Exhibit 1
EXECUTION COPY
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AMERICAN AIRLINES, INC.
Pass Through Certificates, Series 2002-1
UNDERWRITING AGREEMENT
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Dated: As of September 17, 2002
AMERICAN AIRLINES, INC.
Pass Through Certificates, Series 2002-1
UNDERWRITING AGREEMENT
September 17, 2002
To the Underwriters named in Schedule I
Ladies and Gentlemen:
American Airlines, Inc., a Delaware corporation (the "Company"),
proposes that State Street Bank and Trust Company of Connecticut, National
Association ("State Street"), 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 2002-1G (the "Offered Pass Through
Trust") established pursuant to the Designated Agreement to fund the purchase of
equipment notes (the "Equipment Notes") to be issued by the Company in
connection with the financing of nineteen Aircraft. The Equipment Notes will be
issued under nineteen separate Indenture and Security Agreements between State
Street, 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 State Street, as pass through trustee
under American Airlines, Inc. Pass Through Trust, Series 2002-1C (the "Class C
Trust") and American Airlines, Inc. Pass Through Trust, Series 2002-1D (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 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 (as defined herein) and
Wilmington Trust Company, as Owner Trustee, as of the
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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.
Certain amounts of interest payable on the Offered Certificates
issued by the Offered Trust will be entitled to the benefits of a primary
liquidity facility. In addition, certain amounts of interest payable on the
Offered Certificates will be entitled to the benefit of an above-cap liquidity
facility. WestLB AG, New York Branch (the "Primary Liquidity Provider") will
enter into a revolving credit agreement with respect to the Offered Pass Through
Trust (the "Primary Liquidity Facility"), to be dated as of the Closing Time for
the benefit of the holders of the Offered Certificates. Credit Suisse First
Boston International (the "Above-Cap Liquidity Provider") will enter into an
interest rate cap agreement (the "Above-Cap Liquidity Facility" and, together
with the Primary Liquidity Facility, the "Liquidity Facilities"), to be dated as
of the Closing Time for the benefit of the holders of the Offered Certificates.
The Primary Liquidity Provider, the Above-Cap Liquidity Provider, MBIA Insurance
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, State Street, as
subordination agent and trustee thereunder (the "Subordination Agent"), the
Primary Liquidity Provider, the Above-Cap 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 Primary Liquidity Facility and Above-Cap Liquidity
Facility for such Offered Certificates and any funds contained in the cash
collateral account funded from any such 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ("SSB") and ▇.▇. ▇▇▇▇▇▇ Securities
Inc.
Capitalized terms not otherwise defined in this Agreement shall have
the meanings specified therefore in the Designated Agreement or the
Intercreditor Agreement; provided that, as used in this Agreement, the term
"Operative Documents" shall mean the Intercreditor Agreement, the Primary
Liquidity Facility, the Above-Cap Liquidity Facility, the Designated Agreement,
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 Class C Trust Supplement, the Class D Trust
Supplement, the Participation Agreement, the Indentures, the Reference Agency
Agreement and the Statutory Trust Agreements.
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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 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
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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, 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 either of 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.
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(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 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,
(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, and (iii) such as may be required
in connection with listing the Offered Certificates on the Luxembourg
Stock Exchange.
(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
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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.
(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 thereof 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 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 A.
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(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 SSB 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 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 SSB 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
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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 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 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.
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(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.
(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.
(j) The Company (i) will make an application on its behalf and on
behalf of the Trusts for the Offered Certificates to be listed on the
Luxembourg Stock Exchange (the "LSE") within a reasonable time after the
date of the Preliminary Prospectus and (ii) will (x) deliver to the LSE
copies of the Prospectus (or another appropriate offering document with
respect to the Offered Certificates) and such other documents, information
and undertakings as may reasonably be required or advisable for the
purpose of obtaining such listing, which the Company shall use
commercially reasonable good-faith efforts to obtain within a reasonable
period of time after the Closing Time; (y) if the Offered Certificates are
listed on the LSE, use commercially reasonable good-faith efforts to
maintain such listing on the LSE for as long as any of the Offered
Certificates are outstanding; and (z) pay all reasonable fees and supply
all further documents, information and undertakings as may reasonably be
required or advisable for such purposes.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc, agree 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
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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 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Esq., 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 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
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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
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;
12
(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;
(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 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;
13
(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;
(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
14
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.
(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
15
and the Intercreditor Agreement and by the Subordination Agent
of the Intercreditor Agreement and the Liquidity Facilities,
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.
(3) An opinion, dated the Closing Time, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
LLP, counsel for State Street, individually, as Subordination Agent,
Trustee and Loan Trustee, in form and substance reasonably
satisfactory to you and your counsel and substantially to the effect
set forth in Exhibit A hereto.
(4) An opinion, dated the Closing Time, from (i) Vedder,
Price, ▇▇▇▇▇▇▇▇ & Kammholz, special counsel for the Primary
Liquidity Provider, and (ii) in-house counsel for the Primary
Liquidity Provider, each dated the Closing Time and 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 Sidley ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ LLP, special New York counsel for the Above-Cap
Liquidity Provider, dated the Closing Time, 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 (i) ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for the Policy Provider, and (ii) Ram ▇. ▇▇▇▇▇▇▇▇,
in-house counsel for the Policy Provider, each dated the Closing
Time and in form and substance satisfactory to you and your counsel,
substantially to the effect set forth in Exhibits D-1 and D-2,
respectively.
(7) 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 E hereto.
(8) An opinion, dated the Closing Time, from Shearman &
Sterling, counsel for the Underwriters, to the effect that the
opinions delivered pursuant to
16
subsections (b)(1) through (b)(7) 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. nor
Standard & Poor's Ratings Services shall have downgraded its rating
accorded to any of the Company's taxable debt securities with maturities
greater than one year.
(d) You shall have received the letter specified in Schedule III at
the Closing Time.
(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
17
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 Standard & Poor's Ratings Services; and "Aaa" by ▇▇▇▇▇'▇
Investors Service, Inc.
(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.
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
18
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 Primary Liquidity Provider, the Above-Cap 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 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 either of 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
19
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
either of 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 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
20
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 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
21
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 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.
22
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 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.
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
confirmed and accepted as of
the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
On their behalf and on behalf of each of the several Underwriters named in
Schedule I hereto.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
By: ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
SCHEDULE A
to
Underwriting
Agreement
Final Expected
Class of Aggregate Regular
Pass Through Face Distribution
Certificates Amount Interest Rate Date
--------------- --------- ------------- --------------
2002-1, Class G $617,000,000 USD 3-month LIBOR + 0.62% September 23, 2007
SCHEDULE I
to
Underwriting
Agreement
Dated: As of September 17, 2002
AMERICAN AIRLINES, INC.
FACE
AMOUNT OF
CLASS G
CERTIFICATES
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. $102,835,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. 102,833,000
Credit Suisse First Boston Corporation 102,833,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated 102,833,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 102,833,000
WestLB AG, London Branch 102,833,000
------------
Total $617,000,000
============
All notices to the Underwriters shall be sent as follows:
c/o Mr. ▇▇▇▇ ▇▇▇▇▇▇ c/o Mr. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
SCHEDULE II
to
Underwriting
Agreement
Dated: As of September 17, 2002
AMERICAN AIRLINES, INC.
Underwriting fees, discounts, commissions or other compensation: $4,010,500.00
Closing date, time and location: 10:00 A.M. on September 24, 2002 at the
offices of Debevoise & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SCHEDULE III
to
Underwriting
Agreement
[Letter From Ernst & Young LLP]
