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EXHIBIT 4.12
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REVOLVING CREDIT AGREEMENT
(1997-1B)
Dated as of March 21, 1997
between
WILMINGTON TRUST COMPANY,
as Subordination Agent,
as agent and trustee for the
Continental Airlines Pass Through Trust 1997-1B-O
as Borrower
and
ING Bank N.V.
as Liquidity Provider
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Relating to
Continental Airlines Pass Through Trust 1997-1B-O
7.461% Continental Airlines Pass Through Certificates,
Series 1997-1B-O
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . 1
Section 1.01. Certain Defined Terms . . . . . . . . . . . . 1
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENT . . . . . . . . 9
Section 2.01. The Advances . . . . . . . . . . . . . . . . 9
Section 2.02. Making the Advances . . . . . . . . . . . . . 9
Section 2.03. Fees . . . . . . . . . . . . . . . . . . . . 12
Section 2.04. Adjustments or Termination of the Maximum
Commitment . . . . . . . . . . . . . . . . 12
Section 2.05. Repayments of Interest Advances or the Final
Advance . . . . . . . . . . . . . . . . . . 12
Section 2.06. Repayments of Provider Advances . . . . . . . 13
Section 2.07. Payments to the Liquidity Provider Under the
Intercreditor Agreement . . . . . . . . . . . 14
Section 2.08. Book Entries . . . . . . . . . . . . . . . . 15
Section 2.09. Payments from Available Funds Only . . . . . 15
Section 2.10. Extension of the Expiry Date; Non-Extension
Advance . . . . . . . . . . . . . . . . . . 15
ARTICLE III OBLIGATIONS OF THE BORROWER . . . . . . . . . . . . 16
Section 3.01. Increased Costs . . . . . . . . . . . . . . . 16
Section 3.02. Capital Adequacy . . . . . . . . . . . . . . 17
Section 3.03. Payments Free of Deductions . . . . . . . . . 18
Section 3.04. Payments . . . . . . . . . . . . . . . . . . 19
Section 3.05. Computations . . . . . . . . . . . . . . . . 19
Section 3.06. Payment on Non-Business Days . . . . . . . . 20
Section 3.07. Interest . . . . . . . . . . . . . . . . . . 20
Section 3.08. Replacement of Borrower . . . . . . . . . . . 22
Section 3.09. Funding Loss Indemnification . . . . . . . . 22
Section 3.10. Illegality . . . . . . . . . . . . . . . . . 22
ARTICLE IV CONDITIONS PRECEDENT . . . . . . . . . . . . . . . 23
Section 4.01. Conditions Precedent to Effectiveness
of Section 2.01 . . . . . . . . . . . . . . 23
Section 4.02. Conditions Precedent to Borrowing . . . . . . 26
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TABLE OF CONTENTS
(CONTINUED)
Page
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ARTICLE V COVENANTS . . . . . . . . . . . . . . . . . . . . 25
Section 5.01. Affirmative Covenants of the Borrower . . . 25
Section 5.02. Negative Covenants of the Borrower . . . . 26
ARTICLE VI LIQUIDITY EVENTS OF DEFAULT . . . . . . . . . . . 26
Section 6.01. Liquidity Events of Default . . . . . . . . 26
ARTICLE VII MISCELLANEOUS . . . . . . . . . . . . . . . . . . 27
Section 7.01. Amendments, Etc. . . . . . . . . . . . . . 27
Section 7.02. Notices, Etc. . . . . . . . . . . . . . . . 27
Section 7.03. No Waiver; Remedies . . . . . . . . . . . . 28
Section 7.04. Further Assurances . . . . . . . . . . . . 28
Section 7.05. Indemnification; Survival of
Certain Provisions. . . . . . . . . . . . 29
Section 7.06. Liability of the Liquidity Provider . . . . 29
Section 7.07. Costs, Expenses and Taxes . . . . . . . . . 30
Section 7.08. Binding Effect; Participations . . . . . . 31
Section 7.09. Severability . . . . . . . . . . . . . . . 33
Section 7.10. GOVERNING LAW . . . . . . . . . . . . . . . 34
Section 7.11. Submission to Jurisdiction; Waiver
of Jury Trial; Waiver of Immunity. . . . . 34
Section 7.12. Execution in Counterparts . . . . . . . . . 36
Section 7.13. Entirety . . . . . . . . . . . . . . . . . 36
Section 7.14. Headings . . . . . . . . . . . . . . . . . 36
Section 7.15. Transfer . . . . . . . . . . . . . . . . . 36
Section 7.16. LIQUIDITY PROVIDER'S OBLIGATION
TO MAKE ADVANCES . . . . . . . . . . . . 36
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
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REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT dated as of MarchE21, 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 ING BANK N.V., a bank organized under the laws of
The Netherlands ("ING" 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 1.01), the Class B Trust is issuing the Class B
Certificates; and
WHEREAS, the Borrower, in order to support the timely payment
of a portion of the interest on the Class B Certificates in accordance with
their terms, has requested the Liquidity Provider to enter into this Agreement,
providing in part for the Borrower to request in specified circumstances that
Advances be made hereunder.
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. (a) Definitions. As
used in this Agreement and unless otherwise expressly indicated, or unless the
context clearly requires otherwise, the following capitalized terms shall have
the following respective meanings for all purposes of this Agreement:
"Additional Cost" has the meaning assigned to such term in
Section 3.01.
"Advance" means an Interest Advance, a Final Advance, a
Provider Advance, an Applied Provider Advance or an Unpaid Advance, as
the case may be.
"Applicable Liquidity Rate" has the meaning assigned to such
term in Section 3.07(g).
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"Applicable Margin" means (w) with respect to any Unpaid
Advance or Applied Provider Advance that is a LIBOR Advance, 1.75%,
(x) with respect to any Unpaid Advance or Applied Provider Advance
that is a Base Rate Advance, 1.75%, (y) with respect to any Unapplied
Provider Advance that is a LIBOR Advance, .40% and (z) with respect to
any Unapplied Provider Advance that is a Base Rate Advance, .40%.
"Applied Downgrade Advance" has the meaning assigned to such
term in Section 2.06(a).
"Applied Non-Extension Advance" has the meaning assigned to
such term in Section 2.06(a).
"Applied Provider Advance" has the meaning assigned to such
term in Section 2.06(a).
"Assignment and Assumption Agreement" means the Assignment and
Assumption to be entered into between the Borrower and the trustee of
the Successor Trust, substantially in the form of Exhibit D to the
Class B Trust Agreement.
"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 or 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.
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"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, Amsterdam, The Netherlands 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.
"Certificates of Deposit" has the meaning assigned to such
term in the Deposit Agreement.
"Deposits" has the meaning assigned to such terms in the
Deposit Agreement.
"Depositary" has the meaning assigned to such term in the
Deposit Agreement.
"Deposit Agreement" means the Deposit Agreement dated March
21, 1997 between First Security Bank, National Association, as Escrow
Agent and Credit Suisse First Boston, as Depositary, pertaining to the
Class B Certificates, as the same may be amended, modified or
supplemented from time to time in accordance with the terms thereof.
"Downgrade Advance" means an Advance made pursuant to Section
2.02(c).
"Effective Date" has the meaning specified in Section 4.01.
The delivery of the certificate of the Liquidity Provider contemplated
by Section 4.01(e) shall be conclusive evidence that the Effective
Date has occurred.
"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.
"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.
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"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.
"Expiry Date" means March 19, 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
2.02(d).
"Intercreditor Agreement" means the Intercreditor Agreement
dated the date hereof, among the Trustees, the Liquidity Provider, the
liquidity provider under each Liquidity Facility (other than this
Agreement) and the Subordination Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance
with its terms.
"Interest Advance" means an Advance made pursuant to Section
2.02(a).
"Interest Period" means, with respect to any LIBOR Advance,
each of the following periods:
(i) the period beginning on the third Business Day
following the Liquidity Provider's receipt of the
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Notice of Borrowing for such LIBOR Advance (or, in
the case of an Unapplied Downgrade Advance, the
period beginning on the Expiry Date) and ending on
the next Regular Distribution Date; and
(ii) each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending
on the next Regular Distribution Date;
provided, however, that(I) if an Unapplied Provider Advance which is a
LIBOR Advance becomes an Applied Provider Advance, the Interest Period
then applicable to such Unapplied Provider Advance shall be applicable
to such Applied Provider Advance and (II) 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 Amsterdam, The Netherlands, 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 3.01, 3.02 or 3.03 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.
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"Liquidity Event of Default" means the occurrence of either
(a) the acceleration of all of the Equipment Notes (provided that,
with respect to the period prior to the Delivery Period Expiry Date,
such Equipment Notes have an aggregate outstanding principal balance
in excess of $280,000,000) 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 2.02(a), at any
time of determination, (a) the Maximum Commitment at such time less
(b) the aggregate amount of each Interest Advance outstanding at such
time; provided that following a Provider Advance or a Final Advance,
the Maximum Available Commitment shall be zero.
"Maximum Commitment" means, for any day, the lesser of (x)
$9,020,603.58 and (y) the Stated Portion of the Required Amount on
such day.
"Non-Extension Advance" means an Advance made pursuant to
Section 2.02(b).
"Notice of Borrowing" has the meaning specified in Section
2.02(e).
"Notice of Replacement Subordination Agent" has the meaning
specified in Section 3.08.
"Offering Memorandum" means the Offering Memorandum dated
March 12, 1997 relating to the Certificates, as such Offering
Memorandum may be amended or supplemented.
"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.
"Provider Advance" means a Downgrade Advance or a
Non-Extension Advance.
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"Regulatory Change" has the meaning assigned to such term in
Section 3.01.
"Replenishment Amount" has the meaning assigned to such term
in Section 2.06(b).
"Required Amount" means, for any day, the sum of the aggregate
amount of interest, calculated at the rate per annum equal to the
Stated Interest Rate for the Class B Certificates, that would be
payable on the Class B Certificates on each of the three successive
semiannual Regular Distribution Dates immediately following such day
or, if such day is a Regular Distribution Date, on such day and the
succeeding two semiannual Regular Distribution Dates, in each case
calculated on the basis of the Pool Balance of the Class B
Certificates on such day and without regard to expected future
payments of principal on the Class B Certificates.
"Stated Portion" means 50%.
"Successor Trust" means Continental Airlines Pass Through
Trust 1997-1B-S.
"Tax Letter" means the letter dated the date hereof between
the Liquidity Provider and Continental 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 6.01 hereof; and (v) the date on which no
Advance is or may
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(including by reason of reinstatement as herein provided) become
available for a Borrowing hereunder.
"Termination Notice" means the Notice of Termination
substantially in the form of Annex V to this Agreement.
"Transferee" has the meaning assigned to such term in Section
7.08(b).
"Unapplied Downgrade Advance" means any Downgrade Advance
other than an Applied Downgrade Advance.
"Unapplied Provider Advance" means any Provider Advance other
than an Applied Provider Advance.
"Unpaid Advance" has the meaning assigned to such term in
Section 2.05.
(b) Terms Defined in the Intercreditor Agreement. For all
purposes of this Agreement, the following terms shall have the respective
meanings assigned to such terms in the Intercreditor Agreement:
"Certificates", "Class A Certificates","Class B Cash Collateral
Account", "Class B Certificates", "Class B Certificateholders", "Class
B Trust", "Class B Trust Agreement", "Class B Trustee", "Class C-I
Certificates", "Class C-II Certificates", "Closing Date",
"Continental", "Continental Bankruptcy Event", "Controlling Party",
"Corporate Trust Office", "Delivery Period Expiry Date", "Distribution
Date", "Downgraded Facility", "Equipment Notes", "Financing
Agreement", "Indenture", "ING Fee Letter", "ING Sub-Account", "Initial
Purchasers", "Investment Earnings", "Liquidity Facility", "Loan
Trustee", "▇▇▇▇▇'▇", "Non-Extended Facility", "Note Purchase
Agreement", "Operative Agreements", "Performing Equipment Note",
"Person", "Pool Balance", "Purchase Agreement", "Rating Agency",
"Registration Rights Agreement", "Regular Distribution Date,
"Replacement Liquidity Facility", "Responsible Officer", "Scheduled
Payment", "Special Payment", "Standard & Poor's", "Stated Interest
Rate", "Sub-Account", "Subordination Agent", "Taxes", "Threshold
Rating", "Transfer", "Trust Agreements, "Trustee" and "Written
Notice".
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(c) Interest on Certificates. For all purposes of this
Agreement, each scheduled payment with respect to a Class B Certificate shall
be deemed to be comprised of interest and principal components, with the
interest component equalling interest accrued at the Stated Interest Rate for
the Class B Certificates from (i) the later of (x) the date of issuance thereof
and (y) the most recent but preceding Regular Distribution Date to (ii) the
Regular Distribution Date on which such Scheduled Payment is being made, such
interest to be considered payable in arrears on such Regular Distribution Date
and to be calculated and allocated in the same manner as interest on the Class
B Equipment Notes.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances. The Liquidity Provider hereby
irrevocably agrees, on the terms and conditions hereinafter set forth, to make
Advances to the Borrower from time to time on any Business Day during the
period from the Effective Date until 12:00 Noon (New York City time) on the
Expiry Date (unless the obligations of the Liquidity Provider shall be earlier
terminated in accordance with the terms of Section 2.04(b)) in an aggregate
amount at any time outstanding not to exceed the Maximum Commitment.
Section 2.02. Making the Advances. (a) Interest Advances
shall be made in one or more Borrowings by delivery to the Liquidity Provider
of one or more written and completed Notices of Borrowing in substantially the
form of Annex I attached hereto, signed by a Responsible Officer of the
Borrower, in an amount not exceeding the Maximum Available Commitment at such
time and shall be used solely for the payment when due of the Stated Portion of
interest on the Class B Certificates at the Stated Interest Rate therefor in
accordance with Section 3.6(a) of the Intercreditor Agreement. Each Interest
Advance made hereunder shall automatically reduce the 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
2.02(a), together with accrued interest thereon (as provided herein), the
Maximum Available Commitment shall be reinstated by the amount of such repaid
Interest Advance, but not to exceed the Maximum
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Commitment; provided, however, that the Maximum Available Commitment shall not
be so reinstated at any time if (i) a Liquidity Event of Default shall have
occurred and be continuing and (ii) there is a Performing Note Deficiency.
(b) A Non-Extension Advance shall be made in a single
Borrowing if this Agreement is not extended in accordance with Section 3.6(d)
of the Intercreditor Agreement (unless a Replacement Liquidity Facility to
replace this Agreement shall have been delivered to the Borrower 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 ING Sub-Account of the Class B Cash Collateral Account in accordance
with said Section 3.6(d).
(c) 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
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 ING Sub-Account of the Class B Cash
Collateral Account in accordance with said Section 3.6(c).
(d) A Final Advance shall be made in a single Borrowing
upon the receipt by the Borrower of a Termination Notice from the Liquidity
Provider pursuant to Section 6.01 hereof by delivery to the Liquidity Provider
of a written and completed Notice of Borrowing in substantially the form of
Annex IV attached hereto, signed by a Responsible Officer of the Borrower, in
an amount equal to the Maximum Available Commitment at such time, and shall be
used to fund the ING Sub-Account of the Class B Cash Collateral Account (in
accordance with Section 3.6(i) of the Intercreditor Agreement).
(e) Each Borrowing shall be made on notice in writing (a
"Notice of Borrowing") in substantially the form required by Section 2.02(a),
2.02(b), 2.02(c) or 2.02(d), as the case may be,
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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 4.02 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 4.02
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.
(f) Upon the making of any Advance requested pursuant to
a Notice of Borrowing, in accordance with the Borrower's payment instructions,
the Liquidity Provider shall be fully discharged of its obligation hereunder
with respect to such Notice of Borrowing, and the Liquidity Provider shall not
thereafter be obligated to make any further Advances hereunder in respect of
such Notice of Borrowing to the Borrower or to any other Person. Following the
making of any Advance pursuant to Section 2.02(b), (c) or (d) hereof to fund
the ING Sub-Account of the Class B Cash Collateral Account, the Liquidity
Provider shall have no interest in or rights to the Class B Cash Collateral
Account, any Sub- Account thereof, such Advance or any other amounts from time
to time on deposit in the Class B Cash Collateral Account or any Sub-Account
thereof; 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
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to the Borrower proceeds of Advances requested by the Borrower in accordance
with the provisions of this Agreement, the Liquidity Provider makes no
representation as to, and assumes no responsibility for, the correctness or
sufficiency for any purpose of the amount of the Advances so made and
requested.
Section 2.03. Fees. The Borrower agrees to pay to the
Liquidity Provider the fees set forth in the ING Fee Letter.
Section 2.04. Adjustments or Termination of the Maximum
Commitment. (a) Automatic Adjustments. Promptly following each date on which
the Required Amount is (1) reduced as a result of a reduction in the Pool
Balance of the Class B Certificates or otherwise, (2) increased as a result of
an increase in the Stated Interest Rate or (3) subsequent to such an increase
described in clause (2), reduced pursuant to the definition of "Stated Interest
Rate", clause (y) of the definition of Maximum Commitment shall automatically
be reduced or increased, as the case may be, to an amount equal to the Stated
Portion of the Required Amount (as calculated by the Borrower). The Borrower
shall give notice of any such automatic reduction or increase of the Maximum
Commitment to the Liquidity Provider within two Business Days thereof. The
failure by the Borrower to furnish any such notice shall not affect such
automatic reduction or increase of the Maximum Commitment.
(b) Termination. Upon the making of any Provider Advance
or Final Advance hereunder or the occurrence of the Termination Date, the
obligation of the Liquidity Provider to make further Advances hereunder shall
automatically and irrevocably terminate, and the Borrower shall not be entitled
to request any further Borrowing hereunder.
Section 2.05. Repayments of Interest Advances or the Final
Advance. Subject to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby
agrees, without notice of an Advance or demand for repayment from the Liquidity
Provider (which notice and demand are hereby waived by the Borrower), to pay,
or to cause to be paid, to the Liquidity Provider on each date on which the
Liquidity Provider shall make an Interest Advance or the Final Advance, an
amount equal to (a) the amount of such Advance (any such Advance, until repaid,
is referred to herein as an "Unpaid Advance"), plus (b) interest on the amount
of each such Unpaid Advance as provided in Section 3.07 hereof; provided that
if (i) the Liquidity Provider shall make a Provider Advance at any time after
making one or more Interest Advances which shall
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not have been repaid in accordance with this Section 2.05 or (ii) this
Liquidity Facility shall become a Downgraded Facility or Non-Extended Facility
at any time when unreimbursed Interest Advances have reduced the Maximum
Available Commitment to zero, then such Interest Advances shall cease to
constitute Unpaid Advances and shall be deemed to have been changed into an
Applied Downgrade Advance or an Applied Non-Extension Advance, as the case may
be, for all purposes of this Agreement (including, without limitation, for the
purpose of determining when such Interest Advance is required to be repaid to
the Liquidity Provider in accordance with Section 2.06 and for the purposes of
Section 2.06(b)). The Borrower and the Liquidity Provider agree that the
repayment in full of each Interest Advance and Final Advance on the date such
Advance is made is intended to be a contemporaneous exchange for new value
given to the Borrower by the Liquidity Provider.
Section 2.06. Repayments of Provider Advances. (a) Amounts
advanced hereunder in respect of a Provider Advance shall be deposited in the
ING Sub-Account of the Class B Cash Collateral Account, invested and withdrawn
from the ING Sub-Account of 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 3.07; provided, however, that amounts in respect of a
Provider Advance withdrawn from the ING Sub-Account of 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 2.06(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 6.01 hereof, such Provider Advance shall thereafter be
treated as a Final Advance under this Agreement for purposes of determining the
Applicable Liquidity Rate for interest payable thereon. Subject to Sections
2.07 and
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2.09 hereof, immediately upon the withdrawal of any amounts from the ING
Sub-Account of 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 Stated
Portion of such reduction, plus interest on the principal amount prepaid as
provided in Section 3.07 hereof.
(b) At any time when an Applied Provider Advance (or any
portion thereof) is outstanding, upon the deposit in the ING Sub-Account of 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 Stated
Portion of the Required Amount at such time, (i) the aggregate outstanding
principal amount of all Applied Provider Advances (and of Provider Advances
treated as an Interest Advance for purposes of determining the Applicable
Liquidity Rate for interest payable thereon) shall be automatically reduced by
the amount of such Replenishment Amount and (ii) the aggregate outstanding
principal amount of all Unapplied Provider Advances shall be automatically
increased by the amount of such Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity
Facility in replacement of this Agreement in accordance with Section 3.6(e) of
the Intercreditor Agreement, amounts remaining on deposit in the ING
Sub-Account of 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 2.07. Payments to the Liquidity Provider Under the
Intercreditor Agreement. In order to provide for payment or repayment to the
Liquidity Provider of any amounts hereunder, the Intercreditor Agreement
provides that amounts available and referred to in Articles II and III of the
Intercreditor Agreement, to the extent payable to the Liquidity Provider
pursuant to the terms of the Intercreditor Agreement (including, without
limitation, Section 3.6(f) of the Intercreditor Agreement), shall be paid to
the Liquidity Provider in accordance with the terms thereof. Amounts so paid to
the Liquidity
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Provider shall be applied by the Liquidity Provider to Liquidity Obligations
then due and payable in such manner as it shall deem appropriate.
Section 2.08. Book Entries. The Liquidity Provider shall
maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower resulting from Advances made from
time to time and the amounts of principal and interest payable hereunder and
paid from time to time in respect thereof; provided, however, that the failure
by the Liquidity Provider to maintain such account or accounts shall not affect
the obligations of the Borrower in respect of Advances.
Section 2.09. Payments from Available Funds Only. All
payments to be made by the Borrower under this Agreement shall be made only
from the Stated Portion of amounts that constitute Scheduled Payments, Special
Payments or payments under Section 9.1 of the Participation Agreements and
Sections 6 and 7 of the Note Purchase Agreement and only to the extent that the
Borrower shall have sufficient income or proceeds therefrom to enable the
Borrower to make payments in accordance with the terms hereof after giving
effect to the priority of payments provisions set forth in the 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 ING Sub-Account of 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. Amounts on deposit in the other Sub-Account in respect
of the Class B Certificates shall not be available to make payments under this
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
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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 2.02(b)
hereof and Section 3.6(d) of the Intercreditor Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs. Subject to the ING 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
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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 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 3.01 as promptly as
practicable after it obtains knowledge thereof and determines to request such
compensation, which notice shall describe in reasonable detail the calculation
of the amounts owed under this Section. Determinations by the Liquidity
Provider for purposes of this Section 3.01 of the effect of any Regulatory
Change on its costs of making or maintaining Advances or on amounts receivable
by it in respect of Advances, and of the additional amounts required to
compensate the Liquidity Provider in respect of any Additional Costs, shall be
prima facie evidence of the amount owed under this Section.
Section 3.02. Capital Adequacy. Subject to the ING 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
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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 3.02 as promptly as
practicable after it obtains knowledge thereof and determines to request such
compensation, which notice shall describe in reasonable detail the calculation
of the amounts owed under this Section. Determinations by the Liquidity
Provider for purposes of this Section 3.02 of the effect of any increase in the
amount of capital required to be maintained by the 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 3.03. Payments Free of Deductions. (a) All payments
made by the Borrower under this Agreement shall be made free and clear of, and
without reduction for or on account of, any 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
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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.
(b) All payments (including, without limitation,
Advances) made by the Liquidity Provider under this Agreement shall be made
free and clear of, and without reduction for or on account of, any Taxes. If
any Taxes are required to be withheld or deducted from any amounts payable to
the Borrower under this Agreement, the Liquidity Provider shall (i) within the
time prescribed therefor by applicable law pay to the appropriate governmental
or taxing authority the full amount of any such Taxes (and any additional Taxes
in respect of the payment required under clause (ii) hereof) and make such
reports or returns in connection therewith at the time or times and in the
manner prescribed by applicable law, and (ii) pay to the Borrower an additional
amount which (after deduction of all such Taxes) will be sufficient to yield to
the Borrower the full amount which would have been received by it had no such
withholding or deduction been made. Within 30 days after the date of each
payment hereunder, the Liquidity Provider shall furnish to the Borrower the
original or a certified copy of (or other documentary evidence of) the payment
of the Taxes applicable to such payment.
Section 3.04. Payments. The Borrower shall make or cause to
be made each payment to the Liquidity Provider under this Agreement so as to
cause the same to be received by the Liquidity Provider not later than 1:00
P.M. (New York City time) on the day when due. The Borrower shall make all
such payments in lawful money of the United States of America, to the Liquidity
Provider in immediately available funds, by wire transfer to Northern Trust
Company of New York, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Account No. 105981-20010, Account Name: ING Lease (Ireland) B.V., as
agent for ING Bank N.V.
Section 3.05. Computations. All computations of interest
based on the Base Rate shall be made on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the LIBOR Rate
shall be made on the basis of a year of 360 days, in each case for the actual
number of days
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(including the first day but excluding the last day) occurring in the period
for which such interest is payable.
Section 3.06. Payment on Non-Business Days. Whenever any
payment to be made hereunder shall be stated to be due on a day other than a
Business Day, such payment shall be made on the next succeeding Business Day
and no additional interest shall be due as a result (and if so made, shall be
deemed to have been made when due). If any payment in respect of interest on an
Advance is so deferred to the next succeeding Business Day, such deferral shall
not delay the commencement of the next Interest Period for such Advance (if
such Advance is a LIBOR Advance) or reduce the number of days for which
interest will be payable on such Advance on the next interest payment date for
such Advance.
Section 3.07. Interest. (a) Subject to Section 2.09, the
Borrower shall pay, or shall cause to be paid, without duplication, interest on
(i) the unpaid principal amount of each Advance from and including the date of
such Advance (or, in the case of an Applied Provider Advance, from and
including the date on which the amount thereof was withdrawn from the ING
Sub-Account of 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
ING Sub-Account of 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 3.07 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 3.07 below the
maximum rate permitted by applicable law until the total amount of interest
accrued equals the amount of interest that would have accrued if such otherwise
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applicable interest rate as set forth in this Section 3.07 had at all times
been in effect.
(b) 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 such 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) may 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.
(c) 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).
(d) Each Base Rate Advance shall bear interest at a rate
per annum equal to the Base Rate plus the Applicable Margin for such Base Rate
Advance, payable in arrears on each Regular Distribution Date and, in the event
of the payment of principal of such Base Rate Advance on a day other than a
Regular Distribution Date, on the date of such payment (to the extent of
interest accrued on the amount of principal repaid).
(e) Each Unapplied Downgrade Advance (i) during the
period from and including the date of the making of such Unapplied Downgrade
Advance through but excluding the Expiry Date (or, if earlier, the date of
repayment thereof or of conversion thereof into a Final Advance), shall bear
interest in an amount equal to the Investment Earnings on amounts on deposit in
the ING Sub-Account of the Class B Cash Collateral Account for such period plus
.35% per annum on the amount of such Unapplied Downgrade Advance from time to
time during such period, payable in arrears on each Regular Distribution Date
and (ii) thereafter, shall be a LIBOR Advance and shall bear interest in
accordance with clause (c) above.
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(f) Each amount not paid when due hereunder (whether
fees, commissions, expenses or other amounts or, to the extent permitted by
applicable law, installments of interest on Advances but excluding Advances)
shall bear interest at a rate per annum equal to the Base Rate plus 2.00% until
paid.
(g) Each change in the Base Rate shall become effective
immediately. The rates of interest specified in this Section 3.07 with respect
to any Advance or other amount shall be referred to as the "Applicable
Liquidity Rate".
Section 3.08. Replacement of Borrower. 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 3.09. Funding Loss Indemnification. The Borrower
shall pay to the Liquidity Provider, upon the request of the Liquidity
Provider, such amount or amounts as shall be sufficient (in the reasonable
opinion of the Liquidity Provider) to compensate it for any loss, cost, or
expense incurred by reason of the liquidation or redeployment of deposits or
other funds acquired by the Liquidity Provider to fund or maintain any LIBOR
Advance (but excluding loss of anticipated profits) incurred as a result of:
(1) Any repayment of a LIBOR Advance on a date other than
the last day of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance
on the date for borrowing specified in the relevant notice under
Section 2.02.
Section 3.10. Illegality. Notwithstanding any other
provision in this Agreement, if any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or
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administration thereof, or compliance by the Liquidity Provider (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for the Liquidity Provider (or its Lending Office) to maintain or
fund its LIBOR Advances, then upon notice to the Borrower by the Liquidity
Provider, the outstanding principal amount of the LIBOR Advances shall be
converted to Base Rate Advances (a) immediately upon demand of the Liquidity
Provider, if such change or compliance with such request, in the judgment of
the Liquidity Provider, requires immediate repayment; or (b) at the expiration
of the last Interest Period to expire before the effective date of any such
change or request.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of
Section 2.01. Section 2.01 of this Agreement shall become effective on and as
of the first date (the "Effective Date") on which the following conditions
precedent have been satisfied or waived:
(a) The Liquidity Provider shall have received on
or before the Closing Date each of the following, 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 Offering Memorandum
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
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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 Initial Purchasers, a letter from the counsel
rendering such opinion to the effect that the
Liquidity Provider is entitled to rely on such
opinion as 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 (related to
Leased Aircraft) or the corresponding section of the
Indentures (related to Owned Aircraft) 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.
(b) The following statement shall be true on and as of
the Effective Date: No event has occurred and is continuing,
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or would result from the entering into of this Agreement or the making
of any Advance, which constitutes a Liquidity Event of Default.
(c) The Liquidity Provider shall have received payment in
full of all fees and other sums required to be paid to or for the
account of the Liquidity Provider on or prior to the Effective Date.
(d) All conditions precedent to the issuance of the
Certificates under the Trust Agreements shall have been satisfied, all
conditions precedent to the effectiveness of the other Liquidity
Facilities shall have been satisfied, and all conditions precedent to
the purchase of the Certificates by the Initial Purchasers under the
Purchase Agreement shall have been satisfied (unless any of such
conditions precedent shall have been waived by the Initial
Purchasers).
(e) The Borrower shall have received a certificate, dated
the date hereof, signed by a duly authorized representative of the
Liquidity Provider, certifying that all conditions precedent to the
effectiveness of Section 2.01 have been satisfied or waived.
Section 4.02. Conditions Precedent to Borrowing. The
obligation of the Liquidity Provider to make an Advance on the occasion of each
Borrowing shall be subject to the conditions precedent that the Effective Date
shall have occurred and, prior to the date of such Borrowing, the Borrower
shall have delivered a Notice of Borrowing which conforms to the terms and
conditions of this Agreement and has been completed as may be required by the
relevant form of the Notice of Borrowing for the type of Advances requested.
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower. So
long as any Advance shall remain unpaid or the Liquidity Provider shall have
any Maximum Commitment hereunder or the Borrower shall have any obligation to
pay any amount to the Liquidity Provider hereunder, the Borrower will, unless
the Liquidity Provider shall otherwise consent in writing:
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(a) Performance of This and Other Agreements. Punctually
pay or cause to be paid all amounts payable by it under this Agreement
and the other Operative Agreements and observe and perform in all
material respects the conditions, covenants and requirements
applicable to it contained in this Agreement and the other Operative
Agreements.
(b) Reporting Requirements. Furnish to the Liquidity
Provider with reasonable promptness, such other information and data
with respect to the transactions contemplated by the Operative
Agreements as from time to time may be reasonably requested by the
Liquidity Provider; and permit the Liquidity Provider, upon reasonable
notice, to inspect the Borrower's books and records with respect to
such transactions and to meet with officers and employees of the
Borrower to discuss such transactions.
(c) Certain Operative Agreements. Furnish to the
Liquidity Provider with reasonable promptness, such Operative
Agreements entered into after the date hereof as from time to time may
be reasonably requested by the Liquidity Provider.
Section 5.02. Negative Covenants of the Borrower. So long
as any Advance shall remain unpaid or the Liquidity Provider shall have any
Maximum Commitment hereunder or the Borrower shall have any obligation to pay
any amount to the Liquidity Provider hereunder, the Borrower 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 6.01. Liquidity Events of Default. If (a) any
Liquidity Event of Default has occurred and is continuing and (b) there is a
Performing Note Deficiency, the Liquidity Provider may, in its discretion,
deliver to the Borrower a Termination Notice, the effect of which shall be to
cause (i) this Agreement to expire on the fifth Business Day after the date on
which such Termination Notice is received by the Borrower, (ii) the Borrower to
promptly request, and the Liquidity Provider to promptly make, a Final Advance
in accordance with Section 2.02(d) hereof and Section 3.6(i) of the
Intercreditor Agreement, (iii) all other
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27
outstanding Advances to be automatically converted into Final Advances for
purposes of determining the Applicable Liquidity Rate for interest payable
thereon, and (iv) subject to Sections 2.07 and 2.09 hereof, all Advances
(including, 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 7.01. Amendments, Etc. No amendment or waiver of
any provision of this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Liquidity Provider, and, in the case of an amendment 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 7.02. 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: ING Bank N.V.
Department of Bankgarantie Zaken -
Juridische Zaken
Location code HG 01.06
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇
by courier:
Amsterdamse Poort
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▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇-▇▇-▇▇▇-▇▇▇▇
Telecopy: 011-31-20-652-3235
with a copy to:
ING Lease (Ireland) B.V.
▇▇ ▇▇. ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇-▇▇▇-▇▇▇▇
Telecopy: 011-353-1-662-2240
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 7.03. No Waiver; Remedies. No failure on the part
of the Liquidity Provider to exercise, and no delay in exercising, any right
under this Agreement shall operate as a waiver thereof; nor shall any single or
partial exercise of any right under this Agreement preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
Section 7.04. Further Assurances. The Borrower agrees to do
such further acts and things and to execute and deliver to the Liquidity
Provider such additional assignments, agreements, powers and instruments as the
Liquidity Provider may reasonably require or deem advisable to carry into
effect the purposes of this Agreement and the other Operative Agreements or to
better
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assure and confirm unto the Liquidity Provider its rights, powers and remedies
hereunder and under the other Operative Agreements.
Section 7.05. Indemnification; Survival of Certain
Provisions. The Liquidity Provider shall be indemnified hereunder to the extent
and in the manner described in Section 10.1 of the Participation Agreements and
Section 6 of the Note Purchase Agreement. In addition, the Borrower agrees to
indemnify, protect, defend and hold harmless the Liquidity Provider from,
against and in respect of, and shall pay on demand, all Expenses of any kind or
nature whatsoever (other than any Expenses of the nature described in Sections
3.01, 3.02 or 7.07 hereof or in the ING 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 ING 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 (i) to the
extent such Expense is attributable to the gross negligence or willful
misconduct of such Liquidity Indemnitee or any other Liquidity Indemnitee,
(ii)Ethat is ordinary and usual operating overhead expense, and (iii)Eto the
extent such Expense is 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 ING Fee Letter, the Tax Letter or any other
Operative Document to which it is a party. The indemnities contained in such
Section 10.1, and the provisions of Sections 3.01, 3.02, 3.03, 3.09, 7.05 and
7.07 hereof, shall survive the termination of this Agreement.
Section 7.06. Liability of the Liquidity Provider. (a)
Neither the Liquidity Provider nor any of its officers, employees, directors or
affiliates shall be liable or responsible for: (i) the use which may be made of
the Advances or any acts or omissions of the Borrower or any beneficiary or
transferee in connection therewith; (ii) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient, fraudulent or
forged; or (iii) the making of
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30
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.
(b) 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 7.07. Costs, Expenses and Taxes. The Borrower
agrees to pay, or cause to be paid (A) on the Effective Date and on such later
date or dates on which the Liquidity Provider shall make demand, all reasonable
out-of- pocket costs and expenses (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,
34
31
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 7.08. Binding Effect; Participations. (a)EEThis
Agreement shall be binding upon and inure to the benefit of the Borrower and
the Liquidity Provider and their respective successors and assigns, except that
neither the Liquidity Provider (except as otherwise provided in this Section
7.08) nor (except as contemplated by Section 3.08) 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 7.08(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 7.08(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 3.03(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
35
32
Provider, rather than the participant, had held the interest participated).
(b) 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
transfer, 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.
(c) Notwithstanding the other provisions of this Section
7.08, the Liquidity Provider may assign and pledge all or any portion of the
Advances owing to it to any Federal Reserve Bank or the United States Treasury
as collateral security pursuant to Regulation A of the Board of Governors of
the Federal Reserve System and any Operating Circular issued by such Federal
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33
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.
(d) Notwithstanding the other provisions of this Section
7.08, if at any time after the date hereof the Borrower shall withhold taxes as
required by law from any payments made to the Liquidity Provider, the Liquidity
Provider may assign all (but not less than all) of its rights and obligations
under this Agreement to the New York Branch of ING Bank N.V. ( the "ING
Transferee"); provided, that it shall be a condition to any such transfer that
(i) the ING Transferee enters into an agreement in form and substance
reasonably satisfactory to the Borrower pursuant to which the ING Transferee
assumes all of the obligations of the Liquidity Provider hereunder, under the
Intercreditor Agreement, the ING Fee Letter and the Tax Letter, (ii) the ING
Transferee delivers an opinion to the Borrower and each of the Rating Agencies
in form and substance reasonably satisfactory to the Borrower opining that this
Agreement, the Intercreditor Agreement, the ING Fee Letter and the Tax Letter
are enforceable obligations of the ING Transferee, (iii) the Liquidity Provider
shall have delivered to the Borrower a Ratings Confirmation with respect to
such transfer from each Rating Agency, (iv) the ING Transferee shall satisfy
each of the requirements in respect of a Transferee set forth in Section
7.08(b) and (v) the Liquidity Provider shall pay all fees and expenses
(including, without limitation, legal fees and disbursements) of the Borrower
in connection with such transfer. Upon the satisfaction of the conditions set
forth in this Section 7.08(d), the ING Transferee shall be deemed to be the
Liquidity Provider with the rights and obligations of the Liquidity Provider
hereunder and under the other Operative Agreements.
Section 7.09. Severability. Any provision of this Agreement
which is prohibited, unenforceable or not authorized in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
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34
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. (a) Each of the parties hereto hereby irrevocably
and unconditionally:
(i) submits for itself and its property in any
legal action or proceeding relating to this Agreement or any
other Operative Agreement, or for recognition and enforcement
of any judgment in respect hereof or thereof, to the
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 and mail), postage prepaid, to each party hereto at its
address set forth in Section 7.02 hereof, or at such other
address of which the Liquidity Provider shall have been
notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the
right to effect service of process in any other manner
permitted by law or shall limit the right to ▇▇▇ in any other
jurisdiction.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY
AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS
BEING ESTABLISHED, including, without limitation, contract claims, tort claims,
breach of duty claims and all other common law and
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35
statutory claims. The Borrower and the Liquidity Provider each warrant and
represent that it has reviewed this waiver with its legal counsel, and that it
knowingly and voluntarily waives its jury trial rights following consultation
with such legal counsel. THIS WAIVER IS IRREVOCABLE, AND CANNOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
(c) The Liquidity Provider hereby waives any immunity it
may have from the jurisdiction of the courts of the United States or of any
State and waives any immunity any of its properties located in the United
States may have from attachment or execution upon a 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 Transfer. The Liquidity Provider hereby
acknowledges and consents to the Transfer contemplated by the Assignment and
Assumption Agreement.
Section 7.16. 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.
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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:
ING BANK N.V.,
as Liquidity Provider
By:
-----------------------------------
Name:
Title:
40
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 ING BANK N.V. (the
"Liquidity Provider"), with reference to the Revolving Credit Agreement
(1997-1B) dated as of March 21, 1997, between the Borrower and the Liquidity
Provider (the "Liquidity Agreement"; the terms defined therein and not
otherwise defined herein being used herein as therein defined or referenced),
that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of an Interest Advance by the Liquidity Provider to be
used, subject to clause (3)(v) below, for the payment of the Stated
Portion of the interest on the ClassEB Certificates which was payable
on ____________, ____ (the "Distribution Date") in accordance with the
terms and provisions of the ClassEB Trust Agreement and the ClassEB
Certificates pursuant to clause fifth of Section 3.2 of the
Intercreditor Agreement or clause seventh of Section 3.3 of the
Intercreditor Agreement, which Advance is requested to be made on
____________, ____.
(3) The amount of the Interest Advance requested hereby
(i) is $_______________.__, to be applied in respect of the payment of
the Stated Portion 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 A Certificates, the Class B Certificates, the Class C-I
Certificates or the Class C-II Certificates, or interest on the Class
A Certificates, the Class C-I Certificates or the Class C-II
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, (v) does not include any amount of
interest which was due and payable on the Class B Certificates on such
Distribution Date but which remains unpaid due to the failure of the
Depositary to pay any amount of accrued interest on the Certificates
of Deposit on such Distribution
41
I-2
Date and (vi) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will apply the same in
accordance with the terms of Section 3.2 or 3.3 of the Intercreditor
Agreement, as the case may be, (b) no portion of such amount shall be
applied by the Borrower for any other purpose and (c) no portion of
such amount until so applied shall be commingled with other funds held
by the Borrower.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, the making of the Interest Advance as requested by this
Notice of Borrowing shall automatically reduce, subject to reinstatement in
accordance with the terms of the Liquidity Agreement, the 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 _________, ____.
WILMINGTON TRUST COMPANY, not in
its individual capacity but solely as
Subordination Agent, as Borrower
By:
-----------------------------------
Name:
Title:
42
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest Advance Notice of
Borrowing]
43
Annex II to
Revolving Credit Agreement
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned subordination agent (the "Borrower"), hereby certifies to ING BANK
N.V. (the "Liquidity Provider"), with reference to the Revolving Credit
Agreement (1997-1B) dated as of March 21, 1997, between the Borrower and the
Liquidity Provider (the "Liquidity Agreement"; the terms defined therein and
not otherwise defined herein being used herein as therein defined or
referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Non-Extension Advance by the Liquidity Provider
to be used for the funding of the ING Sub-Account 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
__________, ____.
(3) The amount of the Non-Extension Advance requested
hereby (i) is $_______________.__, which equals the Maximum Available
Commitment on the date hereof and is to be applied in respect of the
funding of the ING Sub-Account 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, the Class C-I
Certificates or the Class C-II 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.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such amount in
the ING Sub-Account of the Class B Cash Collateral Account and apply
the same in accordance with the terms of Section 3.6(d) of the
Intercreditor Agreement,
44
II-2
(b) no portion of such amount shall be applied by the Borrower for any
other purpose and (c) no portion of such amount until so applied shall
be commingled with other funds held by the Borrower.
(5) The Borrower hereby requests that the Advance
requested hereby be a Base Rate Advance and that such Base Rate
Advance be converted into a LIBOR Advance on the third Business Day
following your receipt of this notice.
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 _________, ____.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Subordination Agent, as Borrower
By:
-----------------------------------
Name:
Title:
45
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Non-Extension Advance Notice of Borrowing]
46
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 ING BANK
N.V. (the "Liquidity Provider"), with reference to the Revolving Credit
Agreement (1997-1B) dated as of March 21, 1997, between the Borrower and the
Liquidity Provider (the "Liquidity Agreement"; the terms defined therein and
not otherwise defined herein being used herein as therein defined or
referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Downgrade Advance by the Liquidity Provider to
be used for the funding of the ING Sub-Account 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 __________, ____.
(3) The amount of the Downgrade Advance requested hereby
(i) is $_______________.__, which equals the Maximum Available
Commitment on the date hereof and is to be applied in respect of the
funding of the ING Sub-Account 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, the Class C-I
Certificates or the Class C-II 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.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such amount in
the ING Sub-Account of the Class B Cash
47
III-2
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.
(5) The Borrower hereby requests that the Advance
requested hereby be a Base Rate Advance and that such Base Rate
Advance be converted into a LIBOR Advance on the third Business Day
following your receipt of this notice.
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)Efollowing the making by the Liquidity Provider of
the Downgrade Advance requested by this Notice of Borrowing, the Borrower shall
not be entitled to request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
WILMINGTON TRUST COMPANY, not in
its individual capacity but solely as
Subordination Agent, as Borrower
By:
-----------------------------------
Name:
Title:
48
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Downgrade Advance Notice of Borrowing]
49
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 ING BANK N.V. (the
"Liquidity Provider"), with reference to the Revolving Credit Agreement
(1997-1B) dated as of March 21, 1997, between the Borrower and the Liquidity
Provider (the "Liquidity Agreement"; the terms defined therein and not
otherwise defined herein being used herein as therein defined or referenced),
that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Final Advance by the Liquidity Provider to be
used for the funding of the ING Sub-Account of the Class B Cash
Collateral Account in accordance with Section 3.6(i) of the
Intercreditor Agreement by reason of the receipt by the Borrower of a
Termination Notice from the Liquidity Provider with respect to the
Liquidity Agreement, which Advance is requested to be made on
____________, ____.
(3) The amount of the Final Advance requested hereby (i)
is $_________________.__, which equals the Maximum Available
Commitment on the date hereof and is to be applied in respect of the
funding of the ING Sub-Account 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, the Class C-I
Certificates or the Class C-II Certificates, (iii) was computed in
accordance with the provisions of the Class B Certificates, the Class
B Trust Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), and (iv) has not been
and is not the subject of a prior or contemporaneous Notice of
Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such amount in
the ING Sub-Account of the Class B Cash Collateral Account and apply
the same in accordance with the
50
IV-2
terms of Section 3.6(i) of the Intercreditor Agreement, (b) no portion
of such amount shall be applied by the Borrower for any other purpose
and (c) no portion of such amount until so applied shall be commingled
with other funds held by the Borrower.
(5) The Borrower hereby requests that the Advance
requested hereby be a Base Rate Advance and that such Base Rate
Advance be converted into a LIBOR Advance on the third Business Day
following your receipt of this notice.
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:
51
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Final Advance Notice of Borrowing]
52
Annex V to
Revolving Credit Agreement
NOTICE OF TERMINATION
[Date]
Wilmington Trust Company,
as Subordination Agent, as Borrower
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Revolving Credit Agreement dated as of March 21, 1997, between Wilmington Trust
Company, as Subordination Agent, as agent and trustee for the Continental
Airlines Pass Through Trust, 1997-1B-[O/S], as Borrower, and ING BANK N.V. (the
"Liquidity Agreement")
_________________________________________________________________
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.01 of the
Liquidity Agreement, by reason of the occurrence of a Liquidity Event of
Default and the existence of a Performing Note Deficiency (each as defined
therein), we are giving this notice to you in order to cause (i) our
obligations to make Advances (as defined therein) under such Liquidity
Agreement to terminate on the fifth Business Day after the date on which you
receive this notice and (ii) you to request a Final Advance under the Liquidity
Agreement pursuant to Section 3.6(i) of the Intercreditor Agreement (as defined
in the Liquidity Agreement) as a consequence of your receipt of this notice.
53
V-2
THIS NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR UNDER
THE LIQUIDITY AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY
AGREEMENT WILL TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU
RECEIVE THIS NOTICE.
Very truly yours,
ING BANK N.V.,
as Liquidity Provider
By:
-----------------------------------
Name:
Title:
cc: Wilmington Trust Company,
as Class B Trustee
54
Annex VI to
Revolving Credit Agreement
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement dated as of March 21, 1997, between Wilmington Trust
Company, as Subordination Agent, as agent and trustee for the Continental
Airlines Pass Through Trust, 1997-1B-[O/S], as Borrower, and ING BANK N.V. (the
"Liquidity Agreement")
_________________________________________________________________
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby
irrevocably transfers to:
----------------------------------
[Name of Transferee]
----------------------------------
[Address of Transferee]
all rights and obligations of the undersigned as Borrower under the Liquidity
Agreement referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the first
paragraph of the Liquidity Agreement, pursuant to the terms of Section 8.1 of
the Intercreditor Agreement.
By this transfer, all rights of the undersigned as Borrower
under the Liquidity Agreement are transferred to the transferee and the
transferee shall hereafter have the sole rights and obligations as Borrower
thereunder. The undersigned shall pay any costs and expenses of such transfer,
including, but not limited to, transfer taxes or governmental charges.
55
VI-2
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: