EXHIBIT 4.6
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REVOLVING CREDIT AGREEMENT(2000-3C)
Dated as of November 2, 2000
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
as Subordination Agent, as agent and trustee for the US Airways Pass Through
Trust 2000-3C
as Borrower
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL SERVICES INC., as Liquidity Provider
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Relating to
US Airways Pass Through Trust 2000-3C
8.39% US Airways Pass Through Certificates,
Series 2000-3C
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS........................................................1
Section 1.01. Certain Defined Terms..............................1
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENT................................8
Section 2.01. The Advances.......................................8
Section 2.02. Making the Advances................................8
Section 2.03. Fees..............................................10
Section 2.04. Reductions, Increases or Termination of
the Maximum Commitment............................10
Section 2.05. Repayments of Interest Advances or the
Final Advance.....................................11
Section 2.06. Repayments of Provider Advances...................11
Section 2.07. Payments to the Liquidity Provider Under
the Intercreditor Agreement.......................12
Section 2.08. Book Entries......................................12
Section 2.09. Payments from Available Funds Only................13
Section 2.10. Extension of the Expiry Date; Non-Extension
Advance...........................................13
ARTICLE III OBLIGATIONS OF THE BORROWER.....................................13
Section 3.01. Increased Costs...................................13
Section 3.02. Capital Adequacy..................................14
Section 3.03. Payments Free of Deductions.......................15
Section 3.05. Computations......................................17
Section 3.06. Payment on Non-Business Days......................17
Section 3.07. Interest..........................................17
Section 3.08. Replacement of Borrower...........................18
Section 3.09. Funding Loss Indemnification......................18
Section 3.10. Illegality........................................19
ARTICLE IV CONDITIONS PRECEDENT.............................................19
Section 4.01. Conditions Precedent to Effectiveness
of Section 2.01...................................19
Section 4.02. Conditions Precedent to Borrowing.................21
ARTICLE V COVENANTS.........................................................21
Section 5.01. Affirmative Covenants of the Borrower.............21
Section 5.02. Negative Covenants of the Borrower................22
ARTICLE VI LIQUIDITY EVENTS OF DEFAULT......................................22
Section 6.01. Liquidity Events of Default.......................22
ARTICLE VII MISCELLANEOUS...................................................23
Section 7.01. Amendments, Etc...................................23
Section 7.02. Notices, Etc......................................23
Section 7.03. No Waiver; Remedies...............................24
Section 7.04. Further Assurances................................24
Section 7.05. Indemnification; Survival of Certain
Provisions........................................24
Section 7.06. Liability of the Liquidity Provider...............25
Section 7.07. Costs, Expenses and Taxes.........................26
Section 7.08. Binding Effect; Participations....................26
Section 7.09. Severability......................................28
Section 7.10. GOVERNING LAW.....................................28
Section 7.11. Submission to Jurisdiction; Waiver of Jury
Trial; Waiver of Immunity.........................28
Section 7.12. Execution in Counterparts.........................29
Section 7.13. Entirety 29
Section 7.14. Headings 29
Section 7.15. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES..29
ANNEX I Interest Advance Notice of Borrowing
ANNEX II Non-Extension Advance Notice of Borrowing
ANNEX III Downgrade Advance Notice of Borrowing
ANNEX IV Final Advance Notice of Borrowing
ANNEX V Notice of Termination
ANNEX VI Notice of Replacement Subordination Agent
EXHIBIT I Form of Guarantee Agreement
REVOLVING CREDIT AGREEMENT (2000-3C)
This REVOLVING CREDIT AGREEMENT (2000-3C) dated as of
November 2, 2000, between STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, a national banking association, not in
its individual capacity but solely as Subordination Agent under the
Intercreditor Agreement (each as defined below), as agent and trustee for
the Class C Trust (as defined below) (the "Borrower"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
CAPITAL SERVICES INC., a corporation organized under the laws of the State
of Delaware (the "Liquidity Provider").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Class C Trust Agreement (such
term and all other capitalized terms used in these recitals having the
meanings set forth or referred to in Section 1.01), the Class C Trust is
issuing the Class C Certificates;
WHEREAS, the Borrower, in order to support the timely
payment of a portion of the interest on the Class C Certificates in
accordance with their terms, has requested the Liquidity Provider to enter
into this Agreement, providing in part for the Borrower to request in
specified circumstances that Advances be made hereunder; and
WHEREAS, the Liquidity Provider has requested ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co. (the "Guarantor") to enter into a Guarantee
Agreement in the form attached hereto as Exhibit I, providing for the full
and unconditional guarantee of the Liquidity Provider's obligations under
this Agreement (the "Guarantee Agreement").
NOW, THEREFORE, in consideration of the premises, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. (a) Definitions.
As used in this Agreement and unless otherwise expressly indicated, or
unless the context clearly requires otherwise, the following capitalized
terms shall have the following respective meanings for all purposes of this
Agreement:
"Additional Cost" has the meaning assigned to such term
in Section 3.01.
"Advance" means an Interest Advance, a Final Advance, a
Provider Advance, an Applied Provider Advance or an Unpaid Advance, as the
case may be.
"Applicable Liquidity Rate" has the meaning assigned to
such term in Section 3.07(f).
"Applicable Margin" means (x) with respect to any Unpaid
Advance or Applied Provider Advance, 2.0% per annum and (y) with respect to
any Unapplied Provider Advance, the rate per annum specified in the
Liquidity Facility Fee Letter applicable to this Agreement.
"Applied Downgrade Advance" has the meaning assigned to
such term in Section 2.06(a).
"Applied Non-Extension Advance" has the meaning assigned
to such term in Section 2.06(a).
"Applied Provider Advance" has the meaning assigned to
such term in Section 2.06(a).
"Base Rate" means a fluctuating interest rate per annum
in effect from time to time, which rate per annum shall at all times be
equal to (a) the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by the Liquidity Provider from three Federal funds
brokers of recognized standing selected by it, plus (b) one quarter of one
percent (1/4 of 1%) per annum.
"Base Rate Advance" means an Advance that bears interest
at a rate based upon the Base Rate.
"Borrower" has the meaning assigned to such term in the
recital of parties to this Agreement.
"Borrowing" means the making of Advances requested by
delivery of a Notice of Borrowing.
"Business Day" means any day other than a Saturday or
Sunday or other day on which insurance companies or commercial banks in New
York, New York, or commercial banking institutions in Pittsburgh,
Pennsylvania and in the cities in which the Corporate Trust Office of the
Subordination Agent or any Loan Trustee or the fiscal agent of the Policy
Provider or the office of the Policy Provider are located are authorized or
obligated by law or executive order to close.
"Deposit Agreement" means the Deposit Agreement dated as
of the date hereof between First Security Bank, National Association, as
Escrow Agent and ABN AMRO Bank N.V., acting through its Chicago branch, as
Depositary, pertaining to the Class C Certificates, as the same may be
amended, modified or supplemented from time to time in accordance with the
terms thereof.
"Depositary" has the meaning assigned to such term in the
Deposit Agreement.
"Deposits" has the meaning assigned to such terms in the
Deposit Agreement.
"Downgrade Advance" means an Advance made pursuant to
Section 2.02(c).
"Effective Date" has the meaning specified in Section
4.01. The delivery of the certificate of the Liquidity Provider
contemplated by Section 4.01(e) shall be conclusive evidence that the
Effective Date has occurred.
"Excluded Taxes" means (i) taxes imposed on the overall
net income of the Liquidity Provider or of its Facility Office by the
jurisdiction where such Liquidity Provider's principal office or such
Facility Office is located, and (ii) Excluded Withholding Taxes.
"Excluded Withholding Taxes" means (i) withholding Taxes
imposed by the United States except (but only in the case of a successor
Liquidity Provider organized under the laws of a jurisdiction outside the
United States) to the extent that such United States withholding Taxes are
imposed as a result of any change in applicable law (excluding from change
in applicable law for this purpose a change in an applicable treaty or
other change in law affecting the applicability of a treaty) after the date
hereof, or in the case of a successor Liquidity Provider (including a
transferee of an Advance) or Facility Office, after the date on which such
successor Liquidity Provider obtains its interest or on which the Facility
Office is changed, and (ii) any withholding Taxes imposed by the United
States which are imposed or increased as a result of the Liquidity Provider
failing to deliver to the Borrower any certificate or document (which
certificate or document in the good faith judgment of the Liquidity
Provider it is legally entitled to provide) which is reasonably requested
by the Borrower to establish that payments under this Agreement are exempt
from (or entitled to a reduced rate of) withholding Tax.
"Expenses" means liabilities, obligations, damages,
settlements, penalties, claims, actions, suits, costs, expenses, and
disbursements (including, without limitation, reasonable fees and
disbursements of legal counsel and costs of investigation), provided that
Expenses shall not include any Taxes.
"Expiry Date" means October 31, 2001, initially, or any
date to which the Expiry Date is extended pursuant to Section 2.10.
"Facility Office" means the Facility Office of the
Liquidity Provider presently located at New York, New York, or such other
Facility Office as the Liquidity Provider from time to time shall notify
the Borrower as its Facility Office hereunder; provided that the Liquidity
Provider shall not change its Facility Office to another Facility Office
outside the United States of America except in accordance with Section
3.01, 3.02 or 3.03 hereof.
"Final Advance" means an Advance made pursuant to Section
2.02(d).
"Guarantor" has the meaning assigned to such term in the
preliminary statements of this Agreement.
"Guarantee Agreement" has the meaning assigned to such
term in the preliminary statements of this Agreement.
"Intercreditor Agreement" means the Intercreditor
Agreement dated the date hereof, among the Class C Trustee, the Class G
Trustee, the Liquidity Provider, the Policy Provider and the Subordination
Agent, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with its terms.
"Interest Advance" means an Advance made pursuant to
Section 2.02(a).
"Interest Period" means, with respect to any LIBOR
Advance, each of the following periods:
(i) the period beginning on the third Business Day
following either (x) the Liquidity Provider's
receipt of the Notice of Borrowing for such LIBOR
Advance or (y) the date of the withdrawal of funds
from the Class C Cash Collateral Account for the
purpose of paying interest on the Class C
Certificates as contemplated by Section 2.06(a)
hereof and, in either case, ending on the next
Regular Distribution Date; and
(ii) each subsequent period commencing on the last day
of the immediately preceding Interest Period and
ending on the next Regular Distribution Date;
provided, however, that if (x) the Final Advance shall
have been made, or (y) other outstanding Advances shall
have been converted into the Final Advance, then the
Interest Periods shall be successive periods of one month
beginning on the third Business Day following the
Liquidity Provider's receipt of the Notice of Borrowing
for such Final Advance (in the case of clause (x) above)
or the Regular Distribution Date following such
conversion (in the case of clause (y) above).
"LIBOR Advance" means an Advance bearing interest at a
rate based upon the LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period:
(i) the rate per annum appearing on display page
3750 (British Bankers Association-LIBOR) of the
Dow ▇▇▇▇▇ Markets Service (or any successor or
substitute therefor ) at approximately 11:00
a.m. (London time) two Business Days before the
first day of such Interest Period, as the rate
for dollar deposits with a maturity comparable
to such Interest Period, or
(ii) if the rate calculated pursuant to clause (i)
above is not available, the average (rounded
upwards, if necessary, to the next 1/16 of 1%)
of the rates per annum at which deposits in
dollars are offered for the relevant Interest
Period by three banks of recognized standing
selected by the Liquidity Provider in the
London interbank market at approximately 11:00
a.m. (London time) two Business Days before the
first day of such Interest Period in an amount
approximately equal to the principal amount of
the LIBOR Advance to which such Interest Period
is to apply and for a period comparable to such
Interest Period.
"Liquidity Event of Default" means the occurrence of
either (a) the Acceleration of all of the Equipment Notes (provided that,
with respect to the period prior to the Delivery Period Expiry Date, such
Equipment Notes have an aggregate outstanding principal balance in excess
of $250,000,000) or (b) a US Airways Bankruptcy Event.
"Liquidity Indemnitee" means (i) the Liquidity Provider,
(ii) the Guarantor, (iii) the respective directors, officers, employees and
agents of the Liquidity Provider and the Guarantor, and (iv) the successors
and permitted assigns of the persons described in clauses (i) through
(iii), inclusive.
"Liquidity Provider" has the meaning assigned to such
term in the recital of parties to this Agreement.
"Maximum Available Commitment" shall mean, subject to the
proviso contained in the third sentence of Section 2.02(a), at any time of
determination, (a) the Maximum Commitment at such time less (b) the
aggregate amount of each Interest Advance outstanding at such time;
provided that following a Provider Advance or a Final Advance, the Maximum
Available Commitment shall be zero.
"Maximum Commitment" means initially $19,765,246, as the
same may be reduced or increased from time to time in accordance with
Section 2.04(a).
"Non-Excluded Tax" has the meaning specified in Section
3.03.
"Non-Extension Advance" means an Advance made pursuant to
Section 2.02(b).
"Notice of Borrowing" has the meaning specified in
Section 2.02(e).
"Notice of Replacement Subordination Agent" has the
meaning specified in Section 3.08.
"Performing Note Deficiency" means any time that less
than 65% of the then aggregate outstanding principal amount of all
Equipment Notes are Performing Equipment Notes.
"Prospectus Supplement" means the Prospectus Supplement
dated October 26, 2000 relating to the Certificates, as such Prospectus
Supplement may be amended or supplemented.
"Provider Advance" means a Downgrade Advance or a
Non-Extension Advance.
"Reference Bank" has the meaning specified in Section
7.08(a).
"Regulatory Change" has the meaning assigned to such term
in Section 3.01.
"Replenishment Amount" has the meaning assigned to such
term in Section 2.06(b).
"Required Amount" means, for any day, the sum of the
aggregate amount of interest, calculated at the rate per annum equal to the
Stated Interest Rate for the Class C Certificates, that would be payable on
the Class C Certificates on each of the three successive semiannual Regular
Distribution Dates immediately following such day or, if such day is a
Regular Distribution Date, on such day and the succeeding two semiannual
Regular Distribution Dates, in each case calculated on the basis of the
Pool Balance of the Class C Certificates on such day and without regard to
expected future payments of principal on the Class C Certificates.
Notwithstanding the above, in the event of any Policy Provider Election,
for purposes of the definition of the Required Amount, the Pool Balance
shall be deemed to be reduced by the amount (if positive) by which (a) the
then outstanding principal balance of each Series G Equipment Note in
respect of which such Policy Provider Election has been made shall exceed
(b) the amount of any Policy Drawings previously paid by the Policy
Provider in respect of principal on such Series G Equipment Note.
"Termination Date" means the earliest to occur of the
following: (i) the Expiry Date; (ii) the date on which the Borrower
delivers to the Liquidity Provider a certificate, signed by a Responsible
Officer of the Borrower, certifying that all of the Class C Certificates
have been paid in full (or provision has been made for such payment in
accordance with the Intercreditor Agreement and the Class C Trust
Agreement) or are otherwise no longer entitled to the benefits of this
Agreement; (iii) the date on which the Borrower delivers to the Liquidity
Provider a certificate, signed by a Responsible Officer of the Borrower,
certifying that a Replacement Liquidity Facility has been substituted for
this Agreement in full pursuant to Section 3.6(e) of the Intercreditor
Agreement; (iv) the fifth Business Day following the receipt by the
Borrower of a Termination Notice from the Liquidity Provider pursuant to
Section 6.01 hereof; and (v) the date on which no Advance is, or may
(including by reason of reinstatement as herein provided) become, available
for a Borrowing hereunder.
"Termination Notice" means the Notice of Termination
substantially in the form of Annex V to this Agreement.
"Transferee" has the meaning assigned to such term in
Section 7.08(b).
"Unapplied Downgrade Advance" means any Downgrade Advance
other than an Applied Downgrade Advance.
"Unapplied Non-Extension Advance" means any Non-Extension
Advance other than an Applied Non-Extension Advance.
"Unapplied Provider Advance" means any Provider Advance
other than an Applied Provider Advance.
"Unpaid Advance" has the meaning assigned to such term in
Section 2.05.
(b) Terms Defined in the Intercreditor Agreement. For
all purposes of this Agreement, the following terms shall have the
respective meanings assigned to such terms in the Intercreditor Agreement:
"Acceleration", "Certificates", "Class G Certificates",
"Class C Cash Collateral Account", "Class C Certificateholders", "Class C
Certificates", "Class C Trust", "Class C Trust Agreement", "Class C
Trustee", "Closing Date", "Controlling Party", "Corporate Trust Office",
"Delivery Period Expiry Date", "Distribution Date", "Downgraded Facility",
"Equipment Notes", "Final Legal Distribution Date", "Financing Agreement",
"Indenture", "Interest Payment Date", "Investment Earnings", "Leased
Aircraft", "Liquidity Facility", "Liquidity Facility Fee Letter",
"Liquidity Obligations", "Loan Trustee", "▇▇▇▇▇'▇", "Non-Extended
Facility", "Note Purchase Agreement", "Operative Agreements", "Owned
Aircraft", "Participation Agreement", "Performing Equipment Note",
"Person", "Policy Drawings", "Policy Provider", "Policy Provider Election",
"Pool Balance", "Rating Agency", "Ratings Confirmation", "Regular
Distribution Date", "Replacement Liquidity Facility", "Responsible
Officer", "Scheduled Payment", "Series G Equipment Note", "Special
Payment", "Standard & Poor's", "Stated Interest Rate", "Subordination
Agent", "Taxes", "Threshold Rating", "Trustee", "Underwriters",
"Underwriting Agreement", "US Airways", "US Airways Bankruptcy Event" and
"Written Notice".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances. The Liquidity Provider
hereby irrevocably agrees, on the terms and conditions hereinafter set
forth, to make Advances to the Borrower from time to time on any Business
Day during the period from the Effective Date until 1:00 p.m. (New York
City time) on the Expiry Date (unless the obligations of the Liquidity
Provider shall be earlier terminated in accordance with the terms of
Section 2.04(b)) in an aggregate amount at any time outstanding not to
exceed the Maximum Commitment.
Section 2.02. Making the Advances. (a) Interest
Advances shall be made in one or more Borrowings by delivery to the
Liquidity Provider of one or more written and completed Notices of
Borrowing in substantially the form of Annex I attached hereto, signed by a
Responsible Officer of the Borrower, in an amount not exceeding the Maximum
Available Commitment at such time and shall be used solely for the payment
when due of interest on the Class C Certificates at the Stated Interest
Rate therefor in accordance with Section 3.6(a) of the Intercreditor
Agreement. Each Interest Advance made hereunder shall automatically reduce
the Maximum Available Commitment and the amount available to be borrowed
hereunder by subsequent Advances by the amount of such Interest Advance
(subject to reinstatement as provided in the next sentence). Upon repayment
to the Liquidity Provider of all or any part of the amount of any Interest
Advance made pursuant to this Section 2.02(a), together with accrued
interest thereon (as provided herein), the Maximum Available Commitment
shall be reinstated by the amount of such repaid Interest Advance, but not
to exceed the Maximum Commitment; provided, however, that the Maximum
Available Commitment shall not be so reinstated at any time if (i) a
Liquidity Event of Default shall have occurred and be continuing and (ii)
there is a Performing Note Deficiency.
(b) A Non-Extension Advance shall be made in a single
Borrowing if this Agreement is not extended in accordance with Section
3.6(d) of the Intercreditor Agreement (unless a Replacement Liquidity
Facility to replace this Agreement shall have been delivered to the
Borrower as contemplated by said Section 3.6(d) within the time period
specified in such Section) by delivery to the Liquidity Provider of a
written and completed Notice of Borrowing in substantially the form of
Annex II attached hereto, signed by a Responsible Officer of the Borrower,
in an amount equal to the Maximum Available Commitment at such time, and
shall be used to fund the Class C Cash Collateral Account in accordance
with said Section 3.6(d) and Section 3.6(f) of the Intercreditor Agreement.
(c) A Downgrade Advance shall be made in a single
Borrowing upon a downgrading of the Guarantor's short-term unsecured debt
rating issued by either Rating Agency below the applicable Threshold Rating
or the Guarantee Agreement ceasing to be in full force and effect or
becoming invalid or unenforceable or the Guarantor denying its liability
thereunder (as provided for in Section 3.6(c) of the Intercreditor
Agreement) unless a Replacement Liquidity Facility to replace this
Agreement shall have been previously delivered to the Borrower in
accordance with said Section 3.6(c) and within the time period specified in
such Section, by delivery to the Liquidity Provider of a written and
completed Notice of Borrowing in substantially the form of Annex III
attached hereto, signed by a Responsible Officer of the Borrower, in an
amount equal to the Maximum Available Commitment at such time, and shall be
used to fund the Class C Cash Collateral Account in accordance with said
Section 3.6(c) and Section 3.6(f) of the Intercreditor Agreement.
(d) A Final Advance shall be made in a single Borrowing
upon the receipt by the Borrower of a Termination Notice from the Liquidity
Provider pursuant to Section 6.01 hereof by delivery to the Liquidity
Provider of a written and completed Notice of Borrowing in substantially
the form of Annex IV attached hereto, signed by a Responsible Officer of
the Borrower, in an amount equal to the Maximum Available Commitment at
such time, and shall be used to fund the Class C Cash Collateral Account in
accordance with Section 3.6(i) and Section 3.6(f) of the Intercreditor
Agreement.
(e) Each Borrowing shall be made on notice in writing (a
"Notice of Borrowing") in substantially the form required by Section
2.02(a), 2.02(b), 2.02(c) or 2.02(d), as the case may be, given by the
Borrower to the Liquidity Provider. If a Notice of Borrowing is delivered
by the Borrower in respect of any Borrowing no later than 1:00 p.m. (New
York City time) on a Business Day, upon satisfaction of the conditions
precedent set forth in Section 4.02 with respect to a requested Borrowing,
the Liquidity Provider shall make available to the Borrower, in accordance
with its payment instructions, the amount of such Borrowing in U.S. dollars
and immediately available funds, before 4:00 p.m. (New York City time) on
such Business Day or on such later Business Day specified in such Notice of
Borrowing. If a Notice of Borrowing is delivered by the Borrower in respect
of any Borrowing after 1:00 p.m. (New York City time) on a Business Day,
upon satisfaction of the conditions precedent set forth in Section 4.02
with respect to a requested Borrowing, the Liquidity Provider shall make
available to the Borrower, in accordance with its payment instructions, the
amount of such Borrowing in U.S. dollars and in immediately available
funds, before 12:00 noon (New York City time) on the first Business Day
next following the day of receipt of such Notice of Borrowing or on such
later Business Day specified by the Borrower in such Notice of Borrowing.
Payments of proceeds of a Borrowing shall be made by wire transfer of
immediately available funds to the Borrower in accordance with such wire
transfer instructions as the Borrower shall furnish from time to time to
the Liquidity Provider for such purpose. Each Notice of Borrowing shall be
irrevocable and binding on the Borrower.
(f) Upon the making of any Advance requested pursuant to
a Notice of Borrowing, in accordance with the Borrower's payment
instructions, the Liquidity Provider shall be fully discharged of its
obligation hereunder with respect to such Notice of Borrowing, and the
Liquidity Provider shall not thereafter be obligated to make any further
Advances hereunder in respect of such Notice of Borrowing to the Borrower
or to any other Person. If the Liquidity Provider makes an Advance
requested pursuant to a Notice of Borrowing before 12:00 noon (New York
City time) on the second Business Day after the date of payment specified
in said Section 2.02(e), the Liquidity Provider shall have fully discharged
its obligations hereunder with respect to such Advance and an event of
default shall not have occurred hereunder. Following the making of any
Advance pursuant to Section 2.02(b), (c) or (d) hereof to fund the Class C
Cash Collateral Account, the Liquidity Provider shall have no interest in
or rights to the Class C Cash Collateral Account, such Advance or any other
amounts from time to time on deposit in the Class C Cash Collateral
Account; provided that the foregoing shall not affect or impair the
obligations of the Subordination Agent to make the distributions
contemplated by Section 3.6(e) or (f) of the Intercreditor Agreement. By
paying to the Borrower proceeds of Advances requested by the Borrower in
accordance with the provisions of this Agreement, the Liquidity Provider
makes no representation as to, and assumes no responsibility for, the
correctness or sufficiency for any purpose of the amount of the Advances so
made and requested.
Section 2.03. Fees. The Borrower agrees to pay to the
Liquidity Provider the fees set forth in the Liquidity Facility Fee Letter
applicable to this Agreement.
Section 2.04. Reductions, Increases or Termination of
the Maximum Commitment.
(a) Automatic Reduction or Increase. Promptly following
each date on which the Required Amount is (1) reduced as a result of a
reduction in the Pool Balance of the Class C Certificates or otherwise, (2)
increased as a result of an increase in the Stated Interest Rate or (3)
subsequent to such an increase described in clause (2), reduced pursuant to
the definition of "Stated Interest Rate," the Maximum Commitment shall
automatically be reduced or increased to an amount equal to such reduced or
increased Required Amount (as calculated by the Borrower). The Borrower
shall give notice of any such automatic reduction or increase of the
Maximum Commitment to the Liquidity Provider within two Business Days
thereof. The failure by the Borrower to furnish any such notice shall not
affect such automatic reduction or increase of the Maximum Commitment.
(b) Termination. Upon the making of any Provider Advance
or Final Advance hereunder or the occurrence of the Termination Date, the
obligation of the Liquidity Provider to make further Advances hereunder
shall automatically and irrevocably terminate, and the Borrower shall not
be entitled to request any further Borrowing hereunder.
Section 2.05. Repayments of Interest Advances or the
Final Advance. Subject to Sections 2.06, 2.07 and 2.09 hereof, the Borrower
hereby agrees, without notice of an Advance or demand for repayment from
the Liquidity Provider (which notice and demand are hereby waived by the
Borrower), to pay, or to cause to be paid, to the Liquidity Provider on
each date on which the Liquidity Provider shall make an Interest Advance or
the Final Advance, an amount equal to (a) the amount of such Advance (any
such Advance, until repaid, is referred to herein as an "Unpaid Advance"),
plus (b) interest on the amount of each such Unpaid Advance as provided in
Section 3.07 hereof; provided that if (i) the Liquidity Provider shall make
a Provider Advance at any time after making one or more Interest Advances
which shall not have been repaid in accordance with this Section 2.05 or
(ii) this Liquidity Facility shall become a Downgraded Facility or
Non-Extended Facility at any time when unreimbursed Interest Advances have
reduced the Maximum Available Commitment to zero, then such Interest
Advances shall cease to constitute Unpaid Advances and shall be deemed to
have been changed into an Applied Downgrade Advance or an Applied
Non-Extension Advance, as the case may be, for all purposes of this
Agreement (including, without limitation, for the purpose of determining
when such Interest Advance is required to be repaid to the Liquidity
Provider in accordance with Section 2.06 and for the purposes of Section
2.06(b)). The Borrower and the Liquidity Provider agree that the repayment
in full of each Interest Advance and Final Advance on the date such Advance
is made is intended to be a contemporaneous exchange for new value given to
the Borrower by the Liquidity Provider.
Section 2.06. Repayments of Provider Advances. (a)
Amounts advanced hereunder in respect of a Provider Advance shall be
deposited in the Class C Cash Collateral Account, invested and withdrawn
from the Class C Cash Collateral Account as set forth in Sections 3.6(c),
(d) and (f) of the Intercreditor Agreement. The Borrower agrees to pay to
the Liquidity Provider, on each Regular Distribution Date, commencing on
the first Regular Distribution Date after the making of a Provider Advance,
interest on the principal amount of any such Provider Advance as provided
in Section 3.07 hereof; provided, however, that amounts in respect of a
Provider Advance withdrawn from the Class C Cash Collateral Account for the
purpose of paying interest on the Class C Certificates in accordance with
Section 3.6(f) of the Intercreditor Agreement (the amount of any such
withdrawal being (y) in the case of a Downgrade Advance, an "Applied
Downgrade Advance" and (z) in the case of a Non-Extension Advance, an
"Applied Non-Extension Advance" and, together with an Applied Downgrade
Advance, an "Applied Provider Advance") shall thereafter (subject to
Section 2.06(b)) be treated as an Interest Advance under this Agreement for
purposes of determining the Applicable Liquidity Rate for interest payable
thereon; provided further, however, that if, following the making of a
Provider Advance, the Liquidity Provider delivers a Termination Notice to
the Borrower pursuant to Section 6.01 hereof, such Provider Advance shall
thereafter be treated as a Final Advance under this Agreement for purposes
of determining the Applicable Liquidity Rate for interest payable thereon.
Subject to Sections 2.07 and 2.09 hereof, immediately upon the withdrawal
of any amounts from the Class C Cash Collateral Account on account of a
reduction in the Required Amount, the Borrower shall repay to the Liquidity
Provider a portion of the Provider Advances in a principal amount equal to
such reduction, plus interest on the principal amount prepaid as provided
in Section 3.07 hereof.
(b) At any time when an Applied Provider Advance (or any
portion thereof) is outstanding, upon the deposit in the Class C Cash
Collateral Account of any amount pursuant to clause "third" of Section
2.4(b) of the Intercreditor Agreement, clause "third" of Section 3.2 of the
Intercreditor Agreement or clause "fourth" of Section 3.3 of the
Intercreditor Agreement (any such amount being a "Replenishment Amount")
for the purpose of replenishing or increasing the balance thereof up to the
Required Amount at such time, (i) the aggregate outstanding principal
amount of all Applied Provider Advances (and of Provider Advances treated
as an Interest Advance for purposes of determining the Applicable Liquidity
Rate for interest payable thereon) shall be automatically reduced by the
amount of such Replenishment Amount and (ii) the aggregate outstanding
principal amount of all Unapplied Provider Advances shall be automatically
increased by the amount of such Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity
Facility in replacement of this Agreement in accordance with Section 3.6(e)
of the Intercreditor Agreement, amounts remaining on deposit in the Class C
Cash Collateral Account after giving effect to any Applied Provider Advance
on the date of such replacement shall be reimbursed to the Liquidity
Provider, but only to the extent such amounts are necessary to repay in
full to the Liquidity Provider all amounts owing to it hereunder.
Section 2.07. Payments to the Liquidity Provider
Under the Intercreditor Agreement. In order to provide for payment or
repayment to the Liquidity Provider of any amounts hereunder, the
Intercreditor Agreement provides that amounts available and referred to in
Articles II and III of the Intercreditor Agreement, to the extent payable
to the Liquidity Provider pursuant to the terms of the Intercreditor
Agreement (including, without limitation, Section 3.6(f) of the
Intercreditor Agreement), shall be paid to the Liquidity Provider in
accordance with the terms thereof. Amounts so paid to the Liquidity
Provider shall be applied by the Liquidity Provider to Liquidity
Obligations then due and payable in accordance with the Intercreditor
Agreement or, if not provided for in the Intercreditor Agreement, then in
such manner as the Liquidity Provider shall deem appropriate.
Section 2.08. Book Entries. The Liquidity Provider
shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower resulting from Advances made
from time to time and the amounts of principal and interest payable
hereunder and paid from time to time in respect thereof; provided, however,
that the failure by the Liquidity Provider to maintain such account or
accounts shall not affect the obligations of the Borrower in respect of
Advances.
Section 2.09. Payments from Available Funds Only. All
payments to be made by the Borrower under this Agreement shall be made only
from the amounts that constitute Scheduled Payments, Special Payments or
payments under Section 6(c) or 6(b), as the case may be, of the
Participation Agreements and Section 7 of the Note Purchase Agreement and
only to the extent that the Borrower shall have sufficient income or
proceeds therefrom to enable the Borrower to make payments in accordance
with the terms hereof after giving effect to the priority of payments
provisions set forth in the Intercreditor Agreement. The Liquidity Provider
agrees that it will look solely to such amounts to the extent available for
distribution to it as provided in the Intercreditor Agreement and this
Agreement and that the Borrower, in its individual capacity, is not
personally liable to it for any amounts payable or liability under this
Agreement except as expressly provided in this Agreement, the Intercreditor
Agreement or any Participation Agreement. Amounts on deposit in the Class C
Cash Collateral Account shall be available to the Borrower to make payments
under this Agreement only to the extent and for the purposes expressly
contemplated in Section 3.6(f) of the Intercreditor Agreement.
Section 2.10. Extension of the Expiry Date;
Non-Extension Advance. The Expiry Date shall be automatically extended,
effective on the 25th day prior to each Expiry Date, for a period of 364
days after such Expiry Date (unless the obligations of the Liquidity
Provider are earlier terminated in accordance with the terms hereof),
without the necessity of any act on the part of the Borrower or the
Liquidity Provider, unless the Liquidity Provider shall advise the Borrower
prior to such 25th day that it does not agree to such extension of such
Expiry Date, in which event (and if the Liquidity Provider shall not have
been replaced in accordance with Section 3.6(e) of the Intercreditor
Agreement), the Borrower shall be entitled on and after such 25th day (but
prior to such Expiry Date) to request a Non-Extension Advance in accordance
with Section 2.02(b) hereof and Section 3.6(d) of the Intercreditor
Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs. The Borrower shall pay
to the Liquidity Provider from time to time such amounts as may be
necessary to compensate the Liquidity Provider for any increased costs
incurred by the Liquidity Provider which are attributable to its making or
maintaining any LIBOR Advances hereunder or its obligation to make any such
Advances hereunder, or any reduction in any amount receivable by the
Liquidity Provider under this Agreement or the Intercreditor Agreement in
respect of any such Advances or such obligation (such increases in costs
and reductions in amounts receivable being herein called "Additional
Costs"), resulting from any change after the date of this Agreement in U.S.
federal, state, municipal, or foreign laws or regulations (including
Regulation D of the Board of Governors of the Federal Reserve System), or
the adoption or making after the date of this Agreement of any
interpretations, directives, or requirements applying to a class of banks
including the Liquidity Provider under any U.S. federal, state, municipal,
or any foreign laws or regulations (whether or not having the force of law)
by any court, central bank or monetary authority charged with the
interpretation or administration thereof (a "Regulatory Change"), which:
(1) changes the basis of taxation of any amounts payable to the Liquidity
Provider under this Agreement in respect of any such Advances (other than
Excluded Taxes); or (2) imposes or modifies any reserve, special deposit,
compulsory loan or similar requirements relating to any extensions of
credit or other assets of, or any deposits with other liabilities of, the
Liquidity Provider (including any such Advances or any deposits referred to
in the definition of LIBOR Rate or related definitions). The Liquidity
Provider agrees to use reasonable efforts (consistent with applicable legal
and regulatory restrictions) to change the jurisdiction of its Facility
Office if making such change would avoid the need for, or reduce the amount
of, any amount payable under this Section that may thereafter accrue and
would not, in the reasonable judgment of the Liquidity Provider, be
otherwise disadvantageous to the Liquidity Provider.
The Liquidity Provider will notify the Borrower of any
event occurring after the date of this Agreement that will entitle the
Liquidity Provider to compensation pursuant to this Section 3.01 as
promptly as practicable after it obtains knowledge thereof and determines
to request such compensation, which notice shall describe in reasonable
detail the calculation of the amounts owed under this Section.
Determinations by the Liquidity Provider for purposes of this Section 3.01
of the effect of any Regulatory Change on its costs of making or
maintaining Advances or on amounts receivable by it in respect of Advances,
and of the additional amounts required to compensate the Liquidity Provider
in respect of any Additional Costs, shall be prima facie evidence of the
amount owed under this Section.
Notwithstanding the preceding two paragraphs, the
Liquidity Provider and the Subordination Agent agree that the initial
Liquidity Provider (i.e., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services Inc.) shall not
be entitled to the benefits of the preceding two paragraphs; provided,
however, any permitted assignee or participant of the initial Liquidity
Provider which is a bank organized under the laws of the United States or
any State thereof shall be entitled to the benefits of the preceding two
paragraphs (subject, in the case of any permitted participant, to the
limitations set forth in Section 7.08 hereof).
Section 3.02. Capital Adequacy. If (1) the adoption,
after the date hereof, of any applicable governmental law, rule or
regulation regarding capital adequacy, (2) any change, after the date
hereof, in the interpretation or administration of any such law, rule or
regulation by any central bank or other governmental authority charged with
the interpretation or administration thereof or (3) compliance by the
Liquidity Provider or any corporation controlling the Liquidity Provider
with any applicable guideline or request of general applicability, issued
after the date hereof, by any central bank or other governmental authority
(whether or not having the force of law) that constitutes a change of the
nature described in clause (2), has the effect of requiring an increase in
the amount of capital required to be maintained by the Liquidity Provider
or any corporation controlling the Liquidity Provider, and such increase is
based upon the Liquidity Provider's obligations hereunder and other similar
obligations, the Borrower shall pay to the Liquidity Provider from time to
time such additional amount or amounts as are necessary to compensate the
Liquidity Provider for such portion of such increase as shall be reasonably
allocable to the Liquidity Provider's obligations to the Borrower
hereunder. The Liquidity Provider agrees to use reasonable efforts
(consistent with applicable legal and regulatory restrictions) to change
the jurisdiction of its Facility Office if making such change would avoid
the need for, or reduce the amount of, any amount payable under this
Section that may thereafter accrue and would not, in the reasonable
judgment of the Liquidity Provider, be otherwise materially disadvantageous
to the Liquidity Provider.
The Liquidity Provider will notify the Borrower of any
event occurring after the date of this Agreement that will entitle the
Liquidity Provider to compensation pursuant to this Section 3.02 as
promptly as practicable after it obtains knowledge thereof and determines
to request such compensation, which notice shall describe in reasonable
detail the calculation of the amounts owed under this Section.
Determinations by the Liquidity Provider for purposes of this Section 3.02
of the effect of any increase in the amount of capital required to be
maintained by the Liquidity Provider and of the amount allocable to the
Liquidity Provider's obligations to the Borrower hereunder shall be prima
facie evidence of the amounts owed under this Section.
Notwithstanding the preceding two paragraphs, the
Liquidity Provider and the Subordination Agent agree that the initial
Liquidity Provider (i.e., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services Inc.) shall not
be entitled to the benefits of the preceding two paragraphs; provided,
however, any permitted assignee or participant of the initial Liquidity
Provider which is a bank organized under the laws of the United States or
any State thereof shall be entitled to the benefits of the preceding two
paragraphs (subject, in the case of any permitted participant, to the
limitations set forth in Section 7.08 hereof).
Section 3.03. Payments Free of Deductions. (a) All
payments made by the Borrower under this Agreement shall be made free and
clear of, and without reduction for or on account of, any present or future
stamp or other taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, restrictions or conditions of any nature whatsoever now or
hereafter imposed, levied, collected, withheld or assessed, excluding
Excluded Taxes (such non-excluded taxes being referred to herein,
collectively, as "Non-Excluded Taxes" and, individually, as a "Non-Excluded
Tax"). If any Non-Excluded Taxes are required to be withheld from any
amounts payable to the Liquidity Provider under this Agreement, the amounts
so payable to the Liquidity Provider shall be increased to the extent
necessary to yield to the Liquidity Provider (after payment of all
Non-Excluded Taxes) interest or any other such amounts payable under this
Agreement at the rates or in the amounts specified in this Agreement. The
Liquidity Provider agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Facility Office if making such change would avoid the
need for, or reduce the amount of, any such additional amounts that may
thereafter accrue and would not, in the reasonable judgment of the
Liquidity Provider, be otherwise disadvantageous to the Liquidity Provider.
From time to time upon the reasonable request of the Borrower, if the
Liquidity Provider is not organized under the laws of the United States or
any State thereof, the Liquidity Provider agrees to provide to the Borrower
two original Internal Revenue Service Form W-8BEN or W-8ECI, as
appropriate, or any successor or other form prescribed by the Internal
Revenue Service, certifying that the Liquidity Provider is exempt from or
entitled to a reduced rate of United States withholding tax on payments
pursuant to this Agreement.
(b) All payments (including, without limitation,
Advances) made by the Liquidity Provider under this Agreement shall be made
free and clear of, and without reduction for or on account of, any Taxes.
If any Taxes are required to be withheld or deducted from any amounts
payable to the Borrower under this Agreement, the Liquidity Provider shall
(i) within the time prescribed therefor by applicable law pay to the
appropriate governmental or taxing authority the full amount of any such
Taxes (and any additional Taxes in respect of the additional amounts
payable under clause (ii) hereof) and make such reports or returns in
connection therewith at the time or times and in the manner prescribed by
applicable law, and (ii) pay to the Borrower an additional amount which
(after deduction of all such Taxes) will be sufficient to yield to the
Borrower the full amount which would have been received by it had no such
withholding or deduction been made. Within 30 days after the date of each
payment hereunder, the Liquidity Provider shall furnish to the Borrower the
original or a certified copy of (or other documentary evidence of) the
payment of the Taxes applicable to such payment.
(c) If any exemption from, or reduction in the rate of,
any Taxes is reasonably available to the Borrower to establish that
payments under this Agreement are exempt from (or entitled to a reduced
rate of) Tax, the Borrower shall deliver to the Liquidity Provider such
form or forms and such other evidence of the eligibility of the Borrower
for such exemption or reduction as the Liquidity Provider may reasonably
identify to the Borrower as being required as a condition to exemption
from, or reduction in the rate of, any Taxes.
Section 3.04. Payments. The Borrower shall make or
cause to be made each payment to the Liquidity Provider under this
Agreement so as to cause the same to be received by the Liquidity Provider
not later than 1:00 p.m. (New York City time) on the day when due. The
Borrower shall make all such payments in lawful money of the United States
of America, to the Liquidity Provider in immediately available funds, by
wire transfer to Citibank, N.A., New York, NY, ABA# ▇▇▇▇▇▇▇▇▇, Account
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services Inc., in favor of account number
4072-4601, Reference: US Airways, Inc. EETC 2000-3.
Section 3.05. Computations. All computations of
interest based on the Base Rate shall be made on the basis of a year of 365
or 366 days, as the case may be, and all computations of interest based on
the LIBOR Rate shall be made on the basis of a year of 360 days, in each
case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest is payable.
Section 3.06. Payment on Non-Business Days. Whenever
any payment to be made hereunder shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding
Business Day and no additional interest shall be due as a result (and if so
made, shall be deemed to have been made when due). If any payment in
respect of interest on an Advance is so deferred to the next succeeding
Business Day, such deferral shall not delay the commencement of the next
Interest Period for such Advance (if such Advance is a LIBOR Advance) or
reduce the number of days for which interest will be payable on such
Advance on the next interest payment date for such Advance.
Section 3.07. Interest. (a) Subject to Section 2.09,
the Borrower shall pay, or shall cause to be paid, without duplication,
interest on (i) the unpaid principal amount of each Advance from and
including the date of such Advance (or, in the case of an Applied Provider
Advance, from and including the date on which the amount thereof was
withdrawn from the Class C Cash Collateral Account to pay interest on the
Class C Certificates) to but excluding the date such principal amount shall
be paid in full (or, in the case of an Applied Provider Advance, the date
on which the Class C Cash Collateral Account is fully replenished in
respect of such Advance) and (ii) any other amount due hereunder (whether
fees, commissions, expenses or other amounts or, to the extent permitted by
law, installments of interest on Advances or any such other amount) which
is not paid when due (whether at stated maturity, by acceleration or
otherwise) from and including the due date thereof to but excluding the
date such amount is paid in full, in each such case, at a fluctuating
interest rate per annum for each day equal to the Applicable Liquidity Rate
(as defined below) for such Advance or such other amount as in effect for
such day, but in no event at a rate per annum greater than the maximum rate
permitted by applicable law; provided, however, that, if at any time the
otherwise applicable interest rate as set forth in this Section 3.07 shall
exceed the maximum rate permitted by applicable law, then any subsequent
reduction in such interest rate will not reduce the rate of interest
payable pursuant to this Section 3.07 below the maximum rate permitted by
applicable law until the total amount of interest accrued equals the amount
of interest that would have accrued if such otherwise applicable interest
rate as set forth in this Section 3.07 had at all times been in effect.
(b) Each Advance will be either a Base Rate Advance or a
LIBOR Advance as provided in this Section. Each such Advance will be a Base
Rate Advance for the period from the date of its borrowing to (but
excluding) the third Business Day following the Liquidity Provider's
receipt of the Notice of Borrowing for such Advance. Thereafter, such
Advance shall be a LIBOR Advance; provided that the Borrower (at the
direction of the Controlling Party, so long as the Liquidity Provider is
not the Controlling Party) may (x) convert the Final Advance into a Base
Rate Advance on the last day of an Interest Period for such Advance by
giving the Liquidity Provider no less than four Business Days' prior
written notice of such election or (y) elect to maintain the Final Advance
as a Base Rate Advance by not requesting a conversion of the Final Advance
to a LIBOR Advance under Clause (5) of the applicable Notice of Borrowing
(or, if such Final Advance is deemed to have been made, without delivery of
a Notice of Borrowing pursuant to Section 2.06, by requesting, prior to
11:00 a.m. on the first Business Day immediately following the Borrower's
receipt of the applicable Termination Notice, that such Final Advance not
be converted from a Base Rate Advance to a LIBOR Advance).
(c) Each LIBOR Advance shall bear interest during each
Interest Period at a rate per annum equal to the LIBOR Rate for such
Interest Period plus the Applicable Margin for such LIBOR Advance, payable
in arrears on the last day of such Interest Period and, in the event of the
payment of principal of such LIBOR Advance on a day other than such last
day, on the date of such payment (to the extent of interest accrued on the
amount of principal repaid).
(d) Each Base Rate Advance shall bear interest at a rate
per annum equal to the Base Rate plus the Applicable Margin for such Base
Rate Advance, payable in arrears on each Regular Distribution Date and, in
the event of the payment of principal of such Base Rate Advance on a day
other than a Regular Distribution Date, on the date of such payment (to the
extent of interest accrued on the amount of principal repaid).
(e) Each amount not paid when due hereunder (whether
fees, commissions, expenses or other amounts or, to the extent permitted by
applicable law, installments of interest on Advances but excluding
Advances) shall bear interest at a rate per annum equal to the Base Rate
plus 2.00% until paid.
(f) Each change in the Base Rate shall become effective
immediately. The rates of interest specified in this Section 3.07 with
respect to any Advance or other amount shall be referred to as the
"Applicable Liquidity Rate".
Section 3.08. Replacement of Borrower. From time to
time and subject to the successor Borrower's meeting the eligibility
requirements set forth in Section 6.9 of the Intercreditor Agreement
applicable to the Subordination Agent, upon the effective date and time
specified in a written and completed Notice of Replacement Subordination
Agent in substantially the form of Annex VI attached hereto (a "Notice of
Replacement Subordination Agent") delivered to the Liquidity Provider by
the then Borrower, the successor Borrower designated therein shall be
substituted for as the Borrower for all purposes hereunder.
Section 3.09. Funding Loss Indemnification. The
Borrower shall pay to the Liquidity Provider, upon the request of the
Liquidity Provider, such amount or amounts as shall be sufficient (in the
reasonable opinion of the Liquidity Provider) to compensate it for any
loss, cost, or expense incurred by reason of the liquidation or
redeployment of deposits or other funds acquired by the Liquidity Provider
to fund or maintain any LIBOR Advance (but excluding loss of anticipated
profits) incurred as a result of:
(1) Any repayment of a LIBOR Advance on a date other than
the last day of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance
on the date for borrowing specified in the relevant notice under Section
2.02.
Section 3.10. Illegality. Notwithstanding any other
provision in this Agreement, if any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by the
Liquidity Provider (or its Facility Office) with any request or directive
(whether or not having the force of law) of any such authority, central
bank or comparable agency shall make it unlawful or impossible for the
Liquidity Provider (or its Facility Office) to maintain or fund its LIBOR
Advances, then upon notice to the Borrower by the Liquidity Provider, the
outstanding principal amount of the LIBOR Advances shall be converted to
Base Rate Advances (a) immediately upon demand of the Liquidity Provider,
if such change or compliance with such request, in the judgment of the
Liquidity Provider, requires immediate repayment; or (b) at the expiration
of the last Interest Period to expire before the effective date of any such
change or request.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness
of Section 2.01. Section 2.01 of this Agreement shall become effective on
and as of the first date (the "Effective Date") on which the following
conditions precedent have been satisfied or waived:
(a) The Liquidity Provider shall have received on or
before the Closing Date each of the following, and in the case of each
document delivered pursuant to paragraphs (i), (ii) and (iii), each in form
and substance satisfactory to the Liquidity Provider:
(i) This Agreement duly executed on behalf of the
Borrower;
(ii) The Intercreditor Agreement duly executed on
behalf of each of the parties thereto;
(iii) Fully executed copies of each of the Operative
Agreements executed and delivered on or before
the Closing Date (other than this Agreement and
the Intercreditor Agreement);
(iv) A copy of the Prospectus Supplement and
specimen copies of the Class C Certificates;
(v) An executed copy of each document, instrument,
certificate and opinion delivered on or before
the Closing Date pursuant to the Class C Trust
Agreement, the Intercreditor Agreement and the
other Operative Agreements (in the case of each
such opinion, other than the opinion of counsel
for the Underwriters, either addressed to the
Liquidity Provider or accompanied by a letter
from the counsel rendering such opinion to the
effect that the Liquidity Provider is entitled
to rely on such opinion as of its date as if it
were addressed to the Liquidity Provider);
(vi) Evidence that there shall have been made and
shall be in full force and effect, all filings,
recordings and/or registrations, and there
shall have been given or taken any notice or
other similar action as may be reasonably
necessary or, to the extent reasonably
requested by the Liquidity Provider, reasonably
advisable, in order to establish, perfect,
protect and preserve the right, title and
interest, remedies, powers, privileges, liens
and security interests of, or for the benefit
of, the Class C Trustee, the Borrower and the
Liquidity Provider created by the Operative
Agreements executed and delivered on or prior
to the Closing Date;
(vii) An agreement from US Airways, pursuant to which
(i) US Airways agrees to provide copies of
quarterly financial statements and audited
annual financial statements to the Liquidity
Provider, and such other information as the
Liquidity Provider shall reasonably request
with respect to the transactions contemplated
by the Operative Agreements, in each case, only
to the extent that US Airways is obligated to
provide such information pursuant to Section 16
of the Basic Lease or Section 7 of the Special
Leased Aircraft Participation Agreement
(related to Leased Aircraft) to the extent such
provisions require delivery of financial
statements, or the corresponding section of the
Indentures (related to Owned Aircraft) to the
parties thereto and (ii) US Airways agrees to
allow the Liquidity Provider to inspect US
Airways' books and records regarding such
transactions, and to discuss such transactions
with officers and employees of US Airways; and
(viii) Such other documents, instruments, opinions and
approvals pertaining to the transactions
contemplated hereby or by the other Operative
Agreements as the Liquidity Provider shall have
reasonably requested.
(b) The following statement shall be true on and as of
the Effective Date: no event has occurred and is continuing, or would
result from the entering into of this Agreement or the making of any
Advance, which constitutes a Liquidity Event of Default.
(c) The Liquidity Provider shall have received payment in
full of all fees and other sums required to be paid to or for the account
of the Liquidity Provider on or prior to the Effective Date.
(d) All conditions precedent to the issuance of the Class
C Certificates under the Class C Trust Agreement shall have been satisfied
or waived, and all conditions precedent to the effectiveness of the other
Liquidity Facilities shall have been satisfied or waived, and all
conditions precedent to the purchase of the Class C Certificates by Airbus
Industrie Financial Services under the Purchase Agreement shall have been
satisfied (unless any of such conditions precedent shall have been waived
by Airbus Industrie Financial Services).
(e) The Borrower shall have received a certificate, dated
the date hereof, signed by a duly authorized representative of the
Liquidity Provider, certifying that all conditions precedent to the
effectiveness of Section 2.01 have been satisfied or waived.
(f) The Borrower shall have received the Guarantee
Agreement, substantially in the form of Exhibit I hereto, duly executed on
behalf of the party thereto.
Section 4.02. Conditions Precedent to Borrowing. The
obligation of the Liquidity Provider to make an Advance on the occasion of
each Borrowing shall be subject to the conditions precedent that the
Effective Date shall have occurred and, prior to the date of such
Borrowing, the Borrower shall have delivered a Notice of Borrowing which
conforms to the terms and conditions of this Agreement and has been
completed as may be required by the relevant form of the Notice of
Borrowing for the type of Advances requested.
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower.
So long as any Advance shall remain unpaid or the Liquidity Provider shall
have any Maximum Commitment hereunder or the Borrower shall have any
obligation to pay any amount to the Liquidity Provider hereunder, the
Borrower will, unless the Liquidity Provider shall otherwise consent in
writing:
(a) Performance of This and Other Agreements. Punctually
pay or cause to be paid all amounts payable by it under this Agreement and
the other Operative Agreements and observe and perform in all material
respects the conditions, covenants and requirements applicable to it
contained in this Agreement and the other Operative Agreements.
(b) Reporting Requirements. Furnish to the Liquidity
Provider with reasonable promptness, such other information and data with
respect to the transactions contemplated by the Operative Agreements as
from time to time may be reasonably requested by the Liquidity Provider;
and permit the Liquidity Provider, upon reasonable notice, to inspect the
Borrower's books and records with respect to such transactions and to meet
with officers and employees of the Borrower to discuss such transactions.
(c) Certain Operative Agreements. Furnish to the
Liquidity Provider with reasonable promptness, such Operative Agreements
entered into after the date hereof as from time to time may be reasonably
requested by the Liquidity Provider.
Section 5.02. Negative Covenants of the Borrower. So
long as any Advance shall remain unpaid or the Liquidity Provider shall
have any Maximum Commitment hereunder or the Borrower shall have any
obligation to pay any amount to the Liquidity Provider hereunder, the
Borrower will not appoint or permit or suffer to be appointed any successor
Borrower without the prior written consent of the Liquidity Provider, which
consent shall not be unreasonably withheld or delayed.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default. If (a) any
Liquidity Event of Default has occurred and is continuing and (b) there is
a Performing Note Deficiency, the Liquidity Provider may, in its
discretion, deliver to the Borrower a Termination Notice, the effect of
which shall be to cause (i) the obligation of the Liquidity Provider to
make Advances hereunder to expire on the fifth Business Day after the date
on which such Termination Notice is received by the Borrower, (ii) the
Borrower to promptly request, and the Liquidity Provider to promptly make,
a Final Advance in accordance with Section 2.02(d) hereof and Section
3.6(i) of the Intercreditor Agreement, (iii) all other outstanding Advances
to be automatically converted into Final Advances for purposes of
determining the Applicable Liquidity Rate for interest payable thereon, and
(iv) subject to Sections 2.07 and 2.09 hereof, all Advances (including,
without limitation, any Provider Advance and Applied Provider Advance), any
accrued interest thereon and any other amounts outstanding hereunder to
become immediately due and payable to the Liquidity Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Amendments, Etc. No amendment or waiver
of any provision of this Agreement, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Liquidity Provider, and, in the case of an
amendment or of a waiver by the Borrower, the Borrower, and then such
waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
Section 7.02. Notices, Etc. Except as otherwise
expressly provided herein, all notices and other communications provided
for hereunder shall be in writing (including telecopier and mailed or
delivered or sent by telecopier):
Borrower: State Street Bank and Trust Company of
Connecticut, National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate/Muni. Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
State Street Bank and Trust Company
Corporate Trust Department
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Liquidity Provider: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: [▇▇▇▇▇▇ ▇▇▇▇▇▇/Ivana Komarcevic/
▇▇▇▇ ▇▇▇▇▇▇▇▇▇]
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇/1895/2618
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy of any Notice of Borrowing to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, Legal Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or, as to each of the foregoing, at such other address as shall be
designated by such Person in a written notice to the others. All such
notices and communications shall be effective (i) if given by telecopier,
when transmitted to the telecopier number specified above and (ii) if given
by other means, when delivered at the address specified above, except that
written notices to the Liquidity Provider pursuant to the provisions of
Articles II and III hereof shall not be effective until received by the
Liquidity Provider. A copy of all notices delivered hereunder to either
party shall in addition be delivered to each of the parties to the
Participation Agreements at their respective addresses set forth therein.
Section 7.03. No Waiver; Remedies. No failure on the
part of the Liquidity Provider to exercise, and no delay in exercising, any
right under this Agreement shall operate as a waiver thereof; nor shall any
single or partial exercise of any right under this Agreement preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
Section 7.04. Further Assurances. The Borrower agrees
to do such further acts and things and to execute and deliver to the
Liquidity Provider such additional assignments, agreements, powers and
instruments as the Liquidity Provider may reasonably require or deem
advisable to carry into effect the purposes of this Agreement and the other
Operative Agreements or to better assure and confirm unto the Liquidity
Provider its rights, powers and remedies hereunder and under the other
Operative Agreements.
Section 7.05. Indemnification; Survival of Certain
Provisions. The Liquidity Provider shall be indemnified hereunder to the
extent and in the manner described in Section 6(c) of the Leased Aircraft
Participation Agreements, Section 6(b) of the Owned Aircraft Participation
Agreements or Section 7(c) of the Note Purchase Agreement, as the case may
be. In addition, the Borrower agrees to indemnify, protect, defend and hold
harmless the Liquidity Provider from, against and in respect of, and shall
pay on demand, all Expenses of any kind or nature whatsoever (other than
any Expenses of the nature described in Section 3.01, 3.02 or 7.07 hereof
or in the Liquidity Facility Fee Letter applicable to this Agreement
(regardless of whether indemnified against pursuant to said Sections or in
such Liquidity Facility Fee Letter)), that may be imposed, incurred by or
asserted against any Liquidity Indemnitee, in any way relating to,
resulting from, or arising out of or in connection with any action, suit or
proceeding by any third party against such Liquidity Indemnitee and
relating to this Agreement, the Liquidity Facility Fee Letter applicable to
this Agreement, the Intercreditor Agreement or any Financing Agreement;
provided, however, that the Borrower shall not be required to indemnify,
protect, defend and hold harmless any Liquidity Indemnitee in respect of
any Expense of such Liquidity Indemnitee to the extent such Expense is (i)
attributable to the gross negligence or willful misconduct of such
Liquidity Indemnitee or any other Liquidity Indemnitee, (ii) ordinary and
usual operating overhead expense, or (iii) attributable to the failure by
such Liquidity Indemnitee or any other Liquidity Indemnitee to perform or
observe any agreement, covenant or condition on its part to be performed or
observed in this Agreement, the Intercreditor Agreement, the Liquidity
Facility Fee Letter applicable to this Agreement or any other Operative
Agreement to which it is a party. The indemnities contained in Section 6(c)
of the Leased Aircraft Participation Agreements or 6(b) of the Owned
Aircraft Participation Agreements, as the case may be, and the provisions
of Sections 3.01, 3.02, 3.03, 3.09, 7.05 and 7.07 hereof, shall survive the
termination of this Agreement.
Section 7.06. Liability of the Liquidity Provider.
(a) Neither the Liquidity Provider nor any of its officers, employees,
directors or Affiliates shall be liable or responsible for: (i) the use
which may be made of the Advances or any acts or omissions of the Borrower
or any beneficiary or transferee in connection therewith; (ii) the
validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; or (iii) the making of
Advances by the Liquidity Provider against delivery of a Notice of
Borrowing and other documents which do not comply with the terms hereof;
provided, however, that the Borrower shall have a claim against the
Liquidity Provider, and the Liquidity Provider shall be liable to the
Borrower, to the extent of any damages suffered by the Borrower which were
the result of (A) the Liquidity Provider's willful misconduct or negligence
in determining whether documents presented hereunder comply with the terms
hereof, or (B) any breach by the Liquidity Provider of any of the terms of
this Agreement, including, but not limited to, the Liquidity Provider's
failure to make lawful payment hereunder after the delivery to it by the
Borrower of a Notice of Borrowing strictly complying with the terms and
conditions hereof.
(b) Neither the Liquidity Provider nor any of its
officers, employees, directors or Affiliates shall be liable or responsible
in any respect for (i) any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with this Agreement or any Notice of Borrowing
delivered hereunder, or (ii) any action, inaction or omission which may be
taken by it in good faith, absent willful misconduct or negligence (in
which event the extent of the Liquidity Provider's potential liability to
the Borrower shall be limited as set forth in the immediately preceding
paragraph), in connection with this Agreement or any Notice of Borrowing.
Section 7.07. Costs, Expenses and Taxes. The Borrower
agrees to pay, or cause to be paid (A) on the Effective Date and on such
later date or dates on which the Liquidity Provider shall make demand, all
reasonable out-of-pocket costs and expenses (including, without limitation,
the reasonable fees and expenses of outside counsel for the Liquidity
Provider) of the Liquidity Provider in connection with the preparation,
negotiation, execution, delivery, filing and recording of this Agreement,
any other Operative Agreement and any other documents which may be
delivered in connection with this Agreement and (B) on demand, all
reasonable costs and expenses (including reasonable counsel fees and
expenses) of the Liquidity Provider in connection with (i) the enforcement
of this Agreement or any other Operative Agreement, (ii) the modification
or amendment of, or supplement to, this Agreement or any other Operative
Agreement or such other documents which may be delivered in connection
herewith or therewith (whether or not the same shall become effective) or
(iii) any action or proceeding relating to any order, injunction, or other
process or decree restraining or seeking to restrain the Liquidity Provider
from paying any amount under this Agreement, the Intercreditor Agreement or
any other Operative Agreement or otherwise affecting the application of
funds in the Class C Cash Collateral Account. In addition, the Borrower
shall pay any and all recording, stamp and other similar taxes and fees
payable or determined to be payable in connection with the execution,
delivery, filing and recording of this Agreement, any other Operative
Agreement and such other documents, and agrees to save the Liquidity
Provider harmless from and against any and all liabilities with respect to
or resulting from any delay in paying or omission to pay such taxes or
fees.
Section 7.08. Binding Effect; Participations. (a)
This Agreement shall be binding upon and inure to the benefit of the
Borrower and the Liquidity Provider and their respective successors and
assigns, except that neither the Liquidity Provider (except as otherwise
provided in this Section 7.08) nor (except as contemplated by Section 3.08)
the Borrower shall have the right to assign its rights or obligations
hereunder or any interest herein without the prior written consent of the
other party, subject to the requirements of Section 7.08(b). The Liquidity
Provider may grant participations herein or in any of its rights hereunder
(including, without limitation, funded participations and participations in
rights to receive interest payments hereunder) and under the other
Operative Agreements to such Persons (other than US Airways or any of its
affiliates) as the Liquidity Provider may in its sole discretion select,
subject to the requirements of Section 7.08(b). No such participation by
the Liquidity Provider, however, will relieve the Liquidity Provider of its
obligations hereunder. In connection with any participation or any proposed
participation, the Liquidity Provider may disclose to the participant or
the proposed participant any information that the Borrower is required to
deliver or to disclose to the Liquidity Provider pursuant to this
Agreement. The Borrower acknowledges and agrees that the Liquidity
Provider's source of funds may derive in part from its participants.
Accordingly, references in this Agreement and the other Operative
Agreements to determinations, reserve and capital adequacy requirements,
increased costs, reduced receipts, additional amounts due pursuant to
Section 3.03(a) and the like as they pertain to the Liquidity Provider
shall be deemed also to include those of each of its participants that are
banks (subject, in each case, if any such participant is not a bank that is
(i) organized under the laws of the United States or any State thereof and
(ii) a member bank of the Federal Reserve System with deposits exceeding
$1,000,000,000 (such a bank, a "Reference Bank"), to the maximum amount
that would have been directly incurred by any Reference Bank organized
under the laws of the United States or any State thereof if such Reference
Bank, rather than the participant, had held the interest participated).
(b) If, pursuant to subsection (a) above, the Liquidity
Provider sells any participation in this Agreement to any bank or other
entity (each, a "Transferee"), then, concurrently with the effectiveness of
such participation, the Transferee shall (i) represent to the Liquidity
Provider (for the benefit of the Liquidity Provider and the Borrower)
either (A) that it is incorporated under the laws of the United States or a
state thereof or (B) that under applicable law and treaties, no taxes will
be required to be withheld with respect to any payments to be made to such
Transferee in respect of this Agreement, (ii) furnish to the Liquidity
Provider and the Borrower either (x) a statement that it is incorporated
under the laws of the United States or a state thereof or (y) if it is not
so incorporated, two copies of a properly completed United States Internal
Revenue Service Form W-8ECI or Form W-8BEN, as appropriate, or other
applicable form, certificate or document prescribed by the Internal Revenue
Service certifying, in each case, such Transferee's entitlement to a
complete exemption from United States federal withholding tax in respect to
any and all payments to be made hereunder, and (iii) agree (for the benefit
of the Liquidity Provider and the Borrower) to provide the Liquidity
Provider and the Borrower a new Form W-8ECI or Form W-8BEN, as appropriate,
(A) on or before the date that any such form expires or becomes obsolete or
(B) after the occurrence of any event requiring a change in the most recent
form previously delivered by it and prior to the immediately following due
date of any payment by the Borrower hereunder, certifying in the case of a
Form W-8BEN or Form W-8ECI that such Transferee is entitled to a complete
exemption from United States federal withholding tax on payments under this
Agreement. Unless the Borrower has received forms or other documents
reasonably satisfactory to it (and required by applicable law) indicating
that payments hereunder are not subject to United States federal
withholding tax, the Borrower will withhold taxes as required by law from
such payments at the applicable statutory rate.
(c) Notwithstanding the other provisions of this Section
7.08, the Liquidity Provider may assign and pledge all or any portion of
the Advances owing to it to any Federal Reserve Bank or the United States
Treasury as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued
by such Federal Reserve Bank, provided that any payment in respect of such
assigned Advances made by the Borrower to the Liquidity Provider in
accordance with the terms of this Agreement shall satisfy the Borrower's
obligations hereunder in respect of such assigned Advance to the extent of
such payment. No such assignment shall release the Liquidity Provider from
its obligations hereunder.
Section 7.09. Severability. Any provision of this
Agreement which is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition, unenforceability or non-authorization without
invalidating the remaining provisions hereof or affecting the validity,
enforceability or legality of such provision in any other jurisdiction.
Section 7.10. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
Section 7.11. Submission to Jurisdiction; Waiver of
Jury Trial; Waiver of Immunity. (a) Each of the parties hereto hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any
legal action or proceeding relating to this
Agreement or any other Operative Agreement, or
for recognition and enforcement of any judgment
in respect hereof or thereof, to the
nonexclusive general jurisdiction of the courts
of the State of New York, the courts of the
United States of America for the Southern
District of New York, and the appellate courts
from any thereof;
(ii) consents that any such action or proceeding may
be brought in such courts, and waives any
objection that it may now or hereafter have to
the venue of any such action or proceeding in
any such court or that such action or
proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;
(iii) agrees that service of process in any such
action or proceeding may be effected by mailing
a copy thereof by registered or certified mail
(or any substantially similar form of mail),
postage prepaid, to each party hereto at its
address set forth in Section 7.02 hereof, or at
such other address of which the Liquidity
Provider shall have been notified pursuant
thereto; and
(iv) agrees that nothing herein shall affect the
right to effect service of process in any other
manner permitted by law or shall limit the
right to ▇▇▇ in any other jurisdiction.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY
AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE
RELATIONSHIP THAT IS BEING ESTABLISHED, including, without limitation,
contract claims, tort claims, breach of duty claims and all other common
law and statutory claims. The Borrower and the Liquidity Provider each
warrant and represent that it has reviewed this waiver with its legal
counsel, and that it knowingly and voluntarily waives its jury trial rights
following consultation with such legal counsel. THIS WAIVER IS IRREVOCABLE,
AND CANNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT.
Section 7.12. Execution in Counterparts. This
Agreement may be executed in any number of counterparts and by different
parties hereto on separate counterparts, each of which counterparts, when
so executed and delivered, shall be deemed to be an original and all of
which counterparts, taken together, shall constitute but one and the same
Agreement.
Section 7.13. Entirety. This Agreement, the
Intercreditor Agreement and the other Operative Agreements to which the
Liquidity Provider is a party constitute the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes all
prior understandings and agreements of such parties.
Section 7.14. Headings. Section headings in this
Agreement are included herein for convenience of reference only and shall
not constitute a part of this Agreement for any other purpose.
Section 7.15. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE
ADVANCES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS
OF THE LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S
RIGHTS TO DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES
HEREUNDER, SHALL BE UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR
PERFORMED, IN EACH CASE STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first set forth above.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, not in its
individual capacity but solely as
Subordination Agent, as agent and
trustee for the Class C Trust, as
Borrower
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL SERVICES INC.,
as Liquidity Provider
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Annex I to Revolving Credit Agreement
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned borrower (the "Borrower"), hereby certifies to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Capital Services Inc. (the "Liquidity Provider"), with reference to the
Revolving Credit Agreement (2000-3C) dated as of November 2, 2000, between
the Borrower and the Liquidity Provider (the "Liquidity Agreement"; the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of an Interest Advance by the Liquidity Provider to
be used, subject to clause (3)(v) below, for the payment of the
interest on the Class C Certificates which was payable on
____________, ____ (the "Distribution Date") in accordance with
the terms and provisions of the Class C Trust Agreement and the
Class C Certificates, which Advance is requested to be made on
____________, ____. The Interest Advance should be transferred to
[name of bank/wire instructions/ABA number] in favor of account
number [ __ ], reference [ __ ].
(3) The amount of the Interest Advance requested hereby
(i) is $_______________.__, to be applied in respect of the
payment of the interest which is due and payable on the Class C
Certificates on the Distribution Date, (ii) does not include any
amount with respect to the payment of principal of, or premium on,
the Class C Certificates or the Class G Certificates, or interest
on the Class G Certificates, (iii) was computed in accordance with
the provisions of the Class C Certificates, the Class C Trust
Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), (iv) does not
exceed the Maximum Available Commitment on the date hereof, (v)
does not include any amount of interest which was due and payable
on the Class C Certificates on such Distribution Date but which
remains unpaid due to the failure of the Depositary to pay any
amount of accrued interest on the Deposits on such Distribution
Date and (vi) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will apply the same in
accordance with the terms of Section 3.6(b) of the Intercreditor
Agreement, (b) no portion of such amount shall be applied by the
Borrower for any other purpose and (c) no portion of such amount
until so applied shall be commingled with other funds held by the
Borrower.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, the making of the Interest Advance as requested by
this Notice of Borrowing shall automatically reduce, subject to
reinstatement in accordance with the terms of the Liquidity Agreement, the
Maximum Available Commitment by an amount equal to the amount of the
Interest Advance requested to be made hereby as set forth in clause (i) of
paragraph (3) of this Notice of Borrowing and such reduction shall
automatically result in corresponding reductions in the amounts available
to be borrowed pursuant to a subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and
delivered this Notice of Borrowing as of the ____ day of __________, ____.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, not in its
individual capacity but solely as
Subordination Agent, as Borrower
By:__________________________________
Name:
Title:
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest Advance Notice
of Borrowing]
Annex II to
Revolving Credit Agreement
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned borrower (the "Borrower"), hereby certifies to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Capital Services Inc. (the "Liquidity Provider"), with reference to the
Revolving Credit Agreement (2000-3C) dated as of November 2, 2000, between
the Borrower and the Liquidity Provider (the "Liquidity Agreement"; the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Non-Extension Advance by the Liquidity
Provider to be used for the funding of the Class C Cash Collateral
Account in accordance with Section 3.6(d) of the Intercreditor
Agreement, which Advance is requested to be made on __________,
____. The Non-Extension Advance should be transferred to [name of
bank/wire instructions/ABA number] in favor of account number [ __
], reference [ __ ].
(3) The amount of the Non-Extension Advance requested
hereby (i) is $_______________.__, which equals the Maximum
Available Commitment on the date hereof and is to be applied in
respect of the funding of the Class C Cash Collateral Account in
accordance with Section 3.6(d) of the Intercreditor Agreement,
(ii) does not include any amount with respect to the payment of
the principal of, or premium on, the Class C Certificates or the
Class G Certificates, or interest on the Class G Certificates,
(iii) was computed in accordance with the provisions of the Class
C Certificates, the Class C Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as
Schedule I), and (iv) has not been and is not the subject of a
prior or contemporaneous Notice of Borrowing under the Liquidity
Agreement.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such amount
in the Class C Cash Collateral Account and apply the same in
accordance with the terms of Section 3.6(d) of the Intercreditor
Agreement, (b) no portion of such amount shall be applied by the
Borrower for any other purpose and (c) no portion of such amount
until so applied shall be commingled with other funds held by the
Borrower.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Non-Extension Advance as
requested by this Notice of Borrowing shall automatically and irrevocably
terminate the obligation of the Liquidity Provider to make further Advances
under the Liquidity Agreement; and (B) following the making by the
Liquidity Provider of the Non-Extension Advance requested by this Notice of
Borrowing, the Borrower shall not be entitled to request any further
Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of __________, ____.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, not in its
individual capacity but solely as
Subordination Agent, as Borrower
By:__________________________________
Name:
Title:
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Non-Extension Advance Notice
of Borrowing]
Annex III to
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned borrower (the "Borrower"), hereby certifies to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Capital Services Inc. (the "Liquidity Provider"), with reference to the
Revolving Credit Agreement (2000-3C) dated as of November 2, 2000, between
the Borrower and the Liquidity Provider (the "Liquidity Agreement"; the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Downgrade Advance by the Liquidity Provider
to be used for the funding of the Class C Cash Collateral Account
in accordance with Section 3.6(c) of the Intercreditor Agreement
(i) by reason of the downgrading of the short-term unsecured debt
rating of the Guarantor issued by either Rating Agency below the
Threshold Rating or (ii) because the Guarantee Agreement has
ceased to be in full force and effect or has become invalid or
unenforceable or the Guarantor has denied its liability
thereunder, which Advance is requested to be made on __________,
____. The Downgrade Advance should be transferred to [name of
bank/wire instructions/ABA number] in favor of account number [ __
], reference [ __ ].
(3) The amount of the Downgrade Advance requested hereby
(i) is $_______________.__, which equals the Maximum Available
Commitment on the date hereof and is to be applied in respect of
the funding of the Class C Cash Collateral Account in accordance
with Section 3.6(c) of the Intercreditor Agreement, (ii) does not
include any amount with respect to the payment of the principal
of, or premium on, the Class C Certificates or the Class G
Certificates, or interest on the Class G Certificates, (iii) was
computed in accordance with the provisions of the Class G
Certificates, the Class C Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as
Schedule I), and (iv) has not been and is not the subject of a
prior or contemporaneous Notice of Borrowing under the Liquidity
Agreement.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such amount
in the Class C Cash Collateral Account and apply the same in
accordance with the terms of Section 3.6(c) of the Intercreditor
Agreement, (b) no portion of such amount shall be applied by the
Borrower for any other purpose and (c) no portion of such amount
until so applied shall be commingled with other funds held by the
Borrower.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Downgrade Advance as requested
by this Notice of Borrowing shall automatically and irrevocably terminate
the obligation of the Liquidity Provider to make further Advances under the
Liquidity Agreement; and (B) following the making by the Liquidity Provider
of the Downgrade Advance requested by this Notice of Borrowing, the
Borrower shall not be entitled to request any further Advances under the
Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and
delivered this Notice of Borrowing as of the ____ day of _________, _____.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, not in its
individual capacity but solely as
Subordination Agent, as Borrower
By:__________________________________
Name:
Title:
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Downgrade Advance Notice
of Borrowing]
Annex IV to
Revolving Credit Agreement
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned borrower (the "Borrower"), hereby certifies to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Capital Services Inc. (the "Liquidity Provider"), with reference to the
Revolving Credit Agreement (2000-3C) dated as of November 2, 2000, between
the Borrower and the Liquidity Provider (the "Liquidity Agreement"; the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Final Advance by the Liquidity Provider to
be used for the funding of the Class C Cash Collateral Account in
accordance with Section 3.6(i) of the Intercreditor Agreement by
reason of the receipt by the Borrower of a Termination Notice from
the Liquidity Provider with respect to the Liquidity Agreement,
which Advance is requested to be made on ____________, ____. The
Final Advance should be transferred to [name of bank/wire
instructions/ABA number] in favor of account number [ __ ],
reference [ __ ].
(3) The amount of the Final Advance requested hereby (i)
is $_________________.__, which equals the Maximum Available
Commitment on the date hereof and is to be applied in respect of
the funding of the Class C Cash Collateral Account in accordance
with Section 3.6(i) of the Intercreditor Agreement, (ii) does not
include any amount with respect to the payment of principal of, or
premium on, the Class C Certificates or the Class G Certificates,
or interest on the Class G Certificates, (iii) was computed in
accordance with the provisions of the Class C Certificates, the
Class C Trust Agreement and the Intercreditor Agreement (a copy of
which computation is attached hereto as Schedule I), and (iv) has
not been and is not the subject of a prior or contemporaneous
Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such amount
in the Class C Cash Collateral Account and apply the same in
accordance with the terms of Section 3.6(i) of the Intercreditor
Agreement, (b) no portion of such amount shall be applied by the
Borrower for any other purpose and (c) no portion of such amount
until so applied shall be commingled with other funds held by the
Borrower.
(5) The Borrower hereby requests that the Advance
requested hereby be a Base Rate Advance [and that such Base Rate
Advance be converted into a LIBOR Advance on the third Business
Day following your receipt of this notice]1.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Final Advance as requested by
this Notice of Borrowing shall automatically and irrevocably terminate the
obligation of the Liquidity Provider to make further Advances under the
Liquidity Agreement; and (B) following the making by the Liquidity Provider
of the Final Advance requested by this Notice of Borrowing, the Borrower
shall not be entitled to request any further Advances under the Liquidity
Agreement.
IN WITNESS WHEREOF, the Borrower has executed and
delivered this Notice of Borrowing as of the ____ day of ___________, ____.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, not in its
individual capacity but solely as
Subordination Agent, as Borrower
By___________________________________
Name:
Title:
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Final Advance Notice of
Borrowing]
Annex V to
Revolving Credit Agreement
NOTICE OF TERMINATION
[Date]
State Street Bank and Trust Company of
Connecticut, National Association,
as Subordination Agent, as Borrower
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Revolving Credit Agreement dated as of November 2, 2000,
between State Street Bank and Trust Company of
Connecticut, National Association, as Subordination
Agent, as agent and trustee for the US Airways Pass
Through Trust, 2000-3C, as Borrower, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Capital Services Inc. (the "Liquidity Agreement")
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.01 of
the Liquidity Agreement, by reason of the occurrence of a Liquidity Event
of Default and the existence of a Performing Note Deficiency (each as
defined therein), we are giving this notice to you in order to cause (i)
our obligations to make Advances (as defined therein) under such Liquidity
Agreement to terminate on the fifth Business Day after the date on which
you receive this notice and (ii) you to request a Final Advance under the
Liquidity Agreement pursuant to Section 3.6(i) of the Intercreditor
Agreement (as defined in the Liquidity Agreement) as a consequence of your
receipt of this notice.
THIS NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR
UNDER THE LIQUIDITY AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE
LIQUIDITY AGREEMENT WILL TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE
ON WHICH YOU RECEIVE THIS NOTICE.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services Inc.,
as Liquidity Provider
By_________________________________
Name:
Title:
cc: State Street Bank and Trust Company of
Connecticut, National Association,
as Class C Trustee
Annex VI to
Revolving Credit Agreement
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement dated as of November 2, 2000, between
State Street Bank and Trust Company of Connecticut, National
Association, as Subordination Agent, as agent and trustee for the
US Airways Pass Through Trust, 2000-3C, as Borrower, and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Capital Services Inc. (the "Liquidity Agreement")
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
------------------------------
[Name of Transferee]
------------------------------
[Address of Transferee]
all rights and obligations of the undersigned as Borrower under the
Liquidity Agreement referred to above. The transferee has succeeded the
undersigned as Subordination Agent under the Intercreditor Agreement
referred to in the first paragraph of the Liquidity Agreement, pursuant to
the terms of Section 8.1 of the Intercreditor Agreement.
By this transfer, all rights of the undersigned as
Borrower under the Liquidity Agreement are transferred to the transferee
and the transferee shall hereafter have the sole rights and obligations as
Borrower thereunder. The undersigned shall pay any costs and expenses of
such transfer, including, but not limited to, transfer taxes or
governmental charges.
We ask that this transfer be effective as of
_______________, ____.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, not in its
individual capacity but solely as
Subordination Agent, as Borrower
By___________________________________
Name:
Title:
By___________________________________
Name:
Title:
EXHIBIT I to
Revolving Credit Agreement
FORM OF GUARANTEE AGREEMENT
_________ __, 2000
US Airways Pass Through Trust 2000-3C
Ladies and Gentlemen:
In consideration of the Revolving Credit Agreement (the
"Agreement") dated as of _____ __, 2000 between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital
Services Inc., a Delaware corporation (hereinafter "MSCS") and State Street
Bank and Trust Company of Connecticut, National Association, as
Subordination Agent, as agent and trustee for the US Airways Pass Through
Trust 2000-3C ("Counterparty"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co., a
Delaware corporation (hereinafter "MSDW"), hereby irrevocably and
unconditionally guarantees to Counterparty, with effect from the date of
the Agreement, the due and punctual payment of all amounts payable by MSCS
under the Agreement when the same shall become due and payable, whether on
scheduled payment dates, upon demand, upon declaration of termination or
otherwise, in accordance with the terms of the Agreement and giving effect
to any applicable grace period under the express terms of the Agreement.
Upon failure of MSCS punctually to pay any such amounts, MSDW agrees to pay
or cause to be paid such amounts. It is understood and agreed that the
obligations of MSCS under the Agreement to make Advances (as defined in the
Agreement) are, and shall in any event, for all purposes of the Guarantee,
be deemed to constitute, amounts payable by MSCS under the Agreement.
MSDW hereby agrees that its obligations hereunder shall be
unconditional and will not be discharged except by complete payment of the
amounts payable under the Agreement, irrespective of any claim as to the
Agreement's validity, regularity or enforceability or the lack of authority
of MSCS to execute or deliver the Agreement; or any change in or amendment
to the Agreement; or any waiver or consent by Counterparty with respect to
any provisions thereof; or the absence of any action to enforce the
Agreement or the recovery of any judgment against MSCS or of any action to
enforce a judgment against MSCS under the Agreement; or any similar
circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor generally. MSDW hereby waives
diligence, presentment, demand on MSDW or MSCS for payment or otherwise,
filing of claims, requirement of a prior proceeding against MSCS and
protest or notice, except as provided for in the Agreement with respect to
amounts payable by MSCS. If at any time payment under the Agreement is
rescinded or must be otherwise restored or returned by Counterparty upon
the insolvency, bankruptcy or reorganization of MSCS or MSDW or otherwise,
MSDW's obligations hereunder with respect to such payment shall be
reinstated upon such restoration or return being made by Counterparty.
MSDW represents to Counterparty as of the date hereof that:
(1) it is duly organized and validly existing under the laws of
the jurisdiction of its incorporation and has full power and legal right to
execute and deliver this Guarantee and to perform the provisions of this
Guarantee on its part to be performed;
(2) its execution, delivery and performance of this Guarantee have
been and remain duly authorized by all necessary corporate action and do
not contravene any provision of its certificate of incorporation or by-laws
or any law, regulation or contractual restriction binding on it or its
assets;
(3) all consents, authorizations, approvals and clearances
(including, without limitation, any necessary exchange control approval)
and notifications, reports and registrations requisite for its due
execution, delivery and performance of this Guarantee have been obtained
from or, as the case may be, filed with the relevant governmental
authorities having jurisdiction and remain in full force and effect and all
conditions thereof have been duly complied with and no other action by, and
no notice to or filing with, any governmental authority having jurisdiction
is required for such execution, delivery or performance; and
(4) this Guarantee is its legal, valid and binding obligation
enforceable against it in accordance with its terms except as enforcement
hereof may be limited by applicable bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights or by
general equity principles.
By accepting this Guarantee and entering into the Agreement,
Counterparty agrees that MSDW shall be subrogated to all rights of
Counterparty against MSCS in respect of any amounts paid by MSDW pursuant
to this Guarantee, provided that MSDW shall be entitled to enforce or to
receive any payment arising out of or based upon such right of subrogation
only to the extent that it has paid all amounts payable by MSCS under the
Agreement.
This Guarantee shall be governed by and construed in accordance
with the laws of the State of New York. All capitalized terms not otherwise
defined herein shall have the respective meanings assigned to them in the
Agreement.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & CO.
By
-----------------------------------
Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Swap Group
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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1 Bracketed language may be included at Borrower's option.