Exhibit 4(c)(1)
EXECUTION COPY
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REVOLVING CREDIT AGREEMENT
(2002-1G)
Dated as of September 24, 2002
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 2002-1G
as Borrower
and
WESTLB AG, NEW YORK BRANCH,
as Primary Liquidity Provider
American Airlines Pass Through Trust 2002-1G
American Airlines
Pass Through Certificates,
Series 2002-1G
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ARTICLE I
DEFINITIONS
Section 1.01 Definitions........................................................................ 1
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01 The Advances....................................................................... 8
Section 2.02 Making of Advances................................................................. 8
Section 2.03 Fees............................................................................... 11
Section 2.04 Reduction or Termination of the Maximum Commitment................................. 11
Section 2.05 Repayments of Interest Advances or the Final Advance............................... 11
Section 2.06 Repayments of Provider Advances.................................................... 11
Section 2.07 Payments to the Primary Liquidity Provider Under the Intercreditor Agreement....... 13
Section 2.08 Book Entries....................................................................... 13
Section 2.09 Payments from Available Funds Only................................................. 13
Section 2.10 Extension of the Expiry Date; Non-Extension Advance................................ 13
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01 Increased Costs.................................................................... 14
Section 3.02 [Intentionally omitted.]........................................................... 15
Section 3.03 Withholding Taxes.................................................................. 15
Section 3.04 Payments........................................................................... 17
Section 3.05 Computations....................................................................... 17
Section 3.06 Payment on Non-Business Days....................................................... 17
Section 3.07 Interest........................................................................... 18
Section 3.08 Replacement of Borrower............................................................ 19
Section 3.09 Funding Loss Indemnification....................................................... 19
Section 3.10 Illegality......................................................................... 19
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ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to Effectiveness of Section 2.01.............................. 20
Section 4.02 Conditions Precedent to Borrowing.................................................. 21
ARTICLE V
COVENANTS
Section 5.01 Affirmative Covenants of the Borrower.............................................. 21
Section 5.02 Negative Covenants of the Borrower................................................. 22
Section 5.03 Covenants Regarding Certain Notices................................................ 22
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01 Liquidity Events of Default........................................................ 23
ARTICLE VII
MISCELLANEOUS
Section 7.01 No Oral Modifications or Continuing Waivers........................................ 23
Section 7.02 Notices............................................................................ 23
Section 7.03 No Waiver; Remedies................................................................ 24
Section 7.04 Further Assurances................................................................. 24
Section 7.05 Indemnification; Survival of Certain Provisions.................................... 24
Section 7.06 Liability of the Primary Liquidity Provider........................................ 24
Section 7.07 Certain Costs and Expenses......................................................... 25
Section 7.08 Binding Effect; Participations..................................................... 25
Section 7.09 Severability....................................................................... 27
Section 7.10 Governing Law...................................................................... 27
Section 7.11 Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity............... 27
Section 7.12 Counterparts....................................................................... 28
Section 7.13 Entirety........................................................................... 28
Section 7.14 Headings........................................................................... 28
Section 7.15 Primary Liquidity Provider's Obligation to Make Advances........................... 28
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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 September 24, 2002, 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 agent and trustee for the Class G Trustee (in such
capacity, together with its successors in such capacity, the "Borrower"), and
WESTLB AG, a joint stock company organized under German law, acting through its
New York Branch (the "Primary Liquidity Provider").
W I T N E S S E T H:
WHEREAS, pursuant to the Class G Trust Agreement, the Class G Trust is
issuing the Class G Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a portion
of the interest on the Class G Certificates in accordance with their terms, has
requested the Primary 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".
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(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 (i) with respect to any Unpaid Advance or
Applied Provider Advance, 2.50% and (ii) with respect to any Unapplied Provider
Advance, 0.00%.
"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 Primary 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.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which commercial banks are required or authorized to close in New York, New
York, Dallas, Texas, or, so long as any Class G Certificate is outstanding, the
city and state in which the Class G Trustee, the Borrower or any related Loan
Trustee maintains its Corporate Trust Office or receives or disburses
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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 Primary 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 Primary Liquidity
Provider and the United States or such political subdivision or taxing
authority, other than a connection arising solely from the Primary 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 Primary 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
Primary 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(e)
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 September 22, 2003, initially, or any date to which
the Expiry Date is extended pursuant to Section 2.10, or if any such day is not
a Business Day, the preceding Business Day.
"Final Advance" means an Advance made pursuant to Section 2.02(d).
"Increased Cost" has the meaning specified in Section 3.01.
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"Intercreditor Agreement" means the Intercreditor Agreement, dated as of
the date hereof, among the Trustees, the Primary Liquidity Provider, the
liquidity provider under each Primary Liquidity Facility (other than this
Agreement), the Above-Cap Liquidity Provider, the Policy Provider and the
Subordination Agent, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"Interest Advance" means an Advance made pursuant to Section 2.02(a).
"Interest Period" means, with respect to any LIBOR Advance, each of the
following periods:
(i) the period beginning on the third Business Day following
either (A) the Primary 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 G Primary Cash Collateral Account for the purpose of
paying interest on the Class G Certificates as contemplated by Section
2.06(a) hereof and, in each case, ending on the next Regular Distribution
Date (or, if such Regular Distribution Date is not a Business Day, the
next succeeding Business Day); and
(ii) each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the next Regular
Distribution Date (or, if such Regular Distribution Date is not a Business
Day, the next succeeding Business Day);
provided, however, that if (x) the Final Advance shall have been made pursuant
to Section 2.02(d) or (y) other outstanding Advances shall have been converted
into the Final Advance pursuant to Section 6.01, then the Interest Periods shall
be successive periods of one month beginning on the third Business Day following
the Primary Liquidity Provider's receipt of the Notice of Borrowing for such
Final Advance (in the case of clause (x) above) or the Regular Distribution Date
following such conversion (in the case of clause (y) above), each such one month
period to be subject to the "following business day" methodology set forth in
clauses (i) and (ii) above.
"Lending Office" means the lending office of the Primary Liquidity
Provider presently located at New York, New York, or such other lending office
as the Primary Liquidity Provider from time to time shall notify the Borrower as
its lending office hereunder; provided that the Primary Liquidity Provider shall
not change its Lending Office without the prior written consent of American
(such consent not to be unreasonably withheld).
"LIBOR Advance" means an Advance bearing interest at a rate based upon the
LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period, (a) the 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
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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 Primary Liquidity Provider, its
directors, officers, employees and agents, and its successors and permitted
assigns.
"Maximum Available Commitment" means, subject to the proviso contained in
the third sentence of Section 2.02(a), at any time of determination, (a) the
Maximum Commitment at such time less (b) the aggregate amount of each Interest
Advance outstanding at such time; provided that following a Provider Advance or
a Final Advance, the Maximum Available Commitment shall be zero.
"Maximum Commitment" means initially $83,046,486.11 as the same may be
reduced from time to time in accordance with Section 2.04(a).
"Non-Extension Advance" means an advance made pursuant to Section 2.02(b).
"Notice of Borrowing" has the meaning specified in Section 2.02(e).
"Notice of Replacement Subordination Agent" has the meaning specified in
Section 3.08.
"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.
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"Permitted Transferee" means any Person that:
(a) is not a commercial air carrier, American or any affiliate of American;
and
(b) is any one of:
(1) a commercial banking institution organized under the laws of
the United States or any state thereof or the District of Columbia;
(2) a commercial banking institution that (x) is organized under
the laws of France, Germany, The Netherlands, Switzerland, or the United
Kingdom, (y) is entitled on the date it acquires any Participation to a
complete exemption from United States federal income taxes for all income
derived by it from the transactions contemplated by the Operative
Agreements under an income tax treaty, as in effect on such date, between
the United States and such jurisdiction of its organization and (z) is
engaged in the active conduct of a banking business in such jurisdiction
of its organization, holds its Participation in connection with such
banking business in such jurisdiction and is regulated as a commercial
banking institution by the appropriate regulatory authorities in such
jurisdiction; or
(3) a commercial banking institution that (x) is organized under
the laws of Canada, France, Germany, Ireland, Japan, Luxembourg, The
Netherlands, Sweden, Switzerland or the United Kingdom and (y) is entitled
on the date it acquires any Participation to a complete exemption from
withholding of United States federal income taxes for all income derived
by it from the transactions contemplated by the Operative Agreements under
laws as in effect on such date by reason of such income being effectively
connected with the conduct of a trade or business within the United
States.
"Primary Liquidity Provider" has the meaning specified in the introductory
paragraph to this Agreement.
"Prospectus Supplement" means the Prospectus Supplement, dated September
17, 2002, relating to the Certificates, as such Prospectus Supplement may be
amended or supplemented.
"Provider Advance" means a Downgrade Advance or a Non-Extension Advance.
"Reference Banks" means the principal London offices of: WestLB AG; ▇▇
▇▇▇▇▇▇ Chase; 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
Primary 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 Primary 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 Primary
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Liquidity Provider's jurisdiction of organization charged with responsibility
for the administration or application thereof, that shall impose, modify or deem
applicable (a) any reserve, special deposit or similar requirement against
extensions of credit or other assets of, or deposits with or other liabilities
of, the Primary Liquidity Provider including, or by reason of, the Advances or
(b) any capital adequacy requirement requiring the maintenance by the Primary
Liquidity Provider of capital or additional capital in respect of any Advances
or the Primary 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 Capped Interest Rate for
the Class G Certificates on the basis of the actual number of days elapsed over
a 360-day year, that would be payable on the Class G Certificates on each of the
six successive Regular Distribution Dates immediately following such day or, if
such day is a Regular Distribution Date, on such day and the succeeding five
Regular Distribution Dates, in each case calculated on the basis of the Pool
Balance of the Class G Certificates on such day and without regard to expected
future distributions of principal on the Class G Certificates; provided, that if
a Policy Provider Election has been made, for purposes of this definition, the
Pool Balance shall be deemed to be reduced by an amount (if positive) by which
(a) the then outstanding principal balance of the Series G Equipment Notes in
respect of which the Policy Provider Election has been made exceeds (b) the
amount of any policy drawings previously paid by the Policy Provider in respect
of principal on such Series G Equipment Notes.
"Termination Date" means the earliest to occur of the following: (i) the
Expiry Date; (ii) the date on which the Borrower delivers to the Primary
Liquidity Provider a certificate, signed by a Responsible Officer of the
Borrower, certifying that (x) all of the Class G Certificates have been paid in
full (or provision has been made for such payment in accordance with the
Intercreditor Agreement and the Class G Trust Agreement), (y) each of the
Indentures has been terminated with respect to all of the Equipment Notes issued
thereunder as contemplated by clause (i) of Section 10.01(a) of such Indenture
or (z) the Class G Certificates are otherwise no longer entitled to the benefits
of this Agreement; (iii) the date on which the Borrower delivers to the Primary
Liquidity Provider a certificate, signed by a Responsible Officer of the
Borrower, certifying that a Replacement Primary 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 Primary 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.
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"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:
"Above-Cap Liquidity Provider", "Acceleration", "American", "American
Bankruptcy Event", "Capped Interest Rate", "Certificate", "Class C
Certificates", "Class G Certificates", "Class G Certificateholders", "Class G
Primary Cash Collateral Account", "Class G Trust", "Class G Trust Agreement",
"Class G Trustee", "Closing Date", "Collection Account", "Controlling Party",
"Corporate Trust Office", "Distribution Date", "Dollars", "Downgraded Facility",
"Equipment Notes", "Fee Letter", "Final Drawing", "Final Legal Distribution
Date", "Indenture", "Interest Payment Date", "Investment Earnings", "Liquidity
Obligations", "Loan Trustee", "▇▇▇▇▇'▇", "Non-Extended Facility", "Operative
Agreements", "Participation Agreement", "Performing Equipment Notes", "Person",
"Policy Provider", "Policy Provider Election", "Pool Balance", "Primary
Liquidity Facility","Rating Agencies", "Ratings Confirmation", "Regular
Distribution Dates", "Replacement Primary Liquidity Facility", "Responsible
Officer", "Scheduled Payment", "Series G Equipment Notes", "Special Payment",
"S&P", "Stated Interest Rate", "Subordination Agent", "Taxes", "Threshold
Rating", "Trust Agreement", "Trustee", "Underwriters", "Underwriting Agreement",
"United States" and "Written Notice".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01 The Advances. The Primary 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 Primary 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 Primary Liquidity
Provider upon delivery to the Primary 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 G Certificates at the
Stated Interest Rate therefor in accordance with Section 3.06(a) and 3.06(b) of
the Intercreditor Agreement. Each Interest Advance made hereunder shall
automatically reduce the Maximum Available Commitment and the amount available
to be borrowed hereunder by subsequent Advances by the amount of such Interest
Advance (subject to reinstatement as provided in the next sentence). Subject to
the
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provisions of Section 3.06(g) of the Intercreditor Agreement, upon repayment to
the Primary 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 Primary Liquidity Provider if this Agreement is not extended in accordance
with Section 3.06(d) of the Intercreditor Agreement (unless a Replacement
Primary 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 Primary 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 G Primary Cash Collateral Account in accordance with Sections
3.06(d) and 3.06(f) of the Intercreditor Agreement.
(c) If at any time the short-term issuer credit rating (with respect to
S&P) or short-term unsecured debt rating (with respect to ▇▇▇▇▇'▇) of the
Primary Liquidity Provider issued by either Rating Agency (or if the Primary
Liquidity Provider does not have such a rating issued by a given Rating Agency,
the long-term issuer credit rating (with respect to S&P) or long-term unsecured
debt rating (with respect to ▇▇▇▇▇'▇) of the Primary Liquidity Provider) is
lower than the Threshold Rating (as provided for in Section 3.06(c) of the
Intercreditor Agreement), a Downgrade Advance shall be made by the Primary
Liquidity Provider on the 10th day following such downgrade (or, if such 10th
day is not a Business Day, on the next succeeding Business Day), unless a
Replacement Primary 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 Primary 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 G Primary 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 Primary Liquidity Provider
following the receipt by the Borrower of a Termination Notice from the Primary
Liquidity Provider pursuant to Section 6.01 upon delivery to the Primary
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 G Primary Cash Collateral Account in
accordance with Sections 3.06(f) and 3.06(i) of the Intercreditor Agreement.
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(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 Primary
Liquidity Provider. Each Notice of Borrowing shall be effective upon delivery of
a copy thereof to the Primary Liquidity Provider's office at the address
specified in Section 7.02. If a Notice of Borrowing is delivered by the Borrower
in respect of any Borrowing no later than 1:00 p.m. (New York City time) on a
Business Day, upon satisfaction of the conditions precedent set forth in Section
4.02 with respect to a requested Borrowing, the Primary 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 Primary Liquidity Provider shall make available to the Borrower,
in accordance with its payment instructions, the amount of such Borrowing in
Dollars and immediately available funds, before 1:00 p.m. (New York City time)
on the first Business Day next following the day of receipt of such Notice of
Borrowing or on such later Business Day specified by the Borrower in such Notice
of Borrowing. Payments of proceeds of a Borrowing shall be made by wire transfer
of immediately available funds to the Borrower in accordance with such wire
transfer instructions as the Borrower shall furnish from time to time to the
Primary 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 Primary
Liquidity Provider shall be fully discharged of its obligation hereunder with
respect to such Notice of Borrowing, and the Primary Liquidity Provider shall
not thereafter be obligated to make any further Advances hereunder in respect of
such Notice of Borrowing to the Borrower or to any other Person (including the
Trustee or any Class G Certificateholder). If the Primary 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 Primary 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 G
Primary Cash Collateral Account, the Primary Liquidity Provider shall have no
interest in or rights to the Class G Primary Cash Collateral Account, such
Advance or any other amounts from time to time on deposit in the Class G Primary
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 Primary Liquidity Provider to provide written instructions with respect to
the investment and reinvestment of amounts in the Class G Primary 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 Primary
10
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 Primary Liquidity
Provider the fees set forth in the Fee Letter.
Section 2.04 Reduction or Termination of the Maximum Commitment.
(a) Automatic Reduction. Promptly following each date on which the
Required Amount is reduced as a result of a reduction in the Pool Balance of the
Class G Certificates (including by reason of a Policy Provider Election with
respect to one or more Series G Equipment Notes) or otherwise, the Maximum
Commitment shall automatically be reduced to an amount equal to such reduced
Required Amount (as calculated by the Borrower). The Borrower shall give notice
of any such automatic reduction of the Maximum Commitment to the Primary
Liquidity Provider and American within two Business Days thereof. The failure by
the Borrower to furnish any such notice shall not affect any such automatic
reduction of the Maximum Commitment.
(b) Termination. Upon the making of any Provider Advance or Final
Advance hereunder or the occurrence of the Termination Date, the obligation of
the Primary 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 Primary Liquidity Provider
(which notice and demand are hereby waived by the Borrower), to pay, or to cause
to be paid, to the Primary Liquidity Provider (a) on each date on which the
Primary 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 Primary Liquidity Provider
shall make a Provider Advance at any time after making one or more Interest
Advances which shall not have been repaid in accordance with this Section 2.05
or (ii) this Agreement shall become a Downgraded Facility or Non-Extended
Facility at any time when unreimbursed Interest Advances have reduced the
Maximum Available Commitment to zero, then such Interest Advances shall cease to
constitute Unpaid Advances and shall be deemed to have been changed into an
Applied Downgrade Advance or an Applied Non-Extension Advance, as the case may
be, for all purposes of this Agreement (including, without limitation, for the
purpose of determining when such Interest Advance is required to be repaid to
the Primary Liquidity Provider in accordance with Section 2.06 and for the
purposes of Section 2.06(b)). The Borrower and the Primary 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 Primary Liquidity Provider. For the
avoidance of doubt, interest
11
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 G Primary Cash Collateral Account and invested and
withdrawn from the Class G Primary 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 Primary
Liquidity Provider, on each Regular Distribution Date, commencing on the first
Regular Distribution Date after the making of a Provider Advance, interest on
the principal amount of any such Provider Advance, in the amounts determined as
provided in Section 3.07; provided, however, that amounts in respect of a
Provider Advance withdrawn from the Class G Primary Cash Collateral Account for
the purpose of paying interest with respect to the Class G Certificates in
accordance with Section 3.06(f) of the Intercreditor Agreement (the amount of
any such withdrawal being (y) in the case of a Downgrade Advance, an "Applied
Downgrade Advance" and (z) in the case of a Non-Extension Advance, an "Applied
Non-Extension Advance" and, together with an Applied Downgrade Advance, an
"Applied Provider Advance") shall thereafter (subject to Section 2.06(b)) be
treated as an Interest Advance under this Agreement for all purposes hereunder,
including for purposes of determining the Applicable Liquidity Rate for interest
payable thereon and the dates on which such interest is payable; provided
further, however, that if, following the making of a Provider Advance, the
Primary 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 G Primary Cash Collateral Account on
account of a reduction in the Required Amount, the Borrower shall repay to the
Primary 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 G Primary 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.
12
(c) Upon the provision of a Replacement Primary 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 G Primary Cash Collateral
Account after giving effect to any Applied Provider Advance on the date of such
replacement shall be reimbursed to the Primary Liquidity Provider, but only to
the extent such amounts are necessary to repay in full to the Primary Liquidity
Provider all amounts owing to it hereunder.
Section 2.07 Payments to the Primary Liquidity Provider Under the
Intercreditor Agreement. In order to provide for payment or repayment to the
Primary 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 Primary 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 Primary 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 Primary Liquidity Provider shall be
applied by the Primary 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 Primary 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 Primary
Liquidity Provider to maintain such account or accounts shall not affect the
obligations of the Borrower in respect of Advances.
Section 2.09 Payments from Available Funds Only. All payments to be made
by the Borrower under this Agreement shall be made only from the amounts that
constitute Scheduled Payments, Special Payments and other payments under the
Operative Agreements, including payment under Section 4.02 of the Participation
Agreements and payments under Section 2.14 of the Indentures, and only to the
extent that the Borrower shall have sufficient income or proceeds therefrom to
enable the Borrower to make payments in accordance with the terms hereof after
giving effect to the priority of payments provisions set forth in the
Intercreditor Agreement. The Primary 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 G Primary 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.
13
Section 2.10 Extension of the Expiry Date; Non-Extension Advance. At any
time during the period no later than the 25th day and no earlier than the 60th
day prior to the then-effective Expiry Date, the Borrower may provide notice to
the Primary Liquidity Provider and the Primary Liquidity Provider may provide
notice to the Borrower of the then-effective Expiry Date. If the Expiry Date is
prior to the date that is 15 days after the Final Legal Distribution Date for
the Class G Certificates, by written agreement between the Borrower and the
Primary Liquidity Provider, entered into at any time prior to the 25th day prior
to the then-effective Expiry Date, the then-effective Expiry Date may be
extended, effective on such 25th day, to the earlier of (i) the date that is 15
days after the Final Legal Distribution Date for the Class G Certificates and
(ii) the date that is the last day of the 364 day period immediately following
such then-effective Expiry Date (unless in either case the obligations of the
Primary Liquidity Provider are earlier terminated in accordance with the terms
hereof). If the Borrower and the Primary Liquidity Provider do not so agree to
extend the then-effective Expiry Date prior to such 25th day (and if the Primary
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
there shall be any increase by an amount reasonably deemed by the Primary
Liquidity Provider to be material in the actual cost to the Primary Liquidity
Provider of making, funding or maintaining any Advances or its obligation to
make any such Advances, or there shall be any reduction by an amount reasonably
deemed by the Primary Liquidity Provider to be material in (x) its return on
capital or equity or (y) the amount receivable by the Primary Liquidity Provider
under this Agreement or the Intercreditor Agreement in respect thereof, and in
the case of any such increase or reduction, such event does not arise from the
gross negligence or willful misconduct of the Primary 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 Primary 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 Primary Liquidity Provider describing in reasonable detail the
event by reason of which it claims such Increased Cost and the basis for the
determination of the amount of such Increased Cost; provided that, the Borrower
shall be obligated to pay amounts only with respect to any Increased Costs
accruing from the date 45 days prior to the date of delivery of such
certificate. Such certificate, in the absence of manifest error, shall be
considered prima facie evidence of the amount for purposes of this Agreement;
provided that any determinations and allocations by the Primary Liquidity
Provider of the effect of any Regulatory Change on the costs of maintaining the
14
Advances are made on a reasonable basis. The Primary Liquidity Provider shall
not be entitled to assert any claim under this Section 3.01 in respect of or
attributable to Taxes. The Primary Liquidity Provider will notify the Borrower
and American as promptly as practicable of any event occurring after the date of
this Agreement that will entitle the Primary Liquidity Provider to compensation
under this Section 3.01. The Primary Liquidity Provider agrees to investigate
all commercially reasonable alternatives for reducing any Increased Costs and to
use all commercially reasonable efforts to avoid or reduce, to the 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 Primary Liquidity Provider to
take any action that would, in its reasonable judgment, cause the Primary
Liquidity Provider to incur any material loss or cost, unless the Borrower or
American agrees to reimburse the Primary 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 Primary 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 Primary 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 Primary Liquidity Provider and
that do not affect similar 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) if the Primary Liquidity Provider shall fail to comply with its
obligations under this Section 3.01; or (d) if the Primary Liquidity Provider is
not also seeking payment for similar increased costs in other similarly situated
transactions.
Section 3.02 [Intentionally omitted.]
Section 3.03 Withholding Taxes.
(a) All payments made by the Borrower under this Agreement shall be made
without deduction or withholding for or on account of any Taxes, unless such
deduction or withholding is required by law. If any Taxes are so required to be
withheld or deducted from any amounts payable to the Primary Liquidity Provider
under this Agreement, the Borrower shall pay to the relevant authorities the
full amount so required to be deducted or withheld and, if such Taxes are
Covered Taxes, pay to the Primary Liquidity Provider such additional amounts as
shall be necessary to ensure that the net amount actually received by the
Primary Liquidity Provider (after deduction or
15
withholding of all Covered Taxes) shall be equal to the full amount that would
have been received by the Primary Liquidity Provider had no withholding or
deduction of Covered Taxes been required. The Primary 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 Primary Liquidity Provider, be otherwise materially disadvantageous to the
Primary Liquidity Provider. If the Primary Liquidity Provider receives a refund
of, or realizes a net Tax benefit not otherwise available to it as a result of,
any Taxes for which additional amounts were paid by the Borrower pursuant to
this Section 3.03, the Primary 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 Primary 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, 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 Primary Liquidity Provider and (ii) provide
timely notice to the Borrower if any such form or documentation is or becomes
inaccurate. The Primary 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
Primary Liquidity Provider under this Agreement shall be made free and clear of,
and without reduction for or on account of, any Taxes. If any Taxes are required
to be withheld or deducted from any amounts payable to the Borrower under this
Agreement, the Primary 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 Primary 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 Primary 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
16
Borrower shall deliver the Primary 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 Primary 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 G Trust, unless otherwise
required by law.
Section 3.04 Payments. The Borrower shall make or cause to be made each
payment to the Primary Liquidity Provider under this Agreement so as to cause
the same to be received by the Primary 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 Primary Liquidity Provider in immediately available
funds, by wire transfer to: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ABA #021 000 021 for the account of
WestLB AG New York Branch, Account Number: ▇▇▇-▇-▇▇▇▇▇▇, Reference: American
Airlines, Inc. EETC 2002-1 LF-GSF Transportation (69170); or to such other
account as the Primary Liquidity Provider may from time to time direct the
Subordination Agent.
Section 3.05 Computations. All computations of interest based on the Base
Rate shall be made on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the LIBOR Rate shall be made on
the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest is payable.
Section 3.06 Payment on Non-Business Days. Whenever any payment to be made
hereunder shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day and no additional
interest shall be due as a result (and if so made, shall be deemed to have been
made when due). If any payment in respect of interest on an Advance is so
deferred to the next succeeding Business Day, such deferral shall not delay the
commencement of the next Interest Period for such Advance (if such Advance is a
LIBOR Advance) or reduce the number of days for which interest will be payable
on such Advance on the next interest payment date for such Advance.
Section 3.07 Interest.
(a) Subject to Sections 2.07 and 2.09, the Borrower shall pay, or shall
cause to be paid, without duplication, interest on (i) the unpaid principal
amount of each Advance from and including the date of such Advance (or, in the
case of an Applied Provider Advance, from and including the date on which the
amount thereof was withdrawn from the Class G Primary Cash Collateral Account to
pay interest on the Class G Certificates) to but excluding the date such
principal amount shall be paid in full (or, in the case of an Applied Provider
Advance, the date on which the Class G Primary 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
17
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) 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 Primary Liquidity Provider's receipt of the Notice of
Borrowing for such Advance. Thereafter, such Advance shall be a LIBOR Advance.
(c) Each LIBOR Advance shall bear interest during each Interest Period
at a rate per annum equal to the LIBOR Rate for such Interest Period plus the
Applicable Margin for such LIBOR Advance, payable in arrears on the last day of
such Interest Period and, in the event of the payment of principal of such LIBOR
Advance on a day other than such last day, on the date of such payment (to the
extent of interest accrued on the amount of principal repaid).
(d) Each Base Rate Advance shall bear interest at a rate per annum equal
to the Base Rate plus the Applicable Margin for such Base Rate Advance, payable
in arrears on each Regular Distribution Date and, in the event of the payment of
principal of such Base Rate Advance on a day other than a Regular Distribution
Date, on the date of such payment (to the extent of interest accrued on the
amount of principal repaid).
(e) [Reserved.]
(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 4.5% per annum until paid, 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(f) 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(f) below the maximum rate
permitted
18
by law until the 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(f) had at
all relevant times been in effect.
(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 ("Notice of Replacement Subordination Agent") delivered to
the Primary Liquidity Provider by the then Borrower, the successor Borrower
designated therein shall become the Borrower for all purposes hereunder.
Section 3.09 Funding Loss Indemnification. The Borrower shall pay to the
Primary Liquidity Provider, upon the request of the Primary Liquidity Provider,
such amount or amounts as shall be sufficient (in the reasonable opinion of the
Primary 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 Primary 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 Primary 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 Primary 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 Primary Liquidity Provider
to maintain or fund its LIBOR Advances, then upon notice to the Borrower and
American by the Primary Liquidity Provider, the outstanding principal amount of
the LIBOR Advances shall be converted to Base Rate Advances (a) immediately upon
demand of the Primary Liquidity Provider, if such change or compliance with such
request, in the reasonable judgment of the Primary 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 Primary
Liquidity Provider will notify the Borrower and American as promptly as
practicable of any
19
event that will lead to the conversion of LIBOR Advances to Base Rate Advances
under this Section 3.10. The Primary Liquidity Provider agrees to investigate
all commercially reasonable alternatives 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
Primary Liquidity Provider to take any action that would, in its reasonable
judgment, cause the Primary Liquidity Provider to incur any material loss or
cost, unless the Borrower or American agrees to reimburse the Primary Liquidity
Provider therefor. If no such designation or other action is effected, or, if
effected, fails to avoid the need for conversion of the LIBOR Advances to Base
Rate Advances, American may arrange for a Replacement Liquidity Facility in
accordance with Section 3.06(e) of the Intercreditor Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied (or waived by the appropriate party or parties):
(a) The Primary 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 Primary 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 Primary Liquidity Provider);
(iii) Fully executed copies of each of the Operative Agreements
executed and delivered on or before the Closing Date (other than this
Agreement and the Intercreditor Agreement);
(iv) A fully executed copy of the Fee Letter;
(v) A copy of the Prospectus Supplement and specimen copies of the
Class G Certificates; and
(vi) An executed copy of each document, instrument, certificate and
opinion delivered on or before the Closing Date pursuant to the Class G
Trust Agreement, the Intercreditor Agreement and the other Operative
Agreements (in the case of each such opinion, either addressed to the
Primary Liquidity Provider or accompanied by a letter from
20
the counsel rendering such opinion to the effect that the Primary
Liquidity Provider is entitled to rely on such opinion as of its date as
if it were addressed to the Primary Liquidity Provider).
(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 that constitutes a Liquidity Event of Default.
(c) The Primary 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
Primary 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 Primary Liquidity Facilities shall
have been satisfied or waived, and all conditions precedent to the purchase of
the Certificates by the Underwriters under the Underwriting Agreement shall have
been satisfied (unless any of such conditions precedent under the Underwriting
Agreement shall have been waived by the Underwriters).
(e) The Borrower and American shall have received a certificate, dated
the Effective Date signed by a duly authorized representative of the Primary
Liquidity Provider, certifying that all conditions precedent specified in this
Section 4.01 have been satisfied or waived by the Primary Liquidity Provider.
Section 4.02 Conditions Precedent to Borrowing. The obligation of the
Primary 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 Primary Liquidity Provider shall have any Maximum
Commitment hereunder or the Borrower shall have any obligation to pay any amount
to the Primary Liquidity Provider hereunder, the Borrower will, unless the
Primary 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
21
respects the conditions, covenants and requirements applicable to it contained
in this Agreement and the Intercreditor Agreement.
(b) Reporting Requirements. Furnish to the Primary Liquidity Provider
with reasonable promptness, such other information and data with respect to the
transactions contemplated by the Operative Agreements as from time to time may
be reasonably requested by the Primary Liquidity Provider; and permit the
Primary 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 the transactions contemplated by this
Agreement and the related Operative Agreements.
(c) Certain Operative Agreements. Furnish to the Primary 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
Primary 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 Primary Liquidity
Provider shall have any Maximum Commitment hereunder or the Borrower shall have
any obligation to pay any amount to the Primary 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 Primary Liquidity Provider,
which consent shall not be unreasonably withheld or delayed.
Section 5.03 Covenants Regarding Certain Notices. Promptly following any
time that (x) the Class G Certificates have been paid in full (or provision has
been made for such payment in accordance with the Intercreditor Agreement and
the Class G Trust Agreement) (y) each of the Indentures has been terminated with
respect to all of the Equipment Notes issued thereunder as contemplated by
clause (i) of Section 10.01(a) of such Indenture or (z) the Class G Certificates
are otherwise no longer entitled to the benefits of this Agreement, the Borrower
shall deliver to the Primary Liquidity Provider the certificate referred to in
clause (ii) of the definition of Termination Date. Promptly following any time
that a Replacement Primary Liquidity Facility has been substituted for this
Agreement pursuant to Section 3.06(e) of the Intercreditor Agreement, the
Borrower shall deliver to the Primary Liquidity Provider the certificate
referred to in clause (iii) of the definition of Termination Date.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01 Liquidity Events of Default. If (a) any Liquidity Event of
Default has occurred and is continuing and (b) there is a Performing Note
Deficiency, the Primary Liquidity Provider may, in its discretion, deliver to
the Borrower a Termination Notice, the effect of which
22
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 Primary
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 Primary 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
Primary Liquidity Provider and any other Person whose consent is required
pursuant to this Agreement; provided that no such change or other action shall
affect the payment obligations of American without its prior written consent;
and any waiver of the terms hereof shall be effective only in the specific
instance and for the specific purpose given.
Section 7.02 Notices. Unless otherwise expressly specified or permitted by
the terms hereof, all notices required or permitted under the terms and
provisions of this Agreement shall be in English and in writing, and any such
notice may be given by United States mail, courier service or facsimile or any
other customary means of communication, and any such notice shall be effective
when delivered (or, if mailed, three Business Days after deposit, postage
prepaid, in the first class United States mail and, if delivered by facsimile,
upon completion of transmission and confirmation by the sender (by a telephone
call to a representative of the recipient or by machine confirmation) that the
transmission was received),
If to the Borrower, to:
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
225 Asylum, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Division
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
23
If to the Primary Liquidity Provider, to:
WESTLB AG, NEW YORK BRANCH
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Transportation Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Borrower or the Primary 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 Primary
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 Primary Liquidity Provider
such additional assignments, agreements, powers and instruments as the Primary
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 Primary Liquidity Provider its rights, powers and
remedies hereunder and under the other Operative Agreements.
Section 7.05 Indemnification; Survival of Certain Provisions. The Primary
Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Section 4.02 of the Participation Agreements. In addition,
the Borrower agrees to indemnify, protect, defend and hold harmless each
Liquidity Indemnitee from and against all Expenses of any kind or nature
whatsoever (other than any Expenses of the nature described in Sections 3.01 or
7.07 or in the Fee Letter (regardless of whether indemnified against pursuant to
said Sections or in such Fee Letter)), that may be imposed on or incurred by
such Liquidity Indemnitee, in any way relating to, resulting from, or arising
out of or in connection with, any action, suit or proceeding by any third party
against such Liquidity Indemnitee and relating to this Agreement, the Fee
Letter, the Intercreditor Agreement or any Participation Agreement; provided,
however, that the Borrower shall not be required to indemnify, protect, defend
and hold harmless any Liquidity Indemnitee in respect of any Expense of such
Liquidity Indemnitee to the extent such Expense is (i) attributable to the gross
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
24
excluded from the indemnification provisions contained in Section 4.02 of the
Participation Agreements. The provisions of Sections 3.01, 3.03, 3.09, 7.05 and
7.07 hereof and the indemnities contained in Section 4.02 of the Participation
Agreements shall survive the termination of this Agreement.
Section 7.06 Liability of the Primary Liquidity Provider.
(a) Neither the Primary 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 Primary 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 Primary Liquidity Provider, and the Primary 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 Primary Liquidity Provider's
willful misconduct or negligence in determining whether documents presented
hereunder comply with the terms hereof or (B) any breach by the Primary
Liquidity Provider of any of the terms of this Agreement or the Intercreditor
Agreement, including, but not limited to, the Primary 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 Primary 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
Primary 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
Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz, special counsel for the Primary Liquidity
Provider, in connection with the preparation, negotiation, execution, delivery,
filing and recording of the Operative Agreements, any waiver or consent
thereunder or any amendment thereof and (b) if a Liquidity Event of Default
occurs, all out-of-pocket expenses incurred by the Primary Liquidity Provider,
including reasonable fees and disbursements of counsel, in connection with such
Liquidity Event of Default and any collection, bankruptcy, insolvency and other
enforcement proceedings in connection therewith. In addition, the Borrower shall
pay any and all recording, stamp and other similar taxes and fees payable or
determined to be payable in the United States in connection with the execution,
delivery, filing and recording of this Agreement, any other Operative Agreement
and such other documents, and agrees
25
to save the Primary 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 Primary Liquidity Provider and their respective successors and
permitted assigns, except that neither the Primary 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
Primary Liquidity Provider's right to grant Participations pursuant to Section
7.08(b).
(b) The Primary Liquidity Provider agrees that it will not grant any
participation (including, without limitation, a "risk participation") (any such
participation, a "Participation") in or to all or a portion of its rights and
obligations hereunder or under the other Operative Agreements, unless all of the
following conditions are satisfied: (i) such Participation is to a Permitted
Transferee, (ii) such Participation is made in accordance with all applicable
laws, including, without limitation, the Securities Act of 1933, as amended, the
Trust Indenture Act of 1939, as amended, and any other applicable laws relating
to the transfer of similar interests and (iii) such Participation shall not be
made under circumstances that require registration under the Securities Act of
1933, as amended, or qualification of any indenture under the Trust Indenture
Act of 1939, as amended. Notwithstanding any such Participation, the Primary
Liquidity Provider agrees that (1) the Primary 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 Primary Liquidity Provider shall remain solely
responsible to the other parties to the Operative Agreements for the performance
of such obligations, (3) the Primary 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 Primary Liquidity Provider in
connection with the Advances and the Primary Liquidity Provider's rights and
obligations under the Operative Agreements, (4) the Primary 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 Primary 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 Primary Liquidity Provider.
The Primary Liquidity Provider may, in connection with any Participation or
proposed Participation pursuant to this Section 7.08(b), disclose to the
participant or proposed participant any information relating to the Operative
Agreements or to the parties thereto furnished to the Primary Liquidity Provider
thereunder or in connection therewith and permitted to be disclosed by the
Primary 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).
26
(c) Notwithstanding the other provisions of this Section 7.08, the
Primary 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 Primary 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 Primary 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 LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.11 Submission to Jurisdiction; Waiver of Jury Trial; Waiver of
Immunity.
(a) Each of the parties hereto, to the extent it may do so under
applicable law, for purposes hereof hereby (i) irrevocably submits itself to the
non-exclusive jurisdiction of the courts of the State of New York sitting in the
City of New York and to the non-exclusive jurisdiction of the United States
District Court for the Southern District of New York, for the purposes of any
suit, action or other proceeding arising out of this Agreement, the subject
matter hereof or any of the transactions contemplated hereby brought by any
party or parties hereto or thereto, or their successors or permitted assigns and
(ii) waives, and agrees not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper or that this Agreement or the subject matter
hereof or any of the transactions contemplated hereby may not be enforced in or
by such courts.
(b) THE BORROWER AND THE PRIMARY 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
27
claims. The Borrower and the Primary 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 Primary 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 Primary Liquidity Provider's Obligation to Make Advances.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE PRIMARY
LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO
DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL
BE ABSOLUTE, UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN
EACH CASE STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
28
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 G Trust, as Borrower
By: /s/ Alison ▇.▇. ▇▇▇▇▇▇
------------------------------------------
Name: Alison ▇.▇. ▇▇▇▇▇▇
Title: Vice President
WESTLB AG, acting through its New York Branch,
as Primary Liquidity Provider
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
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 WestLB AG, acting through its New York Branch
(the "Primary Liquidity Provider"), with reference to the Revolving Credit
Agreement (2002-1G), dated as of September 24, 2002, between the Borrower and
the Primary 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 Primary Liquidity Provider to be used for the
payment of the interest on the Class G Certificates which is payable on
____________, ____ (the"Distribution Date") in accordance with the terms and
provisions of the Class G Trust Agreement and the Class G Certificates, which
Advance is requested to be made on ____________, ____. The Interest Advance
should be remitted to [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 G Certificates on the Distribution Date,
(ii) does not include any amount with respect to the payment of principal of,
Break Amount (if any) or premium on, the Class G Certificates, the Class C
Certificates or the Class D Certificates, or interest on the Class C
Certificates or the Class D Certificates, (iii) was computed in accordance with
the provisions of the Class G Certificates, the Class G Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I), (iv) does not exceed the Maximum Available Commitment on the date
hereof 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 WestLB AG, acting
through its New York Branch (the "Primary Liquidity Provider"), with reference
to the Revolving Credit Agreement (2002-1G), dated as of September 24, 2002,
between the Borrower and the Primary 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 Primary Liquidity Provider to be used for
the funding of the Class G Primary 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 G Primary
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, Break Amount (if any) or premium on, the Class G
Certificates, or principal of, or interest or premium on, the Class C
Certificates or the Class D Certificates, (iii) was computed in accordance with
the provisions of the Class G Certificates, the Class G Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I) and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount requested
hereby, (a) the Borrower will deposit such amount in the Class G Primary 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 Primary Liquidity Provider to make further Advances under the Liquidity
Agreement and (B) following the making by the Primary 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 1 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 WestLB AG, acting
through its New York Branch (the "Primary Liquidity Provider"), with reference
to the Revolving Credit Agreement (2002-1G), dated as of September 24, 2002,
between the Borrower and the Primary 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 Primary Liquidity Provider to be used for the
funding of the Class G-1 Cash Collateral Account in accordance with Section
3.06(c) of the Intercreditor Agreement by reason of the downgrading of the
short-term unsecured debt rating or long-term unsecured debt rating of the
Primary 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 G Primary
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, Break Amount (if any) or premium on, the Class G
Certificates, or principal of, or interest or premium on, the Class C
Certificates or the Class D Certificates, (iii) was computed in accordance with
the provisions of the Class G Certificates, the Class G Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I) and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount requested
hereby, (a) the Borrower will deposit such amount in the Class G Primary 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
Primary Liquidity Provider to make further Advances under the Liquidity
Agreement and (B) following the making by the Primary 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 WestLB AG, acting through its New York
Branch (the "Primary Liquidity Provider"), with reference to the Revolving
Credit Agreement (2002-1G), dated as of September 24, 2002, between the Borrower
and the Primary 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 Primary Liquidity Provider to be used for the
funding of the Class G Primary 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 Primary 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 G Primary
Cash Collateral Account in accordance with Sections 3.06(f) and 3.06(i) of the
Intercreditor Agreement, (ii) does not include any amount with respect to the
payment of principal of, or premium on, the Class G Certificates, or principal
of, Break Amount (if any) or interest or premium on, the Class C Certificates or
the Class D Certificates, (iii) was computed in accordance with the provisions
of the Class G Certificates, the Class G Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule I) and
(iv) has not been and is not the subject of a prior or contemporaneous Notice of
Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount requested
hereby, (a) the Borrower will deposit such amount in the Class G Primary 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
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
Primary Liquidity Provider to make further Advances under the Liquidity
Agreement and (B) following the making by the Primary 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:_____________________________
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 September 24, 2002, 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 2002-1G, as Borrower, and
WestLB AG, acting through its New York Branch (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 2.02(d) thereof and Section 3.06(i) of
the Intercreditor Agreement (as defined in the Liquidity Agreement) as a
consequence of your receipt of this notice.
V-1
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,
[ ]
By:_________________________________
Name:_______________________________
Title:______________________________
cc: State Street Bank and Trust Company of Connecticut,
National Association, as Class G Trustee
V-2
ANNEX VI to
REVOLVING CREDIT AGREEMENT
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Re: Revolving Credit Agreement, dated as of September 24, 2002,
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 2002-1G,
as Borrower, and WestLB AG, acting through its New York Branch
(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.
VI-1
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-2