1
EXHIBIT 4.11
EXECUTION COPY
REVOLVING CREDIT AGREEMENT (2001-1C)
Dated as of May 17, 2001
between
WILMINGTON TRUST COMPANY,
as Subordination Agent,
as agent and trustee for the
America West Airlines Pass Through Trust 2001-1C,
as Borrower
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
New York Branch,
as Liquidity Provider
Relating to
America West Airlines Pass Through Trust 2001-1C
8.37% America West Airlines Enhanced Pass Through Certificates, Series 2001-1C
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TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS.................................................................................1
Section 1.01 Certain Defined Terms..................................................................1
ARTICLE 2 AMOUNT AND TERMS OF THE COMMITMENT..........................................................7
Section 2.01 Advances...............................................................................7
Section 2.02 Making the Advances....................................................................7
Section 2.03 Fees...................................................................................9
Section 2.04 Automatic Adjustments and Termination of the Maximum Commitment........................9
Section 2.05 Repayments of Interest Advances or the Final Advance...................................9
Section 2.06 Repayments of Provider Advances.......................................................10
Section 2.07 Payments to the Liquidity Provider Under the Intercreditor Agreement..................11
Section 2.08 Book Entries..........................................................................11
Section 2.09 Payments from Available Funds Only....................................................11
Section 2.10 Extension of Expiry Date..............................................................12
ARTICLE 3 OBLIGATIONS OF THE BORROWER................................................................12
Section 3.01 Increased Costs.......................................................................12
Section 3.02 Capital Adequacy......................................................................13
Section 3.03 Payments Free of Deductions...........................................................14
Section 3.04 Payments..............................................................................15
Section 3.05 Computations..........................................................................15
Section 3.06 Payment on Non-Business Days..........................................................15
Section 3.07 Interest..............................................................................15
Section 3.08 Replacement of Borrower...............................................................17
Section 3.09 Funding Loss Indemnification..........................................................17
Section 3.10 Illegality............................................................................17
ARTICLE 4 CONDITIONS PRECEDENT.......................................................................18
Section 4.02 Conditions Precedent to Borrowing.....................................................19
ARTICLE 5 COVENANTS..................................................................................20
Section 5.01 Affirmative Covenants of the Borrower.................................................20
Section 5.02 Negative Covenants of the Borrower....................................................20
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TABLE OF CONTENTS
(CONTINUED)
ARTICLE 6 LIQUIDITY EVENTS OF DEFAULT................................................................20
ARTICLE 7 MISCELLANEOUS..............................................................................21
Section 7.01 Amendments, Etc.......................................................................21
Section 7.02 Notices, Etc..........................................................................21
Section 7.03 No Waiver; Remedies...................................................................22
Section 7.04 Further Assurances....................................................................22
Section 7.05 Indemnification; Survival of Certain Provisions.......................................22
Section 7.06 Liability of the Liquidity Provider...................................................22
Section 7.07 Costs, Expenses and Taxes.............................................................23
Section 7.08 Binding Effect; Participations........................................................23
Section 7.09 Severability..........................................................................25
Section 7.10 GOVERNING LAW.........................................................................25
Section 7.11 Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity..................25
Section 7.12 Execution in Counterparts.............................................................26
Section 7.13 Entirety..............................................................................26
Section 7.14 Headings..............................................................................26
Section 7.15 LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES......................................26
Section 7.16 Transfer..............................................................................26
Annex I Interest Advance Notice of Borrowing
Annex II Non-Extension Advance Notice of Borrowing
Annex III Downgrade Advance Notice of Borrowing
Annex IV Final Advance Notice of Borrowing
Annex V Notice of Termination
Annex VI Notice of Replacement Subordination Agent
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REVOLVING CREDIT AGREEMENT (2001-1C)
This REVOLVING CREDIT AGREEMENT (2001-1C), dated as of May 17, 2001 (as
it may be amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof, this "Agreement"), between WILMINGTON TRUST
COMPANY, a Delaware banking corporation, not in its individual capacity but
solely as Subordination Agent under the Intercreditor Agreement (each as defined
below), as agent and trustee for the Class C Trust (as defined below) (the
"Borrower"), and WESTDEUTSCHE LANDESBANK GIROZENTRALE, a German banking
institution organized under the laws of the State of North Rhine - Westphalia,
Germany, acting through its New York branch ("West LB" or the "Liquidity
Provider").
W I T N E S S E T H
WHEREAS, pursuant to the Class C Trust Agreement (as defined below),
the Class C Trust is issuing the Class C Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a
portion of the interest on the Class C Certificates in accordance with their
terms, has requested the Liquidity Provider to enter into this Agreement,
providing in part for the Borrower to request in specified circumstances that
Advances be made hereunder.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and of other good and valuable consideration the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Certain Defined Terms.
(a) For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(i) the terms used herein that are defined in this
Article I have the meanings assigned to them in this Article
I, and include the plural as well as the singular;
(ii) all references in this Agreement to designated
"Articles," "Sections" and other subdivisions are to the
designated Articles, Sections and other subdivisions of this
Agreement;
(iii) the words "herein," "hereof" and "hereunder"
and other words of similar import refer to this Agreement as a
whole and not to any particular Article, Section or other
subdivision; and
(iv) the term "including" means "including without
limitation".
"Additional Costs" has the meaning specified in Section 3.01.
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
"Advance" means an Interest Advance, a Final Advance, a
Provider Advance or an Applied Provider Advance, as the case may be.
"Applicable Liquidity Rate" has the meaning specified in
Section 3.07(g).
"Applicable Margin" means (x) with respect to any Unpaid
Advance or Applied Provider Advance, 2.25% and (y) with respect to any Unapplied
Provider Advance, 0.35%.
"Applied Downgrade Advance" has the meaning specified in
Section 2.06(a).
"Applied Non-Extension Advance" has the meaning assigned to
such term in Section 2.06(a).
"Applied Provider Advance" has the meaning assigned to such
term in Section 2.06(a).
"Assignment and Assumption Agreement" means the Assignment and
Assumption Agreement to be entered into between the Borrower and the trustee of
the Successor Trust, substantially in the form of Exhibit D to the Class C Trust
Agreement.
"Base Rate" means the rate of interest announced publicly by
WestLB from time to time in New York, New York, as its base rate.
"Base Rate Advance" means an Advance that bears interest at a
rate based upon the Base Rate.
"Borrower" has the meaning specified in the recitals to this
Agreement.
"Borrowing" means the making of Advances requested by delivery
of a Notice of Borrowing.
"Business Day" means any day (x) other than a Saturday or
Sunday or a day on which commercial banks are authorized or required by law to
close in Phoenix, Arizona, New York, New York or, so long as any Class C
Certificate is outstanding, the city and state in which the Class C Trustee, the
Borrower or any Indenture Trustee maintains its corporate trust office or
receives and disburses funds, and (y) if the applicable Business Day relates to
any Advance or amount bearing interest based on LIBOR, on which dealings are
carried on in the London interbank market.
"Consent Period" has the meaning specified in Section 2.10.
"Deposits" has the meaning assigned to such term in the
Deposit Agreement.
"Depositary" means Citibank, N.A.
"Deposit Agreement" means the Deposit Agreement (2001-1C)
dated as of the date hereof between Wilmington Trust Company, as Escrow Agent
and Citibank, N.A., as
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
Depositary, pertaining to the Class C Certificates, as the same may be amended,
modified or supplemented from time to time in accordance with the terms thereof.
"Downgrade Advance" means an Advance made pursuant to Section
2.02(c).
"Effective Date" has the meaning specified in Section 4.01.
The delivery of the certificate of the Liquidity Provider contemplated by
Section 4.01(e) shall be conclusive evidence that the Effective Date has
occurred.
"Excluded Taxes" means (i) any Taxes imposed on, based on, or
measured by the overall net income, capital, franchises, or receipts (other than
Taxes which are or are in the nature of sales or use Taxes or value added Taxes)
of the Liquidity Provider or any of its Lending Offices, (ii) withholding Taxes
imposed under laws in effect on the date hereof by the United States on payments
to a recipient in the jurisdiction in which the Liquidity Provider's initial
Lending Office is located, (iii) withholding Taxes imposed by the United States
on payments to a recipient in any other jurisdiction to which such Lending
Office is moved if, under the laws in effect at the time of such move, such laws
would require greater withholding of Taxes on payments to such Liquidity
Provider acting from an office in such jurisdiction than would be required on
payments to such Liquidity Provider acting from an office in the jurisdiction
from which such Lending Office was moved, and (iv) any withholding Taxes imposed
by the United States which are imposed or increased as a result of the Liquidity
Provider failing to deliver to the Borrower any certificate or document (which
certificate or document in the good faith judgment of the Liquidity Provider it
is able and legally entitled to provide) which is reasonably requested by the
Borrower to establish that payments under this Agreement are exempt from (or
entitled to a reduced rate of) withholding Tax.
"Expenses" means liabilities, obligations, damages,
settlements, penalties, claims, actions, suits, costs, expenses, and
disbursements (including, without limitation, reasonable fees and disbursements
of legal counsel and costs of investigation), provided that Expenses shall not
include Taxes.
"Expiry Date" means May 15, 2002, initially, or any date to
which the Expiry Date is extended pursuant to Section 2.10.
"Final Advance" means an Advance made pursuant to Section
2.02(d).
"Intercreditor Agreement" means the Intercreditor Agreement,
dated as of the date hereof among the Trustees, the Liquidity Provider, the
liquidity provider under each Liquidity Facility (other than this Agreement),
the Policy Provider and the Subordination Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
"Interest Advance" means an Advance made pursuant to Section
2.02(a).
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
"Interest Period" means, with respect to any LIBOR Advance,
each of the following periods:
(1) the period beginning on the third Business Day following
either (x) the Liquidity Provider's receipt of the Notice of Borrowing
for such LIBOR Advance or (y) the withdrawal of funds from the Class C
Cash Collateral Account for the purpose of paying interest on the Class
C Certificates as contemplated by Section 2.06(a) hereof and, in either
case, ending on the next Regular Distribution Date; and
(2) each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the next Regular
Distribution Date;
provided, however, that if (x) the Final Advance shall have been made, or (y)
other outstanding Advances shall have been converted into the Final Advance,
then the Interest Periods shall be successive periods of one month beginning on
the third Business Day following the Liquidity Provider's receipt of the Notice
of Borrowing for such Final Advance (in the case of clause (x) above) or the
Regular Distribution Date following such conversion (in the case of clause (y)
above).
"Lending Office" means the lending office of the Liquidity
Provider, presently located at New York, New York, or such other lending office
as the Liquidity Provider from time to time shall notify the Borrower as its
lending office hereunder.
"LIBOR" means, with respect to any Interest Period, the
interest rate per annum at which deposits in United States dollars are offered
to prime banks in the London interbank market as indicated on display page 3750
(British Bankers Association-LIBOR) of the Dow Xxxxx Markets Service (or such
other page as may replace such display page 3750 for the purpose of displaying
London interbank offered rates for United States dollar deposits) or, if not so
indicated, the average (rounded upwards to the nearest 1/16%), as determined by
the Liquidity Provider, of such rates as indicated on the Reuters Screen LIBO
Page (or such other page as may replace such Reuters Screen LIBO Page for the
purpose of displaying London interbank offered rates for United States dollar
deposits) or, if neither such alternative is indicated, the average (rounded
upwards to the nearest 1/16%), as determined by the Liquidity Provider, of such
rates offered by the London Reference Banks to prime banks in the London
interbank market, in each case at or about 11:00 a.m. (London time) on the day
two Business Days prior to the first day of such Interest Period for deposits of
a duration equal to such Interest Period (or such other period most nearly
corresponding to such period) in an amount substantially equal to the principal
amount of the applicable LIBOR Advance as of the first day of such Interest
Period. The Liquidity Provider will, if necessary, request that each of the
London Reference Banks provide a quotation of its rate. If at least two such
quotations are provided, the rate will be the average of the quotations (rounded
upwards to the nearest 1/100%). If no such quotation can be obtained, the rate
will be the Base Rate.
"LIBOR Advance" means an Advance bearing interest at a rate
based upon LIBOR.
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"Liquidity Event of Default" means the occurrence of either
(a) the Acceleration of all of the Equipment Notes (provided, that, with respect
to the period prior to the Delivery Period Expiry Date, such Equipment Notes
have an aggregate outstanding principal balance in excess of $100,000,000) or
(b) an America West Bankruptcy Event.
"Liquidity Indemnitee" means (i) the Liquidity Provider, (ii)
the directors, officers, employees, servants and agents of the Liquidity
Provider, and (iii) the successors and permitted assigns of the persons
described in clauses (i) through (ii), inclusive.
"Liquidity Provider" has the meaning specified in the recital
of parties to this Agreement.
"London Reference Banks" means the principal London offices of
Citicorp USA, Inc., The Fuji Bank, Limited, National Westminster Bank plc and
The Industrial Bank of Japan, Limited, or such other bank or banks as may from
time to time be agreed to by America West and the Liquidity Provider.
"Maximum Available Commitment" shall mean, subject to the
proviso contained in the third sentence of Section 2.02(a), at any time of
determination, (a) the Maximum Commitment at such time, less (b) the aggregate
amount of each Interest Advance outstanding at such time; provided, however,
that following a Provider Advance or a Final Advance, the Maximum Available
Commitment shall be zero.
"Maximum Commitment" means initially $7,158,986.55, as the
same may be reduced or increased from time to time in accordance with Section
2.04(a).
"Non-Excluded Tax" has the meaning specified in Section 3.03.
"Non-Extension Advance" means an Advance made pursuant to
Section 2.02(b).
"Notice of Borrowing" has the meaning specified in Section
2.02(e).
"Notice of Replacement Subordination Agent" has the meaning
specified in Section 3.08.
"Offering Memorandum" means the Offering Memorandum dated May
10, 2001 relating to the Certificates, as such Offering Memorandum may be
amended or supplemented.
"Participating Institution" has the meaning specified in
Section 7.08(b).
"Participation Agreement" means, with respect to each
Indenture, the "Participation Agreement" referred to therein.
"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.
"Provider Advance" means a Downgrade Advance or a
Non-Extension Advance.
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
"Regulatory Change" has the meaning specified in Section 3.01.
"Replenishment Amount" has the meaning assigned to such term
in Section 2.06(b).
"Required Amount" means, for any day, the sum of the aggregate
amount of interest, calculated at the rate per annum equal to the Stated
Interest Rate for the Class C Certificates on the basis of a 360-day year
comprised of twelve 30-day months, that would be payable on the Class C
Certificates on each of the three successive semiannual Regular Distribution
Dates following such day or, if such day is a Regular Distribution Date, on such
day and the succeeding two semiannual Regular Distribution Dates, in each case
calculated on the basis of the Pool Balance of the Class C Certificates on such
day and without regard to expected future payments of principal on the Class C
Certificates. Notwithstanding the above, in the event of any Policy Provider
Election, for purposes of the definition of the Required Amount the Pool Balance
shall be deemed to be reduced by the amount (if positive) by which (a) the then
outstanding principal balance of each Series C Equipment Note in respect of
which such Policy Provider Election has been made shall exceed (b) the amount of
any Policy Drawings previously paid by the Policy Provider in respect of
principal on such Series C Equipment Note.
"Successor Trust" means America West Airlines Pass Through
Trust 2001-1C-S.
"Termination Date" means the earliest to occur of the
following: (i) the Expiry Date; (ii) the date on which the Borrower delivers to
the Liquidity Provider a certificate, signed by a Responsible Officer of the
Borrower, certifying that all of the Class C Certificates have been paid in full
(or provision has been made for such payment in accordance with the
Intercreditor Agreement and the Trust Agreement) or are otherwise no longer
entitled to the benefits of this Agreement; (iii) the date on which the Borrower
delivers to the Liquidity Provider a certificate, signed by a Responsible
Officer of the Borrower, certifying that a Replacement Liquidity Facility has
been substituted for this Agreement in full pursuant to Section 3.6(e) of the
Intercreditor Agreement; (iv) the fifth Business Day following the receipt by
the Borrower and America West of a Termination Notice from the Liquidity
Provider pursuant to Section 6.01; and (v) the date on which no Advance is or
may (including by reason of reinstatement as herein provided) become available
for a Borrowing hereunder.
"Termination Notice" means the Notice of Termination
substantially in the form of Annex V to this Agreement.
"Unapplied Provider Advance" means any Provider Advance other
than an Applied Provider Advance.
"Unpaid Advance" has the meaning specified in Section 2.05.
(b) Terms Defined in the Intercreditor Agreement. For all
purposes of this Agreement, the following terms shall have the respective
meanings assigned to such terms in the Intercreditor Agreement:
"Acceleration," "Affiliate," "America West," "America West Bankruptcy
Event," "Certificates," "Class C Cash Collateral Account," "Class C
Certificates," "Class C Trust,"
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
"Class C Trust Agreement," "Class C Trustee," "Class G Certificates," "Class D
Certificates," "Closing Date," "Controlling Party," "Delivery Period Expiry
Date," "Distribution Date," "Downgraded Facility," "Equipment Notes," "Fee
Letter," "Final Legal Distribution Date," "Indenture," "Initial Purchasers,"
"Interest Payment Date," "Investment Earnings," "Liquidity Facility," "Liquidity
Obligations," "Loan Trustee," "Xxxxx'x," "Non-Extended Facility," "Note Purchase
Agreement," "Operative Agreements," "Performing Equipment Note," "Person,"
"Policy Drawings," "Policy Provider," "Policy Provider Election," "Pool
Balance," "Purchase Agreement," "Rating Agency," "Regular Distribution Date,"
"Replacement Liquidity Facility," "Responsible Officer," "Scheduled Payment,"
"Special Payment," "Standard & Poor's," "Stated Interest Rate," "Subordination
Agent," "Taxes," "Threshold Rating," "Trust Agreement," "Trustee," and "Written
Notice."
ARTICLE 2
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01 Advances. The Liquidity Provider hereby irrevocably
agrees, on the terms and conditions hereinafter set forth, to make Advances to
the Borrower from time to time on any Business Day during the period from the
Effective Date until 12:00 noon (New York time) on the Expiry Date (unless the
obligations of the Liquidity Provider shall be earlier terminated in accordance
with the terms of Section 2.04(b)) in an aggregate amount at any time
outstanding not to exceed the Maximum Commitment.
Section 2.02 Making the Advances.
(a) Each "Interest Advance" shall be made in a single
Borrowing by delivery to the Liquidity Provider of a written and completed
Notice of Borrowing in substantially the form of Annex I, signed by a
Responsible Officer of the Borrower, such Interest Advance in an amount not
exceeding the Maximum Available Commitment at such time and shall be used solely
for the payment when due of interest on the Class C Certificates at the Stated
Interest Rate therefor in accordance with Section 3.6(a) of the Intercreditor
Agreement. Each Interest Advance made hereunder shall automatically reduce the
Maximum Available Commitment and the amount available to be borrowed hereunder
by subsequent Advances by the amount of such Interest Advance (subject to
reinstatement as provided in the next sentence). Upon repayment to the Liquidity
Provider in full or in part of the amount of any Interest Advance made pursuant
to this Section 2.02(a), together with accrued interest thereon (as provided
herein), the Maximum Available Commitment shall be reinstated by the amount of
such repaid Interest Advance, but not to exceed the Maximum Commitment;
provided, however, that the Maximum Available Commitment shall not be so
reinstated at any time if (i) a Liquidity Event of Default shall have occurred
and be continuing and (ii) there is a Performing Note Deficiency.
(b) A "Non-Extension Advance" shall be made in a single
Borrowing if this Agreement is not extended in accordance with Section 3.6(d) of
the Intercreditor Agreement (unless a Replacement Liquidity Facility to replace
this Agreement shall have been delivered to the Borrower as contemplated by said
Section 3.6(d) within the time period specified in such Section) by delivery to
the Liquidity Provider of a written and completed Notice of Borrowing in
substantially the form of Annex II attached hereto, signed by a Responsible
Officer of the
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
Borrower, in an amount equal to the Maximum Available Commitment at such time,
and shall be used to fund the Class C Cash Collateral Account in accordance with
said Section 3.6(d) and Section 3.6(f) of the Intercreditor Agreement.
(c) A "Downgrade Advance" shall be made in a single Borrowing
upon a downgrading of the Liquidity Provider's short-term unsecured debt rating
issued by either Rating Agency below the applicable Threshold Rating (as
provided for in Section 3.6(c) of the Intercreditor Agreement) unless a
Replacement Liquidity Facility shall have been delivered to the Borrower in
accordance with said Section 3.6(c), by delivery to the Liquidity Provider of a
written and completed Notice of Borrowing in substantially the form of Annex
III, signed by a Responsible Officer of the Borrower, in an amount equal to the
Maximum Available Commitment at such time, and shall be used to fund the Class C
Cash Collateral Account in accordance with said Section 3.6(c) and Section
3.6(f) of the Intercreditor Agreement. Upon such downgrading, the Liquidity
Provider shall promptly deliver notice thereof to the Borrower, the Trustee and
America West.
(d) A "Final Advance" shall be made in a single Borrowing upon
the receipt by the Borrower of a Termination Notice from the Liquidity Provider
pursuant to Section 6.01, by delivery to the Liquidity Provider of a written and
completed Notice of Borrowing in substantially the form of Annex IV, signed by a
Responsible Officer of the Borrower, in an amount equal to the Maximum Available
Commitment at such time, and shall be used to fund the Class C Cash Collateral
Account (in accordance with Section 3.6(f) and Section 3.6(i) of the
Intercreditor Agreement).
(e) Each Borrowing shall be made on notice in writing (a
"Notice of Borrowing") in substantially the form required by Section 2.02(a),
2.02(b), 2.02(c) or 2.02(d), as the case may be, given by the Borrower to the
Liquidity Provider. If a Notice of Borrowing is delivered by the Borrower in
respect of any Borrowing no later than 12:00 noon (New York time) on a Business
Day, upon satisfaction of the conditions precedent set forth in Section 4.02
with respect to a requested Borrowing, the Liquidity Provider shall, before 4:00
p.m. (New York time) on the date of such Borrowing or on such later Business Day
specified by the Borrower in such Notice of Borrowing, make available for the
account of its Lending Office, in U.S. dollars and in immediately available
funds, the amount of such Borrowing to be paid to the Borrower in accordance
with its payment instructions. If a Notice of Borrowing is delivered by the
Borrower in respect of any Borrowing after 12:00 noon (New York time) on a
Business Day, upon satisfaction of the conditions precedent set forth in Section
4.02 with respect to a requested Borrowing, the Liquidity Provider shall, before
11:00 a.m. (New York time) on the first Business Day following the day of
receipt of such Notice of Borrowing or on such later Business Day specified by
the Borrower in such Notice of Borrowing, make available to the Borrower, in
accordance with its payment instructions, in U.S. dollars and in immediately
available funds, the amount of such Borrowing. Payments of proceeds of a
Borrowing shall be made by wire transfer of immediately available funds to the
Borrower in accordance with such wire transfer instructions as the Borrower
shall furnish from time to time to the Liquidity Provider for such purpose. Each
Notice of Borrowing shall be irrevocable and binding on the Borrower. Each
Notice of Borrowing shall be effective upon delivery of a copy thereof to the
Liquidity Provider's New York Branch at the address specified in Section 7.02.
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
(f) Upon the making of any Advance requested pursuant to a
Notice of Borrowing in accordance with the Borrower's payment instructions, the
Liquidity Provider shall be fully discharged of its obligation hereunder with
respect to such Notice of Borrowing, and the Liquidity Provider shall not
thereafter be obligated to make any further Advances hereunder in respect of
such Notice of Borrowing to the Borrower or to any other Person. If the
Liquidity Provider makes an Advance requested pursuant to a Notice of Borrowing
before 11:00 a.m. (New York time) on the second Business Day after the date of
payment specified in said Section 2.02(e), the Liquidity Provider shall have
fully discharged its obligations hereunder with respect to such Advance and an
event of default shall not have occurred hereunder. Following the making of any
Advance pursuant to Section 2.02(b), Section 2.02(c) or Section 2.02(d) to fund
the Class C Cash Collateral Account, the Liquidity Provider shall have no
interest in or rights to the Class C Cash Collateral Account, such Advance or
any other amounts from time to time on deposit in the Class C Cash Collateral
Account; provided, however, that the foregoing shall not affect or impair the
obligations of the Subordination Agent to make the distributions contemplated by
Section 3.6(e) or (f) of the Intercreditor Agreement and provided further, that
the foregoing shall not affect or impair the rights of the Liquidity Provider to
provide written instructions with respect to the investment and reinvestment of
the Cash Collateral Accounts to the extent provided in Section 2.2(b) of the
Intercreditor Agreement. By paying to the Borrower proceeds of Advances
requested by the Borrower in accordance with the provisions of this Agreement,
the Liquidity Provider makes no representation as to, and assumes no
responsibility for, the correctness or sufficiency for any purpose of the amount
of the Advances so made and requested.
Section 2.03 Fees. The Borrower agrees to pay to the Liquidity Provider
the fees set forth in the Fee Letter.
Section 2.04 Automatic Adjustments and Termination of the Maximum
Commitment.
(a) Automatic Adjustments. Promptly following each date on
which the Required Amount is (1) reduced as a result of a reduction in the Pool
Balance of the Class C Certificates or otherwise, (2) increased as a result of
an increase in the Stated Interest Rate or (3) subsequent to such increase
described in clause (2), reduced pursuant to the definition of "Stated Interest
Rate" the Maximum Commitment shall automatically be reduced or increased, as the
case may be, to an amount equal to the Required Amount (as calculated by the
Borrower). The Borrower shall give notice of any such automatic reduction or
increase, as the case may be, of the Maximum Commitment to the Liquidity
Provider within two Business Days thereof. The failure by the Borrower to
furnish any such notice shall not affect such automatic reduction or increase of
the Maximum Commitment.
(b) Termination. Upon the making of any Provider Advance or
Final Advance hereunder or the occurrence of the Termination Date, the
obligation of the Liquidity Provider to make further Advances hereunder shall
automatically and irrevocably terminate, and the Borrower shall not be entitled
to request any further Borrowing hereunder.
Section 2.05 Repayments of Interest Advances or the Final Advance.
Subject to Sections 2.06, 2.07 and 2.09, the Borrower hereby agrees, without
notice of an Advance or demand for repayment from the Liquidity Provider (which
notice and demand are hereby waived
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
by the Borrower), to pay, or to cause to be paid, to the Liquidity Provider on
each date on which the Liquidity Provider shall make an Interest Advance or the
Final Advance, an amount equal to (a) the amount of such Advance (any such
Advance, until repaid, is referred to herein as an "Unpaid Advance"), plus (b)
interest on the amount of each such Unpaid Advance as provided in Section 3.07;
provided, however, that if (i) the Liquidity Provider shall make a Provider
Advance at any time after making one or more Interest Advances which shall not
have been repaid in accordance with this Section 2.05 or (ii) this Liquidity
Facility shall become a Downgraded Facility or Non-Extended Facility at any time
when unreimbursed Interest Advances have reduced the Maximum Available
Commitment to zero, then such Interest Advances shall cease to constitute Unpaid
Advances and shall be deemed to have been changed into an Applied Downgrade
Advance or an Applied Non-Extension Advance, as the case may be, for all
purposes of this Agreement (including, for the purpose of determining when such
Interest Advance is required to be repaid to the Liquidity Provider in
accordance with Section 2.06 and for the purposes of Section 2.06(b)). The
Borrower and the Liquidity Provider agree that the repayment in full of each
Interest Advance and Final Advance on the date such Advance is made is intended
to be a contemporaneous exchange for new value given to the Borrower by the
Liquidity Provider.
Section 2.06 Repayments of Provider Advances.
(a) Amounts advanced hereunder in respect of a Provider
Advance shall be deposited in the Class C Cash Collateral Account, invested and
withdrawn from the Class C Cash Collateral Account as set forth in Sections
3.6(c), (d) and (f) of the Intercreditor Agreement. The Borrower agrees to pay
to the Liquidity Provider, on each Regular Distribution Date, commencing on the
first Regular Distribution Date after the making of a Provider Advance, interest
on the principal amount of any such Provider Advance as provided in Section
3.07; provided, however, that amounts in respect of a Provider Advance withdrawn
from the Class C Cash Collateral Account for the purpose of paying interest on
the Class C Certificates in accordance with Section 3.6(f) of the Intercreditor
Agreement (the amount of any such withdrawal being (y) in the case of a
Downgrade Advance, an "Applied Downgrade Advance" and (z) in the case of a
Non-Extension Advance, an "Applied Non-Extension Advance" and, together with an
Applied Downgrade Advance, an "Applied Provider Advance") shall thereafter
(subject to Section 2.06(b)) be treated as an Interest Advance under this
Agreement for purposes of determining the Applicable Liquidity Rate for interest
payable thereon; and provided, further, that if, following the making of a
Provider Advance, the Liquidity Provider delivers a Termination Notice to the
Borrower pursuant to Section 6.01, such Provider Advance shall thereafter be
treated as a Final Advance under this Agreement for purposes of determining the
Applicable Liquidity Rate for interest payable thereon and the obligation for
repayment thereof. Subject to Sections 2.07 and 2.09 hereof, immediately upon
the withdrawal of any amounts from the Class C Cash Collateral Account on
account of a reduction in the Required Amount, the Borrower shall repay to the
Liquidity Provider a portion of the Provider Advances in a principal amount
equal to the amount of such reduction, plus interest on the principal amount
prepaid as provided in Section 3.07.
(b) At any time when an Applied Provider Advance (or any
portion thereof) is outstanding, upon the deposit in the Class C Cash Collateral
Account of any amount pursuant to clause third of Section 2.4(b) of the
Intercreditor Agreement, clause third of Section 3.2 of the
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Intercreditor Agreement or clause fourth of Section 3.3 of the Intercreditor
Agreement (any such amount being a "Replenishment Amount") for the purpose of
replenishing or increasing the balance thereof up to the amount of the Required
Amount at such time, (i) the aggregate outstanding principal amount of all
Applied Provider Advances (and of Provider Advances treated as an Interest
Advance for purposes of determining the Applicable Liquidity Rate for interest
payable thereon) shall be automatically reduced by the amount of such
Replenishment Amount and (ii) the principal amount of all outstanding Unapplied
Provider Advances shall be automatically increased by the amount of such
Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity Facility in
replacement of this Agreement in accordance with Section 3.6(e) of the
Intercreditor Agreement, amounts remaining on deposit in the Class C Cash
Collateral Account after giving effect to any Applied Provider Advance on the
date of such replacement shall be reimbursed to the Liquidity Provider, but only
to the extent such amounts are necessary to repay in full to the Liquidity
Provider all amounts owing to it hereunder.
Section 2.07 Payments to the Liquidity Provider Under the Intercreditor
Agreement. In order to provide for payment or repayment to the Liquidity
Provider of any amounts hereunder, the Intercreditor Agreement provides that
amounts available and referred to in Articles II and III of the Intercreditor
Agreement, to the extent payable to the Liquidity Provider pursuant to the terms
of the Intercreditor Agreement (including, without limitation, Section 3.6(f) of
the Intercreditor Agreement), shall be paid to the Liquidity Provider in
accordance with the terms thereof. Amounts so paid to the Liquidity Provider
shall be applied by the Liquidity Provider to Liquidity Obligations then due and
payable in the order of priority required by the applicable provisions of
Articles II and III of the Intercreditor Agreement or, if not provided for in
the Intercreditor Agreement, then in such manner as the Liquidity Provider shall
deem appropriate.
Section 2.08 Book Entries. The Liquidity Provider shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower resulting from Advances made from time to time and
the amounts of principal and interest payable hereunder and paid from time to
time in respect thereof; provided, however, that the failure by the Liquidity
Provider to maintain such account or accounts shall not affect the obligations
of the Borrower in respect of Advances.
Section 2.09 Payments from Available Funds Only. All payments to be
made by the Borrower under this Agreement shall be made only from amounts
received by it that constitute Scheduled Payments or Special Payments or
payments under Section 7.1 or 9.1, as the case may be, of any Participation
Agreement and Section 6 of the Note Purchase Agreement, and only to the extent
that the Borrower shall have sufficient income or proceeds therefrom to enable
the Borrower to make payments in accordance with the terms hereof after giving
effect to the priority of payments provisions set forth in the Intercreditor
Agreement. The Liquidity Provider agrees that it shall look solely to such
amounts to the extent available for distribution to it as provided in the
Intercreditor Agreement and this Agreement and that the Borrower, in its
individual capacity, is not personally liable to it for any amounts payable or
liability under this Agreement except as expressly provided in this Agreement or
the Intercreditor Agreement. Amounts on deposit in the Class C Cash Collateral
Account shall be available to the Borrower to
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make payments under this Agreement only to the extent and for the purposes
expressly contemplated in Section 3.6(f) of the Intercreditor Agreement.
Section 2.10 Extension of Expiry Date. No earlier than the 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 Legal
Distribution Date for the Class C Certificates), the Borrower shall request that
the Liquidity Provider extend the Expiry Date to the earlier of (i) the date
that is 15 days after the Final Legal Distribution Date for the Class C
Certificates and (ii) the date that is the day immediately preceding the 364th
day occurring after the last day of the Consent Period (as hereinafter defined).
Whether or not the Borrower has made such request, the Liquidity Provider shall
advise the Borrower, no earlier than the 40th day (or, if earlier, the date of
the Liquidity Provider's receipt of such request, if any, from the Borrower) and
no later than the 25th day prior to the then effective Expiry Date (such period
the "Consent Period"), whether, in its sole discretion, it agrees to so extend
the Expiry Date. If the Liquidity Provider advises the Borrower on or before the
date on which the Consent Period ends that such Expiry Date shall not be so
extended, or fails to irrevocably and unconditionally advise the Borrower on or
before the date on which the Consent Period ends that such Expiry Date shall be
so extended (and, in each case, if the Liquidity Provider shall not have been
replaced in accordance with Section 3.6(e) of the Intercreditor Agreement), the
Borrower shall be entitled on and after the date on which the Consent Period
ends (but prior to the then effective Expiry Date) to request a Non-Extension
Advance in accordance with Section 2.02(b) and Section 3.6(d) of the
Intercreditor Agreement.
ARTICLE 3
OBLIGATIONS OF THE BORROWER
Section 3.01 Increased Costs. The Borrower shall pay to the Liquidity
Provider from time to time such amounts as may be necessary to compensate the
Liquidity Provider for any costs incurred by the Liquidity Provider which are
attributable to its making or maintaining any Advances hereunder or its
obligation to make any such Advances hereunder, or any reduction in any amount
receivable by the Liquidity Provider under this Agreement or the Intercreditor
Agreement in respect of any such Advances or such obligation (such increases in
costs and reductions in amounts receivable being herein called "Additional
Costs"), resulting from any change after the date of this Agreement in U.S.
federal, state, or municipal, or any foreign laws or regulations, or the
adoption or making after such date of any interpretation, regulation, directive,
guideline, requirement or request whether or not having the force of law, by any
court or governmental or monetary authority charged with the interpretation or
administration thereof (a "Regulatory Change"), which: (1) changes the basis of
taxation of any amounts payable to the Liquidity Provider under this Agreement
in respect of any such Advances or such obligation (other than Taxes); or (2)
imposes or modifies any reserve, special deposit, compulsory loan or similar
requirements relating to any extensions of credit or other assets of, or any
deposits with other liabilities of, the Liquidity Provider (including any such
Advances or such obligation or any deposits referred to in the definition of
LIBOR or related definitions). The Liquidity Provider agrees to use reasonable
efforts (consistent with its internal policy and applicable legal and regulatory
restrictions) to change the jurisdiction of its Lending Office if making such
change would avoid the need for, or reduce the amount of, any amount payable
under this
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Section 3.01 that may thereafter accrue and would not, in the reasonable
judgment of the Liquidity Provider, be otherwise disadvantageous to the
Liquidity Provider.
The Liquidity Provider shall notify the Borrower of any event occurring
after the date of this Agreement that shall entitle the Liquidity Provider to
compensation pursuant to this Section 3.01 as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation, which
notice shall describe in reasonable detail the calculation of the amounts owed
under this Section 3.01; provided, that if the Liquidity Provider fails to give
such notice within 180 days after it obtains such knowledge, the Liquidity
Provider shall, with respect to any costs resulting from such event, only be
entitled to payment under this Section 3.01 for costs incurred from and after
the date 180 days prior to the date the Liquidity Provider does give such
notice. Determinations by the Liquidity Provider for purposes of this Section
3.01 of the effect of any Regulatory Change on its costs of making or
maintaining Advances or on amounts receivable by it in respect of Advances, and
of the additional amounts required to compensate the Liquidity Provider in
respect of any Additional Costs, shall be prima facie evidence of the amount
owed under this Section 3.01.
Notwithstanding the preceding two paragraphs, the Liquidity Provider
and the Subordination Agent agree that any permitted assignee or participant of
the initial Liquidity Provider that is not a bank shall not be entitled to the
benefits of the preceding two paragraphs (but without limiting the provisions of
Section 7.08 hereof).
Section 3.02 Capital Adequacy. If (1) compliance with any judicial,
administrative or other governmental interpretation of any law or regulation or
(2) compliance by the Liquidity Provider or any corporation controlling the
Liquidity Provider with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) has the effect
of requiring an increase in the amount of capital required or expected to be
maintained by the Liquidity Provider or any corporation controlling the
Liquidity Provider, and such increase is based upon the Liquidity Provider's
obligations hereunder and other similar obligations, the Borrower shall pay to
the Liquidity Provider such additional amount as shall be reasonably allocable
to the Liquidity Provider's obligations to the Borrower hereunder. The Liquidity
Provider agrees to use reasonable efforts (consistent with applicable legal and
regulatory restrictions) to change the jurisdiction of its Lending Office if
making such change would avoid the need for, or reduce the amount of, any amount
payable under this Section 3.02 that may thereafter accrue and would not, in the
reasonable judgment of the Liquidity Provider, be otherwise disadvantageous to
the Liquidity Provider.
The Liquidity Provider shall notify the Borrower of any event occurring
after the date of this Agreement that shall entitle the Liquidity Provider to
compensation pursuant to this Section 3.02 as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation, which
notice shall describe in reasonable detail the calculation of the amounts owed
under this Section 3.02; provided, that if the Liquidity Provider fails to give
such notice within 180 days after it obtains such knowledge, the Liquidity
Provider shall, with respect to any costs resulting from such event, only be
entitled to payment under this Section 3.02 for costs incurred from and after
the date 180 days prior to the date the Liquidity Provider does give such
notice. Determinations by the Liquidity Provider for purposes of this Section
3.02 of the effect of any increase in the amount of capital required to be
maintained by the Liquidity
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Provider and of the amount allocable to the Liquidity Provider's obligations to
the Borrower hereunder shall be prima facie evidence of the amounts owed under
this Section 3.02.
Notwithstanding the preceding two paragraphs, the Liquidity Provider
and the Subordination Agent agree that any permitted assignee or participant of
the initial Liquidity Provider that is not a bank shall not be entitled to the
benefits of the preceding two paragraphs (but without limiting the provisions of
Section 7.08 hereof).
Section 3.03 Payments Free of Deductions.
(a) All payments made by the Borrower under this Agreement
shall be made free and clear of, and without reduction for or on account of, any
Taxes, excluding Excluded Taxes (such non-excluded taxes being referred to
herein, collectively, as "Non-Excluded Taxes"). If any Non-Excluded Taxes are
required to be withheld or deducted from any amounts payable to the Liquidity
Provider under this Agreement, the Borrower shall (i) within the time prescribed
therefor by applicable law pay to the appropriate governmental or taxing
authority the full amount of any such Non-Excluded Taxes (and any additional
Non-Excluded Taxes in respect of the payment required under clause (ii) below)
and make such reports or returns in connection therewith at the time or times
and in the manner prescribed by applicable law, and (ii) pay to the Liquidity
Provider an additional amount which (after deduction of all such Non-Excluded
Taxes) shall be sufficient to yield to the Liquidity Provider the full amount
which would have been received by it had no such withholding or deduction been
made. Within 30 days after the date of each payment hereunder, the Borrower
shall furnish to the Liquidity Provider the original or a certified copy of (or
other documentary evidence of) the payment of the Non-Excluded Taxes applicable
to such payment. The Liquidity Provider agrees to use reasonable efforts
(consistent with applicable legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if making such change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of the Liquidity Provider, be
otherwise materially disadvantageous (as determined by the Liquidity Provider)
to the Liquidity Provider or require the Liquidity Provider to incur any cost or
expenses for which it is not indemnified by the Borrower. The Liquidity Provider
shall deliver to the Borrower such certificates and documents as may be
reasonably requested by the Borrower and required by applicable law and as may
be legally delivered by the Liquidity Provider to establish that payments
hereunder are exempt from (or entitled to a reduced rate of) withholding Tax.
(b) All payments (including, without limitation, Advances)
made by the Liquidity Provider under this Agreement shall be made free and clear
of, and without reduction for or on account of, any Taxes. If any Taxes are
required to be withheld or deducted from any amounts payable to the Borrower
under this Agreement, the Liquidity Provider shall (i) within the time
prescribed therefor by applicable law pay to the appropriate governmental or
taxing authority the full amount of any such Taxes (and any additional Taxes in
respect of the additional amounts payable under clause (ii) hereof) and make
such reports or returns in connection therewith at the time or times and in the
manner prescribed by applicable law, and (ii) pay to the Borrower an additional
amount which (after deduction of all such Taxes) shall be sufficient to yield to
the Borrower the full amount which would have been received by it had no such
withholding or deduction been made. Within 30 days after the date of each
payment hereunder,
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
the Liquidity Provider shall furnish to the Borrower the original or a certified
copy of (or other documentary evidence of) the payment of the Taxes applicable
to such payment.
(c) If any exemption from, or reduction in the rate of, any
Taxes is reasonably available to the Borrower to establish that payments under
this Agreement are exempt from (or entitled to a reduced rate of) tax, the
Borrower shall deliver to the Liquidity Provider such form or forms and such
other evidence of the eligibility of the Borrower for such exemption or
reduction as the Liquidity Provider may reasonably identify to the Borrower as
being required as a condition to exemption from, or reduction in the rate of,
any Taxes.
Section 3.04 Payments. The Borrower shall make or cause to be made each
payment to the Liquidity Provider under this Agreement so as to cause the same
to be received by the Liquidity Provider not later than 1:00 P.M. (New York City
time) on the day when due. The Borrower shall make all such payments in lawful
money of the United States of America, to the Liquidity Provider in immediately
available funds, by wire transfer to The Chase Manhattan Bank, New York, ABA No.
000000000, Account Name: Westdeutsche Landesbank Girozentrale, New York Branch,
Account No. 0000-00-0000, ref: GSF/Transportation, America West Airlines
2001-1C, Attention: Xxxx Xxxxx.
Section 3.05 Computations. All computations of interest based on the
Base Rate shall be made on the basis of a year of 365 or 366 days, as the case
may be, and all computations of interest based on the LIBOR shall be made on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest is payable.
Section 3.06 Payment on Non-Business Days. Whenever any payment to be
made hereunder shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day and no additional
interest shall be due as a result (and if so made, shall be deemed to have been
made when due). If any payment in respect of interest on an Advance is so
deferred to the next succeeding Business Day, such deferral shall not delay the
commencement of the next Interest Period for such Advance (if such Advance is a
LIBOR Advance) or reduce the number of days for which interest shall be payable
on such Advance on the next interest payment date for such Advance.
Section 3.07 Interest.
(a) Subject to Section 2.09, the Borrower shall pay, or shall
cause to be paid, without duplication, interest on (i) the unpaid principal
amount of each Advance from and including the date of such Advance (or, in the
case of an Applied Provider Advance, from and including the date on which the
amount thereof was withdrawn from the Class C Cash Collateral Account to pay
interest on the Class C Certificates) to but excluding the date such principal
amount shall be paid in full (or, in the case of an Applied Provider Advance,
the date on which the Class C Cash Collateral Account is fully replenished in
respect of such Advance) and (ii) any other amount due hereunder (whether fees,
commissions, expenses or other amounts or to the extent permitted by applicable
law, installments of interest on Advances or any such other amount) which is not
paid when due (whether at stated maturity, by acceleration or otherwise) from
and including the due date thereof to but excluding the date such amount is paid
in full, in
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
each such case, at a fluctuating interest rate per annum for each day equal to
the Applicable Liquidity Rate (as defined below) for such Advance or such other
amount as in effect for such day, but in no event at a rate per annum greater
than the maximum rate permitted by applicable law; provided, however, that, if
at any time the otherwise applicable interest rate as set forth in this Section
3.07 shall exceed the maximum rate permitted by applicable law, then any
subsequent reduction in such interest rate shall not reduce the rate of interest
payable pursuant to this Section 3.07 below the maximum rate permitted by
applicable law until the total amount of interest accrued equals the amount of
interest that would have accrued if such otherwise applicable interest rate as
set forth in this Section 3.07 had at all times been in effect. Nothing
contained in this Section 3.07 shall require the Borrower to pay any amount
under this Section 3.07 other than to the extent the Borrower shall have funds
available therefor.
(b) Each Advance shall be either a Base Rate Advance or a
LIBOR Advance as provided in this Section or Section 3.10. Each such Advance
shall be a Base Rate Advance for the period from the date of its borrowing to
(but excluding) the third Business Day following the Liquidity Provider's
receipt of the Notice of Borrowing for such Advance. Thereafter, such Advance
shall be a LIBOR Advance; provided, however, that the Borrower (at the direction
of the Controlling Party, so long as the Liquidity Provider is not the
Controlling Party) may (x) convert the Final Advance into a Base Rate Advance on
the last day of an Interest Period for such Advance by giving the Liquidity
Provider no less than four Business Days' prior written notice of such election
or (y) elect to maintain the Final Advance as a Base Rate Advance by not
requesting a conversion of the Final Advance to a LIBOR Advance under Clause (5)
of the applicable Notice of Borrowing (or, if such Final Advance is deemed to
have been made, without delivery of a Notice of Borrowing pursuant to Section
2.06, by requesting, prior to 11:00 A.M. (New York time) on the first Business
Day following the Borrower's receipt of the applicable Termination Notice, that
such Final Advance not be converted from a Base Rate Advance to a LIBOR
Advance).
(c) Each LIBOR Advance shall bear interest during each
Interest Period at a rate per annum equal to LIBOR for such Interest Period plus
the Applicable Margin for such LIBOR Advance, payable in arrears on the last day
of such Interest Period and, in the event of the payment of principal of such
LIBOR Advance on a day other than such last day, on the date of such payment (to
the extent of interest accrued on the amount of principal repaid).
(d) Each Base Rate Advance shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin for such Base Rate
Advance, payable in arrears on each Regular Distribution Date and, in the event
of the payment of principal of such Base Rate Advance on a day other than a
Regular Distribution Date, on the date of such payment (to the extent of
interest accrued on the amount of principal repaid).
(e) Each amount not paid when due hereunder (whether fees,
commissions, expenses or other amounts or, to the extent permitted by applicable
law, installments of interest on Advances but excluding Advances) shall bear
interest at a rate per annum equal to the Base Rate plus 2.50% per annum.
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
(f) Each change in the Base Rate shall become effective
immediately. The rates of interest specified in this Section 3.07 with respect
to any Advance or other amount shall be referred to as the "Applicable Liquidity
Rate."
Section 3.08 Replacement of Borrower. Subject to Section 5.02, from
time to time and subject to the successor Borrower's meeting the eligibility
requirements set forth in Section 6.9 of the Intercreditor Agreement applicable
to the Subordination Agent, upon the effective date and time specified in a
written and completed Notice of Replacement Subordination Agent in substantially
the form of Annex VI (a "Notice of Replacement Subordination Agent") delivered
to the Liquidity Provider by the then Borrower, the successor Borrower
designated therein shall be substituted for as the Borrower for all purposes
hereunder.
Section 3.09 Funding Loss Indemnification. The Borrower shall pay to
the Liquidity Provider, upon the request of the Liquidity Provider, such amount
or amounts as shall be sufficient (in the reasonable opinion of the Liquidity
Provider) to compensate it for any loss, cost, or expense incurred by reason of
the liquidation or redeployment of deposits or other funds acquired by the
Liquidity Provider to fund or maintain any LIBOR Advance (but excluding loss of
anticipated profits) incurred as a result of:
(1) Any repayment of a LIBOR Advance on a date other than the
last day of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance on
the date for borrowing specified in the relevant notice under Section
2.02.
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.
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied or waived:
(a) The Liquidity Provider shall have received on or before
the Closing Date each of the following, and in the case of each document
delivered pursuant to paragraphs (i), (ii) and (iii), in form and substance
satisfactory to the Liquidity Provider:
(i) This Agreement duly executed on behalf of the
Borrower;
(ii) The Intercreditor Agreement duly executed on
behalf of each of the parties thereto (other than the Liquidity
Provider);
(iii) Fully executed copies of each of the Operative
Agreements executed and delivered on or before the Closing Date (other
than this Agreement and the Intercreditor Agreement);
(iv) A copy of the Offering Memorandum and specimen
copies of the Class C Certificates;
(v) An executed copy of each opinion, document,
instrument and certificate delivered on or before the Closing Date
pursuant to the Class C Trust Agreement, the Intercreditor Agreement,
the Note Purchase Agreement and the other Operative Agreements entered
into on or prior to the date hereof (together with, in the case of each
such opinion, other than the opinion of counsel for the Underwriters,
either addressed to the Liquidity Provider or accompanied by a letter
from the counsel rendering such opinion to the effect that the
Liquidity Provider is entitled to rely on such opinion as of its date
as if it were addressed to the Liquidity Provider);
(vi) Evidence that there shall have been made and
shall be in full force and effect, all filings, recordings and/or
registrations, and there shall have been given or taken any notice or
other similar action as may be reasonably necessary or, to the extent
reasonably requested by the Liquidity Provider, reasonably advisable,
in order to establish, perfect, protect and preserve the right, title
and interest, remedies, powers, privileges, liens and security
interests of, or for the benefit of, the Trustee and the Liquidity
Provider created by the Operative Agreements executed and delivered on
or before the Closing Date;
(vii) An agreement from America West, pursuant to
which America West agrees to provide copies of quarterly financial
statements and audited annual financial statements to the Liquidity
Provider (which obligations may be satisfied by the furnishing of
America West's Form 10Q and 10K), in each case, only to the extent that
America West is obligated to provide such information pursuant to
Section 8.2.1 of the
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
Leases (related to Leased Aircraft) or to Section 4.08 of the
Indentures (related to Owned Aircraft) to the parties thereto; and
(viii) Such other documents, instruments, opinions
and approvals as the Liquidity Provider shall have reasonably
requested.
(b) The following statements shall be true on and as of the
Effective Date:
(i) The representations and warranties in the Note
Purchase Agreement and each of the Participation Agreements entered
into on or prior to the date hereof are true and correct on and as of
the Effective Date as though made on and as of the Effective Date;
(ii) No event has occurred and is continuing, or
would result from the entering into of this Agreement or the making of
any Advance, which constitutes a Liquidity Event of Default; and
(iii) There has been no material adverse change in
the financial condition or results of operations of America West and
its subsidiaries taken as a whole since December 31, 2000.
(c) The Liquidity Provider shall have received payment in full
of all fees and other sums required to be paid to or for the account of the
Liquidity Provider on or prior to the Effective Date.
(d) All conditions precedent to the issuance of the
Certificates under the Trust Agreements shall have been satisfied or waived, all
conditions precedent to the effectiveness of the other Liquidity Facility shall
have been satisfied or waived, and all conditions precedent to the purchase of
the Certificates by the Initial Purchasers under the Purchase Agreement shall
have been satisfied (unless any of such conditions precedent shall have been
waived by the Initial Purchasers).
(e) The Borrower shall have received a certificate, dated the
date hereof, signed by a duly authorized representative of the Liquidity
Provider, certifying that all conditions precedent to the effectiveness of
Section 2.01 have been satisfied or waived.
Section 4.02 Conditions Precedent to Borrowing. The obligation of the
Liquidity Provider to make an Advance on the occasion of each Borrowing shall be
subject to the conditions precedent that the Effective Date shall have occurred
and, prior to the date of such Borrowing, the Borrower shall have delivered a
Notice of Borrowing which conforms to the terms and conditions of this Agreement
and has been completed as may be required by the relevant form of the Notice of
Borrowing for the type of Advances requested.
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
ARTICLE 5
COVENANTS
Section 5.01 Affirmative Covenants of the Borrower. So long as any
Advance shall remain unpaid or the Liquidity Provider shall have any Maximum
Commitment hereunder or the Borrower shall have any obligation to pay any amount
to the Liquidity Provider hereunder, the Borrower shall, unless the Liquidity
Provider shall otherwise consent in writing:
(a) Performance of Agreements. Punctually pay or cause to be
paid all amounts payable by it under this Agreement and the other Operative
Agreements and observe and perform in all material respects the conditions,
covenants and requirements applicable to it contained in this Agreement and the
other Operative Agreements.
(b) Reporting Requirements. Furnish to the Liquidity Provider
with reasonable promptness, such other information and data with respect to the
transactions contemplated by the Operative Agreements as from time to time may
be reasonably requested by the Liquidity Provider; and permit the Liquidity
Provider, upon reasonable notice, to inspect the Borrower's books and records
with respect to such transactions and to meet with officers and employees of the
Borrower to discuss such transactions.
(c) Certain Operative Agreements. Furnish to the Liquidity
Provider with reasonable promptness any Operative Agreement entered into after
the date hereof.
Section 5.02 Negative Covenants of the Borrower. So long as any Advance
shall remain unpaid or the Liquidity Provider shall have any Maximum Commitment
hereunder or the Borrower shall have any obligation to pay any amount to the
Liquidity Provider hereunder, the Borrower shall not appoint or permit or suffer
to be appointed any successor Borrower without the written consent of the
Liquidity Provider, which consent shall not be unreasonably withheld or delayed.
ARTICLE 6
LIQUIDITY EVENTS OF DEFAULT
Section 6.01 Liquidity Events of Default. If (a) any Liquidity Event of
Default has occurred and is continuing and (b) there is a Performing Note
Deficiency, the Liquidity Provider may, in its discretion, deliver to the
Borrower a Termination Notice, the effect of which shall be to cause (i) the
obligation of the Liquidity Provider to make Advances hereunder to expire on the
fifth Business Day after the date on which such Termination Notice is received
by the Borrower, (ii) the Borrower to promptly request, and the Liquidity
Provider to promptly make, a Final Advance in accordance with Section 2.02(d)
and Section 3.6(i) of the Intercreditor Agreement, (iii) all other outstanding
Advances to be automatically converted into Final Advances for purposes of
determining the Applicable Liquidity Rate for interest payable thereon, and (iv)
subject to Sections 2.07 and 2.09, all Advances (including, without limitation,
any Provider Advance and Applied Provider Advance), any accrued interest thereon
and any other amounts outstanding hereunder to become immediately due and
payable to the Liquidity Provider.
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
ARTICLE 7
MISCELLANEOUS
Section 7.01 Amendments, Etc. No amendment or waiver of any provision
of this Agreement, nor consent to any departure by the Borrower therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Liquidity Provider, and, in the case of an amendment, the Borrower, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
Section 7.02 Notices, Etc. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including sent by telecopier):
Borrower: Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust
Administration
Telephone: 000-000-0000
Telecopy: 000-000-0000
Liquidity Provider: Westdeutsche Landesbank Girozentrale
New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Business/Credit Contact
Attention: Transportation Finance
Global Structured Finance/Americas
Telephone: 000-000-0000
Telecopy: 000-000-0000
Operations Contact
Attention: Xxxxxx Xxxxx
Loan Administration
Telephone: 000-000-0000
Telecopy: 000-000-0000
or, as to each of the foregoing, at such other address as shall be designated by
such Person in a Written Notice to the others. All such notices and
communications shall be effective (i) if given by telecopier, when transmitted
to the telecopier number specified above with receipt confirmed, (ii) if given
by mail, when deposited in the mails addressed as specified above, and (iii) if
given by other means, when delivered at the address specified above, except that
Written Notices to the Liquidity Provider pursuant to the provisions of Articles
II and III shall not be effective until
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
received by the Liquidity Provider, subject to the last sentence of Section
2.02(e). A copy of all notices delivered hereunder to either party shall in
addition be delivered to each of the parties to the Participation Agreements at
their respective addresses set forth therein.
Section 7.03 No Waiver; Remedies. No failure on the part of the
Liquidity Provider to exercise, and no delay in exercising, any right under this
Agreement shall operate as a waiver thereof; nor shall any single or partial
exercise of any right under this Agreement preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 7.04 Further Assurances. The Borrower agrees to do such further
acts and things and to execute and deliver to the Liquidity Provider such
additional assignments, agreements, powers and instruments as the Liquidity
Provider may reasonably require or deem advisable to carry into effect the
purposes of this Agreement and the other Operative Agreements or to better
assure and confirm unto the Liquidity Provider its rights, powers and remedies
hereunder and under the other Operative Agreements.
Section 7.05 Indemnification; Survival of Certain Provisions. The
Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Section 7.1 or 9.1, as the case may be, of any Participation
Agreement and Section 6(c) of the Note Purchase Agreement. In addition, the
Borrower agrees to indemnify, protect, defend and hold harmless the Liquidity
Provider from, against and in respect of, and shall pay on demand, all Expenses
of any kind or nature whatsoever (other than any Expenses of the nature
described in Section 3.01, 3.02 or 7.07 hereof or in the Fee Letter (regardless
of whether indemnified against pursuant to said Sections or in such Fee Letter))
that may be imposed, incurred by or asserted against any Liquidity Indemnitee,
in any way relating to, resulting from, or arising out of or in connection with
any action, suit or proceeding by any third party against such Liquidity
Indemnitee and relating to this Agreement, the Intercreditor Agreement, the Fee
Letter or any Participation Agreement; provided, however, that the Borrower
shall not be required to indemnify, protect, defend and hold harmless any
Liquidity Indemnitee in respect of any Expense of such Liquidity Indemnitee to
the extent such Expense is (i) attributable to the gross negligence or willful
misconduct of such Liquidity Indemnitee or any other Liquidity Indemnitee, (ii)
ordinary and usual operating overhead expense or (iii) attributable to the
failure by such Liquidity Indemnitee or any other Liquidity Indemnitee to
perform or observe any agreement, covenant or condition on its part to be
performed or observed in this Agreement, the Intercreditor Agreement, the Fee
Letter or any other Operative Agreement to which it is a party. The indemnities
contained in Section 6(c) of the Note Purchase Agreement and Section 7.1 or 9.1,
as the case may be, of any Participation Agreement and the provisions of
Sections 3.01, 3.02, 3.03, 3.09, 7.05 and 7.07 shall survive the termination of
this Agreement.
Section 7.06 Liability of the Liquidity Provider.
(a) Neither the Liquidity Provider nor any of its officers,
directors, employees or affiliates shall be liable or responsible for: (i) the
use which may be made of the Advances or any acts or omissions of the Borrower
or any beneficiary or transferee in connection therewith; (ii) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
forged; or (iii) the making of Advances by the Liquidity Provider against
delivery of a Notice of Borrowing and other documents which do not comply with
the terms hereof; provided, however, that the Borrower shall have a claim
against the Liquidity Provider, and the Liquidity Provider shall be liable to
the Borrower, to the extent of any damages suffered by the Borrower which were
the result of (A) the Liquidity Provider's willful misconduct or negligence in
determining whether documents presented hereunder comply with the terms hereof,
or (B) any breach by the Liquidity Provider of any of the terms of this
Agreement, including, but not limited to, the Liquidity Provider's failure to
make lawful payment hereunder after the delivery to it by the Borrower of a
Notice of Borrowing complying with the terms and conditions hereof.
(b) Neither the Liquidity Provider nor any of its officers,
employees, directors or Affiliates shall be liable or responsible in any respect
for (i) any error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in connection with this
Agreement or any Notice of Borrowing delivered hereunder, or (ii) any action,
inaction or omission which may be taken by it in good faith, absent willful
misconduct or negligence (in which event the extent of the Liquidity Provider's
potential liability to the Borrower shall be limited as set forth in the
preceding paragraph), in connection with this Agreement or any Notice of
Borrowing.
Section 7.07 Costs, Expenses and Taxes. The Borrower agrees to pay, or
cause to be paid (A) on the Effective Date and on such later date or dates on
which the Liquidity Provider shall make demand, all reasonable out-of-pocket
costs and expenses of the Liquidity Provider in connection with the preparation,
negotiation, execution, delivery, filing and recording of this Agreement, any
other Operative Agreement and any other documents which may be delivered in
connection with this Agreement, including, without limitation, the reasonable
fees and expenses of outside counsel for the Liquidity Provider and (B) on
demand, all reasonable costs and expenses of the Liquidity Provider (including
reasonable counsel fees and expenses) in connection with (i) the enforcement of
this Agreement or any other Operative Agreement, (ii) the modification or
amendment of, or supplement to, this Agreement or any other Operative Agreement
or such other documents which may be delivered in connection herewith or
therewith (whether or not the same shall become effective) or (iii) any action
or proceeding relating to any order, injunction, or other process or decree
restraining or seeking to restrain the Liquidity Provider from paying any amount
under this Agreement, the Intercreditor Agreement or any other Operative
Agreement or otherwise affecting the application of funds in the Class C Cash
Collateral Account. In addition, the Borrower shall pay any and all recording,
stamp and other similar taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing and recording of this Agreement
any other Operative Agreement and such other documents, and agrees to save the
Liquidity Provider harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes
or fees.
Section 7.08 Binding Effect; Participations.
(a) This Agreement shall be binding upon and inure to the
benefit of the Borrower and the Liquidity Provider and their respective
successors and assigns, except that neither the Liquidity Provider (except as
otherwise provided in this Section 7.08) nor the Borrower (except as
contemplated by Section 3.08) shall have the right to assign its rights or
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
obligations hereunder or any interest herein without the prior written consent
of the other party, subject to the requirements of Section 7.08(b). The
Liquidity Provider may grant participations herein or in any of its rights
hereunder and under the other Operative Agreements to such Persons (other than
America West or any of its Affiliates) as the Liquidity Provider may in its sole
discretion select, subject to the requirements of Section 7.08(b). No such
participation by the Liquidity Provider, however, shall relieve the Liquidity
Provider of its obligations hereunder. In connection with any participation or
any proposed participation, the Liquidity Provider may disclose to the
participant or the proposed participant any information that the Borrower is
required to deliver or to disclose to the Liquidity Provider pursuant to this
Agreement. The Borrower acknowledges and agrees that the Liquidity Provider's
source of funds may derive in part from its participants. Accordingly,
references in this Agreement and the other Operative Agreements to
determinations, reserve and capital adequacy requirements, increased costs,
reduced receipts and the like as they pertain to the Liquidity Provider shall be
deemed also to include those of each of its participants that are banks
(subject, in each case, to the maximum amount that would have been incurred by
or attributable to the Liquidity Provider directly if the Liquidity Provider,
rather than the participant, had held the interest participated other than a
result of a change in law following the date of any participation).
(b) If, pursuant to Section 7.08(a) above, the Liquidity
Provider sells any participation in this Agreement to any bank or other entity
(each, a "Participating Institution"), then, concurrently with the effectiveness
of such participation, the Participating Institution shall (i) represent to the
Liquidity Provider (for the benefit of the Liquidity Provider and the Borrower)
either (A) that it is incorporated under the laws of the United States or a
state thereof or (B) that under applicable law and treaties, no taxes shall be
required to be withheld by the Borrower or the Liquidity Provider with respect
to any payments to be made to such Participating Institution in respect of this
Agreement, (ii) furnish to the Liquidity Provider and the Borrower either (x) a
statement that it is incorporated under the laws of the United States or a state
thereof or (y) if it is not so incorporated, two copies of a properly completed
United States Internal Revenue Service Form W-8ECI or Form W-8BEN, as
appropriate, or other applicable form, certificate or document prescribed by the
Internal Revenue Service certifying, in each case, such Participating
Institution's entitlement to a complete exemption from United States federal
withholding tax in respect to any and all payments to be made hereunder, and
(iii) agree (for the benefit of the Liquidity Provider and the Borrower) to
provide the Liquidity Provider and the Borrower a new Form W-8ECI or Form
W-8BEN, as appropriate, (A) on or before the date that any such form expires or
becomes obsolete or (B) after the occurrence of any event requiring a change in
the most recent form previously delivered by it and prior to the immediately
following due date of any payment by the Borrower hereunder, certifying in the
case of a Form W-8BEN or Form W-8ECI that such Participating Institution is
entitled to a complete exemption from United States federal withholding tax on
payments under this Agreement. Unless the Borrower has received forms or other
documents reasonably satisfactory to it (and required by applicable law) from
the Participating Institution indicating that payments hereunder are not subject
to United States federal withholding tax, the Borrower shall withhold taxes as
required by law from such payments at the applicable statutory rate without any
obligation to make additional payments under Section 3.03.
(c) Notwithstanding the other provisions of this Section 7.08,
the Liquidity Provider may assign and pledge all or any portion of the Advances
owing to it to any Federal
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
Reserve Bank or the United States Treasury as collateral security pursuant to
Regulation A of the Board of Governors of the Federal Reserve System and any
Operating Circular issued by such Federal Reserve Bank, provided that any
payment in respect of such assigned Advances made by the Borrower to the
Liquidity Provider in accordance with the terms of this Agreement shall satisfy
the Borrower's obligations hereunder in respect of such assigned Advance to the
extent of such payment. No such assignment shall release the Liquidity Provider
from its obligations hereunder.
Section 7.09 Severability. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
Section 7.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF (OTHER THAN SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW)) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 7.11 Submission to Jurisdiction; Waiver of Jury Trial; Waiver
of Immunity.
(a) Each of the parties hereto hereby irrevocably and
unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement or any other Operative
Agreement, or for recognition and enforcement of any judgment in
respect hereof or thereof, to the non-exclusive general jurisdiction of
the courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and the appellate courts
from any thereof;
(ii) consents that any such action or proceeding may
be brought in such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such
action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of
mail), postage prepaid, to each party hereto at its address set forth
in Section 7.02, or at such other address of which the Liquidity
Provider shall have been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the
right to effect service of process in any other manner permitted by law
or shall limit the right to xxx in any other jurisdiction.
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE
TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS
BEING ESTABLISHED, including, without limitation, contract claims, tort claims,
breach of duty claims and all other common law and statutory claims. The
Borrower and the Liquidity Provider each warrant and represent that it has
reviewed this waiver with its legal counsel, and that it knowingly and
voluntarily waives its jury trial rights following consultation with such legal
counsel. THIS WAIVER IS IRREVOCABLE, AND CANNOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
(c) The Liquidity Provider hereby waives any immunity it may
have from the jurisdiction of the courts of the United States or of any State
and waives any immunity any of its properties located in the United States may
have from attachment or execution upon a judgment entered by any such court
under the United States Foreign Sovereign Immunities Act of 1976 or any similar
successor legislation.
Section 7.12 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto on separate
counterparts, each of which counterpart, when so executed and delivered, shall
be deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same Agreement.
Section 7.13 Entirety. This Agreement and the other Operative
Agreements constitute the entire agreement of the parties hereto with respect to
the subject matter hereof and supersedes all prior understandings and agreements
of such parties.
Section 7.14 Headings. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
Section 7.15 LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES. EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE LIQUIDITY
PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO DELIVER
NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL BE
UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE
STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
Section 7.16 Transfer. The Liquidity Provider hereby acknowledges and
consents to the Transfer contemplated by the Assignment and Assumption
Agreement.
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first set forth above.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent and Trustee, as Borrower
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Financial Services Officer
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
as Liquidity Provider
By: /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Associate Director
31
[REVOLVING CREDIT AGREEMENT (2001-1C)]
Annex I to
Revolving Credit Agreement
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "Borrower"), hereby certifies to Westdeutsche Landesbank
Girozentrale (the "Liquidity Provider"), with reference to the Revolving Credit
Agreement (2001-1C), dated as of May __, 2001, between the Borrower and the
Liquidity Provider (the "Liquidity Agreement"; the terms defined therein and not
otherwise defined herein being used herein as therein defined or referenced),
that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for
the making of an Interest Advance by the Liquidity Provider to be used,
subject to clause (3)(v) below, for the payment of interest on the
Class C Certificates which was payable on _____________________ (the
"Distribution Date") in accordance with the terms and provisions of the
Class C Trust Agreement and the Class C Certificates, which Advance is
requested to be made on _______________. The Interest Advance should be
transferred to account __________.
(3) The amount of the Interest Advance requested hereby (i) is
$__________, to be applied in respect of the payment of interest which
was due and payable on the Class C Certificates on such Distribution
Date, (ii) does not include any amount with respect to the payment of
principal of, or premium on, the Class C Certificate, the Class G
Certificates or the Class D Certificates, or interest on the Class G
Certificates or the Class D Certificates, (iii) was computed in
accordance with the provisions of the Class C Certificates, the Class C
Trust Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), (iv) does not exceed the
Maximum Available Commitment on the date hereof, (v) does not include
any amount of interest which was due and payable on the Class C
Certificates on such Distribution Date but which remains unpaid due to
the failure of the Depositary to pay any amount of accrued interest on
the Deposits on such Distribution Date, and (vi) has not been and is
not the subject of a prior or contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower shall apply the same in accordance
with the terms of Section 3.6(b) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, the making of the Interest Advance as requested by this Notice of
Borrowing shall automatically reduce, subject to reinstatement in accordance
with the terms of the Liquidity Agreement, the Maximum Available Commitment by
an amount equal to the amount of the Interest Advance
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
requested to be made hereby as set forth in clause (i) of paragraph (3) of this
Notice of Borrowing and such reduction shall automatically result in
corresponding reductions in the amounts available to be borrowed pursuant to a
subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice
of Borrowing as of the ____ day of ______________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent, as Borrower
By:
Name:
Title:
I-2
33
[REVOLVING CREDIT AGREEMENT (2001-1C)]
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Interest Advance Notice of Borrowing]
I-3
34
[REVOLVING CREDIT AGREEMENT (2001-1C)]
Annex II to
Revolving Credit Agreement
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "Borrower"), hereby certifies to Westdeutsche Landesbank
Girozentrale (the "Liquidity Provider"), with reference to the Revolving Credit
Agreement (2001-1C), dated as of May __, 2001, between the Borrower and the
Liquidity Provider (the "Liquidity Agreement"; the terms defined therein and not
otherwise defined herein being used herein as therein defined or referenced),
that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for
the making of the Non-Extension Advance by the Liquidity Provider to be
used for the funding of the Class C Cash Collateral Account in
accordance with Section 3.6(d) of the Intercreditor Agreement, which
Advance is requested to be made on __________, ____. The Non-Extension
Advance should be transferred to ____________.
(3) The amount of the Non-Extension Advance requested hereby
(i) is $_______________.__, which equals the Maximum Available
Commitment on the date hereof and is to be applied in respect of the
funding of the Class C 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 C Certificates, the Class G Certificates or the Class D
Certificates, or interest on the Class G Certificates or the Class D
Certificates, (iii) was computed in accordance with the provisions of
the Class C Certificates, the Class C Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto
as Schedule I), and (iv) has not been and is not the subject of a prior
or contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the
Class C Cash Collateral Account and apply the same in accordance with
the terms of Section 3.6(d) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Non-Extension Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the obligation
of the Liquidity Provider to make further Advances under the Liquidity
Agreement; and (B) following the making by the Liquidity Provider of the
Non-Extension Advance requested by this Notice of Borrowing, the Borrower shall
not be entitled to request any further Advances under the Liquidity Agreement.
II-1
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice
of Borrowing as of the ____ day of _________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent, as Borrower
By:
Name:
Title:
II-2
36
[REVOLVING CREDIT AGREEMENT (2001-1C)]
SCHEDULE I TO NON-EXTENSION ADVANCE
NOTICE OF BORROWING
[Insert copy of computations in accordance with
Non-Extension Advance Notice of Borrowing]
II-3
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[REVOLVING CREDIT AGREEMENT (2001-1C)]
Annex III to
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "Borrower"), hereby certifies to Westdeutsche Landesbank
Girozentrale (the "Liquidity Provider"), with reference to the Revolving Credit
Agreement (2001-1C) dated as of May __, 2001, between the Borrower and the
Liquidity Provider (the "Liquidity Agreement"; the terms defined therein and not
otherwise defined herein being used herein as therein defined or referenced),
that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for
the making of the Downgrade Advance by the Liquidity Provider to be
used for the funding of the Class C Cash Collateral Account in
accordance with Section 3.6(c) of the Intercreditor Agreement by reason
of the downgrading of the short-term unsecured debt rating of the
Liquidity Provider issued by either Rating Agency below the Threshold
Rating, which Advance is requested to be made on ______________. The
Downgrade Advance should be transferred to __________.
(3) The amount of the Downgrade Advance requested hereby (i)
is $________, which equals the Maximum Available Commitment on the date
hereof and is to be applied in respect of the funding of the Class C
Cash Collateral Account in accordance with Section 3.6(c) of the
Intercreditor Agreement, (ii) does not include any amount with respect
to the payment of principal of, or premium on, the Class C
Certificates, the Class G Certificates, or the Class D Certificates, or
interest on the Class G Certificates or the Class D Certificates, (iii)
was computed in accordance with the provisions of the Class C
Certificates, the Class C Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule
1), and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower shall deposit such amount in the
Class C Cash Collateral Account and apply the same in accordance with
the terms of Section 3.6(c) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
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
III-1
38
[REVOLVING CREDIT AGREEMENT (2001-1C)]
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 _________, _____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent, as Borrower
By:
Name:
Title:
III-2
39
[REVOLVING CREDIT AGREEMENT (2001-1C)]
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Downgrade Advance Notice of Borrowing]
III-3
40
[REVOLVING CREDIT AGREEMENT (2001-1C)]
Annex IV to
Revolving Credit Agreement
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "Borrower"), hereby certifies to Westdeutsche Landesbank
Girozentrale (the "Liquidity Provider"), with reference to the Revolving Credit
Agreement (2001-1C), dated as of May __, 2001, between the Borrower and the
Liquidity Provider (the "Liquidity Agreement"); the terms defined therein and
not otherwise defined herein being used herein as therein defined or
referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for
the making of the Final Advance by the Liquidity Provider to be used
for the funding of the Class C Cash Collateral Account in accordance
with Section 3.6(i) of the Intercreditor Agreement by reason of the
receipt by the Borrower of a Termination Notice from the Liquidity
Provider with respect to the Liquidity Agreement, which Advance is
requested to be made on _______________.
(3) The amount of the Final Advance requested hereby (i) is
$_____________, which equals the Maximum Available Commitment on the
date hereof and is to be applied in respect of the funding of the Class
C Cash Collateral Account in accordance with Section 3.6(i) of the
Intercreditor Agreement, (ii) does not include any amount with respect
to the payment of principal of, or premium on the Class C Certificates,
the Class G Certificates or the Class D Certificates, or interest on
the Class G Certificates or the Class D Certificates, (iii) was
computed in accordance with the provisions of the Class C Certificates,
the Class C Trust Agreement and the Intercreditor Agreement (a copy of
which computation is attached hereto as Schedule I), and (iv) has not
been and is not the subject of a prior or contemporaneous Notice of
Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower shall deposit such amount in the
Class C Cash Collateral Account and apply the same in accordance with
the terms of Section 3.6(i) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
(5) The Borrower hereby requests that the Advance requested
hereby be a Base Rate Advance [and that such Base Rate Advance be
converted into a LIBOR Advance on the third Business Day following your
receipt of this notice.](1)
------------------
(1) Bracketed language may be included at Borrower's option.
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41
[REVOLVING CREDIT AGREEMENT (2001-1C)]
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Final Advance as requested by this Notice of
Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement; and
(B) following the making by the Liquidity Provider of the Final Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice
of Borrowing as of the _____ day of ___________, _____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent, as Borrower
By:
Name:
Title:
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42
[REVOLVING CREDIT AGREEMENT (2001-1C)]
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Final Advance Notice of Borrowing]
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43
[REVOLVING CREDIT AGREEMENT (2001-1C)]
Annex V to
Revolving Credit Agreement
NOTICE OF TERMINATION
[Date]
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Re: Revolving Credit Agreement (2001-1C), dated as of May __, 2001, between
Wilmington Trust Company, as Subordination Agent, as agent and trustee
for the America West Airlines 2001-1C Pass Through Trust, as Borrower,
and Westdeutsche Landesbank Girozentrale, New York Branch (the
"Liquidity Agreement")
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.01 of the Liquidity
Agreement, by reason of the occurrence of a Liquidity Event of Default and the
existence of a Performing Note Deficiency (each as defined therein), we are
giving this notice to you in order to cause (i) our obligations to make Advances
(as defined therein) under such Liquidity Agreement to terminate on the fifth
Business Day after the date on which you receive this notice and (ii) you to
request a Final Advance under the Liquidity Agreement pursuant to Section 3.6(i)
of the Intercreditor Agreement (as defined in the Liquidity Agreement) as a
consequence of your receipt of this notice.
THIS NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR UNDER THE
LIQUIDITY AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY
AGREEMENT SHALL TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU
RECEIVE THIS NOTICE.
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44
[REVOLVING CREDIT AGREEMENT (2001-1C)]
Very truly yours,
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH, as
Liquidity Provider
By:
Name:
Title:
By:
Name:
Title:
cc: Wilmington Trust Company,
as Class C Trustee
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45
[REVOLVING CREDIT AGREEMENT (2001-1C)]
Annex VI to
Revolving Credit Agreement
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Re: Revolving Credit Agreement (2001-1C), dated as of May __, 2001, between
Wilmington Trust Company, as Subordination Agent, as agent and trustee
for the America West Airlines 2001-1C Pass Through Trust, as Borrower,
and Westdeutsche Landesbank Girozentrale (the "Liquidity Agreement")
Ladies and Gentlemen:
For value received, the undersigned hereby irrevocably transfers to:
[Name of Transferee]
[Address of Transferee]
all rights and obligations of the undersigned as Borrower and Subordination
Agent under the Liquidity Agreement referred to above. The transferee has
succeeded the undersigned as Borrower and Subordination Agent under the
Intercreditor Agreement referred to in the first paragraph of the Liquidity
Agreement, pursuant to the terms of Section 8.1 of the Intercreditor Agreement.
By this transfer, all rights of the undersigned as Borrower and
Subordination Agent under the Liquidity Agreement are transferred to the
transferee and the transferee shall hereafter have the sole rights and
obligations as Borrower and Subordination Agent thereunder. The undersigned
shall pay any costs and expenses of such transfer, including, but not limited
to, transfer taxes or governmental charges.
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46
[REVOLVING CREDIT AGREEMENT (2001-1C)]
We ask that this transfer be effective as of ____________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent, as Borrower
By:
Name:
Title:
VI-2
