REVOLVING CREDIT AGREEMENT (2006-1G) dated as of June 9, 2006 between WILMINGTON TRUST COMPANY, as Subordination Agent, as agent and trustee for the Continental Airlines Pass Through Trust 2006-1G, as Borrower and MORGAN STANLEY BANK, as Primary...
_________________________________________________________________
REVOLVING
CREDIT AGREEMENT (2006-1G)
dated
as
of June 9, 2006
between
WILMINGTON
TRUST COMPANY,
as
Subordination Agent, as agent and trustee for the
Continental
Airlines Pass Through Trust 2006-1G,
as
Borrower
and
XXXXXX
XXXXXXX BANK, as Primary Liquidity Provider
_________________________________________________________________
Continental
Airlines Pass Through Trust 2006-1G
USD
3-month LIBOR + 0.35% Continental Airlines
Pass
Through Certificates, Series 2006-1G
Page
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Article
I DEFINITIONS
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1
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Section
1.01
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1
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Article
II AMOUNT AND TERMS OF THE
COMMITMENT
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7
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Section
2.01
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7
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Section
2.02
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7
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Section
2.03
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9
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Section
2.04
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9
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Section
2.05
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9
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Section
2.06
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10
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Section
2.07
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11
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Section
2.08
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11
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Section
2.09
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11
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Section
2.10
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12
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Article
III OBLIGATIONS OF THE BORROWER
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12
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Section
3.01
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12
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Section
3.02
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13
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Section
3.03
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14
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Section
3.04
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15
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Section
3.05
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15
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Section
3.06
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15
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Section
3.07
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15
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Section
3.08
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17
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Section
3.09
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17
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Section
3.10
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17
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Section
3.11
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18
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Article
IV CONDITIONS PRECEDENT
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18
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Section
4.01
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18
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Section
4.02
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20
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Article
V COVENANTS
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20
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Section
5.01
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20
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Section
5.02
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21
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Article
VI LIQUIDITY EVENTS OF DEFAULT
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21
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Section
6.01
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21
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Section
6.02
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21
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Article
VII MISCELLANEOUS
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21
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Section
7.01
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21
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Section
7.02
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22
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Section
7.03
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23
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i
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Section
7.04
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23
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Section
7.05
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23
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Section
7.06
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23
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Section
7.07
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24
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Section
7.08
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24
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Section
7.09
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26
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Section
7.10
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26
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Section
7.11
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26
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Section
7.12
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27
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Section
7.13
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27
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Section
7.14
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27
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SECTION
7.15
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27
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ANNEX
III Downgrade
Advance Notice of Borrowing
ANNEX
IV Final
Advance Notice of Borrowing
ANNEX
V Notice
of Termination
REVOLVING
CREDIT AGREEMENT (2006-1G)
This
REVOLVING CREDIT AGREEMENT (2006-1G), dated as of June 9, 2006, is made by
and
between WILMINGTON TRUST COMPANY, a Delaware banking 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 Trust
(as defined below) (the “Borrower”),
and
XXXXXX XXXXXXX BANK, a Utah industrial bank (the “Primary
Liquidity Provider”).
W
I T N E
S S E T H:
WHEREAS,
pursuant to the Class G 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 Trust is issuing the Class G Certificates;
and
WHEREAS,
the Borrower, in order to support the timely payment of a portion of the
interest on the Class G 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 mutual agreements herein contained, and
of
other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
DEFINITIONS
Section
1.01 Certain
Defined Terms.
(a) As
used in this Agreement and unless expressly indicated, or unless the context
clearly requires otherwise, the following capitalized terms shall have the
following respective meanings for all purposes of this Agreement:
“Additional
Costs”
has
the
meaning assigned to such term in Section 3.01.
“Advance”
means
an Interest Advance, a Final Advance, a Provider Advance or an Applied Provider
Advance, as the case may be.
“Agreement”
means
this Revolving Credit Agreement (2006-1G), dated as of June 9, 2006, between
the
Borrower and the Primary Liquidity Provider, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
“Applicable
Liquidity Rate”
has
the
meaning assigned to such term in Section 3.07(g).
“Applicable
Margin”
means
(i) with respect to any Unpaid Advance or Applied Provider Advance, 2.00% per
annum and (ii) with respect to any Unapplied Provider Advance, the rate per
annum specified in the Fee Letter applicable to this Agreement.
“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).
“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, a Sunday or a day on which commercial banks
are
required or authorized to close in Houston, Texas, West Valley City, Utah,
New
York, New York or, so long as any Class G Certificate is outstanding, the city
and state in which the Class G Trustee, the Borrower or the Mortgagee maintains
its Corporate
Trust Office or receives or disburses funds, and, if the applicable Business
Day
relates to any
Advance or other amount bearing interest based on the LIBOR Rate, on which
dealings are carried on in the London interbank market.
“Consent
Period”
has
the
meaning assigned to such term in Section 2.10.
“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 short-term issuer credit rating, as the case may be, issued by either Rating
Agency below the applicable Threshold Rating.
“Effective
Date”
has
the
meaning assigned to such term 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, based on or measured by the income of, or franchise Taxes
imposed on, the Primary Liquidity Provider or its Lending Office by the
jurisdiction where such Primary Liquidity Provider’s principal office or such
Lending Office is located or any other taxing jurisdiction in which such Tax
is
imposed as a result of the Primary Liquidity Provider being, or having been,
organized in, or conducting, or having conducted, any activities unrelated
to
the transactions contemplated by the Operative Agreements in, such jurisdiction
and (ii) Excluded Withholding Taxes.
“Excluded
Withholding Taxes”
means
(i) withholding Taxes imposed by the United States except (but only in the
case
of a successor Primary Liquidity Provider organized under the laws of a
jurisdiction outside the United States) 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 Lending
Office, after the date on which such successor Primary Liquidity Provider
obtains its interest or on which the Lending Office is changed, and (ii) any
withholding Taxes imposed by the United States which are imposed or increased
as
a result of the 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, the Primary Liquidity Provider
is
legally entitled to provide) which is reasonably requested by the Borrower
to
establish that payments under this Agreement are exempt from (or entitled to
a
reduced rate of) withholding Tax.
“Expenses”
means
liabilities, obligations, damages, settlements, penalties, claims, actions,
suits, costs, expenses, and disbursements (including, without limitation,
reasonable fees and disbursements of legal counsel and costs of investigation),
provided
that
Expenses shall not include any Taxes other than sales, use and V.A.T. taxes
imposed on fees and expenses payable pursuant to Section 7.07.
“Expiry
Date”
means
June 7, 2007, initially, or any date to which the Expiry Date is extended
pursuant to Section 2.10.
“Final
Advance”
means
an Advance made pursuant to Section 2.02(d).
“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.
“Indemnified
Tax”
has
the
meaning assigned to such term in Section 3.03(a).
“Intercreditor
Agreement”
means
the Intercreditor Agreement, dated as of the date hereof, among the Trustees,
the Primary Liquidity Provider, the 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 (A) the Primary
Liquidity Provider’s receipt of the Notice of Borrowing for such LIBOR Advance
or (B) the withdrawal of funds from the Primary Cash Collateral Account for
the
purpose of paying interest on the Class G 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).
“Lending
Office”
means
the lending office of the Primary Liquidity Provider presently located at the
offices of Xxxxxx Xxxxxxx, New York, New York, or such other lending office
as
the Primary Liquidity Provider from time to time shall notify the Borrower
as
its Lending Office hereunder; provided
that the
Primary Liquidity Provider shall not change its Lending Office to a lending
office outside the United States of America except in accordance with Section
3.11 hereof.
“LIBOR
Advance”
means
an Advance bearing interest at a rate based upon the LIBOR Rate.
“LIBOR
Rate”
means,
with respect to any Interest Period,
(i) the
rate
per annum appearing on display page 3750 (British Bankers Association-LIBOR)
of
the Telerate Service (or any successor or substitute therefor) at approximately
11:00 a.m. (London time) two Business Days before the first day of such Interest
Period, as the rate for dollar deposits with a maturity comparable to such
Interest Period, or
(ii) if
the
rate calculated pursuant to clause (i) above is not available, the average
(rounded upwards, if necessary, to the next 1/16 of 1%) of the rates per annum
at which deposits in dollars are offered for the relevant Interest Period by
three banks of recognized standing selected by the 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
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”
means,
subject to the proviso contained in the third sentence of Section 2.02(a),
at
any time of determination, (a) the Maximum Commitment at such time less (b)
the
aggregate amount of each Interest Advance outstanding at such time; provided
that
following a Provider Advance or a Final Advance, the Maximum Available
Commitment shall be zero.
“Maximum
Commitment”
means
initially $39,930,875, as the same may be reduced from time to time in
accordance with Section 2.04(a).
“Non-Extension
Advance”
means
an Advance made pursuant to Section 2.02(b).
“Notice
of Borrowing”
has
the
meaning assigned to such term in Section 2.02(e).
“Notice
of Replacement Subordination Agent”
has
the
meaning assigned to such term in Section 3.08.
“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 May 24, 2006 relating to the Certificates,
as such Prospectus Supplement may be amended or supplemented.
“Provider
Advance”
means
a
Downgrade Advance or a Non-Extension Advance.
“Regulatory
Change”
has
the
meaning assigned to such term in Section 3.01.
“Replenishment
Amount”
has
the
meaning assigned to such term in Section 2.06(b).
“Required
Amount”
means,
for any day, the sum of the aggregate amount of interest, calculated at the
rate
per annum equal to the Capped Interest Rate for the Class G Certificates, that
would be payable on the Class G Certificates on each of the eight successive
quarterly Regular Distribution Dates immediately following such day or, if
such
day is a Regular Distribution Date, on such day and the succeeding seven
quarterly Regular Distribution Dates, in each case calculated on the basis
of
the Pool Balance of the Class G Certificates on such day and without regard
to
expected future payments of principal on the Class G Certificates. The Pool
Balance
solely for purposes of the definition of Required Amount shall, in the event
of
any Policy Provider Election, be deemed to be reduced to zero.
“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 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 3.5(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; (v)
the date on which no Advance is, or may (including by reason of reinstatement
as
herein provided) become, available for a Borrowing hereunder; (vi) the
occurrence of the Liquidity Provider Reimbursement Date; and (vii) the
occurrence of the Special Termination.
“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) For
the
purposes of this Agreement, the following terms shall have the respective
meanings assigned to such terms in the Intercreditor Agreement:
“Above-Cap
Liquidity Provider”,
“Acceleration”,
“Affiliate”,
“Capped
Interest Rate”,
“Certificate”,
“Class
B Certificates”,
“Class
G Certificateholder”,
“Class
G Certificates”,
“Class
G Trust”,
“Class
G Trust Agreement”,
“Class
G Trustee”,
“Closing
Date”,
“Continental”,
“Continental
Bankruptcy Event”,
“Controlling
Party”,
“Corporate
Trust Office”,
“Distribution
Date”,
“Downgraded
Facility”,
“Equipment
Notes”,
“Fee
Letters”,
“Final
Legal Distribution Date”,
“Investment
Earnings”,
“Liquidity
Facility”,
“Liquidity
Obligations”,
“Liquidity
Provider Reimbursement Date”,
“Xxxxx’x”,
“Mortgagee”,
“Non-Extended
Facility”,
“Non-Performing
Equipment Note”,
“Note
Purchase Agreement”,
“Operative
Agreements”,
“Payment
Default”,
“Person”,
“Policy”,
“Policy
Drawings”,
“Policy
Provider”,
“Policy
Provider Election”,
“Pool
Balance”,
“Premium”,
“Primary
Cash Collateral Account”,
“Primary
Liquidity Facility”,
“Rating
Agencies”,
“Ratings
Confirmation”,
“Regular
Distribution Dates”,
“Replacement
Primary
Liquidity
Facility”,
“Responsible
Officer”,
“Scheduled
Payment”,
“Special
Payment”,
“Special
Termination”,
“Standard
& Poor’s”,
“Stated
Interest Rate”,
“Subordination
Agent”,
“Taxes”,
“Threshold
Rating”,
“Trust
Agreement”,
“Trustees”,
“Underwriter”
and
“Underwriting
Agreement”.
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 12:00
noon (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 with respect to the Class G Certificates at the Stated Interest
Rate for the applicable Interest Period (calculated assuming that Continental
will not cure any Payment Default) in accordance with Section 3.5(a) of the
Intercreditor Agreement. Each Interest Advance made hereunder shall
automatically reduce the Maximum Available Commitment and the amount available
to be borrowed hereunder by subsequent Advances by the amount of such Interest
Advance (subject to reinstatement as provided in the next sentence). Upon
repayment to the Primary Liquidity Provider in full or in part of the amount
of
any Interest Advance made pursuant to this Section 2.02(a), together with
accrued interest thereon (as provided herein), the Maximum Available Commitment
shall be reinstated by an amount equal to the amount of such Interest Advance
so
repaid but not to exceed the Maximum Commitment; provided,
however,
that
the Maximum Available Commitment shall not be so reinstated at any time if
(x)
any Equipment Note is a Non-Performing Equipment Note and a Liquidity Event
of
Default shall have occurred and be continuing or (y) a Final Advance has been
made.
(b) A
Non-Extension Advance shall be made in a single Borrowing if this Agreement
is
not extended in accordance with Section 3.5(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 3.5(d)
within the time period specified in such Section 3.5(d)) 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 Primary Cash Collateral Account
in
accordance with such Section 3.5(d) and Section 3.5(f) of the Intercreditor
Agreement.
(c) A
Downgrade Advance shall be made in a single Borrowing upon the occurrence of
a
Downgrade Event (as provided for in Section 3.5(c) of the Intercreditor
Agreement)
unless a Replacement Primary Liquidity Facility to replace this Agreement shall
have been previously delivered to the Borrower in accordance with
Section 3.5(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 Primary Cash Collateral Account in accordance with Sections 3.5(c)
and
3.5(f) of the Intercreditor Agreement.
(d) A
Final
Advance shall be made in a single Borrowing upon the receipt by the Borrower
of
a Termination Notice from the 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
Primary Cash Collateral Account in accordance with Sections 3.5(f) and 3.5(i)
of
the Intercreditor Agreement.
(e) Each
Borrowing shall be made on notice in writing (a “Notice
of Borrowing”)
in
substantially the form required by Section 2.02(a), 2.02(b), 2.02(c) or 2.02(d),
as the case may be, given by the Borrower to the Primary Liquidity Provider.
Each Notice of Borrowing shall be effective upon delivery of a copy thereof
to
the Primary Liquidity Provider’s office at the address specified in Section
7.02. If a Notice of Borrowing is delivered by the Borrower in respect of any
Borrowing no later than 12:00 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 12:00
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.
(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
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), 2.02(c) or 2.02(d) hereof to fund the Primary Cash
Collateral Account, the Primary Liquidity Provider shall have no interest in
or
rights to the Primary Cash Collateral Account, the funds constituting such
Advance or any other amounts from time to time on deposit in the Primary Cash
Collateral Account; provided
that the
foregoing shall not affect or impair the obligations of the Subordination Agent
to make the distributions contemplated by Section 3.5(e) or 3.5(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 Primary Cash Collateral Account to the extent
provided in Section 2.2(b) of the Intercreditor Agreement. By paying to the
Borrower proceeds of Advances requested by the Borrower in accordance with
the
provisions of this Agreement, the 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 Reductions
or Termination of the Maximum Commitment.
(a) Automatic
Reduction.
Promptly following each date on which the Required Amount is reduced as a result
of a reduction in the Pool Balance of the Class G Certificates (including by
reason of a Policy Provider Election with respect to the Series G Equipment
Note) or otherwise, the Maximum Commitment shall automatically be reduced to
an
amount equal to such reduced Required Amount (as calculated by the Borrower).
The Borrower shall give notice of any such automatic reduction 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 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”)
(if
multiple Interest Advances are outstanding, any such repayment to be applied
in
the order in which such Interest Advances have been made, starting with the
earliest), plus (b) interest on the amount of each such Unpaid Advance as
provided in Section 3.07 hereof; provided
that if
(i) the 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 Primary 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 Primary Cash Collateral Account and invested and withdrawn from the
Primary Cash Collateral Account as set forth in Sections 3.5(c), 3.5(d), 3.5(e)
and 3.5(f) of the Intercreditor Agreement. Subject to Sections 2.07 and 2.09,
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 hereof; provided,
however,
that
amounts in respect of a Provider Advance withdrawn from the Primary Cash
Collateral Account for the purpose of paying interest on the Class G
Certificates in accordance with Section 3.5(f) of the Intercreditor Agreement
(the amount of any such withdrawal being (y) in the case of a Downgrade Advance,
an “Applied
Downgrade Advance”
and
(z)
in the case of a Non-Extension Advance, an “Applied
Non-Extension Advance”
and,
together with an Applied Downgrade Advance, an “Applied
Provider Advance”)
shall
thereafter (subject to Section 2.06(b)) be treated as an Interest Advance under
this Agreement for purposes of determining the Applicable Liquidity Rate for
interest payable thereon; 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 and as an Applied
Downgrade Advance or Applied Non-Extension Advance, as the case may be, for
purposes of Section 2.6(c) of the Intercreditor Agreement. Subject to Sections
2.07 and 2.09 hereof, immediately upon the withdrawal of any amounts from the
Primary 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 Primary Cash Collateral Account of any amount pursuant
to clause “fourth” of Section 3.2 of the Intercreditor Agreement (any such
amount being a “Replenishment
Amount”)
for
the purpose of replenishing or increasing the balance thereof up to the Required
Amount at such time, (i) the aggregate outstanding principal amount of all
Applied Provider Advances (and of Provider Advances treated as an Interest
Advance for purposes of determining the Applicable Liquidity Rate for interest
payable thereon) shall be automatically reduced by the amount of such
Replenishment Amount (if multiple Applied Provider Advances are outstanding,
such Replenishment Amount to be applied in the order in which such Applied
Provider Advances have been made, starting with the earliest) and (ii) the
aggregate outstanding
principal
amount of all Unapplied Provider Advances shall be automatically increased
by
the amount of such Replenishment Amount.
(c) Upon
the
provision of a Replacement Primary Liquidity Facility in replacement of this
Agreement in accordance with Section 3.5(e) of the Intercreditor Agreement,
and
upon the payment in full of the Class G Certificates, amounts remaining on
deposit in the Primary Cash Collateral Account after giving effect to any
Applied Provider Advance on the date of such replacement shall be reimbursed
to
the replaced Primary Liquidity Provider, but only to the extent such amounts
are
necessary to repay in full to the replaced 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 3.5(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
and shall discharge in full the corresponding obligations of the Borrower
hereunder (or, if not provided for in the Intercreditor Agreement, then in
such
manner as the 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 including, without
limitation, Section 7.05 and 7.07 hereof, shall be made only from the amounts
that constitute Scheduled Payments, Special Payments or payments under the
Fee
Letter and Section 8.1 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 in respect of payments to be made by the Borrower hereunder to
the
extent available for distribution to it as provided in the Intercreditor
Agreement and this Agreement and that the Borrower, in its individual capacity,
is not personally liable to it for any amounts payable or liability under this
Agreement except as expressly provided in this Agreement, the Intercreditor
Agreement or the Note Purchase Agreement. Amounts on deposit in the Primary
Cash
Collateral Account shall be available to the Borrower to make payments under
this Agreement only to the extent and for the purposes expressly contemplated
in
Section 3.5(f) of the Intercreditor Agreement. Nothing herein shall limit or
otherwise
affect the right of the Primary Liquidity Provider to receive payment from
the
Policy Provider under Section 3.6(d) 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
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 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, 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 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 3.5(e) of the Intercreditor Agreement), the Borrower
shall be entitled on and after the date on which the Consent Period ends (but
prior to the then effective Expiry Date) to request a Non-Extension Advance
in
accordance with Section 2.02(b) hereof and Section 3.5(d) of the Intercreditor
Agreement.
OBLIGATIONS
OF THE BORROWER
Section
3.01 Increased
Costs.
The
Borrower shall pay to the 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 with respect to Excluded Taxes); or (2) imposes or
modifies any reserve, special deposit, compulsory loan or similar requirements
relating to any extensions of credit or other assets of, or any deposits with
other liabilities of, the 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 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 Section 3.11, 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 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 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
3.03 Payments
Free of Deductions.
(a) All
payments made by the Borrower under this Agreement shall be made free and clear
of, and without reduction or withholding for or on account of any present or
future Taxes of any nature whatsoever now or hereafter imposed, levied,
collected, withheld or assessed, other than Excluded Taxes (such non-excluded
Taxes being referred to herein, collectively, as “Indemnified
Taxes”
and,
individually, as an “Indemnified
Tax”).
If
any 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 Taxes (including any additional
Tax
required to be deducted or withheld in respect of the additional amounts payable
under clause (ii) hereof) and make such reports or returns in connection
therewith at the time or times and in the manner prescribed by applicable law,
and (ii) in the case of Indemnified Taxes, the amounts payable to the Primary
Liquidity Provider shall be increased to the extent necessary to yield to the
Primary Liquidity Provider (after deduction or withholding for or on account
of
all Indemnified Taxes required to be deducted or withheld by reason of the
receipt or accrual of the additional amounts payable pursuant to this clause
(ii)) interest or any other such amounts payable under this Agreement at the
rates or in the amounts specified in this Agreement.
If
the
Primary Liquidity Provider (including a successor Primary Liquidity Provider)
is
not organized under the laws of the United States or any State thereof, to
the
extent it is eligible to do so, the Primary Liquidity Provider agrees to provide
to the Borrower, prior to the first date any amount is payable to it hereunder,
two executed original copies of Internal Revenue Service Form W-8BEN or W-8ECI,
as appropriate, or any successor or other form prescribed by the Internal
Revenue Service, certifying that the Primary Liquidity Provider is exempt from
or entitled to a reduced rate of United States withholding tax on payments
pursuant to this Agreement. In addition, the Primary Liquidity Provider will
provide, from time to time upon the reasonable request of the Borrower, such
additional forms or documentation as may be necessary to establish an available
exemption from (or an entitlement to a reduced rate of) withholding tax on
payments hereunder. Within 30 days after the date of each payment hereunder, the
Borrower shall furnish to the Primary Liquidity Provider the original or
certified copy of (or other documentary evidence of) the payment of the
Indemnified Taxes applicable to such payment.
(b) If
the
Primary Liquidity Provider (including a successor Primary Liquidity Provider)
is
not organized under the laws of the United States or any State thereof, all
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
that are imposed by a jurisdiction in which the Primary Liquidity Provider
is
organized, has its Lending Office or maintains its principal place of business.
If any such Taxes are required to be withheld or deducted from any Advances,
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) shall be sufficient to yield to the Borrower the full amount that would
have been received by it had no such withholding or deduction been required.
The
Borrower shall, for federal income tax purposes and for all purposes hereunder,
treat such payments as Interest Advances, and, as such, will treat such payments
as loans made by the Primary Liquidity Provider to the Borrower, unless
otherwise required by law. 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 required to be deducted
or withheld from amounts payable by the Primary Liquidity Provider hereunder
is
reasonably available to the Borrower to establish that payments under this
Agreement are exempt from (or entitled to a reduced rate of) Tax, the Borrower
shall deliver to the 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 such 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 U.S. dollars, to
the
Primary Liquidity Provider in immediately available funds, by wire transfer
to
the account of Xxxxxx Xxxxxxx Bank, at Citibank, New York, New York, ABA No.
000000000, Account Name: MS Bank, Account No. 00000000; or to such other U.S.
bank account as the Primary Liquidity Provider may from time to time direct
the
Subordination Agent.
Section
3.05 Computations.
All
computations of interest based on the Base Rate shall be made on the basis
of a
year of 365 or 366 days, as the case may be, and all computations of interest
based on the LIBOR Rate shall be made on the basis of a year of 360 days, in
each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest is
payable.
Section
3.06 Payment
on Non-Business Days.
Whenever
any payment to be made hereunder shall be stated to be due on a day other than
a
Business Day, such payment shall be made on the next succeeding Business Day
and
no additional interest shall be due as a result (and if so made, shall be deemed
to have been made when due). If any payment in respect of interest on an Advance
is so deferred to the next succeeding Business Day, such deferral shall not
delay the commencement of the next Interest Period for such Advance (if such
Advance is a LIBOR Advance) or reduce the number of days for which interest
will
be payable on such Advance on the next interest payment date for such
Advance.
Section
3.07 Interest.
(a)
Subject to Section 2.09, the Borrower shall pay, or shall cause to be paid,
without duplication, interest on (i) the unpaid principal amount of each Advance
from and including the date of such Advance (or, in the case of an Applied
Provider Advance, from and including the date on which the amount thereof was
withdrawn from the Primary Cash Collateral Account to pay interest on the Class
G 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 Primary Cash Collateral Account is fully
replenished in respect of such Advance) and (ii) any other amount due
hereunder (whether fees, commissions, expenses or other amounts or, to the
extent permitted by law, installments of interest on Advances or any such other
amount) that is not paid when due (whether at stated maturity, by acceleration
or otherwise) from and including the due date thereof to but excluding the
date
such amount is paid in full, in each such case, at a fluctuating interest rate
per annum for each day equal to the Applicable Liquidity Rate (as defined below)
for such Advance or such other amount, as the case may be, as in effect for
such
day, but in no event at a rate per annum greater than the maximum rate permitted
by applicable law; provided,
however,
that,
if at any time the otherwise applicable interest rate as set forth in this
Section 3.07 shall exceed the maximum rate permitted by applicable law, then
any
subsequent reduction in such interest rate will not reduce the rate of interest
payable pursuant to this Section 3.07 below the maximum rate permitted by
applicable law until the total amount of interest accrued equals the amount
of
interest that would have accrued if such otherwise applicable interest rate
as
set forth in this Section 3.07 had at all times been in effect.
(b) 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 3.07. Each such Advance will be a
Base
Rate Advance for the period from the date of its borrowing to (but excluding)
the third Business Day following the 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 Primary 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 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 Lending Office) with any request
or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency shall make it unlawful or impossible for
the
Primary Liquidity Provider (or its Lending 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.
Section
3.11 Mitigation.
If a
condition arises or an event occurs which would, or would upon the giving of
notice, result in the payment of any additional costs or amounts pursuant to
Section 3.01, 3.02 or 3.03 or require the conversion of any Advance pursuant
to
Section 3.10, the Primary Liquidity Provider, promptly upon becoming aware
of
the same, shall notify the Borrower and shall use reasonable efforts (consistent
with applicable legal and regulatory restrictions) to mitigate the effects
of
such condition or event, including the designation of a different Lending Office
or furnishing of the proper certificates under any applicable tax laws, tax
treaties and conventions to the extent that such certificates are legally
available to the Primary Liquidity Provider; provided,
that
the Primary Liquidity Provider shall be under no obligation to take any step
that, in its good-faith opinion would (i) result in its incurring any material
additional costs in performing its obligations hereunder unless the Borrower
has
agreed to reimburse it therefor or (ii) be otherwise disadvantageous to the
Primary Liquidity Provider in the reasonable judgment of the Primary Liquidity
Provider.
CONDITIONS
PRECEDENT
Section
4.01 Conditions
Precedent to Effectiveness of Section 2.01.
Section
2.01 of this Agreement shall become effective on and as of the first date (the
“Effective
Date”)
on
which the following conditions precedent have been satisfied or
waived:
(a) The
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 and the Fee Letter applicable
to this Agreement duly executed on behalf of each of the parties thereto (other
than the Primary Liquidity Provider);
(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 or
before the Closing Date (other than this Agreement, the Fee Letter applicable
to
this Agreement and the Intercreditor Agreement);
(iv) A
copy of
the Prospectus Supplement and specimen copies of the Class G
Certificates;
(v) An
executed copy of each document, instrument, certificate and opinion delivered
on
the Closing Date pursuant to the Class G 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 Underwriter, 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 or prior
to 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 the transactions contemplated hereby or by the other Operative
Agreements, 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 Certificates and Class B Certificates by the
Underwriter 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
Advance requested.
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.
LIQUIDITY
EVENTS OF DEFAULT;
LIQUIDITY
PROVIDER REIMBURSEMENT DATE
Section
6.01 Liquidity
Events of Default.
If (a)
any Liquidity Event of Default has occurred and is continuing and (b) any
Equipment Note is a Non-Performing Equipment Note, 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 3.5(i) of the Intercreditor Agreement, (iii) all other outstanding
Advances to be automatically converted into Final Advances for purposes of
determining the Applicable Liquidity Rate for interest payable thereon, and
(iv)
subject to Sections 2.07 and 2.09 hereof, all Advances (including, without
limitation, any Provider Advance and Applied Provider Advance), any accrued
interest thereon and any other amounts outstanding hereunder to become
immediately due and payable to the Primary Liquidity Provider.
Section
6.02 Liquidity
Provider Reimbursement Date.
Upon the
occurrence of the Liquidity Provider Reimbursement Date, (i) the obligation
of
the Primary Liquidity Provider to make Advances hereunder shall automatically
expire, (ii) all outstanding Advances shall be automatically converted into
Final Advances, and (iii) subject to Sections 2.07 and 2.09 hereof, all Advances
(including, without limitation, any Provider Advance and Applied Provider
Advance), any accrued interest thereon and any other amounts outstanding
hereunder shall become immediately due and payable to the Primary Liquidity
Provider. On and after such date, no Advances shall be permitted
hereunder.
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 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 Trust Administration
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
|
|
Primary
Liquidity Provider:
|
Xxxxxx
Xxxxxxx Bank
0000
Xxxx Xxxx Xxxx. Xxxxx #0X
Xxxx
Xxxxxx Xxxx, Xxxx 00000
Attention:
Xxxxxxx Xxxxx, Chairman and Chief Credit Officer
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
|
|
|
with
a copy to:
|
Xxxxxx
Xxxxxxx
0000
Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Su Bai, Executive Director
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
|
|
|
and
|
||
|
Xxxxxx
Xxxxxxx
0000
Xxxxxx xx xxx Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxx Xxxxxxxxx, Managing Director
Telephone:
(000) 000-0000
Fax:
(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.
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 Note Purchase Agreement. 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 on, incurred by or
asserted against any Liquidity Indemnitee, in any way relating to, resulting
from, or arising out of or in connection with any action, suit or proceeding
by
any third party against such Liquidity Indemnitee and relating to this
Agreement, the Fee Letter applicable to this Agreement, the Intercreditor
Agreement or the Note Purchase Agreement; provided,
however,
that
the Borrower shall not be required to indemnify, protect, defend and hold
harmless any Liquidity Indemnitee in respect of any Expense of such Liquidity
Indemnitee to the extent such Expense is (i) attributable to the gross
negligence or willful misconduct of such Liquidity Indemnitee or any other
Liquidity Indemnitee; (ii) ordinary and usual operating overhead expense; (iii)
attributable to the failure by such Liquidity Indemnitee or any other Liquidity
Indemnitee to perform or observe any agreement, covenant or condition on its
part to be performed or observed in this Agreement, the Intercreditor Agreement,
the Fee Letter applicable to this Agreement or any other Operative Agreement
to
which it is a party; or (iv) a Tax. The indemnities contained in Section 8.1
of
the Note Purchase Agreement, 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 gross 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
or the Intercreditor 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. In no event, however, shall the Primary Liquidity
Provider be liable on any theory of liability for any special, indirect,
consequential or punitive damages (including, without limitation, any loss
of
profits, business or anticipated savings).
(b) Neither
the 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
gross 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 any waiver or consent
thereunder (whether or not the same shall become effective) or (iii) any action
or proceeding relating to any order, injunction, or other process or decree
restraining or seeking to restrain the 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
Primary Cash Collateral Account. In addition, the Borrower shall pay any and
all
recording, stamp and other similar taxes and fees payable or determined to
be
payable in connection with the execution, delivery, filing and recording of
this
Agreement, any other Operative Agreement and such other documents, and agrees
to
hold the 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 Severability.
Any
provision of this Agreement which is prohibited, unenforceable or not authorized
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition, unenforceability or non-authorization without invalidating
the remaining provisions hereof or affecting the validity, enforceability or
legality of such provision in any other jurisdiction.
Section
7.10 GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE
STATE OF NEW YORK.
Section
7.11 Submission
to Jurisdiction; Waiver of Jury Trial.
(a) Each
of the parties hereto hereby irrevocably and unconditionally:
(i) submits
for itself and its property in any legal action or proceeding relating to this
Agreement or any other Operative Agreement, or for recognition and enforcement
of any judgment in respect hereof or thereof, to the nonexclusive general
jurisdiction of the courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and the appellate
courts from any thereof;
(ii) consents
that any such action or proceeding may be brought in such courts, and waives
any
objection that it may now or hereafter have to the venue of any such action
or
proceeding in any such court or that such action or proceeding was brought
in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to each party hereto at its address
set
forth in Section 7.02 hereof, or at such other address of which the 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.
Section
7.12 Execution
in Counterparts.
This
Agreement may be executed in any number of counterparts and by different parties
hereto on separate counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section
7.13 Entirety.
This
Agreement, the Intercreditor Agreement and the other Operative Agreements to
which the 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
7.14 Headings.
Section
headings in this Agreement are included herein for convenience of reference
only
and shall not constitute a part of this Agreement for any other
purpose.
Section
7.15 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.
[signature
pages follow]
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 Trust, as Borrower |
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By:
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| Name: | ||
| Title: | ||
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XXXXXX
XXXXXXX BANK,
as Primary Liquidity Provider |
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By:
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| Name: | ||
| Title: | ||
Annex
I to
INTEREST
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
“Borrower”),
hereby certifies to XXXXXX XXXXXXX BANK (the “Primary
Liquidity Provider”),
with
reference to the Revolving Credit Agreement (2006-1G) dated as of June 9, 2006,
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)
below, for the payment of interest on the Class G Certificates which was payable
on ____________, ____ (the “Distribution
Date”)
in
accordance with the terms and provisions of the Class G Trust Agreement and
the
Class G 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 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
Certificates, or principal of, or interest or Premium on, the Class B
Certificates, (iii) was computed in accordance with the provisions of the Class
G Certificates, the
Liquidity Agreement,
the
Class G 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, and (v) has not been and is not the
subject of a prior or contemporaneous Notice of Borrowing.
(4) Upon
receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the
Borrower will apply the same in accordance with the terms of Section 3.5(b)
of the Intercreditor Agreement, (b) no portion of such amount shall be applied
by the Borrower for any other purpose and (c) no portion of such amount until
so
applied shall be commingled with other funds held by the Borrower.
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, the
making of the Interest Advance as requested by this Notice of Borrowing shall
automatically reduce, subject to reinstatement in accordance with the terms
of
the Liquidity Agreement, the Maximum Available Commitment by an amount equal
to
the amount of the Interest Advance requested to be made hereby as set forth
in
clause (i) of paragraph (3) of this Notice of
Borrowing and such reduction shall automatically result in corresponding reductions in the amounts available to be borrowed pursuant to a subsequent Advance.
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 agent and trustee for the Class G Trust, as Borrower |
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By:
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| 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
NON-EXTENSION
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
“Borrower”),
hereby certifies to XXXXXX XXXXXXX BANK (the “Primary
Liquidity Provider”),
with
reference to the Revolving Credit Agreement (2006-1G) dated as of June 9, 2006,
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 Primary Cash Collateral Account in accordance with Section 3.5(d)
of the Intercreditor Agreement, which Advance is requested to be made on
__________, ____. The Non-Extension Advance should be transferred to [name
of
bank/wire instructions/ABA number] in favor of account number [ __ ], reference
[ __ ].
(3) The
amount of the Non-Extension Advance requested hereby (i) is $_______________.__,
which equals the Maximum Available Commitment on the date hereof and is to
be
applied in respect of the funding of the Primary Cash Collateral Account in
accordance with Sections 3.5(d) and 3.5(f) 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 Certificates, or principal of, or interest or Premium
on, the Class B Certificates, (iii) was computed in accordance with the
provisions of the Class G Certificates, the Liquidity Agreement, the Class
G
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 Primary Cash Collateral Account and
apply the same in accordance with the terms of Sections 3.5(d) and 3.5(f) of
the
Intercreditor Agreement, (b) no portion of such amount shall be applied by
the
Borrower for any other purpose and (c) no portion of such amount until so
applied shall be commingled with other funds held by the Borrower.
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A)
the
making of the Non-Extension Advance as requested by this Notice of Borrowing
shall automatically and irrevocably terminate the obligation of the 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 agent and trustee for the Class G Trust, as Borrower |
||
| |
|
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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
DOWNGRADE
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
“Borrower”),
hereby certifies to XXXXXX XXXXXXX BANK (the “Primary
Liquidity Provider”),
with
reference to the Revolving Credit Agreement (2006-1G) dated as of June 9, 2006,
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
Primary Cash Collateral Account in accordance with Section 3.5(c) of the
Intercreditor Agreement by reason of the occurrence of a Downgrade Event, which
Advance is requested to be made on __________, ____. The Downgrade Advance
should be transferred to [name of bank/wire instructions/ABA number] in favor
of
account number [ __ ], reference [ __ ].
(3) The
amount of the Downgrade Advance requested hereby (i) is $_______________.__,
which equals the Maximum Available Commitment on the date hereof and is to
be
applied in respect of the funding of the Primary Cash Collateral Account in
accordance with Sections 3.5(c) and 3.5(f) 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 Certificates, or principal of, or interest or Premium
on, the Class B Certificates, (iii) was computed in accordance with the
provisions of the Class G Certificates, the Liquidity Agreement, the Class
G
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 Primary Cash Collateral Account and
apply the same in accordance with the terms of Sections 3.5(c) and 3.5(f) of
the
Intercreditor Agreement, (b) no portion of such amount shall be applied by
the
Borrower for any other purpose and (c) no portion of such amount until so
applied shall be commingled with other funds held by the Borrower.
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A)
the
making of the Downgrade Advance as requested by this Notice of Borrowing shall
automatically and irrevocably terminate the obligation of the 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.
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 agent and trustee for the Class G Trust, as Borrower |
||
| |
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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 XXXXXX XXXXXXX BANK (the “Primary
Liquidity Provider”),
with
reference to the Revolving Credit Agreement (2006-1G) dated as of June 9, 2006,
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
Primary Cash Collateral Account in accordance with Section 3.5(i) of the
Intercreditor Agreement by reason of the receipt by the Borrower of a
Termination Notice from the 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 Primary Cash Collateral Account in accordance
with Sections 3.5(f) and 3.5(i) of the Intercreditor Agreement, (ii) does not
include any amount with respect to the payment of principal of, or Premium
on,
the Class G Certificates, or principal of, or interest or Premium on, the Class
B Certificates, (iii) was computed in accordance with the provisions of the
Class G Certificates, the Liquidity Agreement, the Class G 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 Primary Cash Collateral Account and
apply the same in accordance with the terms of Sections 3.5(f) and 3.5(i) of
the
Intercreditor Agreement, (b) no portion of such amount shall be applied by
the
Borrower for any other purpose and (c) no portion of such amount until so
applied shall be commingled with other funds held by the Borrower.
(5)
The
Borrower hereby requests that the Advance requested hereby be a Base Rate
Advance [and that such Base Rate Advance be converted into a LIBOR Advance
on
the third Business Day following your receipt of this notice.]1
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 agent and trustee for the Class G Trust, as Borrower |
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By:
|
||
| Name: | ||
| Title: | ||
___________________
1 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 June 9, 2006, between Wilmington Trust Company,
as
Subordination Agent, as agent and trustee for the Continental Airlines Pass
Through Trust, 2006-1G, as Borrower, and Xxxxxx Xxxxxxx Bank (the “Liquidity
Agreement”)
Ladies
and Gentlemen:
You
are
hereby notified that, pursuant to Section 6.01 of the Liquidity Agreement,
by
reason of an Equipment Note being a Non-Performing Equipment Note and the
occurrence and continuance of a Liquidity Event of Default (each as defined
therein), we are giving this notice to you in order to cause (i) our obligations
to make Advances (as defined therein) under such Liquidity Agreement to
terminate on the fifth Business Day after the date on which you receive this
notice and (ii) you to request a Final Advance under the Liquidity Agreement
pursuant to Section 3.5(i) of the Intercreditor Agreement (as defined in the
Liquidity Agreement) as a consequence of your receipt of this
notice.
THIS
NOTICE IS THE “NOTICE OF TERMINATION” PROVIDED FOR UNDER THE LIQUIDITY
AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY AGREEMENT WILL
TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU RECEIVE THIS
NOTICE.
Very
truly
yours,
|
XXXXXX
XXXXXXX BANK,
as Primary Liquidity Provider |
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By:
|
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| Name: | ||
| Title: | ||
cc:
Wilmington Trust Company,
as
Class
G Trustee
Annex
VI to
Revolving
Credit Agreement
NOTICE
OF
REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving
Credit Agreement, dated as of June 9, 2006, between Wilmington Trust Company,
as
Subordination Agent, as agent and trustee for the Continental Airlines Pass
Through Trust, 2006-1G, as Borrower, and Xxxxxx Xxxxxxx Bank (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 agent and trustee for the Class G Trust, as Borrower |
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By:
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| Name: | ||
| Title: | ||
VI-2
