Exhibit 4(d)(2)
ISDA(R)
International Swaps and Derivatives Association, Inc.
SCHEDULE
to the
MASTER AGREEMENT
dated as of September 24, 2002
between
CREDIT SUISSE FIRST BOSTON and STATE STREET BANK AND TRUST
INTERNATIONAL, COMPANY OF CONNECTICUT,
an unlimited liability company NATIONAL ASSOCIATION,
organized under the laws of a national banking association,
England and Wales in its capacity as
Subordination Agent on behalf
("PARTY A") of the Trustee under the Pass
Through Trust Agreement dated
as of March 21, 2002 between
State Street Bank and Trust
Company of Connecticut,
National Association, and
American Airlines, Inc., as
supplemented by the Trust
Supplement No. 2002-1G dated as
of September 24, 2002
("PARTY B")
PART 1
TERMINATION PROVISIONS
(A) SPECIFIED ENTITY. None.
(B) SPECIFIED TRANSACTION. Specified Transaction will have the
meaning specified in Section 14.
(C) EVENTS OF DEFAULT. The "Events of Default" set forth in Section 5(a) will
not apply to Party B but will apply to Party A (subject to clause (d)
below).
(D) CROSS DEFAULT. The "Cross Default" provision of Section 5(a)(vi)
will not apply.
(E) TERMINATION EVENTS. The "Illegality" provisions of Section
5(b)(i), the "Tax Event" provisions of Section 5(b)(ii), the "Tax
Event Upon Merger" provisions of Section 5(b)(iii) and the "Credit
Event Upon Merger" provisions of Section 5(b)(iv) (as amended
below) will apply to Party A but will not apply to Party B. Party
A shall be the sole Affected Party (under Section 5(b)(i), (ii)
and 5(b)(iv)) and the sole Burdened Party (under Section
5(b)(iii)) with respect to a Termination Event.
(F) CREDIT EVENT UPON MERGER. The "Credit Event Upon Merger"
provisions in Section 5(b)(iv) are hereby amended by: (I) deleting
in the fourth line thereof the words "another entity" and
replacing them with the words "or reorganizes, incorporates,
reincorporates, reconstitutes, or reforms into or as, or receives
all or substantially all of the assets and/or liabilities or
obligations of, another entity or X, such Credit Support Provider,
or such Specified Entity, as the case may be, effects a
recapitalization, liquidating dividend, leveraged buy-out, other
similar highly-leveraged transaction, or stock buy-back or similar
call on equity,"; (II) deleting in the fifth line thereof the
words "the resulting, surviving or transferee" and replacing them
with the words "X, such Credit Support Provider, or such Specified
Entity, as the case may be, or any resulting, surviving,
transferee, reorganized, reconstituted, reformed, or
recapitalized"; and (III) deleting in the seventh line thereof the
words "its successor or transferee" and replacing them with the
words "any resulting, surviving, transferee, reorganized,
reconstituted, reformed, or recapitalized entity".
(G) AUTOMATIC EARLY TERMINATION. The "Automatic Early Termination"
provision of Section 6(a) will not apply.
(H) RIGHT TO TERMINATE FOLLOWING TERMINATION EVENT. Sections
6(b)(ii)-(iv) are deleted in their entirety and replaced by the
following:
"(ii) REPLACEMENT ON TERMINATION EVENT. Upon the occurrence of an
Illegality or Credit Event Upon Merger, Party A shall have the right
within 20 days of the date of such Termination Event, at its own expense,
to arrange for one or more Replacement Above-Cap Liquidity Providers to
enter into and deliver to Party B a Replacement Above-Cap Liquidity
Facility for such Above-Cap Liquidity Facility. If Party A does not
arrange for such replacement and if the Above-Cap Liquidity Facility has
not otherwise been replaced by American Airlines, Inc. (at the expense of
American Airlines, Inc.) in accordance with the terms of Section
3.06(c)(ii) of the Intercreditor Agreement, such 20th day (or if such 20th
day is not a Business Day, the next succeeding Business Day) shall be
deemed to be an "Early Termination Date" and Party A shall make a
termination payment to Party B in accordance with Part 1(j) of this
Schedule. Without limiting the provisions of Part 5(i) of this Schedule,
upon the occurrence of a Tax Event or a Tax Event Upon Merger, Party A
shall have the right (but not the obligation) at any time, to (A) at its
own expense, arrange for one or more Replacement Above-Cap Liquidity
Providers to enter into and deliver to Party B a Replacement Above-Cap
Liquidity Facility or (B) designate an Early Termination Date with respect
to the Transaction evidenced by the Confirmation. For the avoidance of
doubt, Party B shall have no right to designate an Early Termination Date
following the occurrence of any Termination Event.
(I) CALCULATIONS. The "Payment Date" provisions in Section 6(d)(ii)
are deleted in their entirety and replaced by the following:
"The Termination Amount calculated as being due in respect of any Early
Termination Date under Section 6(e) will be payable on such Early
Termination Date."
(J) PAYMENTS ON EARLY TERMINATION. Section 6(e) is deleted in its
entirety and replaced with the following:
"Upon the occurrence or designation of an Early Termination Date with
respect to the Transaction evidenced by the Confirmation, Party A shall
make a termination payment to Party B
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on the Early Termination Date and in an amount equal to the "Termination
Amount" for the Early Termination Date for credit to the Class G Above-Cap
Reserve Account (as provided in Section 3.06(f) of the Intercreditor
Agreement) to be applied as set forth in said Section 3.06(f) plus all
Unpaid Amounts due and payable by Party A under the Confirmation on or
prior to the Early Termination Date and upon such payments the Transaction
evidenced by the Confirmation shall terminate.
"Termination Amount" means, for any Early Termination Date, the amount
obtained by solving the following formula for TA:
TA = (18.0% per annum - CR) x N x F
where
CR = the Cap Rate designated in the Confirmation
N = the Notional Amount for such date
F = 1.528
For the avoidance of doubt, the Termination Amount shall not exceed US$
92,486,325.60 at any time."
(K) TERMINATION CURRENCY. "Termination Currency" means United States
Dollars.
(L) ADDITIONAL TERMINATION EVENT. Additional Termination Event will
apply solely as specified in the Confirmation.
(M) LIMITATIONS ON CONDITIONS PRECEDENT. Notwithstanding Section 2(a), the
obligation of Party A to make each payment specified in the Confirmation,
so long as it shall remain in effect, shall not be subject to any
conditions precedent, and, without limiting the foregoing, Party A agrees
that it will make each such payment without offset, counterclaim or
defense.
PART 2
TAX REPRESENTATIONS
(A) PAYER TAX REPRESENTATIONS. For the purpose of Section 3(e), Party A and
Party B each make the following representation:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e) or 6(e)) to be made by it
to the other party under this Agreement. In making this representation, it
may rely on:
(i) the accuracy of any representation made by the other party
pursuant to Section 3(f);
(ii) the satisfaction of the agreement of the other party contained in
Section 4(a)(i) or 4(a)(iii) and the accuracy and effectiveness of
any document provided by the other party pursuant
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to Section 4(a)(i) or 4(a)(iii); and
(iii) the satisfaction of the agreement of the other party contained in
Section 4(d);
provided that it shall not be a breach of this representation where
reliance is placed on clause (ii), and the other party does not deliver a
form or document under Section 4(a)(iii) by reason of material prejudice
to its legal or commercial position.
(B) PAYEE TAX REPRESENTATIONS. For the purpose of Section 3(f),
(i) Party A represents that it is an unlimited liability company formed
under the laws of England and Wales.
(ii) Party B represents that it is a national banking association
organized under the laws of the United States.
PART 3
AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Section 4(a)(ii) of this Agreement, each party agrees to
deliver the following documents, as applicable:
COVERED BY
PARTY REQUIRED TO FORM/DOCUMENT/ DATE BY WHICH TO BE SECTION 3(D)
DELIVER DOCUMENTS CERTIFICATE DELIVERED REPRESENTATION
Party A Evidence reasonably Upon execution of this Yes
and Party B satisfactory to the Agreement and the
other party as to the related Confirmation
names, true signatures
and authority of the
officer or officials
signing this Agreement
or the Confirmation on
its behalf
Party A A copy of the annual Upon request, as soon Yes
report for Party A as publicly available
containing audited and
certified financial
statements for the
most recently ended
financial year
Party A Opinions of counsel to Upon execution of this No
Party A reasonably Agreement
satisfactory in form
and substance to Party
B with respect to this
Agreement
Party B Certified copies of Upon execution of this Yes
all documents Agreement
evidencing the
necessary corporate
authorizations and
approvals
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with respect to the
execution, delivery,
and performance of
derivatives
transactions
Party B Correct, complete and Upon execution of this Not applicable
executed U.S. Internal Agreement, upon the
Revenue Form W-9 or appointment of a
any successor thereto successor
Subordination Agent,
and at any time upon
reasonable request by
Party A
PART 4
MISCELLANEOUS
(A) ADDRESSES FOR NOTICES. For the purpose of Section 12(a):
(i) (A) Address for notices or communications to Party A (other
than by facsimile):
Address: Credit Suisse First Boston International
One Xxxxx Xxxxxx
Xxxxxx, X00 0XX
Xxxxxxx
Attention: (a) Head of Credit Risk Management
(b) Managing Director - Operations Department, and
(c) Managing Director - Legal Department
Telex: 264521
Answerback: CSFBI G
(For all purposes)
(B) For the purpose of facsimile notices or communications to Party
A under this Agreement (other than a notice or communication
under Section 5 or 6):
Facsimile: (44)(00) 0000 0000
Attention: Managing Director - Legal Department
Telephone for oral confirmation of receipt of facsimile in
legible form: (44)(00) 0000 0000
Designated responsible employee for the purpose of
Section 12(a)(iii): Senior Legal Secretary
(ii) Address for notices or communications to Party B:
Address: State Street Bank and Trust Company of
Connecticut,
National Association
x/x Xxxxx Xxxxxx Xxxx and Trust Company
2 Avenue de Lafayette - 0xx Xxxxx
0
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Ms. Alison X.X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(For all purposes.)
(B) OFFICES. The provisions of Section 10(a) will apply to this
Agreement.
(C) MULTIBRANCH PARTY. For the purpose of Section 10(c):
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(D) CALCULATION AGENT. The Calculation Agent is Party A, provided
that if Party B disagrees with respect to any calculation or
determination, Party A and Party B each will appoint an
independent Reference Market-maker, and such two Reference
Market-makers jointly will appoint a third Reference
Market-maker. Such three Reference Market-makers jointly will
make such calculation or determination (acting as experts and
not as arbitrators), whose calculation or determination will
be binding and conclusive absent manifest error. In addition,
if an Event of Default with respect to Party A has occurred
and is continuing, Party B may appoint one of the following
five entities as Calculation Agent: The Chase Manhattan Bank,
UBS A.G., Bank of America, N.A., Deutsche Bank A.G. or
Citibank, N.A.
(E) CREDIT SUPPORT DOCUMENTS.
With respect to Party A: None.
With respect to Party B: None.
(F) CREDIT SUPPORT PROVIDER.
Credit Support Provider means in relation to Party A: None.
Credit Support Provider means in relation to Party B: None.
(G) GOVERNING LAW. This Agreement and each Confirmation will be
governed by and construed in accordance with the laws of the
State of New York.
(H) NETTING OF PAYMENTS. The Netting provision set forth in
Section 2(c) will not apply to any Transaction.
(I) AFFILIATE. Affiliate will have the meaning specified in
Section 14.
(J) COVERED TRANSACTION. The Transaction evidenced by the
Confirmation dated the date of this Agreement (Reference
Number: 522620007) will constitute the only Transaction and
Confirmation supplementing, forming part of, and subject to,
this Agreement.
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PART 5
OTHER PROVISIONS
(A) DEFINITIONS. This Agreement and the Transaction between the parties are
subject to the 2000 ISDA Definitions and Annex to the 2000 ISDA Definitions
(June 2000 Version) as published by the International Swaps and Derivatives
Association, Inc. (collectively, the "Definitions"), and will be governed in all
relevant respects by the provisions set forth in the Definitions, without regard
to any amendment to the Definitions subsequent to the date hereof. The
provisions of the Definitions are incorporated by reference in and shall be
deemed a part of this Agreement, except that references in the Definitions to a
"Swap Transaction" shall be deemed references to a "Transaction" for purposes of
this Agreement. In the event of any inconsistency between the provisions of this
Agreement and the Definitions, this Agreement will prevail. "Intercreditor
Agreement" as used in this Agreement shall mean the Intercreditor Agreement
dated as of September 24, 2002 among State Street Bank and Trust Company of
Connecticut, National Association, as Trustee under the American Airlines Pass
Through Trust 2002-1G, American Airlines Pass Through Trust 2002-1C, and
American Airlines Pass Through Trust 0000-0X, XxxxXX XX, Xxx Xxxx Branch, as
Class G and Class C Primary Liquidity Provider, Party A as Class G Above-Cap
Liquidity Provider, Party B as Subordination Agent, and MBIA Insurance
Corporation as Policy Provider. Capitalized terms used and not defined herein,
the Confirmation, or the Definitions shall have the meanings set forth in the
Intercreditor Agreement, as amended or modified from time to time in accordance
with the terms thereof.
(B) NO RELIANCE. Party A and Party B each represent to the other that it is
entering into this Agreement and will enter into each Transaction in reliance
upon such tax, accounting, regulatory, legal, and financial advice as it deems
necessary and not upon any view expressed by the other.
(C) WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES ITS RESPECTIVE RIGHT TO JURY
TRIAL WITH RESPECT TO ANY LITIGATION ARISING UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR THE TRANSACTION.
(D) NON-PETITION. Party A agrees that it will not, prior to the date that is one
year and one day following the final payment of the Certificates (as defined in
the Intercreditor Agreement), acquiesce, petition or otherwise invoke or cause,
or join in invoking or causing, Party B or any other person or entity to invoke
the process of any governmental authority for the purpose of commencing or
sustaining a case (whether voluntary or involuntary) against Party B under any
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of Party B
or any substantial part of its property or ordering the winding-up or
liquidation of the affairs of Party B.
(E) WAIVER OF RIGHT OF SET-OFF. Notwithstanding any provision of this Agreement,
the Confirmation or any other existing or future agreement between the parties
hereto, each party irrevocably waives any and all rights it may have to set-off,
net, recoup or otherwise withhold or suspend or condition payment or performance
of any obligation between the two parties hereunder against any obligations
between the two parties, whether arising under any agreement, applicable law or
otherwise.
(F) AMENDMENTS. This Agreement is hereby further amended as follows:
(1) Section 2(b) is hereby amended by the insertion of the following at
the end thereof after the word "change": "provided that if such new
account shall not be in the same jurisdiction having the same power
to tax as the original account, the party not changing
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its account shall not be obliged to pay any greater amounts and
shall not receive less as a result of such change than would have
been the case if such change had not taken place."
(2) Section 2(d) is amended by adding thereto a new final sentence
reading as follows: "Anything in this Section 2(d) to the contrary
notwithstanding, Party B shall not be obligated to make any payment
under this Section 2(d) to Party A".
(3) Section 7 is amended by (A) deleting the "and" at the end of Section
7(a); (B) replacing the period at the end of Section 7(b) with a
semi-colon; (C) adding the following as Section 7(c): "Party A may
transfer all of its rights and obligations under this Agreement in
accordance with Part 5(i)(2) of the Schedule to this Agreement;
and"; (D) adding the following as Section 7(d): "any successor to
the Subordination Agent appointed in accordance with Section 7.01(b)
of the Intercreditor Agreement shall automatically become Party B to
this Agreement."; and (E) adding a new penultimate sentence to
Section 7 as follows: "Except as otherwise provided in Part 5(i)(2)
of the Schedule to this Agreement and Section 7.01(b) of the
Intercreditor Agreement, any purported transfer under this Section 7
shall require Ratings Confirmation".
(4) Section 9(b) is amended by adding thereto a new sentence reading as
follows: "In addition, no amendment, modification or waiver in
respect of this Agreement will be effective unless Ratings
Confirmation is received."
(G) LIMITATION OF LIABILITY. The obligations of Party B under this Agreement,
and in respect of the Transaction evidenced by the Confirmation, are expressly
limited to the extent of funds, if any, made available for such payment to Party
B under, and in accordance with, the priorities of payments set forth in
Sections 2.04(b), 3.02, 3.03 and 3.06 of the Intercreditor Agreement. No
recourse under any obligation, covenant or agreement of Party B contained in
this Agreement or the Confirmation shall be had against any incorporator,
stockholder, agent, affiliate, officer, employee or trustee of Party B, as such,
by the enforcement of any assessment or by any legal or equitable proceeding, by
virtue of any statute or otherwise; it being expressly agreed and understood
that the agreements of Party B contained in this Agreement or the Confirmation
are solely trust obligations of Party B and that no personal liability
whatsoever shall attach to or be incurred by the incorporators, stockholders,
agents, affiliates, officers, employees or trustees of Party B, as such, or any
of them, under or by reason of any of the obligations, covenants or agreements
of Party B contained in this Agreement or the Confirmation and that any and all
personal liability of every such incorporator, stockholder, agent, affiliate,
officer, employee or trustee of Party B for breaches by Party B of any such
obligation, covenant or agreement, which liability may arise either at common
law or at equity, by statute or constitution, or otherwise, is hereby expressly
waived as a condition of and in consideration for the execution of this
Agreement; provided, however, that nothing in this paragraph shall relieve any
of the foregoing persons from any liability which any such person may otherwise
have for his/her or its gross negligence or willful misconduct or, with respect
to the handling or transfer of funds, ordinary negligence.
(H) ELIGIBLE CONTRACT PARTICIPANT. Each party represents to the other that it is
an "eligible contract participant" as defined in Section 1a(12) of the Commodity
Exchange Act of 1922 (7 U.S. Code Section 1 et seq.) as amended ("CEA"). This
Agreement and the Transaction hereunder are subject to individual negotiation by
the parties. Neither this Agreement nor the Transaction hereunder has been
executed or traded on a "trading facility" as defined in Section 1a(33) of the
CEA.
(I) INDEMNIFIABLE TAX.
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(1) The definition of "Indemnifiable Tax" in Section 14 is deleted in its
entirety and replaced with the following:
"INDEMNIFIABLE TAX" means any Tax imposed by a Relevant Jurisdiction with
respect to Party A other than a Tax that would not be imposed in respect
of a payment under this Agreement but for a present or former connection
between the jurisdiction of the government or taxation authority imposing
such Tax and State Street Bank and Trust Company of Connecticut, National
Association acting in its individual capacity (including, without
limitation, a connection arising from State Street Bank and Trust Company
of Connecticut, National Association acting in its individual capacity
being or having been a citizen or resident of such jurisdiction, or being
or having been organized, present or engaged in a trade or business in
such jurisdiction, or having had a permanent establishment or fixed place
of business in such jurisdiction, but excluding a connection arising
solely from State Street Bank and Trust Company of Connecticut, National
Association acting in its capacity as Subordination Agent on behalf of the
Trustee having executed, delivered, performed its obligations or received
a payment under, or enforced, this Agreement or a Credit Support
Document)."
(2) Notwithstanding any provision to the contrary contained herein, if Party A
is required to pay additional amounts pursuant to Section 2(d)(i)(4) of
this Agreement in respect of an Indemnifiable Tax, Party A may (at its own
expense):
(a) Transfer all of its rights and obligations under this Agreement to
another Office or an "Approved Affiliate" if on the date of such
transfer, such Approved Affiliate meets the Threshold Rating, which
transfer will require neither a prior Ratings Confirmation nor
consent by any party to the Operative Agreements. Party A agrees to
provide written notice to Party B, American, the Policy Provider,
and the Rating Agencies of any such transfer within five Business
Days after such transfer and to promptly deliver to the Rating
Agencies all relevant documentation with respect to such transfer.
"Approved Affiliate" means Credit Suisse First Boston; or
(b) Transfer all of its rights and obligations under this Agreement to
another Affiliate of Party A that is not an Approved Affiliate,
which transfer will require a prior Ratings Confirmation but will
not require consent by any party to the Operative Agreements; or
(c) Transfer all of its rights and obligations under this Agreement to
any other person, which transfer will require a prior Ratings
Confirmation and consent by the Policy Provider (which consent by
the Policy Provider shall not be unreasonably withheld or delayed)
or arrange for one or more Replacement Above-Cap Liquidity Providers
to enter into and deliver to Party B a Replacement Above-Cap
Liquidity Facility;
provided that, in the case of any of clause (a), (b) or (c) above, both
Party A and the transferee are dealers in notional principal contracts as
defined in U.S. Treasury Regulation Section 1.446-3(c)(4)(iii).
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IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
By: /s/ Xxxxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxxxx Xxxxxxx
------------------------------
Title: Authorized Signatory
------------------------------
Date: September 24, 2002
------------------------------
By: /s/ Xxxxxx Xxxx
------------------------------
Name: Xxxxxx Xxxx
------------------------------
Title: Authorized Signatory
------------------------------
Date: September 24, 2002
------------------------------
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION in its
capacity as Subordination Agent on behalf of
the Trustee under the Class G Trust
Agreement.
By: /s/ Alison X.X. Xxxxxx
------------------------------
Name: Alison X.X. Xxxxxx
------------------------------
Title: Vice President
------------------------------
Date: September 24, 2002
------------------------------
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