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EXHIBIT 4.16
_________________________________________________________________
REVOLVING CREDIT AGREEMENT
(1997-1C-II)
Dated as of March 21, 1997
between
WILMINGTON TRUST COMPANY,
as Subordination Agent,
as agent and trustee for the
Continental Airlines Pass Through Trust 1997-1C-II-O
as Borrower
and
ING Bank N.V.
as Liquidity Provider
_________________________________________________________________
Relating to
Continental Airlines Pass Through Trust 1997-1C-II-O
7.42% Continental Airlines Pass Through Certificates,
Series 1997-1C-II-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...................................... 15
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.......... 16
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 ............................................... 20
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 ................................................. 23
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ARTICLE IV
CONDITIONS PRECEDENT ............................................. 23
Section 4.01. Conditions Precedent to
Effectiveness of Section 2.01................................ 23
Section 4.02. Conditions Precedent to Borrowing ........................... 25
ARTICLE V
COVENANTS ...................................................... 26
Section 5.01. Affirmative Covenants of the Borrower ..................... 26
Section 5.02. Negative Covenants of the Borrower ........................ 26
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT .................................... 27
Section 6.01. Liquidity Events of Default ............................... 27
ARTICLE VII
MISCELLANEOUS .................................................. 27
Section 7.01. Amendments, Etc ........................................... 27
Section 7.02. Notices, Etc .............................................. 27
Section 7.03. No Waiver; Remedies ....................................... 29
Section 7.04. Further Assurances ........................................ 29
Section 7.05. Indemnification; Survival of Certain Provisions ........... 29
Section 7.06. Liability of the Liquidity Provider ....................... 30
Section 7.07. Costs, Expenses and Taxes ................................. 31
Section 7.08. Binding Effect; Participations ............................ 31
Section 7.09. Severability .............................................. 34
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 ................................. 35
Section 7.13. Entirety .................................................. 35
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
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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 March 21, 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 C-II 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 C-II Trust Agreement (such term and all
other capitalized terms used in these recitals having the meanings set forth or
referred to in Section 1.01), the Class C-II Trust is issuing the Class C-II
Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a portion
of the interest on the Class C-II 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.
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"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).
"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 C-II
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.
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"Borrower" has the meaning assigned to such term in the recital of
parties to this Agreement.
"Borrowing" means the making of Advances requested by delivery of a
Notice of Borrowing.
"Business Day" means any day other than a Saturday or Sunday or a
day on which commercial banks are required or authorized to close in
Houston, Texas, New York, New York, Amsterdam, The Netherlands or, so
long as any Class C-II Certificate is outstanding, the city and state in
which the Class C-II 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 C-II
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
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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.
"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).
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"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 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, ▇▇▇▇▇(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
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amount of the Advance to which such Interest Period is to apply and for a
period of time comparable to such Interest Period.
"Liquidity Event of Default" means the occurrence of either (a) the
acceleration of all of the Equipment Notes (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)
$605,000.00 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.
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"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.
"Regulatory Change" has the meaning assigned to such term in Section
3.01.
"Replenishment Amount" has the meaning assigned to such term in
Section 2.06(b).
"Required Amount" means, for any day, the sum of the aggregate
amount of interest, calculated at the rate per annum equal to the Stated
Interest Rate for the Class C-II Certificates, that would be payable on
the Class C-II Certificates on each of the three successive semiannual
Regular Distribution Dates immediately following such day or, if such day
is a Regular Distribution Date, on such day and the succeeding two
semiannual Regular Distribution Dates, in each case calculated on the
basis of the Pool Balance of the Class C-II Certificates on such day and
without regard to expected future payments of principal on the Class C-II
Certificates.
"Stated Portion" means 50%.
"Successor Trust" means Continental Airlines Pass Through Trust
1997-1C-II-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 C-II 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
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that a Replacement Liquidity Facility has been substituted for this
Agreement in full pursuant to Section 3.6(e) of the Intercreditor
Agreement; (iv) the fifth Business Day following the receipt by the
Borrower of a Termination Notice from the Liquidity Provider pursuant to
Section 6.01 hereof; and (v) the date on which no Advance is or may
(including by reason of reinstatement as herein provided) become
available for a Borrowing hereunder.
"Termination Notice" means the Notice of Termination substantially
in the form of Annex V to this Agreement.
"Transferee" has the meaning assigned to such term in Section
7.08(b).
"Unapplied Downgrade Advance" means any Downgrade Advance other than
an Applied Downgrade Advance.
"Unapplied 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 Certificates",
"Class C-I Certificates", "Class C-II Cash Collateral Account",
"Class C-II Certificates", "Class C-II Certificateholders", "Class
C-II Trust", "Class C-II Trust Agreement", "Class C-II Trustee",
"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",
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"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".
(c) Interest on Certificates. For all purposes of this Agreement, each
scheduled payment with respect to a Class C-II 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 C-II
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 C-II
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
C-II 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
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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 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 C-II 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 C-II 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
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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 C-II 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, 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
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the Class C-II Cash Collateral Account, the Liquidity Provider shall have no
interest in or rights to the Class C-II Cash Collateral Account, any
Sub-Account thereof, such Advance or any other amounts from time to time on
deposit in the Class C-II 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 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 C-II 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
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and demand are hereby waived by the Borrower), to pay, or to cause to be paid,
to the Liquidity Provider on each date on which the Liquidity Provider shall
make an Interest Advance or the Final Advance, an amount equal to (a) the
amount of such Advance (any such Advance, until repaid, is referred to herein
as an "Unpaid Advance"), plus (b) interest on the amount of each such Unpaid
Advance as provided in Section 3.07 hereof; provided that if (i) the Liquidity
Provider shall make a Provider Advance at any time after making one or more
Interest Advances which shall not have been repaid in accordance with this
Section 2.05 or (ii) this Liquidity Facility shall become a Downgraded Facility
or Non-Extended Facility at any time when unreimbursed Interest Advances have
reduced the Maximum Available Commitment to zero, then such Interest Advances
shall cease to constitute Unpaid Advances and shall be deemed to have been
changed into an Applied Downgrade Advance or an Applied Non-Extension Advance,
as the case may be, for all purposes of this Agreement (including, without
limitation, for the purpose of determining when such Interest Advance is
required to be repaid to the Liquidity Provider in accordance with Section 2.06
and for the purposes of Section 2.06(b)). The Borrower and the Liquidity
Provider agree that the repayment in full of each Interest Advance and Final
Advance on the date such Advance is made is intended to be a contemporaneous
exchange for new value given to the Borrower by the Liquidity Provider.
Section 2.06. Repayments of Provider Advances. (a)EAmounts advanced
hereunder in respect of a Provider Advance shall be deposited in the ING
Sub-Account of the Class C-II Cash Collateral Account, invested and withdrawn
from the ING Sub-Account of the Class C-II 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 C-II Cash
Collateral Account for the purpose of paying interest on the Class C-II
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
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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 2.09 hereof, immediately upon the
withdrawal of any amounts from the ING Sub-Account of the Class C-II 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 C-II 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
C-II 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.
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Section 2.07. Payments to the Liquidity Provider Under the Intercreditor
Agreement. In order to provide for payment or repayment to the Liquidity
Provider of any amounts hereunder, the Intercreditor Agreement provides that
amounts available and referred to in Articles II and III of the Intercreditor
Agreement, to the extent payable to the Liquidity Provider pursuant to the
terms of the Intercreditor Agreement (including, without limitation, Section
3.6(f) of the Intercreditor Agreement), shall be paid to the Liquidity Provider
in accordance with the terms thereof. Amounts so paid to the Liquidity
Provider shall be applied by the Liquidity Provider to Liquidity Obligations
then due and payable in 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 C-II 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
C-II
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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 C-II Certificates), the
Borrower shall request that the Liquidity Provider extend the Expiry Date for a
period of 364 days after the then effective Expiry Date (unless the obligations
of the Liquidity Provider are earlier terminated in accordance with the terms
hereof). The Liquidity Provider shall advise the Borrower, no earlier than 40
days and no later than 25 days prior to the then effective Expiry Date,
whether, in its sole discretion, it agrees to so extend the Expiry Date. If
the Liquidity Provider advises the Borrower on or before the 25th day prior to
the Expiry Date then in effect that such Expiry Date shall not be so extended,
or fails to irrevocably and unconditionally advise the Borrower on or before
the 25th day prior to the Expiry Date then in effect that such Expiry Date
shall be so extended (and, in each case, if the Liquidity Provider shall not
have been replaced in accordance with Section 3.6(e) of the Intercreditor
Agreement), the Borrower shall be entitled on and after such 25th day (but
prior to the then effective Expiry Date) to request a Non-Extension Advance in
accordance with Section 2.02(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,
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state, municipal, or foreign laws or regulations (including Regulation D), or
the adoption or making after the date of this Agreement of any interpretations,
directives, or requirements applying to a class of banks including the
Liquidity Provider under any U.S. federal, state, municipal, or any foreign
laws or regulations (whether or not having the force of law) by any court,
central bank or monetary authority charged with the interpretation or
administration thereof (a "Regulatory Change"), which: (1) changes the basis of
taxation of any amounts payable to the Liquidity Provider under this Agreement
in respect of any such Advances (other than Excluded Taxes); or (2) imposes or
modifies any reserve, special deposit, compulsory loan or similar requirements
relating to any extensions of credit or other assets of, or any deposits with
other liabilities of, the Liquidity Provider (including any such Advances or
any deposits referred to in the definition of LIBOR Rate or related
definitions). The Liquidity Provider agrees to use reasonable efforts
(consistent with applicable legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if making such change would avoid the need
for, or reduce the amount of, any amount payable under this Section 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
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(3) compliance by the Liquidity Provider or any corporation controlling the
Liquidity Provider with any applicable guideline or request of general
applicability, issued after the date hereof, by any central bank or other
governmental authority (whether or not having the force of law) that
constitutes a change of the nature described in clause (2), has the effect of
requiring an increase in the amount of capital required to be maintained by the
Liquidity Provider or any corporation controlling the Liquidity Provider, and
such increase is based upon the Liquidity Provider's obligations hereunder and
other similar obligations, the Borrower shall pay to the Liquidity Provider
from time to time such additional amount or amounts as are necessary to
compensate the Liquidity Provider for such portion of such increase as shall be
reasonably allocable to the Liquidity Provider's obligations to the Borrower
hereunder. The Liquidity Provider agrees to use reasonable efforts (consistent
with applicable legal and regulatory restrictions) to change the jurisdiction
of its Lending Office if making such change would avoid the need for, or reduce
the amount of, any amount payable under this Section that may thereafter accrue
and would not, in the reasonable judgment of the Liquidity Provider, be
otherwise materially disadvantageous to the Liquidity Provider.
The Liquidity Provider will notify the Borrower of any event occurring
after the date of this Agreement that will entitle the Liquidity Provider to
compensation pursuant to this Section 3.02 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
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Tax"). If any Non-Excluded Taxes are required to be withheld from any amounts
payable to the Liquidity Provider under this Agreement, the amounts so payable
to the Liquidity Provider shall be increased to the extent necessary to yield
to the Liquidity Provider (after payment of all Non-Excluded Taxes) interest or
any other such amounts payable under this Agreement at the rates or in the
amounts specified in this Agreement. The Liquidity Provider agrees to use
reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its Lending Office if
making such change would avoid the need for, or reduce the amount of, any such
additional amounts that may thereafter accrue and would not, in the reasonable
judgment of the Liquidity Provider, be otherwise disadvantageous to the
Liquidity Provider. From time to time upon the reasonable request of the
Borrower, the Liquidity Provider agrees to provide to the Borrower two original
Internal Revenue Service Forms 1001 or 4224, as appropriate, or any successor
or other form prescribed by the Internal Revenue Service, certifying that the
Liquidity Provider is exempt from or entitled to a reduced rate of United
States withholding tax on payments pursuant to this Agreement.
(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
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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
(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
C-II Cash Collateral Account to pay interest on the Class C-II 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 C-II 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
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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 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).
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(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 C-II 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.
(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:
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(1) Any repayment of a LIBOR Advance on a date other than the last
day of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance on the
date for borrowing specified in the relevant notice under Section 2.02.
Section 3.10. Illegality. Notwithstanding any other provision in this
Agreement, if any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Liquidity Provider (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for the Liquidity Provider (or its Lending Office) to maintain or
fund its LIBOR Advances, then upon notice to the Borrower by the Liquidity
Provider, the outstanding principal amount of the LIBOR Advances shall be
converted to Base Rate Advances (a) immediately upon demand of the Liquidity
Provider, if such change or compliance with such request, in the judgment of
the Liquidity Provider, requires immediate repayment; or (b) at the expiration
of the last Interest Period to expire before the effective date of any such
change or request.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied or waived:
(a) The Liquidity Provider shall have received on or before the
Closing Date each of the following, 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;
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(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 C-II Certificates;
(v) An executed copy of each document, instrument, certificate
and opinion delivered on or before the Closing Date pursuant to the
Class C-II Trust Agreement, the Intercreditor Agreement and the
other Operative Agreements (together with, in the case of each such
opinion, other than the opinion of counsel for the 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
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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, 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
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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:
(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
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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 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):
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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
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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
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delivered hereunder to either party shall in addition be delivered to each of
the parties to the Participation Agreements at their respective addresses set
forth therein.
Section 7.03. No Waiver; Remedies. No failure on the part of the
Liquidity Provider to exercise, and no delay in exercising, any right under
this Agreement shall operate as a waiver thereof; nor shall any single or
partial exercise of any right under this Agreement preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
Section 7.04. Further Assurances. The Borrower agrees to do such further
acts and things and to execute and deliver to the Liquidity Provider such
additional assignments, agreements, powers and instruments as the Liquidity
Provider may reasonably require or deem advisable to carry into effect the
purposes of this Agreement and the other Operative Agreements or to better
assure and confirm unto the Liquidity Provider its rights, powers and remedies
hereunder and under the other Operative Agreements.
Section 7.05. Indemnification; Survival of Certain Provisions. The
Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Section 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
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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)ENeither the
Liquidity Provider nor any of its officers, employees, directors or affiliates
shall be liable or responsible for: (i) the use which may be made of the
Advances or any acts or omissions of the Borrower or any beneficiary or
transferee in connection therewith; (ii) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient, fraudulent or
forged; or (iii) the making of Advances by the Liquidity Provider against
delivery of a Notice of Borrowing and other documents which do not comply with
the terms hereof; provided, however, that the Borrower shall have a claim
against the Liquidity Provider, and the Liquidity Provider shall be liable to
the Borrower, to the extent of any damages suffered by the Borrower which were
the result of (A) the Liquidity Provider's willful misconduct or negligence in
determining whether documents presented hereunder comply with the terms hereof,
or (B) any breach by the Liquidity Provider of any of the terms of this
Agreement, including, but not limited to, the Liquidity Provider's failure to
make lawful payment hereunder after the delivery to it by the Borrower of a
Notice of Borrowing strictly complying with the terms and conditions hereof.
(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.
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31
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,
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
36
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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
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
37
33
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
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
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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.
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,
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35
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 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
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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 C-II Trust, as
Borrower
By:
---------------------------------------
Name:
Title:
ING BANK N.V., as as Liquidity Provider
By:
---------------------------------------
Name:
Title:
42
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 (1997-1C-II) 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 ClassEC-II Certificates which was payable on
____________, ____ (the "Distribution Date") in accordance with the
terms and provisions of the ClassEC-II Trust Agreement and the ClassEC-II
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
C-II 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 B Certificates or the Class C-I Certificates,
(iii) was computed in accordance with the provisions of the Class C-II
Certificates, the Class C-II 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
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2
which was due and payable on the Class C-II 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 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)Eno 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.
44
3
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 agent and
trustee for the Class C-II Trust, as
Borrower
By:
---------------------------------------
Name:
Title:
45
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest Advance
Notice of Borrowing]
46
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
(1997-1C-II) 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 C-II 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 C-II 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 C-II Certificates, or principal of, or interest or premium on,
the Class A Certificates, the Class B Certificates or the Class C-I
Certificates, (iii) was computed in accordance with the provisions of the
Class C-II Certificates, the Class C-II 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.
47
2
(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 C-II Cash Collateral Account and apply the same
in accordance with the terms of Section 3.6(d) of the Intercreditor
Agreement, (b) no portion of such amount shall be applied by the Borrower
for any other purpose and (c) no portion of such amount until so applied
shall be commingled with other funds held by the Borrower.
(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.
48
3
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:
49
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Non-Extension Advance Notice of
Borrowing]
50
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
(1997-1C-II) 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 C-II 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 C-II 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 C-II Certificates, or principal of, or interest or premium on,
the Class A Certificates, the Class B Certificates or the Class C-I
Certificates, (iii) was computed in accordance with the provisions of the
Class C-II Certificates, the Class C-II 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.
51
2
(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 C-II Cash Collateral Account and apply the same
in accordance with the terms of Section 3.6(c) of the Intercreditor
Agreement, (b) no portion of such amount shall be applied by the Borrower
for any other purpose and (c) no portion of such amount until so applied
shall be commingled with other funds held by the Borrower.
(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) following the making by the Liquidity Provider of the Downgrade Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
52
3
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:
53
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Downgrade Advance Notice of Borrowing]
54
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 (1997-1C-II) dated as of
MarchE_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 C-II 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 C-II 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 C-II Certificates, or principal of, or interest or premium on, the
Class A Certificates, the Class B Certificates or the Class C-I
Certificates, (iii) was computed in accordance with the provisions of the
Class C-II Certificates, the Class C-II 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.
55
2
(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 C-II Cash Collateral Account and apply the same
in accordance with the terms of Section 3.6(i) of the Intercreditor
Agreement, (b) no portion of such amount shall be applied by the Borrower
for any other purpose and (c) no portion of such amount until so applied
shall be commingled with other funds held by the Borrower.
(5) The Borrower hereby requests that the Advance requested hereby
be a Base Rate Advance and that such Base Rate Advance be converted into
a LIBOR Advance on the third Business Day following your receipt of this
notice.
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.
56
3
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:
57
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Final Advance Notice of Borrowing]
58
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, 1997-1C-II-[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.
59
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 C-II Trustee
60
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, 1997-1C-II-[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.
61
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: