SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date
of
Report (Date of earliest event reported):
September
22, 2005
CONTINENTAL
AIRLINES, INC.
(Exact
name of registrant as specified in its charter)
|
Delaware
|
1-10323
|
74-2099724
|
|
(State
or other jurisdiction of incorporation)
|
(Commission
File Number)
|
(IRS
Employer Identification No.)
|
|
1600
Smith Street, Dept. HQSEO, Houston, Texas
|
77002
|
|
|
(Address
of principal executive offices)
|
(Zip
Code)
|
|
|
(713)
324-2950
|
||
|
(Registrant’s
telephone number, including area
code)
|
||
Check
the
appropriate box below if the Form 8−K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o
Soliciting
material pursuant to Rule 14a−12 under the Exchange Act (17 CFR
240.14a−12)
o
Pre−commencement
communications pursuant to Rule 14d−2(b) under the Exchange Act (17 CFR
240.14d−2(b))
o
Pre−commencement
communications pursuant to Rule 13e−4(c) under the Exchange Act (17 CFR
240.13e−4(c))
Item
1.01 Entry
into a Material Definitive Agreement.
On
September 22, 2005, Continental Airlines, Inc. (the “Company”) entered into
Trust Supplement No. 2005-ERJ1, with Wilmington Trust Company, as Pass Through
Trustee, providing for the issuance of $311,010,000 aggregate principal amount
of the Company’s Pass Through Certificates, Series 2005-ERJ1 (the
“Certificates”). The Certificates and other securities of the Company were
registered for offer and sale on a delayed or continuous basis pursuant to
Rule
415 under the Securities Act of 1933, as amended (the “Securities Act”), under
the Company’s registration statement on Form S-3 (File No. 333-67886) (the
“Registration Statement”), which was declared effective by the Commission on
August 23, 2001. For a more detailed description of the agreements and
instruments entered into by the Company in connection with such transactions,
see the disclosure under the captions “Prospectus Supplement Summary”,
“Description of the Certificates”, “Description of the Deposit Agreement”,
“Description of the Escrow Agreement”, “Description of the Liquidity Facility”,
“Description of the Intercreditor Agreement”, “Description of the Equipment
Notes” and “Underwriting” contained in the Company’s final Prospectus
Supplement, dated September 14, 2005, to the Prospectus, dated August 23, 2001,
filed with the Securities and Exchange Commission on September 16, 2005 pursuant
to Rule 424(b) under the Securities Act, which disclosure is hereby incorporated
herein by reference.
This
Current Report is also being filed for the purpose of filing as exhibits to
the
Registration Statement the documents listed in Item 9.01 below, which are hereby
incorporated by reference in the Registration Statement.
Item
9.01. Financial Statements and Exhibits.
(d)Exhibits.
The Exhibit Index attached to this Current Report is hereby incorporated by
reference. The documents listed on the Exhibit Index are filed as Exhibits
with
reference to the Registration Statement. The Registration Statement and the
final Prospectus Supplement, dated September 14, 2005, to the Prospectus, dated
August 23, 2001, relate to the offering of the
Certificates.
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, Continental
Airlines, Inc. has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
|
CONTINENTAL
AIRLINES, INC.
|
||
|
September
28, 2005
|
By:
|
/s/ Jennifer L. Vogel |
|
Jennifer
L. Vogel
|
||
|
Senior
Vice President, General Counsel
|
||
|
and
Secretary
|
||
EXHIBIT
INDEX
|
1.1
|
Underwriting
Agreement, dated September 14, 2005, among Citigroup Global Markets
Inc.,
as Underwriter, Citibank, N.A., as Depositary, Embraer-Empresa Brasileira
de Aeroná;utica S.A. and Continental Airlines,
Inc.
|
|
4.1
|
Trust
Supplement No. 2005-ERJ1, dated as of September 22, 2005, between
Wilmington Trust Company, as Trustee, and Continental Airlines, Inc.
to
Pass Through Trust Agreement, dated as of September 25,
1997
|
|
4.2
|
Revolving
Credit Agreement (2005-ERJ1), dated as of September 22, 2005, between
Wilmington Trust Company, as Subordination Agent, as Borrower, and
Landesbank Baden-Wü;rttemberg, as Liquidity
Provider
|
|
4.3
|
Intercreditor
Agreement, dated as of September 22, 2005, among Wilmington Trust
Company,
as Trustee, Landesbank Baden-Wü;rttemberg, as Liquidity Provider, and
Wilmington Trust Company, as Subordination Agent and
Trustee
|
|
4.4
|
Deposit
Agreement, dated as of September 22, 2004, between Wells Fargo Bank
Northwest, National Association, as Escrow Agent, and Citibank, N.A.,
as
Depositary
|
|
4.5
|
Escrow
and Paying Agent Agreement, dated as of September 22, 2005, among
Wells
Fargo Bank Northwest, National Association, as Escrow Agent, Citigroup
Global Markets Inc., as Underwriter, Wilmington Trust Company, as
Trustee,
and Wilmington Trust Company, as Paying
Agent
|
|
4.6
|
Note
Purchase Agreement, dated as of September 22, 2005, among Continental
Airlines, Inc., Wilmington Trust Company, as Trustee, Subordination
Agent
and Paying Agent, and Wells Fargo Bank Northwest, National Association,
as
Escrow Agent
|
|
4.7
|
Form
of Participation Agreement (Participation Agreement among Continental
Airlines, Inc., as Lessee, [ ______ ], as Owner Participant, Wells
Fargo
Bank Northwest, National Association, as Owner Trustee and Lessor,
Wilmington Trust Company, as Mortgagee, Subordination Agent and Trustee,
and Embraer-Empresa Brasileira de Aeroná;utica S.A.) (Exhibit A to Note
Purchase Agreement)
|
|
4.8
|
Form
of Lease (Lease between Wells Fargo Bank Northwest, National Association,
as Owner Trustee and Lessor, and Continental Airlines, Inc., as Lessee)
(Exhibit B to Note Purchase
Agreement)
|
|
4.9
|
Form
of Indenture (Trust Indenture and Mortgage between Wells Fargo Bank
Northwest, National Association, as Owner Trustee,
and
|
2
|
|
Wilmington
Trust Company, as Mortgagee) (Exhibit C to Note Purchase
Agreement)
|
|
4.10
|
Form
of Trust Agreement ([Amended and Restated] Trust Agreement between
[
______ ], as Owner Participant, and Wells Fargo Bank Northwest, National
Association, as Owner Trustee) (Exhibit E to Note Purchase
Agreement)
|
|
4.11
|
9.798%
Continental Airlines Pass Through Certificate, Series 2005-ERJ1,
Certificate No. 1
|
|
23.1
|
Consent
of Aviation Specialists Group, Inc., dated September 8,
2005
|
|
23.2
|
Consent
of BACK Aviation Solutions, dated September
8, 2005
|
|
23.3
|
Consent
of BK Associates, Inc., dated September 8,
2005
|
|
23.4
|
Consent
of Aviation Specialists Group, Inc., dated September 13,
2005
|
|
23.5
|
Consent
of BACK Aviation Solutions, dated September 13,
2005
|
|
23.6
|
Consent
of BK Associates, Inc., dated September 13,
2005
|
EXECUTION
COPY
CONTINENTAL
AIRLINES, INC.
Pass
Through Certificates, Series 2005-ERJ1
UNDERWRITING
AGREEMENT
September
14, 2005
Citigroup
Global Markets Inc.
388
Greenwich Street
New
York,
New York 10013
Ladies
and Gentlemen:
At
the
request of Embraer - Empresa
Brasileira de Aeronáutica S.A., a Brazilian corporation ("Embraer"),
Continental Airlines, Inc., a Delaware corporation (the "Company"),
proposes that Wilmington Trust Company, as trustee under the Class A Trust
(as
defined below) (the "Trustee"),
issue
and sell to Citigroup Global Markets Inc. (the "Underwriter")
its
pass through certificates in the aggregate principal amount and with the
interest rate and final maturity date set forth on Schedule I hereto (the
"Offered
Certificates")
on the
terms and conditions stated herein.
The
Offered Certificates will be issued pursuant to a Pass Through Trust Agreement,
dated as of September 25, 1997 (the "Basic
Agreement"),
between the Company and the Trustee, as supplemented with respect to the
issuance of the Offered Certificates by a Pass Through Trust Supplement to
be
dated as of the Closing Date (as defined below) (the "Trust
Supplement"),
between the Company and the Trustee (the Basic Agreement as supplemented
by such
Trust Supplement being referred to herein as the "Pass
Through Trust Agreement").
The
Trust Supplement is related to the creation and administration of the 2005-ERJ1
Pass Through Trust (the "Class A
Trust").
The
cash
proceeds of the offering of Offered Certificates by the Class A Trust, to
the
extent not used to purchase Equipment Notes (as defined in the Note Purchase
Agreement (as defined below)) on the Closing Date, will be paid to Wells
Fargo
Bank Northwest, National Association, as escrow agent (the "Escrow
Agent"),
under
an Escrow and Paying Agent Agreement among the Escrow Agent, the Underwriter,
the Trustee and Wilmington Trust Company, as paying agent (the "Paying
Agent"),
for
the benefit of the holders of the Offered Certificates (the "Escrow
Agreement").
The
Escrow Agent will deposit such cash proceeds
Page
1
of
30
(each,
a
"Deposit")
with
Citibank, N.A. (the "Depositary")
in
accordance with a Deposit Agreement relating to the Class A Trust (the
"Deposit
Agreement"),
and,
subject to the fulfillment of certain conditions, will withdraw Deposits
upon
request to allow the Trustee to purchase Equipment Notes from time to time
pursuant to a Note Purchase Agreement to be dated as of the Closing Date
(the
"Note
Purchase Agreement")
among
the Company, Wilmington Trust Company, as Trustee of the Class A Trust, as
Subordination Agent (as hereinafter defined) and as Paying Agent, and the
Escrow
Agent. The Escrow Agent will issue receipts to be attached to each related
Offered Certificate ("Escrow
Receipts")
representing each holder's fractional undivided interest in amounts deposited
with such Escrow Agent with respect to the Offered Certificates and will
pay to
such holders through the Paying Agent interest accrued on the Deposits and
received by such Paying Agent pursuant to the Deposit Agreement at a rate
per
annum equal to the interest rate applicable to the Offered
Certificates.
Certain
amounts of interest payable on the Offered Certificates will be entitled
to the
benefits of a liquidity facility. Landesbank Baden-Württemberg (the
"Liquidity
Provider")
will
enter into a revolving credit agreement with respect to the Class A Trust
(the
"Liquidity
Facility")
to be
dated as of the Closing Date for the benefit of the holders of the Offered
Certificates issued by such Class A Trust. The Liquidity Provider and the
holders of the Offered Certificates will be entitled to the benefits of an
Intercreditor Agreement to be dated as of the Closing Date (the "Intercreditor
Agreement")
among
the Trustee, Wilmington Trust Company, as subordination agent and trustee
thereunder (the "Subordination
Agent"),
and
the Liquidity Provider.
The
Company has filed with the Securities and Exchange Commission (the "Commission")
a
shelf registration statement on Form S-3 (File No. 333-67886) relating to
pass through certificates (such registration statement (including the respective
exhibits thereto and the respective documents filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended, and
the
rules and regulations of the Commission thereunder (collectively, the
"Exchange
Act"),
that
are incorporated by reference therein), as amended at the date hereof, being
herein referred to as the "Registration
Statement")
and
the offering thereof from time to time in accordance with Rule 415 of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities
Act").
The
Registration Statement has been declared effective by the Commission. A final
prospectus supplement reflecting the terms of the Offered Certificates, the
terms of the offering thereof and other matters relating to the Offered
Certificates, as further specified in Section 4(d) hereof, will be prepared
and filed together with the Basic Prospectus referred to below pursuant to
Rule
424 under the Securities Act (such prospectus supplement, in the form first
filed on or after the date hereof pursuant to Rule 424, being herein referred
to
as the "Prospectus
Supplement"
and any
such prospectus supplement in the form or forms filed prior to the filing
of the
Prospectus Supplement being herein referred to as a "Preliminary
Prospectus Supplement").
The
Basic Prospectus included in the Registration Statement (the "Basic
Prospectus")
and
relating to all offerings of pass through certificates under the Registration
Statement, as supplemented by the Preliminary Prospectus Supplement or the
Prospectus Supplement, as the case may be, and, in either case, including
the
documents incorporated by reference therein, is herein called, the "Preliminary
Prospectus"
or the
"Prospectus",
as
applicable, except that, if the Basic Prospectus is amended or supplemented
on
or prior to the date of the Preliminary Prospectus Supplement
or
Page 2
of
30
the
date
on which the Prospectus Supplement is first filed pursuant to Rule 424, the
terms "Preliminary
Prospectus"
and
"Prospectus"
shall
refer to the Basic Prospectus as so amended or supplemented and as supplemented
by the Preliminary Prospectus Supplement or the Prospectus Supplement, as
applicable. Any reference herein to the terms "amendment"
or
"supplement"
with
respect to the Prospectus or any Preliminary Prospectus shall be deemed to
refer
to and include any documents filed with the Commission under the Exchange
Act
after the date the Prospectus is filed with the Commission, or the date of
such
Preliminary Prospectus, as the case may be, and incorporated therein by
reference pursuant to Item 12 of Form S-3 under the Securities Act.
Capitalized
terms not otherwise defined in this Underwriting Agreement (the "Agreement")
shall
have the meanings specified therefor in the Pass Through Trust Agreement,
in the
Note Purchase Agreement or in the Intercreditor Agreement; provided
that, as
used in this Agreement, the term "Operative
Agreements"
shall
mean the Deposit Agreement, the Escrow Agreement, the Intercreditor Agreement,
the Liquidity Facility, the Pass Through Trust Agreement and the Financing
Agreements (as defined in the Note Purchase Agreement).
1. Representations
and Warranties.
(a) The
Company represents and warrants to, and agrees with the Underwriter that:
(i) The
Company meets the requirements for use of Form S-3 under the Securities
Act; the Registration Statement has become effective; and, on the original
effective date of the Registration Statement, the Registration Statement
complied in all material respects with the requirements of the Securities
Act.
On the original effective date of the Registration Statement, the Registration
Statement did not include any untrue statement of a material fact or omit
to
state any material fact required to be stated therein or necessary to make
the
statements therein not misleading, and on the date hereof and on the Closing
Date, the Prospectus, as amended and supplemented, if the Company shall have
furnished any amendment or supplement thereto, does not and will not include
an
untrue statement of a material fact and does not and will not omit to state
a
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading. The preceding
sentence does not apply to (x) statements in or omissions from the
Registration Statement, the Preliminary Prospectus or the Prospectus based
upon
(A) written information furnished to the Company by the Underwriter expressly
for use therein ("Underwriter
Information"),
(B) the Embraer Information (as defined in Annex I) or (C) the Depositary
Information (as hereinafter defined) or (y) statements or omissions in that
part
of each Registration Statement which shall constitute the Statement of
Eligibility of the Trustee under the Trust Indenture Act of 1939, as amended
(the "Trust
Indenture Act"),
on
Form T-1.
(ii) The
documents incorporated by reference in the Prospectus pursuant to Item 12
of
Form S-3 under the Securities Act, at the time they were or hereafter, during
the period mentioned in Section 4(a) hereof, are filed with the Commission,
complied or will comply, as the case may be, in all material respects with
the
requirements of the Exchange Act.
Page 3
of
30
(iii) The
Company has been duly incorporated and is an existing corporation in good
standing under the laws of the State of Delaware, with corporate power and
authority to own, lease and operate its property and to conduct its business
as
described in the Prospectus; and the Company is duly qualified to do business
as
a foreign corporation in good standing in all other jurisdictions in which
its
ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not have
a
material adverse effect on the condition (financial or otherwise), business,
properties or results of operations of the Company and its consolidated
subsidiaries taken as a whole (a "Continental
Material Adverse Effect").
(iv) Each
of
Continental Micronesia, Inc. and Air Micronesia Inc. (together, the
"Subsidiaries")
has
been duly incorporated and is an existing corporation in good standing under
the
laws of the jurisdiction of its incorporation, with corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus; and each Subsidiary is duly qualified to
do
business as a foreign corporation in good standing in all other jurisdictions
in
which its ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would not
have a
Continental Material Adverse Effect; all of the issued and outstanding capital
stock of each Subsidiary has been duly authorized and validly issued and
is
fully paid and nonassessable; and, except as described in the Prospectus,
each
Subsidiary's capital stock owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
(v) Except
as
described in the Prospectus, the Company is not in default in the performance
or
observance of any obligation, agreement, covenant or condition contained
in any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which it is a party or by which it may be bound or to which any of its
properties may be subject, except for such defaults that would not have a
Continental Material Adverse Effect. The execution, delivery and performance
of
this Agreement and the Operative Agreements to which the Company is or will
be a
party and the consummation by Continental of the transactions contemplated
herein and therein have been duly authorized by all necessary corporate action
of the Company and will not result in any breach of any of the terms, conditions
or provisions of, or constitute a default under, or result in the creation
or
imposition of any lien, charge or encumbrance (other than any lien, charge
or
encumbrance created under any Operative Agreement) upon any property or assets
of the Company pursuant to any indenture, loan agreement, contract, mortgage,
note, lease or other instrument to which the Company is a party or by which
the
Company may be bound or to which any of the property or assets of the Company
is
subject, which breach, default, lien, charge or encumbrance, individually
or in
the aggregate, would have a Continental Material Adverse Effect, nor will
any
such execution, delivery or performance result in any violation of the
provisions of the charter or by-laws of the Company or any statute, any rule,
regulation or order of any governmental agency or body or any court having
jurisdiction over the Company.
(vi) No
consent, approval, authorization, or order of, or filing with, any governmental
agency or body or any court is required for the valid
authorization,
Page 4
of
30
execution
and delivery by the Company of this Agreement and the Operative Agreements
to
which it is or will be a party and for the consummation of the transactions
contemplated herein and therein, except (x) such as may be required under
the
Securities Act, the Trust Indenture Act, the securities or "blue sky" or
similar
laws of the various states and of foreign jurisdictions or rules and regulations
of the National Association of Securities Dealers, Inc., and (y) filings
or
recordings with the Federal Aviation Administration (the "FAA")
and
under the UCC or other laws in effect in any applicable jurisdiction governing
the perfection of security interests, which filings or recordings referred
to in
this clause (y), with respect to any particular set of Financing Agreements,
shall have been made, or duly presented for filing or recordation, or shall
be
in the process of being duly filed or filed for recordation, on or prior
to the
applicable "Closing Date", as defined in such Financing Agreements (the
"Funding
Date").
(vii) This
Agreement has been duly executed and delivered by the Company and the Operative
Agreements to which the Company will be a party will be duly executed and
delivered by the Company on or prior to the Closing Date or the applicable
Funding Date, as the case may be.
(viii) The
Operative Agreements to which the Company is or will be a party, when duly
executed and delivered by the Company, assuming that such Operative Agreements
have been duly authorized, executed and delivered by, and constitute the
legal,
valid and binding obligations of, each other party thereto, will constitute
valid and binding obligations of the Company enforceable in accordance with
their terms, except (w) as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws now or hereafter
in
effect relating to creditors' rights generally, (x) as enforcement thereof
is
subject to general principles of equity (regardless of whether enforcement
is
considered in a proceeding in equity or at law), (y) that the enforceability
of
the Leases may also be limited by applicable laws which may affect the remedies
provided therein but which do not affect the validity of the Leases or make
such
remedies inadequate for the practical realization of the benefits intended
to be
provided thereby and (z) with respect to indemnification and contribution
provisions, as enforcement thereof may be limited by applicable law. The
Basic
Agreement as executed is substantially in the form filed as an exhibit to
the
Company's current report on Form 8-K dated September 25, 1997 and has been
duly
qualified under the Trust Indenture Act.
(ix) The
consolidated financial statements of the Company incorporated by reference
in
the Prospectus, together with the related notes thereto, present fairly in
all
material respects the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the consolidated results of operations
and cash flows of the Company and its consolidated subsidiaries for the periods
specified. Such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved, except as otherwise stated therein and except
that unaudited financial statements do not have all required footnotes. The
financial statement schedules, if any, incorporated by reference in the
Prospectus present the information required to be stated
therein.
Page 5
of
30
(x) The
Company is a "citizen of the United States" within the meaning of Section
40102(a)(15) of Title 49 of the United States Code, as amended, and holds
an air
carrier operating certificate issued pursuant to Chapter 447 of Title 49
of the
United States Code, as amended, for aircraft capable of carrying 10 or more
individuals or 6,000 pounds or more of cargo. All of the outstanding shares
of
capital stock of the Company have been duly authorized and validly issued
and
are fully paid and non-assessable.
(xi) Except
as
disclosed in the Prospectus, the Company and the Subsidiaries have good and
marketable title to all real properties and all other properties and assets
owned by them, in each case free from liens, encumbrances and defects except
where the failure to have such title would not have a Continental Material
Adverse Effect; and except as disclosed in the Prospectus, the Company and
the
Subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would have a Continental Material
Adverse Effect.
(xii) Except
as
disclosed in the Prospectus, there is no action, suit or proceeding before
or by
any governmental agency or body or court, domestic or foreign, now pending
or,
to the knowledge of the Company, threatened against the Company or any of
its
subsidiaries or any of their respective properties that individually (or
in the
aggregate in the case of any class of related lawsuits), could reasonably
be
expected to result in a Continental Material Adverse Effect or that could
reasonably be expected to materially and adversely affect the consummation
of
the transactions contemplated by this Agreement or the Operative
Agreements.
(xiii) Except
as
disclosed in the Prospectus, no labor dispute with the employees of the Company
or any subsidiary exists or, to the knowledge of the Company, is imminent
that
could reasonably be expected to have a Continental Material Adverse
Effect.
(xiv) Each
of
the Company and the Subsidiaries has all necessary consents, authorizations,
approvals, orders, certificates and permits of and from, and has made all
declarations and filings with, all federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and other
tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, except to
the
extent that the failure to so obtain, declare or file would not have a
Continental Material Adverse Effect.
(xv) Except
as
disclosed in the Prospectus, (x) neither the Company nor any of the
Subsidiaries is in violation of any statute, rule, regulation, decision or
order
of any governmental agency or body or any court, domestic or foreign, relating
to the use, disposal or release of hazardous or toxic substances (collectively,
"environmental
laws"),
owns
or operates any real property contaminated with any substance that is subject
to
any environmental laws, or is subject to any claim relating to any environmental
laws, which violation, contamination, liability or claim individually or
in the
aggregate is reasonably expected to have a Continental Material Adverse Effect,
and (y) the Company is not
Page 6
of
30
aware
of
any pending investigation which might lead to such a claim that is reasonably
expected to have a Continental Material Adverse Effect.
(xvi) The
accountants that examined and issued an auditors' report with respect to
the
consolidated financial statements of the Company and the financial statement
schedules of the Company, if any, included or incorporated by reference in
the
Registration Statement are independent public accountants within the meaning
of
the Securities Act.
(xvii) The
Company is not an "investment company", or an entity "controlled" by an
"investment company", within the meaning of the Investment Company Act of
1940,
as amended (the "Investment
Company Act"),
required to register under the Investment Company Act.
(xviii) No
Appraiser is an affiliate of the Company or, to the knowledge of the Company,
has a substantial interest, direct or indirect, in the Company. To the knowledge
of the Company, none of the officers and directors of any of such Appraisers
is
connected with the Company or any of its affiliates as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions.
(xix) The
Company (A) makes and keeps books, records and accounts, which, in reasonable
detail, accurately and fairly reflect the transactions and dispositions of
the
material assets of the Company and its consolidated subsidiaries and (B)
maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (1) transactions are executed in accordance with
management’s general or specific authorization; (2) transactions are recorded as
necessary: (x) to permit preparation of financial statements in conformity
with
generally accepted accounting principles or any other criteria applicable
to
such statements and (y) to maintain accountability for assets; (3) access
to material assets is permitted only in accordance with management’s general or
specific authorization; and (4) the recorded accountability for material
assets
is compared with the existing material assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(b) The
Depositary represents and warrants to, and agrees with, the Underwriter and
the
Company that:
(i) The
information pertaining to the Depositary set forth under the caption
"Description of the Deposit Agreement -- Depositary" (the "Depositary
Information")
in the
Prospectus, as amended and supplemented, if the Company shall have furnished
any
amendment or supplement thereto, does not, and will not as of the Closing
Date,
contain any untrue statement of a material fact.
(ii) The
Depositary is duly organized and validly existing as a national banking
association under the laws of the United States and is duly qualified to
conduct
banking business in the State of New York,
with
corporate power and authority to own, lease and operate its property, to
conduct
its business as described in the Depositary
Page 7
of
30
Information
and to enter into and perform its obligations under this Agreement and the
Deposit Agreement.
(iii) No
consent, approval, authorization, or order of, or filing with any governmental
agency or body or any court is required for the valid authorization, execution
and delivery by the Depositary of this Agreement and the Deposit Agreement
and
for the consummation by the Depositary of the transactions contemplated herein
and therein, except such as may have been obtained.
(iv) The
execution and delivery by the Depositary of this Agreement and the Deposit
Agreement and the consummation by the Depositary of the transactions
contemplated herein and therein have been duly authorized by the Depositary
and
will not violate any law, governmental rule or regulation or any of its
organizational documents or any order, writ, injunction or decree of any
court
or governmental agency against it or the provisions of any indenture, loan
agreement, contract or other instrument to which it is a party or is
bound.
(v) This
Agreement has been duly executed and delivered by the Depositary, and the
Deposit Agreement will be duly executed and delivered by the Depositary on
or
prior to the Closing Date.
(vi) The
Deposit Agreement, when duly executed and delivered by the Depositary, assuming
that such Deposit Agreement has been duly authorized, executed and delivered
by,
and constitutes the legal, valid and binding obligations of, the Escrow Agent,
will constitute the legal, valid and binding obligations of the Depositary
enforceable in accordance with its terms, except (x) as enforcement thereof
may
be limited by bankruptcy, insolvency (including, without limitation, all
laws
relating to fraudulent transfers), reorganization, moratorium or other similar
laws now or hereinafter in effect relating to creditors' rights generally
and
(y) as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at
law).
(c) Embraer
represents and warrants to, and agrees with, the Underwriter and the Company
that:
(i) (x)
As of
the date hereof, the Registration Statement does not include any untrue
statement of a material fact or omit to state any material fact required
to be
stated therein or necessary to make the statements therein not misleading,
(y)
as of its date, the Preliminary Prospectus did not include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and (z)
on
the date hereof and on the Closing Date, the Prospectus, as amended and
supplemented, if the Company shall have furnished any amendment or supplement
thereto, does not and will not include an untrue statement of a material
fact
and does not and will not omit to state a material fact necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading. The preceding sentence does not apply to statements
in or omissions from
Page 8
of
30
the
Registration Statement, the Preliminary Prospectus or the Prospectus based
upon
(A) the Continental Information (as defined in Annex I), (B) the
Underwriter Information or (C) the Depositary Information.
(ii) Each
of
Embraer and Refine, Inc. ("Refine")
has
been duly organized and is a corporation validly existing in good standing
under
the laws of its jurisdiction of incorporation or organization, with corporate
power and authority to own, lease and operate its properties, conduct its
business as currently conducted and perform its obligations under this Agreement
and under the Operative Agreements to which it is or will be a
party.
(iii) No
consent, approval, authorization, or order of, or filing with any governmental
agency or body or any court is required for the valid authorization, execution
and delivery by Embraer of this Agreement or by Embraer or Refine of the
Operative Agreements to which either Embraer or Refine is or will be a party
and
for the performance of their respective obligations hereunder and thereunder,
as
applicable, except such as may have been obtained.
(iv) The
execution and delivery by Embraer of this Agreement and by Embraer and Refine
of
the Operative Agreements to which either Embraer or Refine is or will be
a party
and the performance of their respective obligations hereunder and thereunder
have been duly authorized by Embraer and Refine, as applicable, and will
not
violate (w) any law, governmental rule or regulation, (x) any of their
respective organizational documents, (y) any order, writ, injunction or decree
of any court or governmental agency against either Embraer or Refine, as
applicable, or (z) except to the extent that any such violation would not
have a
material adverse effect on the condition (financial or otherwise), business,
properties or results of operations of Embraer and its consolidated subsidiaries
taken as a whole or Refine, as applicable, the provisions of any indenture,
loan
agreement, contract or other instrument to which either Embraer or Refine
is a
party or is bound.
(v) This
Agreement has been duly executed and delivered by Embraer.
(vi) (1)
The
Operative Agreements to which Embraer is or will be a party, when duly executed
and delivered by Embraer, assuming that such Operative Agreements have been
duly
authorized, executed and delivered by, and constitute the legal, valid and
binding obligations of, each other party thereto, will constitute valid and
binding obligations of Embraer enforceable in accordance with their terms
and
(2) the Operative Agreements to which Refine is or will be a party, when
duly
executed and delivered by Refine, assuming that such Operative Agreements
have
been duly authorized, executed and delivered by, and constitute the legal,
valid
and binding obligations of, each other party thereto, will constitute valid
and
binding obligations of Refine enforceable in accordance with their terms,
except, in the case of both (1) and (2), (x) as enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally,
(y) as
enforcement thereof is
Page 9
of
30
subject
to general principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law) and (z) with respect to indemnification
and
contribution provisions, as enforcement thereof may be limited by applicable
law.
(vii) On
or
prior to the Closing Date, the issuance of the Offered Certificates will
be duly
authorized by the Trustee. When duly executed, authenticated, issued and
delivered in the manner provided for in the Pass Through Trust Agreement
and
sold and paid for as provided in this Agreement, the Offered Certificates
will
be legally and validly issued and will be entitled to the benefits of the
Pass
Through Trust Agreement; and when executed, authenticated, issued and delivered
in the manner provided for in the Escrow Agreement, the Escrow Receipts will
be
legally and validly issued and will be entitled to the benefits of the Escrow
Agreement.
(viii) The
Class
A Trust is not an "investment company", or an entity "controlled" by an
"investment company", within the meaning of the Investment Company Act, required
to register under the Investment Company Act; and after giving effect to
the
offering and sale of the Offered Certificates and the application of the
proceeds thereof as described in the Prospectus, the Class A Trust will not
be,
nor will the escrow arrangement contemplated by the Escrow Agreement result
in
the creation of, an "investment company", or an entity "controlled" by an
"investment company", as defined in the Investment Company Act, in each case
required to register under the Investment Company Act.
(ix) The
Offered Certificates, this Agreement and the Operative Agreements will conform
in all material respects to the descriptions thereof contained in the Prospectus
(other than, in the case of the Financing Agreements, as described in the
Prospectus).
(x) The
information provided by Embraer to each of Aviation Specialists Group, Inc.
("ASG"),
BACK
Aviation Solutions ("BACK")
and BK
Associates, Inc. ("BK"
and,
together with ASG and BACK, the "Appraisers")
for
use by the Appraisers in preparation of their respective reports relating
to the
Aircraft, dated as of August 18, 2005, August 18, 2005 and August 25, 2005,
respectively, taken as a whole with respect to each such report, did not
contain
an untrue statement of material fact or omit to state a material fact necessary
to make such information not misleading.
(d) The
parties agree that any certificate signed by a duly authorized officer of
the
Company and delivered to the Underwriter, or to counsel for the Underwriter,
on
the Closing Date and in connection with this Agreement or the offering of
the
Offered Certificates, shall be deemed a representation and warranty by (and
only
by) the Company to the Underwriter as to the matters covered
thereby.
2. Purchase,
Sale and Delivery of Offered Certificates.
(a) On
the basis of the representations, warranties and agreements herein contained,
but subject to the terms and the conditions herein set forth, the Company
agrees
to cause the Trustee to sell to the Underwriter, and the Underwriter agrees
to
purchase from the Trustee, at a purchase price of 100% of the
Page 10
of
30
principal
amount thereof, the aggregate principal amount of Offered Certificates.
Concurrently with the issuance of the Offered Certificates, the Escrow Agent
shall issue and deliver to the Trustee the Escrow Receipts in accordance
with
the terms of the Escrow Agreement, which Escrow Receipts shall be attached
to
the related Offered Certificates.
(b) The
Company is advised by the Underwriter that the Underwriter proposes to make
a
public offering of the Offered Certificates as set forth in the Prospectus
Supplement as soon after this Agreement has been entered into as in the
Underwriter’s judgment is advisable. The Company is further advised by the
Underwriter that the Offered Certificates are to be offered to the public
initially at 100% of their principal amount -- the public offering price
-- plus
accrued interest, if any, and to certain dealers selected by the Underwriter
at
concessions not in excess of the concessions set forth in the Prospectus,
and
that the Underwriter may allow, and such dealers may reallow, concessions
not in
excess of the concessions set forth in the Prospectus to certain other
dealers.
(c) As
underwriting commission and other compensation to the Underwriter for its
commitments and obligations hereunder in respect of the Offered Certificates,
including the undertakings to distribute the Offered Certificates, Embraer
will
pay to the Underwriter the amount set forth in Schedule II hereto. Such payment
will be made on the Closing Date simultaneously with the issuance and sale
of
the Offered Certificates (with attached Escrow Receipts) to the Underwriter.
Payment of such compensation shall be made by Federal funds check or by wire
transfer of immediately available funds.
(d) Delivery
of and payment for the Offered Certificates (with attached Escrow Receipts)
shall be made at the offices of Hughes Hubbard & Reed LLP at One Battery
Park Plaza, New York, New York 10004 at 10:00 A.M. on September 22, 2005
or such
other date, time and place as may be agreed upon by the Company and the
Underwriter (such date and time of delivery and payment for the Offered
Certificates (with attached Escrow Receipts) being herein called the
"Closing
Date").
Delivery of the Offered Certificates (with attached Escrow Receipts) issued
by
the Class A Trust shall be made to Citigroup's account at The Depository
Trust
Company ("DTC")
for
the account of the Underwriter against payment by the Underwriter of the
purchase price thereof. Payment for the Offered Certificates issued by the
Class
A Trust and the related Escrow Receipts attached thereto shall be made by
the
Underwriter by wire transfer of immediately available funds to the accounts
and
in the manner specified in the Escrow Agreement (provided,
that if
the Company notifies the Underwriter that a Funding Date is occurring on
the
Closing Date, a portion of such payment in the amount specified by the Company
shall be paid to the accounts and in the manner specified in the related
Participation Agreement). The Offered Certificates (with attached Escrow
Receipts) issued by the Class A Trust shall be in the form of one or more
fully
registered global Offered Certificates, and shall be deposited with the Trustee
as custodian for DTC and registered in the name of Cede & Co.
(e) The
Company agrees to have the Offered Certificates (with attached Escrow Receipts)
available for inspection and checking by the Underwriter in New York, New
York
not later than 1:00 P.M. on the business day prior to the Closing
Date.
Page
11
of
30
3. Conditions
of Underwriter's Obligations.
The
obligations of the Underwriter to purchase and pay for the Offered Certificates
pursuant to this Agreement are subject to the following conditions:
(a) On
the
Closing Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the Securities Act and no proceedings
therefor shall have been instituted or threatened by the
Commission.
(b) On
the
Closing Date, the Underwriter shall have received an opinion of Hughes Hubbard
& Reed LLP, as counsel for the Company, dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriter and substantially to
the
effect set forth in Exhibit A hereto.
(c) On
the
Closing Date, the Underwriter shall have received an opinion of the General
Counsel of the Company, dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriter and substantially to the effect set forth
in
Exhibit B hereto.
(d) On
the
Closing Date, the Underwriter shall have received an opinion of Richards,
Layton
& Finger, P.A., counsel for Wilmington Trust Company, individually and as
Trustee, Subordination Agent and Paying Agent, dated the Closing Date, in
form
and substance reasonably satisfactory to the Underwriter and substantially
to
the effect set forth in Exhibit C hereto.
(e) On
the
Closing Date, the Underwriter shall have received an opinion of Ray Quinney
& Nebeker P.C., counsel for the Escrow Agent, dated the Closing Date, in
form and substance reasonably satisfactory to the Underwriter and substantially
to the effect set forth in Exhibit D hereto.
(f) On
the
Closing Date, the Underwriter shall have received an opinion of in-house
counsel
for Landesbank
Baden-Württemberg,
as the
Liquidity Provider, dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriter and substantially to the effect set forth
in
Exhibit E hereto.
(g) On
the
Closing Date, the Underwriter shall have received an opinion of Milbank,
Tweed,
Hadley & McCloy LLP, special New York counsel for the Liquidity Provider,
dated the Closing Date, in form and substance reasonably satisfactory to
the
Underwriter and substantially to the effect set forth in Exhibit F
hereto.
(h) On
the
Closing Date, the Underwriter shall have received an opinion of in-house
counsel
for the Depositary, dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriter and substantially to the effect set forth
in
Exhibit G hereto.
(i) On
the
Closing Date, the Underwriter shall have received an opinion of Patterson,
Belknap, Webb & Tyler LLP, special New York counsel for the
Depositary,
Page
12
of
30
dated
the
Closing Date, in form and substance reasonably satisfactory to the Underwriter
and substantially to the effect set forth in Exhibit H hereto.
(j) On
the
Closing Date, the Underwriter shall have received an opinion of Katten Muchin
Rosenman LLP, special New York counsel for Embraer, dated the Closing Date,
in
form and substance reasonably satisfactory to the Underwriter and substantially
to the effect set forth in Exhibit I hereto.
(k) On
the
Closing Date, the Underwriter shall have received an opinion of Flavio Rimoli,
in-house counsel for Embraer, dated the Closing Date, in form and substance
reasonably satisfactory to the Underwriter and substantially to the effect
set
forth in Exhibit J hereto.
(l) On
the
Closing Date, the Underwriter shall have received an opinion of Milbank,
Tweed,
Hadley & McCloy LLP, counsel for the Underwriter, dated as of the Closing
Date, with respect to the issuance and sale of the Offered Certificates,
the
Registration Statement, the Prospectus and other related matters as the
Underwriter may reasonably require.
(m) Subsequent
to the execution and delivery of this Agreement, there shall not have occurred
any change, or any development or event involving a prospective change, in
the
condition (financial or other), business, properties or results of operations
of
the Company and its subsidiaries considered as one enterprise that, in the
Underwriter’s judgment, is material and adverse and that makes it, in the
Underwriter’s judgment, impracticable to proceed with the completion of the
public offering of the Offered Certificates on the terms and in the manner
contemplated by the Prospectus.
(n) The
Underwriter shall have received on the Closing Date a certificate, dated
the
Closing Date and signed by the President or any Vice President of the Company,
to the effect that the representations and warranties of the Company contained
in this Agreement are true and correct as of the Closing Date as if made
on the
Closing Date (except to the extent that they relate solely to an earlier
date,
in which case they shall be true and accurate as of such earlier date), that
the
Company has performed all its obligations to be performed hereunder on or
prior
to the Closing Date and that, subsequent to the execution and delivery of
this
Agreement, there shall not have occurred any material adverse change, or
any
development or event involving a prospective material adverse change, in
the
condition (financial or other), business, properties or results of operations
of
the Company and its subsidiaries considered as one enterprise, except as
set
forth in or contemplated by the Prospectus.
(o) The
Underwriter shall have received from Ernst & Young LLP a letter, dated the
date hereof, in form and substance satisfactory to the Underwriter.
(p) Subsequent
to the execution and delivery of this Agreement and prior to the Closing
Date,
there shall not have been any downgrading in the rating accorded any of the
Company's securities (except for any pass through certificates) by any
"nationally
Page
13
of
30
recognized
statistical rating organization", as such term is defined for purposes of
Rule
436(g)(2) under the Securities Act, or any public announcement that any such
organization has under surveillance or review, in each case for possible
change,
its ratings of any such securities other than pass through certificates (other
than an announcement with positive implications of a possible upgrading,
and no
implication of a possible downgrading, of such rating).
(q) Each
of
the Appraisers shall have furnished to the Underwriter a letter from such
Appraiser, addressed to the Company and dated the Closing Date, confirming
that
such Appraiser and each of its directors and officers (i) is not an
affiliate of the Company or any of its affiliates, (ii) does not have any
substantial interest, direct or indirect, in the Company or any of its
affiliates and (iii) is not connected with the Company or any of its
affiliates as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
(r) At
the
Closing Date, each of the Operative Agreements (other than the Financing
Agreements) shall have been duly executed and delivered by each of the parties
thereto; and the representations and warranties of the Company contained
in each
of such executed Operative Agreements shall be true and correct as of the
Closing Date (except to the extent that they relate solely to an earlier
date,
in which case they shall be true and correct as of such earlier date) and
the
Underwriter shall have received a certificate of the President or a Vice
President of the Company, dated as of the Closing Date, to such effect.
(s) On
the
Closing Date, the Offered Certificates shall be rated (x) not lower than
"BBB-" by Standard & Poor's Ratings Services, a division of The McGraw-Hill
Companies, Inc., and (y) not lower than "Ba2" by Moody's Investors Service,
Inc.
(t) On
the
Closing Date, the representations and warranties of the Depositary contained
in
this Agreement shall be true and correct as if made on the Closing Date (except
to the extent that they relate solely to an earlier date, in which case they
shall be true and correct as of such earlier date).
(u) The
Underwriter shall have received from Ernst & Young LLP a letter, dated the
Closing Date, which meets the requirements of subsection (o) of this Section,
except that the specified date referred to in such subsection will be a date
not
more than three business days prior to the Closing Date for the purposes
of this
subsection.
(v) The
Underwriter shall have received on the Closing Date a certificate, dated
the
Closing Date and signed by the President or any Vice President of Embraer,
to
the effect that the representations and warranties of Embraer contained in
this
Agreement are true and correct as of the Closing Date as if made on the Closing
Date (except to the extent that they relate solely to an earlier date, in
which
case they shall be true and accurate as of such earlier date) and that Embraer
has performed all its obligations to be performed hereunder on or prior to
the
Closing Date.
Page
14
of
30
The
Company or Embraer, as applicable, will furnish the Underwriter with such
conformed copies of such opinions, certificates, letters and documents as
the
Underwriter may reasonably request.
4. Certain
Covenants of the Company.
The
Company covenants with the Underwriter as follows:
(a) During
the period described in the following sentence of this Section 4(a), the
Company
shall advise the Underwriter promptly of any proposal to amend or supplement
the
Registration Statement or the Prospectus (except by documents filed under
the
Exchange Act) and will not effect such amendment or supplement (except by
documents filed under the Exchange Act) without the consent of the Underwriter,
which consent will not be unreasonably withheld. If, at any time after the
public offering of the Offered Certificates, the Prospectus is required by
law
to be delivered in connection with sales of the Offered Certificates by the
Underwriter or a dealer, any event shall occur as a result of which it is
necessary to amend the Registration Statement or amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading
in
any material respect, or if it is necessary to amend the Registration Statement
or amend or supplement the Prospectus to comply with law, the Company shall
prepare and furnish, at Embraer's expense, to the Underwriter and to the
dealers
(whose names and addresses the Underwriter will furnish to the Company) to
which
Offered Certificates may have been sold by the Underwriter and to any other
dealers upon request, either amendments or supplements to the Prospectus
so that
the statements in the Prospectus as so amended or supplemented will not,
in the
light of the circumstances when the Prospectus is delivered to a purchaser,
be
misleading in any material respect or amendments or supplements to the
Registration Statement or the Prospectus so that the Registration Statement
or
the Prospectus, as so amended or supplemented, will comply with law and cause
such amendments or supplements to be filed promptly with the
Commission.
(b) During
the period mentioned in paragraph (a) above, the Company shall notify the
Underwriter immediately of (i) the effectiveness of any amendment to the
Registration Statement, (ii) the transmittal to the Commission for filing
of any supplement to the Prospectus or any document that would as a result
thereof be incorporated by reference in the Prospectus, (iii) the receipt
of any comments from the Commission with respect to the Registration Statement,
the Prospectus or the Prospectus Supplement, (iv) any request by the
Commission to the Company for any amendment to the Registration Statement
or any
supplement to the Prospectus or for additional information relating thereto
or
to any document incorporated by reference in the Prospectus and (v) receipt
by the Company of any notice of the issuance by the Commission of any stop
order
suspending the effectiveness of the Registration Statement, the suspension
of
the qualification of the Offered Certificates for offering or sale in any
jurisdiction, or the institution or threatening of any proceeding for any
of
such purposes; and the Company agrees to use every reasonable effort to prevent
the issuance of any such stop order and, if any such order is issued, to
obtain
the lifting thereof at the earliest possible moment and the Company shall
(subject to the proviso to Section 4(e))
Page
15
of
30
endeavor,
in cooperation with the Underwriter, to prevent the issuance of any such
stop
order suspending such qualification and, if any such order is issued, to
obtain
the lifting thereof at the earliest possible moment.
(c) During
the period mentioned in paragraph (a) above, the Company will furnish to
the Underwriter as many conformed copies of the Registration Statement (as
originally filed) and all amendments and supplements to such documents
(excluding all exhibits and documents filed therewith or incorporated by
reference therein) and as many conformed copies of all consents and certificates
of experts, in each case as soon as available and in such quantities as the
Underwriter reasonably requests.
(d) Promptly
following the execution of this Agreement, the Company will prepare a Prospectus
Supplement that complies with the Securities Act and that sets forth the
principal amount of the Offered Certificates and their terms (including,
without
limitation, terms of the Escrow Receipts attached to the Offered Certificates)
not otherwise specified in the Preliminary Prospectus Supplement or the Basic
Prospectus included in the Registration Statement, the name of the Underwriter
and the principal amount of the Offered Certificates, the price at which
the
Offered Certificates are to be purchased by the Underwriter from the Trustee,
any initial public offering price, any selling concession and reallowance
and
any delayed delivery arrangements, and such other information as the Underwriter
and the Company deem appropriate in connection with the offering of the Offered
Certificates. The Company will timely transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424 under the
Securities Act.
(e) The
Company shall, in cooperation with the Underwriter, endeavor to arrange for
the
qualification of the Offered Certificates for offer and sale under the
applicable securities or "blue sky" laws of such jurisdictions in the United
States as the Underwriter reasonably designates and will endeavor to maintain
such qualifications in effect so long as required for the distribution of
the
Offered Certificates; provided
that the
Company shall not be required to (i) qualify as a foreign corporation or as
a dealer in securities, (ii) file a general consent to service of process
or (iii) subject itself to taxation in any such jurisdiction.
(f) During
the period of ten years after the Closing Date, the Company will promptly
furnish to the Underwriter, upon request, copies of all Annual Reports on
Form
10-K and any definitive proxy statement of the Company filed with the
Commission; provided that
providing a website address at which such Annual Reports and any such definitive
proxy statements may be accessed will satisfy this clause (f).
(g) Between
the date of this Agreement and the Closing Date, the Company shall not, without
the prior written consent of the Underwriter, offer, sell, or enter into
any
agreement to sell (as public debt securities registered under the Securities
Act
(other than the Offered Certificates) or as debt securities which may be
resold
in a transaction exempt from the registration requirements of the Securities
Act
in reliance on Rule 144A thereunder and which are marketed through the use
of a
disclosure document containing
Page
16
of
30
substantially
the same information as a prospectus for similar debt securities registered
under the Securities Act), any equipment notes, pass through certificates,
equipment trust certificates or equipment purchase certificates secured by
aircraft owned or leased by the Company (or rights relating
thereto).
5. Indemnification
and Contribution.
(a) The
Company and Embraer agree that the Company (solely to the extent set forth
in
proviso (ii) below) and Embraer, subject to proviso (iii) below, will indemnify
and hold harmless the Underwriter, and each Person, if any, who controls
the
Underwriter within the meaning of either Section 15 of the Securities Act
or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by the Underwriter or any such controlling person
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, the Preliminary
Prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and Embraer
will also indemnify and hold harmless the Underwriter, and each Person, if
any,
who controls the Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and
all
any losses, claims, damages or liabilities (including, without limitation,
any
legal or other expenses reasonably incurred by the Underwriter or any such
controlling person in connection with defending or investigating any such
action
or claim) caused by any statement (oral or written) with respect to the offer
and sale of the Offered Certificates made by Embraer, any of its affiliates
or
any of their respective directors, officers, employees or agents, except
to the
extent expressly included in the Continental Information, in each case, except
insofar as any of the aforementioned losses, claims, damages or liabilities
are
caused by any such untrue statement or omission or alleged untrue statement
or
omission based upon the Depositary Information or the Underwriter Information;
provided,
however,
that
(i) the foregoing indemnity agreement with respect to the Preliminary Prospectus
shall not inure to the benefit of the Underwriter, or to the benefit of any
person controlling the Underwriter, if a copy of the Prospectus (as then
amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of the Underwriter
to
such person, if required by law so to have been delivered, at or prior to
the
written confirmation of the sale of such Offered Certificates to such person,
and if the Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such losses, claims, damages or liabilities unless
such
failure to deliver the Prospectus was a result of noncompliance by the Company
with its delivery requirements set forth in Section 4(a), (ii) the Company
shall
be obligated under this Section 5 only with respect to the Continental
Information and then only to the extent that a court of competent jurisdiction
makes a Final Determination that such losses, claims, damages or liabilities
arise out of or are caused by an untrue statement of a material fact contained
in or omission of a material fact from the Continental Information (such
Final
Determination, a "Final
Adverse Determination")
and
(iii) Embraer shall be obligated under this Section 5 to the extent that
the
Company is not obligated pursuant to the foregoing clause (ii). "Final
Determination"
shall
mean a determination which has not been stayed or reversed and which has
become
final and non-appealable in accordance with applicable law.
Page
17
of
30
The
provisions of this Section 5 shall not affect any agreements between the
Company, Embraer or any of their respective affiliates for the sharing of,
or
otherwise allocating, costs and expenses.
(b) The
Underwriter agrees to indemnify and hold harmless each of Embraer and the
Company, each of their respective directors, each of the officers of the
Company
who signed the Registration Statement and each person, if any, who controls
the
Company or Embraer, as the case may be, within the meaning of either Section
15
of the Securities Act or Section 20 of the Exchange Act, to the same extent
as
the foregoing indemnity from each of the Company and Embraer to the Underwriter
but only with reference to the Underwriter Information and without giving
effect
to the proviso in Section 5(a).
(c) In
case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant
to
either paragraph (a) or (b) above, such person (the "indemnified
party")
shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying
party"),
and,
if such proceeding involves any Continental Information, the Company, in
writing. The indemnifying party, upon request of the indemnified party, shall,
and the indemnifying party, or, if such proceeding involves any Continental
Information, the Company, may elect (any election by the Company to supersede
any election by Embraer) to, retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party (or the Company as the case may be) may designate in such
proceeding and the indemnifying party (or, if the Company elects to designate
counsel, Embraer) shall pay the fees and disbursements of such counsel related
to such proceeding (provided that if the Company has elected to designate
counsel in such proceeding and there is a Final Adverse Determination in
such
proceeding, then the Company shall reimburse Embraer for such fees and expenses
of such counsel theretofore paid by it in the same proportion as the Company
is
responsible for any judgment in such proceeding pursuant to Section 5(a)).
In
any such proceeding, any indemnified party shall have the right to retain
its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel,
(ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate
due to
actual or potential differing interests between them, or (iii) the
indemnifying party shall have failed to retain counsel as required by the
prior
sentence to represent the indemnified party within a reasonable amount of
time.
It is understood that the indemnifying party shall not, in connection with
any
proceeding or related proceedings in the same jurisdiction, be liable for
the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by the Underwriter in the case of parties indemnified pursuant to
paragraph (a) above and by the Company after consultation with Embraer in
the
case of parties indemnified pursuant to paragraph (b) above. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of
such
Page
18
of
30
settlement
or judgment, including if such settlement is consented to prior to a Final
Adverse Determination. Notwithstanding the foregoing sentence, if at any
time an
indemnified party shall have requested in writing an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more
than 90 days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement,
unless such fees and expenses are being disputed in good faith. The indemnifying
party (or, if such proceeding concerns the Continental Information, the Company)
at any time may, subject to the last sentence of this Section 5(c), settle
or
compromise any proceeding described in this paragraph at the expense of the
indemnifying party (provided that the Company may not so effect any such
settlement or compromise unless either (x) Embraer has consented thereto,
which
consent shall not be unreasonably withheld or delayed or (y) the Company
agrees
in its discretion that such settlement or compromise shall be at its expense).
For the avoidance of doubt, the parties acknowledge and agree that, unless
and
until (and then only to the extent that) there is a Final Adverse Determination
with respect to any proceeding described in this paragraph, the "indemnifying
party" with respect to such proceeding shall be Embraer and not the Company,
notwithstanding the Company's rights to designate counsel, and effect a
settlement or compromise, with respect to such proceeding. No indemnifying
party
shall (and, if such proceeding concerns the Continental Information, the
Company
shall not), without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which
any
indemnified party is or could have been a party and indemnity could have
been
sought hereunder by such indemnified party, unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on
claims
that are the subject matter of such proceeding and (ii) does not include
a
statement as to, or an admission of, fault, culpability or a failure to act
by
or on behalf of an indemnified party.
(d) To
the
extent the indemnification provided for in paragraph (a) or (b) of this Section
5 is required to be made but is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities, then
the
applicable indemnifying party under such paragraph, in lieu of indemnifying
such
indemnified party thereunder, shall contribute to the amount paid or payable
by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the
Company or Embraer, as the case may be,
on the
one hand, and the Underwriter, on the other hand, from the offering of such
Offered Certificates or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate
to
reflect not only the relative benefits referred to in clause (i) above but
also
the relative fault of the Company or Embraer, as the case may be, on the
one
hand and the Underwriter on the other hand in connection with the statements
or
omissions that resulted in such losses, claims, damages or liabilities, as
well
as any other relevant equitable considerations. The relative benefits received
by Embraer on the one hand and the Underwriter on the other hand in connection
with the offering of such Offered Certificates shall be deemed to be in the
same
respective proportions as the proceeds from the offering of such Offered
Certificates received by the Class A Trust (before deducting expenses) less
total underwriting discounts and commissions received by the Underwriter,
and
the total underwriting discounts and commissions received by the
Underwriter,
Page
19
of
30
in
each
case as set forth on the cover of the Prospectus, bear to the aggregate public
offering price of such Offered Certificates (it being acknowledged that the
Company shall be deemed for purposes of this paragraph to have received no
benefits from the offering). The relative fault of the Company or Embraer,
as
the case may be, on the one hand and of the Underwriter on the other hand
shall
be determined by reference to, among other things, whether the untrue or
alleged
untrue statement of a material fact or the omission or alleged omission to
state
a material fact relates to the Continental Information, in the case of the
Company, other information supplied by the Company or Embraer, as the case
may
be, in the case of Embraer, or Underwriter Information, in the case of the
Underwriter, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) The
Company, Embraer and the Underwriter agree that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by
pro rata
allocation or by any other method of allocation that does not take account
of
the equitable considerations referred to in paragraph (d) above. The amount
paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of
this
Section 5, the Underwriter shall not be required to contribute any amount
in
excess of the amount by which the total price at which the Offered Certificates
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that the Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The indemnity and contribution provisions contained in
this
Section 5 and the representations and warranties of the Company and Embraer
contained in this Agreement shall remain operative and in full force and
effect
regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of the Underwriter or any person controlling
the Underwriter or by or on behalf of either the Company or Embraer, their
respective officers or directors or any person controlling the Company or
Embraer, and (iii) acceptance of and payment for any of the Offered
Certificates. The remedies provided for in this Section 5 are not exclusive
and
shall not limit any rights or remedies which may otherwise be available to
any
indemnified party at law or in equity.
6. Survival
of Certain Representations and Obligations.
The
respective indemnities, agreements, representations, warranties and other
statements of the Company, Embraer or their respective officers and of the
Underwriter set forth in or made pursuant to this Agreement will remain in
full
force and effect, regardless of any termination of this Agreement, any
investigation, or statement as to the results thereof, made by or on behalf
of
the Underwriter, the Company, Embraer or any of their respective
representatives, officers or directors or any controlling person and will
survive delivery of and payment for the Offered Certificates. If for any
reason
the purchase of the Offered Certificates by the Underwriter is not consummated,
Embraer shall remain responsible for the expenses to be paid or reimbursed
by it
pursuant to Section 8 and the respective obligations of the Company, Embraer
and
the Underwriter pursuant to Section 5 shall remain in effect. If the purchase
of
the Offered Certificates by the Underwriter
Page 20
of
30
is
not
consummated for any reason other than solely because of the occurrence of
the
termination of the Agreement pursuant to Section 7, Embraer will reimburse
the Underwriter for all out-of-pocket expenses (including reasonable fees
and
disbursements of counsel) reasonably incurred by them in connection with
the
offering of such Offered Certificates and comply with its obligations under
Section 8.
7. Termination.
This
Agreement shall be subject to termination by notice given by the Underwriter
to
the Company and Embraer, if (a) after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have
been materially suspended or materially limited on or by, as the case may
be,
any of the New York Stock Exchange, the American Stock Exchange or the National
Association of Securities Dealers, Inc., (ii) trading of any securities of
the Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New
York shall have been declared by either Federal or New York State authorities,
(iv) there shall have occurred any attack on, outbreak or escalation of
hostilities or act of terrorism involving, the United States, or any change
in
financial markets or any calamity or crisis that, in each case, in the
Underwriter’s judgment, is material and adverse or (v) any major disruption of
settlements of securities or clearance services in the United States that
would
materially impair settlement and clearance with respect to the Offered
Certificates and (b) in the case of any of the events specified in clauses
(a)(i) through (v), such event singly or together with any other such event
makes it, in the Underwriter’s judgment, impracticable to market the Offered
Certificates on the terms and in the manner contemplated in the
Prospectus.
8. Payment
of Expenses.
As
among Embraer, the Company and the Underwriter, Embraer shall pay all expenses
incidental to the performance of the Company's and Embraer's obligations
under
this Agreement, including the following:
(i) expenses
incurred in connection with (A) qualifying the Offered Certificates for offer
and sale under the applicable securities or "blue sky" laws of such
jurisdictions in the United States as the Underwriter reasonably designate
(including filing fees and fees and disbursements of counsel for the Underwriter
in connection therewith), (B) endeavoring to maintain such qualifications
in effect so long as required for the distribution of such Offered Certificates,
(C) the review (if any) of the offering of the Offered Certificates by the
National Association of Securities Dealers, Inc., (D) the determination of
the
eligibility of the Offered Certificates for investment under the laws of
such
jurisdictions as the Underwriter may designate and (E) the preparation and
distribution of any blue sky or legal investment memorandum by Underwriter’s
counsel;
(ii) expenses
incurred in connection with the preparation and distribution to the Underwriter
and the dealers (whose names and addresses the Underwriter will furnish to
the
Company) to which Offered Certificates may have been sold by the Underwriter
on
its behalf and to any other dealers upon request, either of (A) amendments
to the Registration Statement or amendments or supplements to the Prospectus
in
order to make the statements therein, in the light of the circumstances when
the
Prospectus is delivered to a purchaser, not materially misleading or
(B) amendments or supplements to the Registration Statement or the
Prospectus so that the Registration Statement or the
Page
21
of
30
Prospectus,
as so amended or supplemented, will comply with law and the expenses incurred
in
connection with causing such amendments or supplements to be filed promptly
with
the Commission, all as set forth in Section 4(a) hereof;
(iii) the
expenses incurred in connection with the preparation, printing and filing
of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, of the Preliminary Prospectus and the
Prospectus and any amendments thereof and supplements thereto, and the cost
of
furnishing copies thereof to the Underwriter;
(iv) expenses
incurred in connection with the preparation, printing and distribution of
this
Agreement, the Offered Certificates and the Operative Agreements;
(v) expenses
incurred in connection with the delivery of the Offered Certificates to the
Underwriter;
(vi) reasonable
fees and disbursements of the counsel and accountants for the
Company;
(vii) to
the
extent Embraer is so required under any Operative Agreement to which it is
a
party, the fees and expenses of the Loan Trustees, the Subordination Agent,
the
Paying Agent, the Trustee, the Escrow Agent, the Depositary, the Liquidity
Provider and the reasonable fees and disbursements of their respective
counsel;
(viii) fees
charged by rating agencies for rating the Offered Certificates (including
annual
surveillance fees related to the Offered Certificates as long as they are
outstanding);
(ix) reasonable
fees and disbursements of counsel for the Underwriter;
(x) all
fees
and expenses relating to appraisals of the Aircraft; and
(xi) all
other
reasonable out-of-pocket expenses incurred by the Underwriter in connection
with
the transactions contemplated by this Agreement; and
(xii) except
as
otherwise provided in the foregoing clauses (i) through (xi), all other expenses
incidental to the performance of the Company's obligations under this Agreement,
other than pursuant to Section 5.
The
provisions of this Section 8 shall not affect any agreements between the
Company, Embraer and any of their respective affiliates for the sharing of,
or
otherwise allocating, costs and expenses.
9. Notices.
All
communications hereunder will be in writing and, if sent to the Underwriter,
will be mailed, delivered or sent by facsimile transmission and confirmed
to it
at
Citigroup Global Markets Inc., 390 Greenwich Street, 4th
Floor,
New York, New York 10013,
Page 22
of
30
Attention:
Greg Lee, facsimile
number (212) 723-8677,
if
sent
to the Company, will be mailed, delivered or sent by facsimile transmission
and
confirmed to it at 1600 Smith Street, HQSEO, Houston, TX 77002, Attention:
Treasurer and General Counsel, facsimile number (713) 324-2447, and if sent
to
Embraer, will be mailed, delivered or sent by facsimile transmission and
confirmed to it at Av.
Brigadeiro Faria Lima, 2170, 12227-901 São José dos Campos, S.P., Brazil,
Attention: Senior Vice President Sales Financing & Asset Management,
facsimile number +55-12-3927-2815, with a copy to Katten Muchin Rosenman
LLP,
1025 Thomas Jefferson Street, N.W., Suite 700, Washington, D.C. 20007,
Attention: Timothy J. Lynes, facsimile number (202) 295-1118;
provided,
however,
that
any notice to the Underwriter pursuant to Section 5 will be sent by facsimile
transmission or delivered and confirmed to the Underwriter.
10. Successors.
This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the controlling persons referred to in
Section 5, and no other person will have any right or obligation
hereunder.
11. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which will
be
deemed to be an original, but all such counterparts shall together constitute
one and the same Agreement.
12. APPLICABLE
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK OTHER THAN ANY LAW WHICH WOULD REQUIRE THE APPLICATION
OF A
LAW OF A DIFFERENT JURISDICTION.
13. Submission
to Jurisdiction; Venue; Appointment of Agent.
(a) Each
party hereto hereby irrevocably agrees, accepts and submits itself to the
non-exclusive jurisdiction of the courts of the State of New York in the
City
and County of New York and of the United States for the Southern District
of New
York, in connection with any legal action, suit or proceeding with respect
to
any matter relating to or arising out of or in connection with this Agreement.
Each of the parties to this Agreement agrees that a final action in any such
suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other lawful
manner.
(b) Each
party hereto hereby irrevocably waives, to the fullest extent permitted by
applicable law, and agrees not to assert, by stay of motion, as a defense,
or
otherwise, in any legal action or proceeding brought hereunder in any of
the
above-named courts, that such action or proceeding is brought in an inconvenient
forum, or that venue for the action or proceeding is improper.
(c) To
the
fullest extent permitted by applicable law, each party hereto hereby waives
its
respective rights to a jury trial or any claim or cause of action in any
court
in any jurisdiction based upon or arising out of or relating to this
Agreement.
Page 23
of
30
(d) Embraer
hereby irrevocably designates and appoints Corporation Services Company,
1177
Avenue of the Americas, 17th
Floor,
New York, NY 10036 (the "Process
Agent"),
as
the authorized agent of Embraer upon whom process may be served in any such
suit
or proceeding, it being understood that the designation and appointment of
the
Process Agent as such authorized agent shall become effective immediately
without any further action on the part of Embraer. Embraer represents to
the
Underwriter and the Company that it has notified the Process Agent of such
designation and appointment and that the Process Agent has accepted the same
in
writing. Embraer hereby irrevocably authorizes and directs the Process Agent
to
accept such service. Embraer further agrees that service of process upon
the
Process Agent and written notice of said service to Embraer mailed by
first-class mail or delivered to the Process Agent, shall be deemed in every
respect effective service of process upon Embraer in any such suit or
proceeding. Nothing herein shall affect the right of the Underwriter or the
Company, or any person controlling the Underwriter or the Company, to serve
process in any
other
manner permitted by law.
14. Sovereign
Immunity.
Each
party hereto hereby irrevocably agrees that, to the extent that it or any
of its
assets now has or may hereafter acquire any right of immunity as against
any
other party hereto or its respective successors and assigns, whether
characterized as sovereign immunity or otherwise, from any legal proceedings,
whether in the United States or elsewhere, arising out of this Agreement
or the
subject matter hereof or any of the transactions contemplated hereby brought
by
any of the parties hereto or their successors or assigns, including, without
limitation, immunity from service of process, immunity from jurisdiction
or
judgment of any court or tribunal, immunity from execution of a judgment,
and
immunity of any of its assets from attachment in aid of execution upon a
judgment, it hereby expressly and irrevocably waives and agrees not to assert
any such immunity and such waiver shall be irrevocable and not subject to
withdrawal in any jurisdiction, including, without limitation, under the
United
States Foreign Sovereign
Immunities Act of 1976.
15. Currency
Indemnity.
In the
event of a judgment, order or award being rendered by any court or tribunal
for
the payment of any amounts owing to any party hereto (the "Payee")
under
this Agreement or for the payment of damages in respect of a judgment or
order
of another court or tribunal for the payment of such amount or damages, such
judgment, order or award being expressed in a currency (the "Judgment
Currency")
other
than United States dollars (the "Agreed
Currency"),
each
party hereto obligated to pay such amounts owing (each, a "Payor")
agrees, to the fullest extent permitted by applicable law, (a) that its
obligations in respect of any such amounts owing shall be discharged only
to the
extent that on the business day following the Payee's receipt of any sum
adjudged in the Judgment Currency the Payee may in accordance with the normal
banking procedures purchase the Agreed Currency with the Judgment Currency
and
(b) to indemnify and hold harmless the Payee against any deficiency in terms
of
the Agreed Currency in the amounts actually received by the Payee following
any
such purchase (after deduction of any premiums and costs of exchange payable
in
connection with the purchase of, or conversion into, the Agreed Currency).
The
indemnity set forth in the preceding sentence shall (notwithstanding any
judgment referred to in the preceding sentence) constitute an obligation
of each
Payor separate and independent from its other obligations hereunder and shall
apply irrespective of any indulgence granted by the Payee.
Page 24
of
30
16. No
Fiduciary Duty.
Each of
the Company and Embraer hereby acknowledges that (a) the Underwriter is acting
as principal and not as an agent or fiduciary of the Company or Embraer and
(b)
their engagement of the Underwriter in connection with the transactions
contemplated hereby is as an independent contractor and not in any other
capacity. Furthermore, each of the Company and Embraer agrees that it is
solely
responsible for making its own judgments in connection with the transactions
contemplated hereby (irrespective of whether the Underwriter has advised
or is
currently advising the Company or Embraer on related or other
matters).
Page 25
of
30
If
the
foregoing is in accordance with the Underwriter’s understanding of our
agreement, kindly sign and return to the Company one of the counterparts
hereof,
whereupon it will become a binding agreement among the Underwriter, the
Depositary, Embraer and the Company in accordance with its terms.
Very
truly yours,
CONTINENTAL
AIRLINES, INC.
By:_______________________________
Name:
Title:
EMBRAER
-
EMPRESA BRASILEIRA DE AERONÁUTICA S.A.
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
The
foregoing Underwriting Agreement
is
hereby
confirmed and accepted
as
of the
date first above written
By: CITIGROUP
GLOBAL MARKETS INC.
By:_______________________________
Name:
Title:
Page 26
of
30
CITIBANK,
N.A.,
as
Depositary
By:_______________________________
Name:
Title:
Page 27
of
30
SCHEDULE I
(Pass
Through Certificates, Series 2005-ERJ1)
CONTINENTAL
AIRLINES, INC.
|
Pass
Through
Certificate
Designation
|
Aggregate
Principal
Amount
|
Interest
Rate
|
Final
Maturity
Date
|
|
2005-ERJ1
|
$311,010,000
|
9.798%
|
October
1, 2022
|
Page 28
of
30
SCHEDULE II
CONTINENTAL
AIRLINES, INC.
|
Underwriting
commission
and
other compensation:
|
$2,021,565.00
|
|
Closing
date, time and location:
|
September
22, 2005
10:00 A.M.,
New
York time
Hughes
Hubbard & Reed LLP
One
Battery Park Plaza
New
York, New York 10004
|
Page 29
of
30
ANNEX
I
For
purposes of the Underwriting Agreement, "Continental
Information"
shall
consist of the following information:
(i) with
respect to the Basic Prospectus, all information included therein and all
documents deemed to be incorporated by reference therein (and exhibits to
such
documents if so incorporated), but excluding the Basic Agreement and any
documents filed with the Commission subsequent to the Closing Date in connection
with the transactions contemplated by this Agreement;
(ii) with
respect to the Registration Statement, all information included therein and
all
documents deemed to be incorporated by reference therein (and exhibits to
such
documents if so incorporated), but excluding the Basic Agreement and any
documents filed with the Commission subsequent to the Closing Date in connection
with the transactions contemplated by this Agreement; and
(iii) with
respect to the Preliminary Prospectus Supplement and the Prospectus Supplement,
the statements set forth in the following sections:
(a) "Summary
Financial and Operating Data";
(b) "Risk
Factors--Risk Factors Relating to the Company" and "Risk Factors--Risk Factors
Relating to the Airline Industry";
(c) "The
Company"; and
(d) "Incorporation
of Certain Documents by Reference", and all documents deemed to be incorporated
by reference in the Preliminary Prospectus Supplement or Prospectus Supplement,
as the case may be, as specified in "Incorporation of Certain Documents by
Reference" (and exhibits to such documents if so incorporated), but excluding
the Basic Agreement and any documents filed with the Commission subsequent
to
the Closing Date in connection with the transactions contemplated by this
Agreement.
For
purposes of the Underwriting Agreement, "Embraer
Information"
shall
consist of all of the information in the Registration Statement, the Basic
Prospectus, the Preliminary Prospectus Supplement and the Prospectus Supplement
other than the Continental Information.
Page 30 of 30
EXECUTION
COPY
TRUST
SUPPLEMENT No. 2005-ERJ1
Dated
as
of September 22, 2005
between
WILMINGTON
TRUST COMPANY,
as
Trustee,
and
CONTINENTAL
AIRLINES, INC.
to
PASS
THROUGH TRUST AGREEMENT
Dated
as
of September 25, 1997
$311,010,000
Continental
Airlines Pass Through Trust 2005-ERJ1
9.798%
Continental Airlines
Pass
Through Certificates,
Series
2005-ERJ1
This
Trust Supplement No. 2005-ERJ1, dated as of September 22, 2005 (herein called
the “Trust
Supplement”),
between Continental Airlines, Inc., a Delaware corporation (the “Company”),
and
Wilmington Trust Company (the “Trustee”),
to
the Pass Through Trust Agreement, dated as of September 25, 1997, between
the
Company and the Trustee (the “Basic
Agreement”).
W I T N E
60;S S E T H:
WHEREAS,
the Basic Agreement, unlimited as to the aggregate principal amount of
Certificates (unless otherwise specified herein, capitalized terms used herein
without definition having the respective meanings specified in the Basic
Agreement) which may be issued thereunder, has heretofore been executed and
delivered;
WHEREAS,
the Company wishes to lease certain Aircraft from the relevant Owner
Trustees;
WHEREAS,
in the case of each Aircraft, the related Owner Trustee, acting on behalf
of the
related Owner Participant, will issue pursuant to an Indenture, on a
non-recourse basis, one series of Equipment Notes in order to finance the
debt
portion of the purchase price of such Aircraft;
WHEREAS,
the Trustee hereby declares the creation of this Continental Airlines Pass
Through Trust 2005-ERJ1 (the “Applicable
Trust”)
for
the benefit of the Applicable Certificateholders, and the initial Applicable
Certificateholders as the grantors of the Applicable Trust, by their respective
acceptances of the Applicable Certificates, join in the creation of the
Applicable Trust with the Trustee;
WHEREAS,
all Certificates to be issued by the Applicable Trust will evidence fractional
undivided interests in the Applicable Trust and will convey no rights, benefits
or interests in respect of any property other than the Trust Property except
for
those Certificates to which an Escrow Receipt has been affixed;
WHEREAS,
the Escrow Agent and the Underwriter have contemporaneously herewith entered
into an Escrow Agreement with the Escrow Paying Agent pursuant to which the
Underwriter has delivered to the Escrow Agent the proceeds from the sale
of the
Applicable Certificates, to the extent not used to purchase Equipment Notes
on
the Issuance Date, and have irrevocably instructed the Escrow Agent to withdraw
and pay funds from such proceeds upon request and proper certification by
the
Trustee to purchase Equipment Notes as the Aircraft are financed under the
NPA
(as hereinafter defined) from time to time prior to the Delivery Period
Termination Date;
WHEREAS,
the Escrow Agent on behalf of the Applicable Certificateholders has
contemporaneously herewith entered into a Deposit Agreement with the Depositary
under which the Deposits referred to therein will be made and from which
it will
withdraw funds to allow the Trustee to purchase Equipment Notes from time
to
time prior to the Delivery Period Termination Date;
1
WHEREAS,
pursuant to the terms and conditions of the Basic Agreement as supplemented
by
this Trust Supplement (the “Agreement”)
and
the NPA, upon the financing of an Aircraft, the Trustee on behalf of the
Applicable Trust, using funds withdrawn under the Escrow Agreement (or, if
financed on the Issuance Date, using a portion of the proceeds of the sale
of
the Applicable Certificates), shall purchase one or more Equipment Notes
having
the same interest rate as, and final maturity date not later than the final
Regular Distribution Date of, the Applicable Certificates issued hereunder
and
shall hold such Equipment Notes in trust for the benefit of the Applicable
Certificateholders;
WHEREAS,
all of the conditions and requirements necessary to make this Trust Supplement,
when duly executed and delivered, a valid, binding and legal instrument in
accordance with its terms and for the purposes herein expressed, have been
done,
performed and fulfilled, and the execution and delivery of this Trust Supplement
in the form and with the terms hereof have been in all respects duly authorized;
and
WHEREAS,
this Trust Supplement is subject to the provisions of the Trust Indenture
Act of
1939, as amended, and shall, to the extent applicable, be governed by such
provisions.
NOW
THEREFORE, in consideration of the premises herein, it is agreed between
the
Company and the Trustee as follows:
ARTICLE
I
THE
CERTIFICATES
Section
1.01. The
Certificates.
There
is hereby created a series of Certificates to be issued under the Agreement
to
be distinguished and known as “9.798% Continental Airlines Pass Through
Certificates, Series 2005-ERJ1” (hereinafter defined as the “Applicable
Certificates”).
Each
Applicable Certificate represents a fractional undivided interest in the
Applicable Trust created hereby. The Applicable Certificates shall be the
only
instruments evidencing a fractional undivided interest in the Applicable
Trust.
The
terms
and conditions applicable to the Applicable Certificates are as
follows:
(a) The
aggregate principal amount of the Applicable Certificates that shall be
authenticated under the Agreement (except for Applicable Certificates
authenticated and delivered pursuant to Sections 3.03, 3.04, 3.05 and 3.06
of the Basic Agreement) is $311,010,000.
(b) The
Regular Distribution Dates with respect to any payment of Scheduled Payments
means the 1st
day of
each month, commencing on October 1, 2005 until payment of all of the Scheduled
Payments to be made under the Equipment Notes has been made.
2
(c) The
Special Distribution Dates with respect to the Applicable Certificates means
any
Business Day on which a Special Payment is to be distributed pursuant to
the
Agreement.
(d) At
the
Escrow Agent’s request under the Escrow Agreement, the Trustee shall affix the
corresponding Escrow Receipt to each Applicable Certificate. In any event,
any
transfer or exchange of any Applicable Certificate shall also effect a transfer
or exchange of the related Escrow Receipt. Prior to the Final Withdrawal
Date,
no transfer or exchange of any Applicable Certificate shall be permitted
unless
the corresponding Escrow Receipt is attached thereto and also is so transferred
or exchanged. By acceptance of any Applicable Certificate to which an Escrow
Receipt is attached, each Holder of such an Applicable Certificate acknowledges
and accepts the restrictions on transfer of the Escrow Receipt set forth
herein
and in the Escrow Agreement.
(e) (i) The
Applicable Certificates shall be in the form attached hereto as Exhibit A.
Any
Person acquiring or accepting an Applicable Certificate or an interest therein
will, by such acquisition or acceptance, be deemed to represent and warrant
to
and for the benefit of each Owner Participant and the Company that either
(i)
the assets of an employee benefit plan subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”),
or of
a plan subject to Section 4975 of the Internal Revenue Code of 1986, as amended
(the “Code”),
have
not been used to purchase Applicable Certificates or an interest therein
or (ii)
the purchase and holding of Applicable Certificates or an interest therein
is
exempt from the prohibited transaction restrictions of ERISA and the Code
pursuant to one or more prohibited transaction statutory or administrative
exemptions.
(ii) The
Applicable Certificates shall be Book-Entry Certificates and shall be subject
to
the conditions set forth in the Letter of Representations between the Company
and the Clearing Agency attached hereto as Exhibit B.
(f) The
“Participation Agreements” as defined in this Trust Supplement are the “Note
Purchase Agreements” referred to in the Basic Agreement.
(g) The
Applicable Certificates are subject to the Intercreditor Agreement, the Deposit
Agreement and the Escrow Agreement.
(h) The
Applicable Certificates are entitled to the benefits of the Liquidity
Facility.
(i) The
Responsible Party is the Company.
(j) The
date
referred to in clause (i) of the definition of the term “PTC Event of Default”
in the Basic Agreement is the Final Maturity Date.
3
(k) The
“particular sections of the Note Purchase Agreement”, for purposes of clause (3)
of Section 7.07 of the Basic Agreement, are Section 9.1 of each Participation
Agreement.
(l) The
Equipment Notes to be acquired and held in the Applicable Trust, and the
related
Aircraft and Note Documents, are described in the NPA.
ARTICLE
II
DEFINITIONS
Section
2.01. Definitions.
For all
purposes of the Basic Agreement as supplemented by this Trust Supplement,
the
following capitalized terms have the following meanings (any term used herein
which is defined in both this Trust Supplement and the Basic Agreement shall
have the meaning assigned thereto in this Trust Supplement for purposes of
the
Basic Agreement as supplemented by this Trust Supplement):
Agreement:
Has the
meaning specified in the recitals hereto.
Aircraft:
Means
each of the Aircraft (as defined in the NPA) or Substitute Aircraft in respect
of which a Participation Agreement is to be or is, as the case may be, entered
into in accordance with the NPA (or any substitute aircraft, including engines
therefor, leased to the Company and securing one or more Equipment
Notes).
Aircraft
Purchase Agreement:
Means
the “Purchase Agreement” as defined in the NPA.
Applicable
Certificate:
Has the
meaning specified in Section 1.01 of this Trust Supplement.
Applicable
Certificateholder:
Means
the Person in whose name an Applicable Certificate is registered on the Register
for the Applicable Certificates.
Applicable
Closing Date:
Has the
meaning specified in Section 5.01(b) of this Trust Supplement.
Applicable
Participation Agreement:
Has the
meaning specified in Section 5.01(b) of this Trust Supplement.
Applicable
Trust:
Has the
meaning specified in the recitals hereto.
Basic
Agreement:
Has the
meaning specified in the first paragraph of this Trust Supplement.
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
4
York,
Salt Lake City, Utah or, so long as any Applicable Certificate is Outstanding,
the city and state in which the Trustee or any Loan Trustee maintains its
Corporate Trust Office or receives and disburses funds.
Company:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Controlling
Party:
Has the
meaning specified in the Intercreditor Agreement.
Cut-off
Date:
Means
the earlier of (a) the Delivery Period Termination Date and (b) the date
on
which a Triggering Event occurs.
Delivery
Notice:
Has the
meaning specified in the NPA.
Delivery
Period Termination Date:
Means
the earlier of (a) May 31, 2006, or, if the Equipment Notes relating to all
of
the Aircraft (or Substitute Aircraft in lieu thereof) have not been purchased
by
the Trustee on or prior to such date due to any reason beyond the control
of the
Company and not occasioned by the Company’s fault or negligence, August 31, 2006
and (b) the date on which Equipment Notes issued with respect to all of the
Aircraft (or Substitute Aircraft in lieu thereof) have been purchased by
the
Pass Through Trustee in accordance with the NPA.
Deposit
Agreement:
Means
the Deposit Agreement dated as of September 22, 2005 relating to the Applicable
Certificates between the Depositary and the Escrow Agent, as the same may
be
amended, supplemented or otherwise modified from time to time in accordance
with
its terms.
Depositary:
Means
Citibank, N.A., a national banking association.
Deposits:
Has the
meaning specified in the Deposit Agreement.
Distribution
Date:
Means
any Regular Distribution Date or Special Distribution Date as the context
requires.
Embraer:
Means
Embraer-Empresa
Brasileira de Aeronáutica S.A.
Escrow
Agent:
Means,
initially, Wells Fargo Bank Northwest, National Association, and any replacement
or successor therefor appointed in accordance with the Escrow
Agreement.
Escrow
Agreement:
Means
the Escrow and Paying Agent Agreement dated as of September 22, 2005 relating
to
the Applicable Certificates, among the Escrow Agent, the Escrow Paying Agent,
the Trustee and Underwriter, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Escrow
Paying Agent:
Means
the Person acting as paying agent under the Escrow Agreement.
5
Escrow
Receipt:
Means
the receipt substantially in the form annexed to the Escrow Agreement
representing a fractional undivided interest in the funds held in escrow
thereunder.
Final
Maturity Date:
Means
October 1, 2022.
Final
Withdrawal:
Has the
meaning specified in the Escrow Agreement.
Final
Withdrawal Date:
Has the
meaning specified in the Escrow Agreement.
Final
Withdrawal Notice:
Has the
meaning specified in Section 5.02 of this Trust Supplement.
Indenture:
Means
each of the separate trust indentures and mortgages relating to the Aircraft,
each as specified or described in a Delivery Notice delivered pursuant to
the
NPA or the related Participation Agreement, in each case as the same may
be
amended, supplemented or otherwise modified from time to time in accordance
with
its terms.
Intercreditor
Agreement:
Means
the Intercreditor Agreement (2005-ERJ1) dated as of September 22, 2005 among
the
Trustee, the Liquidity Provider and Wilmington Trust Company, as Subordination
Agent and as trustee thereunder, as amended, supplemented or otherwise modified
from time to time in accordance with its terms.
Investors:
Means
the Underwriter together with all subsequent beneficial owners of the Applicable
Certificates.
Liquidity
Facility:
Means,
initially, the Revolving Credit Agreement (2005-ERJ1) dated as of September
22,
2005 relating to the Applicable Certificates, between Landesbank
Baden-Württemberg and Wilmington Trust Company, as Subordination Agent, as agent
and trustee for the Applicable Trust and, from and after the replacement
of such
agreement pursuant to the Intercreditor Agreement, the replacement liquidity
facility therefor, as amended, supplemented or otherwise modified from time
to
time in accordance with its terms.
Liquidity
Provider:
Means,
initially, Landesbank Baden-Württemberg, a bank established in Germany as a
public law institution with legal capacity (Rechtsfähige
Anstalt des Öffentlichen Rechts),
and
any replacement or successor therefor appointed in accordance with the
Intercreditor Agreement.
Note
Documents:
Means
the Equipment Notes with respect to the Applicable Certificates and, with
respect to any such Equipment Note, the related Indenture, Participation
Agreement and Lease.
Notice
of Purchase Withdrawal:
Has the
meaning specified in the Deposit Agreement.
6
NPA:
Means
the Note Purchase Agreement dated as of September 22, 2005 among the Trustee,
the Company, the Escrow Agent, the Escrow Paying Agent and the Subordination
Agent, providing for, among other things, the purchase of Equipment Notes
by the
Trustee on behalf of the Applicable Trust, as the same may be amended,
supplemented or otherwise modified from time to time, in accordance with
its
terms.
Participation
Agreement:
Means
each Participation Agreement entered into or to be entered into, as the case
may
be, by the Trustee pursuant to the NPA, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its
terms.
Pool
Balance:
Means,
as of any date, (i) the original aggregate face amount of the Applicable
Certificates less (ii) the aggregate amount of all payments made in respect
of
such Applicable Certificates or in respect of Deposits other than payments
made
in respect of interest or premium thereon or reimbursement of any costs or
expenses incurred in connection therewith. The Pool Balance as of any
Distribution Date shall be computed after giving effect to any special
distribution with respect to unused Deposits, payment of principal of the
Equipment Notes or payment with respect to other Trust Property and the
distribution thereof to be made on that date.
Pool
Factor:
Means,
as of any Distribution Date, the quotient (rounded to the seventh decimal
place)
computed by dividing (i) the Pool Balance by (ii) the original aggregate
face
amount of the Applicable Certificates. The Pool Factor as of any Distribution
Date shall be computed after giving effect to any special distribution with
respect to unused Deposits, payment of principal of the Equipment Notes or
payments with respect to other Trust Property and the distribution thereof
to be
made on that date.
Prospectus
Supplement:
Means
the final Prospectus Supplement dated September 14, 2005 relating to the
offering of the Applicable Certificates.
Ratings
Confirmation:
Has the
meaning specified in the Intercreditor Agreement.
Scheduled
Closing Date:
Has the
meaning specified in the NPA.
Special
Payment:
Means
any payment (other than a Scheduled Payment) in respect of, or any proceeds
of,
any Equipment Note or Trust Indenture Estate (as defined in each
Indenture).
Substitute
Aircraft:
Has the
meaning specified in the NPA.
Triggering
Event:
Has the
meaning assigned to such term in the Intercreditor Agreement.
Trust
Property:
Means
(i) subject to the Intercreditor Agreement, the Equipment Notes held as the
property of the Applicable Trust, all monies at any time paid thereon
7
and
all
monies due and to become due thereunder, (ii) funds from time to time deposited
in the Certificate Account and the Special Payments Account and, subject
to
the
Intercreditor Agreement, any proceeds from the sale by the Trustee pursuant
to
Article VI of the Basic Agreement of any Equipment Note and (iii) all rights
of
the Applicable Trust and the Trustee, on behalf of the Applicable Trust,
under
the Intercreditor Agreement, the Escrow Agreement, the NPA and the Liquidity
Facility, including, without limitation, all rights to receive certain payments
thereunder, and all monies paid to the Trustee on behalf of the Applicable
Trust
pursuant to the Intercreditor Agreement or the Liquidity Facility, provided
that
rights with respect to the Deposits or under the Escrow Agreement, except
for
the right to direct withdrawals for the purchase of Equipment Notes to be
held
herein, will not constitute Trust Property.
Trust
Supplement:
Has the
meaning specified in the first paragraph of this trust supplement.
Underwriter:
Means
Citigroup Global Markets Inc.
Underwriting
Agreement:
Means
the Underwriting Agreement dated September 14, 2005 among the Underwriter,
the
Company, the Depositary and Embraer, as the same may be amended, supplemented
or
otherwise modified from time to time in accordance with its terms.
ARTICLE
III
DISTRIBUTIONS;
STATEMENTS TO CERTIFICATEHOLDERS
Section
3.01. Statements
to Applicable Certificateholders.
(a) On each Distribution Date, the Trustee will include with each
distribution to Applicable Certificateholders of a Scheduled Payment or Special
Payment, as the case may be, a statement setting forth the information provided
below (in the case of a Special Payment, reflecting in part the information
provided by the Escrow Paying Agent under the Escrow Agreement). Such statement
shall set forth (per $1,000 face amount Applicable Certificate as to (ii),
(iii), (iv) and (v) below) the following information:
(i) the
aggregate amount of funds distributed on such Distribution Date under the
Agreement and under the Escrow Agreement, indicating the amount allocable
to
each source;
(ii) the
amount of such distribution under the Agreement allocable to principal and
the
amount allocable to premium, if any;
(iii) the
amount of such distribution under the Agreement allocable to
interest;
(iv) the
amount of such distribution under the Escrow Agreement allocable to
interest;
8
(v) the
amount of such distribution under the Escrow Agreement allocable to unused
Deposits, if any; and
(vi) the
Pool
Balance and the Pool Factor.
With
respect to the Applicable Certificates registered in the name of a Clearing
Agency, on the Record Date prior to each Distribution Date, the Trustee will
request from such Clearing Agency a securities position listing setting forth
the names of all Clearing Agency Participants reflected on such Clearing
Agency’s books as holding interests in the Applicable Certificates on such
Record Date. On each Distribution Date, the Trustee will mail to each such
Clearing Agency Participant the statement described above and will make
available additional copies as requested by such Clearing Agency Participant
for
forwarding to holders of interests in the Applicable Certificates.
(b) Within
a
reasonable period of time after the end of each calendar year but not later
than
the latest date permitted by law, the Trustee shall furnish to each Person
who
at any time during such calendar year was an Applicable Certificateholder
of
record a statement containing the sum of the amounts determined pursuant
to
clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and (a)(v) above for such calendar
year or, in the event such Person was an Applicable Certificateholder of
record
during a portion of such calendar year, for such portion of such calendar
year,
and such other items as are readily available to the Trustee and which an
Applicable Certificateholder shall reasonably request as necessary for the
purpose of such Applicable Certificateholder’s preparation of its federal income
tax returns. Such statement and such other items shall be prepared on the
basis
of information supplied to the Trustee by the Clearing Agency Participants
and
shall be delivered by the Trustee to such Clearing Agency Participants to
be
available for forwarding by such Clearing Agency Participants to the holders
of
interests in the Applicable Certificates in the manner described in Section
3.01(a) of this Trust Supplement.
(c) Promptly
following (i) the Delivery Period Termination Date, if there has been any
change
in the information set forth in clauses (y) and (z) below from that set forth
in
pages S-32 through S-36 of the Prospectus Supplement, and (ii) the date of
any early redemption or purchase of, or any default in the payment of principal
or interest in respect of, any of the Equipment Notes held in the Applicable
Trust, or any Final Withdrawal, the Trustee shall furnish to Applicable
Certificateholders of record on such date a statement setting forth (x) the
expected Pool Balances for each subsequent Regular Distribution Date following
the Delivery Period Termination Date, (y) the related Pool Factors for such
Regular Distribution Dates and (z) the expected principal distribution schedule
of the Equipment Notes, in the aggregate, held as Trust Property at the date
of
such notice. With respect to the Applicable Certificates registered in the
name
of a Clearing Agency, on the Delivery Period Termination Date, the Trustee
will
request from such Clearing Agency a securities position listing setting forth
the names of all Clearing Agency Participants reflected on such Clearing
Agency’s books as holding interests in the Applicable Certificates on such date.
The Trustee will mail to each such Clearing Agency Participant the statement
described above and will make available additional copies as requested by
such
Clearing Agency Participant for forwarding to holders of interests in the
Applicable Certificates.
9
(d) This
Section 3.01 supersedes and replaces Section 4.03 of the Basic Agreement,
with
respect to the Applicable Trust.
Section
3.02. Special
Payments Account.
(a) The
Trustee shall establish and maintain on behalf of the Applicable
Certificateholders a Special Payments Account as one or more accounts, which
shall be non-interest bearing except as provided in Section 4.04 of the Basic
Agreement. The Trustee shall hold the Special Payments Account in trust for
the
benefit of the Applicable Certificateholders and shall make or permit
withdrawals therefrom only as provided in the Agreement. On each day when
one or
more Special Payments are made to the Trustee under the Intercreditor Agreement,
the Trustee, upon receipt thereof, shall immediately deposit the aggregate
amount of such Special Payments in the Special Payments Account.
(b)
This
Section 3.02 supersedes and replaces Section 4.01(b) of the Basic Agreement
in
its entirety, with respect to the Applicable Trust.
Section
3.03. Distributions
from Special Payments Account.
(a) On
each Special Distribution Date with respect to any Special Payment or as
soon
thereafter as the Trustee has confirmed receipt of any Special Payments due
on
the Equipment Notes held (subject to the Intercreditor Agreement) in the
Applicable Trust or realized upon the sale of such Equipment Notes, the Trustee
shall distribute out of the Special Payments Account the entire amount of
such
Special Payment deposited therein pursuant to Section 3.02(a) of this Trust
Supplement. There shall be so distributed to each Applicable Certificateholder
of record on the Record Date with respect to such Special Distribution Date
(other than as provided in Section 11.01 of the Basic Agreement concerning
the
final distribution) by check mailed to such Applicable Certificateholder,
at the
address appearing in the Register, such Applicable Certificateholder’s pro rata
share (based on the Fractional Undivided Interest in the Applicable Trust
held
by such Applicable Certificateholder) of the total amount in the Special
Payments Account on account of such Special Payment, except that, with respect
to Applicable Certificates registered on the Record Date in the name of a
Clearing Agency (or its nominee), such distribution shall be made by wire
transfer in immediately available funds to the account designated by such
Clearing Agency (or such nominee).
(b) The
Trustee shall, at the expense of the Company, cause notice of each Special
Payment to be mailed to each Applicable Certificateholder at his address
as it
appears in the Register. In the event of redemption or purchase of Equipment
Notes held in the Applicable Trust, such notice shall be mailed not less
than 15
days prior to the Special Distribution Date for the Special Payment resulting
from such redemption or purchase, which Special Distribution Date shall be
the
date of such redemption or purchase. In the case of any other Special Payments,
such notice shall be mailed as soon as practicable after the Trustee has
confirmed that it has received funds for such Special Payment, stating the
Special Distribution Date for such Special Payment which shall occur not
less
than 15 days after the date of such notice and as soon as practicable
thereafter. Notices mailed by the Trustee shall set forth:
(i) the
Special Distribution Date and the Record Date therefor (except as otherwise
provided in Section 11.01 of the Basic Agreement),
10
(ii) the
amount of the Special Payment for each $1,000 face amount Applicable Certificate
and the amount thereof constituting principal, premium, if any, and
interest,
(iii) the
reason for the Special Payment, and
(iv) if
the
Special Distribution Date is the same date as a Regular Distribution Date,
the
total amount to be received on such date for each $1,000 face amount Applicable
Certificate.
If
the
amount of premium, if any, payable upon the redemption or purchase of an
Equipment Note has not been calculated at the time that the Trustee mails
notice
of a Special Payment, it shall be sufficient if the notice sets forth the
other
amounts to be distributed and states that any premium received will also
be
distributed.
If
any
redemption of the Equipment Notes held in the Trust is canceled, the Trustee,
as
soon as possible after learning thereof, shall cause notice thereof to be
mailed
to each Applicable Certificateholder at its address as it appears on the
Register.
(b)
This
Section 3.03 supersedes and replaces Section 4.02(b) and Section 4.02(c)
of the
Basic Agreement in their entirety, with respect to the Applicable
Trust.
ARTICLE
IV
DEFAULT
Section
4.01. Amendment
of Section 6.05 of the Basic Agreement.
Section
6.05 of the Basic Agreement shall be amended, with respect to the Applicable
Trust, by deleting the phrase “and thereby annul any Direction given by such
Certificateholders or the Trustee to such Loan Trustee with respect thereto,”
set forth in the first sentence thereof.
ARTICLE
V
THE
TRUSTEE
Section
5.01. Delivery
of Documents; Delivery Dates.
(a) The
Trustee is hereby directed (i) to execute and deliver the Intercreditor
Agreement, the Escrow Agreement and the NPA on or prior to the Issuance Date,
each in the form delivered to the Trustee by the Company, and (ii) subject
to
the respective terms thereof, to perform its obligations thereunder. Upon
request of the Company and the satisfaction or waiver of the closing conditions
specified in the Underwriting Agreement, the Trustee shall execute, deliver,
authenticate, issue and sell Applicable Certificates in authorized denominations
equaling in the aggregate the amount set forth, with respect to the Applicable
Trust, in Schedule I to the Underwriting Agreement evidencing the entire
ownership interest in the Applicable Trust, which amount equals the maximum
aggregate principal amount of Equipment Notes which may be purchased by the
Trustee pursuant to the NPA. Except as provided in Sections 3.03, 3.04, 3.05
and
3.06 of the Basic Agreement, the Trustee shall not execute, authenticate
or deliver Applicable Certificates in excess of the aggregate amount
specified in this paragraph. The provisions of this
11
Section 5.01(a)
supersede and replace the first sentence of Section 3.02(a) of the Basic
Agreement, with respect to the Applicable Trust.
(b) On
or
after the Issuance Date, the Company may deliver from time to time to the
Trustee a Delivery Notice relating to one or more Equipment Notes. After
receipt
of a Delivery Notice and in any case no later than one Business Day prior
to a
Scheduled Closing Date as to which such Delivery Notice relates (the
“Applicable
Closing Date”),
the
Trustee shall (as and when specified in the Delivery Notice) instruct the
Escrow
Agent to provide a Notice of Purchase Withdrawal to the Depositary requesting
(A) the withdrawal of one or more Deposits on the Applicable Closing Date
in
accordance with and to the extent permitted by the terms of the Escrow Agreement
and the Deposit Agreement and (B) the payment of all, or a portion, of such
Deposit or Deposits in an amount equal in the aggregate to the purchase price
of
such Equipment Notes to or on behalf of the Owner Trustee issuing such Equipment
Notes, all as shall be described in the Delivery Notice; provided
that, if
the Issuance Date is an Applicable Closing Date, the Trustee shall not so
instruct the Escrow Agent, and the purchase price of such Equipment Notes
shall
be paid from a portion of the proceeds of the sale of the Applicable
Certificates. The Trustee shall (as and when specified in such Delivery Notice),
subject to the conditions set forth in Section 2 of the NPA, enter into and
perform its obligations under the Participation Agreement specified in such
Delivery Notice (the “Applicable
Participation Agreement”)
and
cause such certificates, documents and legal opinions relating to the Trustee
to
be duly delivered as required by the Applicable Participation Agreement.
If at
any time prior to the Applicable Closing Date, the Trustee receives a notice
of
postponement pursuant to Section 1(e) or 1(f) of the NPA, then the Trustee
shall
give the Depositary (with a copy to the Escrow Agent) a notice of cancellation
of such Notice of Purchase Withdrawal relating to such Deposit or Deposits
on
such Applicable Closing Date. Upon satisfaction of the conditions specified
in
the NPA and the Applicable Participation Agreement, the Trustee shall purchase
the applicable Equipment Notes with the proceeds of the withdrawals of one
or
more Deposits made on the Applicable Closing Date in accordance with the
terms
of the Deposit Agreement and the Escrow Agreement (or, if the Issuance Date
is
the Applicable Closing Date with respect to such Applicable Participation
Agreement, from a portion of the proceeds of the sale of the Applicable
Certificates; provided,
that,
if any portion of such proceeds is not used to purchase Equipment Notes by
3:30
p.m., New York time, on such date, the Trustee (on behalf of the Investors)
shall immediately (but in no event later than 4:00 p.m., New York time, on
such
date) deposit such unused proceeds with the Depositary (in Federal immediately
available funds by wire transfer) in accordance with the Deposit Agreement
and
such deposit or deposits shall constitute a "Deposit" or "Deposits" (as defined
therein) for all purposes thereunder). The purchase price of such Equipment
Notes shall equal the principal amount of such Equipment Notes. Amounts
withdrawn from such Deposit or Deposits in excess of the purchase price of
the
Equipment Notes or to the extent not applied on the Applicable Closing Date
to
the purchase price of the Equipment Notes, shall be re-deposited by the Trustee
with the Depositary on the Applicable Closing Date in accordance with the
terms
of the Deposit Agreement. The provisions of this Section 5.01(b) supersede
and
replace the provisions of Section 2.02 of the Basic Agreement with respect
to
the Applicable Trust, and all provisions of the Basic Agreement relating
to
Postponed Notes and Section 2.02 of the Basic Agreement shall not apply to
the
Applicable Trust.
12
(c)
The
Trustee acknowledges its acceptance of all right, title and interest in and
to
the Trust Property to be acquired pursuant to Section 5.01(b) of this Trust
Supplement, the NPA and each Applicable Participation Agreement, and declares
that it holds and will hold such right, title and interest for the benefit
of
all present and future Applicable Certificateholders, upon the trusts set
forth
in the Agreement. By its acceptance of an Applicable Certificate, each initial
Applicable Certificateholder, as a grantor of the Applicable Trust, joins
with
the Trustee in the creation of the Applicable Trust. The provisions of this
Section 5.01(c) supersede and replace the provisions of Section 2.03 of the
Basic Agreement, with respect to the Applicable Trust.
Section
5.02. Withdrawal
of Deposits.
If any
Deposits remain outstanding on the Business Day next succeeding the Cut-off
Date, the Trustee shall give the Escrow Agent notice that the Trustee’s
obligation to purchase Equipment Notes under the NPA has terminated and instruct
the Escrow Agent to provide a notice of Final Withdrawal to the Depositary
substantially in the form of Exhibit B to the Deposit Agreement (the
“Final
Withdrawal Notice”).
Section
5.03. The
Trustee.
(a)
Subject to Section 5.04 of this Trust Supplement and Section 7.15 of the
Basic
Agreement, the Trustee shall not be responsible in any manner whatsoever
for or
in respect of the validity or sufficiency of this Trust Supplement, the Deposit
Agreement, the NPA or the Escrow Agreement or the due execution hereof or
thereof by the Company or the other parties thereto (other than the Trustee),
or
for or in respect of the recitals and statements contained herein or therein,
all of which recitals and statements are made solely by the Company, except
that
the Trustee hereby represents and warrants that each of this Trust Supplement,
the Basic Agreement, each Applicable Certificate, the Intercreditor Agreement,
the NPA and the Escrow Agreement has been executed and delivered by one of
its
officers who is duly authorized to execute and deliver such document on its
behalf.
(b) Except
as
herein otherwise provided and except during the continuation of an Event
of
Default in respect of the Applicable Trust created hereby, no duties,
responsibilities or liabilities are assumed, or shall be construed to be
assumed, by the Trustee by reason of this Trust Supplement other than as
set
forth in the Agreement, and this Trust Supplement is executed and accepted
on
behalf of the Trustee, subject to all the terms and conditions set forth
in the
Agreement, as fully to all intents as if the same were herein set forth at
length.
Section
5.04. Representations
and Warranties of the Trustee.
The
Trustee hereby represents and warrants that:
(a) the
Trustee has full power, authority and legal right to execute, deliver and
perform this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement, the NPA and the Note Documents to which it is or is to become
a party
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Supplement, the Intercreditor Agreement,
the
Escrow Agreement, the NPA and the Note Documents to which it is or is to
become
a party;
(b) the
execution, delivery and performance by the Trustee of this Trust Supplement,
the
Intercreditor Agreement, the Escrow Agreement, the NPA and the Note
13
Documents
to which it is or is to become a party (i) will not violate any provision
of any United States federal law or the law of the state of the United States
where it is located governing the banking and trust powers of the Trustee
or any
order, writ, judgment, or decree of any court, arbitrator or governmental
authority applicable to the Trustee or any of its assets, (ii) will not
violate any provision of the articles of association or by-laws of the Trustee,
and (iii) will not violate any provision of, or constitute, with or without
notice or lapse of time, a default under, or result in the creation or
imposition of any lien on any properties included in the Trust Property pursuant
to the provisions of any mortgage, indenture, contract, agreement or other
undertaking to which it is a party, which violation, default or lien could
reasonably be expected to have an adverse effect on the Trustee’s performance or
ability to perform its duties hereunder or thereunder or on the transactions
contemplated herein or therein;
(c) the
execution, delivery and performance by the Trustee of this Trust Supplement,
the
Intercreditor Agreement, the Escrow Agreement, the NPA and the Note Documents
to
which it is or is to become a party will not require the authorization, consent,
or approval of, the giving of notice to, the filing or registration with,
or the
taking of any other action in respect of, any governmental authority or agency
of the United States or the state of the United States where it is located
regulating the banking and corporate trust activities of the Trustee;
and
(d) this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the
NPA and
the Note Documents to which it is or is to become a party have been, or will
be,
as applicable, duly executed and delivered by the Trustee and constitute,
or
will constitute, as applicable, the legal, valid and binding agreements of
the
Trustee, enforceable against it in accordance with their respective terms;
provided,
however,
that
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors
generally and (ii) general principles of equity.
Section
5.05. Trustee
Liens.
The
Trustee in its individual capacity agrees, in addition to the agreements
contained in Section 7.17 of the Basic Agreement, that it will at its own
cost
and expense promptly take any action as may be necessary to duly discharge
and
satisfy in full any Trustee’s Liens on or with respect to the Trust Property
which is attributable to the Trustee in its individual capacity and which
is
unrelated to the transactions contemplated by the Intercreditor Agreement
or the
NPA.
14
ARTICLE
VI
ADDITIONAL
AMENDMENT; SUPPLEMENTAL AGREEMENTS
Section
6.01. Amendment
of Section 5.02 of the Basic Agreement.
Section
5.02 of the Basic Agreement shall be amended, with respect to the Applicable
Trust, by (i) replacing the phrase “of the Note Documents and of this Agreement”
set forth in paragraph (b) thereof with the phrase “of the Note Documents, of
the NPA and of this Agreement” and (ii) replacing the phrase “of this Agreement
and any Note Document” set forth in the last paragraph of Section 5.02 with
the phrase “of this Agreement, the NPA and any Note Document”.
Section
6.02. Supplemental
Agreements Without Consent of Applicable Certificateholders.
Without
limitation of Section 9.01 of the Basic Agreement, under the terms of, and
subject to the limitations contained in, Section 9.01 of the Basic Agreement,
the Company may (but will not be required to), and the Trustee (subject to
Section 9.03 of the Basic Agreement) shall, at the Company’s request, at any
time and from time to time, enter into one or more agreements supplemental
to
the Escrow Agreement, the NPA or the Deposit Agreement, for any of the purposes
set forth in clauses (1) through (9) of such Section 9.01, and (without
limitation of the foregoing or Section 9.01 of the Basic Agreement) (a) clauses
(2) and (3) of such Section 9.01 shall also be deemed to include the Company’s
obligations under (in the case of clause (2)), and the Company’s rights and
powers conferred by (in the case of clause (3)), the NPA, and
(b) references in clauses (4), (6) and (7) of such Section 9.01 to “any
Intercreditor Agreement or any Liquidity Facility” shall also be deemed to refer
to “the Intercreditor Agreement, the Liquidity Facility, the Escrow Agreement,
the NPA or the Deposit Agreement”.
Section
6.03. Supplemental
Agreements with Consent of Applicable Certificateholders.
Without
limitation of Section 9.02 of the Basic Agreement, the provisions of Section
9.02 of the Basic Agreement shall apply to agreements or amendments for the
purpose of adding any provisions to or changing in any manner or eliminating
any
of the provisions of the Escrow Agreement, the Deposit Agreement or the NPA
or
modifying in any manner the rights and obligations of the Applicable
Certificateholders under the Escrow Agreement, the Deposit Agreement or the
NPA;
provided that the provisions of Section 9.02(1) of the Basic Agreement shall
be
deemed to include reductions in any manner of, or delay in the timing of,
any
receipt by the Applicable Certificateholders of payments upon the
Deposits.
ARTICLE
VII
MISCELLANEOUS
PROVISIONS
Section 7.01.
Basic
Agreement Ratified.
Except
and so far as herein expressly provided, all of the provisions, terms and
conditions of the Basic Agreement are in all respects ratified and confirmed;
and the Basic Agreement and this Trust Supplement shall be taken, read and
construed as one and the same instrument. All replacements of provisions
of, and
other modifications of the Basic Agreement set forth in this Trust Supplement
are solely with respect to the Applicable Trust.
15
Section
7.02. GOVERNING
LAW.
THE AGREEMENT AND THE APPLICABLE CERTIFICATES HAVE BEEN DELIVERED IN THE
STATE
OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS
OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. THIS SECTION
7.02
SUPERSEDES AND REPLACES SECTION 12.05 OF THE BASIC AGREEMENT, WITH RESPECT
TO
THE APPLICABLE TRUST.
Section
7.03. Execution
in Counterparts.
This
Trust Supplement may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but
one
and the same instrument.
Section
7.04. Intention
of Parties.
The
parties hereto intend that the Applicable Trust be classified for U.S. federal
income tax purposes as a grantor trust under Subpart E, Part I of Subchapter
J
of the Internal Revenue Code of 1986, as amended, and not as a trust or
association taxable as a corporation or as a partnership. Each Applicable
Certificateholder and Investor, by its acceptance of its Applicable Certificate
or a beneficial interest therein, agrees to treat the Applicable Trust as
a
grantor trust for all U.S. federal, state and local income tax purposes.
The
powers granted and obligations undertaken pursuant to the Agreement shall
be so
construed so as to further such intent.
16
IN
WITNESS WHEREOF, the Company and the Trustee have caused this Trust Supplement
to be duly executed by their respective officers thereto duly authorized,
as of
the day and year first written above.
CONTINENTAL
AIRLINES, INC.
By:_________________________
Name:
Title:
WILMINGTON
TRUST COMPANY,
as
Trustee
By:_________________________
Name:
Title:
17
EXHIBIT
A
FORM
OF
CERTIFICATE
Certificate
No.
[Unless
this certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation (“DTC”),
to
Issuer or its agent for registration of transfer, exchange or payment, and
any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment
is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch the registered owner hereof,
Cede & Co., has an interest herein.]*
CONTINENTAL
AIRLINES PASS THROUGH TRUST 2005-ERJ1
9.798%
Continental Airlines Pass Through Certificate, Series 2005-ERJ1
Issuance
Date: September 22, 2005
Final
Maturity Date: October 1, 2022
Evidencing
A Fractional Undivided Interest In The Continental Airlines Pass Through
Trust
2005-ERJ1, The Property Of Which Shall Include Certain Equipment Notes Each
Secured By An Aircraft Leased To Continental Airlines, Inc.
$[_____________]
Fractional Undivided Interest
representing
0.0003215330697% of the Trust per $1,000 face amount
THIS
CERTIFIES THAT __________, for value received, is the registered owner of
a
$___________ (_________________________________________________ DOLLARS)
Fractional Undivided Interest in the Continental Airlines Pass Through Trust
2005-ERJ1 (the “Trust”)
created by Wilmington Trust Company, as trustee (the “Trustee”),
pursuant to a Pass Through Trust Agreement, dated as of September 25, 1997
(the
“Basic
Agreement”),
between the Trustee and Continental Airlines, Inc., a Delaware corporation
(the
“Company”),
as
__________________
* This
legend to appear on Book-Entry Certificates to be deposited with the Depository
Trust Company.
A-1
supplemented
by Trust Supplement No. 2005-ERJ1 thereto, dated as of September 22, 2005
(the
“Trust
Supplement”
and,
together with the Basic Agreement, the “Agreement”),
between the Trustee and the Company, a summary of certain of the pertinent
provisions of which is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them
in
the Agreement. This Certificate is one of the duly authorized Certificates
designated as “9.798% Continental Airlines Pass Through Certificates, Series
2005-ERJ1”(herein called the “Certificates”).
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement. By virtue of its acceptance hereof, the holder
of
this Certificate (the “Certificateholder”
and,
together with all other holders of Certificates issued by the Trust, the
“Certificateholders”)
assents to and agrees to be bound by the provisions of the Agreement and
the
Intercreditor Agreement. The property of the Trust includes certain Equipment
Notes and all rights of the Trust to receive payments under the Intercreditor
Agreement and the Liquidity Facility (the “Trust
Property”).
Each
issue of the Equipment Notes is secured by, among other things, a security
interest in an Aircraft leased to the Company.
The
Certificates represent Fractional Undivided Interests in the Trust and the
Trust
Property and have no rights, benefits or interest in respect of any other
separate trust established pursuant to the terms of the Basic Agreement for
any
other series of certificates issued pursuant thereto.
Subject
to and in accordance with the terms of the Agreement and the Intercreditor
Agreement, from funds then available to the Trustee, there will be distributed
on the 1st
day of
each month (a “Regular
Distribution Date”)
commencing on October 1, 2005 to the Person in whose name this Certificate
is
registered at the close of business on the 15th day preceding the Regular
Distribution Date, an amount in respect of the Scheduled Payments on the
Equipment Notes due on such Regular Distribution Date, the receipt of which
has
been confirmed by the Trustee, equal to the product of the percentage interest
in the Trust evidenced by this Certificate and an amount equal to the sum
of
such Scheduled Payments. Subject to and in accordance with the terms of the
Agreement and the Intercreditor Agreement, in the event that Special Payments
on
the Equipment Notes are received by the Trustee, from funds then available
to
the Trustee, there shall be distributed on the applicable Special Distribution
Date, to the Person in whose name this Certificate is registered at the close
of
business on the 15th day preceding the Special Distribution Date, an amount
in respect of such Special Payments on the Equipment Notes, the receipt of
which
has been confirmed by the Trustee, equal to the product of the percentage
interest in the Trust evidenced by this Certificate and an amount equal to
the
sum of such Special Payments so received. If a Regular Distribution Date
or
Special Distribution Date is not a Business Day, distribution shall be made
on
the immediately following Business Day with the same force and effect as
if made
on such Regular Distribution Date or Special Distribution Date and no interest
shall accrue during the intervening period. The Trustee shall mail notice
of
each Special Payment and the Special Distribution Date therefor to the
Certificateholder of this Certificate.
Distributions
on this Certificate will be made by the Trustee by check mailed to the Person
entitled thereto, without presentation or surrender of this Certificate or
the
making of any notation hereon, except that with respect to Certificates
registered on the Record Date in the name of a Clearing Agency (or its nominee),
such distribution shall be made by wire transfer.
A-2
Except
as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after notice mailed by the
Trustee
of the pendency of such distribution and only upon presentation and surrender
of
this Certificate at the office or agency of the Trustee specified in such
notice.
The
Certificates do not represent a direct obligation of, or an obligation
guaranteed by, or an interest in, the Company or the Trustee or any affiliate
thereof. The Certificates are limited in right of payment, all as more
specifically set forth on the face hereof and in the Agreement. All payments
or
distributions made to Certificateholders under the Agreement shall be made
only
from the Trust Property and only to the extent that the Trustee shall have
sufficient income or proceeds from the Trust Property to make such payments
in
accordance with the terms of the Agreement. Each Certificateholder of this
Certificate, by its acceptance hereof, agrees that it will look solely to
the
income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, privileges, and duties evidenced hereby. A copy of the Agreement
may be examined during normal business hours at the principal office of the
Trustee, and at such other places, if any, designated by the Trustee, by
any
Certificateholder upon request.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Company
and
the rights of the Certificateholders under the Agreement at any time by the
Company and the Trustee with the consent of the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less
than
a majority in interest in the Trust. Any such consent by the Certificateholder
of this Certificate shall be conclusive and binding on such Certificateholder
and upon all future Certificateholders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Certificateholders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations set forth therein,
the transfer of this Certificate is registrable in the Register upon surrender
of this Certificate for registration of transfer at the offices or agencies
maintained by the Trustee in its capacity as Registrar, or by any successor
Registrar, duly endorsed or accompanied by a written instrument of transfer
in
form satisfactory to the Trustee and the Registrar, duly executed by the
Certificateholder hereof or such Certificateholder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate Fractional Undivided Interest in the Trust
will be
issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
minimum denominations of $1,000 Fractional Undivided Interest and integral
multiples thereof except that one Certificate may be issued in a different
denomination. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable
A-3
for
new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust, as requested by the
Certificateholder surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee shall require payment of a sum sufficient to cover any tax
or
governmental charge payable in connection therewith.
Each
Certificateholder and Investor, by its acceptance of this Certificate or
a
beneficial interest herein, agrees to treat the Trust as a grantor trust
for all
U.S. federal, state and local income tax purposes.
The
Trustee, the Registrar, and any agent of the Trustee or the Registrar may
treat
the person in whose name this Certificate is registered as the owner hereof
for
all purposes, and neither the Trustee, the Registrar, nor any such agent
shall
be affected by any notice to the contrary.
The
obligations and responsibilities created by the Agreement and the Trust created
thereby shall terminate upon the distribution to Certificateholders of all
amounts required to be distributed to them pursuant to the Agreement and
the
disposition of all property held as part of the Trust Property.
Any
Person acquiring or accepting this Certificate or an interest herein will,
by
such acquisition or acceptance, be deemed to have represented and warranted
to
and for the benefit of each Owner Participant and the Company that either:
(i)
the assets of an employee benefit plan subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”),
or of
a plan subject to Section 4975 of the Internal Revenue Code of 1986, as amended
(the “Code”),
have
not been used to purchase this Certificate or an interest herein or
(ii) the purchase and holding of this Certificate or an interest herein are
exempt from the prohibited transaction restrictions of ERISA and the Code
pursuant to one or more prohibited transaction statutory or administrative
exemptions.
THE
AGREEMENT AND THIS CERTIFICATE HAVE BEEN DELIVERED IN THE STATE OF NEW YORK
AND
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF
NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
A-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
CONTINENTAL
AIRLINES PASS
THROUGH
TRUST
2005-ERJ1
By: WILMINGTON
TRUST COMPANY,
as
Trustee
By:_________________________
Name:
Title:
A-5
FORM
OF
THE TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
WILMINGTON
TRUST COMPANY,
as
Trustee
By:_________________________
Name:
Title:
EXHIBIT
B
[DTC
Letter of Representations]
EXECUTION
VERSION
_________________________________________________________________
REVOLVING
CREDIT AGREEMENT
(2005-ERJ1)
Dated
as
of September 22, 2005
between
WILMINGTON
TRUST COMPANY,
as
Subordination Agent,
as
agent
and trustee for the
Continental
Airlines Pass Through Trust 2005-ERJ1,
as
Borrower,
and
LANDESBANK
BADEN-WÜRTTEMBERG,
as
Liquidity Provider
_________________________________________________________________
Continental
Airlines Pass Through Trust 2005-ERJ1
Continental
Airlines 9.798% Pass Through Certificates,
Series
2005-ERJ1
Page
|
1
|
|
|
1
|
|
|
8
|
|
|
8
|
|
|
8
|
|
|
8
|
|
|
10
|
|
|
11
|
|
|
11
|
|
|
12
|
|
|
13
|
|
|
13
|
|
|
13
|
|
|
13
|
|
|
14
|
|
|
14
|
|
|
14
|
|
|
15
|
|
|
17
|
|
|
17
|
|
|
17
|
|
|
17
|
|
|
18
|
|
|
19
|
|
|
19
|
|
|
19
|
|
|
19
|
|
|
19
|
|
|
21
|
|
|
21
|
|
|
21
|
|
|
22
|
|
|
22
|
|
|
22
|
|
|
22
|
|
23
|
|
|
23
|
|
|
23
|
|
|
24
|
|
|
24
|
|
|
24
|
|
|
24
|
|
|
25
|
|
|
25
|
|
|
27
|
|
|
27
|
|
|
27
|
|
|
28
|
|
|
28
|
|
|
28
|
|
|
28
|
REVOLVING
CREDIT AGREEMENT (2005-ERJ1)
This
REVOLVING CREDIT AGREEMENT (2005-ERJ1), dated as of September 22, 2005, is
made by and between WILMINGTON TRUST COMPANY, a Delaware corporation, not in
its
individual capacity but solely as Subordination Agent under the Intercreditor
Agreement (each as defined below), as agent and trustee for the Trust (as
defined below) (the "Borrower"),
and
LANDESBANK BADEN-WÜRTTEMBERG, a bank established in Germany as a public law
institution with legal capacity (Rechtsf’hige
Anstalt des Öffentlichen Rechts)
(the
"Liquidity
Provider").
W
I T
N E S S E T H:
WHEREAS,
pursuant to the Trust Agreement (such term and all other capitalized terms
used
in these recitals having the meanings set forth or referred to in Section 1.01),
the Trust is issuing the Certificates; and
WHEREAS,
the Borrower, in order to support the timely payment of a portion of the
interest on the Certificates in accordance with their terms, has requested
the
Liquidity Provider to enter into this Agreement, providing in part for the
Borrower to request in specified circumstances that Advances be made
hereunder.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, and
of
other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
DEFINITIONS
Section
1.01. Certain
Defined Terms.
(a)
As
used
in this Agreement and unless expressly indicated, or unless the context clearly
requires otherwise, the following capitalized terms shall have the following
respective meanings for all purposes of this Agreement:
"Additional
Costs"
has the
meaning assigned to such term in Section 3.01.
"Advance"
means
an Interest Advance, a Final Advance, a Special Termination Advance, a Provider
Advance or an Applied Provider Advance, as the case may be.
"Agreement"
means
this Revolving Credit Agreement (2005-ERJ1), dated as of September 22,
2005, between the Borrower and the Liquidity Provider, as the same may be
amended, supplemented or otherwise modified from time to time in accordance
with
its terms.
"Applicable
Liquidity Rate"
has the
meaning assigned to such term in Section 3.07(f).
"Applicable
Margin"
means
(i) with respect to any Unpaid Advance (other than an Unapplied Special
Termination Advance) or Applied Provider Advance, 2.5% per annum, and
(ii) with respect to any Unapplied Provider Advance or any Unapplied
Special Termination Advance, the margin per annum specified in the Fee
Letter.
"Applied
Downgrade Advance"
has the
meaning assigned to such term in Section 2.06(a).
"Applied
Early Termination Advance"
has the
meaning assigned to such term in Section 2.06(a).
"Applied
Provider Advance"
has the
meaning assigned to such term in Section 2.06(a).
"Applied
Special Termination Advance"
has the
meaning assigned to such term in Section 2.05.
"Base
Rate"
means,
on any day, a fluctuating interest rate per annum in effect from time to time,
which rate per annum shall at all times be equal to (a) the weighted average
of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day
(or,
if such day is not a Business Day, for the next preceding Business Day) by
the
Federal Reserve Bank of New York, or if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day for
such
transactions received by the Liquidity Provider from three Federal funds brokers
of recognized standing selected by it, plus (b) one-quarter of one percent
(1/4
of 1%).
"Base
Rate Advance"
means
an Advance that bears interest at a rate based upon the Base Rate.
"Borrower"
has the
meaning assigned to such term in the recital of parties to this
Agreement.
"Borrowing"
means
the making of Advances requested by delivery of a Notice of
Borrowing.
"Business
Day"
means
any day other than a Saturday, a Sunday or a day on which commercial banks
are
required or authorized to close in Houston, Texas, New York, New York or, so
long as any Certificate is outstanding, the city and state in which the Trustee,
the Borrower or any Loan Trustee maintains its Corporate Trust Office or
receives or disburses funds, and, if the applicable Business Day relates to
any
Advance or other amount bearing interest based on LIBOR, on which dealings
are
carried on in the London interbank market.
"Deposit
Agreement"
means
the Deposit Agreement dated as of the date hereof between Wells Fargo Bank
Northwest, National Association, as Escrow Agent, and Citibank, N.A., as
Depositary, pertaining to the Certificates, as the same may be amended, modified
or supplemented from time to time in accordance with the terms
thereof.
"Depositary"
means
Citibank, N.A.
"Deposits"
has the
meaning assigned to such term in the Deposit Agreement.
"Dollars"
or
"$"
means
United States dollars.
"Downgrade
Advance"
means
an Advance made pursuant to Section 2.02(d).
"Downgrade
Event"
means a
downgrading of the Liquidity Provider's short-term unsecured debt rating or
short-term issuer credit rating, as the case may be, issued by either Rating
Agency below the applicable Threshold Rating unless each Rating Agency shall
have confirmed in writing on or prior to the date of such downgrading that
such
downgrading will not result in the downgrading, withdrawal or suspension of
the
ratings of the Certificates.
"Early
Termination Advance"
means
an advance made pursuant to Section 2.02(b).
"Early
Termination Date"
means
the date specified in an Early Termination Notice delivered by the Liquidity
Provider to the Borrower in accordance with Section 2.10, which date shall
not
be earlier than the 25th
day
following the receipt by the Borrower of such Early Termination
Notice.
"Early
Termination Notice"
has the
meaning assigned to such term in Section 2.10.
"Early
Termination Notice Period"
means
the period from the 40th day to and including the 25th day prior to the
anniversary of the Closing Date in each calendar year.
"Effective
Date"
has the
meaning assigned to such term in Section 4.01. The delivery of the certificate
of the Liquidity Provider contemplated by Section 4.01(e) shall be conclusive
evidence that the Effective Date has occurred.
"Excluded
Taxes"
means
(i) Taxes imposed on, based on or measured by the income of, or franchise Taxes
imposed on, the Liquidity Provider or its Lending Office by the jurisdiction
where such Liquidity Provider's principal office or such Lending Office is
located or any other taxing jurisdiction in which such Tax is imposed as a
result of the Liquidity Provider being, or having been, organized in, or
conducting, or having conducted, any activities unrelated to the transactions
contemplated by the Operative Agreements in, such jurisdiction or (ii)
withholding taxes, whether or not indemnified under Section 3.03.
"Excluded
Withholding Taxes"
means
(i) withholding Taxes imposed by the United States except (a) if such Liquidity
Provider is, on the date hereof (or, in the case of any successor Liquidity
Provider, on the date it acquires its interest herein), a "resident" of an
Applicable Treaty jurisdiction entitled to claim the benefits of an Applicable
Treaty in respect of amounts payable hereunder, any such withholding Tax to
the
extent imposed as a result of a change in applicable law or treaty (other than
any addition of, or change in, any "anti-treaty shopping", "limitation on
benefits", or similar provision in any treaty or other applicable law
restricting the availability of treaty benefits (including, without limitation
any provision similar to the Protocol Amending the Convention Between the United
States of America and the Kingdom of the Netherlands for the Avoidance of Double
Taxation and the Prevention of Fiscal
Evasion
with respect to Taxes on Income, signed at Washington on October 13, 1993))
after the date hereof (or, in the case of any successor Liquidity Provider,
after the date it acquired its interest herein) and (b) any such withholding
Tax
to the extent the amount of such withholding Tax imposed on such successor
Liquidity Provider does not exceed the amount of such withholding Tax that,
in
the absence of the transfer to such successor Liquidity Provider, would have
been an Indemnified Tax imposed on payments to the predecessor Liquidity
Provider pursuant to applicable law in effect on the date such successor
Liquidity Provider acquired its interest herein, (ii) any Tax imposed or to
the
extent increased as a result of the Liquidity Provider failing to deliver to
the
Borrower any certificate or document (the delivery of which certificate or
document in the good faith judgment of the Liquidity Provider will not expose
the Liquidity Provider to any adverse consequence and which the Liquidity
Provider is legally entitled to provide) which is reasonably requested by the
Borrower to establish that payments under this Agreement are exempt from (or
entitled to a reduced rate of) withholding Tax, and (iii) any Tax imposed by
a
jurisdiction as a result of the Liquidity Provider being, or having been,
organized in, or maintaining, or having maintained, its principal office or
Lending Office in, or conducting, or having conducted, any activities unrelated
to the transactions contemplated by the Operative Agreements in, such
jurisdiction. For purposes of this definition, "Applicable
Treaty"
means
an income tax treaty between the United States and any of Australia, Austria,
Canada, France, Germany, Ireland, Japan, Luxembourg, The Netherlands, Sweden,
Switzerland or the United Kingdom.
"Expenses"
means
liabilities, obligations, damages, settlements, penalties, claims, actions,
suits, costs, expenses, and disbursements (including, without limitation,
reasonable fees and disbursements of legal counsel and costs of investigation),
provided that Expenses shall not include any Taxes other than sales, use and
V.A.T. taxes imposed on fees and expenses payable pursuant to Section
7.07.
"Expiry
Date"
means
October 16, 2022.
"Final
Advance"
means
an Advance made pursuant to Section 2.02(e).
"Indemnified
Tax"
has the
meaning assigned to such term in Section 3.03.
"Intercreditor
Agreement"
means
the Intercreditor Agreement dated as of the date hereof, among the Trustee,
the
Liquidity Provider and the Subordination Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
"Interest
Advance"
means
an Advance made pursuant to Section 2.02(a).
"Interest
Period"
means,
with respect to any LIBOR Advance, each of the following periods:
(i) the
period
beginning on (and including) the third London/Stuttgart Business Day following
either (A) the Liquidity Provider's receipt of the Notice of Borrowing for
such
LIBOR Advance or (B) the date on which funds are withdrawn
from
the
Cash Collateral Account for the purpose of paying interest on the Certificates
as contemplated by Section 2.06(a) hereof and, in either case, ending on
(but excluding) the next Regular Distribution Date; and
(i) each
subsequent
period commencing on (and including) the last day of the immediately
preceding
Interest Period and ending on (but excluding) the next Regular Distribution
Date;
provided,
however,
that if
(x) the Final Advance shall have been made, or (y) other outstanding Advances
shall have been converted into the Final Advance, then the Interest Periods
shall be successive periods of one month beginning on the third London/Stuttgart
Business Day following the Liquidity Provider's receipt of the Notice of
Borrowing for such Final Advance (in the case of clause (x) above) or the
Regular Distribution Date following such conversion (in the case of clause
(y)
above); provided further
that if
the last day of any Interest Period shall not be a Business Day, such Interest
Period will end on the next succeeding Business Day.
"Lending
Office"
means
the lending office of the Liquidity Provider presently located at Stuttgart,
Germany, or such other lending office as the Liquidity Provider from time to
time shall notify the Borrower as its Lending Office hereunder; provided that
the Liquidity Provider shall not change its Lending Office to another lending
office outside Germany or the United States of America except in accordance
with
Section 3.11 hereof.
"LIBOR"
means,
with respect to any Interest Period,
(i) the
rate per annum
appearing on display page 3750 (British Bankers Association-LIBOR) of the
Telerate Service (or any successor or substitute therefor) at approximately
11:00 a.m. (London time) two London/Stuttgart Business Days before the first
day
of such Interest Period, as the rate for dollar deposits with a maturity
comparable to such Interest Period; or
(ii)
if
the
rate calculated pursuant to clause (i) above is not available, the average
(rounded upwards, if necessary, to the next 1/16 of 1%) of the rates per annum
at which deposits in dollars are offered for the relevant Interest Period by
three banks of recognized standing selected by the Liquidity Provider in the
London interbank market at approximately 11:00 a.m. (London time) two
London/Stuttgart Business Days before the first day of such Interest Period
in
an amount approximately equal to the principal amount of the LIBOR Advance
to
which such Interest Period is to apply and for a period comparable to such
Interest Period; or
(iii)
if
clause
(ii) above is applicable but fewer than three banks in the London interbank
market provide such rate, the average (rounded upwards, if necessary, to the
next 1/16 of 1%) of the rates per annum quoted by three banks in New York City
of recognized standing selected by the Liquidity Provider at approximately
11:00
a.m. (New York City time) two
Business
Days before the first day of such Interest Period for loans in Dollars to
leading European banks in an amount approximately equal to the principal amount
of the LIBOR Advance to which such Interest Period is to apply and for a period
comparable to such Interest Period.
"LIBOR
Advance"
means
an Advance bearing interest at a rate based upon LIBOR.
"Liquidity
Event of Default"
means
the occurrence of either (a) the Acceleration of all of the Equipment Notes
(provided
that,
with respect to the period prior to the Delivery Period Expiry Date, such
Equipment Notes have an aggregate outstanding principal balance in excess of
$195 million) or (b) a Continental Bankruptcy Event.
"Liquidity
Indemnitee"
means
(i) the Liquidity Provider, (ii) the directors, officers, employees and
agents of the Liquidity Provider and (iii) the successors and permitted
assigns of the persons described in clauses (i) and (ii).
"Liquidity
Provider"
has the
meaning assigned to such term in the recital of parties to this
Agreement.
"London/Stuttgart
Business Day"
means
any day on which commercial banks are open for general business in London,
England and Stuttgart, Germany.
"Maximum
Available Commitment"
means,
subject to the proviso contained in the third sentence of Section 2.02(a),
at
any time of determination, (a) the Maximum Commitment at such time less (b)
the
aggregate amount of each Interest Advance outstanding at such time; provided
that
following a Provider Advance, a Special Termination Advance or a Final Advance,
the Maximum Available Commitment shall be zero.
"Maximum
Commitment"
means
initially $45,709,139.70, as the same may be reduced from time to time in
accordance with Section 2.04(a).
"Notice
of Borrowing"
has the
meaning assigned to such term in Section 2.02(g).
"Notice
of Replacement Subordination Agent"
has the
meaning assigned to such term in Section 3.08.
"Performing
Note Deficiency"
means
any time that less than 65% of the then aggregate outstanding principal amount
of all Equipment Notes are Performing Equipment Notes.
"Prospectus
Supplement"
means
the final Prospectus Supplement dated September 14, 2005 relating to the
Certificates, as such Prospectus Supplement may be amended or
supplemented.
"Provider
Advance"
means a
Downgrade Advance or an Early Termination Advance.
"Regulatory
Change"
has the
meaning assigned to such term in Section 3.01.
"Replenishment
Amount"
has the
meaning assigned to such term in Section 2.06(b).
"Special
Termination Advance"
means
an Advance made pursuant to Section 2.02(f).
"Special
Termination Notice"
means
the Notice of Special Termination substantially in the form of Annex IX to
this
Agreement.
"Termination
Date"
means
the
earliest to occur of the following: (i) the Expiry Date; (ii) the date on which
the Borrower delivers to the Liquidity Provider a certificate, signed by a
Responsible Officer of the Borrower, certifying that all of the Certificates
have been paid in full (or provision has been made for such payment in
accordance with the Intercreditor Agreement and the Trust Agreement) or are
otherwise no longer entitled to the benefits of this Agreement; (iii) the date
on which the Borrower delivers to the Liquidity Provider a certificate, signed
by a Responsible Officer of the Borrower, certifying that a Replacement
Liquidity Facility has been substituted for this Agreement in full pursuant
to
Section 3.6(e) of the Intercreditor Agreement; (iv) the fifth Business Day
following the receipt by the Borrower of a Termination Notice or Special
Termination Notice from the Liquidity Provider pursuant to Section 6.01
hereof;
and
(v)
the
date on
which no Advance is, or may (including by reason of reinstatement as herein
provided) become available for a Borrowing hereunder.
"Termination
Notice"
means
the Notice of Termination substantially in the form of Annex VI to this
Agreement.
"Transferee"
has the
meaning assigned to such term in Section 7.08(b).
"Unapplied
Early Termination Advance"
means
any portion of an Early Termination Advance which is not an Applied Early
Termination Advance.
"Unapplied
Provider Advance"
means
any portion of any Provider Advance that is not an Applied Provider
Advance.
"Unapplied
Special Termination Advance"
means
any portion of a Special Termination Advance that is not an Applied Special
Termination Advance.
"Unpaid
Advance"
has the
meaning assigned to such term in Section 2.05.
(b)
For
the
purposes of this Agreement, the following terms shall have the respective
meanings assigned to such terms in the Intercreditor Agreement:
"Acceleration",
"Cash
Collateral Account",
"Certificate",
"Certificateholder",
"Closing
Date",
"Continental",
"Continental
Bankruptcy Event",
"Controlling
Party",
"Corporate
Trust Office",
"Delivery
Period Expiry Date",
"Distribution
Date",
"Downgraded
Facility",
"Early
Terminated Facility",
"Equipment
Notes",
"Fee
Letter",
"Final
Legal Distribution Date",
"Financing
Agreement",
"Indenture",
"Investment
Earnings",
"Liquidity
Obligations",
"Loan
Trustee",
"Moody's",
"Note
Purchase Agreement",
"Operative
Agreements",
"Participation
Agreement",
"Performing
Equipment Note",
"Person",
"Pool
Balance",
"Rating
Agencies",
"Ratings
Confirmation",
"Regular
Distribution Dates",
"Replacement
Liquidity Facility",
"Required
Amount",
"Responsible
Officer",
"Scheduled
Payment",
"Special
Payment",
"Standard
& Poor's",
"Stated
Interest Rate",
"Subordination
Agent",
"Taxes",
"Threshold
Rating",
"Trust",
"Trust
Agreement",
"Trustee",
"Underwriter",
"Underwriting
Agreement"
and
"Written
Notice".
Section
1.02. Interpretation.
For
purposes of this Agreement, except as expressly provided or unless the context
otherwise requires:
(a)
the
terms
used herein that are defined in this Article have the meanings assigned to
them
in this Article, and include the plural as well as the singular;
(b)
all
references in this Agreement to designated "Articles", "Sections" and other
subdivisions are to the designated Articles, Sections and other subdivisions
of
this Agreement;
(c)
the
words
"herein", "hereof" and "hereunder" and other words of similar import refer
to
this Agreement as a whole and not to any particular Article, Section or other
subdivision; and
(d)
the
term
"including" shall mean "including without limitation".
AMOUNT
AND TERMS OF THE COMMITMENT
Section
2.01. The
Advances.
The
Liquidity Provider hereby irrevocably agrees, on the terms and conditions
hereinafter set forth, to make Advances to the Borrower from time to time on
any
Business Day during the period from the Effective Date until 1:00 p.m. (New
York
City time) on the Expiry Date (unless the obligations of the Liquidity Provider
shall be earlier terminated in accordance with the terms of Section 2.04(b))
in
an aggregate amount at any time outstanding not to exceed the Maximum
Commitment.
Section
2.02. Making
the Advances.
(a)
Interest Advances shall be made in one or more Borrowings by delivery to the
Liquidity Provider of one or more written and completed Notices of Borrowing
in
substantially the form of Annex I attached hereto, signed by a Responsible
Officer of the Borrower, in an amount not exceeding the Maximum Available
Commitment at such time and shall be used solely for the payment when due of
interest with respect to the Certificates at the Stated Interest Rate therefor
in accordance with Sections 3.6(a) and 3.6(b) of the Intercreditor Agreement.
Each Interest Advance made hereunder shall automatically reduce the Maximum
Available Commitment and the amount available to be borrowed hereunder by
subsequent Advances by the amount of such Interest Advance (subject to
reinstatement as provided in the next sentence). Upon repayment to the Liquidity
Provider in full or in part of the amount of any Interest
Advance
made pursuant to this Section 2.02(a), together with accrued interest thereon
(as provided herein), the Maximum Available Commitment shall be reinstated
by an
amount equal to the amount of such Interest Advance so repaid but not to exceed
the Maximum Commitment; provided,
however,
that
the Maximum Available Commitment shall not be so reinstated at any time if
(x)
both a Performing Note Deficiency exists and a Liquidity Event of Default shall
have occurred and be continuing, or (y) a Final Advance, a Provider Advance
or a Special Termination Advance has been made or an Advance has been converted
into a Final Advance.
(b)
Subject
to Section 2.10, an Early Termination Advance shall be made in a single
Borrowing if the Liquidity Provider has delivered an Early Termination Notice
in
accordance with Section 3.6(d) of the Intercreditor Agreement (unless a
Replacement Liquidity Facility to replace this Agreement shall have been
delivered to the Borrower as contemplated by said Section 3.6(d) within the
time
period specified in such Section 3.6(d)) by delivery to the Liquidity Provider
of a written and completed Notice of Borrowing in substantially the form of
Annex II attached hereto, signed by a Responsible Officer of the Borrower,
in an
amount equal to the Maximum Available Commitment at such time, and shall be
used
to fund the Cash Collateral Account in accordance with Sections 3.6(d) and
3.6(f) of the Intercreditor Agreement.
(c)
[reserved]
(d)
A
Downgrade Advance shall be made in a single Borrowing upon the occurrence of
a
Downgrade Event (as provided for in Section 3.6(c) of the Intercreditor
Agreement) unless a Replacement Liquidity Facility to replace this Agreement
shall have been previously delivered to the Borrower in accordance with such
Section 3.6(c), by delivery to the Liquidity Provider of a written and
completed Notice of Borrowing in substantially the form of Annex IV attached
hereto, signed by a Responsible Officer of the Borrower, in an amount equal
to
the Maximum Available Commitment at such time, and shall be used to fund the
Cash Collateral Account in accordance with Sections 3.6(c) and 3.6(f) of the
Intercreditor Agreement.
(e)
A
Final
Advance shall be made in a single Borrowing upon the receipt by the Borrower
of
a Termination Notice from the Liquidity Provider pursuant to Section 6.01 hereof
by delivery to the Liquidity Provider of a written and completed Notice of
Borrowing in substantially the form of Annex V attached hereto, signed by a
Responsible Officer of the Borrower, in an amount equal to the Maximum Available
Commitment at such time, and shall be used to fund the Cash Collateral Account
in accordance with Sections 3.6(f) and 3.6(i) of the Intercreditor
Agreement.
(f)
A
Special
Termination Advance shall be made in a single Borrowing upon the receipt by
the
Borrower of a Special Termination Notice from the Liquidity Provider pursuant
to
Section 6.02, by delivery to the Liquidity Provider of a written and completed
Notice of Borrowing in substantially the form of Annex VIII, signed by a
Responsible Officer of the Borrower, in an amount equal to the Maximum Available
Commitment at such time, and shall be used to fund the Cash Collateral Account
in accordance with Sections 3.6(f) and 3.6(k) of the Intercreditor
Agreement.
(g)
Each
Borrowing shall be made on notice in writing (a "Notice
of Borrowing")
in
substantially the form required by Section 2.02(a), 2.02(b), 2.02(d), 2.02(e)
or
2.02(f)
as the case may be, given by the Borrower to the Liquidity Provider. Each Notice
of Borrowing shall be effective upon delivery of a copy thereof to the Liquidity
Provider's New York branch (with a copy to the Lending Office) at the address
specified in Section 7.02. If a Notice of Borrowing is delivered by the Borrower
in respect of any Borrowing no later than 1:00 p.m. (New York City time) on
a
Business Day, upon satisfaction of the conditions precedent set forth in Section
4.02 with respect to a requested Borrowing, the Liquidity Provider shall make
available to the Borrower, in accordance with its payment instructions, the
amount of such Borrowing in U.S. dollars and in immediately available funds,
before 4:00 p.m. (New York City time) on such Business Day or on such later
Business Day specified in such Notice of Borrowing. If a Notice of Borrowing
is
delivered by the Borrower in respect of any Borrowing on a day that is not
a
Business Day or after 1:00 p.m. (New York City time) on a Business Day, upon
satisfaction of the conditions precedent set forth in Section 4.02 with respect
to a requested Borrowing, the Liquidity Provider shall make available to the
Borrower, in accordance with its payment instructions, the amount of such
Borrowing in U.S. dollars and in immediately available funds, before 1:00 p.m.
(New York City time) on the first Business Day next following the day of receipt
of such Notice of Borrowing or on such later Business Day specified by the
Borrower in such Notice of Borrowing. Payments of proceeds of a Borrowing shall
be made by wire transfer of immediately available funds to the Borrower in
accordance with such wire transfer instructions as the Borrower shall furnish
from time to time to the Liquidity Provider for such purpose. Each Notice of
Borrowing shall be irrevocable and binding on the Borrower.
(h)
Upon
the
making of any Advance requested pursuant to a Notice of Borrowing in accordance
with the Borrower's payment instructions, the Liquidity Provider shall be fully
discharged of its obligation hereunder with respect to such Notice of Borrowing,
and the Liquidity Provider shall not thereafter be obligated to make any further
Advances hereunder in respect of such Notice of Borrowing to the Borrower or
to
any other Person. If the Liquidity Provider makes an Advance requested pursuant
to a Notice of Borrowing before 1:00 p.m. (New York City time) on the second
Business Day after the date of payment specified in Section 2.02(g), the
Liquidity Provider shall have fully discharged its obligations hereunder with
respect to such Advance and an event of default shall not have occurred
hereunder. Following the making of any Advance pursuant to Section 2.02(b),
2.02(d), 2.02(e) or 2.02(f) hereof to fund the Cash Collateral Account, the
Liquidity Provider shall have no interest in or rights to the Cash Collateral
Account, the funds constituting such Advance or any other amounts from time
to
time on deposit in the Cash Collateral Account; provided
that the
foregoing shall not affect or impair the obligations of the Subordination Agent
to make the distributions contemplated by Section 3.6(e) or 3.6(f) of the
Intercreditor Agreement and provided further,
that
the foregoing shall not affect or impair the rights of the Liquidity Provider
to
provide written instructions with respect to the investment and reinvestment
of
amounts in the Cash Collateral Account to the extent provided in Section 2.2(b)
of the Intercreditor Agreement. By paying to the Borrower proceeds of Advances
requested by the Borrower in accordance with the provisions of this Agreement,
the Liquidity Provider makes no representation as to, and assumes no
responsibility for, the correctness or sufficiency for any purpose of the amount
of the Advances so made and requested.
Section
2.03. Fees.
The
Borrower agrees to pay to the Liquidity Provider the fees set forth in the
Fee
Letter applicable to this Agreement.
Section
2.04. Reductions
or Termination of the Maximum Commitment.
(a)
Automatic
Reduction.
Promptly following each date on which the Required Amount is reduced as a result
of a reduction (or deemed reduction) in the Pool Balance of the Certificates
or
otherwise, the Maximum Commitment shall automatically be reduced to an amount
equal to such reduced Required Amount (as calculated by the Borrower);
provided
that on
the first Regular Distribution Date, the Maximum Commitment shall automatically
be reduced to the then Required Amount. The Borrower shall give notice of any
such automatic reduction of the Maximum Commitment to the Liquidity Provider
within two Business Days thereof. The failure by the Borrower to furnish any
such notice shall not affect such automatic reduction of the Maximum
Commitment.
(b)
Termination.
The
obligation of the Liquidity Provider to make further Advances hereunder shall
automatically and irrevocably terminate, and the Borrower shall not be entitled
to request any further Borrowing hereunder upon:
(i) the
making of any Provider Advance;
(ii) the
making of a Special Termination Advance;
(iii) the
making of, or conversion to, a Final Advance; or
(iv) the
occurrence of the Termination Date.
Section
2.05. Repayments
of Interest Advances, the Special Termination Advance or the Final
Advance.
Subject
to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby agrees, without
notice of an Advance or demand for repayment from the Liquidity Provider (which
notice and demand are hereby waived by the Borrower), to pay, or to cause to
be
paid, to the Liquidity Provider on each date on which the Liquidity Provider
shall make an Interest Advance, the Special Termination Advance or the Final
Advance, an amount equal to (a) the amount of such Advance (any such
Advance, until repaid, is referred to herein as an "Unpaid
Advance"),
plus
(b) interest on the amount of each such Unpaid Advance as provided in Section
3.07 hereof; provided
that if
(i) the Liquidity Provider shall make a Provider Advance at any time after
making one or more Interest Advances which shall not have been repaid in
accordance with this Section 2.05 or (ii) this Liquidity Facility shall become
a
Downgraded Facility or an Early Terminated Facility at any time when
unreimbursed Interest Advances have reduced the Maximum Available Commitment
to
zero, then such Interest Advances shall cease to constitute Unpaid Advances
and
shall be deemed to have been changed into an Applied Downgrade Advance or an
Applied Early Termination Advance, as the case may be, for all purposes of
this
Agreement (including, without limitation, for the purpose of determining when
such Interest Advance is required to be repaid to the Liquidity Provider in
accordance with Section 2.06 and for the purposes of Section 2.06(b));
provided,
further,
that
amounts in respect of a Special Termination Advance withdrawn from the Cash
Collateral Account for the purpose of paying interest on the Certificates in
accordance with 3.6(f) of the Intercreditor Agreement (the amount of such
withdrawal being an "Applied
Special Termination Advance")
shall
thereafter be treated as an Interest Advance under this Agreement for the
purposes of determining the Applicable Liquidity Rate for interest payable
thereon; and provided,
further,
that
if,
following the making of a Special Termination Advance, the Liquidity Provider
delivers a Termination Notice to the Borrower pursuant to Section 6.01 hereof,
such Special Termination Advance shall thereafter be treated as a Final Advance
under this Agreement for purposes of determining the Applicable Liquidity Rate
for interest payable thereon and the obligation of repayment thereof. The
Borrower and the Liquidity Provider agree that the repayment in full of each
Interest Advance, the Special Termination Advance and Final Advance on the
date
such Advance is made is intended to be a contemporaneous exchange for new value
given to the Borrower by the Liquidity Provider.
Section
2.06. Repayments
of Provider Advances.
(a)
Amounts advanced hereunder in respect of a Provider Advance shall be deposited
in the Cash Collateral Account and invested and withdrawn from the Cash
Collateral Account as set forth in Sections 3.6(c), 3.6(d), 3.6(e) and 3.6(f)
of
the Intercreditor Agreement. Subject to Sections 2.07 and 2.09, the Borrower
agrees to pay to the Liquidity Provider, on each Regular Distribution Date,
commencing on the first Regular Distribution Date after the making of a Provider
Advance, interest on the principal amount of any such Provider Advance as
provided in Section 3.07 hereof; provided,
however,
that
amounts in respect of a Provider Advance withdrawn from the Cash Collateral
Account for the purpose of paying interest on the Certificates in accordance
with Section 3.6(f) of the Intercreditor Agreement (the amount of any such
withdrawal being (x) in the case of a Downgrade Advance, an "Applied
Downgrade Advance"
and (y)
in the case of an Early Termination Advance, an "Applied
Early Termination Advance"
and,
together with an Applied Downgrade Advance, an "Applied
Provider Advance")
shall
thereafter (subject to Section 2.06(b)) be treated as an Interest Advance under
this Agreement for purposes of determining the Applicable Liquidity Rate for
interest payable thereon; provided further,
however,
that
if, following the making of a Provider Advance, the Liquidity Provider delivers
a Termination Notice to the Borrower pursuant to Section 6.01 hereof, such
Provider Advance shall thereafter be treated as a Final Advance under this
Agreement for purposes of determining the Applicable Liquidity Rate for interest
payable thereon and the obligation for repayment thereof. Subject to Sections
2.07 and 2.09 hereof, immediately upon the withdrawal of any amounts from the
Cash Collateral Account pursuant to Section 3.6(f) of the Intercreditor
Agreement on account of a reduction (or deemed reduction) in the Required
Amount, the Borrower shall repay to the Liquidity Provider a portion of the
Provider Advances in a principal amount equal to such reduction, plus interest
on the principal amount prepaid as provided in Section 3.07 hereof.
(b)
At
any
time when an Applied Provider Advance (or any portion thereof) is outstanding,
upon the deposit in the Cash Collateral Account of any amount pursuant to clause
"third" of Section 2.4(b) of the Intercreditor Agreement, clause "third"
of
Section 3.2 of the Intercreditor Agreement or clause "fourth"
of
Section 3.3 of the Intercreditor Agreement (any such amount being a
"Replenishment
Amount")
for
the purpose of replenishing or increasing the balance thereof up to the Required
Amount at such time, (i) the aggregate outstanding principal amount of all
Applied Provider Advances (and of Provider Advances treated as an Interest
Advance for purposes of determining the Applicable Liquidity Rate for interest
payable thereon) shall be automatically reduced by the amount of such
Replenishment Amount and (ii) the aggregate outstanding principal amount of
all
Unapplied Provider Advances shall be automatically increased by the amount
of
such Replenishment Amount.
(c)
Upon
the
provision of a Replacement Liquidity Facility in replacement of this Agreement
in accordance with Section 3.6(e) of the Intercreditor Agreement, amounts
remaining on deposit in the Cash Collateral Account after giving effect to
any
Applied Provider Advance on the date of such replacement shall be reimbursed
to
the replaced Liquidity Provider, but only to the extent such amounts are
necessary to repay in full to the replaced Liquidity Provider all amounts owing
to it hereunder.
Section
2.07. Payments
to the Liquidity Provider Under the Intercreditor Agreement.
In
order to provide for payment or repayment to the Liquidity Provider of any
amounts hereunder, the Intercreditor Agreement provides that amounts available
and referred to in Articles II and III of the Intercreditor Agreement, to the
extent payable to the Liquidity Provider pursuant to the terms of the
Intercreditor Agreement (including, without limitation, Section 3.6(f) of the
Intercreditor Agreement), shall be paid to the Liquidity Provider in accordance
with the terms thereof. Amounts so paid to, and not required to be returned
by,
the Liquidity Provider shall be applied by the Liquidity Provider to Liquidity
Obligations then due and payable in accordance with the Intercreditor Agreement
and shall discharge in full the corresponding obligations of the Borrower
hereunder (or, if not provided for in the Intercreditor Agreement, then in
such
manner as the Liquidity Provider shall deem appropriate).
Section
2.08. Book
Entries.
The
Liquidity Provider shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower resulting from
Advances made from time to time and the amounts of principal and interest
payable hereunder and paid from time to time in respect thereof; provided,
however,
that
the failure by the Liquidity Provider to maintain such account or accounts
shall
not affect the obligations of the Borrower in respect of Advances.
Section
2.09. Payments
from Available Funds Only.
All
payments to be made by the Borrower under this Agreement shall be made only
from
the amounts that constitute Scheduled Payments, Special Payments or payments
under the Fee Letter, Section 9.1 of the Participation Agreements and Section
6
of the Note Purchase Agreement and only to the extent that the Borrower shall
have sufficient income or proceeds therefrom to enable the Borrower to make
payments in accordance with the terms hereof after giving effect to the priority
of payments and other applicable provisions set forth in the Intercreditor
Agreement. The Liquidity Provider agrees that it will look solely to such
amounts to the extent available for distribution to it as provided in the
Intercreditor Agreement and this Agreement. The Borrower, in its individual
capacity, is not personally liable to the Liquidity Provider for any amounts
payable or liability under this Agreement, except as expressly provided in
this
Agreement, the Intercreditor Agreement or any Participation Agreement. Amounts
on deposit in the Cash Collateral Account shall be available to the Borrower
to
make payments under this Agreement only to the extent and for the purposes
expressly contemplated in Section 3.6(f) of the Intercreditor
Agreement.
Section
2.10. Early
Termination Advance.
At any
time during an Early Termination Notice Period, the Liquidity Provider shall
have the right in its sole discretion to elect to terminate its obligations
to
make Advances under this Agreement upon not less than 25 days' written notice
(the "Early
Termination Notice")
to the
Borrower. If the Liquidity Provider delivers an Early Termination Notice to
the
Borrower during the Early Termination Notice Period (and if the Liquidity
Provider shall not have been replaced in accordance with Section
3.6(e)
of
the Intercreditor Agreement on or before the expiry of the Early Termination
Notice Period), the Borrower shall be entitled at any time prior to the Early
Termination Date to request an Early Termination Advance in accordance with
Section 2.02(b) hereof and Section 3.6(d) of the Intercreditor
Agreement.
OBLIGATIONS
OF THE BORROWER
Section
3.01. Increased
Costs.
The
Borrower shall pay to the Liquidity Provider from time to time such amounts
as
may be necessary to compensate the Liquidity Provider for any increased costs
incurred by the Liquidity Provider which are attributable to its making or
maintaining any Advances hereunder or its obligation to make any such Advances
hereunder, or any reduction in any amount receivable by the Liquidity Provider
under this Agreement or the Intercreditor Agreement in respect of any such
Advances or such obligation (such increases in costs and reductions in amounts
receivable being herein called "Additional
Costs"),
resulting from any change after the date of this Agreement in U.S. federal,
state, municipal, or foreign laws or regulations (including Regulation D of
the
Board of Governors of the Federal Reserve System), or the adoption or making
after the date of this Agreement of any interpretations, directives, or
requirements applying to a class of banks including the Liquidity Provider
under
any U.S. federal, state, municipal, or any foreign laws or regulations (whether
or not having the force of law) by any court, central bank or other supervisory
authority charged with the interpretation or administration thereof (a
"Regulatory
Change"),
which: (1) changes the basis of taxation of any amounts payable to the Liquidity
Provider under this Agreement in respect of any such Advances or such obligation
(other than with respect to Excluded Taxes); or (2) imposes or modifies any
reserve, special deposit, compulsory loan or similar requirements relating
to
any extensions of credit or other assets of, or any deposits with or other
liabilities of, the Liquidity Provider (including any such Advances or such
obligation or any deposits referred to in the definition of LIBOR or related
definitions).
The
Liquidity Provider will notify the Borrower of any event occurring after the
date of this Agreement that will entitle the Liquidity Provider to compensation
pursuant to this Section 3.01 as promptly as practicable after it obtains
knowledge thereof and determines to request such compensation, which notice
shall describe in reasonable detail the calculation of the amounts owed under
this Section. Determinations by the Liquidity Provider for purposes of this
Section 3.01 of the effect of any Regulatory Change on its costs of making
or
maintaining Advances or on amounts receivable by it in respect of Advances,
and
of the additional amounts required to compensate the Liquidity Provider in
respect of any Additional Costs, shall be prima facie evidence of the amount
owed under this Section.
Notwithstanding
the preceding two paragraphs, the Liquidity Provider and the Subordination
Agent
agree that any permitted assignee or participant of the initial Liquidity
Provider which is not a bank shall not be entitled to the benefits of the
preceding two paragraphs (but without limiting the provisions of Section 7.08
hereof).
Section
3.02. Capital
Adequacy.
If (1)
the adoption or change, after the date hereof, of any applicable governmental
law, rule or regulation regarding capital adequacy, (2)
any
change, after the date hereof, in the interpretation or administration of any
such law, rule or regulation by any central bank or other supervisory authority
charged with the interpretation or administration thereof or (3) compliance
by
the Liquidity Provider or any corporation controlling the Liquidity Provider
with any applicable guideline or request of general applicability, issued after
the date hereof, by any central bank or other supervisory authority (whether
or
not having the force of law) that constitutes a change of the nature described
in clause (2), has the effect of requiring an increase in the amount of capital
required to be maintained by the Liquidity Provider or any corporation
controlling the Liquidity Provider, and such increase is based upon the
Liquidity Provider's obligations or Advances hereunder and other similar
obligations or advances, the Borrower shall, subject to the provisions of
Section 3.11, pay to the Liquidity Provider from time to time such additional
amount or amounts as are necessary to compensate the Liquidity Provider for
such
portion of such increase as shall be reasonably allocable to the Liquidity
Provider's obligations to the Borrower hereunder.
The
Liquidity Provider will notify the Borrower of any event occurring after the
date of this Agreement that will entitle the Liquidity Provider to compensation
pursuant to this Section 3.02 as promptly as practicable after it obtains
knowledge thereof and determines to request such compensation, which notice
shall describe in reasonable detail the calculation of the amounts owed under
this Section. Determinations by the Liquidity Provider for purposes of this
Section 3.02 of the effect of any increase in the amount of capital required
to
be maintained by the Liquidity Provider and of the amount allocable to the
Liquidity Provider's obligations to the Borrower hereunder shall be prima facie
evidence of the amounts owed under this Section.
Notwithstanding
the preceding two paragraphs, the Liquidity Provider and the Subordination
Agent
agree that any permitted assignee or participant of the initial Liquidity
Provider which is not a bank shall not be entitled to the benefits of the
preceding two paragraphs (but without limiting the provisions of Section 7.08
hereof).
Section
3.03. Payments
Free of Deductions.
(a)
All
payments made by the Borrower under this Agreement shall be made free and clear
of and without reduction or withholding for or on account of any present or
future Taxes of any nature whatsoever now or hereafter imposed, levied,
collected, withheld or assessed, other than Excluded Withholding Taxes (such
non-excluded Taxes being referred to herein, collectively, as "Indemnified
Taxes"
and,
individually, as an "Indemnified
Tax")
unless
any such reduction or withholding is required by applicable law. If any Taxes
are required to be withheld from any amounts payable to the Liquidity Provider
under this Agreement, (i) the Borrower shall within the time prescribed therefor
by applicable law pay to the appropriate governmental or taxing authority the
full amount of any such Taxes (including any additional Tax required to be
deducted or withheld in respect of the additional amounts payable under clause
(ii) hereof) and make such reports or returns in connection therewith at the
time or times and in the manner prescribed by applicable law, and (ii) in the
case of Indemnified Taxes, the amounts payable to the Liquidity Provider shall
be increased to the extent necessary to yield to the Liquidity Provider (after
deduction or withholding for or on account of all Indemnified Taxes and any
additional Taxes required to be deducted or withheld or payable by the Liquidity
Provider by reason of the receipt or accrual of the additional amounts payable
pursuant to this clause (ii)) interest or any other such amounts payable under
this Agreement at the rates or in the
amounts
which would have been due or received by it if no such reduction or withholding
had been required. If the Liquidity Provider (including a successor Liquidity
Provider) is not organized under the laws of the United States or any state
thereof, to the extent it is eligible to do so, the Liquidity Provider agrees
to
provide to the Borrower, prior to the first date any amount is payable to it
hereunder, two executed original copies of Internal Revenue Service Form W-8BEN
or W-8ECI, as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that the Liquidity Provider is exempt
from
or entitled to a reduced rate of United States withholding Tax on payments
pursuant to this Agreement. In addition, the Liquidity Provider will provide,
from time to time upon the reasonable request of the Borrower, such additional
forms or documentation as may be necessary to establish an available exemption
from (or an entitlement to a reduced rate of) withholding Tax on payments
hereunder. Within 30 days after the date of each payment hereunder, the Borrower
shall furnish to the Liquidity Provider an original or certified copy of a
receipt (or other documentary evidence reasonably acceptable to the Liquidity
Provider) evidencing the payment of the Taxes applicable to such
payment.
(b)
If the Liquidity Provider (including a successor Liquidity Provider) is not
organized under the laws of the United States or any state thereof, all Advances
made by the Liquidity Provider under this Agreement shall be made free and
clear
of, and without reduction for or on account of, any Taxes that are imposed
by a
jurisdiction in which the Liquidity Provider is organized, has its Lending
Office or maintains its principal place of business unless such reduction or
withholding is required by applicable law. If any such Taxes are required to
be
withheld or deducted from any Advances, the Liquidity Provider shall
(i) within the time prescribed therefor by applicable law pay to the
appropriate governmental or taxing authority the full amount of any such Taxes
(and any additional Taxes in respect of the additional amounts payable under
clause (ii) hereof) and make such reports or returns in connection
therewith at the time or times and in the manner prescribed by applicable law,
and (ii) pay to the Borrower an additional amount which (after deduction of
all such Taxes) shall be sufficient to yield to the Borrower the full amount
that would have been received by it had no such withholding or deduction been
required. The Borrower shall, for United States federal income tax purposes
and
for all purposes hereunder, treat such payments as Interest Advances, and,
as
such, will treat such payments as loans made by the Liquidity Provider to the
Borrower, unless otherwise required by law (it being understood and agreed
that
the treatment of such additional amounts shall not reduce the Maximum Available
Commitment hereunder). Within 30 days after the date of each payment hereunder,
the Liquidity Provider shall furnish to the Borrower an original or certified
copy of a receipt (or other documentary evidence reasonably acceptable to the
Borrower) evidencing the payment of the Taxes applicable to such
payment.
(c)
If any exemption from, or reduction in the rate of, any Taxes required to be
deducted or withheld from amounts payable by the Liquidity Provider hereunder
is
reasonably available to the Borrower to establish that payments under this
Agreement are exempt from (or entitled to a reduced rate of) Tax, the Borrower
shall deliver to the Liquidity Provider such form or forms and such other
evidence of the eligibility of the Borrower for such exemption or reduction
as
the Liquidity Provider may reasonably identify to the Borrower as being required
as a condition to exemption from, or reduction in the rate of, any such
Taxes.
Section
3.04. Payments.
The Borrower shall make or cause to be made each payment to the Liquidity
Provider under this Agreement so as to cause the same to be received by the
Liquidity Provider not later than 1:00 p.m. (New York City time) on the day
when
due. The Borrower shall make all such payments in U.S. dollars, to the Liquidity
Provider in immediately available funds, by wire transfer to Deutsche Bank
Trust
Company Americas, New York, ABA No. 021-001-033, Swift Code: BKTRUS33,
Account Holder: Landesbank Baden-Württemberg, Stuttgart, Account
No. 04-095-107, Swift Code: SOLADEST, Reference: Loan Administration,
Continental EETC 2005-ERJ1; or to such other bank account in the United States
as the Liquidity Provider may from time to time direct the Subordination
Agent.
Section
3.05. Computations.
All
computations of interest based on the Base Rate shall be made on the basis
of a
year of 365 or 366 days, as the case may be, and all computations of interest
based on LIBOR shall be made on the basis of a year of 360 days, in each case
for the actual number of days (including the first day but excluding the last
day) occurring in the period for which such interest is payable.
Section
3.06. Payment
on Non-Business Days.
Whenever any payment to be made hereunder shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation
of
interest payable hereunder (and if so made, shall be deemed to have been made
when due).
Section
3.07. Interest.
(a)
Subject
to Section 2.09, the Borrower shall pay, or shall cause to be paid, without
duplication, interest on (i) the unpaid principal amount of each Advance from
and including the date of such Advance (or, in the case of an Applied Provider
Advance or Applied Special Termination Advance, from and including the date
on
which the amount thereof was withdrawn from the Cash Collateral Account to
pay
interest on the Certificates) to but excluding the date such principal amount
shall be paid in full (or, in the case of an Applied Provider Advance or Applied
Special Termination Advance, the date on which the Cash Collateral Account
is
fully replenished in respect of such Advance) and (ii) any other amount due
hereunder (whether fees, commissions, expenses or other amounts or, to the
extent permitted by law, installments of interest on Advances or any such other
amount) that is not paid when due (whether at stated maturity, by acceleration
or otherwise) from and including the due date thereof to but excluding the
date
such amount is paid in full, in each such case, at a fluctuating interest rate
per annum for each day equal to the Applicable Liquidity Rate (as defined below)
for such Advance or such other amount, as the case may be, as in effect for
such
day, but in no event at a rate per annum greater than the maximum rate permitted
by applicable law; provided,
however,
that,
if at any time the otherwise applicable interest rate as set forth in this
Section 3.07 shall exceed the maximum rate permitted by applicable law, then
any
subsequent reduction in such interest rate will not reduce the rate of interest
payable pursuant to this Section 3.07 below the maximum rate permitted by
applicable law until the total amount of interest accrued equals the amount
of
interest that would have accrued if such otherwise applicable interest rate
as
set forth in this Section 3.07 had at all times been in effect.
(b)
Each
Advance (including, without limitation, each outstanding Unapplied Provider
Advance and Unapplied Special Termination Advance) will be either a Base Rate
Advance or a LIBOR Advance as provided in this Section 3.07. Each such Advance
will be a Base Rate Advance for the period from the date of its borrowing to
(but excluding) the third London/Stuttgart Business Day following the Liquidity
Provider's receipt of the Notice of Borrowing for such Advance. Thereafter,
such
Advance shall be a LIBOR Advance; provided
that the
Borrower (at the direction of the Controlling Party, so long as the Liquidity
Provider is not the Controlling Party) may (x) convert the Final Advance into
a
Base Rate Advance on the last day of an Interest Period for such Advance by
giving the Liquidity Provider no less than four Business Days' prior written
notice of such election or (y) elect to maintain the Final Advance as a Base
Rate Advance by not requesting a conversion of the Final Advance to a LIBOR
Advance under Clause (5) of the applicable Notice of Borrowing (or, if such
Final Advance is deemed to have been made, without delivery of a Notice of
Borrowing pursuant to Section 2.06, by requesting, prior to 11:00 a.m. (New
York
City time) on the first Business Day immediately following the Borrower's
receipt of the applicable Termination Notice, that such Final Advance not be
converted from a Base Rate Advance to a LIBOR Advance).
(c)
Each
LIBOR Advance shall bear interest during each Interest Period at a rate per
annum equal to LIBOR for such Interest Period plus the Applicable Margin for
such LIBOR Advance, payable in arrears on the last day of such Interest Period
and, in the event of the payment of principal of such LIBOR Advance on a day
other than such last day, on the date of such payment (to the extent of interest
accrued on the amount of principal repaid).
(d)
Each
Base
Rate Advance shall bear interest at a rate per annum equal to the Base Rate
in
effect from time to time plus the Applicable Margin for such Base Rate Advance,
payable in arrears on each Regular Distribution Date and, in the event of the
payment of principal of such Base Rate Advance on a day other than a Regular
Distribution Date, on the date of such payment (to the extent of interest
accrued on the amount of principal repaid).
(e)
Each
amount not paid when due hereunder (whether fees, commissions, expenses or
other
amounts or, to the extent permitted by applicable law, installments of interest
on Advances but excluding Advances) shall bear interest at a rate per annum
equal to the Base Rate plus 2.00% until paid.
(f)
Each
change in the Base Rate shall become effective immediately. The rates of
interest specified in this Section 3.07 with respect to any Advance or other
amount shall be referred to as the "Applicable
Liquidity Rate".
Section
3.08. Replacement
of Borrower.
From
time to time and subject to the successor Borrower's meeting the eligibility
requirements set forth in Section 6.9 of the Intercreditor Agreement applicable
to the Subordination Agent, upon the effective date and time specified in a
written and completed Notice of Replacement Subordination Agent in substantially
the form of Annex VII attached hereto (a "Notice
of Replacement Subordination Agent")
delivered to the Liquidity Provider by the then Borrower, the successor Borrower
designated therein shall be substituted for the Borrower for all purposes
hereunder.
Section
3.09. Funding
Loss Indemnification. The Borrower shall pay to the Liquidity
Provider, upon the request of the Liquidity Provider, such amount or amounts
as
shall be sufficient (in the reasonable opinion of the Liquidity Provider)
to
compensate it for any loss, cost, or expense incurred by reason of the
liquidation or redeployment of deposits or other funds acquired by the Liquidity
Provider to fund or maintain any LIBOR Advance (but excluding loss of
anticipated profits) incurred as a result of:
(a)
Any
repayment of a LIBOR Advance on a date other than the last day of the Interest
Period for such Advance; or
(b)
Any
failure by the Borrower to borrow a LIBOR Advance on the date for borrowing
specified in the relevant notice under Section 2.02.
Section
3.10. Illegality.
Notwithstanding any other provision in this Agreement, if any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by the Liquidity Provider (or its Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank
or
comparable agency shall make it unlawful or impossible for the Liquidity
Provider (or its Lending Office) to maintain or fund its LIBOR Advances, then
upon notice to the Borrower by the Liquidity Provider, the outstanding principal
amount of LIBOR Advances shall be converted to Base Rate Advances (a)
immediately upon demand of the Liquidity Provider, if such change or compliance
with such request, in the judgment of the Liquidity Provider, requires immediate
repayment; or (b) at the expiration of the last Interest Period to expire before
the effective date of any such change or request.
Section
3.11. Mitigation.
If a
condition arises or an event occurs which would, or would upon the giving of
notice, result in the payment of any additional costs or amounts pursuant to
Section 3.01, 3.02 or 3.03 or require the conversion of any Advance pursuant
to
Section 3.10, the Liquidity Provider, promptly upon becoming aware of the same,
shall notify the Borrower and shall use reasonable efforts (consistent with
applicable legal and regulatory restrictions) to mitigate the effects of such
condition or event, including the designation of a different Lending Office
or
furnishing of the proper certificates under any applicable tax laws, tax
treaties and conventions to the extent that such certificates are legally
available to the Liquidity Provider; provided,
that
the Liquidity Provider shall be under no obligation to take any step that,
in
its good-faith opinion would (i) result in its incurring any additional costs
in
performing its obligations hereunder unless the Borrower has agreed to reimburse
it therefor or (ii) be otherwise disadvantageous to the Liquidity Provider
in
the reasonable judgment of the Liquidity Provider.
CONDITIONS
PRECEDENT
Section
4.01. Conditions
Precedent to Effectiveness of Section 2.01.
Section
2.01 of this Agreement shall become effective on and as of the first date (the
"Effective
Date")
on
which the following conditions precedent have been satisfied or
waived:
(a)
The
Liquidity Provider shall have received each of the following, and in the case
of
each document delivered pursuant to paragraphs (i), (ii) and (iii), each in
form
and substance satisfactory to the Liquidity Provider:
|
|
(i)
|
This
Agreement duly executed on behalf of the Borrower and the Fee
Letter
applicable to this Agreement duly executed on behalf of each
of the
parties thereto (other than the Liquidity Provider);
|
|
(ii)
|
The
Intercreditor Agreement duly executed on behalf of each of
the parties
thereto (other than the Liquidity Provider);
|
|
|
(iii)
|
Fully
executed copies of each of the Operative Agreements duly executed
and
delivered on or before the Closing Date (other than this Agreement,
the
Fee Letter applicable to this Agreement and the Intercreditor
Agreement);
|
|
|
(iv)
|
A
copy of the Prospectus Supplement and specimen copies of the
Certificates;
|
|
|
(v)
|
An
executed copy of each document, instrument, certificate and
opinion
delivered on or before the Closing Date pursuant to the Trust
Agreement,
the Intercreditor Agreement and the other Operative Agreements
(in the
case of each such opinion, other than the opinion of counsel
for the
Underwriter, either addressed to the Liquidity Provider or
accompanied by
a letter from the counsel rendering such opinion to the effect
that the
Liquidity Provider is entitled to rely on such opinion as of
its date as
if it were addressed to the Liquidity Provider);
|
|
|
(vi)
|
Evidence
that there shall have been made and shall be in full force
and effect, all
filings, recordings and/or registrations, and there shall have
been given
or taken any notice or other similar action as may be reasonably
necessary
or, to the extent reasonably requested by the Liquidity Provider,
reasonably advisable, in order to establish, perfect, protect
and preserve
the right, title and interest, remedies, powers, privileges,
liens and
security interests of, or for the benefit of, the Trustee,
the Borrower
and the Liquidity Provider created by the Operative Agreements
executed
and delivered on or prior to the Closing Date;
|
|
|
(vii)
|
An
agreement from Continental, pursuant to which (A) Continental
agrees to
provide copies of quarterly financial statements and audited
annual
financial statements to the Liquidity Provider, and such other
information
as the Liquidity Provider shall reasonably request with respect
to the
transactions contemplated by the Operative Agreements, in each
case, only
to the extent that Continental is obligated to provide such
information
pursuant to Section 8.2.1 of the Leases to the parties thereto
and (B)
Continental agrees to allow the Liquidity Provider to inspect
|
|
Continental's
books and records regarding such transactions, and to discuss such
transactions with officers and employees of Continental; and
|
||
|
(viii)
|
Such
other documents, instruments, opinions and approvals pertaining
to the
transactions contemplated hereby or by the other Operative Agreements
as
the 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
Agreement shall have been satisfied or waived and all conditions precedent
to
the purchase of the Certificates by the Underwriter under the Underwriting
Agreement shall have been satisfied or waived.
(e)
The
Borrower shall have received a certificate, dated the date hereof, signed by
a
duly authorized representative of the Liquidity Provider, certifying that all
conditions precedent to the effectiveness of Section 2.01 have been satisfied
or
waived.
Section
4.02. Conditions
Precedent to Borrowing.
The
obligation of the Liquidity Provider to make an Advance on the occasion of
each
Borrowing shall be subject to the conditions precedent that the Effective Date
shall have occurred and, on or prior to the date of such Borrowing, the Borrower
shall have delivered a Notice of Borrowing which conforms to the terms and
conditions of this Agreement and has been completed as may be required by the
relevant form of the Notice of Borrowing for the type of Advance
requested.
COVENANTS
Section
5.01. Affirmative
Covenants of the Borrower.
So long
as any Advance shall remain unpaid or the Liquidity Provider shall have any
Maximum Commitment hereunder or the Borrower shall have any obligation to pay
any amount to the Liquidity Provider hereunder, the Borrower will, unless the
Liquidity Provider shall otherwise consent in writing:
(a)
Performance
of This and Other Agreements.
Punctually pay or cause to be paid all amounts payable by it under this
Agreement and the other Operative Agreements and observe and perform in all
material respects the conditions, covenants and requirements applicable to
it
contained in this Agreement and the other Operative Agreements.
(b)
Reporting
Requirements.
Furnish
to the Liquidity Provider with reasonable promptness, such other information
and
data with respect to the transactions
contemplated
by the Operative Agreements as from time to time may be reasonably requested
by
the Liquidity Provider; and permit the Liquidity Provider, upon reasonable
notice, to inspect the Borrower's books and records with respect to such
transactions and to meet with officers and employees of the Borrower to discuss
such transactions.
(c)
Certain
Operative Agreements.
Furnish
to the Liquidity Provider with reasonable promptness, such Operative Agreements
entered into after the date hereof as from time to time may be reasonably
requested by the Liquidity Provider.
Section
5.02. Negative
Covenants of the Borrower.
So long
as any Advance shall remain unpaid or the Liquidity Provider shall have any
Maximum Commitment hereunder or the Borrower shall have any obligation to pay
any amount to the Liquidity Provider hereunder, the Borrower will not appoint
or
permit or suffer to be appointed any successor Borrower without the prior
written consent of the Liquidity Provider, which consent shall not be
unreasonably withheld or delayed.
LIQUIDITY
EVENTS OF DEFAULT
AND
SPECIAL TERMINATION
Section
6.01. Liquidity
Events of Default.
If (a)
any Liquidity Event of Default has occurred and is continuing and (b) there
is a Performing Note Deficiency, the Liquidity Provider may, in its discretion,
deliver to the Borrower a Termination Notice, the effect of which shall be
to
cause (i) the obligation of the Liquidity Provider to make Advances hereunder
to
expire on the fifth Business Day after the date on which such Termination Notice
is received by the Borrower, (ii) the Borrower to promptly request, and the
Liquidity Provider to promptly make, a Final Advance in accordance with Section
2.02(e) hereof and Section 3.6(i) of the Intercreditor Agreement, (iii) all
other outstanding Advances to be automatically converted into Final Advances
for
purposes of determining the Applicable Liquidity Rate for interest payable
thereon, and (iv) subject to Sections 2.07 and 2.09 hereof, all Advances
(including, without limitation, any Provider Advance and Applied Provider
Advance), any accrued interest thereon and any other amounts outstanding
hereunder to become immediately due and payable to the Liquidity
Provider.
Section
6.02. Special
Termination.
If the
aggregate Pool Balance of the Certificates is greater than the aggregate
outstanding principal amount of the Equipment Notes (other than any Equipment
Notes previously sold or with respect to which the collateral securing such
Equipment Notes has been disposed of) at any time during the 18-month period
prior to April 1, 2021, the Liquidity Provider may, in its discretion, deliver
to the Borrower a Special Termination Notice, the effect of which shall be
to
cause (a) the obligation of the Liquidity Provider to make Advances hereunder
to
expire on the fifth Business Day after the date on which such Special
Termination Notice is received by the Borrower, (b) the Borrower to
promptly request, and the Liquidity Provider to promptly make, a Special
Termination Advance in accordance with Section 2.02(f) hereof and
Section 3.6(k) of the Intercreditor Agreement and (c) subject to
Sections 2.07 and 2.09 hereof, all Advances (including, without limitation,
any Provider Advance and Applied Provider Advance), any accrued interest thereon
and any other
amounts
outstanding hereunder to become immediately due and payable to the Liquidity
Provider.
MISCELLANEOUS
Section
7.01. Amendments,
Etc.
No
amendment or waiver of any provision of this Agreement, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless
the
same shall be in writing and signed by the Liquidity Provider and, in the case
of an amendment or of a waiver by the Borrower, the Borrower, and then such
waiver or consent shall be effective only in the specific instance and for
the
specific purpose for which given.
Section
7.02. Notices,
Etc.
Except
as
otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including mailed or delivered or
sent by telecopier):
|
If
to the Borrower, to:
|
Wilmington
Trust Company
Rodney Square North 1100 North Market Street Wilmington, DE 19890-0001 Attention: Corporate Trust Administration Telephone: (800) 733-8485 Telecopy: (302) 651-8882 |
|
|
If
to the Liquidity Provider, to:
|
Landesbank
Baden-Württemberg
Am Hauptbahnhof 2 D-70173 Stuttgart Germany Attention: Structured Finance Telephone: +49 711 1244 9757 Telecopy: +49 711 1244 9747 |
|
with
a copy of any Notice of Borrowing to:
|
Landesbank
Baden-Württemberg
280 Park Avenue, West Building, 31st Floor New York, New York 10017 Attention: Claudia Rothe/Bette Smolen Telephone: (212) 584-1700 Telecopy: (212) 584-1729 |
or,
as to
each of the foregoing, at such other address as shall be designated by such
Person in a written notice to the others. All such notices and communications
shall be effective (i) if given by telecopier, when transmitted to the
telecopier number specified above with receipt confirmed, (ii) if given by
mail,
five Business Days after being deposited in the mails addressed as specified
above (for purposes of notices and communications other than Notices of
Borrowing, the term "Business Day" shall, for purposes of this
Section 7.02, be deemed to exclude any day in which
commercial
banks are required or authorized to close in Stuttgart, Germany), and (iii)
if
given by other means, when delivered at the address specified above, except
that
notices to the Liquidity Provider pursuant to the provisions of Article II
and
Article III hereof shall not be effective until received by the Liquidity
Provider, subject to the provisions of the second sentence of Section 2.02(g).
A
copy of all notices delivered hereunder to either party shall in addition be
delivered to each of the parties to the Participation Agreements at their
respective addresses set forth therein.
Section
7.03. No
Waiver; Remedies.
No
failure on the part of the Liquidity Provider to exercise, and no delay in
exercising, any right under this Agreement shall operate as a waiver thereof;
nor shall any single or partial exercise of any right under this Agreement
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section
7.04. Further
Assurances.
The
Borrower agrees to do such further acts and things and to execute and deliver
to
the Liquidity Provider such additional assignments, agreements, powers and
instruments as the Liquidity Provider may reasonably require or deem advisable
to carry into effect the purposes of this Agreement and the other Operative
Agreements or to better assure and confirm unto the Liquidity Provider its
rights, powers and remedies hereunder and under the other Operative
Agreements.
Section
7.05. Indemnification;
Survival of Certain Provisions.
The
Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Section 9.1 of the Participation Agreements. In addition,
the Borrower agrees to indemnify, protect, defend and hold harmless the
Liquidity Provider from, against and in respect of, and shall pay on demand,
all
Expenses of any kind or nature whatsoever (other than any Expenses of the nature
described in Section 3.01, 3.02 or 7.07 hereof or in the Fee Letter applicable
to this Agreement (regardless of whether indemnified against pursuant to said
Sections or in such Fee Letter)), that may be imposed on, incurred by or
asserted against any Liquidity Indemnitee, in any way relating to, resulting
from, or arising out of or in connection with any action, suit or proceeding
by
any third party against such Liquidity Indemnitee and relating to this
Agreement, the Fee Letter applicable to this Agreement, the Intercreditor
Agreement or any Financing Agreement; provided,
however,
that
the Borrower shall not be required to indemnify, protect, defend and hold
harmless any Liquidity Indemnitee in respect of any Expense of such Liquidity
Indemnitee to the extent such Expense is (i) attributable to the gross
negligence or willful misconduct of such Liquidity Indemnitee or any other
Liquidity Indemnitee; (ii) ordinary and usual operating overhead expense;
(iii) attributable to the failure by the Liquidity Provider to perform or
observe any agreement, covenant or condition on its part to be performed or
observed in this Agreement or the Intercreditor Agreement, or (iv) a Tax. The
indemnities contained in Section 9.1 of the Participation Agreements, and the
provisions of Sections 3.01, 3.02, 3.03, 3.09, 7.05 and 7.07 hereof, shall
survive the termination of this Agreement.
Section
7.06. Liability
of the Liquidity Provider.
(a)
Neither
the Liquidity Provider nor any of its officers, employees, directors or
Affiliates shall be liable or responsible for: (i) the use which may be made
of
the Advances or any acts or omissions of the Borrower or any beneficiary or
transferee in connection therewith; (ii) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if
such
documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; or (iii) the making of Advances by the Liquidity Provider
against delivery of a Notice of Borrowing and other documents which do not
comply with the terms hereof; provided,
however,
that
the Borrower shall have a claim against the Liquidity Provider, and the
Liquidity Provider shall be liable to the Borrower, to the extent of any damages
suffered by the Borrower which were the result of (A) the Liquidity Provider's
willful misconduct or gross negligence in determining whether documents
presented hereunder comply with the terms hereof, or (B) any breach by the
Liquidity Provider of any of the terms of this Agreement, including, but not
limited to, the Liquidity Provider's failure to make lawful payment hereunder
after the delivery to it by the Borrower of a Notice of Borrowing strictly
complying with the terms and conditions hereof. In no event, however, shall
the
Liquidity Provider be liable on any theory of liability for any special,
indirect, consequential or punitive damages (including, without limitation,
any
loss of profits, business or anticipated savings).
(b)
Neither
the Liquidity Provider nor any of its officers, employees, directors or
Affiliates shall be liable or responsible in any respect for (i) any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with this Agreement or
any
Notice of Borrowing delivered hereunder, or (ii) any action, inaction or
omission which may be taken by it in good faith, absent willful misconduct
or
gross negligence (in which event the extent of the Liquidity Provider's
potential liability to the Borrower shall be limited as set forth in the
immediately preceding paragraph), in connection with this Agreement or any
Notice of Borrowing.
Section
7.07. Costs,
Expenses and Taxes.
The
Borrower agrees to pay, or cause to be paid (a) on the Effective Date and on
such later date or dates on which the Liquidity Provider shall make demand,
all
reasonable out-of-pocket costs and expenses (including, without limitation,
the
reasonable fees and expenses of outside counsel for the Liquidity Provider)
of
the Liquidity Provider in connection with the preparation, negotiation,
execution, delivery, filing and recording of this Agreement, any other Operative
Agreement and any other documents which may be delivered in connection with
this
Agreement and (b) on demand, all reasonable costs and expenses (including
reasonable counsel fees and expenses) of the Liquidity Provider in connection
with (i) the enforcement of this Agreement or any other Operative Agreement,
(ii) the modification or amendment of, or supplement to, this Agreement or
any
other Operative Agreement or such other documents which may be delivered in
connection herewith or therewith (whether or not the same shall become
effective) or any waiver or consent thereunder (whether or not the same shall
become effective) or (iii) any action or proceeding relating to any order,
injunction, or other process or decree restraining or seeking to restrain the
Liquidity Provider from paying any amount under this Agreement, the
Intercreditor Agreement or any other Operative Agreement or otherwise affecting
the application of funds in the Cash Collateral Account. In addition, the
Borrower shall pay any and all recording, stamp and other similar taxes and
fees
payable or determined to be payable in connection with the execution, delivery,
filing and recording of this Agreement, any other Operative Agreement and such
other documents, and agrees to hold the Liquidity Provider harmless from and
against any and all liabilities with respect to or resulting from any delay
in
paying or omission to pay such taxes or fees.
Section
7.08. Binding
Effect; Participations.
(a)
This Agreement shall be binding upon and inure to the benefit of the Borrower
and the Liquidity Provider and their respective successors and assigns, except
that neither the Liquidity Provider (except as otherwise provided in this
Section 7.08) nor (except as contemplated by Section 3.08) the Borrower shall
have the right to assign its rights or obligations hereunder or any interest
herein without the prior written consent of the other party, subject to the
requirements of Section 7.08(b) and any assignment in violation thereof shall
be
void ab initio. The Liquidity Provider may grant
participations herein or in any of its rights hereunder (including, without
limitation, funded participations and participations in rights to receive
interest payments hereunder) and under the other Operative Agreements to such
Persons (other than Continental and its Affiliates) as the Liquidity Provider
may in its sole discretion select, subject to the requirements of Section
7.08(b). No such granting of participations by the Liquidity Provider, however,
will relieve the Liquidity Provider of its obligations hereunder. In connection
with any participation or any proposed participation, the Liquidity Provider
may
disclose to the participant or the proposed participant any information that
the
Borrower is required to deliver or to disclose to the Liquidity Provider
pursuant to this Agreement. The Borrower acknowledges and agrees that the
Liquidity Provider's source of funds may derive in part from its participants.
Accordingly, references in this Agreement and the other Operative Agreements
to
determinations, reserve and capital adequacy requirements, increased costs,
reduced receipts, additional amounts due pursuant to Section 3.03 and the like
as they pertain to the Liquidity Provider shall be deemed also to include those
of each of its participants that are banks (subject, in each case, to the
maximum amount that would have been incurred by or attributable to the Liquidity
Provider directly if the Liquidity Provider, rather than the participant, had
held the interest participated).
(b)
If,
pursuant to subsection (a) above, the Liquidity Provider sells any participation
in this Agreement to any bank or other entity (each, a "Transferee"),
then,
concurrently with the effectiveness of such participation, the Transferee shall
(i) represent to the Liquidity Provider (for the benefit of the Liquidity
Provider and the Borrower) either (A) that it is incorporated under the laws
of
the United States or a state thereof or (B) that under applicable law and
treaties, no taxes will be required to be withheld with respect to any payments
to be made to such Transferee in respect of this Agreement, (ii) furnish to
the
Liquidity Provider and the Borrower either (x) a statement that it is
incorporated under the laws of the United States or a state thereof or (y)
if it
is not so incorporated, two copies of a properly completed United States
Internal Revenue Service Form W-8ECI or Form W-8BEN, as appropriate, or other
applicable form, certificate or document prescribed by the Internal Revenue
Service certifying, in each case, such Transferee's entitlement to a complete
exemption from United States federal withholding tax in respect to any and
all
payments to be made hereunder, and (iii) agree (for the benefit of the Liquidity
Provider and the Borrower) to provide the Liquidity Provider and the Borrower
a
new Form W-8ECI or Form W-8BEN, as appropriate, or other applicable form, (A)
on
or before the date that any such form expires or becomes obsolete or (B) after
the occurrence of any event requiring a change in the most recent form
previously delivered by it and prior to the immediately following due date
of
any payment by the Borrower hereunder, certifying in the case of a Form W-8BEN
or Form W-8ECI that such Transferee is entitled to a complete exemption from
United States federal withholding tax on payments under this Agreement. Unless
the Borrower has received forms or other documents reasonably satisfactory
to it
(and required by applicable law) indicating that payments hereunder are not
subject to United States
federal
withholding tax, the Borrower will withhold taxes as required by law from such
payments at the applicable statutory rate.
(c)
Notwithstanding
the other provisions of this Section 7.08, the Liquidity Provider may assign
and
pledge all or any portion of the Advances owing to it to any Federal Reserve
Bank or the United States Treasury as collateral security pursuant to Regulation
A of the Board of Governors of the Federal Reserve System and any Operating
Circular issued by such Federal Reserve Bank, provided that any payment in
respect of such assigned Advances made by the Borrower to the Liquidity Provider
in accordance with the terms of this Agreement shall satisfy the Borrower's
obligations hereunder in respect of such assigned Advance to the extent of
such
payment. No such assignment shall release the Liquidity Provider from its
obligations hereunder.
Section
7.09. Severability.
Any
provision of this Agreement which is or becomes invalid, prohibited,
unenforceable or not authorized in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, prohibition,
unenforceability or non-authorization without affecting or invalidating the
remaining provisions hereof as to such jurisdiction or affecting the validity,
enforceability or legality of such provision in any other
jurisdiction.
Section
7.10. GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE
STATE OF NEW YORK.
Section
7.11. Submission
to Jurisdiction; Waiver of Jury Trial.
(a)
Each
of
the parties hereto hereby irrevocably and unconditionally:
(i)
submits
for itself and its property in any legal action or proceeding relating to this
Agreement or any other Operative Agreement, or for recognition and enforcement
of any judgment in respect hereof or thereof, to the nonexclusive general
jurisdiction of the courts of the State of New York (sitting in the City of
New
York), the courts of the United States of America for the Southern District
of
New York, and the appellate courts from any thereof;
(ii)
consents
that any such action or proceeding may be brought in such courts, and waives
any
objection that it may now or hereafter have to the venue of any such action
or
proceeding in any such court or that such action or proceeding was brought
in an
inconvenient court and agrees not to plead or claim the same;
(iii)
agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to each party hereto at its address
set
forth in Section 7.02 hereof, or at such other address of which the Liquidity
Provider shall have been notified pursuant thereto; and
(iv)
agrees
that nothing herein shall affect the right to effect service of process in
any
other manner permitted by law or shall limit the right to sue in any other
jurisdiction.
(b)
THE
BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE TO WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT
OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER
OF
THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING ESTABLISHED, including,
without limitation, contract claims, tort claims, breach of duty claims and
all
other common law and statutory claims. The Borrower and the Liquidity Provider
each warrant and represent that it has reviewed this waiver with its legal
counsel, and that it knowingly and voluntarily waives its jury trial rights
following consultation with such legal counsel. THIS WAIVER IS IRREVOCABLE,
AND
CANNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY
TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT.
(c)
The
Liquidity Provider hereby waives any immunity it may have from the jurisdiction
of the courts of the United States or of any state thereof and waives any
immunity any of its properties located in the United States may have from
attachment or execution upon a judgment entered by any such court under the
United States Foreign Sovereign Immunities Act of 1976 or any similar successor
legislation.
Section
7.12. Execution
in Counterparts. This
Agreement may be executed in any number of counterparts and by different parties
hereto on separate counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section
7.13. Entirety.
This
Agreement, the Intercreditor Agreement and the other Operative Agreements to
which the Liquidity Provider is a party constitute the entire agreement of
the
parties hereto with respect to the subject matter hereof and supersedes all
prior understandings and agreements of such parties.
Section
7.14. Headings.
Section
headings in this Agreement are included herein for convenience of reference
only
and shall not constitute a part of this Agreement for any other
purpose.
Section
7.15. LIQUIDITY
PROVIDER'S OBLIGATION TO MAKE ADVANCES.
EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE LIQUIDITY
PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO DELIVER
NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL BE
UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE
STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered by their respective officers or representatives thereunto duly
authorized as of the date first set forth above.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as
Subordination
Agent, as agent and trustee
for
the
Trust, as Borrower
By___________________________________
Name:
Title:
LANDESBANK
BADEN-WÜRTTEMBERG,
as
Liquidity Provider
By___________________________________
Name:
Title:
By___________________________________
Name:
Title:
Annex
I to
Revolving
Credit Agreement
INTEREST
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
"Borrower"),
hereby certifies to Landesbank Baden-Württemberg (the "Liquidity
Provider"),
with
reference to the Revolving Credit Agreement (2005-ERJ1) dated as of
September 22, 2005, between the Borrower and the Liquidity Provider (the
"Liquidity
Agreement";
the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The
Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The
Borrower is delivering this Notice of Borrowing for the making of an Interest
Advance by the Liquidity Provider to be used, subject to clause (3)(v) below,
for the payment of interest on the Certificates which was payable on
____________, ____ (the "Distribution
Date")
in
accordance with the terms and provisions of the Trust Agreement and the
Certificates, which Advance is requested to be made on ____________, ____.
The
Interest Advance should be transferred to [name of bank/wire instructions/ABA
number] in favor of account number [ __ ], reference [ __ ].
(3) The
amount of the Interest Advance requested hereby (i) is $_______________.__,
to
be applied in accordance with Sections 3.6(a) and 3.6(b) of the Intercreditor
Agreement in respect of the payment of the interest which was due and payable
on
the Certificates on the Distribution Date, (ii) does not include any amount
with
respect to the payment of principal of, or premium on, the Certificates, (iii)
was computed in accordance with the provisions of the Certificates, the Trust
Agreement and the Intercreditor Agreement (a copy of which computation is
attached hereto as Schedule I), (iv) does not exceed the Maximum Available
Commitment on the date hereof, (v) does not include any amount of interest
which
was due and payable on the Certificates on such Distribution Date but which
remains unpaid due to the failure of the Depositary to pay any amount of accrued
interest on the Deposits on such Distribution Date and (vi) has not been and
is
not the subject of a prior or contemporaneous Notice of Borrowing.
(4) Upon
receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the
Borrower will apply the same in accordance with the terms of Section 3.6(b)
of the Intercreditor Agreement, (b) no portion of such amount shall be applied
by the Borrower for any other purpose and (c) no portion of such amount until
so
applied shall be commingled with other funds held by the Borrower.
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, the
making of the Interest Advance as requested by this Notice of Borrowing shall
automatically reduce, subject to reinstatement in accordance with the terms
of
the Liquidity Agreement, the Maximum Available Commitment by an amount equal
to
the amount of the Interest Advance requested to be made hereby as set forth
in
clause (i) of paragraph (3) of this Notice of
Borrowing
and such reduction shall automatically result in corresponding reductions in
the
amounts available to be borrowed pursuant to a subsequent Advance.
IN
WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as
Subordination
Agent, as Borrower
By:___________________________________
Name:
Title:
SCHEDULE
I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert
copy of computations in accordance with Interest Advance Notice of
Borrowing]
Annex
II to
Revolving
Credit Agreement
EARLY
TERMINATION ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
"Borrower"),
hereby certifies to Landesbank Baden-Württemberg (the "Liquidity
Provider"),
with
reference to the Revolving Credit Agreement (2005-ERJ1) dated as of
September 22, 2005, between the Borrower and the Liquidity Provider (the
"Liquidity Agreement";
the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The
Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The
Borrower is delivering this Notice of Borrowing for the making of the Early
Termination Advance by the Liquidity Provider to be used for the funding of
the
Cash Collateral Account in accordance with Section 3.6(d) of the Intercreditor
Agreement, which Advance is requested to be made on __________, ____. The Early
Termination Advance should be transferred to [name of bank/wire instructions/ABA
number] in favor of account number [ __ ], reference [ __ ].
(3) The
amount of the Early Termination Advance requested hereby (i) is
$_______________.__, which equals the Maximum Available Commitment on the date
hereof and is to be applied in respect of the funding of the Cash Collateral
Account in accordance with Sections 3.6(d) and 3.6(f) of the Intercreditor
Agreement, (ii) does not include any amount with respect to the payment of
the
principal of, or premium on, the Certificates, (iii) was computed in accordance
with the provisions of the Certificates, the Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I), and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon
receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the
Borrower will deposit such amount in the Cash Collateral Account and apply
the
same in accordance with the terms of Sections 3.6(d) and 3.6(f) of the
Intercreditor Agreement, (b) no portion of such amount shall be applied by
the
Borrower for any other purpose and (c) no portion of such amount until so
applied shall be commingled with other funds held by the Borrower.
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A)
the
making of the Early Termination Advance as requested by this Notice of Borrowing
shall automatically and irrevocably terminate the obligation of the Liquidity
Provider to make further Advances under the Liquidity Agreement; and (B)
following the making by the Liquidity Provider of the Early Termination Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
IN
WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as
Subordination
Agent, as Borrower
By:___________________________________
Name:
Title:
SCHEDULE
I TO EARLY TERMINATION ADVANCE NOTICE OF BORROWING
[Insert
copy of computations in accordance with Early Termination Advance Notice of
Borrowing]
Annex
III to
Revolving
Credit Agreement
[RESERVED]
Annex
IV to
Revolving
Credit Agreement
DOWNGRADE
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
"Borrower"),
hereby certifies to Landesbank Baden-Württemberg (the "Liquidity
Provider"),
with
reference to the Revolving Credit Agreement (2005-ERJ1) dated as of
September 22, 2005, between the Borrower and the Liquidity Provider (the
"Liquidity
Agreement";
the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The
Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The
Borrower is delivering this Notice of Borrowing for the making of the Downgrade
Advance by the Liquidity Provider to be used for the funding of the Cash
Collateral Account in accordance with Section 3.6(c) of the Intercreditor
Agreement by reason of the occurrence of a Downgrade Event, which Advance is
requested to be made on __________, ____. The Downgrade Advance should be
transferred to [name of bank/wire instructions/ABA number] in favor of account
number [ __ ], reference [ __ ].
(3) The
amount of the Downgrade Advance requested hereby (i) is $_______________.__,
which equals the Maximum Available Commitment on the date hereof and is to
be
applied in respect of the funding of the Cash Collateral Account in accordance
with Sections 3.6(c) and 3.6(f) of the Intercreditor Agreement, (ii) does not
include any amount with respect to the payment of the principal of, or premium
on, the Certificates, (iii) was computed in accordance with the provisions
of
the Certificates, the Trust Agreement and the Intercreditor Agreement (a copy
of
which computation is attached hereto as Schedule I), and (iv) has not been
and
is not the subject of a prior or contemporaneous Notice of Borrowing under
the
Liquidity Agreement.
(4) Upon
receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the
Borrower will deposit such amount in the Cash Collateral Account and apply
the
same in accordance with the terms of Sections 3.6(c) and 3.6(f) of the
Intercreditor Agreement, (b) no portion of such amount shall be applied by
the
Borrower for any other purpose and (c) no portion of such amount until so
applied shall be commingled with other funds held by the Borrower.
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A)
the
making of the Downgrade Advance as requested by this Notice of Borrowing shall
automatically and irrevocably terminate the obligation of the Liquidity Provider
to make further Advances under the Liquidity Agreement; and (B) following the
making by the Liquidity Provider of the Downgrade Advance requested by this
Notice of Borrowing, the Borrower shall not be entitled to request any further
Advances under the Liquidity Agreement.
IN
WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as
Subordination
Agent, as Borrower
By:___________________________________
Name:
Title:
SCHEDULE
I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert
copy of computations in accordance with Downgrade Advance Notice of
Borrowing]
Annex
V to
Revolving
Credit Agreement
FINAL
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
"Borrower"),
hereby certifies to Landesbank Baden-Württemberg (the "Liquidity
Provider"),
with
reference to the Revolving Credit Agreement (2005-ERJ1) dated as of
September 22, 2005, between the Borrower and the Liquidity Provider (the
"Liquidity
Agreement";
the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The
Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The
Borrower is delivering this Notice of Borrowing for the making of the Final
Advance by the Liquidity Provider to be used for the funding of the Cash
Collateral Account in accordance with Section 3.6(i) of the Intercreditor
Agreement by reason of the receipt by the Borrower of a Termination Notice
from
the Liquidity Provider with respect to the Liquidity Agreement, which Advance
is
requested to be made on ____________, ____. The Final Advance should be
transferred to [name of bank/wire instructions/ABA number] in favor of account
number [ __ ], reference [ __ ].
(3) The
amount of the Final Advance requested hereby (i) is $_________________.__,
which
equals the Maximum Available Commitment on the date hereof and is to be applied
in respect of the funding of the Cash Collateral Account in accordance with
Sections 3.6(f) and 3.6(i) of the Intercreditor Agreement, (ii) does not include
any amount with respect to the payment of principal of, or premium on, the
Certificates, (iii) was computed in accordance with the provisions of the
Certificates, the Trust Agreement and the Intercreditor Agreement (a copy of
which computation is attached hereto as Schedule I), and (iv) has not been
and
is not the subject of a prior or contemporaneous Notice of
Borrowing.
(4) Upon
receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the
Borrower will deposit such amount in the Cash Collateral Account and apply
the
same in accordance with the terms of Sections 3.6(f) and 3.6(i) of the
Intercreditor Agreement, (b) no portion of such amount shall be applied by
the
Borrower for any other purpose and (c) no portion of such amount until so
applied shall be commingled with other funds held by the Borrower.
(5)
The
Borrower hereby requests that the Advance requested hereby be a Base Rate
Advance [and that such Base Rate Advance be converted into a LIBOR Advance
on
the third London/Stuttgart Business Day following your receipt of this
notice.]1
___________________
1
Bracketed language may be included at Borrower's option.
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A)
the
making of the Final Advance as requested by this Notice of Borrowing shall
automatically and irrevocably terminate the obligation of the Liquidity Provider
to make further Advances under the Liquidity Agreement; and (B) following the
making by the Liquidity Provider of the Final Advance requested by this Notice
of Borrowing, the Borrower shall not be entitled to request any further Advances
under the Liquidity Agreement.
IN
WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
WILMINGTON
TRUST COMPANY,
not
in its
individual capacity but solely as
Subordination
Agent, as Borrower
By___________________________________
Name:
Title:
SCHEDULE
I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert
copy of computations in accordance with Final Advance Notice of
Borrowing]
Annex
VI to
Revolving
Credit Agreement
NOTICE
OF
TERMINATION
[Date]
Wilmington
Trust Company,
as
Subordination Agent, as Borrower
[Rodney
Square North
1100
North Market Street
Wilmington,
DE 19890-0001
Attention:
Corporate Trust Administration]
Revolving
Credit Agreement dated as of September 22, 2005, between Wilmington Trust
Company, as Subordination Agent, as agent and trustee for the Continental
Airlines Pass Through Trust 2005-ERJ1, as Borrower, and Landesbank
Baden-Württemberg (the "Liquidity
Agreement")
Ladies
and Gentlemen:
You
are
hereby notified that, pursuant to Section 6.01 of the Liquidity Agreement,
by
reason of the occurrence of a Liquidity Event of Default and the existence
of a
Performing Note Deficiency (each as defined therein), we are giving this notice
to you in order to cause (i) our obligations to make Advances (as defined
therein) under such Liquidity Agreement to terminate on the fifth Business
Day
after the date on which you receive this notice and (ii) you to request a Final
Advance under the Liquidity Agreement pursuant to Section 3.6(i) of the
Intercreditor Agreement (as defined in the Liquidity Agreement) as a consequence
of your receipt of this notice.
THIS
NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR UNDER THE LIQUIDITY
AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY AGREEMENT WILL
TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU RECEIVE THIS
NOTICE.
Very
truly yours,
LANDESBANK
BADEN-WÜRTTEMBERG,
as
Liquidity Provider
By_________________________________
Name:
Title:
cc:
Wilmington Trust Company,
as
Trustee
Annex
VII to
Revolving
Credit Agreement
NOTICE
OF
REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving
Credit Agreement dated as of September 22, 2005, between Wilmington Trust
Company, as Subordination Agent, as agent and trustee for the Continental
Airlines Pass Through Trust, 2005-ERJ1, as Borrower, and Landesbank
Baden-Württemberg (the "Liquidity
Agreement")
Ladies
and Gentlemen:
For
value
received, the undersigned beneficiary hereby irrevocably transfers
to:
______________________________
[Name
of
Transferee]
______________________________
[Address
of Transferee]
all
rights and obligations of the undersigned as Borrower under the Liquidity
Agreement referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the first
paragraph of the Liquidity Agreement, pursuant to the terms of Section 8.1
of
the Intercreditor Agreement.
By
this
transfer, all rights of the undersigned as Borrower under the Liquidity
Agreement are transferred to the transferee and the transferee shall hereafter
have the sole rights and obligations as Borrower thereunder. The undersigned
shall pay any costs and expenses of such transfer, including, but not limited
to, transfer taxes or governmental charges.
We
ask
that this transfer be effective as of __________, ____.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as
Subordination
Agent, as Borrower
By___________________________________
Name:
Title:
Annex
VIII to
Revolving
Credit Agreement
SPECIAL
TERMINATION ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
"Borrower"),
hereby certifies to Landesbank Baden-Württemberg (the "Liquidity
Provider"),
with
reference to the Revolving Credit Agreement (2005-ERJ1) dated as of
September 22, 2005, between the Borrower and the Liquidity Provider (the
"Liquidity
Agreement";
the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The
Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The
Borrower is delivering this Notice of Borrowing for the making of the Special
Termination Advance by the Liquidity Provider to be used for the funding of
the
Cash Collateral Account in accordance with Section 3.6(k) of the Intercreditor
Agreement by reason of the receipt by the Borrower of a Special Termination
Notice from the Liquidity Provider with respect to the Liquidity Agreement,
which Advance is requested to be made on ____________, ____. The Special
Termination Advance should be transferred to [name of bank/wire instructions/ABA
number] in favor of account number [ __ ], reference [ __ ].
(3) The
amount of the Special Termination Advance requested hereby (i) is
$_________________.__, which equals the Maximum Available Commitment on the
date
hereof and is to be applied in respect of the funding of the Cash Collateral
Account in accordance with Sections 3.6(f) and 3.6(k) of the Intercreditor
Agreement, (ii) does not include any amount with respect to the payment of
principal of, or premium on, the Certificates, (iii) was computed in accordance
with the provisions of the Certificates, the Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I), and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon
receipt by or on behalf of the Borrower of the amount requested hereby, (a)
the
Borrower will deposit such amount in the Cash Collateral Account and apply
the
same in accordance with the terms of Sections 3.6(f) and 3.6(k) of the
Intercreditor Agreement, (b) no portion of such amount shall be applied by
the
Borrower for any other purpose and (c) no portion of such amount until so
applied shall be commingled with other funds held by the Borrower.
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A)
the
making of the Special Termination Advance as requested by this Notice of
Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement;
and
(B) following the making by the Liquidity Provider of the Special Termination
Advance requested by this Notice of Borrowing, the Borrower shall not be
entitled to request any further Advances under the Liquidity
Agreement.
IN
WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as
Subordination
Agent, as Borrower
By___________________________________
Name:
Title:
SCHEDULE
I TO SPECIAL TERMINATION ADVANCE NOTICE OF BORROWING
[Insert
copy of computations in accordance with Special Termination Advance Notice
of
Borrowing]
Annex
IX to
Revolving
Credit Agreement
NOTICE
OF
SPECIAL TERMINATION
[Date]
Wilmington
Trust Company,
as
Subordination Agent, as Borrower
[Rodney
Square North
1100
North Market Street
Wilmington,
DE 19890-0001
Attention:
Corporate Trust Administration]
Revolving
Credit Agreement dated as of September 22, 2005, between Wilmington Trust
Company, as Subordination Agent, as agent and trustee for the Continental
Airlines Pass Through Trust 2005-ERJ1, as Borrower, and Landesbank
Baden-Wü;rttemberg (the "Liquidity
Agreement")
Ladies
and Gentlemen:
You
are
hereby notified that, pursuant to Section 6.02 of the Liquidity Agreement,
by
reason of the aggregate Pool Balance of the Certificates exceeding the aggregate
outstanding principal amount of the Equipment Notes (other than any Equipment
Notes previously sold or with respect to which the collateral securing such
Equipment Notes has been disposed of) during the 18-month period prior to April
1, 2021, we are giving this notice to you in order to cause (i) our obligations
to make Advances under such Liquidity Agreement to terminate on the fifth
Business Day after the date on which you receive this notice and (ii) you to
request a Special Termination Advance under the Liquidity Agreement pursuant
to
Section 3.6(k) of the Intercreditor Agreement as a consequence of your receipt
of this notice.
Terms
used but not defined herein shall have the respective meanings ascribed thereto
in or pursuant to the Liquidity Agreement.
THIS
NOTICE IS THE "NOTICE OF SPECIAL TERMINATION" PROVIDED FOR UNDER THE LIQUIDITY
AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY AGREEMENT WILL
TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU RECEIVE THIS
NOTICE.
Very
truly yours,
LANDESBANK
BADEN-WÜRTTEMBERG,
as
Liquidity Provider
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
cc:
Wilmington Trust Company,
as
Trustee
IX-2
EXECUTION
VERSION
INTERCREDITOR
AGREEMENT
(2005-ERJ1)
Dated
as
of
September 22,
2005
AMONG
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity
but
solely as Trustee under the
Continental
Airlines Pass Through Trust 2005-ERJ1
LANDESBANK
BADEN-WÜRTTEMBERG
as
Liquidity Provider
AND
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity except
as
expressly set forth herein but
solely
as
Subordination Agent and trustee
Page
|
2
|
|
|
2
|
|
|
15
|
|
|
15
|
|
|
16
|
|
|
17
|
|
|
18
|
|
|
20
|
|
|
20
|
|
|
22
|
|
|
22
|
|
|
24
|
|
|
25
|
|
|
26
|
|
|
27
|
|
|
27
|
|
|
32
|
|
|
32
|
|
|
34
|
|
|
34
|
|
|
34
|
|
|
34
|
|
|
35
|
|
|
35
|
|
|
36
|
|
|
36
|
|
|
37
|
|
|
37
|
|
|
37
|
|
37
|
|
|
37
|
|
|
37
|
|
|
38
|
|
|
38
|
|
|
38
|
|
|
38
|
|
|
39
|
|
|
39
|
|
|
39
|
|
|
39
|
|
|
39
|
|
|
39
|
|
|
41
|
|
|
41
|
|
|
42
|
|
|
42
|
|
|
42
|
|
|
43
|
|
|
43
|
|
|
43
|
|
|
43
|
|
|
44
|
|
|
44
|
|
|
44
|
|
|
44
|
|
|
45
|
|
|
45
|
|
|
46
|
|
|
46
|
INTERCREDITOR
AGREEMENT (2005-ERJ1)
INTERCREDITOR
AGREEMENT (2005-ERJ1) dated as of September 22, 2005 (this "Agreement"),
among
WILMINGTON TRUST COMPANY, a Delaware corporation ("WTC"),
not
in its individual capacity but solely as Trustee of the Trust (as defined
below), LANDESBANK BADEN-WÜRTTEMBERG, a bank established in Germany as a public
law institution with legal capacity (Rechtfähige
Anstalt des
Öffentlichen Rechts)
("LBBW"),
as
Liquidity Provider, and WILMINGTON TRUST COMPANY, not in its individual capacity
except as expressly set forth herein, but solely as Subordination Agent and
trustee hereunder (in such capacity, together with any successor appointed
pursuant to Article VIII hereof, the "Subordination
Agent").
WHEREAS,
all capitalized terms used herein shall have the respective meanings referred
to
in Article I hereof;
WHEREAS,
pursuant to each Indenture, the related Owner Trustee proposes to issue on
a
non-recourse basis one series of Equipment Notes to finance the debt portion
of
the purchase price of the Aircraft referred to in such Indenture which will
be
leased to Continental pursuant to the related Lease;
WHEREAS,
pursuant to the Financing Agreements, the Trust will acquire the Equipment
Notes;
WHEREAS,
pursuant to the Trust Agreement, the Trust proposes to issue Certificates
bearing the interest rate and having the final distribution date described
in
the Trust Agreement on the terms and subject to the conditions set forth
therein;
WHEREAS,
pursuant to the Underwriting Agreement, the Underwriter proposes to purchase
Certificates issued by the Trust in the aggregate face amount set forth on
Schedule I thereto on the terms and subject to the conditions set forth
therein;
WHEREAS,
the Liquidity Provider proposes to enter into a Liquidity Facility with the
Subordination Agent, as agent for the Trustee, for the benefit of the
Certificateholders;
WHEREAS,
it is a condition precedent to the obligations of the Underwriter under the
Underwriting Agreement that the Subordination Agent, the Trustee and the
Liquidity Provider agree to the terms of subordination set forth in this
Agreement in respect of the Certificates, and the Subordination Agent, the
Trustee and the Liquidity Provider, by entering into this Agreement, hereby
acknowledge and agree to such terms of subordination and the other provisions
of
this Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, and
of
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
DEFINITIONS
SECTION
1.1 Definitions.
For all
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(1) the
terms
used herein that are defined in this Article have the meanings assigned to
them
in this Article, and include the plural as well as the singular;
(2) all
references in this Agreement to designated "Articles", "Sections" and other
subdivisions are to the designated Articles, Sections and other subdivisions
of
this Agreement;
(3) the
words
"herein", "hereof" and "hereunder" and other words of similar import refer
to
this Agreement as a whole and not to any particular Article, Section or other
subdivision; and
(4) the
term
"including" shall mean "including without limitation".
"Acceleration"
means,
with respect to the amounts payable in respect of the Equipment Notes issued
under any Indenture, such amounts becoming immediately due and payable by
declaration or otherwise. "Accelerate",
"Accelerated"
and
"Accelerating"
have
meanings correlative to the foregoing.
"Advance",
means
any Advances as defined in the Liquidity Facility.
"Affiliate"
means,
with respect to any Person, any other Person directly or indirectly controlling,
controlled by or under common control with such Person. For the purposes of
this
definition, "control" means the power, directly or indirectly, to direct or
cause the direction of the management and policies of such Person whether
through the ownership of voting securities or by contract or otherwise; and
the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agreement"
has the
meaning assigned to such term in the first paragraph of this
Agreement.
"Aircraft"
means,
with respect to each Indenture, the "Aircraft" referred to therein.
"Appraisal"
has the
meaning assigned to such term in Section 4.1(a)(iii).
"Appraisers"
means
Aviation Specialists Group, Inc., BACK Aviation Solutions and BK Associates,
Inc. or any other nationally recognized appraiser reasonably selected by the
Subordination Agent or the Controlling Party.
"Available
Amount"
means,
on any drawing date, subject to the proviso contained in the first sentence
of
Section 3.6(g) hereof, an amount equal to (a) the Stated Amount at such
time,
less
(b) the
aggregate amount of each Interest Drawing honored by the Liquidity Provider
under the Liquidity Facility on or prior to such date which has not been
reimbursed or reinstated as of such date; provided
that,
following a Downgrade Drawing, a Special Termination Drawing, an Early
Termination Drawing or a Final Drawing under the Liquidity Facility, the
Available Amount of the Liquidity Facility shall be zero.
"Basic
Agreement"
means
the Pass Through Trust Agreement dated as of September 25, 1997 between
Continental and WTC, not in its individual capacity, except as otherwise
expressly provided therein, but solely as trustee.
"Business
Day"
means
any day other than a Saturday or Sunday or a day on which commercial banks
are
required or authorized to close in Houston, Texas, New York, New York, or,
so
long as any Certificate is outstanding, the city and state in which the Trustee,
the Subordination Agent or any Loan Trustee maintains its Corporate Trust Office
or receives and disburses funds, and that, solely with respect to draws under
the Liquidity Facility, also is a "Business Day" as defined in the Liquidity
Facility.
"Cash
Collateral Account"
means
an Eligible Deposit Account in the name of the Subordination Agent maintained
at
an Eligible Institution, which shall be the Subordination Agent if it shall
so
qualify, into which all amounts drawn under the Liquidity Facility pursuant
to
Section 3.6(c), 3.6(d), 3.6(i), or 3.6(k) shall be deposited.
"Certificates"
means
the certificates issued by the Trust, substantially in the form of Exhibit
A to
the Trust Agreement, and authenticated by the Trustee, representing fractional
undivided interests in the Trust, and any certificates issued in exchange
therefor or replacement thereof pursuant to the terms of the Trust
Agreement.
"Certificateholder"
means,
at any time, any holder of one or more Certificates.
"Closing
Date"
means
September 22, 2005.
"Code"
means
the Internal Revenue Code of 1986, as amended from time to time, and the
Treasury Regulations promulgated thereunder.
"Collection
Account"
means
the Eligible Deposit Account established by the Subordination Agent pursuant
to
Section 2.2 which the Subordination Agent shall make deposits in and withdrawals
from in accordance with this Agreement.
"Continental"
means
Continental Airlines, Inc., a Delaware corporation, and its successors and
assigns.
"Continental
Bankruptcy Event"
means
the occurrence and continuation of any of the following:
(a) Continental
shall consent to the appointment of or the taking of possession by a receiver,
trustee or liquidator of itself or of a substantial part of its
property,
or Continental shall admit in writing its inability to pay its debts generally
as they come due, or does not pay its debts generally as they become due or
shall make a general assignment for the benefit of creditors, or Continental
shall file a voluntary petition in bankruptcy or a voluntary petition or an
answer seeking reorganization, liquidation or other relief in a case under
any
bankruptcy laws or other insolvency laws (as in effect at such time) or an
answer admitting the material allegations of a petition filed against
Continental in any such case, or Continental shall seek relief by voluntary
petition, answer or consent, under the provisions of any other bankruptcy or
other similar law providing for the reorganization or winding-up of corporations
(as in effect at such time) or Continental shall seek an agreement, composition,
extension or adjustment with its creditors under such laws, or Continental's
board of directors shall adopt a resolution authorizing corporate action in
furtherance of any of the foregoing; or
(b) an
order,
judgment or decree shall be entered by any court of competent jurisdiction
appointing, without the consent of Continental, a receiver, trustee or
liquidator of Continental or of any substantial part of its property, or any
substantial part of the property of Continental shall be sequestered, or
granting any other relief in respect of Continental as a debtor under any
bankruptcy laws or other insolvency laws (as in effect at such time), and any
such order, judgment or decree of appointment or sequestration shall remain
in
force undismissed, unstayed and unvacated for a period of 60 days after the
date
of entry thereof; or
(c) a
petition against Continental in a case under any bankruptcy laws or other
insolvency laws (as in effect at such time) is filed and not withdrawn or
dismissed within 60 days thereafter, or if, under the provisions of any law
providing for reorganization or winding-up of corporations which may apply
to
Continental, any court of competent jurisdiction assumes jurisdiction, custody
or control of Continental or of any substantial part of its property and such
jurisdiction, custody or control remains in force unrelinquished, unstayed
and
unterminated for a period of 60 days.
"Continental
Provisions"
has the
meaning specified in Section 9.1(a).
"Controlling
Party"
means
the Person entitled to act as such pursuant to the terms of Section
2.6.
"Corporate
Trust Office"
means,
with respect to the Trustee, the Subordination Agent or any Loan Trustee, the
office of such Person in the city at which, at any particular time, its
corporate trust business shall be principally administered.
"Current
Distribution Date"
means a
Distribution Date specified as a reference date for calculating the Expected
Distributions or the Triggering Event Distributions with respect to the
Certificates as of such Distribution Date.
"Delivery
Period Expiry Date"
means
the earlier of (a) May 31, 2006, or, if the
Equipment
Notes relating to all of the Aircraft (or Substitute Aircraft in lieu thereof)
have not been purchased by the Trustee on or prior to such date due to any
reason beyond the control of Continental and not occasioned by Continental's
fault or negligence, August 31, 2006 and (b) the date on which Equipment Notes
with respect to all Aircraft (or Substitute Aircraft in lieu thereof) have
been
purchased by the Trustee in accordance with the Note Purchase
Agreement.
"Deposit
Agreement"
shall
mean the Deposit Agreement dated as of the date hereof between the Escrow Agent
and the Depositary, as the same may be amended, modified or supplemented from
time to time in accordance with the terms thereof.
"Depositary"
means
Citibank, N.A.
"Deposits"
has the
meaning set forth in the Deposit Agreement.
"Designated
Representatives"
means
the Subordination Agent Representatives, the Trustee Representatives and the
LP
Representatives identified under Section 2.5.
"Distribution
Date"
means a
Regular Distribution Date or a Special Distribution Date.
"Dollars"
or
"$"
means
United States dollars.
"Downgrade
Drawing"
has the
meaning assigned to such term in Section 3.6(c).
"Downgrade
Event"
has the
meaning assigned to such term in the Liquidity Facility.
"Downgraded
Facility"
has the
meanin