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EXHIBIT 1
EXECUTION COPY
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AMERICAN AIRLINES, INC.
Pass Through Certificates, Series 1999-1
UNDERWRITING AGREEMENT
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Dated: September 23, 1999
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AMERICAN AIRLINES, INC.
Pass Through Certificates, Series 1999-1
UNDERWRITING AGREEMENT
September 23, 1999
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, acting not in its individual capacity but solely as pass through
trustee (the "Trustee") under the Pass Through Trust Agreement to be dated as of
October 1, 1999 (the "Basic Agreement"), as supplemented for each class of pass
through certificates (the "Pass Through Certificates") to be purchased hereunder
(each, a "Class") by a Trust Supplement (each, a "Trust Supplement"), in each
case between the Company and the Trustee (for each Class, the Basic Agreement,
as supplemented by the related Trust Supplement, being referred to herein
individually as a "Designated Agreement"), issue and sell to the underwriters
named in Schedule I hereto its Pass Through Certificates in the aggregate
amounts and with the applicable interest rates and final expected distribution
dates set forth on Schedule A hereto (the "Offered Certificates") on the terms
and conditions stated herein and in Schedule II.
Each Class of Pass Through Certificates will represent interests in a
separate trust (each, a "Pass Through Trust") established pursuant to the
related Designated Agreement to fund the purchase of equipment notes (the
"Equipment Notes") to be issued by the Company in connection with the financing
of fifteen Aircraft. The Equipment Notes will be issued under fifteen separate
Indenture and Security Agreements between State Street Bank and Trust Company of
Connecticut, National Association ("State Street"), as Loan Trustee (the "Loan
Trustee"), and the Company (each, including any Supplements thereto, an
"Indenture" and, collectively, the "Indentures").
Certain amounts of interest payable with respect to the Pass Through
Certificates will be entitled to the benefits of separate liquidity facilities.
Bayerische Landesbank Girozentrale (the "Liquidity Provider") will enter into a
separate revolving credit agreement with respect to each Pass Through Trust
(each, a "Liquidity Facility"), to be dated as of the date on which the Closing
Time (as defined below) occurs, for the benefit of the
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holders of the respective Class of Pass Through Certificates. The Liquidity
Provider and the holders of the Offered Certificates will be entitled to the
benefits of an Intercreditor Agreement to be dated as of the date on which the
Closing Time occurs (the "Intercreditor Agreement") among State Street, as
Trustee of each Pass Through Trust, the Liquidity Provider and State Street, as
Subordination Agent (the "Subordination Agent").
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 Credit Suisse First Boston Corporation and Xxxxxx Xxxxxxx & Co.
Incorporated ("Xxxxxx Xxxxxxx").
Capitalized terms used but not otherwise defined in this Agreement
shall have the meanings specified in or pursuant to the Designated Agreements or
the Intercreditor Agreement; provided that as used in this Agreement, the term
"Operative Documents" shall mean the Intercreditor Agreement, the Liquidity
Facilities, the Designated Agreements, the Participation Agreements and the
Indentures.
The Company has prepared and filed on Form S-3 with the Securities and
Exchange Commission (the "Commission") a registration statement (File No.
333-74937) (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 with the Commission pursuant to the Exchange Act that are
incorporated by reference therein. Any reference herein to the terms "amendment"
or "supplement" with
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respect to the Registration Statement, the Prospectus, or any preliminary
prospectus shall be deemed to refer to and include any documents filed with the
Commission under the Exchange Act after the date hereof, the date the Prospectus
is filed with the Commission, or the date of such preliminary prospectus, as the
case may be, and incorporated therein by reference pursuant to Item 12 of Form
S-3 under the Securities Act.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act.
(b) The Registration Statement has been declared effective by
the Commission. On the original effective date of the Registration
Statement, on the effective date of any post-effective amendment
thereto, and on the date of the filing by the Company of any Annual
Report on Form 10-K after the original filing of such Registration
Statement, such Registration Statement complied in all material
respects with the applicable requirements of the Securities Act and the
rules and regulations of the Commission thereunder (the "Securities Act
Regulations"), and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the applicable rules and regulations of the
Commission thereunder (the "Trust Indenture Act Regulations") and did
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; the Registration Statement and any
amendments thereof, on the date hereof, and the Prospectus, and any
amendments thereof and supplements thereto, as of their respective
filing or issue dates and at the Closing Time, comply and will comply
in all material respects with the requirements of the Securities Act,
the Securities Act Regulations, the Trust Indenture Act and the Trust
Indenture Act Regulations, and (i) neither the Registration Statement
nor any amendments thereof, as of any such respective dates, 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
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which constitutes the Statement of Eligibility under the Trust
Indenture Act (Form T-1) of the Trustee.
(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, has
the corporate power and authority under such laws to own its properties
and conduct its business as described in the Prospectus.
(g) The Company (i) is an "air carrier" within the meaning of
49 U.S.C. Section 40102(a), (ii) holds an air carrier operating
certificate issued by the Secretary of Transportation pursuant to
Chapter 447 of Title 49 of the United States Code for aircraft capable
of carrying 10 or more individuals or 6,000 pounds or more of cargo,
(iii) is a "citizen of the United States" as defined in 49 U.S.C.
Section 40102 and (iv) is duly qualified to do business as a foreign
corporation in good standing in the jurisdictions in 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.
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(h) The execution and delivery by the Company of this
Agreement, the Equipment Notes and the Operative Documents to which the
Company is, or is to be, a party, the consummation by the Company of
the transactions herein and therein contemplated, and the compliance by
the Company with the terms hereof and thereof do not and will not
conflict with, or result in a breach of, any of the terms or provisions
of, or constitute a default under, the Certificate of Incorporation or
By-Laws, as amended, of the Company or any of its subsidiaries or any
material indenture, mortgage, or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which any of
their respective properties is bound, or any applicable law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any of its subsidiaries or any of their respective
properties; and no consent, approval, authorization, order or license
of, or filing with or notice to, any government, governmental
instrumentality, regulatory body or authority or court, domestic or
foreign, is required for the valid authorization, issuance and delivery
of the Offered Certificates and the Equipment Notes, the valid
authorization, execution, delivery and performance by the Company of
this Agreement, the Equipment Notes and the Operative Documents to
which the Company is, or is to be, a party, or the consummation by the
Company of the transactions contemplated by this Agreement, the
Equipment Notes and the Operative Documents to which the Company is, or
is to be, a party, except (i) such as are required under the Securities
Act, the Trust Indenture Act and the securities or Blue Sky laws of the
various states and, (ii) filings or recordings with the Federal
Aviation Administration ("FAA") and under the Uniform Commercial Code
as in effect in Texas, which filings or recordings shall have been made
or duly presented for filing on or prior to the Closing Time.
(i) This Agreement, the Equipment Notes and the Operative
Documents to which the Company is, or is to be, a party, have each been
duly authorized by the Company, and this Agreement and each Operative
Document to which the Company is, or is to be, a party, have been or
will be at or prior to the Closing Time, duly executed and delivered by
the Company. The Equipment Notes will be duly executed and delivered by
the Company at or prior to the Closing Time. The Equipment Notes and
the Operative Documents to which the Company is or is to be, a party,
when duly executed and delivered by the Company, assuming in the case
of the Operative Documents that such documents constitute the legal,
valid and binding obligation of each other party thereto, constitute or
will constitute valid and binding obligations of the Company. The Basic
Agreement as executed is substantially in the form filed as an exhibit
to the Registration Statement and has been duly qualified under the
Trust Indenture Act. The Offered Certificates, the Equipment Notes, and
the Operative Documents will conform in all material respects to the
descriptions thereof in the Prospectus.
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(j) Ernst & Young LLP, who reported on the annual consolidated
financial statements of the Company incorporated by reference in the
Registration Statement and the Prospectus, are independent accountants
as required by the Securities Act and the Securities Act Regulations.
(k) When duly executed, authenticated and delivered by the
Trustee in accordance with the terms of the related Designated
Agreements and sold and paid for as provided in this Agreement, the
Offered Certificates will be validly issued pursuant to the related
Designated Agreements 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 Agreements.
(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.
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 principal amount thereof, the
aggregate principal amount of each Class of Offered Certificates set forth
opposite the name of such Underwriter in Schedule A.
(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 Trustees by federal funds wire transfer or other
immediately available funds against delivery to the account of Xxxxxx Xxxxxxx 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
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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 Xxxxxx Xxxxxxx 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 principal 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 principal
amount of the Offered Certificates that each severally has agreed to
purchase, the name of each Underwriter, if any, acting as
representative of the Underwriters in connection with the offering, the
price at which the Offered Certificates are to be purchased by the
Underwriters from the Trustee, any initial public offering price, any
selling concession and reallowance, and such other information as you
and the Company deem appropriate in connection with the offering of the
Offered Certificates. The Company will promptly transmit copies of the
Prospectus Supplement and the Prospectus to the Commission for filing
pursuant to Rule 424 under the Securities Act and will furnish to the
Underwriters as many copies of the Prospectus Supplement and the
Prospectus as you shall reasonably request.
(b) During the period when a prospectus relating to the
Offered Certificates is required to be delivered under the Securities
Act, the Company will promptly advise you of (i) the effectiveness of
any amendment to the Registration Statement, (ii) the transmittal to
the Commission for filing of any supplement to the Prospectus or any
document that would as a result thereof be incorporated by reference in
the Prospectus, (iii) any request by the Commission for any amendment
of the Registration Statement or any amendment or supplement to the
Prospectus or for any additional information relating thereto or to any
document incorporated by reference therein, (iv) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose, and (v) the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Offered Certificates for sale in any jurisdiction or the institution or
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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
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process under the laws of any such jurisdiction or subject itself to
taxation as doing business in any such jurisdiction.
(g) The Company, during the period when a prospectus relating
to the Offered Certificates is required to be delivered under the
Securities Act and the Securities Act Regulations, will file promptly
all documents required to be filed with the Commission pursuant to
Section 13 or 14 of the Exchange Act.
(h) The Company will make generally available to its security
holders, in each case as soon as practicable, but not later than 45
days after the close of the period covered thereby (90 days in case the
period covered corresponds to a fiscal year of the Company), earnings
statements of the Company, which will comply as to form with the
provisions of Rule 158 under the Securities Act.
(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; provided, however, that it is understood and agreed
that the restrictions of this paragraph shall not apply to the
approximately $210 million Dallas-Forth Worth International Airport
Facility Improvement Corporation American Airlines, Inc. Revenue Bonds,
Series 1999, currently scheduled to close in October 1999, and related
transactions.
(j) If and to the extent specified in Schedule II, the Company
will promptly after the date hereof, in the event it has not already
done so, file an application for the listing of the Offered
Certificates on the securities exchange specified in said Schedule II
and will use its best efforts to cause such Offered Certificates to be
duly authorized for listing thereon, subject to official notice of
issuance, and to be registered under the Exchange Act.
4. Conditions to the Obligations of the Underwriters. Except
as otherwise provided in Schedule II, the obligations of the Underwriters to
purchase and pay for the Offered Certificates pursuant to this Agreement shall
be subject to the accuracy of and compliance with the representations and
warranties of the Company contained herein as of the date hereof and the Closing
Time, to the accuracy of the statements of the Company's officers made in any
certificates furnished pursuant to the provisions hereof, to the performance by
the
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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 Xxxx X.
XxXxxxxx, 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 Offered 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;
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(iv) No authorization, approval, consent,
order or license of or filing with or notice to any
government, governmental instrumentality, regulatory
body or authority or court is required for the valid
authorization, issuance, sale and delivery of the
Offered Certificates or the Equipment Notes, the
valid authorization, execution, delivery and
performance by the Company of this Agreement and the
Operative Documents to which the Company is, or is to
be, a party, or the consummation by the Company of
the transactions contemplated by this Agreement and
the other Operative Documents to which the Company
is, or is to be, a party, except such as have been
obtained under the Securities Act and the Trust
Indenture Act, and such as may be required under the
securities or Blue Sky laws of the various states and
except for the filing of Uniform Commercial Code
financing statements (or amendments to any such
financing statements) and the filing of continuation
statements with respect thereto required to be filed
at periodic intervals under the Uniform Commercial
Code and any filings or recordings with the Federal
Aviation Administration, as to which such counsel
need express no opinion;
(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
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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, reorganization,
moratorium or other similar laws affecting
enforcement of creditors' rights generally and by
general principles of equity;
(ix) The execution and delivery by the
Company of this Agreement, the Equipment Notes and
the Operative Documents to which the Company is, or
is to be, a party, the consummation by the Company of
the transactions herein and therein contemplated and
in the manner herein and therein contemplated and
compliance by the Company with the terms hereof and
thereof, do not and will not conflict with, or result
in a breach of, any of the terms or provisions of, or
constitute a default under, the Certificate of
Incorporation or By-Laws, as amended, of the Company
or any of its subsidiaries or any indenture or other
agreement or instrument known to such counsel to
which the Company or any of its subsidiaries is a
party or by which the Company or any of its
subsidiaries is bound or any law, rule, regulation,
judgment, decree or order known to such counsel to be
applicable to the Company or any of its subsidiaries
of any court, regulatory body, administrative agency,
government or governmental body having jurisdiction
over the Company or any of its subsidiaries;
(x) The Loan Trustee under each Indenture
will be entitled to the benefits of Section 1110 of
the 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,
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moratorium or other similar laws affecting
enforcement of creditors' rights generally and by
general principles of equity and the holders of the
Equipment Notes will be entitled to the benefits of
the respective Indentures; and
(xii) Such counsel has no reason to believe
that the statements in the Registration Statements
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), (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
Xxxxxxx Xxxx 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 Statements or the
Prospectus which are not described as required, nor
any contracts or documents of a character required to
be described in the Registration Statements or the
Prospectus, or to be filed as exhibits to the
Registration Statements, that are not so described or
filed as required;
(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; and
(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 such 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;
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
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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, on the effective date of any post-effective amendment thereto, or on
the date of the filing by the Company of its most recent Annual Report on Form
10-K after the filing of the Registration Statement (except, in each case, for
the financial statements and other financial and statistical data included or
incorporated by reference therein, and except for the Statement of Eligibility
on Form T-1 of the Trustee under the Basic Agreement, as to which such counsel
need express no belief), contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or (B) that the Prospectus at the
time the Prospectus Supplement was issued or the Prospectus, together with any
amendment or supplement thereto, at the time any such amended or supplemental
Prospectus was issued or at the Closing Time (except, in each case, for the
financial statements and other financial and statistical data included or
incorporated by reference therein, 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 as to the securities laws
of any state. 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
& Xxxxxxxx, as counsel for the Company, in form reasonably
satisfactory to you and your counsel, to the effect that:
(i) The Offered Certificates have been duly
authorized and validly executed, issued and delivered
by the Trustee pursuant to the related Designated
Agreements 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
Offered Certificates are entitled to the benefits of
the related Designated Agreements;
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(ii) The statements in the Registration
Statement and Prospectus under the headings "Certain
Federal Income Tax Consequences" and "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 should not be
classified as associations (or as publicly traded
partnerships) taxable as corporations for federal
income tax purposes, but rather, based on an
interpretation of analogous authorities under
existing law, each Pass Through Trust should be
classified as a grantor trust under subpart E, Part I
of Subchapter J of Chapter 1 of subtitle A of the
Internal Revenue Code of 1986, as amended, and each
of the Certificate Owners should be treated as the
owner of a pro rata undivided interest in each of the
related Equipment Notes and any other property held
in the related Pass Through Trust;
(iv) Section 1110 of the Bankruptcy Code
("Section 1110") conforms in all material respects to
the description thereof contained in "Description of
the Equipment Notes - Remedies" in the Prospectus.
Such counsel notes that during 1998, the U.S.
District Court for the District of Colorado issued
opinions arising from the bankruptcy proceedings of
Western Pacific Airlines, Inc. relating to Section
1110. The decisions held that, once an airline debtor
reaffirms its obligations and cures its defaults
under an aircraft lease within the prescribed period
in accordance with Section 1110, the lessor under
such lease is not entitled to repossess the aircraft
under Section 1110 if the airline subsequently
defaults under such lease. In the opinion of such
counsel, such District Court holdings are erroneous
because they are inconsistent with the overriding
purpose of Section 1110 to protect creditors secured
by qualifying aircraft against being stayed from
exercising their rights while defaults under their
financing agreements remain uncured;
(v) The Trusts are not required to be
registered under the Investment Company Act of 1940,
as amended; and
(vi) Assuming due authorization, execution
and delivery by the Trustee of the Designated
Agreements 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
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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 clause (vi) 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 Xxxxxxx
Xxxx 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)
Winthrop, Stimson, Xxxxxx & Xxxxxxx, counsel for the Liquidity
Provider, in form and substance satisfactory to you and your
counsel and substantially to the effect set forth in Exhibit
B-1 hereto, and (ii) Xxxxxxx Xxxxxx Xxxxxxxxxx Kelwing Xxxxx,
German counsel for the Liquidity Provider, in form and
substance satisfactory to you and your counsel and
substantially to the effect set forth in Exhibit B-2 hereto.
(5) An opinion, dated the Closing Time, from Shearman
& Sterling, counsel for the Underwriters, to the effect that
the opinions delivered pursuant to subsections (b)(1) through
(b)(4) 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
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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 Xxxxx'x 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)(5) 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) If the Offered Certificates are specified in Schedule II
as securities to be listed on a securities exchange, the Offered
Certificates shall have been duly authorized for listing by the
securities exchange specified in said Schedule II, subject only to
official notice of issuance.
(h) Each of the Appraisers shall have furnished to the
Underwriters a letter from such Appraiser, addressed to the Company and
dated the Closing Time, confirming that such Appraiser and each of its
directors and officers (i) is not an affiliate of the Company or any of
its affiliates, (ii) does not have any substantial interest, direct or
indirect, in the Company or any of its affiliates and (iii) is not
connected with the Company or any of its affiliates as an officer,
employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
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(i) At the Closing Time, the Offered Certificates shall be
rated "AAA", in the case of the Offered Certificates of the Class A-1
Trust, "AAA", in the case of the Offered Certificates of the Class A-2
Trust, "AA-", in the case of the Offered Certificates of the Class B
Trust and "A", in the case of the Offered Certificates of the Class C
Trust, by Standard & Poor's Ratings Services; and "Aa1", in the case of
the Offered Certificates of the Class A-1 Trust, "Aa1", in the case of
the Offered Certificates of the Class A-2 Trust, "Aa3", in the case of
the Offered Certificates of the Class B Trust and "A1", in the case of
the Offered Certificates of the Class C Trust, by Xxxxx'x Investors
Service, Inc.
(j) 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 Pass Through 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, Pass Through Trustees 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.
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 Offered
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Certificates, the Equipment Notes, the Operative Documents, any Underwriter's
Questionnaire, the Blue Sky Survey and any Legal Investment Survey by the
Underwriter's counsel, (iii) expenses relating to the issuance and delivery of
the Offered Certificates to the Underwriters, (iv) the fees and disbursements of
the Company's counsel and accountants, (v) expenses of qualifying the Offered
Certificates under state securities laws in accordance with Section 3(f),
including filing fees and fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the Blue Sky Survey and any Legal
Investment Survey, (vi) the fees and expenses of the Trustee, the Subordination
Agent, the Loan Trustees and the Liquidity 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)
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 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 to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that (i) the Company will not be
liable in any such case to the extent that any such loss, claim, damage, or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon,
and in conformity with, written information relating to any Underwriter
furnished to the Company by or on behalf of such Underwriter through either of
you
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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, (ii) the foregoing
indemnity agreement, with respect to any preliminary prospectus, shall not inure
to the benefit of any Underwriter (or any person controlling such Underwriter)
as to whom it shall be established did not send or deliver to the person
asserting any such loss, claim, damage or liability and who purchased Offered
Certificates which are the subject thereof a copy of the Prospectus as amended
or supplemented (exclusive of material incorporated by reference) at or prior to
the written confirmation of the sale of such Offered Certificates in any case
where such delivery is required by the Securities Act, and the untrue statement
or omission of a material fact contained in such preliminary prospectus was
corrected in the Prospectus as amended or supplemented and the Company had
previously furnished copies thereof to such Underwriter, and (iii) the Company
will not be liable for any loss, liability or expense of any settlement of any
pending or threatened litigation or any pending or threatened governmental
agency investigation or proceeding if such settlement is effected without the
prior written consent of the Company. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signed the
Registration Statement, and each person who controls the Company within the
meaning of the Securities Act, against any and all losses, claims, damages,
liabilities and expenses described in the indemnity contained in Section 6(a),
but only with respect to untrue statements or alleged untrue statements or
omissions or alleged omissions made in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter through
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
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21
if, in the reasonable judgment of such indemnified party, a conflict of interest
exists where it is advisable for such indemnified party to be represented by
separate counsel, the indemnified party shall have the right to employ separate
counsel in any such action, in which event the fees and expenses of such
separate counsel shall be borne by the indemnifying party or parties. Upon
receipt of notice from the indemnifying party or parties to such indemnified
party of the election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party or parties will not be
liable to such indemnified party under this Section 6 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party or parties shall not be liable
for the expenses of more than one such separate counsel representing the
indemnified parties under subparagraph (a) of this Section 6 who are parties to
such action), (ii) the indemnifying party or parties shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party or parties have authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party or parties; and
except that, if clause (i) or (iii) is applicable, such liability shall be only
in respect of the counsel referred to in such clause (i) or (iii). It is
understood that all such fees and expenses of counsel for the indemnified party
for which the indemnifying party is liable shall be reimbursed as they are
incurred. No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding and does not include a statement
as to or an admission of fault, culpability or failure to act by or on behalf of
any indemnified party.
(d) If the indemnification provided for in paragraph (a) or
(b) of this Section 6 is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Offered
Certificates pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the
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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 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
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proportions which the aggregate principal amount of Offered Certificates
specified to be purchased by them in Schedule I bears to the aggregate principal
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 principal amount of Offered Certificates that the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal 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.
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 other
calamity or crisis the effect 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
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governmental authority, or 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 X.X. Xxx 000000, Xxxxxx/Xxxx Xxxxx Xxxxxxx, Xxxxx
00000-0000, attention of the Treasurer.
11. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons and
officers and directors referred to in Section 6 and their successors, heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties and their respective successors and said
controlling persons and officers and directors and their successors, heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Offered Certificates from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
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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/ XXXXXX XXXXXXXXXX
---------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Managing Director -
Corporate Financing
and Banking
confirmed and accepted as of
the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
By: XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ XXXXXXX XXXXXX
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
27
SCHEDULE A
to
Underwriting
Agreement
Class of Aggregate Final Expected
Pass Through Principal Regular Distribution
Certificates Amounts Interest Rate Date
------------ --------- ------------- ---------------------
1999-1, Class A-1 $150,889,000 6.855% April 15, 2009
1999-1, Class A-2 316,969,000 7.024% October 15, 2009
1999-1, Class B 84,525,000 7.324% October 15, 2009
1999-1, Class C 47,617,000 7.155% October 15, 2004
28
SCHEDULE I
to
Underwriting
Agreement
Dated: September 23, 1999
AMERICAN AIRLINES, INC.
PRINCIPAL PRINCIPAL PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF AMOUNT OF AMOUNT OF
CLASS A-1 CLASS A-2 CLASS B CLASS C
UNDERWRITER CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES
----------- -------------- -------------- -------------- --------------
Credit Suisse First Boston Corporation ...... $ 30,179,000 $ 63,395,000 $ 16,905,000 $ 9,524,000
-------------- -------------- -------------- --------------
Xxxxxx Xxxxxxx & Co. Incorporated ........... 30,179,000 63,395,000 16,905,000 9,524,000
-------------- -------------- -------------- --------------
Xxxxxxx Sachs & Co. ......................... 30,177,000 63,393,000 16,905,000 9,523,000
-------------- -------------- -------------- --------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx ....... 30,177,000 63,393,000 16,905,000 9,523,000
-------------- -------------- -------------- --------------
Incorporated
Xxxxxxx Xxxxx Barney ........................ 30,177,000 63,393,000 16,905,000 9,523,000
-------------- -------------- -------------- --------------
Total ....................................... $ 150,889,000 $ 316,969,000 $ 84,525,000 $ 47,617,000
============== ============== ============== ==============
All notices to the Underwriters shall be sent as follows:
c/o Credit Suisse First Boston Corporation c/o Morgan Xxxxxxx & Co. Incorporated
Eleven Madison Avenue 0000 Xxxxxxxx
Xxx Xxxx, XX 00000 AND Xxx Xxxx, XX 00000
Attention: Transaction Advisory Group Attention: Equipment Finance Group
Fax no: (000) 000-0000 Fax no: (000) 000-0000
29
SCHEDULE II
to
Underwriting
Agreement
Dated: September 23, 1999
AMERICAN AIRLINES, INC.
Underwriting fees, discounts, commissions or other compensation: $3,900,000
Closing date, time and location: 10:00 A.M. on October 6, 1999 at the
offices of Debevoise & Xxxxxxxx, 000
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
Listing requirement: None.
Other terms and conditions: None
30
SCHEDULE III
to
Underwriting
Agreement
Dated:
AMERICAN AIRLINES, INC.
Matters to be covered by Letter or Letters of
Independent Auditors
Ernst & Young shall have furnished to you the following
letter, dated as of the Closing Time, in form and substance satisfactory to you,
to the effect that:
(i) They are independent certified public accountants with
respect to the Company and AMR Corporation within the meaning of the
Securities Act and the applicable published rules and regulations
thereunder, and the answer to Item 10 of the Registration Statement
insofar as it relates to them is none;
(ii) In their opinion, the audited consolidated financial
statements and financial statement schedule incorporated by reference
in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the Securities
Act and the Exchange Act and the related published rules and
regulations thereunder;
(iii) On the basis of performing the procedures specified by
the American Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71, "Interim
Financial Information", on the unaudited consolidated financial
statements of the Company contained in the Company's Quarterly Report
on Form 10-Q for the quarters ended March 31 and June 30, 1999, a
reading of the latest unaudited consolidated financial statements made
available by the Company, a reading of the minutes of the Board of
Directors of the Company and any committees thereof and of the consent
of the sole stockholder of the Company, and a reading of the minutes of
the Board of Directors of AMR Corporation and any committees thereof
and of the stockholders of AMR Corporation, since the date of the
latest audited consolidated financial statements incorporated by
reference in the Registration Statement, inquiries of officials of the
Company responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such
31
2
letter, which do not constitute an audit conducted in accordance with
generally accepted auditing standards and which would not necessarily
reveal matters of significance with respect to the comments set forth
in such letter, nothing came to their attention that caused them to
believe that:
(A) the unaudited consolidated financial statements
incorporated by reference in the Registration Statement do not
comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the Exchange
Act and the rules and regulations thereunder as they apply to
Form 10-Q or that any material modifications should be made to
such unaudited consolidated financial statements for them to
be in conformity with generally accepted accounting
principles;
(B) as of August 31, 1999, and as of a specified date
not more than five calendar days prior to the date of delivery
of such letter, there has been any change in the consolidated
capital stock or consolidated long-term debt of the Company,
or any decrease in consolidated net current assets or
consolidated stockholder's equity of the Company or other
items specified by you, in each case as compared with amounts
shown in the latest consolidated balance sheet incorporated by
reference in the Registration Statement, except in each case
for changes or decreases which the Registration Statement
discloses have occurred or may occur or which are described in
such letter; and
(C) for the period July 1, 1999 to August 31, 1999,
and for the period from the date of the latest consolidated
financial statements of the Company incorporated by reference
in the Registration Statement to a specified date not more
than five calendar days prior to the date of delivery of such
letter, there were any decreases in consolidated total
operating revenues, consolidated operating income or
consolidated net earnings of the Company, in each case as
compared with the comparable period of the preceding year and
with any other period of corresponding length reasonably
specified by you, except in each case for decreases which the
Registration Statement discloses have occurred or may occur or
which are described in such letter; and
(iv) They have performed certain procedures specified in their
letter for the purpose of determining whether certain financial
information with respect to the Company and its consolidated
subsidiaries appearing or incorporated by reference in the Registration
Statement and specified in said letter agrees with indicated amounts in
the applicable financial statements or accounting records of the
Company and its subsidiaries or affiliates.
32
3
EXHIBIT B-1
to
Underwriting
Agreement
Form of Opinion of Winthrop, Stimson, Xxxxxx & Xxxxxxx
1. The Revolving Credit Agreements and the Intercreditor Agreement
(collectively, the "Liquidity Documents") constitute the valid and legally
binding agreements of the parties thereto, enforceable against each party
thereto in accordance with their respective terms.
2. The execution, delivery and performance by Bayerische Landesbank
Girozentrale ("Bayerische") of the Liquidity Documents and the consummation of
the transactions contemplated therein do not violate any banking law, or any
governmental rule or regulation relating thereto, of the United States of
America or the State of New York.
3. No authorization, consent, approval or other action by, and no
notice to or filing with, any banking authority or regulatory body of the United
States of America or the State of New York is required for the due execution,
delivery and performance by Bayerische of the Liquidity Documents, other than
administrative and ministerial filings which Bayerische is obligated to make in
the ordinary course of its business (which filings we have assumed have been and
will continue to be made in a timely manner).
Our opinion is subject to the following qualifications and limitations:
(a) Our opinion in paragraph 1 above is subject to (i) the
effect of applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance and other laws affecting creditors' rights generally, (ii)
general equitable principles, (iii) requirements of reasonableness,
good faith and fair dealing, and (iv) additionally, in the case of
indemnities and exculpatory provisions (including certain waivers) in
the Liquidity Documents, the effect of public policy.
(b) Our opinion is limited to the law of the State of New York
and the federal law of the United States of America.
The above opinions may be subject to such assumptions and
qualifications as may be acceptable to the Underwriters.
33
EXHIBIT B-2
to
Underwriting
Agreement
Form of Opinion of Xxxxxxx Xxxxxx Xxxxxxxxxx Kelwing Xxxxx
1. Bayerische Landesbank Girozentrale ("Bayerische") is a German public
law banking institution (Anstalt des Offentlichen Rechts) duly established and
validly existing under the laws of the Federal Republic of Germany.
2. Bayerische has the power to enter into the Revolving Credit
Agreements and the Intercreditor Agreement (collectively, the "Liquidity
Documents") which are duly executed on behalf of Bayerische when signed by the
two officers of Bayerische, Xx. Xxxxx Xxxxxx and Mr. Xxxxxxx Xxxx.
3. The obligations of Bayerische under the Liquidity Documents are
legal, valid, binding and enforceable against Bayerische in accordance with
their respective terms, except to the extent that enforcement may be limited by
equitable principles and applicable bankruptcy, insolvency, re-organization,
moratorium or other similar laws affecting creditors' rights generally.
4. It is not necessary that any of the Liquidity Documents be filed,
recorded or enrolled with any public office, governmental authority or court in
the Federal Republic of Germany, or that any German stamp or similar tax be paid
in order to ensure the legality or validity in the Federal Republic of Germany.
5. No consent or approval of any governmental or public bodies or
authorities or courts of the Federal Republic of Germany is required by
Bayerische in connection with the execution and delivery of the Liquidity
Documents and the performance by Bayerische of its obligations under the
Liquidity Documents.
6. The execution, delivery and performance of the Liquidity Documents
does not violate any law of the Federal Republic of Germany applicable to
Bayerische.
7. The choice of the law of the State of New York to govern the
obligations of the parties under the Liquidity Documents will be upheld as a
valid choice of law in any action brought in connection with the Liquidity
Documents in the courts of Germany against Bayerische and the submission by
Bayerische to the non-exclusive jurisdiction of the courts of the State of New
York sitting in the City of New York and the United States District Court for
the Southern District of New York is binding on it.
34
2
8. Any final and conclusive judgment rendered by the Supreme Court of
the State of New York or by the United States District Court for the Southern
District of New York for a definite sum for the recovery of amounts due and
unpaid by Bayerische under the Revolving Credit Agreements will be enforceable
against Bayerische in the Federal Republic of Germany subject to the applicable
rules for obtaining a necessary executory decision (action upon the foreign
judgment) issued by a competent German court.
9. The payment obligations of Bayerische under the Revolving Credit
Agreements rank pari passu with its obligations to pay any other unsecured and
unprivileged obligations of Bayerische for borrowed money that are not preferred
by contractual stipulations or by law or in proceedings under the German
Composition Code (Vergleichsordnung) or Bankruptcy Code (Konkursordnung) or
Insolvency Code (Insolvenzordnung) or by similar laws affecting creditors'
rights generally.
The above opinions may be subject to such assumptions and
qualifications as may be acceptable to the Underwriters.
