REVOLVING CREDIT AGREEMENT

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

 

 

 

 

TABLE OF CONTENTS

Page

 

 

ANNEX I   Interest Advance Notice of Borrowing

ANNEX II   Early Termination Advance Notice of Borrowing

ANNEX III   [Reserved]

ANNEX IV   Downgrade Advance Notice of Borrowing

ANNEX V   Final Advance Notice of Borrowing

ANNEX VI   Notice of Termination

ANNEX VII   Notice of Replacement Subordination Agent

ANNEX VIII   Special Termination Advance Notice of Borrowing

ANNEX IX   Notice of Special Termination

 

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:

ARTICLE I

DEFINITIONS

Section 1.01 .   Certain Defined Terms .

(a)  As used in this Agreement and unless expressly indicated, or unless the context clearly requires otherwise, the following capitalized terms shall have the following respective meanings for all purposes of this Agreement:

" Additional Costs " has the meaning assigned to such term in Section 3.01.

" Advance " means an Interest Advance, a Final Advance, a 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.

" 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 25 ^th 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:

" 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,

" 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.

 

(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:

ARTICLE II

 

AMOUNT AND TERMS OF THE COMMITMENT

Section 2.01 .   The Advances . The Liquidity Provider hereby irrevocably agrees, on the terms and conditions hereinafter set forth, to make Advances to the Borrower from time to time on any Business Day during the period from the Effective Date until 1:00 p.m. (New York City time) on the Expiry Date (unless the obligations of the Liquidity Provider shall be earlier terminated in accordance with the terms of Section 2.04(b)) in an aggregate amount at any time outstanding not to exceed the Maximum Commitment.

Section 2.02 .   Making the Advances .

(a)  Interest Advances shall be made in one or more Borrowings by delivery to the Liquidity Provider of one or more written and completed Notices of Borrowing in substantially the form of 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.

 

 

(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:

(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.

ARTICLE III

OBLIGATIONS OF THE BORROWER

Section 3.01 .   Increased Costs .  The Borrower shall pay to the Liquidity Provider from time to time such amounts as may be necessary to compensate the Liquidity Provider for any increased costs incurred by the Liquidity Provider which are attributable to its making or maintaining any 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)