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EXHIBIT 4.15
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REVOLVING CREDIT AGREEMENT
(1997-1C-II)
Dated as of March 21, 1997
between
WILMINGTON TRUST COMPANY,
as Subordination Agent,
as agent and trustee for the
Continental Airlines Pass Through Trust 1997-1C-II-O
as Borrower
and
ABN AMRO BANK N.V., CHICAGO BRANCH
as Liquidity Provider
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Relating to
Continental Airlines Pass Through Trust 1997-1C-II-O
7.42% Continental Airlines Pass Through Certificates,
Series 1997-1C-II-O
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.02. Making the Advances . . . . . . . . . . . . . . . . . . . . . 9
Section 2.03. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.04. Adjustments or Termination of the Maximum Commitment . . . . . 12
Section 2.05. Repayments of Interest Advances or the Final Advance . . . . . 12
Section 2.06. Repayments of Provider Advances . . . . . . . . . . . . . . . 13
Section 2.07. Payments to the Liquidity Provider Under the Intercreditor
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.08. Book Entries . .
Section 2.09. Payments from Available Funds Only . . . . . . . . . . . . . . 15
Section 2.10. Extension of the Expiry Date; Non-Extension Advance . . . . . 16
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.02. Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . 17
Section 3.03. Payments Free of Deductions . . . . . . . . . . . . . . . . . 18
Section 3.04. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 3.05. Computations . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 3.06. Payment on Non-Business Days . . . . . . . . . . . . . . . . . 19
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TABLE OF CONTENTS
(Continued)
Page
Section 3.07. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 3.08. Replacement of Borrower . . . . . . . . . . . . . . . . . . . . 21
Section 3.09. Funding Loss Indemnification . . . . . . . . . . . . . . . . . . 22
Section 3.10. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01 . . . . . 23
Section 4.02. Conditions Precedent to Borrowing . . . . . . . . . . . . . . . 25
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower . . . . . . . . . . . . . 25
Section 5.02. Negative Covenants of the Borrower . . . . . . . . . . . . . . . 26
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default . . . . . . . . . . . . . . . . . . 26
ARTICLE VII
MISCELLANEOUS
Section 7.01. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7.02. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7.03. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.04. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.05. Indemnification; Survival of Certain Provisions . . . . . . . . 28
Section 7.06. Liability of the Liquidity Provider . . . . . . . . . . . . . . 29
Section 7.07. Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . . 29
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TABLE OF CONTENTS
(Continued)
Page
Section 7.08. Binding Effect; Participations . . . . . . . . . . . . 30
Section 7.09. Severability . . . . . . . . . . . . . . . . . . . . . 32
Section 7.10. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . 32
Section 7.11. Submission to Jurisdiction; Waiver
of Jury Trial; Waiver of Immunity . . . . . . . . . 32
Section 7.12. Execution in Counterparts . . . . . . . . . . . . . . 34
Section 7.13. Entirety . . . . . . . . . . . . . . . . . . . . . . . 34
Section 7.14. Headings . . . . . . . . . . . . . . . . . . . . . . . 34
Section 7.15. Transfer . . . . . . . . . . . . . . . . . . . . . . . 34
Section 7.16. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES . . . 34
ANNEX I Interest Advance Notice of Borrowing
ANNEX II Non-Extension Advance Notice of Borrowing
ANNEX III Downgrade Advance Notice of Borrowing
ANNEX IV Final Advance Notice of Borrowing
ANNEX V Notice of Termination
ANNEX VI Notice of Replacement Subordination Agent
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REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT dated as of March 21, 1997,
between WILMINGTON TRUST COMPANY, a Delaware corporation, not in its individual
capacity but solely as Subordination Agent under the Intercreditor Agreement
(each as defined below), as agent and trustee for the Class C-II Trust (as
defined below) (the "Borrower"), and ABN AMRO BANK N.V., a bank organized under
the laws of The Netherlands, acting through its Chicago Branch ("ABN AMRO" or
the "Liquidity Provider").
W I T N E S S E T H:
WHEREAS, pursuant to the Class C-II Trust Agreement (such term
and all other capitalized terms used in these recitals having the meanings set
forth or referred to in Section 1.01), the Class C-II Trust is issuing the
Class C-II Certificates; and
WHEREAS, the Borrower, in order to support the timely payment
of a portion of the interest on the Class C-II 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 premises, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. (a) Definitions. As used
in this Agreement and unless otherwise expressly indicated, or unless the
context clearly requires otherwise, the following capitalized terms shall have
the following respective meanings for all purposes of this Agreement:
"Additional Cost" has the meaning assigned to such term in
Section 3.01.
"Advance" means an Interest Advance, a Final Advance, a
Provider Advance, an Applied Provider Advance or an Unpaid Advance, as
the case may be.
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"Applicable Liquidity Rate" has the meaning assigned to such
term in Section 3.07(g).
"Applicable Margin" means (w) with respect to any Unpaid
Advance or Applied Provider Advance that is a LIBOR Advance, 1.75%,
(x) with respect to any Unpaid Advance or Applied Provider Advance
that is a Base Rate Advance, 1.75%, (y) with respect to any Unapplied
Provider Advance that is a LIBOR Advance, .40% and (z) with respect
to any Unapplied Provider Advance that is a Base Rate Advance, .40%.
"Applied Downgrade Advance" has the meaning assigned to such
term in Section 2.06(a).
"Applied Non-Extension Advance" has the meaning assigned to
such term in Section 2.06(a).
"Applied Provider Advance" has the meaning assigned to such
term in Section 2.06(a).
"Assignment and Assumption Agreement" means the Assignment and
Assumption to be entered into between the Borrower and the trustee of
the Successor Trust, substantially in the form of Exhibit D to the
Class C-II Trust Agreement.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to (a) the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such day
is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or if such rate is not so published
for any day that is a Business Day, the average of the quotations for
such day for such transactions received by the Liquidity Provider from
three Federal funds brokers of recognized standing selected by it,
plus (b) one-quarter of one percent (1/4 or 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.
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"Borrowing" means the making of Advances requested by delivery
of a Notice of Borrowing.
"Business Day" means any day other than a Saturday or Sunday
or a day on which commercial banks are required or authorized to close
in Houston, Texas, New York, New York, Chicago, Illinois or, so long
as any Class C-II Certificate is outstanding, the city and state in
which the Class C-II Trustee, the Borrower or any Loan Trustee
maintains its Corporate Trust Office or receives or disburses funds,
and, if the applicable Business Day relates to any Advance or other
amount bearing interest based on the LIBOR Rate, on which dealings are
carried on in the London interbank market.
"Certificates of Deposit" has the meaning assigned to such
term in the Deposit Agreement.
"Deposits" has the meaning assigned to such terms in the
Deposit Agreement.
"Depositary" has the meaning assigned to such term in the
Deposit Agreement.
"Deposit Agreement" means the Deposit Agreement dated March
21, 1997 between First Security Bank, National Association, as Escrow
Agent and Credit Suisse First Boston, as Depositary, pertaining to the
Class C- II Certificates, as the same may be amended, modified or
supplemented from time to time in accordance with the terms thereof.
"Downgrade Advance" means an Advance made pursuant to Section
2.02(c).
"Effective Date" has the meaning specified in Section 4.01.
The delivery of the certificate of the Liquidity Provider contemplated
by Section 4.01(e) shall be conclusive evidence that the Effective
Date has occurred.
"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.
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"Excluded Taxes" means (i) taxes imposed on the overall net
income of the Liquidity Provider or of its Lending Office by the
jurisdiction where such Liquidity Provider's principal office or such
Lending Office is located, and (ii) Excluded Withholding Taxes.
"Excluded Withholding Taxes" means (i) withholding Taxes
imposed by the United States except to the extent that such United
States withholding Taxes are imposed as a result of any change in
applicable law after the date hereof (excluding from change in
applicable law for this purpose a change in an applicable treaty or
other change in law affecting the applicability of a treaty), or in
the case of a successor Liquidity Provider (including a transferee of
an Advance) or Lending Office, after the date on which such successor
Liquidity Provider obtains its interest or on which the Lending Office
is changed, and (ii) any withholding Taxes imposed by the United
States which are imposed or increased as a result of the Liquidity
Provider failing to deliver to the Borrower any certificate or
document (which certificate or document in the good faith judgment of
the Liquidity Provider it is legally entitled to provide) which is
reasonably requested by the Borrower to establish that payments under
this Agreement are exempt from (or entitled to a reduced rate of)
withholding Tax.
"Expiry Date" means March 19, 1998, initially, or any date to
which the Expiry Date is extended pursuant to Section 2.10.
"Final Advance" means an Advance made pursuant to Section
2.02(d).
"Intercreditor Agreement" means the Intercreditor Agreement
dated the date hereof, among the Trustees, the Liquidity Provider, the
liquidity provider under each Liquidity Facility (other than this
Agreement) 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:
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(i) the period beginning on the third Business Day
following the Liquidity Provider's receipt of the
Notice of Borrowing for such LIBOR Advance (or, in
the case of an Unapplied Downgrade Advance, the
period beginning on the Expiry Date) and ending on
the next Regular Distribution Date; and
(ii) each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending
on the next Regular Distribution Date;
provided, however, that (I) if an Unapplied Provider Advance which is
a LIBOR Advance becomes an Applied Provider Advance, the Interest
Period then applicable to such Unapplied Provider Advance shall be
applicable to such Applied Provider Advance and (II) if (x) the Final
Advance shall have been made, or (y) other outstanding Advances shall
have been converted into the Final Advance, then the Interest Periods
shall be successive periods of one month beginning on the third
Business Day following the Liquidity Provider's receipt of the Notice
of Borrowing for such Final Advance (in the case of clause (x) above)
or the Regular Distribution Date following such conversion (in the
case of clause (y) above).
"Lending Office" means the lending office of the Liquidity
Provider presently located at Chicago, Illinois, 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 a Lending Office
outside the United States of America except in accordance with Section
3.01, 3.02 or 3.03 hereof.
"LIBOR Advance" means an Advance bearing interest at a rate
based upon the LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period, the
average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the rates per annum at which deposits in dollars are offered to
major banks in the London interbank market at approximately 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period in an amount approximately equal to the principal amount of the
Advance to which such Interest Period is to
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apply and for a period of time comparable to such Interest Period.
Liquidity Event of Default" means the occurrence of either (a)
the acceleration of all of the Equipment Notes (provided that, with
respect to the period prior to the Delivery Period Expiry Date, such
Equipment Notes have an aggregate outstanding principal balance in
excess of $280,000,000) 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), inclusive.
"Liquidity Provider" has the meaning assigned to such term in
the recital of parties to this Agreement.
"Maximum Available Commitment" shall mean, subject to the
proviso contained in the third sentence of Section 2.02(a), at any
time of determination, (a) the Maximum Commitment at such time less
(b) the aggregate amount of each Interest Advance outstanding at such
time; provided that following a Provider Advance or a Final Advance,
the Maximum Available Commitment shall be zero.
"Maximum Commitment" means, for any day, the lesser of (x)
$605,000.00 and (y) the Stated Portion of the Required Amount on such
day.
"Non-Extension Advance" means an Advance made pursuant to
Section 2.02(b).
"Notice of Borrowing" has the meaning specified in Section
2.02(e).
"Notice of Replacement Subordination Agent" has the meaning
specified in Section 3.08.
"Offering Memorandum" means the Offering Memorandum dated
March 12, 1997 relating to the Certificates, as such Offering
Memorandum may be amended or supplemented.
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"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.
"Provider Advance" means a Downgrade Advance or a
Non-Extension Advance.
"Regulatory Change" has the meaning assigned to such term in
Section 3.01.
"Replenishment Amount" has the meaning assigned to such term
in Section 2.06(b).
"Required Amount" means, for any day, the sum of the aggregate
amount of interest, calculated at the rate per annum equal to the
Stated Interest Rate for the Class C-II Certificates, that would be
payable on the Class C-II Certificates on each of the three successive
semiannual Regular Distribution Dates immediately following such day
or, if such day is a Regular Distribution Date, on such day and the
succeeding two semiannual Regular Distribution Dates, in each case
calculated on the basis of the Pool Balance of the Class C- II
Certificates on such day and without regard to expected future
payments of principal on the Class C-II Certificates.
"Stated Portion" means 50%.
"Successor Trust" means Continental Airlines Pass Through
Trust 1997-1C-II-S.
"Tax Letter" means the letter dated the date hereof between
the Liquidity Provider and Continental pertaining to this Agreement.
"Termination Date" means the earliest to occur of the
following: (i) the Expiry Date; (ii) the date on which the Borrower
delivers to the Liquidity Provider a certificate, signed by a
Responsible Officer of the Borrower, certifying that all of the Class
C-II Certificates have been paid in full (or provision has been made
for such payment in accordance with the Intercreditor Agreement and
the Trust Agreements) or are otherwise no longer entitled to the
benefits of this Agreement; (iii) the date on which the Borrower
delivers to the Liquidity Provider a certificate, signed by a
Responsible Officer of the Borrower, certifying
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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 from the Liquidity Provider pursuant
to Section 6.01 hereof; and (v) the date on which no Advance is or may
(including by reason of reinstatement as herein provided) become
available for a Borrowing hereunder.
"Termination Notice" means the Notice of Termination
substantially in the form of Annex V to this Agreement.
"Transferee" has the meaning assigned to such term in Section
7.08(b).
"Unapplied Downgrade Advance" means any Downgrade Advance
other than an Applied Downgrade Advance.
"Unapplied Provider Advance" means any Provider Advance other
than an Applied Provider Advance.
"Unpaid Advance" has the meaning assigned to such term in
Section 2.05.
(b) Terms Defined in the Intercreditor Agreement. For all
purposes of this Agreement, the following terms shall have the respective
meanings assigned to such terms in the Intercreditor Agreement:
"ABN AMRO Fee Letter", "ABN AMRO Sub-Account", "Certificates", "Class
A Certificates", "Class B Certificates", "Class C-I Certificates",
"Class C-II Cash Collateral Account", "Class C-II Certificateholders",
"Class C-II Certificates", "Class C-II Trust", "Class C-II Trust
Agreement", "Class C-II Trustee", "Closing Date", "Continental",
"Continental Bankruptcy Event", "Controlling Party", "Corporate Trust
Office", "Delivery Period Expiry Date", "Distribution Date",
"Downgraded Facility", "Equipment Notes", "Financing Agreement",
"Indenture", "Initial Purchasers", "Investment Earnings", "Liquidity
Facility", "Loan Trustee", "▇▇▇▇▇'▇", "Non-Extended Facility", "Note
Purchase Agreement", "Operative Agreements", "Performing Equipment
Note", "Person", "Pool Balance", "Purchase Agreement", "Rating
Agency", "Registration Rights Agreement", "Regular Distribution Date,
"Replacement Liquidity Facility", "Responsible Officer",
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"Scheduled Payment", "Special Payment", "Standard & Poor's", "Stated
Interest Rate", "Sub-Account", "Subordination Agent", "Taxes",
"Threshold Rating", "Transfer", "Trust Agreements, "Trustee" and
"Written Notice".
(c) Interest on Certificates. For all purposes of this
Agreement, each scheduled payment with respect to a Class C-II Certificate
shall be deemed to be comprised of interest and principal components, with the
interest component equaling interest accrued at the Stated Interest Rate for
the Class C-II Certificates from (i) the later of (x) the date of issuance
thereof and (y) the most recent but preceding Regular Distribution Date to (ii)
the Regular Distribution Date on which such Scheduled Payment is being made,
such interest to be considered payable in arrears on such Regular Distribution
Date and to be calculated and allocated in the same manner as interest on the
Class C-II Equipment Notes.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances. The Liquidity Provider hereby
irrevocably agrees, on the terms and conditions hereinafter set forth, to make
Advances to the Borrower from time to time on any Business Day during the
period from the Effective Date until 12:00 Noon (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 the Stated Portion of interest on the
Class C-II Certificates at the Stated Interest Rate therefor in accordance with
Section 3.6(a) of the Intercreditor Agreement. Each Interest Advance made
hereunder shall automatically reduce the Maximum Available Commitment and the
amount available to be borrowed hereunder by subsequent Advances by the amount
of such Interest Advance
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(subject to reinstatement as provided in the next sentence). Upon repayment to
the Liquidity Provider in full of the amount of any Interest Advance made
pursuant to this Section 2.02(a), together with accrued interest thereon (as
provided herein), the Maximum Available Commitment shall be reinstated by the
amount of such repaid Interest Advance, but not to exceed the Maximum
Commitment; provided, however, that the Maximum Available Commitment shall not
be so reinstated at any time if (i) a Liquidity Event of Default shall have
occurred and be continuing and (ii) there is a Performing Note Deficiency.
(b) A Non-Extension Advance shall be made in a single
Borrowing if this Agreement is not extended in accordance with Section 3.6(d)
of the Intercreditor Agreement (unless a Replacement Liquidity Facility to
replace this Agreement shall have been delivered to the Borrower in accordance
with said 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 ABN AMRO Sub-Account of the Class C-II Cash Collateral Account in
accordance with said Section 3.6(d).
(c) A Downgrade Advance shall be made in a single
Borrowing upon a downgrading of the Liquidity Provider's short-term unsecured
debt rating issued by either Rating Agency below the Threshold Rating (as
provided for in Section 3.6(c) of the Intercreditor Agreement) unless a
Replacement Liquidity Facility to replace this Agreement shall have been
delivered to the Borrower in accordance with said Section 3.6(c), by delivery
to the Liquidity Provider of a written and completed Notice of Borrowing in
substantially the form of Annex III attached hereto, signed by a Responsible
Officer of the Borrower, in an amount equal to the Maximum Available Commitment
at such time, and shall be used to fund the ABN AMRO Sub-Account of the Class
C-II Cash Collateral Account in accordance with said Section 3.6(c).
(d) A Final Advance shall be made in a single Borrowing
upon the receipt by the Borrower of a Termination Notice from the Liquidity
Provider pursuant to Section 6.01 hereof by delivery to the Liquidity Provider
of a written and completed Notice of Borrowing in substantially the form of
Annex IV attached hereto, signed by a Responsible Officer of the Borrower, in
an amount equal to the Maximum Available Commitment at such time, and shall be
used to fund the ABN AMRO Sub-Account
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of the Class C-II Cash Collateral Account (in accordance with Section 3.6(i) of
the Intercreditor Agreement).
(e) Each Borrowing shall be made on notice in writing (a
"Notice of Borrowing") in substantially the form required by Section 2.02(a),
2.02(b), 2.02(c) or 2.02(d), as the case may be, given by the Borrower to the
Liquidity Provider. If a Notice of Borrowing is delivered by the Borrower in
respect of any Borrowing no later than 12:00 Noon (New York City time) on a
Business Day, the Liquidity Provider shall, upon satisfaction of the conditions
precedent set forth in Section 4.02 with respect to a requested Borrowing,
before 12:00 Noon (New York City time) on the first Business Day next following
the day of receipt of such Notice of Borrowing or on such later Business Day
specified in such Notice of Borrowing, make available to the Borrower, in
accordance with its payment instructions, in U.S. dollars and immediately
available funds, the amount of such Borrowing. If a Notice of Borrowing is
delivered by the Borrower in respect of any Borrowing after 12:00 Noon (New
York City time) on a Business Day, the Liquidity Provider shall, upon
satisfaction of the conditions precedent set forth in Section 4.02 with respect
to a requested Borrowing, before 12:00 Noon (New York City time) on the second
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, make available to the Borrower, in accordance with its payment
instructions, in U.S. dollars and in immediately available funds, the amount of
such 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.
(f) Upon the making of any Advance requested pursuant to
a Notice of Borrowing, in accordance with the Borrower's payment instructions,
the Liquidity Provider shall be fully discharged of its obligation hereunder
with respect to such Notice of Borrowing, and the Liquidity Provider shall not
thereafter be obligated to make any further Advances hereunder in respect of
such Notice of Borrowing to the Borrower or to any other Person. Following the
making of any Advance pursuant to Section 2.02(b), (c) or (d) hereof to fund
the ABN AMRO Sub-Account of the Class C-II Cash Collateral Account, the
Liquidity Provider shall have no interest in or rights to the Class C-II
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Cash Collateral Account, any Sub-Account thereof, such Advance or any other
amounts from time to time on deposit in the Class C-II Cash Collateral Account
or any Sub-Account thereof; provided that the foregoing shall not affect or
impair the obligations of the Subordination Agent to make the distributions
contemplated by Section 3.6(e) or (f) 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 ABN AMRO Fee Letter.
Section 2.04. Adjustments or Termination of the Maximum
Commitment. (a) Automatic Adjustments. Promptly following each date on which
the Required Amount is (1) reduced as a result of a reduction in the Pool
Balance of the Class C-II Certificates or otherwise, (2) increased as a result
of an increase in the Stated Interest Rate or (3) subsequent to such an
increase described in clause (2), reduced pursuant to the definition of "Stated
Interest Rate", clause (y) of the definition of Maximum Commitment shall
automatically be reduced or increased, as the case may be, to an amount equal
to the Stated Portion of the Required Amount (as calculated by the Borrower).
The Borrower shall give notice of any such automatic reduction or increase 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 or increase of the Maximum Commitment.
(b) Termination. Upon the making of any Provider Advance
or Final Advance hereunder or the occurrence of the Termination Date, the
obligation of the Liquidity Provider to make further Advances hereunder shall
automatically and irrevocably terminate, and the Borrower shall not be entitled
to request any further Borrowing hereunder.
Section 2.05. Repayments of Interest Advances or the Final
Advance. Subject to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby
agrees, without notice of an Advance or demand for repayment from the Liquidity
Provider (which notice and demand are hereby waived by the Borrower), to pay,
or to cause to be paid, to the Liquidity Provider on each date on which the
Liquidity Provider shall make an Interest Advance or the
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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 Non-Extended Facility at any
time when unreimbursed Interest Advances have reduced the Maximum Available
Commitment to zero, then such Interest Advances shall cease to constitute
Unpaid Advances and shall be deemed to have been changed into an Applied
Downgrade Advance or an Applied Non-Extension Advance, as the case may be, for
all purposes of this Agreement (including, without limitation, for the purpose
of determining when such Interest Advance is required to be repaid to the
Liquidity Provider in accordance with Section 2.06 and for the purposes of
Section 2.06(b)). The Borrower and the Liquidity Provider agree that the
repayment in full of each Interest Advance and Final Advance on the date such
Advance is made is intended to be a contemporaneous exchange for new value
given to the Borrower by the Liquidity Provider.
Section 2.06. Repayments of Provider Advances. (a) Amounts
advanced hereunder in respect of a Provider Advance shall be deposited in the
ABN AMRO Sub-Account of the Class C-II Cash Collateral Account, invested and
withdrawn from the ABN AMRO Sub-Account of the Class C-II Cash Collateral
Account as set forth in Sections 3.6(c), (d) and (f) of the Intercreditor
Agreement. The Borrower agrees to pay to the Liquidity Provider, on each
Regular Distribution Date, commencing on the first Regular Distribution Date
after the making of a Provider Advance, interest on the principal amount of any
such Provider Advance as provided in Section 3.07; provided, however, that
amounts in respect of a Provider Advance withdrawn from the ABN AMRO
Sub-Account of the Class C-II Cash Collateral Account for the purpose of paying
interest on the Class C-II Certificates in accordance with Section 3.6(f) of
the Intercreditor Agreement (the amount of any such withdrawal being (y) in the
case of a Downgrade Advance, an "Applied Downgrade Advance" and (z) in the case
of a Non-Extension Advance, an "Applied Non-Extension Advance" and, together
with an Applied Downgrade Advance, an "Applied Provider Advance") shall
thereafter (subject to Section 2.06(b)) be treated as an Interest Advance under
this Agreement for purposes of determining the Applicable Liquidity Rate for
interest payable
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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. Subject to Sections
2.07 and 2.09 hereof, immediately upon the withdrawal of any amounts from the
ABN AMRO Sub- Account of the Class C-II Cash Collateral Account on account of a
reduction in the Required Amount, the Borrower shall repay to the Liquidity
Provider a portion of the Provider Advances in a principal amount equal to the
Stated Portion of 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 ABN AMRO Sub-Account
of the Class C-II 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
Stated Portion of 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 ABN AMRO
Sub-Account of the Class C-II Cash Collateral Account after giving effect to
any Applied Provider Advance on the date of such replacement shall be
reimbursed to the Liquidity Provider, but only to the extent such amounts are
necessary to repay in full to the Liquidity Provider all amounts owing to it
hereunder.
Section 2.07. Payments to the Liquidity Provider Under the
Intercreditor Agreement. In order to provide for payment or repayment to the
Liquidity Provider of any amounts hereunder, the Intercreditor Agreement
provides that amounts available and
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referred to in Articles II and III of the Intercreditor Agreement, to the
extent payable to the Liquidity Provider pursuant to the terms of the
Intercreditor Agreement (including, without limitation, Section 3.6(f) of the
Intercreditor Agreement), shall be paid to the Liquidity Provider in accordance
with the terms thereof. Amounts so paid to the Liquidity Provider shall be
applied by the Liquidity Provider to Liquidity Obligations then due and payable
in such manner as it 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
Stated Portion of amounts that constitute Scheduled Payments, Special Payments
or payments under Section 9.1 of the Participation Agreements and Sections 6
and 7 of the Note Purchase Agreement and only to the extent that the Borrower
shall have sufficient income or proceeds therefrom to enable the Borrower to
make payments in accordance with the terms hereof after giving effect to the
priority of payments provisions set forth in the Intercreditor Agreement. The
Liquidity Provider agrees that it will look solely to such amounts to the
extent available for distribution to it as provided in the Intercreditor
Agreement and this Agreement and that the Borrower, in its individual capacity,
is not personally liable to it for any amounts payable or liability under this
Agreement except as expressly provided in this Agreement, the Intercreditor
Agreement or any Participation Agreement. Amounts on deposit in the ABN AMRO
Sub-Account of the Class C-II Cash Collateral Account shall be available to the
Borrower to make payments under this Agreement only to the extent and for the
purposes expressly contemplated in Section 3.6(f) of the Intercreditor
Agreement. Amounts on deposit in the other Sub-Account in respect of the Class
C-II Certificates shall not be available to make payments under this Agreement.
Section 2.10. Extension of the Expiry Date; Non-Extension
Advance. No earlier than the 60th day and no later
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than the 40th day prior to the then effective Expiry Date (unless such Expiry
Date is on or after the date that is 15 days after the Final Maturity Date for
the Class C-II Certificates), the Borrower shall request that the Liquidity
Provider extend the Expiry Date for a period of 364 days after the then
effective Expiry Date (unless the obligations of the Liquidity Provider are
earlier terminated in accordance with the terms hereof). The Liquidity Provider
shall advise the Borrower, no earlier than 40 days and no later than 25 days
prior to the then effective Expiry Date, whether, in its sole discretion, it
agrees to so extend the Expiry Date. If the Liquidity Provider advises the
Borrower on or before the 25th day prior to the Expiry Date then in effect that
such Expiry Date shall not be so extended, or fails to irrevocably and
unconditionally advise the Borrower on or before the 25th day prior to the
Expiry Date then in effect that such Expiry Date shall be so extended (and, in
each case, if the Liquidity Provider shall not have been replaced in accordance
with Section 3.6(e) of the Intercreditor Agreement), the Borrower shall be
entitled on and after such 25th day (but prior to the then effective Expiry
Date) to request a Non-Extension Advance in accordance with Section 2.02(b)
hereof and Section 3.6(d) of the Intercreditor Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs. Subject to the ABN AMRO Fee
Letter, the Borrower shall pay to the Liquidity Provider from time to time such
amounts as may be necessary to compensate the Liquidity Provider for any
increased costs incurred by the Liquidity Provider which are attributable to
its making or maintaining any LIBOR Advances hereunder or its obligation to
make any such Advances hereunder, or any reduction in any amount receivable by
the Liquidity Provider under this Agreement or the Intercreditor Agreement in
respect of any such Advances or such obligation (such increases in costs and
reductions in amounts receivable being herein called "Additional Costs"),
resulting from any change after the date of this Agreement in U.S. federal,
state, municipal, or foreign laws or regulations (including Regulation D), or
the adoption or making after the date of this Agreement of any interpretations,
directives, or requirements applying to a class of banks including the
Liquidity Provider under any U.S. federal, state, municipal, or any foreign
laws or regulations (whether or not having the force of law) by any court,
central bank or monetary authority charged with the
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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 (other than Excluded
Taxes); or (2) imposes or modifies any reserve, special deposit, compulsory
loan or similar requirements relating to any extensions of credit or other
assets of, or any deposits with other liabilities of, the Liquidity Provider
(including any such Advances or any deposits referred to in the definition of
LIBOR Rate or related definitions). The Liquidity Provider agrees to use
reasonable efforts (consistent with applicable legal and regulatory
restrictions) to change the jurisdiction of its Lending Office if making such
change would avoid the need for, or reduce the amount of, any amount payable
under this Section that may thereafter accrue and would not, in the reasonable
judgment of the Liquidity Provider, be otherwise disadvantageous to the
Liquidity Provider.
The Liquidity Provider will notify the Borrower of any event
occurring after the date of this Agreement that will entitle the Liquidity
Provider to compensation pursuant to this Section 3.01 as promptly as
practicable after it obtains knowledge thereof and determines to request such
compensation, which notice shall describe in reasonable detail the calculation
of the amounts owed under this Section. Determinations by the Liquidity
Provider for purposes of this Section 3.01 of the effect of any Regulatory
Change on its costs of making or maintaining Advances or on amounts receivable
by it in respect of Advances, and of the additional amounts required to
compensate the Liquidity Provider in respect of any Additional Costs, shall be
prima facie evidence of the amount owed under this Section.
Section 3.02. Capital Adequacy. Subject to the ABN AMRO Fee
Letter, if (1) the adoption, after the date hereof, of any applicable
governmental law, rule or regulation regarding capital adequacy, (2) any
change, after the date hereof, in the interpretation or administration of any
such law, rule or regulation by any central bank or other governmental
authority charged with the interpretation or administration thereof or (3)
compliance by the Liquidity Provider or any corporation controlling the
Liquidity Provider with any applicable guideline or request of general
applicability, issued after the date hereof, by any central bank or other
governmental authority (whether or not having the force of law) that
constitutes a change of the nature described in clause (2), has the effect of
requiring an increase in the amount of capital required to be
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maintained by the Liquidity Provider or any corporation controlling the
Liquidity Provider, and such increase is based upon the Liquidity Provider's
obligations hereunder and other similar obligations, the Borrower shall 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 agrees to use
reasonable efforts (consistent with applicable legal and regulatory
restrictions) to change the jurisdiction of its Lending Office if making such
change would avoid the need for, or reduce the amount of, any amount payable
under this Section that may thereafter accrue and would not, in the reasonable
judgment of the Liquidity Provider, be otherwise materially disadvantageous to
the Liquidity Provider.
The Liquidity Provider will notify the Borrower of any event
occurring after the date of this Agreement that will entitle the Liquidity
Provider to compensation pursuant to this Section 3.02 as promptly as
practicable after it obtains knowledge thereof and determines to request such
compensation, which notice shall describe in reasonable detail the calculation
of the amounts owed under this Section. Determinations by the Liquidity
Provider for purposes of this Section 3.02 of the effect of any increase in the
amount of capital required to be maintained by the bank 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.
Section 3.03. Payments Free of Deductions. All payments made
by the Borrower under this Agreement shall be made free and clear of, and
without reduction for or on account of, any present or future stamp or other
taxes, levies, imposts, duties, charges, fees, deductions, withholdings,
restrictions or conditions of any nature whatsoever now or hereafter imposed,
levied, collected, withheld or assessed, excluding Excluded Taxes (such
non-excluded taxes being referred to herein, collectively, as "Non-Excluded
Taxes" and, individually, as a "Non-Excluded Tax"). If any Non- Excluded Taxes
are required to be withheld from any amounts payable to the Liquidity Provider
under this Agreement, the amounts so payable to the Liquidity Provider shall be
increased to the extent necessary to yield to the Liquidity Provider (after
payment of all Non-Excluded Taxes) interest or any other such amounts payable
under this Agreement at the rates or in the amounts specified in this
Agreement. The Liquidity
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Provider agrees to use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to change the jurisdiction of its
Lending Office if making such change would avoid the need for, or reduce the
amount of, any such additional amounts that may thereafter accrue and would
not, in the reasonable judgment of the Liquidity Provider, be otherwise
disadvantageous to the Liquidity Provider. From time to time upon the
reasonable request of the Borrower, the Liquidity Provider agrees to provide to
the Borrower two original Internal Revenue Service Forms 1001 or 4224, 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.
Section 3.04. Payments. The Borrower shall make or cause to be
made each payment to the Liquidity Provider under this Agreement so as to cause
the same to be received by the Liquidity Provider not later than 1:00 P.M.
(New York City time) on the day when due. The Borrower shall make all such
payments in lawful money of the United States of America, to the Liquidity
Provider in immediately available funds, by wire transfer to ABN AMRO Bank
N.V., New York, NY, ABA # ▇▇▇▇▇▇▇▇▇, Account Name: ABN AMRO Bank, N.V. -
Chicago Branch, Account # 651-0-010111-42, Reference: Continental Airlines,
Inc.
Section 3.05. Computations. All computations of interest based
on the Base Rate shall be made on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the LIBOR Rate shall
be made on the basis of a year of 360 days, in each case for the actual number
of days (including the first day but excluding the last day) occurring in the
period for which such interest is payable.
Section 3.06. Payment on Non-Business Days. Whenever any
payment to be made hereunder shall be stated to be due on a day other than a
Business Day, such payment shall be made on the next succeeding Business Day
and no additional interest shall be due as a result (and if so made, shall be
deemed to have been made when due). If any payment in respect of interest on an
Advance is so deferred to the next succeeding Business Day, such deferral shall
not delay the commencement of the next Interest Period for such Advance (if
such Advance is a LIBOR Advance) or reduce the number of days for which
interest will be payable on such Advance on the next interest payment date for
such Advance.
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Section 3.07. Interest. (a) Subject to Section 2.09, the
Borrower shall pay, or shall cause to be paid, without duplication, interest on
(i) the unpaid principal amount of each Advance from and including the date of
such Advance (or, in the case of an Applied Provider Advance, from and
including the date on which the amount thereof was withdrawn from the ABN AMRO
Sub-Account of the Class C-II Cash Collateral Account to pay interest on the
Class C-II Certificates) to but excluding the date such principal amount shall
be paid in full (or, in the case of an Applied Provider Advance, the date on
which the ABN AMRO Sub-Account of the Class C-II Cash Collateral Account is
fully replenished in respect of such Advance) and (ii) any other amount due
hereunder (whether fees, commissions, expenses or other amounts or, to the
extent permitted by law, installments of interest on Advances or any such other
amount) which is not paid when due (whether at stated maturity, by acceleration
or otherwise) from and including the due date thereof to but excluding the date
such amount is paid in full, in each such case, at a fluctuating interest rate
per annum for each day equal to the Applicable Liquidity Rate (as defined
below) for such Advance or such other amount as in effect for such day, but in
no event at a rate per annum greater than the maximum rate permitted by
applicable law; provided, however, that, if at any time the otherwise
applicable interest rate as set forth in this Section 3.07 shall exceed the
maximum rate permitted by applicable law, then any subsequent reduction in such
interest rate will not reduce the rate of interest payable pursuant to this
Section 3.07 below the maximum rate permitted by applicable law until the total
amount of interest accrued equals the amount of interest that would have
accrued if such otherwise applicable interest rate as set forth in this Section
3.07 had at all times been in effect.
(b) Except as provided in clause (e) below, each Advance
will be either a Base Rate Advance or a LIBOR Advance as provided in this
Section. Each such Advance will be a Base Rate Advance for the period from the
date of its borrowing to (but excluding) the third Business Day following the
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) may 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.
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(c) Each LIBOR Advance shall bear interest during each
Interest Period at a rate per annum equal to the LIBOR Rate for such Interest
Period plus the Applicable Margin for such LIBOR Advance, payable in arrears on
the last day of such Interest Period and, in the event of the payment of
principal of such LIBOR Advance on a day other than such last day, on the date
of such payment (to the extent of interest accrued on the amount of principal
repaid).
(d) Each Base Rate Advance shall bear interest at a rate
per annum equal to the Base Rate plus the Applicable Margin for such Base Rate
Advance, payable in arrears on each Regular Distribution Date and, in the event
of the payment of principal of such Base Rate Advance on a day other than a
Regular Distribution Date, on the date of such payment (to the extent of
interest accrued on the amount of principal repaid).
(e) Each Unapplied Downgrade Advance (i) during the
period from and including the date of the making of such Unapplied Downgrade
Advance through but excluding the Expiry Date (or, if earlier, the date of
repayment thereof or of conversion thereof into a Final Advance), shall bear
interest in an amount equal to the Investment Earnings on amounts on deposit in
the ABN AMRO Sub-Account of the Class C-II Cash Collateral Account for such
period plus .35% per annum on the amount of such Unapplied Downgrade Advance
from time to time during such period, payable in arrears on each Regular
Distribution Date and (ii) thereafter, shall be a LIBOR Advance and shall bear
interest in accordance with clause (c) above.
(f) Each amount not paid when due hereunder (whether
fees, commissions, expenses or other amounts or, to the extent permitted by
applicable law, installments of interest on Advances but excluding Advances)
shall bear interest at a rate per annum equal to the Base Rate plus 2.00% until
paid.
(g) Each change in the Base Rate shall become effective
immediately. The rates of interest specified in this Section 3.07 with respect
to any Advance or other amount shall be referred to as the "Applicable
Liquidity Rate".
Section 3.08. Replacement of Borrower. From time to time and
subject to the successor Borrower's meeting the eligibility requirements set
forth in Section 6.9 of the Intercreditor Agreement applicable to the
Subordination Agent, upon the effective date and time specified in a written
and
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completed Notice of Replacement Subordination Agent in substantially the form
of Annex VI attached hereto (a "Notice of Replacement Subordination Agent")
delivered to the Liquidity Provider by the then Borrower, the successor
Borrower designated therein shall be substituted for as the Borrower for all
purposes hereunder.
Section 3.09. Funding Loss Indemnification. The Borrower shall
pay to the Liquidity Provider, upon the request of the Liquidity Provider, such
amount or amounts as shall be sufficient (in the reasonable opinion of the
Liquidity Provider) to compensate it for any loss, cost, or expense incurred by
reason of the liquidation or redeployment of deposits or other funds acquired
by the Liquidity Provider to fund or maintain any LIBOR Advance (but excluding
loss of anticipated profits) incurred as a result of:
(1) Any repayment of a LIBOR Advance on a date other than
the last day of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance
on the date for borrowing specified in the relevant notice under
Section 2.02.
Section 3.10. Illegality. Notwithstanding any other provision
in this Agreement, if any change in any applicable law, rule or regulation, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Liquidity Provider (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for the Liquidity Provider (or its Lending Office) to maintain or
fund its LIBOR Advances, then upon notice to the Borrower by the Liquidity
Provider, the outstanding principal amount of the LIBOR Advances shall be
converted to Base Rate Advances (a) immediately upon demand of the Liquidity
Provider, if such change or compliance with such request, in the judgment of
the Liquidity Provider, requires immediate repayment; or (b) at the expiration
of the last Interest Period to expire before the effective date of any such
change or request.
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ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section
2.01. Section 2.01 of this Agreement shall become effective on and as of the
first date (the "Effective Date") on which the following conditions precedent
have been satisfied or waived:
(a) The Liquidity Provider shall have received on or
before the Closing Date each of the following, and in the case of each
document delivered pursuant to paragraphs (i), (ii) and (iii), each in
form and substance satisfactory to the Liquidity Provider:
(i) This Agreement duly executed on behalf of the
Borrower;
(ii) The Intercreditor Agreement duly executed on behalf
of each of the parties thereto;
(iii) Fully executed copies of each of the Operative
Agreements executed and delivered on or before the
Closing Date (other than this Agreement and the
Intercreditor Agreement);
(iv) A copy of the Offering Memorandum and specimen copies
of the Class C-II Certificates;
(v) An executed copy of each document, instrument,
certificate and opinion delivered on or before the
Closing Date pursuant to the Class C-II Trust
Agreement, the Intercreditor Agreement and the other
Operative Agreements (together with, in the case of
each such opinion, other than the opinion of counsel
for the Initial Purchasers, a letter from the counsel
rendering such opinion to the effect that the
Liquidity Provider is entitled to rely on such
opinion as of its date as if it were addressed to the
Liquidity Provider);
(vi) Evidence that there shall have been made and shall be
in full force and effect, all filings, recordings
and/or registrations, and there shall have been given
or taken any notice or other similar action as may be
reasonably necessary or,
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to the extent reasonably requested by the Liquidity
Provider, reasonably advisable, in order to
establish, perfect, protect and preserve the right,
title and interest, remedies, powers, privileges,
liens and security interests of, or for the benefit
of, the Trustees, the Borrower and the Liquidity
Provider created by the Operative Agreements executed
and delivered on or prior to the Closing Date;
(vii) An agreement from Continental, pursuant to which (i)
Continental agrees to provide copies of quarterly
financial statements and audited annual financial
statements to the Liquidity Provider, and such other
information as the Liquidity Provider shall
reasonably request with respect to the transactions
contemplated by the Operative Agreements, in each
case, only to the extent that Continental is
obligated to provide such information pursuant to
Section 8.2.1 of the Leases (related to Leased
Aircraft) or the corresponding section of the
Indentures (related to Owned Aircraft) to the parties
thereto and (ii) Continental agrees to allow the
Liquidity Provider to inspect Continental's books and
records regarding such transactions, and to discuss
such transactions with officers and employees of
Continental; and
(viii) Such other documents, instruments, opinions and
approvals as the Liquidity Provider shall have
reasonably requested.
(b) The following statement shall be true on and as of
the Effective Date: No event has occurred and is continuing, or would
result from the entering into of this Agreement or the making of any
Advance, which constitutes a Liquidity Event of Default.
(c) The Liquidity Provider shall have received payment in
full of all fees and other sums required to be paid to or for the
account of the Liquidity Provider on or prior to the Effective Date.
(d) All conditions precedent to the issuance of the
Certificates under the Trust Agreements shall have been satisfied, all
conditions precedent to the effectiveness of the other Liquidity
Facilities shall have been
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satisfied, and all conditions precedent to the purchase of the
Certificates by the Initial Purchasers under the Purchase Agreement
shall have been satisfied (unless any of such conditions precedent
shall have been waived by the Initial Purchasers).
(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, prior to the date of such Borrowing, the Borrower
shall have delivered a Notice of Borrowing which conforms to the terms and
conditions of this Agreement and has been completed as may be required by the
relevant form of the Notice of Borrowing for the type of Advances requested.
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower. So long
as any Advance shall remain unpaid or the 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
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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 written
consent of the Liquidity Provider, which consent shall not be unreasonably
withheld or delayed.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default. If (a) any
Liquidity Event of Default has occurred and is continuing and (b) there is a
Performing Note Deficiency, the Liquidity Provider may, in its discretion,
deliver to the Borrower a Termination Notice, the effect of which shall be to
cause (i) this Agreement to expire on the fifth Business Day after the date on
which such Termination Notice is received by the Borrower, (ii) the Borrower to
promptly request, and the Liquidity Provider to promptly make, a Final Advance
in accordance with Section 2.02(d) hereof and Section 3.6(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.
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ARTICLE VII
MISCELLANEOUS
Section 7.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Liquidity Provider, and, in the case of an amendment or of a
waiver by the Borrower, the Borrower, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
Section 7.02. Notices, Etc. Except as otherwise expressly
provided herein, all notices and other communications provided for hereunder
shall be in writing (including telecopier and mailed or delivered or sent by
telecopier):
Borrower: WILMINGTON TRUST COMPANY
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Liquidity Provider: ABN AMRO BANK N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Aerospace Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or, as to each of the foregoing, at such other address as shall be designated
by such Person in a written notice to the others. All such notices and
communications shall be effective (i) if given by telecopier, when transmitted
to the telecopier number specified above, (ii) if given by mail, when deposited
in the mails addressed as specified above, and (iii) if given by other means,
when delivered at the address specified above, except that written notices to
the Liquidity Provider pursuant to the provisions of Articles II and III hereof
shall not be effective until received by the Liquidity Provider. A copy of all
notices
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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 10.1 of the Participation Agreements and Section 6
of the Note Purchase Agreement. 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 Sections 3.01,
3.02 or 7.07 hereof or in the ABN AMRO Fee Letter (regardless of whether
indemnified against pursuant to said Sections or in such Fee Letter)), that may
be imposed, incurred by or asserted against any Liquidity Indemnitee, in any
way relating to, resulting from, or arising out of or in connection with any
action, suit or proceeding by any third party against such Liquidity Indemnitee
and relating to this Agreement, the ABN AMRO Fee Letter, the Intercreditor
Agreement or any Financing Agreement; provided, however, that the Borrower
shall not be required to indemnify, protect, defend and hold harmless any
Liquidity Indemnitee in respect of any Expense of such Liquidity Indemnitee (i)
to the extent such Expense is attributable to the gross negligence or willful
misconduct of such Liquidity Indemnitee or any other Liquidity Indemnitee, (ii)
that is ordinary and usual operating overhead expense, and (iii) to the extent
such Expense is attributable to the failure by such Liquidity Indemnitee or any
33
29
other Liquidity Indemnitee to perform or observe any agreement, covenant or
condition on its part to be performed or observed in this Agreement, the
Intercreditor Agreement, the ABN AMRO Fee Letter, the Tax Letter or any other
Operative Document to which it is a party. The indemnities contained in such
Section 10.1, and the provisions of Sections 3.01, 3.02, 3.03, 3.09, 7.05 and
7.07 hereof, shall survive the termination of this Agreement.
Section 7.06. Liability of the Liquidity Provider. (a) Neither
the Liquidity Provider nor any of its officers, employees, directors or
affiliates shall be liable or responsible for: (i) the use which may be made of
the Advances or any acts or omissions of the Borrower or any beneficiary or
transferee in connection therewith; (ii) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient, fraudulent or
forged; or (iii) the making of Advances by the Liquidity Provider against
delivery of a Notice of Borrowing and other documents which do not comply with
the terms hereof; provided, however, that the Borrower shall have a claim
against the Liquidity Provider, and the Liquidity Provider shall be liable to
the Borrower, to the extent of any damages suffered by the Borrower which were
the result of (A) the Liquidity Provider's willful misconduct or negligence in
determining whether documents presented hereunder comply with the terms hereof,
or (B) any breach by the Liquidity Provider of any of the terms of this
Agreement, including, but not limited to, the Liquidity Provider's failure to
make lawful payment hereunder after the delivery to it by the Borrower of a
Notice of Borrowing strictly complying with the terms and conditions hereof.
(b) Neither the Liquidity Provider nor any of its
officers, employees, director or affiliates shall be liable or responsible in
any respect for (i) any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with this Agreement or any Notice of Borrowing delivered hereunder,
or (ii) any action, inaction or omission which may be taken by it in good
faith, absent willful misconduct or negligence (in which event the extent of
the 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
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30
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 (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 Accounts. In
addition, the Borrower shall pay any and all recording, stamp and other similar
taxes and fees payable or determined to be payable in connection with the
execution, delivery, filing and recording of this Agreement, any other
Operative Agreement and such other documents, and agrees to save the Liquidity
Provider harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes or fees.
Section 7.08. Binding Effect; Participations. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrower and
the Liquidity Provider and their respective successors and assigns, except that
neither the Liquidity Provider (except as otherwise provided in this Section
7.08) nor (except as contemplated by Section 3.08) the Borrower shall have the
right to assign its rights or obligations hereunder or any interest herein
without the prior written consent of the other party, subject to the
requirements of Section 7.08(b). The Liquidity Provider may grant
participations herein or in any of its rights hereunder (including, without
limitation, funded participations and participations in rights to receive
interest payments hereunder) and under the other Operative Agreements to such
Persons as the Liquidity Provider may in its sole discretion select, subject to
the requirements of Section 7.08(b). No such participation by the Liquidity
Provider, however, will relieve
35
31
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
(other than Continental). 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(a) and the like as they pertain to the Liquidity
Provider shall be deemed also to include those of each of its participants
(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
transfer, 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 4224 or Form 1001, 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 4224 or
36
32
Form 1001, as appropriate, (A) on or before the date that any such form expires
or becomes obsolete or (B) after the occurrence of any event requiring a change
in the most recent form previously delivered by it and prior to the immediately
following due date of any payment by the Borrower hereunder, certifying in the
case of a Form 1001 or Form 4224 that such Transferee is entitled to a complete
exemption from United States federal withholding tax on payments under this
Agreement. Unless the Borrower has received forms or other documents reasonably
satisfactory to it (and required by applicable law) indicating that payments
hereunder are not subject to United States federal withholding tax, the
Borrower will withhold taxes as required by law from such payments at the
applicable statutory rate.
(c) Notwithstanding the other provisions of this Section
7.08, the Liquidity Provider may assign and pledge all or any portion of the
Advances owing to it to any Federal Reserve Bank or the United States Treasury
as collateral security pursuant to Regulation A of the Board of Governors of
the Federal Reserve System and any Operating Circular issued by such Federal
Reserve Bank, provided that any payment in respect of such assigned Advances
made by the Borrower to the Liquidity Provider in accordance with the terms of
this Agreement shall satisfy the Borrower's obligations hereunder in respect of
such assigned Advance to the extent of such payment. No such assignment shall
release the Liquidity Provider from its obligations hereunder.
Section 7.09. Severability. Any provision of this Agreement
which is prohibited, unenforceable or not authorized in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
Section 7.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 7.11. Submission to Jurisdiction; Waiver of Jury
Trial; Waiver of Immunity. (a) Each of the parties hereto hereby irrevocably
and unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement or
any other Operative Agreement, or for recognition and
enforcement of any judgment in respect hereof or
thereof, to the nonexclusive general jurisdiction of
the courts of the State of New York, the courts of
the United States of America
37
33
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 and 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 and waives any immunity any of its properties located in the United
States may have from attachment or execution upon a judgement entered by any
such court under the
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United States Foreign Sovereign Immunities Act of 1976 or any similar successor
legislation.
Section 7.12. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 7.13. Entirety. This Agreement, the Intercreditor
Agreement and the other Operative Agreements to which the Liquidity Provider is
a party constitute the entire agreement of the parties hereto with respect to
the subject matter hereof and supersedes all prior understandings and
agreements of such parties.
Section 7.14. Headings. Section headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
Section 7.15. Transfer. The Liquidity Provider hereby
acknowledges and consents to the Transfer contemplated by the Assignment and
Assumption Agreement.
Section 7.16. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE
ADVANCES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF
THE LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO
DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL
BE UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE
STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duty executed and delivered by their respective officers thereunto duly
authorized as of the date first set forth above.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Subordination Agent, as agent and trustee
for the Class C-II Trust, as Borrower
By:
----------------------------------------
Name:
Title:
ABN AMRO BANK N.V.,
Chicago Branch, as Liquidity Provider
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
40
Annex I to
Revolving Credit Agreement
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned borrower (the "Borrower"), hereby certifies to ABN AMRO N.V.,
Chicago Branch (the "Liquidity Provider"), with reference to the Revolving
Credit Agreement (1997-1C-II) dated as of March 21, 1997, 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 the Stated
Portion of the interest on the Class C-II Certificates which was
payable on ____________, ____ (the "Distribution Date") in accordance
with the terms and provisions of the Class C-II Trust Agreement and
the Class C-II Certificates pursuant to clause fifth of Section 3.2 of
the Intercreditor Agreement or clause seventh of Section 3.3 of the
Intercreditor Agreement, which Advance is requested to be made on
____________, ____.
(3) The amount of the Interest Advance requested hereby
(i) is $_______________.__, to be applied in respect of the payment of
the Stated Portion of the interest which was due and payable on the
Class C-II Certificates on the Distribution Date, (ii) does not
include any amount with respect to the payment of principal of, or
premium on, the Class A Certificates, the Class B Certificates, the
Class C-I Certificates or the Class C-II Certificates, or interest on
the Class A Certificates, the Class B Certificates or the Class C-I
Certificates, (iii) was computed in accordance with the provisions of
the Class C-II Certificates, the Class C- II Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached
hereto as Schedule I), (iv) does not exceed the Maximum Available
Commitment on the date hereof, (v) does not include any amount of
interest which was due and payable on the Class C-II Certificates on
41
such Distribution Date but which remains unpaid due to the failure of
the Depositary to pay any amount of accrued interest on the
Certificates of Deposit 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 3.2 or 3.3 of the Intercreditor
Agreement, as the case may be, (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
Certificate and such reduction shall automatically result in corresponding
reductions in the amounts available to be borrowed pursuant to a subsequent
Advance.
I-2
42
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:
I-3
43
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest Advance Notice of
Borrowing]
44
Annex II to
Revolving Credit Agreement
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned subordination agent (the "Borrower"), hereby certifies to ABN AMRO
BANK N.V., Chicago Branch (the "Liquidity Provider"), with reference to the
Revolving Credit Agreement (1997-1C-II) dated as of March 21, 1997, between the
Borrower and the Liquidity Provider (the "Liquidity Agreement"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined or referenced), that:
(1) The Borrower is the Subordination Agent under the
Intercreditor Agreement.
(2) The Borrower is delivering this Notice of Borrowing
for the making of the Non-Extension Advance by the Liquidity Provider
to be used for the funding of the ABN AMRO Sub-Account of the Class
C-II Cash Collateral Account in accordance with Section 3.6(d) of the
Intercreditor Agreement, which Advance is requested to be made on
__________, ____.
(3) The amount of the Non-Extension Advance requested
hereby (i) is $_______________.__, which equals the Maximum Available
Commitment on the date hereof and is to be applied in respect of the
funding of the ABN AMRO Sub-Account of the Class C-II Cash Collateral
Account in accordance with Section 3.6(d) of the Intercreditor
Agreement, (ii) does not include any amount with respect to the
payment of the principal of, or premium on, the Class C-II
Certificates, or principal of, or interest or premium on, the Class A
Certificates, the Class B Certificates or the Class C-I Certificates,
(iii) was computed in accordance with the provisions of the Class C-II
Certificates, the Class C-II 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
45
such amount in the ABN AMRO Sub-Account of the Class C-II Cash
Collateral Account and apply the same in accordance with the terms of
Section 3.6(d) of the Intercreditor Agreement, (b) no portion of such
amount shall be applied by the Borrower for any other purpose and (c)
no portion of such amount until so applied shall be commingled with
other funds held by the Borrower.
(5) The Borrower hereby requests that the Advance
requested hereby be a Base Rate Advance and that such Base Rate
Advance be converted into a LIBOR Advance on the third Business Day
following your receipt of this notice.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Non- Extension Advance as requested
by this Notice of Borrowing shall automatically and irrevocably terminate the
obligation of the Liquidity Provider to make further Advances under the
Liquidity Agreement; and (B) following the making by the Liquidity Provider of
the Non-Extension Advance requested by this Notice of Borrowing, the Borrower
shall not be entitled to request any further Advances under the Liquidity
Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Subordination
Agent, as agent and trustee for the Class C-II
Trust, as Borrower
By:
---------------------------------------------
Name:
Title:
II-2
46
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with
Non-Extension Advance Notice of Borrowing]
II-3
47
Annex III to
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned subordination agent (the "Borrower"), hereby certifies to ABN AMRO
BANK N.V., Chicago Branch (the "Liquidity Provider"), with reference to the
Revolving Credit Agreement (1997-1C-II) dated as of March 21, 1997, 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 ABN AMRO Sub-Account of the Class C-II
Cash Collateral Account in accordance with Section 3.6(c) of the
Intercreditor Agreement by reason of the downgrading of the short-term
unsecured debt rating of the Liquidity Provider issued by either
Rating Agency below the Threshold Rating, which Advance is requested
to be made on __________, ____.
(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 ABN AMRO Sub-Account of the Class C-II Cash Collateral
Account in accordance with Section 3.6(c) of the Intercreditor
Agreement, (ii) does not include any amount with respect to the
payment of the principal of, or premium on, the Class C-II
Certificates, or principal of, or interest or premium on, the Class A
Certificates, the Class B Certificates or the Class C-I Certificates,
(iii) was computed in accordance with the provisions of the Class C-II
Certificates, the Class C-II 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.
48
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such amount in
the ABN AMRO Sub-Account of the Class C-II Cash Collateral Account and
apply the same in accordance with the terms of Section 3.6(c) of the
Intercreditor Agreement, (b) no portion of such amount shall be
applied by the Borrower for any other purpose and (c) no portion of
such amount until so applied shall be commingled with other funds held
by the Borrower.
(5) The Borrower hereby requests that the Advance
requested hereby be a Base Rate Advance and that such Base Rate
Advance be converted into a LIBOR Advance on the third Business Day
following your receipt of this notice.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the 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 agent and trustee
for the Class C-II Trust, as Borrower
By:
-------------------------------------------
Name:
Title:
III-2
49
Annex IV to
Revolving Credit Agreement
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned borrower (the "Borrower"), hereby certifies to ABN AMRO BANK N.V.,
Chicago Branch (the "Liquidity Provider"), with reference to the Revolving
Credit Agreement (1997-1C-II) dated as of March 21, 1997, 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 ABN AMRO Sub-Account of the Class C-II
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
____________, ____.
(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 ABN AMRO Sub-Account of the Class C-II Cash Collateral
Account in accordance with Section 3.6(i) of the Intercreditor
Agreement, (ii) does not include any amount with respect to the
payment of principal of, or premium on, the Class C-II Certificates,
or principal of, or interest or premium on, the Class A Certificates,
the Class B Certificates or the Class C-I Certificates, (iii) was
computed in accordance with the provisions of the Class C-II
Certificates, the Class C-II 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.
50
(4) Upon receipt by or on behalf of the Borrower of the
amount requested hereby, (a) the Borrower will deposit such amount in
the ABN AMRO Sub-Account of the Class C-II Cash Collateral Account and
apply the same in accordance with the terms of Section 3.6(i) of the
Intercreditor Agreement, (b) no portion of such amount shall be
applied by the Borrower for any other purpose and (c) no portion of
such amount until so applied shall be commingled with other funds held
by the Borrower.
(5) The Borrower hereby requests that the Advance
requested hereby be a Base Rate Advance and that such Base Rate
Advance be converted into a LIBOR Advance on the third Business Day
following your receipt of this notice.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Final Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the
obligation of the 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 agent and trustee
for the Class C-II Trust, as Borrower
By:
-------------------------------------------
Name:
Title:
IV-2
51
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with
Final Advance Notice of Borrowing]
IV-3
52
Annex V to Revolving Credit Agreement
NOTICE OF TERMINATION
[Date]
Wilmington Trust Company,
as Subordination Agent, as Borrower
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Revolving Credit Agreement dated as of March 21, 1997, between
Wilmington Trust Company, as Subordination Agent, as agent and
trustee for the Continental Airlines Pass Through Trust,
1997-1C-II- [O/S], as Borrower, and ABN AMRO BANK N.V.,
Chicago Branch (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.
53
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,
ABN AMRO BANK N.V.,
Chicago Branch,
as Liquidity Provider
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
cc: Wilmington Trust Company,
as Class C-II Trustee
V-2
54
Annex VI to
Revolving Credit Agreement
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement dated as of March 21, 1997, between
Wilmington Trust Company, as Subordination Agent, as agent and
trustee for the Continental Airlines Pass Through Trust,
1997-1C-II-[O/S], as Borrower, and ABN AMRO BANK N.V.,
Chicago Branch (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.
55
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
VI-2
