REVOLVING CREDIT AGREEMENT (2005-ERJ1) Dated as of September 22, 2005 between WILMINGTON TRUST COMPANY, as Subordination Agent, as agent and trustee for the Continental Airlines Pass Through Trust 2005-ERJ1, as Borrower, and LANDESBANK...
EXECUTION
VERSION
_________________________________________________________________
(2005-ERJ1)
Dated
as
of September 22, 2005
between
WILMINGTON
TRUST COMPANY,
as
Subordination Agent,
as
agent
and trustee for the
Continental
Airlines Pass Through Trust 2005-ERJ1,
as
Borrower,
and
LANDESBANK
BADEN-WÜRTTEMBERG,
as
Liquidity Provider
_________________________________________________________________
Continental
Airlines Pass Through Trust 2005-ERJ1
Continental
Airlines 9.798% Pass Through Certificates,
Series
2005-ERJ1
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REVOLVING
CREDIT AGREEMENT (2005-ERJ1)
This
REVOLVING CREDIT AGREEMENT (2005-ERJ1), dated as of September 22, 2005, is
made by and between WILMINGTON TRUST COMPANY, a Delaware corporation, not in
its
individual capacity but solely as Subordination Agent under the Intercreditor
Agreement (each as defined below), as agent and trustee for the Trust (as
defined below) (the "Borrower"),
and
LANDESBANK BADEN-WÜRTTEMBERG, a bank established in Germany as a public law
institution with legal capacity (Rechtsf’hige
Anstalt des Öffentlichen Rechts)
(the
"Liquidity
Provider").
W
I T
N E S S E T H:
WHEREAS,
pursuant to the Trust Agreement (such term and all other capitalized terms
used
in these recitals having the meanings set forth or referred to in Section 1.01),
the Trust is issuing the Certificates; and
WHEREAS,
the Borrower, in order to support the timely payment of a portion of the
interest on the Certificates in accordance with their terms, has requested
the
Liquidity Provider to enter into this Agreement, providing in part for the
Borrower to request in specified circumstances that Advances be made
hereunder.
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 Special Termination Advance, a Provider
Advance or an Applied Provider Advance, as the case may be.
"Agreement"
means
this Revolving Credit Agreement (2005-ERJ1), dated as of September 22,
2005, between the Borrower and the Liquidity Provider, as the same may be
amended, supplemented or otherwise modified from time to time in accordance
with
its terms.
"Applicable
Liquidity Rate"
has the
meaning assigned to such term in Section 3.07(f).
"Applicable
Margin"
means
(i) with respect to any Unpaid Advance (other than an Unapplied Special
Termination Advance) or Applied Provider Advance, 2.5% per annum, and
(ii) with respect to any Unapplied Provider Advance or any Unapplied
Special Termination Advance, the margin per annum specified in the Fee
Letter.
"Applied
Downgrade Advance"
has the
meaning assigned to such term in Section 2.06(a).
"Applied
Early Termination Advance"
has the
meaning assigned to such term in Section 2.06(a).
"Applied
Provider Advance"
has the
meaning assigned to such term in Section 2.06(a).
"Applied
Special Termination Advance"
has the
meaning assigned to such term in Section 2.05.
"Base
Rate"
means,
on any day, a fluctuating interest rate per annum in effect from time to time,
which rate per annum shall at all times be equal to (a) the weighted average
of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day
(or,
if such day is not a Business Day, for the next preceding Business Day) by
the
Federal Reserve Bank of New York, or if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day for
such
transactions received by the Liquidity Provider from three Federal funds brokers
of recognized standing selected by it, plus (b) one-quarter of one percent
(1/4
of 1%).
"Base
Rate Advance"
means
an Advance that bears interest at a rate based upon the Base Rate.
"Borrower"
has the
meaning assigned to such term in the recital of parties to this
Agreement.
"Borrowing"
means
the making of Advances requested by delivery of a Notice of
Borrowing.
"Business
Day"
means
any day other than a Saturday, a Sunday or a day on which commercial banks
are
required or authorized to close in Houston, Texas, New York, New York or, so
long as any Certificate is outstanding, the city and state in which the Trustee,
the Borrower or any Loan Trustee maintains its Corporate Trust Office or
receives or disburses funds, and, if the applicable Business Day relates to
any
Advance or other amount bearing interest based on LIBOR, on which dealings
are
carried on in the London interbank market.
"Deposit
Agreement"
means
the Deposit Agreement dated as of the date hereof between ▇▇▇▇▇ Fargo Bank
Northwest, National Association, as Escrow Agent, and Citibank, N.A., as
Depositary, pertaining to the Certificates, as the same may be amended, modified
or supplemented from time to time in accordance with the terms
thereof.
"Depositary"
means
Citibank, N.A.
"Deposits"
has the
meaning assigned to such term in the Deposit Agreement.
"Dollars"
or
"$"
means
United States dollars.
"Downgrade
Advance"
means
an Advance made pursuant to Section 2.02(d).
"Downgrade
Event"
means a
downgrading of the 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 unless each Rating Agency shall
have confirmed in writing on or prior to the date of such downgrading that
such
downgrading will not result in the downgrading, withdrawal or suspension of
the
ratings of the Certificates.
"Early
Termination Advance"
means
an advance made pursuant to Section 2.02(b).
"Early
Termination Date"
means
the date specified in an Early Termination Notice delivered by the Liquidity
Provider to the Borrower in accordance with Section 2.10, which date shall
not
be earlier than the 25th
day
following the receipt by the Borrower of such Early Termination
Notice.
"Early
Termination Notice"
has the
meaning assigned to such term in Section 2.10.
"Early
Termination Notice Period"
means
the period from the 40th day to and including the 25th day prior to the
anniversary of the Closing Date in each calendar year.
"Effective
Date"
has the
meaning assigned to such term in Section 4.01. The delivery of the certificate
of the Liquidity Provider contemplated by Section 4.01(e) shall be conclusive
evidence that the Effective Date has occurred.
"Excluded
Taxes"
means
(i) Taxes imposed on, based on or measured by the income of, or franchise Taxes
imposed on, the Liquidity Provider or its Lending Office by the jurisdiction
where such Liquidity Provider's principal office or such Lending Office is
located or any other taxing jurisdiction in which such Tax is imposed as a
result of the Liquidity Provider being, or having been, organized in, or
conducting, or having conducted, any activities unrelated to the transactions
contemplated by the Operative Agreements in, such jurisdiction or (ii)
withholding taxes, whether or not indemnified under Section 3.03.
"Excluded
Withholding Taxes"
means
(i) withholding Taxes imposed by the United States except (a) if such Liquidity
Provider is, on the date hereof (or, in the case of any successor Liquidity
Provider, on the date it acquires its interest herein), a "resident" of an
Applicable Treaty jurisdiction entitled to claim the benefits of an Applicable
Treaty in respect of amounts payable hereunder, any such withholding Tax to
the
extent imposed as a result of a change in applicable law or treaty (other than
any addition of, or change in, any "anti-treaty shopping", "limitation on
benefits", or similar provision in any treaty or other applicable law
restricting the availability of treaty benefits (including, without limitation
any provision similar to the Protocol Amending the Convention Between the United
States of America and the Kingdom of the Netherlands for the Avoidance of Double
Taxation and the Prevention of Fiscal
Evasion
with respect to Taxes on Income, signed at Washington on October 13, 1993))
after the date hereof (or, in the case of any successor Liquidity Provider,
after the date it acquired its interest herein) and (b) any such withholding
Tax
to the extent the amount of such withholding Tax imposed on such successor
Liquidity Provider does not exceed the amount of such withholding Tax that,
in
the absence of the transfer to such successor Liquidity Provider, would have
been an Indemnified Tax imposed on payments to the predecessor Liquidity
Provider pursuant to applicable law in effect on the date such successor
Liquidity Provider acquired its interest herein, (ii) any Tax imposed or to
the
extent increased as a result of the Liquidity Provider failing to deliver to
the
Borrower any certificate or document (the delivery of which certificate or
document in the good faith judgment of the Liquidity Provider will not expose
the Liquidity Provider to any adverse consequence and which the Liquidity
Provider is legally entitled to provide) which is reasonably requested by the
Borrower to establish that payments under this Agreement are exempt from (or
entitled to a reduced rate of) withholding Tax, and (iii) any Tax imposed by
a
jurisdiction as a result of the Liquidity Provider being, or having been,
organized in, or maintaining, or having maintained, its principal office or
Lending Office in, or conducting, or having conducted, any activities unrelated
to the transactions contemplated by the Operative Agreements in, such
jurisdiction. For purposes of this definition, "Applicable
Treaty"
means
an income tax treaty between the United States and any of Australia, Austria,
Canada, France, Germany, Ireland, Japan, Luxembourg, The Netherlands, Sweden,
Switzerland or the United Kingdom.
"Expenses"
means
liabilities, obligations, damages, settlements, penalties, claims, actions,
suits, costs, expenses, and disbursements (including, without limitation,
reasonable fees and disbursements of legal counsel and costs of investigation),
provided that Expenses shall not include any Taxes other than sales, use and
V.A.T. taxes imposed on fees and expenses payable pursuant to Section
7.07.
"Expiry
Date"
means
October 16, 2022.
"Final
Advance"
means
an Advance made pursuant to Section 2.02(e).
"Indemnified
Tax"
has the
meaning assigned to such term in Section 3.03.
"Intercreditor
Agreement"
means
the Intercreditor Agreement dated as of the date hereof, among the Trustee,
the
Liquidity Provider 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 (and including) the third London/Stuttgart Business Day following
either (A) the Liquidity Provider's receipt of the Notice of Borrowing for
such
LIBOR Advance or (B) the date on which funds are withdrawn
from
the
Cash Collateral Account for the purpose of paying interest on the Certificates
as contemplated by Section 2.06(a) hereof and, in either case, ending on
(but excluding) the next Regular Distribution Date; and
(i) each
subsequent
period commencing on (and including) the last day of the immediately
preceding
Interest Period and ending on (but excluding) 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 London/Stuttgart
Business Day following the Liquidity Provider's receipt of the Notice of
Borrowing for such Final Advance (in the case of clause (x) above) or the
Regular Distribution Date following such conversion (in the case of clause
(y)
above); provided further
that if
the last day of any Interest Period shall not be a Business Day, such Interest
Period will end on the next succeeding Business Day.
"Lending
Office"
means
the lending office of the Liquidity Provider presently located at Stuttgart,
Germany, or such other lending office as the Liquidity Provider from time to
time shall notify the Borrower as its Lending Office hereunder; provided that
the Liquidity Provider shall not change its Lending Office to another lending
office outside Germany or the United States of America except in accordance
with
Section 3.11 hereof.
"LIBOR"
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 London/Stuttgart Business Days before the first
day
of such Interest Period, as the rate for dollar deposits with a maturity
comparable to such Interest Period; or
(ii)
if
the
rate calculated pursuant to clause (i) above is not available, the average
(rounded upwards, if necessary, to the next 1/16 of 1%) of the rates per annum
at which deposits in dollars are offered for the relevant Interest Period by
three banks of recognized standing selected by the Liquidity Provider in the
London interbank market at approximately 11:00 a.m. (London time) two
London/Stuttgart 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; or
(iii)
if
clause
(ii) above is applicable but fewer than three banks in the London interbank
market provide such rate, the average (rounded upwards, if necessary, to the
next 1/16 of 1%) of the rates per annum quoted by three banks in New York City
of recognized standing selected by the Liquidity Provider at approximately
11:00
a.m. (New York City time) two
Business
Days before the first day of such Interest Period for loans in Dollars to
leading European banks 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.
"LIBOR
Advance"
means
an Advance bearing interest at a rate based upon LIBOR.
"Liquidity
Event of Default"
means
the occurrence of either (a) the Acceleration of all of the Equipment Notes
(provided
that,
with respect to the period prior to the Delivery Period Expiry Date, such
Equipment Notes have an aggregate outstanding principal balance in excess of
$195 million) or (b) a Continental Bankruptcy Event.
"Liquidity
Indemnitee"
means
(i) the Liquidity Provider, (ii) the directors, officers, employees and
agents of the Liquidity Provider and (iii) the successors and permitted
assigns of the persons described in clauses (i) and (ii).
"Liquidity
Provider"
has the
meaning assigned to such term in the recital of parties to this
Agreement.
"London/Stuttgart
Business Day"
means
any day on which commercial banks are open for general business in London,
England and Stuttgart, Germany.
"Maximum
Available Commitment"
means,
subject to the proviso contained in the third sentence of Section 2.02(a),
at
any time of determination, (a) the Maximum Commitment at such time less (b)
the
aggregate amount of each Interest Advance outstanding at such time; provided
that
following a Provider Advance, a Special Termination Advance or a Final Advance,
the Maximum Available Commitment shall be zero.
"Maximum
Commitment"
means
initially $45,709,139.70, as the same may be reduced from time to time in
accordance with Section 2.04(a).
"Notice
of Borrowing"
has the
meaning assigned to such term in Section 2.02(g).
"Notice
of Replacement Subordination Agent"
has the
meaning assigned to such term in Section 3.08.
"Performing
Note Deficiency"
means
any time that less than 65% of the then aggregate outstanding principal amount
of all Equipment Notes are Performing Equipment Notes.
"Prospectus
Supplement"
means
the final Prospectus Supplement dated September 14, 2005 relating to the
Certificates, as such Prospectus Supplement may be amended or
supplemented.
"Provider
Advance"
means a
Downgrade Advance or an Early Termination 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).
"Special
Termination Advance"
means
an Advance made pursuant to Section 2.02(f).
"Special
Termination Notice"
means
the Notice of Special Termination substantially in the form of Annex IX to
this
Agreement.
"Termination
Date"
means
the
earliest to occur of the following: (i) the Expiry Date; (ii) the date on which
the Borrower delivers to the Liquidity Provider a certificate, signed by a
Responsible Officer of the Borrower, certifying that all of the Certificates
have been paid in full (or provision has been made for such payment in
accordance with the Intercreditor Agreement and the Trust Agreement) or are
otherwise no longer entitled to the benefits of this Agreement; (iii) the date
on which the Borrower delivers to the Liquidity Provider a certificate, signed
by a Responsible Officer of the Borrower, certifying that a Replacement
Liquidity Facility has been substituted for this Agreement in full pursuant
to
Section 3.6(e) of the Intercreditor Agreement; (iv) the fifth Business Day
following the receipt by the Borrower of a Termination Notice or Special
Termination Notice from the Liquidity Provider pursuant to Section 6.01
hereof;
and
(v)
the
date on
which no Advance is, or may (including by reason of reinstatement as herein
provided) become available for a Borrowing hereunder.
"Termination
Notice"
means
the Notice of Termination substantially in the form of Annex VI to this
Agreement.
"Transferee"
has the
meaning assigned to such term in Section 7.08(b).
"Unapplied
Early Termination Advance"
means
any portion of an Early Termination Advance which is not an Applied Early
Termination Advance.
"Unapplied
Provider Advance"
means
any portion of any Provider Advance that is not an Applied Provider
Advance.
"Unapplied
Special Termination Advance"
means
any portion of a Special Termination Advance that is not an Applied Special
Termination Advance.
"Unpaid
Advance"
has the
meaning assigned to such term in Section 2.05.
(b)
For
the
purposes of this Agreement, the following terms shall have the respective
meanings assigned to such terms in the Intercreditor Agreement:
"Acceleration",
"Cash
Collateral Account",
"Certificate",
"Certificateholder",
"Closing
Date",
"Continental",
"Continental
Bankruptcy Event",
"Controlling
Party",
"Corporate
Trust Office",
"Delivery
Period Expiry Date",
"Distribution
Date",
"Downgraded
Facility",
"Early
Terminated Facility",
"Equipment
Notes",
"Fee
Letter",
"Final
Legal Distribution Date",
"Financing
Agreement",
"Indenture",
"Investment
Earnings",
"Liquidity
Obligations",
"Loan
Trustee",
"▇▇▇▇▇'▇",
"Note
Purchase Agreement",
"Operative
Agreements",
"Participation
Agreement",
"Performing
Equipment Note",
"Person",
"Pool
Balance",
"Rating
Agencies",
"Ratings
Confirmation",
"Regular
Distribution Dates",
"Replacement
Liquidity Facility",
"Required
Amount",
"Responsible
Officer",
"Scheduled
Payment",
"Special
Payment",
"Standard
& Poor's",
"Stated
Interest Rate",
"Subordination
Agent",
"Taxes",
"Threshold
Rating",
"Trust",
"Trust
Agreement",
"Trustee",
"Underwriter",
"Underwriting
Agreement"
and
"Written
Notice".
Section
1.02. Interpretation.
For
purposes of this Agreement, except as expressly provided or unless the context
otherwise requires:
(a)
the
terms
used herein that are defined in this Article have the meanings assigned to
them
in this Article, and include the plural as well as the singular;
(b)
all
references in this Agreement to designated "Articles", "Sections" and other
subdivisions are to the designated Articles, Sections and other subdivisions
of
this Agreement;
(c)
the
words
"herein", "hereof" and "hereunder" and other words of similar import refer
to
this Agreement as a whole and not to any particular Article, Section or other
subdivision; and
(d)
the
term
"including" shall mean "including without limitation".
AMOUNT
AND TERMS OF THE COMMITMENT
Section
2.01. The
Advances.
The
Liquidity Provider hereby irrevocably agrees, on the terms and conditions
hereinafter set forth, to make Advances to the Borrower from time to time on
any
Business Day during the period from the Effective Date until 1:00 p.m. (New
York
City time) on the Expiry Date (unless the obligations of the Liquidity Provider
shall be earlier terminated in accordance with the terms of Section 2.04(b))
in
an aggregate amount at any time outstanding not to exceed the Maximum
Commitment.
Section
2.02. Making
the Advances.
(a)
Interest Advances shall be made in one or more Borrowings by delivery to the
Liquidity Provider of one or more written and completed Notices of Borrowing
in
substantially the form of Annex I attached hereto, signed by a Responsible
Officer of the Borrower, in an amount not exceeding the Maximum Available
Commitment at such time and shall be used solely for the payment when due of
interest with respect to the Certificates at the Stated Interest Rate therefor
in accordance with Sections 3.6(a) and 3.6(b) of the Intercreditor Agreement.
Each Interest Advance made hereunder shall automatically reduce the Maximum
Available Commitment and the amount available to be borrowed hereunder by
subsequent Advances by the amount of such Interest Advance (subject to
reinstatement as provided in the next sentence). Upon repayment to the Liquidity
Provider in full or in part of the amount of any Interest
Advance
made pursuant to this Section 2.02(a), together with accrued interest thereon
(as provided herein), the Maximum Available Commitment shall be reinstated
by an
amount equal to the amount of such Interest Advance so repaid but not to exceed
the Maximum Commitment; provided,
however,
that
the Maximum Available Commitment shall not be so reinstated at any time if
(x)
both a Performing Note Deficiency exists and a Liquidity Event of Default shall
have occurred and be continuing, or (y) a Final Advance, a Provider Advance
or a Special Termination Advance has been made or an Advance has been converted
into a Final Advance.
(b)
Subject
to Section 2.10, an Early Termination Advance shall be made in a single
Borrowing if the Liquidity Provider has delivered an Early Termination Notice
in
accordance with Section 3.6(d) of the Intercreditor Agreement (unless a
Replacement Liquidity Facility to replace this Agreement shall have been
delivered to the Borrower as contemplated by said Section 3.6(d) within the
time
period specified in such Section 3.6(d)) by delivery to the Liquidity Provider
of a written and completed Notice of Borrowing in substantially the form of
Annex II attached hereto, signed by a Responsible Officer of the Borrower,
in an
amount equal to the Maximum Available Commitment at such time, and shall be
used
to fund the Cash Collateral Account in accordance with Sections 3.6(d) and
3.6(f) of the Intercreditor Agreement.
(c)
[reserved]
(d)
A
Downgrade Advance shall be made in a single Borrowing upon the occurrence of
a
Downgrade Event (as provided for in Section 3.6(c) of the Intercreditor
Agreement) unless a Replacement Liquidity Facility to replace this Agreement
shall have been previously delivered to the Borrower in accordance with such
Section 3.6(c), by delivery to the Liquidity Provider of a written and
completed Notice of Borrowing in substantially the form of Annex IV attached
hereto, signed by a Responsible Officer of the Borrower, in an amount equal
to
the Maximum Available Commitment at such time, and shall be used to fund the
Cash Collateral Account in accordance with Sections 3.6(c) and 3.6(f) of the
Intercreditor Agreement.
(e)
A
Final
Advance shall be made in a single Borrowing upon the receipt by the Borrower
of
a Termination Notice from the Liquidity Provider pursuant to Section 6.01 hereof
by delivery to the Liquidity Provider of a written and completed Notice of
Borrowing in substantially the form of Annex V 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 Cash Collateral Account
in accordance with Sections 3.6(f) and 3.6(i) of the Intercreditor
Agreement.
(f)
A
Special
Termination Advance shall be made in a single Borrowing upon the receipt by
the
Borrower of a Special Termination Notice from the Liquidity Provider pursuant
to
Section 6.02, by delivery to the Liquidity Provider of a written and completed
Notice of Borrowing in substantially the form of Annex VIII, 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 Cash Collateral Account
in accordance with Sections 3.6(f) and 3.6(k) of the Intercreditor
Agreement.
(g)
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(d), 2.02(e)
or
2.02(f)
as the case may be, given by the Borrower to the Liquidity Provider. Each Notice
of Borrowing shall be effective upon delivery of a copy thereof to the Liquidity
Provider's New York branch (with a copy to the Lending Office) at the address
specified in Section 7.02. If a Notice of Borrowing is delivered by the Borrower
in respect of any Borrowing no later than 1:00 p.m. (New York City time) on
a
Business Day, upon satisfaction of the conditions precedent set forth in Section
4.02 with respect to a requested Borrowing, the Liquidity Provider shall make
available to the Borrower, in accordance with its payment instructions, the
amount of such Borrowing in U.S. dollars and in immediately available funds,
before 4:00 p.m. (New York City time) on such Business Day or on such later
Business Day specified in such Notice of Borrowing. If a Notice of Borrowing
is
delivered by the Borrower in respect of any Borrowing on a day that is not
a
Business Day or after 1:00 p.m. (New York City time) on a Business Day, upon
satisfaction of the conditions precedent set forth in Section 4.02 with respect
to a requested Borrowing, the Liquidity Provider shall make available to the
Borrower, in accordance with its payment instructions, the amount of such
Borrowing in U.S. dollars and in immediately available funds, before 1:00 p.m.
(New York City time) on the first Business Day next following the day of receipt
of such Notice of Borrowing or on such later Business Day specified by the
Borrower in such Notice of Borrowing. Payments of proceeds of a Borrowing shall
be made by wire transfer of immediately available funds to the Borrower in
accordance with such wire transfer instructions as the Borrower shall furnish
from time to time to the Liquidity Provider for such purpose. Each Notice of
Borrowing shall be irrevocable and binding on the Borrower.
(h)
Upon
the
making of any Advance requested pursuant to a Notice of Borrowing in accordance
with the Borrower's payment instructions, the Liquidity Provider shall be fully
discharged of its obligation hereunder with respect to such Notice of Borrowing,
and the Liquidity Provider shall not thereafter be obligated to make any further
Advances hereunder in respect of such Notice of Borrowing to the Borrower or
to
any other Person. If the Liquidity Provider makes an Advance requested pursuant
to a Notice of Borrowing before 1:00 p.m. (New York City time) on the second
Business Day after the date of payment specified in Section 2.02(g), the
Liquidity Provider shall have fully discharged its obligations hereunder with
respect to such Advance and an event of default shall not have occurred
hereunder. Following the making of any Advance pursuant to Section 2.02(b),
2.02(d), 2.02(e) or 2.02(f) hereof to fund the Cash Collateral Account, the
Liquidity Provider shall have no interest in or rights to the Cash Collateral
Account, the funds constituting such Advance or any other amounts from time
to
time on deposit in the Cash Collateral Account; provided
that the
foregoing shall not affect or impair the obligations of the Subordination Agent
to make the distributions contemplated by Section 3.6(e) or 3.6(f) of the
Intercreditor Agreement and provided further,
that
the foregoing shall not affect or impair the rights of the Liquidity Provider
to
provide written instructions with respect to the investment and reinvestment
of
amounts in the Cash Collateral Account to the extent provided in Section 2.2(b)
of the Intercreditor Agreement. By paying to the Borrower proceeds of Advances
requested by the Borrower in accordance with the provisions of this Agreement,
the Liquidity Provider makes no representation as to, and assumes no
responsibility for, the correctness or sufficiency for any purpose of the amount
of the Advances so made and requested.
Section
2.03. Fees.
The
Borrower agrees to pay to the Liquidity Provider the fees set forth in the
Fee
Letter applicable to this Agreement.
Section
2.04. Reductions
or Termination of the Maximum Commitment.
(a)
Automatic
Reduction.
Promptly following each date on which the Required Amount is reduced as a result
of a reduction (or deemed reduction) in the Pool Balance of the Certificates
or
otherwise, the Maximum Commitment shall automatically be reduced to an amount
equal to such reduced Required Amount (as calculated by the Borrower);
provided
that on
the first Regular Distribution Date, the Maximum Commitment shall automatically
be reduced to the then Required Amount. The Borrower shall give notice of any
such automatic reduction of the Maximum Commitment to the Liquidity Provider
within two Business Days thereof. The failure by the Borrower to furnish any
such notice shall not affect such automatic reduction of the Maximum
Commitment.
(b)
Termination.
The
obligation of the Liquidity Provider to make further Advances hereunder shall
automatically and irrevocably terminate, and the Borrower shall not be entitled
to request any further Borrowing hereunder upon:
(i) the
making of any Provider Advance;
(ii) the
making of a Special Termination Advance;
(iii) the
making of, or conversion to, a Final Advance; or
(iv) the
occurrence of the Termination Date.
Section
2.05. Repayments
of Interest Advances, the Special Termination Advance or the Final
Advance.
Subject
to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby agrees, without
notice of an Advance or demand for repayment from the Liquidity Provider (which
notice and demand are hereby waived by the Borrower), to pay, or to cause to
be
paid, to the Liquidity Provider on each date on which the Liquidity Provider
shall make an Interest Advance, the Special Termination Advance or the Final
Advance, an amount equal to (a) the amount of such Advance (any such
Advance, until repaid, is referred to herein as an "Unpaid
Advance"),
plus
(b) interest on the amount of each such Unpaid Advance as provided in Section
3.07 hereof; provided
that if
(i) the Liquidity Provider shall make a Provider Advance at any time after
making one or more Interest Advances which shall not have been repaid in
accordance with this Section 2.05 or (ii) this Liquidity Facility shall become
a
Downgraded Facility or an Early Terminated 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 Early Termination Advance, as the case may be, for all purposes of
this
Agreement (including, without limitation, for the purpose of determining when
such Interest Advance is required to be repaid to the Liquidity Provider in
accordance with Section 2.06 and for the purposes of Section 2.06(b));
provided,
further,
that
amounts in respect of a Special Termination Advance withdrawn from the Cash
Collateral Account for the purpose of paying interest on the Certificates in
accordance with 3.6(f) of the Intercreditor Agreement (the amount of such
withdrawal being an "Applied
Special Termination Advance")
shall
thereafter be treated as an Interest Advance under this Agreement for the
purposes of determining the Applicable Liquidity Rate for interest payable
thereon; and provided,
further,
that
if,
following the making of a Special Termination Advance, the Liquidity Provider
delivers a Termination Notice to the Borrower pursuant to Section 6.01 hereof,
such Special Termination Advance shall thereafter be treated as a Final Advance
under this Agreement for purposes of determining the Applicable Liquidity Rate
for interest payable thereon and the obligation of repayment thereof. The
Borrower and the Liquidity Provider agree that the repayment in full of each
Interest Advance, the Special Termination Advance and Final Advance on the
date
such Advance is made is intended to be a contemporaneous exchange for new value
given to the Borrower by the Liquidity Provider.
Section
2.06. Repayments
of Provider Advances.
(a)
Amounts advanced hereunder in respect of a Provider Advance shall be deposited
in the Cash Collateral Account and invested and withdrawn from the Cash
Collateral Account as set forth in Sections 3.6(c), 3.6(d), 3.6(e) and 3.6(f)
of
the Intercreditor Agreement. Subject to Sections 2.07 and 2.09, the Borrower
agrees to pay to the Liquidity Provider, on each Regular Distribution Date,
commencing on the first Regular Distribution Date after the making of a Provider
Advance, interest on the principal amount of any such Provider Advance as
provided in Section 3.07 hereof; provided,
however,
that
amounts in respect of a Provider Advance withdrawn from the Cash Collateral
Account for the purpose of paying interest on the Certificates in accordance
with Section 3.6(f) of the Intercreditor Agreement (the amount of any such
withdrawal being (x) in the case of a Downgrade Advance, an "Applied
Downgrade Advance"
and (y)
in the case of an Early Termination Advance, an "Applied
Early Termination Advance"
and,
together with an Applied Downgrade Advance, an "Applied
Provider Advance")
shall
thereafter (subject to Section 2.06(b)) be treated as an Interest Advance under
this Agreement for purposes of determining the Applicable Liquidity Rate for
interest payable thereon; provided further,
however,
that
if, following the making of a Provider Advance, the Liquidity Provider delivers
a Termination Notice to the Borrower pursuant to Section 6.01 hereof, such
Provider Advance shall thereafter be treated as a Final Advance under this
Agreement for purposes of determining the Applicable Liquidity Rate for interest
payable thereon and the obligation for repayment thereof. Subject to Sections
2.07 and 2.09 hereof, immediately upon the withdrawal of any amounts from the
Cash Collateral Account pursuant to Section 3.6(f) of the Intercreditor
Agreement on account of a reduction (or deemed reduction) in the Required
Amount, the Borrower shall repay to the Liquidity Provider a portion of the
Provider Advances in a principal amount equal to such reduction, plus interest
on the principal amount prepaid as provided in Section 3.07 hereof.
(b)
At
any
time when an Applied Provider Advance (or any portion thereof) is outstanding,
upon the deposit in the Cash Collateral Account of any amount pursuant to clause
"third" of Section 2.4(b) of the Intercreditor Agreement, clause "third"
of
Section 3.2 of the Intercreditor Agreement or clause "fourth"
of
Section 3.3 of the Intercreditor Agreement (any such amount being a
"Replenishment
Amount")
for
the purpose of replenishing or increasing the balance thereof up to the Required
Amount at such time, (i) the aggregate outstanding principal amount of all
Applied Provider Advances (and of Provider Advances treated as an Interest
Advance for purposes of determining the Applicable Liquidity Rate for interest
payable thereon) shall be automatically reduced by the amount of such
Replenishment Amount and (ii) the aggregate outstanding principal amount of
all
Unapplied Provider Advances shall be automatically increased by the amount
of
such Replenishment Amount.
(c)
Upon
the
provision of a Replacement Liquidity Facility in replacement of this Agreement
in accordance with Section 3.6(e) of the Intercreditor Agreement, amounts
remaining on deposit in the Cash Collateral Account after giving effect to
any
Applied Provider Advance on the date of such replacement shall be reimbursed
to
the replaced Liquidity Provider, but only to the extent such amounts are
necessary to repay in full to the replaced Liquidity Provider all amounts owing
to it hereunder.
Section
2.07. Payments
to the Liquidity Provider Under the Intercreditor Agreement.
In
order to provide for payment or repayment to the Liquidity Provider of any
amounts hereunder, the Intercreditor Agreement provides that amounts available
and referred to in Articles II and III of the Intercreditor Agreement, to the
extent payable to the Liquidity Provider pursuant to the terms of the
Intercreditor Agreement (including, without limitation, Section 3.6(f) of the
Intercreditor Agreement), shall be paid to the Liquidity Provider in accordance
with the terms thereof. Amounts so paid to, and not required to be returned
by,
the Liquidity Provider shall be applied by the Liquidity Provider to Liquidity
Obligations then due and payable in accordance with the Intercreditor Agreement
and shall discharge in full the corresponding obligations of the Borrower
hereunder (or, if not provided for in the Intercreditor Agreement, then in
such
manner as the Liquidity Provider shall deem appropriate).
Section
2.08. Book
Entries.
The
Liquidity Provider shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower resulting from
Advances made from time to time and the amounts of principal and interest
payable hereunder and paid from time to time in respect thereof; provided,
however,
that
the failure by the Liquidity Provider to maintain such account or accounts
shall
not affect the obligations of the Borrower in respect of Advances.
Section
2.09. Payments
from Available Funds Only.
All
payments to be made by the Borrower under this Agreement shall be made only
from
the amounts that constitute Scheduled Payments, Special Payments or payments
under the Fee Letter, Section 9.1 of the Participation Agreements and Section
6
of the Note Purchase Agreement and only to the extent that the Borrower shall
have sufficient income or proceeds therefrom to enable the Borrower to make
payments in accordance with the terms hereof after giving effect to the priority
of payments and other applicable provisions set forth in the Intercreditor
Agreement. The Liquidity Provider agrees that it will look solely to such
amounts to the extent available for distribution to it as provided in the
Intercreditor Agreement and this Agreement. The Borrower, in its individual
capacity, is not personally liable to the Liquidity Provider for any amounts
payable or liability under this Agreement, except as expressly provided in
this
Agreement, the Intercreditor Agreement or any Participation Agreement. Amounts
on deposit in the Cash Collateral Account shall be available to the Borrower
to
make payments under this Agreement only to the extent and for the purposes
expressly contemplated in Section 3.6(f) of the Intercreditor
Agreement.
Section
2.10. Early
Termination Advance.
At any
time during an Early Termination Notice Period, the Liquidity Provider shall
have the right in its sole discretion to elect to terminate its obligations
to
make Advances under this Agreement upon not less than 25 days' written notice
(the "Early
Termination Notice")
to the
Borrower. If the Liquidity Provider delivers an Early Termination Notice to
the
Borrower during the Early Termination Notice Period (and if the Liquidity
Provider shall not have been replaced in accordance with Section
3.6(e)
of
the Intercreditor Agreement on or before the expiry of the Early Termination
Notice Period), the Borrower shall be entitled at any time prior to the Early
Termination Date to request an Early Termination Advance in accordance with
Section 2.02(b) hereof and Section 3.6(d) of the Intercreditor
Agreement.
OBLIGATIONS
OF THE BORROWER
Section
3.01. Increased
Costs.
The
Borrower shall pay to the Liquidity Provider from time to time such amounts
as
may be necessary to compensate the Liquidity Provider for any increased costs
incurred by the Liquidity Provider which are attributable to its making or
maintaining any Advances hereunder or its obligation to make any such Advances
hereunder, or any reduction in any amount receivable by the Liquidity Provider
under this Agreement or the Intercreditor Agreement in respect of any such
Advances or such obligation (such increases in costs and reductions in amounts
receivable being herein called "Additional
Costs"),
resulting from any change after the date of this Agreement in U.S. federal,
state, municipal, or foreign laws or regulations (including Regulation D of
the
Board of Governors of the Federal Reserve System), or the adoption or making
after the date of this Agreement of any interpretations, directives, or
requirements applying to a class of banks including the Liquidity Provider
under
any U.S. federal, state, municipal, or any foreign laws or regulations (whether
or not having the force of law) by any court, central bank or other supervisory
authority charged with the interpretation or administration thereof (a
"Regulatory
Change"),
which: (1) changes the basis of taxation of any amounts payable to the Liquidity
Provider under this Agreement in respect of any such Advances or such obligation
(other than with respect to Excluded Taxes); or (2) imposes or modifies any
reserve, special deposit, compulsory loan or similar requirements relating
to
any extensions of credit or other assets of, or any deposits with or other
liabilities of, the Liquidity Provider (including any such Advances or such
obligation or any deposits referred to in the definition of LIBOR or related
definitions).
The
Liquidity Provider will notify the Borrower of any event occurring after the
date of this Agreement that will entitle the Liquidity Provider to compensation
pursuant to this Section 3.01 as promptly as practicable after it obtains
knowledge thereof and determines to request such compensation, which notice
shall describe in reasonable detail the calculation of the amounts owed under
this Section. Determinations by the Liquidity Provider for purposes of this
Section 3.01 of the effect of any Regulatory Change on its costs of making
or
maintaining Advances or on amounts receivable by it in respect of Advances,
and
of the additional amounts required to compensate the Liquidity Provider in
respect of any Additional Costs, shall be prima facie evidence of the amount
owed under this Section.
Notwithstanding
the preceding two paragraphs, the Liquidity Provider and the Subordination
Agent
agree that any permitted assignee or participant of the initial Liquidity
Provider which is not a bank shall not be entitled to the benefits of the
preceding two paragraphs (but without limiting the provisions of Section 7.08
hereof).
Section
3.02. Capital
Adequacy.
If (1)
the adoption or change, 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 supervisory authority
charged with the interpretation or administration thereof or (3) compliance
by
the Liquidity Provider or any corporation controlling the Liquidity Provider
with any applicable guideline or request of general applicability, issued after
the date hereof, by any central bank or other supervisory authority (whether
or
not having the force of law) that constitutes a change of the nature described
in clause (2), has the effect of requiring an increase in the amount of capital
required to be maintained by the Liquidity Provider or any corporation
controlling the Liquidity Provider, and such increase is based upon the
Liquidity Provider's obligations or Advances hereunder and other similar
obligations or advances, the Borrower shall, subject to the provisions of
Section 3.11, pay to the Liquidity Provider from time to time such additional
amount or amounts as are necessary to compensate the Liquidity Provider for
such
portion of such increase as shall be reasonably allocable to the Liquidity
Provider's obligations to the Borrower hereunder.
The
Liquidity Provider will notify the Borrower of any event occurring after the
date of this Agreement that will entitle the Liquidity Provider to compensation
pursuant to this Section 3.02 as promptly as practicable after it obtains
knowledge thereof and determines to request such compensation, which notice
shall describe in reasonable detail the calculation of the amounts owed under
this Section. Determinations by the Liquidity Provider for purposes of this
Section 3.02 of the effect of any increase in the amount of capital required
to
be maintained by the Liquidity Provider and of the amount allocable to the
Liquidity Provider's obligations to the Borrower hereunder shall be prima facie
evidence of the amounts owed under this Section.
Notwithstanding
the preceding two paragraphs, the Liquidity Provider and the Subordination
Agent
agree that any permitted assignee or participant of the initial Liquidity
Provider which is not a bank shall not be entitled to the benefits of the
preceding two paragraphs (but without limiting the provisions of Section 7.08
hereof).
Section
3.03. Payments
Free of Deductions.
(a)
All
payments made by the Borrower under this Agreement shall be made free and clear
of and without reduction or withholding for or on account of any present or
future Taxes of any nature whatsoever now or hereafter imposed, levied,
collected, withheld or assessed, other than Excluded Withholding Taxes (such
non-excluded Taxes being referred to herein, collectively, as "Indemnified
Taxes"
and,
individually, as an "Indemnified
Tax")
unless
any such reduction or withholding is required by applicable law. If any Taxes
are required to be withheld from any amounts payable to the Liquidity Provider
under this Agreement, (i) the Borrower shall within the time prescribed therefor
by applicable law pay to the appropriate governmental or taxing authority the
full amount of any such Taxes (including any additional Tax required to be
deducted or withheld in respect of the additional amounts payable under clause
(ii) hereof) and make such reports or returns in connection therewith at the
time or times and in the manner prescribed by applicable law, and (ii) in the
case of Indemnified Taxes, the amounts payable to the Liquidity Provider shall
be increased to the extent necessary to yield to the Liquidity Provider (after
deduction or withholding for or on account of all Indemnified Taxes and any
additional Taxes required to be deducted or withheld or payable by the Liquidity
Provider by reason of the receipt or accrual of the additional amounts payable
pursuant to this clause (ii)) interest or any other such amounts payable under
this Agreement at the rates or in the
amounts
which would have been due or received by it if no such reduction or withholding
had been required. If the Liquidity Provider (including a successor Liquidity
Provider) is not organized under the laws of the United States or any state
thereof, to the extent it is eligible to do so, the Liquidity Provider agrees
to
provide to the Borrower, prior to the first date any amount is payable to it
hereunder, two executed original copies of Internal Revenue Service Form W-8BEN
or W-8ECI, as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that the Liquidity Provider is exempt
from
or entitled to a reduced rate of United States withholding Tax on payments
pursuant to this Agreement. In addition, the Liquidity Provider will provide,
from time to time upon the reasonable request of the Borrower, such additional
forms or documentation as may be necessary to establish an available exemption
from (or an entitlement to a reduced rate of) withholding Tax on payments
hereunder. Within 30 days after the date of each payment hereunder, the Borrower
shall furnish to the Liquidity Provider an original or certified copy of a
receipt (or other documentary evidence reasonably acceptable to the Liquidity
Provider) evidencing the payment of the Taxes applicable to such
payment.
(b)
If the Liquidity Provider (including a successor Liquidity Provider) is not
organized under the laws of the United States or any state thereof, all Advances
made by the Liquidity Provider under this Agreement shall be made free and
clear
of, and without reduction for or on account of, any Taxes that are imposed
by a
jurisdiction in which the Liquidity Provider is organized, has its Lending
Office or maintains its principal place of business unless such reduction or
withholding is required by applicable law. If any such Taxes are required to
be
withheld or deducted from any Advances, the Liquidity Provider shall
(i) within the time prescribed therefor by applicable law pay to the
appropriate governmental or taxing authority the full amount of any such Taxes
(and any additional Taxes in respect of the additional amounts payable under
clause (ii) hereof) and make such reports or returns in connection
therewith at the time or times and in the manner prescribed by applicable law,
and (ii) pay to the Borrower an additional amount which (after deduction of
all such Taxes) shall be sufficient to yield to the Borrower the full amount
that would have been received by it had no such withholding or deduction been
required. The Borrower shall, for United States federal income tax purposes
and
for all purposes hereunder, treat such payments as Interest Advances, and,
as
such, will treat such payments as loans made by the Liquidity Provider to the
Borrower, unless otherwise required by law (it being understood and agreed
that
the treatment of such additional amounts shall not reduce the Maximum Available
Commitment hereunder). Within 30 days after the date of each payment hereunder,
the Liquidity Provider shall furnish to the Borrower an original or certified
copy of a receipt (or other documentary evidence reasonably acceptable to the
Borrower) evidencing the payment of the Taxes applicable to such
payment.
(c)
If any exemption from, or reduction in the rate of, any Taxes required to be
deducted or withheld from amounts payable by the Liquidity Provider hereunder
is
reasonably available to the Borrower to establish that payments under this
Agreement are exempt from (or entitled to a reduced rate of) Tax, the Borrower
shall deliver to the Liquidity Provider such form or forms and such other
evidence of the eligibility of the Borrower for such exemption or reduction
as
the Liquidity Provider may reasonably identify to the Borrower as being required
as a condition to exemption from, or reduction in the rate of, any such
Taxes.
Section
3.04. Payments.
The Borrower shall make or cause to be made each payment to the Liquidity
Provider under this Agreement so as to cause the same to be received by the
Liquidity Provider not later than 1:00 p.m. (New York City time) on the day
when
due. The Borrower shall make all such payments in U.S. dollars, to the Liquidity
Provider in immediately available funds, by wire transfer to Deutsche Bank
Trust
Company Americas, New York, ABA No. ▇▇▇-▇▇▇-▇▇▇, Swift Code: ▇▇▇▇▇▇▇▇,
Account Holder: Landesbank Baden-Württemberg, Stuttgart, Account
No. ▇▇-▇▇▇-▇▇▇, Swift Code: ▇▇▇▇▇▇▇▇, Reference: Loan Administration,
Continental EETC 2005-ERJ1; or to such other bank account in the United States
as the Liquidity Provider may from time to time direct the Subordination
Agent.
Section
3.05. Computations.
All
computations of interest based on the Base Rate shall be made on the basis
of a
year of 365 or 366 days, as the case may be, and all computations of interest
based on LIBOR 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 such extension of time shall be included in the computation
of
interest payable hereunder (and if so made, shall be deemed to have been made
when due).
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 or Applied Special Termination Advance, from and including the date
on
which the amount thereof was withdrawn from the Cash Collateral Account to
pay
interest on the Certificates) to but excluding the date such principal amount
shall be paid in full (or, in the case of an Applied Provider Advance or Applied
Special Termination Advance, the date on which the Cash Collateral Account
is
fully replenished in respect of such Advance) and (ii) any other amount due
hereunder (whether fees, commissions, expenses or other amounts or, to the
extent permitted by law, installments of interest on Advances or any such other
amount) that is not paid when due (whether at stated maturity, by acceleration
or otherwise) from and including the due date thereof to but excluding the
date
such amount is paid in full, in each such case, at a fluctuating interest rate
per annum for each day equal to the Applicable Liquidity Rate (as defined below)
for such Advance or such other amount, as the case may be, as in effect for
such
day, but in no event at a rate per annum greater than the maximum rate permitted
by applicable law; provided,
however,
that,
if at any time the otherwise applicable interest rate as set forth in this
Section 3.07 shall exceed the maximum rate permitted by applicable law, then
any
subsequent reduction in such interest rate will not reduce the rate of interest
payable pursuant to this Section 3.07 below the maximum rate permitted by
applicable law until the total amount of interest accrued equals the amount
of
interest that would have accrued if such otherwise applicable interest rate
as
set forth in this Section 3.07 had at all times been in effect.
(b)
Each
Advance (including, without limitation, each outstanding Unapplied Provider
Advance and Unapplied Special Termination Advance) will be either a Base Rate
Advance or a LIBOR Advance as provided in this Section 3.07. Each such Advance
will be a Base Rate Advance for the period from the date of its borrowing to
(but excluding) the third London/Stuttgart Business Day following the Liquidity
Provider's receipt of the Notice of Borrowing for such Advance. Thereafter,
such
Advance shall be a LIBOR Advance; provided
that the
Borrower (at the direction of the Controlling Party, so long as the Liquidity
Provider is not the Controlling Party) may (x) convert the Final Advance into
a
Base Rate Advance on the last day of an Interest Period for such Advance by
giving the Liquidity Provider no less than four Business Days' prior written
notice of such election or (y) elect to maintain the Final Advance as a Base
Rate Advance by not requesting a conversion of the Final Advance to a LIBOR
Advance under Clause (5) of the applicable Notice of Borrowing (or, if such
Final Advance is deemed to have been made, without delivery of a Notice of
Borrowing pursuant to Section 2.06, by requesting, prior to 11:00 a.m. (New
York
City time) on the first Business Day immediately following the Borrower's
receipt of the applicable Termination Notice, that such Final Advance not be
converted from a Base Rate Advance to a LIBOR Advance).
(c)
Each
LIBOR Advance shall bear interest during each Interest Period at a rate per
annum equal to LIBOR 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
in
effect from time to time plus the Applicable Margin for such Base Rate Advance,
payable in arrears on each Regular Distribution Date and, in the event of the
payment of principal of such Base Rate Advance on a day other than a Regular
Distribution Date, on the date of such payment (to the extent of interest
accrued on the amount of principal repaid).
(e)
Each
amount not paid when due hereunder (whether fees, commissions, expenses or
other
amounts or, to the extent permitted by applicable law, installments of interest
on Advances but excluding Advances) shall bear interest at a rate per annum
equal to the Base Rate plus 2.00% until paid.
(f)
Each
change in the Base Rate shall become effective immediately. The rates of
interest specified in this Section 3.07 with respect to any Advance or other
amount shall be referred to as the "Applicable
Liquidity Rate".
Section
3.08. Replacement
of Borrower.
From
time to time and subject to the successor Borrower's meeting the eligibility
requirements set forth in Section 6.9 of the Intercreditor Agreement applicable
to the Subordination Agent, upon the effective date and time specified in a
written and completed Notice of Replacement Subordination Agent in substantially
the form of Annex VII attached hereto (a "Notice
of Replacement Subordination Agent")
delivered to the Liquidity Provider by the then Borrower, the successor Borrower
designated therein shall be substituted for the Borrower for all purposes
hereunder.
Section
3.09. Funding
Loss Indemnification. The Borrower shall pay to the Liquidity
Provider, upon the request of the Liquidity Provider, such amount or amounts
as
shall be sufficient (in the reasonable opinion of the Liquidity Provider)
to
compensate it for any loss, cost, or expense incurred by reason of the
liquidation or redeployment of deposits or other funds acquired by the Liquidity
Provider to fund or maintain any LIBOR Advance (but excluding loss of
anticipated profits) incurred as a result of:
(a)
Any
repayment of a LIBOR Advance on a date other than the last day of the Interest
Period for such Advance; or
(b)
Any
failure by the Borrower to borrow a LIBOR Advance on the date for borrowing
specified in the relevant notice under Section 2.02.
Section
3.10. Illegality.
Notwithstanding any other provision in this Agreement, if any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by the Liquidity Provider (or its Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank
or
comparable agency shall make it unlawful or impossible for the Liquidity
Provider (or its Lending Office) to maintain or fund its LIBOR Advances, then
upon notice to the Borrower by the Liquidity Provider, the outstanding principal
amount of LIBOR Advances shall be converted to Base Rate Advances (a)
immediately upon demand of the Liquidity Provider, if such change or compliance
with such request, in the judgment of the Liquidity Provider, requires immediate
repayment; or (b) at the expiration of the last Interest Period to expire before
the effective date of any such change or request.
Section
3.11. Mitigation.
If a
condition arises or an event occurs which would, or would upon the giving of
notice, result in the payment of any additional costs or amounts pursuant to
Section 3.01, 3.02 or 3.03 or require the conversion of any Advance pursuant
to
Section 3.10, the Liquidity Provider, promptly upon becoming aware of the same,
shall notify the Borrower and shall use reasonable efforts (consistent with
applicable legal and regulatory restrictions) to mitigate the effects of such
condition or event, including the designation of a different Lending Office
or
furnishing of the proper certificates under any applicable tax laws, tax
treaties and conventions to the extent that such certificates are legally
available to the Liquidity Provider; provided,
that
the Liquidity Provider shall be under no obligation to take any step that,
in
its good-faith opinion would (i) result in its incurring any additional costs
in
performing its obligations hereunder unless the Borrower has agreed to reimburse
it therefor or (ii) be otherwise disadvantageous to the Liquidity Provider
in
the reasonable judgment of the Liquidity Provider.
CONDITIONS
PRECEDENT
Section
4.01. Conditions
Precedent to Effectiveness of Section 2.01.
Section
2.01 of this Agreement shall become effective on and as of the first date (the
"Effective
Date")
on
which the following conditions precedent have been satisfied or
waived:
(a)
The
Liquidity Provider shall have received each of the following, and in the case
of
each document delivered pursuant to paragraphs (i), (ii) and (iii), each in
form
and substance satisfactory to the Liquidity Provider:
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(i)
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This
Agreement duly executed on behalf of the Borrower and the Fee
Letter
applicable to this Agreement duly executed on behalf of each
of the
parties thereto (other than the Liquidity Provider);
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(ii)
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The
Intercreditor Agreement duly executed on behalf of each of
the parties
thereto (other than the Liquidity Provider);
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(iii)
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Fully
executed copies of each of the Operative Agreements duly executed
and
delivered on or before the Closing Date (other than this Agreement,
the
Fee Letter applicable to this Agreement and the Intercreditor
Agreement);
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(iv)
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A
copy of the Prospectus Supplement and specimen copies of the
Certificates;
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(v)
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An
executed copy of each document, instrument, certificate and
opinion
delivered on or before the Closing Date pursuant to the Trust
Agreement,
the Intercreditor Agreement and the other Operative Agreements
(in the
case of each such opinion, other than the opinion of counsel
for the
Underwriter, either addressed to the Liquidity Provider or
accompanied by
a letter from the counsel rendering such opinion to the effect
that the
Liquidity Provider is entitled to rely on such opinion as of
its date as
if it were addressed to the Liquidity Provider);
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(vi)
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Evidence
that there shall have been made and shall be in full force
and effect, all
filings, recordings and/or registrations, and there shall have
been given
or taken any notice or other similar action as may be reasonably
necessary
or, to the extent reasonably requested by the Liquidity Provider,
reasonably advisable, in order to establish, perfect, protect
and preserve
the right, title and interest, remedies, powers, privileges,
liens and
security interests of, or for the benefit of, the Trustee,
the Borrower
and the Liquidity Provider created by the Operative Agreements
executed
and delivered on or prior to the Closing Date;
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(vii)
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An
agreement from Continental, pursuant to which (A) Continental
agrees to
provide copies of quarterly financial statements and audited
annual
financial statements to the Liquidity Provider, and such other
information
as the Liquidity Provider shall reasonably request with respect
to the
transactions contemplated by the Operative Agreements, in each
case, only
to the extent that Continental is obligated to provide such
information
pursuant to Section 8.2.1 of the Leases to the parties thereto
and (B)
Continental agrees to allow the Liquidity Provider to inspect
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Continental's
books and records regarding such transactions, and to discuss such
transactions with officers and employees of Continental; and
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(viii)
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Such
other documents, instruments, opinions and approvals pertaining
to the
transactions contemplated hereby or by the other Operative Agreements
as
the Liquidity Provider shall have reasonably requested.
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(b)
The
following statement shall be true on and as of the Effective Date: no event
has
occurred and is continuing, or would result from the entering into of this
Agreement or the making of any Advance, which constitutes a Liquidity Event
of
Default.
(c)
The
Liquidity Provider shall have received payment in full of all fees and other
sums required to be paid to or for the account of the Liquidity Provider on
or
prior to the Effective Date.
(d)
All
conditions precedent to the issuance of the Certificates under the Trust
Agreement shall have been satisfied or waived and all conditions precedent
to
the purchase of the 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 Liquidity Provider, certifying that all
conditions precedent to the effectiveness of Section 2.01 have been satisfied
or
waived.
Section
4.02. Conditions
Precedent to Borrowing.
The
obligation of the Liquidity Provider to make an Advance on the occasion of
each
Borrowing shall be subject to the conditions precedent that the Effective Date
shall have occurred and, on or prior to the date of such Borrowing, the Borrower
shall have delivered a Notice of Borrowing which conforms to the terms and
conditions of this Agreement and has been completed as may be required by the
relevant form of the Notice of Borrowing for the type of Advance
requested.
COVENANTS
Section
5.01. Affirmative
Covenants of the Borrower.
So long
as any Advance shall remain unpaid or the Liquidity Provider shall have any
Maximum Commitment hereunder or the Borrower shall have any obligation to pay
any amount to the Liquidity Provider hereunder, the Borrower will, unless the
Liquidity Provider shall otherwise consent in writing:
(a)
Performance
of This and Other Agreements.
Punctually pay or cause to be paid all amounts payable by it under this
Agreement and the other Operative Agreements and observe and perform in all
material respects the conditions, covenants and requirements applicable to
it
contained in this Agreement and the other Operative Agreements.
(b)
Reporting
Requirements.
Furnish
to the Liquidity Provider with reasonable promptness, such other information
and
data with respect to the transactions
contemplated
by the Operative Agreements as from time to time may be reasonably requested
by
the Liquidity Provider; and permit the Liquidity Provider, upon reasonable
notice, to inspect the Borrower's books and records with respect to such
transactions and to meet with officers and employees of the Borrower to discuss
such transactions.
(c)
Certain
Operative Agreements.
Furnish
to the Liquidity Provider with reasonable promptness, such Operative Agreements
entered into after the date hereof as from time to time may be reasonably
requested by the Liquidity Provider.
Section
5.02. Negative
Covenants of the Borrower.
So long
as any Advance shall remain unpaid or the Liquidity Provider shall have any
Maximum Commitment hereunder or the Borrower shall have any obligation to pay
any amount to the Liquidity Provider hereunder, the Borrower will not appoint
or
permit or suffer to be appointed any successor Borrower without the prior
written consent of the Liquidity Provider, which consent shall not be
unreasonably withheld or delayed.
LIQUIDITY
EVENTS OF DEFAULT
AND
SPECIAL TERMINATION
Section
6.01. Liquidity
Events of Default.
If (a)
any Liquidity Event of Default has occurred and is continuing and (b) there
is a Performing Note Deficiency, the Liquidity Provider may, in its discretion,
deliver to the Borrower a Termination Notice, the effect of which shall be
to
cause (i) the obligation of the Liquidity Provider to make Advances hereunder
to
expire on the fifth Business Day after the date on which such Termination Notice
is received by the Borrower, (ii) the Borrower to promptly request, and the
Liquidity Provider to promptly make, a Final Advance in accordance with Section
2.02(e) hereof and Section 3.6(i) of the Intercreditor Agreement, (iii) all
other outstanding Advances to be automatically converted into Final Advances
for
purposes of determining the Applicable Liquidity Rate for interest payable
thereon, and (iv) subject to Sections 2.07 and 2.09 hereof, all Advances
(including, without limitation, any Provider Advance and Applied Provider
Advance), any accrued interest thereon and any other amounts outstanding
hereunder to become immediately due and payable to the Liquidity
Provider.
Section
6.02. Special
Termination.
If the
aggregate Pool Balance of the Certificates is greater than the aggregate
outstanding principal amount of the Equipment Notes (other than any Equipment
Notes previously sold or with respect to which the collateral securing such
Equipment Notes has been disposed of) at any time during the 18-month period
prior to April 1, 2021, the Liquidity Provider may, in its discretion, deliver
to the Borrower a Special Termination Notice, the effect of which shall be
to
cause (a) the obligation of the Liquidity Provider to make Advances hereunder
to
expire on the fifth Business Day after the date on which such Special
Termination Notice is received by the Borrower, (b) the Borrower to
promptly request, and the Liquidity Provider to promptly make, a Special
Termination Advance in accordance with Section 2.02(f) hereof and
Section 3.6(k) of the Intercreditor Agreement and (c) subject to
Sections 2.07 and 2.09 hereof, all Advances (including, without limitation,
any Provider Advance and Applied Provider Advance), any accrued interest thereon
and any other
amounts
outstanding hereunder to become immediately due and payable to the Liquidity
Provider.
MISCELLANEOUS
Section
7.01. Amendments,
Etc.
No
amendment or waiver of any provision of this Agreement, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless
the
same shall be in writing and signed by the Liquidity Provider and, in the case
of an amendment or of a waiver by the Borrower, the Borrower, and then such
waiver or consent shall be effective only in the specific instance and for
the
specific purpose for which given.
Section
7.02. Notices,
Etc.
Except
as
otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including mailed or delivered or
sent by telecopier):
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If
to the Borrower, to:
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Wilmington
Trust Company
▇▇▇▇▇▇ Square North ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: Corporate Trust Administration Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ |
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If
to the Liquidity Provider, to:
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Landesbank
Baden-Württemberg
Am Hauptbahnhof 2 D-70173 Stuttgart Germany Attention: Structured Finance Telephone: ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ Telecopy: ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ |
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with
a copy of any Notice of Borrowing to:
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Landesbank
Baden-Württemberg
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ |
or,
as to
each of the foregoing, at such other address as shall be designated by such
Person in a written notice to the others. All such notices and communications
shall be effective (i) if given by telecopier, when transmitted to the
telecopier number specified above with receipt confirmed, (ii) if given by
mail,
five Business Days after being deposited in the mails addressed as specified
above (for purposes of notices and communications other than Notices of
Borrowing, the term "Business Day" shall, for purposes of this
Section 7.02, be deemed to exclude any day in which
commercial
banks are required or authorized to close in Stuttgart, Germany), and (iii)
if
given by other means, when delivered at the address specified above, except
that
notices to the Liquidity Provider pursuant to the provisions of Article II
and
Article III hereof shall not be effective until received by the Liquidity
Provider, subject to the provisions of the second sentence of Section 2.02(g).
A
copy of all notices delivered hereunder to either party shall in addition be
delivered to each of the parties to the Participation Agreements at their
respective addresses set forth therein.
Section
7.03. No
Waiver; Remedies.
No
failure on the part of the Liquidity Provider to exercise, and no delay in
exercising, any right under this Agreement shall operate as a waiver thereof;
nor shall any single or partial exercise of any right under this Agreement
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section
7.04. Further
Assurances.
The
Borrower agrees to do such further acts and things and to execute and deliver
to
the Liquidity Provider such additional assignments, agreements, powers and
instruments as the Liquidity Provider may reasonably require or deem advisable
to carry into effect the purposes of this Agreement and the other Operative
Agreements or to better assure and confirm unto the Liquidity Provider its
rights, powers and remedies hereunder and under the other Operative
Agreements.
Section
7.05. Indemnification;
Survival of Certain Provisions.
The
Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Section 9.1 of the Participation Agreements. In addition,
the Borrower agrees to indemnify, protect, defend and hold harmless the
Liquidity Provider from, against and in respect of, and shall pay on demand,
all
Expenses of any kind or nature whatsoever (other than any Expenses of the nature
described in Section 3.01, 3.02 or 7.07 hereof or in the Fee Letter applicable
to this Agreement (regardless of whether indemnified against pursuant to said
Sections or in such Fee Letter)), that may be imposed on, incurred by or
asserted against any Liquidity Indemnitee, in any way relating to, resulting
from, or arising out of or in connection with any action, suit or proceeding
by
any third party against such Liquidity Indemnitee and relating to this
Agreement, the Fee Letter applicable to this Agreement, the Intercreditor
Agreement or any Financing Agreement; provided,
however,
that
the Borrower shall not be required to indemnify, protect, defend and hold
harmless any Liquidity Indemnitee in respect of any Expense of such Liquidity
Indemnitee to the extent such Expense is (i) attributable to the gross
negligence or willful misconduct of such Liquidity Indemnitee or any other
Liquidity Indemnitee; (ii) ordinary and usual operating overhead expense;
(iii) attributable to the failure by the Liquidity Provider to perform or
observe any agreement, covenant or condition on its part to be performed or
observed in this Agreement or the Intercreditor Agreement, or (iv) a Tax. The
indemnities contained in Section 9.1 of the Participation Agreements, and the
provisions of Sections 3.01, 3.02, 3.03, 3.09, 7.05 and 7.07 hereof, shall
survive the termination of this Agreement.
Section
7.06. Liability
of the Liquidity Provider.
(a)
Neither
the Liquidity Provider nor any of its officers, employees, directors or
Affiliates shall be liable or responsible for: (i) the use which may be made
of
the Advances or any acts or omissions of the Borrower or any beneficiary or
transferee in connection therewith; (ii) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if
such
documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; or (iii) the making of Advances by the Liquidity Provider
against delivery of a Notice of Borrowing and other documents which do not
comply with the terms hereof; provided,
however,
that
the Borrower shall have a claim against the Liquidity Provider, and the
Liquidity Provider shall be liable to the Borrower, to the extent of any damages
suffered by the Borrower which were the result of (A) the Liquidity Provider's
willful misconduct or gross negligence in determining whether documents
presented hereunder comply with the terms hereof, or (B) any breach by the
Liquidity Provider of any of the terms of this Agreement, including, but not
limited to, the Liquidity Provider's failure to make lawful payment hereunder
after the delivery to it by the Borrower of a Notice of Borrowing strictly
complying with the terms and conditions hereof. In no event, however, shall
the
Liquidity Provider be liable on any theory of liability for any special,
indirect, consequential or punitive damages (including, without limitation,
any
loss of profits, business or anticipated savings).
(b)
Neither
the Liquidity Provider nor any of its officers, employees, directors or
Affiliates shall be liable or responsible in any respect for (i) any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with this Agreement or
any
Notice of Borrowing delivered hereunder, or (ii) any action, inaction or
omission which may be taken by it in good faith, absent willful misconduct
or
gross negligence (in which event the extent of the Liquidity Provider's
potential liability to the Borrower shall be limited as set forth in the
immediately preceding paragraph), in connection with this Agreement or any
Notice of Borrowing.
Section
7.07. Costs,
Expenses and Taxes.
The
Borrower agrees to pay, or cause to be paid (a) on the Effective Date and on
such later date or dates on which the Liquidity Provider shall make demand,
all
reasonable out-of-pocket costs and expenses (including, without limitation,
the
reasonable fees and expenses of outside counsel for the Liquidity Provider)
of
the Liquidity Provider in connection with the preparation, negotiation,
execution, delivery, filing and recording of this Agreement, any other Operative
Agreement and any other documents which may be delivered in connection with
this
Agreement and (b) on demand, all reasonable costs and expenses (including
reasonable counsel fees and expenses) of the Liquidity Provider in connection
with (i) the enforcement of this Agreement or any other Operative Agreement,
(ii) the modification or amendment of, or supplement to, this Agreement or
any
other Operative Agreement or such other documents which may be delivered in
connection herewith or therewith (whether or not the same shall become
effective) or any waiver or consent thereunder (whether or not the same shall
become effective) or (iii) any action or proceeding relating to any order,
injunction, or other process or decree restraining or seeking to restrain the
Liquidity Provider from paying any amount under this Agreement, the
Intercreditor Agreement or any other Operative Agreement or otherwise affecting
the application of funds in the Cash Collateral Account. In addition, the
Borrower shall pay any and all recording, stamp and other similar taxes and
fees
payable or determined to be payable in connection with the execution, delivery,
filing and recording of this Agreement, any other Operative Agreement and such
other documents, and agrees to hold the Liquidity Provider harmless from and
against any and all liabilities with respect to or resulting from any delay
in
paying or omission to pay such taxes or fees.
Section
7.08. Binding
Effect; Participations.
(a)
This Agreement shall be binding upon and inure to the benefit of the Borrower
and the Liquidity Provider and their respective successors and assigns, except
that neither the Liquidity Provider (except as otherwise provided in this
Section 7.08) nor (except as contemplated by Section 3.08) the Borrower shall
have the right to assign its rights or obligations hereunder or any interest
herein without the prior written consent of the other party, subject to the
requirements of Section 7.08(b) and any assignment in violation thereof shall
be
void ab initio. The Liquidity Provider may grant
participations herein or in any of its rights hereunder (including, without
limitation, funded participations and participations in rights to receive
interest payments hereunder) and under the other Operative Agreements to such
Persons (other than Continental and its Affiliates) as the Liquidity Provider
may in its sole discretion select, subject to the requirements of Section
7.08(b). No such granting of participations by the Liquidity Provider, however,
will relieve the Liquidity Provider of its obligations hereunder. In connection
with any participation or any proposed participation, the Liquidity Provider
may
disclose to the participant or the proposed participant any information that
the
Borrower is required to deliver or to disclose to the Liquidity Provider
pursuant to this Agreement. The Borrower acknowledges and agrees that the
Liquidity Provider's source of funds may derive in part from its participants.
Accordingly, references in this Agreement and the other Operative Agreements
to
determinations, reserve and capital adequacy requirements, increased costs,
reduced receipts, additional amounts due pursuant to Section 3.03 and the like
as they pertain to the Liquidity Provider shall be deemed also to include those
of each of its participants that are banks (subject, in each case, to the
maximum amount that would have been incurred by or attributable to the Liquidity
Provider directly if the Liquidity Provider, rather than the participant, had
held the interest participated).
(b)
If,
pursuant to subsection (a) above, the Liquidity Provider sells any participation
in this Agreement to any bank or other entity (each, a "Transferee"),
then,
concurrently with the effectiveness of such participation, the Transferee shall
(i) represent to the Liquidity Provider (for the benefit of the Liquidity
Provider and the Borrower) either (A) that it is incorporated under the laws
of
the United States or a state thereof or (B) that under applicable law and
treaties, no taxes will be required to be withheld with respect to any payments
to be made to such Transferee in respect of this Agreement, (ii) furnish to
the
Liquidity Provider and the Borrower either (x) a statement that it is
incorporated under the laws of the United States or a state thereof or (y)
if it
is not so incorporated, two copies of a properly completed United States
Internal Revenue Service Form W-8ECI or Form W-8BEN, as appropriate, or other
applicable form, certificate or document prescribed by the Internal Revenue
Service certifying, in each case, such Transferee's entitlement to a complete
exemption from United States federal withholding tax in respect to any and
all
payments to be made hereunder, and (iii) agree (for the benefit of the Liquidity
Provider and the Borrower) to provide the Liquidity Provider and the Borrower
a
new Form W-8ECI or Form W-8BEN, as appropriate, or other applicable form, (A)
on
or before the date that any such form expires or becomes obsolete or (B) after
the occurrence of any event requiring a change in the most recent form
previously delivered by it and prior to the immediately following due date
of
any payment by the Borrower hereunder, certifying in the case of a Form W-8BEN
or Form W-8ECI that such Transferee is entitled to a complete exemption from
United States federal withholding tax on payments under this Agreement. Unless
the Borrower has received forms or other documents reasonably satisfactory
to it
(and required by applicable law) indicating that payments hereunder are not
subject to United States
federal
withholding tax, the Borrower will withhold taxes as required by law from such
payments at the applicable statutory rate.
(c)
Notwithstanding
the other provisions of this Section 7.08, the Liquidity Provider may assign
and
pledge all or any portion of the Advances owing to it to any Federal Reserve
Bank or the United States Treasury as collateral security pursuant to Regulation
A of the Board of Governors of the Federal Reserve System and any Operating
Circular issued by such Federal Reserve Bank, provided that any payment in
respect of such assigned Advances made by the Borrower to the Liquidity Provider
in accordance with the terms of this Agreement shall satisfy the Borrower's
obligations hereunder in respect of such assigned Advance to the extent of
such
payment. No such assignment shall release the Liquidity Provider from its
obligations hereunder.
Section
7.09. Severability.
Any
provision of this Agreement which is or becomes invalid, prohibited,
unenforceable or not authorized in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, prohibition,
unenforceability or non-authorization without affecting or invalidating the
remaining provisions hereof as to such jurisdiction 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 (sitting in the City of
New
York), the courts of the United States of America for the Southern District
of
New York, and the appellate courts from any thereof;
(ii)
consents
that any such action or proceeding may be brought in such courts, and waives
any
objection that it may now or hereafter have to the venue of any such action
or
proceeding in any such court or that such action or proceeding was brought
in an
inconvenient court and agrees not to plead or claim the same;
(iii)
agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to each party hereto at its address
set
forth in Section 7.02 hereof, or at such other address of which the Liquidity
Provider shall have been notified pursuant thereto; and
(iv)
agrees
that nothing herein shall affect the right to effect service of process in
any
other manner permitted by law or shall limit the right to ▇▇▇ in any other
jurisdiction.
(b)
THE
BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE TO WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT
OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER
OF
THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING ESTABLISHED, including,
without limitation, contract claims, tort claims, breach of duty claims and
all
other common law and statutory claims. The Borrower and the Liquidity Provider
each warrant and represent that it has reviewed this waiver with its legal
counsel, and that it knowingly and voluntarily waives its jury trial rights
following consultation with such legal counsel. THIS WAIVER IS IRREVOCABLE,
AND
CANNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY
TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT.
(c)
The
Liquidity Provider hereby waives any immunity it may have from the jurisdiction
of the courts of the United States or of any state thereof and waives any
immunity any of its properties located in the United States may have from
attachment or execution upon a judgment entered by any such court under the
United States Foreign Sovereign Immunities Act of 1976 or any similar successor
legislation.
Section
7.12. Execution
in Counterparts. This
Agreement may be executed in any number of counterparts and by different parties
hereto on separate counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section
7.13. Entirety.
This
Agreement, the Intercreditor Agreement and the other Operative Agreements to
which the Liquidity Provider is a party constitute the entire agreement of
the
parties hereto with respect to the subject matter hereof and supersedes all
prior understandings and agreements of such parties.
Section
7.14. Headings.
Section
headings in this Agreement are included herein for convenience of reference
only
and shall not constitute a part of this Agreement for any other
purpose.
Section
7.15. LIQUIDITY
PROVIDER'S OBLIGATION TO MAKE ADVANCES.
EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE LIQUIDITY
PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO DELIVER
NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL BE
UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE
STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered by their respective officers or representatives thereunto duly
authorized as of the date first set forth above.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as
Subordination
Agent, as agent and trustee
for
the
Trust, as Borrower
By___________________________________
Name:
Title:
LANDESBANK
BADEN-WÜRTTEMBERG,
as
Liquidity Provider
By___________________________________
Name:
Title:
By___________________________________
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 Landesbank Baden-Württemberg (the "Liquidity
Provider"),
with
reference to the Revolving Credit Agreement (2005-ERJ1) dated as of
September 22, 2005, between the Borrower and the Liquidity Provider (the
"Liquidity
Agreement";
the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The
Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The
Borrower is delivering this Notice of Borrowing for the making of an Interest
Advance by the Liquidity Provider to be used, subject to clause (3)(v) below,
for the payment of interest on the Certificates which was payable on
____________, ____ (the "Distribution
Date")
in
accordance with the terms and provisions of the Trust Agreement and the
Certificates, which Advance is requested to be made on ____________, ____.
The
Interest Advance should be transferred to [name of bank/wire instructions/ABA
number] in favor of account number [ __ ], reference [ __ ].
(3) The
amount of the Interest Advance requested hereby (i) is $_______________.__,
to
be applied in accordance with Sections 3.6(a) and 3.6(b) of the Intercreditor
Agreement in respect of the payment of the interest which was due and payable
on
the Certificates on the Distribution Date, (ii) does not include any amount
with
respect to the payment of principal of, or premium on, the Certificates, (iii)
was computed in accordance with the provisions of the Certificates, the Trust
Agreement and the Intercreditor Agreement (a copy of which computation is
attached hereto as Schedule I), (iv) does not exceed the Maximum Available
Commitment on the date hereof, (v) does not include any amount of interest
which
was due and payable on the Certificates on such Distribution Date but which
remains unpaid due to the failure of the Depositary to pay any amount of accrued
interest on the Deposits on such Distribution Date and (vi) has not been and
is
not the subject of a prior or contemporaneous Notice of Borrowing.
(4) Upon
receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the
Borrower will apply the same in accordance with the terms of Section 3.6(b)
of the Intercreditor Agreement, (b) no portion of such amount shall be applied
by the Borrower for any other purpose and (c) no portion of such amount until
so
applied shall be commingled with other funds held by the Borrower.
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, the
making of the Interest Advance as requested by this Notice of Borrowing shall
automatically reduce, subject to reinstatement in accordance with the terms
of
the Liquidity Agreement, the Maximum Available Commitment by an amount equal
to
the amount of the Interest Advance requested to be made hereby as set forth
in
clause (i) of paragraph (3) of this Notice of
Borrowing
and such reduction shall automatically result in corresponding reductions in
the
amounts available to be borrowed pursuant to a subsequent Advance.
IN
WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as
Subordination
Agent, as Borrower
By:___________________________________
Name:
Title:
SCHEDULE
I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert
copy of computations in accordance with Interest Advance Notice of
Borrowing]
Annex
II to
EARLY
TERMINATION ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
"Borrower"),
hereby certifies to Landesbank Baden-Württemberg (the "Liquidity
Provider"),
with
reference to the Revolving Credit Agreement (2005-ERJ1) dated as of
September 22, 2005, between the Borrower and the Liquidity Provider (the
"Liquidity Agreement";
the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The
Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The
Borrower is delivering this Notice of Borrowing for the making of the Early
Termination Advance by the Liquidity Provider to be used for the funding of
the
Cash Collateral Account in accordance with Section 3.6(d) of the Intercreditor
Agreement, which Advance is requested to be made on __________, ____. The Early
Termination Advance should be transferred to [name of bank/wire instructions/ABA
number] in favor of account number [ __ ], reference [ __ ].
(3) The
amount of the Early Termination Advance requested hereby (i) is
$_______________.__, which equals the Maximum Available Commitment on the date
hereof and is to be applied in respect of the funding of the Cash Collateral
Account in accordance with Sections 3.6(d) and 3.6(f) of the Intercreditor
Agreement, (ii) does not include any amount with respect to the payment of
the
principal of, or premium on, the Certificates, (iii) was computed in accordance
with the provisions of the Certificates, the Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I), and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon
receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the
Borrower will deposit such amount in the Cash Collateral Account and apply
the
same in accordance with the terms of Sections 3.6(d) and 3.6(f) of the
Intercreditor Agreement, (b) no portion of such amount shall be applied by
the
Borrower for any other purpose and (c) no portion of such amount until so
applied shall be commingled with other funds held by the Borrower.
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A)
the
making of the Early Termination Advance as requested by this Notice of Borrowing
shall automatically and irrevocably terminate the obligation of the Liquidity
Provider to make further Advances under the Liquidity Agreement; and (B)
following the making by the Liquidity Provider of the Early Termination Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
IN
WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as
Subordination
Agent, as Borrower
By:___________________________________
Name:
Title:
SCHEDULE
I TO EARLY TERMINATION ADVANCE NOTICE OF BORROWING
[Insert
copy of computations in accordance with Early Termination Advance Notice of
Borrowing]
Annex
III to
[RESERVED]
Annex
IV to
DOWNGRADE
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
"Borrower"),
hereby certifies to Landesbank Baden-Württemberg (the "Liquidity
Provider"),
with
reference to the Revolving Credit Agreement (2005-ERJ1) dated as of
September 22, 2005, between the Borrower and the Liquidity Provider (the
"Liquidity
Agreement";
the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The
Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The
Borrower is delivering this Notice of Borrowing for the making of the Downgrade
Advance by the Liquidity Provider to be used for the funding of the Cash
Collateral Account in accordance with Section 3.6(c) of the Intercreditor
Agreement by reason of the occurrence of a Downgrade Event, which Advance is
requested to be made on __________, ____. The Downgrade Advance should be
transferred to [name of bank/wire instructions/ABA number] in favor of account
number [ __ ], reference [ __ ].
(3) The
amount of the Downgrade Advance requested hereby (i) is $_______________.__,
which equals the Maximum Available Commitment on the date hereof and is to
be
applied in respect of the funding of the Cash Collateral Account in accordance
with Sections 3.6(c) and 3.6(f) of the Intercreditor Agreement, (ii) does not
include any amount with respect to the payment of the principal of, or premium
on, the Certificates, (iii) was computed in accordance with the provisions
of
the Certificates, the Trust Agreement and the Intercreditor Agreement (a copy
of
which computation is attached hereto as Schedule I), and (iv) has not been
and
is not the subject of a prior or contemporaneous Notice of Borrowing under
the
Liquidity Agreement.
(4) Upon
receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the
Borrower will deposit such amount in the Cash Collateral Account and apply
the
same in accordance with the terms of Sections 3.6(c) and 3.6(f) of the
Intercreditor Agreement, (b) no portion of such amount shall be applied by
the
Borrower for any other purpose and (c) no portion of such amount until so
applied shall be commingled with other funds held by the Borrower.
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A)
the
making of the Downgrade Advance as requested by this Notice of Borrowing shall
automatically and irrevocably terminate the obligation of the Liquidity Provider
to make further Advances under the Liquidity Agreement; and (B) following the
making by the Liquidity Provider of the Downgrade Advance requested by this
Notice of Borrowing, the Borrower shall not be entitled to request any further
Advances under the Liquidity Agreement.
IN
WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as
Subordination
Agent, as Borrower
By:___________________________________
Name:
Title:
SCHEDULE
I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert
copy of computations in accordance with Downgrade Advance Notice of
Borrowing]
Annex
V to
Revolving
Credit Agreement
FINAL
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
"Borrower"),
hereby certifies to Landesbank Baden-Württemberg (the "Liquidity
Provider"),
with
reference to the Revolving Credit Agreement (2005-ERJ1) dated as of
September 22, 2005, between the Borrower and the Liquidity Provider (the
"Liquidity
Agreement";
the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The
Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The
Borrower is delivering this Notice of Borrowing for the making of the Final
Advance by the Liquidity Provider to be used for the funding of the Cash
Collateral Account in accordance with Section 3.6(i) of the Intercreditor
Agreement by reason of the receipt by the Borrower of a Termination Notice
from
the Liquidity Provider with respect to the Liquidity Agreement, which Advance
is
requested to be made on ____________, ____. The Final Advance should be
transferred to [name of bank/wire instructions/ABA number] in favor of account
number [ __ ], reference [ __ ].
(3) The
amount of the Final Advance requested hereby (i) is $_________________.__,
which
equals the Maximum Available Commitment on the date hereof and is to be applied
in respect of the funding of the Cash Collateral Account in accordance with
Sections 3.6(f) and 3.6(i) of the Intercreditor Agreement, (ii) does not include
any amount with respect to the payment of principal of, or premium on, the
Certificates, (iii) was computed in accordance with the provisions of the
Certificates, the Trust Agreement and the Intercreditor Agreement (a copy of
which computation is attached hereto as Schedule I), and (iv) has not been
and
is not the subject of a prior or contemporaneous Notice of
Borrowing.
(4) Upon
receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the
Borrower will deposit such amount in the Cash Collateral Account and apply
the
same in accordance with the terms of Sections 3.6(f) and 3.6(i) of the
Intercreditor Agreement, (b) no portion of such amount shall be applied by
the
Borrower for any other purpose and (c) no portion of such amount until so
applied shall be commingled with other funds held by the Borrower.
(5)
The
Borrower hereby requests that the Advance requested hereby be a Base Rate
Advance [and that such Base Rate Advance be converted into a LIBOR Advance
on
the third London/Stuttgart Business Day following your receipt of this
notice.]1
___________________
1
Bracketed language may be included at Borrower's option.
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A)
the
making of the Final Advance as requested by this Notice of Borrowing shall
automatically and irrevocably terminate the obligation of the Liquidity Provider
to make further Advances under the Liquidity Agreement; and (B) following the
making by the Liquidity Provider of the Final Advance requested by this Notice
of Borrowing, the Borrower shall not be entitled to request any further Advances
under the Liquidity Agreement.
IN
WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
WILMINGTON
TRUST COMPANY,
not
in its
individual capacity but solely as
Subordination
Agent, as Borrower
By___________________________________
Name:
Title:
SCHEDULE
I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert
copy of computations in accordance with Final Advance Notice of
Borrowing]
Annex
VI to
Revolving
Credit Agreement
NOTICE
OF
TERMINATION
[Date]
Wilmington
Trust Company,
as
Subordination Agent, as Borrower
[▇▇▇▇▇▇
Square North
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Corporate Trust Administration]
Revolving
Credit Agreement dated as of September 22, 2005, between Wilmington Trust
Company, as Subordination Agent, as agent and trustee for the Continental
Airlines Pass Through Trust 2005-ERJ1, as Borrower, and Landesbank
Baden-Württemberg (the "Liquidity
Agreement")
Ladies
and Gentlemen:
You
are
hereby notified that, pursuant to Section 6.01 of the Liquidity Agreement,
by
reason of the occurrence of a Liquidity Event of Default and the existence
of a
Performing Note Deficiency (each as defined therein), we are giving this notice
to you in order to cause (i) our obligations to make Advances (as defined
therein) under such Liquidity Agreement to terminate on the fifth Business
Day
after the date on which you receive this notice and (ii) you to request a Final
Advance under the Liquidity Agreement pursuant to Section 3.6(i) of the
Intercreditor Agreement (as defined in the Liquidity Agreement) as a consequence
of your receipt of this notice.
THIS
NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR UNDER THE LIQUIDITY
AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY AGREEMENT WILL
TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU RECEIVE THIS
NOTICE.
Very
truly yours,
LANDESBANK
BADEN-WÜRTTEMBERG,
as
Liquidity Provider
By_________________________________
Name:
Title:
cc:
Wilmington Trust Company,
as
Trustee
Annex
VII to
Revolving
Credit Agreement
NOTICE
OF
REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving
Credit Agreement dated as of September 22, 2005, between Wilmington Trust
Company, as Subordination Agent, as agent and trustee for the Continental
Airlines Pass Through Trust, 2005-ERJ1, as Borrower, and Landesbank
Baden-Württemberg (the "Liquidity
Agreement")
Ladies
and Gentlemen:
For
value
received, the undersigned beneficiary hereby irrevocably transfers
to:
______________________________
[Name
of
Transferee]
______________________________
[Address
of Transferee]
all
rights and obligations of the undersigned as Borrower under the Liquidity
Agreement referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the first
paragraph of the Liquidity Agreement, pursuant to the terms of Section 8.1
of
the Intercreditor Agreement.
By
this
transfer, all rights of the undersigned as Borrower under the Liquidity
Agreement are transferred to the transferee and the transferee shall hereafter
have the sole rights and obligations as Borrower thereunder. The undersigned
shall pay any costs and expenses of such transfer, including, but not limited
to, transfer taxes or governmental charges.
We
ask
that this transfer be effective as of __________, ____.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as
Subordination
Agent, as Borrower
By___________________________________
Name:
Title:
Annex
VIII to
Revolving
Credit Agreement
SPECIAL
TERMINATION ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
"Borrower"),
hereby certifies to Landesbank Baden-Württemberg (the "Liquidity
Provider"),
with
reference to the Revolving Credit Agreement (2005-ERJ1) dated as of
September 22, 2005, between the Borrower and the Liquidity Provider (the
"Liquidity
Agreement";
the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The
Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The
Borrower is delivering this Notice of Borrowing for the making of the Special
Termination Advance by the Liquidity Provider to be used for the funding of
the
Cash Collateral Account in accordance with Section 3.6(k) of the Intercreditor
Agreement by reason of the receipt by the Borrower of a Special Termination
Notice from the Liquidity Provider with respect to the Liquidity Agreement,
which Advance is requested to be made on ____________, ____. The Special
Termination Advance should be transferred to [name of bank/wire instructions/ABA
number] in favor of account number [ __ ], reference [ __ ].
(3) The
amount of the Special Termination Advance requested hereby (i) is
$_________________.__, which equals the Maximum Available Commitment on the
date
hereof and is to be applied in respect of the funding of the Cash Collateral
Account in accordance with Sections 3.6(f) and 3.6(k) of the Intercreditor
Agreement, (ii) does not include any amount with respect to the payment of
principal of, or premium on, the Certificates, (iii) was computed in accordance
with the provisions of the Certificates, the Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I), and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon
receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the
Borrower will deposit such amount in the Cash Collateral Account and apply
the
same in accordance with the terms of Sections 3.6(f) and 3.6(k) of the
Intercreditor Agreement, (b) no portion of such amount shall be applied by
the
Borrower for any other purpose and (c) no portion of such amount until so
applied shall be commingled with other funds held by the Borrower.
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A)
the
making of the Special Termination Advance as requested by this Notice of
Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement;
and
(B) following the making by the Liquidity Provider of the Special Termination
Advance requested by this Notice of Borrowing, the Borrower shall not be
entitled to request any further Advances under the Liquidity
Agreement.
IN
WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as
Subordination
Agent, as Borrower
By___________________________________
Name:
Title:
SCHEDULE
I TO SPECIAL TERMINATION ADVANCE NOTICE OF BORROWING
[Insert
copy of computations in accordance with Special Termination Advance Notice
of
Borrowing]
Annex
IX to
Revolving
Credit Agreement
NOTICE
OF
SPECIAL TERMINATION
[Date]
Wilmington
Trust Company,
as
Subordination Agent, as Borrower
[▇▇▇▇▇▇
Square North
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Corporate Trust Administration]
Revolving
Credit Agreement dated as of September 22, 2005, between Wilmington Trust
Company, as Subordination Agent, as agent and trustee for the Continental
Airlines Pass Through Trust 2005-ERJ1, as Borrower, and Landesbank
▇▇▇▇▇-▇▇;rttemberg (the "Liquidity
Agreement")
Ladies
and Gentlemen:
You
are
hereby notified that, pursuant to Section 6.02 of the Liquidity Agreement,
by
reason of the aggregate Pool Balance of the Certificates exceeding the aggregate
outstanding principal amount of the Equipment Notes (other than any Equipment
Notes previously sold or with respect to which the collateral securing such
Equipment Notes has been disposed of) during the 18-month period prior to April
1, 2021, we are giving this notice to you in order to cause (i) our obligations
to make Advances under such Liquidity Agreement to terminate on the fifth
Business Day after the date on which you receive this notice and (ii) you to
request a Special Termination Advance under the Liquidity Agreement pursuant
to
Section 3.6(k) of the Intercreditor Agreement as a consequence of your receipt
of this notice.
Terms
used but not defined herein shall have the respective meanings ascribed thereto
in or pursuant to the Liquidity Agreement.
THIS
NOTICE IS THE "NOTICE OF SPECIAL TERMINATION" PROVIDED FOR UNDER THE LIQUIDITY
AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY AGREEMENT WILL
TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU RECEIVE THIS
NOTICE.
Very
truly yours,
LANDESBANK
BADEN-WÜRTTEMBERG,
as
Liquidity Provider
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
cc:
Wilmington Trust Company,
as
Trustee
IX-2