EXHIBIT 4.29
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PARTICIPATION AGREEMENT
Dated as of October 4, 2001
among
AMERICAN AIRLINES, INC.,
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Pass Through Trustee under each of the
Pass Through Trust Agreements
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Subordination Agent
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Loan Trustee
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
in its individual capacity as set forth herein
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Aircraft of the make and model and
bearing the U.S. Registration Number and
Manufacturer's Serial Number listed on
Schedule I hereto
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions................................................. 2
Section 1.02. Other Definitional Provisions............................... 2
ARTICLE II
THE LOANS
Section 2.01. The Loans................................................... 2
Section 2.02. Issuance of Equipment Notes................................. 3
Section 2.03. The Closing................................................. 3
ARTICLE III
CONDITIONS PRECEDENT
Section 3.01. Conditions Precedent to Obligations of the Pass Through
Trustees.................................................. 3
Section 3.02. Conditions Precedent to Obligations of the Company.......... 7
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND INDEMNITIES OF THE COMPANY
Section 4.01. Representations and Warranties of the Company............... 8
Section 4.02. General Indemnity........................................... 10
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS OF STATE STREET
Section 5.01. Representations, Warranties and Covenants of State Street... 15
ARTICLE VI
OTHER COVENANTS AND AGREEMENTS
Section 6.01. Other Agreements............................................ 18
Section 6.02. Certain Covenants of the Company............................ 19
ARTICLE VII
MISCELLANEOUS
Section 7.01. Notices..................................................... 21
Section 7.02. Survival of Representations, Warranties, Indemnities,
Covenants and Agreements.................................... 22
Section 7.03. Governing Law............................................... 22
Section 7.04. Severability................................................ 22
Section 7.05. No Oral Modifications or Continuing Waivers; Consents....... 22
Section 7.06. Effect of Headings and Table of Contents.................... 23
Section 7.07. Successors and Assigns...................................... 23
Section 7.08. Benefits of Agreement....................................... 23
Section 7.09. Counterparts................................................ 23
Section 7.10. Submission to Jurisdiction.................................. 23
Section 7.11. ERISA....................................................... 24
Schedule I - Certain Terms
Schedule II - Equipment Notes, Purchasers and Original Principal Amounts
Schedule III - Trust Supplements
Exhibit A - Form of Opinion of Counsel for the Company
Exhibit B - Form of Opinion of Special Counsel for the Loan Trustee, the
Subordination Agent and State Street
Exhibit C - Form of Opinion of Special FAA Counsel
Exhibit D - Form of Opinion of Counsel for the Liquidity Provider
Exhibit E - Form of Manufacturer's Consent
Exhibit F - Form of Opinion of Special Counsel for the Pass Through Trustee
Annex A - Definitions
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PARTICIPATION AGREEMENT
This PARTICIPATION AGREEMENT, dated as of October 4, 2001, is made
by and among AMERICAN AIRLINES, INC., a Delaware corporation (together with its
successors and permitted assigns, the "Company"), STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking association (in
its individual capacity, together with its successors and permitted assigns,
"State Street"), not in its individual capacity except as otherwise expressly
provided in any of the Operative Documents or the Pass Through Documents, but
solely as trustee (in such capacity together with any successor or other trustee
in such capacity, the "Pass Through Trustee") under each of the Pass Through
Trust Agreements (such term and other capitalized terms used herein without
definition being defined as provided in Section 1.01), STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking
association, as subordination agent and trustee (in such capacity, together with
any successor trustee in such capacity, the "Subordination Agent") under the
Intercreditor Agreement, and STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, as loan trustee (in such capacity, together with any
successor trustee in such capacity, the "Loan Trustee") under the Indenture.
W I T N E S S E T H:
WHEREAS, the Company is the owner of that certain aircraft of the
make and model set forth in Schedule I hereto as more particularly described in
the Indenture Supplement originally executed and delivered under the Indenture;
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company and the Loan Trustee are entering into the Indenture,
pursuant to which, among other things, the Company will issue separate series of
Equipment Notes, which Equipment Notes are to be secured by a security interest
in all right, title and interest of the Company in and to the Aircraft and
certain other property described in the Indenture;
WHEREAS, pursuant to the Basic Pass Through Trust Agreement and each
of the Trust Supplements set forth in Schedule III hereto, concurrently with the
execution and delivery of this Agreement, separate Pass Through Trusts are being
created to facilitate certain of the transactions contemplated hereby,
including, without limitation, the issuance and sale of Pass Through
Certificates;
WHEREAS, pursuant to the Intercreditor Agreement, the Subordination
Agent will hold the Equipment Notes on behalf of the Pass Through Trusts;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements herein contained, and of other good and valuable consideration
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For the purposes of this Agreement,
unless the context otherwise requires, capitalized terms used but not defined
herein shall have the respective meanings set forth or incorporated by reference
in Annex A.
Section 1.02. Other Definitional Provisions.
(a) The definitions stated herein and in Annex A apply equally to
both the singular and the plural forms of the terms defined.
(b) All references in this Agreement to designated "Articles",
"Sections", "Subsections", "Schedules", "Exhibits", "Annexes" and other
subdivisions are to the designated Article, Section, Subsection, Schedule,
Exhibit, Annex or other subdivision of this Agreement, unless otherwise
specifically stated.
(c) The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Subsection, Schedule, Exhibit, Annex or other subdivision.
(d) All references in this Agreement to a "government" are to such
government and any instrumentality or agency thereof.
(e) Unless the context otherwise requires, whenever the words
"including", "include" or "includes" are used herein, they shall be deemed to be
followed by the phrase "without limitation".
ARTICLE II
THE LOANS
Section 2.01. The Loans. Subject to the terms and conditions of this
Agreement and the Indenture, on the Closing Date the Pass Through Trustee for
each Pass Through Trust shall make a loan to the Company by paying to the
Company the aggregate original principal amounts of the Equipment Notes being
issued to such Pass Through Trust as set forth on Schedule II opposite the name
of such Pass Through Trust. The Pass Through Trustees, on behalf of the Pass
Through Trusts, shall make such loans
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to the Company no later than 10:00 a.m. (New York City time) on the Closing Date
by transferring such amount in immediately available funds to the Company at its
account at The Chase Manhattan Bank (ABA No. ▇▇▇▇▇▇▇▇▇), Account Number
▇▇▇-▇-▇▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇.
Section 2.02. Issuance of Equipment Notes. Upon the occurrence of
the above payments by the Pass Through Trustee for each Pass Through Trust to
the Company, the Company shall issue, pursuant to and in accordance with Article
II of the Indenture, to the Subordination Agent as agent and trustee for the
Pass Through Trustee for each Pass Through Trust, one or more Equipment Notes of
the maturity and aggregate principal amount and bearing the interest rate set
forth in Schedule II opposite the name of such Pass Through Trust. Each such
Equipment Note shall be duly authenticated by the Loan Trustee pursuant to the
Indenture, registered in the name of the Subordination Agent and dated the
Closing Date and shall be delivered by the Loan Trustee to the Subordination
Agent.
Section 2.03. The Closing. The closing (the "Closing") of the
transactions contemplated hereby shall take place at the offices of Debevoise &
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at 9:30 a.m. (New York City time)
on October 4, 2001, or at such other time or place as the parties shall agree.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.01. Conditions Precedent to Obligations of the Pass
Through Trustees. The obligation of each Pass Through Trustee to make the loan
contemplated by Article II is subject to the fulfillment (or the waiver by such
Pass Through Trustee) prior to or on the Closing Date of the following
conditions precedent:
(a) The Company shall have tendered the Equipment Notes to the Loan
Trustee for authentication, and the Loan Trustee shall have authenticated
such Equipment Notes and shall have tendered the Equipment Notes to the
Subordination Agent on behalf of the applicable Pass Through Trustee in
accordance with Section 2.02.
(b) No change shall have occurred after the date of this Agreement
in applicable law or regulations thereunder or interpretations thereof by
appropriate regulatory authorities or any court that would make it a
violation of law or governmental regulations for the Pass Through Trustees
to make the loans contemplated by Section 2.01 or to acquire the Equipment
Notes.
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(c) This Agreement and the following documents shall have been duly
authorized, executed and delivered by the respective party or parties
thereto (other than the Pass Through Trustees or the Loan Trustee), shall
be in full force and effect and executed counterparts (or copies thereof
where indicated) thereof shall have been delivered to each Pass Through
Trustee:
(i) the Intercreditor Agreement;
(ii) the Liquidity Facilities;
(iii) the Pass Through Trust Agreements;
(iv) the Indenture and the Indenture Supplement covering the
Aircraft and dated the Closing Date;
(v) the Manufacturer's Consent;
(vi) a copy of the FAA ▇▇▇▇ of Sale; and
(vii) a copy of the Warranty ▇▇▇▇ of Sale.
(d) A Uniform Commercial Code financing statement or statements
covering the security interest created by the Indenture naming the
Company, as debtor, and the Loan Trustee, as secured party, shall have
been duly filed in all places necessary or desirable within the State of
Delaware.
(e) Each Pass Through Trustee shall have received the following:
(i) a certificate dated the Closing Date of the Secretary or
an Assistant Secretary of the Company, certifying as to (A) a copy
of the resolutions of the Board of Directors of the Company or the
executive committee thereof duly authorizing the transactions
contemplated hereby and the execution, delivery and performance by
the Company of this Agreement and the Indenture and each other
document required to be executed and delivered by the Company in
accordance with the provisions hereof or thereof and (B) a copy of
the certificate of incorporation and by-laws of the Company, as in
effect on the Closing Date;
(ii) a certificate or other evidence from the Secretary of
State of the State of Delaware, dated as of a date reasonably near
the Closing Date, as to the due incorporation and good standing of
the Company in such state;
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(iii) an incumbency certificate of the Company as to the
person or persons authorized to execute and deliver this Agreement,
the Indenture and each other document to be executed by the Company
in connection with the transactions contemplated hereby and thereby,
and the specimen signatures of such person or persons; and
(iv) one or more certificates of the Loan Trustee and the
Subordination Agent certifying to the reasonable satisfaction of the
Pass Through Trustees as to the due authorization, execution,
delivery and performance by the Loan Trustee and the Subordination
Agent of each of the Operative Documents to which the Loan Trustee
or the Subordination Agent is or will be a party and any other
documents to be executed by or on behalf of the Loan Trustee or
Subordination Agent in connection with the transactions contemplated
hereby or thereby.
(f) On the Closing Date, the following statements shall be correct:
(i) the representations and warranties herein of the Company are correct
in all material respects as though made on and as of such date, except to
the extent that such representations and warranties relate solely to an
earlier date (in which case such representations and warranties are
correct on and as of such earlier date) and (ii) no event has occurred and
is continuing that constitutes an Event of Default or an Event of Loss or
would constitute an Event of Default or Event of Loss but for the
requirement that notices be given or time elapse or both.
(g) Each Pass Through Trustee and the Loan Trustee shall have
received an opinion addressed to it from ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Senior
Vice President and General Counsel of the Company (or such other internal
counsel to the Company as shall be reasonably satisfactory to the Pass
Through Trustees) substantially in the form set forth in Exhibit A.
(h) Each Pass Through Trustee and the Loan Trustee shall have
received an opinion addressed to it from ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel
for State Street, the Loan Trustee and the Subordination Agent,
substantially in the form set forth in Exhibit B.
(i) Each Pass Through Trustee and the Loan Trustee shall have
received an opinion addressed to it from ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special
FAA counsel in Oklahoma City, Oklahoma, substantially in the form set
forth in Exhibit C.
(j) Each Pass Through Trustee and the Loan Trustee shall have
received a certificate or certificates signed by the chief financial or
accounting officer, any Senior Vice President, the Treasurer, any Vice
President or any Assistant Treasurer (or any other Responsible Officer) of
the Company, dated the Closing
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Date, certifying as to the correctness of each of the matters stated in
Section 3.01(f).
(k) Each Pass Through Trustee shall have received a certificate from
State Street in its individual capacity and as Loan Trustee and
Subordination Agent, as applicable, dated the Closing Date, signed by an
authorized officer of State Street in its individual capacity and as Loan
Trustee and Subordination Agent, as applicable, certifying for each such
entity that no Loan Trustee Liens or Other Party Liens attributable to it,
as applicable, exist, and further certifying as to the correctness of each
of the matters stated in Section 5.01.
(l) [intentionally left blank]
(m) Each Pass Through Trustee shall have received opinions addressed
to it from Shearman & Sterling, counsel for the Liquidity Provider, and
the Central Legal Department of the Liquidity Provider substantially in
the form set forth in Exhibit D-1 and D-2, respectively.
(n) The Loan Trustee shall have received an insurance report of an
independent insurance broker and the related certificates of insurance,
each in form and substance reasonably satisfactory to the Loan Trustee, as
to the compliance with the terms of Section 7.06 of the Indenture relating
to insurance with respect to the Aircraft.
(o) No action or proceeding shall have been instituted nor shall
governmental action be threatened before any court or governmental agency,
nor shall any order, judgment or decree have been issued or proposed to be
issued by any court or governmental agency at the time of the Closing to
set aside, restrain, enjoin or prevent the completion and consummation of
this Agreement or the transactions contemplated hereby.
(p) The Company shall have entered into the Placement Agreement, the
Class ▇-▇, ▇-▇ and B Pass Through Certificates shall have been issued and
sold pursuant to the Placement Agreement, the Placement Agents shall have
transferred to the Pass Through Trustees in immediately available funds an
amount at least equal to the aggregate purchase price of the Series ▇-▇,
▇-▇ and B Equipment Notes to be purchased from the Company, and the
purchasers of the Class C and Class D Pass Through Certificates shall have
transferred to the Class C and Class D Pass Through Trustees in
immediately available funds an amount at least equal to the aggregate
purchase price of the Series C and Series D Equipment Notes to be
purchased from the Company.
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(q) The Loan Trustee shall have received an executed copy of the
Manufacturer's Consent substantially in the form set forth in Exhibit E.
Promptly upon the recording of the Indenture (with the Indenture
Supplement attached) pursuant to the Transportation Code, the Company will cause
▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special FAA counsel in Oklahoma City, Oklahoma to deliver
to the Subordination Agent on behalf of the Pass Through Trustees, to the Loan
Trustee and to the Company an opinion as to the due recording of such instrument
and the lack of filing of any intervening documents with respect to the
Aircraft.
Section 3.02. Conditions Precedent to Obligations of the Company.
The obligation of the Company to issue and sell the Equipment Notes is subject
to the fulfillment (or waiver by the Company) prior to or on the Closing Date of
the following conditions precedent:
(a) No change shall have occurred after the date of this Agreement
in applicable law or regulations thereunder or interpretations thereof by
appropriate regulatory authorities or any court that would make it a
violation of law or governmental regulations for the Company to enter into
any transaction contemplated by the Operative Documents or the Pass
Through Trust Agreements.
(b) The documents referred to in Section 3.01(c) shall have been
duly authorized, executed and delivered by the respective party or parties
thereto (other than the Company), shall be in full force and effect and
executed counterparts (or copies thereof where indicated) thereof shall
have been delivered to the Company, and the Company shall have received
such documents and evidence with respect to State Street, the Liquidity
Provider, the Loan Trustee, the Subordination Agent and each Pass Through
Trustee as the Company may reasonably request in order to establish the
consummation of the transactions contemplated by this Agreement, the
taking of all corporate and other proceedings in connection therewith and
compliance with the conditions herein set forth.
(c) The Indenture (with the Indenture Supplement covering the
Aircraft attached) shall have been duly filed for recordation (or shall be
in the process of being so duly filed for recordation) with the FAA
pursuant to the Transportation Code.
(d) On the Closing Date, the representations and warranties herein
of State Street, the Loan Trustee, the Subordination Agent and the Pass
Through Trustees shall be correct as though made on and as of such date,
except to the extent that such representations and warranties relate
solely to an earlier date (in which case such representations and
warranties shall have been correct on and as
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of such earlier date), and, insofar as such representations and warranties
concern State Street, the Loan Trustee, the Subordination Agent or any
Pass Through Trustee, such party shall have so certified to the Company.
(e) The Company shall have received each opinion referred to in
Subsections 3.01(h), 3.01(i) and 3.01(m), each such opinion (other than
3.01(m)) addressed to the Company or accompanied by a letter from the
counsel rendering such opinion authorizing the Company to rely on such
opinion as if it were addressed to the Company, and the certificates
referred to in Subsections 3.01(e)(iv) and 3.01(k).
(f) The Company shall have received an opinion addressed to it from
▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel for the Pass Through Trustees,
substantially in the form set forth in Exhibit F.
(g) No action or proceeding shall have been instituted nor shall
governmental action be threatened before any court or governmental agency,
nor shall any order, judgment or decree have been issued or proposed to be
issued by any court or governmental agency at the time of the Closing to
set aside, restrain, enjoin or prevent the completion and consummation of
this Agreement or the transactions contemplated hereby.
(h) The Company shall have received a certificate from State Street
dated the Closing Date, signed by an authorized officer of State Street,
certifying for each Pass Through Trustee that no Other Party Liens
attributable to it exist and further certifying as to the correctness of
each of the matters stated in Section 5.01.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND INDEMNITIES
OF THE COMPANY
Section 4.01. Representations and Warranties of the Company. The
Company represents and warrants that:
(a) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware, is a
Certificated Air Carrier, is a Citizen of the United States, has the
corporate power and authority to own or hold under lease its properties
and to enter into and perform its obligations under the Operative
Documents to which it is a party and is duly qualified to do business as a
foreign corporation in good standing in each state in which it has
intrastate routes or has a principal office or a major overhaul facility
(other than
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states where the failure to so qualify would not have a material adverse
effect on the consolidated financial condition of the Company and its
subsidiaries, considered as a whole).
(b) The execution, delivery and performance by the Company of this
Agreement and the other Operative Documents to which the Company is a
party have been duly authorized by all necessary corporate action on the
part of the Company, do not require any stockholder approval or approval
or consent of any trustee or holder of any indebtedness or obligations of
the Company, except such as have been duly obtained and are in full force
and effect, and do not contravene any law, governmental rule, regulation,
judgment or order binding on the Company or the certificate of
incorporation or by-laws of the Company or contravene or result in a
breach of, or constitute a default under, or result in the creation of any
Lien (other than as permitted under the Indenture) upon the property of
the Company under, any material indenture, mortgage, contract or other
agreement to which the Company is a party or by which it or any of its
properties may be bound or affected.
(c) Neither the execution and delivery by the Company of this
Agreement and the other Operative Documents to which it is a party, nor
the consummation by the Company of any of the transactions contemplated
hereby or thereby, requires the authorization, consent or approval of, the
giving of notice to, the filing or registration with or the taking of any
other action in respect of, the Department of Transportation, the FAA or
any other federal or state governmental authority or agency, except for
(i) the registration of the issuance and sale of the Pass Through
Certificates under the Securities Act of 1933, as amended, and under the
securities laws of any state in which the Pass Through Certificates may be
offered for sale if the laws of such state require such action, (ii) the
qualification of the Pass Through Trust Agreements under the Trust
Indenture Act of 1939, as amended, (iii) the filings referred to in
Section 4.01(e) and (iv) consents, approvals, notices, registrations and
other actions required to be obtained, given, made or taken only after the
date hereof.
(d) This Agreement and each other Operative Document to which the
Company is a party have been duly executed and delivered by the Company
and constitute the legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, except as
the same may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the rights of creditors
generally and by general principles of equity and except, in the case of
the Indenture, as limited by applicable laws that may affect the remedies
provided in the Indenture, which laws, however, do not make the remedies
provided in the Indenture inadequate for the practical realization of the
rights and benefits intended to be provided thereby.
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(e) Except for (i) the filing for recordation pursuant to the
Transportation Code of the Indenture (with the Indenture Supplement
covering the Aircraft attached) and (ii) with respect to the security
interests created by such documents, the filing of financing statements
(and continuation statements at periodic intervals) under the Uniform
Commercial Code of Delaware, no further filing or recording of any
document is necessary or advisable under the laws of the United States or
any state thereof as of the Closing Date in order to establish and perfect
the security interest in the Aircraft created under the Indenture in favor
of the Loan Trustee as against the Company and any third parties in any
applicable jurisdiction in the United States.
(f) The Company is not an investment company or a company controlled
by an investment company within the meaning of the Investment Company Act
of 1940, as amended.
(g) As of the Closing Date, (i) the Company has good title to the
Aircraft, free and clear of Liens other than Permitted Liens, (ii) the
Aircraft has been duly certified by the FAA as to type and airworthiness
in accordance with the terms of the Indenture, (iii) the Indenture (with
the Indenture Supplement covering the Aircraft attached) has been duly
filed for recordation (or shall be in the process of being so duly filed
for recordation) with the FAA pursuant to the Transportation Code and (iv)
the Aircraft is duly registered with the FAA in the name of the Company.
Section 4.02. General Indemnity.
(a) Claims Defined. For the purposes of this Section 4.02, "Claims"
shall mean any and all liabilities, obligations, losses, damages, penalties,
claims, actions, suits, costs or expenses of whatsoever kind and nature (whether
or not on the basis of negligence, strict or absolute liability or liability in
tort) that may be imposed on, incurred by, suffered by or asserted against an
Indemnitee, as defined herein, and, except as otherwise expressly provided in
this Section 4.02, shall include all reasonable out-of-pocket costs,
disbursements and expenses (including reasonable out-of-pocket legal fees and
expenses) of an Indemnitee in connection therewith or related thereto.
(b) Indemnitee Defined. For the purposes of this Section 4.02,
"Indemnitee" means (i) State Street and the Loan Trustee, (ii) so long as it
holds any Equipment Notes as agent and trustee of any Pass Through Trustee, the
Subordination Agent, (iii) so long as it is the holder of any Equipment Notes,
each Pass Through Trustee, (iv) the Liquidity Provider and (v) each of their
respective successors and permitted assigns in such capacities, agents,
servants, officers, employees and directors (the respective agents, servants,
officers, employees and directors of each of the foregoing Indemnitees, as
applicable, together with such Indemnitee, being referred to
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herein collectively as the "Related Indemnitee Group" of such Indemnitee);
provided that such Persons shall, to the extent they are not signatories to this
Agreement, have expressly agreed in writing to be bound by the terms of this
Section 4.02 prior to, or concurrently with, the making of a Claim hereunder. If
an Indemnitee fails to comply with any duty or obligation under this Section
4.02 with respect to any Claim, such Indemnitee shall not, to the extent such
failure was prejudicial to the Company, be entitled to any indemnity with
respect to such Claim under this Section 4.02. No holder of a Pass Through
Certificate in its capacity as such holder shall be an Indemnitee for purposes
hereof.
(c) Claims Indemnified. Subject to the exclusions stated in
Subsection 4.02(d), the Company agrees to indemnify, protect, defend and hold
harmless on an after-Tax basis each Indemnitee against Claims resulting from or
arising out of the sale, purchase, acceptance, non-acceptance or rejection of
the Aircraft under the Purchase Agreement or the ownership, possession, use,
non-use, substitution, airworthiness, control, maintenance, repair, operation,
registration, re-registration, condition, sale, lease, sublease, storage,
modification, alteration, return, transfer or other disposition of the Aircraft,
the Airframe, any Engine or any Part (including, without limitation, latent or
other defects, whether or not discoverable, and any claim for patent, trademark
or copyright infringement) by the Company, any Permitted Lessee or any other
Person. Without limiting the foregoing and subject to, and without duplication
of, the provisions of Section 6.01(a), the Company agrees to pay the reasonable
ongoing fees, and the reasonable out-of-pocket costs and expenses (including,
without limitation, reasonable attorney's fees and disbursements and, to the
extent payable as provided in the Indenture, reasonable compensation and
expenses of the Loan Trustee's agents), of the Loan Trustee in connection with
the transactions contemplated hereby.
(d) Claims Excluded. The following are excluded from the Company's
agreement to indemnify an Indemnitee under this Section 4.02:
(i) any Claim to the extent such Claim is attributable to acts or
events occurring after (x) the Equipment Notes shall have been paid in
full or (y) the transfer of possession of the Aircraft pursuant to Article
IV of the Indenture unless such Claim is attributable to acts occurring in
connection with the exercise of remedies pursuant to Section 4.02 of the
Indenture following the occurrence and continuance of an Event of Default;
(ii) any Claim to the extent such Claim is, or is attributable to, a
Tax;
(iii) any Claim to the extent such Claim is attributable to the
negligence or willful misconduct of such Indemnitee or such Indemnitee's
Related Indemnitee Group;
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(iv) any Claim to the extent such Claim is attributable to the
noncompliance by such Indemnitee or such Indemnitee's Related Indemnitee
Group with any of the terms of, or any misrepresentation by an Indemnitee
or its Related Indemnitee Group contained in, this Agreement, any other
Operative Document or any Pass Through Document to which such Indemnitee
or any of such Related Indemnitee Group is a party or any agreement
relating hereto or thereto;
(v) any Claim to the extent such Claim constitutes a Permitted Lien
attributable to such Indemnitee;
(vi) any Claim to the extent such Claim is attributable to the
offer, sale, assignment, transfer, participation or other disposition
(whether voluntary or involuntary) by or on behalf of such Indemnitee or
its Related Indemnitee Group other than during the occurrence and
continuance of an Event of Default (provided that any such offer, sale,
assignment, transfer, participation or other disposition during the
occurrence and continuation of an Event of Default shall not be subject to
indemnification unless it is made in accordance with the Indenture and
applicable law) of any Equipment Note or Pass Through Certificate, all or
any part of such Indemnitee's interest in the Operative Documents or the
Pass Through Documents or any interest in the Collateral or any similar
security;
(vii) any Claim to the extent such Claim is attributable to (A) a
failure on the part of the Loan Trustee to distribute in accordance with
this Agreement or the Indenture any amounts received and distributable by
it hereunder or thereunder, (B) a failure on the part of the Subordination
Agent to distribute in accordance with the Intercreditor Agreement any
amounts received and distributable by it thereunder or (C) a failure on
the part of any Pass Through Trustee to distribute in accordance with the
Pass Through Trust Agreement to which it is a party any amounts received
and distributable by it thereunder;
(viii) any Claim to the extent such Claim is attributable to the
authorization or giving or withholding of any future amendments,
supplements, waivers or consents with respect to any Operative Document or
any Pass Through Document, other than such as have been requested by the
Company or that occur as the result of an Event of Default, or such as are
expressly required or contemplated by the provisions of the Operative
Documents or the Pass Through Documents;
(ix) any Claim to the extent such Claim is payable or borne by (a)
the Company pursuant to any indemnification, compensation or reimbursement
provision of any other Operative Document or any Pass Through Document or
12
(b) a Person in its individual capacity other than the Company pursuant to
any provision of any Operative Document or any Pass Through Document;
(x) any Claim to the extent such Claim is an ordinary and usual
operating or overhead expense;
(xi) any Claim to the extent such Claim is incurred by or asserted
as a result of any "prohibited transaction" within the meaning of Section
406 of ERISA or Section 4975 of the Code; and
(xii) any Claim to the extent such Claim is attributable to one or
more of the other aircraft financed through the offering of Pass Through
Certificates (in the event of doubt, any Claim shall be allocated between
the Aircraft and such other aircraft in the same proportion that the then
outstanding Equipment Notes bear to the then outstanding equipment notes
issued with respect to the other aircraft and held by the Pass Through
Trustees).
(e) Insured Claims. In the case of any Claim indemnified by the
Company hereunder that is covered by a policy of insurance maintained by the
Company, each Indemnitee agrees to cooperate, at the Company's expense, with the
insurers in the exercise of their rights to investigate, defend or compromise
such Claim.
(f) Claims Procedure. An Indemnitee shall promptly notify the
Company of any Claim as to which indemnification is sought; provided that the
failure to provide such prompt notice shall not release the Company from any of
its obligations to indemnify hereunder, except to the extent that the Company is
prejudiced by such failure or the Company's indemnification obligations are
increased as a result of such failure. Such Indemnitee shall promptly submit to
the Company all additional information in such Indemnitee's possession to
substantiate such request for payment to the Company as the Company shall
reasonably request. Subject to the rights of insurers under policies of
insurance maintained by the Company, the Company shall have the right, at its
sole cost and expense, to investigate, and the right in its sole discretion to
defend or compromise, any Claim for which indemnification is sought under this
Section 4.02, and, at the Company's expense, the Indemnitee shall cooperate with
all reasonable requests of the Company in connection therewith. Such Indemnitee
shall not enter into a settlement or other compromise with respect to any Claim
without the prior written consent of the Company, which consent shall not be
unreasonably withheld or delayed, unless such Indemnitee waives its right to be
indemnified with respect to such Claim under this Section 4.02. Where the
Company or the insurers under a policy of insurance maintained by the Company
undertake the defense of an Indemnitee with respect to a Claim, no additional
legal fees or expenses of such Indemnitee in connection with the defense of such
Claim shall be indemnified hereunder unless such fees or expenses were incurred
at the written request of the Company or such insurers. Subject to the
requirements of any
13
policy of insurance, an Indemnitee may participate at its own expense in any
judicial proceeding controlled by the Company pursuant to the preceding
provisions; provided that such party's participation does not, in the opinion of
the counsel appointed by the Company or its insurers to conduct such
proceedings, interfere with such control; and such participation shall not
constitute a waiver of the indemnification provided in this Section 4.02.
Notwithstanding anything to the contrary contained herein, the Company shall not
under any circumstances be liable for the fees and expenses of more than one
counsel for all Indemnitees.
(g) Subrogation. To the extent that a Claim indemnified by the
Company under this Section 4.02 is in fact paid in full by the Company or an
insurer under a policy of insurance maintained by the Company, the Company or
such insurer, as the case may be, shall, without any further action, be
subrogated to the rights and remedies of the Indemnitee on whose behalf such
Claim was paid with respect to the transaction or event giving rise to such
Claim. Such Indemnitee shall give such further assurances or agreements and
shall cooperate with the Company or such insurer, as the case may be, to permit
the Company or such insurer to pursue such rights and remedies, if any, to the
extent reasonably requested by the Company. So long as no Event of Default shall
have occurred and be continuing, if an Indemnitee receives any payment from any
party other than the Company or its insurers, in whole or in part, with respect
to any Claim paid by the Company or its insurers hereunder, it shall promptly
pay over to the Company the amount received (but not an amount in excess of the
amount the Company or any of its insurers has paid in respect of such Claim).
Any amount referred to in the preceding sentence that is payable to the Company
shall not be paid to the Company, or, if it has been previously paid directly to
the Company, shall not be retained by the Company, if at the time of such
payment an Event of Default shall have occurred and be continuing, but shall be
paid to and held by the Loan Trustee as security for the obligations of the
Company under this Agreement, the Indenture and the other Operative Documents,
and, if the Company agrees, shall be applied against the Company's obligations
hereunder and thereunder when and as they become due and payable and, at such
time as there shall not be continuing any such Event of Default, such amount, to
the extent not previously so applied against the Company's obligations, shall be
paid to the Company; provided that if any such amount has been so held by the
Loan Trustee as security for more than 90 days after any such Event of Default
shall have occurred, during which period (i) the Loan Trustee shall not have
been limited by operation of law or otherwise from exercising remedies under the
Indenture and (ii) the Loan Trustee shall not have exercised any remedy
available to it under Section 4.02 of the Indenture, then such amount, to the
extent not previously so applied against the Company's payment obligations,
shall be paid to the Company.
(h) No Guaranty. Nothing set forth in this Section 4.02 shall
constitute a guarantee by the Company that the Aircraft shall at any time have
any particular value, useful life or residual value.
14
(i) Payments; Interest. Any amount payable to any Indemnitee
pursuant to this Section 4.02 shall be paid within 30 days after receipt of a
written demand therefor from such Indemnitee accompanied by a written statement
describing in reasonable detail the Claims that are the subject of and basis for
such indemnity and the computation of the amount payable. Any payments made
pursuant to this Section 4.02 directly to an Indemnitee or to the Company, as
the case may be, shall be made in immediately available funds at such bank or to
such account as is specified by the payee in written directions to the payor or,
if no such directions shall have been given, by check of the payor payable to
the order of the payee and mailed to the payee by certified mail, return receipt
requested, postage prepaid to its address referred to in Section 7.01. To the
extent permitted by applicable law, interest at the Past Due Rate shall be paid,
on demand, on any amount or indemnity not paid when due pursuant to this Section
4.02 until the same shall be paid. Such interest shall be paid in the same
manner as the unpaid amount in respect of which such interest is due.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF STATE STREET
Section 5.01. Representations, Warranties and Covenants of State
Street. State Street, generally, and each of the Loan Trustee, the Subordination
Agent and the Pass Through Trustee as it relates to it, represents, warrants and
covenants that:
(a) State Street is a national banking association duly organized
and validly existing in good standing under the laws of the United States, is
eligible to be the Loan Trustee under Section 8.01(a) of the Indenture, will
promptly comply with Section 8.01(a) of the Indenture and has full power,
authority and legal right to enter into and perform its obligations under each
of the Operative Documents and the Pass Through Documents to which State Street,
the Loan Trustee, the Subordination Agent or any Pass Through Trustee is a party
and, in its capacity as Loan Trustee and Pass Through Trustee, respectively, to
authenticate the Equipment Notes and the Pass Through Certificates,
respectively. State Street is qualified to act as Loan Trustee under Section
8.01(c) of the Indenture.
(b) The execution, delivery and performance by State Street,
individually or in its capacity as Loan Trustee, Subordination Agent or Pass
Through Trustee, as the case may be, of this Agreement, each of the other
Operative Documents and each of the Pass Through Documents to which State
Street, the Loan Trustee, the Subordination Agent or any Pass Through Trustee is
a party, and the authentication of the Equipment Notes and the Pass Through
Certificates, respectively, to be delivered on the Closing Date, have been duly
authorized by all necessary action on the part of State Street, the Loan
Trustee, the Subordination Agent and each Pass Through Trustee, as the case may
15
be, and do not violate any law or regulation of the United States or of the
state of the United States in which State Street is located and which governs
the banking and trust powers of State Street or any order, writ, judgment or
decree of any court, arbitrator or governmental authority applicable to State
Street, the Loan Trustee, the Subordination Agent or any Pass Through Trustee or
any of their assets, will not violate any provision of the articles of
association or by-laws of State Street and will not violate any provision of, or
constitute a default under, any mortgage, indenture, contract, agreement or
undertaking to which any of State Street, the Loan Trustee, the Subordination
Agent or any Pass Through Trustee is a party or by which any of them or their
respective properties may be bound or affected.
(c) Neither the execution and delivery by State Street, individually
or in its capacity as Loan Trustee, Subordination Agent or Pass Through Trustee,
as the case may be, of this Agreement, any other Operative Document or any Pass
Through Document to which State Street, the Loan Trustee, the Subordination
Agent or any Pass Through Trustee is a party, nor the consummation by State
Street, the Loan Trustee, the Subordination Agent or any Pass Through Trustee of
any of the transactions contemplated hereby or thereby, requires the
authorization, consent or approval of, the giving of notice to, the filing or
registration with, or the taking of any other action in respect of, any
governmental authority or agency of the United States or the state of the United
States where State Street is located and regulating the banking and trust powers
of State Street.
(d) This Agreement, each other Operative Document and each Pass
Through Document to which State Street, the Loan Trustee, the Subordination
Agent or any Pass Through Trustee is a party have been duly executed and
delivered by State Street, individually and in its capacity as Loan Trustee,
Subordination Agent or Pass Through Trustee, as the case may be, and constitute
the legal, valid and binding obligations of State Street, the Loan Trustee, the
Subordination Agent and such Pass Through Trustee, as it shall be a party
thereto, enforceable against it in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the rights of creditors generally and by general
principles of equity.
(e) It unconditionally agrees with and for the benefit of the
parties to this Agreement that it will not directly or indirectly create, incur,
assume or suffer to exist any Loan Trustee Lien or Other Party Lien attributable
to it, and it agrees that it will, at its own cost and expense, promptly take
such action as may be necessary to discharge and satisfy in full any such Lien;
and it shall indemnify, protect, defend and hold harmless each Indemnitee and
the Company against Claims in any way resulting from or arising out of a breach
by it of its obligations under this Section 5.01(e).
16
(f) The Equipment Notes to be issued to the Subordination Agent
pursuant hereto are being acquired by it to be held under the Intercreditor
Agreement.
(g) Each of State Street, the Loan Trustee, the Subordination Agent
and each Pass Through Trustee agrees that it will not impose any lifting charge,
cable charge, remittance charge or any other charge or fee on any transfer by
the Company of funds to, through or by State Street, the Loan Trustee, the
Subordination Agent or such Pass Through Trustee pursuant to this Agreement, any
other Operative Document or any Pass Through Document, except as may be
otherwise agreed to in writing by the Company.
(h) Each of State Street, the Loan Trustee, the Subordination Agent
and any Pass Through Trustee agrees to be bound by the terms of Section 10.16 of
the Indenture.
(i) There are no Taxes payable by State Street, the Loan Trustee,
the Subordination Agent or any Pass Through Trustee imposed by the State of
Connecticut or any political subdivision or taxing authority thereof in
connection with the execution, delivery or performance by State Street, the Loan
Trustee, the Subordination Agent or any Pass Through Trustee of any Operative
Document or any Pass Through Document (other than franchise or other taxes based
on or measured by any fees or compensation received by any such Person for
services rendered in connection with the transactions contemplated by the
Operative Documents or the Pass Through Documents), and there are no Taxes
payable by any Pass Through Trustee imposed by the State of Connecticut or any
political subdivision thereof in connection with the acquisition, possession or
ownership by such Pass Through Trustee of any of the Equipment Notes (other than
franchise or other taxes based on or measured by any fees or compensation
received by such Pass Through Trustee for services rendered in connection with
the transactions contemplated by the Operative Documents or the Pass Through
Documents) and, assuming that the Pass Through Trusts will not be taxable for
Federal income tax purposes as corporations, but, rather, will be characterized
for such purposes as grantor trusts or partnerships, the Pass Through Trusts
will not be subject to any Taxes imposed by the State of Connecticut or any
political subdivision thereof.
(j) Except with the consent of the Company, which shall not be
unreasonably withheld, State Street will act as Pass Through Trustee solely
through its offices within the State of Connecticut, except for such services
that may be performed for it by various agents, but not directly by it, in other
states.
(k) There are no pending or, to its knowledge, threatened actions or
proceedings against the State Street, the Loan Trustee, the Subordination Agent
or any Pass Through Trustee before any court or administrative agency which
individually or in the aggregate, if determined adversely to it, would
materially adversely affect the ability of State Street, the Loan Trustee, the
Subordination Agent or any Pass Through Trustee
17
to perform its obligations under any Operative Document or any Pass Through
Document.
(l) The representations and warranties contained in Section 7.15 of
each Pass Through Trust Agreement are true, complete and correct as of the
Closing Date.
ARTICLE VI
OTHER COVENANTS AND AGREEMENTS
Section 6.01. Other Agreements.
(a) The Company agrees promptly to pay (without duplication of any
other obligation the Company may have to pay such amounts) (A) the initial and
annual fees and (to the extent the Loan Trustee is entitled to be reimbursed for
its reasonable expenses) the reasonable expenses of the Loan Trustee in
connection with the transactions contemplated hereby and (B) the following
expenses incurred by the Loan Trustee, the Subordination Agent and the Pass
Through Trustees in connection with the negotiation, preparation, execution and
delivery of this Agreement, the other Operative Documents and the other
documents or instruments referred to herein or therein:
(i) the reasonable fees, expenses and disbursements of (x) ▇▇▇▇▇▇▇
▇▇▇▇ LLP, special counsel for the Loan Trustee, the Subordination Agent
and the Pass Through Trustees and (y) ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special FAA
counsel in Oklahoma City, Oklahoma; and
(ii) all reasonable expenses incurred in connection with printing
and document production or reproduction expenses, and the filing of
Uniform Commercial Code financing statements.
(b) The Loan Trustee, the Noteholders, the Subordination Agent and
each Pass Through Trustee agree to execute and deliver, at the Company's
expense, all such documents as the Company may reasonably request for the
purpose of continuing the registration of the Aircraft at the FAA in the
Company's name. In addition, each of the Loan Trustee, the Subordination Agent,
each Pass Through Trustee and any other Noteholder agrees, for the benefit of
the Company, to cooperate with the Company in effecting any foreign registration
of the Aircraft pursuant to Section 7.02(e) of the Indenture; provided that
prior to any such change in the country of registry of the Aircraft the
conditions set forth in Section 7.02(e) of the Indenture are met to the
reasonable satisfaction of, or waived by, the Loan Trustee.
(c) Each of State Street, the Loan Trustee, the Subordination Agent,
each Pass Through Trustee and any other Noteholder, and, by entering into the
Liquidity Facilities, the Liquidity Provider, agrees that, unless an Event of
Default shall have
18
occurred and be continuing (and then only in accordance with the Indenture), it
shall not take any action contrary to, or otherwise in any way interfere with or
disturb, the quiet enjoyment of the use and possession of the Aircraft, the
Airframe, any Engine or any Part by the Company or any transferee of any
interest in any thereof permitted under the Indenture.
(d) Each Noteholder, including, without limitation, the
Subordination Agent and each Pass Through Trustee, unconditionally agrees with
and for the benefit of the parties to this Agreement that it will not directly
or indirectly create, incur, assume or suffer to exist any Noteholder Liens, and
such Noteholder agrees that it will, at its own cost and expense, promptly take
such action as may be necessary to discharge and satisfy in full any such
Noteholder Lien; and each Noteholder hereby agrees to indemnify, protect, defend
and hold harmless each Indemnitee and the Company against Claims in any way
resulting from or arising out of a breach by it of its obligations under this
Section 6.01(d).
(e) By its acceptance of its Equipment Notes, each Noteholder
unconditionally agrees for the benefit of the Company and the Loan Trustee to be
bound by and to perform and comply with all of the terms of such Equipment
Notes, the Indenture and this Agreement applicable to such Noteholder.
Section 6.02. Certain Covenants of the Company. The Company
covenants and agrees with the Loan Trustee as follows:
(a) On and after the Closing, the Company will cause to be done,
executed, acknowledged and delivered such further acts, conveyances and
assurances as the Loan Trustee shall reasonably request for accomplishing
the purposes of this Agreement and the other Operative Documents; provided
that any instrument or other document so executed by the Company will not
expand any obligations or limit any rights of the Company in respect of
the transactions contemplated by the Operative Documents.
(b) The Company will cause the Indenture (with the Indenture
Supplement covering the Aircraft attached) to be promptly filed and
recorded, or filed for recording, with the FAA to the extent permitted
under the Transportation Code and the rules and regulations of the FAA
thereunder.
(c) The Company, at its expense, will take, or cause to be taken,
such action with respect to the recording, filing, re-recording and
refiling of the Indenture and any financing statements or other
instruments as are necessary to maintain, so long as the Indenture is in
effect, the perfection of the security interests created by the Indenture
or will furnish the Loan Trustee timely notice of the necessity of such
action, together with such instruments, in execution form,
19
and such other information as may be required to enable the Loan Trustee
to take such action. In addition, the Company will pay any and all
recording, stamp and other similar taxes payable in the United States, and
in any other jurisdiction where the Aircraft is registered, in connection
with the execution, delivery, recording, filing, re-recording and refiling
of the Indenture or any such financing statements or other instruments.
The Company will notify the Loan Trustee of any change in its state of
incorporation promptly after making such change or in any event within the
period of time necessary under applicable law to prevent the lapse of
perfection (absent refiling) of financing statements filed under the
Operative Documents.
(d) The Company shall at all times maintain its corporate existence
except as permitted by Section 6.02(e).
(e) The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease substantially all of its assets as an
entirety to any Person, unless:
(i) the Person formed by such consolidation or into which the
Company is merged or the Person that acquires by conveyance,
transfer or lease substantially all of the assets of the Company as
an entirety shall, if and to the extent required under Section 1110
in order that the Loan Trustee shall continue to be entitled to any
benefits of Section 1110 with respect to the Aircraft, be a
Certificated Air Carrier and shall execute and deliver to the Loan
Trustee an agreement containing the assumption by such successor
Person of the due and punctual performance and observance of each
covenant and condition of the Operative Documents to which the
Company is a party to be performed or observed by the Company;
(ii) immediately after giving effect to such transaction, no
Event of Default shall have occurred and be continuing; and
(iii) the Company shall have delivered to the Loan Trustee a
certificate signed by a Responsible Officer of the Company, and an
opinion of counsel (which may be the Company's General Counsel or
such other internal counsel to the Company as shall be reasonably
satisfactory to the Loan Trustee), each stating that such
consolidation, merger, conveyance, transfer or lease and the
assumption agreement mentioned in clause (i) above comply with this
Section 6.02(e) and that all conditions precedent herein provided
relating to such transaction have been complied with (except that
such opinion need not cover the matters referred to in clause (ii)
above and may rely, as to factual matters, on a
20
certificate of an officer of the Company) and, in the case of such
opinion, that such assumption agreement has been duly authorized,
executed and delivered by such successor Person and is enforceable
against such successor Person in accordance with its terms, except
as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
rights of creditors generally and by general principles of equity.
Upon any consolidation or merger, or any conveyance, transfer or
lease of substantially all of the assets of the Company as an entirety in
accordance with this Section 6.02(e), the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Agreement and the
other Operative Documents with the same effect as if such successor Person had
been named as the Company herein.
(f) The Company shall, for as long as and to the extent required
under Section 1110 in order that the Loan Trustee shall be entitled to any
of the benefits of Section 1110 with respect to the Aircraft, remain a
Certificated Air Carrier.
(g) The Company shall not issue Series E Equipment Notes pursuant to
the Indenture, unless it shall have received Ratings Confirmation (as
defined in the Intercreditor Agreement). If Series E Equipment Notes are
initially issued to other than the Pass Through Trustee for the Class E
Certificates, the Company will cause such Series E Equipment Notes to be
subject to the provisions of the Intercreditor Agreement that allow the
"Controlling Party" (as defined in the Intercreditor Agreement), during
the continuance of an "Indenture Event of Default" (as defined in the
Intercreditor Agreement), to direct the Loan Trustee in taking action
under the Indenture.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices required or permitted under the terms
and provisions of this Agreement shall be in English and in writing, and any
such notice may be given by United States mail, courier service or facsimile or
any other customary means of communication, and any such notice shall be
effective when delivered (or, if mailed three Business Days after deposit,
postage prepaid in the first class United States mail and, if delivered by
facsimile, upon completion of transmission and confirmation by the sender (by a
telephone call to a representative of the recipient or by machine confirmation)
that such transmission was received) to the recipient thereof in accordance with
the provisions
21
of this 7.01, (a) if to the Company, State Street, the Loan Trustee, the
Subordination Agent or any Pass Through Trustee, to its respective address
(including facsimile number) set forth on Schedule I, or (b) if to any
subsequent Noteholder, addressed to such Noteholder at its address set forth in
the Equipment Note Register maintained pursuant to Section 2.07 of the
Indenture.
Any party, by notice to the other parties hereto, may designate
additional or different addresses for subsequent notices or communications.
Section 7.02. Survival of Representations, Warranties, Indemnities,
Covenants and Agreements. Except as otherwise provided for herein, the
representations, warranties, indemnities, covenants and agreements of the
Company, State Street, the Loan Trustee, the Subordination Agent, each Pass
Through Trustee and the Noteholders provided for in this Agreement, and each of
their obligations hereunder, shall survive the making of the loans and the
expiration or termination (to the extent arising out of acts or events occurring
prior to such expiration) of any Operative Documents.
Section 7.03. Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN
THE STATE OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.04. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 7.05. No Oral Modifications or Continuing Waivers; Consents.
Subject to Section 9.03 of the Indenture, no terms or provisions of this
Agreement may be changed, waived, discharged or terminated orally, but only by
an instrument in writing signed by the party against which the enforcement of
the change, waiver, discharge or termination is sought; provided that no such
change, waiver, discharge or termination shall be effective unless a signed copy
thereof is delivered to the Loan Trustee. Each Pass Through Trustee and, by its
acceptance of an Equipment Note, each subsequent Noteholder covenants and agrees
that (a) it shall not unreasonably withhold its consent to any consent of the
Loan Trustee requested by the Company under the terms of the Indenture; and (b)
at any time after the date hereof, the Company and the Loan Trustee may,
pursuant to Section 9.01 of the Indenture, enter into one or more agreements
supplemental to the Indenture and to amend the Equipment Notes, without notice
to or
22
consent of any Noteholder, to provide for the issuance of New Series C Equipment
Notes, New Series D Equipment Notes and/or Second New Series D Equipment Notes
and/or Pass Through Certificates issued by a New Trust in connection with a
Refunding and to make changes relating thereto.
Section 7.06. Effect of Headings and Table of Contents. The headings
of the various Articles and Sections herein and in the Table of Contents are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
Section 7.07. Successors and Assigns. All covenants, agreements,
representations and warranties in this Agreement by the Company, by State
Street, individually or as Loan Trustee, Subordination Agent or Pass Through
Trustee, or by any Noteholder, shall bind and inure to the benefit of and be
enforceable by the Company, and subject to the terms of Section 6.02(e), its
successors and permitted assigns, each Pass Through Trustee and any successor or
other trustee under the Pass Through Trust Agreement to which it is a party, the
Subordination Agent and its successor under the Intercreditor Agreement and the
Loan Trustee and its successor under the Indenture, whether so expressed or not.
Section 7.8. Benefits of Agreement. Nothing in this Agreement,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder, any benefit or any legal or equitable right, remedy
or claim under this Agreement, except as provided expressly herein.
Section 7.9. Counterparts. This Agreement may be executed in any
number of counterparts (and each of the parties hereto shall not be required to
execute the same counterpart). Each counterpart of this Agreement including a
signature page or pages executed by each of the parties hereto shall be an
original counterpart of this Agreement, but all of such counterparts shall
together constitute one instrument.
Section 7.10. Submission to Jurisdiction. Each of the parties
hereto, to the extent it may do so under applicable law, for purposes hereof and
of all other Operative Documents hereby (a) irrevocably submits itself to the
non-exclusive jurisdiction of the courts of the State of New York sitting in the
City of New York and to the non-exclusive jurisdiction of the United States
District Court for the Southern District of New York, for the purposes of any
suit, action or other proceeding arising out of this Agreement, the subject
matter hereof or any of the transactions contemplated hereby brought by any
party or parties hereto, or their successors or permitted assigns and (b)
waives, and agrees not to assert, by way of motion, as a defense, or otherwise,
in any such suit, action or proceeding, that the suit, action or proceeding is
brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper or that this Agreement or the subject matter hereof or
any of the transactions contemplated hereby may not be enforced in or by such
courts.
23
Section 7.11. ERISA. Each of the Company, the Loan Trustee, the Pass
Through Trustee and the Subordination Agent covenant that until the Series A-1
Equipment Notes and Series A-2 Equipment Notes have been paid in full, it shall
not file an involuntary bankruptcy petition or initiate any other form of
insolvency proceeding against the respective Pass Through Trust holding such
Equipment Notes.
24
IN WITNESS WHEREOF, the parties hereto have caused this
Participation Agreement to be duly executed by their respective officers
thereunto duly authorized as of the date first above written.
AMERICAN AIRLINES, INC.
By:____________________________
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Pass Through Trustee under
each of the Pass Through
Trust Agreements
By:__________________________
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Subordination Agent
By:__________________________
Name:
Title:
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Loan Trustee
By:__________________________
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
in its individual capacity as set forth herein
By:__________________________
Name:
Title:
26
SCHEDULE I TO
PARTICIPATION
AGREEMENT
CERTAIN TERMS
Aircraft
Model: B737-823
U.S. Registration Number: N965AN
Manufacturer's Serial Number: 29544
ADDRESSES FOR NOTICES AND ACCOUNT DETAILS
-----------------------------------------
THE COMPANY: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Chase Manhattan Bank
American Airlines, Inc. ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ABA #: 0210 0002 1
Attn: Treasurer Account No.: ▇▇▇-▇-▇▇▇▇▇▇
Telex: 4630158
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
STATE STREET: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ and Trust
State Street Bank and Trust Company Company of Connecticut, N.A. Company of Connecticut, N.A.
of Connecticut, N.A. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ c/o State Street Bank and Trust
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Company
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Boston, MA
Tel: ▇▇▇-▇▇▇-▇▇▇▇ ABA #011-00-0028
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ Corporate Trust
DDA #▇▇▇▇-▇▇▇-▇
FFC: American Airlines
EETC 2001-2
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LOAN TRUSTEE: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ and Trust
State Street Bank and Trust Company Company of Connecticut, N.A. Company of Connecticut, N.A.
of Connecticut, N.A. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ c/o State Street Bank and Trust
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Company
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Boston, MA
Tel: ▇▇▇-▇▇▇-▇▇▇▇ ABA #011-00-0028
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ Corporate Trust
DDA #▇▇▇▇-▇▇▇-▇
FFC: American Airlines
EETC 2001-2
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
I-1
PASS THROUGH TRUSTEE: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ and Trust
State Street Bank and Trust Company Company of Connecticut, N.A. Company of Connecticut, N.A.
of Connecticut, N.A. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ c/o State Street Bank and Trust
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Company
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Boston, MA
Tel: ▇▇▇-▇▇▇-▇▇▇▇ ABA #011-00-0028
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ Corporate Trust
DDA #▇▇▇▇-▇▇▇-▇
FFC: American Airlines
EETC 2001-2
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SUBORDINATION AGENT: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ and Trust
State Street Bank and Trust Company Company of Connecticut, N.A. Company of Connecticut, N.A.
of Connecticut, N.A. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ c/o State Street Bank and Trust
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Company
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Boston, MA
Tel: ▇▇▇-▇▇▇-▇▇▇▇ ABA #011-00-0028
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ Corporate Trust
DDA #▇▇▇▇-▇▇▇-▇
FFC: American Airlines
EETC 2001-2
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
I-2
SCHEDULE II to
PARTICIPATION AGREEMENT
EQUIPMENT NOTES,
PURCHASERS AND ORIGINAL PRINCIPAL AMOUNTS
Description of Interest Original Principal
Purchaser Equipment Notes Maturity Rate Amount
--------- --------------- -------- ---- ------
American Airlines Series 2001-2A-1 April 1, 2011 6.978% $ 6,011,683
Pass Through Trust Equipment Note
2001-2A-1 EN-2001-2A-1-001
American Airlines Series 2001-2A-2 October 1, 2011 7.858% $13,767,600
Pass Through Trust Equipment Note
2001-2A-2 EN-2001-2A-2-001
American Airlines Series 2001-2B April 1, 2011 8.608% $ 3,292,746
Pass Through Trust Equipment Note
2001-2B EN-2001-2B-001
American Airlines Series 2001-2C October 1, 2006 8.078% $ 4,536,761
Pass Through Trust Equipment Note
2001-2C EN-2001-2C-001
American Airlines Series 2001-2D October 1, 2006 8.578% $ 4,417,242
Pass Through Trust Equipment Note
2001-2D EN-2001-2D-001
II-1
SCHEDULE III to
PARTICIPATION AGREEMENT
TRUST SUPPLEMENTS
Trust Supplement No. 2001-2A-1, dated as of October 4, 2001, between
the Company and the Pass Through Trustee in respect of American Airlines Pass
Through Trust 2001-2A-1.
Trust Supplement No. 2001-2A-2, dated as of October 4, 2001, between
the Company and the Pass Through Trustee in respect of American Airlines Pass
Through Trust 2001-2A-2.
Trust Supplement No. 2001-2B, dated as of October 4, 2001, between
the Company and the Pass Through Trustee in respect of American Airlines Pass
Through Trust 2001-2B.
Trust Supplement No. 2001-2C, dated as of October 4, 2001, between
the Company and the Pass Through Trustee in respect of American Airlines Pass
Through Trust 2001-2C.
Trust Supplement No. 2001-2D, dated as of October 4, 2001, between
the Company and the Pass Through Trustee in respect of American Airlines Pass
Through Trust 2001-2D.
III-1
EXHIBIT A to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
COUNSEL FOR THE COMPANY.
A-1
EXHIBIT B to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
SPECIAL COUNSEL FOR THE LOAN TRUSTEE, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇-▇
EXHIBIT C to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
SPECIAL FAA COUNSEL
C-1
EXHIBIT D to
PARTICIPATION AGREEMENT
FORM OF OPINION OF COUNSEL FOR THE LIQUIDITY PROVIDER
D-1
EXHIBIT E to
PARTICIPATION AGREEMENT
FORM OF MANUFACTURER'S CONSENT
E-1
EXHIBIT F to
PARTICIPATION AGREEMENT
FORM OF OPINION
SPECIAL COUNSEL FOR THE PASS THROUGH TRUSTEES
F-1
