EXHIBIT 4.15
================================================================================
REVOLVING CREDIT AGREEMENT
(2001-1A-2)
DATED AS OF OCTOBER , 2001
BETWEEN
WILMINGTON TRUST COMPANY,
AS SUBORDINATION AGENT,
AS AGENT AND TRUSTEE FOR THE
SOUTHWEST AIRLINES PASS THROUGH TRUST 2001-1A-2
AS BORROWER
AND
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
ACTING THROUGH ITS NEW YORK BRANCH
AS LIQUIDITY PROVIDER
================================================================================
RELATING TO
SOUTHWEST AIRLINES PASS THROUGH TRUST 2001-1A-2
5.496% SOUTHWEST AIRLINES PASS THROUGH CERTIFICATES,
SERIES 2001-1A-2
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS........................................................................................... 1
Section 1.01. Certain Defined Terms........................................................................ 1
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENT................................................................... 7
Section 2.01. The Advances................................................................................. 7
Section 2.02. Making the Advances.......................................................................... 7
Section 2.03. Fees......................................................................................... 9
Section 2.04. Reductions or Termination of the Maximum Commitment.......................................... 9
Section 2.05. Repayments of Interest Advances or the Final Advance......................................... 9
Section 2.06. Repayments of Provider Advances............................................................. 10
Section 2.07. Payments to the Liquidity Provider Under the Intercreditor Agreement........................ 11
Section 2.08. Book Entries................................................................................ 11
Section 2.09. Payments from Available Funds Only.......................................................... 11
Section 2.10. Extension of the Expiry Date; Non-Extension Advance......................................... 11
ARTICLE III OBLIGATIONS OF THE BORROWER ........................................................................12
Section 3.01. Increased Costs............................................................................. 12
Section 3.02. Capital Adequacy............................................................................ 13
Section 3.03. Payments Free of Deductions................................................................. 14
Section 3.04. Payments.................................................................................... 15
Section 3.05. Computations................................................................................ 15
Section 3.06. Payment on Non-Business Days................................................................ 15
Section 3.07. Interest.................................................................................... 15
Section 3.08. Replacement of Borrower..................................................................... 16
Section 3.09. Funding Loss Indemnification................................................................ 17
Section 3.10. Illegality.................................................................................. 17
ARTICLE IV CONDITIONS PRECEDENT.................................................................................17
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01....................................... 17
Section 4.02. Conditions Precedent to Borrowing........................................................... 19
ARTICLE V COVENANTS............................................................................................ 19
Section 5.01. Affirmative Covenants of the Borrower....................................................... 19
Section 5.02. Negative Covenants of the Borrower.......................................................... 20
ARTICLE VI LIQUIDITY EVENTS OF DEFAULT......................................................................... 20
Section 6.01. Liquidity Events of Default................................................................. 20
ARTICLE VII MISCELLANEOUS...................................................................................... 20
Section 7.01. Amendments, Etc............................................................................. 20
Section 7.02. Notices, Etc................................................................................ 20
Section 7.03. No Waiver; Remedies......................................................................... 21
Section 7.04. Further Assurances.......................................................................... 21
Section 7.05. Indemnification; Survival of Certain Provisions............................................. 22
i
Page
----
Section 7.06. Liability of the Liquidity Provider......................................................... 22
Section 7.07. Costs, Expenses and Taxes................................................................... 23
Section 7.08. Binding Effect; Participations.............................................................. 23
Section 7.09. Severability................................................................................ 24
Section 7.10. GOVERNING LAW............................................................................... 24
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity........................ 25
Section 7.12. Execution in Counterparts................................................................... 25
Section 7.13. Entirety.................................................................................... 26
Section 7.14. Headings.................................................................................... 26
Section 7.15. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES............................................ 26
ANNEX I Interest Advance Notice of Borrowing
ANNEX II Non-Extension Advance Notice of Borrowing
ANNEX III Downgrade Advance Notice of Borrowing
ANNEX IV Final Advance Notice of Borrowing
ANNEX V Notice of Termination
ANNEX VI Notice of Replacement Subordination Agent
ii
REVOLVING CREDIT AGREEMENT
This
REVOLVING CREDIT AGREEMENT dated as of October , 2001 (as it may be
amended, supplemented or otherwise modified from time to time in accordance with
the terms hereof, this "Agreement"), between WILMINGTON TRUST COMPANY, a
Delaware corporation, not in its individual capacity but solely as Subordination
Agent under the Intercreditor Agreement (each as defined below), as agent and
trustee for the Class A-2 Trust (as defined below) (the "Borrower"), and
WESTDEUTSCHE LANDESBANK GIROZENTRALE, a German banking institution organized
under the laws of the State of North Rhine-Westphalia, Germany, acting through
its
New York branch ("West LB") (the "Liquidity Provider").
WITNESSETH:
WHEREAS, pursuant to the Class A-2 Trust Agreement (such term
and all other capitalized terms used in these recitals having the meanings set
forth or referred to in Section 1.01), the Class A-2 Trust is issuing the Class
A-2 Certificates; and
WHEREAS, the Borrower, in order to support the timely payment
of a portion of the interest on the Class A-2 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 mutual promises
contained herein, and of other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. (a) Definitions. As used
in this Agreement and unless otherwise expressly indicated, or unless the
context clearly requires otherwise, the following capitalized terms shall have
the following respective meanings for all purposes of this Agreement:
"Additional Cost" has the meaning assigned to such term in
Section 3.01.
"Advance" means an Interest Advance, a Final Advance, a
Provider Advance, an Applied Provider Advance or an Unpaid Advance, as
the case may be.
"Applicable Liquidity Rate" has the meaning assigned to such
term in Section 3.07(g).
2
"Applicable Margin" means with respect to any Unpaid Advance
or Applied Provider Advance, 1.75% per annum.
"Applied Downgrade Advance" has the meaning assigned to such
term in Section 2.06(a).
"Applied Non-Extension Advance" has the meaning assigned to
such term in Section 2.06(a).
"Applied Provider Advance" has the meaning assigned to such
term in Section 2.06(a).
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to (a) the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for each day in the period for
which the Base Rate is to be determined (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of
New York, or if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day
for such transactions received by the Liquidity Provider from three
Federal funds brokers of recognized standing selected by it, plus (b)
one-quarter of one percent (0.25%).
"Base Rate Advance" means an Advance that bears interest at a
rate based upon the Base Rate.
"Borrower" has the meaning assigned to such term in the
recital of parties to this Agreement.
"Borrowing" means the making of Advances requested by delivery
of a Notice of Borrowing.
"Business Day" means any day (x) other than a Saturday or
Sunday or a day on which commercial banks are required or authorized to
close in Dallas, Texas,
New York,
New York or, so long as any Class A-2
Certificate is outstanding, the city and state in which the Class A-2
Trustee, the Borrower or any Loan Trustee maintains its Corporate Trust
Office or receives or disburses funds, and (y) if the applicable
Business Day relates to any Advance or amount bearing interest based on
LIBOR, on which dealings are carried on in the London interbank market.
"Downgrade Advance" means an Advance made pursuant to Section
2.02(c).
"Effective Date" has the meaning specified in Section 4.01.
The delivery of the certificate of the Liquidity Provider contemplated
by Section 4.01(e) shall be conclusive evidence that the Effective Date
has occurred.
3
"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 reasonable fees and disbursements of legal
counsel and costs of investigation), provided that Expenses shall not
include Taxes.
"Expiry Date" means October 28, 2002, initially, or any date
to which the Expiry Date is extended pursuant to Section 2.10.
"Final Advance" means an Advance made pursuant to Section
2.02(d).
"Intercreditor Agreement" means the Intercreditor Agreement
dated the date hereof, among the Trustees, the Liquidity Provider, the
liquidity provider under each Liquidity Facility (other than this
Agreement) and the Subordination Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
"Interest Advance" means an Advance made pursuant to Section
2.02(a).
"Interest Period" means, with respect to any LIBOR Advance,
each of the following periods:
(i) the period beginning on the third Business Day
following either (x) the Liquidity Provider's receipt
of the Notice of Borrowing for such LIBOR Advance or
(y) the withdrawal of funds from the Class A-2 Cash
Collateral Account for the purpose of paying interest
on the Class A-2 Certificates as contemplated by
Section 2.06(a) hereof and, in either case, ending on
the next Regular Distribution Date; and
(ii) each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending
on the next Regular Distribution Date;
provided, however, that if (x) the Final Advance shall have been made,
or (y) other outstanding Advances shall have been converted into the
Final Advance, then the Interest
4
Periods shall be successive periods of one month beginning on the third
Business Day following the Liquidity Provider's receipt of the Notice
of Borrowing for such Final Advance (in the case of clause (x) above)
or the Regular Distribution Date following such conversion (in the case
of clause (y) above).
"Lending Office" means the lending office of the Liquidity
Provider presently located at
New York,
New York, or such other lending
office as the Liquidity Provider from time to time shall notify the
Borrower as its lending office hereunder.
"LIBOR" means, with respect to any Interest Period, (i) the
interest rate per annum 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 Xxxxx
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 the rate specified in clause (i)
is not available, (ii) the average (rounded upwards to the nearest
1/16%), as determined by the Liquidity Provider, 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 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
approximately equal to the principal amount of the applicable LIBOR
Advance as of the first day of such Interest Period. The Liquidity
Provider will, if necessary, request that each of the London Reference
Banks provide a quotation of its rate. If at least two such quotations
from the London Reference Banks are not obtained, the rate will be the
Base Rate.
"LIBOR Advance" means an Advance bearing interest at a rate
based upon LIBOR.
"Liquidity Event of Default" means the occurrence of either
(a) the Acceleration of all of the Equipment Notes or (b) a Southwest
Bankruptcy Event.
"Liquidity Indemnitee" means (i) the Liquidity Provider, (ii)
the directors, officers, employees, servants and agents of the
Liquidity Provider, and (iii) the successors and permitted assigns of
the persons described in clauses (i) and (ii), inclusive.
"Liquidity Provider" has the meaning assigned to such term in
the recital of parties to this Agreement.
"London Reference Banks" means the principal London offices of
Westdeutsche Landesbank Girozentrale, the Mitsubishi Trust and Banking
Corporation and ABN AMRO Bank N.V., or such other bank or banks as may
from time to time be agreed to by Southwest and the Liquidity Provider.
"Maximum Available Commitment" shall mean, subject to the
proviso contained in the third sentence of Section 2.02(a), at any time
of determination, (a) the Maximum Commitment at such time less (b) the
aggregate amount of each Interest Advance
5
outstanding at such time; provided, however, that following a Provider
Advance or a Final Advance, the Maximum Available Commitment shall be
zero.
"Maximum Commitment" means initially $30,972,250 as the same
may be reduced from time to time in accordance with Section 2.04(a).
"Non-Extension Advance" means an Advance made pursuant to
Section 2.02(b).
"Notice of Borrowing" has the meaning specified in Section
2.02(e).
"Notice of Replacement Subordination Agent" has the meaning
specified in Section 3.08.
"Participating Institution" has the meaning assigned to such
term 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.
"Prospectus Supplement" means the Prospectus Supplement dated
October 18, 2001 relating to the Certificates, as such Prospectus
Supplement may be amended or supplemented.
"Provider Advance" means a Downgrade Advance or a
Non-Extension Advance.
"Regulatory Change" has the meaning assigned to such term in
Section 3.01.
"Replenishment Amount" has the meaning assigned to such term
in Section 2.06(b).
"Required Amount" means, for any day, the sum of the aggregate
amount of interest, calculated at the rate per annum equal to the
Stated Interest Rate for the Class A-2 Certificates on the basis of a
360-day year comprised of twelve 30-day months, that would be payable
on the Class A-2 Certificates on each of the three successive
semiannual Regular Distribution Dates immediately following such day
or, if such day is a Regular Distribution Date, on such day and the
succeeding two semiannual Regular Distribution Dates, in each case
calculated on the basis of the Pool Balance of the Class A-2
Certificates on such day and without regard to expected future payments
of principal on the Class A-2 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
A-2 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
6
delivers to the Liquidity Provider a certificate, signed by a
Responsible Officer of the Borrower, certifying that a Replacement
Liquidity Facility has been substituted for this Agreement in full
pursuant to Section 3.6(e) of the Intercreditor Agreement; (iv) the
fifth Business Day following the receipt by the Borrower and Southwest
of a Termination Notice from the Liquidity Provider pursuant to Section
6.01 hereof; and (v) the date on which no Advance is or may (including
by reason of reinstatement as herein provided) become available for a
Borrowing hereunder.
"Termination Notice" means the Notice of Termination
substantially in the form of Annex V to this Agreement.
"Unapplied Downgrade Advance" means any Downgrade Advance
other than an Applied Downgrade Advance.
"Unapplied Non-Extension Advance" means any Non-Extension
Advance other than an Applied Non-Extension Advance.
"Unapplied Provider Advance" means any Provider Advance other
than an Applied Provider Advance.
"Unpaid Advance" has the meaning assigned to such term in
Section 2.05.
(b) Terms Defined in the Intercreditor Agreement. For all
purposes of this Agreement, the following terms shall have the respective
meanings assigned to such terms in the Intercreditor Agreement:
"Acceleration", "Affiliate", "Aircraft", "Certificates", "Class A-1
Certificates", "Class A-2 Cash Collateral Account", "Class A-2
Certificateholders", "Class A-2 Certificates", "Class A-2 Trust",
"Class A-2 Trust Agreement", "Class A-2 Trustee", "Class B
Certificates", "Closing Date", "Controlling Party", "Corporate Trust
Office", "Distribution Date", "Downgraded Facility", "Equipment Notes",
"Fee Letter", "Final Legal Distribution Date", "Indenture", "Interest
Payment Date", "Investment Earnings", "Liquidity Facility", "Liquidity
Obligations", "Indenture Trustee", "Xxxxx'x", "Non-Extended Facility",
"Operative Agreements", "Participation Agreement", "Performing
Equipment Note", "Person", "Pool Balance", "Rating Agency", "Ratings
Confirmation", "Regular Distribution Date", "Replacement Liquidity
Facility", "Responsible Officer", "Scheduled Payment", "Southwest",
"Southwest Bankruptcy Event", "Special Payment", "Standard & Poor's",
"Stated Interest Rate", "Subordination Agent", "Taxes", "Threshold
Rating", "Transfer", "Triggering Event", "Trust Agreement", "Trustee",
"Underwriters", "Underwriting Agreement", and "Written Notice".
(c) Interpretation. For all purposes of this Agreement, except
as otherwise expressly provided or unless the context otherwise requires:
(i) the terms used herein that are defined in this
Article I include the plural as well as the singular;
7
(ii) all references in this Agreement to designated
"Articles," "Sections" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this Agreement;
(iii) the words "herein," "hereof" and "hereunder"
and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision; and
(iv) the term "including" means "including without
limitation".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances. The Liquidity Provider hereby
irrevocably agrees, on the terms and conditions hereinafter set forth, to make
Advances to the Borrower from time to time on any Business Day during the period
from the Effective Date until 12:00 noon (
New York City time) on the Expiry Date
(unless the obligations of the Liquidity Provider shall be earlier terminated in
accordance with the terms of Section 2.04(b)) in an aggregate amount at any time
outstanding not to exceed the Maximum Commitment.
Section 2.02. Making the Advances. (a) Interest Advances shall
be made in one or more Borrowings by delivery to the Liquidity Provider of one
or more written and completed Notices of Borrowing in substantially the form of
Annex I attached hereto, signed by a Responsible Officer of the Borrower, such
Interest Advance in an amount not exceeding the Maximum Available Commitment at
such time and shall be used solely for the payment when due of interest on the
Class A-2 Certificates at the Stated Interest Rate therefor in accordance with
Section 3.6(a) of the Intercreditor Agreement. Each Interest Advance made
hereunder shall automatically reduce the Maximum Available Commitment and the
amount available to be borrowed hereunder by subsequent Advances by the amount
of such Interest Advance (subject to reinstatement as provided in the next
sentence). Upon repayment to the Liquidity Provider in full or in part of the
amount of any Interest Advance made pursuant to this Section 2.02(a), together
with accrued interest thereon (as provided herein), the Maximum Available
Commitment shall be reinstated by the amount of such repaid Interest Advance,
but not to exceed the Maximum Commitment; provided, however, that the Maximum
Available Commitment shall not be so reinstated at any time if (i) a Liquidity
Event of Default shall have occurred and be continuing and (ii) there is a
Performing Note Deficiency.
(b) A Non-Extension Advance shall be made in a single
Borrowing if this Agreement is not extended in accordance with Section 3.6(d) of
the Intercreditor Agreement (unless a Replacement Liquidity Facility to replace
this Agreement shall have been delivered to the Borrower as contemplated by said
Section 3.6(d) within the time period specified in such Section) by delivery to
the Liquidity Provider of a written and completed Notice of Borrowing in
substantially the form of Annex II attached hereto, signed by a Responsible
Officer of the Borrower, in an amount equal to the Maximum Available Commitment
at such time, and shall be
8
used to fund the Class A-2 Cash Collateral Account in accordance with said
Section 3.6(d) and Section 3.6(f) of the Intercreditor Agreement.
(c) A Downgrade Advance shall be made in a single Borrowing
upon a downgrading of the Liquidity Provider's relevant debt rating issued by
either Rating Agency below the applicable Threshold Rating (as provided for in
Section 3.6(c) of the Intercreditor Agreement) unless a Replacement Liquidity
Facility 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 III attached hereto,
signed by a Responsible Officer of the Borrower, in an amount equal to the
Maximum Available Commitment at such time, and shall be used to fund the Class
A-2 Cash Collateral Account in accordance with said Section 3.6(c) and Section
3.6(f) of the Intercreditor Agreement. Upon such downgrading, the Liquidity
Provider shall promptly deliver notice thereof to the Borrower, the Trustee and
Southwest.
(d) A Final Advance shall be made in a single Borrowing upon
the receipt by the Borrower of a Termination Notice from the Liquidity Provider
pursuant to Section 6.01 hereof by delivery to the Liquidity Provider of a
written and completed Notice of Borrowing in substantially the form of Annex IV
attached hereto, signed by a Responsible Officer of the Borrower, in an amount
equal to the Maximum Available Commitment at such time, and shall be used to
fund the Class A-2 Cash Collateral Account (in accordance with Section 3.6(i)
and Section 3.6(f) of the Intercreditor Agreement).
(e) Each Borrowing shall be made on notice in writing (a
"Notice of Borrowing") in substantially the form required by Section 2.02(a),
2.02(b), 2.02(c) or 2.02(d), as the case may be, given by the Borrower to the
Liquidity Provider. If a Notice of Borrowing is delivered by the Borrower in
respect of any Borrowing no later than 1:00 p.m. (
New York City time) on a
Business Day, upon satisfaction of the conditions precedent set forth in Section
4.02 with respect to a requested Borrowing, the Liquidity Provider shall make
available to the Borrower, in accordance with its payment instructions, the
amount of such Borrowing in U.S. dollars and immediately available funds, before
4:00 p.m. (
New York City time) on such Business Day or on such later Business
Day specified in such Notice of Borrowing. If a Notice of Borrowing is delivered
by the Borrower in respect of any Borrowing after 1:00 p.m. (New York City time)
on a Business Day, upon satisfaction of the conditions precedent set forth in
Section 4.02 with respect to a requested Borrowing, the Liquidity Provider shall
make available to the Borrower, in accordance with its payment instructions, the
amount of such Borrowing in U.S. dollars and in immediately available funds,
before 12:00 Noon (New York City time) on the first Business Day next following
the day of receipt of such Notice of Borrowing or on such later Business Day
specified by the Borrower in such Notice of Borrowing. Payments of proceeds of a
Borrowing shall be made by wire transfer of immediately available funds to the
Borrower in accordance with such wire transfer instructions as the Borrower
shall furnish from time to time to the Liquidity Provider for such purpose. Each
Notice of Borrowing shall be irrevocable and binding on the Borrower. Each
Notice of Borrowing shall be effective upon delivery of a copy thereof to the
Liquidity Provider's New York branch at the address specified in Section 7.02.
(f) Upon the making of any Advance requested pursuant to a
Notice of Borrowing, in accordance with the Borrower's payment instructions, the
Liquidity Provider shall
9
be fully discharged of its obligation hereunder with respect to such Notice of
Borrowing, and the Liquidity Provider shall not thereafter be obligated to make
any further Advances hereunder in respect of such Notice of Borrowing to the
Borrower or to any other Person. If the Liquidity Provider makes an Advance
requested pursuant to a Notice of Borrowing before 12:00 noon (New York City
time) on the second Business Day after the date of payment specified in said
Section 2.02(e), the Liquidity Provider shall have fully discharged its
obligations hereunder with respect to such Advance and an event of default shall
not have occurred hereunder. Following the making of any Advance pursuant to
Section 2.02(b), 2.02(c) or 2.02(d) hereof to fund the Class A-2 Cash Collateral
Account, the Liquidity Provider shall have no interest in or rights to the Class
A-2 Cash Collateral Account, such Advance or any other amounts from time to time
on deposit in the Class A-2 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 3.6(f) of the
Intercreditor Agreement and provided, further, that the foregoing shall not
affect or impair the rights of the Liquidity Provider to provide written
instructions with respect to the investment and reinvestment of the Cash
Collateral Accounts to the extent provided in Section 2.2(b) of the
Intercreditor Agreement. By paying to the Borrower proceeds of Advances
requested by the Borrower in accordance with the provisions of this Agreement,
the 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. Reductions or Termination of the Maximum
Commitment.
(a) Automatic Reduction. Promptly following each date on which
the Required Amount is reduced as a result of a reduction in the Pool Balance of
the Class A-2 Certificates or otherwise, the Maximum Commitment shall
automatically be reduced to an amount equal to such reduced Required Amount (as
calculated by the Borrower). The Borrower shall give notice of any such
automatic reduction of the Maximum Commitment to the Liquidity Provider within
two Business Days thereof. The failure by the Borrower to furnish any such
notice shall not affect such automatic reduction of the Maximum Commitment.
(b) Termination. Upon the making of any Provider Advance or
Final Advance hereunder or the occurrence of the Termination Date, the
obligation of the Liquidity Provider to make further Advances hereunder shall
automatically and irrevocably terminate, and the Borrower shall not be entitled
to request any further Borrowing hereunder.
Section 2.05. Repayments of Interest Advances or the Final
Advance. Subject to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby
agrees, without notice of an Advance or demand for repayment from the Liquidity
Provider (which notice and demand are hereby waived by the Borrower), to pay, or
to cause to be paid, to the Liquidity Provider on each date on which the
Liquidity Provider shall make an Interest Advance or the Final Advance, an
amount equal to (a) the amount of such Advance (any such Advance, until repaid,
is referred to herein as an "Unpaid Advance"), plus (b) interest on the amount
of each such Unpaid Advance as provided in Section 3.07 hereof; provided,
however, that if (i) the Liquidity Provider shall make a Provider
10
Advance at any time after making one or more Interest Advances which shall not
have been repaid in accordance with this Section 2.05 or (ii) this Liquidity
Facility shall become a Downgraded Facility or Non-Extended Facility at any time
when unreimbursed Interest Advances have reduced the Maximum Available
Commitment to zero, then such Interest Advances shall cease to constitute Unpaid
Advances and shall be deemed to have been changed into an Applied Downgrade
Advance or an Applied Non-Extension Advance, as the case may be, for all
purposes of this Agreement (including for the purpose of determining when such
Interest Advance is required to be repaid to the Liquidity Provider in
accordance with Section 2.06 and for the purposes of Section 2.06(b)). The
Borrower and the Liquidity Provider agree that the repayment in full of each
Interest Advance and Final Advance on the date such Advance is made is intended
to be a contemporaneous exchange for new value given to the Borrower by the
Liquidity Provider.
Section 2.06. Repayments of Provider Advances. (a) Amounts
advanced hereunder in respect of a Provider Advance shall be deposited in the
Class A-2 Cash Collateral Account, invested and withdrawn from the Class A-2
Cash Collateral Account as set forth in Sections 3.6(c), (d) and (f) of the
Intercreditor Agreement. The Borrower agrees to pay to the Liquidity Provider,
on each Regular Distribution Date, commencing on the first Regular Distribution
Date after the making of a Provider Advance, interest on the principal amount of
any such Provider Advance as provided in Section 3.07; provided, however, that
amounts in respect of a Provider Advance withdrawn from the Class A-2 Cash
Collateral Account for the purpose of paying interest on the Class A-2
Certificates in accordance with Section 3.6(f) of the Intercreditor Agreement
(the amount of any such withdrawal being (y) in the case of a Downgrade Advance,
an "Applied Downgrade Advance" and (z) in the case of a Non-Extension Advance,
an "Applied Non-Extension Advance" and, together with an Applied Downgrade
Advance, an "Applied Provider Advance") shall thereafter (subject to Section
2.06(b)) be treated as an Interest Advance under this Agreement for purposes of
determining the Applicable Liquidity Rate for interest payable thereon; and
provided further, that if, following the making of a Provider Advance, the
Liquidity Provider delivers a Termination Notice to the Borrower pursuant to
Section 6.01 hereof, such Provider Advance shall thereafter be treated as a
Final Advance under this Agreement for purposes of determining the Applicable
Liquidity Rate for interest payable thereon and the obligation for repayment
thereof. Subject to Sections 2.07 and 2.09 hereof, immediately upon the
withdrawal of any amounts from the Class A-2 Cash Collateral Account on account
of a reduction in the Required Amount, the Borrower shall repay to the Liquidity
Provider a portion of the Provider Advances in a principal amount equal to the
amount of such reduction, plus interest on the principal amount prepaid as
provided in Section 3.07 hereof.
(b) At any time when an Applied Provider Advance (or any
portion thereof) is outstanding, upon the deposit in the Class A-2 Cash
Collateral Account of any amount pursuant to clause "third" of Section 2.4(b) of
the Intercreditor Agreement, clause "third" of Section 3.2 of the Intercreditor
Agreement or clause "fourth" of Section 3.3 of the Intercreditor Agreement (any
such amount being a "Replenishment Amount") for the purpose of replenishing or
increasing the balance thereof up to the Required Amount at such time, (i) the
aggregate outstanding principal amount of all Applied Provider Advances (and of
Provider Advances treated as an Interest Advance for purposes of determining the
Applicable Liquidity Rate for interest payable thereon) shall be automatically
reduced by the amount of such Replenishment Amount and (ii) the
11
aggregate principal amount of all outstanding Unapplied Provider Advances shall
be automatically increased by the amount of such Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity Facility in
replacement of this Agreement in accordance with Section 3.6(e) of the
Intercreditor Agreement, amounts remaining on deposit in the Class A-2 Cash
Collateral Account after giving effect to any Applied Provider Advance on the
date of such replacement shall be reimbursed to the Liquidity Provider, but only
to the extent such amounts are necessary to repay in full to the Liquidity
Provider all amounts owing to it hereunder.
Section 2.07. Payments to the Liquidity Provider Under the
Intercreditor Agreement. In order to provide for payment or repayment to the
Liquidity Provider of any amounts hereunder, the Intercreditor Agreement
provides that amounts available and referred to in Articles II and III of the
Intercreditor Agreement, to the extent payable to the Liquidity Provider
pursuant to the terms of the Intercreditor Agreement (including Section 3.6(f)
of the Intercreditor Agreement), shall be paid to the Liquidity Provider in
accordance with the terms thereof. Amounts so paid to the Liquidity Provider
shall be applied by the Liquidity Provider to Liquidity Obligations then due and
payable in the order of priority required by the applicable provisions of
Articles II and III of the Intercreditor Agreement or, if not provided for in
the Intercreditor Agreement, then in such manner as the Liquidity Provider shall
deem appropriate.
Section 2.08. Book Entries. The Liquidity Provider shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower resulting from Advances made from time to time
and the amounts of principal and interest payable hereunder and paid from time
to time in respect thereof; provided, however, that the failure by the Liquidity
Provider to maintain such account or accounts shall not affect the obligations
of the Borrower in respect of Advances.
Section 2.09. Payments from Available Funds Only. All payments
to be made by the Borrower under this Agreement shall be made only from the
amounts that constitute Scheduled Payments, Special Payments or payments under
Section 8.1 of the Participation Agreements with respect to each Aircraft and
Section 2.02 of each Indenture and only to the extent that the Borrower shall
have sufficient income or proceeds therefrom to enable the Borrower to make
payments in accordance with the terms hereof after giving effect to the priority
of payments provisions set forth in the Intercreditor Agreement. The Liquidity
Provider agrees that it 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 A-2 Cash Collateral Account shall be
available to the Borrower to make payments under this Agreement only to the
extent and for the purposes expressly contemplated in Section 3.6(f) of the
Intercreditor Agreement.
Section 2.10. Extension of the Expiry Date; Non-Extension
Advance. No earlier than the 60th day and no later than the 40th day prior to
the then effective Expiry Date (unless such Expiry Date is on or after the date
that is 15 days after the Final Legal Distribution Date for the Class A-2
Certificates), the Borrower shall request that the Liquidity Provider extend the
12
Expiry Date to the earlier of (i) the date that is 15 days after the Final Legal
Distribution Date for the Class A-2 Certificates and (ii) the date that is the
day immediately preceding the 364th day occurring after the last day of the
Consent Period (as hereinafter defined). Whether or not the Borrower has made
such request, the Liquidity Provider shall advise the Borrower, no earlier than
the 40th day (or, if earlier, the date of the Liquidity Provider's receipt of
such request, if any, from the Borrower) and no later than the 25th day prior to
the then effective Expiry Date (such period the "Consent Period"), whether, in
its sole discretion, it agrees to so extend the Expiry Date. If the Liquidity
Provider advises the Borrower on or before the date on which the Consent Period
ends that such Expiry Date shall not be so extended, or fails to irrevocably and
unconditionally advise the Borrower on or before the date on which the Consent
Period ends that such Expiry Date shall be so extended (and, in each case, if
the Liquidity Provider shall not have been replaced in accordance with Section
3.6(e) of the Intercreditor Agreement), the Borrower shall be entitled on and
after the date on which the Consent Period ends (but prior to the then effective
Expiry Date) to request a Non-Extension Advance in accordance with Section
2.02(b) and Section 3.6(d) of the Intercreditor Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs. The Borrower shall pay to the
Liquidity Provider from time to time such amounts as may be necessary to
compensate the Liquidity Provider for any costs incurred by the Liquidity
Provider which are attributable to its making or maintaining any 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 or such obligation
(other than Taxes); or (2) imposes or modifies any reserve, special deposit,
compulsory loan or similar requirements relating to any extensions of credit or
other assets of, or any deposits with or other liabilities of, the Liquidity
Provider (including any such Advances or such obligation or any deposits
referred to in the definition of LIBOR or related definitions). The Liquidity
Provider agrees to use reasonable efforts (consistent with its internal policy
and 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 will entitle the Liquidity
Provider to compensation pursuant to this Section 3.01 as promptly as
practicable after it obtains knowledge thereof and determines to request such
compensation, which notice shall describe in reasonable detail the calculation
of the
13
amounts owed under this Section. Determinations by the Liquidity Provider for
purposes of this Section 3.01 of the effect of any Regulatory Change on its
costs of making or maintaining Advances or on amounts receivable by it in
respect of Advances, and of the additional amounts required to compensate the
Liquidity Provider in respect of any Additional Costs, shall be prima facie
evidence of the amount owed under this Section.
Notwithstanding the preceding two paragraphs, (i) the
Liquidity Provider and the Borrower agree that any permitted assignee or
participant of the initial Liquidity Provider that is not a bank shall not be
entitled to the benefits of the preceding two paragraphs (but without limiting
the provisions of Section 7.08 hereof), and (ii) in no event shall the
abolition, alteration or modification of the Gewahrtragerhaftung and the
Anstaltslast in accordance with the European Commissions' Statement of July 17,
2001, as amended, altered or modified from time to time, in respect of any
liabilities of the Liquidity Provider constitute a Regulatory Change.
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. 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 Liquidity Provider 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.
Notwithstanding the preceding two paragraphs, (i) the
Liquidity Provider and the Borrower agree that any permitted assignee or
participant of the initial Liquidity Provider that is not a bank shall not be
entitled to the benefits of the preceding two paragraphs (but without limiting
the provisions of Section 7.08 hereof), and (ii) in no event shall the
abolition, alteration or modification of the Gewahrtragerhaftung and the
Anstaltslast in accordance with the European Commission's Statement of July 17,
2001, as amended, altered or modified from time to time, in respect of any
liabilities of the Liquidity Provider give rise to any claim under this Section
3.02.
14
Section 3.03. Payments Free of Deductions. (a) All payments
made by the Borrower under this Agreement shall be made free and clear of, and
without reduction for or on account of, any 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 (i) 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 (ii) below) and make such reports
or returns in connection therewith at the time or times and in the manner
prescribed by applicable law, and (ii) pay to the 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 (as determined by the Liquidity Provider) 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 and required by applicable law and as may be legally
delivered by the Liquidity Provider to establish that payments hereunder are
exempt from (or entitled to a reduced rate of) withholding Tax.
(b) All payments (including Advances) made by the Liquidity
Provider under this Agreement shall be made free and clear of, and without
reduction for or on account of, any Taxes. If any Taxes are required to be
withheld or deducted from any amounts payable to the Borrower under this
Agreement, the Liquidity Provider shall (i) within the time prescribed therefor
by applicable law pay to the appropriate governmental or taxing authority the
full amount of any such Taxes (and any additional Taxes in respect of the
additional amounts payable under clause (ii) hereof) and make such reports or
returns in connection therewith at the time or times and in the manner
prescribed by applicable law, and (ii) pay to the Borrower an additional amount
which (after deduction of all such Taxes) shall be sufficient to yield to the
Borrower the full amount which would have been received by it had no such
withholding or deduction been made. Within 30 days after the date of each
payment hereunder, the Liquidity Provider shall furnish to the Borrower the
original or a certified copy of (or other documentary evidence of) the payment
of the Taxes applicable to such payment.
If any exemption from, or reduction in the rate of, any Taxes
is reasonably available to the Borrower to establish that payments under this
Agreement are exempt from (or entitled to a reduced rate of) tax, the Borrower
shall deliver to the Liquidity Provider such form or forms and such other
evidence of the eligibility of the Borrower for such exemption or reduction as
the Liquidity Provider may reasonably identify to the Borrower as being required
as a condition to exemption from, or reduction in the rate of, any Taxes.
15
Section 3.04. Payments. The Borrower shall make or cause to be
made each payment to the Liquidity Provider under this Agreement so as to cause
the same to be received by the Liquidity Provider not later than 1:00 P.M. (New
York City time) on the day when due. The Borrower shall make all such payments
in lawful money of the United States of America, to the Liquidity Provider in
immediately available funds, by wire transfer to The Chase Manhattan Bank, Xxx
Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, ABA No. 000-000-000, for
account of Westdeutsche Landesbank Girozentrale, New York branch, Account No.
000-0-000000, Reference: Southwest Airlines Liquidity Facility 2001-1A-2.
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 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 succeeding Business Day and
no additional interest shall be due as a result (and if so made, shall be deemed
to have been made when due). If any payment in respect of interest on an Advance
is so deferred to the next succeeding Business Day, such deferral shall not
delay the commencement of the next Interest Period for such Advance (if such
Advance is a LIBOR Advance) or reduce the number of days for which interest
shall be payable on such Advance on the next interest payment date for such
Advance.
Section 3.07. Interest. (a) Subject to Section 2.09, the
Borrower shall pay, or shall cause to be paid, without duplication, interest on
(i) the unpaid principal amount of each Advance from and including the date of
such Advance (or, in the case of an Applied Provider Advance, from and including
the date on which the amount thereof was withdrawn from the Class A-2 Cash
Collateral Account to pay interest on the Class A-2 Certificates) to but
excluding the date such principal amount shall be paid in full (or, in the case
of an Applied Provider Advance, the date on which the Class A-2 Cash Collateral
Account is fully replenished in respect of such Advance) and (ii) any other
amount due hereunder (whether fees, commissions, expenses or other amounts or,
to the extent permitted by applicable law, installments of interest on Advances
or any such other amount) which is not paid when due (whether at stated
maturity, by acceleration or otherwise) from and including the due date thereof
to but excluding the date such amount is paid in full, in each such case, at a
fluctuating interest rate per annum for each day equal to the Applicable
Liquidity Rate (as defined below) for such Advance or such other amount as in
effect for such day, but in no event at a rate per annum greater than the
maximum rate permitted by applicable law; provided, however, that, if at any
time the otherwise applicable interest rate as set forth in this Section 3.07
shall exceed the maximum rate 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 amount under this Section
3.07 other than to the extent the Borrower shall have funds available therefor.
16
(b) Except as provided in Section 3.07(e) below, each Advance
shall be either a Base Rate Advance or a LIBOR Advance as provided in this
Section or Section 3.10. Each such Advance shall be a Base Rate Advance for the
period from the date of its borrowing to (but excluding) the third Business Day
following the Liquidity Provider's receipt of the Notice of Borrowing for such
Advance. Thereafter, such Advance shall be a LIBOR Advance; provided, however,
that the Borrower (at the direction of the Controlling Party, so long as the
Liquidity Provider is not the Controlling Party) may (x) convert the Final
Advance into a Base Rate Advance on the last day of an Interest Period for such
Advance by giving the Liquidity Provider no less than four Business Days' prior
Written Notice of such election or (y) elect to maintain the Final Advance as a
Base Rate Advance by not requesting a conversion of the Final Advance to a LIBOR
Advance under Clause (5) of the applicable Notice of Borrowing (or, if such
Final Advance is deemed to have been made, without delivery of a Notice of
Borrowing pursuant to Section 2.06, by requesting, prior to 11:00 A.M. (New York
time) on the first Business Day immediately following the Borrower's receipt of
the applicable Termination Notice, that such Final Advance not be converted from
a Base Rate Advance to a LIBOR Advance).
(c) Each LIBOR Advance shall bear interest during each
Interest Period at a rate per annum equal to 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 a rate per
annum equal to the Base Rate plus the Applicable Margin for such Base Rate
Advance, payable in arrears on each Regular Distribution Date and, in the event
of the payment of principal of such Base Rate Advance on a day other than a
Regular Distribution Date, on the date of such payment (to the extent of
interest accrued on the amount of principal repaid).
(e) Each Unapplied Provider Advance shall bear interest in an
amount equal to the Investment Earnings on amounts on deposit in the Class A-2
Cash Collateral Account, 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 but excluding Advances) shall bear
interest at a rate per annum equal to the Base Rate plus 2.00% per annum until
paid.
(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 Subordination Agent
in substantially the form of Annex VI attached hereto (a "Notice of
17
Replacement Subordination Agent") delivered to the Liquidity Provider by the
then Borrower, the successor Borrower designated therein shall be substituted
for as the Borrower for all purposes hereunder.
Section 3.09. Funding Loss Indemnification. The Borrower shall
pay to the Liquidity Provider, upon the request of the Liquidity Provider, such
amount or amounts as shall be sufficient (in the reasonable opinion of the
Liquidity Provider) to compensate it for any loss, cost, or expense incurred 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 on a date other than the
last day of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance on
the date for borrowing specified in the relevant notice under Section
2.02.
Section 3.10. Illegality. Notwithstanding any other provision
in this Agreement, if any change in any applicable law, rule or regulation, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Liquidity Provider (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for the Liquidity Provider (or its Lending Office) to maintain or
fund its LIBOR Advances, then upon notice to the Borrower by the Liquidity
Provider, the outstanding principal amount of the LIBOR Advances shall be
converted to Base Rate Advances (a) immediately upon demand of the Liquidity
Provider, if such change or compliance with such request, in the judgment of the
Liquidity Provider, requires immediate repayment; or (b) at the expiration of
the last Interest Period to expire before the effective date of any such change
or request.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section
2.01. Section 2.01 of this Agreement shall become effective on and as of the
first date (the "Effective Date") on which the following conditions precedent
have been satisfied or waived:
(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 (other than the
Liquidity Provider);
18
(iii) Fully executed copies of each of the Operative
Agreements (other than this Agreement and the Intercreditor
Agreement);
(iv) A copy of the Prospectus Supplement and specimen
copies of the Class A-2 Certificates;
(v) An executed copy of each document, instrument,
certificate and opinion delivered pursuant to the Class A-2
Trust Agreement, the Intercreditor Agreement and the other
Operative Agreements (in the case of each such opinion, other
than the opinion of counsel for the Underwriters, either
addressed to the Liquidity Provider or accompanied by a letter
from the counsel rendering such opinion to the effect that the
Liquidity Provider is entitled to rely on such opinion as of
its date as if it were addressed to the Liquidity Provider);
(vi) Evidence that there shall have been made and
shall be in full force and effect, all filings, recordings
and/or registrations, and there shall have been given or taken
any notice or other similar action as may be reasonably
necessary or, to the extent reasonably requested by the
Liquidity Provider, reasonably advisable, in order to
establish, perfect, protect and preserve the right, title and
interest, remedies, powers, privileges, liens and security
interests of, or for the benefit of, the Trustee and the
Liquidity Provider created by the Operative Agreements; and
(vii) Such other documents, instruments, opinions and
approvals pertaining to the transactions contemplated hereby
or by the other Operative Agreements as the Liquidity Provider
shall have reasonably requested.
(b) The following statements shall be true on and as of the
Effective Date: (i) the representations and warranties in 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 (iii) the statements of financial
position of Southwest as at December 21, 2000 and September 30, 2001
and the related statements of earnings and cash flow of Southwest for
the year and nine months then ended, fairly present the financial
condition of Southwest as at such dates and the results of operations
and cash flow of Southwest for the periods ended on such dates, in
accordance with generally accepted accounting principles consistently
applied (except as may be stated in the notes thereto), and subject in
the case of the September 30, 2001 statements, to normal year end and
audit adjustments, and since September 30, 2001, there has been no
material adverse change in such condition or operations, except for
such matters timely disclosed in press releases issued by Southwest or
in public filings, effective as of the date hereof, with the Securities
and Exchange Commission under the Securities Exchange Act of 1934, as
amended, by Southwest.
19
(c) The Liquidity Provider shall have received payment in full
of all fees and other sums required to be paid to or for the account of
the Liquidity Provider on or prior to the Effective Date.
(d) All conditions precedent to the issuance of the
Certificates under the Trust Agreements shall have been satisfied or
waived, all conditions precedent to the effectiveness of the other
Liquidity Facilities shall have been satisfied or waived, and all
conditions precedent to the purchase of the Certificates by the
Underwriters under the Underwriting Agreement shall have been satisfied
(unless any of such conditions precedent shall have been waived by the
Underwriters).
(e) The Borrower shall have received a certificate, dated the
date hereof, signed by a duly authorized representative of the
Liquidity Provider, certifying that all conditions precedent to the
effectiveness of Section 2.01 have been satisfied or waived.
Section 4.02. Conditions Precedent to Borrowing. The
obligation of the Liquidity Provider to make an Advance on the occasion of each
Borrowing shall be subject to the conditions precedent that the Effective Date
shall have occurred and, prior to the date of such Borrowing, the Borrower shall
have delivered a Notice of Borrowing which conforms to the terms and conditions
of this Agreement and has been completed as may be required by the relevant form
of the Notice of Borrowing for the type of Advances requested.
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower. So long
as any Advance shall remain unpaid or the Liquidity Provider shall have any
Maximum Commitment hereunder or the Borrower shall have any obligation to pay
any amount to the Liquidity Provider hereunder, the Borrower shall, unless the
Liquidity Provider shall otherwise consent in writing:
(a) Performance of This and Other Agreements. Punctually pay
or cause to be paid all amounts payable by it under this Agreement and
the other Operative Agreements and observe and perform in all material
respects the conditions, covenants and requirements applicable to it
contained in this Agreement and the other Operative Agreements.
(b) Reporting Requirements. Furnish to the Liquidity Provider
with reasonable promptness, such other information and data with
respect to the transactions contemplated by the Operative Agreements as
from time to time may be reasonably requested by the Liquidity
Provider; and permit the Liquidity Provider, upon reasonable notice, to
inspect the Borrower's books and records with respect to such
transactions and to meet with officers and employees of the Borrower to
discuss such transactions.
20
(c) Certain Operative Agreements. Furnish to the Liquidity
Provider with reasonable promptness, such Operative Agreements entered
into after the date hereof as from time to time may be reasonably
requested by the Liquidity Provider.
Section 5.02. Negative Covenants of the Borrower. So long as
any Advance shall remain unpaid or the Liquidity Provider shall have any Maximum
Commitment hereunder or the Borrower shall have any obligation to pay any amount
to the Liquidity Provider hereunder, the Borrower shall not appoint or permit or
suffer to be appointed any successor Borrower without the prior written consent
of the Liquidity Provider, which consent shall not be unreasonably withheld or
delayed.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default. If (a) any
Liquidity Event of Default has occurred and is continuing and (b) there is a
Performing Note Deficiency, the Liquidity Provider may, in its discretion,
deliver to the Borrower a Termination Notice, the effect of which shall be to
cause (i) the obligation of the Liquidity Provider to make Advances hereunder to
expire on the fifth Business Day after the date on which such Termination Notice
is received by the Borrower, (ii) the Borrower to promptly request, and the
Liquidity Provider to promptly make, a Final Advance in accordance with Section
2.02(d) hereof and Section 3.6(i) of the Intercreditor Agreement, (iii) all
other outstanding Advances to be automatically converted into Final Advances for
purposes of determining the Applicable Liquidity Rate for interest payable
thereon, and (iv) subject to Sections 2.07 and 2.09 hereof, all Advances
(including any Provider Advance and Applied Provider Advance), any accrued
interest thereon and any other amounts outstanding hereunder to become
immediately due and payable to the Liquidity Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Liquidity Provider, and, in the case of an amendment, 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: WILMINGTON TRUST COMPANY
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
21
Liquidity Provider: WESTDEUTSCHE LANDESBANK
GIROZENTRALE
Transportation Finance
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to: WESTDEUTSCHE LANDESBANK
GIROZENTRALE
Loan Administration
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or, as to each of the foregoing, at such other address as shall be designated by
such Person in a Written Notice to the others. All such notices and
communications shall be effective (i) if given by telecopier, when transmitted
to the telecopier number specified above 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 hereof shall not be effective until received by the Liquidity
Provider, subject to the last sentence of Section 2.02(e). 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.
22
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 8.1 of any 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
(including the expenses set forth in Section 2.02 of each Indenture) of any kind
or nature whatsoever (other than any Expenses of the nature described in Section
3.01, 3.02 or 7.07 hereof or in the Fee Letter (regardless of whether
indemnified against pursuant to said Sections or in such Fee Letter)) that may
be imposed, incurred by or asserted against any Liquidity Indemnitee, in any way
relating to, resulting from, or arising out of or in connection with any action,
suit or proceeding by any third party against such Liquidity Indemnitee and
relating to this Agreement, the Fee Letter, the Intercreditor Agreement or any
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 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 indemnities contained in
Section 8.1 of any Participation Agreement, and the provisions of Sections 3.01,
3.02, 3.03, 3.09, 7.05 and 7.07 hereof, shall survive the termination of this
Agreement.
Section 7.06. Liability of the Liquidity Provider. (a) Neither
the Liquidity Provider nor any of its officers, employees, directors or
affiliates shall be liable or responsible for: (i) the use which may be made of
the Advances or any acts or omissions of the Borrower or any beneficiary or
transferee in connection therewith; (ii) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient, fraudulent or
forged; or (iii) the making of Advances by the Liquidity Provider against
delivery of a Notice of Borrowing and other documents which do not comply with
the terms hereof; provided, however, that the Borrower shall have a claim
against the Liquidity Provider, and the Liquidity Provider shall be liable to
the Borrower, to the extent of any damages suffered by the Borrower which were
the result of (A) the Liquidity Provider's willful misconduct or negligence in
determining whether documents presented hereunder comply with the terms hereof,
or (B) any breach by the Liquidity Provider of any of the terms of this
Agreement, including, but not limited to, the Liquidity Provider's failure to
make lawful payment hereunder after the delivery to it by the Borrower of a
Notice of Borrowing complying with the terms and conditions hereof.
(b) Neither the Liquidity Provider nor any of its officers,
employees, directors or Affiliates shall be liable or responsible in any respect
for (i) any error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in connection with this
Agreement or any Notice of Borrowing delivered hereunder, or (ii) any action,
inaction or omission which may be taken by it in good faith, absent willful
misconduct or negligence (in which event the extent of the Liquidity Provider's
potential liability to the Borrower shall be limited as set forth in the
immediately preceding paragraph), in connection with this Agreement or any
Notice of Borrowing.
23
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 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
(whether or not the same shall become effective) or (iii) any action or
proceeding relating to any order, injunction, or other process or decree
restraining or seeking to restrain the Liquidity Provider from paying any amount
under this Agreement, the Intercreditor Agreement or any other Operative
Agreement or otherwise affecting the application of funds in the Class A-2 Cash
Collateral Account. In addition, the Borrower shall pay any and all recording,
stamp and other similar taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing and recording of this Agreement,
any other Operative Agreement and such other documents, and agrees to save the
Liquidity Provider harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes
or fees.
Section 7.08. Binding Effect; Participations. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrower and the
Liquidity Provider and their respective successors and assigns, except that
neither the Liquidity Provider (except as otherwise provided in this Section
7.08) nor the Borrower (except as contemplated by Section 3.08) shall have the
right to assign its rights or obligations hereunder or any interest herein
without the prior written consent of the other party, subject to the
requirements of Section 7.08(b). The Liquidity Provider may grant participations
herein or in any of its rights hereunder and under the other Operative
Agreements to such Persons (other than Southwest or any of its Affiliates) 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 that are banks (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 other than as a result of a change in law following the date of any
participation).
24
(b) If, pursuant to subsection 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 W-8ECI or Form W-8BEN, 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 W-8ECI or Form
W-8BEN, as appropriate, (A) on or before the date that any such form expires or
becomes obsolete or (B) after the occurrence of any event requiring a change in
the most recent form previously delivered by it and prior to the immediately
following due date of any payment by the Borrower hereunder, certifying in the
case of a Form W-8ECI or Form W-8BEN 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 will 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 LAW OF THE STATE OF NEW YORK.
25
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;
(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 of mail), postage
prepaid, to each party hereto at its address set forth in Section 7.02
hereof, or at such other address of which the Liquidity Provider shall
have been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE
TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS
BEING ESTABLISHED, including 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.
26
Section 7.13. Entirety. This Agreement, the Intercreditor
Agreement and the other Operative Agreements to which the Liquidity Provider is
a party constitute the entire agreement of the parties hereto with respect to
the subject matter hereof and supersedes all prior understandings and agreements
of such parties.
Section 7.14. Headings. Section headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
Section 7.15. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE
ADVANCES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF
THE LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO
DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL
BE UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE
STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND SHALL CONSTITUTE THE
OBLIGATIONS OF WESTDEUTSCHE LANDESBANK GIROZENTRALE.
27
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.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent,
as agent and trustee for the
Class A-2 Trust, as Borrower
By:
---------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, acting through its
New York Branch,
as Liquidity Provider
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
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 WESTDEUTSCHE
LANDESBANK GIROZENTRALE, acting through its New York branch (the "Liquidity
Provider"), with reference to the
Revolving Credit Agreement (2001-1A-2) dated
as of October 30, 2001, 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 A-2 Certificates which was
payable on ____________, ____ in accordance with the terms and
provisions of the Class A-2 Trust Agreement and the Class A-2
Certificates, which Advance is requested to be made on ____________,
____. The Interest Advance should be transferred to account
____________.
(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-2 Certificates on
such Distribution Date, (ii) does not include any amount with respect
to the payment of principal of, or premium on, the Class A-2
Certificates, or principal of, or interest or premium on, the Class A-1
Certificates or the Class B Certificates, (iii) was computed in
accordance with the provisions of the Class A-2 Certificates, the Class
A-2 Trust Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), (iv) does not exceed the
Maximum Available Commitment on the date hereof 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 3.6(b) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, the making of the Interest Advance as requested by this
Notice of Borrowing shall automatically reduce, subject to reinstatement in
accordance with the terms of the Liquidity Agreement, the Maximum Available
Commitment by an amount equal to the amount of the Interest Advance requested to
be made hereby as set forth in clause (i) of paragraph (3) of this Notice of
Borrowing and such reduction shall automatically result in corresponding
reductions in the amounts available to be borrowed pursuant to a subsequent
Advance.
I-1
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent,
as Borrower
By:
---------------------------------
Name:
Title:
I-2
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest Advance Notice of
Borrowing]
I-3
Annex II to
Revolving Credit Agreement
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned subordination agent (the "Borrower"), hereby certifies to
WESTDEUTSCHE LANDESBANK GIROZENTRALE, acting through its New York branch (the
"Liquidity Provider"), with reference to the
Revolving Credit Agreement
(2001-1A-2) dated as of October 30, 2001, between the Borrower and the Liquidity
Provider (the "Liquidity Agreement"; the terms defined therein and not otherwise
defined herein being used herein as therein defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for
the making of the Non-Extension Advance by the Liquidity Provider to be
used for the funding of the Class A-2 Cash Collateral Account in
accordance with Section 3.6(d) of the Intercreditor Agreement, which
Advance is requested to be made on __________, ____. The Non-Extension
Advance should be transferred to _______.
(3) The amount of the Non-Extension Advance requested hereby
(i) is $_______________.__, which equals the Maximum Available
Commitment on the date hereof and is to be applied in respect of the
funding of the Class A-2 Cash Collateral Account in accordance with
Section 3.6(d) of the Intercreditor Agreement, (ii) does not include
any amount with respect to the payment of the principal of, or premium
on, the Class A-2 Certificates, or principal of, or interest or premium
on, the Class A-1 Certificates or the Class B Certificates, (iii) was
computed in accordance with the provisions of the Class A-2
Certificates, the Class A-2 Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule
I), and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower shall deposit such amount in the
Class A-2 Cash Collateral Account and apply the same in accordance with
the terms of Section 3.6(d) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Non-Extension Advance as
requested by this Notice of Borrowing shall automatically and
irrevocably terminate the obligation of the Liquidity Provider to make
further Advances under the Liquidity Agreement; and (B) following the
making by the Liquidity Provider of the Non-Extension Advance requested
by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
II-1
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent,
as Borrower
By:
---------------------------------
Name:
Title:
II-2
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Non-Extension Advance Notice of
Borrowing]
II-3
Annex III to
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned subordination agent (the "Borrower"), hereby certifies to
WESTDEUTSCHE LANDESBANK GIROZENTRALE, acting through its New York branch (the
"Liquidity Provider"), with reference to the
Revolving Credit Agreement
(2001-1A-2) dated as of October 30, 2001, 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 A-2 Cash Collateral Account in
accordance with Section 3.6(c) of the Intercreditor Agreement by reason
of the downgrading of the short-term unsecured debt rating of the
Liquidity Provider issued by either Rating Agency below the Threshold
Rating, which Advance is requested to be made on __________, ____. The
Downgrade Advance should be transferred to _______.
(3) The amount of the Downgrade Advance requested hereby (i)
is $_______________.__, which equals the Maximum Available Commitment
on the date hereof and is to be applied in respect of the funding of
the Class A-2 Cash Collateral Account in accordance with Section 3.6(c)
of the Intercreditor Agreement, (ii) does not include any amount with
respect to the payment of the principal of, or premium on, the Class
A-2 Certificates, or principal of, or interest or premium on, the Class
A-1 Certificates or the Class B Certificates, (iii) was computed in
accordance with the provisions of the Class A-2 Certificates, the Class
A-2 Trust Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), and (iv) has not been
and is not the subject of a prior or contemporaneous Notice of
Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower shall deposit such amount in the
Class A-2 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.
III-1
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Downgrade Advance as requested by
this Notice of Borrowing shall automatically and irrevocably terminate the
obligation of the Liquidity Provider to make further Advances under 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 _________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent,
as Borrower
By:
---------------------------------
Name:
Title:
III-2
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Downgrade Advance Notice of
Borrowing]
III-3
Annex IV to
Revolving Credit Agreement
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned borrower (the "Borrower"), hereby certifies to WESTDEUTSCHE
LANDESBANK GIROZENTRALE, acting through its New York branch (the "Liquidity
Provider"), with reference to the Revolving Credit Agreement (2001-1A-2) dated
as of October , 2001, 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 A-2 Cash Collateral Account in accordance
with Section 3.6(i) of the Intercreditor Agreement by reason of the
receipt by the Borrower of a Termination Notice from the Liquidity
Provider with respect to the Liquidity Agreement, which Advance is
requested to be made on ____________, ____.
(3) The amount of the Final Advance requested hereby (i) is
$_________________.__, which equals the Maximum Available Commitment on
the date hereof and is to be applied in respect of the funding of the
Class A-2 Cash Collateral Account in accordance with Section 3.6(i) of
the Intercreditor Agreement, (ii) does not include any amount with
respect to the payment of principal of, or premium on, the Class A-2
Certificates, or principal of, or interest or premium on, the Class A-1
Certificates or the Class B Certificates, (iii) was computed in
accordance with the provisions of the Class A-2 Certificates, the Class
A-2 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 A-2 Cash Collateral Account and apply the same in accordance with
the terms of Section 3.6(i) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
(5) The Borrower hereby requests that the Advance requested
hereby be a Base Rate Advance [and that such Base Rate Advance be
converted into a LIBOR Advance on the third Business Day following your
receipt of this notice.](1)
----------
(1) Bracketed language may be included at Borrower's option.
IV-1
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Final Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the obligation
of the Liquidity Provider to make further Advances under the Liquidity
Agreement; and (B) following the making by the Liquidity Provider of the Final
Advance requested by this Notice of Borrowing, the Borrower shall not be
entitled to request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent,
as Borrower
By:
---------------------------------
Name:
Title:
IV-2
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Final Advance Notice of
Borrowing]
IV-3
Annex V to
Revolving Credit Agreement
NOTICE OF TERMINATION
[Date]
Wilmington Trust Company,
as Subordination Agent, as Borrower
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Revolving Credit Agreement dated as of October , 2001, between Wilmington Trust
Company, as Subordination Agent, as agent and trustee for the Southwest
Airlines Pass Through Trust, 2001-1A-2, as Borrower, and Westdeutsche
Landesbank Girozentrale, acting through its New York branch (the
"Liquidity Agreement")
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.01 of the
Liquidity Agreement, by reason of the occurrence of a Liquidity Event of Default
and the existence of a Performing Note Deficiency (each as defined therein), we
are giving this notice to you in order to cause (i) our obligations to make
Advances (as defined therein) under such Liquidity Agreement to terminate on the
fifth Business Day after the date on which you receive this notice and (ii) you
to request a Final Advance under the Liquidity Agreement pursuant to Section
3.6(i) of the Intercreditor Agreement (as defined in the Liquidity Agreement) as
a consequence of your receipt of this notice.
V-1
THIS NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR UNDER
THE LIQUIDITY AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY
AGREEMENT WILL TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU
RECEIVE THIS NOTICE.
Very truly yours,
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, acting through its New
York branch,
as Liquidity Provider
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
cc: Wilmington Trust Company,
as Class A-2 Trustee
V-2
Annex VI to
Revolving Credit Agreement
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement dated as of October , 2001, between
Wilmington Trust Company, as Subordination Agent, as agent and trustee
for the Southwest Airlines Pass Through Trust, 2001-1A-2, as Borrower,
and Westdeutsche Landesbank Girozentrale, acting through its New York
branch (the "Liquidity Agreement")
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby
irrevocably transfers to:
------------------------------
[Name of Transferee]
------------------------------
[Address of Transferee]
all rights and obligations of the undersigned as Borrower under the Liquidity
Agreement referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the first
paragraph of the Liquidity Agreement, pursuant to the terms of Section 8.1 of
the Intercreditor Agreement.
By this transfer, all rights of the undersigned as Borrower
under the Liquidity Agreement are transferred to the transferee and the
transferee shall hereafter have the sole rights and obligations as Borrower
thereunder. The undersigned shall pay any costs and expenses of such transfer,
including, but not limited to, transfer taxes or governmental charges.
VI-1
We ask that this transfer be effective as of _______________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent,
as Borrower
By:
---------------------------------
Name:
Title:
VI-2
