EXHIBIT 4.5
REVOLVING CREDIT AGREEMENT
(2003-1G)
Dated as of January 30, 2003
between
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Subordination Agent,
as agent and trustee for the trustee of
Delta Air Lines Pass Through Trust 2003-1G,
as Borrower
and
LANDESBANK BADEN-WURTTEMBERG,
as Primary Liquidity Provider
Delta Air Lines Pass Through Trust 2003-1G
Delta Air Lines
Pass Through Certificates,
Series 2003-1G
TABLE OF CONTENTS
Page
ARTICLE i
DEFINITIONS
Section 1.01. Definitions.................................................................... 1
ARTICLE ii
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances................................................................... 8
Section 2.02. Making of Advances............................................................. 8
Section 2.03. Fees........................................................................... 10
Section 2.04. Reduction or Termination of the Maximum Commitment............................. 10
Section 2.05. Repayments of Interest Advances or the Final Advance........................... 11
Section 2.06. Repayments of Provider Advances................................................ 11
Section 2.07. Payments to the Primary Liquidity Provider Under the Intercreditor Agreement... 12
Section 2.08. Book Entries................................................................... 12
Section 2.09. Payments from Available Funds Only............................................. 13
ARTICLE iii
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs................................................................ 13
Section 3.02. [Intentionally omitted.]....................................................... 14
Section 3.03. Withholding Taxes.............................................................. 14
Section 3.04. Payments....................................................................... 15
Section 3.05. Computations................................................................... 16
Section 3.06. Payment on Non-Business Days................................................... 16
Section 3.07. Interest....................................................................... 16
Section 3.08. Replacement of Borrower........................................................ 17
Section 3.09. Funding Loss Indemnification................................................... 17
Section 3.10. Illegality..................................................................... 18
ARTICLE iv
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01.......................... 18
Section 4.02. Conditions Precedent to Borrowing.............................................. 20
ARTICLE v
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower.......................................... 20
i
Section 5.02. Negative Covenants of the Borrower............................................. 20
ARTICLE vi
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default.................................................... 21
ARTICLE vii
MISCELLANEOUS
Section 7.01. No Oral Modifications or Continuing Waivers.................................... 21
Section 7.02. Notices........................................................................ 21
Section 7.03. No Waiver; Remedies............................................................ 22
Section 7.04. Further Assurances............................................................. 22
Section 7.05. Indemnification; Survival of Certain Provisions................................ 23
Section 7.06. Liability of the Primary Liquidity Provider.................................... 23
Section 7.07. Certain Costs and Expenses..................................................... 24
Section 7.08. Binding Effect; Participations................................................. 24
Section 7.09. Severability................................................................... 25
Section 7.10. Governing Law.................................................................. 25
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity........... 25
Section 7.12. Counterparts................................................................... 26
Section 7.13. Entirety....................................................................... 26
Section 7.14. Headings....................................................................... 26
Section 7.15. Primary Liquidity Provider's Obligation to Make Advances....................... 26
Annex I - Interest Advance Notice of Borrowing
Annex II - Downgrade Advance Notice of Borrowing
Annex III - Final Advance Notice of Borrowing
Annex IV - Notice of Termination
Annex V - Notice of Replacement Subordination Agent
ii
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT, dated as of January 30, 2003, is made
by and between U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity but solely as Subordination Agent
(such term and other capitalized terms used herein without definition being
defined as provided in Article I) under the Intercreditor Agreement (as defined
below), as agent and trustee for the Class G Trustee (in such capacity, together
with its successors in such capacity, the "BORROWER"), and LANDESBANK
BADEN-WURTTEMBERG, a bank established in Germany as a public law institution
with legal capacity (Rechtsfahige Anstalt des Offentlichen Rechts) (the "PRIMARY
LIQUIDITY PROVIDER").
W I T N E S S E T H:
WHEREAS, pursuant to the Class G Trust Agreement, the Class G Trust is
issuing the Class G Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a
portion of the interest on the Class G Certificates in accordance with their
terms, has requested the Primary Liquidity Provider to enter into this
Agreement, providing in part for the Borrower to request in specified
circumstances that Advances be made hereunder;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. (a) The definitions stated herein apply
equally to both the singular and the plural forms of the terms defined.
(b) All references in this Agreement to designated "Articles",
"Sections", "Annexes" and other subdivisions are to the designated Article,
Section, Annex or other subdivision of this Agreement, unless otherwise
specifically stated.
(c) 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, Annex or other subdivision.
(d) Unless the context otherwise requires, whenever the words
"including", "include" or "includes" are used herein, it shall be deemed to be
followed by the phrase "without limitation".
(e) For the purposes of this Agreement, unless the context
otherwise requires, the following capitalized terms shall have the following
meanings:
"ADVANCE" means an Interest Advance, a Final Advance, a
Provider Advance, an Applied Provider Advance or an Unpaid Advance, as
the case may be.
"AGREEMENT" means this Agreement, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
"APPLICABLE LIQUIDITY RATE" has the meaning specified in
Section 3.07(g).
"APPLICABLE MARGIN" means with respect to any Unpaid Advance
or Applied Provider Advance, 1.70% per annum.
"APPLIED DOWNGRADE ADVANCE" has the meaning specified in
Section 2.06(a).
"APPLIED PROVIDER ADVANCE" means an Applied Downgrade Advance.
"BASE RATE" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for each day in the period for
which the Base Rate is to be determined (or, if such day is not a
Business Day, for the preceding Business Day) by the Federal Reserve
Bank of New York, or if such rate is not so published for any day that
is a Business Day, the average of the quotations for such day for such
transactions received by the Primary Liquidity Provider from JPMorgan
Chase Bank, Citibank, N.A. and Bank of America plus one-quarter of one
percent (0.25%) per annum.
"BASE RATE ADVANCE" means an Advance that bears interest at a
rate based upon the Base Rate.
"BORROWER" has the meaning specified in the introductory
paragraph to this Agreement.
"BORROWING" means the making of Advances requested by delivery
of a Notice of Borrowing.
"BUSINESS DAY" means any day other than a Saturday, a Sunday
or a day on which commercial banks are required or authorized to close
in New York, New York, Atlanta, Georgia, or, so long as any Class G
Certificate is outstanding, the city and state in which the Class G
Trustee, the Borrower or any related Loan Trustee maintains its
Corporate Trust Office or receives or disburses funds.
"COVERED TAXES" means any Taxes imposed by the United States
or any political subdivision or taxing authority thereof or therein
required by law to be deducted or withheld from any amounts payable to
the Primary Liquidity Provider under this Agreement other than (i) any
Tax on, based on or measured by net income, franchises or conduct of
business, (ii) any Tax imposed, levied, withheld or assessed as a
result of any connection between the Primary Liquidity Provider and the
United States or such political subdivision or taxing authority, other
than a connection arising solely from the
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Primary Liquidity Provider's having executed, delivered, performed its
obligations or received a payment under, or enforced, any Operative
Agreement, (iii) any Tax attributable to the inaccuracy in or breach by
the Primary Liquidity Provider of any of its representations,
warranties or covenants contained in any Operative Agreement to which
it is a party or the inaccuracy of any form or document furnished by it
pursuant thereto, (iv) any withholding Taxes imposed by the United
States except to the extent such withholding Taxes would not have been
required to be deducted or withheld from payments hereunder but for a
change after the date hereof (or in the case of a successor Primary
Liquidity Provider (including a transferee of an Advance) after the
date on which such successor Primary Liquidity Provider obtains its
interest) in applicable law (excluding from "change in applicable law"
for this purpose, a change in an applicable treaty or other change in
law affecting the applicability of a treaty other than the applicable
income tax treaty between the United States of America and the Federal
Republic of Germany ("German Treaty") (except an addition to, or change
in any "anti-treaty shopping", "limitation of benefits" or similar
provision in such German Treaty)), (v) any withholding Taxes imposed by
the United States which are imposed or increased as a result of the
Primary Liquidity Provider failing to deliver to the Borrower any
certificate or document (which certificate or document in the good
faith judgment of the Primary Liquidity Provider, it is legally
entitled to provide) 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, or (vi) any change in
the Lending Office without the prior written consent of Delta (such
consent not to be unreasonably withheld).
"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 Primary Liquidity Provider
contemplated by Section 4.01(f) shall be conclusive evidence that the
Effective Date has occurred.
"EXPENSES" means liabilities, losses, damages, costs and
expenses (including, without limitation, reasonable fees and
disbursements of legal counsel), provided that Expenses shall not
include any Taxes other than sales, use and value added taxes imposed
on fees and expenses payable pursuant to Section 7.07.
"EXPIRY DATE" means August 10, 2009.
"FINAL ADVANCE" means an Advance made pursuant to Section
2.02(d).
"INCREASED COST" has the meaning specified in Section 3.01.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement,
dated as of the date hereof, among the Trustees, the Primary Liquidity
Provider, the Above-Cap Liquidity Provider, the Policy Provider and the
Subordination Agent, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
"INTEREST ADVANCE" means an Advance made pursuant to Section
2.02(a).
3
"INTEREST PERIOD" means, with respect to any LIBOR Advance,
each of the following periods:
(i) the period beginning on either (A) the third
London/Stuttgart Business Day following the Primary Liquidity
Provider's receipt of the Notice of Borrowing for such LIBOR Advance or
(B) the date of the withdrawal of funds from the Primary Cash
Collateral Account for the purpose of paying interest on the Class G
Certificates as contemplated by Section 2.06(a) hereof and, in each
case, ending on the next Regular Distribution Date; and
(ii) each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending on the next
Regular Distribution Date;
provided, however, that if (x) the Final Advance shall have been made
pursuant to Section 2.02(d) or (y)(I) any outstanding Advance or (II)
an Unapplied Provider Advance shall have been converted into the Final
Advance pursuant to Section 6.01, then the Interest Periods shall be
successive periods of one month beginning on the third London/Stuttgart
Business Day following the Primary Liquidity Provider's receipt of the
Notice of Borrowing for such Final Advance (in the case of clause (x)
above), the Regular Distribution Date following such conversion (in the
case of clause (y)(I) above) or the date of such conversion (in the
case of clause (y)(II) above).
"LENDING OFFICE" means the lending office of the Primary
Liquidity Provider presently located at Stuttgart, Germany or such
other lending office as the Primary Liquidity Provider from time to
time shall notify the Borrower as its lending office hereunder;
provided that the Primary Liquidity Provider shall not change its
Lending Office without the prior written consent of Delta (such consent
not to be unreasonably withheld).
"LIBOR ADVANCE" means an Advance bearing interest at a rate
based upon the LIBOR Rate.
"LIBOR RATE" means, with respect to any Interest Period, (a)
the interest rate per annum equal to the rate at which deposits in
Dollars are offered in the London interbank market as shown on Page
3750 of the Telerate Systems Incorporated screen service (or such other
page as may replace Telerate Page 3750), or if such service is not
available, the interest rate per annum equal to the average (rounded
up, if necessary, to the nearest 1/100th of 1%) of the rates at which
deposits in Dollars are offered in the London interbank market as shown
on Page LIBO of the Reuters Money Service Monitor System (or such other
page as may replace Reuters Page LIBO) at approximately 11:00 a.m.
(London time) on the day that is two London Business Days prior to the
first day of such Interest Period, for a period comparable to such
Interest Period, or (b) if no such rate is published on either such
service or if neither of such services is then available, the interest
rate per annum equal to the average (rounded up, if necessary, to the
nearest 1/100th of 1%) of the rates at which deposits in Dollars are
offered by the Reference Banks (or, if fewer than all of the Reference
Banks are quoting a rate for deposits in
4
Dollars for the applicable period and amount, such fewer number of
Reference Banks) at approximately 11:00 a.m. (London time) on the day
that is two London Business Days prior to the first day of such
Interest Period to prime banks in the London interbank market for a
period comparable to such Interest Period and in an amount
approximately equal to the principal amount of the LIBOR Advance to be
outstanding during such Interest Period, or (c) if none of the
Reference Banks is quoting a rate for deposits in Dollars in the London
interbank market for such a period and amount, the interest rate per
annum equal to the average (rounded up, if necessary, to the nearest
1/100th of 1%) of the rates at which deposits in Dollars are offered by
the principal New York offices of the Reference Banks (or, if fewer
than all of the Reference Banks are quoting a rate for deposits in
Dollars in the New York interbank market for the applicable period and
amount, such fewer number of Reference Banks) at approximately 11:00
a.m. (New York time) on the day that is two London Business Days prior
to the first day of such Interest Period to prime banks in the New York
interbank market for a period comparable to such Interest Period and in
an amount approximately equal to the principal amount of the LIBOR
Advance to be outstanding during such Interest Period, or (d) if none
of the principal New York offices of the Reference Banks is quoting a
rate for deposits in Dollars in the New York interbank market for the
applicable period and amount, the Base Rate.
"LIQUIDITY EVENT OF DEFAULT" means the occurrence of either
(a) the Acceleration of all of the Equipment Notes or (b) a Delta
Bankruptcy Event.
"LIQUIDITY INDEMNITEE" means the Primary Liquidity Provider,
its directors, officers, employees and agents, and its successors and
permitted assigns.
"LONDON BUSINESS DAY" means any day on which commercial banks
are open for general business in London, England.
"LONDON/STUTTGART BUSINESS DAY" means any day on which
commercial banks are open for general business in London, England and
Stuttgart, Germany.
"MAXIMUM AVAILABLE COMMITMENT" means, subject to the proviso
contained in the third sentence of Section 2.02(a), at any time of
determination, (a) the Maximum Commitment at such time less (b) the
aggregate amount of each Interest Advance outstanding at such time;
provided that following a Provider Advance or a Final Advance, the
Maximum Available Commitment shall be zero.
"MAXIMUM COMMITMENT" means initially $75,217,115.51, as the
same may be reduced from time to time in accordance with Section
2.04(a).
"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.
"PARTICIPATION" has the meaning specified in Section 7.08(b).
5
"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.
"PERMITTED TRANSFEREE" means any Person that:
(a) is not a commercial air carrier, Delta or
any affiliate of Delta; and
(b) is any one of:
(1) a commercial banking institution
organized under the laws of the United States or any
state thereof or the District of Columbia;
(2) a commercial banking institution
that (x) is organized under the laws of France,
Germany, The Netherlands, Switzerland or the United
Kingdom, (y) is entitled on the date it acquires any
Participation to a complete exemption from United
States federal income taxes for all income derived by
it from the transactions contemplated by the
Operative Agreements under an income tax treaty, as
in effect on such date, between the United States and
such jurisdiction of its organization and (z) is
engaged in the active conduct of a banking business
in such jurisdiction of its organization, holds its
Participation in connection with such banking
business in such jurisdiction and is regulated as a
commercial banking institution by the appropriate
regulatory authorities in such jurisdiction; or
(3) a commercial banking institution
that (x) is organized under the laws of Canada,
France, Germany, Ireland, Japan, Luxembourg, The
Netherlands, Sweden, Switzerland or the United
Kingdom and (y) is entitled on the date it acquires
any Participation to a complete exemption from
withholding of United States federal income taxes for
all income derived by it from the transactions
contemplated by the Operative Agreements under laws
as in effect on such date by reason of such income
being effectively connected with the conduct of a
trade or business within the United States.
"PRIMARY LIQUIDITY PROVIDER" has the meaning specified in the
introductory paragraph to this Agreement.
"PROVIDER ADVANCE" means a Downgrade Advance.
"REFERENCE BANKS" means the principal London offices of:
Landesbank Baden-Wurttemberg; X.X. Xxxxxx Xxxxx Bank; Citibank, N.A.;
and such other or additional banking institutions as may be designated
from time to time by mutual agreement of Delta and the Primary
Liquidity Provider.
"REGULATORY CHANGE" means the enactment, adoption or
promulgation, after the date of this Agreement, of any law or
regulation by a United States federal or state government or by the
German federal government or the state of the Primary Liquidity
6
Provider's organization, or any change, after the date of this
Agreement, in any such law or regulation, or in the interpretation
thereof by any governmental authority, central bank or comparable
agency of the United States or Germany charged with responsibility for
the administration or application thereof, that shall impose, modify or
deem applicable: (a) any reserve, special deposit or similar
requirement against extensions of credit or other assets of, or
deposits with or other liabilities of, the Primary Liquidity Provider
including, or by reason of, the Advances, or (b) any capital adequacy
requirement requiring the maintenance by the Primary Liquidity Provider
of additional capital in respect of any Advances or the Primary
Liquidity Provider's obligation to make any such Advances.
"REPLENISHMENT AMOUNT" has the meaning specified 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
Capped Interest Rate for the Class G Certificates on the basis of a
year of 360 days for the actual number of days elapsed, that would be
payable on the Class G Certificates on each of the six successive
quarterly Regular Distribution Dates immediately following such day or,
if such day is a Regular Distribution Date, on such day and the
succeeding five quarterly Regular Distribution Dates, in each case
calculated on the basis of the Pool Balance of the Class G Certificates
on such day and without regard to expected future distributions of
principal on the Class G Certificates. Notwithstanding the above, in
the event of a Policy Provider Election with respect to a Series G
Equipment Note, the Pool Balance, for purposes of this definition,
shall be deemed to be reduced by an amount (if positive) by which (a)
the then outstanding principal balance of such Series G Equipment Note
shall exceed (b) the amount of any policy drawings previously paid by
the Policy Provider in respect of principal on such Series G Equipment
Note.
"TERMINATION DATE" means the earliest to occur of the
following: (i) the Expiry Date; (ii) the date on which the Borrower
delivers to the Primary Liquidity Provider and the Policy Provider a
certificate, signed by a Responsible Officer of the Borrower,
certifying that all of the Class G Certificates have been paid in full
(or provision has been made for such payment in accordance with the
Intercreditor Agreement and the Class G Trust Agreement) or are
otherwise no longer entitled to the benefits of this Agreement; (iii)
the date on which the Borrower delivers to the Primary Liquidity
Provider and the Policy Provider a certificate, signed by a Responsible
Officer of the Borrower, certifying that a Replacement Primary
Liquidity Facility has been substituted for this Agreement in full
pursuant to Section 3.06(e) of the Intercreditor Agreement; (iv) the
fifth Business Day following the receipt by the Borrower and the Policy
Provider of a Termination Notice from the Primary 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 IV to this Agreement.
7
"UNAPPLIED PROVIDER ADVANCE" means any Provider Advance other
than an Applied Provider Advance.
"UNPAID ADVANCE" has the meaning specified in Section 2.05.
For the purposes of this Agreement, the following terms shall have the
respective meanings specified in the Intercreditor Agreement:
"Above-Cap Liquidity Provider", "Acceleration", "Break
Amount", "Capped Interest Rate", "Certificate", "Class C Certificates",
"Class D Certificates", "Class G Certificates", "Class G
Certificateholders", "Class G Trust", "Class G Trust Agreement", "Class
G Trustee", "Closing Date", "Collection Account", "Controlling Party",
"Corporate Trust Office", "Delta", "Delta Bankruptcy Event", "Dollars",
"Downgraded Facility", "Equipment Notes", "Fee Letter", "Indenture",
"Initial Class C Holder", "Initial Class D Holder", "Initial
Purchasers", "Investment Earnings", "Loan Trustee", "Make-Whole
Amount", "Xxxxx'x", "Operative Agreements", "Participation Agreements",
"Performing Equipment Note", "Person", "Policy Provider", "Policy
Provider Election", "Pool Balance", "Primary Cash Collateral Account",
"Primary Liquidity Facility", "Rating Agencies", "Regular Distribution
Date", "Replacement Primary Liquidity Facility", "Responsible Officer",
"Scheduled Payment", "Series G Equipment Note", "Special Payment",
"S&P", "Stated Interest Rate", "Subordination Agent", "Taxes",
"Threshold Rating", "Trust Agreement", "Trustee", and "United States".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances. The Primary Liquidity Provider hereby
irrevocably agrees, on the terms and conditions hereinafter set forth, to make
Advances to the Borrower from time to time on any Business Day during the period
from the Effective Date until 12:00 noon (New York City time) on the Expiry Date
(unless the obligations of the Primary Liquidity Provider shall be earlier
terminated in accordance with the terms of Section 2.04(b)) in an aggregate
amount at any time outstanding not to exceed the Maximum Commitment.
Section 2.02. Making of Advances. (a) Each Interest Advance shall be
made by the Primary Liquidity Provider upon delivery to the Primary Liquidity
Provider (with a copy to the Policy 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 to be in an amount not exceeding
the Maximum Available Commitment at such time and used solely for the payment
when due of interest with respect to the Class G Certificates at the Stated
Interest Rate therefor in accordance with Section 3.06(a) and 3.06(b) of the
Intercreditor Agreement. Each Interest Advance made hereunder shall
automatically reduce the Maximum Available Commitment and the amount available
to be borrowed hereunder by subsequent Advances by the amount of such Interest
Advance (subject to reinstatement as provided in the next sentence). Subject to
the provisions of Section 3.06(g) of the Intercreditor Agreement, upon repayment
to
8
the Primary 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 an amount equal to the amount of such Interest Advance so repaid,
but not to exceed the Maximum Commitment; provided, however, that the Maximum
Available Commitment shall not be so reinstated at any time if (x) both a
Performing Note Deficiency exists and a Liquidity Event of Default shall have
occurred and be continuing or (y) a Final Drawing shall have occurred.
(b) [Reserved]
(c) A Downgrade Advance shall be made by the Primary Liquidity
Provider (as provided for in Section 3.06(c) of the Intercreditor Agreement) if
at any time the short-term unsecured debt rating (in the case of Xxxxx'x) or
short-term issuer credit rating (in the case of S&P) of the Primary Liquidity
Provider issued by Xxxxx'x or S&P, respectively, (or if the Primary Liquidity
Provider does not have a short-term unsecured debt rating or short-term issuer
credit rating, as applicable, issued by a given Rating Agency, the long-term
unsecured debt rating (in the case of Xxxxx'x) or long-term issuer credit rating
(in the case of S&P) of the Primary Liquidity Provider issued by such Rating
Agency) is lower than the applicable Threshold Rating unless a Replacement
Primary Liquidity Facility to replace this Agreement shall have been previously
delivered to the Borrower in accordance with said Section 3.06(c), upon delivery
to the Primary Liquidity Provider (with a copy to the Policy Provider) of a
written and completed Notice of Borrowing in substantially the form of Annex II,
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 Primary
Cash Collateral Account in accordance with Sections 3.06(c) and 3.06(f) of the
Intercreditor Agreement.
(d) A Final Advance shall be made by the Primary Liquidity
Provider following the receipt by the Borrower of a Termination Notice from the
Primary Liquidity Provider pursuant to Section 6.01 upon delivery to the Primary
Liquidity Provider (with a copy to the Policy 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 Primary Cash
Collateral Account (in accordance with Sections 3.06(f) and 3.06(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(c) or
2.02(d), as the case may be, given by the Borrower to the Primary Liquidity
Provider (with a copy to the Policy Provider). If a Notice of Borrowing is
delivered by the Borrower in respect of any Borrowing no later than 1:00 p.m.
(New York City time) on a Business Day, upon satisfaction of the conditions
precedent set forth in Section 4.02 with respect to a requested Borrowing, the
Primary Liquidity Provider shall make available to the Borrower, in accordance
with its payment instructions, the amount of such Borrowing in Dollars and
immediately available funds, before 4:00 p.m. (New York City time) on such
Business Day or before 1:00 p.m. (New York City time) on such later Business Day
specified in such Notice of Borrowing. If a Notice of Borrowing is delivered by
the Borrower in respect of any Borrowing after 1:00 p.m. (New York City time) on
a Business Day, upon satisfaction of the conditions precedent set forth in
Section 4.02 with respect to a requested Borrowing, the Primary Liquidity
Provider shall make available to the Borrower, in accordance
9
with its payment instructions, the amount of such Borrowing in Dollars and
immediately available funds, before 1:00 p.m. (New York City time) on the first
Business Day next following the day of receipt of such Notice of Borrowing or on
such later Business Day specified by the Borrower in such Notice of Borrowing.
Payments of proceeds of a Borrowing shall be made by wire transfer of
immediately available funds to the Borrower in accordance with such wire
transfer instructions as the Borrower shall furnish from time to time to the
Primary Liquidity Provider for such purpose. Each Notice of Borrowing shall be
irrevocable and binding on the Borrower. Each Notice of Borrowing shall be
effective upon delivery of a copy thereof to the Primary Liquidity Provider's
New York branch (with a copy to the Lending Office) at the address specified
pursuant to the terms of Section 7.02 hereof.
(f) Upon the making of any Advance requested pursuant to a Notice
of Borrowing in accordance with the Borrower's payment instructions, the Primary
Liquidity Provider shall be fully discharged of its obligation hereunder with
respect to such Notice of Borrowing, and the Primary Liquidity Provider shall
not thereafter be obligated to make any further Advances hereunder in respect of
such Notice of Borrowing to the Borrower or to any other Person (including the
Trustee or any Class G Certificateholder). If the Primary Liquidity Provider
makes an Advance requested pursuant to a Notice of Borrowing before 12:00 noon
(New York City time) on the second Business Day after the date of payment
specified in Section 2.02(e), the Primary Liquidity Provider shall have fully
discharged its obligations hereunder with respect to such Advance and an event
of default shall not have occurred hereunder. Following the making of any
Advance pursuant to Section 2.02(c) or 2.02(d) to fund the Primary Cash
Collateral Account, the Primary Liquidity Provider shall have no interest in or
rights to the Primary Cash Collateral Account, such Advance or any other amounts
from time to time on deposit in the Primary Cash Collateral Account; provided
that the foregoing shall not affect or impair the obligations of the
Subordination Agent to make the distributions contemplated by Section 3.06(e) or
3.06(f) of the Intercreditor Agreement and provided further, that the foregoing
shall not affect or impair the rights of the Primary Liquidity Provider to
provide written instructions with respect to the investment and reinvestment of
amounts in the Primary Cash Collateral Account to the extent provided in Section
2.02(b) of the Intercreditor Agreement. By paying to the Borrower proceeds of
Advances requested by the Borrower in accordance with the provisions of this
Agreement, the Primary Liquidity Provider makes no representation as to, and
assumes no responsibility for, the correctness or sufficiency for any purpose of
the amount of the Advances so made and requested.
Section 2.03. Fees. The Borrower agrees to pay to the Primary Liquidity
Provider the fees set forth in the Fee Letter.
Section 2.04. Reduction or Termination of the Maximum Commitment. (a)
Automatic Reduction. Promptly following each date on which the Required Amount
is reduced as a result of a reduction in the Capped Interest Rate or the Pool
Balance of the Class G Certificates (including upon any Policy Provider Election
with respect to a Series G Equipment Note) or otherwise, the Maximum Commitment
shall automatically be reduced to an amount equal to such reduced Required
Amount (as calculated by the Borrower). The Borrower shall give notice of any
such automatic reduction of the Maximum Commitment to the Primary Liquidity
Provider, the Policy Provider and Delta within two Business Days thereof. The
failure by the Borrower to furnish any such notice shall not affect such
automatic reduction of the Maximum Commitment.
10
(b) Termination. Upon the making of any Provider Advance or the
making or conversion to a Final Advance hereunder or the occurrence of the
Termination Date, the obligation of the Primary Liquidity Provider to make
further Advances hereunder shall automatically and irrevocably terminate, and
the Borrower shall not be entitled to request any further Borrowing hereunder.
Section 2.05. Repayments of Interest Advances or the Final Advance.
Subject to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby agrees,
without notice of an Advance or demand for repayment from the Primary Liquidity
Provider (which notice and demand are hereby waived by the Borrower), to pay, or
to cause to be paid, to the Primary Liquidity Provider on each date on which the
Primary Liquidity Provider shall make an Interest Advance or the Final Advance,
an amount equal to (a) the amount of such Advance (any such Advance, until
repaid, is referred to herein as an "UNPAID ADVANCE"), plus (b) interest on the
amount of each such Unpaid Advance in the amounts and on the dates determined as
provided in Section 3.07; provided that if (i) the Primary Liquidity Provider
shall make a Provider Advance at any time after making one or more Interest
Advances which shall not have been repaid in accordance with this Section 2.05
or (ii) this Primary Liquidity Facility shall become a Downgraded Facility 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 for all purposes of this Agreement (including, without limitation, for
the purpose of determining when such Interest Advance is required to be repaid
to the Primary Liquidity Provider in accordance with Section 2.06 and for the
purposes of Section 2.06(b)). The Borrower and the Primary Liquidity Provider
agree that the repayment in full of each Interest Advance and Final Advance on
the date such Advance is made is intended to be a contemporaneous exchange for
new value given to the Borrower by the Primary Liquidity Provider. For the
avoidance of doubt, interest payable on an Interest Advance or the Final Advance
shall not be regarded as overdue unless such interest is not paid when due under
Section 3.07.
Section 2.06. Repayments of Provider Advances. (a) Amounts advanced
hereunder in respect of a Provider Advance shall be deposited in the Primary
Cash Collateral Account and invested and withdrawn from the Primary Cash
Collateral Account as set forth in Sections 3.06(c)(i), 3.06(d), 3.06(e) and
3.06(f) of the Intercreditor Agreement. Subject to Sections 2.07 and 2.09, the
Borrower agrees to pay to the Primary Liquidity Provider, on each Regular
Distribution Date, commencing on the first Regular Distribution Date after the
making of a Provider Advance, interest on the principal amount of any such
Provider Advance, in the amounts determined as provided in Section 3.07;
provided, however, that amounts in respect of a Provider Advance withdrawn from
the Primary Cash Collateral Account for the purpose of paying interest on the
Class G Certificates in accordance with Section 3.06(f) of the Intercreditor
Agreement (the amount of any such withdrawal being, an "APPLIED DOWNGRADE
ADVANCE" or 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 the
dates on which such interest is payable; provided further, however, that if,
following the making of a Provider Advance, the Primary Liquidity Provider
delivers a Termination Notice to the Borrower and the Policy Provider 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
11
thereon and the dates on which such interest is payable. Subject to Sections
2.07 and 2.09 hereof, immediately upon the withdrawal of any amounts from the
Primary Cash Collateral Account on account of a reduction in the Required
Amount, the Borrower shall repay to the Primary Liquidity Provider a portion of
the Provider Advances in a principal amount equal to such reduction, plus
interest on the principal amount prepaid as provided in Section 3.07.
(b) At any time when an Applied Provider Advance (or any portion
thereof) is outstanding, upon the deposit in the Primary Cash Collateral Account
of any amount pursuant to clause "third" of Section 2.04(b) of the Intercreditor
Agreement, clause "third" of Section 3.02 of the Intercreditor Agreement or
clause "fourth" of Section 3.03 of the Intercreditor Agreement (any such amount
being a "REPLENISHMENT AMOUNT") for the purpose of replenishing or increasing
the balance thereof up to the Required Amount at such time, (i) the aggregate
outstanding principal amount of all Applied Provider Advances (and of Provider
Advances treated as an Interest Advance for purposes of determining the
Applicable Liquidity Rate for interest payable thereon) shall be automatically
reduced by the amount of such Replenishment Amount, and (ii) the aggregate
outstanding principal amount of all Unapplied Provider Advances shall be
automatically increased by the amount of such Replenishment Amount.
(c) Upon the provision of a Replacement Primary Liquidity Facility
in replacement of this Agreement in accordance with Section 3.06(e) of the
Intercreditor Agreement, as provided in Section 3.06(f)(iii) of the
Intercreditor Agreement, amounts remaining on deposit in the Primary Cash
Collateral Account after giving effect to any Applied Provider Advance on the
date of such replacement shall be reimbursed to the Primary Liquidity Provider,
but only to the extent such amounts are necessary to repay in full to the
Primary Liquidity Provider all amounts owing to it hereunder.
Section 2.07. Payments to the Primary Liquidity Provider Under the
Intercreditor Agreement. In order to provide for payment or repayment to the
Primary Liquidity Provider of any amounts hereunder, the Intercreditor Agreement
provides that amounts available and referred to in Articles II and III of the
Intercreditor Agreement, to the extent payable to the Primary Liquidity Provider
pursuant to the terms of the Intercreditor Agreement (including, without
limitation, Section 3.06(f) of the Intercreditor Agreement), shall be paid to
the Primary Liquidity Provider in accordance with the terms thereof (but, for
the avoidance of doubt, without duplication of or increase in any amounts
payable hereunder). Amounts so paid to, and not required to be returned by, the
Primary Liquidity Provider shall be applied by the Primary Liquidity Provider in
the order of priority required by the applicable provisions of Articles II and
III of the Intercreditor Agreement and shall discharge in full the corresponding
obligations of the Borrower hereunder.
Section 2.08. Book Entries. The Primary Liquidity Provider shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower resulting from Advances made from time to time
and the amounts of principal and interest payable hereunder and paid from time
to time in respect thereof; provided, however, that the failure by the Primary
Liquidity Provider to maintain such account or accounts shall not affect the
obligations of the Borrower in respect of Advances.
12
Section 2.09. Payments from Available Funds Only. All payments to be
made by the Borrower under this Agreement shall be made only from the amounts
that constitute Scheduled Payments, Special Payments and other payments under
the Operative Agreements, including payment under Section 4.02 of the
Participation Agreements and payments under Section 2.14 of the Indentures, 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 Primary Liquidity Provider agrees that it will
look solely to such amounts to the extent available for distribution to it as
provided in the Intercreditor Agreement and this Agreement and that the
Borrower, in its individual capacity, is not personally liable to it for any
amounts payable or liability under this Agreement except as expressly provided
in this Agreement, the Intercreditor Agreement or any Participation Agreement.
Amounts on deposit in the Primary Cash Collateral Account shall be available to
the Borrower to make payments under this Agreement only to the extent and for
the purposes expressly contemplated in Section 3.06(f) of the Intercreditor
Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs. If as a result of any Regulatory Change
there shall be any increase by an amount reasonably deemed by the Primary
Liquidity Provider to be material in the actual cost to the Primary Liquidity
Provider of making, funding or maintaining any Advances or its obligation to
make any such Advances or there shall be any reduction by an amount reasonably
deemed by the Primary Liquidity Provider to be material in the amount receivable
by the Primary Liquidity Provider under this Agreement or the Intercreditor
Agreement in respect thereof, and in case of either such an increase or
reduction, such event does not arise from the gross negligence or willful
misconduct of the Primary Liquidity Provider, from its breach of any of its
representations, warranties, covenants or agreements contained herein or in the
Intercreditor Agreement or from its failure to comply with any such Regulatory
Change (any such increase or reduction being referred to herein as an "INCREASED
COST"), then the Borrower shall from time to time pay to the Primary Liquidity
Provider an amount equal to such Increased Cost within 15 Business Days after
delivery to the Borrower and Delta of a certificate of an officer of the Primary
Liquidity Provider describing in reasonable detail the event by reason of which
it claims such Increased Cost and the basis for the determination of the amount
of such Increased Cost; provided that, the Borrower shall be obligated to pay
amounts only with respect to any Increased Costs accruing from the date 45 days
prior to the date of delivery of such certificate. Such certificate, in the
absence of manifest error, shall be considered prima facie evidence of the
amount of the Increased Costs for purposes of this Agreement; provided that any
determinations and allocations by the Primary Liquidity Provider of the effect
of any Regulatory Change on the costs of maintaining the Advances are made on a
reasonable basis. The Primary Liquidity Provider shall not be entitled to assert
any claim under this Section 3.01 in respect of or attributable to Taxes. The
Primary Liquidity Provider will notify the Borrower and Delta as promptly as
practicable of any event occurring after the date of this Agreement that will
entitle the Primary Liquidity Provider to compensation under this Section 3.01,
which notice shall describe in reasonable detail the calculation of amounts owed
under this
13
Section 3.01. The Primary Liquidity Provider agrees to investigate all
commercially reasonable alternatives for reducing any Increased Costs and to use
all commercially reasonable efforts (consistent with applicable legal and
regulatory restrictions) to avoid or minimize, to the greatest extent possible,
any claim in respect of Increased Costs, including, without limitation, by
designating a different Lending Office, if such designation or other action
would avoid the need for, or reduce the amount of, any such claim; provided that
the foregoing shall not obligate the Primary Liquidity Provider to take any
action that would, in its reasonable judgment, cause the Primary Liquidity
Provider to incur any material loss or cost, unless the Borrower or Delta agrees
to reimburse the Primary Liquidity Provider therefor. If no such designation or
other action is effected, or, if effected, fails to avoid the need for any claim
in respect of Increased Costs, Delta may arrange for a Replacement Primary
Liquidity Facility in accordance with Section 3.06(e) of the Intercreditor
Agreement.
Notwithstanding the foregoing provisions, in no event shall the
Borrower be required to make payments under this Section 3.01: (a) in respect of
any Regulatory Change proposed by any applicable governmental authority
(including any branch of a legislature), central bank or comparable agency of
the United States or the Primary Liquidity Provider's jurisdiction of
organization and pending as of the date of this Agreement (it being agreed that
the consultative paper issued by the Basel Committee on Banking Supervision
entitled "The New Basel Capital Accord", dated January 2001, shall not be
considered to have been proposed or pending as of the date of this Agreement);
(b) if a claim hereunder in respect of an Increased Cost arises through
circumstances peculiar to the Primary Liquidity Provider and that do not affect
similarly organized commercial banking institutions in the same jurisdiction
generally that are in compliance with the law, rule, regulation or
interpretation giving rise to the Regulatory Change relating to such Increased
Cost; (c) if the Primary Liquidity Provider shall fail to comply with its
obligations under this Section 3.01; or (d) if the Primary Liquidity Provider is
not also seeking payment for similar increased costs in other similarly situated
transactions.
Section 3.02. [Intentionally omitted.]
Section 3.03. Withholding Taxes. (a) All payments made by the Borrower
under this Agreement shall be made without deduction or withholding for or on
account of any Taxes, unless such deduction or withholding is required by law.
If any Taxes are so required to be withheld or deducted from any amounts payable
to the Primary Liquidity Provider under this Agreement, the Borrower shall pay
to the relevant authorities the full amount so required to be deducted or
withheld and, if such Taxes are Covered Taxes, pay to the Primary Liquidity
Provider such additional amounts as shall be necessary to ensure that the net
amount actually received by the Primary Liquidity Provider (after deduction or
withholding of all Covered Taxes) shall be equal to the full amount that would
have been received by the Primary Liquidity Provider had no withholding or
deduction of Covered Taxes been required. The Primary 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 Primary Liquidity Provider, be otherwise materially disadvantageous to the
Primary Liquidity Provider. If the Primary Liquidity Provider receives a refund
of, or realizes a net Tax benefit not otherwise available to it as a result of,
any Taxes for which additional amounts were paid by the Borrower pursuant to
14
this Section 3.03, the Primary Liquidity Provider shall pay to the Borrower (for
deposit into the Collection Account) the amount of such refund (and any interest
thereon) or net benefit.
The Primary Liquidity Provider will (i) provide (on its behalf and on
behalf of any participant holding a Participation pursuant to Section 7.08) to
the Borrower (x) on or prior to the Effective Date two valid completed and
executed copies of Internal Revenue Service Form W8-BEN or W8-EC1 (whichever is
applicable), including thereon a valid U.S. taxpayer identification number (or,
with respect to any such participant, such other form or documentation as may be
applicable) covering all amounts receivable by it in connection with the
transactions contemplated by the Operative Agreements and (y) thereafter from
time to time such additional forms or documentation as may be necessary to
establish an available exemption from withholding of United States Tax on
payments hereunder so that such forms or documentation are effective for all
periods during which it is the Primary Liquidity Provider and (ii) provide
timely notice to the Borrower if any such form or documentation is or becomes
inaccurate. The Primary Liquidity Provider shall deliver to the Borrower such
other forms or documents as may be reasonably requested by the Borrower or
required by applicable law to establish that payments hereunder are exempt from
or entitled to a reduced rate of Covered Taxes.
(b) All payments (including, without limitation, Advances) made by
the Primary Liquidity Provider under this Agreement shall be made free and clear
of, and without reduction for or on account of, any Taxes. If any Taxes are
required to be withheld or deducted from any amounts payable to the Borrower
under this Agreement, the Primary Liquidity Provider shall (i) within the time
prescribed therefor by applicable law pay to the appropriate governmental or
taxing authority the full amount of any such Taxes (and any additional Taxes in
respect of the 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) will be sufficient to yield to
the Borrower the full amount which would have been received by it had no such
withholding or deduction been made. Within 30 days after the date of each
payment under this Section 3.03(b), the Primary Liquidity Provider shall furnish
to the Borrower the original or a certified copy of (or other documentary
evidence of) the payment of the Taxes applicable to such payment.
If any exemption from, or reduction in the rate of, any Taxes required
to be borne by the Primary Liquidity Provider under this Section 3.03(b) is
reasonably available to the Borrower without providing any information regarding
the holders or beneficial owners of the Certificates, the Borrower shall deliver
the Primary Liquidity Provider such form or forms and such other evidence of the
eligibility of the Borrower for such exemption or reductions (but without any
requirement to provide any information regarding the holders or beneficial
owners of the Certificates) as the Primary Liquidity Provider may reasonably
identify to the Borrower as being required as a condition to exemption from, or
reduction in the rate of, such Taxes.
Section 3.04. Payments. The Borrower shall make or cause to be made
each payment to the Primary Liquidity Provider under this Agreement so as to
cause the same to be received by the Primary Liquidity Provider not later than
1:00 p.m. (New York City time) on the day when due. The Borrower shall make all
such payments in Dollars, to the Primary Liquidity Provider in immediately
available funds, by wire transfer to Deutsche Bank Trust Co. Americas, New York,
15
ABA No. 000000000; Swift Code: BKTR US 33; Account Holder: Landesbank
Baden-Wurttemberg, Stuttgart; Account No. 00-000-000; Swift Code: XXXXXXXX;
Reference: 4921 Loan Administration, Delta EETC 2003-1, or such other account as
the Primary Liquidity Provider shall notify the Borrower.
Section 3.05. Computations. All computations of interest based on the
Base Rate shall be made on the basis of a year of 365 or 366 days, as the case
may be, and all computations of interest based on the LIBOR Rate shall be made
on the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest is payable.
Section 3.06. Payment on Non-Business Days. Whenever any payment to be
made hereunder shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day and no additional
interest shall be due as a result (and if so made, shall be deemed to have been
made when due). If any payment in respect of interest on an Advance is so
deferred to the next succeeding Business Day, such deferral shall not delay the
commencement of the next Interest Period for such Advance (if such Advance is a
LIBOR Advance) or reduce the number of days for which interest will be payable
on such Advance on the next interest payment date for such Advance.
Section 3.07. Interest. (a) Subject to Sections 2.07 and 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 Primary Cash
Collateral Account to pay interest on the Class G Certificates) to but excluding
the date such principal amount shall be paid in full (or, in the case of an
Applied Provider Advance, the date on which the Primary Cash Collateral Account
is fully replenished in respect of such Advance) and (ii) any other amount due
hereunder (whether fees, commissions, expenses or other amounts or, to the
extent permitted by law, installments of interest on Advances or any such other
amount) that is not paid when due (whether at stated maturity, by acceleration
or otherwise) from and including the due date thereof to but excluding the date
such amount is paid in full, in each such case, at the interest rate per annum
for each day equal to the Applicable Liquidity Rate (as defined below) for such
Advance or such other amount, as the case may be, 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 to the maximum extent permitted by applicable
law any subsequent reduction in such interest rate will not reduce the rate of
interest payable pursuant to this Section 3.07 below the maximum rate permitted
by applicable law until the total amount of interest accrued equals the absolute
amount of interest that would have accrued (without additional interest thereon)
if such otherwise applicable interest rate as set forth in this Section 3.07 had
at all relevant 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
as specified in Section 2.09.
(b) Except as provided in Section 3.07(e), each Advance will be
either a Base Rate Advance or a LIBOR Advance as provided in this Section 3.07.
Each such Advance will be a Base Rate Advance for the period from the date of
its borrowing to (but excluding) the third
16
London/Stuttgart Business Day following the Primary Liquidity Provider's receipt
of the Notice of Borrowing for such Advance. Thereafter, such Advance shall be a
LIBOR Advance.
(c) Each LIBOR Advance shall bear interest during each Interest
Period at a rate per annum equal to the LIBOR Rate for such Interest Period plus
the Applicable Margin for such LIBOR Advance, payable in arrears on the last day
of such Interest Period and, in the event of the payment of principal of such
LIBOR Advance on a day other than such last day, on the date of such payment (to
the extent of interest accrued on the amount of principal repaid).
(d) Each Base Rate Advance shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin for such Base Rate Advance,
payable in arrears on each Regular Distribution Date and, in the event of the
payment of principal of such Base Rate Advance on a day other than a Regular
Distribution Date, on the date of such payment (to the extent of interest
accrued on the amount of principal repaid).
(e) Each outstanding Unapplied Provider Advance shall bear
interest in an amount equal to the Investment Earnings on amounts on deposit in
the Primary Cash Collateral Account from time to time, payable in arrears on
each Regular Distribution Date. A Final Advance resulting from the conversion of
any Advance or an Unapplied Provider Advance pursuant to Section 6.01 shall
always be a LIBOR Advance. Each Applied Provider Advance shall always be a LIBOR
Advance.
(f) Each amount not paid when due hereunder (whether fees,
commissions, expenses or other amounts or, to the extent permitted by applicable
law, installments of interest on Advances but excluding Advances) shall bear
interest at a rate per annum equal to the Base Rate plus 2.00% per annum until
paid.
(g) Each change in the Base Rate shall become effective
immediately. The rates of interest specified in this Section 3.07 with respect
to any Advance or other amount shall be referred to as the "APPLICABLE LIQUIDITY
RATE".
Section 3.08. Replacement of Borrower. Subject to Section 5.02, from
time to time and subject to the successor Borrower's meeting the eligibility
requirements set forth in Section 6.09 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 V (a "NOTICE OF REPLACEMENT SUBORDINATION AGENT") delivered to
the Primary Liquidity Provider and the Policy Provider by the then Borrower, the
successor Borrower designated therein shall become the Borrower for all purposes
hereunder.
Section 3.09. Funding Loss Indemnification. The Borrower shall pay to
the Primary Liquidity Provider, upon the request of the Primary Liquidity
Provider, such amount or amounts as shall be sufficient (in the reasonable
opinion of the Primary Liquidity Provider) to compensate it for any loss, cost
or expense incurred by reason of the liquidation or redeployment of deposits or
other funds acquired by the Primary Liquidity Provider to fund or maintain any
LIBOR Advance (but excluding loss of the Applicable Margin or anticipated
profits) incurred as a result of:
17
(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 law, rule or regulation applicable to or binding
on the Primary Liquidity Provider, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by the Primary Liquidity Provider with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency shall make it unlawful or impossible for the Primary Liquidity Provider
to maintain or fund its LIBOR Advances, then upon notice to the Borrower, the
Policy Provider and Delta by the Primary Liquidity Provider, the outstanding
principal amount of the LIBOR Advances shall be converted to Base Rate Advances
(a) immediately upon demand of the Primary Liquidity Provider, if such change or
compliance with such request, in the reasonable judgment of the Primary
Liquidity Provider, requires immediate conversion; or (b) at the expiration of
the last Interest Period to expire before the effective date of any such change
or request. The Primary Liquidity Provider will notify the Borrower and Delta as
promptly as practicable of any event that will lead to the conversion of LIBOR
Advances to Base Rate Advances under this Section 3.10. The Primary Liquidity
Provider agrees to investigate all commercially reasonable alternatives for
avoiding the need for such conversion, including, without limitation,
designating a different Lending Office, if such designation or other action
would avoid the need to convert such LIBOR Advances to Base Rate Advances;
provided that the foregoing shall not obligate the Primary Liquidity Provider to
take any action that would, in its reasonable judgment, cause the Primary
Liquidity Provider to incur any material loss or cost, unless the Borrower or
Delta agrees to reimburse the Primary Liquidity Provider therefor. If no such
designation or other action is effected, or, if effected, fails to avoid the
need for conversion of the LIBOR Advances to Base Rate Advances, Delta may
arrange for a Replacement Primary Liquidity Facility in accordance with Section
3.06(e) of the Intercreditor Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "EFFECTIVE DATE") on which the following conditions precedent have
been satisfied (or waived by the appropriate party or parties):
(a) The Primary Liquidity Provider shall have received on
or before the Closing Date each of the following, and in the case of
each document delivered pursuant to paragraphs (i), (ii) and (iii),
each in form and substance satisfactory to the Primary Liquidity
Provider:
18
(i) This Agreement and the Fee Letter duly
executed on behalf of the Borrower and Delta, in the case of
the Fee Letter;
(ii) The Intercreditor Agreement duly executed on
behalf of each of the parties thereto (other than the Primary
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) Specimen copies of the Class G Certificates;
(v) An executed copy of each document,
instrument, certificate and opinion delivered on or before the
Closing Date pursuant to the Class G Trust Agreement, the
Intercreditor Agreement and the other Operative Agreements (in
the case of each such opinion, either addressed to the Primary
Liquidity Provider or accompanied by a letter from the counsel
rendering such opinion to the effect that the Primary
Liquidity Provider is entitled to rely on such opinion as of
its date as if it were addressed to the Primary Liquidity
Provider); and
(vi) An agreement from Delta, pursuant to which
(x) Delta agrees to provide copies of quarterly financial
statements and audited annual financial statements to the
Primary Liquidity Provider (which Delta may provide in an
electronic format by electronic mail or making such available
over the internet) and (y) Delta agrees to allow the Primary
Liquidity Provider to discuss the transactions contemplated by
the Operative Agreements with officers and employees of Delta.
(b) On and as of the Effective Date no event shall have
occurred and be continuing, or would result from the entering into of
this Agreement or the making of any Advance, which constitutes a
Liquidity Event of Default.
(c) The filings referred to in Sections 3.01(d) and
3.02(c) of the Participation Agreements shall have been filed (or shall
be in the process of being filed).
(d) The Primary Liquidity Provider shall have received
payment in full of the fees and other sums required to be paid to or
for the account of the Primary Liquidity Provider on or prior to the
Effective Date pursuant to the Fee Letter.
(e) All conditions precedent to the issuance of the
Certificates under the Trust Agreements shall have been satisfied or
waived and all conditions precedent to the purchase of (i) the Class G
Certificates by the Initial Purchasers, (ii) the Class C Certificates
by the Initial Class C Holder, and (iii) the Class D Certificates by
the Initial Class D Holder, shall have been satisfied.
(f) The Borrower and Delta shall have received a
certificate, dated the Effective Date signed by a duly authorized
representative of the Primary Liquidity
19
Provider, certifying that all conditions precedent specified in this
Section 4.01 have been satisfied or waived by the Primary Liquidity
Provider.
Section 4.02. Conditions Precedent to Borrowing. The obligation of the
Primary Liquidity Provider to make an Advance on the occasion of each Borrowing
shall be subject to the conditions precedent that the Effective Date shall have
occurred and, prior to the time of such Borrowing, the Borrower shall have
delivered a Notice of Borrowing which conforms to the terms and conditions of
this Agreement.
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower. So long as any
Advance shall remain unpaid or the Primary Liquidity Provider shall have any
Maximum Commitment hereunder or the Borrower shall have any obligation to pay
any amount to the Primary Liquidity Provider hereunder, the Borrower will,
unless the Primary Liquidity Provider shall otherwise consent in writing:
(a) Performance of This and Other Agreements. Punctually
pay or cause to be paid all amounts payable by it under this Agreement,
the Intercreditor Agreement and the Fee Letter and observe and perform
in all material respects the conditions, covenants and requirements
applicable to it contained in this Agreement, the Intercreditor
Agreement and the Fee Letter.
(b) Reporting Requirements. Furnish to the Primary
Liquidity Provider with reasonable promptness, such other information
and data with respect to the transactions contemplated by the Operative
Agreements as from time to time may be reasonably requested by the
Primary Liquidity Provider; and permit the Primary Liquidity Provider,
upon reasonable notice, to inspect the Borrower's books and records
with respect to such transactions and to meet with officers and
employees of the Borrower to discuss such transactions.
(c) Certain Operative Agreements. Furnish to the Primary
Liquidity Provider with reasonable promptness, copies of such Operative
Agreements entered into after the date hereof as from time to time may
be reasonably requested by the Primary Liquidity Provider.
Section 5.02. Negative Covenants of the Borrower. Subject to the first
and fourth paragraphs of Section 7.01(a) of the Intercreditor Agreement and
Section 7.01(b) of the Intercreditor Agreement, so long as any Advance shall
remain unpaid or the Primary Liquidity Provider shall have any Maximum
Commitment hereunder or the Borrower shall have any obligation to pay any amount
to the Primary Liquidity Provider hereunder, the Borrower will not appoint or
permit or suffer to be appointed any successor Borrower without the prior
written consent of the Primary Liquidity Provider, which consent shall not be
unreasonably withheld or delayed.
20
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default. If (a) any Liquidity Event
of Default has occurred and is continuing and (b) there is a Performing Note
Deficiency, the Primary Liquidity Provider may, in its discretion, deliver to
the Borrower and the Policy Provider a Termination Notice, the effect of which
shall be to cause (i) this Agreement to expire at the close of business on the
fifth Business Day after the date on which such Termination Notice is received
by the Borrower and the Policy Provider, (ii) the Borrower to promptly request,
and the Primary Liquidity Provider to promptly make, a Final Advance in
accordance with Section 2.02(d) hereof and Section 3.06(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, any accrued interest thereon and any other amounts outstanding
hereunder to become immediately due and payable to the Primary Liquidity
Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.01. No Oral Modifications or Continuing Waivers. No terms or
provisions of this Agreement may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the Borrower and the
Primary Liquidity Provider and any other Person whose consent is required
pursuant to this Agreement; provided that no such change or other action
relating to payment terms (including timing of any payments) shall affect the
payment obligations of Delta without Delta's prior written consent and any such
change or other action relating to payment terms (including timing of any
payments) that would adversely affect the interests of the Policy Provider shall
require the consent of the Policy Provider; and any waiver of the terms hereof
shall be effective only in the specific instance and for the specific purpose
given.
Section 7.02. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices, requests, demands, authorizations,
directions, consents, waivers or documents required or permitted under the terms
and provisions of this Agreement shall be in English and in writing, and given
by United States registered or certified mail, courier service or facsimile, and
any such notice shall be effective when delivered (or, if delivered by
facsimile, upon completion of transmission and confirmation by the sender (by a
telephone call to a representative of the recipient or by machine confirmation)
that such transmission was received) addressed as follows:
21
If to the Borrower, to:
U.S. BANK TRUST NATIONAL ASSOCIATION
000 Xxxxxx Xxxxxx, Xxxxxxx Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Primary Liquidity Provider, to:
XXXXXXXXXX XXXXX-XXXXXXXXXXX
Xx Xxxxxxxxxxxx 0
X-00000 Xxxxxxxxx
Xxxxxxx
Attention: Transportation Finance/Xxxxxxxx Xxxx
Telephone: x00 000 000-0000
Telecopy: x00 000 000-0000
LANDESBANK BADEN-WURTTEMBERG, NEW YORK BRANCH
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx, Vice President
Xxxxx Xxxxxx, Assistant Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Any party, by notice to the other party hereto, may designate
additional or different addresses for subsequent notices or communications.
Whenever the words "notice" or "notify" or similar words are used herein, they
mean the provision of formal notice as set forth in this Section 7.02.
Section 7.03. No Waiver; Remedies. No failure on the part of the
Primary Liquidity Provider to exercise, and no delay in exercising, any right
under this Agreement shall operate as a waiver thereof; nor shall any single or
partial exercise of any right under this Agreement preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 7.04. Further Assurances. The Borrower agrees to do such
further acts and things and to execute and deliver to the Primary Liquidity
Provider such additional assignments, agreements, powers and instruments as the
Primary Liquidity Provider may reasonably require or deem advisable to carry
into effect the purposes of this Agreement and the other Operative
22
Agreements or to better assure and confirm unto the Primary Liquidity Provider
its rights, powers and remedies hereunder and under the other Operative
Agreements.
Section 7.05. Indemnification; Survival of Certain Provisions. The
Primary Liquidity Provider shall be indemnified hereunder to the extent and in
the manner described in Section 4.02 of the Participation Agreements. In
addition, the Borrower agrees to indemnify, protect, defend and hold harmless
each Liquidity Indemnitee from and against all Expenses of any kind or nature
whatsoever (other than any Expenses of the nature described in Sections 3.01 or
7.07 or in the Fee Letter (regardless of whether indemnified against pursuant to
said Sections or in such Fee Letter)), that may be imposed on or incurred by
such Liquidity Indemnitee, in any way relating to, resulting from, or arising
out of or in connection with, any action, suit or proceeding by any third party
against such Liquidity Indemnitee and relating to this Agreement, the Fee
Letter, the Intercreditor Agreement or any Participation Agreement; provided,
however, that the Borrower shall not be required to indemnify, protect, defend
and hold harmless any Liquidity Indemnitee in respect of any Expense of such
Liquidity Indemnitee to the extent such Expense is (i) attributable to the
negligence or willful misconduct of such Liquidity Indemnitee or any other
Liquidity Indemnitee, (ii) an ordinary and usual operating overhead expense,
(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 or (iv) otherwise excluded from the indemnification provisions contained
in Section 4.02 of the Participation Agreements. The provisions of Sections
3.01, 3.03, 3.09, 7.05 and 7.07 and the indemnities contained in Section 4.02 of
the Participation Agreements shall survive the termination of this Agreement.
Section 7.06. Liability of the Primary Liquidity Provider. (a) Neither
the Primary Liquidity Provider nor any of its officers, employees or directors
shall be liable or responsible for: (i) the use which may be made of the
Advances or any acts or omissions of the Borrower or any beneficiary or
transferee in connection therewith; (ii) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient, fraudulent or
forged; or (iii) the making of Advances by the Primary Liquidity Provider
against delivery of a Notice of Borrowing and other documents which do not
comply with the terms hereof; provided, however, that the Borrower shall have a
claim against the Primary Liquidity Provider, and the Primary Liquidity Provider
shall be liable to the Borrower, to the extent of any damages suffered by the
Borrower that were the result of (A) the Primary Liquidity Provider's willful
misconduct or gross negligence in determining whether documents presented
hereunder comply with the terms hereof or (B) any breach by the Primary
Liquidity Provider of any of the terms of this Agreement or the Intercreditor
Agreement, including, but not limited to, the Primary Liquidity Provider's
failure to make lawful payment hereunder after the delivery to it by the
Borrower of a Notice of Borrowing complying with the terms and conditions
hereof.
(b) Neither the Primary Liquidity Provider nor any of its
officers, employees or 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
23
misconduct or negligence (in which event the extent of the Primary Liquidity
Provider's potential liability to the Borrower shall be limited as set forth in
the immediately preceding paragraph), in connection with this Agreement or any
Notice of Borrowing.
Section 7.07. Certain Costs and Expenses. The Borrower agrees promptly
to pay, or cause to be paid, (a) the reasonable fees, expenses and disbursements
of Milbank, Tweed, Xxxxxx & XxXxxx LLP, special counsel for the Primary
Liquidity Provider, in connection with the preparation, negotiation, execution,
delivery, filing and recording of the Operative Agreements, any waiver or
consent thereunder or any amendment thereof and (b) if a Liquidity Event of
Default occurs, all out-of-pocket expenses incurred by the Primary Liquidity
Provider, including reasonable fees and disbursements of counsel, in connection
with such Liquidity Event of Default and any collection, bankruptcy, insolvency
and other enforcement proceedings in connection therewith. In addition, the
Borrower shall pay any and all recording, stamp and other similar taxes and fees
payable or determined to be payable in the United States in connection with the
execution, delivery, filing and recording of this Agreement, any other Operative
Agreement and such other documents, and agrees to save the Primary Liquidity
Provider harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes or fees.
Section 7.08. Binding Effect; Participations. (a) This Agreement shall
be binding upon and inure to the benefit of the Borrower and the Primary
Liquidity Provider and their respective successors and permitted assigns, except
that neither the Primary Liquidity Provider (except as otherwise provided in
this Section 7.08) nor (except as contemplated by Section 3.08) the Borrower
shall have the right to assign, pledge or otherwise transfer its rights or
obligations hereunder or any interest herein, subject to the Primary Liquidity
Provider's right to grant Participations pursuant to Section 7.08(b).
(b) The Primary Liquidity Provider agrees that it will not grant
any participation (including, without limitation, a "RISK PARTICIPATION") (any
such participation, a "PARTICIPATION") in or to all or a portion of its rights
and obligations hereunder or under the other Operative Agreements, unless all of
the following conditions are satisfied: (i) such Participation is to a Permitted
Transferee, (ii) such Participation is made in accordance with all applicable
laws, including, without limitation, the Securities Act of 1933, as amended, the
Trust Indenture Act of 1939, as amended, and any other applicable laws relating
to the transfer of similar interests and (iii) such Participation shall not be
made under circumstances that require registration under the Securities Act of
1933, as amended, or qualification of any indenture under the Trust Indenture
Act of 1939, as amended. Notwithstanding any such Participation, the Primary
Liquidity Provider agrees that (1) the Primary Liquidity Provider's obligations
under the Operative Agreements shall remain unchanged, and such participant
shall have no rights or benefits as against Delta or the Borrower or under any
Operative Agreement, (2) the Primary Liquidity Provider shall remain solely
responsible to the other parties to the Operative Agreements for the performance
of such obligations, (3) the Primary Liquidity Provider shall remain the maker
of any Advances, and the other parties to the Operative Agreements shall
continue to deal solely and directly with the Primary Liquidity Provider in
connection with the Advances and the Primary Liquidity Provider's rights and
obligations under the Operative Agreements, (4) the Primary Liquidity Provider
shall be solely responsible for any withholding Taxes or any filing or reporting
requirements relating to such Participation and shall hold the Borrower and
Delta and
24
their respective successors, permitted assigns, affiliates, agents and servants
harmless against the same and (5) neither Delta nor the Borrower shall be
required to pay to the Primary Liquidity Provider any amount under Section 3.01
or Section 3.03 greater than it would have been required to pay had there not
been any grant of a Participation by the Primary Liquidity Provider. The Primary
Liquidity Provider may, in connection with any Participation or proposed
Participation pursuant to this Section 7.08(b), disclose to the participant or
proposed participant any information relating to the Operative Agreements or to
the parties thereto furnished to the Primary Liquidity Provider thereunder or in
connection therewith and permitted to be disclosed by the Primary Liquidity
Provider; provided, however, that prior to any such disclosure, the participant
or proposed participant shall agree in writing for the express benefit of the
Borrower and Delta to preserve the confidentiality of any confidential
information included therein (subject to customary exceptions).
(c) Notwithstanding the other provisions of this Section 7.08, the
Primary Liquidity Provider may assign and pledge all or any portion of the
Advances owing to it to any Federal Reserve Bank or the United States Treasury
as collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank, provided that any payment in respect of such assigned Advances made by the
Borrower to the Primary Liquidity Provider in accordance with the terms of this
Agreement shall satisfy the Borrower's obligations hereunder in respect of such
assigned Advance to the extent of such payment. No such assignment shall release
the Primary Liquidity Provider from its obligations hereunder.
Section 7.09. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 7.10. Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN THE
STATE OF NEW YORK AND THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER 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, to the extent it may do so under
applicable law, for purposes hereof hereby (i) irrevocably submits itself to the
non-exclusive jurisdiction of the courts of the State of New York sitting in the
City of New York and to the non-exclusive jurisdiction of the United States
District Court for the Southern District of New York, for the purposes of any
suit, action or other proceeding arising out of this Agreement, the subject
matter hereof or any of the transactions contemplated hereby brought by any
party or parties hereto or thereto, or their successors or permitted assigns and
(ii) waives, and agrees not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper or
25
that this Agreement or the subject matter hereof or any of the transactions
contemplated hereby may not be enforced in or by such courts.
(b) THE BORROWER AND THE PRIMARY LIQUIDITY PROVIDER EACH HEREBY
AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS
BEING ESTABLISHED, including, without limitation, contract claims, tort claims,
breach of duty claims and all other common law and statutory claims. The
Borrower and the Primary Liquidity Provider each warrant and represent that it
has reviewed this waiver with its legal counsel, and that it knowingly and
voluntarily waives its jury trial rights following consultation with such legal
counsel. THIS WAIVER IS IRREVOCABLE, AND CANNOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
(c) The Primary Liquidity Provider hereby waives any immunity it
may have from the jurisdiction of the courts of the United States or of any
state thereof 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. Counterparts. This Agreement may be executed in any
number of counterparts (and each party shall not be required to execute the same
counterpart). Each counterpart of this Agreement including a signature page or
pages executed by each of the parties hereto shall be an original counterpart of
this Agreement, but all of such counterparts together shall constitute one
instrument.
Section 7.13. Entirety. This Agreement and the Intercreditor Agreement
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof and supersede all prior understandings and agreements of
such parties.
Section 7.14. Headings. The headings of the various Articles and
Sections herein and in the Table of Contents hereto are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section 7.15. Primary Liquidity Provider's Obligation to Make Advances.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE PRIMARY
LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO
DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL
BE ABSOLUTE, UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN
EACH CASE STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
26
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first set forth above.
U.S. BANK TRUST NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Subordination Agent,
as agent and trustee for the Class G Trust,
as Borrower
By:
-----------------------------------------
Name:
Title:
LANDESBANK BADEN-WURTTEMBERG, as
Primary Liquidity Provider
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
27
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 Landesbank Baden-Wurttemberg (the
"PRIMARY LIQUIDITY PROVIDER"), with reference to the Revolving Credit Agreement
(2003-1G), dated as of January 30, 2003, between the Borrower and the Primary
Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined or referenced),
that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of an Interest Advance by the Primary Liquidity Provider
to be used for the payment of the interest on the Class G Certificates
which is payable on ____________, ____ (the "DISTRIBUTION DATE") in
accordance with the terms and provisions of the Class G Trust Agreement
and the Class G Certificates, which Advance is requested to be made on
____________, ____. The Interest Advance should be remitted to [insert
wire and account details].
(3) The amount of the Interest Advance requested hereby
(i) is $_______________.__, to be applied in respect of the payment of
the interest which is due and payable on the Class G Certificates on
the Distribution Date, (ii) does not include any amount with respect to
the payment of principal of, or Break Amount (if any), or Make-Whole
Amount (if any) on, the Class G Certificates, the Class C Certificates,
the Class D Certificates, or interest on the Class C Certificates, or
the Class D Certificates (iii) was computed in accordance with the
provisions of the Class G Certificates 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) takes into account any amounts received in respect of any Series G
Equipment Note with respect of which a Policy Provider Election has
been made and (vi) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will apply the same in
accordance with the terms of Section 3.06(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 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 _________, ____.
U.S. BANK TRUST NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
-----------------------------------------
Name:
Title:
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Interest Advance Notice of Borrowing]
ANNEX II to
REVOLVING CREDIT AGREEMENT
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "BORROWER"), hereby certifies to Landesbank Baden-Wurttemberg (the
"PRIMARY LIQUIDITY PROVIDER"), with reference to the Revolving Credit Agreement
(2003-1G), dated as of January 30, 2003, between the Borrower and the Primary
Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined or referenced),
that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Downgrade Advance by the Primary Liquidity
Provider to be used for the funding of the Primary Cash Collateral
Account in accordance with Section 3.06(c) of the Intercreditor
Agreement, which Advance is requested to be made on __________, ____.
The Downgrade Advance should be remitted to [insert wire and account
details].
(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 Primary Cash Collateral Account in accordance with
Sections 3.06(c) and 3.06(f) of the Intercreditor Agreement, (ii) does
not include any amount with respect to the payment of the principal of,
or Break Amount (if any) or Make-Whole Amount (if any) on, the Class G
Certificates, or principal of, or interest or Break Amount (if any) or
Make-Whole Amount (if any) on, the Class C Certificates, or the Class D
Certificates, (iii) was computed in accordance with the provisions of
the Class G Certificates, the Class G Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto
as Schedule I) and (iv) has not been and is not the subject of a prior
or contemporaneous Notice of Borrowing 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 Primary Cash Collateral Account and apply the same in accordance
with the terms of Sections 3.06(c) and 3.06(f) 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
Primary Liquidity Provider to make further Advances under the Liquidity
Agreement and (B) following the making by the Primary Liquidity
Provider of the Downgrade Advance requested by this Notice of Borrowing, the
Borrower shall not be entitled to request any further Advances under the
Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice
of Borrowing as of the ____ day of _________, ____.
U.S. BANK TRUST NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
-----------------------------------------
Name:
Title:
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Downgrade Advance Notice of Borrowing]
ANNEX III to
REVOLVING CREDIT AGREEMENT
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "BORROWER"), hereby certifies to Landesbank Baden-Wurttemberg (the
"PRIMARY LIQUIDITY PROVIDER"), with reference to the Revolving Credit Agreement
(2003-1G), dated as of January 30, 2003, between the Borrower and the Primary
Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined or referenced),
that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Final Advance by the Primary Liquidity Provider
to be used for the funding of the Primary Cash Collateral Account in
accordance with Section 3.06(i) of the Intercreditor Agreement by
reason of the receipt by the Borrower of a Termination Notice from the
Primary Liquidity Provider with respect to the Liquidity Agreement,
which Advance is requested to be made on ____________, ____. The Final
Advance should be remitted to [insert wire and account details].
(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 Primary Cash Collateral Account in accordance with Sections 3.06(f)
and 3.06(i) of the Intercreditor Agreement, (ii) does not include any
amount with respect to the payment of principal of, or Break Amount (if
any) or Make-Whole Amount (if any) on, the Class G Certificates, or
principal of, or interest or Break Amount (if any) or Make-Whole Amount
(if any) on, the Class C Certificates or the Class D Certificates,
(iii) was computed in accordance with the provisions of the Class G
Certificates, the Class G Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule
I) and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such amount in
the Primary Cash Collateral Account and apply the same in accordance
with the terms of Sections 3.06(f) and 3.06(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.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Final Advance as requested by this Notice of
Borrowing shall automatically and
irrevocably terminate the obligation of the Primary Liquidity Provider to make
further Advances under the Liquidity Agreement and (B) following the making by
the Primary Liquidity Provider of the Final Advance requested by this Notice of
Borrowing, the Borrower shall not be entitled to request any further Advances
under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice
of Borrowing as of the ____ day of _________, ____.
U.S. BANK TRUST NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
-----------------------------------------
Name:
Title:
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Final Advance Notice of Borrowing]
ANNEX IV to
REVOLVING CREDIT AGREEMENT
NOTICE OF TERMINATION
[Date]
U.S. Bank National Association,
as Subordination Agent,
as Borrower
225 Asylum Street
Xxxxxxx Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Ambac Assurance Corporation,
as Policy Provider
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx, 00000
Attention: [ ]
Re: Revolving Credit Agreement, dated as of January 30,
2003, between U.S. Bank Trust National Association,
as Subordination Agent, as agent and trustee for
the Delta Air Lines Pass Through Trust 2003-1G, as
Borrower, and Landesbank Baden-Wurttemberg (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 and continuance 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 at the close of business 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 3.06(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 WILL TERMINATE AT THE
CLOSE OF BUSINESS ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU RECEIVE
THIS NOTICE.
Very truly yours,
LANDESBANK BADEN-WURTTEMBERG, as
Primary Liquidity Provider
By:
-----------------------------------------
Name:
Title:
cc: U.S. Bank Trust National Association, as Class G Trustee
ANNEX V to
REVOLVING CREDIT AGREEMENT
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Re: Revolving Credit Agreement, dated as of January 30, 2003, between U.S.
Bank Trust National Association, as Subordination Agent, as agent and
trustee for the Delta Air Lines Pass Through Trust 2003-1G, as
Borrower, and Landesbank Baden-Wurttemberg (the "LIQUIDITY AGREEMENT")
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
[Name of Transferee]
[Address of Transferee]
all rights and obligations of the undersigned as Borrower under the Liquidity
Agreement referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the first
paragraph of the Liquidity Agreement, pursuant to the terms of Section 7.01 of
the Intercreditor Agreement.
By this transfer, all rights of the undersigned as Borrower under the
Liquidity Agreement are transferred to the transferee and the transferee shall
hereafter have the sole rights and obligations as Borrower thereunder. The
undersigned shall pay any costs and expenses of such transfer, including, but
not limited to, transfer taxes or governmental charges.
This transfer shall be effective as of [specify time and date].
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Subordination Agent, as Borrower
By:
-----------------------------------------
Name:
Title:
