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EXHIBIT 4.10
EXECUTION COPY
REVOLVING CREDIT AGREEMENT (2001-1G)
Dated as of May 17, 2001
between
WILMINGTON TRUST COMPANY,
as Subordination Agent,
as agent and trustee for the
America West Airlines Pass Through Trust 2001-1G,
as Borrower
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
New York Branch,
as Liquidity Provider
Relating to
America West Airlines Pass Through Trust 2001-1G
7.10% America West Airlines Enhanced Pass Through Certificates, Series 2001-1G
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS........................................................................ 1
Section 1.01 Certain Defined Terms......................................................... 1
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENT................................................. 7
Section 2.01 Advances...................................................................... 7
Section 2.02 Making the Advances........................................................... 7
Section 2.03 Fees.......................................................................... 9
Section 2.04 Automatic Adjustments and Termination of the Maximum Commitment............... 9
Section 2.05 Repayments of Interest Advances or the Final Advance.......................... 10
Section 2.06 Repayments of Provider Advances............................................... 10
Section 2.07 Payments to the Liquidity Provider Under the Intercreditor Agreement.......... 11
Section 2.08 Book Entries.................................................................. 11
Section 2.09 Payments from Available Funds Only............................................ 12
Section 2.10 Extension of Expiry Date...................................................... 12
ARTICLE III OBLIGATIONS OF THE BORROWER........................................................ 12
Section 3.01 Increased Costs............................................................... 12
Section 3.02 Capital Adequacy.............................................................. 13
Section 3.03 Payments Free of Deductions................................................... 14
Section 3.04 Payments...................................................................... 15
Section 3.05 Computations.................................................................. 15
Section 3.06 Payment on Non-Business Days.................................................. 15
Section 3.07 Interest...................................................................... 16
Section 3.08 Replacement of Borrower....................................................... 17
Section 3.09 Funding Loss Indemnification.................................................. 17
Section 3.10 Illegality.................................................................... 18
ARTICLE IV CONDITIONS PRECEDENT............................................................... 18
Section 4.01 Conditions Precedent to Effectiveness of Section 2.01......................... 18
Section 4.02 Conditions Precedent to Borrowing............................................. 20
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TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE V COVENANTS.......................................................................... 20
Section 5.01 Affirmative Covenants of the Borrower......................................... 20
Section 5.02 Negative Covenants of the Borrower............................................ 20
ARTICLE VI LIQUIDITY EVENTS OF DEFAULT........................................................ 21
Section 6.01 Liquidity Events of Default................................................... 21
ARTICLE VII MISCELLANEOUS...................................................................... 21
Section 7.01 Amendments, Etc............................................................... 21
Section 7.02 Notices, Etc.................................................................. 21
Section 7.03 No Waiver: Remedies........................................................... 22
Section 7.04 Further Assurances............................................................ 22
Section 7.05 Indemnification: Survival of Certain Provisions............................... 23
Section 7.06 Liability of the Liquidity Provider........................................... 23
Section 7.07 Costs......................................................................... 24
Section 7.08 Binding Effect; Participations................................................ 24
Section 7.09 Severability.................................................................. 25
Section 7.10 GOVERNING LAW................................................................. 26
Section 7.11 Submission to Jurisdiction: Waiver of Jury Trial; Waiver of Immunity.......... 26
Section 7.12 Execution in Counterparts..................................................... 27
Section 7.13 Entirety...................................................................... 27
Section 7.14 Headings...................................................................... 27
Section 7.15 LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES.............................. 27
Section 7.16 Transfer...................................................................... 27
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REVOLVING CREDIT AGREEMENT (2001-1G)
This REVOLVING CREDIT AGREEMENT (2001-1G), dated as of May 17, 2001 (as it
may be amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof, this "Agreement"), between WILMINGTON TRUST
COMPANY, a Delaware banking corporation, not in its individual capacity but
solely as Subordination Agent under the Intercreditor Agreement (each as defined
below), as agent and trustee for the Class G Trust (as defined below) (the
"Borrower"), and WESTDEUTSCHE LANDESBANK GIROZENTRALE, a German banking
institution organized under the laws of the State of North Rhine - Westphalia,
Germany, acting through its New York branch ("West LB" or the "Liquidity
Provider").
W I T N E S S E T H
WHEREAS, pursuant to the Class G Trust Agreement (as defined below),
the Class G Trust is issuing the Class G Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a
portion of the interest on the Class G Certificates in accordance with their
terms, has requested the Liquidity Provider to enter into this Agreement,
providing in part for the Borrower to request in specified circumstances that
Advances be made hereunder.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and of other good and valuable consideration the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms. (a) For all purposes of this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(i) the terms used herein that are defined in this Article I
have the meanings assigned to them in this Article I, and include the
plural as well as the singular;
(ii) all references in this Agreement to designated
"Articles," "Sections" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this Agreement;
(iii) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision; and
(iv) the term "including" means "including without
limitation".
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
"Additional Costs" has the meaning specified in Section 3.01.
"Advance" means an Interest Advance, a Final Advance, a Provider
Advance or an Applied Provider Advance, as the case may be.
"Applicable Liquidity Rate" has the meaning specified in Section
3.07(g).
"Applicable Margin" means (x) with respect to any Unpaid Advance or
Applied Provider Advance, 2.25% and (y) with respect to any Unapplied Provider
Advance, 0.35%.
"Applied Downgrade Advance" has the meaning specified in Section
2.06(a).
"Applied Non-Extension Advance" has the meaning assigned to such
term in Section 2.06(a).
"Applied Provider Advance" has the meaning assigned to such term in
Section 2.06(a).
"Assignment and Assumption Agreement" means the Assignment and
Assumption Agreement to be entered into between the Borrower and the trustee of
the Successor Trust, substantially in the form of Exhibit D to the Class G Trust
Agreement.
"Base Rate" means the rate of interest announced publicly by WestLB
from time to time in New York, New York, as its base rate.
"Base Rate Advance" means an Advance that bears interest at a rate
based upon the Base Rate.
"Borrower" has the meaning specified in the recitals to this
Agreement.
"Borrowing" means the making of Advances requested by delivery of a
Notice of Borrowing.
"Business Day" means any day (x) other than a Saturday or Sunday or
a day on which commercial banks are authorized or required by law to close in
Phoenix, Arizona, New York, New York or, so long as any Class G Certificate is
outstanding, the city and state in which the Class G Trustee, the Borrower or
any Indenture Trustee maintains its corporate trust office or receives and
disburses funds, and (y) if the applicable Business Day relates to any Advance
or amount bearing interest based on LIBOR, on which dealings are carried on in
the London interbank market.
"Consent Period" has the meaning specified in Section 2.10.
"Deposits" has the meaning assigned to such term in the Deposit
Agreement.
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
"Depositary" means Citibank, N.A.
"Deposit Agreement" means the Deposit Agreement (2001-1G) dated as
of the date hereof between Wilmington Trust Company, as Escrow Agent and
Citibank, N.A., as Depositary, pertaining to the Class G Certificates, as the
same may be amended, modified or supplemented from time to time in accordance
with the terms thereof.
"Downgrade Advance" means an Advance made pursuant to Section
2.02(c).
"Effective Date" has the meaning specified in Section 4.01. The
delivery of the certificate of the Liquidity Provider contemplated by Section
4.01(e) shall be conclusive evidence that the Effective Date has occurred.
"Excluded Taxes" means (i) any Taxes imposed on, based on, or
measured by the overall net income, capital, franchises, or receipts (other than
Taxes which are or are in the nature of sales or use Taxes or value added Taxes)
of the Liquidity Provider or any of its Lending Offices, (ii) withholding Taxes
imposed under laws in effect on the date hereof by the United States on payments
to a recipient in the jurisdiction in which the Liquidity Provider's initial
Lending Office is located, (iii) withholding Taxes imposed by the United States
on payments to a recipient in any other jurisdiction to which such Lending
Office is moved if, under the laws in effect at the time of such move, such laws
would require greater withholding of Taxes on payments to such Liquidity
Provider acting from an office in such jurisdiction than would be required on
payments to such Liquidity Provider acting from an office in the jurisdiction
from which such Lending Office was moved, and (iv) any withholding Taxes imposed
by the United States which are imposed or increased as a result of the Liquidity
Provider failing to deliver to the Borrower any certificate or document (which
certificate or document in the good faith judgment of the Liquidity Provider it
is able and legally entitled to provide) which is reasonably requested by the
Borrower to establish that payments under this Agreement are exempt from (or
entitled to a reduced rate of) withholding Tax.
"Expenses" means liabilities, obligations, damages, settlements,
penalties, claims, actions, suits, costs, expenses, and disbursements
(including, without limitation, reasonable fees and disbursements of legal
counsel and costs of investigation), provided that Expenses shall not include
Taxes.
"Expiry Date" means May 15, 2002, initially, or any date to which
the Expiry Date is extended pursuant to Section 2.10.
"Final Advance" means an Advance made pursuant to Section 2.02(d).
"Intercreditor Agreement" means the Intercreditor Agreement, dated
as of the date hereof among the Trustees, the Liquidity Provider, the liquidity
provider under each Liquidity Facility (other than this Agreement), the Policy
Provider and the Subordination Agent, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms.
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
"Interest Advance" means an Advance made pursuant to Section
2.02(a).
"Interest Period" means, with respect to any LIBOR Advance, each of
the following periods:
(1) the period beginning on the third Business Day following either
(x) the Liquidity Provider's receipt of the Notice of Borrowing for such
LIBOR Advance or (y) the withdrawal of funds from the Class G Cash
Collateral Account for the purpose of paying interest on the Class G
Certificates as contemplated by Section 2.06(a) hereof and, in either
case, ending on the next Regular Distribution Date; and
(2) each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the next Regular
Distribution Date;
provided, however, that if (x) the Final Advance shall have been made, or (y)
other outstanding Advances shall have been converted into the Final Advance,
then the Interest Periods shall be successive periods of one month beginning on
the third Business Day following the Liquidity Provider's receipt of the Notice
of Borrowing for such Final Advance (in the case of clause x above) or the
Regular Distribution Date following such conversion (in the case of clause (y)
above).
"Lending Office" means the lending office of the Liquidity Provider,
presently located at New York, New York, or such other lending office as the
Liquidity Provider from time to time shall notify the Borrower as its lending
office hereunder.
"LIBOR" means, with respect to any Interest Period, the interest
rate per annum at which deposits in United States dollars are offered to prime
banks in the London interbank market as indicated on display page 3750 (British
Bankers Association-LIBOR) of the Dow Xxxxx Markets Service (or such other page
as may replace such display page 3750 for the purpose of displaying London
interbank offered rates for United States dollar deposits) or, if not so
indicated, the average (rounded upwards to the nearest 1/16%), as determined by
the Liquidity Provider, of such rates as indicated on the Reuters Screen LIBO
Page (or such other page as may replace such Reuters Screen LIBO Page for the
purpose of displaying London interbank offered rates for United States dollar
deposits) or, if neither such alternative is indicated, the average (rounded
upwards to the nearest 1/16%), as determined by the Liquidity Provider, of such
rates offered by the London Reference Banks to prime banks in the London
interbank market, in each case at or about 11:00 a.m. (London time) on the day
two Business Days prior to the first day of such Interest Period for deposits of
a duration equal to such Interest Period (or such other period most nearly
corresponding to such period) in an amount substantially equal to the principal
amount of the applicable LIBOR Advance as of the first day of such Interest
Period. The Liquidity Provider will, if necessary, request that each of the
London Reference Banks provide a quotation of its rate. If at least two such
quotations are provided, the rate will be the average of the quotations (rounded
upwards to the nearest 1/100%). If no such quotation can be obtained, the rate
will be the Base Rate.
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"LIBOR Advance" means an Advance bearing interest at a rate based
upon LIBOR.
"Liquidity Event of Default" means the occurrence of either (a) the
Acceleration of all of the Equipment Notes (provided, that, with respect to the
period prior to the Delivery Period Expiry Date, such Equipment Notes have an
aggregate outstanding principal balance in excess of $100,000,000) or (b) an
America West Bankruptcy Event.
"Liquidity Indemnitee" means (i) the Liquidity Provider, (ii) the
directors, officers, employees, servants and agents of the Liquidity Provider,
and (iii) the successors and permitted assigns of the persons described in
clauses (i) through (ii), inclusive.
"Liquidity Provider" has the meaning specified in the recital of
parties to this Agreement.
"London Reference Banks" means the principal London offices of
Citicorp USA, Inc., The Fuji Bank, Limited, National Westminster Bank plc and
The Industrial Bank of Japan, Limited, or such other bank or banks as may from
time to time be agreed to by America West and the Liquidity Provider.
"Maximum Available Commitment" shall mean, subject to the proviso
contained in the third sentence of Section 2.02(a), at any time of
determination, (a) the Maximum Commitment at such time, less (b) the aggregate
amount of each Interest Advance outstanding at such time; provided, however,
that following a Provider Advance or a Final Advance, the Maximum Available
Commitment shall be zero.
"Maximum Commitment" means initially $34,627,729.50, as the same may
be reduced or increased from time to time in accordance with Section 2.04(a).
"Non-Excluded Tax" has the meaning specified in Section 3.03.
"Non-Extension Advance" means an Advance made pursuant to Section
2.02(b).
"Notice of Borrowing" has the meaning specified in Section 2.02(e).
"Notice of Replacement Subordination Agent" has the meaning
specified in Section 3.08.
"Offering Memorandum" means the Offering Memorandum dated May 10,
2001 relating to the Certificates, as such Offering Memorandum may be amended or
supplemented.
"Participating Institution" has the meaning specified in Section
7.08(b).
"Participation Agreement" means, with respect to each Indenture, the
"Participation Agreement" referred to therein.
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"Performing Note Deficiency" means anytime that less than 65% of the
then aggregate outstanding principal amount of all Equipment Notes are
Performing Equipment Notes.
"Provider Advance" means a Downgrade Advance or a Non-Extension
Advance.
"Regulatory Change" has the meaning specified in Section 3.01.
"Replenishment Amount" has the meaning assigned to such term in
Section 2.06(b).
"Required Amount" means, for any day, the sum of the aggregate
amount of interest, calculated at the rate per annum equal to the Stated
Interest Rate for the Class G Certificates on the basis of a 360-day year
comprised of twelve 30-day months, that would be payable on the Class G
Certificates on each of the three successive semiannual Regular Distribution
Dates following such day or, if such day is a Regular Distribution Date, on such
day and the succeeding two semiannual Regular Distribution Dates, in each case
calculated on the basis of the Pool Balance of the Class G Certificates on such
day and without regard to expected future payments of principal on the Class G
Certificates. Notwithstanding the above, in the event of any Policy Provider
Election, for purposes of the definition of the Required Amount the Pool Balance
shall be deemed to be reduced by the amount (if positive) by which (a) the then
outstanding principal balance of each Series G Equipment Note in respect of
which such Policy Provider Election has been made shall exceed (b) the amount of
any Policy Drawings previously paid by the Policy Provider in respect of
principal on such Series G Equipment Note.
"Successor Trust" means America West Airlines Pass Through Trust
2001-1G-S.
"Termination Date" means the earliest to occur of the following: (i)
the Expiry Date; (ii) the date on which the Borrower delivers to the Liquidity
Provider a certificate, signed by a Responsible Officer of the Borrower,
certifying that all of the Class G Certificates have been paid in full (or
provision has been made for such payment in accordance with the Intercreditor
Agreement and the Trust Agreement) or are otherwise no longer entitled to the
benefits of this Agreement; (iii) the date on which the Borrower delivers to the
Liquidity Provider a certificate, signed by a Responsible Officer of the
Borrower, certifying that a Replacement Liquidity Facility has been substituted
for this Agreement in full pursuant to Section 3.6(e) of the Intercreditor
Agreement; (iv) the fifth Business Day following the receipt by the Borrower and
America West of a Termination Notice from the Liquidity Provider pursuant to
Section 6.01; and (v) the date on which no Advance is or may (including by
reason of reinstatement as herein provided) become available for a Borrowing
hereunder.
"Termination Notice" means the Notice of Termination substantially
in the form of Annex V to this Agreement.
"Unapplied Provider Advance" means any Provider Advance other than
an Applied Provider Advance.
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
"Unpaid Advance" has the meaning specified in Section 2.05.
(b) Terms Defined in the Intercreditor Agreement. For all purposes
of this Agreement, the following terms shall have the respective meanings
assigned to such terms in the Intercreditor Agreement:
"Acceleration," "Affiliate," "America West," "America West Bankruptcy
Event," "Certificates," "Class G Cash Collateral Account," "Class G
Certificates," "Class G Trust," "Class G Trust Agreement," "Class G
Trustee," "Class C Certificates," "Class D Certificates," "Closing Date,"
"Controlling Party," "Delivery Period Expiry Date," "Distribution Date,"
"Downgraded Facility," "Equipment Notes," "Fee Letter," "Final Legal
Distribution Date," "Indenture," "Initial Purchasers," "Interest Payment
Date," "Investment Earnings," "Liquidity Facility," "Liquidity
Obligations," "Loan Trustee," "Xxxxx'x," "Non-Extended Facility," "Note
Purchase Agreement," "Operative Agreements," "Performing Equipment Note,"
"Person," "Policy Drawings," "Policy Provider," "Policy Provider
Election," "Pool Balance," "Purchase Agreement," "Rating Agency," "Regular
Distribution Date," "Replacement Liquidity Facility," "Responsible
Officer," "Scheduled Payment," "Special Payment," "Standard & Poor's,"
"Stated Interest Rate," "Subordination Agent," "Taxes," "Threshold
Rating," "Trust Agreement," "Trustee," and "Written Notice."
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01 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 time) on the Expiry Date (unless the
obligations of the Liquidity Provider shall be earlier terminated in accordance
with the terms of Section 2.04(b)) in an aggregate amount at any time
outstanding not to exceed the Maximum Commitment.
Section 2.02 Making the Advances. (a) Each "Interest Advance" shall be
made in a single Borrowing by delivery to the Liquidity Provider of a written
and completed Notice of Borrowing in substantially the form of Annex I, signed
by a Responsible Officer of the Borrower, such Interest Advance in an amount not
exceeding the Maximum Available Commitment at such time and shall be used solely
for the payment when due of interest on the Class G Certificates at the Stated
Interest Rate therefor in accordance with Section 3.6(a) of the Intercreditor
Agreement. Each Interest Advance made hereunder shall automatically reduce the
Maximum Available Commitment and the amount available to be borrowed hereunder
by subsequent Advances by the amount of such Interest Advance (subject to
reinstatement as provided in the next sentence). Upon repayment to the Liquidity
Provider in full or in part of the amount of any Interest Advance made pursuant
to this Section 2.02(a), together with accrued interest thereon (as provided
herein), the Maximum Available Commitment shall be reinstated by the amount of
such repaid Interest Advance, but not to exceed the Maximum
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
Commitment; provided, however, that the Maximum Available Commitment shall not
be so reinstated at any time if (i) a Liquidity Event of Default shall have
occurred and be continuing and (ii) there is a Performing Note Deficiency.
(b) A "Non-Extension Advance" shall be made in a single Borrowing if
this Agreement is not extended in accordance with Section 3.6(d) of the
Intercreditor Agreement (unless a Replacement Liquidity Facility to replace this
Agreement shall have been delivered to the Borrower as contemplated by said
Section 3.6(d) within the time period specified in such Section) by delivery to
the Liquidity Provider of a written and completed Notice of Borrowing in
substantially the form of Annex II attached hereto, signed by a Responsible
Officer of the Borrower, in an amount equal to the Maximum Available Commitment
at such time, and shall be used to fund the Class G Cash Collateral Account in
accordance with said Section 3.6(d) and Section 3.6(f) of the Intercreditor
Agreement.
(c) A "Downgrade Advance" shall be made in a single Borrowing upon a
downgrading of the Liquidity Provider's short-term unsecured debt rating issued
by either Rating Agency below the applicable Threshold Rating (as provided for
in Section 3.6(c) of the Intercreditor Agreement) unless a Replacement Liquidity
Facility 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 III, signed by a
Responsible Officer of the Borrower, in an amount equal to the Maximum Available
Commitment at such time, and shall be used to fund the Class G Cash Collateral
Account in accordance with said Section 3.6(c) and Section 3.6(f) of the
Intercreditor Agreement. Upon such downgrading, the Liquidity Provider shall
promptly deliver notice thereof to the Borrower, the Trustee and America West.
(d) A "Final Advance" shall be made in a single Borrowing upon the
receipt by the Borrower of a Termination Notice from the Liquidity Provider
pursuant to Section 6.01, by delivery to the Liquidity Provider of a written and
completed Notice of Borrowing in substantially the form of Annex IV, signed by a
Responsible Officer of the Borrower, in an amount equal to the Maximum Available
Commitment at such time, and shall be used to fund the Class G Cash Collateral
Account (in accordance with Section 3.6(f) and Section 3.6(i) of the
Intercreditor Agreement).
(e) Each Borrowing shall be made on notice in writing (a "Notice of
Borrowing") in substantially the form required by Section 2.02(a), 2.02(b),
2.02(c) or 2.02(d), as the case may be, given by the Borrower to the Liquidity
Provider. If a Notice of Borrowing is delivered by the Borrower in respect of
any Borrowing no later than 12:00 noon (New York time) on a Business Day, upon
satisfaction of the conditions precedent set forth in Section 4.02 with respect
to a requested Borrowing, the Liquidity Provider shall, before 4:00 p.m. (New
York time) on the date of such Borrowing or on such later Business Day specified
by the Borrower in such Notice of Borrowing, make available for the account of
its Lending Office, 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 time) on a Business Day,
upon satisfaction of the conditions precedent set forth in Section 4.02 with
respect to a requested Borrowing, the Liquidity Provider shall, before 11:00
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
a.m. (New York time) on the first Business Day 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 accordance with
its payment instructions, in U.S. dollars and in immediately available funds,
the amount of such Borrowing. Payments of proceeds of a Borrowing shall be made
by wire transfer of immediately available funds to the Borrower in accordance
with such wire transfer instructions as the Borrower shall furnish from time to
time to the Liquidity Provider for such purpose. Each Notice of Borrowing shall
be irrevocable and binding on the Borrower. Each Notice of Borrowing shall be
effective upon delivery of a copy thereof to the Liquidity Provider's New York
Branch at the address specified in Section 7.02.
(f) Upon the making of any Advance requested pursuant to a Notice of
Borrowing in accordance with the Borrower's payment instructions, the Liquidity
Provider shall be fully discharged of its obligation hereunder with respect to
such Notice of Borrowing, and the Liquidity Provider shall not thereafter be
obligated to make any further Advances hereunder in respect of such Notice of
Borrowing to the Borrower or to any other Person. If the Liquidity Provider
makes an Advance requested pursuant to a Notice of Borrowing before 11:00 a.m.
(New York time) on the second Business Day after the date of payment specified
in said Section 2.02(e), the Liquidity Provider shall have fully discharged its
obligations hereunder with respect to such Advance and an event of default shall
not have occurred hereunder. Following the making of any Advance pursuant to
Section 2.02(b), Section 2.02(c) or Section 2.02(d) to fund the Class G Cash
Collateral Account, the Liquidity Provider shall have no interest in or rights
to the Class G Cash Collateral Account, such Advance or any other amounts from
time to time on deposit in the Class G Cash Collateral Account; provided,
however, that the foregoing shall not affect or impair the obligations of the
Subordination Agent to make the distributions contemplated by Section 3.6(e) or
(f) of the Intercreditor Agreement and provided further, that the foregoing
shall not affect or impair the rights of the Liquidity Provider to provide
written instructions with respect to the investment and reinvestment of the Cash
Collateral Accounts to the extent provided in Section 2.2(b) of the
Intercreditor Agreement. By paying to the Borrower proceeds of Advances
requested by the Borrower in accordance with the provisions of this Agreement,
the Liquidity Provider makes no representation as to, and assumes no
responsibility for, the correctness or sufficiency for any purpose of the amount
of the Advances so made and requested.
Section 2.03 Fees. The Borrower agrees to pay to the Liquidity Provider the
fees set forth in the Fee Letter.
Section 2.04 Automatic Adjustments and Termination of the Maximum
Commitment.
(a) Automatic Adjustments. Promptly following each date on which the
Required Amount is (1) reduced as a result of a reduction in the Pool Balance of
the Class G Certificates or otherwise, (2) increased as a result of an increase
in the Stated Interest Rate or (3) subsequent to such increase described in
clause (2), reduced pursuant to the definition of "Stated Interest Rate" the
Maximum Commitment shall automatically be reduced or increased, as the case may
be, to an amount equal to the Required Amount (as calculated by the Borrower).
The Borrower shall give notice of any such automatic reduction or increase, as
the case may be, of the Maximum Commitment to the
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Liquidity Provider within two Business Days thereof. The failure by the Borrower
to furnish any such notice shall not affect such automatic reduction or increase
of the Maximum Commitment.
(b) Termination. Upon the making of any Provider Advance or Final
Advance hereunder or the occurrence of the Termination Date, the obligation of
the Liquidity Provider to make further Advances hereunder shall automatically
and irrevocably terminate, and the Borrower shall not be entitled to request any
further Borrowing hereunder.
Section 2.05 Repayments of Interest Advances or the Final Advance. Subject
to Sections 2.06, 2 07 and 2.09, the Borrower hereby agrees, without notice of
an Advance or demand for repayment from the Liquidity Provider (which notice and
demand are hereby waived by the Borrower), to pay, or to cause to be paid, to
the Liquidity Provider on each date on which the Liquidity Provider shall make
an Interest Advance or the Final Advance, an amount equal to (a) the amount of
such Advance (any such Advance, until repaid, is referred to herein as an
"Unpaid Advance"), plus (b) interest on the amount of each such Unpaid Advance
as provided in Section 3.07; provided, however, that if (i) the Liquidity
Provider shall make a Provider Advance at any time after making one or more
Interest Advances which shall not have been repaid in accordance with this
Section 2.05 or (ii) this Liquidity Facility shall become a Downgraded Facility
or Non-Extended Facility at any time when unreimbursed Interest Advances have
reduced the Maximum Available Commitment to zero, then such Interest Advances
shall cease to constitute Unpaid Advances and shall be deemed to have been
changed into an Applied Downgrade Advance or an Applied Non-Extension Advance,
as the case may be, for all purposes of this Agreement (including, for the
purpose of determining when such Interest Advance is required to be repaid to
the Liquidity Provider in accordance with Section 2.06 and for the purposes of
Section 2.06(b)). The Borrower and the Liquidity Provider agree that the
repayment in full of each Interest Advance and Final Advance on the date such
Advance is made is intended to be a contemporaneous exchange for new value given
to the Borrower by the Liquidity Provider.
Section 2.06 Repayments of Provider Advances. (a) Amounts advanced
hereunder in respect of a Provider Advance shall be deposited in the Class G
Cash Collateral Account, invested and withdrawn from the Class G Cash Collateral
Account as set forth in Sections 3.6(c), (d) and (f) of the Intercreditor
Agreement. The Borrower agrees to pay to the Liquidity Provider, on each Regular
Distribution Date, commencing on the first Regular Distribution Date after the
making of a Provider Advance, interest on the principal amount of any such
Provider Advance as provided in Section 3.07; provided, however, that amounts in
respect of a Provider Advance withdrawn from the Class G Cash Collateral Account
for the purpose of paying interest on the Class G Certificates in accordance
with Section 3.6(f) of the Intercreditor Agreement (the amount of any such
withdrawal being (y) in the case of a Downgrade Advance, an "Applied Downgrade
Advance" and (z) in the case of a Non-Extension Advance, an "Applied
Non-Extension Advance" and, together with an Applied Downgrade Advance, an
"Applied Provider Advance") shall thereafter (subject to Section 2.06(b)) be
treated as an Interest Advance under this Agreement for purposes of determining
the Applicable Liquidity Rate for interest payable thereon; and provided,
further, that if, following the making of a Provider Advance, the Liquidity
Provider delivers a Termination Notice to the Borrower pursuant to Section 6.01,
such Provider Advance shall thereafter be treated as a Final Advance under this
Agreement for purposes of
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
determining the Applicable Liquidity Rate for interest payable thereon and the
obligation for repayment thereof. Subject to Sections 2.07 and 2.09 hereof,
immediately upon the withdrawal of any amounts from the Class G Cash Collateral
Account on account of a reduction in the Required Amount, the Borrower shall
repay to the Liquidity Provider a portion of the Provider Advances in a
principal amount equal to the amount of such reduction, plus interest on the
principal amount prepaid as provided in Section 3.07.
(b) At any time when an Applied Provider Advance (or any portion
thereof) is outstanding, upon the deposit in the Class G Cash Collateral Account
of any amount pursuant to clause third of Section 2.4(b) of the Intercreditor
Agreement, clause third of Section 3.2 of the Intercreditor Agreement or clause
fourth of Section 3.3 of the Intercreditor Agreement (any such amount being a
"Replenishment Amount") for the purpose of replenishing or increasing the
balance thereof up to the amount of the Required Amount at such time, (i) the
aggregate outstanding principal amount of all Applied Provider Advances (and of
Provider Advances treated as an Interest Advance for purposes of determining the
Applicable Liquidity Rate for interest payable thereon) shall be automatically
reduced by the amount of such Replenishment Amount and (ii) the principal amount
of all outstanding Unapplied Provider Advances shall be automatically increased
by the amount of such Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity Facility in
replacement of this Agreement in accordance with Section 3.6(e) of the
Intercreditor Agreement, amounts remaining on deposit in the Class G Cash
Collateral Account after giving effect to any Applied Provider Advance on the
date of such replacement shall be reimbursed to the Liquidity Provider, but only
to the extent such amounts are necessary to repay in full to the Liquidity
Provider all amounts owing to it hereunder.
Section 2.07 Payments to the Liquidity Provider Under the Intercreditor
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 to Liquidity Obligations then due and
payable in the order of priority required by the applicable provisions of
Articles II and III of the Intercreditor Agreement or, if not provided for in
the Intercreditor Agreement, then in such manner as the Liquidity Provider shall
deem appropriate.
Section 2.08 Book 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.
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Section 2.09 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 or payments under
Section 7.1 or 9.1, as the case may be, of any Participation Agreement and
Section 6 of the Note Purchase Agreement, and only to the extent that the
Borrower shall have sufficient income or proceeds therefrom to enable the
Borrower to make payments in accordance with the terms hereof after giving
effect to the priority of payments provisions set forth in the Intercreditor
Agreement. The Liquidity Provider agrees that it shall 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 or
the Intercreditor Agreement. Amounts on deposit in the Class G Cash Collateral
Account shall be available to the Borrower to make payments under this Agreement
only to the extent and for the purposes expressly contemplated in Section 3.6(f)
of the Intercreditor Agreement.
Section 2.10 Extension of Expiry Date. No earlier than the 60' day and no
later than the 40th day prior to the then effective Expiry Date (unless such
Expiry Date is on or after the date that is 15 days after the Final Legal
Distribution Date for the Class G Certificates), the Borrower shall request that
the Liquidity Provider extend the Expiry Date to the earlier of (i) the date
that is 15 days after the Final Legal Distribution Date for the Class G
Certificates and (ii) the date that is the day immediately preceding the 364'
day occurring after the last day of the Consent Period (as hereinafter defined).
Whether or not the Borrower has made such request, the Liquidity Provider shall
advise the Borrower, no earlier than the 40' day (or, if earlier, the date of
the Liquidity Provider's receipt of such request, if any, from the Borrower) and
no later than the 25m day prior to the then effective Expiry Date (such period
the "Consent Period"), whether, in its sole discretion, it agrees to so extend
the Expiry Date. If the Liquidity Provider advises the Borrower on or before the
date on which the Consent Period ends that such Expiry Date shall not be so
extended, or fails to irrevocably and unconditionally advise the Borrower on or
before the date on which the Consent Period ends that such Expiry Date shall be
so extended (and, in each case, if the Liquidity Provider shall not have been
replaced in accordance with Section 3.6(e) of the Intercreditor Agreement), the
Borrower shall be entitled on and after the date on which the Consent Period
ends (but prior to the then effective Expiry Date) to request a Non-Extension
Advance in accordance with Section 2.02(b) and Section 3.6(d) of the
Intercreditor Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01 Increased Costs. The Borrower shall pay to the Liquidity
Provider from time to time such amounts as may be necessary to compensate the
Liquidity Provider for any costs incurred by the Liquidity Provider which are
attributable to its making or maintaining any Advances hereunder or its
obligation to make any such Advances hereunder, or any reduction in any amount
receivable by the Liquidity Provider under this Agreement or the Intercreditor
Agreement in respect of any such Advances or such obligation (such increases in
costs and reductions in amounts receivable being
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herein called "Additional Costs"), resulting from any change after the date of
this Agreement in U.S. federal, state, or municipal, or any foreign laws or
regulations, or the adoption or making after such date of any interpretation,
regulation, directive, guideline, requirement or request whether or not having
the force of law, by any court or governmental or monetary authority charged
with the interpretation or administration thereof (a "Regulatory Change"),
which: (1) changes the basis of taxation of any amounts payable to the Liquidity
Provider under this Agreement in respect of any such Advances or such obligation
(other than Taxes); or (2) imposes or modifies any reserve, special deposit,
compulsory loan or similar requirements relating to any extensions of credit or
other assets of, or any deposits with other liabilities of, the Liquidity
Provider (including any such Advances or such obligation or any deposits
referred to in the definition of LIBOR or related definitions). The Liquidity
Provider agrees to use reasonable efforts (consistent with its internal policy
and applicable legal and regulatory restrictions) to change the jurisdiction of
its Lending Office if making such change would avoid the need for, or reduce the
amount of, any amount payable under this Section 3.01 that may thereafter accrue
and would not, in the reasonable judgment of the Liquidity Provider, be
otherwise disadvantageous to the Liquidity Provider.
The Liquidity Provider shall notify the Borrower of any event occurring
after the date of this Agreement that shall entitle the Liquidity Provider to
compensation pursuant to this Section 3.01 as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation, which
notice shall describe in reasonable detail the calculation of the amounts owed
under this Section 3.01; provided, that if the Liquidity Provider fails to give
such notice within 180 days after it obtains such knowledge, the Liquidity
Provider shall, with respect to any costs resulting from such event, only be
entitled to payment under this Section 3.01 for costs incurred from and after
the date 180 days prior to the date the Liquidity Provider does give such
notice. Determinations by the Liquidity Provider for purposes of this Section
3.01 of the effect of any Regulatory Change on its costs of making or
maintaining Advances or on amounts receivable by it in respect of Advances, and
of the additional amounts required to compensate the Liquidity Provider in
respect of any Additional Costs, shall be prima facie evidence of the amount
owed under this Section 3.01.
Notwithstanding the preceding two paragraphs, the Liquidity Provider and
the Subordination Agent agree that any permitted assignee or participant of the
initial Liquidity Provider that is not a bank shall not be entitled to the
benefits of the preceding two paragraphs (but without limiting the provisions of
Section 7.08 hereof).
Section 3.02 Capital Adequacy. If (1) compliance with any judicial,
administrative or other governmental interpretation of any law or regulation or
(2) compliance by the Liquidity Provider or any corporation controlling the
Liquidity Provider with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) has the effect
of requiring an increase in the amount of capital required or expected to be
maintained by the Liquidity Provider or any corporation controlling the
Liquidity Provider, and such increase is based upon the Liquidity Provider's
obligations hereunder and other similar obligations, the Borrower shall pay to
the Liquidity Provider such additional amount as shall be reasonably allocable
to the Liquidity Provider's obligations to the Borrower hereunder. The Liquidity
Provider agrees to use reasonable efforts
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
(consistent with applicable legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if making such change would avoid the need
for, or reduce the amount of, any amount payable under this Section 3.02 that
may thereafter accrue and would not, in the reasonable judgment of the Liquidity
Provider, be otherwise disadvantageous to the Liquidity Provider.
The Liquidity Provider shall notify the Borrower of any event occurring
after the date of this Agreement that shall entitle the Liquidity Provider to
compensation pursuant to this Section 3.02 as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation, which
notice shall describe in reasonable detail the calculation of the amounts owed
under this Section 3.02; provided, that if the Liquidity Provider fails to give
such notice within 180 days after it obtains such knowledge, the Liquidity
Provider shall, with respect to any costs resulting from such event, only be
entitled to payment under this Section 3.02 for costs incurred from and after
the date 180 days prior to the date the Liquidity Provider does give such
notice. Determinations by the Liquidity Provider for purposes of this Section
3.02 of the effect of any increase in the amount of capital required to be
maintained by the Liquidity Provider and of the amount allocable to the
Liquidity Provider's obligations to the Borrower hereunder shall be prima facie
evidence of the amounts owed under this Section 3.02.
Notwithstanding the preceding two paragraphs, the Liquidity Provider and
the Subordination Agent agree that any permitted assignee or participant of the
initial Liquidity Provider that is not a bank shall not be entitled to the
benefits of the preceding two paragraphs (but without limiting the provisions of
Section 7.08 hereof).
Section 3.03 Payments Free of Deductions. (a) All payments made by the
Borrower under this Agreement shall be made free and clear of, and without
reduction for or on account of, any Taxes, excluding Excluded Taxes (such
non-excluded taxes being referred to herein, collectively, as "Non-Excluded
Taxes"). If any Non-Excluded Taxes are required to be withheld or deducted from
any amounts payable to the Liquidity Provider under this Agreement, the Borrower
shall (i) within the time prescribed therefor by applicable law pay to the
appropriate governmental or taxing authority the full amount of any such
Non-Excluded Taxes (and any additional Non-Excluded Taxes in respect of the
payment required under clause (ii) below) and make such reports or returns in
connection therewith at the time or times and in the manner prescribed by
applicable law, and (ii) pay to the Liquidity Provider an additional amount
which (after deduction of all such Non-Excluded Taxes) shall be sufficient to
yield to the Liquidity Provider the full amount which would have been received
by it had no such withholding or deduction been made. Within 30 days after the
date of each payment hereunder, the Borrower shall furnish to the Liquidity
Provider the original or a certified copy of (or other documentary evidence of)
the payment of the Non-Excluded Taxes applicable to such payment. The Liquidity
Provider agrees to use reasonable efforts (consistent with applicable legal and
regulatory restrictions) to change the jurisdiction of its Lending Office if
making such change would avoid the need for, or reduce the amount of, any such
additional amounts that may thereafter accrue and would not, in the reasonable
judgment of the Liquidity Provider, be otherwise materially disadvantageous (as
determined by the Liquidity Provider) to the Liquidity Provider or require the
Liquidity Provider to incur any cost or expenses for which it is not indemnified
by the Borrower. The Liquidity Provider
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
shall deliver to the Borrower such certificates and documents as may be
reasonably requested by the Borrower and required by applicable law and as may
be legally delivered by the Liquidity Provider to establish that payments
hereunder are exempt from (or entitled to a reduced rate of) withholding Tax.
(b) All payments (including, without limitation, Advances) made by
the Liquidity Provider under this Agreement shall be made free and clear of, and
without reduction for or on account of, any Taxes. If any Taxes are required to
be withheld or deducted from any amounts payable to the Borrower under this
Agreement, the Liquidity Provider shall (i) within the time prescribed therefor
by applicable law pay to the appropriate governmental or taxing authority the
full amount of any such Taxes (and any additional Taxes in respect of the
additional amounts payable under clause (ii) hereof) and make such reports or
returns in connection therewith at the time or times and in the manner
prescribed by applicable law, and (ii) pay to the Borrower an additional amount
which (after deduction of all such Taxes) shall be sufficient to yield to the
Borrower the full amount which would have been received by it had no such
withholding or deduction been made. Within 30 days after the date of each
payment hereunder, the Liquidity Provider shall furnish to the Borrower the
original or a certified copy of (or other documentary evidence of) the payment
of the Taxes applicable to such payment.
(c) If any exemption from, or reduction in the rate of, any Taxes is
reasonably available to the Borrower to establish that payments under this
Agreement are exempt from (or entitled to a reduced rate of) tax, the Borrower
shall deliver to the Liquidity Provider such form or forms and such other
evidence of the eligibility of the Borrower for such exemption or reduction as
the Liquidity Provider may reasonably identify to the Borrower as being required
as a condition to exemption from, or reduction in the rate of, any Taxes.
Section 3.04 Payments. The Borrower shall make or cause to be made each
payment to the Liquidity Provider under this Agreement so as to cause the same
to be received by the Liquidity Provider not later than 1:00 P.M. (New York City
time) on the day when due. The Borrower shall make all such payments in lawful
money of the United States of America, to the Liquidity Provider in immediately
available funds, by wire transfer to The Chase Manhattan Bank, New York, ABA No.
000000000, Account Name: Westdeutsche Landesbank Girozentrale, New York Branch,
Account No. 0000-00-0000, ref. GSF/Transportation, America Xxxx Xxxxxxxx
0000-0X, Xxxxxxxxx: Xxxx Xxxxx.
Section 3.05 Computations. All computations of interest based on the Base
Rate shall be made on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the LIBOR shall be made on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest is payable.
Section 3.06 Payment on Non-Business Days. Whenever any payment to be made
hereunder shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day and no additional
interest shall be due as a result (and if so made, shall be deemed to have been
made when due). If any payment in respect of interest on an Advance is
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
so deferred to the next succeeding Business Day, such deferral shall not delay
the commencement of the next Interest Period for such Advance (if such Advance
is a LIBOR Advance) or reduce the number of days for which interest shall be
payable on such Advance on the next interest payment date for such Advance.
Section 3.07 Interest. (a) Subject to Section 2.09, the Borrower shall
pay, or shall cause to be paid, without duplication, interest on (i) the unpaid
principal amount of each Advance from and including the date of such Advance
(or, in the case of an Applied Provider Advance, from and including the date on
which the amount thereof was withdrawn from the Class G Cash Collateral Account
to pay interest on the Class G Certificates) to but excluding the date such
principal amount shall be paid in full (or, in the case of an Applied Provider
Advance, the date on which the Class G Cash Collateral Account is fully
replenished in respect of such Advance) and (ii) any other amount due hereunder
(whether fees, commissions, expenses or other amounts or to the extent permitted
by applicable law, installments of interest on Advances or any such other
amount) which is not paid when due (whether at stated maturity, by acceleration
or otherwise) from and including the due date thereof to but excluding the date
such amount is paid in full, in each such case, at a fluctuating interest rate
per annum for each day equal to the Applicable Liquidity Rate (as defined below)
for such Advance or such other amount as in effect for such day, but in no event
at a rate per annum greater than the maximum rate permitted by applicable law;
provided, however, that, if at any time the otherwise applicable interest rate
as set forth in this Section 3.07 shall exceed the maximum rate permitted by
applicable law, then any subsequent reduction in such interest rate shall not
reduce the rate of interest payable pursuant to this Section 3.07 below the
maximum rate permitted by applicable law until the total amount of interest
accrued equals the amount of interest that would have accrued if such otherwise
applicable interest rate as set forth in this Section 3.07 had at all times been
in effect. Nothing contained in this Section 3.07 shall require the Borrower to
pay any amount under this Section 3.07 other than to the extent the Borrower
shall have funds available therefor.
(b) Each Advance shall be either a Base Rate Advance or a LIBOR
Advance as provided in this Section or Section 3.10. Each such Advance shall 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, however, that the Borrower (at the direction of the
Controlling Party, so long as the Liquidity Provider is not the Controlling
Party) may (x) convert the Final Advance into a Base Rate Advance on the last
day of an Interest Period for such Advance by giving the Liquidity Provider no
less than four Business Days' prior written notice of such election or (y) elect
to maintain the Final Advance as a Base Rate Advance by not requesting a
conversion of the Final Advance to a LIBOR Advance under Clause (5) of the
applicable Notice of Borrowing (or, if such Final Advance is deemed to have been
made, without delivery of a Notice of Borrowing pursuant to Section 2.06, by
requesting, prior to 11:00 A.M. (New York time) on the first Business Day
following the Borrower's receipt of the applicable Termination Notice, that such
Final Advance not be converted from a Base Rate Advance to a LIBOR Advance).
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
(c) Each LIBOR Advance shall bear interest during each Interest
Period at a rate per annum equal to LIBOR for such Interest Period plus the
Applicable Margin for such LIBOR Advance, payable in arrears on the last day of
such Interest Period and, in the event of the payment of principal of such LIBOR
Advance on a day other than such last day, on the date of such payment (to the
extent of interest accrued on the amount of principal repaid).
(d) Each Base Rate Advance shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin for such Base Rate Advance,
payable in arrears on each Regular Distribution Date and, in the event of the
payment of principal of such Base Rate Advance on a day other than a Regular
Distribution Date, on the date of such payment (to the extent of interest
accrued on the amount of principal repaid).
(e) Each amount not paid when due hereunder (whether fees,
commissions, expenses or other amounts or, to the extent permitted by applicable
law, installments of interest on Advances but excluding Advances) shall bear
interest at a rate per annum equal to the Base Rate plus 2.50% per annum.
(f) Each change in the Base Rate shall become effective immediately.
The rates of interest specified in this Section 3.07 with respect to any Advance
or other amount shall be referred to as the "Applicable Liquidity Rate."
Section 3.08 Replacement of Borrower. Subject to Section 5.02, from time
to time and subject to the successor Borrower's meeting the eligibility
requirements set forth in Section 6.9 of the Intercreditor Agreement applicable
to the Subordination Agent, upon the effective date and time specified in a
written and completed Notice of Replacement Subordination Agent in substantially
the form of Annex VI (a "Notice of Replacement Subordination Agent") delivered
to the Liquidity Provider by the then Borrower, the successor Borrower
designated therein shall be substituted for as the Borrower for all purposes
hereunder.
Section 3.09 Funding Loss Indemnification. The Borrower shall pay to the
Liquidity Provider, upon the request of the Liquidity Provider, such amount or
amounts as shall be sufficient (in the reasonable opinion of the Liquidity
Provider) to compensate it for any loss, cost, or expense incurred by reason of
the liquidation or redeployment of deposits or other funds acquired by the
Liquidity Provider to fund or maintain any LIBOR Advance (but excluding loss of
anticipated profits) incurred as a result of
(1) Any repayment of a LIBOR Advance on a date other than the
last day of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance on
the date for borrowing specified in the relevant notice under Section
2.02.
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
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.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied or waived:
(a) The Liquidity Provider shall have received on or before the
Closing Date each of the following, and in the case of each document delivered
pursuant to paragraphs (i), (ii) and (iii), in form and substance satisfactory
to the Liquidity Provider:
(i) This Agreement duly executed on behalf of the Borrower;
(ii) The Intercreditor Agreement duly executed on behalf of
each of the parties thereto (other than the Liquidity Provider);
(iii) Fully executed copies of each of the Operative
Agreements executed and delivered on or before the Closing Date (other
than this Agreement and the Intercreditor Agreement);
(iv) A copy of the Offering Memorandum and specimen copies of
the Class G Certificates;
(v) An executed copy of each opinion, document, instrument and
certificate delivered on or before the Closing Date pursuant to the Class
G Trust Agreement, the Intercreditor Agreement, the Note Purchase
Agreement and the other Operative Agreements entered into on or prior to
the date hereof (together with, in the case of each such opinion, other
than the opinion of counsel for the Underwriters, either addressed to the
Liquidity Provider or accompanied by a letter from the counsel rendering
such opinion to the
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
effect that the Liquidity Provider is entitled to rely on such opinion as
of its date as if it were addressed to the Liquidity Provider);
(vi) Evidence that there shall have been made and shall be in
full force and effect, all filings, recordings and/or registrations, and
there shall have been given or taken any notice or other similar action as
may be reasonably necessary or, to the extent reasonably requested by the
Liquidity Provider, reasonably advisable, in order to establish, perfect,
protect and preserve the right, title and interest, remedies, powers,
privileges, liens and security interests of, or for the benefit of, the
Trustee and the Liquidity Provider created by the Operative Agreements
executed and delivered on or before the Closing Date;
(vii) An agreement from America West, pursuant to which
America West agrees to provide copies of quarterly financial statements
and audited annual financial statements to the Liquidity Provider (which
obligations may be satisfied by the furnishing of America West's Form lOQ
and l OK), in each case, only to the extent that America West is obligated
to provide such information pursuant to Section 8.2.1 of the Leases
(related to Leased Aircraft) or to Section 4.08 of the Indentures (related
to Owned Aircraft) to the parties thereto; and
(viii)Such other documents, instruments, opinions and
approvals as the Liquidity Provider shall have reasonably requested.
(b) The following statements shall be true on and as of the
Effective Date:
(i) The representations and warranties in the Note Purchase
Agreement and each of the Participation Agreements entered into on or
prior to the date hereof are true and correct on and as of the Effective
Date as though made on-and as of the Effective Date;
(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; and
(iii) There has been no material adverse change in the
financial condition or results of operations of America West and its
subsidiaries taken as a whole since December 31, 2000.
(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 or waived, all conditions
precedent to the effectiveness of the other Liquidity Facility shall have been
satisfied or waived, and all conditions precedent to the
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
purchase of the Certificates by the Initial Purchasers under the Purchase
Agreement shall have been satisfied (unless any of such conditions precedent
shall have been waived by the Initial Purchasers).
(e) The Borrower shall have received a certificate, dated the date
hereof, signed by a duly authorized representative of the Liquidity Provider,
certifying that all conditions precedent to the effectiveness of Section 2.01
have been satisfied or waived.
Section 4.02 Conditions Precedent to Borrowing. The obligation of the
Liquidity Provider to make an Advance on the occasion of each Borrowing shall be
subject to the conditions precedent that the Effective Date shall have occurred
and, prior to the date of such Borrowing, the Borrower shall have delivered a
Notice of Borrowing which conforms to the terms and conditions of this Agreement
and has been completed as may be required by the relevant form of the Notice of
Borrowing for the type of Advances requested.
ARTICLE V
COVENANTS
Section 5.01 Affirmative Covenants of the Borrower. So long as any Advance
shall remain unpaid or the Liquidity Provider shall have any Maximum Commitment
hereunder or the Borrower shall have any obligation to pay any amount to the
Liquidity Provider hereunder, the Borrower shall, unless the Liquidity Provider
shall otherwise consent in writing:
(a) Performance of Agreements. Punctually pay or cause to be paid
all amounts payable by it under this Agreement and the other Operative
Agreements and observe and perform in all material respects the conditions,
covenants and requirements applicable to it contained in this Agreement and the
other Operative Agreements.
(b) Reporting Requirements. Furnish to the Liquidity Provider with
reasonable promptness, such other information and data with respect to the
transactions contemplated by the Operative Agreements as from time to time may
be reasonably requested by the Liquidity Provider; and permit the Liquidity
Provider, upon reasonable notice, to inspect the Borrower's books and records
with respect to such transactions and to meet with officers and employees of the
Borrower to discuss such transactions.
(c) Certain Operative Agreements. Furnish to the Liquidity Provider
with reasonable promptness any Operative Agreement entered into after the date
hereof.
Section 5.02 Negative Covenants of the Borrower. So long as any Advance
shall remain unpaid or the Liquidity Provider shall have any Maximum Commitment
hereunder or the Borrower shall have any obligation to pay any amount to the
Liquidity Provider hereunder, the Borrower shall not appoint or permit or suffer
to be appointed any successor Borrower without the written consent of the
Liquidity Provider, which consent shall not be unreasonably withheld or delayed.
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01 Liquidity Events of Default. If (a) any Liquidity Event of
Default has occurred and is continuing and (b) there is a Performing Note
Deficiency, the Liquidity Provider may, in its discretion, deliver to the
Borrower a Termination Notice, the effect of which shall be to cause (i) the
obligation of the Liquidity Provider to make Advances hereunder to expire on the
fifth Business Day after the date on which such Termination Notice is received
by the Borrower, (ii) the Borrower to promptly request, and the Liquidity
Provider to promptly make, a Final Advance in accordance with Section 2.02(d)
and Section 3.6(i) of the Intercreditor Agreement, (iii) all other outstanding
Advances to be automatically converted into Final Advances for purposes of
determining the Applicable Liquidity Rate for interest payable thereon, and (iv)
subject to Sections 2.07 and 2.09, all Advances (including, without limitation,
any Provider Advance and Applied Provider Advance), any accrued interest thereon
and any other amounts outstanding hereunder to become immediately due and
payable to the Liquidity Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Amendments, Etc. No amendment or waiver of any provision of
this Agreement, nor consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Liquidity Provider, and, in the case of an amendment, the Borrower, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
Section 7.02 Notices, Etc. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including sent by telecopier):
Borrower: Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Telephone: 000-000-0000
Telecopy: 000-000-0000
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
Liquidity
Provider: Westdeutsche Landesbank Girozentrale
New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Business/Credit Contact
Attention: Transportation Finance
Global Structured Finance/Americas
Telephone: 000-000-0000
Telecopy: 000-000-0000
Operations Contact
Attention: Xxxxxx Xxxxx
Loan Administration
Telephone: 000-000-0000
Telecopy: 000-000-0000
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 with receipt confirmed, (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 shall not be effective until received by the Liquidity Provider,
subject to the last sentence of Section 2.02(e). A copy of all notices delivered
hereunder to either party shall in addition be delivered to each of the parties
to the Participation Agreements at their respective addresses set forth therein.
Section 7.03 No Waiver: Remedies. No failure on the part of the Liquidity
Provider to exercise, and no delay in exercising, any right under this Agreement
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right under this Agreement preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
Section 7.04 Further Assurances. The Borrower agrees to do such further
acts and things and to execute and deliver to the Liquidity Provider such
additional assignments, agreements, powers and instruments as the Liquidity
Provider may reasonably require or deem advisable to carry into effect the
purposes of this Agreement and the other Operative Agreements or to better
assure and confirm unto the Liquidity Provider its rights, powers and remedies
hereunder and under the other Operative Agreements.
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
Section 7.05 Indemnification: Survival of Certain Provisions. The
Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Section 7.1 or 9.1, as the case may be, of any Participation
Agreement and Section 6(c) of the Note Purchase Agreement. In addition, the
Borrower agrees to indemnify, protect, defend and hold harmless the Liquidity
Provider from, against and in respect of, and shall pay on demand, all Expenses
of any kind or nature whatsoever (other than any Expenses of the nature
described in Section 3.01, 3.02 or 7.07 hereof or in the Fee Letter (regardless
of whether indemnified against pursuant to said Sections or in such Fee Letter))
that may be imposed, incurred by or asserted against any Liquidity Indemnitee,
in any way relating to, resulting from, or arising out of or in connection with
any action, suit or proceeding by any third party against such Liquidity
Indemnitee and relating to this Agreement, the Intercreditor Agreement, the Fee
Letter or any Participation Agreement; provided, however, that the Borrower
shall not be required to indemnify, protect, defend and hold harmless any
Liquidity Indemnitee in respect of any Expense of such Liquidity Indemnitee to
the extent such Expense is (i) attributable to the gross negligence or willful
misconduct of such Liquidity Indemnitee or any other Liquidity Indemnitee, (ii)
ordinary and usual operating overhead expense or (iii) attributable to the
failure by such Liquidity Indemnitee or any other Liquidity Indemnitee to
perform or observe any agreement, covenant or condition on its part to be
performed or observed in this Agreement, the Intercreditor Agreement, the Fee
Letter or any other Operative Agreement to which it is a party. The indemnities
contained in Section 6(c) of the Note Purchase Agreement and Section 7.1 or 9.1,
as the case may be, of any Participation Agreement and the provisions of
Sections 3.01, 302, 3.03, 3.09, 7.05 and 7.07 shall survive the termination of
this Agreement.
Section 7.06 Liability of the Liquidity Provider. (a) Neither the
Liquidity Provider nor any of its officers, directors, employees or affiliates
shall be liable or responsible for: (i) the use which may be made of the
Advances or any acts or omissions of the Borrower or any beneficiary or
transferee in connection therewith; (ii) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient, fraudulent or
forged; or (iii) the making of Advances by the Liquidity Provider against
delivery of a Notice of Borrowing and other documents which do not comply with
the terms hereof; provided, however, that the Borrower shall have a claim
against the Liquidity Provider, and the Liquidity Provider shall be liable to
the Borrower, to the extent of any damages suffered by the Borrower which were
the result of (A) the Liquidity Provider's willful misconduct or negligence in
determining whether documents presented hereunder comply with the terms hereof,
or (B) any breach by the Liquidity Provider of any of the terms of this
Agreement, including, but not limited to, the Liquidity Provider's failure to
make lawful payment hereunder after the delivery to it by the Borrower of a
Notice of Borrowing complying with the terms and conditions hereof.
(b) Neither the Liquidity Provider nor any of its officers,
employees, directors or Affiliates shall be liable or responsible in any respect
for (i) any error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in connection with this
Agreement or any Notice of Borrowing delivered hereunder, or (ii) any action,
inaction or omission which may be taken by it in good faith, absent willful
misconduct or negligence (in which
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
event the extent of the Liquidity Provider's potential liability to the Borrower
shall be limited as set forth in the preceding paragraph), in connection with
this Agreement or any Notice of Borrowing.
Section 7.07 Costs. Expenses and Taxes. The Borrower agrees to pay, or
cause to be paid (A) on the Effective Date and on such later date or dates on
which the 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 Class G Cash
Collateral Account. In addition, the Borrower shall pay any and all recording,
stamp and other similar taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing and recording of this Agreement
any other Operative Agreement and such other documents, and agrees to save the
Liquidity Provider harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes
or fees.
Section 7.08 Binding Effect; Participations. (a) This Agreement shall be
binding upon and inure to the benefit of the Borrower and the Liquidity Provider
and their respective successors and assigns, except that neither the Liquidity
Provider (except as otherwise provided in this Section 7.08) nor the Borrower
(except as contemplated by Section 3.08) shall have the right to assign its
rights or obligations hereunder or any interest herein without the prior written
consent of the other party, subject to the requirements of Section 7.08(b). The
Liquidity Provider may grant participations herein or in any of its rights
hereunder and under the other Operative Agreements to such Persons (other than
America West or any of its Affiliates) as the Liquidity Provider may in its sole
discretion select, subject to the requirements of Section 7.08(b). No such
participation by the Liquidity Provider, however, shall 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 the Liquidity Provider shall be
deemed also to include those of each of its participants that are banks
(subject, in each case, to the maximum amount that would have been incurred by
or attributable to the Liquidity Provider
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
directly if the Liquidity Provider, rather than the participant, had held the
interest participated other than a result of a change in law following the date
of any participation).
(b) If, pursuant to Section 7.08(a) above, the Liquidity Provider
sells any participation in this Agreement to any bank or other entity (each, a
"Participating Institution"), then, concurrently with the effectiveness of such
participation, the Participating Institution 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 shall be
required to be withheld by the Borrower or the Liquidity Provider with respect
to any payments to be made to such Participating Institution in respect of this
Agreement, (ii) furnish to the Liquidity Provider and the Borrower either (x) a
statement that it is incorporated under the laws of the United States or a state
thereof or (y) if it is not so incorporated, two copies of a properly completed
United States Internal Revenue Service Form W-8ECI or Form W-8BEN, as
appropriate, or other applicable form, certificate or document prescribed by the
Internal Revenue Service certifying, in each case, such Participating
Institution's entitlement to a complete exemption from United States federal
withholding tax in respect to any and all payments to be made hereunder, and
(iii) agree (for the benefit of the Liquidity Provider and the Borrower) to
provide the Liquidity Provider and the Borrower a new Form W-8ECI or Form
W-8BEN, as appropriate, (A) on or before the date that any such form expires or
becomes obsolete or (B) after the occurrence of any event requiring a change in
the most recent form previously delivered by it and prior to the immediately
following due date of any payment by the Borrower hereunder, certifying in the
case of a Form W-8BEN or Form W-8ECI that such Participating Institution is
entitled to a complete exemption from United States federal withholding tax on
payments under this Agreement. Unless the Borrower has received forms or other
documents reasonably satisfactory to it (and required by applicable law) from
the Participating Institution indicating that payments hereunder are not subject
to United States federal withholding tax, the Borrower shall withhold taxes as
required by law from such payments at the applicable statutory rate without any
obligation to make additional payments under Section 3.03.
(c) Notwithstanding the other provisions of this Section 7.08, the
Liquidity Provider may assign and pledge all or any portion of the Advances
owing to it to any Federal Reserve Bank or the United States Treasury as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank, provided that any payment in respect of such assigned Advances made by the
Borrower to the Liquidity Provider in accordance with the terms of this
Agreement shall satisfy the Borrower's obligations hereunder in respect of such
assigned Advance to the extent of such payment. No such assignment shall release
the Liquidity Provider from its obligations hereunder.
Section 7.09 Severability. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
Section 7.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF (OTHER THAN SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW)) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 7.11 Submission to Jurisdiction: Waiver of Jury Trial; Waiver of
Immunity.
(a) Each of the parties hereto 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 non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States of America for the
Southern District of New York, and the appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to each party hereto at its address set forth in Section 7.02, 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 xxx in any other jurisdiction.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE TO
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS
BEING ESTABLISHED, including, without limitation, contract claims, tort claims,
breach of duty claims and all other common law and statutory claims. The
Borrower and the Liquidity Provider each warrant and represent that it has
reviewed this waiver with its legal counsel, and that it knowingly and
voluntarily waives its jury trial rights following consultation with such legal
counsel. THIS WAIVER IS IRREVOCABLE, AND CANNOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THIS WAIVER SHALL APPLY TO
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT.
(c) The Liquidity Provider hereby waives any immunity it may have
from the jurisdiction of the courts of the United States or of any State and
waives any immunity any of its properties located in the United States may have
from attachment or execution upon a judgment entered by any such court under the
United States Foreign Sovereign Immunities Act of 1976 or any similar successor
legislation.
Section 7.12 Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto on separate
counterparts, each of which counterpart, 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 supersedes all prior understandings and agreements of
such parties.
Section 7.14 Headings. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
Section 7.15 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.
Section 7.16 Transfer. The Liquidity Provider hereby acknowledges and
consents to the Transfer contemplated by the Assignment and Assumption
Agreement.
27.
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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.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Subordination Agent and Trustee, as
Borrower
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Financial Services Officer
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW
YORK BRANCH
as Liquidity Provider
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Associate Director
I-1
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
Annex I to
Revolving Credit Agreement
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower
(the "Borrower"), hereby certifies to Westdeutsche Landesbank Girozentrale (the
"Liquidity Provider"), with reference to the Revolving Credit Agreement
(2001-1G), dated as of May-, 2001, between the Borrower and the Liquidity
Provider (the "Liquidity Agreement"; the terms defined therein and not otherwise
defined herein being used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of an Interest Advance by the Liquidity Provider to be used,
subject to clause (3)(v) below, for the payment of interest on the Class G
Certificates which was payable on __________ (the "Distribution Date") in
accordance with the terms and provisions of the Class G Trust Agreement
and the Class G Certificates, which Advance is requested to be made on
__________. The Interest Advance should be transferred to account
__________.
(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 G Certificates on such Distribution Date,
(ii) does not include any amount with respect to the payment of principal
of, or premium on, the Class G Certificate, the Class C Certificates or
the Class D Certificates, or interest on the Class C Certificates or the
Class D Certificates, (iii) was computed in accordance with the provisions
of the Class G Certificates, the Class G Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I), (iv) does not exceed the Maximum Available Commitment on the
date hereof, (v) does not include any amount of interest which was due and
payable on the Class G Certificates on such Distribution Date but which
remains unpaid due to the failure of the Depositary to pay any amount of
accrued interest on the Deposits on such Distribution Date, and (vi) has
not been and is not the subject of a prior or contemporaneous Notice of
Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower shall apply the same in accordance with
the terms of Section 3.6(b) of the Intercreditor Agreement, (b) no portion
of such amount shall be applied by the Borrower for any other purpose and
(c) no portion of such amount until so applied shall be commingled with
other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, the making of the Interest Advance as requested by this Notice of
Borrowing shall automatically reduce, subject to
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
reinstatement in accordance with the terms of the Liquidity Agreement, the
Maximum Available Commitment by an amount equal to the amount of the Interest
Advance requested to be made hereby as set forth in clause (i) of paragraph (3)
of this Notice of Borrowing and such reduction shall automatically result in
corresponding reductions in the amounts available to be borrowed pursuant to a
subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the __________ day of __________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Subordination Agent, as Borrower
By: _____________________________________
Name:
Title:
I-3
34
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest Advance Notice of
Borrowing]
I-4
35
Annex II to
Revolving Credit Agreement
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower
(the "Borrower"), hereby certifies to Westdeutsche Landesbank Girozentrale (the
"Liquidity Provider"), with reference to the Revolving Credit Agreement
(2001-1G), dated as of May-, 2001, between the Borrower and the Liquidity
Provider (the "Liquidity Agreement"; the terms defined therein and not otherwise
defined herein being used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Non-Extension Advance by the Liquidity Provider to be used
for the funding of the Class G Cash Collateral Account in accordance with
Section 3.6(d) of the Intercreditor Agreement, which Advance is requested
to be made on __________, ____. The Non-Extension Advance should be
transferred to __________.
(3) The amount of the Non-Extension Advance requested hereby (i) is
$__________, which equals the Maximum Available Commitment on the date
hereof and is to be applied in respect of the funding of the Class G Cash
Collateral Account in accordance with Section 3.6(d) of the Intercreditor
Agreement, (ii) does not include any amount with respect to the payment of
the principal of, or premium on, the Class G Certificates, the Class C
Certificates or the Class D Certificates, or interest on the Class C
Certificates or the Class D Certificates, (iii) was computed in accordance
with the provisions of the Class G Certificates, the Class G Trust
Agreement and the Intercreditor Agreement (a copy of which computation is
attached hereto as Schedule 1), and (iv) has not been and is not the
subject of a prior or contemporaneous Notice of Borrowing under the
Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Class G
Cash Collateral Account and apply the same in accordance with the terms of
Section 3.6(d) of the Intercreditor Agreement, (b) no portion of such
amount shall be applied by the Borrower for any other purpose and (c) no
portion of such amount until so applied shall be commingled with other
funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Non-Extension Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the obligation
of the Liquidity Provider to make further Advances under the Liquidity
Agreement; and (B) following the making by the Liquidity Provider of the
Non-Extension Advance requested by this Notice of Borrowing, the Borrower shall
not be entitled to request any further Advances under the Liquidity Agreement.
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[REVOLVING CREDIT AGREEMENT (2001-1G)]
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the __________ day of __________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Subordination Agent, as Borrower
By: _____________________________________
Name:
Title:
II-2
37
SCHEDULE I TO NON-EXTENSION ADVANCE
NOTICE OF BORROWING
[Insert copy of computations in accordance with
Non-Extension Advance Notice of Borrowing]
II-3
38
Annex III to
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower
(the "Borrower"), hereby certifies to Westdeutsche Landesbank Girozentrale (the
"Liquidity Provider"), with reference to the Revolving Credit Agreement
(2001-1G) dated as of May-, 2001, between the Borrower and the Liquidity
Provider (the "Liquidity Agreement"; the terms defined therein and not otherwise
defined herein being used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Downgrade Advance by the Liquidity Provider to be used for
the funding of the Class G Cash Collateral Account in accordance with
Section 3.6(c) of the Intercreditor Agreement by reason of the downgrading
of the short-term unsecured debt rating of the Liquidity Provider issued
by either Rating Agency below the Threshold Rating, which Advance is
requested to be made on __________. The Downgrade Advance should be
transferred to __________.
(3) The amount of the Downgrade Advance requested hereby (i) is
$__________ which equals the Maximum Available Commitment on the date
hereof and is to be applied in respect of the funding of the Class G Cash
Collateral Account in accordance with Section 3.6(c) of the Intercreditor
Agreement, (ii) does not include any amount with respect to the payment of
principal of, or premium on, the Class G Certificates, the Class C
Certificates, or the Class D Certificates, or interest on the Class C
Certificates or the Class D Certificates, (iii) was computed in accordance
with the provisions of the Class G Certificates, the Class G Trust
Agreement and the Intercreditor Agreement (a copy of which computation is
attached hereto as Schedule 1), 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 shall deposit such amount in the Class
G Cash Collateral Account and apply the same in accordance with the terms
of Section 3.6(c) of the Intercreditor Agreement, (b) no portion of such
amount shall be applied by the Borrower for any other purpose and (c) no
portion of such amount until so applied shall be commingled with other
funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Downgrade Advance as requested by this Notice
of Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement; and
(B) following the making by the Liquidity Provider of the Downgrade
III-1
39
[REVOLVING CREDIT AGREEMENT (2001-1G)]
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 __________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Subordination Agent, as Borrower
By: _____________________________________
Name:
Title:
III-2
40
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Downgrade Advance Notice of Borrowing]
III-3
41
Annex IV to
Revolving Credit Agreement
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower
(the "Borrower"), hereby certifies to Westdeutsche Landesbank Girozentrale (the
"Liquidity Provider"), with reference to the Revolving Credit Agreement
(2001-1G), dated as of May __, 2001, between the Borrower and the Liquidity
Provider (the "Liquidity Agreement"); the terms defined therein and not
otherwise defined herein being used herein as therein defined or referenced),
that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Final Advance by the Liquidity Provider to be used for the
funding of the Class G Cash Collateral Account in accordance with Section
3.6(i) of the Intercreditor Agreement by reason of the receipt by the
Borrower of a Termination Notice from the Liquidity Provider with respect
to the Liquidity Agreement, which Advance is requested to be made on
__________.
(3) The amount of the Final Advance requested hereby (i) is
$__________, which equals the Maximum Available Commitment on the date
hereof and is to be applied in respect of the funding of the Class G Cash
Collateral Account in accordance with Section 3.6(i) of the Intercreditor
Agreement, (ii) does not include any amount with respect to the payment of
principal of, or premium on the Class G Certificates, the Class C
Certificates or the Class D Certificates, or interest on the Class C
Certificates or the Class D Certificates, (iii) was computed in accordance
with the provisions of the Class G Certificates, the Class G Trust
Agreement and the Intercreditor Agreement (a copy of which computation is
attached hereto as Schedule I), and (iv) has not been and is not the
subject of a prior or contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower shall deposit such amount in the Class
G Cash Collateral Account and apply the same in accordance with the terms
of Section 3.6(i) of the Intercreditor Agreement, (b) no portion of such
amount shall be applied by the Borrower for any other purpose and (c) no
portion of such amount until so applied shall be commingled with other
funds held by the Borrower.
IV-1
42
[REVOLVING CREDIT AGREEMENT (2001-1G)]
(5) The Borrower hereby requests that the Advance requested hereby
be a Base Rate Advance [and that such Base Rate Advance be converted into
a LIBOR Advance on the third Business Day following your receipt of this
notice.](1)
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Final Advance as requested by this Notice of
Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement; and
(B) following the making by the Liquidity Provider of the Final Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the __________ day of __________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Subordination Agent, as Borrower
By: _____________________________________
Name:
Title:
--------
(1) Bracketed language may be included at Borrower's option.
IV-2
43
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Final Advance Notice of Borrowing]
IV-3
44
Annex V to
Revolving Credit Agreement
NOTICE OF TERMINATION
[Date]
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Re: Revolving Credit Agreement (2001-1G), dated as of May-, 2001, between
Wilmington Trust Company, as Subordination Agent, as agent and trustee for
the America West Airlines 2001-1G Pass Through Trust, as Borrower, and
Westdeutsche Landesbank Girozentrale, New York Branch (the "Liquidity
Agreement")
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.01 of the Liquidity
Agreement, by reason of the occurrence of a Liquidity Event of Default and the
existence of a Performing Note Deficiency (each as defined therein), we are
giving this notice to you in order to cause (i) our obligations to make Advances
(as defined therein) under such Liquidity Agreement to terminate on the fifth
Business Day after the date on which you receive this notice and (ii) you to
request a Final Advance under the Liquidity Agreement pursuant to Section 3.6(i)
of the Intercreditor Agreement (as defined in the Liquidity Agreement) as a
consequence of your receipt of this notice.
THIS NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR UNDER THE
LIQUIDITY AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY
AGREEMENT SHALL TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU
RECEIVE THIS NOTICE.
V-1
45
[REVOLVING CREDIT AGREEMENT (2001-1G)]
Very truly yours,
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW
YORK BRANCH, as Liquidity Provider
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
cc: Wilmington Trust Company,
as Class G Trustee
V-2
46
Annex VI to
Revolving Credit Agreement
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Re: Revolving Credit Agreement (2001-1G), dated as of May-, 2001, between
Wilmington Trust Company, as Subordination Agent, as agent and trustee for
the America West Airlines 2001-1G Pass Through Trust, as Borrower, and
Westdeutsche Landesbank Girozentrale (the "Liquidity Agreement")
Ladies and Gentlemen:
For value received, the undersigned hereby irrevocably transfers to:
_________________________________________
[Name of Transferee]
_________________________________________
[Address of Transferee]
all rights and obligations of the undersigned as Borrower and Subordination
Agent under the Liquidity Agreement referred to above. The transferee has
succeeded the undersigned as Borrower and Subordination Agent under the
Intercreditor Agreement referred to in the first paragraph of the Liquidity
Agreement, pursuant to the terms of Section 8.1 of the Intercreditor Agreement.
By this transfer, all rights of the undersigned as Borrower and
Subordination Agent under the Liquidity Agreement are transferred to the
transferee and the transferee shall hereafter have the sole rights and
obligations as Borrower and Subordination Agent 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 __________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Subordination Agent, as Borrower
By: _____________________________________
Name:
Title:
VI-1
