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EXHIBIT 4(d)(1)
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PARTICIPATION AGREEMENT
(N908AN)
Dated as of October 6, 1999
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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One Boeing 737-823 Aircraft
U.S. Registration No. N908AN
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TABLE OF CONTENTS
Page
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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...........................................................................17
Section 6.02 Certain Covenants of the Company...........................................................18
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ARTICLE VII
MISCELLANEOUS
Section 7.01 Notices.........................................................................................20
Section 7.02 Survival of Representations, Warranties, Indemnities,
Covenants and Agreements........................................................................21
Section 7.03 Governing Law...................................................................................21
Section 7.04 Severability....................................................................................21
Section 7.05 No Oral Modifications or Continuing Waivers; Consents...........................................21
Section 7.06 Effect of Headings and Table of Contents........................................................22
Section 7.07 Successors and Assigns..........................................................................22
Section 7.08 Benefits of Agreement...........................................................................22
Section 7.09 Counterparts....................................................................................22
Section 7.10 Submission to Jurisdiction......................................................................22
Schedule I - Equipment Notes, Purchasers and Original Principal Amounts
Schedule II - 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-1 - Form of Opinion of Counsel for the Liquidity Provider
Exhibit D-2 - Form of Opinion of German 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
(N908AN)
This PARTICIPATION AGREEMENT (N908AN), dated as of October 6,
1999, 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 Boeing
Model 737-823 aircraft 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 four (and in
certain circumstances five) 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 II 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;
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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 I opposite
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the name of such Pass Through Trust. The Pass Through Trustees, on behalf of
the Pass Through Trusts, shall make such loans 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 I 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 6, 1999, 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 shall have
been executed and delivered by the Company, as debtor, and by the Loan Trustee,
as secured party, and such financing statement or statements shall have been
duly filed in all places necessary or desirable within the State of Texas.
(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 Date, certifying as to the correctness of each of
the matters stated in Section 3.01(f).
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(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 Winthrop, Stimpson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
Liquidity Provider, substantially in the form set forth in Exhibit D-1, and
from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Shniewind Kelwig ▇▇▇▇▇, German counsel for the Liquidity
Provider, substantially in the form set forth in Exhibit D-2.
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(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 Underwriting
Agreement, the Pass Through Certificates shall have been issued and sold
pursuant to the Underwriting Agreement and the Underwriters shall have
transferred to the Pass Through Trustees in immediately available funds an
amount at least equal to the aggregate purchase price of the Equipment Notes to
be purchased from the Company.
(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.
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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 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.
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(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 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), and its
chief executive office (as such term is used in Article 9 of the Uniform
Commercial Code as in effect in the State of Texas) is located in Fort Worth,
Texas.
(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
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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
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.
(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 Texas,
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
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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 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
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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;
(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
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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 (b) a Person 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
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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 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
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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.
(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
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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
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
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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).
(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
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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 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, 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
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Provider, agrees that, unless an Event of Default shall have 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, 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
the location of its chief executive office (as such term is used in Article 9
of the Uniform Commercial Code as in effect in the State of Texas) promptly
after making such change or in any event within the period of time
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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 Citizen of the United
States and 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 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.
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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),
if to the Company, to:
American Airlines, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
Maildrop 5662
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to State Street, the Loan Trustee, the Subordination Agent or any Pass
Through Trustee, to:
State Street Bank And Trust Company of Connecticut,
National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or 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
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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 it shall not unreasonably withhold its consent to any
consent of the Loan Trustee requested by the Company under the terms of the
Indenture.
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 7.08. 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 7.09. 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
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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.
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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: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President - Corporate
Development and Treasurer
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Pass Through Trustee under each of the Pass
Through Trust Agreements
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Subordination Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Loan Trustee
By: /s/ ALISON DELLA BELLA
------------------------------
Name: Alison Della Bella
Title:
23
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
in its individual capacity as set forth herein
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary:
24
28
SCHEDULE I to
PARTICIPATION AGREEMENT
EQUIPMENT NOTES,
PURCHASERS AND ORIGINAL PRINCIPAL AMOUNTS
Original
Description of Interest Principal
Purchaser Equipment Notes Maturity Rate Amount
--------- --------------- -------- -------- ---------
American Airlines Series 1999-1A-1 April 15, 6.855% $7,169,266.67
Pass Through Trust Equipment Note 2009
1999-1A-1 EN-1A1-001
American Airlines Series 1999-1A-2 October 7.024% $14,569,800.00
Pass Through Trust Equipment Note 15, 2009
1999-1A-2 EN-1A2-001
American Airlines Series 1999-1B October 7.324% $3,885,280.00
Pass Through Trust Equipment Note 15, 2009
1999-1B EN-1B-001
American Airlines Series 1999-1C October 7.155% $2,191,886.68
Pass Through Trust Equipment Note 15, 2004
1999-1C EN-1C-001
I-1
29
SCHEDULE II to
PARTICIPATION AGREEMENT
TRUST SUPPLEMENTS
Trust Supplement No. 1999-1A-1, dated as of October 6, 1999, between
the Company and the Pass Through Trustee in respect of American Airlines Pass
Through Trust 1999-1A-1.
Trust Supplement No. 1999-1A-2, dated as of October 6, 1999, between
the Company and the Pass Through Trustee in respect of American Airlines Pass
Through Trust 1999-1A-2.
Trust Supplement No. 1999-1B, dated as of October 6, 1999, between the
Company and the Pass Through Trustee in respect of American Airlines Pass
Through Trust 1999-1B.
Trust Supplement No. 1999-1C, dated as of October 6, 1999, between the
Company and the Pass Through Trustee in respect of American Airlines Pass
Through Trust 1999-1C.
II-1
30
EXHIBIT A to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
COUNSEL FOR THE COMPANY
A-1
31
EXHIBIT B to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
SPECIAL COUNSEL FOR THE LOAN TRUSTEE, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇-▇
32
EXHIBIT C to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
SPECIAL FAA COUNSEL
C-1
33
EXHIBIT D-1 to
PARTICIPATION AGREEMENT
FORM OF OPINION OF COUNSEL FOR THE LIQUIDITY PROVIDER
▇-▇
▇▇
▇▇▇▇▇▇▇ ▇-▇ to
PARTICIPATION AGREEMENT
FORM OF OPINION OF GERMAN COUNSEL FOR THE LIQUIDITY PROVIDER
D-2
35
EXHIBIT E to
PARTICIPATION AGREEMENT
FORM OF MANUFACTURER'S CONSENT
▇-▇
▇▇
▇▇▇▇▇▇▇ ▇ TO
PARTICIPATION AGREEMENT
FORM OF OPINION
SPECIAL COUNSEL FOR THE PASS THROUGH TRUSTEES
F-1