EXHIBIT 4(e)(1)
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PARTICIPATION AGREEMENT
(N961AN)
Dated as of July 8, 2003
among
AMERICAN AIRLINES, INC.,
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Pass Through Trustee under each of the
Pass Through Trust Agreements,
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Subordination Agent,
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Loan Trustee,
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
in its individual capacity as set forth herein
--------------
Aircraft of the make and model and
bearing the U.S. Registration Number and
Manufacturer's Serial Number listed on
Schedule I hereto
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01. Definitions........................................................................... 2
Section 1.02. Other Definitional Provisions......................................................... 2
ARTICLE II
THE LOANS
Section 2.01. The Loans............................................................................. 2
Section 2.02. Issuance of Equipment Notes........................................................... 3
Section 2.03. The Closing........................................................................... 3
ARTICLE III
CONDITIONS PRECEDENT
Section 3.01. Conditions Precedent to Obligations of the Pass Through Trustees...................... 3
Section 3.02. Conditions Precedent to Obligations of the Company.................................... 7
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND INDEMNITIES OF THE COMPANY
Section 4.01. Representations and Warranties of the Company......................................... 8
Section 4.02. General Indemnity..................................................................... 10
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS OF U.S. BANK
Section 5.01. Representations, Warranties and Covenants of U.S. Bank................................ 15
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ARTICLE VI
OTHER COVENANTS AND AGREEMENTS
Section 6.01. Other Agreements...................................................................... 18
Section 6.02. Certain Covenants of the Company...................................................... 20
ARTICLE VII
MISCELLANEOUS
Section 7.01. Notices............................................................................... 23
Section 7.02. Survival of Representations, Warranties, Indemnities, Covenants and Agreements........ 23
Section 7.03. Governing Law......................................................................... 23
Section 7.04. Severability.......................................................................... 23
Section 7.05. No Oral Modifications or Continuing Waivers; Consents................................. 24
Section 7.06. Effect of Headings and Table of Contents.............................................. 24
Section 7.07. Successors and Assigns................................................................ 24
Section 7.08. Benefits of Agreement................................................................. 24
Section 7.09. Counterparts.......................................................................... 25
Section 7.10. Submission to Jurisdiction............................................................ 25
Section 7.11. No Petition........................................................................... 25
Section 7.12. Section 1110.......................................................................... 25
Section 7.13. No Waiver............................................................................. 25
Section 7.14. Further Assurances.................................................................... 26
Schedule I - Certain Terms
Schedule II - Equipment Notes, Purchasers and Original Principal Amounts
Schedule III - Trust Supplements
Exhibit A - Form of Opinion of Counsel for the Company
Exhibit B - Form of Opinion of Special Counsel for the Loan Trustee, the Subordination Agent
and U.S. Bank
Exhibit C - Form of Opinion of Special FAA Counsel
Exhibit D - Form of Manufacturer's Consent
Exhibit E-1 - Form of Opinion of Special Counsel for the Pass Through Trustees
Exhibit E-2 - Form of Opinion of Special Delaware Counsel for the Pass Through Trustees
Annex A - Definitions
ii
PARTICIPATION AGREEMENT
(N961AN)
This PARTICIPATION AGREEMENT (N961AN), dated as of July 8, 2003, is
made by and among AMERICAN AIRLINES, INC., a Delaware corporation (together with
its successors and permitted assigns, the "Company"), U.S. BANK TRUST NATIONAL
ASSOCIATION, a national banking association (in its individual capacity,
together with its successors and permitted assigns, "U.S. Bank"), not in its
individual capacity except as otherwise expressly provided in any of the
Operative Documents or the Pass Through Documents, but solely as trustee (in
such capacity together with any successor or other trustee in such capacity, the
"Pass Through Trustee") under each of the Pass Through Trust Agreements (such
term and other capitalized terms used herein without definition being defined as
provided in Section 1.01), U.S. BANK TRUST NATIONAL ASSOCIATION, a national
banking association, as subordination agent and trustee (in such capacity,
together with any successor trustee in such capacity, the "Subordination Agent")
under the Intercreditor Agreement, and U.S. BANK TRUST NATIONAL ASSOCIATION, as
loan trustee (in such capacity, together with any successor trustee in such
capacity, the "Loan Trustee") under the Indenture.
W I T N E S S E T H:
WHEREAS, the Company is the owner of that certain aircraft of the make
and model set forth in Schedule I hereto as more particularly described in the
Indenture Supplement originally executed and delivered under the Indenture;
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company and the Loan Trustee are entering into the Indenture,
pursuant to which, among other things, the Company will issue separate series of
Equipment Notes, which Equipment Notes are to be secured by a security interest
in all right, title and interest of the Company in and to the Aircraft and
certain other property described in the Indenture;
WHEREAS, pursuant to the Basic Pass Through Trust Agreement and each of
the Trust Supplements set forth in Schedule III hereto, concurrently with the
execution and delivery of this Agreement, separate Pass Through Trusts are being
created to facilitate certain of the transactions contemplated hereby,
including, without limitation, the issuance and sale of Pass Through
Certificates;
WHEREAS, pursuant to the Intercreditor Agreement, the Subordination
Agent will hold the Equipment Notes on behalf of the Pass Through Trusts;
NOW, THEREFORE, in consideration of the foregoing premises and 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. For the purposes of this Agreement, unless
the context otherwise requires, capitalized terms used but not defined herein
shall have the respective meanings set forth or incorporated by reference in
Annex A.
Section 1.02. Other Definitional Provisions. (a) The definitions stated
herein and in Annex A apply equally to both the singular and the plural forms of
the terms defined.
(b) All references in this Agreement to designated "Articles",
"Sections", "Subsections", "Schedules", "Exhibits", "Annexes" and other
subdivisions are to the designated Article, Section, Subsection, Schedule,
Exhibit, 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, Subsection, Schedule, Exhibit, Annex or other subdivision.
(d) All references in this Agreement to a "government" are to such
government and any instrumentality or agency thereof.
(e) Unless the context otherwise requires, whenever the words
"including", "include" or "includes" are used herein, they shall be deemed to be
followed by the phrase "without limitation".
ARTICLE II
THE LOANS
Section 2.01. The Loans. Subject to the terms and conditions of this
Agreement and the Indenture, on the Closing Date, the Pass Through Trustee for
each Pass Through Trust shall make a loan to the Company by paying to the
Company the aggregate original principal amounts of the Equipment Notes being
issued to such Pass Through Trust as set forth on Schedule II opposite the name
of such Pass Through Trust. The Pass Through Trustees, on behalf of the Pass
Through Trusts, shall make such loans to the Company no later than 10:00 a.m.
(New York City time) on the Closing Date by transferring such amount in
immediately available funds to the Company at its account at The Chase
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Manhattan Bank (ABA No. ▇▇▇▇▇▇▇▇▇), Account Number ▇▇▇-▇-▇▇▇▇▇▇, Attention: ▇▇▇▇
▇▇▇▇▇▇▇.
Section 2.02. Issuance of Equipment Notes. Upon the occurrence of the
above payments by the Pass Through Trustee for each Pass Through Trust to the
Company, the Company shall issue, pursuant to and in accordance with Article II
of the Indenture, to the Subordination Agent as agent and trustee for the Pass
Through Trustee for each Pass Through Trust, one or more Equipment Notes of the
maturity and aggregate principal amount and bearing the interest rate set forth
in Schedule II opposite the name of such Pass Through Trust. Each such Equipment
Note shall be duly authenticated by the Loan Trustee pursuant to the Indenture,
registered in the name of the Subordination Agent and dated the Closing Date and
shall be delivered by the Loan Trustee to the Subordination Agent.
Section 2.03. The Closing. The closing (the "Closing") of the
transactions contemplated hereby shall take place at the offices of Debevoise &
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at 10:00 a.m. (New York City
time) on July 8, 2003, or at such other time or place as the parties shall
agree.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.01. Conditions Precedent to Obligations of the Pass Through
Trustees. The obligation of each Pass Through Trustee to make the loan
contemplated by Article II is subject to the fulfillment (or the waiver by such
Pass Through Trustee) prior to or on the Closing Date of the following
conditions precedent:
(a) The Company shall have tendered the Equipment Notes
to the Loan Trustee for authentication, and the Loan Trustee shall have
authenticated such Equipment Notes and shall have tendered the
Equipment Notes to the Subordination Agent on behalf of the applicable
Pass Through Trustee in accordance with Section 2.02.
(b) No change shall have occurred after the date of this
Agreement in applicable law or regulations thereunder or
interpretations thereof by appropriate regulatory authorities or any
court that would make it a violation of law or governmental regulations
for the Pass Through Trustees to make the loans contemplated by Section
2.01 or to acquire the Equipment Notes or to realize the benefits of
the security afforded by the Indenture.
(c) This Agreement and the following documents shall have
been duly authorized, executed and delivered by the respective party or
parties thereto (other
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than the Pass Through Trustees or the Loan Trustee), shall be in full
force and effect and executed counterparts (or copies thereof where
indicated) thereof shall have been delivered to each relevant Pass
Through Trustee:
(i) the Intercreditor Agreement;
(ii) the Class G Liquidity Facility relating to
the Pass Through Certificates, Series 2003-1G;
(iii) the Policy relating to the Pass Through
Certificates, Series 2003-1G;
(iv) the Pass Through Trust Agreements;
(v) the Indenture and the Indenture Supplement
covering the Aircraft and dated the Closing Date;
(vi) the Manufacturer's Consent;
(vii) a copy of the FAA ▇▇▇▇ of Sale; and
(viii) a copy of the Warranty ▇▇▇▇ of Sale.
(d) A Uniform Commercial Code financing statement or
statements covering the security interest created by the Indenture
naming the Company, as debtor, and the Loan Trustee, as secured party,
shall have been duly filed in all places necessary or desirable within
the State of Delaware.
(e) Each Pass Through Trustee shall have received the
following:
(i) a certificate dated the Closing Date of the
Secretary or an Assistant Secretary of the Company, certifying
as to (A) a copy of the resolutions of the Board of Directors
of the Company or the executive committee thereof duly
authorizing the transactions contemplated hereby and the
execution, delivery and performance by the Company of this
Agreement and the Indenture and each other document required
to be executed and delivered by the Company in accordance with
the provisions hereof or thereof and (B) a copy of the
certificate of incorporation and by-laws of the Company, as in
effect on the Closing Date;
(ii) a certificate or other evidence from the
Secretary of State of the State of Delaware, dated as of a
date reasonably near the Closing Date, as to the due
incorporation and good standing of the Company in such state;
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(iii) an incumbency certificate of the Company as
to the person or persons authorized to execute and deliver
this Agreement, the Indenture and each other document to be
executed by the Company in connection with the transactions
contemplated hereby and thereby, and the specimen signatures
of such person or persons; and
(iv) one or more certificates of the Loan Trustee
and the Subordination Agent certifying to the reasonable
satisfaction of the Pass Through Trustees as to the due
authorization, execution, delivery and performance by the Loan
Trustee and the Subordination Agent of each of the Operative
Documents to which the Loan Trustee or the Subordination Agent
is or will be a party and any other documents to be executed
by or on behalf of the Loan Trustee or Subordination Agent in
connection with the transactions contemplated hereby or
thereby.
(f) On the Closing Date, the following statements shall
be correct: (i) the representations and warranties herein of the
Company are correct in all material respects as though made on and as
of such date, except to the extent that such representations and
warranties relate solely to an earlier date (in which case such
representations and warranties are correct on and as of such earlier
date) and (ii) no event has occurred and is continuing that constitutes
an Event of Default or an Event of Loss or would constitute an Event of
Default or Event of Loss but for the requirement that notices be given
or time elapse or both.
(g) Each Pass Through Trustee and the Loan Trustee shall
have received an opinion addressed to it from ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.,
Senior Vice President and General Counsel of the Company (or such other
internal counsel to the Company as shall be reasonably satisfactory to
the Pass Through Trustees), substantially in the form set forth in
Exhibit A.
(h) Each Pass Through Trustee and the Loan Trustee shall
have received an opinion addressed to it from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
special counsel for U.S. Bank, the Loan Trustee and the Subordination
Agent, substantially in the form set forth in Exhibit B.
(i) Each Pass Through Trustee and the Loan Trustee shall
have received an opinion addressed to it from ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C.,
special FAA counsel in Oklahoma City, Oklahoma, substantially in the
form set forth in Exhibit C.
(j) Each Pass Through Trustee and the Loan Trustee shall
have received a certificate or certificates signed by the chief
financial or accounting officer, any Senior Vice President, the
Treasurer, any Vice President or any
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Assistant Treasurer (or any other Responsible Officer) of the Company,
dated the Closing Date, certifying as to the correctness of each of the
matters stated in Section 3.01(f).
(k) Each Pass Through Trustee shall have received a
certificate from U.S. Bank in its individual capacity and as Loan
Trustee and Subordination Agent, as applicable, dated the Closing Date,
signed by an authorized officer of U.S. Bank in its individual capacity
and as Loan Trustee and Subordination Agent, as applicable, certifying
for each such entity that no Loan Trustee Liens or Other Party Liens
attributable to it, as applicable, exist, and further certifying as to
the correctness of each of the matters stated in Section 5.01.
(l) [intentionally left blank]
(m) The Loan Trustee shall have received an insurance
report of an independent insurance broker and the related certificates
of insurance, each in form and substance reasonably satisfactory to the
Loan Trustee, as to the compliance with the terms of Section 7.06 of
the Indenture relating to insurance with respect to the Aircraft.
(n) No action or proceeding shall have been instituted
nor shall governmental action be threatened before any court or
governmental agency, nor shall any order, judgment or decree have been
issued or proposed to be issued by any court or governmental agency at
the time of the Closing to set aside, restrain, enjoin or prevent the
completion and consummation of this Agreement or the transactions
contemplated hereby.
(o) The Company shall have entered into the Underwriting
Agreement, the Class G Pass Through Certificates shall have been issued
and sold pursuant to the Underwriting Agreement, and the Underwriters
shall have transferred to the Class G Pass Through Trustee in
immediately available funds an amount at least equal to the aggregate
purchase price of the Series G Equipment Notes to be purchased from the
Company; and the purchasers of the Class C and Class D Pass Through
Certificates shall have transferred to the Class C and Class D Pass
Through Trustees in immediately available funds an amount at least
equal to the aggregate purchase price of the Series C and Series D
Equipment Notes to be purchased from the Company.
(p) The Loan Trustee shall have received an executed copy
of the Manufacturer's Consent substantially in the form set forth in
Exhibit D.
(q) The Loan Trustee shall have received a copy of a
current, valid standard certificate of airworthiness for the Aircraft
duly issued by the FAA,
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together with a copy of a duly executed certificate of registration of
the Aircraft with the FAA in the name of the Company.
(r) The Company shall have good title to the Aircraft,
free and clear of all Liens except Permitted Liens.
Promptly upon the recording of the Indenture (with the Indenture
Supplement attached) pursuant to the Transportation Code, the Company will cause
▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special FAA counsel in Oklahoma City, Oklahoma to deliver
to the Subordination Agent, to the Pass Through Trustees, to the Loan Trustee
and to the Company an opinion as to the due recording of such instrument and the
lack of filing of any intervening documents with respect to the Aircraft.
Section 3.02. Conditions Precedent to Obligations of the Company. The
obligation of the Company to issue and sell the Equipment Notes is subject to
the fulfillment (or waiver by the Company) prior to or on the Closing Date of
the following conditions precedent:
(a) No change shall have occurred after the date of this
Agreement in applicable law or regulations thereunder or
interpretations thereof by appropriate regulatory authorities or any
court that would make it a violation of law or governmental regulations
for the Company to enter into any transaction contemplated by the
Operative Documents or the Pass Through Trust Agreements.
(b) The documents referred to in Section 3.01(c) shall
have been duly authorized, executed and delivered by the respective
party or parties thereto (other than the Company), shall be in full
force and effect and executed counterparts (or copies thereof where
indicated) thereof shall have been delivered to the Company, and the
Company shall have received such documents and evidence with respect to
U.S. Bank, the Class G Liquidity Provider, the Policy Provider, the
Loan Trustee, the Subordination Agent and each Pass Through Trustee as
the Company may reasonably request in order to establish the
consummation of the transactions contemplated by this Agreement, the
taking of all corporate and other proceedings in connection therewith
and compliance with the conditions herein set forth.
(c) The Indenture (with the Indenture Supplement covering
the Aircraft attached) shall have been duly filed for recordation (or
shall be in the process of being so duly filed for recordation) with
the FAA pursuant to the Transportation Code.
(d) On the Closing Date, the representations and
warranties herein of U.S. Bank, the Loan Trustee, the Subordination
Agent and the Pass Through
7
Trustees shall be correct as though made on and as of such date, except
to the extent that such representations and warranties relate solely to
an earlier date (in which case such representations and warranties
shall have been correct on and as of such earlier date), and, insofar
as such representations and warranties concern U.S. Bank, the Loan
Trustee, the Subordination Agent or any Pass Through Trustee, such
party shall have so certified to the Company.
(e) The Company shall have received each opinion referred
to in Subsections 3.01(h), 3.01(i) and 3.01(l), each such opinion
(other than 3.01(l)) addressed to the Company or accompanied by a
letter from the counsel rendering such opinion authorizing the Company
to rely on such opinion as if it were addressed to the Company, and the
certificates referred to in Subsections 3.01(e)(iv) and 3.01(k).
(f) The Company shall have received (i) an opinion
addressed to it from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the
Pass Through Trustees, substantially in the form set forth in Exhibit
E-1, and (ii) an opinion addressed to it from Parkowski, Guerke &
Swayze, P.A., special Delaware counsel for the Pass Through Trustee,
substantially in the form set forth in Exhibit E-2.
(g) No action or proceeding shall have been instituted
nor shall governmental action be threatened before any court or
governmental agency, nor shall any order, judgment or decree have been
issued or proposed to be issued by any court or governmental agency at
the time of the Closing to set aside, restrain, enjoin or prevent the
completion and consummation of this Agreement or the transactions
contemplated hereby.
(h) The Company shall have received a certificate from
U.S. Bank dated the Closing Date, signed by an authorized officer of
U.S. Bank, certifying for each Pass Through Trustee that no Other Party
Liens attributable to it exist and further certifying as to the
correctness of each of the matters stated in Section 5.01.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND INDEMNITIES
OF THE COMPANY
Section 4.01. Representations and Warranties of the Company. The
Company represents and warrants that:
(a) The Company is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
Delaware, is a Certificated
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Air Carrier, is a Citizen of the United States, has the corporate power
and authority to own or hold under lease its properties and to enter
into and perform its obligations under the Operative Documents to which
it is a party and is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction in which the failure
to so qualify would have a material adverse effect on the consolidated
financial condition of the Company and its subsidiaries, considered as
a whole.
(b) The execution, delivery and performance by the
Company of this Agreement and the other Operative Documents to which
the Company is a party have been duly authorized by all necessary
corporate action on the part of the Company, do not require any
stockholder approval or approval or consent of any trustee or holder of
any indebtedness or obligations of the Company, except such as have
been duly obtained and are in full force and effect, and do not
contravene any law, governmental rule, regulation, judgment or order
binding on the Company or the certificate of incorporation or by-laws
of the Company or contravene or result in a breach of, or constitute a
default under, or result in the creation of any Lien (other than as
permitted under the Indenture) upon the property of the Company under,
any material indenture, mortgage, contract or other agreement to which
the Company is a party or by which it or any of its properties may be
bound or affected.
(c) Neither the execution and delivery by the Company of
this Agreement and the other Operative Documents to which it is a
party, nor the consummation by the Company of any of the transactions
contemplated hereby or thereby, requires the authorization, consent or
approval of, the giving of notice to, the filing or registration with
or the taking of any other action in respect of, the Department of
Transportation, the FAA or any other federal or state governmental
authority or agency, except for (i) the registration of the issuance
and sale of the Pass Through Certificates under the Securities Act of
1933, as amended, and under the securities laws of any state in which
the Pass Through Certificates may be offered for sale if the laws of
such state require such action, (ii) the qualification of the Pass
Through Trust Agreements under the Trust Indenture Act of 1939, as
amended, (iii) the filings referred to in Section 4.01(e), and (iv)
consents, approvals, notices, registrations and other actions required
to be obtained, given, made or taken only after the date hereof.
(d) This Agreement and each other Operative Document to
which the Company is a party have been duly executed and delivered by
the Company and constitute the legal, valid and binding obligations of
the Company enforceable against the Company in accordance with their
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights
of creditors generally and by general principles of equity
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and except, in the case of the Indenture, as limited by applicable laws
that may affect the remedies provided in the Indenture, which laws,
however, do not make the remedies provided in the Indenture inadequate
for the practical realization of the rights and benefits intended to be
provided thereby.
(e) Except for (i) the filing for recordation pursuant to
the Transportation Code of the Indenture (with the Indenture Supplement
covering the Aircraft attached) and (ii) with respect to the security
interests created by such documents, the filing of financing statements
(and continuation statements at periodic intervals) under the Uniform
Commercial Code of Delaware, no further filing or recording of any
document is necessary or advisable under the laws of the United States
or any state thereof as of the Closing Date in order to establish and
perfect the security interest in the Aircraft created under the
Indenture in favor of the Loan Trustee as against the Company and any
third parties in any applicable jurisdiction in the United States.
(f) The Company is not an investment company or a company
controlled by an investment company within the meaning of the
Investment Company Act of 1940, as amended.
(g) As of the Closing Date, (i) the Company has good
title to the Aircraft, free and clear of Liens other than Permitted
Liens, (ii) the Aircraft has been duly certified by the FAA as to type
and airworthiness in accordance with the terms of the Indenture, (iii)
the Indenture (with the Indenture Supplement covering the Aircraft
attached) has been duly filed for recordation (or shall be in the
process of being so duly filed for recordation) with the FAA pursuant
to the Transportation Code and (iv) the Aircraft is duly registered
with the FAA in the name of the Company.
Section 4.02. General Indemnity. (a) Claims Defined. For the purposes
of this Section 4.02, "Claims" shall mean any and all liabilities, obligations,
losses, damages, penalties, claims, actions, suits, costs or expenses of
whatsoever kind and nature (whether or not on the basis of negligence, strict or
absolute liability or liability in tort) that may be imposed on, incurred by,
suffered by or asserted against an Indemnitee, as defined herein, and, except as
otherwise expressly provided in this Section 4.02, shall include all reasonable
out-of-pocket costs, disbursements and expenses (including reasonable
out-of-pocket legal fees and expenses) of an Indemnitee in connection therewith
or related thereto.
(b) Indemnitee Defined. For the purposes of this Section 4.02,
"Indemnitee" means (i) U.S. Bank and the Loan Trustee, (ii) each separate or
additional trustee appointed pursuant to Section 8.02 of the Indenture, (iii) so
long as it holds any Equipment Notes as agent and trustee of any Pass Through
Trustee, the ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇, (▇▇) so long as it is the holder of any Equipment Notes, each Pass
Through Trustee and each Related Noteholder, (v) each Liquidity Provider and
(vi) each of their respective successors and permitted assigns in such
capacities, agents, servants, officers, employees and directors (the respective
agents, servants, officers, employees and directors of each of the foregoing
Indemnitees, as applicable, together with such Indemnitee, being referred to
herein collectively as the "Related Indemnitee Group" of such Indemnitee);
provided that such Persons shall, to the extent they are not signatories to this
Agreement, have expressly agreed in writing to be bound by the terms of this
Section 4.02 prior to, or concurrently with, the making of a Claim hereunder. If
an Indemnitee fails to comply with any duty or obligation under this Section
4.02 with respect to any Claim, such Indemnitee shall not, to the extent such
failure was prejudicial to the Company, be entitled to any indemnity with
respect to such Claim under this Section 4.02. No holder of a Pass Through
Certificate in its capacity as such holder shall be an Indemnitee for purposes
hereof.
(c) Claims Indemnified. Subject to the exclusions stated in
Subsection 4.02(d), the Company agrees to indemnify, protect, defend and hold
harmless on an after-Tax basis each Indemnitee against Claims resulting from or
arising out of the sale, purchase, acceptance, non-acceptance or rejection of
the Aircraft under the Purchase Agreement or the ownership, possession, use,
non-use, substitution, airworthiness, control, maintenance, repair, operation,
registration, re-registration, condition, sale, lease, sublease, storage,
modification, alteration, return, transfer or other disposition of the Aircraft,
the Airframe, any Engine or any Part (including, without limitation, latent or
other defects, whether or not discoverable, and any claim for patent, trademark
or copyright infringement) by the Company, any Permitted Lessee or any other
Person. Without limiting the foregoing and subject to, and without duplication
of, the provisions of Section 6.01(a), the Company agrees to pay the reasonable
ongoing fees, and the reasonable out-of-pocket costs and expenses (including,
without limitation, reasonable attorney's fees and disbursements and, to the
extent payable as provided in the Indenture, reasonable compensation and
expenses of the Loan Trustee's agents), of the Loan Trustee in connection with
the transactions contemplated hereby.
(d) Claims Excluded. The following are excluded from the Company's
agreement to indemnify an Indemnitee under this Section 4.02:
(i) any Claim to the extent such Claim is attributable to
acts or events occurring after (x) the Lien of the Indenture has been
discharged or (y) the transfer of possession of the Aircraft pursuant
to Article IV of the Indenture except to the extent that such Claim is
attributable to acts occurring in connection with the exercise of
remedies pursuant to Section 4.02 of the Indenture following the
occurrence and continuance of an Event of Default; provided that
nothing in this clause (i) shall be deemed to release the Company from
any of its obligations
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under the Operative Documents that expressly provide for performance
after the termination of the Indenture;
(ii) any Claim to the extent such Claim is, or is
attributable to, a Tax, except with respect to paying any indemnity on
an after-tax basis;
(iii) any Claim to the extent such Claim is attributable to
the negligence or willful misconduct of such Indemnitee or such
Indemnitee's Related Indemnitee Group;
(iv) any Claim to the extent such Claim is attributable to
the noncompliance by such Indemnitee or such Indemnitee's Related
Indemnitee Group with any of the terms of, or any misrepresentation by
an Indemnitee or its Related Indemnitee Group contained in, this
Agreement, any other Operative Document or any Pass Through Document to
which such Indemnitee or any of such Related Indemnitee Group is a
party or any agreement relating hereto or thereto;
(v) any Claim to the extent such Claim constitutes a
Permitted Lien attributable to such Indemnitee;
(vi) any Claim to the extent such Claim is attributable to
the offer, sale, assignment, transfer, participation or other
disposition of any Equipment Note or Pass Through Certificate, all or
any part of such Indemnitee's interest in the Operative Documents or
the Pass Through Documents or any interest in the Collateral or any
similar security (whether voluntary or involuntary) by or on behalf of
such Indemnitee or its Related Indemnitee Group other than during the
occurrence and continuance of an Event of Default (provided that any
such offer, sale, assignment, transfer, participation or other
disposition during the occurrence and continuation of an Event of
Default shall not be subject to indemnification unless it is made in
accordance with the Indenture and applicable law);
(vii) any Claim to the extent such Claim is attributable to
(A) a failure on the part of the Loan Trustee to distribute in
accordance with this Agreement or the Indenture any amounts received
and distributable by it hereunder or thereunder, (B) a failure on the
part of the Subordination Agent to distribute in accordance with the
Intercreditor Agreement any amounts received and distributable by it
thereunder or (C) a failure on the part of any Pass Through Trustee to
distribute in accordance with the Pass Through Trust Agreement to which
it is a party any amounts received and distributable by it thereunder;
(viii) any Claim to the extent such Claim is attributable to
the authorization or giving or withholding of any future amendments,
supplements,
12
waivers or consents with respect to any Operative Document or any Pass
Through Document, other than such as have been requested by the Company
or that occur as the result of an Event of Default, or such as are
expressly required or contemplated by the provisions of the Operative
Documents or the Pass Through Documents;
(ix) any Claim to the extent such Claim is (a) paid by the
Company pursuant to any indemnification, compensation or reimbursement
provision of any other Operative Document or any Pass Through Document
(without duplication of any payment obligation of the Company) or (b)
payable or borne by a Person in its individual capacity other than the
Company pursuant to any provision of any Operative Document or any Pass
Through Document;
(x) any Claim to the extent such Claim is an ordinary and
usual operating or overhead expense;
(xi) any Claim to the extent such Claim is incurred by or
asserted as a result of any "prohibited transaction" within the meaning
of Section 406 of ERISA or Section 4975 of the Code; and
(xii) any Claim to the extent such Claim is attributable to
one or more of the other aircraft financed through the offering of Pass
Through Certificates (in the event of doubt, any Claim shall be
allocated between the Aircraft and such other aircraft in the same
proportion that the then outstanding Equipment Notes bear to the then
outstanding equipment notes issued with respect to the other aircraft
and held by the Pass Through Trustees).
(e) Insured Claims. In the case of any Claim indemnified by the
Company hereunder that is covered by a policy of insurance maintained by the
Company, each Indemnitee agrees to cooperate, at the Company's expense, with the
insurers in the exercise of their rights to investigate, defend or compromise
such Claim.
(f) Claims Procedure. An Indemnitee shall promptly notify the
Company of any Claim as to which indemnification is sought; provided that the
failure to provide such prompt notice shall not release the Company from any of
its obligations to indemnify hereunder, except to the extent that the Company is
prejudiced by such failure or the Company's indemnification obligations are
increased as a result of such failure. Such Indemnitee shall promptly submit to
the Company all additional information in such Indemnitee's possession to
substantiate such request for payment to the Company as the Company shall
reasonably request. Subject to the rights of insurers under policies of
insurance maintained by the Company, the Company shall have the right, at its
sole cost and expense, to investigate, and the right in its sole discretion to
defend or compromise, any Claim for which indemnification is sought under this
Section 4.02, and, at the
13
Company's expense, the Indemnitee shall cooperate with all reasonable requests
of the Company in connection therewith. Such Indemnitee shall not enter into a
settlement or other compromise with respect to any Claim without the prior
written consent of the Company, which consent shall not be unreasonably withheld
or delayed, unless such Indemnitee waives its right to be indemnified with
respect to such Claim under this Section 4.02. Where the Company or the insurers
under a policy of insurance maintained by the Company undertake the defense of
an Indemnitee with respect to a Claim, no additional legal fees or expenses of
such Indemnitee in connection with the defense of such Claim shall be
indemnified hereunder unless such fees or expenses were incurred at the written
request of the Company or such insurers. Subject to the requirements of any
policy of insurance, an Indemnitee may participate at its own expense in any
judicial proceeding controlled by the Company pursuant to the preceding
provisions; provided that such party's participation does not, in the opinion of
the counsel appointed by the Company or its insurers to conduct such
proceedings, interfere with such control; and such participation shall not
constitute a waiver of the indemnification provided in this Section 4.02.
Notwithstanding anything to the contrary contained herein, the Company shall not
under any circumstances be liable for the fees and expenses of more than one
counsel for all Indemnitees.
(g) Subrogation. To the extent that a Claim indemnified by the
Company under this Section 4.02 is in fact paid in full by the Company or an
insurer under a policy of insurance maintained by the Company, the Company or
such insurer, as the case may be, shall, without any further action, be
subrogated to the rights and remedies of the Indemnitee on whose behalf such
Claim was paid with respect to the transaction or event giving rise to such
Claim. Such Indemnitee shall give such further assurances or agreements and
shall cooperate with the Company or such insurer, as the case may be, to permit
the Company or such insurer to pursue such rights and remedies, if any, to the
extent reasonably requested by the Company. So long as no Event of Default shall
have occurred and be continuing, if an Indemnitee receives any payment from any
party other than the Company or its insurers, in whole or in part, with respect
to any Claim paid by the Company or its insurers hereunder, it shall promptly
pay over to the Company the amount received (but not an amount in excess of the
amount the Company or any of its insurers has paid in respect of such Claim).
Any amount referred to in the preceding sentence that is payable to the Company
shall not be paid to the Company, or, if it has been previously paid directly to
the Company, shall not be retained by the Company, if at the time of such
payment an Event of Default shall have occurred and be continuing, but shall be
paid to and held by the Loan Trustee as security for the obligations of the
Company under this Agreement, the Indenture and the other Operative Documents,
and, if the Company agrees, shall be applied against the Company's obligations
hereunder and thereunder when and as they become due and payable and, at such
time as there shall not be continuing any such Event of Default, such amount, to
the extent not previously so applied against the Company's obligations, shall be
paid to the Company.
14
(h) No Guaranty. Nothing set forth in this Section 4.02 shall
constitute a guarantee by the Company that the Aircraft shall at any time have
any particular value, useful life or residual value.
(i) Payments; Interest. Any amount payable to any Indemnitee
pursuant to this Section 4.02 shall be paid within 30 days after receipt by the
Company of a written demand therefor from such Indemnitee accompanied by a
written statement describing in reasonable detail the Claims that are the
subject of and basis for such indemnity and the computation of the amount
payable. Any payments made pursuant to this Section 4.02 directly to an
Indemnitee or to the Company, as the case may be, shall be made in immediately
available funds at such bank or to such account as is specified by the payee in
written directions to the payor or, if no such directions shall have been given,
by check of the payor payable to the order of the payee and mailed to the payee
by certified mail, return receipt requested, postage prepaid to its address
referred to in Section 7.01. To the extent permitted by applicable law, interest
at the Past Due Rate shall be paid, on demand, on any amount or indemnity not
paid when due pursuant to this Section 4.02 until the same shall be paid. Such
interest shall be paid in the same manner as the unpaid amount in respect of
which such interest is due.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF U.S. BANK
Section 5.01. Representations, Warranties and Covenants of U.S. Bank.
U.S. Bank, generally, and each of the Loan Trustee, the Subordination Agent and
the Pass Through Trustee as it relates to it, represents, warrants and covenants
that:
(a) U.S. Bank is a national banking association duly
organized and validly existing in good standing under the laws of the
United States, is eligible to be the Loan Trustee under Section 8.01(a)
of the Indenture, will promptly comply with Section 8.01(a) of the
Indenture and has full power, authority and legal right to enter into
and perform its obligations under each of the Operative Documents and
the Pass Through Documents to which U.S. Bank, the Loan Trustee, the
Subordination Agent or any Pass Through Trustee is a party and, in its
capacity as Loan Trustee and Pass Through Trustee, respectively, to
authenticate the Equipment Notes and the Pass Through Certificates,
respectively. U.S. Bank is qualified to act as Loan Trustee under
Section 8.01(c) of the Indenture.
(b) The execution, delivery and performance by U.S. Bank,
individually or in its capacity as Loan Trustee, Subordination Agent or
Pass Through Trustee, as the case may be, of this Agreement, each of
the other Operative Documents and each of the Pass Through Documents to
which U.S.
15
Bank, the Loan Trustee, the Subordination Agent or any Pass Through
Trustee is a party, the performance by U.S. Bank, individually or in
its capacity as Loan Trustee, Subordination Agent or Pass Through
Trustee, as the case may be, of its obligations thereunder and the
consummation on the Closing Date of the transactions contemplated
thereby, and the authentication of the Equipment Notes and the Pass
Through Certificates, respectively, to be delivered on the Closing
Date, (i) have been duly authorized by all necessary action on the part
of U.S. Bank, the Loan Trustee, the Subordination Agent and each Pass
Through Trustee, as the case may be, (ii) and do not violate any law or
regulation of the United States or of the state of the United States in
which U.S. Bank is located and which governs the banking and trust
powers of U.S. Bank or any order, writ, judgment or decree of any
court, arbitrator or governmental authority applicable to U.S. Bank,
the Loan Trustee, the Subordination Agent or any Pass Through Trustee
or any of their assets, (iii) will not violate any provision of the
articles of association or by-laws of U.S. Bank and (iv) will not
violate any provision of, or constitute a default under, any mortgage,
indenture, contract, agreement or undertaking to which any of U.S.
Bank, the Loan Trustee, the Subordination Agent or any Pass Through
Trustee is a party or by which any of them or their respective
properties may be bound or affected.
(c) Neither the execution and delivery by U.S. Bank,
individually or in its capacity as Loan Trustee, Subordination Agent or
Pass Through Trustee, as the case may be, of this Agreement, any other
Operative Document or any Pass Through Document to which U.S. Bank, the
Loan Trustee, the Subordination Agent or any Pass Through Trustee is a
party, nor the consummation by U.S. Bank, the Loan Trustee, the
Subordination Agent or any Pass Through Trustee of any of the
transactions contemplated hereby or thereby, requires the
authorization, consent or approval of, the giving of notice to, the
filing or registration with, or the taking of any other action in
respect of, (i) any governmental authority or agency of the United
States or the state of the United States where U.S. Bank is located and
regulating the banking and trust powers of U.S. Bank, and (ii) any
trustee or other holder of any debt of U.S. Bank.
(d) This Agreement, each other Operative Document and
each Pass Through Document to which U.S. Bank, the Loan Trustee, the
Subordination Agent or any Pass Through Trustee is a party have been
duly executed and delivered by U.S. Bank, individually and in its
capacity as Loan Trustee, Subordination Agent or Pass Through Trustee,
as the case may be, and constitute the legal, valid and binding
obligations of U.S. Bank, the Loan Trustee, the Subordination Agent and
such Pass Through Trustee, to the extent it is a party thereto,
enforceable against it in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other
16
similar laws affecting the rights of creditors generally and by general
principles of equity.
(e) It unconditionally agrees with and for the benefit of
the parties to this Agreement that it will not directly or indirectly
create, incur, assume or suffer to exist any Loan Trustee Lien or Other
Party Lien attributable to it, and it agrees that it will, at its own
cost and expense, promptly take such action as may be necessary to
discharge and satisfy in full any such Lien; and it shall indemnify,
protect, defend and hold harmless each Indemnitee and the Company
against Claims in any way resulting from or arising out of a breach by
it of its obligations under this Section 5.01(e).
(f) The Equipment Notes to be issued to the Subordination
Agent pursuant hereto are being acquired by it to be held under the
Intercreditor Agreement.
(g) Each of U.S. Bank, the Loan Trustee, the
Subordination Agent and each Pass Through Trustee agrees that it will
not impose any lifting charge, cable charge, remittance charge or any
other charge or fee on any transfer by the Company of funds to, through
or by U.S. Bank, the Loan Trustee, the Subordination Agent or such Pass
Through Trustee pursuant to this Agreement, any other Operative
Document or any Pass Through Document, except as may be otherwise
agreed to in writing by the Company.
(h) Each of U.S. Bank, the Loan Trustee, the
Subordination Agent and any Pass Through Trustee agrees to be bound by
the terms of Section 10.16 of the Indenture.
(i) There are no Taxes payable by U.S. Bank, the Loan
Trustee, the Subordination Agent or any Pass Through Trustee imposed by
the State of Connecticut, the State of Delaware or any political
subdivision or taxing authority thereof in connection with the
execution, delivery or performance by U.S. Bank, the Loan Trustee, the
Subordination Agent or any Pass Through Trustee of any Operative
Document or any Pass Through Document (other than franchise or other
taxes based on or measured by any fees or compensation received by any
such Person for services rendered in connection with the transactions
contemplated by the Operative Documents or the Pass Through Documents),
and there are no Taxes payable by any Pass Through Trustee imposed by
the State of Connecticut, the State of Delaware or any political
subdivision thereof in connection with the acquisition, possession or
ownership by such Pass Through Trustee of any of the Equipment Notes
(other than franchise or other taxes based on or measured by any fees
or compensation received by such Pass Through Trustee for services
rendered in connection with the transactions contemplated by
17
the Operative Documents or the Pass Through Documents) and, assuming
that the Pass Through Trusts will not be taxable for Federal income tax
purposes as corporations, but, rather, will be characterized for such
purposes as grantor trusts or partnerships, the Pass Through Trusts
will not be subject to any Taxes imposed by the State of Connecticut,
the State of Delaware or any political subdivision thereof.
(j) Except with the consent of the Company, which shall
not be unreasonably withheld, U.S. Bank will act as Pass Through
Trustee solely through its offices within the State of Connecticut,
except for such services that may be performed for it by various
agents, but not directly by it, in other states.
(k) There are no pending or, to its knowledge, threatened
actions or proceedings against the U.S. Bank, the Loan Trustee, the
Subordination Agent or any Pass Through Trustee before any court or
administrative agency which individually or in the aggregate, if
determined adversely to it, would materially adversely affect the
ability of U.S. Bank, the Loan Trustee, the Subordination Agent or any
Pass Through Trustee to perform its obligations under any Operative
Document or any Pass Through Document.
(l) The representations and warranties contained in
Section 7.15 of each Pass Through Trust Agreement are true, complete
and correct as of the Closing Date.
ARTICLE VI
OTHER COVENANTS AND AGREEMENTS
Section 6.01. Other Agreements. (a) The Company agrees promptly to pay
(without duplication of any other obligation the Company may have to pay such
amounts) (A) the initial and annual fees and (to the extent the Loan Trustee is
entitled to be reimbursed for its reasonable expenses) the reasonable expenses
of the Loan Trustee in connection with the transactions contemplated hereby and
(B) the following expenses incurred by the Loan Trustee, the Subordination Agent
and the Pass Through Trustees in connection with the negotiation, preparation,
execution and delivery of this Agreement, the other Operative Documents and the
other documents or instruments referred to herein or therein:
(i) the reasonable fees, expenses and disbursements of
(x) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the Loan Trustee, the
Subordination Agent and the Pass Through Trustees and (y) ▇▇▇▇▇ &
▇▇▇▇▇▇▇, P.C., special FAA counsel in Oklahoma City, Oklahoma; and
18
(ii) all reasonable expenses incurred in connection with
printing and document production or reproduction expenses, and the
filing of Uniform Commercial Code financing statements.
(b) The Loan Trustee, the Noteholders, the Subordination Agent and
each Pass Through Trustee agree to execute and deliver, at the Company's
expense, all such documents as the Company may reasonably request for the
purpose of continuing the registration of the Aircraft at the FAA in the
Company's name. In addition, each of the Loan Trustee, the Subordination Agent,
each Pass Through Trustee and any other Noteholder agrees, for the benefit of
the Company, to cooperate with the Company in effecting any foreign registration
of the Aircraft pursuant to Section 7.02(e) of the Indenture; provided that
prior to any such change in the country of registry of the Aircraft the
conditions set forth in Section 7.02(e) of the Indenture are met to the
reasonable satisfaction of, or waived by, the Loan Trustee and the Policy
Provider.
(c) Each of U.S. Bank, the Loan Trustee, the Subordination Agent,
each Pass Through Trustee and any other Noteholder, the Class G Liquidity
Provider (by entering into the Class G Liquidity Facility), and the Policy
Provider (by entering into the Policy Provider Agreement), agrees that, unless
an Event of Default shall have occurred and be continuing (and then only in
accordance with the Indenture), it shall not take any action contrary to, or
otherwise in any way interfere with or disturb, the quiet enjoyment of the use
and possession of the Aircraft, the Airframe, any Engine or any Part by the
Company or any transferee of any interest in any thereof permitted under the
Indenture.
(d) Each Noteholder, including, without limitation, the
Subordination Agent and each Pass Through Trustee, unconditionally agrees with
and for the benefit of the parties to this Agreement that it will not directly
or indirectly create, incur, assume or suffer to exist any Noteholder Liens, and
such Noteholder agrees that it will, at its own cost and expense, promptly take
such action as may be necessary to discharge and satisfy in full any such
Noteholder Lien; and each Noteholder hereby agrees to indemnify, protect, defend
and hold harmless each Indemnitee and the Company against Claims in any way
resulting from or arising out of a breach by it of its obligations under this
Section 6.01(d).
(e) By its acceptance of its Equipment Notes, each Noteholder
unconditionally agrees for the benefit of the Company and the Loan Trustee to be
bound by and to perform and comply with all of the terms of such Equipment
Notes, the Indenture and this Agreement applicable to such Noteholder.
(f) Each Pass Through Trustee shall file any tax returns required
to be filed by the related Pass Through Trust and the Company shall pay the
Applicable Portion of any expenses relating thereto. The Company shall be
responsible for the Applicable Portion of any interest or penalties related to
any Pass Through Trustee's failure to file
19
any such tax returns required to be filed by the relevant Pass Through Trust,
except to the extent that such failure is attributable to the gross negligence
or willful misconduct of such Pass Through Trustee. For purposes of this Section
6.01(f), the "Applicable Portion" of any amount shall equal such amount
multiplied by a fraction, the numerator of which shall be the sum of the then
outstanding aggregate principal amount of the Equipment Notes held by the
relevant Pass Through Trustee, and the denominator of which shall be the sum of
the outstanding aggregate principal amount of all "Equipment Notes" issued under
each of the "Indentures" (in each case as defined in the Intercreditor
Agreement) held by such Pass Through Trustee.
Section 6.02. Certain Covenants of the Company. The Company covenants
and agrees with the Loan Trustee as follows:
(a) On and after the Closing, the Company will cause to
be done, executed, acknowledged and delivered such further acts,
conveyances and assurances as the Loan Trustee shall reasonably request
for accomplishing the purposes of this Agreement and the other
Operative Documents; provided that any instrument or other document so
executed by the Company will not expand any obligations or limit any
rights of the Company in respect of the transactions contemplated by
the Operative Documents.
(b) The Company, at its own expense, will cause the
Indenture (with the Indenture Supplement covering the Aircraft
attached) to be promptly filed and recorded, or filed for recording,
with the FAA to the extent permitted under the Transportation Code and
the rules and regulations of the FAA thereunder.
(c) The Company, at its expense, will take, or cause to
be taken, such action with respect to the due and timely recording,
filing, re-recording and refiling of the Indenture and any financing
statements and any continuation statements or other instruments as are
necessary to maintain, so long as the Indenture is in effect, the
perfection of the security interests created by the Indenture or will
furnish the Loan Trustee timely notice of the necessity of such action,
together with such instruments, in execution form, and such other
information as may be required to enable the Loan Trustee to take such
action. In addition, the Company will pay any and all recording, stamp
and other similar taxes payable in the United States, and in any other
jurisdiction where the Aircraft is registered, in connection with the
execution, delivery, recording, filing, re-recording and refiling of
the Indenture or any such financing statements or other instruments.
The Company will notify the Loan Trustee of any change in its state of
incorporation promptly after making such change or in any event within
the period of time necessary under applicable law to prevent the lapse
of perfection (absent refiling) of financing statements filed under the
Operative Documents.
20
(d) The Company shall at all times maintain its corporate
existence except as permitted by Section 6.02(e).
(e) The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease substantially all of its assets as an
entirety to any Person, unless:
(i) the Person formed by such consolidation or into which
the Company is merged or the Person that acquires by conveyance,
transfer or lease substantially all of the assets of the Company as an
entirety shall, if and to the extent required under Section 1110 in
order that the Loan Trustee shall continue to be entitled to any
benefits of Section 1110 with respect to the Aircraft, be a
Certificated Air Carrier and shall execute and deliver to the Loan
Trustee an agreement containing the express assumption by such
successor Person of the due and punctual performance and observance of
each covenant and condition of the Operative Documents to which the
Company is a party to be performed or observed by the Company;
(ii) immediately after giving effect to such transaction,
no Event of Default shall have occurred and be continuing; and
(iii) the Company shall have delivered to the Loan Trustee,
each Liquidity Provider and the Policy Provider a certificate signed by
a Responsible Officer of the Company, and an opinion of counsel (which
may be the Company's General Counsel or such other internal counsel to
the Company as shall be reasonably satisfactory to the Loan Trustee,
such Liquidity Provider and the Policy Provider), each stating that
such consolidation, merger, conveyance, transfer or lease and the
assumption agreement mentioned in clause (i) above comply with this
Section 6.02(e) and that all conditions precedent herein provided
relating to such transaction have been complied with (except that such
opinion need not cover the matters referred to in clause (ii) above and
may rely, as to factual matters, on a certificate of an officer of the
Company) and, in the case of such opinion, that such assumption
agreement has been duly authorized, executed and delivered by such
successor Person and is enforceable against such successor Person in
accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the rights of creditors generally and by general
principles of equity.
Upon any consolidation or merger, or any conveyance, transfer or lease
of substantially all of the assets of the Company as an entirety in accordance
with this
21
Section 6.02(e), the successor Person formed by such consolidation or into which
the Company is merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Agreement and the other Operative Documents with the
same effect as if such successor Person had been named as the Company herein. If
the Aircraft is at the time registered with the FAA, at the time of, or promptly
following, any such consolidation or merger, the Person formed by such
consolidation or into which the Company is merged will make such filings and
recordings with the FAA pursuant to the Transportation Code, or if the Aircraft
is at the time not registered with the FAA, such Person will make such filings
and recordings with the applicable aviation authority as shall be necessary to
evidence such consolidation or merger.
(f) The Company shall, for as long as and to the extent
required under Section 1110 in order that the Loan Trustee shall be
entitled to any of the benefits of Section 1110 with respect to the
Aircraft, remain a Certificated Air Carrier.
(g) The Company shall not issue Series E Equipment Notes
pursuant to the Indenture, unless it shall have satisfied the
conditions to any such issuance in the Intercreditor Agreement, the
Supplemental Agreement and the other Operative Documents, received
Ratings Confirmation (as defined in the Intercreditor Agreement). If
Series E Equipment Notes are initially issued to other than the Pass
Through Trustee for the Class E Certificates, the Company will cause
such Series E Equipment Notes to be subject to the provisions of the
Intercreditor Agreement that allow the "Controlling Party" (as defined
in the Intercreditor Agreement), during the continuance of an
"Indenture Event of Default" (as defined in the Intercreditor
Agreement), to direct the Loan Trustee in taking action under the
Indenture.
(h) If the Aircraft has been registered in a country
other than the United States pursuant to Section 7.02(e) of the
Indenture, the Company will furnish to the Loan Trustee annually after
such registration, commencing with the calendar year after such
registration is effected, an opinion of special counsel in the
applicable country reasonably satisfactory to the Loan Trustee and the
Policy Provider, stating that, in the opinion of such counsel, either
(i) such action has been taken with respect to the recording, filing,
re-recording and refiling of the Operative Documents and any
supplements and amendments thereto as is necessary to establish,
perfect and protect the Lien created by the Indenture, reciting the
details of such actions, or (ii) no such action is necessary to
maintain the perfection of such Lien.
22
ARTICLE VII
MISCELLANEOUS
Section 7.01. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices required or permitted under the terms
and provisions of this Agreement shall be in English and in writing, and any
such notice may be given by registered or certified United States mail, courier
service or facsimile or any other customary means of communication, and any such
notice shall be effective when delivered (or, if 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 such
transmission was received) to the recipient thereof in accordance with the
provisions of this 7.01, (a) if to the Company, U.S. Bank, the Loan Trustee, the
Subordination Agent or any Pass Through Trustee, to its respective address
(including facsimile number) set forth on Schedule I, or (b) if to any
subsequent Noteholder, addressed to such Noteholder at its address set forth in
the Equipment Note Register maintained pursuant to Section 2.07 of the
Indenture.
Any party, by notice to the other parties hereto, may designate
additional or different addresses for subsequent notices or communications.
Whenever the words "notice" or "notify" or similar words are used herein, they
mean the provision of formal notice set forth in this Section 7.01.
Section 7.02. Survival of Representations, Warranties, Indemnities,
Covenants and Agreements. Except as otherwise provided for herein, the
representations, warranties, indemnities, covenants and agreements of the
Company, U.S. Bank, the Loan Trustee, the Subordination Agent, each Pass Through
Trustee and the Noteholders provided for in this Agreement, and each of their
obligations hereunder, shall survive the making of the loans, any return of the
Aircraft, the transfer of any interest by any Noteholder of its Equipment Note
and the expiration or termination (to the extent arising out of acts or events
occurring prior to such expiration) of any Operative Documents.
Section 7.03. Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN THE
STATE OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.04. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining
23
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 7.05. No Oral Modifications or Continuing Waivers; Consents.
Subject to Section 9.03 of the Indenture, 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 party against which the enforcement of
the change, waiver, discharge or termination is sought; provided that no such
change, waiver, discharge or termination shall be effective unless a signed copy
thereof is delivered to the Loan Trustee. Each Pass Through Trustee and, by its
acceptance of an Equipment Note, each subsequent Noteholder covenants and agrees
that at any time after the date hereof, the Company and the Loan Trustee may,
pursuant to Section 9.01 of the Indenture, enter into one or more agreements
supplemental to the Indenture and to amend the Equipment Notes, without notice
to or consent of any Noteholder, to provide for the issuance of New Series C
Equipment Notes, New Series D Equipment Notes and/or Second New Series D
Equipment Notes and/or Pass Through Certificates issued by a New Trust in
connection with a Refunding and to make changes relating thereto.
Section 7.06. Effect of Headings and Table of Contents. The headings of
the various Articles and Sections herein and in the Table of Contents are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
Section 7.07. Successors and Assigns. All covenants, agreements,
representations and warranties in this Agreement by the Company, by U.S. Bank,
individually or as Loan Trustee, Subordination Agent or Pass Through Trustee, or
by any Noteholder, shall bind and inure to the benefit of and be enforceable by
the Company, and subject to the terms of Section 6.02(e), its successors and
permitted assigns, each Pass Through Trustee and any successor or other trustee
under the Pass Through Trust Agreement to which it is a party, the Subordination
Agent and its successor under the Intercreditor Agreement and the Loan Trustee
and its successor under the Indenture, whether so expressed or not.
Section 7.08. Benefits of Agreement. Nothing in this Agreement, express
or implied, shall give to any Person, other than the parties hereto and their
successors hereunder, any benefit or any legal or equitable right, remedy or
claim under this Agreement, except as provided expressly herein. The Company
agrees and acknowledges that the Indemnitees that are not parties to this
Agreement are third party beneficiaries of the indemnities by the Company
contained in Section 4.02, that each Liquidity Provider is a third party
beneficiary of the Company's representations and warranties in Section 4.01 and
the covenant and agreement of the Company contained in Section 6.02(e) and that
the Policy Provider is a third party beneficiary of the covenant and agreement
of the Company contained in Sections 6.02(e) and 6.02(h) and that such Persons
may rely on such indemnities, representations and warranties or covenants and
24
agreements, as the case may be, to the same extent as if such indemnities,
representations and warranties or covenants and agreements were made to such
Indemnitees, such Liquidity Provider or the Policy Provider, as the case may be,
directly.
Section 7.09. Counterparts. This Agreement may be executed in any
number of counterparts (and each of the parties hereto 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 shall
together constitute one instrument.
Section 7.10. Submission to Jurisdiction. Each of the parties hereto,
to the extent it may do so under applicable law, for purposes hereof and of all
other Operative Documents hereby (a) 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 their successors or permitted assigns and (b)
waives, and agrees not to assert, by way of motion, as a defense, or otherwise,
in any such suit, action or proceeding, that the suit, action or proceeding is
brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper or that this Agreement or the subject matter hereof or
any of the transactions contemplated hereby may not be enforced in or by such
courts.
Section 7.11. No Petition. Each of the Company, the Loan Trustee, the
Pass Through Trustee and the Subordination Agent covenant that until the Series
G Equipment Notes have been paid in full, it shall not file an involuntary
bankruptcy petition or initiate any other form of insolvency proceeding against
the Pass Through Trust holding such Equipment Notes.
Section 7.12. Section 1110. It is the intention of each of the Company,
the Noteholders (such intention being evidenced by each of their acceptance of
an Equipment Note) and the Loan Trustee that the Loan Trustee shall be entitled
to the benefits of Section 1110 with respect to the right to take possession of
the Aircraft, Airframe, Engines and Parts and to enforce any of its other rights
and remedies as provided in the Indenture in the event of a case under Chapter
11 of the Bankruptcy Code in which the Company is a debtor.
Section 7.13. No Waiver. No failure on the part of any party hereto to
exercise, and no delay by any party hereto in exercising, any of its respective
rights, powers, remedies or privileges under this Agreement or provided at law,
in equity or otherwise shall impair, prejudice or constitute a waiver of any
such right, power, remedy or privilege or be construed as a waiver of any breach
hereof or default hereunder or as an
25
acquiescence therein nor shall any single or partial exercise of any such right,
power, remedy or privilege preclude any other or further exercise thereof by it
or the exercise of any other right, power, remedy or privilege by it. No notice
to or demand on any party hereto in any case shall, unless otherwise required
under this Agreement, entitle such party to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the rights of
any party hereto to any other or further notice, in any circumstances without
notice or demand.
Section 7.14. Further Assurances. Each party hereto shall execute,
acknowledge and deliver or shall cause to be executed, acknowledged and
delivered, all such further agreements, instruments, certificates or documents,
and shall do and cause to be done such further acts and things, in any case, as
any other party hereto shall reasonably request in connection with the
administration of, or to carry out more effectually the purposes of, or to
better assure and confirm to such other party the rights and benefits to be
provided under this Agreement and the other Operative Documents.
26
IN WITNESS WHEREOF, the parties hereto have caused this Participation
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the date first above written.
AMERICAN AIRLINES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
Corporate Finance & Banking
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Pass Through Trustee under each of the
Pass Through Trust Agreements
By: /s/ Alison ▇.▇. ▇▇▇▇▇▇
-----------------------------------------
Name: Alison ▇.▇. ▇▇▇▇▇▇
Title: Vice President
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Subordination Agent
By: /s/ Alison ▇.▇. ▇▇▇▇▇▇
-----------------------------------------
Name: Alison ▇.▇. ▇▇▇▇▇▇
Title: Vice President
27
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Loan Trustee
By: /s/ Alison ▇.▇. ▇▇▇▇▇▇
-----------------------------------------
Name: Alison ▇.▇. ▇▇▇▇▇▇
Title: Vice President
U.S. BANK TRUST NATIONAL ASSOCIATION,
in its individual capacity as set forth herein
By: /s/ Alison ▇.▇. ▇▇▇▇▇▇
-----------------------------------------
Name: Alison ▇.▇. ▇▇▇▇▇▇
Title: Vice President
28
SCHEDULE I to
PARTICIPATION AGREEMENT
CERTAIN TERMS
Aircraft Model: 737-823
U.S. Registration Number: N961AN
Manufacturer's Serial Number: 30092
Purchase Agreement: "Purchase Agreement" means the Purchase
Agreement No. 1977, dated October 31, 1997,
between the Manufacturer and the Company, as
the same may be amended, supplemented or
otherwise modified from time to time in
accordance with its terms.
Warranty Rights: "Warranty Rights" means all right and interest
of the Company in, to and under Parts 1, 2, 3,
4 and 6 of the Product Assurance Document (as
defined in the Purchase Agreement), but only
to the extent the same relate to continuing
rights of the Company in respect of any
warranty or indemnity, express or implied,
pursuant to the Product Assurance Document
with respect to the Airframe, it being
understood that the Warranty Rights exclude
any and all other right, title and interest of
the Company in, to and under the Purchase
Agreement and that the Warranty Rights are
subject to the terms of the Manufacturer's
Consent.
ADDRESSES FOR NOTICES AND ACCOUNT DETAILS
THE COMPANY: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
American Airlines, Inc. ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: TreasurerTelex: 4630158
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
U.S. BANK: U.S. Bank Trust National Association
U.S. Bank Trust National ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇. EX-CT-SS Hartford,
Association Connecticut 06103
Attention: Corporate Trust
Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
U.S. Bank National Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇-▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Department
Ref.: American Airlines 2003-1 EETC
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
2
LOAN TRUSTEE: U.S. Bank Trust National Association
U.S. Bank Trust National ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇. EX-CT-SS
Association ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
U.S. Bank National Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇-▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Department
Ref.: American Airlines 2003-1 EETC
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
PASS THROUGH TRUSTEE: U.S. Bank Trust National Association
U.S. Bank Trust National ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇. EX-CT-SS
Association ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
U.S. Bank National Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇-▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Department
Ref.: American Airlines 2003-1 EETC
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
3
SUBORDINATION AGENT: U.S. Bank National Association
U.S. Bank Trust National ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇. EX-CT-SS
Association ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
U.S. Bank National Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇-▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Department
Ref.: American Airlines 2003-1 EETC
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
POLICY PROVIDER: Ambac Assurance Corporation
Ambac Assurance Corporation ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Surveillance
Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
4
SCHEDULE II to
PARTICIPATION AGREEMENT
EQUIPMENT NOTES,
PURCHASERS AND ORIGINAL PRINCIPAL AMOUNTS
Description of Original
Purchaser Equipment Notes Maturity Interest Rate Principal Amount
---------------------------------------------------------------------------------------------------------
American Airlines Pass Series 2003-1G July 9, 3.857% $ 20,264,620.17
Through Trust 2003-1G Equipment Note 2010
EN-2003-1G-001
---------------------------------------------------------------------------------------------------------
American Airlines Pass Series 2003-1C July 9, 8% $ 7,599,182.86
Through Trust 2003-1C Equipment Note 2010
EN-2003-1C-001
---------------------------------------------------------------------------------------------------------
American Airlines Pass Series 2003-1D July 9, 12% $ 2,533,087.47
Through Trust 2003-1D Equipment Note 2010
EN-2003-1D-001
---------------------------------------------------------------------------------------------------------
SCHEDULE III to
PARTICIPATION AGREEMENT
TRUST SUPPLEMENTS
Trust Supplement No. 2003-1G, dated as of July 8, 2003, between the
Company and the Pass Through Trustee in respect of American Airlines Pass
Through Trust 2003-1G.
Trust Supplement No. 2003-1C, dated as of July 8, 2003, between the
Company and the Pass Through Trustee in respect of American Airlines Pass
Through Trust 2003-1C.
Trust Supplement No. 2003-1D, dated as of July 8, 2003, between the
Company and the Pass Through Trustee in respect of American Airlines Pass
Through Trust 2003-1D.
EXHIBIT A to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
COUNSEL FOR THE COMPANY
EXHIBIT B to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
SPECIAL COUNSEL FOR THE LOAN TRUSTEE, THE SUBORDINATION AGENT
AND U.S. BANK
EXHIBIT C to
PARTICIPATION AGREEMENT
FORM OF OPINION OF SPECIAL FAA COUNSEL
EXHIBIT D to
PARTICIPATION AGREEMENT
FORM OF MANUFACTURER'S CONSENT
EXHIBIT E-1 to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
SPECIAL COUNSEL FOR THE PASS THROUGH TRUSTEES
EXHIBIT E-2 to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
SPECIAL DELAWARE COUNSEL FOR
THE PASS THROUGH TRUSTEES
N961AN
Annex A to
Participation Agreement and
Indenture and Security Agreement
DEFINITIONS
"Agreement" and "Participation Agreement" mean that certain
Participation Agreement (N961AN), dated on or before the Closing Date, among the
Company, U.S. Bank, the Pass Through Trustee under each Pass Through Trust
Agreement, the Subordination Agent and the Loan Trustee, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
its terms.
"Aircraft" means the Airframe (or any Replacement Airframe substituted
therefore pursuant to Section 7.05 of the Indenture) together with the two
Engines described in the Indenture Supplement originally executed and delivered
under the Indenture (or any Replacement Engine that may from time to time be
substituted for any of such Engines pursuant to Section 7.04 or Section 7.05 of
the Indenture), whether or not any of such initial or substituted Engines may
from time to time be installed on such Airframe or installed on any other
airframe or on any other aircraft. The term "Aircraft" shall include any
Replacement Aircraft.
"Airframe" means (a) the Boeing aircraft further described in Annex A
to the Indenture Supplement (except (i) the Engines or engines from time to time
installed thereon and any and all Parts related to such Engine or engines and
(ii) items installed or incorporated in or attached to such aircraft from time
to time that are excluded from the definition of Parts (except Engines or
engines)) originally executed and delivered under the Indenture and (b) any and
all related Parts. The term "Airframe" shall include any Replacement Airframe
that may from time to time be substituted for the Airframe pursuant to Section
7.05 of the Indenture. At such time as the Replacement Airframe shall be so
substituted and the Airframe for which such substitution is made shall be
released from the Lien of the Indenture, such replaced Airframe shall cease to
be an Airframe under the Indenture.
"American Entity" has the meaning specified in Section 1.01 of the
Policy Provider Agreement.
"American New Series D Equipment Notes" means any New Series D
Equipment Notes that are purchased by a New Trust with proceeds of New Class D
Certificates (as defined in Exhibit A to the Intercreditor Agreement) that are
sold to a Person affiliated with the Company.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 United
States Code Sections 101 et seq., as amended, or any successor statutes thereto.
"Basic Pass Through Trust Agreement" means that certain Pass Through
Trust Agreement, dated as of March 21, 2002, between the Company and U.S. Bank
(as successor to State Street Bank and Trust Company of Connecticut, National
Association), as the same may be amended, supplemented or otherwise modified
from time to time in accordance with its terms (but does not include any Trust
Supplement).
"Bills of Sale" means the FAA ▇▇▇▇ of Sale and the Warranty ▇▇▇▇ of
Sale.
"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 the city and state in which the Loan Trustee maintains
its Corporate Trust Office or receives and disburses funds.
"Certificated Air Carrier" means any Citizen of the United States
holding an air carrier operating certificate issued by the Secretary of
Transportation pursuant to Chapter 447 of Title 49 of the United States Code for
aircraft capable of carrying ten or more individuals or 6,000 pounds or more of
cargo or that otherwise is certified or registered to the extent required to
fall within the purview of Section 1110.
"Citizen of the United States" has the meaning specified for such term
in Section 40102(a)(15) of Title 49 of the United States Code or any similar
legislation of the United States enacted in substitution or replacement
therefor.
"Claim" has the meaning specified in Section 4.02(a) of the
Participation Agreement.
"Class C Liquidity Facility" has the meaning specified in the
Intercreditor Agreement.
"Class C Liquidity Provider" has the meaning specified in the
Intercreditor Agreement.
"Class E Trust" has the meaning specified in the Intercreditor
Agreement.
"Class G Liquidity Facility" has the meaning specified in the
Intercreditor Agreement.
"Class G Liquidity Provider" has the meaning specified in the
Intercreditor Agreement.
2
"Closing" has the meaning specified in Section 2.03 of the
Participation Agreement.
"Closing Date" means the date set forth on the cover page of the
Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning specified in the granting clause of the
Indenture.
"Company" means American Airlines, Inc., and its successors and
permitted assigns.
"Compulsory Acquisition" means requisition of title or other compulsory
acquisition, capture, seizure, deprivation, confiscation or detention for any
reason of the Aircraft by any government that results in the loss of title or
use of the Aircraft by the Company (or any Permitted Lessee) for a period in
excess of 180 days, but shall exclude requisition for use or hire not involving
requisition of title.
"Confidential Information" has the meaning specified in Section 10.16
of the Indenture.
"Controlling Party" has the meaning specified in Section 2.06 of the
Intercreditor Agreement.
"Corporate Trust Office" means the Corporate Trust Division of the Loan
Trustee located at U.S. Bank National Association, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Square, Hartford, Connecticut, 06103, Attention: Corporate Trust Division, or
such other office at which the Loan Trustee's corporate trust business shall be
administered that the Loan Trustee shall have specified by notice in writing to
the Company.
"CRAF Program" means the Civil Reserve Air Fleet Program authorized
under 10 U.S.C. Section 9511 et seq. or any similar or substitute program under
the laws of the United States.
"Debt Rate" means (i) with respect to the Series G Equipment Notes, the
Original Series C Equipment Notes and the Original Series D Equipment Notes, the
rate per annum specified as the "Debt Rate" in Schedule I to the Indenture, (ii)
with respect to any New Series C Equipment Notes, New Series D Equipment Notes
and Second New Series D Equipment Notes, the rate per annum specified as such in
an Indenture Refunding Amendment applicable to such Series and (iii) with
respect to any Series E Equipment Notes, the rate per annum specified in an
amendment to the Indenture at the time of issuance of such Series E Equipment
Notes.
3
"Department of Transportation" means the United States Department of
Transportation and any agency or instrumentality of the United States government
succeeding to its functions.
"Direction" has the meaning specified in Section 2.16 of the Indenture.
"Dollars" and "$" mean the lawful currency of the United States.
"Engine" means (a) each of the two engines listed by manufacturer's
serial number and further described in Annex A to the Indenture Supplement
originally executed and delivered under the Indenture, whether or not from time
to time installed on the Airframe or installed on any other airframe or on any
other aircraft and (b) any Replacement Engine that may from time to time be
substituted for an Engine pursuant to Section 7.04 or 7.05 of the Indenture;
together in each case with any and all related Parts. At such time as a
Replacement Engine shall be so substituted and the Engine for which substitution
is made shall be released from the Lien of the Indenture, such replaced Engine
shall cease to be an Engine under the Indenture.
"Equipment Note" means and includes any Series G Equipment Note,
Original Series C Equipment Note, Original Series D Equipment Note, Series E
Equipment Note, New Series C Equipment Note, New Series D Equipment Note or
Second New Series D Equipment Note, and any Equipment Note issued in exchange
therefor or replacement thereof pursuant to Section 2.07 or 2.08 of the
Indenture.
"Equipment Note Register" has the meaning specified in Section 2.07 of
the Indenture.
"Equipment Note Registrar" has the meaning specified in Section 2.07 of
the Indenture.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA as in effect at the date of
the Participation Agreement and any subsequent provisions of ERISA amendatory
thereof, supplemental thereto or substituted therefor.
"Event of Default" has the meaning specified in Section 4.01 of the
Indenture.
"Event of Loss" means, with respect to the Aircraft, Airframe or any
Engine, any of the following events with respect to such property:
(a) the loss of such property or of the use thereof due to
destruction, damage beyond repair or rendition of such property permanently
unfit for normal use for any reason whatsoever;
4
(b) any damage to such property which results in an insurance
settlement with respect to such property on the basis of a total loss, a
compromised total loss or a constructive total loss;
(c) the theft, hijacking or disappearance of such property for a
period in excess of 180 days;
(d) the requisition for use of such property by any government
(other than a requisition for use by a Government or the government of the
country of registry of the Aircraft) that shall have resulted in the loss of
possession of such property by the Company (or any Permitted Lessee) for a
period in excess of 12 consecutive months;
(e) the operation or location of the Aircraft, while under
requisition for use by any government, in any area excluded from coverage by any
insurance policy in effect with respect to the Aircraft required by the terms of
Section 7.06 of the Indenture, unless the Company shall have obtained indemnity
or insurance in lieu thereof from such government;
(f) any Compulsory Acquisition;
(g) as a result of any law, rule, regulation, order or other
action by the FAA or other government of the country of registry, the use of the
Aircraft or Airframe in the normal business of air transportation shall have
been prohibited by virtue of a condition affecting all aircraft of the same type
for a period of 18 consecutive months, unless the Company shall be diligently
carrying forward all steps that are necessary or desirable to permit the normal
use of the Aircraft or Airframe or, in any event, if such use shall have been
prohibited for a period of three consecutive years; and
(h) with respect to an Engine only, any divestiture of title to or
interest in an Engine or any event with respect to an Engine that is deemed to
be an Event of Loss with respect to such Engine pursuant to Section 7.02(a)(vii)
of the Indenture.
An Event of Loss with respect to the Aircraft shall be deemed to have
occurred if an Event of Loss occurs with respect to the Airframe unless the
Company elects to substitute a Replacement Airframe pursuant to Section
7.05(a)(i) of the Indenture.
"Excess Amount" means the amount that the Company elects to apply (or
that the Loan Trustee is required to apply), pursuant to Section 2.10(g) of the
Indenture, to the redemption of Series G Equipment Notes under Section 2.10(b),
2.10(c) or 2.10(e) of the Indenture.
"Excess Proceeds" means (i) with respect to any Related Aircraft with
respect to which an Event of Loss has occurred, the difference between (A) the
total insurance proceeds received by the Company pursuant to the insurance
policies maintained
5
pursuant to Section 7.06(b) of the Indenture or pursuant to requisition or
indemnity payments described in Section 7.05(c) of the Indenture, and (B) the
total amount required to be applied by the Company under Section 2.10(a) of the
Related Indenture to the redemption of the Related Equipment Notes in respect of
which the Event of Loss occurred, and (ii) with respect to the sale of any
Related Aircraft, the positive difference (if any) between (x) the total
proceeds realized in the sale of such Related Aircraft and (y) the total amount
required to be applied by the Company to the redemption of the Related Equipment
Notes under Section 2.10(d) of the Related Indenture related to such Related
Aircraft.
"FAA" means the United States Federal Aviation Administration and any
agency or instrumentality of the United States government succeeding to its
functions.
"FAA ▇▇▇▇ of Sale" means the ▇▇▇▇ of sale for the Aircraft on AC Form
8050-2, executed by the Manufacturer in favor of the Company and recorded with
the FAA.
"Federal Funds 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 such day (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 U.S. Bank from three
Federal funds brokers of recognized standing selected by it.
"Final Payment Date" means July 9, 2010, or if such date is not a
Business Day, the Final Payment Date shall be the next succeeding Business Day.
"Government" means the government of any of Canada, France, Germany,
Japan, The Netherlands, Sweden, Switzerland, the United Kingdom or the United
States and any instrumentality or agency thereof.
"Indemnitee" has the meaning specified in Section 4.02(b) of the
Participation Agreement.
"Indenture" means that certain Indenture and Security Agreement
(N961AN), dated as of the Closing Date, between the Company and the Loan
Trustee, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with its terms, including by an Indenture Refunding
Amendment or an Indenture Supplement.
"Indenture Indemnitee" means (i) the Loan Trustee, (ii) U.S. Bank,
(iii) each separate or additional trustee appointed pursuant to Section 8.02 of
the Indenture, (iv) so long as it holds any Equipment Note as agent and trustee
of any Pass Through Trustee,
6
the Subordination Agent, (v) each Liquidity Provider, (vi) the Policy Provider
and its affiliates, (vii) so long as it is the holder of any Equipment Notes,
each Pass Through Trustee, (viii) each Related Noteholder and (ix) each of the
respective directors, officers, employees, agents and servants of each of the
Persons identified in clauses (i), (v), (vi) and (viii). No holder of a Pass
Through Certificate in its capacity as such shall be an Indenture Indemnitee.
"Indenture Refunding Amendment" means an amendment to the Indenture
entered into for purposes of effecting a Refunding.
"Indenture Supplement" means a supplement to the Indenture,
substantially in the form of Exhibit A to the Indenture, which shall
particularly describe the Aircraft, and any Replacement Airframe and/or
Replacement Engine included in the property subject to the Lien of the
Indenture.
"Intercreditor Agreement" means that certain Intercreditor Agreement,
dated as of the Closing Date, among the Pass Through Trustees, the Class G
Liquidity Provider, the Policy Provider and the Subordination Agent, as the same
may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
"Interests" has the meaning specified in Section 7.06(a) of the
Indenture.
"Lease" means any lease permitted by the terms of Section 7.02(a) of
the Indenture.
"Lien" means any mortgage, pledge, lien, charge, claim, encumbrance,
lease, sublease, sub-sublease or security interest.
"Liquidity Facility" has the meaning specified in the Intercreditor
Agreement.
"Liquidity Provider" has the meaning specified in the Intercreditor
Agreement.
"Loan Amount" has the meaning specified in Section 7.06(b) of the
Indenture.
"Loan Trustee" has the meaning specified in the introductory paragraph
of the Indenture.
"Loan Trustee Liens" means any Lien attributable to U.S. Bank or the
Loan Trustee with respect to the Aircraft, any interest therein or any other
portion of the Collateral arising as a result of (i) claims against U.S. Bank or
the Loan Trustee not related to its interest in the Aircraft or the
administration of the Collateral pursuant to the Indenture, (ii) acts of U.S.
Bank or the Loan Trustee not permitted by, or the failure of U.S. Bank or the
Loan Trustee to take any action required by, the Operative Documents or the Pass
Through Documents, (iii) claims against U.S. Bank or the Loan Trustee
7
relating to Taxes or Claims that are excluded from the indemnification provided
by Section 4.02 of the Participation Agreement pursuant to said Section 4.02 or
(iv) claims against U.S. Bank or the Loan Trustee arising out of the transfer by
any such party of all or any portion of its interest in the Aircraft, the
Collateral, the Operative Documents or the Pass Through Documents, except while
an Event of Default is continuing and prior to the time that the Loan Trustee
has received all amounts due to it pursuant to the Indenture.
"Loss Payment Date" has the meaning specified in Section 7.05(a) of the
Indenture.
"Majority in Interest of Noteholders" means, as of a particular date of
determination and subject to Section 2.16 of the Indenture, the holders of at
least a majority in aggregate unpaid principal amount of all Equipment Notes
outstanding as of such date (excluding any Equipment Notes held by the Company,
any affiliate thereof or a Pass Through Trust the pass through certificates
issued by which are owned, directly or indirectly, by the Company, unless all
Equipment Notes are held by the Company, any affiliate thereof or a Pass Through
Trust the pass through certificates issued by which are owned, directly or
indirectly, by the Company).
"Make-Whole Amount" means: (a) with respect to any Original Series C
Equipment Note, Original Series D Equipment Note or Series G Equipment Note, the
amount (as determined by an investment bank of national standing selected by the
Company), if any, by which (i) the present value of the remaining scheduled
payments of principal and interest from the redemption date to maturity of such
Equipment Note computed by discounting each such payment on a semiannual basis
from its respective Payment Date (assuming a 360-day year of twelve 30-day
months) using a discount rate equal to the Treasury Yield exceeds (ii) the
outstanding principal amount of such Equipment Note plus accrued but unpaid
interest thereon to the date of redemption; (b) with respect to any New Series C
Equipment Note, New Series D Equipment Note or Second New Series D Equipment
Note, the amount computed in the manner set forth in an Indenture Refunding
Amendment applicable to such Series; and (c) with respect to any Series E
Equipment Note, the amount computed in the manner set forth in an amendment to
the Indenture at the time of issuance of the Series E Equipment Notes. For
purposes of determining the Make-Whole Amount, "Treasury Yield" means, at the
time of determination, the interest rate (expressed as a semi-annual equivalent
and as a decimal and, in the case of United States Treasury bills, converted to
a bond equivalent yield) determined to be the per annum rate equal to the
semi-annual yield to maturity for United States Treasury securities maturing on
the Average Life Date and trading in the public securities market either as
determined by interpolation between the most recent weekly average yield to
maturity for two series of United States Treasury securities trading in the
public securities markets, (A) one maturing as close as possible to, but earlier
than, the Average Life Date and (B) the other maturing as close as possible to,
but
8
later than, the Average Life Date, in each case as published in the most recent
H.15(519) or, if a weekly average yield to maturity for United States Treasury
securities maturing on the Average Life Date is reported on the most recent
H.15(519), such weekly average yield to maturity as published in such H.15(519).
"H.15(519)" means the weekly statistical release designated as such, or any
successor publication, published by the Board of Governors of the Federal
Reserve System. The date of determination of a Make-Whole Amount shall be the
third Business Day prior to the applicable redemption date or, in the case of
any redemption of Equipment Notes as a result of an Event of Loss with respect
to the Aircraft or any Related Aircraft, the 20th day prior to the applicable
redemption date (or if such day is not a Business Day, the next succeeding
Business Day), and the "most recent H.15(519)" means the H.15(519) published
prior to the close of business on the third Business Day prior to the applicable
redemption date or, in the case of any redemption of Equipment Notes as a result
of an Event of Loss with respect to the Aircraft or any Related Aircraft, the
20th day prior to the applicable redemption date (or if such day is not a
Business Day, the next succeeding Business Day). "Average Life Date" means, for
each Equipment Note to be redeemed, the date which follows the redemption date
by a period equal to the Remaining Weighted Average Life at the redemption date
of such Equipment Note. "Remaining Weighted Average Life" of an Equipment Note,
at the redemption date of such Equipment Note, means the number of days equal to
the quotient obtained by dividing: (i) the sum of the products obtained by
multiplying (A) the amount of each then remaining installment of principal,
including the payment due on the maturity date of such Equipment Note, by (B)
the number of days from and including the redemption date to but excluding the
scheduled payment date of such principal installment by (ii) the then unpaid
principal amount of such Equipment Note.
"Manufacturer" means The Boeing Company, a Delaware corporation, and
its successors and assigns.
"Manufacturer's Consent" means the Manufacturer's Consent and Agreement
to Assignment of Warranties, dated as of the Closing Date, substantially in the
form of Exhibit E to the Participation Agreement.
"New Series" has the meaning specified in Exhibit A to the
Intercreditor Agreement.
"New Series C Equipment Notes" means Equipment Notes that are issued as
a New Series in connection with a Refunding of the Original Series C Equipment
Notes, in the original principal amount and maturities and bearing interest as
specified in Schedule I to the applicable Indenture Refunding Amendment under
the heading "Series C Equipment Notes".
9
"New Series D Equipment Notes" means Equipment Notes that are issued as
a New Series in connection with a Refunding of the Original Series D Equipment
Notes, in the original principal amount and maturities and bearing interest as
specified in Schedule I to the applicable Indenture Refunding Amendment under
the heading "Series D Equipment Notes".
"New Trust" has the meaning specified in Exhibit A to the Intercreditor
Agreement.
"Noteholder" means any Person in whose name an Equipment Note is
registered on the Equipment Note Register (including, for so long as it is the
registered holder of any Equipment Notes, the Subordination Agent on behalf of
the Pass Through Trustees pursuant to the provisions of the Intercreditor
Agreement).
"Noteholder Liens" means any Lien attributable to any Noteholder on or
against the Aircraft, any interest therein or any portion of the Collateral,
arising out of any claim against such Noteholder that is not related to the
Operative Documents or Pass Through Documents, or out of any act or omission of
such Noteholder that is not related to the transactions contemplated by, or that
constitutes a breach by such Noteholder of its obligations under, the Operative
Documents or the Pass Through Documents.
"Operative Documents" means, collectively, the Participation Agreement,
the Indenture, each Indenture Supplement, the Manufacturer's Consent and the
Equipment Notes.
"Original Series C Equipment Notes" means Equipment Notes issued on the
Closing Date and designated as "Series C Equipment Notes" under the Indenture,
in the original principal amount and maturities and bearing interest as
specified in Schedule I to the Indenture under the heading "Series C Equipment
Notes."
"Original Series D Equipment Notes" means Equipment Notes issued on the
Closing Date and designated as "Series D Equipment Notes" under the Indenture,
in the original principal amount and maturities and bearing interest as
specified in Schedule I to the Indenture under the heading "Series D Equipment
Notes."
"Other Party Liens" means any Lien attributable to the Pass Through
Trustee (other than in its capacity as Noteholder), the Subordination Agent
(other than in its capacity as Noteholder), any Liquidity Provider or the Policy
Provider on or against the Aircraft, any interest therein, or any portion of the
Collateral arising out of any claim against such party that is not related to
the Operative Documents or Pass Through Documents, or out of any act or omission
of such party that is not related to the transactions contemplated by, or that
constitutes a breach by such party of its obligations under, the Operative
Documents or the Pass Through Documents.
10
"Participation Agreement" has the meaning set forth under the
definition of "Agreement".
"Parts" means any and all appliances, parts, instruments,
appurtenances, accessories, furnishings and other equipment of whatever nature
(other than (a) complete Engines or engines, (b) any items leased by the Company
or any Permitted Lessee, (c) cargo containers and (d) components or systems
installed on or affixed to the Airframe that are used to provide individual
telecommunications or electronic entertainment to passengers aboard the
Aircraft) so long as the same shall be incorporated or installed in or attached
to the Airframe or any Engine or so long as the same shall be subject to the
Lien of the Indenture in accordance with the terms of Section 7.04 thereof after
removal from the Airframe or any such Engine.
"Pass Through Certificates" means the pass through certificates issued
by the Pass Through Trustees.
"Pass Through Documents" means the Pass Through Trust Agreements, the
Intercreditor Agreement, the Liquidity Facilities, the Policy Provider Agreement
and the Policy.
"Pass Through Trust" means each of the separate grantor trusts then
holding Equipment Notes, which grantor trusts have been or will be created
pursuant to the Pass Through Trust Agreements to facilitate certain of the
transactions contemplated by the Operative Documents.
"Pass Through Trust Agreement" means each of the separate Trust
Supplements relating to the Pass Through Trusts, together in each case with the
Basic Pass Through Trust Agreement, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
"Pass Through Trustee" has the meaning specified in the introductory
paragraph to the Participation Agreement and also includes any New Trustee (as
defined in Exhibit A to the Intercreditor Agreement).
"Pass Through Trustees" means, collectively, the Pass Through Trustees
under each Pass Through Trust Agreement.
"Past Due Rate" means, with respect to a particular Series, a rate per
annum equal to the then applicable Debt Rate plus 1% and, in any case other than
with respect to a particular Series, the Debt Rate for the Series G Equipment
Notes plus 1%.
"Payment Date" means, for any Equipment Note, each January 9 and July 9
commencing with January 9, 2004 (or if any such day is not a Business Day, the
immediately succeeding Business Day).
11
"Payment Default" means the occurrence of an event that would give rise
to an Event of Default under Section 4.01(a) of the Indenture upon the giving of
notice or the passing of time or both.
"Permitted Investments" means each of (a) direct obligations of the
United States and agencies thereof; (b) obligations fully guaranteed by the
United States; (c) certificates of deposit issued by, or bankers' acceptances
of, or time deposits with, any bank, trust company or national banking
association incorporated or doing business under the laws of the United States
or one of the states thereof having combined capital and surplus and retained
earnings of at least $100,000,000 and having a rating of A, its equivalent or
better by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") or Standard & Poor's
Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P") (or, if
neither such organization shall rate such institution at any time, by any
nationally recognized rating organization in the United States); (d) commercial
paper of any holding company of a bank, trust company or national banking
association described in clause (c); (e) commercial paper of companies having a
rating assigned to such commercial paper by either Moody's or S&P (or, if
neither such organization shall rate such commercial paper at any time, by any
nationally recognized rating organization in the United States) equal to either
of the two highest ratings assigned by such organization; (f) Dollar-denominated
certificates of deposit issued by, or time deposits with, the European
subsidiaries of (i) any bank, trust company or national banking association
described in clause (c), or (ii) any other bank or financial institution
described in clause (h) or (i) below; (g) United States-issued Yankee
certificates of deposit issued by, or bankers' acceptances of, or commercial
paper issued by, any bank having combined capital and surplus and retained
earnings of at least $100,000,000 and headquartered in Canada, Japan, the United
Kingdom, France, Germany, Switzerland or The Netherlands and having a rating of
A, its equivalent or better by Moody's or S&P (or, if neither such organization
shall rate such institution at any time, by any nationally recognized rating
organization in the United States); (h) Dollar-denominated time deposits with
any Canadian bank having a combined capital and surplus and retained earnings of
at least $100,000,000 and having a rating of A, its equivalent or better by
Moody's or S&P (or, if neither such organization shall rate such institution at
any time, by any nationally recognized rating organization in the United
States); (i) Canadian Treasury Bills fully hedged to Dollars; (j) repurchase
agreements with any financial institution having combined capital and surplus
and retained earnings of at least $100,000,000 collateralized by transfer of
possession of any of the obligations described in clauses (a) through (i) above;
(k) bonds, notes or other obligations of any state of the United States, or any
political subdivision of any state, or any agencies or other instrumentalities
of any such state, including, but not limited to, industrial development bonds,
pollution control revenue bonds, public power bonds, housing bonds, other
revenue bonds or any general obligation bonds, provided that, at the time of
their purchase, such obligations are rated A, its equivalent or better by
Moody's or S&P (or, if neither such organization shall rate such obligations at
any time, by any nationally recognized rating organization in the United
States); (l) bonds or other debt
12
instruments of any company, if such bonds or other debt instruments, at the time
of their purchase, are rated A, its equivalent or better by ▇▇▇▇▇'▇ or S&P (or,
if neither such organization shall rate such obligations at such time, by any
nationally recognized rating organization in the United States); (m) mortgage
backed securities (i) guaranteed by the Federal National Mortgage Association,
the Federal Home Loan Mortgage Corporation or the Government National Mortgage
Association or rated AAA, its equivalent or better by ▇▇▇▇▇'▇ or S&P (or, if
neither such organization shall rate such obligations at any time, by any
nationally recognized rating organization in the United States) or, if unrated,
deemed to be of a comparable quality by the Loan Trustee and (ii) having an
average life not to exceed one year as determined by standard industry pricing
practices then in effect; (n) asset-backed securities rated A, its equivalent or
better by ▇▇▇▇▇'▇ or S&P (or, if neither such organization shall rate such
obligations at any time, by any nationally recognized rating organization in the
United States) or, if unrated, deemed to be of a comparable quality by the Loan
Trustee; and (o) such other investments approved in writing by the Loan Trustee;
provided that, the instruments described in the foregoing clauses shall have a
maturity no later than the earliest date when such investments may be required
for distribution. Any of the investments described herein may be made through or
with, as applicable, the bank acting as Pass Through Trustee or Loan Trustee or
any of their affiliates.
"Permitted Lessee" means any Person to whom the Company is permitted to
lease the Airframe or any Engine pursuant to Section 7.02(a) of the Indenture.
"Permitted Lien" has the meaning specified in Section 7.01 of the
Indenture.
"Person" means any person, including any individual, corporation,
limited liability company, partnership, joint venture, association, joint-stock
company, trust, trustee, unincorporated organization or government or any agency
or political subdivision thereof.
"Policy" means the Certificate Guaranty Insurance Policy No. AB0686BE,
issued as of the Closing Date by the Policy Provider in favor of the
Subordination Agent, for the benefit of the Class G Certificateholders (as
defined in the Intercreditor Agreement), as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"Policy Expenses" shall have the meaning specified in the Intercreditor
Agreement.
"Policy Provider" means Ambac Assurance Corporation, a
Wisconsin-domiciled stock insurance corporation.
13
"Policy Provider Agreement" means the Insurance and Indemnity
Agreement, dated as of the Closing Date, among the Company, the Subordination
Agent, the Class G Trustee and the Policy Provider, including the related Policy
Provider Fee Letter referred to therein, as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"Policy Provider Amounts" means all Policy Provider Obligations, Policy
Provider Interest Drawing Amounts, Policy Expenses, Policy Provider Interest
Amounts and Excess Reimbursement Obligations.
"Policy Provider Indemnity and Inspection Agreement" means the Policy
Provider Indemnity and Inspection Agreement (N961AN), dated as of the Closing
Date, between the Company and the Policy Provider.
"Policy Provider Interest Amounts" shall have the meaning specified in
the Intercreditor Agreement.
"Policy Provider Interest Drawing Amount" has the meaning specified in
the Intercreditor Agreement.
"Policy Provider Obligations" shall have the meaning specified in the
Intercreditor Agreement.
"Purchase Agreement" means the Purchase Agreement as described in
Schedule I to the Participation Agreement.
"Rating Agencies" has the meaning specified in the Intercreditor
Agreement.
"Ratings Confirmation" has the meaning specified in the Intercreditor
Agreement.
"Refunding" has the meaning specified in Exhibit A to the
Interecreditor Agreement.
"Related Aircraft" means each of the aircraft subject to a Related
Indenture, including any Replacement Aircraft substituted therefor pursuant to
Section 7.05 of any Related Indenture.
"Related Equipment Note" means a Related Series G Equipment Note,
Related Series C Equipment Note or Related Series D Equipment Note.
"Related Indemnitee Group" has the meaning specified in Section 4.02(b)
of the Participation Agreement.
14
"Related Indenture Indemnitees" means the "Indenture Indemnitees" (as
defined in each Related Indenture).
"Related Indentures" means each of the indentures (other than the
Indenture) under which equipment notes have been issued and purchased by the
Pass Through Trustees (whether before or after the date of the Indenture).
"Related Loan Trustee" means the "Loan Trustee" (as defined in each
Related Indenture).
"Related Noteholder" means a registered holder of a Related Equipment
Note.
"Related Operative Documents" means the "Operative Documents" (as
defined in each Related Indenture).
"Related Participation Agreement" means the "Participation Agreement"
(as defined in each Related Indenture).
"Related Policy Provider Indemnity and Inspection Agreement" means the
"Policy Provider Indemnity and Inspection Agreement" (as defined in each Related
Indenture).
"Related Secured Obligations" means, the "Secured Obligations" (as
defined in each Related Indenture).
"Related Series C Equipment Note" means a "Series C Equipment Note" (as
defined in each Related Indenture).
"Related Series D Equipment Note" means a "Series D Equipment Note" (as
defined in each Related Indenture).
"Related Series G Equipment Note" means a "Series G Equipment Note" (as
defined in each Related Indenture).
"Related Supplemental Agreement" means the "Supplemental Agreement" as
defined in each Related Indenture).
"Replacement Aircraft" means the Aircraft of which a Replacement
Airframe is part.
"Replacement Airframe" means a Boeing aircraft of the model further
described in Annex A to the Indenture Supplement dated the Closing Date or an
improved model of the Manufacturer (except (a) Engines or engines from time to
time installed thereon and any and all Parts related to such Engine or engines
and (b) items excluded from the
15
definition of Parts (except Engines or engines)), that shall have been made
subject to the Lien of the Indenture pursuant to Section 7.05 thereof, together
with all Parts relating to such aircraft.
"Replacement Engine" means an engine of the make and model specified in
Annex A to the Indenture Supplement dated the Closing Date (or an engine of the
same or another manufacturer of a comparable or an improved model and suitable
for installation and use on the Airframe with the other Engine (or any other
Replacement Engine being substituted simultaneously therewith)) that shall have
been made subject to the Lien of the Indenture pursuant to Section 7.04 or
Section 7.05 thereof, together with all Parts relating to such engine.
"Responsible Officer" means, with respect to the Company, its Chairman
of the Board, its President, any Senior Vice President, the Chief Financial
Officer, any Vice President, the Treasurer, the Secretary or any other
management employee (a) whose power to take the action in question has been
authorized, directly or indirectly, by the Board of Directors of the Company,
(b) working directly under the supervision of its Chairman of the Board, its
President, any Senior Vice President, the Chief Financial Officer, any Vice
President, the Treasurer or the Secretary and (c) whose responsibilities include
the administration of the transactions and agreements contemplated by the
Participation Agreement and the Indenture.
"Second New Series D Equipment Notes" means Equipment Notes that are
issued as a New Series in connection with a Refunding of any American New Series
D Equipment Notes, in the original principal amount and maturities and bearing
interest as specified in Schedule I to the applicable Indenture Refunding
Amendment.
"Section 1110" means Section 1110 of the Bankruptcy Code, as in effect
on the Closing Date or any successor or analogous section of the federal
bankruptcy law in effect from time to time.
"Secured Obligations" has the meaning specified in the Granting Clause
of the Indenture.
"Series" means any series of Equipment Notes, including the Series G
Equipment Notes, the Series C Equipment Notes, the Series D Equipment Notes or
the Series E Equipment Notes.
"Series C Equipment Notes" means the Original Series C Equipment Notes
or, following a Refunding of the Original Series C Equipment Notes, New Series C
Equipment Notes.
"Series D Equipment Notes" means (a) the Original Series D Equipment
Notes, or (b) following a Refunding of the Original Series D Equipment Notes,
the New Series D
16
Equipment Notes, or (c) following a Refunding of the American New Series D
Equipment Notes, the Second New Series D Equipment Notes.
"Series E Equipment Notes" means Equipment Notes, if any, issued and
designated as "Series E Equipment Notes" under the Indenture, in the original
principal amount and maturities and bearing interest as specified in an
amendment to the Indenture at the time of issuance of the Series E Equipment
Notes.
"Series G Equipment Notes" means Equipment Notes issued and designated
as "Series G Equipment Notes" under the Indenture, in the original principal
amount and maturities and bearing interest as specified in Schedule I to the
Indenture under the heading "Series G Equipment Notes."
"Specified Person" has the meaning specified in Section 7.06(a) of the
Indenture.
"Subordination Agent" has the meaning specified in the introductory
paragraph to the Participation Agreement.
"Supplemental Agreement" means the Supplemental Agreement (N961AN),
dated as of the Closing Date, between the Company and the Policy Provider.
"Tax" and "Taxes" means all governmental fees (including, without
limitation, license, filing and registration fees) and all taxes (including,
without limitation, franchise, excise, stamp, value added, income, gross
receipts, sales, use and property taxes), withholdings, assessments, levies,
imposts, duties or charges, of any nature whatsoever, together with any related
penalties, fines, additions to tax or interest thereon imposed, withheld, levied
or assessed by any country, taxing authority or governmental subdivision thereof
or therein or by any international authority, including any taxes imposed on any
Person as a result of such Person being required to collect and pay over
withholding taxes.
"Transportation Code" means that portion of Title 49 of the United
States Code comprising those provisions formerly referred to as the Federal
Aviation Act of 1958, as amended, or any subsequent legislation that amends,
supplements or supersedes such provisions.
"Trust Supplements" means those agreements supplemental to the Basic
Pass Through Trust Agreement referred to in Schedule II to the Participation
Agreement.
"Underwriting Agreement" means that certain Underwriting Agreement,
dated June 30, 2003, among the Company and the underwriters named therein,
relating to the purchase of the Class G Certificates (as defined in the
Intercreditor Agreement) by such underwriters, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
17
"United States" means the United States of America.
"U.S. Bank" has the meaning specified in the introductory paragraph to
the Participation Agreement.
"U.S. Government Obligations" means securities that are direct
obligations of the United States for the payment of which its full faith and
credit is pledged which are not callable or redeemable, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligations or a specific payment of interest on or
principal of any such U.S. Government Obligations held by such custodian for the
account of the holder of a depository receipt so long as such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligations or the specific payment of interest on or principal
of the U.S. Government Obligations evidenced by such depository receipt.
"Warranty ▇▇▇▇ of Sale" means the warranty (as to title) ▇▇▇▇ of sale
covering the Aircraft, executed by the Manufacturer in favor of the Company and
specifically referring to each Engine, as well as the Airframe, constituting a
part of the Aircraft.
"Warranty Rights" means the Warranty Rights as described in Schedule I
to the Participation Agreement.
18