EX-4(C)(2)
EXHIBIT 4(C)(2)
CONFORMED COPY
_________________________________________________________________________
REVOLVING CREDIT AGREEMENT
(2000-1C)
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 2000-1C
9.179% Northwest Airlines Pass Through Certificates,
Series 2000-1C
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms . . . . . . . . . . . 1
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01 The Advances . . . . . . . . . . . . . . . . 11
Section 2.02 Making the Advances . . . . . . . . . . . . 11
Section 2.03 Fees . . . . . . . . . . . . . . . . . . . . 11
Section 2.04 Reduction or Termination of the Maximum
Commitment . . . . . . . . . . . . . . . . 11
Section 2.05 Repayments of Interest Advances or the
Final Advance . . . . . . . . . . . . . . . 11
Section 2.06 Repayments of Provider Advances . . . . . . 11
Section 2.07 Payments to the Liquidity Provider Under
the Intercreditor Agreement . . . . . . . . 12
Section 2.08 Book Entries . . . . . . . . . . . . . . . . 12
Section 2.09 Payments from Available Funds Only . . . . . 12
Section 2.10 Extension of the Expiry Date;
Non-Extension Advance . . . . . . . . . . . 13
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01 Increased Costs . . . . . . . . . . . . . . 13
Section 3.02 Capital Adequacy . . . . . . . . . . . . . . 14
Section 3.03 Payments Free of Deductions . . . . . . . . 15
Section 3.04 Payments . . . . . . . . . . . . . . . . . . 16
Section 3.05 Computations . . . . . . . . . . . . . . . . 16
Section 3.06 Payment on Non-Business Days . . . . . . . . 16
Section 3.07 Interest . . . . . . . . . . . . . . . . . . 16
Section 3.08 Replacement of Borrower . . . . . . . . . . 18
Section 3.09 Funding Loss Indemnification . . . . . . . . 18
Section 3.10 Illegality . . . . . . . . . . . . . . . . . 18
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to Effectiveness of
Section 2.01 . . . . . . . . . . . . . . . 18
Section 4.02 Conditions Precedent to Borrowing . . . . . 20
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ARTICLE V
COVENANTS
Section 5.01 Affirmative Covenants of the Borrower . . . 21
Section 5.02 Negative Covenants of the Borrower . . . . . 21
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01 Liquidity Events of Default . . . . . . . . 21
ARTICLE VII
MISCELLANEOUS
Section 7.01 Amendments, Etc. . . . . . . . . . . . . . . 22
Section 7.02 Notices, Etc. . . . . . . . . . . . . . . . 22
Section 7.03 No Waiver; Remedies . . . . . . . . . . . . 22
Section 7.04 Further Assurances . . . . . . . . . . . . . 23
Section 7.05 Indemnification; Survival of Certain
Provisions . . . . . . . . . . . . . . . . 23
Section 7.06 Liability of the Liquidity Provider . . . . 23
Section 7.07 Costs, Expenses and Taxes . . . . . . . . . 24
Section 7.08 Binding Effect; Participations . . . . . . . 24
Section 7.09 Severability . . . . . . . . . . . . . . . . 26
Section 7.10 GOVERNING LAW . . . . . . . . . . . . . . . 26
Section 7.11 Submission to Jurisdiction; Waiver of
Jury Trial; Waiver of Immunity . . . . . . 26
Section 7.12 Execution in Counterparts . . . . . . . . . 27
Section 7.13 Entirety . . . . . . . . . . . . . . . . . . 27
Section 7.14 Headings . . . . . . . . . . . . . . . . . . 27
Section 7.15 LIQUIDITY PROVIDER'S OBLIGATION TO MAKE
ADVANCES . . . . . . . . . . . . . . . . . 27
Section 7.16 Head Office Obligation . . . . . . . . . . . 27
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 C Trust Agreement (such
term and all other capitalized terms used in these recitals having the
meanings set forth or referred to in Section 1.01), the Class C Trust is
issuing the Class C Certificates; and
WHEREAS, the Borrower, in order to support the timely
payment of a portion of the interest on the Class C Certificates in
accordance with their terms, has requested the Liquidity Provider to
enter into this Agreement, providing in part for the Borrower to request
in specified circumstances that Advances be made hereunder.
NOW, THEREFORE, in consideration of the premises, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms. (a) Definitions.
As used in this Agreement and unless otherwise expressly indicated, or
unless the context clearly requires otherwise, the following capitalized
terms shall have the following respective meanings for all purposes of
this Agreement:
"Advance" means an Interest Advance, a Final Advance, a
Provider Advance, an Applied Provider Advance or an Unpaid
Advance, as the case may be.
"Applicable Liquidity Rate" has the meaning assigned to
such term in Section 3.07(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%.
"Applied Downgrade Advance" has the meaning assigned to
such term in Section 2.06(a).
"Applied Non-Extension Advance" has the meaning assigned
to such term in Section 2.06(a).
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"Applied Provider Advance" has the meaning assigned to
such term in Section 2.06(a).
"Base Rate" means a fluctuating interest rate per annum
in effect from time to time, which rate per annum is at all
times equal to (a) the weighted average of the rates on
overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published
for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New
York, or if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for
such transactions received by the 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 C Certificate is
outstanding, the city and state in which the Class C Trustee,
the Borrower or any Loan Trustee maintains its Corporate Trust
Office or receives or disburses funds, and, if the applicable
Business Day relates to any Advance or other amount bearing
interest based on the LIBOR Rate, on which dealings are carried
on in the London interbank market.
"Consent Notice" has the meaning assigned to such term
in Section 2.10.
"Consent Period" has the meaning assigned to such term
in Section 2.10.
"Delivery Period" means the period from the date hereof
through 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 C Certificates, as the same may be amended, modified
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or supplemented from time to time in accordance with the terms
thereof.
"Depositary" has the meaning assigned to such term in
the Deposit Agreement.
"Deposits" has the meaning assigned to such terms in the
Deposit Agreement.
"Downgrade Advance" means an Advance made pursuant to
Section 2.02(c).
"Effective Date" has the meaning specified in Section
4.01. The delivery of the certificate of the Liquidity Provider
contemplated by Section 4.01(e) shall be conclusive evidence
that the Effective Date has occurred.
"Excluded Taxes" means (i) 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 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.
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"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 2.02(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 2.02(a).
"Interest Period" means, with respect to any LIBOR
Advance, each of the following periods:
(i) the period beginning on the third Business Day
following 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 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.
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"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.
"Maximum Available Commitment" shall mean, subject to
the proviso contained in the third sentence of Section 2.02(a),
at any time of determination, (a) the Maximum Commitment at such
time less (b) the aggregate amount of each Interest Advance
outstanding at such time; provided that following a Provider
Advance or a Final Advance, the Maximum Available Commitment
shall be zero.
"Maximum Commitment" means (i) in the case of any day
occurring before the first Regular Distribution Date, $5,430,509
and (ii) in the case of any day occurring on or after the first
Regular Distribution Date, the Required Amount on such day.
"Non-Excluded Tax" has the meaning specified in Section
3.03(a).
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"Non-Extension Advance" means an Advance made pursuant
to Section 2.02(b).
"Notice of Borrowing" has the meaning specified in
Section 2.02(e).
"Notice of Replacement Subordination Agent" has the
meaning specified in Section 3.08.
"Performing Note Deficiency" means any time that less
than 65% of the then aggregate outstanding principal amount of
all Equipment Notes are Performing Equipment Notes.
"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 2.06(b).
"Required Amount" means, for any day, the sum of the
aggregate amount of interest, calculated at the rate per annum
equal to the Stated Interest Rate for the Class C Certificates,
that would be payable on the Class C 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 the Class C Certificates on such day and
without regard to expected future payments of principal on the
Class C Certificates.
"Tax Letter" means the letter dated the date hereof
betweent he 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 C 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
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Day following the receipt by the Borrower of a Termination
Notice from the Liquidity Provider pursuant to Section 6.01
hereof; and (v) the date on which no Advance is or may
(including by reason of reinstatement as herein provided) become
available for a Borrowing hereunder.
"Termination Notice" means the Notice of Termination
substantially in the form of Annex V to this Agreement.
"Transferee" has the meaning assigned to such term in
Section 7.08(b).
"Unapplied Downgrade Advance" means any Downgrade
Advance other than an Applied Downgrade Advance.
"Unapplied Provider Advance" means any Provider Advance
other than an Applied Provider Advance.
"Unpaid Advance" has the meaning assigned to such term
in Section 2.05.
"Withdrawal Notice" has the meaning assigned to such
term in Section 2.10.
(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 C
Cash Collateral Account", "Class C Certificateholders", "Class C
Trust", "Class C Trust Agreement", "Class C Trustee", "Class G
Certificates", "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".
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ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01 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 2.04(b)) in an aggregate amount at any time outstanding not to
exceed the Maximum Commitment.
Section 2.02 Making the Advances. (a) Interest
Advances shall be made in one or more Borrowings by delivery to the
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 C Certificates at the
Stated Interest Rate therefor in accordance with Section 3.6(a) of the
Intercreditor Agreement. Each Interest Advance made hereunder shall
automatically reduce the Maximum Available Commitment and the amount
available to be borrowed hereunder by subsequent Advances by the amount
of such Interest Advance (subject to reinstatement as provided in the
next sentence). Upon repayment to the Liquidity Provider in full of the
amount of any Interest Advance made pursuant to this Section 2.02(a),
together with accrued interest thereon (as provided herein), the Maximum
Available Commitment shall be reinstated by the amount of such repaid
Interest Advance, but not to exceed the Maximum Commitment; provided,
however, that the Maximum Available Commitment shall not be so reinstated
at any time if (i) a Liquidity Event of Default shall have occurred and
be continuing and (ii) there is a Performing Note Deficiency.
(b) A Non-Extension Advance shall be made in a
single Borrowing if this Agreement is not extended in accordance with
Section 3.6(d) of the Intercreditor Agreement (unless a Replacement
Liquidity Facility to replace this Agreement shall have been delivered to
the Borrower as contemplated by said Section 3.6(d) within the time
period specified in such Section) by delivery to the Liquidity Provider
of a written and completed Notice of Borrowing in substantially the form
of Annex II attached hereto, signed by a Responsible Officer of the
Borrower, in an amount equal to the Maximum Available Commitment at such
time, and shall be used to fund the Class C Cash Collateral Account in
accordance with said Section 3.6(d) and Section 3.6(f) of the
Intercreditor Agreement.
(c) A Downgrade Advance shall be made in a single
Borrowing upon a downgrading of the Liquidity Provider s short-term
unsecured debt rating issued by either Rating Agency below the applicable
Threshold Rating (as provided for in Section 3.6(c) of the Intercreditor
Agreement) unless a Replacement Liquidity Facility 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
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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 C 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 6.01 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 C
Cash Collateral Account in accordance with Section 3.6(i) and Section
3.6(f) of the Intercreditor Agreement.
(e) Each Borrowing shall be made on notice in
writing (a "Notice of Borrowing") in substantially the form required by
Section 2.02(a), 2.02(b), 2.02(c) or 2.02(d), as the case may be, given
by the Borrower to the 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
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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 C Cash Collateral Account, the Liquidity Provider shall
have no interest in or rights to the Class C Cash Collateral Account,
such Advance or any other amounts from time to time on deposit in the
Class C Cash Collateral Account; provided 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, the correctness or sufficiency for any purpose of the
amount of the Advances so made and requested.
Section 2.03 Fees. The Borrower agrees to pay to the
Liquidity Provider the fees set forth in the Fee Letter.
Section 2.04 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 C 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 2.05 Repayments of Interest Advances or the
Final Advance. Subject to Sections 2.06, 2.07 and 2.09 hereof, the
Borrower hereby agrees, without notice of an Advance or demand for
repayment from the 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 2.05 or (ii) this Liquidity Facility shall
become a Downgraded Facility or Non-Extended Facility at any time when
unreimbursed Interest Advances have reduced the Maximum Available
Commitment to zero, then such Interest Advances shall cease to constitute
Unpaid Advances and shall be deemed to have been changed into an Applied
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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 2.06(b)). The Borrower and the Liquidity
Provider agree that the repayment in full of each Interest Advance and
Final Advance on the date such Advance is made is intended to be a
contemporaneous exchange for new value given to the Borrower by the
Liquidity Provider.
Section 2.06 Repayments of Provider Advances.
(a) Amounts advanced hereunder in respect of a Provider Advance shall be
deposited in the Class C Cash Collateral Account, invested and withdrawn
from the Class C Cash Collateral Account as set forth in Sections 3.6(c),
(d) and (f) of the Intercreditor Agreement. The Borrower agrees to pay
to the Liquidity Provider, on each Regular Distribution Date, commencing
on the first Regular Distribution Date after the making of a Provider
Advance, interest on the principal amount of any such Provider Advance as
provided in Section 3.07; provided, however, that amounts in respect of a
Provider Advance withdrawn from the Class C Cash Collateral Account for
the purpose of paying interest on the Class C Certificates in accordance
with Section 3.6(f) of the Intercreditor Agreement (the amount of any
such withdrawal being (y) in the case of a Downgrade Advance, an "Applied
Downgrade Advance" and (z) in the case of a Non-Extension Advance, an
"Applied Non-Extension Advance" and, together with an Applied Downgrade
Advance, an "Applied Provider Advance") shall thereafter (subject to
Section 2.06(b)) be treated as an Interest Advance under this Agreement
for purposes of determining the Applicable Liquidity Rate for interest
payable thereon; 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 C Cash
Collateral Account on account of a reduction in the Required Amount, the
Borrower shall repay to the Liquidity Provider a portion of the Provider
Advances in a principal amount equal to such reduction, plus interest on
the principal amount prepaid as provided in Section 3.07 hereof.
(b) At any time when an Applied Provider Advance
(or any portion thereof) is outstanding, upon the deposit in the Class C
Cash Collateral Account of any amount pursuant to clause "third" of
Section 2.4(b) of the Intercreditor Agreement, clause "third" of Section
3.2 of the 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
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Provider Advances shall be automatically increased by the amount of such
Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity
Facility in replacement of this Agreement in accordance with Section
3.6(e) of the Intercreditor Agreement, amounts remaining on deposit in
the Class C Cash Collateral Account after giving effect to any Applied
Provider Advance on the date of such replacement shall be reimbursed to
the Liquidity Provider, but only to the extent such amounts are necessary
to repay in full to the Liquidity Provider all amounts owing to it
hereunder.
Section 2.07 Payments to the Liquidity Provider Under
the Intercreditor Agreement. In order to provide for payment or
repayment to the Liquidity Provider of any amounts hereunder, the
Intercreditor Agreement provides that amounts available and referred to
in Articles II and III of the Intercreditor Agreement, to the extent
payable to the Liquidity Provider pursuant to the terms of the
Intercreditor Agreement (including, without limitation, Section 3.6(f) of
the Intercreditor Agreement), shall be paid to the Liquidity Provider in
accordance with the terms thereof. Amounts so paid to the Liquidity
Provider shall be applied by the Liquidity Provider to Liquidity
Obligations then due and payable in 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 2.08 Book Entries. The Liquidity Provider
shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower resulting from
Advances made from time to time and the amounts of principal and interest
payable hereunder and paid from time to time in respect thereof;
provided, however, that the failure by the Liquidity Provider to maintain
such account or accounts shall not affect the obligations of the Borrower
in respect of Advances.
Section 2.09 Payments from Available Funds Only. All
payments to be made by the Borrower under this Agreement shall be made
only from 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 C 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 C Certificates and (ii) the date that is
the day immediately preceding the 364th day occurring after the last day
of the Consent Period (as hereinafter defined). Whether or not the
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 2.02(b) hereof and Section 3.6(d) of the Intercreditor Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01 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) 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
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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 3.02 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
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.
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The Liquidity Provider agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Lending Office if making
such change would avoid the need for, or reduce the amount of, any amount
payable under this Section 3.02 that may thereafter accrue and would not,
in the reasonable judgment of the Liquidity Provider, be otherwise
materially disadvantageous to the Liquidity Provider.
Section 3.03 Payments Free of Deductions. (a) All
payments made by the Borrower under this Agreement shall be made free and
clear of, and without reduction for or on account of, any 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 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
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Borrower the original or a certified copy of (or other documentary
evidence of) the payment of the Taxes applicable to such payment.
Section 3.04 Payments. The Borrower shall make or
cause to be made each payment to the Liquidity Provider under this
Agreement so as to cause the same to be received by the Liquidity
Provider not later than 1:00 P.M. (New York City time) on the day when
due. The Borrower shall make all such payments in lawful money of the
United States of America, to the Liquidity Provider in immediately
available funds, by wire transfer to Credit Suisse First Boston, New York
branch, ABA #000000000, Account No. 000-0000-000, CSFB NY Loan Clearing,
Reference: Northwest Airlines Liquidity Facility 2000-1C.
Section 3.05 Computations. All computations of
interest based on the Base Rate shall be made on the basis of a year of
365 or 366 days, as the case may be, and all computations of interest
based on the LIBOR Rate shall be made on the basis of a year of 360 days,
in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest
is payable.
Section 3.06 Payment on Non-Business Days. Whenever
any payment to be made hereunder shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding
Business Day and no additional interest shall be due as a result (and if
so made, shall be deemed to have been made when due). If any payment in
respect of interest on an Advance is so deferred to the next succeeding
Business Day, such deferral shall not delay the commencement of the next
Interest Period for such Advance (if such Advance is a LIBOR Advance) or
reduce the number of days for which interest will be payable on such
Advance on the next interest payment date for such Advance.
Section 3.07 Interest. (a) Subject to Section 2.09,
the Borrower shall pay, or shall cause to be paid, without duplication,
interest on (i) the unpaid principal amount of each Advance from and
including the date of such Advance (or, in the case of an Applied
Provider Advance, from and including the date on which the amount thereof
was withdrawn from the Class C Cash Collateral Account to pay interest on
the Class C Certificates) to but excluding the date such principal amount
shall be paid in full (or, in the case of an Applied Provider Advance,
the date on which the Class C Cash Collateral Account is fully
replenished in respect of such Advance) and (ii) any other amount due
hereunder (whether fees, commissions, expenses or other amounts or, to
the extent permitted by law, installments of interest on Advances or any
such other amount) which is not paid when due (whether at stated
maturity, by acceleration or otherwise) from and including the due date
thereof to but excluding the date such amount is paid in full, in each
such case, at a fluctuating interest rate per annum for each day equal to
the Applicable Liquidity Rate (as defined below) for such Advance or such
other amount as in effect for such day, but in no event at a rate per
annum greater than the maximum rate permitted by applicable law;
provided, however, that, if at any time the otherwise applicable interest
rate as set forth in this Section 3.07 shall exceed the maximum rate
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permitted by applicable law, then any subsequent reduction in such
interest rate will not reduce the rate of interest payable pursuant to
this Section 3.07 below the maximum rate permitted by applicable law
until the total amount of interest accrued equals the amount of interest
that would have accrued if such otherwise applicable interest rate as set
forth in this Section 3.07 had at all times been in effect.
(b) Each Advance will be either a Base Rate Advance
or a LIBOR Advance as provided in this Section. Each such Advance will
be a Base Rate Advance for the period from the date of its borrowing to
(but excluding) the third Business Day following the 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 2.06, 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).
(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
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3.07 with respect to any Advance or other amount shall be referred to as
the "Applicable Liquidity Rate".
Section 3.08 Replacement of Borrower. From time to
time and subject to the successor Borrower s meeting the eligibility
requirements set forth in Section 6.9 of the Intercreditor Agreement
applicable to the Subordination Agent, upon the effective date and time
specified in a written and completed Notice of Replacement Subordination
Agent in substantially the form of Annex VI attached hereto (a "Notice of
Replacement Subordination Agent") delivered to the Liquidity Provider by
the then Borrower, the successor Borrower designated therein shall be
substituted for as the Borrower for all purposes hereunder.
Section 3.09 Funding Loss Indemnification. The
Borrower shall pay to the Liquidity Provider, upon the request of the
Liquidity Provider, such amount or amounts as shall be sufficient (in the
reasonable opinion of the Liquidity Provider) to compensate it for any
loss, cost, or expense incurred as a result of:
(1) Any repayment of a LIBOR Advance on a date
other than the last day of the Interest Period for such Advance;
or
(2) Any failure by the Borrower to borrow a LIBOR
Advance on the date for borrowing specified in the relevant
notice under Section 2.02.
Section 3.10 Illegality. Notwithstanding any other
provision in this Agreement, if any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by the
Liquidity Provider (or its Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central
bank or comparable agency shall make it unlawful or impossible for the
Liquidity Provider (or its Lending Office) to maintain or fund its LIBOR
Advances, then upon notice to the Borrower by the Liquidity Provider, the
outstanding principal amount of the LIBOR Advances shall be converted to
Base Rate Advances (a) immediately upon demand of the Liquidity Provider,
if such change or compliance with such request, in the judgment of the
Liquidity Provider, requires immediate repayment; or (b) at the
expiration of the last Interest Period to expire before the effective
date of any such change or request.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to Effectiveness of
Section 2.01. Section 2.01 of this Agreement shall become effective on
and as of the first date (the "Effective Date") on which the following
conditions precedent have been satisfied or waived:
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(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);
(iv) A copy of the Prospectus Supplement and
specimen copies of the Class C Certificates;
(v) An executed copy of each document,
instrument, certificate and opinion delivered on or
before the Closing Date pursuant to the Class C 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
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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 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 C 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 2.01 have
been satisfied or waived.
Section 4.02 Conditions Precedent to Borrowing. The
obligation of the Liquidity Provider to make an Advance on the occasion
of each Borrowing shall be subject to the conditions precedent that the
Effective Date shall have occurred and, prior to the date of such
Borrowing, the Borrower shall have delivered a Notice of Borrowing which
conforms to the terms and conditions of this Agreement and has been
completed as may be required by the relevant form of the Notice of
Borrowing for the type of Advances requested.
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ARTICLE V
COVENANTS
Section 5.01 Affirmative Covenants of the Borrower. So
long as any Advance shall remain unpaid or the Liquidity Provider shall
have any Maximum Commitment hereunder or the Borrower shall have any
obligation to pay any amount to the Liquidity Provider hereunder, the
Borrower 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.
(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 5.02 Negative Covenants of the Borrower. So
long as any Advance shall remain unpaid or the Liquidity Provider shall
have any Maximum Commitment hereunder or the Borrower shall have any
obligation to pay any amount to the Liquidity Provider hereunder, the
Borrower 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 6.01 Liquidity Events of Default. If (a) any
Liquidity Event of Default has occurred and is continuing and (b) there
is a Performing Note Deficiency, the Liquidity Provider may, in its
discretion, deliver to the Borrower a Termination Notice, the effect of
which shall be to cause (i) 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
2.02(d) hereof and Section 3.6(i) of the Intercreditor Agreement, (iii)
all other outstanding Advances to be automatically converted into Final
Advances for purposes of determining the Applicable Liquidity Rate for
interest payable thereon, and (iv) subject to Sections 2.07 and 2.09
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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.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Amendments, Etc. No amendment or waiver
of any provision of this Agreement, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Liquidity Provider, and, in the case of
an amendment or of a waiver by the Borrower, the Borrower, and then such
waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
Section 7.02 Notices, Etc. Except as otherwise
expressly provided herein, all notices and other communications provided
for hereunder shall be in writing (including telecopier and mailed or
delivered or sent by telecopier):
Borrower: STATE STREET BANK AND TRUST COMPANY
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
Janko 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 7.03 No Waiver; Remedies. No failure on the
part of the Liquidity Provider to exercise, and no delay in exercising,
any right under this Agreement shall operate as a waiver thereof; nor
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shall any single or partial exercise of any right under this Agreement
preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Section 7.04 Further Assurances. The Borrower agrees
to do such further acts and things and to execute and deliver to the
Liquidity Provider such additional assignments, agreements, powers and
instruments as the Liquidity Provider may reasonably require or deem
advisable to carry into effect the purposes of this Agreement and the
other Operative Agreements or to better assure and confirm unto the
Liquidity Provider its rights, powers and remedies hereunder and under
the other Operative Agreements.
Section 7.05 Indemnification; Survival of Certain
Provisions. The Liquidity Provider shall be indemnified hereunder to the
extent and in the manner described in Section 7(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
3.01, 3.02 or 7.07 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 3.01, 3.02, 3.03, 3.09, 7.05 and 7.07
hereof, shall survive the termination of this Agreement.
Section 7.06 Liability of the 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 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
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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 7.07 Costs, Expenses and Taxes. The Borrower
agrees to pay, or cause to be paid (A) on the Effective Date and on such
later date or dates on which the Liquidity Provider shall make demand,
all reasonable out-of-pocket costs and expenses (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 C Cash Collateral
Account. In addition, the Borrower shall pay any and all recording,
stamp and other similar taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing and recording
of this Agreement, any other Operative Agreement and such other
documents, and agrees to save the Liquidity Provider harmless from and
against any and all liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes or fees.
Section 7.08 Binding Effect; Participations. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrower
and the Liquidity Provider and their respective successors and assigns,
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except that neither the Liquidity Provider (except as otherwise provided
in this Section 7.08) nor (except as contemplated by Section 3.08) the
Borrower shall have the right to assign its rights or obligations
hereunder or any interest herein without the prior written consent of the
other party, subject to the requirements of Section 7.08(b). The
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 7.08(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 3.03(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 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
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complete exemption from United States federal withholding tax on payments
under this Agreement. Unless the Borrower has received forms or other
documents reasonably satisfactory to it (and required by applicable law)
indicating that payments hereunder are not subject to United States
federal withholding tax, the Borrower will withhold taxes as required by
law from such payments at the applicable statutory rate.
(c) Notwithstanding the other provisions of this
Section 7.08, the 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 7.09 Severability. Any provision of this
Agreement which is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition, unenforceability or non-authorization without
invalidating the remaining provisions hereof or affecting the validity,
enforceability or legality of such provision in any other jurisdiction.
Section 7.10 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
Section 7.11 Submission to Jurisdiction; Waiver of Jury
Trial; Waiver of Immunity. (a) Each of the parties hereto hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any
legal action or proceeding relating to this Agreement or any
other Operative Agreement, or for recognition and enforcement of
any judgment in respect hereof or thereof, to the nonexclusive
general jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District
of New York, and the appellate courts from any thereof;
(ii) consents that any such action or proceeding may
be brought in such courts, and waives any objection that it may
now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or 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
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address set forth in Section 7.02 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.
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
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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.
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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 (2000-1C) 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 C Certificates which was
payable on ____________, ____ (the "Distribution Date") in
accordance with the terms and provisions of the Class C Trust
Agreement and the Class C Certificates, which Advance is
requested to be made on ____________, ____.
(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 C Certificates on the Distribution Date, (ii) does not
include any amount with respect to the payment of principal of,
or premium on, the Class C 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 C Trust Agreement and the Intercreditor Agreement (a
copy of which computation is attached hereto as Schedule I),
(iv) does not exceed the Maximum Available Commitment on the
date hereof, (v) does not include any amount of interest which
was due and payable on the Class C Certificates on such
Distribution Date but which remains unpaid due to the failure of
the Depositary to pay any amount of accrued interest on the
Deposits on such Distribution Date and (vi) has not been and is
not the subject of a prior or contemporaneous Notice of
Borrowing.
(4) Upon receipt by or on behalf of the Borrower of
the amount requested hereby, (a) the Borrower 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 until so applied shall be commingled with other
funds held by the Borrower.
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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 (2000-1C) 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 C
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 C Cash Collateral
Account in accordance with Section 3.6(d) of the Intercreditor
Agreement, (ii) does not include any amount with respect to the
payment of the principal of, or premium on, the Class C
Certificates, or principal of, or interest or premium on, the
Class C Certificates, (iii) was computed in accordance with the
provisions of the Class C Certificates, the Class C Trust
Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), and (iv) has not
been and is not the subject of a prior or contemporaneous Notice
of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of
the amount requested hereby, (a) the Borrower will deposit such
amount in the Class C Cash Collateral Account and apply the same
in accordance with the terms of Section 3.6(d) of the
Intercreditor Agreement, (b) no portion of such amount shall be
applied by the Borrower for any other purpose and (c) no portion
of such amount until so applied shall be commingled with other
funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Non-Extension Advance
as requested by this Notice of Borrowing shall automatically and
irrevocably terminate the obligation of the Liquidity Provider
to make further Advances under the Liquidity Agreement; and
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(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 (2000-1C) 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 C
Cash Collateral Account in accordance with Section 3.6(c) of the
Intercreditor Agreement by reason of the downgrading of the
short-term unsecured debt rating of the Liquidity Provider
issued by either Rating Agency below the Threshold Rating, which
Advance is requested to be made on __________, ____.
(3) The amount of the Downgrade Advance requested
hereby (i) is $_______________.__, which equals the Maximum
Available Commitment on the date hereof and is to be applied in
respect of the funding of the Class C Cash Collateral Account in
accordance with Section 3.6(c) of the Intercreditor Agreement,
(ii) does not include any amount with respect to the payment of
the principal of, or premium on, the Class C Certificates, or
principal of, or interest or premium on, the Class C
Certificates, (iii) was computed in accordance with the
provisions of the Class C Certificates, the Class C Trust
Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), and (iv) has not
been and is not the subject of a prior or contemporaneous Notice
of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of
the amount requested hereby, (a) the Borrower will deposit such
amount in the Class C Cash Collateral Account and apply the same
in accordance with the terms of Section 3.6(c) of the
Intercreditor Agreement, (b) no portion of such amount shall be
applied by the Borrower for any other purpose and (c) no portion
of such amount until so applied shall be commingled with other
funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Downgrade Advance as requested
by this Notice of Borrowing shall automatically and irrevocably terminate
the obligation of the Liquidity Provider to make further Advances under
-1-
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 (2000-1C) 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 C Cash
Collateral Account in accordance with Section 3.6(i) of the
Intercreditor Agreement by reason of the receipt by the Borrower
of a Termination Notice from the Liquidity Provider with respect
to the Liquidity Agreement, which Advance is requested to be
made on ____________, ____.
(3) The amount of the Final Advance requested
hereby (i) is $_________________.__, which equals the Maximum
Available Commitment on the date hereof and is to be applied in
respect of the funding of the Class C Cash Collateral Account in
accordance with Section 3.6(i) of the Intercreditor Agreement,
(ii) does not include any amount with respect to the payment of
principal of, or premium on, the Class C Certificates, or
principal of, or interest or premium on, the Class C
Certificates, (iii) was computed in accordance with the
provisions of the Class C Certificates, the Class C Trust
Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), and (iv) has not
been and is not the subject of a prior or contemporaneous Notice
of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of
the amount requested hereby, (a) the Borrower will deposit such
amount in the Class C Cash Collateral Account and apply the same
in accordance with the terms of Section 3.6(i) of the
Intercreditor Agreement, (b) no portion of such amount shall be
applied by the Borrower for any other purpose and (c) no portion
of such amount until so applied shall be commingled with other
funds held by the Borrower.
(5) The Borrower hereby requests that the Advance
requested hereby be a Base Rate Advance [and that such Base Rate
Advance be converted into a LIBOR Advance on the third Business
Day following your receipt of this notice].
___________
Bracketed language may be included at Borrower's option.
-1-
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Final Advance as requested by
this Notice of Borrowing shall automatically and irrevocably terminate
the obligation of the 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:
-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 (2000-1C) 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 6.01 of
the Liquidity Agreement, by reason of the occurrence of a Liquidity Event
of Default and the existence of a Performing Note Deficiency (each as
defined therein), we are giving this notice to you in order to cause (i)
our obligations to make Advances (as defined therein) under such
Liquidity Agreement to terminate on the fifth Business Day after the date
on which you receive this notice and (ii) you to request a Final Advance
under the Liquidity Agreement pursuant to Section 3.6(i) of the
Intercreditor Agreement (as defined in the Liquidity Agreement) as a
consequence of your receipt of this notice.
-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 C Trustee
-2-
Annex VI to
Revolving Credit Agreement
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement (2000-1C) 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-
