Exhibit 4(c)(3)
EXECUTION COPY
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REVOLVING CREDIT AGREEMENT
(2001-1B)
Dated as of June 1, 2001
between
STATE STREET BANK AND TRUST COMPANY
as Subordination Agent,
as Borrower
and
LANDESBANK HESSEN-THURINGEN GIROZENTRALE as Liquidity Provider
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Relating to
Northwest Airlines Pass Through Trust 2001-1B
7.691% Northwest Airlines Pass Through Certificates,
Series 2001-1B
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. Reduction or Termination of the Maximum Commitment.....9
Section 2.05. Repayments of Interest Advances or the Final Advance..10
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...12
Section 2.11. Right to Further Extend Expiry Date...................12
ARTICLE III OBLIGATIONS OF THE BORROWER......................................12
Section 3.01. Increased Costs.......................................12
Section 3.02. Capital Adequacy......................................13
Section 3.03. Payments Free of Deductions...........................14
Section 3.04. Payments .............................................15
Section 3.05. Computations..........................................15
Section 3.06. Payment on Non-Business Days..........................15
Section 3.07. Interest .............................................15
Section 3.08. Replacement of Borrower...............................17
Section 3.09. Funding Loss Indemnification..........................17
Section 3.10. Illegality............................................17
ARTICLE IV CONDITIONS PRECEDENT..............................................17
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Section 4.01. Conditions Precedent to Effectiveness of Section 2.01.17
Section 4.02. Conditions Precedent to Borrowing.....................19
ARTICLE V COVENANTS .........................................................19
Section 5.01. Affirmative Covenants of the Borrower.................19
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....................................................20
Section 7.01. Amendments, Etc.......................................20
Section 7.02. Notices, Etc..........................................21
Section 7.03. No Waiver; Remedies...................................21
Section 7.04. Further Assurances....................................22
Section 7.05. Indemnification; Survival of Certain Provisions.......22
Section 7.06. Liability of the Liquidity Provider...................22
Section 7.07. Costs, Expenses and Taxes.............................23
Section 7.08. Binding Effect; Participations........................23
Section 7.09. Severability..........................................24
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.............................25
Section 7.13. Entirety .............................................26
Section 7.14. Headings .............................................26
Section 7.15. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES......26
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ANNEXES
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
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REVOLVING CREDIT AGREEMENT (2001-1B)
This REVOLVING CREDIT AGREEMENT (2001-1B) dated as of June 1,
2001, between STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust
company, not in its individual capacity but solely as Subordination Agent under
the Intercreditor Agreement (each as defined below), (the "BORROWER"), and
LANDESBANK HESSEN - THURINGEN GIROZENTRALE, a public law banking institution
organized under the laws of Germany (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 1.01), 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 1.01. 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:
"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(g).
"APPLICABLE MARGIN" means (a) with respect to any Unpaid
Advance or Applied Provider Advance, 1.50% per annum PLUS, if
applicable, an additional margin specified in the Fee Letter
applicable to this Agreement not to exceed 0.50% per annum, or (b)
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 is at all times 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 the Liquidity Provider, plus (b) one quarter of
one percent (0.25%) 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 a day on which commercial banks are required or authorized to
close in New York, New York, Minneapolis, Minnesota, Chicago,
Illinois, Boston, Massachusetts and Salt Lake City, Utah, or, so
long as any Class B Certificate is outstanding, the city and state
in which the Class B Trustee, the Borrower or any Loan 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.
"CONSENT NOTICE" has the meaning assigned to such term in
Section 2.10.
"CONSENT PERIOD" has the meaning assigned to such term in
Section 2.10.
"DELIVERY PERIOD" means the period from the date hereof
through March 31, 2003.
"DEPOSIT AGREEMENT" means the Deposit Agreement, dated June 1,
2001, between ▇▇▇▇▇ Fargo Bank Northwest, National Association, as
Escrow Agent and ABN AMRO Bank N.V., acting through a United States
branch, as Depositary, pertaining to the Class B Certificates, as
the same may be amended, modified or supplemented from time to time
in accordance with the terms thereof.
"DEPOSITARY" has the meaning assigned to such term in the
Deposit Agreement.
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"DEPOSITS" has the meaning assigned to such terms in the
Deposit Agreement.
"DOWNGRADE ADVANCE" means an Advance made pursuant to Section
2.02(c).
"DOWNGRADE EVENT" means a downgrading of the Liquidity
Provider's short-term unsecured debt rating issued by either Rating
Agency below the applicable Threshold Rating unless each Rating
Agency shall have confirmed in writing on or prior to the date of
such downgrading that such downgrading will not result in the
downgrading, withdrawal or suspension of the ratings of the Class B
Certificates, in which case, such downgrading of the Liquidity
Provider's short-term unsecured debt rating shall not constitute a
Downgrade Event and shall be referred to herein as a "HELABA
Downgrade".
"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 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 Lending Office, after the date on which
such successor Liquidity Provider obtains its interest or on which
the Lending 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) 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 May 30, 2002, initially, or any date to
which the Expiry Date is extended pursuant to Section 2.10.
"EXTENSION NOTICE" has the meaning assigned to such term in
Section 2.10.
"FEE LETTERS" means, collectively, (i) the Fee Letter dated as
of the date hereof between the Liquidity Provider and the
Subordination Agent with respect to the initial Class A-1 Liquidity
Facility, Class A-2 Liquidity Facility, Class B Liquidity Facility
and Class C Liquidity Facility and (ii) any fee letter entered into
between the Subordination Agent and any Replacement Liquidity
Provider in respect of such Liquidity Facilities.
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"FINAL ADVANCE" means an Advance made pursuant to Section
2.02(d).
"HELABA DOWNGRADE" has the meaning assigned to such term in
the definition of "Downgrade Event".
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement
dated the date hereof, 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
2.02(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 (a) the Liquidity Provider's receipt of the
Notice of Borrowing for such LIBOR Advance or (b) the
withdrawal of funds from the Class B Cash Collateral
Account for the purpose of paying interest on the Class
B 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 (I) if an Unapplied Provider Advance which
is a LIBOR Advance becomes an Applied Provider Advance, the Interest
Period then applicable to such Unapplied Provider Advance shall be
applicable to such Applied Provider Advance and (II) 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 last day of the Interest Period then
applicable to such outstanding Advances (in the case of clause (y)
above).
"LENDING OFFICE" means the office of the Liquidity Provider
presently located in Frankfurt, Germany, or such other lending
office as the Liquidity Provider from time to time shall notify the
Borrower as 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, (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
4
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 the
following: (i) 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; PROVIDED that, if an acceleration of
the Equipment Notes occurs during the Delivery Period, a Liquidity
Event of Default shall occur only if the aggregate principal amount
of the Equipment Notes exceeds $300 million, or (ii) a Northwest
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 (i) in the case of any day
occurring before the first Regular Distribution Date, $13,440,022.50
and (ii) in the case of any day occurring on or after the first
Regular Distribution Date, the Required Amount on such day.
"NON-EXCLUDED TAX" has the meaning specified in Section
3.03(a).
"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.
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"PROSPECTUS SUPPLEMENT" means the Prospectus Supplement dated
May 22, 2001, relating to the Class A-1 Certificates, Class A-2
Certificates, the Class B Certificates and the Class C Certificates, as
such Prospectus Supplement may be amended or supplemented.
"PROVIDER ADVANCE" means a Downgrade Advance or a
Non-Extension Advance.
"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 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.
"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
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.
6
"WITHDRAWAL NOTICE" has the meaning assigned to such term 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", "AFFILIATE", "CERTIFICATES", "CLASS B CASH
COLLATERAL ACCOUNT", "CLASS B CERTIFICATES", "CLASS B
CERTIFICATEHOLDERS", "CLASS B TRUST", "CLASS B TRUST AGREEMENT",
"CLASS B TRUSTEE", "CLASS A-1 CERTIFICATES", "CLASS A-2
CERTIFICATES", "CLASS C CERTIFICATES", "CLASS D CERTIFICATES",
"CLOSING DATE", "CONTROLLING PARTY", "CORPORATE TRUST OFFICE",
"DELIVERY PERIOD EXPIRY DATE", "DISTRIBUTION DATE", "DOWNGRADED
FACILITY", "EQUIPMENT NOTES", "FINAL LEGAL DISTRIBUTION DATE",
"FINANCING AGREEMENT", "INDENTURE", "INTEREST PAYMENT DATE",
"INVESTMENT EARNINGS", "LIQUIDITY FACILITY", "LIQUIDITY
OBLIGATIONS", "LOAN TRUSTEE", "▇▇▇▇▇'▇", "NON-EXTENDED FACILITY",
"NORTHWEST", "NORTHWEST BANKRUPTCY EVENT", "NOTE PURCHASE
AGREEMENT", "OPERATIVE AGREEMENTS", "PERFORMING EQUIPMENT NOTE",
"PERSON", "POOL BALANCE", "RATING AGENCY", "RATINGS CONFIRMATION",
"REGULAR DISTRIBUTION DATE", "REPLACEMENT LIQUIDITY FACILITY",
"RESPONSIBLE OFFICER", "SCHEDULED PAYMENT", "SPECIAL PAYMENT",
"STANDARD & POOR'S", "STATED INTEREST RATE", "SUBORDINATION AGENT",
"TAXES", "THRESHOLD RATING", "TRUST AGREEMENTS", "TRUSTEE",
"UNDERWRITERS", "UNDERWRITING AGREEMENT" 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 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 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 in full 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
7
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 B 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 the occurrence of a Downgrade Event (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), 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 the time of such borrowing, and
shall be used to fund the Class B 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 B 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 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
8
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 hereof.
(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 B Cash
Collateral Account, the Liquidity Provider shall have no interest in or rights
to the Class B Cash Collateral Account, the funds constituting 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 Section
3.6(e) or (f) of the Intercreditor Agreement and provided further, that the
foregoing shall not affect or impair the rights of the Liquidity Provider to
provide written instructions with respect to the investment and reinvestment of
amounts in the Cash Collateral Accounts to the extent provided in Section 2.2(b)
of the Intercreditor Agreement. By paying to the Borrower proceeds of Advances
requested by the Borrower in accordance with the provisions of this Agreement,
the Liquidity Provider makes no representation as to, and assumes no
responsibility for, the correctness or sufficiency for any purpose of the amount
of the Advances so made and requested.
Section 2.03. FEES. The Borrower agrees to pay to the
Liquidity Provider the fees set forth in the Fee Letter applicable to this
Agreement.
Section 2.04. REDUCTION 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 B 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.
9
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 B Cash Collateral Account, invested and withdrawn from the Class B 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; PROVIDED, HOWEVER, that
amounts in respect of a Provider 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 (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 B 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 B Cash Collateral
Account of any amount pursuant to
10
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 B 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 7(c) 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 B Cash Collateral Account shall be available to
the
11
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 B
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 (or, if earlier,
the date of such Liquidity Provider's receipt of such request, if any, from the
Borrower) 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 fails
irrevocably and unconditionally to advise the Borrower on or before the date on
which such Consent Period ends that the applicable Expiry Date shall be so
extended, (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.
Section 2.11. RIGHT TO FURTHER EXTEND EXPIRY DATE. Subject to
the proviso in the immediately succeeding sentence, the Liquidity Provider shall
have the right at any time and without the consent of the Borrower to extend the
then effective Expiry Date to the date that is 15 days after the Final Legal
Distribution Date for the Class B Certificates by giving not less than five nor
more than ten days' prior written notice of such extension to the Borrower, the
Class B Trustee and Northwest (which notice shall specify the effective date of
such extension (the "Extension Effective Date")). On the Extension Effective
Date, the then effective Expiry Date shall be so extended without any further
act; provided, however, that if prior to the Extension Effective Date a
Downgrade Event shall have occurred, the then effective Expiry Date shall not be
so extended.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. 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
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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 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 Excluded Taxes) 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 ), 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 more 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 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
3.01 that may thereafter accrue and would not, in the reasonable judgment of the
Liquidity Provider, be otherwise disadvantageous to the Liquidity Provider.
Section 3.02. 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 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
13
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
3.02 that may thereafter accrue and would not, in the reasonable judgment of the
Liquidity Provider, be otherwise disadvantageous to the Liquidity Provider.
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 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. 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 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. On or prior to the Closing Date, the Liquidity Provider
agrees to provide to the Borrower (i) two copies of a properly completed United
States Internal Revenue Service Form W-8BEN or Form W-8ECI, as appropriate, or
other applicable form, certificate or document prescribed by the Internal
Revenue Service certifying, in each case, the Liquidity Provider's entitlement
to a complete exemption from United States federal withholding tax in respect to
any and all payments to be made hereunder, and (ii) agree to provide the
Borrower a new Form W-8BEN or Form W-8ECI, 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-8ECI or Form W-8BEN that
the Liquidity Provider is exempt from or entitled to a reduced rate of United
States federal withholding tax on payments under 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 payment required 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
14
amount which (after deduction of all such Taxes) will be sufficient to yield to
the Borrower the full amount which would have been received by it had no such
withholding or deduction been made. Within 30 days after the date of each
payment hereunder, the Liquidity Provider shall furnish to the Borrower the
original or a certified copy of (or other documentary evidence of) the payment
of the Taxes applicable to such payment.
(c) If any exemption from, or reduction in the rate of, any
Taxes is reasonably available to the Borrower to establish that payments under
this Agreement are exempt from (or entitled to a reduced rate of) tax, the
Borrower shall deliver to the Liquidity Provider such form or forms and such
other evidence of the eligibility of the Borrower for such exemption or
reduction as the Liquidity Provider may reasonably identify to the Borrower as
being required as a condition to exemption from, or reduction in the rate of,
any Taxes.
Section 3.04. PAYMENTS. The Borrower shall make or cause to be
made each payment to the Liquidity Provider under this Agreement so as to cause
the same to be received by the Liquidity Provider not later than 1:00 P.M. (New
York City time) on the day when due. The Borrower shall make all such payments
in lawful money of the United States of America, to the Liquidity Provider in
immediately available funds, by wire transfer to Citibank N.A., New York, ABA #
▇▇▇▇▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇, Reference: Northwest Airlines EETC 2001-1B
#4187944, Attention: ▇. ▇▇▇▇ MT215000.
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 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 (or, in the case of an
Applied Provider Advance, the date on which the Class B 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
15
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 (other than any Unapplied Non-Extension
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 (i) an Applied
Provider Advance (other than an Unapplied Non-Extension Advance) shall always be
a LIBOR Advance unless the Borrower elects otherwise and (ii) 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. (New York City time) 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 Unapplied Non-Extension Advance shall bear interest
in an amount equal to the Investment Earnings on amounts on deposit in the Class
B Cash Collateral Account plus the Applicable Margin for such Unapplied
Non-Extension Advance on the amount of such Unapplied Non-Extension Advance from
time to time, payable in arrears on each Distribution Date.
16
(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 but excluding Advances) shall bear
interest at a rate per annum equal to the Base Rate plus 2.0% until paid.
(g) Each change in the Base Rate shall become effective
immediately. The rates of interest specified in this Section 3.07 with respect
to any Advance or other amount shall be referred to as the "APPLICABLE LIQUIDITY
RATE".
Section 3.08. REPLACEMENT OF BORROWER. From time to time and
subject to the successor Borrower's meeting the eligibility requirements set
forth in Section 6.9 of the Intercreditor Agreement applicable to the
Subordination Agent, upon the effective date and time specified in a written and
completed Notice of Replacement Subordination Agent in substantially the form of
Annex VI attached hereto (a "NOTICE OF REPLACEMENT SUBORDINATION AGENT")
delivered to the Liquidity Provider by the then Borrower, the successor Borrower
designated therein shall be substituted for as the Borrower for all purposes
hereunder.
Section 3.09. FUNDING LOSS INDEMNIFICATION. The Borrower shall
pay to the Liquidity Provider, upon the request of the Liquidity Provider, such
amount or amounts as shall be sufficient (in the reasonable opinion of the
Liquidity Provider) to compensate it for any loss, cost, or expense incurred 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 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 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:
17
(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 and the Fee Letter duly executed on
behalf of the Borrower and acknowledged by Northwest;
(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, the Fee Letter and the
Intercreditor Agreement);
(iv) A copy of the Prospectus Supplement and specimen
copies of the Class B Certificates;
(v) An executed copy of each document, instrument,
certificate and opinion delivered on or before the Closing
Date pursuant to the Class B 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 Trustees, the Borrower and the
Liquidity Provider created by the Operative Agreements
executed and delivered on or prior to the Closing Date;
(vii) A letter from Northwest Airlines Corporation,
pursuant to which (i) Northwest Airlines Corporation 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 Northwest Airlines Corporation 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) Norwest Airlines Corporation agrees
to allow the Liquidity Provider to inspect its books and
records regarding such transactions, and to discuss such
transactions with officers and employees of Northwest Airlines
Corporation; and
18
(viii) Such other documents, instruments, opinions and
approvals pertaining to the transactions contemplated hereby
or by the other Operative Agreements as the Liquidity Provider
shall have reasonably requested.
(b) The following statement shall be true on and as of the
Effective Date: no event has occurred and is continuing, or would
result from the entering into of this Agreement or the making of any
Advance, which constitutes a Liquidity Event of Default.
(c) The Liquidity Provider shall have received payment in full
of all fees and other sums required to be paid to or for the account
of the Liquidity Provider on or prior to the Effective Date.
(d) All conditions precedent to the issuance of the
Certificates under the Trust Agreements shall have been satisfied or
waived, all conditions precedent to the effectiveness of the other
Liquidity Facilities shall have been satisfied or waived, and all
conditions precedent to the purchase of the Class A-1 Certificates,
Class A-2 Certificates and Class C 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.
19
(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) this Agreement 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.
20
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
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Liquidity Provider: LANDESBANK HESSEN-THURINGEN GIROZENTRALE
Main Tower
Neue Mainzer ▇▇▇. ▇▇ - ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Attention: Asset Finance
Telephone: ▇▇-▇▇-▇▇▇▇-▇▇▇▇
Telecopy: ▇▇-▇▇-▇▇▇▇-▇▇▇▇
with a copy of any Notice of Borrowing to:
LANDESBANK HESSEN-THURINGEN
NEW YORK BRANCH
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Project 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, (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 7.03. 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.
21
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 7(c) 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 3.01, 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 Fee Letter applicable to this Agreement, the Intercreditor
Agreement or any other Operative Agreement to which it is a party. The
indemnities contained in Section 7(c) 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.
22
(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 B 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 as the
Liquidity Provider may in its sole discretion select (but excluding Northwest
and any of its Affiliates), subject to the requirements of Section 7.08(b). No
such granting of participations 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.
23
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 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 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-8BEN or Form W-8ECI, 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-8BEN or Form W-8ECI, 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-8ECI or Form
W-8BEN 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.
24
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 and mail),
postage prepaid, to each party hereto at its address set forth in
Section 7.02 hereof, or at such other address of which the Liquidity
Provider shall have been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to ▇▇▇ in any other jurisdiction.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE
TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS
BEING ESTABLISHED, including, without limitation, contract claims, tort claims,
breach of duty claims and all other common law and statutory claims. The
Borrower and the Liquidity Provider each warrant and represent that it has
reviewed this waiver with its legal counsel, and that it knowingly and
voluntarily waives its jury trial rights following consultation with such legal
counsel. THIS WAIVER IS IRREVOCABLE, AND CANNOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
Section 7.12. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
25
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.
26
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,
not in its individual capacity but
solely as Subordination Agent, as
agent and trustee for the Class B
Trustee, as Borrower
By:
--------------------------------------
Name:
Title:
LANDESBANK HESSEN - THURINGEN
GIROZENTRALE, as Liquidity Provider
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
27
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 LANDESBANK HESSEN -
THURINGEN GIROZENTRALE (the "LIQUIDITY PROVIDER"), with reference to the
Revolving Credit Agreement (2001-1B) dated as of June __, 2001, 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 B Certificates which was
payable on ____________, ____ (the "DISTRIBUTION DATE") in
accordance with the terms and provisions of the Class B Trust
Agreement and the Class B 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 was due and payable on the Class
B Certificates on the Distribution Date, (ii) does not include
any amount with respect to the payment of principal of, or
premium on, the Class A-1 Certificates, the Class A-2
Certificates, the Class B Certificates or the Class C
Certificates, or interest on the Class A-1 Certificates, Class
A-2 Certificates, the Class C Certificates, or the Class D
Certificates, if any, (iii) was computed in accordance with
the provisions of the 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 Maximum Available Commitment on the date hereof,
(v) does not include any amount of interest which was due and
payable on the Class B 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
I-1
of such amount until so applied shall be commingled with other
funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, the making of the Interest Advance as requested by this
Notice of Borrowing shall automatically reduce, subject to reinstatement in
accordance with the terms of the Liquidity Agreement, the Maximum Available
Commitment by an amount equal to the amount of the Interest Advance requested to
be made hereby as set forth in clause (i) of paragraph (3) of this Notice of
Borrowing and such reduction shall automatically result in corresponding
reductions in the amounts available to be borrowed pursuant to a subsequent
Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:
--------------------------------------
Name:
Title:
I-2
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest Advance Notice of
Borrowing]
I-3
Annex II to
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 LANDESBANK
HESSEN - THURINGEN GIROZENTRALE (the "LIQUIDITY PROVIDER"), with reference to
the Revolving Credit Agreement (2001-1B) dated as of June __, 2001, 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, 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 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-1 Certificates, the Class A-2 Certificates, the Class
C Certificates, or the Class D Certificates, if any, (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
II-1
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,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:
--------------------------------------
Name:
Title:
II-2
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Non-Extension Advance Notice of
Borrowing]
II-3
Annex III to
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned subordination agent (the "BORROWER"), hereby certifies to LANDESBANK
HESSEN - THURINGEN GIROZENTRALE (the "LIQUIDITY PROVIDER"), with reference to
the Revolving Credit Agreement (2001-1B) dated as of June __, 2001, 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
__________, ____. 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 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-1 Certificates, the Class A-2
Certificates, the Class C Certificates, or the Class D 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
III-1
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,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:
--------------------------------------
Name:
Title:
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SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Downgrade Advance Notice of
Borrowing]
III-3
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 LANDESBANK HESSEN -
THURINGEN GIROZENTRALE (the "LIQUIDITY PROVIDER"), with reference to the
Revolving Credit Agreement (2001-1B) dated as of June __, 2001, 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 B 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 B 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 B Certificates, or principal of, or interest or premium
on, the Class A-1 Certificates, the Class A-2 Certificates, the
Class C Certificates, or the Class D 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.
(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(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.
IV-1
(5) The Borrower hereby requests that the Advance requested
hereby be a Base Rate Advance [and that such Base Rate Advance be
converted into a LIBOR Advance on the third Business Day following
your receipt of this notice]1.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Final Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the obligation
of the Liquidity Provider to make further Advances under the Liquidity
Agreement; and (B) following the making by the Liquidity Provider of the Final
Advance requested by this Notice of Borrowing, the Borrower shall not be
entitled to request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:
--------------------------------------
Name:
Title:
-----------
(1) Bracketed language may be included at Borrower's option.
IV-2
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Final Advance Notice of
Borrowing]
IV-3
Annex V to
Revolving Credit Agreement
NOTICE OF TERMINATION
[Date]
State Street Bank and Trust Company,
as Subordination Agent, as Borrower
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Revolving Credit Agreement (2001-1B) dated as of June __, 2001, between
State Street Bank and Trust Company, as Subordination Agent, as
Borrower, and LANDESBANK HESSEN - THURINGEN GIROZENTRALE (the
"Liquidity Agreement")
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.01 of the
Liquidity Agreement, by reason of the occurrence of a Liquidity Event of Default
and the existence of a Performing Note Deficiency (each as defined therein), we
are giving this notice to you in order to cause (i) our obligations to make
Advances (as defined therein) under such Liquidity Agreement to terminate on the
fifth Business Day after the date on which you receive this notice and (ii) you
to request a Final Advance under the Liquidity Agreement pursuant to Section
3.6(i) of the Intercreditor Agreement (as defined in the Liquidity Agreement) as
a consequence of your receipt of this notice.
V-1
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,
LANDESBANK HESSEN - THURINGEN
GIROZENTRALE, as Liquidity Provider
By:
--------------------------------------
Name:
Title:
cc: State Street Bank and Trust Company of
Connecticut, National Association,
as Class B Trustee
V-2
Annex VI to
Revolving Credit Agreement
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement (2001-1B) dated as of June __, 2001, between
State Street Bank and Trust Company, as Subordination Agent, as
Borrower, and LANDESBANK HESSEN - THURINGEN 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.
VI-1
We ask that this transfer be effective as of _______________,
____.
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:
--------------------------------------
Name:
Title:
VI-2