<PAGE>
EXHIBIT 4.6
--------------------------------------------------------------------------------
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
to be maintained by the Liquidity
Provider or any
