EXHIBIT 4(c)(1)
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REVOLVING CREDIT AGREEMENT
(2003-1G)
Dated as of July 8, 2003
between
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Subordination Agent,
as agent and trustee for the trustee of
American Airlines Pass Through Trust 2003-1G,
as Borrower
and
CITIBANK, N.A.,
as Liquidity Provider
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American Airlines Pass Through Trust 2003-1G
3.857% American Airlines Pass Through Certificates,
Series 2003-1G
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS........................................................................................... 1
Section 1.01. Definitions.................................................................. 1
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENT................................................................... 8
Section 2.01. The Advances................................................................. 8
Section 2.02. Making the Advances.......................................................... 8
Section 2.03. Fees......................................................................... 10
Section 2.04. Reductions or Termination of the Maximum Commitment.......................... 10
Section 2.05. Repayments of Interest Advances or the Final Advance......................... 10
Section 2.06. Repayments of Provider Advances.............................................. 11
Section 2.07. Payments to the Liquidity Provider Under the Intercreditor Agreement......... 12
Section 2.08. Book Entries................................................................. 12
Section 2.09. Payments from Available Funds Only........................................... 12
Section 2.10. Extension of the Expiry Date; Non-Extension Advance.......................... 12
ARTICLE III OBLIGATIONS OF THE BORROWER......................................................................... 13
Section 3.01. Increased Costs.............................................................. 13
Section 3.02. Capital Adequacy............................................................. 14
Section 3.03. Payments Free of Deductions.................................................. 15
Section 3.04. Payments..................................................................... 16
Section 3.05. Computations................................................................. 16
Section 3.06. Payment on Non-Business Days................................................. 16
Section 3.07. Interest..................................................................... 16
Section 3.08. Replacement of Borrower...................................................... 17
Section 3.09. Funding Loss Indemnification................................................. 18
Section 3.10. Illegality................................................................... 18
Section 3.11. Mitigation................................................................... 18
ARTICLE IV CONDITIONS PRECEDENT................................................................................. 18
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01........................ 18
Section 4.02. Conditions Precedent to Borrowing............................................ 20
ARTICLE V COVENANTS............................................................................................. 20
Section 5.01. Affirmative Covenants of the Borrower........................................ 20
Section 5.02. Negative Covenants of the Borrower........................................... 21
Section 5.03. Covenants Regarding Certain Notices.......................................... 21
ARTICLE VI LIQUIDITY EVENTS OF DEFAULT.......................................................................... 21
Section 6.01. Liquidity Events of Default.................................................. 21
ARTICLE VII MISCELLANEOUS....................................................................................... 22
Section 7.01. No Oral Modifications or Continuing Waivers.................................. 22
Section 7.02. Notices...................................................................... 22
Section 7.03. No Waiver; Remedies.......................................................... 23
Section 7.04. Further Assurances........................................................... 23
Section 7.05. Indemnification; Survival of Certain Provisions.............................. 23
Section 7.06. Liability of the Liquidity Provider.......................................... 24
Section 7.07. Costs, Expenses and Taxes.................................................... 24
Section 7.08. Binding Effect; Participations............................................... 25
Section 7.09. Severability................................................................. 26
Section 7.10. GOVERNING LAW................................................................ 26
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity......... 26
Section 7.12. Execution in Counterparts.................................................... 27
Section 7.13. Entirety..................................................................... 27
Section 7.14. Headings..................................................................... 27
Section 7.15. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES............................. 27
ANNEX I Interest Advance Notice of Borrowing
ANNEX II Non-Extension Advance Notice of Borrowing
ANNEX III Downgrade Advance Notice of Borrowing
ANNEX IV Final Advance Notice of Borrowing
ANNEX V Notice of Termination
ANNEX VI Notice of Replacement Subordination Agent
REVOLVING CREDIT AGREEMENT (2003-1G)
This REVOLVING CREDIT AGREEMENT (2003-1G), dated as of July 8,
2003, is made by and between U.S. BANK TRUST NATIONAL ASSOCIATION, a national
banking association, not in its individual capacity but solely as Subordination
Agent (such term and other capitalized terms used herein without definition
being defined as provided in Article I) under the Intercreditor Agreement, as
agent and trustee for the Class G Trustee (in such capacity, together with its
successors in such capacity, the "Borrower"), and CITIBANK, N.A., a national
banking association (the "Liquidity Provider").
W I T N E S S E T H:
WHEREAS, pursuant to the Class G Trust Agreement, the Class G
Trust is issuing the Class G Certificates; and
WHEREAS, the Borrower, in order to support the timely payment
of a portion of the interest on the Class G Certificates in accordance with
their terms, has requested the Liquidity Provider to enter into this Agreement,
providing in part for the Borrower to request in specified circumstances that
Advances be made hereunder;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, and of other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.
(a) The definitions stated herein apply equally to both the
singular and the plural forms of the terms defined.
(b) All references in this Agreement to designated "Articles",
"Sections", "Annexes" and other subdivisions are to the designated Article,
Section, Annex or other subdivision of this Agreement, unless otherwise
specifically stated.
(c) The words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section, Annex or other subdivision.
(d) Unless the context otherwise requires, whenever the words
"including", "include" or "includes" are used herein, it shall be deemed to be
followed by the phrase "without limitation".
(e) For the purposes of this Agreement, unless the context
otherwise requires, the following capitalized terms shall have the following
meanings:
"Additional Costs" has the meaning specified in Section 3.01.
"Advance" means an Interest Advance, a Final Advance, a
Provider Advance or an Applied Provider Advance, as the case may be.
"Agreement" means this Agreement, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
"Applicable Liquidity Rate" has the meaning specified in
Section 3.07(f).
"Applicable Margin" means (i) with respect to any Unpaid
Advance or Applied Provider Advance, 2.50% per annum and (ii) with respect to
any Unapplied Provider Advance, the rate per annum specified in the Fee Letter
applicable to this Agreement.
"Applied Downgrade Advance" has the meaning specified in
Section 2.06(a).
"Applied Non-Extension Advance" has the meaning specified in
Section 2.06(a).
"Applied Provider Advance" has the meaning specified in
Section 2.06(a).
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for each day in the period for which the Base Rate is to be determined
(or, if such day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or if such rate is not so published for
any day that is a Business Day, the average of the quotations for such day for
such transactions received by the Liquidity Provider from three Federal funds
brokers of recognized standing selected by it, plus one quarter of one percent
(0.25%) per annum.
"Base Rate Advance" means an Advance that bears interest at a
rate based upon the Base Rate.
"Borrower" has the meaning specified in the introductory
paragraph to this Agreement.
"Borrowing" means the making of Advances requested by delivery
of a Notice of Borrowing.
"Business Day" means any day other than a Saturday, a Sunday
or a day on which commercial banks are required or authorized to close in New
York, New York, Dallas, Texas, or, so long as any Class G Certificate is
outstanding, the city and state in which the Class G Trustee, the Borrower or
any related Loan Trustee maintains its Corporate Trust Office or receives or
disburses funds, and, if the applicable Business Day relates to any Advance or
other amount
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bearing interest based on the LIBOR Rate, on which dealings are carried on in
the London interbank market.
"Downgrade Advance" means an Advance made pursuant to Section
2.02(c).
"Effective Date" has the meaning specified in Section 4.01.
The delivery of the certificate of the Liquidity Provider contemplated by
Section 4.01(e) shall be conclusive evidence that the Effective Date has
occurred.
"Excluded Taxes" means (i) Taxes imposed on, based on or
measured by the income of, or franchise Taxes imposed on, the Liquidity Provider
or its Lending Office by the jurisdiction where such Liquidity Provider's
principal office or such Lending Office is located or any other taxing
jurisdiction in which such Tax is imposed as a result of the Liquidity Provider
being, or having been, organized in, or conducting, or having conducted, any
activities unrelated to the transactions contemplated by the Operative
Agreements in, such jurisdiction, (ii) any Taxes resulting from any change
(other than a change pursuant to Section 3.11 hereof) in the Lending Office
without the prior written consent of American and (iii) withholding taxes,
whether or not indemnified under Section 3.03.
"Excluded Withholding Taxes" means (i) in the case of the
original Liquidity Provider, any withholding Tax imposed by the United States
pursuant to applicable law in effect on the date hereof, (ii) in the case of any
successor Liquidity Provider, any withholding Tax imposed by the United States
except (a) if such Liquidity Provider is, on the date it acquires its interest
herein, a "resident" of an Applicable Treaty jurisdiction entitled to claim the
benefits of an Applicable Treaty in respect of amounts payable hereunder, any
such withholding Tax to the extent imposed as a result of a change in applicable
law after the date such Liquidity Provider acquired its interest herein and (b)
in the case of any successor Liquidity Provider, to the extent the amount of
such withholding Tax imposed on such successor Liquidity Provider pursuant to
applicable law in effect on the date it acquires its interest herein does not
exceed the amount of such withholding Tax that, in the absence of the transfer
to such Liquidity Provider, would have been a Non-Excluded Tax imposed on
payments to the predecessor Liquidity Provider pursuant to applicable law in
effect on such date, (iii) any Tax imposed or increased as a result of the
Liquidity Provider failing to deliver to the Borrower any certificate or
document (which certificate or document in the good faith judgment of the
Liquidity Provider it is legally entitled to provide) which is reasonably
requested by the Borrower to establish that payments under this Agreement are
exempt from (or entitled to a reduced rate of) withholding Tax, (iv) any Tax
imposed by a jurisdiction as a result of the Liquidity Provider being, or having
been, organized in, or maintaining, or having maintained, its principal office
or Lending Office in, or conducting, or having conducted, any activities
unrelated to the transactions contemplated by the Operative Agreements in, such
jurisdiction, and (v) any Tax resulting from any change (other than a change
pursuant to Section 3.11 hereof) in the Lending Office without the prior written
consent of American. For purposes of this definition, "Applicable Treaty" means
an income tax treaty between the United States and any of Australia, Austria,
Canada, France, Germany, Ireland, Japan, Luxembourg, The Netherlands, Sweden,
Switzerland or the United Kingdom.
"Expenses" means liabilities, obligations, damages,
settlements, penalties, claims, actions, suits, costs, expenses, and
disbursements (including, without limitation, reasonable fees
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and disbursements of legal counsel and costs of investigation), provided that
Expenses shall not include any Taxes other than sales, use and V.A.T. taxes
imposed on fees and expenses payable pursuant to Section 7.07.
"Expiry Date" means July 5, 2004, initially, or any date to
which the Expiry Date is extended pursuant to Section 2.10, or if any such day
is not a Business Day, the preceding Business Day.
"Final Advance" means an Advance made pursuant to Section
2.02(d).
"Intercreditor Agreement" means the Intercreditor Agreement
dated as of the date hereof, among the Class G Trustee, the Class C Trustee, the
Class D Trustee, the Liquidity Provider, the Policy Provider and the
Subordination Agent, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"Interest Advance" means an Advance made pursuant to Section
2.02(a).
"Interest Period" means, with respect to any LIBOR Advance,
each of the following periods:
(i) the period beginning on the third Business Day
following either (A) the Liquidity Provider's receipt
of the Notice of Borrowing for such LIBOR Advance or
(B) the date of the withdrawal of funds from the Cash
Collateral Account for the purpose of paying interest
on the Class G Certificates as contemplated by Section
2.06(a) hereof and, in either case, ending on the next
Regular Distribution Date (or, if such Regular
Distribution Date is not a Business Day, the next
succeeding Business Day); and
(ii) each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending
on the next Regular Distribution Date (or, if such
Regular Distribution Date is not a Business Day, the
next succeeding Business Day);
provided, however, that if (x) the Final Advance shall have
been made pursuant to Section 2.02(d), or (y) other
outstanding Advances shall have been converted into the Final
Advance pursuant to Section 6.01, then the Interest Periods
shall be successive periods of one month beginning on the
third Business Day following the Liquidity Provider's receipt
of the Notice of Borrowing for such Final Advance (in the case
of clause (x) above) or the Regular Distribution Date
following such conversion (in the case of clause (y) above),
each such one month period to be subject to the "following
business day" methodology set forth in clauses (i) and (ii)
above.
"Lending Office" means the lending office of the Liquidity
Provider presently located at New York, New York, or such other lending office
as the Liquidity Provider from time to time shall notify the Borrower as its
Lending Office hereunder; provided that the Liquidity Provider shall not change
its Lending Office to another lending office outside the United States of
America except in accordance with Section 3.11 hereof.
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"LIBOR Advance" means an Advance bearing interest at a rate
based upon the LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period, (a)
the:
(i) rate per annum appearing on display page 3750
(British Bankers Association-LIBOR) of the Dow ▇▇▇▇▇
Markets Service (or any successor or substitute
therefor ) at approximately 11:00 a.m. (London time)
on the day that is two Business Days prior to the
first day of such Interest Period, as the rate for
dollar deposits with a maturity comparable to such
Interest Period, or
(ii) if the rate calculated pursuant to clause (i) above
is not available, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the rates per
annum at which deposits in dollars are offered for
the relevant Interest Period by three banks of
recognized standing selected by the Liquidity
Provider in the London interbank market at
approximately 11:00 a.m. (London time) on the day
that is two Business Days prior to the first day of
such Interest Period in an amount approximately equal
to the principal amount of the LIBOR Advance to which
such Interest Period is to apply and for a period
comparable to such Interest Period.
"Liquidity Event of Default" means the occurrence of either
(a) the Acceleration of all of the Equipment Notes or (b) an American Bankruptcy
Event.
"Liquidity Indemnitee" means (i) the Liquidity Provider, (ii)
the directors, officers, employees and agents of the Liquidity Provider, and
(iii) the successors and permitted assigns of the persons described in clauses
(i) and (ii).
"Liquidity Provider" has the meaning specified in the
introductory paragraph to this Agreement.
"Maximum Available Commitment" means, subject to the proviso
contained in the third sentence of Section 2.02(a), at any time of
determination, (a) the Maximum Commitment at such time less (b) the aggregate
amount of each Interest Advance outstanding at such time; provided that
following a Provider Advance or a Final Advance, the Maximum Available
Commitment shall be zero.
"Maximum Commitment" means initially $14,772,404.60, as the
same may be reduced from time to time in accordance with Section 2.04(a).
"Non-Excluded Tax" has the meaning specified in Section 3.03.
"Non-Extension Advance" means an Advance made pursuant to
Section 2.02(b).
"Notice of Borrowing" has the meaning specified in Section
2.02(e).
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"Notice of Replacement Subordination Agent" has the meaning
specified in Section 3.08.
"Participation" has the meaning specified in Section 7.08(b).
"Performing Note Deficiency" means any time that less than 65%
of the then aggregate outstanding principal amount of all Equipment Notes are
Performing Equipment Notes.
"Permitted Transferee" means any Person that:
(a) is not a commercial air carrier, American or any
affiliate of American; and
(b) is any one of:
(1) a commercial banking institution organized
under the laws of the United States or any state thereof or
the District of Columbia;
(2) a commercial banking institution that (x) is
organized under the laws of France, Germany, The Netherlands,
Switzerland, or the United Kingdom, (y) is entitled on the
date it acquires any Participation to a complete exemption
from United States federal income taxes for all income derived
by it from the transactions contemplated by the Operative
Agreements under an income tax treaty, as in effect on such
date, between the United States and such jurisdiction of its
organization and (z) is engaged in the active conduct of a
banking business in such jurisdiction of its organization,
holds its Participation in connection with such banking
business in such jurisdiction and is regulated as a commercial
banking institution by the appropriate regulatory authorities
in such jurisdiction; or
(3) a commercial banking institution that (x) is
organized under the laws of Canada, France, Germany, Ireland,
Japan, Luxembourg, The Netherlands, Sweden, Switzerland or the
United Kingdom and (y) is entitled on the date it acquires any
Participation to a complete exemption from withholding of
United States federal income taxes for all income derived by
it from the transactions contemplated by the Operative
Agreements under laws as in effect on such date by reason of
such income being effectively connected with the conduct of a
trade or business within the United States.
"Prospectus Supplement" means the Prospectus Supplement dated
June 30, 2003 relating to the Certificates, as such Prospectus Supplement may be
amended or supplemented.
"Provider Advance" means a Downgrade Advance or a
Non-Extension Advance.
"Regulatory Change" has the meaning specified in Section 3.01.
"Replenishment Amount" has the meaning specified in Section
2.06(b).
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"Required Amount" means, for any day, the sum of the aggregate
amount of interest, calculated at the rate per annum equal to the Stated
Interest Rate for the Class G Certificates on the basis of a 360 day year
comprised of twelve 30 day months, that would be payable on the Class G
Certificates on each of the three successive semiannual Regular Distribution
Dates immediately following such day or, if such day is a Regular Distribution
Date, on such day and the succeeding two semiannual Regular Distribution Dates,
in each case calculated on the basis of the Pool Balance of the Class G
Certificates on such day and without regard to expected future distributions of
principal on the Class G Certificates. Notwithstanding the above, in the event
of any Policy Provider Election, for purposes of the definition of the Required
Amount, the Pool Balance shall be deemed to be reduced by the amount (if
positive) by which (a) the then outstanding principal balance of each Series G
Equipment Note in respect of which such Policy Provider Election has been made
shall exceed (b) the amount of any Policy Drawings previously paid by the Policy
Provider in respect of principal on such Series G Equipment Note.
"Termination Date" means the earliest to occur of the
following: (i) the Expiry Date; (ii) the date on which the Borrower delivers to
the Liquidity Provider a certificate, signed by a Responsible Officer of the
Borrower, certifying that (x) all of the Class G Certificates have been paid in
full (or provision has been made for such payment in accordance with the
Intercreditor Agreement and the Class G Trust Agreement), (y) each of the
Indentures has been terminated with respect to all of the Equipment Notes issued
thereunder as contemplated by clause (i) of Section 10.01(a) of such Indenture
or (z) the Class G Certificates are otherwise no longer entitled to the benefits
of this Agreement; (iii) the date on which the Borrower delivers to the
Liquidity Provider a certificate, signed by a Responsible Officer of the
Borrower, certifying that a Replacement Liquidity Facility has been substituted
for this Agreement in full pursuant to Section 3.06(e) of the Intercreditor
Agreement; (iv) the fifth Business Day following the receipt by the Borrower of
a Termination Notice from the Liquidity Provider pursuant to Section 6.01
hereof; and (v) the date on which no Advance is, or may (including by reason of
reinstatement as herein provided) become, available for a Borrowing hereunder.
"Termination Notice" means the Notice of Termination
substantially in the form of Annex V to this Agreement.
"Unapplied Provider Advance" means any Provider Advance other
than an Applied Provider Advance.
"Unpaid Advance" has the meaning specified in Section 2.05.
(f) For the purposes of this Agreement, the following terms
shall have the respective meanings specified in the Intercreditor Agreement:
"Acceleration", "American", "American Bankruptcy Event", "Cash
Collateral Account", "Certificate", "Class C Certificates", "Class D
Certificates", "Class G Certificateholders", "Class G Certificates", "Class G
Trust", "Class G Trust Agreement", "Class G Trustee", "Closing Date",
"Controlling Party", "Corporate Trust Office", "Distribution Date", "Dollars",
"Downgraded Facility", "Equipment Notes", "Fee Letter", "Final Legal
Distribution Date", "Indenture", "Interest Payment Date", "Investment Earnings",
"Liquidity Obligations",
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"Loan Trustee", "▇▇▇▇▇'▇", "Non-Extended Facility", "Operative Agreements",
"Participation Agreement", "Performing Equipment Note", "Person", "Policy
Drawings", "Policy Provider", "Policy Provider Election", "Pool Balance",
"Rating Agencies", "Ratings Confirmation", "Regular Distribution Dates",
"Replacement Liquidity Facility", "Responsible Officer", "Scheduled Payment",
"Series G Equipment Note", "Special Payment", "S&P", "Stated Interest Rate",
"Subordination Agent", "Taxes", "Threshold Rating", "Trustee", "Underwriters",
"Underwriting Agreement", "United States" and "Written Notice".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances. The Liquidity Provider hereby
irrevocably agrees, on the terms and conditions hereinafter set forth, to make
Advances to the Borrower from time to time on any Business Day during the period
from the Effective Date until 12:00 noon (New York City time) on the Expiry Date
(unless the obligations of the Liquidity Provider shall be earlier terminated in
accordance with the terms of Section 2.04(b)) in an aggregate amount at any time
outstanding not to exceed the Maximum Commitment.
Section 2.02. Making the Advances. (a) Each Interest Advance
shall be made by the Liquidity Provider upon delivery to the Liquidity Provider
of a written and completed Notice of Borrowing in substantially the form of
Annex I attached hereto, signed by a Responsible Officer of the Borrower, such
Interest Advance to be in an amount not exceeding the Maximum Available
Commitment at such time and shall be used solely for the payment when due of
interest with respect to the Class G Certificates at the Stated Interest Rate
therefor in accordance with Section 3.06(a) and 3.06(b) of the Intercreditor
Agreement. Each Interest Advance made hereunder shall automatically reduce the
Maximum Available Commitment and the amount available to be borrowed hereunder
by subsequent Advances by the amount of such Interest Advance (subject to
reinstatement as provided in the next sentence). Subject to the provisions of
Section 3.06(g) of the Intercreditor Agreement, upon repayment to the Liquidity
Provider of all or any part of the amount of any Interest Advance made pursuant
to this Section 2.02(a), together with accrued interest thereon (as provided
herein), the Maximum Available Commitment shall be reinstated by an amount equal
to the amount of such Interest Advance so repaid, but not to exceed the Maximum
Commitment; provided, however, that the Maximum Available Commitment shall not
be so reinstated at any time if (x) both a Performing Note Deficiency exists and
a Liquidity Event of Default shall have occurred and be continuing, or (y) a
Final Advance has been made.
(b) A Non-Extension Advance shall be made by the
Liquidity Provider in a single Borrowing if this Agreement is not extended in
accordance with Section 3.06(d) of the Intercreditor Agreement (unless a
Replacement Liquidity Facility to replace this Agreement shall have been
delivered to the Borrower as contemplated by said Section 3.06(d) within the
time period specified in such Section 3.06(d)) upon delivery to the Liquidity
Provider of a written and completed Notice of Borrowing in substantially the
form of Annex II attached hereto, signed by a Responsible Officer of the
Borrower, in an amount equal to the Maximum Available Commitment at such time,
and shall be used to fund the Cash Collateral Account in accordance with such
Section 3.06(d) and Section 3.06(f) of the Intercreditor Agreement.
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(c) A Downgrade Advance shall be made in a single
Borrowing upon a downgrading of the Liquidity Provider's short-term unsecured
debt rating (with respect to ▇▇▇▇▇'▇) or short-term issuer credit rating (with
respect to S&P) (or if the Liquidity Provider does not have such a rating issued
by a given Rating Agency, long-term issuer credit rating (with respect to S&P)
or long-term unsecured debt rating (with respect to ▇▇▇▇▇'▇)) below the
applicable Threshold Rating as provided for in Section 3.06(c) of the
Intercreditor Agreement (unless a Replacement Liquidity Facility to replace this
Agreement shall have been previously delivered to the Borrower in accordance
with said Section 3.06(c)) upon delivery to the Liquidity Provider of a written
and completed Notice of Borrowing in substantially the form of Annex III
attached hereto, signed by a Responsible Officer of the Borrower, in an amount
equal to the Maximum Available Commitment at such time, and shall be used to
fund the Cash Collateral Account in accordance with Sections 3.06(c) and 3.06(f)
of the Intercreditor Agreement.
(d) A Final Advance shall be made by the Liquidity
Provider in a single Borrowing upon the receipt by the Borrower of a Termination
Notice from the Liquidity Provider pursuant to Section 6.01 hereof by delivery
to the Liquidity Provider of a written and completed Notice of Borrowing in
substantially the form of Annex IV attached hereto, signed by a Responsible
Officer of the Borrower, in an amount equal to the Maximum Available Commitment
at such time, and shall be used to fund the Cash Collateral Account in
accordance with Sections 3.06(f) and 3.06(i) of the Intercreditor Agreement.
(e) Each Borrowing shall be made on notice in writing (a
"Notice of Borrowing") in substantially the form required by Section 2.02(a),
2.02(b), 2.02(c) or 2.02(d), as the case may be, given by the Borrower to the
Liquidity Provider. Each Notice of Borrowing shall be effective upon delivery of
a copy thereof to the Liquidity Provider's office at the address specified in
Section 7.02. If a Notice of Borrowing is delivered by the Borrower in respect
of any Borrowing no later than 1:00 p.m. (New York City time) on a Business Day,
upon satisfaction of the conditions precedent set forth in Section 4.02 with
respect to a requested Borrowing, the Liquidity Provider shall make available to
the Borrower, in accordance with its payment instructions, the amount of such
Borrowing in Dollars and immediately available funds, before 4:00 p.m. (New York
City time) on such Business Day or before 1:00 p.m. (New York City time) on such
later Business Day specified in such Notice of Borrowing. If a Notice of
Borrowing is delivered by the Borrower in respect of any Borrowing after 1:00
p.m. (New York City time) on a Business Day, upon satisfaction of the conditions
precedent set forth in Section 4.02 with respect to a requested Borrowing, the
Liquidity Provider shall make available to the Borrower, in accordance with its
payment instructions, the amount of such Borrowing in Dollars and in immediately
available funds, before 1:00 p.m. (New York City time) on the first Business Day
next following the day of receipt of such Notice of Borrowing or on such later
Business Day specified by the Borrower in such Notice of Borrowing. Payments of
proceeds of a Borrowing shall be made by wire transfer of immediately available
funds to the Borrower in accordance with such wire transfer instructions as the
Borrower shall furnish from time to time to the Liquidity Provider for such
purpose. Each Notice of Borrowing shall be irrevocable and binding on the
Borrower.
(f) Upon the making of any Advance requested pursuant to
a Notice of Borrowing in accordance with the Borrower's payment instructions,
the Liquidity Provider shall be fully discharged of its obligation hereunder
with respect to such Notice of Borrowing, and the
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Liquidity Provider shall not thereafter be obligated to make any further
Advances hereunder in respect of such Notice of Borrowing to the Borrower or to
any other Person (including the Trustee or any Class G Certificateholder). If
the Liquidity Provider makes an Advance requested pursuant to a Notice of
Borrowing before 12:00 noon (New York City time) on the second Business Day
after the date of payment specified in Section 2.02(e), the Liquidity Provider
shall have fully discharged its obligations hereunder with respect to such
Advance and an event of default shall not have occurred hereunder. Following the
making of any Advance pursuant to Section 2.02(b), 2.02(c) or 2.02(d) hereof to
fund the Cash Collateral Account, the Liquidity Provider shall have no interest
in or rights to the Cash Collateral Account, such Advance or any other amounts
from time to time on deposit in the Cash Collateral Account; provided that the
foregoing shall not affect or impair the obligations of the Subordination Agent
to make the distributions contemplated by Section 3.06(e) or 3.06(f) of the
Intercreditor Agreement and provided further, that the foregoing shall not
affect or impair the rights of the Liquidity Provider to provide written
instructions with respect to the investment and reinvestment of amounts in the
Cash Collateral Account to the extent provided in Section 2.02(b) of the
Intercreditor Agreement. By paying to the Borrower proceeds of Advances
requested by the Borrower in accordance with the provisions of this Agreement,
the Liquidity Provider makes no representation as to, and assumes no
responsibility for, the correctness or sufficiency for any purpose of the amount
of the Advances so made and requested.
Section 2.03. Fees. The Borrower agrees to pay to the
Liquidity Provider the fees set forth in the Fee Letter.
Section 2.04. Reductions or Termination of the Maximum
Commitment.
(a) Automatic Reduction. Promptly following each date on
which the Required Amount is reduced as a result of a reduction in the Pool
Balance of the Class G Certificates (including by reason of a Policy Provider
Election with respect to one or more Series G Equipment Notes) or otherwise, the
Maximum Commitment shall automatically be reduced to an amount equal to such
reduced Required Amount (as calculated by the Borrower). The Borrower shall give
notice of any such automatic reduction of the Maximum Commitment to the
Liquidity Provider and American within two Business Days thereof. The failure by
the Borrower to furnish any such notice shall not affect any such automatic
reduction of the Maximum Commitment.
(b) Termination. Upon the making of any Provider Advance
or Final Advance hereunder or the occurrence of the Termination Date, the
obligation of the Liquidity Provider to make further Advances hereunder shall
automatically and irrevocably terminate, and the Borrower shall not be entitled
to request any further Borrowing hereunder.
Section 2.05. Repayments of Interest Advances or the Final
Advance. Subject to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby
agrees, without notice of an Advance or demand for repayment from the Liquidity
Provider (which notice and demand are hereby waived by the Borrower), to pay, or
to cause to be paid, to the Liquidity Provider on each date on which the
Liquidity Provider shall make an Interest Advance or the Final Advance, an
amount equal to (a) the amount of such Advance (any such Advance, until repaid,
is referred to herein as an "Unpaid Advance"), plus (b) interest on the amount
of each such Unpaid Advance in the
10
amounts and on the dates determined as provided in Section 3.07 hereof; provided
that if (i) the Liquidity Provider shall make a Provider Advance at any time
after making one or more Interest Advances which shall not have been repaid in
accordance with this Section 2.05 or (ii) this Agreement shall become a
Downgraded Facility or Non-Extended Facility at any time when unreimbursed
Interest Advances have reduced the Maximum Available Commitment to zero, then
such Interest Advances shall cease to constitute Unpaid Advances and shall be
deemed to have been changed into an Applied Downgrade Advance or an Applied
Non-Extension Advance, as the case may be, for all purposes of this Agreement
(including, without limitation, for the purpose of determining when such
Interest Advance is required to be repaid to the Liquidity Provider in
accordance with Section 2.06 and for the purposes of Section 2.06(b)). The
Borrower and the Liquidity Provider agree that the repayment in full of each
Interest Advance and Final Advance on the date such Advance is made is intended
to be a contemporaneous exchange for new value given to the Borrower by the
Liquidity Provider.
Section 2.06. Repayments of Provider Advances. (a) Amounts
advanced hereunder in respect of a Provider Advance shall be deposited in the
Cash Collateral Account and invested and withdrawn from the Cash Collateral
Account as set forth in Sections 3.06(c), 3.06(d), 3.06(e) and 3.06(f) of the
Intercreditor Agreement. Subject to Sections 2.07 and 2.09, the Borrower agrees
to pay to the Liquidity Provider, on each Regular Distribution Date, commencing
on the first Regular Distribution Date after the making of a Provider Advance,
interest on the principal amount of any such Provider Advance, in the amounts
determined as provided in Section 3.07 hereof; provided, however, that amounts
in respect of a Provider Advance withdrawn from the Cash Collateral Account for
the purpose of paying interest with respect to the Class G Certificates in
accordance with Section 3.06(f) of the Intercreditor Agreement (the amount of
any such withdrawal being (y) in the case of a Downgrade Advance, an "Applied
Downgrade Advance" and (z) in the case of a Non-Extension Advance, an "Applied
Non-Extension Advance" and, together with an Applied Downgrade Advance, an
"Applied Provider Advance") shall thereafter (subject to Section 2.06(b)) be
treated as an Interest Advance under this Agreement for all purposes hereunder,
including for purposes of determining the Applicable Liquidity Rate for interest
payable thereon and the dates on which such interest is payable; provided
further, however, that if, following the making of a Provider Advance, the
Liquidity Provider delivers a Termination Notice to the Borrower pursuant to
Section 6.01 hereof, such Provider Advance shall thereafter be treated as a
Final Advance under this Agreement for purposes of determining the Applicable
Liquidity Rate for interest payable thereon and the dates on which such interest
is payable. Subject to Sections 2.07 and 2.09 hereof, immediately upon the
withdrawal of any amounts from the Cash Collateral Account on account of a
reduction in the Required Amount, the Borrower shall repay to the Liquidity
Provider a portion of the Provider Advances in a principal amount equal to such
reduction, plus interest on the principal amount prepaid as provided in Section
3.07 hereof.
(b) At any time when an Applied Provider Advance (or any
portion thereof) is outstanding, upon the deposit in the Cash Collateral Account
of any amount pursuant to clause "third" of Section 2.04(b) of the Intercreditor
Agreement, clause "third" of Section 3.02 of the Intercreditor Agreement or
clause "fourth" of Section 3.03 of the Intercreditor Agreement (any such amount
being a "Replenishment Amount") for the purpose of replenishing or increasing
the balance thereof up to the Required Amount at such time, (i) the aggregate
outstanding principal amount of all Applied Provider Advances (and of Provider
Advances treated as an Interest
11
Advance for purposes of determining the Applicable Liquidity Rate for interest
payable thereon) shall be automatically reduced by the amount of such
Replenishment Amount and (ii) the aggregate outstanding principal amount of all
Unapplied Provider Advances shall be automatically increased by the amount of
such Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity
Facility in replacement of this Agreement in accordance with Section 3.06(e) of
the Intercreditor Agreement, the Borrower shall pay all Liquidity Obligations
then owing to the Liquidity Provider which payment shall be made first from
amounts remaining on deposit in the Cash Collateral Account after giving effect
to any Applied Provider Advance on the date of such replacement.
Section 2.07. Payments to the Liquidity Provider Under the
Intercreditor Agreement. In order to provide for payment or repayment to the
Liquidity Provider of any amounts hereunder, the Intercreditor Agreement
provides that amounts available and referred to in Articles II and III of the
Intercreditor Agreement, to the extent payable to the Liquidity Provider
pursuant to the terms of the Intercreditor Agreement (including, without
limitation, Section 3.06(f) of the Intercreditor Agreement), shall be paid to
the Liquidity Provider in accordance with the terms thereof. Amounts so paid to
the Liquidity Provider shall be applied by the Liquidity Provider to Liquidity
Obligations then due and payable in accordance with the Intercreditor Agreement
and shall discharge in full the corresponding obligations of the Borrower
hereunder.
Section 2.08. Book Entries. The Liquidity Provider shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower resulting from Advances made from time to time
and the amounts of principal and interest payable hereunder and paid from time
to time in respect thereof; provided, however, that the failure by the Liquidity
Provider to maintain such account or accounts shall not affect the obligations
of the Borrower in respect of Advances.
Section 2.09. Payments from Available Funds Only. All payments
to be made by the Borrower under this Agreement shall be made only from the
amounts that constitute Scheduled Payments, Special Payments and other payments
under the Operative Agreements, including payment under Section 4.02 of the
Participation Agreements and payments under Section 2.14 of the Indentures and
only to the extent that the Borrower shall have sufficient income or proceeds
therefrom to enable the Borrower to make payments in accordance with the terms
hereof after giving effect to the priority of payments provisions set forth in
the Intercreditor Agreement. The Liquidity Provider agrees that it will look
solely to such amounts to the extent available for distribution to it as
provided in the Intercreditor Agreement and this Agreement and that the
Borrower, in its individual capacity, is not personally liable to it for any
amounts payable or liability under this Agreement except as expressly provided
in this Agreement, the Intercreditor Agreement or any Participation Agreement.
Amounts on deposit in the Cash Collateral Account shall be available to the
Borrower to make payments under this Agreement only to the extent and for the
purposes expressly contemplated in Section 3.06(f) of the Intercreditor
Agreement.
Section 2.10. Extension of the Expiry Date; Non-Extension
Advance. No earlier than the 60th day and no later than the 40th day prior to
the then effective Expiry Date (unless
12
such Expiry Date is on or after the date that is 15 days after the Final Legal
Distribution Date for the Class G Certificates), the Borrower shall request in
writing that the Liquidity Provider extend the Expiry Date to the earlier of (i)
the date that is 15 days after the Final Legal Distribution Date for the Class G
Certificates and (ii) the date that is the day immediately preceding the 364th
day occurring after the last day of the Consent Period (as hereinafter defined).
Whether or not the Liquidity Provider has received such a request from the
Borrower, the Liquidity Provider shall by notice (the "Consent Notice") to the
Borrower during the period commencing on the date that is 60 days prior to the
then effective Expiry Date and ending on the date that is 25 days prior to such
Expiry Date (such period, the "Consent Period") advise the Borrower whether, in
its sole discretion, it agrees to so extend the Expiry Date; provided, however,
that such extension shall not be effective with respect to the Liquidity
Provider if, by notice (the "Withdrawal Notice") to the Borrower prior to the
end of the Consent Period, the Liquidity Provider revokes its Consent Notice. If
the Liquidity Provider advises the Borrower in the Consent Notice that such
Expiry Date shall not be so extended or gives a Withdrawal Notice to the
Borrower prior to the end of the Consent Period, or fails to irrevocably and
unconditionally advise the Borrower on or before the end of the Consent Period
that such Expiry Date shall be so extended (and, in each case, if the Liquidity
Provider shall not have been replaced in accordance with Section 3.06(e) of the
Intercreditor Agreement), such Expiry Date shall not be extended and the
Borrower shall be entitled on and after the date on which the Consent Period
ends (but prior to the then effective Expiry Date) to request a Non-Extension
Advance in accordance with Section 2.02(b) hereof and Section 3.06(d) of the
Intercreditor Agreement.
Subject to the proviso in the next succeeding sentence, the Liquidity
Provider shall have the right at any time in its sole discretion and without the
consent of the Borrower to extend the then effective Expiry Date to a date that
is on or before the date that is 15 days after the Final Legal Distribution Date
for the Class G Certificates by giving not less than five nor more than ten
days' prior written notice of such extension to the Borrower, the Class G
Trustee and American (which notice shall specify the effective date of such
extension (the "Extension Effective Date")). On the Extension Effective Date,
the then effective Expiry Date shall be so extended without any further act;
provided, however, that the Liquidity Provider shall meet the Threshold Rating
on the Extension Effective Date.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs. The Borrower shall pay to the
Liquidity Provider from time to time such amounts as may be necessary to
compensate the Liquidity Provider for any increased costs incurred by the
Liquidity Provider which are attributable to its making or maintaining any LIBOR
Advances hereunder or its obligation to make any such Advances hereunder, or any
reduction in any amount receivable by the Liquidity Provider under this
Agreement or the Intercreditor Agreement in respect of any such Advances or such
obligation (such increases in costs and reductions in amounts receivable being
herein called "Additional Costs"), resulting from any change after the date of
this Agreement in U.S. federal, state, municipal, or foreign laws or regulations
(including Regulation D of the Board of Governors of the Federal Reserve
System), or the adoption or making after the date of this Agreement of any
13
interpretations, directives, or requirements applying to a class of banks
including the Liquidity Provider under any U.S. federal, state, municipal, or
any foreign laws or regulations (whether or not having the force of law) by any
court, central bank or monetary authority charged with the interpretation or
administration thereof (a "Regulatory Change"), which: (1) changes the basis of
taxation of any amounts payable to the Liquidity Provider under this Agreement
in respect of any such Advances (other than with respect to Excluded Taxes); or
(2) imposes or modifies any reserve, special deposit, compulsory loan or similar
requirements relating to any extensions of credit or other assets of, or any
deposits with other liabilities of, the Liquidity Provider (including any such
Advances or any deposits referred to in the definition of LIBOR Rate or related
definitions); provided, that the Borrower shall only be obligated to pay amounts
with respect to any Additional Costs accruing from the date 120 days prior to
the date of delivery of the notice specified in the next paragraph.
The Liquidity Provider will notify the Borrower of any event
occurring after the date of this Agreement that will entitle the Liquidity
Provider to compensation pursuant to this Section 3.01 as promptly as
practicable after it obtains knowledge thereof and determines to request such
compensation, which notice shall describe in reasonable detail the calculation
of the amounts owed under this Section. Determinations by the Liquidity Provider
for purposes of this Section 3.01 of the effect of any Regulatory Change on its
costs of making or maintaining Advances or on amounts receivable by it in
respect of Advances, and of the additional amounts required to compensate the
Liquidity Provider in respect of any Additional Costs, shall be prima facie
evidence of the amount owed under this Section.
Section 3.02. Capital Adequacy. If (1) the adoption, after the
date hereof, of any applicable governmental law, rule or regulation regarding
capital adequacy, (2) any change, after the date hereof, in the interpretation
or administration of any such law, rule or regulation by any central bank or
other governmental authority charged with the interpretation or administration
thereof or (3) compliance by the Liquidity Provider or any corporation
controlling the Liquidity Provider with any applicable guideline or request of
general applicability, issued after the date hereof, by any central bank or
other governmental authority (whether or not having the force of law) that
constitutes a change of the nature described in clause (2), has the effect of
requiring an increase in the amount of capital required to be maintained by the
Liquidity Provider or any corporation controlling the Liquidity Provider, and
such increase is based upon the Liquidity Provider's obligations hereunder and
other similar obligations, the Borrower shall pay to the Liquidity Provider from
time to time such additional amount or amounts as are necessary to compensate
the Liquidity Provider for such portion of such increase as shall be reasonably
allocable to the Liquidity Provider's obligations to the Borrower hereunder;
provided, that the Borrower shall only be obligated to pay amounts with respect
to any such costs accruing from the date 120 days prior to the date of delivery
of the notice specified in the next paragraph.
The Liquidity Provider will notify the Borrower of any event
occurring after the date of this Agreement that will entitle the Liquidity
Provider to compensation pursuant to this Section 3.02 as promptly as
practicable after it obtains knowledge thereof and determines to request such
compensation, which notice shall describe in reasonable detail the calculation
of the amounts owed under this Section. Determinations by the Liquidity Provider
for purposes of this Section 3.02 of the effect of any increase in the amount of
capital required to be maintained by
14
the Liquidity Provider and of the amount allocable to the Liquidity Provider's
obligations to the Borrower hereunder shall be prima facie evidence of the
amounts owed under this Section.
Section 3.03. Payments Free of Deductions. (a) All payments
made by the Borrower under this Agreement shall be made without reduction or
withholding for or on account of any present or future Taxes of any nature
whatsoever now or hereafter imposed, levied, collected, withheld or assessed,
other than Excluded Withholding Taxes (such non-excluded Taxes being referred to
herein, collectively, as "Non-Excluded Taxes" and, individually, as a
"Non-Excluded Tax"). If any Taxes are required to be withheld from any amounts
payable to the Liquidity Provider under this Agreement, (i) the Borrower shall
within the time prescribed therefor by applicable law pay to the appropriate
governmental or taxing authority the full amount of any such Taxes (including
any additional Tax required to be deducted or withheld in respect of the
additional amounts payable under clause (ii) hereof) and make such reports or
returns in connection therewith at the time or times and in the manner
prescribed by applicable law, and (ii) in the case of Non-Excluded Taxes, the
amounts so payable to the Liquidity Provider shall be increased to the extent
necessary to yield to the Liquidity Provider (after deduction or withholding for
or on account of all Non-Excluded Taxes) interest or any other such amounts
payable under this Agreement at the rates or in the amounts specified in this
Agreement. If the Liquidity Provider is not organized under the laws of the
United States or any State thereof, to the extent it is eligible to do so, the
Liquidity Provider agrees to provide to the Borrower, prior to the first date
any amount is payable to it hereunder, two executed original copies of Internal
Revenue Service Form W-8BEN or W-8ECI, as appropriate, or any successor or other
form prescribed by the Internal Revenue Service, certifying that the Liquidity
Provider is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement. In addition, the
Liquidity Provider will provide, from time to time upon the reasonable request
of the Borrower, such additional forms or documentation as may be necessary to
establish an available exemption from (or an entitlement to a reduced rate of)
withholding Tax on payments hereunder. Within 30 days after the date of each
payment hereunder, the Borrower shall furnish to the Liquidity Provider the
original or certified copy of (or other documentary evidence of) the payment of
the Non-Excluded Taxes applicable to such payment.
(b) All Advances made by the Liquidity Provider under this
Agreement shall be made free and clear of, and without reduction for or on
account of, any Taxes that are imposed by a jurisdiction in which the Liquidity
Provider is organized, has its Lending Office or maintains its principal place
of business. If any such Taxes are required to be withheld or deducted from any
Advances, the Liquidity Provider shall (i) within the time prescribed therefor
by applicable law pay to the appropriate governmental or taxing authority the
full amount of any such Taxes (and any additional Taxes in respect of the
additional amounts payable under clause (ii) hereof) and make such reports or
returns in connection therewith at the time or times and in the manner
prescribed by applicable law, and (ii) pay to the Borrower an additional amount
which (after deduction of all such Taxes) shall be sufficient to yield to the
Borrower the full amount that would have been received by it had no such
withholding or deduction been required. Within 30 days after the date of each
payment hereunder, the Liquidity Provider shall furnish to the Borrower the
original or a certified copy of (or other documentary evidence of) the payment
of the Taxes applicable to such payment.
15
(c) If any exemption from, or reduction in the rate of, any
Taxes required to be deducted or withheld from amounts payable by the Liquidity
Provider hereunder is reasonably available to the Borrower to establish that
payments under this Agreement are exempt from (or entitled to a reduced rate of)
tax, the Borrower shall deliver to the Liquidity Provider such form or forms and
such other evidence of the eligibility of the Borrower for such exemption or
reduction as the Liquidity Provider may reasonably identify to the Borrower as
being required as a condition to exemption from, or reduction in the rate of,
any such Taxes. The Borrower shall, for federal income tax purposes and for all
purposes hereunder, treat such payments as Interest Advances, and, as such, will
treat such payments as loans made by the Liquidity Provider to the Borrower,
unless otherwise required by law.
Section 3.04. Payments. The Borrower shall make or cause to be
made each payment to the Liquidity Provider under this Agreement so as to cause
the same to be received by the Liquidity Provider not later than 1:00 p.m. (New
York City time) on the day when due. The Borrower shall make all such payments
in Dollars, to the Liquidity Provider in immediately available funds, by wire
transfer to the account of Citibank, N.A. at Citibank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ABA #▇▇▇▇▇▇▇▇▇, Account # 4063-2387, Reference: American
Airlines Pass Through Trust, Series 2003-1G, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇; or to such
other account as the Liquidity Provider may from time to time direct the
Subordination Agent.
Section 3.05. Computations. All computations of interest based
on the Base Rate shall be made on the basis of a year of 365 or 366 days, as the
case may be, and all computations of interest based on the LIBOR Rate shall be
made on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest is payable.
Section 3.06. Payment on Non-Business Days. Whenever any
payment to be made hereunder shall be stated to be due on a day other than a
Business Day, such payment shall be made on the next succeeding Business Day and
no additional interest shall be due as a result (and if so made, shall be deemed
to have been made when due). If any payment in respect of interest on an Advance
is so deferred to the next succeeding Business Day, such deferral shall not
delay the commencement of the next Interest Period for such Advance (if such
Advance is a LIBOR Advance) or reduce the number of days for which interest will
be payable on such Advance on the next interest payment date for such Advance.
Section 3.07. Interest. (a) Subject to Sections 2.07 and 2.09,
the Borrower shall pay, or shall cause to be paid, without duplication, interest
on (i) the unpaid principal amount of each Advance from and including the date
of such Advance (or, in the case of an Applied Provider Advance, from and
including the date on which the amount thereof was withdrawn from the Cash
Collateral Account to pay interest on the Class G Certificates) to but excluding
the date such principal amount shall be paid in full (or, in the case of an
Applied Provider Advance, the date on which the Cash Collateral Account is fully
replenished in respect of such Advance) and (ii) any other amount due hereunder
(whether fees, commissions, expenses or other amounts or, to the extent
permitted by law, installments of interest on Advances or any such other amount)
that is not paid when due (whether at stated maturity, by acceleration or
otherwise) from and including the due date thereof to but excluding the date
such amount is paid in full, in each such case, at a fluctuating interest rate
per annum for each day equal to the Applicable Liquidity
16
Rate (as defined below) for such Advance or such other amount, as the case may
be, as in effect for such day, but in no event at a rate per annum greater than
the maximum rate permitted by applicable law; provided, however, that, if at any
time the otherwise applicable interest rate as set forth in this Section 3.07
shall exceed the maximum rate permitted by applicable law, then to the maximum
extent permitted by applicable law any subsequent reduction in such interest
rate will not reduce the rate of interest payable pursuant to this Section 3.07
below the maximum rate permitted by applicable law until the total amount of
interest accrued equals the absolute amount of interest that would have accrued
(without additional interest thereon) if such otherwise applicable interest rate
as set forth in this Section 3.07 had at all relevant times been in effect.
(b) Each Advance (including, without limitation, each
outstanding Unapplied Provider Advance) will be either a Base Rate Advance or a
LIBOR Advance as provided in this Section 3.07. Each such Advance will be a Base
Rate Advance for the period from the date of its borrowing to (but excluding)
the third Business Day following the Liquidity Provider's receipt of the Notice
of Borrowing for such Advance. Thereafter, such Advance shall be a LIBOR
Advance.
(c) Each LIBOR Advance shall bear interest during each
Interest Period at a rate per annum equal to the LIBOR Rate for such Interest
Period plus the Applicable Margin for such LIBOR Advance, payable in arrears on
the last day of such Interest Period and, in the event of the payment of
principal of such LIBOR Advance on a day other than such last day, on the date
of such payment (to the extent of interest accrued on the amount of principal
repaid).
(d) Each Base Rate Advance shall bear interest at a rate
per annum equal to the Base Rate plus the Applicable Margin for such Base Rate
Advance, payable in arrears on each Regular Distribution Date and, in the event
of the payment of principal of such Base Rate Advance on a day other than a
Regular Distribution Date, on the date of such payment (to the extent of
interest accrued on the amount of principal repaid).
(e) Each amount not paid when due hereunder (whether
fees, commissions, expenses or other amounts or, to the extent permitted by
applicable law, installments of interest on Advances but excluding Advances)
shall bear interest at a rate per annum equal to the Base Rate plus 4.50% until
paid.
(f) Each change in the Base Rate shall become effective
immediately. The rates of interest specified in this Section 3.07 with respect
to any Advance or other amount shall be referred to as the "Applicable Liquidity
Rate".
Section 3.08. Replacement of Borrower. From time to time and
subject to the successor Borrower's meeting the eligibility requirements set
forth in Section 6.09 of the Intercreditor Agreement applicable to the
Subordination Agent, upon the effective date and time specified in a written and
completed Notice of Replacement Subordination Agent in substantially the form of
Annex VI attached hereto (a "Notice of Replacement Subordination Agent")
delivered to the Liquidity Provider by the then Borrower, the successor Borrower
designated therein shall become the Borrower for all purposes hereunder.
17
Section 3.09. Funding Loss Indemnification. The Borrower shall
pay to the Liquidity Provider, upon the request of the Liquidity Provider, such
amount or amounts as shall be sufficient (in the reasonable opinion of the
Liquidity Provider) to compensate it for any loss, cost, or expense incurred by
reason of the liquidation or redeployment of deposits or other funds acquired by
the Liquidity Provider to fund or maintain any LIBOR Advance (but excluding loss
of anticipated profits) incurred as a result of:
(1) Any repayment of a LIBOR Advance on a date other than
the last day of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance
on the date for borrowing specified in the relevant notice under Section 2.02.
Section 3.10. Illegality. Notwithstanding any other provision
in this Agreement, if any change in any law, rule or regulation applicable to or
binding on the Liquidity Provider, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by the Liquidity Provider (or its Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for the Liquidity
Provider (or its Lending Office) to maintain or fund its LIBOR Advances, then
upon notice to the Borrower and American by the Liquidity Provider, the
outstanding principal amount of the LIBOR Advances shall be converted to Base
Rate Advances (a) immediately upon demand of the Liquidity Provider, if such
change or compliance with such request, in the reasonable judgment of the
Liquidity Provider, requires immediate conversion; or (b) at the expiration of
the last Interest Period to expire before the effective date of any such change
or request.
Section 3.11. Mitigation. If a condition arises or an event
occurs which would, or would upon the giving of notice, result in the payment of
any additional costs or amounts pursuant to Section 3.01, 3.02 or 3.03 or
require the conversion of any Advance pursuant to Section 3.10, the Liquidity
Provider, promptly upon becoming aware of the same, shall notify the Borrower
and shall take such steps as may be reasonable to it to mitigate the effects of
such condition or event, including the designation of a different Lending Office
or furnishing of the proper certificates under any applicable tax laws, tax
treaties and conventions to the extent that such certificates are legally
available to the Liquidity Provider; provided, that, the Liquidity Provider
shall be under no obligation to take any step that, in its good-faith opinion
would (i) result in its incurring any additional costs in performing its
obligations hereunder unless the Borrower has agreed to reimburse it therefor or
(ii) be otherwise disadvantageous to the Liquidity Provider in a significant
respect in the reasonable judgment of the Liquidity Provider.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section
2.01. Section 2.01 of this Agreement shall become effective on and as of the
first date (the "Effective Date")
18
on which the following conditions precedent have been satisfied (or waived by
the appropriate party or parties):
(a) The Liquidity Provider shall have received on or
before the Closing Date each of the following, and in the case of each document
delivered pursuant to paragraphs (i), (ii), (iii) and (iv), each in form and
substance satisfactory to the Liquidity Provider:
(i) This Agreement duly executed on behalf of the
Borrower;
(ii) The Intercreditor Agreement duly executed on behalf
of each of the parties thereto (other than the
Liquidity Provider);
(iii) Fully executed copies of each of the Operative
Agreements executed and delivered on or before the
Closing Date (other than this Agreement and the
Intercreditor Agreement);
(iv) A fully executed copy of the Fee Letter;
(v) A copy of the Prospectus Supplement and specimen
copies of the Class G Certificates; and
(vi) An executed copy of each document, instrument,
certificate and opinion delivered on or before the
Closing Date pursuant to the Class G Trust Agreement,
the Intercreditor Agreement and the other Operative
Agreements (in the case of each such opinion, either
addressed to the Liquidity Provider or accompanied by
a letter from the counsel rendering such opinion to
the effect that the Liquidity Provider is entitled to
rely on such opinion as of its date as if it were
addressed to the Liquidity Provider);
(vii) Evidence that there shall have been made and shall be
in full force and effect, all filings, recordings
and/or registrations, and there shall have been given
or taken any notice or other similar action as may be
reasonably necessary or, to the extent reasonably
requested by the Liquidity Provider, reasonably
advisable, in order to establish, perfect, protect
and preserve the right, title and interest, remedies,
powers, privileges, liens and security interests of,
or for the benefit of, the Class G Trustee, the
Borrower and the Liquidity Provider created by the
Operative Agreements executed and delivered on or
prior to the Closing Date; and
(viii) Such other documents, instruments, opinions and
approvals pertaining to the transactions contemplated
hereby or by the other Operative Agreements as the
Liquidity Provider shall have reasonably requested.
(b) The following statement shall be true on and as of
the Effective Date: no event shall have occurred and be continuing, or would
result from the entering into of this Agreement or the making of any Advance
that constitutes a Liquidity Event of Default.
19
(c) The Liquidity Provider shall have received payment in
full of all fees and other sums required to be paid to or for the account of the
Liquidity Provider on or prior to the Effective Date pursuant to the Fee Letter
applicable to this Agreement.
(d) All conditions precedent to the issuance of the Class
G Certificates under the Class G Trust Agreement shall have been satisfied or
waived, and all conditions precedent to the purchase of the Class G Certificates
by the Underwriters under the Underwriting Agreement shall have been satisfied
(unless any of such conditions precedent under the Underwriting Agreement shall
have been waived by the Underwriters).
(e) The Borrower and American shall have received a
certificate, dated the Effective Date, signed by a duly authorized
representative of the Liquidity Provider, certifying that all conditions
precedent specified in this Section 4.01 have been satisfied or waived by the
Liquidity Provider.
Section 4.02. Conditions Precedent to Borrowing. The
obligation of the Liquidity Provider to make an Advance on the occasion of each
Borrowing shall be subject to the conditions precedent that the Effective Date
shall have occurred and, prior to the time of such Borrowing, the Borrower shall
have delivered a Notice of Borrowing which conforms to the terms and conditions
of this Agreement and has been completed as may be required by the relevant form
of the Notice of Borrowing for the type of Advance requested.
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower. So long
as any Advance shall remain unpaid or the Liquidity Provider shall have any
Maximum Commitment hereunder or the Borrower shall have any obligation to pay
any amount to the Liquidity Provider hereunder, the Borrower will, unless the
Liquidity Provider shall otherwise consent in writing:
(a) Performance of This and Other Agreements. Punctually
pay or cause to be paid all amounts payable by it under this Agreement and the
other Operative Agreements and observe and perform in all material respects the
conditions, covenants and requirements applicable to it contained in this
Agreement and the other Operative Agreements.
(b) Reporting Requirements. Furnish to the Liquidity
Provider with reasonable promptness, such other information and data with
respect to the transactions contemplated by the Operative Agreements as from
time to time may be reasonably requested by the Liquidity Provider; and permit
the Liquidity Provider, upon reasonable notice, to inspect the Borrower's books
and records with respect to such transactions and to meet with officers and
employees of the Borrower to discuss such transactions.
(c) Certain Operative Agreements. Furnish to the
Liquidity Provider with reasonable promptness, such Operative Agreements entered
into after the date hereof as from time to time may be reasonably requested by
the Liquidity Provider.
20
Section 5.02. Negative Covenants of the Borrower. Subject to
the provisions of Sections 7.01(a) and (b) of the Intercreditor Agreement, so
long as any Advance shall remain unpaid or the Liquidity Provider shall have any
Maximum Commitment hereunder or the Borrower shall have any obligation to pay
any amount to the Liquidity Provider hereunder, the Borrower will not appoint or
permit or suffer to be appointed any successor Borrower without the prior
written consent of the Liquidity Provider, which consent shall not be
unreasonably withheld or delayed.
Section 5.03. Covenants Regarding Certain Notices. Promptly
following any time that (x) the Class G Certificates have been paid in full (or
provision has been made for such payment in accordance with the Intercreditor
Agreement and the Class G Trust Agreement) (y) each of the Indentures has been
terminated with respect to all of the Equipment Notes issued thereunder as
contemplated by clause (i) of Section 10.01(a) of such Indenture or (z) the
Class G Certificates are otherwise no longer entitled to the benefits of this
Agreement, the Borrower shall deliver to the Liquidity Provider the certificate
referred to in clause (ii) of the definition of Termination Date. Promptly
following any time that a Replacement Liquidity Facility has been substituted
for this Agreement pursuant to Section 3.06(e) of the Intercreditor Agreement,
the Borrower shall deliver to the Liquidity Provider the certificate referred to
in clause (iii) of the definition of Termination Date.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default. If both (x) a
Performing Note Deficiency exists and (y) a Liquidity Event of Default shall
have occurred and be continuing, the Liquidity Provider may, in its discretion,
deliver to the Borrower a Termination Notice, the effect of which shall be to
cause (i) the obligation of the Liquidity Provider to make Advances hereunder to
expire at the close of business on the fifth Business Day after the date on
which such Termination Notice is received by the Borrower, (ii) the Borrower to
promptly request, and the Liquidity Provider to promptly make, a Final Advance
in accordance with Section 2.02(d) hereof and Section 3.06(i) of the
Intercreditor Agreement, (iii) all other outstanding Advances to be
automatically converted into Final Advances for all purposes hereunder,
including, without limitation, determining the Applicable Liquidity Rate for
interest payable thereon, and (iv) subject to Sections 2.07 and 2.09 hereof, all
Advances (including, without limitation, any Provider Advance and Applied
Provider Advance), any accrued interest thereon and any other amounts
outstanding hereunder to become immediately due and payable to the Liquidity
Provider.
21
ARTICLE VII
MISCELLANEOUS
Section 7.01. No Oral Modifications or Continuing Waivers. No
terms or provisions of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the Borrower
and the Liquidity Provider and any other Person whose consent is required
pursuant to this Agreement; provided that no such change or other action shall
affect the payment obligations of American without its prior written consent;
and any waiver of the terms hereof shall be effective only in the specific
instance and for the specific purpose given.
Section 7.02. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices required or permitted under the terms
and provisions of this Agreement shall be in English and in writing, and any
such notice may be given by United States registered or certified mail, courier
service or facsimile or any other customary means of communication, and any such
notice shall be effective when delivered (or, if mailed, three Business Days
after deposit, postage prepaid, in the first class United States mail and, if
delivered by facsimile, upon completion of transmission and confirmation by the
sender (by a telephone call to a representative of the recipient or by machine
confirmation) that the transmission was received):
Borrower: U.S. Bank Trust National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Division
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Liquidity Provider: CITIBANK, N.A.
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Reference: America Airlines Pass Through
Trust 2003-1G
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
CITIBANK, N.A. Global Aviation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
22
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy of any Notice of Borrowing to:
CITIBANK, N.A. Global Aviation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Borrower or the Liquidity Provider by notice to the other, may designate
additional or different addresses for subsequent notices or communications.
Section 7.03. No Waiver; Remedies. No failure on the part of
the Liquidity Provider to exercise, and no delay in exercising, any right under
this Agreement shall operate as a waiver thereof; nor shall any single or
partial exercise of any right under this Agreement preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 7.04. Further Assurances. The Borrower agrees to do
such further acts and things and to execute and deliver to the Liquidity
Provider such additional assignments, agreements, powers and instruments as the
Liquidity Provider may reasonably require or deem advisable to carry into effect
the purposes of this Agreement and the other Operative Agreements or to better
assure and confirm unto the Liquidity Provider its rights, powers and remedies
hereunder and under the other Operative Agreements.
Section 7.05. Indemnification; Survival of Certain Provisions.
The Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Section 4.02 of the Participation Agreements. In addition,
the Borrower agrees to indemnify, protect, defend and hold harmless each
Liquidity Indemnitee from and against and shall pay on demand, all Expenses of
any kind or nature whatsoever (other than any Expenses of the nature described
in Section 3.01, 3.02 or 7.07 hereof or in the Fee Letter (regardless of whether
indemnified against pursuant to said Sections or in such Fee Letter)), that may
be imposed on, incurred by or asserted against any Liquidity Indemnitee, in any
way relating to, resulting from, or arising out of or in connection with any
action, suit or proceeding by any third party against such Liquidity Indemnitee
and relating to this Agreement, the Fee Letter, the Intercreditor Agreement or
any Participation Agreement; provided, however, that the Borrower shall not be
required to indemnify, protect, defend and hold harmless any Liquidity
Indemnitee in respect of any Expense of such Liquidity Indemnitee to the extent
such Expense is (i) attributable to the gross negligence or willful misconduct
of such Liquidity Indemnitee or any other Liquidity Indemnitee (as actually and
finally determined by a final, non-appealable judgment of a court of competent
jurisdiction); (ii) ordinary and usual operating overhead expense (excluding,
without limitation, costs and expenses of any outside counsel, consultant or
agent); (iii) attributable to the failure by
23
the Liquidity Provider to perform or observe any agreement, covenant or
condition on its part to be performed or observed in this Agreement or the
Intercreditor Agreement, or (iv) a Tax. The indemnities contained in Section
4.02 of the Participation Agreements and the provisions of Sections 3.01, 3.02,
3.03, 3.09, 7.05 and 7.07 hereof shall survive the termination of this
Agreement.
Section 7.06. Liability of the Liquidity Provider. (a) Neither
the Liquidity Provider nor any of its officers, employees, directors or
Affiliates shall be liable or responsible for: (i) the use which may be made of
the Advances or any acts or omissions of the Borrower or any beneficiary or
transferee in connection therewith; (ii) the validity, sufficiency or
genuineness of documents relating to this Agreement or the Intercreditor
Agreement, or of any endorsement thereon, even if such documents should prove to
be in any or all respects invalid, insufficient, fraudulent or forged; or (iii)
the making of Advances by the Liquidity Provider against delivery of a Notice of
Borrowing and other documents which do not comply with the terms hereof;
provided, however, that the Borrower shall have a claim against the Liquidity
Provider, and the Liquidity Provider shall be liable to the Borrower, to the
extent of any damages suffered by the Borrower which were the result of (A) the
Liquidity Provider's willful misconduct or gross negligence in determining
whether documents presented hereunder comply with the terms hereof, or (B) any
breach by the Liquidity Provider of any of the terms of this Agreement or the
Intercreditor Agreement in a material respect, including, but not limited to,
the Liquidity Provider's failure to make lawful payment hereunder after the
delivery to it by the Borrower of a Notice of Borrowing strictly complying with
the terms and conditions hereof, in the case of either clause (A) or (B), as
actually and finally determined by a final, non-appealable judgment of a court
of competent jurisdiction. In no event, however, shall the Liquidity Provider be
liable on any theory of liability for any special, indirect, consequential or
punitive damages (including, without limitation, any loss of profits, business
or anticipated savings).
(b) Neither the Liquidity Provider nor any of its
officers, employees, directors or Affiliates shall be liable or responsible in
any respect for (i) any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with this Agreement or any Notice of Borrowing delivered hereunder,
or (ii) any action, inaction or omission which may be taken by it in good faith,
absent willful misconduct or gross negligence (in which event the extent of the
Liquidity Provider's potential liability to the Borrower shall be limited as set
forth in the immediately preceding paragraph), in connection with this Agreement
or any Notice of Borrowing.
Section 7.07. Costs, Expenses and Taxes. The Borrower agrees
promptly to pay, or cause to be paid (A) on the Effective Date and on such later
date or dates on which the Liquidity Provider shall make demand, all reasonable
out-of-pocket costs and expenses (including, without limitation, the reasonable
fees and expenses of outside counsel for the Liquidity Provider) of the
Liquidity Provider in connection with the preparation, negotiation, execution,
delivery, filing and recording of this Agreement, any other Operative Agreement
and any other documents which may be delivered in connection with this Agreement
and (B) on demand, all reasonable costs and expenses (including reasonable
counsel fees and expenses) of the Liquidity Provider in connection with (i) the
enforcement of this Agreement or any other Operative Agreement, (ii) any
Liquidity Event of Default or any collection, bankruptcy, insolvency and other
enforcement proceedings in connection therewith, (iii) the modification or
24
amendment of, or supplement to, this Agreement or any other Operative Agreement
or such other documents which may be delivered in connection herewith or
therewith (whether or not the same shall become effective) or any waiver or
consent thereunder (whether or not the same shall become effective) or (iv) any
action or proceeding relating to any order, injunction, or other process or
decree restraining or seeking to restrain the Liquidity Provider from paying any
amount under this Agreement, the Intercreditor Agreement or any other Operative
Agreement or otherwise affecting the application of funds in the Cash Collateral
Account. In addition, the Borrower shall pay any and all recording, stamp and
other similar taxes and fees payable or determined to be payable in the United
States in connection with the execution, delivery, filing and recording of this
Agreement, any other Operative Agreement and such other documents, and agrees to
hold the Liquidity Provider harmless from and against any and all liabilities
with respect to or resulting from any delay in paying or omission to pay such
taxes or fees.
Section 7.08. Binding Effect; Participations.(a) This
Agreement shall be binding upon and inure to the benefit of the Borrower and the
Liquidity Provider and their respective successors and permitted assigns, except
that neither the Liquidity Provider (except as otherwise provided in this
Section 7.08) nor (except as contemplated by Section 3.08) the Borrower shall
have the right to assign, pledge or otherwise transfer its rights or obligations
hereunder or any interest herein, subject to the Liquidity Provider's right to
grant Participations pursuant to Section 7.08(b).
(b) The Liquidity Provider agrees that it will not grant any
participation (including, without limitation, a "risk participation") (any such
participation, a "Participation") in or to all or a portion of its rights and
obligations hereunder or under the other Operative Agreements, unless all of the
following conditions are satisfied: (i) such Participation is to a Permitted
Transferee, (ii) such Participation is made in accordance with all applicable
laws, including, without limitation, the Securities Act of 1933, as amended, the
Trust Indenture Act of 1939, as amended, and any other applicable laws relating
to the transfer of similar interests and (iii) such Participation shall not be
made under circumstances that require registration under the Securities Act of
1933, as amended, or qualification of any indenture under the Trust Indenture
Act of 1939, as amended. Notwithstanding any such Participation, the Liquidity
Provider agrees that (1) the Liquidity Provider's obligations under the
Operative Agreements shall remain unchanged, and such participant shall have no
rights or benefits as against American or the Borrower or under any Operative
Agreement, (2) the Liquidity Provider shall remain solely responsible to the
other parties to the Operative Agreements for the performance of such
obligations, (3) the Liquidity Provider shall remain the maker of any Advances,
and the other parties to the Operative Agreements shall continue to deal solely
and directly with the Liquidity Provider in connection with the Advances and the
Liquidity Provider's rights and obligations under the Operative Agreements, (4)
the Liquidity Provider shall be solely responsible for any withholding Taxes or
any filing or reporting requirements relating to such Participation and shall
hold the Borrower and American and their respective successors, permitted
assigns, affiliates, agents and servants harmless against the same and (5)
neither American nor the Borrower shall be required to pay to the Liquidity
Provider any amount under Section 3.01, Section 3.02 or Section 3.03 greater
than it would have been required to pay had there not been any grant of a
Participation by the Liquidity Provider. The Liquidity Provider may, in
connection with any Participation or proposed Participation pursuant to this
Section 7.08(b), disclose to the participant or proposed participant any
information relating to the Operative Agreements or to
25
the parties thereto furnished to the Liquidity Provider thereunder or in
connection therewith and permitted to be disclosed by the Liquidity Provider;
provided, however, that prior to any such disclosure, the participant or
proposed participant shall agree in writing for the express benefit of the
Borrower and American to preserve the confidentiality of any confidential
information included therein (subject to customary exceptions).
(c) Notwithstanding the other provisions of this Section
7.08, the Liquidity Provider may assign and pledge all or any portion of the
Advances owing to it to any Federal Reserve Bank or the United States Treasury
as collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank, provided that any payment in respect of such assigned Advances made by the
Borrower to the Liquidity Provider in accordance with the terms of this
Agreement shall satisfy the Borrower's obligations hereunder in respect of such
assigned Advance to the extent of such payment. No such assignment shall release
the Liquidity Provider from its obligations hereunder.
Section 7.09. Severability. Any provision of this Agreement
which is prohibited, unenforceable or not authorized in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
Section 7.10. GOVERNING LAW. THIS AGREEMENT HAS BEEN DELIVERED
IN THE STATE OF NEW YORK AND THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.11. Submission to Jurisdiction; Waiver of Jury
Trial; Waiver of Immunity. (a) Each of the parties hereto, to the extent it may
do so under applicable law, for purposes hereof hereby (i) irrevocably submits
itself to the non-exclusive jurisdiction of the courts of the State of New York
sitting in the City of New York and to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York, for the
purposes of any suit, action or other proceeding arising out of this Agreement,
the subject matter hereof or any of the transactions contemplated hereby brought
by any party or parties hereto or thereto, or their successors or permitted
assigns and (ii) waives, and agrees not to assert, by way of motion, as a
defense, or otherwise, in any such suit, action or proceeding, that the suit,
action or proceeding is brought in an inconvenient forum, that the venue of the
suit, action or proceeding is improper or that this Agreement or the subject
matter hereof or any of the transactions contemplated hereby may not be enforced
in or by such courts.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY
AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT
26
MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING ESTABLISHED,
including, without limitation, contract claims, tort claims, breach of duty
claims and all other common law and statutory claims. The Borrower and the
Liquidity Provider each warrant and represent that it has reviewed this waiver
with its legal counsel, and that it knowingly and voluntarily waives its jury
trial rights following consultation with such legal counsel. THIS WAIVER IS
IRREVOCABLE, AND CANNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT.
Section 7.12. Execution in Counterparts. This Agreement may be
executed in any number of counterparts (and each party shall not be required to
execute the same counterpart). Each counterpart of this Agreement including a
signature page or pages executed by each of the parties hereto shall be an
original counterpart of this Agreement, but all of such counterparts together
shall constitute one instrument.
Section 7.13. Entirety. This Agreement, the Intercreditor
Agreement and the other Operative Agreements to which the Liquidity Provider is
a party constitute the entire agreement of the parties hereto with respect to
the subject matter hereof and supersede all prior understandings and agreements
of such parties.
Section 7.14. Headings. The headings of the various Articles
and Sections herein and in the Table of Contents hereto are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section 7.15. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE
ADVANCES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF
THE LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO
DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL
BE ABSOLUTE, UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN
EACH CASE STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
27
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first set forth above.
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Subordination Agent, as agent and trustee
for the Class G Trust, as Borrower
By /s/ Alison ▇.▇. ▇▇▇▇▇▇
------------------------------------
Name: Alison ▇.▇. ▇▇▇▇▇▇
Title: Vice President
CITIBANK, N.A.,
as Liquidity Provider
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
28
Annex I to Revolving Credit Agreement
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned borrower (the "Borrower"), hereby certifies to Citibank, N.A. (the
"Liquidity Provider"), with reference to the Revolving Credit Agreement
(2003-1G) dated as of July 8, 2003, between the Borrower and the Liquidity
Provider (the "Liquidity Agreement"; the terms defined therein and not otherwise
defined herein being used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of an Interest Advance by the Liquidity Provider to be
used for the payment of the interest on the Class G Certificates which
is payable on ____________, ____ (the "Distribution Date") in
accordance with the terms and provisions of the Class G Trust Agreement
and the Class G Certificates, which Advance is requested to be made on
____________, ____. The Interest Advance should be remitted to [name of
bank/wire instructions/ABA number] in favor of account number [ __ ],
reference [ __ ].
(3) The amount of the Interest Advance requested hereby
(i) is $_______________.__, to be applied in respect of the payment of
the interest which is due and payable on the Class G Certificates on
the Distribution Date, (ii) does not include any amount with respect to
the payment of principal of, or premium on, the Class G Certificates,
the Class C Certificates or the Class D Certificates, or interest on
the Class C Certificates or Class D Certificates, (iii) was computed in
accordance with the provisions of the Class G Certificates, the Class G
Trust Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), (iv) does not exceed the
Maximum Available Commitment on the date hereof, (v) does not include
any amounts paid in respect of any Series G Equipment Note as to which
a Policy Provider Election has been made, and (vi) has not been and is
not the subject of a prior or contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will apply the same in
accordance with the terms of Section 3.06(b) of the Intercreditor
Agreement, (b) no portion of such amount shall be applied by the
Borrower for any other purpose and (c) no portion of such amount until
so applied shall be commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, the making of the Interest Advance as requested by this
Notice of Borrowing shall automatically reduce, subject to reinstatement in
accordance with the terms of the Liquidity Agreement, the Maximum Available
Commitment by an amount equal to the amount of the Interest Advance requested to
be made hereby as set forth in clause (i) of paragraph (3) of this Notice of
Borrowing and such reduction shall automatically result in corresponding
reductions in the amounts available to be borrowed pursuant to a subsequent
Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ______.
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Subordination Agent, as Borrower
By:___________________________________
Name:
Title:
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest Advance
Notice of Borrowing]
Annex II to
Revolving Credit Agreement
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned borrower (the "Borrower"), hereby certifies to Citibank, N.A. (the
"Liquidity Provider"), with reference to the Revolving Credit Agreement
(2003-1G) dated as of July 8, 2003, between the Borrower and the Liquidity
Provider (the "Liquidity Agreement"; the terms defined therein and not otherwise
defined herein being used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Non-Extension Advance by the Liquidity Provider
to be used for the funding of the Cash Collateral Account in accordance
with Section 3.06(d) of the Intercreditor Agreement, which Advance is
requested to be made on __________, ____. The Non-Extension Advance
should be remitted to [name of bank/wire instructions/ABA number] in
favor of account number [ __ ], reference [ __ ].
(3) The amount of the Non-Extension Advance requested
hereby (i) is $_______________.__, which equals the Maximum Available
Commitment on the date hereof and is to be applied in respect of the
funding of the Cash Collateral Account in accordance with Sections
3.06(d) and 3.06(f) of the Intercreditor Agreement, (ii) does not
include any amount with respect to the payment of the principal of, or
premium on, the Class G Certificates, the Class C Certificates or Class
D Certificates, or interest on the Class C Certificates or Class D
Certificates, (iii) was computed in accordance with the provisions of
the Class G Certificates, the Class G Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto
as Schedule I), and (iv) has not been and is not the subject of a prior
or contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such amount in
the Cash Collateral Account and apply the same in accordance with the
terms of Sections 3.06(d) and 3.06(f) of the Intercreditor Agreement,
(b) no portion of such amount shall be applied by the Borrower for any
other purpose and (c) no portion of such amount until so applied shall
be commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Non-Extension Advance as requested by
this Notice of Borrowing shall automatically and irrevocably terminate the
obligation of the Liquidity Provider to make further Advances under the
Liquidity Agreement; and (B) following the making by the Liquidity Provider of
the Non-Extension Advance requested by this Notice of Borrowing, the Borrower
shall not be entitled to request any further Advances under the Liquidity
Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of ___________, _______.
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Subordination Agent, as Borrower
By:___________________________________
Name:
Title:
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Non-Extension Advance
Notice of Borrowing]
Annex III to
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned borrower (the "Borrower"), hereby certifies to Citibank, N.A. (the
"Liquidity Provider"), with reference to the Revolving Credit Agreement
(2003-1G) dated as of July 8, 2003, between the Borrower and the Liquidity
Provider (the "Liquidity Agreement"; the terms defined therein and not otherwise
defined herein being used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Downgrade Advance by the Liquidity Provider to be
used for the funding of the Cash Collateral Account in accordance with
Section 3.06(c) of the Intercreditor Agreement by reason of the
downgrading of the Liquidity Provider's short-term unsecured debt
rating (with respect to ▇▇▇▇▇'▇) or short-term issuer credit rating
(with respect to S&P) (or if the Liquidity Provider does not have such
a rating issued by a given Rating Agency, long-term issuer credit
rating (with respect to S&P) or long-term unsecured debt rating (with
respect to ▇▇▇▇▇'▇)) below the applicable Threshold Rating, which
Advance is requested to be made on __________, ____. The Downgrade
Advance should be remitted to [name of bank/wire instructions/ABA
number] in favor of account number [ __ ], reference [ __ ].
(3) The amount of the Downgrade Advance requested hereby
(i) is $_______________.__, which equals the Maximum Available
Commitment on the date hereof and is to be applied in respect of the
funding of the Cash Collateral Account in accordance with Sections
3.06(c) and 3.06(f) of the Intercreditor Agreement, (ii) does not
include any amount with respect to the payment of the principal of, or
premium on, the Class G Certificates, the Class C Certificates or Class
D Certificates, or interest on the Class C Certificates or Class D
Certificates, (iii) was computed in accordance with the provisions of
the Class G Certificates, the Class G Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto
as Schedule I), and (iv) has not been and is not the subject of a prior
or contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such amount in
the Cash Collateral Account and apply the same in accordance with the
terms of Sections 3.06(c) and 3.06(f) of the Intercreditor Agreement,
(b) no portion of such amount shall be applied by the Borrower for any
other purpose and (c) no portion of such amount until so applied shall
be commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Downgrade Advance as requested by
this Notice of Borrowing shall
automatically and irrevocably terminate the obligation of the Liquidity Provider
to make further Advances under the Liquidity Agreement; and (B) following the
making by the Liquidity Provider of the Downgrade Advance requested by this
Notice of Borrowing, the Borrower shall not be entitled to request any further
Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________,_____.
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Subordination Agent, as Borrower
By:___________________________________
Name:
Title:
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Downgrade Advance
Notice of Borrowing]
Annex IV to
Revolving Credit Agreement
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned borrower (the "Borrower"), hereby certifies to Citibank, N.A. (the
"Liquidity Provider"), with reference to the Revolving Credit Agreement
(2003-1G) dated as of July 8, 2003, between the Borrower and the Liquidity
Provider (the "Liquidity Agreement"; the terms defined therein and not otherwise
defined herein being used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Final Advance by the Liquidity Provider to be
used for the funding of the Cash Collateral Account in accordance with
Section 3.06(i) of the Intercreditor Agreement by reason of the receipt
by the Borrower of a Termination Notice from the Liquidity Provider
with respect to the Liquidity Agreement, which Advance is requested to
be made on ____________, ____. The Final Advance should be remitted to
[name of bank/wire instructions/ABA number] in favor of account number
[ __ ], reference [ __ ].
(3) The amount of the Final Advance requested hereby (i)
is $_________________.__, which equals the Maximum Available Commitment
on the date hereof and is to be applied in respect of the funding of
the Cash Collateral Account in accordance with Sections 3.06(f) and
3.06(i) of the Intercreditor Agreement, (ii) does not include any
amount with respect to the payment of principal of, or premium on, the
Class G Certificates, the Class C Certificates or Class D Certificates,
or interest on the Class C Certificates or Class D Certificates, (iii)
was computed in accordance with the provisions of the Class G
Certificates, the Class G Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule
I), and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such amount in
the Cash Collateral Account and apply the same in accordance with the
terms of Sections 3.06(f) and 3.06(i) of the Intercreditor Agreement,
(b) no portion of such amount shall be applied by the Borrower for any
other purpose and (c) no portion of such amount until so applied shall
be commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Final Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the obligation
of the Liquidity Provider to make further Advances under the Liquidity
Agreement; and (B) following the making by the Liquidity Provider of the Final
Advance requested by this Notice of Borrowing, the Borrower shall not be
entitled to request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of ___________, _____.
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Subordination Agent, as Borrower
By___________________________________
Name:
Title:
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Final Advance
Notice of Borrowing]
Annex V to
Revolving Credit Agreement
NOTICE OF TERMINATION
[Date]
U.S. Bank Trust National Association,
as Subordination Agent, as Borrower
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Division.
Revolving Credit Agreement dated as of July 8, 2003, between
U.S. Bank Trust National Association, as Subordination Agent,
as agent and trustee for the American Airlines Pass Through
Trust, 2003-1G, as Borrower, and Citibank, N.A., as Liquidity
Provider (the "Liquidity Agreement"; capitalized terms used
herein and not otherwise defined shall have the meanings
attributed thereto in the Liquidity Agreement)
Ladies and Gentlemen:
You are hereby notified that, pursuant to Section 6.01 of the
Liquidity Agreement, because both (x) a Performing Note Deficiency exists and
(y) a Liquidity Event of Default has occurred and is continuing, we are giving
this notice to you in order to cause (i) our obligations to make Advances (as
defined therein) under such Liquidity Agreement to terminate at the close of
business on the fifth Business Day after the date on which you receive this
notice and (ii) you to request a Final Advance under the Liquidity Agreement
pursuant to Section 2.02(d) thereof and Section 3.06(i) of the Intercreditor
Agreement (as defined in the Liquidity Agreement) as a consequence of your
receipt of this notice.
THIS NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR UNDER
THE LIQUIDITY AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY
AGREEMENT WILL TERMINATE AT THE CLOSE OF BUSINESS ON THE FIFTH BUSINESS DAY
AFTER THE DATE ON WHICH YOU RECEIVE THIS NOTICE.
Very truly yours,
CITIBANK, N.A.,
as Liquidity Provider
By_________________________________
Name:
Title:
cc: U.S. Bank Trust National Association,
as Class G Trustee
Annex VI to
Revolving Credit Agreement
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement dated as of July 8, 2003, between U.S. Bank
Trust National Association, as Subordination Agent, as agent and
trustee for the American Airlines Pass Through Trust, 2003-1G, as
Borrower, and Citibank, N.A., as Liquidity Provider (the "Liquidity
Agreement")
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
______________________________
[Name of Transferee]
______________________________
[Address of Transferee]
all rights and obligations of the undersigned as Borrower under the Liquidity
Agreement referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the first
paragraph of the Liquidity Agreement, pursuant to the terms of Section 7.01 of
the Intercreditor Agreement.
By this transfer, all rights of the undersigned as Borrower
under the Liquidity Agreement are transferred to the transferee and the
transferee shall hereafter have the sole rights and obligations as Borrower
thereunder. The undersigned shall pay any costs and expenses of such transfer,
including, but not limited to, transfer taxes or governmental charges.
This transfer shall be effective as of [specify time and date]
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Subordination Agent, as Borrower
By___________________________________
Name:
Title:
By___________________________________
Name:
Title: