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EXHIBIT 4.9
IRREVOCABLE REVOLVING CREDIT AGREEMENT
CLASS C CERTIFICATES
Dated as of November 26, 1996
between
FLEET NATIONAL BANK,
as Subordination Agent,
as agent and trustee for the
America West Airlines Pass Through Trust 1996-1C,
as Borrower
and
KREDIETBANK N.V.,
NEW YORK BRANCH,
as Liquidity Provider
Relating to
America West Airlines Pass Through Trust 1996-1C
6.86% America West Airlines Pass Through Certificates,
Series 1996-1C
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TABLE OF CONTENTS
Page
ARTICLE I............................................... 1
DEFINITIONS................................................. 1
Section 1.1 Certain Defined Terms....................................... 1
ARTICLE II.............................................. 5
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................................. 11
Section 3.4 Payments.................................................... 12
Section 3.5 Computations................................................ 13
Section 3.6 Payment on Non-Business Days................................ 13
Section 3.7 Interest.................................................... 13
Section 3.8 Replacement of Borrower..................................... 14
Section 3.9 Funding Loss Indemnification................................ 14
Section 3.10 Illegality................................................. 15
ARTICLE IV
CONDITIONS PRECEDENT........................................ 15
Section 4.1 Conditions Precedent to Effectiveness of Section 2.1........ 15
Section 4.2 Conditions Precedent to Borrowing........................... 17
ARTICLE V
COVENANTS .................................................. 18
Section 5.1 Affirmative Covenants of the Borrower....................... 18
Section 5.2 Negative Covenants of the Borrower.......................... 18
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Page
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 ...................... 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 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 .................. 25
Annex I - Interest Advance Notice of Borrowing
Annex II - Downgrade Advance Notice of Borrowing
Annex III - Notice of Replacement Borrower
Annex IV - Notice of Automatic Reduction of Commitment
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IRREVOCABLE REVOLVING CREDIT AGREEMENT
CLASS C CERTIFICATES
IRREVOCABLE REVOLVING CREDIT AGREEMENT, CLASS C CERTIFICATES
dated as of November 26, 1996 between FLEET NATIONAL BANK, a national banking
association, not in its individual capacity but solely as Subordination Agent
under the Intercreditor Agreement (each as defined below), as agent and trustee
for the Class 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, $3,884,166.30 as the same may
be reduced from time to time in accordance with Section 2.4(a).
"Downgrade Advance" means an Advance made pursuant to Section
2.2(b).
"Effective Date" has the meaning specified in Section 4.1. The
delivery of the certificate of the Liquidity Provider contemplated by Section
4.1(d) shall be conclusive evidence that the Effective Date has occurred.
"Expenses" means liabilities, obligations, damages,
settlements, penalties, claims, actions, suits, costs, expenses and
disbursements (including, without limitation, reasonable fees and disbursements
of legal counsel and costs of investigation), provided that Expenses shall not
include any Taxes.
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"Expiry Date" means January 17, 2006.
"Final Advance" means an Advance made pursuant to Sections
2.2(c) and 6.1.
"Intercreditor Agreement" means the Intercreditor Agreement
dated the date hereof, among the Trustees, the Liquidity Provider, the liquidity
provider under each Liquidity Facility (other than this Agreement) and the
Subordination Agent, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"Interest Advance" means an Advance made pursuant to Section
2.2(a).
"Interest Period" means, with respect to any LIBOR Advance,
each of the following periods:
(i) the period beginning on the date such LIBOR Advance
is made (or is converted from a Base Rate Advance) and ending on the
next Regular Distribution Date; and
(ii) each subsequent period commencing on the last day
of the immediately preceding Interest Period and ending on the next
Regular Distribution Date.
"Lending Office" means the lending office of the Liquidity
Provider, presently located at 125 West 55th Street, New York, NY 10019, or such
other lending office as the Liquidity Provider from time to time shall notify
the Borrower at its lending office hereunder.
"LIBOR Advance" means an Advance bearing interest at a rate
based upon the LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period, the
rate per annum at which deposits in U.S. Dollars are offered for the relevant
Interest Period by the Liquidity Provider to prime banks in the London interbank
market at approximately 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period in the principal amount of the Advance to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period, as quoted by the Liquidity Provider to the Subordination
Agent.
"Liquidity Event of Default" means the occurrence of the
following: all of the Equipment Notes shall have been either declared to be
immediately due and payable or shall not have been paid at their final maturity.
A Liquidity Event of Default shall not occur upon an automatic acceleration of
the Equipment Notes as a result of an America West Bankruptcy Event.
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"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.
"Non-Excluded Tax" has the meaning specified in Section 3.3.
"Notice of Borrowing" has the meaning specified in Section
2.2(d).
"Notice of Replacement Borrower" has the meaning specified in
Section 3.8.
"Participant" has the meaning assigned to such term in Section
7.8(b).
"Prospectus" means the prospectus included in the registration
statement on Form S-3 (File No. 333-14691) filed by America West relating to
certain pass through certificates, as such Prospectus may be amended or
supplemented.
"Related Indemnitee" means, with respect to any Liquidity
Indemnitee, its director, officer, employee, agent, affiliate or employer.
"Replenishment Amount" has the meaning assigned to such term
in Section 2.6(b).
"Required Amount" means, for any day, the sum of the aggregate
amount of interest, calculated at the rate per annum equal to the Stated
Interest Rate for the Class 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 the Class C Certificates have been paid in full
(or provision has been made for such payment in accordance with the
Intercreditor
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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", "Class E Certificates", "Closing Date", "Controlling
Party", "Corporate Trust Office", "Distribution Date", "$", "Equipment
Notes", "Indenture", "Investment Earnings", "Liquidity Facility",
"Moody's", "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 2.4(b)) in an aggregate amount at any time
outstanding not to exceed the Commitment.
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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 Moody's 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 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
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satisfaction of the conditions precedent set forth in Section 4.2 with respect
to a requested Borrowing, the Liquidity Provider shall, before 12:00 Noon (New
York City time) on the date of such Borrowing or on such later Business Day
specified by the Borrower in such Notice of Borrowing, make available to the
Borrower, in U.S. dollars and in immediately available funds, the amount of such
Borrowing to be paid to the Borrower in accordance with its payment
instructions. If a Notice of Borrowing is delivered by the Borrower in respect
of any Borrowing after 12:00 Noon (New York City time) on a Business Day, the
Liquidity Provider shall, before 12:00 Noon (New York City time) on the second
Business Day next following the day of receipt of such Notice of Borrowing or on
such later Business Day specified by the Borrower in such Notice of Borrowing,
make available to the Borrower, in U.S. dollars and in immediately available
funds, the amount of such Borrowing to be paid to the Borrower in accordance
with its payment instructions. Payments of proceeds of a Borrowing shall be made
by wire transfer of immediately available funds to the Borrower in accordance
with such wire transfer instructions as the Borrower shall furnish from time to
time to the Liquidity Provider for such purpose. Each Notice of Borrowing shall
be irrevocable and binding on the Borrower.
(e) Upon the making of any Advance requested pursuant to a
Notice of Borrowing, in accordance with the Borrower's payment instructions, the
Liquidity Provider shall be fully discharged of its obligation hereunder with
respect to such Notice of Borrowing, and the Liquidity Provider shall not
thereafter be obligated to make any further Advances hereunder in respect of
such Notice of Borrowing to the Borrower or to any other person (including the
holder of any Class 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 0.25% 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 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
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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 IV 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
became 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 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
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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 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
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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), 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. A certificate as to such increased cost
incurred by the Liquidity Provider as a result of any event mentioned in clause
(i), (ii) or (iii) above, prepared in reasonable detail 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
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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 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.
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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.
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
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Provider in immediately available funds, by wire transfer to The Bank of New
York, One Wall Street, New York, NY 10286, ABA No. 021-000-018, for the account
of Kredietbank New York, Account No. 802-3015618 (referencing America West
Airlines Liquidity Facility).
Section 3.5 Computations. All computations of interest based
on the Base Rate shall be made on the basis of a year of 365 or 366 days, as the
case may be, and all computations of (x) interest based on the LIBOR Rate and
(y) fees payable to the Liquidity Provider, shall be made on the basis of a year
of 360 days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest is
payable.
Section 3.6 Payment on Non-Business Days. Whenever any payment
to be made hereunder (other than a payment on LIBOR Advances) becomes due and
payable on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day and interest thereon shall be payable at the then
applicable rate during such extension. If any payment on a LIBOR Advance becomes
due and payable on a day other than a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day.
Section 3.7 Interest. (a) The Borrower shall pay, or shall
cause to be paid, interest on (i) the unpaid principal amount of each Advance
from and including the date of such Advance to but excluding the date such
principal amount shall be paid in full and (ii) any other amount due hereunder
(whether fees, commissions, expenses or other amounts or, to the extent
permitted by law, installments of interest on Advances or any such other amount)
which is not paid when due (whether at stated maturity, by acceleration or
otherwise) from and including the due date thereof to but excluding the date
such amount is paid in full, in each such case, at a fluctuating interest rate
per annum for each day equal to the Applicable Liquidity Rate for such Advance
for such day, but in no event at a rate per annum greater than the maximum rate
permitted by applicable law; provided, however, that, if at any time the
otherwise applicable interest rate as set forth in this Section 3.7 shall exceed
the maximum rate permitted by applicable law, then any subsequent reduction in
such interest rate will not reduce the rate of interest payable pursuant to this
Section 3.7 below the maximum rate permitted by applicable law until the total
amount of interest accrued equals the amount of interest that would have accrued
if such otherwise applicable interest rate as set forth in this Section 3.7 had
at all times been in effect. Nothing contained in this Section 3.7 shall require
the Borrower to pay any amount
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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 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).
(d) 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).
(e) Each amount not paid when due hereunder (whether fees,
commissions, expenses or other amounts or, to the extent permitted by applicable
law, installments of interest on Advances) shall bear interest at the Base Rate.
(f) Each change in the Base Rate shall become effective
immediately.
Section 3.8 Replacement of Borrower. Subject to Section
5.2(b), from time to time, upon the effective date and time specified in a
written and completed Notice of Replacement Borrower in substantially the form
of Annex III attached hereto (a "Notice of Replacement Borrower") delivered to
the Liquidity Provider by the then Borrower, the successor Borrower designated
therein shall be substituted for as the Borrower for all purposes hereunder.
Section 3.9 Funding Loss Indemnification. The Borrower shall
pay to the Liquidity Provider, upon the request of the Liquidity Provider, such
amount or amounts as shall be sufficient (in the reasonable opinion of the
Liquidity Provider) to compensate it for any loss, cost, or expense incurred as
a result of:
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(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:
(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:
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(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, the Class D Certificates and the Class E
Certificates will receive long-term credit ratings from
Moody's of not lower than A2, Baa2, Ba1, Ba3 and B1,
respectively, and from Standard & Poor's of not lower than
AA-, A-, BBB-, BB and B+, respectively;
(vi) An executed or certified copy of each document,
instrument, certificate and opinion delivered pursuant to the
Class 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, 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;
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(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.
The Liquidity Provider shall have received payment in full of
all fees and other sums required to be paid to or for the account of
the Liquidity Provider on or prior to the Effective Date.
(c) All conditions precedent to the issuance of the
Certificates under the Trust Agreements shall have been satisfied, all
conditions precedent to the effectiveness of the other Liquidity
Facilities shall have been satisfied, and all conditions precedent to
the purchase of the Certificates by the Underwriters under the
Underwriting Agreement shall have been satisfied (except for any of
such conditions precedent under the Underwriting Agreement that shall
have been waived by the Underwriters).
(d) The Borrower shall have received a certificate, dated the
date hereof, signed by a duly authorized representative of the
Liquidity Provider, certifying that all conditions precedent to the
effectiveness of Section 2.1 have been satisfied or waived (other than
this Section 4.1(d)).
Section 4.2 Conditions Precedent to Borrowing. The obligation
of the Liquidity Provider to make an Advance on the occasion of each Borrowing
shall be subject to the conditions
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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:
(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
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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
777 Main Street
Hartford, CT 06115
Attention: Corporate Trust
Administration
Telecopy: (860) 986-7920
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Liquidity
Provider: Kredietbank N.V.
New York Branch
125 West 55th Street
New York, NY 10019
Attention: General Manager
Telecopy: (212) 956-5580
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 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
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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.
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
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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 Document or otherwise affecting
the application of funds in the Cash Collateral Accounts. In addition, the
Borrower shall pay any and all recording, stamp and other similar taxes and fees
payable or determined to be payable in connection with the execution, delivery,
filing and recording of this Agreement, any other Operative Agreement and such
other documents, and agrees to save the Liquidity Provider harmless from and
against any and all liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes or fees.
Section 7.8 Binding Effect; Participations. (a) This Agreement
shall be binding upon and inure to the benefit of the Borrower and the Liquidity
Provider and their respective successors and assigns, except that neither the
Liquidity Provider (except as otherwise provided in this Section 7.8) nor the
Borrower shall have the right to assign its rights hereunder or any interest
herein without the prior written consent of the other party, subject to the
requirement of Section 7.8(b). The Liquidity Provider may grant participations
herein or in any of its rights or security hereunder and under the other
Operative Agreements to such Persons as the Liquidity Provider may in its sole
discretion select, subject to the requirement of Section 7.8(b). No such
participation by the Liquidity Provider, however, will relieve the Liquidity
Provider of its obligations hereunder. In connection with any participation or
any proposed participation, the Liquidity Provider may disclose to the
participant or the proposed participant any information that the Borrower is
required to deliver or to disclose to the Liquidity Provider pursuant to this
Agreement. The Borrower acknowledges and agrees that the Liquidity Provider's
source of funds may derive in part from its participants. Accordingly,
references in this Agreement and the other Operative Agreements to
determinations, reserve and capital adequacy requirements, increased costs,
reduced receipts and the like as they pertain to
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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 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
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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 and mail), postage prepaid, to each party hereto at its address
set forth in Section 7.2, or at such other address of which the
Liquidity Provider shall have been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted by law or
shall limit the right to sue in any other jurisdiction.
24
28
(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
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
November 26, 1996, between the Borrower and the Liquidity Provider (the
"Liquidity Agreement"; the terms defined therein and not otherwise defined
herein being used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for
the making of an Interest Advance by the Liquidity Provider to be used
for the payment of interest on the Class 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 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 principal of, or premium on, the Class A Certificates, the
Class B Certificates, the Class C Certificates, the Class D
Certificates or Class E Certificates, or interest on the Class A
Certificates, the Class B Certificates, the Class D Certificates or the
Class E 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
31
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 Rate Advance on the third Business Day following
your receipt of this notice.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, the making of the Interest Advance as requested by this
Notice of Borrowing shall automatically reduce, subject to reinstatement in
accordance with the terms of the Liquidity Agreement, the Available Commitment
by an amount equal to the amount of the Interest Advance requested to be made
hereby as set forth in clause (i) of paragraph (3) of this Certificate and such
reduction shall automatically result in corresponding reductions in the amounts
available to be borrowed pursuant to a subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the _ day of ________________, ________.
FLEET NATIONAL BANK, not in its
individual capacity but solely
as Subordination Agent, as
Borrower
By ________________________________
Name:
Title:
2
32
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Interest Advance Notice of Borrowing]
3
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 November 26, 1996, between the Borrower and the
Liquidity Provider (the "Liquidity Agreement"; the terms defined therein and not
otherwise defined herein being used herein as therein defined or referenced),
that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for
the making of the Downgrade Advance by the Liquidity Provider to be
used for the funding of the Class 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, the Class D Certificates or the
Class E 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.
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(5) The Borrower hereby requests that the Advance requested
hereby be a Base Rate Advance and that such Base Rate Advance be
converted into a LIBOR Rate Advance on the third Business Day following
your receipt of this notice.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Downgrade Advance as requested by
this Notice of Borrowing shall automatically and irrevocably terminate the
obligation of the Liquidity Provider to make further Advances under the
Liquidity Agreement; and (B) following the making by the Liquidity Provider of
the Downgrade Advance requested by this Notice of Borrowing, the Borrower shall
not be entitled to request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the _ day of __________, _________.
FLEET NATIONAL BANK, not in its
individual capacity but solely
as Subordination Agent, as
Borrower
By ________________________________
Name:
Title:
2
35
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Downgrade Advance Notice of Borrowing]
36
Annex III to Irrevocable
Revolving Credit Agreement
NOTICE OF REPLACEMENT BORROWER
[Date]
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby
irrevocably transfers to:
[Name of Transferee]
[Address of Transferee]
all rights of the undersigned as Borrower under the Liquidity Agreement referred
to above. The transferee has succeeded the undersigned as Subordination Agent
under the Intercreditor Agreement referred to in the first paragraph of the
Liquidity Agreement.
By this transfer, all rights of the undersigned as Borrower
under the Liquidity Agreement are transferred to the transferee and the
transferee shall hereafter have the sole rights as Borrower thereunder. The
undersigned shall pay any costs and expenses of such transfer, including, but
not limited to, transfer taxes or governmental charges.
We ask that this transfer be effective as of
__________, ________.
FLEET NATIONAL BANK, not in its
individual capacity but solely
as Subordination Agent, as
Borrower
By ________________________________
Name:
Title:
37
Annex IV to Irrevocable
Revolving Credit Agreement
NOTICE OF AUTOMATIC REDUCTION OF COMMITMENT
[Date]
Ladies and Gentlemen:
The undersigned, a duly authorized signatory of the
undersigned subordination agent (the "Borrower"), hereby notifies Kredietbank
N.V., acting through its New York Branch (the "Liquidity Provider"), with
reference to the Irrevocable Revolving Credit Agreement dated as of November 26,
1996, between the Borrower and the Liquidity Provider (the "Liquidity
Agreement"; the terms defined therein and not otherwise defined herein being
used herein as therein defined or referenced), that, pursuant to Section 2.4(a)
of the Liquidity Agreement, the Commitment has been automatically reduced to
$_________.
IN WITNESS WHEREOF, the Borrower has executed and
delivered this Notice of Borrowing as of the _ day of __________,
______.
FLEET NATIONAL BANK, not in its
individual capacity but solely
as Subordination Agent, as
Borrower
By_______________________________
Name:
Title:
2