IRREVOCABLE REVOLVING CREDIT AGREEMENT
CLASS B CERTIFICATES
Dated as of August 13, 1998
between
THE FIRST NATIONAL BANK OF MARYLAND
not in its individual capacity but solely as Subordination Agent,
as agent and trustee for the
Midway Airlines 1998-1B Pass Through Trust,
as Borrower
and
ABN AMRO BANK N.V., CHICAGO BRANCH
as Liquidity Provider
Relating to
Midway Airlines 1998-1B Pass Through Trust
8.14% Midway Airlines Pass Through Certificates,
Series 1998-1B
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms.................................... 1
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.1 The Advances............................................. 7
Section 2.2 Making the Advances...................................... 8
Section 2.3 Fees..................................................... 9
Section 2.4 Reduction or Termination of the Commitment............... 10
Section 2.5 Repayments of Interest Advances or the Final Advance..... 10
Section 2.6 Repayments of Downgrade Advances and
Non-Extension Advances................................... 11
Section 2.7 Payments to the Liquidity Provider Under the
Intercreditor Agreement.................................. 12
Section 2.8 Book Entries............................................. 12
Section 2.9 Payments from Available Funds Only....................... 12
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.1 Increased Costs.......................................... 13
Section 3.2 Capital Adequacy......................................... 14
Section 3.3 Payments Free of Deductions.............................. 15
Section 3.4 Payments................................................. 16
Section 3.5 Computations............................................. 16
Section 3.6 Payment on Non-Business Days............................. 16
Section 3.7 Interest................................................. 16
Section 3.8 Replacement of Borrower.................................. 17
Section 3.9 Funding Loss Indemnification............................. 18
Section 3.10 Illegality............................................... 18
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1 Conditions Precedent to Effectiveness of Section 2.1..... 18
Section 4.2 Conditions Precedent to Borrowing........................ 20
ARTICLE V
COVENANTS
Section 5.1 Affirmative Covenants of the Borrower.................... 20
Section 5.2 Negative Covenants of the Borrower....................... 21
ARTICLE VI
FINAL ADVANCE
Section 6.1 Final Advance............................................ 21
ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendments, Etc.......................................... 22
Section 7.2 Notices, Etc............................................. 22
Section 7.3 No Waiver; Remedies...................................... 23
Section 7.4 Further Assurances....................................... 23
Section 7.5 Indemnification; Survival of Certain Provisions.......... 23
Section 7.6 Liability of the Liquidity Provider...................... 23
Section 7.7 Costs, Expenses and Taxes................................ 24
Section 7.8 Binding Effect; Participation............................ 25
Section 7.9 Severability............................................. 26
Section 7.10 GOVERNING LAW............................................ 26
Section 7.11 Submission to Jurisdiction; Waiver of Jury Trial;
Waiver of Immunity....................................... 26
Section 7.12 Execution in Counterparts................................ 27
Section 7.13 Entirety................................................. 27
Section 7.14 Headings; Section References............................. 27
Section 7.16 LIQUIDITY PROVIDER'S OBLIGATION TO
MAKE ADVANCES............................................ 28
ANNEX I - Interest Advance Notice of Borrowing
ANNEX II - Downgrade Advance Notice of Borrowing
ANNEX III - Notice of Replacement Borrower
ANNEX IV - Notice of Automatic Reduction of Commitment
ANNEX V - Non-Extension Advance Notice of Borrowing
IRREVOCABLE REVOLVING CREDIT AGREEMENT
CLASS B CERTIFICATES
IRREVOCABLE REVOLVING CREDIT AGREEMENT, CLASS B CERTIFICATES, dated
as of August 13, 1998 between THE FIRST NATIONAL BANK OF MARYLAND, a national
bank association, not in its individual capacity but solely as Subordination
Agent under the Intercreditor Agreement (each as defined below), as agent and
trustee for the Class B Trust (as defined below) (the "Borrower"), and ABN AMRO
BANK N.V., acting through its Chicago Branch (the "Liquidity Provider").
W I T N E S S E T H :
WHEREAS, pursuant to the Class B Trust Agreement (such term and all
other capitalized terms used in these recitals having the meanings set forth or
referred to in Section 1.1), the Class B Trust is issuing the Class B
Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a
portion of the interest on the Class B Certificates in accordance with their
terms, has requested the Liquidity Provider to enter into this Agreement,
providing in part for the Borrower to request in specified circumstances that
Advances be made hereunder.
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms. (a) Definitions. As used in this
Agreement and unless otherwise expressly indicated, or unless the context
clearly requires otherwise, the following capitalized terms shall have the
following respective meanings for all purposes of this Agreement:
"Advance" means an Interest Advance, a Final Advance, a Downgrade
Advance, a Non-Extension Advance or an Unpaid Advance, as the case may be.
"Applicable Liquidity Rate" has the meaning assigned to such term in
3.7(g).
"Applicable Margin" means (x) with respect to any Downgrade Advance
(other than an Applied Downgrade Advance) or Non-Extension Advance (other
than an Applied Non-Extension Advance), .60% per annum and (y) with
respect
to any other Advance (including without limitation, an Applied Downgrade
Advance and an Applied Non-Extension Advance) 3.00% per annum.
"Applied Downgrade Advance" has the meaning assigned to such term in
Section 2.6(a).
"Applied Non-Extension Advance" has the meaning assigned to such
term in Section 2.6(a).
"Assignment and Assumption Agreement" means the Assignment and
Assumption to be entered into between the Borrower and the trustee of the
Successor Trust, substantially in the form of Exhibit E to the Pass
Through Trust Agreement 1998-1B-O, dated as of the date hereof, relating
to the Class B Trust.
"Available Commitment" means, at any time of determination, an
amount equal to (i) the Commitment at such time less (ii) subject to the
proviso contained in the third sentence of Section 2.2(a), the aggregate
amount of each Advance outstanding at such time; provided that, following
a Downgrade Advance, a Non-Extension Advance or a Final Advance, the
Available Commitment shall be zero.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to (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 Liquidity Provider from three Federal funds brokers of
recognized standing selected by it, plus (b) one-quarter of one percent
(1/4 of 1%).
"Base Rate Advance" means an Advance that bears interest at a rate
based upon the Base Rate.
"Borrower" has the meaning assigned to such term in the recital of
parties to this Agreement.
"Borrowing" means the making of Advances requested by delivery of a
Notice of Borrowing or pursuant to Section 6.1.
"Business Day" means any day other than a Saturday or Sunday or a
day on which commercial banks are required or authorized to close in
Charlotte, North Carolina, Chicago, Illinois, New York, New York or, so
long as any Class B Certificate is outstanding, the city and state in
which the Class B Trustee
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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.
"Commitment" means, initially, $3,274,474, as the same may be
reduced from time to time in accordance with Section 2.4(a).
"Downgrade Advance" means an Advance made pursuant to Section
2.2(b).
"Effective Date" has the meaning specified in Section 4.1. The
delivery of the certificate of the Liquidity Provider contemplated by
Section 4.1(e) shall be conclusive evidence that the Effective Date has
occurred.
"Excluded Taxes" means (i) taxes imposed on the overall net income
of the Liquidity Provider or of its Lending Office by the jurisdiction
where such Liquidity Provider's principal office or such Lending Office is
located, 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 Liquidity Provider
(including a transferee of an Advance) or Lending Office, after the date
on which such successor 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 Liquidity Provider failing to deliver to the Borrower any certificate
or document (which certificate or document in the good faith judgment of
the Liquidity Provider it is legally entitled to provide) which is
reasonably requested by the Borrower to establish that payments under this
Agreement are exempt from (or entitled to a reduced rate of) withholding
Tax.
"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 12, 1999, initially, or any date to which
the Expiry Date is extended pursuant to Section 2.10.
"Final Advance" means an Advance made pursuant to Sections 2.2(c).
"Intercreditor Agreement" means the Intercreditor Agreement dated
the date hereof, among the Trustees, the Liquidity Provider, the liquidity
provider
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under each Liquidity Facility (other than this Agreement) and the
Subordination Agent, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"Interest Advance" means an Advance made pursuant to Section 2.2(a).
"Interest Period" means, with respect to any LIBOR Advance, each of
the following periods:
(i) the period beginning on the third Business Day following
either (x) the Liquidity Provider's receipt of the Notice of
Borrowing for such LIBOR Advance (or, in the case of an
Non-Applied Downgrade Advance, the period beginning on the
Expiry Date) or (y) the withdrawal of funds from the Class B
Cash Collateral Account for the purpose of paying interest on
the Class B Certificates as contemplated by Section 2.6(a)
hereof and, in either case, ending on the next Regular
Distribution Date (or ending, in the case of an Interest
Period applicable to any Non-Applied Downgrade Advance or
Non-Applied Non-Extension Advance, on the numerically
corresponding day in the sixth calendar month after the first
day of the applicable Interest Period and/or on the next
Regular Distribution Date, as Midway may select by providing
notice thereof to the Borrower and the Liquidity Provider no
later than three Business Days prior to the commencement of
such Interest Period, provided that if Midway shall not
provide such a notice at least three Business Days prior to
the commencement of such Interest Period, then Midway shall be
deemed to have selected and Interest Period 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 (or ending, in the case of an
Interest Period applicable to any Non-Applied Downgrade
Advance or Non- Applied Non-Extension Advance, on the
numerically corresponding day in the sixth calendar month
after the first day of the applicable Interest Period and/or
on the next Regular Distribution Date, as Midway may select by
providing notice thereof to the Borrower and the Liquidity
Provider no later than three Business Days prior to the
commencement of such Interest Period, provided that if Midway
shall not provide such a notice at least three Business Days
prior to the commencement of such Interest Period, then Midway
shall be deemed to have selected an Interest Period ending on
the next Regular Distribution Date;
provided, however, that (I) if a Non-Applied Advance which is a LIBOR
Advance becomes an Applied Downgrade Advance or Applied Non-Extension
Advance, as
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the case may be, the Interest Period then applicable to such Non-Applied
Advance shall be applicable to such Applied Downgrade Advance or Applied
Non-Extension Advance, as the case may be, 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 Liquidity Provider's receipt of the Notice of Borrowing for
such Final Advance (in the case of clause (x) above) or the Regular
Distribution Date following such conversion (in the case of clause (y)
above).
"Lending Office" means the lending office of the Liquidity Provider,
presently located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or
such other lending office as the Liquidity Provider from time to time
shall notify the Borrower as its lending office hereunder; provided that
the Liquidity Provider shall not change its Lending Office to a Lending
Office outside the United States of America except in accordance with
Section 3.1, 3.2 or 3.3 hereof.
"LIBOR Advance" means an Advance bearing interest at a rate based
upon the LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period, the average
(rounded upward, if necessary, to the next higher 1/16 of 1%) of the rates
per annum at which deposits in dollars are offered to major banks in the
London interbank market at approximately 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period in an amount
approximately equal to the principal amount of the Advance to which such
Interest Period is to apply and for a period of time comparable to such
Interest Period.
"Liquidity Event of Default" means the occurrence of either the
following: (a) 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 or (b) a Midway Bankruptcy Event.
"Liquidity Indemnitee" means (i) the Liquidity Provider, (ii) each
affiliate of the Liquidity Provider, (iii) the respective directors,
officers, employees, agents and servants of the Liquidity Provider and its
affiliates, and (iv) the successors and permitted assigns of the persons
described in clauses (i) through (iii), inclusive.
"Liquidity Provider" has the meaning assigned to such term in the
Preamble to this Agreement.
"Non-Applied Advance" means any Non-Applied Non-Extension Advance or
Non-Applied Downgrade Advance.
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"Non-Applied Downgrade Advance" means any Downgrade Advance, other
than an Applied Downgrade Advance.
"Non-Applied Non-Extension Advance" means any Non-Extension Advance,
other than an Applied Non-Extension Advance.
"Non-Excluded Tax" has the meaning specified in Section 3.3.
"Non-Extension Advance" means an Advance made pursuant to Section
2.2(d).
"Notice of Borrowing" has the meaning specified in Section 2.2(e).
"Notice of Replacement Borrower" has the meaning specified in
Section 3.8.
"Offering Memorandum" means the Offering Memorandum dated August 6,
1998 of Midway relating to the Certificates, as such Offering Memorandum
may be amended or supplemented.
"Participant" has the meaning assigned to such term in Section
7.8(b).
"Performing Note Deficiency" means any time that less than 65% of
the then aggregate outstanding principal amount of all Equipment Notes are
Performing Equipment Notes.
"Related Indemnitee" means, with respect to any Liquidity
Indemnitee, its director, officer, employee, agent, affiliate or employer.
"Replenishment Amount" has the meaning assigned to such term in
Section 2.6(b).
"Required Amount" means, for any day, the sum of the aggregate
amount of interest, calculated at the rate per annum equal to the Stated
Interest Rate for the Class B Certificates (taking into account the
possible increase in the Stated Rate as a result of a failure of a
Registration Event failing to occur), that would be payable on the Class B
Certificates on each of the three successive semi-annual Regular
Distribution Dates immediately following such day or, if such day is a
Regular Distribution Date, on such day and the succeeding two semi-annual
Regular Distribution Dates, in each case calculated on the basis of the
Pool Balance of the Class B Certificates on such day and without regard to
expected future payments of principal on the Class B Certificates.
"Successor Trust" means Midway Airlines Pass Through Trust
1998-1B-S.
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"Termination Date" means the earliest to occur of the following: (i)
the Expiry Date; (ii) the date on which the Borrower delivers to the
Liquidity Provider a certificate, signed by a Responsible Officer of the
Borrower, certifying that all of the Class B Certificates have been paid
in full (or provision has been made for such payment in accordance with
the Intercreditor Agreement and the Trust Agreements) or are otherwise no
longer entitled to the benefits of this Agreement; (iii) the date on which
the Borrower delivers to the Liquidity Provider a certificate, signed by a
Responsible Officer of the Borrower, certifying that a Replacement
Liquidity Facility has been substituted for this Agreement in full
pursuant to Section 3.6(e) of the Intercreditor Agreement; (iv) the date
on which the Liquidity Provider makes the Final Advance; and (v) the date
on which no Advance is or may (including by reason of reinstatement as
herein provided) become available for a Borrowing hereunder.
"Unpaid Advance" has the meaning assigned to such term in Section
2.5.
(b) Terms Defined in the Intercreditor Agreement. For all purposes
of this Agreement, the following terms shall have the respective meanings
assigned to such terms in the Intercreditor Agreement:
"ABN AMRO Fee Letter", "Certificates", "Class B Certificate", "Class B
Certificateholder", "Class B Cash Collateral Account", "Class B Trust",
"Class B Trust Agreement", "Class B Trustee", "Class A Certificates",
"Class C Certificates", "Class D Certificates", "Closing Date",
"Controlling Party", "Corporate Trust Office", "Deposits", "Distribution
Date", "Equipment Notes", "Indenture", "Initial Purchaser", "Investment
Earnings", "Liquidity Facility", "Midway", "Midway Bankruptcy Event",
"Xxxxx'x", "Note Purchase Agreement", "Operative Agreements",
"Participation Agreements", "Performing Equipment Note", "Person", "Pool
Balance", "Purchase Agreement", "Rating Agencies", "Registration Event",
"Regular Distribution Dates", "Replacement Liquidity Facility",
"Responsible Officer", "Scheduled Payment", "Special Payment", "Standard &
Poor's", "Stated Interest Rate", "Subordination Agent", "Taxes",
"Threshold Rating", "Transfer", "Triggering Event", "Trust Agreement",
"Trustee" and "Written Notice".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.1 The Advances. The Liquidity Provider hereby irrevocably
agrees, on the terms and conditions hereinafter set forth, to make Advances to
the Borrower from time to time on any Business Day during the period from the
Effective Date until 12:00 Noon (New York City time) on the Expiry Date (unless
the obligations of the Liquidity Provider shall be earlier terminated in
accordance with the terms of Section 2.4(b)) in an aggregate amount at any time
outstanding not to exceed the Commitment.
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Section 2.2 Making the Advances. (a) Interest Advances shall be made
in one or more Borrowings by delivery to the Liquidity Provider of one or more
written and completed Notices of Borrowing in substantially the form of Annex I
attached hereto, signed by a Responsible Officer of the Borrower, in an amount
not exceeding the Available Commitment at such time and shall be used solely for
the payment when due of interest on the Class B Certificates at the Stated
Interest Rate therefor in accordance with Section 3.6(a) of the Intercreditor
Agreement. Each Interest Advance made hereunder shall automatically reduce the
Available Commitment and the amount available to be borrowed hereunder by
subsequent Advances by the amount of such Interest Advance (subject to
reinstatement as provided in the next sentence). Upon repayment to the Liquidity
Provider in full of the amount of any Interest Advance made pursuant to this
Section 2.2(a), together with accrued interest thereon (as provided herein), the
Available Commitment shall be reinstated by the amount of such repaid Interest
Advance; provided, however, that the Available Commitment shall not be so
reinstated at any time after (i) the acceleration of all the outstanding
Equipment Notes or (ii)(A) a Triggering Event shall have occurred and (B) there
exists a Performing Note Deficiency.
(b) A Downgrade Advance shall be made in a single Borrowing upon a
downgrading of the rating of the Liquidity Provider resulting in the Liquidity
Provider's ratings not meeting the Threshold Rating (as provided for in Section
3.6(c) of the Intercreditor Agreement) unless a Replacement Liquidity Facility
shall have been previously delivered to the Borrower in accordance with said
Section 3.6(c), by delivery to the Liquidity Provider of a written and completed
Notice of Borrowing in substantially the form of Annex II attached hereto,
signed by a Responsible Officer of the Borrower, in an amount equal to the
Available Commitment at such time, and shall be used to fund the Class B Cash
Collateral Account in accordance with said Section 3.6(c) and Section 3.6(f) of
the Intercreditor Agreement.
(c) A Final Advance may be made by the Liquidity Provider without
the necessity for a Notice of Borrowing at the option of the Liquidity Provider
on the occurrence of an event described in Section 6.1 in an amount equal to the
Available Commitment at such time, and shall be used to fund the Class B Cash
Collateral Account (in accordance with Section 3.6(f) of the Intercreditor
Agreement).
(d) A Non-Extension Advance shall be made in a single Borrowing if
this Agreement is not extended in accordance with Section 3.6(d) of the
Intercreditor Agreement (unless a Replacement Liquidity Facility to replace this
Agreement shall have been delivered to the Borrower in accordance with said
Section 3.6(d) within the time period specified in such Section) by delivery to
the Liquidity Provider of a written and completed Notice of Borrowing in
substantially the form of Annex V attached hereto, signed by a Responsible
Officer of the Borrower, in an amount equal to the Available Commitment at such
time, and shall be used to fund the Class B Cash Collateral Account in
accordance with said Section 3.6(d) and Section 3.6(f) of the Intercreditor
Agreement.
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(e) Each Borrowing (other than the making of a Final Advance) shall
be made on notice in writing (a "Notice of Borrowing") in substantially the form
required by Section 2.2(a), 2.2(b) or 2.2(d), as the case may be, given by the
Borrower to the Liquidity Provider not later than 1 p.m. (New York City time) on
the second Business Day prior to the day of the proposed Borrowing; provided
that, a Borrowing in respect of an Interest Advance pursuant to Section 2.2(a)
shall be made on such notice to the Liquidity Provider given not later than 1
p.m. (New York City time) on the Business Day of such Borrowing. Upon
satisfaction of the conditions precedent set forth in Section 4.2 with respect
to a requested Borrowing, the Liquidity Provider shall, before 12:00 Noon (New
York City time) on the date of such Borrowing (or, in the case of a Borrowing in
respect of an Interest Advance pursuant to Section 2.2(a), before 3 p.m. (New
York Cite time) on the date of such Borrowing) or on such later Business Day
specified by the Borrower in such Notice of Borrowing, make available to the
Borrower, in U.S. dollars and in immediately available funds, the amount of such
Borrowing to be paid to the Borrower in accordance with its payment
instructions. If a Notice of Borrowing is delivered by the Borrower in respect
of any Borrowing after 1 p.m. (New York City time) on a Business Day, the
Liquidity Provider shall, before 12:00 Noon (New York City time) on the third
Business Day following the day of receipt of such Notice of Borrowing (or, in
the case of a Borrowing in respect of an Interest Advance pursuant to Section
2.2(a), on the next Business Day following receipt of such notice) or on such
later Business Day specified by the Borrower in such Notice of Borrowing, make
available to the Borrower, in U.S. dollars and in immediately available funds,
the amount of such Borrowing to be paid to the Borrower in accordance with its
payment instructions. Payments of proceeds of a Borrowing shall be made by wire
transfer of immediately available funds to the Borrower in accordance with such
wire transfer instructions as the Borrower shall furnish from time to time to
the Liquidity Provider for such purpose. Each Notice of Borrowing shall be
irrevocable and binding on the Borrower.
(f) Upon the making of any Advance requested pursuant to a Notice of
Borrowing, in accordance with the Borrower's payment instructions, the Liquidity
Provider shall be fully discharged of its obligation hereunder with respect to
such Notice of Borrowing, and the Liquidity Provider shall not thereafter be
obligated to make any further Advances hereunder in respect of such Notice of
Borrowing to the Borrower or to any other person (including the holder of any
Class B Certificate or the Class B Trustee) who makes to the Class B Trustee or
the Borrower a demand for payment with respect to any Class B Certificate. By
paying to the Borrower proceeds of Advances requested by the Borrower in
accordance with the provisions of this Agreement, the Liquidity Provider makes
no representation as to, and assumes no responsibility for, the correctness or
sufficiency for any purpose of the amount of the Advances so made and requested.
Section 2.3 Fees. (a) Subject to the provisions of Section 2.9, the
Borrower agrees to pay to the Liquidity Provider an advisory fee in the amount
set forth in the ABN AMRO Fee Letter. Such fee shall be payable on the Effective
Date. Nothing contained in this Section 2.3(a) shall require the Borrower to pay
any amount
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under this Section 2.3(a) other than to the extent the Borrower shall have funds
available therefor.
(b) Subject to the provisions of Section 2.9, the Borrower shall
pay, or shall cause to be paid, to the Liquidity Provider, a fee per annum, as
set forth in the ABN AMRO Fee Letter on the average daily Available Commitment
from the Effective Date to the earlier of the date on which a Downgrade Advance
or Non-Extension Advance is made and the date on which the Commitment
terminates. Such fee shall be payable in arrears on each Regular Distribution
Date. Nothing contained in this Section 2.3(b) shall require the Borrower to pay
any amount under this Section 2.3(b) other than to the extent the Borrower shall
have funds available therefor.
Section 2.4 Reduction or Termination of the Commitment. (a)
Automatic Reductions. Promptly following each date on which the Required Amount
is reduced as a result of a reduction in the Pool Balance of the Class B
Certificates or otherwise, the Commitment shall automatically be reduced to an
amount equal to such reduced Required Amount (as calculated by the Borrower).
The Borrower shall give notice of any such automatic reduction of the Commitment
(substantially in the form of Annex IV hereto) to the Liquidity Provider (with a
copy to Midway) within two Business Days thereof. The failure by the Borrower to
furnish any such notice shall not affect such automatic reduction of the
Commitment.
(b) Termination. Upon the making of any Downgrade Advance,
Non-Extension Advance or Final Advance hereunder or the occurrence of the
Termination Date, the obligation of the Liquidity Provider to make further
Advances hereunder shall automatically and irrevocably terminate, and the
Borrower shall not be entitled to request any further Borrowing hereunder.
Section 2.5 Repayments of Interest Advances or the Final Advance.
Subject to Sections 2.6, 2.7 and 2.9, the Borrower hereby agrees to pay, or to
cause to be paid, to the Liquidity Provider on each date on which the Liquidity
Provider shall make an Interest Advance or the Final Advance, an amount equal to
(a) the amount of such Interest Advance or the Final Advance (any such Interest
Advance or the Final Advance, until repaid, is referred to herein as an "Unpaid
Advance"), plus (b) interest on the amount of each such Unpaid Advance as
provided in Section 3.7. Subject to Sections 2.6, 2.7 and 2.9, unless otherwise
waived by the Liquidity Provider, the Borrower shall be obligated, without
notice of an Advance or demand for repayment from the Liquidity Provider (which
notice and demand are hereby waived by the Borrower), to repay the Liquidity
Provider for all Interest Advances and Final Advances on the same day as made
and all Applied Downgrade Advances on the same day they become Applied Downgrade
Advances in accordance with Section 2.6 hereof. The Borrower and the Liquidity
Provider agree that the repayment in full of each Interest Advance and the Final
Advance on the date such Interest Advance or the Final Advance is made and each
Applied Downgrade Advance on the date it becomes an Applied Downgrade Advance is
intended to be a contemporaneous exchange for new value given to the Borrower by
the Liquidity Provider.
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Section 2.6 Repayments of Downgrade Advances and Non-Extension
Advances. (a) Amounts advanced hereunder in respect of a Downgrade Advance or a
Non-Extension Advance shall be deposited in the Class B Cash Collateral Account,
and invested and withdrawn from the Class B Cash Collateral Account, as set
forth in Sections 3.6(c), (d) and (f) of the Intercreditor Agreement. Subject to
Section 2.9, the Borrower agrees to pay to the Liquidity Provider, on each
Regular Distribution Date, commencing on the first Regular Distribution Date
after the making of a Downgrade Advance or a Non-Extension Advance, interest on
the principal amount of any such Downgrade Advance or a Non-Extension Advance as
provided in Section 3.7; provided, however, that amounts in respect of a (i) any
distribution to the Liquidity Provider of Investment Earnings pursuant to
Section 3.6(f) of the Intercreditor Agreement shall constitute a payment of
interest due on such Downgrade Advance or Non-Extension Advance in the amount of
such Investment Earnings and (ii) amounts in respect of a Downgrade Advance or
Non-Extension Advance withdrawn from the Class B Cash Account for the purpose of
paying interest on the Class B Pass Through Certificates in accordance with
Section 3.6(f) of the Intercreditor Agreement (the amount of any such withdrawal
being an "Applied Downgrade Advance" or "Applied Non-Extension Advance,"
respectively), shall 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 Downgrade
Advance or Non-Extension Advance, the Liquidity Provider elects by notice to the
Borrower to convert such Advance into a Final Advance, such Downgrade Advance or
Non-Extension Advance, as the case may be, shall thereafter be treated as a
Final Advance under this Agreement for purposes of determining the Applicable
Liquidity Rate for interest payable thereon. Immediately upon the withdrawal of
any amounts from the Class B Cash Collateral Account on account of a reduction
in the Required Amount, the Borrower shall repay the Downgrade Advance or
Non-Extension Advance in a principal amount equal to the amount of such
reduction, plus interest on the principal amount repaid as provided in Section
3.7.
(b) At any time when an Applied Downgrade Advance or Applied
Non-Extension Advance (or any portion thereof) is outstanding, upon the deposit
in the Class B Cash Collateral Account of any amount pursuant to clause "third"
of Section 2.4(b)(i), clause "third" of Section 3.2 or clause "fourth" of
Section 3.3 of the Intercreditor Agreement (any such amount being a
"Replenishment Amount") for the purpose of replenishing the balance thereof up
to the Required Amount at such time, (i) the aggregate outstanding principal
amount of all Applied Downgrade Advances or Applied Non-Extension Advances, as
the case may be, shall be automatically reduced by the amount of such
Replenishment Amount and (ii) the principal amount of the outstanding Downgrade
Advance or Non-Extension Advance, as the case may be, shall be automatically
increased by the amount of such Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity Facility in
replacement of this Agreement in accordance with Section 3.6(e) of the
Intercreditor Agreement, and prior to the effectiveness of any Replacement
Liquidity Facility, the Borrower agrees that all amounts owing to the Liquidity
Provider shall be repaid in
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full, whether from Advances made by the Replacement Liquidity Provider, from
amounts remaining on deposit in the Class B Cash Collateral Account after giving
effect to any application of funds therefrom to any payment of interest on the
Class B Certificates on the date of such replacement, or otherwise.
Section 2.7 Payments to the Liquidity Provider Under the
Intercreditor Agreement. In order to provide for payment or repayment to the
Liquidity Provider of any amounts hereunder, the Intercreditor Agreement
provides that amounts available and referred to in Articles II and III of the
Intercreditor Agreement, to the extent payable to the Liquidity Provider
pursuant to the terms of the Intercreditor Agreement (including, without
limitation, Section 3.6(f) of the Intercreditor Agreement), shall be paid to the
Liquidity Provider in accordance with the terms thereof. Amounts so paid to the
Liquidity Provider shall be applied by the Liquidity Provider in the order of
priority required by the applicable provisions of Articles II and III of the
Intercreditor Agreement.
Section 2.8 Book Entries. The Liquidity Provider shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower resulting from Advances made from time to time and
the amounts of principal and interest payable hereunder and paid from time to
time in respect thereof; provided, however, that the failure by the Liquidity
Provider to maintain such account or accounts shall not affect the obligations
of the Borrower in respect of Advances.
Section 2.9 Payments from Available Funds Only. All payments to be
made by the Borrower under this Agreement, including but not limited to payments
pursuant to Sections 2.3, 2.5, 2.6, 3.1, 3.2, 3.9, 7.5 and 7.7 hereof, shall be
made only from amounts received by it that constitute Scheduled Payments or
Special Payments or payments under Sections 6.01 and 7.01 of the Participation
Agreements and only to the extent that the Borrower shall have sufficient income
or proceeds therefrom to enable the Borrower to make payments in accordance with
the terms hereof after giving effect to the priority of payments provisions set
forth in the Intercreditor Agreement. The Liquidity Provider agrees that it will
look solely to such amounts to the extent available for distribution to it as
provided in the Intercreditor Agreement and this Agreement and that the
Borrower, in its individual capacity, is not personally liable to it for any
amounts payable or liability incurred under this Agreement except as expressly
provided in Article VI of the Intercreditor Agreement. Amounts on deposit in the
Class B Cash Collateral Account shall be available to make payments only to the
extent and for the purposes expressly contemplated in Section 3.6(f) of the
Intercreditor Agreement.
Section 2.10 Extension of the Expiry Date; Non-Extension Advance. No
earlier than the 60th day and no later than the 40th day prior to the then
effective Expiry Date (unless such Expiry Date is on or after the date that is
15 days after the Final Maturity Date for the Class B Certificates), the
Borrower shall request that the Liquidity Provider extend the Expiry Date for a
period of 364 days after the then effective Expiry Date(unless the obligations
of the Liquidity Provider are earlier
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terminated in accordance with the terms hereof). The Liquidity Provider shall
advise the Borrower, no earlier than 40 days and no later then 25 days prior to
the then effective Expiry Date, whether, in its sole discretion, it agrees to so
extend the Expiry Date. If the Liquidity Provider advises the Borrower on or
before the 25th day prior to the Expiry Date then in effect that such Expiry
Date shall not be so extended, or fails to irrevocably and unconditionally
advise the Borrower on or before the 25th day prior to the Expiry Date then in
effect that such Expiry Date shall be so extended (and, in each case, if the
Liquidity Provider shall not have been replaced in accordance with Section
3.6(e) of the Intercreditor Agreement), the Borrower shall be entitled on and
after such 25th day (but prior to the then effective Expiry Date) to request a
Non-Extension Advance in accordance with Section 2.2(d) hereof and Section
3.6(d) of the Intercreditor Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.1 Increased Costs. If the Liquidity Provider shall
reasonably determine that (a) any change, after the Effective Date, in any law
or regulation or in the interpretation thereof by any court or administrative or
governmental authority charged with the administration thereof or in the
compliance by the Liquidity Provider (or its head office) with any applicable
direction, request or requirement (whether or not having the force of law) of
any central bank or competent governmental or other authority shall either (i)
impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets held by, or deposits in or for the account of, or
loans or loan commitments made by, the Liquidity Provider or (ii) impose on the
Liquidity Provider any other condition regarding this Agreement or any Advance
and (b) the result of any event referred to in the preceding clause (i) or (ii)
shall be to increase the cost to the Liquidity Provider of issuing or
maintaining its Commitment or funding or maintaining Advances (which increase in
cost shall be determined by the Liquidity Provider's reasonable allocations of
the aggregate of such cost increases resulting from such event among similarly
effected credit and funding facilities), or to reduce the amount of any sum
received or receivable by the Liquidity Provider under this Agreement with
respect thereto, then, upon demand by the Liquidity Provider (such demand to be
made as soon as practicable, but not later than 30 days after a Responsible
Officer of the Liquidity Provider obtains or reasonably should have obtained
knowledge of any event referred to in clause (i) or (ii) above), and subject to
Section 2.9, the Borrower shall pay, or cause to be paid, to the Liquidity
Provider, from time to time as specified by the Liquidity Provider, additional
amounts which shall be sufficient to compensate the Liquidity Provider for such
increased cost or reduction; provided that if such demand for payment is made
after such 30-day period, the Borrower shall be obligated to pay such additional
amounts only with respect to such increased cost or reduction actually incurred
or effected on or after the 30th day prior to the date of such demand. A
Certificate as to such increased cost or reduction (which shall set forth in
reasonable detail the basis for such increased cost on reduction) incurred by
the Liquidity Provider as a result of any event mentioned in clause (i) or
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(ii) above, prepared in reasonable detail and submitted by the Liquidity
Provider to the Borrower, shall be conclusive, absent manifest error, as to the
amount thereof.
The Liquidity Provider agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if making such change would avoid the need
for, or reduce the amount of, any amount payable under this Section 3.1 that may
thereafter accrue and would not, in the reasonable judgment of the Liquidity
Provider, be otherwise disadvantageous in any material respect to the Liquidity
Provider. The Liquidity Provider agrees that if it shall make a demand for
payment of additional amounts under this Section the Borrower shall have the
right to obtain a Replacement Liquidity Facility in replacement of this
Agreement in accordance with Section 3.6(e) of the Intercreditor Agreement
provided that such replacement would eliminate the obligation of the Borrower to
pay such additional amounts.
Section 3.2 Capital Adequacy. If the Liquidity Provider shall
reasonably determine that the adoption, after the Effective Date, of any
applicable law, rule or regulation regarding capital adequacy, or any change
therein, or any change, after the Effective Date, in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by the Liquidity Provider (or its 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, has the effect of reducing the
rate of return on the Liquidity Provider's capital as a consequence of issuing
or maintaining its commitment hereunder or its funding or maintaining Advances
to a level below that which the Liquidity Provider could have achieved but for
such adoption, change or compliance (taking into consideration the Liquidity
Provider's policies with respect to capital adequacy), then, upon demand by the
Liquidity Provider (such demand to be made as soon as is practicable, but not
later than 30 days after a Responsible Officer of the Liquidity Provider obtains
or should reasonably have obtained knowledge of any event referred to above in
this Section 3.2), and subject to Section 2.9, the Borrower shall pay to the
Liquidity Provider, from time to time as specified by the Liquidity Provider,
additional amounts (which amounts shall be determined by the Liquidity
Provider's reasonable allocations of the aggregate of such amounts resulting
from such event among similarly effected credit and funding facilities) which
shall be sufficient to compensate the Liquidity Provider for such reduction in
respect of issuing or maintaining its commitment hereunder or its funding or
maintaining Advances; provided that, if such demand for payment is made after
such 30 day period, the Borrower shall be obligated to pay such amounts only
with respect to such reduction actually effected on or after the 30th day prior
to the date of such demand. A certificate as to such additional amount
describing the event which has the effect of reducing the rate of return on the
Liquidity Provider's capital, prepared in reasonable detail and submitted by the
Liquidity Provider to the Borrower, shall be conclusive, absent manifest error,
as to the amount thereof.
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The Liquidity Provider agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if making such change would avoid the need
for, or reduce the amount of, any amount payable under this Section 3.2 that may
thereafter accrue and would not, in the reasonable judgment of the Liquidity
Provider, be otherwise disadvantageous in any material respect to the Liquidity
Provider. The Liquidity Provider agrees that if it shall make a demand for
payment of additional amounts under this Section the Borrower shall have the
right to obtain a Replacement Liquidity Facility in replacement of this
Agreement in accordance with Section 3.6(e) of the Intercreditor Agreement
provided that such replacement would eliminate the obligation of the Borrower to
pay such additional amounts.
Section 3.3 Payments Free of Deductions. (a) All payments made by
the Borrower under this Agreement shall be made free and clear of, and without
reduction for or on account of, any 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 "are,
individually, as a "Non-Excluded Tax"). If any Non-Excluded Taxes are required
to be withheld from any amounts payable to the Liquidity Provider under this
Agreement, the amounts so payable to the Liquidity Provider shall be increased
to the extent necessary to yield to the Liquidity Provider (after payment of all
Non-Excluded Taxes) interest or any other such amounts payable under this
Agreement at the rates or in the amounts specified in this Agreement. The
Liquidity Provider agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if making such change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of the Liquidity Provider, be
otherwise disadvantageous to the Liquidity Provider. From time to time upon the
reasonable request of the Borrower, the Liquidity Provider agrees to provide to
the Borrower two original Internal Revenue Service Forms 1001 or 4224, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that the Liquidity Provider is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to this
Agreement.
(b) All payments (including, without limitation, Advances) made by
the Liquidity Provider under this Agreement shall be made free and clear of, and
without reduction for or on account of, any Taxes. If any Taxes are required to
be withheld or deducted from any amounts payable to the Borrower under this
Agreement, the Liquidity Provider shall (i) within the time prescribed therefor
by applicable law pay to the appropriate governmental or taxing authority the
full amount of any such Taxes (and any additional Taxes in respect of the
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
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withholding or deduction been made. Within 30 days after the date of each
payment hereunder, the Liquidity Provider shall furnish to the Borrower the
original or a certified copy of (or other documentary evidence of) the payment
of the Taxes applicable to such payment.
Section 3.4 Payments. The Borrower shall make or cause to be made
each payment to the Liquidity Provider under this Agreement so as to cause the
same to be received by the Liquidity Provider not later than 1:00 P.M. (New York
City time) on the day when due. The Borrower shall make all such payments in
lawful money of the United States of America, to the Liquidity Provider in
immediately available funds, by wire transfer to ABN AMRO BANK, New York, New
York, ABA No. 020009580, for the account of ABN AMRO BANK, Chicago Branch,
Account No. 650-001-1789-41, Attention: Midway Airlines Corporation.
Section 3.5 Computations. All computations of interest based on the
Base Rate shall be made on the basis of a year of 365 or 366 days, as the case
may be, and all computations of (x) interest based on the LIBOR Rate and (y)
fees payable to the Liquidity Provider shall be made on the basis of a year of
360 days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest is
payable.
Section 3.6 Payment on Non-Business Days. Whenever any payment to be
made hereunder 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 3.7 Interest. (a) The Borrower shall pay, or shall cause to
be paid, interest on (i) the unpaid principal amount of each Advance from and
including the date of such Advance (or, in the case of an Applied Downgrade
Advance or an Applied Non-Extension Advance, from and including the date on
which the amount thereof was withdrawn from the Class B Cash Collateral Account
to pay interest on the Class B Certificates) to but excluding the date such
principal amount shall be paid in full and (ii) any other amount due hereunder
(whether fees, commissions, expenses or other amounts or, to the extent
permitted by law, installments of interest on Advances or any such other amount)
which is not paid when due (whether at stated maturity, by acceleration or
otherwise) from and including the due date thereof to but excluding the date
such amount is paid in full, in each such case, at a fluctuating interest rate
per annum for each day equal to the Applicable Liquidity Rate for such Advance
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 3.7 shall exceed
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the maximum rate permitted by applicable law, then any subsequent reduction in
such interest rate will not reduce the rate of interest payable pursuant to this
Section 3.7 below the maximum rate permitted by applicable law until the total
amount of interest accrued equals the amount of interest that would have accrued
if such otherwise applicable interest rate as set forth in this Section 3.7 had
at all times been in effect. Nothing contained in this Section 3.7 shall require
the Borrower to pay any amount under this Section 3.7 other than to the extent
the Borrower shall have funds available therefor.
(b) Each Advance (other than Non-Applied Advances) will be either a
Base Rate Advance or a LIBOR Advance as provided in this Section. Each such
Advance will be a Base Rate Advance for the period from the date of its
borrowing to (but excluding) the third Business Day following the Liquidity
Provider's receipt of the Notice of Borrowing for such Advance. Thereafter, such
Advance shall be a LIBOR Advance until the last day of its Interest Period
except as provided in Section 3.10.
(c) Each LIBOR Advance shall bear interest during each Interest
Period at a per annum rate equal to the LIBOR Rate for such Interest Period plus
the Applicable Margin for such LIBOR Advance, payable in arrears on the last day
of such Interest Period and, in the event of the payment of principal of such
LIBOR Advance on a day other than such last day, on the date of such payment (to
the extent of interest accrued on the amount of principal repaid).
(d) Each Base Rate Advance shall bear interest at a per annum rate
equal to the Base Rate plus the Applicable Margin for such Base Rate Advance,
payable in arrears on each Regular Distribution Date and, in the event of the
payment of principal of such Base Rate Advance on a day other than a Regular
Distribution Date, on the date of such payment (to the extent of interest
accrued on the amount of principal repaid).
(e) [Intentionally Omitted.]
(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) shall bear interest at the Base Rate.
(g) Each change in the Base Rate shall become effective immediately.
The rates of interest specified in this Section 3.7 with respect to any Advance
or other amount shall be referred to as the "Applicable Liquidity Rate".
Section 3.8 Replacement of Borrower. Subject to Section 5.2(b), from
time to time, upon the effective date and time specified in a written and
completed Notice of Replacement Borrower in substantially the form of Annex III
attached hereto (a "Notice of Replacement Borrower") delivered to the Liquidity
Provider by the then Borrower, the successor Borrower designated therein shall
be substituted for as the Borrower for all purposes hereunder.
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Section 3.9 Funding Loss Indemnification. The Borrower shall pay to
the Liquidity Provider, upon the request of the Liquidity Provider, such amount
or amounts as shall be sufficient (in the reasonable opinion of the Liquidity
Provider) to compensate it for any loss, cost, or expense incurred as a result
of:
(a) Any payment or prepayment of a LIBOR Advance on a date other
than the last day of the Interest Period for such Advance; or
(b) Any failure by the Borrower to borrow or convert, as the case
may be, a LIBOR Advance on the date for borrowing or conversion, as the
case may be, specified in the relevant notice under Section 2.2 or 3.7.
Section 3.10 Illegality. Notwithstanding any other provision in this
Agreement, if any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Liquidity Provider (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for the Liquidity Provider (or its Lending Office) to maintain or
fund its LIBOR Advances, then upon notice to the Borrower by the Liquidity
Provider, the outstanding principal amount of the LIBOR Advances shall be
converted to Base Rate Advances (a) immediately upon demand of the Liquidity
Provider, if such change or compliance with such request, in the judgment of the
Liquidity Provider, requires immediate repayment; or (b) at the expiration of
the last Interest Period to expire before the effective date of any such change
or request. In the event any change of the nature described in the preceding
sentence shall also make it unlawful or impossible for the Liquidity Provider
(or its Lending Office) to maintain or fund its Base Rate Advances, the
Liquidity Provider shall have the right to cause a Replacement Liquidity
Facility to be substituted for this Agreement, subject to (i) the satisfaction
of the conditions precedent to the effectiveness of, and the other provisions
regarding, a Replacement Liquidity Facility set forth in Section 3.6(e) of the
Intercreditor Agreement and (ii) such Replacement Liquidity Facility and
Replacement Liquidity Provider being also acceptable to Midway.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1 Conditions Precedent to Effectiveness of Section 2.1.
Section 2.1 of this Agreement shall become effective on and as of the first date
(the "Effective Date") on which the following conditions precedent have been
satisfied or waived:
(a) The Liquidity Provider shall have received on or before the
Closing Date each of the following, each dated such date (except for those
documents
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delivered pursuant to paragraphs (v) and (vii) of this Section 4.1(a)),
and each in form and substance satisfactory to the Liquidity Provider:
(i) This Agreement duly executed on behalf of the Borrower;
(ii) The Intercreditor Agreement duly executed on behalf of
each of the parties thereto;
(iii) Fully executed copies of each of the Operative
Agreements executed and delivered on or before the Closing Date
(other than this Agreement and the Intercreditor Agreement);
(iv) A copy of the Offering Memorandum and specimen copies of
the Class B Certificates;
(v) Evidence that, on the Effective Date, the Class A
Certificates, the Class B Certificates, the Class C Certificates and
the Class D Certificates will receive long-term credit ratings from
Xxxxx'x of not lower than Baa1, Ba1, Ba3 and B2, respectively, and
from Standard & Poor's of not lower than A-, BBB-, BB- and B,
respectively;
(vi) An executed or certified copy of each document,
instrument, certificate and opinion delivered on or before the
Closing Date pursuant to the Class B Trust Agreement, the
Intercreditor Agreement and the other Operative Agreements;
(vii) Evidence that there shall have been made and shall be in
full force and effect, all filings, recordings and/or registrations,
and there shall have been given or taken any notice or other similar
action as may be reasonably necessary or, to the extent reasonably
requested by the Liquidity Provider, reasonably advisable, in order
to establish, perfect, protect and preserve the right, title and
interest, remedies, powers, privileges, liens and security interests
of, or for the benefit of, the Trustees and the Liquidity Provider
created by the Operative Agreements executed and delivered on or
before the Closing Date;
(viii) A letter from Midway agreeing to provide to the
Liquidity Provider the periodic financial reports referred to in
Section 8.04 of the Trust Agreements; and
(ix) Such other documents, instruments, opinions and approvals
(and, if requested by the Liquidity Provider, certified duplicates
or executed copies thereof) as the Liquidity Provider shall have
reasonably requested.
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(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 Liquidity Provider shall have received payment in full of
all fees and other sums required to be paid to or for the account of the
Liquidity Provider on or prior to the Effective Date.
(d) All conditions precedent to the issuance of the Certificates
under the Trust Agreements shall have been satisfied, all conditions
precedent to the effectiveness of the other Liquidity Facilities shall
have been satisfied, and all conditions precedent to the purchase of the
Certificates by the Initial Purchaser under the Purchase Agreement shall
have been satisfied (except for any of such conditions precedent under the
Purchase Agreement that shall have been waived by the Initial Purchaser).
(e) The Borrower shall have received a certificate, dated the date
hereof, signed by a duly authorized representative of the Liquidity
Provider, certifying that all conditions precedent to the effectiveness of
Section 2.1 have been satisfied or waived (other than this Section
4.1(e)).
Section 4.2 Conditions Precedent to Borrowing. The obligation of the
Liquidity Provider to make an Advance on the occasion of each Borrowing shall be
subject to the conditions precedent that the Effective Date shall have occurred
and, except in the case of a Final Advance, prior to the date of such Borrowing,
the Borrower shall have delivered a Notice of Borrowing which conforms to the
terms and conditions of this Agreement and has been completed as may be required
by the relevant form of the Notice of Borrowing for the type of Advance
requested.
ARTICLE V
COVENANTS
Section 5.1 Affirmative Covenants of the Borrower. So long as any
Advance shall remain unpaid or the Liquidity Provider shall have any Commitment
hereunder or the Borrower shall have any obligation to pay any amount to the
Liquidity Provider hereunder, the Borrower will, unless the Liquidity Provider
shall otherwise consent in writing:
(a) Performance of This and Other Agreements. Punctually pay or
cause to be paid all amounts payable by it under this Agreement and the
other Operative Agreements and observe and perform in all material
respects the conditions, covenants and requirements applicable to it
contained in this Agreement and the other Operative Agreements.
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(b) Reporting Requirements. Furnish to the Liquidity Provider with
reasonable promptness, such information and data with respect to the
transactions contemplated by the Operative Agreements as from time to time
may be reasonably requested by the Liquidity Provider; and permit the
Liquidity Provider, upon reasonable notice, to inspect the Borrower's
books and records with respect to such transactions and to meet with
officers and employees of the Borrower to discuss such transactions.
Section 5.2 Negative Covenants of the Borrower. So long as any
Advance shall remain unpaid or the Liquidity Provider shall have any Commitment
hereunder or the Borrower shall have any obligation to pay any amount to the
Liquidity Provider hereunder, the Borrower will not, without the written consent
of the Liquidity Provider:
(a) Amendments. Modify, amend or supplement, or give any consent to
any modification, amendment or supplement or make any waiver with respect
to, any provision of the Trust Agreements or the Intercreditor Agreement,
except for any supplemental agreement to the Trust Agreements provided for
in Section 9.1 thereof.
(b) Borrower. Appoint or permit or suffer to be appointed any
successor Borrower without the prior written approval of the Liquidity
Provider (which approval shall not be unreasonably withheld).
ARTICLE VI
FINAL ADVANCE
Section 6.1 Final Advance. If (a) both (i) a Triggering Event shall
have occurred and be continuing and (ii) a Performing Note Deficiency exists or
(b) a Liquidity Event of Default shall have occurred and be continuing, the
Liquidity Provider may, in its discretion, make a Final Advance whereupon (i)
the Liquidity Provider shall have no further obligation to make Advances
hereunder, (ii) all other outstanding Advances shall be automatically converted
into Final Advances for purposes of determining the Applicable Liquidity Rate
for interest payable thereon, and (iii) subject to Sections 2.7 and 2.9, all
Advances, any accrued interest thereon and any other amounts outstanding
hereunder shall become immediately due and payable to the Liquidity Provider.
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ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendments, Etc. No amendment or waiver of any provision
of this Agreement, nor consent to any departure by the Borrower therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Liquidity Provider, and, in the case of an amendment, the Borrower, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
Section 7.2 Notices, Etc. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including telecopier and mailed or delivered or sent by telecopier):
Borrower: THE FIRST NATIONAL BANK OF MARYLAND
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Liquidity ABN AMRO BANK N.V.
Provider: Aerospace Department
000 Xxxxx XxXxxxx Xxxxxx, #000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with copy to:
ABN AMRO BANK N.V.
000 Xxxxx XxXxxxx Xxxxxx, #000
Xxxxxxx, XX 00000-0000
Attention: Loan Operations
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,
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and (iii) if given by other means, when delivered at the address specified
above, except that written notices to the Liquidity Provider pursuant to the
provisions of Articles II and III hereof shall not be effective until received
by the Liquidity Provider. A copy of all notices delivered hereunder to either
party shall in addition be delivered to each of the parties to the Participation
Agreements at their respective addresses set forth therein.
Section 7.3 No Waiver; Remedies. No failure on the part of the
Liquidity Provider to exercise, and no delay in exercising, any right under this
Agreement shall operate as a waiver thereof; nor shall any single or partial
exercise of any right under this Agreement preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 7.4 Further Assurances. The Borrower agrees to do, upon
reasonable request, such further acts and things and to execute and deliver to
the Liquidity Provider such additional assignments, agreements, powers and
instruments as the Liquidity Provider may reasonably require or deem advisable
to carry into effect the purposes of this Agreement and the other Operative
Agreements or to better assure and confirm unto the Liquidity Provider its
rights, powers and remedies hereunder and under the other Operative Agreements.
Section 7.5 Indemnification; Survival of Certain Provisions. The
Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Sections 6.01 and 7.01 of the Participation Agreements. In
addition, the Borrower agrees, subject to Section 2.9 hereof, to indemnify,
protect, defend and hold harmless the Liquidity Provider from, against and in
respect of, and shall pay on demand, all Expenses of any kind or nature
whatsoever, whether arising before, on or after the date hereof, that may be
imposed, incurred by or asserted against any Liquidity Indemnitee, in any way
relating to, resulting from, or arising out of or in connection with, this
Agreement, the Intercreditor Agreement, the Note Purchase Agreement or any
Participation Agreement; provided, however, that the Borrower shall not be
required to indemnify, protect, defend and hold harmless any Liquidity
Indemnitee in respect of any Expense of such Liquidity Indemnitee (i) to the
extent such Expense is attributable to the gross negligence or willful
misconduct of such Liquidity Indemnitee or any Related Indemnitee, (ii) that is
ordinary and usual operating overhead expense or (iii) to the extent such
Expense is attributable to the failure by such Liquidity Indemnitee or its
Related Indemnitee to perform or observe any agreement, covenant or condition on
its part to be performed or observed in any Operative Agreement to which it is a
party. The indemnities contained in such Sections 6.01 and 7.01 of the
Participation Agreements and the provisions of Sections 3.1, 3.2, 3.3, 7.5 and
7.7, shall survive the termination of this Agreement.
Section 7.6 Liability of the Liquidity Provider. (a) Neither the
Liquidity Provider nor any of its officers, employees, affiliates or directors
shall be liable or responsible for: (i) the use which may be made of the
Advances or any acts or
-23-
omissions of the Borrower or any beneficiary or transferee in connection
therewith; (ii) the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in any or all
respects invalid, insufficient, fraudulent or forged; or (iii) the making of
Advances by the Liquidity Provider against delivery of a Notice of Borrowing and
other documents which do not comply with the terms hereof; provided, however,
that the Borrower shall have a claim against the Liquidity Provider, and the
Liquidity Provider shall be liable to the Borrower, to the extent of any damages
suffered by the Borrower which were the result of (A) the Liquidity Provider's
willful misconduct or negligence in determining whether documents presented
hereunder comply with the terms hereof, or (B) any breach by the Liquidity
Provider of any of the terms of this Agreement, including, but not limited to,
the Liquidity Provider's failure to make lawful payment hereunder after the
delivery to it by the Borrower of a Notice of Borrowing strictly complying with
the terms and conditions hereof.
(b) Neither the Liquidity Provider nor any of its officers,
employees,directors or affiliates shall be liable or responsible in any respect
for (i) any error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in connection with this
Agreement or any Notice of Borrowing delivered hereunder, or (ii) any action,
inaction or omission which may be taken by it in good faith, absent willful
misconduct or negligence (in which event the extent of the Liquidity Provider's
potential liability to the Borrower shall be limited as set forth in the
immediately preceding paragraph), in connection with this Agreement or any
Notice of Borrowing.
Section 7.7 Costs, Expenses and Taxes. The Borrower agrees, subject
to Section 2.9 hereof, to pay, or cause to be paid (A) on the Effective Date and
on such later date or dates on which the Liquidity Provider shall make demand,
all reasonable out-of-pocket costs and expenses of the Liquidity Provider in
connection with the preparation, negotiation, execution, delivery, filing and
recording of this Agreement, any other Operative Agreement and any other
documents which may be delivered in connection with this Agreement, including,
without limitation, the reasonable fees and expenses of outside counsel for the
Liquidity Provider and (B) on demand, all reasonable costs and expenses of the
Liquidity Provider (including reasonable counsel fees and expenses) in
connection with (i) the enforcement of this Agreement or any other Operative
Agreement, (ii) the modification or amendment of, or supplement to, this
Agreement or any other Operative Agreement or such other documents which may be
delivered in connection herewith or therewith (whether or not the same shall
become effective) or (iii) any action or proceeding relating to any order,
injunction, or other process or decree restraining or seeking to restrain the
Liquidity Provider from paying any amount under this Agreement, the
Intercreditor Agreement or any other Operative Document or otherwise affecting
the application of funds in the Cash Collateral Accounts. In addition, subject
to Section 2.9 hereof, 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
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save the Liquidity Provider harmless from and against any and all liabilities
with respect to or resulting from any delay in paying or omission to pay such
taxes or fees.
Section 7.8 Binding Effect; Participation. (a) This Agreement shall
be binding upon and inure to the benefit of the Borrower and the Liquidity
Provider and their respective successors and assigns, except that neither the
Liquidity Provider (except as otherwise provided in this Section 7.8) nor the
Borrower shall have the right to assign its rights hereunder or any interest
herein without the prior written consent of the other party, subject to the
requirement of Section 7.8(b). The Liquidity Provider may grant participations
herein or in any of its rights or security hereunder (including, without
limitation, funding participations and participations in rights to receive
interest payments hereunder) and under the other Operative Agreements to such
Persons as the Liquidity Provider may in its sole discretion select, subject to
the requirement of Section 7.8(b). No such participation by the Liquidity
Provider, however, will relieve the Liquidity Provider of its obligations
hereunder. In connection with any participation or any proposed participation,
the Liquidity Provider may disclose to the participant or the proposed
participant any information that the Borrower is required to deliver or to
disclose to the Liquidity Provider pursuant to this Agreement. The Borrower
acknowledges and agrees that the Liquidity Provider's source of funds may derive
in part from its participants. Accordingly, references in this Agreement and the
other Operative Agreements to determinations, reserve and capital adequacy
requirements, increased costs, reduced receipts and the like as they pertain to
the Liquidity Provider shall be deemed also to include those of each of its
participants (subject, in each case, to the maximum amount that would have been
incurred by or attributable to the Liquidity Provider directly if the Liquidity
Provider, rather than the participant, had held the interest participated).
(b) If, pursuant to subsection (a) above, the Liquidity Provider
sells any participation to any bank or other entity (each, a "Participant"),
then, concurrently with the effectiveness of such participation, the Participant
shall (i) represent to the Liquidity Provider (for the benefit of the Liquidity
Provider and the Borrower) either (A) that it is incorporated under the laws of
the United States or a state thereof or (B) that under applicable law and
treaties, no taxes will be required to be withheld by the Borrower or the
Liquidity Provider with respect to any payments to be made to such Participant
in respect of this Agreement, (ii) furnish to the Liquidity Provider and the
Borrower either (x) a statement that it is incorporated under the laws of the
United States or a state thereof or (y) if it is not so incorporated, two copies
of a properly completed United States Internal Revenue Service Form 4224 or Form
1001, as appropriate, or other applicable form, certificate or document
prescribed by the Internal Revenue Service certifying, in each case, such
Participant's entitlement to a complete exemption from United States federal
withholding tax in respect to any and all payments to be made hereunder, and
(iii) agree (for the benefit of the Liquidity Provider and the Borrower) to
provide the Liquidity Provider and the Borrower a new Form 4224 or Form 1001, as
appropriate, (A) on or before the date that any such form expires or becomes
obsolete or (B) after the occurrence of any event requiring a change in the most
recent form previously delivered by it and prior to the immediately
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following due date of any payment by the Borrower hereunder, certifying in the
case of a Form 1001 or Form 4224 that such Participant is entitled to a complete
exemption from United States federal withholding tax on payments under this
Agreement. Unless the Borrower has received forms or other documents reasonably
satisfactory to it (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 without any obligation to gross-up or indemnify pursuant to
Section 3.3.
(c) Notwithstanding the other provisions of this Section 7.8, the
Liquidity Provider may assign and pledge all or any portion of the Advances
owing to it to any Federal Reserve Bank or the United States Treasury as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank, provided that any payment in respect of such assigned Advances made by the
Borrower to the Liquidity Provider in accordance with the terms of this
Agreement shall satisfy the Borrower's obligations hereunder in respect of such
assigned Advance to the extent of such payment. No such assignment shall release
the Liquidity Provider from its obligations hereunder.
Section 7.9 Severability. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or 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 non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States of America for the
Southern District of New York, and the appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in
such courts, and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
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(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 7.2, or
at such other address of which the Liquidity Provider shall have been
notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE TO
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS
BEING ESTABLISHED, including, without limitation, contract claims, tort claims,
breach of duty claims and all other common law and statutory claims. The
Borrower and the Liquidity Provider each warrant and represent that it has
reviewed this waiver with its legal counsel, and that it knowingly and
voluntarily waives its jury trial rights following consultation with such legal
counsel. THIS WAIVER CANNOT BE MODIFIED ORALLY.
(c) The Liquidity Provider hereby waives any immunity it may have
from the jurisdiction of the courts of the United States or of any State and
waives any immunity any of its properties located in the United States may have
from attachment or execution upon a judgment entered by any such court under the
United States Foreign Sovereign Immunities Act of 1976 or any similar successor
legislation.
Section 7.12 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 7.13 Entirety. This Agreement and the other Operative
Agreements constitute the entire agreement of the parties hereto with respect to
the subject matter hereof and thereof and supersede all prior understandings and
agreements of such parties.
Section 7.14 Headings; Section References. Section headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose. Unless the context
otherwise requires or otherwise indicated herein, all Section references in this
Agreement are references to Sections hereof.
-27-
Section 7.15 Transfer. The Liquidity Provider hereby acknowledges
and consents to the Transfer contemplated by the Assignment and Assumption
Agreement.
Section 7.16 LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE
LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO
DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL
BE UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE
STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first set forth above.
THE FIRST NATIONAL BANK OF
MARYLAND, not in its individual capacity
but solely as Subordination Agent, as
Borrower
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice-President
ABN AMRO BANK N.V., CHICAGO BRANCH,
as Liquidity Provider
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
-29-
Annex I to Irrevocable
Revolving Credit Agreement
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "Borrower"), hereby certifies to ABN AMRO Bank N.V. (the
"Liquidity Provider"), with reference to the Irrevocable Revolving Credit
Agreement Class B Certificates dated as of August 13, 1998, between the Borrower
and the Liquidity Provider (the "Liquidity Agreement"; the terms defined therein
and not otherwise defined herein being used herein as therein defined or
referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of an Interest Advance by the Liquidity Provider to be used for the
payment of interest on the Class B Certificates which was payable on the
Distribution Date falling on _____, __________ in accordance with the
terms and provisions of the Class B Trust Agreement and the Class B
Certificates and has not been paid pursuant to clause fourth of Section
3.2 of the Intercreditor Agreement or clause sixth of Section 3.3 of the
Intercreditor Agreement, which Advance is requested to be made on
_____________.
(3) The amount of the Interest Advance requested hereby (i) is
$_______________. _______, to be applied in respect of the payment of
interest which was due and payable on the Class B Certificates on such
Distribution Date, (ii) does not include any amount with respect to the
payment of principal of, or premium on, the Class A Certificates, the
Class B Certificates, the Class C Certificates or the Class D
Certificates, or interest on the Class A Certificates, the Class C
Certificates or the Class D Certificates, (iii) was computed in accordance
with the provisions of the Class B Certificates, the Class B Trust
Agreement and the Intercreditor Agreement (a copy of which computation is
attached hereto as Schedule I), (iv) does not exceed the Available
Commitment on the date hereof, and (v) has not been and is not the subject
of a prior or contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will apply the same in accordance with
the terms of Section 3.2 or 3.3 of the Intercreditor Agreement, as the
case may be, (b) no portion of such amount shall be applied by the
Borrower for any other purpose and (c) no portion of such amount until so
applied shall be commingled with other funds held by the Borrower.
(5) The Borrower hereby requests that the Advance requested hereby
be a Base Rate Advance and that such Base Rate Advance be converted into a
LIBOR Rate Advance on the third Business Day following your receipt of
this notice.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, the making of the Interest Advance as requested by this Notice of
Borrowing shall automatically reduce, subject to reinstatement in accordance
with the terms of the Liquidity Agreement, the Available Commitment by an amount
equal to the amount of the Interest Advance requested to be made hereby as set
forth in clause (i) of paragraph (3) of this Certificate and such reduction
shall automatically result in corresponding reductions in the amounts available
to be borrowed pursuant to a subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the ___________ day of ____________, _____________.
THE FIRST NATIONAL BANK OF MARYLAND,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:______________________________________
Name:
Title:
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Interest Advance Notice Of Borrowing]
Annex II to Irrevocable
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
Subordination Agent, as borrower (the "Borrower"), hereby certifies to ABN AMRO
Bank N.V. (the "Liquidity Provider"), with reference to the Irrevocable
Revolving Credit Agreement Class B Certificates dated as of August 13, 1998,
between the Borrower and the Liquidity Provider (the "Liquidity Agreement"; the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Downgrade Advance by the Liquidity Provider to be used for
the funding of the Class B Cash Collateral Account in accordance with
Section 3.6(c) of the Intercreditor Agreement by reason of the downgrading
of the short-term unsecured debt rating of the Liquidity Provider issued
by either Rating Agency below the applicable Threshold Rating, which
Advance is requested to be made on _________, ____.
(3) The amount of the Downgrade Advance requested hereby (i) is
$_________, which equals the Available Commitment on the date hereof and
is to be applied in respect of the funding of the Class B Cash Collateral
Account in accordance with Section 3.6(c) of the Intercreditor Agreement,
(ii) does not include any amount with respect to the payment of the
principal of, or premium on, the Class B Certificates, or principal of, or
interest or premium on, any Class of Certificates other than the Class B
Certificates, (iii) was computed in accordance with the provisions of the
Class B Certificates, the Class B 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 B
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.
(5) The Borrower hereby requests that the Advance requested hereby
be a Base Rate Advance and that such Base Rate Advance be converted into a
LIBOR Rate Advance on the third Business Day following your receipt of
this notice.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Downgrade Advance as requested by this Notice
of Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement; and
(B) following the making by the Liquidity Provider of the Downgrade Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the ___________ day of ____________, _____________.
THE FIRST NATIONAL BANK OF MARYLAND,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:______________________________________
Name:
Title:
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Downgrade Advance Notice of Borrowing]
Annex III to Irrevocable
Revolving Credit Agreement
NOTICE OF REPLACEMENT BORROWER
[Date]
Ladies and Gentlemen:
For value received, the undersigned
beneficiary hereby irrevocably transfers to:
[Name of Transferee]
[Address of Transferee]
all rights of the undersigned as Borrower under the Irrevocable Revolving Credit
Agreement Class B Certificates dated as of August 13, 1998 between the
undersigned Borrower and ABN AMRO BANK N.V., acting through its Chicago Branch
(the "Liquidity Agreement"). 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 Section 8.1 of the
Intercreditor Agreement (as defined in the Liquidity Agreement).
By this transfer, all rights of the undersigned as Borrower under
the Liquidity Agreement are transferred to the transferee and the transferee
shall hereafter have the sole rights as Borrower thereunder. The undersigned
shall pay any costs and expenses of such transfer, including, but not limited
to, transfer taxes or governmental charges.
We ask that this transfer be effective as of ____________, _______.
THE FIRST NATIONAL BANK OF MARYLAND,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:______________________________________
Name:
Title:
Annex IV to Irrevocable
Revolving Credit Agreement
NOTICE OF AUTOMATIC REDUCTION OF COMMITMENT
[Date]
Ladies and Gentlemen:
The undersigned, a duly authorized signatory of the undersigned
subordination agent (the "Borrower"), hereby notifies ABN AMRO Bank N.V. (the
"Liquidity Provider"), with reference to the Irrevocable Revolving Credit
Agreement Class B Certificates dated as of August 13, 1998, between the Borrower
and the Liquidity Provider (the "Liquidity Agreement"; the terms defined therein
and not otherwise defined herein being used herein as therein defined or
referenced), that, pursuant to Section 2.4(a) of the Liquidity Agreement, the
Commitment has been automatically reduced to $__________ effective __________.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the _____ day of _____, ____.
THE FIRST NATIONAL BANK OF MARYLAND,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:______________________________________
Name:
Title:
Annex V to Irrevocable
Revolving Credit Agreement
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
Subordination Agent, as borrower (the "Borrower"), hereby certifies to ABN AMRO
Bank N.V. (the "Liquidity Provider"), with reference to the Irrevocable
Revolving Credit Agreement Class B Certificates dated as of August 13, 1998,
between the Borrower and the Liquidity Provider (the "Liquidity Agreement"; the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Non-Extension Advance by the Liquidity Provider to be used
for the funding of the Class B Cash Collateral Account in accordance with
Section 3.6(d) of the Intercreditor Agreement, which Advance is requested
to be made on _________.
(3) The amount of the Non-Extension Advance requested hereby (i) is
$_________, which equals the Available Commitment on the date hereof and
is to be applied in respect of the funding of the Class B Cash Collateral
Account in accordance with Section 3.6(d) of the Intercreditor Agreement,
(ii) does not include any amount with respect to the payment of the
principal of, or premium on, the Class B Certificates, or principal of, or
interest or premium on, any Class of Certificates other than the Class B
Certificates, (iii) was computed in accordance with the provisions of the
Class B Certificates, the Class B 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 B
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.
(5) The Borrower hereby requests that the Advance requested hereby
be a Base Rate Advance and that such Base Rate Advance be converted into a
LIBOR Rate Advance on the third Business Day following your receipt of
this notice.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Non-Extension Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the obligation
of the Liquidity Provider to make further Advances under the Liquidity
Agreement; and (B) following the making by the Liquidity Provider of the
Non-Extension Advance requested by this Notice of Borrowing, the Borrower shall
not be entitled to request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the ___________ day of ____________, _____________.
THE FIRST NATIONAL BANK OF MARYLAND,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:______________________________________
Name:
Title:
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Non-Extension Advance Notice of Borrowing]
