REVOLVING CREDIT AGREEMENT (2007-1A) dated as of April 10, 2007 between WILMINGTON TRUST COMPANY, as Subordination Agent, as Agent and Trustee for the Continental Airlines Pass Through Trust 2007-1A, as Borrower and RZB FINANCE LLC, as Liquidity...
(2007-1A)
dated
as
of April 10, 2007
between
WILMINGTON
TRUST COMPANY,
as
Subordination Agent,
as
Agent
and Trustee for the
Continental
Airlines Pass Through Trust 2007-1A,
as
Borrower
and
RZB
FINANCE LLC,
as
Liquidity Provider
__________________________
Relating
to Continental Airlines
Pass
Through Trust 2007-1A 5.983% Continental Airlines
Pass
Through Certificates, Series 2007-1A
__________________________
Page
i
TABLE
OF CONTENTS
(continued)
Page
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Section
7.01 Amendments, Etc.
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22
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Section
7.02 Notices, Etc.
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22
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Section
7.03 No Waiver; Remedies
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23
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Section
7.04 Further Assurances
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23
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Section
7.05 Indemnification; Survival of Certain
Provisions
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23
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Section
7.06 Liability of the Liquidity
Provider
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23
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Section
7.07 Costs, Expenses and Taxes
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24
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Section
7.08 Binding Effect; Participations
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24
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Section
7.09 Severability
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26
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Section
7.10 GOVERNING LAW
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26
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26
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Section
7.12 Execution in Counterparts
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27
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Section
7.13 Entirety
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27
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Section
7.14 Headings
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27
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Section
7.15 Transfer
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27
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Section
7.16 LIQUIDITY PROVIDER’S OBLIGATION TO MAKE
ADVANCES
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27
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Section
7.17 Patriot Act
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27
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Schedule
A
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Schedule
B
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Annex
I
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Annex II
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Annex III
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Annex IV
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Annex V
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Annex VI
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REVOLVING
CREDIT AGREEMENT (2007-1A)
THIS
REVOLVING CREDIT AGREEMENT (2007-1A)
dated as
of April 10, 2007, between WILMINGTON
TRUST COMPANY,
a
Delaware corporation, not in its individual capacity but solely as Subordination
Agent under the Intercreditor Agreement (each as defined below), as agent and
trustee for the Class A Trust (as defined below) (the “Borrower”),
and
RZB
FINANCE LLC,
a
Delaware limited liability company (the “Liquidity
Provider”).
W
I T
N E S S E T H:
WHEREAS,
pursuant to the Class A Trust Agreement (such term and all other
capitalized terms used in these recitals having the meanings set forth or
referred to in Section 1.01), the Class A Trust is issuing the
Class A Certificates;
WHEREAS,
the
Borrower, in order to support the timely payment of a portion of the interest
on
the Class A 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,
Raiffeisen Zentralbank Österreich Aktiengesellschaft, a banking institution
organized and existing under the laws of the Republic of Austria (the
“Guarantor”),
will
guarantee in full, pursuant to a master guaranty certificate dated as of the
date hereof and issued by the Guarantor pursuant to that certain Master Guaranty
Agreement, dated as of September 1, 1997, issued by the Guarantor (collectively,
the “Guarantee
Agreement”),
the
obligations of the Liquidity Provider under this Agreement.
NOW,
THEREFORE,
in
consideration of the premises, the parties hereto agree as follows:
Section
1.01 Certain
Defined Terms.
(a) Definitions.
As used
in this Agreement and unless otherwise expressly indicated, or unless the
context clearly requires otherwise, the following capitalized terms shall have
the following respective meanings for all purposes of this
Agreement:
“Additional
Cost”
has
the
meaning assigned to such term in Section 3.01.
“Advance”
means
an Interest Advance, a Final Advance, a Provider Advance or an Applied Provider
Advance, as the case may be.
“Applicable
Liquidity Rate”
has
the
meaning assigned to such term in Section 3.07(g).
“Applicable
Margin”
means
(x) with respect to any Unpaid Advance or Applied Provider Advance, the per
annum rate specified in item 1 of Schedule A, or (y) with respect to
any Unapplied Provider Advance, the rate per annum specified in the Fee
Letter.
“Applied
Downgrade Advance”
has
the
meaning assigned to such term in Section 2.06(a).
“Applied
Non-Extension Advance”
has
the
meaning assigned to such term in Section 2.06(a).
“Applied
Provider Advance”
has
the
meaning assigned to such term in Section 2.06(a).
“Assignment
and Assumption Agreement”
means
the Assignment and Assumption Agreement to be entered into between the Borrower
and the trustee of the Successor Trust, substantially in the form of
Exhibit C to the Trust Supplement No. 2007-1A-O, dated as of the date
hereof, relating to the Class A Trust.
“Base
Rate”
means
a
fluctuating interest rate per annum in effect from time to time, which rate
per
annum shall at all times be equal to (a) the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if
such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or if such rate is not so published for any day that
is a Business Day, the average of the quotations for such day for such
transactions received by the Liquidity Provider from three Federal funds brokers
of recognized standing selected by it, plus (b) one-quarter of one percent
(¼ of 1%).
“Base
Rate Advance”
means
an Advance that bears interest at a rate based upon the Base Rate.
“Borrower”
has
the
meaning assigned to such term in the recital of parties to this
Agreement.
“Borrowing”
means
the making of Advances requested by delivery of a Notice of
Borrowing.
“Business
Day”
means
any day other than a Saturday or Sunday or a day on which commercial banks
are
required or authorized to close in Houston, Texas, New York, New York or, so
long as any Class A Certificate is outstanding, the city and state in which
the Class A 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 in dollars are carried on in the London
interbank market.
“Consent
Period”
has
the
meaning specified in Section 2.10.
“Deposit
Agreement”
means
the Deposit Agreement dated as of the date hereof between Xxxxx Fargo Bank
Northwest, National Association, as Escrow Agent, and Credit Suisse, New York
Branch, as Depositary, pertaining to the Class A 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
a
downgrading of the Guarantor’s short-term unsecured debt rating or short-term
issuer credit rating (as applicable) issued by either Rating Agency below the
applicable Threshold Rating or the Guarantee ceases to be in full force and
effect or becomes invalid or unenforceable or the Guarantor denies its liability
thereunder.
“Effective
Date”
has
the
meaning specified in Section 4.01. The delivery of the certificate of the
Liquidity Provider contemplated by Section 4.01(e) shall be conclusive
evidence that the Effective Date has occurred.
“Excluded
Taxes”
means
(i) taxes imposed on the overall net income of the Liquidity Provider or of
its Facility Office by the jurisdiction where such Liquidity Provider’s
principal office or such Facility Office is located, and (ii) Excluded
Withholding Taxes.
“Excluded
Withholding Taxes”
means
(i) withholding Taxes imposed by the United States except to the extent
that such United States withholding Taxes are imposed or increased as a result
of any change in applicable law (excluding from change in applicable law for
this purpose a change in an applicable treaty or other change in law affecting
the applicability of a treaty) after the date hereof, or in the case of a
successor Liquidity Provider (including a transferee of an Advance) or Facility
Office, after the date on which such successor Liquidity Provider obtains its
interest or on which the Facility Office is changed, and (ii) any
withholding Taxes imposed by the United States which are imposed or increased
as
a result of the Liquidity Provider failing to deliver to the Borrower any
certificate or document (which certificate or document in the good faith
judgment of the Liquidity Provider it is legally entitled to provide) which
is
reasonably requested by the Borrower to establish that payments under this
Agreement are exempt from (or entitled to a reduced rate of) withholding
Tax.
“Expenses”
means
liabilities, obligations, damages, settlements, penalties, claims, actions,
suits, costs, expenses, and disbursements (including, without limitation,
reasonable fees and disbursements of legal counsel and costs of investigation),
provided that Expenses shall not include any Taxes.
“Expiry
Date”
means
the “Initial Expiry Date” specified in item 2 of Schedule A, initially, or
any date to which the Expiry Date is extended pursuant to
Section 2.10.
“Facility
Office”
means
the office of the Liquidity Provider presently located at Bethel, Connecticut,
or such other office as the Liquidity Provider from time to time shall notify
the Borrower as its Facility Office hereunder; provided that the Liquidity
Provider shall not change its Facility Office to another Facility Office outside
the United States of America except in accordance with Section 3.01, 3.02
or 3.03 hereof.
“Final
Advance”
means
an Advance made pursuant to Section 2.02(d).
“GAAP”
means
generally accepted accounting principles as set forth in the statements of
financial accounting standards issued by the Financial Accounting Standards
Board of the
American
Institute of Certified Public Accountants, as such principles may at any time
or
from time to time be varied by any applicable financial accounting rules or
regulations issued by the Securities and Exchange Commission and, with respect
to any person, shall mean such principles applied on a basis consistent with
prior periods except as may be disclosed in such person’s financial
statements.
“Guarantee
Agreement”
has
the
meaning assigned to such term in the recitals to this Agreement.
“Guarantor”
has
the
meaning assigned to such term in the recitals to this Agreement.
“Intercreditor
Agreement”
means
the Intercreditor Agreement dated as of the date hereof among the Trustees,
the
Liquidity Provider, the liquidity provider under the other Liquidity Facility
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 LIBOR Business Day following either (x) the
date of the Liquidity Provider’s receipt of the Notice of Borrowing for such
LIBOR Advance or (y) the date of the withdrawal of funds from the
Class A Cash Collateral Account for the purpose of paying interest on the
Class A Certificates as contemplated by Section 2.06(a) hereof and, in
either case, ending on the next Regular Distribution Date (or, if such day
is
not a Business Day, the next succeeding Business Day); and
(ii) each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the next Regular Distribution Date (or, if such
day is not a Business Day, the next succeeding Business Day);
provided,
however, that if (x) the Final Advance shall have been made, or
(y) other outstanding Advances shall have been converted into the Final
Advance, then the Interest Periods shall be successive periods of one month
beginning on the third LIBOR Business Day following the Liquidity Provider’s
receipt of the Notice of Borrowing for such Final Advance (in the case of
clause (x) above) or the Regular Distribution Date (or, if such day is not
a Business Day, the next succeeding Business Day) following such conversion
(in
the case of clause (y) above).
“LIBOR
Advance”
means
an Advance bearing interest at a rate based upon the LIBOR Rate.
“LIBOR
Business Day”
means
any day on which dealings in dollars are carried on in the London interbank
market.
“LIBOR
Rate”
means,
with respect to any Interest Period,
(i) the
rate
per annum appearing on display page Reuters Screen LIBOR01 Page (or any
successor or substitute therefor) at approximately 11:00 a.m. (London time)
two LIBOR 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 LIBOR
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 the amount specified in item 3 on Schedule A 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 the Guarantor,
and
(iv) the successors and permitted assigns of the persons described in
clauses (i), (ii) and (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 or a Final Advance, the Maximum
Available Commitment shall be zero.
“Maximum
Commitment”
means
initially the amount specified in item 4 on Schedule A, as such amount may
be
reduced from time to time in accordance with Section 2.04(a).
“Non-Excluded
Tax”
has
the
meaning specified in Section 3.03.
“Non-Extension
Advance”
means
an Advance made pursuant to Section 2.02(b).
“Notice
of Borrowing”
has
the
meaning specified in Section 2.02(e).
“Notice
of Replacement Subordination Agent”
has
the
meaning specified in Section 3.08.
“Performing
Note Deficiency”
means
any time that less than 65% of the then aggregate outstanding principal amount
of all Equipment Notes are Performing Equipment Notes.
“Prospectus
Supplement”
means
the final Prospectus Supplement dated the date specified in item 5 on Schedule
A
relating to the Certificates, as such Prospectus Supplement may be amended
or
supplemented.
“Provider
Advance”
means
a
Downgrade Advance or a Non-Extension Advance.
“Regulatory
Change”
has
the
meaning assigned to such term in Section 3.01.
“Replenishment
Amount”
has
the
meaning assigned to such term in Section 2.06(b).
“Required
Amount”
means,
for any day, the sum of the aggregate amount of interest, calculated at the
rate
per annum equal to the Stated Interest Rate for the Class A Certificates,
that would be payable on the Class A Certificates on each of the three
successive semi-annual Regular Distribution Dates immediately following such
day
or, if such day is a Regular Distribution Date, on such day and the succeeding
two semi-annual Regular Distribution Dates, in each case calculated on the
basis
of the Pool Balance of the Class A Certificates on such day and without regard
to expected future distributions of principal on the Class A
Certificates.
“Successor
Trust”
means
Continental Airlines Pass Through Trust 2007-1A-S.
“Termination
Date”
means
the earliest to occur of the following: (i) the Expiry Date; (ii) the
date on which the Borrower delivers to the Liquidity Provider a certificate,
signed by a Responsible Officer of the Borrower, certifying that all of the
Class A Certificates have been paid in full (or provision has been made for
such payment in accordance with the Intercreditor Agreement and the Trust
Agreements) or are otherwise no longer entitled to the benefits of this
Agreement; (iii) the date on which the Borrower delivers to the Liquidity
Provider a certificate, signed by a Responsible Officer of the Borrower,
certifying that a Replacement Liquidity Facility has been substituted for this
Agreement in full pursuant to Section 3.5(e) of the Intercreditor
Agreement; (iv) the fifth Business Day following the receipt by the
Borrower of a Termination Notice from the Liquidity Provider pursuant to
Section 6.01 hereof; and (v) the date on which no Advance is or may
(including by reason of reinstatement as herein provided) become available
for a
Borrowing hereunder.
“Termination
Notice”
means
the Notice of Termination substantially in the form of Annex V to this
Agreement.
“Transferee”
has
the
meaning assigned to such term in Section 7.08(b).
“Unapplied
Downgrade Advance”
means
any Downgrade Advance other than an Applied Downgrade Advance.
“Unapplied
Non-Extension Advance”
means
any Non-Extension Advance other than an Applied Non-Extension
Advance.
“Unapplied
Provider Advance”
means
any Provider Advance other than an Applied Provider Advance.
“Unpaid
Advance”
has
the
meaning assigned to such term in Section 2.05.
(b) Terms
Defined in the Intercreditor Agreement.
For all
purposes of this Agreement, the following terms shall have the respective
meanings assigned to such terms in the Intercreditor Agreement:
“Acceleration”,
“Aircraft”,
“Certificate”,
“Class
A Certificates”,
“Class
A Cash Collateral Account”,
“Class
A Trust”,
“Class
A Trust Agreement”,
“Class
A Trustee”,
“Class
B Certificates”,
“Class
C Certificates”,
“Closing
Date”,
“Continental”,
“Continental
Bankruptcy Event”,
“Controlling
Party”,
“Corporate
Trust Office”,
“Delivery
Period Expiry Date”,
“Distribution
Date”,
“Downgraded
Facility”,
“Equipment
Notes”,
“Fee
Letter”,
“Final
Legal Distribution Date”,
“Financing
Agreement”,
“Investment
Earnings”,
“Liquidity
Facility”,
“Liquidity
Obligations”,
“Loan
Trustee”,
“Non-Extended
Facility”,
“Note
Purchase Agreement”,
“Operative
Agreements”,
“Participation
Agreement”,
“Performing
Equipment Note”,
“Person”,
“Pool
Balance”,
“Rating
Agencies”,
“Regular
Distribution Date”,
“Replacement
Liquidity Facility”,
“Responsible
Officer”,
“Scheduled
Payment”,
“Special
Payment”,
“Stated
Interest Rate”,
“Subordination
Agent”,
“Taxes”,
“Threshold
Rating”,
“Transfer”,
“Trust
Agreement”,
“Trustee”,
“Underwriters”,
“Underwriting
Agreement”,
and
“Written
Notice”.
AMOUNT
AND TERMS OF THE COMMITMENT
Section
2.01 The
Advances.
The
Liquidity Provider hereby irrevocably agrees, on the terms and conditions
hereinafter set forth, to make Advances to the Borrower from time to time on
any
Business Day during the period from the Effective Date until 1:00 p.m. (New
York City time) on the Expiry Date (unless the obligations of the Liquidity
Provider shall be earlier terminated in accordance with the terms of
Section 2.04(b)) in an aggregate amount at any time outstanding not to
exceed the Maximum Commitment.
Section
2.02 Making
the Advances.
(a) Interest
Advances shall be made in one or more Borrowings by delivery to the Liquidity
Provider of one or more written and completed Notices of Borrowing in
substantially the form of Annex I attached hereto, signed by a Responsible
Officer of the Borrower, in an amount not exceeding the Maximum Available
Commitment at such time and shall be used solely for the payment when due of
interest on the Class A Certificates at the Stated Interest Rate therefor
in accordance with Section 3.5(a) of the Intercreditor Agreement. Each
Interest Advance made hereunder shall automatically reduce the Maximum Available
Commitment and the amount available to be borrowed hereunder by subsequent
Advances by the amount of such Interest Advance (subject to reinstatement as
provided in the next sentence). Upon repayment to the Liquidity Provider in
full
of the amount of any Interest Advance made pursuant to this
Section 2.02(a), together with accrued interest thereon (as provided
herein), the Maximum Available Commitment shall be reinstated by the
amount
of
such repaid Interest Advance but not to exceed the Maximum Commitment; provided,
however, that the Maximum Available Commitment shall not be so reinstated at
any
time if (x) (i) a Liquidity Event of Default shall have occurred and be
continuing and (ii) there is a Performing Note Deficiency or (y) a Final
Advance, a Downgrade Advance or a Non-Extension Advance shall have been made
or
an Interest Advance shall have been converted into a Final Advance.
(b) A
Non-Extension Advance shall be made in a single Borrowing if this Agreement
is
not extended in accordance with Section 3.5(d) of the Intercreditor
Agreement (unless a Replacement Liquidity Facility to replace this Agreement
shall have been delivered to the Borrower as contemplated by said
Section 3.5(d) within the time period specified in such Section) by
delivery to the Liquidity Provider of a written and completed Notice of
Borrowing in substantially the form of Annex II attached hereto, signed by
a Responsible Officer of the Borrower, in an amount equal to the Maximum
Available Commitment at such time, and shall be used to fund the Class A
Cash Collateral Account in accordance with said Section 3.5(d) and
Section 3.5(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 3.5(c) of the Intercreditor
Agreement) unless a Replacement Liquidity Facility to replace this Agreement
shall have been previously delivered to the Borrower in accordance with said
Section 3.5(c), by delivery to the Liquidity Provider of a written and
completed Notice of Borrowing in substantially the form of Annex III
attached hereto, signed by a Responsible Officer of the Borrower, in an amount
equal to the Maximum Available Commitment at such time, and shall be used to
fund the Class A Cash Collateral Account in accordance with said
Section 3.5(c) and Section 3.5(f) of the Intercreditor Agreement. Upon
the occurrence of a Downgrade Event, the Liquidity Provider shall promptly
deliver notice thereof to the Borrower, the Class A Trustee and
Continental.
(d) A
Final
Advance shall be made in a single Borrowing upon the receipt by the Borrower
of
a Termination Notice from the Liquidity Provider pursuant to Section 6.01
hereof by delivery to the Liquidity Provider of a written and completed Notice
of Borrowing in substantially the form of Annex IV attached hereto, signed
by a Responsible Officer of the Borrower, in an amount equal to the Maximum
Available Commitment at such time, and shall be used to fund the Class A
Cash Collateral Account (in accordance with Sections 3.5(f) and 3.5(i) of
the Intercreditor Agreement).
(e) Each
Borrowing shall be made on notice in writing (a “Notice
of Borrowing”)
in
substantially the form required by Section 2.02(a), 2.02(b), 2.02(c) or
2.02(d), as the case may be, given by the Borrower to the Liquidity Provider.
If
a Notice of Borrowing is delivered by the Borrower in respect of any Borrowing
no later than 1:00 p.m. (New York City time) on a Business Day, upon
satisfaction of the conditions precedent set forth in Section 4.02 with
respect to a requested Borrowing, the Liquidity Provider shall make available
to
the Borrower, in accordance with its payment instructions, the amount of such
Borrowing in U.S. dollars and immediately available funds, before 4:00 p.m.
(New York City time) on such Business Day or on such later Business Day
specified in such Notice of Borrowing. If a Notice of Borrowing is delivered
by
the Borrower in respect of any Borrowing on a day that is not a Business Day
or
after 1:00 p.m. (New York City time) on a Business Day, upon satisfaction
of the conditions
precedent
set forth in Section 4.02 with respect to a requested Borrowing, the
Liquidity Provider shall make available to the Borrower, in accordance with
its
payment instructions, the amount of such Borrowing in U.S. dollars and in
immediately available funds, before 12:00 Noon (New York City time) on the
first
Business Day next following the day of receipt of such Notice of Borrowing
or on
such later Business Day specified by the Borrower in such Notice of Borrowing.
Payments of proceeds of a Borrowing shall be made by wire transfer of
immediately available funds to the Borrower in accordance with such wire
transfer instructions as the Borrower shall furnish from time to time to the
Liquidity Provider for such purpose. Each Notice of Borrowing shall be
irrevocable and binding on the Borrower. Each Notice of Borrowing shall be
effective upon delivery of a copy thereof to the Liquidity Provider at the
address specified pursuant to Section 7.02.
(f) Upon
the
making of any Advance requested pursuant to a Notice of Borrowing, in accordance
with the Borrower’s payment instructions, the Liquidity Provider shall be fully
discharged of its obligation hereunder with respect to such Notice of Borrowing,
and the Liquidity Provider shall not thereafter be obligated to make any further
Advances hereunder in respect of such Notice of Borrowing to the Borrower or
to
any other Person. If the Liquidity Provider makes an Advance requested pursuant
to a Notice of Borrowing before 12:00 Noon (New York City time) on the second
Business Day after the date of payment specified in said Section 2.02(e),
the Liquidity Provider shall have fully discharged its obligations hereunder
with respect to such Advance and an event of default shall not have occurred
hereunder. Following the making of any Advance pursuant to Section 2.02(b),
(c) or (d) hereof to fund the Class A Cash Collateral Account,
the Liquidity Provider shall have no interest in or rights to the Class A
Cash Collateral Account, the funds constituting such Advance or any other
amounts from time to time on deposit in the Class A Cash Collateral
Account; provided
that the
foregoing shall not affect or impair the obligations of the Subordination Agent
to make the distributions contemplated by Section 3.5(e) or (f) of the
Intercreditor Agreement, and provided
further,
that
the foregoing shall not affect or impair the rights of the Liquidity Provider
to
provide written instructions with respect to the investment and reinvestment
of
amounts in the Cash Collateral Accounts to the extent provided in
Section 2.2(b) of the Intercreditor Agreement. By paying to the Borrower
proceeds of Advances requested by the Borrower in accordance with the provisions
of this Agreement, the Liquidity Provider makes no representation as to, and
assumes no responsibility for, the correctness or sufficiency for any purpose
of
the amount of the Advances so made and requested.
Section
2.03 Fees.
The
Borrower agrees to pay to the Liquidity Provider the fees set forth in the
Fee
Letter 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 is reduced as a result
of a reduction in the Pool Balance of the Class A Certificates or
otherwise, the Maximum Commitment shall automatically be reduced to an amount
equal to such reduced Required Amount (as calculated by the Borrower); provided
that on the first Regular Distribution Date, the Maximum Commitment shall
automatically be reduced to the then Required Amount. The Borrower shall give
notice of any such automatic reduction of the Maximum Commitment to the
Liquidity Provider within two Business Days thereof. The failure
by
the
Borrower to furnish any such notice shall not affect such automatic reduction
of
the Maximum Commitment.
(b) Termination.
Upon
the making of any Provider Advance or the making of or conversion to a Final
Advance hereunder or the occurrence of the Termination Date, the obligation
of
the Liquidity Provider to make further Advances hereunder shall automatically
and irrevocably terminate, and the Borrower shall not be entitled to request
any
further Borrowing hereunder.
Section
2.05 Repayments
of Interest Advances or the Final Advance.
Subject
to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby agrees, without
notice of an Advance or demand for repayment from the Liquidity Provider (which
notice and demand are hereby waived by the Borrower), to pay, or to cause to
be
paid, to the Liquidity Provider on each date on which the Liquidity Provider
shall make an Interest Advance or the Final Advance, an amount equal to
(a) the amount of such Advance (any such Advance, until repaid, is referred
to herein as an “Unpaid
Advance”)
(if
multiple Interest Advances are outstanding any such repayment to be applied
in
the order in which such Interest Advances have been made, starting with the
earliest), plus (b) interest on the amount of each such Unpaid Advance as
provided in Section 3.07 hereof; provided that if (i) the Liquidity
Provider shall make a Provider Advance at any time after making one or more
Interest Advances which shall not have been repaid in accordance with this
Section 2.05 or (ii) this Liquidity Facility shall become a Downgraded
Facility or Non-Extended Facility at any time when unreimbursed Interest
Advances have reduced the Maximum Available Commitment to zero, then such
Interest Advances shall cease to constitute Unpaid Advances and shall be deemed
to have been changed into an Applied Downgrade Advance or an Applied
Non-Extension Advance, as the case may be, for all purposes of this Agreement
(including, without limitation, for the purpose of determining when such
Interest Advance is required to be repaid to the Liquidity Provider in
accordance with Section 2.06 and for the purposes of Section 2.06(b)).
The Borrower and the Liquidity Provider agree that the repayment in full of
each
Interest Advance and Final Advance on the date such Advance is made is intended
to be a contemporaneous exchange for new value given to the Borrower by the
Liquidity Provider.
Section
2.06 Repayments
of Provider Advances.
(a) Amounts
advanced hereunder in respect of a Provider Advance shall be deposited in the
Class A Cash Collateral Account, invested and withdrawn from the
Class A Cash Collateral Account as set forth in Sections 3.5(c), (d)
and (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; provided,
however,
that
amounts in respect of a Provider Advance withdrawn from the Class A Cash
Collateral Account for the purpose of paying interest on the Class A
Certificates in accordance with Section 3.5(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 and the dates on which such interest is payable;
provided further, however, that if, following the making of a Provider
Advance,
the Liquidity Provider delivers a Termination Notice to the Borrower pursuant
to
Section 6.01 hereof, such Provider Advance shall thereafter be treated as a
Final Advance under this Agreement for purposes of determining the Applicable
Liquidity Rate for interest payable thereon and the dates on which such interest
is payable and as an Applied Downgrade Advance or Applied Non-Extension Advance,
as the case may be, for the purposes of Section 2.6(c) of the Intercreditor
Agreement. Subject to Sections 2.07 and 2.09 hereof, immediately upon the
withdrawal of any amounts from the Class A Cash Collateral Account on
account of a reduction in the Required Amount, the Borrower shall repay to
the
Liquidity Provider a portion of the Provider Advances in a principal amount
equal to such reduction, plus interest on the principal amount prepaid as
provided in Section 3.07 hereof.
(b) At
any
time when an Applied Provider Advance (or any portion thereof) is outstanding,
upon the deposit in the Class A Cash Collateral Account of any amount
pursuant to clause “fourth”
of
Section 3.2 of the Intercreditor Agreement (any such amount being a
“Replenishment
Amount”)
for
the purpose of replenishing or increasing the balance thereof up to the Required
Amount at such time, (i) the aggregate outstanding principal amount of all
Applied Provider Advances (and of Provider Advances treated as an Interest
Advance for purposes of determining the Applicable Liquidity Rate for interest
payable thereon) shall be automatically reduced by the amount of such
Replenishment Amount (if multiple Applied Provider Advances are outstanding,
such Replenishment Amount to be applied in the order in which such Applied
Provider Advances have been made, starting with the earliest) 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 3.5(e) of the Intercreditor Agreement, amounts
remaining on deposit in the Class A Cash Collateral Account after giving
effect to any Applied Provider Advance on the date of such replacement shall
be
reimbursed to the Liquidity Provider, but only to the extent such amounts are
necessary to repay in full to the Liquidity Provider all amounts owing to it
hereunder.
Section
2.07 Payments
to the Liquidity Provider Under the Intercreditor Agreement.
In
order to provide for payment or repayment to the Liquidity Provider of any
amounts hereunder, the Intercreditor Agreement provides that amounts available
and referred to in Articles II and III of the Intercreditor Agreement,
to the extent payable to the Liquidity Provider pursuant to the terms of the
Intercreditor Agreement (including, without limitation, Section 3.5(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, including, without
limitation, Sections 7.05 and 7.07, shall be made only from the amounts that
constitute Scheduled Payments, Special Payments or payments under
Section 8.1 of the Participation Agreements with respect to Aircraft and
payments under Section 6 of the Note Purchase Agreement and only to the
extent that the Borrower shall have sufficient income or proceeds therefrom
to
enable the Borrower to make payments in accordance with the terms hereof after
giving effect to the priority of payments provisions set forth in the
Intercreditor Agreement. The Liquidity Provider agrees that it will look solely
to such amounts in respect of payments to be made by the Borrower hereunder
to
the extent available for distribution to it as provided in the Intercreditor
Agreement and this Agreement and that the Borrower, in its individual capacity,
is not personally liable to it for any amounts payable or liability under this
Agreement except as expressly provided in this Agreement, the Intercreditor
Agreement or any Participation Agreement. Amounts on deposit in the Class A
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 3.5(f) of the Intercreditor Agreement.
Section
2.10 Extension
of the Expiry Date; Non-Extension Advance.
No
earlier than the 60th day and no later than the 40th day prior to the then
effective Expiry Date (unless such Expiry Date is on or after the date that
is
15 days after the Final Legal Distribution Date for the Class A
Certificates), the Borrower shall request that the Liquidity Provider extend
the
Expiry Date to the earlier of (i) the date that is 15 days after the Final
Legal Distribution Date for the Class A 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 3.5(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 3.5(d)
of the Intercreditor Agreement.
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 Advances hereunder or its obligation to make any such Advances hereunder,
or
any reduction in any amount receivable by the Liquidity Provider under this
Agreement or the Intercreditor Agreement in respect of any such Advances or
such
obligation (such increases in costs and reductions in amounts receivable being
herein called “Additional
Costs”),
resulting from any change after the date of this Agreement in U.S. federal,
state, municipal, or foreign laws or regulations (including Regulation D of
the
Board of Governors of the Federal Reserve System), or the adoption or making
after the date of this Agreement of any interpretations, directives, or
requirements applying to a class of banks including the Liquidity Provider
under
any U.S. federal, state, municipal, or any foreign laws or regulations (whether
or not having the force of law) by any court, central bank or monetary authority
charged with the interpretation or administration thereof (a “Regulatory
Change”),
which: (1) changes the basis of taxation of any amounts payable to the
Liquidity Provider under this Agreement in respect of any such Advances or
such
obligation (other than Excluded Taxes); or (2) imposes or modifies any
reserve, special deposit, compulsory loan or similar requirements relating
to
any extensions of credit or other assets of, or any deposits with other
liabilities of, the Liquidity Provider (including any such Advances or such
obligation or any deposits referred to in the definition of LIBOR Rate or
related definitions). The Liquidity Provider agrees to use reasonable efforts
(consistent with applicable legal and regulatory restrictions) to change the
jurisdiction of its Facility Office if making such change would avoid the need
for, or reduce the amount of, any amount payable under this Section that
may thereafter accrue and would not, in the reasonable judgment of the Liquidity
Provider, be otherwise disadvantageous to the Liquidity Provider.
The
Liquidity Provider will notify the Borrower of any event occurring after the
date of this Agreement that will entitle the Liquidity Provider to compensation
pursuant to this Section 3.01 as promptly as practicable after it obtains
knowledge thereof and determines to request such compensation, which notice
shall describe in reasonable detail the calculation of the amounts owed under
this Section. Determinations by the Liquidity Provider for purposes of this
Section 3.01 of the effect of any Regulatory Change on its costs of making
or maintaining Advances or on amounts receivable by it in respect of Advances,
and of the additional amounts required to compensate the Liquidity Provider
in
respect of any Additional Costs, shall be prima facie evidence of the amount
owed under this Section.
Notwithstanding
the preceding two paragraphs, the Liquidity Provider and the Subordination
Agent
agree that any permitted assignee or participant of the initial Liquidity
Provider which is not a bank shall not be entitled to the benefits of the
preceding two paragraphs (but without limiting the provisions of
Section 7.08 hereof).
Section
3.02 Capital
Adequacy.
If
(1) the adoption, after the date hereof, of any applicable governmental
law, rule or regulation regarding capital adequacy, (2) any change, after
the date hereof, in the interpretation or administration of any such law, rule
or regulation by any central bank or other governmental authority charged with
the interpretation or administration thereof or (3) compliance by the
Liquidity Provider or any corporation or bank 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 (x) requiring an increase in the
amount of capital required to be maintained by the Liquidity Provider or any
corporation or bank controlling the Liquidity Provider, or (y) reducing the
rate
of
return
on
assets or capital of the Liquidity Provider (or such corporation or bank) and
such adoption, change or compliance, as the case may be, relates to a category
of claims or assets that includes the Liquidity Provider’s obligations hereunder
and other similar obligations, the Borrower shall, subject to the provisions
of
the next paragraph, 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 or reduction as shall be reasonably
allocable to the Liquidity Provider’s obligations to the Borrower hereunder. For
the avoidance of doubt, the proposals of The Basel Committee on Banking
Supervision relating to capital adequacy rules commonly known as Basel II will
not be treated for purposes of determining whether the Liquidity Provider (or
any corporation or bank controlling the Liquidity Provider) is entitled to
compensation under this Section 3.02 as having been adopted or having come
into
effect before the date hereof, which rules shall be determined to be adopted
only when the national banking authorities, or other relevant administrative
or
legislative bodies having primary jurisdiction or regulatory authority over
the
Liquidity Provider (or any corporation or bank controlling the Liquidity
Provider), adopt Basel II in the primary jurisdiction of the Liquidity Provider.
The Liquidity Provider agrees to use reasonable efforts (consistent with
applicable legal and regulatory restrictions) to change the jurisdiction of
its
Facility Office if making such change would avoid the need for, or reduce the
amount of, any amount payable under this Section that may thereafter accrue
and
would not, in the reasonable judgment of the Liquidity Provider, be otherwise
materially disadvantageous to the Liquidity Provider.
The
Liquidity Provider will notify the Borrower of any event occurring after the
date of this Agreement that will entitle the Liquidity Provider to compensation
pursuant to this Section 3.02 as promptly as practicable after it obtains
knowledge thereof and determines to request such compensation, which notice
shall describe in reasonable detail the calculation of the amounts owed under
this Section. Determinations by the Liquidity Provider for purposes of this
Section 3.02 of the effect of any increase in the amount of capital
required to be maintained by the Liquidity Provider and of the amount allocable
to the Liquidity Provider’s obligations to the Borrower hereunder shall be
conclusive evidence of the amounts owed under this Section, absent manifest
error.
Notwithstanding
the preceding two paragraphs, the Liquidity Provider and the Subordination
Agent
agree that any permitted assignee or participant of the initial Liquidity
Provider which is not a bank shall not be entitled to the benefits of the
preceding two paragraphs (but without limiting the provisions of
Section 7.08 hereof).
Section
3.03 Payments
Free of Deductions.
(a) All
payments made by the Borrower under this Agreement shall be made free and clear
of, and without reduction for or on account of, any present or future stamp
or
other taxes, levies, imposts, duties, charges, fees, deductions, withholdings,
restrictions or conditions of any nature whatsoever now or hereafter imposed,
levied, collected, withheld or assessed, excluding Excluded Taxes (such
non-excluded taxes being referred to herein, collectively, as “Non-Excluded
Taxes”
and
each, individually, as a “Non-Excluded
Tax”).
If
any Non-Excluded Taxes are required to be withheld from any amounts payable
to
the Liquidity Provider under this Agreement, (i) the Borrower shall within
the time prescribed therefor by applicable law pay to the appropriate
governmental or taxing authority the full amount of any such Non-Excluded Taxes
(and any additional Non-Excluded Taxes in respect of the additional amounts
payable under clause (ii) hereof) and make such
reports
or returns in connection therewith at the time or times and in the manner
prescribed by applicable law, and (ii) the amounts so payable to the
Liquidity Provider shall be increased to the extent necessary to yield to the
Liquidity Provider (after payment of all Non-Excluded Taxes) interest or any
other such amounts payable under this Agreement at the rates or in the amounts
specified in this Agreement. The Liquidity Provider agrees to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Facility Office if making such
change would avoid the need for, or reduce the amount of, any such additional
amounts that may thereafter accrue and would not, in the reasonable judgment
of
the Liquidity Provider, be otherwise disadvantageous to the Liquidity Provider.
From time to time upon the reasonable request of the Borrower, the Liquidity
Provider agrees to provide to the Borrower two original Internal Revenue Service
Forms W-8BEN or W-8ECI, as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that the Liquidity
Provider is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement. Within 30 days after
the
date of each payment hereunder, the Borrower shall furnish to the Liquidity
Provider the original or a certified copy of (or other documentary evidence
of)
the payment of the Non-Excluded Taxes applicable to such payment.
(b) All
payments (including, without limitation, Advances) made by the Liquidity
Provider under this Agreement shall be made free and clear of, and without
reduction for or on account of, any Taxes. If any Taxes are required to be
withheld or deducted from any amounts payable to the Borrower under this
Agreement, the Liquidity Provider shall (i) within the time prescribed
therefor by applicable law pay to the appropriate governmental or taxing
authority the full amount of any such Taxes (and any additional Taxes in respect
of the additional amounts payable under clause (ii) hereof) and make such
reports or returns in connection therewith at the time or times and in the
manner prescribed by applicable law, and (ii) pay to the Borrower an
additional amount which (after deduction of all such Taxes) will be sufficient
to yield to the Borrower the full amount which would have been received by
it
had no such withholding or deduction been made. Within 30 days after the date
of
each payment hereunder, the Liquidity Provider shall furnish to the Borrower
the
original or a certified copy of (or other documentary evidence of) the payment
of the Taxes applicable to such payment.
(c) If
any
exemption from, or reduction in the rate of, any Taxes is reasonably available
to the Borrower to establish that payments under this Agreement are exempt
from
(or entitled to a reduced rate of) tax, the Borrower shall deliver to the
Liquidity Provider such form or forms and such other evidence of the eligibility
of the Borrower for such exemption or reduction as the Liquidity Provider may
reasonably identify to the Borrower as being required as a condition to
exemption from, or reduction in the rate of, any Taxes.
Section
3.04 Payments.
The
Borrower shall make or cause to be made each payment to the Liquidity Provider
under this Agreement so as to cause the same to be received by the Liquidity
Provider not later than 1:00 P.M. (New York City time) on the day when due.
The Borrower shall make all such payments in lawful money of the United States
of America, to the Liquidity Provider in immediately available funds, by wire
transfer to the account specified for the Liquidity Provider in Schedule
B.
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 to the Liquidity Provider 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. If any payment in respect of interest on an Advance is so deferred
to
the next succeeding Business Day, such deferral shall not delay the commencement
of the next Interest Period for such Advance (if such Advance is a LIBOR
Advance) or reduce the number of days for which interest will be payable on
such
Advance on the next interest payment date for such Advance.
Section
3.07 Interest.
(a) Subject
to Section 2.09, the Borrower shall pay, or shall cause to be paid, without
duplication, interest on (i) the unpaid principal amount of each Advance
from and including the date of such Advance (or, in the case of an Applied
Provider Advance, from and including the date on which the amount thereof was
withdrawn from the Class A Cash Collateral Account to pay interest on the
Class A Certificates) to but excluding the date such principal amount shall
be paid in full (or, in the case of an Applied Provider Advance, the date on
which the Class A Cash Collateral Account is fully replenished in respect
of such Advance) and (ii) any other amount due hereunder (whether fees,
commissions, expenses or other amounts or, to the extent permitted by law,
installments of interest on Advances or any such other amount) which is not
paid
when due (whether at stated maturity, by acceleration or otherwise) from and
including the due date thereof to but excluding the date such amount is paid
in
full, in each such case, at a fluctuating interest rate per annum for each
day
equal to the Applicable Liquidity Rate (as defined below) for such Advance
or
such other amount as in effect for such day, but in no event at a rate per
annum
greater than the maximum rate permitted by applicable law; provided,
however,
that,
if at any time the otherwise applicable interest rate as set forth in this
Section 3.07 shall exceed the maximum rate permitted by applicable law,
then any subsequent reduction in such interest rate will not reduce the rate
of
interest payable pursuant to this Section 3.07 below the maximum rate
permitted by applicable law until the total amount of interest accrued equals
the amount of interest that would have accrued if such otherwise applicable
interest rate as set forth in this Section 3.07 had at all times been in
effect.
(b) Except
as
provided in clause (e) below, each Advance (including, without limitation,
each outstanding Unapplied Downgrade Advance) will be either a Base Rate Advance
or a LIBOR Advance as provided in this Section. Each such Advance will be a
Base
Rate Advance for the period from the date of its borrowing to (but excluding)
the third LIBOR Business Day following the Liquidity Provider’s receipt of the
Notice of Borrowing for such Advance. Thereafter, such Advance shall be a LIBOR
Advance; provided that the Borrower (at the direction of the Controlling Party,
so long as the Liquidity Provider is not the Controlling Party) may
(x) convert the Final Advance into a Base Rate Advance on the last day of
an Interest Period for such Advance by giving the Liquidity Provider no less
than four Business Days’ prior written notice of such election or (y) elect
to maintain the Final Advance as a Base Rate Advance by not requesting a
conversion of the Final Advance to a LIBOR Advance under Clause (5) of
the
applicable Notice of Borrowing (or, if such Final Advance is deemed to have
been
made, without delivery of a Notice of Borrowing pursuant to Section 2.06,
by requesting, prior to 11:00 A.M. (New York City time) on the first
Business Day immediately following the Borrower’s receipt of the applicable
Termination Notice, that such Final Advance not be converted from a Base Rate
Advance to a LIBOR Advance).
(c) Each
LIBOR Advance shall bear interest during each Interest Period at a rate per
annum equal to the LIBOR Rate for such Interest Period plus the Applicable
Margin for such LIBOR Advance, payable in arrears on the last day of such
Interest Period and, in the event of the payment of principal of such LIBOR
Advance on a day other than such last day, on the date of such payment (to
the
extent of interest accrued on the amount of principal repaid).
(d) Each
Base
Rate Advance shall bear interest at a rate per annum equal to the Base Rate
plus
the Applicable Margin for such Base Rate Advance, payable in arrears on each
Regular Distribution Date and, in the event of the payment of principal of
such
Base Rate Advance on a day other than a Regular Distribution Date, on the date
of such payment (to the extent of interest accrued on the amount of principal
repaid).
(e) Each
outstanding Unapplied Non-Extension Advance and Unapplied Downgrade Advance
shall bear interest in an amount equal to the Investment Earnings on amounts
on
deposit in the Class A Cash Collateral Account plus the Applicable Margin
for such Unapplied Non-Extension Advance on the amount of such Unapplied
Non-Extension Advance or Unapplied Downgrade Advance from time to time, payable
in arrears on each Regular Distribution Date.
(f) Each
amount not paid when due hereunder (whether fees, commissions, expenses or
other
amounts or, to the extent permitted by applicable law, installments of interest
on Advances but excluding Advances) shall bear interest at a rate per annum
equal to the Base Rate plus 2.00% per annum until paid.
(g) Each
change in the Base Rate shall become effective immediately. The rates of
interest specified in this Section 3.07 with respect to any Advance or
other amount shall be referred to as the “Applicable Liquidity
Rate”.
Section
3.08 Replacement
of Borrower.
From
time to time and subject to the successor Borrower’s meeting the eligibility
requirements set forth in Section 6.9 of the Intercreditor Agreement
applicable to the Subordination Agent, upon the effective date and time
specified in a written and completed Notice of Replacement Subordination Agent
in substantially the form of Annex VI attached hereto (a “Notice
of Replacement Subordination Agent”)
delivered to the Liquidity Provider by the then Borrower, the successor Borrower
designated therein shall be substituted for 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.
Calculation
of all amounts payable to the Liquidity Provider under this Section 3.09 shall
be made as though the Liquidity Provider had actually funded the related LIBOR
Advance through the purchase of a LIBOR deposit bearing interest at the LIBOR
Rate in an amount equal to its LIBOR Advance and having a maturity comparable
to
the relevant Interest Period; provided however, that the Liquidity Provider
may
fund any LIBOR Advance in any manner it sees fit and the foregoing assumptions
shall be utilized only for the purposes of calculating amounts payable under
this Section 3.09.
Section
3.10 Illegality.
Notwithstanding any other provision in this Agreement, if any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by the Liquidity Provider (or its Facility Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank
or
comparable agency shall make it unlawful or impossible for the Liquidity
Provider (or its Facility Office) to maintain or fund its LIBOR Advances, then
upon notice to the Borrower by the Liquidity Provider, the outstanding principal
amount of the LIBOR Advances shall be converted to Base Rate Advances
(a) immediately upon demand of the Liquidity Provider, if such change or
compliance with such request, in the judgment of the Liquidity Provider,
requires immediate repayment; or (b) at the expiration of the last Interest
Period to expire before the effective date of any such change or request. The
Liquidity Provider agrees to use reasonable efforts (consistent with applicable
legal and regulatory restrictions) to change the jurisdiction of its Facility
Office if making such change would avoid or cure the aforesaid illegality and
would not, in the reasonable judgment of the Liquidity Provider, be otherwise
disadvantageous to the Liquidity Provider.
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 the Borrower;
(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 Guarantee Agreement,
the
Fee Letter and the Intercreditor Agreement);
(iv) A
copy of
the Prospectus Supplement and specimen copies of the Class A
Certificates;
(v) An
executed copy of each document, instrument, certificate and opinion delivered
on
or before the Closing Date pursuant to the Class A Trust Agreement, the
Note Purchase Agreement, the Intercreditor Agreement and the other Operative
Agreements (in the case of each such opinion, other than the opinion of counsel
for the Underwriters, either addressed to the Liquidity Provider or accompanied
by a letter from the counsel rendering such opinion to the effect that the
Liquidity Provider is entitled to rely on such opinion as of its date as if
it
were addressed to the Liquidity Provider);
(vi) Evidence
that there shall have been made and shall be in full force and effect, all
filings, recordings and/or registrations, and there shall have been given or
taken any notice or other similar action as may be reasonably necessary or,
to
the extent reasonably requested by the Liquidity Provider, reasonably advisable,
in order to establish, perfect, protect and preserve the right, title and
interest, remedies, powers, privileges, liens and security interests of, or
for
the benefit of, the Trustees, the Borrower and the Liquidity Provider created
by
the Operative Agreements executed and delivered on or before the Closing
Date;
(vii) An
agreement from Continental, pursuant to which (i) Continental agrees to
provide to the Liquidity Provider (A) within 90 days after the end of each
of the first three fiscal quarters in each fiscal year of Continental, a
consolidated balance sheet of Continental as of the end of such quarter and
related statements of income and cash flows for the period commencing at the
end
of the previous fiscal year and ending with the end of such quarter, setting
forth in each case in comparative form the corresponding figures for the
corresponding period in the preceding fiscal year, prepared in accordance with
GAAP; provided, that so long as Continental is subject to the reporting
requirements of the Securities Exchange Act of 1934, as amended, a copy of
Continental’s report on Form 10-Q for such fiscal quarter (excluding
exhibits) or a written notice executed by an authorized officer of Continental
that such report has been filed with the Securities and Exchange Commission,
providing a website address at which such report may be accessed and confirming
that the report accessible at such website address conforms to the original
report filed with the Securities and Exchange Commission will satisfy this
subclause (A), and (B) within 120 days after the end of each fiscal
year of Continental, a consolidated balance sheet of Continental as of the
end
of such fiscal year and related statements of income and cash flows of
Continental for such fiscal year, in comparative form with the preceding fiscal
year, prepared in accordance with GAAP, together with a report of Continental’s
independent certified public accountants with respect to their audit of such
financial statements; provided, that so long as Continental is subject to the
reporting requirements of the Securities Exchange Act of 1934, as amended,
a
copy of Continental’s report on Form 10-K for such fiscal year (excluding
exhibits) or a written notice executed by an authorized officer of Continental
that
such
report has been filed with the Securities and Exchange Commission, providing
a
website address at which such report may be accessed and confirming that the
report accessible at such website address conforms to the original report filed
with the Securities and Exchange Commission will satisfy this
subclause (B), 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;
(viii) Legal
opinions from (a) Morris, James, Hitchens & Xxxxxxxx LLC, special counsel to
the Borrower and (b) Xxxxxx Xxxxxxx & Xxxx LLP, special counsel to
Continental, each in form and substance reasonably satisfactory to the Liquidity
Provider; and
(ix) 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, including, without
limitation, such documentation as the Liquidity Provider may require to satisfy
its “know your customer” policies.
(b) The
following statement shall be true on and as of the Effective Date: no event
has
occurred and is continuing, or would result from the entering into of this
Agreement or the making of any Advance, which constitutes a Liquidity Event
of
Default
(c) The
Liquidity Provider shall have received payment in full of all fees and other
sums required to be paid to or for the account of the Liquidity Provider on
or
prior to the Effective Date.
(d) All
conditions precedent to the issuance of the Certificates under the Trust
Agreements shall have been satisfied or waived, all conditions precedent to
the
effectiveness of the other Liquidity Facility shall have been concurrently
satisfied or waived, and all conditions precedent to the purchase of the
Class A Certificates, the Class B Certificates and the Class C 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.
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 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.
LIQUIDITY
EVENTS OF DEFAULT
Section
6.01 Liquidity
Events of Default.
If
(a) any Liquidity Event of Default has occurred and is continuing and
(b) there is a Performing Note Deficiency, the Liquidity Provider may, in
its discretion, deliver to the Borrower a Termination Notice, the effect of
which shall be to cause (i) the obligation of the Liquidity Provider to
make Advances hereunder to expire on the fifth Business Day after the date
on
which such Termination Notice is received by the Borrower, (ii) the
Borrower to promptly request, and the Liquidity Provider to promptly make,
a
Final Advance in accordance with Section 2.02(d) hereof and
Section 3.5(i) of the Intercreditor Agreement, (iii) all other
outstanding Advances to be automatically converted into Final Advances for
purposes of determining the Applicable Liquidity Rate for interest payable
thereon, and (iv) subject to Sections 2.07 and 2.09 hereof, all
Advances (including, without limitation, any Provider Advance and Applied
Provider Advance), any accrued interest thereon and any other amounts
outstanding hereunder to become immediately due and payable to the Liquidity
Provider.
MISCELLANEOUS
Section
7.01 Amendments,
Etc.
No
amendment or waiver of any provision of this Agreement, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless
the
same shall be in writing and signed by the Liquidity Provider, and, in the
case
of an amendment or of a waiver by the Borrower, the Borrower, and then such
waiver or consent shall be effective only in the specific instance and for
the
specific purpose for which given.
Section
7.02 Notices,
Etc.
Except
as otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including telecopier and mailed
or
delivered or sent by telecopier) addressed to the applicable party at its
address specified on Schedule B or to such other address as shall be designated
by such Person in a written notice to the others. All such notices and
communications shall be effective (i) if given by telecopier, when
transmitted to the telecopier number specified above, (ii) if given by
mail, when deposited in the mails addressed as specified above, and
(iii) if given by other means, when delivered at the address specified
above, except that written notices to the Liquidity Provider pursuant to the
provisions of Article II and Article III hereof shall not be effective
until received by the Liquidity Provider. A copy of all notices delivered
hereunder to either party shall in addition be delivered to each of the parties
to the Participation Agreements at their respective addresses set forth
therein.
Section
7.03 No
Waiver; Remedies.
No
failure on the part of the Liquidity Provider to exercise, and no delay in
exercising, any right under this Agreement shall operate as a waiver thereof;
nor shall any single or partial exercise of any right under this Agreement
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section
7.04 Further
Assurances.
The
Borrower agrees to do such further acts and things and to execute and deliver
to
the Liquidity Provider such additional assignments, agreements, powers and
instruments as the Liquidity Provider may reasonably require or deem advisable
to carry into effect the purposes of this Agreement and the other Operative
Agreements or to better assure and confirm unto the Liquidity Provider its
rights, powers and remedies hereunder and under the other Operative
Agreements.
Section
7.05 Indemnification;
Survival of Certain Provisions.
The
Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Section 8.1 of the Participation Agreements. 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, incurred by
or
asserted against any Liquidity Indemnitee, in any way relating to, resulting
from, or arising out of or in connection with any action, suit or proceeding
by
any third party against such Liquidity Indemnitee and relating to this
Agreement, the Fee Letter, the
Intercreditor
Agreement or any Financing Agreement; provided,
however,
that
the Borrower shall not be required to indemnify, protect, defend and hold
harmless any Liquidity Indemnitee in respect of any Expense of such Liquidity
Indemnitee to the extent such Expense is (i) attributable to the gross
negligence or willful misconduct of such Liquidity Indemnitee or any other
Liquidity Indemnitee, (ii) ordinary and usual operating overhead expense,
or (iii) attributable to the failure by such Liquidity Indemnitee or any
other Liquidity Indemnitee to perform or observe any agreement, covenant or
condition on its part to be performed or observed in this Agreement, the
Intercreditor Agreement, the Fee Letter applicable to this Agreement or any
other Operative Agreement to which it is a party. The indemnities contained
in
Section 8.1 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 negligence in determining whether documents
presented hereunder comply with the terms hereof, or (B) any breach by the
Liquidity Provider of any of the terms of this Agreement, including, but not
limited to, the Liquidity Provider’s failure to make lawful payment hereunder
after the delivery to it by the Borrower of a Notice of Borrowing strictly
complying with the terms and conditions hereof. 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 be effective) or (iii) any action or proceeding relating to any
order, injunction, or other process or decree restraining or seeking to restrain
the Liquidity Provider from paying any amount under this Agreement, the
Intercreditor Agreement or any other Operative Agreement or otherwise affecting
the application of funds in the Class A 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 and in Section 3.05(l) of the Intercreditor Agreement) nor
(except as contemplated by Section 3.08) the Borrower shall have the right
to assign its rights or obligations hereunder or any interest herein without
the
prior written consent of the other party, subject to the requirements of
Section 7.08(b). The Liquidity Provider may grant participations herein or
in any of its rights hereunder (including, without limitation, funded
participations and participations in rights to receive interest payments
hereunder) and under the other Operative Agreements to such Persons (other
than
Continental and its Affiliates) as the Liquidity Provider may in its sole
discretion select, subject to the requirements of Section 7.08(b). No such
granting of participations by the Liquidity Provider, however, will relieve
the
Liquidity Provider of its obligations hereunder. In connection with any
participation or any proposed participation, the Liquidity Provider may disclose
to the participant or the proposed participant any information that the Borrower
is required to deliver or to disclose to the Liquidity Provider pursuant to
this
Agreement. The Borrower acknowledges and agrees that the Liquidity Provider’s
source of funds may derive in part from its participants. Accordingly,
references in this Agreement and the other Operative Agreements to
determinations, reserve and capital adequacy requirements, increased costs,
reduced receipts, additional amounts due pursuant to Section 3.03 and the
like as they pertain to the Liquidity Provider shall be deemed also to include
those of each of its participants that are banks (subject, in each case, to
the
maximum amount that would have been incurred by or attributable to the Liquidity
Provider directly if the Liquidity Provider, rather than the participant, had
held the interest participated).
(b) If,
pursuant to subsection (a) above, the Liquidity Provider sells any
participation in this Agreement to any bank or other entity (each, a
“Transferee”),
then,
concurrently with the effectiveness of such participation, the Transferee shall
(i) represent to the Liquidity Provider (for the benefit of the Liquidity
Provider and the Borrower) either (A) that it is incorporated under the
laws of the United States or a state thereof or (B) that under applicable
law and treaties, no taxes will be required to be withheld with respect to
any
payments to be made to such Transferee in respect of this Agreement,
(ii) furnish to the Liquidity Provider and the Borrower either (x) a
statement that it is incorporated under the laws of the United States or a
state
thereof
or
(y) if it is not so incorporated, two copies of a properly completed United
States Internal Revenue Service Form W-8ECI or Form W-8BEN, as
appropriate, or other applicable form, certificate or document prescribed by
the
Internal Revenue Service certifying, in each case, such Transferee’s entitlement
to a complete exemption from United States federal withholding tax in respect
to
any and all payments to be made hereunder, and (iii) agree (for the benefit
of the Liquidity Provider and the Borrower) to provide the Liquidity Provider
and the Borrower a new Form W-8ECI or Form W-8BEN, as appropriate,
(A) on or before the date that any such form expires or becomes obsolete or
(B) after the occurrence of any event requiring a change in the most recent
form previously delivered by it and prior to the immediately following due
date
of any payment by the Borrower hereunder, certifying in the case of a
Form W-8BEN or Form W-8ECI that such Transferee is entitled to a
complete exemption from United States federal withholding tax on payments under
this Agreement. Unless the Borrower has received forms or other documents
reasonably satisfactory to it (and required by applicable law) indicating that
payments hereunder are not subject to United States federal withholding tax,
the
Borrower will withhold taxes as required by law from such payments at the
applicable statutory rate.
(c) Notwithstanding
the other provisions of this Section 7.08, the Liquidity Provider may
assign and pledge all or any portion of the Advances owing to it to any Federal
Reserve Bank or the United States Treasury as collateral security pursuant
to
Regulation A of the Board of Governors of the Federal Reserve System and any
Operating Circular issued by such Federal Reserve Bank, provided that any
payment in respect of such assigned Advances made by the Borrower to the
Liquidity Provider in accordance with the terms of this Agreement shall satisfy
the Borrower’s obligations hereunder in respect of such assigned Advance to the
extent of such payment. No such assignment shall release the Liquidity Provider
from its obligations hereunder.
Section
7.09 Severability.
Any
provision of this Agreement which is prohibited, unenforceable or not authorized
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition, unenforceability or non-authorization without invalidating
the remaining provisions hereof or affecting the validity, enforceability or
legality of such provision in any other jurisdiction.
Section
7.10 GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE
STATE OF NEW YORK.
Section
7.11 Submission
to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity.
(a) Each
of the parties hereto hereby irrevocably and unconditionally:
(i) submits
for itself and its property in any legal action or proceeding relating to this
Agreement or any other Operative Agreement, or for recognition and enforcement
of any judgment in respect hereof or thereof, to the nonexclusive general
jurisdiction of the courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and the appellate
courts from any thereof;
(ii) consents
that any such action or proceeding may be brought in such courts, and waives
any
objection that it may now or hereafter have to the venue of any such action
or
proceeding in any such court or that such action or proceeding was brought
in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to each party hereto at its address
set
forth in Section 7.02 hereof, or at such other address of which the
Liquidity Provider shall have been notified pursuant thereto; and
(iv) agrees
that nothing herein shall affect the right to effect service of process in
any
other manner permitted by law or shall limit the right to xxx in any other
jurisdiction.
(b) THE
BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE TO WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT
OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER
OF
THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING ESTABLISHED, including,
without limitation, contract claims, tort claims, breach of duty claims and
all
other common law and statutory claims. The Borrower and the Liquidity Provider
each warrant and represent that it has reviewed this waiver with its legal
counsel, and that it knowingly and voluntarily waives its jury trial rights
following consultation with such legal counsel. THIS WAIVER IS IRREVOCABLE,
AND
CANNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY
TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT.
(c) The
Liquidity Provider hereby waives any immunity it may have from the jurisdiction
of the courts of the United States or of any State and waives any immunity
any
of its properties located in the United States may have from attachment or
execution upon a judgment entered by any such court under the United States
Foreign Sovereign Immunities Act of 1976 or any similar successor
legislation.
Section
7.12 Execution
in Counterparts.
This
Agreement may be executed in any number of counterparts and by different parties
hereto on separate counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section
7.13 Entirety.
This
Agreement, the Intercreditor Agreement and the other Operative Agreements to
which the Liquidity Provider is a party constitute the entire agreement of
the
parties hereto with respect to the subject matter hereof and supersedes all
prior understandings and agreements of such parties.
Section
7.14 Headings.
Section
headings in this Agreement are included herein for convenience of reference
only
and shall not constitute a part of this Agreement for any other
purpose.
Section
7.15 Transfer.
The
Liquidity Provider hereby acknowledges and consents to the Transfer contemplated
by the Assignment and Assumption Agreement.
Section
7.16 LIQUIDITY
PROVIDER’S OBLIGATION TO MAKE ADVANCES.
EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE LIQUIDITY
PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER’S RIGHTS TO DELIVER
NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL BE
UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE
STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
Section
7.17 Patriot
Act.
In
compliance with the USA Patriot Act and 31 CFR Part 103.121 and, in the case
of
a non-U.S. entity, any other similar requirements of the relevant foreign
jurisdiction, when requested the Borrower shall provide to the Liquidity
Provider certain information relating to the Borrower that the Liquidity
Provider may be required to obtain and keep on file, including the Borrower’s
name, address and various identifying documents.
IN
WITNESS WHEREOF,
the
parties have caused this Agreement to be duly executed and delivered by their
respective officers thereunto duly authorized as of the date first set forth
above.
|
WILMINGTON
TRUST COMPANY,
not in its individual capacity but solely as Subordination Agent,
as agent
and trustee for the Class A Trust,
as
Borrower
|
||
|
By:
|
||
|
Name:
Title:
|
||
|
RZB
FINANCE LLC,
as
Liquidity Provider
|
||
|
By:
|
||
|
Name:
Title:
|
||
|
By:
|
||
|
Name:
Title:
|
||
CERTAIN
ECONOMIC TERMS
1. Applicable
Margin (Unpaid Advance/Applied Provider Advance): 1.75% per annum.
2. Initial
Expiry Date: April 8, 2008.
3. Liquidity
Event of Default Delivery Period threshold: $450,000,000.
4. Initial
Maximum Commitment: $69,047,532.
5. Prospectus
Supplement date: March 27, 2007.
TO
REVOLVING
CREDIT AGREEMENT
ADMINISTRATION
DETAILS
|
Borrower:
|
WILMINGTON
TRUST COMPANY
|
|
Address:
|
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000-0000
Attention:
Corporate Capital Market Services
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
|
|
Liquidity
Provider:
|
RZB
FINANCE LLC
|
|
Address:
|
00
Xxxxxx Xxxxx Xxxxxx
Xxxxxx,
XX 00000
Attention:
Xx. Xxxxx Xxxxx, Xx. Xxxxx Xxxxxx
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
|
|
Account
Details:
|
Bank:
Citibank NA
New
York, NY
ABA
#: 000-000-000
Acct.
Name: RZB Finance LLC
Account
#: 3617-7625
Reference:
WTC/Continental
Attn:
Xxxxx Xxxxxx, 000-000-0000
|
INTEREST
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
“Borrower”),
hereby certifies to RZB Finance LLC (the “Liquidity
Provider”),
with
reference to the Revolving Credit Agreement (2007-1A) dated as of April 10,
2007, between the Borrower and the Liquidity Provider (the “Liquidity
Agreement”;
the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The
Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The
Borrower is delivering this Notice of Borrowing for the making of an Interest
Advance by the Liquidity Provider to be used, subject to clause (3)(v)
below, for the payment of interest on the Class A Certificates which was
payable on ____________, ____ (the “Distribution
Date”)
in
accordance with the terms and provisions of the Class A Trust Agreement and
the Class A Certificates, which Advance is requested to be made on
____________, ____. The Interest Advance should be transferred to [name of
bank/wire instructions/ABA number] in favor of account number [ ], reference
[
].
(3) The
amount of the Interest Advance requested hereby (i) is $[_____________], to
be applied in respect of the payment of the interest which was due and payable
on the Class A Certificates on the Distribution Date, (ii) does not
include any amount with respect to the payment of principal of, or premium
on,
the Class A Certificates, or principal of, or interest or premium on, the
Class B Certificates and the Class C Certificates, (iii) was
computed in accordance with the provisions of the Class A Certificates, the
Liquidity Agreement, the Class A Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule I),
(iv) does not exceed the Maximum Available Commitment on the date hereof,
(v) does not include any amount of interest which was due and payable on
the Class A 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 3.5(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]
NON-EXTENSION
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
“Borrower”),
hereby certifies to RZB Finance LLC (the “Liquidity
Provider”),
with
reference to the Revolving Credit Agreement (2007-1A) dated as of April 10,
2007, between the Borrower and the Liquidity Provider (the “Liquidity
Agreement”;
the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The
Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The
Borrower is delivering this Notice of Borrowing for the making of the
Non-Extension Advance by the Liquidity Provider to be used for the funding
of
the Class A Cash Collateral Account in accordance with Section 3.5(d)
of the Intercreditor Agreement, which Advance is requested to be made on
__________, ____. The Non-Extension Advance should be transferred to [name
of
bank/wire instructions/ABA number] in favor of account number [ ], reference
[
].
(3) The
amount of the Non-Extension Advance requested hereby (i) is
$_______________.__, which equals the Maximum Available Commitment on the date
hereof and is to be applied in respect of the funding of the Class A Cash
Collateral Account in accordance with Section 3.5(d) of the Intercreditor
Agreement, (ii) does not include any amount with respect to the payment of
the principal of, or premium on, the Class A Certificates, or principal of,
or interest or premium on, the Class B Certificates or the Class C
Certificates, (iii) was computed in accordance with the provisions of the
Class A Certificates, the Liquidity Agreement, the Class A Trust
Agreement and the Intercreditor Agreement (a copy of which computation is
attached hereto as Schedule I), and (iv) has not been and is not the
subject of a prior or contemporaneous Notice of Borrowing under the Liquidity
Agreement.
(4) Upon
receipt by or on behalf of the Borrower of the amount requested hereby,
(a) the Borrower will deposit such amount in the Class A Cash
Collateral Account and apply the same in accordance with the terms of
Section 3.5(d) of the Intercreditor Agreement, (b) no portion of such
amount shall be applied by the Borrower for any other purpose and (c) no
portion of such amount until so applied shall be commingled with other funds
held by the Borrower.
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement,
(A) the making of the Non-Extension Advance as requested by this Notice of
Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement;
and
(B) following the making by the Liquidity Provider of the Non-Extension
Advance requested by this Notice of Borrowing, the Borrower shall not be
entitled to request any further Advances under the Liquidity
Agreement.
IN
WITNESS WHEREOF,
the
Borrower has executed and delivered this Notice of Borrowing as of the ____
day
of _________, ____.
|
WILMINGTON
TRUST COMPANY,
not in its individual capacity but solely as Subordination Agent,
as
Borrower
|
||
|
By:
|
||
|
Name:
Title:
|
||
SCHEDULE I
TO
NON-EXTENSION
ADVANCE NOTICE OF BORROWING
[Insert
copy of computations in accordance with Non-Extension Advance Notice of
Borrowing]
DOWNGRADE
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
“Borrower”),
hereby certifies to RZB
FINANCE LLC
(the
“Liquidity
Provider”),
with
reference to the REVOLVING
CREDIT AGREEMENT (2007-1A)
dated as
of April 10, 2007, between the Borrower and the Liquidity Provider (the
“Liquidity
Agreement”;
the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The
Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The
Borrower is delivering this Notice of Borrowing for the making of the Downgrade
Advance by the Liquidity Provider to be used for the funding of the Class A
Cash Collateral Account in accordance with Section 3.5(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 Class A Cash
Collateral Account in accordance with Section 3.5(c) of the Intercreditor
Agreement, (ii) does not include any amount with respect to the payment of
the principal of, or premium on, the Class A Certificates, or principal of,
or interest or premium on, the Class B Certificates or the Class C
Certificates, (iii) was computed in accordance with the provisions of the
Class A Certificates, the Liquidity Agreement, the Class A Trust
Agreement and the Intercreditor Agreement (a copy of which computation is
attached hereto as Schedule I), and (iv) has not been and is not the
subject of a prior or contemporaneous Notice of Borrowing under the Liquidity
Agreement.
(4) Upon
receipt by or on behalf of the Borrower of the amount requested hereby,
(a) the Borrower will deposit such amount in the Class A Cash
Collateral Account and apply the same in accordance with the terms of
Section 3.5(c) of the Intercreditor Agreement, (b) no portion of such
amount shall be applied by the Borrower for any other purpose and (c) no
portion of such amount until so applied shall be commingled with other funds
held by the Borrower.
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement,
(A) the making of the Downgrade Advance as requested by this Notice of
Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement;
and
(B) following the making by the Liquidity Provider of the
Downgrade
Advance requested by this Notice of Borrowing, the Borrower shall not be
entitled to request any further Advances under the Liquidity
Agreement.
IN
WITNESS WHEREOF,
the
Borrower has executed and delivered this Notice of Borrowing as of the ____
day
of _________, ____.
|
WILMINGTON
TRUST COMPANY,
not in its individual capacity but solely as Subordination Agent,
as
Borrower
|
||
|
By:
|
||
|
Name:
Title:
|
||
SCHEDULE I
TO
DOWNGRADE
ADVANCE NOTICE OF BORROWING
[Insert
copy of computations in accordance with Downgrade Advance Notice of
Borrowing]
TO
REVOLVING
CREDIT AGREEMENT
FINAL
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
“Borrower”),
hereby certifies to RZB
FINANCE LLC
(the
“Liquidity
Provider”),
with
reference to the REVOLVING
CREDIT AGREEMENT (2007-1A)
dated as
of April 10, 2007, between the Borrower and the Liquidity Provider (the
“Liquidity
Agreement”;
the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The
Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The
Borrower is delivering this Notice of Borrowing for the making of the Final
Advance by the Liquidity Provider to be used for the funding of the Class A
Cash Collateral Account in accordance with Section 3.5(i) of the
Intercreditor Agreement by reason of the receipt by the Borrower of a
Termination Notice from the Liquidity Provider with respect to the Liquidity
Agreement, which Advance is requested to be made on ____________, ____. The
Final Advance should be transferred to [name of bank/wire instructions/ABA
number] in favor of account number [ ], reference [ ].
(3) The
amount of the Final Advance requested hereby (i) is $_________________.__,
which equals the Maximum Available Commitment on the date hereof and is to
be
applied in respect of the funding of the Class A Cash Collateral Account in
accordance with Section 3.5(i) of the Intercreditor Agreement,
(ii) does not include any amount with respect to the payment of principal
of, or premium on, the Class A Certificates, or principal of, or interest
or premium on, the Class B Certificates or the Class C Certificates,
(iii) was computed in accordance with the provisions of the Class A
Certificates, the Liquidity Agreement, the Class A Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I), and (iv) has not been and is not the subject of a prior
or contemporaneous Notice of Borrowing.
(4) Upon
receipt by or on behalf of the Borrower of the amount requested hereby,
(a) the Borrower will deposit such amount in the Class A Cash
Collateral Account and apply the same in accordance with the terms of
Section 3.5(i) of the Intercreditor Agreement, (b) no portion of such
amount shall be applied by the Borrower for any other purpose and (c) no
portion of such amount until so applied shall be commingled with other funds
held by the Borrower.
(5) The
Borrower hereby requests that the Advance requested hereby be a Base Rate
Advance [and that such Base Rate Advance be converted into a LIBOR Advance
on
the third Business Day following your receipt of this notice.]
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement,
(A) the making of the Final Advance as requested by this Notice of
Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement;
and
(B) following the making by the Liquidity Provider of the Final Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
IN
WITNESS WHEREOF,
the
Borrower has executed and delivered this Notice of Borrowing as of the ____
day
of _________, ____.
|
WILMINGTON
TRUST COMPANY,
not in its individual capacity but solely as Subordination Agent,
as
Borrower
|
||
|
By:
|
||
|
Name:
Title:
|
||
SCHEDULE I
TO
FINAL
ADVANCE NOTICE OF BORROWING
[Insert
copy of computations in accordance with Final Advance Notice of
Borrowing]
NOTICE
OF TERMINATION
[Date]
Wilmington
Trust Company,
as
Subordination Agent, as Borrower
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000-0000
Attention:
Corporate Trust Administration
Revolving
Credit Agreement dated as of April 10, 2007 between Wilmington Trust Company,
as
Subordination Agent, as agent and trustee for the Continental Airlines Pass
Through Trust, 2007-1A-[O/S], as Borrower, and RZB Finance LLC (the
“Liquidity
Agreement”)
Ladies
and Gentlemen:
You
are
hereby notified that pursuant to Section 6.01 of the Liquidity Agreement,
by reason of the occurrence of a Liquidity Event of Default and the existence
of
a Performing Note Deficiency (each as defined therein), we are giving this
notice to you in order to cause (i) our obligations to make Advances (as
defined therein) under such Liquidity Agreement to terminate on the fifth
Business Day after the date on which you receive this notice and (ii) you
to request a Final Advance under the Liquidity Agreement pursuant to
Section 3.5(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,
RZB
FINANCE LLC
as
Liquidity Provider
|
||
|
By:
|
||
|
Name:
Title:
|
||
|
By:
|
||
|
Name:
Title:
|
||
cc: Wilmington
Trust Company,
as
Class A Trustee
TO
REVOLVING
CREDIT AGREEMENT
NOTICE
OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving
Credit Agreement dated as of April 10, 2007, between Wilmington Trust Company,
as Subordination Agent, as agent and trustee for the Continental Airlines Pass
Through Trust, 2007-1A-[O/S], as Borrower, and RZB Finance LLC (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 VI
Page 1
Page 1
