EXHIBIT 4.5
EXECUTION COPY
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REVOLVING CREDIT AGREEMENT
Dated as of February 5, 2004
between
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
under the Indenture,
as Borrower
and
CITIBANK, N.A.,
as Liquidity Provider
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RELATING TO
AMERICAN AIRLINES, INC.
7.25% CLASS A SECURED NOTES DUE 2009
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Table of Contents
Page
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ARTICLE I DEFINITIONS................................................................. 1
Section 1.01. Definitions................................................................. 1
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENT.......................................... 9
Section 2.01. The Advances................................................................ 9
Section 2.02. Making the Advances......................................................... 9
Section 2.03. Fees........................................................................ 11
Section 2.04. Reductions or Termination of the Maximum Commitment......................... 11
Section 2.05. Repayments of Interest Advances or the Final Advance........................ 12
Section 2.06. Repayments of Provider Advances............................................. 12
Section 2.07. Payments to the Liquidity Provider Under the Indenture...................... 13
Section 2.08. Book Entries................................................................ 14
Section 2.09. Payments from Available Funds Only.......................................... 14
Section 2.10. Extension of the Expiry Date; Non-Extension Advance......................... 14
ARTICLE III OBLIGATIONS OF THE BORROWER................................................. 15
Section 3.01. Increased Costs............................................................. 15
Section 3.02. Capital Adequacy............................................................ 16
Section 3.03. Payments Free of Deductions................................................. 17
Section 3.04. Payments.................................................................... 18
Section 3.05. Computations................................................................ 18
Section 3.06. Payment on Non-Business Days................................................ 19
Section 3.07. Interest.................................................................... 19
Section 3.08. Replacement of Borrower..................................................... 20
Section 3.09. Funding Loss Indemnification................................................ 20
Section 3.10. Illegality.................................................................. 21
Section 3.11. Mitigation.................................................................. 21
ARTICLE IV CONDITIONS PRECEDENT........................................................ 21
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01....................... 21
Section 4.02. Conditions Precedent to Borrowing........................................... 23
ARTICLE V COVENANTS................................................................... 23
Section 5.01. Affirmative Covenants of the Borrower....................................... 23
Section 5.02. Negative Covenants of the Borrower.......................................... 24
Section 5.03. Covenants Regarding Certain Notices......................................... 24
ARTICLE VI LIQUIDITY EVENTS OF DEFAULT................................................. 24
Section 6.01. Liquidity Events of Default................................................. 24
ARTICLE VII MISCELLANEOUS............................................................... 25
Section 7.01. No Oral Modifications or Continuing Waivers................................. 25
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Table of Contents
(continued)
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Section 7.02. Notices, etc................................................................ 25
Section 7.03. No Waiver; Remedies......................................................... 26
Section 7.04. Further Assurances.......................................................... 26
Section 7.05. Indemnification; Survival of Certain Provisions............................. 27
Section 7.06. Liability of the Liquidity Provider......................................... 27
Section 7.07. Costs, Expenses and Taxes................................................... 28
Section 7.08. Binding Effect; Participations.............................................. 29
Section 7.09. Severability................................................................ 30
Section 7.10. GOVERNING LAW............................................................... 30
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity........ 30
Section 7.12. Execution in Counterparts................................................... 31
Section 7.13. Entirety.................................................................... 31
Section 7.14. Headings.................................................................... 31
Section 7.15. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES............................ 31
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 Trustee
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REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT dated as of February 5, 2004, is made by
and between U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity but solely as Trustee (such term and
other capitalized terms used herein without definition being defined as provided
in Article I) under the Indenture (in such capacity, together with its
successors in such capacity, the "Borrower"), and CITIBANK, N.A., a national
banking association (the "Liquidity Provider").
WITNESSETH:
WHEREAS, pursuant to the Indenture, American is issuing the Class A Notes;
and
WHEREAS, the Borrower, in order to support the timely payment of a portion
of the interest on the Class A Notes in accordance with their terms, for and on
behalf of the Noteholders, has requested the Liquidity Provider to enter into
this Agreement, providing in part for the Borrower to request in specified
circumstances that Advances be made hereunder;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.
(a) The definitions stated herein apply equally to both the singular and
the plural forms of the terms defined.
(b) All references in this Agreement to designated "Articles",
"Sections", "Annexes" and other subdivisions are to the designated Article,
Section, Annex or other subdivision of this Agreement, unless otherwise
specifically stated.
(c) The words "herein", "hereof", and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Annex, or other subdivision.
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(d) Unless the context otherwise requires, whenever the words
"including", "include" or "includes" are used herein, it shall be deemed to be
followed by the phrase "without limitation".
(e) For the purposes of this Agreement, unless the context otherwise
requires, the following capitalized terms shall have the following meanings:
"Additional Costs" has the meaning specified in Section 3.01.
"Advance" means an Interest Advance, a Final Advance, a Provider Advance
or an Applied Provider Advance, as the case may be.
"Agreement" means this Agreement, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms.
"American" means American Airlines, Inc., a Delaware corporation, and its
successors and permitted assigns.
"Applicable Liquidity Rate" has the meaning specified in Section 3.07(f).
"Applicable Margin" means (i) with respect to any Unpaid Advance or
Applied Provider Advance, 2.50% per annum, and (ii) with respect to any
Unapplied Provider Advance, the rate per annum specified in the Fee Letter
applicable to this Agreement.
"Applied Downgrade Advance" has the meaning specified in Section 2.06(a).
"Applied Non-Extension Advance" has the meaning specified in Section
2.06(a).
"Applied Provider Advance" has the meaning specified in Section 2.06(a).
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for each
day of the period for which the Base Rate is to be determined (or, if such day
is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or if such rate is not so published for any day that
is a Business Day, the average of the quotations for such day for such
transactions received by the Liquidity Provider from three Federal funds brokers
of recognized standing selected by it plus one-quarter of one percent (0.25%)
per annum.
"Base Rate Advance" means an Advance that bears interest at a rate based
upon the Base Rate.
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"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 A Note is outstanding, the city
and state in which the Trustee or the Borrower maintains its Corporate Trust
Office or receives or disburses funds, and, if the applicable Business Day
relates to any Advance or other amount bearing interest based on the LIBOR Rate,
on which dealings are carried on in the London interbank market.
"Cash Collateral Account" means the Liquidity Facility Cash Collateral
Account.
"Downgrade Advance" means an Advance made pursuant to Section 2.02(c).
"Effective Date" has the meaning specified in Section 4.01. The delivery
of the certificate of the Liquidity Provider contemplated by Section 4.01(e)
shall be conclusive evidence that the Effective Date has occurred.
"Excluded Taxes" means (i) Taxes imposed on, based on or measured by the
income of, or franchise Taxes imposed on, the Liquidity Provider or its Lending
Office by the jurisdiction where such Liquidity Provider's principal office or
such Lending Office is located or any other taxing jurisdiction in which such
Tax is imposed as a result of the Liquidity Provider being, or having been,
organized in, or conducting, or having conducted, any activities unrelated to
the transactions contemplated by the Operative Agreements in, such jurisdiction,
(ii) any Taxes resulting from any change (other than a change pursuant to
Section 3.11 hereof) in the Lending Office without the prior written consent of
American and (iii) withholding taxes, whether or not indemnified under Section
3.03.
"Excluded Withholding Taxes" means (i) in the case of the original
Liquidity Provider, any withholding Tax imposed by the United States pursuant to
applicable law in effect on the date hereof, (ii) in the case of any successor
Liquidity Provider, any withholding Tax imposed by the United States except (a)
if such Liquidity Provider is, on the date it acquires its interest herein, a
"resident" of an Applicable Treaty jurisdiction entitled to claim the benefits
of an Applicable Treaty in respect of amounts payable hereunder, any such
withholding Tax to the extent imposed as a result of a change in applicable law
after the date such Liquidity Provider acquired its interest herein and (b) in
the case of any successor Liquidity Provider, to the extent the amount of such
withholding Tax imposed on such successor Liquidity Provider pursuant to
applicable
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law in effect on the date it acquires its interest herein does not exceed the
amount of such withholding Tax that, in the absence of the transfer to such
Liquidity Provider, would have been a Non-Excluded Tax imposed on payments to
the predecessor Liquidity Provider pursuant to applicable law in effect on such
date, (iii) any Tax imposed or increased as a result of the Liquidity Provider
failing to deliver to the Borrower any certificate or document (which
certificate or document in the good faith judgment of the Liquidity Provider it
is legally entitled to provide) which is reasonably requested by the Borrower to
establish that payments under this Agreement are exempt from (or entitled to a
reduced rate of) withholding Tax, (iv) any Tax imposed by a jurisdiction as a
result of the Liquidity Provider being, or having been, organized in, or
maintaining, or having maintained, its principal office or Lending Office in, or
conducting, or having conducted, any activities unrelated to the transactions
contemplated by the Operative Agreements in, such jurisdiction, and (v) any Tax
resulting from any change (other than a change pursuant to Section 3.11 hereof)
in the Lending Office without the prior written consent of American. For
purposes of this definition, "Applicable Treaty" means an income tax treaty
between the United States and any of Australia, Austria, Canada, France,
Germany, Ireland, Japan, Luxembourg, The Netherlands, Sweden, Switzerland or the
United Kingdom.
"Expenses" means liabilities, obligations, damages, settlements,
penalties, claims, actions, suits, costs, expenses, and disbursements
(including, without limitation, reasonable fees and disbursements of legal
counsel and costs of investigation), provided that Expenses shall not include
any Taxes, other than sales, use and V.A.T. taxes imposed on fees and expenses
payable pursuant to Section 7.07.
"Expiry Date" means February 2, 2005, 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).
"Indenture" means the Indenture dated as of the date hereof among
American, the Liquidity Provider and the Trustee, 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 date such Advance was made (such date, for the avoidance of
doubt, being the first date such Advance was made as a "Base Rate Advance"
pursuant to
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Section 3.07(b) or (B) the date of the withdrawal of funds from the Cash
Collateral Account for the purpose of paying interest on the Class A Notes
as contemplated by Section 2.06(a) hereof and, in either case, ending on
the next Interest Payment Date (or, if such Interest Payment 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 Interest
Payment Date (or, if such Interest Payment 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 (1)
the third Business Day following the date such Final Advance is made (in
the case of clause (x) above) or (2) the Interest Payment Date following
such conversion (in the case of clause (y) above), each such one-month
period to be subject to the "following business day" methodology set forth
in clauses (i) and (ii) above.
"Lending Office" means the lending office of the Liquidity Provider
presently located at New York, New York, or such other lending office as the
Liquidity Provider from time to time shall notify the Borrower as its Lending
Office hereunder; provided that the Liquidity Provider shall not change its
Lending Office to another lending office outside the United States of America
except in accordance with Section 3.11 hereof.
"LIBOR Advance" means an Advance bearing interest at a rate based upon the
LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period,
(i) 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 dollar deposits with a maturity
comparable to such Interest Period, or
(ii) if the rate calculated pursuant to clause (i) above is not
available, the average (rounded upwards, if necessary, to the next 1/100
of 1%) of the rates per annum at which deposits in dollars are offered for
the relevant Interest Period by three banks of recognized standing
selected by the Liquidity Provider in the London interbank market at
approximately 11:00 a.m. (London time) on the day that is two Business
Days prior to the first day of such Interest Period in an
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amount approximately equal to the principal amount of the LIBOR Advance to
which such Interest Period is to apply and for a period comparable to such
Interest Period.
"Liquidity Event of Default" means the occurrence of either (a) the
Acceleration of all of the Notes or (b) an American Bankruptcy Event.
"Liquidity Indemnitee" means (i) the Liquidity Provider, (ii) the
directors, officers, employees and agents of the Liquidity Provider, and (iii)
the successors and permitted assigns of the persons described in clauses (i) and
(ii).
"Liquidity Provider" has the meaning specified in the introductory
paragraph to this Agreement.
"Maximum Available Commitment" means, subject to the proviso contained in
the third sentence of Section 2.02(a), at any time of determination, (a) the
Maximum Commitment at such time less (b) the aggregate amount of each Interest
Advance outstanding at such time; provided that following a Provider Advance or
a Final Advance, the Maximum Available Commitment shall be zero.
"Maximum Commitment" means (a) initially $27,970,835 as the same may be
reduced from time to time in accordance with Section 2.04(a) and, (b) at all
times after the date after which there can be no increase in the interest rate
of Class A Notes pursuant to the terms of the Registration Rights Agreement (the
"Step-Up Termination Date"), means $26,166,265, as the same may be reduced from
time to time in accordance with Section 2.04(a), provided, however, that clause
(b) shall not apply during any period in which the interest rate of the Class A
Notes has increased pursuant to the terms of the Registration Rights Agreement.
"Non-Excluded Tax" has the meaning specified in Section 3.03.
"Non-Extension Advance" means an Advance made pursuant to Section 2.02(b).
"Notice of Borrowing" has the meaning specified in Section 2.02(e).
"Notice of Replacement Trustee" has the meaning specified in Section 3.08.
"Offering Memorandum" means the Offering Memorandum dated February 5, 2004
relating to the Class A Notes, as such Offering Memorandum may be amended or
supplemented.
"Participation" has the meaning specified in Section 7.08(b).
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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.
"Provider Advance" means a Downgrade Advance or a Non-Extension Advance.
"Regulatory Change" has the meaning specified in Section 3.01.
"Replenishment Amount" has the meaning specified in Section 2.06(b).
"Required Amount" means, for any day, the sum of the aggregate amount of
interest, calculated at the rate per annum equal to the Stated Interest Rate for
the Class A Notes, computed on the basis of a 360-day year comprised of twelve
30-day months, that would be payable on the Class A Notes on each of the four
successive semiannual Interest Payment Dates immediately following such day or,
if such day is an Interest Payment Date, on such day and the succeeding three
semiannual Interest Payment Dates,
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in each case calculated on the basis of the principal amount of the Class A
Notes on such day and without regard to expected future payments of principal on
the Class A 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 Liquidity
Provider a certificate, signed by a Responsible Officer of the Borrower,
certifying that (x) all of the Class A Notes have been paid in full (or
provision has been made for such payment in accordance with the Indenture) or
cancelled, (y) the Indenture has been terminated with respect to all of the
Class A Notes issued thereunder as contemplated by Section 9.1 of the Indenture
or (z) the Class A Notes are otherwise no longer entitled to the benefits of
this Agreement; (iii) the date on which the Borrower delivers to the Liquidity
Provider a certificate, signed by a Responsible Officer of the Borrower,
certifying that a Replacement Liquidity Facility has been substituted for this
Agreement in full pursuant to Section 3.6(e) of the Indenture; (iv) the fifth
Business Day following the receipt by the Borrower of a Termination Notice from
the Liquidity Provider pursuant to Section 6.01 hereof; (v) the date on which no
Advance is, or may (including by reason of reinstatement as herein provided)
become, available for a Borrowing hereunder; and (vi) the date on which 100% of
the principal amount of the Class A Notes are owned by American Entities.
"Termination Notice" means the Notice of Termination substantially in the
form of Annex V to this Agreement.
"Unapplied Provider Advance" means any Provider Advance other than an
Applied Provider Advance.
"Unpaid Advance" has the meaning specified in Section 2.05.
(f) Terms Defined in the Indenture. For the purposes of this Agreement,
the following terms shall have the respective meanings specified in the
Indenture:
"Acceleration," "American Bankruptcy Event," "American Entity," "Class A
Notes," "Class B Notes," "Class C Notes," "Closing Date," "Controlling Party,"
"Corporate Trust Office," "Distribution Date," "Dollars," "Downgraded Facility,"
"Fee Letter," "Final Legal Maturity Date," "Initial Purchasers," "Interest
Payment Date," "Investment Earnings," "Liquidity Facility Cash Collateral
Account," "Liquidity Obligations," "Non-Extended Facility," "Non-Performing,"
"Noteholders," "Operative Documents," "Payment," "Person," "Purchase Agreement,"
"Rating Agencies," "Ratings Confirmation," "Registration Rights Agreement,"
"Replacement Liquidity Facility," "Responsible Officer," "Spare Parts
Collateral," "Stated Interest Rate," "Taxes," "Threshold Rating," "Trustee,"
"United States," and "Written Notice."
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ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances. The Liquidity Provider hereby irrevocably
agrees, on the terms and conditions hereinafter set forth, to make Advances to
the Borrower from time to time on any Business Day during the period from the
Effective Date until 12:00 noon (New York City time) on the Expiry Date (unless
the obligations of the Liquidity Provider shall be earlier terminated in
accordance with the terms of Section 2.04(b)) in an aggregate amount at any time
outstanding not to exceed the Maximum Commitment.
Section 2.02. Making the Advances.
(a) Each Interest Advance shall be made by the Liquidity Provider upon
delivery to the Liquidity Provider of a written and completed Notice of
Borrowing in substantially the form of Annex I attached hereto, signed by a
Responsible Officer of the Borrower, such Interest Advance to be in an amount
not exceeding the Maximum Available Commitment at such time and shall be used
solely for the payment when due of interest with respect to the Class A Notes at
the Stated Interest Rate therefor in accordance with Section 3.6(a) and 3.6(b)
of the Indenture. Each Interest Advance made hereunder shall automatically
reduce the Maximum Available Commitment and the amount available to be borrowed
hereunder by subsequent Advances by the amount of such Interest Advance (subject
to reinstatement as provided in the next sentence). Subject to the provisions of
Section 3.6(g) of the Indenture, upon repayment to the Liquidity Provider of all
or any part of the amount of any Interest Advance made pursuant to this Section
2.02(a), together with accrued interest thereon (as provided herein), the
Maximum Available Commitment shall be reinstated by an amount equal to the
amount of such Interest Advance so repaid, but not to exceed the Maximum
Commitment; provided, however, that the Maximum Available Commitment shall not
be so reinstated at any time if (x) both the Class A Notes are Non-Performing
and a Liquidity Event of Default shall have occurred and be continuing or (y) a
Final Advance has been made.
(b) A Non-Extension Advance shall be made by the Liquidity Provider in a
single Borrowing if this Agreement is not extended in accordance with Section
3.6(d) of the Indenture (unless a Replacement Liquidity Facility to replace this
Agreement shall have been delivered to the Borrower as contemplated by such
Section 3.6(d) within the time period specified in such Section 3.6(d)) upon
delivery to the Liquidity Provider of a written and completed Notice of
Borrowing in substantially the form of Annex II attached hereto, signed by a
Responsible Officer of the Borrower, in an amount equal to the Maximum Available
Commitment at such time, and shall be used to fund the Cash Collateral Account
in accordance with such Section 3.6(d) and Section 3.6(f) of the Indenture.
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(c) If this Liquidity Facility becomes a Downgraded Facility, a
Downgrade Advance shall be made in a single Borrowing as provided for in Section
3.6(c) of the Indenture (unless a Replacement Liquidity Facility to replace this
Agreement shall have been previously delivered to the Borrower in accordance
with Section 3.6(c) of the Indenture within the time period specified in such
Section 3.6(c)), upon delivery to the Liquidity Provider of a written and
completed Notice of Borrowing in substantially the form of Annex III attached
hereto, signed by a Responsible Officer of the Borrower, in an amount equal to
the Maximum Available Commitment at such time, and shall be used to fund the
Cash Collateral Account in accordance with Sections 3.6(c) and 3.6(f) of the
Indenture.
(d) A Final Advance shall be made by the Liquidity Provider in a single
Borrowing, upon the receipt by the Borrower of a Termination Notice from the
Liquidity Provider pursuant to Section 6.01 hereof, by delivery to the Liquidity
Provider of a written and completed Notice of Borrowing in substantially the
form of Annex IV attached hereto, signed by a Responsible Officer of the
Borrower, in an amount equal to the Maximum Available Commitment at such time,
and shall be used to fund the Cash Collateral Account in accordance with
Sections 3.6(f) and 3.6(i) of the Indenture.
(e) Each Borrowing shall be made by a notice in writing (a "Notice of
Borrowing") in substantially the form required by Section 2.02(a), 2.02(b),
2.02(c) or 2.02(d), as the case may be, given by the Borrower to the Liquidity
Provider. Each Notice of Borrowing shall be effective upon delivery of a copy
thereof to the Liquidity Provider's office at the address specified in Section
7.02. If a Notice of Borrowing is delivered by the Borrower in respect of any
Borrowing no later than 1:00 p.m. (New York City time) on a Business Day, upon
satisfaction of the conditions precedent set forth in Section 4.02 with respect
to a requested Borrowing, the Liquidity Provider shall make available to the
Borrower, in accordance with its payment instructions, the amount of such
Borrowing in Dollars and immediately available funds, before 4:00 p.m. (New York
City time) on such Business Day or before 1:00 p.m. (New York City time) on such
later Business Day specified in such Notice of Borrowing. If a Notice of
Borrowing is delivered by the Borrower in respect of any Borrowing on a day that
is not a Business Day or after 1:00 p.m. (New York City time) on a Business Day,
upon satisfaction of the conditions precedent set forth in Section 4.02 with
respect to a requested Borrowing, the Liquidity Provider shall make available to
the Borrower, in accordance with its payment instructions, the amount of such
Borrowing in Dollars and in immediately available funds, before 1:00 p.m. (New
York City time) on the first Business Day next following the day of receipt of
such Notice of Borrowing or on such later Business Day specified by the Borrower
in such Notice of Borrowing. Payments of proceeds of a Borrowing shall be made
by wire transfer of immediately available funds to the Borrower in accordance
with such wire transfer instructions as the Borrower shall furnish from time to
time to the Liquidity Provider for such purpose. Each Notice of Borrowing shall
be irrevocable and binding on the Borrower.
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(f) Upon the making of any Advance requested pursuant to a Notice of
Borrowing, in accordance with the Borrower's payment instructions, the Liquidity
Provider shall be fully discharged of its obligation hereunder with respect to
such Notice of Borrowing, and the Liquidity Provider shall not thereafter be
obligated to make any further Advances hereunder in respect of such Notice of
Borrowing to the Borrower or to any other Person (including the Trustee or any
Class A Noteholder). If the Liquidity Provider makes an Advance requested
pursuant to a Notice of Borrowing before 1:00 p.m. (New York City time) on the
second Business Day after the date of payment specified in Section 2.02(e), the
Liquidity Provider shall have fully discharged its obligations hereunder with
respect to such Advance and an event of default shall not have occurred
hereunder. Following the making of any Advance pursuant to Section 2.02(b),
2.02(c) or 2.02(d) hereof to fund the Cash Collateral Account, the Liquidity
Provider shall have no interest in or rights to the Cash Collateral Account, the
funds constituting such Advance or any other amounts from time to time on
deposit in the Cash Collateral Account; provided that the foregoing shall not
affect or impair the obligations of the Trustee to make the distributions
contemplated by Section 3.6(e) or 3.6(f) of the Indenture; and provided,
further, that the foregoing shall not affect or impair the rights of the
Liquidity Provider to provide written instructions with respect to the
investment and reinvestment of amounts in the Cash Collateral Account to the
extent provided in Section 8.13(b) of the Indenture. By paying to the Borrower
proceeds of Advances requested by the Borrower in accordance with the provisions
of this Agreement, the Liquidity Provider makes no representation as to, and
assumes no responsibility for, the correctness or sufficiency for any purpose of
the amount of the Advances so made and requested.
Section 2.03. Fees. Subject to Sections 2.07 and 2.09 hereof, the Borrower
agrees to pay to the Liquidity Provider the fees set forth in the Fee Letter.
Section 2.04. Reductions or Termination of the Maximum Commitment.
(a) Automatic Reduction. Promptly following each date on which the
Required Amount is reduced as a result of a payment of the principal amount of
the Class A Notes or otherwise, the Maximum Commitment shall automatically be
reduced to an amount equal to such reduced Required Amount (as calculated by the
Borrower); provided that, at any time prior to the Step-Up Termination Date, the
Required Amount shall be calculated for purposes of this Section 2.04(a)
assuming the application of the additional margin of 0.50% for the corresponding
Class A Notes under the definition of Class A Debt Rate (whether or not such
additional margin shall otherwise apply). The Borrower shall give notice of any
such automatic reduction of the Maximum Commitment to the Liquidity Provider and
American within two Business Days thereof. The failure by the Borrower to
furnish any such notice shall not affect any such automatic reduction of the
Maximum Commitment.
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11
(b) Termination. Upon the making of any Provider Advance or Final
Advance hereunder or the occurrence of the Termination Date, the obligation of
the Liquidity Provider to make further Advances hereunder shall automatically
and irrevocably terminate, and the Borrower shall not be entitled to request any
further Borrowing hereunder and, in the case of a Final Advance or the
occurrence of a Termination Date pursuant to clause (ii), (iii), (iv) or (vi) of
the definition thereof, all amounts outstanding hereunder shall become due and
payable to the Liquidity Provider.
Section 2.05. Repayments of Interest Advances or the Final Advance.
Subject to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby agrees,
without notice of an Advance or demand for repayment from the Liquidity Provider
(which notice and demand are hereby waived by the Borrower), to pay, or to cause
to be paid, to the Liquidity Provider on each date on which the Liquidity
Provider shall make an Interest Advance or the Final Advance, an amount equal to
(a) the amount of such Advance (any such Advance, until repaid, is referred to
herein as an "Unpaid Advance"), plus (b) interest on the amount of each such
Unpaid Advance in the amounts and on the dates determined as provided in Section
3.07 hereof; provided that if (i) the Liquidity Provider shall make a Provider
Advance at any time after making one or more Interest Advances which shall not
have been repaid in accordance with this Section 2.05 or (ii) this Agreement
shall become a Downgraded Facility or Non-Extended Facility at any time when
unreimbursed Interest Advances have reduced the Maximum Available Commitment to
zero, then such Interest Advances shall cease to constitute Unpaid Advances and
shall be deemed to have been changed into an Applied Downgrade Advance or an
Applied Non-Extension Advance, as the case may be, for all purposes of this
Agreement (including, without limitation, for the purpose of determining when
such Interest Advance is required to be repaid to the Liquidity Provider in
accordance with Section 2.06 and for the purposes of Section 2.06(b)). The
Borrower and the Liquidity Provider agree that the repayment in full of each
Interest Advance and Final Advance on the date such Advance is made is intended
to be a contemporaneous exchange for new value given to the Borrower by the
Liquidity Provider.
Section 2.06. Repayments of Provider Advances.
(a) Amounts advanced hereunder in respect of a Provider Advance shall be
deposited in the Cash Collateral Account and invested and withdrawn from the
Cash Collateral Account as set forth in Sections 3.6(c), 3.6(d), 3.6(e) and
3.6(f) of the Indenture. Subject to Sections 2.07 and 2.09 hereof, the Borrower
agrees to pay to the Liquidity Provider, on each Interest Payment Date,
commencing on the first Interest Payment Date after the making of a Provider
Advance, interest on the principal amount of any such Provider Advance in the
amounts determined as provided in Section 3.07 hereof; provided, however, that
amounts in respect of a Provider Advance withdrawn from the Cash Collateral
Account for the purpose of paying interest with respect to the Class A Notes in
accordance with Section 3.6(f) of the Indenture (the amount of any such
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12
withdrawal being (y) in the case of a Downgrade Advance, an "Applied Downgrade
Advance" and (z) in the case of a Non-Extension Advance, an "Applied
Non-Extension Advance" and, together with an Applied Downgrade Advance, an
"Applied Provider Advance") shall thereafter (subject to Section 2.06(b)) be
treated as an Interest Advance under this Agreement for all purposes hereunder,
including for purposes of determining the Applicable Liquidity Rate for interest
payable thereon and the dates on which such interest is payable; provided
further, however, that if, following the making of a Provider Advance, the
Liquidity Provider delivers a Termination Notice to the Borrower pursuant to
Section 6.01 hereof, such Provider Advance shall thereafter be treated as a
Final Advance under this Agreement for purposes of determining the Applicable
Liquidity Rate for interest payable thereon and the dates on which such interest
is payable. Subject to Sections 2.07 and 2.09 hereof, immediately upon the
withdrawal of any amounts from the Cash Collateral Account on account of a
reduction in the Required Amount, the Borrower shall repay, to the extent of
such withdrawal, to the Liquidity Provider a portion of the Provider Advances in
a principal amount equal to such reduction, plus interest on the principal
amount prepaid as provided in Section 3.07 hereof.
(b) At any time when an Applied Provider Advance (or any portion
thereof) is outstanding, upon the deposit in the Cash Collateral Account of any
amount pursuant to clause "fourth" of Section 3.2 of the Indenture (any such
amount being a "Replenishment Amount") for the purpose of replenishing or
increasing the balance thereof up to the Required Amount at such time, (i) the
aggregate outstanding principal amount of all Applied Provider Advances (and of
Provider Advances treated as an Interest Advance for purposes of determining the
Applicable Liquidity Rate for interest payable thereon) shall be automatically
reduced by the amount of such Replenishment Amount and (ii) the aggregate
outstanding principal amount of all Unapplied Provider Advances shall be
automatically increased by the amount of such Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity Facility in
replacement of this Agreement in accordance with Section 3.6(e) of the
Indenture, subject to Sections 2.07 and 2.09 hereof, the Borrower shall pay all
Liquidity Obligations then owing to the Liquidity Provider, which payment shall
be made first from amounts remaining on deposit in the Cash Collateral Account
after giving effect to any Applied Provider Advance on the date of such
replacement, and thereafter from any available source, including, without
limitation, a drawing under the Replacement Liquidity Facility.
Section 2.07. Payments to the Liquidity Provider Under the Indenture. In
order to provide for payment or repayment to the Liquidity Provider of any
amounts hereunder, the Indenture provides that amounts available and referred to
in Article III of the Indenture, to the extent payable to the Liquidity Provider
pursuant to the terms of the Indenture (including, without limitation, Section
3.6(f) of the Indenture), shall be paid to the Liquidity Provider in accordance
with the terms thereof. Amounts so paid to the
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13
Liquidity Provider shall be applied by the Liquidity Provider to Liquidity
Obligations then due and payable in accordance with the Indenture, and shall
discharge in full the corresponding obligations of the Borrower hereunder.
Section 2.08. Book Entries. The Liquidity Provider shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower resulting from Advances made from time to time and
the amounts of principal and interest payable hereunder and paid from time to
time in respect thereof; provided, however, that the failure by the Liquidity
Provider to maintain such account or accounts shall not affect the obligations
of the Borrower in respect of Advances.
Section 2.09. Payments from Available Funds Only. The Borrower is acting
for and on behalf of the Class A Noteholders hereunder. Notwithstanding anything
to the contrary set forth herein, all payments to be made by the Borrower under
this Agreement (including, without limitation, under Articles II and III and
Sections 7.05 and 7.07 hereof) shall be made only from the amounts that
constitute Payments within the meaning of clause (i) or clause (iii) of the
definition of "Payment" or any other amounts available for distribution under
the Indenture, including payments by American under Section 3.10 and Article VI
of the Indenture, 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 Indenture. The Liquidity Provider agrees that it
will look solely to such amounts in respect of payments to be made by the
Borrower hereunder to the extent available for distribution to it as provided in
the Indenture 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 or the
Indenture. Amounts on deposit in the Cash Collateral Account shall be available
to the Borrower to make payments under this Agreement only to the extent and for
the purposes expressly contemplated in Section 3.6(f) of the Indenture.
Section 2.10. Extension of the Expiry Date; Non-Extension Advance. If the
then effective Expiry Date is prior to the date that is 15 days after the Final
Legal Maturity Date, then, no earlier than the 60th day and no later than the
40th day prior to the then effective Expiry Date, the Borrower shall request in
writing that the Liquidity Provider extend the Expiry Date to the earlier of (i)
the date that is 15 days after the Final Legal Maturity Date and (ii) the date
that is the day immediately preceding the 364th day occurring after the last day
of the Consent Period (as hereinafter defined). Whether or not the Liquidity
Provider has received such a request from the Borrower, the Liquidity Provider
may by notice (the "Consent Notice") to the Borrower during the period
commencing on the date that is 60 days prior to the then effective Expiry Date
and ending on the date that is 25 days prior to such Expiry Date (such period,
the "Consent Period") advise the Borrower whether, in its sole discretion, it
agrees to so extend the Expiry Date;
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14
provided, however, that such extension shall not be effective with respect to
the Liquidity Provider if, by notice (the "Withdrawal Notice") to the Borrower
prior to the end of the Consent Period, the Liquidity Provider revokes its
Consent Notice. If the Liquidity Provider advises the Borrower in the Consent
Notice that such Expiry Date shall not be so extended or gives a Withdrawal
Notice to the Borrower prior to the end of the Consent Period, or fails to
irrevocably and unconditionally advise the Borrower on or before the end of the
Consent Period that such Expiry Date shall be so extended (and, in each case, if
the Liquidity Provider shall not have been replaced in accordance with Section
3.6(e) of the Indenture), such Expiry Date shall not be extended and the
Borrower shall be entitled on the date on which the Consent Period ends (or as
soon as possible thereafter but prior to the then-effective Expiry Date) to
request a Non-Extension Advance in accordance with Section 2.02(b) hereof and
Section 3.6(d) of the Indenture.
Subject to the proviso in the next succeeding sentence, the Liquidity
Provider shall have the right at any time in its sole discretion and without the
consent of the Borrower to extend the then effective Expiry Date to a date that
is on or before the date that is 15 days after the Final Legal Maturity Date for
the Class A Notes by giving not less than five nor more than ten days' prior
written notice of such extension to the Borrower, the Trustee and American
(which notice shall specify the effective date of such extension (the "Extension
Effective Date")). On the Extension Effective Date, the then effective Expiry
Date shall be so extended without any further act; provided, however, that the
Liquidity Provider shall meet the Threshold Rating on the Extension Effective
Date.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs. Subject to Sections 2.07 and 2.09 hereof,
the Borrower shall pay to the Liquidity Provider from time to time such amounts
as may be necessary to compensate the Liquidity Provider for any increased costs
incurred by the Liquidity Provider which are attributable to its making or
maintaining any LIBOR Advances hereunder or its obligation to make any such
Advances hereunder, or any reduction in any amount receivable by the Liquidity
Provider under this Agreement or the Indenture in respect of any such Advances
or such obligation (such increases in costs and reductions in amounts receivable
being herein called "Additional Costs"), resulting from any change after the
date of this Agreement in U.S. federal, state, municipal, or foreign laws or
regulations (including Regulation D of the Board of Governors of the Federal
Reserve System), or the adoption or making after the date of this Agreement of
any interpretations, directives, or requirements applying to a class of banks
including the Liquidity Provider under any U.S. federal, state, municipal, or
any foreign laws or
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15
regulations (whether or not having the force of law) by any court, central bank
or monetary authority charged with the interpretation or administration thereof
(a "Regulatory Change"), which: (1) changes the basis of taxation of any amounts
payable to the Liquidity Provider under this Agreement in respect of any such
Advances (other than with respect to Excluded Taxes); or (2) imposes or modifies
any reserve, special deposit, compulsory loan or similar requirements relating
to any extensions of credit or other assets of, or any deposits with other
liabilities of, the Liquidity Provider (including any such Advances or any
deposits referred to in the definition of LIBOR Rate or related definitions);
provided, that the Borrower shall only be obligated to pay amounts with respect
to any Additional Costs accruing from the date 120 days prior to the date of
delivery of the notice specified in the next paragraph.
The Liquidity Provider will notify the Borrower of any event occurring
after the date of this Agreement that will entitle the Liquidity Provider to
compensation pursuant to this Section 3.01 as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation, which
notice shall describe in reasonable detail the calculation of the amounts owed
under this Section. Determinations by the Liquidity Provider for purposes of
this Section 3.01 of the effect of any Regulatory Change on its costs of making
or maintaining Advances or on amounts receivable by it in respect of Advances,
and of the additional amounts required to compensate the Liquidity Provider in
respect of any Additional Costs, shall be prima facie evidence of the amount
owed under this Section.
Section 3.02. Capital Adequacy. If (1) the adoption, after the date
hereof, of any applicable governmental law, rule or regulation regarding capital
adequacy, (2) any change, after the date hereof, in the interpretation or
administration of any such law, rule or regulation by any central bank or other
governmental authority charged with the interpretation or administration thereof
or (3) compliance by the Liquidity Provider or any corporation controlling the
Liquidity Provider with any applicable guideline or request of general
applicability, issued after the date hereof, by any central bank or other
governmental authority (whether or not having the force of law) that constitutes
a change of the nature described in clause (2), has the effect of requiring an
increase in the amount of capital required to be maintained by the Liquidity
Provider or any corporation controlling the Liquidity Provider, and such
increase is based upon the Liquidity Provider's obligations hereunder and other
similar obligations, subject to Sections 2.07 and 2.09 hereof, the Borrower
shall pay to the Liquidity Provider from time to time such additional amount or
amounts as are necessary to compensate the Liquidity Provider for such portion
of such increase as shall be reasonably allocable to the Liquidity Provider's
obligations to the Borrower hereunder; provided, that the Borrower shall only be
obligated to pay amounts with respect to any such costs accruing from the date
120 days prior to the date of delivery of the notice specified in the next
paragraph.
Revolving Credit Agreement
16
The Liquidity Provider will notify the Borrower of any event occurring
after the date of this Agreement that will entitle the Liquidity Provider to
compensation pursuant to this Section 3.02 as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation, which
notice shall describe in reasonable detail the calculation of the amounts owed
under this Section. Determinations by the Liquidity Provider for purposes of
this Section 3.02 of the effect of any increase in the amount of capital
required to be maintained by the Liquidity Provider and of the amount allocable
to the Liquidity Provider's obligations to the Borrower hereunder shall be prima
facie evidence of the amounts owed under this Section.
Section 3.03. Payments Free of Deductions.
(a) All payments made by the Borrower under this Agreement shall be made
without reduction or withholding for or on account of any present or future
Taxes of any nature whatsoever now or hereafter imposed, levied, collected,
withheld or assessed, other than Excluded Withholding Taxes (such non-excluded
Taxes being referred to herein, collectively, as "Non-Excluded Taxes" and,
individually, as a "Non-Excluded Tax"). If any Taxes are required to be withheld
from any amounts payable to the Liquidity Provider under this Agreement, (i) the
Borrower shall within the time prescribed therefor by applicable law pay to the
appropriate governmental or taxing authority the full amount of any such Taxes
(including any additional Tax required to be deducted or withheld in respect of
the additional amounts payable under clause (ii) hereof) and make such reports
or returns in connection therewith at the time or times and in the manner
prescribed by applicable law, and (ii) in the case of Non-Excluded Taxes, the
amounts so payable to the Liquidity Provider shall be increased to the extent
necessary to yield to the Liquidity Provider (after deduction or withholding for
or on account of all Non-Excluded Taxes) interest or any other such amounts
payable under this Agreement at the rates or in the amounts specified in this
Agreement. If the Liquidity Provider is not organized under the laws of the
United States or any State thereof, to the extent it is eligible to do so, the
Liquidity Provider agrees to provide to the Borrower, prior to the first date
any amount is payable to it hereunder, two executed original copies of Internal
Revenue Service Form W-8BEN or W-8ECI, as appropriate, or any successor or other
form prescribed by the Internal Revenue Service, certifying that the Liquidity
Provider is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement. In addition, the
Liquidity Provider will provide, from time to time upon the reasonable request
of the Borrower, such additional forms or documentation as may be necessary to
establish an available exemption from (or an entitlement to a reduced rate of)
withholding Tax on payments hereunder. Within 30 days after the date of each
payment hereunder, the Borrower shall furnish to the Liquidity Provider the
original or certified copy of (or other documentary evidence of) the payment of
the Non-Excluded Taxes applicable to such payment.
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17
(b) All Advances made by the Liquidity Provider under this Agreement
shall be made free and clear of, and without reduction for or on account of, any
Taxes that are imposed by a jurisdiction in which the Liquidity Provider is
organized, has its Lending Office or maintains its principal place of business.
If any such Taxes are required to be withheld or deducted from any Advances, the
Liquidity Provider shall (i) within the time prescribed therefor by applicable
law pay to the appropriate governmental or taxing authority the full amount of
any such Taxes (and any additional Taxes in respect of the additional amounts
payable under clause (ii) hereof) and make such reports or returns in connection
therewith at the time or times and in the manner prescribed by applicable law,
and (ii) pay to the Borrower an additional amount which (after deduction of all
such Taxes) shall be sufficient to yield to the Borrower the full amount that
would have been received by it had no such withholding or deduction been
required. Within 30 days after the date of each payment hereunder, the Liquidity
Provider shall furnish to the Borrower the original or a certified copy of (or
other documentary evidence of) the payment of the Taxes applicable to such
payment.
(c) If any exemption from, or reduction in the rate of, any Taxes
required to be deducted or withheld from amounts payable by the Liquidity
Provider hereunder is reasonably available to the Borrower to establish that
payments under this Agreement are exempt from (or entitled to a reduced rate of)
tax, the Borrower shall deliver to the Liquidity Provider such form or forms and
such other evidence of the eligibility of the Borrower for such exemption or
reduction as the Liquidity Provider may reasonably identify to the Borrower as
being required as a condition to exemption from, or reduction in the rate of,
any such Taxes. The Borrower shall, for federal income tax purposes and for all
purposes hereunder, treat such payments as Interest Advances, and, as such, will
treat such payments as loans made by the Liquidity Provider to the Borrower,
unless otherwise required by law.
Section 3.04. Payments. The Borrower shall make or cause to be made each
payment to the Liquidity Provider under this Agreement so as to cause the same
to be received by the Liquidity Provider not later than 1:00 p.m. (New York City
time) on the day when due. The Borrower shall make all such payments in Dollars,
to the Liquidity Provider in immediately available funds, by wire transfer to
the account of Citibank, N.A. at Citibank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, ABA #▇▇▇▇▇▇▇▇▇, Account #4063-2387, Reference: American Airlines 7.25%
Class A Secured Notes due 2009, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇; or to such other
account as the Liquidity Provider may from time to time direct the Borrower.
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.
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18
Section 3.06. Payment on Non-Business Days. Whenever any payment to be
made hereunder shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day and no additional
interest shall be due as a result (and if so made, shall be deemed to have been
made when due). If any payment in respect of interest on an Advance is so
deferred to the next succeeding Business Day, such deferral shall not delay the
commencement of the next Interest Period for such Advance (if such Advance is a
LIBOR Advance) or reduce the number of days for which interest will be payable
on such Advance on the next interest payment date for such Advance.
Section 3.07. Interest.
(a) Subject to Sections 2.07 and 2.09, the Borrower shall pay, or shall
cause to be paid, without duplication, interest on (i) the unpaid principal
amount of each Advance from and including the date of such Advance (or, in the
case of an Applied Provider Advance, from and including the date on which the
amount thereof was withdrawn from the Cash Collateral Account to pay interest on
the Class A Notes) to but excluding the date such principal amount shall be paid
in full (or, in the case of an Applied Provider Advance, the date on which the
Cash Collateral Account is fully replenished in respect of such Advance) and
(ii) any other amount due hereunder (to the extent permitted by applicable law,
whether fees, commissions, expenses or other amounts or installments of interest
on Advances or any such other amount) that is not paid when due (whether at
stated maturity, by acceleration or otherwise) from and including the due date
thereof to but excluding the date such amount is paid in full, in each such
case, at a fluctuating interest rate per annum for each day equal to the
Applicable Liquidity Rate (as defined below) for such Advance or such other
amount, as the case may be, as in effect for such day, but in no event at a rate
per annum greater than the maximum rate permitted by applicable law; provided,
however, that, if at any time the otherwise applicable interest rate as set
forth in this Section 3.07 shall exceed the maximum rate permitted by applicable
law, then, to the maximum extent permitted by applicable law, any subsequent
reduction in such interest rate will not reduce the rate of interest payable
pursuant to this Section 3.07 below the maximum rate permitted by applicable law
until the total amount of interest accrued equals the absolute amount of
interest that would have accrued (without additional interest thereon) if such
otherwise applicable interest rate as set forth in this Section 3.07 had at all
relevant times been in effect.
(b) Each Advance (including, without limitation, each outstanding
Unapplied Provider Advance) will be either a Base Rate Advance or a LIBOR
Advance as provided in this Section 3.07. Each such Advance will be a Base Rate
Advance for the period from the date such Advance is made to (but excluding) the
third Business Day following the date such Advance is made. Thereafter, such
Advance shall be a LIBOR Advance.
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19
(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 for the period for which
such Base Rate Advance is outstanding at a rate per annum equal to the Base Rate
plus the Applicable Margin for such Base Rate Advance, payable in arrears on the
last day of the Interest Period applicable to the LIBOR Advance into which such
Base Rate Advance is converted and, in the event of the payment of principal of
such Base Rate 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).
(e) To the extent permitted by applicable law, each amount not paid when
due hereunder (whether fees, commissions, expenses or other amounts,
installments of interest on Advances but excluding Advances) shall bear interest
at a rate per annum equal to the Base Rate plus 4.50% until paid.
(f) Each change in the Base Rate shall become effective immediately. The
rates of interest specified in this Section 3.07 with respect to any Advance or
other amount shall be referred to as the "Applicable Liquidity Rate".
Section 3.08. Replacement of Borrower. From time to time and subject to
the successor Borrower's meeting the eligibility requirements set forth in
Section 8.10 of the Indenture applicable to the Trustee, upon the effective date
and time specified in a written and completed Notice of Replacement Trustee in
substantially the form of Annex VI attached hereto (a "Notice of Replacement
Trustee") delivered to the Liquidity Provider by the then Borrower, the
successor Borrower designated therein shall become the Borrower for all purposes
hereunder.
Section 3.09. Funding Loss Indemnification. Subject to Sections 2.07 and
2.09 hereof, the Borrower shall pay to the Liquidity Provider, upon the request
of the Liquidity Provider, such amount or amounts as shall be sufficient (in the
reasonable opinion of the Liquidity Provider) to compensate it for any loss,
cost, or expense incurred by reason of the liquidation or redeployment of
deposits or other funds acquired by the Liquidity Provider to fund or maintain
any LIBOR Advance (but excluding loss of anticipated profits) incurred as a
result of:
(1) Any repayment of a LIBOR Advance on a date other than the last
day of the Interest Period for such Advance; or
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20
(2) Any failure by the Borrower to borrow a LIBOR Advance on the
date for borrowing specified in the relevant notice under Section 2.02.
Section 3.10. Illegality. Notwithstanding any other provision in this
Agreement, if any change in any law, rule or regulation applicable to or binding
on the Liquidity Provider, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by the
Liquidity Provider (or its Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for the Liquidity
Provider (or its Lending Office) to maintain or fund its LIBOR Advances, then
upon notice to the Borrower and American by the Liquidity Provider, the
outstanding principal amount of the LIBOR Advances shall be converted to Base
Rate Advances (a) immediately upon demand of the Liquidity Provider, if such
change or compliance with such request, in the reasonable judgment of the
Liquidity Provider, requires immediate conversion; or (b) at the expiration of
the last Interest Period to expire before the effective date of any such change
or request.
Section 3.11. Mitigation. If a condition arises or an event occurs which
would, or would upon the giving of notice, result in the payment of any
additional costs or amounts pursuant to Section 3.01, 3.02 or 3.03 or require
the conversion of any Advance pursuant to Section 3.10, the Liquidity Provider,
promptly upon becoming aware of the same, shall notify the Borrower and shall
take such steps as may be reasonable to it to mitigate the effects of such
condition or event, including the designation of a different Lending Office or
furnishing of the proper certificates under any applicable tax laws, tax
treaties and conventions to the extent that such certificates are legally
available to the Liquidity Provider; provided, that, the Liquidity Provider
shall be under no obligation to take any step that, in its good-faith opinion
would (i) result in its incurring any additional costs in performing its
obligations hereunder unless the Borrower has agreed to reimburse it therefor or
(ii) be otherwise disadvantageous to the Liquidity Provider in a significant
respect in the reasonable judgment of the Liquidity Provider.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied (or waived by the appropriate party or parties):
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(a) The Liquidity Provider shall have received on or before the Closing
Date each of the following, and in the case of each document delivered pursuant
to paragraphs (i), (ii), (iii) and (iv), each in form and substance satisfactory
to the Liquidity Provider:
(i) This Agreement duly executed on behalf of the Borrower;
(ii) The Indenture duly executed on behalf of each of the parties
thereto (other than the Liquidity Provider);
(iii) Fully executed copies of each of the Operative Agreements
executed and delivered on or before the Closing Date (other than this
Agreement and the Indenture);
(iv) A fully executed copy of the Fee Letter;
(v) A copy of the Offering Memorandum and specimen copies of the
Class A Notes;
(vi) An executed copy of each document, instrument, certificate and
opinion delivered on or before the Closing Date pursuant to the Indenture
and the other Operative Agreements (in the case of each such opinion,
either addressed to the Liquidity Provider or accompanied by a letter from
the counsel rendering such opinion to the effect that the Liquidity
Provider is entitled to rely on such opinion as of its date as if it were
addressed to the Liquidity Provider);
(vii) Evidence that there shall have been made and shall be in full
force and effect, all filings, recordings and/or registrations, and there
shall have been given or taken any notice or other similar action as may
be reasonably necessary or, to the extent reasonably requested by the
Liquidity Provider, reasonably advisable, in order to establish, perfect,
protect and preserve the right, title and interest, remedies, powers,
privileges, liens and security interests of, or for the benefit of, the
Trustee and the Liquidity Provider created by the Operative Agreements
executed and delivered on or prior to the Closing Date; and
(viii) Such other documents, instruments, opinions and approvals
pertaining to the transactions contemplated hereby or by the other
Operative Agreements as the Liquidity Provider shall have reasonably
requested.
(b) The following statement shall be true on and as of the Effective
Date: no event shall have occurred and be continuing, or would result from the
entering into of this Agreement or the making of any Advance that constitutes a
Liquidity Event of Default.
Revolving Credit Agreement
22
(c) The Liquidity Provider shall have received payment in full of all
fees and other sums required to be paid to or for the account of the Liquidity
Provider on or prior to the Effective Date pursuant to the Fee Letter applicable
to this Agreement.
(d) All conditions precedent to the issuance of the Class A Notes under
the Indenture shall have been satisfied or waived, and all conditions precedent
to the purchase of the Class A Notes by the Initial Purchasers under the
Purchase Agreement shall have been satisfied (unless any of such conditions
precedent under the Purchase Agreement shall have been waived by the Initial
Purchasers).
(e) The Borrower and American shall have received a certificate, dated
the Effective Date, signed by a duly authorized representative of the Liquidity
Provider, certifying that all conditions precedent specified in this Section
4.01 have been satisfied or waived by the Liquidity Provider.
Section 4.02. Conditions Precedent to Borrowing. The obligation of the
Liquidity Provider to make an Advance on the occasion of each Borrowing shall be
subject to the conditions precedent that the Effective Date shall have occurred
and, on or prior to the time of such Borrowing, the Borrower shall have
delivered a Notice of Borrowing which conforms to the terms and conditions of
this Agreement and has been completed as may be required by the relevant form of
the Notice of Borrowing for the type of Advance requested.
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower. So long as any
Advance shall remain unpaid or the Liquidity Provider shall have any Maximum
Commitment hereunder or the Borrower shall have any obligation to pay any amount
to the Liquidity Provider hereunder, the Borrower will, unless the Liquidity
Provider shall otherwise consent in writing:
(a) Performance of This and Other Agreements. Punctually pay or cause to
be paid all amounts payable by it under this Agreement and the other Operative
Documents and observe and perform in all material respects the conditions,
covenants and requirements applicable to it contained in this Agreement and the
other Operative Documents.
(b) Reporting Requirements. Furnish to the Liquidity Provider with
reasonable promptness, such other information and data with respect to the
transactions contemplated by the Operative Documents as from time to time may be
reasonably
Revolving Credit Agreement
23
requested by the Liquidity Provider; and permit the Liquidity Provider, upon
reasonable notice, to inspect the Borrower's books and records with respect to
such transactions and to meet with officers and employees of the Borrower to
discuss such transactions.
(c) Certain Operative Documents. Furnish to the Liquidity Provider with
reasonable promptness, such Operative Documents entered into after the date
hereof as from time to time may be reasonably requested by the Liquidity
Provider.
Section 5.02. Negative Covenants of the Borrower. Subject to the
provisions of Sections 8.8 and 8.9 of the Indenture, so long as any Advance
shall remain unpaid or the Liquidity Provider shall have any Maximum Commitment
hereunder or the Borrower shall have any obligation to pay any amount to the
Liquidity Provider hereunder, the Borrower will not appoint or permit or suffer
to be appointed any successor Borrower without the prior written consent of the
Liquidity Provider, which consent shall not be unreasonably withheld or delayed.
Section 5.03. Covenants Regarding Certain Notices. Promptly following any
time that (x) the Class A Notes have been paid in full (or provision has been
made for such payment in accordance with the Indenture), (y) the Indenture has
been terminated with respect to all of the Class A Notes issued thereunder as
contemplated by Section 9.1 of the Indenture, or (z) the Class A Notes are
otherwise no longer entitled to the benefits of this Agreement, the Borrower
shall deliver to the Liquidity Provider the certificate referred to in clause
(ii) of the definition of Termination Date. Promptly following any time that a
Replacement Liquidity Facility has been substituted for this Agreement pursuant
to Section 3.6(e) of the Indenture, the Borrower shall deliver to the Liquidity
Provider the certificate referred to in clause (iii) of the definition of
Termination Date.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default. If both (x) the Class A Notes
are Non-Performing and (y) any Liquidity Event of Default shall have occurred
and be continuing, the Liquidity Provider may, in its discretion, deliver to the
Borrower a Termination Notice, the effect of which shall be to cause (i) the
obligation of the Liquidity Provider to make Advances hereunder to expire at the
close of business on the fifth Business Day after the date on which such
Termination Notice is received by the Borrower, (ii) the Borrower to promptly
request, and the Liquidity Provider to promptly make, a Final Advance in
accordance with Section 2.02(d) hereof and Section 3.6(i) of the Indenture,
(iii) all other outstanding Advances to be automatically converted into Final
Advances for all purposes hereunder, including, without limitation, for purposes
of determining the
Revolving Credit Agreement
24
Applicable Liquidity Rate for interest payable thereon and (iv) subject to
Sections 2.07 and 2.09 hereof, all Advances (including, without limitation, any
Provider Advance and Applied Provider Advance), any accrued interest thereon and
any other amounts outstanding hereunder to become immediately due and payable to
the Liquidity Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.01. No Oral Modifications or Continuing Waivers. No terms or
provisions of this Agreement may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the Borrower and the
Liquidity Provider and any other Person whose consent is required pursuant to
this Agreement; provided that no such change or other action shall affect the
payment obligations of American without its prior written consent; and any
waiver of the terms hereof shall be effective only in the specific instance and
for the specific purpose given.
Section 7.02. Notices, etc. Unless otherwise expressly specified or
permitted by the terms hereof, all notices required or permitted under the terms
and provisions of this Agreement shall be in English and in writing, and any
such notice may be given by United States registered or certified mail, courier
service, or facsimile or any other customary means of communication, and any
such notice shall be effective when delivered (or, if mailed, three Business
Days after deposit, postage prepaid, in the first class United States mail and,
if delivered by facsimile, upon completion of transmission and confirmation by
the sender (by a telephone call to a representative of the recipient or by
machine confirmation) that the transmission was received):
Borrower: U.S. BANK TRUST NATIONAL ASSOCIATION
One Federal Street, 3rd Floor
EX-FED-MA
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Agreement
25
Liquidity Provider: CITIBANK, N.A.
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Reference: American Airlines 7.25% Class A Secured
Notes due 2009
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
CITIBANK, N.A. Global Aviation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy of any Notice of Borrowing to:
CITIBANK, N.A. Global Aviation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Borrower or the Liquidity Provider by notice to the other, may designate
additional or different addresses for subsequent notices or communications.
Section 7.03. No Waiver; Remedies. No failure on the part of the Liquidity
Provider to exercise, and no delay in exercising, any right under this Agreement
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right under this Agreement preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
Section 7.04. Further Assurances. The Borrower agrees to do such further
acts and things and to execute and deliver to the Liquidity Provider such
additional assignments, agreements, powers and instruments as the Liquidity
Provider may
Revolving Credit Agreement
26
reasonably require or deem advisable to carry into effect the purposes of this
Agreement and the other Operative Documents or to better assure and confirm unto
the Liquidity Provider its rights, powers and remedies hereunder and under the
other Operative Documents.
Section 7.05. Indemnification; Survival of Certain Provisions. The
Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Article VI of the Indenture. In addition, the Borrower
agrees to indemnify, protect, defend and hold harmless each Liquidity Indemnitee
from and against and shall pay on demand, all Expenses of any kind or nature
whatsoever (other than any Expenses of the nature described in Section 3.01,
3.02 or 7.07 hereof or in the Fee Letter (regardless of whether indemnified
against pursuant to said Sections or in such Fee Letter)), that may be imposed
on, incurred by or asserted against any Liquidity Indemnitee, in any way
relating to, resulting from, or arising out of or in connection with any action,
suit or proceeding by any third party against such Liquidity Indemnitee and
relating to this Agreement, the Fee Letter, the Indenture or any other Operative
Document; provided, however, that the Borrower shall not be required to
indemnify, protect, defend and hold harmless any Liquidity Indemnitee in respect
of any Expense of such Liquidity Indemnitee to the extent such Expense is (i)
attributable to the gross negligence or willful misconduct of such Liquidity
Indemnitee or any other Liquidity Indemnitee (as actually and finally determined
by a final, non-appealable judgment of a court of competent jurisdiction); (ii)
ordinary and usual operating overhead expense (excluding, without limitation,
costs and expenses of any outside counsel, consultant or agent); (iii)
attributable to the failure by the Liquidity Provider to perform or observe any
agreement, covenant or condition on its part to be performed or observed in this
Agreement, the Indenture or any other Operative Document to which it is a party,
or (iv) a Tax. The indemnities contained in Article VI of the Indenture and the
provisions of Sections 3.01, 3.02, 3.03, 3.09, 7.05 and 7.07 hereof shall
survive the termination of this Agreement.
Section 7.06. Liability of the Liquidity Provider.
(a) Neither the Liquidity Provider nor any of its officers, employees,
directors or Affiliates shall be liable or responsible for: (i) the use which
may be made of the Advances or any acts or omissions of the Borrower or any
beneficiary or transferee in connection therewith; (ii) the validity,
sufficiency or genuineness of documents relating to this Agreement or the
Indenture, or of any endorsement thereon, even if such documents should prove to
be in any or all respects invalid, insufficient, fraudulent or forged; or (iii)
the making of Advances by the Liquidity Provider against delivery of a Notice of
Borrowing and other documents which do not comply with the terms hereof;
provided, however, that the Borrower shall have a claim against the Liquidity
Provider, and the Liquidity Provider shall be liable to the Borrower, to the
extent of any damages suffered by the Borrower which were the result of (A) the
Liquidity Provider's willful misconduct or gross negligence in determining
whether documents presented hereunder
Revolving Credit Agreement
27
comply with the terms hereof, or (B) any breach by the Liquidity Provider of any
of the terms of this Agreement or the Indenture or any other Operative Document
to which it is a party in a material respect, including, but not limited to, the
Liquidity Provider's failure to make lawful payment hereunder after the delivery
to it by the Borrower of a Notice of Borrowing strictly complying with the terms
and conditions hereof, in the case of either clause (A) or (B), as actually and
finally determined by a final, non-appealable judgment of a court of competent
jurisdiction. In no event, however, shall the Liquidity Provider be liable on
any theory of liability for any special, indirect, consequential or punitive
damages (including, without limitation, any loss of profits, business or
anticipated savings).
(b) Neither the Liquidity Provider nor any of its officers, employees,
directors or Affiliates shall be liable or responsible in any respect for (i)
any error, omission, interruption or delay in transmission, dispatch or delivery
of any message or advice, however transmitted, in connection with this Agreement
or any Notice of Borrowing delivered hereunder, or (ii) any action, inaction or
omission which may be taken by it in good faith, absent willful misconduct or
gross negligence (in which event the extent of the Liquidity Provider's
potential liability to the Borrower shall be limited as set forth in the
immediately preceding paragraph), in connection with this Agreement or any
Notice of Borrowing.
Section 7.07. Costs, Expenses and Taxes. The Borrower agrees promptly to
pay, or cause to be paid (A) on the Effective Date and on such later date or
dates on which the Liquidity Provider shall make demand, all reasonable
out-of-pocket costs and expenses (including, without limitation, the reasonable
fees and expenses of outside counsel for the Liquidity Provider) of the
Liquidity Provider in connection with the preparation, negotiation, execution,
delivery, filing and recording of this Agreement, any other Operative Document
and any other documents which may be delivered in connection with this Agreement
and (B) on demand, all reasonable costs and expenses (including reasonable
counsel fees and expenses) of the Liquidity Provider in connection with (i) the
enforcement of this Agreement or any other Operative Document, (ii) any
Liquidity Event of Default or any collection, bankruptcy, insolvency and other
enforcement proceedings in connection therewith, (iii) the modification or
amendment of, or supplement to, this Agreement or any other Operative Document
or such other documents which may be delivered in connection herewith or
therewith (whether or not the same shall become effective) or any waiver or
consent thereunder (whether or not the same shall become effective) or (iv) any
action or proceeding relating to any order, injunction, or other process or
decree restraining or seeking to restrain the Liquidity Provider from paying any
amount under this Agreement, the Indenture or any other Operative Document or
otherwise affecting the application of funds in the Cash Collateral Account. In
addition, the Borrower shall pay any and all recording, stamp and other similar
taxes and fees payable or determined to be payable in the United States in
connection with the execution, delivery, filing and recording of this Agreement,
any other
Revolving Credit Agreement
28
Operative Agreement and such other documents, and agrees to hold the Liquidity
Provider harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes or fees.
Section 7.08. Binding Effect; Participations.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower and the Liquidity Provider and their respective successors and
permitted assigns, except that neither the Liquidity Provider (except as
otherwise provided in this Section 7.08) nor (except as contemplated by Section
3.08) the Borrower shall have the right to assign, pledge or otherwise transfer
its rights or obligations hereunder or any interest herein, subject to the
Liquidity Provider's right to grant Participations pursuant to Section 7.08(b).
(b) The Liquidity Provider agrees that it will not grant any
participation (including, without limitation, a "risk participation") (any such
participation, a "Participation") in or to all or a portion of its rights and
obligations hereunder or under the other Operative Agreements, unless all of the
following conditions are satisfied: (i) such Participation is to a Permitted
Transferee, (ii) such Participation is made in accordance with all applicable
laws, including, without limitation, the Securities Act of 1933, as amended, the
Trust Indenture Act of 1939, as amended, and any other applicable laws relating
to the transfer of similar interests and (iii) such Participation shall not be
made under circumstances that require registration under the Securities Act of
1933, as amended, or qualification of any indenture under the Trust Indenture
Act of 1939, as amended. Notwithstanding any such Participation, the Liquidity
Provider agrees that (1) the Liquidity Provider's obligations under the
Operative Agreements shall remain unchanged, and such participant shall have no
rights or benefits as against American or the Borrower or under any Operative
Agreement, (2) the Liquidity Provider shall remain solely responsible to the
other parties to the Operative Agreements for the performance of such
obligations, (3) the Liquidity Provider shall remain the maker of any Advances,
and the other parties to the Operative Agreements shall continue to deal solely
and directly with the Liquidity Provider in connection with the Advances and the
Liquidity Provider's rights and obligations under the Operative Agreements, (4)
the Liquidity Provider shall be solely responsible for any withholding Taxes or
any filing or reporting requirements relating to such Participation and shall
hold the Borrower and American and their respective successors, permitted
assigns, affiliates, agents and servants harmless against the same and (5)
neither American nor the Borrower shall be required to pay to the Liquidity
Provider any amount under Section 3.01, Section 3.02 or Section 3.03 greater
than it would have been required to pay had there not been any grant of a
Participation by the Liquidity Provider. The Liquidity Provider may, in
connection with any Participation or proposed Participation pursuant to this
Section 7.08(b), disclose to the participant or proposed participant any
information relating to the Operative Agreements or to the parties thereto
furnished to the Liquidity Provider thereunder or in connection therewith
Revolving Credit Agreement
29
and permitted to be disclosed by the Liquidity Provider; provided, however, that
prior to any such disclosure, the participant or proposed participant shall
agree in writing for the express benefit of the Borrower and American to
preserve the confidentiality of any confidential information included therein
(subject to customary exceptions).
(c) Notwithstanding the other provisions of this Section 7.08, the
Liquidity Provider may assign and pledge all or any portion of the Advances
owing to it to any Federal Reserve Bank or the United States Treasury as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank, provided that any payment in respect of such assigned Advances made by the
Borrower to the Liquidity Provider in accordance with the terms of this
Agreement shall satisfy the Borrower's obligations hereunder in respect of such
assigned Advance to the extent of such payment. No such assignment shall release
the Liquidity Provider from its obligations hereunder.
Section 7.09. Severability. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
Section 7.10. Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN THE
STATE OF NEW YORK AND THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of
Immunity.
(a) Each of the parties hereto, to the extent it may do so under
applicable law, for purposes hereof hereby (i) irrevocably submits itself to the
non-exclusive jurisdiction of the courts of the State of New York sitting in the
City of New York and to the non-exclusive jurisdiction of the United States
District Court for the Southern District of New York, for the purposes of any
suit, action or other proceeding arising out of this Agreement, the subject
matter hereof or any of the transactions contemplated hereby brought by any
party or parties hereto or thereto, or their successors or permitted assigns and
(ii) waives, and agrees not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper or that
Revolving Credit Agreement
30
this Agreement or the subject matter hereof or any of the transactions
contemplated hereby may not be enforced in or by such courts.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE TO WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO
THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING
ESTABLISHED, including, without limitation, contract claims, tort claims, breach
of duty claims and all other common law and statutory claims. The Borrower and
the Liquidity Provider each warrant and represent that it has reviewed this
waiver with its legal counsel, and that it knowingly and voluntarily waives its
jury trial rights following consultation with such legal counsel. THIS WAIVER IS
IRREVOCABLE, AND CANNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT.
Section 7.12. Execution in Counterparts. This Agreement may be executed in
any number of counterparts (and each party shall not be required to execute the
same counterpart). Each counterpart of this Agreement including a signature page
or pages executed by each of the parties hereto shall be an original counterpart
of this Agreement, but all of such counterparts together shall constitute one
instrument.
Section 7.13. Entirety. This Agreement, the Indenture and the other
Operative Agreements to which the Liquidity Provider is a party constitute the
entire agreement of the parties hereto with respect to the subject matter hereof
and supersede all prior understandings and agreements of such parties.
Section 7.14. Headings. The headings of the various Articles and Sections
herein and in the Table of Contents hereto are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
Section 7.15. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES. EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE LIQUIDITY PROVIDER
TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO DELIVER NOTICES OF
BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL BE ABSOLUTE,
UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE
STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
Revolving Credit Agreement
31
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first set forth above.
U.S. BANK TRUST NATIONAL
ASSOCIATION,
not in its individual capacity
but solely as Trustee,
as Borrower
By: /s/ Alison ▇. ▇. ▇▇▇▇▇▇
--------------------------------------
Name: Alison ▇. ▇. ▇▇▇▇▇▇
Title: Vice President
CITIBANK, N.A.,
as Liquidity Provider
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Revolving Credit Agreement
32
Annex I to
Revolving Credit Agreement
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower
(the "Borrower"), hereby certifies to Citibank, N.A. (the "Liquidity Provider"),
with reference to the Revolving Credit Agreement dated as of February 5, 2004,
between the Borrower and the Liquidity Provider (the "Liquidity Agreement"; the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The Borrower is the Trustee under the Indenture.
(2) The Borrower is delivering this Notice of Borrowing for the
making of an Interest Advance by the Liquidity Provider to be used for the
payment of the interest on the Class A Notes which is payable on
____________, ____ (the "Interest Payment Date") in accordance with the
terms and provisions of the Indenture and the Class A Notes, which Advance
is requested to be made on ____________, ____. The Interest Advance should
be remitted to [name of bank/wire instructions/ABA number] in favor of
account number [ __ ], reference [ __ ].
(3) The amount of the Interest Advance requested hereby (i) is
$_______________.__, to be applied in respect of the payment of the
interest which is due and payable on the Class A Notes on the Interest
Payment Date, (ii) does not include any amount with respect to the payment
of principal of, or premium on, the Class A Notes, the Class B Notes or
the Class C Notes, or interest on the Class B Notes or Class C Notes,
(iii) was computed in accordance with the provisions of the Class A Notes
and the Indenture (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 3.6(b) of the Indenture, (b) no portion of such
amount shall be applied by the Borrower for any other purpose and (c) no
portion of such amount until so applied shall be commingled with other
funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, the making of the Interest Advance as requested by this Notice of
Borrowing shall automatically reduce, subject to reinstatement in accordance
with the terms of the Liquidity Agreement, the Maximum Available Commitment by
an amount equal to the amount of the Interest Advance requested to be made
hereby as set forth in clause (i) of paragraph (3) of this Notice of Borrowing
and such reduction shall automatically result in
Revolving Credit Agreement
corresponding reductions in the amounts available to be borrowed pursuant to a
subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Trustee, as Borrower
By: _____________________________________
Name:
Title:
Revolving Credit Agreement
2
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest Advance
Notice of Borrowing]
Revolving Credit Agreement
Annex II to
Revolving Credit Agreement
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower
(the "Borrower"), hereby certifies to Citibank, N.A. (the "Liquidity Provider"),
with reference to the Revolving Credit Agreement dated as of February 5, 2004,
between the Borrower and the Liquidity Provider (the "Liquidity Agreement"; the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The Borrower is the Trustee under the Indenture.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Non-Extension Advance by the Liquidity Provider to be used
for the funding of the Cash Collateral Account in accordance with Section
3.6(d) of the Indenture, which Advance is requested to be made on
__________, ____. The Non-Extension Advance should be remitted to [name of
bank/wire instructions/ABA number] in favor of account number [ __ ],
reference [ __ ].
(3) The amount of the Non-Extension Advance requested hereby (i)
is $_______________.__, which equals the Maximum Available Commitment on
the date hereof and is to be applied in respect of the funding of the Cash
Collateral Account in accordance with Sections 3.6(d) and 3.6(f) of the
Indenture, (ii) does not include any amount with respect to the payment of
the principal of, or premium on, the Class A Notes, the Class B Notes or
the Class C Notes, or interest on the Class B Notes or the Class C Notes,
(iii) was computed in accordance with the provisions of the Class A Notes
and the Indenture (a copy of which computation is attached hereto as
Schedule I), and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Cash
Collateral Account and apply the same in accordance with the terms of
Sections 3.6(d) and 3.6(f) of the Indenture, (b) no portion of such amount
shall be applied by the Borrower for any other purpose and (c) no portion
of such amount until so applied shall be commingled with other funds held
by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Non-Extension Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the obligation
of the Liquidity Provider to make further Advances under the Liquidity
Agreement; and (B) following the making by the Liquidity Provider of the
Non-Extension Advance requested by this Notice of Borrowing, the Borrower shall
not be entitled to request any further Advances under the Liquidity Agreement.
Revolving Credit Agreement
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Trustee, as Borrower
By: _____________________________________
Name:
Title:
Revolving Credit Agreement
2
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Non-Extension Advance Notice of
Borrowing]
Revolving Credit Agreement
Annex III to
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower
(the "Borrower"), hereby certifies to Citibank, N.A. (the "Liquidity Provider"),
with reference to the Revolving Credit Agreement dated as of February 5, 2004,
between the Borrower and the Liquidity Provider (the "Liquidity Agreement"; the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The Borrower is the Trustee under the Indenture.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Downgrade Advance by the Liquidity Provider to be used for
the funding of the Cash Collateral Account in accordance with Section
3.6(c) of the Indenture by reason of the Liquidity Facility's becoming a
Downgraded Facility, which Downgrade Advance is requested to be made on
__________, ____. The Downgrade Advance should be remitted to [name of
bank/wire instructions/ABA number] in favor of account number [ __ ],
reference [ __ ].
(3) The amount of the Downgrade Advance requested hereby (i) is
$_______________.__, which equals the Maximum Available Commitment on the
date hereof and is to be applied in respect of the funding of the Cash
Collateral Account in accordance with Sections 3.6(c) and 3.6(f) of the
Indenture, (ii) does not include any amount with respect to the payment of
the principal of, or premium on, the Class A Notes, the Class B Notes or
the Class C Notes, or interest on the Class B Notes or the Class C Notes,
(iii) was computed in accordance with the provisions of the Class A Notes
and the Indenture (a copy of which computation is attached hereto as
Schedule I), and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Cash
Collateral Account and apply the same in accordance with the terms of
Sections 3.6(c) and 3.6(f) of the Indenture, (b) no portion of such amount
shall be applied by the Borrower for any other purpose and (c) no portion
of such amount until so applied shall be commingled with other funds held
by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Downgrade Advance as requested by this Notice
of Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement; and
(B) following the making by the Liquidity Provider of the Downgrade Advance
requested by this Notice of
Revolving Credit Agreement
Borrowing, the Borrower shall not be entitled to request any further Advances
under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Trustee, as Borrower
By: _____________________________________
Name:
Title:
Revolving Credit Agreement
2
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Downgrade Advance Notice of
Borrowing]
Revolving Credit Agreement
Annex IV to
Revolving Credit Agreement
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower
(the "Borrower"), hereby certifies to Citibank, N.A. (the "Liquidity Provider"),
with reference to the Revolving Credit Agreement dated as of February 5, 2004,
between the Borrower and the Liquidity Provider (the "Liquidity Agreement"; the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The Borrower is the Trustee under the Indenture.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Final Advance by the Liquidity Provider to be used for the
funding of the Cash Collateral Account in accordance with Section 3.6(i)
of the Indenture by reason of the receipt by the Borrower of a Termination
Notice from the Liquidity Provider with respect to the Liquidity
Agreement, which Advance is requested to be made on ____________, ____.
The Final Advance should be remitted to [name of bank/wire
instructions/ABA number] in favor of account number [ __ ], reference
[ __ ].
(3) The amount of the Final Advance requested hereby (i) is
$_________________.__, which equals the Maximum Available Commitment on
the date hereof and is to be applied in respect of the funding of the Cash
Collateral Account in accordance with Sections 3.6(f) and 3.6(i) of the
Indenture, (ii) does not include any amount with respect to the payment of
principal of, or premium on, the Class A Notes, the Class B Notes or the
Class C Notes, or interest on the Class B Notes or the Class C Notes,
(iii) was computed in accordance with the provisions of the Class A Notes
and the Indenture (a copy of which computation is attached hereto as
Schedule I), and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Cash
Collateral Account and apply the same in accordance with the terms of
Sections 3.6(f) and 3.6(i) of the Indenture, (b) no portion of such amount
shall be applied by the Borrower for any other purpose and (c) no portion
of such amount until so applied shall be commingled with other funds held
by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Final Advance as requested by this Notice of
Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement; and
(B) following the making by the Liquidity Provider of the Final Advance
requested by this Notice of Borrowing, the
Revolving Credit Agreement
Borrower shall not be entitled to request any further Advances under the
Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Trustee, as Borrower
By: _____________________________________
Name:
Title:
Revolving Credit Agreement
2
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Final Advance
Notice of Borrowing]
Revolving Credit Agreement
Annex V to
Revolving Credit Agreement
NOTICE OF TERMINATION
[Date]
U.S. Bank Trust National Association,
as Trustee, as Borrower
One Federal Street, 3rd Floor
EX-FED-MA
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Revolving Credit Agreement, dated as of February 5, 2004, between
U.S. Bank Trust National Association, as Trustee and as Borrower,
and Citibank, N.A., as Liquidity Provider (the "Liquidity
Agreement"; capitalized terms used herein and not otherwise defined
shall have the meanings attributed thereto in the Liquidity
Agreement)
Ladies and Gentlemen:
You are hereby notified that, pursuant to Section 6.01 of the Liquidity
Agreement, because both (x) the Class A Notes are Non-Performing and (y) a
Liquidity Event of Default has occurred and is continuing, we are giving this
notice to you in order to cause (i) our obligations to make Advances (as defined
therein) under such Liquidity Agreement to terminate at the close of business on
the fifth Business Day after the date on which you receive this notice and (ii)
you to request a Final Advance under the Liquidity Agreement pursuant to Section
2.02(d) thereof and Section 3.6(i) of the Indenture (as defined in the Liquidity
Agreement) as a consequence of your receipt of this notice.
Revolving Credit Agreement
THIS NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR UNDER THE
LIQUIDITY AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY
AGREEMENT WILL TERMINATE AT THE CLOSE OF BUSINESS ON THE FIFTH BUSINESS DAY
AFTER THE DATE ON WHICH YOU RECEIVE THIS NOTICE.
Very truly yours,
CITIBANK, N.A.,
as Liquidity Provider
By: _____________________________________
Name:
Title:
Revolving Credit Agreement
2
Annex VI to
Revolving Credit Agreement
NOTICE OF REPLACEMENT TRUSTEE
[Date]
Attention:
Revolving Credit Agreement, dated as of February 5, 2004, between U.S.
Bank Trust National Association, as Trustee and as Borrower, and Citibank,
N.A., as Liquidity Provider (the "Liquidity Agreement")
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
_______________________________
[Name of Transferee]
_______________________________
[Address of Transferee]
all rights and obligations of the undersigned as Borrower under the Liquidity
Agreement referred to above. The transferee has succeeded the undersigned as
Trustee under the Indenture referred to in the first paragraph of the Liquidity
Agreement, pursuant to the terms of Section 8.8 or 8.9 of the Indenture.
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.
Revolving Credit Agreement
This transfer shall be effective as of [specify time and date]
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Trustee, as Borrower
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
Revolving Credit Agreement
2