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IRREVOCABLE REVOLVING CREDIT AGREEMENT
CLASS A CERTIFICATES
Dated as of November __, 1996
between
FLEET NATIONAL BANK,
as Subordination Agent,
as agent and trustee for the
America West Airlines Pass Through Trust 1996-1A,
as Borrower
and
KREDIETBANK N.V.,
NEW YORK BRANCH,
as Liquidity Provider
Relating to
America West Airlines Pass Through Trust 1996-1A
[_._]% America West Airlines Pass Through Certificates,
Series 1996-1A
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS ................................................ 1
Section 1.1 Certain Defined Terms ......................... 1
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT ......................... 5
Section 2.1 The Advances .................................. 5
Section 2.2 Making the Advances ........................... 6
Section 2.3 Fees .......................................... 7
Section 2.4 Reduction or Termination of the
Commitment .................................. 8
Section 2.5 Repayments of Interest Advances or the
Final Advance ............................... 8
Section 2.6 Repayments of Downgrade Advances .............. 9
Section 2.7 Payments to the Liquidity Provider Under
the Intercreditor Agreement ................. 9
Section 2.8 Book Entries .................................. 9
Section 2.9 Payments from Available Funds Only ............ 10
ARTICLE III
OBLIGATIONS OF THE BORROWER ................................ 10
Section 3.1 Increased Costs ............................... 10
Section 3.2 Capital Adequacy .............................. 11
Section 3.3 Payments Free of Deductions ................... 11
Section 3.4 Payments ...................................... 12
Section 3.5 Computations .................................. 13
Section 3.6 Payment on Non-Business Days .................. 13
Section 3.7 Interest ...................................... 13
Section 3.8 Replacement of Borrower ....................... 14
Section 3.9 Funding Loss Indemnification .................. 14
Section 3.10 Illegality ................................... 15
ARTICLE IV
CONDITIONS PRECEDENT ....................................... 15
Section 4.1 Conditions Precedent to Effectiveness of
Section 2.1 ................................. 15
Section 4.2 Conditions Precedent to Borrowing ............. 17
ARTICLE V
COVENANTS .................................................. 18
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Page
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Section 5.1 Affirmative Covenants of the Borrower ....... 18
Section 5.2 Negative Covenants of the Borrower .......... 18
ARTICLE VI
FINAL ADVANCE ............................................ 18
Section 6.1 Final Advance ............................... 19
ARTICLE VII
MISCELLANEOUS ............................................ 19
Section 7.1 Amendments, Etc. ............................ 19
Section 7.2 Notices, Etc. ............................... 19
Section 7.3 No Waiver; Remedies ......................... 20
Section 7.4 Further Assurances .......................... 20
Section 7.5 Indemnification; Survival of Certain
Provisions ................................ 20
Section 7.6 Liability of the Liquidity Provider ......... 21
Section 7.7 Costs, Expenses and Taxes ................... 21
Section 7.8 Binding Effect; Participations .............. 22
Section 7.9 Severability ................................ 23
Section 7.10 GOVERNING LAW .............................. 24
Section 7.11 Submission to Jurisdiction; Waiver of
Jury Trial ............................... 24
Section 7.12 Execution in Counterparts .................. 25
Section 7.13 Entirety ................................... 25
Section 7.14 Headings; Section References ............... 25
Section 7.15 LIQUIDITY PROVIDER'S OBLIGATION TO MAKE
ADVANCES ................................. 25
Annex I - Interest Advance Notice of Borrowing
Annex II - Downgrade Advance Notice of Borrowing
Annex III - Notice of Replacement Borrower
Annex IV - Notice of Automatic Reduction of Commitment
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IRREVOCABLE REVOLVING CREDIT AGREEMENT
CLASS A CERTIFICATES
IRREVOCABLE REVOLVING CREDIT AGREEMENT, CLASS A CERTIFICATES dated as of
November __, 1996 between FLEET NATIONAL BANK, a national banking association,
not in its individual capacity but solely as Subordination Agent under the
Intercreditor Agreement (each as defined below), as agent and trustee for the
Class A Trust (as defined below) (the "Borrower"), and KREDIETBANK N.V., acting
through its New York Branch (the "Liquidity Provider").
W I T N E S S E T H
WHEREAS, pursuant to the Class A Trust Agreement (such term and all other
capitalized terms used in these recitals having the meanings set forth or
referred to in Section 1.1), the Class A Trust is issuing the Class A
Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a portion
of the interest on the Class A Certificates in accordance with their terms, has
requested the Liquidity Provider to enter into this Agreement, providing in
part for the Borrower to request in specified circumstances that advances be
made hereunder.
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms. (a) Definitions. As used in this
Agreement and unless otherwise expressly indicated, or unless the context
clearly requires otherwise, the following capitalized terms shall have the
following respective meanings for all purposes of this Agreement:
"Advance" means an Interest Advance, a Final Advance or a Downgrade
Advance, as the case may be.
"Applicable Liquidity Rate" means the rates of interest specified in
Section 3.7 with respect to any Advance.
"Applicable Margin" means (x) with respect to any Downgrade Advance (other
than an Applied Downgrade Advance) .40% (40 basis points) and (y) with respect
to any other Advance including an Applied Downgrade Advance 1.5% (150 basis
points).
"Applied Downgrade Advance" means any amount in respect of a Downgrade
Advance withdrawn from the Class A Cash Collateral Account for the purpose of
paying interest on the Class A
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Certificates in accordance with Section 3.6(f) of the Intercreditor Agreement.
"Available Commitment" means, at any time of determination, an amount
equal to (i) the Commitment at such time less (ii) subject to the proviso
contained in the third sentence of Section 2.2(a), the aggregate amount of each
Advance outstanding at such time; provided that following a Downgrade Advance
or a Final Advance, the Available Commitment shall be zero.
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the higher of
(i) the base commercial lending rate announced from time to time by the
Liquidity Provider, or (ii) the rate quoted by the Liquidity Provider, at
approximately 11:00 A.M., New York City time, to dealers in the New York
Federal funds market for overnight offering of dollars by the Liquidity
Provider, for deposit plus .50 of 1 percent (.50%).
"Base Rate Advance" means an Advance that bears interest at a rate based
upon the Base Rate.
"Borrower" has the meaning assigned to such term in the recital of parties
to this Agreement.
"Borrowing" means the making of Advances requested by delivery of a Notice
of Borrowing or pursuant to Section 6.1.
"Business Day" means any day other than a Saturday or Sunday or a day on
which commercial banks are required or authorized to close in New York, New
York or Hartford, Connecticut, 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.
"Commitment" means, initially, [$__,___,___] as the same may be reduced
from time to time in accordance with Section 2.4(a).
"Downgrade Advance" means an Advance made pursuant to Section 2.2(b).
"Effective Date" has the meaning specified in Section 4.1. The delivery
of the certificate of the Liquidity Provider contemplated by Section 4.1(d)
shall be conclusive evidence that the Effective Date has occurred.
"Expenses" means liabilities, obligations, damages, settlements,
penalties, claims, actions, suits, costs, expenses and disbursements
(including, without limitation, reasonable fees
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and disbursements of legal counsel and costs of investigation), provided that
Expenses shall not include any Taxes.
"Expiry Date" means [__], [____].
"Final Advance" means an Advance made pursuant to Sections 2.2(c) and 6.1.
"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 2.2(a).
"Interest Period" means, with respect to any LIBOR Advance, each of the
following periods:
(i) the period beginning on the date such LIBOR Advance is made (or
is converted from a Base Rate Advance) and ending on the next Regular
Distribution Date; and
(ii) each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the next Regular
Distribution Date.
"Lending Office" means the lending office of the Liquidity Provider,
presently located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other
lending office as the Liquidity Provider from time to time shall notify the
Borrower at its lending office hereunder.
"LIBOR Advance" means an Advance bearing interest at a rate based upon the
LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period, the rate per annum
at which deposits in U.S. Dollars are offered for the relevant Interest Period
by the Liquidity Provider to prime banks in the London interbank market at
approximately 11:00 A.M. (London time) two Business Days before the first day of
such Interest Period in the principal amount of the Advance to which such
Interest Period is to apply and for a period of time comparable to such Interest
Period, as quoted by the Liquidity Provider to the Subordination Agent.
"Liquidity Event of Default" means the occurrence of the following: all of
the Equipment Notes shall have been either declared to be immediately due and
payable or shall not have been paid at their final maturity. A Liquidity Event
of Default shall
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not occur upon an automatic acceleration of the Equipment
Notes as a result of an America West Bankruptcy Event.
"Liquidity Indemnitee" means (i) the Liquidity Provider, (ii) each
affiliate of the Liquidity Provider, (iii) the respective directors, officers,
employees, agents and servants of the Liquidity Provider and its affiliates,
and (iv) the successors and permitted assigns of the persons described in
clauses (i) through (iii), inclusive.
"Liquidity Provider" has the meaning assigned to such term in the recital
of parties to this Agreement.
"Margin" means 0.40% per annum.
"Non-Excluded Tax" has the meaning specified in Section 3.3.
"Notice of Borrowing" has the meaning specified in Section 2.2(d).
"Notice of Replacement Borrower" has the meaning specified in Section 3.8.
"Participant" has the meaning assigned to such term in Section 7.8(b).
"Prospectus" means the prospectus included in the registration statement
on Form S-3 (File No. 333-14691) filed by America West relating to certain pass
through certificates, as such Prospectus may be amended or supplemented.
"Related Indemnitee" means, with respect to any Liquidity Indemnitee, its
director, officer, employee, agent, affiliate or employer.
"Replenishment Amount" has the meaning assigned to such term in Section
2.6(b).
"Required Amount" means, for any day, the sum of the aggregate amount of
interest, calculated at the rate per annum equal to the Stated Interest Rate for
the Class A Certificates, that would be payable on the Class A 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 A Certificates on such
day and without regard to expected future payments of principal on the Class A
Certificates.
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"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 A Certificates have been paid in full (or
provision has been made for such payment in accordance with the Intercreditor
Agreement and the Trust Agreements) or are otherwise no longer entitled to the
benefits of this Agreement; (iii) the date on which the Borrower delivers to
the Liquidity Provider a certificate, signed by a Responsible Officer of the
Borrower, certifying that a Replacement Liquidity Facility has been substituted
for this Agreement in full pursuant to Section 3.6(e) of the Intercreditor
Agreement; (iv) the date on which the Liquidity Provider makes the Final
Advance; and (v) the date on which no Advance is or may (including by reason of
reinstatement as herein provided) become available for a Borrowing hereunder.
"Unpaid Advance" has the meaning assigned to such term in Section 2.5.
(b) Terms Defined in the Intercreditor Agreement. For all purposes of
this Agreement, the following terms shall have the respective meanings assigned
to such terms in the Intercreditor Agreement:
"America West", "America West Bankruptcy Event", "Certificates", "Class A
Certificates", "Class A Certificateholders", "Class A Cash Collateral
Account", "Class A Trust", "Class A Trust Agreement", "Class A Trustee",
"Class B Certificates", "Class C Certificates", "Class D Certificates",
"Class E Certificates", "Closing Date", "Controlling Party", "Corporate
Trust Office", "Distribution Date", "$", "Equipment Notes", "Indenture",
"Investment Earnings", "Liquidity Facility", "▇▇▇▇▇'▇", "Operative
Agreements", "Performing Equipment Note", "Performing Note Deficiency",
"Person", "Pool Balance", "Rating Agency", "Refunding Agreement", "Regular
Distribution Date", "Replacement Liquidity Facility", "Responsible
Officer", "Scheduled Payment", "Special Payment", "Standard & Poor's",
"Stated Interest Rate", "Subordination Agent", "Taxes", "Threshold Rating",
"Triggering Event", "Trust", "Trust Agreements", "Trustee", "Underwriters",
"Underwriting Agreement", and "Written Notice".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.1 The Advances. The Liquidity Provider hereby
irrevocably agrees, on the terms and conditions hereinafter set forth, to make
Advances to the Borrower from time
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to time on any Business Day during the period from the Effective Date until
12:00 Noon (New York City time) on the Expiry Date (unless the obligations of
the Liquidity Provider shall be earlier terminated in accordance with the terms
of Section 2.4(b)) in an aggregate amount at any time outstanding not to exceed
the Commitment.
Section 2.2 Making the Advances (a) Interest Advances shall be made in
one or more Borrowings by delivery to the Liquidity Provider of one or
more written and completed Notices of Borrowing in substantially the form of
Annex I attached hereto, signed by a Responsible Officer of the Borrower, in an
amount not exceeding the Available Commitment at such time and shall be used
solely for the payment when due of interest on the Class A Certificates at the
Stated Interest Rate therefor in accordance with Section 3.6(a) of the
Intercreditor Agreement. Each Interest Advance made hereunder shall
automatically reduce the Available Commitment and the amount available to be
borrowed hereunder by subsequent Advances by the amount of such Interest
Advance (subject to reinstatement as provided in the next sentence). Upon
repayment to the Liquidity Provider in full of the amount of any Interest
Advance made pursuant to this Section 2.2(a), together with accrued interest
thereon (as provided herein), the Available Commitment shall be reinstated by
the amount of such repaid Interest Advance; provided, however, that the
Available Commitment shall not be so reinstated at any time if (x) both (i) a
Triggering Event shall have occurred and be continuing and (ii) a Performing
Note Deficiency exists or (y) a Liquidity Event of Default shall have occurred
and be continuing.
(b) A Downgrade Advance shall be made in a single Borrowing upon a
downgrading of the rating of the Liquidity Provider resulting in the Liquidity
Provider's ratings not meeting the Threshold Rating (as provided for in Section
3.6(c) of the Intercreditor Agreement) unless a Replacement Liquidity Facility
shall have been delivered to the Borrower in accordance with said Section
3.6(c), by delivery to the Liquidity Provider of a written and completed Notice
of Borrowing in substantially the form of Annex II attached hereto, signed by a
Responsible Officer of the Borrower, in an amount not exceeding the Available
Commitment at such time, and shall be used to fund the Class A Cash Collateral
Account in accordance with said Section 3.6(c). The Liquidity Provider shall
promptly notify the Borrower of any downgrade of its unsecured debt rating by
▇▇▇▇▇'▇ or Standard & Poor's below the applicable Threshold Rating.
(c) A Final Advance shall be made by the Liquidity Provider without the
necessity for a Notice of Borrowing at the option of the Liquidity Provider on
the occurrence of an event described in Section 6.1(a) or 6.1(b) in an amount
equal to the Available Commitment at such time, and shall be used to fund the
Class A Cash Collateral Account.
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(d) Each Borrowing (other than under Section 2.2(c)) shall be made on
notice in writing (a "Notice of Borrowing") in substantially the form required
by Section 2.2(a) or 2.2(b), as the case may be, given not later than 12:00
Noon (New York City time) on the Business Day prior to the day of the proposed
Borrowing by the Borrower to the Liquidity Provider. Upon satisfaction of the
conditions precedent set forth in Section 4.2 with respect to a requested
Borrowing, the Liquidity Provider shall, before 12:00 Noon (New York City time)
on the date of such Borrowing or on such later Business Day specified by the
Borrower in such Notice of Borrowing, make available to the Borrower, in U.S.
dollars and in immediately available funds, the amount of such Borrowing to be
paid to the Borrower in accordance with its payment instructions. If a Notice
of Borrowing is delivered by the Borrower in respect of any Borrowing after
12:00 Noon (New York City time) on a Business Day, the Liquidity Provider
shall, before 12:00 Noon (New York City time) on the second Business Day next
following the day of receipt of such Notice of Borrowing or on such later
Business Day specified by the Borrower in such Notice of Borrowing, make
available to the Borrower, in U.S. dollars and in immediately available funds,
the amount of such Borrowing to be paid to the Borrower in accordance with its
payment instructions. Payments of proceeds of a Borrowing shall be made by
wire transfer of immediately available funds to the Borrower in accordance with
such wire transfer instructions as the Borrower shall furnish from time to time
to the Liquidity Provider for such purpose. Each Notice of Borrowing shall be
irrevocable and binding on the Borrower.
(e) Upon the making of any Advance requested pursuant to a Notice of
Borrowing, in accordance with the Borrower's payment instructions, the
Liquidity Provider shall be fully discharged of its obligation hereunder with
respect to such Notice of Borrowing, and the Liquidity Provider shall not
thereafter be obligated to make any further Advances hereunder in respect of
such Notice of Borrowing to the Borrower or to any other person (including the
holder of any Class A Certificate or the Class A Trustee) who makes to the
Class A Trustee or the Borrower a demand for payment with respect to any Class
A Certificate. By paying to the Borrower proceeds of Advances requested by the
Borrower in accordance with the provisions of this Agreement, the Liquidity
Provider makes no representation as to, and assumes no responsibility for, the
correctness or sufficiency for any purpose of the amount of the Advances so
made and requested.
Section 2.3 Fees. (a) The Borrower agrees to pay to the
Liquidity Provider a fee equal to 0.25% of the Commitment (as in effect on the
Effective Date). Such fee shall be payable on the Effective Date.
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(b) The Borrower shall pay, or shall cause to be paid, to the Liquidity
Provider, a fee equal to 0.40% per annum on the average Available Commitment
from the Effective Date to the earlier of the date on which a Downgrade Advance
is made and the Termination Date. Such fee shall be payable in arrears on each
Regular Distribution Date. Nothing contained in this Section 2.3 shall require
the Borrower to pay any amount under this Section 2.3 other than to the extent
the Borrower shall have funds available therefor.
Section 2.4 Reduction or Termination of the Commitment. (a) Automatic
Reductions. Promptly following each date on which the Required Amount is
reduced as a result of a reduction in the Pool Balance of the Class A
Certificates or otherwise, the Commitment shall automatically be reduced to an
amount equal to such reduced Required Amount (as calculated by the Borrower).
The Borrower shall give notice of any such automatic reduction of the Commitment
(substantially in the form of Annex IV hereto) to the Liquidity Provider within
two Business Days thereof. The failure by the Borrower to furnish any such
notice shall not affect such automatic reduction of the Commitment.
(b) Termination. Upon the making of any Downgrade Advance or Final
Advance hereunder or the occurrence of the Termination Date, the obligation of
the Liquidity Provider to make further Advances hereunder shall automatically
and irrevocably terminate, and the Borrower shall not be entitled to request any
further Borrowing hereunder.
Section 2.5 Repayments of Interest Advances or the Final Advance. Subject
to Sections 2.7 and 2.9, the Borrower hereby agrees to pay, or to cause to be
paid, to the Liquidity Provider on each date on which the Liquidity Provider
shall make an Interest Advance or the Final Advance, an amount equal to (a) the
amount of such Interest Advance or the Final Advance (any such Interest Advance
or the Final Advance, until repaid, is referred to herein as an "Unpaid
Advance"), plus (b) interest on the amount of each such Unpaid Advance as
provided in Section 3.7. Subject to Sections 2.6, 2.7 and 2.9, unless otherwise
waived by the Liquidity Provider, the Borrower shall be obligated, without
notice of an Advance or demand for repayment from the Liquidity Provider (which
notice and demand are hereby waived by the Borrower), to repay the Liquidity
Provider for all Interest Advances and Final Advances on the same day as made
and all Applied Downgrade Advances on the same day they became Applied Downgrade
Advances pursuant to Section 2.6. The Borrower and the Liquidity Provider agree
that the repayment in full of each Interest Advance and the Final Advance on the
date such Interest Advance or the Final Advance is made is intended to be a
contemporaneous exchange for new value given to the Borrower by the Liquidity
Provider.
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Section 2.6 Repayments of Downgrade Advances. (a) Amounts advanced
hereunder in respect of a Downgrade Advance shall be deposited in the Class A
Cash Collateral Account, and invested and withdrawn from the Class A Cash
Collateral Account, as set forth in Sections 3.6(c), (e) and (f) of the
Intercreditor Agreement. The Borrower agrees to pay to the Liquidity Provider,
on each Regular Distribution Date, commencing on the first Regular Distribution
Date after the making of a Downgrade Advance, interest on the principal amount
of any such Downgrade Advance as provided in Section 3.7. Immediately upon the
withdrawal of any amounts from the Class A Cash Collateral Account on account of
a reduction in the Required Amount, the Borrower shall repay the Downgrade
Advance in a principal amount equal to the amount of such reduction, plus
interest on the principal amount repaid as provided in Section 3.7.
(b) Upon the provision of a Replacement Liquidity Facility in replacement
of this Agreement in accordance with Section 3.6(e) of the Intercreditor
Agreement, and prior to the effectiveness of any Replacement Liquidity
Facility, the Borrower agrees that all amounts owing to the Liquidity Provider
shall be repaid in full, whether from advances made by the Replacement
Liquidity Provider, from amounts remaining on deposit in the Class A Cash
Collateral Account after giving effect to any application of funds therefrom to
any payment of interest on the Class A Certificates on the date of such
replacement, or otherwise.
Section 2.7 Payments to the Liquidity Provider Under the Intercreditor
Agreement. In order to provide for payment or repayment to the Liquidity
Provider of any amounts hereunder, the Intercreditor Agreement provides that
amounts available and referred to in Articles II and III of the Intercreditor
Agreement, to the extent payable to the Liquidity Provider pursuant to the terms
of the Intercreditor Agreement (including, without limitation, Section 3.6(f) of
the Intercreditor Agreement), shall be paid to the Liquidity Provider in
accordance with the terms thereof. Amounts so paid to the Liquidity Provider
shall be applied by the Liquidity Provider in the order of priority required by
the applicable provisions of Articles II and III of the Intercreditor Agreement.
Section 2.8 Book Entries. The Liquidity Provider shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower resulting from Advances made from time to time and
the amounts of principal and interest payable hereunder and paid from time to
time in respect thereof; provided, however, that the failure by the Liquidity
Provider to maintain such account or accounts shall not affect the obligations
of the Borrower in respect of Advances.
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Section 2.9 Payments from Available Funds Only. All payments to be made
by the Borrower under this Agreement shall be made only from amounts received by
it that constitute Scheduled Payments or Special Payments and only to the extent
that the Borrower shall have sufficient income or proceeds therefrom to enable
the Borrower to make payments in accordance with the terms hereof after giving
effect to the priority of payments provisions set forth in the Intercreditor
Agreement. The Liquidity Provider agrees that it will look solely to such
amounts to the extent available for distribution to it as provided in the
Intercreditor Agreement and this Agreement and that the Borrower, in its
individual capacity, is not personally liable to it for any amounts payable or
liability under this Agreement except as expressly provided in this Agreement,
the Intercreditor Agreement or any Refunding Agreement. Amounts on deposit in
the Class A Cash Collateral Account shall be available to make payments only to
the extent and for the purposes expressly contemplated in Section 3.6(f) of the
Intercreditor Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.1 Increased Costs. If the Liquidity Provider shall determine
that (a) any change in any law or regulation or in the interpretation thereof by
any court or administrative or governmental authority charged with the
administration thereof or in the compliance by the Liquidity Provider (or its
head office) with any applicable direction, request or requirement (whether or
not having the force of law) of any central bank or competent governmental or
other authority shall either (i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets held by, or deposits in or
for the account of, or loans made by, the Liquidity Provider, or (ii) impose on
the Liquidity Provider any other condition regarding this Agreement or any
Advance, or (iii) change the basis of taxation of any amounts payable to the
Liquidity Provider (other than Taxes imposed on the overall net or gross income
of the Liquidity Provider) and (b) the result of any event referred to in the
preceding clause (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. A certificate as to such increased cost incurred by the
Liquidity Provider as a result of any event mentioned in clause (i), (ii) or
(iii) above, prepared in reasonable detail
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and submitted by the Liquidity Provider to the Borrower, shall be conclusive,
absent manifest error, as to the amount thereof.
The Liquidity Provider agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if making such change would avoid the need
for, or reduce the amount of, any amount payable under this Section 3.1 that
may thereafter accrue and would not, in the reasonable judgment of the
Liquidity Provider, be otherwise disadvantageous in any material respect to the
Liquidity Provider.
Section 3.2 Capital Adequacy. If the Liquidity Provider shall determine
that the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by the Liquidity Provider (or its head office) with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, 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 such additional amount describing the event which has the
effect of reducing the rate of return on the Liquidity Provider's capital,
prepared in reasonable detail and submitted by the Liquidity Provider to the
Borrower, shall be conclusive, absent manifest error, as to the amount thereof.
The Liquidity Provider agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if making such change would avoid the need
for, or reduce the amount of, any amount payable under this Section 3.2 that
may thereafter accrue and would not, in the reasonable judgment of the
Liquidity Provider, be otherwise disadvantageous in any material respect to the
Liquidity Provider.
Section 3.3 Payments Free of Deductions. All payments made by the
Borrower under this Agreement shall be made free and
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clear of, and without reduction for or on account of, any present or future
stamp or other taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, restrictions or conditions of any nature whatsoever now or
hereafter imposed, levied, collected, withheld or assessed, excluding any Taxes
imposed on the overall net income of the Liquidity Provider and excluding United
States federal income tax withholding to the extent such withholding is, or
would be, actually imposed upon payments to the Liquidity Provider as of the
date of this Agreement (such non-excluded taxes being referred to herein,
collectively, as "Non-Excluded Taxes" and, individually, as a "Non-Excluded
Tax"). If any Non-Excluded Taxes are required to be withheld from any amounts
payable to the Liquidity Provider under this Agreement, the amounts so payable
to the Liquidity Provider shall be increased to the extent necessary to yield to
the Liquidity Provider (after payment of all Non-Excluded Taxes and taxes
imposed on the receipt of such increase) interest or any other such amounts
payable under this Agreement at the rates or in the amounts specified in this
Agreement. Whenever any Non-Excluded Tax is payable by the Borrower, promptly
thereafter the Borrower shall send the Liquidity Provider certified copies of
tax receipts evidencing such payment by the Borrower. The Liquidity Provider
agrees to provide to the Borrower on or prior to the Effective Date, and from
time to time thereafter prior to the expiration of the effectiveness of and
promptly upon the occurrence of any event requiring a change in the most recent
form previously delivered by it (and prior to the immediately following due date
of any payment by the Borrower hereunder), to the extent that the Liquidity
Provider is legally entitled to do so, two original Internal Revenue Service
Form 1001 or 4224, as appropriate, or any successor or other form prescribed by
the Internal Revenue Service, certifying that the Liquidity Provider is
completely exempt from United States withholding tax on payments pursuant to
this Agreement.
The Liquidity Provider agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if making such change would avoid the need
for, or reduce the amount of, any amount payable under this Section 3.3 that
may thereafter accrue and would not, in the reasonable judgment of the
Liquidity Provider, be otherwise disadvantageous in any material respect to the
Liquidity Provider.
Section 3.4 Payments. The Borrower shall make or cause to be made each
payment to the Liquidity Provider under this Agreement so as to cause the same
to be received by the Liquidity Provider not later than 1:00 P.M. (New York City
time) on the day when due. The Borrower shall make all such payments in lawful
money of the United States of America, to the Liquidity Provider in immediately
available funds, by wire transfer to The Bank of New York, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, ABA No.
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▇▇▇-▇▇▇-▇▇▇, for the account of Kredietbank New York, Account No. 802-▇▇▇▇▇▇▇
(referencing America West Airlines Liquidity Facility).
Section 3.5 Computations. All computations of interest based on the Base
Rate shall be made on the basis of a year of 365 or 366 days, as the case may
be, and all computations of (x) interest based on the LIBOR Rate and (y) fees
payable to the Liquidity Provider, shall be made on the basis of a year of 360
days, in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest is
payable.
Section 3.6 Payment on Non-Business Days. Whenever any payment to be made
hereunder (other than a payment on LIBOR Advances) becomes due and payable on a
day other than a Business Day, such payment shall be made on the next succeeding
Business Day and interest thereon shall be payable at the then applicable rate
during such extension. If any payment on a LIBOR Advance becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day unless the result of such extension
would be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day.
Section 3.7 Interest. (a) The Borrower shall pay, or shall cause to be
paid, interest on (i) the unpaid principal amount of each Advance from and
including the date of such Advance to but excluding the date such principal
amount shall be paid in full and (ii) any other amount due hereunder (whether
fees, commissions, expenses or other amounts or, to the extent permitted by law,
installments of interest on Advances or any such other amount) which is not paid
when due (whether at stated maturity, by acceleration or otherwise) from and
including the due date thereof to but excluding the date such amount is paid in
full, in each such case, at a fluctuating interest rate per annum for each day
equal to the Applicable Liquidity Rate for such Advance for such day, but in no
event at a rate per annum greater than the maximum rate permitted by applicable
law; provided, however, that, if at any time the otherwise applicable interest
rate as set forth in this Section 3.7 shall exceed the maximum rate permitted by
applicable law, then any subsequent reduction in such interest rate will not
reduce the rate of interest payable pursuant to this Section 3.7 below the
maximum rate permitted by applicable law until the total amount of interest
accrued equals the amount of interest that would have accrued if such otherwise
applicable interest rate as set forth in this Section 3.7 had at all times been
in effect. Nothing contained in this Section 3.7 shall require the Borrower to
pay any amount under this Section 3.7 other than to the extent the Borrower
shall have funds available therefor.
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(b) Each Advance will be either a Base Rate Advance or a LIBOR Advance as
provided in this Section. Each such Advance will be a Base Rate Advance for
the period from the date of its borrowing to (but excluding) the third Business
Day following the Liquidity Provider's receipt of the Notice of Borrowing for
such Advance. Thereafter, such Advance shall be a LIBOR Advance; provided that
the Final Advance shall, until repaid in full, be a Base Rate Advance and the
Borrower may not convert the Final Advance into a LIBOR Advance.
(c) Each LIBOR Advance shall bear interest during each Interest Period at
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 the Base Rate plus the
Applicable Margin for such Base Rate Advance, payable in arrears on each
Regular Distribution Date and, in the event of the payment of principal of such
Base Rate Advance on a day other than a Regular Distribution Date, on the date
of such payment (to the extent of interest accrued on the amount of principal
repaid).
(e) Each amount not paid when due hereunder (whether fees, commissions,
expenses or other amounts or, to the extent permitted by applicable law,
installments of interest on Advances) shall bear interest at the Base Rate.
(f) Each change in the Base Rate shall become effective immediately.
Section 3.8 Replacement of Borrower. Subject to Section 5.2(b), from
time to time, upon the effective date and time specified in a written
and completed Notice of Replacement Borrower in substantially the form of Annex
III attached hereto (a "Notice of Replacement Borrower") 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 3.9 Funding Loss Indemnification. The Borrower shall pay to the
Liquidity Provider, upon the request of the Liquidity Provider, such amount or
amounts as shall be sufficient (in the reasonable opinion of the Liquidity
Provider) to compensate it for any loss, cost, or expense incurred as a result
of:
(a) Any payment or prepayment of a LIBOR Advance on a date other
than the last day of the Interest Period for such Advance; or
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(b) Any failure by the Borrower to borrow a LIBOR Advance on the
date for borrowing specified in the relevant notice under Section 2.2 or
3.7.
Section 3.10 Illegality. Notwithstanding any other
provision in this Agreement, if any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Liquidity
Provider (or its Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency shall make it unlawful or impossible for the Liquidity Provider (or its
Lending Office) to maintain or fund its LIBOR Advances, then upon notice to the
Borrower by the Liquidity Provider, the outstanding principal amount of the
LIBOR Advances shall be converted to Base Rate Advances (a) immediately upon
demand of the Liquidity Provider, if such change or compliance with such
request, in the judgment of the Liquidity Provider, requires immediate
repayment; or (b) at the expiration of the last Interest Period to expire
before the effective date of any such change or request.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1 Conditions Precedent to Effectiveness of Section 2.1.
Section 2.1 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied or waived:
(a) The Liquidity Provider shall have received on or before the
Closing Date each of the following, each dated such date (except for
those documents delivered pursuant to paragraphs (v) and (vii) of this
Section 4.1(a)), and each in form and substance satisfactory to the
Liquidity Provider:
(i) This Agreement duly executed on behalf of the Borrower;
(ii) The Intercreditor Agreement duly executed on behalf of
each of the parties thereto;
(iii) Counterparts (or certified copies thereof) of each of
the Operative Agreements (other than this Agreement and the
Intercreditor Agreement) which, when taken together, bear the
signatures of all of the respective parties thereto and which are
in full force and effect in accordance with their respective terms;
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(iv) A copy of the Prospectus and specimen copies of the Class
A Certificates;
(v) Evidence that, on the Effective Date, the Class A
Certificates, the Class B Certificates, the Class C Certificates,
the Class D Certificates and the Class E Certificates will receive
long-term credit ratings from ▇▇▇▇▇'▇ of not lower than A2, Baa2,
Ba1, Ba3 and B1, respectively, and from Standard & Poor's of not
lower than AA-, A-, BBB-, BB and B+, respectively;
(vi) An executed or certified copy of each document,
instrument, certificate and opinion delivered pursuant to the Class
A Trust Agreement, the Intercreditor Agreement, the Refunding
Agreements and the other Operative Agreements (together with, in
the case of each such opinion (unless such opinion is addressed to
the Liquidity Provider), other than the opinion of counsel for the
Underwriters, a letter from
the counsel rendering such opinion to the effect that the Liquidity
Provider is entitled to rely on such opinion as if it were
addressed to the Liquidity Provider);
(vii) Evidence that there shall have been made and shall be
in full force and effect, all filings, recordings and/or
registrations, and there shall have been given or taken any notice
or other similar action as may be reasonably necessary or, to the
extent reasonably requested by the Liquidity Provider, reasonably
advisable, in order to establish, perfect, protect and preserve the
right, title and interest, remedies, powers, privileges, liens and
security interests of, or for the benefit of, the Trustees and the
Liquidity Provider created by the Operative Agreements;
(viii) Copies of the appraisals included in the Prospectus;
(ix) A letter from America West agreeing to provide to the
Liquidity Provider the periodic financial reports referred to in
Section 8.04(a) of the Trust Agreements; and
(x) Such other documents, instruments, opinions and approvals
(and, if requested by the Liquidity Provider, certified duplicates
or executed copies thereof) as the Liquidity Provider shall have
reasonably requested.
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(b) The following statements shall be true and shall be deemed to
have been represented by each party (other than clause (ii) below, which
shall be deemed to have been represented only by America West) to the
Refunding Agreements as being true on and as of the Effective Date:
(i) The representations and warranties of such Person
contained in each Refunding Agreement are true and correct on and
as of the Effective Date as though made on and as of the Effective
Date; and
(ii) No event has occurred and is continuing, or would result
from the entering into of this Agreement or the making of any
Advance, which constitutes a Liquidity Event of Default.
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.
(c) All conditions precedent to the issuance of the Certificates
under the Trust Agreements shall have been satisfied, all conditions
precedent to the effectiveness of the other Liquidity Facilities shall
have been satisfied, and all conditions precedent to the purchase of the
Certificates by the Underwriters under the Underwriting Agreement shall
have been satisfied (except for any of such conditions precedent under
the Underwriting Agreement that shall have been waived by the
Underwriters).
(d) The Borrower shall have received a certificate, dated the date
hereof, signed by a duly authorized representative of the Liquidity
Provider, certifying that all conditions precedent to the effectiveness
of Section 2.1 have been satisfied or waived (other than this Section
4.1(d)).
Section 4.2 Conditions Precedent to
Borrowing. The obligation of the Liquidity Provider to make an Advance on the
occasion of each Borrowing shall be subject to the conditions precedent that
the Effective Date shall have occurred and, except in the case of a Final
Advance, prior to the date of such Borrowing, the Borrower shall have delivered
a Notice of Borrowing which conforms to the terms and conditions of this
Agreement and has been completed as may be required by the relevant form of the
Notice of Borrowing for the type of Advance requested.
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ARTICLE V
COVENANTS
Section 5.1 Affirmative Covenants of the Borrower. So long as any Advance
shall remain unpaid or the Liquidity Provider shall have any Commitment
hereunder or the Borrower shall have any obligation to pay any amount to the
Liquidity Provider hereunder, the Borrower will, unless the Liquidity Provider
shall otherwise consent in writing:
(a) Performance of This and Other Agreements. Punctually pay or
cause to be paid all amounts payable by it under this Agreement and the
other Operative Agreements and
observe and perform in all material respects the conditions, covenants
and requirements applicable to it contained in this Agreement and the
other Operative Agreements.
(b) Reporting Requirements. Furnish to the Liquidity Provider with
reasonable promptness, such 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.
Section 5.2 Negative Covenants of the Borrower. So long as any Advance
shall remain unpaid or the Liquidity Provider shall have any Commitment
hereunder or the Borrower shall have any obligation to pay any amount to the
Liquidity Provider hereunder, the Borrower will not, without the written consent
of the Liquidity Provider:
(a) Amendments. Modify, amend or supplement; or give any consent
to any modification, amendment, or supplement; or make any waiver with
respect to; any provision of the Trust Agreements or the Intercreditor
Agreement, except for any supplemental agreement to the Trust Agreements
provided for in Section 9.01 thereof.
(b) Borrower. Appoint or permit or suffer to be appointed any
successor Borrower without the prior written approval of the Liquidity
Provider (which approval shall not be unreasonably withheld).
ARTICLE VI
FINAL ADVANCE
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Section 6.1 Final Advance. If (a) both (i) a Triggering Event shall have
occurred and be continuing and (ii) a Performing Note Deficiency exists or (b) a
Liquidity Event of Default shall have occurred and be continuing, the Liquidity
Provider may, in its discretion, make a Final Advance whereupon (i) the
Liquidity Provider shall have no further obligation to make Advances hereunder,
(ii) all other outstanding Advances shall be automatically converted into Final
Advances for purposes of determining the Applicable Liquidity Rate for interest
payable thereon, and (iii) subject to Sections 2.7 and 2.9, all Advances, any
accrued interest thereon and any other amounts outstanding hereunder shall
become immediately due and payable to the Liquidity Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendments, Etc. No amendment or waiver of any provision of
this Agreement, nor consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Liquidity Provider, and, in the case of an amendment, the Borrower, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
Section 7.2 Notices, Etc. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including telecopier and mailed or delivered or sent by telecopier):
Borrower: Fleet National Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Administration
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Liquidity
Provider: Kredietbank N.V.
New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Manager
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
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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 Refunding Agreements at their respective addresses
set forth therein.
Section 7.3 No Waiver; Remedies. No failure on the part of the Liquidity
Provider to exercise, and no delay in exercising, any right under this Agreement
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right under this Agreement preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
Section 7.4 Further Assurances. The Borrower agrees to do 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 7.5 Indemnification; Survival of Certain Provisions. The Liquidity
Provider shall be indemnified hereunder to the extent and in the manner
described in Sections 10 and 13 of the Lease. 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, whether arising before, on or after the date hereof, that may
be imposed, incurred by or asserted against any Liquidity Indemnitee, in any way
relating to, resulting from, or arising out of or in connection with, this
Agreement, the Intercreditor Agreement or the Refunding Agreements; provided,
however, that the Borrower shall not be required to indemnify, protect, defend
and hold harmless any Liquidity Indemnitee in respect of any Expense of such
Liquidity Indemnitee (i) to the extent such Expense is attributable to the gross
negligence or willful misconduct of such Liquidity Indemnitee or any Related
Indemnitee, (ii) that is ordinary and usual operating overhead expense or (iii)
to the extent such Expense is attributable to the failure by such Liquidity
Indemnitee or its Related Indemnitee to perform or observe any agreement,
covenant or condition on its part to be performed or observed in any Operative
Agreement. The indemnities contained in such Sections 10 and 13 of the Lease,
and the provisions of Sections 3.1, 3.2, 3.3, 7.5 and 7.7, shall survive the
termination of this Agreement.
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Section 7.6 Liability of the Liquidity Provider. (a) Neither the
Liquidity Provider nor any of its officers or directors shall be liable or
responsible for: (i) the use which may be made of the Advances or any acts or
omissions of the Borrower or any beneficiary or transferee in connection
therewith; (ii) the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in any or all
respects invalid, insufficient, fraudulent or forged; or (iii) the making of
Advances by the Liquidity Provider against delivery of a Notice of Borrowing and
other documents which do not comply with the terms hereof; provided, however,
that the Borrower shall have a claim against the Liquidity Provider, and the
Liquidity Provider shall be liable to the Borrower, to the extent of any damages
suffered by the Borrower which were the result of (A) the Liquidity Provider's
willful misconduct or negligence in determining whether documents presented
hereunder comply with the terms hereof, or (B) any breach by the Liquidity
Provider of any of the terms of this Agreement, including, but not limited to,
the Liquidity Provider's failure to make lawful payment hereunder after the
delivery to it by the Borrower of a Notice of Borrowing strictly complying with
the terms and conditions hereof.
(b) The Liquidity Provider shall not be liable or responsible in any
respect for (i) any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with this Agreement or any Notice of Borrowing delivered hereunder,
or (ii) any action, inaction or omission which may be taken by it in good
faith, absent willful misconduct or negligence (in which event the extent of
the Liquidity Provider's potential liability to the Borrower shall be limited
as set forth in the immediately preceding paragraph), in connection with this
Agreement or any Notice of Borrowing.
Section 7.7 Costs, Expenses and Taxes. The Borrower agrees to pay, or
cause to be paid (A) on the Effective Date and on such later date or dates on
which the Liquidity Provider shall make demand, all reasonable out-of-pocket
costs and expenses of the Liquidity Provider in connection with the preparation,
negotiation, execution, delivery, filing and recording of this Agreement, any
other Operative Agreement and any other documents which may be delivered in
connection with this Agreement, including, without limitation, the reasonable
fees and expenses of outside counsel for the Liquidity Provider and (B) on
demand, all reasonable costs and expenses of the Liquidity Provider (including
reasonable counsel fees and expenses) in connection with (i) the enforcement of
this Agreement or any other Operative Agreement, (ii) the modification or
amendment of, or supplement to, this Agreement or any other Operative Agreement
or such other documents which may be delivered in connection herewith or
therewith (whether or not the same shall become effective) or
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(iii) any action or proceeding relating to any order, injunction, or other
process or decree restraining or seeking to restrain the Liquidity Provider from
paying any amount under this Agreement, the Intercreditor Agreement or any other
Operative Document or otherwise affecting the application of funds in the Cash
Collateral Accounts. In addition, the Borrower shall pay any and all recording,
stamp and other similar taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing and recording of this Agreement,
any other Operative Agreement and such other documents, and agrees to save the
Liquidity Provider harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes
or fees.
Section 7.8 Binding Effect; Participations. (a) This Agreement shall be
binding upon and inure to the benefit of the Borrower and the Liquidity Provider
and their respective successors and assigns, except that neither the Liquidity
Provider (except as otherwise provided in this Section 7.8) nor the Borrower
shall have the right to assign its rights hereunder or any interest herein
without the prior written consent of the other party, subject to the requirement
of Section 7.8(b). The Liquidity Provider may grant participations herein or in
any of its rights or security hereunder and under the other Operative Agreements
to such Persons as the Liquidity Provider may in its sole discretion select,
subject to the requirement of Section 7.8(b). No such participation by the
Liquidity Provider, however, will relieve the Liquidity Provider of its
obligations hereunder. In connection with any participation or any proposed
participation, the Liquidity Provider may disclose to the participant or the
proposed participant any information that the Borrower is required to deliver or
to disclose to the Liquidity Provider pursuant to this Agreement. The Borrower
acknowledges and agrees that the Liquidity Provider's source of funds may derive
in part from its participants. Accordingly, references in this Agreement and
the other Operative Agreements to determinations, reserve and capital adequacy
requirements, increased costs, reduced receipts and the like as they pertain to
the Liquidity Provider shall be deemed also to include those of each of its
participants (subject, in each case, to the maximum amount that would have been
incurred by or attributable to the Liquidity Provider directly if the Liquidity
Provider, rather than the participant, had held the interest participated).
(b) If, pursuant to subsection (a) above, the Liquidity Provider sells
any participation to any bank or other entity (each, a "Participant"), then,
concurrently with the effectiveness of such participation, the Participant
shall (i) represent to the Liquidity Provider (for the benefit of the Liquidity
Provider and the Borrower) either (A) that it is incorporated under the laws of
the United States or a state thereof or (B) that under applicable law and
treaties, no taxes
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will be required to be withheld by the Borrower or the Liquidity Provider with
respect to any payments to be made to such Participant in respect of this
Agreement, (ii) furnish to the Liquidity Provider and the Borrower either (x) a
statement that it is incorporated under the laws of the United States or a state
thereof or (y) if it is not so incorporated, two copies of a properly completed
United States Internal Revenue Service Form 4224 or Form 1001, as appropriate,
or other applicable form, certificate or document prescribed by the Internal
Revenue Service certifying, in each case, such Participant's entitlement to a
complete exemption from United States federal withholding tax in respect to any
and all payments to be made hereunder, and (iii) agree (for the benefit of the
Liquidity Provider and the Borrower) to provide the Liquidity Provider and the
Borrower a new Form 4224 or Form 1001, as appropriate, (A) on or before the date
that any such form expires or becomes obsolete or (B) after the occurrence of
any event requiring a change in the most recent form previously delivered by it
and prior to the immediately following due date of any payment by the Borrower
hereunder, certifying in the case of a Form 1001 or Form 4224 that such
Participant is entitled to a complete exemption from United States federal
withholding tax on payments under this Agreement. Unless the Borrower has
received forms or other documents reasonably satisfactory to it indicating that
payments hereunder are not subject to United States federal withholding tax, the
Borrower will withhold taxes as required by law from such payments at the
applicable statutory rate without any obligation to gross-up or indemnify
pursuant to Section 3.3.
(c) Notwithstanding the other provisions of this Section 7.8, the
Liquidity Provider may assign and pledge all or any portion of the Advances
owing to it to any Federal Reserve Bank or the United States Treasury as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank, provided that any payment in respect of such assigned Advances made by the
Borrower to the Liquidity Provider in accordance with the terms of this
Agreement shall satisfy the Borrower's obligations hereunder in respect of such
assigned Advance to the extent of such payment. No such assignment shall
release the Liquidity Provider from its obligations hereunder.
Section 7.9 Severability. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or nonauthorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
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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.
(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) if such party does not maintain an office for the transaction
of its business in New York, agrees that service of process in any such
action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form and mail),
postage prepaid, to each party hereto at its address set forth in Section
7.2, or at such other address of which the Liquidity Provider shall have
been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to ▇▇▇ in any other jurisdiction.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE TO WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO
THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING
ESTABLISHED, including, without limitation, contract claims, tort claims,
breach of duty claims and all other common law and statutory claims. The
Borrower and the Liquidity Provider each warrant and represent that it has
reviewed this waiver with its legal counsel, and that it knowingly and
voluntarily waives its
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jury trial rights following consultation with such legal
counsel. THIS WAIVER CANNOT BE MODIFIED ORALLY.
Section 7.12 Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same Agreement.
Section 7.13 Entirety. This Agreement and the other Operative Agreements
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof and thereof and supersede all prior understandings and
agreements of such parties.
Section 7.14 Headings; Section References. Section headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose. Unless the context
otherwise requires or otherwise indicated herein, all Section references in this
Agreement are references to Sections hereof.
Section 7.15 LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES. EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE LIQUIDITY PROVIDER
TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO DELIVER NOTICES OF
BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL BE UNCONDITIONAL
AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE STRICTLY IN
ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first set forth above.
FLEET NATIONAL BANK, not in its
individual capacity but solely
as Subordination Agent, as
Borrower
By ________________________________
Name:
Title:
KREDIETBANK N.V., NEW YORK BRANCH,
as Liquidity Provider
By ________________________________
Name:
Title:
By ________________________________
Name:
Title:
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30
Annex I to Irrevocable
Revolving Credit Agreement
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower
(the "Borrower"), hereby certifies to KREDIETBANK N.V., acting through its New
York Branch (the "Liquidity Provider"), with reference to the Irrevocable
Revolving Credit Agreement, Class A Certificates dated as of November __, 1996,
between the Borrower and the Liquidity Provider (the "Liquidity Agreement"; the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of an Interest Advance by the Liquidity Provider to be used for
the payment of interest on the Class A Certificates which was payable on
the Distribution Date falling on _____________ in accordance with the
terms and provisions of the Class A Trust Agreement and the Class A
Certificates and has not been paid pursuant to clause
[fourth/fifth/sixth] of Section 3.2 of the Intercreditor Agreement or
clause [sixth/seventh/eighth] of Section 3.3 of the Intercreditor
Agreement, which Advance is requested to be made on _____________.
(3) The amount of the Interest Advance requested hereby (i) is
$_____________, to be applied in respect of the payment of interest which
was due and payable on the Class A Certificates on such Distribution Date,
(ii) does not include any amount with respect to the payment of principal
of, or premium on, the Class A Certificates, the Class B Certificates, the
Class C Certificates, the Class D Certificates or Class E Certificates, or
interest on the Class B Certificates, the Class C Certificates, the Class
D Certificates or the Class E Certificates, (iii) was computed in
accordance with the provisions of the Class A Certificates, the Class A
Trust Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), (iv) does not exceed the
Available Commitment on the date hereof, and (v) has not been and is not
the subject of a prior or contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will apply the same in accordance with
the terms of Section 3.2 or 3.3 of the Intercreditor Agreement, as the
case may be, (b) no portion of such amount shall be applied by the
Borrower for any other purpose and (c) no portion of such amount until so
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applied shall be commingled with other funds held by the Borrower.
(5) The Borrower hereby requests that the Advance requested hereby
be a Base Rate Advance and that such Base Rate Advance be converted into
a LIBOR Rate Advance on the third Business Day following your receipt of
this notice.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, the making of the Interest Advance as requested by this Notice of
Borrowing shall automatically reduce, subject to reinstatement in accordance
with the terms of the Liquidity Agreement, the Available Commitment by an
amount equal to the amount of the Interest Advance requested to be made hereby
as set forth in clause (i) of paragraph (3) of this Certificate and such
reduction shall automatically result in corresponding reductions in the amounts
available to be borrowed pursuant to a subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the _ day of
______________, ________.
FLEET NATIONAL BANK, not in its
individual capacity but solely
as Subordination Agent, as
Borrower
By ________________________________
Name:
Title:
2
32
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Interest Advance Notice of Borrowing]
3
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Annex II to Irrevocable
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
subordination agent (the "Borrower"), hereby certifies to KREDIETBANK, N.V.,
acting through its New York Branch (the "Liquidity Provider"), with reference
to the Irrevocable Revolving Credit Agreement, Class A Certificates dated as of
November __, 1996, 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 A Cash Collateral Account in accordance with
Section 3.6(c) of the Intercreditor Agreement by reason of the
downgrading of the short-term unsecured debt rating of the Liquidity
Provider issued by either Rating Agency below the Threshold Rating, which
Advance is requested to be made on _________________.
(3) The amount of the Downgrade Advance requested hereby (i) is
$___________, which equals the Available Commitment on the date hereof
and is to be applied in respect of the funding of the Class A 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 A Certificates, or
principal of, or interest or premium on, the Class B Certificates, the
Class C Certificates, the Class D Certificates or the Class E
Certificates, (iii) was computed in accordance with the provisions of the
Class A Certificates, the Class A 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
A Cash Collateral Account and apply the same in accordance with the terms
of Section 3.6(c) of the Intercreditor Agreement, (b) no portion of such
amount shall be applied by the Borrower for any other purpose and (c) no
portion of such amount until so applied shall be commingled with other
funds held by the Borrower.
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(5) The Borrower hereby requests that the Advance requested hereby
be a Base Rate Advance and that such Base Rate Advance be converted into
a LIBOR Rate Advance on the third Business Day following your receipt of
this notice.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Downgrade Advance as requested by this Notice
of Borrowing shall automatically and irrevocably terminate the obligation of
the Liquidity Provider to make further Advances under the Liquidity Agreement;
and (B) following the making by the Liquidity Provider of the Downgrade Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the _ day of __________, _____.
FLEET NATIONAL BANK, not in its
individual capacity but solely
as Subordination Agent, as
Borrower
By ________________________________
Name:
Title:
2
35
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Downgrade Advance Notice of Borrowing]
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Annex III to Irrevocable
Revolving Credit Agreement
NOTICE OF REPLACEMENT BORROWER
[Date]
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
[Name of Transferee]
[Address of Transferee]
all rights of the undersigned as Borrower under the Liquidity Agreement
referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the first
paragraph of the Liquidity Agreement.
By this transfer, all rights of the undersigned as Borrower under the
Liquidity Agreement are transferred to the transferee and the transferee shall
hereafter have the sole rights as Borrower thereunder. The undersigned shall
pay any costs and expenses of such transfer, including, but not limited to,
transfer taxes or governmental charges.
We ask that this transfer be effective as of __________, ____.
FLEET NATIONAL BANK, not in its
individual capacity but solely
as Subordination Agent, as
Borrower
By ________________________________
Name:
Title:
37
Annex IV to Irrevocable
Revolving Credit Agreement
NOTICE OF AUTOMATIC REDUCTION OF COMMITMENT
[Date]
Ladies and Gentlemen:
The undersigned, a duly authorized signatory of the undersigned
subordination agent (the "Borrower"), hereby notifies Kredietbank N.V., acting
through its New York Branch (the "Liquidity Provider"), with reference to the
Irrevocable Revolving Credit Agreement dated as of November __, 1996, 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, pursuant to Section 2.4(a) of the Liquidity
Agreement, the Commitment has been automatically reduced to $_________.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the _ day of __________, _____.
FLEET NATIONAL BANK, not in its
individual capacity but solely
as Subordination Agent, as
Borrower
By _______________________________
Name:
Title:
2