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<PAGE>
EXHIBIT 4.6
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REVOLVING CREDIT AGREEMENT(2000-3C)
Dated as of November 2, 2000
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
as Subordination Agent, as agent and trustee for the US Airways
Pass Through
Trust 2000-3C
as Borrower
and
MORGAN STANLEY CAPITAL SERVICES INC., as Liquidity Provider
--------------------------------------------------------------------------------
Relating to
US Airways Pass Through Trust 2000-3C
8.39% US Airways Pass Through Certificates,
Series 2000-3C
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TABLE OF CONTENTS
<TABLE>
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Page
<S> <C>
ARTICLE I
DEFINITIONS....................................................
1
Section 1.01. Certain Defined Terms.............................
1
ARTICLE II AMOUNT AND TERMS OF THE
COMMITMENT............................ 8
Section 2.01. The Advances......................................
8
Section 2.02. Making the Advances...............................
8
Section 2.03. Fees..............................................
10
Section 2.04. Reductions, Increases or Termination of
the Maximum Commitment............................ 10
Section 2.05. Repayments of Interest Advances or the
Final Advance..................................... 11
Section 2.06. Repayments of Provider Advances...................
11
Section 2.07. Payments to the Liquidity Provider Under
the Intercreditor Agreement....................... 12
Section 2.08. Book Entries......................................
12
Section 2.09. Payments from Available Funds Only................
13
Section 2.10. Extension of the Expiry Date; Non-Extension
Advance........................................... 13
ARTICLE III OBLIGATIONS OF THE
BORROWER.................................. 13
Section 3.01. Increased Costs...................................
13
Section 3.02. Capital Adequacy..................................
14
Section 3.03. Payments Free of Deductions.......................
15
Section 3.05. Computations......................................
17
Section 3.06. Payment on Non-Business Days......................
17
Section 3.07. Interest..........................................
17
Section 3.08. Replacement of Borrower...........................
18
Section 3.09. Funding Loss Indemnification......................
18
Section 3.10. Illegality........................................
19
ARTICLE IV CONDITIONS
PRECEDENT.......................................... 19
Section 4.01. Conditions Precedent to Effectiveness
of Section 2.01................................... 19
Section 4.02. Conditions Precedent to Borrowing.................
21
ARTICLE V
COVENANTS......................................................
21
Section 5.01. Affirmative Covenants of the Borrower.............
21
Section 5.02. Negative Covenants of the Borrower................
22
ARTICLE VI LIQUIDITY EVENTS OF
DEFAULT................................... 22
Section 6.01. Liquidity Events of Default.......................
22
ARTICLE VII
MISCELLANEOUS................................................
23
Section 7.01. Amendments, Etc...................................
23
Section 7.02. Notices, Etc......................................
23
Section 7.03. No Waiver; Remedies...............................
24
Section 7.04. Further Assurances................................
24
Section 7.05. Indemnification; Survival of Certain
Provisions........................................ 24
Section 7.06. Liability of the Liquidity Provider...............
25
Section 7.07. Costs, Expenses and Taxes.........................
26
Section 7.08. Binding Effect; Participations....................
26
Section 7.09. Severability......................................
28
Section 7.10. GOVERNING LAW.....................................
28
Section 7.11. Submission to Jurisdiction; Waiver of Jury
Trial; Waiver of Immunity......................... 28
Section 7.12. Execution in Counterparts.........................
29
Section 7.13. Entirety..........................................
29
Section 7.14. Headings..........................................
29
Section 7.15. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES..
29
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
EXHIBIT I Form of Guarantee Agreement
</TABLE>
<PAGE>
REVOLVING CREDIT AGREEMENT (2000-3C)
This REVOLVING CREDIT AGREEMENT (2000-3C) dated as of November
2, 2000,
between STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL
ASSOCIATION, a national banking association, not in its
individual capacity but
solely as Subordination Agent under the Intercreditor Agreement
(each as defined
below), as agent and trustee for the Class C Trust (as defined
below) (the
"Borrower"), and MORGAN STANLEY CAPITAL SERVICES INC., a
corporation organized
under the laws of the State of Delaware (the "Liquidity
Provider").
WITNESSETH:
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;
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; and
WHEREAS, the Liquidity Provider has requested Morgan Stanley
Dean Witter &
Co. (the "Guarantor") to enter into a Guarantee Agreement in the
form attached
hereto as Exhibit I, providing for the full and unconditional
guarantee of the
Liquidity Provider's obligations under this Agreement (the
"Guarantee
Agreement").
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:
"Additional Cost" has the meaning assigned to such term in
Section 3.01.
"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 (x) with respect to any Unpaid Advance
or
Applied Provider Advance, 2.0% per annum and (y) with respect
to
<PAGE>
any Unapplied Provider Advance, the rate per annum specified in
the Liquidity
Facility Fee Letter applicable to this Agreement.
"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).
"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 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
Liquidity Provider
from three Federal funds brokers of recognized standing selected
by it, plus (b)
one quarter of one percent (1/4 of 1%) 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
other day
on which insurance companies or commercial banks in New York,
New York, or
commercial banking institutions in Pittsburgh, Pennsylvania and
in the cities in
which the Corporate Trust Office of the Subordination Agent or
any Loan Trustee
or the fiscal agent of the Policy Provider or the office of the
Policy Provider
are located are authorized or obligated by law or executive
order to close.
"Deposit Agreement" means the Deposit Agreement dated as of the
date
hereof between First Security Bank, National Association, as
Escrow Agent and
ABN AMRO Bank N.V., acting through its Chicago branch, as
Depositary, pertaining
to the Class C Certificates, as the same may be amended,
modified or
supplemented from time to time in accordance with the terms
thereof.
"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.
<PAGE>
"Excluded Taxes" means (i) taxes imposed on the overall net
income of the
Liquidity Provider or of its Facility Office by the jurisdiction
where such
Liquidity Provider's principal office or such Facility Office is
located, and
(ii) Excluded Withholding Taxes.
"Excluded Withholding Taxes" means (i) withholding Taxes imposed
by the
United States except (but only in the case of a successor
Liquidity Provider
organized under the laws of a jurisdiction outside the United
States) 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
Facility Office,
after the date on which such successor Liquidity Provider
obtains its interest
or on which the Facility 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 October 31, 2001, initially, or any date to
which the
Expiry Date is extended pursuant to Section 2.10.
"Facility Office" means the Facility Office of the Liquidity
Provider
presently located at New York, New York, or such other Facility
Office as the
Liquidity Provider from time to time shall notify the Borrower
as its Facility
Office hereunder; provided that the Liquidity Provider shall not
change its
Facility Office to another Facility Office outside the United
States of America
except in accordance with Section 3.01, 3.02 or 3.03 hereof.
"Final Advance" means an Advance made pursuant to Section
2.02(d).
"Guarantor" has the meaning assigned to such term in the
preliminary
statements of this Agreement.
"Guarantee Agreement" has the meaning assigned to such term in
the
preliminary statements of this Agreement.
"Intercreditor Agreement" means the Intercreditor Agreement
dated the date
hereof, among the Class C Trustee, the Class G Trustee, the
Liquidity Provider,
the Policy Provider and the Subordination Agent, as the same may
be amended,
supplemented or otherwise modified from time to time in
accordance with its
terms.
"Interest Advance" means an Advance made pursuant to Section
2.02(a).
"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 (x)
the Liquidity Provider's receipt of the Notice of Borrowing for
such
LIBOR
<PAGE>
Advance or (y) the date of the withdrawal of funds from the
Class C
Cash Collateral Account for the purpose of paying interest on
the
Class C Certificates as contemplated by Section 2.06(a) hereof
and,
in either case, ending on the next Regular Distribution Date;
and
(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
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).
"LIBOR Advance" means an Advance bearing interest at a rate
based upon the
LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period:
(i) the rate per annum appearing on display page 3750 (British
Bankers
Association-LIBOR) of the Dow Jones 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 either (a)
the
Acceleration of all of the Equipment Notes (provided that, with
respect to the
period prior to the Delivery Period Expiry Date, such Equipment
Notes have an
aggregate outstanding principal balance in excess of
$250,000,000) or (b) a US
Airways Bankruptcy Event.
"Liquidity Indemnitee" means (i) the Liquidity Provider, (ii)
the
Guarantor, (iii) the respective directors, officers, employees
and agents of the
Liquidity Provider and the Guarantor, and (iv) the successors
and permitted
assigns of the persons described in clauses (i) through (iii),
inclusive.
<PAGE>
"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 initially $19,765,246, as the same
may be
reduced or increased from time to time in accordance with
Section 2.04(a).
"Non-Excluded Tax" has the meaning specified in Section
3.03.
"Non-Extension Advance" means an Advance made pursuant to
Section 2.02(b).
"Notice of Borrowing" has the meaning specified in Section
2.02(e).
"Notice of Replacement Subordination Agent" has the meaning
specified in
Section 3.08.
"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
October 26,
2000 relating to the Certificates, as such Prospectus Supplement
may be amended
or supplemented.
"Provider Advance" means a Downgrade Advance or a Non-Extension
Advance.
"Reference Bank" has the meaning specified in Section
7.08(a).
"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, 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. Notwithstanding the above, in the event of any
Policy Provider
Election, for purposes of the definition of the Required Amount,
the Pool
Balance shall be deemed to be reduced by the amount (if
positive) by which (a)
the then outstanding principal balance of each Series G
Equipment Note in
respect of which such Policy Provider Election has been made
shall exceed (b)
the amount of any Policy Drawings previously paid by the Policy
Provider in
respect of principal on such Series G Equipment Note.
<PAGE>
"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 Class C Trust Agreement) or are otherwise no
longer entitled
to the benefits of this Agreement; (iii) the date on which the
Borrower delivers
to the Liquidity Provider a certificate, signed by a Responsible
Officer of the
Borrower, certifying that a Replacement Liquidity Facility has
been substituted
for this Agreement in full pursuant to Section 3.6(e) of the
Intercreditor
Agreement; (iv) the fifth Business Day following the receipt by
the Borrower 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 Non-Extension Advance" means any Non-Extension
Advance other
than an Applied Non-Extension 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.
(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 G Certificates", "Class C
Cash
Collateral Account", "Class C Certificateholders", "Class C
Certificates",
"Class C Trust", "Class C Trust Agreement", "Class C Trustee",
"Closing Date",
"Controlling Party", "Corporate Trust Office", "Delivery Period
Expiry Date",
"Distribution Date", "Downgraded Facility", "Equipment Notes",
"Final Legal
Distribution Date", "Financing Agreement", "Indenture",
"Interest Payment Date",
"Investment Earnings", "Leased Aircraft", "Liquidity Facility",
"Liquidity
Facility Fee Letter", "Liquidity Obligations", "Loan Trustee",
"Moody's",
"Non-Extended Facility", "Note Purchase Agreement", "Operative
Agreements",
"Owned Aircraft", "Participation Agreement", "Performing
Equipment Note",
"Person", "Policy Drawings", "Policy Provider", "Policy Provider
Election",
"Pool Balance", "Rating Agency", "Ratings Confirmation",
"Regular Distribution
Date", "Replacement Liquidity Facility", "Responsible Officer",
"Scheduled
Payment", "Series G Equipment Note", "Special Payment",
"Standard & Poor's",
"Stated Interest Rate", "Subordination Agent", "Taxes",
"Threshold Rating",
"Trustee", "Underwriters", "Underwriting Agreement", "US
Airways", "US Airways
Bankruptcy Event" and "Written Notice".
<PAGE>
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 1:00 p.m. (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 of all or any part of the
amount of any
Interest Advance made pursuant to this Section 2.02(a), together
with accrued
interest thereon (as provided herein), the Maximum Available
Commitment shall be
reinstated by the amount of such repaid Interest Advance, but
not to exceed the
Maximum Commitment; provided, however, that the Maximum
Available Commitment
shall not be so reinstated at any time if (i) a Liquidity Event
of Default shall
have occurred and be continuing and (ii) there is a Performing
Note Deficiency.
(b) A Non-Extension Advance shall be made in a single Borrowing
if this
Agreement is not extended in accordance with Section 3.6(d) of
the Intercreditor
Agreement (unless a Replacement Liquidity Facility to replace
this Agreement
shall have been delivered to the Borrower as contemplated by
said Section 3.6(d)
within the time period specified in such Section) by delivery to
the Liquidity
Provider of a written and completed Notice of Borrowing in
substantially the
form of Annex II attached hereto, signed by a Responsible
Officer of the
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 Guarantor's short-term unsecured debt rating
issued by either
Rating Agency below the applicable Threshold Rating or the
Guarantee Agreement
ceasing to be in full force and effect or becoming invalid or
unenforceable or
the Guarantor denying its liability thereunder (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) and 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 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 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.
<PAGE>
(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 1:00 p.m. (New York City time) on a
Business Day,
upon satisfaction of the conditions precedent set forth in
Section 4.02 with
respect to a requested Borrowing, the 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 1:00 p.m. (New York City time)
on a Business
Day, upon satisfaction of the conditions precedent set forth in
Section 4.02
with respect to a requested Borrowing, the 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 Liquidity Provider for
such purpose. Each
Notice of Borrowing shall be irrevocable and binding on the
Borrower.
(f) Upon the making of any Advance requested pursuant to a
Notice of
Borrowing, in accordance with the Borrower's payment
instructions, the Liquidity
Provider shall be fully discharged of its obligation hereunder
with respect to
such Notice of Borrowing, and the Liquidity Provider shall not
thereafter be
obligated to make any further Advances hereunder in respect of
such Notice of
Borrowing to the Borrower or to any other Person. If the
Liquidity Provider
makes an Advance requested pursuant to a Notice of Borrowing
before 12:00 noon
(New York City time) on the second Business Day after the date
of payment
specified in said Section 2.02(e), the Liquidity Provider shall
have fully
discharged its obligations hereunder with respect to such
Advance and an event
of default shall not have occurred hereunder. Following the
making of any
Advance pursuant to Section 2.02(b), (c) or (d) hereof to fund
the Class 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 Liquidity Facility Fee Letter
applicable to this
Agreement.
<PAGE>
Section 2.04. Reductions, Increases or Termination of the
Maximum
Commitment.
(a) Automatic Reduction or Increase. Promptly following each
date on which
the Required Amount is (1) reduced as a result of a reduction in
the Pool
Balance of the Class C Certificates or otherwise, (2) increased
as a result of
an increase in the Stated Interest Rate or (3) subsequent to
such an increase
described in clause (2), reduced pursuant to the definition of
"Stated Interest
Rate," the Maximum Commitment shall automatically be reduced or
increased to an
amount equal to such reduced or increased Required Amount (as
calculated by the
Borrower). The Borrower shall give notice of any such automatic
reduction or
increase of the Maximum Commitment to the Liquidity Provider
within two Business
Days thereof. The failure by the Borrower to furnish any such
notice shall not
affect such automatic reduction or increase of the Maximum
Commitment.
(b) Termination. Upon the making of any Provider Advance or
Final Advance
hereunder or the occurrence of the Termination Date, the
obligation of the
Liquidity Provider to make further Advances hereunder shall
automatically and
irrevocably terminate, and the Borrower shall not be entitled to
request any
further Borrowing hereunder.
Section 2.05. Repayments of Interest Advances or the Final
Advance.
Subject to Sections 2.06, 2.07 and 2.09 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 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 hereof; 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
<PAGE>
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 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 6(c)
or 6(b), as the case may be, of the Participation Agreements and
Section 7 of
the Note Purchase Agreement and
<PAGE>
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.
Section 2.10. Extension of the Expiry Date; Non-Extension
Advance. The
Expiry Date shall be automatically extended, effective on the
25th day prior to
each Expiry Date, for a period of 364 days after such Expiry
Date (unless the
obligations of the Liquidity Provider are earlier terminated in
accordance with
the terms hereof), without the necessity of any act on the part
of the Borrower
or the Liquidity Provider, unless the Liquidity Provider shall
advise the
Borrower prior to such 25th day that it does not agree to such
extension of such
Expiry Date, in which event (and 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 such 25th day (but prior
to such 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. The Borrower shall pay to the
Liquidity
Provider from time to time such amounts as may be necessary to
compensate the
Liquidity Provider for any increased costs incurred by the
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 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 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 Liquidity Provider under this Agreement in
respect of any such
Advances (other than 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 Liquidity Provider (including any such Advances or any
deposits referred
to in the definition of LIBOR Rate or related definitions). The
Liquidity
Provider agrees to use reasonable efforts (consistent with
applicable legal and
regulatory restrictions) to change the jurisdiction of its
Facility Office if
making such change would avoid the need for, or reduce the
amount of, any amount
payable under this Section that may thereafter accrue and would
not, in the
reasonable judgment of the Liquidity Provider, be otherwise
disadvantageous to
the Liquidity Provider.
<PAGE>
The Liquidity Provider will notify the Borrower of any event
occurring
after the date of this Agreement that will entitle the Liquidity
Provider to
compensation pursuant to this Section 3.01 as promptly as
practicable after it
obtains knowledge thereof and determines to request such
compensation, which
notice shall describe in reasonable detail the calculation of
the amounts owed
under this Section. Determinations by the Liquidity Provider for
purposes of
this Section 3.01 of the effect of any Regulatory Change on its
costs of making
or maintaining Advances or on amounts receivable by it in
respect of Advances,
and of the additional amounts required to compensate the
Liquidity Provider in
respect of any Additional Costs, shall be prima facie evidence
of the amount
owed under this Section.
Notwithstanding the preceding two paragraphs, the Liquidity
Provider and
the Subordination Agent agree that the initial Liquidity
Provider (i.e., Morgan
Stanley Capital Services Inc.) shall not be entitled to the
benefits of the
preceding two paragraphs; provided, however, any permitted
assignee or
participant of the initial Liquidity Provider which is a bank
organized under
the laws of the United States or any State thereof shall be
entitled to the
benefits of the preceding two paragraphs (subject, in the case
of any permitted
participant, to the limitations set forth in Section 7.08
hereof).
Section 3.02. Capital Adequacy. If (1) the adoption, after the
date
hereof, of any applicable governmental law, rule or regulation
regarding capital
adequacy, (2) any change, after the date hereof, in the
interpretation or
administration of any such law, rule or regulation by any
central bank or other
governmental authority charged with the interpretation or
administration thereof
or (3) compliance by the Liquidity Provider or any corporation
controlling the
Liquidity Provider with any applicable guideline or request of
general
applicability, issued after the date hereof, by any central bank
or other
governmental authority (whether or not having the force of law)
that constitutes
a change of the nature described in clause (2), has the effect
of requiring an
increase in the amount of capital required
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