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Exhibit 4.12
IRREVOCABLE REVOLVING CREDIT AGREEMENT
CLASS C CERTIFICATES
Dated as of June __, 1997
between
FLEET NATIONAL BANK,
as Subordination Agent,
as agent and trustee for the
America West Airlines Pass Through Trust 1997-1C,
as Borrower
and
KREDIETBANK N.V.,
NEW YORK BRANCH,
as Liquidity Provider
Relating to
America West Airlines Pass Through Trust 1997-1C
[_._]% America West Airlines Pass Through Certificates,
Series 1997-1C
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT . . . . . . . . . . . . . . . . . . . 5
Section 2.1 The Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.2 Making the Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.3 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.4 Reduction or Termination of the
Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.5 Repayments of Interest Advances or the
Final Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.6 Repayments of Downgrade Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.7 Payments to the Liquidity Provider Under
the Intercreditor Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.8 Book Entries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.9 Payments from Available Funds Only . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE III
OBLIGATIONS OF THE BORROWER . . . . . . . . . . . . . . . . . . . . . 10
Section 3.1 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.2 Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.3 Payments Free of Deductions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 3.4 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 3.5 Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.6 Payment on Non-Business Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.7 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.8 Replacement of Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.9 Funding Loss Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.10 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE IV
CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.1 Conditions Precedent to Effectiveness of
Section 2.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.2 Conditions Precedent to Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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ARTICLE V
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.1 Affirmative Covenants of the Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.2 Negative Covenants of the Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VI
FINAL ADVANCE . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.1 Final Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VII
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 7.1 Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 7.2 Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 7.3 No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 7.4 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 7.5 Indemnification; Survival of Certain
Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 7.6 Liability of the Liquidity Provider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 7.7 Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 7.8 Binding Effect; Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 7.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.10 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.11 Submission to Jurisdiction; Waiver of
Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.12 Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.13 Entirety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.14 Headings; Section References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.15 LIQUIDITY PROVIDER'S OBLIGATION TO MAKE
ADVANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Annex I - Interest Advance Notice of Borrowing
Annex II - Downgrade Advance Notice of Borrowing
Annex III - Notice of Automatic Reduction of Commitment
Annex IV - Notice of Replacement Borrower
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IRREVOCABLE REVOLVING CREDIT AGREEMENT
CLASS C CERTIFICATES
IRREVOCABLE REVOLVING CREDIT AGREEMENT, CLASS C CERTIFICATES
dated as of June __, 1997 between FLEET NATIONAL BANK, a national banking
association, not in its individual capacity but solely as Subordination Agent
under the Intercreditor Agreement (each as defined below), as agent and trustee
for the Class C Trust (as defined below) (the "Borrower"), and KREDIETBANK,
N.V., acting through its New York Branch (the "Liquidity Provider").
W I T N E S S E T H
WHEREAS, pursuant to the Class C Trust Agreement (such term
and all other capitalized terms used in these recitals having the meanings set
forth or referred to in Section 1.1), the Class C Trust is issuing the Class C
Certificates; and
WHEREAS, the Borrower, in order to support the timely payment
of a portion of the interest on the Class C Certificates in accordance with
their terms, has requested the Liquidity Provider to enter into this Agreement,
providing in part for the Borrower to request in specified circumstances that
advances be made hereunder.
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms. (a) Definitions. As
used in this Agreement and unless otherwise expressly indicated, or unless the
context clearly requires otherwise, the following capitalized terms shall have
the following respective meanings for all purposes of this Agreement:
"Advance" means an Interest Advance, a Final Advance or a
Downgrade Advance, as the case may be.
"Applicable Liquidity Rate" means the rates of interest
specified in Section 3.7 with respect to any Advance.
"Applicable Margin" means (x) with respect to any Downgrade
Advance (other than an Applied Downgrade Advance) .40% (40 basis points) per
annum and (y) with respect to any other Advance including an Applied Downgrade
Advance 1.5% (150 basis points) per annum.
"Applied Downgrade Advance" means any amount in respect of a
Downgrade Advance withdrawn from the Class C Cash Collateral Account for the
purpose of paying interest on the Class C
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Certificates in accordance with Section 3.6(f) of the Intercreditor Agreement.
"Available Commitment" means, at any time of determination, an
amount equal to (i) the Commitment at such time less (ii) subject to the
proviso contained in the third sentence of Section 2.2(a), the aggregate amount
of each Advance outstanding at such time; provided that following a Downgrade
Advance or a Final Advance, the Available Commitment shall be zero.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be equal to
the higher of (i) the base commercial lending rate announced from time to time
by the Liquidity Provider, or (ii) the rate quoted by the Liquidity Provider,
at approximately 11:00 A.M., New York City time, to dealers in the New York
Federal funds market for overnight offering of dollars by the Liquidity
Provider, for deposit plus .50 of 1 percent (.50%).
"Base Rate Advance" means an Advance that bears interest at a
rate based upon the Base Rate.
"Borrower" has the meaning assigned to such term in the
recital of parties to this Agreement.
"Borrowing" means the making of Advances requested by delivery
of a Notice of Borrowing or pursuant to Section 6.1.
"Business Day" means any day other than a Saturday or Sunday
or a day on which commercial banks are required or authorized to close in New
York, New York or Hartford, Connecticut, and, if the applicable Business Day
relates to any Advance or other amount bearing interest based on the LIBOR
Rate, on which dealings are carried on in the London interbank market.
"Commitment" means, initially, [$__,___,___] as the same may
be reduced from time to time in accordance with Section 2.4(a).
"Downgrade Advance" means an Advance made pursuant to Section
2.2(b).
"Effective Date" has the meaning specified in Section 4.1.
The delivery of the certificate of the Liquidity Provider contemplated by
Section 4.1(e) shall be conclusive evidence that the Effective Date has
occurred.
"Expenses" means liabilities, obligations, damages,
settlements, penalties, claims, actions, suits, costs, expenses and
disbursements (including, without limitation, reasonable fees
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and disbursements of legal counsel and costs of investigation), provided that
Expenses shall not include any Taxes.
"Expiry Date" means [__], [____].
"Final Advance" means an Advance made pursuant to Sections
2.2(c) and 6.1.
"Intercreditor Agreement" means the Intercreditor Agreement
dated as of the date hereof, among the Trustees, the Liquidity Provider, the
liquidity provider under each Liquidity Facility (other than this Agreement)
and the Subordination Agent, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
"Interest Advance" means an Advance made pursuant to Section
2.2(a).
"Interest Period" means, with respect to any LIBOR Advance,
each of the following periods:
(i) the period beginning on the date such LIBOR
Advance is made (or is converted from a Base Rate Advance) and ending
on the next Regular Distribution Date; and
(ii ) each subsequent period commencing on the last day
of the immediately preceding Interest Period and ending on the next
Regular Distribution Date.
"Lending Office" means the lending office of the Liquidity
Provider, presently located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or
such other lending office as the Liquidity Provider from time to time shall
notify the Borrower as its lending office hereunder.
"LIBOR Advance" means an Advance bearing interest at a rate
based upon the LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period, the
rate per annum at which deposits in Dollars are offered for the relevant
Interest Period by the Liquidity Provider to prime banks in the London
interbank market at approximately 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in the principal amount of the
Advance to which such Interest Period is to apply and for a period of time
comparable to such Interest Period, as quoted by the Liquidity Provider to the
Subordination Agent.
"Liquidity Event of Default" means the occurrence of the
following: all of the Equipment Notes shall have been either declared to be
immediately due and payable or shall not have been paid at their final
maturity. A Liquidity Event of Default shall
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not occur upon an automatic acceleration of the Equipment Notes as a result of
an America West Bankruptcy Event.
"Liquidity Indemnitee" means (i) the Liquidity Provider, (ii)
each affiliate of the Liquidity Provider, (iii) the respective directors,
officers, employees, agents and servants of the Liquidity Provider and its
affiliates, and (iv) the successors and permitted assigns of the persons
described in clauses (i) through (iii), inclusive.
"Liquidity Provider" has the meaning assigned to such term in
the recital of parties to this Agreement.
"Margin" means 0.40% per annum.
"Non-Excluded Tax" has the meaning specified in Section 3.3.
"Notice of Borrowing" has the meaning specified in Section
2.2(d).
"Notice of Replacement Borrower" has the meaning specified in
Section 3.8.
"Participant" has the meaning assigned to such term in Section
7.8(b).
"Prospectus" means the prospectus included in the registration
statement on Form S-3 (File No. 333- _____) filed by America West relating to
certain pass through certificates, as such Prospectus may be amended or
supplemented.
"Related Indemnitee" means, with respect to any Liquidity
Indemnitee, its director, officer, employee, agent, affiliate or employer.
"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 C Certificates, that would be payable on the Class
C 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 C
Certificates on such day and without regard to expected future payments of
principal on the Class C Certificates.
"Termination Date" means the earliest to occur of the
following: (i) the Expiry Date; (ii) the date on which the Borrower delivers to
the Liquidity Provider a certificate, signed by a Responsible Officer of the
Borrower, certifying that all of
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the Class C Certificates have been paid in full (or provision has been made for
such payment in accordance with the Intercreditor Agreement and the Trust
Agreements) or are otherwise no longer entitled to the benefits of this
Agreement; (iii) the date on which the Borrower delivers to the Liquidity
Provider a certificate, signed by a Responsible Officer of the Borrower,
certifying that a Replacement Liquidity Facility has been substituted for this
Agreement in full pursuant to Section 3.6(e) of the Intercreditor Agreement;
(iv) the date on which the Liquidity Provider makes the Final Advance; and (v)
the date on which no Advance is or may (including by reason of reinstatement as
herein provided) become available for a Borrowing hereunder.
"Unpaid Advance" has the meaning assigned to such term in
Section 2.5.
(b) Terms Defined in the Intercreditor Agreement. For all
purposes of this Agreement, the following terms shall have the respective
meanings assigned to such terms in the Intercreditor Agreement:
"America West", "America West Bankruptcy Event", "Certificates",
"Class A Certificates", "Class B Certificates", "Class C
Certificates", "Class C Certificateholders", "Class C Cash Collateral
Account", "Class C Trust", "Class C Trust Agreement", "Class C
Trustee", "Class D Certificates", "Closing Date", "Controlling Party",
"Distribution Date", "Dollars or $", "Equipment Notes", "Indenture",
"Investment Earnings", "Lease", "Liquidity Facility", "▇▇▇▇▇'▇",
"Operative Agreements", "Performing Equipment Note", "Performing Note
Deficiency", "Person", "Pool Balance", "Rating Agency", "Refunding
Agreement", "Regular Distribution Date", "Replacement Liquidity
Facility", "Responsible Officer", "Scheduled Payment", "Special
Payment", "Standard & Poor's", "Stated Interest Rate", "Subordination
Agent", "Taxes", "Threshold Rating", "Triggering Event", "Trust",
"Trust Agreements", "Trustee", "Underwriters", "Underwriting
Agreement", and "Written Notice".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.1 The Advances. The Liquidity Provider hereby
irrevocably agrees, on the terms and conditions hereinafter set forth, to make
Advances to the Borrower from time 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
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2.4(b)) in an aggregate amount at any time outstanding not to exceed the
Commitment.
Section 2.2 Making the Advances. (a) Interest Advances
shall be made in one or more Borrowings by delivery to the Liquidity Provider
of one or more written and completed Notices of Borrowing in substantially the
form of Annex I attached hereto, signed by a Responsible Officer of the
Borrower, in an amount not exceeding the Available Commitment at such time and
shall be used solely for the payment when due of interest on the Class C
Certificates at the Stated Interest Rate therefor in accordance with Section
3.6(a) of the Intercreditor Agreement. Each Interest Advance made hereunder
shall automatically reduce the Available Commitment and the amount available to
be borrowed hereunder by subsequent Advances by the amount of such Interest
Advance (subject to reinstatement as provided in the next sentence). Upon
repayment to the Liquidity Provider in full of the amount of any Interest
Advance made pursuant to this Section 2.2(a), together with accrued interest
thereon (as provided herein), the Available Commitment shall be reinstated by
the amount of such repaid Interest Advance; provided, however, that the
Available Commitment shall not be so reinstated at any time if (x) both (i) a
Triggering Event shall have occurred and be continuing and (ii) a Performing
Note Deficiency exists or (y) a Liquidity Event of Default shall have occurred
and be continuing.
(b) A Downgrade Advance shall be made in a single Borrowing
upon a downgrading of the rating of the Liquidity Provider resulting in the
Liquidity Provider's ratings not meeting the Threshold Rating (as provided for
in Section 3.6(c) of the Intercreditor Agreement) unless a Replacement
Liquidity Facility shall have been delivered to the Borrower in accordance with
said Section 3.6(c), by delivery to the Liquidity Provider of a written and
completed Notice of Borrowing in substantially the form of Annex II attached
hereto, signed by a Responsible Officer of the Borrower, in an amount not
exceeding the Available Commitment at such time, and shall be used to fund the
Class C Cash Collateral Account in accordance with said Section 3.6(c). The
Liquidity Provider shall promptly notify the Borrower of any downgrade of its
unsecured debt rating by ▇▇▇▇▇'▇ or Standard & Poor's below the applicable
Threshold Rating.
(c) A Final Advance shall be made by the Liquidity Provider
without the necessity for a Notice of Borrowing at the option of the Liquidity
Provider on the occurrence of an event described in Section 6.1(a) or 6.1(b) in
an amount equal to the Available Commitment at such time, and shall be used to
fund the Class C Cash Collateral Account.
(d) Each Borrowing (other than under Section 2.2(c)) shall be
made on notice in writing (a "Notice of Borrowing") in substantially the form
required by Section 2.2(a) or 2.2(b), as
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the case may be, given not later than 12:00 Noon (New York City time) on the
Business Day prior to the day of the proposed Borrowing by the Borrower to the
Liquidity Provider. Upon satisfaction of the conditions precedent set forth in
Section 4.2 with respect to a requested Borrowing, the Liquidity Provider
shall, before 12:00 Noon (New York City time) on the proposed date of such
Borrowing or on such later Business Day specified by the Borrower in such
Notice of Borrowing, make available to the Borrower, in U.S. dollars and in
immediately available funds, the amount of such Borrowing to be paid to the
Borrower in accordance with its payment instructions. If a Notice of Borrowing
is delivered by the Borrower in respect of any Borrowing after 12:00 Noon (New
York City time) on a Business Day, the Liquidity Provider shall, before 12:00
Noon (New York City time) on the second Business Day next following the day of
receipt of such Notice of Borrowing or on such later Business Day specified by
the Borrower in such Notice of Borrowing, make available to the Borrower, in
Dollars and in immediately available funds, the amount of such Borrowing to be
paid to the Borrower in accordance with its payment instructions. Payments of
proceeds of a Borrowing shall be made by wire transfer of immediately available
funds to the Borrower in accordance with such wire transfer instructions as the
Borrower shall furnish from time to time to the Liquidity Provider for such
purpose. Each Notice of Borrowing shall be irrevocable and binding on the
Borrower.
(e) Upon the making of any Advance requested pursuant to a
Notice of Borrowing, in accordance with the Borrower's payment instructions,
the Liquidity Provider shall be fully discharged of its obligation hereunder
with respect to such Notice of Borrowing, and the Liquidity Provider shall not
thereafter be obligated to make any further Advances hereunder in respect of
such Notice of Borrowing to the Borrower or to any other person (including the
holder of any Class C Certificate or the Class C Trustee) who makes to the
Class C Trustee or the Borrower a demand for payment with respect to any Class
C Certificate. By paying to the Borrower proceeds of Advances requested by the
Borrower in accordance with the provisions of this Agreement, the Liquidity
Provider makes no representation as to, and assumes no responsibility for, the
correctness or sufficiency for any purpose of the amount of the Advances so
made and requested.
Section 2.3 Fees. (a) The Borrower agrees to pay to the
Liquidity Provider a fee equal to 0.35% of the Commitment (as in effect on the
Effective Date). Such fee shall be payable on the Effective Date.
(b) The Borrower shall pay, or shall cause to be paid, to the
Liquidity Provider, a fee equal to 0.40% per annum on the average Available
Commitment from the Effective Date to the earlier of the date on which a
Downgrade Advance is made and the
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Termination Date. Such fee shall be payable in arrears on each Regular
Distribution Date. Nothing contained in this Section 2.3 shall require the
Borrower to pay any amount under this Section 2.3 other than to the extent the
Borrower shall have funds available therefor.
Section 2.4 Reduction or Termination of the Commitment. (a)
Automatic Reductions. Promptly following each date on which the Required
Amount is reduced as a result of a reduction in the Pool Balance of the Class C
Certificates or otherwise, the Commitment shall automatically be reduced to an
amount equal to such reduced Required Amount (as calculated by the Borrower).
The Borrower shall give notice of any such automatic reduction of the
Commitment (substantially in the form of Annex III hereto) to the Liquidity
Provider (with a copy to America West) within two Business Days thereof. The
failure by the Borrower to furnish any such notice shall not affect such
automatic reduction of the Commitment.
(b) Termination. Upon the making of any Downgrade Advance or
Final Advance hereunder or the occurrence of the Termination Date, the
obligation of the Liquidity Provider to make further Advances hereunder shall
automatically and irrevocably terminate, and the Borrower shall not be entitled
to request any further Borrowing hereunder.
Section 2.5 Repayments of Interest Advances or the Final
Advance. Subject to Sections 2.7 and 2.9, the Borrower hereby agrees to pay,
or to cause to be paid, to the Liquidity Provider on each date on which the
Liquidity Provider shall make an Interest Advance or the Final Advance, an
amount equal to (a) the amount of such Interest Advance or the Final Advance
(any such Interest Advance or the Final Advance, until repaid, is referred to
herein as an "Unpaid Advance"), plus (b) interest on the amount of each such
Unpaid Advance as provided in Section 3.7. Subject to Sections 2.6, 2.7 and
2.9, unless otherwise waived by the Liquidity Provider, the Borrower shall be
obligated, without notice of an Advance or demand for repayment from the
Liquidity Provider (which notice and demand are hereby waived by the Borrower),
to repay the Liquidity Provider for all Interest Advances and Final Advances on
the same day as made and all Applied Downgrade Advances on the same day they
become Applied Downgrade Advances. The Borrower and the Liquidity Provider
agree that the repayment in full of each Interest Advance and the Final Advance
on the date such Interest Advance or the Final Advance is made and each Applied
Downgrade Advance on the date it becomes an Applied Downgrade Advance is
intended to be a contemporaneous exchange for new value given to the Borrower
by the Liquidity Provider.
Section 2.6 Repayments of Downgrade Advances. (a) Amounts
advanced hereunder in respect of a Downgrade Advance
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shall be deposited in the Class C Cash Collateral Account, and invested and
withdrawn from the Class C Cash Collateral Account, as set forth in Sections
3.6(c), (e) and (f) of the Intercreditor Agreement. The Borrower agrees to pay
to the Liquidity Provider, on each Regular Distribution Date, commencing on the
first Regular Distribution Date after the making of a Downgrade Advance,
interest on the principal amount of any such Downgrade Advance as provided in
Section 3.7. Immediately upon the withdrawal of any amounts from the Class C
Cash Collateral Account on account of a reduction in the Required Amount, the
Borrower shall repay the Downgrade Advance in a principal amount equal to the
amount of such reduction, plus interest on the principal amount repaid as
provided in Section 3.7.
(b) Upon the provision of a Replacement Liquidity Facility in
replacement of this Agreement in accordance with Section 3.6(e) of the
Intercreditor Agreement, and prior to the effectiveness of any Replacement
Liquidity Facility, the Borrower agrees that all amounts owing to the Liquidity
Provider shall be repaid in full, whether from advances made by the Replacement
Liquidity Provider, from amounts remaining on deposit in the Class C Cash
Collateral Account after giving effect to any application of funds therefrom to
any payment of interest on the Class C Certificates on the date of such
replacement, or otherwise.
Section 2.7 Payments to the Liquidity Provider Under the
Intercreditor Agreement. In order to provide for payment or repayment to the
Liquidity Provider of any amounts hereunder, the Intercreditor Agreement
provides that amounts available and referred to in Articles II and III of the
Intercreditor Agreement, to the extent payable to the Liquidity Provider
pursuant to the terms of the Intercreditor Agreement (including, without
limitation, Section 3.6(f) of the Intercreditor Agreement), shall be paid to
the Liquidity Provider in accordance with the terms thereof. Amounts so paid
to the Liquidity Provider shall be applied by the Liquidity Provider in the
order of priority required by the applicable provisions of Articles II and III
of the Intercreditor Agreement.
Section 2.8 Book Entries. The Liquidity Provider shall
maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower resulting from Advances made from
time to time and the amounts of principal and interest payable hereunder and
paid from time to time in respect thereof; provided, however, that the failure
by the Liquidity Provider to maintain such account or accounts shall not affect
the obligations of the Borrower in respect of Advances.
Section 2.9 Payments from Available Funds Only. All payments
to be made by the Borrower under this Agreement shall be made only from amounts
received by it that constitute Scheduled
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Payments or Special Payments and only to the extent that the Borrower shall
have sufficient income or proceeds therefrom to enable the Borrower to make
payments in accordance with the terms hereof after giving effect to the
priority of payments provisions set forth in the Intercreditor Agreement. The
Liquidity Provider agrees that it will look solely to such amounts to the
extent available for distribution to it as provided in the Intercreditor
Agreement and this Agreement and that the Borrower, in its individual capacity,
is not personally liable to it for any amounts payable or liability under this
Agreement except as expressly provided in this Agreement, the Intercreditor
Agreement or any Refunding Agreement. Amounts on deposit in the Class C Cash
Collateral Account shall be available to make payments only to the extent and
for the purposes expressly contemplated in Section 3.6(f) of the Intercreditor
Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.1 Increased Costs. If the Liquidity Provider shall
determine that (a) any change in any law or regulation or in the interpretation
thereof by any court or administrative or governmental authority charged with
the administration thereof or in the compliance by the Liquidity Provider (or
its head office) with any applicable direction, request or requirement (whether
or not having the force of law) of any central bank or competent governmental
or other authority shall either (i) impose, modify or deem applicable any
reserve, special deposit or similar requirement against assets held by, or
deposits in or for the account of, or loans made by, the Liquidity Provider, or
(ii) impose on the Liquidity Provider any other condition regarding this
Agreement or any Advance, or (iii) change the basis of taxation of any amounts
payable to the Liquidity Provider (other than Taxes imposed on the overall net
or gross income of the Liquidity Provider) and (b) the result of any event
referred to in the preceding clause (i), (ii) or (iii) shall be to increase the
cost to the Liquidity Provider of issuing or maintaining its commitment or
funding or maintaining Advances (which increase in cost shall be determined by
the Liquidity Provider's reasonable allocations of the aggregate of such cost
increases resulting from such event) or to reduce the amount of any sum
received or receivable by the Liquidity Provider under this Agreement with
respect thereto, then, no later than 30 days after demand by the Liquidity
Provider, the Borrower shall pay, or cause to be paid, to the Liquidity
Provider, from time to time as specified by the Liquidity Provider, additional
amounts which shall be sufficient to compensate the Liquidity Provider for such
increased cost or reduction. A certificate as to such increased cost or
reduction incurred by the Liquidity Provider as a result of any event mentioned
in clause (i), (ii) or (iii) above, prepared in
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reasonable detail and submitted by the Liquidity Provider to the Borrower,
shall be conclusive, absent manifest error, as to the amount thereof.
The Liquidity Provider agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Lending Office if making such change would avoid
the need for, or reduce the amount of, any amount payable under this Section
3.1 that may thereafter accrue and would not, in the reasonable judgment of the
Liquidity Provider, be otherwise disadvantageous in any material respect to the
Liquidity Provider.
Section 3.2 Capital Adequacy. If the Liquidity Provider
shall determine that the adoption after the date hereof of any applicable law,
rule or regulation regarding capital adequacy, or any change therein, or any
change after the date hereof in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance after the date hereof
by the Liquidity Provider (or its head office) with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, is generally applicable to all
banks domiciled in Belgium with branches in the United States and not related
to the financial condition of the Liquidity Provider and has the effect of
reducing the rate of return on the Liquidity Provider's capital as a
consequence of issuing or maintaining its commitment hereunder or its funding
or maintaining Advances to a level below that which the Liquidity Provider
could have achieved but for such adoption, change or compliance (taking into
consideration the Liquidity Provider's policies with respect to capital
adequacy) by an amount deemed by the Liquidity Provider to be material, then,
no later than 30 days after demand by the Liquidity Provider, the Borrower
shall pay to the Liquidity Provider, from time to time as specified by the
Liquidity Provider, additional amounts which shall be sufficient to compensate
the Liquidity Provider for such reduction in respect of issuing or maintaining
its commitment hereunder or its funding or maintaining Advances. A certificate
as to such additional amount describing the event which has the effect of
reducing the rate of return on the Liquidity Provider's capital, prepared in
reasonable detail and submitted by the Liquidity Provider to the Borrower,
shall be conclusive, absent manifest error, as to the amount thereof.
The Liquidity Provider agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Lending Office if making such change would avoid
the need for, or reduce the amount of, any amount payable under this Section
3.2 that may thereafter accrue and would not, in the reasonable judgment of the
Liquidity
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Provider, be otherwise disadvantageous in any material respect to the Liquidity
Provider. The Liquidity Provider further agrees that no amounts shall be
payable under this Section 3.2 unless the Liquidity Provider is charging its
other borrowers with whom it has agreements similar to this agreement the
amounts that are payable to the Liquidity Provider under this Section 3.2.
Section 3.3 Payments Free of Deductions. All payments made
by the Borrower under this Agreement shall be made free and clear of, and
without reduction for or on account of, any present or future stamp or other
taxes, levies, imposts, duties, charges, fees, deductions, withholdings,
restrictions or conditions of any nature whatsoever now or hereafter imposed,
levied, collected, withheld or assessed, excluding any Taxes imposed on the
overall net income of the Liquidity Provider and excluding United States
federal income tax withholding to the extent such withholding is, or would be,
actually imposed upon payments to the Liquidity Provider as of the date of this
Agreement (such non-excluded taxes being referred to herein, collectively, as
"Non-Excluded Taxes" and, individually, as a "Non-Excluded Tax"). If any
Non-Excluded Taxes are required to be withheld from any amounts payable to the
Liquidity Provider under this Agreement, the amounts so payable to the
Liquidity Provider shall be increased to the extent necessary to yield to the
Liquidity Provider (after payment of all Non-Excluded Taxes and taxes imposed
on the receipt of such increase) interest or any other such amounts payable
under this Agreement at the rates or in the amounts specified in this
Agreement. Whenever any Non-Excluded Tax is payable by the Borrower, promptly
thereafter the Borrower shall send the Liquidity Provider certified copies of
tax receipts evidencing such payment by the Borrower. The Liquidity Provider
agrees to provide to the Borrower on or prior to the Effective Date, and from
time to time thereafter prior to the expiration of the effectiveness of and
promptly upon the occurrence of any event requiring a change in the most recent
form previously delivered by it (and prior to the immediately following due
date of any payment by the Borrower hereunder), to the extent that the
Liquidity Provider is legally entitled to do so, two original Internal Revenue
Service Form 1001 or 4224, as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that the Liquidity
Provider is completely exempt from United States withholding tax on payments
pursuant to this Agreement.
The Liquidity Provider agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Lending Office if making such change would avoid
the need for, or reduce the amount of, any amount payable under this Section
3.3 that may thereafter accrue and would not, in the reasonable judgment of the
Liquidity Provider, be otherwise disadvantageous in any material respect to the
Liquidity Provider.
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Section 3.4 Payments. The Borrower shall make or cause to be
made each payment to the Liquidity Provider under this Agreement so as to cause
the same to be received by the Liquidity Provider not later than 1:00 P.M.
(New York City time) on the day when due. The Borrower shall make all such
payments in lawful money of the United States of America, to the Liquidity
Provider in immediately available funds, by wire transfer to The Bank of New
York, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ABA No. ▇▇▇-▇▇▇-▇▇▇, for the account
of Kredietbank New York, Account No. [802-▇▇▇▇▇▇▇] (referencing America West
Airlines 1997-1C Liquidity Facility).
Section 3.5 Computations. All computations of interest based
on the Base Rate shall be made on the basis of a year of 365 or 366 days, as
the case may be, and all computations of (x) interest based on the LIBOR Rate
and (y) fees payable to the Liquidity Provider, shall be made on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest is payable.
Section 3.6 Payment on Non-Business Days. Whenever any
payment to be made hereunder (other than a payment on LIBOR Advances) becomes
due and payable on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day and interest thereon shall be payable at
the then applicable rate during such extension. If any payment on a LIBOR
Advance becomes due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day unless
the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day.
Section 3.7 Interest. (a) The Borrower shall pay, or shall
cause to be paid, interest on (i) the unpaid principal amount of each Advance
from and including the date of such Advance to but excluding the date such
principal amount shall be paid in full and (ii) any other amount due hereunder
(whether fees, commissions, expenses or other amounts or, to the extent
permitted by law, installments of interest on Advances or any such other
amount) which is not paid when due (whether at stated maturity, by acceleration
or otherwise) from and including the due date thereof to but excluding the date
such amount is paid in full, in each such case, at a fluctuating interest rate
per annum for each day equal to the Applicable Liquidity Rate for such Advance
for such day, but in no event at a rate per annum greater than the maximum rate
permitted by applicable law; provided, however, that, if at any time the
otherwise applicable interest rate as set forth in this Section 3.7 shall
exceed the maximum rate permitted by applicable law, then any subsequent
reduction in such interest rate will not reduce the rate of interest
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payable pursuant to this Section 3.7 below the maximum rate permitted by
applicable law until the total amount of interest accrued equals the amount of
interest that would have accrued if such otherwise applicable interest rate as
set forth in this Section 3.7 had at all times been in effect. Nothing
contained in this Section 3.7 shall require the Borrower to pay any amount
under this Section 3.7 other than to the extent the Borrower shall have funds
available therefor.
(b) Each Advance will be either a Base Rate Advance or a
LIBOR Advance as provided in this Section. Each such Advance will be a Base
Rate Advance for the period from the date of its borrowing to (but excluding)
the third Business Day following the Liquidity Provider's receipt of the Notice
of Borrowing for such Advance. Thereafter, such Advance shall be a LIBOR
Advance; provided that the Final Advance shall, until repaid in full, be a Base
Rate Advance and the Borrower may not convert the Final Advance into a LIBOR
Advance.
(c) Each Base Rate Advance shall bear interest at a per annum
rate 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).
(d) Each LIBOR Advance shall bear interest during each
Interest Period at a per annum rate 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).
(e) Each amount not paid when due hereunder (whether fees,
commissions, expenses or other amounts or, to the extent permitted by
applicable law, installments of interest on Advances) shall bear interest at
the Base Rate.
(f) Each change in the Base Rate shall become effective
immediately.
Section 3.8 Replacement of Borrower. Subject to Section
5.2(b), from time to time, upon the effective date and time specified in a
written and completed Notice of Replacement Borrower in substantially the form
of Annex IV attached hereto (a "Notice of Replacement Borrower") delivered to
the Liquidity Provider by the then Borrower, the successor Borrower designated
therein shall be substituted for as the Borrower for all purposes hereunder.
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Section 3.9 Funding Loss Indemnification. The Borrower shall
pay to the Liquidity Provider, upon the request of the Liquidity Provider, such
amount or amounts as shall be sufficient (in the reasonable opinion of the
Liquidity Provider) to compensate it for any loss, cost, or expense incurred as
a result of:
(a) Any payment or prepayment of a LIBOR Advance on a date
other than the last day of the Interest Period for such Advance; or
(b) Any failure by the Borrower to borrow a LIBOR Advance on
the date for borrowing specified in the relevant notice under Section
2.2 or 3.7.
Section 3.10 Illegality. Notwithstanding any other provision
in this Agreement, if any change in any applicable law, rule or regulation, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Liquidity Provider (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for the Liquidity Provider (or its Lending Office) to maintain or
fund its LIBOR Advances, then upon notice to the Borrower by the Liquidity
Provider, the outstanding principal amount of the LIBOR Advances shall be
converted to Base Rate Advances (a) immediately upon demand of the Liquidity
Provider, if such change or compliance with such request, in the judgment of
the Liquidity Provider, requires immediate repayment; or (b) at the expiration
of the last Interest Period to expire before the effective date of any such
change or request. In the event any change of the nature described in the
preceding sentence shall make it unlawful or impossible for the Liquidity
Provider (or its Lending Office) to maintain or fund its Base Rate Advances,
the Liquidity Provider shall have the right to cause a Replacement Liquidity
Facility to be substituted for this Agreement, subject to (i) the satisfaction
of the conditions precedent to the effectiveness of, and the other provisions
regarding, a Replacement Liquidity Facility set forth in Section 3.6(e) of the
Intercreditor Agreement and (ii) such Replacement Liquidity Facility and
Replacement Liquidity Provider being reasonably acceptable to America West.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1 Conditions Precedent to Effectiveness of Section
2.1. Section 2.1 of this Agreement shall become effective on and as of the
first date (the "Effective Date") on which the following conditions precedent
have been satisfied or waived:
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(a) The Liquidity Provider shall have received on or before
the Closing Date each of the following, each dated such date (except
for those documents delivered pursuant to paragraphs (v) and (vii) of
this Section 4.1(a)), and each in form and substance satisfactory to
the Liquidity Provider:
(i) This Agreement duly executed on behalf of
the borrower;
(ii) The Intercreditor Agreement duly executed
on behalf of each of the parties thereto;
(iii) Counterparts (or certified copies thereof)
of each of the Operative Agreements (other than this Agreement
and the Intercreditor Agreement) which, when taken together,
bear the signatures of all of the respective parties thereto
and which are in full force and effect in accordance with
their respective terms;
(iv) A copy of the Prospectus and specimen
copies of the Class C Certificates;
(v) Evidence that, on the Effective Date, the
Class A Certificates, the Class B Certificates, the Class C
Certificates and the Class D Certificates will receive
long-term credit ratings from ▇▇▇▇▇'▇ of not lower than A2,
Baa2, Ba1 and Ba3, respectively, and from Standard & Poor's of
not lower than AA-, A-, BBB- and BB, respectively;
(vi) An executed or a certified copy of each
document, instrument, certificate and opinion delivered
pursuant to the Class C Trust Agreement, the Intercreditor
Agreement, the Refunding Agreements and the other Operative
Agreements (together with, in the case of each such opinion
(unless such opinion is addressed to the Liquidity Provider),
other than the opinion of counsel for the Underwriters, a
letter from the counsel rendering such opinion to the effect
that the Liquidity Provider is entitled to rely on such
opinion as if it were addressed to the Liquidity Provider);
(vii) Evidence that there shall have been made
and shall be in full force and effect, all filings, recordings
and/or registrations, and there shall have been given or taken
any notice or other similar action as may be reasonably
necessary or, to the extent reasonably requested by the
Liquidity Provider, reasonably advisable, in order to
establish, perfect, protect and preserve the right, title and
interest,
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remedies, powers, privileges, liens and security interests of,
or for the benefit of, the Trustees and the Liquidity Provider
created by the Operative Agreements;
(viii) Copies of the appraisals included in the
Prospectus;
(ix) A letter from America West agreeing to
provide to the Liquidity Provider the periodic financial
reports referred to in Section 8.04(a) of the Trust
Agreements; and
(x) Such other documents, instruments,
opinions and approvals (and, if requested by the Liquidity
Provider, certified duplicates or executed copies thereof) as
the Liquidity Provider shall have reasonably requested.
(b) The following statements shall be true and shall be
deemed to have been represented by each party (other than clause (ii)
below, which shall be deemed to have been represented only by America
West) to the Refunding Agreements as being true on and as of the
Effective Date:
(i) The representations and warranties of such
Person contained in each Refunding Agreement are true and
correct on and as of the Effective Date as though made on and
as of the Effective Date; and
(ii) No event has occurred and is continuing,
or would result from the entering into of this Agreement or
the making of any Advance, which constitutes a Liquidity Event
of Default.
(c) The Liquidity Provider shall have received payment in
full of all fees and other sums required to be paid to or for the
account of the Liquidity Provider on or prior to the Effective Date.
(d) All conditions precedent to the issuance of the
Certificates under the Trust Agreements shall have been satisfied, all
conditions precedent to the effectiveness of the other Liquidity
Facilities shall have been satisfied, and all conditions precedent to
the purchase of the Certificates by the Underwriters under the
Underwriting Agreement shall have been satisfied (except for any of
such conditions precedent under the Underwriting Agreement that shall
have been waived by the Underwriters).
(e) The Borrower shall have received a certificate, dated the
date hereof, signed by a duly authorized
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representative of the Liquidity Provider, certifying that all
conditions precedent to the effectiveness of Section 2.1 have been
satisfied or waived (other than this Section 4.1(e)).
Section 4.2 Conditions Precedent to Borrowing. The
obligation of the Liquidity Provider to make an Advance on the occasion of each
Borrowing shall be subject to the conditions precedent that the Effective Date
shall have occurred and, except in the case of a Final Advance, prior to the
date of such Borrowing, the Borrower shall have delivered a Notice of Borrowing
which conforms to the terms and conditions of this Agreement and has been
completed as may be required by the relevant form of the Notice of Borrowing
for the type of Advance requested.
ARTICLE V
COVENANTS
Section 5.1 Affirmative Covenants of the Borrower. So long
as any Advance shall remain unpaid or the Liquidity Provider shall have any
Commitment hereunder or the Borrower shall have any obligation to pay any
amount to the Liquidity Provider hereunder, the Borrower will, unless the
Liquidity Provider shall otherwise consent in writing:
(a) Performance of This and Other Agreements. Punctually pay
or cause to be paid all amounts payable by it under this Agreement and
the other Operative Agreements and observe and perform in all material
respects the conditions, covenants and requirements applicable to it
contained in this Agreement and the other Operative Agreements.
(b) Reporting Requirements. Furnish to the Liquidity
Provider with reasonable promptness, such information and data with
respect to the transactions contemplated by the Operative Agreements
as from time to time may be reasonably requested by the Liquidity
Provider; and permit the Liquidity Provider, upon reasonable notice,
to inspect the Borrower's books and records with respect to such
transactions and to meet with officers and employees of the Borrower
to discuss such transactions.
Section 5.2 Negative Covenants of the Borrower. So long as
any Advance shall remain unpaid or the Liquidity Provider shall have any
Commitment hereunder or the Borrower shall have any obligation to pay any
amount to the Liquidity Provider hereunder, the Borrower will not, without the
written consent of the Liquidity Provider:
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(a) Amendments. Modify, amend or supplement, or give any
consent to any modification, amendment, or supplement, or make any
waiver with respect to, any provision of the Trust Agreements or the
Intercreditor Agreement, except for any supplemental agreement to the
Trust Agreements provided for in Section 9.01 thereof.
(b) Borrower. Appoint or permit or suffer to be appointed
any successor Borrower without the prior written approval of the
Liquidity Provider (which approval shall not be unreasonably
withheld).
ARTICLE VI
FINAL ADVANCE
Section 6.1 Final Advance. If (a) both (i) a Triggering
Event shall have occurred and be continuing and (ii) a Performing Note
Deficiency exists or (b) a Liquidity Event of Default shall have occurred and
be continuing, the Liquidity Provider may, in its discretion, make a Final
Advance whereupon (i) the Liquidity Provider shall have no further obligation
to make Advances hereunder, (ii) all other outstanding Advances shall be
automatically converted into Final Advances for purposes of determining the
Applicable Liquidity Rate for interest payable thereon, and (iii) subject to
Sections 2.7 and 2.9, all Advances, any accrued interest thereon and any other
amounts outstanding hereunder shall become immediately due and payable to the
Liquidity Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendments, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Liquidity Provider, and, in the case of an amendment, the
Borrower, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
Section 7.2 Notices, Etc. Except as otherwise expressly
provided herein, all notices and other communications provided for hereunder
shall be in writing (including telecopier and mailed or delivered or sent by
telecopier):
Borrower: Fleet National Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Administration
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Liquidity
Provider: Kredietbank N.V.
New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Manager
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or, as to each of the foregoing, at such other address as shall be designated
by such Person in a written notice to the others. All such notices and
communications shall be effective (i) if given by telecopier, when transmitted
to the telecopier number specified above, (ii) if given by mail, when deposited
in the mails addressed as specified above, and (iii) if given by other means,
when delivered at the address specified above, except that written notices to
the Liquidity Provider pursuant to the provisions of Articles II and III hereof
shall not be effective until received by the Liquidity Provider. A copy of all
notices delivered hereunder to either party shall in addition be delivered to
each of the parties to the Refunding Agreements at their respective addresses
set forth therein.
Section 7.3 No Waiver; Remedies. No failure on the part of
the Liquidity Provider to exercise, and no delay in exercising, any right under
this Agreement shall operate as a waiver thereof; nor shall any single or
partial exercise of any right under this Agreement preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
Section 7.4 Further Assurances. The Borrower agrees to do
such further acts and things and to execute and deliver to the Liquidity
Provider such additional assignments, agreements, powers and instruments as the
Liquidity Provider may reasonably require or deem advisable to carry into
effect the purposes of this Agreement and the other Operative Agreements or to
better assure and confirm unto the Liquidity Provider its rights, powers and
remedies hereunder and under the other Operative Agreements.
Section 7.5 Indemnification; Survival of Certain Provisions.
The Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Sections 10 and 13 of the Lease. In addition, the Borrower
agrees to indemnify, protect, defend and hold harmless the Liquidity Provider
from, against and in respect of, and shall pay on demand, all Expenses of any
kind or nature whatsoever, whether arising before, on or after the date hereof,
that may be imposed, incurred by or asserted against any Liquidity Indemnitee,
in any
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way relating to, resulting from, or arising out of or in connection with, this
Agreement, the Intercreditor Agreement or the Refunding Agreements; provided,
however, that the Borrower shall not be required to indemnify, protect, defend
and hold harmless any Liquidity Indemnitee in respect of any Expense of such
Liquidity Indemnitee (i) to the extent such Expense is attributable to the
gross negligence or willful misconduct of such Liquidity Indemnitee or any
Related Indemnitee, (ii) that is ordinary and usual operating overhead expense
or (iii) to the extent such Expense is attributable to the failure by such
Liquidity Indemnitee or its Related Indemnitee to perform or observe any
agreement, covenant or condition on its part to be performed or observed in any
Operative Agreement. The indemnities contained in such Sections 10 and 13 of
the Lease, and the provisions of Sections 3.1, 3.2, 3.3, 7.5 and 7.7, shall
survive the termination of this Agreement.
Section 7.6 Liability of the Liquidity Provider. (a) Neither
the Liquidity Provider nor any of its officers or directors shall be liable or
responsible for: (i) the use which may be made of the Advances or any acts or
omissions of the Borrower or any beneficiary or transferee in connection
therewith; (ii) the validity, sufficiency or genuineness of documents, or of
any endorsement thereon, even if such documents should prove to be in any or
all respects invalid, insufficient, fraudulent or forged; or (iii) the making
of Advances by the Liquidity Provider against delivery of a Notice of Borrowing
and other documents which do not comply with the terms hereof; provided,
however, that the Borrower shall have a claim against the Liquidity Provider,
and the Liquidity Provider shall be liable to the Borrower, to the extent of
any damages suffered by the Borrower which were the result of (A) the Liquidity
Provider's willful misconduct or negligence in determining whether documents
presented hereunder comply with the terms hereof, or (B) any breach by the
Liquidity Provider of any of the terms of this Agreement, including, but not
limited to, the Liquidity Provider's failure to make lawful payment hereunder
after the delivery to it by the Borrower of a Notice of Borrowing strictly
complying with the terms and conditions hereof.
(b) The Liquidity Provider shall not be liable or responsible
in any respect for (i) any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with this Agreement or any Notice of Borrowing
delivered hereunder, or (ii) any action, inaction or omission which may be
taken by it in good faith, absent willful misconduct or negligence (in which
event the extent of the Liquidity Provider's potential liability to the
Borrower shall be limited as set forth in the immediately preceding paragraph),
in connection with this Agreement or any Notice of Borrowing.
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Section 7.7 Costs, Expenses and Taxes. The Borrower agrees
to pay, or cause to be paid (A) on the Effective Date and on such later date or
dates on which the Liquidity Provider shall make demand, all reasonable out-of-
pocket costs and expenses of the Liquidity Provider in connection with the
preparation, negotiation, execution, delivery, filing and recording of this
Agreement, any other Operative Agreement and any other documents which may be
delivered in connection with this Agreement, including, without limitation, the
reasonable fees and expenses of outside counsel for the Liquidity Provider and
(B) on demand, all reasonable costs and expenses of the Liquidity Provider
(including reasonable counsel fees and expenses) in connection with (i) the
enforcement of this Agreement or any other Operative Agreement, (ii) the
modification or amendment of, or supplement to, this Agreement or any other
Operative Agreement or such other documents which may be delivered in
connection herewith or therewith (whether or not the same shall become
effective) or (iii) any action or proceeding relating to any order, injunction,
or other process or decree restraining or seeking to restrain the Liquidity
Provider from paying any amount under this Agreement, the Intercreditor
Agreement or any other Operative Agreement or otherwise affecting the
application of funds in the Cash Collateral Accounts. In addition, the
Borrower shall pay any and all recording, stamp and other similar taxes and
fees payable or determined to be payable in connection with the execution,
delivery, filing and recording of this Agreement, any other Operative Agreement
and such other documents, and agrees to save the Liquidity Provider harmless
from and against any and all liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes or fees.
Section 7.8 Binding Effect; Participations. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrower and
the Liquidity Provider and their respective successors and assigns, except that
neither the Liquidity Provider (except as otherwise provided in this Section
7.8) nor the Borrower shall have the right to assign its rights hereunder or
any interest herein without the prior written consent of the other party,
subject to the requirement of Section 7.8(b). The Liquidity Provider may grant
participations herein or in any of its rights or security hereunder and under
the other Operative Agreements to such Persons as the Liquidity Provider may in
its sole discretion select, subject to the requirement of Section 7.8(b). No
such granting of participations by the Liquidity Provider, however, will
relieve the Liquidity Provider of its obligations hereunder. In connection
with any participation or any proposed participation, the Liquidity Provider
may disclose to the participant or the proposed participant any information
that the Borrower is required to deliver or to disclose to the Liquidity
Provider pursuant to this Agreement. The Borrower acknowledges and agrees that
the Liquidity Provider's source of funds may derive in part from its
participants. Accordingly,
22
26
references in this Agreement and the other Operative Agreements to
determinations, reserve and capital adequacy requirements, increased costs,
reduced receipts and the like as they pertain to the Liquidity Provider shall
be deemed also to include those of each of its participants (subject, in each
case, to the maximum amount that would have been incurred by or attributable to
the Liquidity Provider directly if the Liquidity Provider, rather than the
participant, had held the interest participated).
(b) If, pursuant to subsection (a) above, the Liquidity
Provider sells any participation to any bank or other entity (each, a
"Participant"), then, concurrently with the effectiveness of such
participation, the Participant shall (i) represent to the Liquidity Provider
(for the benefit of the Liquidity Provider and the Borrower) either (A) that it
is incorporated under the laws of the United States or a state thereof or (B)
that under applicable law and treaties, no taxes will be required to be
withheld by the Borrower or the Liquidity Provider with respect to any payments
to be made to such Participant in respect of this Agreement, (ii) furnish to
the Liquidity Provider and the Borrower either (x) a statement that it is
incorporated under the laws of the United States or a state thereof or (y) if
it is not so incorporated, two copies of a properly completed United States
Internal Revenue Service Form 4224 or Form 1001, as appropriate, or other
applicable form, certificate or document prescribed by the Internal Revenue
Service certifying, in each case, such Participant's entitlement to a complete
exemption from United States federal withholding tax in respect to any and all
payments to be made hereunder, and (iii) agree (for the benefit of the
Liquidity Provider and the Borrower) to provide the Liquidity Provider and the
Borrower a new Form 4224 or Form 1001, as appropriate, (A) on or before the
date that any such form expires or becomes obsolete or (B) after the occurrence
of any event requiring a change in the most recent form previously delivered by
it and prior to the immediately following due date of any payment by the
Borrower hereunder, certifying in the case of a Form 1001 or Form 4224 that
such Participant is entitled to a complete exemption from United States federal
withholding tax on payments under this Agreement. Unless the Borrower has
received forms or other documents reasonably satisfactory to it indicating that
payments hereunder are not subject to United States federal withholding tax,
the Borrower will withhold taxes as required by law from such payments at the
applicable statutory rate without any obligation to gross-up or indemnify
pursuant to Section 3.3.
(c) Notwithstanding the other provisions of this Section 7.8,
the Liquidity Provider may assign and pledge all or any portion of the Advances
owing to it to any Federal Reserve Bank or the United States Treasury as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal
23
27
Reserve Bank, provided that any payment in respect of such assigned Advances
made by the Borrower to the Liquidity Provider in accordance with the terms of
this Agreement shall satisfy the Borrower's obligations hereunder in respect of
such assigned Advance to the extent of such payment. No such assignment shall
release the Liquidity Provider from its obligations hereunder.
Section 7.9 Severability. Any provision of this Agreement
which is prohibited, unenforceable or not authorized in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or nonauthorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
Section 7.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 7.11 Submission to Jurisdiction; Waiver of Jury
Trial.
(a) Each of the parties hereto hereby irrevocably and
unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement or any other Operative
Agreement, or for recognition and enforcement of any judgment in
respect hereof or thereof, to the nonexclusive general jurisdiction of
the courts of the State of New York, the courts of the United States
of America for the Southern District of New York, and the appellate
courts from any thereof;
(ii ) consents that any such action or proceeding may be
brought in such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) if such party does not maintain an office for the
transaction of its business in New York, agrees that service of
process in any such action or proceeding may be effected by mailing a
copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to each party hereto at its
address set forth in Section 7.2, or at such other address of which
the Liquidity Provider shall have been notified pursuant thereto; and
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28
(iv ) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted by law or
shall limit the right to ▇▇▇ in any other jurisdiction.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE
TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS
BEING ESTABLISHED, including, without limitation, contract claims, tort claims,
breach of duty claims and all other common law and statutory claims. The
Borrower and the Liquidity Provider each warrant and represent that it has
reviewed this waiver with its legal counsel, and that it knowingly and
voluntarily waives its jury trial rights following consultation with such legal
counsel. THIS WAIVER CANNOT BE MODIFIED ORALLY.
Section 7.12 Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 7.13 Entirety. This Agreement and the other
Operative Agreements constitute the entire agreement of the parties hereto with
respect to the subject matter hereof and thereof and supersede all prior
understandings and agreements of such parties.
Section 7.14 Headings; Section References. Section headings
in this Agreement are included herein for convenience of reference only and
shall not constitute a part of this Agreement for any other purpose. Unless
the context otherwise requires or otherwise indicated herein, all Section
references in this Agreement are references to Sections hereof.
Section 7.15 LIQUIDITY PROVIDER'S OBLIGATION TO MAKE
ADVANCES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF
THE LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO
DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL
BE UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE
STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
25
29
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first set forth above.
FLEET NATIONAL BANK, not in
its individual capacity but
solely as Subordination Agent,
as agent and trustee for the
Class C Trust, as Borrower
By
-------------------------------------
Name:
Title:
KREDIETBANK N.V., NEW YORK BRANCH,
as Liquidity Provider
By
-------------------------------------
Name:
Title:
By
-------------------------------------
Name:
Title:
26
30
Annex I to Irrevocable
Revolving Credit Agreement
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned borrower (the "Borrower"), hereby certifies to KREDIETBANK N.V.,
acting through its New York Branch (the "Liquidity Provider"), with reference
to the Irrevocable Revolving Credit Agreement, Class C Certificates dated as of
June __, 1997, between the Borrower and the Liquidity Provider (the "Liquidity
Agreement"; the terms defined therein and not otherwise defined herein being
used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for
the making of an Interest Advance by the Liquidity Provider to be used
for the payment of interest on the Class C Certificates which was
payable on the Distribution Date falling on _____________ in
accordance with the terms and provisions of the Class C Trust
Agreement and the Class C Certificates and has not been paid pursuant
to clause sixth of Section 3.2 of the Intercreditor Agreement or
clause eighth of Section 3.3 of the Intercreditor Agreement, which
Advance is requested to be made on _____________.
(3) The amount of the Interest Advance requested hereby (i)
is $___________, to be applied in respect of the payment of interest
which was due and payable on the Class C Certificates on such
Distribution Date, (ii) does not include any amount with respect to
the payment of the principal of, or premium on, the Class C
Certificates, or principal of, or interest or premium on, the Class A
Certificates, the Class B Certificates or the Class D Certificates,
(iii) was computed in accordance with the provisions of the Class C
Certificates, the Class C Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule
I), (iv) does not exceed the Available Commitment on the date hereof,
and (v) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will apply the same in
accordance with the terms of Section 3.2 or 3.3 of the Intercreditor
Agreement, as the case may be, (b) no portion of such amount shall be
applied by the Borrower for any other purpose and (c) no portion of
such amount until so applied shall be commingled with other funds held
by the Borrower.
31
(5) The Borrower hereby requests that the Advance requested
hereby be a Base Rate Advance and that such Base Rate Advance be
converted into a LIBOR Rate Advance on the third Business Day
following your receipt of this notice.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, the making of the Interest Advance as requested by this
Notice of Borrowing shall automatically reduce, subject to reinstatement in
accordance with the terms of the Liquidity Agreement, the Available Commitment
by an amount equal to the amount of the Interest Advance requested to be made
hereby as set forth in clause (i) of paragraph (3) of this Certificate and such
reduction shall automatically result in corresponding reductions in the amounts
available to be borrowed pursuant to a subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the _ day of ______________, ________.
FLEET NATIONAL BANK, not in its
individual capacity but solely
as Subordination Agent,
as agent and trustee for the
Class C Trust, as Borrower
By
-------------------------------------
Name:
Title:
2
32
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Interest Advance Notice of Borrowing]
3
33
Annex II to Irrevocable
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned subordination agent (the "Borrower"), hereby certifies to
KREDIETBANK, N.V., acting through its New York Branch (the "Liquidity
Provider"), with reference to the Irrevocable Revolving Credit Agreement, Class
C Certificates dated as of June __, 1997, 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 C Cash Collateral Account in
accordance with Section 3.6(c) of the Intercreditor Agreement by
reason of the downgrading of the debt rating of the Liquidity Provider
issued by either Rating Agency below the applicable Threshold Rating,
which Advance is requested to be made on __________.
(3) The amount of the Downgrade Advance requested hereby (i)
is $___________, which equals the Available Commitment on the date
hereof and is to be applied in respect of the funding of the Class C
Cash Collateral Account in accordance with Section 3.6(c) of the
Intercreditor Agreement, (ii) does not include any amount with respect
to the payment of the principal of, or premium on, the Class C
Certificates, or principal of, or interest or premium on, the Class A
Certificates, the Class B Certificates or the Class D Certificates,
(iii) was computed in accordance with the provisions of the Class C
Certificates, the Class C Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule
I), and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such amount in
the Class C Cash Collateral Account and apply the same in accordance
with the terms of Section 3.6(c) of the Intercreditor Agreement, (b)
no portion of such amount shall be applied by the Borrower for any
other purpose and (c) no portion of such amount until so applied shall
be commingled with other funds held by the Borrower.
34
(5) The Borrower hereby requests that the Advance requested
hereby be a Base Rate Advance and that such Base Rate Advance be
converted into a LIBOR Rate Advance on the third Business Day
following your receipt of this notice.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Downgrade Advance as requested by
this Notice of Borrowing shall automatically and irrevocably terminate the
obligation of the Liquidity Provider to make further Advances under the
Liquidity Agreement; and (B) following the making by the Liquidity Provider of
the Downgrade Advance requested by this Notice of Borrowing, the Borrower shall
not be entitled to request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the _ day of __________, _____.
FLEET NATIONAL BANK, not in its
individual capacity but solely
as Subordination Agent,
as agent and trustee for the
Class C Trust, as Borrower
By
-------------------------------------
Name:
Title:
2
35
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Downgrade Advance Notice of Borrowing]
36
Annex III to Irrevocable
Revolving Credit Agreement
NOTICE OF AUTOMATIC REDUCTION OF COMMITMENT
[Date]
Ladies and Gentlemen:
The undersigned, a duly authorized signatory of the
undersigned subordination agent (the "Borrower"), hereby notifies Kredietbank
N.V., acting through its New York Branch (the "Liquidity Provider"), with
reference to the Irrevocable Revolving Credit Agreement dated as of June __,
1997, between the Borrower and the Liquidity Provider (the "Liquidity
Agreement"; the terms defined therein and not otherwise defined herein being
used herein as therein defined or referenced), that, pursuant to Section 2.4(a)
of the Liquidity Agreement, the Commitment has been automatically reduced to
$_________.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the _ day of __________, _____.
FLEET NATIONAL BANK, not in its
individual capacity but solely
as Subordination Agent,
as agent and trustee for the
Class C Trust, as Borrower
By
-------------------------------------
Name:
Title:
37
Annex IV to Irrevocable
Revolving Credit Agreement
NOTICE OF REPLACEMENT BORROWER
[Date]
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby
irrevocably transfers to:
[Name of Transferee]
[Address of Transferee]
all rights of the undersigned as Borrower under the Liquidity Agreement
referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the first
paragraph of the Liquidity Agreement.
By this transfer, all rights of the undersigned as Borrower
under the Liquidity Agreement are transferred to the transferee and the
transferee shall hereafter have the sole rights as Borrower thereunder. The
undersigned shall pay any costs and expenses of such transfer, including, but
not limited to, transfer taxes or governmental charges.
We ask that this transfer be effective as of __________, ____.
FLEET NATIONAL BANK, not in its
individual capacity but solely
as Subordination Agent,
as agent and trustee for the
Class C Trust, as Borrower
By
-------------------------------------
Name:
Title: