Exhibit 4(c)(2)
REVOLVING CREDIT AGREEMENT
(2002-1G-2)
Dated as of April 30, 2002
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Subordination Agent,
as agent and trustee for the trustee of
Delta Air Lines Pass Through Trust 2002-1G-2,
as Borrower
and
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH
as Liquidity Provider
Delta Air Lines Pass Through Trust 2002-1G-2
6.417% Delta Air Lines
Pass Through Certificates,
Series 2002-1G-2
TABLE OF CONTENTS
ARTICLE I DEFINITIONS
Section 1.01. Definitions.......................................................
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances......................................................
Section 2.02. Making of Advances................................................
Section 2.03. Fees..............................................................
Section 2.04. Reduction or Termination of the Maximum Commitment................
Section 2.05. Repayments of Interest Advances or the Final Advance..............
Section 2.06. Repayments of Provider Advances...................................
Section 2.07. Payments to the Liquidity Provider Under the Intercreditor
Agreement.........................................................
Section 2.08. Book Entries......................................................
Section 2.09. Payments from Available Funds Only................................
Section 2.10. Extension of the Expiry Date; Non-Extension Advance...............
ARTICLE III OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs...................................................
Section 3.02. [Intentionally omitted.]..........................................
Section 3.03. Withholding Taxes.................................................
Section 3.04. Payments..........................................................
Section 3.05. Computations......................................................
Section 3.06. Payment on Non-Business Days......................................
Section 3.07. Interest..........................................................
Section 3.08. Replacement of Borrower...........................................
Section 3.09. Funding Loss Indemnification......................................
Section 3.10. Illegality........................................................
ARTICLE IV CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01.............
Section 4.02. Conditions Precedent to Borrowing.................................
ARTICLE V COVENANTS
Section 5.01. Affirmative Covenants of the Borrower.............................
Section 5.02. Negative Covenants of the Borrower................................
ARTICLE VI LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default.......................................
ARTICLE VII MISCELLANEOUS
Section 7.01. No Oral Modifications or Continuing Waivers.......................
Section 7.02. Notices...........................................................
Section 7.03. No Waiver; Remedies...............................................
Section 7.04. Further Assurances................................................
Section 7.05. Indemnification; Survival of Certain Provisions...................
Section 7.06. Liability of the Liquidity Provider...............................
Section 7.07. Certain Costs and Expenses........................................
Section 7.08. Binding Effect; Participations....................................
Section 7.09. Severability......................................................
Section 7.10. Governing Law.....................................................
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of
Immunity..........................................................
Section 7.12. Counterparts......................................................
Section 7.13. Entirety..........................................................
Section 7.14. Headings..........................................................
Section 7.15. Liquidity Provider's Obligation to Make Advances..................
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
This REVOLVING CREDIT AGREEMENT, dated as of April 30, 2002, is made by
and between STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity but
solely as Subordination Agent (such term and other capitalized terms used herein
without definition being defined as provided in Article I) under the
Intercreditor Agreement (as defined below), as agent and trustee for the Class
G-2 Trustee (in such capacity, together with its successors in such capacity,
the "Borrower"), and WESTDEUTSCHE LANDESBANK GIROZENTRALE, a German banking
institution organized under the laws of the State of North Rhine-Westphalia
("WestLB"), acting through its New York Branch (the "Liquidity Provider").
W I T N E S S E T H:
WHEREAS, pursuant to the Class G-2 Trust Agreement, the Class G-2 Trust is
issuing the Class G-2 Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a portion
of the interest on the Class G-2 Certificates in accordance with their terms,
has requested the Liquidity Provider to enter into this Agreement, providing in
part for the Borrower to request in specified circumstances that Advances be
made hereunder;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. (a) The definitions stated herein apply equally
to both the singular and the plural forms of the terms defined.
(b) All references in this Agreement to designated "Articles", "Sections",
"Annexes" and other subdivisions are to the designated Article, Section, Annex
or other subdivision of this Agreement, unless otherwise specifically stated.
(c) The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Annex or other subdivision.
(d) Unless the context otherwise requires, whenever the words "including",
"include" or "includes" are used herein, it shall be deemed to be followed by
the phrase "without limitation".
(e) For the purposes of this Agreement, unless the context otherwise
requires, the following capitalized terms shall have the following meanings:
"Advance" means an Interest Advance, a Final Advance, a Provider
Advance, an Applied Provider Advance or an Unpaid Advance, as the case may
be.
"Agreement" means this Agreement, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
"Applicable Liquidity Rate" has the meaning specified in Section
3.07(g).
"Applicable Margin" means with respect to any Unpaid Advance or
Applied Provider Advance, 2.00% per annum.
"Applied Downgrade Advance" has the meaning specified in Section
2.06(a).
"Applied Non-Extension Advance" has the meaning specified in Section
2.06(a).
"Applied Provider Advance" means an Applied Downgrade Advance or an
Applied Non-Extension Advance.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
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 each day in the period for which the Base Rate is to be
determined (or, if such day is not a Business Day, for the 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 (and reasonably satisfactory to Delta) plus one-quarter of one
percent (0.25%).
"Base Rate Advance" means an Advance that bears interest at a rate
based upon the Base Rate.
"Borrower" has the meaning specified in the introductory paragraph
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, a Sunday or a
day on which commercial banks are required or authorized to close in New
York, New York, Atlanta, Georgia, or, so long as any Class G-2 Certificate
is outstanding, the city and state in which the Class G-2 Trustee, the
Borrower or any related Loan Trustee maintains its Corporate Trust Office
or receives or disburses funds, and, if the applicable Business Day
relates to any Advance or other amount bearing interest based on the LIBOR
Rate, on which dealings are carried on in the London interbank market.
"Consent Notice" has the meaning specified in Section 2.10.
"Consent Period" has the meaning specified in Section 2.10.
"Covered Taxes" means any Taxes imposed by the United States or any
political subdivision or taxing authority thereof or therein required by
law to be deducted or withheld from any amounts payable to the Liquidity
Provider under this Agreement other than (i) any Tax on, based on or
measured by net income, franchises or conduct of business, (ii) any Tax
imposed, levied, withheld or assessed as a result of any connection
between the Liquidity Provider and the United States or such political
subdivision or taxing authority, other than a connection arising solely
from the Liquidity Provider's having executed, delivered, performed its
obligations or received a payment under, or enforced, any Operative
Agreement, (iii) any Tax attributable to the inaccuracy in or breach by
the Liquidity Provider of any of its representations, warranties or
covenants contained in any Operative Agreement to which it is a party or
the inaccuracy of any form or document furnished pursuant thereto, (iv)
any withholding Taxes imposed by the United States except to the extent
such withholding Taxes would not have been required to be deducted or
withheld from payments hereunder but for a change after the date hereof
(or in the case of a successor Liquidity Provider (including a transferee
of an Advance) after the date on which such successor Liquidity Provider
obtains its interest) 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 other than the
applicable income tax treaty between the United States of America and the
Federal Republic of Germany ("German Treaty") (except an addition to, or
change in any "anti-treaty shopping", "limitation of benefits" or similar
provision in such German Treaty)), (v) 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, or
(vi) any change in the Lending Office without the prior written consent of
Delta (such consent not to be unreasonably withheld).
"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(f) shall be conclusive evidence that the Effective Date has
occurred.
"Expenses" means liabilities, losses, damages, costs and expenses
(including, without limitation, reasonable fees and disbursements of legal
counsel), provided that Expenses shall not include any Taxes other than
sales, use and V.A.T. taxes imposed on fees and expenses payable pursuant
to Section 7.07.
"Expiry Date" means April 28, 2003, initially, or any date to which
the Expiry Date is extended pursuant to Section 2.10.
"Final Advance" means an Advance made pursuant to Section 2.02(d).
"Increased Cost" has the meaning specified in Section 3.01.
"Intercreditor Agreement" means the Intercreditor Agreement, dated
as of the date hereof, among the Trustees, the Liquidity Provider, the
liquidity provider under each Liquidity Facility (other than this
Agreement), the Policy Provider and the Subordination Agent, as the same
may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
"Interest Advance" means an Advance made pursuant to Section
2.02(a).
"Interest Period" means, with respect to any LIBOR Advance, each of
the following periods:
(i) the period beginning on the third Business Day following
either (A) the Liquidity Provider's receipt of the Notice of
Borrowing for such LIBOR Advance or (B) the date of the withdrawal
of funds from the Class G-2 Cash Collateral Account for the purpose
of paying interest on the Class G-2 Certificates as contemplated by
Section 2.06(a) hereof and, in each case, ending on the next
numerically corresponding day in the first calendar month after the
first day of the applicable Interest Period; and
(ii) each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the numerically
corresponding day in the first calendar month after the first day of
the applicable Interest Period;
provided, however, that if (x) the Final Advance shall have been made
pursuant to Section 2.02(d) or (y) other outstanding Advances shall have
been converted into the Final Advance pursuant to Section 6.01, 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).
"Lending Office" means the lending office of the Liquidity Provider
presently located at New York, New York, or such other lending office as
the Liquidity Provider from time to time shall notify the Borrower as its
lending office hereunder; provided that the Liquidity Provider shall not
change its Lending Office without the prior written consent of Delta (such
consent not to be unreasonably withheld).
"LIBOR Advance" means an Advance bearing interest at a rate based
upon the LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period, (a) the
interest rate per annum equal to the rate per annum at which deposits in
Dollars are offered in the London interbank market as shown on Page 3750
of the Telerate Systems Incorporated screen service (or such other page as
may replace Telerate Page 3750), or if such service is not available, Page
LIBO of the Reuters Money Service Monitor System (or such other page as
may replace Reuters Page LIBO) at approximately 11:00 a.m. (London time)
on the day that is two Business Days prior to the first day of such
Interest Period, for a period comparable to such Interest Period, or (b)
if no such rate is published on either such service or if neither of such
services is then available, the interest rate per annum equal to the
average (rounded up, if necessary, to the nearest 1/100th of 1%) of the
rates at which deposits in Dollars are offered by the Reference Banks (or,
if fewer than all of the Reference Banks are quoting a rate for deposits
in Dollars for the applicable period and amount, such fewer number of
Reference Banks) at approximately 11:00 a.m. (London time) on the day that
is two Business Days prior to the first day of such Interest Period to
prime banks in the London interbank market for a period comparable to such
Interest Period and in an amount approximately equal to the principal
amount of the LIBOR Advance to be outstanding during such Interest Period,
or (c) if none of the Reference Banks is quoting a rate for deposits in
Dollars in the London interbank market for such a period and amount, the
interest rate per annum equal to the average (rounded up, if necessary, to
the nearest 1/100th of 1%) of the rates at which deposits in Dollars are
offered by the principal New York offices of the Reference Banks (or, if
fewer than all of the Reference Banks are quoting a rate for deposits in
Dollars in the New York interbank market for the applicable period and
amount, such fewer number of Reference Banks) at approximately 11:00 a.m.
(New York time) on the day that is two Business Days prior to the first
day of such Interest Period to prime banks in the New York interbank
market for a period comparable to such Interest Period and in an amount
approximately equal to the principal amount of the LIBOR Advance to be
outstanding during such Interest Period, or (d) if none of the principal
New York offices of the Reference Banks is quoting a rate for deposits in
Dollars in the New York interbank market for the applicable period and
amount, the Base Rate.
"Liquidity Event of Default" means the occurrence of either (a) the
Acceleration of all of the Equipment Notes or (b) a Delta Bankruptcy
Event.
"Liquidity Indemnitee" means the Liquidity Provider, its directors,
officers, employees and agents, and its successors and permitted assigns.
"Liquidity Provider" has the meaning specified in the introductory
paragraph to this Agreement.
"Maximum Available Commitment" means, 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 $39,734,094.66, as the same may
be reduced from time to time in accordance with Section 2.04(a).
"Non-Extension Advance" means an Advance made pursuant to Section
2.02(b).
"Notice of Borrowing" has the meaning specified in Section 2.02(e).
"Notice of Replacement Subordination Agent" has the meaning
specified in Section 3.08.
"Participation" has the meaning specified in Section 7.08(b).
"Performing Note Deficiency" means any time that less than 65% of
the then aggregate outstanding principal amount of all Equipment Notes are
Performing Equipment Notes.
"Permitted Transferee" means any Person that:
(a) is not a commercial air carrier, Delta or any affiliate
of Delta; and
(b) is any one of:
(1) a commercial banking institution organized under the
laws of the United States or any state thereof or the District
of Columbia;
(2) a commercial banking institution that (x) is
organized under the laws of France, Germany, The Netherlands,
Switzerland or the United Kingdom, (y) is entitled on the date
it acquires any Participation to a complete exemption from
United States federal income taxes for all income derived by
it from the transactions contemplated by the Operative
Agreements under an income tax treaty, as in effect on such
date, between the United States and such jurisdiction of its
organization and (z) is engaged in the active conduct of a
banking business in such jurisdiction of its organization,
holds its Participation in connection with such banking
business in such jurisdiction and is regulated as a commercial
banking institution by the appropriate regulatory authorities
in such jurisdiction; or
(3) a commercial banking institution that (x) is
organized under the laws of Canada, France, Germany, Ireland,
Japan, Luxembourg, The Netherlands, Sweden, Switzerland or the
United Kingdom and (y) is entitled on the date it acquires any
Participation to a complete exemption from withholding of
United States federal income taxes for all income derived by
it from the transactions contemplated by the Operative
Agreements under laws as in effect on such date by reason of
such income being effectively connected with the conduct of a
trade or business within the United States.
"Prospectus Supplement" means the Prospectus Supplement dated April
23, 2002, relating to the Certificates, as such Prospectus Supplement may
be amended or supplemented.
"Provider Advance" means a Downgrade Advance or a Non-Extension
Advance.
"Reference Banks" means the principal London offices of: National
Westminster Bank, plc; WestLB; ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Bank; Citibank, N.A.; and
such other or additional banking institutions as may be designated from
time to time by mutual agreement of Delta and the Liquidity Provider.
"Regulatory Change" means the enactment, adoption or promulgation,
after the date of this Agreement, of any law or regulation by a United
States federal or state government or by the government of the Liquidity
Provider's jurisdiction of organization, or any change, after the date of
this Agreement, in any such law or regulation, or in the interpretation
thereof by any governmental authority, central bank or comparable agency
of the United States or the Liquidity Provider's jurisdiction of
organization charged with responsibility for the administration or
application thereof, that shall impose, modify or deem applicable: (a) any
reserve, special deposit or similar requirement against extensions of
credit or other assets of, or deposits with or other liabilities of, the
Liquidity Provider including, or by reason of, the Advances, or (b) any
capital adequacy requirement requiring the maintenance by the Liquidity
Provider of additional capital in respect of any Advances or the Liquidity
Provider's obligation to make any such Advances.
"Replenishment Amount" has the meaning specified 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-2 Certificates on the basis of a 360-day
year comprised of twelve 30-day months, that would be payable on the Class
G-2 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-2 Certificates on such day and without regard
to expected future distributions of principal on the Class G-2
Certificates. Notwithstanding the above, in the event of a Policy Provider
Election with respect to a Series G-2 Equipment Note, the Pool Balance,
for purposes of this definition, shall be deemed to be reduced by an
amount (if positive) by which (a) the then outstanding principal balance
of such Series G-2 Equipment Note shall exceed (b) the amount of any
policy drawings previously paid by the Policy Provider in respect of
principal on such Series G-2 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-2 Certificates have been paid
in full (or provision has been made for such payment in accordance with
the Intercreditor Agreement and the Class G-2 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 3.06(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; 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.
"Unapplied Provider Advance" means any Provider Advance other than
an Applied Provider Advance.
"Unpaid Advance" has the meaning specified in Section 2.05.
"Withdrawal Notice" has the meaning specified in Section 2.10.
For the purposes of this Agreement, the following terms shall have the
respective meanings specified in the Intercreditor Agreement:
"Acceleration", "Certificate", "Class C Certificates", "Class D
Certificates", "Class G-1 Certificates", "Class G-2 Cash Collateral
Account", "Class G-2 Certificates", "Class G-2 Certificateholders", "Class
G-2 Trust", "Class G-2 Trust Agreement", "Class G-2 Trustee", "Closing
Date", "Collection Account", "Controlling Party", "Corporate Trust
Office", "Delta", "Delta Bankruptcy Event", "Distribution Date",
"Dollars", "Downgraded Facility", "Equipment Notes", "Fee Letter", "Final
Legal Distribution Date", "Indenture", "Initial Class D Holder", "Interest
Payment Date", "Investment Earnings", "Liquidity Facility", "Liquidity
Obligations", "Loan Trustee", "▇▇▇▇▇'▇", "Non-Extended Facility",
"Operative Agreements", "Participation Agreements", "Performing Equipment
Note", "Person", "Policy", "Policy Provider", "Policy Provider Election",
"Pool Balance", "Rating Agencies", "Ratings Confirmation", "Regular
Distribution Date", "Replacement Liquidity Facility", "Responsible
Officer", "Scheduled Payment", "Special Payment", "S&P", "Stated Interest
Rate", "Subordination Agent", "Taxes", "Threshold Rating", "Trust
Agreement", "Trustee", "Underwriters", "Underwriting Agreement", "United
States" and "Written Notice".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances. The Liquidity Provider hereby irrevocably
agrees, on the terms and conditions hereinafter set forth, to make Advances to
the Borrower from time to time on any Business Day during the period from the
Effective Date until 12:00 noon (New York City time) on the Expiry Date (unless
the obligations of the Liquidity Provider shall be earlier terminated in
accordance with the terms of Section 2.04(b)) in an aggregate amount at any time
outstanding not to exceed the Maximum Commitment.
Section 2.02. Making of Advances. (a) Each Interest Advance shall be made
by the Liquidity Provider upon delivery to the Liquidity Provider of a written
and completed Notice of Borrowing in substantially the form of Annex I, signed
by a Responsible Officer of the Borrower, such Interest Advance to be in an
amount not exceeding the Maximum Available Commitment at such time and used
solely for the payment when due of interest with respect to the Class G-2
Certificates at the Stated Interest Rate therefor in accordance with Section
3.06(a) and 3.06(b) of the Intercreditor Agreement. Each Interest Advance made
hereunder shall automatically reduce the Maximum Available Commitment and the
amount available to be borrowed hereunder by subsequent Advances by the amount
of such Interest Advance (subject to reinstatement as provided in the next
sentence). Upon repayment to the Liquidity Provider in full or in 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 an amount equal to the amount of such Interest
Advance so repaid, but not to exceed the Maximum Commitment; provided, however,
that the Maximum Available Commitment shall not be so reinstated at any time if
(x) both a Performing Note Deficiency exists and a Liquidity Event of Default
shall have occurred and be continuing or (y) a Final Drawing shall have
occurred.
(b) Subject to Section 2.10, a Non-Extension Advance shall be made by the
Liquidity Provider if this Agreement is not extended in accordance with Section
3.06(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 3.06(d) within the time period specified in such
Section 3.06(d)) upon delivery to the Liquidity Provider of a written and
completed Notice of Borrowing in substantially the form of Annex II, 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-2 Cash Collateral
Account in accordance with Sections 3.06(d) and 3.06(f) of the Intercreditor
Agreement.
(c) A Downgrade Advance shall be made by the Liquidity Provider if at any
time the short-term unsecured debt rating (in the case of ▇▇▇▇▇'▇) or short-term
corporate credit rating (in the case of S&P) of the Liquidity Provider issued by
▇▇▇▇▇'▇ or S&P, respectively, (or if the Liquidity Provider does not have a
short-term unsecured debt rating or short-term corporate credit rating, as
applicable, issued by a given Rating Agency, the long-term unsecured debt rating
(in the case of ▇▇▇▇▇'▇) or long-term corporate credit rating (in the case of
S&P) of the Liquidity Provider issued by such Rating Agency) is lower than the
applicable Threshold Rating (as provided for in Section 3.06(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 3.06(c), upon delivery to the Liquidity Provider of a written
and completed Notice of Borrowing in substantially the form of Annex III, 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-2 Cash
Collateral Account in accordance with Sections 3.06(c) and 3.06(f) of the
Intercreditor Agreement.
(d) A Final Advance shall be made by the Liquidity Provider following the
receipt by the Borrower of a Termination Notice from the Liquidity Provider
pursuant to Section 6.01 upon delivery to the Liquidity Provider of a written
and completed Notice of Borrowing in substantially the form of Annex IV, 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-2 Cash
Collateral Account (in accordance with Sections 3.06(f) and 3.06(i) 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 Dollars and immediately available funds, before 4:00 p.m. (New York
City time) on such Business Day or before 1:00 p.m. (New York City time) 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 Dollars and immediately
available funds, before 1:00 p.m. (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. Each Notice of Borrowing shall be effective upon delivery of a copy
thereof to the Liquidity Provider's New York branch at the address specified in
Section 7.02 hereof.
(f) Upon the making of any Advance requested pursuant to a Notice of
Borrowing in accordance with the Borrower's payment instructions, the Liquidity
Provider shall be fully discharged of its obligation hereunder with respect to
such Notice of Borrowing, and the Liquidity Provider shall not thereafter be
obligated to make any further Advances hereunder in respect of such Notice of
Borrowing to the Borrower or to any other Person (including the Trustee or any
Class G-2 Certificateholder). 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), 2.02(c) or 2.02(d) to fund the Class G-2 Cash Collateral
Account, the Liquidity Provider shall have no interest in or rights to the Class
G-2 Cash Collateral Account, such Advance or any other amounts from time to time
on deposit in the Class G-2 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 3.06(e) or 3.06(f) of the
Intercreditor Agreement and provided further, that the foregoing shall not
affect or impair the rights of the Liquidity Provider to provide written
instructions with respect to the investment and reinvestment of amounts in the
Class G-2 Cash Collateral Account to the extent provided in Section 2.02(b) of
the Intercreditor Agreement. By paying to the Borrower proceeds of Advances
requested by the Borrower in accordance with the provisions of this Agreement,
the Liquidity Provider makes no representation as to, and assumes no
responsibility for, the correctness or sufficiency for any purpose of the amount
of the Advances so made and requested.
Section 2.03. Fees. The Borrower agrees to pay to the Liquidity Provider
the fees set forth in the Fee Letter.
Section 2.04. Reduction or Termination of the Maximum Commitment. (a)
Automatic Reduction. Promptly following each date on which the Required Amount
is reduced as a result of a reduction in the Pool Balance of the Class G-2
Certificates or otherwise (including upon any Policy Provider Election with
respect to a Series G-2 Equipment Note), 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 and
Delta 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 Advance.
Subject to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby agrees,
without notice of an Advance or demand for repayment from the Liquidity Provider
(which notice and demand are hereby waived by the Borrower), to pay, or to cause
to be paid, to the Liquidity Provider (a) on each date on which the Liquidity
Provider shall make an Interest Advance or the Final Advance, an amount equal to
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 in the amounts and on the dates determined as provided in Section
3.07; 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. For the avoidance of doubt, interest payable on an Interest
Advance or the Final Advance shall not be regarded as overdue unless such
interest is not paid when due under Section 3.07.
Section 2.06. Repayments of Provider Advances. (a) Amounts advanced
hereunder in respect of a Provider Advance shall be deposited in the Class G-2
Cash Collateral Account and invested and withdrawn from the Class G-2 Cash
Collateral Account as set forth in Sections 3.06(c), 3.06(d), 3.06(e) and
3.06(f) of the Intercreditor Agreement. Subject to Sections 2.07 and 2.09, 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,
in the amounts determined as provided in Section 3.07; provided, however, that
amounts in respect of a Provider Advance withdrawn from the Class G-2 Cash
Collateral Account for the purpose of paying interest on the Class G-2
Certificates in accordance with Section 3.06(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 and the
dates on which such interest is payable; 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, 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 and the dates on which such interest is payable. Subject to Sections
2.07 and 2.09 hereof, immediately upon the withdrawal of any amounts from the
Class G-2 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.
(b) At any time when an Applied Provider Advance (or any portion thereof)
is outstanding, upon the deposit in the Class G-2 Cash Collateral Account of any
amount pursuant to clause "third" of Section 2.04(b) of the Intercreditor
Agreement, clause "third" of Section 3.02 of the Intercreditor Agreement or
clause "fourth" of Section 3.03 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 3.06(e) of the Intercreditor
Agreement, as provided in Section 3.06(f) of the Intercreditor Agreement,
amounts remaining on deposit in the Class G-2 Cash Collateral Account after
giving effect to any Applied Provider Advance on the date of such replacement
shall be reimbursed to the Liquidity Provider, but only to the extent such
amounts are necessary to repay in full to the Liquidity Provider all amounts
owing to it hereunder.
Section 2.07. Payments to the Liquidity Provider Under the Intercreditor
Agreement. In order to provide for payment or repayment to the Liquidity
Provider of any amounts hereunder, the Intercreditor Agreement provides that
amounts available and referred to in Articles II and III of the Intercreditor
Agreement, to the extent payable to the Liquidity Provider pursuant to the terms
of the Intercreditor Agreement (including, without limitation, Section 3.06(f)
of the Intercreditor Agreement), shall be paid to the Liquidity Provider in
accordance with the terms thereof (but, for the avoidance of doubt, without
duplication of or increase in any amounts payable hereunder). Amounts so paid to
the Liquidity Provider shall be applied by the Liquidity Provider in the order
of priority required by the applicable provisions of Articles II and III of the
Intercreditor Agreement and shall discharge in full the corresponding
obligations of the Borrower hereunder.
Section 2.08. Book Entries. The Liquidity Provider shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower resulting from Advances made from time to time and
the amounts of principal and interest payable hereunder and paid from time to
time in respect thereof; provided, however, that the failure by the Liquidity
Provider to maintain such account or accounts shall not affect the obligations
of the Borrower in respect of Advances.
Section 2.09. Payments from Available Funds Only. All payments to be made
by the Borrower under this Agreement shall be made only from the amounts that
constitute Scheduled Payments, Special Payments and other payments under the
Operative Agreements, including payment under Section 4.02 of the Participation
Agreements and payments under Section 2.14 of the Indentures, 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-2 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 3.06(f) of the Intercreditor Agreement.
Section 2.10. Extension of the Expiry Date; Non-Extension Advance. If the
Expiry Date is prior to the date that is 15 days after the Final Legal
Distribution Date for the Class G-2 Certificates, then no earlier than the 60th
day and no later than the 40th day prior to the then applicable Expiry Date, the
Borrower may request in writing 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-2 Certificates and (ii) the date that is the
day immediately preceding the 364th day after the last day of the Consent Period
(unless the obligations of the Liquidity Provider hereunder are earlier
terminated in accordance herewith). The Liquidity Provider shall by notice (the
"Consent Notice") to the Borrower during the period commencing on the date that
is 60 days prior to the then effective Expiry Date and ending on the date that
is 25 days prior to the then effective Expiry Date (the "Consent Period") advise
the Borrower whether, in its sole discretion, it agrees to so extend the Expiry
Date; provided, however, that such extension shall not be effective with respect
to the Liquidity Provider if, by notice (the "Withdrawal Notice") to the
Borrower prior to the end of the Consent Period, the Liquidity Provider revokes
its Consent Notice. If the Liquidity Provider advises the Borrower in the
Consent Notice that such Expiry Date shall not be so extended, or gives a
Withdrawal Notice to the Borrower prior to the end of the Consent Period, or
fails to irrevocably and unconditionally advise the Borrower on or before the
end of the Consent Period 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 3.06(e) of the Intercreditor Agreement), the Borrower shall be
entitled on and after the date on which the Consent Period ends (but prior to
the then effective Expiry Date) to request a Non-Extension Advance in accordance
with Section 2.02(b) hereof and Section 3.06(d) of the Intercreditor Agreement.
If any amounts shall be drawn pursuant to a Non-Extension Advance and, within 30
days thereafter, the Liquidity Provider shall not have been replaced, then at
any time following the 30th day after such Non-Extension Advance, the Liquidity
Provider may, by written notice to the Borrower, agree to reinstate the
Liquidity Facility on the terms of the existing Liquidity Facility for a period
ending on the 364th day after the end of the Consent Period; provided, however,
that in such event the Liquidity Provider shall reimburse the Borrower for any
costs actually incurred by or on behalf of the Borrower in drawing pursuant to
the Non-Extension Advance and funding the Class G-2 Cash Collateral Account or
otherwise in connection with the Non-Extension Advance.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs. If as a result of any Regulatory Change
there shall be any increase by an amount reasonably deemed by the Liquidity
Provider to be material in the actual cost to the Liquidity Provider of making,
funding or maintaining any Advances or its obligation to make any such Advances
or there shall be any reduction by an amount reasonably deemed by the Liquidity
Provider to be material in the amount receivable by the Liquidity Provider under
this Agreement or the Intercreditor Agreement in respect thereof, and in case of
either such an increase or reduction, such event does not arise from the gross
negligence or willful misconduct of the Liquidity Provider, from its breach of
any of its representations, warranties, covenants or agreements contained herein
or in the Intercreditor Agreement or from its failure to comply with any such
Regulatory Change (any such increase or reduction being referred to herein as an
"Increased Cost"), then the Borrower shall from time to time pay to the
Liquidity Provider an amount equal to such Increased Cost within 15 Business
Days after delivery to the Borrower and Delta of a certificate of an officer of
the Liquidity Provider describing in reasonable detail the event by reason of
which it claims such Increased Cost and the basis for the determination of the
amount of such Increased Cost; provided that, the Borrower shall be obligated to
pay amounts only with respect to any Increased Costs accruing from the date 45
days prior to the date of delivery of such certificate. Such certificate, in the
absence of manifest error, shall be considered prima facie evidence of the
amount of the Increased Costs for purposes of this Agreement; provided that any
determinations and allocations by the Liquidity Provider of the effect of any
Regulatory Change on the costs of maintaining the Advances are made on a
reasonable basis. The Liquidity Provider shall not be entitled to assert any
claim under this Section 3.01 in respect of or attributable to Taxes. The
Liquidity Provider will notify the Borrower and Delta as promptly as practicable
of any event occurring after the date of this Agreement that will entitle the
Liquidity Provider to compensation under this Section 3.01. The Liquidity
Provider agrees to investigate all commercially reasonable alternatives for
reducing any Increased Costs and to use all commercially reasonable efforts
(consistent with applicable legal and regulatory restrictions) to avoid or
minimize, to the greatest extent possible, any claim in respect of Increased
Costs, including, without limitation, by designating a different Lending Office,
if such designation or other action would avoid the need for, or reduce the
amount of, any such claim; provided that the foregoing shall not obligate the
Liquidity Provider to take any action that would, in its reasonable judgment,
cause the Liquidity Provider to incur any material loss or cost, unless the
Borrower or Delta agrees to reimburse the Liquidity Provider therefor. If no
such designation or other action is effected, or, if effected, fails to avoid
the need for any claim in respect of Increased Costs, Delta may arrange for a
Replacement Liquidity Facility in accordance with Section 3.06(e) of the
Intercreditor Agreement.
Notwithstanding the foregoing provisions, in no event shall the Borrower
be required to make payments under this Section 3.01: (a) in respect of any
Regulatory Change proposed by any applicable governmental authority (including
any branch of a legislature), central bank or comparable agency of the United
States or the Liquidity Provider's jurisdiction of organization and pending as
of the date of this Agreement (it being agreed that the consultative paper
issued by the Basel Committee on Banking Supervision entitled "The New Basel
Capital Accord", dated January 2001, shall not be considered to have been
proposed or pending as of the date of this Agreement); (b) if a claim hereunder
in respect of an Increased Cost arises through circumstances peculiar to the
Liquidity Provider and that do not affect similarly organized commercial banking
institutions in the same jurisdiction generally that are in compliance with the
law, rule, regulation or interpretation giving rise to the Regulatory Change
relating to such Increased Cost; (c) if the Liquidity Provider shall fail to
comply with its obligations under this Section 3.01; or (d) if the Liquidity
Provider is not also seeking payment for similar increased costs in other
similarly situated transactions.
Section 3.02. [Intentionally omitted.]
Section 3.03. Withholding Taxes. (a) All payments made by the Borrower
under this Agreement shall be made without deduction or withholding for or on
account of any Taxes, unless such deduction or withholding is required by law.
If any Taxes are so required to be withheld or deducted from any amounts payable
to the Liquidity Provider under this Agreement, the Borrower shall pay to the
relevant authorities the full amount so required to be deducted or withheld and,
if such Taxes are Covered Taxes, pay to the Liquidity Provider such additional
amounts as shall be necessary to ensure that the net amount actually received by
the Liquidity Provider (after deduction or withholding of all Covered Taxes)
shall be equal to the full amount that would have been received by the Liquidity
Provider had no withholding or deduction of Covered Taxes been required. The
Liquidity Provider agrees to use reasonable efforts (consistent with applicable
legal and regulatory restrictions) to change the jurisdiction of its Lending
Office if making such change would avoid the need for, or reduce the amount of,
any such additional amounts that may thereafter accrue and would not, in the
reasonable judgment of the Liquidity Provider, be otherwise materially
disadvantageous to the Liquidity Provider. If the Liquidity Provider receives a
refund of, or realizes a net Tax benefit not otherwise available to it as a
result of, any Taxes for which additional amounts were paid by the Borrower
pursuant to this Section 3.03, the Liquidity Provider shall pay to the Borrower
(for deposit into the Collection Account) the amount of such refund (and any
interest thereon) or net benefit.
The Liquidity Provider will (i) provide (on its behalf and on behalf of
any participant holding a Participation pursuant to Section 7.08) to the
Borrower (x) on or prior to the Effective Date two valid completed and executed
copies of Internal Revenue Service Form W8-BEN or W8-EC1 (whichever is
applicable), including thereon a valid U.S. taxpayer identification number (or,
with respect to any such participant, such other form or documentation as may be
applicable) covering all amounts receivable by it in connection with the
transactions contemplated by the Operative Agreements and (y) thereafter from
time to time such additional forms or documentation as may be necessary to
establish an available exemption from withholding of United States Tax on
payments hereunder so that such forms or documentation are effective for all
periods during which it is the Liquidity Provider and (ii) provide timely notice
to the Borrower if any such form or documentation is or becomes inaccurate. The
Liquidity Provider shall deliver to the Borrower such other forms or documents
as may be reasonably requested by the Borrower or required by applicable law to
establish that payments hereunder are exempt from or entitled to a reduced rate
of Covered Taxes.
(b) All payments (including, without limitation, Advances) made by the
Liquidity Provider under this Agreement shall be made free and clear of, and
without reduction for or on account of, any Taxes. If any Taxes are required to
be withheld or deducted from any amounts payable to the Borrower under this
Agreement, the Liquidity Provider shall (i) within the time prescribed therefor
by applicable law pay to the appropriate governmental or taxing authority the
full amount of any such Taxes (and any additional Taxes in respect of the
additional amounts payable under clause (ii) hereof) and make such reports or
returns in connection therewith at the time or times and in the manner
prescribed by applicable law, and (ii) pay to the Borrower an additional amount
which (after deduction of all such Taxes) will be sufficient to yield to the
Borrower the full amount which would have been received by it had no such
withholding or deduction been made. Within 30 days after the date of each
payment hereunder, the Liquidity Provider shall furnish to the Borrower the
original or a certified copy of (or other documentary evidence of) the payment
of the Taxes applicable to such payment.
If any exemption from, or reduction in the rate of, any Taxes required to
be borne by the Liquidity Provider under this Section 3.03(b) is reasonably
available to the Borrower without providing any information regarding the
holders or beneficial owners of the Certificates, the Borrower shall deliver the
Liquidity Provider such form or forms and such other evidence of the eligibility
of the Borrower for such exemption or reductions (but without any requirement to
provide any information regarding the holders or beneficial owners of the
Certificates) 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,
such 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 Dollars,
to the Liquidity Provider in immediately available funds, by wire transfer to
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, 021-000021 in favor of account number 9201060663,
Westdeutsche Landesbank New York Branch, Reference: Delta EETC 2002-1, G-2 LF.
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 Sections 2.07 and 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-2 Cash
Collateral Account to pay interest on the Class G-2 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-2 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) that 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 the
interest rate per annum for each day equal to the Applicable Liquidity Rate (as
defined below) for such Advance or such other amount, as the case may be, 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 to the maximum
extent permitted by applicable law 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 absolute amount of interest that would have accrued
(without additional interest thereon) if such otherwise applicable interest rate
as set forth in this Section 3.07 had at all relevant times been in effect.
Nothing contained in this Section 3.07 shall require the Borrower to pay any
amount under this Section 3.07 other than to the extent the Borrower shall have
funds available therefor.
(b) Except as provided in Section 3.07(e), each Advance will be either a
Base Rate Advance or a LIBOR Advance as provided in this Section 3.07. 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, pursuant to Section 2.06, such
Final Advance is deemed to have been made without delivery of a Notice of
Borrowing, 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 outstanding Unapplied Provider Advance shall bear interest in an
amount equal to the Investment Earnings on amounts on deposit in the Class G-2
Cash Collateral Account for such Unapplied Provider Advance on the amount of
such Unapplied Provider Advance from time to time, payable in arrears on each
Regular Distribution Date.
(f) Each amount not paid when due hereunder (whether fees, commissions,
expenses or other amounts or, to the extent permitted by applicable law,
installments of interest on Advances but excluding Advances) shall bear interest
at a rate per annum equal to the Base Rate plus 2.00% per annum until paid.
(g) Each change in the Base Rate shall become effective immediately. The
rates of interest specified in this Section 3.07 with respect to any Advance or
other amount shall be referred to as the "Applicable Liquidity Rate".
Section 3.08. Replacement of Borrower. Subject to Section 5.02, from time
to time and subject to the successor Borrower's meeting the eligibility
requirements set forth in Section 6.09 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 (a "Notice of Replacement Subordination Agent") delivered
to the Liquidity Provider by the then Borrower, the successor Borrower
designated therein shall become 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
the Applicable Margin or 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 law, rule or regulation applicable to or binding
on the Liquidity Provider, 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 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 to maintain or fund
its LIBOR Advances, then upon notice to the Borrower and Delta 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 reasonable
judgment of the Liquidity Provider, requires immediate conversion; or (b) at the
expiration of the last Interest Period to expire before the effective date of
any such change or request. The Liquidity Provider will notify the Borrower and
Delta as promptly as practicable of any event that will lead to the conversion
of LIBOR Advances to Base Rate Advances under this Section 3.10. The Liquidity
Provider agrees to investigate all commercially reasonable alternatives for
avoiding the need for such conversion, including, without limitation,
designating a different Lending Office, if such designation or other action
would avoid the need to convert such LIBOR Advances to Base Rate Advances;
provided, that the foregoing shall not obligate the Liquidity Provider to take
any action that would, in its reasonable judgment, cause the Liquidity Provider
to incur any material loss or cost, unless the Borrower or Delta agrees to
reimburse the Liquidity Provider therefor. If no such designation or other
action is effected, or, if effected, fails to avoid the need for conversion of
the LIBOR Advances to Base Rate Advances, Delta may arrange for a Replacement
Liquidity Facility in accordance with Section 3.06(e) of the Intercreditor
Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied (or waived by the appropriate party or parties):
(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 (other than the Liquidity Provider);
(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-2 Certificates;
(v) An executed copy of each document, instrument, certificate
and opinion delivered on or before the Closing Date pursuant to the
Class G-2 Trust Agreement, the Intercreditor Agreement and the other
Operative Agreements (in the case of each such opinion, 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); and
(vi) An agreement from Delta, pursuant to which (x) Delta
agrees to provide copies of quarterly financial statements and
audited annual financial statements to the Liquidity Provider (which
Delta may provide in an electronic format by electronic mail or
making such available over the internet) and (y) Delta agrees to
allow the Liquidity Provider to discuss the transactions
contemplated by the Operative Agreements with officers and employees
of Delta.
(b) On and as of the Effective Date no event shall have occurred and
be 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 filings referred to in Sections 3.01(d) and 3.01(f) of the
Participation Agreements shall have been filed (or shall be in the process
of being filed).
(d) The Liquidity Provider shall have received payment in full of
the fees and other sums required to be paid to or for the account of the
Liquidity Provider on or prior to the Effective Date pursuant to the Fee
Letter.
(e) All conditions precedent to the issuance of the Certificates
under the Trust Agreement shall have been satisfied or waived, all
conditions precedent to the effectiveness of the other Liquidity
Facilities shall have been satisfied or waived, and all conditions
precedent to the purchase of the Certificates by the Underwriters under
the Underwriting Agreement shall have been satisfied (unless any of such
conditions precedent under the Underwriting Agreement shall have been
waived by the Underwriters), and all conditions precedent to the purchase
of the Class D Certificates by the Initial Class D Holder shall have been
satisfied.
(f) The Borrower and Delta shall have received a certificate, dated
the Effective Date signed by a duly authorized representative of the
Liquidity Provider, certifying that all conditions precedent specified in
this Section 4.01 have been satisfied or waived by the Liquidity Provider.
Section 4.02. Conditions Precedent to Borrowing. The obligation of the
Liquidity Provider to make an Advance on the occasion of each Borrowing shall be
subject to the conditions precedent that the Effective Date shall have occurred
and, prior to the time of such Borrowing, the Borrower shall have delivered a
Notice of Borrowing which conforms to the terms and conditions of this
Agreement.
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower. So long as any
Advance shall remain unpaid or the Liquidity Provider shall have any Maximum
Commitment hereunder or the Borrower shall have any obligation to pay any amount
to the Liquidity Provider hereunder, the Borrower will, unless the Liquidity
Provider shall otherwise consent in writing:
(a) Performance of Agreements. Punctually pay or cause to be paid
all amounts payable by it under this Agreement and the Intercreditor
Agreement and observe and perform in all material respects the conditions,
covenants and requirements applicable to it contained in this Agreement
and the Intercreditor Agreement.
(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, copies of such Operative Agreements entered
into after the date hereof as from time to time may be reasonably
requested by the Liquidity Provider.
Section 5.02. Negative Covenants of the Borrower. Subject to the first and
fourth paragraphs of Section 7.01(a) of the Intercreditor Agreement and Section
7.01(b) of the Intercreditor Agreement, so long as any Advance shall remain
unpaid or the Liquidity Provider shall have any Maximum Commitment hereunder or
the Borrower shall have any obligation to pay any amount to the Liquidity
Provider hereunder, the Borrower will not appoint or permit or suffer to be
appointed any successor Borrower without the prior written consent of the
Liquidity Provider, which consent shall not be unreasonably withheld or delayed.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default. If (a) any Liquidity Event of
Default has occurred and is continuing and (b) there is a Performing Note
Deficiency, the Liquidity Provider may, in its discretion, deliver to the
Borrower a Termination Notice, the effect of which shall be to cause (i) this
Agreement to expire at the close of business 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 3.06(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, all Advances, 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. No Oral Modifications or Continuing Waivers. No terms or
provisions of this Agreement may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the Borrower and the
Liquidity Provider and any other Person whose consent is required pursuant to
this Agreement; provided that no such change or other action relating to payment
terms (including timing of any payments) shall affect the payment obligations of
Delta without Delta's prior written consent and any such change or other action
relating to payment terms (including timing of any payments) that would
adversely affect the interests of the Policy Provider shall require the consent
of the Policy Provider; and any waiver of the terms hereof shall be effective
only in the specific instance and for the specific purpose given.
Section 7.02. Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all notices, requests, demands, authorizations, directions,
consents, waivers or documents required or permitted under the terms and
provisions of this Agreement shall be in English and in writing, and given by
United States registered or certified mail, courier service or facsimile, and
any such notice shall be effective when delivered (or, if delivered by
facsimile, upon completion of transmission and confirmation by the sender (by a
telephone call to a representative of the recipient or by machine confirmation)
that such transmission was received) addressed as follows:
If to the Borrower, to:
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Liquidity Provider, to:
WESTDEUTSCHE LANDESBANK GIROZENTRALE
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Transportation Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
WESTDEUTSCHE LANDESBANK GIROZENTRALE
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Loan Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Any party, by notice to the other party hereto, may designate additional
or different addresses for subsequent notices or communications. Whenever the
words "notice" or "notify" or similar words are used herein, they mean the
provision of formal notice as set forth in this Section 7.02.
Section 7.03. No Waiver; Remedies. No failure on the part of the Liquidity
Provider to exercise, and no delay in exercising, any right under this Agreement
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right under this Agreement preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
Section 7.04. Further Assurances. The Borrower agrees to do such further
acts and things and to execute and deliver to the Liquidity Provider such
additional assignments, agreements, powers and instruments as the Liquidity
Provider may reasonably require or deem advisable to carry into effect the
purposes of this Agreement and the other Operative Agreements or to better
assure and confirm unto the Liquidity Provider its rights, powers and remedies
hereunder and under the other Operative Agreements.
Section 7.05. Indemnification; Survival of Certain Provisions. The
Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Section 4.02 of the Participation Agreements. In addition,
the Borrower agrees to indemnify, protect, defend and hold harmless each
Liquidity Indemnitee from and against all Expenses of any kind or nature
whatsoever (other than any Expenses of the nature described in Sections 3.01 or
7.07 or in the Fee Letter (regardless of whether indemnified against pursuant to
said Sections or in such Fee Letter)), that may be imposed on or incurred by
such Liquidity Indemnitee, in any way relating to, resulting from, or arising
out of or in connection with, any action, suit or proceeding by any third party
against such Liquidity Indemnitee and relating to this Agreement, the Fee
Letter, the Intercreditor Agreement or any Participation 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
negligence or willful misconduct of such Liquidity Indemnitee or any other
Liquidity Indemnitee, (ii) an ordinary and usual operating overhead expense,
(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 Fee Letter or any other Operative Agreement to which it is a
party or (iv) otherwise excluded from the indemnification provisions contained
in Section 4.02 of the Participation Agreements. The provisions of Sections
3.01, 3.03, 3.09, 7.05 and 7.07 and the indemnities contained in Section 4.02 of
the Participation Agreements 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 or directors shall be
liable or responsible for: (i) the use which may be made of the Advances or any
acts or omissions of the Borrower or any beneficiary or transferee in connection
therewith; (ii) the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in any or all
respects invalid, insufficient, fraudulent or forged; or (iii) the making of
Advances by the Liquidity Provider against delivery of a Notice of Borrowing and
other documents which do not comply with the terms hereof; provided, however,
that the Borrower shall have a claim against the Liquidity Provider, and the
Liquidity Provider shall be liable to the Borrower, to the extent of any damages
suffered by the Borrower that were the result of (A) the Liquidity Provider's
willful misconduct or gross negligence in determining whether documents
presented hereunder comply with the terms hereof or (B) any breach by the
Liquidity Provider of any of the terms of this Agreement or the Intercreditor
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 complying with the terms and conditions hereof.
(b) Neither the Liquidity Provider nor any of its officers, employees or
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. Certain Costs and Expenses. The Borrower agrees promptly to
pay, or cause to be paid, (a) the reasonable fees, expenses and disbursements of
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel for the Liquidity Provider,
in connection with the preparation, negotiation, execution, delivery, filing and
recording of the Operative Agreements, any waiver or consent thereunder or any
amendment thereof and (b) if a Liquidity Event of Default occurs, all
out-of-pocket expenses incurred by the Liquidity Provider, including reasonable
fees and disbursements of counsel, in connection with such Liquidity Event of
Default and any collection, bankruptcy, insolvency and other enforcement
proceedings in connection therewith. In addition, the Borrower shall pay any and
all recording, stamp and other similar taxes and fees payable or determined to
be payable in the United States 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 permitted 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, pledge or otherwise transfer its rights or obligations hereunder or any
interest herein, subject to the Liquidity Provider's right to grant
Participations pursuant to Section 7.08(b).
(b) The Liquidity Provider agrees that it will not grant any participation
(including, without limitation, a "risk participation") (any such participation,
a "Participation") in or to all or a portion of its rights and obligations
hereunder or under the other Operative Agreements, unless all of the following
conditions are satisfied: (i) such Participation is to a Permitted Transferee,
(ii) such Participation is made in accordance with all applicable laws,
including, without limitation, the Securities Act of 1933, as amended, the Trust
Indenture Act of 1939, as amended, and any other applicable laws relating to the
transfer of similar interests and (iii) such Participation shall not be made
under circumstances that require registration under the Securities Act of 1933,
as amended, or qualification of any indenture under the Trust Indenture Act of
1939, as amended. Notwithstanding any such Participation, the Liquidity Provider
agrees that (1) the Liquidity Provider's obligations under the Operative
Agreements shall remain unchanged, and such participant shall have no rights or
benefits as against Delta or the Borrower or under any Operative Agreement, (2)
the Liquidity Provider shall remain solely responsible to the other parties to
the Operative Agreements for the performance of such obligations, (3) the
Liquidity Provider shall remain the maker of any Advances, and the other parties
to the Operative Agreements shall continue to deal solely and directly with the
Liquidity Provider in connection with the Advances and the Liquidity Provider's
rights and obligations under the Operative Agreements, (4) the Liquidity
Provider shall be solely responsible for any withholding Taxes or any filing or
reporting requirements relating to such Participation and shall hold the
Borrower and Delta and their respective successors, permitted assigns,
affiliates, agents and servants harmless against the same and (5) neither Delta
nor the Borrower shall be required to pay to the Liquidity Provider any amount
under Section 3.01 or Section 3.03 greater than it would have been required to
pay had there not been any grant of a Participation by the Liquidity Provider.
The Liquidity Provider may, in connection with any Participation or proposed
Participation pursuant to this Section 7.08(b), disclose to the participant or
proposed participant any information relating to the Operative Agreements or to
the parties thereto furnished to the Liquidity Provider thereunder or in
connection therewith and permitted to be disclosed by the Liquidity Provider;
provided, however, that prior to any such disclosure, the participant or
proposed participant shall agree in writing for the express benefit of the
Borrower and Delta to preserve the confidentiality of any confidential
information included therein (subject to customary exceptions).
(c) Notwithstanding the other provisions of this Section 7.08, the
Liquidity Provider may assign and pledge all or any portion of the Advances
owing to it to any Federal Reserve Bank or the United States Treasury as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank, provided that any payment in respect of such assigned Advances made by the
Borrower to the Liquidity Provider in accordance with the terms of this
Agreement shall satisfy the Borrower's obligations hereunder in respect of such
assigned Advance to the extent of such payment. No such assignment shall release
the Liquidity Provider from its obligations hereunder.
Section 7.09. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 7.10. Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN THE
STATE OF NEW YORK AND THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of
Immunity. (a) Each of the parties hereto, to the extent it may do so under
applicable law, for purposes hereof hereby (i) irrevocably submits itself to the
non-exclusive jurisdiction of the courts of the State of New York sitting in the
City of New York and to the non-exclusive jurisdiction of the United States
District Court for the Southern District of New York, for the purposes of any
suit, action or other proceeding arising out of this Agreement, the subject
matter hereof or any of the transactions contemplated hereby brought by any
party or parties hereto or thereto, or their successors or permitted assigns and
(ii) waives, and agrees not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper or that this Agreement or the subject matter
hereof or any of the transactions contemplated hereby may not be enforced in or
by such courts.
(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.
(c) The Liquidity Provider hereby waives any immunity it may have from the
jurisdiction of the courts of the United States or of any state thereof and
waives any immunity any of its properties located in the United States may have
from attachment or execution upon a judgment entered by any such court under the
United States Foreign Sovereign Immunities Act of 1976 or any similar successor
legislation.
Section 7.12. Counterparts. This Agreement may be executed in any number
of counterparts (and each party shall not be required to execute the same
counterpart). Each counterpart of this Agreement including a signature page or
pages executed by each of the parties hereto shall be an original counterpart of
this Agreement, but all of such counterparts together shall constitute one
instrument.
Section 7.13. Entirety. This Agreement and the Intercreditor Agreement
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof and supersede all prior understandings and agreements of
such parties.
Section 7.14. Headings. The headings of the various Articles and Sections
herein and in the Table of Contents hereto are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
Section 7.15. Liquidity Provider's Obligation to Make Advances. EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE LIQUIDITY PROVIDER
TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO DELIVER NOTICES OF
BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL BE ABSOLUTE,
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-2 Trust, as
Borrower
By: ____________________________________
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH, as Liquidity Provider
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
ANNEX I to
REVOLVING CREDIT AGREEMENT
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower
(the "Borrower"), hereby certifies to Westdeutsche Landesbank Girozentrale, New
York Branch (the "Liquidity Provider"), with reference to the Revolving Credit
Agreement (2002-1G-2), dated as of April 30, 2002, between the Borrower and the
Liquidity Provider (the "Liquidity Agreement"; the terms defined therein and not
otherwise defined herein being used herein as therein defined or referenced),
that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of an Interest Advance by the Liquidity Provider to be used for the
payment of the interest on the Class G-2 Certificates which is payable on
____________, ____ (the "Distribution Date") in accordance with the terms
and provisions of the Class G-2 Trust Agreement and the Class G-2
Certificates, which Advance is requested to be made on ____________, ____.
The Interest Advance should be remitted to [insert wire and account
details].
(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-2 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-2 Certificates, the
Class G-1 Certificates, the Class C Certificates, the Class D
Certificates, or interest on the Class G-1 Certificates or the Class C
Certificates, or the Class D Certificates (iii) was computed in accordance
with the provisions of the Class G-2 Certificates, or the Class G-2 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) takes into account any amounts received
in respect of any Series G-2 Equipment Note with respect of which a Policy
Provider Election has been made 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 3.06(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 Certificate and such
reduction shall automatically result in corresponding reductions in the amounts
available to be borrowed pursuant to a subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, 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
subordination agent (the "Borrower"), hereby certifies to Westdeutsche
Landesbank Girozentrale, New York Branch (the "Liquidity Provider"), with
reference to the Revolving Credit Agreement (2002-1G-2), dated as of April 30,
2002, 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-2 Cash Collateral Account in accordance
with Section 3.06(d) of the Intercreditor Agreement, which Advance is
requested to be made on __________, ____. The Non-Extension Advance should
be remitted to [insert wire and account details].
(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-2 Cash Collateral Account in accordance with Sections 3.06(d) and
3.06(f) 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-2 Certificates, or principal of, or interest or premium on, the Class
G-1 Certificates, the Class C Certificates or the Class D Certificates,
(iii) was computed in accordance with the provisions of the Class G-2
Certificates, the Class G-2 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-2 Cash Collateral Account and apply the same in accordance with the
terms of Sections 3.06(d) and 3.06(f) 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, 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
subordination agent (the "Borrower"), hereby certifies to Westdeutsche
Landesbank Girozentrale, New York Branch (the "Liquidity Provider"), with
reference to the Revolving Credit Agreement (2002-1G-2), dated as of April 30,
2002, 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-2 Cash Collateral Account in accordance with
Section 3.06(c) of the Intercreditor Agreement by reason of the
downgrading of the short-term rating or long-term 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 remitted to [insert wire and account details].
(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-2 Cash Collateral Account in accordance with Sections 3.06(c) and
3.06(f) 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-2 Certificates, or principal of, or interest or premium on, the Class
G-1 Certificates, the Class C Certificates, or the Class D Certificates,
(iii) was computed in accordance with the provisions of the Class G-2
Certificates, the Class G-2 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-2 Cash Collateral Account and apply the same in accordance with the
terms of Sections 3.06(c) and 3.06(f) 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, 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 Westdeutsche Landesbank Girozentrale, New
York Branch (the "Liquidity Provider"), with reference to the Revolving Credit
Agreement (2002-1G-2), dated as of April 30, 2002, 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-2 Cash Collateral Account in accordance with
Section 3.06(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 remitted to [insert
wire and account details].
(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-2 Cash Collateral Account in accordance with Sections 3.06(f) and
3.06(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-2
Certificates, or principal of, or interest or premium on, the Class G-1
Certificates, the Class C Certificates or the Class D Certificates, (iii)
was computed in accordance with the provisions of the Class G-2
Certificates, the Class G-2 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-2 Cash Collateral Account and apply the same in accordance with the
terms of Sections 3.06(f) and 3.06(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]*.]
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, as
Subordination Agent, as Borrower
By: ____________________________________
Name:
Title:
[* 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
225 Asylum Street
▇▇▇▇▇▇▇ Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Re: Revolving Credit Agreement, dated as of April 30, 2002, between State
Street Bank and Trust Company of Connecticut, National Association, as
Subordination Agent, as agent and trustee for the Delta Air Lines Pass
Through Trust 2002-1G-2, as Borrower, and Westdeutsche Landesbank
Girozentrale, New York Branch (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 and continuance 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 at the close of business 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 3.06(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 AT THE
CLOSE OF BUSINESS ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU RECEIVE
THIS NOTICE.
Very truly yours,
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH, as Liquidity Provider
By: ____________________________________
Name:
Title:
cc: State Street Bank and Trust Company of Connecticut,
National Association, as Class G-2 Trustee
ANNEX VI to
REVOLVING CREDIT AGREEMENT
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Re: Revolving Credit Agreement, dated as of April 30, 2002, between State
Street Bank and Trust Company of Connecticut, National Association, as
Subordination Agent, as agent and trustee for the Delta Airlines Pass
Through Trust 2002-1G-2, as Borrower, and Westdeutsche Landesbank
Girozentrale, New York Branch (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 7.01 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.
This transfer shall be effective as of [specify time and date].
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By: ____________________________________
Name:
Title: