EXHIBIT 4.(d)(2)
IRREVOCABLE REVOLVING CREDIT AGREEMENT
CLASS B CERTIFICATES
Dated as of September 25, 1997
by and between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Subordination Agent,
as agent and trustee for the
Northwest Airlines 1997-1B Pass Through Trust,
as Borrower
and
ROYAL BANK OF CANADA
as Liquidity Provider
Relating to
Northwest Airlines 1997-1B Pass Through Trust
7.248% Northwest Airlines Pass Through Certificates,
Series 1997-1
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms ...................................... 1
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.1 The Advances ............................................. 6
Section 2.2 Making the Advances ...................................... 6
Section 2.3 Fees ..................................................... 8
Section 2.4 Reduction or Termination of the Commitment ............... 9
Section 2.5 Repayments of Interest Advances or the Final Advance ..... 10
Section 2.6 Repayments of Downgrade Advances and
Non-Extension Advances ................................... 10
Section 2.7 Payments to the Liquidity Provider Under
the Intercreditor Agreement .............................. 11
Section 2.8 Book Entries ............................................. 12
Section 2.9 Payments from Available Funds Only ....................... 12
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.1 Increased Costs .......................................... 12
Section 3.2 Capital Adequacy ......................................... 13
Section 3.3 Payments Free of Deductions .............................. 14
Section 3.4 Payments ................................................. 15
Section 3.5 Computations ............................................. 15
Section 3.6 Payment on Non-Business Days ............................. 15
Section 3.7 Interest ................................................. 15
Section 3.8 Replacement of Borrower .................................. 17
Section 3.9 Funding Loss Indemnification ............................. 17
Section 3.10 Illegality ............................................... 17
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1 Conditions Precedent to Effectiveness of Section 2.1 ..... 18
Section 4.2 Conditions Precedent to Borrowing ........................ 20
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ARTICLE V
COVENANTS
Section 5.1 Affirmative Covenants of the Borrower .................... 20
Section 5.2 Negative Covenants of the Borrower ....................... 21
ARTICLE VI
FINAL ADVANCE
Section 6.1 Final Advance ............................................ 21
ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendments, Etc. ......................................... 21
Section 7.2 Notices, Etc. ............................................ 22
Section 7.3 No Waiver; Remedies ...................................... 22
Section 7.4 Further Assurances ....................................... 22
Section 7.5 Indemnification; Survival of Certain Provisions .......... 23
Section 7.6 Liability of the Liquidity Provider ...................... 23
Section 7.7 Costs, Expenses and Taxes ................................ 24
Section 7.8 Binding Effect; Participations ........................... 25
Section 7.9 Severability ............................................. 26
Section 7.10 GOVERNING LAW ............................................ 26
Section 7.11 Submission to Jurisdiction; Waiver of Jury Trial;
Waiver of Immunity ....................................... 26
Section 7.12 Execution in Counterparts ................................ 27
Section 7.13 Entirety ................................................. 27
Section 7.14 Headings; Section References ............................. 28
Section 7.15 LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES ......... 28
ANNEX I -- Interest Advance Notice of Borrowing
ANNEX II -- Downgrade Advance Notice of Borrowing
ANNEX III -- Non-Extension Advance Notice of Borrowing
ANNEX IV -- Notice of Replacement Borrower
IRREVOCABLE REVOLVING CREDIT AGREEMENT
CLASS B CERTIFICATES
IRREVOCABLE REVOLVING CREDIT AGREEMENT, CLASS B CERTIFICATES dated
as of September 25, 1997 by and 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 B Trust
(as defined below) (the "Borrower"), and ROYAL BANK OF CANADA (the "Liquidity
Provider").
W I T N E S S E T H:
WHEREAS, pursuant to the Class B Trust Agreement (such term and all
other capitalized terms used in these recitals having the meanings set forth or
referred to in Section 1.1), the Class B Trust is issuing the Class B
Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a
portion of the interest on the Class B 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 1.1 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
3.1.
"Advance" means an Interest Advance, a Final Advance, a Downgrade
Advance, an Applied Downgrade Advance, a Non-Extension Advance, an Applied
Non-Extension Advance or an Unpaid Advance, as the case may be.
"Applicable Liquidity Rate" means the rate of interest specified in
Section 3.7 with respect to any Advance or other amount referred to in
this Agreement.
"Applicable Margin" means (x) with respect to any Unpaid Advance
(including an Applied Downgrade Advance or
Applied Non-Extension Advance) that is a LIBOR Advance, 2% and (y) with
respect to any Unpaid Advance (including an Applied Downgrade Advance or
Applied Non-Extension Advance) that is a Base Rate Advance, 0.50%
"Applied Downgrade Advance" has the meaning assigned to such term in
Section 2.6(a).
"Applied Non-Extension Advance" has the meaning assigned to such
term in Section 2.6(a).
"Available Commitment" means, at any time of determination, an
amount equal to (i) the Commitment at such time less (ii) subject to the
proviso contained in the third sentence of Section 2.2(a), the aggregate
amount of each Advance outstanding at such time; provided that following a
Downgrade Advance, a Non-Extension Advance or a Final Advance, the
Available Commitment shall be zero.
"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 the
higher of (i) the rate of interest per annum announced by the Liquidity
Provider in New York City from time to time in its sole discretion as its
United States Dollar prime commercial lending rate for such day, or (ii)
the rate quoted by the Liquidity Provider, at approximately 11:00 A.M.,
New York City time, to dealers in the New York Federal funds market for
overnight offering of dollars by the Liquidity Provider, for deposit plus
.50 of 1 percent (.50%).
"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 or pursuant to Section 6.1.
"Business Day" means any day other than a Saturday or Sunday or a
day on which commercial banks are required or authorized to close in
Minneapolis, Minnesota, New York, New York or, so long as any Class B
Certificate is outstanding, the city and state in which the Class B
Trustee maintains its Corporate Trust Office or receives or disburses
funds, and, if the applicable Business Day relates to any Advance or other
amount bearing interest based on the LIBOR Rate, on which dealings are
carried on in the London interbank market.
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"Commitment" means, initially, $5,048,196 as the same may be reduced
from time to time in accordance with Section 2.4(a).
"Downgrade Advance" means an Advance made pursuant to Section 2.2(b)
(i)
"Effective Date" has the meaning specified in Section 4.1. The
delivery of the certificate of the Liquidity Provider contemplated by
Section 4.1(e) shall be conclusive evidence that the Effective Date has
occurred.
"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 September 25, 2002, unless such date shall be
extended in accordance with Section 2.5(c) hereof, in which event the
"Expiry Date" shall be such extended date.
"Final Advance" means an Advance made pursuant to Section 2.2(c) and
6.1.
"Intercreditor Agreement" means the Intercreditor Agreement dated
the date hereof, by and among the Trustees, the Liquidity Provider, the
liquidity provider under each Liquidity Facility (other than this
Agreement) 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 2.2(a).
"Interest Period" means, with respect to any LIBOR Advance, each of the
following periods:
(i) the period beginning on the date such LIBOR Advance is
made (or is converted from a Base Rate Advance) and 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.
"Lending Office" means the lending office of the Liquidity Provider,
presently located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
or such other lending office as the Liquidity Provider from time to time
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shall notify the Borrower as being its lending office hereunder.
"LIBOR Advance" means an Advance bearing interest at a rate based
upon the LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period, the rate
per annum at which deposits in U.S. dollars are offered for the relevant
Interest Period by the Liquidity Provider to prime banks 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 the principal amount
of the Advance to which such Interest Period is to apply and for a period
of time comparable to such Interest Period, as quoted by the Liquidity
Provider to the Subordination Agent.
"Liquidity Event of Default" means the occurrence of the following:
all of the Equipment Notes shall have been either declared to be
immediately due and payable or shall not have been paid at their final
maturity. A Liquidity Event of Default shall not occur upon an automatic
acceleration of the Equipment Notes as a result of a Northwest Bankruptcy
Event.
"Liquidity Indemnitee" means (i) the Liquidity Provider, (ii) each
affiliate of the Liquidity Provider, (iii) the respective directors,
officers, employees, agents and servants of the Liquidity Provider and its
affiliates, and (iv) the successors and permitted assigns of the persons
described in clauses (i) through (iii), inclusive.
"Liquidity Provider" has the meaning assigned to such term in the
recital of parties to this Agreement.
"Non-Excluded Tax" has the meaning specified in Section 3.3.
"Non-Extension Advance" means an Advance made pursuant to Section
2.2(b)(ii).
"Notice of Borrowing" has the meaning specified in Section 2.2(d).
"Notice of Replacement Borrower" has the meaning specified in
Section 3.8.
"Participant" has the meaning assigned to such term in Section
7.8(b).
"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.
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"Prospectus" means the prospectus included in the Registration
Statement on Form S-3 (File No. 333-13307) filed by Northwest and NWA
Corp. under the Securities Act, as it became effective under the
Securities Act and the Registration Statement on Form S-3 (File No.
333-28649) filed by Northwest and NWA Corp. under the Securities Act, as
it became effective under the Securities Act, which latter Registration
Statement constitutes Post-Effective Amendment No. 3 to the former
Registration Statement, each such Registration Statement relating to
certain pass through certificates, as supplemented by the prospectus
supplement dated September 16, 1997 reflecting the terms of the
Certificates, as such Prospectus may be amended or supplemented.
"Related Indemnitee" means, with respect to any Liquidity
Indemnitee, its director, officer, employee, agent, affiliate or employer.
"Replenishment Amount" has the meaning assigned to such term in
Section 2.6(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 B Certificates, that would be payable on the
Class B 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 B Certificates on such day and without regard to
expected future payments of principal on the Class B Certificates.
"Securities Act" means the Securities Act of 1933, as amended.
"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 B Certificates have been paid
in full (or provision has been made for such payment in accordance with
the Intercreditor Agreement and the Trust Agreements) 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 date
on which the Liquidity Provider makes the Final Advance; and (v) the date
on which no Advance is or may (including by reason of
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reinstatement as herein provided) become available for a Borrowing
hereunder.
"Unpaid Advance" has the meaning assigned to such term in Section
2.5.
(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:
"Certificates", "Class A Certificates", "Class B Certificates", "Class B
Certificateholders", "Class B Cash Collateral Account", "Class B Trust",
"Class B Trust Agreement", "Class B Trustee", "Class C Certificates",
"Controlling Party", "Corporate Trust Office", "Distribution Date",
"Equipment Notes", "Indenture", "Investment Earnings", "Liquidity
Facility", "▇▇▇▇▇'▇", "NWA Corp.", "Northwest", "Northwest Bankruptcy
Event", "Operative Agreements", "Participation Agreements", "Performing
Equipment Note", "Person", "Pool Balance", "Rating Agency", "Regular
Distribution Date", "Replacement Liquidity Facility", "Responsible
Officer", "Scheduled Payment", "Special Payment", "Standard & Poor's",
"Stated Interest Rate", "Subordination Agent", "Taxes", "Threshold
Rating", "Triggering Event", "Trust Agreements", "Trustee",
"Underwriters", "Underwriting Agreement" and "Written Notice".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.1 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 12:00 Noon (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 2.4(b)) in an aggregate amount at any time
outstanding not to exceed the Commitment.
Section 2.2 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 in each instance, signed by a Responsible Officer of the
Borrower, in an amount not exceeding the Available Commitment at such time and
shall be used solely for the payment when due of interest on the Class B
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 Available Commitment and the
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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 in full of the amount of any
Interest Advance made pursuant to this Section 2.2(a), together with accrued
interest thereon (as provided herein), the Available Commitment shall be
reinstated by the amount of such repaid Interest Advance; provided, however,
that the Available Commitment shall not be so reinstated at any time if (i) (x)
a Triggering Event shall have occurred and be continuing and (y) there is a
Performing Note Deficiency or (ii) a Liquidity Event of Default shall have
occurred and be continuing.
(b) (i) A Downgrade Advance shall be made in a single Borrowing upon
a downgrading of the rating of the Liquidity Provider resulting in the Liquidity
Provider's ratings not meeting the Threshold Rating (as provided for in Section
3.6(c) of the Intercreditor Agreement) unless a Replacement Liquidity Facility
shall have been delivered to the Borrower in accordance with said Section
3.6(c), 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 Available
Commitment at such time, and shall be used to fund the Class B Cash Collateral
Account in accordance with said Section 3.6(c).
(ii) A Non-Extension Advance shall be made in a single Borrowing
upon the non-extension of the Commitment hereunder (as provided for in Section
3.6(d) of the Intercreditor Agreement) unless a Replacement Liquidity Facility
shall have been delivered to the Borrower in accordance with said Section
3.6(d), 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 Available
Commitment at such time, and shall be used to fund the Class B Cash Collateral
Account in accordance with said Section 3.6(d).
(c) A Final Advance shall be made by the Liquidity Provider without
the necessity for a Notice of Borrowing at the option of the Liquidity Provider
on the occurrence of an event described in Section 6.1(a) or 6.1(b) in an amount
equal to the Available Commitment at such time, and shall be used to fund the
Class B Cash Collateral Account.
(d) Each Borrowing (other than the making of the Final Advance)
shall be made on notice in writing (a "Notice of Borrowing") in substantially
the form required by Section 2.2(a) or 2.2(b), as the case may be, given not
later than 12:00 Noon (New York City time) on the Business Day prior to the day
of the proposed Borrowing by the Borrower to the Liquidity Provider. Upon
satisfaction of the conditions precedent set forth in Section 4.2 with respect
to a requested Borrowing, the Liquidity Provider shall, before 12:00 Noon (New
York City time) on the
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date of such Borrowing or on such later Business Day as may be specified by the
Borrower in such Notice of Borrowing, make available to the Borrower, in U.S.
dollars and in immediately available funds, the amount of such Borrowing to be
paid to the Borrower in accordance with its payment instructions. If a Notice of
Borrowing is delivered by the Borrower in respect of any Borrowing after 12:00
Noon (New York City time) on a Business Day, the Liquidity Provider shall,
before 12:00 Noon (New York City time) on the second 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, make available to the
Borrower, in U.S. dollars and in immediately available funds, the amount of such
Borrowing to be paid to the Borrower in accordance with its payment
instructions. 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.
(e) 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 (including the holder of any
Class B Certificate or the Class B Trustee) who makes to the Class B Trustee or
the Borrower a demand for payment with respect to any Class B Certificate.
Following the making of any Advance pursuant to Section 2.2(b) or (c) hereof to
fund the Class B Cash Collateral Account, the Liquidity Provider shall have no
interest in or rights to the Class B Cash Collateral Account, such Advance or
any other amounts from time to time on deposit in the Class B Cash Collateral
Account; provided that the foregoing shall not affect or impair the obligations
of the Subordination Agent to make the distributions contemplated by Sections
3.2 or 3.3 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 2.3 Fees. (a) The Borrower agrees to pay to the Liquidity
Provider on the Effective Date a non-refundable fee equal to $25,000 in
aggregate with respect to the Irrevocable Revolving Credit Agreement, Class A
Certificates, dated as of September 25, 1997, by and between State Street Trust
Company of Connecticut, National Association and Royal Bank, this Agreement and
the Irrevocable Revolving Credit, Class C Certificates, dated
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as of September 25, 1997, by and between State Street Trust Company of
Connecticut, National Association and Royal Bank.
(b) The Borrower shall pay, or shall cause to be paid, to the
Liquidity Provider, a fee equal to 0.30% per annum on the average Available
Commitment from the Effective Date to the earlier of the date on which a
Downgrade Advance or Non-Extension Advance is made and the date on which the
Commitment terminates. Such fee shall be payable in arrears on each Regular
Distribution Date. In addition, the Borrower shall pay, or shall cause to be
paid, to the Liquidity Provider, a fee equal to 0.30% per annum on the unpaid
principal amount of each Downgrade Advance or Non-Extension Advance (other than
an Applied Downgrade Advance or an Applied Non-Extension Advance) from and
including the date of such Advance to but excluding the date such principal
amount shall be paid in full. Such fee shall be payable in arrears on each
Regular Distribution Date and, in the event of the payment of principal of such
Downgrade Advance or Non-Extension Advance on a day other than a Regular
Distribution Date, on the date of such payment (to the extent of the foregoing
fee accrued on the amount of principal repaid). Nothing contained in this
Section 2.3(b) shall require the Borrower to pay any amount under this Section
2.3(b) other than to the extent the Borrower shall have funds available
therefor, and, in all events, subject to the terms of the Intercreditor
Agreement.
Section 2.4 Reduction or Termination of the Commitment; Extension of
the Expiry Date. (a) Automatic Reductions. Promptly following each date on which
the Required Amount is reduced as a result of a reduction in the Pool Balance of
the Class B Certificates or otherwise, the 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
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 Commitment.
(b) Termination. Upon the making of any Downgrade Advance,
Non-Extension 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.
(c) Extension of the Expiry Date. Unless the Expiry Date has
previously been extended to a date that is 15 days after the Final Legal
Distribution Date for the Class B Certificates, then, no earlier than the 180th
day and no later than the 90th day prior to the Expiry Date then in effect, the
Subordination Agent shall request that the Liquidity Provider extend the Expiry
Date to a date no later than such 15th day (unless the obligations of the
Liquidity Provider are earlier terminated in accordance herewith). The Liquidity
Provider shall advise the
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Subordination Agent, no earlier than 90 days and no later than 60 days prior to
such Stated Expiration Date, whether, in its sole discretion, it agrees to so
extend the Expiry Date and, if so, the proposed new Expiry Date. If, on or
before such 25th day, the Expiry Date shall not have been so extended and, in
such event, the Commitment shall not have been replaced in accordance with
Section 3.6(e) of the Intercreditor Agreement, or if the Liquidity Provider
fails irrevocably and unconditionally to advise the Subordination Agent on or
before the 25th day prior to the Expiry Date then in effect that such Expiry
Date shall be so extended, the Subordination Agent shall, on such 25th day (or
as soon as possible thereafter), request a Non-Extension Advance in accordance
with the terms hereof and of Section 3.6(d) of the Intercreditor Agreement.
Section 2.5 Repayments of Interest Advances or the Final Advance.
Subject to Sections 2.7 and 2.9, the Borrower hereby agrees 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 Interest Advance or the Final Advance (any such Interest
Advance or the Final 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 3.7. Subject to Sections 2.6, 2.7 and 2.9, unless otherwise
waived by the Liquidity Provider, the Borrower shall be obligated, without
notice of an Advance or demand for repayment from the Liquidity Provider (which
notice and demand are hereby waived by the Borrower), to repay the Liquidity
Provider for all Interest Advances and Final Advances on the same day as made
and all Applied Downgrade Advances and Applied Non-Extension Advances on the
same day they become Applied Downgrade Advances or Applied Non-Extension
Advances, as applicable, in accordance with Section 2.6 hereof. The Borrower and
the Liquidity Provider agree that the repayment in full of each Interest Advance
and the Final Advance on the date such Interest Advance or the Final Advance is
made is intended to be a contemporaneous exchange for new value given to the
Borrower by the Liquidity Provider.
Section 2.6 Repayments of Downgrade Advances and Non-Extension
Advances. (a) Amounts advanced hereunder in respect of a Downgrade Advance shall
be deposited in the Class B Cash Collateral Account, and invested and withdrawn
from the Class B Cash Collateral Account, as set forth in Sections 3.6(c) and
(f) of the Intercreditor Agreement. Amounts advanced hereunder in respect of a
Non-Extension Advance shall be deposited in the Class B Cash Collateral Account,
and invested and withdrawn from the Class B Cash Collateral Account, as set
forth in Sections 3.6(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
Downgrade Advance or a Non-Extension Advance, interest on the principal amount
of any such Advance as provided in Section 3.7; provided, however, that (i) any
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distribution to the Liquidity Provider of Investment Earnings pursuant to
Section 3.6(f) of the Intercreditor Agreement shall constitute a payment of
interest on such Advance in the amount of such Investment Earnings (not to
exceed the amount specified in Section 3.7) and (ii) amounts in respect of a
Downgrade Advance or a Non-Extension Advance withdrawn from the Class B Cash
Collateral Account for the purpose of paying interest on the Class B
Certificates in accordance with Section 3.6(f) of the Intercreditor Agreement
(the amount of any such withdrawal being (i) in the case of a withdrawn
Downgrade Advance, an "Applied Downgrade Advance" and (ii) in the case of a
withdrawn Non-Extension Advance, an "Applied Non-Extension Advance") shall be
treated as an Interest Advance under this Agreement for purposes of determining
the Applicable Liquidity Rate for interest payable thereon. Immediately upon the
withdrawal of any amounts from the Class B Cash Collateral Account on account of
a reduction in the Required Amount, the Borrower shall repay the Downgrade
Advance or Non-Extension Advance (as the case may be) in a principal amount
equal to the amount of such reduction, plus interest on the principal amount
prepaid as provided in Section 3.7.
(b) At any time when an Applied Downgrade Advance (or any portion
thereof) or an Applied Non-Extension Advance (or any portion thereof) is
outstanding, upon the deposit in the Class B Cash Collateral Account of any
amount pursuant to clause "third" of Section 2.4(b), clause "third" of Section
3.2 or clause "fourth" of Section 3.3 of the Intercreditor Agreement (any such
amount being a "Replenishment Amount") for the purpose of replenishing the
balance thereof up to the Required Amount at such time, (i) the aggregate
outstanding principal amount of all Applied Downgrade Advances or Applied
Non-Extension Advances (as the case may be) shall be automatically reduced by
the amount of such Replenishment Amount and (ii) the principal amount of the
outstanding Downgrade Advance or Non-Extension Advance (as the case may be)
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, and prior to the effectiveness of any Replacement
Liquidity Facility, the Borrower agrees that all amounts owing to the Liquidity
Provider shall be repaid in full, whether from advances made by the Replacement
Liquidity Provider, from amounts remaining on deposit in the Class B Cash
Collateral Account after giving effect to any application of funds therefrom to
any payment of interest on the Class B Certificates on the date of such
replacement, or otherwise.
Section 2.7 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
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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 in the order of priority required by
the applicable provisions of Articles II and III of the Intercreditor Agreement.
Section 2.8 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 2.9 Payments from Available Funds Only. All payments to be
made by the Borrower under this Agreement shall be made only from amounts
received by it that constitute Scheduled Payments or Special Payments 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 B Cash Collateral Account shall be available to
make payments only to the extent and for the purposes expressly contemplated in
Section 3.6(f) of the Intercreditor Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.1 Increased Costs. If the Liquidity Provider shall
determine that (a) any change after the date hereof in any law, regulation, rule
or directive or in the interpretation thereof by any court or administrative or
governmental authority charged with the administration thereof or in the
compliance by the Liquidity Provider (or its head office) with any applicable
direction, request or requirement (whether or not having the force of law) of
any central bank or competent governmental or other authority shall either (i)
impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets held by, or deposits in or for the account of, or
loans made by, the Liquidity Provider, or (ii) impose on the Liquidity Provider
any other condition regarding
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this Agreement or any Advance, or (iii) subject the Liquidity Provider to any
Taxes with respect to amounts payable or paid or change the basis of taxation of
any amounts payable to the Liquidity Provider (other than Taxes imposed on the
overall net or gross income of the Liquidity Provider) and (b) the result of any
event referred to in the preceding clauses (i), (ii) or (iii) shall be to
increase the cost to the Liquidity Provider of issuing or maintaining its
commitment or funding or maintaining Advances (which increase in cost shall be
determined by the Liquidity Provider's reasonable allocations of the aggregate
of such cost increases resulting from such event), then, upon demand by the
Liquidity Provider (such demand to be made not later than 180 days after a
Responsible Officer of the Liquidity Provider obtains actual knowledge of any
event referred to in clause (i), (ii) or (iii) above), the Borrower shall pay,
or cause to be paid, to the Liquidity Provider, from time to time as specified
by the Liquidity Provider, additional amounts which shall be sufficient to
compensate the Liquidity Provider for such increased cost; provided that if such
demand for payment is made after such 180-day period, the Borrower shall be
obligated to pay such additional amounts only with respect to such increased
cost actually incurred or effected on or after the 180th day prior to the date
of such demand. A certificate as to such increased cost incurred by the
Liquidity Provider as a result of any event mentioned in clauses (i), (ii) or
(iii) above, prepared in reasonable detail and submitted by the Liquidity
Provider to the Borrower, shall be conclusive evidence of the amount owed under
this Section, absent manifest error.
The Liquidity Provider agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if making such change would avoid the need
for, or reduce the amount of, any amount payable under this Section 3.1 that may
thereafter accrue and would not, in the reasonable judgment of the Liquidity
Provider, be otherwise disadvantageous to the Liquidity Provider.
Section 3.2 Capital Adequacy. If the Liquidity Provider shall
determine that the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change therein, 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 head office) with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, in each case after the date
hereof, has the effect of reducing the rate of return on the Liquidity
Provider's capital as a consequence of issuing or maintaining its commitment
hereunder or its funding or maintaining Advances to a level below that which the
Liquidity Provider could have achieved but for such adoption, change or
compliance (taking into consideration the Liquidity Provider's policies with
respect to capital adequacy) by an amount deemed by the Liquidity Provider to be
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material, then, upon demand by the Liquidity Provider, the Borrower shall pay to
the Liquidity Provider, from time to time as specified by the Liquidity
Provider, additional amounts which shall be sufficient to compensate the
Liquidity Provider for such reduction in respect of issuing or maintaining its
commitment hereunder or its funding or maintaining Advances. A certificate as to
any such additional amount describing the event which has the effect of reducing
the rate of return on the Liquidity Provider's capital, prepared in reasonable
detail and submitted by the Liquidity Provider to the Borrower, shall be
conclusive evidence of the amount owed under this Section, absent manifest
error.
The Liquidity Provider agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if making such change would avoid the need
for, or reduce the amount of, any amount payable under this Section 3.2 that may
thereafter accrue and would not, in the reasonable judgment of the Liquidity
Provider, be otherwise disadvantageous to the Liquidity Provider.
Section 3.3 Payments Free of Deductions. 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 any Taxes imposed on the overall net
income of the Liquidity Provider and excluding United States federal income tax
withholding to the extent such withholding is, or would be, actually imposed
upon payments to the Liquidity Provider as of the date of this Agreement (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 and taxes imposed on the receipt of such
increase) interest or any other such amounts payable under this Agreement at the
rates or in the amounts specified in this Agreement. Whenever any Non-Excluded
Tax is payable by the Borrower, promptly thereafter the Borrower shall send the
Liquidity Provider certified copies of tax receipts evidencing such payment by
the Borrower. The Liquidity Provider agrees to provide to the Borrower on or
prior to the Effective Date, and from time to time thereafter 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), to the extent that the Liquidity Provider is legally
entitled to do so, two original Internal Revenue Service Forms 1001 or 4224, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that the Liquidity Provider is completely
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exempt from United States withholding tax on payments pursuant to 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 Lending Office if making such change would avoid the need
for, or reduce the amount of, any amount payable under this Section 3.3 that may
thereafter accrue and would not, in the reasonable judgment of the Liquidity
Provider, be otherwise disadvantageous to the Liquidity Provider.
Section 3.4 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 The Chase Manhattan Bank, New
York, New York, ABA #▇▇▇▇▇▇▇▇▇, for the account of Royal Bank of Canada, No.
▇▇▇-▇-▇▇▇▇▇▇ for further credit to account #▇▇▇-▇▇▇-▇ (referencing Northwest
Liquidity Facility).
Section 3.5 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 and of fees
payable to the Liquidity Provider 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 3.6 Payment on Non-Business Days. Whenever any payment to be
made hereunder (other than a payment on LIBOR Advances) becomes due and payable
on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day and interest thereon shall be payable at the then
applicable rate during such extension. If any payments on a LIBOR Advance
becomes due and payable on a day other than a Business Day, the maturity thereof
shall be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day.
Section 3.7 Interest. (a) The Borrower shall pay, or shall cause to
be paid, 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 Downgrade
Advance or an Applied Non-Extension Advance, from and including the date on
which the amount thereof was withdrawn from the Class B Cash Collateral Account
to pay interest on the Class B Certificates) to but excluding the date such
principal amount shall be paid in full and (ii) any other amount due hereunder
(whether fees,
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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 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 3.7
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 3.7 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 3.7 had at all times been in effect. Nothing contained in this
Section 3.7 shall require the Borrower to pay any amount under this Section 3.7
other than to the extent the Borrower shall have funds available therefor.
(b) Each Advance (other than a Downgrade Advance that is not an
Applied Downgrade Advance and a Non-Extension Advance that is not an Applied
Non-Extension Advance, and for which, in each case, subsection (e) below shall
apply) 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 Final
Advance shall, until repaid in full, be a Base Rate Advance and the Borrower may
not convert the Final Advance into a LIBOR Advance.
(c) Each LIBOR Advance shall bear interest during each Interest
Period at a per annum rate 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 per annum rate
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 Downgrade Advance (other than an Applied Downgrade Advance)
and each Non-Extension Advance (other than an
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Applied Non-Extension Advance) shall bear interest in an amount equal to the
higher of (i) a per annum rate equal to LIBOR plus 0.30% and (ii) the Investment
Earnings on amounts on deposit in the Class B Cash Collateral Account, payable
in arrears on each Regular Distribution Date and, in the event of the payment of
principal of such 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).
(f) 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) shall bear interest at the Base Rate.
(g) Each change in the Base Rate shall become effective immediately.
Section 3.8 Replacement of Borrower. From time to time, upon the
effective date and time specified in a written and completed Notice of
Replacement Borrower in substantially the form of Annex IV attached hereto (a
"Notice of Replacement Borrower") delivered to the Liquidity Provider by the
then Borrower, the successor Borrower designated therein shall be substituted as
the Borrower for all purposes hereunder.
Section 3.9 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 as a result
of:
(a) Any payment of a LIBOR Advance on a date other than the last day
of the Interest Period for such Advance; or
(b) Any failure by the Borrower to borrow or convert, as the case
may be, a LIBOR Advance on the date for borrowing or conversion, as the
case may be, specified in the relevant notice under Section 2.2 or 3.7.
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 Lending
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 Lending 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
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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 4.1 Conditions Precedent to Effectiveness of Section 2.1.
Section 2.1 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, each dated such date (except for those
documents delivered pursuant to paragraphs (v) and (vii) of this Section
4.1(a)), and 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) Counterparts (or certified copies thereof) of each of
the Operative Agreements (other than this Agreement and the
Intercreditor Agreement) which, when taken together, bear the
signatures of all of the respective parties thereto and which are in
full force and effect in accordance with their respective terms;
(iv) A copy of the Prospectus and specimen copies of the Class
B Certificates;
(v) Evidence that, on the Effective Date, the Class A
Certificates, the Class B Certificates and the Class C Certificates
will receive long-term credit ratings from ▇▇▇▇▇'▇ of not lower than
▇▇, ▇▇▇▇ and Baa3, respectively, and from Standard & Poor's of not
lower than A, BBB and BBB-, respectively;
(vi) An executed or certified copy of each document,
instrument, certificate and opinion delivered pursuant to the Class
B Trust Agreement, the Intercreditor Agreement, the Participation
Agreements and the other Operative Agreements (together with, in the
case of each such opinion, other than the opinion of counsel for the
Underwriters and each opinion which is addressed to the Liquidity
Provider, a letter from
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the counsel rendering such opinion to the effect that the Liquidity
Provider is entitled to rely on such opinion as if it were addressed
to the Liquidity Provider);
(vii) 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 Trustees and the Liquidity Provider
created by the Operative Agreements;
(viii) Copies of the appraisals attached as exhibits to the
Prospectus;
(ix) A letter from NWA Corp. regarding the delivery to the
Liquidity Provider of periodic financial reports;
(x) A guaranty by State Street Bank and Trust Company, a
Massachusetts trust company, of the obligations of State Street
under the Operative Documents to which it is a party; and
(xi) Such other documents, instruments, opinions and approvals
(and, if requested by the Liquidity Provider, certified duplicates
or executed copies thereof) as the Liquidity Provider shall have
reasonably requested.
(b) The following statements shall be true and shall be deemed to
have been represented by each party (other than clause (ii) below, which
shall be deemed to have been represented only by Northwest) to the
Participation Agreements as being true on and as of the Effective Date:
(i) The representations and warranties of such Person
contained in each Participation Agreement are true and correct on
and as of the Effective Date as though made on and as of the
Effective Date; and
(ii) 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
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for the account of the Liquidity Provider on or prior to the Effective
Date.
(d) All conditions precedent to the issuance of the Certificates
under the Trust Agreements shall have been satisfied, all conditions
precedent to the effectiveness of the other Liquidity Facilities shall
have been satisfied, and all conditions precedent to the purchase of the
Certificates by the Underwriters under the Underwriting Agreement shall
have been satisfied (unless any of such conditions precedent under the
Underwriting Agreement 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 2.1 have been satisfied or waived (other than this Section
4.1(e)).
Section 4.2 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, except in the case of the Final Advance, 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
Advance requested.
ARTICLE V
COVENANTS
Section 5.1 Affirmative Covenants of the Borrower. So long as any
Advance shall remain unpaid or the Liquidity Provider shall have any 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, including copies
of all documents with respect to the transactions contemplated by the
Operative Agreements as from time to time may be reasonably requested by
the
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Liquidity Provider; and permit the Liquidity Provider, upon reasonable
notice, to inspect the Borrower's books and records with respect to such
transactions to make extracts and copies thereof and to meet with
officers, agents, professional advisers and employees of the Borrower to
discuss such transactions.
Section 5.2 Negative Covenants of the Borrower. So long as any
Advance shall remain unpaid or the Liquidity Provider shall have any Commitment
hereunder or the Borrower shall have any obligation to pay any amount to the
Liquidity Provider hereunder, the Borrower will not, without the written consent
of the Liquidity Provider:
(a) Amendments. Modify, amend or supplement, or give any consent to
any modification, amendment or supplement or make any waiver with respect
to, any provision of the Trust Agreements or the Intercreditor Agreement,
except for any supplemental agreement to the Trust Agreements provided for
in Section 9.1 thereof.
(b) Borrower. Appoint or permit or suffer to be appointed any
successor Borrower without the prior written approval of the Liquidity
Provider (which approval shall not be unreasonably withheld).
ARTICLE VI
FINAL ADVANCE
Section 6.1 Final Advance. If (a)(i) a Triggering Event shall have
occurred and be continuing and (ii) there is a Performing Note Deficiency or (b)
a Liquidity Event of Default shall have occurred and be continuing, the
Liquidity Provider may, in its sole discretion, make a Final Advance whereupon
(i) the Liquidity Provider shall have no further obligation to make Advances
hereunder, (ii) all other outstanding Advances shall be automatically converted
into Final Advances for purposes of determining the Applicable Liquidity Rate
for interest payable thereon, and (iii) subject to Sections 2.7 and 2.9, all
Advances, any accrued interest thereon and all other amounts outstanding
hereunder shall become immediately due and payable to the Liquidity Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.1 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, the Borrower, and
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then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
Section 7.2 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
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ and Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Liquidity
Provider: Royal Bank of Canada
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Loans Administration
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, (ii) if given by mail, when deposited
in the mails addressed as specified above, and (iii) 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 7.3 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 7.4 Further Assurances. The Borrower agrees to do, upon
request, 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
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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 7.5 Indemnification; Survival of Certain Provisions. The
Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Section 7 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 Sections 3.1, 3.2 or 7.7 hereof (regardless of whether indemnified
against pursuant to said Sections)), whether arising before, on or after the
date hereof, 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, this Agreement, the Fee Letter, the Intercreditor Agreement or
the Participation Agreements; 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 (i) to the
extent such Expense is attributable to the gross negligence or willful
misconduct of such Liquidity Indemnitee or any Related Indemnitee, (ii) that is
ordinary and usual operating overhead expense or (iii) to the extent such
Expense is attributable to the failure by such Liquidity Indemnitee or its
Related Indemnitee to perform or observe in any material respect any agreement,
covenant or condition on its part to be performed or observed in any Operative
Agreement. The indemnities contained in such Section 7 of the Participation
Agreements, and the provisions of Sections 3.1, 3.2, 3.3, 7.5 and 7.7, shall
survive the expiration or termination of this Agreement.
Section 7.6 Liability of the Liquidity Provider. (a) Neither the
Liquidity Provider nor any of its officers or directors 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 gross 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
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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; provided, however that the Borrower shall not have a
claim against the Liquidity Provider, and the Liquidity Provider shall not be
liable to the Borrower, to the extent of an order or judgment for punitive or
consequential damages regarding damages suffered by the Borrower which were the
result of subparagraphs (A) and (B) above in the first proviso of this Section
7.6.
(b) The Liquidity Provider shall not 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 7.7 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 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, including, without limitation, the reasonable
fees and expenses of outside counsel for the Liquidity Provider and (B) on
demand, all reasonable costs and expenses of the Liquidity Provider (including
reasonable counsel fees and expenses) 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
Document or otherwise affecting the application of funds in the Cash Collateral
Accounts. 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.
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Section 7.8 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 7.8) nor the
Borrower shall have the right to assign its rights hereunder or any interest
herein without the prior written consent of the other party, subject to the
requirement of Section 7.8(b). The Liquidity Provider may grant participations
herein or in any of its rights or security hereunder and under the other
Operative Agreements to such Persons as the Liquidity Provider may in its sole
discretion select, subject to the requirement of Section 7.8(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 and the like as they pertain to the Liquidity Provider shall be
deemed also to include those of each of its participants (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 to any bank or other entity (each, a "Participant"),
then, concurrently with the effectiveness of such participation, the Participant
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 by the Borrower or the
Liquidity Provider with respect to any payments to be made to such Participant
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 4224 or Form
1001, as appropriate, or other applicable form, certificate or document
prescribed by the Internal Revenue Service certifying, in each case, such
Participant'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 4224 or Form 1001, as
appropriate, (A) on or before the date that any such form expires or becomes
obsolete or (B) after
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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 1001 or
Form 4224 that such Participant 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
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 without any obligation to gross-up or
indemnify pursuant to Section 3.3.
(c) Notwithstanding the other provisions of this Section 7.8, 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 7.9 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 non-exclusive 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;
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(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) if such party does not maintain an office for the transaction
of its business in New York, 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 and mail),
postage prepaid, to each party hereto at its address set forth in Section
7.2, 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 CANNOT BE MODIFIED ORALLY.
(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 judgement 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 and the other Operative
Agreements constitute the entire agreement of the parties hereto with respect to
the subject matter hereof and thereof and supersede all prior understandings and
agreements of such parties.
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Section 7.14 Headings; Section References. 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. Unless the context
otherwise requires or otherwise indicated herein, all Section references in this
Agreement are references to Sections hereof.
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.
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IN WITNESS WHEREOF, the parties hereto 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
Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
ROYAL BANK OF CANADA,
as Liquidity Provider
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager
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Annex I to Irrevocable
Revolving Credit Agreement
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "Borrower"), hereby certifies to Royal Bank of Canada, (the
"Liquidity Provider"), with reference to the Irrevocable Revolving Credit
Agreement dated as of September 25, 1997, 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 for the
payment of interest on the Class B Certificates which was payable on
_______________ in accordance with the terms and provisions of the Class B
Trust Agreement and the Class B Certificates pursuant to clause fourth of
Section 3.2 of the Intercreditor Agreement or clause sixth of Section 3.3
of the Intercreditor Agreement, which Advance is requested to be made on
_________________.
(3) The amount of the Interest Advance requested hereby (i) is
$_________, to be applied in respect of the payment of interest which was
due and payable on the Class B Certificates on such Distribution Date,
(ii) does not include any amount with respect to the payment of principal
of, or premium on, the Class A Certificates, the Class B Certificates or
the Class C Certificates, or interest on the Class A Certificates or the
Class C Certificates, (iii) was computed in accordance with the provisions
of the Class B Certificates, the Class B Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I), (iv) does not exceed the Available Commitment on the date
hereof, and (v) 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 3.2 or 3.3 of the Intercreditor Agreement, as the
case may be, (b) no portion of such amount shall be applied by the
Borrower for any other purpose and (c) no portion of such amount until so
applied shall be commingled with other funds held by the Borrower.
(5) The Borrower hereby requests that the Advance requested hereby
be a Base Rate Advance and that such Base Rate Advance be converted into a
LIBOR Rate Advance on the third Business Day following your receipt of
this notice.
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 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 Certificate 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:
-2-
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Interest Advance Notice of Borrowing]
Annex II to Irrevocable
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
subordination agent (the "Borrower"), hereby certifies to Royal Bank of Canada,
(the "Liquidity Provider"), with reference to the Irrevocable Revolving Credit
Agreement dated as of September 25, 1997, 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 B 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 _____________.
(3) The amount of the Downgrade Advance requested hereby (i) is
$________, which equals the Available Commitment on the date hereof and is
to be applied in respect of the funding of the Class B 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 B Certificates, or principal of, or
interest or premium on, the Class A Certificates or the Class C
Certificates, (iii) was computed in accordance with the provisions of the
Class B Certificates, the Class B 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 B
Cash Collateral Account and apply the same in accordance with the terms of
Section 3.6(c) of the Intercreditor Agreement, (b) no portion of such
amount shall be applied by the Borrower for any other purpose and (c) no
portion of such amount until so applied shall be commingled with other
funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Downgrade Advance as
requested by this Notice of Borrowing shall automatically and irrevocably
terminate the obligation of the Liquidity Provider to make further Advances
under the Liquidity Agreement; and (B) following the making by the Liquidity
Provider of the Downgrade Advance requested by this Notice of Borrowing, the
Borrower shall not be entitled to request any further Advances under the
Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the ___ day of ___________, ____.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL
ASSOCIATION, not in its
individual capacity but solely
as Subordination Agent, as
Borrower
By:
---------------------------------
Name:
Title:
-2-
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Downgrade Advance Notice of Borrowing]
Annex III to Irrevocable
Revolving Credit Agreement
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
subordination agent (the "Borrower"), hereby certifies to Royal Bank of Canada,
(the "Liquidity Provider"), with reference to the Irrevocable Revolving Credit
Agreement dated as of September 25, 1997, 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 B Cash Collateral Account in accordance with
Section 3.6(d) of the Intercreditor Agreement by reason of the
non-extension of the Commitment as provided in said Section 3.6(d), which
Advance is requested to be made on _________.
(3) The amount of the Non-Extension Advance requested hereby (i) is
$________, which equals the Available Commitment on the date hereof and is
to be applied in respect of the funding of the Class B 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 B Certificates, or principal of, or
interest or premium on, the Class A Certificates or the Class C
Certificates, (iii) was computed in accordance with the provisions of the
Class B Certificates, the Class B 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 B
Cash Collateral Account and apply the same in accordance with the terms of
Section 3.6(d) of the Intercreditor Agreement, (b) no portion of such
amount shall be applied by the Borrower for any other purpose and (c) no
portion of such amount until so applied shall be commingled with other
funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Non-Extension Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the obligation
of the Liquidity Provider to make further Advances under the Liquidity
Agreement; and (B) following the making by the Liquidity Provider of the
Non-Extension Advance requested by this Notice of Borrowing, the Borrower shall
not be entitled to request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the ___ day of _______________, ____.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL
ASSOCIATION, not in its
individual capacity but solely
as Subordination Agent, as
Borrower
By:
---------------------------------
Name:
Title:
-2-
SCHEDULE I TO Non-Extension ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Non-Extension Advance Notice of Borrowing]
Annex IV to Irrevocable
Revolving Credit Agreement
NOTICE OF REPLACEMENT BORROWER
[Date]
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
[Name of Transferee]
[Address of Transferee]
all rights 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.
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 as Borrower thereunder. The undersigned
shall pay any costs and expenses of such transfer, including, but not limited
to, transfer taxes or governmental charges.
We ask that this transfer be effective as of ____________, ____.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL
ASSOCIATION, not in its
individual capacity but solely
as Subordination Agent, as
Borrower
By:
---------------------------------
Name:
Title: