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REVOLVING CREDIT AGREEMENT (2004-ERJ1)
Dated as of June 29, 2004
between
WILMINGTON TRUST COMPANY,
as Subordination Agent, as agent and trustee for the
Continental Airlines Pass Through Trust 2004-ERJ1,
as Borrower,
and
CITICORP NORTH AMERICA, INC., as Liquidity Provider
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Continental Airlines Pass Through Trust 2004-ERJ1
Continental Airlines 9.558% Pass Through Certificates,
Series 2004-ERJ1
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.........................................................1
Section 1.01 Certain Defined Terms......................................1
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENT.................................8
Section 2.01 The Advances...............................................8
Section 2.02 Making the Advances........................................8
Section 2.03 Fees......................................................10
Section 2.04 Reductions or Termination of the Maximum Commitment.......10
Section 2.05 Repayments of Interest Advances, the CNAI Special
Termination Advance or the Final Advance..................10
Section 2.06 Repayments of Provider Advances...........................11
Section 2.07 Payments to the Liquidity Provider Under the
Intercreditor Agreement...................................12
Section 2.08 Book Entries..............................................12
Section 2.09 Payments from Available Funds Only........................13
Section 2.10 Extension of the Expiry Date; Non-Extension Advance.......13
ARTICLE III OBLIGATIONS OF THE BORROWER......................................13
Section 3.01 Increased Costs...........................................13
Section 3.02 Capital Adequacy..........................................14
Section 3.03 Payments Free of Deductions...............................15
Section 3.04 Payments..................................................16
Section 3.05 Computations..............................................17
Section 3.06 Payment on Non-Business Days..............................17
Section 3.07 Interest..................................................17
Section 3.08 Replacement of Borrower...................................18
Section 3.09 Funding Loss Indemnification..............................18
Section 3.10 Illegality................................................19
Section 3.11 Mitigation................................................19
ARTICLE IV CONDITIONS PRECEDENT..............................................19
Section 4.01 Conditions Precedent to Effectiveness of Section 2.01.....19
Section 4.02 Conditions Precedent to Borrowing.........................21
ARTICLE V COVENANTS..........................................................21
Section 5.01 Affirmative Covenants of the Borrower.....................21
Section 5.02 Negative Covenants of the Borrower........................22
ARTICLE VI LIQUIDITY EVENTS OF DEFAULT AND SPECIAL TERMINATION...............22
Section 6.01 Liquidity Events of Default and Special Termination.......22
ARTICLE VII MISCELLANEOUS....................................................22
Section 7.01 Amendments, Etc...........................................22
Section 7.02 Notices, Etc..............................................23
Section 7.03 No Waiver; Remedies.......................................24
Section 7.04 Further Assurances........................................24
Section 7.05 Indemnification; Survival of Certain Provisions...........24
Section 7.06 Liability of the Liquidity Provider.......................24
Section 7.07 Costs, Expenses and Taxes.................................25
Section 7.08 Binding Effect; Participations............................26
Section 7.09 Severability..............................................27
Section 7.10 GOVERNING LAW.............................................27
Section 7.11 Submission to Jurisdiction; Waiver of Jury Trial..........27
Section 7.12 Execution in Counterparts.................................28
Section 7.13 Entirety..................................................28
Section 7.14 Headings..................................................28
Section 7.15 LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES..........28
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
ANNEX VII...CNAI Special Termination Advance Notice of Borrowing
ANNEX VIII..Notice of CNAI Special Termination
REVOLVING CREDIT AGREEMENT (2004-ERJ1)
This REVOLVING CREDIT AGREEMENT (2004-ERJ1), dated as of June 29,
2004, is made by and 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
Trust (as defined below) (the "BORROWER"), and CITICORP NORTH AMERICA, INC., a
Delaware corporation (the "LIQUIDITY PROVIDER").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the 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 Trust is issuing the Certificates;
WHEREAS, the Borrower, in order to support the timely payment of a
portion of the interest on the 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; and
WHEREAS, Citicorp, a Delaware corporation and an affiliate of the
Liquidity Provider (the "GUARANTOR") has entered into a guarantee, providing for
the full and unconditional guarantee of the Liquidity Provider's obligations
under this Agreement (the "GUARANTEE AGREEMENT").
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. CERTAIN DEFINED TERMS.
(a) As used in this Agreement and unless 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 COSTS" has the meaning assigned to such term in Section
3.01.
"ADVANCE" means an Interest Advance, a Final Advance, a CNAI Special
Termination Advance, a Provider Advance or an Applied Provider Advance, as the
case may be.
"AGREEMENT" means this Revolving Credit Agreement (2004-ERJ1), dated
as of June 29, 2004, between the Borrower and the Liquidity Provider, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
"APPLICABLE LIQUIDITY RATE" has the meaning assigned to such term in
Section 3.07(f).
"APPLICABLE MARGIN" means (i) with respect to any Unpaid Advance
(other than an Unapplied CNAI Special Termination Advance) or Applied Provider
Advance, 2.75% per annum, (ii) with respect to any Unapplied Provider Advance,
the rate per annum specified in the Fee Letter applicable to this Agreement and
(iii) with respect to any Unapplied CNAI Special Termination Advance, the margin
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).
"APPLIED CNAI SPECIAL TERMINATION ADVANCE" has the meaning assigned
to such term in Section 2.05.
"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, a 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 Certificate is outstanding, the
city and state in which the 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.
"CNAI SPECIAL TERMINATION ADVANCE" means an Advance made pursuant to
Section 2.02(e).
"CNAI SPECIAL TERMINATION NOTICE" means the Notice of CNAI Special
Termination substantially in the form of Annex VIII to this Agreement.
"CONSENT PERIOD" has the meaning assigned to such term in Section
2.10.
"DEPOSIT AGREEMENT" means the Deposit Agreement dated as of the date
hereof between ▇▇▇▇▇ Fargo Bank Northwest, National Association, as Escrow
Agent, and WestLB AG, New York Branch, as Depositary, pertaining to the
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).
"DOWNGRADE EVENT" means (i) a downgrading of the Guarantor's
short-term unsecured debt rating or short-term issuer credit rating, as the case
may be, issued by either Rating Agency below the applicable Threshold Rating or
(ii) the Guarantee Agreement ceasing to be in full force and effect or becoming
invalid or unenforceable or the Guarantor denying its liability thereunder,
unless with respect to clause (i) above, each Rating Agency shall have confirmed
in writing on or prior to the date of such downgrading that such downgrading
will not result in the downgrading, withdrawal or suspension of the ratings of
the Certificates, in which case such downgrading of the Guarantor's short-term
unsecured debt rating or short-term issuer credit rating, as the case may be,
shall not constitute a Downgrade Event and shall be referred to herein as a
"PROVIDER DOWNGRADE".
"EFFECTIVE DATE" has the meaning assigned to such term 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, based on or measured by
the income of, or franchise Taxes imposed on, the Liquidity Provider or its
Lending Office by the jurisdiction where such Liquidity Provider's principal
office or such Lending Office is located or any other taxing jurisdiction in
which such Tax is imposed as a result of the Liquidity Provider being, or having
been, organized in, or conducting, or having conducted, any activities unrelated
to the transactions contemplated by the Operative Agreements in, such
jurisdiction or (ii) withholding taxes, whether or not indemnified under Section
3.03.
"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 a change in applicable law after the
date hereof and, in the case of any successor Liquidity Provider, any
withholding Tax imposed by the United States except (a) if such Liquidity
Provider is, on the date it acquires its interest herein, a "resident" of an
Applicable Treaty jurisdiction entitled to claim the benefits of an Applicable
Treaty in respect of amounts payable hereunder, any such withholding Tax to the
extent imposed as a result of a change in applicable law (other than any
addition of, or change in, any "anti-treaty shopping", "limitation on benefits",
or similar provision in any treaty or other applicable law restricting the
availability of treaty benefits (including, without limitation any provision
similar to the Protocol Amending the Convention Between the United States of
America and the Kingdom of the Netherlands for the Avoidance of Double Taxation
and the Prevention of Fiscal Evasion with respect to Taxes on Income, signed at
Washington on October 13, 1993)) after the date such Liquidity Provider acquired
its interest herein and (b) any such withholding Tax to the extent the amount of
such withholding Tax imposed on such successor Liquidity Provider does not
exceed the amount of such withholding Tax that, in the absence of the transfer
to such Liquidity Provider, would have been an Indemnified Tax imposed on
payments to the predecessor Liquidity Provider pursuant to applicable law in
effect on the date such successor Liquidity Provider acquired its interest
herein, (ii) any Tax imposed or to the extent increased as a result of the
Liquidity Provider failing to deliver to the Borrower any certificate or
document (the delivery of which certificate or document in the good faith
judgment of the Liquidity Provider will not expose the Liquidity Provider to any
adverse consequence and which the Liquidity Provider 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, and (iii) any Tax imposed by a jurisdiction as a result of the
Liquidity Provider being, or having been, organized in, or maintaining, or
having maintained, its principal office or Lending Office in, or conducting, or
having conducted, any activities unrelated to the transactions contemplated by
the Operative Agreements in, such jurisdiction. For purposes of this definition,
"Applicable Treaty" means an income tax treaty between the United States and any
of Australia, Austria, Canada, France, Germany, Ireland, Japan, Luxembourg, The
Netherlands, Sweden, Switzerland or the United Kingdom.
"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 other than sales, use and V.A.T. taxes imposed on fees and expenses
payable pursuant to Section 7.07.
"EXPIRY DATE" means June 27, 2005 initially, or any date to which
the Expiry Date is extended pursuant to Section 2.10.
"FINAL ADVANCE" means an Advance made pursuant to Section 2.02(d).
"GUARANTOR" has the meaning assigned to such term in the preliminary
statements of this Agreement.
"GUARANTEE AGREEMENT" has the meaning assigned to such term in the
preliminary statements of this Agreement.
"INDEMNIFIED TAX" has the meaning assigned to such term in Section
3.03.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement dated as
of the date hereof, among the Trustee, the Liquidity Provider, the other
liquidity provider party thereto 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
(A) the Liquidity Provider's receipt of the Notice of Borrowing
for such LIBOR Advance or (B) the withdrawal of funds from the
Cash Collateral Account for the purpose of paying interest on
the 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.
"LENDING OFFICE" means the lending office of the Liquidity Provider
presently located at New York, New York, or such other lending office as the
Liquidity Provider from time to time shall notify the Borrower as its Lending
Office hereunder; provided that the Liquidity Provider shall not change its
Lending Office to another lending office outside the United States of America
except in accordance with Section 3.11 hereof.
"LIBOR ADVANCE" means an Advance bearing interest at a rate based
upon the LIBOR Rate.
"LIBOR RATE" means, with respect to any Interest Period,
(i) the rate per annum appearing on display page 3750 (British
Bankers Association-LIBOR) of the Telerate 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 $108,000,000) or (b) a
Continental Bankruptcy Event.
"LIQUIDITY INDEMNITEE" means (i) the Liquidity Provider, (ii) the
Guarantor, (iii) the directors, officers, employees and agents of the Liquidity
Provider and Guarantor, and (iv) the successors and permitted assigns of the
persons described in clauses (i) through (iii), inclusive.
"LIQUIDITY PROVIDER" has the meaning assigned to such term in the
recital of parties to this Agreement.
"MAXIMUM AVAILABLE COMMITMENT" means, 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, a CNAI Special Termination Advance or a Final
Advance, the Maximum Available Commitment shall be zero.
"MAXIMUM COMMITMENT" means initially $9,158,032.86, as the same may
be reduced from time to time in accordance with Section 2.04(a).
"NON-EXTENSION ADVANCE" means an Advance made pursuant to Section
2.02(b).
"NOTICE OF BORROWING" has the meaning assigned to such term in
Section 2.02(f).
"NOTICE OF REPLACEMENT SUBORDINATION AGENT" has the meaning assigned
to such term 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 final Prospectus Supplement dated
June 18, 2004 relating to the Certificates, as such Prospectus Supplement may be
amended or supplemented.
"PROVIDER ADVANCE" means a Downgrade Advance or a Non-Extension
Advance.
"PROVIDER DOWNGRADE" has the meaning assigned to such term in the
definition of "Downgrade Event".
"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).
"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 Certificates have been paid in full (or provision has
been made for such payment in accordance with the Intercreditor Agreement and
the Trust Agreement) or are otherwise no longer entitled to the benefits of this
Agreement; (iii) the date on which the Borrower 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 or CNAI Special 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 PROVIDER ADVANCE" means any portion of any Provider
Advance that is not an Applied Provider Advance.
"UNAPPLIED CNAI SPECIAL TERMINATION ADVANCE" means any portion of a
CNAI Special Termination Advance that is not an Applied CNAI Special Termination
Advance.
"UNPAID ADVANCE" has the meaning assigned to such term in Section
2.05.
(b) For the purposes of this Agreement, the following terms shall
have the respective meanings assigned to such terms in the Intercreditor
Agreement:
"ACCELERATION", "CASH COLLATERAL ACCOUNT", "CERTIFICATE",
"CERTIFICATEHOLDER", "CLOSING DATE", "CNAI FEE LETTER", "CNAI SUB-ACCOUNT",
"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", "LIQUIDITY
OBLIGATIONS", "LOAN TRUSTEE", "▇▇▇▇▇'▇", "NON-EXTENDED FACILITY", "NOTE PURCHASE
AGREEMENT", "OPERATIVE AGREEMENTS", "PARTICIPATION AGREEMENT", "PERFORMING
EQUIPMENT NOTE", "PERSON", "POOL BALANCE", "RATING AGENCIES", "RATINGS
CONFIRMATION", "REGULAR DISTRIBUTION DATES", "REPLACEMENT LIQUIDITY FACILITY",
"REQUIRED AMOUNT", "RESPONSIBLE OFFICER", "SCHEDULED PAYMENT", "SPECIAL
PAYMENT", "STANDARD & POOR'S", "STATED INTEREST RATE", "SUB-ACCOUNT",
"SUBORDINATION AGENT", "TAXES", "THRESHOLD RATING", "TRUST", "TRUST AGREEMENT",
"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 with respect to the
Certificates at the Stated Interest Rate therefor in accordance with Sections
3.6(a) and 3.6(b) of the Intercreditor Agreement. Each Interest Advance made
hereunder shall automatically reduce the Maximum Available Commitment and the
amount available to be borrowed hereunder by subsequent Advances by the amount
of such Interest Advance (subject to reinstatement as provided in the next
sentence). Upon repayment to the Liquidity Provider in full or in part of the
amount of any Interest Advance made pursuant to this Section 2.02(a), together
with accrued interest thereon (as provided herein), the Maximum Available
Commitment shall be reinstated by an amount equal to the amount of such Interest
Advance so repaid but not to exceed the Maximum Commitment; PROVIDED, HOWEVER,
that the Maximum Available Commitment shall not be so reinstated at any time if
(x) both a Performing Note Deficiency exists and a Liquidity Event of Default
shall have occurred and be continuing, or (y) a Final Advance, a Provider
Advance or a CNAI Special Termination Advance has been made.
(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)(i) 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)(i) within the time period specified in such Section 3.6(d)(i)) 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 CNAI Sub-Account of the
Cash Collateral Account in accordance with Sections 3.6(d)(i) and 3.6(f) of the
Intercreditor Agreement.
(c) A Downgrade Advance shall be made in a single Borrowing upon the
occurrence of a Downgrade Event (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 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
CNAI Sub-Account of the Cash Collateral Account in accordance with Sections
3.6(c) and 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(a) 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 CNAI Sub-Account of the Cash Collateral Account in accordance with
Sections 3.6(f) and 3.6(i) of the Intercreditor Agreement.
(e) A CNAI Special Termination Advance shall be made in a single
Borrowing upon the receipt by the Borrower of a CNAI Special Termination Notice
from the Liquidity Provider pursuant to Section 6.01(b), by delivery to the
Liquidity Provider of a written and completed Notice of Borrowing in
substantially the form of Annex VII, 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 CNAI Sub-Account of the Cash Collateral Account in
accordance with Sections 3.6(f) and 3.6(k) of the Intercreditor Agreement.
(f) 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), 2.02(d) or 2.02(e), as the case may be, given by the Borrower to the
Liquidity Provider. Each Notice of Borrowing shall be effective upon delivery of
a copy thereof to the Liquidity Provider's office at the address specified in
Section 7.02. 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.
(g) 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 Section 2.02(f), the Liquidity Provider shall have fully discharged
its obligations hereunder with respect to such Advance and an event of default
shall not have occurred hereunder. Following the making of any Advance pursuant
to Section 2.02(b), 2.02(c), 2.02(d) or 2.02(e) hereof to fund the CNAI
Sub-Account of the Cash Collateral Account, the Liquidity Provider shall have no
interest in or rights to the Cash Collateral Account, any Sub-Account thereof,
the funds constituting such Advance or any other amounts from time to time on
deposit in the Cash Collateral Account or any Sub-Account thereof; PROVIDED that
the foregoing shall not affect or impair the obligations of the Subordination
Agent to make the distributions contemplated by Section 3.6(e) or 3.6(f) of the
Intercreditor Agreement and PROVIDED FURTHER, that the foregoing shall not
affect or impair the rights of the Liquidity Provider to provide written
instructions with respect to the investment and reinvestment of amounts in the
CNAI Sub-Account of the Cash Collateral Account 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 applicable to this Agreement.
Section 2.04. REDUCTIONS OR TERMINATION OF THE MAXIMUM COMMITMENT.
(a) AUTOMATIC REDUCTION. Promptly following each date on which the
Required Amount with respect to this Agreement is reduced as a result of a
reduction (or deemed reduction) in the Pool Balance of the 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 Required Amount then in effect with respect to
this Agreement. 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, a CNAI
Special Termination 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, THE CNAI SPECIAL
TERMINATION ADVANCE 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, the CNAI Special Termination 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 a 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)); PROVIDED,
FURTHER, that amounts in respect of a CNAI Special Termination Advance withdrawn
from the CNAI Sub-Account of the Cash Collateral Account for the purpose of
paying interest on the Certificates in accordance with 3.6(f) of the
Intercreditor Agreement (the amount of an such withdrawal being an "APPLIED CNAI
SPECIAL TERMINATION ADVANCE") shall thereafter be treated as an Interest Advance
under this Agreement for the purposes of determining the Applicable Liquidity
Rate for interest payable thereon; and PROVIDED, FURTHER, that if, following the
making of a CNAI Special Termination Advance, the Liquidity Provider delivers a
Termination Notice to the Borrower pursuant to Section 6.01(a) hereof, such CNAI
Special Termination 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 of repayment thereof. The Borrower
and the Liquidity Provider agree that the repayment in full of each Interest
Advance, the CNAI Special Termination 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 CNAI
Sub-Account of the Cash Collateral Account and invested and withdrawn from the
CNAI Sub-Account of the Cash Collateral Account as set forth in Sections 3.6(c),
3.6(d), 3.6(e) and 3.6(f) of the Intercreditor Agreement. Subject to Sections
2.07 and 2.09, 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 hereof; PROVIDED, HOWEVER,
that amounts in respect of a Provider Advance withdrawn from the CNAI
Sub-Account of the Cash Collateral Account for the purpose of paying interest on
the 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(a) 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 CNAI Sub-Account of the
Cash Collateral Account pursuant to Section 3.6(f) of the Intercreditor
Agreement on account of a reduction (or deemed reduction) in the Required Amount
with respect to such Sub-Account, 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 CNAI Sub-Account of the 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 with respect to such
Sub-Account 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 CNAI Sub-Account of
the Cash Collateral Account after giving effect to any Applied Provider Advance
on the date of such replacement shall be reimbursed to the replaced Liquidity
Provider, but only to the extent such amounts are necessary to repay in full to
the replaced 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
and shall discharge in full the corresponding obligations of the Borrower
hereunder (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 the CNAI
Fee Letter, Section 9.1 of the Participation Agreements and 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 and other applicable 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 CNAI Sub-Account of the Cash Collateral Account shall be available to the
Borrower to make payments under this Agreement only to the extent and for the
purposes expressly contemplated in Section 3.6(f) of the Intercreditor
Agreement. Amounts on deposit in the other Sub-Account in respect of the
Certificates shall not be available to make payments under this Agreement.
Section 2.10. EXTENSION OF THE EXPIRY DATE; NON-EXTENSION ADVANCE.
No earlier than the 60th day and no later than the 40th day prior to the then
effective Expiry Date (unless such Expiry Date is on or after the date that is
15 days after the Final Legal Distribution Date for the 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 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)(i) 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 with respect to
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 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, subject to the provisions of Section
3.11, 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. From and after the Extension Effective
Date and prior to the occurrence of a Provider Downgrade, the Liquidity Provider
will be entitled to compensation pursuant to this Section 3.02 only to the
extent that the Liquidity Provider would have been so entitled if the Extension
Effective Date had not occurred. From and after the Extension Effective Date and
after the occurrence of a Provider Downgrade, the Liquidity Provider will be
entitled to compensation pursuant to this Section 3.02 only to the extent that
the Liquidity Provider would have been so entitled had the Liquidity Provider
made a Downgrade Advance upon the occurrence of such Provider Downgrade.
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 without reduction or withholding
for or on account of any present or future Taxes of any nature whatsoever now or
hereafter imposed, levied, collected, withheld or assessed, other than Excluded
Withholding Taxes (such non-excluded Taxes being referred to herein,
collectively, as "INDEMNIFIED TAXES" and, individually, as an "INDEMNIFIED TAX")
unless any such reduction or withholding is required by applicable law. If any
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 Taxes (including any additional Tax
required to be deducted or withheld 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) in the case of Indemnified Taxes, the amounts payable to the Liquidity
Provider shall be increased to the extent necessary to yield to the Liquidity
Provider (after deduction or withholding for or on account of all Indemnified
Taxes and any additional Taxes required to be deducted or withheld or payable by
the Liquidity Provider by reason of the receipt or accrual of the additional
amounts payable pursuant to this clause (ii)) interest or any other such amounts
payable under this Agreement at the rates or in the amounts specified in this
Agreement. If the Liquidity Provider (including a successor Liquidity Provider)
is not organized under the laws of the United States or any State thereof, to
the extent it is eligible to do so, the Liquidity Provider agrees to provide to
the Borrower, prior to the first date any amount is payable to it hereunder, two
executed original copies of 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. In addition, the Liquidity Provider will provide, from time to time
upon the reasonable request of the Borrower, such additional forms or
documentation as may be necessary to establish an available exemption from (or
an entitlement to a reduced rate of) withholding Tax on payments hereunder.
Within 30 days after the date of each payment hereunder, the Borrower shall
furnish to the Liquidity Provider an original or certified copy of a receipt (or
other documentary evidence reasonably acceptable to the Liquidity Provider)
evidencing the payment of the Taxes applicable to such payment.
(b) If the Liquidity Provider (including a successor Liquidity
Provider) is not organized under the laws of the United States or any State
thereof, all 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
that are imposed by a jurisdiction in which the Liquidity Provider is organized,
has its Lending Office or maintains its principal place of business unless such
reduction or withholding is required by applicable law. If any such Taxes are
required to be withheld or deducted from any Advances, the Liquidity Provider
shall (i) within the time prescribed therefor by applicable law pay to the
appropriate governmental or taxing authority the full amount of any such Taxes
(and any additional Taxes in respect of the additional amounts payable under
clause (ii) hereof) and make such reports or returns in connection therewith at
the time or times and in the manner prescribed by applicable law, and (ii) pay
to the Borrower an additional amount which (after deduction of all such Taxes)
shall be sufficient to yield to the Borrower the full amount that would have
been received by it had no such withholding or deduction been required. The
Borrower shall, for United States federal income tax purposes and for all
purposes hereunder, treat such payments as Interest Advances, and, as such, will
treat such payments as loans made by the Liquidity Provider to the Borrower,
unless otherwise required by law (it being understood and agreed that the
treatment of such additional amounts shall not reduce the Maximum Available
Commitment hereunder). Within 30 days after the date of each payment hereunder,
the Liquidity Provider shall furnish to the Borrower an original or certified
copy of a receipt (or other documentary evidence reasonably acceptable to the
Borrower) evidencing the payment of the Taxes applicable to such payment.
(c) If any exemption from, or reduction in the rate of, any Taxes
required to be deducted or withheld from amounts payable by the Liquidity
Provider hereunder 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 such 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
U.S. dollars, to the Liquidity Provider in immediately available funds, by wire
transfer to the account of Citicorp North America, Inc. at Citibank, N.A., ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ABA #▇▇▇▇▇▇▇▇▇, Account # 4063-2387, Reference:
Continental Airlines Pass Through Trust, Series 2004-ERJ1, Attention: ▇▇▇▇▇
▇▇▇▇▇▇; or to such other U.S. bank account as the Liquidity Provider may from
time to time direct the Subordination Agent.
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 CNAI Sub-Account of the
Cash Collateral Account to pay interest on the 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 CNAI Sub-Account of the 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) that 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 the
case may be, 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) Each Advance (including, without limitation, each outstanding
Unapplied Provider Advance and Unapplied CNAI Special Termination Advance) will
be either a Base Rate Advance or a LIBOR Advance as provided in this Section
3.07. 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 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.
(f) 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 the Borrower for all purposes hereunder.
Section 3.09. FUNDING LOSS INDEMNIFICATION. The Borrower shall pay
to the Liquidity Provider, upon the request of the Liquidity Provider, such
amount or amounts as shall be sufficient (in the reasonable opinion of the
Liquidity Provider) to compensate it for any loss, cost, or expense incurred by
reason of the liquidation or redeployment of deposits or other funds acquired by
the Liquidity Provider to fund or maintain any LIBOR Advance (but excluding loss
of anticipated profits) incurred as a result of:
(1) Any repayment of a LIBOR Advance on a date other than the last
day of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance on the
date for borrowing specified in the relevant notice under Section 2.02.
Section 3.10. ILLEGALITY. Notwithstanding any other provision in
this Agreement, if any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Liquidity Provider (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for the Liquidity Provider (or its Lending Office) to maintain or
fund its LIBOR Advances, then upon notice to the Borrower by the Liquidity
Provider, the outstanding principal amount of the LIBOR Advances shall be
converted to Base Rate Advances (a) immediately upon demand of the Liquidity
Provider, if such change or compliance with such request, in the judgment of the
Liquidity Provider, requires immediate repayment; or (b) at the expiration of
the last Interest Period to expire before the effective date of any such change
or request.
Section 3.11. MITIGATION. If a condition arises or an event occurs
which would, or would upon the giving of notice, result in the payment of any
additional costs or amounts pursuant to Section 3.01, 3.02 or 3.03 or require
the conversion of any Advance pursuant to Section 3.10, the Liquidity Provider,
promptly upon becoming aware of the same, shall notify the Borrower and shall
use reasonable efforts (consistent with applicable legal and regulatory
restrictions) to mitigate the effects of such condition or event, including the
designation of a different Lending Office or furnishing of the proper
certificates under any applicable tax laws, tax treaties and conventions to the
extent that such certificates are legally available to the Liquidity Provider;
PROVIDED, that the Liquidity Provider shall be under no obligation to take any
step that, in its good-faith opinion would (i) result in its incurring any
additional costs in performing its obligations hereunder unless the Borrower has
agreed to reimburse it therefor or (ii) be otherwise disadvantageous to the
Liquidity Provider in the reasonable judgment of the Liquidity Provider.
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 and
the Fee Letter applicable to this Agreement duly executed on
behalf of each of the parties thereto (other than the
Liquidity Provider);
(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 applicable to this
Agreement and the Intercreditor Agreement);
(iv) A copy of the Prospectus Supplement and specimen copies of
the Certificates; and
(v) An executed copy of each document, instrument, certificate
and opinion delivered on or before the Closing Date
pursuant to the Trust Agreement, the Intercreditor
Agreement and the other Operative Agreements (in the case
of each such opinion, other than the opinion of counsel
for the Underwriters, either addressed to the Liquidity
Provider or accompanied by a letter from the counsel
rendering such opinion to the effect that the Liquidity
Provider is entitled to rely on such opinion as of its
date as if it were addressed to the Liquidity Provider);
(vi) Evidence that there shall have been made and shall be in
full force and effect, all filings, recordings and/or
registrations, and there shall have been given or taken
any notice or other similar action as may be reasonably
necessary or, to the extent reasonably requested by the
Liquidity Provider, reasonably advisable, in order to
establish, perfect, protect and preserve the right, title
and interest, remedies, powers, privileges, liens and
security interests of, or for the benefit of, the Trustee,
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 Agreement shall have been satisfied or waived, all conditions
precedent to the effectiveness of the other Liquidity Facility 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 Advance 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 AND SPECIAL TERMINATION
Section 6.01. LIQUIDITY EVENTS OF DEFAULT AND SPECIAL TERMINATION.
(a) If (i) any Liquidity Event of Default has occurred and is continuing and
(ii) 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 (w) 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, (x) 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, (y) all other outstanding Advances to be automatically converted into
Final Advances for purposes of determining the Applicable Liquidity Rate for
interest payable thereon, and (z) 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.
(b) If the aggregate Pool Balance of the Certificates is greater
than the aggregate outstanding principal amount of the Equipment Notes (other
than any Equipment Notes previously sold or with respect to which the collateral
securing such Equipment Notes has been disposed of) at any time during the
18-month period prior to September 1, 2019, the Liquidity Provider may, in its
discretion, deliver to the Borrower a CNAI Special 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 CNAI Special Termination Notice is received by the Borrower, (ii) the
Borrower to promptly request, and the Liquidity Provider to promptly make, a
CNAI Special Termination Advance in accordance with Section 2.02(e) hereof and
Section 3.6(k) of the Intercreditor Agreement and (iii) 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 the Guarantor, 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: Citicorp North America, Inc.
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Reference: Continental Airlines Pass
Through Trust ▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
CITIBANK, N.A. Global Aviation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
Citicorp
Treasury Department
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Reference: Continental Airlines Pass
Through Trust 2004-ERJ1
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
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 9.1 of the Participation Agreements. In addition,
the Borrower agrees to indemnify, protect, defend and hold harmless the
Liquidity Provider from, against and in respect of, and shall pay on demand, all
Expenses of any kind or nature whatsoever (other than any Expenses of the nature
described in Section 3.01, 3.02 or 7.07 hereof or in the Fee Letter applicable
to this Agreement (regardless of whether indemnified against pursuant to said
Sections or in such Fee Letter)), that may be imposed on, 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 applicable to this Agreement, 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; (iii) attributable to the failure by the
Liquidity Provider to perform or observe any agreement, covenant or condition on
its part to be performed or observed in this Agreement or the Intercreditor
Agreement, or (iv) a Tax. The indemnities contained in Section 9.1 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 gross
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 or the Intercreditor 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. In no event, however, shall the Liquidity
Provider be liable on any theory of liability for any special, indirect,
consequential or punitive damages (including, without limitation, any loss of
profits, business or anticipated savings).
(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 gross 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 any waiver or
consent thereunder (whether or not the same shall become effective) or (iii) any
action or proceeding relating to any order, injunction, or other process or
decree restraining or seeking to restrain the Liquidity Provider from paying any
amount under this Agreement, the Intercreditor Agreement or any other Operative
Agreement or otherwise affecting the application of funds in the Cash Collateral
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 hold 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. (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.
Section 7.12. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 7.13. ENTIRETY. This Agreement, the Intercreditor Agreement
and the other Operative Agreements to which the Liquidity Provider is a party
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof and supersedes all prior understandings and agreements of
such parties.
Section 7.14. HEADINGS. Section headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
Section 7.15. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE
LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO
DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL
BE UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE
STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
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 Trust, as Borrower
By________________________________________
Name:
Title:
CITICORP NORTH AMERICA, INC.,
as Liquidity Provider
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 CITICORP NORTH AMERICA, INC. (the
"LIQUIDITY PROVIDER"), with reference to the Revolving Credit Agreement
(2004-ERJ1) dated as of June 29, 2004, 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
Certificates which was payable on ____________, ____ (the "DISTRIBUTION
DATE") in accordance with the terms and provisions of the Trust Agreement
and the 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 accordance with Sections 3.6(a) and
3.6(b) of the Intercreditor Agreement in respect of the payment of the
interest which was due and payable on the Certificates on the Distribution
Date, (ii) does not include any amount with respect to the payment of
principal of, or premium on, the Certificates, (iii) was computed in
accordance with the provisions of the Certificates, the 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 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 CITICORP NORTH AMERICA, INC. (the
"LIQUIDITY PROVIDER"), with reference to the Revolving Credit Agreement
(2004-ERJ1) dated as of June 29, 2004, 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 CNAI Sub-Account of the Cash Collateral Account in
accordance with Section 3.6(d)(i) 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 CNAI
Sub-Account of the Cash Collateral Account in accordance with Sections
3.6(d)(i) and 3.6(f) of the Intercreditor Agreement, (ii) does not include
any amount with respect to the payment of the principal of, or premium on,
the Certificates, (iii) was computed in accordance with the provisions of
the Certificates, the 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 CNAI
Sub-Account of the Cash Collateral Account and apply the same in
accordance with the terms of Sections 3.6(d)(i) and 3.6(f) 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 CITICORP NORTH AMERICA, INC. (the
"LIQUIDITY PROVIDER"), with reference to the Revolving Credit Agreement
(2004-ERJ1) dated as of June 29, 2004, 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 CNAI Sub-Account of the Cash Collateral Account in
accordance with Section 3.6(c) of the Intercreditor Agreement by reason of
the occurrence of a Downgrade Event, 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 CNAI
Sub-Account of the Cash Collateral Account in accordance with Sections
3.6(c) and 3.6(f) of the Intercreditor Agreement, (ii) does not include
any amount with respect to the payment of the principal of, or premium on,
the Certificates, (iii) was computed in accordance with the provisions of
the Certificates, the 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 CNAI
Sub-Account of the Cash Collateral Account and apply the same in
accordance with the terms of Sections 3.6(c) and 3.6(f) 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 CITICORP NORTH AMERICA, INC. (the
"LIQUIDITY PROVIDER"), with reference to the Revolving Credit Agreement
(2004-ERJ1) dated as of June 29, 2004, 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 CNAI Sub-Account of the 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 CNAI
Sub-Account of the Cash Collateral Account in accordance with Sections
3.6(f) and 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
Certificates, (iii) was computed in accordance with the provisions of the
Certificates, the 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 CNAI
Sub-Account of the Cash Collateral Account and apply the same in
accordance with the terms of Sections 3.6(f) and 3.6(i) of the
Intercreditor Agreement, (b) no portion of such amount shall be applied by
the Borrower for any other purpose and (c) no portion of such amount until
so applied shall be commingled with other funds held by the Borrower.
(5) The Borrower hereby requests that the Advance requested hereby
be a Base Rate Advance [and that such Base Rate Advance be converted into
a LIBOR Advance on the third Business Day following your receipt of this
notice.]1
--------
1 Bracketed language may be included at Borrower's option.
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:
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert copy of computations in accordance
with Final Advance Notice of Borrowing]
Annex V to
Revolving Credit Agreement
NOTICE OF TERMINATION
[Date]
Wilmington Trust Company,
as Subordination Agent, as Borrower
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Revolving Credit Agreement dated as of June 29, 2004, between
Wilmington Trust Company, as Subordination Agent, as agent and
trustee for the Continental Airlines Pass Through Trust
2004-ERJ1, as Borrower, and Citicorp North America, Inc. (the
"LIQUIDITY AGREEMENT")
Ladies and Gentlemen:
You are hereby notified that, pursuant to Section 6.01(a) 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,
CITICORP NORTH AMERICA, INC.,
as Liquidity Provider
By____________________________________
Name:
Title:
cc: Wilmington Trust Company,
as Trustee
Annex VI to
Revolving Credit Agreement
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement dated as of June 29, 2004, between Wilmington
Trust Company, as Subordination Agent, as agent and trustee for the
Continental Airlines Pass Through Trust, 2004-ERJ1, as Borrower, and
Citicorp North America, Inc. (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:
Annex VII to
Revolving Credit Agreement
CNAI SPECIAL TERMINATION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "BORROWER"), hereby certifies to CITICORP NORTH AMERICA, INC. (the
"LIQUIDITY PROVIDER"), with reference to the Revolving Credit Agreement
(2004-ERJ1) dated as of June 29, 2004, 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 CNAI Special Termination Advance by the Liquidity Provider
to be used for the funding of the CNAI Sub-Account of the Cash Collateral
Account in accordance with Section 3.6(k) of the Intercreditor Agreement
by reason of the receipt by the Borrower of a CNAI Special Termination
Notice from the Liquidity Provider with respect to the Liquidity
Agreement, which Advance is requested to be made on ____________, ____.
The CNAI Special Termination Advance should be transferred to [name of
bank/wire instructions/ABA number] in favor of account number [ __ ],
reference [ __ ].
(3) The amount of the CNAI Special Termination 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 CNAI Sub-Account of the Cash Collateral Account in
accordance with Sections 3.6(f) and 3.6(k) of the Intercreditor Agreement,
(ii) does not include any amount with respect to the payment of principal
of, or premium on, the Certificates, (iii) was computed in accordance with
the provisions of the Certificates, the 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 CNAI
Sub-Account of the Cash Collateral Account and apply the same in
accordance with the terms of Sections 3.6(f) and 3.6(k) 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 CNAI Special Termination 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 CNAI Special Termination 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 CNAI SPECIAL TERMINATION ADVANCE NOTICE OF BORROWING
[Insert copy of computations in accordance with CNAI Special
Termination Advance Notice of Borrowing]
Annex VIII to
Revolving Credit Agreement
NOTICE OF CNAI SPECIAL TERMINATION
[Date]
Wilmington Trust Company,
as Subordination Agent, as Borrower
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Revolving Credit Agreement dated as of June 29, 2004, between
Wilmington Trust Company, as Subordination Agent, as agent and
trustee for the Continental Airlines Pass Through Trust
2004-ERJ1, as Borrower, and Citicorp North America, Inc. (the
"LIQUIDITY AGREEMENT")
Ladies and Gentlemen:
You are hereby notified that, pursuant to Section 6.01(b) of the
Liquidity Agreement, by reason of the aggregate Pool Balance of the Certificates
exceeding the aggregate outstanding principal amount of the Equipment Notes
(other than any Equipment Notes previously sold or with respect to which the
collateral securing such Equipment Notes has been disposed of) during the
18-month period prior to September 1, 2019, we are giving this notice to you in
order to cause (i) our obligations to make Advances 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 CNAI Special Termination Advance
under the Liquidity Agreement pursuant to Section 3.6(k) of the Intercreditor
Agreement as a consequence of your receipt of this notice.
Terms used but not defined herein shall have the respective meanings
ascribed thereto in or pursuant to the Liquidity Agreement.
THIS NOTICE IS THE "NOTICE OF CNAI SPECIAL 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,
CITICORP NORTH AMERICA, INC.,
as Liquidity Provider
By________________________________________
Name:
Title:
cc: Wilmington Trust Company,
as Trustee