Exhibit 4(c)(3)
EXECUTION COPY
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REVOLVING CREDIT AGREEMENT
(2002-1 C-1)
Dated as of August 5, 2002
between
STATE STREET BANK AND TRUST COMPANY
as Subordination Agent,
as Borrower
and
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH.
as Primary Liquidity Provider
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Relating to
Northwest Airlines Pass Through Trust ▇▇▇▇-▇▇-▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ Through Certificates,
Series 2002-1 C-1
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
Section 1.01. Certain Defined Terms.....................................1
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENT.................................1
Section 2.01. The Advances..............................................7
Section 2.02. Making the Advances.......................................7
Section 2.03. Fees......................................................7
Section 2.04. Reduction or Termination of the Maximum Commitment........9
Section 2.05. Repayments of Interest Advances or the Final Advance......9
Section 2.06. Repayments of Provider Advances..........................10
Section 2.07. Payments to the Primary 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......................................13
Section 3.01. Increased Costs..........................................13
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 ................................................16
Section 3.08. Replacement of Borrower..................................17
Section 3.09. Funding Loss Indemnification.............................17
Section 3.10. Illegality...............................................17
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Page
ARTICLE IV CONDITIONS PRECEDENT..............................................18
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01....18
Section 4.02. Conditions Precedent to Borrowing........................19
ARTICLE V COVENANTS..........................................................20
Section 5.01. Affirmative Covenants of the Borrower....................20
Section 5.02. Negative Covenants of the Borrower.......................20
ARTICLE VI LIQUIDITY EVENTS OF DEFAULT.......................................20
Section 6.01. Liquidity Events of Default..............................20
ARTICLE VII MISCELLANEOUS....................................................21
Section 7.01. Amendments, Etc..........................................21
Section 7.02. Notices, Etc.............................................21
Section 7.03. No Waiver; Remedies......................................22
Section 7.04. Further Assurances.......................................22
Section 7.05. Indemnification; Survival of Certain Provisions..........22
Section 7.06. Liability of the Primary Liquidity Provider..............23
Section 7.07. Costs, Expenses and Taxes................................23
Section 7.08. Binding Effect; Participations...........................24
Section 7.09. Severability.............................................25
Section 7.10. GOVERNING LAW............................................25
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial;
Waiver of Immunity.......................................25
Section 7.12. Execution in Counterparts................................26
Section 7.13. Entirety.................................................26
Section 7.14. Headings.................................................26
Section 7.15. PRIMARY 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
iii
REVOLVING CREDIT AGREEMENT (2002-1 C-1)
This REVOLVING CREDIT AGREEMENT (2002-1 C-1) dated as of August 5,
2002, 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 WESTDEUTSCHE LANDESBANK GIROZENTRALE, a German banking institution
organized under the laws of the State of North Rhine - Westphalia ("WestLB"),
acting through its New York Branch, (the "Primary Liquidity Provider").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Class C-1 Trust Agreement (such term and
all other capitalized terms used in these recitals having the meanings set
forth or referred to in Section 1.01), the Class C-1 Trust is issuing the
Class C-1 Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a
portion of the interest on the Class C-1 Certificates in accordance with their
terms, has requested the Primary 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, 2.50% 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 Primary Liquidity Provider from three
Federal funds brokers of recognized standing selected by the Primary
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, Boston, Massachusetts and Salt
Lake City, Utah, or, so long as any Class C-1 Certificate is outstanding,
the city and state in which the Class C-1 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, 2004.
"Deposit Agreement" means the Deposit Agreement, dated August 5,
2002, between ▇▇▇▇▇ Fargo Bank Northwest, National Association, as Escrow
Agent and Credit Suisse First Boston, New York Branch, as Depositary,
pertaining to the Class C-1 Certificates, as the same may be amended,
modified or supplemented from time to time in accordance with the terms
thereof.
"Depositary" has the meaning assigned to such term in the Deposit
Agreement.
"Deposits" has the meaning assigned to such terms in the Deposit
Agreement.
"Downgrade Advance" means an Advance made pursuant to Section
2.02(c).
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"Downgrade Event" means a downgrading of the Primary Liquidity
Provider's short-term rating issued by any 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 C-1 Certificates, in which case,
such downgrading of the Primary Liquidity Provider's short-term rating
shall not constitute a Downgrade Event.
"Effective Date" has the meaning specified in Section 4.01. The
delivery of the certificate of the Primary 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 Primary 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 Primary
Liquidity Provider (including a transferee of an Advance) or Lending
Office, after the date on which such successor Primary 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 Primary Liquidity Provider failing to
deliver to the Borrower any certificate or document (which certificate or
document in the good faith judgment of the Primary 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 August 3, 2003, 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 Primary Liquidity Provider and the
Subordination Agent with respect to the initial Class C-1 Primary
Liquidity Facility and (ii) any fee letter entered into between the
Subordination Agent and any Replacement Primary Liquidity Provider in
respect of such Primary Liquidity Facility.
"Final Advance" means an Advance made pursuant to Section 2.02(d).
3
"Intercreditor Agreement" means the Intercreditor Agreement dated
the date hereof, among the Trustees, the Primary Liquidity Provider, the
liquidity provider under each Primary Liquidity Facility (other than this
Agreement), the Above-Cap Liquidity Provider, the Policy Provider and the
Subordination Agent, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
"Interest Advance" means an Advance made pursuant to Section
2.02(a).
"Interest Period" means, with respect to any LIBOR Advance, each of
the following periods:
(i) the period beginning on the third Business Day following either
(a) the Primary Liquidity Provider's receipt of the Notice of
Borrowing for such LIBOR Advance or (b) the withdrawal of funds
from the Class C-1 Primary Cash Collateral Account for the
purpose of paying interest on the Class C-1 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 Primary 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 Primary Liquidity Provider
presently located in New York, New York, or such other lending office as
the Primary 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 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 Primary Liquidity Provider in the London interbank market
at
4
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 $300.0
million, or (ii) a Northwest Bankruptcy Event.
"Liquidity Indemnitee" means (i) the Primary Liquidity Provider,
(ii) the directors, officers, employees and agents of the Primary
Liquidity Provider, and (iii) the successors and permitted assigns of the
persons described in clauses (i) and (ii), inclusive.
"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, $12,405,555.56 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.
"Primary Liquidity Provider" has the meaning assigned to such term
in the recital of parties to this Agreement.
"Prospectus Supplement" means the Prospectus Supplement dated July
29, 2002, relating to the Class G-1 Certificates, Class G-2 Certificates,
the Class C-1 Certificates and the Class C-2 Certificates, as such
Prospectus Supplement may be amended or supplemented.
"Provider Advance" means a Downgrade Advance or a Non-Extension
Advance.
5
"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 Capped
Interest Rate for the Class C-1 Certificates, that would be payable on
the Class C-1 Certificates on each of the six successive Regular
Distribution Dates immediately following such day or, if such day is a
Regular Distribution Date, on such day and the succeeding five Regular
Distribution Dates, in each case calculated on the basis of the Pool
Balance of the Class C-1 Certificates on such day and without regard to
expected future payments of principal on the Class C-1 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
Primary Liquidity Provider a certificate, signed by a Responsible Officer
of the Borrower, certifying that all of the Class C-1 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 Primary Liquidity Provider
a certificate, signed by a Responsible Officer of the Borrower,
certifying that a Replacement Primary 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 Primary
Liquidity Provider pursuant to Section 6.01 hereof; and (v) the date on
which no Advance is or may (including by reason of reinstatement as
herein provided) become available for a Borrowing hereunder.
"Termination Notice" means the Notice of Termination substantially
in the form of Annex V to this Agreement.
"Transferee" has the meaning assigned to such term in Section
7.08(b).
"Unapplied Downgrade Advance" means any Downgrade Advance other than
an Applied Downgrade Advance.
"Unapplied Non-Extension Advance" means any Non-Extension Advance
other than an Applied Non-Extension Advance.
"Unapplied Provider Advance" means any Provider Advance other than
an Applied Provider Advance.
"Unpaid Advance" has the meaning assigned to such term in Section
2.05.
"Withdrawal Notice" has the meaning 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:
6
"Above-Cap Liquidity Provider", "Acceleration", "Affiliate", "Break
Amount Certificates", "Capped Interest Rate", "Certificates", "Class C-1
Certificateholders", "Class C-1 Certificates", "Class C-1 Primary Cash
Collateral Account", "Class C-1 Trust", "Class C-1 Trust Agreement",
"Class C-1 Trustee", "Class C-2 Certificates", "Class G-1 Certificates",
"Class G-2 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", "Fitch",
"Indenture", "Interest Payment Date", "Investment Earnings", "Liquidity
Obligations", "Loan Trustee", "▇▇▇▇▇'▇", "Non-Extended Facility",
"Northwest", "Northwest Bankruptcy Event", "Note Purchase Agreement",
"Operative Agreements", "Performing Equipment Note", "Person", "Policy
Provider", "Pool Balance", "Prepayment Premium", "Primary Liquidity
Facility", "Rating Agency", "Ratings Confirmation", "Regular Distribution
Date", "Replacement Primary Liquidity Facility", "Responsible Officer",
"Scheduled Payment", "Series G-1 Equipment Note", "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 Primary 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 Primary 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 Primary Liquidity Provider
of one or more written and completed Notices of Borrowing in substantially the
form of Annex I attached hereto, signed by a Responsible Officer of the
Borrower, in an amount not exceeding the Maximum Available Commitment at such
time and shall be used solely for the payment when due of interest on the
Class C-1 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 or increase, as the case may be, 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). Subject to the provisions of
Section 3.6(g) of the Intercreditor Agreement, upon repayment to the Primary
Liquidity Provider of the amount of any Interest Advance made pursuant to this
Section 2.02(a), together with accrued interest thereon (as provided herein),
the Maximum Available Commitment shall be reinstated by the amount of such
repaid Interest Advance, but not to exceed the Maximum Commitment; provided,
however, that the Maximum Available Commitment shall not be so reinstated at
any time if (i) a Liquidity Event of Default shall have occurred and be
continuing and (ii) there is a Performing Note Deficiency.
7
(b) A Non-Extension Advance shall be made in a single Borrowing if
this Agreement is not renewed in accordance with Section 3.6(d) of the
Intercreditor Agreement (unless a Replacement Primary 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 Primary Liquidity Provider of a written and
completed Notice of Borrowing in substantially the form of Annex II attached
hereto, signed by a Responsible Officer of the Borrower, in an amount equal to
the Maximum Available Commitment at such time, and shall be used to fund the
Class C-1 Primary 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 Primary 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 Primary 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 C-1 Primary 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 Primary Liquidity
Provider pursuant to Section 6.01 hereof by delivery to the Primary Liquidity
Provider of a written and completed Notice of Borrowing in substantially the
form of Annex IV attached hereto, signed by a Responsible Officer of the
Borrower, in an amount equal to the Maximum Available Commitment at such time,
and shall be used to fund the Class C-1 Primary 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 Primary
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 Primary 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 Primary 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
shall be made by wire transfer of immediately available funds to the Borrower
in accordance with such wire transfer instructions as the
8
Borrower shall furnish from time to time to the Primary Liquidity Provider for
such purpose. Each Notice of Borrowing shall be irrevocable and binding on the
Borrower.
(f) Upon the making of any Advance requested pursuant to a Notice of
Borrowing, in accordance with the Borrower's payment instructions, the Primary
Liquidity Provider shall be fully discharged of its obligation hereunder with
respect to such Notice of Borrowing, and the Primary 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
Primary 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 Primary
Liquidity Provider shall have fully discharged its obligations hereunder with
respect to such Advance and an event of default shall not have occurred
hereunder. Following the making of any Advance pursuant to Section 2.02(b),
(c) or (d) hereof to fund the Class C-1 Primary Cash Collateral Account, the
Primary Liquidity Provider shall have no interest in or rights to the Class
C-1 Primary Cash Collateral Account, the funds constituting such Advance or
any other amounts from time to time on deposit in the Class C-1 Primary 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 Primary
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 Primary 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 Primary
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) 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
C-1 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 Primary Liquidity Provider within two
Business Days thereof. The failure by the Borrower to furnish any such notice
shall not affect such automatic adjustment 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 Primary Liquidity Provider to make further Advances hereunder shall
automatically and irrevocably terminate, and the Borrower shall not be
entitled to request any further Borrowing hereunder.
Section 2.05. Repayments of Interest Advances or the Final Advance.
Subject to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby agrees,
without notice of an Advance
9
or demand for repayment from the Primary Liquidity Provider (which notice and
demand are hereby waived by the Borrower), to pay, or to cause to be paid, to
the Primary Liquidity Provider on each date on which the Primary 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 Primary 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 Primary 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 Primary Liquidity
Provider in accordance with Section 2.06 and for the purposes of Section
2.06(b)). The Borrower and the Primary 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 Primary Liquidity Provider.
Section 2.06. Repayments of Provider Advances. (a) Amounts advanced
hereunder in respect of a Provider Advance shall be deposited in the Class C-1
Primary Cash Collateral Account, invested and withdrawn from the Class C-1
Primary 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 Primary
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 C-1 Primary Cash Collateral Account for the purpose of paying
interest on the Class C-1 Primary 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 Primary
Liquidity Provider delivers a Termination Notice to the Borrower pursuant to
Section 6.01 hereof, such Provider Advance shall thereafter be treated as a
Final Advance under this Agreement for purposes of determining the Applicable
Liquidity Rate for interest payable thereon. Subject to Sections 2.07 and 2.09
hereof, immediately upon the withdrawal of any amounts from the Class C-1
Primary Cash Collateral Account on account of a reduction in the Required
Amount, the Borrower shall repay to the Primary Liquidity Provider a portion
of the Provider Advances in a principal amount equal to such reduction, plus
interest on the principal amount prepaid as provided in Section 3.07 hereof.
(b) At any time when an Applied Provider Advance (or any portion
thereof) is outstanding, upon the deposit in the Class C-1 Primary Cash
Collateral Account of any amount
10
pursuant to clause "third" of Section 2.4(b) of the Intercreditor Agreement,
clause "third" of Section 3.2 of the Intercreditor Agreement or clause
"fourth" of Section 3.3 of the Intercreditor Agreement (any such amount being
a "Replenishment Amount") for the purpose of replenishing or increasing the
balance thereof up to the Required Amount at such time, (i) the aggregate
outstanding principal amount of all Applied Provider Advances (and of Provider
Advances treated as an Interest Advance for purposes of determining the
Applicable Liquidity Rate for interest payable thereon) shall be automatically
reduced by the amount of such Replenishment Amount and (ii) the aggregate
outstanding principal amount of all Unapplied Provider Advances shall be
automatically increased by the amount of such Replenishment Amount.
(c) Upon the provision of a Replacement Primary Liquidity Facility
in replacement of this Agreement in accordance with Section 3.6(e) of the
Intercreditor Agreement, amounts remaining on deposit in the Class C-1 Primary
Cash Collateral Account after giving effect to any Applied Provider Advance on
the date of such replacement shall be reimbursed to the Primary Liquidity
Provider, but only to the extent such amounts are necessary to repay in full
to the Primary Liquidity Provider all amounts owing to it hereunder.
Section 2.07. Payments to the Primary Liquidity Provider Under the
Intercreditor Agreement. In order to provide for payment or repayment to the
Primary 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 Primary
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 Primary Liquidity Provider in accordance with
the terms thereof. Amounts so paid to the Primary Liquidity Provider shall be
applied by the Primary 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 Primary
Liquidity Provider shall deem appropriate.
Section 2.08. Book Entries. The Primary 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 Primary 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 Primary
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
11
Agreement. Amounts on deposit in the Class C-1 Primary Cash Collateral Account
shall be available to the Borrower to make payments under this Agreement only
to the extent and for the purposes expressly contemplated in Section 3.6(f) of
the Intercreditor Agreement.
Section 2.10. Extension of the Expiry Date; Non-Extension Advance.
The Borrower may, from time to time, by notice to the Primary 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 that the Primary Liquidity Provider renew its obligations
hereunder for a period ending on a date (the "Renewal Date") that is the
earlier of (i) the date which is 15 days after the Final Legal Distribution
Date for the Class C-1 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 Primary Liquidity
Provider has received a request from the Borrower, such Primary 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
Primary 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 Primary Liquidity Facility (such period, with respect to
such Primary Liquidity Facility, the "Consent Period"), advise the Borrower
whether, in its sole discretion, it consents to such extension of its
obligations hereunder for the period ending on the Renewal Date, in which
event the Renewal Date shall become the Expiry Date, which consent may be
given or withheld by the Primary Liquidity Provider in its absolute and sole
discretion; provided, however, that such extension shall not be effective with
respect to the Primary Liquidity Provider if by a notice (a "Withdrawal
Notice") to the Borrower during the Consent Period the Primary Liquidity
Provider revokes its Consent Notice. If a Withdrawal Notice has been given
during the applicable Consent Period or if the Primary Liquidity Provider
fails irrevocably and unconditionally to advise the Borrower on or before the
date on which such Consent Period ends that it agrees to so extend its
obligations hereunder, (and, in each case, if the Primary 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 Primary Liquidity Provider
shall have the right at any time and without the consent of the Borrower to
extend the then effective Expiry Date up to the date that is 15 days after the
Final Legal Distribution Date for the Class C-1 Certificates by giving not
less than five nor more than ten days' prior written notice of such extension
to the Borrower, the Class C-1 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.
12
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs. If the Primary Liquidity Provider
shall determine that (a) any change after the date hereof in any law,
regulation, rule or directive or in the interpretation thereof by any court or
administrative or governmental authority charged with the administration
thereof or in the compliance by the Primary 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 Primary Liquidity
Provider, or (ii) impose on the Primary Liquidity Provider any other condition
regarding this Agreement or any Advance, or (iii) subject the Primary
Liquidity Provider to any Taxes with respect to amounts payable or paid or
change the basis of taxation of any amounts payable to the Primary 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 Primary Liquidity Provider of issuing or maintaining its commitment or
funding or maintaining Advances (which increase in cost shall be determined by
the Primary Liquidity Provider's reasonable allocations of the aggregate of
such cost increases resulting from such event), then, upon demand by the
Primary Liquidity Provider ), the Borrower shall pay, or cause to be paid, to
the Primary Liquidity Provider, from time to time as specified by the Primary
Liquidity Provider, additional amounts which shall be sufficient to compensate
the Primary 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 Primary 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 Primary
Liquidity Provider as a result of any event mentioned in clauses (i), (ii) or
(iii) above, prepared in reasonable detail and submitted by the Primary
Liquidity Provider to the Borrower, shall be conclusive evidence of the amount
owed under this Section, absent manifest error.
The Primary 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 Primary Liquidity Provider, be otherwise disadvantageous to
the Primary Liquidity Provider.
Section 3.02. Capital Adequacy. If the Primary 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 Primary 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 Primary Liquidity Provider's capital as a
consequence
13
of issuing or maintaining its commitment hereunder or its funding or
maintaining Advances to a level below that which the Primary Liquidity
Provider could have achieved but for such adoption, change or compliance
(taking into consideration the Primary Liquidity Provider's policies with
respect to capital adequacy) by an amount deemed by the Primary Liquidity
Provider to be material, then, upon demand by the Primary Liquidity Provider,
the Borrower shall pay to the Primary Liquidity Provider, from time to time as
specified by the Primary Liquidity Provider, additional amounts which shall be
sufficient to compensate the Primary Liquidity Provider for such reduction in
respect of issuing or maintaining its commitment hereunder or its funding or
maintaining Advances. A certificate as to any such additional amount
describing the event which has the effect of reducing the rate of return on
the Primary Liquidity Provider's capital, prepared in reasonable detail and
submitted by the Primary Liquidity Provider to the Borrower, shall be
conclusive evidence of the amount owed under this Section, absent manifest
error.
The Primary 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 Primary Liquidity Provider, be otherwise disadvantageous to
the Primary Liquidity Provider.
Section 3.03. Payments Free of Deductions. (a) All payments made by
the Borrower under this Agreement and the Fee Letter 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
Primary Liquidity Provider under this Agreement, the amounts so payable to the
Primary Liquidity Provider shall be increased to the extent necessary to yield
to the Primary 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 or any amounts payable under the Fee
Letter, as the case may be at the rates or in the amounts specified in this
Agreement or the Fee Letter, as the case may be. The Primary 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 Primary Liquidity Provider, be
otherwise disadvantageous to the Primary Liquidity Provider. On or prior to
the Closing Date, the Primary 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 Primary 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
14
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 Primary 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 Primary 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 Primary 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 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 Primary 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 Primary Liquidity Provider such form or forms and such
other evidence of the eligibility of the Borrower for such exemption or
reduction as the Primary 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 Primary Liquidity Provider under this Agreement so as to
cause the same to be received by the Primary 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
Primary Liquidity Provider in immediately available funds, by wire transfer to
Westdeutsche Landesbank Girozentrale, New York Branch, Account No.
▇▇▇-▇-▇▇▇▇▇▇, Reference: GSF Transportation Northwest EETC 2002-1.
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
15
LIBOR Advance) or reduce the number of days for which interest will be payable
on such Advance on the next interest payment date for such Advance.
Section 3.07. Interest. (a) Subject to Section 2.09, the Borrower
shall pay, or shall cause to be paid, without duplication, interest on (i) the
unpaid principal amount of each Advance from and including the date of such
Advance (or, in the case of an Applied Provider Advance, from and including
the date on which the amount thereof was withdrawn from the Class C-1 Primary
Cash Collateral Account to pay interest on the Class C-1 Certificates) to but
excluding the date such principal amount shall be paid in full (or, in the
case of an Applied Provider Advance, the date on which the Class C-1 Primary
Cash Collateral Account is fully replenished in respect of such Advance) and
(ii) any other amount due hereunder (whether fees, commissions, expenses or
other amounts or, to the extent permitted by law, installments of interest on
Advances or any such other amount) which is not paid when due (whether at
stated maturity, by acceleration or otherwise) from and including the due date
thereof to but excluding the date such amount is paid in full, in each such
case, at a fluctuating interest rate per annum for each day equal to the
Applicable Liquidity Rate (as defined below) for such Advance or such other
amount as in effect for such day, but in no event at a rate per annum greater
than the maximum rate permitted by applicable law; provided, however, that, if
at any time the otherwise applicable interest rate as set forth in this
Section 3.07 shall exceed the maximum rate permitted by applicable law, then
any subsequent reduction in such interest rate will not reduce the rate of
interest payable pursuant to this Section 3.07 below the maximum rate
permitted by applicable law until the total amount of interest accrued equals
the amount of interest that would have accrued if such otherwise applicable
interest rate as set forth in this Section 3.07 had at all times been in
effect.
(b) Each Advance will be either a Base Rate Advance or a LIBOR
Advance as provided in this Section. Each such Advance will be a Base Rate
Advance for the period from the date of its borrowing to (but excluding) the
third Business Day following the Primary 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 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 Primary 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 Primary 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).
16
(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) [RESERVED]
(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 2.5% 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 Primary Liquidity Provider by the then Borrower, the successor Borrower
designated therein shall be substituted as the Borrower for all purposes
hereunder.
Section 3.09. Funding Loss Indemnification. The Borrower shall pay
to the Primary Liquidity Provider, upon the request of the Primary Liquidity
Provider, such amount or amounts as shall be sufficient (in the reasonable
opinion of the Primary Liquidity Provider) to compensate it for any loss,
cost, or expense incurred as a result of the liquidation or redeployment of
deposits or other funds acquired by the Primary Liquidity Provider to fund or
maintain any LIBOR Advance (but excluding loss of anticipated profits)
incurred as a result of:
(1) Any repayment of a LIBOR Advance on a date other than the
last day of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance on
the date for borrowing specified in the relevant notice under
Section 2.02.
Section 3.10. Illegality. Notwithstanding any other provision in
this Agreement, if any change in any applicable law, rule or regulation, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation
or administration thereof, or compliance by the Primary 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 Primary Liquidity Provider (or its
Lending Office) to maintain or fund its LIBOR Advances, then upon notice to
the Borrower by the Primary Liquidity Provider, the outstanding principal
amount of the LIBOR Advances shall be converted to Base Rate Advances (a)
immediately upon demand of the Primary Liquidity Provider, if such change or
compliance
17
with such request, in the judgment of the Primary Liquidity Provider, requires
immediate repayment; or (b) at the expiration of the last Interest Period to
expire before the effective date of any such change or request.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied or waived:
(a) The Primary 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 Primary 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 C-1 Certificates;
(v) An executed copy of each document, instrument, certificate
and opinion delivered on or before the Closing Date pursuant to the
Class C-1 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
Primary Liquidity Provider or accompanied by a letter from the
counsel rendering such opinion to the effect that the Primary
Liquidity Provider is entitled to rely on such opinion as of its
date as if it were addressed to the Primary 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 Primary 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 Primary Liquidity Provider created by the Operative Agreements
executed and delivered on or prior to the Closing Date;
18
(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 Primary Liquidity Provider, and such other
information as the Primary 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) Northwest Airlines
Corporation agrees to allow the Primary 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
(viii) Such other documents, instruments, opinions and
approvals pertaining to the transactions contemplated hereby or by
the other Operative Agreements as the Primary 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 Primary 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 Primary 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 G-1, Class G-2, Class C-1 and
Class C-2 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 Primary
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 Primary 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.
19
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower. So long as any
Advance shall remain unpaid or the Primary Liquidity Provider shall have any
Maximum Commitment hereunder or the Borrower shall have any obligation to pay
any amount to the Primary Liquidity Provider hereunder, the Borrower will,
unless the Primary 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 Primary 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 Primary Liquidity
Provider; and permit the Primary 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 Primary 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 Primary Liquidity Provider.
Section 5.02. Negative Covenants of the Borrower. So long as any
Advance shall remain unpaid or the Primary Liquidity Provider shall have any
Maximum Commitment hereunder or the Borrower shall have any obligation to pay
any amount to the Primary 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 Primary 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 Primary 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 Primary 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
20
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 Primary 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 Primary Liquidity Provider, and, in the case of an amendment
or of a waiver by the Borrower, the Borrower, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
Section 7.02. Notices, Etc. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be
in writing (including telecopier and mailed or delivered or sent by
telecopier):
Borrower: STATE STREET BANK AND TRUST COMPANY
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Primary Liquidity Provider: WESTDEUTSCHE LANDESBANK GIROZENTRALE
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Loan Administration - Suzy Kong
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy of any Notice of Borrowing to:
WESTDEUTSCHE LANDESBANK GIROZENTRALE
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Transportation Finance -
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
21
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 Primary Liquidity Provider pursuant to the provisions
of Articles II and III hereof shall not be effective until received by the
Primary 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
Primary Liquidity Provider to exercise, and no delay in exercising, any right
under this Agreement shall operate as a waiver thereof; nor shall any single
or partial exercise of any right under this Agreement preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
Section 7.04. Further Assurances. The Borrower agrees to do such
further acts and things and to execute and deliver to the Primary Liquidity
Provider such additional assignments, agreements, powers and instruments as
the Primary 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 Primary Liquidity Provider
its rights, powers and remedies hereunder and under the other Operative
Agreements.
Section 7.05. Indemnification; Survival of Certain Provisions. The
Primary 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 Primary 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.
22
Section 7.06. Liability of the Primary Liquidity Provider. (a)
Neither the Primary 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
Primary 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 Primary Liquidity Provider, and
the Primary 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
Primary Liquidity Provider's willful misconduct or negligence in determining
whether documents presented hereunder comply with the terms hereof, or (B) any
breach by the Primary Liquidity Provider of any of the terms of this
Agreement, including, but not limited to, the Primary Liquidity Provider's
failure to make lawful payment hereunder after the delivery to it by the
Borrower of a Notice of Borrowing strictly complying with the terms and
conditions hereof.
(b) Neither the Primary 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 Primary 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 Primary 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 Primary Liquidity
Provider) of the Primary 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
Primary 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 Primary Liquidity Provider from paying
any amount under this Agreement, the Intercreditor Agreement or any other
Operative Agreement or otherwise affecting the application of funds in the
Class C-1 Primary 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 Primary 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.
23
Section 7.08. Binding Effect; Participations. (a) This Agreement
shall be binding upon and inure to the benefit of the Borrower and the Primary
Liquidity Provider and their respective successors and assigns, except that
neither the Primary 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 Primary 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 Primary 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
Primary Liquidity Provider, however, will relieve the Primary Liquidity
Provider of its obligations hereunder. In connection with any participation or
any proposed participation, the Primary 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 Primary Liquidity Provider pursuant
to this Agreement. The Borrower acknowledges and agrees that the Primary
Liquidity Provider's source of funds may derive in part from its participants.
Accordingly, references in this Agreement and the other Operative Agreements
to determinations, reserve and capital adequacy requirements, increased costs,
reduced receipts, additional amounts due pursuant to Section 3.03 and the like
as they pertain to the Primary 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 Primary
Liquidity Provider directly if the Primary Liquidity Provider, rather than the
participant, had held the interest participated).
(b) If, pursuant to subsection (a) above, the Primary 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 Primary Liquidity
Provider (for the benefit of the Primary 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 Primary 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 Primary
Liquidity Provider and the Borrower) to provide the Primary 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
24
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
Primary 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 Primary 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 Primary Liquidity Provider from its obligations
hereunder.
Section 7.09. Severability. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of
such provision in any other jurisdiction.
Section 7.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial;
Waiver of Immunity. (a) Each of the parties hereto hereby irrevocably and
unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any other Operative
Agreement, or for recognition and enforcement of any judgment in
respect hereof or thereof, to the nonexclusive general jurisdiction
of the courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and the
appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought
in such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form 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 Primary
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.
25
(b) THE BORROWER AND THE PRIMARY 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 Primary Liquidity Provider each warrant and
represent that it has reviewed this waiver with its legal counsel, and that it
knowingly and voluntarily waives its jury trial rights following consultation
with such legal counsel. THIS WAIVER IS IRREVOCABLE, AND CANNOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
(c) The Primary Liquidity Provider hereby waives any immunity it may
have from the jurisdiction of the courts of the United States or of any State
and waives any immunity any of its properties located in the United States may
have from attachment or execution upon a judgment entered by any such court
under the United Sates Foreign Sovereign Immunities Act of 1976 or any similar
successor legislation.
Section 7.12. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 7.13. Entirety. This Agreement, the Intercreditor Agreement
and the other Operative Agreements to which the Primary 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. PRIMARY LIQUIDITY PROVIDER'S OBLIGATION TO MAKE
ADVANCES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF
THE PRIMARY 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 C-1 Trustee,
as Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. Ring
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Ring
Title: Assistant Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH, as
Primary Liquidity Provider
By:---------------------------------------
Name:
Title:
By:---------------------------------------
Name:
Title:
27
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 C-1 Trustee,
as Borrower
By:---------------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH, as
Primary Liquidity Provider
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Associate Director
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 Westdeutsche Landesbank
Girozentrale (the "Primary Liquidity Provider"), with reference to the
Revolving Credit Agreement (2002-1 C-1) dated as of August 5, 2002, between
the Borrower and the Primary 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 Primary Liquidity Provider to
be used, subject to clause (3)(v) below, for the payment of the
interest on the Class C-1 Certificates which was payable on
____________, ____ (the "Distribution Date") in accordance with the
terms and provisions of the Class C-1 Trust Agreement and the Class
C-1 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 C-1 Certificates on
the Distribution Date, (ii) does not include any amount with respect
to the payment of principal of, or Break Amount (if any), Prepayment
Premium (if any) or any other premium(if any) on, the Class C-1
Certificates, the Class G-1 Certificates, the Class G-2 Certificates
or the Class C-2 Certificates, or interest on the Class G-1
Certificates, Class G-2 Certificates, the Class C-2 Certificates, or
the Class D Certificates, if any, (iii) was computed in accordance
with the provisions of the Certificates, the Class C-1 Trust
Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), (iv) does not exceed
the Maximum Available Commitment on the date hereof, (v) does not
include any amount of interest which was due and payable on the
Class C-1 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
I-1
amount shall be applied by the Borrower for any other purpose and
(c) no portion of such amount until so applied shall be commingled
with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, the making of the Interest Advance as requested by this Notice of
Borrowing shall automatically reduce, subject to reinstatement in accordance
with the terms of the Liquidity Agreement, the Maximum Available Commitment by
an amount equal to the amount of the Interest Advance requested to be made
hereby as set forth in clause (i) of paragraph (3) of this Notice of Borrowing
and such reduction shall automatically result in corresponding reductions in
the amounts available to be borrowed pursuant to a subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY,
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 Westdeutsche
Landesbank Girozentrale (the "Primary Liquidity Provider"), with reference to
the Revolving Credit Agreement (2002-1 C-1) dated as of August 5, 2002,
between the Borrower and the Primary 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 Primary Liquidity
Provider to be used for the funding of the Class C-1 Primary Cash
Collateral Account in accordance with Section 3.6(d) of the
Intercreditor Agreement, which Advance is requested to be made on
__________, ____. The Non-Extension Advance should be transferred to
[name of bank/wire instructions/ABA number] in favor of account
number [___], reference [___].
(3) The amount of the Non-Extension Advance requested hereby
(i) is $_______________.__, which equals the Maximum Available
Commitment on the date hereof and is to be applied in respect of the
funding of the Class C-1 Primary 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 Break Amount (if any), Prepayment Premium (if any)
or any other premium (if any) on, the Class C-1 Certificates, or
principal of, or interest or Break Amount (if any), Prepayment
Premium (if any) or any other premium (if any) on, the Class G-1
Certificates, the Class G-2 Certificates, the Class C-2 Certificates
or the Class D Certificates, if any, (iii) was computed in
accordance with the provisions of the Class C-1 Certificates, the
Class C-1 Trust Agreement and the Intercreditor Agreement (a copy of
which computation is attached hereto as Schedule I), and (iv) has
not been and is not the subject of a prior or contemporaneous Notice
of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the
Class C-1 Primary 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.
II-1
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 Primary Liquidity Provider to make further Advances
under the Liquidity Agreement; and (B) following the making by the
Primary 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 Westdeutsche
Landesbank Girozentrale (the "Primary Liquidity Provider"), with reference to
the Revolving Credit Agreement (2002-1 C-1) dated as of August 5, 2002,
between the Borrower and the Primary 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 Primary Liquidity Provider to
be used for the funding of the Class C-1 Primary 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 Primary 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 C-1 Primary 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 Break
Amount (if any), or Prepayment Premium (if any) or any premium on,
the Class C-1 Certificates, or principal of, or interest or Break
Amount (if any), or Prepayment Premium (if any) or any premium on,
the Class G-1 Certificates, the Class G-2 Certificates, the Class
C-2 Certificates or the Class D Certificates, (iii) was computed in
accordance with the provisions of the Class C-1 Certificates, the
Class C-1 Trust Agreement and the Intercreditor Agreement (a copy of
which computation is attached hereto as Schedule I), and (iv) has
not been and is not the subject of a prior or contemporaneous Notice
of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the
Class C-1 Primary 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.
III-1
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 Primary Liquidity Provider to make further Advances under the Liquidity
Agreement; and (B) following the making by the Primary 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:
III-2
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 Westdeutsche Landesbank
Girozentrale (the "Primary Liquidity Provider"), with reference to the
Revolving Credit Agreement (2002-1 C-1) dated as of August 5, 2002, between
the Borrower and the Primary 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 Primary Liquidity Provider to be
used for the funding of the Class C-1 Primary 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 Primary Liquidity Provider with respect to the
Liquidity Agreement, which Advance is requested to be made on
____________, ____. The Final Advance should be transferred to [name
of bank/wire instructions/ABA number] in favor of account number
[___], reference [____].
(3) The amount of the Final Advance requested hereby (i) is
$___________________, which equals the Maximum Available Commitment
on the date hereof and is to be applied in respect of the funding of
the Class C-1 Primary 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 Break
Amount (if any), Prepayment Premium (if any) or any other premium
(if any) on, the Class C-1 Certificates, or principal of, or
interest or Break Amount (if any), Prepayment Premium (if any) or
any other premium (if any) on, the Class G-1 Certificates, the Class
G-2 Certificates, the Class C-2 Certificates or the Class D
Certificates, (iii) was computed in accordance with the provisions
of the Class C-1 Certificates, the Class C-1 Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached
hereto as Schedule I), and (iv) has not been and is not the subject
of a prior or contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the
Class C-1 Primary 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
Primary Liquidity Provider to make further Advances under the Liquidity
Agreement; and (B) following the making by the Primary 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 (2002-1 C-1) dated as of August 5, 2002,
between STATE STREET BANK AND TRUST COMPANY, as Subordination Agent, as
Borrower, and WESTDEUTSCHE LANDESBANK 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,
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
as Primary Liquidity Provider
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
cc: State Street Bank and Trust Company of
Connecticut, National Association,
as Class C-1 Trustee
V-2
Annex VI to
Revolving Credit Agreement
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement (2002-1 C-1) dated as of August 5, 2002,
between State Street Bank and Trust Company, as Subordination Agent, as
Borrower, and Westdeutsche Landesbank Girozentrale (the "Liquidity
Agreement")
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
------------------------------
[Name of Transferee]
------------------------------
[Address of Transferee]
all rights and obligations of the undersigned as Borrower under the Liquidity
Agreement referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the first
paragraph of the Liquidity Agreement, pursuant to the terms of Section 8.1 of
the Intercreditor Agreement.
By this transfer, all rights of the undersigned as Borrower under
the Liquidity Agreement are transferred to the transferee and the transferee
shall hereafter have the sole rights and obligations as Borrower thereunder.
The undersigned shall pay any costs and expenses of such transfer, including,
but not limited to, transfer taxes or governmental charges.
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