EXHIBIT 4.23
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PARTICIPATION AGREEMENT
Dated as of May 24, 2001
among
AMERICAN AIRLINES, INC.,
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Pass Through Trustee under each of the
Pass Through Trust Agreements
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Subordination Agent
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Loan Trustee
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
in its individual capacity as set forth herein
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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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AA-Boeing EETC-Owned Aircraft Participation Agreement
ARTICLE I
DEFINITIONS
Section 1.01. Definitions........................................................................4
Section 1.02. Other Definitional Provisions......................................................4
ARTICLE II
THE LOANS
Section 2.01. The Loans..........................................................................4
Section 2.02. Issuance of Equipment Notes........................................................5
Section 2.03. The Closing........................................................................5
ARTICLE III
CONDITIONS PRECEDENT
Section 3.01. Conditions Precedent to Obligations of the Pass Through Trustees...................5
Section 3.02. Conditions Precedent to Obligations of the Company.................................9
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND INDEMNITIES OF THE COMPANY
Section 4.01. Representations and Warranties of the Company.....................................10
Section 4.02. General Indemnity.................................................................12
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS OF STATE STREET
Section 5.01. Representations, Warranties and Covenants of State Street.........................17
ARTICLE VI
OTHER COVENANTS AND AGREEMENTS
Section 6.01. Other Agreements..................................................................20
Section 6.02. Certain Covenants of the Company..................................................21
ARTICLE VII
MISCELLANEOUS
Section 7.01. Notices...........................................................................23
Section 7.02. Survival of Representations, Warranties, Indemnities, Covenants and Agreements....24
Section 7.03. Governing Law.....................................................................24
AA-Boeing EETC-Owned Aircraft
Participation Agreement
Section 7.04. Severability......................................................................25
Section 7.05. No Oral Modifications or Continuing Waivers; Consents.............................25
Section 7.06. Effect of Headings and Table of Contents..........................................25
Section 7.07. Successors and Assigns............................................................25
Section 7.08. Benefits of Agreement.............................................................25
Section 7.09. Counterparts......................................................................25
Section 7.10. Submission to Jurisdiction........................................................26
Section 7.11. ERISA.............................................................................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 State Street
Exhibit C - Form of Opinion of Special FAA Counsel
Exhibit D - Form of Opinion of Counsel for the Liquidity Provider
Exhibit E - Form of Manufacturer's Consent
Exhibit F - Form of Opinion of Special Counsel for the Pass Through Trustee
Annex A - Definitions
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AA-Boeing EETC-Owned Aircraft
Participation Agreement
PARTICIPATION AGREEMENT
This
PARTICIPATION AGREEMENT, dated as of May 24, 2001, is
made by and among AMERICAN AIRLINES, INC., a Delaware corporation (together with
its successors and permitted assigns, the "Company"), STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking
association (in its individual capacity, together with its successors and
permitted assigns, "State Street"), 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), STATE
STREET BANK AND TRUST COMPANY OF CONNECTICUT, 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 STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as loan trustee (in such capacity, together
with any successor trustee in such capacity, the "Loan Trustee") under the
Indenture.
WITNESSETH:
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 four (and in
certain circumstances five) 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;
AA-Boeing EETC-Owned Aircraft
Participation Agreement
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
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AA-Boeing EETC-Owned Aircraft
Participation Agreement
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 Manhattan Bank (ABA No. 000000000), Account Number
000-0-000000, Attention: Xxxx XxXxxxx.
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 &
Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 9:30 a.m. (
New York City time)
on May 24, 2001, 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.
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AA-Boeing EETC-Owned Aircraft
Participation Agreement
(c) This Agreement and the following documents shall have
been duly authorized, executed and delivered by the respective
party or parties thereto (other 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 Pass Through Trustee:
(i) the Intercreditor Agreement;
(ii) the Liquidity Facilities;
(iii) the Pass Through Trust Agreements;
(iv) the Indenture and the Indenture Supplement
covering the Aircraft and dated the Closing Date;
(v) the Manufacturer's Consent;
(vi) a copy of the FAA Xxxx of Sale; and
(vii) a copy of the Warranty Xxxx of Sale.
(d) A Uniform Commercial Code financing statement or
statements covering the security interest created by the
Indenture shall have been executed and delivered by the Company,
as debtor, and by the Loan Trustee, as secured party, and such
financing statement or statements shall have been duly filed in
all places necessary or desirable within the State of Texas and
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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AA-Boeing EETC-Owned Aircraft
Participation Agreement
(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 Xxxx X. XxXxxxxx,
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 Xxxxxxx Xxxx LLP,
special counsel for State Street, 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 Xxxxx & Xxxxxxx,
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 Assistant Treasurer (or any
other Responsible Officer) of the Company, dated the Closing
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AA-Boeing EETC-Owned Aircraft Participation Agreement
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 State Street in its individual capacity and as
Loan Trustee and Subordination Agent, as applicable, dated the
Closing Date, signed by an authorized officer of State Street 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) Each Pass Through Trustee shall have received opinions
addressed to it from Fulbright & Xxxxxxxx, LLP, counsel for the
Liquidity Provider, substantially in the form set forth in
Exhibit D.
(n) 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.
(o) 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.
(p) The Company shall have entered into the Placement
Agreement, the Pass Through Certificates shall have been issued
and sold pursuant to the Placement Agreement and the Placement
Agents shall have transferred to the Pass Through Trustees in
immediately available funds an amount at least equal to the
aggregate purchase price of the Equipment Notes to be purchased
from the Company.
(q) The Loan Trustee shall have received an executed copy of
the Manufacturer's Consent substantially in the form set forth in
Exhibit E.
Promptly upon the recording of the Indenture (with the
Indenture Supplement attached) pursuant to the Transportation Code, the Company
will cause Xxxxx & Xxxxxxx, P.C., special FAA counsel in Oklahoma City, Oklahoma
to deliver to the Subordination Agent on behalf of the Pass Through Trustees, to
the Loan Trustee and
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AA-Boeing EETC-Owned Aircraft Participation Agreement
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 State Street, the Liquidity 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) and a release signed by Xxxxxx Xxxxxxx
Senior Funding Inc. and Xxxxxx Xxxxxxx and Co. Incorporated
releasing their right, title and interest in an existing security
interest with respect to the Aircraft (the "Release") 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 State Street, the Loan Trustee, the Subordination Agent
and the Pass Through 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 State Street, the
Loan Trustee, the Subordination Agent or any Pass Through
Trustee, such party shall have so certified to the Company.
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AA-Boeing EETC-Owned Aircraft Participation Agreement
(e) The Company shall have received each opinion referred to
in Subsections 3.01(h), 3.01(i) and 3.01(m), each such opinion
(other than 3.01(m)) 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 an opinion addressed to
it from Xxxxxxx Xxxx LLP, special counsel for the Pass Through
Trustees, substantially in the form set forth in Exhibit F.
(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 State
Street dated the Closing Date, signed by an authorized officer of
State Street, 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 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 state in which it has intrastate routes or
has a principal office or a major overhaul facility (other than
states where the failure to so qualify would not have a material
adverse effect on the consolidated financial condition of the
Company and its subsidiaries, considered as a whole), and its
chief executive office (as such term is used in
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AA-Boeing EETC-Owned Aircraft Participation Agreement
Article 9 of the Uniform Commercial Code as in effect in the
State of Texas) is located in Fort Worth, Texas.
(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 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.
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AA-Boeing EETC-Owned Aircraft Participation Agreement
(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 Texas, 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) and the Release 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 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) State Street and the Loan Trustee, (ii) so long as it
holds any Equipment Notes as agent and trustee of any Pass Through Trustee, the
Subordination Agent, (iii) so long as it is the holder of any Equipment Notes,
each Pass Through Trustee, (iv) the Liquidity Provider and (v) 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
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AA-Boeing EETC-Owned Aircraft Participation Agreement
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 Equipment Notes shall have
been paid in full or (y) the transfer of possession of the
Aircraft pursuant to Article IV of the Indenture unless 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;
(ii) any Claim to the extent such Claim is, or is
attributable to, a Tax;
(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;
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AA-Boeing EETC-Owned Aircraft Participation Agreement
(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 (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)
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;
(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, 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 payable or borne
by (a) the Company pursuant to any indemnification, compensation
or reimbursement provision of any other Operative Document or any
Pass Through Document or
12
AA-Boeing EETC-Owned Aircraft Participation Agreement
(b) a Person 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 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
13
AA-Boeing EETC-Owned Aircraft Participation Agreement
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; provided that if any such amount has been so held by the
Loan Trustee as security for more than 90 days after any such Event of Default
shall have occurred, during which period (i) the Loan Trustee shall not have
been limited by operation of law or otherwise from exercising remedies under the
Indenture and (ii) the Loan Trustee shall not have exercised any remedy
available to it under Section 4.02 of the Indenture, then such amount, to the
extent not previously so applied against the Company's payment obligations,
shall be paid to the Company.
(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.
14
AA-Boeing EETC-Owned Aircraft Participation Agreement
(i) Payments; Interest. Any amount payable to any Indemnitee
pursuant to this Section 4.02 shall be paid within 30 days after receipt 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 STATE STREET
Section 5.01. Representations, Warranties and Covenants of
State Street. State Street, 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) State Street 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
State Street, 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. State Street is qualified to act as Loan Trustee
under Section 8.01(c) of the Indenture.
(b) The execution, delivery and performance by State Street,
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 State
Street, the Loan Trustee, the Subordination Agent or any Pass Through Trustee is
a party, and the authentication of the Equipment Notes and the Pass Through
Certificates, respectively, to be delivered on the Closing Date, have been duly
authorized by all necessary action on the part of State Street, the Loan
Trustee, the Subordination Agent and each Pass Through Trustee, as the case may
15
AA-Boeing EETC-Owned Aircraft Participation Agreement
be, and do not violate any law or regulation of the United States or of the
state of the United States in which State Street is located and which governs
the banking and trust powers of State Street or any order, writ, judgment or
decree of any court, arbitrator or governmental authority applicable to State
Street, the Loan Trustee, the Subordination Agent or any Pass Through Trustee or
any of their assets, will not violate any provision of the articles of
association or by-laws of State Street and will not violate any provision of, or
constitute a default under, any mortgage, indenture, contract, agreement or
undertaking to which any of State Street, 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 State Street,
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 State Street, the Loan Trustee,
the Subordination Agent or any Pass Through Trustee is a party, nor the
consummation by State Street, 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,
any governmental authority or agency of the United States or the state of the
United States where State Street is located and regulating the banking and trust
powers of State Street.
(d) This Agreement, each other Operative Document and each
Pass Through Document to which State Street, the Loan Trustee, the Subordination
Agent or any Pass Through Trustee is a party have been duly executed and
delivered by State Street, 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 State Street, the Loan Trustee, the
Subordination Agent and such Pass Through Trustee, as it shall be 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
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).
16
AA-Boeing EETC-Owned Aircraft Participation Agreement
(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 State Street, 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 State Street, 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 State Street, 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 State Street, the Loan
Trustee, the Subordination Agent or any Pass Through Trustee imposed by the
State of Connecticut or any political subdivision or taxing authority thereof in
connection with the execution, delivery or performance by State Street, 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 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 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 or any
political subdivision thereof.
(j) Except with the consent of the Company, which shall not be
unreasonably withheld, State Street 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 State Street, 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 State Street,
the Loan Trustee, the Subordination Agent or any Pass Through Trustee
17
AA-Boeing EETC-Owned Aircraft Participation Agreement
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)
Xxxxxxx Xxxx LLP, special counsel for the Loan Trustee, the
Subordination Agent and the Pass Through Trustees and (y) Xxxxx &
Xxxxxxx, P.C., special FAA counsel in Oklahoma City, Oklahoma;
and
(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.
(c) Each of State Street, the Loan Trustee, the Subordination
Agent, each Pass Through Trustee and any other Noteholder, and, by entering into
the Liquidity Facilities, the Liquidity Provider, agrees that, unless an Event
of Default shall have
18
AA-Boeing EETC-Owned Aircraft Participation Agreement
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.
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 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 recording, filing,
re-recording and refiling of the Indenture and any financing
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,
19
AA-Boeing EETC-Owned Aircraft Participation Agreement
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 the
location of its chief executive office (as such term is used in
Article 9 of the Uniform Commercial Code as in effect in the
State of Texas) 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.
(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 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 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), 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
20
AA-Boeing EETC-Owned Aircraft Participation Agreement
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 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.
(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 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.
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 United States mail, courier service or facsimile or
any other customary means of communication, and any such notice shall be
effective when delivered (or, if mailed three Business Days after deposit,
postage prepaid in the first class United States mail and, if delivered by
facsimile, upon completion of transmission and confirmation by the sender
21
AA-Boeing EETC-Owned Aircraft Participation Agreement
(by a telephone call to a representative of the recipient or by machine
confirmation) that such transmission was received),
if to the Company, to:
American Airlines, Inc.
0000 Xxxx Xxxxxx Xxxx.
Maildrop 5662
Xxxx Xxxxx, Xxxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to State Street, the Loan Trustee, the Subordination Agent or any Pass
Through Trustee, to:
State Street Bank And Trust Company of Connecticut,
National Association
000 Xxxxxx Xxxxxx
Xxxxxxx Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Telephone: (000) 000-0000
Facsimile: (000) 000-0000.
or 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.
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, State Street, 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 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
22
AA-Boeing EETC-Owned Aircraft Participation Agreement
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 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 it shall not unreasonably withhold its consent to any consent of the Loan
Trustee requested by the Company under the terms of the Indenture.
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
State Street, 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.
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
23
AA-Boeing EETC-Owned Aircraft Participation Agreement
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. ERISA. Each of the Company, the Loan Trustee,
the Pass Through Trustee and the Subordination Agent covenant that until the
Series A-1 Equipment Notes and Series A-2 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 respective Pass Through Trust holding
such Equipment Notes.
24
AA-Boeing EETC-Owned Aircraft Participation Agreement
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/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director,
Corporate Finance and Banking
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, as
Pass Through Trustee under
each of the Pass Through
Trust Agreements
By: /s/ Alison Della Bella
-----------------------------
Name: Alison Della Bella
Title: Assistant Vice
President
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION,
as Subordination Agent
By: /s/ Alison Della Bella
-----------------------------
Name: Alison Della Bella
Title: Assistant Vice
President
00
XXXXX XXXXXX XXXX AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, as Loan Trustee
By: /s/ Alison Della Bella
-----------------------------
Name: Alison Della Bella
Title: Assistant Vice
President
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, in its individual
capacity as set forth herein
By: /s/ Alison Della Bella
-----------------------------
Name: Alison Della Bella
Title: Assistant Vice
President
26
AA-Boeing EETC-Owned Aircraft Participation Agreement
SCHEDULE I to
PARTICIPATION
AGREEMENT
Certain Terms
Aircraft
Model: B777-223ER
U.S. Registration Number: N788AN
Manufacturer's Serial Number: 30011
ADDRESSES FOR NOTICES AND ACCOUNT DETAILS
THE COMPANY: 0000 Xxxx Xxxxxx Xxxxxxxxx Chase Manhattan Bank
American Airlines, Inc. Xxxx Xxxxx, XX 00000 ABA #: 0210 0002 1
Attn: Treasurer Account No.: 000-0-000000
Telex: 4630158
Facsimile: 000-000-0000
STATE STREET: Xxxxx Xxxxxx Xxxx xxx Xxxxx Xxxxx Xxxxxx Xxxx and Trust
State Street Bank and Trust Company Company of Connecticut, N.A. Company of Connecticut, N.A.
of Connecticut, N.A. 000 Xxxxxx Xxxxxx c/o State Street Bank and Trust
Xxxxxxxx, XX 00000 Company
Attn: Alison Della Bella Boston, MA
Tel: 000-000-0000 ABA #011-00-0028
Facsimile: 000-000-0000 Corporate Trust
DDA #0000-000-0
FFC: American Airlines EETC 2001-1
Attn: May Xxxx
LOAN TRUSTEE: Xxxxx Xxxxxx Xxxx xxx Xxxxx Xxxxx Xxxxxx Xxxx and Trust
State Street Bank and Trust Company Company of Connecticut, N.A. Company of Connecticut, N.A.
of Connecticut, N.A. 000 Xxxxxx Xxxxxx c/o State Street Bank and Trust
Xxxxxxxx, XX 00000 Company
Attn: Alison Della Bella Boston, MA
Tel: 000-000-0000 ABA #011-00-0028
Facsimile: 000-000-0000 Corporate Trust
DDA #0000-000-0
FFC: American Airlines EETC 2001-1
Attn: May Xxxx
PASS THROUGH TRUSTEE: Xxxxx Xxxxxx Xxxx xxx Xxxxx Xxxxx Xxxxxx Xxxx and Trust
State Street Bank and Trust Company Company of Connecticut, N.A. Company of Connecticut, N.A.
of Connecticut, N.A. 000 Xxxxxx Xxxxxx c/o State Street Bank and Trust
Xxxxxxxx, XX 00000 Company
Attn: Alison Della Bella Boston, MA
Tel: 000-000-0000 ABA #011-00-0028
Facsimile: 000-000-0000 Corporate Trust
DDA #0000-000-0
FFC: American Airlines EETC 2001-1
Attn: May Xxxx
SUBORDINATION AGENT: Xxxxx Xxxxxx Xxxx xxx Xxxxx Xxxxx Xxxxxx Xxxx and Trust
State Street Bank and Trust Company Company of Connecticut, N.A. Company of Connecticut, N.A.
of Connecticut, N.A. 000 Xxxxxx Xxxxxx c/o State Street Bank and Trust
Xxxxxxxx, XX 00000 Company
Attn: Alison Della Bella Boston, MA
Tel: 000-000-0000 ABA #011-00-0028
Facsimile: 000-000-0000 Corporate Trust
DDA #0000-000-0
FFC: American Airlines EETC 2001-1
Attn: May Xxxx
2
SCHEDULE II to
PARTICIPATION
AGREEMENT
EQUIPMENT NOTES,
PURCHASERS AND ORIGINAL PRINCIPAL AMOUNTS
Original
Description of Interest Principal
Purchaser Equipment Notes Maturity Rate Amount
--------- --------------- -------- -------- ---------
American Airlines Series 2001-1A-1 May 23, 2021 6.977% $420,880,000
Pass Through Trust Equipment Note
2001-1A-1 EN-11A1-001
American Airlines Series 2001-1A-2 May 23, 2011 6.817% $392,209,000
Pass Through Trust Equipment Note
2001-1A-2 EN-11A2-001
American Airlines Series 2001-1B May 23, 2019 7.377% $297,430,000
Pass Through Trust Equipment Note
2001-1B EN-11B-001
American Airlines Series 2001-1C May 23, 2016 7.379% $183,530,000
Pass Through Trust Equipment Note
2001-1C EN-11C-001
American Airlines Series 2001-1D May 23, 2008 7.686% $25,600,000
Pass Through Trust Equipment Note
2001-1D EN-11D-001
II-1
SCHEDULE III to
PARTICIPATION AGREEMENT
TRUST SUPPLEMENTS
Trust Supplement No. 2001-1A-1, dated as of May 24, 2001,
between the Company and the Pass Through Trustee in respect of American Airlines
Pass Through Trust 2001-1A-1.
Trust Supplement No. 2001-1A-2, dated as of May 24, 2001,
between the Company and the Pass Through Trustee in respect of American Airlines
Pass Through Trust 2001-1A-2.
Trust Supplement No. 2001-1B, dated as of May 24, 2001,
between the Company and the Pass Through Trustee in respect of American Airlines
Pass Through Trust 2001-1B.
Trust Supplement No. 2001-1C, dated as of May 24, 2001,
between the Company and the Pass Through Trustee in respect of American Airlines
Pass Through Trust 2001-1C.
III-1
EXHIBIT A to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
COUNSEL FOR THE COMPANY.
A-1
EXHIBIT B to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
SPECIAL COUNSEL FOR THE LOAN TRUSTEE, XXX XXXXXXXXXXXXX XXXXX
XXX XXXXX XXXXXX
X-0
EXHIBIT C to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
SPECIAL FAA COUNSEL
C-1
EXHIBIT D to
PARTICIPATION AGREEMENT
FORM OF OPINION OF COUNSEL FOR THE LIQUIDITY PROVIDER
D-1
EXHIBIT E to
PARTICIPATION AGREEMENT
FORM OF MANUFACTURER'S CONSENT
E-1
EXHIBIT F to
PARTICIPATION AGREEMENT
FORM OF OPINION
SPECIAL COUNSEL FOR THE PASS THROUGH TRUSTEES
F-1
Annex A to
Participation Agreement and
Indenture and Security Agreement
DEFINITIONS
"Additional Insureds" has the meaning specified in Section 7.06(a) of the
Indenture.
"Agreement" and "Participation Agreement" mean that certain Participation
Agreement, dated on or before the Closing Date, among the Company, State Street,
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
therefor 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 that are
excluded from the definition of Parts (except Engines or engines)) specified in
the Indenture Supplement 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.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 United
States Codess.ss.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 the Closing Date, between the Company and State
Street, 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 Xxxx of Sale and the Warranty Xxxx of Sale.
AA-Boeing EETC-Owned Aircraft Annex A
Annex A to
Participation Agreement and
Indenture and Security Agreement
"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 a 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.
"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 State Street Bank and Trust Company of Connecticut, National
Association,
2
AA-Boeing EETC-Owned Aircraft Annex A
Annex A to
Participation Agreement and
Indenture and Security Agreement
000 Xxxxxx Xxxxxx, Xxxxxxx 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, with respect to any Series, the rate per annum
specified for such Series under the heading "Interest Rate" in Schedule I to the
Indenture, as such rate may be adjusted as necessary to provide for the
increased interest rate borne by the Equipment Notes in the circumstances
specified in Section 2(d) of the Registration Rights Agreement.
"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 Equipment Note originally issued
pursuant to Section 2.02 of the Indenture and any Equipment Note issued in
exchange therefor or replacement thereof pursuant to Section 2.07 and 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.
3
AA-Boeing EETC-Owned Aircraft Annex A
Annex A to
Participation Agreement and
Indenture and Security Agreement
"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;
(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 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
4
AA-Boeing EETC-Owned Aircraft Annex A
Annex A to
Participation Agreement and
Indenture and Security Agreement
(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.
"FAA" means the United States Federal Aviation Administration and any
agency or instrumentality of the United States government succeeding to its
functions.
"FAA Xxxx of Sale" means, collectively, (a) the xxxx of sale for the
Aircraft on AC Form 8050-2, executed by the Manufacturer in favor of Boeing
Sales Corporation and recorded with the FAA and (b) the xxxx of sale for the
Aircraft on AC Form 8050-2, executed by Boeing Sales Corporation 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 in 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 State Street from
three Federal funds brokers of recognized standing selected by it.
"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, 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 supplementing by an Indenture Supplement pursuant to
the Indenture.
"Indenture Indemnitee" means (i) the Loan Trustee, (ii) State Street,
(iii) so long as it holds any Equipment Note as agent and trustee of any Pass
Through Trustee, the Subordination Agent, (iv) the Liquidity Provider and (v) so
long as it is the holder of any Equipment Notes, each Pass Through Trustee and
each of their respective directors, officers, employees, agents and servants. No
holder of a Pass Through Certificate in its capacity as such shall be an
Indenture Indemnitee.
5
AA-Boeing EETC-Owned Aircraft Annex A
Annex A to
Participation Agreement and
Indenture and Security Agreement
"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 Liquidity
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 Facilities" means the four Revolving Credit Agreements, each
dated as of the Closing Date, between the Subordination Agent, as borrower, and
the Liquidity Provider, and any replacements thereof, in each case as the same
may be amended or supplemented or otherwise modified from time to time in
accordance with its terms.
"Liquidity Provider" means Boeing Capital Corporation, a Delaware
corporation, solely in its capacity as liquidity provider under each of the
Liquidity Facilities, or any liquidity provider under a replacement liquidity
facility.
"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 State Street 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 State Street
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 State
Street or the Loan Trustee not permitted by, or the failure of State Street or
the Loan Trustee to take any action required by, the Operative Documents or the
Pass Through Documents, (iii) claims against State Street or the Loan Trustee
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 State Street 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
6
AA-Boeing EETC-Owned Aircraft Annex A
Annex A to
Participation Agreement and
Indenture and Security Agreement
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
or any affiliate thereof, unless all Equipment Notes are held by the Company or
any affiliate thereof).
"Make-Whole Amount" means, with respect to any Equipment Note, the amount
(as determined by an investment bank of national standing selected by the
Company (and, following the occurrence and during the continuance of an Event of
Default, reasonably acceptable to the Loan Trustee)), 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. For purposes of
determining the Make-Whole Amount, "Treasury Yield" means, at the time of
determination, the interest rate (expressed as a semiannual 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 semiannual
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 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 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. "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
7
AA-Boeing EETC-Owned Aircraft Annex A
Annex A to
Participation Agreement and
Indenture and Security Agreement
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.
"Mortgage Convention" means the Convention on the International
Recognition of Rights in Aircraft as in effect on the date hereof or as
hereafter amended, modified or supplemented.
"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.
"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) or the Liquidity 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.
"Participation Agreement" has the meaning set forth under the definition
of "Agreement".
8
AA-Boeing EETC-Owned Aircraft Annex A
Annex A to
Participation Agreement and
Indenture and Security 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 and the Liquidity Facilities.
"Pass Through Trust" means each of the four (and in some cases five)
separate grantor trusts 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 four (and in some cases
five) separate Trust Supplements 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.
"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 applicable Debt Rate plus 1% and, in any case other than with
respect to a particular Series, the Debt Rate for the Series A-1 Equipment Notes
plus 1%.
"Payment Date" means, for any Equipment Note, each May 23 and November
23, commencing with November 23, 2001.
"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
9
AA-Boeing EETC-Owned Aircraft Annex A
Annex A to
Participation Agreement and
Indenture and Security Agreement
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 Xxxxx'x Investors Service,
Inc. ("Moody's") or Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx 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 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 Moody's 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 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
10
AA-Boeing EETC-Owned Aircraft Annex A
Annex A to
Participation Agreement and
Indenture and Security Agreement
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) or, if unrated, deemed to be of a comparable quality by the Loan
Trustee; (n) asset-backed securities 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)
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.
"Placement Agents" means the placement agents listed as such in the
Placement Agreement.
"Placement Agreement" means that certain Placement Agreement, dated as of
the date of the Participation Agreement, among the Company and the Placement
Agents.
"Purchase Agreement" means the Purchase Agreement, dated as of the date
specified in Schedule I to the Participation Agreement, which incorporates by
reference the Aircraft General Terms Agreement AGTA-AAL, 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.
"Rating Agencies" has the meaning specified in the Intercreditor
Agreement.
"Registration Rights Agreement" means that certain Registration Rights
Agreement, dated as of the date of the Indenture, between American, each Pass
Through Trustee and the Placement Agents, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
"Related Indemnitee Group" has the meaning specified in Section 4.02(b)
of the Participation Agreement.
11
AA-Boeing EETC-Owned Aircraft Annex A
Annex A to
Participation Agreement and
Indenture and Security Agreement
"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 or a comparable or 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 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 (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 under the supervision of such Chairman of the Board, President,
Senior Vice President, Chief Financial Officer, Vice President, Treasurer or
Secretary and (c) whose responsibilities include the administration of the
transactions and agreements contemplated by the Participation Agreement and the
Indenture.
"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 Section 2.06 of the
Indenture.
"Series" means any series of Equipment Notes, including the Series A-1
Equipment Notes, the Series A-2 Equipment Notes, the Series B Equipment Notes,
the Series C Equipment Notes or the Series E Equipment Notes.
"Series A-1 Equipment Notes" means Equipment Notes issued and designated
as "Series A-1 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 A-1 Equipment Notes."
12
AA-Boeing EETC-Owned Aircraft Annex A
Annex A to
Participation Agreement and
Indenture and Security Agreement
"Series A-2 Equipment Notes" means Equipment Notes issued and designated
as "Series A-2 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 A-2 Equipment Notes."
"Series B Equipment Notes" means Equipment Notes issued and designated as
"Series B 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 B Equipment Notes."
"Series C Equipment Notes" means Equipment Notes issued 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."
"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 Schedule I
to the Indenture under the heading "Series E Equipment Notes" (or, if the Series
E Equipment Notes are issued after the Closing Date, as specified in an
amendment to the Indenture at the time of issuance of the Series E Equipment
Notes).
"State Street" has the meaning specified in the introductory paragraph to
the Participation Agreement.
"Subordination Agent" has the meaning specified in the introductory
paragraph to the Participation Agreement.
"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.
13
AA-Boeing EETC-Owned Aircraft Annex A
Annex A to
Participation Agreement and
Indenture and Security Agreement
"Trust Supplements" means those agreements supplemental to the Basic Pass
Through Trust Agreement referred to in Schedule II to the Participation
Agreement.
"United States" means the United States of America.
"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 Xxxx of Sale" means, collectively, (a) the warranty (as to
title) xxxx of sale covering the Aircraft, executed by the Manufacturer in favor
of Boeing Sales Corporation and specifically referring to each Engine, as well
as the Airframe, constituting a part of the Aircraft and (b) the warranty (as to
title) xxxx of sale covering the Aircraft, executed by Boeing Sales Corporation
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 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.
14
AA-Boeing EETC-Owned Aircraft Annex A
