exv10w4






Exhibit 10.4





THE COMPANY HAS REQUESTED AN ORDER FROM THE SECURITIES AND EXCHANGE
COMMISSION (THE “COMMISSION”) PURSUANT TO RULE 24B-2 OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED, GRANTING CONFIDENTIAL TREATMENT TO
SELECTED PORTIONS. ACCORDINGLY, THE CONFIDENTIAL PORTIONS HAVE BEEN OMITTED
FROM THIS EXHIBIT, AND HAVE BEEN FILED SEPARATELY WITH THE COMMISSION.
OMITTED PORTIONS ARE INDICATED IN THIS EXHIBIT WITH “*****”.



 









 





TRANSITION SERVICES AGREEMENT



BETWEEN



AMERICAN AIRLINES, INC.



AND



AMERICAN EAGLE AIRLINES, INC.



DATED AS OF _____, 2011







 









 








TABLE OF CONTENTS




	 	 	 	 	 

	ARTICLE 1 DEFINITIONS AND INTERPRETATION
	 	 	1	 
	ARTICLE 2 TERM
	 	 	6	 
	Section 2.1 Term
	 	 	6	 
	Section 2.2 Extension
	 	 	6	 
	ARTICLE 3 SERVICES
	 	 	6	 
	Section 3.1 Services
	 	 	6	 
	Section 3.2 Service Level
	 	 	6	 
	Section 3.3 Recipients of Services
	 	 	6	 
	Section 3.4 Scope of Services
	 	 	7	 
	Section 3.5 Change of Control
	 	 	7	 
	Section 3.6 Subcontracting Services
	 	 	7	 
	Section 3.7 Information Regarding Services
	 	 	7	 
	Section 3.8 Legal Services
	 	 	8	 
	Section 3.9 Headquarters
	 	 	8	 
	Section 3.10 Warranty Disclaimer
	 	 	8	 
	ARTICLE 4 DISCONTINUANCE OF SERVICES
	 	 	8	 
	Section 4.1 Potential Discontinuance
	 	 	8	 
	Section 4.2 Procedure
	 	 	9	 
	Section 4.3 Service Level and Price of Discontinued Services
	 	 	9	 
	Section 4.4 Impossible Services
	 	 	9	 
	Section 4.5 Discontinued Service Assistance
	 	 	9	 
	Section 4.6 Reinstatement of Discontinued Service
	 	 	10	 
	ARTICLE 5 SERVICES OBTAINED FROM OTHERS
	 	 	10	 
	Section 5.1 Upon Discontinuance
	 	 	10	 
	Section 5.2 Before Discontinuance
	 	 	10	 
	ARTICLE 6 PRICES
	 	 	10	 
	Section 6.1 Pricing
	 	 	10	 
	Section 6.2 Price Increases
	 	 	10	 
	ARTICLE 7 PAYMENT
	 	 	10	 
	Section 7.1 Invoices
	 	 	10	 
	Section 7.2 Payment
	 	 	11	 
	Section 7.3 Method of Payment
	 	 	11	 
	ARTICLE 8 RECORDS
	 	 	11	 
	Section 8.1 Record Keeping
	 	 	11	 
	Section 8.2 Examination
	 	 	11	 
	ARTICLE 9 CONFIDENTIAL INFORMATION
	 	 	12	 
	Section 9.1 Confidential Information
	 	 	12	 
	Section 9.2 HIPAA — Business Associate Agreement
	 	 	12	 
	ARTICLE 10 PARTIES’ RELATIONSHIP
	 	 	13	 
	Section 10.1 Eagle Employees
	 	 	13	 
	Section 10.2 American Employees
	 	 	13	 
	Section 10.3 Limits on Relationship
	 	 	13	 
	Section 10.4 Third-Party Consents
	 	 	13	 
	ARTICLE 11 REPRESENTATIONS AND WARRANTIES
	 	 	13	 






- i -









 






	 	 	 	 	 

	Section 11.1 Eagle Representations and Warranties
	 	 	13	 
	Section 11.2 American Representations and Warranties
	 	 	14	 
	ARTICLE 12 PARTIES’ REPRESENTATIVES
	 	 	15	 
	Section 12.1 Representatives’ Authority
	 	 	15	 
	Section 12.2 Designation
	 	 	15	 
	ARTICLE 13 TERMINATION
	 	 	15	 
	Section 13.1 Termination Without Cause
	 	 	15	 
	Section 13.2 Termination by Either Party
	 	 	16	 
	Section 13.3 Termination by American
	 	 	17	 
	Section 13.4 Consequences of Termination
	 	 	17	 
	ARTICLE 14 LIABILITY AND REMEDIES
	 	 	17	 
	Section 14.1 Warranties
	 	 	17	 
	Section 14.2 Nonconforming Services
	 	 	17	 
	Section 14.3 Indemnities for Certain Breaches and Other Matters
	 	 	19	 
	Section 14.4 Time for Claims
	 	 	21	 
	Section 14.5 Right of Set-Off
	 	 	21	 
	Section 14.6 Punitive Damages
	 	 	22	 
	Section 14.7 Exclusive Remedies
	 	 	22	 
	Section 14.8 Survival
	 	 	22	 
	ARTICLE 15 FORCE MAJEURE
	 	 	22	 
	Section 15.1 No Breach or Liability
	 	 	22	 
	Section 15.2 Notice of Excusable Delay or Failure
	 	 	23	 
	Section 15.3 Efforts to Overcome
	 	 	23	 
	ARTICLE 16 DISPUTE RESOLUTION
	 	 	23	 
	Section 16.1 Resolution of Disputes
	 	 	23	 
	Section 16.2 Equitable Remedies
	 	 	25	 
	Section 16.3 Meet and Confer
	 	 	26	 
	ARTICLE 17 EXPENSES AND TAXES
	 	 	26	 
	Section 17.1 Expenses
	 	 	26	 
	Section 17.2 Taxes
	 	 	26	 
	ARTICLE 18 MISCELLANEOUS
	 	 	28	 
	Section 18.1 Notices
	 	 	28	 
	Section 18.2 Binding Effect and Assignment
	 	 	29	 
	Section 18.3 Amendment and Modification
	 	 	29	 
	Section 18.4 Waiver
	 	 	29	 
	Section 18.5 Interpretation
	 	 	29	 
	Section 18.6 Cooperation with Respect to Reporting
	 	 	30	 
	Section 18.7 Entire Agreement; Conflicts with this Agreement
	 	 	30	 
	Section 18.8 Severability
	 	 	30	 
	Section 18.9 Governing Law
	 	 	30	 
	Section 18.10 Remedies Cumulative
	 	 	30	 
	Section 18.11 Jurisdiction
	 	 	30	 
	Section 18.12 Further Assurances
	 	 	31	 
	Section 18.13 No Third Party Beneficiaries
	 	 	31	 
	Section 18.14 Counterparts
	 	 	31	 
	Section 18.15 Survival of Certain Obligations
	 	 	31	 











- ii -









 








TRANSITION SERVICES AGREEMENT



This Transition Services Agreement is dated as of ______, 2011 (the “Effective Date”), among American
Airlines, Inc., a Delaware corporation (together with its successors and permitted assigns,
“American”), and American Eagle Airlines, Inc., a Delaware corporation (together with its
successors and permitted assigns, “Eagle”).




BACKGROUND




     WHEREAS, in connection with the contemplated separation of AMR Corporation, a Delaware
corporation (together with its successors and permitted assigns, “AMR”) and AMR Eagle Holding
Corporation a Delaware corporation (together with its successors and permitted assigns, “Eagle
Holding”), AMR and Eagle Holding will enter into a Separation and Distribution Agreement; and



     WHEREAS, as contemplated in the Separation and Distribution Agreement, American will provide
Eagle and Eagle Affiliates with certain transition services for a limited period of time, as more
particularly described in this Agreement;



     WHEREAS, Eagle desires to receive the services as described in this Agreement; and



     WHEREAS, contemporaneously herewith certain Ancillary Agreements are being executed that are
critical to the purposes of this Agreement, which Ancillary Agreements shall be deemed
consideration for this Agreement; it being understood that without such Ancillary Agreements this
Agreement would not have been executed.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
acknowledged by the Parties, American and Eagle, for themselves, their successors and assigns,
agree as follows:



ARTICLE 1

DEFINITIONS AND INTERPRETATION



The following terms shall have the meanings set forth below for all purposes of this Agreement and
shall be equally applicable to both the singular and the plural forms of the terms defined herein.
All references to specific Schedules as set forth in this Agreement shall be those certain
schedules attached hereto, which shall be deemed incorporated herein by reference and a part hereof
for all purposes.




     “Affiliate” shall mean a Person that directly or indirectly through one or more intermediaries
controls, is controlled by, or is under common control with another Person.



     “Agreement” shall mean this Transition Services Agreement between American and Eagle
(including the Schedules), as it may be amended or supplemented from time to time in accordance
with its terms.



     “Air Services Agreement” shall mean that certain Air Services Agreement dated as of August 31,
2011, by and between American and Eagle and Executive Airlines, Inc.



1









 





     “American” shall have the meaning given to such term in the Introductory Paragraph.



     “American’s Representative” shall mean the individual agent or representative designated by
American to be American’s formal liaison with or representative to Eagle for matters relating to
the Agreement.



     “AMR” shall have the meaning given to such term in the Background.



     “Ancillary Agreements” shall have the meaning given to such term in the Separation and
Distribution Agreement.



     “Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday unless such day
shall be a day when the Federal Reserve Bank of Dallas, or any Governmental Authority then
performing similar functions in or around Fort Worth, Texas, is closed. A Business Day shall be
deemed to end at 5:00 p.m., Central time.



     “Change of Control” shall have the same meaning as that term has in the Air Services
Agreement.



     “Confidential Information” shall mean any information or data, either oral or written,
received by one Party from the other Party, whether pursuant to or in connection with this
Agreement, and which is (a) marked as being “Confidential” or “Proprietary”; (b) otherwise
reasonably identifiable as confidential or proprietary information; or (c) under the circumstances
should reasonably be considered as confidential or proprietary information, including the terms and
conditions of this Agreement; provided that “Confidential Information” shall not include (x)
information received by a Party after the Distribution Date, free of any obligation of confidence
at the time of the disclosing Party’s communication to the receiving Party; (y) information
obtained from a third person or entity that is not prohibited from transmitting such information to
the receiving Party as a result of a contractual, legal or fiduciary obligation to the Party whose
information is being disclosed; or (z) information that is or becomes generally available to the
public, other than as a result of disclosure by a Party in violation of this Agreement.



     “Consent” shall mean any written authorization, agreement, approval, consent, ratification,
waiver or other authorization, and “Consented” shall mean the act of providing any such Consent.



     “Deficiency” shall mean American’s failure in rendering a Service or Task at or above the
applicable Level established under the Agreement. (“Deficient” has the correlative meaning.)



     “Dispute” shall have the meaning given to such term in Section 16.1.



     “Dispute Resolution Procedure” shall mean the procedure or process by which a Dispute shall be
resolved (except as otherwise stated in the Agreement) as described in ARTICLE 16.



     “Distribution” shall have the meaning given to such term in the Separation and Distribution
Agreement.



2









 





     “Distribution Date” shall have the meaning set forth in the Separation and Distribution
Agreement.



     “Eagle” shall have the meaning given to such term in the Introductory Paragraph.



     “Eagle Holding” shall have the meaning given to such term in the Background.



     “Eagle’s Representative” shall mean the individual agent or representative designated by Eagle
to be Eagle’s formal liaison with or representative to American for matters relating to the
Agreement.



     “Effective Date” shall have the meaning given to such term in the first paragraph of this
Agreement.



     “Expiration” shall mean the expiration of the Term of the Agreement. For the avoidance of
doubt, “Expiration” does not include a termination of the Agreement under Section 13.1, Section
13.2 or Section 13.3. (“Expire” and “Expired” shall have correlative meanings.)



     “Fixed-Price Service” shall mean a Service the Price for which is a fixed amount, other than a
fixed rate; provided that the Price for a Fixed-Price Service may adjust from time to time as
provided in this Agreement.



     “Governmental Authority” shall mean any federal, state, municipal, local, territorial, or
foreign government or any governmental department, commission, court, judicial body,
instrumentality, board, bureau, agency, registry, regulatory authority or body or airport authority
(including private airport authorities or any similar authority or governing board in any domestic
or foreign jurisdiction, or any private or quasi-governmental entity, governing board or other
Person with authority to lease, convey or otherwise grant or restrict rights to use or operate any
airport facilities).



     “Ground Handling Agreement” shall mean that certain Master Ground Handling Agreement dated as
of , 2011, by and between American and Eagle and Executive Airlines, Inc.



     “Indemnification Claim” shall mean a claim or demand of a Party, on its behalf or on behalf of
one or more of its Indemnified Agents, for indemnification under Section 14.3.



     “Indemnification Claim Notice” shall mean a Notice from the Indemnified Party describing an
Indemnification Claim and the amount or the estimated amount of that Indemnification Claim to the
extent then feasible (though that estimate shall not be determinative of the final amount of that
Indemnification Claim).



     “Indemnification Response Period” shall mean the thirty (30) days after an Indemnification
Claim Notice is given during which the Indemnifying Party may investigate and determine its
responsibility or liability for an Indemnification Claim and, if relating to a Third-Party Claim,
Notify the Indemnified Party of the Indemnifying Party’s election to defend that Third-Party Claim.



3









 





     “Indemnified Agents” shall mean collectively, the officers, directors, employees, and agents
of a Party.



     “Indemnified Party” shall mean a Party entitled to, or seeking, indemnification, on its own
behalf or on behalf of one or more of its Indemnified Agents, under Section 14.3.



     “Indemnifying Party” shall mean a Party that has or is alleged to have an obligation to
indemnify the other Party in response to an Indemnification Claim.



     “Insolvency Event” shall have the meaning given to such term in Section 13.2(a).



     “Legal Staff” shall mean legal personnel that American employs or otherwise engages.



     “Level” shall mean the scope, timeliness, or quantity of a Service or Task or the location,
intensity, or frequency at or with which a Service or Task is or is to be rendered.



     “Major Carrier” shall mean a U.S. or foreign air carrier or its Affiliates (other than
American or its Affiliates), the consolidated annual revenues of which are in excess of $***** as
reflected on its audited financial statements for its most recently completed fiscal year.



     “Material Breach” shall have the meaning given to such term in Section 13.2(b).



     “Migration Period” shall have the meaning given to such term in Section 13.4.



     “Nonconforming Service” shall mean a Service or Task that, as agreed by the Parties or
otherwise determined by the Dispute Resolution Procedure, was or is Deficient.



     “Notice” shall mean a written notice, direction or instruction complying with Section 18.1.
(“Notify” has the correlative meaning.)



     “Parties” shall mean collectively, American and Eagle. (“Party” means either American or
Eagle.)



     “Person” shall mean an individual, partnership, limited liability company, corporation, joint
stock company, trust, estate, joint venture, association or unincorporated organization, or any
other form of business or professional entity.



     “Price” shall mean the amount or rate, in either case whether fixed or variable and however
measured, charged to Eagle for a Service, as provided in this Agreement.



     “Proceedings” shall mean any action, suit, claim, investigation, demand, audit, or other
proceedings by or before any Governmental Authority or any arbitration proceedings.





 




			
	*	 	THE COMPANY HAS REQUESTED AN ORDER FROM THE SECURITIES
AND EXCHANGE COMMISSION (THE “COMMISSION”) PURSUANT TO RULE 24B-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, GRANTING CONFIDENTIAL TREATMENT TO
SELECTED PORTIONS. ACCORDINGLY, THE CONFIDENTIAL PORTIONS HAVE BEEN OMITTED
FROM THIS EXHIBIT, AND HAVE BEEN FILED SEPARATELY WITH THE COMMISSION. OMITTED
PORTIONS ARE INDICATED IN THIS EXHIBIT WITH “*****”.




4









 










     “Reasonable Efforts” shall mean the efforts of a Party that are commercially reasonable under
the circumstances, which do not require a Party to institute or prosecute any Proceedings or to pay
any Person other than that Party’s representatives or agents, including (only as to American)
Subcontractors.



     “Representatives” shall mean collectively, American’s Representative and Eagle’s
Representative.



     “Schedule” shall mean a Schedule to the Agreement that describes a Service, the Price for that
Service, the basis of the Price for that Service, the minimum Notice required before discontinuance
and its Service-Specific Termination Date.



     “Separation and Distribution Agreement” shall mean that certain Separation and Distribution
Agreement between AMR and Eagle Holding to be effective on or about the Effective Date.



     “Service” shall mean an individual service, to be rendered by American under the Agreement, as
described in a Schedule. Each Schedule represents a separate Service. For purposes of this
Agreement, Eagle’s license to use American’s premises as described in Schedule T and Schedule RR
will be considered Services.



     “Service-Specific Termination Date” shall mean the date upon which a particular Service
terminates as specified in the applicable Schedule. If no Service-Specific Termination Date is
provided for a Service in its Schedule, the Service will be provided during the Term.



     “Service Subcontract” shall mean an agreement or arrangement, oral or written, under which a
Subcontractor is to render or perform any Service or Task on American’s behalf or in American’s
stead.



     “Subcontract” shall mean American’s entering into a Service Subcontract. (“Subcontracted” and
“Subcontracting” shall have correlative meanings.)



     “Subcontract Termination Penalty” shall mean *****.



     “Subcontractor” shall mean a Person, other than an employee of American, who or which enters
into a Service Subcontract with American.



     “Task” shall mean any one of the group of processes, procedures, or services that is described
in a Schedule as constituting, or included in, a Service.



     “Tax” or “Taxes” means all forms of taxation imposed by a Governmental Entity, whenever
created or imposed, and whether of the United States or elsewhere, and whether imposed by a local,
municipal, governmental, state, federation, or other body, and without limiting the generality of
the foregoing, shall include income, sales, use, ad valorem, gross





 




			
	*	 	THE COMPANY HAS REQUESTED AN ORDER FROM THE SECURITIES
AND EXCHANGE COMMISSION (THE “COMMISSION”) PURSUANT TO RULE 24B-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, GRANTING CONFIDENTIAL TREATMENT TO
SELECTED PORTIONS. ACCORDINGLY, THE CONFIDENTIAL PORTIONS HAVE BEEN OMITTED
FROM THIS EXHIBIT, AND HAVE BEEN FILED SEPARATELY WITH THE COMMISSION. OMITTED
PORTIONS ARE INDICATED IN THIS EXHIBIT WITH “*****”.




5









 









receipts, value added, franchise, transfer, recording, withholding, payroll, employment,
excise, occupation, premium, and property taxes, together with any related interest, penalties, and
additions to tax, or additional amounts, imposed by any Governmental Entity (domestic or foreign).




     “Term” shall have the meaning given to such term in Section 2.1.



     “Termination Date” shall mean the date on which the Agreement is terminated in accordance with
Section 13.1, Section 13.2 or Section 13.3.



     “Third-Party Claim” shall mean a claim of liability asserted against either Party by a Person
other than the other Party or either Party’s Indemnified Agents.



     “Use-Based Service” shall mean either (i) a Service the Price for which is variable; or (ii) a
Service the Price for which is a fixed rate, but the amount due for that Service is determined by
or based upon, at least in part, the extent of the actual use of American’s personnel or other
assets.



ARTICLE 2

TERM




     Section 2.1 Term. This Agreement commences on the Effective Date and will continue in effect until 11:59
p.m. CST on the day immediately preceding the second (2nd) anniversary of the Effective
Date, unless extended in accordance with Section 2.2 or terminated earlier by one or both of the
Parties in accordance with Section 13.1, Section 13.2 or Section 13.3 (the “Term”).



     Section 2.2 Extension. The Term or any Service-Specific Termination Date may be extended only by the
mutual written agreement of the Parties.



ARTICLE 3

SERVICES




     Section 3.1 Services. American shall render, and Eagle shall pay for, each Service until its
Service-Specific Termination Date, unless the Service is earlier discontinued pursuant to Section
4.2 or Section 4.4 or the Agreement is earlier terminated. Neither Party may unilaterally modify
any Service from the terms set forth on the applicable Schedule or separate any one or more of the
Tasks that constitute a Service.



     Section 3.2 Service Level. American shall provide substantially the same Level of each Service, and each
Task, as it provided to Eagle or Eagle’s Affiliates on the Effective Date; provided that
the Level of any Service may be changed by the mutual written agreement of the Parties.



     Section 3.3 Recipients of Services. The Services shall be rendered solely to, or for the direct benefit
of, Eagle and Eagle’s Affiliates. Neither Eagle nor any Eagle Affiliate may assign, license, or
otherwise transfer or provide, whether for or without consideration, any right to any Service, in
whole or in part, to any Person other than Eagle or an Eagle Affiliate. Eagle or



6









 




an Eagle Affiliate may, however, provide any other Person (whether for or without
consideration) any product or information of Eagle or any Eagle Affiliate resulting or derived from
any Service or Task, to the extent not prohibited by ARTICLE 9. Eagle and each Eagle Affiliate
shall afford access to their respective premises as necessary or reasonably appropriate to permit a
Service or Task to be rendered.




     Section 3.4 Scope of Services. It is the intent of the Parties that each Service is transitionary in
nature and that the Level of each Service should decrease, rather than increase, during the Term.
Accordingly, American will only be required to provide each Service for the business and assets,
and to the extent of the business and assets, as carried out and owned by Eagle and Eagle
Affiliates on the Effective Date. In no event will American have any obligation to provide any
Service for entities or their operations that are merged with, acquired by, or that directly or
indirectly acquire Eagle or any Eagle Affiliate following the Effective Date.



     Section 3.5 Change of Control. If a Change of Control shall have occurred involving a Major Carrier or
any Person directly or indirectly controlling a Major Carrier, Eagle and American shall negotiate
in good faith to amend the pricing in this Agreement to reflect the greater of (i) *****, or (ii)
*****. If the Parties are not able to mutually agree on amended pricing, either Party may request
that they attempt to resolve the pricing pursuant to Section 16.1(b); provided that the
failure of the Parties to resolve such pricing within thirty (30) days after referral to the Senior Vice
President of Marketing and Planning of American and the Chief Executive Officer of Eagle shall not
be considered a breach of this Agreement, but shall only entitle American to terminate this
Agreement upon ***** Notice to Eagle.



     Section 3.6 Subcontracting Services. American has Subcontracted certain of the Services, in whole or in
part, before the Effective Date. Additionally, American may, without any Consent of Eagle, (i)
Subcontract any Service, in whole or in part, to any Person, including any Affiliate of American,
(ii) amend any Service Subcontract, or (iii) cease to Subcontract any Service, in whole or in part.
American shall remain responsible for the rendering to Eagle of any Service that is Subcontracted,
in whole or in part. In the event that American intends to Subcontract any Service or amend any
Service Subcontract, and such new Subcontract or amendment would result in Eagle being potentially
responsible for any new material Subcontract terms different from those under the previous or
un-amended Subcontract, including but not limited to an increased Subcontract Termination Penalty,
then such fact will be discussed between the Parties. American will use its Reasonable Efforts to
notify Eagle of such fact one hundred twenty (120) days prior to the effectiveness of such
Subcontract or amendment to enable Eagle the opportunity to discontinue the applicable Service
before the effectiveness of such Subcontract according to Section 4.1.



     Section 3.7 Information Regarding Services. Each Party shall make available to the other Party any
information required or reasonably requested by that other Party regarding the performance of any
Service and shall be responsible for timely providing that information and for the accuracy and
completeness of that information. Notwithstanding the foregoing, a Party





 




			
	*	 	THE COMPANY HAS REQUESTED AN ORDER FROM THE SECURITIES
AND EXCHANGE COMMISSION (THE “COMMISSION”) PURSUANT TO RULE 24B-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, GRANTING CONFIDENTIAL TREATMENT TO
SELECTED PORTIONS. ACCORDINGLY, THE CONFIDENTIAL PORTIONS HAVE BEEN OMITTED
FROM THIS EXHIBIT, AND HAVE BEEN FILED SEPARATELY WITH THE COMMISSION. OMITTED
PORTIONS ARE INDICATED IN THIS EXHIBIT WITH “*****”.




7









 









shall have no obligation to provide any information that is subject to a confidentiality
obligation owed by it to a Person other than an Affiliate of it or the other Party. In no event
shall American have any liability for any Deficiency caused by Eagle’s failure to provide timely,
accurate and complete information that is required or reasonably requested regarding that Service.




     Section 3.8 Legal Services. The Services described in any of the Schedules as “legal services” consist of
American making the Legal Staff available for engagement by Eagle and Eagle Affiliates for the
specific legal matters identified in such Schedules. Notwithstanding anything herein to the
contrary, the engagement, services, or withdrawal of any of the Legal Staff regarding a particular
legal matter for Eagle or any of the Eagle Affiliates, as well as certain of the Prices for those
legal services, are governed by and subject to the Legal Staff’s professional or ethical
obligations.



     Section 3.9 Headquarters. With respect to Eagle’s licensed use of American’s real estate as described on
Schedule T (HDQ License and Maintenance & Overhead) and Schedule RR (System Operations Control
(SOC) and Business Resumption Control Center (BRCC) License and Maintenance & Overhead), the
additional terms and conditions included in Appendix T-1 and Appendix RR-1 shall apply,
respectively.



     Section 3.10 Warranty Disclaimer. AMERICAN MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
REGARDING ANY SERVICE OR TASK OTHER THAN AS STATED IN THIS AGREEMENT. AMERICAN SPECIFICALLY
DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, REGARDING THE SERVICES AND TASKS.



ARTICLE 4

DISCONTINUANCE OF SERVICES




     Section 4.1 Potential Discontinuance. In the event Eagle contemplates discontinuing a Service, Eagle may give
American Notice of such potential discontinuance. Following delivery of such Notice, the Parties
shall promptly meet and confer (such meeting may be pursuant to Section 16.3) to discuss potential
risks, costs and expenses expected to be incurred by the Parties as a result of the discontinued
Service(s), including any Subcontract Termination Penalty. The Parties shall then (a) use
Reasonable Efforts to mutually develop a transition plan to manage and mitigate such risks, costs
and expenses, and (b) use commercially Reasonable Efforts to implement any such mutually-developed
plan. Any such plan shall take into account the needs and capabilities of each Party, the impact
on customers and employees, and the cost to each of the Parties. Notwithstanding the development
of a plan as provided above, a Service will not be discontinued until Notice of discontinuance is
given as provided in Section 4.2 or Section 4.4.



8









 





     Section 4.2 Procedure. Eagle may discontinue or terminate any Service by giving American prior Notice of
not less than the minimum Notice provided on the applicable Schedule, and if no such minimum Notice
period is provided, not less than thirty (30) days. It is understood and agreed that only an
entire Service may be discontinued, and that none of the Tasks that constitute a Service may be
separately discontinued without the Parties’ Consent. Any Service that is the subject of a Notice
of discontinuance shall continue to be rendered by American until the effective date of the
discontinuance, and Eagle shall pay for that Service rendered until that date. Once given, Eagle
may not rescind its Notice of discontinuance without American’s Consent.



     Section 4.3 Service Level and Price of Discontinued Services. Until the date of its discontinuance, a
Service that is the subject of a Notice of discontinuance shall be rendered at the same Level and
for the same Price as if Notice of discontinuance had not been given.



     Section 4.4 Impossible Services. If American reasonably determines that the discontinuance of any Service
would make it functionally impossible to continue any other Service, in whole or in part, American
shall promptly Notify Eagle of that determination. If such Notice was the result of Eagle’s
discontinuance of a Service or part of a Service under Section 4.2, and Eagle determines that it
requires such functionally impossible Service to continue and desires to revoke its Notice of
discontinuance, then Eagle shall promptly Notify American and the Parties will work in good faith,
at Eagle’s expense, to mitigate the impact of such impossibility or, if possible, reinstate such
discontinued Service or part thereof.



     Section 4.5 Discontinued Service Assistance. For up to ***** after the earlier of
(i) the effective date of discontinuance of a Service under Section 4.1 or Section 4.4, (ii)
Expiration or (iii) termination of this Agreement by Eagle under Section 13.2(b), American shall
comply with Eagle’s reasonable requests for assistance in Eagle’s engaging or training another
Person or Persons to provide, and for records and other information relating to, that discontinued
Service. Eagle shall pay for American’s compliance with those requests by



     (a) reimbursing American for all of its resulting reasonable out-of-pocket expenses, and



     (b) paying American for the resulting time or activities of American’s personnel as follows:




     (i) if the activities of those personnel are or were part of a Use-Based
Service, then at the Price then in effect, or most recently paid (if that
Service has been discontinued), for that Use-Based Service, or




     (ii) if the activities of those personnel were not part of a Use-Based
Service, then at a reasonable hourly rate as determined by American in its
sole discretion.



     Invoicing and payment for such discontinued service assistance shall be in accordance with
ARTICLE 7.




 




			
	*	 	THE COMPANY HAS REQUESTED AN ORDER FROM THE SECURITIES
AND EXCHANGE COMMISSION (THE “COMMISSION”) PURSUANT TO RULE 24B-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, GRANTING CONFIDENTIAL TREATMENT TO
SELECTED PORTIONS. ACCORDINGLY, THE CONFIDENTIAL PORTIONS HAVE BEEN OMITTED
FROM THIS EXHIBIT, AND HAVE BEEN FILED SEPARATELY WITH THE COMMISSION. OMITTED
PORTIONS ARE INDICATED IN THIS EXHIBIT WITH “*****”.




9









 





     Section 4.6 Reinstatement of Discontinued Service. A Service that has been discontinued under this
Agreement may only be reinstated by the mutual written agreement of American and Eagle.



ARTICLE 5

SERVICES OBTAINED FROM OTHERS




     Section 5.1 Upon Discontinuance. Eagle need not obtain American’s Consent to perform itself or obtain
from any other Person, upon and after the discontinuance of any Service, any service or services
that substitute for the Service that has been discontinued.



     Section 5.2 Before Discontinuance. Eagle need not obtain American’s Consent to perform itself or obtain from
any other Person any service or services to supplement or substitute for all or any portion of a
Service, so long as Eagle continues to pay for the Service in accordance with this Agreement,
including the corresponding Schedule.



ARTICLE 6

PRICES




     Section 6.1 Pricing. The Price payable by Eagle for each Service is provided in the applicable Schedule and
this ARTICLE 6.



     Section 6.2 Price Increases. In the event that American’s costs or expenses for performing any of the
Services increase during the Term, including increases in third party costs for products and
services, American may increase the Prices for such Services to reflect American’s actual costs and
expenses to provide the Services upon no less than thirty (30) days’ prior Notice to Eagle.



ARTICLE 7

PAYMENT




     Section 7.1 Invoices. American shall submit to Eagle monthly one or more invoices for the Services. Each
invoice shall indicate:




     (a) the amount charged for each Service covered by that invoice;




     (b) if the Service is a Use-Based Service, the calculation of the invoiced amount or
the basis on which that amount was determined; and




     (c) if that invoice includes any credit or offset for Eagle, the amount and purpose of
that credit or offset.


Each invoice should also indicate the sales, use, or similar taxes being collected on each Service,
or part of a Service, that American believes to be so taxable. An invoice may cover more than one
Service.




10









 








     Section 7.2 Payment. Other than amounts subject to a good faith Dispute, Eagle shall pay the amount of
each invoice within ***** after the date of that invoice.



     Section 7.3 Method of Payment. Eagle shall pay American by electronic transfer of funds to a bank account
designated by American. All payments shall be made in United States currency.



ARTICLE 8

RECORDS




     Section 8.1 Record Keeping.  Each Party shall create and maintain accurate books and records regarding
the Services rendered and the amounts charged and paid or received under this Agreement.
American’s records shall include information regarding the determination of amounts charged or
invoiced to Eagle for Use-based Services.


Each Party shall create and maintain those records with the same degree of completeness and care as
it maintains its other similar business records. Each Party shall maintain those records for the
time or times required by applicable law or regulation, except that a Party shall, upon request of
the other Party, maintain any of those records for a longer time if the requesting Party pays the
additional expenses incurred in complying with that request.




     Section 8.2 Examination. Each Party shall be entitled to examine, through its authorized representatives
or agents and at its own expense, the records that the other Party is required to maintain under
this Agreement. Unless otherwise required by a Governmental Authority, this examination right may
be exercised only by three Business Days’ prior Notice to the other Party, and the examination may
be made only during the other Party’s normal business hours or at any other reasonable time or
times to which the other Party may consent. An examination shall be performed in a manner that
does not unreasonably disrupt the other Party’s normal business operations. This examination right
will continue:




     (a) for two years after Expiration or the Termination Date of this Agreement; and




     (b) thereafter, as long as necessary to enable a Party to respond to any Third-Party
Claim or to a request or order issued by a court or another Governmental Authority.


The Party conducting an examination may make and take away copies of any or all of the other
Party’s records being examined.






 




			
	*	 	THE COMPANY HAS REQUESTED AN ORDER FROM THE SECURITIES
AND EXCHANGE COMMISSION (THE “COMMISSION”) PURSUANT TO RULE 24B-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, GRANTING CONFIDENTIAL TREATMENT TO
SELECTED PORTIONS. ACCORDINGLY, THE CONFIDENTIAL PORTIONS HAVE BEEN OMITTED
FROM THIS EXHIBIT, AND HAVE BEEN FILED SEPARATELY WITH THE COMMISSION. OMITTED
PORTIONS ARE INDICATED IN THIS EXHIBIT WITH “*****”.




11









 










ARTICLE 9

CONFIDENTIAL INFORMATION




     Section 9.1 Confidential Information. Except as required by any law, rule or regulation of a Governmental
Authority, stock exchange listing requirement, or in any proceeding to enforce the provisions of
this Agreement, American and Eagle hereby agree not to publicize or disclose to any third party any
Confidential Information, the terms or conditions of this Agreement, any Ancillary Agreement or any
exhibit, schedule or appendix hereto or thereto, without the prior Consent of the other Party,
except that a Party may disclose such information to its third party consultants, advisors and
representatives, in each case, that have agreed to keep such information confidential; it being
understood that American or Eagle, as the case may be, shall be responsible for any such third
party. Except as required by any law, rule or regulation of a Governmental Authority, stock
exchange listing requirement, or in any proceeding to enforce the provisions of this Agreement or
any Ancillary Agreement, American and Eagle hereby agree (x) not to disclose to any third party any
Confidential Information without the prior Consent of the Party providing such Confidential
Information except that a Party may disclose such information to its third party consultants,
advisors and representatives, in each case, that have agreed to keep such Confidential Information
confidential, and (y) not to use any such Confidential Information of the other Party other than in
connection with performing their respective duties and obligations or enforcing their respective
rights and privileges under this Agreement, or as otherwise expressly contemplated by this
Agreement. If any Party is served with a subpoena or other process requiring the production or
disclosure of any Confidential Information, then the Party receiving such subpoena or other
process, before complying with such subpoena or other process, shall promptly provide Notice to the
other Party of same and permit said other Party a reasonable period of time to intervene and
contest disclosure or production, but only to the extent such Party is able to do so and still
comply with any law, rule or regulation of a Governmental Authority or any stock exchange listing
requirement. Upon any Expiration or termination of this Agreement, each Party must, at the written
request of the other Party, return or destroy Confidential Information received from the other
Party which is still in the recipient’s possession or control and certify its compliance with such
written request; provided, that (i) the recipient’s legal counsel may retain a single archival copy
of such information only for evidentiary purposes, and (ii) the recipient shall not be required to
delete information from back-up or archival electronic storage; provided further, that such
retained Confidential Information shall continue to be held confidential pursuant to the terms
hereof. This Section 9.1 shall survive the Expiration or termination of this Agreement for a
period of ten (10) years; provided, that personally identifiable information shall remain subject
to this Section 9.1 in perpetuity.



     Section 9.2 HIPAA — Business Associate Agreement. Throughout the Term of this Agreement and for such
additional time as may be required by law, rule or regulation of a Governmental Authority, American
and Eagle shall maintain in force a Business Associate Agreement as provided in the Separation and
Distribution Agreement, or similar agreement, as necessary to enable the Parties to comply with the
Health Insurance Portability and Accountability Act and the Health Information Technology for
Economic and Clinical Health Act and their applicable regulations.



12









 





ARTICLE 10

PARTIES’ RELATIONSHIP




     Section 10.1 Eagle Employees. Any Eagle employees, any Eagle Affiliate employees and any Eagle agents are
employees, agents, and independent contractors of Eagle for all purposes, and under no
circumstances will be deemed to be employees, agents or independent contractors of American. In
its performance under this Agreement, Eagle shall act, for all purposes, as an independent
contractor and not as an agent for American. American shall have no supervisory power or control
over any Eagle employees or any Eagle agents engaged by Eagle in connection with its performance
hereunder, and all complaints or requested changes in procedures made by American shall, in all
events, be transmitted by American to Eagle’s Representative. Nothing contained in this Agreement
is intended to limit or condition Eagle’s control over its operations or the conduct of its
business as an air carrier.



     Section 10.2 American Employees. Any American employees and any American agents engaged in performing any
of the acts American performs pursuant to this Agreement are employees, agents and independent
contractors of American for all purposes and under no circumstances will be deemed to be employees,
agents or independent contractors of Eagle. Eagle shall have no supervision or control over any
such American employees or any American agents and any complaint or requested change in procedure
made by Eagle shall be transmitted by Eagle to American’s Representative. In its performance under
this Agreement, American shall act, for all purposes, as an independent contractor and not as an
agent for Eagle. Nothing contained in this Agreement is intended to limit or condition American’s
control over its operations or the conduct of its business as an air carrier.



     Section 10.3 Limits on Relationship. Nothing in this Agreement shall be interpreted or construed as
establishing between the Parties a fiduciary relationship, partnership, joint venture or other
similar arrangement. Nothing in this Agreement authorizes either Party to make any contract,
agreement, warranty, or representation on the other’s behalf, or to incur any debt or obligation in
the other’s name.



     Section 10.4 Third-Party Consents. Each Party shall be responsible for obtaining and maintaining any
licenses, permits, consents, or approvals of Governmental Authorities and any other Persons
necessary or appropriate for it to perform its obligations under this Agreement.



ARTICLE 11

REPRESENTATIONS AND WARRANTIES




     Section 11.1 Eagle Representations and Warranties. Eagle represents and warrants to American as of the
date hereof as follows:



     (a) Organization and Qualification. Eagle is a duly organized and validly existing
corporation in good standing under the laws of the State of Delaware and has the corporate power
and authority to own, operate and use its assets and receive the Services.



13









 





     (b) Authority Relative to this Agreement. Eagle has the corporate power and authority to
execute and deliver this Agreement and to consummate the transactions contemplated hereby in
accordance with the terms hereof. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Eagle. This Agreement has been duly and validly executed and
delivered by Eagle and is, assuming due execution and delivery thereof by American and that
American has legal power and right to enter into this Agreement, a valid and binding obligation of
Eagle, enforceable against Eagle in accordance with its terms, except as enforcement hereof may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws, rules or regulations of a Governmental Authority relating to or affecting the
enforcement of creditors’ rights generally and legal principles of general applicability governing
the availability of equitable remedies (whether considered in a proceeding in equity or at law or
otherwise under applicable laws, rules or regulations of a Governmental Authority).



     (c) Conflicts; Defaults. Neither the execution or delivery of this Agreement nor the
performance by Eagle of the transactions contemplated hereby will (i) violate, conflict with, or
constitute a default under any of the terms of Eagle’s certificate of incorporation, by-laws, or
any provision of, or result in the acceleration of any obligation under, any material contract,
sales commitment, license, purchase order, security agreement, mortgage, note, deed, lien, lease or
other agreement to which Eagle is a party; (ii) result in the creation or imposition of liens in
favor of any third person or entity; (iii) violate any law, statute, judgment, decree, order, rule
or regulation of any Governmental Authority; or (iv) constitute any event which, after notice or
lapse of time or both, would result in such violation, conflict, default, acceleration or creation
or imposition of liens.



     (d) Approvals. Eagle possesses all approvals, certificates, licenses, permits or other
authorizations of any Governmental Authority that are necessary or appropriate to execute and
deliver this Agreement and to perform its obligations hereunder.



     Section 11.2 American Representations and Warranties. American represents and warrants to Eagle as of the
date hereof as follows:



     (a) Organization and Qualification. American is a duly incorporated and validly existing
corporation in good standing under the laws of the State of Delaware.



     (b) Authority Relative to this Agreement. American has the corporate power and authority to
execute and deliver this Agreement and to consummate the transactions contemplated hereby in
accordance with the terms hereof. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of American. This Agreement has been duly and validly executed and
delivered by American and is, assuming due execution and delivery thereof by Eagle and that Eagle
has legal power and right to enter into this Agreement, a valid and binding obligation of American,
enforceable against American in accordance with its terms, except as enforcement hereof may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws, rules or regulations of a Governmental Authority relating to or affecting the
enforcement of creditors’ rights generally



14









 




and legal principles of general applicability governing the availability of equitable remedies
(whether considered in a proceeding in equity or at law or otherwise under applicable laws, rules
or regulations of a Governmental Authority).




     (c) Conflicts; Defaults. Neither the execution or delivery of this Agreement nor the
performance by American of the transactions contemplated hereby will (i) violate, conflict with, or
constitute a default under any of the terms of American’s certificate of incorporation, by-laws, or
any provision of, or result in the acceleration of any obligation under, any material contract,
sales commitment, license, purchase order, security agreement, mortgage, note, deed, lien, lease or
other agreement to which American is a party; (ii) result in the creation or imposition of any
liens in favor of any third person or entity; (iii) violate any law, statute, judgment, decree,
order, rule or regulation of any Governmental Authority; or (iv) constitute any event which, after
notice or lapse of time or both, would result in such violation, conflict, default, acceleration or
creation or imposition of liens.



     (d) Approvals. American possesses all approvals, certificates, licenses, permits or other
authorizations of any Governmental Authority that are necessary or appropriate to execute and
deliver this Agreement and perform the Services and otherwise perform its obligations hereunder.



ARTICLE 12

PARTIES’ REPRESENTATIVES




     Section 12.1 Representatives’ Authority. Each Party has authorized its Representative to conduct
discussions and negotiations, make and communicate decisions, frame and pose questions or issues,
and resolve Disputes on behalf of that Party relating to this Agreement. Though one Party’s
employees or agents other than its Representative may also take actions of the kinds described in
the preceding sentence with the other Party’s employees or agents other than its Representative,
matters that require more formal discussions or negotiations between Parties shall be addressed
through and by the Representatives. Each Party and its Representative are entitled to rely on the
actions and decisions of the other Party’s Representative relating to this Agreement.



     Section 12.2 Designation. American designates its Managing Director of [______________] as American’s
Representative, and Eagle designates its Managing Director of [______________] as Eagle’s
Representative, upon and after the Effective Date until changed by the designating Party. A Party
may change its Representative by Notice to the other Party. A Party may rely on and deal with the
Person who is designated as the other Party’s Representative until any Notice of change is given by
the other Party.



ARTICLE 13

TERMINATION




     Section 13.1 Termination Without Cause. Either Party, upon Notice to the other Party, may terminate this
Agreement at any time upon or after (i) all of the Services have been discontinued pursuant to
Section 4.2 or Section 4.4 or (ii) the Separation and Distribution



15









 




Agreement is terminated, but only if the Separation and Distribution Agreement was terminated
prior to the Distribution.




     Section 13.2 Termination by Either Party. In addition to and without limiting the provisions of Section
13.1 or Section 13.3, either American, if the non-defaulting Party on the one hand, or Eagle, if
the non-defaulting Party on the other hand, shall have the right to terminate this Agreement by
providing Notice (which Notice shall specify the Termination Date, subject to the provisions of
this ARTICLE 13) to the defaulting Party or, with respect to a termination under Section 13.2(a)
below, to the Party suffering the Insolvency Event, if:




     (a) Bankruptcy. American, on the one hand, or Eagle or Eagle Holding, on the other
hand, (i) makes a general assignment for the benefit of creditors or becomes insolvent, (ii)
files a voluntary petition in bankruptcy, (iii) petitions for or acquiesces in the
appointment of any receiver, trustee or similar officer to liquidate or conserve its
business or any substantial part of its assets, (iv) commences under the laws of any
competent jurisdiction any proceeding involving its insolvency, bankruptcy, reorganization,
readjustment of debt, dissolution, liquidation or any other similar proceeding for the
relief of financially distressed debtors, (v) becomes the object of any proceeding or action
of the type described in (iii) or (iv) above and such proceeding or action remains
undismissed or unstayed for a period of at least sixty (60) days, or (vi) is involuntarily
divested of a substantial part of its assets for a period of at least sixty (60) days (each
of (i) through (vi) above an “Insolvency Event”);




     (b) Material Breach. American, on the one hand as the defaulting Party, or Eagle, on
the other hand as the defaulting Party, shall refuse, neglect or fail to perform, observe,
or keep either (i) any material non-monetary covenants, agreements, terms or conditions on
their part to be performed, observed or kept hereunder or (ii) any other covenant,
agreement, term or condition contained herein that would reasonably be expected to
substantially deprive American, on the one hand as the non-defaulting Party or Eagle, on the
other hand as the non-defaulting Party, of the benefits of this Agreement (individually and
collectively, a “Material Breach”) and any such Material Breach shall continue for a period
of sixty (60) days after Notice to cure such Material Breach to the defaulting Party
thereof. Without limiting the generality of the foregoing, a Material Breach shall also be
deemed to include any Material Breach that occurs at least ***** or more times during any
***** period even if subsequently cured; or




     (c) Monetary Breach. American, on the one hand, or Eagle, on the other hand, shall
fail to pay any amounts owing to the other Party under the terms and conditions of this
Agreement, or either Party breaches a monetary provision of this Agreement, and such
monetary default or failure remains uncured for more than ten (10) days after receipt of
Notice of such failure to pay or monetary breach.





 




			
	*	 	THE COMPANY HAS REQUESTED AN ORDER FROM THE SECURITIES
AND EXCHANGE COMMISSION (THE “COMMISSION”) PURSUANT TO RULE 24B-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, GRANTING CONFIDENTIAL TREATMENT TO
SELECTED PORTIONS. ACCORDINGLY, THE CONFIDENTIAL PORTIONS HAVE BEEN OMITTED
FROM THIS EXHIBIT, AND HAVE BEEN FILED SEPARATELY WITH THE COMMISSION. OMITTED
PORTIONS ARE INDICATED IN THIS EXHIBIT WITH “*****”.






16











 





     Section 13.3 Termination by American. In addition to and without limiting the provisions of Section 13.1 or
Section 13.2, in the event that both the Air Services Agreement and the Ground Handling Agreement
expire or terminate, American may terminate this Agreement upon thirty (30) days’ Notice to Eagle.
Further, nothing in this Agreement will restrict American from terminating this Agreement as
permitted in any of the Ancillary Agreements.



     Section 13.4 Consequences of Termination.


          (a) Upon termination of this Agreement by Eagle under Section 13.2(b):




     (i) For a period of up to ***** following the Termination Date, but not
following the date on which the Agreement was originally set to expire as
provided in Section 2.1 (the “Migration Period”), American shall continue to
render, and Eagle shall pay for, each Service reasonably requested by Eagle
until terminated or discontinued in accordance with the terms of this
Agreement. The terms of this Agreement shall continue to apply during the
Migration Period as though no termination of this Agreement had occurred.




     (ii) The Level of each Service rendered, and the Price (subject to
adjustments as permitted by this Agreement) for each Service, during the
Migration Period shall be the same as in effect immediately preceding the
Termination Date.




     (b) American shall have no obligation to provide any continued Services as described
above in this Section 13.4 or discontinued service assistance under Section 4.5 if this
Agreement is terminated by either Party under Section 13.1 or Section 13.2(a) or by American
under Section 13.2(b), Section 13.2(c) or Section 13.3.




     (c) Neither Party may unilaterally rescind a Notice of termination.



ARTICLE 14

LIABILITY AND REMEDIES




     Section 14.1 Warranties. Each Party’s representations and warranties in this Agreement are made solely to
and for the benefit of the other Party and, to the extent described in this Agreement, the Eagle
Affiliates. No Person other than a Party may make a claim based on the other Party’s warranties
under this Agreement; any claim by an Eagle Affiliate shall be made by Eagle.



     Section 14.2 Nonconforming Services. Eagle shall promptly Notify American of any Deficiency in any Service
or Task, whether rendered by American or a Subcontractor. To the extent American agrees, or it is
otherwise determined by the Dispute Resolution Procedure, that





 




			
	*	 	THE COMPANY HAS REQUESTED AN ORDER FROM THE SECURITIES
AND EXCHANGE COMMISSION (THE “COMMISSION”) PURSUANT TO RULE 24B-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, GRANTING CONFIDENTIAL TREATMENT TO
SELECTED PORTIONS. ACCORDINGLY, THE CONFIDENTIAL PORTIONS HAVE BEEN OMITTED
FROM THIS EXHIBIT, AND HAVE BEEN FILED SEPARATELY WITH THE COMMISSION. OMITTED
PORTIONS ARE INDICATED IN THIS EXHIBIT WITH “*****”.




17









 










a Service or Task was or is a Nonconforming Service, American shall use its Reasonable Efforts
promptly to cure or correct, or cause its Subcontractor to cure or correct, the Deficiency to the
extent it may then be cured or corrected.





     (a) If the Deficiency was the result of American’s negligence, American shall not be
responsible or liable for any resulting damages of Eagle.




     (b) If the Deficiency was the result of American’s gross negligence (including
recklessness) or willful misconduct, American shall be responsible or liable for Eagle’s
resulting damages in an amount up to:




     (i) if American’s liability is determined (by the Parties’ agreement or
the Dispute Resolution Procedure) after the calendar year in which the
Deficiency occurred, the aggregate amount received by American for the
Nonconforming Service for the calendar year in which the Deficiency occurred;




     (ii) if American’s liability is determined during the calendar year in
which the Deficiency occurred and the Nonconforming Service is a Fixed-Price
Service, the annual Price for the Nonconforming Service for that calendar
year; or




     (iii) if American’s liability is determined during the calendar year in
which the Deficiency occurred and the Nonconforming Service is a Use-based
Service, the aggregate amount received by American for the Non-conforming
Service to the date the liability is determined in that calendar year.



The annual limit on American’s liability described above in this Section 14.2(b) is not cumulative
from year to year. If there is more than one Deficiency in a single Service for which American is
responsible or liable for damages and American’s liability for those Deficiencies is determined in
the same calendar year, American’s responsibility or liability for damages resulting from all of
those Deficiencies shall be subject to the applicable annual limit on liability described above in
this Section 14.2(b).





     (c) If the Deficiency was the result of a Subcontractor’s negligence, gross negligence
(including recklessness) or willful misconduct, and American has not independently decided
to pursue the Subcontractor, American shall cooperate with Eagle and, at Eagle’s sole cost
and expense, take such commercially reasonable action against the Subcontractor that Eagle
may reasonably request to have such Subcontractor remedy the Deficiency and/or compensate
Eagle for damages of Eagle caused by the Deficiency. In the event American recovers damages
from the Subcontractor for such Deficiency, then American shall provide Eagle the net
recovery (after first deducting for American’s costs and expenses in obtaining such recovery
that have not already been paid by Eagle). Eagle acknowledges that the amount American may
recover from such Subcontractor may not be solely for Eagle’s damages and, in such event,
American and Eagle will work in good faith to equitably allocate the recovery between
American and Eagle.



18









 





     Section 14.3 Indemnities for Certain Breaches and Other Matters. The following shall apply to any breach
of, and certain other damages relating to, this Agreement, other than a Deficiency for which
American has no liability for damages under Section 14.2(a), or a nonpayment by Eagle of any amount
relating to an invoice:




     (a) Subject to the limits on liability described in Section 14.2(b), and further
subject to the indemnities provided in Section 14.3(b) and Section 14.3(c) (which
indemnities will control over those provided in this Section 14.3(a)) each Party shall
indemnify the other Party against all damages of the Indemnified Party, or any of its
Indemnified Agents, resulting from or relating to any breach of this Agreement, including a
breach of any warranty in this Agreement, by the Indemnifying Party.




     (b) Eagle shall indemnify American against all damages of American or any of its
Indemnified Agents, including any ***** resulting from:




     (i) any violation by Eagle or an Eagle Affiliate of any obligation
imposed on it under that Service Subcontract;




     (ii) the actions or omissions of Eagle’s or an Eagle Affiliate’s
employees or agents under or in connection with that Service Subcontract;




     (iii) Eagle’s discontinuance of any Service that American renders, in
whole or in part, by that Service Subcontract, even if permitted by ARTICLE 4;
provided that Eagle’s liability related to this sub-section will be limited to
*****




     (iv) Eagle or an Eagle Affiliate performing itself or obtaining from any
Person other than American or its Subcontractor any service or services to
supplement or substitute for any Service that American renders, in whole or in
part, by that Service Subcontract, even if permitted by Section 5.1 and
Section 5.2; provided that Eagle’s liability related to this sub-section will
be limited to *****




     (v) the termination (not the Expiration) of this Agreement other than a
termination by Eagle under Section 13.2(a) or Section 13.2(b).




     (c) Eagle shall also indemnify American against all damages of American or any of its
Indemnified Agents resulting from or relating to:




     (i) any Third-Party Claim arising out of or related to the Services;



 




			
	*	 	THE COMPANY HAS REQUESTED AN ORDER FROM THE SECURITIES AND EXCHANGE COMMISSION (THE
“COMMISSION”) PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, GRANTING
CONFIDENTIAL TREATMENT TO SELECTED PORTIONS. ACCORDINGLY, THE CONFIDENTIAL PORTIONS HAVE BEEN
OMITTED FROM THIS EXHIBIT, AND HAVE BEEN FILED SEPARATELY WITH THE COMMISSION. OMITTED PORTIONS ARE
INDICATED IN THIS EXHIBIT WITH “*****”.



19









 






     (ii) the actions or omissions of any of the Legal Staff that are directed
by Eagle or any Eagle Affiliate within the scope of that lawyer’s or
paralegal’s engagement for any legal matter of Eagle or any Eagle Affiliate;
or




     (iii) any sales, use, or similar taxes (however described) applicable to
any of the Services, in whole or in part, that are assessed or levied against
or paid by American.




     (d) The indemnification obligations in Section 14.3(a), Section 14.3(b) and Section
14.3(c) shall be extinguished to the extent that the damages of the Indemnified Party, or
any of its Indemnified Agents for whom or which the Indemnified Party is seeking
indemnification, were caused by the gross negligence (including recklessness) or willful
misconduct of the Person for whom or which indemnification is sought. THE INDEMNIFICATION
PROVISIONS IN Section 14.3(a), Section 14.3(b) AND Section 14.3(c) EXPRESS THE PARTIES’
INTENT THAT A PERSON BE INDEMNIFIED AGAINST ITS OWN ORDINARY NEGLIGENCE, OR THE RESULTS OF
THAT ORDINARY NEGLIGENCE, UNDER THIS AGREEMENT.




     (e) If an Indemnification Claim is not based on a Third-Party Claim, the Indemnified
Party shall give an Indemnification Claim Notice promptly after the event constituting the
basis or the Indemnification Claim; its failure to do so, however, shall relieve the
Indemnifying Party of its indemnification obligations only to the extent the Indemnifying
Party is actually prejudiced by that failure. If the Indemnified Party gives an
Indemnification Claim Notice regarding an Indemnification Claim not based on a Third-Party
Claim, the Indemnifying Party shall Notify the Indemnified Party within the Indemnification
Response Period whether the Indemnifying Party disputes all or any portion of the
Indemnification Claim. If the Indemnifying Party does not give that dispute Notice or
agrees to accept liability for all or a portion of the Indemnification Claim, the
Indemnification Claim, or the agreed portion of that Indemnification Claim, shall be the
Indemnifying Party’s liability. Otherwise, the Indemnification Claim shall be deemed a
Dispute to be resolved by the Dispute Resolution Procedure.




     (f) The Indemnified Party shall provide the Indemnifying Party with prompt Notice of
any Third-Party claim which the Indemnified Party believes gives rise to a claim for
indemnity against the Indemnifying Party. Notwithstanding the foregoing, the failure of an
Indemnified Party to promptly provide Notice shall not constitute a waiver by the
Indemnified Party of any right to indemnification or otherwise relieve such Indemnifying
Party from any liability hereunder unless and only to the extent that the Indemnifying Party
is materially prejudiced as a result thereof, and in any event shall not relieve such
Indemnifying Party from any liability which it may have otherwise than on account of this
ARTICLE 14. The Indemnifying Party shall be entitled, if it accepts financial
responsibility for the Third-Party Claim, to control the defense of or to settle any such
Third-Party Claim at its own expense and by its own counsel; provided, that the Indemnified
Party’s prior Consent (which may not be unreasonably withheld or delayed) must be obtained
prior to settling any such Third-Party Claim. The Indemnified Party shall provide the
Indemnifying Party with such information as the Indemnifying Party



20









 






shall reasonably request to defend any such Third-Party Claim and shall otherwise
cooperate with the Indemnifying Party in the defense of any such Third-Party Claim. If the
Indemnifying Party does not accept financial responsibility for the Third-Party Claim or
fails to defend against the Third-Party Claim that is the subject of a Notice under this
Section 14.3 within (30) thirty days of receiving such Notice (or sooner if the nature of
the Third-Party Claim so requires), or otherwise contests its obligation to indemnify the
Indemnified Party in connection therewith, the Indemnified Party may, upon providing Notice
to the Indemnifying Party, pay, compromise or defend such Third-Party Claim. In the latter
event, the Indemnified Party, by proceeding to defend itself or settle the matter, does not
waive any of its rights hereunder to later seek indemnification from the Indemnifying Party.
Except as set forth in this Section 14.3, the Indemnified Party shall not enter into any
settlement or other compromise or Consent to a judgment with respect to a Third-Party Claim
as to which the Indemnifying Party has an indemnity obligation hereunder without the prior
Consent of the Indemnifying Party (which may not be unreasonably withheld or delayed), and
the entering into of any settlement or compromise or the Consent to any judgment in
violation of the foregoing shall constitute a waiver by the Indemnified Party of its right
to indemnity hereunder to the extent the Indemnifying Party is prejudiced thereby. Any
Indemnifying Party shall be subrogated to the rights of the Indemnified Party to the extent
that the Indemnifying Party pays for any loss, damage or expense suffered by the Indemnified
Party hereunder. Notwithstanding anything contained in this Section 14.3 to the contrary,
Contractor and American shall cooperate in the defense of any claim imposed jointly against
them.



     Section 14.4 Time for Claims.




     (a) Eagle may make a claim against American for the cure or correction of any
Deficiency only within two years after the Deficiency occurred; any Deficiency shall be
deemed to have occurred when the particular Nonconforming Service was rendered.




     (b) A Party may make an Indemnification Claim:




     (i) not based on a Third-Party Claim, only within two years after the
breach or other event constituting the basis for that Indemnification Claim
occurred, even if not discovered until after that second anniversary, or




     (ii) based on a Third-Party Claim, at any time.



     Section 14.5 Right of Set-Off. If a Party hereto shall be in default pursuant to this Agreement to the other
Party, then the non-defaulting Party shall be entitled to set-off from any undisputed payment owed
by such non-defaulting Party to the defaulting Party hereunder any undisputed amount owed by the
defaulting Party to the non-defaulting Party hereunder; provided, that contemporaneously with any
such set-off, the non-defaulting Party shall give Notice of such action to the defaulting Party;
provided further, that the failure to give such Notice shall not affect the validity of the
set-off. It is specifically agreed that (i) for purposes of the set-off by any non-defaulting
Party, mutuality shall be deemed to exist between American and Eagle and (ii) the right of set-off
is given as additional security to induce the Parties to enter



21









 





into the transactions contemplated hereby and by the Ancillary Agreements. Upon completion of any
such set-off, the obligation of the defaulting Party to the non-defaulting Party shall be
extinguished to the extent of the amount so set-off. This set-off provision shall be without
prejudice and in addition to any right of set-off, combination of accounts, lien or other right to
which any non-defaulting Party is at any time otherwise entitled (either by operation of law,
contract or otherwise).




     Section 14.6 Punitive Damages. EXCEPT TO THE EXTENT A PARTY MAY BE REQUIRED TO PAY IN CONNECTION WITH A
CLAIM FOR INDEMNIFICATION UNDER Section 14.3(b) OR Section 14.3(c), NEITHER PARTY TO THIS AGREEMENT
NOR ANY OF ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ANY OF ITS AFFILIATES FOR CLAIMS
FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOST
REVENUES, LOST PROFITS OR LOST PROSPECTIVE ECONOMIC ADVANTAGE, ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, REGARDLESS OF WHETHER A CLAIM IS BASED ON
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF ANY APPLICABLE DECEPTIVE
TRADE PRACTICES ACT OR SIMILAR LAW, RULE OR REGULATION OF A GOVERNMENTAL AUTHORITY OR ANY OTHER
LEGAL OR EQUITABLE PRINCIPLE, AND EACH PARTY RELEASES THE OTHER AND ITS AFFILIATES FROM LIABILITY
FOR ANY SUCH DAMAGES. NEITHER PARTY SHALL BE ENTITLED TO RESCISSION OF THIS AGREEMENT AS A RESULT
OF BREACH OF THE OTHER PARTY’S REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS, OR FOR ANY
OTHER MATTER; PROVIDED THAT NOTHING IN THIS Section 14.6 SHALL RESTRICT THE RIGHT OF EITHER PARTY
TO EXERCISE ANY RIGHT TO TERMINATE THIS AGREEMENT PURSUANT TO ARTICLE 13.



     Section 14.7 Exclusive Remedies. Except for the termination right stated in ARTICLE 13 and the relief
described in Section 17.2(b) and in the Dispute Resolution Procedure, the remedies described in
this ARTICLE 14 are the exclusive rights and remedies of a Party regarding any breach of this
Agreement or any other matter that may be the subject of an Indemnification Claim.



     Section 14.8 Survival. The rights, remedies, and obligations under this ARTICLE 14 shall continue on and
after Expiration or the termination of this Agreement.



ARTICLE 15

FORCE MAJEURE




     Section 15.1 No Breach or Liability. No delay or failure of a Party to perform any of its obligations,
other than payment obligations, under this Agreement due to causes beyond its reasonable control
shall constitute a breach of this Agreement or render that Party liable for that delay or failure.
Causes beyond a Party’s reasonable control include:




     (a) events or circumstances that the Party, using its Reasonable Efforts, is unable to
prevent or overcome;



22









 






     (b) as to American, causes also beyond the reasonable control of the Person to whom or
which American has Subcontracted the affected Service or Task in accordance with this
Agreement; and




     (c) labor disputes, strikes, or other similar disturbances; acts of God; utilities or
communications failures; acts of the public enemy; and riots, insurrections, sabotage, or
vandalism.



     Section 15.2 Notice of Excusable Delay or Failure. If a Party anticipates any excusable delay or failure
under Section 15.1, it shall promptly Notify the other Party of the anticipated delay or failure,
the anticipated effect of that delay or failure, and any actions that are being or are to be taken
to alleviate or overcome the cause of the delay or failure.



     Section 15.3 Efforts to Overcome. If a Party is claiming an excusable delay or failure under Section 15.1,
it shall use its Reasonable Efforts to alleviate or overcome the cause of the delay or failure as
soon as practicable.



ARTICLE 16

DISPUTE RESOLUTION




     Section 16.1 Resolution of Disputes. Except as specifically provided in Section 16.2 hereof, prior to, and
in certain circumstances (as specified in this Section 16.1) in lieu of, any Party’s right to seek
any remedy in a court of competent jurisdiction, the Parties hereby agree that they shall resolve
any dispute, claim or controversy arising out of or relating to this Agreement or the breach,
termination, enforcement, interpretation or validity thereof (each a “Dispute”) as follows:




     (a) Invoice and Billing Disputes. With respect to any Disputes relating to any
invoice or billing matter American and Eagle shall in good faith use Reasonable Efforts to
resolve such Dispute as follows:




     (i) Within thirty (30) days following the receipt of any bill or invoice,
either American or Eagle, as the case may be, if disputing such bill or invoice,
shall provide Notice to the other of the amount in question and submit payment for
all amounts not in Dispute as set forth in the bill or invoice in accordance with
ARTICLE 7.




     (ii) If American and Eagle have not resolved the Dispute within ten (10) days
of Notice of such a Dispute, then American and Eagle shall submit the Dispute to a
mutually agreed upon independent auditor for prompt resolution. The costs and
expenses associated with such independent auditor shall be borne equally by American
and Eagle.



23









 






     (iii) If the amount of the Dispute is equal to or less than *****, the decision
of the independent auditor shall be binding on all Parties for all purposes hereof
and shall not be subject to further objection or appeal, including pursuant to any
other provision set forth in this ARTICLE 16 or otherwise.




     (iv) If the amount of the Dispute exceeds *****, then either American or Eagle
may within ten (10) days following the decision of the independent auditor,
implement the following:




     (A) Either American or Eagle may give Notice to the Representatives of
American and Eagle of the Dispute, which Notice shall identify the Dispute
to be discussed. The designated Representatives shall meet as promptly as
possible to negotiate in good faith to resolve the Dispute.




     (B) If the Representatives do not resolve the Dispute within ten (10)
days following the date of the Notice specified in subparagraph (A) above or
such longer period as may be mutually agreed to by the Representatives, then
the Dispute shall be referred (by either or both of the Representatives) to
American’s Vice President of Network Planning and Eagle’s Chief Financial
Officer for resolution.




     (C) The Vice President of Network Planning of American and the Chief
Financial Officer of Eagle shall meet within ten (10) days following any
referral to them by either of the Representatives and negotiate in good
faith to resolve the Dispute.




     (D) If the Vice President of Network Planning of American and the Chief
Financial Officer of Eagle are unable to resolve the Dispute within such
specified period, then either may refer the Dispute to the Senior Vice
President of Marketing and Planning of American and the Chief Executive
Officer of Eagle and they shall meet as promptly as possible to negotiate in
good faith to resolve the Dispute.




     (E) Failure to resolve the billing or invoice Dispute with thirty (30)
days following any referral to the Senior Vice President of Marketing and
Planning of American and the Chief Executive Officer of Eagle shall give
either American or Eagle the right to seek applicable remedies under this
Agreement in a court of competent jurisdiction.




     (v) The Parties agree to continue to perform their respective obligations under
this Agreement while a billing or invoice Dispute is being resolved pursuant to this
Section 16.1(a).





 




			
	*	 	THE COMPANY HAS REQUESTED AN ORDER FROM THE SECURITIES
AND EXCHANGE COMMISSION (THE “COMMISSION”) PURSUANT TO RULE 24B-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, GRANTING CONFIDENTIAL TREATMENT TO
SELECTED PORTIONS. ACCORDINGLY, THE CONFIDENTIAL PORTIONS HAVE BEEN OMITTED
FROM THIS EXHIBIT, AND HAVE BEEN FILED SEPARATELY WITH THE COMMISSION. OMITTED
PORTIONS ARE INDICATED IN THIS EXHIBIT WITH “*****”.




24









 











     (vi) In the event there is no officer holding the title Vice President of
Network Planning or the Senior Vice President of Marketing and Planning at American,
then the duties under this Section 16.1(a) shall be performed by an executive
performing similar duties and functions.




     (b) Other Disputes. With respect to any other Disputes, the Parties hereto agree that,
except as provided in Section 16.2 below, before seeking any remedy in a court of competent
jurisdiction, the following procedures shall apply




     (i) The Parties shall comply with the meet and confer procedures set forth in
Section 16.3 hereof.




     (ii) If the Parties’ Representatives are not able to resolve the Dispute
pursuant to Section 16.3 within ten (10) days of the Notice provided under Section
16.3, or such longer period as may be mutually agreed to by the Representatives,
then the Dispute shall be referred (by either or both of the Representatives) to the
Vice President of Network Planning of American and the Chief Financial Officer of
Eagle.




     (iii) The Vice President of Network Planning of American and the Chief
Financial Officer of Eagle shall meet within ten (10) days following any referral to
them by either of the Representatives and negotiate in good faith to resolve the
Dispute.




     (iv) If the Vice President of Network Planning of American and the Chief
Financial Officer of Eagle are unable to resolve the Dispute within such specified
period, then either may refer the Dispute to the Senior Vice President of Marketing
and Planning of American and the Chief Executive Officer of Eagle and they shall
meet as promptly as possible to negotiate in good faith to resolve the Dispute.




     (v) Failure to resolve the Dispute with thirty (30) days following any referral
to the Senior Vice President of Marketing and Planning of American and the Chief
Executive Officer of Eagle shall give either Party the right to seek applicable
remedies under this Agreement in a court of competent jurisdiction.




     (vi) The parties hereby agree to continue to perform their respective
obligations under this Agreement while a Dispute or issue is being resolved pursuant
to the provisions of this Section 16.1(b).




     (vii) In the event there is no officer holding the title Vice President of
Network Planning or the Senior Vice President of Marketing and Planning at American,
then the duties under this Section 16.1(b) shall be performed by an executive
performing similar duties and functions.



     Section 16.2 Equitable Remedies. Notwithstanding the provisions of Section 16.1 hereof, American and
Contractor each hereby acknowledge and agree that if the rights of a Party may be materially and
irreparably harmed by actions to be taken or taken by another Party, in



25









 





addition to its rights under this Agreement, a Party may apply to any court of law or equity
of competent jurisdiction in the State of Texas sitting in the Tarrant County Texas for specific
performance and/or other injunctive relief in order to enforce or prevent any breach of this
Agreement or enjoin other such action being taken or proposed to be taken by the other Party.




     Section 16.3 Meet and Confer. To the extent that this Agreement requires that the Parties meet and confer
in any circumstance, any Party may give Notice to both Parties’ Representatives of the issue or
matter to be discussed and, except to the extent another representative of a Party is designated in
accordance with the terms of this Agreement, the Parties’ Representatives shall meet within ten
(10) days to promptly negotiate in good faith. The Parties agree to continue to perform their
respective obligations under this Agreement while the matter or issue is being resolved pursuant to
this Section 16.3.



ARTICLE 17

EXPENSES AND TAXES




     Section 17.1 Expenses. Each Party shall be solely responsible for its costs and expenses incurred in
performing its obligations and exercising its rights and remedies under this Agreement, except as
otherwise provided in this Agreement.



     Section 17.2 Taxes. Subject to the provisions of the Tax Matters Agreement between AMR and Eagle Holding
or any other controlling agreement between the Parties, the Parties shall be responsible for Taxes
relating to or arising from this Agreement as follows:




     (a) Each Party shall be responsible for its own income and franchise taxes and for all
other Taxes (however denominated) based on its own income, receipts or earnings, whether
gross or net.




     (b) Eagle shall be responsible for all sales, use, value-added and similar Taxes
(however denominated) applicable to the Services, in whole or in part. This obligation
includes Eagle’s paying such Taxes identified in American’s invoices submitted to Eagle for
the Services.




     (i) If Eagle claims an exemption or exclusion from taxes of this kind, it
shall deliver to American a certificate or letter stating Eagle’s good-faith
belief that a Service is not, in whole or in part, subject to those taxes.
Whether or not Eagle delivers that certificate or letter, however, it shall
indemnify American, in accordance with Section 14.3(c), against any taxes of
this kind assessed or levied against, or paid by, American and any other
related damages of American.




     (ii) If American receives an assessment from a Governmental Authority
covering Taxes for which Eagle is responsible under this Section 17.2(b),
American shall Notify Eagle of the assessment and Eagle may request, in
accordance with Section 17.2(b)(iv), American to timely protest the assessment
at Eagle’s sole expense. If payment to the Governmental Authority is required
by law as a condition to protest, Eagle shall timely remit to American the
required amount for such payment.



26









 






     (iii) If Eagle believes it has overpaid Taxes to American for any of the
Services (in whole or in part), Eagle may request, in accordance with Section
17.2(b)(iv), American to file a claim for a refund at Eagle’s sole expense.
If permitted by law, American may assign any right to a refund directly to
Eagle instead of filing a refund claim in its own name. Any refund of Taxes
received by American under this Section 17.2(b)(iii) shall be promptly
remitted to Eagle.




     (iv) American shall reasonably consider a request by Eagle under Section
17.2(b)(ii) or Section 17.2(b)(iii) in good faith, which shall not be
unreasonably withheld; provided, , American may, at any time, require Eagle to
deliver to American, at Eagle’s sole expense, an opinion from a
nationally-recognized law firm selected by Eagle and suitable to American
stating that Eagle’s tax position is at least more likely than not to be
sustained on its merits; provided further, that American, at any time and in
its sole discretion, may elect to remit to Eagle the amount of such contested
Tax in lieu of either protesting any assessment or filing a claim for refund.




     (v) Except as stated in the next sentence, any Dispute between the
Parties regarding the application of any Taxes to any Service (in whole or in
part) shall be resolved by the Dispute Resolution Procedure. Any Dispute as
to the amount of Tax (if any) owed to a Governmental Authority, including a
Dispute between a Party and the Governmental Authority, need not be resolved
by the Dispute Resolution Procedure, but may be resolved by any appropriate
administrative or legal procedure available to a Party or the Parties under
this Agreement apart from the Dispute Resolution Procedure, provided, American
shall not be obligated to undertake any administrative or judicial proceeding
on Eagle’s behalf (and at its sole expense) unless such action is severable
from American’s audit, appeal or litigation.




     (c) Each Party shall be responsible for all real property, personal property, and other
similar Taxes (however denominated) based on its owned or leased property, whether real or
personal.




     (d) Each Party shall be responsible for all employment-related Taxes (however
denominated) regarding its own employees..



Each Party shall cooperate with any reasonable request of the other Party to restructure any
Service (in whole or in part) or to take any other reasonable action to avoid or minimize any
duplicate Taxes that might be imposed; the requesting Party shall bear the expenses of the other
Party’s compliance.




27









 








ARTICLE 18

MISCELLANEOUS




     Section 18.1 Notices. All Notices, Consents, or amendments under this Agreement shall be in writing and
shall be deemed given to American or Eagle, as the case may be, upon (i) confirmation of receipt of
a delivery in person; (ii) a transmitter’s confirmation of a receipt of a facsimile or e-mail
transmission (but only if followed by confirmed delivery the following Business Day (a) by a
nationally recognized overnight courier or (b) by hand); or (iii) confirmed delivery by a
nationally recognized overnight courier, to the Parties at the following addresses:



if to American, to:




American Airlines, Inc.

4333 Amon Carter Blvd.

Mail Drop 5675

Ft. Worth, TX 76155

Attn: Corporate Secretary

Facsimile No.:                     

Telephone No.:                     

                    



if to Eagle, to:




American Eagle Airlines, Inc.

4333 Amon Carter Blvd.

Mail Drop 5494

Ft. Worth, TX 76155

Attn: General Counsel

Facsimile No.:                     

Telephone No.:                     

                    



     or, in each case, to such other address as a Party may have furnished to the other Party by a
Notice in accordance with this Section 18.1.



     Where in this Agreement the words “request,” “directed,” “inform,” “furnish” or “approved” or
similar phrases, expressions or derivatives thereof are used rather than the terms Notice or
Consent, such instruction to receive such communication shall be sufficient if done orally (and not
in writing) (each a “Communication”) so long as it is provided (i) in accordance with past
practices or, if there are no past practices, in accordance with customary industry practices, (ii)
the Person providing the Communication reasonably believes that the Person receiving such
Communication is authorized to receive such Communication and (iii) the Person receiving such
Communication reasonably believes the Person providing such Communication has the apparent or
actual authority to undertake the action in question.



28









 





     Section 18.2 Binding Effect and Assignment. The terms and conditions of this Agreement shall inure to the
benefit of and be binding and enforceable upon the Parties and their respective successors and
permitted assigns. Except with respect to (a) a merger, reorganization, or consolidation of
American with or into another Person, (b) an assignment of this Agreement or any rights pertaining
thereto, in whole or in part, by American to an Affiliate, or (c) a transaction, or series of
transactions, by American involving the sale, pledge, lease, transfer or exchange of substantially
all of the assets of American, neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any Party without prior Consent of the other Party. In
the event of (c) above, Eagle shall be deemed to have released (without further action on the part
of Eagle) American from any and all duties, obligations and liabilities (including assignor
liability) arising under this Agreement after the date of assignment.



     Section 18.3 Amendment and Modification. This Agreement may not be amended or modified in any respect
except by a written agreement signed by both of the Parties.



     Section 18.4 Waiver. The performance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) by the Party entitled to enforce
such term, but such waiver shall be effective only if it is in writing signed by the Party against
which such waiver is to be asserted. Unless otherwise expressly provided in this Agreement, no
delay or omission on the part of any Party in exercising any right or privilege under this
Agreement shall operate as a waiver thereof, nor shall any waiver on the part of any Party of any
right or privilege under this Agreement operate as a waiver of any other right or privilege under
this Agreement nor shall any single or partial exercise of any right or privilege preclude any
other or further exercise thereof or the exercise of any other right or privilege under this
Agreement.



     Section 18.5 Interpretation. The table of contents and the article, section and other headings and
subheadings contained in this Agreement and in the schedules hereto are solely for the purpose of
reference, are not part of the agreement of the Parties hereto, and shall not in any way affect the
meaning or interpretation of this Agreement or any Schedule hereto. All references to days, months
or years shall be deemed references to calendar days, months or years, unless otherwise provided.
All references to “$” shall be deemed references to United States dollars. Unless the context
otherwise requires, any reference to an “Article,” a “Section,” or a “Schedule” shall be deemed to
refer to an article or section of this Agreement or a Schedule to this Agreement, as applicable.
The words “hereof,” “herein” and “hereunder” and words of similar import referring to this
Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement.
Whenever the words “include,” “includes” or “including” are used in this Agreement, unless
otherwise specifically provided, they shall be deemed to be followed by the words “without
limitation.” This Agreement shall be construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting or causing the document to be drafted.
With regard to all dates and time periods set forth or referred to in this Agreement, time is of
the essence.



29









 





     Section 18.6 Cooperation with Respect to Reporting. Each Party shall use its Reasonable Efforts to
cooperate with the other Party in providing necessary data, to the extent in the possession of the
first (1st) Party, required by such other Party to meet any reporting requirements to,
or otherwise in connection with any filing with or provision of information to be made to, any
regulatory agency, stock exchange, or other Governmental Authority.



     Section 18.7 Entire Agreement; Conflicts with this Agreement. This Agreement embodies the entire agreement
between the Parties hereto concerning the subject matter hereof and such agreement terminates and
supersedes all prior or contemporaneous agreements, discussions, undertakings and understandings,
whether written or oral, express or implied, concerning the subject matter hereof. Although it is
recognized that the Parties or their Affiliates also are entering into the Ancillary Agreements,
the Parties agree and acknowledge that this Agreement shall be construed and interpreted (to the
extent any such construction or interpretation ever is necessary) without reference to, or
supplementation by, the terms of such Ancillary Agreements other than as expressly stated in this
Agreement. The effectiveness of this Agreement shall not be deemed a waiver by either Party of any
disclosed or undisclosed breach, default, event of default or termination event under such other
agreements. If any of the terms or provisions of this Agreement conflict with any terms or
provisions of the Ancillary Agreements, then the terms and provisions of this Agreement shall
govern and control for all purposes; provided, that terms and provisions not addressed in this
Agreement shall not be deemed to be a conflict with the Ancillary Agreements and all such
additional terms and provisions contained in the Ancillary Agreements shall be given full force and
effect. Furthermore, the Parties agree that in the event of a conflict between ARTICLE 14 and the
indemnification provisions of the Ancillary Agreements, this Agreement shall control.




     Section 18.8 Severability. Any provision of this Agreement that 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. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.



     Section 18.9 Governing Law. This Agreement shall be governed by and construed in accordance with the laws
of the State of New York (excluding New York conflict of laws principles that might call for the
application of the law of another jurisdiction) as to all matters, including matters of validity,
construction, effect, performance and remedies.



     Section 18.10 Remedies Cumulative. The rights and remedies of the Parties are cumulative and not
alternative. Neither the failure nor any delay by either Party in exercising any right, power, or
privilege under this Agreement or the documents referred to in this Agreement will operate as a
waiver of such right, power, or privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of such right, power, or privilege
or the exercise of any other right, power, or privilege.



     Section 18.11 Jurisdiction. Each Party irrevocably submits to the exclusive jurisdiction of the United
States District Court for the Northern District of Texas and, if such court does not have
jurisdiction, of the courts of the State of Texas sitting in Tarrant County Texas for the purposes
of any suit, action or other proceeding arising out of this Agreement or the subject



30









 





matter hereof brought by the other Party. To the extent permitted by applicable laws, rules
or regulations of a Governmental Authority, each Party waives and agrees not to assert, by way of
motion, as a defense or otherwise, in any such suit, action or proceeding, any claim (a) that it is
not subject to the jurisdiction of the above-named courts; (b) that the suit, action or proceeding
is brought in an inconvenient forum; or (c) that the venue of the suit, action or proceeding is
improper. Each Party further waives any right to a trial by jury.




     Section 18.12 Further Assurances. The Parties agree to take such further actions and execute and deliver
such other documents, certificates, agreements and other instruments as may be reasonably necessary
or desirable in order to implement the transactions contemplated by this Agreement.



     Section 18.13 No Third Party Beneficiaries. Nothing in this Agreement or any Ancillary Agreement, expressed
or implied, is intended to confer upon any party, other than the Parties and their respective
permitted assigns, any rights, privileges, remedies, duties, obligations or liabilities under or by
reason of this Agreement and no Person who is not a party to this Agreement may rely on the terms
hereof. Notwithstanding the foregoing, each American Indemnified Agent shall be a third party
beneficiary with respect to Section 14.3 hereof and shall have all of the rights, benefits and
privileges of a third party beneficiary with respect to Section 14.3.



     Section 18.14 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument. This Agreement may be executed by facsimile signature or portable document format
(pdf).



     Section 18.15 Survival of Certain Obligations. Except for the covenants and agreements in ARTICLE 1,
Section 4.5 (for the period provided in such section), Section 8.2, ARTICLE 9, Section 13.4(a) (for
the period provided in Section 13.4), ARTICLE 14, ARTICLE 16, ARTICLE 17 and ARTICLE 18, all
representations, warranties, covenants and agreements of the Parties set forth herein shall
terminate and expire, and shall cease to be in full force and effect following the Expiration or
Termination Date of this Agreement.



[Remainder of Page Intentionally Left Blank; Signature Page Follows]



31









 





     IN WITNESS WHEREOF, the Parties have entered this Agreement effective as of the Effective
Date.



	 	 	 	 	 
	 	AMERICAN AIRLINES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	AMERICAN EAGLE AIRLINES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



32









 






	 	 	 	 	 



SCHEDULE INDEX




	 	 	 

	SCHEDULE A

	 	ACH PROCESSING
	SCHEDULE B

	 	AFFIRMATIVE ACTION
	SCHEDULE C

	 	BANKING SERVICE
	SCHEDULE D

	 	BENEFITS ACCOUNTING
	SCHEDULE E

	 	BENEFITS STRATEGY/COMPLIANCE
	SCHEDULE F

	 	CASE MANAGEMENT SYSTEM AND REPORTS
	SCHEDULE G

	 	CASH ACCOUNTING SERVICE
	SCHEDULE H

	 	DEFIBRILLATOR PROGRAM SUPPORT
	SCHEDULE I-1

	 	DISBURSEMENTS — VENDOR MAINTENANCE
	SCHEDULE I-2

	 	DISBURSEMENTS — PURCHASING CARD MANAGEMENT
	SCHEDULE I-3

	 	DISBURSEMENTS — PUERTO RICAN TAX FILING
	SCHEDULE J

	 	DIVERSITY STRATEGIES — DASHBOARD AND ERGS
	SCHEDULE K

	 	DRUG & ALCOHOL PROGRAM ADMINISTRATION
	SCHEDULE L

	 	EHR MAINTENANCE
	SCHEDULE M

	 	EMPLOYEE ASSISTANCE PROGRAM (EAP) SERVICES
	SCHEDULE N

	 	ENVIRONMENTAL SERVICES
	SCHEDULE O

	 	EPAAS — EMPLOYEE PURCHASE
	SCHEDULE P

	 	FAMILY FUND
	SCHEDULE Q

	 	FMLA PROGRAM ADMINISTRATION
	SCHEDULE R

	 	FINANCE, LEGAL AND ADMINISTRATION SERVICES IN MEXICO REGION
	SCHEDULE S

	 	FOS INPUT DATA CORRECTION
	SCHEDULE T

	 	HDQ LICENSE AND MAINTENANCE & OVERHEAD
	SCHEDULE U

	 	HORIZON
	SCHEDULE V

	 	IBM & MERCER WORK UNDER BPO SERVICES
	SCHEDULE W

	 	LEARNING
	SCHEDULE X

	 	LEGAL SERVICES






33









 






	 	 	 

	SCHEDULE Y

	 	LOST TIME TRACKING AND REPORTING
	SCHEDULE Z

	 	MEDICAL OVERSIGHT
	SCHEDULE AA

	 	MEDICAL SCREENING & PHYSICALS
	SCHEDULE BB

	 	NRSA
	SCHEDULE CC

	 	OPERATIONS ENGINEERING SERVICES
	SCHEDULE DD

	 	PAYROLL
	SCHEDULE EE

	 	RELOCATION SERVICES
	SCHEDULE FF

	 	RETURN TO DUTY
	SCHEDULE GG

	 	SMARTBUY
	SCHEDULE HH

	 	SOC SERVICES
	SCHEDULE II

	 	SOUTHERN PRIDE
	SCHEDULE JJ

	 	SPACE PLANNING
	SCHEDULE KK

	 	TAX ADMINISTRATION SERVICES
	SCHEDULE LL

	 	WORK ENVIRONMENT — CA, CT AND ME SEXUAL HARASSMENT TRAINING
	SCHEDULE MM

	 	RISK MANAGEMENT/INSURANCE
	SCHEDULE NN

	 	UNPAID SLOA / INJURY ON DUTY MONITORING
	SCHEDULE OO

	 	401K ADMINISTRATION
	SCHEDULE PP

	 	EXECUTIVE COMPENSATION
	SCHEDULE QQ

	 	TALEO
	SCHEDULE RR

	 	SYSTEM OPERATIONS CONTROL (SOC) AND BUSINESS RESUMPTION CONTROL CENTER (BRCC) LICENSE AND
MAINTENANCE & OVERHEAD







34