EXECUTION
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REVOLVING CREDIT AGREEMENT
(2000-1G)
Dated as of March 3, 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 2000-1G
as Borrower
and
BAYERISCHE LANDESBANK GIROZENTRALE, as
Liquidity Provider
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Relating to
US Airways Pass Through Trust 2000-1G
8.11% US Airways Pass Through Certificates,
Series 2000-1G
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.......................................................1
Section 1.01 Certain Defined Terms......................................1
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENT...............................7
Section 2.01 The Advances...............................................7
Section 2.02 Making the Advances........................................7
Section 2.03 Fees.......................................................9
Section 2.04 Reductions or Termination of the Maximum Commitment........9
Section 2.05 Repayments of Interest Advances or the Final Advance.......9
Section 2.06 Repayments of Provider Advances...........................10
Section 2.07 Payments to the Liquidity Provider Under the
Intercreditor Agreement...................................11
Section 2.08 Book Entries..............................................11
Section 2.09 Payments from Available Funds Only........................11
Section 2.10 Extension of the Expiry Date; Non-Extension Advance.......11
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...............................14
Section 3.05 Computations..............................................16
Section 3.06 Payment on Non-Business Days..............................16
Section 3.07 Interest..................................................16
Section 3.08 Replacement of Borrower...................................17
Section 3.09 Funding Loss Indemnification..............................17
Section 3.10 Illegality................................................18
ARTICLE IV CONDITIONS PRECEDENT............................................18
Section 4.01 Conditions Precedent to Effectiveness of Section 2.01.....18
Section 4.02 Conditions Precedent to Borrowing.........................20
ARTICLE V COVENANTS........................................................20
Section 5.01 Affirmative Covenants of the Borrower.....................20
Section 5.02 Negative Covenants of the Borrower........................20
ARTICLE VI LIQUIDITY EVENTS OF DEFAULT.....................................20
Section 6.01 Liquidity Events of Default...............................20
ARTICLE VII MISCELLANEOUS..................................................21
Section 7.01 Amendments, Etc...........................................21
Section 7.02 Notices, Etc..............................................21
Section 7.03 No Waiver; Remedies.......................................22
Section 7.04 Further Assurances........................................22
Section 7.05 Indemnification; Survival of Certain Provisions...........22
Section 7.06 Liability of the Liquidity Provider.......................23
Section 7.07 Costs, Expenses and Taxes.................................23
Section 7.08 Binding Effect; Participations............................24
Section 7.09 Severability..............................................25
Section 7.10 GOVERNING LAW.............................................25
Section 7.11 Submission to Jurisdiction; Waiver of Jury Trial;
Waiver of Immunity........................................25
Section 7.12 Execution in Counterparts.................................26
Section 7.13 Entirety..................................................26
Section 7.14 Headings..................................................27
Section 7.15 LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES..........27
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
REVOLVING CREDIT AGREEMENT (2000-1G)
This REVOLVING CREDIT AGREEMENT (2000-1G) dated as of March 3,
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 G Trust (as defined
below) (the "Borrower"), and BAYERISCHE LANDESBANK GIROZENTRALE, a public
law banking institution organized under the laws of the Free State of
Bavaria, Germany (the "Liquidity Provider").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Class G 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 G Trust is issuing the
Class G Certificates; and
WHEREAS, the Borrower, in order to support the timely payment
of a portion of the interest on the Class G 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.
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, 2.00% per annum, (y) with
respect to any Unapplied Provider Advance, the rate per annum specified in
the 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.
"Consent Notice" has the meaning specified in Section 2.10.
"Consent Period" has the meaning specified in Section 2.10.
"Deposits" has the meaning assigned to such terms in the
Deposit Agreement.
"Depositary" has the meaning assigned to such term in the
Deposit Agreement.
"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 G Certificates, as
the same may be amended, modified or supplemented from time to time in
accordance with the terms thereof.
"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 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 March 1, 2001, initially, or any date to
which the Expiry Date is extended pursuant to Section 2.10.
"Extension Notice" has the meaning specified in Section 2.10.
"Facility Office" means the Facility Office of the Liquidity
Provider presently located at Munich, Germany, 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).
"Intercreditor Agreement" means the Intercreditor
Agreement dated the date hereof, among 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 G Cash Collateral
Account for the purpose of paying interest on the Class G
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 directors, officers, employees and agents of the Liquidity Provider,
and (iii) the successors and permitted assigns of the persons described in
clauses (i) and (ii), 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 $34,266,128.70, as the
same may be reduced 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 February 25, 2000 relating to the Class G Certificates, as
such Prospectus Supplement may be amended or supplemented.
"Provider Advance" means a Downgrade Advance or a Non-Extension
Advance.
"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 G Certificates, that would be payable on the
Class G 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 G Certificates on such day and without regard to
expected future payments of principal on the Class G 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.
"Tax Letter" means the letter dated the date hereof between the
Liquidity Provider and US Airways pertaining to this Agreement.
"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 G Certificates
have been paid in full (or provision has been made for such payment in
accordance with the Intercreditor Agreement and the Class G 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.
"Withdrawal Notice" has the meaning specified in Section 2.10.
(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", "Class C Certificates", "Class G Cash
Collateral Account", "Class G Certificates", "Class G Certificateholders",
"Class G Trust", "Class G Trust Agreement", "Class G
Trustee", "Closing Date", "Controlling Party", "Corporate Trust
Office", "Delivery Period Expiry Date", "Distribution Date",
"Downgraded Facility", "Equipment Notes", "Fee Letter", "Final Legal
Distribution Date", "Financing Agreement", "Indenture", "Interest
Payment Date", "Investment Earnings", "Leased Aircraft", "Liquidity
Facility", "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", "Series G Equipment
Note", "Scheduled Payment", "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 G 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 G
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 Liquidity Provider's short-term unsecured debt
rating issued by either Rating Agency below the applicable Threshold Rating
(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 G
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 G 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. Each Notice of Borrowing shall be
effective upon delivery of a copy thereof to the Liquidity Provider's New
York Branch at the address specified in Section 7.02. (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 G Cash Collateral Account, the Liquidity Provider shall have no
interest in or rights to the Class G Cash Collateral Account, such Advance
or any other amounts from time to time on deposit in the Class G 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 2.03Fees
The Borrower agrees to pay to the Liquidity Provider the fees
set forth in the Fee Letter applicable to this Agreement.
Section 2.04 Reductions or Termination of the Maximum
Commitment.
(a) Automatic Reduction. Promptly following each date on which
the Required Amount is reduced as a result of a reduction in the Pool
Balance of the Class G Certificates or otherwise, the Maximum Commitment
shall automatically be reduced to an amount equal to such reduced Required
Amount (as calculated by the Borrower). The Borrower shall give notice of
any such automatic reduction 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 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 G Cash Collateral Account, invested and
withdrawn from the Class G 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 G Cash Collateral
Account for the purpose of paying interest on the Class G 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 G 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 G 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 G 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 G
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 Borrower may, from time to time, by notice to the Liquidity
Provider (each such notice being an "Extension Notice") given no later than
the 40th day and no earlier than the 60th day prior to the then applicable
Expiry Date, request an extension of the Expiry Date to the earlier of (i)
the date which is 15 days after the Final Legal Distribution Date for the
Class G Certificates and (ii) the date that is the day immediately
preceding the 364th day occurring after the last day of the Consent Period
(as hereinafter defined). Whether or not the Liquidity Provider has
received a request from the Borrower, such Liquidity Provider may, but
shall not be obligated to, by a notice (a "Consent Notice") to the
Borrower, given during the period commencing on the date that is 60 days
prior to the Expiry Date then in effect and ending on the date that is 25
days prior to the Expiry Date then in effect for such Liquidity Facility
(such period, with respect to such Liquidity Facility, the "Consent
Period"), consent to such extension of the Expiry Date, which consent may
be given or withheld by the Liquidity Provider in its absolute and sole
discretion; provided, however, that such extension shall not be effective
with respect to the Liquidity Provider if by a notice (a "Withdrawal
Notice") to the Borrower during the Consent Period the Liquidity Provider
revokes its Consent Notice. If a Withdrawal Notice has been given during
the applicable Consent Period or if the Liquidity Provider shall not have
delivered a Consent Notice within the Consent Period (and, in each case, 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 the date on which the Consent Period ends (but prior
to the then effective 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; provided, however, that if (a) the Borrower
delivers a Notice of Borrowing for a Non-Extension Advance after the
expiration of the Consent Period and the Liquidity Provider shall not have
received a request for an extension of the Expiry Date during the Consent
Period, or (b) if the Liquidity Provider shall not have received any
request for such an extension prior to the Expiry Date, the Liquidity
Provider may elect in writing, in the case of clause (a) until the earlier
of (x) the Expiry Date and (y) seven Business Days after receiving such
Notice of Borrowing and in the case of clause (b) at any time prior to the
Expiry Date (if the Expiry Date is not a Business Day, the immediately
preceding Business Day), to extend the Expiry Date to the earlier of (i)
the date which is 15 days after the Final Legal Distribution Date for the
Class G Certificates and (ii) the date that is the day immediately
preceding the 364th day after the date of such election, and, in the case
of clause (a), the obligation of the Liquidity Provider to make such
Non-Extension Advance shall be deferred until the earlier of (x) the Expiry
Date and (y) the next Business Day after such seven Business Day period. If
a Non-Extension Advance shall have been made and the Liquidity Provider
shall not have been replaced within 30 days after the date of such
Non-Extension Advance, or such Non-Extension Advance shall have been made
under the circumstances described in the proviso to the preceding sentence,
the Liquidity Provider may elect in writing to renew the Liquidity Facility
on the terms hereof but with a new Expiry Date which shall be the earlier
of (i) the date which is 15 days after the Final Legal Maturity Date for
the Class G Certificates and (ii) the date that is the day immediately
preceding the 364th day occurring after the date on which such election is
made, and any such renewal shall become effective upon the execution and
delivery of a Replacement Liquidity Facility in accordance with the
provisions of Section 3.6(e) 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 <-1- 34>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 any permitted assignee or
participant of the initial Liquidity Provider which is not a bank shall not
be entitled to the benefits of the preceding two paragraphs (but without
limiting the provisions of 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 any permitted assignee or
participant of the initial Liquidity Provider which is not a bank shall not
be entitled to the benefits of the preceding two paragraphs (but without
limiting the provisions of 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, 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 First Union Bank
International, Swift/BIC - Code ▇▇▇▇▇▇▇▇ ▇▇▇ (Fedwire 0260 0509 2/CHIPS/ABA
0509) in favor of acount number 2000 193534 122, Bayerische Landesbank
Girozentrale, Munich, Swift/BIC - Code ▇▇▇▇▇▇▇▇, Reference Dept. - 7650 -
US Airways Liquidity Facility 2000 1G.
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 G Cash Collateral
Account to pay interest on the Class G 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 G 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 <-1-
34>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<-1-
34>) 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 G Certificates;
(v) An executed copy of each document, instrument,
certificate and opinion delivered on or before the
Closing Date pursuant to the Class G 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 G
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 Leases (related to Leased Aircraft)
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
(vii) 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 G
Certificates under the Class G Trust Agreement shall have been satisfied or
waived, and all conditions precedent to the purchase of the Class G
Certificates by the Underwriters under the Underwriting Agreement shall
have been satisfied (unless any of such conditions precedent shall have
been waived by the Underwriters).
(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.
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: BAYERISCHE LANDESBANK GIROZENTRALE
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attention: Aircraft Finance ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
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) or 6(b), as the case may
be, of the Participation Agreements. 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 Fee Letter applicable to
this Agreement (regardless of whether indemnified against pursuant to said
Sections or in such 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 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 Fee Letter applicable to this
Agreement or any other Operative Agreement to which it is a party. The
indemnities contained in Section 6(c) or 6(b), as the case may be, of the
Participation Agreements, 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 G 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, to the maximum amount that would
have been incurred by or attributable to the Liquidity Provider directly if
the Liquidity Provider, 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.
(c) The Liquidity Provider hereby waives any immunity it may
have from the jurisdiction of the courts of the United States or of any
State and waives any immunity any of its properties located in the United
States may have from attachment or execution upon a judgment entered by any
such court under the United States Foreign Sovereign Immunities Act of 1976
or any similar successor legislation.
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 G Trust, as Borrower
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
BAYERISCHE LANDESBANK GIROZENTRALE,
as Liquidity Provider
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Senior 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 BAYERISCHE LANDESBANK
GIROZENTRALE (the "Liquidity Provider"), with reference to the Revolving
Credit Agreement (2000-1G) dated as of March 3, 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 G Certificates which was payable on ____________, ____ (the
"Distribution Date") in accordance with the terms and
provisions of the Class G Trust Agreement and the Class G
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 G Certificates on the
Distribution Date, (ii) does not include any amount with respect to
the payment of principal of, or premium on, the Class G Certificates
[or the Class C Certificates, or interest on the Class C
Certificates,]1 (iii) was computed in accordance with the provisions
of the Class G Certificates, the Class G 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 G 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.
-------------
1 Include if Class C Certificates have been issued.
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 BAYERISCHE LANDESBANK
GIROZENTRALE (the "Liquidity Provider"), with reference to the Revolving
Credit Agreement (2000-1G) dated as of March 3, 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 G 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 G 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 G Certificates [or the Class C Certificates, or
interest on the Class C Certificates,]2 (iii) was computed in
accordance with the provisions of the Class G Certificates, the Class
G 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 G 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.
--------
2 Include if Class C Certificates have been issued.
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 asSubordination
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 BAYERISCHE LANDESBANK
GIROZENTRALE (the "Liquidity Provider"), with reference to the Revolving
Credit Agreement (2000-1G) dated as of March 3, 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 G Cash Collateral Account in accordance
with Section 3.6(c) of the Intercreditor Agreement by reason of the
downgrading of the short-term unsecured debt rating of the Liquidity
Provider issued by either Rating Agency below the Threshold Rating,
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 G 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
G Certificates [or the Class C Certificates, or interest on the Class
C Certificates,]3 (iii) was computed in accordance with the
provisions of the Class G Certificates, the Class G 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 G 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.
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3 Include if Class C Certificates have been issued.
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 BAYERISCHE LANDESBANK
GIROZENTRALE (the "Liquidity Provider"), with reference to the Revolving
Credit Agreement (2000-1G) dated as of March 3, 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 G 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 G 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 G
Certificates [or the Class C Certificates, or interest on the Class C
Certificates,]4 (iii) was computed in accordance with the provisions
of the Class G Certificates, the Class G 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 G 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.
--------
4 Include if Class C Certificates have been issued.
(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]5.
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:
--------------
5 Bracketed language may be included at Borrower's option.
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 March 3, 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, 2000-1G, as Borrower, and
Bayerisch")
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,
BAYERISCHE LANDESBANK
GIROZENTRALE,
as Liquidity Provider
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
cc: State Street Bank and Trust Company of
Connecticut, National Association,
as Class G Trustee
Annex VI to
Revolving Credit Agreement
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement dated as of March 3, 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, 2000-1G, as Borrower, and Bayerische
Landesbank Girozentrale (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 asSubordination
Agent, as Borrower
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title: