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EXHIBIT 4.7
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REVOLVING CREDIT AGREEMENT
Dated as of December 23, 1997
between
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Subordination Agent,
as agent and trustee for the
United Airlines 1997-1B Pass Through Trust,
as Borrower
and
KREDITANSTALT FUR WIEDERAUFBAU,
as Liquidity Provider
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Relating to
United Airlines 1997-1B Pass Through Trust
United Airlines Enhanced Pass Through Certificates, Series 1997-1B
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01 The Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.02 Making the Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.03 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.04 Automatic Adjustments and Termination of the 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 Liquidity Provider Under the Intercreditor Agreement . . . . . . . . . . . 10
Section 2.08 Book Entries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.09 Payments from Available Funds Only . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.02 Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 3.03 Payments Free of Deductions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 3.04 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.05 Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.06 Payment on Non-Business Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.07 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.08 Replacement of Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.09 Funding Loss Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.10 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to Effectiveness of Section 2.01. . . . . . . . . . . . . . . . . . . 15
Section 4.02 Conditions Precedent to Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE V
COVENANTS
Section 5.01 Affirmative Covenants of the Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 5.02 Negative Covenants of the Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01 Liquidity Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VII
MISCELLANEOUS
Section 7.01 Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 7.02 Notices, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 7.03 No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 7.04 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 7.05 Indemnification; Survival of Certain Provisions . . . . . . . . . . . . . . . . . . . . . . 19
Section 7.06 Liability of the Liquidity Provider . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 7.07 Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 7.08 Binding Effect; Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 7.09 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 7.10 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 7.11 Submission to Jurisdiction; Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . 22
Section 7.12 Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.13 Entirety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.14 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.15 LIQUIDITY PROVIDER'S OBLIGATION
TO MAKE ADVANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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Annex I Interest Advance Notice of Borrowing
Annex II Downgrade Advance Notice of Borrowing
Annex III Final Advance Notice of Borrowing
Annex IV Notice of Termination
Annex V Notice of Replacement Borrower
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REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT, dated as of December 23,
1997, between FIRST SECURITY BANK, 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 B Trust (as defined below) (the "Borrower"), and KREDITANSTALT
FUR WIEDERAUFBAU, a corporation organized under the public law of the Federal
Republic of Germany ("KfW" or the "Liquidity Provider").
WHEREAS, pursuant to the Class B Trust Agreement (as defined
below), the Class B Trust is issuing the Class B Certificates; and
WHEREAS, the Borrower, in order to support the timely payment
of a portion of the interest on the Class B Certificates in accordance with
their terms, has requested the Liquidity Provider to enter into this Agreement,
providing in part for the Borrower to request in specified circumstances that
Advances be made hereunder.
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms. (a) Definitions. As used
in this Agreement and unless otherwise expressly indicated, the following
capitalized terms shall have the following respective meanings for all purposes
of this Agreement:
"Additional Costs" has the meaning specified in Section 3.01.
"Advance" means an Interest Advance, a Final Advance, a
Downgrade Advance, an Applied Downgrade Advance or an Unpaid Advance, as the
case may be.
"Applicable Liquidity Rate" has the meaning specified in
Section 3.07(g).
"Applicable Margin" means (w) with respect to any Unpaid
Advance (including an Applied Downgrade Advance) that is a LIBOR Advance, 1.00%
and (x) with respect to any Unpaid Advance (including an Applied Downgrade
Advance) that is a Base Rate Advance, 1.00%.
"Applied Downgrade Advance" has the meaning specified in
Section 2.06(a).
"Available Commitment" means, at any time of determination, an
amount equal to (i) the Commitment at such time, less (ii) subject to the
proviso contained in the last sentence
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of Section 2.02(a), the aggregate amount of each Interest Advance outstanding
at such time; provided, however, that following a Downgrade Advance or a Final
Advance, the Available Commitment shall be zero.
"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
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 (.25)%.
"Base Rate Advance" means an Advance that bears interest at a
rate based upon the Base Rate.
"Borrower" has the meaning specified in the recitals to this
Agreement.
"Borrowing" means the making of Advances requested by delivery
of a Notice of Borrowing.
"Business Day" means any day (x) other than a Saturday or
Sunday or a day on which commercial banks are required or authorized to close
in Chicago, Illinois, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ or the city and
state in which the Trustee, the Subordination Agent or any Indenture Trustee
maintains its corporate trust office or receives and disburses funds, and (y)
on which dealings are carried on in the London interbank market.
"Calculation Agent" means the Liquidity Provider.
"Capped Interest Rate" means Capped LIBOR plus 0.325% per
annum.
"Capped LIBOR" means 10.04% per annum; provided, however, that
the Capped LIBOR means 9.57% per annum (i) in the event no Registration Event
(as defined in the Registration Rights Agreement) occurs on or prior to the
180th day after the Closing Date, from July 1, 1998 through but excluding the
date on which such Registration Event occurs or (ii) in the event the Shelf
Registration Statement (as defined in the Registration Rights Agreement) ceases
to be effective for more than 60 days, whether or not consecutive during any
12-month period, during the period from the 61st day of such applicable
12-month period until such time as the Shelf Registration Statement again
becomes effective.
"Commitment" means initially $16,881,773 ("Initial
Commitment"), as the same may be reduced or increased from time to time in
accordance with Section 2.04(a).
"Downgrade Advance" means an Advance made pursuant to Section
2.02(b).
"Effective Date" has the meaning specified in Section 4.01.
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"Excluded Taxes" means (i) any Taxes imposed on, based on, or
measured by the overall net income, capital, franchises, or receipts (other
than Taxes which are or are in the nature of sales or use Taxes or value added
Taxes) of the Liquidity Provider or any of its Lending Offices, (ii)
withholding Taxes imposed under laws in effect on the date hereof by the United
States on payments to a recipient in the jurisdiction in which the Liquidity
Provider's initial Lending Office is located, and (iii) withholding Taxes
imposed by the United States on payments to a recipient in any other
jurisdiction to which such Lending Office 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 Liquidity Provider acting from an office in such
jurisdiction than would be required on payments to such 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).
"Expiry Date" means March 2, 2004.
"Final Advance" means an Advance made pursuant to Section
2.02(c).
"Indenture Trustee" means, with respect to any Indenture, the
Indenture Trustee thereunder.
"Initial Commitment" has the meaning specified in the
definition of "Commitment" in this Section 1.01.
"Intercreditor Agreement" means the Intercreditor Agreement,
dated as of December 23, 1997, among the Trustee, each Liquidity Provider, each
Above-Cap Liquidity 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:
(1) the period beginning on the third Business Day
following the Liquidity Provider's receipt of the Notice of Borrowing
for such LIBOR Advance and ending on the next Regular Distribution
Date; and
(2) each subsequent period commencing on the last day of
the 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
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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).
"Interest Period Available Amount" means, at any time, the
lesser of (i) the Interest Period Commitment and (ii) the Available Commitment.
"Interest Period Commitment" means, at any time, an amount
equal to the product of the Commitment at such time times 1/6.
"KfW" has the meaning specified in the recital of parties to
this Agreement.
"Leased Aircraft Participation Agreement" means, with respect
to the Indenture pertaining to each Leased Aircraft, the "Participation
Agreement" referred to therein.
"Lending Office" means the lending office of the Liquidity
Provider, presently located at Frankfurt, Germany, or such other lending office
as the Liquidity Provider from time to time shall notify the Borrower as its
lending office hereunder.
"LIBOR" means, with respect to any Interest Period, the
interest rate per annum (calculated on the basis of a 360-day year and actual
days elapsed) at which deposits in United States dollars are offered to prime
banks in the London interbank market as indicated on display page 3750 (British
Bankers Association-LIBOR) of the Dow ▇▇▇▇▇ Markets Service (or such other page
as may replace such display page 3750 for the purpose of displaying London
interbank offered rates for United States dollar deposits) or, if not so
indicated, the average (rounded upwards to the nearest 1/100%), as determined
by the Calculation Agent, of such rates as indicated on the Reuters Screen LIBO
Page (or such other page as may replace such Reuters Screen LIBO Page for the
purpose of displaying London interbank offered rates for United States dollar
deposits) or, if neither such alternative is indicated, the average (rounded
upwards to the nearest 1/100%), as determined by the Calculation Agent, of such
rates offered by the London Reference Banks to prime banks in the London
interbank market, in each case at or about 11:00 a.m. (London time) on the day
two LIBOR Business Days prior to the first day of such Interest Period for
deposits of a duration equal to such Interest Period (or such other period most
nearly corresponding to such period) in an amount substantially equal to the
principal amount of the applicable LIBOR Advance as of the first day of such
Interest Period. The Calculation Agent will, if necessary, request that each
of the London Reference Banks provide a quotation of its rate. If at least two
such quotations are provided, the rate will be the average of the quotations
(rounded upwards to the nearest 1/100%). If no such quotation can be obtained,
the rate will be LIBOR for the immediately preceding Interest Period.
"LIBOR Advance" means an Advance bearing interest at a rate
based upon LIBOR.
"LIBOR Business Day" means any day other than a Saturday or
Sunday or a day on which commercial banks are required or authorized to close
in New York, New York or London, England.
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"London Reference Banks" means the principal London offices of
National Westminster Bank Plc, Barclays Bank Plc and Bayrische Landesbank
Girozentrale, or such other bank or banks as may from time to time be agreed to
by United and the Calculation Agent.
"Liquidity Event of Default" means the occurrence of either
(a) the acceleration of all of the Equipment Notes or (b) a United Bankruptcy
Event.
"Liquidity Indemnitee" means (i) the Liquidity Provider, (ii)
each Affiliate of the Liquidity Provider, (iii) the directors, officers,
employees, servants and agents of the Liquidity Provider and its Affiliates,
and (iv) the successors and permitted assigns of the persons described in
clauses (i) through (iii), inclusive.
"Liquidity Provider" has the meaning specified in the recital
of parties to this Agreement.
"Non-Excluded Tax" has the meaning specified in Section 3.03.
"Notice of Borrowing" has the meaning specified in Section
2.02(d).
"Notice of Replacement Borrower" has the meaning specified in
Section 3.08.
"Offering Memorandum" means the Offering Memorandum, dated
December 18, 1997, relating to the Certificates, as such Offering Memorandum
may be amended or supplemented.
"Owned Aircraft Participation Agreement" means, with respect
to the Indenture pertaining to each Owned Aircraft, the "Participation
Agreement" referred to therein.
"Participating Institution" has the meaning specified in
Section 7.08(b).
"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.
"Registration Event" has the meaning set forth in the
Registration Rights Agreements.
"Regulatory Change" has the meaning specified in Section 3.01.
"Remaining Commitment Amount" means, at any time of
determination, an amount equal to (i) the Commitment, less (ii) the product of
(A) the Interest Period Commitment times (B) the number of Unpaid Advances that
are Interest Advances.
"Replenishment Amount" has the meaning assigned to such term
in Section 2.06(b).
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"Required Amount" means, for any day, the sum of the aggregate
amount of interest, calculated at the rate per annum equal to the Capped
Interest Rate for the Class B Certificates, that would be payable on the Class
B Certificates on each of the six successive quarterly Regular Distribution
Dates following such day or, if such day is a Regular Distribution Date, on
such day and the succeeding five quarterly Regular Distribution Dates, in each
case calculated on the basis of the Pool Balance of the Class B Certificates on
such day and without regard to expected future payments of principal on the
Class B Certificates.
"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 B Certificates have been paid in
full (or provision has been made for such payment in accordance with the
Intercreditor Agreement and the 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 Primary
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; 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 IV to this Agreement.
"Unpaid Advance" has the meaning specified 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:
"Above-Cap Liquidity Provider," "Additional Payments," "Affiliate,"
"Certificates," "Class A Certificates,""Class B Cash Collateral
Account," "Class B Certificateholders,""Class B Certificates," "Class
B Trust," "Class B Trust Agreement," "Class C Certificates," "Class D
Certificates," "Closing Date," "Distribution Date," "Equipment Notes,"
"Fee Letter," "Indenture," "Initial Purchasers," "Investment
Earnings," "Leased Aircraft", "Primary Liquidity Facility," "▇▇▇▇▇'▇,"
"Note Purchase Agreement," "Operative Agreements," "Owned Aircrafts",
"Participation Agreements," "Performing Equipment Note," "Performing
Note Deficiency," "Person," "Pool Balance," "Purchase Agreement,"
"Rating Agency," "Registration Rights Agreement," "Regular
Distribution Date," "Replacement Primary Liquidity Facility,"
"Responsible Officer," "Scheduled Payment," "Special Payment,"
"Standard & Poor's," "Stated Interest Rate," "Subordination Agent,"
"Taxes," "Threshold Rating," "Triggering Event," "Trust Agreement,"
"Trustee," "United," "United Bankruptcy Event" and "Written Notice."
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ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01 Advances. The Liquidity Provider hereby
irrevocably agrees, on the terms and conditions hereinafter set forth, to make
Advances to the Borrower from time to time on any Business Day during the
period from the Effective Date until 12:00 noon (New York City time) on the
Expiry Date (unless the obligations of the Liquidity Provider shall be earlier
terminated in accordance with the terms of Section 2.04) in an aggregate amount
at any time outstanding not to exceed the Commitment.
Section 2.02 Making the Advances. (a) Each "Interest
Advance" shall be made in a single Borrowing by delivery to the Liquidity
Provider of a written and completed Notice of Borrowing in substantially the
form of Annex I, signed by a Responsible Officer of the Borrower, such Interest
Advance in an amount not exceeding the Interest Period Available Amount at such
time and shall be used solely for the payment when due of interest on the Class
B 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 Available Commitment and the amount available to
be borrowed hereunder by subsequent Advances by the amount of such Interest
Advance (subject to reinstatement as provided in the next sentence). Upon
repayment to the Liquidity Provider in full of the amount of any Interest
Advance made pursuant to this Section 2.02(a), together with accrued interest
thereon (as provided herein), the Available Commitment shall be reinstated by
the amount of such repaid Interest Advance; provided, however, that the
Available Commitment shall not be so reinstated at any time if (i) a Triggering
Event shall have occurred and be continuing and (ii) there is a Performing Note
Deficiency.
(b) A "Downgrade Advance" shall be made in a single
Borrowing upon a downgrading of the Liquidity Provider's long-term unsecured
debt rating issued by any Rating Agency below the Threshold Rating (as provided
for in Section 3.6(c) of the Intercreditor Agreement) unless a Replacement
Primary Liquidity Facility shall have been delivered to the Borrower in
accordance with said Section 3.6(c), by delivery to the Liquidity Provider of a
written and completed Notice of Borrowing in substantially the form of Annex
II, signed by a Responsible Officer of the Borrower, in an amount equal to the
Remaining Commitment Amount at such time (but not to exceed the Available
Commitment at such time), and shall be used to fund the Class B Cash Collateral
Account in accordance with Section 3.6(f). Upon such downgrading, the
Liquidity Provider shall promptly deliver notice thereof to the Borrower, the
Trustee and United.
(c) 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, by delivery to the Liquidity Provider of a
written and completed Notice of Borrowing in substantially the form of Annex
III, signed by a Responsible Officer of the Borrower, in an amount equal to the
Remaining Commitment Amount at such time (but not to exceed the Available
Commitment at such time), and shall be used to fund the Class B Cash Collateral
Account (in accordance with Section 3.6(i) of the Intercreditor Agreement).
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(d) 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) or 2.02(c), as the case may be, given not later than 12:00 Noon
(Chicago time) on the second Business Day prior to the day of the proposed
Borrowing by the Borrower to the Liquidity Provider. Upon satisfaction of the
conditions precedent set forth in Section 4.02 with respect to a requested
Borrowing, the Liquidity Provider shall, before 12:00 Noon (Chicago time) on
the date of such Borrowing or on such later Business Day specified by the
Borrower in such Notice of Borrowing, make available for the account of its
Lending Office, in U.S. dollars and in immediately available funds, the amount
of such Borrowing to be paid to the Borrower in accordance with its payment
instructions. If a Notice of Borrowing is delivered by the Borrower in respect
of any Borrowing after 12:00 Noon (Chicago time) on a Business Day, the
Liquidity Provider shall, before 12:00 Noon (Chicago time) on the third
Business Day 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,
make available to the Borrower, in accordance with its payment instructions, in
U.S. dollars and in immediately available funds, the amount of such 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.
(e) 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 (including the
holder of any Class B Certificate or the Trustee) who makes to the Trustee or
the Borrower a demand for payment with respect to any Class B Certificate.
Following the making of any Advance pursuant to Section 2.02(b) or Section
2.02(c) to fund the Class B Cash Collateral Account, the Liquidity Provider
shall have no interest in or rights to the Class B Cash Collateral Account,
such Advance or any other amounts from time to time on deposit in the Class B
Cash Collateral Account; provided, however, that the foregoing shall not affect
or impair the obligations of the Subordination Agent to make the distributions
contemplated by Section 3.6(e) or (f) of the Intercreditor Agreement. By
paying to the Borrower proceeds of Advances requested by the Borrower in
accordance with the provisions of this Agreement, the Liquidity Provider makes
no representation as to, and assumes no responsibility for, the correctness or
sufficiency for any purpose of the amount of the Advances so made and
requested.
Section 2.03 Fees. The Borrower agrees to pay to the
Liquidity Provider the fees set forth in the Fee Letter.
Section 2.04 Automatic Adjustments and Termination of the
Commitment.
(a) Automatic Adjustments. Promptly following each date
on which the Required Amount is reduced or increased, as the case may be, as a
result of a reduction or increase, respectively, in the Pool Balance of the
Class B Certificates or otherwise, the Commitment shall automatically be
reduced or increased to an amount determined in accordance
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with the following formula (provided that the Commitment shall in no event
exceed the Initial Commitment): the product of (x) 1.5, multiplied by, (y) the
Capped Interest Rate, multiplied by (z) the Pool Balance of the Class B
Certificates (as calculated by the Borrower). The Borrower shall give notice
of any such automatic reduction or increase of the 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 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 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 2.07 and 2.09, the Borrower hereby agrees
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. Subject to Sections
2.06, 2.07 and 2.09, unless otherwise waived by the Liquidity Provider, the
Borrower shall be obligated, without notice of an Advance or demand for
repayment from the Liquidity Provider (which notice and demand are hereby
waived by the Borrower), to repay the Liquidity Provider for all Advances on
the same day as made. 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 Downgrade Advances. (a)
Amounts advanced hereunder in respect of a Downgrade Advance shall be deposited
in the Class B Cash Collateral Account, invested and withdrawn from the Class B
Cash Collateral Account as set forth in Sections 3.6(c) 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 Downgrade Advance, interest on the principal amount
of any such Downgrade Advance as provided in Section 3.07; provided, however,
that amounts in respect of a Downgrade Advance withdrawn from the Class B Cash
Collateral Account for the purpose of paying interest on the Class B
Certificates in accordance with Section 3.6(f) of the Intercreditor Agreement
(the amount of any such withdrawal being, an "Applied Downgrade Advance") shall
be treated as an Interest Advance under this Agreement for purposes of
determining the Applicable Liquidity Rate for interest payable thereon; and
provided, further, that if, following the making of a Downgrade Advance, the
Liquidity Provider delivers a Termination Notice to the Borrower pursuant to
Section 6.01, such Downgrade Advance shall thereafter be treated as a Final
Advance under this Agreement for purposes of determining the Applicable
Liquidity Rate for interest payable thereon. Immediately upon the withdrawal
of any amounts from the Class B Cash Collateral Account on account of a
reduction in the Required Amount and Commitment, the Borrower shall repay to
the Liquidity Provider a portion of the Downgrade Advances in a principal
amount equal to the amount of such reduction, plus interest on the principal
amount prepaid as provided in Section 3.07. Immediately upon any increase in
the
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Required Amount and Commitment, the Liquidity Provider shall advance to the
Borrower as a portion of the Downgrade Advances, for deposit into the Class B
Cash Collateral Account, a principal amount equal to the amount of such
increase.
(b) At any time when an Applied Downgrade Advance (or any
portion thereof) is outstanding, upon the deposit in the Class B 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 the
balance thereof up to the amount of the Commitment, (i) the aggregate
outstanding principal amount of all Applied Downgrade Advances shall be
automatically reduced by the amount of such Replenishment Amount and (ii) the
principal amount of the outstanding Downgrade Advance 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 3.6(e) of
the Intercreditor Agreement, amounts remaining on deposit in the Class B Cash
Collateral Account after giving effect to any application of funds therefrom to
any payment of interest on the Class B Certificates 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 in the
order of priority required by the applicable provisions of Articles II and III
of the Intercreditor Agreement.
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
amounts received by it that constitute Scheduled Payments or Special Payments or
payments under Section 7(c) of the Leased Aircraft Participation Agreement,
Section 5(b) of the Owned Participation Agreement and Section 9 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
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Intercreditor Agreement. The Liquidity Provider agrees that it shall 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 or the Intercreditor Agreement. Amounts on deposit in the
Class B Cash Collateral Account shall be available to the Borrower to make
payments only to the extent and for the purposes expressly contemplated in
Section 3.6(f) 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 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, or municipal, or any foreign
laws or regulations, or the adoption or making after such date of any
interpretation, regulation, directive, guideline, requirement or request
whether or not having the force of law, by any court or governmental 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 any taxes described in Section 3.03); 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 or
related definitions). The Liquidity Provider agrees to use reasonable efforts
(consistent with applicable legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if making such change would avoid the need
for, or reduce the amount of, any amount payable under this Section 3.01 that
may thereafter accrue and would not, in the reasonable judgment of the
Liquidity Provider, be otherwise disadvantageous to the Liquidity Provider.
The Liquidity Provider shall notify the Borrower of any event
occurring after the date of this Agreement that shall 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 3.01. 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 3.01.
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Section 3.02 Capital Adequacy. If (1) compliance with
any judicial, administrative or other governmental interpretation of any law or
regulation or (2) compliance by the Liquidity Provider or any corporation
controlling the Liquidity Provider with any guideline or request from any
central bank or other governmental authority (whether or not having the force
of law) has the effect of requiring an increase in the amount of capital
required or expected to be maintained by the Liquidity Provider or any
corporation controlling the Liquidity Provider, and such increase is based upon
the Liquidity Provider's obligations hereunder and other similar obligations,
the Borrower shall pay to the Liquidity Provider such additional amount as
shall be reasonably allocable to the Liquidity Provider's obligations to the
Borrower hereunder. The Liquidity Provider agrees to use reasonable efforts
(consistent with applicable legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if making such change would avoid the need
for, or reduce the amount of, any amount payable under this Section 3.02 that
may thereafter accrue and would not, in the reasonable judgment of the
Liquidity Provider, be otherwise disadvantageous to the Liquidity Provider.
The Liquidity Provider shall notify the Borrower of any event
occurring after the date of this Agreement that shall entitle the Liquidity
Provider to compensation pursuant to this Section 3.02 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 3.02. Determinations by the Liquidity
Provider for purposes of this Section 3.02 of the effect of any increase in the
amount of capital required to be maintained by the bank and of the amount
allocable to the Liquidity Provider's obligations to the Borrower hereunder
shall be prima facie evidence of the amounts owed under this Section 3.02.
Section 3.03 Payments Free of Deductions. All
payments made by the Borrower under this Agreement shall be made free and clear
of, and without reduction for or on account of, any Taxes, excluding Excluded
Taxes (such non-excluded taxes being referred to herein, collectively, as
"Non-Excluded Taxes"). If any Non-Excluded Taxes are required to be withheld
or deducted from any amounts payable to the Liquidity Provider under this
Agreement, the Borrower shall (a) within the time prescribed therefor by
applicable law pay to the appropriate governmental or taxing authority the full
amount of any such Non-Excluded Taxes (and any additional Non-Excluded Taxes in
respect of the payment required under clause (b) below) and make such reports
or returns in connection therewith at the time or times and in the manner
prescribed by applicable law, and (b) pay to the Liquidity Provider an
additional amount which (after deduction of all such Non-Excluded Taxes) shall
be sufficient to yield to the Liquidity Provider the full amount which would
have been received by it had no such withholding or deduction been made.
Within 30 days after the date of each payment hereunder, the Borrower shall
furnish to the Liquidity Provider the original or a certified copy of (or other
documentary evidence of) the payment of the Non-Excluded Taxes applicable to
such payment. The Liquidity Provider agrees to use reasonable efforts
(consistent with applicable legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if making such change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of the Liquidity Provider, be
otherwise materially disadvantageous to the Liquidity Provider or require the
Liquidity Provider to incur any cost or expenses for which it is not
indemnified by the Borrower. The Liquidity Provider shall deliver to the
Borrower such certificates and documents as may be reasonably requested by the
Borrower
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and required by applicable law to establish that payments hereunder are exempt
from (or entitled to a reduced rate of) withholding Tax.
Section 3.04 Payments. The Borrower shall make or
cause to be made each payment to the Liquidity Provider under this Agreement so
as to cause the same to be received by the Liquidity Provider not later than
1:00 P.M. (Chicago time) on the day when due. The Borrower shall make all such
payments in lawful money of the United States of America, to the Liquidity
Provider in immediately available funds, by wire transfer to the office of
Citibank, N.A. New York City, for credit to KfW, Account No. ▇▇▇-▇▇▇-▇▇.
Section 3.05 Computations. All computations of
interest based on the Base Rate shall be made on the basis of a year of 365 or
366 days, as the case may be, and all computations of interest based on the
LIBOR shall be made on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest is payable.
Section 3.06 Payment on Non-Business Days. Whenever
any payment to be made hereunder shall be stated to be due on a day other than
a Business Day, such payment shall be made on the next Business Day and such
extension of time shall in such case be included in the computation of payment
of interest or fees, as the case may be. If any payment in respect of interest
on an Advance is so deferred to the next Business Day, such deferral shall not
delay the commencement of the next Interest Period for such Advance (if such
Advance is a LIBOR Advance) or reduce the number of days for which interest
shall be payable on such Advance on the next interest payment date for such
Advance.
Section 3.07 Interest. (a) The Borrower shall pay,
or shall cause to be paid, interest on (i) the unpaid principal amount of each
Advance from and including the date of such Advance (or, in the case of an
Applied Downgrade Advance, from and including the date on which the amount
thereof was withdrawn from the Class B Cash Collateral Account to pay interest
on the Class B Certificates) to but excluding the date such principal amount
shall be paid in full (or, in the case of an Applied Downgrade Advance, the
date on which the Class B Cash Collateral Account is fully replenished in
respect of such Advance) and (ii) any other amount due hereunder (whether fees,
commissions, expenses or other amounts or, installments of interest on Advances
or any such other amount) which is not paid when due (whether at stated
maturity, by acceleration or otherwise) from and including the due date thereof
to but excluding the date such amount is paid in full, in each such case, at a
fluctuating interest rate per annum for each day equal to the Applicable
Liquidity Rate (as defined below) for such Advance or such other amount as in
effect for such day, but in no event at a rate per annum greater than the
maximum rate permitted by applicable law; provided, however, that, if at any
time the otherwise applicable interest rate as set forth in this Section 3.07
shall exceed the maximum rate permitted by applicable law, then any subsequent
reduction in such interest rate shall not reduce the rate of interest payable
pursuant to this Section 3.07 below the maximum rate permitted by applicable
law until the total amount of interest accrued equals the amount of interest
that would have accrued if such otherwise applicable interest rate as set forth
in this Section 3.07 had at all times been in effect. Nothing contained in
this Section 3.07 shall require the Borrower to pay any
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amount under this Section 3.07 other than to the extent the Borrower shall have
funds available therefor.
(b) Except as provided in Section 3.07(e), each Advance
shall be either a Base Rate Advance or a LIBOR Advance as provided in this
Section or Section 3.10. Each Advance will be a Base Rate Advance for the
period from the date of its borrowing to (but excluding) the third Business Day
following the Liquidity Provider's receipt of the Notice of Borrowing for such
Advance. Thereafter, such Advance shall be a LIBOR Advance.
(c) Each LIBOR Advance shall bear interest during each
Interest Period at the LIBOR for such Interest Period plus the Applicable
Margin for such LIBOR Advance, payable in arrears on the last day of such
Interest Period and, in the event of the payment of principal of such LIBOR
Advance on a day other than such last day, on the date of such payment (to the
extent of interest accrued on the amount of principal repaid).
(d) Each Base Rate Advance shall bear interest at the
Base Rate plus the Applicable Margin for such Base Rate Advance, payable in
arrears on each Regular Distribution Date and, in the event of the payment of
principal of such Base Rate Advance on a day other than a Regular Distribution
Date, on the date of such payment (to the extent of interest accrued on the
amount of principal repaid).
(e) Each Downgrade Advance other than an Applied
Downgrade Advance shall bear interest during the period from and including the
date of the making of such Downgrade Advance through but excluding the Expiry
Date (or, if earlier, the date of repayment thereof or of conversion thereof
into a Final Advance), in an amount equal to the Investment Earnings on amounts
on deposit in the Class B Cash Collateral Account for such period, payable in
arrears on each Regular Distribution Date.
(f) Each amount not paid when due hereunder (whether
fees, commissions, expenses or other amounts or, to the extent permitted by
applicable law, installments of interest on Advances) shall bear interest at
the Base Rate plus 1.00% per annum.
(g) Each change in the Base Rate shall become effective
immediately. The rates of interest specified in this Section 3.07 with respect
to any Advance or other amount shall be referred to as the "Applicable
Liquidity Rate."
Section 3.08 Replacement of Borrower. Subject to
Section 5.02, from time to time and subject to the successor Borrower's meeting
the eligibility requirements set forth in Section 6.9 of the Intercreditor
Agreement applicable to the Subordination Agent, upon the effective date and
time specified in a written and completed Notice of Replacement Borrower in
substantially the form of Annex V (a "Notice of Replacement Borrower")
delivered to the Liquidity Provider by the then Borrower, the successor
Borrower designated therein shall be substituted for as the Borrower for all
purposes hereunder.
Section 3.09 Funding Loss Indemnification. The
Borrower shall pay to the Liquidity Provider, upon the request of the Liquidity
Provider, such amount or amounts as shall
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be sufficient (in the reasonable opinion of the Liquidity Provider) to
compensate it for any loss, cost, or expense incurred by reason of the
liquidation or redeployment of deposits or other funds acquired by the
Liquidity Provider to fund or maintain any LIBOR Advance (but excluding loss of
anticipated profits) incurred as a result of:
(1) Any repayment of a LIBOR Advance, any
conversion of a LIBOR Advance to a Base Rate Advance or a conversion
of a LIBOR Advance to an Advance bearing interest in accordance with
Section 3.07(e), in any case on a date other than the last day of the
Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR
Advance on the date for Borrowing specified in the relevant notice
under Section 2.02.
Section 3.10 Illegality. Notwithstanding any other
provision in this Agreement, if any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Liquidity
Provider (or its Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency shall make it unlawful or impossible for the Liquidity Provider (or its
Lending Office) to maintain or fund its LIBOR Advances, then upon notice to the
Borrower by the Liquidity Provider, the outstanding principal amount of the
LIBOR Advances shall be converted to Base Rate Advances (a) immediately upon
demand of the Liquidity Provider, if such change or compliance with such
request, in the judgment of the Liquidity Provider, requires immediate
repayment; or (b) at the expiration of the last Interest Period to expire after
the effective date of any such change or request.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to Effectiveness of
Section 2.01. Section 2.01 of this Agreement shall become effective on and as
of the first date (the "Effective Date") on which the following conditions
precedent have been satisfied or waived:
(a) The Liquidity Provider shall have received on or
before the Closing Date each of the following, each dated such date,
and in the case of each document delivered pursuant to paragraphs (i),
(ii) and (iii), in form and substance satisfactory to the Liquidity
Provider:
(i) This Agreement duly executed on behalf of
the Borrower;
(ii) The Intercreditor Agreement duly executed
on behalf of each of the parties thereto;
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(iii) Fully executed copies of each of the
Operative Agreements (other than this Agreement and the
Intercreditor Agreement);
(iv) A copy of the Offering Memorandum and
specimen copies of the Class B Certificates;
(v) An executed copy of each opinion,
document, instrument and certificate delivered pursuant to the
Class B Trust Agreement, the Intercreditor Agreement, the Note
Purchase Agreement and the other Operative Agreements
(together with, in the case of each such opinion, other than
the opinion of counsel for the Initial Purchasers, a letter
from the counsel rendering such opinion to the effect that the
Liquidity Provider is entitled to rely on such opinion as if
it were addressed to the Liquidity Provider);
(vi) Evidence that there shall have been made
and shall be in full force and effect, all filings, recordings
and/or registrations, and there shall have been given or taken
any notice or other similar action as may be reasonably
necessary or, to the extent reasonably requested by the
Liquidity Provider, reasonably advisable, in order to
establish, perfect, protect and preserve the right, title and
interest, remedies, powers, privileges, liens and security
interests of, or for the benefit of, the Trustee and the
Liquidity Provider created by the Operative Agreements;
(vii) Evidence that, on the Effective Date, the
Class A Certificates and the Class B Certificates shall
receive long-term credit ratings from ▇▇▇▇▇'▇ of not lower
than "AAa2" and "A1," respectively, and from Standard & Poor's
of not lower than "AAA" and "AA-," respectively;
(viii) An agreement from United, pursuant to
which United agrees to provide copies of its Quarterly Reports
on Form 10-Q and Annual Reports on Form 10-K to the Liquidity
Provider promptly after becoming publicly available; and
(ix) Such other documents, instruments,
opinions and approvals as the Liquidity Provider shall have
reasonably requested.
(b) The following statements shall be true on and as of
the Effective Date:
(i) The representations and warranties in the
Note Purchase Agreement and each of the Participation
Agreements are true and correct on and as of the Effective
Date as though made on and as of the Effective Date;
(ii) No event has occurred and is continuing, or
would result from the entering into of this Agreement or the
making of any Advance, which constitutes a Liquidity Event of
Default; and
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(iii) There has been no material adverse change in
the financial condition or results of operations of United and
its subsidiaries taken as a whole since September 30, 1997.
(c) The Liquidity Provider shall have received payment in
full of all fees and other sums required to be paid to or for the
account of the Liquidity Provider on or prior to the Effective Date.
(d) All conditions precedent to the issuance of the
Certificates under the Trust Agreements shall have been satisfied, all
conditions precedent to the effectiveness of the other Liquidity
Facilities shall have been satisfied, and all conditions precedent to
the purchase of the Certificates by the Initial Purchasers under the
Purchase Agreement shall have been satisfied (unless any of such
conditions precedent shall have been waived by the Initial
Purchasers).
Section 4.02 Conditions Precedent to Borrowing. The
obligation of the Liquidity Provider to make an Advance on the occasion of each
Borrowing shall be subject to the conditions precedent that the Effective Date
shall have occurred and, prior to the date of such Borrowing, the Borrower
shall have delivered a Notice of Borrowing which conforms to the terms and
conditions of this Agreement and has been completed as may be required by the
relevant form of the Notice of Borrowing for the type of Advances requested.
ARTICLE V
COVENANTS
Section 5.01 Affirmative Covenants of the Borrower.
So long as any Advance shall remain unpaid or the Liquidity Provider shall have
any Commitment hereunder or the Borrower shall have any obligation to pay any
amount to the Liquidity Provider hereunder, the Borrower shall, unless the
Liquidity Provider shall otherwise consent in writing:
(a) Performance of Agreements. Punctually pay or
cause to be paid all amounts payable by it under this Agreement and the other
Operative Agreements and observe and perform in all material respects the
conditions, covenants and requirements applicable to it contained in this
Agreement and the other Operative Agreements.
(b) Reporting Requirements. Furnish to the
Liquidity Provider with reasonable promptness, such other information and data
with respect to the transactions contemplated by the Operative Agreements as
from time to time may be reasonably requested by the Liquidity Provider; and
permit the Liquidity Provider, upon reasonable notice, to inspect the
Borrower's books and records with respect to such transactions and to meet with
officers and employees of the Borrower to discuss such transactions.
(c) Certain Operative Agreements. Furnish to the
Liquidity Provider with reasonable promptness any Operative Agreement entered
into after the date hereof.
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Section 5.02 Negative Covenants of the Borrower. So
long as any Advance shall remain unpaid or the Liquidity Provider shall have
any Commitment hereunder or the Borrower shall have any obligation to pay any
amount to the Liquidity Provider hereunder, the Borrower shall not appoint or
permit or suffer to be appointed any successor Borrower without the written
consent of the Liquidity Provider, which consent shall not be unreasonably
withheld or delayed.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01 Liquidity Events of Default. If (a) any
Liquidity Event of Default occurs and (b) there is a Performing Note Deficiency,
the Liquidity Provider may, in its discretion, deliver to the Borrower a
Termination Notice, the effect of which shall be to cause (i) this Agreement to
expire on the fifth Business Day after the date on which such Termination Notice
is received by the Borrower, (ii) the Borrower to promptly request, and the
Liquidity Provider to promptly make, a Final Advance in accordance with Section
2.02(c) and Section 3.6(i) of the Intercreditor Agreement, (iii) all other
outstanding Advances to be automatically converted into Final Advances for
purposes of determining the Applicable Liquidity Rate for interest payable
thereon, and (iv) subject to Sections 2.07 and 2.09, all Advances, any accrued
interest thereon and any other amounts outstanding hereunder to become
immediately due and payable to the Liquidity Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Amendments, Etc. No amendment or waiver
of any provision of this Agreement, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Liquidity Provider, and, in the case of an amendment,
the Borrower, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
Section 7.02 Notices, Etc. Except as otherwise
expressly provided herein, all notices and other communications provided for
hereunder shall be in writing (including sent by telecopier):
Borrower: FIRST SECURITY BANK, NATIONAL ASSOCIATION
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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Liquidity
Provider: KREDITANSTALT FUR ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Attention: Head of Aircraft
Finance Department K 111 b 1
Telephone: ▇▇▇-▇▇-▇▇-▇▇▇▇-▇
Telecopy: 011-49-69-7431-2944
or, as to each of the foregoing, at such other address as shall be designated
by such Person in a Written Notice to the others. All such notices and
communications shall be effective (i) if given by telecopier, when transmitted
to the telecopier number specified above with receipt confirmed, (ii) if given
by mail, when deposited in the mails addressed as specified above, and (iii) if
given by other means, when delivered at the address specified above, except
that Written Notices to the Liquidity Provider pursuant to the provisions of
Articles II and III shall not be effective until received by the Liquidity
Provider. A copy of all notices delivered hereunder to either party shall in
addition be delivered to each of the parties to the Participation Agreements at
their respective addresses set forth therein.
Section 7.03 No Waiver; Remedies. No failure on the
part of the Liquidity Provider to exercise, and no delay in exercising, any
right under this Agreement shall operate as a waiver thereof; nor shall any
single or partial exercise of any right under this Agreement preclude any other
or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
Section 7.04 Further Assurances. The Borrower agrees
to do such further acts and things and to execute and deliver to the Liquidity
Provider such additional assignments, agreements, powers and instruments as the
Liquidity Provider may reasonably require or deem advisable to carry into
effect the purposes of this Agreement and the other Operative Agreements or to
better assure and confirm unto the Liquidity Provider its rights, powers and
remedies hereunder and under the other Operative Agreements.
Section 7.05 Indemnification; Survival of Certain
Provisions. The Liquidity Provider shall be indemnified hereunder to the
extent and in the manner described in Section 7(c) of the Leased Aircraft
Participation Agreement and Section 5(b) of the Owned Participation Agreement.
In addition, the Borrower agrees to indemnify, protect, defend and hold
harmless the Liquidity Provider from, against and in respect of, and shall pay
on demand, all Expenses of any kind or nature whatsoever that may be imposed,
incurred by or asserted against any Liquidity Indemnitee, in any way relating
to, resulting from, or arising out of or in connection with any action, suit or
proceeding by any third party against such Liquidity Indemnitee and relating to
this Agreement, the Intercreditor Agreement, the Fee Letter, the Intercreditor
Agreement or any Participation Agreement; provided, however, that the Borrower
shall not be required to indemnify, protect, defend and hold harmless any
Liquidity Indemnitee in respect of any Expense of such Liquidity Indemnitee to
the extent such Expense is (i) attributable to the
19
24
gross negligence or willful misconduct of such Liquidity Indemnitee or any
other Liquidity Indemnitee, (ii) ordinary and usual operating overhead expense
or (iii) attributable to the failure by such Liquidity Indemnitee or any other
Liquidity Indemnitee to perform or observe any agreement, covenant or condition
on its part to be performed or observed in this Agreement, the Intercreditor
Agreement, the Fee Letter or any other Operative Agreement to which it is a
party. The provisions of Sections 3.01, 3.02, 3.03, 3.09 7.05 and 7.07 shall
survive the termination of this Agreement.
Section 7.06 Liability of the Liquidity Provider. (a)
Neither the Liquidity Provider nor any of its officers or directors shall be
liable or responsible for: (i) the use which may be made of the Advances or any
acts or omissions of the Borrower or any beneficiary or transferee in
connection therewith; (ii) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents should prove
to be in any or all respects invalid, insufficient, fraudulent or forged; or
(iii) the making of Advances by the Liquidity Provider against delivery of a
Notice of Borrowing and other documents which do not comply with the terms
hereof; provided, however, that the Borrower shall have a claim against the
Liquidity Provider, and the Liquidity Provider shall be liable to the Borrower,
to the extent of any damages suffered by the Borrower which were the result of
(A) the Liquidity Provider's willful misconduct or negligence (except to the
extent that such conduct would otherwise be indemnified pursuant to Section
7.05, in which case gross negligence shall apply) in determining whether
documents presented hereunder comply with the terms hereof, or (B) any breach
by the Liquidity Provider of any of the terms of this Agreement, including, but
not limited to, the Liquidity Provider's failure to make lawful payment
hereunder after the delivery to it by the Borrower of a Notice of Borrowing
complying with the terms and conditions hereof.
(b) Neither the Liquidity Provider nor any of its
officers, employees, directors or Affiliates shall be liable or responsible in
any respect for (i) any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with this Agreement or any Notice of Borrowing delivered hereunder,
or (ii) any action, inaction or omission which may be taken by it in good
faith, absent willful misconduct or negligence (except to the extent that such
conduct would otherwise be indemnified pursuant to Section 7.05, in which case
gross negligence shall apply) (in which event the extent of the Liquidity
Provider's potential liability to the Borrower shall be limited as set forth in
the preceding paragraph), in connection with this Agreement or any Notice of
Borrowing.
Section 7.07 Costs, Expenses and Taxes. The Borrower
agrees to pay, or cause to be paid (A) on the Effective Date and on such later
date or dates on which the Liquidity Provider shall make demand, all reasonable
out-of-pocket costs and expenses of the Liquidity Provider in connection with
the preparation, negotiation, execution, delivery, filing and recording of this
Agreement, any other Operative Agreement and any other documents which may be
delivered in connection with this Agreement, including, without limitation, the
reasonable fees and expenses of outside counsel for the Liquidity Provider and
(B) on demand, all reasonable costs and expenses of the Liquidity Provider
(including reasonable counsel fees and expenses) in connection with (i) the
enforcement of this Agreement or any other Operative Agreement, (ii) the
modification or amendment of, or supplement to, this Agreement or any other
Operative Agreement or such other documents which may be delivered in
connection herewith or therewith
20
25
(whether or not the same shall become effective) or (iii) any action or
proceeding relating to any order, injunction, or other process or decree
restraining or seeking to restrain the Liquidity Provider from paying any
amount under this Agreement, the Intercreditor Agreement or any other Operative
Document or otherwise affecting the application of funds in the Cash Collateral
Accounts. In addition, the Borrower shall pay any and all recording, stamp and
other similar taxes and fees payable or determined to be payable in connection
with the execution, delivery, filing and recording of this Agreement any other
Operative Agreement and such other documents, and agrees to save the Liquidity
Provider harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes or fees.
Section 7.08 Binding Effect; Participations. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrower
and the Liquidity Provider and their respective successors and assigns, except
that neither the Liquidity Provider (except as otherwise provided in this
Section 7.08) nor the Borrower shall have the right to assign its rights
hereunder or any interest herein without the prior written consent of the other
party, subject to the requirements of Section 7.08(b). The Liquidity Provider
may grant participations herein or in any of its rights or security hereunder
and under the other Operative Agreements to such Persons as the Liquidity
Provider may in its sole discretion select, subject to the requirements of
Section 7.08(b). No such participation by the Liquidity Provider, however,
shall relieve the Liquidity Provider of its obligations hereunder. In
connection with any participation or any proposed participation, the Liquidity
Provider may disclose to the participant or the proposed participant any
information that the Borrower is required to deliver or to disclose to the
Liquidity Provider pursuant to this Agreement. The Borrower acknowledges and
agrees that the Liquidity Provider's source of funds may derive in part from
its participants. Accordingly, references in this Agreement and the other
Operative Agreements to determinations, reserve and capital adequacy
requirements, increased costs, reduced receipts and the like as they pertain to
the Liquidity Provider shall be deemed also to include those of each of its
participants (subject, in each case, to the maximum amount that would have been
incurred by or attributable to the Liquidity Provider directly if the Liquidity
Provider, rather than the participant, had held the interest participated).
(b) If, pursuant to Section 7.08(a) above, the Liquidity
Provider sells any participation in this Agreement to any bank or other entity
(each, a "Participating Institution"), then, concurrently with the
effectiveness of such participation, the Participating Institution shall (i)
represent to the Liquidity Provider (for the benefit of the Liquidity Provider
and the Borrower) either (A) that it is incorporated under the laws of the
United States or a state thereof or (B) that under applicable law and treaties,
no taxes shall be required to be withheld by the Borrower or the Liquidity
Provider with respect to any payments to be made to such Participating
Institution in respect of this Agreement, (ii) furnish to the Liquidity
Provider and the Borrower either (x) a statement that it is incorporated under
the laws of the United States or a state thereof or (y) if it is not so
incorporated, two copies of a properly completed United States Internal Revenue
Service Form 4224 or Form 1001, as appropriate, or other applicable form,
certificate or document prescribed by the Internal Revenue Service certifying,
in each case, such Participating Institution's entitlement to a complete
exemption from United States federal withholding tax in respect to any and all
payments to be made hereunder, and (iii) agree (for the benefit of the
Liquidity Provider and the Borrower) to provide the Liquidity Provider and the
Borrower a new Form 4224 or Form 1001, as appropriate, (A) on or before the
date that any such form expires
21
26
or becomes obsolete or (B) after the occurrence of any event requiring a change
in the most recent form previously delivered by it and prior to the immediately
following due date of any payment by the Borrower hereunder, certifying in the
case of a Form 1001 or Form 4224 that such Participating Institution is
entitled to a complete exemption from United States federal withholding tax on
payments under this Agreement. Unless the Borrower has received forms or other
documents reasonably satisfactory to it (and required by applicable law) from
the Participating Institution indicating that payments hereunder are not
subject to United States federal withholding tax, the Borrower shall withhold
taxes as required by law from such payments at the applicable statutory rate
without any obligation to make additional payments under Section 3.03.
(c) Notwithstanding the other provisions of this Section
7.08, the Liquidity Provider may assign and pledge all or any portion of the
Advances owing to it to any Federal Reserve Bank or the United States Treasury
as collateral security pursuant to Regulation A of the Board of Governors of
the Federal Reserve System and any Operating Circular issued by such Federal
Reserve Bank, provided that any payment in respect of such assigned Advances
made by the Borrower to the Liquidity Provider in accordance with the terms of
this Agreement shall satisfy the Borrower's obligations hereunder in respect
of such assigned Advance to the extent of such payment. No such assignment
shall release the Liquidity Provider from its obligations hereunder.
Section 7.09 Severability. Any provision of this
Agreement which is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition, unenforceability or non-authorization without invalidating
the remaining provisions hereof or affecting the validity, enforceability or
legality of such provision in any other jurisdiction.
Section 7.10 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF (OTHER THAN
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW)) AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 7.11 Submission to Jurisdiction; Waiver of
Jury Trial; Waiver of Immunity.
(a) Each of the parties hereto hereby irrevocably
and unconditionally:
(i) submits for itself and its property
in any legal action or proceeding relating to this Agreement
or any other Operative Agreement, or for recognition and
enforcement of any judgment in respect hereof or thereof, to
the non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States of America
for the Southern District of New York, and the appellate
courts from any thereof;
22
27
(ii) consents that any such
action or proceeding may be brought in such courts, and waives
any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;
(iii) agrees that service of
process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any
substantially similar form and mail), postage prepaid, to each
party hereto at its address set forth in Section 7.02, or at
such other address of which the Liquidity Provider shall have
been notified pursuant thereto; and
(iv) agrees that nothing herein
shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to ▇▇▇
in any other jurisdiction.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH
HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE
RELATIONSHIP THAT IS BEING ESTABLISHED, including, without limitation, contract
claims, tort claims, breach of duty claims and all other common law and
statutory claims. The Borrower and the Liquidity Provider each warrant and
represent that it has reviewed this waiver with its legal counsel, and that it
knowingly and voluntarily waives its jury trial rights following consultation
with such legal counsel. THIS WAIVER IS IRREVOCABLE, AND CANNOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
(c) The Liquidity Provider hereby waives any
immunity it may have from the jurisdiction of the courts of the United States
or of any State and waives any immunity any of its properties located in the
United States may have from attachment or execution upon a judgment entered by
any such court under the United States Foreign Sovereign Immunities Act of 1976
or any similar successor legislation.
Section 7.12 Execution in Counterparts. This
Agreement may be executed in any number of counterparts and by different
parties hereto on separate counterparts, each of which counterparts, when so
executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same Agreement.
Section 7.13 Entirety. This Agreement and the other
Operative Agreements constitute the entire agreement of the parties hereto with
respect to the subject matter hereof and supersedes all prior understandings
and agreements of such parties.
23
28
Section 7.14 Headings. Section headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
Section 7.15 LIQUIDITY PROVIDER'S OBLIGATION TO MAKE
ADVANCES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF
THE LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO
DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL
BE UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE
STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
24
29
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first set forth above.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Subordination Agent and Trustee, as Borrower
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
REVOLVING CREDIT AGREEMENT
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇-▇▇
▇-▇ PASS THROUGH TRUST
30
KREDITANSTALT FUR
WIEDERAUFBAU,
as Liquidity Provider
By: /s/ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: VP
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Project Manager
REVOLVING CREDIT AGREEMENT
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇-▇▇
▇-▇ PASS THROUGH TRUST
31
Annex I to
Revolving Credit Agreement
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "Borrower"), hereby certifies to Kreditanstalt fur Wiederaufbau
(the "Liquidity Provider"), with reference to the Revolving Credit Agreement,
dated as of December 23, 1997, between the Borrower and the Liquidity Provider
(the "Liquidity Agreement"; the terms defined therein and not otherwise defined
herein being used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under
the Intercreditor Agreement.
(2) The Borrower is delivering this Notice of
Borrowing for the making of an Interest Advance by the Liquidity
Provider to be used for the payment of interest on the Class B
Certificates which was payable on _____________________ in accordance
with the terms and provisions of the Class B Trust Agreement and the
Class B Certificates pursuant to clause sixth of Section 3.2 of the
Intercreditor Agreement or clause eighth of Section 3.3 of the
Intercreditor Agreement, which Advance is requested to be made on
_______________.
(3) The amount of the Interest Advance requested hereby
(i) is $__________, to be applied in respect of the payment of
interest which was due and payable on the Class A Certificates on such
Distribution Date, (ii) does not include any amount with respect to
the payment of principal of, or Additional Payments on, the Class A
Certificates, the Class B Certificates, the Class C Certificates or
the Class D Certificates, or interest on the Class A Certificates, the
Class C Certificates or the Class D Certificates, (iii) was computed
in accordance with the provisions of the Class B Certificates, the
Class B Trust Agreement and the Intercreditor Agreement (a copy of
which computation is attached hereto as Schedule I), (iv) does not
exceed the Interest Period Available Amount on the date hereof, and
(v) has not been and is not the subject of a prior or contemporaneous
Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower shall apply the same in
accordance with the terms of Section 3.2 or 3.3 of the Intercreditor
Agreement, as the case may be, (b) no portion of such amount shall be
applied by the Borrower for any other purpose and (c) no portion of
such amount until so applied shall be commingled with other funds held
by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, the making of the Interest Advance as requested by this Notice of
Borrowing shall automatically reduce, subject to reinstatement in accordance
with the terms of the Liquidity Agreement, the Available Commitment by an
amount equal to the amount of the Interest Advance requested to be made hereby
as set forth in clause (i) of paragraph (3) of this Certificate and such
reduction shall
32
automatically result in corresponding reductions in the amounts available to be
borrowed pursuant to a subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the ____ day of ____________, ___.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Subordination Agent, as Borrower
By:
-----------------------------------------------
Name:
Title:
I-2
33
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest
Advance Notice of Borrowing]
34
Annex II to
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "Borrower"), hereby certifies to Kreditanstalt fur Wiederaufbau
(the "Liquidity Provider"), with reference to the Revolving Credit Agreement
dated as of December 23, 1997, between the Borrower and the Liquidity Provider
(the "Liquidity Agreement"; the terms defined therein and not otherwise defined
herein being used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Downgrade Advance by the Liquidity Provider to
be used for the funding of the Class B Cash Collateral Account in
accordance with Section 3.6(c) of the Intercreditor Agreement by
reason of the downgrading of the long-term unsecured debt rating of
the Liquidity Provider issued by either Rating Agency below the
Threshold Rating, which Advance is requested to be made on __________.
(3) The amount of the Downgrade Advance requested hereby
(i) is $________, which equals the Remaining Commitment Amount on the
date hereof and is to be applied in respect of the funding of the
Class B Cash Collateral Account in accordance with Section 3.6(c) of
the Intercreditor Agreement, (ii) does not include any amount with
respect to the payment of principal of, or Additional Payments on, the
Class B Certificates, or principal of or interest or Additional
Payments on, the Class A Certificates, the Class C Certificates or the
Class D Certificates, (iii) was computed in accordance with the
provisions of the Class B Certificates, the Class B Trust Agreement
and the Intercreditor Agreement (a copy of which computation is
attached hereto as Schedule 1), and (iv) has not been and is not the
subject of a prior or contemporaneous Notice of Borrowing under the
Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower shall deposit such amount in
the Class B Cash Collateral Account and apply the same in accordance
with the terms of Section 3.6(c) of the Intercreditor Agreement, (b)
no portion of such amount shall be applied by the Borrower for any
other purpose and (c) no portion of such amount until so applied shall
be commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Downgrade Advance as requested by
this Notice of Borrowing shall automatically and irrevocably terminate the
obligation of the Liquidity
35
Provider to make further Advances under the Liquidity Agreement; and (B)
following the making by the Liquidity Provider of the Downgrade Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the _____ day of _________, _____.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Subordination Agent, as Borrower
By:
----------------------------------------------
Name:
Title:
II-2
36
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Downgrade Advance Notice of Borrowing]
37
Annex III to
Revolving Credit Agreement
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned borrower (the "Borrower"), hereby certifies to Kreditanstalt fur
Wiederaufbau (the "Liquidity Provider"), with reference to the Revolving Credit
Agreement, dated as of December 23, 1997, between the Borrower and the
Liquidity Provider (the "Liquidity Agreement"; the terms defined therein and
not otherwise defined herein being used herein as therein defined or
referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Final Advance by the Liquidity Provider to be
used for the funding of the Class B Cash Collateral Account in
accordance with Section 3.6(i) of the Intercreditor Agreement by
reason of the receipt by the Borrower of a Termination Notice from the
Liquidity Provider with respect to the Liquidity Agreement, which
Advance is requested to be made on _______________.
(3) The amount of the Final Advance requested hereby (i)
is $______, which equals the Remaining Commitment Amount on the date
hereof and is to be applied in respect of the funding of the Class B
Cash Collateral Account in accordance with Section 3.6(i) of the
Intercreditor Agreement upon receipt by the Borrower of a Termination
Notice from the Liquidity Provider in respect of the Liquidity
Agreement, (ii) does not include any amount with respect to the
payment of principal of, or Additional Payments on, the Class B
Certificates, or principal of, or interest or Additional Payments on,
the Class A Certificates, the Class C Certificates or the Class D
Certificates, (iii) was computed in accordance with the provisions of
the Class B Certificates, the Class B Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached
hereto as Schedule I), and (iv) has not been and is not the subject of
a prior or contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower shall deposit such amount in
the Class B Cash Collateral Account and apply the same in accordance
with the terms of Section 3.6(i) of the Intercreditor Agreement, (b)
no portion of such amount shall be applied by the Borrower for any
other purpose and (c) no portion of such amount until so applied shall
be commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Final Advance as requested by this
Notice of Borrowing shall
38
automatically and irrevocably terminate the obligation of the Liquidity
Provider to make further Advances under the Liquidity Agreement; and (B)
following the making by the Liquidity Provider of the Final Advance requested
by this Notice of Borrowing, the Borrower shall not be entitled to request any
further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the _____ day of ___________, _____.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but solely
as Subordination Agent, as Borrower
By:
---------------------------------------
Name:
Title:
III-2
39
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Final Advance Notice of Borrowing]
40
Annex IV to
Revolving Credit Agreement
NOTICE OF TERMINATION
[Date]
First Security Bank, National Association,
as Subordination Agent, as Borrower
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Revolving Credit Agreement, dated as of December 23, 1997, between First
Security Bank, National Association, as Subordination Agent, as
agent and trustee for the United Airlines 1997-1B Pass
Through Trust, as Borrower, and Kreditanstalt fur
Wiederaufbau (the "Liquidity Agreement")
--------------------------------------------------------------------------------
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.01 of the
Liquidity Agreement, by reason of the occurrence of a Liquidity Event of
Default and a Performing Note Deficiency (each as defined therein), we are
giving this notice to you in order to cause (i) our obligations to make
Advances (as defined therein) under such Liquidity Agreement to terminate on
the fifth Business Day after the date on which you receive this notice and (ii)
you to request a Final Advance under the Liquidity Agreement pursuant to
Section 3.6(i) of the Intercreditor Agreement (as defined in the Liquidity
Agreement) as a consequence of your receipt of this notice.
THIS NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR UNDER
THE LIQUIDITY AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY
AGREEMENT SHALL TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU
RECEIVE THIS NOTICE.
Very truly yours,
KREDITANSTALT FUR WIEDERAUFBAU,
as Liquidity Provider
By:
---------------------------------------
Name:
Title:
cc: First Security Bank, National Association,
as Trustee
41
Annex V to
Revolving Credit Agreement
NOTICE OF REPLACEMENT BORROWER
[Date]
Attention:
Revolving Credit Agreement, dated as of December 23, 1997,
between First Security Bank, National Association as
Subordination Agent, as agent and trustee for the
United Airlines 1997-1B Pass Through Trust, as
Borrower, and Kreditanstalt fur Wiederaufbau
(the "Liquidity Agreement")
Ladies and Gentlemen:
For value received, the undersigned hereby irrevocably transfers to:
----------------------------------
[Name of Transferee]
----------------------------------
[Address of Transferee]
all rights of the undersigned as Borrower under the Liquidity Agreement
referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the first
paragraph of the Liquidity Agreement, pursuant to the terms of Section 8.1 of
the Intercreditor Agreement.
By this transfer, all rights of the undersigned as Borrower
under the Liquidity Agreement are transferred to the transferee and the
transferee shall hereafter have the sole rights as Borrower thereunder. The
undersigned shall pay any costs and expenses of such transfer, including, but
not limited to, transfer taxes or governmental charges.
We ask that this transfer be effective as of __________, ____.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but solely
as Subordination Agent, as Borrower
By:
-----------------------------------
Name:
Title:
VI-2