EX-4(C)(1)
EXHIBIT 4(C)(1)
CONFORMED COPY
REVOLVING CREDIT AGREEMENT
(2000-1G)
Dated as of June 28, 2000
between
STATE STREET BANK AND TRUST COMPANY
as Subordination Agent,
as Borrower
and
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH
as Liquidity Provider
Relating to
Northwest Airlines Pass Through Trust 2000-1G
8.072% Northwest Airlines Pass Through Certificates,
Series 2000-1G
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
Section 1.01 Certain Defined Terms . . . . . . . . . . . . . . . 1
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENT
Section 2.1 The Advances . . . . . . . . . . . . . . . . . . . . 7
Section 2.2 Making the Advances . . . . . . . . . . . . . . . . 8
Section 2.3 Fees . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.4 Reduction or Termination of the Maximum Commitment . 10
Section 2.5 Repayments of Interest Advances or the Final Advance 10
Section 2.6 Repayments of Provider Advances . . . . . . . . . . 10
Section 2.7 Payments to the Liquidity Provider Under the
Intercreditor Agreement . . . . . . . . . . . . . . . . . 11
Section 2.8 Book Entries . . . . . . . . . . . . . . . . . . . . 12
Section 2.9 Payments from Available Funds Only . . . . . . . . . 12
Section 2.10 Extension of the Expiry Date; Non-Extension Advance 12
ARTICLE III OBLIGATIONS OF THE BORROWER
Section 3.1 Increased Costs . . . . . . . . . . . . . . . . . . 13
Section 3.2 Capital Adequacy . . . . . . . . . . . . . . . . . . 14
Section 3.3 Payments Free of Deductions . . . . . . . . . . . . 14
Section 3.4 Payments . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.5 Computations . . . . . . . . . . . . . . . . . . . . 15
Section 3.6 Payment on Non-Business Days . . . . . . . . . . . . 15
Section 3.7 Interest . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.8 Replacement of Borrower . . . . . . . . . . . . . . 17
Section 3.9 Funding Loss Indemnification . . . . . . . . . . . . 17
Section 3.10 Illegality . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE IV CONDITIONS PRECEDENT
Section 4.1 Conditions Precedent to Effectiveness of
Section 2.1 . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.2 Conditions Precedent to Borrowing . . . . . . . . . 19
ARTICLE V COVENANTS
Section 5.1 Affirmative Covenants of the Borrower . . . . . . . 20
Section 5.2 Negative Covenants of the Borrower . . . . . . . . . 20
ARTICLE VI LIQUIDITY EVENTS OF DEFAULT
Section 6.1 Liquidity Events of Default . . . . . . . . . . . . 20
ARTICLE VII MISCELLANEOUS
Section 7.1 Amendments, Etc. . . . . . . . . . . . . . . . . . . 21
Section 7.2 Notices, Etc. . . . . . . . . . . . . . . . . . . . 00
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Xxxxxxx 7.3 No Waiver; Remedies . . . . . . . . . . . . . . . . 21
Section 7.4 Further Assurances . . . . . . . . . . . . . . . . . 22
Section 7.5 Indemnification; Survival of Certain Provisions . . 22
Section 7.6 Liability of the Liquidity Provider . . . . . . . . 22
Section 7.7 Costs, Expenses and Taxes . . . . . . . . . . . . . 23
Section 7.8 Binding Effect; Participations . . . . . . . . . . . 23
Section 7.9 Severability . . . . . . . . . . . . . . . . . . . . 25
Section 7.10 GOVERNING LAW . . . . . . . . . . . . . . . . . . . 25
Section 7.11 Submission to Jurisdiction; Waiver of Jury Trial;
Waiver of Immunity . . . . . . . . . . . . . . . . . . . . 25
Section 7.12 Execution in Counterparts . . . . . . . . . . . . . 26
Section 7.13 Entirety . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.14 Headings . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.15 LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES . . 26
Section 7.16 Head Office Obligation . . . . . . . . . . . . . . . 26
ANNEXES
ANNEX I Interest Advance Notice of Borrowing
ANNEX II Non-Extension Advance Notice of Borrowing
ANNEX III Downgrade Advance Notice of Borrowing
ANNEX IV Final Advance Notice of Borrowing
ANNEX V Notice of Termination
ANNEX VI Notice of Replacement Subordination Agent
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REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT dated as of June 28, 2000,
between STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company,
not in its individual capacity but solely as Subordination Agent under the
Intercreditor Agreement (each as defined below), (the "Borrower"), and CREDIT
SUISSE FIRST BOSTON, acting through its New York branch, a banking
institution organized under the laws of Switzerland (the "Liquidity
Provider").
W I T N E S S E T H:
WHEREAS, pursuant to the Class G Trust Agreement (such term
and all other capitalized terms used in these recitals having the meanings
set forth or referred to in Section 1.1), the Class G Trust is issuing the
Class G Certificates; and
WHEREAS, the Borrower, in order to support the timely
payment of a portion of the interest on the Class G Certificates in
accordance with their terms, has requested the Liquidity Provider to enter
into this Agreement, providing in part for the Borrower to request in
specified circumstances that Advances be made hereunder.
NOW, THEREFORE, in consideration of the premises, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms. (a) Definitions. As
used in this Agreement and unless otherwise expressly indicated, or unless
the context clearly requires otherwise, the following capitalized terms shall
have the following respective meanings for all purposes of this Agreement:
"Advance" means an Interest Advance, a Final Advance, a
Provider Advance, an Applied Provider Advance or an Unpaid Advance,
as the case may be.
"Applicable Liquidity Rate" has the meaning assigned to such
term in Section 3.7(f).
"Applicable Margin" means with respect to any Unpaid Advance
or Applied Provider Advance, 2.25% and with respect to any Unapplied
Provider Advance, 0.00%.
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"Applied Downgrade Advance" has the meaning assigned to such
term in Section 2.6(a).
"Applied Non-Extension Advance" has the meaning assigned to
such term in Section 2.6(a).
"Applied Provider Advance" has the meaning assigned to such
term in Section 2.6(a).
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum is at all times equal
to (a) the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or if such rate is not so published
for any day that is a Business Day, the average of the quotations for
such day for such transactions received by the Liquidity Provider
from three Federal funds brokers of recognized standing selected by
the Liquidity Provider, plus (b) one quarter of one percent (0.25%)
per annum.
"Base Rate Advance" means an Advance that bears interest at
a rate based upon the Base Rate.
"Borrower" has the meaning assigned to such term in the
recital of parties to this Agreement.
"Borrowing" means the making of Advances requested by
delivery of a Notice of Borrowing.
"Business Day" means any day other than a Saturday or Sunday
or a day on which commercial banks are required or authorized to
close in New York, New York, Minneapolis, Minnesota, Chicago,
Illinois, Boston, Massachusetts and Salt Lake City, Utah, or, so long
as any Class G Certificate is outstanding, the city and state in
which the Class G Trustee, the Borrower or any Loan Trustee maintains
its Corporate Trust Office or receives or disburses funds, and, if
the applicable Business Day relates to any Advance or other amount
bearing interest based on the LIBOR Rate, on which dealings are
carried on in the London interbank market.
"Consent Notice" has the meaning assigned to such term in
Section 2.10.
"Consent Period" has the meaning assigned to such term in
Section 2.10.
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"Delivery Period" means the period from the date hereof
through September 30, 2001.
"Deposit Agreement" means the Deposit Agreement, dated June
28, 2000, between First Security Bank, National Association, as
Escrow Agent and ABN AMRO Bank N.V., acting through an United States
branch, as Depositary, pertaining to the Class G Certificates, as the
same may be amended, modified or supplemented from time to time in
accordance with the terms thereof.
"Depositary" has the meaning assigned to such term in the
Deposit Agreement.
"Deposits" has the meaning assigned to such terms in the
Deposit Agreement.
"Downgrade Advance" means an Advance made pursuant to
Section 2.2(c).
"Effective Date" has the meaning specified in Section 4.1.
The delivery of the certificate of the Liquidity Provider
contemplated by Section 4.1(e) shall be conclusive evidence that the
Effective Date has occurred.
"Excluded Taxes" means (i) Taxes imposed on the overall net
income of the Liquidity Provider and (ii) Excluded Withholding Taxes.
"Excluded Withholding Taxes" means (i) withholding Taxes
imposed by the United States except to the extent that such United
States withholding Taxes are imposed as a result of any change in
applicable law (excluding from "change in applicable law" for this
purpose, a change in an applicable treaty or other change in law
affecting the applicability of a treaty) after the date hereof, or in
the case of a successor Liquidity Provider (including a transferee of
an Advance) or Lending Office, after the date on which such successor
Liquidity Provider obtains its interest or on which the Lending
Office is changed, and (ii) any withholding Taxes imposed by the
United States which are imposed or increased as a result of the
Liquidity Provider failing to deliver to the Borrower any certificate
or document (which certificate or document in the good faith judgment
of the Liquidity Provider it is legally entitled to provide) which is
reasonably requested by the Borrower to establish that payments under
this Agreement are exempt from (or entitled to a reduced rate of)
withholding Tax.
"Expenses" means liabilities, obligations, damages,
settlements, penalties, claims, actions, suits, costs, expenses, and
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disbursements (including, without limitation, reasonable fees and
disbursements of legal counsel and costs of investigation), provided
that Expenses shall not include any Taxes.
"Expiry Date" means June 27, 2001, initially, or any date to
which the Expiry Date is extended pursuant to Section 2.10.
"Extension Notice" has the meaning assigned to such term in
Section 2.10.
"Fee Letter" means the Fee Letter dated as of the date
hereof among the Liquidity Provider, the Borrower and Northwest with
respect to the Liquidity Facilities.
"Final Advance" means an Advance made pursuant to Section
2.2(d).
"Intercreditor Agreement" means the Intercreditor Agreement
dated the date hereof, among the Trustees, the Liquidity Provider,
the liquidity provider under each Liquidity Facility (other than this
Agreement), the Policy Provider and the Subordination Agent, as the
same may be amended, supplemented or otherwise modified from time to
time in accordance with its terms.
"Interest Advance" means an Advance made pursuant to Section
2.2(a).
"Interest Period" means, with respect to any LIBOR Advance,
each of the following periods:
(i) the period beginning on the third Business Day
following the Liquidity Provider's receipt of the
Notice of Borrowing for such LIBOR Advance and
ending on the next Regular Distribution Date; and
(ii) each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending
on the next Regular Distribution Date;
provided, however, that (I) if an Unapplied Provider Advance which is
a LIBOR Advance becomes an Applied Provider Advance, the Interest
Period then applicable to such Unapplied Provider Advance shall be
applicable to such Applied Provider Advance and (II) if (x) the Final
Advance shall have been made, or (y) other outstanding Advances shall
have been converted into the Final Advance, then the Interest Periods
shall be successive periods of one month beginning on the third
Business Day following the Liquidity Provider's receipt of the Notice
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of Borrowing for such Final Advance (in the case of clause (x) above)
or the last day of the Interest Period then applicable to such
outstanding Advances (in the case of clause (y) above).
"Lending Office" means the lending office of the Liquidity
Provider presently located in New York, New York, or such other
lending office as the Liquidity Provider from time to time shall
notify the Borrower as its lending office hereunder.
"LIBOR Advance" means an Advance bearing interest at a rate
based upon the LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period, (i)
the rate per annum appearing on display page 3750 (British Bankers
Association--LIBOR) of the Dow Xxxxx Markets Service (or any
successor or substitute therefor) at approximately 11:00 A.M. (London
time) two Business Days before the first day of such Interest Period,
as the rate for dollar deposits with a maturity comparable to such
Interest Period, or (ii) if the rate calculated pursuant to clause
(i) above is not available, the average (rounded upwards, if
necessary, to the next 1/16 of 1%) of the rates per annum at which
deposits in dollars are offered for the relevant Interest Period by
three banks of recognized standing selected by the Liquidity Provider
in the London interbank market at approximately 11:00 A.M. (London
time) two business days before the first day of such Interest Period
in an amount approximately equal to the principal amount of the LIBOR
Advance to which such Interest Period is to apply and for a period
comparable to such Interest Period.
"Liquidity Event of Default" means the occurrence of the
following: (i) all of the Equipment Notes shall have been either
declared to be immediately due and payable or shall not have been
paid at their final maturity; provided that, if an acceleration of
the Equipment Notes occurs during the Delivery Period, a Liquidity
Event of Default shall occur only if the aggregate principal amount
of the Equipment Notes exceeds $300 million, or (ii) a Northwest
Bankruptcy Event.
"Liquidity Indemnitee" means (i) the Liquidity Provider,
(ii) the directors, officers, employees and agents of the Liquidity
Provider, and (iii) the successors and permitted assigns of the
persons described in clauses (i) and (ii), inclusive.
"Liquidity Provider" has the meaning assigned to such term
in the recital of parties to this Agreement.
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"Maximum Available Commitment" shall mean, subject to the
proviso contained in the third sentence of Section 2.2(a), at any
time of determination, (a) the Maximum Commitment at such time less
(b) the aggregate amount of each Interest Advance outstanding at such
time; provided that following a Provider Advance or a Final Advance,
the Maximum Available Commitment shall be zero.
"Maximum Commitment" means (i) in the case of any day
occurring before the first Regular Distribution Date, $56,682,995 and
(ii) in the case of any day occurring on or after the first Regular
Distribution Date, the Required Amount on such day.
"Non-Excluded Tax" has the meaning specified in Section
3.3(a).
"Non-Extension Advance" means an Advance made pursuant to
Section 2.2(b).
"Notice of Borrowing" has the meaning specified in Section
2.2(e).
"Notice of Replacement Subordination Agent" has the meaning
specified in Section 3.8.
"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.
"Prospectus Supplement" means the Prospectus Supplement
dated June 21, 2000, relating to the Class G Certificates and the
Class C Certificates, as such Prospectus Supplement may be amended or
supplemented.
"Provider Advance" means a Downgrade Advance or a Non-
Extension Advance.
"Replenishment Amount" has the meaning assigned to such term
in Section 2.6(b).
"Required Amount" means, for any day, the sum of the
aggregate amount of interest, calculated at the rate per annum equal
to the Stated Interest Rate for the Class G Certificates, that would
be payable on the Class G Certificates on each of the three
successive semiannual Regular Distribution Dates immediately
following such day or, if such day is a Regular Distribution Date, on
such day and the succeeding two semiannual Regular Distribution
Dates, in each case calculated on the basis of the Pool Balance of
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the Class G Certificates on such day and without regard to expected
future payments of principal on the Class G Certificates.
Notwithstanding the above, in the event of a Policy Provider
Election, the Pool Balance, for purposes of this definition, shall be
deemed to be reduced by an amount (if positive) by which (a) the then
outstanding principal balance of the Series G Equipment Note in
respect of which the Policy Provider Election has been made shall
exceed (b) the amount of any policy drawings previously paid by the
Policy Provider in respect of principal on such Series G Equipment
Note.
"Tax Letter" means the letter dated the date hereof
between the Liquidity Provider and Northwest pertaining to this
Agreement.
"Termination Date" means the earliest to occur of the
following: (i) the Expiry Date; (ii) the date on which the Borrower
delivers to the Liquidity Provider a certificate, signed by a
Responsible Officer of the Borrower, certifying that all of the Class
G Certificates have been paid in full (or provision has been made for
such payment in accordance with the Intercreditor Agreement and the
Trust Agreements) or are otherwise no longer entitled to the benefits
of this Agreement; (iii) the date on which the Borrower delivers to
the Liquidity Provider a certificate, signed by a Responsible Officer
of the Borrower, certifying that a Replacement Liquidity Facility has
been substituted for this Agreement in full pursuant to Section
3.6(e) of the Intercreditor Agreement; (iv) the fifth Business Day
following the receipt by the Borrower of a Termination Notice from
the Liquidity Provider pursuant to Section 6.1 hereof; and (v) the
date on which no Advance is or may (including by reason of
reinstatement as herein provided) become available for a Borrowing
hereunder.
"Termination Notice" means the Notice of Termination
substantially in the form of Annex V to this Agreement.
"Transferee" has the meaning assigned to such term in
Section 7.8(b).
"Unapplied Downgrade Advance" means any Downgrade Advance
other than an Applied Downgrade Advance.
"Unapplied Provider Advance" means any Provider Advance
other than an Applied Provider Advance.
"Unpaid Advance" has the meaning assigned to such term in
Section 2.5.
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"Withdrawal Notice" has the meaning assigned to such term in
Section 2.10.
(b) Terms Defined in the Intercreditor Agreement. For
all purposes of this Agreement, the following terms shall have the respective
meanings assigned to such terms in the Intercreditor Agreement:
"Acceleration", "Certificates","Class C Certificates", "Class G Cash
Collateral Account", "Class G Certificates", "Class G
Certificateholders", "Class G Trust", "Class G Trust Agreement",
"Class G Trustee", "Closing Date", "Controlling Party", "Corporate
Trust Office", "Delivery Period Expiry Date", "Distribution Date",
"Downgraded Facility", "Equipment Notes", "Final Legal Distribution
Date", "Financing Agreement", "Indenture", "Interest Payment Date",
"Investment Earnings", "Liquidity Facility", "Liquidity Obligations",
"Loan Trustee", "Xxxxx'x", "Non-Extended Facility", "Northwest",
"Northwest Bankruptcy Event", "Note Purchase Agreement", "Operative
Agreements", "Performing Equipment Note", "Person", "Policy", "Policy
Provider", "Policy Provider Election", "Pool Balance", "Rating
Agency", "Ratings Confirmation", "Regular Distribution Date",
"Replacement Liquidity Facility", "Responsible Officer", "Scheduled
Payment", "Special Payment", "Standard & Poor's", "Stated Interest
Rate", "Subordination Agent", "Taxes", "Threshold Rating", "Trust
Agreements", "Trustee", "Underwriters", "Underwriting Agreement" and
"Written Notice".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.1 The Advances. The Liquidity Provider hereby
irrevocably agrees, on the terms and conditions hereinafter set forth, to
make Advances to the Borrower from time to time on any Business Day during
the period from the Effective Date until 12:00 Noon (New York City time) on
the Expiry Date (unless the obligations of the Liquidity Provider shall be
earlier terminated in accordance with the terms of Section 2.4(b)) in an
aggregate amount at any time outstanding not to exceed the Maximum
Commitment.
Section 2.2 Making the Advances. (a) Interest Advances
shall be made in one or more Borrowings by delivery to the Liquidity Provider
of one or more written and completed Notices of Borrowing in substantially
the form of Annex I attached hereto, signed by a Responsible Officer of the
Borrower, in an amount not exceeding the Maximum Available Commitment at such
time and shall be used solely for the payment when due of interest on the
Class G Certificates at the Stated Interest Rate therefor in accordance with
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Section 3.6(a) of the Intercreditor Agreement. Each Interest Advance made
hereunder shall automatically reduce the Maximum Available Commitment and the
amount available to be borrowed hereunder by subsequent Advances by the
amount of such Interest Advance (subject to reinstatement as provided in the
next sentence). Upon repayment to the Liquidity Provider in full of the
amount of any Interest Advance made pursuant to this Section 2.2(a),
together with accrued interest thereon (as provided herein), the Maximum
Available Commitment shall be reinstated by the amount of such repaid
Interest Advance, but not to exceed the Maximum Commitment; provided,
however, that the Maximum Available Commitment shall not be so reinstated at
any time if (i) a Liquidity Event of Default shall have occurred and be
continuing and (ii) there is a Performing Note Deficiency.
(b) A Non-Extension Advance shall be made in a single
Borrowing if this Agreement is not extended in accordance with Section 3.6(d)
of the Intercreditor Agreement (unless a Replacement Liquidity Facility to
replace this Agreement shall have been delivered to the Borrower as
contemplated by said Section 3.6(d) within the time period specified in such
Section) by delivery to the Liquidity Provider of a written and completed
Notice of Borrowing in substantially the form of Annex II attached hereto,
signed by a Responsible Officer of the Borrower, in an amount equal to the
Maximum Available Commitment at such time, and shall be used to fund the
Class G Cash Collateral Account in accordance with said Section 3.6(d) and
Section 3.6(f) of the Intercreditor Agreement.
(c) A Downgrade Advance shall be made in a single
Borrowing upon a downgrading of the Liquidity Provider's short-term unsecured
debt rating issued by either Rating Agency below the applicable Threshold
Rating (as provided for in Section 3.6(c) of the Intercreditor Agreement)
unless a Replacement Liquidity Facility to replace this Agreement shall have
been previously delivered to the Borrower in accordance with said Section
3.6(c), by delivery to the Liquidity Provider of a written and completed
Notice of Borrowing in substantially the form of Annex III attached hereto,
signed by a Responsible Officer of the Borrower, in an amount equal to the
Maximum Available Commitment at the time of such borrowing, and shall be used
to fund the Class G Cash Collateral Account in accordance with said Section
3.6(c) and Section 3.6(f) of the Intercreditor Agreement.
(d) A Final Advance shall be made in a single Borrowing
upon the receipt by the Borrower of a Termination Notice from the Liquidity
Provider pursuant to Section 6.1 hereof by delivery to the Liquidity
Provider of a written and completed Notice of Borrowing in substantially the
form of Annex IV attached hereto, signed by a Responsible Officer of the
Borrower, in an amount equal to the Maximum Available Commitment at such
time, and shall be used to fund the Class G Cash Collateral Account in
accordance with Section 3.6(i) and Section 3.6(f) of the Intercreditor
Agreement.
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(e) Each Borrowing shall be made on notice in writing (a
"Notice of Borrowing") in substantially the form required by Section 2.2(a),
2.2(b), 2.2(c) or 2.2(d), as the case may be, given by the Borrower to the
Liquidity Provider. If a Notice of Borrowing is delivered by the Borrower in
respect of any Borrowing no later than 10:00 a.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 Liquidity Provider
shall make available to the Borrower, in accordance with its payment
instructions, the amount of such Borrowing in U.S. dollars and immediately
available funds, before 4:00 p.m. (New York City time) on such Business Day
or on such later Business Day specified in such Notice of Borrowing. If a
Notice of Borrowing is delivered by the Borrower in respect of any Borrowing
after 10:00 a.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 Liquidity Provider shall make available to the
Borrower, in accordance with its payment instructions, the amount of such
Borrowing in U.S. dollars and immediately available funds, before 12:00 Noon
(New York City time) on the first Business Day next following the day of
receipt of such Notice of Borrowing or on such later Business Day specified
by the Borrower in such Notice of Borrowing. Payments of proceeds of a
Borrowing shall be made by wire transfer of immediately available funds to
the Borrower in accordance with such wire transfer instructions as the
Borrower shall furnish from time to time to the Liquidity Provider for such
purpose. Each Notice of Borrowing shall be irrevocable and binding on the
Borrower.
(f) Upon the making of any Advance requested pursuant to
a Notice of Borrowing, in accordance with the Borrower's payment
instructions, the Liquidity Provider shall be fully discharged of its
obligation hereunder with respect to such Notice of Borrowing, and the
Liquidity Provider shall not thereafter be obligated to make any further
Advances hereunder in respect of such Notice of Borrowing to the Borrower or
to any other Person. If the Liquidity Provider makes an Advance requested
pursuant to a Notice of Borrowing before 12:00 Noon ( New York City time) on
the second Business Day after the date of payment specified in said Section
2.02(e), the Liquidity Provider shall have fully discharged its obligations
hereunder with respect to such Advance and an event of default shall not have
occurred hereunder. Following the making of any Advance pursuant to Section
2.02(b), (c) or (d) hereof to fund the Class G Cash Collateral Account, the
Liquidity Provider shall have no interest in or rights to the Class G Cash
Collateral Account, such Advance or any other amounts from time to time on
deposit in the Class G Cash Collateral Account; provided that the foregoing
shall not affect or impair the obligations of the Subordination Agent to make
the distributions contemplated by Section 3.6(e) or (f) of the Intercreditor
Agreement. By paying to the Borrower proceeds of Advances requested by the
Borrower in accordance with the provisions of this Agreement, the Liquidity
Provider makes no representation as to, and assumes no responsibility for,
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the correctness or sufficiency for any purpose of the amount of the Advances
so made and requested.
Section 2.3 Fees. The Borrower agrees to pay to the
Liquidity Provider the fees set forth in the Fee Letter.
Section 2.4 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 Pool
Balance of the Class G Certificates 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 Liquidity
Provider within two Business Days thereof. The failure by the Borrower to
furnish any such notice shall not affect such automatic reduction of the
Maximum Commitment.
(b) Termination. Upon the making of any Provider
Advance or Final Advance hereunder or the occurrence of the Termination Date,
the obligation of the Liquidity Provider to make further Advances hereunder
shall automatically and irrevocably terminate, and the Borrower shall not be
entitled to request any further Borrowing hereunder.
Section 2.5 Repayments of Interest Advances or the Final
Advance. Subject to Sections 2.6, 2.7 and 2.9 hereof, the Borrower hereby
agrees, without notice of an Advance or demand for repayment from the
Liquidity Provider (which notice and demand are hereby waived by the
Borrower), to pay, or to cause to be paid, to the Liquidity Provider on each
date on which the Liquidity Provider shall make an Interest Advance or the
Final Advance, an amount equal to (a) the amount of such Advance (any such
Advance, until repaid, is referred to herein as an "Unpaid Advance"), plus
(b) interest on the amount of each such Unpaid Advance as provided in Section
3.07 hereof; provided that if (i) the Liquidity Provider shall make a
Provider Advance at any time after making one or more Interest Advances which
shall not have been repaid in accordance with this Section 2.5 or (ii) this
Liquidity Facility shall become a Downgraded Facility or Non-Extended
Facility at any time when unreimbursed Interest Advances have reduced the
Maximum Available Commitment to zero, then such Interest Advances shall cease
to constitute Unpaid Advances and shall be deemed to have been changed into
an Applied Downgrade Advance or an Applied Non-Extension Advance, as the case
may be, for all purposes of this Agreement (including, without limitation,
for the purpose of determining when such Interest Advance is required to be
repaid to the Liquidity Provider in accordance with Section 2.06 and for the
purposes of Section 2.6(b)). The Borrower and the Liquidity Provider agree
that the repayment in full of each Interest Advance and Final Advance on the
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date such Advance is made is intended to be a contemporaneous exchange for
new value given to the Borrower by the Liquidity Provider.
Section 2.6 Repayments of Provider Advances. (a) Amounts
advanced hereunder in respect of a Provider Advance shall be deposited in the
Class G Cash Collateral Account, invested and withdrawn from the Class G Cash
Collateral Account as set forth in Sections 3.6(c), (d) and (f) of the
Intercreditor Agreement. The Borrower agrees to pay to the Liquidity
Provider, on each Regular Distribution Date, commencing on the first Regular
Distribution Date after the making of a Provider Advance, interest on the
principal amount of any such Provider Advance as provided in Section 3.7;
provided, however, that amounts in respect of a Provider Advance withdrawn
from the Class G Cash Collateral Account for the purpose of paying interest
on the Class G Certificates in accordance with Section 3.6(f) of the
Intercreditor Agreement (the amount of any such withdrawal being (y) in the
case of a Downgrade Advance, an "Applied Downgrade Advance" and (z) in the
case of a Non-Extension Advance, an "Applied Non-Extension Advance" and,
together with an Applied Downgrade Advance, an "Applied Provider Advance")
shall thereafter (subject to Section 2.6(b)) be treated as an Interest
Advance under this Agreement for purposes of determining the Applicable
Liquidity Rate for interest payable thereon; provided further, however, that
if, following the making of a Provider Advance, the Liquidity Provider
delivers a Termination Notice to the Borrower pursuant to Section 6.01
hereof, such Provider Advance shall thereafter be treated as a Final Advance
under this Agreement for purposes of determining the Applicable Liquidity
Rate for interest payable thereon. Subject to Sections 2.07 and 2.09 hereof,
immediately upon the withdrawal of any amounts from the Class G Cash
Collateral Account on account of a reduction in the Required Amount, the
Borrower shall repay to the Liquidity Provider a portion of the Provider
Advances in a principal amount equal to such reduction, plus interest on the
principal amount prepaid as provided in Section 3.7 hereof.
(b) At any time when an Applied Provider Advance (or any
portion thereof) is outstanding, upon the deposit in the Class G Cash
Collateral Account of any amount pursuant to clause "third" of Section 2.4(b)
of the Intercreditor Agreement, clause "third" of Section 3.2 of the
Intercreditor Agreement or clause "fourth" of Section 3.3 of the
Intercreditor Agreement (any such amount being a "Replenishment Amount") for
the purpose of replenishing or increasing the balance thereof up to the
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.
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(c) Upon the provision of a Replacement Liquidity
Facility in replacement of this Agreement in accordance with Section 3.6(e)
of the Intercreditor Agreement, amounts remaining on deposit in the Class G
Cash Collateral Account after giving effect to any Applied Provider Advance
on the date of such replacement shall be reimbursed to the Liquidity
Provider, but only to the extent such amounts are necessary to repay in full
to the Liquidity Provider all amounts owing to it hereunder.
Section 2.7 Payments to the Liquidity Provider Under the
Intercreditor Agreement. In order to provide for payment or repayment to the
Liquidity Provider of any amounts hereunder, the Intercreditor Agreement
provides that amounts available and referred to in Articles II and III of the
Intercreditor Agreement, to the extent payable to the Liquidity Provider
pursuant to the terms of the Intercreditor Agreement (including, without
limitation, Section 3.6(f) of the Intercreditor Agreement), shall be paid to
the Liquidity Provider in accordance with the terms thereof. Amounts so paid
to the Liquidity Provider shall be applied by the Liquidity Provider to
Liquidity Obligations then due and payable in accordance with the
Intercreditor Agreement or, if not provided for in the Intercreditor
Agreement, then in such manner as the Liquidity Provider shall deem
appropriate.
Section 2.8 Book Entries. The Liquidity Provider shall
maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower resulting from Advances made from
time to time and the amounts of principal and interest payable hereunder and
paid from time to time in respect thereof; provided, however, that the
failure by the Liquidity Provider to maintain such account or accounts shall
not affect the obligations of the Borrower in respect of Advances.
Section 2.9 Payments from Available Funds Only. All
payments to be made by the Borrower under this Agreement shall be made only
from the amounts that constitute Scheduled Payments, Special Payments or
payments under Section 7(c) of the Participation Agreements and Section 7 of
the Note Purchase Agreement and only to the extent that the Borrower shall
have sufficient income or proceeds therefrom to enable the Borrower to make
payments in accordance with the terms hereof after giving effect to the
priority of payments provisions set forth in the Intercreditor Agreement.
The Liquidity Provider agrees that it will look solely to such amounts to the
extent available for distribution to it as provided in the Intercreditor
Agreement and this Agreement and that the Borrower, in its individual
capacity, is not personally liable to it for any amounts payable or liability
under this Agreement except as expressly provided in this Agreement, the
Intercreditor Agreement or any Participation Agreement. Amounts on deposit
in the Class G Cash Collateral Account shall be available to the Borrower to
make payments under this Agreement only to the extent and for the purposes
expressly contemplated in Section 3.6(f) of the Intercreditor Agreement.
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Section 2.10 Extension of the Expiry Date; Non-Extension
Advance. The Borrower may, from time to time, by notice to the Liquidity
Provider (each such notice being an "Extension Notice") given no later than
the 40th day and no earlier than the 60th day prior to the then applicable
Expiry Date, request an extension of the Expiry Date to the earlier of (i)
the date which is 15 days after the Final Legal Distribution Date for the
Class G Certificates and (ii) the date that is the day immediately preceding
the 364th day occurring after the last day of the Consent Period (as
hereinafter defined). Whether or not the Liquidity Provider has received a
request from the Borrower, such Liquidity Provider may, but shall not be
obligated to, by a notice (a "Consent Notice") to the Borrower, given during
the period commencing on the date that is 60 days prior to the Expiry Date
then in effect and ending on the date that is 25 days prior to the Expiry
Date then in effect for such Liquidity Facility (such period, with respect to
such Liquidity Facility, the "Consent Period"), consent to such extension of
the Expiry Date, which consent may be given or withheld by the Liquidity
Provider in its absolute and sole discretion; provided, however, that such
extension shall not be effective with respect to the Liquidity Provider if by
a notice (a "Withdrawal Notice") to the Borrower during the Consent Period
the Liquidity Provider revokes its Consent Notice. If a Withdrawal Notice
has been given during the applicable Consent Period or if the Liquidity
Provider shall not have delivered a Consent Notice within the Consent Period
(and, in each case, if the Liquidity Provider shall not have been replaced in
accordance with Section 3.6(e) of the Intercreditor Agreement), the Borrower
shall be entitled on and after the date on which the Consent Period ends (but
prior to the then effective Expiry Date) to request a Non-Extension Advance
in accordance with Section 2.2(b) hereof and Section 3.6(d) of the
Intercreditor Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.1 Increased Costs. If the Liquidity Provider
shall determine that (a) any change after the date hereof in any law,
regulation, rule or directive or in the interpretation thereof by any court
or administrative or governmental authority charged with the administration
thereof or in the compliance by the Liquidity Provider (or its head office)
with any applicable direction, request or requirement (whether or not having
the force of law) of any central bank or competent governmental or other
authority shall either (i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets held by, or deposits in
or for the account of, or loans made by, the Liquidity Provider, or (ii)
impose on the Liquidity Provider any other condition regarding this Agreement
or any Advance, or (iii) subject the Liquidity Provider to any Taxes with
respect to amounts payable or paid or change the basis of taxation of any
amounts payable to the Liquidity Provider (other than Excluded Taxes) and (b)
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the result of any event referred to in the preceding clauses (i), (ii) or
(iii) shall be to increase the cost to the Liquidity Provider of issuing or
maintaining its commitment or funding or maintaining Advances (which increase
in cost shall be determined by the Liquidity Provider's reasonable
allocations of the aggregate of such cost increases resulting from such
event), then, upon demand by the Liquidity Provider (such demand to be made
not later than 180 days after a Responsible Officer of the Liquidity Provider
obtains actual knowledge of any event referred to in clause (i), (ii) or
(iii) above), the Borrower shall pay, or cause to be paid, to the Liquidity
Provider, from time to time as specified by the Liquidity Provider,
additional amounts which shall be sufficient to compensate the Liquidity
Provider for such increased cost; provided that if such demand for payment is
made after such 180-day period, the Borrower shall be obligated to pay such
additional amounts only with respect to such increased cost actually incurred
or effected on or after the 180th day prior to the date of such demand. A
certificate as to such increased cost incurred by the Liquidity Provider as a
result of any event mentioned in clauses (i), (ii) or (iii) above, prepared
in reasonable detail and submitted by the Liquidity Provider to the Borrower,
shall be conclusive evidence of the amount owed under this Section, absent
manifest error.
The Liquidity Provider agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions)
to change the jurisdiction of its Lending Office if making such change would
avoid the need for, or reduce the amount of, any amount payable under this
Section 3.01 that may thereafter accrue and would not, in the reasonable
judgment of the Liquidity Provider, be otherwise disadvantageous to the
Liquidity Provider.
Section 3.2 Capital Adequacy. If the Liquidity Provider
shall determine that the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Liquidity Provider (or its head
office) with any request or directive regarding capital adequacy (whether or
not having the force of law) of any such authority, central bank or
comparable agency, in each case after the date hereof, has the effect of
reducing the rate of return on the Liquidity Provider's capital as a
consequence of issuing or maintaining its commitment hereunder or its funding
or maintaining Advances to a level below that which the Liquidity Provider
could have achieved but for such adoption, change or compliance (taking into
consideration the Liquidity Provider's policies with respect to capital
adequacy) by an amount deemed by the Liquidity Provider to be material, then,
upon demand by the Liquidity Provider, the Borrower shall pay to the
Liquidity Provider, from time to time as specified by the Liquidity Provider,
additional amounts which shall be sufficient to compensate the Liquidity
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Provider for such reduction in respect of issuing or maintaining its
commitment hereunder or its funding or maintaining Advances. A certificate
as to any such additional amount describing the event which has the effect of
reducing the rate of return on the Liquidity Provider's capital, prepared in
reasonable detail and submitted by the Liquidity Provider to the Borrower,
shall be conclusive evidence of the amount owed under this Section, absent
manifest error.
The Liquidity Provider agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions)
to change the jurisdiction of its Lending Office if making such change would
avoid the need for, or reduce the amount of, any amount payable under this
Section 3.02 that may thereafter accrue and would not, in the reasonable
judgment of the Liquidity Provider, be otherwise materially disadvantageous
to the Liquidity Provider.
Section 3.3 Payments Free of Deductions. (a) All payments
made by the Borrower under this Agreement shall be made free and clear of,
and without reduction for or on account of, any present or future stamp or
other taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, restrictions or conditions of any nature whatsoever now or
hereafter imposed, levied, collected, withheld or assessed, excluding
Excluded Taxes (such non-excluded taxes being referred to herein,
collectively, as "Non-Excluded Taxes" and, individually, as a "Non-Excluded
Tax"). If any Non-Excluded Taxes are required to be withheld from any
amounts payable to the Liquidity Provider under this Agreement, the amounts
so payable to the Liquidity Provider shall be increased to the extent
necessary to yield to the Liquidity Provider (after payment of all Non-
Excluded Taxes and taxes imposed on the receipt of such increase) interest or
any other such amounts payable under this Agreement at the rates or in the
amounts specified in this Agreement. The Liquidity Provider agrees to use
reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its Lending Office if
making such change would avoid the need for, or reduce the amount of, any
such additional amounts that may thereafter accrue and would not, in the
reasonable judgment of the Liquidity Provider, be otherwise disadvantageous
to the Liquidity Provider. From time to time upon the reasonable request of
the Borrower, the Liquidity Provider agrees to provide to the Borrower, to
the extent that the Liquidity Provider is legally entitled to do so, two
original Internal Revenue Service Forms W-8BEN or W-8ECI, as appropriate, or
any successor or other form prescribed by the Internal Revenue Service,
certifying that the Liquidity Provider is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to this
Agreement.
(b) All payments (including, without limitation,
Advances) made by the Liquidity Provider under this Agreement shall be made
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free and clear of, and without reduction for or on account of, any Taxes. If
any Taxes are required to be withheld or deducted from any amounts payable to
the Borrower under this Agreement, the Liquidity Provider shall (i) within
the time prescribed therefor by applicable law pay to the appropriate
governmental or taxing authority the full amount of any such Taxes (and any
additional Taxes in respect of the payment required under clause (ii) hereof)
and make such reports or returns in connection therewith at the time or times
and in the manner prescribed by applicable law, and (ii) pay to the Borrower
an additional amount which (after deduction of all such Taxes) will be
sufficient to yield to the Borrower the full amount which would have been
received by it had no such withholding or deduction been made. Within 30
days after the date of each payment hereunder, the Liquidity Provider shall
furnish to the Borrower the original or a certified copy of (or other
documentary evidence of) the payment of the Taxes applicable to such payment.
Section 3.4 Payments. The Borrower shall make or cause to
be made each payment to the Liquidity Provider under this Agreement so as to
cause the same to be received by the Liquidity Provider not later than 1:00
P.M. (New York City time) on the day when due. The Borrower shall make all
such payments in lawful money of the United States of America, to the
Liquidity Provider in immediately available funds, by wire transfer to Credit
Suisse First Boston, New York branch, ABA #000000000, Account No. 890-0329-
262, CSFB NY Loan Clearing, Reference: Northwest Airlines Liquidity Facility
2000-1G.
Section 3.5 Computations. All computations of interest
based on the Base Rate shall be made on the basis of a year of 365 or 366
days, as the case may be, and all computations of 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 3.6 Payment on Non-Business Days. Whenever any
payment to be made hereunder shall be stated to be due on a day other than a
Business Day, such payment shall be made on the next succeeding Business Day
and no additional interest shall be due as a result (and if so made, shall be
deemed to have been made when due). If any payment in respect of interest on
an Advance is so deferred to the next succeeding Business Day, such deferral
shall not delay the commencement of the next Interest Period for such Advance
(if such Advance is a LIBOR Advance) or reduce the number of days for which
interest will be payable on such Advance on the next interest payment date
for such Advance.
Section 3.7 Interest. (a) Subject to Section 2.9, 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
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and including the date on which the amount thereof was withdrawn from the
Class G Cash Collateral Account to pay interest on the Class G Certificates)
to but excluding the date such principal amount shall be paid in full (or, in
the case of an Applied Provider Advance, the date on which the Class G Cash
Collateral Account is fully replenished in respect of such Advance) and (ii)
any other amount due hereunder (whether fees, commissions, expenses or other
amounts or, to the extent permitted by law, installments of interest on
Advances or any such other amount) which is not paid when due (whether at
stated maturity, by acceleration or otherwise) from and including the due
date thereof to but excluding the date such amount is paid in full, in each
such case, at a fluctuating interest rate per annum for each day equal to the
Applicable Liquidity Rate (as defined below) for such Advance or such other
amount as in effect for such day, but in no event at a rate per annum greater
than the maximum rate permitted by applicable law; provided, however, that,
if at any time the otherwise applicable interest rate as set forth in this
Section 3.7 shall exceed the maximum rate permitted by applicable law, then
any subsequent reduction in such interest rate will not reduce the rate of
interest payable pursuant to this Section 3.7 below the maximum rate
permitted by applicable law until the total amount of interest accrued equals
the amount of interest that would have accrued if such otherwise applicable
interest rate as set forth in this Section 3.7 had at all times been in
effect.
(b) Each Advance will be either a Base Rate Advance or a
LIBOR Advance as provided in this Section. Each such Advance will be a Base
Rate Advance for the period from the date of its borrowing to (but excluding)
the third Business Day following the Liquidity Provider s receipt of the
Notice of Borrowing for such Advance. Thereafter, such Advance shall be a
LIBOR Advance; provided that (i) an Applied Provider Advance shall always be
a LIBOR Advance unless the Borrower elects otherwise and (ii) the Borrower
(at the direction of the Controlling Party, so long as the Liquidity Provider
is not the Controlling Party) may (x) convert the Final Advance into a Base
Rate Advance on the last day of an Interest Period for such Advance by giving
the Liquidity Provider no less than four Business Days prior written notice
of such election or (y) elect to maintain the Final Advance as a Base Rate
Advance by not requesting a conversion of the Final Advance to a LIBOR
Advance under Clause (5) of the applicable Notice of Borrowing (or, if such
Final Advance is deemed to have been made, without delivery of a Notice of
Borrowing pursuant to Section 2.6, by requesting, prior to 11:00 A.M. on the
first Business Day immediately following the Borrower's receipt of the
applicable Termination Notice, that such Final Advance not be converted from
a Base Rate Advance to a LIBOR Advance).
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(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 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 2.0%
until paid.
(f) Each change in the Base Rate shall become effective
immediately. The rates of interest specified in this Section 3.7 with
respect to any Advance or other amount shall be referred to as the
"Applicable Liquidity Rate".
Section 3.8 Replacement of Borrower. From time to time and
subject to the successor Borrower s meeting the eligibility requirements set
forth in Section 6.9 of the Intercreditor Agreement applicable to the
Subordination Agent, upon the effective date and time specified in a written
and completed Notice of Replacement Subordination Agent in substantially the
form of Annex VI attached hereto (a "Notice of Replacement Subordination
Agent") delivered to the Liquidity Provider by the then Borrower, the
successor Borrower designated therein shall be substituted for as the
Borrower for all purposes hereunder.
Section 3.9 Funding Loss Indemnification. The Borrower
shall pay to the Liquidity Provider, upon the request of the Liquidity
Provider, such amount or amounts as shall be sufficient (in the reasonable
opinion of the Liquidity Provider) to compensate it for any loss, cost, or
expense incurred as a result of:
(1) Any repayment of a LIBOR Advance on a date other
than the last day of the Interest Period for such Advance; or
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(2) Any failure by the Borrower to borrow a LIBOR
Advance on the date for borrowing specified in the relevant notice
under Section 2.2.
Section 3.10 Illegality. Notwithstanding any other
provision in this Agreement, if any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by the Liquidity
Provider (or its Lending Office) with any request or directive (whether or
not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for the Liquidity
Provider (or its Lending Office) to maintain or fund its LIBOR Advances, then
upon notice to the Borrower by the Liquidity Provider, the outstanding
principal amount of the LIBOR Advances shall be converted to Base Rate
Advances (a) immediately upon demand of the Liquidity Provider, if such
change or compliance with such request, in the judgment of the Liquidity
Provider, requires immediate repayment; or (b) at the expiration of the last
Interest Period to expire before the effective date of any such change or
request.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1 Conditions Precedent to Effectiveness of
Section 2.1. Section 2.1 of this Agreement shall become effective on and
as of the first date (the "Effective Date") on which the following conditions
precedent have been satisfied or waived:
(a) The Liquidity Provider shall have received on or
before the Closing Date each of the following, and in the case of
each document delivered pursuant to paragraphs (i), (ii) and (iii),
each in form and substance satisfactory to the Liquidity Provider:
(i) This Agreement duly executed on behalf of
the Borrower;
(ii) The Intercreditor Agreement duly executed
on behalf of each of the parties thereto;
(iii) Fully executed copies of each of the
Operative Agreements executed and delivered on or before the
Closing Date (other than this Agreement and the
Intercreditor Agreement);
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(iv) A copy of the Prospectus Supplement and
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, other than the
opinion of counsel for the Underwriters, either addressed to
the Liquidity Provider or accompanied by a letter from the
counsel rendering such opinion to the effect that the
Liquidity Provider is entitled to rely on such opinion as of
its date as if it were addressed to the Liquidity Provider);
(vi) Evidence that there shall have been made
and shall be in full force and effect, all filings,
recordings and/or registrations, and there shall have been
given or taken any notice or other similar action as may be
reasonably necessary or, to the extent reasonably requested
by the Liquidity Provider, reasonably advisable, in order to
establish, perfect, protect and preserve the right, title
and interest, remedies, powers, privileges, liens and
security interests of, or for the benefit of, the Trustees,
the Borrower and the Liquidity Provider created by the
Operative Agreements executed and delivered on or prior to
the Closing Date;
(vii) A letter from Northwest Airlines
Corporation, pursuant to which (i) Northwest Airlines
Corporation agrees to provide copies of quarterly financial
statements and audited annual financial statements to the
Liquidity Provider, and such other information as the
Liquidity Provider shall reasonably request with respect to
the transactions contemplated by the Operative Agreements,
in each case, only to the extent that Northwest Airlines
Corporation is obligated to provide such information
pursuant to Section 16 of the Leases (related to Leased
Aircraft) or the corresponding section of the Indentures
(related to Owned Aircraft) to the parties thereto; and
(viii) Such other documents, instruments, opinions
and approvals pertaining to the transactions contemplated
hereby or by the other Operative Agreements as the Liquidity
Provider shall have reasonably requested.
(b) The following statement shall be true on and as of
the Effective Date: no event has occurred and is continuing, or would
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result from the entering into of this Agreement or the making of any
Advance, which constitutes a Liquidity Event of Default.
(c) The Liquidity Provider shall have received payment
in full of all fees and other sums required to be paid to or for the
account of the Liquidity Provider on or prior to the Effective Date.
(d) All conditions precedent to the issuance of the
Certificates under the Trust Agreements shall have been satisfied or
waived, all conditions precedent to the effectiveness of the other
Liquidity Facilities shall have been satisfied or waived, and all
conditions precedent to the purchase of the Class G Certificates and
Class C Certificates by the Underwriters under the Underwriting
Agreement shall have been satisfied (unless any of such conditions
precedent shall have been waived by the Underwriters).
(e) The Borrower shall have received a certificate,
dated the date hereof, signed by a duly authorized representative of
the Liquidity Provider, certifying that all conditions precedent to
the effectiveness of Section 2.1 have been satisfied or waived.
Section 4.2 Conditions Precedent to Borrowing. The
obligation of the Liquidity Provider to make an Advance on the occasion of
each Borrowing shall be subject to the conditions precedent that the
Effective Date shall have occurred and, prior to the date of such Borrowing,
the Borrower shall have delivered a Notice of Borrowing which conforms to the
terms and conditions of this Agreement and has been completed as may be
required by the relevant form of the Notice of Borrowing for the type of
Advances requested.
ARTICLE V
COVENANTS
Section 5.1 Affirmative Covenants of the Borrower. So long
as any Advance shall remain unpaid or the Liquidity Provider shall have any
Maximum Commitment hereunder or the Borrower shall have any obligation to pay
any amount to the Liquidity Provider hereunder, the Borrower will, unless the
Liquidity Provider shall otherwise consent in writing:
(a) Performance of This and Other Agreements.
Punctually pay or cause to be paid all amounts payable by it under
this Agreement and the other Operative Agreements and observe and
perform in all material respects the conditions, covenants and
requirements applicable to it contained in this Agreement and the
other Operative Agreements.
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(b) Reporting Requirements. Furnish to the Liquidity
Provider with reasonable promptness, such other information and data
with respect to the transactions contemplated by the Operative
Agreements as from time to time may be reasonably requested by the
Liquidity Provider; and permit the Liquidity Provider, upon
reasonable notice, to inspect the Borrower s books and records with
respect to such transactions and to meet with officers and employees
of the Borrower to discuss such transactions.
(c) Certain Operative Agreements. Furnish to the
Liquidity Provider with reasonable promptness, such Operative
Agreements entered into after the date hereof as from time to time
may be reasonably requested by the Liquidity Provider.
Section 5.2 Negative Covenants of the Borrower. So long as
any Advance shall remain unpaid or the Liquidity Provider shall have any
Maximum Commitment hereunder or the Borrower shall have any obligation to pay
any amount to the Liquidity Provider hereunder, the Borrower will not appoint
or permit or suffer to be appointed any successor Borrower without the prior
written consent of the Liquidity Provider, which consent shall not be
unreasonably withheld or delayed.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.1 Liquidity Events of Default. If (a) any
Liquidity Event of Default has occurred and is continuing and (b) there is a
Performing Note Deficiency, the Liquidity Provider may, in its discretion,
deliver to the Borrower a Termination Notice, the effect of which shall be to
cause (i) this Agreement to expire on the fifth Business Day after the date
on which such Termination Notice is received by the Borrower, (ii) the
Borrower to promptly request, and the Liquidity Provider to promptly make, a
Final Advance in accordance with Section 2.2(d) hereof and Section 3.6(i) of
the Intercreditor Agreement, (iii) all other outstanding Advances to be
automatically converted into Final Advances for purposes of determining the
Applicable Liquidity Rate for interest payable thereon, and (iv) subject to
Sections 2.7 and 2.9 hereof, all Advances (including, without limitation,
any Provider Advance and Applied Provider Advance), any accrued interest
thereon and any other amounts outstanding hereunder to become immediately due
and payable to the Liquidity Provider.
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ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendments, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Liquidity Provider, and, in the case of an
amendment or of a waiver by the Borrower, the Borrower, and then such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given.
Section 7.2 Notices, Etc. Except as otherwise expressly
provided herein, all notices and other communications provided for hereunder
shall be in writing (including telecopier and mailed or delivered or sent by
telecopier):
Borrower: STATE STREET BANK AND TRUST COMPANY
Xxx Xxxxxxxxxxxxx Xxxxx
0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
Liquidity Provider: CREDIT SUISSE FIRST BOSTON
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx and Xxxxx Gogolia
Telecopy: (000) 000-0000
or, as to each of the foregoing, at such other address as shall be designated
by such Person in a written notice to the others. All such notices and
communications shall be effective (i) if given by telecopier, when
transmitted to the telecopier number specified above, (ii) if given by mail,
when deposited in the mails addressed as specified above, and (iii) if given
by other means, when delivered at the address specified above, except that
written notices to the Liquidity Provider pursuant to the provisions of
Articles II and III hereof shall not be effective until received by the
Liquidity Provider. A copy of all notices delivered hereunder to either
party shall in addition be delivered to each of the parties to the
Participation Agreements at their respective addresses set forth therein.
Section 7.3 No Waiver; Remedies. No failure on the part of
the Liquidity Provider to exercise, and no delay in exercising, any right
under this Agreement shall operate as a waiver thereof; nor shall any single
or partial exercise of any right under this Agreement preclude any other or
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further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
Section 7.4 Further Assurances. The Borrower agrees to do
such further acts and things and to execute and deliver to the Liquidity
Provider such additional assignments, agreements, powers and instruments as
the Liquidity Provider may reasonably require or deem advisable to carry into
effect the purposes of this Agreement and the other Operative Agreements or
to better assure and confirm unto the Liquidity Provider its rights, powers
and remedies hereunder and under the other Operative Agreements.
Section 7.5 Indemnification; Survival of Certain
Provisions. The Liquidity Provider shall be indemnified hereunder to the
extent and in the manner described in Section 7(c) of the Participation
Agreements. In addition, the Borrower agrees to indemnify, protect, defend
and hold harmless the Liquidity Provider from, against and in respect of, and
shall pay on demand, all Expenses of any kind or nature whatsoever (other
than any Expenses of the nature described in Sections 3.1, 3.2 or 7.7
hereof or in the Fee Letter (regardless of whether indemnified against
pursuant to said Sections or in the Fee Letter)), that may be imposed,
incurred by or asserted against any Liquidity Indemnitee, in any way relating
to, resulting from, or arising out of or in connection with any action, suit
or proceeding by any third party against such Liquidity Indemnitee and
relating to this Agreement, the Fee Letter, the Intercreditor Agreement or
any Financing Agreement; provided, however, that the Borrower shall not be
required to indemnify, protect, defend and hold harmless any Liquidity
Indemnitee in respect of any Expense of such Liquidity Indemnitee to the
extent such Expense is (i) attributable to the gross negligence or willful
misconduct of such Liquidity Indemnitee or any other Liquidity Indemnitee,
(ii) ordinary and usual operating overhead expense, or (iii) attributable to
the failure by such Liquidity Indemnitee or any other Liquidity Indemnitee to
perform or observe any agreement, covenant or condition on its part to be
performed or observed in this Agreement, the Fee Letter, the Intercreditor
Agreement or any other Operative Agreement to which it is a party. The
indemnities contained in Section 7(c) of the Participation Agreements, and
the provisions of Sections 3.1, 3.2, 3.3, 3.9, 7.5 and 7.7 hereof,
shall survive the termination of this Agreement.
Section 7.6 Liability of the Liquidity Provider.
(a) Neither the Liquidity Provider nor any of its officers, employees,
directors or affiliates shall be liable or responsible for: (i) the use
which may be made of the Advances or any acts or omissions of the Borrower or
any beneficiary or transferee in connection therewith; (ii) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even
if such documents should prove to be in any or all respects invalid,
insufficient, fraudulent or forged; or (iii) the making of Advances by the
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Liquidity Provider against delivery of a Notice of Borrowing and other
documents which do not comply with the terms hereof; provided, however, that
the Borrower shall have a claim against the Liquidity Provider, and the
Liquidity Provider shall be liable to the Borrower, to the extent of any
damages suffered by the Borrower which were the result of (A) the Liquidity
Provider s willful misconduct or negligence in determining whether documents
presented hereunder comply with the terms hereof, or (B) any breach by the
Liquidity Provider of any of the terms of this Agreement, including, but not
limited to, the Liquidity Provider s failure to make lawful payment hereunder
after the delivery to it by the Borrower of a Notice of Borrowing strictly
complying with the terms and conditions hereof.
(b) Neither the Liquidity Provider nor any of its
officers, employees, directors or affiliates shall be liable or responsible
in any respect for (i) any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with this Agreement or any Notice of Borrowing
delivered hereunder, or (ii) any action, inaction or omission which may be
taken by it in good faith, absent willful misconduct or negligence (in which
event the extent of the Liquidity Provider s potential liability to the
Borrower shall be limited as set forth in the immediately preceding
paragraph), in connection with this Agreement or any Notice of Borrowing.
Section 7.7 Costs, Expenses and Taxes. The Borrower agrees
to pay, or cause to be paid (A) on the Effective Date and on such later date
or dates on which the Liquidity Provider shall make demand, all reasonable
out-of-pocket costs and expenses (including, without limitation, the
reasonable fees and expenses of outside counsel for the Liquidity Provider)
of the Liquidity Provider in connection with the preparation, negotiation,
execution, delivery, filing and recording of this Agreement, any other
Operative Agreement and any other documents which may be delivered in
connection with this Agreement and (B) on demand, all reasonable costs and
expenses (including reasonable counsel fees and expenses) of the Liquidity
Provider in connection with (i) the enforcement of this Agreement or any
other Operative Agreement, (ii) the modification or amendment of, or
supplement to, this Agreement or any other Operative Agreement or such other
documents which may be delivered in connection herewith or therewith (whether
or not the same shall become effective) or (iii) any action or proceeding
relating to any order, injunction, or other process or decree restraining or
seeking to restrain the Liquidity Provider from paying any amount under this
Agreement, the Intercreditor Agreement or any other Operative Agreement or
otherwise affecting the application of funds in the Class G Cash Collateral
Account. In addition, the Borrower shall pay any and all recording, stamp
and other similar taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing and recording of this
Agreement, any other Operative Agreement and such other documents, and agrees
to save the Liquidity Provider harmless from and against any and all
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liabilities with respect to or resulting from any delay in paying or omission
to pay such taxes or fees.
Section 7.8 Binding Effect; Participations. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrower and
the Liquidity Provider and their respective successors and assigns, except
that neither the Liquidity Provider (except as otherwise provided in this
Section 7.8) nor (except as contemplated by Section 3.8) the Borrower shall
have the right to assign its rights or obligations hereunder or any interest
herein without the prior written consent of the other party, subject to the
requirements of Section 7.8(b). The Liquidity Provider may grant
participations herein or in any of its rights hereunder (including, without
limitation, funded participations and participations in rights to receive
interest payments hereunder) and under the other Operative Agreements to such
Persons as the Liquidity Provider may in its sole discretion select (but
excluding Northwest and any of its affiliates), subject to the requirements
of Section 7.8(b). No such participation by the Liquidity Provider,
however, will relieve the Liquidity Provider of its obligations hereunder.
In connection with any participation or any proposed participation, the
Liquidity Provider may disclose to the participant or the proposed
participant any information that the Borrower is required to deliver or to
disclose to the Liquidity Provider pursuant to this Agreement. The Borrower
acknowledges and agrees that the Liquidity Provider s source of funds may
derive in part from its participants. Accordingly, references in this
Agreement and the other Operative Agreements to determinations, reserve and
capital adequacy requirements, increased costs, reduced receipts, additional
amounts due pursuant to Section 3.3(a) and the like as they pertain to the
Liquidity Provider shall be deemed also to include those of each of its
participants (subject, in each case, to the maximum amount that would have
been incurred by or attributable to the Liquidity Provider directly if the
Liquidity Provider, rather than the participant, had held the interest
participated).
(b) If, pursuant to subsection (a) above, the Liquidity
Provider sells any participation in this Agreement to any bank or other
entity (each, a "Transferee"), then, concurrently with the effectiveness of
such participation, the Transferee shall (i) represent to the Liquidity
Provider (for the benefit of the Liquidity Provider and the Borrower) either
(A) that it is incorporated under the laws of the United States or a state
thereof or (B) that under applicable law and treaties, no taxes will be
required to be withheld with respect to any payments to be made to such
Transferee in respect of this Agreement, (ii) furnish to the Liquidity
Provider and the Borrower either (x) a statement that it is incorporated
under the laws of the United States or a state thereof or (y) if it is not so
incorporated, two copies of a properly completed United States Internal
Revenue Service Form W-8BEN or Form W-8ECI, as appropriate, or other
applicable form, certificate or document prescribed by the Internal Revenue
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Service certifying, in each case, such Transferee's entitlement to a complete
exemption from United States federal withholding tax in respect to any and
all payments to be made hereunder, and (iii) agree (for the benefit of the
Liquidity Provider and the Borrower) to provide the Liquidity Provider and
the Borrower a new Form W-8BEN or Form W-8ECI, as appropriate, (A) on or
before the date that any such form expires or becomes obsolete or (B) after
the occurrence of any event requiring a change in the most recent form
previously delivered by it and prior to the immediately following due date of
any payment by the Borrower hereunder, certifying in the case of a Form W-
8BEN or Form W-8ECI that such Transferee is entitled to a complete exemption
from United States federal withholding tax on payments under this Agreement.
Unless the Borrower has received forms or other documents reasonably
satisfactory to it (and required by applicable law) indicating that payments
hereunder are not subject to United States federal withholding tax, the
Borrower will withhold taxes as required by law from such payments at the
applicable statutory rate.
(c) Notwithstanding the other provisions of this Section
7.8, the Liquidity Provider may assign and pledge all or any portion of the
Advances owing to it to any Federal Reserve Bank or the United States
Treasury as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank, provided that any payment in respect of such
assigned Advances made by the Borrower to the Liquidity Provider in
accordance with the terms of this Agreement shall satisfy the Borrower s
obligations hereunder in respect of such assigned Advance to the extent of
such payment. No such assignment shall release the Liquidity Provider from
its obligations hereunder.
Section 7.9 Severability. Any provision of this Agreement
which is prohibited, unenforceable or not authorized in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition, unenforceability or non-authorization without invalidating the
remaining provisions hereof or affecting the validity, enforceability or
legality of such provision in any other jurisdiction.
Section 7.10 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
Section 7.11 Submission to Jurisdiction; Waiver of Jury
Trial; Waiver of Immunity. (a) Each of the parties hereto hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement or any other
Operative Agreement, or for recognition and enforcement of any
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judgment in respect hereof or thereof, to the nonexclusive general
jurisdiction of the courts of the State of New York, the courts of
the United States of America for the Southern District of New York,
and the appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form and mail), postage
prepaid, to each party hereto at its address set forth in Section
7.2 hereof, or at such other address of which the Liquidity Provider
shall have been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY
AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN
THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP
THAT IS BEING ESTABLISHED, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS. THE BORROWER AND THE LIQUIDITY PROVIDER EACH WARRANT AND REPRESENT
THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT IT
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH SUCH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, AND CANNOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
Section 7.12 Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 7.13 Entirety. This Agreement, the Intercreditor
Agreement and the other Operative Agreements to which the Liquidity Provider
is a party constitute the entire agreement of the parties hereto with respect
to the subject matter hereof and supersedes all prior understandings and
agreements of such parties.
-29-
Section 7.14 Headings. Section headings in this Agreement
are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
Section 7.15 LIQUIDITY PROVIDER'S OBLIGATION TO MAKE
ADVANCES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS
OF THE LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER S
RIGHTS TO DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES
HEREUNDER, SHALL BE UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR
PERFORMED, IN EACH CASE STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT.
Section 7.16 Head Office Obligation. Credit Suisse First
Boston hereby agrees that the obligations of the Liquidity Provider hereunder
are also the obligations of Credit Suisse First Boston's Head Office in
Zurich, Switzerland. Accordingly, any beneficiary of this Agreement will be
able to proceed directly against Credit Suisse First Boston's Head Office in
Zurich, Switzerland, if Credit Suisse First Boston's New York branch defaults
in its obligation to such beneficiary under this Agreement.
-30-
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first set forth above.
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity
but solely as Subordination
Agent, as Borrower
By: _______________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH, as Liquidity Provider
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
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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 Credit Suisse
First Boston, New York branch (the "Liquidity Provider"), with reference to
the Revolving Credit Agreement (2000-1G) dated as of June 28, 2000, between
the Borrower and the Liquidity Provider (the "Liquidity Agreement"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of an Interest Advance by the Liquidity Provider to be
used, subject to clause (3)(v) below, for the payment of the interest
on the Class G Certificates which was payable on ____________, ____
(the "Distribution Date") in accordance with the terms and provisions
of the Class G Trust Agreement and the Class G Certificates, which
Advance is requested to be made on ____________, ____.
(3) The amount of the Interest Advance requested hereby
(i) is $_______________.__, to be applied in respect of the payment
of the interest which was due and payable on the Class G Certificates
on the Distribution Date, (ii) does not include any amount with
respect to the payment of principal of, or premium on, the Class G
Certificates or the Class C Certificates, or interest on the Class C
Certificates, (iii) was computed in accordance with the provisions of
the Certificates, the Class G Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule
I), (iv) does not exceed the Maximum Available Commitment on the date
hereof, (v) does not include any amount of interest which was due and
payable on the Class G Certificates on such Distribution Date but
which remains unpaid due to the failure of the Depositary to pay any
amount of accrued interest on the Deposits on such Distribution Date
and (vi) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will apply the same in
accordance with the terms of Section 3.6(b) of the Intercreditor
Agreement, (b) no portion of such amount shall be applied by the
Borrower for any other purpose and (c) no portion of such amount
-1-
until so applied shall be commingled with other funds held by the
Borrower.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, the making of the Interest Advance as requested by this
Notice of Borrowing shall automatically reduce, subject to reinstatement in
accordance with the terms of the Liquidity Agreement, the Maximum Available
Commitment by an amount equal to the amount of the Interest Advance requested
to be made hereby as set forth in clause (i) of paragraph (3) of this Notice
of Borrowing and such reduction shall automatically result in corresponding
reductions in the amounts available to be borrowed pursuant to a subsequent
Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST
COMPANY,
not in its individual
capacity but solely as
Subordination Agent, as
Borrower
By: _______________________________
Name:
Title:
-2-
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest Advance Notice of
Borrowing]
-3-
Annex II to
Revolving Credit Agreement
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned subordination agent (the "Borrower"), hereby certifies to Credit
Suisse First Boston, New York branch (the "Liquidity Provider"), with
reference to the Revolving Credit Agreement (2000-1G) dated as of June 28,
2000, between the Borrower and the Liquidity Provider (the "Liquidity
Agreement"; the terms defined therein and not otherwise defined herein being
used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Non-Extension Advance by the Liquidity Provider
to be used for the funding of the Class G Cash Collateral Account in
accordance with Section 3.6(d) of the Intercreditor Agreement, which
Advance is requested to be made on __________, ____.
(3) The amount of the Non-Extension Advance requested
hereby (i) is $_______________.__, which equals the Maximum Available
Commitment on the date hereof and is to be applied in respect of the
funding of the Class G Cash Collateral Account in accordance with
Section 3.6(d) of the Intercreditor Agreement, (ii) does not include
any amount with respect to the payment of the principal of, or
premium on, the Class G Certificates, or principal of, or interest or
premium on, the Class C 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 Class G Cash Collateral Account and apply the same in accordance
with the terms of Section 3.6(d) of the Intercreditor Agreement,
(b) no portion of such amount shall be applied by the Borrower for
any other purpose and (c) no portion of such amount until so applied
shall be commingled with other funds held by the Borrower.
-1-
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Non-Extension Advance as requested
by this Notice of Borrowing shall automatically and irrevocably terminate the
obligation of the Liquidity Provider to make further Advances under the
Liquidity Agreement; and (B) following the making by the Liquidity Provider of
the Non-Extension Advance requested by this Notice of Borrowing, the Borrower
shall not be entitled to request any further Advances under the Liquidity
Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By: ________________________________
Name:
Title:
-2-
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Non-Extension Advance Notice
of Borrowing]
-3-
Annex III to
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned subordination agent (the "Borrower"), hereby certifies to Credit
Suisse First Boston, New York branch (the "Liquidity Provider"), with
reference to the Revolving Credit Agreement (2000-1G) dated as of June 28,
2000, between the Borrower and the Liquidity Provider (the "Liquidity
Agreement"; the terms defined therein and not otherwise defined herein being
used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Downgrade Advance by the Liquidity Provider to
be used for the funding of the Class G Cash Collateral Account in
accordance with Section 3.6(c) of the Intercreditor Agreement by
reason of the downgrading of the short-term unsecured debt rating of
the Liquidity Provider issued by either Rating Agency below the
Threshold Rating, which Advance is requested to be made on
__________, ____.
(3) The amount of the Downgrade Advance requested hereby
(i) is $_______________.__, which equals the Maximum Available
Commitment on the date hereof and is to be applied in respect of the
funding of the Class G Cash Collateral Account in accordance with
Section 3.6(c) of the Intercreditor Agreement, (ii) does not include
any amount with respect to the payment of the principal of, or
premium on, the Class G Certificates, or principal of, or interest or
premium on, the Class C 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 Class G Cash Collateral Account and apply the same in accordance
with the terms of Section 3.6(c) of the Intercreditor Agreement, (b)
no portion of such amount shall be applied by the Borrower for any
other purpose and (c) no portion of such amount until so applied
shall be commingled with other funds held by the Borrower.
-1-
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Downgrade Advance as requested by
this Notice of Borrowing shall automatically and irrevocably terminate the
obligation of the Liquidity Provider to make further Advances under the
Liquidity Agreement; and (B) following the making by the Liquidity Provider
of the Downgrade Advance requested by this Notice of Borrowing, the Borrower
shall not be entitled to request any further Advances under the Liquidity
Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST
COMPANY,
not in its individual
capacity but solely as
Subordination Agent, as
Borrower
By: _________________________
Name:
Title:
-2-
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Downgrade Advance Notice of
Borrowing]
-3-
Annex IV to
Revolving Credit Agreement
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned borrower (the "Borrower"), hereby certifies to Credit Suisse
First Boston, New York branch (the "Liquidity Provider"), with reference to
the Revolving Credit Agreement (2000-1G) dated as of June 28, 2000, between
the Borrower and the Liquidity Provider (the "Liquidity Agreement"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Final Advance by the Liquidity Provider to be
used for the funding of the Class G Cash Collateral Account in
accordance with Section 3.6(i) of the Intercreditor Agreement by
reason of the receipt by the Borrower of a Termination Notice from
the Liquidity Provider with respect to the Liquidity Agreement, which
Advance is requested to be made on ____________, ____.
(3) The amount of the Final Advance requested hereby (i)
is $_________________.__, which equals the Maximum Available
Commitment on the date hereof and is to be applied in respect of the
funding of the Class G Cash Collateral Account in accordance with
Section 3.6(i) of the Intercreditor Agreement, (ii) does not include
any amount with respect to the payment of principal of, or premium
on, the Class G Certificates, or principal of, or interest or premium
on, the Class C 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 Class G Cash Collateral Account and apply the same in accordance
with the terms of Section 3.6(i) of the Intercreditor Agreement, (b)
no portion of such amount shall be applied by the Borrower for any
other purpose and (c) no portion of such amount until so applied
shall be commingled with other funds held by the Borrower.
-1-
(5) The Borrower hereby requests that the Advance
requested hereby be a Base Rate Advance [and that such Base Rate
Advance be converted into a LIBOR Advance on the third Business Day
following your receipt of this notice].
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Final Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the
obligation of the Liquidity Provider to make further Advances under the
Liquidity Agreement; and (B) following the making by the Liquidity Provider
of the Final Advance requested by this Notice of Borrowing, the Borrower
shall not be entitled to request any further Advances under the Liquidity
Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity
but solely as Subordination
Agent, as Borrower
By: _________________________________
Name:
Title:
_______________
[FN]
1 Bracketed language may be included at Borrower's option
-2-
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Final Advance Notice of
Borrowing]
-3-
Annex V to
Revolving Credit Agreement
NOTICE OF TERMINATION
[Date]
State Street Bank and Trust Company,
as Subordination Agent, as Xxxxxxxx
Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Corporate Trust Administration
Revolving Credit Agreement (2000-1G) dated as of June 28, 2000,
between State Street Bank and Trust Company, as Subordination Agent,
as Borrower, and Credit Suisse First Boston, New York branch (the
"Liquidity Agreement")
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.1 of the
Liquidity Agreement, by reason of the occurrence of a Liquidity Event of
Default and the existence of a Performing Note Deficiency (each as defined
therein), we are giving this notice to you in order to cause (i) our
obligations to make Advances (as defined therein) under such Liquidity
Agreement to terminate on the fifth Business Day after the date on which you
receive this notice and (ii) you to request a Final Advance under the
Liquidity Agreement pursuant to Section 3.6(i) of the Intercreditor Agreement
(as defined in the Liquidity Agreement) as a consequence of your receipt of
this notice.
-1-
THIS NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR
UNDER THE LIQUIDITY AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE
LIQUIDITY AGREEMENT WILL TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE
ON WHICH YOU RECEIVE THIS NOTICE.
Very truly yours,
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH, as Liquidity
Provider
By: _________________________
Name:
Title:
cc: State Street Bank and Trust Company of
Connecticut, National Association,
as Class G Trustee
-2-
Annex VI to
Revolving Credit Agreement
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement (2000-1G) dated as of June 28, 2000,
between State Street Bank and Trust Company, as Subordination Agent,
as Borrower, and Credit Suisse First Boston, New York branch (the
"Liquidity Agreement")
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby
irrevocably transfers to:
______________________________
[Name of Transferee]
______________________________
[Address of Transferee]
all rights and obligations of the undersigned as Borrower under the Liquidity
Agreement referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the
first paragraph of the Liquidity Agreement, pursuant to the terms of Section
8.1 of the Intercreditor Agreement.
By this transfer, all rights of the undersigned as Borrower
under the Liquidity Agreement are transferred to the transferee and the
transferee shall hereafter have the sole rights and obligations as Borrower
thereunder. The undersigned shall pay any costs and expenses of such
transfer, including, but not limited to, transfer taxes or governmental
charges.
-1-
We ask that this transfer be effective as of
_______________, ____.
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity
but solely as Subordination
Agent, as Borrower
By: _________________________________
Name:
Title:
-2-
