EXHIBIT 1
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AMERICAN AIRLINES, INC.
Pass Through Certificates, Series 2003-1
UNDERWRITING AGREEMENT
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Dated: As of June 30, 2003
AMERICAN AIRLINES, INC.
Pass Through Certificates, Series 2003-1
UNDERWRITING AGREEMENT
June 30, 2003
To the Underwriters named in Schedule I
Ladies and Gentlemen:
American Airlines, Inc., a Delaware corporation (the
"Company"), proposes that U.S. Bank Trust National Association ("U.S. Bank") (as
successor to State Street Bank and Trust Company of Connecticut, National
Association), acting not in its individual capacity but solely as pass through
trustee (the "Trustee") under the Pass Through Trust Agreement dated as of March
21, 2002 (the "Basic Agreement"), as supplemented for pass through certificates
(the "Offered Certificates") to be purchased hereunder by a Trust Supplement
(the "Offered Trust Supplement"), between the Company and the Trustee (the Basic
Agreement, as supplemented by the Offered Trust Supplement, the Class C Trust
Supplement or the Class D Trust Supplement, as the case may be, being referred
to herein as a "Designated Agreement"), issue and sell to the underwriters named
in Schedule I hereto its Pass Through Certificates in the aggregate amount and
with the interest rate and final expected distribution date set forth on
Schedule A hereto (the "Offered Certificates") on the terms and conditions
stated herein and in Schedule II.
The Offered Certificates will represent interests in American
Airlines, Inc., Pass Through Trust Series 2003-1G (the "Offered Pass Through
Trust") established pursuant to the related Designated Agreement to fund the
purchase of series G equipment notes (together with the series C and series D
equipment notes, the "Equipment Notes") to be issued by the Company in
connection with the financing of seven Aircraft. The Equipment Notes will be
issued under seven separate Indenture and Security Agreements between U.S. Bank,
as Loan Trustee (the "Loan Trustee"), and the Company (each, including any
Supplements thereto, an "Indenture" and, collectively, the "Indentures").
The Company will also cause U.S. Bank, as pass through trustee
under American Airlines, Inc. Pass Through Trust, Series 2003-1C (the "Class C
Trust") and American Airlines, Inc. Pass Through Trust, Series 2003-1D (the
"Class D Trust" and, together with the Class C Trust and the Offered Pass
Through Trust, the "Trusts"), to issue and privately place pass through
certificates (the "Class C and Class D Certificates", and, together with the
Offered Certificates, the "Certificates"). The Class C and Class D Certificates
will be issued pursuant to the Basic Agreement, as supplemented by a Trust
Supplement for the Class C Trust (the "Class C Trust Supplement") and a Trust
Supplement for the Class D Trust (the "Class D Trust Supplement" and, together
with the Class C Trust Supplement and the Offered Trust Supplement, the "Trust
Supplements"). Concurrently with the issuance and sale of the Offered
Certificates pursuant hereto, all the Class C and Class D Certificates will be
privately placed with
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two newly organized Delaware statutory trusts (each an "Initial Holder"), each
established pursuant to a separate trust agreement to be entered into between
the Company and/or an affiliate and Wilmington Trust Company, as Owner Trustee,
as of the Closing Time or prior thereto (the "Statutory Trust Agreements"). All
of the beneficial interest in each such Delaware statutory trust will be
initially owned by the Company and/or an affiliate of the Company.
Certain amounts of interest payable on the Offered
Certificates issued by the Offered Pass Through Trust will be entitled to the
benefits of a liquidity facility. Citibank, N.A. (the "Liquidity Provider") will
enter into a revolving credit agreement with respect to the Offered Pass Through
Trust (the "Liquidity Facility"), to be dated as of the Closing Time for the
benefit of the holders of the Offered Certificates. The Liquidity Provider,
Ambac Assurance Corporation, as provider of the Policy referred to below (in
such capacity, the "Policy Provider"), and the holders of the Offered
Certificates will be entitled to the benefits of an Intercreditor Agreement to
be dated as of the Closing Time (the "Intercreditor Agreement") among the
Trustee, U.S. Bank, as subordination agent and trustee thereunder (the
"Subordination Agent"), the Liquidity Provider and the Policy Provider.
Payments of interest on the Offered Certificates will be
supported by a financial guaranty insurance policy (the "Policy") issued by the
Policy Provider to the extent the Liquidity Facility for such Offered
Certificates and any funds contained in the cash collateral account funded from
the Liquidity Facility are no longer available for that purpose. The Policy will
also support the payment of the final distribution on the Offered Certificates
and will take effect in certain other circumstances described in the
Intercreditor Agreement and the Policy. The Policy will be issued pursuant to an
insurance and indemnity agreement, dated as of the Closing Time (the "Policy
Provider Agreement"), among the Policy Provider, the Company and the
Subordination Agent. Under the Policy Provider Agreement, the Subordination
Agent will reimburse the Policy Provider for amounts paid pursuant to claims
made under the Policy.
As used herein, unless the context otherwise requires, the
term "Underwriters" shall mean firms named as Underwriters in Schedule I, and
the term "you" shall mean Citigroup Global Markets Inc. ("Citigroup").
Capitalized terms not otherwise defined in this Agreement
shall have the meanings specified therefore in the related Designated Agreement
or the Intercreditor Agreement; provided that, as used in this Agreement, the
term "Operative Documents" shall mean the Intercreditor Agreement, the Liquidity
Facility, the Designated Agreements, the Policy, the Policy Provider Agreement,
the Indemnification Agreement dated the date hereof (the "Indemnification
Agreement") among the Company, the Policy Provider and the Underwriters, the
Participation Agreements, the Indentures, and the Statutory Trust Agreements.
The Company has prepared and filed on Form S-3 with the
Securities and Exchange Commission (the "Commission") a registration statement
(File No. 333-84292) (as amended at the date hereof, including the exhibits
thereto and the documents incorporated by reference therein, the "Registration
Statement") relating to certain pass through certificates (including the Offered
Certificates) and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933, as amended (the "Securities Act"). The
Registration Statement includes a basic prospectus referred to below which, as
supplemented from time to
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time, will be used in connection with all offerings of such pass through
certificates. As provided in Section 3(a), a prospectus supplement reflecting
the terms of the Offered Certificates, 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
Securities 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 the Registration Statement and
relating to all offerings of pass through certificates under the Registration
Statement, 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 as
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 "Exchange Act"), that are incorporated by
reference therein. The term "preliminary prospectus" means a preliminary
prospectus supplement specifically relating to the Offered Certificates,
together with the basic prospectus and including the documents filed by the
Company or AMR Corporation with the Commission pursuant to the Exchange Act that
are incorporated by reference therein. Any reference herein to the terms
"amendment" or "supplement" with respect to the Registration Statement, the
Prospectus, or any preliminary prospectus shall be deemed to refer to and
include any documents filed with the Commission under the Exchange 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 Securities Act.
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.
(b) The Registration Statement has been declared
effective by the Commission. On the original effective date of the
Registration Statement, on the effective date of any post-effective
amendment thereto, 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 Statement, such Registration Statement complied in all
material respects with the applicable requirements of the Securities
Act and the rules and regulations of the Commission thereunder (the
"Securities Act Regulations"), and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the applicable rules and
regulations of the Commission thereunder (the "Trust Indenture 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 Statement 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,
comply and will comply in all material respects with the requirements
of the Securities Act, the Securities Act Regulations, the Trust
Indenture Act and the Trust Indenture Act Regulations, and (i) neither
the Registration Statement nor any amendments thereof, as of any such
respective dates,
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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 and
(ii) neither the Prospectus nor any amendments thereof or supplements
thereto, 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 necessary to make the statements therein, in light of the
circumstances under which they were made, 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
Statement or the Prospectus or any amendment thereof or supplement
thereto by or on behalf of any Underwriter through you expressly for
use in the Registration Statement or the Prospectus, or to statements
or omissions in that part of the Registration Statement which
constitutes the Statement of Eligibility under the Trust Indenture Act
(Form T-1) of the Trustee; provided, however, that the Company makes no
representation or warranty as to the Policy Provider Information (as
defined in the Indemnification Agreement).
(c) The consolidated financial statements incorporated by
reference in the Registration Statement and Prospectus present fairly
the consolidated financial position of the Company and its subsidiaries
as of the dates indicated and the consolidated results of their
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 Statement 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 Exchange Act and the rules and regulations
thereunder.
(e) Since the respective dates as of which information is
given in the Registration Statement 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 and has the corporate power and authority under such laws to
own its properties and conduct its business as described in the
Prospectus.
(g) The Company (i) is an "air carrier" within the
meaning of 49 U.S.C. Section 40102(a), (ii) holds an air carrier
operating certificate issued by the Secretary of Transportation
pursuant to Chapter 447 of Title 49 of the United States Code for
aircraft capable of carrying 10 or more individuals or 6,000 pounds or
more of cargo, (iii) is a "citizen of the United States" as defined in
49 U.S.C. Section 40102 and (iv) is duly qualified to do business as a
foreign corporation in good standing in the jurisdictions in
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the United States of America in which the Company has intrastate
routes, a principal office (including the jurisdiction in which its
principal place of business is located) or major overhaul facility. All
of the issued and outstanding capital stock of the Company has been
duly authorized and validly issued, is fully paid and nonassessable and
is owned by AMR Corporation directly, free and clear of any liens,
encumbrances, equities or claims.
(h) The execution and delivery by the Company of this
Agreement, the Equipment Notes and the Operative Documents to which the
Company is, or is to be, a party, the consummation by the Company of
the transactions herein and therein contemplated, and the 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 any of its subsidiaries or any
material indenture, mortgage, or other agreement or instrument to which
the Company or any of its 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 any of its subsidiaries or any of their respective
properties; and no consent, approval, authorization, order or license
of, or filing with or notice to, any government, governmental
instrumentality, regulatory body or authority or court, domestic or
foreign, is required for the valid authorization, issuance and delivery
of the Offered Certificates and the Equipment Notes, the valid
authorization, execution, delivery and performance by the Company of
this Agreement, the Equipment Notes and the Operative Documents to
which the Company is, or is to be, a party, or the consummation by the
Company of the transactions contemplated by this Agreement, the
Equipment Notes and the Operative Documents to which the Company is, or
is to be, a party, except (i) such as are required under the Securities
Act, the Trust Indenture Act and the securities or Blue Sky laws of the
various states, and (ii) filings or recordings with the Federal
Aviation Administration ("FAA") and under the Uniform Commercial Code
as in effect in Delaware, which filings or recordings shall have been
made or duly presented for filing on or prior to the Closing Time.
(i) This Agreement, the Equipment Notes and the Operative
Documents to which the Company is, or is to be, a party, have each been
duly authorized by the Company, and this Agreement and each Operative
Document to which the Company is, or is to be, a party, has been or
will be at or prior to the Closing Time, duly executed and delivered by
the Company. The Equipment Notes will be duly executed and delivered by
the Company at or prior to the Closing Time. The Equipment Notes and
the Operative Documents to which the Company is, or is to be, a party,
when duly executed and delivered by the Company, assuming in the case
of the Operative Documents that such documents constitute the legal,
valid and binding obligation of each other party thereto, constitute or
will constitute valid and binding obligations of the Company. 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
Trust Indenture Act. The Offered Certificates, the Equipment Notes, and
the Operative Documents will conform in all material respects to the
descriptions thereof in the Prospectus.
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(j) Ernst & Young LLP, who reported on the annual
consolidated financial statements of the Company incorporated by
reference in the Registration Statement and the Prospectus, are
independent accountants as required by the Securities Act and the
Securities Act Regulations.
(k) When duly executed, authenticated and delivered by
the Trustee in accordance with the terms of the related Designated
Agreement and sold and paid for as provided (i) in this Agreement (in
the case of the Offered Certificates), and (ii) in the Class C Trust
Supplement, Class D Trust Supplement and the related Statutory Trust
Agreements (in the case of the Class C and Class D Certificates), the
Certificates will be validly issued pursuant to the related Designated
Agreement and will constitute valid and binding obligations of the
related Trustees enforceable against the Trustees 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 of the Offered Certificates will be entitled to the
benefits of the related Designated Agreement.
(l) The Equipment Notes, when duly executed and delivered
by the Company and when duly authenticated by the Loan Trustee in
accordance with the terms of the related Indentures, will be duly
issued under such Indentures and will constitute valid and binding
obligations of the Company; and the holders thereof will be entitled to
the benefits of the related Indentures.
(m) At the Closing Time, each Initial Holder will be duly
formed and be validly existing in good standing as a statutory trust
under the Delaware Statutory Trust Act (the "DBTA") and have the power
and authority under the Statutory Trust Agreements and the DBTA to own
and hold its property. At the Closing Time, the Company or an affiliate
of the Company will directly or indirectly own all of the beneficial
interest in each Initial Holder free and clear of any lien,
encumbrance, security interest or similar claim or interest.
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 cause the Trustee to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Trustee, at a purchase price of 100% of the face amount thereof, the
aggregate face amount of Offered Certificates set forth opposite the name of
such Underwriter in Schedule I.
(b) Payment of the purchase price for, and delivery of,
the Offered Certificates 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 or
upon the order of the Trustee by federal funds wire transfer or other
immediately available funds against delivery to the account of Citigroup at The
Depository Trust Company for the respective accounts of the several Underwriters
of the Offered Certificates. Such Offered Certificates shall be registered in
the name of Cede & Co. or in such other names, and in such authorized
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denominations as you may request in writing at least two full business days
before the Closing Time. Certificates for such Offered Certificates, 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 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 Citigroup 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 other immediately available funds.
3. Agreements. The Company covenants with each
Underwriter as follows:
(a) Immediately following the execution of this
Agreement, the Company will prepare a Prospectus Supplement that
complies with the Securities Act and the Securities Act Regulations and
which sets forth the face amount of the Offered Certificates and their
terms not otherwise specified in the basic prospectus relating to all
offerings of pass through certificates under the Registration
Statement, the name of each Underwriter participating in the offering
and the face amount of the Offered Certificates 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 Certificates are to be purchased by the
Underwriters from the Trustee, 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 Certificates. The Company will promptly transmit copies of the
Prospectus Supplement and the Prospectus to the Commission for filing
pursuant to Rule 424 under the Securities Act and will furnish to the
Underwriters as many copies of the Prospectus Supplement and the
Prospectus as you shall reasonably request.
(b) During the period when a prospectus relating to the
Offered Certificates is required to be delivered under the Securities
Act, the Company will promptly advise you of (i) the effectiveness of
any amendment to the Registration Statement, (ii) the transmittal 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) any request by the Commission for any amendment
of the Registration Statement or any amendment or supplement to the
Prospectus or for any additional information relating thereto or to any
document incorporated by reference therein, (iv) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose, and (v) the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Offered Certificates 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 or
suspension and, if issued, to obtain as soon as possible the withdrawal
thereof.
(c) If, at any time when a prospectus relating to the
Offered Certificates is required to be delivered under the Securities
Act, any event occurs as a result of which
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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 Securities Act
or the Securities 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
omission or an amendment or supplement which will effect such
compliance. Neither your consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of
the conditions set forth in Section 4.
(d) At any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Securities Act or
the Securities Act Regulations, the Company will give you notice of its
intention to file any amendment to the Registration Statement or any
amendment or supplement to the Prospectus, whether pursuant to the
Exchange Act, the Securities 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
Statement as originally filed and of all amendments thereto, whether
filed before or after such Registration Statement originally became
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 Securities 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 take such actions as you may request
to qualify the Offered Certificates 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 Certificates. 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 Certificates is required to be delivered under
the Securities Act and the Securities Act Regulations, will file
promptly all documents required to be filed with the Commission
pursuant to Section 13 or 14 of the Exchange 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 Securities Act.
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(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 Securities Act (other than the Offered Certificates) or any
debt securities which may be sold in a transaction exempt from the
registration requirements of the Securities Act in reliance on Rule
144A under the Securities Act and which are marketed through the use of
a disclosure document containing substantially the same information as
a prospectus for similar debt securities registered under the
Securities Act; except that the Company may offer and sell pass through
certificates representing three mortgage notes secured by the Company's
corporate headquarters having an aggregate principal amount of less
than $110 million in a transaction that is exempt from the registration
requirements of the Securities Act in reliance on Rule 144A under the
Securities Act.
Citigroup agrees that in the aggregate, the Pass Through
Certificates will be widely offered. Each Underwriter and each other member of
the underwriting group that offers or sells Pass Through Certificates agree that
the Pass Through Certificates offered by such Underwriter will be primarily
offered in the United States to United States persons. The term "United States
person" shall have the meaning set forth in section 7701(a)(30) of the Internal
Revenue Code of 1986, as amended.
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 Certificates 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 Statement shall have been issued
under the Securities 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, from
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 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 the 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 the Company have been duly authorized and validly
issued and are fully paid and non-assessable, and the
capital stock of the Company is owned by AMR
Corporation, directly, free and clear of any liens,
encumbrances, equities or claims. The Company is duly
qualified to do business as a
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foreign corporation in good standing in the state in
which its principal place of business is located. The
Company holds an air carrier operating certificate
issued by the Secretary of Transportation pursuant to
Chapter 447 of Title 49 of the United States Code
pursuant to which the Company is authorized to
operate the Aircraft and the Company is a "citizen of
the United States" as defined in 49 U.S.C. Section
40102;
(ii) The Company has the corporate power
and authority under Delaware law to perform its
obligations hereunder and under the Equipment Notes
and the Operative Documents to which the Company is,
or is to be, a party;
(iii) The Certificates, the Equipment
Notes and the Operative Documents 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;
(iv) No authorization, approval,
consent, order or license of or filing with, or the
giving of notice to, any government, governmental
instrumentality, regulatory body or authority or
court is required to be made or obtained by the
Company for the valid authorization, issuance, sale
and delivery of the Certificates or the Equipment
Notes, the valid authorization, execution, delivery
and performance by the Company of this Agreement and
the Operative Documents to which the Company is, or
is to be, a party, or the consummation by the Company
of the transactions contemplated by this Agreement
and the Operative Documents to which the Company is,
or is to be, a party, except those that have
previously been obtained and are in full force and
effect and except (A) such as may be required under
the securities or Blue Sky laws of the various states
and (B) filings or recordings with the Federal
Aviation Administration, as to which such counsel
need express no opinion, and under the Uniform
Commercial Code as in effect in Delaware, which
filings or recordings under the Uniform Commercial
Code with respect to the Aircraft shall have been
made or duly presented for filing on or prior to the
Closing Time;
(v) The Registration Statement has
become effective under the Securities Act, the Basic
Agreement has been duly qualified under the Trust
Indenture Act and, to the best knowledge of such
counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened;
(vi) The Registration Statement, the
Prospectus and each amendment thereof or supplement
thereto (except in each case for the financial
statements and other financial or statistical 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
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requirements of the Securities Act and the Securities
Act Regulations; the Basic Agreement and the
Statement of Eligibility of the Trustee on Form T-1
filed with the Commission as part of the Registration
Statement comply as to form in all material respects
with the requirements of the Trust Indenture Act and
the rules and regulations thereunder; and each
document filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except
in each case for the financial statements and other
financial or statistical data included or
incorporated by reference therein, as to which
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 Exchange Act and the rules and
regulations thereunder;
(vii) This Agreement has been duly
authorized, validly executed and delivered by the
Company;
(viii) Each of the Operative Documents to
which the Company is, or is to be, a party has been
duly authorized, executed and delivered by the
Company and each is a valid and binding obligation of
the Company enforceable against the Company in
accordance with its respective terms, except as may
be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other
similar laws affecting enforcement of creditors'
rights generally and by general principles of equity;
(ix) The execution and delivery by the
Company of this Agreement, the Equipment Notes and
the Operative Documents to which the Company is, or
is to be, a party, 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 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 any of its subsidiaries or any indenture or other
agreement or instrument known to such counsel to
which the Company or any of its subsidiaries is a
party or by which the Company or any of its
subsidiaries is bound or any law, rule, regulation,
judgment, decree or order known to such counsel to be
applicable to the Company or any of its subsidiaries
of any court, regulatory body, administrative agency,
government or governmental body having jurisdiction
over the Company or any of its subsidiaries;
(x) The Loan Trustee under each
Indenture will be entitled to the benefits of Section
1110 of the U.S. Bankruptcy Code with respect to the
airframe and the engines comprising the Aircraft
originally subject to the lien of such Indenture;
12
(xi) The Equipment Notes, when duly
authorized, executed and delivered by the Company and
duly authenticated by the related Loan Trustee, will
constitute valid and binding obligations of the
Company, enforceable against the Company 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 of such Equipment Notes
will be entitled to the benefits of the respective
Indentures;
(xii) Such counsel has no reason to
believe that the statements in the Registration
Statement and the Prospectus with respect to
statutes, 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 except
that such counsel need express no opinion as to the
matters to be addressed in clauses (ii) and (iii) and
(iv) of the opinion referred to in Section 4(b)(2)
hereof and paragraphs 6, 7 and 9 of the form of
opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP set forth in Exhibit
A-1 hereto and paragraphs 1 through 5 of the form of
opinion of Parkowski, Guerke & Swayze, P.A. set forth
in Exhibit A-2 hereto; 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 Statement or the Prospectus that are not
described as required, nor any contracts or documents
of a character required to be described in the
Registration Statement or the Prospectus, or to be
filed as exhibits to the Registration Statement, that
are not so described or filed as required;
(xiii) The routes presently operated by
the Company 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 or
its predecessor (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;
(xiv) Assuming due authorization,
execution and delivery by the Trustee and the
Subordination Agent of the Participation Agreements,
each Participation Agreement constitutes the valid
and binding obligation of each of the Trustee and the
Subordination Agent, 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;
13
(xv) Section 1110 of the U.S. Bankruptcy
Code ("Section 1110") conforms in all material
respects to the description thereof contained in
"Description of the Equipment Notes - Remedies" in
the Prospectus; and
(xvi) The offer, sale and delivery of the
Class C and Class D Certificates, as contemplated by
the Operative Documents, do not require registration
under the Securities Act, and the related Designated
Agreements do not require qualification under the
Trust Indenture Act, it being understood that such
counsel need express no opinion as to any subsequent
resale of Class C and Class D Certificates;
and to such further effect with respect to other legal matters
relating to this Agreement, the Equipment Notes and the
Operative Documents to which the Company is, or is to be, a
party and the sale of the Offered Certificates hereunder as
counsel for the Underwriters 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 Statement or any
amendment thereto, on the original effective date thereof or
on the effective date of any post-effective amendment thereto
(except, in each case, for the financial statements and other
financial or statistical data included or incorporated by
reference therein, and except for the Statement of Eligibility
on Form T-1 of the Trustee under the Basic Agreement, as to
which such counsel need express no belief), contained 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 at the time the Prospectus Supplement was issued or
the Prospectus, together with any amendment or supplement
thereto, at the time any such amended or supplemental
Prospectus was issued or at the Closing Time (except, in each
case, for the financial statements and other financial or
statistical data included or incorporated by reference therein
and the Policy Provider Information, as to which such counsel
need express no belief), contained or contains any untrue
statement of a material fact or omitted or omits 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. 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 General Corporation Law of the
State of Delaware and the Federal laws of the United States,
except that such counsel expresses no opinion with respect to
the antitrust, bankruptcy (except as set forth in paragraphs
(x) or (xv) above), environmental, securities (except as set
forth in paragraphs (iv), (v), (vi) and (xvi) above) or tax
laws of any jurisdiction. In rendering the opinions set forth
above, such counsel may rely upon certificates of officers of
the Company and of public officials as to matters of fact.
14
(2) An opinion, dated the Closing Time, of
Debevoise & ▇▇▇▇▇▇▇▇, as counsel for the Company, in form
reasonably satisfactory to you and your counsel, to the effect
that:
(i) The Certificates have been duly
authorized and validly executed, issued and delivered
by the Trustee pursuant to the related Designated
Agreement and constitute valid and binding
obligations of the Trustee enforceable against the
Trustee 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; the holders of the
Certificates are entitled to the benefits of the
related Designated Agreement;
(ii) The statements in the Registration
Statement and Prospectus under the headings "Certain
Federal Income Tax Consequences" and "Certain ERISA
Considerations", to the extent that they constitute
matters of law or legal conclusions with respect
thereto, have been prepared or reviewed by such
counsel and are correct in all material respects;
(iii) The Pass Through Trusts will not be
classified as associations (or as publicly traded
partnerships) taxable as corporations for federal
income tax purposes;
(iv) The Trusts are not required to be
registered under the Investment Company Act of 1940,
as amended; and
(v) Assuming due authorization,
execution and delivery by the Trustee of the
Designated Agreement relating to the Offered
Certificates and the Intercreditor Agreement and by
the Subordination Agent of the Intercreditor
Agreement and the Liquidity Facility, each such
agreement constitutes the valid and binding
obligation of each respective party, 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.
The opinions of such counsel expressed in the
immediately preceding clauses (i) and (v) shall be limited to
the laws of the State of New York governing the enforceability
of contracts as such and in giving such opinion, such counsel
may rely as to certain matters acceptable to you upon the
opinions referred to in Section 4(b)(1) and Section 4(b)(3)
hereof, in which case the opinion shall state that such
counsel believes that it and the Underwriters are entitled to
so rely. In rendering the opinions set forth above, such
counsel may rely upon certificates of officers of the Company
and of public officials as to matters of fact.
15
(3) An opinion, dated the Closing Time, from (i)
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for U.S. Bank, individually, as
Subordination Agent, Trustee and Loan Trustee, and (ii)
Parkowski, Guerke & Swayze, P.A., each in form and substance
reasonably satisfactory to you and your counsel and
substantially to the effect set forth in Exhibit A-1 and A-2
hereto, respectively.
(4) An opinion, dated the Closing Time, from (i)
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel for the
Liquidity Provider, and (ii) ▇▇▇▇▇ ▇▇▇▇▇▇▇, in-house counsel
for the Liquidity Provider, each in form and substance
satisfactory to you and your counsel, substantially to the
effect as set forth in Exhibits B-1 and B-2 hereto,
respectively.
(5) An opinion, dated the Closing Time, from
▇▇▇▇ ▇. ▇▇▇▇▇, Vice President and Assistant General Counsel
for the Policy Provider, in form and substance satisfactory to
you and your counsel, substantially to the effect set forth in
Exhibit C hereto.
(6) An opinion, dated the Closing Time, from
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, PA, special Delaware counsel to
each Initial Holder, in form and substance reasonably
satisfactory to you and your counsel and substantially to the
effect set forth in Exhibit D hereto for each Initial Holder.
(7) An opinion, dated the Closing Time, from
Shearman & Sterling LLP, counsel for the Underwriters, to the
effect that the opinions delivered pursuant to subsections
(b)(1) through (b)(6) of this Section 4 appear on their 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
Certificates, the Registration Statement, the Prospectus and
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 the
Registration Statement 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 there has been no such material adverse change and 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 at such Closing Time.
(2) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Time, neither ▇▇▇▇▇'▇ Investors
Service, Inc. ("Moody's") nor Standard & Poor's, a division of The
McGraw Hill Companies, Inc. ("S&P") shall have downgraded its rating
accorded to any of the Company's taxable debt securities with
maturities greater than one year.
16
(d) You shall have received the letter specified in
Schedule III at the Closing Time from Ernst&Young LLP.
(e) At the Closing Time, each of the Equipment Notes and
Operative Documents shall have been executed and delivered by each
party thereto; the representations and warranties of the Company
contained in the Operative Agreements shall be accurate as of the
Closing Time 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 the Closing Time, to such
effect.
(f) 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)(7) 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.
(g) Each of the Appraisers shall have furnished to the
Underwriters a letter from such Appraiser, addressed to the Company and
dated the Closing Time, 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.
(h) At the Closing Time, the Offered Certificates shall
be rated "AAA" by S&P; and "Aaa" by Moody's.
(i) At the Closing Time, all conditions precedent
specified in each Participation Agreement with respect to the funding
of the related Equipment Notes shall have been satisfied; the
representations and warranties of the Company, the Trustee, the
Subordination Agent and the Loan Trustee contained in each of the
Participation Agreements shall be accurate as of the Closing Time
(except to the extent that they relate solely to an earlier date in
which case they shall be accurate as of such earlier date) and you
shall have received certificates of the Company and appropriate
officers of the Subordination Agent, Trustee and Loan Trustees, dated
as of the Closing Time, to such effect; and you shall have received a
copy of each opinion required to be delivered under each of the
Participation Agreements dated as of the Closing Time, and addressed to
you, and of such other documents furnished in connection with the
fulfillment of such conditions as you may reasonably request.
(j) At the Closing Time, simultaneously with the issuance
and sale of the Offered Certificates in accordance with this Agreement,
the Class C and Class D Certificates shall have been issued, sold and
delivered, as contemplated by the Operative Documents.
17
All such opinions, certificates, letters and documents shall
be deemed to be in compliance with the provisions hereof only if they are in all
respects 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 any Underwriter, 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 or cause to
be paid all expenses incident to the performance of the obligations of the
Company under this Agreement, including (i) expenses relating to the
preparation, printing, filing and distribution of any preliminary prospectus
supplements, the Prospectus, the Registration Statement and any amendments
thereof or supplements thereto, (ii) expenses relating to the preparation,
printing and distribution of any agreement among underwriters, this Agreement,
the Certificates, the Equipment Notes, the Operative Documents, any
Underwriter's Questionnaire, the Blue Sky Survey and any Legal Investment Survey
by the Underwriter's counsel, (iii) expenses relating to the issuance and
delivery of the Offered Certificates to the Underwriters, (iv) the fees and
disbursements of the Company's counsel and accountants, (v) expenses of
qualifying the Offered Certificates 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) the fees and expenses of the
Trustee, the Subordination Agent, the Loan Trustees, the Liquidity Provider, the
Policy Provider and the fees and disbursements of their respective counsel,
(vii) any fees charged by rating agencies for rating the Offered Certificates,
(viii) certain fees and expenses of counsel for the Underwriters as heretofore
agreed, and (ix) the fees and expenses, if any, incurred in connection with the
listing of the Offered Certificates on any securities exchange. The Company will
also cause to be paid all expenses incident to the performance of its
obligations under the Operative Documents and each of the other agreements and
instruments referred to therein.
If this Agreement is terminated by you in accordance with the
provisions of Section 4 or Section 9(i) hereof, the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters, incurred by them in
connection with the offering contemplated by this Agreement.
6. Indemnification and Contribution (a) The Company
agrees to indemnify and hold harmless each Underwriter and each person who
controls any Underwriter within the meaning of the Securities 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 Securities Act, the Exchange 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) (1) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or arise out of or are based upon
the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(2) arise out of or based
18
upon any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus relating to the Offered Certificates or
in the Prospectus or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and, in each case,
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 (x) made
therein in reliance upon, and in conformity with, written information relating
to any Underwriter furnished to the Company by or on behalf of such Underwriter
through you specifically for use in connection with the preparation thereof or
made in the part of the Registration Statement constituting the Statement of
Eligibility under the Trust Indenture Act of the Trustee on Form T-1 or (y) in
the Policy Provider Information, (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 Certificates which are the
subject thereof a copy of the Prospectus as amended or supplemented (exclusive
of material incorporated by reference) at or prior to the written confirmation
of the sale of such Offered Certificates in any case where such delivery is
required by the Securities 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 the Company had previously furnished
copies thereof to such Underwriter, 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 Statement, and each person who controls the Company
within the meaning of the Securities 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 the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information relating to
such Underwriter furnished to the Company by or on behalf of such Underwriter
through you specifically for use in the 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
19
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 judgment 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 failure to act by or on behalf of
any indemnified party.
(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 Certificates 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
20
connection with the offering of the Offered Certificates pursuant to this
Agreement shall be deemed to be in the same proportion as the total proceeds
from the offering of the Offered Certificates 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, bears to
the aggregate initial public offering price of the Offered Certificates 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 Certificates 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
Securities Act) 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 Securities Act or Section 20 of the Exchange 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 Statement, and each person,
if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange 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 Certificates set forth opposite their respective names in
Schedule I hereto and not joint.
7. Default. If any one or more Underwriters shall fail
at the Closing Time to purchase and pay for any of the Offered Certificates
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 face amount of Offered Certificates
specified to be purchased by them in Schedule I bears to the aggregate face
amount of Offered Certificates to be purchased by all the remaining
Underwriters) the Offered Certificates which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate face amount of Offered Certificates that the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate face amount of Offered Certificates to be purchased pursuant to
this Agreement, the remaining Underwriters shall have the right, but not the
21
obligation within 24 hours thereafter, to make arrangements to purchase all, but
not less than all, of such Offered Certificates, and if such nondefaulting
Underwriters do not complete such arrangements within such 24 hour period, then
this Agreement will terminate without liability to any nondefaulting
Underwriters 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 that does not result
in a termination of this Agreement, the Closing Time shall be postponed for such
period, not exceeding seven days, as the nondefaulting Underwriters or the
Company shall determine in order that the required changes in the Registration
Statement 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 nondefaulting
Underwriters 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 any controlling person of either and shall survive
delivery of any Offered Certificates 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 Statement 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 hostilities or any
material change in the financial markets or any other calamity or crisis the
effect of any of which on the financial markets is such as to make it, in your
judgment, impracticable to market the Offered Certificates or enforce contracts
for the sale of the Offered Certificates, or (iii) if trading in the securities
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 (iv) if a
banking moratorium has been declared by either Federal or New York authorities.
In the event of any 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
the Underwriters, will be mailed or transmitted by any standard form of
telecommunication 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
telecommunication to it at ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, 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
22
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
Certificates 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.
[Remainder of page intentionally left blank.]
23
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,
AMERICAN AIRLINES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
Corporate Finance & Banking
confirmed and accepted as of
the date first above written:
CITIGROUP GLOBAL MARKETS INC.
On its behalf and on behalf of each of the
several Underwriters named in Schedule I hereto.
By: CITIGROUP GLOBAL MARKETS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
SCHEDULE A
to
Underwriting
Agreement
Class of Aggregate Final Expected
Pass Through Face Regular Distribution
Certificates Amount Interest Rate Date
--------------- ------------ ------------- --------------------
2003-1, Class G $254,863,000 3.857% July 9, 2010
SCHEDULE I
to
Underwriting
Agreement
Dated: As of June 30, 2003
AMERICAN AIRLINES, INC.
FACE
AMOUNT OF
CLASS G
CERTIFICATES
------------
Citigroup Global Markets Inc. $ 63,718,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. 63,715,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 63,715,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 63,715,000
--------------
Total $ 254,863,000
All notices to the Underwriters shall be sent as follows:
c/o Mr. ▇▇▇▇ ▇▇▇▇▇▇
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
SCHEDULE II
to
Underwriting
Agreement
Dated: As of June 30, 2003
AMERICAN AIRLINES, INC.
Underwriting fees, discounts, commissions or other compensation: $1,784,041.00
Closing date, time and location: 10:00 A.M. on July 8, 2003 at the offices of Debevoise
& ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
2
SCHEDULE III
to
Underwriting
Agreement
[Letter From Ernst & Young LLP]