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REVOLVING CREDIT AGREEMENT(2004-ERJ1)
Dated as of June 29, 2004
between
WILMINGTON TRUST COMPANY,
as Subordination Agent, as agent and trustee for the
Continental Airlines Pass Through Trust 2004-ERJ1,
as Borrower
and
WESTLB AG, NEW YORK BRANCH,
as Liquidity Provider
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Continental Airlines Pass Through Trust 2004-ERJ1
Continental Airlines 9.558% Pass Through Certificates,
Series 2004-ERJ1
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS.......................................................1
Section
1.01 Certain Defined
Terms....................................1
ARTICLE II AMOUNT AND TERMS OF THE
COMMITMENT...............................7
Section
2.01 The
Advances.............................................7
Section
2.02 Making the
Advances......................................7
Section
2.03
Fees.....................................................10
Section
2.04 Reductions or
Termination of the Maximum Commitment......10
Section
2.05 Repayments of
Interest Advances or the Final Advance.....10
Section
2.06 Repayments of
Provider Advances..........................11
Section
2.07. Payments to the Liquidity Provider Under the
Intercreditor Agreement..................................12
Section
2.08 Book
Entries.............................................12
Section
2.09 Payments from
Available Funds Only.......................12
Section
2.10 WestLB Early
Termination Notice; WestLB Early
Termination Advance......................................12
ARTICLE III OBLIGATIONS OF THE
BORROWER.....................................13
Section
3.01 Increased
Costs..........................................13
Section
3.02 Capital
Adequacy.........................................14
Section
3.03 Payments Free of
Deductions..............................14
Section
3.04
Payments.................................................15
Section
3.05
Computations.............................................16
Section
3.06 Payment on
Non-Business Days.............................16
Section
3.07
Interest.................................................16
Section
3.08 Replacement of
Borrower..................................17
Section
3.09 Funding Loss
Indemnification.............................17
Section
3.10
Illegality...............................................18
Section
3.11
Mitigation...............................................18
ARTICLE IV CONDITIONS
PRECEDENT.............................................18
Section
4.01 Conditions
Precedent to Effectiveness of Section 2.01....18
Section
4.02 Conditions
Precedent to Borrowing........................20
ARTICLE V
COVENANTS.........................................................20
Section
5.01 Affirmative
Covenants of the Borrower....................20
Section
5.02 Negative
Covenants of the Borrower.......................21
ARTICLE VI LIQUIDITY EVENTS OF
DEFAULT......................................21
Section
6.01 Liquidity Events
of Default..............................21
i
<PAGE>
ARTICLE VII
MISCELLANEOUS...................................................21
Section
7.01 Amendments,
Etc..........................................21
Section
7.02 Notices,
Etc.............................................22
Section
7.03 No Waiver;
Remedies......................................23
Section
7.04 Further
Assurances.......................................23
Section
7.05 Indemnification;
Survival of Certain Provisions..........23
Section 7.06 Liability of the Liquidity
Provider......................23
Section
7.07 Costs, Expenses
and Taxes................................24
Section
7.08 Binding Effect;
Participations...........................24
Section
7.09
Severability.............................................26
Section
7.10 GOVERNING
LAW............................................26
Section
7.11 Submission to
Jurisdiction; Waiver of Jury Trial.........26
Section
7.12 Execution in
Counterparts................................27
Section
7.13
Entirety.................................................27
Section
7.14
Headings.................................................27
Section
7.15 LIQUIDITY
PROVIDER'S OBLIGATION TO MAKE ADVANCES.........27
ANNEX I Interest Advance
Notice of Borrowing
ANNEX II WestLB Early
Termination 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
ANNEX VII WestLB Expiration Advance
Notice of Borrowing
ii
<PAGE>
REVOLVING CREDIT AGREEMENT (2004-ERJ1)
This REVOLVING CREDIT AGREEMENT (2004-ERJ1), dated as of June
29,
2004, is made by and between WILMINGTON
TRUST COMPANY, a Delaware corporation,
not in its individual capacity but solely
as Subordination Agent under the
Intercreditor Agreement (each as defined
below), as agent and trustee for the
Trust (as defined below) (the "BORROWER"),
and WESTLB AG, a joint stock company
("Aktiengesellschaft") organized under the
laws of Germany, acting through its
New York Branch (the "LIQUIDITY
PROVIDER").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Trust Agreement (such term and all
other
capitalized terms used in these recitals
having the meanings set forth or
referred to in Section 1.01), the Trust is
issuing the Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of
a
portion of the interest on the Certificates
in accordance with their terms, has
requested the Liquidity Provider to enter
into this Agreement, providing in part
for the Borrower to request in specified
circumstances that Advances be made
hereunder.
NOW, THEREFORE, in consideration of the mutual agreements
herein
contained, and of other good and valuable
consideration the receipt and adequacy
of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01.
CERTAIN DEFINED TERMS.
(a) As used in
this Agreement and unless expressly indicated, or
unless the context clearly requires
otherwise, the following capitalized terms
shall have the following respective
meanings for all purposes of this Agreement:
"ADDITIONAL COSTS" has the meaning assigned to such term in
Section
3.01.
"ADVANCE" means an Interest Advance, a Final Advance, a
Provider
Advance or an Applied Provider Advance, as
the case may be.
"AGREEMENT" means this Revolving Credit Agreement (2004-ERJ1),
dated
as of June 29, 2004, between the Borrower
and the Liquidity Provider, as the
same may be amended, supplemented or
otherwise modified from time to time in
accordance with its terms.
"APPLICABLE LIQUIDITY RATE" has the meaning assigned to such term
in
Section 3.07(f).
<PAGE>
"APPLICABLE MARGIN" means (i) with respect to any Unpaid Advance
or
Applied Provider Advance, 2.75% per annum
and (ii) with respect to any Unapplied
Provider Advance, the rate per annum
specified in the Fee Letter applicable to
this Agreement.
"APPLIED DOWNGRADE ADVANCE" has the meaning assigned to such term
in
Section 2.06(a).
"APPLIED WESTLB EARLY TERMINATION ADVANCE" has the meaning
assigned
to such term in Section 2.06(a).
"APPLIED PROVIDER ADVANCE" has the meaning assigned to such term
in
Section 2.06(a).
"APPLIED WESTLB EXPIRATION ADVANCE" has the meaning assigned to
such
term in Section 2.06(a).
"BASE
RATE" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum
shall at all times be equal to (a) the
weighted average of the rates on overnight
Federal funds transactions with
members of the Federal Reserve System
arranged by Federal funds brokers, as
published for such day (or, if such day is
not a Business Day, for the next
preceding Business Day) by the Federal
Reserve Bank of New York, or if such rate
is not so published for any day that is a
Business Day, the average of the
quotations for such day for such
transactions received by the Liquidity Provider
from three Federal funds brokers of
recognized standing selected by it, plus (b)
one-quarter of one percent (1/4 of 1%).
"BASE RATE ADVANCE" means an Advance that bears interest at a
rate
based upon the Base Rate.
"BORROWER" has the meaning assigned to such term in the recital
of
parties to this Agreement.
"BORROWING" means the making of Advances requested by delivery of
a
Notice of Borrowing.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or
a
day on which commercial banks are required
or authorized to close in Houston,
Texas, New York, New York or, so long as
any Certificate is outstanding, the
city and state in which the Trustee, the
Borrower or any Loan Trustee maintains
its Corporate Trust Office or receives or
disburses funds, and, if the
applicable Business Day relates to any
Advance or other amount bearing interest
based on the LIBOR Rate, on which dealings
are carried on in the London
interbank market.
"DEPOSIT AGREEMENT" means the Deposit Agreement dated as of the
date
hereof between Wells Fargo Bank Northwest,
National Association, as Escrow
Agent, and WestLB AG, New York Branch, as
Depositary, pertaining to the
Certificates, as the same may be amended,
modified or supplemented from time to
time in accordance with the terms
thereof.
"DEPOSITARY" has the meaning assigned to such term in the
Deposit
Agreement.
<PAGE>
"DEPOSITS" has the meaning assigned to such term in the Deposit
Agreement.
"DOWNGRADE ADVANCE" means an Advance made pursuant to Section
2.02(c).
"DOWNGRADE EVENT" means a downgrading of the Liquidity
Provider's
short-term unsecured debt rating or
short-term issuer credit rating, as the case
may be, issued by either Rating Agency
below the applicable Threshold Rating
unless each Rating Agency shall have
confirmed in writing on or prior to the
date of such downgrading that such
downgrading will not result in the
downgrading, withdrawal or suspension of
the ratings of the Certificates, in
which case such downgrading of the
Liquidity Provider's short-term unsecured
debt rating or short-term issuer credit
rating, as the case may be, shall not
constitute a Downgrade Event.
"EFFECTIVE DATE" has the meaning assigned to such term in
Section
4.01. The delivery of the certificate of
the Liquidity Provider contemplated by
Section 4.01(e) shall be conclusive
evidence that the Effective Date has
occurred.
"EXCLUDED TAXES" means (i) Taxes imposed on, based on or measured
by
the income of, or franchise Taxes imposed
on, the Liquidity Provider or its
Lending Office by the jurisdiction where
such Liquidity Provider's principal
office or such Lending Office is located or
any other taxing jurisdiction in
which such Tax is imposed as a result of
the Liquidity Provider being, or having
been, organized in, or conducting, or
having conducted, any activities unrelated
to the transactions contemplated by the
Operative Agreements in, such
jurisdiction or (ii) withholding taxes,
whether or not indemnified under Section
3.03.
"EXCLUDED WITHHOLDING TAXES" means (i) withholding Taxes imposed
by
the United States except to the extent that
such United States withholding Taxes
are imposed or increased as a result of a
change in applicable law after the
date hereof and, in the case of any
successor Liquidity Provider, any
withholding Tax imposed by the United
States except (a) if such Liquidity
Provider is, on the date it acquires its
interest herein, a "resident" of an
Applicable Treaty jurisdiction entitled to
claim the benefits of an Applicable
Treaty in respect of amounts payable
hereunder, any such withholding Tax to the
extent imposed as a result of a change in
applicable law (other than any
addition of, or change in, any "anti-treaty
shopping", "limitation on benefits",
or similar provision in any treaty or other
applicable law restricting the
availability of treaty benefits (including,
without limitation any provision
similar to the Protocol Amending the
Convention Between the United States of
America and the Kingdom of the Netherlands
for the Avoidance of Double Taxation
and the Prevention of Fiscal Evasion with
respect to Taxes on Income, signed at
Washington on October 13, 1993)) after the
date such Liquidity Provider acquired
its interest herein and (b) any such
withholding Tax to the extent the amount of
such withholding Tax imposed on such
successor Liquidity Provider does not
exceed the amount of such withholding Tax
that, in the absence of the transfer
to such Liquidity Provider, would have been
an Indemnified Tax imposed on
payments to the predecessor Liquidity
Provider pursuant to applicable law in
effect on the date such successor Liquidity
Provider acquired its interest
herein, (ii) any Tax imposed or to the
extent increased as a result of the
Liquidity Provider failing to deliver to
the Borrower any certificate or
document (the delivery of which certificate
or document in the good faith
judgment of the Liquidity Provider will not
expose the Liquidity Provider to any
adverse consequence and which the Liquidity
Provider is legally entitled to
provide) which is reasonably requested by
the Borrower to establish that
payments under this Agreement are exempt
from (or entitled to a reduced rate of)
<PAGE>
withholding Tax, and (iii) any Tax imposed
by a jurisdiction as a result of the
Liquidity Provider being, or having been,
organized in, or maintaining, or
having maintained, its principal office or
Lending Office in, or conducting, or
having conducted, any activities unrelated
to the transactions contemplated by
the Operative Agreements in, such
jurisdiction. For purposes of this definition,
"Applicable Treaty" means an income tax
treaty between the United States and any
of Australia, Austria, Canada, France,
Germany, Ireland, Japan, Luxembourg, The
Netherlands, Sweden, Switzerland or the
United Kingdom.
"EXPENSES" means liabilities, obligations, damages,
settlements,
penalties, claims, actions, suits, costs,
expenses, and disbursements
(including, without limitation, reasonable
fees and disbursements of legal
counsel and costs of investigation),
provided that Expenses shall not include
any Taxes other than sales, use and V.A.T.
taxes imposed on fees and expenses
payable pursuant to Section 7.07.
"EXPIRY DATE" means December 16, 2015.
"FINAL ADVANCE" means an Advance made pursuant to Section
2.02(d).
"INDEMNIFIED TAX" has the meaning assigned to such term in
Section
3.03.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement dated
as
of the date hereof, among the Trustee, the
Liquidity Provider, the other
liquidity provider party thereto and the
Subordination Agent, as the same may be
amended, supplemented or otherwise modified
from time to time in accordance with
its terms.
"INTEREST ADVANCE" means an Advance made pursuant to Section
2.02(a).
"INTEREST PERIOD" means, with respect to any LIBOR Advance, each
of
the following periods:
(i) the period
beginning on the third Business Day following
either (A) the Liquidity Provider's receipt of the Notice of
Borrowing for such LIBOR Advance or (B) the withdrawal of
funds from the Cash Collateral Account for the purpose of
paying interest on the Certificates as contemplated by Section
2.06(a) hereof and, in either case, ending on 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.
"LENDING OFFICE" means the lending office of the Liquidity
Provider
presently located at New York, New York, or
such other lending office as the
Liquidity Provider from time to time shall
notify the Borrower as its Lending
Office hereunder; provided that the
Liquidity Provider shall not change its
Lending Office to another lending office
outside the United States of America
except in accordance with Section 3.11
hereof.
<PAGE>
"LIBOR ADVANCE" means an Advance bearing interest at a rate
based
upon the LIBOR Rate.
"LIBOR RATE" means, with respect to any Interest Period,
(i) the rate per
annum appearing on display page 3750 (British
Bankers Association-LIBOR) of the Telerate Service (or any
successor or substitute therefor) at approximately 11:00 a.m.
(London time) two Business Days before the first day of such
Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period, or
(ii) if the rate
calculated pursuant to clause (i) above is not
available, the average (rounded upwards, if necessary, to the
next 1/16 of 1%) of the rates per annum at which deposits in
dollars are offered for the relevant Interest Period by three
banks of recognized standing selected by the Liquidity
Provider in the London interbank market at approximately 11:00
a.m. (London time) two Business Days before the first day of
such Interest Period in an amount approximately equal to the
principal amount of the LIBOR Advance to which such Interest
Period is to apply and for a period comparable to such
Interest Period.
"LIQUIDITY EVENT OF DEFAULT" means the occurrence of either (a)
the
Acceleration of all of the Equipment Notes
(PROVIDED that, with respect to the
period prior to the Delivery Period Expiry
Date, such Equipment Notes have an
aggregate outstanding principal balance in
excess of $108,000,000) 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" means, subject to the proviso
contained in the third sentence of Section
2.02(a), at any time of
determination, (a) the Maximum Commitment
at such time less (b) the aggregate
amount of each Interest Advance outstanding
at such time; provided that
following a Provider Advance or a Final
Advance, the Maximum Available
Commitment shall be zero.
"MAXIMUM COMMITMENT" means initially $15,827,353.87, as the same
may
be reduced from time to time in accordance
with Section 2.04(a).
"NOTICE OF BORROWING" has the meaning assigned to such term in
Section 2.02(f).
"NOTICE OF REPLACEMENT SUBORDINATION AGENT" has the meaning
assigned
to such term in Section 3.08.
<PAGE>
"PERFORMING NOTE DEFICIENCY" means any time that less than 65%
of
the then aggregate outstanding principal
amount of all Equipment Notes are
Performing Equipment Notes.
"PROSPECTUS SUPPLEMENT" means the final Prospectus Supplement
dated
June 18, 2004 relating to the Certificates,
as such Prospectus Supplement may be
amended or supplemented.
"PROVIDER ADVANCE" means a Downgrade Advance, a WestLB Early
Termination Advance or a WestLB Expiration
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).
"TERMINATION DATE" means the earliest to occur of the following:
(i)
the Expiry Date; (ii) the date on which the
Borrower delivers to the Liquidity
Provider a certificate, signed by a
Responsible Officer of the Borrower,
certifying that all of the Certificates
have been paid in full (or provision has
been made for such payment in accordance
with the Intercreditor Agreement and
the Trust Agreement) or are otherwise no
longer entitled to the benefits of this
Agreement; (iii) the date on which the
Borrower delivers to the Liquidity
Provider a certificate, signed by a
Responsible Officer of the Borrower,
certifying that a Replacement Liquidity
Facility has been substituted for this
Agreement in full pursuant to Section
3.6(e) of the Intercreditor Agreement;
(iv) the fifth Business Day following the
receipt by the Borrower of a
Termination Notice or Special Termination
Notice from the Liquidity Provider
pursuant to Section 6.01 hereof; and (v)
the date on which no Advance is or may
(including by reason of reinstatement as
herein provided) become available for a
Borrowing hereunder.
"TERMINATION NOTICE" means the Notice of Termination
substantially
in the form of Annex V to this
Agreement.
"TRANSFEREE" has the meaning assigned to such term in Section
7.08(b).
"UNAPPLIED WESTLB EARLY TERMINATION ADVANCE" means any portion of
a
WestLB Early Termination Advance which is
not an Applied WestLB Early
Termination Advance.
"UNAPPLIED PROVIDER ADVANCE" means any portion of any Provider
Advance which is not an Applied Provider
Advance.
"UNAPPLIED WESTLB EXPIRATION ADVANCE" means any portion of a
WestLB
Expiration Advance that is not an Applied
WestLB Expiration Advance.
"UNPAID ADVANCE" has the meaning assigned to such term in
Section
2.05.
"WESTLB EARLY TERMINATION ADVANCE" means an Advance made pursuant
to
Section 2.02(b).
<PAGE>
"WESTLB EARLY TERMINATION DATE" means the date specified in a
WestLB
Early Termination Notice delivered by the
Liquidity Provider to the Borrower in
accordance with Section 2.10, which date
shall not be earlier than the 25th day
following the receipt by the Borrower of
such WestLB Early Termination Notice.
"WESTLB EARLY TERMINATION NOTICE" has the meaning assigned to
such
term in Section 2.10.
"WESTLB EARLY TERMINATION NOTICE PERIOD" means the period from
the
40th day to and including the 25th day
prior to each anniversary of the Closing
Date.
"WESTLB TERMINATION DATE" has the meaning assigned to such term
in
Section 2.02(e).
"WESTLB EXPIRATION ADVANCE" means an Advance made pursuant to
Section 2.02(e).
(b) For the purposes of this Agreement, the following terms
shall
have the respective meanings assigned to
such terms in the Intercreditor
Agreement:
"ACCELERATION", "CASH COLLATERAL ACCOUNT", "CERTIFICATE",
"CERTIFICATEHOLDER", "CLOSING DATE",
"CONTINENTAL", "CONTINENTAL BANKRUPTCY
EVENT", "CONTROLLING PARTY", "CORPORATE
TRUST OFFICE", "DELIVERY PERIOD EXPIRY
DATE", "DISTRIBUTION DATE", "DOWNGRADED
FACILITY", "EARLY TERMINATED FACILITY",
"EQUIPMENT NOTES", "FEE LETTER", "FINAL
LEGAL DISTRIBUTION DATE", "FINANCING
AGREEMENT", "INDENTURE", "INVESTMENT
EARNINGS", "LIQUIDITY OBLIGATIONS", "LOAN
TRUSTEE", "MOODY'S", "NON-EXTENDED
FACILITY", "NOTE PURCHASE AGREEMENT",
"OPERATIVE AGREEMENTS", "PARTICIPATION
AGREEMENT", "PERFORMING EQUIPMENT NOTE",
"PERSON", "POOL BALANCE", "RATING
AGENCIES", "RATINGS CONFIRMATION", "REGULAR
DISTRIBUTION DATES", "REPLACEMENT LIQUIDITY
FACILITY", "REQUIRED AMOUNT",
"RESPONSIBLE OFFICER", "SCHEDULED PAYMENT",
"SPECIAL PAYMENT", "STANDARD &
POOR'S", "STATED INTEREST RATE",
"SUB-ACCOUNT", "SUBORDINATION AGENT", "TAXES",
"THRESHOLD RATING", "TRUST", "TRUST
AGREEMENT", "TRUSTEE", "UNDERWRITERS",
"UNDERWRITING AGREEMENT", "WESTLB FEE
LETTER", "WESTLB SUB-ACCOUNT", "WESTLB
EXPIRED FACILITY" and "WRITTEN NOTICE".
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 1:00 p.m.
(New York City time) on the Expiry Date
(unless the obligations of the Liquidity
Provider shall be earlier terminated in
accordance with the terms of Section
2.04(b)) in an aggregate amount at any time
outstanding not to exceed the Maximum
Commitment.
Section 2.02.
MAKING THE ADVANCES. (a) Interest Advances shall be
made in one or more Borrowings by delivery
to the Liquidity Provider of one or
more written and completed Notices of
Borrowing in substantially the form of
<PAGE>
Annex I attached hereto, signed by a
Responsible Officer of the Borrower, in an
amount not exceeding the Maximum Available
Commitment at such time and shall be
used solely for the payment when due of
interest with respect to the
Certificates at the Stated Interest Rate
therefor in accordance with Sections
3.6(a) and 3.6(b) of the Intercreditor
Agreement. Each Interest Advance made
hereunder shall automatically reduce the
Maximum Available Commitment and the
amount available to be borrowed hereunder
by subsequent Advances by the amount
of such Interest Advance (subject to
reinstatement as provided in the next
sentence). Upon repayment to the Liquidity
Provider in full or in part of the
amount of any Interest Advance made
pursuant to this Section 2.02(a), together
with accrued interest thereon (as provided
herein), the Maximum Available
Commitment shall be reinstated by an amount
equal to the amount of such Interest
Advance so repaid but not to exceed the
Maximum Commitment; PROVIDED, HOWEVER,
that the Maximum Available Commitment shall
not be so reinstated at any time if
(x) both a Performing Note Deficiency
exists and a Liquidity Event of Default
shall have occurred and be continuing, or
(y) a Final Advance or a Provider
Advance has been made.
(b) Subject to
Section 2.10, a WestLB Early Termination Advance
shall be made in a single Borrowing if this
Agreement is terminated by the
Liquidity Provider in accordance with
Section 3.6(d)(ii) of the Intercreditor
Agreement (unless a Replacement Liquidity
Facility to replace this Agreement
shall have been delivered to the Borrower
as contemplated by said Section
3.6(d)(ii) within the time period specified
in such Section 3.6(d)(ii)) 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 WestLB Sub-Account of the
Cash Collateral Account in accordance with
Sections 3.6(d)(ii) and 3.6(f) of the
Intercreditor Agreement.
(c) A Downgrade
Advance shall be made in a single Borrowing upon
the occurrence of a Downgrade Event (as
provided for in Section 3.6(c) of the
Intercreditor Agreement) unless a
Replacement Liquidity Facility to replace this
Agreement shall have been previously
delivered to the Borrower in accordance
with 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
WestLB Sub-Account of the Cash Collateral
Account in accordance with Sections
3.6(c) and 3.6(f) of the Intercreditor
Agreement.
(d) A Final
Advance shall be made in a single Borrowing upon the
receipt by the Borrower of a Termination
Notice from the 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 WestLB Sub-Account of the Cash
Collateral Account in accordance with
Sections 3.6(f) and 3.6(i) of the
Intercreditor Agreement.
(e) A WestLB
Expiration Advance shall be made in a single
Borrowing if on December 1, 2015 (the
"WESTLB TERMINATION DATE") the Maximum
Available Commitment hereunder is greater
than zero by delivery to the Liquidity
<PAGE>
Provider of a written and completed Notice
of Borrowing in substantially the
form of Annex VII 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 WestLB
Sub-Account of the Cash Collateral Account
in accordance with Sections 3.6(f) and
3.6(l) of the Intercreditor Agreement.
(f)
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), 2.02(d) or 2.02(e), as the case
may be, given by the Borrower to the
Liquidity Provider. Each Notice of
Borrowing shall be effective upon delivery of
a copy thereof to the Liquidity Provider's
office at the address specified in
Section 7.02. If a Notice of Borrowing is
delivered by the Borrower in respect
of any Borrowing no later than 1:00 p.m.
(New York City time) on a Business Day,
upon satisfaction of the conditions
precedent set forth in Section 4.02 with
respect to a requested Borrowing, the
Liquidity Provider shall make available to
the Borrower, in accordance with its
payment instructions, the amount of such
Borrowing in U.S. dollars and immediately
available funds, before 4:00 p.m. (New
York City time) on such Business Day or on
such later Business Day specified in
such Notice of Borrowing. If a Notice of
Borrowing is delivered by the Borrower
in respect of any Borrowing on a day that
is not a Business Day or after 1:00
p.m. (New York City time) on a Business
Day, upon satisfaction of the conditions
precedent set forth in Section 4.02 with
respect to a requested Borrowing, the
Liquidity Provider shall make available to
the Borrower, in accordance with its
payment instructions, the amount of such
Borrowing in U.S. dollars and in
immediately available funds, before 12:00
noon (New York City time) on the first
Business Day next following the day of
receipt of such Notice of Borrowing or on
such later Business Day specified by the
Borrower in such Notice of Borrowing.
Payments of proceeds of a Borrowing shall
be made by wire transfer of
immediately available funds to the Borrower
in accordance with such wire
transfer instructions as the Borrower shall
furnish from time to time to the
Liquidity Provider for such purpose. Each
Notice of Borrowing shall be
irrevocable and binding on the
Borrower.
(g) Upon the
making of any Advance requested pursuant to a Notice
of Borrowing in accordance with the
Borrower's payment instructions, the
Liquidity Provider shall be fully
discharged of its obligation hereunder with
respect to such Notice of Borrowing, and
the Liquidity Provider shall not
thereafter be obligated to make any further
Advances hereunder in respect of
such Notice of Borrowing to the Borrower or
to any other Person. If the
Liquidity Provider makes an Advance
requested pursuant to a Notice of Borrowing
before 12:00 noon (New York City time) on
the second Business Day after the date
of payment specified in Section 2.02(f),
the Liquidity Provider shall have fully
discharged its obligations hereunder with
respect to such Advance and an event
of default shall not have occurred
hereunder. Following the making of any
Advance pursuant to Section 2.02(b),
2.02(c), 2.02(d) or 2.02(e) hereof to fund
the WestLB Sub-Account of the Cash
Collateral Account, the Liquidity Provider
shall have no interest in or rights to the
Cash Collateral Account, any
Sub-Account thereof, the funds constituting
such Advance or any other amounts
from time to time on deposit in the 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 3.6(f) of the Intercreditor
Agreement and PROVIDED FURTHER, that the
foregoing shall not affect or impair the
rights of the Liquidity Provider to
provide written instructions with respect
to the investment and reinvestment of
amounts in the WestLB Sub-Account of the
Cash Collateral Account to the extent
<PAGE>
provided in Section 2.2(b) of the
Intercreditor Agreement. By paying to the
Borrower proceeds of Advances requested by
the Borrower in accordance with the
provisions of this Agreement, the Liquidity
Provider makes no representation as
to, and assumes no responsibility for, the
correctness or sufficiency for any
purpose of the amount of the Advances so
made and requested.
Section 2.03.
FEES. The Borrower agrees to pay to the Liquidity
Provider the fees set forth in the Fee
Letter applicable to this Agreement.
Section 2.04.
REDUCTIONS OR TERMINATION OF THE MAXIMUM COMMITMENT.
(a) AUTOMATIC
REDUCTION. Promptly following each date on which the
Required Amount with respect to this
Agreement is reduced as a result of a
reduction (or deemed reduction) in the Pool
Balance of the Certificates or
otherwise, the Maximum Commitment shall
automatically be reduced to an amount
equal to such reduced Required Amount (as
calculated by the Borrower); PROVIDED
that on the first Regular Distribution
Date, the Maximum Commitment shall
automatically be reduced to the Required
Amount then in effect with respect to
this Agreement. The Borrower shall give
notice of any such automatic reduction
of the Maximum Commitment to the Liquidity
Provider within two Business Days
thereof. The failure by the Borrower to
furnish any such notice shall not affect
such automatic reduction of the Maximum
Commitment.
(b) TERMINATION.
Upon the making of any Provider Advance or Final
Advance hereunder or the occurrence of the
Termination Date, the obligation of
the Liquidity Provider to make further
Advances hereunder shall automatically
and irrevocably terminate, and the Borrower
shall not be entitled to request any
further Borrowing hereunder.
Section 2.05.
REPAYMENTS OF INTEREST ADVANCES OR THE FINAL
ADVANCE. Subject to Sections 2.06, 2.07 and
2.09 hereof, the Borrower hereby
agrees, without notice of an Advance or
demand for repayment from the Liquidity
Provider (which notice and demand are
hereby waived by the Borrower), to pay, or
to cause to be paid, to the Liquidity
Provider on each date on which the
Liquidity Provider shall make an Interest
Advance or the Final Advance, an
amount equal to (a) the amount of such
Advance (any such Advance, until repaid,
is referred to herein as an "UNPAID
ADVANCE"), 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, an Early Terminated
Facility or a WestLB Expired 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, an Applied
WestLB Early Termination Advance or an
Applied WestLB Expiration 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
<PAGE>
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
WestLB Sub-Account of the Cash Collateral
Account and invested and withdrawn
from the WestLB Sub-Account of the Cash
Collateral Account as set forth in
Sections 3.6(c), 3.6(d), 3.6(e), 3.6(f) and
3.6(l) of the Intercreditor
Agreement. Subject to Sections 2.07 and
2.09, the Borrower agrees to pay to the
Liquidity Provider, on each Regular
Distribution Date, commencing on the first
Regular Distribution Date after the making
of a Provider Advance, interest on
the principal amount of any such Provider
Advance as provided in Section 3.07
hereof; PROVIDED, HOWEVER, that amounts in
respect of a Provider Advance
withdrawn from the WestLB Sub-Account of
the Cash Collateral Account for the
purpose of paying interest on the
Certificates in accordance with Section 3.6(f)
of the Intercreditor Agreement (the amount
of any such withdrawal being (x) in
the case of a Downgrade Advance, an
"APPLIED DOWNGRADE ADVANCE", (y) in the case
of a WestLB Early Termination Advance, an
"APPLIED WESTLB EARLY TERMINATION
ADVANCE" and (z) in the case of a WestLB
Expiration Advance, an "APPLIED WESTLB
EXPIRATION ADVANCE" and, together with an
Applied Downgrade Advance and Applied
WestLB Early Termination Advance, an
"APPLIED PROVIDER ADVANCE") shall
thereafter (subject to Section 2.06(b)) be
treated as an Interest Advance under
this Agreement for purposes of determining
the Applicable Liquidity Rate for
interest payable thereon; PROVIDED FURTHER,
HOWEVER, that if, following the
making of a Provider Advance, the Liquidity
Provider delivers a Termination
Notice to the Borrower pursuant to Section
6.01 hereof, such Provider Advance
shall thereafter be treated as a Final
Advance under this Agreement for purposes
of determining the Applicable Liquidity
Rate for interest payable thereon and
the obligation for repayment thereof.
Subject to Sections 2.07 and 2.09 hereof,
immediately upon the withdrawal of any
amounts from the WestLB Sub-Account of
the Cash Collateral Account pursuant to
Section 3.6(f) of the Intercreditor
Agreement on account of a reduction (or
deemed reduction) in the Required Amount
with respect to such Sub-Account, the
Borrower shall repay to the Liquidity
Provider a portion of the Provider Advances
in a principal amount equal to such
reduction, plus interest on the principal
amount prepaid as provided in Section
3.07 hereof.
(b) At any time
when an Applied Provider Advance (or any portion
thereof) is outstanding, upon the deposit
in the WestLB Sub-Account of the Cash
Collateral Account of any amount pursuant
to clause "third" of Section 2.4(b) of
the Intercreditor Agreement, clause "third"
of Section 3.2 of the Intercreditor
Agreement or clause "fourth" of Section 3.3
of the Intercreditor Agreement (any
such amount being a "REPLENISHMENT AMOUNT")
for the purpose of replenishing or
increasing the balance thereof up to the
Required Amount with respect to such
Sub-Account 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 WestLB Sub-Account
<PAGE>
of the Cash Collateral Account after giving
effect to any Applied Provider
Advance on the date of such replacement
shall be reimbursed to the replaced
Liquidity Provider, but only to the extent
such amounts are necessary to repay
in full to the replaced Liquidity Provider
all amounts owing to it hereunder.
Section 2.07.
PAYMENTS TO THE LIQUIDITY PROVIDER UNDER THE
INTERCREDITOR AGREEMENT. In order to
provide for payment or repayment to the
Liquidity Provider of any amounts
hereunder, the Intercreditor Agreement
provides that amounts available and
referred to in Articles II and III of the
Intercreditor Agreement, to the extent
payable to the Liquidity Provider
pursuant to the terms of the Intercreditor
Agreement (including, without
limitation, Section 3.6(f) of the
Intercreditor Agreement), shall be paid to the
Liquidity Provider in accordance with the
terms thereof. Amounts so paid to the
Liquidity Provider shall be applied by the
Liquidity Provider to Liquidity
Obligations then due and payable in
accordance with the Intercreditor Agreement
and shall discharge in full the
corresponding obligations of the Borrower
hereunder (or, if not provided for in the
Intercreditor Agreement, then in such
manner as the Liquidity Provider shall deem
appropriate).
Section 2.08.
BOOK ENTRIES. The Liquidity Provider shall maintain
in accordance with its usual practice an
account or accounts evidencing the
indebtedness of the Borrower resulting from
Advances made from time to time and
the amounts of principal and interest
payable hereunder and paid from time to
time in respect thereof; PROVIDED, HOWEVER,
that the failure by the Liquidity
Provider to maintain such account or
accounts shall not affect the obligations
of the Borrower in respect of Advances.
Section 2.09.
PAYMENTS FROM AVAILABLE FUNDS ONLY. All payments to
be made by the Borrower under this
Agreement shall be made only from the amounts
that constitute Scheduled Payments, Special
Payments or payments under the
WestLB Fee Letter, Section 9.1 of the
Participation Agreements and Section 6 of
the Note Purchase Agreement and only to the
extent that the Borrower shall have
sufficient income or proceeds therefrom to
enable the Borrower to make payments
in accordance with the terms hereof after
giving effect to the priority of
payments and other applicable provisions
set forth in the Intercreditor
Agreement. The Liquidity Provider agrees
that it will look solely to such
amounts to the extent available for
distribution to it as provided in the
Intercreditor Agreement and this Agreement
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 WestLB Sub-Account of the Cash
Collateral Account shall be available to
the Borrower to make payments under this
Agreement only to the extent and for
the purposes expressly contemplated in
Section 3.6(f) of the Intercreditor
Agreement. Amounts on deposit in the other
Sub-Account in respect of the
Certificates shall not be available to make
payments under this Agreement.
Section 2.10.
WESTLB EARLY TERMINATION NOTICE; WESTLB EARLY
TERMINATION ADVANCE. At any time during the
WestLB Early Termination Notice
Period, the Liquidity Provider shall have
the right in its sole discretion to
terminate its obligations to make Advances
under this Agreement upon not less
than 25 days' written notice (the "WESTLB
EARLY TERMINATION NOTICE") to the
Borrower. If the Liquidity Provider
delivers a WestLB Early Termination Notice
to the Borrower during the WestLB Early
Termination Notice Period (and, in each
<PAGE>
case, if the Liquidity Provider shall not
have been replaced in accordance with
Section 3.6(e) of the Intercreditor
Agreement on or before the expiry of the
WestLB Early Termination Notice Period),
the Borrower shall be entitled at any
time prior to the WestLB Early Termination
Date, to request a WestLB Early
Termination Advance in accordance with
Section 2.02(b) hereof and Section
3.6(d)(ii) of the Intercreditor
Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01.
INCREASED COSTS. The Borrower shall pay to the
Liquidity Provider from time to time such
amounts as may be necessary to
compensate the Liquidity Provider for any
increased costs incurred by the
Liquidity Provider which are attributable
to its making or maintaining any 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 of the Board of
Governors of the Federal Reserve
System), or the adoption or making after
the date of this Agreement of any
interpretations, directives, or
requirements applying to a class of banks
including the Liquidity Provider under any
U.S. federal, state, municipal, or
any foreign laws or regulations (whether or
not having the force of law) by any
court, central bank or monetary authority
charged with the interpretation or
administration thereof (a "REGULATORY
CHANGE"), which: (1) changes the basis of
taxation of any amounts payable to the
Liquidity Provider under this Agreement
in respect of any such Advances or such
obligation (other than with respect to
Excluded Taxes); or (2) imposes or modifies
any reserve, special deposit,
compulsory loan or similar requirements
relating to any extensions of credit or
other assets of, or any deposits with other
liabilities of, the Liquidity
Provider (including any such Advances or
such obligation or any deposits
referred to in the definition of LIBOR Rate
or related definitions).
The Liquidity Provider 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
