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REVOLVING CREDIT AGREEMENT
(2002-1G-1)
DATED AS OF MARCH 25, 2002
BETWEEN
WILMINGTON TRUST COMPANY,
AS SUBORDINATION AGENT,
AS AGENT AND TRUSTEE FOR THE
CONTINENTAL AIRLINES PASS THROUGH TRUST 2002-1G-1
AS BORROWER
AND
LANDESBANK HESSEN-THURINGEN GIROZENTRALE
AS PRIMARY LIQUIDITY PROVIDER
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RELATING TO
CONTINENTAL AIRLINES PASS THROUGH TRUST 2002-1G-1
USD 3-MONTH LIBOR + 0.45% CONTINENTAL AIRLINES PASS THROUGH CERTIFICATES,
SERIES 2002-1G-1
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS ........................................................1
Section 1.01. Certain Defined Terms......................................1
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENT.................................8
Section 2.01. the Advances...............................................8
Section 2.02. Making the Advances........................................8
Section 2.03. Fees......................................................10
Section 2.04. Adjustments or Termination of the Maximum Commitment......10
Section 2.05. Repayments of Interest Advances or the Final Advance......10
Section 2.06. Repayments of Provider Advances...........................11
Section 2.07. Payments to the Primary Liquidity Provider Under
the Intercreditor Agreement ..............................12
Section 2.08. Book Entries..............................................12
Section 2.09. Payments From Available Funds Only........................12
Section 2.10. Extension of the Expiry Date; Non-extension Advance.......13
Section 2.11. Right to Further Extend Expiry Date.......................13
ARTICLE III OBLIGATIONS OF THE BORROWER......................................13
Section 3.01. Increased Costs...........................................13
Section 3.02. Capital Adequacy..........................................14
Section 3.03. Payments Free of Deductions...............................15
Section 3.04. Payments..................................................16
Section 3.05. Computations..............................................16
Section 3.06. Payment On Non-business Days..............................17
Section 3.07. Interest..................................................17
Section 3.08. Replacement of Borrower...................................18
Section 3.09. Funding Loss Indemnification..............................18
Section 3.10. Illegality................................................19
ARTICLE IV CONDITIONS PRECEDENT..............................................19
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01.....19
Section 4.02. Conditions Precedent to Borrowing.........................21
ARTICLE V COVENANTS..........................................................21
Section 5.01. Affirmative Covenants of the Borrower.....................21
Section 5.02. Negative Covenants of the Borrower........................22
ARTICLE VI LIQUIDITY EVENTS OF DEFAULT.......................................22
Section 6.01. Liquidity Events of Default...............................22
ARTICLE VII MISCELLANEOUS....................................................23
Section 7.01. Amendments, Etc...........................................23
PAGE
Section 7.02. Notices, Etc..............................................23
Section 7.03. No Waiver; Remedies.......................................24
Section 7.04. Further Assurances........................................24
Section 7.05. Indemnification; Survival of Certain Provisions...........24
Section 7.06. Liability of the Primary Liquidity Provider...............24
Section 7.07. Costs, Expenses and Taxes.................................25
Section 7.08. Binding Effect; Participations............................25
Section 7.09. Third Party Beneficiary...................................27
Section 7.10. Severability..............................................27
Section 7.11. GOVERNING LAW.............................................27
Section 7.12. Submission to Jurisdiction; Waiver of Jury Trial;
Waiver of Immunity .......................................27
Section 7.13. Execution in Counterparts.................................28
Section 7.14. Entirety..................................................28
Section 7.15. Headings..................................................28
Section 7.16. Transfer..................................................28
Section 7.17. PRIMARY LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES..28
ANNEX I Interest Advance Notice of Borrowing
ANNEX II Non-Extension Advance Notice of Borrowing
ANNEX III Downgrade Advance Notice of Borrowing
ANNEX IV Final Advance Notice of Borrowing
ANNEX V Notice of Termination
ANNEX VI Notice of Replacement Subordination Agent
Schedule 1 Capped LIBOR
REVOLVING CREDIT AGREEMENT (2002-1G-1)
This REVOLVING CREDIT AGREEMENT (2002-1G-1) dated as of March
25, 2002, 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 G-1 Trust
(as defined below) (the "BORROWER"), and LANDESBANK HESSEN-THURINGEN
GIROZENTRALE, a public-law banking institution organized under the laws of
Germany (the "PRIMARY LIQUIDITY PROVIDER").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Class G-1 Trust Agreement (such term and
all other capitalized terms used in these recitals having the meanings set forth
or referred to in Section 1.01), the Class G-1 Trust is issuing the Class G-1
Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a
portion of the interest on the Class G-1 Certificates in accordance with their
terms, has requested the Primary Liquidity Provider to enter into this
Agreement, providing in part for the Borrower to request in specified
circumstances that Advances be made hereunder.
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. (a) DEFINITIONS. As used in
this Agreement and unless otherwise expressly indicated, or unless the context
clearly requires otherwise, the following capitalized terms shall have the
following respective meanings for all purposes of this Agreement:
"ADDITIONAL COST" has the meaning assigned to such term in Section
3.01.
"ADVANCE" means an Interest Advance, a Final Advance, a Provider
Advance or an Applied Provider Advance, as the case may be.
"APPLICABLE LIQUIDITY RATE" has the meaning assigned to such term in
Section 3.07(g).
"APPLICABLE MARGIN" means (x) with respect to any Unpaid Advance or
Applied Provider Advance, 1.50% per annum, or (y) with respect to any
Unapplied Provider Advance, the rate per annum specified in the Fee
Letter.
"APPLIED DOWNGRADE ADVANCE" has the meaning assigned to such term in
Section 2.06(a).
"APPLIED NON-EXTENSION ADVANCE" has the meaning assigned to such
term in Section 2.06(a).
"APPLIED PROVIDER ADVANCE" has the meaning assigned to such term in
Section 2.06(a).
"ASSIGNMENT AND ASSUMPTION AGREEMENT" means the Assignment and
Assumption Agreement to be entered into between the Borrower and the
trustee of the Successor Trust, substantially in the form of Exhibit C to
the Trust Supplement No. 2002-1G-1-O, dated as of the date hereof,
relating to the Class G-1 Trust.
"BASE RATE" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to (a)
the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New
York, or if such rate is not so published for any day that is a Business
Day, the average of the quotations for such day for such transactions
received by the Primary Liquidity Provider from three Federal funds
brokers of recognized standing selected by it, plus (b) one-quarter of one
percent (1/4 of 1%).
"BASE RATE ADVANCE" means an Advance that bears interest at a rate
based upon the Base Rate.
"BORROWER" has the meaning assigned to such term in the recital of
parties to this Agreement.
"BORROWING" means the making of Advances requested by delivery of a
Notice of Borrowing.
"BUSINESS DAY" means any day other than a Saturday or Sunday or a
day on which commercial banks are required or authorized to close in
Houston, Texas, New York, New York or, so long as any Class G-1
Certificate is outstanding, the city and state in which the Class G-1
Trustee, the Borrower or any Loan Trustee maintains its Corporate Trust
Office or receives or disburses funds, and, if the applicable Business Day
relates to any Advance or other amount bearing interest based on the LIBOR
Rate, on which dealings are carried on in the London interbank market.
"CAPPED INTEREST RATE" means, at any time, Capped LIBOR at such time
plus 0.45% per annum.
"CAPPED LIBOR" means, at any time, the rate per annum applicable at
such time as set forth in Schedule 1 hereto.
"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 First Boston, New York Branch, as Depositary,
pertaining to the Class G-1 Certificates, as the same may be amended,
modified or supplemented from time to time in accordance with the terms
thereof.
"DEPOSITARY" has the meaning assigned to such term in the Deposit
Agreement.
"DEPOSITS" has the meaning assigned to such term in the Deposit
Agreement.
"DOWNGRADE ADVANCE" means an Advance made pursuant to Section
2.02(c).
"DOWNGRADE EVENT" means a downgrading of the Primary Liquidity
Provider's short-term unsecured debt rating or issuer credit rating (as
applicable) issued by either Rating Agency below the applicable Threshold
Rating unless each Rating Agency shall have confirmed in writing on or
prior to the date of such downgrading that such downgrading will not
result in the downgrading, withdrawal or suspension of the ratings of the
Class G-1 Certificates (without regard to the Policies), in which case,
such downgrading of the Primary Liquidity Provider's short-term unsecured
debt rating or issuer credit rating (as applicable) shall not constitute a
Downgrade Event and shall be referred to herein as a "HELABA DOWNGRADE".
"EFFECTIVE DATE" has the meaning specified in Section 4.01. The
delivery of the certificate of the Primary 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 Primary Liquidity Provider or of its Facility Office by the
jurisdiction where such Primary 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 Primary
Liquidity Provider (including a transferee of an Advance) or Facility
Office, after the date on which such successor Primary 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 Primary Liquidity Provider failing to deliver
to the Borrower any certificate or document (which certificate or document
in the good faith judgment of the Primary 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 March 23, 2003, initially, or any date to which
the Expiry Date is extended pursuant to Section 2.10 or 2.11.
"EXTENSION EFFECTIVE DATE" has the meaning assigned to such term in
Section 2.11.
"FACILITY OFFICE" means the office of the Primary Liquidity Provider
presently located at Frankfurt, Germany, or such other office as the
Primary Liquidity Provider from time to time shall notify the Borrower as
its Facility Office hereunder; provided that the Primary 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.
"HELABA DOWNGRADE" has the meaning assigned to such term in the
definition of "Downgrade Event".
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement dated as
of the date hereof among the Trustees, the Primary Liquidity Provider, the
liquidity provider under the other Primary Liquidity Facility, the Class
G-1 Above-Cap Liquidity Provider, the Policy Provider and the
Subordination Agent, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"INTEREST ADVANCE" means an Advance made pursuant to Section
2.02(a).
"INTEREST PERIOD" means, with respect to any LIBOR Advance, each of
the following periods:
(i) the period beginning on the third Business Day following
either (x) the Primary Liquidity Provider's receipt of the
Notice of Borrowing for such LIBOR Advance or (y) the
withdrawal of funds from the Class G-1 Cash Collateral Account
for the purpose of paying interest on the Class G-1
Certificates as contemplated by Section 2.06(a) hereof and, in
either case, ending on the next Regular Distribution Date; and
(ii) each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the next
Regular Distribution Date;
PROVIDED, HOWEVER, that if (x) the Final Advance shall have been made, or
(y) other outstanding Advances shall have been converted into the Final
Advance, then the Interest Periods shall be successive periods of one
month beginning on the third Business Day following the Primary Liquidity
Provider's receipt of the Notice of Borrowing for such Final Advance (in
the case of clause (x) above) or the Regular Distribution Date following
such conversion (in the case of clause (y) above).
"LIBOR ADVANCE" means an Advance bearing interest at a rate based
upon the LIBOR Rate.
"LIBOR RATE" means, with respect to any Interest Period,
(i) the rate per annum appearing on display page 3750 (British
Bankers Association-LIBOR) of the Dow Xxxxx Markets Service
(or any successor or substitute therefor) at approximately
11:00 A.M. (London time) two Business Days before the first
day of such Interest Period, as the rate for dollar deposits
with a maturity comparable to such Interest Period, or
(ii) if the rate calculated pursuant to clause (i) above is not
available, the average (rounded upwards, if necessary, to the
next 1/16 of 1%) of the rates per annum at which deposits in
dollars are offered for the relevant Interest Period by three
banks of recognized standing selected by the Primary Liquidity
Provider in the London interbank market at approximately 11:00
A.M. (London time) two Business Days before the first day of
such Interest Period in an amount approximately equal to the
principal amount of the LIBOR Advance to which such Interest
Period is to apply and for a period comparable to such
Interest Period.
"LIQUIDITY EVENT OF DEFAULT" means the occurrence of either (a) the
Acceleration of all of the Equipment Notes (PROVIDED that, with respect to
the period prior to the Delivery Period Expiry Date, such Equipment Notes
have an aggregate outstanding principal balance in excess of $140,000,000)
or (b) a Continental Bankruptcy Event.
"LIQUIDITY INDEMNITEE" means (i) the Primary Liquidity Provider,
(ii) the directors, officers, employees and agents of the Primary
Liquidity Provider, and (iii) the successors and permitted assigns of the
persons described in clauses (i) and (ii), inclusive.
"MAXIMUM AVAILABLE COMMITMENT" shall mean, subject to the proviso
contained in the third sentence of Section 2.02(a), at any time of
determination, (a) the Maximum Commitment at such time LESS (b) the
aggregate amount of each Interest Advance outstanding at such time;
PROVIDED that following a Provider Advance or a Final Advance, the Maximum
Available Commitment shall be zero; PROVIDED, FURTHER, that the Maximum
Available Commitment for purposes of calculating the amount of any
Provider Advance or Final Advance shall be (a) the then Required Amount
(calculated for purposes of this proviso on the basis of Capped LIBOR of
15.00% per annum) LESS (b) the aggregate amount of each Interest Advance
outstanding at such time.
"MAXIMUM COMMITMENT" means initially $15,677,610.75 as the same may
be increased or 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
(other than any "Series J Equipment Notes" under and as defined in any
Indenture) are Performing Equipment Notes.
"PRIMARY LIQUIDITY PROVIDER" has the meaning assigned to such term
in the recital of parties to this Agreement.
"PROSPECTUS SUPPLEMENT" means the final Prospectus Supplement dated
March 11, 2002 relating to the Class G-1 Certificates and the Class G-2
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
applicable Capped Interest Rate for the Class G-1 Certificates, that would
be payable on the Class G-1 Certificates on each of the six successive
quarterly Regular Distribution Dates immediately following such day or, if
such day is a Regular Distribution Date, on such day and the succeeding
five quarterly Regular Distribution Dates, in each case calculated on the
basis of the Pool Balance of the Class G-1 Certificates on such day and
without regard to expected future payments of principal on the Class G-1
Certificates. Notwithstanding the above, in the event of any Policy
Provider Election, for purposes of the definition of the Required Amount
the Pool Balance shall be deemed to be reduced by the amount by which (a)
the then outstanding principal balance of each Series G-1 Equipment Note
in respect of which such Policy Provider Election has been made shall
exceed (b) the amount of any Policy Drawings previously paid by the Policy
Provider in respect of principal on such Series G-1 Equipment Note.
"SUCCESSOR TRUST" means Continental Airlines Pass Through Trust
2002-1G-1-S.
"TAX LETTER" means the letter dated the date hereof between the
Liquidity Provider and Continental pertaining to this Agreement.
"TERMINATION DATE" means the earliest to occur of the following: (i)
the Expiry Date; (ii) the date on which the Borrower delivers to the
Primary Liquidity Provider a certificate, signed by a Responsible Officer
of the Borrower, certifying that all of the Class G-1 Certificates have
been paid in full (or provision has been made for such payment in
accordance with the Intercreditor Agreement and the Trust Agreements) or
are otherwise no longer entitled to the benefits of this Agreement; (iii)
the date on which the Borrower delivers to the Primary Liquidity Provider
a certificate, signed by a Responsible Officer of the Borrower, certifying
that a Replacement Primary Liquidity Facility has been substituted for
this Agreement in full pursuant to Section 3.6(e) of the Intercreditor
Agreement; (iv) the fifth Business Day following the receipt by the
Borrower of a Termination Notice from the Primary 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", "CERTIFICATES", "CLASS G-1 ABOVE-CAP LIQUIDITY
PROVIDER", "CLASS G-1 CASH COLLATERAL ACCOUNT", "CLASS G-1
CERTIFICATEHOLDERS", "CLASS G-1 CERTIFICATES", "CLASS G-1 TRUST", "CLASS
G-1 TRUST AGREEMENT", "CLASS G-1 TRUSTEE", "CLASS G-2 CERTIFICATES",
"CLASS H CERTIFICATES", "CLASS I CERTIFICATES", "CLASS J CERTIFICATES",
"CLOSING DATE", "CONTINENTAL", "CONTINENTAL BANKRUPTCY EVENT",
"CONTROLLING PARTY", "CORPORATE TRUST OFFICE", "DELIVERY PERIOD EXPIRY
DATE", "DISTRIBUTION DATE", "DOWNGRADED FACILITY", "EQUIPMENT NOTES", "FEE
LETTER", "FINAL LEGAL DISTRIBUTION DATE", "FINANCING AGREEMENT",
"INDENTURE", "INVESTMENT EARNINGS", "LIQUIDITY FACILITY", "LIQUIDITY
OBLIGATIONS", "LOAN TRUSTEE", "XXXXX'X", "NON-EXTENDED FACILITY", "NOTE
PURCHASE AGREEMENT", "OPERATIVE AGREEMENTS", "PARTICIPATION AGREEMENT",
"PERFORMING EQUIPMENT NOTE", "PERSON", "POLICY", "POLICY DRAWINGS",
"POLICY PROVIDER", "POLICY PROVIDER ELECTION", "POOL BALANCE", "PRIMARY
LIQUIDITY FACILITY", "RATING AGENCY", "RATINGS CONFIRMATION", "REGULAR
DISTRIBUTION DATE", "REPLACEMENT LIQUIDITY FACILITY", "RESPONSIBLE
OFFICER", "SCHEDULED PAYMENT", "SPECIAL PAYMENT", "STANDARD & POOR'S",
"STATED INTEREST RATE", "SUBORDINATION AGENT", "TAXES", "THRESHOLD
RATING", "TRANSFER", "TRUST AGREEMENTS", "TRUSTEE", "UNDERWRITERS",
"UNDERWRITING AGREEMENT", and "WRITTEN NOTICE".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. THE ADVANCES. The Primary 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 Primary 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 Primary 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 G-1
Certificates at the Stated Interest Rate for the applicable Interest Period in
accordance with Section 3.6(a) of the Intercreditor Agreement. Each Interest
Advance made hereunder shall automatically reduce the Maximum Available
Commitment and the amount available to be borrowed hereunder by subsequent
Advances by the amount of such Interest Advance (subject to reinstatement as
provided in the next sentence). Upon repayment to the Primary Liquidity Provider
in full of the amount of any Interest Advance made pursuant to this Section
2.02(a), together with accrued interest thereon (as provided herein), the
Maximum Available Commitment shall be reinstated by the amount of such repaid
Interest Advance, but not to exceed the Maximum Commitment; PROVIDED, HOWEVER,
that the Maximum Available Commitment shall not be so reinstated at any time if
(i) a Liquidity Event of Default shall have occurred and be continuing and (ii)
there is a Performing Note Deficiency.
(b) A Non-Extension Advance shall be made in a single Borrowing if
this Agreement is not extended in accordance with Section 3.6(d) of the
Intercreditor Agreement (unless a Replacement Primary Liquidity Facility to
replace this Agreement shall have been delivered to the Borrower as contemplated
by said Section 3.6(d) within the time period specified in such Section) by
delivery to the Primary 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 G-1 Cash Collateral
Account in accordance with said Section 3.6(d) and Section 3.6(f) of the
Intercreditor Agreement.
(c) A Downgrade Advance shall be made in a single Borrowing upon the
occurrence of a Downgrade Event (as provided for in Section 3.6(c) of the
Intercreditor Agreement) unless a Replacement Primary Liquidity Facility to
replace this Agreement shall have been previously delivered to the Borrower in
accordance with said Section 3.6(c), by delivery to the Primary 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 G-1 Cash Collateral Account in accordance
with said Section 3.6(c) and Section 3.6(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 G-1 Trustee, Continental and
the Policy Provider.
(d) A Final Advance shall be made in a single Borrowing upon
the receipt by the Borrower of a Termination Notice from the Primary Liquidity
Provider pursuant to Section 6.01 hereof by delivery to the Primary 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 G-1 Cash Collateral Account (in accordance
with Sections 3.6(f) and 3.6(i) of the Intercreditor Agreement).
(e) Each Borrowing shall be made on notice in writing (a "NOTICE OF
BORROWING") in substantially the form required by Section 2.02(a), 2.02(b),
2.02(c) or 2.02(d), as the case may be, given by the Borrower to the Primary
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 Primary 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 Primary 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 Primary 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 Primary Liquidity Provider's
New York Branch at the address specified in Section 7.02 hereof.
(f) Upon the making of any Advance requested pursuant to a Notice of
Borrowing, in accordance with the Borrower's payment instructions, the Primary
Liquidity Provider shall be fully discharged of its obligation hereunder with
respect to such Notice of Borrowing, and the Primary 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 Primary
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 Primary 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 G-1 Cash Collateral Account, the Primary Liquidity Provider shall have no
interest in or rights to the Class G-1 Cash Collateral Account, the funds
constituting such Advance or any other amounts from time to time on deposit in
the Class G-1 Cash Collateral Account; PROVIDED that the foregoing shall not
affect or impair the obligations of the Subordination Agent to make the
distributions contemplated by Section 3.6(e) or (f) of the Intercreditor
Agreement, and PROVIDED FURTHER, that the foregoing shall not affect or impair
the rights of the Primary 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 Primary 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 Primary
Liquidity Provider the fees set forth in the Fee Letter applicable to this
Agreement.
Section 2.04. ADJUSTMENTS OR TERMINATION OF THE MAXIMUM COMMITMENT.
(a) AUTOMATIC ADJUSTMENT. Promptly following each date on which the
Required Amount is (1) reduced as a result of a reduction in the Pool Balance of
the Class G-1 Certificates (including by reason of a Policy Provider Election
with respect to one or more Series G-1 Equipment Notes) or otherwise, or (2)
increased as a result of an increase in the Capped Interest Rate for the Class
G-1 Certificates, the Maximum Commitment shall automatically be reduced or
increased, as the case may be, to an amount equal to such reduced or increased
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 or increase of the Maximum Commitment to the Primary
Liquidity Provider within two Business Days thereof. The failure by the Borrower
to furnish any such notice shall not affect such automatic reduction or increase
of the Maximum Commitment.
(b) TERMINATION. Upon the making of any Provider Advance or Final
Advance hereunder or the occurrence of the Termination Date, the obligation of
the Primary 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 Primary Liquidity
Provider (which notice and demand are hereby waived by the Borrower), to pay, or
to cause to be paid, to the Primary Liquidity Provider on each date on which the
Primary Liquidity Provider shall make an Interest Advance or the Final Advance,
an amount equal to (a) the amount of such Advance (any such Advance, until
repaid, is referred to herein as an "UNPAID ADVANCE"), plus (b) interest on the
amount of each such Unpaid Advance as provided in Section 3.07 hereof; PROVIDED
that if (i) the Primary 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 Primary Liquidity Provider
in accordance with Section 2.06 and for the purposes of Section 2.06(b)). The
Borrower and the Primary 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 Primary 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 G-1
Cash Collateral Account, invested and withdrawn from the Class G-1 Cash
Collateral Account as set forth in Sections 3.6(c), (d) and (f) of the
Intercreditor Agreement. The Borrower agrees to pay to the Primary 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 G-1 Cash Collateral Account for the purpose of paying interest on the
Class G-1 Certificates in accordance with Section 3.6(f) of the Intercreditor
Agreement (the amount of any such withdrawal being (y) in the case of a
Downgrade Advance, an "APPLIED DOWNGRADE ADVANCE" and (z) in the case of a
Non-Extension Advance, an "APPLIED NON-EXTENSION ADVANCE" and, together with an
Applied Downgrade Advance, an "APPLIED PROVIDER ADVANCE") shall thereafter
(subject to Section 2.06(b)) be treated as an Interest Advance under this
Agreement for purposes of determining the Applicable Liquidity Rate for interest
payable thereon; PROVIDED FURTHER, HOWEVER, that if, following the making of a
Provider Advance, the Primary Liquidity Provider delivers a Termination Notice
to the Borrower pursuant to Section 6.01 hereof, such Provider Advance shall
thereafter be treated as a Final Advance under this Agreement for purposes of
determining the Applicable Liquidity Rate for interest payable thereon and the
obligation for repayment thereof. Subject to Sections 2.07 and 2.09 hereof,
immediately upon the withdrawal of any amounts from the Class G-1 Cash
Collateral Account on account of a reduction in the Required Amount, the
Borrower shall repay to the Primary 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 G-1 Cash Collateral
Account of any amount pursuant to clause "THIRD" of Section 2.4(b) of the
Intercreditor Agreement, clause "THIRD" of Section 3.2 of the Intercreditor
Agreement or clause "FOURTH" of Section 3.3 of the Intercreditor Agreement (any
such amount being a "REPLENISHMENT AMOUNT") for the purpose of replenishing or
increasing the balance thereof up to the Required Amount at such time, (i) the
aggregate outstanding principal amount of all Applied Provider Advances (and of
Provider Advances treated as an Interest Advance for purposes of determining the
Applicable Liquidity Rate for interest payable thereon) shall be automatically
reduced by the amount of such Replenishment Amount and (ii) the aggregate
outstanding principal amount of all Unapplied Provider Advances shall be
automatically increased by the amount of such Replenishment Amount.
(c) Upon the provision of a Replacement Primary Liquidity Facility
in replacement of this Agreement in accordance with Section 3.6(e) of the
Intercreditor Agreement, amounts remaining on deposit in the Class G-1 Cash
Collateral Account after giving effect to any Applied Provider Advance on the
date of such replacement shall be reimbursed to the Primary Liquidity Provider,
but only to the extent such amounts are necessary to repay in full to the
Primary Liquidity Provider all amounts owing to it hereunder.
Section 2.07. PAYMENTS TO THE PRIMARY LIQUIDITY PROVIDER UNDER THE
INTERCREDITOR AGREEMENT. In order to provide for payment or repayment to the
Primary 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 Primary Liquidity Provider
pursuant to the terms of the Intercreditor Agreement (including, without
limitation, Section 3.6(f) of the Intercreditor Agreement), shall be paid to the
Primary Liquidity Provider in accordance with the terms thereof. Amounts so paid
to the Primary Liquidity Provider shall be applied by the Primary Liquidity
Provider to Liquidity Obligations then due and payable in accordance with the
Intercreditor Agreement or, if not provided for in the Intercreditor Agreement,
then in such manner as the Primary Liquidity Provider shall deem appropriate.
Section 2.08. BOOK ENTRIES. The Primary 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 Primary
Liquidity Provider to maintain such account or accounts shall not affect the
obligations of the Borrower in respect of Advances.
Section 2.09. PAYMENTS FROM AVAILABLE FUNDS ONLY. All payments to be
made by the Borrower under this Agreement shall be made only from the amounts
that constitute Scheduled Payments, Special Payments or payments under Section
8.1 of the Participation Agreements with respect to 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 Primary Liquidity Provider agrees that it will look solely to
such amounts to the extent available for distribution to it as provided in the
Intercreditor Agreement and this Agreement and that the Borrower, in its
individual capacity, is not personally liable to it for any amounts payable or
liability under this Agreement except as expressly provided in this Agreement,
the Intercreditor Agreement or any Participation Agreement. Amounts on deposit
in the Class G-1 Cash Collateral Account shall be available to the Borrower to
make payments under this Agreement only to the extent and for the purposes
expressly contemplated in Section 3.6(f) of the Intercreditor Agreement.
Section 2.10. EXTENSION OF THE EXPIRY DATE; NON-EXTENSION ADVANCE.
No earlier than the 60th day and no later than the 40th day prior to the then
effective Expiry Date (unless such Expiry Date is on or after the date that is
15 days after the Final Legal Distribution Date for the Class G-1 Certificates),
the Borrower shall request that the Primary 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 G-1 Certificates and (ii) the date that is the
day immediately preceding the 364th day occurring after the last day of the
Consent Period (as hereinafter defined). Whether or not the Borrower has made
such request, the Primary Liquidity Provider shall advise the Borrower and the
Policy Provider, no earlier than the 40th day (or, if earlier, the date of the
Primary 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 Primary Liquidity Provider advises the Borrower
and the Policy Provider 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 Primary Liquidity Provider shall not have been replaced in accordance with
Section 3.6(e) of the Intercreditor Agreement), the Borrower shall be entitled
on and after the date on which the Consent Period ends (but prior to the then
effective Expiry Date) to request a Non-Extension Advance in accordance with
Section 2.02(b) hereof and Section 3.6(d) of the Intercreditor Agreement.
Section 2.11 RIGHT TO FURTHER EXTEND EXPIRY DATE. Subject to the
proviso in the immediately succeeding sentence, the Primary Liquidity Provider
shall have the right at any time and without the consent of the Borrower to
extend the then effective Expiry Date to the date that is 15 days after the
Final Legal Distribution Date for the Class G-1 Certificates by giving not less
than five nor more than ten days' prior written notice of such extension to the
Borrower, the Class G-1 Trustee and Continental (which notice shall specify the
effective date of such extension (the "EXTENSION EFFECTIVE DATE")). On the
Extension Effective Date, the then effective Expiry Date shall be so extended
without any further act; PROVIDED, HOWEVER, that if prior to the Extension
Effective Date a Downgrade Event shall have occurred, the then effective Expiry
Date shall not be so extended.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. INCREASED COSTS. The Borrower shall pay to the Primary
Liquidity Provider from time to time such amounts as may be necessary to
compensate the Primary Liquidity Provider for any increased costs incurred by
the Primary Liquidity Provider which are attributable to its making or
maintaining any LIBOR Advances hereunder or its obligation to make any such
Advances hereunder, or any reduction in any amount receivable by the Primary
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 Primary 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 Primary 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 Primary Liquidity Provider (including any such
Advances or such obligation or any deposits referred to in the definition of
LIBOR Rate or related definitions). The Primary 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 Primary Liquidity Provider, be otherwise disadvantageous to the
Primary Liquidity Provider.
The Primary Liquidity Provider will notify the Borrower of any event
occurring after the date of this Agreement that will entitle the Primary
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 Primary 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 Primary 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 Primary Liquidity
Provider and the Subordination Agent agree that any permitted assignee or
participant of the initial Primary 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 Primary Liquidity Provider or any corporation
controlling the Primary Liquidity Provider with any applicable guideline or
request of general applicability, issued after the date hereof, by any central
bank or other governmental authority (whether or not having the force of law)
that constitutes a change of the nature described in clause (2), has the effect
of requiring an increase in the amount of capital required to be maintained by
the Primary Liquidity Provider or any corporation controlling the Primary
Liquidity Provider, and such increase is based upon the Primary Liquidity
Provider's obligations hereunder and other similar obligations, the Borrower
shall, subject to the provisions of the next paragraph, pay to the Primary
Liquidity Provider from time to time such additional amount or amounts as are
necessary to compensate the Primary Liquidity Provider for such portion of such
increase as shall be reasonably allocable to the Primary Liquidity Provider's
obligations to the Borrower hereunder. The Primary 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 Primary Liquidity Provider, be otherwise materially
disadvantageous to the Primary Liquidity Provider.
From and after the Extension Effective Date and prior to the
occurrence of a Helaba Downgrade, the Primary Liquidity Provider will be
entitled to compensation pursuant to this Section 3.02 only to the extent that
the Primary Liquidity Provider would have been so entitled if the Extension
Effective Date had not occurred. From and after the Extension Effective Date and
after the occurrence of a Helaba Downgrade, the Primary Liquidity Provider will
be entitled to compensation pursuant to this Section 3.02 only to the extent
that the Primary Liquidity Provider would have been so entitled had the Primary
Liquidity Provider made a Downgrade Advance upon the occurrence of such Helaba
Downgrade.
The Primary Liquidity Provider will notify the Borrower of any event
occurring after the date of this Agreement that will entitle the Primary
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 Primary 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 Primary Liquidity Provider
and of the amount allocable to the Primary Liquidity Provider's obligations to
the Borrower hereunder shall be prima facie evidence of the amounts owed under
this Section.
Notwithstanding the preceding three paragraphs, the Primary
Liquidity Provider and the Subordination Agent agree that any permitted assignee
or participant of the initial Primary 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 Primary 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
Primary Liquidity Provider shall be increased to the extent necessary to yield
to the Primary 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 Primary 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 Primary Liquidity Provider, be otherwise
disadvantageous to the Primary Liquidity Provider. From time to time upon the
reasonable request of the Borrower, the Primary Liquidity Provider agrees to
provide to the Borrower two original Internal Revenue Service Form W-8BEN or
W-8ECI, as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that the Primary 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 Primary 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 Primary 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 Primary 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 Primary 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 Primary Liquidity Provider such form or forms and such
other evidence of the eligibility of the Borrower for such exemption or
reduction as the Primary 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 Primary Liquidity Provider under this Agreement so as to
cause the same to be received by the Primary 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 Primary
Liquidity Provider in immediately available funds, by wire transfer to Citibank
N.A., New York/ABA 000000000 in favor of account number 00000000, reference
Continental Airlines Trust 2002-1G-1 #4244125, MT215000, attn. X. Xxxx.
Section 3.05. COMPUTATIONS. All computations of interest based on
the Base Rate shall be made on the basis of a year of 365 or 366 days, as the
case may be, and all computations of interest based on the LIBOR Rate shall be
made on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest is payable.
Section 3.06. PAYMENT ON NON-BUSINESS DAYS. Whenever any payment to
be made hereunder shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day and no additional
interest shall be due as a result (and if so made, shall be deemed to have been
made when due). If any payment in respect of interest on an Advance is so
deferred to the next succeeding Business Day, such deferral shall not delay the
commencement of the next Interest Period for such Advance (if such Advance is a
LIBOR Advance) or reduce the number of days for which interest will be payable
on such Advance on the next interest payment date for such Advance.
Section 3.07. INTEREST. (a) Subject to Section 2.09, the Borrower
shall pay, or shall cause to be paid, without duplication, interest on (i) the
unpaid principal amount of each Advance from and including the date of such
Advance (or, in the case of an Applied Provider Advance, from and including the
date on which the amount thereof was withdrawn from the Class G-1 Cash
Collateral Account to pay interest on the Class G-1 Certificates) to but
excluding the date such principal amount shall be paid in full (or, in the case
of an Applied Provider Advance, the date on which the Class G-1 Cash Collateral
Account is fully replenished in respect of such Advance) and (ii) any other
amount due hereunder (whether fees, commissions, expenses or other amounts or,
to the extent permitted by law, installments of interest on Advances or any such
other amount) which is not paid when due (whether at stated maturity, by
acceleration or otherwise) from and including the due date thereof to but
excluding the date such amount is paid in full, in each such case, at a
fluctuating interest rate per annum for each day equal to the Applicable
Liquidity Rate (as defined below) for such Advance or such other amount as in
effect for such day, but in no event at a rate per annum greater than the
maximum rate permitted by applicable law; PROVIDED, HOWEVER, that, if at any
time the otherwise applicable interest rate as set forth in this Section 3.07
shall exceed the maximum rate permitted by applicable law, then any subsequent
reduction in such interest rate will not reduce the rate of interest payable
pursuant to this Section 3.07 below the maximum rate permitted by applicable law
until the total amount of interest accrued equals the amount of interest that
would have accrued if such otherwise applicable interest rate as set forth in
this Section 3.07 had at all times been in effect.
(b) Except as provided in clause (e) below, each Advance (including,
without limitation, each outstanding Unapplied Downgrade Advance) will be either
a Base Rate Advance or a LIBOR Advance as provided in this Section. Each such
Advance will be a Base Rate Advance for the period from the date of its
borrowing to (but excluding) the third Business Day following the Primary
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 Primary 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 Primary Liquidity Provider no less than four Business Days' prior
written notice of such election or (y) elect to maintain the Final Advance as a
Base Rate Advance by not requesting a conversion of the Final Advance to a LIBOR
Advance under Clause (5) of the applicable Notice of Borrowing (or, if such
Final Advance is deemed to have been made, without delivery of a Notice of
Borrowing pursuant to Section 2.06, by requesting, prior to 11:00 A.M. (New York
City time) on the first Business Day immediately following the Borrower's
receipt of the applicable Termination Notice, that such Final Advance not be
converted from a Base Rate Advance to a LIBOR Advance).
(c) Each LIBOR Advance shall bear interest during each Interest
Period at a rate per annum equal to the LIBOR Rate for such Interest Period plus
the Applicable Margin for such LIBOR Advance, payable in arrears on the last day
of such Interest Period and, in the event of the payment of principal of such
LIBOR Advance on a day other than such last day, on the date of such payment (to
the extent of interest accrued on the amount of principal repaid).
(d) Each Base Rate Advance shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin for such Base Rate Advance,
payable in arrears on each Regular Distribution Date and, in the event of the
payment of principal of such Base Rate Advance on a day other than a Regular
Distribution Date, on the date of such payment (to the extent of interest
accrued on the amount of principal repaid).
(e) Each outstanding Unapplied Non-Extension Advance shall bear
interest in an amount equal to the Investment Earnings on amounts on deposit in
the Class G-1 Cash Collateral Account plus the Applicable Margin for such
Unapplied Non-Extension Advance on the amount of such Unapplied Non-Extension
Advance from time to time, payable in arrears on each Regular Distribution Date.
(f) Each amount not paid when due hereunder (whether fees,
commissions, expenses or other amounts or, to the extent permitted by applicable
law, installments of interest on Advances but excluding Advances) shall bear
interest at a rate per annum equal to the Base Rate plus 2.00% until paid.
(g) Each change in the Base Rate shall become effective immediately.
The rates of interest specified in this Section 3.07 with respect to any Advance
or other amount shall be referred to as the "APPLICABLE LIQUIDITY RATE".
Section 3.08. REPLACEMENT OF BORROWER. From time to time and subject
to the successor Borrower's meeting the eligibility requirements set forth in
Section 6.9 of the Intercreditor Agreement applicable to the Subordination
Agent, upon the effective date and time specified in a written and completed
Notice of Replacement Subordination Agent in substantially the form of Annex VI
attached hereto (a "NOTICE OF REPLACEMENT SUBORDINATION AGENT") delivered to the
Primary Liquidity Provider by the then Borrower, the successor Borrower
designated therein shall be substituted for as the Borrower for all purposes
hereunder.
Section 3.09. FUNDING LOSS INDEMNIFICATION. The Borrower shall pay
to the Primary Liquidity Provider, upon the request of the Primary Liquidity
Provider, such amount or amounts as shall be sufficient (in the reasonable
opinion of the Primary 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 Primary Liquidity Provider to fund or maintain any
LIBOR Advance (but excluding loss of anticipated profits) incurred as a result
of:
(1) Any repayment of a LIBOR Advance on a date other than the last
day of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance on the
date for borrowing specified in the relevant notice under Section 2.02.
Section 3.10. ILLEGALITY. Notwithstanding any other provision in
this Agreement, if any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Primary 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 Primary Liquidity Provider (or its Facility
Office) to maintain or fund its LIBOR Advances, then upon notice to the Borrower
by the Primary Liquidity Provider, the outstanding principal amount of the LIBOR
Advances shall be converted to Base Rate Advances (a) immediately upon demand of
the Primary Liquidity Provider, if such change or compliance with such request,
in the judgment of the Primary 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 Primary 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 Primary Liquidity Provider, be otherwise
disadvantageous to the Primary Liquidity Provider.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. CONDITIONS PRECEDENT TO EFFECTIVENESS OF SECTION 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "EFFECTIVE DATE") on which the following conditions precedent have
been satisfied or waived:
(a) The Primary 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 Primary Liquidity Provider:
(i) This Agreement duly executed on behalf of the Borrower,
the Fee Letter applicable to this Agreement duly executed on behalf
of the Borrower and the Tax Letter duly executed on behalf of
Continental;
(ii) The Intercreditor Agreement duly executed on behalf of
each of the parties thereto (other than the Primary Liquidity
Provider);
(iii) Fully executed copies of each of the Operative
Agreements executed and delivered on the Closing Date (other than
this Agreement, the Fee Letter applicable to this Agreement, the Tax
Letter and the Intercreditor Agreement);
(iv) A copy of the Prospectus Supplement and specimen copies
of the Class G-1 Certificates;
(v) An executed copy of each document, instrument, certificate
and opinion delivered on the Closing Date pursuant to the Class G-1
Trust Agreement, the Intercreditor Agreement and the other Operative
Agreements (in the case of each such opinion, other than the opinion
of counsel for the Underwriters, either addressed to the Primary
Liquidity Provider or accompanied by a letter from the counsel
rendering such opinion to the effect that the Primary Liquidity
Provider is entitled to rely on such opinion as of its date as if it
were addressed to the Primary 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 Primary 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 Primary Liquidity Provider created by the Operative Agreements
executed and delivered on the Closing Date;
(vii) An agreement from Continental, pursuant to which (i)
Continental agrees to provide to the Primary 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
Primary Liquidity Provider to inspect Continental's books and
records regarding such transactions, and to discuss such
transactions with officers and employees of Continental; and
(viii) Such other documents, instruments, opinions and
approvals pertaining to the transactions contemplated hereby or by
the other Operative Agreements as the Primary Liquidity Provider
shall have reasonably requested.
(b) The following statement shall be true on and as of the Effective
Date: no event has occurred and is continuing, or would result from the
entering into of this Agreement or the making of any Advance, which
constitutes a Liquidity Event of Default.
(c) The Primary 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 Primary 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, and all
conditions precedent to the purchase of the Class G-1 Certificates and
Class G-2 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 Primary
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 Primary Liquidity Provider to make an Advance on the occasion of each
Borrowing shall be subject to the conditions precedent that the Effective Date
shall have occurred and, on or prior to the date of such Borrowing, the Borrower
shall have delivered a Notice of Borrowing which conforms to the terms and
conditions of this Agreement and has been completed as may be required by the
relevant form of the Notice of Borrowing for the type of Advances requested.
ARTICLE V
COVENANTS
Section 5.01. AFFIRMATIVE COVENANTS OF THE BORROWER. So long as any
Advance shall remain unpaid or the Primary Liquidity Provider shall have any
Maximum Commitment hereunder or the Borrower shall have any obligation to pay
any amount to the Primary Liquidity Provider hereunder, the Borrower will,
unless the Primary 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 Primary Liquidity
Provider with reasonable promptness, such other information and data with
respect to the transactions contemplated by the Operative Agreements as
from time to time may be reasonably requested by the Primary Liquidity
Provider; and permit the Primary 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 Primary 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 Primary Liquidity Provider.
Section 5.02. NEGATIVE COVENANTS OF THE BORROWER. So long as any
Advance shall remain unpaid or the Primary Liquidity Provider shall have any
Maximum Commitment hereunder or the Borrower shall have any obligation to pay
any amount to the Primary 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 Primary Liquidity Provider, which consent shall not
be unreasonably withheld or delayed.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. LIQUIDITY EVENTS OF DEFAULT. If (a) any Liquidity
Event of Default has occurred and is continuing and (b) there is a Performing
Note Deficiency, the Primary 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 Primary 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
Primary Liquidity Provider to promptly make, a Final Advance in accordance with
Section 2.02(d) hereof and Section 3.6(i) of the Intercreditor Agreement, (iii)
all other outstanding Advances to be automatically converted into Final Advances
for purposes of determining the Applicable Liquidity Rate for interest payable
thereon, and (iv) subject to Sections 2.07 and 2.09 hereof, all Advances
(including, without limitation, any Provider Advance and Applied Provider
Advance), any accrued interest thereon and any other amounts outstanding
hereunder to become immediately due and payable to the Primary Liquidity
Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.01. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Primary Liquidity Provider, and, in the case of an amendment
or of a waiver by the Borrower, the Borrower, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
Section 7.02. NOTICES, ETC. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including telecopier and mailed or delivered or sent by telecopier):
Borrower: WILMINGTON TRUST COMPANY
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Capital Market Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Primary Liquidity LANDESBANK HESSEN-THURINGEN
Provider: GIROZENTRALE
Main Tower
Neue Mainzer Xxx. 00 - 00
00000 Xxxxxxxxx xx Xxxx
Xxxxxxx
Attention: Asset Finance
Telephone: 00-00-0000-0000
Telecopy: 00-00-0000-0000
with a copy of any Notice of Borrowing to:
LANDESBANK HESSEN-THURINGEN
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Project Finance/Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or, as to each of the foregoing, at such other address as shall be designated by
such Person in a written notice to the others. All such notices and
communications shall be effective (i) if given by telecopier, when transmitted
to the telecopier number specified above, (ii) if given by mail, when deposited
in the mails addressed as specified above, and (iii) if given by other means,
when delivered at the address specified above, except that written notices to
the Primary Liquidity Provider pursuant to the provisions of Article II and
Article III hereof shall not be effective until received by the Primary
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
Primary 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 Primary Liquidity
Provider such additional assignments, agreements, powers and instruments as the
Primary 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 Primary Liquidity Provider its rights,
powers and remedies hereunder and under the other Operative Agreements.
Section 7.05. INDEMNIFICATION; SURVIVAL OF CERTAIN PROVISIONS. The
Primary Liquidity Provider shall be indemnified hereunder to the extent and in
the manner described in Section 8.1 of the Participation Agreements with respect
to Aircraft. In addition, the Borrower agrees to indemnify, protect, defend and
hold harmless the Primary 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 applicable to this Agreement, the
Intercreditor Agreement or any Financing Agreement; PROVIDED, HOWEVER, that the
Borrower shall not be required to indemnify, protect, defend and hold harmless
any Liquidity Indemnitee in respect of any Expense of such Liquidity Indemnitee
to the extent such Expense is (i) attributable to the gross negligence or
willful misconduct of such Liquidity Indemnitee or any other Liquidity
Indemnitee, (ii) ordinary and usual operating overhead expense, 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, the Tax Letter 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 PRIMARY LIQUIDITY PROVIDER. (a)
Neither the Primary 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 Primary 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 Primary Liquidity Provider, and the Primary 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 Primary Liquidity Provider's
willful misconduct or negligence in determining whether documents presented
hereunder comply with the terms hereof, or (B) any breach by the Primary
Liquidity Provider of any of the terms of this Agreement, including, but not
limited to, the Primary Liquidity Provider's failure to make lawful payment
hereunder after the delivery to it by the Borrower of a Notice of Borrowing
strictly complying with the terms and conditions hereof.
(b) Neither the Primary Liquidity Provider nor any of its officers,
employees, directors or Affiliates shall be liable or responsible in any respect
for (i) any error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in connection with this
Agreement or any Notice of Borrowing delivered hereunder, or (ii) any action,
inaction or omission which may be taken by it in good faith, absent willful
misconduct or negligence (in which event the extent of the Primary 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 Primary 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 Primary Liquidity Provider) of the
Primary 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 Primary Liquidity Provider in
connection with (i) the enforcement of this Agreement or any other Operative
Agreement, (ii) the modification or amendment of, or supplement to, this
Agreement or any other Operative Agreement or such other documents which may be
delivered in connection herewith or therewith (whether or not the same shall
become effective) or (iii) any action or proceeding relating to any order,
injunction, or other process or decree restraining or seeking to restrain the
Primary 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 G-1 Cash Collateral Account. In addition,
the Borrower shall pay any and all recording, stamp and other similar taxes and
fees payable or determined to be payable in connection with the execution,
delivery, filing and recording of this Agreement, any other Operative Agreement
and such other documents, and agrees to save the Primary 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 Primary
Liquidity Provider and their respective successors and assigns, except that
neither the Primary Liquidity Provider (except as otherwise provided in this
Section 7.08) nor (except as contemplated by Section 3.08) the Borrower shall
have the right to assign its rights or obligations hereunder or any interest
herein without the prior written consent of the other party, subject to the
requirements of Section 7.08(b). The Primary 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 Primary Liquidity
Provider may in its sole discretion select, subject to the requirements of
Section 7.08(b). No such granting of participations by the Primary Liquidity
Provider, however, will relieve the Primary Liquidity Provider of its
obligations hereunder. In connection with any participation or any proposed
participation, the Primary 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 Primary Liquidity Provider pursuant to this
Agreement. The Borrower acknowledges and agrees that the Primary 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 Primary 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
Primary Liquidity Provider directly if the Primary Liquidity Provider, rather
than the participant, had held the interest participated).
(b) If, pursuant to subsection (a) above, the Primary 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 Primary Liquidity
Provider (for the benefit of the Primary 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 Primary 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 Primary Liquidity Provider
and the Borrower) to provide the Primary 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
Primary 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 Primary 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 Primary Liquidity Provider from its obligations hereunder.
Section 7.09. Third Party Beneficiary. The Policy Provider is an
intended third party beneficiary with respect to the provisions of Sections
2.02(c) and 2.10 of this Agreement.
Section 7.10. 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 7.11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 7.12. 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 Primary 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 PRIMARY 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 Primary 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 Primary 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 7.13. 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 7.14. ENTIRETY. This Agreement, the Intercreditor Agreement
and the other Operative Agreements to which the Primary 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 7.15. 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 7.16. TRANSFER. The Primary Liquidity Provider hereby
acknowledges and consents to the Transfer contemplated by the Assignment and
Assumption Agreement.
Section 7.17. PRIMARY LIQUIDITY PROVIDER'S OBLIGATION TO MAKE
ADVANCES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF
THE PRIMARY LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S
RIGHTS TO DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES
HEREUNDER, SHALL BE UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR
PERFORMED, IN EACH CASE STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first set forth above.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Subordination Agent, as agent and
trustee for the Class G-1 Trust,
as Borrower
By:
--------------------------------------
Name:
Title:
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as Primary Liquidity Provider
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
ANNEX I TO
REVOLVING CREDIT AGREEMENT
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "BORROWER"), hereby certifies to Landesbank Hessen-Thuringen
Girozentrale (the "PRIMARY LIQUIDITY PROVIDER"), with reference to the Revolving
Credit Agreement (2002-1G-1) dated as of March 25, 2002, between the Borrower
and the Primary 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 Primary Liquidity Provider to be
used, subject to clause (3)(v) below, for the payment of interest on the
Class G-1 Certificates which was payable on ____________, ____ (the
"DISTRIBUTION DATE") in accordance with the terms and provisions of the
Class G-1 Trust Agreement and the Class G-1 Certificates, which Advance is
requested to be made on ____________, ____. The Interest Advance should be
transferred to [name of bank/wire instructions/ABA number] in favor of
account number [ ], reference [ ].
(3) The amount of the Interest Advance requested hereby (i) is
$[_________________], to be applied in respect of the payment of the
interest which was due and payable on the Class G-1 Certificates on the
Distribution Date, (ii) does not include any amount with respect to the
payment of principal of, or premium on, the Class G-1 Certificates, or
principal of, or interest or premium on, the Class G-2 Certificates, the
Class H Certificates, the Class I Certificates or the Class J
Certificates, (iii) was computed in accordance with the provisions of the
Class G-1 Certificates, the Class G-1 Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I), (iv) does not exceed the Maximum Available Commitment on the
date hereof, (v) does not include any amount of interest which was due and
payable on the Class G-1 Certificates on such Distribution Date but which
remains unpaid due to the failure of the Depositary to pay any amount of
accrued interest on the Deposits on such Distribution Date and (vi) has
not been and is not the subject of a prior or contemporaneous Notice of
Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will apply the same in accordance with
the terms of Section 3.6(b) of the Intercreditor Agreement, (b) no portion
of such amount shall be applied by the Borrower for any other purpose and
(c) no portion of such amount until so applied shall be commingled with
other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, the making of the Interest Advance as requested by this Notice of
Borrowing shall automatically reduce, subject to reinstatement in accordance
with the terms of the Liquidity Agreement, the Maximum Available Commitment by
an amount equal to the amount of the Interest Advance requested to be made
hereby as set forth in clause (i) of paragraph (3) of this Notice of Borrowing
and such reduction shall automatically result in corresponding reductions in the
amounts available to be borrowed pursuant to a subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the ____ day of _________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:
------------------------------------
Name:
Title:
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert copy of computations in accordance with Interest
Advance Notice of Borrowing]
ANNEX II TO
REVOLVING CREDIT AGREEMENT
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "BORROWER"), hereby certifies to Landesbank Hessen-Thuringen
Girozentrale (the "PRIMARY LIQUIDITY PROVIDER"), with reference to the Revolving
Credit Agreement (2002-1G-1) dated as of March 25, 2002, between the Borrower
and the Primary 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 Primary Liquidity Provider to
be used for the funding of the Class G-1 Cash Collateral Account in
accordance with Section 3.6(d) of the Intercreditor Agreement, which
Advance is requested to be made on __________, ____. The Non-Extension
Advance should be transferred to [name of bank/wire instructions/ABA
number] in favor of account number [ ], reference [ ].
(3) The amount of the Non-Extension Advance requested hereby (i) is
$_______________.__, which equals the Maximum Available Commitment on the
date hereof and is to be applied in respect of the funding of the Class
G-1 Cash Collateral Account in accordance with Section 3.6(d) of the
Intercreditor Agreement, (ii) does not include any amount with respect to
the payment of the principal of, or premium on, the Class G-1
Certificates, or principal of, or interest or premium on, the Class G-2
Certificates, the Class H Certificates, the Class I Certificates or the
Class J Certificates, (iii) was computed in accordance with the provisions
of the Class G-1 Certificates, the Class G-1 Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I), and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Class
G-1 Cash Collateral Account and apply the same in accordance with the
terms of Section 3.6(d) of the Intercreditor Agreement, (b) no portion of
such amount shall be applied by the Borrower for any other purpose and (c)
no portion of such amount until so applied shall be commingled with other
funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Non-Extension Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the obligation
of the Primary Liquidity Provider to make further Advances under the Liquidity
Agreement; and (B) following the making by the Primary Liquidity Provider of the
Non-Extension Advance requested by this Notice of Borrowing, the Borrower shall
not be entitled to request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the ____ day of _________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent,
as Borrower
By:
------------------------------------
Name:
Title:
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert copy of computations in accordance with Non-Extension
Advance Notice of Borrowing]
ANNEX III TO
REVOLVING CREDIT AGREEMENT
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "BORROWER"), hereby certifies to Landesbank Hessen-Thuringen
Girozentrale (the "PRIMARY LIQUIDITY PROVIDER"), with reference to the Revolving
Credit Agreement (2002-1G-1) dated as of March 25, 2002, between the Borrower
and the Primary 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 Primary Liquidity Provider to be
used for the funding of the Class G-1 Cash Collateral Account in
accordance with Section 3.6(c) of the Intercreditor Agreement by reason of
the occurrence of a Downgrade Event, which Advance is requested to be made
on __________, ____. The Downgrade Advance should be transferred to [name
of bank/wire instructions/ABA number] in favor of account number [ ],
reference [ ].
(3) The amount of the Downgrade Advance requested hereby (i) is
$_______________.__, which equals the Maximum Available Commitment on the
date hereof and is to be applied in respect of the funding of the Class
G-1 Cash Collateral Account in accordance with Section 3.6(c) of the
Intercreditor Agreement, (ii) does not include any amount with respect to
the payment of the principal of, or premium on, the Class G-1
Certificates, or principal of, or interest or premium on, the Class G-2
Certificates, the Class H Certificates, the Class I Certificates or the
Class J Certificates, (iii) was computed in accordance with the provisions
of the Class G-1 Certificates, the Class G-1 Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I), and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Class
G-1 Cash Collateral Account and apply the same in accordance with the
terms of Section 3.6(c) of the Intercreditor Agreement, (b) no portion of
such amount shall be applied by the Borrower for any other purpose and (c)
no portion of such amount until so applied shall be commingled with other
funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Downgrade Advance as requested by this Notice
of Borrowing shall automatically and irrevocably terminate the obligation of the
Primary Liquidity Provider to make further Advances under the Liquidity
Agreement; and (B) following the making by the Primary Liquidity Provider of the
Downgrade Advance requested by this Notice of Borrowing, the Borrower shall not
be entitled to request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the ____ day of _________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent,
as Borrower
By:
------------------------------------
Name:
Title:
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert copy of computations in accordance with Downgrade
Advance Notice of Borrowing]
ANNEX IV TO
REVOLVING CREDIT AGREEMENT
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "BORROWER"), hereby certifies to Landesbank Hessen-Thuringen
Girozentrale (the "PRIMARY LIQUIDITY PROVIDER"), with reference to the Revolving
Credit Agreement (2002-1G-1) dated as of March 25, 2002, between the Borrower
and the Primary 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 Primary Liquidity Provider to be used
for the funding of the Class G-1 Cash Collateral Account in accordance
with Section 3.6(i) of the Intercreditor Agreement by reason of the
receipt by the Borrower of a Termination Notice from the Primary 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 G-1 Cash Collateral Account in accordance with Section 3.6(i) of the
Intercreditor Agreement, (ii) does not include any amount with respect to
the payment of principal of, or premium on, the Class G-1 Certificates, or
principal of, or interest or premium on, the Class G-2 Certificates, the
Class H Certificates, the Class I Certificates or the Class J
Certificates, (iii) was computed in accordance with the provisions of the
Class G-1 Certificates, the Class G-1 Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I), and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Class
G-1 Cash Collateral Account and apply the same in accordance with the
terms of Section 3.6(i) of the Intercreditor Agreement, (b) no portion of
such amount shall be applied by the Borrower for any other purpose and (c)
no portion of such amount until so applied shall be commingled with other
funds held by the Borrower.
(5) The Borrower hereby requests that the Advance requested hereby
be a Base Rate Advance [and that such Base Rate Advance be converted into
a LIBOR Advance on the third Business Day following your receipt of this
notice.]
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Final Advance as requested by this Notice of
Borrowing shall automatically and irrevocably terminate the obligation of the
Primary Liquidity Provider to make further Advances under the Liquidity
Agreement; and (B) following the making by the Primary Liquidity Provider of the
Final Advance requested by this Notice of Borrowing, the Borrower shall not be
entitled to request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this
Notice of Borrowing as of the ____ day of _________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent,
as Borrower
By:
------------------------------------
Name:
Title:
-------------------
Bracketed language may be included at Borrower's option.
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert copy of computations in accordance with Final Advance
Notice of Borrowing]
ANNEX V TO
REVOLVING CREDIT AGREEMENT
NOTICE OF TERMINATION
[Date]
Wilmington Trust Company,
as Subordination Agent, as Borrower
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Revolving Credit Agreement dated as of March 25, 2002 between
Wilmington Trust Company, as Subordination Agent, as agent
and trustee for the Continental Airlines Pass Through Trust,
2002-1G-1-[O/S], as Borrower, and Landesbank Hessen-Thuringen
Girozentrale (the "LIQUIDITY AGREEMENT")
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.01 of the Liquidity
Agreement, by reason of the occurrence of a Liquidity Event of Default and the
existence of a Performing Note Deficiency (each as defined therein), we are
giving this notice to you in order to cause (i) our obligations to make Advances
(as defined therein) under such Liquidity Agreement to terminate on the fifth
Business Day after the date on which you receive this notice and (ii) you to
request a Final Advance under the Liquidity Agreement pursuant to Section 3.6(i)
of the Intercreditor Agreement (as defined in the Liquidity Agreement) as a
consequence of your receipt of this notice.
THIS NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR UNDER THE
LIQUIDITY AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY
AGREEMENT WILL TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU
RECEIVE THIS NOTICE.
Very truly yours,
LANDESBANK HESSEN-THURINGEN GIROZENTRALE
as Primary Liquidity Provider
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
cc: Wilmington Trust Company,
as Class G-1 Trustee
ANNEX VI TO
REVOLVING CREDIT AGREEMENT
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement dated as of March 25, 2002, between
Wilmington Trust Company, as Subordination Agent, as agent and
trustee for the Continental Airlines Pass Through Trust,
2002-1G-1-[O/S], as Borrower, and Landesbank Hessen-Thuringen
Girozentrale (the "LIQUIDITY AGREEMENT")
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
------------------------------
[Name of Transferee]
------------------------------
[Address of Transferee]
all rights and obligations of the undersigned as Borrower under the Liquidity
Agreement referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the first
paragraph of the Liquidity Agreement, pursuant to the terms of Section 8.1 of
the Intercreditor Agreement.
By this transfer, all rights of the undersigned as Borrower under
the Liquidity Agreement are transferred to the transferee and the transferee
shall hereafter have the sole rights and obligations as Borrower thereunder. The
undersigned shall pay any costs and expenses of such transfer, including, but
not limited to, transfer taxes or governmental charges.
We ask that this transfer be effective as of _______________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent,
as Borrower
By:
-------------------------------------
Name:
Title:
SCHEDULE 1
* Subject to adjustment in accordance with the Following
Business Day Convention (as defined in the Class G-1
Above Cap Liquidity Facility)
BEGINNING OF INTEREST PERIOD* CAPPED LIBOR
Mar 26, 2002 7.00%
May 15, 2002 7.05%
Aug 15, 2002 7.15%
Nov 15, 2002 7.15%
Feb 15, 2003 7.25%
May 15, 2003 7.25%
Aug 15, 2003 7.40%
Nov 15, 2003 7.40%
Feb 15, 2004 7.60%
May 15, 2004 7.60%
Aug 15, 2004 7.85%
Nov 15, 2004 7.85%
Feb 15, 2005 8.15%
May 15, 2005 8.15%
Aug 15, 2005 8.50%
Nov 15, 2005 8.50%
Feb 15, 2006 8.90%
May 15, 2006 8.90%
Aug 15, 2006 9.35%
Nov 15, 2006 9.35%
Feb 15, 2007 9.85%
May 15, 2007 9.85%
Aug 15, 2007 10.35%
Nov 15, 2007 10.35%
Feb 15, 2008 10.85%
May 15, 2008 10.85%
Aug 15, 2008 11.40%
Nov 15, 2008 11.40%
Feb 15, 2009 12.10%
May 15, 2009 12.10%
Aug 15, 2009 12.65%
Nov 15, 2009 12.65%
Feb 15, 2010 13.35%
May 15, 2010 13.35%
Aug 15, 2010 14.10%
Nov 15, 2010 14.10%
Feb 15, 2011 14.75%
May 15, 2011 14.75%
Aug 15, 2011 15.00%
Nov 15, 2011 15.00%
Feb 15, 2012 15.00%
May 15, 2012 15.00%
Aug 15, 2012 15.00%
Nov 15, 2012 15.00%
Feb 15, 2013 15.00%
May 15, 2013 15.00%
Aug 15, 2013 15.00%
