FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report
(Date of earliest event reported)
December 4, 1998
US Airways, Inc.
(Commission file number: 1-8442)
(Exact name of registrant as specified in its charter)
Delaware US Airways, Inc. 53-0218143
(State of incorporation (I.R.S. Employer Identification No.)
of registrant)
US Airways, Inc.
2345 Crystal Drive, Arlington, VA 22227
(Address of principal executive offices)
(703) 872-7000
(Registrant's telephone number, including area code)
Item 7. Financial Statements and Exhibits
The following document is being filed as an Exhibit in
connection with, and incorporated by reference into, US Airways,
Inc.'s Registration Statement on Form S-3 (Registration No. 33-
64425). The Registration Statement and the Prospectus
Supplement, dated December 4, 1998 to the Prospectus, dated
September 28, 1998, relate to the offering by US Airways, Inc. of
Pass Through Certificates, Series 1998-1.
Reg. No. 33-64425
Exhibit No. Document
- ----------------- --------
Exhibit 1(a) Underwriting Agreement relating to
the issuance of Pass Through
Certificates, Series 1998-1.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
US AIRWAYS, INC. (REGISTRANT)
December 9, 1998 By: /s/ Thomas A. Mutryn
--------------------------
Thomas A. Mutryn
Senior Vice President, Finance
Chief Financial Officer
Exhibit 1(a)
US AIRWAYS, INC.
UNDERWRITING AGREEMENT
December 4, 1998
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston Corporation
Lehman Brothers Inc.
Salomon Smith Barney Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
US AIRWAYS, INC., a Delaware corporation (the
"Company"), proposes that State Street Bank and Trust Company, as
pass through trustee (the "Trustee") under the Class A Trust and
the Class B Trust (each as defined below), issue and sell to the
underwriters named in Schedule II hereto its pass through
certificates in the aggregate principal amounts and with the
interest rates and final distribution dates set forth on Schedule
I hereto (the "Offered Certificates") on the terms and conditions
stated herein and in Schedule III. Concurrently with the
issuance of the Offered Certificates the Company is proposing
that the Trustee under the Class C Trust (as defined below) issue
and sell to Airbus Industrie Financial Services ("AIFS") pursuant
to an agreement between the Company and AIFS (the "Class C
Purchase Agreement") its pass through certificates in the
aggregate principal amount and with the interest rate and final
distribution date set forth on Schedule IV hereto (the "Class C
Certificates", together with the Offered Certificates, the
"Certificates").
The Certificates will be issued pursuant to the Pass
Through Trust Agreement (the "Basic Agreement") between the
Company and the Trustee, as supplemented with respect to each
series of Certificates by a separate Pass Through Trust
Supplement to be dated as of the Closing Date (as defined below)
(individually, a "Series Supplement"), between the Company and
the Trustee (the Basic Agreement as supplemented by each such
Series Supplement being referred to herein individually as a
"Pass Through Agreement"). The Series Supplements are related to
the creation and administration of US Airways Pass Through Trust,
Series 1998-1A (the "Class A Trust"), US Airways Pass Through
Trust, Series 1998-1B (the "Class B Trust"; together with the
Class A Trust, the "Covered Trusts") and US Airways Pass Through
Trust, Series 1998-1C (the "Class C Trust"; together with the
Covered Trusts, the "Trusts").
As used herein, unless the context otherwise requires,
the term "Underwriters" shall mean the firms named as
Underwriters in Schedule II, and the term "you" shall mean the
Underwriter or Underwriters, if no underwriting syndicate is
purchasing the Offered Certificates or the representative or
representatives of the Underwriters if an underwriting syndicate
is purchasing the Offered Certificates, as indicated in Schedule
II.
The cash proceeds of the offering of Certificates by
each Trust will be paid to First Security Bank, National
Association, as escrow agent (the "Escrow Agent"), under an
Escrow and Paying Agent Agreement among the Escrow Agent, the
Underwriters (in the case of the Offered Certificates) or AIFS
(in the case of the Class C Certificates), the Trustee and State
Street Bank and Trust Company, as paying agent (the "Paying
Agent"), for the benefit of the holders of Certificates issued by
such Trust (each, an "Escrow Agreement"). The Escrow Agent will
deposit such cash proceeds (each, a "Deposit") with Credit Suisse
First Boston, New York Branch (in the case of the Offered
Certificates) and Citibank, N.A. (in the case of the Class C
Certificates) (each, a "Depositary"), in accordance with a
Deposit Agreement relating to the respective Trust (each, a
"Deposit Agreement"), and will withdraw Deposits upon request to
allow the Trustee to purchase Equipment Notes (as defined in the
Note Purchase Agreement referred to herein) from time to time
pursuant to a Note Purchase Agreement to be dated as of the
Closing Date (the "Note Purchase Agreement") among the Company,
State Street Bank and Trust Company, as Trustee of each of the
Trusts, as Subordination Agent (as hereinafter defined) and as
Paying Agent, and the Escrow Agent. Each Escrow Agent will issue
receipts to be attached to each related Certificate ("Escrow
Receipts") representing each holder's fractional undivided
interest in amounts deposited with such Escrow Agent and will pay
to such holders through the related Paying Agent interest accrued
on the Deposits and received by such Paying Agent pursuant to the
related Deposit Agreement at a rate per annum equal to the
interest rate applicable to the corresponding Certificates.
Certain amounts of interest payable on the Certificates
will be entitled to the benefits of separate liquidity
facilities. ABN Amro Bank N.V., Chicago Branch (the "Liquidity
Provider") will enter into a separate revolving credit agreement
with respect to each Trust (each, a "Liquidity Facility") to be
dated as of the Closing Date for the benefit of the holders of
the Certificates. The Liquidity Provider and the holders of the
Certificates will be entitled to the benefits of an Intercreditor
Agreement to be dated as of the Closing Date (the "Intercreditor
Agreement") among the Trustees, State Street Bank and Trust
Company, as subordination agent and trustee thereunder (the
"Subordination Agent"), and the Liquidity Provider.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a shelf registration statement on
Form S-3 (File No. 333-64425) relating to pass through
certificates (such registration statement, in the form in which
it became effective (including the respective exhibits thereto
and the respective documents filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act"), that are
incorporated by reference therein, as amended at the date hereof,
being herein referred to as the "Registration Statement") and the
offering thereof from time to time in accordance with Rule 415 of
the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the
"Securities Act"). The Registration Statement has been declared
effective by the Commission.
The Company has filed with, or transmitted for filing
to, or shall promptly hereafter file with or transmit for filing
to, the Commission a prospectus supplement (the "Prospectus
Supplement") specifically relating to the Offered Certificates
pursuant to Rule 424 under the Securities Act. The term "Basic
Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary
prospectus" means a preliminary prospectus supplement
specifically relating to the Offered Certificates, together with
the Basic Prospectus. As used herein, the terms "Basic
Prospectus", "Prospectus" and "preliminary prospectus" shall
include in each case the documents, if any, incorporated by
reference therein. The terms "supplement", "amendment" and
"amend" as used herein shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company
with the Commission pursuant to the Exchange Act.
Capitalized terms not otherwise defined in this
Agreement shall have the meanings specified therefor in the Pass
Through Agreements, the Note Purchase Agreement or the
Intercreditor Agreement referred to in the Pass Through
Agreements; provided that, as used in this Agreement, the term
"Operative Agreements" shall mean the Deposit Agreements, the
Escrow Agreements, the Intercreditor Agreement, the Liquidity
Facilities, the Indentures, the Leases, the Note Purchase
Agreement, the Participation Agreements, the Trust Agreements and
the Pass Through Agreements. As used herein the term "Financing
Agreements" shall mean with respect to each Aircraft the related
FAA Bill of Sale (as defined in the Participation Agreements),
Indenture, Lease and the Lease Supplement (as defined in the
Participation Agreements).
1. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to, and agrees with, you and each
Underwriter named in Schedule II that as of the date hereof:
(a) The Registration Statement and the Prospectus
comply as to form and, as amended or supplemented, if
applicable, will comply as to form in all material respects
with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
The Registration Statement, at the time it became
effective, did not contain, and the Registration Statement,
as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, not misleading; the Prospectus, as of the date
hereof does not contain, and will not contain for so long as
you are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Offered
Certificates, an untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements therein, in light of the circumstances under
which they were made, not misleading; provided, however,
that the representations and warranties in this subsection
(a) shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance
upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such
Underwriter through Morgan Stanley & Co. Incorporated
expressly for use in the Registration Statement or
Prospectus or to that part of the Registration Statement
which constitutes the Statement of Eligibility of Trustee on
Form T-1.
The Registration Statement has become effective. No
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(b) The documents incorporated by reference in the
Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act,
and, when read together and with the other information in
the Prospectus, did not and will not contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances
under which they were or are made, not misleading.
(c) The accountants who certified the financial
statements included or incorporated by reference in the
Registration Statement or Prospectus are independent public
accountants as required by the Securities Act.
(d) None of the Company or any Covered Trust is an
"investment company", within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company
Act"); and after giving effect to the offering and sale of
the Offered Certificates and the application of the proceeds
thereof as described in the Prospectus, neither of the
Covered Trusts will be, nor will the escrow arrangements
relating to the Covered Trusts contemplated by the
respective Escrow Agreements result in the creation of, an
"investment company", as defined in the Investment Company
Act.
(e) The Company has complied with all provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida) or is exempt therefrom.
(f) The execution and delivery by the Company of
this Agreement, each Pass Through Agreement and the other
Operative Documents to which the Company is or will be a
party, the consummation by the Company of the transactions
contemplated herein and therein and in the Prospectus and
compliance with the terms hereof and thereof do not and will
not result in any violation of the charter or by-laws of the
Company and do not and will not conflict with or violate, or
result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company under (i) any indenture,
mortgage or loan agreement, or any other agreement or
instrument to which the Company is a party or by which it
may be bound or to which any of its properties may be
subject (except for such conflicts, breaches, violations,
defaults, liens, charges or encumbrances that, individually
or in the aggregate, would not have a material adverse
effect on the financial condition or on the earnings or
business affairs of the Company and its subsidiaries
considered as a single entity), (ii) any existing applicable
law, rule or regulation or (iii) any judgment, order or
decree of any government, governmental instrumentality or
court, domestic or foreign, having jurisdiction over the
Company or any of its properties.
(g) No authorization, approval, consent, license,
order of or registration or filing with, or the giving of
notice to, any government, governmental instrumentality or
court, domestic or foreign, or other regulatory body or
authority (other than with respect to the effectiveness of
the Registration Statement under the 1933 Act of the
qualification of the Pass Through Agreements under Trust
Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (the "1939 Act")
and other than with respect to the securities or Blue Sky
laws of the various states) is required to be obtained or
made by the Company for the valid authorization, execution,
delivery and performance by the Company of this Agreement or
any of the Operative Documents to which the Company is a
party or the consummation of the transactions contemplated
by this Agreement or any such Operative Documents, except
such as may be required under (i) the securities or Blue Sky
laws of the various states or (ii) the Transportation Code
and the Uniform Commercial Code as in effect in Delaware and
Virginia, which filings or recordings referred to in this
clause (ii), with respect to any particular set of Financing
Agreements, shall have been made or duly presented for
filing or recordation in all material respects or shall be
in the process of being duly filed or filed for recordation
in all material respects, on or prior to the applicable
Delivery Date for the Aircraft related to such Financing
Agreements.
(h) This Agreement has been duly authorized by all
necessary corporate action and duly executed and delivered
by the Company. The Operative Documents to which the Company
will be a party will be duly executed and delivered by the
Company on or prior to the Closing Date or the applicable
Delivery Date, as the case may be.
(i) The Operative Documents to which the Company is
or will be a party have been duly authorized by all
necessary corporate action, will each be substantially in
the form heretofore supplied to you and will constitute,
when duly executed and delivered by the Company (assuming
that such Operative Documents constitute valid and binding
obligations of each other party thereto), valid and binding
obligations of the Company, enforceable against the Company
in accordance with their terms, except to the extent that
enforceability thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless
of whether enforceability is considered in a proceeding at
law or in equity). The Basic Agreement as executed is
substantially in the form filed as an exhibit to the
Registration Statement and has been duly qualified under the
1939 Act. The Certificates and the Operative Documents to
which the Company is, or is to be, a party will conform in
all material respects to the descriptions thereof in the
Prospectus.
(j) When executed, issued, authenticated and
delivered pursuant to the provisions of the Pass Through
Agreements and sold and paid for as provided in this
Agreement and the Class C Purchase Agreement, the
Certificates will constitute valid and legally binding
obligations of the Trustee enforceable in accordance with
their terms, except to the extent that enforceability
thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in
equity); and the Certificates will be entitled to the
benefits provided by such Pass Through Agreements. When
executed, authenticated, issued and delivered in the manner
provided for in the related Escrow Agreements, the Escrow
Receipts will be legally and validly issued and will be
entitled to the benefits of the related Escrow Agreements.
(k) The Equipment Notes to be issued under each
applicable Indenture, when duly executed and delivered by
the related Owner Trustee or the Company, as the case may
be, and duly authenticated by the Indenture Trustee in
accordance with the terms of such Indenture, will be duly
issued under such Indenture and will constitute the valid
and binding obligations of such Owner Trustee or the
Company, as the case may be, enforceable in accordance with
their terms, except that enforceability thereof may be
limited by (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity); and the
Holders thereof will be entitled to the benefits of such
Indenture.
(l) No Appraiser is an affiliate of the Company or
has a substantial interest, direct or indirect, in the
Company. None of the officers and directors of any of the
Appraisers is connected with the Company or any of its
affiliates as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar
functions.
(m) Each preliminary prospectus filed as part of
the registration statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, when so filed complied as to form in all
material respects with the Securities Act.
The parties agree that any certificate signed by a duly
authorized officer of the Company and delivered to an
Underwriter, or to counsel for the Underwriters, on the Closing
Date and in connection with this Agreement or the offering of the
Certificates, shall be deemed a representation and warranty by
(and only by) the Company to the Underwriters as to the matters
covered thereby.
2. PURCHASE AND DELIVERY. (a) On the basis of the
representations, warranties and agreements herein contained, but
subject to the terms and the conditions herein set forth and in
Schedule III, the Company agrees to cause the Trustee to sell to
each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Trustee, at the purchase price
specified in Schedule I, the respective amounts of each Class of
Offered Certificates set forth opposite the name of such
Underwriter in Schedule II. Concurrently with the issuance of
the Offered Certificates, the Escrow Agent shall issue and
deliver to the Trustee the Escrow Receipts in accordance with the
terms of the Escrow Agreements, which Escrow Receipts shall be
attached to the related Certificates.
(b) The Company is advised by you that the
Underwriters propose to make a public offering of the Offered
Certificates as soon after this Agreement has been entered into
as in your judgment is advisable as set forth in the Prospectus.
(c) As compensation to the Underwriters for their
respective commitments and obligations hereunder in respect of
the Offered Certificates, including their respective undertakings
to distribute the Offered Certificates, the Company will pay to
each Underwriter an amount equal to that percentage of the
aggregate principal amount of each Class of Offered Certificates
purchased by such Underwriter (as set forth in Schedule II).
Such payment will be made on the Closing Date simultaneously with
the issuance and sale of the Offered Certificates (with the
related Escrow Receipts attached) to the Underwriters. Payment
of such compensation shall be made by wire transfer of
immediately available funds.
(d) Delivery of and payment of the purchase price
for the Offered Certificates to be purchased by the Underwriters
(with attached Escrow Receipts) shall be made at the offices of
Skadden, Arps, Slate, Meagher & Flom, LLP, 1440 New York Avenue,
N.W., Washington D.C. 20005 (or at such other place as shall be
agreed upon by you and the Company) at 10:00 A.M., New York City
time, on the sixth business day following the date hereof or such
other date, time and place as may be agreed upon by the Company
and you (such date and time of delivery and payment for the
Offered Certificates (with attached Escrow Receipts) being herein
called the "Closing Date"). Delivery of the Offered Certificates
(with attached Escrow Receipts) issued by each Trust shall be
made to your account at The Depository Trust Company ("DTC") for
the respective accounts of the several Underwriters against
payment by the Underwriters of the purchase price thereof by wire
transfer of immediately available funds to the accounts and in
the manner specified in the related Escrow Agreements. The
Offered Certificates (with attached Escrow Receipts) issued by
each Trust shall be in the form of one or more fully registered
global certificates, and shall be deposited with the related
Trustee as custodian for DTC and registered in the name of Cede &
Co.
(e) The Company agrees to have the Offered
Certificates (with attached Escrow Receipts) available for
inspection and checking by you in New York, New York not later
than 1:00 P.M. on the business day prior to the Closing Date.
3. CONDITIONS TO CLOSING. The several obligations
of the Underwriters to purchase and pay for the Offered
Certificates pursuant to this Agreement are subject to the
accuracy of and compliance with the representations and
warranties of the Company contained herein as of the date hereof
and the Closing Date, to the accuracy of the statements of the
officers of the Company made in any certificate furnished
pursuant to the provisions hereof, to the performance by the
Company of its covenants and other obligations hereunder and to
the following further conditions:
(a) Subsequent to the execution and delivery of
this Agreement and prior to the Closing Date, there shall
not have occurred any downgrading in the rating accorded any
of the securities of the Company by Moody's Investors
Service, Inc. or Standard & Poor's Ratings Service, nor
shall any notice have been given of (i) any intended or
potential downgrading or (ii) any review or possible change
in such rating.
(b) Subsequent to the execution and delivery of
this Agreement and prior to the Closing Date, there shall
not have occurred any material adverse change, or any
development reasonably likely to result in a material
adverse change, in the financial condition or in the
earnings or business affairs of the Company from that set
forth or contemplated in the preliminary prospectus, that,
in your judgment, makes it impracticable to market the
Offered Certificates on the terms and in the manner
contemplated in the Prospectus.
(c) You shall have received on the Closing Date a
certificate, dated the Closing Date and signed by a Vice
President, Treasurer or Assistant Treasurer of the Company,
to the effect (i) that no event set forth in clause (a)
above has occurred, (ii) that the representations and
warranties of the Company contained herein are true and
correct as of the Closing Date (except to the extent that a
representation or warranty expressly relates to an earlier
or later date, in which case it will be true and correct as
of such date), (iii) that there shall not have occurred any
material adverse change, or any development reasonably
likely to result in a material adverse change, in the
financial condition or in the earnings or business affairs
of the Company from that set forth or contemplated in the
preliminary prospectus, and (iv) that the Company shall have
performed in all material respects all of its obligations to
be performed hereunder on or prior to the Closing Date. The
officer signing and delivering such certificate may rely on
the best of his or her knowledge.
(d) You shall have received on the Closing Date an
opinion, dated the Closing Date, from the General Counsel,
Deputy General Counsel or Associate General Counsel of the
Company, in form satisfactory to you and your counsel, to
the effect that:
(i) The Company has been duly incorporated and
is validly existing as a corporation in good standing
under the laws of the State of Delaware and has all
necessary corporate power and authority under such laws
to own its properties, to conduct its business as
described in the Prospectus, to enter into this
Agreement and each of the Operative Agreements to which
it is a party and to perform its obligations hereunder
and thereunder (except where the failure to have such
power or authority would not have a material adverse
effect on the Company); and the Company is duly
qualified to transact business as a foreign corporation
in good standing in each jurisdiction in which its
ownership of property or the conduct of its business
requires such qualification (except where the failure
to so qualify would not have a material adverse effect
upon the Company);
(ii) The Company is an "air carrier" and a
"citizen of the United States" within the meaning of
the Transportation Code, and is "an air carrier
operating under a certificate of convenience and
necessity issued by the Civil Aeronautics Board" within
the meaning of 11 U.S.C. Section 1110; the descriptions in
the Registration Statement and the Prospectus with
respect to statutes, contracts, administrative orders
and regulations and legal and governmental proceedings
are accurate and fairly summarize the information
required to be shown; and there are, to the best of our
counsel's knowledge, no statutes, administrative orders
or regulations or pending or threatened legal or
governmental proceedings required to be described in
the Registration Statement or the Prospectus which are
not described as required, nor any contracts or
documents of a character required to be described or
referred to in the Registration Statement or the
Prospectus, or to be filed as exhibits to the
Registration Statement, that are not so described,
referred to or filed as required;
(iii) The statements in the Prospectus as to
the routes that the Company presently operates or is
authorized to operate are correct in all material
respects. Except as disclosed in the Prospectus, no
action or proceeding has been instituted or to such
counsel's knowledge, has been threatened by the United
States Department of Transportation, the Federal
Aviation Administration or the aeronautical authorities
of any other country that would impair the Company's
ability to operate such routes;
(iv) This Agreement has been duly authorized,
executed and delivered by the Company;
(v) No authorization, approval, consent,
license, order of, or registration with, or the giving
of notice to, any government, governmental
instrumentality, or court, domestic or foreign, or
other regulatory body or authority (other than with
respect to the effectiveness of the Registration
Statement under the 1933 Act or the qualification of
the Basic Agreement under the 1939 Act and other than
with respect to the securities or Blue Sky laws of the
various states and with respect to any registration,
filing or recording that may be required under the
Transportation Code and the Uniform Commercial Code as
in effect in various jurisdictions) is required to be
obtained or made by the Company for the valid
authorization, issuance, sale and delivery of the
Offered Certificates and the Equipment Notes relating
thereto or for the valid authorization, execution,
delivery and performance by the Company of this
Agreement and each of the Operative Agreements to which
the Company is a party or the consummation of the
transactions contemplated by this Agreement and such
Operative Agreements;
(vi) The execution and delivery by the Company
of this Agreement and the Operative Agreements to which
the Company is or will be a party, the issuance and
sale of the Offered Certificates and the related
Equipment Notes, the issuance of the Escrow Receipts
attached to the Offered Certificates, the consummation
by the Company of the transactions contemplated herein
and therein and in the Prospectus and compliance with
the terms hereof and thereof do not and will not result
in any violation of the charter or by-laws of the
Company and do not and will not conflict with or
violate, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company
under (A) any indenture, mortgage or loan agreement, or
any other agreement or instrument known to such
counsel, to which the Company is a party or by which
either it be bound or to which any of its properties
may be subject (except for such conflicts, breaches,
defaults, violations, liens, charges or encumbrances
that, individually or in the aggregate, would not have
a material adverse effect on the financial condition or
on the earnings or business affairs of the Company and
its subsidiaries considered as a single entity),
(B) any existing applicable law, rule or regulation
(other than the securities or Blue Sky laws of the
various states, as to which such counsel need express
no opinion) or (C) any judgment, order or decree known
to such counsel of any government, governmental
instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its properties;
(vii) No default exists in the performance or
observance of any material obligation, agreement,
covenant or condition contained in any contract,
indenture, loan agreement, note, lease or other
agreement or instrument that is described or referred
to in the Registration Statement or the Prospectus or
filed as an exhibit to the Registration Statement;
(viii) Except as disclosed in the Prospectus,
there is no action, suit or proceeding before or by any
government, governmental instrumentality or court,
domestic or foreign, now pending or, to the knowledge
of such counsel, threatened against or affecting the
Company that might reasonably be expected to result in
any material adverse change in the financial condition
or in the earnings or business affairs of the Company,
or that could adversely affect the consummation of the
transactions contemplated by this Agreement or any of
the other Operative Agreements to which the Company is
a party; and
(ix) Such counsel has participated in the
preparation of the Registration Statement, the
Prospectus and the documents incorporated by reference
in the Prospectus and such counsel has no reason to
believe (A) that the Registration Statement or any
amendment thereto (except for the financial statements
and other financial or statistical data included or
incorporated by reference therein or omitted therefrom,
and except for the Statement of Eligibility on Form T-1
of the Trustee, as to which such counsel need express
no opinion), at the time the Registration Statement
became effective, contained and, as of the date such
opinion is delivered, contains any untrue statement of
a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or (B) that the
Prospectus or any amendment or supplement thereto
(except for the financial statements and other
financial or statistical data included or incorporated
by reference therein or omitted therefrom, as to which
such counsel need express no opinion), at the time the
Prospectus was issued, at the time any amended or
supplemented Prospectus was issued or as of the Closing
Date, contained any untrue statement of a material fact
or omitted to state a material fact necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not
misleading.
(e) You shall have received on the Closing Date an
opinion, dated the Closing Date, of Skadden, Arps, Slate,
Meagher & Flom, counsel for the Company, in form and
substance reasonably satisfactory to you and substantially
to the effect set forth in Exhibit A hereto.
(f) You shall have received on the Closing Date an
opinion of Bingham Dana, LLP, counsel for State Street Bank
and Trust Company, individually and as Trustee,
Subordination Agent and Paying Agent, dated the Closing
Date, in form and substance reasonably satisfactory to you
and substantially to the effect set forth in Exhibit B
hereto.
(g) You shall have received on the Closing Date an
opinion of Ray, Quinney & Nebeker, counsel for the Escrow
Agent, dated the Closing Date, in form and substance
reasonably satisfactory to you and substantially to the
effect set forth in Exhibit C hereto.
(h) You shall have received on the Closing Date an
opinion of Vedder, Price, Kaufman & Kammholz, counsel for
the Liquidity Provider, dated the Closing Date, in form and
substance reasonably satisfactory to you and substantially
to the effect set forth in Exhibit D hereto.
(i) You shall have received on the Closing Date the
opinions of Giovanni Peditto and Louise Firestone, in-house
counsel for the Depositary for the Covered Trusts, and an
opinion of Shearman & Sterling, special counsel for the
Depositary for the Covered Trusts, each dated the Closing
Date, each in form and substance reasonably satisfactory to
you and substantially to the effect set forth in Exhibits E-
1, E-2 and E-3 hereto, respectively.
(j) You shall have received on the Closing Date an
opinion of Shearman & Sterling, as counsel for the
Underwriters, dated as of the Closing Date, with respect to
the issuance and sale of the Offered Certificates, the
Registration Statement, the Prospectus and other related
matters as the Underwriters may reasonably require.
(k) On the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have
been issued under the Securities Act and no proceedings
therefor shall have been instituted or threatened by the
Commission.
(l) Each of the Appraisers shall have furnished to
the Underwriters a letter from such Appraiser, addressed to
the Company and dated the Closing Date, confirming that such
Appraiser and each of its directors and officers (i) is not
an affiliate of the Company or any of its affiliates,
(ii) does not have any substantial interest, direct or
indirect, in the Company or any of its affiliates and
(iii) is not connected with the Company or any of its
affiliates as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar
functions.
(m) At the Closing Date, each of the Operative
Agreements (other than the Indentures, Leases and
Participation Agreements) shall have been duly executed and
delivered by each of the parties thereto; the
representations and warranties of the Company contained in
each of such executed Operative Agreements shall be true and
correct in all material respects as of the Closing Date
(except to the extent that they relate solely to an earlier
or later date, in which case they shall be true and correct
as of such earlier or later date) and the Underwriters shall
have received a certificate of the President or a Vice
President of the Company, dated as of the Closing Date, to
such effect.
(n) On the Closing Date, the Offered Certificates
shall be rated "AA-", in the case of the Offered
Certificates of the Class A Trust and "A", in the case of
the Offered Certificates of the Class B Trust, by Standard &
Poor's Ratings Service; "A2", in the case of the Offered
Certificates of the Class A Trust and "Baa1", in the case of
the Offered Certificates of the Class B Trust, by Moody's
Investors Service, Inc.
(o) The Underwriters shall have received on each of
the date of this Agreement and the Closing Date, a letter
dated the date hereof or the Closing Date, as the case may
be, in form and substance satisfactory to the Underwriters,
from the Company's independent public accountants,
containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain other
financial or statistical data and certain financial
information contained in or incorporated by reference into
the Registration Statement and the Prospectus.
(p) The Class C Certificates (with attached Escrow
Receipts) in the amount and containing the terms described
in the Prospectus shall be concurrently issued and
purchased.
4. COVENANTS OF THE COMPANY. The Company covenants
with each Underwriter as follows:
(a) The Company has prepared a preliminary
prospectus, and immediately following the execution of this
Agreement, the Company will prepare a Prospectus Supplement
in connection with the offering of the Offered Certificates.
The Company will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424
under the Securities Act.
(b) The Company will notify you promptly (i) of the
effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the Commission for
filing of any supplement to the Prospectus or any document
to be filed pursuant to the Exchange Act which will be
incorporated by reference in the Prospectus, (iii) of the
receipt of any comments from the Commission with respect to
the Registration Statement, the Prospectus or the Prospectus
Supplement relating in any way to the offer and sale of the
Offered Certificates, (iv) of any request by the Commission
for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional
information and (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose.
(c) The Company will give you notice of its
intention to file or prepare any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus, whether by the filing of documents pursuant to
the Exchange Act, the Securities Act or otherwise, and will
furnish you with copies of any such amendment or supplement
or other documents proposed to be filed or prepared a
reasonable time in advance of such proposed filing or
preparation, as the case may be.
(d) The Company will deliver to you as many signed
and conformed copies of the Registration Statement (as
originally filed) and of each amendment thereto (including
exhibits filed therewith or incorporated by reference
therein and documents incorporated by reference in the
Prospectus) as you may reasonably request. The Company will
furnish to you, without charge, as many copies of the
Prospectus and any supplements and amendments thereto as you
may reasonably request so long as you are required to
deliver a Prospectus in connection with sales or
solicitations of offers to purchase the Offered
Certificates.
(e) If, during the period after the first date of
the public offering of the Offered Securities as in the
written opinion of counsel for the Underwriters (which
counsel shall be reasonably acceptable to the Company,
provided that Shearman & Sterling shall be acceptable to the
Company) the Prospectus is required by the Securities Act to
be delivered in connection with sales of the Offered
Certificates by an Underwriter or dealer any event shall
occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of
a material fact or omit to state any material fact necessary
in order to make the statements therein in the light of the
circumstances existing at the time it is delivered to a
purchaser, not misleading or if it shall be necessary, at
any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the
requirements of the Securities Act or the rules and
regulations of the Commission thereunder, the Company will
promptly prepare and file with the Commission such amendment
or supplement, whether by filing documents pursuant to the
Exchange Act, the Securities Act or otherwise, as may be
necessary to correct such untrue statement or omission or to
make the Registration Statement and Prospectus comply with
such requirements.
(f) The Company will endeavor to qualify the
Offered Certificates for offer and sale under the securities
or Blue Sky laws of such jurisdictions as you shall
reasonably request and to maintain such qualification for as
long as you shall reasonably request (provided, however,
that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign
corporation or to subject itself to taxation as doing
business in any jurisdiction in which it is not otherwise
required to be so qualified) and to pay all expenses
(including reasonable fees and disbursements of counsel) in
connection with such qualification and in connection with
the determination of the eligibility of the Offered
Certificates for investment under the laws of such
jurisdictions as you may designate, as well as all
reasonable expenses payable in connection with the review
(if any) of the offering of the Offered Certificates by the
National Association of Securities Dealers, Inc. (including
any filing fees and reasonable fees and expenses of counsel
for the Underwriters in connection therewith).
(g) Whether or not any sale of such Offered
Securities is consummated, the Company will pay or cause to
be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the
preparation and filing of the Registration Statement and all
amendments thereto, the Preliminary Prospectus, if any, and
the Prospectus and any amendments or supplements thereto;
(ii) the filing of this Agreement; (iii) the preparation,
issuance and delivery of the Offered Certificates; (iv) the
reasonable fees and disbursements of the Company's
accountants and counsel, of the Trustee, the Subordination
Agent, each Liquidity Provider, each Depositary, the Escrow
Agent, the related Owner Trustees and the Indenture Trustee
and their respective counsel, and of any registrar, paying
agent and authenticating agent; (v) the qualification of the
Offered Certificates under securities laws in accordance
with the provisions of Section 4(f), including filing fees
and the reasonable fees and disbursements of counsel to the
Underwriters in connection therewith and in connection with
the preparation of any Blue Sky Survey and any Legal
Investment Survey; (vi) the printing and delivery to the
Underwriters in quantities as hereinabove stated of copies
of the Registration Statement and any amendments thereto,
and of the Prospectus and any amendments or supplements
thereto, and the delivery by the Underwriters of the
Prospectus and any amendments or supplements thereto in
connection with solicitations or confirmations of sales of
the Offered Certificates; (vii) the preparation and delivery
to the Underwriters of copies of the Pass Through Agreements
and the other Operative Agreements, including all expenses
incident to the performance of the Company's obligations
under the Pass Through Agreements, Participation Agreements,
Indentures, Leases and each of the other agreements and
instruments referred to in the Indentures and Participation
Agreements; (viii) any fees charged by rating agencies for
the rating of the Offered Certificates; and (ix) all other
costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is
not otherwise made in this Section.
(h) The Company will not, during the period
beginning on the date of this Agreement and continuing to
the Closing Date, offer or sell, or enter into any agreement
to sell, any equipment notes, pass through certificates,
equipment trust certificates or equipment purchase
certificates secured by aircraft owned or leased by the
Company (or rights relating thereto), other than the Class C
Certificates and the Equipment Notes relating thereto,
without the prior written consent of the Underwriters.
(i) The Company, during the period when the
Prospectus is required to be delivered under the Securities
Act, will file promptly all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15(d) of
the Exchange Act.
(j) The Company will make generally available to
its securities holders and you as soon as practicable (but
in any event not later than 45 days) after the close of the
period covered thereby, an earnings statement (which shall
satisfy the provisions of Section 11(a) under the Securities
Act) covering each twelve-month period beginning, in each
case, not later than the first day of the Company's first
full fiscal quarter after the date of this Agreement.
5. INDEMNIFICATION AND CONTRIBUTION. (a) The
Company agrees to indemnify and hold harmless each Underwriter,
and each person, if any, who controls such Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act, from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they
were made not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use
therein; provided, however, that the foregoing indemnity
agreement, with respect to any Preliminary Prospectus shall not
inure to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages or liabilities
purchased Offered Certificates, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments
or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the
sale of the Offered Certificates to such person, and if the
Prospectus (as so amended or supplemented) would have cured the
defects giving rise to such losses, claims, damages or
liabilities.
(b) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from
the Company to such Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company
in writing by such Underwriter through Morgan Stanley & Co.
Incorporated expressly for use in the Registration Statement,
any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any
governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to
either paragraph (a) or (b) above, such person (the "indemnified
party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay
the reasonable fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the
reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have agreed to the
retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in connection
with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of
more than one firm (in addition to any local counsel) for all
such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Morgan Stanley & Co. Incorporated in the
case of parties indemnified pursuant to paragraph (a) above and
by the Company in the case of parties indemnified pursuant to
paragraph (b) above. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of
such proceeding.
(d) To the extent the indemnification provided for
in paragraph (a) or (b) of this Section 5 is unavailable to an
indemnified party or insufficient in respect of any losses,
claims, damages or liabilities, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company, on the
one hand, and the Underwriters, on the other hand, from the
offering of the Offered Certificates or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the
Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other hand in connection
with the offering of the Offered Certificates shall be deemed to
be in the same respective proportions as the net proceeds from
the offering of such Offered Certificates (before deducting
expenses) received by the Trusts and the total underwriting
discounts and commissions received by the Underwriters, in each
case as set forth in (or in the notes to) the table on the cover
of the Prospectus, bear to the aggregate offering price of the
Offered Certificates. The relative fault of the Company on the
one hand and of the Underwriters on the other hand shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and
the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant
to this Section 5 are several in proportion to the respective
principal amount of Offered Certificates they have purchased
hereunder, and not joint.
(e) The Company and the Underwriters agree that it
would not be just or equitable if contribution pursuant to this
Section 5 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by
any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in
paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5, no Underwriter
shall be required to contribute any amount in excess of the
amount by which the total price at which the Offered Certificates
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The indemnity and
contribution provisions contained in this Section 5 and the
representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the
Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the
Offered Certificates. The remedies provided for in this Section
5 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law
or in equity.
(f) The indemnity and contribution provisions
contained in this Section and the representations, warranties and
other statements of the Company contained in this Agreement or
contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter or the Company, its officers
or directors or any person controlling the Company and (iii)
acceptance of and payment for any of the Offered Securities.
6. TERMINATION. This Agreement shall be subject to
termination in your absolute discretion, by oral notice confirmed
in writing, given by you to the Company, which notice cites one
of the specific events set forth below that has occurred, if
(a) after the execution and delivery of this Agreement and prior
to the Closing Date (i) trading generally shall have been
suspended on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., or the Chicago Board of Options
Exchange, (ii) trading of any securities of the Company shall
have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either federal
or New York State authorities or (iv) there shall have occurred
any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your
judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event
singly or together with any other such event makes it, in your
judgment, impracticable to market the Offered Certificates on the
terms and in the manner contemplated in the Prospectus.
7. DEFAULT OF UNDERWRITERS. If, on the Closing
Date, any one or more of the Underwriters shall fail or refuse to
purchase Offered Certificates that it has or they have agreed to
purchase hereunder on such date, and the aggregate principal
amount of Offered Certificates which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not
more than one-tenth of the aggregate principal amount of Offered
Certificates, the other Underwriters shall be obligated severally
in the proportions that the principal amount of Offered
Certificates set forth opposite their respective names in
Schedule II bears to the aggregate principal amount of Offered
Certificates set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you
may specify, to purchase the Offered Certificates which such
defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall
the principal amount of Offered Certificates that any Underwriter
has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 7 by an amount in excess of one-ninth of
such principal amount of Offered Certificates without the written
consent of such Underwriter. If on the Closing Date any
Underwriter or Underwriters shall fail or refuse to purchase
Offered Certificates which it or they have agreed to purchase
hereunder on such date and the aggregate principal amount of
Offered Certificates with respect to which such default occurs is
more than one-tenth of the aggregate principal amount of Offered
Certificates to be purchased on such date and arrangements
satisfactory to you and the Company for the purchase of such
Offered Certificates are not made within 36 hours after such
default, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter or of the Company. In any
such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Any action taken
under this Section shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter
under this Agreement.
If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or refusal
on the part of the Company to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including
the fees and disbursements of their counsel) reasonably incurred
by such Underwriters in connection with this Agreement or the
offering contemplated hereunder.
8. NOTICES. All notices and other communications
under this Agreement shall be in writing, unless otherwise stated
herein, and shall be deemed to have been duly given if delivered,
mailed or transmitted by any standard form of telecommunication.
Notices to you shall be directed to you, c/o Morgan Stanley &
Co. Incorporated, 1585 Broadway, New York, New York 10036,
Attention: Legal Department; and notices to the Company shall be
directed to it at US Airways, Inc., Crystal Park Four, 2345
Crystal Drive, Arlington, VA 22227, Attention: Treasurer.
9. COUNTERPARTS. This Agreement may be signed in
any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were
upon the same instrument.
10. APPLICABLE LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE STATE OF NEW YORK.
11. HEADINGS. The headings of the sections of this
Agreement have been inserted for convenience of reference only
and shall not be deemed a part of this Agreement.
Please confirm your agreement to the foregoing by
signing in the space provided below for that purpose and
returning to us a copy hereof, whereupon this Agreement shall
constitute a binding agreement between us.
Very truly yours,
US AIRWAYS, INC.
By:
----------------------
Agreed, December 4, 1998
MORGAN STANLEY & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
LEHMAN BROTHERS INC.
SALOMON SMITH BARNEY INC.
By: MORGAN STANLEY & CO. INCORPORATED
Acting on behalf of itself and
the other named Underwriters.
By:
-------------------------
SCHEDULE I
Pass Through Certificates, Series 1998-1
Pass Through Aggregate Final Expected
Certificate Principal Interest Distribution
Designation Amount Rate Date
------------ ------------ -------- ----------------
1998-1A $366,486,000 6.85% January 30, 2018
1998-1B 81,282,000 7.35% January 30, 2018
<TABLE>
SCHEDULE II
Pass Through Certificates, Series 1998-1
<CAPTION>
Morgan Credit Suisse Lehman Salomon
Stanley & Co. First Boston Brothers Brothers
Incorporated Corporation Inc. Inc.
------------- ------------- ------------ ------------
<C> <S> <S> <S> <S>
1998-1A $ 91,623,000 $ 91,621,000 $ 91,621,000 $ 91,621,000
1998-1B 20,322,000 20,320,000 20,320,000 20,320,000
----------- ----------- ----------- -----------
111,945,000 111,941,000 111,941,000 111,941,000
=========== =========== =========== ===========
</TABLE>
SCHEDULE III
US AIRWAYS, INC.
Underwriting fees,
discounts, commisions
or other compensation: $3,806,028
SCHEDULE IV
Pass Through Certificates, Series 1998-1
Pass Through Aggregate Final Expected
Certificate Principal Interest Distribution
Designation Amount Rate Date
------------ ------------ ----------- --------------
1998-1C $141,366,000 Not less July 30, 2014
than 6% and
not greater
than 8%
