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EXHIBIT 1
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AMR CORPORATION
Debt Securities
UNDERWRITING AGREEMENT
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Dated: July 7, 1999
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AMR CORPORATION
Debt Securities
UNDERWRITING AGREEMENT
July 7, 1999
To Xxxxxxx, Xxxxx & Co.
Xxxxxxx Xxxxx Barney Inc. as
Representatives of the Underwriters
named in Schedule I
Dear Sirs:
AMR Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the underwriter or underwriters named in Schedule
I hereto certain of its debt securities (the "Offered Securities") as specified
in Schedule II on the terms and conditions stated herein and in said Schedule
II. The Offered Securities will be issued under an indenture dated as of
December 1, 1998 (the "Indenture") between the Company and Citibank, N.A., as
Trustee (the "Trustee"). As used herein, unless the context otherwise requires,
the term "Underwriters" shall mean the firm or firms named as Underwriter or
Underwriters in Schedule I and the term "you" shall mean the Underwriter or
Underwriters, if no underwriting syndicate is purchasing the Offered Securities,
or the representative or representatives of the Underwriters, if an underwriting
syndicate is purchasing the Offered Securities, as indicated in Schedule I.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "1933 Act"). The
Company has prepared and filed on such Form with the Securities and
Exchange Commission (the "Commission") a registration statement (File
No. 333-68211), which also constitutes post-effective Amendment No. 1
to Registration Statement File No. 33-52121 and Registration Statement
File No. 33-46325 (collectively, as amended at the date hereof,
including the exhibits thereto and the documents incorporated by
reference therein, the "Registration Statements"), relating to certain
debt securities of the Company (including the Offered Securities) and
the offering thereof from time to time in accordance with Rule 415
under the 1933 Act. Registration Statement File No. 333-68211 includes
a basic prospectus referred to below which, as supplemented from time
to time, will be used in connection
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with all offerings of such debt securities. The Registration Statements
have been declared effective by the Commission. As provided in Section
3(a), a prospectus supplement reflecting the terms of the Offered
Securities, the terms of the offering thereof and the other matters set
forth therein has been prepared and will be filed together with the
basic prospectus referred to below pursuant to Rule 424 under the 1933
Act (such prospectus supplement, in the form first filed on or after
the date hereof pursuant to Rule 424, is herein referred to as the
"Prospectus Supplement"). The basic prospectus, included in
Registration Statement File No. 333-68211 and relating to all offerings
of securities under the Registration Statements, as supplemented by the
Prospectus Supplement, is herein called the "Prospectus", except that
if such basic prospectus is amended on or prior to the date on which
the Prospectus Supplement is first filed pursuant to Rule 424, the term
"Prospectus" shall refer to such basic prospectus as so amended and
supplemented by the Prospectus Supplement, in either case including the
documents filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), that are
incorporated by reference therein. Any reference herein to the terms
"amendment" or "supplement" with respect to the Registration
Statements, to the Prospectus or to any preliminary prospectus shall be
deemed to refer to and include any documents filed with the Commission
under the 1934 Act after the date hereof, the date the Prospectus is
filed with the Commission, or the date of such preliminary prospectus,
as the case may be, and incorporated therein by reference pursuant to
Item 12 of Form S-3 under the 1933 Act.
(b) On the original effective date of the Registration
Statements, on the effective date of any post-effective amendment
thereto, if any, and on the date of the filing by the Company of any
Annual Report on Form 10-K after the original filing of such
Registration Statements, such Registration Statements complied in all
material respects with the applicable requirements of the 1933 Act and
the rules and regulations of the Commission thereunder (the "1933 Act
Regulations"), and the Trust Indenture Act of 1939, as amended (the
"1939 Act"), and the applicable rules and regulations of the Commission
thereunder (the "1939 Act Regulations") and did not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; the Registration Statements and any amendments thereof, on
the date hereof, and the Prospectus, and any amendments thereof and
supplements thereto, as of their respective filing or issue dates and
at the Closing Time (as defined below), comply and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the 1939 Act Regulations, and none
of such documents, as of any such respective dates, includes or will
include an untrue statement of a material fact or omits or will omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading; except that this
representation and warranty does not apply to statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company in connection with the Registration Statements
or the Prospectus
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or any amendment thereof or supplement thereto by or on behalf of you
expressly for use in the Registration Statements or the Prospectus, or
to statements or omissions in those parts of the Registration
Statements which constitute the Statement of Eligibility under the 1939
Act (Form T-1) of the Trustee.
(c) The consolidated financial statements incorporated by
reference in the Registration Statements and Prospectus present fairly
the consolidated financial position of the Company as of the dates
indicated and the consolidated results of its operations and cash flows
for the periods specified and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
during the periods involved, except as indicated therein, and the
supporting schedules incorporated by reference in the Registration
Statements present fairly the information required to be stated
therein.
(d) 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 1934 Act and the rules and regulations thereunder.
(e) Since the respective dates as of which information is
given in the Registration Statements and the Prospectus, except as
otherwise stated therein or contemplated thereby, there has been no
material adverse change in the condition, financial or otherwise,
results of operations or general affairs of the Company and its
subsidiaries taken as a whole.
(f) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware, has
the corporate power and authority under such laws to own its properties
and conduct its business as described in the Prospectus and is duly
qualified to do business as a foreign corporation in good standing in
the state in which its principal place of business is located.
(g) Each of American Airlines Inc. ("American"), AMR Eagle
Holding Corporation and The SABRE Group Holdings, Inc. is a corporation
duly incorporated and validly existing in good standing under the laws
of its jurisdiction of incorporation, has full corporate power and
authority under such laws to own its properties and to conduct its
business as such business is described in the Prospectus and, in the
case of American, is duly qualified to do business as a foreign
corporation in good standing in the jurisdictions in the United States
of America in which it has intrastate routes or has a principal office
or major overhaul facility and, in the case of each of such other
subsidiaries, is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which such qualification
is required. American is an "air carrier" and a "citizen of the United
States" within the meaning of that portion of the United States Code
comprising those provisions formerly known as the Federal Aviation Act
of 1958, as amended (the
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"Aviation Act"). All of the issued and outstanding capital stock of
each such corporation has been duly authorized and validly issued, is
fully paid and non-assessable and (except for The SABRE Group Holdings,
Inc., approximately 82% of which is owned by the Company) is owned by
the Company, directly or through subsidiaries, free and clear of any
liens, encumbrances, equities or claims.
(h) The Indenture, each supplement thereto, if any, to the
date hereof and the supplement thereto or Board Resolution (as defined
in the Indenture) setting forth the terms of the Offered Securities
(the Indenture, as so supplemented by such supplement or supplements or
Board Resolution, being herein referred to as the "Designated
Indenture"), have been duly authorized by the Company. The Indenture as
executed is substantially in the form filed as an exhibit to
Registration Statement File No. 333-68211. The Designated Indenture,
when duly executed and delivered (to the extent required by the
Indenture) by the Company, will constitute a valid and binding
obligation of the Company and will have been duly qualified under the
1939 Act.
(i) The Offered Securities have been duly authorized by the
Company and, when duly executed by the Company and authenticated by the
Trustee pursuant to the provisions of the Designated Indenture and
delivered in accordance with the terms of the Designated Indenture and
this Agreement, will be duly issued and will constitute valid and
binding obligations of the Company; and the holders thereof will be
entitled to the benefits of the Designated Indenture.
(j) The Offered Securities and the Designated Indenture
conform in all material respects to the descriptions thereof in the
Prospectus.
(k) The issuance and delivery by the Company of the Offered
Securities, the execution and delivery by the Company of this Agreement
and the Designated Indenture, the consummation by the Company of the
transactions herein and therein contemplated, and compliance by the
Company with the terms hereof and thereof do not and will not conflict
with, or result in a breach of, any of the terms or provisions of, or
constitute a default under, the Certificate of Incorporation or
By-Laws, as amended, of the Company or American or any of their
subsidiaries or any material indenture, mortgage, or other agreement or
instrument to which the Company or American or any of their
subsidiaries is a party or by which any of their respective properties
is bound, or any applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Company or American
or any of their subsidiaries or any of their respective properties; and
no consent, approval, authorization or order of any government,
governmental instrumentality or court, domestic or foreign, is required
for valid authorization, issuance and delivery of the Offered
Securities, the valid authorization, execution, delivery and
performance of this Agreement and the Designated Indenture or the
consummation by the Company of the
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transactions contemplated by this Agreement and the Designated
Indenture, except such as are required under the 1933 Act, the 1939 Act
and the securities or Blue Sky laws of the various states.
(m) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
obligation of the Company.
(n) Ernst & Young LLP, who reported on the annual consolidated
financial statements of the Company incorporated by reference in the
Registration Statements, are independent auditors as required by the
1933 Act and the 1933 Act Regulations.
2. Purchase and Sale. (a) On the basis of the representations
and warranties herein contained (except as may be otherwise specified in
Schedule II) and subject to the terms and conditions herein and therein set
forth, the Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at the purchase
price to the Underwriters set forth in Schedule II, the principal amount of
Offered Securities set forth opposite the name of such Underwriter in Schedule
I.
(b) Payment of the purchase price for, and delivery of, the
Offered Securities shall be made at the date, time and location or locations
specified in Schedule II, or at such other date, time or location or locations
as shall be agreed upon by the Company and you, or as shall otherwise be
provided in Section 7 (such date and time being herein called the "Closing
Time"). Unless otherwise specified in Schedule II, payment shall be made to the
Company by federal funds wire transfer payable to the order of the Company,
against delivery to you for the respective accounts of the several Underwriters
of the Offered Securities. Such Offered Securities shall be in such authorized
denominations and, if in registered form, registered in such names as you may
request in writing at least two full business days before the Closing Time.
Certificates for such Offered Securities, which may be in temporary form, will
be made available for examination and packaging by you at the location or
locations at which they are to be delivered at the Closing Time (or such other
location or locations as may be specified for that purpose in Schedule II) not
later than 10:00 A.M. on the business day prior to the Closing Time.
(c) The Company will pay to you at the Closing Time for the
accounts of the Underwriters any fee, commission or other compensation which is
specified in Schedule II hereto. Such payment will be made by federal funds wire
transfer or similar same day funds.
3. Agreements. The Company covenants with each Underwriter as
follows:
(a) If reasonably requested by you in connection with the
offering of the Offered Securities, the Company will prepare a
preliminary prospectus supplement containing such information as you
and the Company deem appropriate, and, immediately following the
execution of this Agreement, the Company will prepare a Prospectus
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Supplement which complies with the 1933 Act and the 1933 Act
Regulations and which sets forth the principal amount of the Offered
Securities and their terms not otherwise specified in the basic
prospectus relating to all offerings of securities under Registration
Statement File No. 333-68211, the name of each Underwriter
participating in the offering and the principal amount of the Offered
Securities that each severally has agreed to purchase, the name of each
Underwriter, if any, acting as representative of the Underwriters in
connection with the offering, the price at which the Offered Securities
are to be purchased by the Underwriters from the Company, any initial
public offering price, any selling concession and reallowance, and such
other information as you and the Company deem appropriate in connection
with the offering of the Offered Securities. The Company will promptly
transmit copies of the Prospectus Supplement to the Commission for
filing pursuant to Rule 424 under the 1933 Act and will furnish to the
Underwriters as many copies of any preliminary prospectus supplement
and the Prospectus as you shall reasonably request.
(b) During the period when a prospectus relating to the
Offered Securities is required to be delivered under the 1933 Act, the
Company will promptly advise you (i) of the effectiveness of any
amendment to the Registration Statements, (ii) of the electronic
transmittal or the delivery to the Commission for filing of any
supplement to the Prospectus or any document that would as a result
thereof be incorporated by reference in the Prospectus, (iii) of any
request by the Commission for any amendment of the Registration
Statements or any amendment or supplement to the Prospectus or for any
additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statements
or the institution or threatening of any proceeding for that purpose,
and (v) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Offered Securities for
sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the 1933 Act, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein in light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the 1933 Act or the 1933 Act Regulations, the
Company promptly will prepare and file with the Commission, subject to
paragraph (d) of this Section 3, an amendment or supplement which will
correct such statement or omissions or an amendment which will effect
such compliance.
(d) At any time when a prospectus relating to the Offered
Securities is required to be delivered under the 1933 Act, the Company
will give you notice of its intention to
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file any amendment to the Registration Statements or any amendment or
supplement to the Prospectus, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish you with copies of any such
amendment or supplement or other documents proposed to be filed within
a reasonable time in advance of filing, and will not file any such
amendment or supplement or other documents in a form to which you shall
reasonably object.
(e) The Company has furnished, or will furnish to you and your
counsel without charge, conformed copies of the Registration Statements
as originally filed and of all amendments thereto, whether filed before
or after such Registration Statements originally become effective
(including exhibits thereto and the documents incorporated therein by
reference), and, so long as delivery of a prospectus by an underwriter
or dealer may be required by the 1933 Act, as many copies of each
preliminary prospectus, the Prospectus and any amendments thereof and
supplements thereto as you may reasonably request.
(f) The Company will use its best efforts to qualify the
Offered Securities for sale under the laws of such jurisdictions as you
may reasonably request and will maintain such qualifications in effect
so long as required for the distribution of such Offered Securities.
The Company, however, shall not be obligated to qualify as a foreign
corporation or file any general consent to service of process under the
laws of any such jurisdiction or subject itself to taxation as doing
business in any such jurisdiction.
(g) The Company, during the period when a prospectus relating
to the Offered Securities is required to be delivered under the 1933
Act, will file promptly all documents required to be filed with the
Commission pursuant to Section 13 or 14 of the 1934 Act.
(h) The Company will make generally available to its security
holders, in each case as soon as practicable, but not later than 45
days after the close of the period covered thereby (90 days in case the
period covered corresponds to a fiscal year of the Company), earnings
statements of the Company which will comply as to form with the
provisions of Rule 158 under the 1933 Act.
(i) Between the date of this Agreement and the Closing Time,
the Company will not, without your prior consent, offer, sell or enter
into any agreement to sell any public debt securities registered under
the 1933 Act (other than the Offered Securities).
(j) If and to the extent specified in Schedule II, the Company
will promptly after the date hereof, in the event it has not already
done so, file an application for the listing of the Offered Securities
on the securities exchange or exchanges specified in said Schedule II
and will use its best efforts to cause such Offered Securities to be
duly authorized for listing thereon, subject to official notice of
issuance, and to be registered under the 1934 Act.
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4. Conditions to the Obligations of the Underwriters. Except
as otherwise provided in Schedule II, the obligations of the Underwriters to
purchase and pay for the Offered Securities pursuant to this Agreement shall be
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
Time, to the accuracy of the statements of the Company's officers made in any
certificates furnished pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder and to the
following additional conditions:
(a) At the Closing Time, no stop order suspending the
effectiveness of the Registration Statements shall have been issued
under the 1933 Act and no proceedings therefor shall have been
instituted or threatened by the Commission.
(b) At the Closing Time, you shall have received:
(1) An opinion, dated the Closing Time, of Xxxx X.
XxXxxxxx, Senior Vice President and General Counsel of the
Company, in form reasonably 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 full corporate power and authority under such
laws to own its properties and to conduct its
business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign
corporation in good standing in the state in which
its principal place of business is located;
(ii) Each of American, AMR Eagle Holding
Corporation and The SABRE Group Holdings, Inc. has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction in which it is incorporated and has full
corporate power and authority under such laws to own
its properties and to conduct its business as
described in the Prospectus; and all of the issued
and outstanding shares of capital stock of each such
subsidiary have been duly authorized and validly
issued and are fully paid and non-assessable and
(except for the SABRE Group Holdings, Inc.,
approximately 82% of which is owned by the Company)
are owned by the Company, directly or through
subsidiaries, free and clear of any liens,
encumbrances, equities or claims; and American is an
"air carrier" and a "citizen of the United States"
within the meaning of the Aviation Act;
(iii) The Designated Indenture has been duly
authorized, executed and delivered by the Company and
constitutes the valid and
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binding obligation of the Company enforceable in
accordance with its terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting enforcement of
creditors' rights generally and by general principles
of equity; and the Indenture has been duly qualified
under the 1939 Act;
(iv) The Offered Securities have been duly
authorized by the Company and, assuming valid
authentication by the Trustee pursuant to the
Designated Indenture, have been duly issued and
delivered by the Company and constitute valid and
binding obligations of the Company enforceable in
accordance with their terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting enforcement of
creditors' rights generally and by general principles
of equity; and the holders thereof will be entitled
to the benefits of the Designated Indenture;
(v) The Offered Securities and the
Designated Indenture conform in all material respects
to the descriptions thereof contained in the
Prospectus, and such descriptions conform in all
material respects to the rights set forth in the
instruments defining the same;
(vi) No authorization, approval, consent or
license of any regulatory body or authority is
required for the valid authorization, issuance and
delivery of the Offered Securities by the Company,
except such as have been obtained under the 1933 Act
and the 1939 Act and such as may be required under
the securities or Blue Sky laws of the various
states;
(vii) The Registration Statements have
become effective under the 1933 Act and, to the best
knowledge of such counsel, no stop order suspending
the effectiveness of such Registration Statements has
been issued and no proceedings for that purpose have
been instituted or threatened;
(viii) The Registration Statements, the
Prospectus and each amendment thereof or supplement
thereto (except for the financial statements and
related schedules and other financial data included
or incorporated by reference therein, as to which
such counsel need express no opinion) comply as to
form in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations; the
Indenture and the Statement of Eligibility of the
Trustee on Form T-1 filed with the Commission as part
of the Registration Statements comply as to form in
all
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material respects with the requirements of the 1939
Act and the 1939 Act Regulations; and each document
filed pursuant to the 1934 Act and incorporated by
reference in the Prospectus (except for the financial
statements and related schedules and other financial
data included or incorporated by reference therein,
as to which such counsel need express no opinion)
appeared on its face, as of its respective filing
date, to comply as to form in all material respects
with the requirements of the 1934 Act and the rules
and regulations thereunder;
(ix) This Agreement has been duly
authorized, executed and delivered by the Company;
(x) The issuance and delivery by the Company
of the Offered Securities, the execution and delivery
by the Company of this Agreement and the Designated
Indenture, the consummation by the Company of the
transactions herein and therein contemplated and in
the manner herein and therein contemplated, and
compliance by the Company with the terms of this
Agreement and the Designated Indenture do not and
will not conflict with, or result in a breach of, any
of the terms or provisions of, or constitute a
default under, the Certificate of Incorporation or
By-Laws, as amended, of the Company or American or
any of their subsidiaries or any indenture or other
agreement or instrument known to such counsel to
which the Company or American or any of their
subsidiaries is a party or by which the Company or
American or any of their subsidiaries is bound or any
law, rule, regulation, judgment or order known to
such counsel to be applicable to the Company or
American or any of their subsidiaries of any court,
regulatory body, administrative agency, government or
governmental body having jurisdiction over the
Company or American or any of their subsidiaries;
(xi) If the Offered Securities are specified
in Schedule II as securities to be listed on a
securities exchange or exchanges prior to the Closing
Time, the Offered Securities are duly authorized for
listing, subject to official notice of issuance, on
the securities exchange or exchanges specified in
said Schedule II;
(xii) To the best knowledge of such counsel,
no holder of securities of the Company or American
has a right to the registration of such securities
under the Registration Statements;
(xiii) Such counsel has no reason to believe
that the statements in the Registration Statements
and the Prospectus with respect to statutes,
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administrative orders and regulations and legal and
governmental proceedings do not fairly and accurately
present in all material respects the information
required to be set forth therein; and there are, to
the best of such counsel's knowledge, no statutes,
administrative orders or regulations or legal or
governmental proceedings required to be described in
the Registration Statements or the Prospectus which
are not described as required, nor any contracts or
documents of a character required to be described in
the Registration Statements or the Prospectus, or to
be filed as exhibits to the Registration Statements,
that are not so described or filed as required; and
(xiv) The statements in the Prospectus as to
the routes that American operates or is authorized to
operate are correct in all material respects and the
routes presently operated are being operated pursuant
to valid Certificates or Exemption Orders issued by
the Department of Transportation or its predecessor,
the Civil Aeronautics Board, and no such Certificate
or Exemption Order is the subject of any "show cause"
or other order of, or any proceeding before, or any
investigation by, the Department of Transportation
(other than proceedings for the renewal of temporary
rights,) which in the opinion of such counsel might
reasonably result in a final order impairing the
validity of such Certificates or Exemption Orders,
except that such counsel need express no opinion or
belief as to the accuracy or completeness of the
Registration Statements or the Prospectus except for
the opinions expressed in paragraphs (v) and (xiii)
and this paragraph (xiv) and, to the extent stated
therein, the disclosure matters referred to in the
immediately following sentence;
and to such further effect with respect to other legal matters
relating to this Agreement, the Designated Indenture and the
sale of the Offered Securities hereunder as your counsel may
reasonably request. Such counsel shall also state that no
facts have come to the attention of such counsel which have
caused such counsel to believe (A) that the Registration
Statements or any amendment thereto (except for the financial
statements and other financial and statistical data included
or incorporated by reference therein, and except for the
Statement of Eligibility on Form T-1 of the Trustee under the
1939 Act, as to which such counsel need express no belief), on
the original effective date thereof, on the effective date of
any post-effective amendment thereto, if any, or on the date
of the filing by the Company of its most recent Annual Report
on Form 10-K after the filing of the Registration Statements,
contained an untrue statement of a material fact or
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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 the Prospectus together with any
amendment or supplement thereto (except for the financial
statements and other financial and statistical data included
or incorporated by reference therein, as to which such counsel
need express no belief), at the time the Prospectus Supplement
was issued, at the time any such amended or supplemented
Prospectus was issued or at the Closing Time, contained or
contains an untrue statement of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In
giving such opinion, such counsel may state that such opinion
is limited to the laws of the States of New York and Texas,
the corporate laws of the State of Delaware and the Federal
laws of the United States, except that such counsel expresses
no opinion as to the securities laws of any state. In
rendering the opinions set forth above, such counsel may rely
upon certificates of public officials as to matters of fact.
(2) An opinion, dated the Closing Time, from Shearman
& Sterling, your counsel, to the effect that the opinion
delivered pursuant to subsection (b)(1) of this Section 4
appears on its face to be appropriately responsive to the
requirements of this Agreement except, specifying the same, to
the extent waived by you and with respect to the issuance and
sale of the Offered Securities, the Registration Statements,
the Prospectus and such other related matters as you may
reasonably require.
(c) (1) At the Closing Time, there shall not have been, since
the respective dates as of which information is given in Registration
Statement File No. 333-68211 and the Prospectus, any material adverse
change in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, and you shall have received a certificate of the
President, an Executive Vice President, a Senior Vice President or a
Vice President of the Company, dated as of such Closing Time, to the
effect that the representations and warranties of the Company contained
in Section 1 hereof are true and correct with the same force and effect
as though made on such Closing Time.
(2) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Time, neither Standard & Poor's
Corporation nor Xxxxx'x Investors Service, Inc. shall have downgraded
its rating accorded to any of the Company's senior unsecured taxable
debt securities with maturities greater than one year.
(d) You shall have received the letter specified in Schedule
III at the Closing Time.
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(e) The Company shall have furnished to you and your counsel,
in form and substance satisfactory to them, such other documents,
certificates and opinions as such counsel may reasonably request for
the purpose of enabling such counsel to pass upon the matters referred
to in subsection (b)(2) of this Section 4 and in order to evidence the
accuracy and completeness of any of the representations, warranties or
statements, the performance of any covenant by the Company theretofore
to be performed, or the compliance with any of the conditions herein
contained.
(f) If the Offered Securities are specified in Schedule II as
securities to be listed on a securities exchange or exchanges prior to
the Closing Time, the Offered Securities shall have been duly
authorized for listing by the securities exchange or exchanges
specified in said Schedule II, subject only to official notice of
issuance.
All such opinions, certificates, letters and documents shall
be deemed to be in compliance with provisions hereof only if they are in all
respects reasonably satisfactory to you and your counsel.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, other than by reason of any
default by the Underwriters, such failure to fulfill a condition may be waived
by you, or this Agreement may be terminated by you by notice to the Company at
any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in Sections 5, 6
and 8 hereof, which provisions shall remain in effect notwithstanding such
termination.
5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the preparation, printing, filing and distribution of any preliminary
prospectus supplements, the Prospectus, the Registration Statements and any
amendments thereof or supplements thereto, (ii) the preparation, printing, and
distribution of any agreement among underwriters, this Agreement, the Designated
Indenture, the Offered Securities, the Blue Sky Survey, any Legal Investment
Survey and any Underwriters' questionnaire, (iii) the issuance and delivery of
the Offered Securities to the Underwriters, (iv) the fees and disbursements of
the Company's counsel and accountants, (v) the expenses of qualifying the
Offered Securities under state securities laws in accordance with Section 3(f),
including filing fees and fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the Blue Sky Survey and any Legal
Investment Survey, (vi) any fees charged by rating agencies for rating the
Offered Securities, (vii) the fees and expenses of the Trustee, including the
fees and disbursements of counsel for the Trustee, and
(viii) the fees and expenses, if any, incurred in connection with the listing of
the Offered Securities on any securities exchange.
If this Agreement is terminated by you in accordance with the
provisions of Section 4 or 9(i) hereof, the Company shall reimburse the
Underwriters for all of their out-of-pocket
15
14
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters, in connection with the offering contemplated by this Agreement.
6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of the 1933 Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the 1933 Act, the 1934 Act, or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statements as originally filed or in any amendment
thereof, or in any preliminary prospectus or the Prospectus, or in any amendment
thereof, or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and agrees
to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that any such loss,
claim, damage, or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon, and in conformity with, written information furnished
to the Company by or on behalf of any Underwriter specifically for use in
connection with the preparation thereof or made in the part of the Registration
Statements constituting the Statement of Eligibility under the 1939 Act of the
Trustee on Form T-1, (ii) the foregoing indemnity agreement, with respect to any
preliminary prospectus, shall not inure to the benefit of any Underwriter (or
any person controlling such Underwriter) as to whom it shall be established did
not send or deliver to the person asserting any such loss, claim, damage or
liability and who purchased Offered Securities which are the subject thereof a
copy of the Prospectus as amended or supplemented at or prior to the written
confirmation of the sale of such Offered Securities in any case where such
delivery is required by the 1933 Act, and the untrue statement or omission of a
material fact contained in such preliminary prospectus was corrected in the
Prospectus as amended or supplemented, and (iii) the Company will not be liable
for any loss, liability or expense of any settlement of any pending or
threatened litigation or any pending or threatened governmental agency
investigation or proceeding if such settlement is effected without the prior
written consent of the Company. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signed the
Registration Statements, and each person who controls the Company within the
meaning of the 1933 Act, against any and all losses, claims, damages,
liabilities and expenses described in the indemnity contained in Section 6(a),
but only with respect to untrue statements or alleged untrue statements or
omissions or alleged omissions made in such Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with
16
15
written information furnished to the Company by or on behalf of any Underwriter
specifically for use in such Registration Statement (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto). This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party or parties in writing of the
commencement thereof; but the omission so to notify the indemnifying party or
parties will not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 6. In case any such action
is brought against any indemnified party and it notifies the indemnifying party
or parties of the commencement thereof, the indemnifying party or parties will
be entitled to participate therein, and, to the extent that it may elect, by
written notice delivered to such indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel satisfactory to such indemnified party; provided, however, that if,
in the reasonable judgement of such indemnified party, a conflict of interest
exists where it is advisable for such indemnified party to be represented by
separate counsel, the indemnified party shall have the right to employ separate
counsel in any such action, in which event the fees and expenses of such
separate counsel shall be borne by the indemnifying party or parties. Upon
receipt of notice from the indemnifying party or parties to such indemnified
party of the election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party or parties will not be
liable to such indemnified party under this Section 6 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party or parties shall not be liable
for the expenses of more than one such separate counsel representing the
indemnified parties under subparagraph (a) of this Section 6 who are parties to
such action), (ii) the indemnifying party or parties shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party or parties have authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party or parties; and
except that, if clause (i) or (iii) is applicable, such liability shall be only
in respect of the counsel referred to in such clause (i) or (iii). It is
understood that all such fees and expenses of counsel for the indemnified party
for which the indemnifying party is liable shall be reimbursed as they are
incurred. No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), 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 and does not include a statement
as to or an admission of fault, culpability or a failure to act by or on behalf
of any indemnified party.
17
16
(d) If the indemnification provided for in paragraph (a) or
(b) of this Section 6 is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, (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
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) 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 of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, 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 Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total
proceeds from the offering of the Offered Securities pursuant to this Agreement
(net of compensation paid to the Underwriters but before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth on the cover of the
Prospectus, bear to the aggregate initial public offering price of the Offered
Securities as set forth on such cover. The relative fault of the Company on the
one hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or 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 Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 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 which does not
take account of the equitable considerations referred to above in this Section.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any such
action or claim. Notwithstanding the provisions of this Section, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Offered Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any 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 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statements, and each person, if any, who controls
the Company
18
17
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section are several in
proportion to the principal amount of Offered Securities set forth opposite
their respective names in Schedule I hereto and not joint.
7. Default. If any one or more Underwriters shall fail to
purchase and pay for any of the Offered Securities agreed to be purchased by
such Underwriter or Underwriters pursuant to this Agreement and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
aggregate amount of Offered Securities specified to be purchased by them in
Schedule I bears to the aggregate amount of Offered Securities to be purchased
by all the remaining Underwriters) the Offered Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate amount of Offered Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Offered Securities to be purchased
pursuant to this Agreement, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of such
Offered Securities, and if such non-defaulting Underwriters do not purchase all
such Offered Securities, this Agreement will terminate without liability to any
non-defaulting Underwriter or the Company. In the event of any such termination,
the provisions of Sections 5, 6 and 8 shall remain in effect. In the event of a
default by any Underwriter as set forth in this Section 7, the Closing Time
shall be postponed for such period, not exceeding seven days, as the
Underwriters shall determine in order that the required changes in the
Registration Statements and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and to any
non-defaulting Underwriter for damages occasioned by its default hereunder.
8. Representations, Warranties, Indemnities and Agreements to
Survive Delivery. All representations, warranties, indemnities and agreements
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 any investigation made by or on behalf of the Company or
any Underwriter or controlling person and shall survive delivery of any Offered
Securities to the Underwriters.
9. Termination. This Agreement may be terminated immediately
upon notice from you to the Company at any time at or prior to the Closing Time
(i) if there has been, since the respective dates as of which information is
given in the Registration Statements and the Prospectus, any material adverse
change in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any outbreak or escalation of
19
18
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in your reasonable judgment,
impracticable to market the Offered Securities or enforce contracts for the sale
of the Offered Securities, or (iii) if trading in the Common Stock of the
Company has been suspended by the Commission or a national securities exchange,
or if trading generally on the New York Stock Exchange has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by said exchange or by order of the
Commission or any other governmental authority, or if a banking moratorium has
been declared by either Federal or New York authorities. In the event of such
termination, the provisions of Sections 5, 6 and 8 shall remain in effect.
10. Notices. All notices and other communications hereunder
shall be in writing and effective only upon receipt, and, if sent to
Underwriters, will be mailed or transmitted by any standard form of
telecommunications to the Underwriters as set forth in Schedule I or, if sent to
the Company, will be mailed or transmitted by any standard form of
telecommunications to it at X.X. Xxx 000000, Xxxxxx/Xxxx Xxxxx International
Xxxxxxx, Xxxxx 00000-0000, attention of the Treasurer.
11. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons and
officers and directors referred to in Section 6 and their successors, heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties and their respective successors and said
controlling persons and officers and directors and their successors, heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Offered Securities from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
13. Counterparts. This Agreement may be executed in one or
more counterparts and when a counterpart has been executed by each party hereto
all such counterparts taken together shall constitute one and the same
agreement.
20
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and each
Underwriter in accordance with its terms.
Very truly yours,
AMR CORPORATION
By:
--------------------------------
Name:
Title:
21
Confirmed and accepted as of
the date first above written:
XXXXXXX, XXXXX & CO.
as Representative acting on
behalf of the Underwriters
named in Schedule I hereto
By:
------------------------------------
(Xxxxxxx, Sachs & Co.)
XXXXXXX XXXXX XXXXXX INC.
By:
------------------------------------
Name:
Title:
22
SCHEDULE I
to
Underwriting
Agreement
Dated: July 7, 1999
AMR CORPORATION
Principal
amount of
PINES
--------------
Xxxxxxx, Sachs & Co., Joint Book-Running Manager ........... $ 19,625,000
Xxxxxxx Xxxxx Xxxxxx Inc., Joint Book-Running Manager ...... 19,625,000
Xxxxxx Xxxxxxx & Co. Incorporated ......................... 19,500,000
PaineWebber Incorporated ................................... 19,500,000
Prudential Securities Incorporated ......................... 19,500,000
Credit Suisse First Boston Corporation ..................... 5,000,000
Bear, Xxxxxxx & Co. Inc. ................................... 1,750,000
CIBC World Markets Corp. ................................... 1,750,000
Xxxxxxx Xxxxxx & Co., Inc. ................................. 1,750,000
Chase Securities Inc. ...................................... 1,750,000
Xxxx Xxxxxxxx Xxxxxxx
a division of Xxxx Xxxxxxxx Incorporated .............. 1,750,000
Deutsche Bank Securities Inc. .............................. 1,750,000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation ........ 1,750,000
X.X. Xxxxxxx & Sons, Inc. .................................. 1,750,000
EVEREN Securities, Inc. .................................... 1,750,000
National Financial Services Corporation .................... 1,750,000
The Xxxxxxxx-Xxxxxxxx Company, LLC ......................... 1,750,000
23
2
XX Xxxxx Securities Corporation ............................ 1,750,000
Warburg Dillon Read LLC, ................................... 1,750,000
ABN AMRO Incorporated ...................................... 875,000
Advest, Inc. ............................................... 875,000
BB&T Capital Markets ....................................... 875,000
Xxxxxx X. Xxxxx & Co. Incorporated ........................ 875,000
Banc of America Securities LLC ............................. 875,000
X.X. Xxxx & Company ........................................ 875,000
X.X. Xxxxxxxx & Co. ........................................ 875,000
Xxxxxxx, Xxxxxx & Co. ...................................... 875,000
Xxxxxxxxxx & Co. Inc. ...................................... 875,000
Fifth Third Securities, Inc. ............................... 875,000
First Union Capital Markets Corp. .......................... 875,000
Xxxxxx & Company ........................................... 875,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. .......................... 875,000
Xxxxxx Xxxxxxxxxx Xxxxx Inc. ............................... 875,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated ....................... 875,000
McDonald Investments Inc., A KeyCorp Company ............... 875,000
XxXxxx, Xxxxx & Co, Inc. ................................... 875,000
Xxxxxx Xxxxxx & Company, Inc. .............................. 875,000
Olde Discount Corporation .................................. 875,000
Xxxxxxx Xxxxx & Associates, Inc. ........................... 875,000
XXXXX CAPITAL MARKETS
A division of BANC ONE CAPITAL MARKETS, Inc. ........... 875,000
Southwest Securities, Inc. ................................. 875,000
Sutro & Co. Incorporated ................................... 875,000
24
3
TD Securities (USA) Inc. ................................... 875,000
Xxxxxx Xxxxxxx Xxxxxx Gull ................................. 875,000
U.S. Bancorp Xxxxx Xxxxxxx Inc. ............................ 875,000
Wachovia Securities, Inc. .................................. 875,000
Wedbush Xxxxxx Securities .................................. 875,000
------------
$150,000,000
============
25
SCHEDULE II
to
Underwriting
Agreement
Dated: July 7, 1999
AMR CORPORATION
A. General
Closing date, time and location: July 13, 1999, 10:00 AM
at Shearman & Sterling
Underwriting fees, commissions or other compensation: 3.15%
of the aggregate principal amount
Other terms and conditions:
B. Terms of Offered Securities:
Title of Offered Securities: 7.875% Public Income NotES
due 2039 ("PINES")
Principal amount to be issued: $150,000,000
Currency or currency units of Offered Securities:
Interest rate or method of calculating interest: 7.875%
Dates interest payable: January 31, April 30, July 31, and
October 31
Date of maturity: July 13, 2039
Redemption provisions: The PINES will be redeemable at the
option of the Company, in whole or in part, at any
time on or after July 13, 2004, upon not less than
30 nor more than 60 days' notice, at a redemption
price equal to 100% of the principal amount redeemed
plus accrued and unpaid interest to the redemption
date.
Sinking fund requirements: None
26
2
Initial public offering price: 100% of the principal
amount plus accrued interest from July 13, 1999.
Purchase price: 96.85% of the principal amount plus accrued
interest from July 13, 1999.
Listing requirement: The Company intends to list the PINES
on the New York Stock Exchange and expects trading
in the PINES to begin within 30 days after the
original issue date.
Other terms and conditions: If the Underwriters sell more
PINES than the total number set forth in the table
in Schedule I attached hereto, the Underwriters have
an option to buy up to an additional $22,500,000
principal amount of PINES from the Company at the
initial public offering price (plus accrued interest
from July 13, 1999) less the underwriting discount
to cover such sales. The Underwriters may exercise
that option for 30 days from the date hereof. If any
PINES are purchased pursuant to this option, the
Underwriters will severally purchase the PINES in
approximately the same proportion as set forth in
the table in Schedule I attached hereto.
27
SCHEDULE III
to Underwriting Agreement
Dated: ________________
AMR CORPORATION
Matters to be Covered by Letter or Letters of
Independent Auditors
Ernst & Young LLP shall have furnished to you the following
letter, dated the Closing Time, in form and substance satisfactory to you, to
the effect that:
(i) They are independent auditors with respect to the
Company within the meaning of the 1933 Act and the Rules and
Regulations, and the answer to Item 10 of the Registration
Statements insofar as it relates to them is none;
(ii) In their opinion, the audited consolidated
financial statements and schedule incorporated by reference in
the Registration Statements comply as to form in all material
respects with the applicable accounting requirements of the
1933 Act and the 1934 Act and the published rules and
regulations thereunder with respect to registration statements
on Form S-3;
(iii) On the basis of a reading of the unaudited
consolidated financial statements of the Company contained in
the Company's Quarterly Reports on Form 10-Q for the quarter
ended March 31, 1999 incorporated by reference in Registration
Statement File No. 333-68211, a reading of the latest
unaudited consolidated financial statements made available by
the Company, a reading of the minutes of the Board of
Directors of the Company and American and any committees
thereof and the stockholders of the Company and the sole
stockholder of American since the date of the latest audited
consolidated financial statements incorporated by reference in
Registration Statement File No. 333-68211, inquiries of
officials of the Company responsible for financial and
accounting matters and such other inquiries and procedures as
may be specified in such letter, which do not constitute an
audit in accordance with generally accepted auditing standards
and which would not necessarily reveal matters of significance
with respect to the comments set forth in such letter, nothing
came to their attention that caused them to believe that:
(A) the unaudited consolidated financial
statements incorporated by reference in Registration
Statement File No. 333-68211 do not comply as to form
in all material respects with the applicable
accounting requirements of the 1933 Act and the 1934
Act and the rules and regulations thereunder as they
apply to Form 10-Q or are not presented
28
2
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited consolidated
financial statements of the Company incorporated by
reference in the Registration Statements;
(B) as of a specified date not more than six
calendar days prior to the date of delivery of such
letter, there has been any change in the consolidated
capital stock or consolidated long-term debt of the
Company, or any decrease in consolidated net current
assets or consolidated stockholders' equity of the
Company or other items specified by you, in each case
as compared with amounts shown in the latest
consolidated balance sheet of the Company
incorporated by reference in Registration Statement
File No. 333-68211, except in each case for changes
or decreases which the Registration Statements
disclose have occurred or may occur or which are
described in such letter; and
(C) for the period from the date of the
latest consolidated financial statements of the
Company incorporated by reference in Registration
Statement File No. 333-68211 to a specified date not
more than six calendar days prior to the date of
delivery of such letter, there were any decreases in
consolidated total operating revenues, consolidated
operating income or consolidated net earnings or
basic or diluted per common share amounts of
consolidated net earnings of the Company, in each
case as compared with the comparable period of the
preceding year and with any other period of
corresponding length reasonably specified by you,
except in each case for decreases which the
Registration Statements disclose have occurred or may
occur or which are described in such letter; and
(iv) They have performed certain procedures specified
in their letter for the purpose of determining whether certain
financial information with respect to the Company and its
consolidated subsidiaries appearing or incorporated by
reference in the Registration Statements and specified in said
letter agrees with indicated amounts in the applicable
financial statements or accounting records of the Company and
its subsidiaries.
