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REVOLVING CREDIT AGREEMENT
(1997-3B)
Dated as of September 25, 1997
between
WILMINGTON TRUST COMPANY,
as Subordination Agent,
as agent and trustee for the
Continental Airlines Pass Through Trust 1997-3B
as Borrower
and
ABN AMRO BANK N.V., CHICAGO BRANCH
as Liquidity Provider
Relating to
Continental Airlines Pass Through Trust 1997-3B
7.140% Continental Airlines Pass Through Certificates,
Series 1997-3B
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TABLE OF CONTENTS
PAGE
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ARTICLE I.
DEFINITIONS
Section 1.1 Certain Defined Terms..........................................1
ARTICLE II.
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.1 The Advances....................................................6
Section 2.2 Making the Advances.............................................7
Section 2.3. Fees............................................................9
Section 2.4. Adjustments or Termination of the Maximum Commitment............9
Section 2.5. Repayments of Interest Advances or the Final Advance............9
Section 2.6. Repayments of Provider Advances................................10
Section 2.7. Payments to the Liquidity Provider Under the Intercreditor
Agreement......................................................11
Section 2.8. Book Entries...................................................11
Section 2.9. Payments from Available Funds Only.............................11
Section 2.10. Extension of the Expiry Date; Non-Extension Advance............11
ARTICLE III.
OBLIGATIONS OF THE BORROWER
Section 3.1. Increased Costs................................................12
Section 3.2. Capital Adequacy...............................................13
Section 3.3. Payments Free of Deductions....................................13
Section 3.4. Payments.......................................................14
Section 3.5. Computations...................................................14
Section 3.6. Payment on Non-Business Days...................................14
Section 3.7. Interest.......................................................14
Section 3.8. Replacement of Borrower........................................16
Section 3.9. Funding Loss Indemnification...................................16
Section 3.10. Illegality.....................................................17
TABLE OF CONTENTS
(Continued)
PAGE
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ARTICLE IV.
CONDITIONS PRECEDENT
Section 4.1. Conditions Precedent to Effectiveness of Section 2.1...........17
Section 4.2. Conditions Precedent to Borrowing..............................19
ARTICLE V.
COVENANTS
Section 5.1. Affirmative Covenants of the Borrower..........................19
Section 5.2. Negative Covenants of the Borrower.............................19
ARTICLE VI.
LIQUIDITY EVENTS OF DEFAULT
Section 6.1. Liquidity Events of Default....................................20
ARTICLE VII.
MISCELLANEOUS
Section 7.1. Amendments, Etc................................................20
Section 7.2. Notices, Etc...................................................20
Section 7.3. No Waiver; Remedies............................................21
Section 7.4. Further Assurances.............................................21
Section 7.5. Indemnification; Survival of Certain Provisions................21
Section 7.6. Liability of the Liquidity Provider............................22
Section 7.7. Costs, Expenses and Taxes......................................22
Section 7.8. Binding Effect; Participations.................................23
Section 7.9. Severability...................................................24
Section 7.10. Governing Law..................................................25
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of
Immunity.......................................................25
Section 7.12. Execution in Counterparts......................................26
Section 7.13. Entirety.......................................................26
Section 7.14. Headings.......................................................26
Section 7.15. Liquidity Provider's Obligation To Make Advances...............26
TABLE OF CONTENTS
(Continued)
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
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT dated as of September 25, 1997,
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 B Trust (as defined
below) (the "BORROWER"), and ABN AMRO BANK N.V., a bank organized under the laws
of The Netherlands, acting through its Chicago Branch ("ABN AMRO" or the
"LIQUIDITY PROVIDER").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Class B Trust Agreement (such term and all
other capitalized terms used in these recitals having the meanings set forth or
referred to in Section 1.1), the Class B Trust is issuing the Class B
Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a
portion of the interest on the Class B Certificates in accordance with their
terms, has requested the Liquidity Provider to enter into this Agreement,
providing in part for the Borrower to request in specified circumstances that
Advances be made hereunder.
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I.
DEFINITIONS
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Section 1.1. 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
3.1.
"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 3.7(g).
"APPLICABLE MARGIN" means (w) with respect to any Unpaid Advance or
Applied Provider Advance, 2.00% or (x) with respect to any Unapplied
Provider Advance, .40%.
"APPLIED DOWNGRADE ADVANCE" has the meaning assigned to such term in
Section 2.6(a).
"APPLIED NON-EXTENSION ADVANCE" has the meaning assigned to such term
in Section 2.6(a).
"APPLIED PROVIDER ADVANCE" has the meaning assigned to such term in
Section 2.6(a).
"BASE RATE" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to (a) the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or if such
rate is not so published for any day that is a Business Day, the average of
the quotations for such day for such transactions received by the Liquidity
Provider from three Federal funds brokers of recognized standing selected
by it, plus (b) one-quarter of one percent (1/4 of 1%).
"BASE RATE ADVANCE" means an Advance that bears interest at a rate
based upon the Base Rate.
"BORROWER" has the meaning assigned to such term in the recital of
parties to this Agreement.
"BORROWING" means the making of Advances requested by delivery of a
Notice of Borrowing.
"BUSINESS DAY" means any day other than a Saturday or Sunday or a day
on which commercial banks are required or authorized to close in Houston,
Texas, New York, New York, Chicago, Illinois or, so long as any Class B
Certificate is outstanding, the city and state in which the Class B
Trustee, the Borrower or any Loan Trustee maintains its Corporate Trust
Office or receives or disburses funds, and, if the applicable Business Day
relates to any Advance or other amount bearing interest based on the LIBOR
Rate, on which dealings are carried on in the London interbank market.
"DOWNGRADE ADVANCE" means an Advance made pursuant to Section 2.2(c).
"EFFECTIVE DATE" has the meaning specified in Section 4.1. The
delivery of the certificate of the Liquidity Provider contemplated by
Section 4.1(e) shall be conclusive evidence that the Effective Date has
occurred.
"EXCLUDED TAXES" means (i) taxes imposed on the overall net income of
the Liquidity Provider or of its Lending Office by the jurisdiction where
such Liquidity Provider's principal office or such Lending Office is
located, and (ii) Excluded Withholding Taxes.
"EXCLUDED WITHHOLDING TAXES" means (i) withholding Taxes imposed by
the United States except to the extent that such United States withholding
Taxes are imposed as a result of any change in applicable law after the
date hereof (excluding from change in applicable law for this purpose a
change in an applicable treaty or other change in law affecting the
applicability of a treaty), or in the case of a successor Liquidity
Provider (including a transferee of an Advance) or Lending Office, after
the date on which such successor Liquidity Provider obtains its interest or
on which the Lending Office is changed, and (ii) any withholding Taxes
imposed by the United States which are imposed or increased as a result of
the Liquidity Provider failing to deliver to the Borrower any certificate
or document (which certificate or document in the good faith judgment of
the Liquidity Provider it is legally entitled to provide) which is
reasonably requested by the Borrower to establish that payments under this
Agreement are exempt from (or entitled to a reduced rate of) withholding
Tax.
"EXPENSES" means liabilities, obligations, damages, settlements,
penalties, claims, actions, suits, costs, expenses, and disbursements
(including, without limitation, reasonable fees and disbursements of legal
counsel and costs of investigation), provided that Expenses shall not
include any Taxes.
"EXPIRY DATE" means September 24, 1998, 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 2.2(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 2.2(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 B Cash
Collateral Account for the purpose of paying interest on the Class B
Certificates as contemplated by Section 2.6(a) hereof and, in either case,
ending on the next Regular Distribution Date; and
(ii) each subsequent period co mmencing on the last day of the
immediately preceding Interest Period and ending on the next Regular
Distribution Date;
PROVIDED, HOWEVER, that if (x) the Final Advance shall have been made, or
(y) other outstanding Advances shall have been converted into the Final
Advance, then the Interest Periods shall be successive periods of one month
beginning on the third Business Day following the Liquidity Provider's
receipt of the Notice of Borrowing for such Final Advance (in the case of
clause (x) above) or the Regular Distribution Date following such
conversion (in the case of clause (y) above).
"LENDING OFFICE" means the lending office of the Liquidity Provider
presently located at Chicago, Illinois, or such other lending office as the
Liquidity Provider from time to time shall notify the Borrower as its
lending office hereunder; provided that the Liquidity Provider shall not
change its Lending Office to a Lending Office outside the United States of
America except in accordance with Section 3.1, 3.2 or 3.3 hereof.
"LIBOR ADVANCE" means an Advance bearing interest at a rate based upon
the LIBOR Rate.
"LIBOR RATE" means, with respect to any Interest Period, the average
(rounded upward, if necessary, to the next higher 1/16 of 1%) of the rates
per annum at which deposits in dollars are offered to major banks in the
London interbank market at approximately 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period in an amount
approximately equal to the principal amount of the Advance to which such
Interest Period is to apply and for a period of time comparable to such
Interest Period.
"LIQUIDITY EVENT OF DEFAULT" means the occurrence of either (a) the
Acceleration of all of the Equipment Notes or (b) a Continental Bankruptcy
Event.
"LIQUIDITY INDEMNITEE" means (i) the Liquidity Provider, (ii) the
directors, officers, employees 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.
"MAXIMUM AVAILABLE COMMITMENT" shall mean, subject to the proviso
contained in the third sentence of Section 2.2(a), at any time of
determination, (a) the Maximum Commitment at such time less (b) the
aggregate amount of each Interest Advance outstanding at such time;
provided that following a Provider Advance or a Final Advance, the Maximum
Available Commitment shall be zero.
"MAXIMUM COMMITMENT" means, for any day, the lesser of (x) $2,113,190
and (y) the Required Amount on such day.
"NON-EXTENSION ADVANCE" means an Advance made pursuant to Section
2.2(b).
"NOTICE OF BORROWING" has the meaning specified in Section 2.2(e).
"NOTICE OF REPLACEMENT SUBORDINATION AGENT" has the meaning specified
in Section 3.8.
"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" means the Prospectus dated July 23, 1997, as modified and
supplemented by the Prospectus Supplement dated September 12, 1997,
relating to the Certificates; and as such Prospectus may be further 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
3.1.
"REPLENISHMENT AMOUNT" has the meaning assigned to such term in
Section 2.6(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 B Certificates, that would be payable on the Class B
Certificates on each of the six successive quarterly Regular Distribution
Dates immediately following such day or, if such day is a Regular
Distribution Date, on such day and the succeeding five quarterly Regular
Distribution Dates, in each case calculated on the basis of the Pool
Balance of the Class B Certificates on such day and without regard to
expected future payments of principal on the Class B Certificates.
"ROLLS ROYCE" means Rolls-Royce plc, a corporation organized under the
laws of England.
"TAX LETTER" means the letter dated the date hereof between the
Liquidity Provider and Rolls Royce pertaining to this Agreement.
"TERMINATION DATE" means the earliest to occur of the following: (i)
the Expiry Date; (ii) the date on which the Borrower delivers to the
Liquidity Provider a certificate, signed by a Responsible Officer of the
Borrower, certifying that all of the Class B Certificates have been paid in
full (or provision has been made for such payment in accordance with the
Intercreditor Agreement and the Trust Agreements) or are otherwise no
longer entitled to the benefits of this Agreement; (iii) the date on which
the Borrower delivers to the Liquidity Provider a certificate, signed by a
Responsible Officer of the Borrower, certifying that a Replacement
Liquidity Facility has been substituted for this Agreement in full pursuant
to Section 3.6(e) of the Intercreditor Agreement; (iv) the fifth Business
Day following the receipt by the Borrower of a Termination Notice from the
Liquidity Provider pursuant to Section 6.1 hereof; and (v) the date on
which no Advance is or may (including by reason of reinstatement as herein
provided) become available for a Borrowing hereunder.
"TERMINATION NOTICE" means the Notice of Termination substantially in
the form of Annex V to this Agreement.
"TRANSFEREE" has the meaning assigned to such term in Section 7.8(b).
"UNAPPLIED DOWNGRADE ADVANCE" means any Downgrade Advance other than
an Applied Downgrade 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 2.5.
(b) TERMS DEFINED IN THE INTERCREDITOR AGREEMENT. For all purposes of
this Agreement, the following terms shall have the respective meanings assigned
to such terms in the Intercreditor Agreement:
"Acceleration," "Certificates", "Class A Cash Collateral Account",
"Class A Certificates", "Class A Certificateholders", "Class A Trust",
"Class A Trust "ACCELERATION," "CERTIFICATES", "CLASS A CASH
COLLATERAL ACCOUNT", "CLASS A CERTIFICATES", "CLASS A
CERTIFICATEHOLDERS", "CLASS A TRUST", "CLASS A TRUST AGREEMENT",
"CLASS A TRUSTEE", "CLASS B CASH COLLATERAL ACCOUNT", "CLASS B
CERTIFICATES", "CLASS B CERTIFICATEHOLDERS", "CLASS B TRUST", "CLASS B
TRUST AGREEMENT", "CLASS B TRUSTEE", "CLASS C CASH COLLATERAL
ACCOUNT", "CLASS C CERTIFICATES", "CLASS C CERTIFICATEHOLDERS", "CLASS
C TRUST", "CLASS C TRUST AGREEMENT", "CLASS C TRUSTEE", "CLOSING
DATE", "CONTINENTAL", "CONTINENTAL BANKRUPTCY EVENT", "CONTROLLING
PARTY", "CORPORATE TRUST OFFICE", "DELIVERY PERIOD EXPIRY DATE",
"DISTRIBUTION DATE", "DOWNGRADED FACILITY", "EQUIPMENT NOTES", "FEE
LETTER", "FINANCING AGREEMENT", "INDENTURE", "INVESTMENT EARNINGS",
"LIQUIDITY FACILITY", "LOAN TRUSTEE", "▇▇▇▇▇'▇", "NON-EXTENDED
FACILITY", "OPERATIVE AGREEMENTS", "PERFORMING EQUIPMENT NOTE",
"PERSON", "POOL BALANCE", "PURCHASE AGREEMENT", "RATING AGENCY",
"REGULAR DISTRIBUTION DATE", "REPLACEMENT LIQUIDITY FACILITY",
"RESPONSIBLE OFFICER", "SCHEDULED PAYMENT", "SPECIAL PAYMENT",
"STANDARD & POOR'S", "STATED INTEREST RATE", "SUBORDINATION AGENT",
"TAXES", "THRESHOLD RATING", "TRANSFER", "TRUST AGREEMENTS",
"TRUSTEE", "UNDERWRITERS", "UNDERWRITING AGREEMENT" and "WRITTEN
NOTICE".
ARTICLE II.
AMOUNT AND TERMS OF THE COMMITMENT
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Section 2.1. 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 2.4(b)) in an aggregate amount at any time
outstanding not to exceed the Maximum Commitment.
Section 2.2. MAKING THE ADVANCES.
2.2.1. Interest Advances shall be made in one or more
Borrowings by delivery to the Liquidity Provider of one or more
written and completed Notices of Borrowing in substantially the form
of Annex I attached hereto, signed by a Responsible Officer of the
Borrower, in an amount not exceeding the Maximum Available Commitment
at such time and shall be used solely for the payment when due of the
interest on the Class B Certificates at the Stated Interest Rate
therefor in accordance with Section 3.6(a) of the Intercreditor
Agreement. Each Interest Advance made hereunder shall automatically
reduce the 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 of the
amount of any Interest Advance made pursuant to this Section 2.2(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.
2.2.2. 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 previously
delivered to the Borrower in accordance with said Section 3.6(d)) by
delivery to the Liquidity Provider of a written and completed Notice
of Borrowing in substantially the form of Annex II attached hereto,
signed by a Responsible Officer of the Borrower, in an amount equal to
the Maximum Available Commitment at such time, and shall be used to
fund the Class B Cash Collateral Account in accordance with said
Section 3.6(d).
2.2.3. A Downgrade Advance shall be made in a single
Borrowing upon a downgrading of the Liquidity Provider's short-term
unsecured debt rating issued by either Rating Agency below the
Threshold Rating (as provided for in Section 3.6(c) of the
Intercreditor Agreement) unless a Replacement Liquidity Facility to
replace this Agreement shall have been previously delivered to the
Borrower in accordance with said Section 3.6(c), 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
B Cash Collateral Account in accordance with said Section 3.6(c).
2.2.4. 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 6.1 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
B Cash Collateral Account (in accordance with Section 3.6(i) of the
Intercreditor Agreement).
2.2.5. Each Borrowing shall be made on notice in writing
(a "NOTICE OF BORROWING") in substantially the form required by
Section 2.2(a), 2.2(b), 2.2(c) or 2.2(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
12:00 Noon (New York City time) on a Business Day, the Liquidity
Provider shall, upon satisfaction of the conditions precedent set
forth in Section 4.2 with respect to a requested Borrowing, 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 in such Notice of Borrowing, make
available to the Borrower, in accordance with its payment
instructions, in U.S. dollars and immediately available funds, the
amount of such Borrowing. If a Notice of Borrowing is delivered by the
Borrower in respect of any Borrowing after 12:00 Noon (New York City
time) on a Business Day, the Liquidity Provider shall, upon
satisfaction of the conditions precedent set forth in Section 4.2 with
respect to a requested Borrowing, before 12:00 Noon (New York City
time) on the second 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, make available to the
Borrower, in accordance with its payment instructions, in U.S. dollars
and in immediately available funds, the amount of such Borrowing.
Payments of proceeds of a Borrowing shall be made by wire transfer of
immediately available funds to the Borrower in accordance with such
wire transfer instructions as the Borrower shall furnish from time to
time to the Liquidity Provider for such purpose. Each Notice of
Borrowing shall be irrevocable and binding on the Borrower.
2.2.6. Upon the making of any Advance requested pursuant
to a Notice of Borrowing, in accordance with the Borrower's payment
instructions, the Liquidity Provider shall be fully discharged of its
obligation hereunder with respect to such Notice of Borrowing, and the
Liquidity Provider shall not thereafter be obligated to make any
further Advances hereunder in respect of such Notice of Borrowing to
the Borrower or to any other Person. Following the making of any
Advance pursuant to Section 2.2(b), (c) or (d) hereof to fund the
Class B Cash Collateral Account, the Liquidity Provider shall have no
interest in or rights to the Class B Cash Collateral Account, such
Advance or any other amounts from time to time on deposit in the Class
B Cash Collateral Account; provided that the foregoing shall not
affect or impair the obligations of the Subordination Agent to make
the distributions contemplated by Section 3.6(e) or (f) of the
Intercreditor Agreement. By paying to the Borrower proceeds of
Advances requested by the Borrower in accordance with the provisions
of this Agreement, the Liquidity Provider makes no representation as
to, and assumes no responsibility for, the correctness or sufficiency
for any purpose of the amount of the Advances so made and requested.
Section 2.3. FEES. Borrower agrees to pay to the Liquidity Provider
the fees set forth in the Fee Letter.
Section 2.4. ADJUSTMENTS OR TERMINATION OF THE MAXIMUM COMMITMENT.
2.4.1. AUTOMATIC ADJUSTMENTS. Promptly following each date
on which the Required Amount is reduced as a result of a reduction in
the Pool Balance of the Class B Certificates or otherwise, clause (y)
of the definition of Maximum Commitment shall automatically be reduced
to an amount equal to the 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.
2.4.2. 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 2.5. REPAYMENTS OF INTEREST ADVANCES OR THE FINAL ADVANCE.
Subject to Sections 2.6, 2.7 and 2.9 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 3.7 hereof; PROVIDED that if (i) the Liquidity
Provider shall make a Provider Advance at any time after making one or more
Interest Advances which shall not have been repaid in accordance with this
Section 2.5 or (ii) this Liquidity Facility shall become a Downgraded Facility
or Non-Extended Facility at any time when unreimbursed Interest Advances have
reduced the Maximum Available Commitment to zero, then such Interest Advances
shall cease to constitute Unpaid Advances and shall be deemed to have been
changed into an Applied Downgrade Advance or an Applied Non-Extension Advance,
as the case may be, for all purposes of this Agreement (including, without
limitation, for the purpose of determining when such Interest Advance is
required to be repaid to the Liquidity Provider in accordance with Section 2.6
and for the purposes of Section 2.6(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 2.6. REPAYMENTS OF PROVIDER ADVANCES.
2.6.1. Amounts advanced hereunder in respect of a Provider
Advance shall be deposited in the Class B Cash Collateral Account,
invested and withdrawn from the Class B Cash Collateral Account as set
forth in Sections 3.6(c), (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 3.7;
PROVIDED, HOWEVER, that amounts in respect of a Provider Advance
withdrawn from the Class B Cash Collateral Account for the purpose of
paying interest on the Class B Certificates in accordance with Section
3.6(f) of the Intercreditor Agreement (the amount of any such
withdrawal being (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 2.6(b)) be treated as an Interest Advance under
this Agreement for purposes of determining the Applicable Liquidity
Rate for interest payable thereon; PROVIDED FURTHER, HOWEVER, that if,
following the making of a Provider Advance, the Liquidity Provider
delivers a Termination Notice to the Borrower pursuant to Section 6.1
hereof, such Provider Advance shall thereafter be treated as a Final
Advance under this Agreement for purposes of determining the
Applicable Liquidity Rate for interest payable thereon. Subject to
Sections 2.7 and 2.9 hereof, immediately upon the withdrawal of any
amounts from the Class B 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 3.7 hereof.
2.6.2. At any time when an Applied Provider Advance (or
any portion thereof) is outstanding, upon the deposit in the Class B
Cash Collateral Account of any amount pursuant to clause "THIRD" of
Section 2.4(b) of the Intercreditor Agreement, clause "THIRD" of
Section 3.2 of the Intercreditor Agreement or clause "FOURTH" of
Section 3.3 of the Intercreditor Agreement (any such amount being a
"REPLENISHMENT AMOUNT") for the purpose of replenishing or increasing
the balance thereof up to the Required Amount at such time, (i) the
aggregate outstanding principal amount of all Applied Provider
Advances (and of Provider Advances treated as an Interest Advance for
purposes of determining the Applicable Liquidity Rate for interest
payable thereon) shall be automatically reduced by the amount of such
Replenishment Amount and (ii) the aggregate outstanding principal
amount of all Unapplied Provider Advances shall be automatically
increased by the amount of such Replenishment Amount.
2.6.3. 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 B 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 2.7. PAYMENTS TO THE LIQUIDITY PROVIDER UNDER THE
INTERCREDITOR AGREEMENT. In order to provide for payment or repayment to the
Liquidity Provider of any amounts hereunder, the Intercreditor Agreement
provides that amounts available and referred to in Articles II and III of the
Intercreditor Agreement, to the extent payable to the Liquidity Provider
pursuant to the terms of the Intercreditor Agreement (including, without
limitation, Section 3.6(f) of the Intercreditor Agreement), shall be paid to the
Liquidity Provider in accordance with the terms thereof. Amounts so paid to the
Liquidity Provider shall be applied by the Liquidity Provider to Liquidity
Obligations then due and payable in accordance with the Intercreditor Agreement
or, if not provided for in the Intercreditor Agreement, then in such manner as
the Liquidity Provider shall deem appropriate.
Section 2.8. 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 2.9. 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
9.1 of the Participation Agreements 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 will look solely to such amounts to the extent
available for distribution to it as provided in the Intercreditor Agreement and
this Agreement and that the Borrower, in its individual capacity, is not
personally liable to it for any amounts payable or liability under this
Agreement except as expressly provided in this Agreement, the Intercreditor
Agreement or any Participation Agreement. Amounts on deposit in the Class B 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 Maturity Date for the Class B Certificates), the
Borrower shall request that the Liquidity Provider extend the Expiry Date for a
period of 364 days after the then effective Expiry Date (unless the obligations
of the Liquidity Provider are earlier terminated in accordance with the terms
hereof). The Liquidity Provider shall advise the Borrower, no earlier than 40
days and no later than 25 days prior to the then effective Expiry Date, whether,
in its sole discretion, it agrees to so extend the Expiry Date. If the Liquidity
Provider advises the Borrower on or before the 25th day prior to the Expiry Date
then in effect that such Expiry Date shall not be so extended, or fails to
irrevocably and unconditionally advise the Borrower on or before the 25th day
prior to the Expiry Date then in effect 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 such 25th day (but prior to the then
effective Expiry Date) to request a Non-Extension Advance in accordance with
Section 2.2(b) hereof and Section 3.6(d) of the Intercreditor Agreement.
ARTICLE III.
OBLIGATIONS OF THE BORROWER
---------------------------
Section 3.1. INCREASED COSTS. Subject to the Fee Letter, the Borrower
shall pay to the Liquidity Provider from time to time such amounts as may be
necessary to compensate the Liquidity Provider for any increased costs incurred
by the Liquidity Provider which are attributable to its making or maintaining
any LIBOR Advances hereunder or its obligation to make any such Advances
hereunder, or any reduction in any amount receivable by the Liquidity Provider
under this Agreement or the Intercreditor Agreement in respect of any such
Advances or such obligation (such increases in costs and reductions in amounts
receivable being herein called "ADDITIONAL COSTS"), resulting from any change
after the date of this Agreement in U.S. federal, state, municipal, or foreign
laws or regulations (including Regulation D), or the adoption or making after
the date of this Agreement of any interpretations, directives, or requirements
applying to a class of banks including the Liquidity Provider under any U.S.
federal, state, municipal, or any foreign laws or regulations (whether or not
having the force of law) by any court, central bank or monetary authority
charged with the interpretation or administration thereof (a "REGULATORY
CHANGE"), which: (1) changes the basis of taxation of any amounts payable to the
Liquidity Provider under this Agreement in respect of any such Advances (other
than Excluded Taxes); or (2) imposes or modifies any reserve, special deposit,
compulsory loan or similar requirements relating to any extensions of credit or
other assets of, or any deposits with other liabilities of, the Liquidity
Provider (including any such Advances or any deposits referred to in the
definition of LIBOR Rate or related definitions). The Liquidity Provider agrees
to use reasonable efforts (consistent with applicable legal and regulatory
restrictions) to change the jurisdiction of its Lending Office if making such
change would avoid the need for, or reduce the amount of, any amount payable
under this Section 3.1 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 will notify the Borrower of any event occurring
after the date of this Agreement that will entitle the Liquidity Provider to
compensation pursuant to this Section 3.1 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 3.1 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.
Section 3.2. CAPITAL ADEQUACY. Subject to the Fee Letter, if (1) the
adoption, after the date hereof, of any applicable governmental law, rule or
regulation regarding capital adequacy, (2) any change, after the date hereof, in
the interpretation or administration of any such law, rule or regulation by any
central bank or other governmental authority charged with the interpretation or
administration thereof or (3) compliance by the Liquidity Provider or any
corporation controlling the Liquidity Provider with any applicable guideline or
request of general applicability, issued after the date hereof, by any central
bank or other governmental authority (whether or not having the force of law)
that constitutes a change of the nature described in clause (2), has the effect
of requiring an increase in the amount of capital required to be maintained by
the Liquidity Provider or any 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
from time to time such additional amount or amounts as are necessary to
compensate the Liquidity Provider for such portion of such increase 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 that may thereafter accrue and
would not, in the reasonable judgment of the Liquidity Provider, be otherwise
materially disadvantageous to the Liquidity Provider.
The Liquidity Provider will notify the Borrower of any event occurring
after the date of this Agreement that will entitle the Liquidity Provider to
compensation pursuant to this Section 3.2 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 3.2 of the effect of any increase in the amount of capital required
to be maintained by the bank and of the amount allocable to the Liquidity
Provider's obligations to the Borrower hereunder shall be prima facie evidence
of the amounts owed under this Section.
Section 3.3. PAYMENTS FREE OF DEDUCTIONS. All payments made by the
Borrower under this Agreement shall be made free and clear of, and without
reduction for or on account of, any present or future stamp or other taxes,
levies, imposts, duties, charges, fees, deductions, withholdings, restrictions
or conditions of any nature whatsoever now or hereafter imposed, levied,
collected, withheld or assessed, excluding Excluded Taxes (such non-excluded
taxes being referred to herein, collectively, as "Non-Excluded Taxes" and,
individually, as a "Non-Excluded Tax"). If any Non-Excluded Taxes are required
to be withheld from any amounts payable to the Liquidity Provider under this
Agreement, the amounts so payable to the Liquidity Provider shall be increased
to the extent necessary to yield to the Liquidity Provider (after payment of all
Non-Excluded Taxes) interest or any other such amounts payable under this
Agreement at the rates or in the amounts specified in this Agreement. The
Liquidity Provider agrees to use reasonable efforts (consistent with its
internal policy and 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 disadvantageous to the Liquidity Provider. From time to time upon the
reasonable request of the Borrower, the Liquidity Provider agrees to provide to
the Borrower two original Internal Revenue Service Forms 1001 or 4224, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that the Liquidity Provider is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to this
Agreement.
Section 3.4. 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 ABN AMRO Bank N.V., New York,
NY, ABA # ▇▇▇▇▇▇▇▇▇, Account Name: ABN AMRO Bank, N.V. - Chicago Branch, Account
# 650-001-1789-41, Reference: Continental Airlines, Inc. Pass Through Trust
1997-3B .
Section 3.5. COMPUTATIONS. All computations of interest based on the
Base Rate shall be made on the basis of a year of 365 or 366 days, as the case
may be, and all computations of interest based on the LIBOR Rate 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 3.6. 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 or reduce the number
of days for which interest will be payable on such Advance on the next interest
payment date for such Advance.
Section 3.7. INTEREST.
3.7.1. Subject to Section 2.9, 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 B Cash Collateral Account to pay interest on the Class B
Certificates) to but excluding the date such principal amount shall be
paid in full (or, in the case of an Applied Provider Advance, the date
on which the Class B Cash Collateral Account is fully replenished in
respect of such Advance) and (ii) any other amount due hereunder
(whether fees, commissions, expenses or other amounts or, to the
extent permitted by 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 3.7 shall exceed
the maximum rate permitted by applicable law, then any subsequent
reduction in such interest rate will not reduce the rate of interest
payable pursuant to this Section 3.7 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 3.7 had at all
times been in effect.
3.7.2. Except as provided in clause (e) below, each
Advance will be either a Base Rate Advance or a LIBOR Advance as
provided in this Section. Each Advance will be a Base Rate Advance for
the period from the date of its borrowing to (but excluding) the third
Business Day following the Liquidity Provider's receipt of the Notice
of Borrowing for such Advance. Thereafter, such Advance shall be a
LIBOR Advance; provided 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 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.
3.7.3. Each LIBOR Advance shall bear interest during each
Interest Period at a rate per annum equal to the LIBOR Rate 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).
3.7.4. 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).
3.7.5. Each Unapplied Provider Advance (i) during the
period from and including the date of the making of such Unapplied
Provider Advance through but excluding the date of repayment thereof
or of conversion thereof into a Final Advance or Applied Provider
Advance (and for any additional periods of time during which such
Advance no longer constitutes an Applied Provider Advance but again
constitutes an Unapplied Provider Advance pursuant to Sections 2.6(a)
and (b) hereof), shall bear interest in an amount equal to the
Investment Earnings on amounts on deposit in the Class B Cash
Collateral Account for such period plus the Applicable Margin on the
amount of such Unapplied Provider Advance from time to time during
such period, payable in arrears on each Regular Distribution Date and
(ii) after conversion thereof into a Final Advance or Applied Provider
Advance (but only for such period of time during which such Advance
constitutes an Applied Provider Advance pursuant to Sections 2.6(a)
and (b) hereof), as the case may be, shall be a LIBOR Advance and
shall bear interest in accordance with clause (c) above.
3.7.6. 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% until paid.
3.7.7. Each change in the Base Rate shall become effective
immediately. The rates of interest specified in this Section 3.7 with
respect to any Advance or other amount shall be referred to as the
"APPLICABLE LIQUIDITY RATE".
Section 3.8. REPLACEMENT OF BORROWER. 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 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 3.9. 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:
(a) Any repayment of a LIBOR Advance on a date other than the last day
of the Interest Period for such Advance; or
(b) Any failure by the Borrower to borrow a LIBOR Advance on the date
for borrowing specified in the relevant notice under Section 2.2.
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 4.1. CONDITIONS PRECEDENT TO EFFECTIVENESS OF SECTION 2.1..
Section 2.1 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:
4.1.1. The Liquidity Provider shall have received on or
before the Closing Date each of the following, and in the case of each
document delivered pursuant to paragraphs (i), (ii) and (iii), each 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;
(iii) Fully executed copies of each of the Operative
Agreements executed and delivered on or before the Closing
Date (other than this Agreement and the Intercreditor
Agreement);
(iv) A copy of the Prospectus and specimen copies of
the Class B Certificates;
(v) An executed copy of each document, instrument,
certificate and opinion delivered on or before the Closing
Date pursuant to the Class B Trust Agreement, the
Intercreditor Agreement and the other Operative Agreements
(together with, in the case of each such opinion, other than
the opinion of counsel for the Underwriters, 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 Trustees,
the Borrower and the Liquidity Provider created by the
Operative Agreements executed and delivered on or prior to
the Closing Date;
(vii) An agreement from Continental, pursuant to
which (i) Continental agrees to provide copies of quarterly
financial statements and audited annual financial statements
to the Liquidity Provider, and such other information as the
Liquidity Provider shall reasonably request with respect to
the transactions contemplated by the Operative Agreements,
in each case, only to the extent that Continental is
obligated to provide such information pursuant to Section
8.2.1 of the Leases to the parties thereto and (ii)
Continental agrees to allow the Liquidity Provider to
inspect Continental's books and records regarding such
transactions, and to discuss such transactions with officers
and employees of Continental; and
(viii) Such other documents, instruments, opinions
and approvals as the Liquidity Provider shall have
reasonably requested.
4.1.2. The following statement shall be true on and as of
the Effective Date: 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.
4.1.3. 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.
4.1.4. All conditions precedent to the issuance of the
Certificates under the Trust Agreements shall have been satisfied, all
conditions precedent to the effectiveness of the other Liquidity
Facilities shall have been satisfied, and all conditions precedent to
the purchase of the Certificates by the Underwriters under the
Underwriting Agreement shall have been satisfied (unless any of such
conditions precedent shall have been waived by the Underwriters).
4.1.5. 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 2.1 have been satisfied or waived.
Section 4.2. 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 5.1. 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 will, unless the Liquidity
Provider shall otherwise consent in writing:
5.1.1. 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.
5.1.2. 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.
5.1.3. 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 5.2. 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 will not appoint or permit or
suffer to be appointed any successor Borrower without the written consent of the
Liquidity Provider, which consent shall not be unreasonably withheld or delayed.
ARTICLE VI.
LIQUIDITY EVENTS OF DEFAULT
---------------------------
Section 6.1. 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) this
Agreement to expire on the fifth Business Day after the date on which such
Termination Notice is received by the Borrower, (ii) the Borrower to promptly
request, and the Liquidity Provider to promptly make, a Final Advance in
accordance with Section 2.2(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 2.7 and 2.9 hereof,
all Advances (including, without limitation, 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 7.1. 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 or of a waiver by the
Borrower, 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 7.2. NOTICES, ETC. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including telecopier and mailed or delivered or sent by telecopier):
Borrower: WILMINGTON TRUST COMPANY
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Liquidity Provider: ABN AMRO BANK N.V.
Aerospace Department
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, V.P.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
ABN AMRO Bank N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., #▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Loan Operations
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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, (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. 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 7.3. 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 7.4. FURTHER ASSURANCES. The Borrower agrees to do such
further acts and things and to execute and deliver to the Liquidity Provider
such additional assignments, agreements, powers and instruments as the Liquidity
Provider may reasonably require or deem advisable to carry into effect the
purposes of this Agreement and the other Operative Agreements or to better
assure and confirm unto the Liquidity Provider its rights, powers and remedies
hereunder and under the other Operative Agreements.
Section 7.5. INDEMNIFICATION; SURVIVAL OF CERTAIN PROVISIONS. The
Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Section 9.1 of the Participation Agreements. In addition,
the Borrower agrees to indemnify, protect, defend and hold harmless the
Liquidity Provider from, against and in respect of, and shall pay on demand, all
Expenses of any kind or nature whatsoever (other than any Expenses of the nature
described in Sections 3.1, 3.2 or 7.7 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 Financing 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, the Tax
Letter or any other Operative Agreement to which it is a party. The indemnities
contained in such Section 9.1, and the provisions of Sections 3.1, 3.2, 3.3,
3.9, 7.5 and 7.7 hereof, shall survive the termination of this Agreement.
Section 7.6. LIABILITY OF THE LIQUIDITY PROVIDER.
7.6.1. 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 strictly complying with the
terms and conditions hereof.
7.6.2. Neither the Liquidity Provider nor any of its
officers, employees, director 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.
Section 7.7. 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 (including, without limitation, the reasonable fees and
expenses of outside counsel for the Liquidity Provider) 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 and (B)
on demand, all reasonable costs and expenses (including reasonable counsel fees
and expenses) of the Liquidity Provider 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 Cash Collateral
Accounts. In addition, the Borrower shall pay any and all recording, stamp and
other similar taxes and fees payable or determined to be payable in connection
with the execution, delivery, filing and recording of this Agreement, any other
Operative Agreement and such other documents, and agrees to save the Liquidity
Provider harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes or fees.
Section 7.8. BINDING EFFECT; PARTICIPATIONS.
7.8.1. 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 7.8) nor
(except as contemplated by Section 3.8) the Borrower 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 7.8(b). The Liquidity Provider may
grant participations herein or in any of its rights hereunder
(including, without limitation, funded participations and
participations in rights to receive interest payments hereunder) and
under the other Operative Agreements to such Persons as the Liquidity
Provider may in its sole discretion select, subject to the
requirements of Section 7.8(b). No such participation by the Liquidity
Provider, however, will 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 (other than Continental). Accordingly,
references in this Agreement and the other Operative Agreements to
determinations, reserve and capital adequacy requirements, increased
costs, reduced receipts, additional amounts due pursuant to Section
3.3(a) and the like as they pertain to the Liquidity Provider shall be
deemed also to include those of each of its participants (subject, in
each case, to the maximum amount that would have been incurred by or
attributable to the Liquidity Provider directly if the Liquidity
Provider, rather than the participant, had held the interest
participated).
7.8.2. If, pursuant to subsection (a) above, the Liquidity
Provider sells any participation in this Agreement to any bank or
other entity (each, a "TRANSFEREE"), then, concurrently with the
effectiveness of such participation, the Transferee 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 will be required to be withheld
with respect to any payments to be made to such Transferee in respect
of this Agreement, (ii) furnish to the Liquidity Provider and the
Borrower either (x) a statement that it is incorporated under the laws
of the United States or a state thereof or (y) if it is not so
incorporated, two copies of a properly completed United States
Internal Revenue Service Form 4224 or Form 1001, as appropriate, or
other applicable form, certificate or document prescribed by the
Internal Revenue Service certifying, in each case, such Transferee's
entitlement to a complete exemption from United States federal
withholding tax in respect to any and all payments to be made
hereunder, and (iii) agree (for the benefit of the Liquidity Provider
and the Borrower) to provide the Liquidity Provider and the Borrower a
new Form 4224 or Form 1001, as appropriate, (A) on or before the date
that any such form expires or becomes obsolete or (B) after the
occurrence of any event requiring a change in the most recent form
previously delivered by it and prior to the immediately following due
date of any payment by the Borrower hereunder, certifying in the case
of a Form 1001 or Form 4224 that such Transferee 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) 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.
7.8.3. Notwithstanding the other provisions of this
Section 7.8, 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 7.9. 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 nonauthorization 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.
Section 7.11. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL; WAIVER
OF IMMUNITY.
7.11.1. 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
nonexclusive 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 7.2
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 ▇▇▇ in any
other jurisdiction.
7.11.2. THE BORROWER AND THE LIQUIDITY PROVIDER EACH
HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT
OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT AND THE RELATIONSHIP THAT IS BEING ESTABLISHED, including,
without limitation, contract claims, tort claims, breach of duty
claims and all other common law and statutory claims. The Borrower and
the Liquidity Provider each warrant and represent that it has reviewed
this waiver with its legal counsel, and that it knowingly and
voluntarily waives its jury trial rights following consultation with
such legal counsel. THIS WAIVER IS IRREVOCABLE, AND CANNOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT.
7.11.3. 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
judgement entered by any such court under the United States Foreign
Sovereign Immunities Act of 1976 or any similar successor legislation.
Section 7.12. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 7.13. ENTIRETY. This Agreement, 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.
* * *
IN WITNESS WHEREOF, the parties have caused this Agreement to be duty
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 B Trust, as
Borrower
By:_______________________________________
Name:
Title:
ABN AMRO BANK N.V., acting through its
Chicago 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 ABN AMRO N.V., Chicago Branch
(the "LIQUIDITY PROVIDER"), with reference to the Revolving Credit Agreement
(1997-3B) dated as of September 25, 1997, between the Borrower and the Liquidity
Provider (the "LIQUIDITY AGREEMENT"; the terms defined therein and not otherwise
defined herein being used herein as therein defined or referenced), that:
(a) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(b) 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 the interest on the Class B Certificates which was
payable on __________ (the "DISTRIBUTION DATE") in accordance with the
terms and provisions of the Class B Trust Agreement and the Class B
Certificates, which Advance is requested to be made on
__________________.
(c) The amount of the Interest Advance requested hereby (i) is
$__________, to be applied in respect of the payment of the interest
which was due and payable on the Class B Certificates on the
Distribution Date, (ii) does not include any amount with respect to
the payment of principal of, or premium on, the Class B Certificates,
the Class A Certificates or the Class C Certificates, or interest on
the Class A Certificates or the Class C Certificates, (iii) was
computed in accordance with the provisions of the Class B
Certificates, the Class B Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule
I), (iv) does not exceed the 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.
(d) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will 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 Certificate and such
reduction shall automatically result in corresponding reductions in the amounts
available to be borrowed pursuant to a subsequent Advance.
* * *
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the day of _________ day of ________________, ____.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Subordination Agent, as Borrower
By:_______________________________________
Name:
Title:
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Interest Advance Notice of Borrowing]
Annex II
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 ABN AMRO BANK N.V.,
Chicago Branch (the "LIQUIDITY PROVIDER"), with reference to the Revolving
Credit Agreement (1997-3B) dated as of September 25, 1997, between the Borrower
and the Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms defined therein
and not otherwise defined herein being used herein as therein defined or
referenced), that:
(a) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(b) 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 B Cash Collateral Account in
accordance with Section 3.6(d) of the Intercreditor Agreement, which
Advance is requested to be made on _____________.
(c) 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 B 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 B
Certificates, or principal of, or interest or premium on, the Class A
Certificates or the Class C Certificates, (iii) was computed in
accordance with the provisions of the Class B Certificates, the Class
B Trust Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), and (iv) has not been
and is not the subject of a prior or contemporaneous Notice of
Borrowing under the Liquidity Agreement.
(d) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the
Class B 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.
* * *
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the day of _______ day of ___________________, ______.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Subordination Agent, as Borrower
By:_______________________________________
Name:
Title:
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Non-Extension Advance Notice of Borrowing]
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 ABN AMRO BANK N.V.,
Chicago Branch (the "LIQUIDITY PROVIDER"), with reference to the Revolving
Credit Agreement (1997-3B) dated as of September 25, 1997, between the Borrower
and the Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms defined therein
and not otherwise defined herein being used herein as therein defined or
referenced), that:
(a) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(b) The Borrower is delivering this Notice of Borrowing for the
making of the Downgrade Advance by the Liquidity Provider to be used
for the funding of the Class B Cash Collateral Account in accordance
with Section 3.6(c) of the Intercreditor Agreement by reason of the
downgrading of the 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 ____________, _____.
(c) 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 B
Cash Collateral Account in accordance with Section 3.6(c) of the
Intercreditor Agreement, (ii) does not include any amount with respect
to the payment of the principal of, or premium on, the Class B
Certificates, or principal of, or interest or premium on, the Class A
Certificates or the Class C Certificates, (iii) was computed in
accordance with the provisions of the Class B Certificates, the Class
B Trust Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), and (iv) has not been
and is not the subject of a prior or contemporaneous Notice of
Borrowing under the Liquidity Agreement.
(d) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the
Class B Cash Collateral Account and apply the same in accordance with
the terms of Section 3.6(c) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Downgrade Advance as requested by this Notice
of Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity 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 _______ day of ___________________, ______.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Subordination Agent, as Borrower
By:_______________________________________
Name:
Title:
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Non-Extension Advance Notice of Borrowing]
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 ABN AMRO BANK N.V., Chicago
Branch (the "LIQUIDITY PROVIDER"), with reference to the Revolving Credit
Agreement (1997-3B) dated as of September 25, 1997, between the Borrower and the
Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined or referenced),
that:
(a) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(b) 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 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 _________________, ____.
(c) 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 B
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 B
Certificates, or principal of, or interest or premium on, the Class A
Certificates or the Class C Certificates, (iii) was computed in
accordance with the provisions of the Class B Certificates, the Class
B Trust Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), and (iv) has not been
and is not the subject of a prior or contemporaneous Notice of
Borrowing.
(d) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the
Class B Cash Collateral Account and apply the same in accordance with
the terms of Section 3.6(i) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
(e) 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].
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:
___________________
Bracketed language is optional.
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Final Advance Notice of Borrowing]
Annex V to
Revolving Credit Agreement
NOTICE OF TERMINATION
[Date]
Wilmington Trust Company,
as Subordination Agent, as Borrower
▇▇▇▇▇▇ Square North
North Market Square
Wilmington, DE 19890-0001
Attention: Corporate Trust Administration
Revolving Credit Agreement dated as of September 25, 1997, between
Wilmington Trust Company, as Subordination Agent, as agent and trustee for the
Continental Airlines Pass Through Trust, 1997-3B, as Borrower, and ABN AMRO BANK
N.V., Chicago Branch (the "Liquidity Agreement")
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.1 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.
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.
ABN AMRO BANK N.V., Chicago Branch, as
Liquidity Provider
By:_______________________________________
Name:
Title:
By:_______________________________________
Name:
Title:
cc: Wilmington Trust Company,
as Class A Trustee
Annex VI to
Revolving Credit Agreement
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement dated as of September 25, 1997, between
Wilmington Trust Company, as Subordination Agent, as agent and trustee for the
Continental Airlines Pass Through Trust, 1997-3B, as Borrower, and ABN AMRO BANK
N.V., Chicago Branch (the "Liquidity Agreement")
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
(Name of Transferee)
(Name 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.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: