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REVOLVING CREDIT AGREEMENT
(2000-2A-1)
DATED AS OF NOVEMBER 28, 2000
BETWEEN
WILMINGTON TRUST COMPANY,
AS SUBORDINATION AGENT,
AS AGENT AND TRUSTEE FOR THE
CONTINENTAL AIRLINES PASS THROUGH TRUST 2000-2A-1
AS BORROWER
AND
LANDESBANK HESSEN-THURINGEN GIROZENTRALE
AS LIQUIDITY PROVIDER
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RELATING TO
CONTINENTAL AIRLINES PASS THROUGH TRUST 2000-2A-1
7.707% CONTINENTAL AIRLINES PASS THROUGH CERTIFICATES,
SERIES 2000-2A-1
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.......................................................1
Section 1.01. Certain Defined Terms......................................1
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENT...............................7
Section 2.01. The Advances...............................................7
Section 2.02. Making the Advances........................................7
Section 2.03. Fees.......................................................9
Section 2.04. Reductions or Termination of the Maximum Commitment........9
Section 2.05. Repayments of Interest Advances or the Final Advance......10
Section 2.06. Repayments of Provider Advances...........................10
Section 2.07. Payments to the Liquidity Provider Under the
Intercreditor Agreement...................................11
Section 2.08. Book Entries..............................................11
Section 2.09. Payments from Available Funds Only........................11
Section 2.10. Extension of the Expiry Date; Non-Extension Advance.......12
ARTICLE III OBLIGATIONS OF THE BORROWER....................................12
Section 3.01. Increased Costs...........................................12
Section 3.02. Capital Adequacy..........................................13
Section 3.03. Payments Free of Deductions...............................14
Section 3.04. Payments..................................................15
Section 3.05. Computations..............................................15
Section 3.06. Payment on Non-Business Days..............................15
Section 3.07. Interest..................................................15
Section 3.08. Replacement of Borrower...................................17
Section 3.09. Funding Loss Indemnification..............................17
Section 3.10. Illegality................................................17
ARTICLE IV CONDITIONS PRECEDENT............................................18
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01.....18
Section 4.02. Conditions Precedent to Borrowing.........................19
ARTICLE V COVENANTS........................................................19
Section 5.01. Affirmative Covenants of the Borrower.....................19
Section 5.02. Negative Covenants of the Borrower........................20
ARTICLE VI LIQUIDITY EVENTS OF DEFAULT.....................................20
Section 6.01. Liquidity Events of Default...............................20
ARTICLE VII MISCELLANEOUS..................................................20
Section 7.01. Amendments, Etc...........................................20
Section 7.02. Notices, Etc..............................................21
Section 7.03. No Waiver; Remedies.......................................22
PAGE
Section 7.04. Further Assurances........................................22
Section 7.05. Indemnification; Survival of Certain Provisions...........22
Section 7.06. Liability of the Liquidity Provider.......................22
Section 7.07. Costs, Expenses and Taxes.................................23
Section 7.08. Binding Effect; Participations............................23
Section 7.09. Severability..............................................25
Section 7.10. GOVERNING LAW.............................................25
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial;
Waiver of Immunity........................................25
Section 7.12. Execution in Counterparts.................................26
Section 7.13. Entirety..................................................26
Section 7.14. Headings..................................................26
Section 7.15. Transfer..................................................26
Section 7.16. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES..........26
ANNEX I Interest Advance Notice of Borrowing
ANNEX II Non-Extension Advance Notice of Borrowing
ANNEX III Downgrade Advance Notice of Borrowing
ANNEX IV Final Advance Notice of Borrowing
ANNEX V Notice of Termination
ANNEX VI Notice of Replacement Subordination Agent
REVOLVING CREDIT AGREEMENT (2000-2A-1)
This REVOLVING CREDIT AGREEMENT (2000-2A-1) dated as of November
28, 2000, between WILMINGTON TRUST COMPANY, a Delaware corporation, not in
its individual capacity but solely as Subordination Agent under the
Intercreditor Agreement (each as defined below), as agent and trustee for the
Class A-1 Trust (as defined below) (the "BORROWER"), and LANDESBANK
HESSEN-THURINGEN GIROZENTRALE, a public-law banking institution organized
under the laws of Germany (the "LIQUIDITY PROVIDER").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Class A-1 Trust Agreement (such term and
all other capitalized terms used in these recitals having the meanings set
forth or referred to in Section 1.01), the Class A-1 Trust is issuing the
Class A-1 Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of
a portion of the interest on the Class A-1 Certificates in accordance with
their terms, has requested the Liquidity Provider to enter into this
Agreement, providing in part for the Borrower to request in specified
circumstances that Advances be made hereunder.
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. (a) DEFINITIONS. As used
in this Agreement and unless otherwise expressly indicated, or unless the
context clearly requires otherwise, the following capitalized terms shall
have the following respective meanings for all purposes of this Agreement:
"ADDITIONAL COST" has the meaning assigned to such term in
Section 3.01.
"ADVANCE" means an Interest Advance, a Final Advance, a Provider
Advance or an Applied Provider Advance, as the case may be.
"APPLICABLE LIQUIDITY RATE" has the meaning assigned to such term
in Section 3.07(g).
"APPLICABLE MARGIN" means (x) with respect to any Unpaid Advance
or Applied Provider Advance, 1.50% per annum, or (y) with respect to
any Unapplied Provider Advance, the rate per annum specified in the Fee
Letter.
"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 Agreement to be entered into between the Borrower and the
trustee of the Successor Trust, substantially in the form of Exhibit C
to the Trust Supplement No. 2000-2A-1-O, dated as of the date hereof,
relating to the Class A-1 Trust.
"BASE RATE" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to
(a) the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day
for such transactions received by the Liquidity Provider from three
Federal funds brokers of recognized standing selected by it, plus (b)
one-quarter of one percent (1/4 of 1%).
"BASE RATE ADVANCE" means an Advance that bears interest at a
rate based upon the Base Rate.
"BORROWER" has the meaning assigned to such term in the recital
of parties to this Agreement.
"BORROWING" means the making of Advances requested by delivery of
a Notice of Borrowing.
"BUSINESS DAY" means any day other than a Saturday or Sunday or a
day on which commercial banks are required or authorized to close in
Houston, Texas, New York, New York or, so long as any Class A-1
Certificate is outstanding, the city and state in which the Class A-1
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.
"CONSENT PERIOD" has the meaning specified in Section 2.10.
"DEPOSIT AGREEMENT" means the Deposit Agreement dated as of the
date hereof between First Security Bank, National Association, as
Escrow Agent, Credit Suisse First Boston, New York branch, as
Depositary, pertaining to the Class A-1 Certificates, as the same may
be amended, modified or supplemented from time to time in accordance
with the terms thereof.
"DEPOSITARY" has the meaning assigned to such term in the Deposit
Agreement.
"DEPOSITS" has the meaning assigned to such term in the Deposit
Agreement.
"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.
"EXCLUDED TAXES" means (i) taxes imposed on the overall net
income of the Liquidity Provider or of its Facility Office by the
jurisdiction where such Liquidity Provider's principal office or such
Facility 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 or increased as a result of any change in
applicable law (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) after the date hereof, or in
the case of a successor Liquidity Provider (including a transferee of
an Advance) or Facility Office, after the date on which such successor
Liquidity Provider obtains its interest or on which the Facility Office
is changed, and (ii) any withholding Taxes imposed by the United States
which are imposed or increased as a result of the Liquidity Provider
failing to deliver to the Borrower any certificate or document (which
certificate or document in the good faith judgment of the Liquidity
Provider it is legally entitled to provide) which is reasonably
requested by the Borrower to establish that payments under this
Agreement are exempt from (or entitled to a reduced rate of)
withholding Tax.
"EXPENSES" means liabilities, obligations, damages, settlements,
penalties, claims, actions, suits, costs, expenses, and disbursements
(including, without limitation, reasonable fees and disbursements of
legal counsel and costs of investigation), provided that Expenses shall
not include any Taxes.
"EXPIRY DATE" means November 26, 2001, initially, or any date to
which the Expiry Date is extended pursuant to Section 2.10.
"EXTENSION NOTICE" has the meaning specified in Section 2.10.
"FACILITY OFFICE" means the office of the Liquidity Provider
presently located at Frankfurt, Germany, or such other office as the
Liquidity Provider from time to time shall notify the Borrower as its
Facility Office hereunder; provided that the Liquidity Provider shall
not change its Facility Office to another Facility Office outside the
United States of America except in accordance with Section 3.01, 3.02
or 3.03 hereof.
"FINAL ADVANCE" means an Advance made pursuant to Section 2.02(d).
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement dated
the date hereof among the Trustees, the Liquidity Provider, the
liquidity provider under each Liquidity Facility (other than this
Agreement) and the Subordination Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
"INTEREST ADVANCE" means an Advance made pursuant to Section
2.02(a).
"INTEREST PERIOD" means, with respect to any LIBOR Advance, each
of the following periods:
(i) the period beginning on the third Business Day following
either (x) the Liquidity Provider's receipt of the Notice
of Borrowing for such LIBOR Advance or (y) the withdrawal
of funds from the Class A-1 Cash Collateral Account for the
purpose of paying interest on the Class A-1 Certificates as
contemplated by Section 2.06(a) hereof and, in either case,
ending on the next Regular Distribution Date; and
(ii) each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the
next Regular Distribution Date;
PROVIDED, HOWEVER, that if (x) the Final Advance shall have been made,
or (y) other outstanding Advances shall have been converted into the
Final Advance, then the Interest 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).
"LIBOR ADVANCE" means an Advance bearing interest at a rate based
upon the LIBOR Rate.
"LIBOR RATE" means, with respect to any Interest Period,
(i) the rate per annum appearing on display page 3750 (British
Bankers Association-LIBOR) of the Dow ▇▇▇▇▇ Markets Service
(or any successor or substitute therefor) at approximately
11:00 A.M. (London time) two Business Days before the first
day of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest
Period, or
(ii) if the rate calculated pursuant to clause (i) above is not
available, the average (rounded upwards, if necessary, to
the next 1/16 of 1%) of the rates per annum at which
deposits in dollars are offered for the relevant Interest
Period by three banks of recognized standing selected by
the Liquidity Provider in the London interbank market at
approximately 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount
approximately equal to the principal amount of the LIBOR
Advance to which such Interest Period is to apply and for a
period 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 $300,000,000) 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 initially $43,969,205.70 as the same
may be reduced from time to time in accordance with Section 2.04(a).
"NON-EXCLUDED TAX" has the meaning specified in Section 3.03.
"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.
"PERFORMING NOTE DEFICIENCY" means any time that less than 65% of
the then aggregate outstanding principal amount of all Equipment Notes
are Performing Equipment Notes.
"PROSPECTUS SUPPLEMENT" means the Prospectus Supplement dated
November 14, 2000 relating to the Certificates, as such Prospectus
Supplement may be amended or supplemented.
"PROVIDER ADVANCE" means a Downgrade Advance or a Non-Extension
Advance.
"REGULATORY CHANGE" has the meaning assigned to such term in
Section 3.01.
"REPLENISHMENT AMOUNT" has the meaning assigned to such term in
Section 2.06(b).
"REQUIRED AMOUNT" means, for any day, the sum of the aggregate
amount of interest, calculated at the rate per annum equal to the
Stated Interest Rate for the Class A-1 Certificates, that would be
payable on the Class A-1 Certificates on each of the three successive
semiannual Regular Distribution Dates immediately following such day
or, if such day is a Regular Distribution Date, on such day and the
succeeding two semiannual Regular Distribution Dates, in each case
calculated on the basis of the Pool Balance of the Class A-1
Certificates on such day and without regard to expected future payments
of principal on the Class A-1 Certificates.
"SUCCESSOR TRUST" means Continental Airlines Pass Through Trust
2000-2A-1-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 A-1 Certificates have
been paid in full (or provision has been made for such payment in
accordance with the Intercreditor Agreement and the Trust Agreements)
or are otherwise no longer entitled to the benefits of this Agreement;
(iii) the date on which the Borrower delivers to the Liquidity Provider
a certificate, signed by a Responsible Officer of the Borrower,
certifying that a Replacement Liquidity Facility has been substituted
for this Agreement in full pursuant to Section 3.6(e) of the
Intercreditor Agreement; (iv) the fifth Business Day following the
receipt by the Borrower of a Termination Notice from the Liquidity
Provider pursuant to Section 6.01 hereof; and (v) the date on which no
Advance is or may (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 NON-EXTENSION ADVANCE" means any Non-Extension Advance
other than an Applied Non-Extension Advance.
"UNAPPLIED PROVIDER ADVANCE" means any Provider Advance other
than an Applied Provider Advance.
"UNPAID ADVANCE" has the meaning assigned to such term in Section
2.05.
"WITHDRAWAL NOTICE" has the meaning specified in Section 2.10.
(b) TERMS DEFINED IN THE INTERCREDITOR AGREEMENT. For all
purposes of this Agreement, the following terms shall have the respective
meanings assigned to such terms in the Intercreditor Agreement:
"ACCELERATION", "CERTIFICATES", "CLASS A-1 CASH COLLATERAL ACCOUNT",
"CLASS A-1 CERTIFICATEHOLDERS", "CLASS A-1 CERTIFICATES", "CLASS A-1
TRUST", "CLASS A-1 TRUST AGREEMENT", "CLASS A-1 TRUSTEE", "CLASS A-2
CERTIFICATES", "CLASS B CERTIFICATES", "CLASS C CERTIFICATES", "CLOSING
DATE", "CONTINENTAL", "CONTINENTAL BANKRUPTCY EVENT", "CONTROLLING
Party", "CORPORATE TRUST OFFICE", "DELIVERY PERIOD EXPIRY DATE",
"DISTRIBUTION DATE", "DOWNGRADED FACILITY", "EQUIPMENT NOTES", "FEE
LETTER", "FINAL LEGAL DISTRIBUTION DATE", "FINANCING AGREEMENT",
"INDENTURE", "INVESTMENT EARNINGS", "LEASED AIRCRAFT", "LIQUIDITY
FACILITY", "LIQUIDITY OBLIGATIONS", "LOAN TRUSTEE", "▇▇▇▇▇'▇",
"NON-EXTENDED FACILITY", "NOTE PURCHASE AGREEMENT", "OPERATIVE
AGREEMENTS", "OWNED AIRCRAFT", "PARTICIPATION AGREEMENT", "PERFORMING
EQUIPMENT NOTE", "PERSON", "POOL BALANCE", "RATING AGENCY", "RATINGS
CONFIRMATION", "REGULAR DISTRIBUTION DATE", "REPLACEMENT LIQUIDITY
FACILITY", "RESPONSIBLE OFFICER", "SCHEDULED PAYMENT", "SPECIAL
Payment", "STANDARD & POOR'S", "STATED INTEREST RATE", "SUBORDINATION
AGENT", "TAXES", "THRESHOLD RATING", "TRANSFER", "TRUST AGREEMENTS",
"TRUSTEE", "UNDERWRITERS", "UNDERWRITING AGREEMENT", and "WRITTEN
Notice".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
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 1:00 p.m. (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 interest on the
Class A-1 Certificates at the Stated Interest Rate therefor in accordance
with Section 3.6(a) of the Intercreditor Agreement. Each Interest Advance
made hereunder shall automatically reduce the Maximum Available Commitment
and the amount available to be borrowed hereunder by subsequent Advances by
the amount of such Interest Advance (subject to reinstatement as provided in
the next sentence). Upon repayment to the Liquidity Provider in full of the
amount of any Interest Advance made pursuant to this Section 2.02(a),
together with accrued interest thereon (as provided herein), the Maximum
Available Commitment shall be reinstated by the amount of such repaid
Interest Advance, but not to exceed the Maximum Commitment; PROVIDED,
however, that the Maximum Available Commitment shall not be so reinstated at
any time if (i) a Liquidity Event of Default shall have occurred and be
continuing and (ii) there is a Performing Note Deficiency.
(b) A Non-Extension Advance shall be made in a single Borrowing
if this Agreement is not extended in accordance with Section 3.6(d) of the
Intercreditor Agreement (unless a Replacement Liquidity Facility to replace
this Agreement shall have been delivered to the Borrower as contemplated by
said Section 3.6(d) within the time period specified in such Section) by
delivery to the Liquidity Provider of a written and completed Notice of
Borrowing in substantially the form of Annex II attached hereto, signed by a
Responsible Officer of the Borrower, in an amount equal to the Maximum
Available Commitment at such time, and shall be used to fund the Class A-1
Cash Collateral Account in accordance with said Section 3.6(d) and Section
3.6(f) of the Intercreditor Agreement.
(c) A Downgrade Advance shall be made in a single Borrowing
upon a downgrading of the Liquidity Provider's short-term unsecured debt
rating issued by either Rating Agency below the applicable Threshold Rating
(as provided for in Section 3.6(c) of the Intercreditor Agreement) unless a
Replacement Liquidity Facility to replace this Agreement shall have been
previously delivered to the Borrower in accordance with said Section 3.6(c),
by delivery to the Liquidity Provider of a written and completed Notice of
Borrowing in substantially the form of Annex III attached hereto, signed by a
Responsible Officer of the Borrower, in an amount equal to the Maximum
Available Commitment at such time, and shall be used to fund the Class A-1
Cash Collateral Account in accordance with said Section 3.6(c) and Section
3.6(f) of the Intercreditor Agreement.
(d) A Final Advance shall be made in a single Borrowing upon
the receipt by the Borrower of a Termination Notice from the Liquidity
Provider pursuant to Section 6.01 hereof by delivery to the Liquidity
Provider of a written and completed Notice of Borrowing in substantially the
form of Annex IV attached hereto, signed by a Responsible Officer of the
Borrower, in an amount equal to the Maximum Available Commitment at such
time, and shall be used to fund the Class A-1 Cash Collateral Account (in
accordance with Sections 3.6(f) and 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 1:00 p.m. (New York City time) on a
Business Day, upon satisfaction of the conditions precedent set forth in
Section 4.02 with respect to a requested Borrowing, the Liquidity Provider
shall make available to the Borrower, in accordance with its payment
instructions, the amount of such Borrowing in U.S. dollars and immediately
available funds, before 4:00 p.m. (New York City time) on such Business Day
or on such later Business Day specified in such Notice of Borrowing. If a
Notice of Borrowing is delivered by the Borrower in respect of any Borrowing
on a day that is not a Business Day or after 1:00 p.m. (New York City time)
on a Business Day, upon satisfaction of the conditions precedent set forth in
Section 4.02 with respect to a requested Borrowing, the Liquidity Provider
shall make available to the Borrower, in accordance with its payment
instructions, the amount of such Borrowing in U.S. dollars and in immediately
available funds, before 12:00 Noon (New York City time) on the first Business
Day next following the day of receipt of such Notice of Borrowing or on such
later Business Day specified by the Borrower in such Notice of Borrowing.
Payments of proceeds of a Borrowing shall be made by wire transfer of
immediately available funds to the Borrower in accordance with such wire
transfer instructions as the Borrower shall furnish from time to time to the
Liquidity Provider for such purpose. Each Notice of Borrowing shall be
irrevocable and binding on the Borrower. Each Notice of Borrowing shall be
effective upon delivery of a copy thereof to the Liquidity Provider's New
York Branch at the address specified in Section 7.02 hereof.
(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. If the
Liquidity Provider makes an Advance requested pursuant to a Notice of
Borrowing before 12:00 Noon (New York City time) on the second Business Day
after the date of payment specified in said Section 2.02(e), the Liquidity
Provider shall have fully discharged its obligations hereunder with respect
to such Advance and an event of default shall not have occurred hereunder.
Following the making of any Advance pursuant to Section 2.02(b), (c) or (d)
hereof to fund the Class A-1 Cash Collateral Account, the Liquidity Provider
shall have no interest in or rights to the Class A-1 Cash Collateral Account,
the funds constituting such Advance or any other amounts from time to time on
deposit in the Class A-1 Cash Collateral Account; PROVIDED that the foregoing
shall not affect or impair the obligations of the Subordination Agent to make
the distributions contemplated by Section 3.6(e) or (f) of the Intercreditor
Agreement, and provided further, that the foregoing shall not affect or
impair the rights of the Liquidity Provider to provide written instructions
with respect to the investment and reinvestment of amounts in the Cash
Collateral Accounts to the extent provided in Section 2.2(b) of the
Intercreditor Agreement. By paying to the Borrower proceeds of Advances
requested by the Borrower in accordance with the provisions of this
Agreement, the Liquidity Provider makes no representation as to, and assumes
no responsibility for, the correctness or sufficiency for any purpose of the
amount of the Advances so made and requested.
Section 2.03. FEES. The Borrower agrees to pay to the Liquidity
Provider the fees set forth in the Fee Letter.
Section 2.04. REDUCTIONS OR TERMINATION OF THE MAXIMUM
Commitment.
(a) AUTOMATIC REDUCTION. Promptly following each date on which
the Required Amount is reduced as a result of a reduction in the Pool Balance
of the Class A-1 Certificates or otherwise, the Maximum Commitment shall
automatically be reduced to an amount equal to such reduced Required Amount
(as calculated by the Borrower); PROVIDED that on the first Regular
Distribution Date, the Maximum Commitment shall automatically be reduced to
the then Required Amount. The Borrower shall give notice of any such
automatic reduction of the Maximum Commitment to the Liquidity Provider
within two Business Days thereof. The failure by the Borrower to furnish any
such notice shall not affect such automatic reduction of the Maximum
Commitment.
(b) TERMINATION. Upon the making of any Provider Advance or
Final Advance hereunder or the occurrence of the Termination Date, the
obligation of the Liquidity Provider to make further Advances hereunder shall
automatically and irrevocably terminate, and the Borrower shall not be
entitled to request any further Borrowing hereunder.
Section 2.05. REPAYMENTS OF INTEREST ADVANCES OR THE FINAL
ADVANCE. Subject to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby
agrees, without notice of an Advance or demand for repayment from the
Liquidity Provider (which notice and demand are hereby waived by the
Borrower), to pay, or to cause to be paid, to the Liquidity Provider on each
date on which the Liquidity Provider shall make an Interest Advance or the
Final Advance, an amount equal to (a) the amount of such Advance (any such
Advance, until repaid, is referred to herein as an "UNPAID ADVANCE"), plus
(b) interest on the amount of each such Unpaid Advance as provided in Section
3.07 hereof; PROVIDED 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) Amounts
advanced hereunder in respect of a Provider Advance shall be deposited in the
Class A-1 Cash Collateral Account, invested and withdrawn from the Class A-1
Cash Collateral Account as set forth in Sections 3.6(c), (d) and (f) of the
Intercreditor Agreement. The Borrower agrees to pay to the Liquidity
Provider, on each Regular Distribution Date, commencing on the first Regular
Distribution Date after the making of a Provider Advance, interest on the
principal amount of any such Provider Advance as provided in Section 3.07;
PROVIDED, HOWEVER, that amounts in respect of a Provider Advance withdrawn
from the Class A-1 Cash Collateral Account for the purpose of paying interest
on the Class A-1 Certificates in accordance with Section 3.6(f) of the
Intercreditor Agreement (the amount of any such withdrawal being (y) in the
case of a Downgrade Advance, an "APPLIED DOWNGRADE ADVANCE" and (z) in the
case of a Non-Extension Advance, an "APPLIED NON-EXTENSION ADVANCE" and,
together with an Applied Downgrade Advance, an "APPLIED PROVIDER ADVANCE")
shall thereafter (subject to Section 2.06(b)) be treated as an Interest
Advance under this Agreement for purposes of determining the Applicable
Liquidity Rate for interest payable thereon; PROVIDED FURTHER, HOWEVER, that
if, following the making of a Provider Advance, the Liquidity Provider
delivers a Termination Notice to the Borrower pursuant to Section 6.01
hereof, such Provider Advance shall thereafter be treated as a Final Advance
under this Agreement for purposes of determining the Applicable Liquidity
Rate for interest payable thereon and the obligation for repayment thereof.
Subject to Sections 2.07 and 2.09 hereof, immediately upon the withdrawal of
any amounts from the Class A-1 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
such reduction, plus interest on the principal amount prepaid as provided in
Section 3.07 hereof.
(b) At any time when an Applied Provider Advance (or any
portion thereof) is outstanding, upon the deposit in the Class A-1 Cash
Collateral Account of any amount pursuant to clause "THIRD" of Section 2.4(b)
of the Intercreditor Agreement, clause "THIRD" of Section 3.2 of the
Intercreditor Agreement or clause "FOURTH" of Section 3.3 of the
Intercreditor Agreement (any such amount being a "REPLENISHMENT AMOUNT") for
the purpose of replenishing or increasing the balance thereof up to the
Required Amount at such time, (i) the aggregate outstanding principal amount
of all Applied Provider Advances (and of Provider Advances treated as an
Interest Advance for purposes of determining the Applicable Liquidity Rate
for interest payable thereon) shall be automatically reduced by the amount of
such Replenishment Amount and (ii) the aggregate outstanding principal amount
of all Unapplied Provider Advances shall be automatically increased by the
amount of such Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity Facility in
replacement of this Agreement in accordance with Section 3.6(e) of the
Intercreditor Agreement, amounts remaining on deposit in the Class A-1 Cash
Collateral Account after giving effect to any Applied Provider Advance on the
date of such replacement shall be reimbursed to the Liquidity Provider, but
only to the extent such amounts are necessary to repay in full to the
Liquidity Provider all amounts owing to it hereunder.
Section 2.07. PAYMENTS TO THE LIQUIDITY PROVIDER UNDER THE
INTERCREDITOR AGREEMENT. In order to provide for payment or repayment to the
Liquidity Provider of any amounts hereunder, the Intercreditor Agreement
provides that amounts available and referred to in Articles II and III of the
Intercreditor Agreement, to the extent payable to the Liquidity Provider
pursuant to the terms of the Intercreditor Agreement (including, without
limitation, Section 3.6(f) of the Intercreditor Agreement), shall be paid to
the Liquidity Provider in accordance with the terms thereof. Amounts so paid
to the Liquidity Provider shall be applied by the Liquidity Provider to
Liquidity Obligations then due and payable in accordance with the
Intercreditor Agreement or, if not provided for in the Intercreditor
Agreement, then in such manner as the Liquidity Provider shall deem
appropriate.
Section 2.08. BOOK ENTRIES. The Liquidity Provider shall
maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower resulting from Advances made from
time to time and the amounts of principal and interest payable hereunder and
paid from time to time in respect thereof; PROVIDED, HOWEVER, that the
failure by the Liquidity Provider to maintain such account or accounts shall
not affect the obligations of the Borrower in respect of Advances.
Section 2.09. PAYMENTS FROM AVAILABLE FUNDS ONLY. All payments
to be made by the Borrower under this Agreement shall be made only from the
amounts that constitute Scheduled Payments, Special Payments or payments
under Section 8.1 of the Participation Agreements with respect to Owned
Aircraft, payments under Section 9.1 of the Participation Agreements with
respect to Leased Aircraft and payments under Section 6 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 Class
A-1 Cash Collateral Account shall be available to the Borrower to make
payments under this Agreement only to the extent and for the purposes
expressly contemplated in Section 3.6(f) of the Intercreditor Agreement.
Section 2.10. EXTENSION OF THE EXPIRY DATE; NON-EXTENSION
Advance. No earlier than the 60th day and no later than the 40th day prior
to the then effective Expiry Date (unless such Expiry Date is on or after the
date that is 15 days after the Final Legal Distribution Date for the Class
A-1 Certificates), the Borrower shall request that the Liquidity Provider
extend the Expiry Date to the earlier of (i) the date that is 15 days after
the Final Legal Distribution Date for the Class A-1 Certificates and (ii) the
date that is the day immediately preceding the 364th day occurring after the
last day of the Consent Period (as hereinafter defined). Whether or not the
Borrower has made such request, the Liquidity Provider shall advise the
Borrower, no earlier than the 40th day (or, if earlier, the date of the
Liquidity Provider's receipt of such request, if any, from the Borrower) and
no later than the 25th day prior to the then effective Expiry Date (such
period, the "CONSENT PERIOD"), whether, in its sole discretion, it agrees to
so extend the Expiry Date. If the Liquidity Provider advises the Borrower on
or before the date on which the Consent Period ends that such Expiry Date
shall not be so extended, or fails to irrevocably and unconditionally advise
the Borrower on or before the date on which the Consent Period ends that such
Expiry Date shall be so extended (and, in each case, if the Liquidity
Provider shall not have been replaced in accordance with Section 3.6(e) of
the Intercreditor Agreement), the Borrower shall be entitled on and after the
date on which the Consent Period ends (but prior to the then effective Expiry
Date) to request a Non-Extension Advance in accordance with Section 2.02(b)
hereof and Section 3.6(d) of the Intercreditor Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. INCREASED COSTS. The Borrower shall pay to the
Liquidity Provider from time to time such amounts as may be necessary to
compensate the Liquidity Provider for any increased costs incurred by the
Liquidity Provider which are attributable to its making or maintaining any
LIBOR Advances hereunder or its obligation to make any such Advances
hereunder, or any reduction in any amount receivable by the Liquidity
Provider under this Agreement or the Intercreditor Agreement in respect of
any such Advances or such obligation (such increases in costs and reductions
in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from
any change after the date of this Agreement in U.S. federal, state,
municipal, or foreign laws or regulations (including Regulation D of the
Board of Governors of the Federal Reserve System), 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 or such obligation (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 such obligation 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 Facility 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.
Notwithstanding the preceding two paragraphs, the Liquidity
Provider and the Subordination Agent agree that any permitted assignee or
participant of the initial Liquidity Provider which is not a bank shall not
be entitled to the benefits of the preceding two paragraphs (but without
limiting the provisions of Section 7.08 hereof).
Section 3.02. CAPITAL ADEQUACY. If (1) the adoption, after the
date hereof, of any applicable governmental law, rule or regulation regarding
capital adequacy, (2) any change, after the date hereof, in the
interpretation or administration of any such law, rule or regulation by any
central bank or other governmental authority charged with the interpretation
or administration thereof or (3) compliance by the Liquidity Provider or any
corporation controlling the Liquidity Provider with any applicable guideline
or request of general applicability, issued after the date hereof, by any
central bank or other governmental authority (whether or not having the force
of law) that constitutes a change of the nature described in clause (2), has
the effect of requiring an increase in the amount of capital required to be
maintained by the Liquidity Provider or any corporation controlling the
Liquidity Provider, and such increase is based upon the Liquidity Provider's
obligations hereunder and other similar obligations, the Borrower shall pay
to the Liquidity Provider from time to time such additional amount or amounts
as are necessary to compensate the Liquidity Provider for such portion of
such increase as shall be reasonably allocable to the Liquidity Provider's
obligations to the Borrower hereunder. The Liquidity Provider agrees to use
reasonable efforts (consistent with applicable legal and regulatory
restrictions) to change the jurisdiction of its Facility 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 Liquidity
Provider and of the amount allocable to the Liquidity Provider's obligations
to the Borrower hereunder shall be prima facie evidence of the amounts owed
under this Section.
Notwithstanding the preceding two paragraphs, the Liquidity
Provider and the Subordination Agent agree that any permitted assignee or
participant of the initial Liquidity Provider which is not a bank shall not
be entitled to the benefits of the preceding two paragraphs (but without
limiting the provisions of Section 7.08 hereof).
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 each, individually, as a
"NON-EXCLUDED TAX"). If any Non-Excluded Taxes are required to be withheld
from any amounts payable to the Liquidity Provider under this Agreement, (i)
the Borrower shall within the time prescribed therefor by applicable law pay
to the appropriate governmental or taxing authority the full amount of any
such Non-Excluded Taxes (and any additional Non-Excluded Taxes in respect of
the additional amounts payable under clause (ii) hereof) and make such
reports or returns in connection therewith at the time or times and in the
manner prescribed by applicable law, and (ii) 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 Facility 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 Form W-8BEN or W-8ECI, 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. Within 30 days after the date of each payment hereunder, the
Borrower shall furnish to the Liquidity Provider the original or a certified
copy of (or other documentary evidence of) the payment of the Non-Excluded
Taxes applicable to such payment.
(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 additional amounts payable under clause (ii) hereof) and
make such reports or returns in connection therewith at the time or times and
in the manner prescribed by applicable law, and (ii) pay to the Borrower an
additional amount which (after deduction of all such Taxes) 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.
(c) If any exemption from, or reduction in the rate of, any
Taxes is reasonably available to the Borrower to establish that payments
under this Agreement are exempt from (or entitled to a reduced rate of) tax,
the Borrower shall deliver to the Liquidity Provider such form or forms and
such other evidence of the eligibility of the Borrower for such exemption or
reduction as the Liquidity Provider may reasonably identify to the Borrower
as being required as a condition to exemption from, or reduction in the rate
of, any Taxes.
Section 3.04. PAYMENTS. The Borrower shall make or cause to be
made each payment to the Liquidity Provider under this Agreement so as to
cause the same to be received by the Liquidity Provider not later than 1:00
P.M. (New York City time) on the day when due. The Borrower shall make all
such payments in lawful money of the United States of America, to the
Liquidity Provider in immediately available funds, by wire transfer to
Citibank N.A., New York/ABA ▇▇▇▇▇▇▇▇▇ in favor of account number ▇▇▇▇▇▇▇▇,
reference Continental Airlines Trust 2000-2A-1 #4140752, attn. ▇. ▇▇▇▇.
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
Class A-1 Cash Collateral Account to pay interest on the Class A-1
Certificates) to but excluding the date such principal amount shall be paid
in full (or, in the case of an Applied Provider Advance, the date on which
the Class A-1 Cash Collateral Account is fully replenished in respect of such
Advance) and (ii) any other amount due hereunder (whether fees, commissions,
expenses or other amounts or, to the extent permitted by law, installments of
interest on Advances or any such other amount) which is not paid when due
(whether at stated maturity, by acceleration or otherwise) from and including
the due date thereof to but excluding the date such amount is paid in full,
in each such case, at a fluctuating interest rate per annum for each day
equal to the Applicable Liquidity Rate (as defined below) for such Advance or
such other amount as in effect for such day, but in no event at a rate per
annum greater than the maximum rate permitted by applicable law; PROVIDED,
HOWEVER, that, if at any time the otherwise applicable interest rate as set
forth in this Section 3.07 shall exceed the maximum rate permitted by
applicable law, then any subsequent reduction in such interest rate will not
reduce the rate of interest payable pursuant to this Section 3.07 below the
maximum rate permitted by applicable law until the total amount of interest
accrued equals the amount of interest that would have accrued if such
otherwise 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
(including, without limitation, each outstanding Unapplied Downgrade 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, so long as the
Liquidity Provider is not the Controlling Party) may (x) convert the Final
Advance into a Base Rate Advance on the last day of an Interest Period for
such Advance by giving the Liquidity Provider no less than four Business
Days' prior written notice of such election or (y) elect to maintain the
Final Advance as a Base Rate Advance by not requesting a conversion of the
Final Advance to a LIBOR Advance under Clause (5) of the applicable Notice of
Borrowing (or, if such Final Advance is deemed to have been made, without
delivery of a Notice of Borrowing pursuant to Section 2.06, by requesting,
prior to 11:00 A.M. (New York City time) on the first Business Day
immediately following the Borrower's receipt of the applicable Termination
Notice, that such Final Advance not be converted from a Base Rate Advance to
a LIBOR Advance).
(c) Each LIBOR Advance shall bear interest during each Interest
Period at a rate per annum equal to the LIBOR Rate for such Interest Period
plus the Applicable Margin for such LIBOR Advance, payable in arrears on the
last day of such Interest Period and, in the event of the payment of
principal of such LIBOR Advance on a day other than such last day, on the
date of such payment (to the extent of interest accrued on the amount of
principal repaid).
(d) Each Base Rate Advance shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin for such Base Rate
Advance, payable in arrears on each Regular Distribution Date and, in the
event of the payment of principal of such Base Rate Advance on a day other
than a Regular Distribution Date, on the date of such payment (to the extent
of interest accrued on the amount of principal repaid).
(e) Each outstanding Unapplied Non-Extension Advance shall bear
interest in an amount equal to the Investment Earnings on amounts on deposit
in the Class A-1 Cash Collateral Account plus the Applicable Margin for such
Unapplied Non-Extension Advance on the amount of such Unapplied Non-Extension
Advance from time to time, payable in arrears on each Regular Distribution
Date.
(f) Each amount not paid when due hereunder (whether fees,
commissions, expenses or other amounts or, to the extent permitted by
applicable law, installments of interest on Advances but excluding Advances)
shall bear interest at a rate per annum equal to the Base Rate plus 2.00%
until paid.
(g) Each change in the Base Rate shall become effective
immediately. The rates of interest specified in this Section 3.07 with
respect to any Advance or other amount shall be referred to as the
"APPLICABLE LIQUIDITY RATE".
Section 3.08. REPLACEMENT OF BORROWER. From time to time and
subject to the successor Borrower's meeting the eligibility requirements set
forth in Section 6.9 of the Intercreditor Agreement applicable to the
Subordination Agent, upon the effective date and time specified in a written
and completed Notice of Replacement Subordination Agent in substantially the
form of Annex VI attached hereto (a "NOTICE OF REPLACEMENT SUBORDINATION
Agent") delivered to the Liquidity Provider by the then Borrower, the
successor Borrower designated therein shall be substituted for as the
Borrower for all purposes hereunder.
Section 3.09. FUNDING LOSS INDEMNIFICATION. The Borrower shall
pay to the Liquidity Provider, upon the request of the Liquidity Provider,
such amount or amounts as shall be sufficient (in the reasonable opinion of
the Liquidity Provider) to compensate it for any loss, cost, or expense
incurred by reason of the liquidation or redeployment of deposits or other
funds acquired by the Liquidity Provider to fund or maintain any LIBOR
Advance (but excluding loss of anticipated profits) incurred as a result of:
(1) Any repayment of a LIBOR Advance on a date other than the
last day of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance on
the date for borrowing specified in the relevant notice under Section
2.02.
Section 3.10. ILLEGALITY. Notwithstanding any other provision
in this Agreement, if any change in any applicable law, rule or regulation,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Liquidity
Provider (or its Facility 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 Facility 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 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, the Fee Letter duly executed on behalf of the Borrower
and the Tax Letter duly executed on behalf of Continental;
(ii) The Intercreditor Agreement duly executed on behalf
of each of the parties thereto (other than the Liquidity
Provider);
(iii) Fully executed copies of each of the Operative
Agreements executed and delivered on or before the Closing Date
(other than this Agreement, the Fee Letter and the Intercreditor
Agreement);
(iv) A copy of the Prospectus Supplement and specimen
copies of the Class A-1 Certificates;
(v) An executed copy of each document, instrument,
certificate and opinion delivered on or before the Closing Date
pursuant to the Class A-1 Trust Agreement, the Intercreditor
Agreement and the other Operative Agreements (in the case of each
such opinion, other than the opinion of counsel for the
Underwriters, either addressed to the Liquidity Provider or
accompanied by a letter from the counsel rendering such opinion
to the effect that the Liquidity Provider is entitled to rely on
such opinion as of its date as if it were addressed to the
Liquidity Provider);
(vi) Evidence that there shall have been made and shall be
in full force and effect, all filings, recordings and/or
registrations, and there shall have been given or taken any
notice or other similar action as may be reasonably necessary or,
to the extent reasonably requested by the Liquidity Provider,
reasonably advisable, in order to establish, perfect, protect and
preserve the right, title and interest, remedies, powers,
privileges, liens and security interests of, or for the benefit
of, the Trustees, the Borrower and the Liquidity Provider created
by the Operative Agreements executed and delivered on or prior to
the Closing Date;
(vii) An agreement from Continental, pursuant to which (i)
Continental agrees to provide copies of quarterly financial
statements and audited annual financial statements to the
Liquidity Provider, and such other information as the Liquidity
Provider shall reasonably request with respect to the
transactions contemplated by the Operative Agreements, in each
case, only to the extent that Continental is obligated to provide
such information pursuant to Section 8.2.1 of the Leases to the
parties thereto and (ii) Continental agrees to allow the
Liquidity Provider to inspect Continental's books and records
regarding such transactions, and to discuss such transactions
with officers and employees of Continental; and
(viii) Such other documents, instruments, opinions and
approvals pertaining to the transactions contemplated hereby or by
the other Operative Agreements 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 or
waived, all conditions precedent to the effectiveness of the other
Liquidity Facilities shall have been satisfied or waived, and all
conditions precedent to the purchase of the Certificates by the
Underwriters under the Underwriting Agreement shall have been satisfied
or waived.
(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, on or prior to the date of such Borrowing, the
Borrower shall have delivered a Notice of Borrowing which conforms to the
terms and conditions of this Agreement and has been completed as may be
required by the relevant form of the Notice of Borrowing for the type of
Advances requested.
ARTICLE V
COVENANTS
Section 5.01. AFFIRMATIVE COVENANTS OF THE BORROWER. So long as
any Advance shall remain unpaid or the Liquidity Provider shall have any
Maximum Commitment hereunder or the Borrower shall have any obligation to pay
any amount to the Liquidity Provider hereunder, the Borrower will, unless the
Liquidity Provider shall otherwise consent in writing:
(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 prior
written consent of the Liquidity Provider, which consent shall not be
unreasonably withheld or delayed.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. LIQUIDITY EVENTS OF DEFAULT. If (a) any Liquidity
Event of Default has occurred and is continuing and (b) there is a Performing
Note Deficiency, the Liquidity Provider may, in its discretion, deliver to
the Borrower a Termination Notice, the effect of which shall be to cause (i)
the obligation of the Liquidity Provider to make Advances hereunder to expire
on the fifth Business Day after the date on which such Termination Notice is
received by the Borrower, (ii) the Borrower to promptly request, and the
Liquidity Provider to promptly make, a Final Advance in accordance with
Section 2.02(d) hereof and Section 3.6(i) of the Intercreditor Agreement,
(iii) all other outstanding Advances to be automatically converted into Final
Advances for purposes of determining the Applicable Liquidity Rate for
interest payable thereon, and (iv) subject to Sections 2.07 and 2.09 hereof,
all Advances (including, without limitation, any Provider Advance and Applied
Provider Advance), any accrued interest thereon and any other amounts
outstanding hereunder to become immediately due and payable to the Liquidity
Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.01. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Liquidity Provider, and, in the case of an
amendment or of a waiver by the Borrower, the Borrower, and then such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given.
Section 7.02. NOTICES, ETC. Except as otherwise expressly
provided herein, all notices and other communications provided for hereunder
shall be in writing (including telecopier and mailed or delivered or sent by
telecopier):
Borrower: WILMINGTON TRUST COMPANY
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Liquidity Provider: LANDESBANK HESSEN-THURINGEN GIROZENTRALE
Main Tower
Neue Mainzer ▇▇▇. ▇▇ - ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Attention: Asset Finance
Telephone: ▇▇-▇▇-▇▇▇▇-▇▇▇▇
Telecopy: ▇▇-▇▇-▇▇▇▇-▇▇▇▇
with a copy of any Notice of Borrowing to:
LANDESBANK HESSEN-THURINGEN
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Project Finance/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or, as to each of the foregoing, at such other address as shall be designated
by such Person in a written notice to the others. All such notices and
communications shall be effective (i) if given by telecopier, when
transmitted to the telecopier number specified above, (ii) if given by mail,
when deposited in the mails addressed as specified above, and (iii) if given
by other means, when delivered at the address specified above, except that
written notices to the Liquidity Provider pursuant to the provisions of
Article II and Article III hereof shall not be effective until received by
the Liquidity Provider. A copy of all notices delivered hereunder to either
party shall in addition be delivered to each of the parties to the
Participation Agreements at their respective addresses set forth therein.
Section 7.03. NO WAIVER; REMEDIES. No failure on the part of
the Liquidity Provider to exercise, and no delay in exercising, any right
under this Agreement shall operate as a waiver thereof; nor shall any single
or partial exercise of any right under this Agreement preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
Section 7.04. FURTHER ASSURANCES. The Borrower agrees to do
such further acts and things and to execute and deliver to the Liquidity
Provider such additional assignments, agreements, powers and instruments as
the Liquidity Provider may reasonably require or deem advisable to carry into
effect the purposes of this Agreement and the other Operative Agreements or
to better 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 8.1 of the Participation Agreements with
respect to Owned Aircraft and Section 9.1 of the Participation Agreements
with respect to Leased Aircraft. 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
Section 3.01, 3.02 or 7.07 hereof or in the Fee Letter (regardless of whether
indemnified against pursuant to said Sections or in such Fee Letter)), that
may be imposed, incurred by or asserted against any Liquidity Indemnitee, in
any way relating to, resulting from, or arising out of or in connection with
any action, suit or proceeding by any third party against such Liquidity
Indemnitee and relating to this Agreement, the Fee Letter, the Intercreditor
Agreement or any Financing Agreement; PROVIDED, HOWEVER, that the Borrower
shall not be required to indemnify, protect, defend and hold harmless any
Liquidity Indemnitee in respect of any Expense of such Liquidity Indemnitee
to the extent such Expense is (i) attributable to the gross negligence or
willful misconduct of such Liquidity Indemnitee or any other Liquidity
Indemnitee, (ii) ordinary and usual operating overhead expense, or (iii)
attributable to the failure by such Liquidity Indemnitee or any other
Liquidity Indemnitee to perform or observe any agreement, covenant or
condition on its part to be performed or observed in this Agreement, the
Intercreditor Agreement, the Fee Letter, the Tax Letter or any other
Operative Agreement to which it is a party. The indemnities contained in
Section 8.1 or 9.1, as the case may be, of the Participation Agreements, and
the provisions of Sections 3.01, 3.02, 3.03, 3.09, 7.05 and 7.07 hereof,
shall survive the termination of this Agreement.
Section 7.06. LIABILITY OF THE LIQUIDITY PROVIDER. (a) Neither
the Liquidity Provider nor any of its officers, employees, directors or
Affiliates shall be liable or responsible for: (i) the use which may be made
of the Advances or any acts or omissions of the Borrower or any beneficiary
or transferee in connection therewith; (ii) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if such
documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; or (iii) the making of Advances by the Liquidity
Provider against delivery of a Notice of Borrowing and other documents which
do not comply with the terms hereof; PROVIDED, HOWEVER, that the Borrower
shall have a claim against the Liquidity Provider, and the Liquidity Provider
shall be liable to the Borrower, to the extent of any damages suffered by the
Borrower which were the result of (A) the Liquidity Provider's willful
misconduct or negligence in determining whether documents presented hereunder
comply with the terms hereof, or (B) any breach by the Liquidity Provider of
any of the terms of this Agreement, including, but not limited to, the
Liquidity Provider's failure to make lawful payment hereunder after the
delivery to it by the Borrower of a Notice of Borrowing strictly complying
with the terms and conditions hereof.
(b) Neither the Liquidity Provider nor any of its officers,
employees, directors or Affiliates shall be liable or responsible in any
respect for (i) any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with this Agreement or any Notice of Borrowing delivered
hereunder, or (ii) any action, inaction or omission which may be taken by it
in good faith, absent willful misconduct or negligence (in which event the
extent of the Liquidity Provider's potential liability to the Borrower shall
be limited as set forth in the immediately preceding paragraph), in
connection with this Agreement or any Notice of Borrowing.
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 Class A-1 Cash Collateral
Account. In addition, the Borrower shall pay any and all recording, stamp
and other similar taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing and recording of this
Agreement, any other Operative Agreement and such other documents, and agrees
to save the Liquidity Provider harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission
to pay such taxes or fees.
Section 7.08. BINDING EFFECT; PARTICIPATIONS. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrower and
the Liquidity Provider and their respective successors and assigns, except
that neither the Liquidity Provider (except as otherwise provided in this
Section 7.08) nor (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 (other than Continental and its Affiliates) as the Liquidity Provider
may in its sole discretion select, subject to the requirements of Section
7.08(b). No such granting of participations 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. 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 and the like as they pertain to the
Liquidity Provider shall be deemed also to include those of each of its
participants that are banks (subject, in each case, to the maximum amount
that would have been incurred by or attributable to the Liquidity Provider
directly if the Liquidity Provider, rather than the participant, had held the
interest participated).
(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 participation, the Transferee shall (i) represent to the Liquidity
Provider (for the benefit of the Liquidity Provider and the Borrower) either
(A) that it is incorporated under the laws of the United States or a state
thereof or (B) that under applicable law and treaties, no taxes will be
required to be withheld with respect to any payments to be made to such
Transferee in respect of this Agreement, (ii) furnish to the Liquidity
Provider and the Borrower either (x) a statement that it is incorporated
under the laws of the United States or a state thereof or (y) if it is not so
incorporated, two copies of a properly completed United States Internal
Revenue Service Form W-8ECI or Form W-8BEN, as appropriate, or other
applicable form, certificate or document prescribed by the Internal Revenue
Service certifying, in each case, such 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 W-8ECI or Form W-8BEN, as appropriate, (A) on or
before the date that any such form expires or becomes obsolete or (B) after
the occurrence of any event requiring a change in the most recent form
previously delivered by it and prior to the immediately following due date of
any payment by the Borrower hereunder, certifying in the case of a Form
W-8BEN or Form W-8ECI 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.
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 of mail), postage
prepaid, to each party hereto at its address set forth in Section 7.02
hereof, or at such other address of which the Liquidity Provider shall
have been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to ▇▇▇ in any other jurisdiction.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE
TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN
THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP
THAT IS BEING ESTABLISHED, including, without limitation, contract claims,
tort claims, breach of duty claims and all other common law and statutory
claims. The Borrower and the Liquidity Provider each warrant and represent
that it has reviewed this waiver with its legal counsel, and that it
knowingly and voluntarily waives its jury trial rights following consultation
with such legal counsel. THIS WAIVER IS IRREVOCABLE, AND CANNOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
(c) The Liquidity Provider hereby waives any immunity it may
have from the jurisdiction of the courts of the United States or of any State
and waives any immunity any of its properties located in the United States
may have from attachment or execution upon a judgment entered by any such
court under the United States Foreign Sovereign Immunities Act of 1976 or any
similar successor legislation.
Section 7.12. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 7.13. ENTIRETY. This Agreement, the Intercreditor
Agreement and the other Operative Agreements to which the Liquidity Provider
is a party constitute the entire agreement of the parties hereto with respect
to the subject matter hereof and supersedes all prior understandings and
agreements of such parties.
Section 7.14. HEADINGS. Section headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
Section 7.15. TRANSFER. The Liquidity Provider hereby
acknowledges and consents to the Transfer contemplated by the Assignment and
Assumption Agreement.
Section 7.16. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE
LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO
DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER,
SHALL BE UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN
EACH CASE STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first set forth above.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Subordination Agent,
as agent and trustee for the Class A-1 Trust,
as Borrower
By:_________________________________
Name:
Title:
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as Liquidity Provider
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
ANNEX I TO
REVOLVING CREDIT AGREEMENT
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "BORROWER"), hereby certifies to Landesbank Hessen-Thuringen
Girozentrale (the "LIQUIDITY PROVIDER"), with reference to the Revolving
Credit Agreement (2000-2A-1) dated as of November 28, 2000, 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 interest on the
Class A-1 Certificates which was payable on ____________, ____ (the
"DISTRIBUTION DATE") in accordance with the terms and provisions of the
Class A-1 Trust Agreement and the Class A-1 Certificates, which Advance
is requested to be made on ____________, ____. The Interest Advance
should be transferred to [name of bank/wire instructions/ABA number] in
favor of account number [ ], reference [ ].
(3) The amount of the Interest Advance requested hereby (i) is
$[_________________], to be applied in respect of the payment of the
interest which was due and payable on the Class A-1 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-1 Certificates, or
principal of, or interest or premium on, the Class A-2 Certificates,
the Class B Certificates or the Class C Certificates, (iii) was
computed in accordance with the provisions of the Class A-1
Certificates, the Class A-1 Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule
I), (iv) does not exceed the Maximum Available Commitment on the date
hereof, (v) does not include any amount of interest which was due and
payable on the Class A-1 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 Deposits 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 3.6(b) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, the making of the Interest Advance as requested by this Notice of
Borrowing shall automatically reduce, subject to reinstatement in accordance
with the terms of the Liquidity Agreement, the Maximum Available Commitment
by an amount equal to the amount of the Interest Advance requested to be made
hereby as set forth in clause (i) of paragraph (3) of this Notice of
Borrowing and such reduction shall automatically result in corresponding
reductions in the amounts available to be borrowed pursuant to a subsequent
Advance.
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:
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Interest Advance Notice of Borrowing]
ANNEX II TO
REVOLVING CREDIT AGREEMENT
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "BORROWER"), hereby certifies to Landesbank Hessen-Thuringen
Girozentrale (the "LIQUIDITY PROVIDER"), with reference to the Revolving
Credit Agreement (2000-2A-1) dated as of November 28, 2000, between the
Borrower and the Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Non-Extension Advance by the Liquidity Provider to be
used for the funding of the Class A-1 Cash Collateral Account in
accordance with Section 3.6(d) of the Intercreditor Agreement, which
Advance is requested to be made on __________, ____. The Non-Extension
Advance should be transferred to [name of bank/wire instructions/ABA
number] in favor of account number [ ], reference
[ ].
(3) The amount of the Non-Extension Advance requested hereby
(i) is $_______________.__, which equals the Maximum Available
Commitment on the date hereof and is to be applied in respect of the
funding of the Class A-1 Cash Collateral Account in accordance with
Section 3.6(d) of the Intercreditor Agreement, (ii) does not include
any amount with respect to the payment of the principal of, or premium
on, the Class A-1 Certificates, or principal of, or interest or premium
on, the Class A-2 Certificates, the Class B Certificates or the Class C
Certificates, (iii) was computed in accordance with the provisions of
the Class A-1 Certificates, the Class A-1 Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto
as Schedule I), and (iv) has not been and is not the subject of a prior
or contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the
Class A-1 Cash Collateral Account and apply the same in accordance with
the terms of Section 3.6(d) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Non-Extension Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the
obligation of the Liquidity Provider to make further Advances under the
Liquidity Agreement; and (B) following the making by the Liquidity Provider
of the Non-Extension Advance requested by this Notice of Borrowing, the
Borrower shall not be entitled to request any further Advances under the
Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the ____ day of _________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent, as Borrower
By:_________________________________
Name:
Title:
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Non-Extension Advance Notice of Borrowing]
ANNEX III TO
REVOLVING CREDIT AGREEMENT
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "BORROWER"), hereby certifies to Landesbank Hessen-Thuringen
Girozentrale (the "LIQUIDITY PROVIDER"), with reference to the Revolving
Credit Agreement (2000-2A-1) dated as of November 28, 2000, between the
Borrower and the Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Downgrade Advance by the Liquidity Provider to be used
for the funding of the Class A-1 Cash Collateral Account in accordance
with Section 3.6(c) of the Intercreditor Agreement by reason of the
downgrading of the short-term unsecured debt rating of the Liquidity
Provider issued by either Rating Agency below the Threshold Rating,
which Advance is requested to be made on __________, ____. The
Downgrade Advance should be transferred to [name of bank/wire
instructions/ABA number] in favor of account number [ ], reference
[ ].
(3) The amount of the Downgrade Advance requested hereby (i) is
$_______________.__, which equals the Maximum Available Commitment on
the date hereof and is to be applied in respect of the funding of the
Class A-1 Cash Collateral Account in accordance with Section 3.6(c) of
the Intercreditor Agreement, (ii) does not include any amount with
respect to the payment of the principal of, or premium on, the Class
A-1 Certificates, or principal of, or interest or premium on, the Class
A-2 Certificates, the Class B Certificates or the Class C Certificates,
(iii) was computed in accordance with the provisions of the Class A-1
Certificates, the Class A-1 Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule
I), and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the
Class A-1 Cash Collateral Account and apply the same in accordance with
the terms of Section 3.6(c) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Downgrade Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the
obligation of the Liquidity Provider to make further Advances under the
Liquidity Agreement; and (B) following the making by the Liquidity Provider
of the Downgrade Advance requested by this Notice of Borrowing, the Borrower
shall not be entitled to request any further Advances under the Liquidity
Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the ____ day of _________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent, as Borrower
By:_________________________________
Name:
Title:
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Downgrade Advance Notice of Borrowing]
ANNEX IV TO
REVOLVING CREDIT AGREEMENT
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "BORROWER"), hereby certifies to Landesbank Hessen-Thuringen
Girozentrale (the "LIQUIDITY PROVIDER"), with reference to the Revolving
Credit Agreement (2000-2A-1) dated as of November 28, 2000, between the
Borrower and the Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Final Advance by the Liquidity Provider to be used for
the funding of the Class A-1 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 ____________, ____. The Final Advance should be transferred
to [name of bank/wire instructions/ABA number] in favor of account
number [ ], reference
[ ].
(3) The amount of the Final Advance requested hereby (i) is
$_________________.__, which equals the Maximum Available Commitment on
the date hereof and is to be applied in respect of the funding of the
Class A-1 Cash Collateral Account in accordance with Section 3.6(i) of
the Intercreditor Agreement, (ii) does not include any amount with
respect to the payment of principal of, or premium on, the Class A-1
Certificates, or principal of, or interest or premium on, the Class A-2
Certificates, the Class B Certificates or the Class C Certificates,
(iii) was computed in accordance with the provisions of the Class A-1
Certificates, the Class A-1 Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule
I), and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the
Class A-1 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.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the ____ day of _________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent, as Borrower
By:_________________________________
Name:
Title:
----------
Bracketed language may be included at Borrower's option.
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Final Advance Notice of Borrowing]
ANNEX V TO
REVOLVING CREDIT AGREEMENT
NOTICE OF TERMINATION
[Date]
Wilmington Trust Company,
as Subordination Agent, as Borrower
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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Revolving Credit Agreement dated as of November 28, 2000 between
Wilmington Trust Company, as Subordination Agent, as agent and trustee
for the Continental Airlines Pass Through Trust, 2000-2A-1-[O/S], as
Borrower, and Landesbank Hessen-Thuringen Girozentrale (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.
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,
LANDESBANK HESSEN-THURINGEN GIROZENTRALE
as Liquidity Provider
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
cc: Wilmington Trust Company,
as Class A-1 Trustee
ANNEX VI TO
REVOLVING CREDIT AGREEMENT
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement dated as of November 28, 2000, between
Wilmington Trust Company, as Subordination Agent, as agent and trustee
for the Continental Airlines Pass Through Trust, 2000-2A-1-[O/S], as
Borrower, and Landesbank Hessen-Thuringen Girozentrale (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.
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: