EXHIBIT 4.14
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REVOLVING CREDIT AGREEMENT
(2001-1A-2)
Dated as of May 24, 2001
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 2001-1A-2
as Borrower
and
BOEING CAPITAL CORPORATION,
as Liquidity Provider
American Airlines Pass Through Trust 2001-1A-2
6.817% American Airlines
Pass Through Certificates,
Series 2001-1A-2
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 ................................................. 9
Section 2.02 Making of Advances ........................................... 9
Section 2.03 Fees ......................................................... 11
Section 2.04 Reduction, Increase or Termination of the Maximum Commitment . 11
Section 2.05 Repayments of Interest Advances or the Final Advance ......... 12
Section 2.06 Repayments of Provider Advances .............................. 12
Section 2.07 Payments to the Liquidity Provider Under the
Intercreditor Agreement ...................................... 14
Section 2.08 Book Entries ................................................. 14
Section 2.09 Payments from Available Funds Only ........................... 14
Section 2.10 Extension of the Expiry Date; Non-Extension Advance .......... 14
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01 Increased Costs .............................................. 15
Section 3.02 [Intentionally omitted.] ..................................... 16
Section 3.03 Withholding Taxes ............................................ 17
Section 3.04 Payments ..................................................... 18
Section 3.05 Computations ................................................. 18
Section 3.06 Payment on Non-Business Days ................................. 18
Section 3.07 Interest ..................................................... 19
Section 3.08 Replacement of Borrower ...................................... 20
Section 3.09 Funding Loss Indemnification ................................. 21
Section 3.10 Illegality ................................................... 21
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to Effectiveness of Section 2.01 ........ 22
Section 4.02 Conditions Precedent to Borrowing ............................ 23
ARTICLE V
COVENANTS
Section 5.01 Affirmative Covenants of the Borrower ........................ 23
Section 5.02 Negative Covenants of the Borrower ........................... 24
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Table of Contents
Page
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ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01 Liquidity Events of Default .................................. 24
ARTICLE VII
MISCELLANEOUS
Section 7.01 No Oral Modifications or Continuing Waivers .................. 24
Section 7.02 Notices ...................................................... 25
Section 7.03 No Waiver; Remedies .......................................... 26
Section 7.04 Further Assurances ........................................... 26
Section 7.05 Indemnification; Survival of Certain Provisions .............. 26
Section 7.06 Liability of the Liquidity Provider .......................... 27
Section 7.07 Certain Costs and Expenses ................................... 27
Section 7.08 Binding Effect; Participations ............................... 28
Section 7.09 Severability ................................................. 29
Section 7.10 Governing Law ................................................ 29
Section 7.11 Submission to Jurisdiction; Waiver of Jury Trial;
Waiver of Immunity ........................................... 29
Section 7.12 Counterparts ................................................. 30
Section 7.13 Entirety ..................................................... 30
Section 7.14 Headings ..................................................... 30
Section 7.15 Liquidity Provider's Obligation to Make Advances ............. 30
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 May 24, 2001, 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-2 Trustee (in such capacity, together with its successors in such capacity,
the "Borrower"), and BOEING CAPITAL CORPORATION, a Delaware corporation (the
"Liquidity Provider").
WITNESSETH:
WHEREAS, pursuant to the Class A-2 Trust Agreement, the Class A-2 Trust
is issuing the Class A-2 Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a
portion of the interest on the Class A-2 Certificates in accordance with their
terms, has requested the Liquidity Provider to enter into this Agreement,
providing in part for the Borrower to request in specified circumstances that
Advances be made hereunder;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
(a) The definitions stated herein apply equally to both the singular and
the plural forms of the terms defined.
(b) All references in this Agreement to designated "Articles",
"Sections", "Annexes" and other subdivisions are to the designated Article,
Section, Annex or other subdivision of this Agreement, unless otherwise
specifically stated.
(c) The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Annex or other subdivision.
(d) Unless the context otherwise requires, whenever the words
"including", "include" or "includes" are used herein, it shall be deemed to be
followed by the phrase "without limitation".
(e) For the purposes of this Agreement, unless the context otherwise
requires, the following capitalized terms shall have the following meanings:
"Advance" means an Interest Advance, a Final Advance, a Provider Advance
or an Applied Provider Advance, as the case may be.
"Agreement" means this Agreement, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
"Applicable Liquidity Rate" has the meaning specified in Section 3.07(g).
"Applicable Margin" means with respect to any Unpaid Advance or Applied
Provider Advance, 2.00%
"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 Seattle,
Washington,
New York,
New York, Dallas, Texas, or, so long as any Class A-2
Certificate is outstanding, the city and state in which the Class A-2 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.
"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 by the Liquidity Provider 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 a Relevant Country in which the
Liquidity Provider is organized and resident for tax purposes or a change in the
Code that overrides the provisions of such treaty or (v) any Taxes caused by any
change in the Lending Office without the prior written consent of American (such
consent not to be unreasonably withheld). "Relevant Country" means any of
Germany, France, the United Kingdom, Switzerland, The Netherlands and Ireland.
"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 November 24, 2001, initially, or any date to which
the Expiry Date is extended pursuant to Section 2.10.
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"Final Advance" means an Advance made pursuant to Section 2.02(d).
"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-2 Cash Collateral Account for the purpose of paying interest
on the Class A-2 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, M/C D091-0070, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other lending office as the Liquidity Provider
from time to time shall notify the Borrower as its lending office hereunder;
provided that the Liquidity Provider shall not change its Lending Office to a
lending office outside of the United States 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.
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"LIBOR Rate" means, with respect to any Interest Period, (a) the rate per
annum appearing on display page 3750 (British Bankers Association - LIBOR) of
the Dow ▇▇▇▇▇ Markets Service (or any successor or substitute therefor) at
approximately 11:00 a.m. (London time) on the day that is two Business Days
prior to the first day of such Interest Period as the rate for dollars deposits
with a maturity comparable to such Interest Period, or (b) if the rate specified
in clause (a) above is not available, the average (rounded up, if necessary, to
the nearest 1/100th of 1%) of the rates per annum 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.
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"Maximum Commitment" means initially $40,105,331, as the same may be
reduced or increased 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.
"Offering Memorandum" means the Offering Memorandum dated May 18, 2001,
relating to the Certificates, as such Offering Memorandum may be amended or
supplemented.
"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, the United
Kingdom or Ireland, (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
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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.
"Provider Advance" means a Downgrade Advance or a Non-Extension Advance.
"Reference Banks" means the principal London offices of: The Royal Bank
of Scotland; ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇; 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.
"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 (whether or not
having the force of law), 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 any other condition
regarding this Agreement or any Advance 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-2 Certificates on the basis of a 360-day year comprised of twelve
30-day months, that would be payable on the Class A-2 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-2 Certificates on such day and
without regard to expected future distributions of principal on the Class A-2
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-2
7
Certificates have been paid in full (or provision has been made for such payment
in accordance with the Intercreditor Agreement and the Class A-2 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.
(f) For the purposes of this Agreement, the following terms shall have
the respective meanings specified in the Intercreditor Agreement:
"Acceleration", "American", "American Bankruptcy Event", "Certificate",
"Class A-1 Certificates", "Class A-2 Cash Collateral Account", "Class A-2
Certificates", "Class A-2 Certificateholders", "Class A-2 Trust", "Class A-2
Trust Agreement", "Class A-2 Trustee", "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", "Leased Aircraft", "Liquidity
Facility", "Liquidity Obligations", "Loan Trustee", "▇▇▇▇▇'▇", "Non-Extended
Facility", "Operative Agreements", "Owned Aircraft", "Participation Agreements",
"Performing Equipment Note", "Person", "Placement Agents", "Placement
Agreement", "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", "United States" and "Written Notice".
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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-2 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 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-2 Cash Collateral
Account in accordance with Sections 3.06(d) and 3.06(f) of the Intercreditor
Agreement.
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(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-2 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-2 Cash
Collateral Account in accordance with Sections 3.06(f) and 3.06(i) of the
Intercreditor Agreement.
(e) Each Borrowing shall be made on notice in writing (a "Notice of
Borrowing") in substantially the form required by Section 2.02(a), 2.02(b),
2.02(c) or 2.02(d), as the case may be, given by the Borrower to the Liquidity
Provider. Each Notice of Borrowing shall be effective upon delivery of a copy
thereof to the Liquidity Provider's office at the address specified in Section
7.02 hereof. If a Notice of Borrowing is delivered by the Borrower in respect of
any Borrowing no later than 1:00 p.m. (New York City time) on a Business Day,
upon satisfaction of the conditions precedent set forth in Section 4.02 with
respect to a requested Borrowing, the Liquidity Provider shall make available to
the Borrower, in accordance with its payment instructions, the amount of such
Borrowing in Dollars and immediately available funds, before 4:00 p.m. (New York
City time) on such Business Day or before 1:00 p.m. (New York City time) on such
later Business Day specified in such Notice of Borrowing. If a Notice of
Borrowing is delivered by the Borrower in respect of any Borrowing after 1:00
p.m. (New York City time) on a Business Day, upon satisfaction of the conditions
precedent set forth in Section 4.02 with respect to a requested Borrowing, the
Liquidity Provider shall make available to the Borrower, in accordance with its
payment instructions, the amount of such Borrowing in Dollars and 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
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such wire transfer instructions as the Borrower shall furnish from time to time
to the Liquidity Provider for such purpose. Each Notice of Borrowing shall be
irrevocable and binding on the Borrower.
(f) Upon the making of any Advance requested pursuant to a Notice of
Borrowing in accordance with the Borrower's payment instructions, the Liquidity
Provider shall be fully discharged of its obligation hereunder with respect to
such Notice of Borrowing, and the 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-2 Certificateholder). If the Liquidity Provider makes an Advance
requested pursuant to a Notice of Borrowing before 12:00 noon (New York City
time) on the second Business Day after the date of payment specified in Section
2.02(e), the Liquidity Provider shall have fully discharged its obligations
hereunder with respect to such Advance and an event of default shall not have
occurred hereunder. Following the making of any Advance pursuant to Section
2.02(b), 2.02(c) or 2.02(d) to fund the Class A-2 Cash Collateral Account, the
Liquidity Provider shall have no interest in or rights to the Class A-2 Cash
Collateral Account, such Advance or any other amounts from time to time on
deposit in the Class A-2 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-2 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, Increase or Termination of the Maximum
Commitment.
(a) Automatic Reduction. Promptly following each date on which the
Required Amount is (i) reduced as a result of a reduction in the Pool Balance of
the Class A-2 Certificates or otherwise, the Maximum Commitment shall
automatically be reduced to an amount equal to such reduced Required Amount (as
calculated by the Borrower) and (ii) increased or decreased as a result of any
increase or decrease in the Stated Interest Rate of the Class A-2 Certificates
pursuant to the definition of "Stated Interest Rate" set forth in the
Intercreditor Agreement, the Maximum Commitment shall be automatically increased
or decreased to an amount equal to such increased or decreased Required Amount
(as calculated by the Borrower). The Borrower shall give
11
notice of any such automatic reduction or increase of the Maximum Commitment to
the Liquidity Provider and American within two Business Days thereof. The
failure by the Borrower to furnish any such notice shall not affect any such
automatic reduction or increase 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-2 Cash Collateral Account and invested and withdrawn
from the Class A-2 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
12
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-2 Cash Collateral
Account for the purpose of paying interest on the Class A-2 Certificates in
accordance with Section 3.06(f) of the Intercreditor Agreement (the amount of
any such withdrawal being (y) in the case of a Downgrade Advance, an "Applied
Downgrade Advance" and (z) in the case of a Non- Extension Advance, an "Applied
Non-Extension Advance" and, together with an Applied Downgrade Advance, an
"Applied Provider Advance") shall thereafter (subject to Section 2.06(b)) be
treated as an Interest Advance under this Agreement for 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-2 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-2 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-2 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.
13
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.
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 relating to the Owned Aircraft and Section 10 of the Participation
Agreements relating to the Leased Aircraft 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-2 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. By
written agreement between the Borrower and the Liquidity Provider, entered into
at any time prior to the 25(th) day prior to the then-effective Expiry Date
(with the written consent of ▇▇▇▇▇'▇, so long as Boeing Capital Corporation is
the Liquidity Provider), the then-
14
effective Expiry Date may be extended, effective on such 25th day (unless such
then- effective Expiry Date is on or after the date that is 15 days after the
Final Legal Distribution Date for the Class A-2 Certificates), for a period of
364 days after such then- effective Expiry Date (unless the obligations of the
Liquidity Provider are earlier terminated in accordance with the terms hereof).
If the Borrower and the Liquidity Provider do not so agree to extend the
then-effective Expiry Date, (or if ▇▇▇▇▇'▇ does not consent to such extension,
if Boeing Capital Corporation is the Liquidity Provider) prior to such 25(th)
day (and 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 such 25th day (but prior to such Expiry Date) to request a
Non- Extension Advance in accordance with Section 2.02(b) hereof and Section
3.06(d) of the Intercreditor Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01 Increased Costs. If as a result of any Regulatory Change or
any compliance by the Liquidity Provider or its head office with any official
request or directive regarding the same (whether or not having the force of law)
there shall be (x) 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,
(y) 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, or (z) any reduction
reasonably deemed by the Liquidity Provider to be material in the rate of return
on the Liquidity Provider's capital as a consequence of its commitment
hereunder, its funding Advances or maintaining Unpaid Advances or its funding or
maintaining the Downgrade Advance or the Non-Extension Advance to a level below
that which the Liquidity Provider could have achieved but for such adoption,
change or compliance (taking into consideration the Liquidity Provider's
policies with respect to capital adequacy), and in case of any 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
15
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 after obtaining actual knowledge 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 (consistent with its internal lending
policies and legal and regulatory restrictions) for reducing any Increased Costs
and to use all commercially reasonable efforts (consistent with its internal
lending policies and legal and regulatory restrictions) 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
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 document
issued by the Basel Committee on Banking Supervision entitled "The New Basel
Capital Accord" 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 commercial banking institutions organized 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) to the extent that amounts claimed hereunder result from a failure by
the Liquidity Provider to comply with its obligations under this Section 3.01;
or (d) to the extent the Liquidity Provider is not also seeking payment for
similar increased costs in other similarly situated transactions.
Section 3.02 [Intentionally omitted.]
16
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 the Liquidity Provider is
not a United States person for U.S. federal income tax purposes and 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 and actually utilizes 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 utilized.
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 or Form W-8ECI, as applicable, if
the Liquidity Provider is not a United States person for U.S. federal income tax
purposes, including thereon a valid U.S. taxpayer identification number (or,
with respect to any such participant, such form or documentation as may be
applicable) covering all amounts receivable by it in connection with the
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
17
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. Whenever any Tax is payable with respect to
a payment hereunder, as promptly as possible thereafter, 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. The Borrower shall, for federal income tax purposes, treat any
Advances as a loan to the Subordination Agent on behalf of the Class A-2 Trust,
unless otherwise required by law.
Section 3.04 Payments. The Borrower shall make or cause to be made each
payment to the Liquidity Provider under this Agreement so as to cause the same
to be received by the Liquidity Provider not later than 1:00 P.M. (New York City
time) on the day when due. The Borrower shall make all such payments in Dollars,
to the Liquidity Provider in immediately available funds, by wire transfer to:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇; ABA #▇▇▇▇▇▇▇▇▇; Account name:
Boeing Capital Corporation; Account number: 910 1 307412; Reference: Liquidity
Facility Fee, or to such other account as the Liquidity Provider may from time
to time direct the Subordination Agent.
Section 3.05 Computations. All computations of interest based on the Base
Rate shall be made on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the LIBOR Rate shall be made on
the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest is payable.
Section 3.06 Payment on Non-Business Days. Whenever any payment to be
made hereunder shall be stated to be due on a day other than a Business Day,
such
18
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-2 Cash Collateral Account to pay
interest on the Class A-2 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-2 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
19
such election 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-2
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 2.00% 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
20
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 (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 (consistent with its internal lending policies and legal and
regulatory restrictions) to avoid 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
21
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):
(a) The Liquidity Provider shall have received on or before the Closing
Date each of the following, and in the case of each document delivered pursuant
to paragraphs (i), (ii), (iii) and (iv), each in form and substance satisfactory
to the Liquidity Provider:
(i) This Agreement duly executed on behalf of the Borrower;
(ii) The Intercreditor Agreement duly executed on behalf of each
of the parties thereto (other than the Liquidity Provider);
(iii) Fully executed copies of each of the Operative Agreements
executed and delivered on or before the Closing Date (other than this
Agreement and the Intercreditor Agreement);
(iv) A fully executed copy of the Fee Letter;
(v) A copy of the Offering Memorandum and specimen copies of the
Class A-2 Certificates;
(vi) An executed copy of each document, instrument, certificate
and opinion delivered on or before the Closing Date pursuant to the Class
A-2 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
(vii) 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.
22
(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 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.
(d) 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 Liquidity Facilities shall have been
satisfied or waived, and all conditions precedent to the purchase of the
Certificates by the Placement Agents under the Placement Agreement shall have
been satisfied (unless any of such conditions precedent under the Placement
Agreement shall have been waived by the Placement Agents).
(e) The Borrower and American shall have received a certificate, dated
the Effective Date signed by a duly authorized representative of the Liquidity
Provider, certifying that all conditions precedent specified in this Section
4.01 have been satisfied or waived by the Liquidity Provider.
Section 4.02 Conditions Precedent to Borrowing. The obligation of the
Liquidity Provider to make an Advance on the occasion of each Borrowing shall be
subject to the conditions precedent that the Effective Date shall have occurred
and, prior to the time of such Borrowing, the Borrower shall have delivered a
Notice of Borrowing which conforms to the terms and conditions of this
Agreement.
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
23
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 subject to Section 7.01(b) of the Intercreditor
Agreement, so long as any Advance shall remain unpaid or the Liquidity Provider
shall have any Maximum Commitment hereunder or the Borrower shall have any
obligation to pay any amount to the Liquidity Provider hereunder, the Borrower
will not appoint or permit or suffer to be appointed any successor Borrower
without the prior written consent of the Liquidity Provider, which consent shall
not be unreasonably withheld or delayed.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01 Liquidity Events of Default. If 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
24
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 received 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),
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, to:
Operations Department
C/O BOEING CAPITAL CORPORATION
Mail Code 6Y-16
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
BOEING CAPITAL CORPORATION
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, M/C D091-0070
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: BCC Treasury
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
25
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 relating to the
Owned Aircraft and Section 10 of the Participation Agreements relating to the
Leased Aircraft. 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 relating to the
26
Owned Aircraft and Section 10 of the Participation Agreements relating to the
Leased Aircraft. The provisions of Sections 3.01, 3.03, 3.09, 7.05 and 7.07
hereof and the indemnities contained in Section 4.02 of the Participation
Agreements relating to the Owned Aircraft and Section 10 of the Participation
Agreements relating to the Leased Aircraft 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 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
counsel for the Liquidity Provider in connection with any waiver or consent
under the Operative Documents 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
27
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).
(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 or a corporation formed under the laws of the United States or any
state thereof, (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
28
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 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
29
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 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
30
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.
31
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-2 Trust, as
Borrower
By:
-------------------------------
Name:
Title:
BOEING CAPITAL CORPORATION,
as Liquidity Provider
By:
-------------------------------
Name:
Title:
32
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 Boeing Capital Corporation (the "Liquidity
Provider"), with reference to the
Revolving Credit Agreement (2001-1A-2), dated
as of May __, 2001, 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-2 Certificates which is payable on _________, _____ (the
"Distribution Date") in accordance with the terms and provisions of the Class
A-2 Trust Agreement and the Class A-2 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-2 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-1 Certificates, the Class B
Certificates or the Class C Certificates, (iii) was computed in accordance with
the provisions of the Class A-2 Certificates, the Class A-2 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.
I-1
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, the making of the Interest Advance as requested by this Notice of
Borrowing shall automatically reduce, subject to reinstatement in accordance
with the terms of the Liquidity Agreement, the Maximum Available Commitment by
an amount equal to the amount of the Interest Advance requested to be made
hereby as set forth in clause (i) of paragraph (3) of this 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
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest Advance Notice of
Borrowing]
I-3
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 Boeing Capital
Corporation (the "Liquidity Provider"), with reference to the
Revolving Credit
Agreement (2001-1A-2), dated as of May __, 2001, 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-2 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-2 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-2 Certificates, or principal of, or
interest or premium on, the Class A-1 Certificates, the Class B Certificates or
the Class C Certificates, (iii) was computed in accordance with the provisions
of the Class A-2 Certificates, the Class A-2 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-2 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.
II-1
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Non-Extension Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the obligation
of the Liquidity Provider to make further Advances under the Liquidity Agreement
and (B) following the making by the Liquidity Provider of the Non-Extension
Advance requested by this Notice of Borrowing, the Borrower shall not be
entitled to request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice
of Borrowing as of the _____ day of _______, ______ .
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
II-2
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Non-Extension Advance Notice of
Borrowing].
II-3
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 Boeing Capital
Corporation (the "Liquidity Provider"), with reference to the
Revolving Credit
Agreement (2001-1A-2), dated as of May __, 2001, 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-2 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-2 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-2 Certificates, or principal of, or
interest or premium on, the Class A-1 Certificates, the Class B Certificates or
the Class C Certificates, (iii) was computed in accordance with the provisions
of the Class A-2 Certificates, the Class A-2 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-2 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.
III-1
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Downgrade Advance as requested by this Notice
of Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement and
(B) following the making by the Liquidity Provider of the Downgrade Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice
of Borrowing as of the __ day of ____________, ____.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
III-2
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Downgrade Advance Notice of
Borrowing].
III-3
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 Boeing Capital Corporation (the "Liquidity
Provider"), with reference to the Revolving Credit Agreement (2001-1A-2), dated
as of May __, 2001, 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-2 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-2 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-2 Certificates, or principal of, or interest or premium
on, the Class A-1 Certificates, the Class B Certificates or the Class C
Certificates, (iii) was computed in accordance with the provisions of the Class
A-2 Certificates, the Class A-2 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-2 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.
IV-1
[(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 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
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Final Advance Notice of
Borrowing]
IV-3
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 May __, 2001, 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 2001- 1A-2, as Borrower, and Boeing Capital Corporation
(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,
Boeing Capital Corporation,
as Liquidity Provider
By:
-------------------------------
Name:
Title:
cc: State Street Bank and Trust Company of Connecticut,
National Association, as Class A-2 Trustee
V-1
ANNEX VI to
REVOLVING CREDIT AGREEMENT
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Re: Revolving Credit Agreement, dated as of May __, 2001, 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 2001- 1A-2, as Borrower, and Boeing Capital Corporation
(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