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EXHIBIT 4(c)(1)
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REVOLVING CREDIT AGREEMENT
(1999-1A-1)
Dated as of October 6, 1999
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Subordination Agent,
as agent and trustee for the trustee of
American Airlines Pass Through Trust 1999-1A-1
as Borrower
and
BAYERISCHE LANDESBANK GIROZENTRALE,
as Liquidity Provider
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American Airlines Pass Through Trust 1999-1A-1
6.855% American Airlines
Pass Through Certificates,
Series 1999-1A-1
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01 Definitions.....................................................................................1
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01 The Advances....................................................................................8
Section 2.02 Making of Advances..............................................................................8
Section 2.03 Fees...........................................................................................10
Section 2.04 Reduction or Termination of the Maximum Commitment.............................................10
Section 2.05 Repayments of Interest Advances or the Final Advance...........................................11
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...................................................................................13
Section 2.09 Payments from Available Funds Only.............................................................13
Section 2.10 Extension of the Expiry Date; Non-Extension Advance............................................13
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01 Increased Costs................................................................................14
Section 3.02 [Intentionally omitted]........................................................................15
Section 3.03 Withholding Taxes..............................................................................15
Section 3.04 Payments.......................................................................................16
Section 3.05 Computations...................................................................................16
Section 3.06 Payment on Non-Business Days...................................................................17
Section 3.07 Interest.......................................................................................17
Section 3.08 Replacement of Borrower........................................................................18
Section 3.09 Funding Loss Indemnification...................................................................18
Section 3.10 Illegality.....................................................................................19
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to Effectiveness of Section 2.01..........................................19
Section 4.02 Conditions Precedent to Borrowing..............................................................21
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ARTICLE V
COVENANTS
Section 5.01 Affirmative Covenants of the Borrower..........................................................21
Section 5.02 Negative Covenants of the Borrower.............................................................21
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01 Liquidity Events of Default....................................................................22
ARTICLE VII
MISCELLANEOUS
Section 7.01 No Oral Modification or Continuing Waivers.....................................................22
Section 7.02 Notices, Etc...................................................................................22
Section 7.03 No Waiver; Remedies............................................................................24
Section 7.04 Further Assurances.............................................................................24
Section 7.05 Indemnification; Survival of Certain Provisions................................................24
Section 7.06 Liability of the Liquidity Provider............................................................24
Section 7.07 Certain Costs and Expenses.....................................................................25
Section 7.08 Binding Effect; Participations.................................................................25
Section 7.09 Severability...................................................................................26
Section 7.10 Governing Law..................................................................................27
Section 7.11 Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity...........................27
Section 7.12 Counterparts...................................................................................27
Section 7.13 Entirety.......................................................................................28
Section 7.14 Headings.......................................................................................28
Section 7.15 Liquidity Provider's Obligation to Make Advances...............................................28
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
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REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT, dated as of October 6, 1999, is made
by and between STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, 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 defined below), as agent and trustee for the Class
A-1 Trustee (in such capacity, together with its successors in such capacity,
the "Borrower"), and BAYERISCHE LANDESBANK GIROZENTRALE, a public law banking
institution organized under the laws of the Free State of Bavaria, Germany (the
"Liquidity Provider").
W I T N E S S E T H:
WHEREAS, pursuant to the Class A-1 Trust Agreement, the Class A-1
Trust is issuing the Class A-1 Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a
portion of the interest on the Class A-1 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.
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(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:
"Advance" means an Interest Advance, a Final Advance, a Provider
Advance, an Applied Provider Advance or an Unpaid 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(g).
"Applicable Margin" means with respect to any Unpaid Advance or
Applied Provider Advance, 1.75%.
"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" means an Applied Downgrade Advance or an
Applied Non-Extension Advance.
"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 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 (and reasonably satisfactory to
American) plus one-quarter of one percent (0.25%).
"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.
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"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 A-1 Certificate is outstanding,
the city and state in which the Class A-1 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 bearing interest based on the LIBOR Rate, on which dealings are carried
on in the London interbank market.
"Consent Notice" has the meaning specified in Section 2.10.
"Consent Period" has the meaning specified in Section 2.10.
"Covered Taxes" means any Taxes imposed by the United States or any
political subdivision or taxing authority thereof or therein required by law to
be deducted or withheld from any amounts payable to the Liquidity Provider
under this Agreement other than (i) any Tax on, based on or measured by net
income, franchises or conduct of business, (ii) any Tax imposed, levied,
withheld or assessed as a result of any connection between the Liquidity
Provider and the United States or such political subdivision or taxing
authority, other than a connection arising solely from the Liquidity Provider's
having executed, delivered, performed its obligations or received a payment
under, or enforced, any Operative Agreement, (iii) any Tax attributable to the
inaccuracy in or breach by the Liquidity Provider of any of its
representations, warranties or covenants contained in any Operative Agreement
to which it is a party or the inaccuracy of any form or document furnished
pursuant thereto, (iv) any withholding Taxes imposed by the United States
except to the extent such withholding Taxes would not have been required to be
deducted or withheld from payments hereunder but for a change after the date
hereof in the income tax treaty between the United States and Germany or a
change in the Code that overrides the provisions of such treaty or (v) any
change in the Lending Office without the prior written consent of American
(such consent not to be unreasonably withheld).
"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(f) shall be conclusive evidence that the Effective Date has occurred.
"Expenses" means liabilities, losses, damages, costs and expenses
(including, without limitation, reasonable fees and disbursements of legal
counsel), 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 October 4, 2000, initially, or any date to which
the Expiry Date is extended pursuant to Section 2.10.
"Final Advance" means an Advance made pursuant to Section 2.02(d).
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"Increased Cost" has the meaning specified in Section 3.01.
"Intercreditor Agreement" means the Intercreditor Agreement, dated as
of the date hereof, among the Trustees, the Liquidity Provider, the liquidity
provider under each Liquidity Facility (other than this Agreement) 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 Class A-1 Cash Collateral Account for the purpose of paying
interest on the Class A-1 Certificates as contemplated by Section
2.06(a) hereof and, in each case, ending on the next Regular
Distribution Date; and
(ii) each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the next Regular
Distribution Date;
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).
"Lending Office" means the lending office of the Liquidity Provider
presently located at Munich, Germany, 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 without the prior written consent of American (such consent not
to be unreasonably withheld).
"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
interest rate per annum equal to the rate per annum at which deposits in
Dollars are offered in the London interbank market as shown on Page 3750 of the
Telerate Systems Incorporated screen service (or such other page as may replace
Telerate Page 3750), or if such service is not available, Page LIBO of the
Reuters Money Service Monitor System (or such other page as may replace Reuters
Page LIBO) 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, for a period
comparable to such Interest Period, or (b) if no such rate is published on
either such service or if neither of such services is then available, the
interest rate per
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annum equal to the average (rounded up, if necessary, to the nearest 1/100th of
1%) of the rates at which deposits in Dollars are offered by the Reference Banks
(or, if fewer than all of the Reference Banks are quoting a rate for deposits in
Dollars for the applicable period and amount, such fewer number of Reference
Banks) 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 to prime banks in the London
interbank market for a period comparable to such Interest Period and in an
amount approximately equal to the principal amount of the LIBOR Advance to be
outstanding during such Interest Period, or (c) if none of the Reference Banks
is quoting a rate for deposits in Dollars in the London interbank market for
such a period and amount, the interest rate per annum equal to the average
(rounded up, if necessary, to the nearest 1/100th of 1%) of the rates at which
deposits in Dollars are offered by the principal New York offices of the
Reference Banks (or, if fewer than all of the Reference Banks are quoting a rate
for deposits in Dollars in the New York interbank market for the applicable
period and amount, such fewer number of Reference Banks) at approximately 11:00
a.m. (New York time) on the day that is two Business Days prior to the first day
of such Interest Period to prime banks in the New York interbank market for a
period comparable to such Interest Period and in an amount approximately equal
to the principal amount of the LIBOR Advance to be outstanding during such
Interest Period, or (d) if none of the principal New York offices of the
Reference Banks is quoting a rate for deposits in Dollars in the New York
interbank market for the applicable period and amount, the Base Rate.
"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 the Liquidity Provider, its directors,
officers, employees and agents, and its successors and permitted assigns.
"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 $15,773,747.00, as the same may
be reduced from time to time in accordance with Section 2.04(a).
"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).
"Notice of Replacement Subordination Agent" has the meaning specified
in Section 3.08.
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"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
September 23, 1999, relating to the Certificates, as such Prospectus Supplement
may be amended or supplemented.
"Provider Advance" means a Downgrade Advance or a Non-Extension
Advance.
"Reference Banks" means the principal London offices of: National
Westminster Bank, plc; ▇▇▇▇▇▇ Guaranty Trust Company of New York; The Chase
Manhattan Bank; Citibank, N.A.; and such other or additional banking
institutions as may be designated from time to time by mutual agreement of
American and the Liquidity Provider.
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"Regulatory Change" means the enactment, adoption or promulgation,
after the date of this Agreement, of any law or regulation by a United States
federal or state government or by the government of the Liquidity Provider's
jurisdiction of organization, or any change, after the date of this Agreement,
in any such law or regulation, or in the interpretation thereof by any
governmental authority, central bank or comparable agency of the United States
or the Liquidity Provider's jurisdiction of organization charged with
responsibility for the administration or application thereof, that shall
impose, modify or deem applicable (a) any reserve, special deposit or similar
requirement against extensions of credit or other assets of, or deposits with
or other liabilities of, the Liquidity Provider including, or by reason of, the
Advances or (b) any capital adequacy requirement requiring the maintenance by
the Liquidity Provider of additional capital in respect of any Advances or the
Liquidity Provider's obligation to make any such Advances.
"Replenishment Amount" has the meaning specified in Section 2.06(b).
"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 A-1 Certificates on the basis of a 360-day year comprised of
twelve 30-day months, that would be payable on the Class A-1 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 A-1 Certificates on
such day and without regard to expected future distributions of principal on
the Class A-1 Certificates.
"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 all of the Class A-1 Certificates have been paid in full (or
provision has been made for such payment in accordance with the Intercreditor
Agreement and the Class A-1 Trust Agreement) or 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; 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.
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"Withdrawal Notice" has the meaning specified in Section 2.10.
(e) For the purposes of this Agreement, the following terms shall have
the respective meanings specified in the Intercreditor Agreement:
"Acceleration", "American", "American Bankruptcy Event",
"Certificate", "Class A-1 Cash Collateral Account", "Class A-1 Certificates",
"Class A-1 Certificateholders", "Class A-1 Trust", "Class A-1 Trust Agreement",
"Class A-1 Trustee", "Class A-2 Certificates", "Class B Certificates", "Class C
Certificates", "Closing Date", "Collection Account", "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
Facility", "Liquidity Obligations", "Loan Trustee", "▇▇▇▇▇'▇", "Non-Extended
Facility", "Operative Agreements", "Participation Agreements", "Performing
Equipment Note", "Person", "Pool Balance", "Rating Agencies", "Ratings
Confirmation", "Regular Distribution Date", "Replacement Liquidity Facility",
"Responsible Officer", "Scheduled Payment", "Special Payment", "S&P", "Stated
Interest Rate", "Subordination Agent", "Taxes", "Threshold Rating", "Trust
Agreement", "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 of 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,
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 used
solely for the payment when due of interest with respect to the Class A-1
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). Upon repayment to the Liquidity Provider in full or in 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
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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 Drawing shall have occurred.
(b) Subject to Section 2.10, a Non-Extension Advance shall be made by
the Liquidity Provider 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, 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 Class A-1 Cash
Collateral Account in accordance with Sections 3.06(d) and 3.06(f) of the
Intercreditor Agreement.
(c) A Downgrade Advance shall be made by the Liquidity Provider if at
any time the short-term unsecured debt rating of the Liquidity Provider issued
by either Rating Agency (or if the Liquidity Provider does not have a
short-term unsecured debt rating issued by a given Rating Agency, the long-term
unsecured debt rating of the Liquidity Provider issued by such Rating Agency)
is lower than 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, 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 Class A-1 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 following
the receipt by the Borrower of a Termination Notice from the Liquidity Provider
pursuant to Section 6.01 upon delivery to the Liquidity Provider of a written
and completed Notice of Borrowing in substantially the form of Annex IV, 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 Class A-1 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. 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
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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 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. Each Notice of Borrowing shall be effective upon delivery of a copy
thereof to the Liquidity Provider's New York branch at the address specified in
Section 7.02 hereof.
(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 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 A-1 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 said
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) to fund the Class A-1 Cash Collateral
Account, the Liquidity Provider shall have no interest in or rights to the
Class A-1 Cash Collateral Account, such Advance or any other amounts from time
to time on deposit in the Class A-1 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
Class A-1 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. Reduction 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 A-1
Certificates 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
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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 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 (a) on each date on which the
Liquidity Provider shall make an Interest Advance or the Final Advance, an
amount equal to 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 amounts and on the dates determined as provided
in Section 3.07; 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
Liquidity Facility 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. For the avoidance of doubt,
interest payable on an Interest Advance or the Final Advance shall not be
regarded as overdue unless such interest is not paid when due under Section
3.07.
Section 2.06. Repayments of Provider Advances. (a) Amounts advanced
hereunder in respect of a Provider Advance shall be deposited in the Class A-1
Cash Collateral Account and invested and withdrawn from the Class A-1 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; provided,
however, that amounts in respect of a Provider Advance withdrawn from the Class
A-1 Cash Collateral Account for the purpose of paying interest on the Class A-1
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
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Downgrade Advance, an "Applied Provider Advance") shall thereafter (subject to
Section 2.06(b)) be treated as an Interest 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; 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, 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 Class A-1 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.
(b) At any time when an Applied Provider Advance (or any portion
thereof) is outstanding, upon the deposit in the Class A-1 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 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, as provided in Section 3.06(f) of the Intercreditor
Agreement, amounts remaining on deposit in the Class A-1 Cash Collateral
Account after giving effect to any Applied Provider Advance on the date of such
replacement shall be reimbursed to the Liquidity Provider, but only to the
extent such amounts are necessary to repay in full to the Liquidity Provider
all amounts owing to it hereunder.
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 (but, for the
avoidance of doubt, without duplication of or increase in any amounts payable
hereunder). Amounts so paid to the Liquidity Provider shall be applied by the
Liquidity Provider in the order of priority required by the applicable
provisions of Articles II and III of the Intercreditor Agreement and shall
discharge in full the corresponding obligations of the Borrower hereunder.
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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 Class A-1 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. If
the Expiry Date is prior to the date that is 15 days after the Final Legal
Distribution Date for the Class A-1 Certificates, then no earlier than the 60th
day and no later than the 40th day prior to the then applicable Expiry Date,
the Borrower may 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 A-1 Certificates and (ii) the date that
is the day immediately preceding the 364th day after the last day of the
Consent Period (unless the obligations of the Liquidity Provider hereunder are
earlier terminated in accordance herewith). 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 the then effective Expiry Date (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), 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
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Agreement. If any amounts shall be drawn pursuant to a Non-Extension Advance
and, within 30 days thereafter, the Liquidity Provider shall not have been
replaced, then at any time following the 30th day after such Non-Extension
Advance, the Liquidity Provider may, by written notice to the Borrower, agree
to reinstate the Liquidity Facility on the terms of the existing Liquidity
Facility for a period ending on the 364th day after the end of the Consent
Period; provided, however, that in such event the Liquidity Provider shall
reimburse the Borrower for any costs actually incurred by or on behalf of the
Borrower in drawing pursuant to the Non-Extension Advance and funding the Class
A-1 Cash Collateral Account or otherwise in connection with the Non-Extension
Advance.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs. If as a result of any Regulatory Change
there shall be any increase by an amount reasonably deemed by the Liquidity
Provider to be material in the actual cost to the Liquidity Provider of making,
funding or maintaining any Advances or its obligation to make any such Advances
or there shall be any reduction by an amount reasonably deemed by the Liquidity
Provider to be material in the amount receivable by the Liquidity Provider
under this Agreement or the Intercreditor Agreement in respect thereof, and in
case of either such an increase or reduction, such event does not arise from
the gross negligence or willful misconduct of the Liquidity Provider, from its
breach of any of its representations, warranties, covenants or agreements
contained herein or in the Intercreditor Agreement or from its failure to
comply with any such Regulatory Change (any such increase or reduction being
referred to herein as an "Increased Cost"), then the Borrower shall from time
to time pay to the Liquidity Provider an amount equal to such Increased Cost
within 15 Business Days after delivery to the Borrower and American of a
certificate of an officer of the Liquidity Provider describing in reasonable
detail the event by reason of which it claims such Increased Cost and the basis
for the determination of the amount of such Increased Cost; provided that, the
Borrower shall be obligated to pay amounts only with respect to any Increased
Costs accruing from the date 45 days prior to the date of delivery of such
certificate. Such certificate, in the absence of manifest error, shall be
considered prima facie evidence of the amount for purposes of this Agreement;
provided that any determinations and allocations by the Liquidity Provider of
the effect of any Regulatory Change on the costs of maintaining the Advances
are made on a reasonable basis. The Liquidity Provider shall not be entitled to
assert any claim under this Section 3.01 in respect of or attributable to
Taxes. The Liquidity Provider will notify the Borrower and American as promptly
as practicable of any event occurring after the date of this Agreement that
will entitle the Liquidity Provider to compensation under this Section 3.01.
The Liquidity Provider agrees to investigate all commercially reasonable
alternatives for reducing any Increased Costs and to use all commercially
reasonable efforts to avoid or minimize, to the greatest extent possible, any
claim in respect of Increased Costs, including, without limitation, by
designating a different Lending Office, if such designation or other action
would avoid the need for, or reduce the amount of, any such claim; provided
that the foregoing shall not obligate the Liquidity Provider to take any action
that would, in its reasonable judgment, cause the Liquidity Provider to incur
any material loss or cost, unless the Borrower or American agrees to reimburse
the Liquidity Provider therefor. If no such
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designation or other action is effected, or, if effected, fails to avoid the
need for any claim in respect of Increased Costs, American may arrange for a
Replacement Liquidity Facility in accordance with Section 3.06(e) of the
Intercreditor Agreement.
Notwithstanding the foregoing provisions, in no event shall the
Borrower be required to make payments under this Section 3.01: (a) in respect
of any Regulatory Change proposed by any applicable governmental authority
(including any branch of a legislature), central bank or comparable agency of
the United States or the Liquidity Provider's jurisdiction of organization and
pending as of the date of this Agreement (it being agreed that the consultative
paper issued by the Basel Committee on Banking Supervision entitled "A New
Capital Adequacy Framework" shall not be considered a Regulatory Change
proposed as of the date of this Agreement); (b) if a claim hereunder in respect
of an Increased Cost arises through circumstances peculiar to the Liquidity
Provider and that do not affect similarly organized commercial banking
institutions in the same jurisdiction generally that are in compliance with the
law, rule, regulation or interpretation giving rise to the Regulatory Change
relating to such Increased Cost; (c) if the Liquidity Provider shall fail to
comply with its obligations under this Section 3.01; or (d) if the Liquidity
Provider is not also seeking payment for similar increased costs in other
similarly situated transactions.
Section 3.02. [Intentionally omitted.]
Section 3.03. Withholding Taxes. (a) All payments made by the Borrower
under this Agreement shall be made without deduction or withholding for or on
account of any Taxes, unless such deduction or withholding is required by law.
If any Taxes are so required to be withheld or deducted from any amounts
payable to the Liquidity Provider under this Agreement, the Borrower shall pay
to the relevant authorities the full amount so required to be deducted or
withheld and, if such Taxes are Covered Taxes, pay to the Liquidity Provider
such additional amounts as shall be necessary to ensure that the net amount
actually received by the Liquidity Provider (after deduction or withholding of
all Covered Taxes) shall be equal to the full amount that would have been
received by the Liquidity Provider had no withholding or deduction of Covered
Taxes been required. The Liquidity Provider agrees to use reasonable efforts
(consistent with applicable legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if making such change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of the Liquidity Provider, be
otherwise materially disadvantageous to the Liquidity Provider. If the
Liquidity Provider receives a refund of, or realizes a net Tax benefit not
otherwise available to it as a result of, any Taxes for which additional
amounts were paid by the Borrower pursuant to this Section 3.03, the Liquidity
Provider shall pay to the Borrower (for deposit into the Collection Account)
the amount of such refund (and any interest thereon) or net benefit.
The Liquidity Provider will (i) provide (on its behalf and on behalf
of any participant holding a Participation pursuant to Section 7.08) to the
Borrower (x) on or prior to the Effective Date two valid completed and executed
copies of Internal Revenue Service Form W8-BEN, including thereon a valid U.S.
taxpayer identification number (or, with respect to any such participant, such
other form or documentation as may be applicable) covering all amounts
receivable by it in connection with the
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transactions contemplated by the Operative Agreements and (y) thereafter from
time to time such additional forms or documentation as may be necessary to
establish an available exemption from withholding of United States Tax on
payments hereunder so that such forms or documentation are effective for all
periods during which it is the Liquidity Provider and (ii) provide timely
notice to the Borrower if any such form or documentation is or becomes
inaccurate. The Liquidity Provider shall deliver to the Borrower such other
forms or documents as may be reasonably requested by the Borrower or required
by applicable law to establish that payments hereunder are exempt from or
entitled to a reduced rate of Covered Taxes.
(b) All payments (including, without limitation, 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. If any Taxes are required to
be withheld or deducted from any amounts payable to the Borrower under this
Agreement, 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) will be sufficient to yield to the
Borrower the full amount which would have been received by it had no such
withholding or deduction been made. 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.
If any exemption from, or reduction in the rate of, any Taxes required
to be borne by the Liquidity Provider under this Section 3.03(b) is reasonably
available to the Borrower without providing any information regarding the
holders or beneficial owners of the Certificates, the Borrower shall deliver
the Liquidity Provider such form or forms and such other evidence of the
eligibility of the Borrower for such exemption or reductions (but without any
requirement to provide any information regarding the holders or beneficial
owners of the Certificates) 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, such Taxes.
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 First Union Bank International, Swift/BIC - Code: ▇▇▇▇▇▇▇▇ ▇▇▇
(Fedwire 0260 0509 2/CHIPS/ABA 0509) in favor of account number 2000 193534
122, Bayerische Landesbank Girozentrale, Munich, Swift/BIC - Code: ▇▇▇▇▇▇▇▇,
Reference RCA American EETC 1999-1A- 1.
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
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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 Class A-1
Cash Collateral Account to pay interest on the Class A-1 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 Class A-1 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 the
interest rate per annum for each day equal to the Applicable Liquidity 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) Except as provided in Section 3.07(e), each 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; provided that the Borrower (at the
direction of the Controlling Party, so long as the Liquidity Provider is not
the Controlling Party) may (x) convert the Final Advance into a Base Rate
Advance on the last day of an Interest Period for such Advance by giving the
Liquidity Provider no less than four Business Days' prior written notice of
such election
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or (y) elect to maintain the Final Advance as a Base Rate Advance by not
requesting a conversion of the Final Advance to a LIBOR Advance under Clause
(5) of the applicable Notice of Borrowing (or, if, pursuant to Section 2.06,
such Final Advance is deemed to have been made without delivery of a Notice of
Borrowing, by requesting, prior to 11:00 a.m. on the first Business Day
immediately following the Borrower's receipt of the applicable Termination
Notice, that such Final Advance not be converted from a Base Rate Advance to 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 outstanding Unapplied Provider Advance shall bear interest in
an amount equal to the Investment Earnings on amounts on deposit in the Class
A-1 Cash Collateral Account for such Unapplied Provider Advance on the amount
of such Unapplied Provider Advance from time to time, payable in arrears on
each Regular Distribution Date.
(f) 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 1.75% per
annum until paid.
(g) 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. Subject to Section 5.02, 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 (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.
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
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(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 the Applicable Margin or 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 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 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. The Liquidity
Provider will notify the Borrower and American as promptly as practicable of
any event that will lead to the conversion of LIBOR Advances to Base Rate
Advances under this Section 3.10. The Liquidity Provider agrees to investigate
all commercially reasonable alternatives for avoiding the need for such
conversion, including, without limitation, designating a different Lending
Office, if such designation or other action would avoid the need to convert
such LIBOR Advances to Base Rate Advances; provided, that the foregoing shall
not obligate the Liquidity Provider to take any action that would, in its
reasonable judgment, cause the Liquidity Provider to incur any material loss or
cost, unless the Borrower or American agrees to reimburse the Liquidity
Provider therefor. If no such designation or other action is effected, or, if
effected, fails to avoid the need for conversion of the LIBOR Advances to Base
Rate Advances, American may arrange for a Replacement Liquidity Facility in
accordance with Section 3.06(e) of the Intercreditor Agreement.
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") on which the following conditions precedent have
been satisfied (or waived by the appropriate party or parties):
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(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) and (iii), 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 copy of the Prospectus Supplement and specimen copies
of the Class A-1 Certificates;
(v) An executed copy of each document, instrument,
certificate and opinion delivered on or before the Closing Date
pursuant to the Class A-1 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); and
(vi) An agreement from American, pursuant to which (x)
American agrees to provide copies of quarterly financial statements
and audited annual financial statements to the Liquidity Provider and
(y) American agrees to allow the Liquidity Provider to discuss such
transactions with officers and employees of American.
(b) 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, which constitutes a Liquidity Event of Default.
(c) The filings referred to in Sections 3.01(d) and 3.01(f) of the
Participation Agreements shall have been filed (or shall be in the process of
being filed).
(d) The Liquidity Provider shall have received payment in full of the
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.
(e) All conditions precedent to the issuance of the Certificates under
the Trust Agreement shall have been satisfied or waived, all conditions
precedent to the effectiveness of the other
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Liquidity Facilities shall have been satisfied or waived, and all conditions
precedent to the purchase of the 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).
(f) 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.
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 Agreements. Punctually pay or cause to be paid all
amounts payable by it under this Agreement and the Intercreditor Agreement and
observe and perform in all material respects the conditions, covenants and
requirements applicable to it contained in this Agreement and the Intercreditor
Agreement.
(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.
Section 5.02. Negative Covenants of the Borrower. Subject to the first
and second sentences and the fourth paragraph of Section 7.01(a) of the
Intercreditor Agreement and Section 7.01(b) of the Intercreditor Agreement, so
long as any Advance shall remain unpaid or the Liquidity
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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.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default. If (a) any Liquidity Event
of Default has occurred and is continuing and (b) there is a Performing Note
Deficiency, the Liquidity Provider may, in its discretion, deliver to the
Borrower a Termination Notice, the effect of which shall be to cause (i) this
Agreement 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 purposes of determining the
Applicable Liquidity Rate for interest payable thereon and (iv) subject to
Sections 2.07 and 2.09, all Advances, any accrued interest thereon and any
other amounts outstanding hereunder to become immediately due and payable to
the Liquidity Provider.
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 Airlines without American's 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 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 U.S. 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),
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If to the Borrower, to:
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
225 Asylum, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Division
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Liquidity Provider,
If by mail to:
BAYERISCHE LANDESBANK GIROZENTRALE
▇/▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ Branch
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(With a copy to the address of the Liquidity Provider set forth below)
If by other means of communication to:
BAYERISCHE LANDESBANK GIROZENTRALE
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attention: Aircraft Finance ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
Telephone: ▇▇-▇▇-▇▇▇▇-▇▇▇▇
Telecopy: ▇▇-▇▇-▇▇▇▇-▇▇▇▇
With a copy of any Notice of Borrowing to:
BAYERISCHE LANDESBANK GIROZENTRALE
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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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 all Expenses of any kind or nature
whatsoever (other than any Expenses of the nature described in Sections 3.01 or
7.07 or in the Fee Letter (regardless of whether indemnified against pursuant
to said Sections or in such Fee Letter)), that may be imposed on or incurred by
such 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
negligence or willful misconduct of such Liquidity Indemnitee or any other
Liquidity Indemnitee, (ii) an ordinary and usual operating overhead expense,
(iii) attributable to the failure by such Liquidity Indemnitee or any other
Liquidity Indemnitee to perform or observe any agreement, covenant or condition
on its part to be performed or observed in this Agreement, the Intercreditor
Agreement, the Fee Letter or any other Operative Agreement to which it is a
party or (iv) otherwise excluded from the indemnification provisions contained
in Section 4.02 of the Participation Agreements. The provisions of Sections
3.01, 3.03, 3.09, 7.05 and 7.07 and the indemnities contained in Section 4.02
of the Participation Agreements 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 or directors 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
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28
connection therewith; (ii) the validity, sufficiency or genuineness of
documents, 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 that 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, 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 complying with the
terms and conditions hereof.
(b) Neither the Liquidity Provider nor any of its officers, employees
or 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 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. Certain Costs and Expenses. The Borrower agrees promptly
to pay, or cause to be paid, (a) the reasonable fees, expenses and
disbursements of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for the
Liquidity Provider, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Schniewand Kelwing ▇▇▇▇▇, special German
counsel to the Liquidity Provider, in connection with the preparation,
negotiation, execution, delivery, filing and recording of the Operative
Agreements, any waiver or consent thereunder or any amendment thereof and (b)
if a Liquidity Event of Default occurs, all out-of-pocket expenses incurred by
the Liquidity Provider, including reasonable fees and disbursements of counsel,
in connection with such Liquidity Event of Default and any collection,
bankruptcy, insolvency and other enforcement proceedings in connection
therewith. 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 save 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).
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(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 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
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 or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
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30
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable 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 LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 7.11. 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 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.
(c) The Liquidity Provider hereby waives any immunity it may have from
the jurisdiction of the courts of the United States or of any state thereof and
waives any immunity any of its properties located in the United States may have
from attachment or execution upon a judgment entered by any such court under
the United States Foreign Sovereign Immunities Act of 1976 or any similar
successor legislation.
Section 7.12. 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
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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 and the Intercreditor Agreement
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.
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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.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as
Subordination Agent, as agent and
trustee for the Class A-1 Trust, as
Borrower
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
BAYERISCHE LANDESBANK GIROZENTRALE,
as Liquidity Provider
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
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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 Bayerische Landesbank
Girozentrale (the "Liquidity Provider"), with reference to the Revolving Credit
Agreement (1999-1A-1), dated as of October 6, 1999, 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 A-1 Certificates which is payable on ____________,
____ (the "Distribution Date") in accordance with the terms and provisions of
the Class A-1 Trust Agreement and the Class A-1 Certificates, which Advance is
requested to be made on ____________, ____. The Interest Advance should be
remitted to [insert wire and account details].
(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 A-1 Certificates on the Distribution
Date, (ii) does not include any amount with respect to the payment of principal
of, or premium on, the Class A-1 Certificates, the Class A-2 Certificates, the
Class B Certificates or the Class C Certificates, or interest on the Class A-2
Certificates, the Class B Certificates or the Class C Certificates, (iii) was
computed in accordance with the provisions of the Class A-1 Certificates, the
Class A-1 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 and (v) 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
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34
as set forth in clause (i) of paragraph (3) of this Certificate 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 _________, ____.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Subordination Agent, as Borrower
By:
----------------------------------------
Name:
Title:
I-2
35
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest Advance
Notice of Borrowing]
I-3
36
ANNEX II to
REVOLVING CREDIT AGREEMENT
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
subordination agent (the "Borrower"), hereby certifies to Bayerische Landesbank
Girozentrale (the "Liquidity Provider"), with reference to the Revolving Credit
Agreement (1999-1A-1), dated as of October 6, 1999, 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 Class A-1 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 [insert
wire and account details].
(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 Class A-1 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 A-1 Certificates, or
principal of, or interest or premium on, the Class A-2 Certificates, the Class
B Certificates or the Class C Certificates, (iii) was computed in accordance
with the provisions of the Class A-1 Certificates, the Class A-1 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 Class A-1
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
II-1
37
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 _________, ____.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Subordination Agent, as Borrower
By:
-----------------------------------
Name:
Title:
II-2
38
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Non-Extension Advance
Notice of Borrowing]
II-3
39
ANNEX III to
REVOLVING CREDIT AGREEMENT
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
subordination agent (the "Borrower"), hereby certifies to Bayerische Landesbank
Girozentrale (the "Liquidity Provider"), with reference to the Revolving Credit
Agreement (1999-1A-1), dated as of October 6, 1999, 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 Class A-1 Cash Collateral Account in accordance with Section 3.06(c) of
the Intercreditor Agreement by reason of the downgrading of the short-term
unsecured debt rating or long-term unsecured debt rating of the Liquidity
Provider issued by either Rating Agency below the Threshold Rating, which
Advance is requested to be made on __________, ____. The Downgrade Advance
should be remitted to [insert wire and account details].
(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 Class A-1 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 A-1 Certificates, or
principal of, or interest or premium on, the Class A-2 Certificates, the Class
B Certificates or the Class C Certificates, (iii) was computed in accordance
with the provisions of the Class A-1 Certificates, the Class A-1 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 Class A-1
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
III-1
40
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 _________, ____.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Subordination Agent, as Borrower
By:
-----------------------------------
Name:
Title:
III-2
41
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Downgrade Advance
Notice of Borrowing]
III-3
42
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 Bayerische Landesbank
Girozentrale (the "Liquidity Provider"), with reference to the Revolving Credit
Agreement (1999-1A-1), dated as of October 6, 1999, 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 Class A-1 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 [insert wire and account details].
(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 Class A-1
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 A-1 Certificates, or
principal of, or interest or premium on, the Class A-2 Certificates, the Class
B Certificates or the Class C Certificates, (iii) was computed in accordance
with the provisions of the Class A-1 Certificates, the Class A-1 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 Class A-1
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.
[(5) The Borrower hereby requests that the Advance requested hereby be
a Base Rate Advance [and that such Base Rate Advance be converted into a LIBOR
Advance on the third Business Day following your receipt of this notice]*.]
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
IV-1
43
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 _________, ____.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Subordination Agent, as Borrower
By:
----------------------------------
Name:
Title:
[* Bracketed language may be included at Borrower's option.]
IV-2
44
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Final Advance
Notice of Borrowing]
IV-3
45
ANNEX V to
REVOLVING CREDIT AGREEMENT
NOTICE OF TERMINATION
[Date]
State Street Bank and Trust Company of Connecticut, National Association,
as Subordination Agent, as Borrower
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Re: Revolving Credit Agreement, dated as of October 6, 1999, between State
Street Bank and Trust Company of Connecticut, National Association, as
Subordination Agent, as agent and trustee for the American Airlines
Pass Through Trust 1999-1A-1, as Borrower, and Bayerische Landesbank
Girozentrale (the "Liquidity Agreement")
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.01 of the Liquidity
Agreement, by reason of the occurrence and continuance of a Liquidity Event of
Default and the existence of a Performing Note Deficiency (each as defined
therein), 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 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,
Bayerische Landesbank Girozentrale,
as Liquidity Provider
By:
----------------------------------
Name:
Title:
cc: State Street Bank and Trust Company of Connecticut,
National Association, as Class A-1 Trustee
V-1
46
ANNEX VI to
REVOLVING CREDIT AGREEMENT
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Re: Revolving Credit Agreement, dated as of October 6, 1999, between State
Street Bank and Trust Company of Connecticut, National Association, as
Subordination Agent, as agent and trustee for the American Airlines
Pass Through Trust 1999-1A-1, as Borrower, and Bayerische Landesbank
Girozentrale (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].
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Subordination Agent, as Borrower
By:
-------------------------------------------
Name:
Title:
VI-1
