Exhibit 4(c)(2)
EXECUTION COPY
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REVOLVING CREDIT AGREEMENT
(2002-1G-2)
Dated as of August 5, 2002
between
STATE STREET BANK AND TRUST COMPANY
as Subordination Agent,
as Borrower
and
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH
as Primary Liquidity Provider
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Relating to
Northwest Airlines Pass Through Trust 2002-1G-2
6.264% Northwest Airlines Pass Through Certificates,
Series 2002-1G-2
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS....................................................... 1
Section 1.01. Certain Defined Terms.............................. 1
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENT............................... 1
Section 2.01. The Advances....................................... 7
Section 2.02. Making the Advances................................ 7
Section 2.03. Fees............................................... 9
Section 2.04. Reduction or 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 Primary Liquidity Provider Under
the Intercreditor Agreement........................ 11
Section 2.08. Book Entries....................................... 11
Section 2.09. Payments from Available Funds Only................. 11
Section 2.10. Extension of the Expiry Date; Non-Extension
Advance............................................ 12
Section 2.11. Right to Further Extend Expiry Date................ 12
ARTICLE III OBLIGATIONS OF THE BORROWER..................................... 13
Section 3.01. Increased Costs.................................... 13
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....................... 16
Section 3.07. Interest........................................... 16
Section 3.08. Replacement of Borrower............................ 17
Section 3.09. Funding Loss Indemnification....................... 17
Section 3.10. Illegality......................................... 17
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Page
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
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.... 22
Section 7.06. Liability of the Primary Liquidity Provider........ 23
Section 7.07. Costs, Expenses and Taxes.......................... 23
Section 7.08. Binding Effect; Participations..................... 24
Section 7.09. Severability....................................... 25
Section 7.10. GOVERNING LAW...................................... 25
Section 7.11. Submission to Jurisdiction; Waiver of Jury
Trial; Waiver of Immunity.......................... 25
Section 7.12. Execution in Counterparts.......................... 26
Section 7.13. Entirety........................................... 26
Section 7.14. Headings........................................... 26
Section 7.15. PRIMARY LIQUIDITY PROVIDER'S OBLIGATION TO
MAKE ADVANCES...................................... 27
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ANNEXES
ANNEX I Interest Advance Notice of Borrowing
ANNEX II Non-Extension Advance Notice of Borrowing
ANNEX III Downgrade Advance Notice of Borrowing
ANNEX IV Final Advance Notice of Borrowing
ANNEX V Notice of Termination
ANNEX VI Notice of Replacement Subordination Agent
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REVOLVING CREDIT AGREEMENT (2002-1G-2)
This REVOLVING CREDIT AGREEMENT (2002-1G-2) dated as of August
5, 2002, between STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust
company, not in its individual capacity but solely as Subordination Agent
under the Intercreditor Agreement (each as defined below), (the "Borrower"),
and WESTDEUTSCHE LANDESBANK GIROZENTRALE, a German banking institution
organized under the laws of the State of North Rhine - Westphalia ("WestLB"),
acting through its New York Branch, (the "Primary Liquidity Provider").
W I T N E S S E T H:
WHEREAS, pursuant to the Class G-2 Trust Agreement (such term
and all other capitalized terms used in these recitals having the meanings set
forth or referred to in Section 1.01), the Class G-2 Trust is issuing the
Class G-2 Certificates; and
WHEREAS, the Borrower, in order to support the timely payment
of a portion of the interest on the Class G-2 Certificates in accordance with
their terms, has requested the Primary Liquidity Provider to enter into this
Agreement, providing in part for the Borrower to request in specified
circumstances that Advances be made hereunder.
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. (a) Definitions. As used
in this Agreement and unless otherwise expressly indicated, or unless the
context clearly requires otherwise, the following capitalized terms shall have
the following respective meanings for all purposes of this Agreement:
"Advance" means an Interest Advance, a Final Advance, a
Provider Advance, an Applied Provider Advance or an Unpaid Advance,
as the case may be.
"Applicable Liquidity Rate" has the meaning assigned to such
term in Section 3.07(g).
"Applicable Margin" means (a) with respect to any Unpaid
Advance or Applied Provider Advance, 2.50% per annum, or (b) with
respect to any Unapplied Provider Advance, the rate per annum
specified in the Fee Letter applicable to this Agreement.
"Applied Downgrade Advance" has the meaning assigned to such
term in Section 2.06(a).
"Applied Non-Extension Advance" has the meaning assigned to
such term in Section 2.06(a).
"Applied Provider Advance" has the meaning assigned to such
term in Section 2.06(a).
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum is at all times equal
to (a) the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or if such rate is not so
published for any day that is a Business Day, the average of the
quotations for such day for such transactions received by the
Primary Liquidity Provider from three Federal funds brokers of
recognized standing selected by the Primary Liquidity Provider, plus
(b) one quarter of one percent (0.25%) per annum.
"Base Rate Advance" means an Advance that bears interest at a
rate based upon the Base Rate.
"Borrower" has the meaning assigned to such term in the recital
of parties to this Agreement.
"Borrowing" means the making of Advances requested by delivery
of a Notice of Borrowing.
"Business Day" means any day other than a Saturday or Sunday or
a day on which commercial banks are required or authorized to close
in New York, New York, Minneapolis, Minnesota, Boston, Massachusetts
and Salt Lake City, Utah, or, so long as any Class G-2 Certificate
is outstanding, the city and state in which the Class G-2 Trustee,
the Borrower or any Loan Trustee maintains its Corporate Trust
Office or receives or disburses funds, and, if the applicable
Business Day relates to any Advance or other amount bearing interest
based on the LIBOR Rate, on which dealings are carried on in the
London interbank market.
"Consent Notice" has the meaning assigned to such term in
Section 2.10.
"Consent Period" has the meaning assigned to such term in
Section 2.10.
"Delivery Period" means the period from the date hereof through
March 31, 2004.
"Deposit Agreement" means the Deposit Agreement, dated August
5, 2002, between Xxxxx Fargo Bank Northwest, National Association,
as Escrow Agent and Credit Suisse First Boston, New York Branch, as
Depositary, pertaining to the Class G-2 Certificates, as the same
may be amended, modified or supplemented from time to time in
accordance with the terms thereof.
"Depositary" has the meaning assigned to such term in the
Deposit Agreement.
"Deposits" has the meaning assigned to such terms in the
Deposit Agreement.
"Downgrade Advance" means an Advance made pursuant to Section
2.02(c).
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"Downgrade Event" means a downgrading of the Primary Liquidity
Provider's short-term rating issued by any Rating Agency below the
applicable Threshold Rating unless each Rating Agency shall have
confirmed in writing on or prior to the date of such downgrading
that such downgrading will not result in the downgrading, withdrawal
or suspension of the ratings of the Class G-2 Certificates (without
regard to the Policies), in which case, such downgrading of the
Primary Liquidity Provider's short-term rating shall not constitute
a Downgrade Event.
"Effective Date" has the meaning specified in Section 4.01. The
delivery of the certificate of the Primary Liquidity Provider
contemplated by Section 4.01(e) shall be conclusive evidence that
the Effective Date has occurred.
"Excluded Taxes" means (i) Taxes imposed on the overall net
income of the Primary Liquidity Provider and (ii) Excluded
Withholding Taxes.
"Excluded Withholding Taxes" means (i) withholding Taxes
imposed by the United States except to the extent that such United
States withholding Taxes are imposed as a result of any change in
applicable law (excluding from "change in applicable law" for this
purpose, a change in an applicable treaty or other change in law
affecting the applicability of a treaty) after the date hereof, or
in the case of a successor Primary Liquidity Provider (including a
transferee of an Advance) or Lending Office, after the date on which
such successor Primary Liquidity Provider obtains its interest or on
which the Lending Office is changed, and (ii) any withholding Taxes
imposed by the United States which are imposed or increased as a
result of the Primary Liquidity Provider failing to deliver to the
Borrower any certificate or document (which certificate or document
in the good faith judgment of the Primary Liquidity Provider it is
legally entitled to provide) to establish that payments under this
Agreement are exempt from (or entitled to a reduced rate of)
withholding Tax.
"Expenses" means liabilities, obligations, damages,
settlements, penalties, claims, actions, suits, costs, expenses, and
disbursements (including, without limitation, reasonable fees and
disbursements of legal counsel and costs of investigation), provided
that Expenses shall not include any Taxes.
"Expiry Date" means August 3, 2003, initially, or any date to
which the Expiry Date is extended pursuant to Section 2.10.
"Extension Notice" has the meaning assigned to such term in
Section 2.10.
"Fee Letters" means, collectively, (i) the Fee Letter dated as
of the date hereof between the Primary Liquidity Provider and the
Subordination Agent with respect to the initial Class G-2 Primary
Liquidity Facility and (ii) any fee letter entered into between the
Subordination Agent and any Replacement Primary Liquidity Provider
in respect of such Primary Liquidity Facility.
"Final Advance" means an Advance made pursuant to Section
2.02(d).
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"Intercreditor Agreement" means the Intercreditor Agreement
dated the date hereof, among the Trustees, the Primary Liquidity
Provider, the liquidity provider under each Primary Liquidity
Facility (other than this Agreement), the Above-Cap Liquidity
Provider, the Policy Provider and the Subordination Agent, as the
same may be amended, supplemented or otherwise modified from time to
time in accordance with its terms.
"Interest Advance" means an Advance made pursuant to Section
2.02(a).
"Interest Period" means, with respect to any LIBOR Advance,
each of the following periods:
(i) the period beginning on the third Business Day
following either (a) the Primary Liquidity
Provider's receipt of the Notice of Borrowing for
such LIBOR Advance or (b) the withdrawal of funds
from the Class G-2 Primary Cash Collateral Account
for the purpose of paying interest on the Class G-2
Certificates as contemplated by Section 2.06(a)
hereof and, in either case, ending on the next
Regular Distribution Date; and
(ii) each subsequent period commencing on the last day
of the immediately preceding Interest Period and
ending on the next Regular Distribution Date;
provided, however, that (I) if an Unapplied Provider Advance which
is a LIBOR Advance becomes an Applied Provider Advance, the Interest
Period then applicable to such Unapplied Provider Advance shall be
applicable to such Applied Provider Advance and (II) 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 Primary Liquidity Provider's
receipt of the Notice of Borrowing for such Final Advance (in the
case of clause (x) above) or the last day of the Interest Period
then applicable to such outstanding Advances (in the case of clause
(y) above).
"Lending Office" means the office of the Primary Liquidity
Provider presently located in New York, New York, or such other
lending office as the Primary Liquidity Provider from time to time
shall notify the Borrower as its lending office hereunder.
"LIBOR Advance" means an Advance bearing interest at a rate
based upon the LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period, (i)
the rate per annum appearing on display page 3750 (British Bankers
Association--LIBOR) of the Dow Xxxxx Markets Service (or any
successor or substitute therefor) at approximately 11:00 A.M.
(London time) two Business Days before the first day of such
Interest Period, as the rate for dollar deposits with a maturity
comparable to such Interest Period, or (ii) if the rate calculated
pursuant to clause (i) above is not available, the average (rounded
upwards, if necessary, to the next 1/16 of 1%) of the rates per
annum at which deposits in dollars are offered for the relevant
Interest Period by three banks of recognized standing selected by
the Primary Liquidity Provider in the London interbank market at
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approximately 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period in an amount approximately equal
to the principal amount of the LIBOR Advance to which such Interest
Period is to apply and for a period comparable to such Interest
Period.
"Liquidity Event of Default" means the occurrence of the
following: (i) all of the Equipment Notes shall have been either
declared to be immediately due and payable or shall not have been
paid at their final maturity; provided that, if an acceleration of
the Equipment Notes occurs during the Delivery Period, a Liquidity
Event of Default shall occur only if the aggregate principal amount
of the Equipment Notes exceeds $300.0 million, or (ii) a Northwest
Bankruptcy Event.
"Liquidity Indemnitee" means (i) the Primary Liquidity
Provider, (ii) the directors, officers, employees and agents of the
Primary Liquidity Provider, and (iii) the successors and permitted
assigns of the persons described in clauses (i) and (ii), inclusive.
"Maximum Available Commitment" shall mean, subject to the
proviso contained in the third sentence of Section 2.02(a), at any
time of determination, (a) the Maximum Commitment at such time less
(b) the aggregate amount of each Interest Advance outstanding at
such time; provided that following a Provider Advance or a Final
Advance, the Maximum Available Commitment shall be zero.
"Maximum Commitment" means (i) in the case of any day occurring
before the first Regular Distribution Date, $14,094,000.00 and (ii)
in the case of any day occurring on or after the first Regular
Distribution Date, the Required Amount on such day.
"Non-Excluded Tax" has the meaning specified in Section
3.03(a).
"Non-Extension Advance" means an Advance made pursuant to
Section 2.02(b).
"Notice of Borrowing" has the meaning specified in Section
2.02(e).
"Notice of Replacement Subordination Agent" has the meaning
specified in Section 3.08.
"Performing Note Deficiency" means any time that less than 65%
of the then aggregate outstanding principal amount of all Equipment
Notes are Performing Equipment Notes.
"Primary Liquidity Provider" has the meaning assigned to such
term in the recital of parties to this Agreement.
"Prospectus Supplement" means the Prospectus Supplement dated
July 29, 2002, relating to the Class G-1 Certificates, Class G-2
Certificates, the Class C-1 Certificates and the Class C-2
Certificates, as such Prospectus Supplement may be amended or
supplemented.
"Provider Advance" means a Downgrade Advance or a Non-Extension
Advance.
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"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-2 Certificates, that would be
payable on the Class G-2 Certificates on each of the six successive
Regular Distribution Dates immediately following such day or, if
such day is a Regular Distribution Date, on such day and the
succeeding five Regular Distribution Dates, in each case calculated
on the basis of the Pool Balance of the Class G-2 Certificates on
such day and without regard to expected future payments of principal
on the Class G-2 Certificates. Notwithstanding the above, in the
event of a Policy Provider Election, the Pool Balance, for purposes
of this definition, shall be deemed to be reduced by an amount (if
positive) by which (a) the then outstanding principal balance of the
Series G-2 Equipment Note in respect of which the 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-2 Equipment Note.
"Termination Date" means the earliest to occur of the
following: (i) the Expiry Date; (ii) the date on which the Borrower
delivers to the Primary Liquidity Provider a certificate, signed by
a Responsible Officer of the Borrower, certifying that all of the
Class G-2 Certificates have been paid in full (or provision has been
made for such payment in accordance with the Intercreditor Agreement
and the Trust Agreements) or are otherwise no longer entitled to the
benefits of this Agreement; (iii) the date on which the Borrower
delivers to the Primary Liquidity Provider a certificate, signed by
a Responsible Officer of the Borrower, certifying that a Replacement
Primary Liquidity Facility has been substituted for this Agreement
in full pursuant to Section 3.6(e) of the Intercreditor Agreement;
(iv) the fifth Business Day following the receipt by the Borrower of
a Termination Notice from the Primary Liquidity Provider pursuant to
Section 6.01 hereof; and (v) the date on which no Advance is or may
(including by reason of reinstatement as herein provided) become
available for a Borrowing hereunder.
"Termination Notice" means the Notice of Termination
substantially in the form of Annex V to this Agreement.
"Transferee" has the meaning assigned to such term in Section
7.08(b).
"Unapplied Downgrade Advance" means any Downgrade Advance other
than an Applied Downgrade Advance.
"Unapplied Non-Extension Advance" means any Non-Extension
Advance other than an Applied Non-Extension Advance.
"Unapplied Provider Advance" means any Provider Advance other
than an Applied Provider Advance.
"Unpaid Advance" has the meaning assigned to such term in
Section 2.05.
"Withdrawal Notice" has the meaning assigned to such term in
Section 2.10.
6
(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:
"Above-Cap Liquidity Provider", "Acceleration", "Affiliate", "Break
Amount Certificates", "Capped Interest Rate", "Certificates", "Class
G-2 Certificateholders", "Class G-2 Certificates", "Class G-2
Primary Cash Collateral Account", "Class G-2 Trust", "Class G-2
Trust Agreement", "Class G-2 Trustee", "Class G-1 Certificates",
"Class C-1 Certificates", "Class C-2 Certificates", "Class D
Certificates", "Closing Date", "Controlling Party", "Corporate Trust
Office", "Delivery Period Expiry Date", "Distribution Date",
"Downgraded Facility", "Equipment Notes", "Final Legal Distribution
Date", "Financing Agreement", "Fitch", "Indenture", "Interest
Payment Date", "Investment Earnings", "Liquidity Obligations", "Loan
Trustee", "Xxxxx'x", "Non-Extended Facility", "Northwest",
"Northwest Bankruptcy Event", "Note Purchase Agreement", "Operative
Agreements", "Performing Equipment Note", "Person", "Policy",
"Policy Provider", "Policy Provider Election", "Pool Balance",
"Prepayment Premium", "Primary Liquidity Facility", "Rating Agency",
"Ratings Confirmation", "Regular Distribution Date", "Replacement
Primary Liquidity Facility", "Responsible Officer", "Scheduled
Payment", "Series G-2 Equipment Note", "Special Payment", "Standard
& Poor's", "Stated Interest Rate", "Subordination Agent", "Taxes",
"Threshold Rating", "Trust Agreements", "Trustee", "Underwriters",
"Underwriting Agreement" and "Written Notice".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances. The Primary Liquidity Provider
hereby irrevocably agrees, on the terms and conditions hereinafter set forth,
to make Advances to the Borrower from time to time on any Business Day during
the period from the Effective Date until 1:00 P.M. (New York City time) on the
Expiry Date (unless the obligations of the Primary Liquidity Provider shall be
earlier terminated in accordance with the terms of Section 2.04(b)) in an
aggregate amount at any time outstanding not to exceed the Maximum Commitment.
Section 2.02. Making the Advances. (a) Interest Advances shall
be made in one or more Borrowings by delivery to the Primary Liquidity
Provider of one or more written and completed Notices of Borrowing in
substantially the form of Annex I attached hereto, signed by a Responsible
Officer of the Borrower, in an amount not exceeding the Maximum Available
Commitment at such time and shall be used solely for the payment when due of
interest on the Class G-2 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). Subject to the provisions of Section 3.6(g) of
the Intercreditor Agreement, upon repayment to the Primary Liquidity Provider
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
7
such repaid Interest Advance, but not to exceed the Maximum Commitment;
provided, however, that the Maximum Available Commitment shall not be so
reinstated at any time if (i) a Liquidity Event of Default shall have occurred
and be continuing and (ii) there is a Performing Note Deficiency.
(b) A Non-Extension Advance shall be made in a single Borrowing
if this Agreement is not renewed in accordance with Section 3.6(d) of the
Intercreditor Agreement (unless a Replacement Primary 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 Primary 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-2 Primary 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 the occurrence of a Downgrade Event (as provided for in Section 3.6(c) of
the Intercreditor Agreement) unless a Replacement Primary Liquidity Facility
to replace this Agreement shall have been previously delivered to the Borrower
in accordance with said Section 3.6(c), by delivery to the Primary Liquidity
Provider of a written and completed Notice of Borrowing in substantially the
form of Annex III attached hereto, signed by a Responsible Officer of the
Borrower, in an amount equal to the Maximum Available Commitment at the time
of such borrowing, and shall be used to fund the Class G-2 Primary Cash
Collateral Account in accordance with said Section 3.6(c) and Section 3.6(f)
of the Intercreditor Agreement.
(d) A Final Advance shall be made in a single Borrowing upon
the receipt by the Borrower of a Termination Notice from the Primary Liquidity
Provider pursuant to Section 6.01 hereof by delivery to the Primary Liquidity
Provider of a written and completed Notice of Borrowing in substantially the
form of Annex IV attached hereto, signed by a Responsible Officer of the
Borrower, in an amount equal to the Maximum Available Commitment at such time,
and shall be used to fund the Class G-2 Primary Cash Collateral Account in
accordance with Section 3.6(i) and Section 3.6(f) of the Intercreditor
Agreement.
(e) Each Borrowing shall be made on notice in writing (a
"Notice of Borrowing") in substantially the form required by Section 2.02(a),
2.02(b), 2.02(c) or 2.02(d), as the case may be, given by the Borrower to the
Primary Liquidity Provider. If a Notice of Borrowing is delivered by the
Borrower in respect of any Borrowing no later than 1:00 p.m. (New York City
time) on a Business Day, upon satisfaction of the conditions precedent set
forth in Section 4.02 with respect to a requested Borrowing, the Primary
Liquidity Provider shall make available to the Borrower, in accordance with
its payment instructions, the amount of such Borrowing in U.S. dollars and
immediately available funds, before 4:00 p.m. (New York City time) on such
Business Day or on such later Business Day specified in such Notice of
Borrowing. If a Notice of Borrowing is delivered by the Borrower in respect of
any Borrowing after 1:00 p.m. (New York City time) on a Business Day, upon
satisfaction of the conditions precedent set forth in Section 4.02 with
respect to a requested Borrowing, the Primary Liquidity Provider shall make
available to the Borrower, in accordance with its payment instructions, the
8
amount of such Borrowing in U.S. dollars and immediately available funds,
before 12:00 Noon (New York City time) on the first Business Day next
following the day of receipt of such Notice of Borrowing or on such later
Business Day specified by the Borrower in such Notice of Borrowing. Payments
of proceeds of a Borrowing shall be made by wire transfer of immediately
available funds to the Borrower in accordance with such wire transfer
instructions as the Borrower shall furnish from time to time to the Primary
Liquidity Provider for such purpose. Each Notice of Borrowing shall be
irrevocable and binding on the Borrower.
(f) Upon the making of any Advance requested pursuant to a
Notice of Borrowing, in accordance with the Borrower's payment instructions,
the Primary Liquidity Provider shall be fully discharged of its obligation
hereunder with respect to such Notice of Borrowing, and the Primary 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 Primary Liquidity Provider makes an Advance requested
pursuant to a Notice of Borrowing before 12:00 Noon (New York City time) on
the second Business Day after the date of payment specified in said Section
2.02(e), the Primary Liquidity Provider shall have fully discharged its
obligations hereunder with respect to such Advance and an event of default
shall not have occurred hereunder. Following the making of any Advance
pursuant to Section 2.02(b), (c) or (d) hereof to fund the Class G-2 Primary
Cash Collateral Account, the Primary Liquidity Provider shall have no interest
in or rights to the Class G-2 Primary Cash Collateral Account, the funds
constituting such Advance or any other amounts from time to time on deposit in
the Class G-2 Primary Cash Collateral Account; provided that the foregoing
shall not affect or impair the obligations of the Subordination Agent to make
the distributions contemplated by Section 3.6(e) or (f) of the Intercreditor
Agreement and provided further, that the foregoing shall not affect or impair
the rights of the Primary Liquidity Provider to provide written instructions
with respect to the investment and reinvestment of amounts in 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 Primary 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 Primary
Liquidity Provider the fees set forth in the Fee Letter applicable to this
Agreement.
Section 2.04. Reduction or Termination of the Maximum
Commitment.
(a) Reduction. Promptly following each date on which the
Required Amount is reduced as a result of a reduction in the Pool Balance of
the Class G-2 Certificates (including be reason of a Policy Provider Election
with respect to one or more Series G-2 Equipment Notes) or otherwise, the
Maximum Commitment shall automatically be reduced to an amount equal to such
reduced Required Amount (as calculated by the Borrower). The Borrower shall
give notice of any such automatic reduction of the Maximum Commitment to the
Primary Liquidity Provider within two Business Days thereof. The failure by
the Borrower to furnish any such notice shall not affect such automatic
reduction of the Maximum Commitment.
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(b) Termination. Upon the making of any Provider Advance or
Final Advance hereunder or the occurrence of the Termination Date, the
obligation of the Primary Liquidity Provider to make further Advances
hereunder shall automatically and irrevocably terminate, and the Borrower
shall not be entitled to request any further Borrowing hereunder.
Section 2.05. Repayments of Interest Advances or the Final
Advance. Subject to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby
agrees, without notice of an Advance or demand for repayment from the Primary
Liquidity Provider (which notice and demand are hereby waived by the
Borrower), to pay, or to cause to be paid, to the Primary Liquidity Provider
on each date on which the Primary Liquidity Provider shall make an Interest
Advance or the Final Advance, an amount equal to (a) the amount of such
Advance (any such Advance, until repaid, is referred to herein as an "Unpaid
Advance"), plus (b) interest on the amount of each such Unpaid Advance as
provided in Section 3.07 hereof; provided that if (i) the Primary 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 Primary Liquidity Facility shall become a Downgraded
Facility or Non-Extended Facility at any time when unreimbursed Interest
Advances have reduced the Maximum Available Commitment to zero, then such
Interest Advances shall cease to constitute Unpaid Advances and shall be
deemed to have been changed into an Applied Downgrade Advance or an Applied
Non-Extension Advance, as the case may be, for all purposes of this Agreement
(including, without limitation, for the purpose of determining when such
Interest Advance is required to be repaid to the Primary Liquidity Provider in
accordance with Section 2.06 and for the purposes of Section 2.06(b)). The
Borrower and the Primary 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 Primary 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-2 Primary Cash Collateral Account, invested and withdrawn from the
Class G-2 Primary 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
Primary 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-2 Primary Cash Collateral Account for the purpose
of paying interest on the Class G-2 Primary Certificates in accordance with
Section 3.6(f) of the Intercreditor Agreement (the amount of any such
withdrawal being (y) in the case of a Downgrade Advance, an "Applied Downgrade
Advance" and (z) in the case of a Non-Extension Advance, an "Applied
Non-Extension Advance" and, together with an Applied Downgrade Advance, an
"Applied Provider Advance") shall thereafter (subject to Section 2.06(b)) be
treated as an Interest Advance under this Agreement for purposes of
determining the Applicable Liquidity Rate for interest payable thereon;
provided further, however, that if, following the making of a Provider
Advance, the Primary Liquidity Provider delivers a Termination Notice to the
Borrower pursuant to Section 6.01 hereof, such Provider Advance shall
thereafter be treated as a Final Advance under this Agreement for purposes of
determining the Applicable Liquidity Rate for interest payable thereon.
Subject to Sections 2.07 and 2.09 hereof, immediately upon the withdrawal of
any amounts from the Class G-2 Primary
10
Cash Collateral Account on account of a reduction in the Required Amount, the
Borrower shall repay to the Primary Liquidity Provider a portion of the
Provider Advances in a principal amount equal to such reduction, plus interest
on the principal amount prepaid as provided in Section 3.07 hereof.
(b) At any time when an Applied Provider Advance (or any
portion thereof) is outstanding, upon the deposit in the Class G-2 Primary
Cash Collateral Account of any amount pursuant to clause "third" of Section
2.4(b) of the Intercreditor Agreement, clause "third" of Section 3.2 of the
Intercreditor Agreement or clause "fourth" of Section 3.3 of the Intercreditor
Agreement (any such amount being a "Replenishment Amount") for the purpose of
replenishing or increasing the balance thereof up to the Required Amount at
such time, (i) the aggregate outstanding principal amount of all Applied
Provider Advances (and of Provider Advances treated as an Interest Advance for
purposes of determining the Applicable Liquidity Rate for interest payable
thereon) shall be automatically reduced by the amount of such Replenishment
Amount and (ii) the aggregate outstanding principal amount of all Unapplied
Provider Advances shall be automatically increased by the amount of such
Replenishment Amount.
(c) Upon the provision of a Replacement Primary 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-2
Primary Cash Collateral Account after giving effect to any Applied Provider
Advance on the date of such replacement shall be reimbursed to the Primary
Liquidity Provider, but only to the extent such amounts are necessary to repay
in full to the Primary Liquidity Provider all amounts owing to it hereunder.
Section 2.07. Payments to the Primary Liquidity Provider Under
the Intercreditor Agreement. In order to provide for payment or repayment to
the Primary 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 Primary
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 Primary Liquidity Provider in accordance with
the terms thereof. Amounts so paid to the Primary Liquidity Provider shall be
applied by the Primary Liquidity Provider to Liquidity Obligations then due
and payable in accordance with the Intercreditor Agreement or, if not provided
for in the Intercreditor Agreement, then in such manner as the Primary
Liquidity Provider shall deem appropriate.
Section 2.08. Book Entries. The Primary 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 Primary Liquidity Provider to maintain such account or accounts shall
not affect the obligations of the Borrower in respect of Advances.
Section 2.09. Payments from Available Funds Only. All payments
to be made by the Borrower under this Agreement shall be made only from the
amounts that constitute Scheduled Payments, Special Payments or payments under
Section 7(c) of the Participation Agreements and Section 7 of the Note
Purchase Agreement and only to the extent that the
11
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 Primary Liquidity Provider agrees that it will look solely to
such amounts to the extent available for distribution to it as provided in the
Intercreditor Agreement and this Agreement and that the Borrower, in its
individual capacity, is not personally liable to it for any amounts payable or
liability under this Agreement except as expressly provided in this Agreement,
the Intercreditor Agreement or any Participation Agreement. Amounts on deposit
in the Class G-2 Primary Cash Collateral Account shall be available to the
Borrower to make payments under this Agreement only to the extent and for the
purposes expressly contemplated in Section 3.6(f) of the Intercreditor
Agreement.
Section 2.10. Extension of the Expiry Date; Non-Extension
Advance. The Borrower may, from time to time, by notice to the Primary
Liquidity Provider (each such notice being an "Extension Notice") given no
later than the 40th day and no earlier than the 60th day prior to the then
applicable Expiry Date, request that the Primary Liquidity Provider renew its
obligations hereunder for a period ending on a date (the "Renewal Date") that
is the earlier of (i) the date which is 15 days after the Final Legal
Distribution Date for the Class G-2 Certificates and (ii) the date that is the
day immediately preceding the 364th day occurring after the last day of the
Consent Period (as hereinafter defined). Whether or not the Primary Liquidity
Provider has received a request from the Borrower, such Primary Liquidity
Provider may, but shall not be obligated to, by a notice (a "Consent Notice")
to the Borrower, given during the period commencing on the date that is 60
days prior to the Expiry Date then in effect (or, if earlier, the date of such
Primary Liquidity Provider's receipt of such request, if any, from the
Borrower) and ending on the date that is 25 days prior to the Expiry Date then
in effect for such Primary Liquidity Facility (such period, with respect to
such Primary Liquidity Facility, the "Consent Period"), advise the Borrower
whether, in its sole discretion, it consents to such extension of its
obligations hereunder for the period ending on the Renewal Date, in which
event the Renewal Date shall become the Expiry Date hereunder, which consent
may be given or withheld by the Primary Liquidity Provider in its absolute and
sole discretion; provided, however, that such extension shall not be effective
with respect to the Primary Liquidity Provider if by a notice (a "Withdrawal
Notice") to the Borrower during the Consent Period the Primary Liquidity
Provider revokes its Consent Notice. If a Withdrawal Notice has been given
during the applicable Consent Period or if the Primary Liquidity Provider
fails irrevocably and unconditionally to advise the Borrower on or before the
date on which such Consent Period ends that it agrees to so extend its
obligations hereunder, (and, in each case, if the Primary 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) hereof
and Section 3.6(d) of the Intercreditor Agreement.
Section 2.11. Right to Further Extend Expiry Date. Subject to
the proviso in the immediately succeeding sentence, the Primary Liquidity
Provider shall have the right at any time and without the consent of the
Borrower to extend the then effective Expiry Date up to the date that is 15
days after the Final Legal Distribution Date for the Class G-2 Certificates by
giving not less than five nor more than ten days' prior written notice of such
extension to the Borrower, the Class G-2 Trustee and Northwest (which notice
shall specify the effective date of such extension (the "Extension Effective
Date")). On the Extension Effective Date, the then effective Expiry
12
Date shall be so extended without any further act; provided, however, that if
prior to the Extension Effective Date a Downgrade Event shall have occurred,
the then effective Expiry Date shall not be so extended.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs. If the Primary Liquidity
Provider shall determine that (a) any change after the date hereof in any law,
regulation, rule or directive or in the interpretation thereof by any court or
administrative or governmental authority charged with the administration
thereof or in the compliance by the Primary Liquidity Provider (or its head
office) with any applicable direction, request or requirement (whether or not
having the force of law) of any central bank or competent governmental or
other authority shall either (i) impose, modify or deem applicable any
reserve, special deposit or similar requirement against assets held by, or
deposits in or for the account of, or loans made by, the Primary Liquidity
Provider, or (ii) impose on the Primary Liquidity Provider any other condition
regarding this Agreement or any Advance, or (iii) subject the Primary
Liquidity Provider to any Taxes with respect to amounts payable or paid or
change the basis of taxation of any amounts payable to the Primary Liquidity
Provider (other than Excluded Taxes) and (b) the result of any event referred
to in the preceding clauses (i), (ii) or (iii) shall be to increase the cost
to the Primary Liquidity Provider of issuing or maintaining its commitment or
funding or maintaining Advances (which increase in cost shall be determined by
the Primary Liquidity Provider's reasonable allocations of the aggregate of
such cost increases resulting from such event), then, upon demand by the
Primary Liquidity Provider), the Borrower shall pay, or cause to be paid, to
the Primary Liquidity Provider, from time to time as specified by the Primary
Liquidity Provider, additional amounts which shall be sufficient to compensate
the Primary Liquidity Provider for such increased cost; provided that if such
demand for payment is made more than 180 days after a Responsible Officer of
the Primary Liquidity Provider obtains actual knowledge of any event referred
to in clause (i), (ii) or (iii) above period, the Borrower shall be obligated
to pay such additional amounts only with respect to such increased cost
actually incurred or effected on or after the 180th day prior to the date of
such demand. A certificate as to such increased cost incurred by the Primary
Liquidity Provider as a result of any event mentioned in clauses (i), (ii) or
(iii) above, prepared in reasonable detail and submitted by the Primary
Liquidity Provider to the Borrower, shall be conclusive evidence of the amount
owed under this Section, absent manifest error.
The Primary Liquidity Provider agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Lending Office if making such change would
avoid the need for, or reduce the amount of, any amount payable under this
Section 3.01 that may thereafter accrue and would not, in the reasonable
judgment of the Primary Liquidity Provider, be otherwise disadvantageous to
the Primary Liquidity Provider.
Section 3.02. Capital Adequacy. If the Primary Liquidity
Provider shall determine that the adoption of any applicable law, rule or
regulation regarding capital adequacy,
13
or any change therein, 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 Primary Liquidity Provider (or its head office) with any request or
directive regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank or comparable agency, in each case after
the date hereof, has the effect of reducing the rate of return on the Primary
Liquidity Provider's capital as a consequence of issuing or maintaining its
commitment hereunder or its funding or maintaining Advances to a level below
that which the Primary Liquidity Provider could have achieved but for such
adoption, change or compliance (taking into consideration the Primary
Liquidity Provider's policies with respect to capital adequacy) by an amount
deemed by the Primary Liquidity Provider to be material, then, upon demand by
the Primary Liquidity Provider, the Borrower shall pay to the Primary
Liquidity Provider, from time to time as specified by the Primary Liquidity
Provider, additional amounts which shall be sufficient to compensate the
Primary Liquidity Provider for such reduction in respect of issuing or
maintaining its commitment hereunder or its funding or maintaining Advances. A
certificate as to any such additional amount describing the event which has
the effect of reducing the rate of return on the Primary Liquidity Provider's
capital, prepared in reasonable detail and submitted by the Primary Liquidity
Provider to the Borrower, shall be conclusive evidence of the amount owed
under this Section, absent manifest error.
The Primary Liquidity Provider agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Lending Office if making such change would
avoid the need for, or reduce the amount of, any amount payable under this
Section 3.02 that may thereafter accrue and would not, in the reasonable
judgment of the Primary Liquidity Provider, be otherwise disadvantageous to
the Primary Liquidity Provider.
Section 3.03. Payments Free of Deductions. (a) All payments
made by the Borrower under this Agreement and the Fee Letter shall be made
free and clear of, and without reduction for or on account of, any present or
future stamp or other taxes, levies, imposts, duties, charges, fees,
deductions, withholdings, restrictions or conditions of any nature whatsoever
now or hereafter imposed, levied, collected, withheld or assessed, excluding
Excluded Taxes (such non-excluded taxes being referred to herein,
collectively, as "Non-Excluded Taxes" and, individually, as a "Non-Excluded
Tax"). If any Non-Excluded Taxes are required to be withheld from any amounts
payable to the Primary Liquidity Provider under this Agreement, the amounts so
payable to the Primary Liquidity Provider shall be increased to the extent
necessary to yield to the Primary Liquidity Provider (after payment of all
Non-Excluded Taxes and taxes imposed on the receipt of such increase) interest
or any other such amounts payable under this Agreement or any amounts payable
under the Fee Letter, as the case may be at the rates or in the amounts
specified in this Agreement or the Fee Letter, as the case may be. The Primary
Liquidity Provider agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if making such change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of the Primary Liquidity
Provider, be otherwise disadvantageous to the Primary Liquidity Provider. On
or prior to the Closing Date, the Primary Liquidity Provider agrees to provide
to the Borrower (i) two copies of a properly completed United States Internal
Revenue Service Form W-8BEN or Form W-8ECI, as
14
appropriate, or other applicable form, certificate or document prescribed by
the Internal Revenue Service certifying, in each case, the Primary Liquidity
Provider's entitlement to a complete exemption from United States federal
withholding tax in respect to any and all payments to be made hereunder, and
(ii) agree to provide the Borrower a new Form W-8BEN or Form W-8ECI, 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-8ECI or Form W-8BEN that the Primary Liquidity Provider is
exempt from or entitled to a reduced rate of United States federal withholding
tax on payments under this Agreement.
(b) All payments (including, without limitation, Advances) made
by the Primary 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 Primary 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 payment required under clause (ii) hereof)
and make such reports or returns in connection therewith at the time or times
and in the manner prescribed by applicable law, and (ii) pay to the Borrower
an additional amount which (after deduction of all such Taxes) will be
sufficient to yield to the Borrower the full amount which would have been
received by it had no such withholding or deduction been made. Within 30 days
after the date of each payment hereunder, the Primary 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 Primary Liquidity Provider such form or forms
and such other evidence of the eligibility of the Borrower for such exemption
or reduction as the Primary 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 Primary Liquidity Provider under this Agreement so as
to cause the same to be received by the Primary 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
Primary Liquidity Provider in immediately available funds, by wire transfer to
Westdeutsche Landesbank Girozentrale, New York Branch, Account No.
000-0-000000, Reference: GSF Transportation Northwest EETC 2002-1.
Section 3.05. Computations. All computations of interest based
on the Base Rate shall be made on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the LIBOR Rate
shall be made on the basis of a year of 360 days, in each case for the actual
number of days (including the first day but excluding the last day) occurring
in the period for which such interest is payable.
15
Section 3.06. Payment on Non-Business Days. Whenever any
payment to be made hereunder shall be stated to be due on a day other than a
Business Day, such payment shall be made on the next succeeding Business Day
and no additional interest shall be due as a result (and if so made, shall be
deemed to have been made when due). If any payment in respect of interest on
an Advance is so deferred to the next succeeding Business Day, such deferral
shall not delay the commencement of the next Interest Period for such Advance
(if such Advance is a LIBOR Advance) or reduce the number of days for which
interest will be payable on such Advance on the next interest payment date for
such Advance.
Section 3.07. Interest. (a) Subject to Section 2.09, the
Borrower shall pay, or shall cause to be paid, without duplication, interest
on (i) the unpaid principal amount of each Advance from and including the date
of such Advance (or, in the case of an Applied Provider Advance, from and
including the date on which the amount thereof was withdrawn from the Class
G-2 Primary Cash Collateral Account to pay interest on the Class G-2
Certificates) to but excluding the date such principal amount shall be paid in
full (or, in the case of an Applied Provider Advance, the date on which the
Class G-2 Primary Cash Collateral Account is fully replenished in respect of
such Advance) and (ii) any other amount due hereunder (whether fees,
commissions, expenses or other amounts or, to the extent permitted by law,
installments of interest on Advances or any such other amount) which is not
paid when due (whether at stated maturity, by acceleration or otherwise) from
and including the due date thereof to but excluding the date such amount is
paid in full, in each such case, at a fluctuating interest rate per annum for
each day equal to the Applicable Liquidity Rate (as defined below) for such
Advance or such other amount as in effect for such day, but in no event at a
rate per annum greater than the maximum rate permitted by applicable law;
provided, however, that, if at any time the otherwise applicable interest rate
as set forth in this Section 3.07 shall exceed the maximum rate permitted by
applicable law, then any subsequent reduction in such interest rate will not
reduce the rate of interest payable pursuant to this Section 3.07 below the
maximum rate permitted by applicable law until the total amount of interest
accrued equals the amount of interest that would have accrued if such
otherwise applicable interest rate as set forth in this Section 3.07 had at
all times been in effect.
(b) Each Advance will be either a Base Rate Advance or a LIBOR
Advance as provided in this Section. Each such Advance will be a Base Rate
Advance for the period from the date of its borrowing to (but excluding) the
third Business Day following the Primary Liquidity Provider's receipt of the
Notice of Borrowing for such Advance. Thereafter, such Advance shall be a
LIBOR Advance; provided that (i) an Applied Provider Advance shall always be a
LIBOR Advance unless the Borrower elects otherwise and (ii) the Borrower (at
the direction of the Controlling Party, so long as the Primary 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 Primary 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 City time) on the first Business Day immediately following the Borrower's
receipt of the applicable Termination Notice, that such Final Advance not be
converted from a Base Rate Advance to a LIBOR Advance).
16
(c) Each LIBOR Advance shall bear interest during each Interest
Period at a rate per annum equal to the LIBOR Rate for such Interest Period
plus the Applicable Margin for such LIBOR Advance, payable in arrears on the
last day of such Interest Period and, in the event of the payment of principal
of such LIBOR Advance on a day other than such last day, on the date of such
payment (to the extent of interest accrued on the amount of principal repaid).
(d) Each Base Rate Advance shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin for such Base Rate
Advance, payable in arrears on each Regular Distribution Date and, in the
event of the payment of principal of such Base Rate Advance on a day other
than a Regular Distribution Date, on the date of such payment (to the extent
of interest accrued on the amount of principal repaid).
(e) [RESERVED]
(f) Each amount not paid when due hereunder (whether fees,
commissions, expenses or other amounts or, to the extent permitted by
applicable law, installments of interest on Advances but excluding Advances)
shall bear interest at a rate per annum equal to the Base Rate plus 2.5% until
paid.
(g) Each change in the Base Rate shall become effective
immediately. The rates of interest specified in this Section 3.07 with respect
to any Advance or other amount shall be referred to as the "Applicable
Liquidity Rate".
Section 3.08. Replacement of Borrower. From time to time and
subject to the successor Borrower's meeting the eligibility requirements set
forth in Section 6.9 of the Intercreditor Agreement applicable to the
Subordination Agent, upon the effective date and time specified in a written
and completed Notice of Replacement Subordination Agent in substantially the
form of Annex VI attached hereto (a "Notice of Replacement Subordination
Agent") delivered to the Primary Liquidity Provider by the then Borrower, the
successor Borrower designated therein shall be substituted as the Borrower for
all purposes hereunder.
Section 3.09. Funding Loss Indemnification. The Borrower shall
pay to the Primary Liquidity Provider, upon the request of the Primary
Liquidity Provider, such amount or amounts as shall be sufficient (in the
reasonable opinion of the Primary Liquidity Provider) to compensate it for any
loss, cost, or expense incurred as a result of the liquidation or redeployment
of deposits or other funds acquired by the Primary Liquidity Provider to fund
or maintain any LIBOR Advance (but excluding loss of anticipated profits)
incurred as a result of:
(1) Any repayment of a LIBOR Advance on a date other than
the last day of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance
on the date for borrowing specified in the relevant notice
under Section 2.02.
Section 3.10. Illegality. Notwithstanding any other provision
in this Agreement, if any change in any applicable law, rule or regulation, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation
or administration thereof, or compliance by the Primary Liquidity
17
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 Primary Liquidity Provider
(or its Lending Office) to maintain or fund its LIBOR Advances, then upon
notice to the Borrower by the Primary Liquidity Provider, the outstanding
principal amount of the LIBOR Advances shall be converted to Base Rate
Advances (a) immediately upon demand of the Primary Liquidity Provider, if
such change or compliance with such request, in the judgment of the Primary
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 Primary Liquidity Provider shall have received on or
before the Closing Date each of the following, and in the case of
each document delivered pursuant to paragraphs (i), (ii) and (iii),
each in form and substance satisfactory to the Primary Liquidity
Provider:
(i) This Agreement and the Fee Letter duly executed on
behalf of the Borrower and acknowledged by Northwest;
(ii) The Intercreditor Agreement duly executed on behalf
of each of the parties thereto;
(iii) Fully executed copies of each of the Operative
Agreements executed and delivered on or before the Closing Date
(other than this Agreement, the Fee Letter and the
Intercreditor Agreement);
(iv) A copy of the Prospectus Supplement and specimen
copies of the Class G-2 Certificates;
(v) An executed copy of each document, instrument,
certificate and opinion delivered on or before the Closing Date
pursuant to the Class G-2 Trust Agreement, the Intercreditor
Agreement and the other Operative Agreements (in the case of
each such opinion, other than the opinion of counsel for the
Underwriters, either addressed to the Primary Liquidity
Provider or accompanied by a letter from the counsel rendering
such opinion to the effect that the Primary Liquidity Provider
is entitled to rely on such opinion as of its date as if it
were addressed to the Primary 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
18
or, to the extent reasonably requested by the Primary Liquidity
Provider, reasonably advisable, in order to establish, perfect,
protect and preserve the right, title and interest, remedies,
powers, privileges, liens and security interests of, or for the
benefit of, the Trustees, the Borrower and the Primary
Liquidity Provider created by the Operative Agreements executed
and delivered on or prior to the Closing Date;
(vii) A letter from Northwest Airlines Corporation,
pursuant to which (i) Northwest Airlines Corporation agrees to
provide copies of quarterly financial statements and audited
annual financial statements to the Primary Liquidity Provider,
and such other information as the Primary Liquidity Provider
shall reasonably request with respect to the transactions
contemplated by the Operative Agreements, in each case, only to
the extent that Northwest Airlines Corporation is obligated to
provide such information pursuant to Section 16 of the Leases
(related to Leased Aircraft) or the corresponding section of
the Indentures (related to Owned Aircraft) to the parties
thereto, and (ii) Northwest Airlines Corporation agrees to
allow the Primary Liquidity Provider to inspect its books and
records regarding such transactions, and to discuss such
transactions with officers and employees of Northwest Airlines
Corporation; and
(viii) Such other documents, instruments, opinions and
approvals pertaining to the transactions contemplated hereby or
by the other Operative Agreements as the Primary Liquidity
Provider shall have reasonably requested.
(b) The following statement shall be true on and as of the
Effective Date: no event has occurred and is continuing, or would
result from the entering into of this Agreement or the making of any
Advance, which constitutes a Liquidity Event of Default.
(c) The Primary 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 Primary 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 Facilities shall have been satisfied or waived, and all
conditions precedent to the purchase of the Class G-1, Class G-2,
Class C-1 and Class C-2 Certificates by the Underwriters under the
Underwriting Agreement shall have been satisfied (unless any of such
conditions precedent shall have been waived by the Underwriters).
(e) The Borrower shall have received a certificate, dated the
date hereof, signed by a duly authorized representative of the
Primary Liquidity Provider, certifying that all conditions precedent
to the effectiveness of Section 2.01 have been satisfied or waived.
19
Section 4.02. Conditions Precedent to Borrowing. The obligation
of the Primary 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 Primary Liquidity Provider shall have
any Maximum Commitment hereunder or the Borrower shall have any obligation to
pay any amount to the Primary Liquidity Provider hereunder, the Borrower will,
unless the Primary Liquidity Provider shall otherwise consent in writing:
(a) Performance of This and Other Agreements. Punctually pay or
cause to be paid all amounts payable by it under this Agreement and
the other Operative Agreements and observe and perform in all
material respects the conditions, covenants and requirements
applicable to it contained in this Agreement and the other Operative
Agreements.
(b) Reporting Requirements. Furnish to the Primary 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
Primary Liquidity Provider; and permit the Primary 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 Primary
Liquidity Provider with reasonable promptness, such Operative
Agreements entered into after the date hereof as from time to time
may be reasonably requested by the Primary Liquidity Provider.
Section 5.02. Negative Covenants of the Borrower. So long as
any Advance shall remain unpaid or the Primary Liquidity Provider shall have
any Maximum Commitment hereunder or the Borrower shall have any obligation to
pay any amount to the Primary Liquidity Provider hereunder, the Borrower will
not appoint or permit or suffer to be appointed any successor Borrower without
the prior written consent of the Primary Liquidity Provider, which consent
shall not be unreasonably withheld or delayed.
20
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 Primary Liquidity Provider may, in its discretion,
deliver to the Borrower a Termination Notice, the effect of which shall be to
cause (i) this Agreement to expire 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 Primary Liquidity Provider to promptly make, a
Final Advance in accordance with Section 2.02(d) hereof and Section 3.6(i) of
the Intercreditor Agreement, (iii) all other outstanding Advances to be
automatically converted into Final Advances for purposes of determining the
Applicable Liquidity Rate for interest payable thereon, and (iv) subject to
Sections 2.07 and 2.09 hereof, all Advances (including, without limitation,
any Provider Advance and Applied Provider Advance), any accrued interest
thereon and any other amounts outstanding hereunder to become immediately due
and payable to the Primary 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 Primary Liquidity Provider, and, in the case of an amendment
or of a waiver by the Borrower, the Borrower, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
Section 7.02. Notices, Etc. Except as otherwise expressly
provided herein, all notices and other communications provided for hereunder
shall be in writing (including telecopier and mailed or delivered or sent by
telecopier):
Borrower: STATE STREET BANK AND TRUST COMPANY
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
Primary Liquidity Provider: WESTDEUTSCHE LANDESBANK GIROZENTRALE
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Loan Administration - Suzy Kong
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
21
with a copy of any Notice of Borrowing to:
WESTDEUTSCHE LANDESBANK GIROZENTRALE
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Transportation Finance -
Xxxxxxxx Xxxxxx
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, (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 Primary Liquidity Provider pursuant to the provisions
of Articles II and III hereof shall not be effective until received by the
Primary Liquidity Provider. A copy of all notices delivered hereunder to
either party shall in addition be delivered to each of the parties to the
Participation Agreements at their respective addresses set forth therein.
Section 7.03. No Waiver; Remedies. No failure on the part of
the Primary 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 Primary
Liquidity Provider such additional assignments, agreements, powers and
instruments as the Primary 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 Primary
Liquidity Provider its rights, powers and remedies hereunder and under the
other Operative Agreements.
Section 7.05. Indemnification; Survival of Certain Provisions.
The Primary Liquidity Provider shall be indemnified hereunder to the extent
and in the manner described in Section 7(c) of the Participation Agreements.
In addition, the Borrower agrees to indemnify, protect, defend and hold
harmless the Primary 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 Sections 3.01, 3.02 or 7.07 hereof or
in the Fee Letter applicable to this Agreement (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 Fee Letter applicable to this
Agreement, the Intercreditor Agreement or any Financing Agreement; provided,
however, that the Borrower shall not be required to indemnify, protect, defend
and hold harmless any Liquidity Indemnitee in respect of
22
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 Fee Letter applicable to this Agreement, the
Intercreditor Agreement or any other Operative Agreement to which it is a
party. The indemnities contained in Section 7(c) of the Participation
Agreements, and the provisions of Sections 3.01, 3.02, 3.03, 3.09, 7.05 and
7.07 hereof, shall survive the termination of this Agreement.
Section 7.06. Liability of the Primary Liquidity Provider. (a)
Neither the Primary Liquidity Provider nor any of its officers, employees,
directors or Affiliates shall be liable or responsible for: (i) the use which
may be made of the Advances or any acts or omissions of the Borrower or any
beneficiary or transferee in connection therewith; (ii) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even
if such documents should prove to be in any or all respects invalid,
insufficient, fraudulent or forged; or (iii) the making of Advances by the
Primary 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 Primary Liquidity Provider, and
the Primary 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
Primary Liquidity Provider's willful misconduct or negligence in determining
whether documents presented hereunder comply with the terms hereof, or (B) any
breach by the Primary Liquidity Provider of any of the terms of this
Agreement, including, but not limited to, the Primary Liquidity Provider's
failure to make lawful payment hereunder after the delivery to it by the
Borrower of a Notice of Borrowing strictly complying with the terms and
conditions hereof.
(b) Neither the Primary Liquidity Provider nor any of its
officers, employees, directors or affiliates shall be liable or responsible in
any respect for (i) any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with this Agreement or any Notice of Borrowing
delivered hereunder, or (ii) any action, inaction or omission which may be
taken by it in good faith, absent willful misconduct or negligence (in which
event the extent of the Primary Liquidity Provider's potential liability to
the Borrower shall be limited as set forth in the immediately preceding
paragraph), in connection with this Agreement or any Notice of Borrowing.
Section 7.07. Costs, Expenses and 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 Primary Liquidity Provider shall make demand, all
reasonable out-of-pocket costs and expenses (including, without limitation,
the reasonable fees and expenses of outside counsel for the Primary Liquidity
Provider) of the Primary Liquidity Provider in connection with the
preparation, negotiation, execution, delivery, filing and recording of this
Agreement, any other Operative Agreement and any other documents which may be
delivered in connection with this Agreement and (B) on demand, all reasonable
costs and expenses (including reasonable counsel fees and expenses) of the
Primary Liquidity Provider in connection with (i) the enforcement of this
Agreement or any other Operative Agreement, (ii) the modification or amendment
of, or supplement to, this Agreement or any other Operative Agreement or such
other documents which
23
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 Primary 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-2 Primary 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 Primary 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 Primary Liquidity Provider and their respective successors and assigns,
except that neither the Primary Liquidity Provider (except as otherwise
provided in this Section 7.08) nor (except as contemplated by Section 3.08)
the Borrower shall have the right to assign its rights or obligations
hereunder or any interest herein without the prior written consent of the
other party, subject to the requirements of Section 7.08(b). The Primary
Liquidity Provider may grant participations herein or in any of its rights
hereunder (including, without limitation, funded participations and
participations in rights to receive interest payments hereunder) and under the
other Operative Agreements to such Persons as the Primary Liquidity Provider
may in its sole discretion select (but excluding Northwest and any of its
Affiliates), subject to the requirements of Section 7.08(b). No such granting
of participations by the Primary Liquidity Provider, however, will relieve the
Primary Liquidity Provider of its obligations hereunder. In connection with
any participation or any proposed participation, the Primary 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
Primary Liquidity Provider pursuant to this Agreement. The Borrower
acknowledges and agrees that the Primary Liquidity Provider's source of funds
may derive in part from its participants. Accordingly, references in this
Agreement and the other Operative Agreements to determinations, reserve and
capital adequacy requirements, increased costs, reduced receipts, additional
amounts due pursuant to Section 3.03 and the like as they pertain to the
Primary Liquidity Provider shall be deemed also to include those of each of
its participants (subject, in each case, to the maximum amount that would have
been incurred by or attributable to the Primary Liquidity Provider directly if
the Primary Liquidity Provider, rather than the participant, had held the
interest participated).
(b) If, pursuant to subsection (a) above, the Primary Liquidity
Provider sells any participation in this Agreement to any bank or other entity
(each, a "Transferee"), then, concurrently with the effectiveness of such
participation, the Transferee shall (i) represent to the Primary Liquidity
Provider (for the benefit of the Primary Liquidity Provider and the Borrower)
either (A) that it is incorporated under the laws of the United States or a
state thereof or (B) that under applicable law and treaties, no taxes will be
required to be withheld with respect to any payments to be made to such
Transferee in respect of this Agreement, (ii) furnish to the Primary 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-8BEN or Form W-8ECI, as appropriate, or other
applicable form, certificate or document prescribed by the Internal Revenue
24
Service certifying, in each case, such Transferee's entitlement to a complete
exemption from United States federal withholding tax in respect to any and all
payments to be made hereunder, and (iii) agree (for the benefit of the Primary
Liquidity Provider and the Borrower) to provide the Primary Liquidity Provider
and the Borrower a new Form W-8BEN or Form W-8ECI, 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-8ECI
or Form W-8BEN that such Transferee is entitled to a complete exemption from
United States federal withholding tax on payments under this Agreement. Unless
the Borrower has received forms or other documents reasonably satisfactory to
it (and required by applicable law) indicating that payments hereunder are not
subject to United States federal withholding tax, the Borrower will withhold
taxes as required by law from such payments at the applicable statutory rate.
(c) Notwithstanding the other provisions of this Section 7.08,
the Primary 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 Primary 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 Primary 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.
Section 7.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial;
Waiver of Immunity. (a) Each of the parties hereto hereby irrevocably and
unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement or any other
Operative Agreement, or for recognition and enforcement of any
judgment in respect hereof or thereof, to the nonexclusive
general jurisdiction of the courts of the State of New York,
the courts of the United States of America for the Southern
District of New York, and the appellate courts from any
thereof;
(ii) consents that any such action or proceeding may be
brought in such courts, and waives any objection that it may
now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or
25
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
and mail), postage prepaid, to each party hereto at its address
set forth in Section 7.02 hereof, or at such other address of
which the Primary 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 PRIMARY 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 Primary Liquidity Provider each warrant and
represent that it has reviewed this waiver with its legal counsel, and that it
knowingly and voluntarily waives its jury trial rights following consultation
with such legal counsel. THIS WAIVER IS IRREVOCABLE, AND CANNOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
(c) The Primary 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 Sates 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 counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 7.13. Entirety. This Agreement, the Intercreditor
Agreement and the other Operative Agreements to which the Primary Liquidity
Provider is a party constitute the entire agreement of the parties hereto with
respect to the subject matter hereof and supersedes all prior understandings
and agreements of such parties.
Section 7.14. 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.
26
Section 7.15. PRIMARY LIQUIDITY PROVIDER'S OBLIGATION TO MAKE
ADVANCES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF
THE PRIMARY 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.
27
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first set forth above.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as
Subordination Agent, as agent
and trustee for the Class G-2
Trustee, as Borrower
By: /s/ Xxxxxxx X. Ring
-------------------------------
Name: Xxxxxxx X. Ring
Title: Assistant Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH, as
Primary Liquidity Provider
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
28
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first set forth above.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as
Subordination Agent, as agent
and trustee for the Class G-2
Trustee, as Borrower
By:
-------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH, as
Primary Liquidity Provider
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Associate Director
28
Annex I to
Revolving Credit Agreement
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "Borrower"), hereby certifies to Westdeutsche Landesbank
Girozentrale, New York Branch (the "Primary Liquidity Provider"), with
reference to the Revolving Credit Agreement (2002-1G-2) dated as of August 5,
2002, between the Borrower and the Primary 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 Primary Liquidity
Provider to be used, subject to clause (3)(v) below, for the
payment of the interest on the Class G-2 Certificates which was
payable on ____________, ____ (the "Distribution Date") in
accordance with the terms and provisions of the Class G-2 Trust
Agreement and the Class G-2 Certificates, which Advance is
requested to be made on ____________, ____. The Interest
Advance should be transferred to [name of bank/wire
instructions/ABA number] in favor of account number [____],
reference [____].
(3) The amount of the Interest Advance requested hereby
(i) is $_________________, to be applied in respect of the
payment of the interest which was due and payable on the Class
G-2 Certificates on the Distribution Date, (ii) does not
include any amount with respect to the payment of principal of,
or Break Amount (if any), Prepayment Premium (if any) or any
other premium (if any) on, the Class G-1 Certificates, the
Class G-2 Certificates, the Class C-1 Certificates or the Class
C-1 Certificates, or interest on the Class G-1 Certificates,
Class C-1 Certificates, the Class C-2 Certificates or the Class
D Certificates, if any, (iii) was computed in accordance with
the provisions of the Certificates, the Class G-2 Trust
Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), (iv) does not
exceed the Maximum Available Commitment on the date hereof, (v)
does not include any amount of interest which was due and
payable on the Class G-2 Certificates on such Distribution Date
but which remains unpaid due to the failure of the Depositary
to pay any amount of accrued interest on the Deposits on such
Distribution Date and (vi) has not been and is not the subject
of a prior or contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will apply the same
in accordance with the terms of Section 3.6(b) of the
Intercreditor Agreement, (b) no portion of such
I-1
amount shall be applied by the Borrower for any other purpose
and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, the making of the Interest Advance as requested by this
Notice of Borrowing shall automatically reduce, subject to reinstatement in
accordance with the terms of the Liquidity Agreement, the Maximum Available
Commitment by an amount equal to the amount of the Interest Advance requested
to be made hereby as set forth in clause (i) of paragraph (3) of this Notice
of Borrowing and such reduction shall automatically result in corresponding
reductions in the amounts available to be borrowed pursuant to a subsequent
Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as
Subordination Agent, as Borrower
By:_______________________________
Name:
Title:
I-2
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Interest Advance Notice of Borrowing]
I-3
Annex II to
Revolving Credit Agreement
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
subordination agent (the "Borrower"), hereby certifies to Westdeutsche
Landesbank Girozentrale, New York Branch (the "Primary Liquidity Provider"),
with reference to the Revolving Credit Agreement (2002-1G-2) dated as of
August 5, 2002, between the Borrower and the Primary 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 Primary
Liquidity Provider to be used for the funding of the Class G-2
Primary Cash Collateral Account in accordance with Section
3.6(d) of the Intercreditor Agreement, which Advance is
requested to be made on __________, ____. The Non-Extension
Advance should be transferred to [name of bank/wire
instructions/ABA number] in favor of account number [___],
reference [___].
(3) The amount of the Non-Extension Advance requested
hereby (i) is $_________________, which equals the Maximum
Available Commitment on the date hereof and is to be applied in
respect of the funding of the Class G-2 Primary 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 Break Amount (if any),
Prepayment Premium (if any) or any other premium (if any) on,
the Class G-2 Certificates, or principal of, or interest or
Break Amount (if any), Prepayment Premium (if any) or any other
premium (if any) on, the Class G-1 Certificates, the Class C-1
Certificates, the Class C-2 Certificates or the Class D
Certificates, if any, (iii) was computed in accordance with the
provisions of the Class G-2 Certificates, the Class G-2 Trust
Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), and (iv) has not
been and is not the subject of a prior or contemporaneous
Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such
amount in the Class G-2 Primary 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.
II-1
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 Primary Liquidity
Provider to make further Advances under the Liquidity Agreement; and
(B) following the making by the Primary Liquidity Provider of the
Non-Extension Advance requested by this Notice of Borrowing, the
Borrower shall not be entitled to request any further Advances under
the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as
Subordination Agent, as
Borrower
By:_______________________________
Name:
Title:
II-2
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Non-Extension Advance Notice of Borrowing]
II-3
Annex III to
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
subordination agent (the "Borrower"), hereby certifies to Westdeutsche
Landesbank Girozentrale, New York Branch (the "Primary Liquidity Provider"),
with reference to the Revolving Credit Agreement (2002-1G-2) dated as of
August 5, 2002, between the Borrower and the Primary 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 Primary
Liquidity Provider to be used for the funding of the Class G-2
Primary 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
Primary Liquidity Provider issued by either Rating Agency below
the Threshold Rating, which Advance is requested to be made on
__________, ____. The Downgrade Advance should be transferred
to [name of bank/wire instructions/ABA number] in favor of
account number [___], reference [____].
(3) The amount of the Downgrade Advance requested hereby
(i) is $_______________.__, which equals the Maximum Available
Commitment on the date hereof and is to be applied in respect
of the funding of the Class G-2 Primary Cash Collateral Account
in accordance with Section 3.6(c) of the Intercreditor
Agreement, (ii) does not include any amount with respect to the
payment of the principal of, or Break Amount (if any), or
Prepayment Premium (if any) or any premium on, the Class G-2
Certificates, or principal of or interest or Break Amount (if
any), or Prepayment Premium (if any) or any premium on, the
Class G-1 Certificates, the Class C-1 Certificates, the Class
C-2 Certificates, or the Class D Certificates, (iii) was
computed in accordance with the provisions of the Class G-2
Certificates, the Class G-2 Trust Agreement and the
Intercreditor Agreement (a copy of which computation is
attached hereto as Schedule I), and (iv) has not been and is
not the subject of a prior or contemporaneous Notice of
Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such
amount in the Class G-2 Primary 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.
III-1
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 Primary Liquidity Provider to make further Advances under
the Liquidity Agreement; and (B) following the making by the Primary Liquidity
Provider of the Downgrade Advance requested by this Notice of Borrowing, the
Borrower shall not be entitled to request any further Advances under the
Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as
Subordination Agent, as
Borrower
By:_______________________________
Name:
Title:
III-2
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Downgrade Advance Notice of Borrowing]
III-3
Annex IV to
Revolving Credit Agreement
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "Borrower"), hereby certifies to Westdeutsche Landesbank
Girozentrale, New York Branch (the "Primary Liquidity Provider"), with
reference to the Revolving Credit Agreement (2002-1G-2) dated as of August 5,
2002, between the Borrower and the Primary 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 Primary Liquidity
Provider to be used for the funding of the Class G-2 Primary
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 Primary Liquidity
Provider with respect to the Liquidity Agreement, which Advance
is requested to be made on ____________, ____. The Final
Advance should be transferred to [name of bank/wire
instructions/ABA number] in favor of account number [___],
reference [____].
(3) The amount of the Final Advance requested hereby (i)
is $_________________.__, which equals the Maximum Available
Commitment on the date hereof and is to be applied in respect
of the funding of the Class G-2 Primary 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 Break Amount (if any), Prepayment
Premium (if any) or any other premium (if any) on, the Class
G-2 Certificates, or principal of, or interest or Break Amount
(if any), Prepayment Premium (if any) or any other premium (if
any) on, the Class G-1 Certificates, the Class C-1
Certificates, the Class C-2 Certificates, or the Class D
Certificates, (iii) was computed in accordance with the
provisions of the Class G-2 Certificates, the Class G-2 Trust
Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), and (iv) has not
been and is not the subject of a prior or contemporaneous
Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such
amount in the Class G-2 Primary 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
(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 Primary Liquidity Provider to make further Advances under
the Liquidity Agreement; and (B) following the making by the Primary Liquidity
Provider of the Final Advance requested by this Notice of Borrowing, the
Borrower shall not be entitled to request any further Advances under the
Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST
COMPANY, 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
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Final Advance Notice of Borrowing]
IV-3
Annex V to
Revolving Credit Agreement
NOTICE OF TERMINATION
[Date]
State Street Bank and Trust Company,
as Subordination Agent, as Borrower
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, XX 00000
Attention: Corporate Trust Administration
Revolving Credit Agreement (2002-1G-2) dated as of August 5, 2002,
between STATE STREET BANK AND TRUST COMPANY, as Subordination Agent,
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.
V-1
THIS NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR UNDER
THE LIQUIDITY AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY
AGREEMENT WILL TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU
RECEIVE THIS NOTICE.
Very truly yours,
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH, as
Primary Liquidity Provider
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
cc: State Street Bank and Trust Company of
Connecticut, National Association,
as Class G-2 Trustee
V-2
Annex VI to
Revolving Credit Agreement
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement (2002-1G-2) dated as of August 5, 2002,
between State Street Bank and Trust Company, as Subordination Agent,
as Borrower, and Westdeutsche Landesbank Girozentrale (the
"Liquidity Agreement")
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby
irrevocably transfers to:
------------------------------
[Name of Transferee]
------------------------------
[Address of Transferee]
all rights and obligations of the undersigned as Borrower under the Liquidity
Agreement referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the first
paragraph of the Liquidity Agreement, pursuant to the terms of Section 8.1 of
the Intercreditor Agreement.
By this transfer, all rights of the undersigned as Borrower
under the Liquidity Agreement are transferred to the transferee and the
transferee shall hereafter have the sole rights and obligations as Borrower
thereunder. The undersigned shall pay any costs and expenses of such transfer,
including, but not limited to, transfer taxes or governmental charges.
VI-1
We ask that this transfer be effective as of _______________,
____.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as
Subordination Agent, as
Borrower
By:_______________________________
Name:
Title:
VI-2
