Exhibit 4.3
EXECUTION COPY
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REVOLVING CREDIT AGREEMENT
(Class G-1)
dated as of November 14, 2006
between
WILMINGTON TRUST COMPANY,
as Subordination Agent,
as agent and trustee for the
JetBlue Airways (Spare Parts) G-1 Pass Through Trust,
as Borrower
and
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as Primary Liquidity Provider
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JetBlue Airways (Spare Parts) G-1 Pass Through Trust
Pass Through Certificates
Revolving Credit Agreement
TABLE OF CONTENTS
Page
----
Article I
DEFINITIONS....................................................
1
Section 1.01
Certain Defined Terms..................................
1
Article II AMOUNT AND TERMS OF THE
COMMITMENT............................
6
Section 2.01
The Advances...........................................
6
Section 2.02
Making the Advances....................................
6
Section 2.03
Fees...................................................
8
Section 2.04
Reductions or Termination of the Maximum Commitment....
8
Section 2.05
Repayments of Interest Advances or the Final Advance...
9
Section 2.06
Repayments of Downgrade Advances.......................
9
Section 2.07
Payments to the Primary Liquidity Provider Under the
Intercreditor Agreement................................
10
Section 2.08
Book Entries...........................................
10
Section 2.09
Payments from Available Funds Only.....................
11
Article III OBLIGATIONS OF THE
BORROWER..................................
11
Section 3.01
Increased Costs........................................
11
Section 3.02
Capital Adequacy.......................................
12
Section 3.03
United States Withholding Taxes........................
13
Section 3.04
Payments...............................................
14
Section 3.05
Computations...........................................
14
Section 3.06
Payment on Non-Business Days...........................
14
Section 3.07
Interest...............................................
14
Section 3.08
Replacement of Borrower................................
16
Section 3.09
Funding Loss Indemnification...........................
16
Section 3.10
Illegality.............................................
16
Section 3.11
Mitigation.............................................
16
Article IV CONDITIONS
PRECEDENT..........................................
17
Section 4.01
Conditions Precedent to Effectiveness of
Section 2.01...........................................
17
Section 4.02
Conditions Precedent to Borrowing......................
19
Article V
COVENANTS......................................................
19
Section 5.01
Affirmative Covenants of the Borrower..................
19
Section 5.02
Negative Covenants of the Borrower.....................
20
Article VI LIQUIDITY EVENTS OF DEFAULT;
Liquidity provider reimbursement
date....................................
20
Section 6.01
Liquidity Events of Default............................
20
Section 6.04
.......................................................
20
Section 6.02
Liquidity Provider Reimbursement Date..................
20
Article VII
MISCELLANEOUS................................................
20
Section 7.01
Amendments, Etc........................................
20
Revolving Credit Agreement
i
Section 7.02
Notices, Etc...........................................
21
Section 7.03
No Waiver; Remedies....................................
21
Section 7.04
Further Assurances.....................................
22
Section 7.05
Indemnification; Survival of Certain Provisions........
22
Section 7.06
Liability of the Primary Liquidity Provider............
22
Section 7.07
Costs, Expenses and Documentary Taxes..................
23
Section 7.08
Binding Effect; Participations.........................
23
Section 7.09
Severability...........................................
25
Section 7.10
GOVERNING LAW..........................................
25
Section 7.11
Submission to Jurisdiction; Waiver of Jury Trial.......
25
Section 7.12
Execution in Counterparts. This........................
26
Section 7.13
Entirety...............................................
26
Section 7.14
Headings...............................................
26
Section 7.15
PRIMARY LIQUIDITY PROVIDER'S OBLIGATION TO
MAKE ADVANCES..........................................
26
ANNEX I
Interest Advance Notice of Borrowing
ANNEX II
Reserved
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
Revolving Credit Agreement
ii
REVOLVING CREDIT AGREEMENT (Class G-1)
This REVOLVING CREDIT AGREEMENT (Class G-1), dated as of November
14,
2006, is made by and between WILMINGTON TRUST COMPANY, a Delaware
banking
corporation, not in its individual capacity but solely as
Subordination Agent
under the Intercreditor Agreement (each as defined below), as agent
and trustee
for the Trust (as defined below) (the "Borrower"), and LANDESBANK
HESSEN-THURINGEN GIROZENTRALE, a public-law banking institution
organized under
the laws of Germany (the "Primary Liquidity Provider").
WITNESSETH:
The parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms. (a) Capitalized terms used
herein
without definitions shall have the respective meanings specified in
the
Intercreditor Agreement for all purposes of this Agreement.
(b) As used in this Agreement and unless 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:
"Additional Costs" has the meaning assigned to such term in Section
3.01.
"Advance" means an Interest Advance, a Final Advance, a Downgrade
Advance or an Applied Downgrade Advance, as the case may be.
"Agreement" means this Revolving Credit Agreement (Class G-1),
dated
as of November 14, 2006, between the Borrower and the Primary
Liquidity
Provider, as the same may be amended, supplemented or otherwise
modified from
time to time in accordance with its terms.
"Applicable Liquidity Rate" has the meaning assigned to such term
in
Section 3.07(g).
"Applicable Margin" means (i) with respect to any Unpaid Advance or
Applied Downgrade Advance, 1.75% per annum and (ii) with respect to
any
Unapplied Downgrade Advance, the rate or margin per annum, as
applicable,
specified in the Fee Letter applicable to this Agreement.
"Applied Downgrade Advance" has the meaning assigned to such term
in
Section 2.06(a).
Revolving Credit Agreement
"Base Rate" means a fluctuating interest rate per annum in effect
from
time to time, which rate per annum shall at all times be equal to
(a) the
weighted average of the rates on overnight Federal funds
transactions with
members of the Federal Reserve System arranged by Federal funds
brokers, as
published for such day (or, if such day is not a Business Day, for
the next
preceding Business Day) by the Federal Reserve Bank of New York, or
if such rate
is not so published for any day that is a Business Day, the average
of the
quotations for such day for such transactions received by the
Primary Liquidity
Provider from three Federal funds brokers of recognized standing
selected by it,
plus (b) one-quarter of one percent (1/4 of 1%).
"Base Rate Advance" means an Advance that bears interest at a rate
based upon the Base Rate.
"Borrower" has the meaning assigned to such term in the recital of
parties to this Agreement.
"Borrowing" means the making of Advances requested by delivery of a
Notice of Borrowing.
"Class G-1 Trust Agreement" means the JetBlue Airways (Spare Parts)
Class G-1 Pass Through Trust Agreement, of even date herewith,
between JetBlue
Airways Corporation and Wilmington Trust Company, not in its
individual capacity
but solely as Pass Through Trustee, in respect of the Class G-1
Certificates.
"Consent Period" has the meaning assigned to such term in Section
2.10.
"Downgrade Advance" means an Advance made pursuant to Section
2.02(c).
"Downgrade Event" means a downgrading of the Primary Liquidity
Provider's short-term unsecured debt rating or short-term issuer
credit rating,
as the case may be, issued by either Rating Agency below the
applicable
Threshold Rating.
"Effective Date" has the meaning assigned to such term in Section
4.01. The delivery of the certificate of the Primary 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, based on or measured
by
the income of, or franchise Taxes imposed on, the Primary Liquidity
Provider or
its Lending Office by the jurisdiction where such Primary Liquidity
Provider's
principal office or such Lending Office is located or any other
taxing
jurisdiction in which such Tax is imposed as a result of the
Primary Liquidity
Provider being, or having been, organized in, or conducting, or
having
conducted, any activities unrelated to the transactions
contemplated by the
Operative Agreements in, such jurisdiction 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 or increased 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 Primary Liquidity Provider
Revolving Credit Agreement
2
(including a transferee of an Advance), after the date on which
such successor
Primary Liquidity Provider obtains its interest, (ii) any
withholding Taxes
imposed by the United States which are imposed or increased as a
result of the
Primary Liquidity Provider failing to deliver to the Borrower any
certificate or
document (which certificate or document, in the good faith judgment
of the
Primary Liquidity Provider, the Primary Liquidity Provider 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, and (iv) withholding Taxes imposed by the United
States on
payments to a recipient in any other jurisdiction to which the
Lending Office of
the Primary Liquidity Provider is moved if, under the laws in
effect at the time
of such move, such laws would require greater withholding of Taxes
on payments
to such Primary Liquidity Provider acting from an office in such
jurisdiction
than would be required on payments to such Primary Liquidity
Provider acting
from an office in the jurisdiction from which such Lending Office
was moved.
"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) directly related to this
Agreement or the
other Operative Agreements, provided that "Expenses" shall not
include any Taxes
(of any kind or description) or any general, overhead or analogous
costs,
expenses or disbursements (howsoever allocated).
"Expiry Date" means January 17, 2016.
"Final Advance" means an Advance made pursuant to Section 2.02(d).
"GAAP" means generally accepted accounting principles as set forth
in
the statements of financial accounting standards issued by the
Financial
Accounting Standards Board of the American Institute of Certified
Public
Accountants, as such principles may at any time or from time to
time be varied
by any applicable financial accounting rules or regulations issued
by the
Securities and Exchange Commission and, with respect to any person,
shall mean
such principles applied on a basis consistent with prior periods
except as may
be disclosed in such person's financial statements.
"Indemnified Tax" has the meaning assigned to such term in Section
3.03(a).
"Intercreditor Agreement" means the Intercreditor Agreement dated
as
of November 14, 2006 among the Trustee, the Liquidity Provider, the
Policy
Provider, Wilmington Trust Company, as Subordination Agent and as
trustee
thereunder, and the Additional Liquidity Provider(s) and Additional
Policy
Provider(s) (if any executing joinder agreements with respect
thereto) as
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
either
Revolving Credit Agreement
3
(A) the Primary Liquidity Provider's receipt of the Notice of
Borrowing for such
LIBOR Advance or (B) the withdrawal of funds from the Primary Cash
Collateral
Account for the purpose of paying interest on the Class G-1
Certificates as
contemplated by Section 2.06(a) hereof and, in either case, ending
on the next
Regular Distribution Date; and
(ii) each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the next
Regular
Distribution Date;
provided, however, that if (x) the Final Advance shall have been
made, 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 Primary Liquidity Provider's
receipt of the
Notice of Borrowing for such Final Advance (in the case of clause
(x) above) or
the Regular Distribution Date following such conversion (in the
case of clause
(y) above).
"Lending Office" means the lending office of the Primary Liquidity
Provider presently located at its offices specified for notices
hereunder on the
signature pages to this Agreement, or such other lending office as
the Primary
Liquidity Provider from time to time shall notify the Borrower as
its Lending
Office hereunder; provided that the Primary Liquidity Provider
shall not change
its Lending Office to a lending office outside the United States of
America
except in accordance with Section 3.11 hereof.
"LIBOR Advance" means an Advance bearing interest at a rate based
upon
the LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period,
(i) the rate per annum appearing on display page 3750 (British
Bankers Association-LIBOR) of the Telerate 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 Primary
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 either (a) the
Acceleration of all of the Equipment Notes or (b) a JetBlue
Bankruptcy Event.
"Liquidity Indemnitee" means (i) the Primary Liquidity Provider,
(ii)
the directors, officers, employees and agents of the Primary
Liquidity Provider,
and (iii) the successors and permitted assigns of the persons
described in
clauses (i) and (ii), inclusive.
Revolving Credit Agreement
4
"Maximum Available Commitment" means, subject to the proviso
contained
in the third sentence of Section 2.02(a), at any time of
determination, (a) the
Required Amount at such time less (b) the aggregate amount of each
Interest
Advance outstanding at such time; provided that following a
Downgrade Advance or
a Final Advance, the Maximum Available Commitment shall be zero.
"Maximum Commitment" means initially $15,398,301, as the same may
be
reduced from time to time in accordance with Section 2.04(a).
"Notice of Borrowing" has the meaning assigned to such term in
Section
2.02(e).
"Notice of Replacement Subordination Agent" has the meaning
assigned
to such term in Section 3.08.
"Primary Liquidity Provider" has the meaning assigned to such term
in
the recital of parties to this Agreement.
"Prospectus Supplement" means the final Prospectus Supplement dated
November 7, 2006 relating to the Certificates, as such Prospectus
Supplement may
be amended or supplemented.
"Regulatory Change" has the meaning assigned to such term in
Section
3.01.
"Replenishment Amount" has the meaning assigned to such term in
Section 2.06(b).
"Required Amount" means, for any day, (i) so long as there is no
Interest Advance made hereunder remaining unreimbursed on such day,
the sum of
the aggregate amount of interest, calculated at the rate per annum
equal to the
Capped Interest Rate for the Class G-1 Certificates, that would be
payable on
the Class G-1 Certificates on each of the eight successive
quarterly Regular
Distribution Dates immediately following such day or, if such day
is a Regular
Distribution Date, on such day and the succeeding seven quarterly
Regular
Distribution Dates, in each case calculated on the basis of the
Pool Balance of
the Class G-1 Certificates on such day and without regard to
expected future
payments of principal on the Class G-1 Certificates or (ii) if
there are one or
more Interest Advances made hereunder and remaining unreimbursed on
such day,
the sum of (x) the unreimbursed amount of such Interest Advance(s)
and (y) the
product of (A) the Undrawn Percentage and (B) the amount determined
pursuant to
clause (i) as if no Interest Advances were outstanding and
unreimbursed on such
date. The "Undrawn Percentage" as of any date is equal to one
hundred percent
minus the sum of the Individual Drawn Percentages for the Interest
Advances that
are unreimbursed as of such date. The "Individual Drawn Percentage"
for any
unreimbursed Interest Advance as of any day is equal to a fraction,
expressed as
a percentage, the numerator of which is the unreimbursed amount of
such Interest
Advance as of such date and the denominator of which is the
Required Amount as
of the date of each such Interest Advance calculated as if no
Interest Advance
were outstanding on the date of such Interest Advance and on the
basis of the
lower of the applicable Stated Interest Rate and the applicable
Capped Interest
Rate as of such date. Repayments of Interest Advances shall be
deemed to have
been made in the order in which such Interest Advances were made.
The Pool
Revolving Credit Agreement
5
Balance solely for purposes of the definition of Required Amount
shall, in the
event of any Policy Provider Election, be deemed to be reduced to
zero.
"Termination Date" means the earliest to occur of the following:
(i)
the Expiry Date; (ii) the date on which the Borrower delivers to
the Primary
Liquidity Provider a certificate, signed by a Responsible Officer
of the
Borrower, certifying that all of the Class G-1 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 Primary Liquidity Provider a certificate, signed by
a
Responsible Officer of the Borrower, certifying that a Replacement
Primary
Liquidity Facility has been substituted for this Agreement in full
pursuant to
Section 3.5(e) of the Intercreditor Agreement; (iv) the fifth
Business Day
following the receipt by the Borrower of a Termination Notice from
the Primary
Liquidity Provider pursuant to Section 6.01 hereof; (v) the date on
which no
Advance is, or may (including by reason of reinstatement as herein
provided)
become, available for a Borrowing hereunder; (vi) the Liquidity
Provider
Reimbursement Date; (vii) the date on which a Special Termination
occurs; and
(viii) the Special Distribution Date (as defined in the
Intercreditor Agreement)
with respect to the proceeds of a Final Disposition (as defined in
the
Intercreditor Agreement).
"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).
"Trust" means the trust established pursuant to the Class G-1 Trust
Agreement.
"Unapplied Downgrade Advance" means any Downgrade Advance other
than
an Applied Downgrade Advance.
"Unpaid Advance" has the meaning assigned to such term in Section
2.05.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01 The Advances. The Primary Liquidity Provider hereby
irrevocably agrees, on the terms and conditions hereinafter set
forth, to make
Advances to the Borrower from time to time on any Business Day
during the period
from the Effective Date until 12:00 noon (New York City time) on
the Expiry Date
(unless the obligations of the Primary Liquidity Provider shall be
earlier
terminated in accordance with the terms of Section 2.04(b)) in an
aggregate
amount at any time outstanding not to exceed the Maximum
Commitment.
Section 2.02 Making the Advances. (a) Interest Advances shall be
made in
one or more Borrowings by delivery to the Primary 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 with respect to
the Class G-1
Certificates at the Stated Interest Rate for the applicable
Interest Period
Revolving Credit Agreement
6
(calculated assuming that JetBlue will not cure any Payment
Default) in
accordance with Section 3.5(a) of the Intercreditor Agreement. Each
Interest
Advance made hereunder shall automatically reduce the Maximum
Available
Commitment (based on the Required Amount as recalculated as a
result of making
such Interest Advance) and the amount available to be borrowed
hereunder by
subsequent Advances by the amount of such Interest Advance (subject
to
reinstatement as provided in the next sentence). Subject to the
provisions of
Section 3.5(g) of the Intercreditor Agreement, upon repayment to
the Primary
Liquidity Provider in full or in part of the amount of any Interest
Advance made
pursuant to this Section 2.02(a), together with accrued interest
thereon (as
provided herein), the Maximum Available Commitment shall be
reinstated by an
amount equal to the product of (A) the then Required Amount
(calculated as if no
Interest Advances are outstanding) and (B) a fraction, the
numerator of which is
the amount of such reimbursement (assuming that Interest Advances
are reimbursed
in the order in which they were made) in respect of principal of
such Interest
Advance and the denominator of which is the Required Amount at the
date of such
Interest Advance (calculated as if no Interest Advances are then
outstanding and
on the basis of the lower of the applicable Stated Interest Rate
and the
applicable Capped Interest Rate as of such date) but not to exceed
the Maximum
Commitment; provided, however, that the Maximum Available
Commitment shall not
be so reinstated at any time if (x) any Equipment Note is a
Non-Performing
Equipment Note and a Liquidity Event of Default shall have occurred
and be
continuing or (y) a Final Advance or a Downgrade Advance has been
made.
(b) Reserved.
(c) A Downgrade Advance shall be made in a single Borrowing upon
the
occurrence of a Downgrade Event (as provided for in Section 3.5(c)
of the
Intercreditor Agreement) unless a Replacement Primary Liquidity
Facility to
replace this Agreement shall have been previously delivered to the
Borrower in
accordance with Section 3.5(c), by delivery to the Primary
Liquidity Provider of
a written and completed Notice of Borrowing in substantially the
form of Annex
III attached hereto, signed by a Responsible Officer of the
Borrower, in an
amount equal to the Maximum Available Commitment at such time, and
shall be used
to fund the Primary Cash Collateral Account in accordance with
Sections 3.5(c)
and 3.5(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 Primary
Liquidity
Provider pursuant to Section 6.01 hereof by delivery to the Primary
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 Primary Cash Collateral Account in
accordance with
Sections 3.5(f) and 3.5(i) of the Intercreditor Agreement.
(e) Each Borrowing shall be made on notice in writing (a "Notice of
Borrowing") in substantially the form required by Section 2.02(a),
2.02(b),
2.02(c) or 2.02(d), as the case may be, given by the Borrower to
the Primary
Liquidity Provider. Each Notice of Borrowing shall be effective
upon delivery of
a copy thereof to the Primary Liquidity Provider's New York branch
at the
address specified in Section 7.02. If a Notice of Borrowing is
delivered by the
Borrower in respect of any Borrowing no later than 12:00 p.m. (New
York City
time) on a
Revolving Credit Agreement
7
Business Day, upon satisfaction of the conditions precedent set
forth in Section
4.02 with respect to a requested Borrowing, the Primary Liquidity
Provider shall
make available to the Borrower, in accordance with its payment
instructions, the
amount of such Borrowing in 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 on a day that is not a
Business Day
or after 12:00 p.m. (New York City time) on a Business Day, upon
satisfaction of
the conditions precedent set forth in Section 4.02 with respect to
a requested
Borrowing, the Primary Liquidity Provider shall make available to
the Borrower,
in accordance with its payment instructions, the amount of such
Borrowing in
U.S. dollars and in 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 Primary 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 Primary
Liquidity Provider shall be fully discharged of its obligation
hereunder with
respect to such Notice of Borrowing, and the Primary Liquidity
Provider shall
not thereafter be obligated to make any further Advances hereunder
in respect of
such Notice of Borrowing to the Borrower or to any other Person. If
the Primary
Liquidity Provider makes an Advance requested pursuant to a Notice
of Borrowing
before 12:00 noon (New York City time) on the second Business Day
after the date
of payment specified in Section 2.02(e), the Primary Liquidity
Provider shall
have fully discharged its obligations hereunder with respect to
such Advance and
an event of default shall not have occurred hereunder. Following
the making of
any Advance pursuant to Section 2.02(b), 2.02(c) or 2.02(d) hereof
to fund the
Primary Cash Collateral Account, the Primary Liquidity Provider
shall have no
interest in or rights to the Primary Cash Collateral Account, the
funds
constituting such Advance or any other amounts from time to time on
deposit in
the Primary Cash Collateral Account; provided that the foregoing
shall not
affect or impair the obligations of the Subordination Agent to make
the
distributions contemplated by Section 3.5(e) or 3.5(f) of the
Intercreditor
Agreement and provided further, that the foregoing shall not affect
or impair
the rights of the Primary Liquidity Provider to provide written
instructions
with respect to the investment and reinvestment of amounts in the
Primary Cash
Collateral Account to the extent provided in Section 2.2(b) of the
Intercreditor
Agreement. By paying to the Borrower proceeds of Advances requested
by the
Borrower in accordance with the provisions of this Agreement, the
Primary
Liquidity Provider makes no representation as to, and assumes no
responsibility
for, the correctness or sufficiency for any purpose of the amount
of the
Advances so made and requested.
Section 2.03 Fees. The Borrower agrees to pay to the Primary
Liquidity
Provider the fees set forth in the Fee Letter applicable to this
Agreement.
Section 2.04 Reductions or Termination of the Maximum Commitment.
(a)
Automatic Reduction. Promptly following each date on which the
Required Amount
is reduced as a result of a reduction in the Pool Balance of the
Class G-1
Certificates (including by reason of a Policy Provider Election
with respect to
the Series G Equipment Note) or otherwise, the Maximum
Revolving Credit Agreement
8
Commitment shall automatically be reduced to an amount equal to
such reduced
Required Amount (as calculated by the Borrower). The Borrower shall
give notice
of any such automatic reduction of the Maximum Commitment to the
Primary
Liquidity Provider 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 Downgrade Advance or Final
Advance hereunder or the occurrence of the Termination Date, the
obligation of
the Primary Liquidity Provider to make further Advances hereunder
shall
automatically and irrevocably terminate, and the Borrower shall not
be entitled
to request any further Borrowing hereunder.
Section 2.05 Repayments of Interest Advances or the Final Advance.
Subject
to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby agrees,
without
notice of an Advance or demand for repayment from the Primary
Liquidity Provider
(which notice and demand are hereby waived by the Borrower), to
pay, or to cause
to be paid, to the Primary Liquidity Provider on each date on which
the Primary
Liquidity Provider shall make an Interest Advance or the Final
Advance, an
amount equal to (a) the amount of such Advance (any such Advance,
until repaid,
is referred to herein as an "Unpaid Advance"), plus (b) interest on
the amount
of each such Unpaid Advance as provided in Section 3.07 hereof;
provided that if
(i) the Primary Liquidity Provider shall make a Provider Advance at
any time
after making one or more Interest Advances which shall not have
been repaid in
accordance with this Section 2.05 or (ii) this Primary Liquidity
Facility shall
become a Downgraded Facility at any time when unreimbursed Interest
Advances
have reduced the Maximum Available Commitment to zero, then such
Interest
Advances shall cease to constitute Unpaid Advances and shall be
deemed to have
been changed into an Applied Downgrade Advance for all purposes of
this
Agreement (including, without limitation, for the purpose of
determining when
such Interest Advance is required to be repaid to the Primary
Liquidity Provider
in accordance with Section 2.06 and for the purposes of Section
2.06(b)). The
Borrower and the Primary Liquidity Provider agree that the
repayment in full of
each Interest Advance and Final Advance on the date such Advance is
made is
intended to be a contemporaneous exchange for new value given to
the Borrower by
the Primary Liquidity Provider.
Section 2.06 Repayments of Downgrade Advances. (a) Amounts advanced
hereunder in respect of a Downgrade Advance shall be deposited in
the Primary
Cash Collateral Account and invested and withdrawn from the Primary
Cash
Collateral Account as set forth in Sections 3.5(c), 3.5(d), 3.5(e)
and 3.5(f) of
the Intercreditor Agreement. Subject to Sections 2.07 and 2.09, the
Borrower
agrees to pay to the Primary Liquidity Provider, on each Regular
Distribution
Date, commencing on the first Regular Distribution Date after the
making of a
Downgrade Advance, interest on the principal amount of any such
Downgrade
Advance as provided in Section 3.07 hereof; provided, however, that
amounts in
respect of a Downgrade Advance withdrawn from the Primary Cash
Collateral
Account for the purpose of paying interest on the Class G-1
Certificates in
accordance with Section 3.5(f) of the Intercreditor Agreement (the
amount of any
such withdrawal being an "Applied Downgrade 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 Downgrade
Advance, the Primary Liquidity Provider delivers a Termination
Notice to the
Borrower pursuant to Section 6.01 hereof, such Downgrade
Revolving Credit Agreement
9
Advance shall thereafter be treated as a Final Advance under this
Agreement for
purposes of determining the Applicable Liquidity Rate for interest
payable
thereon and the obligation for repayment thereof and as an Applied
Downgrade
Advance, for purposes of Section 2.6(c) of the Intercreditor
Agreement. Subject
to Sections 2.07 and 2.09 hereof, immediately upon the withdrawal
of any amounts
from the Primary Cash Collateral Account on account of a reduction
in the
Required Amount, the Borrower shall repay to the Primary Liquidity
Provider a
portion of the Downgrade 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 Downgrade Advance (or any portion
thereof) is outstanding, upon the deposit in the Primary Cash
Collateral Account
of any amount pursuant to clause "fourth" of Section 3.2 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
Downgrade
Advances (and of Downgrade 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
(if multiple
Applied Downgrade Advances are outstanding, such Replenishment
Amount to be
applied in the order in which such Applied Downgrade Advances have
been made,
starting with the earliest) and (ii) the aggregate outstanding
principal amount
of all Unapplied Downgrade Advances shall be automatically
increased by the
amount of such Replenishment Amount.
(c) Upon the provision of a Replacement Primary Liquidity Facility
in
replacement of this Agreement in accordance with Section 3.5(e) of
the
Intercreditor Agreement, and upon the payment in full of the Class
G-1
Certificates, amounts remaining on deposit in the Primary Cash
Collateral
Account after giving effect to any Applied Downgrade Advance on the
date of such
replacement shall be reimbursed to the replaced Primary Liquidity
Provider, but
only to the extent such amounts are necessary to repay in full to
the replaced
Primary Liquidity Provider all amounts owing to it hereunder.
Section 2.07 Payments to the Primary Liquidity Provider Under the
Intercreditor Agreement. In order to provide for payment or
repayment to the
Primary Liquidity Provider of any amounts hereunder, the
Intercreditor Agreement
provides that amounts available and referred to in Articles II and
III of the
Intercreditor Agreement, to the extent payable to the Primary
Liquidity Provider
pursuant to the terms of the Intercreditor Agreement (including,
without
limitation, Section 3.5(f) of the Intercreditor Agreement), shall
be paid to the
Primary Liquidity Provider in accordance with the terms thereof.
Amounts so paid
to the Primary Liquidity Provider shall be applied by the Primary
Liquidity
Provider to Liquidity Obligations then due and payable in
accordance with the
Intercreditor Agreement and shall discharge in full the
corresponding
obligations of the Borrower hereunder (or, if not provided for in
the
Intercreditor Agreement, then in such manner as the Primary
Liquidity Provider
shall deem appropriate).
Section 2.08 Book Entries. The Primary Liquidity Provider shall
maintain in
accordance with its usual practice an account or accounts
evidencing the
indebtedness of the Borrower resulting from Advances made from time
to time and
the amounts of principal and interest payable hereunder and paid
from time to
time in respect thereof; provided, however, that
Revolving Credit Agreement
10
the failure by the Primary Liquidity Provider to maintain such
account or
accounts shall not affect the obligations of the Borrower in
respect of
Advances.
Section 2.09 Payments from Available Funds Only. All payments to be
made by
the Borrower under this Agreement including, without limitation,
Section 7.05
and 7.07 hereof, shall be made only from the amounts that
constitute Scheduled
Payments, Special Payments or payments under the Fee Letter and
Section 8.1 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
Primary
Liquidity Provider agrees that it will look solely to such amounts
in respect of
payments to be made by the Borrower hereunder 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 the Note
Purchase
Agreement. Amounts on deposit in the Primary Cash Collateral
Account shall be
available to the Borrower to make payments under this Agreement
only to the
extent and for the purposes expressly contemplated in Section
3.5(f) of the
Intercreditor Agreement. Nothing herein shall limit or otherwise
affect the
right of the Primary Liquidity Provider to receive payment from the
Policy
Provider under Section 3.6(d) of the Intercreditor Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01 Increased Costs. The Borrower shall pay to the Primary
Liquidity Provider from time to time such amounts as may be
necessary to
compensate the Primary Liquidity Provider for any increased costs
incurred by
the Primary Liquidity Provider which are attributable to its making
or
maintaining any LIBOR Advances hereunder or its obligation to make
any such
Advances hereunder, or any reduction in any amount receivable by
the Primary
Liquidity Provider under this Agreement or the Intercreditor
Agreement in
respect of any such Advances or such obligation (such increases in
costs and
reductions in amounts receivable being herein called "Additional
Costs"),
resulting from any change after the date of this Agreement in U.S.
federal,
state, municipal, or foreign laws or regulations (including
Regulation D of the
Board of Governors of the Federal Reserve System), or the adoption
or making
after the date of this Agreement of any interpretations,
directives, or
requirements applying to a class of banks including the Primary
Liquidity
Provider under any U.S. federal, state, municipal, or any foreign
laws or
regulations (whether or not having the force of law) by any court,
central bank
or monetary authority charged with the interpretation or
administration thereof
(a "Regulatory Change"), which: (1) changes the basis of taxation
of any amounts
payable to the Primary Liquidity Provider under this Agreement in
respect of any
such Advances or such obligation (other than with respect to
Excluded Taxes); or
(2) imposes or modifies any reserve, special deposit, compulsory
loan or similar
requirements relating to any extensions of credit or other assets
of, or any
deposits with other liabilities of, the Primary Liquidity Provider
(including
any such Advances or such obligation or any deposits referred to in
the
definition of LIBOR Rate or related definitions).
Revolving Credit Agreement
11
The Primary Liquidity Provider will notify the Borrower of any
event
occurring after the date of this Agreement that will entitle the
Primary
Liquidity Provider to compensation pursuant to this Section 3.01 as
promptly as
practicable after it obtains knowledge thereof and determines to
request such
compensation, which notice shall describe in reasonable detail the
calculation
of the amounts owed under this Section. Determinations by the
Primary Liquidity
Provider for purposes of this Section 3.01 of the effect of any
Regulatory
Change on its costs of making or maintaining Advances or on amounts
receivable
by it in respect of Advances, and of the additional amounts
required to
compensate the Primary Liquidity Provider in respect of any
Additional Costs,
shall be prima facie evidence of the amount owed under this
Section.
Notwithstanding the preceding two paragraphs, the Primary Liquidity
Provider and the Subordination Agent agree that any permitted
assignee or
participant of the initial Primary Liquidity Provider which is not
a bank shall
not be entitled to the benefits of the preceding two paragraphs
(but without
limiting the provisions of Section 7.08 hereof).
Section 3.02 Capital Adequacy. If (1) the adoption, after the date
hereof,
of any applicable gover
