EXHIBIT 4.10
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TRUST SUPPLEMENT NO. 2001-2B
Dated as of October 4, 2001
between
AMERICAN AIRLINES, INC.
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Trustee,
to
PASS THROUGH TRUST AGREEMENT
Dated as of October 4, 2001
American Airlines Pass Through Trust 2001-2B
8.608% American Airlines
Pass Through Certificates,
Series 2001-2B
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions ......................................................................... 2
ARTICLE II
THE TRUST AND THE TRUSTEE
Section 2.01. Declaration of Trust ................................................................ 8
Section 2.02. Activities of Trust ................................................................. 8
ARTICLE III
THE Applicable CERTIFICATES
Section 3.01. The Certificates .................................................................... 9
Section 3.02. Delivery of Documents; Delivery Dates ............................................... 11
Section 3.03. Withdrawal of Deposits .............................................................. 12
Section 3.04. The Trustee ......................................................................... 12
Section 3.05. Representations and Warranties of the Trustee ....................................... 12
Section 3.06. Trustee Liens ....................................................................... 13
ARTICLE IV
DEFAULT
Section 4.01. Purchase Rights of Certificateholders ............................................... 13
ARTICLE V
THE CERTIFICATES
Section 5.01. Additions to Article III of the Basic Agreement ..................................... 17
Section 5.02. Restrictive Legends ................................................................. 18
Section 5.03. Transfer and Exchange ............................................................... 21
Section 5.04. Book-entry Provisions for U.S. Global Certificate and Offshore Global Certificates .. 21
Section 5.05. Special Transfer Provisions ......................................................... 23
ARTICLE VI
STATEMENTS TO CERTIFICATEHOLDERS
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Section 6.01. Statements to Applicable Certificateholders ......................................... 25
ARTICLE VII
ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS
Section 7.01. Supplemental Agreements Without Consent of Applicable Certificateholders ............ 27
Section 7.02. Supplemental Agreements with Consent of Applicable Certificateholders ............... 27
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Final Termination Date .............................................................. 27
Section 8.02. Basic Agreement Ratified ............................................................ 28
Section 8.03. Governing Law ....................................................................... 28
Section 8.04. Counterparts ........................................................................ 28
Section 8.05. Intention of Parties ................................................................ 28
EXHIBIT A Form of Certificate ............................................................... A-1
EXHIBIT B Form of Certificate for Unlegended Certificates ................................... B-1
EXHIBIT C Form of Certificate to be Delivered in Connection with Transfers
Pursuant to Regulation S ...................................................... C-1
EXHIBIT D Form of Certificate to be Delivered in Connection with Transfers to
Non-QIB Accredited Investors .................................................. D-1
EXHIBIT E DTC Letter of Representations ..................................................... E-1
SCHEDULE I-A Prefunded Aircraft-Equipment Notes, Principal
Amounts and Maturities ........................................................ I-A-1
SCHEDULE I-B Non-Prefunded Aircraft-Equipment Notes,
Principal Amounts and Maturities .............................................. I-B-1
SCHEDULE II Aircraft .......................................................................... II-1
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TRUST SUPPLEMENT NO. 2001-2B
This TRUST SUPPLEMENT NO. 2001-2B, dated as of October 4, 2001 (the "Trust
Supplement"), between American Airlines, Inc., a Delaware corporation, and State
Street Bank and Trust Company of Connecticut, National Association, a national
banking association, as Trustee, to the Pass Through Trust Agreement, dated as
of October 4, 2001, between the Company (such term and other capitalized terms
used herein without definition being defined as provided in Section 1.01) and
the Trustee (the "Basic Agreement").
W I T N E S S E T H:
WHEREAS, the Basic Agreement, which is unlimited as to the aggregate face
amount of Certificates that may be issued and authenticated thereunder, has
heretofore or concurrently herewith been executed and delivered;
WHEREAS, the Company is the owner of 20 aircraft described in Schedule II
and is the owner of or has obtained commitments from Boeing for the delivery of
11 additional aircraft described in Schedule II (such 11 additional aircraft or
any aircraft substituted therefor in accordance with the term of the Note
Purchase Agreement, being the "Prefunded Aircraft" and collectively with such 20
other aircraft being the "Aircraft");
WHEREAS, pursuant to each Indenture, the Company will issue, on a recourse
basis, the 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 such Indenture;
WHEREAS, the Trustee shall hereby declare the creation of the Applicable
Trust (as defined below) for the benefit of Holders of the Applicable
Certificates (as defined below) to be issued in respect of such Applicable
Trust, and the initial Holders of the Applicable Certificates, as grantors of
such Applicable Trust, by their respective acceptances of the Applicable
Certificates, shall join in the creation of the Applicable Trust with the
Trustee;
WHEREAS, all Certificates to be issued by the Applicable Trust will
evidence Fractional Undivided Interests in the Applicable Trust and will have no
rights, benefits or interests in respect of any other separate Trust or the
property held therein;
WHEREAS, the Escrow Agent, the Trustee and the Placement Agents have
contemporaneously herewith entered into an Escrow Agreement with the Escrow
Paying Agent pursuant to which the Placement Agents have delivered to the Escrow
Agent a portion of the proceeds from the sale of the Applicable Certificates and
have irrevocably instructed the Escrow Agent to withdraw and pay funds from such
proceeds upon request and proper certification by the Trustee to purchase
Equipment Notes as the relevant Prefunded Aircraft are delivered by Boeing under
the Purchase Agreement from time to time, as provided in the Note Purchase
Agreement;
WHEREAS, the Escrow Agent on behalf of the Applicable Certificateholders
has contemporaneously herewith entered into the Deposit Agreement with the
Depositary under which the Deposit referred to therein will be made and from
which it will withdraw funds to allow the Trustee to purchase Equipment Notes in
respect of the Prefunded Aircraft from time to time on or prior to the Cut-off
Date;
WHEREAS, pursuant to the terms and conditions of the Basic Agreement, as
supplemented by this Trust Supplement, the Note Purchase Agreement and the
Participation Agreements, the Trustee on behalf of the Applicable Trust shall on
the date hereof or in the case of the Prefunded Aircraft, on each Funding Date
with respect to a Prefunded Aircraft (using funds withdrawn under the Escrow
Agreement) purchase one or more Equipment Notes issued by the Company pursuant
to the Indenture relating to the relevant Aircraft, having the identical
interest rate as, and final maturity dates not later than the final Regular
Distribution Date of, the Applicable Certificates issued hereunder and shall
hold such Equipment Notes in trust for the benefit of the Applicable
Certificateholders;
WHEREAS, pursuant to the terms and conditions of the Intercreditor
Agreement referred to in Section 3.01(i) hereof (the "Intercreditor Agreement"),
the Trustee and the other parties thereto will agree to the terms of
subordination set forth therein;
WHEREAS, all of the conditions and requirements necessary to make this
Trust Supplement, when duly executed and delivered, a valid, binding and legal
instrument in accordance with its terms and for the purposes herein expressed,
have been done, performed and fulfilled, and the execution and delivery of this
Trust Supplement in the form and with the terms hereof have been in all respects
duly authorized;
WHEREAS, upon the occurrence of a Registration Event, the Basic Agreement
as supplemented by this Trust Supplement shall become subject to the provisions
of the Trust Indenture Act of 1939, as amended, and shall, to the extent
applicable, be governed by such provisions;
NOW THEREFORE, in consideration of the mutual agreements herein contained,
and of other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Unless otherwise specified herein or the
context otherwise requires, capitalized terms used but not defined herein shall
have the respective meanings set forth, and shall be construed and interpreted
in the manner described, in the Basic Agreement or, to the extent not defined
therein, in the Intercreditor Agreement.
Account: has the meaning specified in the Deposit Agreement.
Agent Members: has the meaning specified in Section 5.04 of this
Trust Supplement.
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Agreement: means the Basic Agreement as supplemented by this Trust
Supplement.
Applicable Certificateholder: means the Person in whose name an
Applicable Certificate is registered on the Register for the Applicable
Certificates.
Applicable Certificates: has the meaning specified in Section 3.01
of this Trust Supplement.
Applicable Date: has the meaning specified in Section 3.02 of this
Trust Supplement.
Applicable Participation Agreement: has the meaning specified in
Section 3.02(b) of this Trust Supplement.
Applicable Trust: has the meaning specified in Section 2.01 of this
Trust Supplement.
Basic Agreement: has the meaning specified in the first paragraph of
this Trust Supplement.
Boeing: means The Boeing Company.
Clearstream: means Clearstream Banking, societe anonyme.
Class E Certificateholder: has the meaning specified in Section
4.01(a) of this Trust Supplement.
Cut-off Date: has the meaning specified in Section 3.01(b) of this
Trust Supplement.
Delivery Notice: has the meaning specified in Section 1(b) of the
Note Purchase Agreement.
Delivery Period Termination Date: means March 15, 2002.
Deposit: has the meaning specified in Section 2.1 of the Deposit
Agreement.
Deposit Agreement: means the Deposit Agreement dated as of October
4, 2001 relating to the Applicable Certificates between the Depositary and
the Escrow Agent, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
Depositary: means WestLB.
DTC: means The Depository Trust Company, and any successor entity to
DTC as depositary for the Applicable Certificates.
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Escrow Agent: means State Street Bank and Trust Company, a
Massachusetts trust company or any replacement or successor therefor
appointed in accordance with the Escrow Agreement.
Escrow Agreement: means the Escrow and Paying Agent Agreement dated
as of October 4, 2001 relating to the Applicable Certificates, among the
Escrow Agent, the Escrow Paying Agent, the Trustee and the Placement
Agents, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with its terms.
Escrow Paying Agent: means the Person acting as paying agent under
the Escrow Agreement.
Escrow Receipt: means the receipt substantially in the form annexed
to the Escrow Agreement representing a fractional undivided interest in
the funds held in escrow thereunder.
Euroclear: means Euroclear Bank S.A./N.V., as the operator of the
Euroclear System.
Exchange Certificates: means the certificates substantially in the
form of Exhibit A attached hereto issued in exchange for the Initial
Certificates pursuant to the Registration Rights Agreement and
authenticated hereunder.
Exchange Offer Registration Statement: has the meaning specified in
the Registration Rights Agreement.
Final Withdrawal: has the meaning specified in Section 1.02 of the
Escrow Agreement.
Final Withdrawal Date: has the meaning specified in Section 1.02 of
the Escrow Agreement.
Funding Date: has the meaning specified in Section 1(b)(i) of the
Note Purchase Agreement.
Global Certificates: has the meaning specified in Section 5.01(c) of
this Trust Supplement.
Global Exchange Certificate: has the meaning specified in Section
5.01(e) of this Trust Supplement.
Initial Certificates: has the meaning specified in Section 3.01 of
this Trust Supplement.
Institutional Accredited Investor: means an institutional investor
that is an "accredited investor" within the meaning set forth in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act.
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Liquidity Provider: means WestLB, or any replacements or successors
therefor appointed in accordance with the Intercreditor Agreement.
Non-U.S. Person: means a Person that is not a "U.S. Person," as
defined in Regulation S.
Note Documents: means the Equipment Notes with respect to the
Applicable Certificates and, with respect to any such Equipment Note, the
related Indenture and Participation Agreement.
Note Purchase Agreement: means the Note Purchase Agreement dated as
of October 4, 2001 among the Trustee, the Other Trustees, the Company, the
Escrow Agent, the Escrow Paying Agent and the Subordination Agent,
providing for, among other things, the purchase of Equipment Notes in
respect of Prefunded Aircraft by the Trustee on behalf of the Applicable
Trust, as the same may be amended, supplemented or otherwise modified from
time to time, in accordance with its terms.
Notice of Purchase Withdrawal: has the meaning specified in Section
2.3(b) of the Deposit Agreement.
Offering Memorandum: means the offering memorandum dated September
25, 2001 relating to the offering of the Initial Certificates.
Offshore Certificates Exchange Date: has the meaning specified in
Section 5.01(c) of this Trust Supplement.
Offshore Global Certificates: has the meaning specified in Section
5.01(c) of this Trust Supplement.
Offshore Physical Certificates: has the meaning specified in Section
5.01(d) of this Trust Supplement.
Other Agreements: means (i) the Basic Agreement as supplemented by
Trust Supplement No. 2001-2A-1 dated as of the date hereof relating to
American Airlines Pass Through Trust 2001-2A-1; (ii) the Basic Agreement
as supplemented by Trust Supplement No. 2001-2A-2 dated as of the date
hereof relating to American Airlines Pass Through Trust 2001-2A-2; (iii)
the Basic Agreement as supplemented by Trust Supplement No. 2001-2C dated
as of the date hereof relating to American Airlines Pass Through Trust
2001-2C or, in connection with a refunding of the Class C Certificates in
accordance with Exhibit A to the Intercreditor Agreement, as supplemented
by the trust supplement executed in connection with the new class C
certificates issued upon such refunding; (iv) the Basic Agreement as
supplemented by Trust Supplement No. 2001-2D dated as of the date hereof
relating to American Airlines Pass Through Trust 2001-2D or, in connection
with a refunding of the Class D Certificates in accordance with Exhibit A
to the Intercreditor Agreement, as supplemented by the trust supplement
executed in connection with the new class D certificates issued upon such
refunding; and (v) if Class E Certificates are issued, the Basic Agreement
as supplemented by Trust Supplement No. 2001-2E relating to American
Airlines Pass Through Trust 2001-2E.
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Other Trustees: means the trustees under the Other Agreements, and
any successor or other trustee appointed as provided therein.
Other Trusts: means the American Airlines Pass Through Trust
2001-2A-1 created on the date hereof, the American Airlines Pass Through
Trust 2001-2A-2 created on the date hereof, the American Airlines Pass
Through Trust 2001-2C created on the date hereof (or, in connection with a
refunding of the Class C Certificates in accordance with Exhibit A to the
Intercreditor Agreement, the trust formed in connection therewith for the
issuance of the new class C certificates) and the American Airlines Pass
Through Trust 2001-2D created on the date hereof (or, in connection with a
refunding of the Class D Certificates in accordance with Exhibit A to the
Intercreditor Agreement, the trust formed in connection therewith for the
issuance of the new class D certificates), and, if Class E Certificates
are issued, the American Airlines Pass Through Trust 2001-2E.
Participation Agreement: means each Participation Agreement among
the Company and State Street Bank and Trust Company of Connecticut,
National Association as the Trustee, the Other Trustees, the Subordination
Agent and the Loan Trustee and in its individual capacity, as the same may
be amended, supplemented or otherwise modified in accordance with its
terms.
Permanent Offshore Global Certificate: has the meaning specified in
Section 5.01(c) of this Trust Supplement.
Physical Certificates: has the meaning specified in Section 5.01(d)
of this Trust Supplement.
Placement Agents: means, collectively, Xxxxxx Xxxxxxx & Co.
Incorporated, Credit Suisse First Boston Corporation, Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxx Securities Inc. and
Xxxxxxx Xxxxx Xxxxxx Inc.
Placement Agreement: means the Placement Agreement dated as of
September 25, 2001 among the Placement Agents and the Company, as the same
may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
Pool Balance: means, as of any date, (i) the original aggregate face
amount of the Applicable Certificates less (ii) the aggregate amount of
all payments made in respect of such Applicable Certificates or in respect
of the Deposit relating to the Applicable Trust other than distributions
made in respect of interest or premium thereon or reimbursement of any
costs or expenses incurred in connection therewith. The Pool Balance as of
any Distribution Date shall be computed after giving effect to any special
distribution with respect to the unused Deposit, the payment of principal,
if any, on the Equipment Notes or other Trust Property and the
distribution thereof to be made on that date.
Pool Factor: means, as of any Distribution Date, the quotient
(rounded to the seventh decimal place (and rounding 0.00000005 up))
computed by dividing (i) the Pool Balance by (ii) the original aggregate
face amount of the Applicable Certificates. The Pool Factor as of any
Distribution Date shall be computed after giving effect to any special
distribution with respect to the unused Deposit, the payment of principal,
if any,
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on the Equipment Notes or other Trust Property and the distribution
thereof to be made on that date.
Prefunded Aircraft: has the meaning set forth in the recitals
hereof.
Private Placement Legend: has the meaning specified in Section
5.02(a) of this Trust Supplement.
Purchase Agreement: has the meaning specified in the Note Purchase
Agreement.
QIB: means a qualified institutional buyer as defined in Rule 144A.
Registration Event: has the meaning set forth in the Registration
Rights Agreement.
Registration Rights Agreement: means the Registration Rights
Agreement dated October 4, 2001 among the Placement Agents, the Trustee,
the Other Trustees (other than the Class C Trustee and the Class D
Trustee) and the Company, as amended, supplemented or otherwise modified
from time to time in accordance with its terms.
Registration Statement: has the meaning set forth in the
Registration Rights Agreement.
Regulation S: means Regulation S under the Securities Act or any
successor regulation thereto.
Rule 144A: means Rule 144A under the Securities Act or any successor
rule thereto.
Scheduled Delivery Date: has the meaning specified in Section 1(b)
of the Note Purchase Agreement.
Securities Act: means the U.S. Securities Act of 1933, as amended.
Shelf Registration Statement: has the meaning set forth in the
Registration Rights Agreement.
Temporary Offshore Global Certificate: has the meaning set forth in
Section 5.01(c) of this Trust Supplement.
Triggering Event: has the meaning assigned to such term in the
Intercreditor Agreement.
Trust Property: means (i) subject to the Intercreditor Agreement,
the Equipment Notes held as the property of the Applicable Trust, all
monies at any time paid thereon and all monies due and to become due
thereunder, (ii) the rights of the Applicable Trust under the Escrow
Agreement to request the Escrow Agent to withdraw from the Account funds
sufficient to enable the Applicable Trust to purchase Equipment Notes on
the
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delivery of a Prefunded Aircraft, (iii) funds from time to time deposited
in the Certificate Account and the Special Payments Account and (iv) all
rights of the Applicable Trust and the Trustee, on behalf of the
Applicable Trust, under the Intercreditor Agreement, the Note Purchase
Agreement and the Liquidity Facility, including, without limitation, the
rights of the Applicable Trust to acquire Equipment Notes under the Note
Purchase Agreement, all rights to receive certain payments under such
documents, and all monies paid to the Trustee on behalf of the Applicable
Trust pursuant to the Intercreditor Agreement or the Liquidity Facility.
Trust Supplement: has the meaning specified in the first paragraph
of this Trust Supplement.
U.S. Global Certificate: has the meaning specified in Section
5.01(b) of this Trust Supplement.
U.S. Physical Certificates: has the meaning specified in Section
5.01(d) of this Trust Supplement.
WestLB: means WESTDEUTSCHE LANDESBANK GIROZENTRALE, a German banking
institution organized under the laws of the State of North
Rhine-Westphalia, acting through its New York Branch.
ARTICLE II
THE TRUST AND THE TRUSTEE
Section 2.01. Declaration of Trust. The Trustee hereby declares the
creation of a Trust, designated the "American Airlines Pass Through Trust
2001-2B" (the "Applicable Trust"), for the benefit of the Holders of the
Applicable Certificates to be issued in respect of such Applicable Trust, and
the initial Holders of the Applicable Certificates, as grantors of such
Applicable Trust, by their respective acceptances of the Applicable
Certificates, join in the creation of such Applicable Trust with the Trustee.
The Trustee, by the execution and delivery of this Trust Supplement,
acknowledges its acceptance of all right, title and interest in and to the Trust
Property to be acquired pursuant to Section 2.02 of the Basic Agreement, the
Note Purchase Agreement and each Applicable Participation Agreement and the
Trustee will hold such right, title and interest for the benefit of all present
and future Holders of the Applicable Certificates, upon the trusts set forth in
the Basic Agreement and this Trust Supplement.
Section 2.02. Activities of Trust. (a) Other than in connection with the
transactions contemplated by this Agreement or the Note Documents, the Trustee
on behalf of the Applicable Trust shall not (i) borrow money or issue debt or
(ii) merge with another entity, reorganize, liquidate or sell its assets.
(b) The activities of the Trustee engaged in on behalf of the Applicable
Trust shall be limited to those activities authorized by this Agreement or the
Note Documents.
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ARTICLE III
THE APPLICABLE CERTIFICATES
Section 3.01. The Certificates. There is hereby created a series of
Certificates to be issued under this Agreement designated as "8.608% American
Airlines Pass Through Certificates, Series 2001-2B" (the "Initial
Certificates"). The exchange certificates which may be issued and offered in
exchange for the Initial Certificates pursuant to the Registration Rights
Agreement shall be known as the "8.608% American Airlines Exchange Pass Through
Certificates Series 2001-2B" (the "Exchange Certificates"). The Initial
Certificates and the Exchange Certificates are hereinafter defined as the
"Applicable Certificates". Each Applicable Certificate represents a fractional
undivided interest in the Applicable Trust created hereby. The Applicable
Certificates shall be the only instruments evidencing a fractional undivided
interest in the Applicable Trust.
The terms and conditions applicable to the Applicable Certificates and the
Applicable Trust are as follows:
(a) The aggregate face amount of the Applicable Certificates that
may be authenticated and delivered under this Agreement (except for
Applicable Certificates authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Applicable
Certificates pursuant to Sections 3.03, 3.04, 3.05 and 3.06 of the Basic
Agreement or upon exchange of the Initial Certificates for Exchange
Certificates) is $180,087,000.
(b) The Cut-off Date is the earlier of (i) the Delivery Period
Termination Date and (ii) the date on which a Triggering Event occurs.
(c) The Regular Distribution Dates with respect to any payment of
Scheduled Payments means April 1 and October 1 of each year, commencing on
April 1, 2002, until payment of all of the Scheduled Payments to be made
under the Equipment Notes has been made. The entire principal amount of
the Equipment Notes to be held by the Applicable Trust is scheduled for
payment on April 1, 2011.
(d) The Special Distribution Dates with respect to the Applicable
Certificates means any Business Day on which a Special Payment is to be
distributed pursuant to this Agreement.
(e) At the Escrow Agent's request under the Escrow Agreement, the
Trustee shall affix the corresponding Escrow Receipt to each Applicable
Certificate. In any event, any transfer or exchange of any Applicable
Certificate shall also effect a transfer or exchange of the related Escrow
Receipt. Prior to April 1, 2002, no transfer or exchange of any Applicable
Certificate shall be permitted unless the corresponding Escrow Receipt is
attached thereto and also is so transferred or exchanged. By acceptance of
any Applicable Certificate to which an Escrow Receipt is attached, each
Holder of such an Applicable Certificate acknowledges and accepts the
restrictions on transfer of the Escrow Receipt set forth herein and in the
Escrow Agreement.
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(f) The Applicable Certificates shall be in the form attached hereto
as Exhibit A. Subject to Section 5.01(d) of this Trust Supplement, the
Applicable Certificates shall be Book-Entry Certificates and shall be
subject to the conditions set forth in the Letter of Representations
between the Company and The Depository Trust Company, as initial Clearing
Agency, attached hereto as Exhibit E.
(g) The proceeds of the Applicable Certificates in the amount of
$54,924,423 shall be deposited in the Account and shall be used in
accordance with the Escrow Agreement and the Deposit Agreement for the
purchase of Equipment Notes described in Schedule I-A relating to
Prefunded Aircraft. The remaining proceeds of the Applicable Certificates
in the amount of $125,162,577 shall be used to acquire on the date hereof
the Equipment Notes described in Schedule I-B relating to all Aircraft
other than Prefunded Aircraft.
(h) Any Person acquiring or accepting an Applicable Certificate or
an interest therein will, by such acquisition or acceptance, be deemed to
represent and warrant to the Company, the Loan Trustees and the Trustee
that either (i) no assets of an employee benefit plan subject to Title I
of ERISA, or of an employee benefit plan or an individual retirement
account subject to Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code"), or any trust established under such plan or account,
have been used to purchase Applicable Certificates or an interest therein
or (ii) the purchase and holding of Applicable Certificates or interests
therein by such Person is exempt from the prohibited transaction
restrictions of ERISA and the Code pursuant to one or more prohibited
transaction statutory or administrative exemptions.
(i) The Applicable Certificates will have the benefit of the Deposit
Agreement and the Escrow Agreement and will be subject to the following
Intercreditor Agreement (and to the extent the terms of the Intercreditor
Agreement (including the definitions of defined terms) are inconsistent
with the terms of this Agreement, such Intercreditor Agreement shall
control): that certain Intercreditor Agreement, dated as of October 4,
2001, among State Street Bank and Trust Company of Connecticut, National
Association, as Trustee under each Trust (as defined therein), WestLB, as
Class A-1 Liquidity Provider, Class A-2 Liquidity Provider, Class B
Liquidity Provider and Class C Liquidity Provider, and State Street Bank
and Trust Company of Connecticut, National Association, as Subordination
Agent thereunder. Potential Purchasers shall have the rights upon the
occurrence of a Triggering Event set forth in Article IV hereof. The
Trustee and, by acceptance of any Applicable Certificate, each
Certificateholder thereof, agrees to be bound by all of the provisions of
the Intercreditor Agreement, including the subordination provisions of
Section 9.09 thereof.
(j) The Applicable Certificates will have the benefit of the
following Liquidity Facility: that certain Revolving Credit Agreement,
dated as of October 4, 2001, between State Street Bank and Trust Company
of Connecticut, National Association, as Subordination Agent under the
Intercreditor Agreement, as agent and trustee for the Applicable Trust,
and WestLB.
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(k) The Company may at any time purchase any of the Applicable
Certificates at any price in the open market and may hold such Applicable
Certificates to maturity.
Section 3.02. Delivery of Documents; Delivery Dates. (a) The Trustee is
hereby directed (i) to execute and deliver, on or prior to the Issuance Date,
the Intercreditor Agreement, the Escrow Agreement, each Participation Agreement
relating to an Aircraft that is not a Prefunded Aircraft, and the Note Purchase
Agreement, each in the form delivered to the Trustee by the Company, and (ii)
subject to the respective terms thereof, to perform its obligations thereunder.
On the Issuance Date, the Trustee shall duly execute, deliver, authenticate,
issue and sell Applicable Certificates in authorized denominations equaling in
the aggregate the amount set forth, with respect to the Applicable Trust, in
Schedule I to the Placement Agreement, which Applicable Certificates shall
evidence the entire ownership interest in the Applicable Trust and which amount
equals the aggregate principal amount of Equipment Notes purchased by the
Trustee on the date hereof and to be purchased by the Trustee pursuant to the
Note Purchase Agreement. Except as provided in Sections 3.03, 3.04, 3.05 and
3.06 of the Basic Agreement or upon exchange of the Initial Certificates for
Exchange Certificates, the Trustee shall not execute, authenticate or deliver
Applicable Certificates in excess of the aggregate amount specified in this
paragraph. The provisions of this Section 3.02(a) supersede and replace the
first sentence of Section 3.02(a) of the Basic Agreement, with respect to the
Applicable Trust.
(b) On or after the Issuance Date, the Company may deliver from time to
time to the Trustee a Delivery Notice relating to one or more Prefunded
Aircraft. After receipt of a Delivery Notice and in any case no later than one
Business Day prior to the Scheduled Delivery Date or Funding Date to which such
Delivery Notice relates (the "Applicable Date"), the Trustee shall (as and when
specified in the Delivery Notice) instruct the Escrow Agent to provide a Notice
of Purchase Withdrawal to the Depositary requesting (A) the withdrawal of all or
a portion of the Deposit on the Applicable Date in accordance with and to the
extent permitted by the terms of the Escrow Agreement and the Deposit Agreement
and (B) the payment of all, or a portion, of such Deposit in an amount equal in
the aggregate to the purchase price of the Equipment Notes relating to such
Prefunded Aircraft as specified in such Notice of Purchase Withdrawal, all as
shall be described in the Delivery Notice. The Trustee shall (as and when
specified in such Delivery Notice), subject to the conditions set forth in
Section 2 of the Note Purchase Agreement, enter into and perform its obligations
under the Participation Agreement specified in such Delivery Notice (the
"Applicable Participation Agreement") and cause such certificates, documents and
legal opinions relating to the Trustee to be duly delivered as required by the
Applicable Participation Agreement. If at any time prior to the Applicable Date,
the Trustee receives a notice of postponement pursuant to Section 1(d) of the
Note Purchase Agreement, then the Trustee shall give the Depositary (with a copy
to the Escrow Agent) a notice of cancellation of such Notice of Purchase
Withdrawal relating to such Deposit on such Applicable Date. Upon satisfaction
(including satisfaction by waiver, if any) of the conditions specified in the
Note Purchase Agreement and the Applicable Participation Agreement, the Trustee
shall purchase the applicable Equipment Notes with the proceeds of the
withdrawals of all or a portion of the Deposit made on the Applicable Date in
accordance with the terms of the Deposit Agreement and the Escrow Agreement. The
purchase price of such Equipment Notes shall equal the principal amount of such
Equipment Notes. Amounts withdrawn from such Deposit in excess of the purchase
price of the Equipment Notes or to the extent not applied on the Applicable Date
to the purchase price of the Equipment Notes, shall be re-deposited by the
11
Trustee with the Depositary on the Applicable Date in accordance with the terms
of the Deposit Agreement. The provisions of this Section 3.02(b) supersede and
replace the provisions of Section 2.02 of the Basic Agreement with respect to
the Equipment Notes relating to the Prefunded Aircraft to be acquired by the
Applicable Trust, and all provisions of the Basic Agreement relating to
Postponed Notes and Section 2.02 of the Basic Agreement shall not apply to the
Equipment Notes related to the Prefunded Aircraft to be acquired by the
Applicable Trust.
Section 3.03. Withdrawal of Deposits. If any portion of the Deposit
remains outstanding on the Business Day next succeeding the Cut-off Date, the
Trustee shall give the Escrow Agent notice that the Trustee's obligation to
purchase Equipment Notes under the Note Purchase Agreement has terminated and
instruct the Escrow Agent to provide the notice of Final Withdrawal to the
Depositary substantially in the form of Exhibit B to the Deposit Agreement.
Section 3.04. The Trustee. Subject to Section 3.05 of this Trust
Supplement and Section 7.15 of the Basic Agreement, the Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Trust Supplement, the Deposit Agreement, the Note Purchase
Agreement, the Participation Agreements or the Escrow Agreement or the due
execution hereof or thereof by the Company or the other parties thereto (other
than the Trustee), or for or in respect of the recitals and statements contained
herein or therein, all of which recitals and statements are made solely by the
Company, except that the Trustee hereby represents and warrants that each of
this Trust Supplement, the Basic Agreement, each Applicable Certificate, the
Intercreditor Agreement, the Note Purchase Agreement, each Participation
Agreement and the Escrow Agreement has been executed and delivered by one of its
officers who is duly authorized to execute and deliver such document on its
behalf.
Section 3.05. Representations and Warranties of the Trustee. The Trustee
hereby represents and warrants that:
(a) the Trustee has full power, authority and legal right to
execute, deliver and perform this Trust Supplement, the Intercreditor
Agreement, the Escrow Agreement, the Note Purchase Agreement and the Note
Documents to which it is, or is to become, a party and has taken all
necessary action to authorize the execution, delivery and performance by
it of this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement, the Note Purchase Agreement and the Note Documents to which it
is or is to become a party;
(b) the execution, delivery and performance by the Trustee of this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the
Note Purchase Agreement and the Note Documents to which it is or is to
become a party (i) will not violate any provision of any United States
federal law or the law of the state of the United States where it is
located governing the banking and trust powers of the Trustee or any
order, writ, judgment, or decree of any court, arbitrator or governmental
authority applicable to the Trustee or any of its assets, (ii) will not
violate any provision of the articles of association or by-laws of the
Trustee, and (iii) will not violate any provision of, or constitute, with
or without notice or lapse of time, a default under, or result in the
creation or imposition of any lien on any properties included in the Trust
Property pursuant to the provisions of any mortgage, indenture, contract,
agreement or other undertaking to which it is a party, which violation,
default or lien could reasonably be
12
expected to have an adverse effect on the Trustee's performance or ability
to perform its duties hereunder or thereunder or on the transactions
contemplated herein or therein;
(c) the execution, delivery and performance by the Trustee of this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the
Note Purchase Agreement and the Note Documents to which it is or is to
become a party will not require 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 it is
located regulating the banking and corporate trust activities of the
Trustee; and
(d) this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement, the Note Purchase Agreement and the Note Documents to which it
is or is to become a party have been, or will be, as applicable, duly
executed and delivered by the Trustee and constitute, or will constitute,
as applicable, the legal, valid and binding agreements of the Trustee,
enforceable against it in accordance with their respective terms;
provided, however, that enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and (ii) general principles of
equity.
Section 3.06. Trustee Liens. The Trustee in its individual capacity
agrees, in addition to the agreements contained in Section 7.17 of the Basic
Agreement, that it will at its own cost and expense promptly take any action as
may be necessary to duly discharge and satisfy in full any Trustee's Liens on or
with respect to the Trust Property which are attributable to the Trustee in its
individual capacity and which are unrelated to the transactions contemplated by
the Intercreditor Agreement or the Note Purchase Agreement.
ARTICLE IV
DEFAULT
Section 4.01. Purchase Rights of Certificateholders. (a) By acceptance of
its Applicable Certificate, each Applicable Certificateholder agrees that at any
time after the occurrence and during the continuation of a Triggering Event,
(i) each Applicable Certificateholder shall have the right (which
shall not expire upon any purchase of the Class A-1 Certificates pursuant
to the Class A-2 Trust Agreement or the Class A-2 Certificates pursuant to
the Class A-1 Trust Agreement) to purchase, for the purchase price set
forth in the Class A-1 Trust Agreement and the Class A-2 Trust Agreement,
respectively, all, but not less than all, of the Class A-1 Certificates
and the Class A-2 Certificates upon ten days' prior written notice to the
Class A-1 Trustee, the Class A-2 Trustee and each other Applicable
Certificateholder, provided that (A) if prior to the end of such ten-day
period any other Applicable Certificateholder notifies such purchasing
Applicable Certificateholder that such other Applicable Certificateholder
wants to participate in such purchase, then such other Applicable
Certificateholder may join with the purchasing Applicable
Certificateholder to purchase all, but not less than all, of the Class A-1
Certificates and the Class A-2 Certificates pro
13
rata based on the Fractional Undivided Interest in the Applicable Trust
held by each such Applicable Certificateholder and (B) if prior to the end
of such ten-day period any other Applicable Certificateholder fails to
notify the purchasing Applicable Certificateholder of such other
Applicable Certificateholder's desire to participate in such a purchase,
then such other Applicable Certificateholder shall lose its right to
purchase the Class A-1 Certificates and the Class A-2 Certificates
pursuant to this Section 4.01(a)(i);
(ii) each Class C Certificateholder (other than the Company or any
Affiliate of the Company) shall have the right (which shall not expire
upon any purchase of the Class A-1 Certificates pursuant to the Class A-2
Trust Agreement, the Class A-2 Certificates pursuant to the Class A-1
Trust Agreement or the Class A-1 Certificates and Class A-2 Certificates
pursuant to clause (i) above) to purchase all, but not less than all, of
the Class A-1 Certificates, the Class A-2 Certificates and the Class B
Certificates upon ten days' prior written notice to the Class A-1 Trustee,
the Class A-2 Trustee, the Trustee and each other Class C
Certificateholder, provided that (A) if prior to the end of such ten-day
period any other Class C Certificateholder (other than the Company or any
Affiliate of the Company) notifies such purchasing Class C
Certificateholder that such other Class C Certificateholder wants to
participate in such purchase, then such other Class C Certificateholder
may join with the purchasing Class C Certificateholder to purchase all,
but not less than all, of the Applicable Certificates, Class A-1
Certificates and the Class A-2 Certificates pro rata based on the
Fractional Undivided Interest in the Class C Trust held by each such Class
C Certificateholder and (B) if prior to the end of such ten-day period any
other Class C Certificateholder fails to notify the purchasing Class C
Certificateholder of such other Class C Certificateholder's desire to
participate in such a purchase, then such other Class C Certificateholder
shall lose its right to purchase the Class A-1 Certificates, the Class A-2
Certificates and the Applicable Certificates pursuant to this Section
4.01(a)(ii); and
(iii) each Class D Certificateholder (other than the Company or any
Affiliate of the Company) shall have the right (which shall not expire
upon any purchase of the Class A-1 Certificates pursuant to the Class A-2
Trust Agreement, the Class A-2 Certificates pursuant to the Class A-1
Trust Agreement or the Class A-1 Certificates, the Class A-2 Certificates
or the Applicable Certificates pursuant to clause (i) or (ii) above) to
purchase all, but not less than all, of the Applicable Certificates, the
Class A-1 Certificates, the Class A-2 Certificates and the Class C
Certificates upon ten days' prior written notice to the Class A-1 Trustee,
the Class A-2 Trustee, the Trustee, the Class C Trustee and each other
Class D Certificateholder, provided that (A) if prior to the end of such
ten-day period any other Class D Certificateholder (other than the Company
or any Affiliate of the Company) notifies such purchasing Class D
Certificateholder that such other Class D Certificateholder wants to
participate in such purchase, then such other Class D Certificateholder
may join with the purchasing Class D Certificateholder to purchase all,
but not less than all, of the Applicable Certificates, the Class A-1
Certificates, the Class A-2 Certificates and the Class C Certificates pro
rata based on the Fractional Undivided Interest in the Class D Trust held
by each such Class D Certificateholder and (B) if prior to the end of such
ten-day period any other Class D Certificateholder fails to notify the
purchasing Class D Certificateholder of such other Class D
Certificateholder's desire to participate in such a purchase, then such
other Class D Certificateholder shall lose its
14
right to purchase the Applicable Certificates, the Class A-1 Certificates,
the Class A-2 Certificates and the Class C Certificates pursuant to this
Section 4.01(a)(iii).
(iv) each Class E Certificateholder (if Class E Certificates are
issued) (other than the Company or any Affiliate of the Company) shall
have the right (which shall not expire upon any purchase of the Class A-1
Certificates pursuant to the Class A-2 Trust Agreement, the Class A-2
Certificates pursuant to the Class A-1 Trust Agreement, or the Class A-1
Certificates, the Class A-2 Certificates, the Applicable Certificates or
the Class C Certificates pursuant to clause (i), (ii) or (iii) above) to
purchase all, but not less than all, of the Applicable Certificates, the
Class A-1 Certificates, the Class A-2 Certificates, the Class C
Certificates and the Class D Certificates upon ten days' prior written
notice to the Trustee, the Class A-1 Trustee, the Class A-2 Trustee, the
Class C Trustee, the Class D Trustee and each other Class E
Certificateholder, provided that (A) if prior to the end of such ten-day
period any other Class E Certificateholder (other than the Company or any
Affiliate of the Company) notifies such purchasing Class E
Certificateholder that such other Class E Certificateholder wants to
participate in such purchase, then such other Class E Certificateholder
may join with the purchasing Class E Certificateholder to purchase all,
but not less than all, of the Applicable Certificates, the Class A-1
Certificates, the Class A-2 Certificates, the Class C Certificates and the
Class D Certificates pro rata based on the Fractional Undivided Interest
in the Class E Trust held by each such Class E Certificateholder and (B)
if prior to the end of such ten-day period any other Class E
Certificateholder fails to notify the purchasing Class E Certificateholder
of such other Class E Certificateholder's desire to participate in such a
purchase, then such other Class E Certificateholder shall lose its right
to purchase the Applicable Certificates, the Class A-1 Certificates, the
Class A-2 Certificates, the Class C Certificates and the Class D
Certificates pursuant to this Section 4.01(a)(iv).
The purchase price with respect to the Applicable Certificates shall be
equal to the Pool Balance of the Applicable Certificates, together with accrued
and unpaid interest in respect thereof to the date of such purchase, without
premium, but including any other amounts then due and payable to the Applicable
Certificateholders under this Agreement, the Intercreditor Agreement, the Escrow
Agreement or any Note Document or on or in respect of the Applicable
Certificates; provided; however, that if such purchase occurs after (x) a record
date specified in Section 2.03 of the Escrow Agreement relating to the
distribution of unused Deposits and/or accrued and unpaid interest on Deposits
and prior to or on the related distribution date under the Escrow Agreement,
such purchase price shall be reduced by the aggregate amount of unused Deposits
and/or interest to be distributed under the Escrow Agreement (which deducted
amounts shall remain distributable to, and may be retained by, the Applicable
Certificateholders as of such record date) or (y) a Record Date relating to any
Distribution Date, such purchase price shall be reduced by the amount to be
distributed hereunder on such related Distribution Date (which deducted amounts
shall remain distributable to, and may be retained by, the Applicable
Certificateholders as of such Record Date); provided, further that no such
purchase of Applicable Certificates pursuant to this Section 4.01(a) shall be
effective unless the purchaser(s) shall certify to the Trustee that
contemporaneously with such purchase, such purchaser(s) is purchasing, pursuant
to the terms of this Agreement and the Intercreditor Agreement, all of the
Applicable Certificates, the Class A-1 Certificates, the Class A-2 Certificates,
the Class C Certificates and the Class D Certificates that are senior to the
securities held by such purchaser(s). Each payment
15
of the purchase price of the Applicable Certificates referred to in the first
sentence hereof shall be made to an account or accounts designated by the
Trustee and each such purchase shall be subject to the terms of this Section
4.01(a). Each Applicable Certificateholder agrees by its acceptance of its
Certificate that it will, upon payment from such Class C Certificateholder(s),
Class D Certificateholder(s) or Class E Certificateholder(s), as the case may
be, of the purchase price set forth in the first sentence of this paragraph,
forthwith sell, assign, transfer and convey to the purchaser(s) thereof (without
recourse, representation or warranty of any kind except as to its own acts) all
of the right, title, interest and obligation of such Applicable
Certificateholder in the Agreement, the Escrow Agreement, the Deposit Agreement,
the Intercreditor Agreement, the Liquidity Facility, the Note Purchase
Agreement, the Note Documents and all Applicable Certificates and Escrow
Receipts held by such Applicable Certificateholder (excluding all right, title
and interest under any of the foregoing to the extent such right, title or
interest is with respect to an obligation not then due and payable as respects
any action or inaction or state of affairs occurring prior to such sale) and the
purchaser(s) shall assume all of such Applicable Certificateholder's obligations
under the Agreement, the Escrow Agreement, the Deposit Agreement, the
Intercreditor Agreement, the Liquidity Facility, the Note Purchase Agreement,
the Note Documents and all such Applicable Certificates and Escrow Receipts. The
Applicable Certificates will be deemed to be purchased on the date payment of
the purchase price is made notwithstanding the failure of any Applicable
Certificateholder to deliver any Applicable Certificate and, upon such a
purchase, (i) the only rights of the Applicable Certificateholders will be to
deliver the Applicable Certificates and (ii) if the purchaser(s) shall so
request, each such Applicable Certificateholder will comply with all the
provisions of Section 3.04 of the Basic Agreement to enable new Applicable
Certificates to be issued to the purchaser(s) in such denominations as it shall
request. All charges and expenses in connection with the issuance of any such
new Applicable Certificates shall be borne by the purchaser(s) thereof.
As used in this Section 4.01(a), the terms "Class A-1 Certificate", "Class
A-1 Certificateholder", "Class A-1 Trust", "Class A-1 Trust Agreement", "Class
A-1 Trustee", "Class A-2 Certificate", "Class A-2 Certificateholder", "Class A-2
Trust", "Class A-2 Trust Agreement", "Class A-2 Trustee", "Class C Certificate",
"Class C Certificateholder", "Class C Trust", "Class C Trustee", "Class D
Certificate", "Class D Certificateholder", "Class D Trust", "Class D Trustee",
"Class E Certificate", "Class E Certificateholder", "Class E Trust", "Class E
Trust Agreement", and "Class E Trustee" shall have the respective meanings
assigned to such terms in the Intercreditor Agreement.
(b) This Section 4.01 supplements and, to the extent inconsistent
with any provision of Section 6.01(d) of the Basic Agreement, replaces the
provisions of Section 6.01(d) of the Basic Agreement. Notwithstanding
anything to the contrary set forth herein or in any Operative Agreement,
the provisions of this Section 4.01 may not be amended in any manner
without the consent of each Class A-1 Certificateholder, Class A-2
Certificateholder, Class C Certificateholder, Class D Certificateholder,
or Class E Certificateholder, if any, that would be adversely affected
thereby.
16
ARTICLE V
THE CERTIFICATES
Section 5.01. Additions to Article III of the Basic Agreement. In addition
to the provisions of Article III of the Basic Agreement, the following
provisions shall apply to the Applicable Trust:
(a) The Initial Certificates will be issued in minimum denominations
of $100,000 or integral multiples of $1,000 in excess thereof. The
Exchange Certificates will be issued in denominations of $1,000 or
integral multiples thereof. Each Exchange Certificate shall be dated the
date of its authentication;
(b) Initial Certificates offered and sold in reliance on Rule 144A
shall be issued initially in the form of one or more global Certificates
in definitive, fully registered form without interest coupons,
substantially in the form set forth as Exhibit A hereto (the "U.S. Global
Certificate"), duly executed and authenticated by the Trustee as
hereinafter provided. The U.S. Global Certificate will be registered in
the name of a nominee for DTC and deposited with the Trustee, as custodian
for DTC. The aggregate principal amount of the U.S. Global Certificate may
from time to time be increased or decreased by adjustments made on the
records of DTC or its nominee, or of the Trustee, as custodian for DTC or
its nominee, as hereinafter provided;
(c) Initial Certificates offered and sold in offshore transactions
in reliance on Regulation S shall be issued initially in the form of one
or more temporary global Certificates in definitive, fully registered form
without interest coupons, substantially in the form set forth as Exhibit A
hereto (the "Temporary Offshore Global Certificate") duly executed and
authenticated by the Trustee as hereinafter provided. The Temporary
Offshore Global Certificate will be registered in the name of a nominee of
DTC for credit to the account of the Agent Members acting as depositaries
for Euroclear and Clearstream and deposited with the Trustee as custodian
for DTC. At any time following November 12, 2001 (the "Offshore
Certificates Exchange Date"), upon receipt by the Trustee of a certificate
substantially in the form of Exhibit B hereto, a single permanent global
Certificate in fully registered form substantially in the form set forth
in Exhibit A (the "Permanent Offshore Global Certificate"; and together
with the Temporary Offshore Global Certificate, the "Offshore Global
Certificates"), duly executed and authenticated by the Trustee as
hereinafter provided, shall be registered in the name of a nominee for DTC
and deposited with the Trustee, as custodian for DTC, and the Registrar
shall reflect on its books and records the date of such transfer and a
decrease in the principal amount of any Temporary Offshore Global
Certificate in an amount equal to the principal amount of the beneficial
interest in such Temporary Offshore Global Certificate transferred. The
U.S. Global Certificate and the Offshore Global Certificates are sometimes
referred to as the "Global Certificates";
(d) Initial Certificates offered and sold to Institutional
Accredited Investors shall be issued in the form of permanent certificated
Certificates in registered form in substantially the form set forth as
Exhibit A hereto (the "U.S. Physical Certificates").
17
Certificates issued pursuant to Section 5.04(b) in exchange for interests
in any Offshore Global Certificate shall be in the form of permanent
certificated Certificates in fully registered form substantially in the
form set forth in Exhibit A (the "Offshore Physical Certificates"). The
Offshore Physical Certificates and U.S. Physical Certificates are
sometimes collectively herein referred to as the "Physical Certificates";
(e) The Exchange Certificates shall be issued in the form of one or
more global Certificates substantially in the form of Exhibit A hereto
(each, a "Global Exchange Certificate"), except that (i) the Private
Placement Legend (hereinafter defined) shall be omitted and (ii) such
Exchange Certificates shall contain such appropriate insertions,
omissions, substitutions and other variations from the form set forth in
Exhibit A hereto relating to the nature of the Exchange Certificates as
the Responsible Officer of the Trustee executing such Exchange
Certificates on behalf of the Trust may determine, as evidenced by such
officer's execution on behalf of the Trust of such Exchange Certificates.
Such Global Exchange Certificates shall be in registered form and be
registered in the name of DTC and deposited with the Trustee, at its
Corporate Trust Office, as custodian for DTC. The aggregate principal
amount of any Global Exchange Certificate may from time to time be
increased or decreased by adjustments made on the records of the Trustee,
as custodian for DTC for such Global Exchange Certificate, which
adjustments shall be conclusive as to the aggregate principal amount of
any such Global Exchange Certificate. Subject to clause (i) and (ii) of
the first sentence of this Section 5.01(e), the terms hereof applicable to
U.S. Global Certificates and/or Global Certificates shall apply to the
Global Exchange Certificates, mutatis mutandis;
(f) The definitive Applicable Certificates shall be in fully
registered form and shall be typed, printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any
other manner, all as determined by the officers executing such Applicable
Certificates, as evidenced by their execution of such Applicable
Certificates.
Section 5.02. Restrictive Legends. (a) Subject to Section 5.05, unless and
until (i) an Initial Certificate is sold under an effective Shelf Registration
Statement or (ii) an Initial Certificate is exchanged for an Exchange
Certificate pursuant to an effective Exchange Offer Registration Statement, in
each case as provided for in the Registration Rights Agreement, each Global
Certificate (other than the Permanent Offshore Global Certificate) and each U.S.
Physical Certificate shall bear the following legend (the "Private Placement
Legend") on the face thereof:
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS, AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, ANY PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT), (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN
18
RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS CERTIFICATE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT, PRIOR
TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
CERTIFICATES UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION) RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT (A) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (B) INSIDE THE UNITED STATES TO AN INSTITUTIONAL
ACCREDITED INVESTOR ACQUIRING $100,000 OR MORE AGGREGATE PRINCIPAL AMOUNT
OF SUCH CERTIFICATE, THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS CERTIFICATE (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (C) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER), OR (F) TO AMERICAN AIRLINES, INC. OR ANY SUBSIDIARY THEREOF;
(3) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(E)
ABOVE), IT WILL FURNISH TO THE TRUSTEE SUCH CERTIFICATIONS, LEGAL OPINIONS
OR OTHER INFORMATION AS THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND (4) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS CERTIFICATE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS CERTIFICATE PRIOR TO
THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
CERTIFICATES UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR OR IS A PURCHASER
19
WHO IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH
TO THE TRUSTEE AND IF REQUESTED, AMERICAN AIRLINES, INC., SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE
EARLIER OF THE TRANSFER OF THE CERTIFICATES PURSUANT TO CLAUSE 2(E) ABOVE
OR UPON ANY TRANSFER OF THE CERTIFICATES UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION). AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE PASS
THROUGH TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE
FOREGOING RESTRICTIONS.](1)
(b) Each Global Certificate shall also bear the following legend on the
face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN
----------
(1) Not to be included on the face of the Permanent Offshore Global
Certificate.
20
SECTIONS 5.04 AND 5.05 OF THE TRUST SUPPLEMENT TO THE PASS THROUGH TRUST
AGREEMENT REFERRED TO HEREIN.
(c) Each Certificate shall bear the following legend on the face thereof:
BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT EITHER (A) NO ASSETS
OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR OF A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), HAVE BEEN USED TO PURCHASE THIS CERTIFICATE OR (B) THE PURCHASE
AND HOLDING OF THIS CERTIFICATE ARE EXEMPT FROM THE PROHIBITED TRANSACTION
RESTRICTIONS OF ERISA AND THE CODE PURSUANT TO ONE OR MORE PROHIBITED
TRANSACTION STATUTORY OR ADMINISTRATIVE EXEMPTIONS.
Section 5.03. Transfer and Exchange. An Applicable Certificateholder may
transfer an Applicable Certificate by written application to the Registrar
stating the name of the proposed transferee and otherwise complying with the
terms of this Agreement, including providing a written certificate or other
evidence of compliance with any restrictions on transfer. No such transfer shall
be effected until, and such transferee shall succeed to the rights of an
Applicable Certificateholder only upon, final acceptance and registration of the
transfer by the Registrar in the Register. Prior to the registration of any
transfer by an Applicable Certificateholder as provided herein, the Trustee
shall treat the person in whose name the Applicable Certificate is registered as
the owner thereof for all purposes, and the Trustee shall not be affected by
notice to the contrary. Furthermore, DTC shall, by acceptance of a Global
Certificate, agree that transfers of beneficial interests in such Global
Certificate may be effected only through a book-entry system maintained by DTC
(or its agent), and that ownership of a beneficial interest in the Certificate
shall be required to be reflected in a book entry. When Applicable Certificates
are presented to the Registrar with a request to register the transfer or to
exchange them for an equal face amount of Applicable Certificates of other
authorized denominations, the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transactions are met. To
permit registrations of transfers and exchanges in accordance with the terms,
conditions and restrictions hereof, the Trustee shall execute and authenticate
Applicable Certificates at the Registrar's request.
Section 5.04. Book-entry Provisions for U.S. Global Certificate and
Offshore Global Certificates. (a) Members of, or participants in, DTC ("Agent
Members") shall have no rights under this Agreement with respect to any Global
Certificate held on their behalf by DTC, or the Trustee as its custodian, and
DTC may be treated by the Trustee and any agent of the Trustee as the absolute
owner of such Global Certificate for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Trustee or any agent of the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by DTC or shall impair, as between DTC and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a holder of any Applicable Certificate. Upon the issuance of any
Global
21
Certificate, the Registrar or its duly appointed agent shall record a nominee of
DTC as the registered holder of such Global Certificate.
(b) Transfers of any Global Certificate shall be limited to transfers of
such Global Certificate or Offshore Global Certificate in whole, but not in
part, to nominees of DTC, its successor or such successor's nominees. Beneficial
interests in the U.S. Global Certificate and any Offshore Global Certificate may
be transferred in accordance with the rules and procedures of DTC and the
provisions of Section 5.05. Beneficial interests in the U.S. Global Certificate
or an Offshore Global Certificate shall be delivered to all beneficial owners in
the form of U.S. Physical Certificates or Offshore Physical Certificates, as the
case may be, if (i) DTC notifies the Trustee that it is unwilling or unable to
continue as depositary for the U.S. Global Certificate or such Offshore Global
Certificate, as the case may be, and a successor depositary is not appointed by
the Trustee within 90 days of such notice or (ii) an Event of Default has
occurred and Applicable Certificateholders with fractional undivided interests
aggregating not less than a majority in interest in the Applicable Trust advise
the Trustee, the Company and DTC through Agent Members in writing that the
continuation of a book-entry system through DTC (or a successor thereto) is no
longer in the Applicable Certificateholders' best interests.
(c) Any beneficial interest in one of the Global Certificates that is
transferred to a Person who takes delivery in the form of an interest in the
other Global Certificate will, upon such transfer, cease to be an interest in
such Global Certificate and become an interest in the other Global Certificate
and, accordingly, will thereafter be subject to all transfer restrictions, if
any, and other procedures applicable to beneficial interests in such other
Global Certificate for as long as it remains such an interest.
(d) In connection with the transfer of the entire U.S. Global Certificate
or an entire Offshore Global Certificate to the beneficial owners thereof
pursuant to paragraph (b) of this Section 5.04, such U.S. Global Certificate or
Offshore Global Certificate, as the case may be, shall be deemed to be
surrendered to the Trustee for cancellation, and the Trustee shall execute,
authenticate and deliver, to each beneficial owner identified by DTC in exchange
for its beneficial interest in such U.S. Global Certificate or Offshore Global
Certificate, as the case may be, an equal aggregate principal amount of U.S.
Physical Certificates or Offshore Physical Certificates, as the case may be, of
authorized denominations.
(e) Any U.S. Physical Certificate delivered in exchange for an interest in
the U.S. Global Certificate pursuant to paragraph (b) of this Section 5.04
shall, except as otherwise provided by paragraph (f) of Section 5.05, bear the
Private Placement Legend.
(f) Any Offshore Physical Certificate delivered in exchange for an
interest in an Offshore Global Certificate pursuant to paragraph (b) of this
Section shall, except as otherwise provided by paragraph (f) of Section 5.05,
bear the applicable legend regarding transfer restrictions set forth in Section
5.02(a).
(g) The registered holder of the U.S. Global Certificate or any Offshore
Global Certificate may grant proxies and otherwise authorize any Person,
including Agent Members and Persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take under this
Agreement or the Applicable Certificates.
22
Section 5.05. Special Transfer Provisions. Unless and until (i) an Initial
Certificate is sold under an effective Shelf Registration Statement, or (ii) an
Initial Certificate is exchanged for an Exchange Certificate pursuant to an
effective Exchange Offer Registration Statement, in each case pursuant to the
Registration Rights Agreement, the following provisions shall apply to such
Initial Certificates:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of an Applicable Certificate to any Institutional
Accredited Investor which is not a QIB (excluding transfers to or by
Non-U.S. Persons):
(i) The Registrar shall register the transfer of any
Applicable Certificate, whether or not such Applicable Certificate
bears the Private Placement Legend, if (x) the requested transfer is
after the time period referred to in Rule 144(k) under the
Securities Act as in effect with respect to such transfer or (y) the
proposed transferee has delivered to the Registrar a letter
substantially in the form of Exhibit D hereto and the aggregate
principal amount of the Applicable Certificates being transferred is
at least $100,000.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Certificate, upon receipt by
the Registrar of (x) the documents, if any, required by paragraph
(i) and (y) instructions given in accordance with DTC's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date of the transfer and a decrease in the principal
amount of such U.S. Global Certificate in an amount equal to the
principal amount of the beneficial interest in such U.S. Global
Certificate to be transferred, and the Company shall execute, and
the Trustee shall authenticate and deliver to the transferor or at
its direction, one or more U.S. Physical Certificates of like tenor
and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of an Initial
Certificate to a QIB (excluding Non-U.S. Persons):
(i) If the Initial Certificate to be transferred consists of
U.S. Physical Certificates or an interest in any Temporary Offshore
Global Certificate, the Registrar shall register the transfer if
such transfer is being made by a proposed transferor who has checked
the box provided for on the form of Initial Certificate stating, or
has otherwise advised the Trustee and the Registrar in writing, that
the sale has been made in compliance with the provisions of Rule
144A to a transferee who has signed the certification provided for
on the form of Initial Certificate stating, or has otherwise advised
the Trustee and the Registrar in writing, that it is purchasing the
Initial Certificate for its own account or an account with respect
to which it exercises sole investment discretion and that it, or the
Person on whose behalf it is acting with respect to any such
account, is a QIB within the meaning of Rule 144A, and is aware that
the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information
23
regarding the Trust and/or the Company as it has requested pursuant
to Rule 144A or has determined not to request such information and
that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A.
(ii) Upon receipt by the Registrar of the documents referred
to in clause (i) above and instructions given in accordance with
DTC's and the Registrar's procedures therefor, the Registrar shall
reflect on its books and records the date of such transfer and an
increase in the principal amount of the U.S. Global Certificate in
an amount equal to the principal amount of the U.S. Physical
Certificates or interests in the Temporary Offshore Global
Certificate, as the case may be, being transferred, and the Trustee
shall cancel such Physical Certificates or decrease the amount of
such Temporary Offshore Global Certificate so transferred.
(c) Transfers of Interests in the Permanent Offshore Global
Certificate or Offshore Physical Certificates. The Registrar shall
register any transfer of interests in the Permanent Offshore Global
Certificate or Offshore Physical Certificates without requiring any
additional certification.
(d) Transfers to Non-U.S. Persons at any Time. The following
provisions shall apply with respect to any registration of any transfer of
an Initial Certificate to a Non-U.S. Person:
(i) Prior to the Offshore Certificates Exchange Date, the
Registrar shall register any proposed transfer of an Initial
Certificate to a Non-U.S. Person upon receipt of a certificate
substantially in the form set forth as Exhibit C hereto from the
proposed transferor.
(ii) On and after the Offshore Certificates Exchange Date, the
Registrar shall register any proposed transfer to any Non-U.S.
Person if the Initial Certificate to be transferred is a U.S.
Physical Certificate or an interest in the U.S. Global Certificate,
upon receipt of a certificate substantially in the form of Exhibit C
from the proposed transferor. The Registrar shall promptly send a
copy of such certificate to the Company.
(iii) (A) Upon receipt by the Registrar of (x) the documents,
if any, required by paragraph (ii) and (y) instructions in
accordance with DTC's and the Registrar's procedures, the Registrar
shall reflect on its books and records the date of such transfer and
a decrease in the principal amount of such U.S. Global Certificate
in an amount equal to the principal amount of the beneficial
interest in such U.S. Global Certificate to be transferred, and (B)
upon receipt by the Registrar of instructions given in accordance
with DTC's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the
principal amount of the Offshore Global Certificate in an amount
equal to the principal amount of the U.S. Physical Certificate or
the U.S. Global Certificate, as the case may be, to be transferred,
and the Trustee shall cancel the
24
Physical Certificate, if any, so transferred or decrease the amount
of such U.S. Global Certificate.
(e) Private Placement Legend. Upon the transfer, exchange or
replacement of Applicable Certificates not bearing the Private Placement
Legend, the Registrar shall deliver Applicable Certificates that do not
bear the Private Placement Legend. Upon the transfer, exchange or
replacement of Applicable Certificates bearing the Private Placement
Legend, the Registrar shall deliver only Applicable Certificates that bear
the Private Placement Legend unless either (i) the circumstances
contemplated by paragraph (a)(i)(x) or (e)(ii) of this Section 5.05 exist
or (ii) there is delivered to the Registrar an Opinion of Counsel to the
effect that neither such legend nor the related restrictions on transfer
are required in order to maintain compliance with the provisions of the
Securities Act.
(f) General. By its acceptance of any Applicable Certificate bearing
the Private Placement Legend, each Holder of such an Applicable
Certificate acknowledges the restrictions on transfer of such Applicable
Certificate set forth in this Agreement and agrees that it will transfer
such Applicable Certificate only as provided in this Agreement. The
Registrar shall not register a transfer of any Applicable Certificate
unless such transfer complies with the restrictions on transfer of such
Applicable Certificate set forth in this Agreement. In connection with any
transfer of Applicable Certificates, each Applicable Certificateholder
agrees by its acceptance of the Applicable Certificates to furnish the
Registrar or the Trustee such certifications, legal opinions or other
information as either of them may reasonably require to confirm that such
transfer is being made pursuant to an exemption from, or a transaction not
subject to, the registration requirements of the Securities Act; provided
that the Registrar shall not be required to determine the sufficiency of
any such certifications, legal opinions or other information.
Until such time as no Applicable Certificates remain Outstanding, the
Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 5.04 or this Section 5.05. The
Trustee, if not the Registrar at such time, shall have the right to inspect and
make copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Registrar.
ARTICLE VI
STATEMENTS TO CERTIFICATEHOLDERS
Section 6.01. Statements to Applicable Certificateholders. (a) On each
Distribution Date, the Trustee will include with each distribution to Applicable
Certificateholders of a Scheduled Payment or Special Payment, as the case may
be, a statement setting forth the information provided below (in the case of a
Special Payment, reflecting in part the information provided by the Escrow
Paying Agent under the Escrow Agreement). Such statement shall set forth (per
$1,000 face amount Applicable Certificate as to (ii), (iii), (iv) and (v) below)
the following information:
25
(i) the aggregate amount of funds distributed on such
Distribution Date under the Agreement and under the Escrow
Agreement, indicating the amount allocable to each source;
(ii) the amount of such distribution under the Agreement
allocable to principal and the amount allocable to premium, if any;
(iii) the amount of such distribution under the Agreement
allocable to interest;
(iv) the amount of such distribution under the Escrow
Agreement allocable to interest;
(v) the amount of such distribution under the Escrow Agreement
allocable to unused Deposits, if any; and
(vi) the Pool Balance and the Pool Factor.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the
Trustee shall furnish to each Person who at any time during such calendar
year was an Applicable Certificateholder of record a statement containing
the sum of the amounts determined pursuant to clauses (a)(i), (a)(ii),
(a)(iii), (a)(iv) and (a)(v) above for such calendar year or, in the event
such Person was an Applicable Certificateholder of record during a portion
of such calendar year, for the applicable portion of such year, and such
other items as are readily available to the Trustee and which an
Applicable Certificateholder may reasonably request as necessary for the
purpose of such Applicable Certificateholder's preparation of its federal
income tax returns. Such statement and such other items shall be prepared
on the basis of information supplied to the Trustee by the Clearing Agency
Participants and shall be delivered by the Trustee to such Clearing Agency
Participants to be available for forwarding by such Clearing Agency
Participants to the holders of interests in the Applicable Certificates.
(c) Promptly following (i) the Delivery Period Termination Date, if
there has been any change in the information set forth in clauses (x), (y)
and (z) below from that set forth in page 31 of the Offering Memorandum,
and (ii) any early redemption or purchase of, or any default in the
payment of principal or interest in respect of, any of the Equipment Notes
held in the Applicable Trust, or any Final Withdrawal, the Trustee shall
furnish to Applicable Certificateholders of record on such date a
statement setting forth (x) the expected Pool Balances for each subsequent
Regular Distribution Date following the Delivery Period Termination Date,
(y) the related Pool Factors for such Regular Distribution Dates and (z)
the expected principal distribution schedule of the Equipment Notes, in
the aggregate, held as Trust Property at the date of such notice. With
respect to the Applicable Certificates registered in the name of a
Clearing Agency, on the Delivery Period Termination Date, the Trustee will
request from such Clearing Agency a securities position listing setting
forth the names of all Clearing Agency Participants reflected on such
Clearing Agency's books as holding interests in the Applicable
Certificates on such
26
date. The Trustee will mail to each such Clearing Agency Participant the
statement described above and will make available additional copies as
requested by such Clearing Agency Participant for forwarding to holders of
interests in the Applicable Certificates.
(d) This Section 6.01 supersedes and replaces Section 4.03 of the
Basic Agreement, with respect to the Applicable Trust.
ARTICLE VII
ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS
Section 7.01. Supplemental Agreements Without Consent of Applicable
Certificateholders. Without limitation of Section 9.01 of the Basic Agreement,
under the terms of, and subject to the limitations contained in, Section 9.01 of
the Basic Agreement, without the consent of any Applicable Certificateholder,
the Company may (but will not be required to), and the Trustee (subject to
Section 9.03 of the Basic Agreement) shall, at the Company's request, at any
time and from time to time, enter into one or more agreements supplemental to
the Escrow Agreement, the Note Purchase Agreement or the Deposit Agreement, (i)
for any of the purposes set forth in clauses (1) through (15) of such Section
9.01, and said clauses shall be deemed to refer to the Escrow Agreement, the
Note Purchase Agreement or the Deposit Agreement where appropriate or (ii) to
the extent necessary in connection with a refunding of the Class C Certificates
and the Class D Certificates in accordance with Exhibit A to the Intercreditor
Agreement.
Section 7.02. Supplemental Agreements with Consent of Applicable
Certificateholders. Without limitation of Section 9.02 of the Basic Agreement,
the provisions of Section 9.02 of the Basic Agreement shall apply to agreements
or amendments for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Escrow Agreement, the Deposit
Agreement or the Note Purchase Agreement or modifying in any manner the rights
and obligations of the Applicable Certificateholders under the Escrow Agreement,
the Deposit Agreement or the Note Purchase Agreement; provided that the
provisions of Section 9.02(a) of the Basic Agreement shall be deemed to include
reductions in any manner of, or delay in the timing of, any receipt by the
Applicable Certificateholders of payments upon the Deposit.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Final Termination Date. The respective obligations and
responsibilities of the Company and the Trustee created hereby and the
Applicable Trust created hereby shall terminate upon the distribution to all
Certificateholders of Applicable Certificates and the Trustee of all amounts
required to be distributed to them pursuant to this Agreement and the
disposition of all property held as part of the Trust Property; provided,
however, that in no event shall the Trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, Xx., the father of Xxxx X. Xxxxxxx, former President of the
United States, living on the date of this Trust Supplement.
27
Section 8.02. Basic Agreement Ratified. Except and so far as herein
expressly provided, all of the provisions, terms and conditions of the Basic
Agreement are in all respects ratified and confirmed; and the Basic Agreement
and this Trust Supplement shall be taken, read and construed as one and the same
instrument.
Section 8.03. Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN THE
STATE OF NEW YORK AND THIS AGREEMENT AND THE APPLICABLE CERTIFICATES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER AND THEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 8.04. Counterparts. This Trust Supplement may be executed in any
number of counterparts (and each of the parties shall not be required to execute
the same counterpart). Each counterpart of this Trust Supplement including a
signature page or pages executed by each of the parties hereto shall be an
original counterpart of this Trust Supplement, but all of such counterparts
together shall constitute one instrument.
Section 8.05. Intention of Parties. The parties hereto intend that the
Applicable Trust be classified for United States federal income tax purposes as
a grantor trust under Part 1E of Chapter 1J of Subtitle A of the Internal
Revenue Code of 1986, as amended, and not as a trust or association taxable as a
corporation or as a partnership. Each Applicable Certificateholder of an
Applicable Certificate, by its acceptance of its Applicable Certificate or a
beneficial interest therein, agrees to treat the Applicable Trust as a grantor
trust for all United States federal, state and local income tax purposes. The
Trustee shall not be authorized or empowered to do anything that would cause the
Applicable Trust to fail to qualify as a grantor trust for such tax purposes
(including as subject to this restriction, acquiring any Aircraft by bidding the
Equipment Notes relating thereto or otherwise, or taking any action with respect
to any such Aircraft once acquired).
28
IN WITNESS WHEREOF, the parties have caused this Trust Supplement to be
duly executed by their respective officers thereto duly authorized as of the
date first written above.
AMERICAN AIRLINES, INC.
By:_____________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Trustee
By:_____________________________________
Name:
Title:
EXHIBIT A to
TRUST SUPPLEMENT NO. 2001-2B
FORM OF CERTIFICATE
REGISTERED
No. ______________
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS, AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, ANY PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT), (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL
ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
CERTIFICATE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT; (2) AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THE CERTIFICATES UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION) RESELL OR OTHERWISE TRANSFER THIS
CERTIFICATE EXCEPT (A) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (B) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING $100,000 OR MORE AGGREGATE PRINCIPAL
AMOUNT OF SUCH CERTIFICATE, THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS CERTIFICATE (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE), (C) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER), OR (F) TO AMERICAN AIRLINES, INC. OR
ANY SUBSIDIARY THEREOF; (3) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE 2(E) ABOVE), IT WILL FURNISH TO THE TRUSTEE SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (4) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS CERTIFICATE PRIOR
TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE CERTIFICATES
UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING
TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF
THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR IS A
PURCHASER WHO IS NOT A U.S. PERSON, THE HOLDER MUST,
A-1
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND, IF REQUESTED, TO AMERICAN
AIRLINES, INC., SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT
MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER
OF THE TRANSFER OF THE CERTIFICATES PURSUANT TO CLAUSE 2(E) ABOVE OR UPON ANY
TRANSFER OF THE CERTIFICATES UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION). AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT. THE PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN
VIOLATION OF THE FOREGOING RESTRICTIONS.](1)
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 5.04
AND 5.05 OF THE TRUST SUPPLEMENT OF THE PASS THROUGH TRUST AGREEMENT REFERRED TO
HEREIN.](2)
BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT EITHER (A) NO ASSETS OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR OF A PLAN SUBJECT TO SECTION 4975
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), HAVE BEEN USED TO
PURCHASE THIS CERTIFICATE OR (B) THE PURCHASE AND HOLDING OF THIS CERTIFICATE
ARE EXEMPT FROM THE PROHIBITED TRANSACTION RESTRICTIONS OF ERISA AND THE CODE
PURSUANT TO ONE OR MORE PROHIBITED TRANSACTION STATUTORY OR ADMINISTRATIVE
EXEMPTIONS.
----------
(1) Not to be included on the face of the Permanent Offshore Global
Certificate or any Exchange Certificate.
(2) This legend to appear on Book-Entry Certificates to be deposited with the
The Depository Trust Company.
A-2
[GLOBAL CERTIFICATE](1)
AMERICAN AIRLINES PASS THROUGH TRUST 2001-2B
8.608% AMERICAN AIRLINES [INITIAL] [EXCHANGE] PASS THROUGH
CERTIFICATE, SERIES 2001-2B
Final Expected Regular Distribution Date: April 1, 2011
evidencing a fractional undivided interest in a
trust, the property of which includes or will
include, among other things, certain Equipment
Notes each secured by an Aircraft owned by
American Airlines, Inc.
Certificate CUSIP No. ____
No. ______
$____________ Fractional Undivided Interest representing
% of the Trust per $1,000 face amount
THIS CERTIFIES THAT ________, for value received, is the registered owner
of a $______ (______ dollars) Fractional Undivided Interest [(as such amount may
be increased or decreased from time to time as provided in the Agreement)](2) in
the American Airlines Pass Through Trust, Series 2001-2B (the "Trust") created
by State Street Bank and Trust Company of Connecticut, National Association, as
trustee (the "Trustee"), pursuant to a Pass Through Trust Agreement, dated as of
October 4, 2001 (the "Basic Agreement"), as supplemented by Trust Supplement No.
2001-2B thereto dated October 4, 2001 (collectively, the "Agreement"), between
the Trustee and American Airlines, Inc., a corporation incorporated under
Delaware law (the "Company"), a summary of certain of the pertinent provisions
of which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the
Agreement. This Certificate is one of the duly authorized Certificates
designated as "8.608% American Airlines [Initial] [Exchange] Pass Through
Certificates, Series 2001-2B (herein called the "Certificates"). This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement. By virtue of its acceptance hereof, the
Certificateholder of this Certificate assents to and agrees to be bound by all
of the provisions of the Agreement and the Intercreditor Agreement, including
the subordination provisions of Section 9.09 of the Intercreditor Agreement. The
property of the Trust (the "Trust Property") includes or will include certain
Equipment Notes and all rights of the Trust and the Trustee, on behalf of the
Trust, to receive any payments under the Intercreditor Agreement or the
Liquidity
----------
(1) To be included on the face of each Global Certificate.
(2) To be included in Global Certificates for Initial Pass Through
Certificate.
A-3
Facility. Each issue of the Equipment Notes is or will be secured by, among
other things, a security interest in Aircraft owned by the Company.
The Certificates represent Fractional Undivided Interests in the Trust and
the Trust Property, and will have no rights, benefits or interest in respect of
any other separate trust established pursuant to the terms of the Basic
Agreement for any other series of certificates issued pursuant thereto.
Subject to and in accordance with the terms of the Agreement and the
Intercreditor Agreement, from funds then available to the Trustee, there will be
distributed on each April 1 and October 1 (a "Regular Distribution Date"),
commencing on April 1, 2002, to the Person in whose name this Certificate is
registered at the close of business on the 15th day preceding the Regular
Distribution Date, an amount in respect of the Scheduled Payments on the
Equipment Notes due on such Regular Distribution Date, the receipt of which has
been confirmed by the Trustee, equal to the product of the percentage interest
in the Trust evidenced by this Certificate and an amount equal to the sum of
such Scheduled Payments. Subject to and in accordance with the terms of the
Agreement and the Intercreditor Agreement, in the event that Special Payments on
the Equipment Notes are received by the Trustee, from funds then available to
the Trustee, there shall be distributed on the applicable Special Distribution
Date, to the Person in whose name this Certificate is registered at the close of
business on the 15th day preceding the Special Distribution Date, an amount in
respect of such Special Payments on the Equipment Notes, the receipt of which
has been confirmed by the Trustee, equal to the product of the percentage
interest in the Trust evidenced by this Certificate and an amount equal to the
sum of such Special Payments so received. If a Regular Distribution Date or
Special Distribution Date is not a Business Day, distribution shall be made on
the immediately following Business Day with the same force and effect as if made
on such Regular Distribution Date or Special Distribution Date and no interest
shall accrue during the intervening period. The Trustee shall mail notice of
each Special Payment and the Special Distribution Date therefor to the
Certificateholder of this Certificate.
[The Holder of this Certificate is entitled to the benefits of the
Registration Rights Agreement, dated as of October 4, 2001, among the Company,
the Trustee and the Placement Agents named therein (the "Registration Rights
Agreement"). Subject to the terms of the Registration Rights Agreement, in the
event that neither the consummation of the Exchange Offer nor the declaration by
the Commission of a Shelf Registration to be effective (a "Registration Event")
occurs on or prior to the 270th day after the date of the initial issuance of
the Certificates, the interest rate per annum borne by the Certificates shall be
increased by 0.50%, from and including such 270th day, to but excluding the date
on which a Registration Event occurs. In the event that the Shelf Registration
Statement ceases to be effective at any time during the period specified by the
Registration Rights Agreement for more than 60 days, whether or not consecutive,
during any 12-month period, the interest rate per annum borne by the
Certificates shall be increased by 0.50% from the 61st day of the applicable
12-month period
A-4
such Shelf Registration Statement ceases to be effective until such time as the
Shelf Registration Statement again becomes effective.](3)
Distributions on this Certificate will be made by the Trustee by check
mailed to the Person entitled thereto, without the presentation or surrender of
this Certificate or the making of any notation hereon, except that with respect
to Certificates registered on the Record Date in the name of a Clearing Agency
(or its nominee), such distributions shall be made by wire transfer. Except as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after notice mailed by the Trustee
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency of the Trustee specified in such
notice.
The Certificates do not represent a direct obligation of, or an obligation
guaranteed by, or an interest in, the Company, the Trustee, the Subordination
Agent or any Loan Trustee or any Affiliate of any thereof. The Certificates are
limited in right of payment, all as more specifically set forth on the face
hereof and in the Agreement. All payments or distributions made to
Certificateholders under the Agreement shall be made only from the Trust
Property and only to the extent that the Trustee shall have sufficient income or
proceeds from the Trust Property to make such payments in accordance with the
terms of the Agreement. Each Certificateholder of this Certificate, by its
acceptance hereof, agrees that it will look solely to the income and proceeds
from the Trust Property to the extent available for any payment or distribution
to such Certificateholder pursuant to the terms of the Agreement and that it
will not have any recourse to the Company, the Trustee, the Subordination Agent
or the Loan Trustees except as otherwise expressly provided in the Agreement, in
any Note Document or in the Intercreditor Agreement. This Certificate does not
purport to summarize the Agreement and reference is made to the Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby. A copy of the Agreement may be examined
during normal business hours at the principal office of the Trustee, and at such
other places, if any, designated by the Trustee, by any Certificateholder upon
request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Certificateholders under the Agreement at any time
by the Company and the Trustee with the consent of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust. Any such consent by the
Certificateholder of this Certificate shall be conclusive and binding on such
Certificateholder and upon all future Certificateholders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Certificateholders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations set forth
therein, the transfer of this Certificate is registrable in the Register upon
surrender of this Certificate for
----------
(3) To be included only on each Initial Certificate.
A-5
registration of transfer at the offices or agencies maintained by the Trustee in
its capacity as Registrar, or by any successor Registrar duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Registrar, duly executed by the Certificateholder hereof or such
Certificateholder's attorney duly authorized in writing, and thereupon one or
more new Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust will be issued to the designated
transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in minimum denominations of $[$100,000](4) [$1000](5) Fractional
Undivided Interest and integral multiples of $1,000 in excess thereof except
that one Certificate may be issued in a different denomination. As provided in
the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same aggregate Fractional Undivided Interest in the Trust, as
requested by the Certificateholder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee shall require payment of a sum sufficient to cover any
tax or governmental charge payable in connection therewith.
The Company, the Trustee, the Registrar and any Paying Agent shall deem
and treat the person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Company, the Trustee, the Registrar or
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
Any Person acquiring or accepting this Certificate or an interest herein
will, by such acquisition or acceptance, be deemed to represent and warrant to
the Company, the Loan Trustees and the Trustee that either: (i) no assets of an
employee benefit plan subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or of an employee benefit plan or an
individual retirement account subject to Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), or any trust established under such plan
or account, have been used to purchase this Certificate or an interest herein or
(ii) the purchase and holding of this Certificate or interest herein by such
Person are exempt from the prohibited transaction restrictions of ERISA and the
Code pursuant to one or more prohibited transaction statutory or administrative
exemptions.
----------
(4) To be included only on each Initial Certificate.
(5) To be included on each Exchange Certificate.
A-6
THIS CERTIFICATE AND THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES AND CERTIFICATEHOLDERS HEREUNDER AND THEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Unless the certificate of authentication hereon has been executed by the
Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
A-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
AMERICAN AIRLINES, PASS THROUGH TRUST 2001-2B
By: STATE STREET BANK AND TRUST
COMPANY
OF CONNECTICUT, NATIONAL
ASSOCIATION,
as Trustee
By: ____________________________________
Title:______________________________
Dated:______________________________
FORM OF THE TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Agreement.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Trustee
By: ___________________________
Authorized Officer
A-8
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
________________________________________________________________________________
Please print or typewrite name and address including zip code of assignee
________________________________________________________________________________
the within Certificate and all rights thereunder, hereby irrevocably
constituting and appointing __________________________________ attorney to
transfer said Certificate on the books of the Company with full power of
substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES OTHER THAN EXCHANGE CERTIFICATES,
PERMANENT OFFSHORE GLOBAL CERTIFICATE AND
OFFSHORE PHYSICAL CERTIFICATES]
In connection with any transfer of this Certificate occurring prior to the
date which is the earlier of (i) the date the shelf registration statement is
declared effective or (ii) the end of the period referred to in Rule 144(k)
under the Securities Act, the undersigned confirms that without utilizing any
general solicitation or general advertising that:
[Check One]
| |(a) this Certificate is being transferred in compliance with the
exemption from registration under the Securities Act of 1933, as
amended, provided by Rule 144A thereunder.
or
| |(b) this Certificate is being transferred other than in accordance with
(a) above and documents are being furnished which comply with the
conditions of transfer set forth in this Certificate and the
Agreement.
A-9
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Certificate in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 5.05 of the Trust Supplement shall
have been satisfied.
Date: _____________ ________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
SIGNATURE GUARANTEE: ___________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Certificate for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Date: _____________
________________________________________
NOTICE: To be executed by an executive
officer
A-10
EXHIBIT B
FORM OF CERTIFICATE FOR UNLEGENDED CERTIFICATES
[DATE]
State Street Bank and Trust
Company of Connecticut, National
Association
[Address]
Attention: [ ]
Re: American Airlines, 2001-2B Pass Through Trust, Class B Pass
Through Trust Certificates (the "Certificates")
Dear Sirs:
This letter relates to U.S. $__________ Fractional Undivided Interest of
Certificates represented by a Certificate (the "Legended Certificate") which
bears a legend outlining restrictions upon transfer of such Legended
Certificate. Pursuant to Section 3.01 of the Pass Through Trust Agreement dated
as of October 4, 2001 (the "Basic Agreement") between the Trustee and American
Airlines, Inc., a Delaware corporation (the "Company"), as supplemented by Trust
Supplement No. 2001-2B thereto (the "Trust Supplement", and together with the
Basic Agreement, the "Agreement"), we hereby certify that we are (or we will
hold such securities on behalf of) a person outside the United States to whom
the Certificates could be transferred in accordance with Rule 904 of Regulation
S promulgated under the U.S. Securities Act of 1933, as amended. Accordingly,
you are hereby requested to exchange the legended certificate for an unlegended
certificate representing an identical principal amount of Certificates, all in
the manner provided for in the Agreement.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Certificateholder]
By: ______________________________
Authorized Signature
B-1
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
[DATE]
State Street Bank and Trust
Company of Connecticut, National
Association
[Address]
Attention: [ ]
Re: American Airlines 2001-2B Pass Through Trust (the "Trust"),
8.608% American Airlines Pass Through Trust Certificates
Series 2001-2B (the "Certificates")
Sirs:
In connection with our proposed sale of $_______ Fractional Undivided
Interest of the Certificates, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended, and, accordingly, we represent that:
(1) the offer of the Certificates was not made to a person in the
United States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States or
(b) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any person acting on
our behalf knows that the transaction has been pre-arranged with a buyer in the
United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are applicable
thereto, we confirm that such sale has been made in accordance with the
applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case may be.
C-1
You and American Airlines, Inc. are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: ______________________________
Authorized Signature
C-2
EXHIBIT D
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
Xxxxxx Xxxxxxx & Co. Incorporated American Airlines, Inc.
0000 Xxxxxxxx 0000 Xxxx Xxxxxx Xxxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxx Xxxxx, Xxxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx State Street Bank and Trust Company of
Incorporated Connecticut, National Association,
North Tower as Pass Through Trustee
World Financial Center 000 Xxxxxx Xxxxxx, Xxxxxxx Square
New York, New York 10281 Xxxxxxxx, Xxxxxxxxxxx 00000
[ ]
[ ]
Ladies and Gentlemen:
In connection with our proposed purchase of 8.608% American Airlines, Inc.
Class B Pass Through Certificates, Series 2001-2 (the "Certificates") we confirm
that:
(h) We have received a copy of the Offering Memorandum (the "Offering
Memorandum"), relating to the Certificates and such other information as we deem
necessary in order to make our investment decision. We acknowledge that we have
read and agree to the matters stated in the section entitled "Transfer
Restrictions" of such Offering Memorandum. We acknowledge that neither American
Airlines, Inc. (the "Company") nor any Placement Agent, nor any person
representing the Company or any Placement Agent, has made any representation
with respect to the offer or sale of any Certificates.
(i) We understand that any subsequent transfer of the Certificates is
subject to certain restrictions and conditions set forth in the Pass Through
Trust Agreement between the Company and State Street Bank and Trust Company of
Connecticut, National Association (the "Trustee") relating to the Certificates,
and we agree to be bound by, and not to resell, pledge or otherwise transfer the
Certificates except in compliance with, such restrictions and conditions and the
Securities Act of 1933, as amended (the "Securities Act").
(j) We are purchasing Certificates having an aggregate principal amount of
not less than $100,000 and each account (if any) for which we are purchasing
Certificates is purchasing Certificates having an aggregate principal amount of
not less than $100,000.
D-1
(k) We understand that the Certificates have not been registered under the
Securities Act, that the Certificates are being sold to us in a transaction that
is exempt from the registration requirements of the Securities Act and that the
Certificates may not be offered or resold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that, if we should sell any Certificates
within the applicable time period referred to in Rule 144(k) of the Securities
Act, we will do so only (A) to the Company or a subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) inside the United States to an Institutional
Accredited Investor (as defined below) acquiring $100,000 or more aggregate
principal amount of such Certificates that, prior to such transfer, furnishes to
the Trustee a signed letter containing certain representations and agreements
relating to the restrictions on transfer of the Certificates (the form of which
letter can be obtained from the Trustee), (D) outside the United States in
accordance with Rule 904 of Regulation S under the Securities Act, (E) pursuant
to the exemption from registration provided by Rule 144 under the Securities Act
or (F) pursuant to a registration statement which has been declared effective
under the Securities Act (and which continues to be effective at the time of
such transfer), and we further agree to provide any person purchasing any of the
Certificates from us a notice advising such purchaser that resales of the
Certificates are restricted as stated herein.
(l) We understand that, on any proposed resale of any Certificates, we
will be required to furnish to the Company and to the Trustee such certificates,
legal opinions and other information as the Company and the Trustee may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Certificates purchased by us will
bear a legend to the foregoing effect.
(m) We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act)
("Institutional Accredited Investor") and have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Certificates, and we and any accounts for which
we are acting are each able to bear the economic risk of our or their
investments.
(n) We are acquiring the Certificates purchased by us for our own account
or for one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment discretion.
D-2
You are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:_____________________________________
Name:
Title:
Securities to be Purchased:
$ principal amount
D-3
EXHIBIT E to
TRUST SUPPLEMENT NO. 2001-2B
[DTC Letter of Representations]
E-1
SCHEDULE I-A to
TRUST SUPPLEMENT NO. 2001-B
PREFUNDED AIRCRAFT
EQUIPMENT NOTES, PRINCIPAL AMOUNTS
AND MATURITIES
Expected Aircraft
Registration Number Equipment Notes Principal Amount Maturity
------------------- --------------- ---------------- --------
N193AN Series 2001-2B Equipment Note $ 4,141,886 April 1, 2011
N194AA Series 2001-2B Equipment Note 4,141,886 April 1, 2011
N195AN Series 2001-2B Equipment Note 3,355,394 April 1, 2011
N196AA Series 2001-2B Equipment Note 3,355,394 April 1, 2011
N197AN Series 2001-2B Equipment Note 3,426,173 April 1, 2011
N198AA Series 2001-2B Equipment Note 3,435,809 April 1, 2011
N199AN Series 2001-2B Equipment Note 3,380,806 April 1, 2011
N175AN Series 2001-2B Equipment Note 3,380,806 April 1, 2011
N757AN Series 2001-2B Equipment Note 8,817,037 April 1, 2011
N758AN Series 2001-2B Equipment Note 8,771,024 April 1, 2011
N759AN Series 2001-2B Equipment Note 8,718,208 April 1, 2011
Total: $54,924,423
I-A-1
SCHEDULE I-B to
TRUST SUPPLEMENT NO. 2001-2B
NON-PREFUNDED AIRCRAFT
EQUIPMENT NOTES, PRINCIPAL AMOUNTS
AND MATURITIES
Aircraft Principal
Registration Number Equipment Notes Amount Maturity
------------------- --------------- ------ --------
N965AN Series 2001-2B Equipment Note $ 3,292,746 April 1, 2011
N966AN Series 2001-2B Equipment Note 3,295,128 April 1, 2011
N185AN Series 2001-2B Equipment Note 3,880,563 April 1, 2011
N186AN Series 2001-2B Equipment Note 3,881,754 April 1, 2011
N187AN Series 2001-2B Equipment Note 3,884,135 April 1, 2011
N188AN Series 2001-2B Equipment Note 3,909,170 April 1, 2011
N189AN Series 2001-2B Equipment Note 4,102,815 April 1, 2011
N190AA Series 2001-2B Equipment Note 4,102,815 April 1, 2011
N191AN Series 2001-2B Equipment Note 4,127,681 April 1, 2011
N192AN Series 2001-2B Equipment Note 4,132,648 April 1, 2011
N797AN Series 2001-2B Equipment Note 8,832,552 April 1, 2011
N798AN Series 2001-2B Equipment Note 8,456,989 April 1, 2011
N799AN Series 2001-2B Equipment Note 8,459,963 April 1, 2011
N750AN Series 2001-2B Equipment Note 8,467,012 April 1, 2011
N751AN Series 2001-2B Equipment Note 8,695,055 April 1, 2011
N752AN Series 2001-2B Equipment Note 8,577,044 April 1, 2011
N753AN Series 2001-2B Equipment Note 8,610,384 April 1, 2011
N754AN Series 2001-2B Equipment Note 8,592,172 April 1, 2011
N755AN Series 2001-2B Equipment Note 8,952,376 April 1, 2011
N756AM Series 2001-2B Equipment Note 8,909,575 April 1, 2011
Total: $125,162,577
I-B-1
SCHEDULE II to
TRUST SUPPLEMENT NO. 2001-2B
NON-PREFUNDED AIRCRAFT
Registration
Aircraft Type Number
------------- ------
Boeing 737-823 N965AN
Boeing 737-823 N966AN
Boeing 757-223ER N185AN
Boeing 757-223ER N186AN
Boeing 757-223ER N187AN
Boeing 757-223ER N188AN
Boeing 757-223ER N189AN
Boeing 757-223ER N190AA
Boeing 757-223ER N191AN
Boeing 757-223ER N192AN
Boeing 777-223ER N797AN
Boeing 777-223ER N798AN
Boeing 777-223ER N799AN
Boeing 777-223ER N750AN
Boeing 777-223ER N751AN
Boeing 777-223ER N752AN
Boeing 777-223ER N753AN
Boeing 777-223ER N754AN
Boeing 777-223ER N755AN
Boeing 777-223ER N756AM
PREFUNDED AIRCRAFT
Expected
Registration
Aircraft Type Number
------------- ------
Boeing 757-223ER N193AN
Boeing 757-223ER N194AA
Boeing 757-223 N195AN
Boeing 757-223 N196AA
Boeing 757-223 N197AN
Boeing 757-223 N198AA
Boeing 757-223 N199AN
Boeing 757-223 N175AN
Boeing 777-223ER N757AN
Boeing 777-223ER N758AN
Boeing 777-223ER N759AN
II-1
