EXHIBIT 4.5
EXECUTION
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REVOLVING CREDIT AGREEMENT(2001-1G)
Dated as of January 26, 2001
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
as Subordination Agent,
as agent and trustee for the
US Airways Pass Through Trust 2001-1G,
as Borrower
and
CITIBANK, N.A.,
as Liquidity Provider
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Relating to
US Airways Pass Through Trust 2001-1G
7.076% US Airways Pass Through Certificates,
Series 2001-1G
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.......................................................1
Section 1.01. Certain Defined Terms.............................1
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENT...............................7
Section 2.01. The Advances......................................7
Section 2.02. Making the Advances...............................7
Section 2.03. Fees..............................................9
Section 2.04. Reductions or Termination of the Maximum
Commitment........................................9
Section 2.05. Repayments of Interest Advances or the
Final Advance.................9
Section 2.06. Repayments of Provider Advances...................9
Section 2.07. Payments to the Liquidity Provider Under
the Intercreditor Agreement......................10
Section 2.08. Book Entries.....................................11
Section 2.09. Payments from Available Funds Only...............11
Section 2.10. Extension of the Expiry Date; Non-Extension
Advance..........................................11
ARTICLE III OBLIGATIONS OF THE BORROWER....................................12
Section 3.01. Increased Costs..................................12
Section 3.02. Capital Adequacy.................................13
Section 3.03. Payments Free of Deductions......................13
Section 3.05. Computations.....................................14
Section 3.06. Payment on Non-Business Days.....................14
Section 3.07. Interest.........................................14
Section 3.08. Replacement of Borrower..........................16
Section 3.09. Funding Loss Indemnification.....................16
Section 3.10. Illegality.......................................16
ARTICLE IV CONDITIONS PRECEDENT............................................16
Section 4.01. Conditions Precedent to Effectiveness of
Section 2.01.....................................16
Section 4.02. Conditions Precedent to Borrowing................18
ARTICLE V COVENANTS........................................................18
Section 5.01. Affirmative Covenants of the Borrower............18
Section 5.02. Negative Covenants of the Borrower...............19
ARTICLE VI LIQUIDITY EVENTS OF DEFAULT.....................................19
Section 6.01. Liquidity Events of Default......................19
ARTICLE VII MISCELLANEOUS..................................................20
Section 7.01. Amendments, Etc..................................20
Section 7.02. Notices, Etc.....................................20
Section 7.03. No Waiver; Remedies..............................21
Section 7.04. Further Assurances...............................21
Section 7.05. Indemnification; Survival of Certain Provisions..21
Section 7.06. Liability of the Liquidity Provider..............22
Section 7.07. Costs, Expenses and Taxes........................22
Section 7.08. Binding Effect; Participations...................23
Section 7.09. Severability.....................................24
Section 7.10. GOVERNING LAW....................................24
Section 7.11. Submission to Jurisdiction; Waiver of Jury
Trial; Waiver of Immunity........................24
Section 7.12. Execution in Counterparts........................25
Section 7.13. Entirety.........................................25
Section 7.14. Headings.........................................25
Section 7.15. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE
ADVANCES.........................................25
ANNEX I Interest Advance Notice of Borrowing
ANNEX II Non-Extension Advance Notice of Borrowing
ANNEX III Downgrade Advance Notice of Borrowing
ANNEX IV Final Advance Notice of Borrowing
ANNEX V Notice of Termination
ANNEX VI Notice of Replacement Subordination Agent
REVOLVING CREDIT AGREEMENT (2001-1G)
This REVOLVING CREDIT AGREEMENT (2001-1G) dated as of January
26, 2001, between STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity but solely as Subordination Agent under the Intercreditor
Agreement (each as defined below), as agent and trustee for the Class G
Trust (as defined below) (the "Borrower"), and CITIBANK, N.A., a national
banking association (the "Liquidity Provider").
W I T N E S S E T H:
WHEREAS, pursuant to the Class G Trust Agreement (such term and
all other capitalized terms used in these recitals having the meanings set
forth or referred to in Section 1.01), the Class G Trust is issuing the
Class G Certificates;
WHEREAS, the Borrower, in order to support the timely payment
of a portion of the interest on the Class G Certificates in accordance with
their terms, has requested the Liquidity Provider to enter into this
Agreement, providing in part for the Borrower to request in specified
circumstances that Advances be made hereunder; and
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms(a) Definitions. As used in
this Agreement and unless otherwise expressly indicated, or unless the
context clearly requires otherwise, the following capitalized terms shall
have the following respective meanings for all purposes of this Agreement:
"Additional Cost" has the meaning assigned to such term in
Section 3.01.
"Advance" means an Interest Advance, a Final Advance, a
Provider Advance, an Applied Provider Advance or an Unpaid Advance, as the
case may be.
"Applicable Liquidity Rate" has the meaning assigned to such
term in Section 3.07(f).
"Applicable Margin" means (x) with respect to any Unpaid
Advance or Applied Provider Advance, 2.0% per annum and (y) with respect to
any Unapplied Provider Advance, the rate per annum specified in the
Liquidity Facility Fee Letter applicable to this Agreement.
"Applied Downgrade Advance" has the meaning assigned to such
term in Section 2.06(a).
"Applied Non-Extension Advance" has the meaning assigned to
such term in Section 2.06(a).
"Applied Provider Advance" has the meaning assigned to such
term in Section 2.06(a).
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to (a) the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by the Liquidity Provider from three Federal funds
brokers of recognized standing selected by it, plus (b) one quarter of one
percent (1/4 of 1%) per annum.
"Base Rate Advance" means an Advance that bears interest at a
rate based upon the Base Rate.
"Borrower" has the meaning assigned to such term in the recital
of parties to this Agreement.
"Borrowing" means the making of Advances requested by delivery
of a Notice of Borrowing.
"Business Day" means any day other than a Saturday or Sunday or
other day on which insurance companies or commercial banks in New York, New
York, or commercial banking institutions in Pittsburgh, Pennsylvania and in
the cities in which the Corporate Trust Office of the Subordination Agent
or any Loan Trustee or the fiscal agent of the Policy Provider or the
office of the Policy Provider are located are authorized or obligated by
law or executive order to close.
"Deposit Agreement" means the Deposit Agreement dated as of the
date hereof between First Security Bank, National Association, as Escrow
Agent and ABN AMRO Bank N.V., acting through its Chicago branch, as
Depositary, pertaining to the Class G Certificates, as the same may be
amended, modified or supplemented from time to time in accordance with the
terms thereof.
"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).
"Effective Date" has the meaning specified in Section 4.01. The
delivery of the certificate of the Liquidity Provider contemplated by
Section 4.01(e) shall be conclusive evidence that the Effective Date has
occurred.
"Excluded Taxes" means (i) taxes imposed on the overall net
income of the Liquidity Provider or of its Facility Office by the
jurisdiction where such Liquidity Provider's principal office or such
Facility Office is located, and (ii) Excluded Withholding Taxes.
"Excluded Withholding Taxes" means (i) withholding Taxes
imposed by the United States except to the extent that such United States
withholding Taxes are imposed as a result of any change in applicable law
(excluding from change in applicable law for this purpose a change in an
applicable treaty or other change in law affecting the applicability of a
treaty) after the date hereof, or in the case of a successor Liquidity
Provider (including a transferee of an Advance) or Facility Office, after
the date on which such successor Liquidity Provider obtains its interest or
on which the Facility Office is changed, and (ii) any withholding Taxes
imposed by the United States which are imposed or increased as a result of
the Liquidity Provider failing to deliver to the Borrower any certificate
or document (which certificate or document in the good faith judgment of
the Liquidity Provider it is legally entitled to provide) which is
reasonably requested by the Borrower to establish that payments under this
Agreement are exempt from (or entitled to a reduced rate of) withholding
Tax.
"Expenses" means liabilities, obligations, damages,
settlements, penalties, claims, actions, suits, costs, expenses, and
disbursements (including, without limitation, reasonable fees and
disbursements of legal counsel and costs of investigation), provided that
Expenses shall not include any Taxes.
"Expiry Date" means January 24, 2002, initially, or any date to
which the Expiry Date is extended pursuant to Section 2.10.
"Facility Office" means the Facility Office of the Liquidity
Provider presently located at New York, New York, or such other Facility
Office as the Liquidity Provider from time to time shall notify the
Borrower as its Facility Office hereunder; provided that the Liquidity
Provider shall not change its Facility Office to another Facility Office
outside the United States of America except in accordance with Section
3.01, 3.02 or 3.03 hereof.
"Final Advance" means an Advance made pursuant to Section
2.02(d).
"Intercreditor Agreement" means the Intercreditor Agreement
dated the date hereof, among the Class G Trustee, the Class C Trustee, the
Liquidity Provider, the Policy Provider and the Subordination Agent, as the
same may be amended, supplemented or otherwise modified from time to time
in accordance with its terms.
"Interest Advance" means an Advance made pursuant to Section
2.02(a).
"Interest Period" means, with respect to any LIBOR Advance,
each of the following periods:
(i) the period beginning on the third Business Day following
either (x) the Liquidity Provider's receipt of the
Notice of Borrowing for such LIBOR Advance or (y) the
date of the withdrawal of funds from the Class G Cash
Collateral Account for the purpose of paying interest on
the Class G Certificates as contemplated by Section
2.06(a) hereof and, in either case, ending on the next
Regular Distribution Date; and
(ii) each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the
next Regular Distribution Date;
provided, however, that if (x) the Final Advance shall have
been made, or (y) other outstanding Advances shall have been
converted into the Final Advance, then the Interest Periods
shall be successive periods of one month beginning on the third
Business Day following the Liquidity Provider's receipt of the
Notice of Borrowing for such Final Advance (in the case of
clause (x) above) or the Regular Distribution Date following
such conversion (in the case of clause (y) above).
"LIBOR Advance" means an Advance bearing interest at a rate
based upon the LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period:
(i) the rate per annum appearing on display page 3750
(British Bankers Association-LIBOR) of the Dow ▇▇▇▇▇
Markets Service (or any successor or substitute therefor
) at approximately 11:00 a.m. (London time) two Business
Days before the first day of such Interest Period, as
the rate for dollar deposits with a maturity comparable
to such Interest Period, or
(ii) if the rate calculated pursuant to clause (i) above is
not available, the average (rounded upwards, if
necessary, to the next 1/16 of 1%) of the rates per
annum at which deposits in dollars are offered for the
relevant Interest Period by three banks of recognized
standing selected by the Liquidity Provider in the
London interbank market at approximately 11:00 a.m.
(London time) two Business Days before the first day of
such Interest Period in an amount approximately equal to
the principal amount of the LIBOR Advance to which such
Interest Period is to apply and for a period comparable
to such Interest Period.
"Liquidity Event of Default" means the occurrence of either (a)
the Acceleration of all of the Equipment Notes (provided that, with respect
to the period prior to the Delivery Period Expiry Date, such Equipment
Notes have an aggregate outstanding principal balance in excess of
$250,000,000) or (b) a US Airways Bankruptcy Event.
"Liquidity Indemnitee" means (i) the Liquidity Provider, (ii)
the directors, officers, employees and agents of the Liquidity Provider,
and (iii) the successors and permitted assigns of the persons described in
clauses (i) and (ii).
"Liquidity Provider" has the meaning assigned to such term in
the recital of parties to this Agreement.
"Maximum Available Commitment" shall mean, subject to the
proviso contained in the third sentence of Section 2.02(a), at any time of
determination, (a) the Maximum Commitment at such time less (b) the
aggregate amount of each Interest Advance outstanding at such time;
provided that following a Provider Advance or a Final Advance, the Maximum
Available Commitment shall be zero.
"Maximum Commitment" means initially $48,617,108.58, as the
same may be reduced from time to time in accordance with Section 2.04(a).
"Non-Excluded Tax" has the meaning specified in Section 3.03.
"Non-Extension Advance" means an Advance made pursuant to
Section 2.02(b).
"Notice of Borrowing" has the meaning specified in Section
2.02(e).
"Notice of Replacement Subordination Agent" has the meaning
specified in Section 3.08.
"Performing Note Deficiency" means any time that less than 65%
of the then aggregate outstanding principal amount of all Equipment Notes
are Performing Equipment Notes.
"Prospectus Supplement" means the Prospectus Supplement dated
January 19, 2001 relating to the Certificates, as such Prospectus
Supplement may be amended or supplemented.
"Provider Advance" means a Downgrade Advance or a Non-Extension
Advance.
"Regulatory Change" has the meaning assigned to such term in
Section 3.01.
"Replenishment Amount" has the meaning assigned to such term in
Section 2.06(b).
"Required Amount" means, for any day, the sum of the aggregate
amount of interest, calculated at the rate per annum equal to the Stated
Interest Rate for the Class G Certificates, that would be payable on the
Class G Certificates on each of the three successive semiannual Regular
Distribution Dates immediately following such day or, if such day is a
Regular Distribution Date, on such day and the succeeding two semiannual
Regular Distribution Dates, in each case calculated on the basis of the
Pool Balance of the Class G Certificates on such day and without regard to
expected future payments of principal on the Class G Certificates.
Notwithstanding the above, in the event of any Policy Provider Election,
for purposes of the definition of the Required Amount, the Pool Balance
shall be deemed to be reduced by the amount (if positive) by which (a) the
then outstanding principal balance of each Series G Equipment Note in
respect of which such Policy Provider Election has been made shall exceed
(b) the amount of any Policy Drawings previously paid by the Policy
Provider in respect of principal on such Series G Equipment Note.
"Termination Date" means the earliest to occur of the
following: (i) the Expiry Date; (ii) the date on which the Borrower
delivers to the Liquidity Provider a certificate, signed by a Responsible
Officer of the Borrower, certifying that all of the Class G Certificates
have been paid in full (or provision has been made for such payment in
accordance with the Intercreditor Agreement and the Class G Trust
Agreement) or are otherwise no longer entitled to the benefits of this
Agreement; (iii) the date on which the Borrower delivers to the Liquidity
Provider a certificate, signed by a Responsible Officer of the Borrower,
certifying that a Replacement Liquidity Facility has been substituted for
this Agreement in full pursuant to Section 3.6(e) of the Intercreditor
Agreement; (iv) the fifth Business Day following the receipt by the
Borrower of a Termination Notice from the Liquidity Provider pursuant to
Section 6.01 hereof; and (v) the date on which no Advance is, or may
(including by reason of reinstatement as herein provided) become, available
for a Borrowing hereunder.
"Termination Notice" means the Notice of Termination
substantially in the form of Annex V to this Agreement.
"Transferee" has the meaning assigned to such term in Section
7.08(b).
"Unapplied Downgrade Advance" means any Downgrade Advance other
than an Applied Downgrade Advance.
"Unapplied Non-Extension Advance" means any Non-Extension
Advance other than an Applied Non-Extension Advance.
"Unapplied Provider Advance" means any Provider Advance other
than an Applied Provider Advance.
"Unpaid Advance" has the meaning assigned to such term in
Section 2.05.
(b) Terms Defined in the Intercreditor Agreement. For all
purposes of this Agreement, the following terms shall have the respective
meanings assigned to such terms in the Intercreditor Agreement:
"Acceleration", "Certificates", "Class C Certificates", "Class
G Cash Collateral Account", "Class G Certificateholders", "Class G
Certificates", "Class G Trust", "Class G Trust Agreement", "Class G
Trustee", "Closing Date", "Controlling Party", "Corporate Trust Office",
"Delivery Period Expiry Date"- "Distribution Date", "Downgraded Facility",
"Equipment Notes", "Final Legal Distribution Date", "Financing Agreement",
"Indenture", "Interest Payment Date", "Investment Earnings", "Leased
Aircraft", "Liquidity Facility", "Liquidity Facility Fee Letter",
"Liquidity Obligations", "Loan Trustee", "▇▇▇▇▇'▇", "Non-Extended
Facility", "Note Purchase Agreement", "Operative Agreements", "Owned
Aircraft", "Participation Agreement", "Performing Equipment Note",
"Person", "Policy Drawings", "Policy Provider", "Policy Provider Election",
"Pool Balance", "Rating Agency", "Ratings Confirmation", "Regular
Distribution Date", "Replacement Liquidity Facility", "Responsible
Officer", "Scheduled Payment", "Series G Equipment Note", "Special
Payment", "Standard & Poor's", "Stated Interest Rate", "Subordination
Agent", "Taxes", "Threshold Rating", "Trustee", "Underwriters",
"Underwriting Agreement", "US Airways", "US Airways Bankruptcy Event" and
"Written Notice".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The AdvancesThe Liquidity Provider hereby
irrevocably agrees, on the terms and conditions hereinafter set forth, to
make Advances to the Borrower from time to time on any Business Day during
the period from the Effective Date until 1:00 p.m. (New York City time) on
the Expiry Date (unless the obligations of the Liquidity Provider shall be
earlier terminated in accordance with the terms of Section 2.04(b)) in an
aggregate amount at any time outstanding not to exceed the Maximum
Commitment.
Section 2.02. Making the Advances(a) Interest Advances shall be
made in one or more Borrowings by delivery to the Liquidity Provider of one
or more written and completed Notices of Borrowing in substantially the
form of Annex I attached hereto, signed by a Responsible Officer of the
Borrower, in an amount not exceeding the Maximum Available Commitment at
such time and shall be used solely for the payment when due of interest on
the Class G Certificates at the Stated Interest Rate therefor in accordance
with Section 3.6(a) of the Intercreditor Agreement. Each Interest Advance
made hereunder shall automatically reduce the Maximum Available Commitment
and the amount available to be borrowed hereunder by subsequent Advances by
the amount of such Interest Advance (subject to reinstatement as provided
in the next sentence). Upon repayment to the Liquidity Provider of all or
any part of the amount of any Interest Advance made pursuant to this
Section 2.02(a), together with accrued interest thereon (as provided
herein), the Maximum Available Commitment shall be reinstated by the amount
of such repaid Interest Advance, but not to exceed the Maximum Commitment;
provided, however, that the Maximum Available Commitment shall not be so
reinstated at any time if (i) a Liquidity Event of Default shall have
occurred and be continuing and (ii) there is a Performing Note Deficiency.
(b) A Non-Extension Advance shall be made in a single Borrowing
if this Agreement is not extended in accordance with Section 3.6(d) of the
Intercreditor Agreement (unless a Replacement Liquidity Facility to replace
this Agreement shall have been delivered to the Borrower as contemplated by
said Section 3.6(d) within the time period specified in such Section) by
delivery to the Liquidity Provider of a written and completed Notice of
Borrowing in substantially the form of Annex II attached hereto, signed by
a Responsible Officer of the Borrower, in an amount equal to the Maximum
Available Commitment at such time, and shall be used to fund the Class G
Cash Collateral Account in accordance with said Section 3.6(d) and Section
3.6(f) of the Intercreditor Agreement.
(c) A Downgrade Advance shall be made in a single Borrowing
upon a downgrading of the Liquidity Provider's short-term unsecured debt
rating issued by either Rating Agency below the applicable Threshold Rating
as provided for in Section 3.6(c) of the Intercreditor Agreement unless a
Replacement Liquidity Facility to replace this Agreement shall have been
previously delivered to the Borrower in accordance with said Section 3.6(c)
and within the time period specified in such Section, by delivery to the
Liquidity Provider of a written and completed Notice of Borrowing in
substantially the form of Annex III attached hereto, signed by a
Responsible Officer of the Borrower, in an amount equal to the Maximum
Available Commitment at such time, and shall be used to fund the Class G
Cash Collateral Account in accordance with said Section 3.6(c) and Section
3.6(f) of the Intercreditor Agreement.
(d) A Final Advance shall be made in a single Borrowing upon
the receipt by the Borrower of a Termination Notice from the Liquidity
Provider pursuant to Section 6.01 hereof by delivery to the Liquidity
Provider of a written and completed Notice of Borrowing in substantially
the form of Annex IV attached hereto, signed by a Responsible Officer of
the Borrower, in an amount equal to the Maximum Available Commitment at
such time, and shall be used to fund the Class G Cash Collateral Account in
accordance with Section 3.6(i) and Section 3.6(f) of the Intercreditor
Agreement.
(e) Each Borrowing shall be made on notice in writing (a
"Notice of Borrowing") in substantially the form required by Section
2.02(a), 2.02(b), 2.02(c) or 2.02(d), as the case may be, given by the
Borrower to the Liquidity Provider. If a Notice of Borrowing is delivered
by the Borrower in respect of any Borrowing no later than 1:00 p.m. (New
York City time) on a Business Day, upon satisfaction of the conditions
precedent set forth in Section 4.02 with respect to a requested Borrowing,
the Liquidity Provider shall make available to the Borrower, in accordance
with its payment instructions, the amount of such Borrowing in U.S. dollars
and immediately available funds, before 4:00 p.m. (New York City time) on
such Business Day or on such later Business Day specified in such Notice of
Borrowing. If a Notice of Borrowing is delivered by the Borrower in respect
of any Borrowing after 1:00 p.m. (New York City time) on a Business Day,
upon satisfaction of the conditions precedent set forth in Section 4.02
with respect to a requested Borrowing, the Liquidity Provider shall make
available to the Borrower, in accordance with its payment instructions, the
amount of such Borrowing in U.S. dollars and in immediately available
funds, before 12:00 noon (New York City time) on the first Business Day
next following the day of receipt of such Notice of Borrowing or on such
later Business Day specified by the Borrower in such Notice of Borrowing.
Payments of proceeds of a Borrowing shall be made by wire transfer of
immediately available funds to the Borrower in accordance with such wire
transfer instructions as the Borrower shall furnish from time to time to
the Liquidity Provider for such purpose. Each Notice of Borrowing shall be
irrevocable and binding on the Borrower.
(f) Upon the making of any Advance requested pursuant to a
Notice of Borrowing, in accordance with the Borrower's payment
instructions, the Liquidity Provider shall be fully discharged of its
obligation hereunder with respect to such Notice of Borrowing, and the
Liquidity Provider shall not thereafter be obligated to make any further
Advances hereunder in respect of such Notice of Borrowing to the Borrower
or to any other Person. If the Liquidity Provider makes an Advance
requested pursuant to a Notice of Borrowing before 12:00 noon (New York
City time) on the second Business Day after the date of payment specified
in said Section 2.02(e), the Liquidity Provider shall have fully discharged
its obligations hereunder with respect to such Advance and an event of
default shall not have occurred hereunder. Following the making of any
Advance pursuant to Section 2.02(b), (c) or (d) hereof to fund the Class G
Cash Collateral Account, the Liquidity Provider shall have no interest in
or rights to the Class G Cash Collateral Account, such Advance or any other
amounts from time to time on deposit in the Class G Cash Collateral
Account; provided that the foregoing shall not affect or impair the
obligations of the Subordination Agent to make the distributions
contemplated by Section 3.6(e) or (f) of the Intercreditor Agreement. By
paying to the Borrower proceeds of Advances requested by the Borrower in
accordance with the provisions of this Agreement, the Liquidity Provider
makes no representation as to, and assumes no responsibility for, the
correctness or sufficiency for any purpose of the amount of the Advances so
made and requested.
Section 2.03. FeesThe Borrower agrees to pay to the Liquidity
Provider the fees set forth in the Liquidity Facility Fee Letter applicable
to this Agreement.
Section 2.04. Reductions or Termination of the Maximum
Commitment.
(a) Automatic Reduction. Promptly following each date on which
the Required Amount is reduced as a result of a reduction in the Pool
Balance of the Class G Certificates or otherwise, the Maximum Commitment
shall automatically be reduced to an amount equal to such reduced Required
Amount (as calculated by the Borrower). The Borrower shall give notice of
any such automatic reduction of the Maximum Commitment to the Liquidity
Provider within two Business Days thereof. The failure by the Borrower to
furnish any such notice shall not affect such automatic reduction of the
Maximum Commitment.
(b) Termination. Upon the making of any Provider Advance or
Final Advance hereunder or the occurrence of the Termination Date, the
obligation of the Liquidity Provider to make further Advances hereunder
shall automatically and irrevocably terminate, and the Borrower shall not
be entitled to request any further Borrowing hereunder.
Section 2.05. Repayments of Interest Advances or the Final
AdvanceSubject to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby
agrees, without notice of an Advance or demand for repayment from the
Liquidity Provider (which notice and demand are hereby waived by the
Borrower), to pay, or to cause to be paid, to the Liquidity Provider on
each date on which the Liquidity Provider shall make an Interest Advance or
the Final Advance, an amount equal to (a) the amount of such Advance (any
such Advance, until repaid, is referred to herein as an "Unpaid Advance"),
plus (b) interest on the amount of each such Unpaid Advance as provided in
Section 3.07 hereof; provided that if (i) the Liquidity Provider shall make
a Provider Advance at any time after making one or more Interest Advances
which shall not have been repaid in accordance with this Section 2.05 or
(ii) this Liquidity Facility shall become a Downgraded Facility or
Non-Extended Facility at any time when unreimbursed Interest Advances have
reduced the Maximum Available Commitment to zero, then such Interest
Advances shall cease to constitute Unpaid Advances and shall be deemed to
have been changed into an Applied Downgrade Advance or an Applied
Non-Extension Advance, as the case may be, for all purposes of this
Agreement (including, without limitation, for the purpose of determining
when such Interest Advance is required to be repaid to the Liquidity
Provider in accordance with Section 2.06 and for the purposes of Section
2.06(b)). The Borrower and the Liquidity Provider agree that the repayment
in full of each Interest Advance and Final Advance on the date such Advance
is made is intended to be a contemporaneous exchange for new value given to
the Borrower by the Liquidity Provider.
Section 2.06. Repayments of Provider Advances(a) Amounts
advanced hereunder in respect of a Provider Advance shall be deposited in
the Class G Cash Collateral Account, invested and withdrawn from the Class
G Cash Collateral Account as set forth in Sections 3.6(c), (d) and (f) of
the Intercreditor Agreement. The Borrower agrees to pay to the Liquidity
Provider, on each Regular Distribution Date, commencing on the first
Regular Distribution Date after the making of a Provider Advance, interest
on the principal amount of any such Provider Advance as provided in Section
3.07 hereof; provided, however, that amounts in respect of a Provider
Advance withdrawn from the Class G Cash Collateral Account for the purpose
of paying interest on the Class G Certificates in accordance with Section
3.6(f) of the Intercreditor Agreement (the amount of any such withdrawal
being (y) in the case of a Downgrade Advance, an "Applied Downgrade
Advance" and (z) in the case of a Non-Extension Advance, an "Applied
Non-Extension Advance" and, together with an Applied Downgrade Advance, an
"Applied Provider Advance") shall thereafter (subject to Section 2.06(b))
be treated as an Interest Advance under this Agreement for purposes of
determining the Applicable Liquidity Rate for interest payable thereon;
provided further, however, that if, following the making of a Provider
Advance, the Liquidity Provider delivers a Termination Notice to the
Borrower pursuant to Section 6.01 hereof, such Provider Advance shall
thereafter be treated as a Final Advance under this Agreement for purposes
of determining the Applicable Liquidity Rate for interest payable thereon.
Subject to Sections 2.07 and 2.09 hereof, immediately upon the withdrawal
of any amounts from the Class G Cash Collateral Account on account of a
reduction in the Required Amount, the Borrower shall repay to the Liquidity
Provider a portion of the Provider Advances in a principal amount equal to
such reduction, plus interest on the principal amount prepaid as provided
in Section 3.07 hereof.
(b) At any time when an Applied Provider Advance (or any
portion thereof) is outstanding, upon the deposit in the Class G Cash
Collateral Account of any amount pursuant to clause "third" of Section
2.4(b) of the Intercreditor Agreement, clause "third" of Section 3.2 of the
Intercreditor Agreement or clause "fourth" of Section 3.3 of the
Intercreditor Agreement (any such amount being a "Replenishment Amount")
for the purpose of replenishing or increasing the balance thereof up to the
Required Amount at such time, (i) the aggregate outstanding principal
amount of all Applied Provider Advances (and of Provider Advances treated
as an Interest Advance for purposes of determining the Applicable Liquidity
Rate for interest payable thereon) shall be automatically reduced by the
amount of such Replenishment Amount and (ii) the aggregate outstanding
principal amount of all Unapplied Provider Advances shall be automatically
increased by the amount of such Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity Facility in
replacement of this Agreement in accordance with Section 3.6(e) of the
Intercreditor Agreement, amounts remaining on deposit in the Class G Cash
Collateral Account after giving effect to any Applied Provider Advance on
the date of such replacement shall be reimbursed to the Liquidity Provider,
but only to the extent such amounts are necessary to repay in full to the
Liquidity Provider all amounts owing to it hereunder.
Section 2.07. Payments to the Liquidity Provider Under the
Intercreditor AgreementIn order to provide for payment or repayment to the
Liquidity Provider of any amounts hereunder, the Intercreditor Agreement
provides that amounts available and referred to in Articles II and III of
the Intercreditor Agreement, to the extent payable to the Liquidity
Provider pursuant to the terms of the Intercreditor Agreement (including,
without limitation, Section 3.6(f) of the Intercreditor Agreement), shall
be paid to the Liquidity Provider in accordance with the terms thereof.
Amounts so paid to the Liquidity Provider shall be applied by the Liquidity
Provider to Liquidity Obligations then due and payable in accordance with
the Intercreditor Agreement or, if not provided for in the Intercreditor
Agreement, then in such manner as the Liquidity Provider shall deem
appropriate.
Section 2.08. Book EntriesThe Liquidity Provider shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower resulting from Advances made from time to time
and the amounts of principal and interest payable hereunder and paid from
time to time in respect thereof; provided, however, that the failure by the
Liquidity Provider to maintain such account or accounts shall not affect
the obligations of the Borrower in respect of Advances.
Section 2.09. Payments from Available Funds OnlyAll payments to
be made by the Borrower under this Agreement shall be made only from the
amounts that constitute Scheduled Payments, Special Payments or payments
under Section 6(c) or 6(b), as the case may be, of the Participation
Agreements and Section 7 of the Note Purchase Agreement and only to the
extent that the Borrower shall have sufficient income or proceeds therefrom
to enable the Borrower to make payments in accordance with the terms hereof
after giving effect to the priority of payments provisions set forth in the
Intercreditor Agreement. The Liquidity Provider agrees that it will look
solely to such amounts to the extent available for distribution to it as
provided in the Intercreditor Agreement and this Agreement and that the
Borrower, in its individual capacity, is not personally liable to it for
any amounts payable or liability under this Agreement except as expressly
provided in this Agreement, the Intercreditor Agreement or any
Participation Agreement. Amounts on deposit in the Class G Cash Collateral
Account shall be available to the Borrower to make payments under this
Agreement only to the extent and for the purposes expressly contemplated in
Section 3.6(f) of the Intercreditor Agreement.
Section 2.10. Extension of the Expiry Date; Non-Extension
Advance. No earlier than the 45th day and no later than the 30th day prior
to the then effective Expiry Date (unless such Expiry Date is on or after
the date that is 15 days after the Final Legal Distribution Date for the
Class G Certificates), the Borrower shall request that the Liquidity
Provider extend the Expiry Date to the earlier of (i) the date that is 15
days after the Final Legal Distribution Date for the Class G Certificates
and (ii) the date that is the day immediately preceding the 364th day
occurring after the then effective Expiry Date (unless the obligations of
the Liquidity Provider are earlier terminated in accordance with the terms
hereof). No earlier than the 90th day prior to the then Expiry Date and no
later than the 45th day prior to such Expiry Date, the Liquidity Provider
shall notify the Borrower of such Expiry Date (provided that failure to
give such notice shall not release the Borrower from any of its obligations
hereunder nor shall such failure constitute, or be deemed to constitute, an
extension of such Expiry Date). Whether or not the Borrower has made such
request, the Liquidity Provider may, but is not obligated to, advise the
Borrower, no earlier than 30 days and no later than 20 days prior to the
then effective Expiry Date, whether, in its sole discretion, it agrees to
so extend the Expiry Date. If the Liquidity Provider advises the Borrower
on or before the 20th day prior to the Expiry Date then in effect that such
Expiry Date shall not be so extended, or does not irrevocably and
unconditionally advise the Borrower on or before the 20th day prior to the
Expiry Date then in effect that such Expiry Date shall be so extended (and,
in each case, if the Liquidity Provider shall not have been replaced in
accordance with Section 3.6(e) of the Intercreditor Agreement), such Expiry
Date shall not be extended and the Borrower shall be entitled on and after
such 20th day (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.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs. The Borrower shall pay to the
Liquidity Provider from time to time such amounts as may be necessary to
compensate the Liquidity Provider for any increased costs incurred by the
Liquidity Provider which are attributable to its making or maintaining any
LIBOR Advances hereunder or its obligation to make any such Advances
hereunder, or any reduction in any amount receivable by the Liquidity
Provider under this Agreement or the Intercreditor Agreement in respect of
any such Advances or such obligation (such increases in costs and
reductions in amounts receivable being herein called "Additional Costs"),
resulting from any change after the date of this Agreement in U.S. federal,
state, municipal, or foreign laws or regulations (including Regulation D of
the Board of Governors of the Federal Reserve System), or the adoption or
making after the date of this Agreement of any interpretations, directives,
or requirements applying to a class of banks including the Liquidity
Provider under any U.S. federal, state, municipal, or any foreign laws or
regulations (whether or not having the force of law) by any court, central
bank or monetary authority charged with the interpretation or
administration thereof (a "Regulatory Change"), which: (1) changes the
basis of taxation of any amounts payable to the Liquidity Provider under
this Agreement in respect of any such Advances (other than Excluded Taxes);
or (2) imposes or modifies any reserve, special deposit, compulsory loan or
similar requirements relating to any extensions of credit or other assets
of, or any deposits with other liabilities of, the Liquidity Provider
(including any such Advances or any deposits referred to in the definition
of LIBOR Rate or related definitions). The Liquidity Provider agrees to use
reasonable efforts (consistent with applicable legal and regulatory
restrictions) to change the jurisdiction of its Facility Office if making
such change would avoid the need for, or reduce the amount of, any amount
payable under this Section that may thereafter accrue and would not, in the
reasonable judgment of the Liquidity Provider, be otherwise disadvantageous
to the Liquidity Provider.
The Liquidity Provider will notify the Borrower of any event
occurring after the date of this Agreement that will entitle the Liquidity
Provider to compensation pursuant to this Section 3.01 as promptly as
practicable after it obtains knowledge thereof and determines to request
such compensation, which notice shall describe in reasonable detail the
calculation of the amounts owed under this Section. Determinations by the
Liquidity Provider for purposes of this Section 3.01 of the effect of any
Regulatory Change on its costs of making or maintaining Advances or on
amounts receivable by it in respect of Advances, and of the additional
amounts required to compensate the Liquidity Provider in respect of any
Additional Costs, shall be prima facie evidence of the amount owed under
this Section.
Notwithstanding the preceding two paragraphs, the Liquidity
Provider and the Borrower agree that any permitted assignee or participant
of the initial Liquidity Provider which is not a bank shall not be entitled
to the benefits of the preceding two paragraphs (but without limiting the
provisions of Section 7.08 hereof).
Section 3.02. Capital Adequacy. If (1) the adoption, after the
date hereof, of any applicable governmental law, rule or regulation
regarding capital adequacy, (2) any change, after the date hereof, in the
interpretation or administration of any such law, rule or regulation by any
central bank or other governmental authority charged with the
interpretation or administration thereof or (3) compliance by the Liquidity
Provider or any corporation controlling the Liquidity Provider with any
applicable guideline or request of general applicability, issued after the
date hereof, by any central bank or other governmental authority (whether
or not having the force of law) that constitutes a change of the nature
described in clause (2), has the effect of requiring an increase in the
amount of capital required to be maintained by the Liquidity Provider or
any corporation controlling the Liquidity Provider, and such increase is
based upon the Liquidity Provider's obligations hereunder and other similar
obligations, the Borrower shall pay to the Liquidity Provider from time to
time such additional amount or amounts as are necessary to compensate the
Liquidity Provider for such portion of such increase as shall be reasonably
allocable to the Liquidity Provider's obligations to the Borrower
hereunder. The Liquidity Provider agrees to use reasonable efforts
(consistent with applicable legal and regulatory restrictions) to change
the jurisdiction of its Facility Office if making such change would avoid
the need for, or reduce the amount of, any amount payable under this
Section that may thereafter accrue and would not, in the reasonable
judgment of the Liquidity Provider, be otherwise materially disadvantageous
to the Liquidity Provider.
The Liquidity Provider will notify the Borrower of any event
occurring after the date of this Agreement that will entitle the Liquidity
Provider to compensation pursuant to this Section 3.02 as promptly as
practicable after it obtains knowledge thereof and determines to request
such compensation, which notice shall describe in reasonable detail the
calculation of the amounts owed under this Section. Determinations by the
Liquidity Provider for purposes of this Section 3.02 of the effect of any
increase in the amount of capital required to be maintained by the
Liquidity Provider and of the amount allocable to the Liquidity Provider's
obligations to the Borrower hereunder shall be prima facie evidence of the
amounts owed under this Section.
Notwithstanding the preceding two paragraphs, the Liquidity
Provider and the Borrower agree that any permitted assignee or participant
of the initial Liquidity Provider which is not a bank shall not be entitled
to the benefits of the preceding two paragraphs (but without limiting the
provisions of Section 7.08 hereof).
Section 3.03. Payments Free of Deductions(a) All payments made
by the Borrower under this Agreement shall be made free and clear of, and
without reduction for or on account of, any present or future stamp or
other taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, restrictions or conditions of any nature whatsoever now or
hereafter imposed, levied, collected, withheld or assessed, excluding
Excluded Taxes (such non-excluded taxes being referred to herein,
collectively, as "Non-Excluded Taxes" and, individually, as a "Non-Excluded
Tax"). If any Non-Excluded Taxes are required to be withheld from any
amounts payable to the Liquidity Provider under this Agreement, the amounts
so payable to the Liquidity Provider shall be increased to the extent
necessary to yield to the Liquidity Provider (after payment of all
Non-Excluded Taxes and taxes imposed on the receipt of such increase)
interest or any other such amounts payable under this Agreement at the
rates or in the amounts specified in this Agreement. The Liquidity Provider
agrees to use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to change the jurisdiction of its
Facility Office if making such change would avoid the need for, or reduce
the amount of, any such additional amounts that may thereafter accrue and
would not, in the reasonable judgment of the Liquidity Provider, be
otherwise disadvantageous to the Liquidity Provider. From time to time upon
the reasonable request of the Borrower, if the Liquidity Provider is not
organized under the laws of the United States or any State thereof, the
Liquidity Provider agrees to provide to the Borrower two original Internal
Revenue Service Form W-8BEN or W-8ECI, as appropriate, or any successor or
other form prescribed by the Internal Revenue Service, certifying that the
Liquidity Provider is exempt from or entitled to a reduced rate of United
States withholding tax on payments pursuant to this Agreement.
(b) If any exemption from, or reduction in the rate of, any
Taxes is reasonably available to the Borrower to establish that payments
under this Agreement are exempt from (or entitled to a reduced rate of)
Tax, the Borrower shall deliver to the Liquidity Provider such form or
forms and such other evidence of the eligibility of the Borrower for such
exemption or reduction as the Liquidity Provider may reasonably identify to
the Borrower as being required as a condition to exemption from, or
reduction in the rate of, any Taxes.
Section 3.04. Payments. The Borrower shall make or cause to be
made each payment to the Liquidity Provider under this Agreement so as to
cause the same to be received by the Liquidity Provider not later than 1:00
p.m. (New York City time) on the day when due. The Borrower shall make all
such payments in lawful money of the United States of America, to the
Liquidity Provider in immediately available funds, by wire transfer to the
account of Citibank, N.A. at Citibank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, ABA #▇▇▇▇▇▇▇▇▇, Account #4063-2387, Reference: US Airways Pass
Through Trust, Series 2001-1G, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇.
Section 3.05. Computations. All computations of interest based
on the Base Rate shall be made on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the LIBOR
Rate shall be made on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest is payable.
Section 3.06. Payment on Non-Business Days. Whenever any
payment to be made hereunder shall be stated to be due on a day other than
a Business Day, such payment shall be made on the next succeeding Business
Day and no additional interest shall be due as a result (and if so made,
shall be deemed to have been made when due). If any payment in respect of
interest on an Advance is so deferred to the next succeeding Business Day,
such deferral shall not delay the commencement of the next Interest Period
for such Advance (if such Advance is a LIBOR Advance) or reduce the number
of days for which interest will be payable on such Advance on the next
interest payment date for such Advance.
Section 3.07. Interest. (a) Subject to Section 2.09, the
Borrower shall pay, or shall cause to be paid, without duplication,
interest on (i) the unpaid principal amount of each Advance from and
including the date of such Advance (or, in the case of an Applied Provider
Advance, from and including the date on which the amount thereof was
withdrawn from the Class G Cash Collateral Account to pay interest on the
Class G Certificates) to but excluding the date such principal amount shall
be paid in full (or, in the case of an Applied Provider Advance, the date
on which the Class G Cash Collateral Account is fully replenished in
respect of such Advance) and (ii) any other amount due hereunder (whether
fees, commissions, expenses or other amounts or, to the extent permitted by
law, installments of interest on Advances or any such other amount) which
is not paid when due (whether at stated maturity, by acceleration or
otherwise) from and including the due date thereof to but excluding the
date such amount is paid in full, in each such case, at a fluctuating
interest rate per annum for each day equal to the Applicable Liquidity Rate
(as defined below) for such Advance or such other amount as in effect for
such day, but in no event at a rate per annum greater than the maximum rate
permitted by applicable law; provided, however, that, if at any time the
otherwise applicable interest rate as set forth in this Section 3.07 shall
exceed the maximum rate permitted by applicable law, then any subsequent
reduction in such interest rate will not reduce the rate of interest
payable pursuant to this Section 3.07 below the maximum rate permitted by
applicable law until the total amount of interest accrued equals the amount
of interest that would have accrued if such otherwise applicable interest
rate as set forth in this Section 3.07 had at all times been in effect.
(b) Each Advance (including, without limitation, each
outstanding Unapplied Provider Advance) will be either a Base Rate Advance
or a LIBOR Advance as provided in this Section. Each such Advance will be a
Base Rate Advance for the period from the date of its borrowing to (but
excluding) the third Business Day following the Liquidity Provider's
receipt of the Notice of Borrowing for such Advance. Thereafter, such
Advance shall be a LIBOR Advance; provided that the Borrower (at the
direction of the Controlling Party, so long as the Liquidity Provider is
not the Controlling Party) may (x) convert the Final Advance into a Base
Rate Advance on the last day of an Interest Period for such Advance by
giving the Liquidity Provider no less than four Business Days' prior
written notice of such election or (y) elect to maintain the Final Advance
as a Base Rate Advance by not requesting a conversion of the Final Advance
to a LIBOR Advance under Clause (5) of the applicable Notice of Borrowing
(or, if such Final Advance is deemed to have been made, without delivery of
a Notice of Borrowing pursuant to Section 2.06, by requesting, prior to
11:00 a.m. on the first Business Day immediately following the Borrower's
receipt of the applicable Termination Notice, that such Final Advance not
be converted from a Base Rate Advance to a LIBOR Advance).
(c) Each LIBOR Advance shall bear interest during each Interest
Period at a rate per annum equal to the LIBOR Rate for such Interest Period
plus the Applicable Margin for such LIBOR Advance, payable in arrears on
the last day of such Interest Period and, in the event of the payment of
principal of such LIBOR Advance on a day other than such last day, on the
date of such payment (to the extent of interest accrued on the amount of
principal repaid).
(d) Each Base Rate Advance shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin for such Base Rate
Advance, payable in arrears on each Regular Distribution Date and, in the
event of the payment of principal of such Base Rate Advance on a day other
than a Regular Distribution Date, on the date of such payment (to the
extent of interest accrued on the amount of principal repaid).
(e) Each amount not paid when due hereunder (whether fees,
commissions, expenses or other amounts or, to the extent permitted by
applicable law, installments of interest on Advances but excluding
Advances) shall bear interest at a rate per annum equal to the Base Rate
plus 2.00% until paid.
(f) Each change in the Base Rate shall become effective
immediately. The rates of interest specified in this Section 3.07 with
respect to any Advance or other amount shall be referred to as the
"Applicable Liquidity Rate".
Section 3.08. Replacement of Borrower. From time to time and
subject to the successor Borrower's meeting the eligibility requirements
set forth in Section 6.9 of the Intercreditor Agreement applicable to the
Subordination Agent, upon the effective date and time specified in a
written and completed Notice of Replacement Subordination Agent in
substantially the form of Annex VI attached hereto (a "Notice of
Replacement Subordination Agent") delivered to the Liquidity Provider by
the then Borrower, the successor Borrower designated therein shall be
substituted for as the Borrower for all purposes hereunder.
Section 3.09. Funding Loss Indemnification. The Borrower shall
pay to the Liquidity Provider, upon the request of the Liquidity Provider,
such amount or amounts as shall be sufficient (in the reasonable opinion of
the Liquidity Provider) to compensate it for any loss, cost, or expense
incurred by reason of the liquidation or redeployment of deposits or other
funds acquired by the Liquidity Provider to fund or maintain any LIBOR
Advance (but excluding loss of anticipated profits) incurred as a result
of:
(1) Any repayment of a LIBOR Advance on a date other than the
last day of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance on
the date for borrowing specified in the relevant notice under Section 2.02.
Section 3.10. Illegality. Notwithstanding any other provision
in this Agreement, if any change in any applicable law, rule or regulation,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Liquidity
Provider (or its Facility Office) with any request or directive (whether or
not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for the Liquidity
Provider (or its Facility Office) to maintain or fund its LIBOR Advances,
then upon notice to the Borrower by the Liquidity Provider, the outstanding
principal amount of the LIBOR Advances shall be converted to Base Rate
Advances (a) immediately upon demand of the Liquidity Provider, if such
change or compliance with such request, in the judgment of the Liquidity
Provider, requires immediate repayment; or (b) at the expiration of the
last Interest Period to expire before the effective date of any such change
or request.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section
2.01Section 2.01 of this Agreement shall become effective on and as of the
first date (the "Effective Date") on which the following conditions
precedent have been satisfied or waived:
(a) The Liquidity Provider shall have received on or before the
Closing Date each of the following, and in the case of each document
delivered pursuant to paragraphs (i), (ii) and (iii), each in form and
substance satisfactory to the Liquidity Provider:
(i) This Agreement duly executed on behalf of the
Borrower;
(ii) The Intercreditor Agreement duly executed on behalf
of each of the parties thereto;
(iii) Fully executed copies of each of the Operative
Agreements executed and delivered on or before the
Closing Date (other than this Agreement and the
Intercreditor Agreement);
(iv) A copy of the Prospectus Supplement and specimen
copies of the Class G Certificates;
(v) An executed copy of each document, instrument,
certificate and opinion delivered on or before the
Closing Date pursuant to the Class G Trust
Agreement, the Intercreditor Agreement and the other
Operative Agreements (in the case of each such
opinion, other than the opinion of counsel for the
Underwriters, either addressed to the Liquidity
Provider or accompanied by a letter from the counsel
rendering such opinion to the effect that the
Liquidity Provider is entitled to rely on such
opinion as of its date as if it were addressed to
the Liquidity Provider);
(vi) Evidence that there shall have been made and shall
be in full force and effect, all filings, recordings
and/or registrations, and there shall have been
given or taken any notice or other similar action as
may be reasonably necessary or, to the extent
reasonably requested by the Liquidity Provider,
reasonably advisable, in order to establish,
perfect, protect and preserve the right, title and
interest, remedies, powers, privileges, liens and
security interests of, or for the benefit of, the
Class G Trustee, the Borrower and the Liquidity
Provider created by the Operative Agreements
executed and delivered on or prior to the Closing
Date;
(vii) An agreement from US Airways, pursuant to which (i)
US Airways agrees to provide copies of quarterly
financial statements and audited annual financial
statements to the Liquidity Provider, and such other
information as the Liquidity Provider shall
reasonably request with respect to the transactions
contemplated by the Operative Agreements, in each
case, only to the extent that US Airways is
obligated to provide such information pursuant to
Section 16 of the Basic Lease or Section 7 of the
Special Leased Aircraft Participation Agreement
(related to Leased Aircraft) to the extent such
provisions require delivery of financial statements,
or the corresponding section of the Indentures
(related to Owned Aircraft) to the parties thereto
and (ii) US Airways agrees to allow the Liquidity
Provider to inspect US Airways' books and records
regarding such transactions, and to discuss such
transactions with officers and employees of US
Airways; and
(viii) Such other documents, instruments, opinions and
approvals pertaining to the transactions
contemplated hereby or by the other Operative
Agreements as the Liquidity Provider shall have
reasonably requested.
(b) The following statement shall be true on and as of the
Effective Date: no event has occurred and is continuing, or would result
from the entering into of this Agreement or the making of any Advance,
which constitutes a Liquidity Event of Default.
(c) The Liquidity Provider shall have received payment in full
of all fees and other sums required to be paid to or for the account of the
Liquidity Provider on or prior to the Effective Date.
(d) All conditions precedent to the issuance of the Class G
Certificates under the Class G Trust Agreement shall have been satisfied or
waived, and 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 Certificates by the
Underwriters under the Underwriting Agreement shall have been satisfied
(unless any of such conditions precedent shall have been waived by the
Underwriters).
(e) The Borrower shall have received a certificate, dated the
date hereof, signed by a duly authorized representative of the Liquidity
Provider, certifying that all conditions precedent to the effectiveness of
Section 2.01 have been satisfied or waived.
Section 4.02. Conditions Precedent to BorrowingThe obligation
of the Liquidity Provider to make an Advance on the occasion of each
Borrowing shall be subject to the conditions precedent that the Effective
Date shall have occurred and, prior to the date of such Borrowing, the
Borrower shall have delivered a Notice of Borrowing which conforms to the
terms and conditions of this Agreement and has been completed as may be
required by the relevant form of the Notice of Borrowing for the type of
Advances requested.
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the BorrowerSo long as
any Advance shall remain unpaid or the Liquidity Provider shall have any
Maximum Commitment hereunder or the Borrower shall have any obligation to
pay any amount to the Liquidity Provider hereunder, the Borrower will,
unless the Liquidity Provider shall otherwise consent in writing:
(a) Performance of This and Other Agreements. Punctually pay or
cause to be paid all amounts payable by it under this Agreement and the
other Operative Agreements and observe and perform in all material respects
the conditions, covenants and requirements applicable to it contained in
this Agreement and the other Operative Agreements.
(b) Reporting Requirements. Furnish to the Liquidity Provider
with reasonable promptness, such other information and data with respect to
the transactions contemplated by the Operative Agreements as from time to
time may be reasonably requested by the Liquidity Provider; and permit the
Liquidity Provider, upon reasonable notice, to inspect the Borrower's books
and records with respect to such transactions and to meet with officers and
employees of the Borrower to discuss such transactions.
(c) Certain Operative Agreements. Furnish to the Liquidity
Provider with reasonable promptness, such Operative Agreements entered into
after the date hereof as from time to time may be reasonably requested by
the Liquidity Provider.
Section 5.02. Negative Covenants of the BorrowerSo long as any
Advance shall remain unpaid or the Liquidity Provider shall have any
Maximum Commitment hereunder or the Borrower shall have any obligation to
pay any amount to the Liquidity Provider hereunder, the Borrower will not
appoint or permit or suffer to be appointed any successor Borrower without
the prior written consent of the Liquidity Provider, which consent shall
not be unreasonably withheld or delayed.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of DefaultIf (a) any Liquidity
Event of Default has occurred and is continuing and (b) there is a
Performing Note Deficiency, the Liquidity Provider may, in its discretion,
deliver to the Borrower a Termination Notice, the effect of which shall be
to cause (i) the obligation of the Liquidity Provider to make Advances
hereunder to expire on the fifth Business Day after the date on which such
Termination Notice is received by the Borrower, (ii) the Borrower to
promptly request, and the Liquidity Provider to promptly make, a Final
Advance in accordance with Section 2.02(d) hereof and Section 3.6(i) of the
Intercreditor Agreement, (iii) all other outstanding Advances to be
automatically converted into Final Advances for purposes of determining the
Applicable Liquidity Rate for interest payable thereon, and (iv) subject to
Sections 2.07 and 2.09 hereof, all Advances (including, without limitation,
any Provider Advance and Applied Provider Advance), any accrued interest
thereon and any other amounts outstanding hereunder to become immediately
due and payable to the Liquidity Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Liquidity Provider, and, in the case of an
amendment or of a waiver by the Borrower, the Borrower, and then such
waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
Section 7.02. Notices, Etc. Except as otherwise expressly
provided herein, all notices and other communications provided for
hereunder shall be in writing (including telecopier and mailed or delivered
or sent by telecopier):
Borrower: State Street Bank and Trust Company of
Connecticut, National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate/Muni. Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
State Street Bank and Trust Company
Corporate Trust Department
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Liquidity Provider: CITIBANK, N.A.
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Reference: US Airways Pass Through
Trust 2001-1G
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
CITIBANK, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇/▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇/3734
with a copy of any Notice of Borrowing to:
CITIBANK, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇/▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇/3734
or, as to each of the foregoing, at such other address as shall be
designated by such Person in a written notice to the others. All such
notices and communications shall be effective (i) if given by telecopier,
when transmitted to the telecopier number specified above and (ii) if given
by other means, when delivered at the address specified above, except that
written notices to the Liquidity Provider pursuant to the provisions of
Articles II and III hereof shall not be effective until received by the
Liquidity Provider. A copy of all notices delivered hereunder to either
party shall in addition be delivered to each of the parties to the
Participation Agreements at their respective addresses set forth therein.
Section 7.03. No Waiver; RemediesNo failure on the part of the
Liquidity Provider to exercise, and no delay in exercising, any right under
this Agreement shall operate as a waiver thereof; nor shall any single or
partial exercise of any right under this Agreement preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided
by law.
Section 7.04. Further AssurancesThe Borrower agrees to do such
further acts and things and to execute and deliver to the Liquidity
Provider such additional assignments, agreements, powers and instruments as
the Liquidity Provider may reasonably require or deem advisable to carry
into effect the purposes of this Agreement and the other Operative
Agreements or to better assure and confirm unto the Liquidity Provider its
rights, powers and remedies hereunder and under the other Operative
Agreements.
Section 7.05. Indemnification; Survival of Certain
ProvisionsThe Liquidity Provider shall be indemnified hereunder to the
extent and in the manner described in Section 6(c) of the Leased Aircraft
Participation Agreements, Section 6(b) of the Owned Aircraft Participation
Agreements or Section 7(c) of the Note Purchase Agreement, as the case may
be. In addition, the Borrower agrees to indemnify, protect, defend and hold
harmless the Liquidity Provider from, against and in respect of, and shall
pay on demand, all Expenses of any kind or nature whatsoever (other than
any Expenses of the nature described in Section 3.01, 3.02 or 7.07 hereof
or in the Liquidity Facility Fee Letter applicable to this Agreement
(regardless of whether indemnified against pursuant to said Sections or in
such Liquidity Facility 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 Liquidity Facility Fee Letter applicable to
this Agreement, the Intercreditor Agreement or any Financing Agreement;
provided, however, that the Borrower shall not be required to indemnify,
protect, defend and hold harmless any Liquidity Indemnitee in respect of
any Expense of such Liquidity Indemnitee to the extent such Expense is (i)
attributable to the gross negligence or willful misconduct of such
Liquidity Indemnitee or any other Liquidity Indemnitee, (ii) ordinary and
usual operating overhead expense, or (iii) attributable to the failure by
such Liquidity Indemnitee or any other Liquidity Indemnitee to perform or
observe any agreement, covenant or condition on its part to be performed or
observed in this Agreement, the Intercreditor Agreement, the Liquidity
Facility Fee Letter applicable to this Agreement or any other Operative
Agreement to which it is a party. The indemnities contained in Section 6(c)
of the Leased Aircraft Participation Agreements or 6(b) of the Owned
Aircraft Participation Agreements, as the case may be, and the provisions
of Sections 3.01, 3.02, 3.03, 3.09, 7.05 and 7.07 hereof, shall survive the
termination of this Agreement.
Section 7.06. Liability of the Liquidity Provider(a) Neither
the Liquidity Provider nor any of its officers, employees, directors or
Affiliates shall be liable or responsible for: (i) the use which may be
made of the Advances or any acts or omissions of the Borrower or any
beneficiary or transferee in connection therewith; (ii) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon,
even if such documents should prove to be in any or all respects invalid,
insufficient, fraudulent or forged; or (iii) the making of Advances by the
Liquidity Provider against delivery of a Notice of Borrowing and other
documents which do not comply with the terms hereof; provided, however,
that the Borrower shall have a claim against the Liquidity Provider, and
the Liquidity Provider shall be liable to the Borrower, to the extent of
any damages suffered by the Borrower which were the result of (A) the
Liquidity Provider's willful misconduct or negligence in determining
whether documents presented hereunder comply with the terms hereof, or (B)
any breach by the Liquidity Provider of any of the terms of this Agreement,
including, but not limited to, the Liquidity Provider's failure to make
lawful payment hereunder after the delivery to it by the Borrower of a
Notice of Borrowing strictly complying with the terms and conditions
hereof.
(b) Neither the Liquidity Provider nor any of its officers,
employees, directors or Affiliates shall be liable or responsible in any
respect for (i) any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with this Agreement or any Notice of Borrowing delivered
hereunder, or (ii) any action, inaction or omission which may be taken by
it in good faith, absent willful misconduct or negligence (in which event
the extent of the Liquidity Provider's potential liability to the Borrower
shall be limited as set forth in the immediately preceding paragraph), in
connection with this Agreement or any Notice of Borrowing.
Section 7.07. Costs, Expenses and TaxesThe Borrower agrees to
pay, or cause to be paid (A) on the Effective Date and on such later date
or dates on which the Liquidity Provider shall make demand, all reasonable
out-of-pocket costs and expenses (including, without limitation, the
reasonable fees and expenses of outside counsel for the Liquidity Provider)
of the Liquidity Provider in connection with the preparation, negotiation,
execution, delivery, filing and recording of this Agreement, any other
Operative Agreement and any other documents which may be delivered in
connection with this Agreement and (B) on demand, all reasonable costs and
expenses (including reasonable counsel fees and expenses) of the Liquidity
Provider in connection with (i) the enforcement of this Agreement or any
other Operative Agreement, (ii) the modification or amendment of, or
supplement to, this Agreement or any other Operative Agreement or such
other documents which may be delivered in connection herewith or therewith
(whether or not the same shall become effective) or (iii) any action or
proceeding relating to any order, injunction, or other process or decree
restraining or seeking to restrain the Liquidity Provider from paying any
amount under this Agreement, the Intercreditor Agreement or any other
Operative Agreement or otherwise affecting the application of funds in the
Class G Cash Collateral Account. In addition, the Borrower shall pay any
and all recording, stamp and other similar taxes and fees payable or
determined to be payable in connection with the execution, delivery, filing
and recording of this Agreement, any other Operative Agreement and such
other documents, and agrees to save the Liquidity Provider harmless from
and against any and all liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes or fees.
Section 7.08. Binding Effect; Participations(a) This Agreement
shall be binding upon and inure to the benefit of the Borrower and the
Liquidity Provider and their respective successors and assigns, except that
neither the Liquidity Provider (except as otherwise provided in this
Section 7.08) nor (except as contemplated by Section 3.08) the Borrower
shall have the right to assign its rights or obligations hereunder or any
interest herein without the prior written consent of the other party,
subject to the requirements of Section 7.08(b). The Liquidity Provider may
grant participations herein or in any of its rights hereunder (including,
without limitation, funded participations and participations in rights to
receive interest payments hereunder) and under the other Operative
Agreements to such Persons (other than US Airways or any of its affiliates)
as the Liquidity Provider may in its sole discretion select, subject to the
requirements of Section 7.08(b). No such participation by the Liquidity
Provider, however, will relieve the Liquidity Provider of its obligations
hereunder. In connection with any participation or any proposed
participation, the Liquidity Provider may disclose to the participant or
the proposed participant any information that the Borrower is required to
deliver or to disclose to the Liquidity Provider pursuant to this
Agreement. The Borrower acknowledges and agrees that the Liquidity
Provider's source of funds may derive in part from its participants.
Accordingly, references in this Agreement and the other Operative
Agreements to determinations, reserve and capital adequacy requirements,
increased costs, reduced receipts, additional amounts due pursuant to
Section 3.03(a) and the like as they pertain to the Liquidity Provider
shall be deemed also to include those of each of its participants that are
banks (subject, in each case, to the maximum amount that would have been
incurred by or attributable to the Liquidity Provider directly if the
Liquidity Provider, rather than the participant, had held the interest
participated).
(b) If, pursuant to subsection (a) above, the Liquidity
Provider sells any participation in this Agreement to any bank or other
entity (each, a "Transferee"), then, concurrently with the effectiveness of
such participation, the Transferee shall (i) represent to the Liquidity
Provider (for the benefit of the Liquidity Provider and the Borrower)
either (A) that it is incorporated under the laws of the United States or a
state thereof or (B) that under applicable law and treaties, no taxes will
be required to be withheld with respect to any payments to be made to such
Transferee in respect of this Agreement, (ii) furnish to the Liquidity
Provider and the Borrower either (x) a statement that it is incorporated
under the laws of the United States or a state thereof or (y) if it is not
so incorporated, two copies of a properly completed United States Internal
Revenue Service Form W-8ECI or Form W-8BEN, as appropriate, or other
applicable form, certificate or document prescribed by the Internal Revenue
Service certifying, in each case, such Transferee's entitlement to a
complete exemption from United States federal withholding tax in respect to
any and all payments to be made hereunder, and (iii) agree (for the benefit
of the Liquidity Provider and the Borrower) to provide the Liquidity
Provider and the Borrower a new Form W-8ECI or Form W-8BEN, as appropriate,
(A) on or before the date that any such form expires or becomes obsolete or
(B) after the occurrence of any event requiring a change in the most recent
form previously delivered by it and prior to the immediately following due
date of any payment by the Borrower hereunder, certifying in the case of a
Form W-8BEN or Form W-8ECI that such Transferee is entitled to a complete
exemption from United States federal withholding tax on payments under this
Agreement. Unless the Borrower has received forms or other documents
reasonably satisfactory to it (and required by applicable law) indicating
that payments hereunder are not subject to United States federal
withholding tax, the Borrower will withhold taxes as required by law from
such payments at the applicable statutory rate.
(c) Notwithstanding the other provisions of this Section 7.08,
the Liquidity Provider may assign and pledge all or any portion of the
Advances owing to it to any Federal Reserve Bank or the United States
Treasury as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued
by such Federal Reserve Bank, provided that any payment in respect of such
assigned Advances made by the Borrower to the Liquidity Provider in
accordance with the terms of this Agreement shall satisfy the Borrower's
obligations hereunder in respect of such assigned Advance to the extent of
such payment. No such assignment shall release the Liquidity Provider from
its obligations hereunder.
Section 7.09. SeverabilityAny 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 LAWTHIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial;
Waiver of Immunity(a) Each of the parties hereto hereby irrevocably and
unconditionally:
(i) submits for itself and its property in any
legal action or proceeding relating to this
Agreement or any other Operative Agreement, or
for recognition and enforcement of any judgment
in respect hereof or thereof, to the
nonexclusive general jurisdiction of the courts
of the State of New York, the courts of the
United States of America for the Southern
District of New York, and the appellate courts
from any thereof;
(ii) consents that any such action or proceeding may
be brought in such courts, and waives any
objection that it may now or hereafter have to
the venue of any such action or proceeding in
any such court or that such action or
proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;
(iii) agrees that service of process in any such
action or proceeding may be effected by mailing
a copy thereof by registered or certified mail
(or any substantially similar form of mail),
postage prepaid, to each party hereto at its
address set forth in Section 7.02 hereof, or at
such other address of which the Liquidity
Provider shall have been notified pursuant
thereto; and
(iv) agrees that nothing herein shall affect the
right to effect service of process in any other
manner permitted by law or shall limit the
right to ▇▇▇ in any other jurisdiction.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE
TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN
THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP
THAT IS BEING ESTABLISHED, including, without limitation, contract claims,
tort claims, breach of duty claims and all other common law and statutory
claims. The Borrower and the Liquidity Provider each warrant and represent
that it has reviewed this waiver with its legal counsel, and that it
knowingly and voluntarily waives its jury trial rights following
consultation with such legal counsel. THIS WAIVER IS IRREVOCABLE, AND
CANNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT.
Section 7.12. Execution in CounterpartsThis 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. EntiretyThis Agreement, the Intercreditor
Agreement and the other Operative Agreements to which the Liquidity
Provider is a party constitute the entire agreement of the parties hereto
with respect to the subject matter hereof and supersedes all prior
understandings and agreements of such parties.
Section 7.14. HeadingsSection headings in this Agreement are
included herein for convenience of reference only and shall not constitute
a part of this Agreement for any other purpose.
Section 7.15. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE
ADVANCESEXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF
THE LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S
RIGHTS TO DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES
HEREUNDER, SHALL BE UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR
PERFORMED, IN EACH CASE STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first set forth above.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Subordination Agent, as
agent and trustee for the Class G
Trust, as Borrower
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
CITIBANK, N.A.,
as Liquidity Provider
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Annex I to
Revolving Credit Agreement
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "Borrower"), hereby certifies to Citibank, N.A. (the
"Liquidity Provider"), with reference to the Revolving Credit Agreement
(2001-1G) dated as of January 26, 2001, between the Borrower and the
Liquidity Provider (the "Liquidity Agreement"; the terms defined therein
and not otherwise defined herein being used herein as therein defined or
referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of an Interest Advance by the Liquidity Provider to
be used, subject to clause (3)(v) below, for the payment of the
interest on the Class G Certificates which was payable on
____________, ____ (the "Distribution Date") in accordance with
the terms and provisions of the Class G Trust Agreement and the
Class G Certificates, which Advance is requested to be made on
____________, ____. The Interest Advance should be transferred to
[name of bank/wire instructions/ABA number] in favor of account
number [ __ ], reference [ __ ].
(3) The amount of the Interest Advance requested hereby
(i) is $_______________.__, to be applied in respect of the
payment of the interest which is due and payable on the Class G
Certificates on the Distribution Date, (ii) does not include any
amount with respect to the payment of principal of, or premium on,
the Class G Certificates or the Class C Certificates, or interest
on the Class C Certificates, (iii) was computed in accordance with
the provisions of the Class G Certificates, the Class G Trust
Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), (iv) does not
exceed the Maximum Available Commitment on the date hereof, (v)
does not include any amount of interest which was due and payable
on the Class G Certificates on such Distribution Date but which
remains unpaid due to the failure of the Depositary to pay any
amount of accrued interest on the Deposits on such Distribution
Date and (vi) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will apply the same in
accordance with the terms of Section 3.6(b) of the Intercreditor
Agreement, (b) no portion of such amount shall be applied by the
Borrower for any other purpose and (c) no portion of such amount
until so applied shall be commingled with other funds held by the
Borrower.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, the making of the Interest Advance as requested by
this Notice of Borrowing shall automatically reduce, subject to
reinstatement in accordance with the terms of the Liquidity Agreement, the
Maximum Available Commitment by an amount equal to the amount of the
Interest Advance requested to be made hereby as set forth in clause (i) of
paragraph (3) of this Notice of Borrowing and such reduction shall
automatically result in corresponding reductions in the amounts available
to be borrowed pursuant to a subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:___________________________________
Name:
Title:
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Interest Advance Notice of Borrowing]
Annex II to
Revolving Credit Agreement
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "Borrower"), hereby certifies to Citibank, N.A. (the
"Liquidity Provider"), with reference to the Revolving Credit Agreement
(2001-1G) dated as of January 26, 2001, between the Borrower and the
Liquidity Provider (the "Liquidity Agreement"; the terms defined therein
and not otherwise defined herein being used herein as therein defined or
referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Non-Extension Advance by the Liquidity
Provider to be used for the funding of the Class G Cash Collateral
Account in accordance with Section 3.6(d) of the Intercreditor
Agreement, which Advance is requested to be made on __________,
____. The Non-Extension Advance should be transferred to [name of
bank/wire instructions/ABA number] in favor of account number [ __
], reference [ __ ].
(3) The amount of the Non-Extension Advance requested
hereby (i) is $_______________.__, which equals the Maximum
Available Commitment on the date hereof and is to be applied in
respect of the funding of the Class G Cash Collateral Account in
accordance with Section 3.6(d) of the Intercreditor Agreement,
(ii) does not include any amount with respect to the payment of
the principal of, or premium on, the Class G Certificates or the
Class C Certificates, or interest on the Class C Certificates,
(iii) was computed in accordance with the provisions of the Class
G Certificates, the Class G Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as
Schedule I), and (iv) has not been and is not the subject of a
prior or contemporaneous Notice of Borrowing under the Liquidity
Agreement.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such amount
in the Class G Cash Collateral Account and apply the same in
accordance with the terms of Section 3.6(d) of the Intercreditor
Agreement, (b) no portion of such amount shall be applied by the
Borrower for any other purpose and (c) no portion of such amount
until so applied shall be commingled with other funds held by the
Borrower.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Non-Extension Advance as
requested by this Notice of Borrowing shall automatically and irrevocably
terminate the obligation of the Liquidity Provider to make further Advances
under the Liquidity Agreement; and (B) following the making by the
Liquidity Provider of the Non-Extension Advance requested by this Notice of
Borrowing, the Borrower shall not be entitled to request any further
Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:___________________________________
Name:
Title:
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Non-Extension Advance Notice of Borrowing]
Annex III to
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "Borrower"), hereby certifies to Citibank, N.A. (the
"Liquidity Provider"), with reference to the Revolving Credit Agreement
(2001-1G) dated as of January 26, 2001, between the Borrower and the
Liquidity Provider (the "Liquidity Agreement"; the terms defined therein
and not otherwise defined herein being used herein as therein defined or
referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Downgrade Advance by the Liquidity Provider
to be used for the funding of the Class G Cash Collateral Account
in accordance with Section 3.6(c) of the Intercreditor Agreement
by reason of the downgrading of the short-term unsecured debt
rating of the Liquidity Provider issued by either Rating Agency
below the Threshold Rating, which Advance is requested to be made
on __________, ____. The Downgrade Advance should be transferred
to [name of bank/wire instructions/ABA number] in favor of account
number [ __ ], reference [ __ ].
(3) The amount of the Downgrade Advance requested hereby
(i) is $_______________.__, which equals the Maximum Available
Commitment on the date hereof and is to be applied in respect of
the funding of the Class G Cash Collateral Account in accordance
with Section 3.6(c) of the Intercreditor Agreement, (ii) does not
include any amount with respect to the payment of the principal
of, or premium on, the Class G Certificates or the Class C
Certificates, or interest on the Class C Certificates, (iii) was
computed in accordance with the provisions of the Class G
Certificates, the Class G Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as
Schedule I), and (iv) has not been and is not the subject of a
prior or contemporaneous Notice of Borrowing under the Liquidity
Agreement.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such amount
in the Class G Cash Collateral Account and apply the same in
accordance with the terms of Section 3.6(c) of the Intercreditor
Agreement, (b) no portion of such amount shall be applied by the
Borrower for any other purpose and (c) no portion of such amount
until so applied shall be commingled with other funds held by the
Borrower.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Downgrade Advance as requested
by this Notice of Borrowing shall automatically and irrevocably terminate
the obligation of the Liquidity Provider to make further Advances under the
Liquidity Agreement; and (B) following the making by the Liquidity Provider
of the Downgrade Advance requested by this Notice of Borrowing, the
Borrower shall not be entitled to request any further Advances under the
Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:___________________________________
Name:
Title:
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Downgrade Advance Notice of Borrowing]
Annex IV to
Revolving Credit Agreement
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "Borrower"), hereby certifies to Citibank, N.A. (the
"Liquidity Provider"), with reference to the Revolving Credit Agreement
(2001-1G) dated as of January 26, 2001, between the Borrower and the
Liquidity Provider (the "Liquidity Agreement"; the terms defined therein
and not otherwise defined herein being used herein as therein defined or
referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Final Advance by the Liquidity Provider to
be used for the funding of the Class G Cash Collateral Account in
accordance with Section 3.6(i) of the Intercreditor Agreement by
reason of the receipt by the Borrower of a Termination Notice from
the Liquidity Provider with respect to the Liquidity Agreement,
which Advance is requested to be made on ____________, ____. The
Final Advance should be transferred to [name of bank/wire
instructions/ABA number] in favor of account number [ __ ],
reference [ __ ].
(3) The amount of the Final Advance requested hereby (i)
is $_________________.__, which equals the Maximum Available
Commitment on the date hereof and is to be applied in respect of
the funding of the Class G Cash Collateral Account in accordance
with Section 3.6(i) of the Intercreditor Agreement, (ii) does not
include any amount with respect to the payment of principal of, or
premium on, the Class G Certificates or the Class C Certificates,
or interest on the Class C Certificates, (iii) was computed in
accordance with the provisions of the Class G Certificates, the
Class G Trust Agreement and the Intercreditor Agreement (a copy of
which computation is attached hereto as Schedule I), and (iv) has
not been and is not the subject of a prior or contemporaneous
Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such amount
in the Class G Cash Collateral Account and apply the same in
accordance with the terms of Section 3.6(i) of the Intercreditor
Agreement, (b) no portion of such amount shall be applied by the
Borrower for any other purpose and (c) no portion of such amount
until so applied shall be commingled with other funds held by the
Borrower.
(5) The Borrower hereby requests that the Advance
requested hereby be a Base Rate Advance [and that such Base Rate
Advance be converted into a LIBOR Advance on the third Business
Day following your receipt of this notice](1).
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Final Advance as requested by
this Notice of Borrowing shall automatically and irrevocably terminate the
obligation of the Liquidity Provider to make further Advances under the
Liquidity Agreement; and (B) following the making by the Liquidity Provider
of the Final Advance requested by this Notice of Borrowing, the Borrower
shall not be entitled to request any further Advances under the Liquidity
Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
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.
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Final Advance Notice of Borrowing]
Annex V to
Revolving Credit Agreement
NOTICE OF TERMINATION
[Date]
State Street Bank and Trust Company of
Connecticut, National Association,
as Subordination Agent, as Borrower
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Revolving Credit Agreement dated as of January 26, 2001,
between State Street Bank and Trust Company of
Connecticut, National Association, as Subordination
Agent, as agent and trustee for the US Airways Pass
Through Trust, 2001-1G, as Borrower, and Citibank, N.A.,
as Liquidity Provider (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.
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,
CITIBANK, N.A.,
as Liquidity Provider
By__________________________
Name:
Title:
cc: State Street Bank and Trust Company of
Connecticut, National Association,
as Class G Trustee
Annex VI to
Revolving Credit Agreement
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement dated as of January 26, 2001, between
State Street Bank and Trust Company of Connecticut, National
Association, as Subordination Agent, as agent and trustee for the
US Airways Pass Through Trust, 2001-1G, as Borrower, and Citibank,
N.A., as Liquidity Provider (the "Liquidity Agreement")
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
------------------------------
[Name of Transferee]
------------------------------
[Address of Transferee]
all rights and obligations of the undersigned as Borrower under the
Liquidity Agreement referred to above. The transferee has succeeded the
undersigned as Subordination Agent under the Intercreditor Agreement
referred to in the first paragraph of the Liquidity Agreement, pursuant to
the terms of Section 8.1 of the Intercreditor Agreement.
By this transfer, all rights of the undersigned as Borrower
under the Liquidity Agreement are transferred to the transferee and the
transferee shall hereafter have the sole rights and obligations as Borrower
thereunder. The undersigned shall pay any costs and expenses of such
transfer, including, but not limited to, transfer taxes or governmental
charges.
We ask that this transfer be effective as of _______________,
____.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By___________________________________
Name:
Title:
By___________________________________
Name:
Title:
