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):
April
10,
2007
CONTINENTAL
AIRLINES, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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1-10323
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74-2099724
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(State
or other jurisdiction of incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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1600
Smith Street, Dept. HQSEO, Houston, Texas
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77002
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(Address
of principal executive offices)
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(Zip
Code)
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(713)
324-2950
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(Registrant’s
telephone number, including area
code)
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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
April
10, 2007, Continental Airlines, Inc. (the “Company”), Wilmington Trust Company,
as Subordination Agent and pass through trustee under certain pass through
trusts newly formed by the Company (the “Trustee”), Wells Fargo Bank Northwest,
National Association, as Escrow Agent under the Escrow Agreements (as defined
below), and Wilmington Trust Company, as Paying Agent under the Escrow
Agreements, entered into the Note Purchase Agreement, dated as of April 10,
2007
(the “Note Purchase Agreement”). The Note Purchase Agreement provides for future
issuance by the Company of equipment notes (the “Equipment Notes”) in the
aggregate principal amount of $1,146,810,000 to finance the Company’s purchase
of 30 new Boeing aircraft (each, an “Aircraft” and, collectively, the
“Aircraft”) from among 39 Boeing aircraft scheduled for delivery from
January 2008 through March 2009. Pursuant to the Note Purchase Agreement, at
delivery of each Aircraft, the Trustee will purchase Equipment Notes issued
under a Trust Indenture and Mortgage (each, an “Indenture” and, collectively,
the “Indentures”) with respect to such Aircraft to be entered into by the
Company and Wilmington Trust Company, as Mortgagee.
Each
Indenture contemplates the issuance of Equipment Notes in three series: Series
A, bearing interest at the rate of 5.983% per annum, Series B, bearing interest
at the rate of 6.903% per annum, and Series C, bearing interest at the rate
of
7.339% per annum, in the aggregate principal amount (once all the Equipment
Notes have been issued) equal to $756,762,000, in the case of Series A,
$221,850,000 in the case of Series B, and $168,198,000, in the case of Series
C.
The Equipment Notes will be purchased by the Trustee, using the proceeds from
the sale of Pass Through Certificates, Series 2007-1A, Pass Through
Certificates, Series 2007-1B, and Pass Through Certificates, Series 2007-1C
(collectively, the “Certificates”, and each series of the Certificates, a
“Class”).
Pending
the purchase of the Equipment Notes, the proceeds from the sale of the
Certificates of each Class were placed in escrow by the Trustee pursuant to
an
Escrow and Paying Agent Agreement, dated as of April 10, 2007, among Wells
Fargo
Bank Northwest, National Association, Morgan Stanley & Co. Incorporated,
Credit Suisse Securities (USA) LLC, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Citigroup Global Markets Inc., UBS Securities LLC, Calyon
Securities (USA) Inc., J.P. Morgan Securities Inc. and the Trustee corresponding
to such Class (each, an “Escrow Agreement” and, collectively, the “Escrow
Agreements”). The escrowed funds were deposited with Credit Suisse, New York
Branch, under a Deposit Agreement corresponding to each Class of
Certificates.
The
interest on the Equipment Notes and the escrowed funds is payable semiannually
on each April 19 and October 19, beginning on October 19, 2007. The principal
payments on the Equipment Notes are scheduled on April 19 and October 19 in
certain years, beginning on April 19, 2010. The final payments will be due
on
April 19, 2022, in the case of the Series A and Series B Equipment Notes, and
April 19, 2014, in the case of the Series C Equipment Notes. Maturity of the
Equipment Notes may be accelerated upon the occurrence of certain Events of
Default, including failure by the Company (in some cases after notice or the
expiration of a grace period, or both) to make payments under the applicable
Indenture when due or to comply with certain covenants, as well as certain
bankruptcy events involving the Company. The Equipment
Notes
issued with respect to each Aircraft will be secured by a lien on such Aircraft
and will also be cross-collateralized by the other Aircraft financed pursuant
to
the Note Purchase Agreement.
The
Certificates were registered for offer and sale pursuant to the Securities
Act
of 1933, as amended (the “Securities Act”), under the Company’s automatic shelf
registration statement on Form S-3 (File No. 333-133187) (the “Registration
Statement”). For a more detailed description of the agreements and instruments
entered into by the Company with respect to the Certificates, see the disclosure
under the captions “Description of the Certificates”, “Description of the
Deposit Agreements”, “Description of the Escrow Agreements”, “Description of the
Liquidity Facilities for the Class A and B Certificates”, “Description of the
Intercreditor Agreement”, “Description of the Equipment Notes” and
“Underwriting” contained in the Company’s final Prospectus Supplement, dated
March 27, 2007 (the “Prospectus Supplement”), to the Prospectus, dated April 10,
2006, filed with the Securities and Exchange Commission on March 29, 2007
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
2.03. Creation of Direct Financial Obligation.
See
Item
1.01.
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 March 27, 2007, to the Prospectus, dated
April 10, 2006, 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.
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CONTINENTAL
AIRLINES, INC.
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| April 13, 2007 | By | /s/ Jennifer L. Vogel |
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Jennifer L. Vogel |
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Senior
Vice President, General Counsel,
Secretary and Chief Compliance Officer |
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EXHIBIT
INDEX
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1.1
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Underwriting
Agreement, dated March 27, 2007, between Morgan Stanley & Co.
Incorporated, Credit Suisse Securities (USA) LLC, Merrill Lynch,
Pierce,
Fenner & Smith Incorporated, Citigroup Global Markets Inc., UBS
Securities LLC, Calyon Securities (USA) Inc., J.P. Morgan Securities
Inc.,
as Underwriters, Credit Suisse, New York Branch, as Depositary,
and
Continental Airlines, Inc. (filed as Exhibit 1.1 to the Company’s Current
Report on Form 8-K dated March 27, 2007 (filed with the SEC on March
30, 2007) and incorporated herein by
reference)
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4.1
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Trust
Supplement No. 2007-1A-O, dated as of April 10, 2007, between Wilmington
Trust Company, as Trustee, and Continental Airlines, Inc. to Pass
Through
Trust Agreement, dated as of September 25,
1997
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4.2
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Trust
Supplement No. 2007-1A-S, dated as of April 10, 2007, between Wilmington
Trust Company, as Trustee, and Continental Airlines, Inc. to Pass
Through
Trust Agreement, dated as of September 25,
1997
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4.3
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Trust
Supplement No. 2007-1B-O, dated as of April 10, 2007, between Wilmington
Trust Company, as Trustee, and Continental Airlines, Inc. to Pass
Through
Trust Agreement, dated as of September 25,
1997
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4.4
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Trust
Supplement No. 2007-1B-S, dated as of April 10, 2007, between Wilmington
Trust Company, as Trustee, and Continental Airlines, Inc. to Pass
Through
Trust Agreement, dated as of September 25,
1997
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4.5
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Trust
Supplement No. 2007-1C-O, dated as of April 10, 2007, between Wilmington
Trust Company, as Trustee, and Continental Airlines, Inc. to Pass
Through
Trust Agreement, dated as of September 25,
1997
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4.6
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Trust
Supplement No. 2007-1C-S, dated as of April 10, 2007, between Wilmington
Trust Company, as Trustee, and Continental Airlines, Inc. to Pass
Through
Trust Agreement, dated as of September 25,
1997
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4.7
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Revolving
Credit Agreement (2007-1A), dated as of April 10, 2007, between
Wilmington
Trust Company, as Subordination Agent, as Borrower, and RZB Finance
LLC,
as Liquidity Provider
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4.8
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Revolving
Credit Agreement (2007-1B), dated as of April 10, 2007, between
Wilmington
Trust Company, as Subordination Agent, as Borrower, and RZB Finance
LLC,
as Liquidity Provider
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4.9
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Master
Guaranty Agreement, dated as of September 1, 1997, issued by Raiffeisen
Zentralbank Österreich
Aktiengesellschaft
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4.10
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Master
Guaranty Certificate No. G736.759, dated as of April 10, 2007,
issued by
Raiffeisen Zentralbank Österreich
Aktiengesellschaft
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4.11
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Intercreditor
Agreement, dated as of April 10 2007, among Wilmington Trust Company,
as
Trustee, RZB Finance LLC, as Liquidity Provider, and Wilmington
Trust
Company, as Subordination Agent and
Trustee
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4.12
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Deposit
Agreement (Class A), dated as of April 10, 2007, between Wells
Fargo Bank
Northwest, National Association, as Escrow Agent, and Credit Suisse,
New
York Branch, as Depositary
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4.13
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Deposit
Agreement (Class B), dated as of April 10, 2007, between Wells
Fargo Bank
Northwest, National Association, as Escrow Agent, and Credit Suisse,
New
York Branch, as Depositary
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4.14
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Deposit
Agreement (Class C), dated as of April 10, 2007, between Wells
Fargo Bank
Northwest, National Association, as Escrow Agent, and Credit Suisse,
New
York Branch, as Depositary
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4.15
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Escrow
and Paying Agent Agreement (Class A), dated as of April 10, 2007
among
Wells Fargo Bank Northwest, National Association, as Escrow Agent,
Morgan
Stanley & Co. Incorporated, Credit Suisse Securities (USA) LLC,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global
Markets Inc., UBS Securities LLC, Calyon Securities (USA) Inc.
and J.P.
Morgan Securities Inc., as Underwriters, Wilmington Trust Company,
as
Trustee, and Wilmington Trust Company, as Paying
Agent
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4.16
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Escrow
and Paying Agent Agreement (Class B), dated as of April 10, 2007
among
Wells Fargo Bank Northwest, National Association, as Escrow Agent,
Morgan
Stanley & Co. Incorporated, Credit Suisse Securities (USA) LLC,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global
Markets Inc., UBS Securities LLC, Calyon Securities (USA) Inc.
and J.P.
Morgan Securities Inc., as Underwriters, Wilmington Trust Company,
as
Trustee, and Wilmington Trust Company, as Paying
Agent
|
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4.17
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Escrow
and Paying Agent Agreement (Class C), dated as of April 10, 2007
among
Wells Fargo Bank Northwest, National Association, as Escrow Agent,
Morgan
Stanley & Co. Incorporated, Credit Suisse Securities (USA) LLC,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global
Markets Inc., UBS Securities LLC, Calyon Securities (USA) Inc.
and J.P.
Morgan Securities Inc., as Underwriters, Wilmington Trust Company,
as
Trustee, and Wilmington Trust Company, as Paying
Agent
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4.18
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Note
Purchase Agreement, dated as of April 10, 2007, among Continental
Airlines, Inc., Wilmington Trust Company, as Trustee, Wilmington
Trust
Company, as Subordination Agent, Wells Fargo Bank Northwest, National
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Association,
as Escrow Agent, and Wilmington Trust Company, as Paying Agent
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4.19
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Form
of Participation Agreement (Participation Agreement between Continental
Airlines, Inc. and Wilmington Trust Company, as Mortgagee, Subordination
Agent and Trustee) (Exhibit B to Note Purchase Agreement)
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4.20
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Form
of Indenture (Trust Indenture and Mortgage between Continental
Airlines,
Inc. and Wilmington Trust Company, as Mortgagee) (Exhibit C to
Note
Purchase Agreement)
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4.21
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Form
of Continental Airlines Pass Through Certificate, Series 2007-1A-O
(included in Exhibit 4.1)
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4.22
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Form
of Continental Airlines Pass Through Certificate, Series 2007-1B-O
(included in Exhibit 4.3)
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4.23
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Form
of Continental Airlines Pass Through Certificate, Series 2007-1C-O
(included in Exhibit 4.5)
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23.1
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Consent
of Aircraft Information Services, Inc., dated March 23,
2007
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23.2
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Consent
of BK Associates, Inc., dated March 23,
2007
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23.3
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Consent
of Morten Beyer and Agnew, Inc., March 23,
2007
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TRUST
SUPPLEMENT No. 2007-1A-O
Dated
as
of April 10, 2007
between
WILMINGTON
TRUST COMPANY
as
Trustee,
and
CONTINENTAL
AIRLINES, INC.
to
PASS
THROUGH TRUST AGREEMENT
Dated
as
of September 25, 1997
$756,762,000
Continental
Airlines Pass Through Trust 2007-1A-O
5.983%
Continental Airlines
Pass
Through Certificates,
Series
2007-1A-O
Page
Exhibit
A - Form
of Certificate
Exhibit
B - DTC
Letter of Representations
Exhibit
C - Form
of Assignment and Assumption
Agreement
This
Trust Supplement No. 2007-1A-O, dated as of April 10, 2007 (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
;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 has obtained commitments from Boeing for the delivery of certain
Aircraft;
WHEREAS,
the Company intends to finance the acquisition of each such Aircraft through
separate secured loan transactions, under which the Company will own such
Aircraft (collectively, the "Owned
Aircraft");
WHEREAS,
in the case of each Owned Aircraft, the Company will issue pursuant to an
Indenture, on a recourse basis, Equipment Notes to finance a portion of the
purchase price of such Owned Aircraft;
WHEREAS,
the Trustee hereby declares the creation of the Continental Airlines Pass
Through Trust 2007-1A-O (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 Underwriters have contemporaneously herewith entered
into an Escrow Agreement with the Escrow Paying Agent pursuant to which the
Underwriters have delivered to the Escrow Agent the proceeds from the sale
of
the Applicable Certificates, 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 delivered by
Boeing under the Aircraft Purchase Agreement 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;
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, 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;
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 "Continental Airlines Pass Through Certificates,
Series 2007-1A-O" (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 under Sections 3.03, 3.04, 3.05 and 3.06 of the
Basic Agreement) is $756,762,000.
(b) The
Regular Distribution Dates with respect to any payment of Scheduled Payments
means April 19 and October 19 of each year, commencing on October 19, 2007,
until payment of all of the Scheduled Payments to be made under the Equipment
Notes has been made.
(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 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 or hold 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.
(k) The
"particular sections of the Note Purchase Agreement", for purposes of clause
(3)
of Section 7.07 of the Basic Agreement, are Section 8.1 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 New Aircraft 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,
owned by the Company and securing one or more Equipment Notes).
Aircraft
Purchase Agreement:
Has the
meaning specified 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
Delivery 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.
Assignment
and Assumption Agreement:
Means
the assignment and assumption agreement substantially in the form of Exhibit
C
hereto executed and delivered in accordance with Section 7.01 of this Trust
Supplement.
Basic
Agreement:
Has the
meaning specified in the first paragraph of this Trust
Supplement.
Boeing:
Means
The Boeing Company.
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 Applicable 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.
Certificate:
Has the
meaning specified in the Intercreditor Agreement.
Certificate
Buyout Event:
Means
that a Continental Bankruptcy Event has occurred and is continuing and the
following events have occurred: (A) (i) the 60-day period specified in Section
1110(a)(2)(A) of the U.S. Bankruptcy Code (the “60-Day Period”) has expired and
(ii) Continental has not entered into one or more agreements under Section
1110(a)(2)(A) of the U.S. Bankruptcy Code to perform all of its obligations
under all of the Indentures or, if it has entered into such agreements, has
at
any time thereafter failed to cure any default under any of the Indentures
in
accordance with Section 1110(a)(2)(B) of the Bankruptcy Code; or (B) if prior
to
the expiry of the 60-Day Period, Continental shall have abandoned any
Aircraft.
Class:
Has the
meaning specified in the Intercreditor Agreement.
Company:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Continental
Bankruptcy Event:
Has the
meaning specified in the Intercreditor Agreement.
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) June 30, 2009, or, if the Equipment Notes relating to
all of the New Aircraft (or Substitute Aircraft in lieu thereof) have not been
purchased by the Applicable Trust and the Other Trusts 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, September 30, 2009 (provided
that, if
a labor strike occurs at Boeing on or prior to either or both of such dates
referred to in this clause (a), such date or dates on or following the
commencement of such strike shall be extended by adding thereto the number
of
days that such strike continued in effect), and (b) the date on which Equipment
Notes issued with respect to all of the New Aircraft (or Substitute Aircraft
in
lieu thereof) have been purchased by the Applicable Trust and the Other Trusts
in accordance with the NPA.
Deposit
Agreement:
Means
the Deposit Agreement dated as of April 10, 2007 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
Credit Suisse, a banking institution organized under the laws of Switzerland,
acting through its New York branch.
Deposits:
Has the
meaning specified in the Deposit Agreement.
Distribution
Date:
Means
any Regular Distribution Date or Special Distribution Date as the context
requires.
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 April 10, 2007 relating
to the
Applicable Certificates, among the Escrow Agent, the Escrow Paying Agent,
the
Trustee and Underwriters, 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.
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
19, 2023.
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 dated as of April 10, 2007 among the Trustee, the
Other Trustees, the Liquidity Provider, the liquidity provider
relating
to the Class B Certificates 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 Underwriters, together with all subsequent beneficial owners of the
Applicable Certificates.
Liquidity
Facility:
Means,
initially, the Revolving Credit Agreement dated as of April 10, 2007 relating
to
the Applicable Certificates, between the Liquidity Provider 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, in each
case as amended, supplemented or otherwise modified from time to time in
accordance with their respective terms.
Liquidity
Provider:
Means,
initially, RZB Finance LLC, a limited liability company duly established under
the laws of Delaware, and any replacements or successors therefor appointed
in
accordance with the Intercreditor Agreement.
New
Aircraft:
Has the
meaning specified in the NPA.
Note
Documents:
Means
the Equipment Notes with respect to the Applicable Certificates and, with
respect to any such Equipment Note, the Indenture and the Participation
Agreement relating to such Equipment Note.
Notice
of Purchase Withdrawal:
Has the
meaning specified in the Deposit Agreement.
NPA:
Means
the Note Purchase Agreement dated as of April 10, 2007 among the Trustee, the
Other Trustees, 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.
Other
Agreements:
Means
(i) the Basic Agreement as supplemented by Trust Supplement
No. 2007-1B-O dated as of the date hereof relating to Continental Airlines
Pass Through Trust 2007-1B-O, (ii) the Basic Agreement as supplemented by
Trust Supplement No. 2007-1C-O dated as of the date hereof relating to
Continental Airlines Pass Through Trust 2007-1C-O, (iii) the Basic Agreement
as
supplemented by a Trust Supplement relating to any Additional Trust and (iv)
the
Basic Agreement as supplemented by a Trust Supplement relating to any
Refinancing Trust.
Other
Trustees:
Means
the trustees under the Other Agreements, and any successor or other trustee
appointed as provided therein.
Other
Trusts:
Means
the Continental Airlines Pass Through Trust 2007-1B-O, the Continental Airlines
Pass Through Trust 2007-1C-O, an Additional Trust or Trusts, if any, and a
Refinancing Trust or Trusts, if any, created by the Other
Agreements.
Owned
Aircraft:
Has the
meaning specified in the third recital to this Trust Supplement.
Participation
Agreement:
Means
each Participation Agreement to be entered into, or entered into (as the case
may be), by the Trustee pursuant to the NPA, as the same may be amended,
supplemented or otherwise modified 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 as of such
date
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
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
payment with respect to other Trust Property and the distribution thereof to
be
made on that date.
Prospectus
Supplement:
Means
the final Prospectus Supplement dated March 27, 2007 relating to the offering
of
the Applicable Certificates, the Class B and the Class C
Certificates.
Ratings
Confirmation:
Has the
meaning specified in the Intercreditor Agreement.
Related
Pass Through Trust Agreement:
Means
the Basic Agreement as supplemented by the Trust Supplement No. 2007-1A-S dated
as of the date hereof relating to the Continental Airlines Pass Through Trust
2007-1A-S and entered into by the Company and the Related Trustee, which
agreement becomes effective upon the execution and delivery of the Assignment
and Assumption Agreement pursuant to Section 7.01 of this Trust
Supplement.
Related
Trust:
Means
the Continental Pass Through Trust 2007-1A-S, to be formed under the Related
Pass Through Trust Agreement.
Related
Trustee:
Means
the trustee under the Related Pass Through Trust Agreement.
Scheduled
Delivery Date:
Has the
meaning specified in the NPA.
Scheduled
Payment:
Means,
with respect to any Equipment Note, (i) any payment of principal or interest
on
such Equipment Note (other than any such payment which is not in fact received
by the Trustee or any Subordination Agent within five days of the date on which
such payment is scheduled to be made) or (ii) any payment of interest on the
Applicable Certificates with funds drawn under the Liquidity Facility, which
payment in any such case represents the installment of principal on such
Equipment Note at the stated maturity of such installment, the payment of
regularly scheduled interest accrued on the unpaid principal amount of such
Equipment Note, or both; provided,
however,
that
any payment of principal, premium, if any, or interest resulting from the
redemption or purchase of any Equipment Note shall not constitute a Scheduled
Payment.
Special
Payment:
Means
any payment (other than a Scheduled Payment) in respect of, or any proceeds
of,
any Equipment Note or Collateral (as defined in each Indenture).
Substitute
Aircraft:
Has the
meaning specified in the NPA.
Transfer
Date:
Has the
meaning specified in Section 7.01 of this Trust Supplement.
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 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.
Trustee:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Underwriters:Means,
collectively, Morgan Stanley & Co. Incorporated, Credit Suisse Securities
(USA) LLC, Merrill
Lynch, Pierce, Fenner & Smith Incorporated,
Citigroup
Global Markets Inc., UBS Securities LLC, Calyon Securities (USA) Inc. and
J.P.Morgan Securities Inc.
Underwriting
Agreement:
Means
the Underwriting Agreement dated March 27, 2007 among the Underwriters, the
Company and the Depositary, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
CERTIFICATES;
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, including any portion thereof paid by the Liquidity
Provider;
(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;
(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 or its nominee, on the Record Date prior to each Distribution Date,
the
Trustee will request that such Clearing Agency post on its Internet bulletin
board 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 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 U.S. 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) If
the
aggregate principal payments scheduled for a Regular Distribution Date prior
to
the Delivery Period Termination Date differ from the amount thereof set forth
for the Applicable Certificates on page S-33 of the Prospectus Supplement,
by no
later than the 15th
day
prior to such Regular Distribution Date, the Trustee shall mail written notice
of the actual amount of such scheduled payments to the Applicable
Certificateholders of record as of a date within 15 Business Days prior to
the
date of mailing.
(d) 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
page S-33 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.
(e) The
Trustee shall provide promptly to the Applicable Certificateholders all material
non-confidential information received by the Trustee from the
Company.
(f)
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 7.01 of this Trust Supplement 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 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 7.01 of this Trust Supplement),
(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.
Section
3.04. Limitation
of Liability for Payments.
Section
3.09 of the Basic Agreement shall be amended, with respect to the Applicable
Trust, by deleting the phrase "the Owner Trustees or the Owner Participants"
in
the second sentence thereof and adding in lieu thereof "the Liquidity
Provider".
ARTICLE
IV
DEFAULT
Section
4.01. Purchase
Rights of Certificateholders.
(a) By
acceptance of its Applicable Certificate, each Applicable Certificateholder
agrees that at any time after the occurrence and during the continuation of
a
Certificate Buyout Event:
(i)
each
Class B Certificateholder (other than the Company or any of its Affiliates)
shall have the right to purchase all, but not less than all, of the Applicable
Certificates upon 15 days' written notice to the Trustee and each other Class
B
Certificateholder, on the third Business Day next following the expiry of such
15-day notice period, provided
that (A)
if prior to the end of such 15-day period any other Class B Certificateholder
(other than the Company or any of its Affiliates) notifies such purchasing
Class
B Certificateholder that such other Class B Certificateholder wants to
participate in such purchase, then such other Class B Certificateholder
(other than the Company or any of its Affiliates) may join with the purchasing
Class B Certificateholder to purchase all, but not less than all, of the
Applicable Certificates pro rata based on the Fractional Undivided Interest
in
the Class B Trust held by each such Class B Certificateholder and (B) if prior
to the end of such 15-day period any other Class B Certificateholder fails
to
notify the purchasing Class B Certificateholder of such other Class B
Certificateholder's desire to participate in such a purchase, then such other
Class B Certificateholder shall lose its right to purchase the Applicable
Certificates pursuant to this Section 4.01(a)(i);
(ii)
each
Class C Certificateholder (other than the Company or any of its Affiliates)
shall have the right (which shall not expire upon any purchase of the Applicable
Certificates pursuant to clause (i) above) to purchase all, but not less than
all, of the Applicable Certificates and the Class B Certificates upon 15 days'
written notice to the Trustee, the Class B Trustee and each other Class C
Certificateholder, on the third Business Day next following the expiry of such
15-day notice period, provided
that (A)
if prior to the end of such 15-day period any other Class C Certificateholder
(other than the Company or any of its Affiliates) notifies such purchasing
Class
C Certificateholder that such other Class C Certificateholder wants to
participate in such purchase, then such other Class C Certificateholder (other
than the Company or any of its Affiliates) may join with the purchasing Class
C
Certificateholder to purchase all, but not less than all, of the Applicable
Certificates and the Class B Certificates pro rata based on the Fractional
Undivided Interest in the Class C Trust held by each such Class C
Certificateholder and (B) if prior to the end of such 15-day period any other
Class C Certificateholder fails to notify the purchasing Class C
Certificateholder of such other Class C Certificateholder's desire to
participate in such a purchase, then such other Class C Certificateholder
shall lose its right to purchase the Applicable Certificates and the Class
B
Certificates pursuant to this Section 4.01(a)(ii);
(iii)
if
any Additional Certificates are issued pursuant to one or more Additional
Trusts, each Additional Certificateholder (other than the Company or any of
its
Affiliates), shall have the right (which shall not expire upon any purchase
of
the Applicable Certificates pursuant to clauses (i) or (ii) above) to purchase
all, but not less than all, of the Applicable Certificates, the Class B
Certificates, the Class C Certificates and any Additional Certificates ranked
senior to the Additional Certificates held by the purchasing Additional
Certificateholders upon 15 days' written notice to the Trustee, the Class B
Trustee, the Class C Trustee, any Additional Trustee with respect to Additional
Certificates that rank senior to the Additional Certificates held by the
purchasing Additional Certificateholders and each other Additional
Certificateholder of the same Class, on the third Business Day next following
the expiry of such 15-day notice period, provided
that (A)
if prior to the end of such 15-day period any other Additional Certificateholder
of such Class (other than the Company or any of its Affiliates) notifies such
purchasing Additional Certificateholder that such other Additional
Certificateholder wants to participate in such purchase, then such other
Additional Certificateholder (other than the Company or any of its Affiliates)
may join with the purchasing Additional Certificateholder to purchase all,
but
not less than all, of the Applicable Certificates, the Class B Certificates,
the
Class C Certificates and such senior Additional Certificates pro rata based
on
the Fractional Undivided Interest in the applicable Additional Trust held by
each such Additional Certificateholder and (B) if prior to the end of such
15-day period any other Additional Certificateholder of such Class fails to
notify the purchasing Additional Certificateholder of such other Additional
Certificateholder's desire to participate in such a purchase, then such other
Additional Certificateholder shall lose its right to purchase the Applicable
Certificates, the Class B Certificates, the Class C Certificates and such
senior Additional Certificates pursuant to this Section
4.01(a)(iii).
(iv)
if
any Refinancing Certificates are issued, each Refinancing Certificateholder
shall have the same right (subject to the same terms and conditions) to purchase
Certificates pursuant to this Section 4.01(a) (and to receive notice in
connection therewith) as the Certificateholders of the Class that such
Refinancing Certificates refinanced.
The
purchase price with respect to the Applicable Certificates shall be equal to
the
Pool Balance of the Applicable Certificates, together with accrued and unpaid
interest thereon to the date of such purchase, without premium, but including
any other amounts then due and payable to the Applicable Certificateholders
under the Agreement, the Intercreditor Agreement, the Escrow Agreement or any
Note Document or on or in respect of the Applicable Certificates; provided,
however,
that no
such purchase of Applicable Certificates shall be effective unless the
purchaser(s) shall certify to the Trustee that contemporaneously with such
purchase, such purchaser(s) is (are) purchasing, pursuant to the terms of the
Agreement and the Other Agreements, (A) in the case of any purchase of the
Applicable Certificates pursuant to clause (i) above, all of the Applicable
Certificates, (B) in the case of any purchase of the Applicable
Certificates pursuant to clause (ii) above, all of the Applicable Certificates
and the Class B Certificates, or (C) in all other cases, the
Applicable Certificates, the Class B Certificates, the Class C Certificates
and,
if applicable, the Additional Certificates that are senior to the securities
held by such purchaser(s). Each payment of the purchase price of the Applicable
Certificates referred to in the first sentence hereof shall be made to an
account or accounts designated by the Trustee and each such purchase shall
be
subject to the terms of this Section 4.01. Each Applicable Certificateholder
agrees by its acceptance of its Applicable Certificate that (at any time after
the occurrence of a Certificate Buyout Event) it will, upon payment from such
Class B Certificateholder(s), Class C Certificateholder(s), Additional
Certificateholder(s) or Refinancing Certificateholders, as the case may be,
of
the purchase price set forth in the first sentence of this paragraph,
(i) forthwith sell, assign, transfer and convey to the purchaser(s) thereof
(without recourse, representation or warranty of any kind except for its own
acts), all of the right, title, interest and obligation of such Applicable
Certificateholder in the Agreement, the Escrow Agreement, the Deposit Agreement,
the Intercreditor Agreement, the Liquidity Facility, the NPA, the Note Documents
and all Applicable Certificates and Escrow Receipts held by such Applicable
Certificateholder (excluding all right, title and interest under any of the
foregoing to the extent such right, title or interest is with respect to an
obligation not then due and payable as respects any action or inaction or state
of affairs occurring prior to such sale) (and the purchaser shall assume all
of
such Applicable Certificateholder's obligations under the Agreement, the Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity
Facility, the NPA, the Note Documents and all such Applicable Certificates
and
Escrow Receipts), (ii) if such purchase occurs after a record date
specified in Section 2.03 of the Escrow Agreement relating to the
distribution of unused Deposits and/or accrued and unpaid interest on Deposits
and prior to or on the related distribution date thereunder, forthwith turn
over
to the purchaser(s) of its Applicable Certificate all amounts, if any, received
by it on account of such distribution, and (iii) if such purchase occurs
after a Record Date relating to any distribution and prior to or on the related
Distribution Date, forthwith turn over to the purchaser(s) of its Applicable
Certificate all amounts, if any, received by it on account of such distribution.
The Applicable Certificates will be deemed to be purchased on the date payment
of the purchase price is made notwithstanding the failure of the Applicable
Certificateholders to deliver any Applicable
Certificates
and, upon such a purchase, (I) the only rights of the Applicable
Certificateholders will be to deliver the Applicable Certificates to the
purchaser(s) and receive the purchase price for such Applicable Certificates
and
(II) if the purchaser(s) shall so request, such Applicable Certificateholder
will comply with all the provisions of Section 3.04 of the Basic Agreement
to
enable new Applicable Certificates to be issued to the purchaser in such
denominations as it shall request. All charges and expenses in connection with
the issuance of any such new Applicable Certificates shall be borne by the
purchaser thereof.
As
used
in this Section 4.01 and elsewhere in this Trust Supplement, the terms
"Additional Certificate", "Additional Certificateholder", "Additional Equipment
Notes", "Additional Trust", "Additional Trust Agreement", "Additional Trustee",
"Class B Certificate", "Class B Certificateholder", "Class B Trust", "Class
B
Trust Agreement", "Class B Trustee", "Class C Certificate", "Class C
Certificateholder", "Class C Trust", "Class C Trust Agreement", "Class C
Trustee", "Refinancing Certificates", "Refinancing Certificateholder",
"Refinancing Equipment Notes" and "Refinancing Trust" shall have the respective
meanings assigned to such terms in the Intercreditor Agreement.
(b) This
Section 4.01 supersedes and replaces Section 6.01(b) of the Basic Agreement,
with respect to the Applicable Trust.
Section
4.02. 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 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) 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
Delivery Date as to which such Delivery Notice relates (the "Applicable
Delivery 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 Delivery 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 Company, all as shall be described
in the Delivery Notice. 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 Delivery 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 Delivery 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 Delivery Date in accordance with the terms
of the Deposit Agreement and the Escrow Agreement. 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 Delivery
Date to the purchase price of the Equipment Notes, shall be re-deposited by
the
Trustee with the Depositary on the Applicable Delivery 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.
(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 promptly 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 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.
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, (i) 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", (ii) enter into one or more agreements
supplemental to the Agreement, the Intercreditor
Agreement
or the NPA to provide for the formation of one or more Additional Trusts, the
issuance of Additional Certificates, the purchase by any Additional Trust of
applicable Additional Equipment Notes and other matters incidental thereto
or
otherwise contemplated by Section 2.01(b) of the Basic Agreement, subject to
the
provisions of Section 4(a)(vi) of the NPA and Section 9.1 of the Intercreditor
Agreement, and (iii) enter into one or more agreements supplemental to the
Agreement to provide for the formation of one or more Refinancing Trusts, the
issuance of Refinancing Certificates, the purchase by any Refinancing Trust
of
applicable Refinancing Equipment Notes and other matters incidental thereto
or
as otherwise contemplated by Section 2.01(b) of the Basic Agreement, subject
to
the provisions of Section 4(a)(vi) of the NPA and Section 9.1(c) of the
Intercreditor 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, the Liquidity
Facility or the NPA or modifying in any manner the rights and obligations of
the
Applicable Certificateholders under the Escrow Agreement, the Deposit Agreement,
the Liquidity Facility 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.
Section
6.04. Consent
of Holders of Certificates Issued under Other Trusts.
Notwithstanding any provision in Section 6.02 or Section 6.03 of this Trust
Supplement to the contrary, no amendment or modification of Section 4.01 of
this
Trust Supplement shall be effective unless the trustee for each Class of
Certificates affected by such amendment or modification shall have consented
thereto.
ARTICLE
VII
TERMINATION
OF TRUST
Section
7.01. Termination
of the Applicable Trust.
(a) The respective obligations and responsibilities of the Company
and the Trustee with respect to the Applicable Trust shall terminate upon the
earlier of (A) the completion of the assignment, transfer and discharge
described in the first sentence of the immediately following paragraph and
(B) distribution to all Applicable Certificateholders and the Trustee 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; provided,
however,
that in
no event shall the Applicable Trust continue beyond one hundred ten (110) years
following the date of the execution of this Trust Supplement.
Upon
the
earlier of (i) the first Business Day following June 30, 2009 or, if later,
the
fifth Business Day following the Delivery Period Termination Date and (ii)
the
fifth Business Day following the date on which a Triggering Event occurs (such
date, the "Transfer
Date"),
or,
if later, the date on which all of the conditions set forth in the immediately
following sentence have been satisfied, the Trustee is hereby directed (subject
only to the immediately following
sentence)
to, and the Company shall direct the institution that will serve as the Related
Trustee under the Related Pass Through Trust Agreement to, execute and deliver
the Assignment and Assumption Agreement, pursuant to which the Trustee shall
assign, transfer and deliver all of the Trustee's right, title and interest
to
the Trust Property to the Related Trustee under the Related Pass Through Trust
Agreement. The Trustee and the Related Trustee shall execute and deliver the
Assignment and Assumption Agreement upon the satisfaction of the following
conditions:
(i) The
Trustee, the Related Trustee and each of the Rating Agencies then rating the
Applicable Certificates shall have received an Officer's Certificate and an
Opinion of Counsel dated the date of the Assignment and Assumption Agreement
and
each satisfying the requirements of Section 1.02 of the Basic Agreement, which
Opinion of Counsel shall be substantially to the effect set forth below and
may
be relied upon by the Beneficiaries (as defined in the Assignment and Assumption
Agreement):
(I) Upon
the
execution and delivery thereof by the parties thereto in accordance with the
terms of the Agreement and the Related Pass Through Trust Agreement, the
Assignment and Assumption Agreement will constitute the valid and binding
obligation of each of the parties thereto enforceable against each such party
in
accordance with its terms;
(II) Upon
the
execution and delivery of the Assignment and Assumption Agreement in accordance
with the terms of the Agreement and the Related Pass Through Trust Agreement,
each of the Applicable Certificates then Outstanding will be entitled to the
benefits of the Related Pass Through Trust Agreement;
(III) The
Related Trust is not required to be registered as an investment company under
the Investment Company Act of 1940, as amended;
(IV) The
Related Pass Through Trust Agreement constitutes the valid and binding
obligation of the Company enforceable against the Company in accordance with
its
terms; and
(V) Neither
the execution and delivery of the Assignment and Assumption Agreement in
accordance with the terms of the Agreement and the Related Pass Through Trust
Agreement, nor the consummation by the parties thereto of the transactions
contemplated to be consummated thereunder on the date thereof, will violate
any
law or governmental rule or regulation of the State of New York or the United
States of America known to such counsel to be applicable to the transactions
contemplated by the Assignment and Assumption Agreement.
(ii) The
Trustee and the Company shall have received (x) a copy of the articles of
incorporation and bylaws of the Related Trustee certified as of the Transfer
Date by the Secretary or Assistant Secretary of such institution and (y) a
copy
of the filing (including all attachments thereto) made by the institution
serving as the Related Trustee with the Office of the Superintendent, State
of
New York Banking Department
for
the
qualification of the Related Trustee under Section 131(3) of the New York
Banking Law.
Upon
the
execution of the Assignment and Assumption Agreement by the parties thereto,
the
Applicable Trust shall be terminated, the Applicable Certificateholders shall
receive beneficial interests in the Related Trust in exchange for their
interests in the Applicable Trust equal to their respective beneficial interests
in the Applicable Trust, and the Outstanding Applicable Certificates
representing Fractional Undivided Interests in the Applicable Trust shall be
deemed for all purposes of the Agreement and the Related Pass Through Trust
Agreement, without further signature or action of any party or Applicable
Certificateholder, to be certificates representing the same fractional undivided
interests in the Related Trust and its trust property. By acceptance of its
Applicable Certificate, each Applicable Certificateholder consents to such
assignment, transfer and delivery of the Trust Property to the trustee of the
Related Trust upon the execution and delivery of the Assignment and Assumption
Agreement.
In
connection with the occurrence of the event set forth in clause (B) above,
notice of such termination, specifying the Distribution Date upon which the
Applicable Certificateholders may surrender their Applicable Certificates to
the
Trustee for payment of the final distribution and cancellation, shall be mailed
promptly by the Trustee to Applicable Certificateholders not earlier than the
60th
day and
not later than the 15th
day next
preceding such final Distribution Date specifying (A) the Distribution Date
upon
which the proposed final payment of the Applicable Certificates will be made
upon presentation and surrender of Applicable Certificates at the office or
agency of the Trustee therein specified, (B) the amount of any such proposed
final payment, and (C) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Applicable Certificates at the office or agency of the
Trustee therein specified. The Trustee shall give such notice to the Registrar
at the time such notice is given to Applicable Certificateholders. Upon
presentation and surrender of the Applicable Certificates in accordance with
such notice, the Trustee shall cause to be distributed to Applicable
Certificateholders such final payments.
In
the
event that all of the Applicable Certificateholders shall not surrender their
Applicable Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Trustee shall give a second
written notice to the remaining Applicable Certificateholders to surrender
their
Applicable Certificates for cancellation and receive the final distribution
with
respect thereto. No additional interest shall accrue on the Applicable
Certificates after the Distribution Date specified in the first written notice.
In the event that any money held by the Trustee for the payment of distributions
on the Applicable Certificates shall remain unclaimed for two years (or such
lesser time as the Trustee shall be satisfied, after sixty days' notice from
the
Company, is one month prior to the escheat period provided under applicable
law)
after the final distribution date with respect thereto, the Trustee shall pay
to
each Loan Trustee the appropriate amount of money relating to such Loan Trustee
and shall give written notice thereof to the Company.
(b)
The
provisions of this Section 7.01 supersede and replace the provisions of Section
11.01 of the Basic Agreement in its entirety, with respect to the Applicable
Trust.
ARTICLE
VIII
MISCELLANEOUS
PROVISIONS
Section 8.01.
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.
Section
8.02. GOVERNING
LAW.
THE AGREEMENT AND, UNTIL THE TRANSFER DATE, THE APPLICABLE CERTIFICATES SHALL
BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
THIS SECTION 8.02 SUPERSEDES AND REPLACES SECTION 12.05 OF THE BASIC
AGREEMENT,
WITH RESPECT TO THE APPLICABLE TRUST.
Section
8.03. 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
8.04. 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.
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.
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| |
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| By: | ||
|
Name:
Title:
|
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WILMINGTON
TRUST COMPANY,
as Trustee |
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| |
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| By: | ||
|
Name:
Title:
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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 2007-1A-O
Continental
Airlines Pass Through Certificate, Series 2007-1A-O
Issuance
Date: April 10, 2007
Final
Maturity Date: October 19, 2023
Evidencing
A Fractional Undivided Interest In The Continental Airlines Pass Through Trust
2007-1A-O, The Property Of Which Shall Include Certain Equipment Notes Each
Secured By An Aircraft Owned By Continental Airlines, Inc.
$[_____________]
Fractional Undivided Interest
representing
0.0001321419% 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
2007-1A-O (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.
supplemented
by Trust Supplement No. 2007-1A-O thereto, dated as of April 10, 2007 (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 "Continental Airlines Pass Through Certificates, Series 2007-1A-O"
(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 owned by 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 April 19 and October 19 of each year (a "Regular
Distribution Date")
commencing October 19, 2007, 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 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.
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.
Under
certain circumstances set forth in Section 7.01 of the Trust Supplement, all
of
the Trustee's right, title and interest to the Trust Property may be assigned,
transferred and delivered to the Related Trustee of the Related Trust pursuant
to the Assignment and Assumption Agreement. Upon the effectiveness of such
Assignment and Assumption Agreement (the "Transfer"),
the
Trust shall be terminated, the Certificateholders shall receive beneficial
interests
in
the
Related Trust in exchange for their interests in the Trust equal to their
respective beneficial interests in the Trust, the Certificates representing
Fractional Undivided Interests in the Trust shall be deemed for all purposes
of
the Agreement and the Related Pass Through Trust Agreement to be certificates
representing the same fractional undivided interests in the Related Trust and
its trust property. Each Certificateholder, by its acceptance of this
Certificate or a beneficial interest herein, agrees to be bound by the
Assignment and Assumption Agreement and subject to the terms of the Related
Pass
Through Trust Agreement as a Certificateholder thereunder. From and after the
Transfer, unless and to the extent the context otherwise requires, references
herein to the Trust, the Agreement and the Trustee shall constitute references
to the Related Trust, the Related Pass Through Trust Agreement and trustee
of
the Related Trust, respectively.
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 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 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 or hold 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, UNTIL THE TRANSFER, THIS CERTIFICATE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS. THE RELATED PASS THROUGH TRUST AGREEMENT AND, FROM
AND AFTER THE TRANSFER, THIS CERTIFICATE SHALL BE GOVERNED 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.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
CONTINENTAL
AIRLINES PASS THROUGH TRUST 2007-1A-O
|
||
| |
|
|
| 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.
EXHIBIT
B
[DTC
Letter of Representations]
EXHIBIT
C
FORM
OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
Continental
Airlines Pass Through Trust 2007-1A-O
ASSIGNMENT
AND ASSUMPTION AGREEMENT (2007-1A-O), dated ________ __, ____ (the
"Assignment
Agreement"),
between Wilmington Trust Company, a Delaware banking corporation ("WTC"),
not
in its individual capacity except as expressly provided herein, but solely
as
trustee under the Pass Through Trust Agreement dated as of September 25, 1997
(as amended or modified from time to time, the "Basic
Agreement"),
as
supplemented by the Trust Supplement No. 2007-1A-O dated as of April 10, 2007
(the "Trust
Supplement"
and
together with the Basic Agreement, the "Agreement")
in
respect of the Continental Airlines Pass Through Trust 2007-1A-O (the
"Assignor"),
and
Wilmington Trust Company, a Delaware banking corporation, not in its individual
capacity except as expressly provided herein, but solely as trustee under the
Basic Agreement as supplemented by the Trust Supplement No. 2007-1A-S dated
as
of April 10, 2007 (the "New
Supplement",
and,
together with the Basic Agreement, the "New Agreement")
in
respect of the Continental Airlines Pass Through Trust 2007-1A-S (the
"Assignee").
W
I T N E
S S E T H:
WHEREAS,
the parties hereto desire to effect on the date hereof (the "Transfer
Date")
(a)
the transfer by the Assignor to the Assignee of all of the right, title and
interest of the Assignor in, under and with respect to, among other things,
the
Trust Property and each of the documents listed in Schedule I hereto (the
"Scheduled
Documents")
and
(b) the assumption by the Assignee of the obligations of the Assignor (i) under
the Scheduled Documents and (ii) in respect of the Applicable Certificates
issued under the Agreement; and
WHEREAS,
the Scheduled Documents permit such transfer upon satisfaction of certain
conditions heretofore or concurrently herewith being complied with;
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements herein contained, the parties hereto do hereby agree as follows
(capitalized terms used herein without definition having the meaning ascribed
thereto in the Agreement):
1. Assignment.
The
Assignor does hereby sell, assign, convey, transfer and set over unto the
Assignee as of the Transfer Date all of its present and future right, title
and
interest in, under and with respect to the Trust Property and the Scheduled
Documents and each other contract, agreement, document or instrument relating
to
the Trust Property or the Scheduled Documents (such other contracts, agreements,
documents or instruments, together with the Scheduled Documents, to be referred
to as the "Assigned
Documents"),
and
any proceeds therefrom, together with all documents and instruments evidencing
any of such right, title and interest.
2. Assumption.
The
Assignee hereby assumes for the benefit of the Assignor and each of the parties
listed in Schedule II hereto (collectively, the "Beneficiaries")
all of
the duties and obligations of the Assignor, whenever accrued, pursuant to the
Assigned Documents and hereby confirms that it shall be deemed a party to each
of the Assigned Documents to which the Assignor is a party and shall be bound
by
all the terms thereof (including the agreements and obligations of the Assignor
set forth therein) as if therein named as the Assignor. Further, the Assignee
hereby assumes for the benefit of the Assignor and the Beneficiaries all of
the
duties and obligations of the Assignor under the Outstanding Applicable
Certificates and hereby confirms that the Applicable Certificates representing
Fractional Undivided Interests under the Agreement shall be deemed for all
purposes of the Agreement and the New Agreement to be certificates representing
the same fractional undivided interests under the New Agreement equal to their
respective beneficial interests in the trust created under the
Agreement.
3. Effectiveness.
This
Assignment Agreement shall be effective upon the execution and delivery hereof
by the parties hereto, and each Applicable Certificateholder, by its acceptance
of its Applicable Certificate or a beneficial interest therein, agrees to be
bound by the terms of this Assignment Agreement.
4. Payments.
The
Assignor hereby covenants and agrees to pay over to the Assignee, if and when
received following the Transfer Date, any amounts (including any sums payable
as
interest in respect thereof) paid to or for the benefit of the Assignor that,
under Section 1 hereof, belong to the Assignee.
5. Further
Assurances.
The
Assignor shall, at any time and from time to time, upon the request of the
Assignee, promptly and duly execute and deliver any and all such further
instruments and documents and take such further action as the Assignee may
reasonably request to obtain the full benefits of this Assignment Agreement
and
of the rights and powers herein granted. The Assignor agrees to deliver any
Applicable Certificates, and all Trust Property, if any, then in the physical
possession of the Assignor, to the Assignee.
6. Representations
and Warranties.
(a) The
Assignee represents and warrants to the Assignor and each of the Beneficiaries
that:
(i) it
has
all requisite power and authority and legal right to enter into and carry out
the transactions contemplated hereby and to carry out and perform the
obligations of the "Pass Through Trustee" under the Assigned
Documents;
(ii) on
and as
of the date hereof, the representations and warranties of the Assignee set
forth
in Section 7.15 of the Basic Agreement and Section 5.04 of the New Supplement
are true and correct.
(b) The
Assignor represents and warrants to the Assignee that:
(i) it
is
duly incorporated, validly existing and in good standing under the laws of
the
State of Delaware and has the full trust power, authority and legal right under
the
laws
of the State of Delaware and the United States pertaining to its trust and
fiduciary powers to execute and deliver this Assignment Agreement;
(ii) the
execution and delivery by it of this Assignment Agreement and the performance
by
it of its obligations hereunder have been duly authorized by it and will not
violate its articles of association or by-laws or the provisions of any
indenture, mortgage, contract or other agreement to which it is a party or
by
which it is bound; and
(iii) this
Assignment Agreement constitutes the legal, valid and binding obligations of
it
enforceable against it in accordance with its terms, except as the same may
be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by general
principles of equity, whether considered in a proceeding at law or in
equity.
7. GOVERNING
LAW.
THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH
THE LAWS OF THE STATE OF NEW YORK INCLUDING MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE.
8. Counterparts.
This
Assignment Agreement may be executed in any number of counterparts, all of
which
together shall constitute a single instrument. It shall not be necessary that
any counterpart be signed by both parties so long as each party shall sign
at
least one counterpart.
9. Third
Party Beneficiaries.
The
Assignee hereby agrees, for the benefit of the Beneficiaries, that its
representations, warranties and covenants contained herein are also intended
to
be for the benefit of each Beneficiary, and each Beneficiary shall be deemed
to
be an express third party beneficiary with respect thereto, entitled to enforce
directly and in its own name any rights or claims it may have against such
party
as such beneficiary.
IN
WITNESS WHEREOF, the parties hereto, through their respective officers thereunto
duly authorized, have duly executed this Assignment Agreement as of the day
and
year first above written.
|
ASSIGNOR:
|
||
| |
|
WILMINGTON
TRUST COMPANY, not in its individual capacity except as expressly
provided
herein, but solely as trustee under the Pass Through Trust Agreement
and
Trust Supplement in respect of the Continental Airlines Pass Through
Trust
2007-1A-O
|
| By: | ||
| Title: | ||
|
ASSIGNEE:
|
||
| |
|
WILMINGTON
TRUST COMPANY, not in its individual capacity except as expressly
provided
herein, but solely as trustee under the Pass Through Trust Agreement
and
Trust Supplement in respect of the Continental Airlines Pass
Through Trust
2007-1A-S |
| By: | ||
| Title: | ||
C-4
Schedule
I
Schedule
of Assigned Documents
(1) Intercreditor
Agreement dated as of April 10, 2007 among the Trustee, the Other Trustees,
the
Liquidity Provider, the liquidity provider relating to the Class B Certificates
and the Subordination Agent.
(2) Escrow
and Paying Agent Agreement (Class A) dated as of April 10, 2007 among the Escrow
Agent, the Underwriters, the Trustee and the Paying Agent.
(3) Note
Purchase Agreement dated as of April 10, 2007 among the Company, the Trustee,
the Other Trustees, the Depositary, the Escrow Agent, the Paying Agent and
the
Subordination Agent.
(4) Deposit
Agreement (Class A) dated as of April 10, 2007 between the Escrow Agent and
the
Depositary.
(5) Each
of
the Operative Agreements (as defined in the Participation Agreement for each
Aircraft) in effect as of the Transfer Date.
Schedule
II
Schedule
of Beneficiaries
Wilmington
Trust Company, not in its individual capacity but solely as Subordination
Agent
Wilmington
Trust Company, not in its individual capacity but solely as Paying
Agent
RZB
Finance LLC, as Liquidity Provider
Raiffeisen
Zentralbank Österreich Aktiengesellschaft, as Liquidity Guarantor
Credit
Suisse, New York Branch, as Depositary
Continental
Airlines, Inc.
Morgan
Stanley & Co. Incorporated, as Underwriter
Credit
Suisse Securities (USA) LLC, as Underwriter
Merrill
Lynch, Pierce, Fenner & Smith Incorporated,
as
Underwriter
Citigroup
Global Markets Inc.,
as
Underwriter
UBS
Securities LLC,
as
Underwriter
Calyon
Securities (USA) Inc.,
as
Underwriter
J.P.Morgan
Securities Inc.,
as
Underwriter
Wells
Fargo Bank Northwest, National Association, as Escrow Agent
Each
of
the other parties to the Assigned Documents
TRUST
SUPPLEMENT No. 2007-1A-S
Dated
as
of April 10, 2007
between
WILMINGTON
TRUST COMPANY
as
Trustee,
and
CONTINENTAL
AIRLINES, INC.
to
PASS
THROUGH TRUST AGREEMENT
Dated
as
of September 25, 1997
$756,762,000
Continental
Airlines Pass Through Trust 2007-1A-S
5.983%
Continental Airlines
Pass
Through Certificates,
Series
2007-1A-S
Page
This
Trust Supplement No. 2007-1A-S, dated as of April 10, 2007 (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 has obtained commitments from Boeing for the delivery of certain
Aircraft;
WHEREAS,
as of the Transfer Date (as defined below), the Company will have financed
the
acquisition of all or a portion of such Aircraft through separate secured
loan
transactions, under which the Company owns such Aircraft (collectively, the
"Owned
Aircraft");
WHEREAS,
as of the Transfer Date, in the case of each Owned Aircraft, the Company
will
have issued pursuant to an Indenture, on a recourse basis, Equipment Notes
to
finance a portion of the purchase price of such Owned Aircraft;
WHEREAS,
as of the Transfer Date, the Related Trustee will assign, transfer and deliver
all of such trustee's right, title and interest to the trust property held
by
the Related Trustee to the Trustee pursuant to the Assignment and Assumption
Agreement (as defined below);
WHEREAS,
the Trustee, effective only, but automatically, upon execution and delivery
of
the Assignment and Assumption Agreement, will be deemed to have declared
the
creation of the Continental Airlines Pass Through Trust 2007-1A-S (the
"Applicable
Trust")
for
the benefit of the Applicable Certificateholders, and each Holder of Applicable
Certificates outstanding as of the Transfer Date, as the grantors of the
Applicable Trust, by their respective acceptances of such Applicable
Certificates, will join in the creation of the Applicable Trust with the
Trustee;
WHEREAS,
all Applicable Certificates (as defined below) deemed 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 Applicable Certificates to which
an
Escrow Receipt (as defined below) has been affixed;
WHEREAS,
upon the execution and delivery of the Assignment and Assumption Agreement,
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;
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:
THE
CERTIFICATES
Section
1.01.
The
Certificates.
The
Applicable Certificates shall be known as "Continental Airlines Pass Through
Certificates, Series 2007-1A-S". 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
initially deemed issued under the Agreement shall be equal to the aggregate
principal amount of "Outstanding" pass through certificates representing
fractional undivided interests in the Related Trust on the Transfer Date.
Subject to the preceding sentence and Section 5.01 of this Trust Supplement
and
except for Applicable Certificates authenticated and delivered under Sections
3.03, 3.04, 3.05 and 3.06 of the Basic Agreement, no Applicable Certificates
shall be authenticated under the Agreement.
(b) The
Regular Distribution Dates with respect to any payment of Scheduled Payments
means April 19 and October 19 of each year, commencing on October 19, 2007,
until payment of all of the Scheduled Payments to be made under the Equipment
Notes has been made.
(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 as Exhibit A to the
Related Pass Through Trust Supplement, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
by
the Related Pass Through Trust Agreement or the Agreement, as the case may
be,
or as the Trustee may deem appropriate, to reflect the fact that the Applicable
Certificates are being issued under the Agreement as opposed to under the
Related Pass Through Trust Agreement. 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
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 or
hold
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 as Exhibit B to the Related Pass Through
Trust
Supplement.
(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.
(k) The
"particular sections of the Note Purchase Agreement", for purposes of
clause (3) of Section 7.07 of the Basic Agreement, are Section 8.1 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.
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:
Means
the Basic Agreement, as supplemented by this Trust Supplement.
Aircraft:
Means
each of the New Aircraft or Substitute Aircraft in respect of which a
Participation Agreement is entered into in accordance with the NPA (or any
substitute aircraft, including engines therefor, owned by the Company and
securing one or more Equipment Notes).
Aircraft
Purchase Agreement:
Has the
meaning specified in the NPA.
Applicable
Certificate:
Means
any of the "Applicable Certificates" issued by the Related Trust and that
are
"Outstanding" (as defined in the Related Pass Through Trust Agreement) as
of the
Transfer Date (the "Transfer
Date Certificates")
and
any Certificate issued in exchange therefor or replacement thereof pursuant
to
the Agreement.
Applicable
Certificateholder:
Means
the Person in whose name an Applicable Certificate is registered on the Register
for the Applicable Certificates.
Applicable
Trust:
Has the
meaning specified in the recitals hereto.
Assignment
and Assumption Agreement:
Means
the assignment and assumption agreement substantially in the form of Exhibit
C
to the Related Pass Through Trust Supplement executed and delivered in
accordance with Section 7.01 of the Related Trust Supplement.
Basic
Agreement:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Boeing:
Means
The Boeing Company.
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 Applicable 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.
Certificate
Buyout Event:
Means
that a Continental Bankruptcy Event has occurred and is continuing and the
following events have occurred: (A) (i) the 60-day period specified in Section
1110(a)(2)(A) of the U.S. Bankruptcy Code (the “60-Day Period”) has expired and
(ii) Continental has not entered into one or more agreements under Section
1110(a)(2)(A) of the U.S. Bankruptcy Code to perform all of its obligations
under all of the Indentures or, if it has entered into such agreements, has
at
any time thereafter failed to cure any default under any of the Indentures
in
accordance with Section 1110(a)(2)(B) of the Bankruptcy Code; or (B) if prior
to
the expiry of the 60-Day Period, Continental shall have abandoned any
Aircraft.
Class:
Has the
meaning specified in the Intercreditor Agreement.
Company:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Continental
Bankruptcy Event:
Has the
meaning specified in the Intercreditor Agreement.
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:
Has the
meaning specified in the Related Pass Through Trust Supplement.
Deposit
Agreement:
Means
the Deposit Agreement dated as of April 10, 2007, 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
Credit Suisse, a banking institution organized under the laws of Switzerland,
acting through its New York branch.
Deposits:
Has the
meaning specified in the Deposit Agreement.
Distribution
Date:
Means
any Regular Distribution Date or Special Distribution Date as the context
requires.
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 April 10, 2007 relating
to the
Applicable Certificates, among the Escrow Agent, the Escrow Paying Agent,
the
Related Trustee (and after the Transfer Date, the Trustee) and the Underwriters,
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.
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
19, 2023.
Final
Withdrawal:
Has the
meaning specified in the Escrow Agreement.
Final
Withdrawal Date:
Has the
meaning specified in the Escrow Agreement.
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 dated as of April 10, 2007 among the Related
Trustee
(and after the Transfer Date, the Trustee), the Related Other Trustees (and
after the Transfer Date, the Other Trustees), the Liquidity Provider, the
liquidity provider relating to the Class B Certificates 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 Underwriters, together with all subsequent beneficial owners of the
Applicable Certificates.
Liquidity
Facility:
Means,
initially, the Revolving Credit Agreement dated as of April 10, 2007 relating
to
the Applicable Certificates, between the Liquidity Provider 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, in
each
case as amended, supplemented or otherwise modified from time to time in
accordance with their respective terms.
Liquidity
Provider:
Means,
initially, RZB Finance LLC, a limited liability company duly established
under
the laws of Delaware, and any replacements or successors therefor appointed
in
accordance with the Intercreditor Agreement.
New
Aircraft:
Has the
meaning specified in the NPA.
Note
Documents:
Means
the Equipment Notes with respect to the Applicable Certificates and, with
respect to any such Equipment Note, the Indenture and the Participation
Agreement relating to such Equipment Note.
NPA:
Means
the Note Purchase Agreement dated as of April 10, 2007 among the Related
Trustee
(and after the Transfer Date, the Trustee), the Related Other Trustees (and
after the Transfer Date, the Other Trustees), the Company, the Escrow Agent,
the
Escrow Paying Agent and the Subordination Agent, as the same may be amended,
supplemented or otherwise modified from time to time, in accordance with
its
terms.
Other
Agreements:
Means
(i) the Basic Agreement as supplemented by Trust Supplement
No. 2007-1B-S dated as of the date hereof relating to Continental Airlines
Pass Through Trust 2007-1B-S, (ii) the Basic Agreement as supplemented by
Trust Supplement No. 2007-1C-S dated as of the date hereof relating to
Continental Airlines Pass Through Trust 2007-1C-S, (iii) the Basic Agreement
as
supplemented by a Trust Supplement relating to any Additional Trust and (iv)
the
Basic Agreement as supplemented by a Trust Supplement relating to any
Refinancing Trust.
Other
Trustees:
Means
the trustees under the Other Agreements, and any successor or other trustee
appointed as provided therein.
Other
Trusts:
Means
the Continental Airlines Pass Through Trust 2007-1B-S, the Continental Airlines
Pass Through Trust 2007-1C-S, an Additional Trust or Trusts, if any, and
a
Refinancing Trust or Trusts, if any, created by the Other
Agreements.
Outstanding:
When
used with respect to Applicable Certificates, means, as of the date of
determination, all Transfer Date Certificates, and all other Applicable
Certificates theretofore authenticated and delivered under the Agreement,
in
each case except:
(i) Applicable
Certificates theretofore canceled by the Registrar or delivered to the Trustee
or the Registrar for cancellation;
(ii) Applicable
Certificates for which money in the full amount required to make the final
distribution with respect to such Applicable Certificates pursuant to Section
11.01 of the Basic Agreement has been theretofore deposited with the Trustee
in
trust for the Applicable Certificateholders as provided in Section 4.01 of
the
Basic Agreement pending distribution of such money to such Applicable
Certificateholders pursuant to payment of such final distribution;
and
(iii)
Applicable
Certificates in exchange for or in lieu of which other Applicable Certificates
have been authenticated and delivered pursuant to the Agreement.
Owned
Aircraft:
Has the
meaning specified in the third recital to this Trust Supplement.
Participation
Agreement:
Means
each Participation Agreement entered into by the Related Trustee pursuant
to the
NPA, as the same may be amended, supplemented or otherwise modified in
accordance with its terms.
Pool
Balance:
Means,
as of any date, (i) the original aggregate face amount of the "Applicable
Certificates" as defined in the Related Pass Through Trust Agreement, less
(ii) the aggregate amount of all payments made as of such date in respect
of such Certificates, the Applicable Certificates (as defined in the Related
Pass Through Trust Agreement) or the Deposits, other than payments made in
respect of interest or premium thereon or reimbursement of any costs or expenses
incurred in connec-tion therewith. The Pool Balance as of any 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" as defined in the Related Pass Through
Trust Agreement. 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 payment with respect to other
Trust Property and the distribution thereof to be made on that date.
Prospectus
Supplement:
Means
the final Prospectus Supplement dated March 27, 2007 relating to the offering
of
the Applicable Certificates, the Class B and the Class C
Certificates.
Ratings
Confirmation:
Has the
meaning specified in the Intercreditor Agreement.
Related
Other Pass Through Trust Agreements:
Means
the "Other Agreements" as defined in the Related Pass Through Trust Agreement.
Related
Other Trustees:
Means
the "Other Trustees" as defined in the Related Pass Through Trust
Agreement.
Related
Other Trusts:
Means
the "Other Trusts" as defined in the Related Pass Through Trust Agreement.
Related
Pass Through Trust Agreement:
Means
the Basic Agreement as supplemented by the Trust Supplement No. 2007-1A-O
dated
as of the date hereof (the "Related
Pass Through Trust Supplement"),
relating to the Continental Airlines Pass Through Trust 2007-1A-O and entered
into by the Company and the Related Trustee, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Related
Trust:
Means
the Continental Pass Through Trust 2007-1A-O, formed under the Related Pass
Through Trust Agreement.
Related
Trustee:
Means
the trustee under the Related Pass Through Trust Agreement.
Scheduled
Payment:
Means,
with respect to any Equipment Note, (i) any payment of principal or interest
on
such Equipment Note (other than any such payment which is not in fact received
by the Trustee or any Subordination Agent within five days of the date on
which
such payment is scheduled to be made) or (ii) any payment of interest on
the
Applicable Certificates with funds drawn under the Liquidity Facility, which
payment in any such case represents the installment of principal on such
Equipment Note at the stated maturity of such installment, the payment of
regularly scheduled interest accrued on the unpaid principal amount of such
Equipment Note, or both; provided,
however,
that
any payment of principal, premium, if any, or interest resulting from the
redemption or purchase of any Equipment Note shall not constitute a Scheduled
Payment.
Special
Payment:
Means
any payment (other than a Scheduled Payment) in respect of, or any proceeds
of,
any Equipment Note or Collateral (as defined in each Indenture).
Substitute
Aircraft:
Has the
meaning specified in the NPA.
Transfer
Date:
Means
the moment of execution and delivery of the Assignment and Assumption Agreement
by each of the parties thereto.
Transfer
Date Certificates:
Has the
meaning specified in the definition of "Applicable Certificates".
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 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
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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
will not constitute Trust Property.
|
Trust
Supplement:
Has the
meaning specified in the first paragraph of this trust supplement.
Trustee:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Underwriters:
Means,
collectively, Morgan Stanley & Co. Incorporated, Credit Suisse Securities
(USA) LLC, Merrill
Lynch, Pierce, Fenner & Smith Incorporated,
Citigroup
Global Markets Inc., UBS Securities LLC, Calyon Securities (USA) Inc. and
J.P.Morgan Securities Inc.
Underwriting
Agreement:
Means
the Underwriting Agreement dated March 27, 2007 among the Underwriters, the
Company and the Depositary, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
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, including any portion thereof paid by the Liquidity
Provider;
(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;
(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 or its nominee, on the Record Date prior to each Distribution Date,
the
Trustee will request that such Clearing Agency post on its Internet bulletin
board 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 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 U.S. 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) If
the
aggregate principal payments scheduled for a Regular Distribution Date prior
to
the Delivery Period Termination Date differ from the amount thereof set forth
for the Applicable Certificates on page S-33 of the Prospectus Supplement,
by no later than the 15th
day
prior to such Regular Distribution Date, the Trustee (if the Related Trustee
has
not already done so) shall mail written notice of the actual amount of such
scheduled payments to the Applicable Certificateholders of record as of a
date
within 15 Business Days prior to the date of mailing.
(d) 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
page S-33 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 (if the Related Trustee has not already
done so) 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 Transfer
Date,
the Trustee (if the Related Trustee has not already done so) 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" (as defined in the Related
Pass Through Trust Agreement) on the Delivery Period Termination Date. The
Trustee (if the Related Trustee has not already done so) 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.
(e) The
Trustee shall provide promptly to the Applicable Certificateholders all material
non-confidential information received by the Trustee from the
Company.
(f)
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 7.01 of this Trust Supplement 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 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 7.01 of this Trust Supplement),
(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.
Section
3.04. Limitation
of Liability for Payments.
Section
3.09 of the Basic Agreement shall be amended, with respect to the Applicable
Trust, by deleting the phrase "the Owner Trustees or the Owner Participants"
in
the second sentence thereof and adding in lieu thereof "the Liquidity
Provider".
DEFAULT
Section
4.01. Purchase
Rights of Certificateholders.
(a) By
acceptance of its Applicable Certificate, each Applicable Certificateholder
agrees that at any time after the occurrence and during the continuation
of a
Certificate Buyout Event:
(i)
each
Class B Certificateholder (other than the Company or any of its Affiliates)
shall have the right to purchase all, but not less than all, of the Applicable
Certificates upon 15 days' written notice to the Trustee and each other Class
B
Certificateholder, on the third Business Day next following the expiry of
such
15-day notice period, provided
that (A)
if prior to the end of such 15-day period any other Class B Certificateholder
(other than the Company or any of its Affiliates) notifies such purchasing
Class
B Certificateholder that such other Class B Certificateholder wants to
participate in such purchase, then such other Class B Certificateholder
(other than the Company or any of its Affiliates) may join with the purchasing
Class B Certificateholder to purchase all, but not less than all, of the
Applicable Certificates pro rata based on the Fractional Undivided Interest
in
the Class B Trust held by each such Class B Certificateholder and (B) if
prior
to the end of such 15-day period any other Class B Certificateholder fails
to
notify the purchasing Class B Certificateholder of such other Class B
Certificateholder's desire to participate in such a purchase, then such other
Class B Certificateholder shall lose its right to purchase the Applicable
Certificates pursuant to this Section 4.01(a)(i);
(ii)
each
Class C Certificateholder (other than the Company or any of its Affiliates)
shall have the right (which shall not expire upon any purchase of the Applicable
Certificates pursuant to clause (i) above) to purchase all, but not less
than
all, of the Applicable Certificates and the Class B Certificates upon 15
days'
written notice to the Trustee, the Class B Trustee and each other Class C
Certificateholder, on the third Business Day next following the expiry of
such
15-day notice period, provided
that (A)
if prior to the end of such 15-day period any other Class C Certificateholder
(other than the Company or any of its Affiliates) notifies such purchasing
Class
C Certificateholder that such other Class C Certificateholder wants to
participate in such purchase, then such other Class C Certificateholder (other
than the Company or any of its Affiliates) may join with the purchasing Class
C
Certificateholder to purchase all, but not less than all, of the Applicable
Certificates and the Class B Certificates pro rata based on the Fractional
Undivided Interest in the Class C Trust held by each such Class C
Certificateholder and (B) if prior to the end of such 15-day period any other
Class C Certificateholder fails to notify the purchasing Class C
Certificateholder of such other Class C Certificateholder's desire to
participate in such a purchase, then such other Class C Certificateholder
shall lose its right to purchase the Applicable Certificates and the Class
B
Certificates pursuant to this Section 4.01(a)(ii);
(iii)
if
any Additional Certificates are issued pursuant to one or more Additional
Trusts, each Additional Certificateholder (other than the Company
14
or
any of
its Affiliates), shall have the right (which shall not expire upon any purchase
of the Applicable Certificates pursuant to clauses (i) or (ii) above) to
purchase all, but not less than all, of the Applicable Certificates, the
Class B
Certificates, the Class C Certificates and any Additional Certificates ranked
senior to the Additional Certificates held by the purchasing Additional
Certificateholders upon 15 days' written notice to the Trustee, the Class
B
Trustee, the Class C Trustee, any Additional Trustee with respect to Additional
Certificates that rank senior to the Additional Certificates held by the
purchasing Additional Certificateholders and each other Additional
Certificateholder of the same Class, on the third Business Day next following
the expiry of such 15-day notice period, provided
that (A)
if prior to the end of such 15-day period any other Additional Certificateholder
of such Class (other than the Company or any of its Affiliates) notifies
such
purchasing Additional Certificateholder that such other Additional
Certificateholder wants to participate in such purchase, then such other
Additional Certificateholder (other than the Company or any of its Affiliates)
may join with the purchasing Additional Certificateholder to purchase all,
but
not less than all, of the Applicable Certificates, the Class B Certificates,
the
Class C Certificates and such senior Additional Certificates pro rata based
on
the Fractional Undivided Interest in the applicable Additional Trust held
by
each such Additional Certificateholder and (B) if prior to the end of such
15-day period any other Additional Certificateholder of such Class fails
to
notify the purchasing Additional Certificateholder of such other Additional
Certificateholder's desire to participate in such a purchase, then such other
Additional Certificateholder shall lose its right to purchase the Applicable
Certificates, the Class B Certificates, the Class C Certificates and such
senior Additional Certificates pursuant to this Section
4.01(a)(iii).
(iv)
if
any Refinancing Certificates are issued, each Refinancing Certificateholder
shall have the same right (subject to the same terms and conditions) to purchase
Certificates pursuant to this Section 4.01(a) (and to receive notice in
connection therewith) as the Certificateholders of the Class that such
Refinancing Certificates refinanced.
The
purchase price with respect to the Applicable Certificates shall be equal
to the
Pool Balance of the Applicable Certificates, together with accrued and unpaid
interest thereon to the date of such purchase, without premium, but including
any other amounts then due and payable to the Applicable Certificateholders
under the Agreement, the Intercreditor Agreement, the Escrow Agreement or
any
Note Document or on or in respect of the Applicable Certificates; provided,
however,
that no
such purchase of Applicable Certificates shall be effective unless the
purchaser(s) shall certify to the Trustee that contemporaneously with such
purchase, such purchaser(s) is (are) purchasing, pursuant to the terms of
the
Agreement and the Other Agreements, (A) in the case of any purchase of the
Applicable Certificates pursuant to clause (i) above, all of the Applicable
Certificates, (B) in the case of any purchase of the Applicable
Certificates pursuant to clause (ii) above, all of the Applicable Certificates
and the Class B Certificates, or (C) in all other cases, the
Applicable Certificates, the Class B Certificates, the Class C Certificates
and,
if applicable, the Additional Certificates that are senior to the securities
held by such purchaser(s). Each payment of the purchase price of the Applicable
Certificates referred to in the first sentence hereof shall be made to an
account or accounts designated by the
Trustee
and each such purchase shall be subject to the terms of this Section 4.01.
Each
Applicable Certificateholder agrees by its acceptance of its Applicable
Certificate that (at any time after the occurrence of a Certificate Buyout
Event) it will, upon payment from such Class B Certificateholder(s), Class
C
Certificateholder(s), Additional Certificateholder(s) or Refinancing
Certificateholders, as the case may be, of the purchase price set forth in
the
first sentence of this paragraph, (i) forthwith sell, assign, transfer and
convey to the purchaser(s) thereof (without recourse, representation or warranty
of any kind except for its own acts), all of the right, title, interest and
obligation of such Applicable Certificateholder in the Agreement, the Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity
Facility, the NPA, the Note Documents and all Applicable Certificates and
Escrow
Receipts held by such Applicable Certificateholder (excluding all right,
title
and interest under any of the foregoing to the extent such right, title or
interest is with respect to an obligation not then due and payable as respects
any action or inaction or state of affairs occurring prior to such sale)
(and
the purchaser shall assume all of such Applicable Certificateholder's
obligations under the Agreement, the Escrow Agreement, the Deposit Agreement,
the Intercreditor Agreement, the Liquidity Facility, the NPA, the Note Documents
and all such Applicable Certificates and Escrow Receipts), (ii) if such
purchase occurs after a record date specified in Section 2.03 of the Escrow
Agreement relating to the distribution of unused Deposits and/or accrued
and
unpaid interest on Deposits and prior to or on the related distribution date
thereunder, forthwith turn over to the purchaser(s) of its Applicable
Certificate all amounts, if any, received by it on account of such distribution,
and (iii) if such purchase occurs after a Record Date relating to any
distribution and prior to or on the related Distribution Date, forthwith
turn
over to the purchaser(s) of its Applicable Certificate all amounts, if any,
received by it on account of such distribution. The Applicable Certificates
will
be deemed to be purchased on the date payment of the purchase price is made
notwithstanding the failure of the Applicable Certificateholders to deliver
any
Applicable Certificates and, upon such a purchase, (I) the only rights of
the
Applicable Certificateholders will be to deliver the Applicable Certificates
to
the purchaser(s) and receive the purchase price for such Applicable Certificates
and (II) if the purchaser(s) shall so request, such Applicable Certificateholder
will comply with all the provisions of Section 3.04 of the Basic Agreement
to
enable new Applicable Certificates to be issued to the purchaser in such
denominations as it shall request. All charges and expenses in connection
with
the issuance of any such new Applicable Certificates shall be borne by the
purchaser thereof.
As
used
in this Section 4.01 and elsewhere in this Trust Supplement, the terms
"Additional Certificate", "Additional Certificateholder", "Additional Equipment
Notes", "Additional Trust", "Additional Trust Agreement", "Additional Trustee",
"Class B Certificate", "Class B Certificateholder", "Class B Trust", "Class
B
Trust Agreement", "Class B Trustee", "Class C Certificate", "Class C
Certificateholder", "Class C Trust", "Class C Trust Agreement", "Class C
Trustee", "Refinancing Certificates", "Refinancing Certificateholder",
"Refinancing Equipment Notes" and "Refinancing Trust" shall have the respective
meanings assigned to such terms in the Intercreditor Agreement.
(b) This
Section 4.01 supersedes and replaces Section 6.01(b) of the Basic
Agreement, with respect to the Applicable Trust.
Section
4.02. 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.
THE
TRUSTEE
Section
5.01. Acquisition
of Trust Property.
(a) The
Trustee is hereby irrevocably authorized and directed to execute and deliver
the
Assignment and Assumption Agreement on the date specified in Section 7.01
of the
Related Pass Through Trust Supplement, subject only to the satisfaction of
the
conditions set forth in said Section 7.01. The Agreement (except only for
this
sentence and the immediately preceding sentence hereof, which are effective
upon
execution and delivery hereof) shall become effective upon the execution
and
delivery of the Assignment and Assumption Agreement by the Trustee and the
Related Trustee, automatically and without any further signature or action
on
the part of the Company and the Trustee, and shall thereupon constitute the
legal, valid and binding obligation of the parties hereto enforceable against
each of the parties hereto in accordance with its terms. Upon such execution
and
delivery of the Assignment and Assumption Agreement, the Related Trust shall
be
terminated, the Applicable Certificateholders shall receive beneficial interests
in the Applicable Trust in exchange for their interests in the Related Trust
equal to their respective beneficial interests in the Related Trust and the
"Outstanding" (as defined in the Related Pass Through Trust Agreement) pass
through certificates representing fractional undivided interests in the Related
Trust shall be deemed for all purposes of the Agreement, without further
signature or action of any party or Certificateholder, to be Certificates
representing the same Fractional Undivided Interests in the Trust and Trust
Property. By acceptance of its Applicable Certificate, each Applicable
Certificateholder consents to and ratifies such assignment, transfer and
delivery of the trust property of the Related Trust to the Trustee upon the
execution and delivery of the Assignment and Assumption Agreement. The
provisions of this Section 5.01(a) 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 or Section
2.02 of the Basic Agreement shall not apply to the Applicable
Trust.
(b) The
Trustee, upon the execution and delivery of the Assignment and Assumption
Agreement, acknowledges its acceptance of all right, title and interest in
and
to the Trust Property and declares that the Trustee holds and will hold such
right, title and interest for the benefit of all then present and future
Applicable Certificateholders, upon the trusts herein and in the Basic Agreement
set forth. By the acceptance of each Applicable Certificate issued to it
under
the Related Pass Through Trust Agreement and deemed issued under the Agreement,
each Holder of any such Applicable Certificate as grantor of the Applicable
Trust thereby joins in the creation and declaration of the Applicable Trust.
The
provisions of this Section 5.01(b) supersede and replace the provisions of
Section 2.03 of the Basic Agreement, with respect to the Applicable
Trust.
Section
5.02. [Intentionally
Omitted]
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, on the Transfer Date, that:
(a) the
Trustee has full power, authority and legal right to receive the Trust Property
assigned by the Related Trustee, assume the obligations under, and perform,
the
Assignment and Assumption Agreement, this Trust Supplement, the Intercreditor
Agreement, the Escrow Agreement, the NPA and the Note Documents to which
it is a
party and has taken all necessary action to authorize such receipt, assumption
and performance by it of this Trust Supplement, the Intercreditor Agreement,
the
Escrow Agreement, the NPA and the Note Documents to which it is a
party;
(b) the
receipt of the Trust Property under the Assignment and Assumption Agreement
and
the performance by the Trustee of the Assignment and Assumption Agreement,
this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the
NPA and
the Note Documents to which it is 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
receipt of the Trust Property under the Assignment and Assumption Agreement
and
the performance by the Trustee of the Assignment and Assumption Agreement,
this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the
NPA and
the Note Documents to which it is 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) the
Assignment and Assumption Agreement has been duly executed and delivered
by the
Trustee and this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement, the NPA and the Note Documents to which it is 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.
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, (i) 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",
(ii) enter into one or more agreements supplemental to the Agreement, the
Intercreditor Agreement or the NPA to provide for the formation of one or
more
Additional Trusts, the issuance of Additional Certificates, the purchase
by any
Additional Trust of applicable Additional Equipment Notes and other matters
incidental thereto or otherwise contemplated by Section 2.01(b) of the Basic
Agreement, subject to the provisions of Section 4(a)(vi) of the NPA and Section
9.1 of the Intercreditor Agreement, and (iii) enter into one or more agreements
supplemental to the Agreement to provide for the formation of one or more
Refinancing Trusts, the issuance of Refinancing Certificates, the purchase
by
any Refinancing Trust of applicable Refinancing Equipment Notes and other
matters incidental thereto or as otherwise contemplated by Section 2.01(b)
of
the Basic Agreement, subject to the provisions of Section 4(a)(vi) of the
NPA
and Section 9.1(c) of the Intercreditor 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, the Liquidity
Facility or the NPA or modifying in any manner the rights and obligations
of the
Applicable Certificateholders under the Escrow Agreement, the Deposit Agreement,
the Liquidity Facility 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.
Section
6.04. Consent
of Holders of Certificates Issued under Other Trusts.
Notwithstanding any provision in Section 6.02 or Section 6.03 of this Trust
Supplement to the contrary, no amendment or modification of Section 4.01
of this
Trust Supplement shall be effective unless the trustee for each Class of
Certificates affected by such amendment or modification shall have consented
thereto.
TERMINATION
OF TRUST
Section
7.01. Termination
of the Applicable Trust.
(a) The respective obligations and responsibilities of the Company
and the Trustee with respect to the Applicable Trust shall terminate upon
the
distribution to all Applicable Certificateholders and the Trustee 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; provided,
however,
that in
no event shall the Applicable Trust continue beyond one hundred ten (110)
years
following the date of the execution of this Trust Supplement.
Notice
of
any termination, specifying the Distribution Date upon which the Applicable
Certificateholders may surrender their Applicable Certificates to the Trustee
for payment of the final distribution and cancellation, shall be mailed promptly
by the Trustee to Applicable Certificateholders not earlier than the
60th
day and
not later than the 15th
day next
preceding such final Distribution Date specifying (A) the Distribution Date
upon
which the proposed final payment of the Applicable Certificates will be made
upon presentation and surrender of Applicable Certificates at the office
or
agency of the Trustee therein specified, (B) the amount of any such
proposed final payment, and (C) that the Record Date otherwise applicable
to
such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Applicable Certificates at the office or
agency of the Trustee therein specified. The Trustee shall give such notice
to
the Registrar at the time such notice is given to Applicable Certificateholders.
Upon presentation and surrender of the Applicable Certificates in accordance
with such notice, the Trustee shall cause to be distributed to Applicable
Certificateholders such final payments.
In
the
event that all of the Applicable Certificateholders shall not surrender their
Applicable Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Trustee shall give a
second
written notice to the remaining Applicable Certificateholders to surrender
their
Applicable Certificates for cancellation and receive the final distribution
with
respect thereto. No additional interest shall accrue on the Applicable
Certificates after the Distribution Date specified in the first written notice.
In the event that any money held by the Trustee for the payment of distributions
on the Applicable Certificates shall remain unclaimed for two years (or such
lesser time as the Trustee shall be satisfied, after sixty days' notice from
the
Company, is one month prior to the escheat period provided under applicable
law)
after the final distribution date with respect thereto, the Trustee shall
pay to
each Loan Trustee the appropriate amount of money relating to such Loan Trustee
and shall give written notice thereof to the Company.
(b) The
provisions of this Section 7.01 supersede and replace the provisions of Section
11.01 of the Basic Agreement in its entirety, with respect to the Applicable
Trust.
MISCELLANEOUS
PROVISIONS
Section 8.01.
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.
Section
8.02. GOVERNING
LAW.
THE
AGREEMENT AND THE APPLICABLE CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED
IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THIS SECTION
8.02
SUPERSEDES AND REPLACES SECTION 12.05 OF THE BASIC
AGREEMENT,
WITH RESPECT TO THE APPLICABLE TRUST.
Section
8.03. 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
8.04. 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.
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.
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CONTINENTAL
AIRLINES, INC.
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By:
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|
Name:
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|
Title:
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WILMINGTON
TRUST COMPANY,
as Trustee
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By:
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Name:
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Title:
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23
TRUST
SUPPLEMENT No. 2007-1B-O
Dated
as
of April 10, 2007
between
WILMINGTON
TRUST COMPANY
as
Trustee,
and
CONTINENTAL
AIRLINES, INC.
to
PASS
THROUGH TRUST AGREEMENT
Dated
as
of September 25, 1997
$221,850,000
Continental
Airlines Pass Through Trust 2007-1B-O
6.903%
Continental Airlines
Pass
Through Certificates,
Series
2007-1B-O
Page
Exhibit
A - Form
of Certificate
Exhibit
B - DTC
Letter of Representations
Exhibit
C - Form
of Assignment and Assumption
Agreement
This
Trust Supplement No. 2007-1B-O, dated as of April 10, 2007 (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
;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 has obtained commitments from Boeing for the delivery of certain
Aircraft;
WHEREAS,
the Company intends to finance the acquisition of each such Aircraft through
separate secured loan transactions, under which the Company will own such
Aircraft (collectively, the "Owned
Aircraft");
WHEREAS,
in the case of each Owned Aircraft, the Company will issue pursuant to an
Indenture, on a recourse basis, Equipment Notes to finance a portion of the
purchase price of such Owned Aircraft;
WHEREAS,
the Trustee hereby declares the creation of the Continental Airlines Pass
Through Trust 2007-1B-O (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 Underwriters have contemporaneously herewith entered
into an Escrow Agreement with the Escrow Paying Agent pursuant to which the
Underwriters have delivered to the Escrow Agent the proceeds from the sale
of
the Applicable Certificates, 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 delivered by
Boeing under the Aircraft Purchase Agreement 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;
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, 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;
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 "Continental Airlines Pass Through Certificates,
Series 2007-1B-O" (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 under Sections 3.03, 3.04, 3.05 and 3.06 of the
Basic Agreement) is $221,850,000.
(b) The
Regular Distribution Dates with respect to any payment of Scheduled Payments
means April 19 and October 19 of each year, commencing on October 19, 2007,
until payment of all of the Scheduled Payments to be made under the Equipment
Notes has been made.
(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 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 or hold 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.
(k) The
"particular sections of the Note Purchase Agreement", for purposes of clause
(3)
of Section 7.07 of the Basic Agreement, are Section 8.1 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 New Aircraft 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,
owned by the Company and securing one or more Equipment Notes).
Aircraft
Purchase Agreement:
Has the
meaning specified 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
Delivery 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.
Assignment
and Assumption Agreement:
Means
the assignment and assumption agreement substantially in the form of Exhibit
C
hereto executed and delivered in accordance with Section 7.01 of this Trust
Supplement.
Basic
Agreement:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Boeing:
Means
The Boeing Company.
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 Applicable 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.
Certificate:
Has the
meaning specified in the Intercreditor Agreement.
Certificate
Buyout Event:
Means
that a Continental Bankruptcy Event has occurred and is continuing and the
following events have occurred: (A) (i) the 60-day period specified in Section
1110(a)(2)(A) of the U.S. Bankruptcy Code (the “60-Day Period”) has expired and
(ii) Continental has not entered into one or more agreements under Section
1110(a)(2)(A) of the U.S. Bankruptcy Code to perform all of its obligations
under all of the Indentures or, if it has entered into such agreements, has
at
any time thereafter failed to cure any default under any of the Indentures
in
accordance with Section 1110(a)(2)(B) of the Bankruptcy Code; or (B) if prior
to
the expiry of the 60-Day Period, Continental shall have abandoned any
Aircraft.
Class:
Has the
meaning specified in the Intercreditor Agreement.
Company:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Continental
Bankruptcy Event:
Has the
meaning specified in the Intercreditor Agreement.
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) June 30, 2009, or, if the Equipment Notes relating to
all of the New Aircraft (or Substitute Aircraft in lieu thereof) have not been
purchased by the Applicable Trust and the Other Trusts 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, September 30, 2009 (provided
that, if
a labor strike occurs at Boeing on or prior to either or both of such dates
referred to in this clause (a), such date or dates on or following the
commencement of such strike shall be extended by adding thereto the number
of
days that such strike continued in effect), and (b) the date on which Equipment
Notes issued with respect to all of the New Aircraft (or Substitute Aircraft
in
lieu thereof) have been purchased by the Applicable Trust and the Other Trusts
in accordance with the NPA.
Deposit
Agreement:
Means
the Deposit Agreement dated as of April 10, 2007 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
Credit Suisse, a banking institution organized under the laws of Switzerland,
acting through its New York branch.
Deposits:
Has the
meaning specified in the Deposit Agreement.
Distribution
Date:
Means
any Regular Distribution Date or Special Distribution Date as the context
requires.
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 April 10, 2007 relating to
the
Applicable Certificates, among the Escrow Agent, the Escrow Paying Agent, the
Trustee and Underwriters, 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.
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
19, 2023.
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 dated as of April 10, 2007 among the Trustee, the
Other Trustees, the Liquidity Provider, the liquidity provider
relating
to the Class A Certificates 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 Underwriters, together with all subsequent beneficial owners of the
Applicable Certificates.
Liquidity
Facility:
Means,
initially, the Revolving Credit Agreement dated as of April 10, 2007 relating
to
the Applicable Certificates, between the Liquidity Provider 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, in each
case as amended, supplemented or otherwise modified from time to time in
accordance with their respective terms.
Liquidity
Provider:
Means,
initially, RZB Finance LLC, a limited liability company duly established under
the laws of Delaware, and any replacements or successors therefor appointed
in
accordance with the Intercreditor Agreement.
New
Aircraft:
Has the
meaning specified in the NPA.
Note
Documents:
Means
the Equipment Notes with respect to the Applicable Certificates and, with
respect to any such Equipment Note, the Indenture and the Participation
Agreement relating to such Equipment Note.
Notice
of Purchase Withdrawal:
Has the
meaning specified in the Deposit Agreement.
NPA:
Means
the Note Purchase Agreement dated as of April 10, 2007 among the Trustee, the
Other Trustees, 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.
Other
Agreements:
Means
(i) the Basic Agreement as supplemented by Trust Supplement
No. 2007-1A-O dated as of the date hereof relating to Continental Airlines
Pass Through Trust 2007-1A-O, (ii) the Basic Agreement as supplemented by
Trust Supplement No. 2007-1C-O dated as of the date hereof relating to
Continental Airlines Pass Through Trust 2007-1C-O, (iii) the Basic Agreement
as
supplemented by a Trust Supplement relating to any Additional Trust and (iv)
the
Basic Agreement as supplemented by a Trust Supplement relating to any
Refinancing Trust.
Other
Trustees:
Means
the trustees under the Other Agreements, and any successor or other trustee
appointed as provided therein.
Other
Trusts:
Means
the Continental Airlines Pass Through Trust 2007-1A-O, the Continental Airlines
Pass Through Trust 2007-1C-O, an Additional Trust or Trusts, if any, and a
Refinancing Trust or Trusts, if any, created by the Other
Agreements.
Owned
Aircraft:
Has the
meaning specified in the third recital to this Trust Supplement.
Participation
Agreement:
Means
each Participation Agreement to be entered into, or entered into (as the case
may be), by the Trustee pursuant to the NPA, as the same may be amended,
supplemented or otherwise modified 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 as of such
date
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
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
payment with respect to other Trust Property and the distribution thereof to
be
made on that date.
Prospectus
Supplement:
Means
the final Prospectus Supplement dated March 27, 2007 relating to the offering
of
the Applicable Certificates, the Class A and the Class C
Certificates.
Ratings
Confirmation:
Has the
meaning specified in the Intercreditor Agreement.
Related
Pass Through Trust Agreement:
Means
the Basic Agreement as supplemented by the Trust Supplement No. 2007-1B-S dated
as of the date hereof relating to the Continental Airlines Pass Through Trust
2007-1B-S and entered into by the Company and the Related Trustee, which
agreement becomes effective upon the execution and delivery of the Assignment
and Assumption Agreement pursuant to Section 7.01 of this Trust
Supplement.
Related
Trust:
Means
the Continental Pass Through Trust 2007-1B-S, to be formed under the Related
Pass Through Trust Agreement.
Related
Trustee:
Means
the trustee under the Related Pass Through Trust Agreement.
Scheduled
Delivery Date:
Has the
meaning specified in the NPA.
Scheduled
Payment:
Means,
with respect to any Equipment Note, (i) any payment of principal or interest
on
such Equipment Note (other than any such payment which is not in fact received
by the Trustee or any Subordination Agent within five days of the date on which
such payment is scheduled to be made) or (ii) any payment of interest on the
Applicable Certificates with funds drawn under the Liquidity Facility, which
payment in any such case represents the installment of principal on such
Equipment Note at the stated maturity of such installment, the payment of
regularly scheduled interest accrued on the unpaid principal amount of such
Equipment Note, or both; provided,
however,
that
any payment of principal, premium, if any, or interest resulting from the
redemption or purchase of any Equipment Note shall not constitute a Scheduled
Payment.
Special
Payment:
Means
any payment (other than a Scheduled Payment) in respect of, or any proceeds
of,
any Equipment Note or Collateral (as defined in each Indenture).
Substitute
Aircraft:
Has the
meaning specified in the NPA.
Transfer
Date:
Has the
meaning specified in Section 7.01 of this Trust Supplement.
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 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.
Trustee:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Underwriters:
Means,
collectively, Morgan Stanley & Co. Incorporated, Credit Suisse Securities
(USA) LLC, Merrill
Lynch, Pierce, Fenner & Smith Incorporated,
Citigroup
Global Markets Inc., UBS Securities LLC, Calyon Securities (USA) Inc. and
J.P.Morgan Securities Inc.
Underwriting
Agreement:
Means
the Underwriting Agreement dated March 27, 2007 among the Underwriters, the
Company and the Depositary, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
ARTICLE
III
CERTIFICATES;
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, including any portion thereof paid by the Liquidity
Provider;
(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;
(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 or its nominee, on the Record Date prior to each Distribution Date,
the
Trustee will request that such Clearing Agency post on its Internet bulletin
board 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 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 U.S. 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) If
the
aggregate principal payments scheduled for a Regular Distribution Date prior
to
the Delivery Period Termination Date differ from the amount thereof set forth
for the Applicable Certificates on page S-33 of the Prospectus Supplement,
by no
later than the 15th
day
prior to such Regular Distribution Date, the Trustee shall mail written notice
of the actual amount of such scheduled payments to the Applicable
Certificateholders of record as of a date within 15 Business Days prior to
the
date of mailing.
(d) 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
page S-33 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.
(e) The
Trustee shall provide promptly to the Applicable Certificateholders all material
non-confidential information received by the Trustee from the
Company.
(f)
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 7.01 of this Trust Supplement 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 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 7.01 of this Trust Supplement),
(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.
Section
3.04. Limitation
of Liability for Payments.
Section
3.09 of the Basic Agreement shall be amended, with respect to the Applicable
Trust, by deleting the phrase "the Owner Trustees or the Owner Participants"
in
the second sentence thereof and adding in lieu thereof "the Liquidity
Provider".
ARTICLE
IV
DEFAULT
Section
4.01. Purchase
Rights of Certificateholders.
(a) At
any time after the occurrence and during the continuation of a Certificate
Buyout Event, each Applicable Certificateholder (other than the Company or
any
of its Affiliates) shall have the right to purchase, for the purchase price
set
forth in the Class A Trust Agreement, all, but not less than all, of the Class
A
Certificates upon 15 days' written notice to the Class A Trustee and each other
Applicable Certificateholder, on the third Business Day next following the
expiry of such 15-day notice period, provided
that (A)
if prior to the end of such 15-day period any other Applicable Certificateholder
(other than the Company or any of its Affiliates) notifies such purchasing
Applicable Certificateholder that such other Applicable Certificateholder wants
to participate in such purchase, then such other Applicable Certificateholder
(other than the Company or any of its Affiliates) may join with the purchasing
Applicable Certificateholder to purchase all, but not less than all, of the
Class A Certificates pro rata based on the Fractional Undivided Interest in
the
Applicable Trust held by each such Applicable Certificateholder and (B) if
prior
to the end of such 15-day period any other Applicable Certificateholder fails
to
notify the purchasing Applicable Certificateholder of such other Applicable
Certificateholder's desire to participate in such a purchase, then such other
Applicable Certificateholder shall lose its right to purchase the Class A
Certificates pursuant to this Section 4.01(a);
(b)
By
acceptance of its Applicable Certificate, each Applicable Certificateholder
agrees that that at any time after the occurrence and during the continuation
of
a Certificate Buyout Event:
(i) each
Class C Certificateholder (other than the Company or any of its Affiliates)
shall have the right (which shall not expire upon any purchase of the Class
A
Certificates pursuant to clause (a) above) to purchase all, but not less than
all, of the Class A Certificates and the Applicable Certificates upon 15 days'
written notice to the Trustee, the Class A Trustee and each other Class C
Certificateholder, on the third Business Day next following the expiry of such
15-day notice period, provided
that (A)
if prior to the end of such 15-day period any other Class C Certificateholder
(other than the Company or any of its Affiliates) notifies such purchasing
Class
C Certificateholder that such other Class C Certificateholder wants to
participate in such purchase, then such other Class C Certificateholder (other
than the Company or any of its Affiliates) may join with the purchasing Class
C
Certificateholder to purchase all, but not less than all, of the Class A
Certificates and the Applicable Certificates pro rata based on the Fractional
Undivided Interest in the Class C Trust held by each such Class C
Certificateholder and (B) if prior to the end of such 15-day period any other
Class C Certificateholder fails to notify the purchasing Class C
Certificateholder of such other Class C Certificateholder's desire to
participate in such a purchase, then such other Class C Certificateholder
shall lose its right to purchase the Class A Certificates and the Applicable
Certificates pursuant to this Section 4.01(b)(i);
(ii) if
any
Additional Certificates are issued pursuant to one or more Additional Trusts,
each Additional Certificateholder (other than the Company or any of its
Affiliates), shall have the right (which shall not expire upon any purchase
of
the Applicable Certificates pursuant to clauses (a) or (b)(i) above) to purchase
all, but not less than all, of the Class A Certificates, the Applicable
Certificates, the Class C Certificates and any Additional Certificates ranked
senior to the Additional Certificates held by the purchasing Additional
Certificateholders upon 15 days' written notice to the Trustee, the Class A
Trustee, the Class C Trustee, any Additional Trustee with respect to Additional
Certificates that rank senior to the Additional Certificates held by the
purchasing Additional Certificateholders and each other Additional
Certificateholder of the same Class, on the third Business Day next following
the expiry of such 15-day notice period, provided
that (A)
if prior to the end of such 15-day period any other Additional Certificateholder
of such Class (other than the Company or any of its Affiliates) notifies such
purchasing Additional Certificateholder that such other Additional
Certificateholder wants to participate in such purchase, then such other
Additional Certificateholder (other than the Company or any of its Affiliates)
may join with the purchasing Additional Certificateholder to purchase all,
but
not less than all, of the Class A Certificates, the Applicable Certificates,
the
Class C Certificates and such senior Additional Certificates pro rata based
on
the Fractional Undivided Interest in the applicable Additional Trust held by
each such Additional Certificateholder and (B) if prior to the end of such
15-day period any other Additional Certificateholder of such Class fails to
notify the purchasing Additional Certificateholder of such other Additional
Certificateholder's desire to participate in such a purchase, then such other
Additional Certificateholder shall lose its right to purchase the Class A
Certificates, the Applicable Certificates, the Class C Certificates and
such senior Additional Certificates pursuant to this Section
4.01(b)(ii).
(iii)
if
any Refinancing Certificates are issued, each Refinancing Certificateholder
shall have the same right (subject to the same terms and conditions) to purchase
Certificates pursuant to this Section 4.01(b) (and to receive notice in
connection therewith) as the Certificateholders of the Class that such
Refinancing Certificates refinanced.
The
purchase price with respect to the Applicable Certificates shall be equal to
the
Pool Balance of the Applicable Certificates, together with accrued and unpaid
interest thereon to the date of such purchase, without premium, but including
any other amounts then due and payable to the Applicable Certificateholders
under the Agreement, the Intercreditor Agreement, the Escrow Agreement or any
Note Document or on or in respect of the Applicable Certificates; provided,
however,
that no
such purchase of Applicable Certificates shall be effective unless the
purchaser(s) shall certify to the Trustee that contemporaneously with such
purchase, such purchaser(s) is (are) purchasing, pursuant to the terms of the
Agreement and the Other Agreements, (A) in the case of any purchase of the
Applicable Certificates pursuant to clause (i) above, all of the Applicable
Certificates and the Class A Certificates, or (B) in all other cases,
the Applicable Certificates, the Class A Certificates, the Class C Certificates
and, if applicable, the Additional Certificates that are senior to the
securities held by such purchaser(s). Each payment of the purchase price of
the
Applicable Certificates referred to in the first sentence hereof shall be made
to an account or accounts designated by the Trustee and each such purchase
shall
be subject to the terms of this Section 4.01. Each Applicable Certificateholder
agrees by its acceptance of its Applicable Certificate that (at any time after
the occurrence of a Certificate Buyout Event) it will, upon payment from Class
C
Certificateholder(s), Additional Certificateholder(s) or Refinancing
Certificateholders, as the case may be, of the purchase price set forth in
the
first sentence of this paragraph, (i) forthwith sell, assign, transfer and
convey to the purchaser(s) thereof (without recourse, representation or warranty
of any kind except for its own acts), all of the right, title, interest and
obligation of such Applicable Certificateholder in the Agreement, the Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity
Facility, the NPA, the Note Documents and all Applicable Certificates and Escrow
Receipts held by such Applicable Certificateholder (excluding all right, title
and interest under any of the foregoing to the extent such right, title or
interest is with respect to an obligation not then due and payable as respects
any action or inaction or state of affairs occurring prior to such sale) (and
the purchaser shall assume all of such Applicable Certificateholder's
obligations under the Agreement, the Escrow Agreement, the Deposit Agreement,
the Intercreditor Agreement, the Liquidity Facility, the NPA, the Note Documents
and all such Applicable Certificates and Escrow Receipts), (ii) if such
purchase occurs after a record date specified in Section 2.03 of the Escrow
Agreement relating to the distribution of unused Deposits and/or accrued and
unpaid interest on Deposits and prior to or on the related distribution date
thereunder, forthwith turn over to the purchaser(s) of its Applicable
Certificate all amounts, if any, received by it on account of such distribution,
and (iii) if such purchase occurs after a Record Date relating to any
distribution and prior to or on the related Distribution Date, forthwith turn
over to the purchaser(s) of its Applicable Certificate all amounts, if any,
received by it on account of such distribution. The Applicable Certificates
will
be deemed to be purchased on the date payment of the purchase price is made
notwithstanding the failure of the Applicable Certificateholders to deliver
any
Applicable Certificates and, upon such a purchase, (I) the only rights of the
Applicable
Certificateholders will be to deliver the Applicable Certificates to the
purchaser(s) and receive the purchase price for such Applicable Certificates
and
(II) if the purchaser(s) shall so request, such Applicable Certificateholder
will comply with all the provisions of Section 3.04 of the Basic Agreement
to
enable new Applicable Certificates to be issued to the purchaser in such
denominations as it shall request. All charges and expenses in connection with
the issuance of any such new Applicable Certificates shall be borne by the
purchaser thereof.
As
used
in this Section 4.01 and elsewhere in this Trust Supplement, the terms
"Additional Certificate", "Additional Certificateholder", "Additional Equipment
Notes", "Additional Trust", "Additional Trust Agreement", "Additional Trustee",
"Class A Certificate", "Class A Certificateholder", "Class A Trust", "Class
A
Trust Agreement", "Class A Trustee", "Class C Certificate", "Class C
Certificateholder", "Class C Trust", "Class C Trust Agreement", "Class C
Trustee", "Refinancing Certificates", "Refinancing Certificateholder",
"Refinancing Equipment Notes" and "Refinancing Trust" shall have the respective
meanings assigned to such terms in the Intercreditor Agreement.
(c) This
Section 4.01 supersedes and replaces Section 6.01(b) of the Basic Agreement,
with respect to the Applicable Trust.
Section
4.02. 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.
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 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) 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 Delivery
Date
as
to which such Delivery Notice relates (the "Applicable
Delivery 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 Delivery 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 Company, all as shall be described
in the Delivery Notice. 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 Delivery 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 Delivery 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 Delivery Date in accordance with the terms
of the Deposit Agreement and the Escrow Agreement. 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 Delivery
Date to the purchase price of the Equipment Notes, shall be re-deposited by
the
Trustee with the Depositary on the Applicable Delivery 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.
(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 promptly 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 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.
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, (i) 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", (ii) enter into one or more agreements
supplemental to the Agreement, the Intercreditor Agreement or the NPA to provide
for the formation of one or more Additional Trusts, the
issuance
of Additional Certificates, the purchase by any Additional Trust of applicable
Additional Equipment Notes and other matters incidental thereto or otherwise
contemplated by Section 2.01(b) of the Basic Agreement, subject to the
provisions of Section 4(a)(vi) of the NPA and Section 9.1 of the Intercreditor
Agreement, and (iii) enter into one or more agreements supplemental to the
Agreement to provide for the formation of one or more Refinancing Trusts, the
issuance of Refinancing Certificates, the purchase by any Refinancing Trust
of
applicable Refinancing Equipment Notes and other matters incidental thereto
or
as otherwise contemplated by Section 2.01(b) of the Basic Agreement, subject
to
the provisions of Section 4(a)(vi) of the NPA and Section 9.1(c) of the
Intercreditor 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, the Liquidity
Facility or the NPA or modifying in any manner the rights and obligations of
the
Applicable Certificateholders under the Escrow Agreement, the Deposit Agreement,
the Liquidity Facility 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.
Section
6.04. Consent
of Holders of Certificates Issued under Other Trusts.
Notwithstanding any provision in Section 6.02 or Section 6.03 of this Trust
Supplement to the contrary, no amendment or modification of Section 4.01 of
this
Trust Supplement shall be effective unless the trustee for each Class of
Certificates affected by such amendment or modification shall have consented
thereto.
TERMINATION
OF TRUST
Section
7.01. Termination
of the Applicable Trust.
(a) The respective obligations and responsibilities of the Company
and the Trustee with respect to the Applicable Trust shall terminate upon the
earlier of (A) the completion of the assignment, transfer and discharge
described in the first sentence of the immediately following paragraph and
(B) distribution to all Applicable Certificateholders and the Trustee 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; provided,
however,
that in
no event shall the Applicable Trust continue beyond one hundred ten (110) years
following the date of the execution of this Trust Supplement.
Upon
the
earlier of (i) the first Business Day following June 30, 2009 or, if later,
the
fifth Business Day following the Delivery Period Termination Date and (ii)
the
fifth Business Day following the date on which a Triggering Event occurs (such
date, the "Transfer
Date"),
or,
if later, the date on which all of the conditions set forth in the immediately
following sentence have been satisfied, the Trustee is hereby directed (subject
only to the immediately following sentence) to, and the Company shall direct
the
institution that will serve as the Related Trustee
under
the
Related Pass Through Trust Agreement to, execute and deliver the Assignment
and
Assumption Agreement, pursuant to which the Trustee shall assign, transfer
and
deliver all of the Trustee's right, title and interest to the Trust Property
to
the Related Trustee under the Related Pass Through Trust Agreement. The Trustee
and the Related Trustee shall execute and deliver the Assignment and Assumption
Agreement upon the satisfaction of the following conditions:
(i) The
Trustee, the Related Trustee and each of the Rating Agencies then rating the
Applicable Certificates shall have received an Officer's Certificate and an
Opinion of Counsel dated the date of the Assignment and Assumption Agreement
and
each satisfying the requirements of Section 1.02 of the Basic Agreement, which
Opinion of Counsel shall be substantially to the effect set forth below and
may
be relied upon by the Beneficiaries (as defined in the Assignment and Assumption
Agreement):
(I) Upon
the
execution and delivery thereof by the parties thereto in accordance with the
terms of the Agreement and the Related Pass Through Trust Agreement, the
Assignment and Assumption Agreement will constitute the valid and binding
obligation of each of the parties thereto enforceable against each such party
in
accordance with its terms;
(II) Upon
the
execution and delivery of the Assignment and Assumption Agreement in accordance
with the terms of the Agreement and the Related Pass Through Trust Agreement,
each of the Applicable Certificates then Outstanding will be entitled to the
benefits of the Related Pass Through Trust Agreement;
(III) The
Related Trust is not required to be registered as an investment company under
the Investment Company Act of 1940, as amended;
(IV) The
Related Pass Through Trust Agreement constitutes the valid and binding
obligation of the Company enforceable against the Company in accordance with
its
terms; and
(V) Neither
the execution and delivery of the Assignment and Assumption Agreement in
accordance with the terms of the Agreement and the Related Pass Through Trust
Agreement, nor the consummation by the parties thereto of the transactions
contemplated to be consummated thereunder on the date thereof, will violate
any
law or governmental rule or regulation of the State of New York or the United
States of America known to such counsel to be applicable to the transactions
contemplated by the Assignment and Assumption Agreement.
(ii) The
Trustee and the Company shall have received (x) a copy of the articles of
incorporation and bylaws of the Related Trustee certified as of the Transfer
Date by the Secretary or Assistant Secretary of such institution and (y) a copy
of the filing (including all attachments thereto) made by the institution
serving as the Related Trustee with the Office of the Superintendent, State
of
New York Banking Department for the qualification of the Related Trustee under
Section 131(3) of the New York Banking Law.
Upon
the
execution of the Assignment and Assumption Agreement by the parties thereto,
the
Applicable Trust shall be terminated, the Applicable Certificateholders shall
receive beneficial interests in the Related Trust in exchange for their
interests in the Applicable Trust equal to their respective beneficial interests
in the Applicable Trust, and the Outstanding Applicable Certificates
representing Fractional Undivided Interests in the Applicable Trust shall be
deemed for all purposes of the Agreement and the Related Pass Through Trust
Agreement, without further signature or action of any party or Applicable
Certificateholder, to be certificates representing the same fractional undivided
interests in the Related Trust and its trust property. By acceptance of its
Applicable Certificate, each Applicable Certificateholder consents to such
assignment, transfer and delivery of the Trust Property to the trustee of the
Related Trust upon the execution and delivery of the Assignment and Assumption
Agreement.
In
connection with the occurrence of the event set forth in clause (B) above,
notice of such termination, specifying the Distribution Date upon which the
Applicable Certificateholders may surrender their Applicable Certificates to
the
Trustee for payment of the final distribution and cancellation, shall be mailed
promptly by the Trustee to Applicable Certificateholders not earlier than the
60th
day and
not later than the 15th
day next
preceding such final Distribution Date specifying (A) the Distribution Date
upon
which the proposed final payment of the Applicable Certificates will be made
upon presentation and surrender of Applicable Certificates at the office or
agency of the Trustee therein specified, (B) the amount of any such proposed
final payment, and (C) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Applicable Certificates at the office or agency of the
Trustee therein specified. The Trustee shall give such notice to the Registrar
at the time such notice is given to Applicable Certificateholders. Upon
presentation and surrender of the Applicable Certificates in accordance with
such notice, the Trustee shall cause to be distributed to Applicable
Certificateholders such final payments.
In
the
event that all of the Applicable Certificateholders shall not surrender their
Applicable Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Trustee shall give a second
written notice to the remaining Applicable Certificateholders to surrender
their
Applicable Certificates for cancellation and receive the final distribution
with
respect thereto. No additional interest shall accrue on the Applicable
Certificates after the Distribution Date specified in the first written notice.
In the event that any money held by the Trustee for the payment of distributions
on the Applicable Certificates shall remain unclaimed for two years (or such
lesser time as the Trustee shall be satisfied, after sixty days' notice from
the
Company, is one month prior to the escheat period provided under applicable
law)
after the final distribution date with respect thereto, the Trustee shall pay
to
each Loan Trustee the appropriate amount of money relating to such Loan Trustee
and shall give written notice thereof to the Company.
(b)
The
provisions of this Section 7.01 supersede and replace the provisions of Section
11.01 of the Basic Agreement in its entirety, with respect to the Applicable
Trust.
MISCELLANEOUS
PROVISIONS
Section 8.01.
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.
Section
8.02. GOVERNING
LAW.
THE AGREEMENT AND, UNTIL THE TRANSFER DATE, THE APPLICABLE CERTIFICATES SHALL
BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
THIS SECTION 8.02 SUPERSEDES AND REPLACES SECTION 12.05 OF THE BASIC
AGREEMENT,
WITH RESPECT TO THE APPLICABLE TRUST.
Section
8.03. 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
8.04. 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.
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.
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| |
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| By: | ||
|
Name:
Title:
|
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|
WILMINGTON
TRUST COMPANY,
as Trustee |
||
| |
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| By: | ||
|
Name:
Title:
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||
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 2007-1B-O
Continental
Airlines Pass Through Certificate, Series 2007-1B-O
Issuance
Date: April 10, 2007
Final
Maturity Date: October 19, 2023
Evidencing
A Fractional Undivided Interest In The Continental Airlines Pass Through Trust
2007-1B-O, The Property Of Which Shall Include Certain Equipment Notes Each
Secured By An Aircraft Owned By Continental Airlines, Inc.
$[_____________]
Fractional Undivided Interest
representing
0.0004507550% 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
2007-1B-O (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.
supplemented
by Trust Supplement No. 2007-1B-O thereto, dated as of April 10, 2007 (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 "Continental Airlines Pass Through Certificates, Series 2007-1B-O"
(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 owned by 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 April 19 and October 19 of each year (a "Regular
Distribution Date")
commencing October 19, 2007, 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 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.
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.
Under
certain circumstances set forth in Section 7.01 of the Trust Supplement, all
of
the Trustee's right, title and interest to the Trust Property may be assigned,
transferred and delivered to the Related Trustee of the Related Trust pursuant
to the Assignment and Assumption Agreement. Upon the effectiveness of such
Assignment and Assumption Agreement (the "Transfer"),
the
Trust shall be terminated, the Certificateholders shall receive beneficial
interests
in
the
Related Trust in exchange for their interests in the Trust equal to their
respective beneficial interests in the Trust, the Certificates representing
Fractional Undivided Interests in the Trust shall be deemed for all purposes
of
the Agreement and the Related Pass Through Trust Agreement to be certificates
representing the same fractional undivided interests in the Related Trust and
its trust property. Each Certificateholder, by its acceptance of this
Certificate or a beneficial interest herein, agrees to be bound by the
Assignment and Assumption Agreement and subject to the terms of the Related
Pass
Through Trust Agreement as a Certificateholder thereunder. From and after the
Transfer, unless and to the extent the context otherwise requires, references
herein to the Trust, the Agreement and the Trustee shall constitute references
to the Related Trust, the Related Pass Through Trust Agreement and trustee
of
the Related Trust, respectively.
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 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 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 or hold 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, UNTIL THE TRANSFER, THIS CERTIFICATE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS. THE RELATED PASS THROUGH TRUST AGREEMENT AND, FROM
AND AFTER THE TRANSFER, THIS CERTIFICATE SHALL BE GOVERNED 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.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
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CONTINENTAL
AIRLINES PASS THROUGH TRUST 2007-1B-O
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|
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| 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
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| |
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|
| By: | ||
|
Name:
Title:
|
||
[DTC
Letter of Representations]
FORM
OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
Continental
Airlines Pass Through Trust 2007-1B-O
ASSIGNMENT
AND ASSUMPTION AGREEMENT (2007-1B-O), dated ________ __, ____ (the
"Assignment
Agreement"),
between Wilmington Trust Company, a Delaware banking corporation ("WTC"),
not
in its individual capacity except as expressly provided herein, but solely
as
trustee under the Pass Through Trust Agreement dated as of September 25, 1997
(as amended or modified from time to time, the "Basic
Agreement"),
as
supplemented by the Trust Supplement No. 2007-1B-O dated as of April 10, 2007
(the "Trust
Supplement"
and
together with the Basic Agreement, the "Agreement")
in
respect of the Continental Airlines Pass Through Trust 2007-1B-O (the
"Assignor"),
and
Wilmington Trust Company, a Delaware banking corporation, not in its individual
capacity except as expressly provided herein, but solely as trustee under the
Basic Agreement as supplemented by the Trust Supplement No. 2007-1B-S dated
as
of April 10, 2007 (the "New
Supplement",
and,
together with the Basic Agreement, the "New Agreement")
in
respect of the Continental Airlines Pass Through Trust 2007-1B-S (the
"Assignee").
W
I T N E
S S E T H:
WHEREAS,
the parties hereto desire to effect on the date hereof (the "Transfer
Date")
(a)
the transfer by the Assignor to the Assignee of all of the right, title and
interest of the Assignor in, under and with respect to, among other things,
the
Trust Property and each of the documents listed in Schedule I hereto (the
"Scheduled
Documents")
and
(b) the assumption by the Assignee of the obligations of the Assignor (i) under
the Scheduled Documents and (ii) in respect of the Applicable Certificates
issued under the Agreement; and
WHEREAS,
the Scheduled Documents permit such transfer upon satisfaction of certain
conditions heretofore or concurrently herewith being complied with;
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements herein contained, the parties hereto do hereby agree as follows
(capitalized terms used herein without definition having the meaning ascribed
thereto in the Agreement):
1. Assignment.
The
Assignor does hereby sell, assign, convey, transfer and set over unto the
Assignee as of the Transfer Date all of its present and future right, title
and
interest in, under and with respect to the Trust Property and the Scheduled
Documents and each other contract, agreement, document or instrument relating
to
the Trust Property or the Scheduled Documents (such other contracts, agreements,
documents or instruments, together with the Scheduled Documents, to be referred
to as the "Assigned
Documents"),
and
any proceeds therefrom, together with all documents and instruments evidencing
any of such right, title and interest.
2. Assumption.
The
Assignee hereby assumes for the benefit of the Assignor and each of the parties
listed in Schedule II hereto (collectively, the "Beneficiaries")
all of
the duties and obligations of the Assignor, whenever accrued, pursuant to the
Assigned Documents and hereby confirms that it shall be deemed a party to each
of the Assigned Documents to which the Assignor is a party and shall be bound
by
all the terms thereof (including the agreements and obligations of the Assignor
set forth therein) as if therein named as the Assignor. Further, the Assignee
hereby assumes for the benefit of the Assignor and the Beneficiaries all of
the
duties and obligations of the Assignor under the Outstanding Applicable
Certificates and hereby confirms that the Applicable Certificates representing
Fractional Undivided Interests under the Agreement shall be deemed for all
purposes of the Agreement and the New Agreement to be certificates representing
the same fractional undivided interests under the New Agreement equal to their
respective beneficial interests in the trust created under the
Agreement.
3. Effectiveness.
This
Assignment Agreement shall be effective upon the execution and delivery hereof
by the parties hereto, and each Applicable Certificateholder, by its acceptance
of its Applicable Certificate or a beneficial interest therein, agrees to be
bound by the terms of this Assignment Agreement.
4. Payments.
The
Assignor hereby covenants and agrees to pay over to the Assignee, if and when
received following the Transfer Date, any amounts (including any sums payable
as
interest in respect thereof) paid to or for the benefit of the Assignor that,
under Section 1 hereof, belong to the Assignee.
5. Further
Assurances.
The
Assignor shall, at any time and from time to time, upon the request of the
Assignee, promptly and duly execute and deliver any and all such further
instruments and documents and take such further action as the Assignee may
reasonably request to obtain the full benefits of this Assignment Agreement
and
of the rights and powers herein granted. The Assignor agrees to deliver any
Applicable Certificates, and all Trust Property, if any, then in the physical
possession of the Assignor, to the Assignee.
6. Representations
and Warranties.
(a) The
Assignee represents and warrants to the Assignor and each of the Beneficiaries
that:
(i) it
has
all requisite power and authority and legal right to enter into and carry out
the transactions contemplated hereby and to carry out and perform the
obligations of the "Pass Through Trustee" under the Assigned
Documents;
(ii) on
and as
of the date hereof, the representations and warranties of the Assignee set
forth
in Section 7.15 of the Basic Agreement and Section 5.04 of the New Supplement
are true and correct.
(b) The
Assignor represents and warrants to the Assignee that:
(i) it
is
duly incorporated, validly existing and in good standing under the laws of
the
State of Delaware and has the full trust power, authority and legal right under
the
laws
of the State of Delaware and the United States pertaining to its trust and
fiduciary powers to execute and deliver this Assignment Agreement;
(ii) the
execution and delivery by it of this Assignment Agreement and the performance
by
it of its obligations hereunder have been duly authorized by it and will not
violate its articles of association or by-laws or the provisions of any
indenture, mortgage, contract or other agreement to which it is a party or
by
which it is bound; and
(iii) this
Assignment Agreement constitutes the legal, valid and binding obligations of
it
enforceable against it in accordance with its terms, except as the same may
be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by general
principles of equity, whether considered in a proceeding at law or in
equity.
7. GOVERNING
LAW.
THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH
THE LAWS OF THE STATE OF NEW YORK INCLUDING MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE.
8. Counterparts.
This
Assignment Agreement may be executed in any number of counterparts, all of
which
together shall constitute a single instrument. It shall not be necessary that
any counterpart be signed by both parties so long as each party shall sign
at
least one counterpart.
9. Third
Party Beneficiaries.
The
Assignee hereby agrees, for the benefit of the Beneficiaries, that its
representations, warranties and covenants contained herein are also intended
to
be for the benefit of each Beneficiary, and each Beneficiary shall be deemed
to
be an express third party beneficiary with respect thereto, entitled to enforce
directly and in its own name any rights or claims it may have against such
party
as such beneficiary.
IN
WITNESS WHEREOF, the parties hereto, through their respective officers thereunto
duly authorized, have duly executed this Assignment Agreement as of the day
and
year first above written.
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ASSIGNOR:
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||
| |
|
WILMINGTON
TRUST
COMPANY, not in its individual capacity except as expressly provided
herein, but solely as trustee under the Pass Through Trust Agreement
and
Trust Supplement in respect of the Continental Airlines Pass Through
Trust
2007-1B-O
|
| By: | ||
| Title: | ||
|
ASSIGNEE:
|
||
| |
|
WILMINGTON
TRUST COMPANY, not in its individual capacity except as expressly
provided
herein, but solely as trustee under the Pass Through Trust
Agreement and
Trust Supplement in respect of the Continental Airlines Pass
Through Trust
2007-1B-S
|
| By: | ||
| Title: | ||
Schedule
I
Schedule
of Assigned Documents
(1) Intercreditor
Agreement dated as of April 10, 2007 among the Trustee, the Other Trustees,
the
Liquidity Provider, the liquidity provider relating to the Class A Certificates
and the Subordination Agent.
(2) Escrow
and Paying Agent Agreement (Class B) dated as of April 10, 2007 among the Escrow
Agent, the Underwriters, the Trustee and the Paying Agent.
(3) Note
Purchase Agreement dated as of April 10, 2007 among the Company, the Trustee,
the Other Trustees, the Depositary, the Escrow Agent, the Paying Agent and
the
Subordination Agent.
(4) Deposit
Agreement (Class B) dated as of April 10, 2007 between the Escrow Agent and
the
Depositary.
(5) Each
of
the Operative Agreements (as defined in the Participation Agreement for each
Aircraft) in effect as of the Transfer Date.
Schedule
II
Schedule
of Beneficiaries
Wilmington
Trust Company, not in its individual capacity but solely as Subordination
Agent
Wilmington
Trust Company, not in its individual capacity but solely as Paying
Agent
RZB
Finance LLC, as Liquidity Provider
Raiffeisen
Zentralbank Österreich Aktiengesellschaft, as Liquidity Guarantor
Credit
Suisse, New York Branch, as Depositary
Continental
Airlines, Inc.
Morgan
Stanley & Co. Incorporated, as Underwriter
Credit
Suisse Securities (USA) LLC, as Underwriter
Merrill
Lynch, Pierce, Fenner & Smith Incorporated,
as
Underwriter
Citigroup
Global Markets Inc.,
as
Underwriter
UBS
Securities LLC,
as
Underwriter
Calyon
Securities (USA) Inc.,
as
Underwriter
J.P.Morgan
Securities Inc.,
as
Underwriter
Wells
Fargo Bank Northwest, National Association, as Escrow Agent
Each
of
the other parties to the Assigned Documents
TRUST
SUPPLEMENT No. 2007-1B-S
Dated
as
of April 10, 2007
between
WILMINGTON
TRUST COMPANY
as
Trustee,
and
CONTINENTAL
AIRLINES, INC.
to
PASS
THROUGH TRUST AGREEMENT
Dated
as
of September 25, 1997
$221,850,000
Continental
Airlines Pass Through Trust 2007-1B-S
6.903%
Continental Airlines
Pass
Through Certificates,
Series
2007-1B-S
Page
This
Trust Supplement No. 2007-1B-S, dated as of April 10, 2007 (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 has obtained commitments from Boeing for the delivery of certain
Aircraft;
WHEREAS,
as of the Transfer Date (as defined below), the Company will have financed
the
acquisition of all or a portion of such Aircraft through separate secured
loan
transactions, under which the Company owns such Aircraft (collectively, the
"Owned
Aircraft");
WHEREAS,
as of the Transfer Date, in the case of each Owned Aircraft, the Company
will
have issued pursuant to an Indenture, on a recourse basis, Equipment Notes
to
finance a portion of the purchase price of such Owned Aircraft;
WHEREAS,
as of the Transfer Date, the Related Trustee will assign, transfer and deliver
all of such trustee's right, title and interest to the trust property held
by
the Related Trustee to the Trustee pursuant to the Assignment and Assumption
Agreement (as defined below);
WHEREAS,
the Trustee, effective only, but automatically, upon execution and delivery
of
the Assignment and Assumption Agreement, will be deemed to have declared
the
creation of the Continental Airlines Pass Through Trust 2007-1B-S (the
"Applicable
Trust")
for
the benefit of the Applicable Certificateholders, and each Holder of Applicable
Certificates outstanding as of the Transfer Date, as the grantors of the
Applicable Trust, by their respective acceptances of such Applicable
Certificates, will join in the creation of the Applicable Trust with the
Trustee;
WHEREAS,
all Applicable Certificates (as defined below) deemed 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 Applicable Certificates to which
an
Escrow Receipt (as defined below) has been affixed;
WHEREAS,
upon the execution and delivery of the Assignment and Assumption Agreement,
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;
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:
THE
CERTIFICATES
Section
1.01. The
Certificates.
The
Applicable Certificates shall be known as "Continental Airlines Pass Through
Certificates, Series 2007-1B-S". 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
initially deemed issued under the Agreement shall be equal to the aggregate
principal amount of "Outstanding" pass through certificates representing
fractional undivided interests in the Related Trust on the Transfer Date.
Subject to the preceding sentence and Section 5.01 of this Trust Supplement
and
except for Applicable Certificates authenticated and delivered under Sections
3.03, 3.04, 3.05 and 3.06 of the Basic Agreement, no Applicable Certificates
shall be authenticated under the Agreement.
(b) The
Regular Distribution Dates with respect to any payment of Scheduled Payments
means April 19 and October 19 of each year, commencing on October 19, 2007,
until payment of all of the Scheduled Payments to be made under the Equipment
Notes has been made.
(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 as Exhibit A to the
Related Pass Through Trust Supplement, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
by
the Related Pass Through Trust Agreement or the Agreement, as the case may
be,
or as the Trustee may deem appropriate, to reflect the fact that the Applicable
Certificates are being issued under the Agreement as opposed to under the
Related Pass Through Trust Agreement. 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
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 or
hold
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 as Exhibit B to the Related Pass Through
Trust
Supplement.
(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.
(k) The
"particular sections of the Note Purchase Agreement", for purposes of
clause (3) of Section 7.07 of the Basic Agreement, are Section 8.1 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.
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:
Means
the Basic Agreement, as supplemented by this Trust Supplement.
Aircraft:
Means
each of the New Aircraft or Substitute Aircraft in respect of which a
Participation Agreement is entered into in accordance with the NPA (or any
substitute aircraft, including engines therefor, owned by the Company and
securing one or more Equipment Notes).
Aircraft
Purchase Agreement:
Has the
meaning specified in the NPA.
Applicable
Certificate:
Means
any of the "Applicable Certificates" issued by the Related Trust and that
are
"Outstanding" (as defined in the Related Pass Through Trust Agreement) as
of the
Transfer Date (the "Transfer
Date Certificates")
and
any Certificate issued in exchange therefor or replacement thereof pursuant
to
the Agreement.
Applicable
Certificateholder:
Means
the Person in whose name an Applicable Certificate is registered on the Register
for the Applicable Certificates.
Applicable
Trust:
Has the
meaning specified in the recitals hereto.
Assignment
and Assumption Agreement:
Means
the assignment and assumption agreement substantially in the form of Exhibit
C
to the Related Pass Through Trust Supplement executed and delivered in
accordance with Section 7.01 of the Related Trust Supplement.
Basic
Agreement:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Boeing:
Means
The Boeing Company.
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 Applicable 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.
Certificate:
Has the
meaning specified in the Intercreditor Agreement.
Certificate
Buyout Event:
Means
that a Continental Bankruptcy Event has occurred and is continuing and the
following events have occurred: (A) (i) the 60-day period specified in Section
1110(a)(2)(A) of the U.S. Bankruptcy Code (the “60-Day Period”) has expired and
(ii) Continental has not entered into one or more agreements under Section
1110(a)(2)(A) of the U.S. Bankruptcy Code to perform all of its obligations
under all of the Indentures or, if it has entered into such agreements, has
at
any time thereafter failed to cure any default under any of the Indentures
in
accordance with Section 1110(a)(2)(B) of the Bankruptcy Code; or (B) if prior
to
the expiry of the 60-Day Period, Continental shall have abandoned any
Aircraft.
Class:
Has the
meaning specified in the Intercreditor Agreement.
Company:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Continental
Bankruptcy Event:
Has the
meaning specified in the Intercreditor Agreement.
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:
Has the
meaning specified in the Related Pass Through Trust Supplement.
Deposit
Agreement:
Means
the Deposit Agreement dated as of April 10, 2007, 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
Credit Suisse, a banking institution organized under the laws of Switzerland,
acting through its New York branch.
Deposits:
Has the
meaning specified in the Deposit Agreement.
Distribution
Date:
Means
any Regular Distribution Date or Special Distribution Date as the context
requires.
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 April 10, 2007 relating
to the
Applicable Certificates, among the Escrow Agent, the Escrow Paying Agent,
the
Related Trustee (and after the Transfer Date, the Trustee) and the Underwriters,
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.
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
19, 2023.
Final
Withdrawal:
Has the
meaning specified in the Escrow Agreement.
Final
Withdrawal Date:
Has the
meaning specified in the Escrow Agreement.
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 dated as of April 10, 2007 among the Related
Trustee
(and after the Transfer Date, the Trustee), the Related Other Trustees (and
after the Transfer Date, the Other Trustees), the Liquidity Provider, the
liquidity provider relating to the Class A Certificates 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 Underwriters, together with all subsequent beneficial owners of the
Applicable Certificates.
Liquidity
Facility:
Means,
initially, the Revolving Credit Agreement dated as of April 10, 2007 relating
to
the Applicable Certificates, between the Liquidity Provider 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, in
each
case as amended, supplemented or otherwise modified from time to time in
accordance with their respective terms.
Liquidity
Provider:
Means,
initially, RZB Finance LLC, a limited liability company duly established
under
the laws of Delaware, and any replacements or successors therefor appointed
in
accordance with the Intercreditor Agreement.
New
Aircraft:
Has the
meaning specified in the NPA.
Note
Documents:
Means
the Equipment Notes with respect to the Applicable Certificates and, with
respect to any such Equipment Note, the Indenture and the Participation
Agreement relating to such Equipment Note.
NPA:
Means
the Note Purchase Agreement dated as of April 10, 2007 among the Related
Trustee
(and after the Transfer Date, the Trustee), the Related Other Trustees (and
after the Transfer Date, the Other Trustees), the Company, the Escrow Agent,
the
Escrow Paying Agent and the Subordination Agent, as the same may be amended,
supplemented or otherwise modified from time to time, in accordance with
its
terms.
Other
Agreements:
Means
(i) the Basic Agreement as supplemented by Trust Supplement
No. 2007-1A-S dated as of the date hereof relating to Continental Airlines
Pass Through Trust 2007-1A-S, (ii) the Basic Agreement as supplemented by
Trust Supplement No. 2007-1C-S dated as of the date hereof relating to
Continental Airlines Pass Through Trust 2007-1C-S, (iii) the Basic Agreement
as
supplemented by a Trust Supplement relating to any Additional Trust and (iv)
the
Basic Agreement as supplemented by a Trust Supplement relating to any
Refinancing Trust.
Other
Trustees:
Means
the trustees under the Other Agreements, and any successor or other trustee
appointed as provided therein.
Other
Trusts:
Means
the Continental Airlines Pass Through Trust 2007-1A-S, the Continental Airlines
Pass Through Trust 2007-1C-S, an Additional Trust or Trusts, if any, and
a
Refinancing Trust or Trusts, if any, created by the Other
Agreements.
Outstanding:
When
used with respect to Applicable Certificates, means, as of the date of
determination, all Transfer Date Certificates, and all other Applicable
Certificates theretofore authenticated and delivered under the Agreement,
in
each case except:
(i) Applicable
Certificates theretofore canceled by the Registrar or delivered to the Trustee
or the Registrar for cancellation;
(ii) Applicable
Certificates for which money in the full amount required to make the final
distribution with respect to such Applicable Certificates pursuant to Section
11.01 of the Basic Agreement has been theretofore deposited with the Trustee
in
trust for the Applicable Certificateholders as provided in Section 4.01 of
the
Basic Agreement pending distribution of such money to such Applicable
Certificateholders pursuant to payment of such final distribution;
and
(iii)
Applicable
Certificates in exchange for or in lieu of which other Applicable Certificates
have been authenticated and delivered pursuant to the Agreement.
Owned
Aircraft:
Has the
meaning specified in the third recital to this Trust
Supplement.
Participation
Agreement:
Means
each Participation Agreement entered into by the Related Trustee pursuant
to the
NPA, as the same may be amended, supplemented or otherwise modified in
accordance with its terms.
Pool
Balance:
Means,
as of any date, (i) the original aggregate face amount of the "Applicable
Certificates" as defined in the Related Pass Through Trust Agreement, less
(ii) the aggregate amount of all payments made as of such date in respect
of such Certificates, the Applicable Certificates (as defined in the Related
Pass Through Trust Agreement) or the Deposits, other than payments made in
respect of interest or premium thereon or reimbursement of any costs or expenses
incurred in connec-tion therewith. The Pool Balance as of any 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" as defined in the Related Pass Through
Trust Agreement. 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 payment with respect to other
Trust Property and the distribution thereof to be made on that date.
Prospectus
Supplement:
Means
the final Prospectus Supplement dated March 27, 2007 relating to the offering
of
the Applicable Certificates, the Class A and the Class C
Certificates.
Ratings
Confirmation:
Has the
meaning specified in the Intercreditor Agreement.
Related
Other Pass Through Trust Agreements:
Means
the "Other Agreements" as defined in the Related Pass Through Trust Agreement.
Related
Other Trustees:
Means
the "Other Trustees" as defined in the Related Pass Through Trust
Agreement.
Related
Other Trusts:
Means
the "Other Trusts" as defined in the Related Pass Through Trust Agreement.
Related
Pass Through Trust Agreement:
Means
the Basic Agreement as supplemented by the Trust Supplement No. 2007-1B-O
dated
as of the date hereof (the "Related
Pass Through Trust Supplement"),
relating to the Continental Airlines Pass Through Trust 2007-1B-O and entered
into by the Company and the Related Trustee, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Related
Trust:
Means
the Continental Pass Through Trust 2007-1B-O, formed under the Related Pass
Through Trust Agreement.
Related
Trustee:
Means
the trustee under the Related Pass Through Trust Agreement.
Scheduled
Payment:
Means,
with respect to any Equipment Note, (i) any payment of principal or interest
on
such Equipment Note (other than any such payment which is not in fact received
by the Trustee or any Subordination Agent within five days of the date on
which
such payment is scheduled to be made) or (ii) any payment of interest on
the
Applicable Certificates with funds drawn under the Liquidity Facility, which
payment in any such case represents the installment of principal on such
Equipment Note at the stated maturity of such installment, the payment of
regularly scheduled interest accrued on the unpaid principal amount of such
Equipment Note, or both; provided,
however,
that
any payment of principal, premium, if any, or interest resulting from the
redemption or purchase of any Equipment Note shall not constitute a Scheduled
Payment.
Special
Payment:
Means
any payment (other than a Scheduled Payment) in respect of, or any proceeds
of,
any Equipment Note or Collateral (as defined in each Indenture).
Substitute
Aircraft:
Has the
meaning specified in the NPA.
Transfer
Date:
Means
the moment of execution and delivery of the Assignment and Assumption Agreement
by each of the parties thereto.
Transfer
Date Certificates:
Has the
meaning specified in the definition of "Applicable Certificates".
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 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 will not
constitute Trust Property.
Trust
Supplement:
Has the
meaning specified in the first paragraph of this trust supplement.
Trustee:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Underwriters:
Means,
collectively, Morgan Stanley & Co. Incorporated, Credit Suisse Securities
(USA) LLC, Merrill
Lynch, Pierce, Fenner & Smith Incorporated,
Citigroup
Global Markets Inc., UBS Securities LLC, Calyon Securities (USA) Inc. and
J.P.Morgan Securities Inc.
Underwriting
Agreement:
Means
the Underwriting Agreement dated March 27, 2007 among the Underwriters, the
Company and the Depositary, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
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, including any portion thereof paid by the Liquidity
Provider;
(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;
(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 or its nominee, on the Record Date prior to each Distribution Date,
the
Trustee will request that such Clearing Agency post on its Internet bulletin
board 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 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 U.S. 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) If
the
aggregate principal payments scheduled for a Regular Distribution Date prior
to
the Delivery Period Termination Date differ from the amount thereof set forth
for the Applicable Certificates on page S-33 of the Prospectus Supplement,
by no later than the 15th
day
prior to such Regular Distribution Date, the Trustee (if the Related Trustee
has
not already done so) shall mail written notice of the actual amount of such
scheduled payments to the Applicable Certificateholders of record as of a
date
within 15 Business Days prior to the date of mailing.
(d) 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
page S-33 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 (if the Related Trustee has not already
done so) 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 Transfer
Date,
the Trustee (if the Related Trustee has not already done so) 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" (as defined in the Related
Pass Through Trust Agreement) on the Delivery Period Termination Date. The
Trustee (if the Related Trustee has not already done so) 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.
(e) The
Trustee shall provide promptly to the Applicable Certificateholders all material
non-confidential information received by the Trustee from the
Company.
(f)
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 7.01 of this Trust Supplement 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 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 7.01 of this Trust Supplement),
(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.
Section
3.04. Limitation
of Liability for Payments.
Section
3.09 of the Basic Agreement shall be amended, with respect to the Applicable
Trust, by deleting the phrase "the Owner Trustees or the Owner Participants"
in
the second sentence thereof and adding in lieu thereof "the Liquidity
Provider".
DEFAULT
Section
4.01.
Purchase Rights of Certificateholders.
(a) At
any time after the occurrence and during the continuation of a Certificate
Buyout Event, each Applicable Certificateholder (other than the Company or
any
of its Affiliates) shall have the right to purchase, for the purchase price
set
forth in the Class A Trust Agreement, all, but not less than all, of the
Class A
Certificates upon 15 days' written notice to the Class A Trustee and each
other
Applicable Certificateholder, on the third Business Day next following the
expiry of such 15-day notice period, provided
that (A)
if prior to the end of such 15-day period any other Applicable Certificateholder
(other than the Company or any of its Affiliates) notifies such purchasing
Applicable Certificateholder that such other Applicable Certificateholder
wants
to participate in such purchase, then such other Applicable Certificateholder
(other than the Company or any of its Affiliates) may join with the purchasing
Applicable Certificateholder to purchase all, but not less than all, of the
Class A Certificates pro rata based on the Fractional Undivided Interest
in the
Applicable Trust held by each such Applicable Certificateholder and (B) if
prior
to the end of such 15-day period any other Applicable Certificateholder fails
to
notify the purchasing Applicable Certificateholder of such other Applicable
Certificateholder's desire to participate in such a purchase, then such other
Applicable Certificateholder shall lose its right to purchase the Class A
Certificates pursuant to this Section 4.01(a);
(b) By
acceptance of its Applicable Certificate, each Applicable Certificateholder
agrees that that at any time after the occurrence and during the continuation
of
a Certificate Buyout Event:
(i) each
Class C Certificateholder (other than the Company or any of its Affiliates)
shall have the right (which shall not expire upon any purchase of the Class
A
Certificates pursuant to clause (a) above) to purchase all, but not less
than
all, of the Class A Certificates and the Applicable Certificates upon 15
days'
written notice to the Trustee, the Class A Trustee and each other Class C
Certificateholder, on the third Business Day next following the expiry of
such
15-day notice period, provided that (A) if prior to the end of such 15-day
period any other Class C Certificateholder (other than the Company or any
of its
Affiliates) notifies such purchasing Class C Certificateholder that such
other
Class C Certificateholder wants to participate in such purchase, then such
other
Class C Certificateholder (other than the Company or any of its Affiliates)
may
join with the purchasing Class C Certificateholder to purchase all, but not
less
than all, of the Class A Certificates and the Applicable Certificates pro
rata
based on the Fractional Undivided Interest in the Class C Trust held by each
such Class C Certificateholder and (B) if prior to the end of such 15-day
period
any other Class C Certificateholder fails to notify the purchasing Class
C
Certificateholder of such other Class C Certificateholder's desire to
participate in such a purchase, then such other Class C Certificateholder
shall lose its right to purchase the Class A Certificates and the Applicable
Certificates pursuant to this Section 4.01(b)(i);
(ii) if
any
Additional Certificates are issued pursuant to one or more Additional Trusts,
each Additional Certificateholder (other than the Company or any of its
Affiliates),
shall
have the right (which shall not expire upon any purchase of the Applicable
Certificates pursuant to clauses (a) or (b)(i) above) to purchase all, but
not
less than all, of the Class A Certificates, the Applicable Certificates,
the
Class C Certificates and any Additional Certificates ranked senior to the
Additional Certificates held by the purchasing Additional Certificateholders
upon 15 days' written notice to the Trustee, the Class A Trustee, the Class
C
Trustee, any Additional Trustee with respect to Additional Certificates that
rank senior to the Additional Certificates held by the purchasing Additional
Certificateholders and each other Additional Certificateholder of the same
Class, on the third Business Day next following the expiry of such 15-day
notice
period, provided
that (A)
if prior to the end of such 15-day period any other Additional Certificateholder
of such Class (other than the Company or any of its Affiliates) notifies
such
purchasing Additional Certificateholder that such other Additional
Certificateholder wants to participate in such purchase, then such other
Additional Certificateholder (other than the Company or any of its Affiliates)
may join with the purchasing Additional Certificateholder to purchase all,
but
not less than all, of the Class A Certificates, the Applicable Certificates,
the
Class C Certificates and such senior Additional Certificates pro rata based
on
the Fractional Undivided Interest in the applicable Additional Trust held
by
each such Additional Certificateholder and (B) if prior to the end of such
15-day period any other Additional Certificateholder of such Class fails
to
notify the purchasing Additional Certificateholder of such other Additional
Certificateholder's desire to participate in such a purchase, then such other
Additional Certificateholder shall lose its right to purchase the Class A
Certificates, the Applicable Certificates, the Class C Certificates and
such senior Additional Certificates pursuant to this Section
4.01(b)(ii).
(iii) if
any
Refinancing Certificates are issued, each Refinancing Certificateholder shall
have the same right (subject to the same terms and conditions) to purchase
Certificates pursuant to this Section 4.01(b) (and to receive notice in
connection therewith) as the Certificateholders of the Class that such
Refinancing Certificates refinanced.
The
purchase price with respect to the Applicable Certificates shall be equal
to the
Pool Balance of the Applicable Certificates, together with accrued and unpaid
interest thereon to the date of such purchase, without premium, but including
any other amounts then due and payable to the Applicable Certificateholders
under the Agreement, the Intercreditor Agreement, the Escrow Agreement or
any
Note Document or on or in respect of the Applicable Certificates; provided,
however,
that no
such purchase of Applicable Certificates shall be effective unless the
purchaser(s) shall certify to the Trustee that contemporaneously with such
purchase, such purchaser(s) is (are) purchasing, pursuant to the terms of
the
Agreement and the Other Agreements, (A) in the case of any purchase of the
Applicable Certificates pursuant to clause (i) above, all of the Applicable
Certificates and the Class A Certificates, or (B) in all other cases,
the Applicable Certificates, the Class A Certificates, the Class C Certificates
and, if applicable, the Additional Certificates that are senior to the
securities held by such purchaser(s). Each payment of the purchase price
of the
Applicable Certificates referred to in the first sentence hereof shall be
made
to an account or accounts designated by the Trustee and each such purchase
shall
be subject to the terms of this Section 4.01. Each Applicable Certificateholder
agrees by its acceptance of its Applicable Certificate that (at any time
after
the occurrence of a Certificate
Buyout
Event) it will, upon payment from Class C Certificateholder(s), Additional
Certificateholder(s) or Refinancing Certificateholders, as the case may be,
of
the purchase price set forth in the first sentence of this paragraph,
(i) forthwith sell, assign, transfer and convey to the purchaser(s) thereof
(without recourse, representation or warranty of any kind except for its
own
acts), all of the right, title, interest and obligation of such Applicable
Certificateholder in the Agreement, the Escrow Agreement, the Deposit Agreement,
the Intercreditor Agreement, the Liquidity Facility, the NPA, the Note Documents
and all Applicable Certificates and Escrow Receipts held by such Applicable
Certificateholder (excluding all right, title and interest under any of the
foregoing to the extent such right, title or interest is with respect to
an
obligation not then due and payable as respects any action or inaction or
state
of affairs occurring prior to such sale) (and the purchaser shall assume
all of
such Applicable Certificateholder's obligations under the Agreement, the
Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity
Facility, the NPA, the Note Documents and all such Applicable Certificates
and
Escrow Receipts), (ii) if such purchase occurs after a record date
specified in Section 2.03 of the Escrow Agreement relating to the
distribution of unused Deposits and/or accrued and unpaid interest on Deposits
and prior to or on the related distribution date thereunder, forthwith turn
over
to the purchaser(s) of its Applicable Certificate all amounts, if any, received
by it on account of such distribution, and (iii) if such purchase occurs
after a Record Date relating to any distribution and prior to or on the related
Distribution Date, forthwith turn over to the purchaser(s) of its Applicable
Certificate all amounts, if any, received by it on account of such distribution.
The Applicable Certificates will be deemed to be purchased on the date payment
of the purchase price is made notwithstanding the failure of the Applicable
Certificateholders to deliver any Applicable Certificates and, upon such
a
purchase, (I) the only rights of the Applicable Certificateholders will be
to
deliver the Applicable Certificates to the purchaser(s) and receive the purchase
price for such Applicable Certificates and (II) if the purchaser(s) shall
so
request, such Applicable Certificateholder will comply with all the provisions
of Section 3.04 of the Basic Agreement to enable new Applicable Certificates
to
be issued to the purchaser in such denominations as it shall request. All
charges and expenses in connection with the issuance of any such new Applicable
Certificates shall be borne by the purchaser thereof.
As
used
in this Section 4.01 and elsewhere in this Trust Supplement, the terms
"Additional Certificate", "Additional Certificateholder", "Additional Equipment
Notes", "Additional Trust", "Additional Trust Agreement", "Additional Trustee",
"Class A Certificate", "Class A Certificateholder", "Class A Trust", "Class
A
Trust Agreement", "Class A Trustee", "Class C Certificate", "Class C
Certificateholder", "Class C Trust", "Class C Trust Agreement", "Class C
Trustee", "Refinancing Certificates", "Refinancing Certificateholder",
"Refinancing Equipment Notes" and "Refinancing Trust" shall have the respective
meanings assigned to such terms in the Intercreditor Agreement.
(c) This
Section 4.01 supersedes and replaces Section 6.01(b) of the Basic Agreement,
with respect to the Applicable Trust.
Section
4.02. 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.
THE
TRUSTEE
Section
5.01.
Acquisition of Trust Property.
(a) The
Trustee is hereby irrevocably authorized and directed to execute and deliver
the
Assignment and Assumption Agreement on the date specified in Section 7.01
of the
Related Pass Through Trust Supplement, subject only to the satisfaction of
the
conditions set forth in said Section 7.01. The Agreement (except only for
this
sentence and the immediately preceding sentence hereof, which are effective
upon
execution and delivery hereof) shall become effective upon the execution
and
delivery of the Assignment and Assumption Agreement by the Trustee and the
Related Trustee, automatically and without any further signature or action
on
the part of the Company and the Trustee, and shall thereupon constitute the
legal, valid and binding obligation of the parties hereto enforceable against
each of the parties hereto in accordance with its terms. Upon such execution
and
delivery of the Assignment and Assumption Agreement, the Related Trust shall
be
terminated, the Applicable Certificateholders shall receive beneficial interests
in the Applicable Trust in exchange for their interests in the Related Trust
equal to their respective beneficial interests in the Related Trust and the
"Outstanding" (as defined in the Related Pass Through Trust Agreement) pass
through certificates representing fractional undivided interests in the Related
Trust shall be deemed for all purposes of the Agreement, without further
signature or action of any party or Certificateholder, to be Certificates
representing the same Fractional Undivided Interests in the Trust and Trust
Property. By acceptance of its Applicable Certificate, each Applicable
Certificateholder consents to and ratifies such assignment, transfer and
delivery of the trust property of the Related Trust to the Trustee upon the
execution and delivery of the Assignment and Assumption Agreement. The
provisions of this Section 5.01(a) 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 or Section
2.02 of the Basic Agreement shall not apply to the Applicable
Trust.
(b) The
Trustee, upon the execution and delivery of the Assignment and Assumption
Agreement, acknowledges its acceptance of all right, title and interest in
and
to the Trust Property and declares that the Trustee holds and will hold such
right, title and interest for the benefit of all then present and future
Applicable Certificateholders, upon the trusts herein and in the Basic Agreement
set forth. By the acceptance of each Applicable Certificate issued to it
under
the Related Pass Through Trust Agreement and deemed issued under the Agreement,
each Holder of any such Applicable Certificate as grantor of the Applicable
Trust thereby joins in the creation and declaration of the Applicable Trust.
The
provisions of this Section 5.01(b) supersede and replace the provisions of
Section 2.03 of the Basic Agreement, with respect to the Applicable
Trust.
Section
5.02. [Intentionally
Omitted]
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, on the Transfer Date, that:
(a) the
Trustee has full power, authority and legal right to receive the Trust Property
assigned by the Related Trustee, assume the obligations under, and perform,
the
Assignment and Assumption Agreement, this Trust Supplement, the Intercreditor
Agreement, the Escrow Agreement, the NPA and the Note Documents to which
it is a
party and has taken all necessary action to authorize such receipt, assumption
and performance by it of this Trust Supplement, the Intercreditor Agreement,
the
Escrow Agreement, the NPA and the Note Documents to which it is a
party;
(b) the
receipt of the Trust Property under the Assignment and Assumption Agreement
and
the performance by the Trustee of the Assignment and Assumption Agreement,
this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the
NPA and
the Note Documents to which it is 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
receipt of the Trust Property under the Assignment and Assumption Agreement
and
the performance by the Trustee of the Assignment and Assumption Agreement,
this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the
NPA and
the Note Documents to which it is 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) the
Assignment and Assumption Agreement has been duly executed and delivered
by the
Trustee and this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement, the NPA and the Note Documents to which it is 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.
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, (i) 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", (ii) enter into
one or
more agreements supplemental to the Agreement, the Intercreditor Agreement
or
the NPA to provide for the formation of one or more Additional Trusts, the
issuance of Additional Certificates, the purchase by any Additional Trust
of
applicable Additional Equipment Notes and other matters incidental thereto
or
otherwise contemplated by Section 2.01(b) of the Basic Agreement, subject
to the
provisions of Section 4(a)(vi) of the NPA and Section 9.1 of the Intercreditor
Agreement, and (iii) enter into one or more agreements supplemental to the
Agreement to provide for the formation of one or more Refinancing Trusts,
the
issuance of Refinancing Certificates, the purchase by any Refinancing Trust
of
applicable Refinancing Equipment Notes and other matters incidental thereto
or
as otherwise contemplated by Section 2.01(b) of the Basic Agreement, subject
to
the provisions of Section 4(a)(vi) of the NPA and Section 9.1(c) of the
Intercreditor 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, the Liquidity
Facility or the NPA or modifying in any manner the rights and obligations
of the
Applicable Certificateholders under the Escrow Agreement, the Deposit Agreement,
the Liquidity Facility 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.
Section
6.04. Consent
of Holders of Certificates Issued under Other Trusts.
Notwithstanding any provision in Section 6.02 or Section 6.03 of this Trust
Supplement to the contrary, no amendment or modification of Section 4.01
of this
Trust Supplement shall be effective unless the trustee for each Class of
Certificates affected by such amendment or modification shall have consented
thereto.
TERMINATION
OF TRUST
Section
7.01. Termination
of the Applicable Trust.
(a) The respective obligations and responsibilities of the Company
and the Trustee with respect to the Applicable Trust shall terminate upon
the
distribution to all Applicable Certificateholders and the Trustee 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; provided,
however,
that in
no event shall the Applicable Trust continue beyond one hundred ten (110)
years
following the date of the execution of this Trust Supplement.
Notice
of
any termination, specifying the Distribution Date upon which the Applicable
Certificateholders may surrender their Applicable Certificates to the Trustee
for payment of the final distribution and cancellation, shall be mailed promptly
by the Trustee to Applicable Certificateholders not earlier than the
60th
day and
not later than the 15th
day next
preceding such final Distribution Date specifying (A) the Distribution Date
upon
which the proposed final payment of the Applicable Certificates will be made
upon presentation and surrender of Applicable Certificates at the office
or
agency of the Trustee therein specified, (B) the amount of any such
proposed final payment, and (C) that the Record Date otherwise applicable
to
such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Applicable Certificates at the office or
agency of the Trustee therein specified. The Trustee shall give such notice
to
the Registrar at the time such notice is given to Applicable Certificateholders.
Upon presentation and surrender of the Applicable Certificates in accordance
with such notice, the Trustee shall cause to be distributed to Applicable
Certificateholders such final payments.
In
the
event that all of the Applicable Certificateholders shall not surrender their
Applicable Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Trustee shall give a
second
written notice to the remaining Applicable Certificateholders to surrender
their
Applicable Certificates for cancellation and receive the final distribution
with
respect thereto. No additional interest shall accrue on the Applicable
Certificates after the Distribution Date specified in the first written notice.
In the event that any money held by the Trustee for the payment of distributions
on the Applicable Certificates shall remain unclaimed for two years (or such
lesser time as the Trustee shall be satisfied, after sixty days' notice from
the
Company, is one month prior to the escheat period provided under applicable
law)
after the final distribution date with respect thereto, the Trustee shall
pay to
each Loan Trustee the appropriate amount of money relating to such Loan Trustee
and shall give written notice thereof to the Company.
(b) The
provisions of this Section 7.01 supersede and replace the provisions of Section
11.01 of the Basic Agreement in its entirety, with respect to the Applicable
Trust.
MISCELLANEOUS
PROVISIONS
Section 8.01.
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.
Section
8.02. GOVERNING
LAW.
THE AGREEMENT AND THE APPLICABLE CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THIS SECTION
8.02
SUPERSEDES AND REPLACES SECTION 12.05 OF THE BASIC
AGREEMENT,
WITH RESPECT TO THE APPLICABLE TRUST.
Section
8.03. 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
8.04.
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.
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.
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By
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Name:
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|
Title:
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WILMINGTON
TRUST COMPANY,
as Trustee
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By
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Name:
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Title:
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23
TRUST
SUPPLEMENT No. 2007-1C-O
Dated
as
of April 10, 2007
between
WILMINGTON
TRUST COMPANY
as
Trustee,
and
CONTINENTAL
AIRLINES, INC.
to
PASS
THROUGH TRUST AGREEMENT
Dated
as
of September 25, 1997
$168,198,000
Continental
Airlines Pass Through Trust 2007-1C-O
7.339%
Continental Airlines
Pass
Through Certificates,
Series
2007-1C-O
Page
Exhibit
A - Form
of Certificate
Exhibit
B - DTC
Letter of Representations
Exhibit
C - Form
of Assignment and Assumption
Agreement
i
This
Trust Supplement No. 2007-1C-O, dated as of April 10, 2007 (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
;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 has obtained commitments from Boeing for the delivery of certain
Aircraft;
WHEREAS,
the Company intends to finance the acquisition of each such Aircraft through
separate secured loan transactions, under which the Company will own such
Aircraft (collectively, the "Owned
Aircraft");
WHEREAS,
in the case of each Owned Aircraft, the Company will issue pursuant to an
Indenture, on a recourse basis, Equipment Notes to finance a portion of the
purchase price of such Owned Aircraft;
WHEREAS,
the Trustee hereby declares the creation of the Continental Airlines Pass
Through Trust 2007-1C-O (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 Underwriters have contemporaneously herewith entered
into an Escrow Agreement with the Escrow Paying Agent pursuant to which the
Underwriters have delivered to the Escrow Agent the proceeds from the sale
of
the Applicable Certificates, 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 delivered by
Boeing under the Aircraft Purchase Agreement 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;
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, 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;
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:
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 "Continental Airlines Pass Through Certificates,
Series 2007-1C-O" (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 under Sections 3.03, 3.04, 3.05 and 3.06 of the
Basic Agreement) is $168,198,000.
(b) The
Regular Distribution Dates with respect to any payment of Scheduled Payments
means April 19 and October 19 of each year, commencing on October 19, 2007,
until payment of all of the Scheduled Payments to be made under the Equipment
Notes has been made.
(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 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 or hold 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 not entitled to the benefits of a 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.
(k) The
"particular sections of the Note Purchase Agreement", for purposes of clause
(3)
of Section 7.07 of the Basic Agreement, are Section 8.1 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 New Aircraft 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,
owned by the Company and securing one or more Equipment Notes).
Aircraft
Purchase Agreement:
Has the
meaning specified 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
Delivery 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.
Assignment
and Assumption Agreement:
Means
the assignment and assumption agreement substantially in the form of Exhibit
C
hereto executed and delivered in accordance with Section 7.01 of this Trust
Supplement.
Basic
Agreement:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Boeing:
Means
The Boeing Company.
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 Applicable 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.
Certificate:
Has the
meaning specified in the Intercreditor Agreement.
Certificate
Buyout Event:
Means
that a Continental Bankruptcy Event has occurred and is continuing and the
following events have occurred: (A) (i) the 60-day period specified in Section
1110(a)(2)(A) of the U.S. Bankruptcy Code (the “60-Day Period”) has expired and
(ii) Continental has not entered into one or more agreements under Section
1110(a)(2)(A) of the U.S. Bankruptcy Code to perform all of its obligations
under all of the Indentures or, if it has entered into such agreements, has
at
any time thereafter failed to cure any default under any of the Indentures
in
accordance with Section 1110(a)(2)(B) of the Bankruptcy Code; or (B) if prior
to
the expiry of the 60-Day Period, Continental shall have abandoned any
Aircraft.
Class:
Has the
meaning specified in the Intercreditor Agreement.
Company:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Continental
Bankruptcy Event:
Has the
meaning specified in the Intercreditor Agreement.
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) June 30, 2009, or, if the Equipment Notes relating to
all of the New Aircraft (or Substitute Aircraft in lieu thereof) have not been
purchased by the Applicable Trust and the Other Trusts 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, September 30, 2009 (provided
that, if
a labor strike occurs at Boeing on or prior to either or both of such dates
referred to in this clause (a), such date or dates on or following the
commencement of such strike shall be extended by adding thereto the number
of
days that such strike continued in effect), and (b) the date on which Equipment
Notes issued with respect to all of the New Aircraft (or Substitute Aircraft
in
lieu thereof) have been purchased by the Applicable Trust and the Other Trusts
in accordance with the NPA.
Deposit
Agreement:
Means
the Deposit Agreement dated as of April 10, 2007 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
Credit Suisse, a banking institution organized under the laws of Switzerland,
acting through its New York branch.
Deposits:
Has the
meaning specified in the Deposit Agreement.
Distribution
Date:
Means
any Regular Distribution Date or Special Distribution Date as the context
requires.
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 April 10, 2007 relating to
the
Applicable Certificates, among the Escrow Agent, the Escrow Paying Agent, the
Trustee and Underwriters, 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.
Escrow
Receipt:
Means
the receipt substantially in the form annexed to the Escrow Agreement
representing a fractional and undivided interest in the funds held in escrow
thereunder.
Final
Maturity Date:
Means
April
19,
2014.
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 dated as of April 10, 2007 among the Trustee, the
Other Trustees, 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 Underwriters, together with all subsequent beneficial owners of the
Applicable Certificates.
Liquidity
Provider:
Means,
initially, RZB Finance LLC, as liquidity provider under the Class A Liquidity
Facility and Class B Liquidity Facility (as such terms are defined in the
Intercreditor Agreement), and any replacements or successors thereof appointed
in accordance with the Intercreditor Agreement.
New
Aircraft:
Has the
meaning specified in the NPA.
Note
Documents:
Means
the Equipment Notes with respect to the Applicable Certificates and, with
respect to any such Equipment Note, the Indenture and the Participation
Agreement relating to such Equipment Note.
Notice
of Purchase Withdrawal:
Has the
meaning specified in the Deposit Agreement.
NPA:
Means
the Note Purchase Agreement dated as of April 10, 2007 among the Trustee, the
Other Trustees, 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.
Other
Agreements:
Means
(i) the Basic Agreement as supplemented by Trust Supplement
No. 2007-1A-O dated as of the date hereof relating to Continental Airlines
Pass Through Trust 2007-1A-O, (ii) the Basic Agreement as supplemented by
Trust Supplement No. 2007-1B-O dated as of the date hereof relating to
Continental Airlines Pass Through Trust 2007-1B-O, (iii) the Basic Agreement
as
supplemented by a Trust Supplement relating to any Additional Trust and (iv)
the
Basic Agreement as supplemented by a Trust Supplement relating to any
Refinancing Trust.
Other
Trustees:
Means
the trustees under the Other Agreements, and any successor or other trustee
appointed as provided therein.
Other
Trusts:
Means
the Continental Airlines Pass Through Trust 2007-1A-O, the Continental Airlines
Pass Through Trust 2007-1B-O, an Additional Trust or Trusts, if any, and a
Refinancing Trust or Trusts, if any, created by the Other
Agreements.
Owned
Aircraft:
Has the
meaning specified in the third recital to this Trust Supplement.
Participation
Agreement:
Means
each Participation Agreement to be entered into, or entered into (as the case
may be), by the Trustee pursuant to the NPA, as the same may be amended,
supplemented or otherwise modified 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 as of such
date
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
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
payment with respect to other Trust Property and the distribution thereof to
be
made on that date.
Prospectus
Supplement:
Means
the final Prospectus Supplement dated March 27, 2007 relating to the offering
of
the Applicable Certificates, the Class A and the Class B
Certificates.
Ratings
Confirmation:
Has the
meaning specified in the Intercreditor Agreement.
Related
Pass Through Trust Agreement:
Means
the Basic Agreement as supplemented by the Trust Supplement No. 2007-1C-S dated
as of the date hereof relating to the Continental Airlines Pass Through Trust
2007-1C-S and entered into by the Company and the Related Trustee, which
agreement becomes effective upon the execution and delivery of the Assignment
and Assumption Agreement pursuant to Section 7.01 of this Trust
Supplement.
Related
Trust:
Means
the Continental Pass Through Trust 2007-1C-S, to be formed under the Related
Pass Through Trust Agreement.
Related
Trustee:
Means
the trustee under the Related Pass Through Trust Agreement.
Scheduled
Delivery Date:
Has the
meaning specified in the NPA.
Scheduled
Payment:
Means,
with respect to any Equipment Note, any payment of principal or interest on
such
Equipment Note (other than any such payment which is not in fact received by
the
Trustee or any Subordination Agent within five days of the date on which such
payment is scheduled to be made); provided,
however,
that
any payment of
principal,
premium, if any, or interest resulting from the redemption or purchase of any
Equipment Note shall not constitute a Scheduled Payment.
Special
Payment:
Means
any payment (other than a Scheduled Payment) in respect of, or any proceeds
of,
any Equipment Note or Collateral (as defined in each Indenture).
Substitute
Aircraft:
Has the
meaning specified in the NPA.
Transfer
Date:
Has the
meaning specified in Section 7.01 of this Trust Supplement.
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 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 and the NPA,
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, 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.
Trustee:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Underwriters:
Means,
collectively, Morgan Stanley & Co. Incorporated, Credit Suisse Securities
(USA) LLC, Merrill
Lynch, Pierce, Fenner & Smith Incorporated,
Citigroup
Global Markets Inc., UBS Securities LLC, Calyon Securities (USA) Inc. and
J.P.Morgan Securities Inc.
Underwriting
Agreement:
Means
the Underwriting Agreement dated March 27, 2007 among the Underwriters, the
Company and the Depositary, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
CERTIFICATES;
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;
(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 or its nominee, on the Record Date prior to each Distribution Date,
the
Trustee will request that such Clearing Agency post on its Internet bulletin
board 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 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 U.S. 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) If
the
aggregate principal payments scheduled for a Regular Distribution Date prior
to
the Delivery Period Termination Date differ from the amount thereof set forth
for the Applicable Certificates on page S-33 of the Prospectus Supplement,
by no
later than the 15th
day
prior to such Regular Distribution Date, the Trustee shall mail written notice
of the actual amount of such scheduled payments to the Applicable
Certificateholders of record as of a date within 15 Business Days prior to
the
date of mailing.
(d) 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
page S-33 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.
(e) The
Trustee shall provide promptly to the Applicable Certificateholders all material
non-confidential information received by the Trustee from the
Company.
(f)
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 7.01 of this Trust Supplement 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 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 7.01 of this Trust Supplement),
(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.
Section
3.04. Limitation
of Liability for Payments.
Section
3.09 of the Basic Agreement shall be amended, with respect to the Applicable
Trust, by deleting the phrase "the Owner Trustees or the Owner Participants"
in
the second sentence thereof and adding in lieu thereof "the Liquidity
Provider".
DEFAULT
Section
4.01. Purchase
Rights of Certificateholders.
(a) At
any time after the occurrence and during the continuation of a Certificate
Buyout Event, each Applicable Certificateholder (other than the Company or
any
of its Affiliates) shall have the right (which shall not expire upon any
purchase of the Class A Certificates pursuant to the Class B Trust Agreement)
to
purchase, for the purchase prices set forth in the Class A Trust Agreement
and
the Class B Trust Agreement, respectively, all, but not less than all, of the
Class A Certificates and the Class B Certificates upon 15 days' written notice
to the Class A Trustee, the Class B Trustee and each other Applicable
Certificateholder, on the third Business Day next following the expiry of such
15-day notice period, provided
that (A)
if prior to the end of such 15-day period any other Applicable Certificateholder
(other than the Company or any of its Affiliates) notifies such purchasing
Applicable Certificateholder that such other Applicable Certificateholder wants
to participate in such purchase, then such other Applicable Certificateholder
(other than the Company or any of its Affiliates) may join with the purchasing
Applicable Certificateholder to purchase all, but not less than all, of the
Class A Certificates and the Class B Certificates pro rata based on the
Fractional Undivided Interest in the Applicable Trust held by each such
Applicable Certificateholder and (B) if prior to the end of such 15-day period
any other Applicable Certificateholder fails to notify the purchasing Applicable
Certificateholder of such other Applicable Certificateholder's desire to
participate in such a purchase, then such other Applicable Certificateholder
shall lose its right to purchase the Class A Certificates and the Class B
Certificates pursuant to this Section 4.01(a);
(b)
By
acceptance of its Applicable Certificate, each Applicable Certificateholder
agrees that at any time after the occurrence and during the continuation of
a
Certificate Buyout Event:
(i)
if
any Additional Certificates are issued pursuant to one or more Additional
Trusts, each Additional Certificateholder (other than the Company or any of
its
Affiliates), shall have the right (which shall not expire upon any purchase
of
the Class A Certificates pursuant to the Class B Trust Agreement or any purchase
of the Class A
Certificates
and the Class B Certificates pursuant to clause (a) above) to purchase all,
but
not less than all, of the Class A Certificates, the Class B Certificates, the
Applicable Certificates and any Additional Certificates ranked senior to the
Additional Certificates held by the purchasing Additional Certificateholders
upon 15 days' written notice to the Trustee, the Class A Trustee, the Class
B
Trustee, any Additional Trustee with respect to Additional Certificates that
rank senior to the Additional Certificates held by the purchasing Additional
Certificateholders and each other Additional Certificateholder of the same
Class, on the third Business Day next following the expiry of such 15-day notice
period, provided
that (A)
if prior to the end of such 15-day period any other Additional Certificateholder
of such Class (other than the Company or any of its Affiliates) notifies such
purchasing Additional Certificateholder that such other Additional
Certificateholder wants to participate in such purchase, then such other
Additional Certificateholder (other than the Company or any of its Affiliates)
may join with the purchasing Additional Certificateholder to purchase all,
but
not less than all, of the Class A Certificates, the Class B Certificates, the
Applicable Certificates and such senior Additional Certificates pro rata based
on the Fractional Undivided Interest in the applicable Additional Trust held
by
each such Additional Certificateholder and (B) if prior to the end of such
15-day period any other Additional Certificateholder of such Class fails to
notify the purchasing Additional Certificateholder of such other Additional
Certificateholder's desire to participate in such a purchase, then such other
Additional Certificateholder shall lose its right to purchase the Class A
Certificates, the Class B Certificates, the Applicable Certificates and such
senior Additional Certificates pursuant to this Section 4.01(b)(i).
(ii)
if
any Refinancing Certificates are issued, each Refinancing Certificateholder
shall have the same right (subject to the same terms and conditions) to purchase
Certificates pursuant to Section 4.01(a) (and to receive notice in connection
therewith) as the Certificateholders of the Class that such Refinancing
Certificates refinanced.
The
purchase price with respect to the Applicable Certificates shall be equal to
the
Pool Balance of the Applicable Certificates, together with accrued and unpaid
interest thereon to the date of such purchase, without premium, but including
any other amounts then due and payable to the Applicable Certificateholders
under the Agreement, the Intercreditor Agreement, the Escrow Agreement or any
Note Document or on or in respect of the Applicable Certificates; provided,
however,
that no
such purchase of Applicable Certificates shall be effective unless the
purchaser(s) shall certify to the Trustee that contemporaneously with such
purchase, such purchaser(s) is (are) purchasing, pursuant to the terms of the
Agreement and the Other Agreements, the Class A Certificates, the Class B
Certificates and the Applicable Certificates, and, if applicable, the Additional
Certificates that are senior to the securities held by such purchaser(s). Each
payment of the purchase price of the Applicable Certificates referred to in
the
first sentence hereof shall be made to an account or accounts designated by
the
Trustee and each such purchase shall be subject to the terms of this Section
4.01. Each Applicable Certificateholder agrees by its acceptance of its
Applicable Certificate that (at any time after the occurrence of a Certificate
Buyout Event) it will, upon payment from Additional Certificateholder(s) or
Refinancing Certificateholders, as the case may be, of the purchase price set
forth in the first sentence of this paragraph, (i) forthwith sell, assign,
transfer and convey to
the
purchaser(s) thereof (without recourse, representation or warranty of any kind
except for its own acts), all of the right, title, interest and obligation
of
such Applicable Certificateholder in the Agreement, the Escrow Agreement, the
Deposit Agreement, the Intercreditor Agreement, the NPA, the Note Documents
and
all Applicable Certificates and Escrow Receipts held by such Applicable
Certificateholder (excluding all right, title and interest under any of the
foregoing to the extent such right, title or interest is with respect to an
obligation not then due and payable as respects any action or inaction or state
of affairs occurring prior to such sale) (and the purchaser shall assume all
of
such Applicable Certificateholder's obligations under the Agreement, the Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, the NPA, the
Note
Documents and all such Applicable Certificates and Escrow Receipts),
(ii) if such purchase occurs after a record date specified in
Section 2.03 of the Escrow Agreement relating to the distribution of unused
Deposits and/or accrued and unpaid interest on Deposits and prior to or on
the
related distribution date thereunder, forthwith turn over to the purchaser(s)
of
its Applicable Certificate all amounts, if any, received by it on account of
such distribution, and (iii) if such purchase occurs after a Record Date
relating to any distribution and prior to or on the related Distribution Date,
forthwith turn over to the purchaser(s) of its Applicable Certificate all
amounts, if any, received by it on account of such distribution. The Applicable
Certificates will be deemed to be purchased on the date payment of the purchase
price is made notwithstanding the failure of the Applicable Certificateholders
to deliver any Applicable Certificates and, upon such a purchase, (I) the only
rights of the Applicable Certificateholders will be to deliver the Applicable
Certificates to the purchaser(s) and receive the purchase price for such
Applicable Certificates and (II) if the purchaser(s) shall so request, such
Applicable Certificateholder will comply with all the provisions of Section
3.04
of the Basic Agreement to enable new Applicable Certificates to be issued to
the
purchaser in such denominations as it shall request. All charges and expenses
in
connection with the issuance of any such new Applicable Certificates shall
be
borne by the purchaser thereof.
As
used
in this Section 4.01 and elsewhere in this Trust Supplement, the terms
"Additional Certificate", "Additional Certificateholder", "Additional Equipment
Notes", "Additional Trust", "Additional Trust Agreement", "Additional Trustee",
"Class A Certificate", "Class A Certificateholder", "Class A Trust", "Class
A
Trust Agreement", "Class A Trustee", "Class B Certificate", "Class B
Certificateholder", "Class B Trust", "Class B Trust Agreement", "Class B
Trustee", "Refinancing Certificates", "Refinancing Certificateholder",
"Refinancing Equipment Notes" and "Refinancing Trust" shall have the respective
meanings assigned to such terms in the Intercreditor Agreement.
(c) This
Section 4.01 supersedes and replaces Section 6.01(b) of the Basic Agreement,
with respect to the Applicable Trust.
Section
4.02. 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 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) 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 Delivery Date as to which such Delivery Notice relates (the
"Applicable
Delivery 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 Delivery 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 Company, all as shall be described
in the Delivery Notice. 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 Delivery 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 Delivery 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 Delivery Date in accordance with the terms
of the Deposit Agreement and the Escrow Agreement. 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 Delivery
Date to the purchase price of the Equipment Notes, shall be re-deposited by
the
Trustee with the Depositary on the Applicable Delivery 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.
(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 promptly 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 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.
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, (i) 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" shall also be deemed to refer to "the Intercreditor
Agreement, the Escrow Agreement, the NPA or the Deposit Agreement", (ii) enter
into one or more agreements supplemental to the Agreement, the Intercreditor
Agreement or the NPA to provide for the formation of one or more Additional
Trusts, the issuance of Additional Certificates, the purchase by any Additional
Trust of applicable Additional Equipment Notes and other matters incidental
thereto or otherwise contemplated by Section 2.01(b) of the Basic Agreement,
subject to the provisions of Section 4(a)(vi) of the NPA and Section 9.1 of
the
Intercreditor Agreement, and (iii) enter into one or more agreements
supplemental to the Agreement to provide for the formation of one or more
Refinancing Trusts, the issuance of Refinancing Certificates, the purchase
by
any Refinancing Trust of applicable Refinancing Equipment Notes and other
matters incidental thereto or as otherwise contemplated by Section 2.01(b)
of
the Basic Agreement, subject to the provisions of Section 4(a)(vi) of the NPA
and Section 9.1(c) of the Intercreditor 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.
Section
6.04. Consent
of Holders of Certificates Issued under Other Trusts.
Notwithstanding any provision in Section 6.02 or Section 6.03 of this Trust
Supplement to the
contrary,
no amendment or modification of Section 4.01 of this Trust Supplement shall
be
effective unless the trustee for each Class of Certificates affected by such
amendment or modification shall have consented thereto.
TERMINATION
OF TRUST
Section
7.01.
Termination
of the Applicable Trust.
(a) The respective obligations and responsibilities of the Company
and the Trustee with respect to the Applicable Trust shall terminate upon the
earlier of (A) the completion of the assignment, transfer and discharge
described in the first sentence of the immediately following paragraph and
(B) distribution to all Applicable Certificateholders and the Trustee 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; provided,
however,
that in
no event shall the Applicable Trust continue beyond one hundred ten (110) years
following the date of the execution of this Trust Supplement.
Upon
the
earlier of (i) the first Business Day following June 30, 2009 or, if later,
the
fifth Business Day following the Delivery Period Termination Date and (ii)
the
fifth Business Day following the date on which a Triggering Event occurs (such
date, the "Transfer
Date"),
or,
if later, the date on which all of the conditions set forth in the immediately
following sentence have been satisfied, the Trustee is hereby directed (subject
only to the immediately following sentence) to, and the Company shall direct
the
institution that will serve as the Related Trustee under the Related Pass
Through Trust Agreement to, execute and deliver the Assignment and Assumption
Agreement, pursuant to which the Trustee shall assign, transfer and deliver
all
of the Trustee's right, title and interest to the Trust Property to the Related
Trustee under the Related Pass Through Trust Agreement. The Trustee and the
Related Trustee shall execute and deliver the Assignment and Assumption
Agreement upon the satisfaction of the following conditions:
(i) The
Trustee, the Related Trustee and each of the Rating Agencies then rating the
Applicable Certificates shall have received an Officer's Certificate and an
Opinion of Counsel dated the date of the Assignment and Assumption Agreement
and
each satisfying the requirements of Section 1.02 of the Basic Agreement, which
Opinion of Counsel shall be substantially to the effect set forth below and
may
be relied upon by the Beneficiaries (as defined in the Assignment and Assumption
Agreement):
(I) Upon
the
execution and delivery thereof by the parties thereto in accordance with the
terms of the Agreement and the Related Pass Through Trust Agreement, the
Assignment and Assumption Agreement will constitute the valid and binding
obligation of each of the parties thereto enforceable against each such party
in
accordance with its terms;
(II) Upon
the
execution and delivery of the Assignment and Assumption Agreement in accordance
with the terms of the Agreement and the Related Pass Through Trust Agreement,
each of the Applicable Certificates then Outstanding will be entitled to the
benefits of the Related Pass Through Trust Agreement;
(III) The
Related Trust is not required to be registered as an investment company under
the Investment Company Act of 1940, as amended;
(IV) The
Related Pass Through Trust Agreement constitutes the valid and binding
obligation of the Company enforceable against the Company in accordance with
its
terms; and
(V) Neither
the execution and delivery of the Assignment and Assumption Agreement in
accordance with the terms of the Agreement and the Related Pass Through Trust
Agreement, nor the consummation by the parties thereto of the transactions
contemplated to be consummated thereunder on the date thereof, will violate
any
law or governmental rule or regulation of the State of New York or the United
States of America known to such counsel to be applicable to the transactions
contemplated by the Assignment and Assumption Agreement.
(ii) The
Trustee and the Company shall have received (x) a copy of the articles of
incorporation and bylaws of the Related Trustee certified as of the Transfer
Date by the Secretary or Assistant Secretary of such institution and (y) a
copy
of the filing (including all attachments thereto) made by the institution
serving as the Related Trustee with the Office of the Superintendent, State
of
New York Banking Department for the qualification of the Related Trustee under
Section 131(3) of the New York Banking Law.
Upon
the
execution of the Assignment and Assumption Agreement by the parties thereto,
the
Applicable Trust shall be terminated, the Applicable Certificateholders shall
receive beneficial interests in the Related Trust in exchange for their
interests in the Applicable Trust equal to their respective beneficial interests
in the Applicable Trust, and the Outstanding Applicable Certificates
representing Fractional Undivided Interests in the Applicable Trust shall be
deemed for all purposes of the Agreement and the Related Pass Through Trust
Agreement, without further signature or action of any party or Applicable
Certificateholder, to be certificates representing the same fractional undivided
interests in the Related Trust and its trust property. By acceptance of its
Applicable Certificate, each Applicable Certificateholder consents to such
assignment, transfer and delivery of the Trust Property to the trustee of the
Related Trust upon the execution and delivery of the Assignment and Assumption
Agreement.
In
connection with the occurrence of the event set forth in clause (B) above,
notice of such termination, specifying the Distribution Date upon which the
Applicable Certificateholders may surrender their Applicable Certificates to
the
Trustee for payment of the final distribution and cancellation, shall be mailed
promptly by the Trustee to Applicable Certificateholders not earlier than the
60th
day and
not later than the 15th
day next
preceding such final Distribution Date specifying (A) the Distribution Date
upon
which the proposed final payment of the Applicable Certificates will be made
upon presentation and surrender of Applicable Certificates at the office or
agency of the Trustee therein specified, (B) the amount of any such proposed
final payment, and (C) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender
of
the
Applicable Certificates at the office or agency of the Trustee therein
specified. The Trustee shall give such notice to the Registrar at the time
such
notice is given to Applicable Certificateholders. Upon presentation and
surrender of the Applicable Certificates in accordance with such notice, the
Trustee shall cause to be distributed to Applicable Certificateholders such
final payments.
In
the
event that all of the Applicable Certificateholders shall not surrender their
Applicable Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Trustee shall give a second
written notice to the remaining Applicable Certificateholders to surrender
their
Applicable Certificates for cancellation and receive the final distribution
with
respect thereto. No additional interest shall accrue on the Applicable
Certificates after the Distribution Date specified in the first written notice.
In the event that any money held by the Trustee for the payment of distributions
on the Applicable Certificates shall remain unclaimed for two years (or such
lesser time as the Trustee shall be satisfied, after sixty days' notice from
the
Company, is one month prior to the escheat period provided under applicable
law)
after the final distribution date with respect thereto, the Trustee shall pay
to
each Loan Trustee the appropriate amount of money relating to such Loan Trustee
and shall give written notice thereof to the Company.
(b)
The
provisions of this Section 7.01 supersede and replace the provisions of Section
11.01 of the Basic Agreement in its entirety, with respect to the Applicable
Trust.
MISCELLANEOUS
PROVISIONS
Section 8.01.
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.
Section
8.02. GOVERNING
LAW.
THE AGREEMENT AND, UNTIL THE TRANSFER DATE, THE APPLICABLE CERTIFICATES SHALL
BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
THIS SECTION 8.02 SUPERSEDES AND REPLACES SECTION 12.05 OF THE BASIC
AGREEMENT,
WITH RESPECT TO THE APPLICABLE TRUST.
Section
8.03. 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
8.04. 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
22
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.
23
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.
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CONTINENTAL
AIRLINES, INC.
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| By: | ||
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Name:
Title:
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WILMINGTON
TRUST COMPANY,
as Trustee |
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| By: | ||
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Name:
Title:
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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 2007-1C-O
Continental
Airlines Pass Through Certificate, Series 2007-1C-O
Issuance
Date: April 10, 2007
Final
Maturity Date: April 19, 2014
Evidencing
A Fractional Undivided Interest In The Continental Airlines Pass Through Trust
2007-1C-O, The Property Of Which Shall Include Certain Equipment Notes Each
Secured By An Aircraft Owned By Continental Airlines, Inc.
$[_____________]
Fractional Undivided Interest
representing
0.0005945374% 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
2007-1C-O (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.
supplemented
by Trust Supplement No. 2007-1C-O thereto, dated as of April 10, 2007 (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 "Continental Airlines Pass Through Certificates, Series 2007-1C-O"
(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 (the "Trust
Property").
Each
issue of the Equipment Notes is secured by, among other things, a security
interest in an Aircraft owned by 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 April 19 and October 19 of each year (a "Regular
Distribution Date")
commencing October 19, 2007, 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 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.
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.
Under
certain circumstances set forth in Section 7.01 of the Trust Supplement, all
of
the Trustee's right, title and interest to the Trust Property may be assigned,
transferred and delivered to the Related Trustee of the Related Trust pursuant
to the Assignment and Assumption Agreement. Upon the effectiveness of such
Assignment and Assumption Agreement (the "Transfer"),
the
Trust shall be terminated, the Certificateholders shall receive beneficial
interests
in
the
Related Trust in exchange for their interests in the Trust equal to their
respective beneficial interests in the Trust, the Certificates representing
Fractional Undivided Interests in the Trust shall be deemed for all purposes
of
the Agreement and the Related Pass Through Trust Agreement to be certificates
representing the same fractional undivided interests in the Related Trust and
its trust property. Each Certificateholder, by its acceptance of this
Certificate or a beneficial interest herein, agrees to be bound by the
Assignment and Assumption Agreement and subject to the terms of the Related
Pass
Through Trust Agreement as a Certificateholder thereunder. From and after the
Transfer, unless and to the extent the context otherwise requires, references
herein to the Trust, the Agreement and the Trustee shall constitute references
to the Related Trust, the Related Pass Through Trust Agreement and trustee
of
the Related Trust, respectively.
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 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 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 or hold 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, UNTIL THE TRANSFER, THIS CERTIFICATE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS. THE RELATED PASS THROUGH TRUST AGREEMENT AND, FROM
AND AFTER THE TRANSFER, THIS CERTIFICATE SHALL BE GOVERNED 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.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
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CONTINENTAL
AIRLINES PASS THROUGH TRUST 2007-1C-O
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| By: |
WILMINGTON
TRUST COMPANY,
as
Trustee
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| By: | ||
|
Name:
Title:
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FORM
OF
THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
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WILMINGTON
TRUST COMPANY,
as
Trustee
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| By: | ||
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Name:
Title:
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[DTC
Letter of Representations]
FORM
OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
Continental
Airlines Pass Through Trust 2007-1C-O
ASSIGNMENT
AND ASSUMPTION AGREEMENT (2007-1C-O), dated ________ __, ____ (the
"Assignment
Agreement"),
between Wilmington Trust Company, a Delaware banking corporation ("WTC"),
not
in its individual capacity except as expressly provided herein, but solely
as
trustee under the Pass Through Trust Agreement dated as of September 25, 1997
(as amended or modified from time to time, the "Basic
Agreement"),
as
supplemented by the Trust Supplement No. 2007-1C-O dated as of April 10, 2007
(the "Trust
Supplement"
and
together with the Basic Agreement, the "Agreement")
in
respect of the Continental Airlines Pass Through Trust 2007-1C-O (the
"Assignor"),
and
Wilmington Trust Company, a Delaware banking corporation, not in its individual
capacity except as expressly provided herein, but solely as trustee under the
Basic Agreement as supplemented by the Trust Supplement No. 2007-1C-S dated
as
of April 10, 2007 (the "New
Supplement",
and,
together with the Basic Agreement, the "New Agreement")
in
respect of the Continental Airlines Pass Through Trust 2007-1C-S (the
"Assignee").
W
I T N E
S S E T H:
WHEREAS,
the parties hereto desire to effect on the date hereof (the "Transfer
Date")
(a)
the transfer by the Assignor to the Assignee of all of the right, title and
interest of the Assignor in, under and with respect to, among other things,
the
Trust Property and each of the documents listed in Schedule I hereto (the
"Scheduled
Documents")
and
(b) the assumption by the Assignee of the obligations of the Assignor (i) under
the Scheduled Documents and (ii) in respect of the Applicable Certificates
issued under the Agreement; and
WHEREAS,
the Scheduled Documents permit such transfer upon satisfaction of certain
conditions heretofore or concurrently herewith being complied with;
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements herein contained, the parties hereto do hereby agree as follows
(capitalized terms used herein without definition having the meaning ascribed
thereto in the Agreement):
1. Assignment.
The
Assignor does hereby sell, assign, convey, transfer and set over unto the
Assignee as of the Transfer Date all of its present and future right, title
and
interest in, under and with respect to the Trust Property and the Scheduled
Documents and each other contract, agreement, document or instrument relating
to
the Trust Property or the Scheduled Documents (such other contracts, agreements,
documents or instruments, together with the Scheduled Documents, to be referred
to as the "Assigned
Documents"),
and
any proceeds therefrom, together with all documents and instruments evidencing
any of such right, title and interest.
2. Assumption.
The
Assignee hereby assumes for the benefit of the Assignor and each of the parties
listed in Schedule II hereto (collectively, the "Beneficiaries")
all of
the duties and obligations of the Assignor, whenever accrued, pursuant to the
Assigned Documents and hereby confirms that it shall be deemed a party to each
of the Assigned Documents to which the Assignor is a party and shall be bound
by
all the terms thereof (including the agreements and obligations of the Assignor
set forth therein) as if therein named as the Assignor. Further, the Assignee
hereby assumes for the benefit of the Assignor and the Beneficiaries all of
the
duties and obligations of the Assignor under the Outstanding Applicable
Certificates and hereby confirms that the Applicable Certificates representing
Fractional Undivided Interests under the Agreement shall be deemed for all
purposes of the Agreement and the New Agreement to be certificates representing
the same fractional undivided interests under the New Agreement equal to their
respective beneficial interests in the trust created under the
Agreement.
3. Effectiveness.
This
Assignment Agreement shall be effective upon the execution and delivery hereof
by the parties hereto, and each Applicable Certificateholder, by its acceptance
of its Applicable Certificate or a beneficial interest therein, agrees to be
bound by the terms of this Assignment Agreement.
4. Payments.
The
Assignor hereby covenants and agrees to pay over to the Assignee, if and when
received following the Transfer Date, any amounts (including any sums payable
as
interest in respect thereof) paid to or for the benefit of the Assignor that,
under Section 1 hereof, belong to the Assignee.
5. Further
Assurances.
The
Assignor shall, at any time and from time to time, upon the request of the
Assignee, promptly and duly execute and deliver any and all such further
instruments and documents and take such further action as the Assignee may
reasonably request to obtain the full benefits of this Assignment Agreement
and
of the rights and powers herein granted. The Assignor agrees to deliver any
Applicable Certificates, and all Trust Property, if any, then in the physical
possession of the Assignor, to the Assignee.
6. Representations
and Warranties.
(a) The
Assignee represents and warrants to the Assignor and each of the Beneficiaries
that:
(i) it
has
all requisite power and authority and legal right to enter into and carry out
the transactions contemplated hereby and to carry out and perform the
obligations of the "Pass Through Trustee" under the Assigned
Documents;
(ii) on
and as
of the date hereof, the representations and warranties of the Assignee set
forth
in Section 7.15 of the Basic Agreement and Section 5.04 of the New Supplement
are true and correct.
(b) The
Assignor represents and warrants to the Assignee that:
(i) it
is
duly incorporated, validly existing and in good standing under the laws of
the
State of Delaware and has the full trust power, authority and legal right under
the
laws
of the State of Delaware and the United States pertaining to its trust and
fiduciary powers to execute and deliver this Assignment Agreement;
(ii) the
execution and delivery by it of this Assignment Agreement and the performance
by
it of its obligations hereunder have been duly authorized by it and will not
violate its articles of association or by-laws or the provisions of any
indenture, mortgage, contract or other agreement to which it is a party or
by
which it is bound; and
(iii) this
Assignment Agreement constitutes the legal, valid and binding obligations of
it
enforceable against it in accordance with its terms, except as the same may
be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by general
principles of equity, whether considered in a proceeding at law or in
equity.
7. GOVERNING
LAW.
THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH
THE LAWS OF THE STATE OF NEW YORK INCLUDING MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE.
8. Counterparts.
This
Assignment Agreement may be executed in any number of counterparts, all of
which
together shall constitute a single instrument. It shall not be necessary that
any counterpart be signed by both parties so long as each party shall sign
at
least one counterpart.
9. Third
Party Beneficiaries.
The
Assignee hereby agrees, for the benefit of the Beneficiaries, that its
representations, warranties and covenants contained herein are also intended
to
be for the benefit of each Beneficiary, and each Beneficiary shall be deemed
to
be an express third party beneficiary with respect thereto, entitled to enforce
directly and in its own name any rights or claims it may have against such
party
as such beneficiary.
IN
WITNESS WHEREOF, the parties hereto, through their respective officers thereunto
duly authorized, have duly executed this Assignment Agreement as of the day
and
year first above written.
|
ASSIGNOR:
|
||
| |
|
WILMINGTON TRUST COMPANY, not in its individual
capacity
except as expressly provided herein, but solely as trustee under
the Pass
Through Trust Agreement and Trust Supplement in respect of the
Continental
Airlines Pass Through Trust 2007-1C-O
|
| By: | ||
| Title | ||
|
ASSIGNEE:
|
||
| |
|
WILMINGTON
TRUST COMPANY, not in its individual
capacity except as expressly provided herein, but solely
as trustee under
the Pass Through Trust Agreement and Trust Supplement in
respect of the
Continental Airlines Pass Through Trust 2007-1C-S
|
| By: | ||
| Title | ||
Schedule
I
Schedule
of Assigned Documents
(1) Intercreditor
Agreement dated as of April 10, 2007 among the Trustee, the Other Trustees,
liquidity providers relating to the Class A Certificates and the Class B
Certificates and the Subordination Agent.
(2) Escrow
and Paying Agent Agreement (Class C) dated as of April 10, 2007 among the Escrow
Agent, the Underwriters, the Trustee and the Paying Agent.
(3) Note
Purchase Agreement dated as of April 10, 2007 among the Company, the Trustee,
the Other Trustees, the Depositary, the Escrow Agent, the Paying Agent and
the
Subordination Agent.
(4) Deposit
Agreement (Class C) dated as of April 10, 2007 between the Escrow Agent and
the
Depositary.
(5) Each
of
the Operative Agreements (as defined in the Participation Agreement for each
Aircraft) in effect as of the Transfer Date.
Schedule
II
Schedule
of Beneficiaries
Wilmington
Trust Company, not in its individual capacity but solely as Subordination
Agent
Wilmington
Trust Company, not in its individual capacity but solely as Paying
Agent
RZB
Finance LLC, as Liquidity Provider
Raiffeisen
Zentralbank Österreich Aktiengesellschaft, as Liquidity Guarantor
Credit
Suisse, New York Branch, as Depositary
Continental
Airlines, Inc.
Morgan
Stanley & Co. Incorporated, as Underwriter
Credit
Suisse Securities (USA) LLC, as Underwriter
Merrill
Lynch, Pierce, Fenner & Smith Incorporated,
as
Underwriter
Citigroup
Global Markets Inc.,
as
Underwriter
UBS
Securities LLC,
as
Underwriter
Calyon
Securities (USA) Inc.,
as
Underwriter
J.P.Morgan
Securities Inc.,
as
Underwriter
Wells
Fargo Bank Northwest, National Association, as Escrow Agent
Each
of
the other parties to the Assigned Documents
TRUST
SUPPLEMENT No. 2007-1C-S
Dated
as
of April 10, 2007
between
WILMINGTON
TRUST COMPANY
as
Trustee,
and
CONTINENTAL
AIRLINES, INC.
to
PASS
THROUGH TRUST AGREEMENT
Dated
as
of September 25, 1997
$168,198,000
Continental
Airlines Pass Through Trust 2007-1C-S
7.339%
Continental Airlines
Pass
Through Certificates,
Series
2007-1C-S
Page
This
Trust Supplement No. 2007-1C-S, dated as of April 10, 2007 (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
;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 has obtained commitments from Boeing for the delivery of certain
Aircraft;
WHEREAS,
as of the Transfer Date (as defined below), the Company will have financed
the
acquisition of all or a portion of such Aircraft through separate secured loan
transactions, under which the Company owns such Aircraft (collectively, the
"Owned
Aircraft");
WHEREAS,
as of the Transfer Date, in the case of each Owned Aircraft, the Company will
have issued pursuant to an Indenture, on a recourse basis, Equipment Notes
to
finance a portion of the purchase price of such Owned Aircraft;
WHEREAS,
as of the Transfer Date, the Related Trustee will assign, transfer and deliver
all of such trustee's right, title and interest to the trust property held
by
the Related Trustee to the Trustee pursuant to the Assignment and Assumption
Agreement (as defined below);
WHEREAS,
the Trustee, effective only, but automatically, upon execution and delivery
of
the Assignment and Assumption Agreement, will be deemed to have declared the
creation of the Continental Airlines Pass Through Trust 2007-1C-S (the
"Applicable
Trust")
for
the benefit of the Applicable Certificateholders, and each Holder of Applicable
Certificates outstanding as of the Transfer Date, as the grantors of the
Applicable Trust, by their respective acceptances of such Applicable
Certificates, will join in the creation of the Applicable Trust with the
Trustee;
WHEREAS,
all Applicable Certificates (as defined below) deemed 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 Applicable Certificates to which an
Escrow Receipt (as defined below) has been affixed;
WHEREAS,
upon the execution and delivery of the Assignment and Assumption Agreement,
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;
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:
THE
CERTIFICATES
Section
1.01. The
Certificates.
The
Applicable Certificates shall be known as "Continental Airlines Pass Through
Certificates, Series 2007-1C-S". 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
initially deemed issued under the Agreement shall be equal to the aggregate
principal amount of "Outstanding" pass through certificates representing
fractional undivided interests in the Related Trust on the Transfer Date.
Subject to the preceding sentence and Section 5.01 of this Trust Supplement
and
except for Applicable Certificates authenticated and delivered under Sections
3.03, 3.04, 3.05 and 3.06 of the Basic Agreement, no Applicable Certificates
shall be authenticated under the Agreement.
(b) The
Regular Distribution Dates with respect to any payment of Scheduled Payments
means April 19 and October 19 of each year, commencing on October 19, 2007,
until payment of all of the Scheduled Payments to be made under the Equipment
Notes has been made.
(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 as Exhibit A to the
Related Pass Through Trust Supplement, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
by
the Related Pass Through Trust Agreement or the Agreement, as the case may
be,
or as the Trustee may deem appropriate, to reflect the fact that the Applicable
Certificates are being issued under the Agreement as opposed to under the
Related Pass Through Trust Agreement. 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 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 or hold
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 as Exhibit B to the Related Pass Through Trust
Supplement.
(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 not entitled to the benefits of a 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.
(k) The
"particular sections of the Note Purchase Agreement", for purposes of
clause (3) of Section 7.07 of the Basic Agreement, are Section 8.1 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.
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:
Means
the Basic Agreement, as supplemented by this Trust Supplement.
Aircraft:
Means
each of the New Aircraft or Substitute Aircraft in respect of which a
Participation Agreement is entered into in accordance with the NPA (or any
substitute aircraft, including engines therefor, owned by the Company and
securing one or more Equipment Notes).
Aircraft
Purchase Agreement:
Has the
meaning specified in the NPA.
Applicable
Certificate:
Means
any of the "Applicable Certificates" issued by the Related Trust and that are
"Outstanding" (as defined in the Related Pass Through Trust Agreement) as of
the
Transfer Date (the "Transfer
Date Certificates")
and
any Certificate issued in exchange therefor or replacement thereof pursuant
to
the Agreement.
Applicable
Certificateholder:
Means
the Person in whose name an Applicable Certificate is registered on the Register
for the Applicable Certificates.
Applicable
Trust:
Has the
meaning specified in the recitals hereto.
Assignment
and Assumption Agreement:
Means
the assignment and assumption agreement substantially in the form of Exhibit
C
to the Related Pass Through Trust Supplement executed and delivered in
accordance with Section 7.01 of the Related Trust Supplement.
Basic
Agreement:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Boeing:
Means
The Boeing Company.
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 Applicable 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.
Certificate:
Has the
meaning specified in the Intercreditor Agreement.
Certificate
Buyout Event:
Means
that a Continental Bankruptcy Event has occurred and is continuing and the
following events have occurred: (A) (i) the 60-day period specified in Section
1110(a)(2)(A) of the U.S. Bankruptcy Code (the “60-Day Period”) has expired and
(ii) Continental has not entered into one or more agreements under Section
1110(a)(2)(A) of the U.S. Bankruptcy Code to perform all of its obligations
under all of the Indentures or, if it has entered into such agreements, has
at
any time thereafter failed to cure any default under any of the Indentures
in
accordance with Section 1110(a)(2)(B) of the Bankruptcy Code; or (B) if prior
to
the expiry of the 60-Day Period, Continental shall have abandoned any
Aircraft.
Class:
Has the
meaning specified in the Intercreditor Agreement.
Company:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Continental
Bankruptcy Event:
Has the
meaning specified in the Intercreditor Agreement.
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:
Has the
meaning specified in the Related Pass Through Trust Supplement.
Deposit
Agreement:
Means
the Deposit Agreement dated as of April 10, 2007, 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
Credit Suisse, a banking institution organized under the laws of Switzerland,
acting through its New York branch.
Deposits:
Has the
meaning specified in the Deposit Agreement.
Distribution
Date:
Means
any Regular Distribution Date or Special Distribution Date as the context
requires.
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 April 10, 2007 relating to
the
Applicable Certificates, among the Escrow Agent, the Escrow Paying Agent, the
Related Trustee (and after the Transfer Date, the Trustee) and the Underwriters,
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.
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
April
19,
2014.
Final
Withdrawal:
Has the
meaning specified in the Escrow Agreement.
Final
Withdrawal Date:
Has the
meaning specified in the Escrow Agreement.
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 dated as of April 10, 2007 among the Related Trustee
(and after the Transfer Date, the Trustee), the Related Other Trustees (and
after the Transfer Date, the Other Trustees), 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 Underwriters, together with all subsequent beneficial owners of the
Applicable Certificates.
Liquidity
Provider:
Means,
initially, RZB Finance LLC, as liquidity provider under the Class A Liquidity
Facility and Class B Liquidity Facility (as such terms are defined in the
Intercreditor Agreement), and any replacements or successors thereof appointed
in accordance with the Intercreditor Agreement.
New
Aircraft:
Has the
meaning specified in the NPA.
Note
Documents:
Means
the Equipment Notes with respect to the Applicable Certificates and, with
respect to any such Equipment Note, the Indenture and the Participation
Agreement relating to such Equipment Note.
NPA:
Means
the Note Purchase Agreement dated as of April 10, 2007 among the Related Trustee
(and after the Transfer Date, the Trustee), the Related Other Trustees (and
after the Transfer Date, the Other Trustees), the Company, the Escrow Agent,
the
Escrow Paying Agent and the Subordination Agent, as the same may be amended,
supplemented or otherwise modified from time to time, in accordance with its
terms.
Other
Agreements:
Means
(i) the Basic Agreement as supplemented by Trust Supplement
No. 2007-1A-S dated as of the date hereof relating to Continental Airlines
Pass Through Trust 2007-1A-S, (ii) the Basic Agreement as supplemented by
Trust Supplement No. 2007-1B-S dated as of the date hereof relating to
Continental Airlines Pass Through Trust 2007-1B-S, (iii) the Basic Agreement
as
supplemented by a Trust Supplement relating to any Additional Trust and (iv)
the
Basic Agreement as supplemented by a Trust Supplement relating to any
Refinancing Trust.
Other
Trustees:
Means
the trustees under the Other Agreements, and any successor or other trustee
appointed as provided therein.
Other
Trusts:
Means
the Continental Airlines Pass Through Trust 2007-1A-S, the Continental Airlines
Pass Through Trust 2007-1B-S, an Additional Trust or Trusts, if any, and a
Refinancing Trust or Trusts, if any, created by the Other
Agreements.
Outstanding:
When
used with respect to Applicable Certificates, means, as of the date of
determination, all Transfer Date Certificates, and all other Applicable
Certificates theretofore authenticated and delivered under the Agreement, in
each case except:
(i) Applicable
Certificates theretofore canceled by the Registrar or delivered to the Trustee
or the Registrar for cancellation;
(ii) Applicable
Certificates for which money in the full amount required to make the final
distribution with respect to such Applicable Certificates pursuant to Section
11.01 of the Basic Agreement has been theretofore deposited with the Trustee
in
trust for the Applicable Certificateholders as provided in Section 4.01 of
the
Basic Agreement pending distribution of such money to such Applicable
Certificateholders pursuant to payment of such final distribution;
and
(iii)
Applicable
Certificates in exchange for or in lieu of which other Applicable Certificates
have been authenticated and delivered pursuant to the Agreement.
Owned
Aircraft:
Has the
meaning specified in the third recital to this Trust
Supplement.
Participation
Agreement:
Means
each Participation Agreement entered into by the Related Trustee pursuant to
the
NPA, as the same may be amended, supplemented or otherwise modified in
accordance with its terms.
Pool
Balance:
Means,
as of any date, (i) the original aggregate face amount of the "Applicable
Certificates" as defined in the Related Pass Through Trust Agreement, less
(ii) the aggregate amount of all payments made as of such date in respect
of such Certificates, the Applicable Certificates (as defined in the Related
Pass Through Trust Agreement) or the Deposits, other than payments made in
respect of interest or premium thereon or reimbursement of any costs or expenses
incurred in connec-tion therewith. The Pool Balance as of any 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" as defined in the Related Pass Through
Trust Agreement. 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 payment with respect to other
Trust Property and the distribution thereof to be made on that date.
Prospectus
Supplement:
Means
the final Prospectus Supplement dated March 27, 2007 relating to the offering
of
the Applicable Certificates, the Class A and the Class B
Certificates.
Ratings
Confirmation:
Has the
meaning specified in the Intercreditor Agreement.
Related
Other Pass Through Trust Agreements:
Means
the "Other Agreements" as defined in the Related Pass Through Trust Agreement.
Related
Other Trustees:
Means
the "Other Trustees" as defined in the Related Pass Through Trust
Agreement.
Related
Other Trusts:
Means
the "Other Trusts" as defined in the Related Pass Through Trust Agreement.
Related
Pass Through Trust Agreement:
Means
the Basic Agreement as supplemented by the Trust Supplement No. 2007-1C-O dated
as of the date hereof (the "Related
Pass Through Trust Supplement"),
relating to the Continental Airlines Pass Through Trust 2007-1C-O and entered
into by the Company and the Related Trustee, as amended, supplemented or
otherwise modified from time to time in accordance with its
terms.
Related
Trust:
Means
the Continental Pass Through Trust 2007-1C-O, formed under the Related Pass
Through Trust Agreement.
Related
Trustee:
Means
the trustee under the Related Pass Through Trust Agreement.
Scheduled
Payment:
Means,
with respect to any Equipment Note, (i) any payment of principal or interest
on
such Equipment Note (other than any such payment which is not in fact received
by the Trustee or any Subordination Agent within five days of the date on which
such payment is scheduled to be made); provided,
however,
that
any payment of principal, premium, if any, or interest resulting from the
redemption or purchase of any Equipment Note shall not constitute a Scheduled
Payment.
Special
Payment:
Means
any payment (other than a Scheduled Payment) in respect of, or any proceeds
of,
any Equipment Note or Collateral (as defined in each Indenture).
Substitute
Aircraft:
Has the
meaning specified in the NPA.
Transfer
Date:
Means
the moment of execution and delivery of the Assignment and Assumption Agreement
by each of the parties thereto.
Transfer
Date Certificates:
Has the
meaning specified in the definition of "Applicable Certificates".
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 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
and the NPA, 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, provided
that
rights with respect to the Deposits or under the Escrow Agreement will not
constitute Trust Property.
Trust
Supplement:
Has the
meaning specified in the first paragraph of this trust supplement.
Trustee:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Underwriters:
Means,
collectively, Morgan Stanley & Co. Incorporated, Credit Suisse Securities
(USA) LLC, Merrill
Lynch, Pierce, Fenner & Smith Incorporated,
Citigroup
Global Markets Inc., UBS Securities LLC, Calyon Securities (USA) Inc. and
J.P.Morgan Securities Inc.
Underwriting
Agreement:
Means
the Underwriting Agreement dated March 27, 2007 among the Underwriters, the
Company and the Depositary, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
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;
(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 or its nominee, on the Record Date prior to each Distribution Date,
the
Trustee will request that such Clearing Agency post on its Internet bulletin
board 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 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 U.S. 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) If
the
aggregate principal payments scheduled for a Regular Distribution Date prior
to
the Delivery Period Termination Date differ from the amount thereof set forth
for the Applicable Certificates on page S-33 of the Prospectus Supplement,
by no later than the 15th
day
prior to such Regular Distribution Date, the Trustee (if the Related Trustee
has
not already done so) shall mail written notice of the actual amount of such
scheduled payments to the Applicable Certificateholders of record as of a date
within 15 Business Days prior to the date of mailing.
(d) 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
page S-33 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 (if the Related Trustee has not already
done so) 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
Transfer Date, the Trustee (if the Related Trustee has not already done so)
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" (as defined
in the Related Pass Through Trust Agreement) on the Delivery Period Termination
Date. The Trustee (if the Related Trustee has not already done so) 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.
(e) The
Trustee shall provide promptly to the Applicable Certificateholders all material
non-confidential information received by the Trustee from the
Company.
(f) 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 7.01 of this Trust
Supplement 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 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 7.01 of this Trust Supplement),
(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.
Section
3.04. Limitation
of Liability for Payments.
Section 3.09 of the Basic Agreement shall be amended, with respect to the
Applicable Trust, by deleting the phrase "the Owner Trustees or the Owner
Participants" in the second sentence thereof and adding in lieu thereof "the
Liquidity Provider".
DEFAULT
Section
4.01. Purchase
Rights of Certificateholders.
(a) At
any time after the occurrence and during the continuation of a Certificate
Buyout Event, each Applicable Certificateholder (other than the Company or
any
of its Affiliates) shall have the right (which shall not expire upon any
purchase of the Class A Certificates pursuant to the Class B Trust Agreement)
to
purchase, for the purchase prices set forth in the Class A Trust Agreement
and
the Class B Trust Agreement, respectively, all, but not less than all, of the
Class A Certificates and the Class B Certificates upon 15 days' written notice
to the Class A Trustee, the Class B Trustee and each other Applicable
Certificateholder, on the third Business Day next following the expiry of such
15-day
notice
period, provided
that (A)
if prior to the end of such 15-day period any other Applicable Certificateholder
(other than the Company or any of its Affiliates) notifies such purchasing
Applicable Certificateholder that such other Applicable Certificateholder wants
to participate in such purchase, then such other Applicable Certificateholder
(other than the Company or any of its Affiliates) may join with the purchasing
Applicable Certificateholder to purchase all, but not less than all, of the
Class A Certificates and the Class B Certificates pro rata based on the
Fractional Undivided Interest in the Applicable Trust held by each such
Applicable Certificateholder and (B) if prior to the end of such 15-day period
any other Applicable Certificateholder fails to notify the purchasing Applicable
Certificateholder of such other Applicable Certificateholder's desire to
participate in such a purchase, then such other Applicable Certificateholder
shall lose its right to purchase the Class A Certificates and the Class B
Certificates pursuant to this Section 4.01(a);
(b) By
acceptance of its Applicable Certificate, each Applicable Certificateholder
agrees that at any time after the occurrence and during the continuation of
a
Certificate Buyout Event:
(i) if
any
Additional Certificates are issued pursuant to one or more Additional Trusts,
each Additional Certificateholder (other than the Company or any of its
Affiliates), shall have the right (which shall not expire upon any purchase
of
the Class A Certificates pursuant to the Class B Trust Agreement or any purchase
of the Class A Certificates and the Class B Certificates pursuant to clause
(a)
above) to purchase all, but not less than all, of the Class A Certificates,
the
Class B Certificates, the Applicable Certificates and any Additional
Certificates ranked senior to the Additional Certificates held by the purchasing
Additional Certificateholders upon 15 days' written notice to the Trustee,
the
Class A Trustee, the Class B Trustee, any Additional Trustee with respect to
Additional Certificates that rank senior to the Additional Certificates held
by
the purchasing Additional Certificateholders and each other Additional
Certificateholder of the same Class, on the third Business Day next following
the expiry of such 15-day notice period, provided
that (A)
if prior to the end of such 15-day period any other Additional Certificateholder
of such Class (other than the Company or any of its Affiliates) notifies such
purchasing Additional Certificateholder that such other Additional
Certificateholder wants to participate in such purchase, then such other
Additional Certificateholder (other than the Company or any of its Affiliates)
may join with the purchasing Additional Certificateholder to purchase all,
but
not less than all, of the Class A Certificates, the Class B Certificates, the
Applicable Certificates and such senior Additional Certificates pro rata based
on the Fractional Undivided Interest in the applicable Additional Trust held
by
each such Additional Certificateholder and (B) if prior to the end of such
15-day period any other Additional Certificateholder of such Class fails to
notify the purchasing Additional Certificateholder of such other Additional
Certificateholder's desire to participate in such a purchase, then such other
Additional Certificateholder shall lose its right to purchase the Class A
Certificates, the Class B Certificates, the Applicable Certificates and such
senior Additional Certificates pursuant to this Section 4.01(b)(i).
(ii) if
any
Refinancing Certificates are issued, each Refinancing Certificateholder shall
have the same right (subject to the same terms and conditions) to purchase
Certificates pursuant to Section 4.01(a) (and to receive notice in connection
therewith) as the Certificateholders of the Class that such Refinancing
Certificates refinanced.
The
purchase price with respect to the Applicable Certificates shall be equal to
the
Pool Balance of the Applicable Certificates, together with accrued and unpaid
interest thereon to the date of such purchase, without premium, but including
any other amounts then due and payable to the Applicable Certificateholders
under the Agreement, the Intercreditor Agreement, the Escrow Agreement or any
Note Document or on or in respect of the Applicable Certificates; provided,
however,
that no
such purchase of Applicable Certificates shall be effective unless the
purchaser(s) shall certify to the Trustee that contemporaneously with such
purchase, such purchaser(s) is (are) purchasing, pursuant to the terms of the
Agreement and the Other Agreements, the Class A Certificates, the Class B
Certificates and the Applicable Certificates, and, if applicable, the Additional
Certificates that are senior to the securities held by such purchaser(s). Each
payment of the purchase price of the Applicable Certificates referred to in
the
first sentence hereof shall be made to an account or accounts designated by
the
Trustee and each such purchase shall be subject to the terms of this Section
4.01. Each Applicable Certificateholder agrees by its acceptance of its
Applicable Certificate that (at any time after the occurrence of a Certificate
Buyout Event) it will, upon payment from Additional Certificateholder(s) or
Refinancing Certificateholders, as the case may be, of the purchase price set
forth in the first sentence of this paragraph, (i) forthwith sell, assign,
transfer and convey to the purchaser(s) thereof (without recourse,
representation or warranty of any kind except for its own acts), all of the
right, title, interest and obligation of such Applicable Certificateholder
in
the Agreement, the Escrow Agreement, the Deposit Agreement, the Intercreditor
Agreement, the NPA, the Note Documents and all Applicable Certificates and
Escrow Receipts held by such Applicable Certificateholder (excluding all right,
title and interest under any of the foregoing to the extent such right, title
or
interest is with respect to an obligation not then due and payable as respects
any action or inaction or state of affairs occurring prior to such sale) (and
the purchaser shall assume all of such Applicable Certificateholder's
obligations under the Agreement, the Escrow Agreement, the Deposit Agreement,
the Intercreditor Agreement, the NPA, the Note Documents and all such Applicable
Certificates and Escrow Receipts), (ii) if such purchase occurs after a
record date specified in Section 2.03 of the Escrow Agreement relating to
the distribution of unused Deposits and/or accrued and unpaid interest on
Deposits and prior to or on the related distribution date thereunder, forthwith
turn over to the purchaser(s) of its Applicable Certificate all amounts, if
any,
received by it on account of such distribution, and (iii) if such purchase
occurs after a Record Date relating to any distribution and prior to or on
the
related Distribution Date, forthwith turn over to the purchaser(s) of its
Applicable Certificate all amounts, if any, received by it on account of such
distribution. The Applicable Certificates will be deemed to be purchased on
the
date payment of the purchase price is made notwithstanding the failure of the
Applicable Certificateholders to deliver any Applicable Certificates and, upon
such a purchase, (I) the only rights of the Applicable Certificateholders will
be to deliver the Applicable Certificates to the purchaser(s) and receive the
purchase price for such Applicable Certificates and (II) if the purchaser(s)
shall so request, such Applicable Certificateholder will comply with all the
provisions of Section 3.04 of the Basic Agreement to enable new Applicable
Certificates
to be issued to the purchaser in such denominations as it shall request. All
charges and expenses in connection with the issuance of any such new Applicable
Certificates shall be borne by the purchaser thereof.
As
used
in this Section 4.01 and elsewhere in this Trust Supplement, the terms
"Additional Certificate", "Additional Certificateholder", "Additional Equipment
Notes", "Additional Trust", "Additional Trust Agreement", "Additional Trustee",
"Class A Certificate", "Class A Certificateholder", "Class A Trust", "Class
A
Trust Agreement", "Class A Trustee", "Class B Certificate", "Class B
Certificateholder", "Class B Trust", "Class B Trust Agreement", "Class B
Trustee", "Refinancing Certificates", "Refinancing Certificateholder",
"Refinancing Equipment Notes" and "Refinancing Trust" shall have the respective
meanings assigned to such terms in the Intercreditor Agreement.
(c) This
Section 4.01 supersedes and replaces Section 6.01(b) of the Basic Agreement,
with respect to the Applicable Trust.
Section
4.02. 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.
THE
TRUSTEE
Section
5.01. Acquisition
of Trust Property.
(a) The Trustee is hereby irrevocably authorized and directed to execute
and deliver the Assignment and Assumption Agreement on the date specified in
Section 7.01 of the Related Pass Through Trust Supplement, subject only to
the
satisfaction of the conditions set forth in said Section 7.01. The Agreement
(except only for this sentence and the immediately preceding sentence hereof,
which are effective upon execution and delivery hereof) shall become effective
upon the execution and delivery of the Assignment and Assumption Agreement
by
the Trustee and the Related Trustee, automatically and without any further
signature or action on the part of the Company and the Trustee, and shall
thereupon constitute the legal, valid and binding obligation of the parties
hereto enforceable against each of the parties hereto in accordance with its
terms. Upon such execution and delivery of the Assignment and Assumption
Agreement, the Related Trust shall be terminated, the Applicable
Certificateholders shall receive beneficial interests in the Applicable Trust
in
exchange for their interests in the Related Trust equal to their respective
beneficial interests in the Related Trust and the "Outstanding" (as defined
in
the Related Pass Through Trust Agreement) pass through certificates representing
fractional undivided interests in the Related Trust shall be deemed for all
purposes of the Agreement, without further signature or action of any party
or
Certificateholder, to be Certificates representing the same Fractional Undivided
Interests in the Trust and Trust Property. By acceptance of its Applicable
Certificate, each Applicable Certificateholder consents to and ratifies such
assignment, transfer and delivery of the trust property of the Related Trust
to
the Trustee upon the execution and delivery of the Assignment and Assumption
Agreement. The provisions of this Section 5.01(a) 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 or Section 2.02 of the Basic Agreement shall not apply to the
Applicable Trust.
(b) The
Trustee, upon the execution and delivery of the Assignment and Assumption
Agreement, acknowledges its acceptance of all right, title and interest in
and
to the Trust Property and declares that the Trustee holds and will hold such
right, title and interest for the benefit of all then present and future
Applicable Certificateholders, upon the trusts herein and in the Basic Agreement
set forth. By the acceptance of each Applicable Certificate issued to it under
the Related Pass Through Trust Agreement and deemed issued under the Agreement,
each Holder of any such Applicable Certificate as grantor of the Applicable
Trust thereby joins in the creation and declaration of the Applicable Trust.
The
provisions of this Section 5.01(b) supersede and replace the provisions of
Section 2.03 of the Basic Agreement, with respect to the Applicable
Trust.
Section
5.02. [Intentionally
Omitted]
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, on the Transfer Date, that:
(a) the
Trustee has full power, authority and legal right to receive the Trust Property
assigned by the Related Trustee, assume the obligations under, and perform,
the
Assignment and Assumption Agreement, this Trust Supplement, the Intercreditor
Agreement, the Escrow Agreement, the NPA and the Note Documents to which it
is a
party and has taken all necessary action to authorize such receipt, assumption
and performance by it of this Trust Supplement, the Intercreditor Agreement,
the
Escrow Agreement, the NPA and the Note Documents to which it is a
party;
(b) the
receipt of the Trust Property under the Assignment and Assumption Agreement
and
the performance by the Trustee of the Assignment and Assumption Agreement,
this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the NPA
and
the Note Documents to which it is 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
receipt of the Trust Property under the Assignment and Assumption Agreement
and
the performance by the Trustee of the Assignment and Assumption Agreement,
this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the NPA
and
the Note Documents to which it is 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) the
Assignment and Assumption Agreement has been duly executed and delivered by
the
Trustee and this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement, the NPA and the Note Documents to which it is 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.
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, (i) 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" shall also be deemed
to refer to "the Intercreditor Agreement, the Escrow Agreement, the NPA or
the
Deposit Agreement", (ii) enter into one or more agreements supplemental to
the
Agreement, the Intercreditor Agreement or the NPA to provide for the formation
of one or more Additional Trusts, the issuance of Additional Certificates,
the
purchase by any Additional Trust of applicable Additional Equipment Notes and
other matters incidental thereto or otherwise contemplated by Section 2.01(b)
of
the Basic Agreement, subject to the provisions of Section 4(a)(vi) of the NPA
and Section 9.1 of the Intercreditor Agreement, and (iii) enter into one or
more
agreements supplemental to the Agreement to provide for the formation of one
or
more Refinancing Trusts, the issuance of Refinancing Certificates, the purchase
by any Refinancing Trust of applicable Refinancing Equipment Notes and other
matters incidental thereto or as otherwise contemplated by Section 2.01(b)
of
the Basic Agreement, subject to the provisions of Section 4(a)(vi) of the NPA
and Section 9.1(c) of the Intercreditor 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.
Section
6.04. Consent
of Holders of Certificates Issued under Other Trusts.
Notwithstanding any provision in Section 6.02 or Section 6.03 of this
Trust Supplement to the contrary, no amendment or modification of Section 4.01
of this Trust Supplement shall be effective unless the trustee for each Class
of
Certificates affected by such amendment or modification shall have consented
thereto.
TERMINATION
OF TRUST
Section
7.01. Termination
of the Applicable Trust.
(a) The respective obligations and responsibilities of the
Company and the Trustee with respect to the Applicable Trust shall terminate
upon the distribution to all Applicable Certificateholders and the Trustee
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; provided,
however,
that in
no event shall the Applicable Trust continue beyond one hundred ten (110) years
following the date of the execution of this Trust Supplement.
Notice
of
any termination, specifying the Distribution Date upon which the Applicable
Certificateholders may surrender their Applicable Certificates to the Trustee
for payment of the final distribution and cancellation, shall be mailed promptly
by the Trustee to Applicable Certificateholders not earlier than the
60th
day and
not later than the 15th
day next
preceding such final Distribution Date specifying (A) the Distribution Date
upon
which the proposed final payment of the Applicable Certificates will be made
upon presentation and surrender of Applicable Certificates at the office or
agency of the Trustee therein specified, (B) the amount of any such
proposed final payment, and (C) that the Record Date otherwise applicable to
such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Applicable Certificates at the office or
agency of the Trustee therein specified. The Trustee shall give such notice
to
the Registrar at the time such notice is given to Applicable Certificateholders.
Upon presentation and surrender of the Applicable Certificates in accordance
with such notice, the Trustee shall cause to be distributed to Applicable
Certificateholders such final payments.
In
the
event that all of the Applicable Certificateholders shall not surrender their
Applicable Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Trustee shall give a second
written notice to the remaining Applicable Certificateholders to surrender
their
Applicable Certificates for cancellation and receive the final distribution
with
respect thereto. No additional interest shall accrue on the Applicable
Certificates after the Distribution Date specified in the first written notice.
In the event that any money held by the Trustee for the payment of distributions
on the Applicable Certificates shall remain unclaimed for two years (or such
lesser time as the Trustee shall be satisfied, after sixty days' notice from
the
Company, is one month prior to the escheat period provided under applicable
law)
after the final distribution date with respect thereto, the Trustee shall pay
to
each Loan Trustee the appropriate amount of money relating to such Loan Trustee
and shall give written notice thereof to the Company.
(b) The
provisions of this Section 7.01 supersede and replace the provisions of Section
11.01 of the Basic Agreement in its entirety, with respect to the Applicable
Trust.
MISCELLANEOUS
PROVISIONS
Section 8.01. 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.
Section
8.02. GOVERNING
LAW.
THE
AGREEMENT AND THE APPLICABLE CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED
IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THIS SECTION 8.02 SUPERSEDES
AND REPLACES SECTION 12.05 OF THE BASIC AGREEMENT,
WITH RESPECT TO THE APPLICABLE TRUST.
Section
8.03. 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
8.04. 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.
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:
|
||
22
REVOLVING
CREDIT AGREEMENT
(2007-1A)
dated
as
of April 10, 2007
between
WILMINGTON
TRUST COMPANY,
as
Subordination Agent,
as
Agent
and Trustee for the
Continental
Airlines Pass Through Trust 2007-1A,
as
Borrower
and
RZB
FINANCE LLC,
as
Liquidity Provider
__________________________
Relating
to Continental Airlines
Pass
Through Trust 2007-1A 5.983% Continental Airlines
Pass
Through Certificates, Series 2007-1A
__________________________
Page
i
TABLE
OF CONTENTS
(continued)
Page
|
Section
7.01 Amendments, Etc.
|
22
|
|
Section
7.02 Notices, Etc.
|
22
|
|
Section
7.03 No Waiver; Remedies
|
23
|
|
Section
7.04 Further Assurances
|
23
|
|
Section
7.05 Indemnification; Survival of Certain
Provisions
|
23
|
|
Section
7.06 Liability of the Liquidity
Provider
|
23
|
|
Section
7.07 Costs, Expenses and Taxes
|
24
|
|
Section
7.08 Binding Effect; Participations
|
24
|
|
Section
7.09 Severability
|
26
|
|
Section
7.10 GOVERNING LAW
|
26
|
|
26
|
|
|
Section
7.12 Execution in Counterparts
|
27
|
|
Section
7.13 Entirety
|
27
|
|
Section
7.14 Headings
|
27
|
|
Section
7.15 Transfer
|
27
|
|
Section
7.16 LIQUIDITY PROVIDER’S OBLIGATION TO MAKE
ADVANCES
|
27
|
|
Section
7.17 Patriot Act
|
27
|
|
Schedule
A
|
-
|
||
|
Schedule
B
|
-
|
||
|
Annex
I
|
-
|
||
|
Annex II
|
-
|
||
|
Annex III
|
-
|
||
|
Annex IV
|
-
|
||
|
Annex V
|
-
|
||
|
Annex VI
|
-
|
REVOLVING
CREDIT AGREEMENT (2007-1A)
THIS
REVOLVING CREDIT AGREEMENT (2007-1A)
dated as
of April 10, 2007, between WILMINGTON
TRUST COMPANY,
a
Delaware corporation, not in its individual capacity but solely as Subordination
Agent under the Intercreditor Agreement (each as defined below), as agent and
trustee for the Class A Trust (as defined below) (the “Borrower”),
and
RZB
FINANCE LLC,
a
Delaware limited liability company (the “Liquidity
Provider”).
W
I T
N E S S E T H:
WHEREAS,
pursuant to the Class A Trust Agreement (such term and all other
capitalized terms used in these recitals having the meanings set forth or
referred to in Section 1.01), the Class A Trust is issuing the
Class A Certificates;
WHEREAS,
the
Borrower, in order to support the timely payment of a portion of the interest
on
the Class A 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;
and
WHEREAS,
Raiffeisen Zentralbank Österreich Aktiengesellschaft, a banking institution
organized and existing under the laws of the Republic of Austria (the
“Guarantor”),
will
guarantee in full, pursuant to a master guaranty certificate dated as of the
date hereof and issued by the Guarantor pursuant to that certain Master Guaranty
Agreement, dated as of September 1, 1997, issued by the Guarantor (collectively,
the “Guarantee
Agreement”),
the
obligations of the Liquidity Provider under this Agreement.
NOW,
THEREFORE,
in
consideration of the premises, the parties hereto agree as follows:
Section
1.01 Certain
Defined Terms.
(a) Definitions.
As used
in this Agreement and unless otherwise expressly indicated, or unless the
context clearly requires otherwise, the following capitalized terms shall have
the following respective meanings for all purposes of this
Agreement:
“Additional
Cost”
has
the
meaning assigned to such term in Section 3.01.
“Advance”
means
an Interest Advance, a Final Advance, a Provider Advance or an Applied Provider
Advance, as the case may be.
“Applicable
Liquidity Rate”
has
the
meaning assigned to such term in Section 3.07(g).
“Applicable
Margin”
means
(x) with respect to any Unpaid Advance or Applied Provider Advance, the per
annum rate specified in item 1 of Schedule A, or (y) with respect to
any Unapplied Provider Advance, the rate per annum specified in the Fee
Letter.
“Applied
Downgrade Advance”
has
the
meaning assigned to such term in Section 2.06(a).
“Applied
Non-Extension Advance”
has
the
meaning assigned to such term in Section 2.06(a).
“Applied
Provider Advance”
has
the
meaning assigned to such term in Section 2.06(a).
“Assignment
and Assumption Agreement”
means
the Assignment and Assumption Agreement to be entered into between the Borrower
and the trustee of the Successor Trust, substantially in the form of
Exhibit C to the Trust Supplement No. 2007-1A-O, dated as of the date
hereof, relating to the Class A Trust.
“Base
Rate”
means
a
fluctuating interest rate per annum in effect from time to time, which rate
per
annum shall at all times be equal to (a) the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if
such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or if such rate is not so published for any day that
is a Business Day, the average of the quotations for such day for such
transactions received by the Liquidity Provider from three Federal funds brokers
of recognized standing selected by it, plus (b) one-quarter of one percent
(¼ 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 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 Class A Certificate is outstanding, the city and state in which
the Class A Trustee, the Borrower or any Loan Trustee maintains its
Corporate Trust Office or receives or disburses funds, and, if the applicable
Business Day relates to any Advance or other amount bearing interest based
on
the LIBOR Rate, on which dealings in dollars are carried on in the London
interbank market.
“Consent
Period”
has
the
meaning specified in Section 2.10.
“Deposit
Agreement”
means
the Deposit Agreement dated as of the date hereof between Wells Fargo Bank
Northwest, National Association, as Escrow Agent, and Credit Suisse, New York
Branch, as Depositary, pertaining to the Class A Certificates, as the same
may be amended, modified or supplemented from time to time in accordance with
the terms thereof.
“Depositary”
has
the
meaning assigned to such term in the Deposit Agreement.
“Deposits”
has
the
meaning assigned to such term in the Deposit Agreement.
“Downgrade
Advance”
means
an Advance made pursuant to Section 2.02(c).
“Downgrade
Event”
means
a
downgrading of the Guarantor’s short-term unsecured debt rating or short-term
issuer credit rating (as applicable) issued by either Rating Agency below the
applicable Threshold Rating or the Guarantee ceases to be in full force and
effect or becomes invalid or unenforceable or the Guarantor denies its liability
thereunder.
“Effective
Date”
has
the
meaning specified in Section 4.01. The delivery of the certificate of the
Liquidity Provider contemplated by Section 4.01(e) shall be conclusive
evidence that the Effective Date has occurred.
“Excluded
Taxes”
means
(i) taxes imposed on the overall net income of the Liquidity Provider or of
its Facility Office by the jurisdiction where such Liquidity Provider’s
principal office or such Facility Office is located, and (ii) Excluded
Withholding Taxes.
“Excluded
Withholding Taxes”
means
(i) withholding Taxes imposed by the United States except to the extent
that such United States withholding Taxes are imposed or increased as a result
of any change in applicable law (excluding from change in applicable law for
this purpose a change in an applicable treaty or other change in law affecting
the applicability of a treaty) after the date hereof, or in the case of a
successor Liquidity Provider (including a transferee of an Advance) or Facility
Office, after the date on which such successor Liquidity Provider obtains its
interest or on which the Facility Office is changed, and (ii) any
withholding Taxes imposed by the United States which are imposed or increased
as
a result of the Liquidity Provider failing to deliver to the Borrower any
certificate or document (which certificate or document in the good faith
judgment of the Liquidity Provider it is legally entitled to provide) which
is
reasonably requested by the Borrower to establish that payments under this
Agreement are exempt from (or entitled to a reduced rate of) withholding
Tax.
“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.
“Expiry
Date”
means
the “Initial Expiry Date” specified in item 2 of Schedule A, initially, or
any date to which the Expiry Date is extended pursuant to
Section 2.10.
“Facility
Office”
means
the office of the Liquidity Provider presently located at Bethel, Connecticut,
or such other office as the Liquidity Provider from time to time shall notify
the Borrower as its Facility Office hereunder; provided that the Liquidity
Provider shall not change its Facility Office to another Facility Office outside
the United States of America except in accordance with Section 3.01, 3.02
or 3.03 hereof.
“Final
Advance”
means
an Advance made pursuant to Section 2.02(d).
“GAAP”
means
generally accepted accounting principles as set forth in the statements of
financial accounting standards issued by the Financial Accounting Standards
Board of the
American
Institute of Certified Public Accountants, as such principles may at any time
or
from time to time be varied by any applicable financial accounting rules or
regulations issued by the Securities and Exchange Commission and, with respect
to any person, shall mean such principles applied on a basis consistent with
prior periods except as may be disclosed in such person’s financial
statements.
“Guarantee
Agreement”
has
the
meaning assigned to such term in the recitals to this Agreement.
“Guarantor”
has
the
meaning assigned to such term in the recitals to this Agreement.
“Intercreditor
Agreement”
means
the Intercreditor Agreement dated as of the date hereof among the Trustees,
the
Liquidity Provider, the liquidity provider under the other Liquidity Facility
and the Subordination Agent, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
“Interest
Advance”
means
an Advance made pursuant to Section 2.02(a).
“Interest
Period”
means,
with respect to any LIBOR Advance, each of the following periods:
(i) the
period beginning on the third LIBOR Business Day following either (x) the
date of the Liquidity Provider’s receipt of the Notice of Borrowing for such
LIBOR Advance or (y) the date of the withdrawal of funds from the
Class A Cash Collateral Account for the purpose of paying interest on the
Class A Certificates as contemplated by Section 2.06(a) hereof and, in
either case, ending on the next Regular Distribution Date (or, if such day
is
not a Business Day, the next succeeding Business Day); and
(ii) each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the next Regular Distribution Date (or, if such
day is not a Business Day, the next succeeding Business Day);
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 LIBOR 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 (or, if such day is not
a Business Day, the next succeeding Business Day) following such conversion
(in
the case of clause (y) above).
“LIBOR
Advance”
means
an Advance bearing interest at a rate based upon the LIBOR Rate.
“LIBOR
Business Day”
means
any day on which dealings in dollars are carried on in the London interbank
market.
“LIBOR
Rate”
means,
with respect to any Interest Period,
(i) the
rate
per annum appearing on display page Reuters Screen LIBOR01 Page (or any
successor or substitute therefor) at approximately 11:00 a.m. (London time)
two LIBOR 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 LIBOR
Business Days before the first day of such Interest Period in an amount
approximately equal to the principal amount of the LIBOR Advance to which such
Interest Period is to apply and for a period comparable to such Interest
Period.
“Liquidity
Event of Default”
means
the occurrence of either (a) the Acceleration of all of the Equipment Notes
(provided that, with respect to the period prior to the Delivery Period Expiry
Date, such Equipment Notes have an aggregate outstanding principal balance
in
excess of the amount specified in item 3 on Schedule A or (b) a Continental
Bankruptcy Event.
“Liquidity
Indemnitee”
means
(i) the Liquidity Provider, (ii) the Guarantor, (iii) the directors,
officers, employees and agents of the Liquidity Provider and the Guarantor,
and
(iv) the successors and permitted assigns of the persons described in
clauses (i), (ii) and (iii) inclusive.
“Liquidity
Provider”
has
the
meaning assigned to such term in the recital of parties to this
Agreement.
“Maximum
Available Commitment”
means,
subject to the proviso contained in the third sentence of Section 2.02(a),
at any time of determination, (a) the Maximum Commitment at such time less
(b) the aggregate amount of each Interest Advance outstanding at such time;
provided that following a Provider Advance or a Final Advance, the Maximum
Available Commitment shall be zero.
“Maximum
Commitment”
means
initially the amount specified in item 4 on Schedule A, as such amount may
be
reduced from time to time in accordance with Section 2.04(a).
“Non-Excluded
Tax”
has
the
meaning specified in Section 3.03.
“Non-Extension
Advance”
means
an Advance made pursuant to Section 2.02(b).
“Notice
of Borrowing”
has
the
meaning specified in Section 2.02(e).
“Notice
of Replacement Subordination Agent”
has
the
meaning specified in Section 3.08.
“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 the date specified in item 5 on Schedule
A
relating to the Certificates, as such Prospectus Supplement may be amended
or
supplemented.
“Provider
Advance”
means
a
Downgrade Advance or a Non-Extension Advance.
“Regulatory
Change”
has
the
meaning assigned to such term in Section 3.01.
“Replenishment
Amount”
has
the
meaning assigned to such term in Section 2.06(b).
“Required
Amount”
means,
for any day, the sum of the aggregate amount of interest, calculated at the
rate
per annum equal to the Stated Interest Rate for the Class A Certificates,
that would be payable on the Class A Certificates on each of the three
successive semi-annual Regular Distribution Dates immediately following such
day
or, if such day is a Regular Distribution Date, on such day and the succeeding
two semi-annual Regular Distribution Dates, in each case calculated on the
basis
of the Pool Balance of the Class A Certificates on such day and without regard
to expected future distributions of principal on the Class A
Certificates.
“Successor
Trust”
means
Continental Airlines Pass Through Trust 2007-1A-S.
“Termination
Date”
means
the earliest to occur of the following: (i) the Expiry Date; (ii) the
date on which the Borrower delivers to the Liquidity Provider a certificate,
signed by a Responsible Officer of the Borrower, certifying that all of the
Class A Certificates have been paid in full (or provision has been made for
such payment in accordance with the Intercreditor Agreement and the Trust
Agreements) or are otherwise no longer entitled to the benefits of this
Agreement; (iii) the date on which the Borrower delivers to the Liquidity
Provider a certificate, signed by a Responsible Officer of the Borrower,
certifying that a Replacement Liquidity Facility has been substituted for this
Agreement in full pursuant to Section 3.5(e) of the Intercreditor
Agreement; (iv) the fifth Business Day following the receipt by the
Borrower of a Termination Notice from the Liquidity Provider pursuant to
Section 6.01 hereof; and (v) the date on which no Advance is or may
(including by reason of reinstatement as herein provided) become available
for a
Borrowing hereunder.
“Termination
Notice”
means
the Notice of Termination substantially in the form of Annex V to this
Agreement.
“Transferee”
has
the
meaning assigned to such term in Section 7.08(b).
“Unapplied
Downgrade Advance”
means
any Downgrade Advance other than an Applied Downgrade Advance.
“Unapplied
Non-Extension Advance”
means
any Non-Extension Advance other than an Applied Non-Extension
Advance.
“Unapplied
Provider Advance”
means
any Provider Advance other than an Applied Provider Advance.
“Unpaid
Advance”
has
the
meaning assigned to such term in Section 2.05.
(b) Terms
Defined in the Intercreditor Agreement.
For all
purposes of this Agreement, the following terms shall have the respective
meanings assigned to such terms in the Intercreditor Agreement:
“Acceleration”,
“Aircraft”,
“Certificate”,
“Class
A Certificates”,
“Class
A Cash Collateral Account”,
“Class
A Trust”,
“Class
A Trust Agreement”,
“Class
A Trustee”,
“Class
B Certificates”,
“Class
C Certificates”,
“Closing
Date”,
“Continental”,
“Continental
Bankruptcy Event”,
“Controlling
Party”,
“Corporate
Trust Office”,
“Delivery
Period Expiry Date”,
“Distribution
Date”,
“Downgraded
Facility”,
“Equipment
Notes”,
“Fee
Letter”,
“Final
Legal Distribution Date”,
“Financing
Agreement”,
“Investment
Earnings”,
“Liquidity
Facility”,
“Liquidity
Obligations”,
“Loan
Trustee”,
“Non-Extended
Facility”,
“Note
Purchase Agreement”,
“Operative
Agreements”,
“Participation
Agreement”,
“Performing
Equipment Note”,
“Person”,
“Pool
Balance”,
“Rating
Agencies”,
“Regular
Distribution Date”,
“Replacement
Liquidity Facility”,
“Responsible
Officer”,
“Scheduled
Payment”,
“Special
Payment”,
“Stated
Interest Rate”,
“Subordination
Agent”,
“Taxes”,
“Threshold
Rating”,
“Transfer”,
“Trust
Agreement”,
“Trustee”,
“Underwriters”,
“Underwriting
Agreement”,
and
“Written
Notice”.
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 on the Class A Certificates at the Stated Interest Rate therefor
in accordance with Section 3.5(a) of the Intercreditor Agreement. Each
Interest Advance made hereunder shall automatically reduce the Maximum Available
Commitment and the amount available to be borrowed hereunder by subsequent
Advances by the amount of such Interest Advance (subject to reinstatement as
provided in the next sentence). Upon repayment to the Liquidity Provider in
full
of the amount of any Interest Advance made pursuant to this
Section 2.02(a), together with accrued interest thereon (as provided
herein), the Maximum Available Commitment shall be reinstated by the
amount
of
such repaid Interest Advance but not to exceed the Maximum Commitment; provided,
however, that the Maximum Available Commitment shall not be so reinstated at
any
time if (x) (i) a Liquidity Event of Default shall have occurred and be
continuing and (ii) there is a Performing Note Deficiency or (y) a Final
Advance, a Downgrade Advance or a Non-Extension Advance shall have been made
or
an Interest Advance shall have been converted into a Final Advance.
(b) A
Non-Extension Advance shall be made in a single Borrowing if this Agreement
is
not extended in accordance with Section 3.5(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 3.5(d) within the time period specified in such Section) 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 Class A
Cash Collateral Account in accordance with said Section 3.5(d) and
Section 3.5(f) of the Intercreditor Agreement.
(c) A
Downgrade Advance shall be made in a single Borrowing upon the occurrence of
a
Downgrade Event (as provided for in Section 3.5(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 said
Section 3.5(c), by delivery to the Liquidity Provider of a written and
completed Notice of Borrowing in substantially the form of Annex III
attached hereto, signed by a Responsible Officer of the Borrower, in an amount
equal to the Maximum Available Commitment at such time, and shall be used to
fund the Class A Cash Collateral Account in accordance with said
Section 3.5(c) and Section 3.5(f) of the Intercreditor Agreement. Upon
the occurrence of a Downgrade Event, the Liquidity Provider shall promptly
deliver notice thereof to the Borrower, the Class A Trustee and
Continental.
(d) A
Final
Advance shall be made in a single Borrowing upon the receipt by the Borrower
of
a Termination Notice from the Liquidity Provider pursuant to Section 6.01
hereof by delivery to the Liquidity Provider of a written and completed Notice
of Borrowing in substantially the form of Annex IV attached hereto, signed
by a Responsible Officer of the Borrower, in an amount equal to the Maximum
Available Commitment at such time, and shall be used to fund the Class A
Cash Collateral Account (in accordance with Sections 3.5(f) and 3.5(i) of
the Intercreditor Agreement).
(e) Each
Borrowing shall be made on notice in writing (a “Notice
of Borrowing”)
in
substantially the form required by Section 2.02(a), 2.02(b), 2.02(c) or
2.02(d), as the case may be, given by the Borrower to the Liquidity Provider.
If
a Notice of Borrowing is delivered by the Borrower in respect of any Borrowing
no later than 1:00 p.m. (New York City time) on a Business Day, upon
satisfaction of the conditions precedent set forth in Section 4.02 with
respect to a requested Borrowing, the Liquidity Provider shall make available
to
the Borrower, in accordance with its payment instructions, the amount of such
Borrowing in U.S. dollars and immediately available funds, before 4:00 p.m.
(New York City time) on such Business Day or on such later Business Day
specified in such Notice of Borrowing. If a Notice of Borrowing is delivered
by
the Borrower in respect of any Borrowing on a day that is not a Business Day
or
after 1:00 p.m. (New York City time) on a Business Day, upon satisfaction
of the conditions
precedent
set forth in Section 4.02 with respect to a requested Borrowing, the
Liquidity Provider shall make available to the Borrower, in accordance with
its
payment instructions, the amount of such Borrowing in U.S. dollars and in
immediately available funds, before 12:00 Noon (New York City time) on the
first
Business Day next following the day of receipt of such Notice of Borrowing
or on
such later Business Day specified by the Borrower in such Notice of Borrowing.
Payments of proceeds of a Borrowing shall be made by wire transfer of
immediately available funds to the Borrower in accordance with such wire
transfer instructions as the Borrower shall furnish from time to time to the
Liquidity Provider for such purpose. Each Notice of Borrowing shall be
irrevocable and binding on the Borrower. Each Notice of Borrowing shall be
effective upon delivery of a copy thereof to the Liquidity Provider at the
address specified pursuant to Section 7.02.
(f) Upon
the
making of any Advance requested pursuant to a Notice of Borrowing, in accordance
with the Borrower’s payment instructions, the Liquidity Provider shall be fully
discharged of its obligation hereunder with respect to such Notice of Borrowing,
and the Liquidity Provider shall not thereafter be obligated to make any further
Advances hereunder in respect of such Notice of Borrowing to the Borrower or
to
any other Person. If the Liquidity Provider makes an Advance requested pursuant
to a Notice of Borrowing before 12:00 Noon (New York City time) on the second
Business Day after the date of payment specified in said Section 2.02(e),
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),
(c) or (d) hereof to fund the Class A Cash Collateral Account,
the Liquidity Provider shall have no interest in or rights to the Class A
Cash Collateral Account, the funds constituting such Advance or any other
amounts from time to time on deposit in the Class A 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 3.5(e) or (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 Accounts 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 in the Pool Balance of the Class A 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.
Upon
the making of any Provider Advance or the making of or conversion to a Final
Advance hereunder or the occurrence of the Termination Date, the obligation
of
the Liquidity Provider to make further Advances hereunder shall automatically
and irrevocably terminate, and the Borrower shall not be entitled to request
any
further Borrowing hereunder.
Section
2.05 Repayments
of Interest Advances or the Final Advance.
Subject
to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby agrees, without
notice of an Advance or demand for repayment from the Liquidity Provider (which
notice and demand are hereby waived by the Borrower), to pay, or to cause to
be
paid, to the Liquidity Provider on each date on which the Liquidity Provider
shall make an Interest Advance or the Final Advance, an amount equal to
(a) the amount of such Advance (any such Advance, until repaid, is referred
to herein as an “Unpaid
Advance”)
(if
multiple Interest Advances are outstanding any such repayment to be applied
in
the order in which such Interest Advances have been made, starting with the
earliest), plus (b) interest on the amount of each such Unpaid Advance as
provided in Section 3.07 hereof; provided that if (i) the Liquidity
Provider shall make a Provider Advance at any time after making one or more
Interest Advances which shall not have been repaid in accordance with this
Section 2.05 or (ii) this Liquidity Facility shall become a Downgraded
Facility or Non-Extended Facility at any time when unreimbursed Interest
Advances have reduced the Maximum Available Commitment to zero, then such
Interest Advances shall cease to constitute Unpaid Advances and shall be deemed
to have been changed into an Applied Downgrade Advance or an Applied
Non-Extension Advance, as the case may be, for all purposes of this Agreement
(including, without limitation, for the purpose of determining when such
Interest Advance is required to be repaid to the Liquidity Provider in
accordance with Section 2.06 and for the purposes of Section 2.06(b)).
The Borrower and the Liquidity Provider agree that the repayment in full of
each
Interest Advance and Final Advance on the date such Advance is made is intended
to be a contemporaneous exchange for new value given to the Borrower by the
Liquidity Provider.
Section
2.06 Repayments
of Provider Advances.
(a) Amounts
advanced hereunder in respect of a Provider Advance shall be deposited in the
Class A Cash Collateral Account, invested and withdrawn from the
Class A Cash Collateral Account as set forth in Sections 3.5(c), (d)
and (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; provided,
however,
that
amounts in respect of a Provider Advance withdrawn from the Class A Cash
Collateral Account for the purpose of paying interest on the Class A
Certificates in accordance with Section 3.5(f) of the Intercreditor
Agreement (the amount of any such withdrawal being (y) in the case of a
Downgrade Advance, an “Applied
Downgrade Advance”
and
(z) in the case of a Non-Extension Advance, an “Applied
Non-Extension Advance”
and,
together with an Applied Downgrade Advance, an “Applied
Provider Advance”)
shall
thereafter (subject to Section 2.06(b)) be treated as an Interest Advance
under this Agreement for purposes of determining the Applicable Liquidity Rate
for interest payable thereon and the dates on which such interest is payable;
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 dates on which such interest
is payable and as an Applied Downgrade Advance or Applied Non-Extension Advance,
as the case may be, for the purposes of Section 2.6(c) of the Intercreditor
Agreement. Subject to Sections 2.07 and 2.09 hereof, immediately upon the
withdrawal of any amounts from the Class A Cash Collateral Account on
account of a reduction in the Required Amount, the Borrower shall repay to
the
Liquidity Provider a portion of the Provider Advances in a principal amount
equal to 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 Class A Cash Collateral Account of any amount
pursuant to clause “fourth”
of
Section 3.2 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 (if multiple Applied Provider Advances are outstanding,
such Replenishment Amount to be applied in the order in which such Applied
Provider Advances have been made, starting with the earliest) 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 3.5(e) of the Intercreditor Agreement, amounts
remaining on deposit in the Class A Cash Collateral Account after giving
effect to any Applied Provider Advance on the date of such replacement shall
be
reimbursed to the Liquidity Provider, but only to the extent such amounts are
necessary to repay in full to the Liquidity Provider all amounts owing to it
hereunder.
Section
2.07 Payments
to the Liquidity Provider Under the Intercreditor Agreement.
In
order to provide for payment or repayment to the Liquidity Provider of any
amounts hereunder, the Intercreditor Agreement provides that amounts available
and 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 3.5(f) of
the Intercreditor Agreement), shall be paid to the Liquidity Provider in
accordance with the terms thereof. Amounts so paid to the Liquidity Provider
shall be applied by the Liquidity Provider to Liquidity Obligations then due
and
payable in accordance with the Intercreditor Agreement and shall discharge
in
full the corresponding obligations of the Borrower hereunder (or, if not
provided for in the Intercreditor Agreement, then in such manner as the
Liquidity Provider shall deem appropriate).
Section
2.08 Book
Entries.
The
Liquidity Provider shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower resulting from
Advances made from time to time and the amounts of principal and interest
payable hereunder and paid from time to time in respect thereof; provided,
however, that the failure by
the
Liquidity Provider to maintain such account or accounts shall not affect the
obligations of the Borrower in respect of Advances.
Section
2.09 Payments
from Available Funds Only.
All
payments to be made by the Borrower under this Agreement, including, without
limitation, Sections 7.05 and 7.07, shall be made only from the amounts that
constitute Scheduled Payments, Special Payments or payments under
Section 8.1 of the Participation Agreements with respect to Aircraft and
payments under 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 provisions set forth in the
Intercreditor Agreement. The Liquidity Provider agrees that it will look solely
to such amounts in respect of payments to be made by the Borrower hereunder
to
the extent available for distribution to it as provided in the Intercreditor
Agreement and this Agreement and that the Borrower, in its individual capacity,
is not personally liable to it for any amounts payable or liability under this
Agreement except as expressly provided in this Agreement, the Intercreditor
Agreement or any Participation Agreement. Amounts on deposit in the Class A
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 3.5(f) of the Intercreditor Agreement.
Section
2.10 Extension
of the Expiry Date; Non-Extension Advance.
No
earlier than the 60th day and no later than the 40th day prior to the then
effective Expiry Date (unless such Expiry Date is on or after the date that
is
15 days after the Final Legal Distribution Date for the Class A
Certificates), the Borrower shall request that the Liquidity Provider extend
the
Expiry Date to the earlier of (i) the date that is 15 days after the Final
Legal Distribution Date for the Class A Certificates and (ii) the date
that is the day immediately preceding the 364th day occurring after the last
day
of the Consent Period (as hereinafter defined). Whether or not the Borrower
has
made such request, the Liquidity Provider shall advise the Borrower no earlier
than the 40th day (or, if earlier, the date of the Liquidity Provider’s receipt
of such request, if any, from the Borrower) and no later than the 25th day
prior
to the then effective Expiry Date (such period, the “Consent
Period”),
whether, in its sole discretion, it agrees to so extend the Expiry Date. If
the
Liquidity Provider advises the Borrower on or before the date on which the
Consent Period ends that such Expiry Date shall not be so extended, or fails
to
irrevocably and unconditionally advise the Borrower on or before the date on
which the Consent Period ends that such Expiry Date shall be so extended (and,
in each case, if the Liquidity Provider shall not have been replaced in
accordance with Section 3.5(e) of the Intercreditor Agreement), the
Borrower shall be entitled on and after the date on which the Consent Period
ends (but prior to the then effective Expiry Date) to request a Non-Extension
Advance in accordance with Section 2.02(b) hereof and Section 3.5(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 monetary authority
charged with the interpretation or administration thereof (a “Regulatory
Change”),
which: (1) changes the basis of taxation of any amounts payable to the
Liquidity Provider under this Agreement in respect of any such Advances or
such
obligation (other than Excluded Taxes); or (2) imposes or modifies any
reserve, special deposit, compulsory loan or similar requirements relating
to
any extensions of credit or other assets of, or any deposits with other
liabilities of, the Liquidity Provider (including any such Advances or such
obligation or any deposits referred to in the definition of LIBOR Rate or
related definitions). The Liquidity Provider agrees to use reasonable efforts
(consistent with applicable legal and regulatory restrictions) to change the
jurisdiction of its Facility Office if making such change would avoid the need
for, or reduce the amount of, any amount payable under this Section that
may thereafter accrue and would not, in the reasonable judgment of the Liquidity
Provider, be otherwise disadvantageous to the Liquidity Provider.
The
Liquidity Provider will notify the Borrower of any event occurring after the
date of this Agreement that will entitle the Liquidity Provider to compensation
pursuant to this Section 3.01 as promptly as practicable after it obtains
knowledge thereof and determines to request such compensation, which notice
shall describe in reasonable detail the calculation of the amounts owed under
this Section. Determinations by the Liquidity Provider for purposes of this
Section 3.01 of the effect of any Regulatory Change on its costs of making
or maintaining Advances or on amounts receivable by it in respect of Advances,
and of the additional amounts required to compensate the Liquidity Provider
in
respect of any Additional Costs, shall be prima facie evidence of the amount
owed under this Section.
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, after the date hereof, of any applicable governmental
law, rule or regulation regarding capital adequacy, (2) any change, after
the date hereof, in the interpretation or administration of any such law, rule
or regulation by any central bank or other governmental authority charged with
the interpretation or administration thereof or (3) compliance by the
Liquidity Provider or any corporation or bank controlling the Liquidity Provider
with any applicable guideline or request of general applicability, issued after
the date hereof, by any central bank or other governmental authority (whether
or
not having the force of law) that constitutes a change of the nature described
in clause (2), has the effect of (x) requiring an increase in the
amount of capital required to be maintained by the Liquidity Provider or any
corporation or bank controlling the Liquidity Provider, or (y) reducing the
rate
of
return
on
assets or capital of the Liquidity Provider (or such corporation or bank) and
such adoption, change or compliance, as the case may be, relates to a category
of claims or assets that includes the Liquidity Provider’s obligations hereunder
and other similar obligations, the Borrower shall, subject to the provisions
of
the next paragraph, 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 or reduction as shall be reasonably
allocable to the Liquidity Provider’s obligations to the Borrower hereunder. For
the avoidance of doubt, the proposals of The Basel Committee on Banking
Supervision relating to capital adequacy rules commonly known as Basel II will
not be treated for purposes of determining whether the Liquidity Provider (or
any corporation or bank controlling the Liquidity Provider) is entitled to
compensation under this Section 3.02 as having been adopted or having come
into
effect before the date hereof, which rules shall be determined to be adopted
only when the national banking authorities, or other relevant administrative
or
legislative bodies having primary jurisdiction or regulatory authority over
the
Liquidity Provider (or any corporation or bank controlling the Liquidity
Provider), adopt Basel II in the primary jurisdiction of the Liquidity Provider.
The Liquidity Provider agrees to use reasonable efforts (consistent with
applicable legal and regulatory restrictions) to change the jurisdiction of
its
Facility Office if making such change would avoid the need for, or reduce the
amount of, any amount payable under this Section that may thereafter accrue
and
would not, in the reasonable judgment of the Liquidity Provider, be otherwise
materially disadvantageous to the Liquidity Provider.
The
Liquidity Provider will notify the Borrower of any event occurring after the
date of this Agreement that will entitle the Liquidity Provider to compensation
pursuant to this Section 3.02 as promptly as practicable after it obtains
knowledge thereof and determines to request such compensation, which notice
shall describe in reasonable detail the calculation of the amounts owed under
this Section. Determinations by the Liquidity Provider for purposes of this
Section 3.02 of the effect of any increase in the amount of capital
required to be maintained by the Liquidity Provider and of the amount allocable
to the Liquidity Provider’s obligations to the Borrower hereunder shall be
conclusive evidence of the amounts owed under this Section, absent manifest
error.
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 for or on account of, any present or future stamp
or
other taxes, levies, imposts, duties, charges, fees, deductions, withholdings,
restrictions or conditions of any nature whatsoever now or hereafter imposed,
levied, collected, withheld or assessed, excluding Excluded Taxes (such
non-excluded taxes being referred to herein, collectively, as “Non-Excluded
Taxes”
and
each, individually, as a “Non-Excluded
Tax”).
If
any Non-Excluded Taxes are required to be withheld from any amounts payable
to
the Liquidity Provider under this Agreement, (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 Non-Excluded Taxes
(and any additional Non-Excluded 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) the amounts so payable to the
Liquidity Provider shall be increased to the extent necessary to yield to the
Liquidity Provider (after payment of all Non-Excluded Taxes) interest or any
other such amounts payable under this Agreement at the rates or in the amounts
specified in this Agreement. The Liquidity Provider agrees to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Facility Office if making such
change would avoid the need for, or reduce the amount of, any such additional
amounts that may thereafter accrue and would not, in the reasonable judgment
of
the Liquidity Provider, be otherwise disadvantageous to the Liquidity Provider.
From time to time upon the reasonable request of the Borrower, the Liquidity
Provider agrees to provide to the Borrower two original Internal Revenue Service
Forms 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. Within 30 days after
the
date of each payment hereunder, the Borrower shall furnish to the Liquidity
Provider the original or a certified copy of (or other documentary evidence
of)
the payment of the Non-Excluded Taxes applicable to such payment.
(b) All
payments (including, without limitation, 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. If any Taxes are required to be
withheld or deducted from any amounts payable to the Borrower under this
Agreement, 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) will be sufficient
to yield to the Borrower the full amount which would have been received by
it
had no such withholding or deduction been made. Within 30 days after the date
of
each payment hereunder, the Liquidity Provider shall furnish to the Borrower
the
original or a certified copy of (or other documentary evidence of) the payment
of the Taxes applicable to such payment.
(c) If
any
exemption from, or reduction in the rate of, any Taxes 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 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 lawful money of the United States
of America, to the Liquidity Provider in immediately available funds, by wire
transfer to the account specified for the Liquidity Provider in Schedule
B.
Section
3.05 Computations.
All
computations of interest based on the Base Rate shall be made on the basis
of a
year of 365 or 366 days, as the case may be, and all computations of interest
based on the LIBOR Rate shall be made on the basis of a year of 360 days, in
each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest is
payable.
Section
3.06 Payment
on Non-Business Days.
Whenever any payment to be made hereunder to the Liquidity Provider shall be
stated to be due on a day other than a Business Day, such payment shall be
made
on the next succeeding Business Day and no additional interest shall be due
as a
result. If any payment in respect of interest on an Advance is so deferred
to
the next succeeding Business Day, such deferral shall not delay the commencement
of the next Interest Period for such Advance (if such Advance is a LIBOR
Advance) or reduce the number of days for which interest will be payable on
such
Advance on the next interest payment date for such Advance.
Section
3.07 Interest.
(a) Subject
to Section 2.09, the Borrower shall pay, or shall cause to be paid, without
duplication, interest on (i) the unpaid principal amount of each Advance
from and including the date of such Advance (or, in the case of an Applied
Provider Advance, from and including the date on which the amount thereof was
withdrawn from the Class A Cash Collateral Account to pay interest on the
Class A Certificates) to but excluding the date such principal amount shall
be paid in full (or, in the case of an Applied Provider Advance, the date on
which the Class A Cash Collateral Account is fully replenished in respect
of such Advance) and (ii) any other amount due hereunder (whether fees,
commissions, expenses or other amounts or, to the extent permitted by law,
installments of interest on Advances or any such other amount) which is not
paid
when due (whether at stated maturity, by acceleration or otherwise) from and
including the due date thereof to but excluding the date such amount is paid
in
full, in each such case, at a fluctuating interest rate per annum for each
day
equal to the Applicable Liquidity Rate (as defined below) for such Advance
or
such other amount as in effect for such day, but in no event at a rate per
annum
greater than the maximum rate permitted by applicable law; provided,
however,
that,
if at any time the otherwise applicable interest rate as set forth in this
Section 3.07 shall exceed the maximum rate permitted by applicable law,
then any subsequent reduction in such interest rate will not reduce the rate
of
interest payable pursuant to this Section 3.07 below the maximum rate
permitted by applicable law until the total amount of interest accrued equals
the amount of interest that would have accrued if such otherwise applicable
interest rate as set forth in this Section 3.07 had at all times been in
effect.
(b) Except
as
provided in clause (e) below, each Advance (including, without limitation,
each outstanding Unapplied Downgrade Advance) will be either a Base Rate Advance
or a LIBOR Advance as provided in this Section. Each such Advance will be a
Base
Rate Advance for the period from the date of its borrowing to (but excluding)
the third LIBOR 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 the LIBOR Rate for such Interest Period plus the Applicable
Margin for such LIBOR Advance, payable in arrears on the last day of such
Interest Period and, in the event of the payment of principal of such LIBOR
Advance on a day other than such last day, on the date of such payment (to
the
extent of interest accrued on the amount of principal repaid).
(d) Each
Base
Rate Advance shall bear interest at a rate per annum equal to the Base Rate
plus
the Applicable Margin for such Base Rate Advance, payable in arrears on each
Regular Distribution Date and, in the event of the payment of principal of
such
Base Rate Advance on a day other than a Regular Distribution Date, on the date
of such payment (to the extent of interest accrued on the amount of principal
repaid).
(e) Each
outstanding Unapplied Non-Extension Advance and Unapplied Downgrade Advance
shall bear interest in an amount equal to the Investment Earnings on amounts
on
deposit in the Class A Cash Collateral Account plus the Applicable Margin
for such Unapplied Non-Extension Advance on the amount of such Unapplied
Non-Extension Advance or Unapplied Downgrade Advance from time to time, payable
in arrears on each Regular Distribution Date.
(f) Each
amount not paid when due hereunder (whether fees, commissions, expenses or
other
amounts or, to the extent permitted by applicable law, installments of interest
on Advances but excluding Advances) shall bear interest at a rate per annum
equal to the Base Rate plus 2.00% per annum until paid.
(g) Each
change in the Base Rate shall become effective immediately. The rates of
interest specified in this Section 3.07 with respect to any Advance or
other amount shall be referred to as the “Applicable Liquidity
Rate”.
Section
3.08 Replacement
of Borrower.
From
time to time and subject to the successor Borrower’s meeting the eligibility
requirements set forth in Section 6.9 of the Intercreditor Agreement
applicable to the Subordination Agent, upon the effective date and time
specified in a written and completed Notice of Replacement Subordination Agent
in substantially the form of Annex VI attached hereto (a “Notice
of Replacement Subordination Agent”)
delivered to the Liquidity Provider by the then Borrower, the successor Borrower
designated therein shall be substituted for the Borrower for all purposes
hereunder.
Section
3.09 Funding
Loss Indemnification.
The
Borrower shall pay to the Liquidity Provider, upon the request of the Liquidity
Provider, such amount or amounts as shall be sufficient (in the reasonable
opinion of the Liquidity Provider) to compensate it for any loss, cost, or
expense incurred by reason of the liquidation or redeployment of deposits or
other funds
acquired
by the Liquidity Provider to fund or maintain any LIBOR Advance (but excluding
loss of anticipated profits) incurred as a result of:
(1) Any
repayment of a LIBOR Advance on a date other than the last day of the Interest
Period for such Advance; or
(2) Any
failure by the Borrower to borrow a LIBOR Advance on the date for borrowing
specified in the relevant notice under Section 2.02.
Calculation
of all amounts payable to the Liquidity Provider under this Section 3.09 shall
be made as though the Liquidity Provider had actually funded the related LIBOR
Advance through the purchase of a LIBOR deposit bearing interest at the LIBOR
Rate in an amount equal to its LIBOR Advance and having a maturity comparable
to
the relevant Interest Period; provided however, that the Liquidity Provider
may
fund any LIBOR Advance in any manner it sees fit and the foregoing assumptions
shall be utilized only for the purposes of calculating amounts payable under
this Section 3.09.
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 Facility 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 Facility Office) to maintain or fund its LIBOR Advances, then
upon notice to the Borrower by the Liquidity Provider, the outstanding principal
amount of the LIBOR Advances shall be converted to Base Rate Advances
(a) immediately upon demand of the Liquidity Provider, if such change or
compliance with such request, in the judgment of the Liquidity Provider,
requires immediate repayment; or (b) at the expiration of the last Interest
Period to expire before the effective date of any such change or request. The
Liquidity Provider agrees to use reasonable efforts (consistent with applicable
legal and regulatory restrictions) to change the jurisdiction of its Facility
Office if making such change would avoid or cure the aforesaid illegality and
would not, in the reasonable judgment of the Liquidity Provider, be otherwise
disadvantageous to 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 the Borrower;
(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 executed and delivered
on or
before the Closing Date (other than this Agreement, the Guarantee Agreement,
the
Fee Letter and the Intercreditor Agreement);
(iv) A
copy of
the Prospectus Supplement and specimen copies of the Class A
Certificates;
(v) An
executed copy of each document, instrument, certificate and opinion delivered
on
or before the Closing Date pursuant to the Class A Trust Agreement, the
Note Purchase Agreement, the Intercreditor Agreement and the other Operative
Agreements (in the case of each such opinion, other than the opinion of counsel
for the Underwriters, 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 Trustees, the Borrower and the Liquidity Provider created
by
the Operative Agreements executed and delivered on or before the Closing
Date;
(vii) An
agreement from Continental, pursuant to which (i) Continental agrees to
provide to the Liquidity Provider (A) within 90 days after the end of each
of the first three fiscal quarters in each fiscal year of Continental, a
consolidated balance sheet of Continental as of the end of such quarter and
related statements of income and cash flows for the period commencing at the
end
of the previous fiscal year and ending with the end of such quarter, setting
forth in each case in comparative form the corresponding figures for the
corresponding period in the preceding fiscal year, prepared in accordance with
GAAP; provided, that so long as Continental is subject to the reporting
requirements of the Securities Exchange Act of 1934, as amended, a copy of
Continental’s report on Form 10-Q for such fiscal quarter (excluding
exhibits) or a written notice executed by an authorized officer of Continental
that such report has been filed with the Securities and Exchange Commission,
providing a website address at which such report may be accessed and confirming
that the report accessible at such website address conforms to the original
report filed with the Securities and Exchange Commission will satisfy this
subclause (A), and (B) within 120 days after the end of each fiscal
year of Continental, a consolidated balance sheet of Continental as of the
end
of such fiscal year and related statements of income and cash flows of
Continental for such fiscal year, in comparative form with the preceding fiscal
year, prepared in accordance with GAAP, together with a report of Continental’s
independent certified public accountants with respect to their audit of such
financial statements; provided, that so long as Continental is subject to the
reporting requirements of the Securities Exchange Act of 1934, as amended,
a
copy of Continental’s report on Form 10-K for such fiscal year (excluding
exhibits) or a written notice executed by an authorized officer of Continental
that
such
report has been filed with the Securities and Exchange Commission, providing
a
website address at which such report may be accessed and confirming that the
report accessible at such website address conforms to the original report filed
with the Securities and Exchange Commission will satisfy this
subclause (B), and (ii) Continental agrees to allow the Liquidity
Provider to inspect Continental’s books and records regarding such transactions,
and to discuss such transactions with officers and employees of
Continental;
(viii) Legal
opinions from (a) Morris, James, Hitchens & Williams LLC, special counsel to
the Borrower and (b) Hughes Hubbard & Reed LLP, special counsel to
Continental, each in form and substance reasonably satisfactory to the Liquidity
Provider; and
(ix) 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, including, without
limitation, such documentation as the Liquidity Provider may require to satisfy
its “know your customer” policies.
(b) The
following statement shall be true on and as of the Effective Date: no event
has
occurred and is continuing, or would result from the entering into of this
Agreement or the making of any Advance, which constitutes a Liquidity Event
of
Default
(c) The
Liquidity Provider shall have received payment in full of all fees and other
sums required to be paid to or for the account of the Liquidity Provider on
or
prior to the Effective Date.
(d) All
conditions precedent to the issuance of the Certificates under the Trust
Agreements shall have been satisfied or waived, all conditions precedent to
the
effectiveness of the other Liquidity Facility shall have been concurrently
satisfied or waived, and all conditions precedent to the purchase of the
Class A Certificates, the Class B Certificates and the Class C Certificates
by the Underwriters 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 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
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(d) hereof and
Section 3.5(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.
MISCELLANEOUS
Section
7.01 Amendments,
Etc.
No
amendment or waiver of any provision of this Agreement, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless
the
same shall be in writing and signed by the Liquidity Provider, and, in the
case
of an amendment or of a waiver by the Borrower, the Borrower, and then such
waiver or consent shall be effective only in the specific instance and for
the
specific purpose for which given.
Section
7.02 Notices,
Etc.
Except
as otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including telecopier and mailed
or
delivered or sent by telecopier) addressed to the applicable party at its
address specified on Schedule B or to such other address as shall be designated
by such Person in a written notice to the others. All such notices and
communications shall be effective (i) if given by telecopier, when
transmitted to the telecopier number specified above, (ii) if given by
mail, when deposited in the mails addressed as specified above, and
(iii) if given by other means, when delivered at the address specified
above, except that written notices to the Liquidity Provider pursuant to the
provisions of Article II and Article III hereof shall not be effective
until received by the Liquidity Provider. 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 8.1 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, 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, 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,
or (iii) attributable to the failure by such Liquidity Indemnitee or any
other Liquidity Indemnitee to perform or observe any agreement, covenant or
condition on its part to be performed or observed in this Agreement, the
Intercreditor Agreement, the Fee Letter applicable to this Agreement or any
other Operative Agreement to which it is a party. The indemnities contained
in
Section 8.1 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 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 be 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 Class A 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 and in Section 3.05(l) of the Intercreditor Agreement) nor
(except as contemplated by Section 3.08) the Borrower shall have the right
to assign its rights or obligations hereunder or any interest herein without
the
prior written consent of the other party, subject to the requirements of
Section 7.08(b). The Liquidity Provider may grant participations herein or
in any of its rights hereunder (including, without limitation, funded
participations and participations in rights to receive interest payments
hereunder) and under the other Operative Agreements to such Persons (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,
(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 prohibited, unenforceable or not authorized
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition, unenforceability or non-authorization without invalidating
the remaining provisions hereof or affecting the validity, enforceability or
legality of such provision in any other jurisdiction.
Section
7.10 GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE
STATE OF NEW YORK.
Section
7.11 Submission
to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity.
(a) Each
of the parties hereto hereby irrevocably and unconditionally:
(i) submits
for itself and its property in any legal action or proceeding relating to this
Agreement or any other Operative Agreement, or for recognition and enforcement
of any judgment in respect hereof or thereof, to the nonexclusive general
jurisdiction of the courts of the State of New York, the courts of the United
States of America 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 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 Transfer.
The
Liquidity Provider hereby acknowledges and consents to the Transfer contemplated
by the Assignment and Assumption Agreement.
Section
7.16 LIQUIDITY
PROVIDER’S OBLIGATION TO MAKE ADVANCES.
EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE LIQUIDITY
PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER’S RIGHTS TO DELIVER
NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL BE
UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE
STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
Section
7.17 Patriot
Act.
In
compliance with the USA Patriot Act and 31 CFR Part 103.121 and, in the case
of
a non-U.S. entity, any other similar requirements of the relevant foreign
jurisdiction, when requested the Borrower shall provide to the Liquidity
Provider certain information relating to the Borrower that the Liquidity
Provider may be required to obtain and keep on file, including the Borrower’s
name, address and various identifying documents.
IN
WITNESS WHEREOF,
the
parties have caused this Agreement to be duly executed and delivered by their
respective officers thereunto duly authorized as of the date first set forth
above.
|
WILMINGTON
TRUST COMPANY,
not in its individual capacity but solely as Subordination Agent,
as agent
and trustee for the Class A Trust,
as
Borrower
|
||
|
By:
|
||
|
Name:
Title:
|
||
|
RZB
FINANCE LLC,
as
Liquidity Provider
|
||
|
By:
|
||
|
Name:
Title:
|
||
|
By:
|
||
|
Name:
Title:
|
||
CERTAIN
ECONOMIC TERMS
1. Applicable
Margin (Unpaid Advance/Applied Provider Advance): 1.75% per annum.
2. Initial
Expiry Date: April 8, 2008.
3. Liquidity
Event of Default Delivery Period threshold: $450,000,000.
4. Initial
Maximum Commitment: $69,047,532.
5. Prospectus
Supplement date: March 27, 2007.
TO
REVOLVING
CREDIT AGREEMENT
ADMINISTRATION
DETAILS
|
Borrower:
|
WILMINGTON
TRUST COMPANY
|
|
Address:
|
Rodney
Square North
1100
North Market Square
Wilmington,
DE 19890-1605
Attention:
Corporate Capital Market Services
Telephone:
(302) 636-6296
Telecopy:
(302) 636-4140
|
|
Liquidity
Provider:
|
RZB
FINANCE LLC
|
|
Address:
|
24
Grassy Plain Street
Bethel,
CT 06801
Attention:
Mr. Chris Hoedl, Ms. Marta Miller
Telephone:
(203) 207-0115
Telecopy:
(203) 744-6474
|
|
Account
Details:
|
Bank:
Citibank NA
New
York, NY
ABA
#: 021-000-089
Acct.
Name: RZB Finance LLC
Account
#: 3617-7625
Reference:
WTC/Continental
Attn:
Terri Weiner, 212-845-8356
|
INTEREST
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
“Borrower”),
hereby certifies to RZB Finance LLC (the “Liquidity
Provider”),
with
reference to the Revolving Credit Agreement (2007-1A) dated as of April 10,
2007, 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 Class A Certificates which was
payable on ____________, ____ (the “Distribution
Date”)
in
accordance with the terms and provisions of the Class A Trust Agreement and
the Class A 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 respect of the payment of the interest which was due and payable
on the Class A Certificates on the Distribution Date, (ii) does not
include any amount with respect to the payment of principal of, or premium
on,
the Class A Certificates, or principal of, or interest or premium on, the
Class B Certificates and the Class C Certificates, (iii) was
computed in accordance with the provisions of the Class A Certificates, the
Liquidity Agreement, the Class A Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule I),
(iv) does not exceed the Maximum Available Commitment on the date hereof,
(v) does not include any amount of interest which was due and payable on
the Class A 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 3.5(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]
NON-EXTENSION
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
“Borrower”),
hereby certifies to RZB Finance LLC (the “Liquidity
Provider”),
with
reference to the Revolving Credit Agreement (2007-1A) dated as of April 10,
2007, between the Borrower and the Liquidity Provider (the “Liquidity
Agreement”;
the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The
Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The
Borrower is delivering this Notice of Borrowing for the making of the
Non-Extension Advance by the Liquidity Provider to be used for the funding
of
the Class A Cash Collateral Account in accordance with Section 3.5(d)
of the Intercreditor Agreement, which Advance is requested to be made on
__________, ____. The Non-Extension Advance should be transferred to [name
of
bank/wire instructions/ABA number] in favor of account number [ ], reference
[
].
(3) The
amount of the Non-Extension Advance requested hereby (i) is
$_______________.__, which equals the Maximum Available Commitment on the date
hereof and is to be applied in respect of the funding of the Class A Cash
Collateral Account in accordance with Section 3.5(d) of the Intercreditor
Agreement, (ii) does not include any amount with respect to the payment of
the principal of, or premium on, the Class A Certificates, or principal of,
or interest or premium on, the Class B Certificates or the Class C
Certificates, (iii) was computed in accordance with the provisions of the
Class A Certificates, the Liquidity Agreement, the Class A 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 Class A Cash
Collateral Account and apply the same in accordance with the terms of
Section 3.5(d) of the Intercreditor Agreement, (b) no portion of such
amount shall be applied by the Borrower for any other purpose and (c) no
portion of such amount until so applied shall be commingled with other funds
held by the Borrower.
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement,
(A) the making of the Non-Extension Advance as requested by this Notice of
Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement;
and
(B) following the making by the Liquidity Provider of the Non-Extension
Advance requested by this Notice of Borrowing, the Borrower shall not be
entitled to request any further Advances under the Liquidity
Agreement.
IN
WITNESS WHEREOF,
the
Borrower has executed and delivered this Notice of Borrowing as of the ____
day
of _________, ____.
|
WILMINGTON
TRUST COMPANY,
not in its individual capacity but solely as Subordination Agent,
as
Borrower
|
||
|
By:
|
||
|
Name:
Title:
|
||
SCHEDULE I
TO
NON-EXTENSION
ADVANCE NOTICE OF BORROWING
[Insert
copy of computations in accordance with Non-Extension Advance Notice of
Borrowing]
DOWNGRADE
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
“Borrower”),
hereby certifies to RZB
FINANCE LLC
(the
“Liquidity
Provider”),
with
reference to the REVOLVING
CREDIT AGREEMENT (2007-1A)
dated as
of April 10, 2007, 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 Class A
Cash Collateral Account in accordance with Section 3.5(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 Class A Cash
Collateral Account in accordance with Section 3.5(c) of the Intercreditor
Agreement, (ii) does not include any amount with respect to the payment of
the principal of, or premium on, the Class A Certificates, or principal of,
or interest or premium on, the Class B Certificates or the Class C
Certificates, (iii) was computed in accordance with the provisions of the
Class A Certificates, the Liquidity Agreement, the Class A 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 Class A Cash
Collateral Account and apply the same in accordance with the terms of
Section 3.5(c) of the Intercreditor Agreement, (b) no portion of such
amount shall be applied by the Borrower for any other purpose and (c) no
portion of such amount until so applied shall be commingled with other funds
held by the Borrower.
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]
TO
REVOLVING
CREDIT AGREEMENT
FINAL
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
“Borrower”),
hereby certifies to RZB
FINANCE LLC
(the
“Liquidity
Provider”),
with
reference to the REVOLVING
CREDIT AGREEMENT (2007-1A)
dated as
of April 10, 2007, 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 Class A
Cash Collateral Account in accordance with Section 3.5(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 Class A Cash Collateral Account in
accordance with Section 3.5(i) of the Intercreditor Agreement,
(ii) does not include any amount with respect to the payment of principal
of, or premium on, the Class A Certificates, or principal of, or interest
or premium on, the Class B Certificates or the Class C Certificates,
(iii) was computed in accordance with the provisions of the Class A
Certificates, the Liquidity Agreement, the Class A 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 Class A Cash
Collateral Account and apply the same in accordance with the terms of
Section 3.5(i) of the Intercreditor Agreement, (b) no portion of such
amount shall be applied by the Borrower for any other purpose and (c) no
portion of such amount until so applied shall be commingled with other funds
held by the Borrower.
(5) The
Borrower hereby requests that the Advance requested hereby be a Base Rate
Advance [and that such Base Rate Advance be converted into a LIBOR Advance
on
the third Business Day following your receipt of this notice.]
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement,
(A) the making of the Final Advance as requested by this Notice of
Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement;
and
(B) following the making by the Liquidity Provider of the Final Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
IN
WITNESS WHEREOF,
the
Borrower has executed and delivered this Notice of Borrowing as of the ____
day
of _________, ____.
|
WILMINGTON
TRUST COMPANY,
not in its individual capacity but solely as Subordination Agent,
as
Borrower
|
||
|
By:
|
||
|
Name:
Title:
|
||
SCHEDULE I
TO
FINAL
ADVANCE NOTICE OF BORROWING
[Insert
copy of computations in accordance with Final Advance Notice of
Borrowing]
NOTICE
OF TERMINATION
[Date]
Wilmington
Trust Company,
as
Subordination Agent, as Borrower
Rodney
Square North
1100
North Market Square
Wilmington,
DE 19890-0001
Attention:
Corporate Trust Administration
Revolving
Credit Agreement dated as of April 10, 2007 between Wilmington Trust Company,
as
Subordination Agent, as agent and trustee for the Continental Airlines Pass
Through Trust, 2007-1A-[O/S], as Borrower, and RZB Finance LLC (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 3.5(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,
RZB
FINANCE LLC
as
Liquidity Provider
|
||
|
By:
|
||
|
Name:
Title:
|
||
|
By:
|
||
|
Name:
Title:
|
||
cc: Wilmington
Trust Company,
as
Class A Trustee
TO
REVOLVING
CREDIT AGREEMENT
NOTICE
OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving
Credit Agreement dated as of April 10, 2007, between Wilmington Trust Company,
as Subordination Agent, as agent and trustee for the Continental Airlines Pass
Through Trust, 2007-1A-[O/S], as Borrower, and RZB Finance LLC (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 VI
Page 1
Page 1
REVOLVING
CREDIT AGREEMENT
(2007-1B)
dated
as
of April 10, 2007
between
WILMINGTON
TRUST COMPANY,
as
Subordination Agent,
as
Agent
and Trustee for the
Continental
Airlines Pass Through Trust 2007-1B,
as
Borrower
and
RZB
FINANCE LLC,
as
Liquidity Provider
__________________________
Relating
to Continental Airlines
Pass
Through Trust 2007-1B 6.903% Continental Airlines
Pass
Through Certificates, Series 2007-1B
__________________________
Page
i
TABLE
OF CONTENTS
(continued)
Page
|
Section
7.01 Amendments, Etc.
|
22
|
|
Section
7.02 Notices, Etc.
|
22
|
|
Section
7.03 No Waiver; Remedies
|
23
|
|
Section
7.04 Further Assurances
|
23
|
|
Section
7.05 Indemnification; Survival of Certain
Provisions
|
23
|
|
Section
7.06 Liability of the Liquidity
Provider
|
23
|
|
Section
7.07 Costs, Expenses and Taxes
|
24
|
|
Section
7.08 Binding Effect; Participations
|
24
|
|
Section
7.09 Severability
|
26
|
|
Section
7.10 GOVERNING LAW
|
26
|
|
26
|
|
|
Section
7.12 Execution in Counterparts
|
27
|
|
Section
7.13 Entirety
|
27
|
|
Section
7.14 Headings
|
27
|
|
Section
7.15 Transfer
|
27
|
|
Section
7.16 LIQUIDITY PROVIDER’S OBLIGATION TO MAKE
ADVANCES
|
27
|
|
Section
7.17 Patriot Act
|
27
|
|
Schedule
A
|
-
|
||
|
Schedule
B
|
-
|
||
|
Annex
I
|
-
|
||
|
Annex II
|
-
|
||
|
Annex III
|
-
|
||
|
Annex IV
|
-
|
||
|
Annex V
|
-
|
||
|
Annex VI
|
-
|
REVOLVING
CREDIT AGREEMENT (2007-1B)
THIS
REVOLVING CREDIT AGREEMENT (2007-1B)
dated as
of April 10, 2007, between WILMINGTON
TRUST COMPANY,
a
Delaware corporation, not in its individual capacity but solely as Subordination
Agent under the Intercreditor Agreement (each as defined below), as agent and
trustee for the Class B Trust (as defined below) (the “Borrower”),
and
RZB
FINANCE LLC,
a
Delaware limited liability company (the “Liquidity
Provider”).
W
I T
N E S S E T H:
WHEREAS,
pursuant to the Class B Trust Agreement (such term and all other
capitalized terms used in these recitals having the meanings set forth or
referred to in Section 1.01), the Class B Trust is issuing the
Class B Certificates;
WHEREAS,
the
Borrower, in order to support the timely payment of a portion of the interest
on
the Class B 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;
and
WHEREAS,
Raiffeisen Zentralbank Österreich Aktiengesellschaft, a banking institution
organized and existing under the laws of the Republic of Austria (the
“Guarantor”),
will
guarantee in full, pursuant to a master guaranty certificate dated as of the
date hereof and issued by the Guarantor pursuant to that certain Master Guaranty
Agreement, dated as of September 1, 1997, issued by the Guarantor (collectively,
the “Guarantee
Agreement”),
the
obligations of the Liquidity Provider under this Agreement.
NOW,
THEREFORE,
in
consideration of the premises, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section
1.01 Certain
Defined Terms.
(a) Definitions.
As used
in this Agreement and unless otherwise expressly indicated, or unless the
context clearly requires otherwise, the following capitalized terms shall have
the following respective meanings for all purposes of this
Agreement:
“Additional
Cost”
has
the
meaning assigned to such term in Section 3.01.
“Advance”
means
an Interest Advance, a Final Advance, a Provider Advance or an Applied Provider
Advance, as the case may be.
“Applicable
Liquidity Rate”
has
the
meaning assigned to such term in Section 3.07(g).
“Applicable
Margin”
means
(x) with respect to any Unpaid Advance or Applied Provider Advance, the per
annum rate specified in item 1 of Schedule A, or (y) with respect to
any Unapplied Provider Advance, the rate per annum specified in the Fee
Letter.
“Applied
Downgrade Advance”
has
the
meaning assigned to such term in Section 2.06(a).
“Applied
Non-Extension Advance”
has
the
meaning assigned to such term in Section 2.06(a).
“Applied
Provider Advance”
has
the
meaning assigned to such term in Section 2.06(a).
“Assignment
and Assumption Agreement”
means
the Assignment and Assumption Agreement to be entered into between the Borrower
and the trustee of the Successor Trust, substantially in the form of
Exhibit C to the Trust Supplement No. 2007-1B-O, dated as of the date
hereof, relating to the Class B Trust.
“Base
Rate”
means
a
fluctuating interest rate per annum in effect from time to time, which rate
per
annum shall at all times be equal to (a) the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if
such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or if such rate is not so published for any day that
is a Business Day, the average of the quotations for such day for such
transactions received by the Liquidity Provider from three Federal funds brokers
of recognized standing selected by it, plus (b) one-quarter of one percent
(¼ 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 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 Class B Certificate is outstanding, the city and state in which
the Class B Trustee, the Borrower or any Loan Trustee maintains its
Corporate Trust Office or receives or disburses funds, and, if the applicable
Business Day relates to any Advance or other amount bearing interest based
on
the LIBOR Rate, on which dealings in dollars are carried on in the London
interbank market.
“Consent
Period”
has
the
meaning specified in Section 2.10.
“Deposit
Agreement”
means
the Deposit Agreement dated as of the date hereof between Wells Fargo Bank
Northwest, National Association, as Escrow Agent, and Credit Suisse, New York
Branch, as Depositary, pertaining to the Class B Certificates, as the same
may be amended, modified or supplemented from time to time in accordance with
the terms thereof.
“Depositary”
has
the
meaning assigned to such term in the Deposit Agreement.
“Deposits”
has
the
meaning assigned to such term in the Deposit Agreement.
“Downgrade
Advance”
means
an Advance made pursuant to Section 2.02(c).
“Downgrade
Event”
means
a
downgrading of the Guarantor’s short-term unsecured debt rating or short-term
issuer credit rating (as applicable) issued by either Rating Agency below the
applicable Threshold Rating or the Guarantee ceases to be in full force and
effect or becomes invalid or unenforceable or the Guarantor denies its liability
thereunder.
“Effective
Date”
has
the
meaning specified in Section 4.01. The delivery of the certificate of the
Liquidity Provider contemplated by Section 4.01(e) shall be conclusive
evidence that the Effective Date has occurred.
“Excluded
Taxes”
means
(i) taxes imposed on the overall net income of the Liquidity Provider or of
its Facility Office by the jurisdiction where such Liquidity Provider’s
principal office or such Facility Office is located, and (ii) Excluded
Withholding Taxes.
“Excluded
Withholding Taxes”
means
(i) withholding Taxes imposed by the United States except to the extent
that such United States withholding Taxes are imposed or increased as a result
of any change in applicable law (excluding from change in applicable law for
this purpose a change in an applicable treaty or other change in law affecting
the applicability of a treaty) after the date hereof, or in the case of a
successor Liquidity Provider (including a transferee of an Advance) or Facility
Office, after the date on which such successor Liquidity Provider obtains its
interest or on which the Facility Office is changed, and (ii) any
withholding Taxes imposed by the United States which are imposed or increased
as
a result of the Liquidity Provider failing to deliver to the Borrower any
certificate or document (which certificate or document in the good faith
judgment of the Liquidity Provider it is legally entitled to provide) which
is
reasonably requested by the Borrower to establish that payments under this
Agreement are exempt from (or entitled to a reduced rate of) withholding
Tax.
“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.
“Expiry
Date”
means
the “Initial Expiry Date” specified in item 2 of Schedule A, initially, or
any date to which the Expiry Date is extended pursuant to
Section 2.10.
“Facility
Office”
means
the office of the Liquidity Provider presently located at Bethel, Connecticut,
or such other office as the Liquidity Provider from time to time shall notify
the Borrower as its Facility Office hereunder; provided that the Liquidity
Provider shall not change its Facility Office to another Facility Office outside
the United States of America except in accordance with Section 3.01, 3.02
or 3.03 hereof.
“Final
Advance”
means
an Advance made pursuant to Section 2.02(d).
“GAAP”
means
generally accepted accounting principles as set forth in the statements of
financial accounting standards issued by the Financial Accounting Standards
Board of the
American
Institute of Certified Public Accountants, as such principles may at any time
or
from time to time be varied by any applicable financial accounting rules or
regulations issued by the Securities and Exchange Commission and, with respect
to any person, shall mean such principles applied on a basis consistent with
prior periods except as may be disclosed in such person’s financial
statements.
“Guarantee
Agreement”
has
the
meaning assigned to such term in the recitals to this Agreement.
“Guarantor”
has
the
meaning assigned to such term in the recitals to this Agreement.
“Intercreditor
Agreement”
means
the Intercreditor Agreement dated as of the date hereof among the Trustees,
the
Liquidity Provider, the liquidity provider under the other Liquidity Facility
and the Subordination Agent, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
“Interest
Advance”
means
an Advance made pursuant to Section 2.02(a).
“Interest
Period”
means,
with respect to any LIBOR Advance, each of the following periods:
(i) the
period beginning on the third LIBOR Business Day following either (x) the
date of the Liquidity Provider’s receipt of the Notice of Borrowing for such
LIBOR Advance or (y) the date of the withdrawal of funds from the
Class B Cash Collateral Account for the purpose of paying interest on the
Class B Certificates as contemplated by Section 2.06(a) hereof and, in
either case, ending on the next Regular Distribution Date (or, if such day
is
not a Business Day, the next succeeding Business Day); and
(ii) each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the next Regular Distribution Date (or, if such
day is not a Business Day, the next succeeding Business Day);
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 LIBOR 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 (or, if such day is not
a Business Day, the next succeeding Business Day) following such conversion
(in
the case of clause (y) above).
“LIBOR
Advance”
means
an Advance bearing interest at a rate based upon the LIBOR Rate.
“LIBOR
Business Day”
means
any day on which dealings in dollars are carried on in the London interbank
market.
“LIBOR
Rate”
means,
with respect to any Interest Period,
(i) the
rate
per annum appearing on display page Reuters Screen LIBOR01 Page (or any
successor or substitute therefor) at approximately 11:00 a.m. (London time)
two LIBOR 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 LIBOR
Business Days before the first day of such Interest Period in an amount
approximately equal to the principal amount of the LIBOR Advance to which such
Interest Period is to apply and for a period comparable to such Interest
Period.
“Liquidity
Event of Default”
means
the occurrence of either (a) the Acceleration of all of the Equipment Notes
(provided that, with respect to the period prior to the Delivery Period Expiry
Date, such Equipment Notes have an aggregate outstanding principal balance
in
excess of the amount specified in item 3 on Schedule A or (b) a Continental
Bankruptcy Event.
“Liquidity
Indemnitee”
means
(i) the Liquidity Provider, (ii) the Guarantor, (iii) the directors,
officers, employees and agents of the Liquidity Provider and the Guarantor,
and
(iv) the successors and permitted assigns of the persons described in
clauses (i), (ii) and (iii) inclusive.
“Liquidity
Provider”
has
the
meaning assigned to such term in the recital of parties to this
Agreement.
“Maximum
Available Commitment”
means,
subject to the proviso contained in the third sentence of Section 2.02(a),
at any time of determination, (a) the Maximum Commitment at such time less
(b) the aggregate amount of each Interest Advance outstanding at such time;
provided that following a Provider Advance or a Final Advance, the Maximum
Available Commitment shall be zero.
“Maximum
Commitment”
means
initially the amount specified in item 4 on Schedule A, as such amount may
be
reduced from time to time in accordance with Section 2.04(a).
“Non-Excluded
Tax”
has
the
meaning specified in Section 3.03.
“Non-Extension
Advance”
means
an Advance made pursuant to Section 2.02(b).
“Notice
of Borrowing”
has
the
meaning specified in Section 2.02(e).
“Notice
of Replacement Subordination Agent”
has
the
meaning specified in Section 3.08.
“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 the date specified in item 5 on Schedule
A
relating to the Certificates, as such Prospectus Supplement may be amended
or
supplemented.
“Provider
Advance”
means
a
Downgrade Advance or a Non-Extension Advance.
“Regulatory
Change”
has
the
meaning assigned to such term in Section 3.01.
“Replenishment
Amount”
has
the
meaning assigned to such term in Section 2.06(b).
“Required
Amount”
means,
for any day, the sum of the aggregate amount of interest, calculated at the
rate
per annum equal to the Stated Interest Rate for the Class B Certificates,
that would be payable on the Class B Certificates on each of the three
successive semi-annual Regular Distribution Dates immediately following such
day
or, if such day is a Regular Distribution Date, on such day and the succeeding
two semi-annual Regular Distribution Dates, in each case calculated on the
basis
of the Pool Balance of the Class B Certificates on such day and without regard
to expected future distributions of principal on the Class B
Certificates.
“Successor
Trust”
means
Continental Airlines Pass Through Trust 2007-1B-S.
“Termination
Date”
means
the earliest to occur of the following: (i) the Expiry Date; (ii) the
date on which the Borrower delivers to the Liquidity Provider a certificate,
signed by a Responsible Officer of the Borrower, certifying that all of the
Class B Certificates have been paid in full (or provision has been made for
such payment in accordance with the Intercreditor Agreement and the Trust
Agreements) or are otherwise no longer entitled to the benefits of this
Agreement; (iii) the date on which the Borrower delivers to the Liquidity
Provider a certificate, signed by a Responsible Officer of the Borrower,
certifying that a Replacement Liquidity Facility has been substituted for this
Agreement in full pursuant to Section 3.5(e) of the Intercreditor
Agreement; (iv) the fifth Business Day following the receipt by the
Borrower of a Termination Notice from the Liquidity Provider pursuant to
Section 6.01 hereof; and (v) the date on which no Advance is or may
(including by reason of reinstatement as herein provided) become available
for a
Borrowing hereunder.
“Termination
Notice”
means
the Notice of Termination substantially in the form of Annex V to this
Agreement.
“Transferee”
has
the
meaning assigned to such term in Section 7.08(b).
“Unapplied
Downgrade Advance”
means
any Downgrade Advance other than an Applied Downgrade Advance.
“Unapplied
Non-Extension Advance”
means
any Non-Extension Advance other than an Applied Non-Extension
Advance.
“Unapplied
Provider Advance”
means
any Provider Advance other than an Applied Provider Advance.
“Unpaid
Advance”
has
the
meaning assigned to such term in Section 2.05.
(b) Terms
Defined in the Intercreditor Agreement.
For all
purposes of this Agreement, the following terms shall have the respective
meanings assigned to such terms in the Intercreditor Agreement:
“Acceleration”,
“Aircraft”,
“Certificate”,
“Class
A Certificates”,
“Class
B Certificates”,
“Class
B Cash Collateral Account”,
“Class
B Trust”,
“Class
B Trustee”,
“Class
B Trust Agreement”,
“Class
C Certificates”,
“Closing
Date”,
“Continental”,
“Continental
Bankruptcy Event”,
“Controlling
Party”,
“Corporate
Trust Office”,
“Delivery
Period Expiry Date”,
“Distribution
Date”,
“Downgraded
Facility”,
“Equipment
Notes”,
“Fee
Letter”,
“Final
Legal Distribution Date”,
“Financing
Agreement”,
“Investment
Earnings”,
“Liquidity
Facility”,
“Liquidity
Obligations”,
“Loan
Trustee”,
“Non-Extended
Facility”,
“Note
Purchase Agreement”,
“Operative
Agreements”,
“Participation
Agreement”,
“Performing
Equipment Note”,
“Person”,
“Pool
Balance”,
“Rating
Agencies”,
“Regular
Distribution Date”,
“Replacement
Liquidity Facility”,
“Responsible
Officer”,
“Scheduled
Payment”,
“Special
Payment”,
“Stated
Interest Rate”,
“Subordination
Agent”,
“Taxes”,
“Threshold
Rating”,
“Transfer”,
“Trust
Agreement”,
“Trustee”,
“Underwriters”,
“Underwriting
Agreement”,
and
“Written
Notice”.
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 on the Class B Certificates at the Stated Interest Rate therefor
in accordance with Section 3.5(a) of the Intercreditor Agreement. Each
Interest Advance made hereunder shall automatically reduce the Maximum Available
Commitment and the amount available to be borrowed hereunder by subsequent
Advances by the amount of such Interest Advance (subject to reinstatement as
provided in the next sentence). Upon repayment to the Liquidity Provider in
full
of the amount of any Interest Advance made pursuant to this
Section 2.02(a), together with accrued interest thereon (as provided
herein), the Maximum Available Commitment shall be reinstated by the
amount
of
such repaid Interest Advance but not to exceed the Maximum Commitment; provided,
however, that the Maximum Available Commitment shall not be so reinstated at
any
time if (x) (i) a Liquidity Event of Default shall have occurred and be
continuing and (ii) there is a Performing Note Deficiency or (y) a Final
Advance, a Downgrade Advance or a Non-Extension Advance shall have been made
or
an Interest Advance shall have been converted into a Final Advance.
(b) A
Non-Extension Advance shall be made in a single Borrowing if this Agreement
is
not extended in accordance with Section 3.5(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 3.5(d) within the time period specified in such Section) 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 Class B
Cash Collateral Account in accordance with said Section 3.5(d) and
Section 3.5(f) of the Intercreditor Agreement.
(c) A
Downgrade Advance shall be made in a single Borrowing upon the occurrence of
a
Downgrade Event (as provided for in Section 3.5(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 said
Section 3.5(c), by delivery to the Liquidity Provider of a written and
completed Notice of Borrowing in substantially the form of Annex III
attached hereto, signed by a Responsible Officer of the Borrower, in an amount
equal to the Maximum Available Commitment at such time, and shall be used to
fund the Class B Cash Collateral Account in accordance with said
Section 3.5(c) and Section 3.5(f) of the Intercreditor Agreement. Upon
the occurrence of a Downgrade Event, the Liquidity Provider shall promptly
deliver notice thereof to the Borrower, the Class B Trustee and
Continental.
(d) A
Final
Advance shall be made in a single Borrowing upon the receipt by the Borrower
of
a Termination Notice from the Liquidity Provider pursuant to Section 6.01
hereof by delivery to the Liquidity Provider of a written and completed Notice
of Borrowing in substantially the form of Annex IV attached hereto, signed
by a Responsible Officer of the Borrower, in an amount equal to the Maximum
Available Commitment at such time, and shall be used to fund the Class B
Cash Collateral Account (in accordance with Sections 3.5(f) and 3.5(i) of
the Intercreditor Agreement).
(e) Each
Borrowing shall be made on notice in writing (a “Notice
of Borrowing”)
in
substantially the form required by Section 2.02(a), 2.02(b), 2.02(c) or
2.02(d), as the case may be, given by the Borrower to the Liquidity Provider.
If
a Notice of Borrowing is delivered by the Borrower in respect of any Borrowing
no later than 1:00 p.m. (New York City time) on a Business Day, upon
satisfaction of the conditions precedent set forth in Section 4.02 with
respect to a requested Borrowing, the Liquidity Provider shall make available
to
the Borrower, in accordance with its payment instructions, the amount of such
Borrowing in U.S. dollars and immediately available funds, before 4:00 p.m.
(New York City time) on such Business Day or on such later Business Day
specified in such Notice of Borrowing. If a Notice of Borrowing is delivered
by
the Borrower in respect of any Borrowing on a day that is not a Business Day
or
after 1:00 p.m. (New York City time) on a Business Day, upon satisfaction
of the conditions
precedent
set forth in Section 4.02 with respect to a requested Borrowing, the
Liquidity Provider shall make available to the Borrower, in accordance with
its
payment instructions, the amount of such Borrowing in U.S. dollars and in
immediately available funds, before 12:00 Noon (New York City time) on the
first
Business Day next following the day of receipt of such Notice of Borrowing
or on
such later Business Day specified by the Borrower in such Notice of Borrowing.
Payments of proceeds of a Borrowing shall be made by wire transfer of
immediately available funds to the Borrower in accordance with such wire
transfer instructions as the Borrower shall furnish from time to time to the
Liquidity Provider for such purpose. Each Notice of Borrowing shall be
irrevocable and binding on the Borrower. Each Notice of Borrowing shall be
effective upon delivery of a copy thereof to the Liquidity Provider at the
address specified pursuant to Section 7.02.
(f) Upon
the
making of any Advance requested pursuant to a Notice of Borrowing, in accordance
with the Borrower’s payment instructions, the Liquidity Provider shall be fully
discharged of its obligation hereunder with respect to such Notice of Borrowing,
and the Liquidity Provider shall not thereafter be obligated to make any further
Advances hereunder in respect of such Notice of Borrowing to the Borrower or
to
any other Person. If the Liquidity Provider makes an Advance requested pursuant
to a Notice of Borrowing before 12:00 Noon (New York City time) on the second
Business Day after the date of payment specified in said Section 2.02(e),
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),
(c) or (d) hereof to fund the Class B Cash Collateral Account,
the Liquidity Provider shall have no interest in or rights to the Class B
Cash Collateral Account, the funds constituting such Advance or any other
amounts from time to time on deposit in the Class B 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 3.5(e) or (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 Accounts 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 in the Pool Balance of the Class B 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.
Upon
the making of any Provider Advance or the making of or conversion to a Final
Advance hereunder or the occurrence of the Termination Date, the obligation
of
the Liquidity Provider to make further Advances hereunder shall automatically
and irrevocably terminate, and the Borrower shall not be entitled to request
any
further Borrowing hereunder.
Section
2.05 Repayments
of Interest Advances or the Final Advance.
Subject
to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby agrees, without
notice of an Advance or demand for repayment from the Liquidity Provider (which
notice and demand are hereby waived by the Borrower), to pay, or to cause to
be
paid, to the Liquidity Provider on each date on which the Liquidity Provider
shall make an Interest Advance or the Final Advance, an amount equal to
(a) the amount of such Advance (any such Advance, until repaid, is referred
to herein as an “Unpaid
Advance”)
(if
multiple Interest Advances are outstanding any such repayment to be applied
in
the order in which such Interest Advances have been made, starting with the
earliest), plus (b) interest on the amount of each such Unpaid Advance as
provided in Section 3.07 hereof; provided that if (i) the Liquidity
Provider shall make a Provider Advance at any time after making one or more
Interest Advances which shall not have been repaid in accordance with this
Section 2.05 or (ii) this Liquidity Facility shall become a Downgraded
Facility or Non-Extended Facility at any time when unreimbursed Interest
Advances have reduced the Maximum Available Commitment to zero, then such
Interest Advances shall cease to constitute Unpaid Advances and shall be deemed
to have been changed into an Applied Downgrade Advance or an Applied
Non-Extension Advance, as the case may be, for all purposes of this Agreement
(including, without limitation, for the purpose of determining when such
Interest Advance is required to be repaid to the Liquidity Provider in
accordance with Section 2.06 and for the purposes of Section 2.06(b)).
The Borrower and the Liquidity Provider agree that the repayment in full of
each
Interest Advance and Final Advance on the date such Advance is made is intended
to be a contemporaneous exchange for new value given to the Borrower by the
Liquidity Provider.
Section
2.06 Repayments
of Provider Advances.
(a) Amounts
advanced hereunder in respect of a Provider Advance shall be deposited in the
Class B Cash Collateral Account, invested and withdrawn from the
Class B Cash Collateral Account as set forth in Sections 3.5(c), (d)
and (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; provided,
however,
that
amounts in respect of a Provider Advance withdrawn from the Class B Cash
Collateral Account for the purpose of paying interest on the Class B
Certificates in accordance with Section 3.5(f) of the Intercreditor
Agreement (the amount of any such withdrawal being (y) in the case of a
Downgrade Advance, an “Applied
Downgrade Advance”
and
(z) in the case of a Non-Extension Advance, an “Applied
Non-Extension Advance”
and,
together with an Applied Downgrade Advance, an “Applied
Provider Advance”)
shall
thereafter (subject to Section 2.06(b)) be treated as an Interest Advance
under this Agreement for purposes of determining the Applicable Liquidity Rate
for interest payable thereon and the dates on which such interest is payable;
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 dates on which such interest
is payable and as an Applied Downgrade Advance or Applied Non-Extension Advance,
as the case may be, for the purposes of Section 2.6(c) of the Intercreditor
Agreement. Subject to Sections 2.07 and 2.09 hereof, immediately upon the
withdrawal of any amounts from the Class B Cash Collateral Account on
account of a reduction in the Required Amount, the Borrower shall repay to
the
Liquidity Provider a portion of the Provider Advances in a principal amount
equal to 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 Class B Cash Collateral Account of any amount
pursuant to clause “fourth”
of
Section 3.2 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 (if multiple Applied Provider Advances are outstanding,
such Replenishment Amount to be applied in the order in which such Applied
Provider Advances have been made, starting with the earliest) 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 3.5(e) of the Intercreditor Agreement, amounts
remaining on deposit in the Class B Cash Collateral Account after giving
effect to any Applied Provider Advance on the date of such replacement shall
be
reimbursed to the Liquidity Provider, but only to the extent such amounts are
necessary to repay in full to the Liquidity Provider all amounts owing to it
hereunder.
Section
2.07 Payments
to the Liquidity Provider Under the Intercreditor Agreement.
In
order to provide for payment or repayment to the Liquidity Provider of any
amounts hereunder, the Intercreditor Agreement provides that amounts available
and 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 3.5(f) of
the Intercreditor Agreement), shall be paid to the Liquidity Provider in
accordance with the terms thereof. Amounts so paid to the Liquidity Provider
shall be applied by the Liquidity Provider to Liquidity Obligations then due
and
payable in accordance with the Intercreditor Agreement and shall discharge
in
full the corresponding obligations of the Borrower hereunder (or, if not
provided for in the Intercreditor Agreement, then in such manner as the
Liquidity Provider shall deem appropriate).
Section
2.08 Book
Entries.
The
Liquidity Provider shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower resulting from
Advances made from time to time and the amounts of principal and interest
payable hereunder and paid from time to time in respect thereof; provided,
however, that the failure by
the
Liquidity Provider to maintain such account or accounts shall not affect the
obligations of the Borrower in respect of Advances.
Section
2.09 Payments
from Available Funds Only.
All
payments to be made by the Borrower under this Agreement, including, without
limitation, Sections 7.05 and 7.07, shall be made only from the amounts that
constitute Scheduled Payments, Special Payments or payments under
Section 8.1 of the Participation Agreements with respect to Aircraft and
payments under 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 provisions set forth in the
Intercreditor Agreement. The Liquidity Provider agrees that it will look solely
to such amounts in respect of payments to be made by the Borrower hereunder
to
the extent available for distribution to it as provided in the Intercreditor
Agreement and this Agreement and that the Borrower, in its individual capacity,
is not personally liable to it for any amounts payable or liability under this
Agreement except as expressly provided in this Agreement, the Intercreditor
Agreement or any Participation Agreement. Amounts on deposit in the Class B
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 3.5(f) of the Intercreditor Agreement.
Section
2.10 Extension
of the Expiry Date; Non-Extension Advance.
No
earlier than the 60th day and no later than the 40th day prior to the then
effective Expiry Date (unless such Expiry Date is on or after the date that
is
15 days after the Final Legal Distribution Date for the Class B
Certificates), the Borrower shall request that the Liquidity Provider extend
the
Expiry Date to the earlier of (i) the date that is 15 days after the Final
Legal Distribution Date for the Class B Certificates and (ii) the date
that is the day immediately preceding the 364th day occurring after the last
day
of the Consent Period (as hereinafter defined). Whether or not the Borrower
has
made such request, the Liquidity Provider shall advise the Borrower no earlier
than the 40th day (or, if earlier, the date of the Liquidity Provider’s receipt
of such request, if any, from the Borrower) and no later than the 25th day
prior
to the then effective Expiry Date (such period, the “Consent
Period”),
whether, in its sole discretion, it agrees to so extend the Expiry Date. If
the
Liquidity Provider advises the Borrower on or before the date on which the
Consent Period ends that such Expiry Date shall not be so extended, or fails
to
irrevocably and unconditionally advise the Borrower on or before the date on
which the Consent Period ends that such Expiry Date shall be so extended (and,
in each case, if the Liquidity Provider shall not have been replaced in
accordance with Section 3.5(e) of the Intercreditor Agreement), the
Borrower shall be entitled on and after the date on which the Consent Period
ends (but prior to the then effective Expiry Date) to request a Non-Extension
Advance in accordance with Section 2.02(b) hereof and Section 3.5(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 monetary authority
charged with the interpretation or administration thereof (a “Regulatory
Change”),
which: (1) changes the basis of taxation of any amounts payable to the
Liquidity Provider under this Agreement in respect of any such Advances or
such
obligation (other than Excluded Taxes); or (2) imposes or modifies any
reserve, special deposit, compulsory loan or similar requirements relating
to
any extensions of credit or other assets of, or any deposits with other
liabilities of, the Liquidity Provider (including any such Advances or such
obligation or any deposits referred to in the definition of LIBOR Rate or
related definitions). The Liquidity Provider agrees to use reasonable efforts
(consistent with applicable legal and regulatory restrictions) to change the
jurisdiction of its Facility Office if making such change would avoid the need
for, or reduce the amount of, any amount payable under this Section that
may thereafter accrue and would not, in the reasonable judgment of the Liquidity
Provider, be otherwise disadvantageous to the Liquidity Provider.
The
Liquidity Provider will notify the Borrower of any event occurring after the
date of this Agreement that will entitle the Liquidity Provider to compensation
pursuant to this Section 3.01 as promptly as practicable after it obtains
knowledge thereof and determines to request such compensation, which notice
shall describe in reasonable detail the calculation of the amounts owed under
this Section. Determinations by the Liquidity Provider for purposes of this
Section 3.01 of the effect of any Regulatory Change on its costs of making
or maintaining Advances or on amounts receivable by it in respect of Advances,
and of the additional amounts required to compensate the Liquidity Provider
in
respect of any Additional Costs, shall be prima facie evidence of the amount
owed under this Section.
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, after the date hereof, of any applicable governmental
law, rule or regulation regarding capital adequacy, (2) any change, after
the date hereof, in the interpretation or administration of any such law, rule
or regulation by any central bank or other governmental authority charged with
the interpretation or administration thereof or (3) compliance by the
Liquidity Provider or any corporation or bank controlling the Liquidity Provider
with any applicable guideline or request of general applicability, issued after
the date hereof, by any central bank or other governmental authority (whether
or
not having the force of law) that constitutes a change of the nature described
in clause (2), has the effect of (x) requiring an increase in the
amount of capital required to be maintained by the Liquidity Provider or any
corporation or bank controlling the Liquidity Provider, or (y) reducing the
rate
of
return
on
assets or capital of the Liquidity Provider (or such corporation or bank) and
such adoption, change or compliance, as the case may be, relates to a category
of claims or assets that includes the Liquidity Provider’s obligations hereunder
and other similar obligations, the Borrower shall, subject to the provisions
of
the next paragraph, 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 or reduction as shall be reasonably
allocable to the Liquidity Provider’s obligations to the Borrower hereunder. For
the avoidance of doubt, the proposals of The Basel Committee on Banking
Supervision relating to capital adequacy rules commonly known as Basel II will
not be treated for purposes of determining whether the Liquidity Provider (or
any corporation or bank controlling the Liquidity Provider) is entitled to
compensation under this Section 3.02 as having been adopted or having come
into
effect before the date hereof, which rules shall be determined to be adopted
only when the national banking authorities, or other relevant administrative
or
legislative bodies having primary jurisdiction or regulatory authority over
the
Liquidity Provider (or any corporation or bank controlling the Liquidity
Provider), adopt Basel II in the primary jurisdiction of the Liquidity Provider.
The Liquidity Provider agrees to use reasonable efforts (consistent with
applicable legal and regulatory restrictions) to change the jurisdiction of its
Facility Office if making such change would avoid the need for, or reduce the
amount of, any amount payable under this Section that may thereafter accrue
and
would not, in the reasonable judgment of the Liquidity Provider, be otherwise
materially disadvantageous to the Liquidity Provider.
The
Liquidity Provider will notify the Borrower of any event occurring after the
date of this Agreement that will entitle the Liquidity Provider to compensation
pursuant to this Section 3.02 as promptly as practicable after it obtains
knowledge thereof and determines to request such compensation, which notice
shall describe in reasonable detail the calculation of the amounts owed under
this Section. Determinations by the Liquidity Provider for purposes of this
Section 3.02 of the effect of any increase in the amount of capital
required to be maintained by the Liquidity Provider and of the amount allocable
to the Liquidity Provider’s obligations to the Borrower hereunder shall be
conclusive evidence of the amounts owed under this Section, absent manifest
error.
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 for or on account of, any present or future stamp
or
other taxes, levies, imposts, duties, charges, fees, deductions, withholdings,
restrictions or conditions of any nature whatsoever now or hereafter imposed,
levied, collected, withheld or assessed, excluding Excluded Taxes (such
non-excluded taxes being referred to herein, collectively, as “Non-Excluded
Taxes”
and
each, individually, as a “Non-Excluded
Tax”).
If
any Non-Excluded Taxes are required to be withheld from any amounts payable
to
the Liquidity Provider under this Agreement, (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 Non-Excluded Taxes
(and any additional Non-Excluded 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) the amounts so payable to the
Liquidity Provider shall be increased to the extent necessary to yield to the
Liquidity Provider (after payment of all Non-Excluded Taxes) interest or any
other such amounts payable under this Agreement at the rates or in the amounts
specified in this Agreement. The Liquidity Provider agrees to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Facility Office if making such
change would avoid the need for, or reduce the amount of, any such additional
amounts that may thereafter accrue and would not, in the reasonable judgment
of
the Liquidity Provider, be otherwise disadvantageous to the Liquidity Provider.
From time to time upon the reasonable request of the Borrower, the Liquidity
Provider agrees to provide to the Borrower two original Internal Revenue Service
Forms 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. Within 30 days after
the
date of each payment hereunder, the Borrower shall furnish to the Liquidity
Provider the original or a certified copy of (or other documentary evidence
of)
the payment of the Non-Excluded Taxes applicable to such payment.
(b) All
payments (including, without limitation, 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. If any Taxes are required to be
withheld or deducted from any amounts payable to the Borrower under this
Agreement, 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) will be sufficient
to yield to the Borrower the full amount which would have been received by
it
had no such withholding or deduction been made. Within 30 days after the date
of
each payment hereunder, the Liquidity Provider shall furnish to the Borrower
the
original or a certified copy of (or other documentary evidence of) the payment
of the Taxes applicable to such payment.
(c) If
any
exemption from, or reduction in the rate of, any Taxes 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 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 lawful money of the United States
of America, to the Liquidity Provider in immediately available funds, by wire
transfer to the account specified for the Liquidity Provider in Schedule
B.
Section
3.05 Computations.
All
computations of interest based on the Base Rate shall be made on the basis
of a
year of 365 or 366 days, as the case may be, and all computations of interest
based on the LIBOR Rate shall be made on the basis of a year of 360 days, in
each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest is
payable.
Section
3.06 Payment
on Non-Business Days.
Whenever any payment to be made hereunder to the Liquidity Provider shall be
stated to be due on a day other than a Business Day, such payment shall be
made
on the next succeeding Business Day and no additional interest shall be due
as a
result. If any payment in respect of interest on an Advance is so deferred
to
the next succeeding Business Day, such deferral shall not delay the commencement
of the next Interest Period for such Advance (if such Advance is a LIBOR
Advance) or reduce the number of days for which interest will be payable on
such
Advance on the next interest payment date for such Advance.
Section
3.07 Interest.
(a) Subject
to Section 2.09, the Borrower shall pay, or shall cause to be paid, without
duplication, interest on (i) the unpaid principal amount of each Advance
from and including the date of such Advance (or, in the case of an Applied
Provider Advance, from and including the date on which the amount thereof was
withdrawn from the Class B Cash Collateral Account to pay interest on the
Class B Certificates) to but excluding the date such principal amount shall
be paid in full (or, in the case of an Applied Provider Advance, the date on
which the Class B Cash Collateral Account is fully replenished in respect
of such Advance) and (ii) any other amount due hereunder (whether fees,
commissions, expenses or other amounts or, to the extent permitted by law,
installments of interest on Advances or any such other amount) which is not
paid
when due (whether at stated maturity, by acceleration or otherwise) from and
including the due date thereof to but excluding the date such amount is paid
in
full, in each such case, at a fluctuating interest rate per annum for each
day
equal to the Applicable Liquidity Rate (as defined below) for such Advance
or
such other amount as in effect for such day, but in no event at a rate per
annum
greater than the maximum rate permitted by applicable law; provided,
however,
that,
if at any time the otherwise applicable interest rate as set forth in this
Section 3.07 shall exceed the maximum rate permitted by applicable law,
then any subsequent reduction in such interest rate will not reduce the rate
of
interest payable pursuant to this Section 3.07 below the maximum rate
permitted by applicable law until the total amount of interest accrued equals
the amount of interest that would have accrued if such otherwise applicable
interest rate as set forth in this Section 3.07 had at all times been in
effect.
(b) Except
as
provided in clause (e) below, each Advance (including, without limitation,
each outstanding Unapplied Downgrade Advance) will be either a Base Rate Advance
or a LIBOR Advance as provided in this Section. Each such Advance will be a
Base
Rate Advance for the period from the date of its borrowing to (but excluding)
the third LIBOR 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 the LIBOR Rate for such Interest Period plus the Applicable
Margin for such LIBOR Advance, payable in arrears on the last day of such
Interest Period and, in the event of the payment of principal of such LIBOR
Advance on a day other than such last day, on the date of such payment (to
the
extent of interest accrued on the amount of principal repaid).
(d) Each
Base
Rate Advance shall bear interest at a rate per annum equal to the Base Rate
plus
the Applicable Margin for such Base Rate Advance, payable in arrears on each
Regular Distribution Date and, in the event of the payment of principal of
such
Base Rate Advance on a day other than a Regular Distribution Date, on the date
of such payment (to the extent of interest accrued on the amount of principal
repaid).
(e) Each
outstanding Unapplied Non-Extension Advance and Unapplied Downgrade Advance
shall bear interest in an amount equal to the Investment Earnings on amounts
on
deposit in the Class B Cash Collateral Account plus the Applicable Margin
for such Unapplied Non-Extension Advance on the amount of such Unapplied
Non-Extension Advance or Unapplied Downgrade Advance from time to time, payable
in arrears on each Regular Distribution Date.
(f) Each
amount not paid when due hereunder (whether fees, commissions, expenses or
other
amounts or, to the extent permitted by applicable law, installments of interest
on Advances but excluding Advances) shall bear interest at a rate per annum
equal to the Base Rate plus 2.00% per annum until paid.
(g) Each
change in the Base Rate shall become effective immediately. The rates of
interest specified in this Section 3.07 with respect to any Advance or
other amount shall be referred to as the “Applicable Liquidity
Rate”.
Section
3.08 Replacement
of Borrower.
From
time to time and subject to the successor Borrower’s meeting the eligibility
requirements set forth in Section 6.9 of the Intercreditor Agreement
applicable to the Subordination Agent, upon the effective date and time
specified in a written and completed Notice of Replacement Subordination Agent
in substantially the form of Annex VI attached hereto (a “Notice
of Replacement Subordination Agent”)
delivered to the Liquidity Provider by the then Borrower, the successor Borrower
designated therein shall be substituted for the Borrower for all purposes
hereunder.
Section
3.09 Funding
Loss Indemnification.
The
Borrower shall pay to the Liquidity Provider, upon the request of the Liquidity
Provider, such amount or amounts as shall be sufficient (in the reasonable
opinion of the Liquidity Provider) to compensate it for any loss, cost, or
expense incurred by reason of the liquidation or redeployment of deposits or
other funds
acquired
by the Liquidity Provider to fund or maintain any LIBOR Advance (but excluding
loss of anticipated profits) incurred as a result of:
(1) Any
repayment of a LIBOR Advance on a date other than the last day of the Interest
Period for such Advance; or
(2) Any
failure by the Borrower to borrow a LIBOR Advance on the date for borrowing
specified in the relevant notice under Section 2.02.
Calculation
of all amounts payable to the Liquidity Provider under this Section 3.09 shall
be made as though the Liquidity Provider had actually funded the related LIBOR
Advance through the purchase of a LIBOR deposit bearing interest at the LIBOR
Rate in an amount equal to its LIBOR Advance and having a maturity comparable
to
the relevant Interest Period; provided however, that the Liquidity Provider
may
fund any LIBOR Advance in any manner it sees fit and the foregoing assumptions
shall be utilized only for the purposes of calculating amounts payable under
this Section 3.09.
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 Facility 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 Facility Office) to maintain or fund its LIBOR Advances, then
upon notice to the Borrower by the Liquidity Provider, the outstanding principal
amount of the LIBOR Advances shall be converted to Base Rate Advances
(a) immediately upon demand of the Liquidity Provider, if such change or
compliance with such request, in the judgment of the Liquidity Provider,
requires immediate repayment; or (b) at the expiration of the last Interest
Period to expire before the effective date of any such change or request. The
Liquidity Provider agrees to use reasonable efforts (consistent with applicable
legal and regulatory restrictions) to change the jurisdiction of its Facility
Office if making such change would avoid or cure the aforesaid illegality and
would not, in the reasonable judgment of the Liquidity Provider, be otherwise
disadvantageous to 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 the Borrower;
(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 executed and delivered
on or
before the Closing Date (other than this Agreement, the Guarantee Agreement,
the
Fee Letter and the Intercreditor Agreement);
(iv) A
copy of
the Prospectus Supplement and specimen copies of the Class B
Certificates;
(v) An
executed copy of each document, instrument, certificate and opinion delivered
on
or before the Closing Date pursuant to the Class B Trust Agreement, the
Note Purchase Agreement, the Intercreditor Agreement and the other Operative
Agreements (in the case of each such opinion, other than the opinion of counsel
for the Underwriters, 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 Trustees, the Borrower and the Liquidity Provider created
by
the Operative Agreements executed and delivered on or before the Closing
Date;
(vii) An
agreement from Continental, pursuant to which (i) Continental agrees to
provide to the Liquidity Provider (A) within 90 days after the end of each
of the first three fiscal quarters in each fiscal year of Continental, a
consolidated balance sheet of Continental as of the end of such quarter and
related statements of income and cash flows for the period commencing at the
end
of the previous fiscal year and ending with the end of such quarter, setting
forth in each case in comparative form the corresponding figures for the
corresponding period in the preceding fiscal year, prepared in accordance with
GAAP; provided, that so long as Continental is subject to the reporting
requirements of the Securities Exchange Act of 1934, as amended, a copy of
Continental’s report on Form 10-Q for such fiscal quarter (excluding
exhibits) or a written notice executed by an authorized officer of Continental
that such report has been filed with the Securities and Exchange Commission,
providing a website address at which such report may be accessed and confirming
that the report accessible at such website address conforms to the original
report filed with the Securities and Exchange Commission will satisfy this
subclause (A), and (B) within 120 days after the end of each fiscal
year of Continental, a consolidated balance sheet of Continental as of the
end
of such fiscal year and related statements of income and cash flows of
Continental for such fiscal year, in comparative form with the preceding fiscal
year, prepared in accordance with GAAP, together with a report of Continental’s
independent certified public accountants with respect to their audit of such
financial statements; provided, that so long as Continental is subject to the
reporting requirements of the Securities Exchange Act of 1934, as amended,
a
copy of Continental’s report on Form 10-K for such fiscal year (excluding
exhibits) or a written notice executed by an authorized officer of Continental
that
such
report has been filed with the Securities and Exchange Commission, providing
a
website address at which such report may be accessed and confirming that the
report accessible at such website address conforms to the original report filed
with the Securities and Exchange Commission will satisfy this
subclause (B), and (ii) Continental agrees to allow the Liquidity
Provider to inspect Continental’s books and records regarding such transactions,
and to discuss such transactions with officers and employees of
Continental;
(viii) Legal
opinions from (a) Morris, James, Hitchens & Williams LLC, special counsel to
the Borrower and (b) Hughes Hubbard & Reed LLP, special counsel to
Continental, each in form and substance reasonably satisfactory to the Liquidity
Provider; and
(ix) 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, including, without
limitation, such documentation as the Liquidity Provider may require to satisfy
its “know your customer” policies.
(b) The
following statement shall be true on and as of the Effective Date: no event
has
occurred and is continuing, or would result from the entering into of this
Agreement or the making of any Advance, which constitutes a Liquidity Event
of
Default
(c) The
Liquidity Provider shall have received payment in full of all fees and other
sums required to be paid to or for the account of the Liquidity Provider on
or
prior to the Effective Date.
(d) All
conditions precedent to the issuance of the Certificates under the Trust
Agreements shall have been satisfied or waived, all conditions precedent to
the
effectiveness of the other Liquidity Facility shall have been concurrently
satisfied or waived, and all conditions precedent to the purchase of the
Class A Certificates, the Class B Certificates and the Class C Certificates
by the Underwriters 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 haveany 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 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
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(d) hereof and
Section 3.5(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.
MISCELLANEOUS
Section
7.01 Amendments,
Etc.
No
amendment or waiver of any provision of this Agreement, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless
the
same shall be in writing and signed by the Liquidity Provider, and, in the
case
of an amendment or of a waiver by the Borrower, the Borrower, and then such
waiver or consent shall be effective only in the specific instance and for
the
specific purpose for which given.
Section
7.02 Notices,
Etc.
Except
as otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including telecopier and mailed
or
delivered or sent by telecopier) addressed to the applicable party at its
address specified on Schedule B or to such other address as shall be designated
by such Person in a written notice to the others. All such notices and
communications shall be effective (i) if given by telecopier, when
transmitted to the telecopier number specified above, (ii) if given by
mail, when deposited in the mails addressed as specified above, and
(iii) if given by other means, when delivered at the address specified
above, except that written notices to the Liquidity Provider pursuant to the
provisions of Article II and Article III hereof shall not be effective
until received by the Liquidity Provider. 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 8.1 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, 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, 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,
or (iii) attributable to the failure by such Liquidity Indemnitee or any
other Liquidity Indemnitee to perform or observe any agreement, covenant or
condition on its part to be performed or observed in this Agreement, the
Intercreditor Agreement, the Fee Letter applicable to this Agreement or any
other Operative Agreement to which it is a party. The indemnities contained
in
Section 8.1 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 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 be 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 Class B 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 and in Section 3.05(l) of the Intercreditor Agreement) nor
(except as contemplated by Section 3.08) the Borrower shall have the right
to assign its rights or obligations hereunder or any interest herein without
the
prior written consent of the other party, subject to the requirements of
Section 7.08(b). The Liquidity Provider may grant participations herein or
in any of its rights hereunder (including, without limitation, funded
participations and participations in rights to receive interest payments
hereunder) and under the other Operative Agreements to such Persons (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,
(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 prohibited, unenforceable or not authorized
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition, unenforceability or non-authorization without invalidating
the remaining provisions hereof or affecting the validity, enforceability or
legality of such provision in any other jurisdiction.
Section
7.10 GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE
STATE OF NEW YORK.
Section
7.11 Submission
to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity.
(a) Each
of the parties hereto hereby irrevocably and unconditionally:
(i) submits
for itself and its property in any legal action or proceeding relating to this
Agreement or any other Operative Agreement, or for recognition and enforcement
of any judgment in respect hereof or thereof, to the nonexclusive general
jurisdiction of the courts of the State of New York, the courts of the United
States of America 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 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 Transfer.
The
Liquidity Provider hereby acknowledges and consents to the Transfer contemplated
by the Assignment and Assumption Agreement.
Section
7.16 LIQUIDITY
PROVIDER’S OBLIGATION TO MAKE ADVANCES.
EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE LIQUIDITY
PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER’S RIGHTS TO DELIVER
NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL BE
UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE
STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
Section
7.17 Patriot
Act.
In
compliance with the USA Patriot Act and 31 CFR Part 103.121 and, in the case
of
a non-U.S. entity, any other similar requirements of the relevant foreign
jurisdiction, when requested the Borrower shall provide to the Liquidity
Provider certain information relating to the Borrower that the Liquidity
Provider may be required to obtain and keep on file, including the Borrower’s
name, address and various identifying documents.
IN
WITNESS WHEREOF,
the
parties have caused this Agreement to be duly executed and delivered by their
respective officers thereunto duly authorized as of the date first set forth
above.
|
WILMINGTON
TRUST COMPANY,
not in its individual capacity but solely as Subordination Agent,
as agent
and trustee for the Class B Trust,
as
Borrower
|
||
|
By:
|
||
|
Name:
Title:
|
||
|
RZB
FINANCE LLC,
as
Liquidity Provider
|
||
|
By:
|
||
|
Name:
Title:
|
||
|
By:
|
||
|
Name:
Title:
|
||
TO
REVOLVING
CREDIT AGREEMENT
CERTAIN
ECONOMIC TERMS
1. Applicable
Margin (Unpaid Advance/Applied Provider Advance): 1.75% per annum.
2. Initial
Expiry Date: April 8, 2008.
3. Liquidity
Event of Default Delivery Period threshold: $450,000,000.
4. Initial
Maximum Commitment: $23,354,316.
5. Prospectus
Supplement date: March 27, 2007.
TO
REVOLVING
CREDIT AGREEMENT
ADMINISTRATION
DETAILS
|
Borrower:
|
WILMINGTON
TRUST COMPANY
|
|
Address:
|
Rodney
Square North
1100
North Market Square
Wilmington,
DE 19890-1605
Attention:
Corporate Capital Market Services
Telephone:
(302) 636-6296
Telecopy:
(302) 636-4140
|
|
Liquidity
Provider:
|
RZB
FINANCE LLC
|
|
Address:
|
24
Grassy Plain Street
Bethel,
CT 06801
Attention:
Mr. Chris Hoedl, Ms. Marta Miller
Telephone:
(203) 207-0115
Telecopy:
(203) 744-6474
|
|
Account
Details:
|
Bank:
Citibank NA
New
York, NY
ABA
#: 021-000-089
Acct.
Name: RZB Finance LLC
Account
#: 3617-7625
Reference:
WTC/Continental
Attn:
Terri Weiner, 212-845-8356
|
TO
REVOLVING
CREDIT AGREEMENT
INTEREST
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
“Borrower”),
hereby certifies to RZB Finance LLC (the “Liquidity
Provider”),
with
reference to the Revolving Credit Agreement (2007-1B) dated as of April 10,
2007, 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 Class B Certificates which was
payable on ____________, ____ (the “Distribution
Date”)
in
accordance with the terms and provisions of the Class B Trust Agreement and
the Class B 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 respect of the payment of the interest which was due and payable
on the Class B Certificates on the Distribution Date, (ii) does not
include any amount with respect to the payment of principal of, or premium
on,
the Class B Certificates, or principal of, or interest or premium on, the
Class A Certificates and the Class C Certificates, (iii) was
computed in accordance with the provisions of the Class B Certificates, the
Liquidity Agreement, the Class B Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule I),
(iv) does not exceed the Maximum Available Commitment on the date hereof,
(v) does not include any amount of interest which was due and payable on
the Class B 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 3.5(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]
TO
REVOLVING
CREDIT AGREEMENT
NON-EXTENSION
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
“Borrower”),
hereby certifies to RZB Finance LLC (the “Liquidity
Provider”),
with
reference to the Revolving Credit Agreement (2007-1B) dated as of April 10,
2007, between the Borrower and the Liquidity Provider (the “Liquidity
Agreement”;
the
terms defined therein and not otherwise defined herein being used herein as
therein defined or referenced), that:
(1) The
Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The
Borrower is delivering this Notice of Borrowing for the making of the
Non-Extension Advance by the Liquidity Provider to be used for the funding
of
the Class B Cash Collateral Account in accordance with Section 3.5(d)
of the Intercreditor Agreement, which Advance is requested to be made on
__________, ____. The Non-Extension Advance should be transferred to [name
of
bank/wire instructions/ABA number] in favor of account number [ ], reference
[
].
(3) The
amount of the Non-Extension Advance requested hereby (i) is
$_______________.__, which equals the Maximum Available Commitment on the date
hereof and is to be applied in respect of the funding of the Class B Cash
Collateral Account in accordance with Section 3.5(d) of the Intercreditor
Agreement, (ii) does not include any amount with respect to the payment of
the principal of, or premium on, the Class B Certificates, or principal of,
or interest or premium on, the Class A Certificates or the Class C
Certificates, (iii) was computed in accordance with the provisions of the
Class B Certificates, the Liquidity Agreement, the Class B 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 Class B Cash
Collateral Account and apply the same in accordance with the terms of
Section 3.5(d) of the Intercreditor Agreement, (b) no portion of such
amount shall be applied by the Borrower for any other purpose and (c) no
portion of such amount until so applied shall be commingled with other funds
held by the Borrower.
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement,
(A) the making of the Non-Extension Advance as requested by this Notice of
Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement;
and
(B) following the making by the Liquidity Provider of the Non-Extension
Advance requested by this Notice of Borrowing, the Borrower shall not be
entitled to request any further Advances under the Liquidity
Agreement.
IN
WITNESS WHEREOF,
the
Borrower has executed and delivered this Notice of Borrowing as of the ____
day
of _________, ____.
|
WILMINGTON
TRUST COMPANY,
not in its individual capacity but solely as Subordination Agent,
as
Borrower
|
||
|
By:
|
||
|
Name:
Title:
|
||
SCHEDULE I
TO
NON-EXTENSION
ADVANCE NOTICE OF BORROWING
[Insert
copy of computations in accordance with Non-Extension Advance Notice of
Borrowing]
TO
REVOLVING
CREDIT AGREEMENT
DOWNGRADE
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
“Borrower”),
hereby certifies to RZB
FINANCE LLC
(the
“Liquidity
Provider”),
with
reference to the REVOLVING
CREDIT AGREEMENT (2007-1B)
dated as
of April 10, 2007, 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 Class B
Cash Collateral Account in accordance with Section 3.5(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 Class B Cash
Collateral Account in accordance with Section 3.5(c) of the Intercreditor
Agreement, (ii) does not include any amount with respect to the payment of
the principal of, or premium on, the Class B Certificates, or principal of,
or interest or premium on, the Class A Certificates or the Class C
Certificates, (iii) was computed in accordance with the provisions of the
Class B Certificates, the Liquidity Agreement, the Class B 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 Class B Cash
Collateral Account and apply the same in accordance with the terms of
Section 3.5(c) of the Intercreditor Agreement, (b) no portion of such
amount shall be applied by the Borrower for any other purpose and (c) no
portion of such amount until so applied shall be commingled with other funds
held by the Borrower.
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]
TO
REVOLVING
CREDIT AGREEMENT
FINAL
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the
“Borrower”),
hereby certifies to RZB
FINANCE LLC
(the
“Liquidity
Provider”),
with
reference to the REVOLVING
CREDIT AGREEMENT (2007-1B)
dated as
of April 10, 2007, 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 Class B
Cash Collateral Account in accordance with Section 3.5(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 Class B Cash Collateral Account in
accordance with Section 3.5(i) of the Intercreditor Agreement,
(ii) does not include any amount with respect to the payment of principal
of, or premium on, the Class B Certificates, or principal of, or interest
or premium on, the Class A Certificates or the Class C Certificates,
(iii) was computed in accordance with the provisions of the Class B
Certificates, the Liquidity Agreement, the Class B 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 Class B Cash
Collateral Account and apply the same in accordance with the terms of
Section 3.5(i) of the Intercreditor Agreement, (b) no portion of such
amount shall be applied by the Borrower for any other purpose and (c) no
portion of such amount until so applied shall be commingled with other funds
held by the Borrower.
(5) The
Borrower hereby requests that the Advance requested hereby be a Base Rate
Advance [and that such Base Rate Advance be converted into a LIBOR Advance
on
the third Business Day following your receipt of this notice.]
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement,
(A) the making of the Final Advance as requested by this Notice of
Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement;
and
(B) following the making by the Liquidity Provider of the Final Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
IN
WITNESS WHEREOF,
the
Borrower has executed and delivered this Notice of Borrowing as of the ____
day
of _________, ____.
|
WILMINGTON
TRUST COMPANY,
not in its individual capacity but solely as Subordination Agent,
as
Borrower
|
||
|
By:
|
||
|
Name:
Title:
|
||
SCHEDULE I
TO
FINAL
ADVANCE NOTICE OF BORROWING
[Insert
copy of computations in accordance with Final Advance Notice of
Borrowing]
TO
REVOLVING
CREDIT AGREEMENT
NOTICE
OF TERMINATION
[Date]
Wilmington
Trust Company,
as
Subordination Agent, as Borrower
Rodney
Square North
1100
North Market Square
Wilmington,
DE 19890-0001
Attention:
Corporate Trust Administration
Revolving
Credit Agreement dated as of April 10, 2007 between Wilmington Trust Company,
as
Subordination Agent, as agent and trustee for the Continental Airlines Pass
Through Trust, 2007-1B-[O/S], as Borrower, and RZB Finance LLC (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 3.5(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,
RZB
FINANCE LLC
as
Liquidity Provider
|
||
|
By:
|
||
|
Name:
Title:
|
||
|
By:
|
||
|
Name:
Title:
|
||
cc:
Wilmington
Trust Company,
as Class B Trustee
as Class B Trustee
TO
REVOLVING
CREDIT AGREEMENT
NOTICE
OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving
Credit Agreement dated as of April 10, 2007, between Wilmington Trust Company,
as Subordination Agent, as agent and trustee for the Continental Airlines Pass
Through Trust, 2007-1B-[O/S], as Borrower, and RZB Finance LLC (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
VI
Page 1
Page 1
MASTER
GUARANTY AGREEMENT
Guaranty
Agreement dated as of September 1, 1997 issued by RAIFFEISEN ZENTRALBANK
ÖSTERREICH AKTIENGESELLSCHAFT, a banking institution organized and existing
under the laws of the Republic of Austria (the “Guarantor”)
for
the benefit of the Beneficiaries (as hereinafter defined);
PRELIMINARY
STATEMENT
This
Agreement is issued for the benefit of certain persons who extend credit
to RZB
FINANCE LLC, a Delaware limited liability company and a wholly-owned subsidiary
of the Guarantor (“RZB
Finance”),
or to
whom RZB Finance has extended credit.
NOW,
THEREFORE, IT IS AGREED:
SECTION
1. Definitions.
Unless
otherwise defined in this Agreement, capitalized terms shall have the meaning
specified below; definitions expressed in the singular shall import the plural
and vice
versa:
“Beneficiary”
means
any person which holds Certified Guaranteed Obligations and their respective
successors and assigns.
“Certified
Guaranteed Obligations”
means
any RZB Finance Obligation (i) for which Guarantor has executed a Certificate
in
the form of Exhibit A to this Agreement or (ii) which contains a statement
to
the effect that the obligations of RZB Finance under or in connection with
such
agreement or instrument shall constitute “Certified Guaranteed Obligations”
under this Agreement. No particular words shall be required in any such
statement; any words to such effect shall be sufficient including, without
limitation, the following:
“The
obligations of RZB FINANCE LLC, a Delaware limited liability company
(“RZB
Finance”)
under
or in connection with this document and the documents executed and delivered
or
issued by RZB Finance in connection with this document constitute Certified
Guaranteed Obligations for purposes of the Master Guaranty Agreement dated
as of
September 1, 1997 issued by Raiffeisen Zentralbank Osterreich
Aktiengesellschaft.”
“Credit
Document”
means
any document or instrument evidencing a RZB Finance Obligation.
“Final
Payment Date”
means
the earliest of (x) the date on which the maturities of any Certified Guaranteed
Obligations are accelerated pursuant to the relevant Credit Documents or
applicable law, or the date on which any bankruptcy, insolvency or similar
proceeding
is commenced by or against RZB Finance or (y) the date on which any Guarantor
Default occurs.
“Guarantor
Default”
means
(A) (i)any default by the Guarantor of any of its obligations under this
Agreement or (ii) any representation by the Guarantor in this Agreement shall
prove to be untrue in any material respect as of the date when made and,
in each
case, such default or misrepresentation shall not be cured within 30 days
after
the receipt by the Guarantor from the relevant Beneficiary of a written notice
describing the Guarantor Default and (B) any receivership proceedings by
the
banking authorities in the Republic of Austria or any bankruptcy, insolvency
or
similar proceeding for the relief of financially distressed debtors shall
be
commenced by or against the Guarantor and, as to any involuntary such
proceeding, the same shall not be discharged within the time provided by
applicable law for the dispute of such involuntary proceedings.
“Payment
Date”
shall
mean, with respect to any Certified Guaranteed Obligation, (i) the date for
the
payment thereof (after giving effect to any applicable grace period) specified
in the relevant Credit Document or if such Certified Guaranteed Obligation
is
payable on demand or if no time for payment therefor is specified, the date
on
which the Beneficiary demands, in writing, payment thereof from RZB Finance
and
(ii) the Final Payment Date for such obligations.
“RZB
Finance Obligation”
means
any obligation (whether for principal, interest or otherwise), now existing
or
hereafter arising (including future advances) prior to the Termination Date,
and
whether direct, contingent or otherwise, of RZB Finance to any Person,
provided
however,
in no
event shall the term “RZB Finance Obligation” include consequential, incidental,
punitive or similar damages or interest accrued at default rates.
“Termination
Date”
means
the date on which the holder of a Certified Guaranteed Obligation receives
notice in writing that the Guarantor has terminated this Agreement.
SECTION
2. Guaranty
Agreement.
2.1 Continuing
Guaranty of Payment.
(a) The
Guarantor irrevocably, absolutely and unconditionally guarantees to each
Beneficiary the payment all Certified Guaranteed Obligations owed to such
Beneficiary on the Payment Date for such obligations. If any Certified
Guaranteed Obligation shall not be paid on the Payment Date for such Certified
Guaranteed Obligation, the Guarantor shall pay the amount thereof to the
relevant Beneficiary no later than 30 days after such Beneficiary has given
the
Guarantor written notice(a “Default
Notice”)
that
such Final
-2-
Payment
Date has occurred and that such obligations have not been paid, provided
that,
no
Default Notice shall be required in connection with a Guarantor
Default.
(b) This
is a
guaranty of payment rather than of collection. This is also a continuing
guaranty and all liabilities to which this Agreement applies, or may apply,
under the terms hereof shall be conclusively presumed to have been created
in
reliance hereon, without further notice to, or from, the Guarantor.
(c) This
Agreement may be terminated or modified, as to any Beneficiary, by the Guarantor
at any time and such termination or modification, as the case may be, shall
be
effective, as to any Beneficiary, as at the Termination Date, provided
that,
no such
termination or modification shall affect (i) the obligations of the Guarantor
under this Agreement with respect to Certified Guaranteed Obligations which
arose prior to such Termination Date or which arose after such Termination
Date
pursuant to a commitment, letter of credit, acceptance, certification or
similar
undertaking by RZB Finance prior to such Termination Date or (ii) the obligation
of the Guarantor to pay interest on the Certified Guaranteed Obligations,
to the
extent provided in the relevant Credit Document and this Agreement or to
pay the
amounts otherwise provided in this Agreement with respect to the Certified
Guaranteed Obligations described in clause (i) above.
2.2 Nature
of Obligations.
The
Certified Guaranteed Obligations shall be deemed to be the direct and primary
obligations of the Guarantor to the same extent and with the same effect
as if
the Certified Guaranteed Obligation had been incurred by the Guarantor. Without
limiting the generality of the foregoing, the obligations of the Guarantor
shall
remain in force irrespective of:
(i) the
existence or absence of any legal action (including, without limitation,
the
filing of proofs of claim in bankruptcy) to enforce, collect or realize upon,
the Certified Guaranteed Obligations or the Credit Documents or any security
or
other guaranty therefor, the issuance of any judgment therefor or the execution
of any such judgment, or
(ii) any
other
agreement or circumstance which might otherwise constitute a defense available
to, or discharge of, a guarantor or surety of any type (including, without
limitation, any defense based upon an election of remedies or the taking
of any
action which may destroy or impair the Guarantor’s rights of subrogation,
indemnity and/or contribution or upon any statute of limitations or
anti-deficiency statute).
-3-
NOTWITHSTANDING
THE FOREGOING OR ANYTHING ELSE IN THIS AGREEMENT, the Guarantor shall be
entitled to assert any defense of RZB Finance or any right of setoff of RZB
Finance arising out of the transactions which gave rise to the RZB Finance
Obligations, except
that,
any
defense based upon the statute of limitations shall be based solely on the
obligations of the Guarantor under this Agreement, irrespective of whether
the
statute of limitations has run with respect to the underlying RZB Finance
Obligations.
The
obligations of the Guarantor under this Agreement are several and independent
of, and may be enforced regardless of the existence of, any other agreement
or
obligation (direct or contingent) of the Guarantor or any other guarantor
or
person obligated with respect to the Certified Guaranteed
Obligations.
2.3 Evidence.
Any
Beneficiary may use a photocopy of this Agreement as evidence of the obligations
of the Guarantor under this Agreement, and any such photocopy shall be deemed
to
be an original and the “best evidence” of such obligations.
SECTION
3. Special
Agreements.
3.1 Payments.
All
payments to each Beneficiary provided for hereunder shall be made in the
currency in which the relevant Certified Guaranteed Obligation is denominated
or
required to be paid in the related Credit Documents, in freely transferable
and
immediately available funds, at the office specified for payments to the
Beneficiary in the Credit Documents or, if not so specified, at such place
as
the Beneficiary may specify in New York City or Vienna, Austria and for the
account of such office of each Beneficiary as each Beneficiary may designate.
Each such payment shall:
(i) be
exempt
from, and without reduction by reason of, any Tax, or
(ii) to
the
extent that any such payment shall be subject to any Tax, be accompanied
by an
additional payment by the Guarantor of such amount as may be necessary so
that
the net amount realized by each Beneficiary (after taking into account all
applicable Taxes) is the same as each Beneficiary would have realized had
such
payment not been subject to such Tax.
“Tax”
means and includes any present or future tax, levy, cost or charge of any
nature
imposed by any government or any authority or political subdivision of the
Republic of Austria or any other jurisdiction from which any payment under
this
Agreement is made by the Guarantor, excluding taxes on or measured by the
net
income or gain of any Beneficiary imposed by any jurisdiction in which the
principal or relevant office of such Beneficiary is located.
-4-
3.2 Waivers.
Except
to the extent required by law which cannot be waived and except as expressly
provided herein, the Guarantor (a) waives notice of acceptance of this Agreement
and notice of any liability to which it may apply, (b) waives diligence,
presentment or acceleration of maturities, demand of payment, protest, notice
of
dishonor, nonpayment of any such liabilities, (c) waives suit, filing of
proofs
of claim in bankruptcy or, except to the extent specifically provided in
this
Agreement, the taking of other action or the making of any demand by any
Beneficiary against, and the giving of any other notice to, any person liable
thereon (including RZB Finance, the Guarantor or any other guarantor or Person)
or any property providing security therefor, and waives any right to compel
any
Beneficiary to commence any such suit, to take any such action or to make
any
such demand, and (d) agrees that each Beneficiary may deal with the RZB Finance
Obligations without any notice to, or consent by, the Guarantor, without
incurring responsibility to the Guarantor, and without impairing or releasing
the obligations of the Guarantor hereunder.
3.3 Amounts
Reclaimed.
If at
any time any payment or other amount received or realized by any Beneficiary
and
applied to any Certified Guaranteed Obligation is repaid by or recovered
from
such Beneficiary in any bankruptcy or similar proceeding, the obligations
of the
Guarantor under this Agreement shall be applicable to such amounts to the
same
extent as if such amounts had never been paid.
SECTION
4. Representations,
Warranties and Agreements.
4.1 Power
and Authority; No Conflicts.
The
Guarantor represents and warrants that: (a) it has the power to enter into
and
perform its obligations under this Agreement and the obligations of the
Guarantor under this Agreement are duly authorized, legal, valid and binding
obligations, enforceable in accordance with their respective terms; (b) all
action required as a condition thereto (including, without limitation, the
obtaining of all corporate, governmental or other approvals or the making
of any
governmental registrations or filings) has been taken, and (c) the issuance
and
performance of this Agreement does not and will not violate any law, permit,
agreement or instrument (including, without limitation, the Guarantor’s
organizational papers and any director or shareholder resolutions or consent)
to
which the Guarantor is a party or is subject, or result in the imposition
of any
lien or security interest upon any of the Guarantor’s assets.
4.2 Taxes.
Under
applicable law presently in effect in the Guarantor’s jurisdiction of
organization, no stamp, registration, transfer or other taxes or charges
are or
will be payable in
-5-
respect
of the entering into, performance or enforcement of this Agreement and no
payments under this Agreement will be subject to any Tax.
SECTION
5. Miscellaneous.
5.1 Payment
of Expenses.
In the
event of a Guarantor Default, the Guarantor agrees to pay and hold each
Beneficiary harmless from and against (i) the reasonable out-of-pocket costs
and
expenses of each Beneficiary arising in connection with the enforcement of
this
Agreement (including, without limitation, the reasonable fees and expenses
of
counsel for such Beneficiary), (ii) any and all stamp, excise, filing and
other
similar taxes and fees payable in connection with the enforcement of this
Agreement and (iii) all liabilities (including interest and penalties, if
any)
with respect to or resulting from any delay by the Guarantor in paying or
omitting to pay such taxes and fees.
5.2 Modification.
This
Agreement may be modified only by an instrument in writing signed by the
Guarantor, provided
that,
any
modification of any provision of this Agreement by the Guarantor shall be
subject to the provisions of Section 2.1(c) above.
5.3 Governing
Law.
This
Agreement and the rights and obligations of the parties hereunder shall be
governed by, and construed in accordance with, and the law of the State of
New
York, without giving effect to the conflicts of law principles
thereof.
5.4 Notices.
Communications given to the Guarantor in connection with this Agreement shall
be
in English and shall be effective when received. Written notices may be
delivered by mail, courier, by hand, telex or telecopier, to the address
or
telex or telecopier number set forth opposite the Guarantor’s signature
below.
5.5 Descriptive
Headings.
The
descriptive headings used in this Agreement are for convenience only and
shall
not be deemed to affect the meaning or construction of any provision
hereof.
5.6 Benefit
of Agreement.
This
Agreement shall be binding upon the Guarantor and its successors and assigns
and
shall inure to the benefit of, and be enforceable by, each
Beneficiary.
5.7 Consent
to Jurisdiction, etc.
Any
legal action or proceeding against the Guarantor with respect to this Agreement
shall be brought in the courts of the State of New York or of the United
States
of America for the Southern District of New York, as each Beneficiary may
elect,
and, by execution and delivery of this Agreement, the Guarantor accepts,
for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of the
-6-
aforesaid
courts. The Guarantor irrevocably consents to the service of process out
of any
of the aforementioned courts in any such action or proceeding by (i) the
mailing
of copies thereof by registered or certified airmail, postage prepaid, to
the
Guarantor at its address for notices as specified herein, such service to
become
effective 30 days after such mailing and (ii) the service of said process
upon
RZB Finance at its principal office in the City of New York.
5.8 Judgment
Currency.
If, for
purposes of obtaining a judgment for amounts due hereunder, any Certified
Guaranteed Obligation must be converted from the currency (the “debt
currency”)
in
which it is denominated under the Credit Documents or this Agreement into
another currency (the “judgment
currency”),
the
Guarantor agrees:
(i) that
such
conversion shall be made on the basis of the prevailing applicable buying
spot
rate of exchange on the date before, and in the location at which, such judgment
is to be rendered, and
(ii) to
pay to
the relevant Beneficiary the difference, if any, between (x) the amount due
under the terms of this Agreement in the debt currency and (y) the amount
in the
debt currency which each Beneficiary is able to obtain with any payment by
the
Guarantor in the judgment currency on the date of such payment, or as soon
thereafter as is practicable.
The
provisions of this Section 5.8 shall constitute a separate obligation of
the
Guarantor, independent from its other obligations hereunder, and shall not
be
affected by or merged into any judgment obtained for other sums due hereunder,
all with the same effect as if such provisions were set forth in a separate
agreement. In further consideration for such obligation, each Beneficiary
agrees
that, notwithstanding any judgment for amounts due hereunder which is rendered
in other than the debt currency, the Guarantor shall not be required to pay
to
each Beneficiary in the debt currency more than the amount due to each
Beneficiary in accordance with the terms hereof.
5.9 Survival.
The
provisions of Sections 3.1, 3.3, 5.1, 5.7, 5.8, 5.11, 5.12, and this Section
5.9
shall survive the termination and cancellation of this Agreement.
5.10 Credit
Documents.
Without
limiting the provisions of Section 3.2, the Guarantor acknowledges and agrees
that no Beneficiary shall have any duty or responsibility, either initially
or
on a continuing basis, to provide to the Guarantor (a) any credit or other
information relating to RZB Finance or any other person, the RZB Finance
Obligations or the Credit Documents or any
-7-
person
obligated thereunder or the performance by any such person of its obligations
thereunder or (b) any amendment or alteration of, or consent with respect
to,
any Credit Document or the RZB Finance Obligations.
5.11 Immunity.
The
Guarantor represents, warrants and agrees that (i) the entering into of this
Agreement and the performance of the transactions contemplated hereby constitute
commercial activities carried on, and with direct effects, within the United
States of America, (ii) the Guarantor is not entitled to, and hereby expressly
and irrevocably waives (to the full extent permitted by applicable law),
any
present or future claim to any immunity (whether characterized as sovereign
immunity or otherwise) from any legal proceedings (whether in the United
States
of America or elsewhere) to enforce or collect upon this Agreement (including,
without limitation, immunity from service of process and from jurisdiction
of
any court or tribunal, immunity of any of its property from attachment upon
or
prior to judgment or in aid of execution, and from execution, upon a judgment)
with respect to itself or its property in any action or proceeding in connection
with, or relating to, this Agreement or its obligations under or in connection
with this Agreement and (iii) the provisions for service of process set forth
in
this Agreement constitute, among other things, a special arrangement for
service
of process between each Beneficiary and the Guarantor for purposes of the
Foreign Sovereign Immunities Act of 1976, as amended.
5.12 WAIVER
OF JURY TRIAL.
THE
GUARANTOR AND, BY ACCEPTING THE BENEFITS HEREOF, EACH BENEFICIARY HEREBY
WAIVE
TRIAL BY JURY IN CONNECTION WITH ANY ACTION OR PROCEEDING OF ANY NATURE
WHATSOEVER ARISING UNDER, OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND
THE
TRANSACTIONS CONTEMPLATED HEREBY AND ANY COURSE OF DEALING OR REPRESENTATIONS,
WARRANTIES, STATEMENTS OR AGREEMENTS MADE OR ALLEGEDLY MADE IN CONNECTION
HEREWITH AND IN CONNECTION WITH ANY CLAIM, COUNTERCLAIM, OFFSET OR DEFENSE
ARISING IN CONNECTION WITH SUCH ACTION OR PROCEEDING, WHETHER ARISING UNDER
STATUTE (INCLUDING ANY FEDERAL OR STATE CONSTITUTION) OR UNDER THE LAW OF
CONTRACT, TORT OR OTHERWISE AND INCLUDING, WITHOUT LIMITATION, ANY CHALLENGE
TO
THE LEGALITY, VALIDITY, BINDING EFFECT OR ENFORCEABILITY OF THIS SECTION
5.12 OR
THIS AGREEMENT.
-8-
IN
WITNESS WHEREOF, the Guarantor has caused this Agreement to be executed and
delivered by its duly authorized officer(s) as of the date first above
written.
|
Addresses
|
RAIFFEISEN
ZENTRALBANK
|
|
Am
Stadtpark 9
1030
Vienna
Austria
|
ÖSTERREICH
AKTIENGESELLSCHAFT
|
|
Telefax:
01143-1-71707-1715
|
By
________________________________________________
|
|
Title:
______________________________________________
|
|
|
1133
Avenue of the Americas
|
Telefax
#: ___________________________________________
|
|
New
York, New York 10036
|
1st
Original
MASTER
GUARANTY CERTIFICATE NO. G736.759
Certificate
dated as of April 10, 2007, issued by RAIFFEISEN ZENTRALBANK ÖSTERREICH
AKTIENGESELLSCHAFT, a banking institution organized and existing under the
law
of the Republic of Austria (the “Guarantor”),
for
the benefit of the following named person or entity in connection with
obligations of RZB Finance LLC, a Delaware limited liability company and
wholly
owned subsidiary of the Guarantor (“RZB
Finance”),
to
such person or entity:
Name
of
Beneficiary: Wilmington Trust Company (“WTC”),
as
Subordination Agent and as Agent and Trustee for each of Continental Airlines
Pass Through Trust 2007-1A and Continental Airlines Pass Through Trust
2007-1B.
Jurisdiction
of Organization: Delaware.
| 1. |
This
Certificate is issued by the Guarantor pursuant to the MASTER GUARANTY
AGREEMENT (the “Master
Guaranty Agreement”)
dated as of September 1, 1997 issued by the
Guarantor.
|
| 2. |
The
RZB Finance Obligations (as defined in the Master Guaranty Agreement)
that
are evidenced by the following identified documents and instruments,
and
the documents and instruments executed and delivered or issued by
RZB
Finance in connection therewith, as any of the same may be from time
to
time amended, modified, restated, supplemented, replaced or superseded,
and as such RZB Finance Obligations may be extended pursuant to such
documents and instruments, constitute Certified Guaranteed Obligations
for
purposes of the Master Guaranty
Agreement:
|
(a) Revolving
Credit Agreement (2007-1A) dated as of April 10, 2007 between WTC, as Borrower,
and RZB Finance, as Liquidity Provider, relating to the 5.983% Continental
Airlines Pass Through Certificates, Series 2007-1A (the “Class
A Liquidity Facility”);
(b) Revolving
Credit Agreement (2007-1B) dated as of April 10, 2007 between WTC, as Borrower,
and RZB Finance, as Liquidity Provider, relating to the 6.903% Continental
Airlines Pass Through Certificates, Series 2007-1B (the “Class
B Liquidity Facility”
and,
together with the Class A Liquidity Facility, collectively, the “Liquidity
Facilities”);
and
(c) Intercreditor
Agreement dated as of April 10, 2007 among WTC, as Trustee of Continental
Airlines Pass Through Trust 2007-1A, Continental Airlines Pass Through Trust
2007-1B and Continental Airlines Pass Through Trust 2007-1C, WTC, as
Subordination Agent and RZB Finance.
| 3. |
The
above-named person or entity (and its successors and assigns) shall
be
deemed a Beneficiary for all purposes of the Master Guaranty Agreement
for
so long as it is the holder of said Certified Guaranteed
Obligations.
|
| 4. |
The
Guarantor confirms and represents, warrants and agrees to and for
the
benefit of said Beneficiary that (a) the representations and warranties
of
the Guarantor set forth in the Master Guaranty Agreement are true
and
correct as of the date of this Certificate and shall survive the
execution
and delivery of this Certificate, (b) the waivers and agreements
set forth
in Sections 5.7, 5.11 and 5.12 of the Master Guaranty Agreement are
in
full force and effect and (c) it will perform and observe the agreements
set forth in the Master Guaranty
Agreement.
|
| 5. |
The
address and telecopy number of the Guarantor are set forth opposite
the
name of the Guarantor at the end of this Certificate. Notice of acceptance
of this Certificate or the benefits of the Master Guaranty agreement
is
hereby waived. This Certificate shall be governed by and construed
in
accordance with the law of the State of New York, without giving
effect to
the conflicts of law provisions thereof that would require the application
of the law of any other jurisdiction.
|
| 6. |
Notwithstanding
the provisions of Section 2.1 of the Master Guaranty Agreement to
the
contrary, if any portion of the Certified Guaranteed Obligations
set forth
in paragraph 2 of this Certificate shall not be paid as and when
such
Certified Guaranteed Obligations are due and payable under the Credit
Documents the Guarantor shall pay the amounts thereof to the Beneficiary
as and when such Certified Guaranteed Obligations are due and payable
under the Credit Documents and in accordance with the terms thereof
(including, without limitation, Sections 2.02(a), (b), (c), (d) and
(e) of
the Liquidity Facilities); provided that, RZB Finance shall have
received
a copy of the relevant Notice of Borrowing under the relevant Liquidity
Facility.
|
| 7. |
Notwithstanding
the provisions of Section 2.1 or 5.2 of the Master Guaranty Agreement
to
the contrary, so long as there are any RZB Finance Obligations under
any
of the Credit Documents, the Guarantor agrees not to terminate the
Master
Guaranty Agreement or this Certificate without the prior written
consent
of the Beneficiary. This Certificate supplements the Master Guaranty
Agreement dated as of September 1, 1997 without giving effect to
any
amendment or consent to such amendment or modification thereof after
the
date hereof, unless the Beneficiary has provided its prior written
consent
to such amendment or modification. Accordingly, notwithstanding the
provisions of Section 5.2 of the Master Guaranty Agreement to the
contrary, no such amendment or modification shall affect any of the
rights
or interests of the Beneficiary under this Certificate or the Master
Guaranty Agreement without such prior written
consent.
|
| 8. |
Notwithstanding
the provisions of Section 5.2 of the Master Guaranty Agreement to
the
contrary, the Guarantor waives all defenses and rights to set off
relating
to the RZB Finance Obligations, except for any defense that the applicable
|
2
conditions
of Borrowing set forth in Section 4.02 of the Liquidity Facilities have not
been
satisfied.
3
IN
WITNESS WHEREOF, the Guarantor has caused this Certificate to be executed
and
delivered by its duly authorized officer or representative.
|
Address
|
||
| Am
Stadtpark 9
1030
Vienna Austria
|
RAIFFEISEN ZENTRALBANK ÖSTERREICH
AKTIENGESELLSCHAFT
|
|
|
Telecopy:
011
43 1 71707 3898
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
||
INTERCREDITOR
AGREEMENT
(2007-1)
Dated
as
of
April
10,
2007
AMONG
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity
but
solely as Trustee under the
Continental
Airlines Pass Through Trust 2007-1A,
Continental
Airlines Pass Through Trust 2007-1B,
and
Continental
Airlines Pass Through Trust 2007-1C
RZB
FINANCE LLC,
as
Class
A Liquidity Provider
and
as
Class
B 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
i
Page
INTERCREDITOR
AGREEMENT
INTERCREDITOR
AGREEMENT dated as of April 10, 2007, among WILMINGTON TRUST COMPANY, a Delaware
corporation ("WTC"),
not
in its individual capacity but solely as Trustee of each Trust (each as defined
below); RZB FINANCE LLC, a limited liability company organized under the laws
of
Delaware ("RZB"),
as
Class A Liquidity Provider and Class B 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, Continental will issue on a recourse basis up to
(and including) three series of Equipment Notes to finance the purchase of
the
related Aircraft;
WHEREAS,
pursuant to the Financing Agreements, each Trust will acquire Equipment Notes
having an interest rate equal to the interest rate applicable to the
Certificates to be issued by such Trust;
WHEREAS,
pursuant to each Trust Agreement, the Trust created thereby proposes to issue
a
single class of Certificates (a "Class")
bearing the interest rate and having the final distribution date described
in
such Trust Agreement on the terms and subject to the conditions set forth
therein;
WHEREAS,
pursuant to the Underwriting Agreement, the Underwriters propose to purchase
the
Class A Certificates issued by the Class A Trust, the Class B Certificates
issued by the Class B Trust and the Class C Certificates issued by the Class
C
Trust in the aggregate face amount set forth opposite the name of such Trust
on
Schedule I thereto on the terms and subject to the conditions set forth
therein;
WHEREAS,
the Class A Liquidity Provider proposes to enter into a revolving credit
agreement relating to the Class A Certificates and the Class B Liquidity
Provider proposes to enter into a revolving credit agreement relating to the
Class B Certificates, in each case with the Subordination Agent, as agent for
the Trustee of the applicable Trust, respectively, for the benefit of the
Certificateholders of such Trust;
WHEREAS,
Raiffeisen Zentralbank Österreich Aktiengesellschaft, a banking institution
organized and existing under the laws of the Republic of Austria (the
"Guarantor"),
will
guarantee in full, pursuant to a master guaranty certificate dated as of the
date hereof and issued by the Guarantor pursuant to that certain Master Guaranty
Agreement, dated as of September 1, 1997, issued by the Guarantor (collectively,
the "Guarantee
Agreement"),
the
obligations of RZB under the Class A Liquidity Facility and the Class B
Liquidity Facility; and
WHEREAS,
it is a condition precedent to the obligations of the Underwriters under the
Underwriting Agreement that the Subordination Agent, the Trustees and the
Liquidity Providers agree to the terms of subordination set forth in this
Agreement in respect of each Class of Certificates, and the Subordination Agent,
the Trustees and the Liquidity Providers, 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
for
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" means "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.
"Actual
Disposition Event" means,
in
respect of any Equipment Note: (i) the disposition of the Collateral (as
defined in the Indenture pursuant to which such Equipment Note was issued)
securing such Equipment Note, (ii) the occurrence of the mandatory
redemption date for such Equipment Note following an Event of Loss (as defined
in such Indenture) with respect to the Aircraft which secured such Equipment
Note or (iii) the sale of such Equipment Note.
"Additional
Certificateholders"
has the
meaning specified in Section 9.1(d).
"Additional
Certificates"
has the
meaning specified in Section 9.1(d).
"Additional
Equipment Notes"
has the
meaning specified in Section 9.1(d).
"Additional
Trust"
has the
meaning specified in Section 9.1(d).
"Additional
Trust Agreement"
has the
meaning specified in Section 9.1(d).
"Additional
Trustee"
has the
meaning specified in Section 9.1(d).
"Administration
Expenses"
has the
meaning specified in clause "first" of Section 3.2.
"Advance",
with
respect to any Liquidity Facility, means any Advance as defined in such
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.
"Aircraft"
means,
with respect to each Indenture, the "Aircraft" referred to therein.
"Appraisal"
has the
meaning specified in Section 4.1(a)(iv).
"Appraised
Current Market Value"
of any
Aircraft means the lower of the average and the median of the three most recent
Post-Default Appraisals of such Aircraft.
"Appraisers"
means
Aircraft Information Services, Inc., BK Associates, Inc. and Morten Beyer and
Agnew, Inc. or, so long as the Person entitled or required hereunder to select
such Appraiser acts reasonably, any other nationally recognized appraiser
reasonably satisfactory to the Subordination Agent and the Controlling
Party.
"Assignment
and Assumption Agreements"
means
each of the Assignment and Assumption Agreements to be executed between a
Trustee and trustee of the relevant Successor Trust in accordance with the
relevant Trust Agreement, as the same may be amended, modified or supplemented
from time to time.
"Available
Amount"
means,
with respect to any Liquidity Facility on any date, the Maximum Available
Commitment (as defined therein) on such date.
"Bankruptcy
Code"
means
the United States Bankruptcy Code, 11 U.S.C. Sections 101 et
seq.
"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 any Trustee,
the Subordination Agent or any Loan Trustee maintains its Corporate Trust Office
and that, solely with respect to the making and repayment of Advances under
any
Liquidity Facility, also is a "Business Day" as defined in such Liquidity
Facility.
"Cash
Collateral Account"
means
the Class A Cash Collateral Account or the Class B Cash Collateral Account,
as
applicable.
"Certificate"
means a
Class A Certificate, a Class B Certificate or a Class C Certificate, as
applicable.
"Certificate
Buy-Out Event"
means
that a Continental Bankruptcy Event has occurred and is continuing and the
following events have occurred: (A) (i) the 60-Day Period has expired, and
(ii)
Continental has not entered into one or more agreements under Section
1110(a)(2)(A) of the Bankruptcy Code to perform all of its obligations under
all
of the Indentures or, if it has entered into such agreements, has at any time
thereafter failed to cure any default under any of the Indentures in accordance
with Section 1110(a)(2)(B) of the Bankruptcy Code; or (B) if prior to the expiry
of the 60-Day Period, Continental shall have abandoned any
Aircraft.
"Certificateholder"
means
any holder of one or more Certificates.
"Class"
has the
meaning assigned to such term in the preliminary statements to this
Agreement.
"Class
A 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 Class A Liquidity Facility
pursuant to Section 3.5(c), 3.5(d) or 3.5(i) shall be deposited.
"Class
A Certificateholder"
means,
at any time, any holder of one or more Class A Certificates.
"Class
A Certificates"
means
the certificates issued by the Class A Trust, substantially in the form of
Exhibit A to the Class A Trust Agreement, and authenticated by the Class A
Trustee, representing fractional undivided interests in the Class A Trust,
and
any certificates issued in exchange therefor or replacement thereof pursuant
to
the terms of the Class A Trust Agreement.
"Class
A Liquidity Facility"
means,
initially, the Revolving Credit Agreement dated as of the date hereof, between
the Subordination Agent, as agent and trustee for the Class A Trust, and the
initial Class A Liquidity Provider, and from and after the replacement of such
Revolving Credit Agreement pursuant hereto, the Replacement Liquidity Facility
therefor, if any, in each case as amended, supplemented or otherwise modified
from time to time in accordance with its terms.
"Class
A Liquidity Provider"
means
RZB or, if applicable, any Replacement Liquidity Provider which has issued
a
Replacement Liquidity Facility to replace any Class A Liquidity Facility
pursuant to Section 3.5(e).
"Class
A Trust"
means
(i) prior to the Transfer, the Continental Airlines Pass Through Trust 2007-1A-O
created and administered pursuant to the Class A Trust Agreement and (ii) after
the Transfer, the Continental Airlines Pass Through Trust 2007-1A-S created
and
administered pursuant to the Class A Trust Agreement.
"Class
A Trust Agreement"
means
(i) prior to the Transfer, the Basic Agreement, as supplemented by the
Supplement No. 2007-1A-O thereto dated as of the date hereof, governing the
creation and administration of the Continental Airlines Pass Through Trust
2007-1A-O and the issuance of the Class A Certificates, as the same may be
amended, supplemented or otherwise modified from time to time in accordance
with
its terms, and (ii) after the Transfer, the Basic Agreement, as
supplemented by the Supplement No. 2007-1A-S thereto, governing the
creation and administration of the Continental Airlines Pass Through Trust
2007-1A-S and the issuance of the Class A Certificates, as the same may be
amended, supplemented or otherwise modified from time to time in accordance
with
its terms.
"Class
A Trustee"
means
WTC, not in its individual capacity except as expressly set forth in the Class
A
Trust Agreement, but solely as trustee under the Class A Trust Agreement,
together with any successor trustee appointed pursuant thereto.
"Class
B Adjusted Interest" means,
as
of any Current Distribution Date: (I) any interest described in
clause (II) of this definition accruing prior to the immediately preceding
Distribution Date which remains unpaid and (II) interest at the Stated
Interest Rate for the Class B Certificates (A) for the number of days
during the period commencing on, and including, the immediately preceding
Distribution Date (or, if the Current Distribution Date is the first
Distribution Date, the Closing Date) and ending on, but excluding the Current
Distribution Date, on the Preferred B Pool Balance on such Current Distribution
Date and (B) on the principal amount calculated pursuant to
clauses (B)(i), (ii), (iii) and (iv) of the definition of Preferred B
Pool Balance for each Series B Equipment Note with respect to which a
disposition, distribution, sale or Deemed Disposition Event has occurred since
the immediately preceding Distribution Date (but only if no such event has
previously occurred with respect to such Series B Equipment Note), for each
day
during the period, for each such Equipment Note, commencing on, and including,
the immediately preceding Distribution Date (or, if the Current Distribution
Date is the first Distribution Date, the Closing Date) and ending on, but
excluding the date of disposition, distribution, sale or Deemed Disposition
Event with respect to such Equipment Note, Aircraft or Collateral, as the case
may be.
"Class
B 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 Class B Liquidity Facility
pursuant to Section 3.5(c), 3.5(d) or 3.5(i) shall be deposited.
"Class
B Certificateholder"
means,
at any time, any holder of one or more Class B Certificates.
"Class
B Certificates"
means
the certificates issued by the Class B Trust, substantially in the form of
Exhibit A to the Class B Trust Agreement, and authenticated by the Class B
Trustee, representing fractional undivided interests in the Class B Trust,
and
any certificates issued in exchange therefor or replacement thereof pursuant
to
the terms of the Class B Trust Agreement.
"Class
B Liquidity Facility"
means,
initially, the Revolving Credit Agreement dated as of the date hereof, between
the Subordination Agent, as agent and trustee for the Class B Trust, and the
initial Class B Liquidity Provider, and from and after the replacement of such
Revolving Credit Agreement pursuant hereto, the Replacement Liquidity Facility
therefor, if any, in each case as amended, supplemented or otherwise modified
from time to time in accordance with its terms.
"Class
B Liquidity Provider"
means
RZB or, if applicable, any Replacement Liquidity Provider which has issued
a
Replacement Liquidity Facility to replace any Class B Liquidity Facility
pursuant to Section 3.5(e).
"Class
B Trust"
means
(i) prior to the Transfer, the Continental Airlines Pass Through Trust 2007-1B-O
created and administered pursuant to the Class B Trust Agreement and (ii) after
the Transfer, the Continental Airlines Pass Through Trust 2007-1B-S created
and
administered pursuant to the Class B Trust Agreement.
"Class
B Trust Agreement"
means
(i) prior to the Transfer, the Basic Agreement, as supplemented by the
Supplement No. 2007-1B-O thereto dated as of the date hereof, governing the
creation and administration of the Continental Airlines Pass Through Trust
2007-1B-O and the issuance of the Class B Certificates, as the same may be
amended, supplemented or otherwise modified from time to time in accordance
with
its terms, and (ii) after the Transfer, the Basic Agreement, as
supplemented by the Supplement No. 2007-1B-S thereto, governing the
creation and administration of the Continental Airlines Pass Through Trust
2007-1B-S and the issuance of the Class B Certificates, as the same may be
amended, supplemented or otherwise modified from time to time in accordance
with
its terms.
"Class
B Trustee"
means
WTC, not in its individual capacity except as expressly set forth in the Class
B
Trust Agreement, but solely as trustee under the Class B Trust Agreement,
together with any successor trustee appointed pursuant thereto.
"Class
C Adjusted Interest" means,
as
of any Current Distribution Date, (I) any interest described in
clause (II) of this definition accruing prior to the immediately preceding
Distribution Date which remains unpaid and (II) interest at the Stated
Interest Rate for the Class C Certificates (A) for the number of days
during the period commencing on, and including, the immediately preceding
Distribution Date (or, if the Current Distribution Date is the first
Distribution Date, the Closing Date) and ending on, but excluding the Current
Distribution Date, on the Preferred C Pool Balance on such Current Distribution
Date and (B) on the principal amount calculated pursuant to
clauses (B)(i), (ii), (iii) and (iv) of the definition of
Preferred C Pool Balance for each Series C Equipment Note with respect to which
a disposition, distribution, sale or Deemed Disposition Event has occurred
since
the immediately preceding Distribution Date (but only if no such event has
previously occurred with respect to such Series C Equipment
Note),
for each day during the period, for each such Equipment Note, commencing on,
and
including, the immediately preceding Distribution Date (or, if the Current
Distribution Date is the first Distribution Date, the Closing Date) and ending
on, but excluding the date of disposition, distribution, sale or Deemed
Disposition Event with respect to such Equipment Note, Aircraft or Collateral,
as the case may be.
"Class
C Certificateholder"
means,
at any time, any holder of one or more Class C Certificates.
"Class
C Certificates"
means
the certificates issued by the Class C Trust, substantially in the form of
Exhibit A to the Class C Trust Agreement, and authenticated by the Class C
Trustee, representing fractional undivided interests in the Class C Trust,
and
any certificates issued in exchange therefor or replacement thereof pursuant
to
the terms of the Class C Trust Agreement.
"Class
C Trust"
means
(i) prior to the Transfer, the Continental Airlines Pass Through Trust 2007-1C-O
created and administered pursuant to the Class C Trust Agreement and (ii) after
the Transfer, the Continental Airlines Pass Through Trust 2007-1C-S created
and
administered pursuant to the Class C Trust Agreement.
"Class
C Trust Agreement"
means
(i) prior to the Transfer, the Basic Agreement, as supplemented by the
Supplement No. 2007-1C-O thereto dated as of the date hereof, governing the
creation and administration of the Continental Airlines Pass Through Trust
2007-1C-O and the issuance of the Class C Certificates, as the same may be
amended, supplemented or otherwise modified from time to time in accordance
with
its terms, and (ii) after the Transfer, the Basic Agreement, as supplemented
by
the Supplement No. 2007-1C-S thereto, governing the creation and administration
of the Continental Airlines Pass Through Trust 2007-1C-S and the issuance of
the
Class C Certificates, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"Class
C Trustee"
means
WTC, not in its individual capacity except as expressly set forth in the Class
C
Trust Agreement, but solely as trustee under the Class C Trust Agreement,
together with any successor trustee appointed pursuant thereto.
"Closing
Date"
means
April 10, 2007.
"Code"
means
the Internal Revenue Code of 1986, as amended from time to time, and the
Treasury Regulations promulgated thereunder.
"Collateral"
has the
meaning specified in the Indentures.
"Collection
Account"
means
the Eligible Deposit Account established by the Subordination Agent pursuant
to
Section 2.2(a)(i) which the Subordination Agent shall make deposits in and
withdrawals from in accordance with this Agreement.
"Consent
Period"
has the
meaning specified in Section 3.5(d).
"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 any 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 with respect to the Certificates of any Trust as of such
Distribution Date.
"Deemed
Disposition Event" means,
in
respect of any Equipment Note, the continuation of an Indenture Default in
respect of such Equipment Note without an Actual Disposition Event occurring
in
respect of such Equipment Note for a period of five years from the date of
the
occurrence of such Indenture Default.
"Delivery
Period Expiry Date"
means
the earlier of (a) June 30, 2009, or, if the Equipment Notes relating to all
the
New Aircraft (or Substitute Aircraft in lieu thereof) have not been purchased
by
the Trusts on or prior to such date due to any reason beyond the control of
Continental and not occasioned by Continental's fault or negligence, September
30, 2009 (provided
that, if
a labor strike occurs at The Boeing Company on or prior to either or both of
such dates referred to in this clause (a), such date or dates on or following
the commencement of such strike shall be extended by adding thereto the number
of days that such strike continued in effect) and (b) the date on which
Equipment Notes with respect to all New Aircraft (or Substitute Aircraft in
lieu
thereof) have been purchased by the Trusts in accordance with the Note Purchase
Agreement.
"Deposit
Agreement"
means,
with respect to any Class of Certificates, the Deposit Agreement pertaining
to
such Class, 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
Credit Suisse, New York Branch, as depositary under each Deposit
Agreement.
"Deposits"
with
respect to any Class of Certificates, has the meaning set forth in the Deposit
Agreement pertaining to such Class.
"Designated
Representatives"
means
the Subordination Agent Representatives, the Trustee Representatives and the
Provider 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 specified in Section 3.5(c).
"Downgrade
Event"
with
respect to any Liquidity Facility, has the meaning assigned to such term in
such
Liquidity Facility.
"Downgraded
Facility"
has the
meaning specified in Section 3.5(c).
"Drawing"
means
an Interest Drawing, a Final Drawing, a Non-Extension Drawing or a Downgrade
Drawing, as the case may be.
"Eligible
Deposit Account"
means
either (a) a segregated account with an Eligible Institution or (b) a segregated
trust account with the corporate trust department of a depository institution
organized under the laws of the United States of America or any one of the
states thereof or the District of Columbia (or any U.S. branch of a foreign
bank), having corporate trust powers and acting as trustee for funds deposited
in such account, so long as any of the securities of such depository institution
has a long-term unsecured debt rating of at least A3 from Moody's and a
long-term issuer credit rating of at least A- from Standard & Poor's. An
Eligible Deposit Account may be maintained with a Liquidity Provider so long
as
such Liquidity Provider is an Eligible Institution; provided
that
such Liquidity Provider shall have waived all rights of set-off and counterclaim
with respect to such account.
"Eligible
Institution"
means
(a) the corporate trust department of the Subordination Agent or any Trustee,
as
applicable, or (b) a depository institution organized under the laws of the
United States of America or any one of the states thereof or the District of
Columbia (or any U.S. branch of a foreign bank), which has a long-term unsecured
debt rating or issuer credit rating, as the case may be, from each Rating Agency
of at least A-3 or its equivalent.
"Eligible
Investments"
means
(a) investments in obligations of, or guaranteed by, the United States
government having maturities no later than 90 days following the date of such
investment, (b) investments in open market commercial paper of any corporation
incorporated under the laws of the United States of America or any state thereof
with a short-term unsecured debt rating issued by Moody's of at least P-1 and
a
short-term issuer credit rating issued by Standard & Poor's of at least A-1
having maturities no later than 90 days following the date of such investment
or
(c) investments in negotiable certificates of deposit, time deposits, banker's
acceptances, commercial paper or other direct obligations of, or obligations
guaranteed by, commercial banks organized under the laws of the United States
or
of any political subdivision thereof (or any U.S. branch of a foreign bank)
with
a short-term unsecured debt rating by Moody's of at least P-1 and a short-term
issuer credit rating by Standard & Poor's of at least A-1, having maturities
no later than 90 days following the date of such investment; provided,
however,
that
(x) all Eligible Investments that are bank obligations shall be denominated
in
U.S. dollars; and (y) the aggregate amount of Eligible Investments at any one
time that are bank obligations issued by any one bank shall not be in excess
of
5% of such bank's capital surplus; provided further
that any
investment of the types described in clauses (a), (b) and (c) above may be
made
through a repurchase agreement in commercially reasonable form with a bank
or
other financial institution qualifying as an Eligible Institution so long as
such investment is held by a third party custodian also qualifying as an
Eligible Institution; provided further,
however,
that in
the case of any Eligible Investment issued by a domestic branch of a foreign
bank, the income from such investment shall be from sources within the United
States for purposes of the Code. Notwithstanding the foregoing, no investment
of
the types described in clause (b) above which is issued or guaranteed by
Continental or any of its Affiliates, and no investment in the obligations
of
any one bank in excess of $10,000,000, shall be an Eligible Investment unless
a
Ratings Confirmation shall have been received with respect to the making of
such
investment.
"Equipment
Note Buy-Out Event"
means
the occurrence and continuation of (i) a Certificate Buy-Out Event or (ii)
an
Indenture Default under any Indenture that has continued for
a
period
of five years without an Actual Disposition Event occurring with respect to
the
Equipment Notes issued under such Indenture.
"Equipment
Note Special Payment"
means a
Special Payment on account of the redemption, purchase or prepayment of all
of
the Equipment Notes issued pursuant to an Indenture.
"Equipment
Notes"
means,
at any time, the Series A Equipment Notes, the Series B Equipment Notes and
the Series C Equipment Notes, collectively, and in each case, any Equipment
Notes issued in exchange therefor or replacement thereof pursuant to the terms
of the Indentures.
"Escrow
Agent"
means
Wells Fargo Bank Northwest, National Association, as escrow agent under each
Escrow and Paying Agent Agreement, together with its successors in such
capacity.
"Escrow
and Paying Agent Agreement"
means,
with respect to any Class of Certificates, the Escrow and Paying Agent Agreement
pertaining to such Class dated as of the date hereof between the Escrow Agent,
the Underwriters, the Trustee for such Class and the Paying Agent, as the same
may be amended, modified or supplemented from time to time in accordance with
the terms thereof.
"Escrow
Receipts"
has the
meaning assigned to such term in the Escrow and Paying Agent Agreement for
the
Class A Trust, Class B Trust or Class C Trust, as applicable.
"Excess
Liquidity Obligations"
means,
with respect to an Indenture, the amounts payable under clause (a) of the third
paragraph of Section 2.02 of such Indenture.
"Expected
Distributions"
means,
with respect to the Certificates of any Trust on any Current Distribution Date,
the difference between (A) the Pool Balance of such Certificates as of the
immediately preceding Distribution Date (or, if the Current Distribution Date
is
the first Distribution Date, the original aggregate face amount of Certificates
of such Trust) and (B) the Pool Balance of such Certificates as of the
Current Distribution Date calculated on the basis that (i) the principal of
the
Non-Performing Equipment Notes held in such Trust has been paid in full and
such
payments have been distributed to the holders of such Certificates, (ii) the
principal of the Performing Equipment Notes held in such Trust has been paid
when due (without giving effect to any Acceleration of Performing Equipment
Notes) and such payments have been distributed to the holders of such
Certificates and (iii) the principal of any Equipment Notes formerly held in
such Trust that have been sold pursuant to the terms hereof has been paid in
full and such payments have been distributed to the holders of such
Certificates, but without giving effect to any reduction in the Pool Balance
as
a result of any distribution attributable to Deposits occurring after the
immediately preceding Distribution Date (or, if the Current Distribution Date
is
the first Distribution Date, occurring after the initial issuance of the
Certificates of such Trust). For purposes of calculating Expected Distributions
with respect to the Certificates of any Trust, any Premium paid on the Equipment
Notes held in such Trust which has not been distributed to the
Certificateholders of such Trust (other than such Premium or a portion thereof
applied to the
payment
of interest on the Certificates of such Trust or the reduction of the Pool
Balance of such Trust) shall be added to the amount of such Expected
Distributions.
"Expiry
Date"
with
respect to any Liquidity Facility, has the meaning set forth in such Liquidity
Facility.
"Facility
Office"
means,
with respect to any Liquidity Facility, the office of the Liquidity Provider
thereunder, presently located at Bethel, Connecticut, or such other office
as
such Liquidity Provider from time to time shall notify the applicable Trustee
as
its "Facility Office" under any such Liquidity Facility; provided
that
such Liquidity Provider shall not change its Facility Office to another Facility
Office outside the United States of America except in accordance with Section
3.01, 3.02 or 3.03 of any such Liquidity Facility.
"Fee
Letters"
means,
collectively, (i) the Fee Letter dated as of the date hereof between RZB and
the
Subordination Agent with respect to the initial Liquidity Facilities and (ii)
any fee letter entered into between the Subordination Agent and any Replacement
Liquidity Provider in respect of such Liquidity Facilities.
"Final
Distributions"
means,
with respect to the Certificates of any Trust on any Distribution Date, the
sum
of (x) the aggregate amount of all accrued and unpaid interest on such
Certificates (excluding interest, if any, payable with respect to the Deposits
relating to such Trust) and (y) the Pool Balance of such Certificates as of
the
immediately preceding Distribution Date (less the amount of the Deposits for
such Class of Certificates as of such preceding Distribution Date other than
any
portion of such Deposits thereafter used to acquire Equipment Notes pursuant
to
the Note Purchase Agreement). For purposes of calculating Final Distributions
with respect to the Certificates of any Trust, any Premium paid on the Equipment
Notes held in such Trust which has not been distributed to the
Certificateholders of such Trust (other than such Premium or a portion thereof
applied to the payment of interest on the Certificates of such Trust or the
reduction of the Pool Balance of such Trust) shall be added to the amount of
such Final Distributions.
"Final
Drawing"
has the
meaning assigned to such term in Section 3.5(i).
"Final
Legal Distribution Date"
means
(i) with respect to the Class A Certificates and Class B Certificates, October
19, 2023, and (ii) with respect to the Class C Certificates, April 19,
2014.
"Financing
Agreement"
means
each of the Participation Agreements and the Note Purchase
Agreement.
"Guarantee
Agreement"
has the
meaning assigned to such term in the preliminary statements to this
Agreement.
"Guarantor"
has the
meaning assigned to such term in the preliminary statements to this
Agreement.
"Indenture"
means
each of the Trust Indentures entered into by the Loan Trustee and Continental,
pursuant to the Note Purchase Agreement, in each case as the same may be
amended, supplemented or otherwise modified from time to time in accordance
with
its terms.
"Indenture
Default"
means,
with respect to any Indenture, any Event of Default (as such term is defined
in
such Indenture) thereunder.
"Interest
Drawing"
has the
meaning specified in Section 3.5(a).
"Interest
Payment Date"
means,
with respect to any Liquidity Facility, each date on which interest is due
and
payable under such Liquidity Facility on a Downgrade Drawing, Non-Extension
Drawing or Final Drawing thereunder, other than any such date on which interest
is due and payable under such Liquidity Facility only on an Applied Provider
Advance (as such term is defined in such Liquidity Facility).
"Interest
Period"
has the
meaning specified in the Indentures.
"Investment
Earnings"
means
investment earnings on funds on deposit in the Trust Accounts net of losses
and
investment expenses of the Subordination Agent in making such
investments.
"Junior
Additional Certificateholder"
has the
meaning specified in Section 2.7(c).
"Lien"
means
any mortgage, pledge, lien, charge, claim, disposition of title, encumbrance,
lease, sublease, sub-sublease or security interest of any kind, including,
without limitation, any thereof arising under any conditional sales or other
title retention agreement.
"Liquidity
Event of Default"
with
respect to any Liquidity Facility, has the meaning assigned to such term in
such
Liquidity Facility.
"Liquidity
Expenses"
means,
with respect to the Liquidity Facilities, all Liquidity Obligations other than
(i) the principal amount of any Drawings under the Liquidity Facilities and
(ii)
any interest accrued on any Liquidity Obligations.
"Liquidity
Facility"
means,
at any time, the Class A Liquidity Facility or the Class B Liquidity
Facility, as applicable.
"Liquidity
Obligations"
means,
with respect to the Liquidity Facilities, all principal, interest, fees and
other amounts owing to the Liquidity Providers under the Liquidity Facilities,
Section 8.1 of the Participation Agreements or the Fee Letters.
"Liquidity
Provider"
means,
at any time, the Class A Liquidity Provider or the Class B Liquidity Provider,
as applicable.
"Loan
Trustee"
means,
with respect to any Indenture, the mortgagee thereunder.
"Minimum
Sale Price"
means,
with respect to any Aircraft or the Equipment Notes issued in respect of such
Aircraft, at any time, the lesser of (1) in the case of the sale
of an Aircraft,
75%, or in the case of the sale of related Equipment Notes, 85%, of
the Appraised Current Market Value of such Aircraft and (2) the sum of the
aggregate Note Target Price of such Equipment Notes and an amount equal to
the
Excess Liquidity Obligations in respect of the Indenture under which such
Equipment Notes were issued.
"Moody's"
means
Moody's Investors Service, Inc.
"New
Aircraft"
has the
meaning set forth in the Note Purchase Agreement.
"Non-Controlling
Party"
means,
at any time, any Trustee or Liquidity Provider which is not the Controlling
Party at such time.
"Non-Extended
Facility"
has the
meaning specified in Section 3.5(d).
"Non-Extension
Drawing"
has the
meaning specified in Section 3.5(d).
"Non-Performing
Equipment Note"
means
an Equipment Note issued pursuant to an Indenture that is not a Performing
Equipment Note.
"Note
Purchase Agreement"
means
the Note Purchase Agreement, dated as of the date hereof, among Continental,
each Trustee, the Escrow Agent, the Subordination Agent and the Paying Agent,
as
amended, supplemented or otherwise modified from time to time in accordance
with
its terms.
"Note
Target Price"
means,
for any Equipment Note issued under any Indenture, (i) the aggregate outstanding
principal amount of such Equipment Note, plus (ii) the accrued and unpaid
interest thereon, together with all other sums owing on or in respect of such
Equipment Note under such Indenture (including, without limitation, enforcement
costs incurred by the Subordination Agent in respect of such Equipment
Note).
"Officer's
Certificate"
of any
Person means a certification signed by a Responsible Officer of such
Person.
"Operative
Agreements"
means
this Agreement, the Liquidity Facilities, the Guarantee Agreement, the
Indentures, the Trust Agreements, the Underwriting Agreement, the Financing
Agreements, the Fee Letters, the Equipment Notes and the Certificates, together
with all exhibits and schedules included with any of the foregoing.
"Outstanding"
means,
when used with respect to each Class of Certificates, as of the date of
determination, all Certificates of such Class theretofore authenticated and
delivered under the related Trust Agreement, except:
(i) Certificates
of such Class theretofore canceled by the Registrar (as defined in such Trust
Agreement) or delivered to the Trustee thereunder or such Registrar for
cancellation;
(ii) Certificates
of such Class for which money in the full amount required to make the final
distribution with respect to such Certificates pursuant to Section 11.01 of
such
Trust Agreement has been theretofore deposited with the related Trustee in
trust
for the holders of such Certificates as provided in Section 4.01 of such Trust
Agreement pending distribution of such money to such Certificateholders pursuant
to such final distribution payment; and
(iii) Certificates
of such Class in exchange for or in lieu of which other Certificates have been
authenticated and delivered pursuant to such Trust Agreement;
provided,
however,
that in
determining whether the holders of the requisite Outstanding amount of such
Certificates have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, any Certificates owned by Continental or any of
its
Affiliates shall be disregarded and deemed not to be Outstanding, except that,
in determining whether such Trustee shall be protected in relying upon any
such
request, demand, authorization, direction, notice, consent or waiver, only
Certificates that such Trustee knows to be so owned shall be so disregarded.
Certificates so owned that have been pledged in good faith may be regarded
as
Outstanding if the pledgee establishes to the satisfaction of the applicable
Trustee the pledgee's right so to act with respect to such Certificates and
that
the pledgee is not Continental or any of its Affiliates.
"Overdue
Scheduled Payment"
means
any Scheduled Payment which is not in fact received by the Subordination Agent
within five days after the Scheduled Payment Date relating thereto.
"Participation
Agreement"
means,
with respect to each Indenture, the "Participation Agreement" referred to
therein.
"Payee"
has the
meaning specified in Section 2.4(e).
"Paying
Agent"
means
Wilmington Trust Company, as paying agent under each Escrow and Paying Agent
Agreement, together with its successors in such capacity.
"Paying
Agent Account"
has the
meaning assigned to such term in the Escrow and Paying Agent
Agreements.
"Performing
Equipment Note"
means
an Equipment Note with respect to which no payment default has occurred and
is
continuing (without giving effect to any Acceleration); provided
that in
the event of a bankruptcy proceeding under the Bankruptcy Code in which
Continental is a debtor any payment default existing during the 60-Day Period
(or such longer period as may apply under Section 1110(b) of the Bankruptcy
Code
or as may apply for the cure of such payment default under Section 1110(a)(2)(B)
of the Bankruptcy Code) shall not be taken into consideration until the
expiration of the applicable period.
"Performing
Note Deficiency"
means
any time that less than 65% of the then aggregate outstanding principal amount
of all Equipment Notes (other than any Additional Equipment Notes issued under
any Indenture) are Performing Equipment Notes.
"Person"
means
any individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, trustee, unincorporated
organization or government or any agency or political subdivision
thereof.
"Pool
Balance"
means,
with respect to each Trust or the Certificates issued by any Trust, as of any
date, (i) the original aggregate face amount of the Certificates of such Trust
less
(ii) the
aggregate amount of all payments made as of such date in respect of the
Certificates of such Trust or in respect of Deposits relating to such Trust
other than payments made in respect of interest or Premium thereon or
reimbursement of any costs and expenses in connection therewith. The Pool
Balance for each Trust or for the Certificates issued by any Trust as of any
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 held in such Trust and the
distribution thereof to be made on that date.
"Post-Default
Appraisal"
has the
meaning specified in Section 4.1(a)(iv).
"Preferred
B Pool Balance" means,
as
of any date, the excess of (A) the Pool Balance of the Class B
Certificates as of the immediately preceding Distribution Date (or, if such
date
is on or before the first Distribution Date, the original aggregate face amount
of the Class B Certificates) (after giving effect to distributions made on
such date) over (B) the sum of (i) the outstanding principal amount of each
Series B Equipment Note that remains unpaid as of such date subsequent to the
disposition of the Collateral under the Indenture pursuant to which such Series
B Equipment Note was issued and after giving effect to any distributions of
the
proceeds of such disposition applied under such Indenture to the payment of
each
such Series B Equipment Note, (ii) the outstanding principal amount of each
Series B Equipment Note that remains unpaid as of such date subsequent to the
scheduled date of mandatory redemption of such Series B Equipment Note following
an Event of Loss (as defined in such Indenture) with respect to the Aircraft
which secured such Series B Equipment Note and after giving effect to the
distributions of any proceeds in respect of such Event of Loss applied under
such Indenture to the payment of each such Series B Equipment Note,
(iii) the excess, if any, of (x) the outstanding amount of principal
and interest as of the date of sale of each Series B Equipment Note previously
sold over (y) the purchase price received with respect to the sale of such
Series B Equipment Note (net of any applicable costs and expenses of sale)
and
(iv) the outstanding principal amount of any Series B Equipment Note with
respect to which a Deemed Disposition Event has occurred; provided,
however,
that if
more than one of the clauses (i), (ii), (iii) and (iv) is applicable to any
one
Series B Equipment Note, only the amount determined pursuant to the clause
that
first became applicable shall be counted with respect to such Series B Equipment
Note.
"Preferred
C Pool Balance" means,
as
of any date, the excess of (A) the Pool Balance of the Class C
Certificates as of the immediately preceding Distribution Date (or, if such
date
is on or before the first Distribution Date, the original aggregate face amount
of the Class C Certificates) (after giving effect to distributions made on
such date) over (B) the sum of (i) the outstanding principal amount of each
Series C Equipment Note that remains unpaid as of such date subsequent to the
disposition of the Collateral under the Indenture pursuant to which such Series
C Equipment Note was issued and after giving effect to any distributions of
the
proceeds of such disposition applied under such Indenture to the payment of
each
such Series C
Equipment
Note, (ii) the outstanding principal amount of each Series C Equipment Note
that remains unpaid as of such date subsequent to the scheduled date of
mandatory redemption of such Series C Equipment Note following an Event of
Loss
(as defined in such Indenture) with respect to the Aircraft which secured such
Series C Equipment Note and after giving effect to the distributions of any
proceeds in respect of such Event of Loss applied under such Indenture to the
payment of each such Series C Equipment Note, (iii) the excess, if
any, of (x) the outstanding amount of principal and interest as of the date
of sale of each Series C Equipment Note previously sold over (y) the
purchase price received with respect to the sale of such Series C Equipment
Note
(net of any applicable costs and expenses of sale) and (iv) the outstanding
principal amount of any Series C Equipment Note with respect to which a Deemed
Disposition Event has occurred; provided,
however,
that if
more than one of the clauses (i), (ii), (iii) and (iv) is applicable to any
one
Series C Equipment Note, only the amount determined pursuant to the clause
that
first became applicable shall be counted with respect to such Series C Equipment
Note.
"Premium"
means
any "Make-Whole Amount" as such term is defined in any Indenture.
"Proceeding"
means
any suit in equity, action at law or other judicial or administrative
proceeding.
"Provider
Incumbency Certificate"
has the
meaning specified in Section 2.5(c).
"Provider
Representatives"
has the
meaning specified in Section 2.5(c).
"PTC
Event of Default"
means,
with respect to each Trust Agreement, the failure to pay within 10 Business
Days
of the due date thereof: (i) the outstanding Pool Balance of the applicable
Class of Certificates on the Final Legal Distribution Date for such Class or
(ii) interest due on such Certificates on any Distribution Date (unless, in
the
case of the Class A Trust Agreement or the Class B Trust Agreement, the
Subordination Agent shall have made an Interest Drawing or a withdrawal from
the
Cash Collateral Account relating to a Liquidity Facility for such Class, with
respect thereto in an aggregate amount sufficient to pay such interest and
shall
have distributed such amount to the Trustee entitled thereto).
"Rating
Agencies"
means,
collectively, at any time, each nationally recognized rating agency which shall
have been requested to rate the Certificates and which shall then be rating
the
Certificates. The initial Rating Agencies will be Moody's and Standard &
Poor's.
"Ratings
Confirmation"
means,
with respect to any action proposed to be taken, a written confirmation from
each of the Rating Agencies that such action would not result in (i) a reduction
of the rating for any Class of Certificates below the then current rating for
such Class of Certificates or (ii) a withdrawal or suspension of the rating
of
any Class of Certificates.
"Refinancing
Certificateholders"
has the
meaning specified in Section 9.1(c).
"Refinancing
Certificates"
has the
meaning specified in Section 9.1(c).
"Refinancing
Equipment Notes"
has the
meaning specified in Section 9.1(c).
"Refinancing
Trust Agreement"
has the
meaning specified in Section 9.1(c).
"Refinancing
Trust"
has the
meaning specified in Section 9.1(c).
"Refinancing
Trustee"
has the
meaning specified in Section 9.1(c).
"Regular
Distribution Dates"
means
each April 19 and October 19, commencing on October 19, 2007; provided,
however,
that,
if any such day shall not be a Business Day, the related distribution shall
be
made on the next succeeding Business Day without additional
interest.
"Replacement
Liquidity Facility"
means,
for any Liquidity Facility, an irrevocable revolving credit agreement (or
agreements) in substantially the form of the replaced Liquidity Facility,
including reinstatement provisions, or in such other form (which may include
a
letter of credit) as shall permit the Rating Agencies to confirm in writing
their respective ratings then in effect for the related Certificates (before
downgrading of such ratings, if any, as a result of the downgrading of the
applicable Liquidity Provider), in a face amount (or in an aggregate face
amount) equal to the then Required Amount and issued by a Person (or Persons)
having unsecured short-term debt rating or issuer credit rating, as the case
may
be, issued by both Rating Agencies which are equal to or higher than the
Threshold Rating. Without limitation of the form that a Replacement Liquidity
Facility otherwise may have pursuant to the preceding sentence, a Replacement
Liquidity Facility for any Class of Certificates may have a stated expiration
date earlier than 15 days after the Final Legal Distribution Date of such Class
of Certificates so long as such Replacement Liquidity Facility provides for
a
Non-Extension Drawing as contemplated by Section 3.5(d) hereof.
"Replacement
Liquidity Provider"
means a
Person (or Persons) who issues a Replacement Liquidity Facility.
"Required
Amount"
means
with respect to each Liquidity Facility or Cash Collateral Account, for any
day,
the sum of the aggregate amount of interest, calculated at the rate per annum
equal to the Stated Interest Rate for the related Class of Certificates, that
would be payable on such Class of Certificates on each of the three successive
Regular Distribution Dates immediately following such day or, if such day is
a
Regular Distribution Date, on such day and the succeeding two Regular
Distribution Dates, in each case calculated on the basis of the Pool Balance
of
such Class of Certificates on such date and without regard to expected future
payments of principal on such Class of Certificates.
"Responsible
Officer"
means
(i) with respect to the Subordination Agent and each of the Trustees, any
officer in the corporate trust administration department of the Subordination
Agent or such Trustee or any other officer customarily performing functions
similar to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with a particular subject and (ii)
with respect to each Liquidity Provider, any authorized officer of such
Liquidity Provider.
"RZB"
has the
meaning assigned to such term in the recital of parties to this
Agreement.
"Scheduled
Payment"
means,
with respect to any Equipment Note, (i) any payment of principal or interest
on
such Equipment Note (other than an Overdue Scheduled Payment) due from the
obligor thereon, which payment represents the installment of principal at the
stated maturity of such installment of principal on such Equipment Note, the
payment of regularly scheduled interest accrued on the unpaid principal amount
of such Equipment Note, or both or (ii) any payment of interest on the
corresponding Class of Certificates with funds drawn under any Liquidity
Facility or withdrawn from any Cash Collateral Account, which payment represents
the payment of regularly scheduled interest accrued on the unpaid principal
amount of the related Equipment Note; provided
that any
payment of principal of, Premium, if any, or interest resulting from the
redemption or purchase of any Equipment Note shall not constitute a Scheduled
Payment.
"Scheduled
Payment Date"
means,
with respect to any Scheduled Payment, the date on which such Scheduled Payment
is scheduled to be made.
"Section
2.4 Fraction"
means,
with respect to any Special Distribution Date, a fraction, the numerator of
which shall be the amount of principal of the applicable Series A Equipment
Notes and Series B Equipment Notes being redeemed, purchased or prepaid on
such
Special Distribution Date, and the denominator of which shall be the aggregate
unpaid principal amount of all Series A Equipment Notes and Series B Equipment
Notes outstanding as of such Special Distribution Date.
"Senior
Additional Certificateholder"
has the
meaning specified in Section 2.7(c).
"Senior
Additional Equipment Notes"
has the
meaning specified in Section 2.7(c).
"Series
A Equipment Notes"
means
the Series A Equipment Notes issued pursuant to any Indenture by Continental
and
authenticated by the Loan Trustee thereunder, and any such Equipment Notes
issued in exchange therefor or replacement thereof pursuant to the terms of
such
Indenture.
"Series
B Equipment Notes"
means
the Series B Equipment Notes issued pursuant to any Indenture by Continental
and
authenticated by the Loan Trustee thereunder, and any such Equipment Notes
issued in exchange therefor or replacement thereof pursuant to the terms of
such
Indenture.
"Series
C Equipment Notes"
means
the Series C Equipment Notes issued or re-issued pursuant to any Indenture
by
Continental and authenticated by the Loan Trustee thereunder, and any such
Equipment Notes issued in exchange therefor or replacement thereof pursuant
to
the terms of such Indenture.
"60-Day
Period"
means
60-day period specified in Section 1110(a)(2)(A) of the Bankruptcy
Code.
"Special
Distribution Date"
means,
with respect to any Special Payment, the date chosen by the Subordination Agent
pursuant to Section 2.4(a) for the distribution of such Special Payment in
accordance with this Agreement, whether distributed pursuant to Section 2.4
or Section 3.2 hereof.
"Special
Payment"
means
any payment (other than a Scheduled Payment) in respect of, or any proceeds
of,
any Equipment Note or Collateral.
"Special
Payments Account"
means
the Eligible Deposit Account created pursuant to Section 2.2(a)(ii) as a
sub-account to the Collection Account.
"Standard
& Poor's"
means
Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies,
Inc.
"Stated
Amount"
with
respect to any Liquidity Facility, means the Maximum Commitment (as defined
in
such Liquidity Facility) of the applicable Liquidity Provider
thereunder.
"Stated
Expiration Date"
has the
meaning specified in Section 3.5(d).
"Stated
Interest Rate"
means
(i) with respect to the Class A Certificates, 5.983% per annum, (ii) with
respect to the Class B Certificates, 6.903% per annum and (iii) with respect
to
the Class C Certificates, 7.339% per annum.
"Subordination
Agent"
has the
meaning assigned to it in the preliminary statements to this
Agreement.
"Subordination
Agent Incumbency Certificate"
has the
meaning specified in Section 2.5(a).
"Subordination
Agent Representatives"
has the
meaning specified in Section 2.5(a).
"Substitute
Aircraft"
has the
meaning set forth in the Note Purchase Agreement.
"Successor
Trusts"
means,
collectively, Continental Airlines Pass Through Trust 2007-1A-S, Continental
Airlines Pass Through Trust 2007-1B-S and Continental Airlines Pass Through
Trust 2007-1C-S.
"Tax"
and
"Taxes"
mean
any and all taxes, fees, levies, duties, tariffs, imposts, and other charges
of
any kind (together with any and all interest, penalties, loss, damage,
liability, expense, additions to tax and additional amounts or costs incurred
or
imposed with respect thereto) imposed or otherwise assessed by the United States
of America or by any state, local or foreign government (or any subdivision
or
agency thereof) or other taxing authority, including, without limitation: taxes
or other charges on or with respect to income, franchises, windfall or other
profits, gross receipts, property, sales, use, capital stock, payroll,
employment, social security, workers' compensation, unemployment compensation,
or net worth and similar charges; taxes or other charges in the nature of
excise, withholding, ad valorem, stamp, transfer, value added, taxes on goods
and services, gains taxes, license, registration and documentation fees, customs
duties, tariffs, and similar charges.
"Termination
Notice"
with
respect to any Liquidity Facility has the meaning assigned to such term in
such
Liquidity Facility.
"Threshold
Rating"
means
the short-term unsecured debt rating of P-1 by Moody's and the short-term issuer
credit rating of A-1 by Standard & Poor's; provided that so long as RZB is
the Liquidity Provider for any Liquidity Facility, the Threshold Rating shall
apply to the Guarantor in the case of such Liquidity Facility.
"Transfer"
means,
with respect to any particular Trust, the transfers contemplated by the
Assignment and Assumption Agreement with respect to such Trust.
"Treasury
Regulations"
means
regulations, including proposed or temporary regulations, promulgated under
the
Code. References herein to specific provisions of proposed or temporary
regulations shall include analogous provisions of final Treasury Regulations
or
other successor Treasury Regulations.
"Triggering
Event"
means
(x) the occurrence of an Indenture Default under all of the Indentures resulting
in a PTC Event of Default with respect to the most senior Class of Certificates
then Outstanding, (y) the Acceleration of all of the outstanding Equipment
Notes
(provided
that,
with respect to the period prior to the Delivery Period Expiry Date, the
aggregate principal balance of such Equipment Notes is in excess of
$450,000,000) or (z) the occurrence of a Continental Bankruptcy
Event.
"Trust"
means
any of the Class A Trust, the Class B Trust or the Class C Trust.
"Trust
Accounts"
has the
meaning specified in Section 2.2(a).
"Trust
Agreement"
means
any of the Class A Trust Agreement, the Class B Trust Agreement or the Class
C
Trust Agreement.
"Trust
Property"
with
respect to any Trust, has the meaning set forth in the Trust Agreement for
such
Trust.
"Trustee"
means
any of the Class A Trustee, the Class B Trustee or the Class C
Trustee.
"Trustee
Incumbency Certificate"
has the
meaning specified in Section 2.5(b).
"Trustee
Representatives"
has the
meaning specified in Section 2.5(b).
"Underwriters"
means
Morgan Stanley & Co. Incorporated, Credit Suisse Securities (USA) LLC,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets
Inc., UBS Securities LLC, Calyon Securities (USA) Inc. and J.P. Morgan
Securities Inc.
"Underwriting
Agreement"
means
the Underwriting Agreement dated March 27, 2007 among the Underwriters, the
Depositary and Continental, relating to the purchase of the Certificates by
the
Underwriters, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with its terms.
"Withdrawal
Notice"
has the
meaning specified in Section 3.5(d).
"Written
Notice"
means,
from the Subordination Agent, any Trustee or any Liquidity Provider, a written
instrument executed by the Designated Representative of such Person. An invoice
delivered by a Liquidity Provider pursuant to Section 3.1 in accordance with
its
normal invoicing procedures shall constitute Written Notice under such
Section.
"WTC"
has the
meaning assigned to such term in the recital of parties to this
Agreement.
TRUST
ACCOUNTS; CONTROLLING PARTY
SECTION
2.1. Agreement
to Terms of Subordination; Payments from Monies Received Only.
(a) Each
Trustee hereby acknowledges and agrees to the terms of subordination and
distribution set forth in this Agreement in respect of each Class of
Certificates and agrees to enforce such provisions and cause all payments in
respect of the Equipment Notes held by the Subordination Agent and the Liquidity
Facilities to be applied in accordance with the terms of this Agreement. In
addition, each Trustee hereby agrees to cause the Equipment Notes purchased
by
the related Trust to be registered in the name of the Subordination Agent or
its
nominee, as agent and trustee for such Trustee, to be held in trust by the
Subordination Agent solely for the purpose of facilitating the enforcement
of
the subordination and other provisions of this Agreement.
(b) Except
as
otherwise expressly provided in the next succeeding sentence of this Section
2.1, all payments to be made by the Subordination Agent hereunder shall be
made
only from amounts received by it that constitute Scheduled Payments, Special
Payments, payments under Section 8.1 of the Participation Agreements or payments
under Section 6 of the Note Purchase Agreement, and only to the extent that
the
Subordination Agent shall have received sufficient income or proceeds therefrom
to enable it to make such payments in accordance with the terms hereof. Each
of
the Trustees and the Subordination Agent hereby agrees and, as provided in
each
Trust Agreement, each Certificateholder, by its acceptance of a Certificate
and
each Liquidity Provider, by entering into the Liquidity Facility to which it
is
a party, has agreed to look solely to such amounts to the extent available
for
distribution to it as provided in this Agreement and to the relevant Deposits
and that none of the Trustees, Loan Trustees nor the Subordination Agent is
personally liable to any of them for any amounts payable or any liability under
this Agreement, any Trust Agreement, any Liquidity Facility or such Certificate,
except (in the case of the Subordination Agent) as expressly provided herein
or
(in the case of the Trustees) as expressly provided in each Trust Agreement
or
(in the case of the Loan Trustees) as expressly provided in any Operative
Agreement.
SECTION
2.2. Trust
Accounts.
(a) Upon
the execution of this Agreement, the Subordination Agent shall establish and
maintain in its name (i) the Collection Account as an Eligible Deposit Account,
bearing a designation clearly indicating that the funds deposited therein are
held in trust for the benefit of the Trustees, the Certificateholders and the
Liquidity Providers and (ii) as a sub-account in the Collection Account,
the Special Payments Account as an Eligible Deposit Account, bearing a
designation clearly indicating that the funds deposited
therein
are held in trust for the benefit of the Trustees, the Certificateholders and
the Liquidity Providers. The Subordination Agent shall establish and maintain
the Cash Collateral Accounts pursuant to and under the circumstances set forth
in Section 3.5(f) hereof. Upon such establishment and maintenance under Section
3.5(f) hereof, the Cash Collateral Accounts shall, together with the Collection
Account, constitute the "Trust
Accounts"
hereunder. Without limiting the foregoing, all monies credited to the Trust
Accounts shall be, and shall remain, the property of the relevant
Trust(s).
(b) Funds
on
deposit in the Trust Accounts shall be invested and reinvested by the
Subordination Agent in Eligible Investments selected by the Subordination Agent
if such investments are reasonably available and have maturities no later than
the earlier of (i) 90 days following the date of such investment and (ii) the
Business Day immediately preceding the Regular Distribution Date or the date
of
the related distribution pursuant to Section 2.4 hereof, as the case may be,
next following the date of such investment; provided,
however,
that
following the making of a Downgrade Drawing or a Non-Extension Drawing under
any
Liquidity Facility, the Subordination Agent shall invest and reinvest such
amounts in Eligible Investments at the direction of Continental (or, if and
to
the extent so specified to the Subordination Agent by Continental with respect
to any Liquidity Facility, the Liquidity Provider with respect to such Liquidity
Facility); provided further,
however,
that,
notwithstanding the foregoing proviso, following the making of an a
Non-Extension Drawing under any initial Liquidity Facility, the Subordination
Agent shall invest and reinvest the amounts in the Cash Collateral Account
with
respect to such Liquidity Facility in Eligible Investments pursuant to the
written instructions of the Liquidity Provider funding such Drawing;
provided further,
however,
that
upon the occurrence and during the continuation of a Triggering Event, the
Subordination Agent shall invest and reinvest such amounts in accordance with
the written instructions of the Controlling Party. Unless otherwise expressly
provided in this Agreement (including, without limitation, with respect to
Investment Earnings on amounts on deposit in the Cash Collateral Accounts
pursuant to Section 3.5(f) hereof), any Investment Earnings shall be deposited
in the Collection Account when received by the Subordination Agent and shall
be
applied by the Subordination Agent in the same manner as the other amounts
on
deposit in the Collection Account are to be applied and any losses shall be
charged against the principal amount invested, in each case net of the
Subordination Agent's reasonable fees and expenses in making such investments.
The Subordination Agent shall not be liable for any loss resulting from any
investment, reinvestment or liquidation required to be made under this Agreement
other than by reason of its willful misconduct or gross negligence. Eligible
Investments and any other investment required to be made hereunder shall be
held
to their maturities except that any such investment may be sold (without regard
to its maturity) by the Subordination Agent without instructions whenever such
sale is necessary to make a distribution required under this Agreement.
Uninvested funds held hereunder shall not earn or accrue interest.
(c) The
Subordination Agent shall possess all right, title and interest in all funds
on
deposit from time to time in the Trust Accounts and in all proceeds thereof
(including all income thereon, except as otherwise expressly provided in Section
3.3(b) with respect to Investment Earnings). The Trust Accounts shall be held
in
trust by the Subordination Agent under the sole dominion and control of the
Subordination Agent for the benefit of the Trustees, the Certificateholders
and
the Liquidity Providers, as the case may be. If, at any time, any of the Trust
Accounts ceases to be an Eligible Deposit Account, the Subordination Agent
shall
within
10
Business Days (or such longer period, not to exceed 30 calendar days, for which
a Ratings Confirmation for each Class of Certificates shall have been obtained)
establish a new Collection Account, Special Payments Account or Cash Collateral
Account, as the case may be, as an Eligible Deposit Account and shall transfer
any cash and/or any investments to such new Collection Account, Special Payments
Account or Cash Collateral Account, as the case may be. So long as WTC is an
Eligible Institution, the Trust Accounts shall be maintained with it as Eligible
Deposit Accounts.
SECTION
2.3. Deposits
to the Collection Account and Special Payments Account.
(a) The
Subordination Agent shall, upon receipt thereof, deposit in the Collection
Account all Scheduled Payments received by it (other than any Scheduled Payment
which by the express terms hereof is to be deposited to a Cash Collateral
Account).
(b) The
Subordination Agent shall, on each date when one or more Special Payments are
made to the Subordination Agent as holder of the Equipment Notes, deposit in
the
Special Payments Account the aggregate amount of such Special
Payments.
SECTION
2.4. Distributions
of Special Payments.
(a)
Notice
of Special Payment.
Except
as provided in Section 2.4(c) below, upon receipt by the Subordination Agent,
as
registered holder of the Equipment Notes, of any notice of a Special Payment
(or, in the absence of any such notice, upon receipt by the Subordination Agent
of a Special Payment), the Subordination Agent shall promptly give notice
thereof to each Trustee and the Liquidity Providers. The Subordination Agent
shall promptly calculate the amount of the redemption or purchase of Equipment
Notes, the amount of any Overdue Scheduled Payment or the proceeds of Equipment
Notes or Collateral, as the case may be, comprising such Special Payment under
the applicable Indenture or Indentures and shall promptly send to each Trustee
a
Written Notice of such amount and the amount allocable to each Trust. Such
Written Notice shall also set the distribution date for such Special Payment
(a
"Special
Distribution Date"),
which
shall be the Business Day which immediately follows the later to occur of (x)
the 15th day after the date of such Written Notice or (y) the date the
Subordination Agent has received or expects to receive such Special Payment.
Amounts on deposit in the Special Payments Account shall be distributed in
accordance with Sections 2.4(b) and 2.4(c) and Article III hereof, as
applicable.
For
the
purposes of the application of any Equipment Note Special Payment distributed
on
a Special Distribution Date in accordance with Section 3.2 hereof, so long
as no
Indenture Default shall have occurred and be continuing under any Indenture:
(i) the
amount of accrued and unpaid Liquidity Expenses that are not yet due that are
payable pursuant to clause "second" thereof shall be multiplied by the Section
2.4 Fraction;
(ii) clause
"third" thereof shall be deemed to read as follows: "third,
such
amount as shall be required to pay accrued and unpaid interest then in arrears
on all Liquidity Obligations (at the rate, or in the amount, provided in the
applicable Liquidity Facility) plus an amount equal to the amount of accrued
and
unpaid interest on the Liquidity Obligations not in arrears multiplied by the
Section 2.4 Fraction, shall be distributed to the Liquidity Providers, pro
rata
on the basis of the amounts owed to each Liquidity Provider";
(iii) clause
"seventh" thereof shall be deemed to read as follows: "seventh,
such
amount as shall be required to pay accrued, due and unpaid interest at the
Stated Interest Rate on the outstanding Pool Balance of the Class A Certificates
together with (without duplication) accrued and unpaid interest at the Stated
Interest Rate on the outstanding principal amount of the Series A Equipment
Notes held in the Class A Trust being redeemed, purchased or prepaid, in each
case excluding interest, if any, payable with respect to the Deposits relating
to the Class A Trust";
(iv) clause
"eighth" thereof shall be deemed to read as follows: "eighth,
such
amount as shall be required to pay any accrued, due and unpaid Class B Adjusted
Interest to the holders of the Class B Certificates (excluding interest, if
any,
payable with respect to the Deposits relating to the Class B
Trust)";
(v) clause
"ninth" thereof shall be deemed to read as follows: "ninth,
such
amount as shall be required to pay any accrued, due and unpaid Class C Adjusted
Interest to the holders of the Class C Certificates (excluding interest, if
any,
payable with respect to the Deposits relating to the Class C
Trust)";
(vi) clause
"eleventh" thereof shall be deemed to read as follows: "eleventh,
such
amount as shall be required to pay in full accrued, due and unpaid interest
at
the Stated Interest Rate on the outstanding Pool Balance of the Class B
Certificates which was not previously paid pursuant to clause "eighth" above
to
the holders of the Class B Certificates together with (without duplication)
accrued and unpaid interest at the Stated Interest Rate on the outstanding
principal amount of the Series B Equipment Notes held in the Class B Trust
and
being redeemed, purchased or prepaid, in each case excluding interest, if any,
payable with respect to the Deposits relating to the Class B Trust;"
and
(vii) clause
"thirteenth" thereof shall be deemed to read as follows: "thirteenth,
such
amount as shall be required to pay in full accrued, due and unpaid interest
at
the Stated Interest Rate on the outstanding Pool Balance of the Class C
Certificates which was not previously paid pursuant to clause "ninth" above
to
the holders of the Class C Certificates together with (without duplication)
accrued and unpaid interest at the Stated Interest Rate on the outstanding
principal amount of the Series C Equipment Notes held in the Class C Trust
and
being redeemed, purchased or prepaid, in each case excluding interest, if any,
payable with respect to the Deposits relating to the Class C
Trust;".
(b) Investment
of Amounts in Special Payments Account.
Any
amounts on deposit in the Special Payments Account prior to the distribution
thereof pursuant to Section 2.4 or 3.2 shall be invested in accordance with
Section 2.2(b). Investment Earnings on such investments shall be distributed
in
accordance with Article III hereof.
(c) Certain
Payments.
Except
for amounts constituting Liquidity Obligations which shall be distributed as
provided in Section 3.2, the Subordination Agent will distribute promptly upon
receipt thereof (i) any indemnity payment or expense reimbursement received
by
it from Continental in respect of any Trustee, any Liquidity Provider, the
Guarantor, any Paying Agent, any Depositary or any Escrow Agent (collectively,
the "Payees")
and
(ii) any
compensation
received by it from Continental under any Operative Agreement in respect of
any
Payee, directly to the Payee entitled thereto.
SECTION
2.5. Designated
Representatives.
(a) With
the delivery of this Agreement, the Subordination Agent shall furnish to each
Liquidity Provider and each Trustee, and from time to time thereafter may
furnish to each Liquidity Provider and each Trustee, at the Subordination
Agent's discretion, or upon any Liquidity Provider's or any Trustee's request
(which request shall not be made more than one time in any 12-month period),
a
certificate (a "Subordination
Agent Incumbency Certificate")
of a
Responsible Officer of the Subordination Agent certifying as to the incumbency
and specimen signatures of the officers of the Subordination Agent and the
attorney-in-fact and agents of the Subordination Agent (the "Subordination
Agent Representatives")
authorized to give Written Notices on behalf of the Subordination Agent
hereunder. Until each Liquidity Provider and each Trustee receives a subsequent
Subordination Agent Incumbency Certificate, it shall be entitled to rely on
the
last Subordination Agent Incumbency Certificate delivered to it
hereunder.
(b) With
the
delivery of this Agreement, each Trustee shall furnish to the Subordination
Agent, and from time to time thereafter may furnish to the Subordination Agent,
at such Trustee's discretion, or upon the Subordination Agent's request (which
request shall not be made more than one time in any 12-month period), a
certificate (a "Trustee
Incumbency Certificate")
of a
Responsible Officer of such Trustee certifying as to the incumbency and specimen
signatures of the officers of such Trustee and the attorney-in-fact and agents
of such Trustee (the "Trustee
Representatives")
authorized to give Written Notices on behalf of such Trustee hereunder. Until
the Subordination Agent receives a subsequent Trustee Incumbency Certificate,
it
shall be entitled to rely on the last Trustee Incumbency Certificate delivered
to it hereunder.
(c) With
the
delivery of this Agreement, each Liquidity Provider shall furnish to the
Subordination Agent, and from time to time thereafter may furnish to the
Subordination Agent, at such Liquidity Provider's discretion, or upon the
Subordination Agent's request (which request shall not be made more than one
time in any 12-month period), a certificate (each, a "Provider
Incumbency Certificate")
of any
Responsible Officer of such Liquidity Provider certifying as to the incumbency
and specimen signatures of any officer, attorney-in-fact, agent or other
designated representative of such Liquidity Provider (in each case, the
"Provider
Representatives"
and,
together with the Subordination Agent Representatives and the Trustee
Representatives, the "Designated
Representatives")
authorized to give Written Notices on behalf of such Liquidity Provider
hereunder. Until the Subordination Agent receives a subsequent Provider
Incumbency Certificate, it shall be entitled to rely on the last Provider
Incumbency Certificate delivered to it hereunder by the relevant Liquidity
Provider.
SECTION
2.6. Controlling
Party.
(a) The Trustees and the Liquidity Providers hereby agree that, with
respect to any Indenture at any given time, the Loan Trustee thereunder will
be
directed in taking, or refraining from taking, any action under such Indenture
or with respect to the Equipment Notes issued thereunder (i) so long as no
Indenture Default has occurred and is continuing thereunder, by the holders
of
at least a majority of the outstanding principal amount of such Equipment Notes
(provided that, for so long as the Subordination Agent is the registered holder
of the Equipment Notes, the Subordination Agent shall act with
respect
to this clause (i) in accordance with the directions of the Trustees (in the
case of each such Trustee, with respect to the Equipment Notes issued under
such
Indenture and held as Trust Property of such Trust) constituting, in the
aggregate, directions with respect to at least a majority of outstanding
principal amount of Equipment Notes except as provided in Section 9.1(b)),
and
(ii) after the occurrence and during the continuance of an Indenture Default
thereunder, in taking, or refraining from taking, any action under such
Indenture or with respect to such Equipment Notes, including exercising remedies
thereunder (including Accelerating the Equipment Notes issued thereunder or
foreclosing the Lien on the Aircraft securing such Equipment Notes), by the
Controlling Party (except as otherwise provided in Section 2.6(d)).
Notwithstanding the foregoing, in taking any action or giving any direction
to
the applicable Loan Trustee pursuant to Section 4.08 of any Indenture, the
Subordination Agent shall be directed by the Controlling Party, notwithstanding
that no Indenture Default under such Indenture shall have occurred and be
continuing.
(b) The
"Controlling Party" shall be (x) the Class A Trustee, (y) upon payment of Final
Distributions to the holders of Class A Certificates, the Class B Trustee
and (z) upon payment of Final Distributions to the holders of the Class B
Certificates, the Class C Trustee. For purposes of giving effect to the
provisions of Section 2.6(a) and this Section 2.6(b), the Trustees (other
than the Controlling Party) irrevocably agree (and the Certificateholders (other
than the Certificateholders represented by the Controlling Party) shall be
deemed to agree by virtue of their purchase of Certificates) that the
Subordination Agent, as record holder of the Equipment Notes, shall exercise
its
voting rights in respect of the Equipment Notes so held by the Subordination
Agent as directed by the Controlling Party and any vote so exercised shall
be
binding upon the Trustees and all Certificateholders.
The
Subordination Agent shall give Written Notice to all of the other parties to
this Agreement promptly upon a change in the identity of the Controlling Party.
Each of the parties hereto agrees that it shall not exercise any of the rights
of the Controlling Party at such time as it is not the Controlling Party
hereunder; provided,
however,
that
nothing herein contained shall prevent or prohibit any Non-Controlling Party
from exercising such rights as shall be specifically granted to such
Non-Controlling Party hereunder and under the other Operative
Agreements.
(c) Notwithstanding
the foregoing provisions of clauses (a) and (b) above, at any time after 18
months from the earliest to occur of (i) the date on which the entire Required
Amount as of such date under any Liquidity Facility shall have been drawn
(excluding a Downgrade Drawing or a Non-Extension Drawing but including a Final
Drawing or a Downgrade Drawing or a Non-Extension Drawing that has been
converted to a Final Drawing under such Liquidity Facility) and remain
unreimbursed, (ii) the date on which the portion of any Downgrade Drawing or
Non-Extension Drawing equal to the Required Amount as of such date under any
Liquidity Facility shall have become and remain "Applied Downgrade Advances"
or
"Applied Non-Extension Advances", as the case may be, under and as defined
in
such Liquidity Facility and (iii) the date on which all Equipment Notes under
all Indentures shall have been Accelerated (provided
that (x)
with respect to the period prior to the Delivery Period Expiry Date, such
Equipment Notes have an aggregate outstanding principal balance of in excess
of
$450,000,000, and (y) in the event of a bankruptcy proceeding under the
Bankruptcy Code in which Continental is a debtor, any amounts payable in respect
of Equipment Notes which have
become
immediately due and payable by declaration or otherwise shall not be considered
Accelerated for purposes of this sub-clause (iii) until the expiration of the
60-day period under Section 1110(a)(2)(A) of the Bankruptcy Code or such longer
period as may apply under Section 1110(a)(2)(B) or Section 1110(b) of the
Bankruptcy Code), the Liquidity Provider with the highest outstanding aggregate
amount of Liquidity Obligations owed to it (so long as such Liquidity Provider
has not defaulted in its obligation to make any Drawing under any Liquidity
Facility) shall have the right to elect, by Written Notice to the Subordination
Agent and each of the Trustees, to become the Controlling Party hereunder at
any
time from and including the last day of such 18-month period.
(d) Notwithstanding
the foregoing provisions of clauses (a) through (c) above, if any holders of
the
Class B Certificates, Class C Certificates or Additional Certificates exercise
their right under Section 2.7 hereof to purchase Equipment Notes issued under
any Indenture, the holders of the majority in aggregate unpaid principal amount
of all the Equipment Notes issued under such Indenture, instead of the
Controlling Party, shall be entitled to direct the relevant Indenture Trustee
in
taking, or refraining from taking, any action under such Indenture or with
respect to such Equipment Notes, including exercising remedies thereunder
(including Accelerating the Equipment Notes issued thereunder or foreclosing
the
Lien on the Aircraft securing such Equipment Notes) (it being understood and
agreed that any Equipment Notes that continue to be held by the Subordination
Agent shall be voted in accordance with clause (a) above).
(e) The
exercise of remedies by the Controlling Party under this Agreement shall be
expressly limited by Sections 4.1(a)(ii) and 4.1(a)(iii) hereof.
(f) The
Controlling Party shall not be entitled to require or obligate any
Non-Controlling Party to provide funds necessary to exercise any right or remedy
hereunder.
SECTION
2.7. Equipment
Note Buy-Out Rights.
(a) If an Equipment Note Buy-Out Event has occurred and is
continuing, then so long as, with respect to the Indentures referred to below
in
this clause (a), no Class C Certificateholder or Additional Certificateholder
has elected to exercise its right to purchase Equipment Notes issued under
such
Indentures pursuant to this Section 2.7, any Class B Certificateholder may,
upon
15 days’ prior written notice to the Subordination Agent, each Trustee (and each
such Trustee shall promptly provide such notice to all Certificateholders of
its
Trust) and each applicable Indenture Trustee given on or before the date which
is six months after the occurrence of the applicable Equipment Note Buy-Out
Event, purchase on the third Business Day next following the expiry of such
15-day notice period all, but not less than all, of the Series A Equipment
Notes
issued under any one or more of the Indentures for a purchase price equal to
the
sum of the aggregate Note Target Price for such Series A Equipment Notes plus
an
amount equal to the Excess Liquidity Obligations in respect of such Indentures.
If prior to the end of such 15-day period, any other holder of the Class B
Certificates notifies the Subordination Agent, each Trustee (and each such
Trustee shall promptly notify all Certificateholders of its Trust, including
the
purchasing Class B Certificateholder) and each applicable Indenture Trustee
that
it wishes to participate in such purchase, then such other Certificateholder
may
join with the purchasing Certificateholder to purchase such Series A Equipment
Notes pro rata based on the interest in the Class B Trust held
by
each
such Certificateholder compared to such interests held by all such participating
Certificateholders.
(b) If
an
Equipment Note Buy-Out Event has occurred and is continuing, then, regardless
of
whether any Class B Certificateholder has elected to exercise its right to
purchase Equipment Notes under this Section 2.7 (and so long as, with respect
to
the Indentures referred to below in this clause (b), no Additional
Certificateholder has elected to exercise its right to purchase Equipment Notes
issued under such Indentures pursuant to this Section 2.7), any Class C
Certificateholder may, upon
15 days’ prior written notice to the Subordination Agent, each Trustee (and each
such Trustee shall promptly provide such notice to all Certificateholders of
its
Trust) and each applicable Indenture Trustee given on or before the date which
is six months after the occurrence of the applicable Equipment Note Buy-Out
Event, purchase on the third Business Day next following the expiry of such
15-day notice period all, but not less than all, of the Series A Equipment
Notes
and the Series B Equipment Notes issued under any one or more Indentures for
a
purchase price equal to the sum of the aggregate Note Target Price for such
Series A Equipment Notes and Series B Equipment Notes plus an amount equal
to
Excess Liquidity Obligations in respect of such Indentures. If prior to the
end
of such 15-day period, any other holder of the Class C Certificates notifies
the
Subordination Agent, each Trustee (and each such Trustee shall promptly notify
all Certificateholders of the applicable Trust, including the purchasing Class
C
Certificateholder) and each applicable Indenture Trustee that it wishes to
participate in such purchase, then such other Certificateholder may join with
the purchasing Certificateholder to purchase such Series A Equipment Notes
and
Series B Equipment Notes pro rata based on the interest in the Class C Trust
held by each such Certificateholder compared to such interests held by all
such
participating Certificateholders.
(c) If
an
Equipment Note Buy-Out Event has occurred and is continuing, then regardless
of
whether any Class B Certificateholder or Class C Certificateholder (or, if
applicable, any Senior Additional Certificateholder (as defined below)) has
elected to exercise its right to purchase Equipment Notes under this Section
2.7
(and so long as, with respect to the Indentures referred to in this clause
(c),
no Junior Additional Certificateholder (as defined below) has elected to
exercise its right to purchase Equipment Notes issued under such Indentures
pursuant to this Section 2.7), any Additional Certificateholder may,
upon
15 days’ prior written notice to the Subordination Agent, each Trustee (and each
such Trustee shall promptly provide such notice to all Certificateholders of
the
applicable Trust) and each applicable Indenture Trustee given on or before
the
date which is six months after the occurrence of the applicable Equipment Note
Buy-Out Event, purchase on the third Business Day next following the expiry
of
such 15-day notice period all, but not less than all, of the Series A Equipment
Notes, the Series B Equipment Notes and Series C Equipment Notes (and, if
applicable, any Senior Additional Equipment Notes (as defined below)) issued
under any one or more Indentures for a purchase price equal to the sum of the
aggregate Note Target Price for such Series A Equipment Notes, Series B
Equipment Notes and Series C Equipment Notes (and, if applicable, any Senior
Additional Equipment Notes) plus an amount equal to the Excess Liquidity
Obligations in respect of such Indentures. If prior to the end of such 15-day
period, any other holder of such class of Additional Certificates notifies
the
Subordination Agent, each Trustee (and each such Trustee shall promptly notify
all Certificateholders of the applicable Trust, including the purchasing
Additional Certificateholder) and each applicable Indenture Trustee that it
wishes to participate in such purchase, then such other Certificateholder may
join with the purchasing
Certificateholder
to purchase such Series A Equipment Notes, Series B Equipment Notes and Series
C
Equipment Notes (and, if applicable, any Senior Additional Equipment Notes)
pro
rata based on the interest in the applicable Trust held by each such
Certificateholder compared to such interests held by all such participating
Certificateholders.
"Junior
Additional Certificateholder"
means, with respect to any Additional Certificateholder exercising its right
to
purchase Equipment Notes under this Section 2.7(c), any holder of any class
(or
classes) of Additional Certificates that rank junior, in priority of payment
under this Agreement, to the class of Additional Certificates held by such
Additional Certificateholder.
"Senior
Additional Certificateholder"
means, with respect to any Additional Certificateholder exercising its right
to
purchase Equipment Notes under this Section 2.7(c), any holder of any class
(or
classes) of Additional Certificates that rank senior, in priority of payment
under this Agreement, to the class of Additional Certificates held by such
Additional Certificateholder.
"Senior
Additional Equipment Notes"
means, with respect to any Additional Certificateholder exercising its right,
under this Section 2.7(c), to purchase Equipment Notes issued under any
Indenture, any series of Additional Equipment Notes that rank senior, in
priority of payment under such Indenture, to the series of Additional Equipment
Notes corresponding to the class of Additional Certificates held by such
Additional Certificateholder.
(d) On
the
date of any purchase by the Class B Certificateholders, the Class C
Certificateholders or any Additional Certificateholders, as applicable, of
Equipment Notes issued under any Indenture, the purchasing Certificateholders
shall pay to the Subordination Agent in immediately available funds the
aggregate purchase price of all of the Equipment Notes being purchased as
specified in this Section 2.7. The proceeds received by the Subordination Agent
pursuant to this clause (d) shall be promptly applied by the Subordination
Agent
in accordance with Section 3.2 hereof.
(e) From
and after the purchase of any Equipment Notes pursuant to this Section 2.7,
any proceeds or payments made with respect to such purchased Equipment Notes
shall be paid directly to the holders of such Equipment Notes in accordance
with
the related Indentures pro rata and shall not be subject to application under
Article III hereof. Any proceeds or payments made with respect to any
Equipment Notes under the related Indenture not purchased pursuant to this
Section 2.7 shall continue to be paid to the Subordination Agent and shall
be
applied in accordance with Article III hereof.
(f) Notwithstanding
the purchase of any Equipment Notes under any Indenture pursuant to this Section
2.7, the provisions of the Granting Clause, Section 2.06, Article III and
Section 11.01 and the definitions of “Related Equipment Note”, “Related
Indenture”, “Related Mortgage”, “Related Note Holder”, “Related Secured
Obligations”, “Related Series A Equipment Note”, “Related Series B Equipment
Note”, “Related Series C Equipment Note”, “Related Additional Series Equipment
Note” and “Indenture Indemnitee” (the "Cross-Collateralization
Provisions")
of such Indenture shall remain unchanged and in full force and effect, and
may
not be amended, modified or otherwise waived in any manner without
the
prior
written consent of the Subordination Agent acting on the instructions of each
Trustee. As a condition precedent to any purchase of Equipment Notes under
this
Section 2.7, each purchasing Certificateholder shall confirm in writing to
the
Subordination Agent that such purchasing Certificateholder acknowledges,
consents and agrees to the provisions of this Section 2.7(f) and shall not
take
any action in contravention thereof or otherwise amend, modify or waive the
Cross-Collateralization Provisions of such Indenture, and further acknowledges,
consents and agrees to the restrictions set forth in Sections 4.1(a)(ii) and
4.1(a)(iii) hereof.
(g) In
the event that Continental or any of its Affiliates is an owner of a Class
B
Certificate or Class C Certificate (or an Additional Certificate), it shall
not
have any right, as a Class B Certificateholder or Class C Certificateholder
(or
an Additional Certificateholder), as applicable, to purchase any Equipment
Notes
under this Section 2.7.
(h) In
connection with the purchase of Equipment Notes pursuant to this Section 2.7,
upon the payment by any Certificateholder of the applicable Excess Liquidity
Obligations and that portion of Note Target Price constituting enforcement
costs
incurred by the Subordination Agent, such Certificateholder, as the holder
of
such Equipment Notes, shall be subrogated to the right of the Subordination
Agent to receive payment of such amounts in respect of such Equipment Notes
under the applicable Indenture.
(i) The
right of any Certificateholder to purchase Equipment Notes pursuant to this
Section 2.7 shall be subject to such purchase being exempt from, or not subject
to, the registration requirements of the Securities Act of 1933, as amended,
and
in compliance with other applicable state or foreign securities laws. Each
purchaser shall be required to provide to the Subordination Agent reasonably
satisfactory evidence of compliance with such laws.
(j) Any
Taxes incurred by the applicable Loan Trustee, the Subordination Agent or the
applicable Trustee in connection with the sale of any Equipment Note pursuant
to
the exercise by one or more Certificateholders of the right to purchase
Equipment Notes pursuant to this Section 2.7 shall be paid by such purchasing
Certificateholders, on a pro rata basis.
RECEIPT,
DISTRIBUTION AND APPLICATION
OF
AMOUNTS RECEIVED
SECTION
3.1. Written
Notice of Distribution.
(a) No
later than 3:00 P.M. (New York City time) on the Business Day immediately
preceding each Distribution Date, each of the following Persons shall deliver
to
the Subordination Agent a Written Notice setting forth the following information
as at the close of business on such Business Day:
(i) With
respect to the Class A Certificates, the Class A Trustee shall separately set
forth the amounts to be paid in accordance with clause "first" (to reimburse
payments made by such Trustee or the Class A Certificateholders, as the case
may
be, pursuant to subclause (ii) or (iv) of clause "first"), subclauses (ii)
and
(iii) of clause "sixth" of Section 3.2 hereof and clauses "seventh" and
"tenth" of Section 3.2 hereof;
(ii) With
respect to the Class B Certificates, the Class B Trustee shall separately set
forth the amounts to be paid in accordance with clause "first" (to reimburse
payments made by such Trustee or the Class B Certificateholders, as the case
may
be, pursuant to subclause (ii) or (iv) of clause "first"), subclauses (ii)
and
(iii) of clause "sixth" of Section 3.2 hereof and clauses "eighth",
"eleventh" and "twelfth" of Section 3.2 hereof;
(iii) With
respect to the Class C Certificates, the Class C Trustee shall separately set
forth the amounts to be paid in accordance with clause "first" (to reimburse
payments made by such Trustee or the Class C Certificateholders, as the case
may
be, pursuant to subclause (ii) or (iii) of clause "first"), subclauses (ii)
and (iii) of clause "sixth" of Section 3.2 hereof and clauses "ninth",
"thirteenth" and "fourteenth" of Section 3.2 hereof;
(iv) With
respect to each Liquidity Facility, the Liquidity Provider thereunder shall
separately set forth the amounts to be paid to it in accordance with subclauses
(iii) and (iv) of clause "first" of Section 3.2 hereof, clause "second" of
Section 3.2 hereof, clause "third" of Section 3.2 hereof, clause "fourth" of
Section 3.2 hereof and clause "fifth" of Section 3.2 hereof; and
(v) Each
Trustee shall set forth the amounts to be paid in accordance with clause "sixth"
of Section 3.2 hereof.
(b) At
such
time as a Trustee or a Liquidity Provider shall have received all amounts owing
to it (and, in the case of a Trustee, the Certificateholders for which it is
acting) pursuant to Section 3.2 hereof, as applicable, and, in the case of
a
Liquidity Provider, its commitment or obligations under the related Liquidity
Facility shall have terminated or expired, such Person shall, by a Written
Notice, so inform the Subordination Agent and each other party to this
Agreement.
(c) As
provided in Section 6.5 hereof, the Subordination Agent shall be fully protected
in relying on any of the information set forth in a Written Notice provided
by
any Trustee, any Liquidity Provider pursuant to paragraphs (a) and (b) above
and
shall have no independent obligation to verify, calculate or recalculate any
amount set forth in any Written Notice delivered in accordance with such
paragraphs.
(d) Any
Written Notice delivered by a Trustee, a Liquidity Provider or the Subordination
Agent, as applicable, pursuant to Section 3.1(b) hereof, if made prior to 10:00
A.M. (New York City time) on any Business Day, shall be effective on the date
delivered (or if delivered later on a Business Day or if delivered on a day
which is not a Business Day shall be effective as of the next Business Day).
Subject to the terms of this Agreement, the Subordination Agent shall as
promptly as practicable comply with any such instructions; provided,
however,
that
any transfer of funds pursuant to any instruction received after 10:00 A.M.
(New York City time) on any Business Day may be made on the next succeeding
Business Day.
(e) In
the
event the Subordination Agent shall not receive from any Person any information
set forth in paragraph (a) above which is required to enable the Subordination
Agent
to
make a distribution to such Person pursuant to Section 3.2 hereof, the
Subordination Agent shall request such information and, failing to receive
any
such information, the Subordination Agent shall not make such distribution(s)
to
such Person. In such event, the Subordination Agent shall make distributions
pursuant to clauses "first" through "fourteenth" of Section 3.2 to the extent
it
shall have sufficient information to enable it to make such distributions,
and
shall continue to hold any funds remaining, after making such distributions,
until the Subordination Agent shall receive all necessary information to enable
it to distribute any funds so withheld.
(f) On
such
dates (but not more frequently than monthly) as any Liquidity Provider or any
Trustee shall request, but in any event automatically at the end of each
calendar quarter, the Subordination Agent shall send to such party a written
statement reflecting all amounts on deposit with the Subordination Agent
pursuant to Section 3.1(e) hereof.
The
notices required under this Section 3.1(a) may be in the form of a schedule
or
similar document provided to the Subordination Agent by the parties referenced
therein or by any one of them, which schedule or similar document may state
that, unless there has been a prepayment of the Certificates, such schedule
or
similar document is to remain in effect until any substitute notice or amendment
shall be given to the Subordination Agent by the party providing such
notice.
SECTION
3.2. Distribution
of Amounts on Deposit in the Collection Account.
Except
as otherwise provided in Sections 2.4, 3.1(e), 3.3, 3.5(b) and 3.5(k), amounts
on deposit in the Collection Account (including amounts on deposit in the
Special Payments Account) shall be promptly distributed on each Regular
Distribution Date (or, in the case of any amount described in Section 2.4(a),
on
the Special Distribution Date thereof) in the following order of priority and
in
accordance with the information provided to the Subordination Agent pursuant
to
Section 3.1(a) hereof:
first,
such
amount as shall be required to reimburse (i) the Subordination Agent for
any reasonable out-of-pocket costs and expenses actually incurred by it (to
the
extent not previously reimbursed) or reasonably expected to be incurred by
it
for the period ending on the next succeeding Regular Distribution Date (which
shall not exceed $150,000 unless approved in writing by the Controlling Party)
in the protection of, or the realization of the value of, the Equipment Notes
or
any Collateral, shall be applied by the Subordination Agent in reimbursement
of
such costs and expenses, (ii) any Trustee for any amounts of the nature
described in clause (i) above actually incurred by it under the applicable
Trust Agreement (to the extent not previously reimbursed), shall be distributed
to such Trustee, (iii) any Liquidity Provider for any amounts of the nature
described in clause (i) above actually incurred by it (to the extent not
previously reimbursed), shall be distributed to such Liquidity Provider, and
(iv) any Liquidity Provider or any Certificateholder for payments, if any,
made by it to the Subordination Agent or any Trustee in respect of amounts
described in clause (i) above actually incurred by it (to the extent not
previously reimbursed) (collectively, the "Administration
Expenses"),
shall
be distributed to such Liquidity Provider or the applicable Trustee for the
account of such Certificateholder, in each such case, pro rata on the basis
of
all amounts described in clauses (i) through
(iv) above;
second,
such
amount as shall be required to pay all accrued and unpaid Liquidity Expenses
owed to each Liquidity Provider shall be distributed to the Liquidity Providers
pro rata on the basis of the amount of Liquidity Expenses owed to each Liquidity
Provider;
third,
such
amount as shall be required to pay the aggregate amount of accrued and unpaid
interest on all Liquidity Obligations (at the rate, or in the amount, provided
in the applicable Liquidity Facility), pro rata on the basis of the amounts
owed
to each Liquidity Provider;
fourth,
such
amount as shall be required (A) if any Cash Collateral Account had been
previously funded as provided in Section 3.5(f), unless (i) a Performing Note
Deficiency exists and a Liquidity Event of Default shall have occurred and
be
continuing with respect to the relevant Liquidity Facility or (ii) a Final
Drawing shall have occurred with respect to such Liquidity Facility, to fund
such Cash Collateral Account up to its Required Amount shall be deposited in
such Cash Collateral Account, (B) if any Liquidity Facility shall become a
Downgraded Facility or a Non-Extended Facility at a time when unreimbursed
Interest Drawings under such Liquidity Facility have reduced the Available
Amount thereunder to zero, unless (i) a Performing Note Deficiency exists and
a
Liquidity Event of Default shall have occurred and be continuing with respect
to
the relevant Liquidity Facility or (ii) a Final Drawing shall have occurred
with
respect to such Liquidity Facility, to deposit into the related Cash Collateral
Account an amount equal to such Cash Collateral Account's Required Amount shall
be deposited in such Cash Collateral Account, and (C) if, with respect to any
particular Liquidity Facility, neither subclause (A) nor subclause (B) of this
clause "fourth" is applicable, to pay or reimburse the Liquidity Provider in
respect of such Liquidity Facility in an amount equal to the amount of all
Liquidity Obligations then due under such Liquidity Facility (other than amounts
payable pursuant to clause "second" or "third" of this Section 3.2), pro rata
on
the basis of the amounts of all such deficiencies and/or unreimbursed Liquidity
Obligations payable to each Liquidity Provider;
fifth,
if,
with respect to any particular Liquidity Facility, any amounts are to be
distributed pursuant to either subclause (A) or (B) of clause "fourth" above,
then the Liquidity Provider with respect to such Liquidity Facility shall be
paid the excess of (x) the aggregate outstanding amount of unreimbursed
Advances (whether or not then due) under such Liquidity Facility over
(y) the Required Amount for the relevant Class, pro rata on the basis of
such amounts in respect of each Liquidity Provider;
sixth,
such
amount as shall be required to reimburse or pay (i) the Subordination Agent
for any Tax (other than Taxes imposed on compensation paid hereunder), expense,
fee, charge or other loss incurred by or any other amount payable to the
Subordination Agent in connection with the transactions contemplated hereby
(to
the extent not previously reimbursed), shall be applied by the Subordination
Agent in reimbursement of such amount, (ii) each Trustee for any Tax (other
than Taxes imposed on compensation paid under the applicable Trust Agreement),
expense, fee, charge, loss or any other amount payable to such Trustee under
the
applicable Trust Agreements (to the extent not previously reimbursed), shall
be
distributed to such Trustee, and (iii) each
Certificateholder
for payments, if any, made by it pursuant to Section 5.2 hereof in respect
of amounts described in clause (i) above, shall be distributed to the
applicable Trustee for the account of such Certificateholder, in each such
case,
pro rata on the basis of all amounts described in clauses (i) through
(iii) above;
seventh,
such
amount as shall be required to pay in full accrued and unpaid interest at the
Stated Interest Rate on Pool Balance of the Class A Certificates (excluding
interest, if any, payable with respect to the Deposits relating to the Class
A
Trust) shall be distributed to the Class A Trustee;
eighth,
such
amount as shall be required to pay unpaid Class B Adjusted Interest to the
holders of the Class B Certificates (excluding interest, if any, payable
with respect to the Deposits relating to the Class B Trust);
ninth,
such
amount as shall be required to pay unpaid Class C Adjusted Interest to the
holders of the Class C Certificates (excluding interest, if any, payable
with respect to the Deposits relating to the Class C Trust);
tenth,
such
amount as shall be required to pay in full Expected Distributions to the holders
of the Class A Certificates on such Distribution Date shall be distributed
to
the Class A Trustee;
eleventh,
such
amount as shall be required to pay in full accrued and unpaid interest at the
Stated Interest Rate on the Pool Balance of the Class B Certificates which
was not previously paid pursuant to clause "eighth" above to the holders of
the Class B Certificates (excluding interest, if any, payable with respect
to the Deposits related to the Class B Trust);
twelfth,
such
amount as shall be required to pay in full Expected Distributions to the holders
of the Class B Certificates on such Distribution Date shall be distributed
to
the Class B Trustee;
thirteenth,
such
amount as shall be required to pay in full accrued and unpaid interest at the
Stated Interest Rate on the Pool Balance of the Class C Certificates which
was not previously paid pursuant to clause "ninth" above to the holders of
the Class C Certificates (excluding interest, if any, payable with respect
to the Deposits related to the Class C Trust);
fourteenth,
such
amount as shall be required to pay in full Expected Distributions to the holders
of the Class C Certificates on such Distribution Date shall be distributed
to
the Class C Trustee; and
fifteenth,
the
balance, if any, of any such amount remaining thereafter shall be held in the
Collection Account for later distribution in accordance with this Article
III.
With
respect to clauses "first" and "sixth" above, no amounts shall be reimbursable
to the Subordination Agent, any Trustee, any Liquidity Provider or any
Certificateholder for any payments made by any such Person in connection with
any Equipment
Note
that
is no longer held by the Subordination Agent (to the extent that such payments
relate to periods after such Equipment Note ceases to be held by the
Subordination Agent).
SECTION
3.3. Other
Payments.
(a) Any payments received by the Subordination Agent for which no
provision as to the application thereof is made in this Agreement shall be
distributed by the Subordination Agent (i) in the order of priority specified
in
Section 3.2 hereof and (ii) to the extent received or realized at any time
after
the Final Distributions for each Class of Certificates have been made, in the
manner provided in clause "first" of Section 3.2 hereof.
(b) Notwithstanding
the priority of payments specified in Section 3.2, in the event any Investment
Earnings on amounts on deposit in any Cash Collateral Account resulting from
an
Unapplied Provider Advance are deposited in the Collection Account or the
Special Payments Account, such Investment Earnings shall be used to pay interest
payable in respect of such Unapplied Provider Advance to the extent of such
Investment Earnings.
(c) If
the
Subordination Agent receives any Scheduled Payment after the Scheduled Payment
Date relating thereto, but prior to such payment becoming an Overdue Scheduled
Payment, then the Subordination Agent shall deposit such Scheduled Payment
in
the Collection Account and promptly distribute such Scheduled Payment in
accordance with the priority of distributions set forth in Section 3.2 hereof;
provided
that,
for the purposes of this Section 3.3(c) only, each reference in clause "tenth",
"twelfth" or "fourteenth" of Section 3.2 to "Distribution Date" shall be deemed
to refer to such Scheduled Payment Date.
SECTION
3.4. Payments
to the Trustees and the Liquidity Providers.
Any
amounts distributed hereunder to any Liquidity Provider shall be paid to such
Liquidity Provider by wire transfer of funds to the address such Liquidity
Provider shall provide to the Subordination Agent. The Subordination Agent
shall
provide a Written Notice of any such transfer to the applicable Liquidity
Provider at the time of such transfer. Any amounts distributed hereunder by
the
Subordination Agent to any Trustee which shall not be the same institution
as
the Subordination Agent shall be paid to such Trustee by wire transfer funds
at
the address such Trustee shall provide to the Subordination Agent.
SECTION
3.5. Liquidity
Facilities.
(a)
Interest
Drawings.
If on
any Distribution Date, after giving effect to the subordination provisions
of
this Agreement, the Subordination Agent shall not have sufficient funds for
the
payment of any amounts due and owing in respect of accrued interest on the
Class A Certificates or the Class B Certificates (at the Stated Interest
Rate for such Class of Certificates) (other than any amount of interest which
was due and payable on the Class A Certificates or the Class B 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), then, prior to 12:30 p.m. (New York City time) on such
Distribution Date, (i) the Subordination Agent shall request a drawing
(each such drawing, an "Interest
Drawing")
under
the Liquidity Facility with respect to such Class of Certificates in an amount
equal to the lesser of (x) an amount sufficient to pay the amount of such
accrued interest (at the applicable Stated Interest Rate for such Class of
Certificates) and (y) the Available Amount under such Liquidity Facility,
and shall pay such amount to the Trustee with respect to such Class of
Certificates in payment of such accrued interest.
(b) Application
of Interest Drawings.
Notwithstanding anything to the contrary contained in this Agreement, (i) all
payments received by the Subordination Agent in respect of an Interest Drawing
under the Class A Liquidity Facility and all amounts withdrawn by the
Subordination Agent from the Class A Cash Collateral Account, and payable in
each case to the Class A Certificateholders or the Class A Trustee, shall be
promptly distributed to the Class A Trustee and (ii) all payments received
by
the Subordination Agent in respect of an Interest Drawing under the Class B
Liquidity Facility and all amounts withdrawn by the Subordination Agent from
the
Class B Cash Collateral Account, and payable in each case to the Class B
Certificateholders or the Class B Trustee, shall be promptly distributed to
the
Class B Trustee.
(c) Downgrade
Drawings.
(i)
With respect to each Liquidity Facility, a Downgrade Drawing shall be requested
by the Subordination Agent thereunder as provided in Section 3.5(c)(iii), if
at
any time a Downgrade Event shall have occurred with respect to such Liquidity
Facility (a "Downgraded
Facility"),
unless an event described in Section 3.5(c)(ii) occurs with respect to such
Liquidity Facility.
(ii) If
at any
time any Liquidity Facility becomes a Downgraded Facility, the Subordination
Agent shall request a Downgrade Drawing thereunder in accordance with Section
3.5(c)(iii), unless the Liquidity Provider under such Downgraded Facility or
Continental arranges for a Replacement Liquidity Provider to issue and deliver
a
Replacement Liquidity Facility to the Subordination Agent within 10 days after
receiving notice of a Downgrade Event (but not later than the expiration date
of
such Downgraded Facility).
(iii) Upon
the
occurrence of any Downgrade Event with respect to any Liquidity Facility, unless
a Replacement Liquidity Facility is arranged as provided in Section 3.5(c)(ii),
the Subordination Agent shall, on the 10th day referred to in Section 3.5(c)(ii)
(or if such 10th day is not a Business Day, on the next succeeding Business
Day)
(or, if earlier, the expiration date of such Downgraded Facility), request
a
drawing in accordance with and to the extent permitted by such Downgraded
Facility (such drawing, a "Downgrade
Drawing")
of the
Available Amount thereunder. Amounts drawn pursuant to a Downgrade Drawing
shall
be maintained and invested as provided in Section 3.5(f) hereof. The applicable
Liquidity Provider may also arrange for a Replacement Liquidity Provider to
issue and deliver a Replacement Liquidity Facility at any time after such
Downgrade Drawing so long as such Downgrade Drawing has not been reimbursed
in
full to such Liquidity Provider.
(d) Non-Extension
Drawings.
If any
Liquidity Facility with respect to any Class of Certificates is scheduled to
expire on a date (the "Stated
Expiration Date")
prior
to the date that is 15 days after the Final Legal Distribution Date for such
Class of Certificates, then, no earlier than the 60th day and no later than
the
40th day prior to the then Stated Expiration Date, the Subordination Agent
shall
request that the applicable Liquidity Provider extend the Stated Expiration
Date
until the earlier of (i) the date which is 15 days after such Final Legal
Distribution Date and (ii) the date that is the day immediately preceding the
364th
day
occurring after the last day of the applicable Consent Period (as hereinafter
defined) (unless the obligations of such Liquidity Provider under such Liquidity
Facility are earlier terminated in accordance with such Liquidity Facility).
Whether or not the Liquidity Provider has received a request from the
Subordination Agent, such Liquidity Provider shall advise the Subordination
Agent, no
earlier
than the 40th
day (or,
if earlier, the date of such Liquidity Provider's receipt of such request,
if
any, from the Subordination Agent) and no later than the 25th
day
prior to the Stated Expiration Date then in effect for such Liquidity Facility
(such period, with respect to such Liquidity Facility, the "Consent
Period"),
whether, in its sole discretion, it agrees to extend such Stated Expiration
Date. If (A) on or before the date on which such Consent Period ends, such
Liquidity Facility shall not have been replaced in accordance with Section
3.5(e) and (B) the applicable Liquidity Provider fails irrevocably and
unconditionally to advise the Subordination Agent on or before the date on
which
such Consent Period ends that such Stated Expiration Date then in effect shall
be so extended for such Liquidity Facility, the Subordination Agent shall,
on
the date on which such Consent Period ends (or as soon as possible thereafter),
in accordance with the terms of the expiring Liquidity Facility (a "Non-Extended
Facility"),
request a drawing under such expiring Liquidity Facility (such drawing, a
"Non-Extension
Drawing")
of all
available and undrawn amounts thereunder. Amounts drawn pursuant to a
Non-Extension Drawing shall be maintained and invested in accordance with
Section 3.5(f) hereof.
(e) Issuance
of Replacement Liquidity Facility.
(i) At any time, Continental may, at its option, with cause or
without cause, arrange for a Replacement Liquidity Facility to replace any
Liquidity Facility for any Class of Certificates (including any Replacement
Liquidity Facility provided pursuant to Section 3.5(e)(ii) hereof); provided,
however,
that
the initial Liquidity Provider for any Liquidity Facility shall not be replaced
by Continental as a Liquidity Provider with respect to such Liquidity Facility
prior to the third anniversary of the Closing Date unless (A) there shall have
become due to such initial Liquidity Provider, or such initial Liquidity
Provider shall have demanded, amounts pursuant to Section 3.01, 3.02 or 3.03
of
any applicable Liquidity Facility and the replacement of such initial Liquidity
Provider would reduce or eliminate the obligation to pay such amounts or
Continental determines in good faith that there is a substantial likelihood
that
such initial Liquidity Provider will have the right to claim any such amounts
(unless such initial Liquidity Provider waives, in writing, any right it may
have to claim such amounts), which determination shall be set forth in a
certificate delivered by Continental to such initial Liquidity Provider setting
forth the basis for such determination and accompanied by an opinion of outside
counsel selected by Continental and reasonably acceptable to such initial
Liquidity Provider verifying the legal conclusions, if any, of such certificate
relating to such basis, provided
that, in
the case of any likely claim for such amounts based upon any proposed, or
proposed change in, law, rule, regulation, interpretation, directive,
requirement, request or administrative practice, such opinion may assume the
adoption or promulgation of such proposed matter, (B) it shall become unlawful
or impossible for such initial Liquidity Provider (or its Facility Office)
to
maintain or fund its LIBOR Advances as described in Section 3.10 of any
Liquidity Facility, (C) any Liquidity Facility of such initial Liquidity
Provider shall become a Downgraded Facility or a Non-Extended Facility or a
Downgrade Drawing or a Non-Extension Drawing shall have occurred under any
Liquidity Facility of such initial Liquidity Provider or (D) such initial
Liquidity Provider shall have breached any of its payment (including, without
limitation, funding) obligations under any Liquidity Facility in respect of
which it is the Liquidity Provider. If such Replacement Liquidity Facility
is
provided at any time after a Downgrade Drawing or a Non-Extension Drawing has
been made, all funds on deposit in the relevant Cash Collateral Account will
be
returned to the Liquidity Provider being replaced.
(ii) If
any Liquidity Provider shall determine not to extend any of
its
Liquidity Facilities in accordance with Section 3.5(d), then such Liquidity
Provider may, at its
option,
arrange for a Replacement Liquidity Facility to replace such Liquidity Facility
during
the period no earlier than 40 days and no later than 25 days prior to the then
effective Stated Expiration Date of such Liquidity Facility. At any time after
a
Non-Extension Drawing has been made under any Liquidity Facility, the Liquidity
Provider thereunder may, at its option, arrange for a Replacement Liquidity
Facility to replace the Liquidity Facility under which such Non-Extension
Drawing has been made.
(iii) No
Replacement Liquidity Facility arranged by Continental or a Liquidity Provider
in accordance with clause (i) or (ii) above or pursuant to Section 3.5(c),
respectively, shall become effective and no such Replacement Liquidity Facility
shall be deemed a "Liquidity Facility" under the Operative Agreements, unless
and until (A) each of the conditions referred to in sub-clauses (iv)(x) and
(z)
below shall have been satisfied, (B) if such Replacement Liquidity Facility
shall materially adversely affect the rights, remedies, interests or obligations
of the Class A Certificateholders or the Class B Certificateholders under any
of
the Operative Agreements, the applicable Trustee shall have consented, in
writing, to the execution and issuance of such Replacement Liquidity Facility
and (C) in the case of a Replacement Liquidity Facility arranged by a Liquidity
Provider under Section 3.5(e)(ii) or pursuant to Section 3.5(c), such
Replacement Liquidity Facility is acceptable to Continental.
(iv) In
connection with the issuance of each Replacement Liquidity Facility, the
Subordination Agent shall (x) prior to the issuance of such Replacement
Liquidity Facility, obtain written confirmation from each Rating Agency that
such Replacement Liquidity Facility will not cause a reduction of any rating
then in effect for any Class of Certificates by such Rating Agency (without
regard to any downgrading of any rating of any Liquidity Provider being replaced
(or, in the case of the initial Liquidity Provider, the Guarantor) pursuant
to
Section 3.5(c) hereof), (y) pay all Liquidity Obligations then owing to the
replaced Liquidity Provider (which payment shall be made first from available
funds in the applicable Cash Collateral Account as described in clause (v)
of
Section 3.5(f) hereof, and thereafter from any other available source,
including, without limitation, a drawing under the Replacement Liquidity
Facility) and (z) cause the issuer of the Replacement Liquidity Facility to
deliver the Replacement Liquidity Facility to the Subordination Agent, together
with a legal opinion opining that such Replacement Liquidity Facility is an
enforceable obligation of such Replacement Liquidity Provider.
(v) Upon
satisfaction of the conditions set forth in clauses (iii) and (iv) of this
Section 3.5(e) with respect to a Replacement Liquidity Facility, (w) the
replaced Liquidity Facility shall terminate, (x) the Subordination Agent shall,
if and to the extent so requested by Continental or the Liquidity Provider
being
replaced, execute and deliver any certificate or other instrument required
in
order to terminate the replaced Liquidity Facility, shall surrender the replaced
Liquidity Facility to the Liquidity Provider being replaced and shall execute
and deliver the Replacement Liquidity Facility and any associated Fee Letters,
(y) each of the parties hereto shall enter into any amendments to this Agreement
necessary to give effect to (1) the replacement of the applicable Liquidity
Provider with the applicable Replacement Liquidity Provider and (2) the
replacement of the applicable Liquidity Facility with the applicable Replacement
Liquidity Facility and (z) the applicable Replacement Liquidity Provider shall
be deemed to be a Liquidity Provider with the rights and obligations of a
Liquidity Provider
hereunder
and under the other Operative Agreements and such Replacement Liquidity Facility
shall be deemed to be a Liquidity Facility hereunder and under the other
Operative Agreements.
(f) Cash
Collateral Accounts; Withdrawals; Investments.
In the
event the Subordination Agent shall draw all available amounts under the Class
A
Liquidity Facility or the Class B Liquidity Facility pursuant to Section 3.5(c),
3.5(d) or 3.5(i) hereof, or in the event amounts are to be deposited in the
Class A Cash Collateral Account or the Class B Cash Collateral Account pursuant
to subclause (A) or (B) of clause "fourth" of Section 3.2, amounts so drawn
or
to be deposited, as the case may be, shall be deposited by the Subordination
Agent in the Class A Cash Collateral Account or the Class B Cash Collateral
Account, as applicable. All amounts on deposit in each Cash Collateral Account
shall be invested and reinvested in Eligible Investments in accordance with
Section 2.2(b) hereof.
On
each
Interest Payment Date (or, in the case of any Special Distribution Date with
respect to the distribution of a Special Payment, on such Special Distribution
Date), Investment Earnings on amounts on deposit in each Cash Collateral Account
with respect to any Liquidity Facility (or, in the case of any Special
Distribution Date with respect to the distribution of a Special Payment, so
long
as no Indenture Default shall have occurred and be continuing under any
Indenture, a fraction of such Investment Earnings equal to the Section 2.4
Fraction) shall be deposited in the Collection Account (or, in the case of
any
Special Distribution Date with respect to the distribution of a Special Payment,
the Special Payments Account) and applied on such Interest Payment Date (or
Special Distribution Date, as the case may be) in accordance with Section 3.2
or
3.3 (as applicable). The Subordination Agent shall deliver a written statement
to Continental and each Liquidity Provider one day prior to each Interest
Payment Date and Special Distribution Date setting forth the aggregate amount
of
Investment Earnings held in the Cash Collateral Accounts as of such date. In
addition, from and after the date funds are so deposited, the Subordination
Agent shall make withdrawals from such accounts as follows:
(i) on
each
Distribution Date, the Subordination Agent shall, to the extent it shall not
have received funds to pay accrued and unpaid interest due and owing on the
Class A Certificates (at the applicable Stated Interest Rate for the Class
A
Certificates) after giving effect to the subordination provisions of this
Agreement, withdraw from the Class A Cash Collateral Account, and pay to the
Class A Trustee, an amount equal to the lesser of (x) an amount necessary
to pay accrued and unpaid interest (at the applicable Stated Interest Rate
for
the Class A Certificates) on such Class A Certificates and (y) the amount on
deposit in the Class A Cash Collateral Account;
(ii) on
each
Distribution Date, the Subordination Agent shall, to the extent it shall not
have received funds to pay accrued and unpaid interest due and owing on the
Class B Certificates (at the Stated Interest Rate for the Class B Certificates)
after giving effect to the subordination provisions of this Agreement, withdraw
from the Class B Cash Collateral Account, and pay to the Class B Trustee, an
amount equal to the lesser of (x) an amount necessary to pay accrued and
unpaid interest (at the Stated Interest Rate for the Class B Certificates)
on
such Class B Certificates and (y) the amount on deposit in the Class B Cash
Collateral Account;
(iii) on
each
date on which the Pool Balance of the Class A Trust shall have been reduced
by
payments made to the Class A Certificateholders pursuant to Section 3.2
hereof or pursuant to Section 2.03 of the Escrow and Paying Agent Agreement
for
such Class, the Subordination Agent shall withdraw from the Class A Cash
Collateral Account such amount as is necessary so that, after giving effect
to
the reduction of the Pool Balance on such date (and any reduction in the amounts
on deposit in the Class A Cash Collateral Account resulting from a prior
withdrawal of amounts on deposit in the Class A Cash Collateral Account on
such
date) and any transfer of Investment Earnings from such Cash Collateral Account
to the Collection Account or the Special Payments Account on such date, an
amount equal to the sum of the Required Amount (with respect to the Class A
Liquidity Facility) plus (if on a Distribution Date not coinciding with an
Interest Payment Date) Investment Earnings on deposit in such Cash Collateral
Account (after giving effect to any such transfer of Investment Earnings) will
be on deposit in the Class A Cash Collateral Account and shall first, pay such
withdrawn amount to the Class A Liquidity Provider until the Liquidity
Obligations (with respect to the Class A Certificates) owing to such Liquidity
Provider shall have been paid in full, and second, deposit any remaining
withdrawn amount in the Collection Account;
(iv) on
each
date on which the Pool Balance of the Class B Trust shall have been reduced
by
payments made to the Class B Certificateholders pursuant to Section 3.2 hereof
or pursuant to Section 2.03 of the Escrow and Paying Agent Agreement for such
Class, the Subordination Agent shall withdraw from the Class B Cash Collateral
Account such amount as is necessary so that, after giving effect to the
reduction of the Pool Balance on such date (and any reduction in the amounts
on
deposit in the Class B Cash Collateral Account resulting from a prior withdrawal
of amounts on deposit in the Class B Cash Collateral Account on such date)
and
any transfer of Investment Earnings from such Cash Collateral Account to the
Collection Account or the Special Payments Account on such date, an amount
equal
to the sum of the Required Amount (with respect to the Class B Liquidity
Facility) plus (if on a Distribution Date not coinciding with an Interest
Payment Date) Investment Earnings on deposit in such Cash Collateral Account
(after giving effect to any such transfer of Investment Earnings) will be on
deposit in the Class B Cash Collateral Account and shall first, pay such
withdrawn amount to the Class B Liquidity Provider until the Liquidity
Obligations (with respect to the Class B Certificates) owing to such Liquidity
Provider shall have been paid in full, and second, deposit any remaining
withdrawn amount in the Collection Account;
(v) if
a
Replacement Liquidity Facility for any Class of Certificates shall be delivered
to the Subordination Agent following the date on which funds have been deposited
into the Cash Collateral Account related to the Liquidity Facility for such
Class of Certificates, the Subordination Agent shall withdraw all amounts on
deposit in such Cash Collateral Account and shall pay such amounts to the
replaced Liquidity Provider until all Liquidity Obligations owed to such Person
shall have been paid in full, and shall deposit any remaining amount in the
Collection Account; and
(vi) following
the payment of Final Distributions with respect to any Class of Certificates,
on
the date on which the Subordination Agent shall have been notified by the
Liquidity Provider for such Class of Certificates that the Liquidity Obligations
owed
to
such
Liquidity Provider have been paid in full, the Subordination Agent shall
withdraw all amounts on deposit in the Cash Collateral Account related to the
Liquidity Facility in respect of such Class of Certificates and shall deposit
such amount in the Collection Account.
(g) Reinstatement.
With
respect to any Interest Drawing under the Liquidity Facility for any Trust,
upon
the reimbursement of the applicable Liquidity Provider for all or any part
of
the amount of such Interest Drawing, together with any accrued interest thereon,
the Available Amount of such Liquidity Facility shall be reinstated by an amount
equal to the amount of such Interest Drawing so reimbursed to the applicable
Liquidity Provider but not to exceed the Stated Amount for such Liquidity
Facility; provided,
however,
that
such Liquidity Facility shall not be so reinstated in part or in full at any
time if (x) both a Performing Note Deficiency exists and a Liquidity Event
of
Default shall have occurred and be continuing with respect to the relevant
Liquidity Facility or (y) a Final Drawing, a Non-Extension Drawing or a
Downgrade Drawing shall have occurred with respect to such Liquidity Facility
or
an Interest Drawing shall have been converted into a Final Drawing. In the
event
that, with respect to any particular Liquidity Facility, (i) funds are
withdrawn from any related Cash Collateral Account pursuant to clause (i) or
(ii) of Section 3.5(f) hereof or (ii) such Liquidity Facility shall become
a
Downgraded Facility or a Non-Extended Facility at a time when unreimbursed
Interest Drawings under such Liquidity Facility have reduced the Available
Amount thereunder to zero, then funds received by the Subordination Agent at
any
time other than (x) any time when a Liquidity Event of Default shall have
occurred and be continuing with respect to such Liquidity Facility and a
Performing Note Deficiency exists or (y) any time after a Final Drawing shall
have occurred with respect to such Liquidity Facility or an Interest Drawing
shall have been converted into a Final Drawing, shall be deposited in such
Cash
Collateral Account as and to the extent provided in clause "fourth" of Section
3.2 and applied in accordance with Section 3.5(f) hereof.
(h) Reimbursement.
The
amount of each drawing under the Liquidity Facilities shall be due and payable,
together with interest thereon, on the dates and at the rates, respectively,
provided in the Liquidity Facilities.
(i) Final
Drawing.
Upon
receipt from a Liquidity Provider of a Termination Notice with respect to any
Liquidity Facility, the Subordination Agent shall, not later than the date
specified in such Termination Notice, in accordance with the terms of such
Liquidity Facility, request a drawing under such Liquidity Facility of all
available and undrawn amounts thereunder (a "Final
Drawing").
Amounts drawn pursuant to a Final Drawing shall be maintained and invested
in
accordance with Section 3.5(f) hereof.
(j) Adjustments
of Stated Amount.
Promptly following each date on which the Required Amount of the Liquidity
Facility for a Class of Certificates is reduced as a result of a reduction
in
the Pool Balance with respect to such Certificates or otherwise, the Stated
Amount of such Liquidity Facility shall automatically be adjusted to an amount
equal to the Required Amount with respect to such Liquidity Facility (as
calculated by the Subordination Agent after giving effect to such
payment).
(k) Relation
to Subordination Provisions.
Interest Drawings under the Liquidity Facilities and withdrawals from the Cash
Collateral Accounts relating to such Liquidity
Facilities,
in each case, in respect of interest on the Certificates of any Class, will
be
distributed to the Trustee for such Class of Certificates, notwithstanding
Section 3.2 hereof.
(l) Assignment
of Liquidity Facility.
The
Subordination Agent agrees not to consent to the assignment by any Liquidity
Provider of any of its rights or obligations under any Liquidity Facility or
any
interest therein, unless (i) Continental shall have consented to such
assignment and (ii) each Rating Agency shall have provided a Ratings
Confirmation in respect of such assignment; provided,
that
the Subordination Agent shall consent to such assignment if the conditions
in
the foregoing clauses (i) and (ii) are satisfied, and the foregoing is not
intended to and shall not be construed to limit the rights of the initial
Liquidity Provider under Section 3.5(e)(ii).
EXERCISE
OF REMEDIES
SECTION
4.1. Directions
from the Controlling Party.
(a) (i)
Following the occurrence and during the continuation of an Indenture Default
under any Indenture, the Controlling Party (except as otherwise provided in
Section 2.6(d)) shall direct the Subordination Agent, as the holder of Equipment
Notes issued under such Indenture, which in turn shall direct the Loan Trustee
under such Indenture, in the exercise of remedies available to the holder of
such Equipment Notes, including, without limitation, the ability to vote all
such Equipment Notes held by the Subordination Agent in favor of Accelerating
such Equipment Notes in accordance with the provisions of such Indenture. If
the
Equipment Notes issued pursuant to any Indenture and held by the Subordination
Agent have been Accelerated following an Indenture Default with respect thereto,
the Controlling Party may direct the Subordination Agent to sell, assign,
contract to sell or otherwise dispose of and deliver all (but not less than
all)
of such Equipment Notes to any Person at public or private sale, at any location
at the option of the Controlling Party, all upon such terms and conditions
as it
may reasonably deem advisable in accordance with applicable law.
(ii) Following
the occurrence and during the continuation of an Indenture Default under any
Indenture, in the exercise of remedies pursuant to such Indenture, the Loan
Trustee under such Indenture may be directed to lease the related Aircraft
to
any Person (including Continental) so long as the Loan Trustee in doing so
acts
in a "commercially reasonable" manner within the meaning of Article 9 of the
Uniform Commercial Code as in effect in any applicable jurisdiction (including
Sections 9-610 and 9-627 thereof).
(iii) Notwithstanding
the foregoing, so long as any Certificates remain Outstanding, during the period
ending on the date which is nine months after the earlier of (x) the
Acceleration of the Equipment Notes issued pursuant to any Indenture or (y)
the
occurrence of a Continental Bankruptcy Event, without the consent of each
Trustee, no Aircraft subject to the Lien of such Indenture or such Equipment
Notes may be sold if the net proceeds from such sale would be less than the
Minimum Sale Price for such Aircraft or such Equipment Notes.
(iv) Upon
the
occurrence and continuation of an Indenture Default under any Indenture, the
Subordination Agent will obtain three desktop appraisals from the Appraisers
selected by the Controlling Party setting forth the current market value,
current lease rate and distressed value (in each case, as defined by the
International Society of Transport Aircraft Trading or any successor
organization) of the Aircraft subject to such Indenture (each such appraisal,
an
"Appraisal" and
the
current market value appraisals being referred to herein as the "Post-Default
Appraisals"). For
so
long as any Indenture Default shall be continuing under any Indenture, and
without limiting the right of the Controlling Party to request more frequent
Appraisals, the Subordination Agent will obtain updated Appraisals on the date
that is 364 days from the date of the most recent Appraisal (or if a
Continental Bankruptcy Event shall have occurred and is continuing, on the
date
that is 180 days from the date of the most recent
Appraisal).
(b) Following
the occurrence and during the continuance of an Indenture Default under any
Indenture, the Controlling Party shall take such actions as it may reasonably
deem most effectual to complete the sale or other disposition of the relevant
Aircraft or Equipment Notes. In addition, in lieu of any sale, assignment,
contract to sell or other disposition, the Controlling Party may maintain or
cause the Subordination Agent to maintain possession of such Equipment Notes
and
continue to apply monies received in respect of such Equipment Notes in
accordance with Article III hereof. In addition, in lieu of such sale,
assignment, contract to sell or other disposition, or in lieu of such
maintenance of possession, the Controlling Party may, subject to the terms
and
conditions of the related Indenture, instruct the Loan Trustee under such
Indenture to foreclose on the Lien on the related Aircraft or to take any other
remedial action permitted under such Indenture or under any applicable
law.
(c) If
following a Continental Bankruptcy Event and during the pendency thereof, the
Controlling Party receives a proposal from or on behalf of Continental to
restructure the financing of any one or more of the Aircraft, the Controlling
Party shall promptly thereafter give the Subordination Agent and each Trustee
notice of the material economic terms and conditions of such restructuring
proposal whereupon the Subordination Agent acting on behalf of each Trustee
shall endeavor using reasonable commercial efforts to make such terms and
conditions of such restructuring proposal available to all Certificateholders
(whether by posting on DTC’s Internet board or otherwise). Thereafter, neither
the Subordination Agent nor any Trustee, whether acting on instructions of
the
Controlling Party or otherwise, may, without the consent of each Trustee, enter
into any term sheet, stipulation or other agreement (whether in the form of
an
adequate protection stipulation, an extension under Section 1110(b) of the
Bankruptcy Code or otherwise) to effect any such restructuring proposal with
or
on behalf of Continental unless and until the material economic terms and
conditions of such restructuring shall have been made available to all
Certificateholders for a period of not less than 15 calendar days (except that
such requirement shall not apply to any such term sheet, stipulation or other
agreement that is entered into on or prior to the expiry of the 60-Day Period
and that is effective for a period not longer than three months from the expiry
of the 60-Day Period). In the event that any Certificateholder gives irrevocable
notice of the exercise of (i) its right to purchase any Equipment Notes pursuant
to Section 2.7 hereof or (ii) its right to purchase all (but not less than
all)
of the Class of Certificates represented by the then Controlling Party pursuant
to the applicable Trust Agreement, in either case, prior to the expiry of the
15-day notice period specified above, such Controlling Party may not direct
the
Subordination Agent or any Trustee to
enter
into (i) in the case of such purchase of Equipment Notes, any such restructuring
proposal with respect to the Aircraft related to such Equipment Notes, or (ii)
in the case of such purchase of Certificates, any such restructuring proposal
with respect to any of the Aircraft, in either case, unless and until such
Certificateholder shall fail to purchase such Equipment Notes or Class of
Certificates, as applicable, on the date that it is required to make such
purchase.
SECTION
4.2. Remedies
Cumulative.
Each and
every right, power and remedy given to the Trustees, the Liquidity Providers,
the Controlling Party or the Subordination Agent specifically or otherwise
in
this Agreement shall be cumulative and shall be in addition to every other
right, power and remedy herein specifically given or now or hereafter existing
at law, in equity or by statute, and each and every right, power and remedy
whether specifically herein given or otherwise existing may, subject always
to
the terms and conditions hereof, be exercised from time to time and as often
and
in such order as may be deemed expedient by any Trustee, any Liquidity Provider,
the Controlling Party or the Subordination Agent, as appropriate, and the
exercise or the beginning of the exercise of any power or remedy shall not
be
construed to be a waiver of the right to exercise at the same time or thereafter
any other right, power or remedy. No delay or omission by any Trustee, any
Liquidity Provider, the Controlling Party or the Subordination Agent in the
exercise of any right, remedy or power or in the pursuit of any remedy shall
impair any such right, power or remedy or be construed to be a waiver of any
default or to be an acquiescence therein.
SECTION
4.3. Discontinuance
of Proceedings.
In case
any party to this Agreement (including the Controlling Party in such capacity)
shall have instituted any Proceeding to enforce any right, power or remedy
under
this Agreement by foreclosure, entry or otherwise, and such Proceeding shall
have been discontinued or abandoned for any reason or shall have been determined
adversely to the Person instituting such Proceeding, then and in every such
case
each such party shall, subject to any determination in such Proceeding, be
restored to its former position and rights hereunder, and all rights, remedies
and powers of such party shall continue as if no such Proceeding had been
instituted.
SECTION
4.4. Right
of Certificateholders and the Liquidity Providers to Receive Payments Not to
Be
Impaired.
Anything
in this Agreement to the contrary notwithstanding but subject to each Trust
Agreement, the right of any Certificateholder or any Liquidity Provider,
respectively, to receive payments hereunder (including without limitation
pursuant to Section 3.2 hereof) when due, or to institute suit for the
enforcement of any such payment on or after the applicable Distribution Date,
shall not be impaired or affected without the consent of such Certificateholder
or such Liquidity Provider, respectively.
SECTION
4.5. Undertaking
for Costs.
In any
Proceeding for the enforcement of any right or remedy under this Agreement
or in
any Proceeding against any Controlling Party or the Subordination Agent for
any
action taken or omitted by it as Controlling Party or Subordination Agent,
as
the case may be, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having
due
regard to the merits and good faith of the claims or defenses made by the party
litigant. The provisions of this Section do not apply to a suit instituted
by
the Subordination Agent, a Liquidity Provider or a Trustee or a suit
by
Certificateholders
holding more than 10% of the original principal amount of any Class of
Certificates.
DUTIES
OF
THE SUBORDINATION AGENT;
AGREEMENTS
OF TRUSTEES, ETC.
SECTION
5.1. Notice
of Indenture Default or Triggering Event.
(a) In
the event the Subordination Agent shall have actual knowledge of the occurrence
of an Indenture Default or a Triggering Event, as promptly as practicable,
and
in any event within 10 days after obtaining knowledge thereof, the Subordination
Agent shall transmit by mail or courier to the Rating Agencies, the Liquidity
Providers and the Trustees notice of such Indenture Default or Triggering Event,
unless such Indenture Default or Triggering Event shall have been cured or
waived. For all purposes of this Agreement, in the absence of actual knowledge
on the part of a Responsible Officer, the Subordination Agent shall not be
deemed to have knowledge of any Indenture Default or Triggering Event unless
notified in writing by one or more Trustees, one or more of the Liquidity
Providers or one or more Certificateholders.
(b) Other
Notices.
The
Subordination Agent will furnish to each Liquidity Provider and each Trustee,
promptly upon receipt thereof, duplicates or copies of all reports, notices,
requests, demands, certificates, financial statements and other instruments
furnished to the Subordination Agent as registered holder of the Equipment
Notes
or otherwise in its capacity as Subordination Agent to the extent the same
shall
not have been otherwise directly distributed to such Liquidity Provider or
Trustee, as applicable, pursuant to the express provision of any other Operative
Agreement.
(c) Securities
Position.
Upon
the occurrence of an Indenture Default, the Subordination Agent shall instruct
the Trustees to, and the Trustees shall, request that DTC post on its Internet
bulletin board a securities position listing setting forth the names of all
the
parties reflected on DTC's books as holding interests in the
Certificates.
(d) Reports.
Promptly after the occurrence of a Triggering Event or an Indenture Default
resulting from the failure of Continental to make payments on any Equipment
Note
and on every Regular Distribution Date while the Triggering Event or such
Indenture Default shall be continuing, the Subordination Agent will provide
to
the Trustee, Liquidity Providers, the Rating Agencies and Continental a
statement setting forth the following information:
(i) after
a
Continental Bankruptcy Event, with respect to each Aircraft, whether such
Aircraft is (A) subject to the 60-day period of Section 1110 of
the Bankruptcy Code, (B) subject to an election by Continental under
Section 1110(a) of the Bankruptcy Code, (C) covered by an agreement
contemplated by Section 1110(b) of the Bankruptcy Code or (D) not
subject to any of (A), (B) or (C);
(ii) to
the
best of the Subordination Agent's knowledge, after requesting such information
from Continental, (A) whether the Aircraft are currently in
service
or
parked
in storage, (B) the maintenance status of the Aircraft and (C) the
location of the Engines (as defined in the Indentures);
(iii) the
current Pool Balance of the Certificates, the Preferred B Pool Balance, the
Preferred C Pool Balance and outstanding principal amount of all Equipment
Notes;
(iv) the
expected amount of interest which will have accrued on the Equipment Notes
and
on the Certificates as of the next Regular Distribution Date;
(v) the
amounts paid to each Person on such Distribution Date pursuant to this
Agreement;
(vi) details
of the amounts paid on such Distribution Date identified by reference to the
relevant provision of this Agreement and the source of payment (by Aircraft
and
party);
(vii) if
the
Subordination Agent has made a Final Drawing under any Liquidity
Facility;
(viii) the
amounts currently owed to each Liquidity Provider;
(ix) the
amounts drawn under each Liquidity Facility; and
(x) after
a
Continental Bankruptcy Event, any operational reports filed by Continental
with
the bankruptcy court which are available to the Subordination Agent on a
non-confidential basis.
SECTION
5.2. Indemnification.
The
Subordination Agent shall not be required to take any action or refrain from
taking any action under Section 5.1 (other than the first sentence thereof)
or
Article IV hereof unless the Subordination Agent shall have been indemnified
(to
the extent and in the manner reasonably satisfactory to the Subordination Agent)
against any liability, cost or expense (including counsel fees and expenses)
which may be incurred in connection therewith. The Subordination Agent shall
not
be under any obligation to take any action under this Agreement and nothing
contained in this Agreement shall require the Subordination Agent to expend
or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or powers
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it. The Subordination Agent shall not be required to take any action under
Section 5.1 (other than the first sentence thereof) or Article IV hereof, nor
shall any other provision of this Agreement be deemed to impose a duty on the
Subordination Agent to take any action, if the Subordination Agent shall have
been advised by counsel that such action is contrary to the terms hereof or
is
otherwise contrary to law.
SECTION
5.3. No
Duties Except as Specified in Intercreditor Agreement.
The
Subordination Agent shall not have any duty or obligation to take or refrain
from taking any action under, or in connection with, this Agreement, except
as
expressly provided by the terms of this Agreement; and no implied duties or
obligations shall be read into this Agreement against
the
Subordination Agent. The Subordination Agent agrees that it will, in its
individual capacity and at its own cost and expense (but without any right
of
indemnity in respect of any such cost or expense under Section 5.2 or 7.1
hereof) promptly take such action as may be necessary to duly discharge all
Liens on any of the Trust Accounts or any monies deposited therein which result
from claims against it in its individual capacity not related to its activities
hereunder or any other Operative Agreement.
SECTION
5.4. Notice
from the Liquidity Providers and Trustees.
If any
Liquidity Provider or Trustee has notice of an Indenture Default or a Triggering
Event, such Person shall promptly give notice thereof to all other Liquidity
Providers and Trustees and to the Subordination Agent, provided,
however,
that no
such Person shall have any liability hereunder as a result of its failure to
deliver any such notice.
THE
SUBORDINATION AGENT
SECTION
6.1. Authorization;
Acceptance of Trusts and Duties.
Each of
the Class A Trustee and the Class B Trustee hereby designates and appoints
the
Subordination Agent as the agent and trustee of such Trustee under the
applicable Liquidity Facility and authorizes the Subordination Agent to enter
into the applicable Liquidity Facility as agent and trustee for such Trustee.
Each of the Liquidity Providers and the Trustees hereby designates and appoints
the Subordination Agent as the Subordination Agent under this Agreement. WTC
hereby accepts the duties hereby created and applicable to it as the
Subordination Agent and agrees to perform the same but only upon the terms
of
this Agreement and agrees to receive and disburse all monies received by it
in
accordance with the terms hereof. The Subordination Agent shall not be
answerable or accountable under any circumstances, except (a) for its own
willful misconduct or gross negligence (or ordinary negligence in the handling
of funds), (b) as provided in Sections 2.2 or 5.3 hereof and (c) for liabilities
that may result from the material inaccuracy of any representation or warranty
of the Subordination Agent made in its individual capacity in any Operative
Agreement. The Subordination Agent shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Subordination Agent, unless
it is proved that the Subordination Agent was negligent in ascertaining the
pertinent facts.
SECTION
6.2. Absence
of Duties.
The
Subordination Agent shall have no duty to see to any recording or filing of
this
Agreement or any other document, or to see to the maintenance of any such
recording or filing.
SECTION
6.3.. o
Representations or Warranties as to Documents.
The
Subordination Agent in its individual capacity does not make nor shall be deemed
to have made any representation or warranty as to the validity, legality or
enforceability of this Agreement or any other Operative Agreement or as to
the
correctness of any statement contained in any thereof, except for the
representations and warranties of the Subordination Agent, made in its
individual capacity, under any Operative Agreement to which it is a party.
The
Certificateholders, the Trustees and the Liquidity Providers make no
representation or warranty hereunder whatsoever.
SECTION
6.4. No
Segregation of Monies; No Interest.
Any
monies paid to or retained by the Subordination Agent pursuant to any provision
hereof and not then required to be distributed to any Trustee or any Liquidity
Provider as provided in Articles II and III hereof or deposited into one or
more
Trust Accounts need not be segregated in any manner except to the extent
required by such Articles II and III and by law, and the Subordination Agent
shall not (except as otherwise provided in Section 2.2 hereof) be liable for
any
interest thereon; provided,
however,
that
any payments received or applied hereunder by the Subordination Agent shall
be
accounted for by the Subordination Agent so that any portion thereof paid or
applied pursuant hereto shall be identifiable as to the source
thereof.
SECTION
6.5. Reliance;
Agents; Advice of Counsel.
The
Subordination Agent shall not incur liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond or other document or paper believed by it to be genuine
and believed by it to be signed by the proper party or parties. As to the Pool
Balance of any Trust as of any date, the Subordination Agent may for all
purposes hereof rely on a certificate signed by any Responsible Officer of
the
applicable Trustee, and such certificate shall constitute full protection to
the
Subordination Agent for any action taken or omitted to be taken by it in good
faith in reliance thereon. As to any fact or matter relating to the Liquidity
Providers or the Trustees the manner of ascertainment of which is not
specifically described herein, the Subordination Agent may for all purposes
hereof rely on a certificate, signed by any Responsible Officer of the
applicable Liquidity Provider or Trustee, as the case may be, as to such fact
or
matter, and such certificate shall constitute full protection to the
Subordination Agent for any action taken or omitted to be taken by it in good
faith in reliance thereon. The Subordination Agent shall assume, and shall
be
fully protected in assuming, that each of the Liquidity Providers and each
of
the Trustees are authorized to enter into this Agreement and to take all action
to be taken by them pursuant to the provisions hereof, and shall not inquire
into the authorization of each of the Liquidity Providers and the Trustees
with
respect thereto. In the administration of the trusts hereunder, the
Subordination Agent may execute any of the trusts or powers hereof and perform
its powers and duties hereunder directly or through agents or attorneys and
may
consult with counsel, accountants and other skilled persons to be selected
and
retained by it, and the Subordination Agent shall not be liable for the acts
or
omissions of any agent appointed with due care or for anything done, suffered
or
omitted in good faith by it in accordance with the advice or written opinion
of
any such counsel, accountants or other skilled persons.
SECTION
6.6. Capacity
in Which Acting.
The
Subordination Agent acts hereunder solely as agent and trustee herein and not
in
its individual capacity, except as otherwise expressly provided in the Operative
Agreements.
SECTION
6.7. Compensation.
The
Subordination Agent shall be entitled to reasonable compensation, including
expenses and disbursements, for all services rendered hereunder and shall have
a
priority claim to the extent set forth in Article III hereof on all monies
collected hereunder for the payment of such compensation, to the extent that
such compensation shall not be paid by others. The Subordination Agent agrees
that it shall have no right against any Trustee or Liquidity Provider for any
fee as compensation for its services as agent under this Agreement. The
provisions of this Section 6.7 shall survive the termination of this
Agreement.
SECTION
6.8. May
Become Certificateholder.
The
institution acting as Subordination Agent hereunder may become a
Certificateholder and have all rights and benefits of a Certificateholder to
the
same extent as if it were not the institution acting as the Subordination
Agent.
SECTION
6.9. Subordination
Agent Required; Eligibility.
There
shall at all times be a Subordination Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States
of
America or of any State or the District of Columbia having a combined capital
and surplus of at least $100,000,000 (or the obligations of which, whether
now
in existence or hereafter incurred, are fully and unconditionally guaranteed
by
a corporation organized and doing business under the laws of the United States
of America, any State thereof or of the District of Columbia and having a
combined capital and surplus of at least $100,000,000), if there is such an
institution willing and able to perform the duties of the Subordination Agent
hereunder upon reasonable or customary terms. Such corporation shall be a
citizen of the United States and shall be authorized under the laws of the
United States or any State thereof or of the District of Columbia to exercise
corporate trust powers and shall be subject to supervision or examination by
federal, state or District of Columbia authorities. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of any of the aforesaid supervising or examining authorities,
then,
for the purposes of this Section 6.9, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published.
In
case
at any time the Subordination Agent shall cease to be eligible in accordance
with the provisions of this Section, the Subordination Agent shall resign
immediately in the manner and with the effect specified in Section
8.1.
SECTION
6.10. Money
to Be Held in Trust.
All
Equipment Notes, monies and other property deposited with or held by the
Subordination Agent pursuant to this Agreement shall be held in trust for the
benefit of the parties entitled to such Equipment Notes, monies and other
property. All such Equipment Notes, monies or other property shall be held
in
the Trust Department of the institution acting as Subordination Agent
hereunder.
INDEMNIFICATION
OF SUBORDINATION AGENT
SECTION
7.1. Scope
of Indemnification.
The
Subordination Agent shall be indemnified hereunder to the extent and in the
manner described in Section 8.1 of the Participation Agreements and Section
6 of
the Note Purchase Agreement. The indemnities contained in such Sections of
such
agreements shall survive the termination of this Agreement.
SECTION
8.1. Replacement
of Subordination Agent; Appointment of Successor.
The
Subordination Agent may resign at any time by so notifying the Trustees and
the
Liquidity Providers. The Controlling Party may remove the Subordination Agent
for cause by so notifying the Subordination Agent and may appoint a successor
Subordination Agent. The Controlling Party shall remove the Subordination Agent
if:
(1) the
Subordination Agent fails to comply with Section 6.9 hereof;
(2) the
Subordination Agent is adjudged bankrupt or insolvent;
(3) a
receiver or other public officer takes charge of the Subordination Agent or
its
property; or
(4) the
Subordination Agent otherwise becomes incapable of acting.
If
the
Subordination Agent resigns or is removed or if a vacancy exists in the office
of Subordination Agent for any reason (the Subordination Agent in such event
being referred to herein as the retiring Subordination Agent), the Controlling
Party shall promptly appoint a successor Subordination Agent.
A
successor Subordination Agent shall deliver (x) a written acceptance of its
appointment as Subordination Agent hereunder to the retiring Subordination
Agent
and (y) a written assumption of its obligations hereunder and under each
Liquidity Facility to each party hereto, upon which the resignation or removal
of the retiring Subordination Agent shall become effective, and the successor
Subordination Agent shall have all the rights, powers and duties of the
Subordination Agent under this Agreement. The successor Subordination Agent
shall mail a notice of its succession to the Liquidity Providers and the
Trustees. The retiring Subordination Agent shall promptly transfer its rights
under each of the Liquidity Facilities and all of the property held by it as
Subordination Agent to the successor Subordination Agent.
If
a
successor Subordination Agent does not take office within 60 days after the
retiring Subordination Agent resigns or is removed, the retiring Subordination
Agent or one or more of the Trustees may petition any court of competent
jurisdiction for the appointment of a successor Subordination
Agent.
If
the
Subordination Agent fails to comply with Section 6.9 hereof (to the extent
applicable), one or more of the Trustees, one or more of the Liquidity Providers
may petition any court of competent jurisdiction for the removal of the
Subordination Agent and the appointment of a successor Subordination
Agent.
Notwithstanding
the foregoing, no resignation or removal of the Subordination Agent shall be
effective unless and until a successor has been appointed. No appointment of
a
successor Subordination Agent shall be effective unless and until the Rating
Agencies shall have delivered a Ratings Confirmation.
SUPPLEMENTS
AND AMENDMENTS
SECTION
9.1. Amendments,
Waivers, etc.(a) This
Agreement may not be supplemented, amended or modified without the consent
of
each Trustee (acting, except in the case of any amendment pursuant to Section
3.5(e)(v)(y) hereof with respect to any Replacement Liquidity Facility or any
amendment contemplated by the last sentence of this Section 9.1(a), with the
consent of holders of Certificates of the related Class evidencing interests
in
the related Trust aggregating not less than a majority in interest in such
Trust
or as otherwise authorized pursuant to the relevant Trust Agreement), the
Subordination Agent and each Liquidity Provider; provided,
however,
that
this Agreement may be supplemented, amended or modified without the consent
of
any Trustee if such supplement, amendment or modification (i) is in accordance
with Section 9.1(c) or Section 9.1(d) hereof or (ii) cures an ambiguity or
inconsistency or does not materially adversely affect such Trustee or the
holders of the related Class of Certificates; provided further,
however,
that,
if such supplement, amendment or modification (A) would (x) directly or
indirectly modify or supersede, or otherwise conflict with, Section 2.2(b),
Section 3.5(e), Section 3.5(f)(other than the last sentence thereof), Section
3.5(l), the last sentence of this Section 9.1(a), Section 9.1(c), Section
9.1(d), the second sentence of Section 10.6 or this proviso (collectively,
the
"Continental
Provisions")
or (y)
otherwise adversely affect the interests of a potential Replacement Liquidity
Provider or of Continental with respect to its ability to replace any Liquidity
Facility or with respect to its payment obligations under any Operative
Agreement or (B) is made pursuant to the last sentence of this Section 9.1(a)
or
pursuant to Section 9.1(c) or Section 9.1(d), then such supplement, amendment
or
modification shall not be effective without the additional written consent
of
Continental. Notwithstanding the foregoing, without the consent of each
Certificateholder and each Liquidity Provider, no supplement, amendment or
modification of this Agreement may (i) reduce the percentage of the interest
in
any Trust evidenced by the Certificates issued by such Trust necessary to
consent to modify or amend any provision of this Agreement or to waive
compliance therewith or (ii) except as provided in this Section 9.1(a), Section
9.1(c) or Section 9.1(d), modify Section 2.4 or 3.2 hereof, relating to the
distribution of monies received by the Subordination Agent hereunder from the
Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained
in
this Section shall require the consent of a Trustee at any time following the
payment of Final Distributions with respect to the related Class of
Certificates. If the Replacement Liquidity Facility for any Liquidity Facility
in accordance with Section 3.5(e) hereof is to be comprised of more than one
instrument as contemplated by the definition of the term "Replacement Liquidity
Facility", then each of the parties hereto agrees to amend this Agreement to
incorporate appropriate mechanics for multiple Liquidity Facilities for an
individual Trust.
(b) In
the
event that the Subordination Agent, as the registered holder of any Equipment
Notes, receives a request for the giving of any notice or for its consent to
any
amendment, supplement, modification, consent or waiver under such Equipment
Notes, the Indenture pursuant to which such Equipment Notes were issued, or
the
related Participation Agreement or other related document, (i) if no Indenture
Default shall have occurred and be continuing with respect to such Indenture,
the Subordination Agent shall request directions with respect to each Series
of
such Equipment Notes from the Trustee of the Trust which holds such Equipment
Notes and shall vote or consent in accordance with the directions of such
Trustee, and
(ii)
if
any Indenture Default shall have occurred and be continuing with respect to
such
Indenture, the Subordination Agent will exercise its voting rights with respect
to such Equipment Notes as directed by the Controlling Party (subject to
Sections 4.1 and 4.4 hereof); provided that no such amendment, modification
or
waiver shall, without the consent of each affected Certificateholder and each
Liquidity Provider, reduce the amount of principal or interest payable by
Continental under any Equipment Note or change the time of payments or method
of
calculation of any amount under any Equipment Note.
(c) If
Series
B Equipment Notes or Series C Equipment Notes (or any series of Additional
Equipment Notes) issued with respect to all of the Aircraft are redeemed and
re-issued in accordance with the terms of Section 2.11(b) of each Indenture
and
Section 4(a)(vi) of the Note Purchase Agreement, such series of re-issued
Equipment Notes (the "Refinancing
Equipment Notes")
shall
be issued to a new pass through trust (a "Refinancing
Trust")
that
issues a class of pass through certificates (the "Refinancing
Certificates")
to
certificateholders (the "Refinancing
Certificateholders")
pursuant to a pass through trust agreement (a "Refinancing
Trust Agreement")
with a
trustee (a "Refinancing
Trustee").
A
Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall
be subject to all of the provisions of this Agreement in the same manner as
the
Trust, the Trustee and the Certificates of the Class corresponding to the series
of the refinanced Equipment Notes, including, the subordination of the
Refinancing Certificates to the Administration Expenses, the Liquidity
Obligations, the Class A Certificates and, if applicable, the Class B
Certificates. Such issuance of Refinancing Equipment Notes and Refinancing
Certificates and the amendment of this Agreement as provided below shall require
Ratings Confirmation and shall not materially adversely affect any of the
Trustees. This Agreement shall be amended by written agreement of Continental
and the Subordination Agent to give effect to the issuance of the Refinancing
Certificates subject to the following terms and conditions:
(i) the
Refinancing Trustee shall be added as a party to this Agreement;
(ii) the
definitions of "Certificate", "Class", "Class B Certificates" (if applicable),
"Class C Certificates" (if applicable), "Final Legal Distribution Date",
"Trust", "Trust Agreement" and "Controlling Party" (and such other applicable
definitions) shall be revised, as appropriate, to reflect such issuance (and
the
subordination of the Refinancing Certificates and the Refinancing Equipment
Notes);
(iii) the
Refinancing Certificates may have the benefit of credit support similar to
the
Liquidity Facilities and claims for fees, interest, expenses, reimbursement of
advances and other obligations arising from such credit support may rank pari
passu with similar claims in respect of the Liquidity Facilities so long as
Ratings Confirmation and the prior written consent of the Liquidity Providers
shall have been obtained;
(iv) the
Refinancing Certificates cannot be issued to Continental but may be issued
to
any of Continental's Affiliates so long as such Affiliate shall have bankruptcy
remote and special purpose provisions in its certificate of incorporation or
other organizational documents and any subsequent transfer of the Refinancing
Certificates to any Affiliate of Continental shall be similarly restricted;
and
(v) the
scheduled payment dates on the Refinancing Equipment Notes shall be on the
Regular Distribution Dates.
The
issuance of the Refinancing Certificates in compliance with all of the foregoing
terms of this Section 9.1(c) shall not require the consent of any of the
Trustees or the holders of any Class of Certificates. Each of the Liquidity
Providers hereby agrees and confirms that it shall be deemed to consent to
any
issuance and amendment in accordance with this Section 9.1(c) (subject to the
Liquidity Providers’ consent right in Section 9.1(c)(iii)) and any such issuance
and amendment shall not affect any of its respective obligations under the
Liquidity Facilities.
(d) Pursuant
to the terms of Section 2.02 of each Indenture and Section 4(a)(vi) of the
Note
Purchase Agreement, one or more additional series of Equipment Notes (the
"Additional
Equipment Notes"),
which
shall be subordinated in right of payment to the Series A Equipment Notes,
the
Series B Equipment Notes and the Series C Equipment Notes under such Indenture,
may be issued at any time and from time to time. If any series of Additional
Equipment Notes is issued under any Indenture, such series of Additional
Equipment Notes shall be issued to a new pass through trust (an "Additional
Trust")
that
issues a class of pass through certificates (the "Additional
Certificates")
to
certificateholders (the "Additional
Certificateholders")
pursuant to a pass through trust agreement (an "Additional
Trust Agreement")
with a
trustee (an "Additional
Trustee").
In
such case, this Agreement shall be amended by written agreement of Continental
and the Subordination Agent to provide for the subordination of the Additional
Certificates to the Administration Expenses, the Liquidity Obligations, the
Class A Certificates, the Class B Certificates and the Class C Certificates
and,
if applicable, any previously issued class (or classes) of Additional
Certificates (in order of their issuance) (subject to clause (iii) below).
Such
issuance and the amendment of this Agreement as provided below shall require
Ratings Confirmation and shall not materially adversely affect any of the
Trustees. This Agreement shall be amended by written agreement of Continental
and the Subordination Agent to give effect to the issuance of any Additional
Certificates subject to the following terms and conditions:
(i) the
Additional Trustee shall be added as a party to this Agreement;
(ii) the
definitions of "Certificate", "Class", "Equipment Notes", "Final Legal
Distribution Date", "Trust", "Trust Agreement" and "Controlling Party" (and
such
other applicable definitions) shall be revised, as appropriate, to reflect
the
issuance of the Additional Certificates (and the subordination
thereof);
(iii) Section
3.2 may be revised, with respect to each Class of Additional Certificates,
to
provide for the distribution of “Adjusted Interest” for such Class of Additional
Certificates (calculated in a manner substantially similar to the calculation
of
Class C Adjusted Interest) after the Class C Adjusted Interest but before
Expected Distributions on the Class A Certificates (it being understood that
the
Rating Agencies, in connection with providing a Ratings Confirmation, may
require that such class of Additional Certificates be rated);
(iv) the
Additional Certificates may have the benefit of credit support similar to the
Liquidity Facilities and claims for fees, interest, expenses, reimbursement
of
advances and
other
obligations arising from such credit support may rank pari passu with similar
claims in respect of the Liquidity Facilities so long as Ratings Confirmation
and the prior written consent of the Liquidity Providers shall have been
obtained;
(v) the
Additional Certificates cannot be issued to Continental but may be issued to
any
of Continental's Affiliates so long as such Affiliate shall have bankruptcy
remote and special purpose provisions in its certificate of incorporation or
other organizational documents and any subsequent transfer of the Additional
Certificates to any Affiliate of Continental shall be similarly restricted;
(vi) the
provisions of this Agreement governing payments with respect to Certificates
and
related notices, including Sections 2.4, 3.1 and 3.2, shall be revised to
provide for distributions on such class of the Additional Certificates after
payment of Administration Expenses, the Liquidity Obligations, the Class A
Certificates, the Class B Certificates and the Class C Certificates (and, if
applicable, any previously issued class (or classes) of Additional Certificates
(in order of their issuance)), subject to clause (iii) above; and
(vii) the
scheduled payment dates on such series of Additional Equipment Notes shall
be on
the Regular Distribution Dates.
The
issuance of the Additional Certificates in compliance with all of the foregoing
terms of this Section 9.1(d) shall not require the consent of any of the
Trustees or the holders of any Class of Certificates. Each of the Liquidity
Providers hereby agrees and confirms that it shall be deemed to consent to
any
issuance and amendment in accordance with this Section 9.1(d) (subject to the
Liquidity Providers’ consent right in Section 9.1(d)(iv)) and any such issuance
and amendment shall not affect any of its respective obligations under the
Liquidity Facilities.
SECTION
9.2. Subordination
Agent Protected.
If, in
the reasonable opinion of the institution acting as the Subordination Agent
hereunder, any document required to be executed pursuant to the terms of Section
9.1 affects any right, duty, immunity or indemnity with respect to it under
this
Agreement or any Liquidity Facility, the Subordination Agent may in its
discretion decline to execute such document.
SECTION
9.3. Effect
of Supplemental Agreements.
Upon the
execution of any amendment, consent or supplement hereto pursuant to the
provisions hereof, this Agreement shall be and be deemed to be and shall be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Agreement
of the parties hereto and beneficiaries hereof shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
agreement shall be and be deemed to be and shall be part of the terms and
conditions of this Agreement for any and all purposes. In executing or accepting
any supplemental agreement permitted by this Article IX, the Subordination
Agent
shall be entitled to receive, and shall be fully protected in relying upon,
an
opinion of counsel stating that the execution of such supplemental agreement
is
authorized or permitted by this Agreement.
SECTION
9.4. Notice
to Rating Agencies.
Promptly
upon receipt of any amendment, consent, modification, supplement or
waiver contemplated by this Article IX and prior to taking any action
required to be taken thereunder, the Subordination Agent shall send a copy
thereof to each Rating Agency.
MISCELLANEOUS
SECTION
10.1. Termination
of Intercreditor Agreement.
Following payment of Final Distributions with respect to each Class of
Certificates and the payment in full of all Liquidity Obligations to the
Liquidity Providers and provided
that
there shall then be no other amounts due to the Certificateholders, the
Trustees, the Liquidity Providers and the Subordination Agent hereunder or
under
the Trust Agreements, and that the commitment of the Liquidity Providers under
the Liquidity Facilities shall have expired or been terminated, this Agreement
and the trusts created hereby shall terminate and this Agreement shall be of
no
further force or effect. Except as aforesaid or otherwise provided, this
Agreement and the trusts created hereby shall continue in full force and effect
in accordance with the terms hereof.
SECTION
10.2. Intercreditor
Agreement for Benefit of Trustees, Liquidity Providers and Subordination
Agent.
Subject
to the second sentence of Section 10.6 and the provisions of Sections 4.4
and 9.1, nothing in this Agreement, whether express or implied, shall be
construed to give to any Person other than the Trustees, the Liquidity Providers
and the Subordination Agent any legal or equitable right, remedy or claim under
or in respect of this Agreement.
SECTION
10.3. Notices.
Unless
otherwise expressly specified or permitted by the terms hereof, all notices,
requests, demands, authorizations, directions, consents, waivers or documents
provided or permitted by this Agreement to be made, given, furnished or filed
shall be in writing, mailed by certified mail, postage prepaid, or by confirmed
telecopy and
(i) if
to the
Subordination Agent, addressed to at its office at:
WILMINGTON
TRUST COMPANY
One
Rodney Square
1100
N.
Market Street
Wilmington,
DE 19890-1605
Attention:
Corporate Capital Market Services
Telecopy:
(302) 636-4140
(ii) if
to any
Trustee, addressed to it at its office at:
WILMINGTON
TRUST COMPANY
One
Rodney Square
1100
N.
Market Street
Wilmington,
DE 19890-1605
Attention:
Corporate Capital Market Services
Telecopy:
(302) 636-4140
(iii) if
to the
Liquidity Provider, addressed to it at its office at:
RZB
FINANCE LLC
24
Grassy
Plain Street
Bethel,
CT 06801
Attention:
Mr. Chris Hoedl, Ms. Marta Miller
Telephone:
(203) 207-0115
Telecopy:
(203) 744-6474
Whenever
any notice in writing is required to be given by any Trustee, Liquidity Provider
or the Subordination Agent to any of the other of them, such notice shall be
deemed given and such requirement satisfied when such notice is received. Any
party hereto may change the address to which notices to such party will be
sent
by giving notice of such change to the other parties to this
Agreement.
SECTION
10.4. Severability.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
SECTION
10.5. No
Oral Modifications or Continuing Waivers.
No terms
or provisions of this Agreement may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party or other Person
against whom enforcement of the change, waiver, discharge or termination is
sought and any other party or other Person whose consent is required pursuant
to
this Agreement and any waiver of the terms hereof shall be effective only in
the
specific instance and for the specific purpose given.
SECTION
10.6. Successors
and Assigns.
All
covenants and agreements contained herein shall be binding upon, and inure
to
the benefit of, each of the parties hereto and the successors and assigns of
each, all as herein provided. In addition, the Continental Provisions shall
inure to the benefit of Continental and its successors and assigns, and (without
limitation of the foregoing) Continental is hereby constituted, and agreed
to
be, an express third party beneficiary of the Continental Provisions. Upon
the
occurrence of the Transfers contemplated by the Assignment and Assumption
Agreements, the Trustee of each Class shall (without any further act) be deemed
to have transferred all of its rights, title and interest in and to this
Agreement to the trustee of the Successor Trust of the same Class and,
thereafter, the trustee
of
each
Successor Trust shall be deemed to be the "Trustee" of such Successor Trust
with
the rights and obligations of a "Trustee" hereunder and under the other
Operative Agreements and each reference to a Trust of any Class herein shall
be
deemed a reference to the Successor Trust of such Class.
SECTION
10.7. Headings.
The
headings of the various Articles and Sections herein and in the table of
contents hereto are for convenience of reference only and shall not define
or
limit any of the terms or provisions hereof.
SECTION
10.8. Counterpart
Form.
This
Agreement may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same
agreement.
SECTION
10.9. Subordination.
(a) As between the Liquidity Providers (and any additional liquidity
providers in respect of any class of Refinancing Certificates or Additional
Certificates), on the one hand, and the Trustees (and any Refinancing Trustees
or Additional Trustees) and the Certificateholders (and any Refinancing
Certificateholders or Additional Certificateholders), on the other hand, and
as
among the Trustees (and any Refinancing Trustees or Additional Trustees) and
the
related Certificateholders (and any Refinancing Certificateholders or Additional
Certificateholders), this Agreement shall be a subordination agreement for
purposes of Section 510 of the United States Bankruptcy Code, as amended
from time to time.
(b) Notwithstanding
the provisions of this Agreement, if prior to the payment in full to the
Liquidity Providers of all Liquidity Obligations then due and payable, any
party
hereto shall have received any payment or distribution in respect of Equipment
Notes or any other amount under the Indentures or other Operative Agreements
which, had the subordination provisions of this Agreement been properly applied
to such payment, distribution or other amount, would not have been distributed
to such Person, then such payment, distribution or other amount shall be
received and held in trust by such Person and paid over or delivered to the
Subordination Agent for application as provided herein.
(c) If
any
Trustee, any Liquidity Provider or the Subordination Agent receives any payment
in respect of any obligations owing hereunder (or, in the case of the Liquidity
Providers, in respect of the Liquidity Obligations), which is subsequently
invalidated, declared preferential, set aside and/or required to be repaid
to a
trustee, receiver or other party, then, to the extent of such payment, such
obligations (or, in the case of the Liquidity Providers, such Liquidity
Obligations) intended to be satisfied shall be revived and continue in full
force and effect as if such payment had not been received.
(d) The
Trustees (on behalf of themselves and the holders of Certificates), the
Liquidity Providers and the Subordination Agent confirm that the payment
priorities specified in Section 3.2 shall apply in all circumstances,
notwithstanding the fact that the obligations owed to the Trustees and the
holders of Certificates are secured by certain assets and the Liquidity
Obligations may not be so secured. The Trustees expressly agree (on behalf
of
themselves and the holders of Certificates) not to assert priority over the
holders of Liquidity Obligations (except
as
specifically set forth in Section 3.2) due to their status as secured creditors
in any bankruptcy, insolvency or other legal proceeding.
(e) Each
of
the Trustees (on behalf of themselves and the holders of Certificates), the
Liquidity Providers and the Subordination Agent may take any of the following
actions without impairing its rights under this Agreement:
(i) obtain
a
Lien on any property to secure any amounts owing to it hereunder, including,
in
the case of the Liquidity Providers, the Liquidity Obligations,
(ii) obtain
the primary or secondary obligation of any other obligor with respect to any
amounts owing to it hereunder, including, in the case of the Liquidity
Providers, any of the Liquidity Obligations,
(iii) renew,
extend, increase, alter or exchange any amounts owing to it hereunder,
including, in the case of the Liquidity Providers, any of the Liquidity
Obligations, or release or compromise any obligation of any obligor with respect
thereto,
(iv) refrain
from exercising any right or remedy, or delay in exercising such right or
remedy, which it may have, or
(v) take
any
other action which might discharge a subordinated party or a surety under
applicable law;
provided,
however,
that
the taking of any such actions by any of the Trustees, the Liquidity Providers
or the Subordination Agent shall not prejudice the rights or adversely affect
the obligations of any other party under this Agreement.
SECTION
10.10. Governing
Law.
THIS
AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE.
SECTION
10.11. Submission
to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity.
(a) Each
of
the parties hereto hereby irrevocably and unconditionally:
(i) submits
for itself and its property in any legal action or proceeding relating to this
Agreement or any other Operative Agreement, or for recognition and enforcement
of any judgment in respect hereof or thereof, to the nonexclusive general
jurisdiction of the courts of the State of New York, the courts of the United
States of America 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 10.3 hereof, or at such other address of which the other
parties 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) EACH
OF
THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS 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. Each of the parties warrants and represents 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) Each
Liquidity Provider hereby waives any immunity it may have from the jurisdiction
of the courts of the United States of America or of any State and waives any
immunity any of its properties located in the United States of America 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.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized, as of the
day
and year first above written, and acknowledge that this Agreement has been
made
and delivered in the City of New York, and this Agreement has become effective
only upon such execution and delivery.
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WILMINGTON
TRUST COMPANY,
not
in its individual capacity but solely as Trustee for each of the
Trusts
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By
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Name:
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Title:
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RZB
FINANCE LLC, as Class A Liquidity Provider and Class B Liquidity
Provider
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By
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Name:
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Title:
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By
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Name:
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Title:
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WILMINGTON
TRUST COMPANY,
not
in its individual capacity except as expressly set forth herein but
solely
as Subordination Agent and truste
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By
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Name:
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Title:
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By
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Name:
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Title:
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Intercreditor
Agreement
DEPOSIT
AGREEMENT
(Class
A)
Dated
as
of April 10, 2007
between
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as
Escrow
Agent
and
CREDIT
SUISSE, NEW YORK BRANCH
as
Depositary
Page
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SECTION
1.1 Acceptance of Depositary
|
2
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SECTION
1.2 Establishment of Accounts
|
2
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SECTION
2.1 Deposits
|
2
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SECTION
2.2 Interest
|
2
|
|
SECTION
2.3 Withdrawal
|
3
|
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SECTION
2.4 Other Accounts
|
4
|
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SECTION
3. Termination
|
4
|
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SECTION
4. Payments
|
4
|
|
SECTION
5. Representation and Warranties
|
5
|
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SECTION
6. Transfer
|
6
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SECTION
7. Amendment, Etc.
|
6
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SECTION
8. Notices
|
6
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SECTION
9. Obligations Unconditional
|
7
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SECTION
10. Entire Agreement
|
7
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SECTION
11. Governing Law
|
7
|
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SECTION
12. Waiver of Jury Trial Right
|
7
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SECTION
13. Counterparts
|
7
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SECTION
14. Head Office Obligation
|
7
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SECTION
15. Rights of Receiptholders
|
7
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DEPOSIT
AGREEMENT (Class A) dated as of April 10, 2007 (as amended, modified or
supplemented from time to time, this “Agreement”)
between WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, a national banking
association, as Escrow Agent under the Escrow and Paying Agent Agreement
referred to below (in such capacity, together with its successors in such
capacity, the “Escrow
Agent”),
and
CREDIT SUISSE, NEW YORK BRANCH, a branch of Credit Suisse, organized and
existing under the laws of Switzerland and licensed under the laws of the State
of New York, as depositary bank (the “Depositary”).
W
I T
N E S S E T H
WHEREAS,
Continental Airlines, Inc. (“Continental”)
and
Wilmington Trust Company, not in its individual capacity except as otherwise
expressly provided therein, but solely as trustee (in such capacity, together
with its successors in such capacity, the “Pass
Through Trustee”)
have
entered into a Trust Supplement, dated as of April 10, 2007 (the “Trust
Supplement”)
to the
Pass Through Trust Agreement dated as of September 25, 1997 (together, as
amended, modified or supplemented from time to time in accordance with the
terms
thereof, the “Pass
Through Trust Agreement”)
relating to Continental Airlines Pass Through Trust 2007-1A-O pursuant to which
the Continental Airlines Pass Through Trust, Series 2007-1A-O Certificates
referred to therein (the “Certificates”)
are
being issued (the date of such issuance, the “Issuance
Date”);
WHEREAS,
Continental and Morgan Stanley & Co. Incorporated, Credit Suisse Securities
(USA) LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup
Global Markets Inc., UBS Securities LLC, Calyon Securities (USA) Inc. and J.P.
Morgan Securities Inc. (collectively, the “Underwriters”
and,
together with their respective transferees and assigns as registered owners
of
the Certificates, the “Investors”)
have
entered into an Underwriting Agreement dated as of March 27, 2007 pursuant
to
which the Pass Through Trustee will issue and sell the Certificates to the
Underwriters;
WHEREAS,
Continental, the Pass Through Trustee, certain other pass through trustees
and
certain other persons concurrently herewith are entering into the Note Purchase
Agreement, dated as of the date hereof (the “Note
Purchase Agreement”),
pursuant to which the Pass Through Trustee has agreed to acquire from time
to
time on or prior to the Delivery Period Termination Date (as defined in the
Note
Purchase Agreement) equipment notes (the “Equipment
Notes”)
issued
to finance the acquisition of aircraft by Continental, as owner, utilizing
a
portion of the proceeds from the sale of the Certificates (the “Net
Proceeds”);
WHEREAS,
the Escrow Agent, the Underwriters, the Pass Through Trustee and Wilmington
Trust Company, as paying agent for the Escrow Agent (in such capacity, together
with its successors in such capacity, the “Paying
Agent”)
concurrently herewith are entering into an Escrow and Paying Agent Agreement,
dated as of the date hereof (as amended, modified or supplemented from time
to
time in accordance with the terms thereof, the “Escrow
and Paying Agent Agreement”);
and
WHEREAS,
the Underwriters and the Pass Through Trustee intend that the Net Proceeds
be
held in escrow by the Escrow Agent on behalf of the Investors pursuant to the
Escrow and Paying Agent Agreement, subject to withdrawal upon request of and
proper certification by the Pass Through Trustee for the purpose of purchasing
Equipment Notes, and that pending such withdrawal the Net Proceeds be deposited
by the Escrow Agent with the Depositary pursuant to this Agreement, which
provides for the Depositary to pay interest for distribution to the Investors
and to establish accounts from which the Escrow Agent shall make withdrawals
upon request of and proper certification by the Pass Through
Trustee.
NOW,
THEREFORE, in consideration of the obligations contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION
1.1 Acceptance
of Depositary.
The
Depositary hereby agrees to act as depositary bank as provided herein and
in
connection therewith to accept all amounts to be delivered to or held by
the
Depositary pursuant to the terms of this Agreement. The Depositary further
agrees to hold, maintain and safeguard the Deposits and the Accounts (as
defined
below) during the term of this Agreement in accordance with the provisions
of
this Agreement. The Escrow Agent shall not have any right to withdraw, assign
or
otherwise transfer moneys held in the Accounts except as permitted by this
Agreement.
SECTION
1.2 Establishment
of Accounts.
The
Escrow Agent hereby instructs the Depositary, and the Depositary agrees, to
establish the separate deposit accounts listed on Schedule I hereto and to
establish such additional separate deposit accounts as may be required in
connection with the deposits contemplated by Section 2.4 hereof (each, an
“Account”
and
collectively, the “Accounts”),
each
in the name of the Escrow Agent and all on the terms and conditions set forth
in
this Agreement.
SECTION
2.1 Deposits.
The
Escrow Agent shall direct the Underwriters to deposit with the Depositary on
the
date of this Agreement (the “Deposit
Date”)
in
Federal (same day) funds by wire transfer to: Credit Suisse, New York Branch,
Reference: Continental 2007-1A, and the Depositary shall accept from the
Underwriters, on behalf of the Escrow Agent, the sum of US$756,762,000. Upon
acceptance of such sum, the Depositary shall (i) establish each of the deposits
specified in Schedule I hereto maturing on October 31, 2009 (including any
deposit made pursuant to Section 2.4 hereof, individually, a “Deposit”
and,
collectively, the “Deposits”)
and
(ii) credit each Deposit to the related Account as set forth therein. No amount
shall be deposited in any Account other than the related Deposit.
SECTION
2.2 Interest.
Each
Deposit shall bear interest from and including the date of deposit to but
excluding the date of withdrawal at the rate of 5.983% per annum (computed
on
the basis of a year of twelve 30-day months) payable to the Paying Agent on
behalf of the Escrow Agent semi-annually in arrears on each April 19 and October
19, commencing on October 19, 2007 (each, an “Interest
Payment Date”),
and
on the date of the Final Withdrawal (as defined below), or the date of the
Replacement Withdrawal (as defined below), as applicable, all in accordance
with
the terms of this Agreement (whether or not any such Deposit is withdrawn on
an
Interest Payment Date). Interest accrued on any Deposit that is withdrawn
pursuant to a Notice of Purchase Withdrawal (as defined below) shall be paid
on
the
next
Interest Payment Date, notwithstanding any intervening Final Withdrawal (as
defined below).
SECTION
2.3 Withdrawals.
(a) On
and after the date seven days after the establishment of any Deposit, the Escrow
Agent may, by providing at least one Business Day's prior notice of withdrawal
to the Depositary in the form of Exhibit A hereto (a “Notice
of Purchase Withdrawal”),
withdraw not less than the entire balance of such Deposit, except that at any
time prior to the actual withdrawal of such Deposit, the Escrow Agent or the
Pass Through Trustee may, by notice to the Depositary, cancel such withdrawal
(including on the scheduled date therefor), and thereafter such Deposit shall
continue to be maintained by the Depositary in accordance with the original
terms thereof. Following such withdrawal the balance in the related Account
shall be zero and the Depositary shall close such Account. As used herein,
“Business
Day”
means
any day, other than a Saturday, Sunday or other day on which commercial banks
are authorized or required by law to close in New York, New York, Houston,
Texas
or Wilmington, Delaware. The Depositary may waive the foregoing requirement
that
any Deposit can only be withdrawn on or after seven days after the establishment
thereof, and may instead reserve the right, upon at least 14 days' prior written
notice to Continental, the Escrow Agent and the Pass Through Trustee, to require
seven days' notice for any withdrawal.
(b) (i)
The
Escrow Agent may, by providing at least 15 days' prior notice of withdrawal
to
the Depositary in the form of Exhibit B hereto (a “Notice
of Final Withdrawal”),
withdraw the entire amount of all of the remaining Deposits together with the
payment by the Depositary of all accrued and unpaid interest on such Deposits
to
but excluding the specified date of withdrawal (a “Final
Withdrawal”),
on
such date as shall be specified in such Notice of Final Withdrawal. If a Notice
of Final Withdrawal has not been given to the Depositary on or before October
9,
2009 (provided that, if a labor strike occurs or continues at The Boeing Company
after the Issuance Date and prior to September 30, 2009 (a “Labor
Strike”),
such
date shall be extended by adding thereto the number of days that such strike
continued in effect after the Issuance Date (the “Additional
Days”))
and
there are unwithdrawn Deposits on such date, the Depositary shall pay the amount
of the Final Withdrawal to the Paying Agent on October 31, 2009 (provided that
if a Labor Strike occurs or continues, such date shall be extended by the
Additional Days).
(ii)
The
Escrow Agent may, by providing at least five Business Days' prior notice of
withdrawal to the Depositary in the form of Exhibit C hereto (a “Notice
of Replacement Withdrawal”),
withdraw the entire amount of all Deposits then held by the Depositary together
with all accrued and unpaid interest on such Deposits (including Deposits
previously withdrawn pursuant to a Notice of Purchase Withdrawal) to but
excluding the specified date of withdrawal (a “Replacement
Withdrawal”),
on
such date as shall be specified in such Notice of Replacement
Withdrawal.
(c) If
the
Depositary receives a duly completed Notice of Purchase Withdrawal, Notice
of
Final Withdrawal or Notice of Replacement Withdrawal (each, a “Withdrawal
Notice”)
complying with the provisions of this Agreement, it shall make the payments
specified therein in accordance with the provisions of this
Agreement.
SECTION
2.4 Other
Accounts.
On the
date of withdrawal of any Deposit (other than the date of the Final Withdrawal
or Replacement Withdrawal), the Escrow Agent, or the Pass Through Trustee on
behalf of the Escrow Agent, shall re-deposit with the Depositary any portion
thereof not used to acquire Equipment Notes and the Depositary shall accept
the
same for deposit hereunder. Any sums so received for deposit shall be
established as a new Deposit and credited to a new Account, all as more fully
provided in Section 2.1 hereof, and thereafter the provisions of this Agreement
shall apply thereto as fully and with the same force and effect as if such
Deposit had been established on the Deposit Date except that (i) such Deposit
may not be withdrawn prior to the date seven days after the establishment
thereof and (ii) such Deposit shall mature on October 31, 2009 (provided that
if
a Labor Strike occurs or continues, such date shall be extended by the
Additional Days) and bear interest as provided in Section 2.2. The Depositary
shall promptly give notice to the Escrow Agent of receipt of each such
re-deposit and the account number assigned thereto.
SECTION
3. Termination.
This
Agreement shall terminate on the fifth Business Day after the later of the
date
on which (i) all of the Deposits shall have been withdrawn and paid as provided
herein without any re-deposit and (ii) all accrued and unpaid interest on the
Deposits shall have been paid as provided herein, but in no event prior to
the
date on which the Depositary shall have performed in full its obligations
hereunder.
SECTION
4. Payments.
All
payments (including, without limitation, those payments made in respect of
Taxes
(as defined and provided for below)) made by the Depositary hereunder shall
be
paid in United States Dollars and immediately available funds by wire transfer
(i) in the case of accrued interest on the Deposits payable under Section 2.2
hereof or any Final Withdrawal, directly to the Paying Agent at Wilmington
Trust
Company, Wilmington, DE, ABA# 031100092, Account No. 080930-000, Attention:
Robin Henry, Telephone No.: (302) 636-6294, Reference: Continental Airlines
PTT,
Series 2007-1A, or to such other account as the Paying Agent may direct from
time to time in writing to the Depositary and the Escrow Agent and (ii) in
the
case of any withdrawal of one or more Deposits pursuant to a Notice of Purchase
Withdrawal or Notice of Replacement Withdrawal, directly to or as directed
by
the Pass Through Trustee as specified and in the manner provided in such Notice
of Purchase Withdrawal or Notice of Replacement Withdrawal. The Depositary
hereby waives any and all rights of set-off, combination of accounts, right
of
retention or similar right (whether arising under applicable law, contract
or
otherwise) it may have against the Deposits howsoever arising. All payments
on
or in respect of each Deposit shall be made free and clear of and without
reduction for or on account of any and all taxes, levies or other impositions
or
charges (collectively, “Taxes”).
However, if the Depositary or the Paying Agent (pursuant to Section 2.04 of
the
Escrow and Paying Agent Agreement) shall be required by law to deduct or
withhold any Taxes from or in respect of any sum payable hereunder, the
Depositary shall (i) make such deductions or withholding, (ii) pay the full
amount deducted or withheld (including in respect of such additional amounts)
to
the competent taxation authority and (iii) if the Taxes required to be
deducted or withheld are imposed by Switzerland or any political subdivision
thereof, pay such additional amounts as may be necessary in order that the
actual amount received by the designated recipient of such sum under this
Agreement or the Escrow and Paying Agent Agreement after such deduction or
withholding equals the sum it would have received had no such deduction or
withholding been required. If the date on which any payment due on any
Deposit
would otherwise fall on a day which is not a Business Day, such payment shall
be
made on the next succeeding Business Day, and no additional interest shall
accrue in respect of such extension.
SECTION
5. Representation
and Warranties.
The
Depositary hereby represents and warrants to Continental, the Escrow Agent,
the
Pass Through Trustee and the Paying Agent that:
(a) it
is a
banking corporation duly organized and validly existing in good standing under
the laws of its jurisdiction of organization and is duly qualified to conduct
banking business in the State of New York;
(b) it
has
full power, authority and legal right to conduct its business and operations
as
currently conducted and to enter into and perform its obligations under this
Agreement;
(c) the
execution, delivery and performance of this Agreement have been duly authorized
by all necessary corporate action on the part of it and do not require any
stockholder approval, or approval or consent of any trustee or holder of any
indebtedness or obligations of it, and this Agreement has been duly executed
and
delivered by it and constitutes its legal, valid and binding obligations
enforceable against it in accordance with the terms hereof;
(d) no
authorization, consent or approval of or other action by, and no notice to
or
filing with, any United States federal or state governmental authority or
regulatory body is required for the execution, delivery or performance by it
of
this Agreement;
(e) neither
the execution, delivery or performance by it of this Agreement, nor compliance
with the terms and provisions hereof, conflicts or will conflict with or results
or will result in a breach or violation of any of the terms, conditions or
provisions of, or will require any consent or approval under, any law,
governmental rule or regulation or the charter documents, as amended, or bylaws,
as amended, of it or any similar instrument binding on it or any order, writ,
injunction or decree of any court or governmental authority against it or by
which it or any of its properties is bound or of any indenture, mortgage or
contract or other agreement or instrument to which it is a party or by which
it
or any of its properties is bound, or constitutes or will constitute a default
thereunder or results or will result in the imposition of any lien upon any
of
its properties; and
(f) there
are
no pending or, to its knowledge, threatened actions, suits, investigations
or
proceedings (whether or not purportedly on behalf of it) against or affecting
it
or any of its property before or by any court or administrative agency which,
if
adversely determined, (i) would adversely affect the ability of it to perform
its obligations under this Agreement or (ii) would call into question or
challenge the validity of this Agreement or the enforceability hereof in
accordance with the terms hereof, nor is the Depositary in default with respect
to any order of any court, governmental authority,
arbitration
board or administrative agency so as to adversely affect its ability to perform
its obligations under this Agreement.
SECTION
6. Transfer.
Neither
party hereto shall be entitled to assign or otherwise transfer this Agreement
(or any interest herein) other than (in the case of the Escrow Agent) to a
successor escrow agent under the Escrow and Paying Agent Agreement, and any
purported assignment in violation thereof shall be void. This Agreement shall
be
binding upon the parties hereto and their respective successors and (in the
case
of the Escrow Agent) permitted assigns. Upon the occurrence of the Transfer
(as
defined below) contemplated by the Assignment and Assumption Agreement (as
defined below), the Pass Through Trustee shall (without further act) be deemed
to have transferred all of its right, title and interest in and to this
Agreement to the trustee of the Successor Trust (as defined below) and,
thereafter, the trustee of the Successor Trust shall be deemed to be the “Pass
Through Trustee” hereunder with the rights of the “Pass Through Trustee”
hereunder, and each reference herein to “Continental Airlines Pass Through Trust
2007-1A-O” shall be deemed to be a reference to “Continental Airlines Pass
Through Trust 2007-1A-S”. The Escrow Agent and the Depositary hereby acknowledge
and consent to the Transfer contemplated by the Assignment and Assumption
Agreement. For the purposes of this Section 6, “Transfer”
means
the transfer contemplated by the Assignment and Assumption Agreement;
“Assignment
and Assumption Agreement”
means
the Assignment and Assumption Agreement to be entered into between the Pass
Through Trustee and the trustee of the Successor Trust, substantially in the
form of Exhibit C to the Trust Supplement; and “Successor
Trust”
means
the Continental Airlines Pass Through Trust 2007-1A-S.
SECTION
7. Amendment,
Etc.
This
Agreement may not be amended, waived or otherwise modified except by an
instrument in writing signed by the party against whom the amendment, waiver
or
other modification is sought to be enforced and by the Pass Through
Trustee.
SECTION
8. Notices.
Unless
otherwise expressly provided herein, any notice or other communication under
this Agreement shall be in writing (including by facsimile) and shall be deemed
to be given and effective upon receipt thereof. All notices shall be sent to
(x)
in the case of the Depositary, Credit Suisse, New York Branch, 11 Madison
Avenue, New York, New York 10010, Attention: Karl Studer (Telecopier: (212)
743-1894), with copies to James Palen (Telecopier: (212) 743-2025) and Carl
Paravati (Telecopier: (212) 538-5165) at the foregoing address or (y) in the
case of the Escrow Agent, Wells Fargo Bank Northwest, National Association,
299
South Main Street, 12th Floor, Salt Lake City, UT 84111, Attention: Corporate
Trust Services (Telecopier: (801) 246-5053), in each case, with a copy to the
Pass Through Trustee, Wilmington Trust Company, 1100 North Market Street, Rodney
Square North, Wilmington, DE 19890-1605, Attention: Corporate Capital Market
Services (Telecopier: (302) 636-4140) and to Continental, Continental Airlines,
Inc., 1600 Smith Street, Dept. HQS-FN, Houston, TX 77002, Attention: Treasurer
(Telecopier: (713) 324-2447) (or at such other address as any such party may
specify from time to time in a written notice to the parties hereto). On or
prior to the execution of this Agreement, the Escrow Agent has delivered to
the
Depositary a certificate containing specimen signatures of the representatives
of the Escrow Agent who are authorized to give notices and instructions with
respect to this Agreement. The Depositary may conclusively rely on such
certificate until the Depositary receives written notice from the Escrow Agent
to the contrary.
SECTION
9. Obligations
Unconditional.
The
Depositary hereby acknowledges and agrees that its obligation to repay each
Deposit together with interest thereon as provided herein is absolute,
irrevocable and unconditional and constitutes a full recourse obligation of
the
Depositary enforceable against it to the full extent of all of its assets and
properties.
SECTION
10. Entire
Agreement.
This
Agreement (including all attachments hereto) sets forth all of the promises,
covenants, agreements, conditions and understandings between the Depositary
and
the Escrow Agent with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements and undertakings, inducements or
conditions, express or implied, oral or written.
SECTION
11. Governing
Law.
This
Agreement, and the rights and obligations of the Depositary and the Escrow
Agent
with respect to the Deposits, shall be governed by, and construed in accordance
with, the laws of the State of New York and subject to the provisions of
Regulation D of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from
time
to time.
SECTION
12. Waiver
of Jury Trial Right.
EACH OF
THE DEPOSITARY AND THE ESCROW AGENT ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT SUCH PARTY
IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.
SECTION
13. Counterparts.
This
Agreement may be executed in one or more counterparts, all of which taken
together shall constitute one instrument.
SECTION
14. Head
Office Obligation.
Credit
Suisse hereby agrees that the obligations of the Depositary hereunder are also
the obligations of Credit Suisse's Head Office in Zurich, Switzerland.
Accordingly, any beneficiary of this Agreement will be able to proceed directly
against Credit Suisse's Head Office in Zurich, Switzerland, if Credit Suisse's
New York Branch defaults in its obligation to such beneficiary under this
Agreement.
SECTION
15. Rights
of Receiptholders.
The
Depositary acknowledges that, if the Depositary shall fail to pay when due
hereunder any interest on the Deposits or the Final Withdrawal, the
“Receiptholders” (as defined in the Escrow and Paying Agent Agreement) shall
have the right to claim directly against the Depositary as provided in Section
15 of the Escrow and Paying Agent Agreement and that any such claim shall not
be
subject to defenses that the Depositary may have against the Escrow
Agent.
IN
WITNESS WHEREOF, the Escrow Agent and the Depositary have caused this Deposit
Agreement to be duly executed as of the day and year first above
written.
|
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as Escrow Agent
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
|
CREDIT
SUISSE, NEW YORK BRANCH,
as Depositary
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
Schedule
I
Schedule
of Deposits
Class
A
|
Aircraft
Type
|
Deposit
Amount
|
Account
No.
|
|
Boeing
737-824
|
$23,384,000.00
|
824A1
|
|
Boeing
737-824
|
$23,384,000.00
|
824A2
|
|
Boeing
737-824
|
$23,384,000.00
|
824A3
|
|
Boeing
737-824
|
$23,384,000.00
|
824A4
|
|
Boeing
737-824
|
$23,384,000.00
|
824A5
|
|
Boeing
737-824
|
$23,384,000.00
|
824A6
|
|
Boeing
737-824
|
$23,384,000.00
|
824A7
|
|
Boeing
737-824
|
$23,384,000.00
|
824A8
|
|
Boeing
737-824
|
$23,384,000.00
|
824A9
|
|
Boeing
737-824
|
$23,384,000.00
|
824A10
|
|
Boeing
737-824
|
$23,384,000.00
|
824A11
|
|
Boeing
737-824
|
$23,384,000.00
|
824A12
|
|
Boeing
737-924ER
|
$26,453,000.00
|
924A1
|
|
Boeing
737-924ER
|
$26,453,000.00
|
924A2
|
|
Boeing
737-924ER
|
$26,453,000.00
|
924A3
|
|
Boeing
737-924ER
|
$26,453,000.00
|
924A4
|
|
Boeing
737-924ER
|
$26,453,000.00
|
924A5
|
|
Boeing
737-924ER
|
$26,453,000.00
|
924A6
|
|
Boeing
737-924ER
|
$26,453,000.00
|
924A7
|
|
Boeing
737-924ER
|
$26,453,000.00
|
924A8
|
|
Boeing
737-924ER
|
$26,453,000.00
|
924A9
|
|
Boeing
737-924ER
|
$26,453,000.00
|
924A10
|
|
Boeing
737-924ER
|
$26,453,000.00
|
924A11
|
|
Boeing
737-924ER
|
$26,453,000.00
|
924A12
|
|
Boeing
737-924ER
|
$26,453,000.00
|
924A13
|
|
Boeing
737-924ER
|
$26,453,000.00
|
924A14
|
|
Boeing
737-924ER
|
$26,453,000.00
|
924A15
|
|
Boeing
737-924ER
|
$26,453,000.00
|
924A16
|
|
Boeing
737-924ER
|
$26,453,000.00
|
924A17
|
|
Boeing
737-924ER
|
$26,453,000.00
|
924A18
|
EXHIBIT
A
NOTICE
OF
PURCHASE WITHDRAWAL
CREDIT
SUISSE, NEW YORK BRANCH
11
Madison Avenue
New
York,
New York 10010
Attention:
Karl Studer
Telecopier:
212-743-1894
Attention:
James Palen
Telecopier:
212-743-2025
Attention:
Carl Paravati
Telecopier:
212-538-5165
Gentlemen:
Reference
is made to the Deposit Agreement (Class A) dated as of April 10, 2007 (the
“Deposit
Agreement”)
between Wells Fargo Bank Northwest, National Association, as Escrow Agent,
and
Credit Suisse, New York Branch, as Depositary (the “Depositary”).
In
accordance with Section 2.3(a) of the Deposit Agreement, the undersigned hereby
requests the withdrawal of the entire amount of the Deposit, $[_______], Account
No. ____________.
The
undersigned hereby directs the Depositary to pay the proceeds of the Deposit
to
________________, Account No. _____, Reference: _________] on _________ __,
200__, upon the telephonic request of a representative of the Pass Through
Trustee.
|
WELLS
FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION,
as Escrow Agent
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Dated:
_______ __, 200_
EXHIBIT
B
NOTICE
OF
FINAL WITHDRAWAL
CREDIT
SUISSE, NEW YORK BRANCH
11
Madison Avenue
New
York,
New York 10010
Attention:
Karl Studer
Telecopier:
212-743-1894
Attention:
James Palen
Telecopier:
212-743-2025
Attention:
Carl Paravati
Telecopier:
212-538-5165
Gentlemen:
Reference
is made to the Deposit Agreement (Class A) dated as of April 10, 2007 (the
“Deposit
Agreement”)
between Wells Fargo Bank Northwest, National Association, as Escrow Agent,
and
Credit Suisse, New York Branch, as Depositary (the “Depositary”).
In
accordance with Section 2.3(b)(i) of the Deposit Agreement, the undersigned
hereby requests the withdrawal of the entire amount of all
Deposits.
The
undersigned hereby directs the Depositary to pay the proceeds of the Deposits
and accrued interest thereon to the Paying Agent at Wilmington Trust Company,
ABA# 031100092, Account No. _____________, Reference: Continental
2007-1A.
|
WELLS
FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION,
as Escrow Agent
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Dated:
_________, 200_
EXHIBIT
C
NOTICE
OF
REPLACEMENT WITHDRAWAL
CREDIT
SUISSE, NEW YORK BRANCH
11
Madison Avenue
New
York,
New York 10010
Attention:
Karl Studer
Telecopier:
212-743-1894
Attention:
James Palen
Telecopier:
212-743-2025
Attention:
Carl Paravati
Telecopier:
212-538-5165
Reference
is made to the Deposit Agreement (Class A) dated as of April 10, 2007 (the
“Deposit
Agreement”)
between Wells Fargo Bank Northwest, National Association, as Escrow Agent,
and
Credit Suisse, New York Branch, as Depositary (the “Depositary”).
In
accordance with Section 2.3(b)(ii) of the Deposit Agreement, the undersigned
hereby requests the withdrawal of the entire amount of all
Deposits.
The
undersigned hereby directs the Depositary to pay the proceeds of the Deposits
and accrued interest thereon to [_____________________], Reference: Continental
2007-1A.
|
WELLS
FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION,
as Escrow Agent
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Dated:
_________, 200_
DEPOSIT
AGREEMENT
(Class
B)
Dated
as
of April 10, 2007
between
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as
Escrow
Agent
and
CREDIT
SUISSE, NEW YORK BRANCH
as
Depositary
Page
|
SECTION
1.1 Acceptance of Depositary
|
2
|
|
SECTION
1.2 Establishment of Accounts
|
2
|
|
SECTION
2.1 Deposits
|
2
|
|
SECTION
2.2 Interest
|
2
|
|
SECTION
2.3 Withdrawals
|
3
|
|
SECTION
2.4 Other Accounts
|
4
|
|
SECTION
3. Termination
|
4
|
|
SECTION
4. Payments
|
4
|
|
SECTION
5. Representation and Warranties
|
5
|
|
SECTION
6. Transfer
|
6
|
|
SECTION
7. Amendment, Etc.
|
6
|
|
SECTION
8. Notices
|
6
|
|
SECTION
9. Obligations Unconditional
|
7
|
|
SECTION
10. Entire Agreement
|
7
|
|
SECTION
11. Governing Law
|
7
|
|
SECTION
12. Waiver of Jury Trial Right
|
7
|
|
SECTION
13. Counterparts
|
7
|
|
SECTION
14. Head Office Obligation
|
7
|
|
SECTION
15. Rights of Receiptholders
|
7
|
DEPOSIT
AGREEMENT (Class B) dated as of April 10, 2007 (as amended, modified or
supplemented from time to time, this “Agreement”)
between WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, a national banking
association, as Escrow Agent under the Escrow and Paying Agent Agreement
referred to below (in such capacity, together with its successors in such
capacity, the “Escrow
Agent”),
and
CREDIT SUISSE, NEW YORK BRANCH, a branch of Credit Suisse, organized and
existing under the laws of Switzerland and licensed under the laws of the State
of New York, as depositary bank (the “Depositary”).
W
I T
N E S S E T H
WHEREAS,
Continental Airlines, Inc. (“Continental”)
and
Wilmington Trust Company, not in its individual capacity except as otherwise
expressly provided therein, but solely as trustee (in such capacity, together
with its successors in such capacity, the “Pass
Through Trustee”)
have
entered into a Trust Supplement, dated as of April 10, 2007 (the “Trust
Supplement”)
to the
Pass Through Trust Agreement dated as of September 25, 1997 (together, as
amended, modified or supplemented from time to time in accordance with the
terms
thereof, the “Pass
Through Trust Agreement”)
relating to Continental Airlines Pass Through Trust 2007-1B-O pursuant to which
the Continental Airlines Pass Through Trust, Series 2007-1B-O Certificates
referred to therein (the “Certificates”)
are
being issued (the date of such issuance, the “Issuance
Date”);
WHEREAS,
Continental and Morgan Stanley & Co. Incorporated, Credit Suisse Securities
(USA) LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup
Global Markets Inc., UBS Securities LLC, Calyon Securities (USA) Inc. and J.P.
Morgan Securities Inc. (collectively, the “Underwriters”
and,
together with their respective transferees and assigns as registered owners
of
the Certificates, the “Investors”)
have
entered into an Underwriting Agreement dated as of March 27, 2007 pursuant
to
which the Pass Through Trustee will issue and sell the Certificates to the
Underwriters;
WHEREAS,
Continental, the Pass Through Trustee, certain other pass through trustees
and
certain other persons concurrently herewith are entering into the Note Purchase
Agreement, dated as of the date hereof (the “Note
Purchase Agreement”),
pursuant to which the Pass Through Trustee has agreed to acquire from time
to
time on or prior to the Delivery Period Termination Date (as defined in the
Note
Purchase Agreement) equipment notes (the “Equipment
Notes”)
issued
to finance the acquisition of aircraft by Continental, as owner, utilizing
a
portion of the proceeds from the sale of the Certificates (the “Net
Proceeds”);
WHEREAS,
the Escrow Agent, the Underwriters, the Pass Through Trustee and Wilmington
Trust Company, as paying agent for the Escrow Agent (in such capacity, together
with its successors in such capacity, the “Paying
Agent”)
concurrently herewith are entering into an Escrow and Paying Agent Agreement,
dated as of the date hereof (as amended, modified or supplemented from time
to
time in accordance with the terms thereof, the “Escrow
and Paying Agent Agreement”);
and
WHEREAS,
the Underwriters and the Pass Through Trustee intend that the Net Proceeds
be
held in escrow by the Escrow Agent on behalf of the Investors pursuant to the
Escrow and Paying Agent Agreement, subject to withdrawal upon request of and
proper certification by the Pass Through Trustee for the purpose of purchasing
Equipment Notes, and that pending such withdrawal the Net Proceeds be deposited
by the Escrow Agent with the Depositary pursuant to this Agreement, which
provides for the Depositary to pay interest for distribution to the Investors
and to establish accounts from which the Escrow Agent shall make withdrawals
upon request of and proper certification by the Pass Through
Trustee.
NOW,
THEREFORE, in consideration of the obligations contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION
1.1 Acceptance
of Depositary.
The
Depositary hereby agrees to act as depositary bank as provided herein and in
connection therewith to accept all amounts to be delivered to or held by the
Depositary pursuant to the terms of this Agreement. The Depositary further
agrees to hold, maintain and safeguard the Deposits and the Accounts (as defined
below) during the term of this Agreement in accordance with the provisions
of
this Agreement. The Escrow Agent shall not have any right to withdraw, assign
or
otherwise transfer moneys held in the Accounts except as permitted by this
Agreement.
SECTION
1.2 Establishment
of Accounts.
The
Escrow Agent hereby instructs the Depositary, and the Depositary agrees, to
establish the separate deposit accounts listed on Schedule I hereto and to
establish such additional separate deposit accounts as may be required in
connection with the deposits contemplated by Section 2.4 hereof (each, an
“Account”
and
collectively, the “Accounts”),
each
in the name of the Escrow Agent and all on the terms and conditions set forth
in
this Agreement.
SECTION
2.1 Deposits.
The
Escrow Agent shall direct the Underwriters to deposit with the Depositary on
the
date of this Agreement (the “Deposit
Date”)
in
Federal (same day) funds by wire transfer to: Credit Suisse, New York Branch,
Reference: Continental 2007-1B, and the Depositary shall accept from the
Underwriters, on behalf of the Escrow Agent, the sum of US$221,850,000. Upon
acceptance of such sum, the Depositary shall (i) establish each of the deposits
specified in Schedule I hereto maturing on October 31, 2009 (including any
deposit made pursuant to Section 2.4 hereof, individually, a “Deposit”
and,
collectively, the “Deposits”)
and
(ii) credit each Deposit to the related Account as set forth therein. No amount
shall be deposited in any Account other than the related Deposit.
SECTION
2.2 Interest.
Each
Deposit shall bear interest from and including the date of deposit to but
excluding the date of withdrawal at the rate of 6.903% per annum (computed
on
the basis of a year of twelve 30-day months) payable to the Paying Agent on
behalf of the Escrow Agent semi-annually in arrears on each April 19 and October
19, commencing on October 19, 2007 (each, an “Interest
Payment Date”),
and
on the date of the Final Withdrawal (as defined below), or the date of the
Replacement Withdrawal (as defined below), as applicable, all in accordance
with
the terms of this Agreement (whether or not any such Deposit is withdrawn on
an
Interest Payment Date). Interest accrued on any Deposit that is withdrawn
pursuant to a Notice of Purchase Withdrawal (as defined below) shall be paid
on
the
next
Interest Payment Date, notwithstanding any intervening Final Withdrawal (as
defined below).
SECTION
2.3 Withdrawals.
(a) On
and after the date seven days after the establishment of any Deposit, the Escrow
Agent may, by providing at least one Business Day's prior notice of withdrawal
to the Depositary in the form of Exhibit A hereto (a “Notice
of Purchase Withdrawal”),
withdraw not less than the entire balance of such Deposit, except that at any
time prior to the actual withdrawal of such Deposit, the Escrow Agent or the
Pass Through Trustee may, by notice to the Depositary, cancel such withdrawal
(including on the scheduled date therefor), and thereafter such Deposit shall
continue to be maintained by the Depositary in accordance with the original
terms thereof. Following such withdrawal the balance in the related Account
shall be zero and the Depositary shall close such Account. As used herein,
“Business
Day”
means
any day, other than a Saturday, Sunday or other day on which commercial banks
are authorized or required by law to close in New York, New York, Houston,
Texas
or Wilmington, Delaware. The Depositary may waive the foregoing requirement
that
any Deposit can only be withdrawn on or after seven days after the establishment
thereof, and may instead reserve the right, upon at least 14 days' prior written
notice to Continental, the Escrow Agent and the Pass Through Trustee, to require
seven days' notice for any withdrawal.
(b) (i)
The
Escrow Agent may, by providing at least 15 days' prior notice of withdrawal
to
the Depositary in the form of Exhibit B hereto (a “Notice
of Final Withdrawal”),
withdraw the entire amount of all of the remaining Deposits together with the
payment by the Depositary of all accrued and unpaid interest on such Deposits
to
but excluding the specified date of withdrawal (a “Final
Withdrawal”),
on
such date as shall be specified in such Notice of Final Withdrawal. If a Notice
of Final Withdrawal has not been given to the Depositary on or before October
9,
2009 (provided that, if a labor strike occurs or continues at The Boeing Company
after the Issuance Date and prior to September 30, 2009 (a “Labor
Strike”),
such
date shall be extended by adding thereto the number of days that such strike
continued in effect after the Issuance Date (the “Additional
Days”))
and
there are unwithdrawn Deposits on such date, the Depositary shall pay the amount
of the Final Withdrawal to the Paying Agent on October 31, 2009 (provided that
if a Labor Strike occurs or continues, such date shall be extended by the
Additional Days).
(ii)
The
Escrow Agent may, by providing at least five Business Days' prior notice of
withdrawal to the Depositary in the form of Exhibit C hereto (a “Notice
of Replacement Withdrawal”),
withdraw the entire amount of all Deposits then held by the Depositary together
with all accrued and unpaid interest on such Deposits (including Deposits
previously withdrawn pursuant to a Notice of Purchase Withdrawal) to but
excluding the specified date of withdrawal (a “Replacement
Withdrawal”),
on
such date as shall be specified in such Notice of Replacement
Withdrawal.
(c) If
the
Depositary receives a duly completed Notice of Purchase Withdrawal, Notice
of
Final Withdrawal or Notice of Replacement Withdrawal (each, a “Withdrawal
Notice”)
complying with the provisions of this Agreement, it shall make the payments
specified therein in accordance with the provisions of this
Agreement.
SECTION
2.4 Other
Accounts.
On the
date of withdrawal of any Deposit (other than the date of the Final Withdrawal
or Replacement Withdrawal), the Escrow Agent, or the Pass Through Trustee on
behalf of the Escrow Agent, shall re-deposit with the Depositary any portion
thereof not used to acquire Equipment Notes and the Depositary shall accept
the
same for deposit hereunder. Any sums so received for deposit shall be
established as a new Deposit and credited to a new Account, all as more fully
provided in Section 2.1 hereof, and thereafter the provisions of this Agreement
shall apply thereto as fully and with the same force and effect as if such
Deposit had been established on the Deposit Date except that (i) such Deposit
may not be withdrawn prior to the date seven days after the establishment
thereof and (ii) such Deposit shall mature on October 31, 2009 (provided that
if
a Labor Strike occurs or continues, such date shall be extended by the
Additional Days) and bear interest as provided in Section 2.2. The Depositary
shall promptly give notice to the Escrow Agent of receipt of each such
re-deposit and the account number assigned thereto.
SECTION
3. Termination.
This
Agreement shall terminate on the fifth Business Day after the later of the
date
on which (i) all of the Deposits shall have been withdrawn and paid as provided
herein without any re-deposit and (ii) all accrued and unpaid interest on the
Deposits shall have been paid as provided herein, but in no event prior to
the
date on which the Depositary shall have performed in full its obligations
hereunder.
SECTION
4. Payments.
All
payments (including, without limitation, those payments made in respect of
Taxes
(as defined and provided for below)) made by the Depositary hereunder shall
be
paid in United States Dollars and immediately available funds by wire transfer
(i) in the case of accrued interest on the Deposits payable under Section 2.2
hereof or any Final Withdrawal, directly to the Paying Agent at Wilmington
Trust
Company, Wilmington, DE, ABA# 031100092, Account No. 080930-000, Attention:
Robin Henry, Telephone No.: (302) 636-6294, Reference: Continental Airlines
PTT,
Series 2007-1B, or to such other account as the Paying Agent may direct from
time to time in writing to the Depositary and the Escrow Agent and (ii) in
the
case of any withdrawal of one or more Deposits pursuant to a Notice of Purchase
Withdrawal or Notice of Replacement Withdrawal, directly to or as directed
by
the Pass Through Trustee as specified and in the manner provided in such Notice
of Purchase Withdrawal or Notice of Replacement Withdrawal. The Depositary
hereby waives any and all rights of set-off, combination of accounts, right
of
retention or similar right (whether arising under applicable law, contract
or
otherwise) it may have against the Deposits howsoever arising. All payments
on
or in respect of each Deposit shall be made free and clear of and without
reduction for or on account of any and all taxes, levies or other impositions
or
charges (collectively, “Taxes”).
However, if the Depositary or the Paying Agent (pursuant to Section 2.04 of
the
Escrow and Paying Agent Agreement) shall be required by law to deduct or
withhold any Taxes from or in respect of any sum payable hereunder, the
Depositary shall (i) make such deductions or withholding, (ii) pay the full
amount deducted or withheld (including in respect of such additional amounts)
to
the competent taxation authority and (iii) if the Taxes required to be
deducted or withheld are imposed by Switzerland or any political subdivision
thereof, pay such additional amounts as may be necessary in order that the
actual amount received by the designated recipient of such sum under this
Agreement or the Escrow and Paying Agent Agreement after such deduction or
withholding equals the sum it would have received had no such deduction or
withholding been required. If the date on which any payment due on any
Deposit
would otherwise fall on a day which is not a Business Day, such payment shall
be
made on the next succeeding Business Day, and no additional interest shall
accrue in respect of such extension.
SECTION
5. Representation
and Warranties.
The
Depositary hereby represents and warrants to Continental, the Escrow Agent,
the
Pass Through Trustee and the Paying Agent that:
(a) it
is a
banking corporation duly organized and validly existing in good standing under
the laws of its jurisdiction of organization and is duly qualified to conduct
banking business in the State of New York;
(b) it
has
full power, authority and legal right to conduct its business and operations
as
currently conducted and to enter into and perform its obligations under this
Agreement;
(c) the
execution, delivery and performance of this Agreement have been duly authorized
by all necessary corporate action on the part of it and do not require any
stockholder approval, or approval or consent of any trustee or holder of any
indebtedness or obligations of it, and this Agreement has been duly executed
and
delivered by it and constitutes its legal, valid and binding obligations
enforceable against it in accordance with the terms hereof;
(d) no
authorization, consent or approval of or other action by, and no notice to
or
filing with, any United States federal or state governmental authority or
regulatory body is required for the execution, delivery or performance by it
of
this Agreement;
(e) neither
the execution, delivery or performance by it of this Agreement, nor compliance
with the terms and provisions hereof, conflicts or will conflict with or results
or will result in a breach or violation of any of the terms, conditions or
provisions of, or will require any consent or approval under, any law,
governmental rule or regulation or the charter documents, as amended, or bylaws,
as amended, of it or any similar instrument binding on it or any order, writ,
injunction or decree of any court or governmental authority against it or by
which it or any of its properties is bound or of any indenture, mortgage or
contract or other agreement or instrument to which it is a party or by which
it
or any of its properties is bound, or constitutes or will constitute a default
thereunder or results or will result in the imposition of any lien upon any
of
its properties; and
(f) there
are
no pending or, to its knowledge, threatened actions, suits, investigations
or
proceedings (whether or not purportedly on behalf of it) against or affecting
it
or any of its property before or by any court or administrative agency which,
if
adversely determined, (i) would adversely affect the ability of it to perform
its obligations under this Agreement or (ii) would call into question or
challenge the validity of this Agreement or the enforceability hereof in
accordance with the terms hereof, nor is the Depositary in default with respect
to any order of any court, governmental authority,
arbitration
board or administrative agency so as to adversely affect its ability to perform
its obligations under this Agreement.
SECTION
6. Transfer.
Neither
party hereto shall be entitled to assign or otherwise transfer this Agreement
(or any interest herein) other than (in the case of the Escrow Agent) to a
successor escrow agent under the Escrow and Paying Agent Agreement, and any
purported assignment in violation thereof shall be void. This Agreement shall
be
binding upon the parties hereto and their respective successors and (in the
case
of the Escrow Agent) permitted assigns. Upon the occurrence of the Transfer
(as
defined below) contemplated by the Assignment and Assumption Agreement (as
defined below), the Pass Through Trustee shall (without further act) be deemed
to have transferred all of its right, title and interest in and to this
Agreement to the trustee of the Successor Trust (as defined below) and,
thereafter, the trustee of the Successor Trust shall be deemed to be the “Pass
Through Trustee” hereunder with the rights of the “Pass Through Trustee”
hereunder, and each reference herein to “Continental Airlines Pass Through Trust
2007-1B-O” shall be deemed to be a reference to “Continental Airlines Pass
Through Trust 2007-1B-S”. The Escrow Agent and the Depositary hereby acknowledge
and consent to the Transfer contemplated by the Assignment and Assumption
Agreement. For the purposes of this Section 6, “Transfer”
means
the transfer contemplated by the Assignment and Assumption Agreement;
“Assignment
and Assumption Agreement”
means
the Assignment and Assumption Agreement to be entered into between the Pass
Through Trustee and the trustee of the Successor Trust, substantially in the
form of Exhibit C to the Trust Supplement; and “Successor
Trust”
means
the Continental Airlines Pass Through Trust 2007-1B-S.
SECTION
7. Amendment,
Etc.
This
Agreement may not be amended, waived or otherwise modified except by an
instrument in writing signed by the party against whom the amendment, waiver
or
other modification is sought to be enforced and by the Pass Through
Trustee.
SECTION
8. Notices.
Unless
otherwise expressly provided herein, any notice or other communication under
this Agreement shall be in writing (including by facsimile) and shall be deemed
to be given and effective upon receipt thereof. All notices shall be sent to
(x)
in the case of the Depositary, Credit Suisse, New York Branch, 11 Madison
Avenue, New York, New York 10010, Attention: Karl Studer (Telecopier: (212)
743-1894), with copies to James Palen (Telecopier: (212) 743-2025) and Carl
Paravati (Telecopier: (212) 538-5165) at the foregoing address or (y) in the
case of the Escrow Agent, Wells Fargo Bank Northwest, National Association,
299
South Main Street, 12th Floor, Salt Lake City, UT 84111, Attention: Corporate
Trust Services (Telecopier: (801) 246-5053), in each case, with a copy to the
Pass Through Trustee, Wilmington Trust Company, 1100 North Market Street, Rodney
Square North, Wilmington, DE 19890-1605, Attention: Corporate Capital Market
Services (Telecopier: (302) 636-4140) and to Continental, Continental Airlines,
Inc., 1600 Smith Street, Dept. HQS-FN, Houston, TX 77002, Attention: Treasurer
(Telecopier: (713) 324-2447) (or at such other address as any such party may
specify from time to time in a written notice to the parties hereto). On or
prior to the execution of this Agreement, the Escrow Agent has delivered to
the
Depositary a certificate containing specimen signatures of the representatives
of the Escrow Agent who are authorized to give notices and instructions with
respect to this Agreement. The Depositary may conclusively rely on such
certificate until the Depositary receives written notice from the Escrow Agent
to the contrary.
SECTION
9. Obligations
Unconditional.
The
Depositary hereby acknowledges and agrees that its obligation to repay each
Deposit together with interest thereon as provided herein is absolute,
irrevocable and unconditional and constitutes a full recourse obligation of
the
Depositary enforceable against it to the full extent of all of its assets and
properties.
SECTION
10. Entire
Agreement.
This
Agreement (including all attachments hereto) sets forth all of the promises,
covenants, agreements, conditions and understandings between the Depositary
and
the Escrow Agent with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements and undertakings, inducements or
conditions, express or implied, oral or written.
SECTION
11. Governing
Law.
This
Agreement, and the rights and obligations of the Depositary and the Escrow
Agent
with respect to the Deposits, shall be governed by, and construed in accordance
with, the laws of the State of New York and subject to the provisions of
Regulation D of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from
time
to time.
SECTION
12. Waiver
of Jury Trial Right.
EACH OF
THE DEPOSITARY AND THE ESCROW AGENT ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT SUCH PARTY
IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.
SECTION
13. Counterparts.
This
Agreement may be executed in one or more counterparts, all of which taken
together shall constitute one instrument.
SECTION
14. Head
Office Obligation.
Credit
Suisse hereby agrees that the obligations of the Depositary hereunder are also
the obligations of Credit Suisse's Head Office in Zurich, Switzerland.
Accordingly, any beneficiary of this Agreement will be able to proceed directly
against Credit Suisse's Head Office in Zurich, Switzerland, if Credit Suisse's
New York Branch defaults in its obligation to such beneficiary under this
Agreement.
SECTION
15. Rights
of Receiptholders.
The
Depositary acknowledges that, if the Depositary shall fail to pay when due
hereunder any interest on the Deposits or the Final Withdrawal, the
“Receiptholders” (as defined in the Escrow and Paying Agent Agreement) shall
have the right to claim directly against the Depositary as provided in Section
15 of the Escrow and Paying Agent Agreement and that any such claim shall not
be
subject to defenses that the Depositary may have against the Escrow
Agent.
IN
WITNESS WHEREOF, the Escrow Agent and the Depositary have caused this Deposit
Agreement to be duly executed as of the day and year first above
written.
|
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as Escrow Agent
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
|
CREDIT
SUISSE, NEW YORK BRANCH,
as Depositary
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
Schedule
I
Schedule
of Deposits
Class
B
|
Aircraft
Type
|
Deposit
Amount
|
Account
No.
|
|
Boeing
737-824
|
$
6,735,000.00
|
824B1
|
|
Boeing
737-824
|
$
6,735,000.00
|
824B2
|
|
Boeing
737-824
|
$
6,735,000.00
|
824B3
|
|
Boeing
737-824
|
$
6,735,000.00
|
824B4
|
|
Boeing
737-824
|
$
6,735,000.00
|
824B5
|
|
Boeing
737-824
|
$
6,735,000.00
|
824B6
|
|
Boeing
737-824
|
$
6,735,000.00
|
824B7
|
|
Boeing
737-824
|
$
6,735,000.00
|
824B8
|
|
Boeing
737-824
|
$
6,735,000.00
|
824B9
|
|
Boeing
737-824
|
$
6,735,000.00
|
824B10
|
|
Boeing
737-824
|
$
6,735,000.00
|
824B11
|
|
Boeing
737-824
|
$
6,735,000.00
|
824B12
|
|
Boeing
737-924ER
|
$
7,835,000.00
|
924B1
|
|
Boeing
737-924ER
|
$
7,835,000.00
|
924B2
|
|
Boeing
737-924ER
|
$
7,835,000.00
|
924B3
|
|
Boeing
737-924ER
|
$
7,835,000.00
|
924B4
|
|
Boeing
737-924ER
|
$
7,835,000.00
|
924B5
|
|
Boeing
737-924ER
|
$
7,835,000.00
|
924B6
|
|
Boeing
737-924ER
|
$
7,835,000.00
|
924B7
|
|
Boeing
737-924ER
|
$
7,835,000.00
|
924B8
|
|
Boeing
737-924ER
|
$
7,835,000.00
|
924B9
|
|
Boeing
737-924ER
|
$
7,835,000.00
|
924B10
|
|
Boeing
737-924ER
|
$
7,835,000.00
|
924B11
|
|
Boeing
737-924ER
|
$
7,835,000.00
|
924B12
|
|
Boeing
737-924ER
|
$
7,835,000.00
|
924B13
|
|
Boeing
737-924ER
|
$
7,835,000.00
|
924B14
|
|
Boeing
737-924ER
|
$
7,835,000.00
|
924B15
|
|
Boeing
737-924ER
|
$
7,835,000.00
|
924B16
|
|
Boeing
737-924ER
|
$
7,835,000.00
|
924B17
|
|
Boeing
737-924ER
|
$
7,835,000.00
|
924B18
|
EXHIBIT
A
NOTICE
OF
PURCHASE WITHDRAWAL
CREDIT
SUISSE, NEW YORK BRANCH
11
Madison Avenue
New
York,
New York 10010
Attention:
Karl Studer
Telecopier:
212-743-1894
Attention:
James Palen
Telecopier:
212-743-2025
Attention:
Carl Paravati
Telecopier:
212-538-5165
Gentlemen:
Reference
is made to the Deposit Agreement (Class B) dated as of April 10, 2007 (the
“Deposit
Agreement”)
between Wells Fargo Bank Northwest, National Association, as Escrow Agent,
and
Credit Suisse, New York Branch, as Depositary (the “Depositary”).
In
accordance with Section 2.3(a) of the Deposit Agreement, the undersigned hereby
requests the withdrawal of the entire amount of the Deposit, $[_______], Account
No. ____________.
The
undersigned hereby directs the Depositary to pay the proceeds of the Deposit
to
________________, Account No. _____, Reference: _________] on _________ __,
200__, upon the telephonic request of a representative of the Pass Through
Trustee.
|
WELLS
FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION,
as Escrow Agent
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Dated:
_______ __, 200_
EXHIBIT
B
NOTICE
OF
FINAL WITHDRAWAL
CREDIT
SUISSE, NEW YORK BRANCH
11
Madison Avenue
New
York,
New York 10010
Attention:
Karl Studer
Telecopier:
212-743-1894
Attention:
James Palen
Telecopier:
212-743-2025
Attention:
Carl Paravati
Telecopier:
212-538-5165
Gentlemen:
Reference
is made to the Deposit Agreement (Class B) dated as of April 10, 2007 (the
“Deposit
Agreement”)
between Wells Fargo Bank Northwest, National Association, as Escrow Agent,
and
Credit Suisse, New York Branch, as Depositary (the “Depositary”).
In
accordance with Section 2.3(b)(i) of the Deposit Agreement, the undersigned
hereby requests the withdrawal of the entire amount of all
Deposits.
The
undersigned hereby directs the Depositary to pay the proceeds of the Deposits
and accrued interest thereon to the Paying Agent at Wilmington Trust Company,
ABA# 031100092, Account No. _____________, Reference: Continental
2007-1B.
|
WELLS
FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION,
as Escrow Agent
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Dated:
_________, 200_
EXHIBIT
C
NOTICE
OF
REPLACEMENT WITHDRAWAL
CREDIT
SUISSE, NEW YORK BRANCH
11
Madison Avenue
New
York,
New York 10010
Attention:
Karl Studer
Telecopier:
212-743-1894
Attention:
James Palen
Telecopier:
212-743-2025
Attention:
Carl Paravati
Telecopier:
212-538-5165
Reference
is made to the Deposit Agreement (Class B) dated as of April 10, 2007 (the
“Deposit
Agreement”)
between Wells Fargo Bank Northwest, National Association, as Escrow Agent,
and
Credit Suisse, New York Branch, as Depositary (the “Depositary”).
In
accordance with Section 2.3(b)(ii) of the Deposit Agreement, the undersigned
hereby requests the withdrawal of the entire amount of all
Deposits.
The
undersigned hereby directs the Depositary to pay the proceeds of the Deposits
and accrued interest thereon to [_____________________], Reference: Continental
2007-1B.
|
WELLS
FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION,
as Escrow Agent
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Dated:
_________, 200_
DEPOSIT
AGREEMENT
(Class
C)
Dated
as
of April 10, 2007
between
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as
Escrow
Agent
and
CREDIT
SUISSE, NEW YORK BRANCH
as
Depositary
TABLE
OF CONTENTS
Page
|
SECTION
1.1 Acceptance of Depositary
|
2
|
|
SECTION
1.2 Establishment of Accounts
|
2
|
|
SECTION
2.1 Deposits
|
2
|
|
SECTION
2.2 Interest
|
2
|
|
SECTION
2.3 Withdrawals
|
3
|
|
SECTION
2.4 Other Accounts
|
4
|
|
SECTION
3. Termination
|
4
|
|
SECTION
4. Payments
|
4
|
|
SECTION
5. Representation and Warranties
|
5
|
|
SECTION
6. Transfer
|
6
|
|
SECTION
7. Amendment, Etc.
|
6
|
|
SECTION
8. Notices
|
6
|
|
SECTION
9. Obligations Unconditional
|
7
|
|
SECTION
10. Entire Agreement
|
7
|
|
SECTION
11. Governing Law
|
7
|
|
SECTION
12. Waiver of Jury Trial Right
|
7
|
|
SECTION
13. Counterparts
|
7
|
|
SECTION
14. Head Office Obligation
|
7
|
|
SECTION
15. Rights of Receiptholders
|
7
|
-i-
DEPOSIT
AGREEMENT (Class C) dated as of April 10, 2007 (as amended, modified or
supplemented from time to time, this “Agreement”)
between WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, a national banking
association, as Escrow Agent under the Escrow and Paying Agent Agreement
referred to below (in such capacity, together with its successors in such
capacity, the “Escrow
Agent”),
and
CREDIT SUISSE, NEW YORK BRANCH, a branch of Credit Suisse, organized and
existing under the laws of Switzerland and licensed under the laws of the State
of New York, as depositary bank (the “Depositary”).
W
I T
N E S S E T H
WHEREAS,
Continental Airlines, Inc. (“Continental”)
and
Wilmington Trust Company, not in its individual capacity except as otherwise
expressly provided therein, but solely as trustee (in such capacity, together
with its successors in such capacity, the “Pass
Through Trustee”)
have
entered into a Trust Supplement, dated as of April 10, 2007 (the “Trust
Supplement”)
to the
Pass Through Trust Agreement dated as of September 25, 1997 (together, as
amended, modified or supplemented from time to time in accordance with the
terms
thereof, the “Pass
Through Trust Agreement”)
relating to Continental Airlines Pass Through Trust 2007-1C-O pursuant to which
the Continental Airlines Pass Through Trust, Series 2007-1C-O Certificates
referred to therein (the “Certificates”)
are
being issued (the date of such issuance, the “Issuance
Date”);
WHEREAS,
Continental and Morgan Stanley & Co. Incorporated, Credit Suisse Securities
(USA) LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup
Global Markets Inc., UBS Securities LLC, Calyon Securities (USA) Inc. and J.P.
Morgan Securities Inc. (collectively, the “Underwriters”
and,
together with their respective transferees and assigns as registered owners
of
the Certificates, the “Investors”)
have
entered into an Underwriting Agreement dated as of March 27, 2007 pursuant
to
which the Pass Through Trustee will issue and sell the Certificates to the
Underwriters;
WHEREAS,
Continental, the Pass Through Trustee, certain other pass through trustees
and
certain other persons concurrently herewith are entering into the Note Purchase
Agreement, dated as of the date hereof (the “Note
Purchase Agreement”),
pursuant to which the Pass Through Trustee has agreed to acquire from time
to
time on or prior to the Delivery Period Termination Date (as defined in the
Note
Purchase Agreement) equipment notes (the “Equipment
Notes”)
issued
to finance the acquisition of aircraft by Continental, as owner, utilizing
a
portion of the proceeds from the sale of the Certificates (the “Net
Proceeds”);
WHEREAS,
the Escrow Agent, the Underwriters, the Pass Through Trustee and Wilmington
Trust Company, as paying agent for the Escrow Agent (in such capacity, together
with its successors in such capacity, the “Paying
Agent”)
concurrently herewith are entering into an Escrow and Paying Agent Agreement,
dated as of the date hereof (as amended, modified or supplemented from time
to
time in accordance with the terms thereof, the “Escrow
and Paying Agent Agreement”);
and
WHEREAS,
the Underwriters and the Pass Through Trustee intend that the Net Proceeds
be
held in escrow by the Escrow Agent on behalf of the Investors pursuant to the
Escrow and Paying Agent Agreement, subject to withdrawal upon request of and
proper certification by the Pass Through Trustee for the purpose of purchasing
Equipment Notes, and that pending such withdrawal the Net Proceeds be deposited
by the Escrow Agent with the Depositary pursuant to this Agreement, which
provides for the Depositary to pay interest for distribution to the Investors
and to establish accounts from which the Escrow Agent shall make withdrawals
upon request of and proper certification by the Pass Through
Trustee.
NOW,
THEREFORE, in consideration of the obligations contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION
1.1 Acceptance
of Depositary.
The
Depositary hereby agrees to act as depositary bank as provided herein and in
connection therewith to accept all amounts to be delivered to or held by the
Depositary pursuant to the terms of this Agreement. The Depositary further
agrees to hold, maintain and safeguard the Deposits and the Accounts (as defined
below) during the term of this Agreement in accordance with the provisions
of
this Agreement. The Escrow Agent shall not have any right to withdraw, assign
or
otherwise transfer moneys held in the Accounts except as permitted by this
Agreement.
SECTION
1.2 Establishment
of Accounts.
The
Escrow Agent hereby instructs the Depositary, and the Depositary agrees, to
establish the separate deposit accounts listed on Schedule I hereto and to
establish such additional separate deposit accounts as may be required in
connection with the deposits contemplated by Section 2.4 hereof (each, an
“Account”
and
collectively, the “Accounts”),
each
in the name of the Escrow Agent and all on the terms and conditions set forth
in
this Agreement.
SECTION
2.1 Deposits.
The
Escrow Agent shall direct the Underwriters to deposit with the Depositary on
the
date of this Agreement (the “Deposit
Date”)
in
Federal (same day) funds by wire transfer to: Credit Suisse, New York Branch,
Reference: Continental 2007-1C, and the Depositary shall accept from the
Underwriters, on behalf of the Escrow Agent, the sum of US$168,198,000. Upon
acceptance of such sum, the Depositary shall (i) establish each of the deposits
specified in Schedule I hereto maturing on October 31, 2009 (including any
deposit made pursuant to Section 2.4 hereof, individually, a “Deposit”
and,
collectively, the “Deposits”)
and
(ii) credit each Deposit to the related Account as set forth therein. No amount
shall be deposited in any Account other than the related Deposit.
SECTION
2.2 Interest.
Each
Deposit shall bear interest from and including the date of deposit to but
excluding the date of withdrawal at the rate of 7.339% per annum (computed
on
the basis of a year of twelve 30-day months) payable to the Paying Agent on
behalf of the Escrow Agent semi-annually in arrears on each April 19 and October
19, commencing on October 19, 2007 (each, an “Interest
Payment Date”),
and
on the date of the Final Withdrawal (as defined below), or the date of the
Replacement Withdrawal (as defined below), as applicable, all in accordance
with
the terms of this Agreement (whether or not any such Deposit is withdrawn on
an
Interest Payment Date). Interest accrued on any Deposit that is withdrawn
pursuant to a Notice of Purchase Withdrawal (as defined below) shall be paid
on
the
-2-
next
Interest Payment Date, notwithstanding any intervening Final Withdrawal (as
defined below).
SECTION
2.3 Withdrawals.
(a) On
and after the date seven days after the establishment of any Deposit, the Escrow
Agent may, by providing at least one Business Day's prior notice of withdrawal
to the Depositary in the form of Exhibit A hereto (a “Notice
of Purchase Withdrawal”),
withdraw not less than the entire balance of such Deposit, except that at any
time prior to the actual withdrawal of such Deposit, the Escrow Agent or the
Pass Through Trustee may, by notice to the Depositary, cancel such withdrawal
(including on the scheduled date therefor), and thereafter such Deposit shall
continue to be maintained by the Depositary in accordance with the original
terms thereof. Following such withdrawal the balance in the related Account
shall be zero and the Depositary shall close such Account. As used herein,
“Business
Day”
means
any day, other than a Saturday, Sunday or other day on which commercial banks
are authorized or required by law to close in New York, New York, Houston,
Texas
or Wilmington, Delaware. The Depositary may waive the foregoing requirement
that
any Deposit can only be withdrawn on or after seven days after the establishment
thereof, and may instead reserve the right, upon at least 14 days' prior written
notice to Continental, the Escrow Agent and the Pass Through Trustee, to require
seven days' notice for any withdrawal.
(b) (i)
The
Escrow Agent may, by providing at least 15 days' prior notice of withdrawal
to
the Depositary in the form of Exhibit B hereto (a “Notice
of Final Withdrawal”),
withdraw the entire amount of all of the remaining Deposits together with the
payment by the Depositary of all accrued and unpaid interest on such Deposits
to
but excluding the specified date of withdrawal (a “Final
Withdrawal”),
on
such date as shall be specified in such Notice of Final Withdrawal. If a Notice
of Final Withdrawal has not been given to the Depositary on or before October
9,
2009 (provided that, if a labor strike occurs or continues at The Boeing Company
after the Issuance Date and prior to September 30, 2009 (a “Labor
Strike”),
such
date shall be extended by adding thereto the number of days that such strike
continued in effect after the Issuance Date (the “Additional
Days”))
and
there are unwithdrawn Deposits on such date, the Depositary shall pay the amount
of the Final Withdrawal to the Paying Agent on October 31, 2009 (provided that
if a Labor Strike occurs or continues, such date shall be extended by the
Additional Days).
(ii)
The
Escrow Agent may, by providing at least five Business Days' prior notice of
withdrawal to the Depositary in the form of Exhibit C hereto (a “Notice
of Replacement Withdrawal”),
withdraw the entire amount of all Deposits then held by the Depositary together
with all accrued and unpaid interest on such Deposits (including Deposits
previously withdrawn pursuant to a Notice of Purchase Withdrawal) to but
excluding the specified date of withdrawal (a “Replacement
Withdrawal”),
on
such date as shall be specified in such Notice of Replacement
Withdrawal.
(c) If
the
Depositary receives a duly completed Notice of Purchase Withdrawal, Notice
of
Final Withdrawal or Notice of Replacement Withdrawal (each, a “Withdrawal
Notice”)
complying with the provisions of this Agreement, it shall make the payments
specified therein in accordance with the provisions of this
Agreement.
-3-
SECTION
2.4 Other
Accounts.
On the
date of withdrawal of any Deposit (other than the date of the Final Withdrawal
or Replacement Withdrawal), the Escrow Agent, or the Pass Through Trustee on
behalf of the Escrow Agent, shall re-deposit with the Depositary any portion
thereof not used to acquire Equipment Notes and the Depositary shall accept
the
same for deposit hereunder. Any sums so received for deposit shall be
established as a new Deposit and credited to a new Account, all as more fully
provided in Section 2.1 hereof, and thereafter the provisions of this Agreement
shall apply thereto as fully and with the same force and effect as if such
Deposit had been established on the Deposit Date except that (i) such Deposit
may not be withdrawn prior to the date seven days after the establishment
thereof and (ii) such Deposit shall mature on October 31, 2009 (provided that
if
a Labor Strike occurs or continues, such date shall be extended by the
Additional Days) and bear interest as provided in Section 2.2. The Depositary
shall promptly give notice to the Escrow Agent of receipt of each such
re-deposit and the account number assigned thereto.
SECTION
3. Termination.
This
Agreement shall terminate on the fifth Business Day after the later of the
date
on which (i) all of the Deposits shall have been withdrawn and paid as provided
herein without any re-deposit and (ii) all accrued and unpaid interest on the
Deposits shall have been paid as provided herein, but in no event prior to
the
date on which the Depositary shall have performed in full its obligations
hereunder.
SECTION
4. Payments.
All
payments (including, without limitation, those payments made in respect of
Taxes
(as defined and provided for below)) made by the Depositary hereunder shall
be
paid in United States Dollars and immediately available funds by wire transfer
(i) in the case of accrued interest on the Deposits payable under Section 2.2
hereof or any Final Withdrawal, directly to the Paying Agent at Wilmington
Trust
Company, Wilmington, DE, ABA# 031100092, Account No. 080930-000, Attention:
Robin Henry, Telephone No.: (302) 636-6294, Reference: Continental Airlines
PTT,
Series 2007-1C, or to such other account as the Paying Agent may direct from
time to time in writing to the Depositary and the Escrow Agent and (ii) in
the
case of any withdrawal of one or more Deposits pursuant to a Notice of Purchase
Withdrawal or Notice of Replacement Withdrawal, directly to or as directed
by
the Pass Through Trustee as specified and in the manner provided in such Notice
of Purchase Withdrawal or Notice of Replacement Withdrawal. The Depositary
hereby waives any and all rights of set-off, combination of accounts, right
of
retention or similar right (whether arising under applicable law, contract
or
otherwise) it may have against the Deposits howsoever arising. All payments
on
or in respect of each Deposit shall be made free and clear of and without
reduction for or on account of any and all taxes, levies or other impositions
or
charges (collectively, “Taxes”).
However, if the Depositary or the Paying Agent (pursuant to Section 2.04 of
the
Escrow and Paying Agent Agreement) shall be required by law to deduct or
withhold any Taxes from or in respect of any sum payable hereunder, the
Depositary shall (i) make such deductions or withholding, (ii) pay the full
amount deducted or withheld (including in respect of such additional amounts)
to
the competent taxation authority and (iii) if the Taxes required to be
deducted or withheld are imposed by Switzerland or any political subdivision
thereof, pay such additional amounts as may be necessary in order that the
actual amount received by the designated recipient of such sum under this
Agreement or the Escrow and Paying Agent Agreement after such deduction or
withholding equals the sum it would have received had no such deduction or
withholding been required. If the date on which any payment due on any
-4-
Deposit
would otherwise fall on a day which is not a Business Day, such payment shall
be
made on the next succeeding Business Day, and no additional interest shall
accrue in respect of such extension.
SECTION
5. Representation
and Warranties.
The
Depositary hereby represents and warrants to Continental, the Escrow Agent,
the
Pass Through Trustee and the Paying Agent that:
(a) it
is a
banking corporation duly organized and validly existing in good standing under
the laws of its jurisdiction of organization and is duly qualified to conduct
banking business in the State of New York;
(b) it
has
full power, authority and legal right to conduct its business and operations
as
currently conducted and to enter into and perform its obligations under this
Agreement;
(c) the
execution, delivery and performance of this Agreement have been duly authorized
by all necessary corporate action on the part of it and do not require any
stockholder approval, or approval or consent of any trustee or holder of any
indebtedness or obligations of it, and this Agreement has been duly executed
and
delivered by it and constitutes its legal, valid and binding obligations
enforceable against it in accordance with the terms hereof;
(d) no
authorization, consent or approval of or other action by, and no notice to
or
filing with, any United States federal or state governmental authority or
regulatory body is required for the execution, delivery or performance by it
of
this Agreement;
(e) neither
the execution, delivery or performance by it of this Agreement, nor compliance
with the terms and provisions hereof, conflicts or will conflict with or results
or will result in a breach or violation of any of the terms, conditions or
provisions of, or will require any consent or approval under, any law,
governmental rule or regulation or the charter documents, as amended, or bylaws,
as amended, of it or any similar instrument binding on it or any order, writ,
injunction or decree of any court or governmental authority against it or by
which it or any of its properties is bound or of any indenture, mortgage or
contract or other agreement or instrument to which it is a party or by which
it
or any of its properties is bound, or constitutes or will constitute a default
thereunder or results or will result in the imposition of any lien upon any
of
its properties; and
(f) there
are
no pending or, to its knowledge, threatened actions, suits, investigations
or
proceedings (whether or not purportedly on behalf of it) against or affecting
it
or any of its property before or by any court or administrative agency which,
if
adversely determined, (i) would adversely affect the ability of it to perform
its obligations under this Agreement or (ii) would call into question or
challenge the validity of this Agreement or the enforceability hereof in
accordance with the terms hereof, nor is the Depositary in default with respect
to any order of any court, governmental authority,
-5-
arbitration
board or administrative agency so as to adversely affect its ability to perform
its obligations under this Agreement.
SECTION
6. Transfer.
Neither
party hereto shall be entitled to assign or otherwise transfer this Agreement
(or any interest herein) other than (in the case of the Escrow Agent) to a
successor escrow agent under the Escrow and Paying Agent Agreement, and any
purported assignment in violation thereof shall be void. This Agreement shall
be
binding upon the parties hereto and their respective successors and (in the
case
of the Escrow Agent) permitted assigns. Upon the occurrence of the Transfer
(as
defined below) contemplated by the Assignment and Assumption Agreement (as
defined below), the Pass Through Trustee shall (without further act) be deemed
to have transferred all of its right, title and interest in and to this
Agreement to the trustee of the Successor Trust (as defined below) and,
thereafter, the trustee of the Successor Trust shall be deemed to be the “Pass
Through Trustee” hereunder with the rights of the “Pass Through Trustee”
hereunder, and each reference herein to “Continental Airlines Pass Through Trust
2007-1C-O” shall be deemed to be a reference to “Continental Airlines Pass
Through Trust 2007-1C-S”. The Escrow Agent and the Depositary hereby acknowledge
and consent to the Transfer contemplated by the Assignment and Assumption
Agreement. For the purposes of this Section 6, “Transfer”
means
the transfer contemplated by the Assignment and Assumption Agreement;
“Assignment
and Assumption Agreement”
means
the Assignment and Assumption Agreement to be entered into between the Pass
Through Trustee and the trustee of the Successor Trust, substantially in the
form of Exhibit C to the Trust Supplement; and “Successor
Trust”
means
the Continental Airlines Pass Through Trust 2007-1C-S.
SECTION
7. Amendment,
Etc.
This
Agreement may not be amended, waived or otherwise modified except by an
instrument in writing signed by the party against whom the amendment, waiver
or
other modification is sought to be enforced and by the Pass Through
Trustee.
SECTION
8. Notices.
Unless
otherwise expressly provided herein, any notice or other communication under
this Agreement shall be in writing (including by facsimile) and shall be deemed
to be given and effective upon receipt thereof. All notices shall be sent to
(x)
in the case of the Depositary, Credit Suisse, New York Branch, 11 Madison
Avenue, New York, New York 10010, Attention: Karl Studer (Telecopier: (212)
743-1894), with copies to James Palen (Telecopier: (212) 743-2025) and Carl
Paravati (Telecopier: (212) 538-5165) at the foregoing address or (y) in the
case of the Escrow Agent, Wells Fargo Bank Northwest, National Association,
299
South Main Street, 12th Floor, Salt Lake City, UT 84111, Attention: Corporate
Trust Services (Telecopier: (801) 246-5053), in each case, with a copy to the
Pass Through Trustee, Wilmington Trust Company, 1100 North Market Street, Rodney
Square North, Wilmington, DE 19890-1605, Attention: Corporate Capital Market
Services (Telecopier: (302) 636-4140) and to Continental, Continental Airlines,
Inc., 1600 Smith Street, Dept. HQS-FN, Houston, TX 77002, Attention: Treasurer
(Telecopier: (713) 324-2447) (or at such other address as any such party may
specify from time to time in a written notice to the parties hereto). On or
prior to the execution of this Agreement, the Escrow Agent has delivered to
the
Depositary a certificate containing specimen signatures of the representatives
of the Escrow Agent who are authorized to give notices and instructions with
respect to this Agreement. The Depositary may conclusively rely on such
certificate until the Depositary receives written notice from the Escrow Agent
to the contrary.
-6-
SECTION
9. Obligations
Unconditional.
The
Depositary hereby acknowledges and agrees that its obligation to repay each
Deposit together with interest thereon as provided herein is absolute,
irrevocable and unconditional and constitutes a full recourse obligation of
the
Depositary enforceable against it to the full extent of all of its assets and
properties.
SECTION
10. Entire
Agreement.
This
Agreement (including all attachments hereto) sets forth all of the promises,
covenants, agreements, conditions and understandings between the Depositary
and
the Escrow Agent with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements and undertakings, inducements or
conditions, express or implied, oral or written.
SECTION
11. Governing
Law.
This
Agreement, and the rights and obligations of the Depositary and the Escrow
Agent
with respect to the Deposits, shall be governed by, and construed in accordance
with, the laws of the State of New York and subject to the provisions of
Regulation D of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from
time
to time.
SECTION
12. Waiver
of Jury Trial Right.
EACH OF
THE DEPOSITARY AND THE ESCROW AGENT ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT SUCH PARTY
IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.
SECTION
13. Counterparts.
This
Agreement may be executed in one or more counterparts, all of which taken
together shall constitute one instrument.
SECTION
14. Head
Office Obligation.
Credit
Suisse hereby agrees that the obligations of the Depositary hereunder are also
the obligations of Credit Suisse's Head Office in Zurich, Switzerland.
Accordingly, any beneficiary of this Agreement will be able to proceed directly
against Credit Suisse's Head Office in Zurich, Switzerland, if Credit Suisse's
New York Branch defaults in its obligation to such beneficiary under this
Agreement.
SECTION
15. Rights
of Receiptholders.
The
Depositary acknowledges that, if the Depositary shall fail to pay when due
hereunder any interest on the Deposits or the Final Withdrawal, the
“Receiptholders” (as defined in the Escrow and Paying Agent Agreement) shall
have the right to claim directly against the Depositary as provided in Section
15 of the Escrow and Paying Agent Agreement and that any such claim shall not
be
subject to defenses that the Depositary may have against the Escrow
Agent.
-7-
IN
WITNESS WHEREOF, the Escrow Agent and the Depositary have caused this Deposit
Agreement to be duly executed as of the day and year first above
written.
|
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as Escrow Agent
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
|
CREDIT
SUISSE, NEW YORK BRANCH,
as Depositary
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
Deposit
Agreement (Class C)
Schedule
I
Schedule
of Deposits
Class
C
|
Aircraft
Type
|
Deposit
Amount
|
Account
No.
|
|
Boeing
737-824
|
$
5,177,000.00
|
824C1
|
|
Boeing
737-824
|
$
5,177,000.00
|
824C2
|
|
Boeing
737-824
|
$
5,177,000.00
|
824C3
|
|
Boeing
737-824
|
$
5,177,000.00
|
824C4
|
|
Boeing
737-824
|
$
5,177,000.00
|
824C5
|
|
Boeing
737-824
|
$
5,177,000.00
|
824C6
|
|
Boeing
737-824
|
$
5,177,000.00
|
824C7
|
|
Boeing
737-824
|
$
5,177,000.00
|
824C8
|
|
Boeing
737-824
|
$
5,177,000.00
|
824C9
|
|
Boeing
737-824
|
$
5,177,000.00
|
824C10
|
|
Boeing
737-824
|
$
5,177,000.00
|
824C11
|
|
Boeing
737-824
|
$
5,177,000.00
|
824C12
|
|
Boeing
737-924ER
|
$
5,893,000.00
|
924C1
|
|
Boeing
737-924ER
|
$
5,893,000.00
|
924C2
|
|
Boeing
737-924ER
|
$
5,893,000.00
|
924C3
|
|
Boeing
737-924ER
|
$
5,893,000.00
|
924C4
|
|
Boeing
737-924ER
|
$
5,893,000.00
|
924C5
|
|
Boeing
737-924ER
|
$
5,893,000.00
|
924C6
|
|
Boeing
737-924ER
|
$
5,893,000.00
|
924C7
|
|
Boeing
737-924ER
|
$
5,893,000.00
|
924C8
|
|
Boeing
737-924ER
|
$
5,893,000.00
|
924C9
|
|
Boeing
737-924ER
|
$
5,893,000.00
|
924C10
|
|
Boeing
737-924ER
|
$
5,893,000.00
|
924C11
|
|
Boeing
737-924ER
|
$
5,893,000.00
|
924C12
|
|
Boeing
737-924ER
|
$
5,893,000.00
|
924C13
|
|
Boeing
737-924ER
|
$
5,893,000.00
|
924C14
|
|
Boeing
737-924ER
|
$
5,893,000.00
|
924C15
|
|
Boeing
737-924ER
|
$
5,893,000.00
|
924C16
|
|
Boeing
737-924ER
|
$
5,893,000.00
|
924C17
|
|
Boeing
737-924ER
|
$
5,893,000.00
|
924C18
|
EXHIBIT
A
NOTICE
OF
PURCHASE WITHDRAWAL
CREDIT
SUISSE, NEW YORK BRANCH
11
Madison Avenue
New
York,
New York 10010
Attention:
Karl Studer
Telecopier:
212-743-1894
Attention:
James Palen
Telecopier:
212-743-2025
Attention:
Carl Paravati
Telecopier:
212-538-5165
Gentlemen:
Reference
is made to the Deposit Agreement (Class C) dated as of April 10, 2007 (the
“Deposit
Agreement”)
between Wells Fargo Bank Northwest, National Association, as Escrow Agent,
and
Credit Suisse, New York Branch, as Depositary (the “Depositary”).
In
accordance with Section 2.3(a) of the Deposit Agreement, the undersigned hereby
requests the withdrawal of the entire amount of the Deposit, $[_______], Account
No. ____________.
The
undersigned hereby directs the Depositary to pay the proceeds of the Deposit
to
________________, Account No. _____, Reference: _________] on _________ __,
200__, upon the telephonic request of a representative of the Pass Through
Trustee.
|
WELLS
FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION,
as Escrow Agent
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Dated:
_______ __, 200_
EXHIBIT
B
NOTICE
OF
FINAL WITHDRAWAL
CREDIT
SUISSE, NEW YORK BRANCH
11
Madison Avenue
New
York,
New York 10010
Attention:
Karl Studer
Telecopier:
212-743-1894
Attention:
James Palen
Telecopier:
212-743-2025
Attention:
Carl Paravati
Telecopier:
212-538-5165
Gentlemen:
Reference
is made to the Deposit Agreement (Class C) dated as of April 10, 2007 (the
“Deposit
Agreement”)
between Wells Fargo Bank Northwest, National Association, as Escrow Agent,
and
Credit Suisse, New York Branch, as Depositary (the “Depositary”).
In
accordance with Section 2.3(b)(i) of the Deposit Agreement, the undersigned
hereby requests the withdrawal of the entire amount of all
Deposits.
The
undersigned hereby directs the Depositary to pay the proceeds of the Deposits
and accrued interest thereon to the Paying Agent at Wilmington Trust Company,
ABA# 031100092, Account No. _____________, Reference: Continental
2007-1C.
|
WELLS
FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION,
as Escrow Agent
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Dated:
_________, 200_
EXHIBIT
C
NOTICE
OF
REPLACEMENT WITHDRAWAL
CREDIT
SUISSE, NEW YORK BRANCH
11
Madison Avenue
New
York,
New York 10010
Attention:
Karl Studer
Telecopier:
212-743-1894
Attention:
James Palen
Telecopier:
212-743-2025
Attention:
Carl Paravati
Telecopier:
212-538-5165
Reference
is made to the Deposit Agreement (Class C) dated as of April 10, 2007 (the
“Deposit
Agreement”)
between Wells Fargo Bank Northwest, National Association, as Escrow Agent,
and
Credit Suisse, New York Branch, as Depositary (the “Depositary”).
In
accordance with Section 2.3(b)(ii) of the Deposit Agreement, the undersigned
hereby requests the withdrawal of the entire amount of all
Deposits.
The
undersigned hereby directs the Depositary to pay the proceeds of the Deposits
and accrued interest thereon to [_____________________], Reference: Continental
2007-1C.
|
WELLS
FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION,
as Escrow Agent
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Dated:
_________, 200_
ESCROW
AND PAYING AGENT AGREEMENT
(Class
A)
Dated
as
of April 10, 2007
among
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as
Escrow
Agent
MORGAN
STANLEY & CO. INCORPORATED,
CREDIT
SUISSE SECURITIES (USA) LLC,
MERRILL
LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
CITIGROUP
GLOBAL MARKETS INC.,
UBS
SECURITIES LLC,
CALYON
SECURITIES (USA) INC.
and
J.P.
MORGAN SECURITIES INC.
as
Underwriters
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity,
but
solely as Pass Through Trustee
for
and
on behalf of
Continental
Airlines Pass Through Trust 2007-1A-O
as
Pass
Through Trustee
and
WILMINGTON
TRUST COMPANY
as
Paying
Agent
cv
| Exhibit A |
| Exhibit B |
ESCROW
AND PAYING AGENT AGREEMENT (Class A) dated as of April 10, 2007 (as amended,
modified or supplemented from time to time, this “Agreement”)
among
WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, a national banking
association, as Escrow Agent (in such capacity, together with its successors
in
such capacity, the “Escrow
Agent”);
MORGAN STANLEY & CO. INCORPORATED, CREDIT SUISSE SECURITIES (USA) LLC,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, CITIGROUP GLOBAL MARKETS
INC., UBS SECURITIES LLC, CALYON SECURITIES (USA) INC. and J.P. MORGAN
SECURITIES INC. as Underwriters of the Certificates referred to below (the
“Underwriters”
and
together with their respective transferees and assigns as registered owners
of
the Certificates, the “Investors”)
under
the Underwriting Agreement referred to below; WILMINGTON TRUST COMPANY, a
Delaware banking corporation, not in its individual capacity except as otherwise
expressly provided herein, but solely as trustee (in such capacity, together
with its successors in such capacity, the “Pass
Through Trustee”)
under
the Pass Through Trust Agreement referred to below; and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as paying agent hereunder (in such
capacity, together with its successors in such capacity, the “Paying
Agent”).
W
I T
N E S S E T H
WHEREAS,
Continental Airlines, Inc. (“Continental”)
and
the Pass Through Trustee have entered into a Trust Supplement, dated as of
April
10, 2007 (the “Trust
Supplement”),
to
the Pass Through Trust Agreement, dated as of September 25, 1997 (together,
as
amended, modified or supplemented from time to time in accordance with the
terms
thereof, the “Pass
Through Trust Agreement”)
relating to Continental Airlines Pass Through Trust 2007-1A-O (the “Pass
Through Trust”)
pursuant to which the Continental Airlines Pass Through Trust, Series 2007-1A-O
Certificates referred to therein (the “Certificates”)
are
being issued (the date of such issuance, the “Issuance
Date”);
WHEREAS,
Continental and the Underwriters have entered into an Underwriting Agreement
dated as of March 27, 2007 (as amended, modified or supplemented from time
to
time in accordance with the terms thereof, the “Underwriting
Agreement”)
pursuant to which the Pass Through Trustee will issue and sell the Certificates
to the Underwriters;
WHEREAS,
Continental, the Pass Through Trustee, certain other pass through trustees
and
certain other persons concurrently herewith are entering into the Note Purchase
Agreement, dated as of the date hereof (the “Note
Purchase Agreement”),
pursuant to which the Pass Through Trustee has agreed to acquire from time
to
time on or prior to the Delivery Period Termination Date (as defined in the
Note
Purchase Agreement) equipment notes (the “Equipment
Notes”)
issued
to finance the acquisition of aircraft by Continental, as owner, utilizing
a
portion of the proceeds from the sale of the Certificates (the “Net
Proceeds”);
WHEREAS,
the Underwriters and the Pass Through Trustee intend that the Net Proceeds
be
held in escrow by the Escrow Agent on behalf of the Investors, subject to
withdrawal upon request by the Pass Through Trustee and satisfaction of the
conditions set forth in the Note Purchase Agreement for the purpose of
purchasing Equipment Notes, and that pending such withdrawal the Net Proceeds
be
deposited on behalf of the Escrow Agent with Credit Suisse, New York Branch,
as
Depositary (the “Depositary”,
which
shall also be deemed to
refer
to
any Replacement Depositary (as defined in the Note Purchase Agreement) from
and
after the date on which the Deposits are transferred to such Replacement
Depositary) under the Deposit Agreement, dated as of the date hereof between
the
Depositary and the Escrow Agent relating to the Pass Through Trust (as amended,
modified, supplemented or replaced from time to time in accordance with the
terms thereof, the “Deposit
Agreement”,
which
shall also be deemed to refer to any Replacement Deposit Agreement (as defined
in the Note Purchase Agreement) to which the Escrow Agent becomes a party
pursuant to Section 1.02(a) hereof from and after the transfer of the Deposits
from the Depositary to the Replacement Depositary) pursuant to which, among
other things, the Depositary will pay interest for distribution to the Investors
and establish accounts from which the Escrow Agent shall make withdrawals upon
request of and proper certification by the Pass Through Trustee;
WHEREAS,
the Escrow Agent wishes to appoint the Paying Agent to pay amounts required
to
be distributed to the Investors in accordance with this Agreement;
and
WHEREAS,
capitalized terms used but not defined herein shall have the meanings ascribed
to such terms in the Pass Through Trust Agreement.
NOW,
THEREFORE, in consideration of the obligations contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION
1. Escrow
Agent.
Section
1.01. Appointment
of Escrow Agent.
Each of
the Underwriters, for and on behalf of each of the Investors, hereby irrevocably
appoints, authorizes and directs the Escrow Agent to act as escrow agent and
fiduciary hereunder and under the Deposit Agreement for such specific purposes
and with such powers as are specifically delegated to the Escrow Agent by the
terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Any and all money received and held by the Escrow Agent
under this Agreement or the Deposit Agreement shall be held in escrow by the
Escrow Agent in accordance with the terms of this Agreement. This Agreement
is
irrevocable and the Investors' rights with respect to any monies received and
held in escrow by the Escrow Agent under this Agreement or the Deposit Agreement
shall only be as provided under the terms and conditions of this Agreement
and
the Deposit Agreement. The Escrow Agent (which term as used in this sentence
shall include reference to its affiliates and its own and its affiliates'
officers, directors, employees and agents): (a) shall have no duties or
responsibilities except those expressly set forth in this Agreement; (b) shall
not be responsible to the Pass Through Trustee or the Investors for any
recitals, statements, representations or warranties of any person other then
itself contained in this Agreement or the Deposit Agreement or for the failure
by the Pass Through Trustee, the Investors or any other person or entity (other
than the Escrow Agent) to perform any of its obligations hereunder (whether
or
not the Escrow Agent shall have any knowledge thereof); and (c) shall not be
responsible for any action taken or omitted to be taken by it hereunder or
provided for herein or in connection herewith, except for its own willful
misconduct or gross negligence (or simple negligence in connection with the
handling of funds).
Section
1.02. Instruction;
Etc.
The
Underwriters, for and on behalf of each of the Investors, hereby irrevocably
instruct the Escrow Agent, and the Escrow Agent agrees:
(a) to
enter
into the Deposit Agreement, and, if requested by the Company pursuant to Section
4(a)(vii) of the Note Purchase Agreement, to enter into a Replacement Deposit
Agreement with the Replacement Depositary specified by the Company;
(b) to
appoint the Paying Agent as provided in this Agreement;
(c) upon
receipt at any time and from time to time prior to the Termination Date (as
defined below) of a certificate substantially in the form of Exhibit B hereto
(a
“Withdrawal
Certificate”)
executed by the Pass Through Trustee, together with an attached Notice of
Purchase Withdrawal in substantially the form of Exhibit A to the Deposit
Agreement duly completed by the Pass Through Trustee (the “Applicable
Notice of Purchase Withdrawal”
and
the
withdrawal to which it relates, a “Purchase
Withdrawal”),
immediately to execute the Applicable Notice of Purchase Withdrawal as Escrow
Agent and transmit it to the Depositary by facsimile transmission in accordance
with the Deposit Agreement; provided
that,
upon the request of the Pass Through Trustee after such transmission, the Escrow
Agent shall cancel such Applicable Notice of Purchase Withdrawal;
(d) upon
receipt of a Withdrawal Certificate executed by the Pass Through Trustee,
together with an attached Notice of Replacement Withdrawal in substantially
the
form of Exhibit C to the Deposit Agreement duly completed by the Pass Through
Trustee, to:
(X) give
such
Notice of Replacement Withdrawal to the Depositary requesting a withdrawal,
on
the date specified in such notice, which shall not be less than five Business
Days after such notice is given (the “Replacement
Withdrawal Date”),
of
all Deposits then held by the Depositary together with all accrued and unpaid
interest on such Deposits to but excluding the Replacement Withdrawal Date;
and
(Y) direct
the Depositary to transfer such Deposits and accrued interest on behalf of
the
Escrow Agent to the Replacement Depositary in accordance with the Replacement
Deposit Agreement; and
(e) if
there
are any undrawn Deposits (as defined in the Deposit Agreement) on the
“Termination
Date”,
which
shall mean the earlier of (i) September 30, 2009 (provided that, if a labor
strike occurs or continues at The Boeing Company after the Issuance Date and
prior to September 30, 2009 (a “Labor
Strike”),
such
date shall be extended by adding thereto the number of days that such strike
continued in effect after the Issuance Date (the “Additional
Days”)
and
(ii) the day on which the Escrow Agent receives notice from the Pass Through
Trustee that the Pass Through Trustee's obligation to purchase Equipment Notes
under the Note Purchase Agreement has terminated, to immediately give notice
to
the Depositary (with a copy to the Paying Agent) substantially in the form
of
Exhibit B to the Deposit Agreement requesting a withdrawal of all of
the
remaining
Deposits, together with accrued and unpaid interest on such Deposits to the
date
of withdrawal, on the 25th
day
after the date that such notice of withdrawal is given to the Depositary (or,
if
not a Business Day, on the next succeeding Business Day) (a “Final
Withdrawal”),
provided
that if
the day scheduled for the Final Withdrawal in accordance with the foregoing
is
within 10 days before or after a Regular Distribution Date, then the Escrow
Agent shall request that such requested Final Withdrawal be made on such Regular
Distribution Date (the date of such requested withdrawal, the “Final
Withdrawal Date”).
If
for
any reason the Escrow Agent shall have failed to give the Final Withdrawal
Notice to the Depositary on or before October 9, 2009 (provided
that if
a Labor Strike occurs or continues, such date shall be extended by the
Additional Days), and there are unwithdrawn Deposits on such date, the Final
Withdrawal Date shall be deemed to be October 31, 2009 (provided
that if
a Labor Strike occurs or continues, such date shall be extended by the
Additional Days).
Section
1.03. Initial
Escrow Amount; Issuance of Escrow Receipts.
The
Escrow Agent hereby directs the Underwriters to, and the Underwriters hereby
acknowledge that on the date hereof they shall, irrevocably deliver to the
Depositary on behalf of the Escrow Agent, an amount in U.S. dollars
(“Dollars”)
and
immediately available funds equal to $756,762,000 for deposit on behalf of
the
Escrow Agent with the Depositary in accordance with Section 2.1 of the Deposit
Agreement. The Underwriters hereby instruct the Escrow Agent, upon receipt
of
such sum from the Underwriters, to confirm such receipt by executing and
delivering to the Pass Through Trustee an Escrow Receipt in the form of Exhibit
A hereto (an “Escrow
Receipt”),
(a)
to be affixed by the Pass Through Trustee to each Certificate and (b) to
evidence the same percentage interest (the “Escrow
Interest”)
in the
Account Amounts (as defined below) as the Fractional Undivided Interest in
the
Pass Through Trust evidenced by the Certificate to which it is to be affixed.
The Escrow Agent shall provide to the Pass Through Trustee for attachment to
each Certificate newly issued under and in accordance with the Pass Through
Trust Agreement an executed Escrow Receipt as the Pass Through Trustee may
from
time to time request of the Escrow Agent. Each Escrow Receipt shall be
registered by the Escrow Agent in a register (the “Register”)
maintained by the Escrow Agent in the name of the same holder that is the holder
of the Certificate to which it is attached and may not thereafter be detached
from such Certificate to which it is to be affixed prior to the distribution
of
the Final Withdrawal (the “Final
Distribution”).
After
the Final Distribution, no additional Escrow Receipts shall be issued and the
Pass Through Trustee shall request the return to the Escrow Agent for
cancellation of all outstanding Escrow Receipts.
Section
1.04. Payments
to Receiptholders.
All
payments and distributions made to holders of an Escrow Receipt (collectively
“Receiptholders”)
in
respect of the Escrow Receipt shall be made only from amounts deposited in
the
Paying Agent Account (as defined below) (“Account
Amounts”).
Each
Receiptholder, by its acceptance of an Escrow Receipt, agrees that (a) it will
look solely to the Account Amounts for any payment or distribution due to such
Receiptholder pursuant to the terms of the Escrow Receipt and this Agreement
(subject to Section 15 hereof) and (b) it will have no recourse to Continental,
the Pass Through Trustee, the Paying Agent or the Escrow Agent, except as
expressly provided herein or in the Pass Through Trust Agreement. No
Receiptholder shall have any right to vote or in any manner otherwise control
the operation and management of the Paying Agent Account or the obligations
of
the
parties
hereto, nor shall anything set forth herein, or contained in the terms of the
Escrow Receipt, be construed so as to constitute the Receiptholders from time
to
time as partners or members of an association.
Section
1.05. Mutilated,
Destroyed, Lost or Stolen Escrow Receipt.
If (a)
any mutilated Escrow Receipt is surrendered to the Escrow Agent or the Escrow
Agent receives evidence to its satisfaction of the destruction, loss or theft
of
any Escrow Receipt and (b) there is delivered to the Escrow Agent and the
Pass Through Trustee such security, indemnity or bond, as may be required by
them to hold each of them harmless, then, absent notice to the Escrow Agent
or
the Pass Through Trustee that such destroyed, lost or stolen Escrow Receipt
has
been acquired by a bona fide purchaser, and provided that the requirements
of
Section 8-405 of the Uniform Commercial Code in effect in any applicable
jurisdiction are met, the Escrow Agent shall execute, authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Escrow Receipt, a new Escrow Receipt or Escrow Receipts and of like Escrow
Interest in the Account Amounts and bearing a number not contemporaneously
outstanding.
In
connection with the issuance of any new Escrow Receipt under this Section 1.05,
the Escrow Agent may require the payment of a sum sufficient to cover any tax
or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Pass Through Trustee and the
Escrow Agent) connected therewith.
Any
duplicate Escrow Receipt issued pursuant to this Section 1.05 shall constitute
conclusive evidence of the appropriate Escrow Interest in the Account Amounts,
as if originally issued, whether or not the lost, stolen or destroyed Escrow
Receipt shall be found at any time.
The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Escrow Receipts.
Section
1.06. Additional
Escrow Amounts.
On the
date of any Purchase Withdrawal, the Pass Through Trustee may re-deposit with
the Depositary some or all of the amounts so withdrawn in accordance with
Section 2.5 of the Deposit Agreement.
Section
1.07. Resignation
or Removal of Escrow Agent.
Subject
to the appointment and acceptance of a successor Escrow Agent as provided below,
the Escrow Agent may resign at any time by giving 30 days' prior written notice
thereof to the Investors, but may not otherwise be removed except for cause
by
the written consent of the Investors with respect to Investors representing
Escrow Interests aggregating not less than a majority in interest in the Account
Amounts (an “Action
of Investors”).
Upon
any such resignation or removal, the Investors, by an Action of Investors,
shall
have the right to appoint a successor Escrow Agent. If no successor Escrow
Agent
shall have been so appointed and shall have accepted such appointment within
30
days after the retiring Escrow Agent's giving of notice of resignation or the
removal of the retiring Escrow Agent, then the retiring Escrow Agent may appoint
a successor Escrow Agent. Any successor Escrow Agent shall be a bank which
has
an office in the United States with a combined capital and surplus of at least
$100,000,000. Upon the acceptance of any appointment as Escrow Agent hereunder
by a successor Escrow Agent, such successor Escrow Agent shall enter into such
documents as the Pass Through Trustee shall
require
and shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Escrow Agent, and the retiring Escrow
Agent shall be discharged from its duties and obligations hereunder. No
resignation or removal of the Escrow Agent shall be effective unless a written
confirmation shall have been obtained from each of Moody's Investors Service,
Inc. and Standard & Poor's Ratings Services, a division of The McGraw-Hill
Companies, Inc., that the replacement of the Escrow Agent with the successor
Escrow Agent will not result in (a) a reduction of the rating for the
Certificates below the then current rating for the Certificates or (b) a
withdrawal or suspension of the rating of the Certificates.
Section
1.08. Persons
Deemed Owners.
Prior to
due presentment of a Certificate for registration of transfer, the Escrow Agent
and the Paying Agent may treat the Person in whose name any Escrow Receipt
is
registered (as of the day of determination) as the owner of such Escrow Receipt
for the purpose of receiving distributions pursuant to this Agreement and for
all other purposes whatsoever, and neither the Escrow Agent nor the Paying
Agent
shall be affected by any notice to the contrary.
Section
1.09. Further
Assurances.
The
Escrow Agent agrees to take such actions, and execute such other documents,
as
may be reasonably requested by the Pass Through Trustee in order to effectuate
the purposes of this Agreement and the performance by the Escrow Agent of its
obligations hereunder.
SECTION
2. Paying
Agent.
Section
2.01. Appointment
of Paying Agent.
The
Escrow Agent hereby irrevocably appoints and authorizes the Paying Agent to
act
as its paying agent hereunder, for the benefit of the Investors, for such
specific purposes and with such powers as are specifically delegated to the
Paying Agent by the terms of this Agreement, together with such other powers
as
are reasonably incidental thereto. Any and all money received and held by the
Paying Agent under this Agreement or the Deposit Agreement shall be held in
the
Paying Agent Account for the benefit of the Investors. The Paying Agent (which
term as used in this sentence shall include reference to its affiliates and
its
own and its affiliates' officers, directors, employees and agents): (a) shall
have no duties or responsibilities except those expressly set forth in this
Agreement, and shall not by reason of this Agreement be a trustee for the Escrow
Agent; (b) shall not be responsible to the Escrow Agent for any recitals,
statements, representations or warranties of any person other then itself
contained in this Agreement or for the failure by the Escrow Agent or any other
person or entity (other than the Paying Agent) to perform any of its obligations
hereunder (whether or not the Paying Agent shall have any knowledge thereof);
and (c) shall not be responsible for any action taken or omitted to be taken
by
it hereunder or provided for herein or in connection herewith, except for its
own willful misconduct or gross negligence (or simple negligence in connection
with the handling of funds).
Section
2.02. Establishment
of Paying Agent Account.
The
Paying Agent shall establish a deposit account (the “Paying
Agent Account”)
at
Wilmington Trust Company in the name of the Escrow Agent. It is expressly
understood by the parties hereto that the Paying Agent is acting as the paying
agent of the Escrow Agent hereunder and that no amounts on deposit in the Paying
Agent Account constitute part of the Trust Property.
Section
2.03. Payments
from Paying Agent Account.
The
Escrow Agent hereby irrevocably instructs the Paying Agent, and the Paying
Agent
agrees to act, as follows:
(a) On
each
Interest Payment Date (as defined in the Deposit Agreement) or as soon
thereafter as the Paying Agent has confirmed receipt in the Paying Agent Account
from the Depositary of any amount in respect of accrued interest on the
Deposits, the Paying Agent shall distribute out of the Paying Agent Account
the
entire amount deposited therein by the Depositary. There shall be so distributed
to each Receiptholder of record on the 15th day (whether or not a Business
Day)
preceding such Interest Payment Date by check mailed to such Receiptholder,
at
the address appearing in the Register, such Receiptholder's pro rata share
(based on the Escrow Interest in the Account Amounts held by such Receiptholder)
of the total amount of interest deposited by the Depositary in the Paying Agent
Account on such date, except that, with respect to Escrow Receipts registered
on
the Record Date in the name of The Depository Trust Company (“DTC”),
such
distribution shall be made by wire transfer in immediately available funds
to
the account designated by DTC.
(b) Upon
the
confirmation by the Paying Agent of receipt in the Paying Agent Account from
the
Depositary of any amount in respect of the Final Withdrawal, the Paying Agent
shall forthwith distribute the entire amount of the Final Withdrawal deposited
therein by the Depositary. There shall be so distributed to each Receiptholder
of record on the 15th day (whether or not a Business Day) preceding the Final
Withdrawal Date by check mailed to such Receiptholder, at the address appearing
in the Register, such Receiptholder's pro rata share (based on the Escrow
Interest in the Account Amounts held by such Receiptholder) of the total amount
in the Paying Agent Account on account of such Final Withdrawal, except that,
with respect to Escrow Receipts registered on the Record Date in the name of
DTC, such distribution shall be made by wire transfer in immediately available
funds to the account designated by DTC.
(c) If
any
payment of interest or principal in respect of the Final Withdrawal is not
received by the Paying Agent within five days of the applicable date when due,
then it shall be distributed to Receiptholders after actual receipt by the
Paying Agent on the same basis as a Special Payment is distributed under the
Pass Through Trust Agreement.
(d) The
Paying Agent shall include with any check mailed pursuant to this Section any
notice required to be distributed under the Pass Through Trust Agreement that
is
furnished to the Paying Agent by the Pass Through Trustee.
Section
2.04. Withholding
Taxes.
The
Paying Agent shall exclude and withhold from each distribution of accrued
interest on the Deposits (as defined in the Deposit Agreement) and any amount
in
respect of the Final Withdrawal any and all withholding taxes applicable thereto
as required by law. The Paying Agent agrees to act as such withholding agent
and, in connection therewith, whenever any present or future taxes or similar
charges are required to be withheld with respect to any amounts payable in
respect of the Deposits (as defined in the Deposit Agreement) or the escrow
amounts, to withhold such amounts and timely pay the same to the appropriate
authority in the name of and on behalf of the Receiptholders, that it will
file
any necessary withholding tax returns or statements when due, and that, as
promptly as possible after the payment thereof, it will deliver to each such
Receiptholder appropriate documentation showing the payment thereof, together
with such additional documentary evidence as such Receiptholder may reasonably
request from time to time. The Paying Agent agrees to file any other information
reports as it may be required to file under United States law.
Section
2.05. Resignation
or Removal of Paying Agent.
Subject
to the appointment and acceptance of a successor Paying Agent as provided below,
the Paying Agent may resign at any time by giving 30 days' prior written notice
thereof to the Escrow Agent, but may not otherwise be removed except for cause
by the Escrow Agent. Upon any such resignation or removal, the Escrow Agent
shall have the right to appoint a successor Paying Agent. If no successor Paying
Agent shall have been so appointed and shall have accepted such appointment
within 30 days after the retiring Paying Agent's giving of notice of resignation
or the removal of the retiring Paying Agent, then the retiring Paying Agent
may
appoint a successor Paying Agent. Any successor Paying Agent shall be a bank
which has an office in the United States with a combined capital and surplus
of
at least $100,000,000. Upon the acceptance of any appointment as Paying Agent
hereunder by a successor Paying Agent, such successor Paying Agent shall enter
into such documents as the Escrow Agent shall require and shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Paying Agent, and the retiring Paying Agent shall be discharged
from its duties and obligations hereunder.
Section
2.06. Notice
of Final Withdrawal.
Promptly
after receipt by the Paying Agent of notice that the Escrow Agent has requested
a Final Withdrawal or that a Final Withdrawal will be made, the Paying Agent
shall cause notice of the distribution of the Final Withdrawal to be mailed
to
each of the Receiptholders at its address as it appears in the Register. Such
notice shall be mailed not less than 15 days prior to the Final Withdrawal
Date.
Such notice shall set forth:
(i) the
Final
Withdrawal Date and the date for determining Receiptholders of record who shall
be entitled to receive distributions in respect of the Final Withdrawal,
(ii) the
amount of the payment in respect of the Final Withdrawal for each $1,000 face
amount Certificate (based on information provided by the Pass Through Trustee)
and the amount thereof constituting unused Deposits (as defined in the Deposit
Agreement) and interest thereon, and
(iii) if
the
Final Withdrawal 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 Certificate (based on information provided by the Pass Through
Trustee).
Such
mailing may include any notice required to be given to Certificateholders in
connection with such distribution pursuant to the Pass Through Trust
Agreement.
SECTION
3. Payments.
If,
notwithstanding the instructions in Section 4 of the Deposit Agreement that
all
amounts payable to the Escrow Agent under the Deposit Agreement be paid by
the
Depositary directly to the Paying Agent, the Pass Through Trustee or a
Replacement Depositary (depending on the circumstances), the Escrow Agent
receives any payment thereunder, then the Escrow Agent shall forthwith pay
such
amount in Dollars and in immediately available funds by wire transfer to (a)
in
the case of a payment of accrued interest on the Deposits (as defined in the
Deposit Agreement) or any Final Withdrawal, directly to the Paying Agent
Account, (b) in the case of any Purchase Withdrawal, directly to the Pass
Through Trustee or its designee as specified and in the manner provided in
the
Applicable Notice of Purchase Withdrawal and (c) in the case of any Replacement
Withdrawal, to the Replacement Depositary as provided in the Replacement
Depositary Agreement. The Escrow Agent hereby waives any and all rights of
set-off, combination of accounts, right of retention or similar right (whether
arising under applicable law, contract or otherwise) it may have against amounts
payable to the Paying Agent howsoever arising.
SECTION
4. Other
Actions.
The
Escrow Agent shall take such other actions under or in respect of the Deposit
Agreement (including, without limitation, the enforcement of the obligations
of
the Depositary thereunder) as the Investors, by an Action of Investors, may
from
time to time request.
SECTION
5. Representations
and Warranties of the Escrow Agent.
The
Escrow Agent represents and warrants to Continental, the Investors, the Paying
Agent and the Pass Through Trustee as follows:
(i) it
is a
national banking association duly organized and validly existing in good
standing under the laws of the United States of America;
(ii) it
has
full power, authority and legal right to conduct its business and operations
as
currently conducted and to enter into and perform its obligations under this
Agreement, the Deposit Agreement and any Replacement Deposit
Agreement;
(iii) the
execution, delivery and performance of each of this Agreement, the Deposit
Agreement and any Replacement Deposit Agreement have been duly authorized by
all
necessary corporate action on the part of it and do not require any stockholder
approval, or approval or consent of any trustee or holder of any indebtedness
or
obligations of it, and each such document (other than a Replacement Deposit
Agreement) has been duly executed and delivered by it and constitutes its legal,
valid and binding obligations enforceable against it in accordance with the
terms hereof or thereof except as such enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the
enforcement
of
creditors' rights generally (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iv) no
authorization, consent or approval of or other action by, and no notice to
or
filing with, any United States federal or state governmental authority or
regulatory body is required for the execution, delivery or performance by it
of
this Agreement, the Deposit Agreement or any Replacement Deposit
Agreement;
(v) neither
the execution, delivery or performance by it of this Agreement, the Deposit
Agreement or any Replacement Deposit Agreement, nor compliance with the terms
and provisions hereof or thereof, conflicts or will conflict with or results
or
will result in a breach or violation of any of the terms, conditions or
provisions of, or will require any consent or approval under, any law,
governmental rule or regulation or the charter documents, as amended, or bylaws,
as amended, of it or any similar instrument binding on it or any order, writ,
injunction or decree of any court or governmental authority against it or by
which it or any of its properties is bound or any indenture, mortgage or
contract or other agreement or instrument to which it is a party or by which
it
or any of its properties is bound, or constitutes or will constitute a default
thereunder or results or will result in the imposition of any lien upon any
of
its properties; and
(vi) there
are
no pending or, to its knowledge, threatened actions, suits, investigations
or
proceedings (whether or not purportedly on behalf of it) against or affecting
it
or any of its property before or by any court or administrative agency which,
if
adversely determined, (A) would adversely affect the ability of it to perform
its obligations under this Agreement, the Deposit Agreement or any Replacement
Deposit Agreement or (B) would call into question or challenge the validity
of
this Agreement or the Deposit Agreement or the enforceability hereof or thereof
in accordance with the terms hereof or thereof, nor is the Escrow Agent in
default with respect to any order of any court, governmental authority,
arbitration board or administrative agency so as to adversely affect its ability
to perform its obligations under this Agreement or the Deposit
Agreement.
SECTION
6. Representations
and Warranties of the Paying Agent.
The
Paying Agent represents and warrants to Continental, the Investors, the Escrow
Agent and the Pass Through Trustee as follows:
(i) it
is a
Delaware banking company duly organized and validly existing in good standing
under the laws of its jurisdiction of incorporation;
(ii) it
has
full power, authority and legal right to conduct its business and operations
as
currently conducted and to enter into and perform its obligations under this
Agreement;
(iii) the
execution, delivery and performance of this Agreement has been duly authorized
by all necessary corporate action on the part of it and does not require any
stockholder approval, or approval or consent of any trustee or holder of any
indebtedness or obligations of it, and such document has been duly executed
and
delivered by it and constitutes its legal, valid and binding obligations
enforceable against it in accordance with the terms hereof except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights generally
(regardless of whether such enforceability is considered in a proceeding in
equity or at law);
(iv) no
authorization, consent or approval of or other action by, and no notice to
or
filing with, any United States federal or state governmental authority or
regulatory body is required for the execution, delivery or performance by it
of
this Agreement;
(v) neither
the execution, delivery or performance by it of this Agreement, nor compliance
with the terms and provisions hereof, conflicts or will conflict with or results
or will result in a breach or violation of any of the terms, conditions or
provisions of, or will require any consent or approval under, any law,
governmental rule or regulation or the charter documents, as amended, or bylaws,
as amended, of it or any similar instrument binding on it or any order, writ,
injunction or decree of any court or governmental authority against it or by
which it or any of its properties is bound or any indenture, mortgage or
contract or other agreement or instrument to which it is a party or by which
it
or any of its properties is bound, or constitutes or will constitute a default
thereunder or results or will result in the imposition of any lien upon any
of
its properties; and
(vi) there
are
no pending or, to its knowledge, threatened actions, suits, investigations
or
proceedings (whether or not purportedly on behalf of it) against or affecting
it
or any of its property before or by any court or administrative agency which,
if
adversely determined, (A) would adversely affect the ability of it to perform
its obligations under this Agreement or (B) would call into question or
challenge the validity of this Agreement or the enforceability hereof in
accordance with the terms hereof, nor is the Paying Agent in default with
respect to any order of any court, governmental authority, arbitration board
or
administrative agency so as to adversely affect its ability to perform its
obligations under this Agreement.
SECTION
7. Indemnification.
Except
for actions expressly required of the Escrow Agent or the Paying Agent
hereunder, each of the Escrow Agent and the Paying Agent shall in all cases
be
fully justified in failing or refusing to act hereunder unless it shall have
been indemnified by the party requesting such action in a manner reasonably
satisfactory to it against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. In
the
event Continental requests any amendment to any Operative Agreement (as defined
in the Note Purchase Agreement), the Pass Through Trustee agrees to pay all
reasonable fees and expenses (including, without limitation, fees and
disbursements of counsel) of the Escrow Agent and the Paying Agent in connection
therewith.
SECTION
8. Amendment,
Etc.
Upon
request of the Pass Through Trustee and approval by an Action of Investors,
the
Escrow Agent and Paying Agent shall enter into an amendment to this Agreement,
so long as such amendment does not adversely affect the rights or obligations
of
the Escrow Agent or the Paying Agent, provided
that
upon request of the Pass Through Trustee and without any consent of the
Investors, the Escrow Agent and Paying Agent shall enter into an amendment
to
this Agreement for any of the following purposes:
(1) to
correct or supplement any provision in this Agreement which may be defective
or
inconsistent with any other provision herein or to cure any ambiguity or correct
any mistake or to modify any other provision with respect to matters or
questions arising under this Agreement, provided
that any
such action shall not materially adversely affect the interests of the
Investors; or
(2) to
comply
with any requirement of the SEC, applicable law, rules or regulations of any
exchange or quotation system on which the Certificates are listed or any
regulatory body; or
(3) to
evidence and provide for the acceptance of appointment under this Agreement
of a
successor Escrow Agent, successor Paying Agent or successor Pass Through
Trustee.
SECTION
9. Notices.
Unless
otherwise expressly provided herein, any notice or other communication under
this Agreement shall be in writing (including by facsimile) and shall be deemed
to be given and effective upon receipt thereof. All notices shall be sent to
(a)
in the case of the Investors, as their respective addresses shall appear in
the
Register, (b) in the case of the Escrow Agent, Wells Fargo Bank Northwest,
National Association, 299 South Main Street, 12th Floor, Salt Lake City, UT
84111, Attention: Corporate Trust Services (Telecopier: (801) 246-5053),
(c) in the case of the Pass Through Trustee, Wilmington Trust Company, 1100
North Market Street, Rodney Square North, Wilmington, DE 19890-1605, Attention:
Corporate Capital Market Services (Telecopier: (302) 636-4140) or (d) in the
case of the Paying Agent, Wilmington Trust Company, 1100 North Market Street,
Rodney Square North, Wilmington, DE 19890-1605, Attention: Corporate Capital
Market Services (Telecopier: (302) 636-4140), in each case with a copy to
Continental, Continental Airlines, Inc., 1600 Smith Street, Dept. HQS-FN,
Houston, TX 77002, Attention: Treasurer (Telecopier: (713) 324-2447) (or at
such
other address as any such party may specify from time to time in a written
notice to the other parties). On or prior to the execution of this Agreement,
the Pass Through Trustee has delivered to the Escrow Agent a certificate
containing specimen signatures of the representatives of the Pass Through
Trustee who are authorized to give notices and instructions with respect to
this
Agreement. The Escrow Agent may conclusively rely on such certificate until
the
Escrow Agent receives written notice from the Pass Through Trustee to the
contrary.
The
Escrow Agent shall notify the Receiptholders in the event of a default in the
payment of interest on the Deposits when due in accordance with the Deposit
Agreement or a default in the payment of any Final Withdrawal in accordance
with
the terms of the Deposit Agreement and this Agreement and shall promptly forward
to Receiptholders upon receipt copies of all written communications relating
to
any payments due to the Receiptholders in respect of the
Deposits.
SECTION
10. Transfer.
No party
hereto shall be entitled to assign or otherwise transfer this Agreement (or
any
interest herein) other than (in the case of the Escrow Agent) to a successor
escrow agent under Section 1.06 hereof or (in the case of the Paying Agent)
to a
successor paying agent under Section 2.04 hereof, and any purported assignment
in violation thereof shall be void. This Agreement shall be binding upon the
parties hereto and their respective successors and (in the case of the Escrow
Agent and the Paying Agent) their respective permitted assigns. Upon the
occurrence of the Transfer (as defined below) contemplated by the Assignment
and
Assumption Agreement (as defined below), the Pass Through Trustee shall (without
further act) be deemed to have transferred all of its right, title and interest
in and to this Agreement to the trustee of the Successor Trust (as defined
below) and, thereafter, the trustee of the Successor Trust shall be deemed
to be
the “Pass Through Trustee” hereunder with the rights and obligations of the
“Pass Through Trustee” hereunder and each reference herein to “Continental
Airlines Pass Through Trust 2007-1A-O” shall be deemed to be a reference to
“Continental Airlines Pass Through Trust 2007-1A-S”. The parties hereto hereby
acknowledge and consent to the Transfer contemplated by the Assignment and
Assumption Agreement. As used herein, “Transfer”
means
the transfers of the assets to the Successor Trust contemplated by the
Assignment and Assumption Agreement; “Assignment
and Assumption Agreement”
means
the Assignment and Assumption Agreement to be entered into between the Pass
Through Trustee and the trustee of the Successor Trust, substantially in the
form of Exhibit C to the Trust Supplement; “Successor
Trust”
means
the Continental Airlines Pass Through Trust 2007-1A-S.
SECTION
11. Entire
Agreement.
This
Agreement sets forth all of the promises, covenants, agreements, conditions
and
understandings among the Escrow Agent, the Paying Agent, the Underwriters and
the Pass Through Trustee with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements and undertakings,
inducements or conditions, express or implied, oral or written.
SECTION
12. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York.
SECTION
13. Waiver
of Jury Trial Right.
EACH OF
THE ESCROW AGENT, THE PAYING AGENT, THE INVESTORS AND THE PASS THROUGH TRUSTEE
ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF
OR RELATING TO THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A
TRIAL
BY JURY.
SECTION
14. Counterparts.
This
Agreement may be executed in one or more counterparts, all of which taken
together shall constitute one instrument.
SECTION
15. Rights
of Holders.
Each
Receiptholder shall have the right (individually and without the need for any
other action of any Person, including the Escrow Agent or any other
Receiptholder), upon any default in the payment of interest on the Deposits
when
due by the Depositary in accordance with the Deposit Agreement, or upon any
default in the payment of the Final Withdrawal when due by the Depositary in
accordance with the terms of the Deposit Agreement and this Agreement, (i)
to
proceed directly against the Depositary by making a demand to the Depositary
for
the portion of such payment that would have been distributed to such
Receiptholder pursuant to this Agreement or by bringing suit to
enforce
payment
of such portion and (ii) to enforce any other rights that the Escrow Agent
may
have in respect of amounts due from the Depositary under the Deposit Agreement
and this Agreement that would have been distributed to such Receiptholder
pursuant to this Agreement. Any recovery on such enforcement action shall belong
solely to the Receiptholder who brought such action, and not to the Escrow
Agent
or any other Receiptholder individually or to Receiptholders as a
group.
IN
WITNESS WHEREOF, the Escrow Agent, the Paying Agent, the Underwriters and the
Pass Through Trustee have caused this Escrow and Paying Agent Agreement (Class
A) to be duly executed as of the day and year first above written.
|
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as
Escrow Agent
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
|
MORGAN
STANLEY & CO. INCORPORATED, CREDIT SUISSE SECURITIES (USA) LLC,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, CITIGROUP GLOBAL
MARKETS INC., UBS SECURITIES INC., CALYON SECURITIES (USA) INC. and
J.P.
MORGAN SECURITIES INC.
as
Underwriters
|
||
|
By:
MORGAN STANLEY & CO. INCORPORATED
|
||
|
By
|
||
|
Name:
Patrick K’ufer
|
||
|
Title:
Managing Director
|
||
|
By:
CREDIT SUISSE SECURITIES (USA) LLC
|
||
|
By
|
||
|
Name:
James Palen
|
||
|
Title:
Director
|
||
Escrow
and Paying Agent Agreement (Class A)
|
WILMINGTON
TRUST COMPANY, not in its individual capacity, but solely as Pass
Through
Trustee for and on behalf of Continental Airlines Pass Through
Trust
2007-1A-O
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
|
WILMINGTON
TRUST COMPANY,
as
Paying Agent
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
CONTINENTAL
AIRLINES 2007-1A ESCROW RECEIPT
No.
__
This
Escrow Receipt evidences a fractional undivided interest in amounts
(“Account
Amounts”)
from
time to time deposited on behalf of the holder hereof into a certain paying
agent account (the “Paying
Agent Account”)
described in the Escrow and Paying Agent Agreement (Class A) dated as of April
10, 2007 (as amended, modified or supplemented from time to time, the
“Escrow
and Paying Agent Agreement”)
among
Wells Fargo Bank Northwest, National Association, as Escrow Agent (in such
capacity, together with its successors in such capacity, the “Escrow
Agent”),
Morgan Stanley & Co. Incorporated, Credit Suisse Securities (USA) LLC,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets
Inc., UBS Securities LLC, Calyon Securities (USA) Inc. and J.P. Morgan
Securities Inc., as Underwriters, Wilmington Trust Company, as Pass Through
Trustee (in such capacity, together with its successors in such capacity, the
“Pass
Through Trustee”)
and
Wilmington Trust Company, as paying agent (in such capacity, together with
its
successors in such capacity, the “Paying
Agent”).
Capitalized terms not defined herein shall have the meanings assigned to them
in
the Escrow and Paying Agent Agreement.
This
Escrow Receipt is issued under and is subject to the terms, provisions and
conditions of the Escrow and Paying Agent Agreement. By virtue of its acceptance
hereof the holder of this Escrow Receipt assents and agrees to be bound by
the
provisions of the Escrow and Paying Agent Agreement and this Escrow
Receipt.
This
Escrow Receipt represents a fractional undivided interest in amounts deposited
from time to time in the Paying Agent Account, and grants or represents no
rights, benefits or interests of any kind in respect of any assets or property
other than such amounts. This Escrow Receipt evidences the same percentage
interest in the Account Amounts as the Fractional Undivided Interest in the
Pass
Through Trust evidenced by the Certificate to which this Escrow Receipt is
affixed.
All
payments and distributions made to Receiptholders in respect of the Escrow
Receipt shall be made only from Account Amounts deposited in the Paying Agent
Account. The holder of this Escrow Receipt, by its acceptance of this Escrow
Receipt, agrees that it will look solely to the Account Amounts for any payment
or distribution due to it pursuant to this Escrow Receipt (or, in case the
Depositary shall default in its obligation to make a payment under the Deposit
Agreement that would be an Account Amount, to the Depositary) and that it will
not have any recourse to Continental, the Pass Through Trustee, the Paying
Agent
or the Escrow Agent, except as expressly provided herein or in the Pass Through
Trust Agreement. No Receiptholder of this Escrow Receipt shall have any right
to
vote or in any manner otherwise control the operation and management of the
Paying Agent Account, nor shall anything set forth herein, or contained in
the
terms of this Escrow Receipt, be construed so as to constitute the
Receiptholders from time to time as partners or members of an association.
This
Escrow Receipt may not be assigned or transferred except in connection with
the
assignment or transfer of the Certificate to which this Escrow Receipt is
affixed. After
payment
to the holder hereof of its Escrow Interest in the Final Distribution, upon
the
request of the Pass Through Trustee, the holder hereof will return this Escrow
Receipt to the Pass Through Trustee.
The
Paying Agent may treat the person in whose name the Certificate to which this
Escrow Receipt is attached as the owner hereof for all purposes, and the Paying
Agent shall not be affected by any notice to the contrary.
THIS
ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK.
IN
WITNESS WHEREOF, the Escrow Agent has caused this Escrow Receipt to be duly
executed.
Dated:
April 10, 2007
|
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as
Escrow Agent
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
WITHDRAWAL
CERTIFICATE
(Class
A)
Wells
Fargo Bank Northwest, National Association
as
Escrow
Agent
Dear
Sirs:
Reference
is made to the Escrow and Paying Agent Agreement, dated as of April 10, 2007
(the “Agreement”). [We hereby certify to you that the conditions to the
obligations of the undersigned to execute a Participation Agreement pursuant
to
the Note Purchase Agreement have been satisfied] [We hereby notify you that
the
Depositary is being replaced in accordance with Section 4(a)(vii) of the Note
Purchase Agreement]. Pursuant to Section [1.02(c)][1.02(d)] of the Agreement,
please execute the attached [Notice of Purchase Withdrawal][Notice of
Replacement Withdrawal] and immediately transmit by facsimile to the Depositary,
at [__________], Attention: [__________].
|
Very
truly yours,
|
||
|
WILMINGTON
TRUST COMPANY,
not
in its individual capacity but
solely
as Pass Through Trustee
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
Dated:
____________, 200_
ESCROW
AND PAYING AGENT AGREEMENT
(Class
B)
Dated
as
of April 10, 2007
among
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as
Escrow
Agent
MORGAN
STANLEY & CO. INCORPORATED,
CREDIT
SUISSE SECURITIES (USA) LLC,
MERRILL
LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
CITIGROUP
GLOBAL MARKETS INC.,
UBS
SECURITIES LLC,
CALYON
SECURITIES (USA) INC.
and
J.P.
MORGAN SECURITIES INC.
as
Underwriters
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity,
but
solely as Pass Through Trustee
for
and
on behalf of
Continental
Airlines Pass Through Trust 2007-1B-O
as
Pass
Through Trustee
and
WILMINGTON
TRUST COMPANY
as
Paying
Agent
cv
|
Exhibit
A
|
|
|
Exhibit
B
|
ESCROW
AND PAYING AGENT AGREEMENT (Class B) dated as of April 10, 2007 (as amended,
modified or supplemented from time to time, this “Agreement”)
among
WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, a national banking
association, as Escrow Agent (in such capacity, together with its successors
in
such capacity, the “Escrow
Agent”);
MORGAN STANLEY & CO. INCORPORATED, CREDIT SUISSE SECURITIES (USA) LLC,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, CITIGROUP GLOBAL MARKETS
INC., UBS SECURITIES LLC, CALYON SECURITIES (USA) INC. and J.P. MORGAN
SECURITIES INC. as Underwriters of the Certificates referred to below (the
“Underwriters”
and
together with their respective transferees and assigns as registered owners
of
the Certificates, the “Investors”)
under
the Underwriting Agreement referred to below; WILMINGTON TRUST COMPANY, a
Delaware banking corporation, not in its individual capacity except as otherwise
expressly provided herein, but solely as trustee (in such capacity, together
with its successors in such capacity, the “Pass
Through Trustee”)
under
the Pass Through Trust Agreement referred to below; and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as paying agent hereunder (in such
capacity, together with its successors in such capacity, the “Paying
Agent”).
WITNESSETH
WHEREAS,
Continental Airlines, Inc. (“Continental”)
and
the Pass Through Trustee have entered into a Trust Supplement, dated as of
April
10, 2007 (the “Trust
Supplement”),
to
the Pass Through Trust Agreement, dated as of September 25, 1997 (together,
as
amended, modified or supplemented from time to time in accordance with the
terms
thereof, the “Pass
Through Trust Agreement”)
relating to Continental Airlines Pass Through Trust 2007-1B-O (the “Pass
Through Trust”)
pursuant to which the Continental Airlines Pass Through Trust, Series 2007-1B-O
Certificates referred to therein (the “Certificates”)
are
being issued (the date of such issuance, the “Issuance
Date”);
WHEREAS,
Continental and the Underwriters have entered into an Underwriting Agreement
dated as of March 27, 2007 (as amended, modified or supplemented from time
to
time in accordance with the terms thereof, the “Underwriting
Agreement”)
pursuant to which the Pass Through Trustee will issue and sell the Certificates
to the Underwriters;
WHEREAS,
Continental, the Pass Through Trustee, certain other pass through trustees
and
certain other persons concurrently herewith are entering into the Note Purchase
Agreement, dated as of the date hereof (the “Note
Purchase Agreement”),
pursuant to which the Pass Through Trustee has agreed to acquire from time
to
time on or prior to the Delivery Period Termination Date (as defined in the
Note
Purchase Agreement) equipment notes (the “Equipment
Notes”)
issued
to finance the acquisition of aircraft by Continental, as owner, utilizing
a
portion of the proceeds from the sale of the Certificates (the “Net
Proceeds”);
WHEREAS,
the Underwriters and the Pass Through Trustee intend that the Net Proceeds
be
held in escrow by the Escrow Agent on behalf of the Investors, subject to
withdrawal upon request by the Pass Through Trustee and satisfaction of the
conditions set forth in the Note Purchase Agreement for the purpose of
purchasing Equipment Notes, and that pending such withdrawal the Net Proceeds
be
deposited on behalf of the Escrow Agent with Credit Suisse, New York Branch,
as
Depositary (the “Depositary”,
which
shall also be deemed to
refer
to
any Replacement Depositary (as defined in the Note Purchase Agreement) from
and
after the date on which the Deposits are transferred to such Replacement
Depositary) under the Deposit Agreement, dated as of the date hereof between
the
Depositary and the Escrow Agent relating to the Pass Through Trust (as amended,
modified, supplemented or replaced from time to time in accordance with the
terms thereof, the “Deposit
Agreement”,
which
shall also be deemed to refer to any Replacement Deposit Agreement (as defined
in the Note Purchase Agreement) to which the Escrow Agent becomes a party
pursuant to Section 1.02(a) hereof from and after the transfer of the Deposits
from the Depositary to the Replacement Depositary) pursuant to which, among
other things, the Depositary will pay interest for distribution to the Investors
and establish accounts from which the Escrow Agent shall make withdrawals upon
request of and proper certification by the Pass Through Trustee;
WHEREAS,
the Escrow Agent wishes to appoint the Paying Agent to pay amounts required
to
be distributed to the Investors in accordance with this Agreement;
and
WHEREAS,
capitalized terms used but not defined herein shall have the meanings ascribed
to such terms in the Pass Through Trust Agreement.
NOW,
THEREFORE, in consideration of the obligations contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION
1. Escrow
Agent.
Section
1.01. Appointment
of Escrow Agent.
Each of
the Underwriters, for and on behalf of each of the Investors, hereby irrevocably
appoints, authorizes and directs the Escrow Agent to act as escrow agent and
fiduciary hereunder and under the Deposit Agreement for such specific purposes
and with such powers as are specifically delegated to the Escrow Agent by the
terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Any and all money received and held by the Escrow Agent
under this Agreement or the Deposit Agreement shall be held in escrow by the
Escrow Agent in accordance with the terms of this Agreement. This Agreement
is
irrevocable and the Investors' rights with respect to any monies received and
held in escrow by the Escrow Agent under this Agreement or the Deposit Agreement
shall only be as provided under the terms and conditions of this Agreement
and
the Deposit Agreement. The Escrow Agent (which term as used in this sentence
shall include reference to its affiliates and its own and its affiliates'
officers, directors, employees and agents): (a) shall have no duties or
responsibilities except those expressly set forth in this Agreement; (b) shall
not be responsible to the Pass Through Trustee or the Investors for any
recitals, statements, representations or warranties of any person other then
itself contained in this Agreement or the Deposit Agreement or for the failure
by the Pass Through Trustee, the Investors or any other person or entity (other
than the Escrow Agent) to perform any of its obligations hereunder (whether
or
not the Escrow Agent shall have any knowledge thereof); and (c) shall not be
responsible for any action taken or omitted to be taken by it hereunder or
provided for herein or in connection herewith, except for its own willful
misconduct or gross negligence (or simple negligence in connection with the
handling of funds).
Section
1.02. Instruction;
Etc.
The
Underwriters, for and on behalf of each of the Investors, hereby irrevocably
instruct the Escrow Agent, and the Escrow Agent agrees:
(a)
to
enter into the Deposit Agreement, and, if requested by the Company pursuant
to
Section 4(a)(vii) of the Note Purchase Agreement, to enter into a Replacement
Deposit Agreement with the Replacement Depositary specified by the
Company;
(b)
to
appoint the Paying Agent as provided in this Agreement;
(c)
upon
receipt at any time and from time to time prior to the Termination Date (as
defined below) of a certificate substantially in the form of Exhibit B hereto
(a
“Withdrawal
Certificate”)
executed by the Pass Through Trustee, together with an attached Notice of
Purchase Withdrawal in substantially the form of Exhibit A to the Deposit
Agreement duly completed by the Pass Through Trustee (the “Applicable
Notice of Purchase Withdrawal”
and
the
withdrawal to which it relates, a “Purchase
Withdrawal”),
immediately to execute the Applicable Notice of Purchase Withdrawal as Escrow
Agent and transmit it to the Depositary by facsimile transmission in accordance
with the Deposit Agreement; provided
that,
upon the request of the Pass Through Trustee after such transmission, the Escrow
Agent shall cancel such Applicable Notice of Purchase Withdrawal;
(d)
upon
receipt of a Withdrawal Certificate executed by the Pass Through Trustee,
together with an attached Notice of Replacement Withdrawal in substantially
the
form of Exhibit C to the Deposit Agreement duly completed by the Pass Through
Trustee, to:
(X)
give
such Notice of Replacement Withdrawal to the Depositary requesting a withdrawal,
on the date specified in such notice, which shall not be less than five Business
Days after such notice is given (the “Replacement
Withdrawal Date”),
of
all Deposits then held by the Depositary together with all accrued and unpaid
interest on such Deposits to but excluding the Replacement Withdrawal Date;
and
(Y)
direct the Depositary to transfer such Deposits and accrued interest on behalf
of the Escrow Agent to the Replacement Depositary in accordance with the
Replacement Deposit Agreement; and
(e)
if
there are any undrawn Deposits (as defined in the Deposit Agreement) on the
“Termination
Date”,
which
shall mean the earlier of (i) September 30, 2009 (provided that, if a labor
strike occurs or continues at The Boeing Company after the Issuance Date and
prior to September 30, 2009 (a “Labor
Strike”),
such
date shall be extended by adding thereto the number of days that such strike
continued in effect after the Issuance Date (the “Additional
Days”)
and
(ii) the day on which the Escrow Agent receives notice from the Pass Through
Trustee that the Pass Through Trustee's obligation to purchase Equipment Notes
under the Note Purchase Agreement has terminated, to immediately give notice
to
the Depositary (with a copy to the Paying Agent) substantially in the form
of
Exhibit B to the Deposit Agreement requesting a withdrawal of all of the
remaining
Deposits, together with accrued and unpaid interest on such Deposits to the
date
of withdrawal, on the 25th
day
after the date that such notice of withdrawal is given to the Depositary (or,
if
not a Business Day, on the next succeeding Business Day) (a “Final
Withdrawal”),
provided
that if
the day scheduled for the Final Withdrawal in accordance with the foregoing
is
within 10 days before or after a Regular Distribution Date, then the Escrow
Agent shall request that such requested Final Withdrawal be made on such Regular
Distribution Date (the date of such requested withdrawal, the “Final
Withdrawal Date”).
If
for
any reason the Escrow Agent shall have failed to give the Final Withdrawal
Notice to the Depositary on or before October 9, 2009 (provided
that if
a Labor Strike occurs or continues, such date shall be extended by the
Additional Days), and there are unwithdrawn Deposits on such date, the Final
Withdrawal Date shall be deemed to be October 31, 2009 (provided
that if
a Labor Strike occurs or continues, such date shall be extended by the
Additional Days).
Section
1.03. Initial
Escrow Amount; Issuance of Escrow Receipts.
The
Escrow Agent hereby directs the Underwriters to, and the Underwriters hereby
acknowledge that on the date hereof they shall, irrevocably deliver to the
Depositary on behalf of the Escrow Agent, an amount in U.S. dollars
(“Dollars”)
and
immediately available funds equal to $221,850,000 for deposit on behalf of
the
Escrow Agent with the Depositary in accordance with Section 2.1 of the Deposit
Agreement. The Underwriters hereby instruct the Escrow Agent, upon receipt
of
such sum from the Underwriters, to confirm such receipt by executing and
delivering to the Pass Through Trustee an Escrow Receipt in the form of Exhibit
A hereto (an “Escrow
Receipt”),
(a)
to be affixed by the Pass Through Trustee to each Certificate and (b) to
evidence the same percentage interest (the “Escrow
Interest”)
in the
Account Amounts (as defined below) as the Fractional Undivided Interest in
the
Pass Through Trust evidenced by the Certificate to which it is to be affixed.
The Escrow Agent shall provide to the Pass Through Trustee for attachment to
each Certificate newly issued under and in accordance with the Pass Through
Trust Agreement an executed Escrow Receipt as the Pass Through Trustee may
from
time to time request of the Escrow Agent. Each Escrow Receipt shall be
registered by the Escrow Agent in a register (the “Register”)
maintained by the Escrow Agent in the name of the same holder that is the holder
of the Certificate to which it is attached and may not thereafter be detached
from such Certificate to which it is to be affixed prior to the distribution
of
the Final Withdrawal (the “Final
Distribution”).
After
the Final Distribution, no additional Escrow Receipts shall be issued and the
Pass Through Trustee shall request the return to the Escrow Agent for
cancellation of all outstanding Escrow Receipts.
Section
1.04. Payments
to Receiptholders.
All
payments and distributions made to holders of an Escrow Receipt (collectively
“Receiptholders”)
in
respect of the Escrow Receipt shall be made only from amounts deposited in
the
Paying Agent Account (as defined below) (“Account
Amounts”).
Each
Receiptholder, by its acceptance of an Escrow Receipt, agrees that (a) it will
look solely to the Account Amounts for any payment or distribution due to such
Receiptholder pursuant to the terms of the Escrow Receipt and this Agreement
(subject to Section 15 hereof) and (b) it will have no recourse to Continental,
the Pass Through Trustee, the Paying Agent or the Escrow Agent, except as
expressly provided herein or in the Pass Through Trust Agreement. No
Receiptholder shall have any right to vote or in any manner otherwise control
the operation and management of the Paying Agent Account or the obligations
of
the
parties
hereto, nor shall anything set forth herein, or contained in the terms of the
Escrow Receipt, be construed so as to constitute the Receiptholders from time
to
time as partners or members of an association.
Section
1.05. Mutilated,
Destroyed, Lost or Stolen Escrow Receipt.
If (a)
any mutilated Escrow Receipt is surrendered to the Escrow Agent or the Escrow
Agent receives evidence to its satisfaction of the destruction, loss or theft
of
any Escrow Receipt and (b) there is delivered to the Escrow Agent and the
Pass Through Trustee such security, indemnity or bond, as may be required by
them to hold each of them harmless, then, absent notice to the Escrow Agent
or
the Pass Through Trustee that such destroyed, lost or stolen Escrow Receipt
has
been acquired by a bona fide purchaser, and provided that the requirements
of
Section 8-405 of the Uniform Commercial Code in effect in any applicable
jurisdiction are met, the Escrow Agent shall execute, authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Escrow Receipt, a new Escrow Receipt or Escrow Receipts and of like Escrow
Interest in the Account Amounts and bearing a number not contemporaneously
outstanding.
In
connection with the issuance of any new Escrow Receipt under this Section 1.05,
the Escrow Agent may require the payment of a sum sufficient to cover any tax
or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Pass Through Trustee and the
Escrow Agent) connected therewith.
Any
duplicate Escrow Receipt issued pursuant to this Section 1.05 shall constitute
conclusive evidence of the appropriate Escrow Interest in the Account Amounts,
as if originally issued, whether or not the lost, stolen or destroyed Escrow
Receipt shall be found at any time.
The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Escrow Receipts.
Section
1.06. Additional
Escrow Amounts.
On the
date of any Purchase Withdrawal, the Pass Through Trustee may re-deposit with
the Depositary some or all of the amounts so withdrawn in accordance with
Section 2.5 of the Deposit Agreement.
Section
1.07. Resignation
or Removal of Escrow Agent.
Subject
to the appointment and acceptance of a successor Escrow Agent as provided below,
the Escrow Agent may resign at any time by giving 30 days' prior written notice
thereof to the Investors, but may not otherwise be removed except for cause
by
the written consent of the Investors with respect to Investors representing
Escrow Interests aggregating not less than a majority in interest in the Account
Amounts (an “Action
of Investors”).
Upon
any such resignation or removal, the Investors, by an Action of Investors,
shall
have the right to appoint a successor Escrow Agent. If no successor Escrow
Agent
shall have been so appointed and shall have accepted such appointment within
30
days after the retiring Escrow Agent's giving of notice of resignation or the
removal of the retiring Escrow Agent, then the retiring Escrow Agent may appoint
a successor Escrow Agent. Any successor Escrow Agent shall be a bank which
has
an office in the United States with a combined capital and surplus of at least
$100,000,000. Upon the acceptance of any appointment as Escrow Agent hereunder
by a successor Escrow Agent, such successor Escrow Agent shall enter into such
documents as the Pass Through Trustee shall
require
and shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Escrow Agent, and the retiring Escrow
Agent shall be discharged from its duties and obligations hereunder. No
resignation or removal of the Escrow Agent shall be effective unless a written
confirmation shall have been obtained from each of Moody's Investors Service,
Inc. and Standard & Poor's Ratings Services, a division of The McGraw-Hill
Companies, Inc., that the replacement of the Escrow Agent with the successor
Escrow Agent will not result in (a) a reduction of the rating for the
Certificates below the then current rating for the Certificates or (b) a
withdrawal or suspension of the rating of the Certificates.
Section
1.08. Persons
Deemed Owners.
Prior to
due presentment of a Certificate for registration of transfer, the Escrow Agent
and the Paying Agent may treat the Person in whose name any Escrow Receipt
is
registered (as of the day of determination) as the owner of such Escrow Receipt
for the purpose of receiving distributions pursuant to this Agreement and for
all other purposes whatsoever, and neither the Escrow Agent nor the Paying
Agent
shall be affected by any notice to the contrary.
Section
1.09. Further
Assurances.
The
Escrow Agent agrees to take such actions, and execute such other documents,
as
may be reasonably requested by the Pass Through Trustee in order to effectuate
the purposes of this Agreement and the performance by the Escrow Agent of its
obligations hereunder.
SECTION
2. Paying
Agent.
Section
2.01. Appointment
of Paying Agent.
The
Escrow Agent hereby irrevocably appoints and authorizes the Paying Agent to
act
as its paying agent hereunder, for the benefit of the Investors, for such
specific purposes and with such powers as are specifically delegated to the
Paying Agent by the terms of this Agreement, together with such other powers
as
are reasonably incidental thereto. Any and all money received and held by the
Paying Agent under this Agreement or the Deposit Agreement shall be held in
the
Paying Agent Account for the benefit of the Investors. The Paying Agent (which
term as used in this sentence shall include reference to its affiliates and
its
own and its affiliates' officers, directors, employees and agents): (a) shall
have no duties or responsibilities except those expressly set forth in this
Agreement, and shall not by reason of this Agreement be a trustee for the Escrow
Agent; (b) shall not be responsible to the Escrow Agent for any recitals,
statements, representations or warranties of any person other then itself
contained in this Agreement or for the failure by the Escrow Agent or any other
person or entity (other than the Paying Agent) to perform any of its obligations
hereunder (whether or not the Paying Agent shall have any knowledge thereof);
and (c) shall not be responsible for any action taken or omitted to be taken
by
it hereunder or provided for herein or in connection herewith, except for its
own willful misconduct or gross negligence (or simple negligence in connection
with the handling of funds).
Section
2.02. Establishment
of Paying Agent Account.
The
Paying Agent shall establish a deposit account (the “Paying
Agent Account”)
at
Wilmington Trust Company in the name of the Escrow Agent. It is expressly
understood by the parties hereto that the Paying Agent is acting as the paying
agent of the Escrow Agent hereunder and that no amounts on deposit in the Paying
Agent Account constitute part of the Trust Property.
Section
2.03. Payments
from Paying Agent Account.
The
Escrow Agent hereby irrevocably instructs the Paying Agent, and the Paying
Agent
agrees to act, as follows:
(a) On
each
Interest Payment Date (as defined in the Deposit Agreement) or as soon
thereafter as the Paying Agent has confirmed receipt in the Paying Agent Account
from the Depositary of any amount in respect of accrued interest on the
Deposits, the Paying Agent shall distribute out of the Paying Agent Account
the
entire amount deposited therein by the Depositary. There shall be so distributed
to each Receiptholder of record on the 15th day (whether or not a Business
Day)
preceding such Interest Payment Date by check mailed to such Receiptholder,
at
the address appearing in the Register, such Receiptholder's pro rata share
(based on the Escrow Interest in the Account Amounts held by such Receiptholder)
of the total amount of interest deposited by the Depositary in the Paying Agent
Account on such date, except that, with respect to Escrow Receipts registered
on
the Record Date in the name of The Depository Trust Company (“DTC”),
such
distribution shall be made by wire transfer in immediately available funds
to
the account designated by DTC.
(b) Upon
the
confirmation by the Paying Agent of receipt in the Paying Agent Account from
the
Depositary of any amount in respect of the Final Withdrawal, the Paying Agent
shall forthwith distribute the entire amount of the Final Withdrawal deposited
therein by the Depositary. There shall be so distributed to each Receiptholder
of record on the 15th day (whether or not a Business Day) preceding the Final
Withdrawal Date by check mailed to such Receiptholder, at the address appearing
in the Register, such Receiptholder's pro rata share (based on the Escrow
Interest in the Account Amounts held by such Receiptholder) of the total amount
in the Paying Agent Account on account of such Final Withdrawal, except that,
with respect to Escrow Receipts registered on the Record Date in the name of
DTC, such distribution shall be made by wire transfer in immediately available
funds to the account designated by DTC.
(c) If
any
payment of interest or principal in respect of the Final Withdrawal is not
received by the Paying Agent within five days of the applicable date when due,
then it shall be distributed to Receiptholders after actual receipt by the
Paying Agent on the same basis as a Special Payment is distributed under the
Pass Through Trust Agreement.
(d) The
Paying Agent shall include with any check mailed pursuant to this Section any
notice required to be distributed under the Pass Through Trust Agreement that
is
furnished to the Paying Agent by the Pass Through Trustee.
Section
2.04. Withholding
Taxes.
The
Paying Agent shall exclude and withhold from each distribution of accrued
interest on the Deposits (as defined in the Deposit Agreement) and any amount
in
respect of the Final Withdrawal any and all withholding taxes applicable thereto
as required by law. The Paying Agent agrees to act as such withholding agent
and, in connection therewith, whenever any present or future taxes or similar
charges are required to be withheld with respect to any amounts payable in
respect of the Deposits (as defined in the Deposit Agreement) or the escrow
amounts, to withhold such amounts and timely pay the same to the appropriate
authority in the name of and on behalf of the Receiptholders, that it will
file
any necessary withholding tax returns or statements when due, and that, as
promptly as possible after the payment thereof, it will deliver to each such
Receiptholder appropriate documentation showing the payment thereof, together
with such additional documentary evidence as such Receiptholder may reasonably
request from time to time. The Paying Agent agrees to file any other information
reports as it may be required to file under United States law.
Section
2.05. Resignation
or Removal of Paying Agent.
Subject
to the appointment and acceptance of a successor Paying Agent as provided below,
the Paying Agent may resign at any time by giving 30 days' prior written notice
thereof to the Escrow Agent, but may not otherwise be removed except for cause
by the Escrow Agent. Upon any such resignation or removal, the Escrow Agent
shall have the right to appoint a successor Paying Agent. If no successor Paying
Agent shall have been so appointed and shall have accepted such appointment
within 30 days after the retiring Paying Agent's giving of notice of resignation
or the removal of the retiring Paying Agent, then the retiring Paying Agent
may
appoint a successor Paying Agent. Any successor Paying Agent shall be a bank
which has an office in the United States with a combined capital and surplus
of
at least $100,000,000. Upon the acceptance of any appointment as Paying Agent
hereunder by a successor Paying Agent, such successor Paying Agent shall enter
into such documents as the Escrow Agent shall require and shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Paying Agent, and the retiring Paying Agent shall be discharged
from its duties and obligations hereunder.
Section
2.06. Notice
of Final Withdrawal.
Promptly
after receipt by the Paying Agent of notice that the Escrow Agent has requested
a Final Withdrawal or that a Final Withdrawal will be made, the Paying Agent
shall cause notice of the distribution of the Final Withdrawal to be mailed
to
each of the Receiptholders at its address as it appears in the Register. Such
notice shall be mailed not less than 15 days prior to the Final Withdrawal
Date.
Such notice shall set forth:
(i) the
Final
Withdrawal Date and the date for determining Receiptholders of record who shall
be entitled to receive distributions in respect of the Final Withdrawal,
(ii) the
amount of the payment in respect of the Final Withdrawal for each $1,000 face
amount Certificate (based on information provided by the Pass Through Trustee)
and the amount thereof constituting unused Deposits (as defined in the Deposit
Agreement) and interest thereon, and
(iii) if
the
Final Withdrawal 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 Certificate (based on information provided by the Pass Through
Trustee).
Such
mailing may include any notice required to be given to Certificateholders in
connection with such distribution pursuant to the Pass Through Trust
Agreement.
SECTION
3. Payments.
If,
notwithstanding the instructions in Section 4 of the Deposit Agreement that
all
amounts payable to the Escrow Agent under the Deposit Agreement be paid by
the
Depositary directly to the Paying Agent, the Pass Through Trustee or a
Replacement Depositary (depending on the circumstances), the Escrow Agent
receives any payment thereunder, then the Escrow Agent shall forthwith pay
such
amount in Dollars and in immediately available funds by wire transfer to (a)
in
the case of a payment of accrued interest on the Deposits (as defined in the
Deposit Agreement) or any Final Withdrawal, directly to the Paying Agent
Account, (b) in the case of any Purchase Withdrawal, directly to the Pass
Through Trustee or its designee as specified and in the manner provided in
the
Applicable Notice of Purchase Withdrawal and (c) in the case of any Replacement
Withdrawal, to the Replacement Depositary as provided in the Replacement
Depositary Agreement. The Escrow Agent hereby waives any and all rights of
set-off, combination of accounts, right of retention or similar right (whether
arising under applicable law, contract or otherwise) it may have against amounts
payable to the Paying Agent howsoever arising.
SECTION
4. Other
Actions.
The
Escrow Agent shall take such other actions under or in respect of the Deposit
Agreement (including, without limitation, the enforcement of the obligations
of
the Depositary thereunder) as the Investors, by an Action of Investors, may
from
time to time request.
SECTION
5. Representations
and Warranties of the Escrow Agent.
The
Escrow Agent represents and warrants to Continental, the Investors, the Paying
Agent and the Pass Through Trustee as follows:
(i) it
is a
national banking association duly organized and validly existing in good
standing under the laws of the United States of America;
(ii) it
has
full power, authority and legal right to conduct its business and operations
as
currently conducted and to enter into and perform its obligations under this
Agreement, the Deposit Agreement and any Replacement Deposit
Agreement;
(iii) the
execution, delivery and performance of each of this Agreement, the Deposit
Agreement and any Replacement Deposit Agreement have been duly authorized by
all
necessary corporate action on the part of it and do not require any stockholder
approval, or approval or consent of any trustee or holder of any indebtedness
or
obligations of it, and each such document (other than a Replacement Deposit
Agreement) has been duly executed and delivered by it and constitutes its legal,
valid and binding obligations enforceable against it in accordance with the
terms hereof or thereof except as such enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the enforcement
of
creditors' rights generally (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iv) no
authorization, consent or approval of or other action by, and no notice to
or
filing with, any United States federal or state governmental authority or
regulatory body is required for the execution, delivery or performance by it
of
this Agreement, the Deposit Agreement or any Replacement Deposit
Agreement;
(v) neither
the execution, delivery or performance by it of this Agreement, the Deposit
Agreement or any Replacement Deposit Agreement, nor compliance with the terms
and provisions hereof or thereof, conflicts or will conflict with or results
or
will result in a breach or violation of any of the terms, conditions or
provisions of, or will require any consent or approval under, any law,
governmental rule or regulation or the charter documents, as amended, or bylaws,
as amended, of it or any similar instrument binding on it or any order, writ,
injunction or decree of any court or governmental authority against it or by
which it or any of its properties is bound or any indenture, mortgage or
contract or other agreement or instrument to which it is a party or by which
it
or any of its properties is bound, or constitutes or will constitute a default
thereunder or results or will result in the imposition of any lien upon any
of
its properties; and
(vi) there
are
no pending or, to its knowledge, threatened actions, suits, investigations
or
proceedings (whether or not purportedly on behalf of it) against or affecting
it
or any of its property before or by any court or administrative agency which,
if
adversely determined, (A) would adversely affect the ability of it to perform
its obligations under this Agreement, the Deposit Agreement or any Replacement
Deposit Agreement or (B) would call into question or challenge the validity
of
this Agreement or the Deposit Agreement or the enforceability hereof or thereof
in accordance with the terms hereof or thereof, nor is the Escrow Agent in
default with respect to any order of any court, governmental authority,
arbitration board or administrative agency so as to adversely affect its ability
to perform its obligations under this Agreement or the Deposit
Agreement.
SECTION
6. Representations
and Warranties of the Paying Agent.
The
Paying Agent represents and warrants to Continental, the Investors, the Escrow
Agent and the Pass Through Trustee as follows:
(i) it
is a
Delaware banking company duly organized and validly existing in good standing
under the laws of its jurisdiction of incorporation;
(ii) it
has
full power, authority and legal right to conduct its business and operations
as
currently conducted and to enter into and perform its obligations under this
Agreement;
(iii) the
execution, delivery and performance of this Agreement has been duly authorized
by all necessary corporate action on the part of it and does not require any
stockholder approval, or approval or consent of any trustee or holder of any
indebtedness or obligations of it, and such document has been duly executed
and
delivered by it and constitutes its legal, valid and binding obligations
enforceable against it in accordance with the terms hereof except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights generally
(regardless of whether such enforceability is considered in a proceeding in
equity or at law);
(iv) no
authorization, consent or approval of or other action by, and no notice to
or
filing with, any United States federal or state governmental authority or
regulatory body is required for the execution, delivery or performance by it
of
this Agreement;
(v) neither
the execution, delivery or performance by it of this Agreement, nor compliance
with the terms and provisions hereof, conflicts or will conflict with or results
or will result in a breach or violation of any of the terms, conditions or
provisions of, or will require any consent or approval under, any law,
governmental rule or regulation or the charter documents, as amended, or bylaws,
as amended, of it or any similar instrument binding on it or any order, writ,
injunction or decree of any court or governmental authority against it or by
which it or any of its properties is bound or any indenture, mortgage or
contract or other agreement or instrument to which it is a party or by which
it
or any of its properties is bound, or constitutes or will constitute a default
thereunder or results or will result in the imposition of any lien upon any
of
its properties; and
(vi) there
are
no pending or, to its knowledge, threatened actions, suits, investigations
or
proceedings (whether or not purportedly on behalf of it) against or affecting
it
or any of its property before or by any court or administrative agency which,
if
adversely determined, (A) would adversely affect the ability of it to perform
its obligations under this Agreement or (B) would call into question or
challenge the validity of this Agreement or the enforceability hereof in
accordance with the terms hereof, nor is the Paying Agent in default with
respect to any order of any court, governmental authority, arbitration board
or
administrative agency so as to adversely affect its ability to perform its
obligations under this Agreement.
SECTION
7. Indemnification.
Except
for actions expressly required of the Escrow Agent or the Paying Agent
hereunder, each of the Escrow Agent and the Paying Agent shall in all cases
be
fully justified in failing or refusing to act hereunder unless it shall have
been indemnified by the party requesting such action in a manner reasonably
satisfactory to it against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. In
the
event Continental requests any amendment to any Operative Agreement (as defined
in the Note Purchase Agreement), the Pass Through Trustee agrees to pay all
reasonable fees and expenses (including, without limitation, fees and
disbursements of counsel) of the Escrow Agent and the Paying Agent in connection
therewith.
SECTION
8. Amendment,
Etc.
Upon
request of the Pass Through Trustee and approval by an Action of Investors,
the
Escrow Agent and Paying Agent shall enter into an amendment to this Agreement,
so long as such amendment does not adversely affect the rights or obligations
of
the Escrow Agent or the Paying Agent, provided
that
upon request of the Pass Through Trustee and without any consent of the
Investors, the Escrow Agent and Paying Agent shall enter into an amendment
to
this Agreement for any of the following purposes:
(1) to
correct or supplement any provision in this Agreement which may be defective
or
inconsistent with any other provision herein or to cure any ambiguity or correct
any mistake or to modify any other provision with respect to matters or
questions arising under this Agreement, provided
that any
such action shall not materially adversely affect the interests of the
Investors; or
(2) to
comply
with any requirement of the SEC, applicable law, rules or regulations of any
exchange or quotation system on which the Certificates are listed or any
regulatory body; or
(3) to
evidence and provide for the acceptance of appointment under this Agreement
of a
successor Escrow Agent, successor Paying Agent or successor Pass Through
Trustee.
SECTION
9. Notices.
Unless
otherwise expressly provided herein, any notice or other communication under
this Agreement shall be in writing (including by facsimile) and shall be deemed
to be given and effective upon receipt thereof. All notices shall be sent to
(a)
in the case of the Investors, as their respective addresses shall appear in
the
Register, (b) in the case of the Escrow Agent, Wells Fargo Bank Northwest,
National Association, 299 South Main Street, 12th Floor, Salt Lake City, UT
84111, Attention: Corporate Trust Services (Telecopier: (801) 246-5053),
(c) in the case of the Pass Through Trustee, Wilmington Trust Company, 1100
North Market Street, Rodney Square North, Wilmington, DE 19890-1605, Attention:
Corporate Capital Market Services (Telecopier: (302) 636-4140) or (d) in the
case of the Paying Agent, Wilmington Trust Company, 1100 North Market Street,
Rodney Square North, Wilmington, DE 19890-1605, Attention: Corporate Capital
Market Services (Telecopier: (302) 636-4140), in each case with a copy to
Continental, Continental Airlines, Inc., 1600 Smith Street, Dept. HQS-FN,
Houston, TX 77002, Attention: Treasurer (Telecopier: (713) 324-2447) (or at
such
other address as any such party may specify from time to time in a written
notice to the other parties). On or prior to the execution of this Agreement,
the Pass Through Trustee has delivered to the Escrow Agent a certificate
containing specimen signatures of the representatives of the Pass Through
Trustee who are authorized to give notices and instructions with respect to
this
Agreement. The Escrow Agent may conclusively rely on such certificate until
the
Escrow Agent receives written notice from the Pass Through Trustee to the
contrary.
The
Escrow Agent shall notify the Receiptholders in the event of a default in the
payment of interest on the Deposits when due in accordance with the Deposit
Agreement or a default in the payment of any Final Withdrawal in accordance
with
the terms of the Deposit Agreement and this Agreement and shall promptly forward
to Receiptholders upon receipt copies of all written communications relating
to
any payments due to the Receiptholders in respect of the Deposits.
SECTION
10. Transfer.
No party
hereto shall be entitled to assign or otherwise transfer this Agreement (or
any
interest herein) other than (in the case of the Escrow Agent) to a successor
escrow agent under Section 1.06 hereof or (in the case of the Paying Agent)
to a
successor paying agent under Section 2.04 hereof, and any purported assignment
in violation thereof shall be void. This Agreement shall be binding upon the
parties hereto and their respective successors and (in the case of the Escrow
Agent and the Paying Agent) their respective permitted assigns. Upon the
occurrence of the Transfer (as defined below) contemplated by the Assignment
and
Assumption Agreement (as defined below), the Pass Through Trustee shall (without
further act) be deemed to have transferred all of its right, title and interest
in and to this Agreement to the trustee of the Successor Trust (as defined
below) and, thereafter, the trustee of the Successor Trust shall be deemed
to be
the “Pass Through Trustee” hereunder with the rights and obligations of the
“Pass Through Trustee” hereunder and each reference herein to “Continental
Airlines Pass Through Trust 2007-1B-O” shall be deemed to be a reference to
“Continental Airlines Pass Through Trust 2007-1B-S”. The parties hereto hereby
acknowledge and consent to the Transfer contemplated by the Assignment and
Assumption Agreement. As used herein, “Transfer”
means
the transfers of the assets to the Successor Trust contemplated by the
Assignment and Assumption Agreement; “Assignment
and Assumption Agreement”
means
the Assignment and Assumption Agreement to be entered into between the Pass
Through Trustee and the trustee of the Successor Trust, substantially in the
form of Exhibit C to the Trust Supplement; “Successor
Trust”
means
the Continental Airlines Pass Through Trust 2007-1B-S.
SECTION
11. Entire
Agreement.
This
Agreement sets forth all of the promises, covenants, agreements, conditions
and
understandings among the Escrow Agent, the Paying Agent, the Underwriters and
the Pass Through Trustee with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements and undertakings,
inducements or conditions, express or implied, oral or written.
SECTION
12. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York.
SECTION
13. Waiver
of Jury Trial Right.
EACH OF
THE ESCROW AGENT, THE PAYING AGENT, THE INVESTORS AND THE PASS THROUGH TRUSTEE
ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF
OR RELATING TO THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A
TRIAL
BY JURY.
SECTION
14. Counterparts.
This
Agreement may be executed in one or more counterparts, all of which taken
together shall constitute one instrument.
SECTION
15. Rights
of Holders.
Each
Receiptholder shall have the right (individually and without the need for any
other action of any Person, including the Escrow Agent or any other
Receiptholder), upon any default in the payment of interest on the Deposits
when
due by the Depositary in accordance with the Deposit Agreement, or upon any
default in the payment of the Final Withdrawal when due by the Depositary in
accordance with the terms of the Deposit Agreement and this Agreement, (i)
to
proceed directly against the Depositary by making a demand to the Depositary
for
the portion of such payment that would have been distributed to such
Receiptholder pursuant to this Agreement or by bringing suit to enforce
payment
of such portion and (ii) to enforce any other rights that the Escrow Agent
may
have in respect of amounts due from the Depositary under the Deposit Agreement
and this Agreement that would have been distributed to such Receiptholder
pursuant to this Agreement. Any recovery on such enforcement action shall belong
solely to the Receiptholder who brought such action, and not to the Escrow
Agent
or any other Receiptholder individually or to Receiptholders as a
group.
IN
WITNESS WHEREOF, the Escrow Agent, the Paying Agent, the Underwriters and the
Pass Through Trustee have caused this Escrow and Paying Agent Agreement (Class
B) to be duly executed as of the day and year first above written.
|
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as
Escrow Agent
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
MORGAN
STANLEY & CO. INCORPORATED, CREDIT SUISSE SECURITIES (USA) LLC,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, CITIGROUP GLOBAL
MARKETS INC., UBS SECURITIES INC., CALYON SECURITIES (USA) INC. and
J.P.
MORGAN SECURITIES INC.
as Underwriters
|
|||
|
By:
MORGAN STANLEY & CO. INCORPORATED
|
|||
|
By
|
|||
|
Name:
|
Patrick
Käufer
|
||
|
Title:
|
Managing
Director
|
||
|
By:
CREDIT SUISSE SECURITIES (USA) LLC
|
|||
|
By
|
|||
|
Name:
|
James
Palen
|
||
|
Title:
|
Director
|
||
|
WILMINGTON
TRUST COMPANY, not in its individual capacity, but solely as Pass
Through
Trustee for and on behalf of Continental Airlines Pass Through Trust
2007-1B-O
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
WILMINGTON
TRUST COMPANY,
as
Paying Agent
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
CONTINENTAL
AIRLINES 2007-1B ESCROW RECEIPT
No.
__
This
Escrow Receipt evidences a fractional undivided interest in amounts
(“Account
Amounts”)
from
time to time deposited on behalf of the holder hereof into a certain paying
agent account (the “Paying
Agent Account”)
described in the Escrow and Paying Agent Agreement (Class B) dated as of April
10, 2007 (as amended, modified or supplemented from time to time, the
“Escrow
and Paying Agent Agreement”)
among
Wells Fargo Bank Northwest, National Association, as Escrow Agent (in such
capacity, together with its successors in such capacity, the “Escrow
Agent”),
Morgan Stanley & Co. Incorporated, Credit Suisse Securities (USA) LLC,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets
Inc., UBS Securities LLC, Calyon Securities (USA) Inc. and J.P. Morgan
Securities Inc., as Underwriters, Wilmington Trust Company, as Pass Through
Trustee (in such capacity, together with its successors in such capacity, the
“Pass
Through Trustee”)
and
Wilmington Trust Company, as paying agent (in such capacity, together with
its
successors in such capacity, the “Paying
Agent”).
Capitalized terms not defined herein shall have the meanings assigned to them
in
the Escrow and Paying Agent Agreement.
This
Escrow Receipt is issued under and is subject to the terms, provisions and
conditions of the Escrow and Paying Agent Agreement. By virtue of its acceptance
hereof the holder of this Escrow Receipt assents and agrees to be bound by
the
provisions of the Escrow and Paying Agent Agreement and this Escrow
Receipt.
This
Escrow Receipt represents a fractional undivided interest in amounts deposited
from time to time in the Paying Agent Account, and grants or represents no
rights, benefits or interests of any kind in respect of any assets or property
other than such amounts. This Escrow Receipt evidences the same percentage
interest in the Account Amounts as the Fractional Undivided Interest in the
Pass
Through Trust evidenced by the Certificate to which this Escrow Receipt is
affixed.
All
payments and distributions made to Receiptholders in respect of the Escrow
Receipt shall be made only from Account Amounts deposited in the Paying Agent
Account. The holder of this Escrow Receipt, by its acceptance of this Escrow
Receipt, agrees that it will look solely to the Account Amounts for any payment
or distribution due to it pursuant to this Escrow Receipt (or, in case the
Depositary shall default in its obligation to make a payment under the Deposit
Agreement that would be an Account Amount, to the Depositary) and that it will
not have any recourse to Continental, the Pass Through Trustee, the Paying
Agent
or the Escrow Agent, except as expressly provided herein or in the Pass Through
Trust Agreement. No Receiptholder of this Escrow Receipt shall have any right
to
vote or in any manner otherwise control the operation and management of the
Paying Agent Account, nor shall anything set forth herein, or contained in
the
terms of this Escrow Receipt, be construed so as to constitute the
Receiptholders from time to time as partners or members of an association.
This
Escrow Receipt may not be assigned or transferred except in connection with
the
assignment or transfer of the Certificate to which this Escrow Receipt is
affixed. After
payment
to the holder hereof of its Escrow Interest in the Final Distribution, upon
the
request of the Pass Through Trustee, the holder hereof will return this Escrow
Receipt to the Pass Through Trustee.
The
Paying Agent may treat the person in whose name the Certificate to which this
Escrow Receipt is attached as the owner hereof for all purposes, and the Paying
Agent shall not be affected by any notice to the contrary.
THIS
ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK.
IN
WITNESS WHEREOF, the Escrow Agent has caused this Escrow Receipt to be duly
executed.
Dated:
April 10, 2007
|
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as
Escrow Agent
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
WITHDRAWAL
CERTIFICATE
(Class
B)
Wells
Fargo Bank Northwest, National Association
as
Escrow
Agent
Dear
Sirs:
Reference
is made to the Escrow and Paying Agent Agreement, dated as of April 10, 2007
(the “Agreement”). [We hereby certify to you that the conditions to the
obligations of the undersigned to execute a Participation Agreement pursuant
to
the Note Purchase Agreement have been satisfied] [We hereby notify you that
the
Depositary is being replaced in accordance with Section 4(a)(vii) of the Note
Purchase Agreement]. Pursuant to Section [1.02(c)][1.02(d)] of the Agreement,
please execute the attached [Notice of Purchase Withdrawal][Notice of
Replacement Withdrawal] and immediately transmit by facsimile to the Depositary,
at [__________], Attention: [__________].
|
Very
truly yours,
|
|||
|
WILMINGTON
TRUST COMPANY,
not
in its individual capacity but solely as Pass Through
Trustee
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Dated:
____________, 200_
ESCROW
AND PAYING AGENT AGREEMENT
(Class
C)
Dated
as
of April 10, 2007
among
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as
Escrow
Agent
MORGAN
STANLEY & CO. INCORPORATED,
CREDIT
SUISSE SECURITIES (USA) LLC,
MERRILL
LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
CITIGROUP
GLOBAL MARKETS INC.,
UBS
SECURITIES LLC,
CALYON
SECURITIES (USA) INC.
and
J.P.
MORGAN SECURITIES INC.
as
Underwriters
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity,
but
solely as Pass Through Trustee
for
and
on behalf of
Continental
Airlines Pass Through Trust 2007-1C-O
as
Pass
Through Trustee
and
WILMINGTON
TRUST COMPANY
as
Paying
Agent
cv
|
Exhibit
A
|
|
|
Exhibit
B
|
ESCROW
AND PAYING AGENT AGREEMENT (Class C) dated as of April 10, 2007 (as amended,
modified or supplemented from time to time, this “Agreement”)
among
WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, a national banking
association, as Escrow Agent (in such capacity, together with its successors
in
such capacity, the “Escrow
Agent”);
MORGAN STANLEY & CO. INCORPORATED, CREDIT SUISSE SECURITIES (USA) LLC,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, CITIGROUP GLOBAL MARKETS
INC., UBS SECURITIES LLC, CALYON SECURITIES (USA) INC. and J.P. MORGAN
SECURITIES INC. as Underwriters of the Certificates referred to below (the
“Underwriters”
and
together with their respective transferees and assigns as registered owners
of
the Certificates, the “Investors”)
under
the Underwriting Agreement referred to below; WILMINGTON TRUST COMPANY, a
Delaware banking corporation, not in its individual capacity except as otherwise
expressly provided herein, but solely as trustee (in such capacity, together
with its successors in such capacity, the “Pass
Through Trustee”)
under
the Pass Through Trust Agreement referred to below; and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as paying agent hereunder (in such
capacity, together with its successors in such capacity, the “Paying
Agent”).
WITNESSETH
WHEREAS,
Continental Airlines, Inc. (“Continental”)
and
the Pass Through Trustee have entered into a Trust Supplement, dated as of
April
10, 2007 (the “Trust
Supplement”),
to
the Pass Through Trust Agreement, dated as of September 25, 1997 (together,
as
amended, modified or supplemented from time to time in accordance with the
terms
thereof, the “Pass
Through Trust Agreement”)
relating to Continental Airlines Pass Through Trust 2007-1C-O (the “Pass
Through Trust”)
pursuant to which the Continental Airlines Pass Through Trust, Series 2007-1C-O
Certificates referred to therein (the “Certificates”)
are
being issued (the date of such issuance, the “Issuance
Date”);
WHEREAS,
Continental and the Underwriters have entered into an Underwriting Agreement
dated as of March 27, 2007 (as amended, modified or supplemented from time
to
time in accordance with the terms thereof, the “Underwriting
Agreement”)
pursuant to which the Pass Through Trustee will issue and sell the Certificates
to the Underwriters;
WHEREAS,
Continental, the Pass Through Trustee, certain other pass through trustees
and
certain other persons concurrently herewith are entering into the Note Purchase
Agreement, dated as of the date hereof (the “Note
Purchase Agreement”),
pursuant to which the Pass Through Trustee has agreed to acquire from time
to
time on or prior to the Delivery Period Termination Date (as defined in the
Note
Purchase Agreement) equipment notes (the “Equipment
Notes”)
issued
to finance the acquisition of aircraft by Continental, as owner, utilizing
a
portion of the proceeds from the sale of the Certificates (the “Net
Proceeds”);
WHEREAS,
the Underwriters and the Pass Through Trustee intend that the Net Proceeds
be
held in escrow by the Escrow Agent on behalf of the Investors, subject to
withdrawal upon request by the Pass Through Trustee and satisfaction of the
conditions set forth in the Note Purchase Agreement for the purpose of
purchasing Equipment Notes, and that pending such withdrawal the Net Proceeds
be
deposited on behalf of the Escrow Agent with Credit Suisse, New York Branch,
as
Depositary (the “Depositary”,
which
shall also be deemed to
refer
to
any Replacement Depositary (as defined in the Note Purchase Agreement) from
and
after the date on which the Deposits are transferred to such Replacement
Depositary) under the Deposit Agreement, dated as of the date hereof between
the
Depositary and the Escrow Agent relating to the Pass Through Trust (as amended,
modified, supplemented or replaced from time to time in accordance with the
terms thereof, the “Deposit
Agreement”,
which
shall also be deemed to refer to any Replacement Deposit Agreement (as defined
in the Note Purchase Agreement) to which the Escrow Agent becomes a party
pursuant to Section 1.02(a) hereof from and after the transfer of the Deposits
from the Depositary to the Replacement Depositary) pursuant to which, among
other things, the Depositary will pay interest for distribution to the Investors
and establish accounts from which the Escrow Agent shall make withdrawals upon
request of and proper certification by the Pass Through Trustee;
WHEREAS,
the Escrow Agent wishes to appoint the Paying Agent to pay amounts required
to
be distributed to the Investors in accordance with this Agreement;
and
WHEREAS,
capitalized terms used but not defined herein shall have the meanings ascribed
to such terms in the Pass Through Trust Agreement.
NOW,
THEREFORE, in consideration of the obligations contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION
1. Escrow
Agent.
Section
1.01. Appointment
of Escrow Agent.
Each
of
the Underwriters, for and on behalf of each of the Investors, hereby irrevocably
appoints, authorizes and directs the Escrow Agent to act as escrow agent and
fiduciary hereunder and under the Deposit Agreement for such specific purposes
and with such powers as are specifically delegated to the Escrow Agent by the
terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Any and all money received and held by the Escrow Agent
under this Agreement or the Deposit Agreement shall be held in escrow by the
Escrow Agent in accordance with the terms of this Agreement. This Agreement
is
irrevocable and the Investors' rights with respect to any monies received and
held in escrow by the Escrow Agent under this Agreement or the Deposit Agreement
shall only be as provided under the terms and conditions of this Agreement
and
the Deposit Agreement. The Escrow Agent (which term as used in this sentence
shall include reference to its affiliates and its own and its affiliates'
officers, directors, employees and agents): (a) shall have no duties or
responsibilities except those expressly set forth in this Agreement; (b) shall
not be responsible to the Pass Through Trustee or the Investors for any
recitals, statements, representations or warranties of any person other then
itself contained in this Agreement or the Deposit Agreement or for the failure
by the Pass Through Trustee, the Investors or any other person or entity (other
than the Escrow Agent) to perform any of its obligations hereunder (whether
or
not the Escrow Agent shall have any knowledge thereof); and (c) shall not be
responsible for any action taken or omitted to be taken by it hereunder or
provided for herein or in connection herewith, except for its own willful
misconduct or gross negligence (or simple negligence in connection with the
handling of funds).
Section
1.02. Instruction;
Etc.
The
Underwriters, for and on behalf of each of the Investors, hereby irrevocably
instruct the Escrow Agent, and the Escrow Agent agrees:
(a)
to
enter into the Deposit Agreement, and, if requested by the Company pursuant
to
Section 4(a)(vii) of the Note Purchase Agreement, to enter into a Replacement
Deposit Agreement with the Replacement Depositary specified by the
Company;
(b)
to
appoint the Paying Agent as provided in this Agreement;
(c)
upon
receipt at any time and from time to time prior to the Termination Date (as
defined below) of a certificate substantially in the form of Exhibit B hereto
(a
“Withdrawal
Certificate”)
executed by the Pass Through Trustee, together with an attached Notice of
Purchase Withdrawal in substantially the form of Exhibit A to the Deposit
Agreement duly completed by the Pass Through Trustee (the “Applicable
Notice of Purchase Withdrawal”
and
the
withdrawal to which it relates, a “Purchase
Withdrawal”),
immediately to execute the Applicable Notice of Purchase Withdrawal as Escrow
Agent and transmit it to the Depositary by facsimile transmission in accordance
with the Deposit Agreement; provided
that,
upon the request of the Pass Through Trustee after such transmission, the Escrow
Agent shall cancel such Applicable Notice of Purchase Withdrawal;
(d)
upon
receipt of a Withdrawal Certificate executed by the Pass Through Trustee,
together with an attached Notice of Replacement Withdrawal in substantially
the
form of Exhibit C to the Deposit Agreement duly completed by the Pass Through
Trustee, to:
(X)
give
such Notice of Replacement Withdrawal to the Depositary requesting a withdrawal,
on the date specified in such notice, which shall not be less than five Business
Days after such notice is given (the “Replacement
Withdrawal Date”),
of
all Deposits then held by the Depositary together with all accrued and unpaid
interest on such Deposits to but excluding the Replacement Withdrawal Date;
and
(Y)
direct the Depositary to transfer such Deposits and accrued interest on behalf
of the Escrow Agent to the Replacement Depositary in accordance with the
Replacement Deposit Agreement; and
(e)
if
there are any undrawn Deposits (as defined in the Deposit Agreement) on the
“Termination
Date”,
which
shall mean the earlier of (i) September 30, 2009 (provided that, if a labor
strike occurs or continues at The Boeing Company after the Issuance Date and
prior to September 30, 2009 (a “Labor
Strike”),
such
date shall be extended by adding thereto the number of days that such strike
continued in effect after the Issuance Date (the “Additional
Days”)
and
(ii) the day on which the Escrow Agent receives notice from the Pass Through
Trustee that the Pass Through Trustee's obligation to purchase Equipment Notes
under the Note Purchase Agreement has terminated, to immediately give notice
to
the Depositary (with a copy to the Paying Agent) substantially in the form
of
Exhibit B to the Deposit Agreement requesting a withdrawal of all of the
remaining
Deposits, together with accrued and unpaid interest on such Deposits to the
date
of withdrawal, on the 25th
day
after the date that such notice of withdrawal is given to the Depositary (or,
if
not a Business Day, on the next succeeding Business Day) (a “Final
Withdrawal”),
provided
that if
the day scheduled for the Final Withdrawal in accordance with the foregoing
is
within 10 days before or after a Regular Distribution Date, then the Escrow
Agent shall request that such requested Final Withdrawal be made on such Regular
Distribution Date (the date of such requested withdrawal, the “Final
Withdrawal Date”).
If
for
any reason the Escrow Agent shall have failed to give the Final Withdrawal
Notice to the Depositary on or before October 9, 2009 (provided
that if
a Labor Strike occurs or continues, such date shall be extended by the
Additional Days), and there are unwithdrawn Deposits on such date, the Final
Withdrawal Date shall be deemed to be October 31, 2009 (provided
that if
a Labor Strike occurs or continues, such date shall be extended by the
Additional Days).
Section
1.03. Initial
Escrow Amount; Issuance of Escrow Receipts.
The
Escrow Agent hereby directs the Underwriters to, and the Underwriters hereby
acknowledge that on the date hereof they shall, irrevocably deliver to the
Depositary on behalf of the Escrow Agent, an amount in U.S. dollars
(“Dollars”)
and
immediately available funds equal to $168,198,000 for deposit on behalf of
the
Escrow Agent with the Depositary in accordance with Section 2.1 of the Deposit
Agreement. The Underwriters hereby instruct the Escrow Agent, upon receipt
of
such sum from the Underwriters, to confirm such receipt by executing and
delivering to the Pass Through Trustee an Escrow Receipt in the form of Exhibit
A hereto (an “Escrow
Receipt”),
(a)
to be affixed by the Pass Through Trustee to each Certificate and (b) to
evidence the same percentage interest (the “Escrow
Interest”)
in the
Account Amounts (as defined below) as the Fractional Undivided Interest in
the
Pass Through Trust evidenced by the Certificate to which it is to be affixed.
The Escrow Agent shall provide to the Pass Through Trustee for attachment to
each Certificate newly issued under and in accordance with the Pass Through
Trust Agreement an executed Escrow Receipt as the Pass Through Trustee may
from
time to time request of the Escrow Agent. Each Escrow Receipt shall be
registered by the Escrow Agent in a register (the “Register”)
maintained by the Escrow Agent in the name of the same holder that is the holder
of the Certificate to which it is attached and may not thereafter be detached
from such Certificate to which it is to be affixed prior to the distribution
of
the Final Withdrawal (the “Final
Distribution”).
After
the Final Distribution, no additional Escrow Receipts shall be issued and the
Pass Through Trustee shall request the return to the Escrow Agent for
cancellation of all outstanding Escrow Receipts.
Section
1.04. Payments
to Receiptholders.
All
payments and distributions made to holders of an Escrow Receipt (collectively
“Receiptholders”)
in
respect of the Escrow Receipt shall be made only from amounts deposited in
the
Paying Agent Account (as defined below) (“Account
Amounts”).
Each
Receiptholder, by its acceptance of an Escrow Receipt, agrees that (a) it will
look solely to the Account Amounts for any payment or distribution due to such
Receiptholder pursuant to the terms of the Escrow Receipt and this Agreement
(subject to Section 15 hereof) and (b) it will have no recourse to Continental,
the Pass Through Trustee, the Paying Agent or the Escrow Agent, except as
expressly provided herein or in the Pass Through Trust Agreement. No
Receiptholder shall have any right to vote or in any manner otherwise control
the operation and management of the Paying Agent Account or the obligations
of
the
parties
hereto, nor shall anything set forth herein, or contained in the terms of the
Escrow Receipt, be construed so as to constitute the Receiptholders from time
to
time as partners or members of an association.
Section
1.05. Mutilated,
Destroyed, Lost or Stolen Escrow Receipt.
If
(a)
any mutilated Escrow Receipt is surrendered to the Escrow Agent or the Escrow
Agent receives evidence to its satisfaction of the destruction, loss or theft
of
any Escrow Receipt and (b) there is delivered to the Escrow Agent and the
Pass Through Trustee such security, indemnity or bond, as may be required by
them to hold each of them harmless, then, absent notice to the Escrow Agent
or
the Pass Through Trustee that such destroyed, lost or stolen Escrow Receipt
has
been acquired by a bona fide purchaser, and provided that the requirements
of
Section 8-405 of the Uniform Commercial Code in effect in any applicable
jurisdiction are met, the Escrow Agent shall execute, authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Escrow Receipt, a new Escrow Receipt or Escrow Receipts and of like Escrow
Interest in the Account Amounts and bearing a number not contemporaneously
outstanding.
In
connection with the issuance of any new Escrow Receipt under this Section 1.05,
the Escrow Agent may require the payment of a sum sufficient to cover any tax
or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Pass Through Trustee and the
Escrow Agent) connected therewith.
Any
duplicate Escrow Receipt issued pursuant to this Section 1.05 shall constitute
conclusive evidence of the appropriate Escrow Interest in the Account Amounts,
as if originally issued, whether or not the lost, stolen or destroyed Escrow
Receipt shall be found at any time.
The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Escrow Receipts.
Section
1.06. Additional
Escrow Amounts.
On
the
date of any Purchase Withdrawal, the Pass Through Trustee may re-deposit with
the Depositary some or all of the amounts so withdrawn in accordance with
Section 2.5 of the Deposit Agreement.
Section
1.07. Resignation
or Removal of Escrow Agent.
Subject
to the appointment and acceptance of a successor Escrow Agent as provided below,
the Escrow Agent may resign at any time by giving 30 days' prior written notice
thereof to the Investors, but may not otherwise be removed except for cause
by
the written consent of the Investors with respect to Investors representing
Escrow Interests aggregating not less than a majority in interest in the Account
Amounts (an “Action
of Investors”).
Upon
any such resignation or removal, the Investors, by an Action of Investors,
shall
have the right to appoint a successor Escrow Agent. If no successor Escrow
Agent
shall have been so appointed and shall have accepted such appointment within
30
days after the retiring Escrow Agent's giving of notice of resignation or the
removal of the retiring Escrow Agent, then the retiring Escrow Agent may appoint
a successor Escrow Agent. Any successor Escrow Agent shall be a bank which
has
an office in the United States with a combined capital and surplus of at least
$100,000,000. Upon the acceptance of any appointment as Escrow Agent hereunder
by a successor Escrow Agent, such successor Escrow Agent shall enter into such
documents as the Pass Through Trustee shall
require
and shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Escrow Agent, and the retiring Escrow
Agent shall be discharged from its duties and obligations hereunder. No
resignation or removal of the Escrow Agent shall be effective unless a written
confirmation shall have been obtained from each of Moody's Investors Service,
Inc. and Standard & Poor's Ratings Services, a division of The McGraw-Hill
Companies, Inc., that the replacement of the Escrow Agent with the successor
Escrow Agent will not result in (a) a reduction of the rating for the
Certificates below the then current rating for the Certificates or (b) a
withdrawal or suspension of the rating of the Certificates.
Section
1.08. Persons
Deemed Owners.
Prior
to
due presentment of a Certificate for registration of transfer, the Escrow Agent
and the Paying Agent may treat the Person in whose name any Escrow Receipt
is
registered (as of the day of determination) as the owner of such Escrow Receipt
for the purpose of receiving distributions pursuant to this Agreement and for
all other purposes whatsoever, and neither the Escrow Agent nor the Paying
Agent
shall be affected by any notice to the contrary.
Section
1.09. Further
Assurances.
The
Escrow Agent agrees to take such actions, and execute such other documents,
as
may be reasonably requested by the Pass Through Trustee in order to effectuate
the purposes of this Agreement and the performance by the Escrow Agent of its
obligations hereunder.
SECTION
2. Paying
Agent.
Section
2.01. Appointment
of Paying Agent.
The
Escrow Agent hereby irrevocably appoints and authorizes the Paying Agent to
act
as its paying agent hereunder, for the benefit of the Investors, for such
specific purposes and with such powers as are specifically delegated to the
Paying Agent by the terms of this Agreement, together with such other powers
as
are reasonably incidental thereto. Any and all money received and held by the
Paying Agent under this Agreement or the Deposit Agreement shall be held in
the
Paying Agent Account for the benefit of the Investors. The Paying Agent (which
term as used in this sentence shall include reference to its affiliates and
its
own and its affiliates' officers, directors, employees and agents): (a) shall
have no duties or responsibilities except those expressly set forth in this
Agreement, and shall not by reason of this Agreement be a trustee for the Escrow
Agent; (b) shall not be responsible to the Escrow Agent for any recitals,
statements, representations or warranties of any person other then itself
contained in this Agreement or for the failure by the Escrow Agent or any other
person or entity (other than the Paying Agent) to perform any of its obligations
hereunder (whether or not the Paying Agent shall have any knowledge thereof);
and (c) shall not be responsible for any action taken or omitted to be taken
by
it hereunder or provided for herein or in connection herewith, except for its
own willful misconduct or gross negligence (or simple negligence in connection
with the handling of funds).
Section
2.02. Establishment
of Paying Agent Account.
The
Paying Agent shall establish a deposit account (the “Paying
Agent Account”)
at
Wilmington Trust Company in the name of the Escrow Agent. It is expressly
understood by the parties hereto that the Paying Agent is acting as the paying
agent of the Escrow Agent hereunder and that no amounts on deposit in the Paying
Agent Account constitute part of the Trust Property.
Section
2.03. Payments
from Paying Agent Account.
The
Escrow Agent hereby irrevocably instructs the Paying Agent, and the Paying
Agent
agrees to act, as follows:
(a) On
each
Interest Payment Date (as defined in the Deposit Agreement) or as soon
thereafter as the Paying Agent has confirmed receipt in the Paying Agent Account
from the Depositary of any amount in respect of accrued interest on the
Deposits, the Paying Agent shall distribute out of the Paying Agent Account
the
entire amount deposited therein by the Depositary. There shall be so distributed
to each Receiptholder of record on the 15th day (whether or not a Business
Day)
preceding such Interest Payment Date by check mailed to such Receiptholder,
at
the address appearing in the Register, such Receiptholder's pro rata share
(based on the Escrow Interest in the Account Amounts held by such Receiptholder)
of the total amount of interest deposited by the Depositary in the Paying Agent
Account on such date, except that, with respect to Escrow Receipts registered
on
the Record Date in the name of The Depository Trust Company (“DTC”),
such
distribution shall be made by wire transfer in immediately available funds
to
the account designated by DTC.
(b) Upon
the
confirmation by the Paying Agent of receipt in the Paying Agent Account from
the
Depositary of any amount in respect of the Final Withdrawal, the Paying Agent
shall forthwith distribute the entire amount of the Final Withdrawal deposited
therein by the Depositary. There shall be so distributed to each Receiptholder
of record on the 15th day (whether or not a Business Day) preceding the Final
Withdrawal Date by check mailed to such Receiptholder, at the address appearing
in the Register, such Receiptholder's pro rata share (based on the Escrow
Interest in the Account Amounts held by such Receiptholder) of the total amount
in the Paying Agent Account on account of such Final Withdrawal, except that,
with respect to Escrow Receipts registered on the Record Date in the name of
DTC, such distribution shall be made by wire transfer in immediately available
funds to the account designated by DTC.
(c) If
any
payment of interest or principal in respect of the Final Withdrawal is not
received by the Paying Agent within five days of the applicable date when due,
then it shall be distributed to Receiptholders after actual receipt by the
Paying Agent on the same basis as a Special Payment is distributed under the
Pass Through Trust Agreement.
(d) The
Paying Agent shall include with any check mailed pursuant to this Section any
notice required to be distributed under the Pass Through Trust Agreement that
is
furnished to the Paying Agent by the Pass Through Trustee.
Section
2.04. Withholding
Taxes.
The
Paying Agent shall exclude and withhold from each distribution of accrued
interest on the Deposits (as defined in the Deposit Agreement) and any amount
in
respect of the Final Withdrawal any and all withholding taxes applicable thereto
as required by law. The Paying Agent agrees to act as such withholding agent
and, in connection therewith, whenever any present or future taxes or similar
charges are required to be withheld with respect to any amounts payable in
respect of the Deposits (as defined in the Deposit Agreement) or the escrow
amounts, to withhold such amounts and timely pay the same to the appropriate
authority in the name of and on behalf of the Receiptholders, that it will
file
any necessary withholding tax returns or statements when due, and that, as
promptly as possible after the payment thereof, it will deliver to each such
Receiptholder appropriate documentation showing the payment thereof, together
with such additional documentary evidence as such Receiptholder may reasonably
request from time to time. The Paying Agent agrees to file any other information
reports as it may be required to file under United States law.
Section
2.05. Resignation
or Removal of Paying Agent.
Subject
to the appointment and acceptance of a successor Paying Agent as provided below,
the Paying Agent may resign at any time by giving 30 days' prior written notice
thereof to the Escrow Agent, but may not otherwise be removed except for cause
by the Escrow Agent. Upon any such resignation or removal, the Escrow Agent
shall have the right to appoint a successor Paying Agent. If no successor Paying
Agent shall have been so appointed and shall have accepted such appointment
within 30 days after the retiring Paying Agent's giving of notice of resignation
or the removal of the retiring Paying Agent, then the retiring Paying Agent
may
appoint a successor Paying Agent. Any successor Paying Agent shall be a bank
which has an office in the United States with a combined capital and surplus
of
at least $100,000,000. Upon the acceptance of any appointment as Paying Agent
hereunder by a successor Paying Agent, such successor Paying Agent shall enter
into such documents as the Escrow Agent shall require and shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Paying Agent, and the retiring Paying Agent shall be discharged
from its duties and obligations hereunder.
Section
2.06. Notice
of Final Withdrawal.
Promptly
after receipt by the Paying Agent of notice that the Escrow Agent has requested
a Final Withdrawal or that a Final Withdrawal will be made, the Paying Agent
shall cause notice of the distribution of the Final Withdrawal to be mailed
to
each of the Receiptholders at its address as it appears in the Register. Such
notice shall be mailed not less than 15 days prior to the Final Withdrawal
Date.
Such notice shall set forth:
(i) the
Final
Withdrawal Date and the date for determining Receiptholders of record who shall
be entitled to receive distributions in respect of the Final Withdrawal,
(ii) the
amount of the payment in respect of the Final Withdrawal for each $1,000 face
amount Certificate (based on information provided by the Pass Through Trustee)
and the amount thereof constituting unused Deposits (as defined in the Deposit
Agreement) and interest thereon, and
(iii) if
the
Final Withdrawal 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 Certificate (based on information provided by the Pass Through
Trustee).
Such
mailing may include any notice required to be given to Certificateholders in
connection with such distribution pursuant to the Pass Through Trust
Agreement.
SECTION
3. Payments.
If,
notwithstanding the instructions in Section 4 of the Deposit Agreement that
all
amounts payable to the Escrow Agent under the Deposit Agreement be paid by
the
Depositary directly to the Paying Agent, the Pass Through Trustee or a
Replacement Depositary (depending on the circumstances), the Escrow Agent
receives any payment thereunder, then the Escrow Agent shall forthwith pay
such
amount in Dollars and in immediately available funds by wire transfer to (a)
in
the case of a payment of accrued interest on the Deposits (as defined in the
Deposit Agreement) or any Final Withdrawal, directly to the Paying Agent
Account, (b) in the case of any Purchase Withdrawal, directly to the Pass
Through Trustee or its designee as specified and in the manner provided in
the
Applicable Notice of Purchase Withdrawal and (c) in the case of any Replacement
Withdrawal, to the Replacement Depositary as provided in the Replacement
Depositary Agreement. The Escrow Agent hereby waives any and all rights of
set-off, combination of accounts, right of retention or similar right (whether
arising under applicable law, contract or otherwise) it may have against amounts
payable to the Paying Agent howsoever arising.
SECTION
4. Other
Actions.
The
Escrow Agent shall take such other actions under or in respect of the Deposit
Agreement (including, without limitation, the enforcement of the obligations
of
the Depositary thereunder) as the Investors, by an Action of Investors, may
from
time to time request.
SECTION
5. Representations
and Warranties of the Escrow Agent.
The
Escrow Agent represents and warrants to Continental, the Investors, the Paying
Agent and the Pass Through Trustee as follows:
(i) it
is a
national banking association duly organized and validly existing in good
standing under the laws of the United States of America;
(ii) it
has
full power, authority and legal right to conduct its business and operations
as
currently conducted and to enter into and perform its obligations under this
Agreement, the Deposit Agreement and any Replacement Deposit
Agreement;
(iii) the
execution, delivery and performance of each of this Agreement, the Deposit
Agreement and any Replacement Deposit Agreement have been duly authorized by
all
necessary corporate action on the part of it and do not require any stockholder
approval, or approval or consent of any trustee or holder of any indebtedness
or
obligations of it, and each such document (other than a Replacement Deposit
Agreement) has been duly executed and delivered by it and constitutes its legal,
valid and binding obligations enforceable against it in accordance with the
terms hereof or thereof except as such enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the enforcement
of
creditors' rights generally (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iv) no
authorization, consent or approval of or other action by, and no notice to
or
filing with, any United States federal or state governmental authority or
regulatory body is required for the execution, delivery or performance by it
of
this Agreement, the Deposit Agreement or any Replacement Deposit
Agreement;
(v) neither
the execution, delivery or performance by it of this Agreement, the Deposit
Agreement or any Replacement Deposit Agreement, nor compliance with the terms
and provisions hereof or thereof, conflicts or will conflict with or results
or
will result in a breach or violation of any of the terms, conditions or
provisions of, or will require any consent or approval under, any law,
governmental rule or regulation or the charter documents, as amended, or bylaws,
as amended, of it or any similar instrument binding on it or any order, writ,
injunction or decree of any court or governmental authority against it or by
which it or any of its properties is bound or any indenture, mortgage or
contract or other agreement or instrument to which it is a party or by which
it
or any of its properties is bound, or constitutes or will constitute a default
thereunder or results or will result in the imposition of any lien upon any
of
its properties; and
(vi) there
are
no pending or, to its knowledge, threatened actions, suits, investigations
or
proceedings (whether or not purportedly on behalf of it) against or affecting
it
or any of its property before or by any court or administrative agency which,
if
adversely determined, (A) would adversely affect the ability of it to perform
its obligations under this Agreement, the Deposit Agreement or any Replacement
Deposit Agreement or (B) would call into question or challenge the validity
of
this Agreement or the Deposit Agreement or the enforceability hereof or thereof
in accordance with the terms hereof or thereof, nor is the Escrow Agent in
default with respect to any order of any court, governmental authority,
arbitration board or administrative agency so as to adversely affect its ability
to perform its obligations under this Agreement or the Deposit
Agreement.
SECTION
6. Representations
and Warranties of the Paying Agent.
The
Paying Agent represents and warrants to Continental, the Investors, the Escrow
Agent and the Pass Through Trustee as follows:
(i) it
is a
Delaware banking company duly organized and validly existing in good standing
under the laws of its jurisdiction of incorporation;
(ii) it
has
full power, authority and legal right to conduct its business and operations
as
currently conducted and to enter into and perform its obligations under this
Agreement;
(iii) the
execution, delivery and performance of this Agreement has been duly authorized
by all necessary corporate action on the part of it and does not require any
stockholder approval, or approval or consent of any trustee or holder of any
indebtedness or obligations of it, and such document has been duly executed
and
delivered by it and constitutes its legal, valid and binding obligations
enforceable against it in accordance with the terms hereof except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws or equitable principles of general
application to or affecting the enforcement of creditors' rights generally
(regardless of whether such enforceability is considered in a proceeding in
equity or at law);
(iv) no
authorization, consent or approval of or other action by, and no notice to
or
filing with, any United States federal or state governmental authority or
regulatory body is required for the execution, delivery or performance by it
of
this Agreement;
(v) neither
the execution, delivery or performance by it of this Agreement, nor compliance
with the terms and provisions hereof, conflicts or will conflict with or results
or will result in a breach or violation of any of the terms, conditions or
provisions of, or will require any consent or approval under, any law,
governmental rule or regulation or the charter documents, as amended, or bylaws,
as amended, of it or any similar instrument binding on it or any order, writ,
injunction or decree of any court or governmental authority against it or by
which it or any of its properties is bound or any indenture, mortgage or
contract or other agreement or instrument to which it is a party or by which
it
or any of its properties is bound, or constitutes or will constitute a default
thereunder or results or will result in the imposition of any lien upon any
of
its properties; and
(vi) there
are
no pending or, to its knowledge, threatened actions, suits, investigations
or
proceedings (whether or not purportedly on behalf of it) against or affecting
it
or any of its property before or by any court or administrative agency which,
if
adversely determined, (A) would adversely affect the ability of it to perform
its obligations under this Agreement or (B) would call into question or
challenge the validity of this Agreement or the enforceability hereof in
accordance with the terms hereof, nor is the Paying Agent in default with
respect to any order of any court, governmental authority, arbitration board
or
administrative agency so as to adversely affect its ability to perform its
obligations under this Agreement.
SECTION
7. Indemnification.
Except
for actions expressly required of the Escrow Agent or the Paying Agent
hereunder, each of the Escrow Agent and the Paying Agent shall in all cases
be
fully justified in failing or refusing to act hereunder unless it shall have
been indemnified by the party requesting such action in a manner reasonably
satisfactory to it against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. In
the
event Continental requests any amendment to any Operative Agreement (as defined
in the Note Purchase Agreement), the Pass Through Trustee agrees to pay all
reasonable fees and expenses (including, without limitation, fees and
disbursements of counsel) of the Escrow Agent and the Paying Agent in connection
therewith.
SECTION
8. Amendment,
Etc.
Upon
request of the Pass Through Trustee and approval by an Action of Investors,
the
Escrow Agent and Paying Agent shall enter into an amendment to this Agreement,
so long as such amendment does not adversely affect the rights or obligations
of
the Escrow Agent or the Paying Agent, provided
that
upon request of the Pass Through Trustee and without any consent of the
Investors, the Escrow Agent and Paying Agent shall enter into an amendment
to
this Agreement for any of the following purposes:
(1) to
correct or supplement any provision in this Agreement which may be defective
or
inconsistent with any other provision herein or to cure any ambiguity or correct
any mistake or to modify any other provision with respect to matters or
questions arising under this Agreement, provided
that any
such action shall not materially adversely affect the interests of the
Investors; or
(2) to
comply
with any requirement of the SEC, applicable law, rules or regulations of any
exchange or quotation system on which the Certificates are listed or any
regulatory body; or
(3) to
evidence and provide for the acceptance of appointment under this Agreement
of a
successor Escrow Agent, successor Paying Agent or successor Pass Through
Trustee.
SECTION
9. Notices.
Unless
otherwise expressly provided herein, any notice or other communication under
this Agreement shall be in writing (including by facsimile) and shall be deemed
to be given and effective upon receipt thereof. All notices shall be sent to
(a)
in the case of the Investors, as their respective addresses shall appear in
the
Register, (b) in the case of the Escrow Agent, Wells Fargo Bank Northwest,
National Association, 299 South Main Street, 12th Floor, Salt Lake City, UT
84111, Attention: Corporate Trust Services (Telecopier: (801) 246-5053),
(c) in the case of the Pass Through Trustee, Wilmington Trust Company, 1100
North Market Street, Rodney Square North, Wilmington, DE 19890-1605, Attention:
Corporate Capital Market Services (Telecopier: (302) 636-4140) or (d) in the
case of the Paying Agent, Wilmington Trust Company, 1100 North Market Street,
Rodney Square North, Wilmington, DE 19890-1605, Attention: Corporate Capital
Market Services (Telecopier: (302) 636-4140), in each case with a copy to
Continental, Continental Airlines, Inc., 1600 Smith Street, Dept. HQS-FN,
Houston, TX 77002, Attention: Treasurer (Telecopier: (713) 324-2447) (or at
such
other address as any such party may specify from time to time in a written
notice to the other parties). On or prior to the execution of this Agreement,
the Pass Through Trustee has delivered to the Escrow Agent a certificate
containing specimen signatures of the representatives of the Pass Through
Trustee who are authorized to give notices and instructions with respect to
this
Agreement. The Escrow Agent may conclusively rely on such certificate until
the
Escrow Agent receives written notice from the Pass Through Trustee to the
contrary.
The
Escrow Agent shall notify the Receiptholders in the event of a default in the
payment of interest on the Deposits when due in accordance with the Deposit
Agreement or a default in the payment of any Final Withdrawal in accordance
with
the terms of the Deposit Agreement and this Agreement and shall promptly forward
to Receiptholders upon receipt copies of all written communications relating
to
any payments due to the Receiptholders in respect of the Deposits.
SECTION
10. Transfer.
No
party
hereto shall be entitled to assign or otherwise transfer this Agreement (or
any
interest herein) other than (in the case of the Escrow Agent) to a successor
escrow agent under Section 1.06 hereof or (in the case of the Paying Agent)
to a
successor paying agent under Section 2.04 hereof, and any purported assignment
in violation thereof shall be void. This Agreement shall be binding upon the
parties hereto and their respective successors and (in the case of the Escrow
Agent and the Paying Agent) their respective permitted assigns. Upon the
occurrence of the Transfer (as defined below) contemplated by the Assignment
and
Assumption Agreement (as defined below), the Pass Through Trustee shall (without
further act) be deemed to have transferred all of its right, title and interest
in and to this Agreement to the trustee of the Successor Trust (as defined
below) and, thereafter, the trustee of the Successor Trust shall be deemed
to be
the “Pass Through Trustee” hereunder with the rights and obligations of the
“Pass Through Trustee” hereunder and each reference herein to “Continental
Airlines Pass Through Trust 2007-1C-O” shall be deemed to be a reference to
“Continental Airlines Pass Through Trust 2007-1C-S”. The parties hereto hereby
acknowledge and consent to the Transfer contemplated by the Assignment and
Assumption Agreement. As used herein, “Transfer”
means
the transfers of the assets to the Successor Trust contemplated by the
Assignment and Assumption Agreement; “Assignment
and Assumption Agreement”
means
the Assignment and Assumption Agreement to be entered into between the Pass
Through Trustee and the trustee of the Successor Trust, substantially in the
form of Exhibit C to the Trust Supplement; “Successor
Trust”
means
the Continental Airlines Pass Through Trust 2007-1C-S.
SECTION
11. Entire
Agreement.
This
Agreement sets forth all of the promises, covenants, agreements, conditions
and
understandings among the Escrow Agent, the Paying Agent, the Underwriters and
the Pass Through Trustee with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements and undertakings,
inducements or conditions, express or implied, oral or written.
SECTION
12. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York.
SECTION
13. Waiver
of Jury Trial Right.
EACH
OF
THE ESCROW AGENT, THE PAYING AGENT, THE INVESTORS AND THE PASS THROUGH TRUSTEE
ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF
OR RELATING TO THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A
TRIAL
BY JURY.
SECTION
14. Counterparts.
This
Agreement may be executed in one or more counterparts, all of which taken
together shall constitute one instrument.
SECTION
15. Rights
of Holders.
Each
Receiptholder shall have the right (individually and without the need for any
other action of any Person, including the Escrow Agent or any other
Receiptholder), upon any default in the payment of interest on the Deposits
when
due by the Depositary in accordance with the Deposit Agreement, or upon any
default in the payment of the Final Withdrawal when due by the Depositary in
accordance with the terms of the Deposit Agreement and this Agreement, (i)
to
proceed directly against the Depositary by making a demand to the Depositary
for
the portion of such payment that would have been distributed to such
Receiptholder pursuant to this Agreement or by bringing suit to enforce
payment
of such portion and (ii) to enforce any other rights that the Escrow Agent
may
have in respect of amounts due from the Depositary under the Deposit Agreement
and this Agreement that would have been distributed to such Receiptholder
pursuant to this Agreement. Any recovery on such enforcement action shall belong
solely to the Receiptholder who brought such action, and not to the Escrow
Agent
or any other Receiptholder individually or to Receiptholders as a
group.
IN
WITNESS WHEREOF, the Escrow Agent, the Paying Agent, the Underwriters and the
Pass Through Trustee have caused this Escrow and Paying Agent Agreement (Class
C) to be duly executed as of the day and year first above written.
|
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as
Escrow Agent
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
MORGAN
STANLEY & CO. INCORPORATED, CREDIT SUISSE SECURITIES (USA) LLC,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, CITIGROUP GLOBAL
MARKETS INC., UBS SECURITIES INC., CALYON SECURITIES (USA) INC. and
J.P.
MORGAN SECURITIES INC.
as Underwriters
|
|||
|
By:
MORGAN STANLEY & CO. INCORPORATED
|
|||
|
By
|
|||
|
Name:
|
Patrick
Käufer
|
||
|
Title:
|
Managing
Director
|
||
|
By:
CREDIT SUISSE SECURITIES (USA) LLC
|
|||
|
By
|
|||
|
Name:
|
James
Palen
|
||
|
Title:
|
Director
|
||
|
WILMINGTON
TRUST COMPANY, not in its individual capacity, but solely as Pass
Through
Trustee for and on behalf of Continental Airlines Pass Through Trust
2007-1C-O
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
WILMINGTON
TRUST COMPANY,
as
Paying Agent
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
CONTINENTAL
AIRLINES 2007-1C ESCROW RECEIPT
No.
__
This
Escrow Receipt evidences a fractional undivided interest in amounts
(“Account
Amounts”)
from
time to time deposited on behalf of the holder hereof into a certain paying
agent account (the “Paying
Agent Account”)
described in the Escrow and Paying Agent Agreement (Class C) dated as of April
10, 2007 (as amended, modified or supplemented from time to time, the
“Escrow
and Paying Agent Agreement”)
among
Wells Fargo Bank Northwest, National Association, as Escrow Agent (in such
capacity, together with its successors in such capacity, the “Escrow
Agent”),
Morgan Stanley & Co. Incorporated, Credit Suisse Securities (USA) LLC,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets
Inc., UBS Securities LLC, Calyon Securities (USA) Inc. and J.P. Morgan
Securities Inc., as Underwriters, Wilmington Trust Company, as Pass Through
Trustee (in such capacity, together with its successors in such capacity, the
“Pass
Through Trustee”)
and
Wilmington Trust Company, as paying agent (in such capacity, together with
its
successors in such capacity, the “Paying
Agent”).
Capitalized terms not defined herein shall have the meanings assigned to them
in
the Escrow and Paying Agent Agreement.
This
Escrow Receipt is issued under and is subject to the terms, provisions and
conditions of the Escrow and Paying Agent Agreement. By virtue of its acceptance
hereof the holder of this Escrow Receipt assents and agrees to be bound by
the
provisions of the Escrow and Paying Agent Agreement and this Escrow
Receipt.
This
Escrow Receipt represents a fractional undivided interest in amounts deposited
from time to time in the Paying Agent Account, and grants or represents no
rights, benefits or interests of any kind in respect of any assets or property
other than such amounts. This Escrow Receipt evidences the same percentage
interest in the Account Amounts as the Fractional Undivided Interest in the
Pass
Through Trust evidenced by the Certificate to which this Escrow Receipt is
affixed.
All
payments and distributions made to Receiptholders in respect of the Escrow
Receipt shall be made only from Account Amounts deposited in the Paying Agent
Account. The holder of this Escrow Receipt, by its acceptance of this Escrow
Receipt, agrees that it will look solely to the Account Amounts for any payment
or distribution due to it pursuant to this Escrow Receipt (or, in case the
Depositary shall default in its obligation to make a payment under the Deposit
Agreement that would be an Account Amount, to the Depositary) and that it will
not have any recourse to Continental, the Pass Through Trustee, the Paying
Agent
or the Escrow Agent, except as expressly provided herein or in the Pass Through
Trust Agreement. No Receiptholder of this Escrow Receipt shall have any right
to
vote or in any manner otherwise control the operation and management of the
Paying Agent Account, nor shall anything set forth herein, or contained in
the
terms of this Escrow Receipt, be construed so as to constitute the
Receiptholders from time to time as partners or members of an association.
This
Escrow Receipt may not be assigned or transferred except in connection with
the
assignment or transfer of the Certificate to which this Escrow Receipt is
affixed. After
payment
to the holder hereof of its Escrow Interest in the Final Distribution, upon
the
request of the Pass Through Trustee, the holder hereof will return this Escrow
Receipt to the Pass Through Trustee.
The
Paying Agent may treat the person in whose name the Certificate to which this
Escrow Receipt is attached as the owner hereof for all purposes, and the Paying
Agent shall not be affected by any notice to the contrary.
THIS
ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK.
IN
WITNESS WHEREOF, the Escrow Agent has caused this Escrow Receipt to be duly
executed.
Dated:
April 10, 2007
|
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as Escrow Agent
|
|||
|
By:
|
|||
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Name:
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Title:
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WITHDRAWAL
CERTIFICATE
(Class
C)
Wells
Fargo Bank Northwest, National Association
as
Escrow
Agent
Dear
Sirs:
Reference
is made to the Escrow and Paying Agent Agreement, dated as of April 10, 2007
(the “Agreement”). [We hereby certify to you that the conditions to the
obligations of the undersigned to execute a Participation Agreement pursuant
to
the Note Purchase Agreement have been satisfied] [We hereby notify you that
the
Depositary is being replaced in accordance with Section 4(a)(vii) of the Note
Purchase Agreement]. Pursuant to Section [1.02(c)][1.02(d)] of the Agreement,
please execute the attached [Notice of Purchase Withdrawal][Notice of
Replacement Withdrawal] and immediately transmit by facsimile to the Depositary,
at [__________], Attention: [__________].
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Very
truly yours,
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WILMINGTON
TRUST COMPANY,
not
in its individual capacity but solely as Pass Through
Trustee
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By:
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Name:
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Title:
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Dated:
____________, 200_
NOTE
PURCHASE AGREEMENT
Dated
as of April 10, 2007
Among
CONTINENTAL
AIRLINES, INC.,
WILMINGTON
TRUST COMPANY,
as
Pass Through Trustee under each of the
Pass
Through Trust Agreements
WILMINGTON
TRUST COMPANY,
as
Subordination Agent
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as
Escrow Agent
and
WILMINGTON
TRUST COMPANY,
as
Paying Agent
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Page
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SECTION
1. Financing of New
Aircraft
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3
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SECTION
2. Conditions Precedent
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7
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SECTION
3. Representations and
Warranties
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7
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SECTION
4. Covenants
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12
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SECTION
5. Notices
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16
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SECTION
6. Expenses
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16
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SECTION
7. Further Assurances
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17
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SECTION
8. Miscellaneous
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17
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SECTION
9. Governing Law
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18
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Schedule
I
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Schedule
II
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Schedule
III
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Annex
A
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Exhibit
A
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Exhibit
B
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Exhibit
C
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NOTE
PURCHASE AGREEMENT
This
NOTE PURCHASE AGREEMENT, dated as of April 10, 2007, among (i)CONTINENTAL
AIRLINES, INC., a Delaware corporation (the "Company"),
(ii)WILMINGTON TRUST COMPANY ("WTC"),
a
Delaware banking corporation, not in its individual capacity except as otherwise
expressly provided herein, but solely as trustee (in such capacity together
with
its successors in such capacity, the "Pass
Through Trustee")
under
each of the three separate Pass Through Trust Agreements (as defined below),
(iii) WILMINGTON TRUST COMPANY, a Delaware banking corporation, as subordination
agent and trustee (in such capacity together with its successors in such
capacity, the "Subordination
Agent")
under
the Intercreditor Agreement (as defined below), (iv) WELLS FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION, a national banking association, as Escrow Agent (in such
capacity together with its successors in such capacity, the "Escrow
Agent"),
under
each of the Escrow and Paying Agent Agreements (as defined below) and (v)
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Paying Agent (in
such capacity together with its successors in such capacity, the "Paying
Agent")
under
each of the Escrow and Paying Agent Agreements.
W
I T N E
S S E T H:
WHEREAS,
capitalized terms used but not defined herein shall have the meanings ascribed
to such terms in Annex A hereto;
WHEREAS,
the Company has obtained commitments from the Manufacturer pursuant to the
Aircraft Purchase Agreement for the delivery of the thirty-nine aircraft listed
in Schedule I hereto (together with any aircraft substituted therefor in
accordance with the Aircraft Purchase Agreement prior to the delivery thereof,
the "Eligible
Aircraft"),
and
the Company wishes to finance pursuant to this Agreement a portion of the
purchase price of twelve Boeing 737-824 aircraft and eighteen Boeing 737-924ER
aircraft included in the Eligible Aircraft (such aircraft to be financed
hereunder, the "New
Aircraft");
WHEREAS,
pursuant to the Basic Pass Through Trust Agreement and each of the Trust
Supplements set forth in Schedule II hereto, and concurrently with the execution
and delivery of this Agreement, separate grantor trusts (collectively, the
"Pass
Through Trusts"
and,
individually, a "Pass
Through Trust")
have
been created to facilitate certain of the transactions contemplated hereby,
including, without limitation, the issuance and sale of pass through
certificates
pursuant
thereto (collectively, the "Certificates")
to
provide for a portion of the financing of the New Aircraft;
WHEREAS,
the Company has entered into the Underwriting Agreement, dated as of March
27,
2007 (the "Underwriting
Agreement")
with
the Underwriters named therein (the "Underwriters")
which
provides that the Company will cause the Pass Through Trustee under the Class
A
Pass Through Trust (the "Class
A Pass Through Trustee"),
the
Pass Through Trustee under the Class B Pass Through Trust (the "Class
B Pass Through Trustee")and
the
Pass Through Trustee under the Class C Pass Through Trust (the "Class
C Pass Through Trustee")
to
issue and sell the Class A Certificates, the Class B Certificates and the Class
C Certificates, respectively, to the Underwriters on the Issuance
Date;
WHEREAS,
concurrently with the execution and delivery of this Agreement, (i) the Escrow
Agent and the Depositary have entered into three Deposit Agreements, dated
as of
the Issuance Date, one each relating to the Class A, Class B and Class C Pass
Through Trust (together, the "Deposit
Agreements")
whereby the Escrow Agent agreed to direct the Underwriters to make certain
deposits referred to therein on the Issuance Date (the "Initial
Deposits")
and to
permit the applicable Pass Through Trustees to make additional deposits from
time to time thereafter (the Initial Deposits together with such additional
deposits are collectively referred to as the "Deposits")
and
(ii) the applicable Pass Through Trustees, Underwriters, Paying Agents and
Escrow Agents have entered into three Escrow and Paying Agent Agreements, dated
as of the Issuance Date, one each relating to the Class A, Class B and Class
C
Pass Through Trust (together, the "Escrow
and Paying Agent Agreements"),
whereby, among other things, (a) the Underwriters agreed to deliver an
amount equal to the amount of the Initial Deposits to the Depositary on behalf
of the applicable Escrow Agent and (b) the applicable Escrow Agent, upon
the Depositary receiving such amount, agreed to deliver escrow receipts to
be
affixed to each Certificate;
WHEREAS,
upon receipt of a Delivery Notice with respect to a New Aircraft, subject to
the
terms and conditions of this Agreement, the applicable Pass Through Trustees
will enter into the applicable Financing Agreements relating to such New
Aircraft;
WHEREAS,
upon the financing of each New Aircraft, the Class A, Class B and Class C
Pass Through Trustees each will fund its purchase of Equipment Notes with the
proceeds of one or
more
Deposits withdrawn by the applicable Escrow Agent under the related Deposit
Agreement bearing the same interest rate as the Certificates issued by the
applicable Pass Through Trust; and
WHEREAS,
concurrently with the execution and delivery of this Agreement, (i) RZB Finance
LLC (the "Liquidity
Provider"),
has
entered into two revolving credit agreements, one each for the benefit of the
Certificateholders of the Class A and Class B Pass Through Trusts, in each
case
with the Subordination Agent, as agent for the Pass Through Trustee on behalf
of
each such Pass Through Trust (each such revolving credit agreement with the
Liquidity Provider, a "Liquidity
Facility")
and
(ii) the Pass Through Trustees, the Liquidity Provider and the Subordination
Agent have entered into the Intercreditor Agreement, dated as of the date hereof
(the "Intercreditor
Agreement").
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual agreements
herein contained and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION
1.Financing
of New Aircraft.
(a) The
Company confirms that it has entered into the Aircraft Purchase Agreement with
the Manufacturer pursuant to which the Company has agreed to purchase, and
the
Manufacturer has agreed to deliver, the Eligible Aircraft in the months
specified in Schedule I hereto, all on and subject to terms and conditions
specified in the Aircraft Purchase Agreement. The Company agrees to finance
the
New Aircraft in the manner provided herein, all on and subject to the terms
and
conditions hereof and of the relevant Financing Agreements.
(b) In
furtherance of the foregoing, the Company agrees to give the parties hereto,
the
Depositary and each of the Rating Agencies not less than two Business Days'
prior notice substantially in the form of Exhibit A hereto (a "Delivery
Notice")
of the
scheduled delivery date (the "Scheduled
Delivery Date")
(or,
in the case of a substitute Delivery Notice under Section 1(e) or (f) hereof,
one Business Day's prior notice) in respect of each New Aircraft under the
Aircraft Purchase Agreement, which notice shall:
(i)
specify the Scheduled Delivery Date of such New Aircraft (which shall be a
Business Day before the Cut-off Date and, except as provided in Section 1(f)
hereof, the date (the
"Funding
Date")
on
which the financing therefor in the manner provided herein shall be
consummated);
(ii) instruct
each Pass Through Trustee being requested to purchase Equipment Notes pursuant
to such Delivery Notice (the "Applicable
Pass Through Trustees")
to
enter into the Participation Agreement included in the Financing Agreements
with
respect to such Aircraft in such form and at such a time on or before the
Funding Date specified in such Delivery Notice and to perform its obligations
thereunder;
(iii) instruct
each of the Class A, Class B and Class C Pass Through Trustees to instruct
the relevant Escrow Agent to provide a Notice of Purchase Withdrawal to the
Depositary with respect to the Equipment Notes to be issued to such Pass Through
Trustee in connection with the financing of such New Aircraft (except in the
case of any such financing on the Issuance Date); and
(iv) specify
the aggregate principal amount of each series of Equipment Notes, if any, to
be
issued, and purchased by the Applicable Pass Through Trustees, in connection
with the financing of such New Aircraft scheduled to be delivered on such
Funding Date (which shall in all respects comply with the Required
Terms).
(c) Upon
receipt of a Delivery Notice, the Applicable Pass Through Trustees shall, and
shall cause the Subordination Agent to, enter into and perform their obligations
under the Participation Agreement specified in such Delivery Notice,
provided
that
such Participation Agreement and the Indenture to be entered into pursuant
to
such Participation Agreement shall be in the forms thereof annexed hereto in
all
material respects and, if modified in any material respect, as to which Rating
Agency Confirmation shall have been obtained from each Rating Agency by the
Company (to be delivered by the Company to the Applicable Pass Through Trustees
on or before the relevant Funding Date, it being understood that if Rating
Agency Confirmation shall have been received with respect to any Financing
Agreements and such Financing Agreements are utilized for subsequent New
Aircraft (or Substitute Aircraft) without material modifications, no additional
Rating Agency Confirmation shall be required); provided,
however,
that
the relevant Financing Agreements as executed and delivered shall not vary
the
Required Terms. Notwithstanding the foregoing, an Indenture may be modified
to
the extent required for the issuance of Equipment Notes pursuant to Section
4(a)(vi) of this Agreement, subject to the terms of such Section and Section
9.1(c) or
9.1(d)
of
the Intercreditor Agreement, whichever may be applicable. The Company shall
pay
the reasonable costs and expenses of the Rating Agencies in connection with
obtaining any such Rating Agency Confirmation. With respect to each New
Aircraft, the Company shall cause WTC (or such other person that meets the
eligibility requirements to act as loan trustee under the Indenture) to execute
as Loan Trustee the Financing Agreements relating to such Aircraft to which
such
Loan Trustee is intended to be a party, and shall concurrently therewith execute
such Financing Agreements to which the Company is intended to be a party and
perform its respective obligations thereunder. Upon the request of either Rating
Agency, the Company shall deliver or cause to be delivered to such Rating Agency
a true and complete copy of each Financing Agreement relating to the financing
of each New Aircraft together with a true and complete set of the closing
documentation (including legal opinions) delivered to the related Loan Trustee,
Subordination Agent and Pass Through Trustee under the related Participation
Agreement.
(d) The
Company agrees that all Equipment Notes issued pursuant to any Indenture shall
initially be registered in the name of the Subordination Agent on behalf of
the
applicable Pass Through Trustee (or, in the case of any Additional Series
Equipment Notes, on behalf of the Additional Pass Through Trustee with respect
to the corresponding Additional Certificates).
(e) If
after giving any Delivery Notice, there shall be a delay in the delivery of
the
Eligible Aircraft referred to therein, or if on the Scheduled Delivery Date
of
the Eligible Aircraft the financing thereof in the manner contemplated hereby
shall not be consummated for whatever reason, the Company shall give the parties
hereto and the Depositary prompt notice thereof. Concurrently with the giving
of
such notice of postponement or subsequently, the Company shall give the parties
hereto and the Depositary a substitute Delivery Notice specifying the date
to
which delivery and related financing of such Eligible Aircraft or of another
Eligible Aircraft of the same type in lieu thereof shall have been re-scheduled
(which shall be a Business Day before the Cut-off Date on which the Escrow
Agents shall be entitled to withdraw one or more Deposits under each of the
applicable Deposit Agreements to enable each of the Class A, Class B and
Class C Pass Through Trustees to fund its purchase of the related Equipment
Notes). Upon receipt of any such notice of postponement, each Applicable Pass
Through Trustee shall comply with its obligations under Section 5.01
of
each
of
the Trust Supplements and thereafter the financing of such Eligible Aircraft,
as
specified in such substitute Delivery Notice, shall take place on the
re-scheduled Delivery Date therefor (all on and subject to the terms and
conditions of the relevant Financing Agreements) unless further postponed as
provided herein.
(f) Anything
in this Section 1 to the contrary notwithstanding, the Company shall have the
right to accept delivery of a New Aircraft under the Aircraft Purchase Agreement
on the Delivery Date thereof by utilization of bridge financing of such New
Aircraft and promptly thereafter give the parties hereto and the Depositary
a
Delivery Notice specifying a Funding Date not later than 90 days after the
Delivery Date of such New Aircraft and no later than the Cut-off Date and
otherwise complying with the provisions of Section 1(b) hereof. All other terms
and conditions of this Note Purchase Agreement shall apply to the financing
of
any such New Aircraft on the re-scheduled Funding Date therefor except (i)
the
re-scheduled Funding Date shall be deemed the Delivery Date of such New Aircraft
for all purposes of this Section 1 and (ii) the related Financing Agreements
shall be amended to reflect the original delivery of such New Aircraft to the
Company.
(g) If
the Scheduled Delivery Date for any Eligible Aircraft is delayed (a) more than
30 days beyond the last day of the month set forth opposite such Eligible
Aircraft under the heading "Scheduled Delivery Months" in Schedule I hereto
or
(b) beyond June 30, 2009, the Company may identify for delivery a substitute
aircraft therefor meeting the following conditions (a "Substitute
Aircraft"):
(i) a
Substitute Aircraft must be of the same model as the Eligible Aircraft being
replaced and (ii) the Company shall be obligated to obtain Rating Agency
Confirmation in respect of the replacement of any Eligible Aircraft by
Substitute Aircraft. Upon the satisfaction of the conditions set forth above
with respect to a Substitute Aircraft, the Eligible Aircraft to be replaced
shall cease to be subject to this Agreement and all rights and obligations
of
the parties hereto concerning such Eligible Aircraft shall cease, and such
Substitute Aircraft shall become and thereafter be subject to the terms and
conditions of this Agreement to the same extent as such Eligible
Aircraft.
(h) The
Company shall have no liability for the failure of the Pass Through Trustees
to
purchase Equipment Notes with respect to any New Aircraft or Substitute
Aircraft.
(i) Anything
herein to the contrary notwithstanding, the Company shall not have the right,
and shall not be entitled, at any time to request the issuance of Equipment
Notes of any series to the Class A, Class B or Class C Pass Through Trustee
in an aggregate principal amount in excess of the amount of the Deposits then
available for withdrawal by the Escrow Agent under and in accordance with the
provisions of the related Deposit Agreement.
SECTION
2.Conditions
Precedent.
The
obligation of the Applicable Pass Through Trustees to enter into, and to cause
the Subordination Agent to enter into, any Participation Agreement as directed
pursuant to a Delivery Notice and to perform its obligations thereunder is
subject to satisfaction of the following conditions:
(a) no
Triggering Event shall have occurred; and
(b) the
Company shall have delivered a certificate to each such Pass Through Trustee
and
the Liquidity Provider stating (i) that such Participation Agreement and the
other Financing Agreements to be entered into pursuant to such Participation
Agreement do not vary the Required Terms and (ii) that any substantive
modification of such Financing Agreements from the forms of Financing Agreements
attached to this Agreement do not materially and adversely affect the
Certificateholders or the Liquidity Provider, and such certification shall
be
true and correct.
Anything
herein to the contrary notwithstanding, the obligation of each Pass Through
Trustee to purchase Equipment Notes shall terminate on the Cut-off
Date.
SECTION
3.Representations
and Warranties.
(a) The
Company represents and warrants that:
(i) the
Company is duly incorporated, validly existing and in good standing under the
laws of the State of Delaware and is a "citizen of the United States" as defined
in Section 40102(a)(15) of the Act, and has the full corporate power, authority
and legal right under the laws of the State of Delaware to execute and deliver
this Agreement and each Financing Agreement to which it will be a party and
to
carry out the obligations of the Company under this Agreement and each Financing
Agreement to which it will be a party;
(ii) the
execution and delivery by the Company of this Agreement and the performance
by
the Company of its obligations under this Agreement have been duly authorized
by
the Company and will not violate its Certificate of Incorporation or by-laws
or
the provisions of any indenture, mortgage, contract or other agreement to which
it is a party or by which it is bound; and
(iii) this
Agreement constitutes the legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms, except as the same may
be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by general
principles of equity, whether considered in a proceeding at law or in equity.
(b) WTC
represents and warrants that:
(i) WTC
is
duly incorporated, validly existing and in good standing under the laws of
the
State of Delaware and is a "citizen of the United States" as defined in Section
40102(a)(15) of the Act, and has the full corporate power, authority and legal
right under the laws of the State of Delaware and the United States pertaining
to its banking, trust and fiduciary powers to execute and deliver this Agreement
and each Financing Agreement to which it will be a party and to carry out the
obligations of WTC, in its capacity as Subordination Agent, Pass Through Trustee
or Paying Agent, as the case may be, under this Agreement and each Financing
Agreement to which it will be a party;
(ii) the
execution and delivery by WTC, in its capacity as Subordination Agent, Pass
Through Trustee or Paying Agent, as the case may be, of this Agreement and
the
performance by WTC, in its capacity as Subordination Agent, Pass Through Trustee
or Paying Agent, as the case may be, of its obligations under this Agreement
have been duly authorized by WTC, in its capacity as Subordination Agent, Pass
Through Trustee or Paying Agent, as the case may be, and will not violate its
articles of association or by-laws or the provisions of any indenture, mortgage,
contract or other agreement to which it is a party or by which it is bound;
and
(iii) this
Agreement constitutes the legal, valid and binding obligations of WTC, in its
capacity as Subordination Agent, Pass Through Trustee or Paying Agent, as the
case may be, enforceable against it in accordance with its terms, except as
the
same may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally and
by
general principles of equity, whether considered in a proceeding at law or
in
equity.
(c) The
Pass Through Trustee hereby confirms to each of the other parties hereto that
its representations and warranties set forth in Section 7.15 of the Basic Pass
Through Trust Agreement and Section 5.04 of each Trust Supplement are true
and
correct as of the date hereof.
(d) The
Subordination Agent represents and warrants that:
(i) the
Subordination Agent is duly incorporated, validly existing and in good standing
under the laws of the State of Delaware, and has the full corporate power,
authority and legal right under the laws of the State of Delaware and the United
States pertaining to its banking, trust and fiduciary powers to execute and
deliver this Agreement and each Financing Agreement to which it is or will
be a
party and to perform its obligations under this Agreement and each Financing
Agreement to which it is or will be a party;
(ii) this
Agreement has been duly authorized, executed and delivered by the Subordination
Agent; this Agreement constitutes the legal, valid and binding obligations
of
the Subordination Agent enforceable against it in accordance with its terms,
except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors
generally and by general principles of equity, whether considered in a
proceeding at law or in equity;
(iii) none
of
the execution, delivery and performance by the Subordination Agent of this
Agreement contravenes any law, rule or regulation of the State of Delaware
or
any United States governmental authority or agency regulating
the
Subordination
Agent's banking, trust or fiduciary powers or any judgment or order applicable
to or binding on the Subordination Agent and do not contravene the Subordination
Agent's articles of association or by-laws or result in any breach of, or
constitute a default under, any agreement or instrument to which the
Subordination Agent is a party or by which it or any of its properties may
be
bound;
(iv) neither
the execution and delivery by the Subordination Agent of this Agreement nor
the
consummation by the Subordination Agent of any of the transactions contemplated
hereby requires the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action with respect to, any
Delaware governmental authority or agency or any federal governmental authority
or agency regulating the Subordination Agent's banking, trust or fiduciary
powers;
(v) there
are
no Taxes payable by the Subordination Agent imposed by the State of Delaware
or
any political subdivision or taxing authority thereof in connection with the
execution, delivery and performance by the Subordination Agent of this Agreement
(other than franchise or other taxes based on or measured by any fees or
compensation received by the Subordination Agent for services rendered in
connection with the transactions contemplated by the Intercreditor Agreement
or
any of the Liquidity Facilities), and there are no Taxes payable by the
Subordination Agent imposed by the State of Delaware or any political
subdivision thereof in connection with the acquisition, possession or ownership
by the Subordination Agent of any of the Equipment Notes (other than franchise
or other taxes based on or measured by any fees or compensation received by
the
Subordination Agent for services rendered in connection with the transactions
contemplated by the Intercreditor Agreement or any of the Liquidity Facilities);
and
(vi) there
are
no pending or threatened actions or proceedings against the Subordination Agent
before any court or administrative agency which individually or in the
aggregate, if determined adversely to it, would materially adversely affect
the
ability of the
Subordination
Agent to perform its obligations under this Agreement.
(e) The
Escrow Agent represents and warrants that:
(i) the
Escrow Agent is a national banking association duly incorporated, validly
existing and in good standing under the laws of the United States and has the
full corporate power, authority and legal right under the laws of the United
States pertaining to its banking, trust and fiduciary powers to execute and
deliver this Agreement, each Deposit Agreement and each Escrow and Paying Agent
Agreement (collectively, the "Escrow
Agent Agreements")
and to
carry out the obligations of the Escrow Agent under each of the Escrow Agent
Agreements;
(ii) the
execution and delivery by the Escrow Agent of each of the Escrow Agent
Agreements and the performance by the Escrow Agent of its obligations hereunder
and thereunder have been duly authorized by the Escrow Agent and will not
violate its articles of association or by-laws or the provisions of any
indenture, mortgage, contract or other agreement to which it is a party or
by
which it is bound; and
(iii) each
of
the Escrow Agent Agreements constitutes the legal, valid and binding obligations
of the Escrow Agent enforceable against it in accordance with its terms, except
as the same may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally and
by
general principles of equity, whether considered in a proceeding at law or
in
equity.
(f) The
Paying Agent represents and warrants that:
(i) the
Paying Agent is duly incorporated, validly existing and in good standing under
the laws of the State of Delaware and has the full corporate power, authority
and legal right under the laws of the State of Delaware and the United States
pertaining to its banking, trust and fiduciary powers to execute and deliver
this Agreement and the Escrow and Paying Agent Agreement (collectively, the
"Paying
Agent Agreements")
and to
carry out the obligations of the
Paying
Agent under each of the Paying Agent Agreements;
(ii) the
execution and delivery by the Paying Agent of each of the Paying Agent
Agreements and the performance by the Paying Agent of its obligations hereunder
and thereunder have been duly authorized by the Paying Agent and will not
violate its articles of association or by-laws or the provisions of any
indenture, mortgage, contract or other agreement to which it is a party or
by
which it is bound; and
(iii) each
of
the Paying Agent Agreements constitutes the legal, valid and binding obligations
of the Paying Agent enforceable against it in accordance with its terms, except
as the same may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally and
by
general principles of equity, whether considered in a proceeding at law or
in
equity.
SECTION
4. Covenants.
(a) The
Company covenants with each of the other parties hereto that:
(i) [Intentionally
Omitted];
(ii) subject
to Section 4(a)(iv) of this Agreement, the Company shall at all times maintain
its corporate existence and shall not wind up, liquidate or dissolve or take
any
action, or fail to take any action, that would have the effect of any of the
foregoing;
(iii) the
Company shall at all times remain a U.S. Air Carrier (as defined in the
Financing Agreements) and shall at all times be otherwise certificated and
registered to the extent necessary to entitle the Loan Trustee to the rights
afforded to secured parties of aircraft equipment under Section
1110;
(iv) Section
4.07 of each Indenture is hereby incorporated by reference herein;
(v) the
Company agrees to provide written notice to each of the parties hereto of the
occurrence of the Cut-off Date no later than one Business Day after the date
thereof, such notice to refer specifically to the Pass Through Trustee's
obligation to assign, transfer and deliver all of its right,
title
and
interest to the Trust Property (as defined in each Pass Through Trust Agreement)
to the trustee of the Related Trust (as defined in each Pass Through Trust
Agreement) in accordance with Section 7.01 of each of the Trust
Supplements;
(vi) the
Company shall not redeem and re-issue any Series B or Series C Equipment
Notes
or issue any Additional Series Equipment Notes pursuant to any Indenture,
unless
it shall have obtained written confirmation from each Rating Agency that
the
reissuance or issuance of such Equipment Notes, as the case may be, will
not
result in (1) a reduction of the rating for any Class of Certificates then
rated
by any Rating Agency that will remain outstanding below the then current
rating
for such Class of Certificates or (2) a withdrawal or suspension of the rating
of any Class of Certificates then rated by any Rating Agency that will remain
outstanding. Any reissuance of the Series B or Series C Equipment Notes and
issuance of Additional Series Equipment Notes shall be subject to the terms
of
Section 9.1(c) and 9.1(d), respectively, of the Intercreditor Agreement;
and
(vii) If
(x)
the Depositary’s short-term unsecured debt rating or short-term issuer credit
rating, as the case may be, shall at any time fall below A-1+ from Standard
& Poor’s Ratings Services or P-1 from Moody’s Investors Service, Inc. (such
minimum ratings, the “Depositary Threshold Ratings”) or (y) the Company
or the Depositary, in its sole discretion, gives written notice to the other
of
its election that the Depositary be replaced, the Company shall, within 30
days
after such event occurring, cause the Depositary to be replaced with a
depositary bank (a “Replacement Depositary”) on the following terms and
preconditions:
(A) the
Replacement Depositary must meet the Depositary Threshold Ratings and the
Company shall have obtained written confirmation from each Rating Agency that
such replacement will not cause a reduction of any rating then in effect for
any
Class of Certificates by such Rating Agency (without regard to any downgrading
of any rating of the Depositary being replaced);
(B) the
Company shall pay all fees, expenses and other amounts then owing to the
replaced Depositary and, except as expressly provided in clause (C) below,
the
Company shall pay any up-front fee of the Replacement Depositary and (without
limitation of the foregoing) all out-of-pocket expenses (including reasonable
fees and expenses of legal counsel) of the parties hereto (including without
limitation all amounts payable
to
the
Rating Agencies) incurred in connection with such replacement;
(C) solely
in
the case of the Depositary making an election in its discretion that it be
replaced (and without limitation of clause (A) above), (x) the notice given
by the Depositary to the Company shall nominate a Replacement Depositary, which
shall satisfy all of terms and preconditions of this Section 4(a)(vii) (and
the
Company shall have the right to utilize such nominee as the Replacement
Depositary or to select another Replacement Depositary), (y) the fees,
expenses, indemnities and other amounts payable to the Replacement Depositary
upon its execution of the Replacement Deposit Agreement or thereafter shall
not
to any extent exceed those which would have been payable to the Depositary
had
such replacement not occurred (it being specifically understood and agreed
that
any up-front fee of the Replacement Depositary shall be paid by the replaced
Depositary, provided
that, if the Company selects a Replacement Depositary other than the
nominee of the replaced Depositary and the upfront fee of such selection exceeds
that of such nominee, the Company shall pay such excess),
and
(without limitation of the foregoing) the Depositary shall pay all out-of-pocket
expenses (including reasonable fees and expenses of legal counsel) of the
parties hereto (including without limitation all amounts payable to the Rating
Agencies) incurred in connection with such replacement, and (z) the Replacement
Depositary shall be willing to enter into a Replacement Deposit Agreement for
each of the Class A, Class B and Class C Certificates with the Escrow Agent
having the same terms and conditions (including without limitation as to the
interest to be paid on the Deposits) as the Deposit Agreements to which the
Depositary is a party; and
(D) the
Company or, in the case of the Depositary making an election that it be replaced
(unless the Company shall have selected such Replacement Depositary), the
Depositary, shall cause the Replacement Depositary to enter into a Replacement
Deposit Agreement for each of the Class A, Class B and Class C Certificates
with
the Escrow Agent (and, upon request of the Company the Escrow Agent agrees
to
enter into any such Replacement Deposit Agreement) and shall cause the
Replacement Depositary to deliver to the Company and each Rating Agency legal
opinions and other closing documentation substantially similar in scope and
substance as those that were delivered by the Depositary being replaced in
connection with the execution and delivery of the Deposit Agreement being
replaced.
Upon
satisfaction of the foregoing conditions, the Company shall instruct the Class
A
Pass Through Trustee, Class B Pass Through Trustee and Class C Pass Through
Trustee, and each such Pass Through Trustee agrees, to execute and deliver
to
the Escrow Agent a duly completed Withdrawal Certificate (as defined in the
Escrow and Paying Agent Agreements) together with a Notice of Replacement
Withdrawal (as defined in the Escrow and Paying Agent Agreements).
Each
of
the parties hereto agrees, at the Company’s request, to enter into any
amendments to this Agreement, the Escrow and Paying Agent Agreements and any
other Operative Agreements as may be necessary or desirable to give effect
to
the replacement of the Depositary with the Replacement Depositary and the
replacement of the Deposit Agreements with the Replacement Deposit
Agreements.
Upon
the
execution and delivery of the Replacement Deposit Agreements, the Replacement
Depositary shall be deemed to be the Depositary with all of the rights and
obligations of the Depositary hereunder and under the other Operative Agreements
and the Replacement Deposit Agreements shall be deemed to be the Deposit
Agreements hereunder and under the other Operative Agreements, except that
the
obligations of the replaced Depositary under its Deposit Agreements resulting
from the delivery of any Withdrawal Notice delivered thereunder shall remain
in
full force and effect notwithstanding the execution and delivery of the
Replacement Deposit Agreements.
(viii) Promptly
after the occurrence of a Triggering Event or an Indenture Default resulting
from the failure of the Company to make payments on any Equipment Note and
on
every Regular Distribution Date while the Triggering Event or such Indenture
Default shall be continuing, the Company will, at the Subordination Agent’s
request from time to time but in any event no more frequently than once every
three months, provide to the Subordination Agent a statement setting forth
the
following information with respect to each Aircraft then subject to the lien
of
an Indenture: (A) whether the Aircraft are currently in service or parked
in storage, (B) the maintenance status of the Aircraft and (C) the
location of the Engines (as defined in the respective Indentures to which such
Aircraft are subject). As used in this sentence, the terms “Triggering Event”,
“Indenture Default”, “Regular Distribution Date” shall have the respective
meanings set forth in the Intercreditor Agreement as originally
executed.
(b) WTC,
in
its individual capacity, covenants with each of the other parties to this
Agreement that it will, immediately upon obtaining knowledge of any facts that
would cast doubt upon its continuing status as a "citizen of the United States"
as defined in Section 40102(a)(15) of the Act and promptly upon public
disclosure of negotiations in respect of any transaction which would or might
adversely affect such status, notify in writing all parties hereto of all
relevant matters in connection therewith. Upon WTC giving any such notice,
WTC
shall, subject to Section 8.02 of any Indenture then entered into, resign as
Loan Trustee in respect of such Indenture.
SECTION
5.Notices.
Unless
otherwise specifically provided herein, all notices required or permitted by
the
terms of this Agreement shall be in English and in writing, and any such notice
shall become effective upon being delivered personally or, if promptly confirmed
by mail, when dispatched by facsimile or other written telecommunication,
addressed to such party hereto at its address or facsimile number set forth
below the signature of such party at the foot of this Agreement or to such
other
address or facsimile number as such party may hereafter specify by notice to
the
other parties.
SECTION
6.Expenses.
(a) The
Company agrees to pay to the Subordination Agent when due an amount or amounts
equal to the fees payable to the Liquidity Provider under Section 2.03 of each
Liquidity Facility and the related Fee Letter (as defined in the Intercreditor
Agreement) multiplied by a fraction the numerator of which shall be the then
outstanding aggregate amount of the Deposits under the Deposit Agreements
pertaining to the Class A and Class B Pass Through Trusts and the denominator
of
which shall be the sum of (x) the then outstanding aggregate principal amount
of
the Series A Equipment Notes and Series B Equipment Notes issued under all
of
the Indentures and (y) the then outstanding aggregate amount of the
Deposits under the Deposit Agreements pertaining to the Class A and Class B
Pass
Through Trusts.
(b) So
long as no Equipment Notes have been issued in respect of any Aircraft, the
Company agrees to pay (i) to the Subordination Agent when due (A) the amount
equal to interest on any Downgrade Advance (other than any Applied Downgrade
Advance) payable under Section 3.07 of each Liquidity Facility
minus
Investment
Earnings while such Downgrade Advance shall be outstanding, (B) the amount
equal
to interest on any Non-Extension Advance (other than any Applied Non-Extension
Advance) payable under Section 3.07 of each Liquidity Facility minus Investment
Earnings while such Non-Extension Advance shall be outstanding and (C) any
other
amounts owed to the Liquidity Provider by the Subordination Agent as borrower
under each Liquidity Facility (other than amounts due as repayment of advances
thereunder or as interest on such advances, except to the extent payable
pursuant to clause (A) or (B)), (ii) all compensation and reimbursement of
expenses, disbursements and advances payable by the Company under the Pass
Through Trust Agreements, (iii) all compensation and reimbursement of expenses
and disbursements payable to the Subordination Agent under the Intercreditor
Agreement except with respect to any income or franchise taxes incurred by
the
Subordination Agent in connection with the transactions contemplated by the
Intercreditor Agreement and (iv) in the event the Company requests any
amendment to any Operative Agreement, all reasonable fees and expenses
(including, without limitation, fees and disbursements of counsel) of the Escrow
Agent and/or the Paying Agent in connection therewith. For purposes of this
Section 6(b), the terms "Applied Downgrade Advance", "Applied Non-Extension
Advance", "Downgrade Advance", "Investment Earnings" and "Non-Extension Advance"
shall have the meanings specified in each Liquidity Facility.
SECTION
7.Further
Assurances.
Each
party hereto shall duly execute, acknowledge and deliver, or shall cause to
be
executed, acknowledged and delivered, all such further agreements, instruments,
certificates or documents, and shall do and cause to be done such further acts
and things, in any case, as any other party hereto shall reasonably request
in
connection with its administration of, or to carry out more effectually the
purposes of, or to better assure and confirm unto it the rights and benefits
to
be provided under, this Agreement.
SECTION
8.Miscellaneous.
(a)
Provided that the transactions contemplated hereby have been consummated, and
except as otherwise provided for herein, the representations, warranties and
agreements herein of the Company, the Subordination Agent, the Escrow Agent,
the
Paying Agent and the Pass Through Trustee, and the Company's, the Subordination
Agent's, the Escrow Agent's, the Paying Agent's and the Pass Through Trustee's
obligations under any and all thereof, shall survive the expiration or other
termination of this Agreement and the other agreements referred to herein.
(b) This
Agreement may be executed in any number of counterparts (and each of the parties
hereto shall not be required to execute the same counterpart). Each counterpart
of this Agreement, including a signature page executed by each
of
the
parties hereto, shall be an original counterpart of this Agreement, but all
of
such counterparts together shall constitute one instrument. Neither this
Agreement nor any of the terms hereof may be terminated, amended, supplemented,
waived or modified orally, but only by an instrument in writing signed by the
party against which the enforcement of the termination, amendment, supplement,
waiver or modification is sought. The index preceding this Agreement and the
headings of the various Sections of this Agreement are for convenience of
reference only and shall not modify, define, expand or limit any of the terms
or
provisions hereof. The terms of this Agreement shall be binding upon, and shall
inure to the benefit of, the Company and its successors and permitted assigns,
the Pass Through Trustee and its successors as Pass Through Trustee (and any
additional trustee appointed) under any of the Pass Through Trust Agreements,
the Escrow Agent and its successors as Escrow Agent under the Escrow and Paying
Agent Agreements, the Paying Agent and its successors as Paying Agent under
the
Escrow and Paying Agent Agreement and the Subordination Agent and its successors
as Subordination Agent under the Intercreditor Agreement.
(c) This
Agreement is not intended to, and shall not, provide any person not a party
hereto (other than the Underwriters, each of the beneficiaries of Section 6
hereof and the Depositary as a beneficiary of Section 4(a)(vii)) with any rights
of any nature whatsoever against any of the parties hereto, and no person not
a
party hereto (other than the Underwriters, each of the beneficiaries of Section
6 hereof and the Depositary as a beneficiary of Section 4(a)(vii)) shall have
any right, power or privilege in respect of, or have any benefit or interest
arising out of, this Agreement. To the extent that this Agreement expressly
confers upon, gives or grants any right, power, privilege, benefit, interest,
remedy or claim to any of the beneficiaries of Section 6 hereof (including,
but not limited to rights, powers, privileges, benefits, interests, remedies
and
claims under Section 6) or to the Depositary with respect to Section
4(a)(vii), each such party is hereby recognized as a third party beneficiary
hereunder and may enforce any such right, power, privilege, benefit, interest,
remedy or claim.
SECTION
9.Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK. THIS AGREEMENT IS BEING DELIVERED IN THE STATE OF NEW
YORK.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
|
CONTINENTAL
AIRLINES, INC.
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
|
Address:
|
1600
Smith StreetDept. HQS-FN
Houston,
TX 77002
Attention:
Treasurer
Facsimile:
(713) 324-2447
|
|
WILMINGTON
TRUST COMPANY,
not
in its individual capacity, except as otherwise provided herein,
but
solely as Pass Through Trustee
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
|
Address:
|
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890
Attention:
Corporate Trust
Administration
Facsimile:
(302) 636-4140
|
|
WILMINGTON
TRUST COMPANY,
not
in its individual capacity, except as otherwise provided herein,
but
solely as Subordination Agent
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
|
Address:
|
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890
Attention:
Corporate Trust
Administration
Facsimile:
(302) 636-4140
|
|
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as
Escrow Agent
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
|
Address:
|
299
South Main Street
Salt
Lake City, 12th Floor Utah 84111
Attention:
Corporate Trust
Department
Facsimile:
(801) 246-5053
|
|
WILMINGTON
TRUST COMPANY,
as
Paying Agent
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
|
Address:
|
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890
Attention:
Corporate Trust
Administration
Facsimile:
(302) 636-4140
|
SCHEDULE
I to
Note
Purchase Agreement
|
Aircraft
Type
|
Expected
Registration
Number
|
Expected
Manufacturer’s
Serial
Number
|
Scheduled
Delivery
Month
|
|
Boeing
737-824
|
N87507
|
31637
|
January
2008
|
|
Boeing
737-824
|
N76508
|
31638
|
February
2008
|
|
Boeing
737-824
|
N78509
|
31639
|
February
2008
|
|
Boeing
737-824
|
N77510
|
32828
|
April
2008
|
|
Boeing
737-824
|
N78511
|
33458
|
May
2008
|
|
Boeing
737-824
|
N87512
|
33459
|
May
2008
|
|
Boeing
737-824
|
N87513
|
31621
|
June
2008
|
|
Boeing
737-824
|
N76514
|
31626
|
July
2008
|
|
Boeing
737-824
|
N76515
|
37096
|
August
2008
|
|
Boeing
737-824
|
N76516
|
31623
|
August
2008
|
|
Boeing
737-824
|
N76517
|
31628
|
September
2008
|
|
Boeing
737-824
|
N77518
|
31605
|
November
2008
|
|
Boeing
737-824
|
N76519
|
37099
|
January
2009
|
|
Boeing
737-824
|
N77520
|
37100
|
February
2009
|
|
Boeing
737-824
|
N79521
|
37101
|
March
2009
|
|
Boeing
737-924ER
|
N37413
|
31664
|
January
2008
|
|
Boeing
737-924ER
|
N47414
|
32827
|
January
2008
|
|
Boeing
737-924ER
|
N39415
|
32826
|
February
2008
|
|
Boeing
737-924ER
|
N39416
|
37093
|
February
2008
|
|
Boeing
737-924ER
|
N38417
|
31665
|
March
2008
|
|
Boeing
737-924ER
|
N39418
|
31666
|
March
2008
|
|
Boeing
737-924ER
|
N37419
|
33456
|
March
2008
|
|
Boeing
737-924ER
|
N37420
|
33457
|
April
2008
|
|
Boeing
737-924ER
|
N27421
|
37094
|
April
2008
|
|
Boeing
737-924ER
|
N37422
|
31620
|
May
2008
|
|
Boeing
737-924ER
|
N39423
|
32829
|
June
2008
|
|
Boeing
737-924ER
|
N38424
|
33460
|
June
2008
|
|
Boeing
737-924ER
|
N75425
|
37095
|
June
2008
|
|
Boeing
737-924ER
|
N75426
|
31622
|
July
2008
|
|
Boeing
737-924ER
|
N37427
|
37097
|
September
2008
|
|
Boeing
737-924ER
|
N75428
|
30130
|
October
2008
|
|
Boeing
737-924ER
|
N75429
|
31633
|
December
2008
|
|
Boeing
737-924ER
|
N77430
|
37098
|
December
2008
|
|
Boeing
737-924ER
|
N77431
|
32833
|
January
2009
|
|
Aircraft
Type
|
Expected
Registration
Number
|
Expected
Manufacturer’s
Serial
Number
|
Scheduled
Delivery
Month
|
|
Boeing
737-924ER
|
N75433
|
32836
|
February
2009
|
|
Boeing
737-924ER
|
N37434
|
33527
|
February
2009
|
|
Boeing
737-924ER
|
N75435
|
33528
|
March
2009
|
|
Boeing
737-924ER
|
N75436
|
33529
|
March
2009
|
SCHEDULE
II to
Note
Purchase Agreement
Trust
Supplement dated as of the Issuance Date between the Company and the Pass
Through Trustee in respect of Continental Airlines Pass Through Trust, Series
2007-1A-O.
Trust
Supplement dated as of the Issuance Date between the Company and the Pass
Through Trustee in respect of Continental Airlines Pass Through Trust, Series
2007-1B-O.
Trust
Supplement dated as of the Issuance Date between the Company and the Pass
Through Trustee in respect of Continental Airlines Pass Through Trust, Series
2007-1C-O.
SCHEDULE
III TO
Note
Purchase Agreement
REQUIRED
TERMS
Equipment
Notes
Obligor: Continental
Maximum
Principal Amount:
The
initial principal amount and amortization schedule of the Series A, B and
C
Equipment Notes issued with respect to an Aircraft shall be as set forth
in the
following table for aircraft of that type (provided
that if an Equipment Note is issued on or after any date scheduled for a
principal payment in the applicable amortization schedule below, the initial
principal amount of such Equipment Note will be reduced by the aggregate
principal amount scheduled for payment on or prior to such issuance date
and the
principal amortization schedule for such Equipment Note shall commence on
the
first scheduled principal payment date in such schedule occurring after the
issuance of such Equipment Note):
| Boeing 737-824 |
Equipment
Note Ending
Balance
|
Scheduled
Payments of
Principal
|
|||||||||||||||||
|
|
Series
A
|
Series
B
|
Series
C
|
Series
A
|
Series
B
|
Series
C
|
|||||||||||||
|
|
Equipment
|
Equipment
|
Equipment
|
Equipment
|
Equipment
|
Equipment
|
|||||||||||||
|
Date
|
Note
|
Note
|
Note
|
Note
|
Note
|
Note
|
|||||||||||||
|
At
Issuance
|
$
|
23,384,000.00
|
$
|
6,735,000.00
|
$
|
5,177,000.00
|
$
|
0.00
|
$
|
0.00
|
$
|
0.00
|
|||||||
|
April 19,
2009
|
23,384,000.00
|
6,735,000.00
|
5,177,000.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||
|
October 19,
2009
|
23,384,000.00
|
6,735,000.00
|
5,177,000.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||
|
April 19,
2010
|
22,987,888.00
|
6,658,772.00
|
4,581,662.72
|
396,112.00
|
76,228.00
|
595,337.28
|
|||||||||||||
|
October 19,
2010
|
22,592,570.00
|
6,581,005.00
|
3,992,913.59
|
395,318.00
|
77,767.00
|
588,749.13
|
|||||||||||||
|
April 19,
2011
|
22,198,176.00
|
6,502,314.00
|
3,409,864.90
|
394,394.00
|
78,691.00
|
583,048.69
|
|||||||||||||
|
October 19,
2011
|
21,804,706.00
|
6,422,699.00
|
2,831,802.42
|
393,470.00
|
79,615.00
|
578,062.47
|
|||||||||||||
|
April 19,
2012
|
21,412,160.01
|
6,342,160.00
|
2,258,166.86
|
392,545.99
|
80,539.00
|
573,635.57
|
|||||||||||||
|
October 19,
2012
|
21,020,538.01
|
6,260,697.00
|
1,688,508.69
|
391,622.00
|
81,463.00
|
569,658.16
|
|||||||||||||
|
April 19,
2013
|
20,629,840.01
|
6,178,310.00
|
1,122,459.01
|
390,698.00
|
82,387.00
|
566,049.68
|
|||||||||||||
|
October 19,
2013
|
20,240,066.01
|
6,094,999.00
|
559,709.77
|
389,774.00
|
83,311.00
|
562,749.24
|
|||||||||||||
|
April 19,
2014
|
19,851,216.01
|
6,010,764.00
|
0.00
|
388,850.00
|
84,235.00
|
559,709.77
|
|||||||||||||
|
October 19,
2014
|
19,463,290.01
|
5,925,605.00
|
0.00
|
387,926.00
|
85,159.00
|
0.00
|
|||||||||||||
|
April 19,
2015
|
19,076,288.01
|
5,839,522.00
|
0.00
|
387,002.00
|
86,083.00
|
0.00
|
|||||||||||||
|
October 19,
2015
|
18,620,509.61
|
4,885,082.28
|
0.00
|
455,778.40
|
954,439.72
|
0.00
|
|||||||||||||
|
April 19,
2016
|
18,168,353.29
|
4,089,761.22
|
0.00
|
452,156.32
|
795,321.06
|
0.00
|
|||||||||||||
|
October 19,
2016
|
17,719,819.05
|
3,420,480.29
|
0.00
|
448,534.24
|
669,280.93
|
0.00
|
|||||||||||||
|
April 19,
2017
|
17,274,906.89
|
2,852,270.01
|
0.00
|
444,912.16
|
568,210.28
|
0.00
|
|||||||||||||
|
October 19,
2017
|
16,833,616.81
|
2,366,007.33
|
0.00
|
441,290.08
|
486,262.68
|
0.00
|
|||||||||||||
|
April 19,
2018
|
16,395,948.81
|
1,946,854.30
|
0.00
|
437,668.00
|
419,153.03
|
0.00
|
|||||||||||||
|
October 19,
2018
|
15,961,902.89
|
1,583,160.85
|
0.00
|
434,045.92
|
363,693.45
|
0.00
|
|||||||||||||
|
April 19,
2019
|
15,531,479.05
|
1,265,680.80
|
0.00
|
430,423.84
|
317,480.05
|
0.00
|
|||||||||||||
|
October 19,
2019
|
15,053,107.86
|
987,003.17
|
0.00
|
478,371.19
|
278,677.63
|
0.00
|
|||||||||||||
|
April 19,
2020
|
14,016,744.33
|
741,133.94
|
0.00
|
1,036,363.53
|
245,869.23
|
0.00
|
|||||||||||||
|
October 19,
2020
|
11,782,733.07
|
523,184.56
|
0.00
|
2,234,011.26
|
217,949.38
|
0.00
|
|||||||||||||
|
April 19,
2021
|
7,926,459.05
|
329,137.24
|
0.00
|
3,856,274.02
|
194,047.32
|
0.00
|
|||||||||||||
|
October 19,
2021
|
3,182,186.33
|
155,666.18
|
0.00
|
4,744,272.72
|
173,471.06
|
0.00
|
|||||||||||||
|
April 19,
2022
|
0.00
|
0.00
|
0.00
|
3,182,186.33
|
155,666.18
|
0.00
|
|||||||||||||
|
Boeing
737-924ER
|
Equipment
Note Ending
Balance
|
Scheduled
Payments of
Principal
|
|||||||||||||||||
|
|
Series
A
|
Series
B
|
Series
C
|
Series
A
|
Series
B
|
Series
C
|
|||||||||||||
|
|
Equipment
|
Equipment
|
Equipment
|
Equipment
|
Equipment
|
Equipment
|
|||||||||||||
|
Date
|
Note
|
Note
|
Note
|
Note
|
Note
|
Note
|
|||||||||||||
|
At
Issuance
|
$ |
26,453,000.00
|
$ |
7,835,000.00
|
$ |
5,893,000.00
|
$ |
0.00
|
$ |
0.00
|
$ |
0.00
|
|||||||
|
April 19,
2009
|
26,453,000.00
|
7,835,000.00
|
5,893,000.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||
|
October 19,
2009
|
26,453,000.00
|
7,835,000.00
|
5,893,000.00
|
0.00
|
0.00
|
0.00
|
|||||||||||||
|
April 19,
2010
|
25,972,519.60
|
7,778,602.83
|
5,215,974.86
|
480,480.40
|
56,397.17
|
677,025.14
|
|||||||||||||
|
October 19,
2010
|
25,493,216.46
|
7,719,324.24
|
4,545,715.86
|
479,303.14
|
59,278.59
|
670,259.00
|
|||||||||||||
|
April 19,
2011
|
25,016,016.50
|
7,657,942.47
|
3,881,946.51
|
477,199.96
|
61,381.77
|
663,769.35
|
|||||||||||||
|
October 19,
2011
|
24,540,919.72
|
7,594,457.52
|
3,223,853.70
|
475,096.78
|
63,484.95
|
658,092.81
|
|||||||||||||
|
April 19,
2012
|
24,067,926.12
|
7,528,869.39
|
2,570,800.68
|
472,993.60
|
65,588.13
|
653,053.02
|
|||||||||||||
|
October 19,
2012
|
23,597,035.70
|
7,461,178.08
|
1,922,275.72
|
470,890.42
|
67,691.31
|
648,524.96
|
|||||||||||||
|
April 19,
2013
|
23,128,248.46
|
7,391,383.59
|
1,277,858.82
|
468,787.24
|
69,794.49
|
644,416.90
|
|||||||||||||
|
October 19,
2013
|
22,661,564.40
|
7,319,485.92
|
637,199.30
|
466,684.06
|
71,897.67
|
640,659.52
|
|||||||||||||
|
April 19,
2014
|
22,196,983.52
|
7,245,485.07
|
0.00
|
464,580.88
|
74,000.85
|
637,199.30
|
|||||||||||||
|
October 19,
2014
|
21,734,505.82
|
7,169,381.04
|
0.00
|
462,477.70
|
76,104.03
|
0.00
|
|||||||||||||
|
April 19,
2015
|
21,274,131.30
|
7,091,173.83
|
0.00
|
460,374.52
|
78,207.21
|
0.00
|
|||||||||||||
|
October 19,
2015
|
20,815,842.65
|
5,746,366.44
|
0.00
|
458,288.65
|
1,344,807.39
|
0.00
|
|||||||||||||
|
April 19,
2016
|
20,359,657.85
|
4,672,170.69
|
0.00
|
456,184.80
|
1,074,195.75
|
0.00
|
|||||||||||||
|
October 19,
2016
|
19,905,576.90
|
3,803,671.15
|
0.00
|
454,080.95
|
868,499.54
|
0.00
|
|||||||||||||
|
April 19,
2017
|
19,453,599.80
|
3,093,799.55
|
0.00
|
451,977.10
|
709,871.60
|
0.00
|
|||||||||||||
|
October 19,
2017
|
19,003,726.55
|
2,507,858.38
|
0.00
|
449,873.25
|
585,941.17
|
0.00
|
|||||||||||||
|
April 19,
2018
|
18,555,957.15
|
2,019,884.83
|
0.00
|
447,769.40
|
487,973.55
|
0.00
|
|||||||||||||
|
October 19,
2018
|
18,110,291.60
|
1,610,187.30
|
0.00
|
445,665.55
|
409,697.53
|
0.00
|
|||||||||||||
|
April 19,
2019
|
17,666,729.90
|
1,263,645.41
|
0.00
|
443,561.70
|
346,541.89
|
0.00
|
|||||||||||||
|
October 19,
2019
|
17,174,790.19
|
968,517.30
|
0.00
|
491,939.71
|
295,128.11
|
0.00
|
|||||||||||||
|
April 19,
2020
|
16,181,029.48
|
715,589.90
|
0.00
|
993,760.71
|
252,927.40
|
0.00
|
|||||||||||||
|
October 19,
2020
|
13,955,406.23
|
497,565.11
|
0.00
|
2,225,623.25
|
218,024.79
|
0.00
|
|||||||||||||
|
April 19,
2021
|
9,804,047.64
|
308,610.61
|
0.00
|
4,151,358.59
|
188,954.50
|
0.00
|
|||||||||||||
|
October 19,
2021
|
4,193,536.26
|
144,027.26
|
0.00
|
5,610,511.38
|
164,583.35
|
0.00
|
|||||||||||||
|
April 19,
2022
|
0.00
|
0.00
|
0.00
|
4,193,536.26
|
144,027.26
|
0.00
|
Indenture
Debt
Rate
(as such term is defined in clause (i) of the form of Indenture marked as
Exhibit C of the Note Purchase Agreement (the "Indenture
Form")
for
Series A (computed on the basis of a 360-day year consisting of twelve 30-day
months, payable semi-annually in arrears): 5.983%
Debt
Rate
for Series B (computed on the basis of a 360-day year consisting of twelve
30-day months, payable semi-annually in arrears): 6.903%
Debt
Rate
for Series C (computed on the basis of a 360-day year consisting of twelve
30-day months, payable semi-annually in arrears): 7.339%
|
Payment
Due Rate:
|
Debt
Rate plus 2% per annum
|
|
Payment
Dates:
|
April
19 and October 19
|
|
Make-Whole
Premiums:
|
As
provided in Article II of the Indenture
Form
|
|
Redemption:
|
As
provided in Article II of the Indenture
Form
|
|
All-risk
hull insurance:
|
Not
less than the unpaid principal amount of the Equipment Notes relating
to
an Aircraft, together with six months of interest accrued thereon,
subject
to Continental’s right to self-insure on terms no more favorable to
Continental in any
|
|
|
material
respect than those set forth in Section G of Annex B to the
Indenture Form.
|
Participation
Agreement
Mortgagee,
Subordination Agent, Liquidity Providers, Pass Through Trustees, Escrow Agents
and Note Holders indemnified against Expenses and Taxes to the extent set
forth
in Section 8 of the form of the Participation Agreement marked as Exhibit
B to
the Note Purchase Agreement.
Prohibited
Modifications
|
1.
|
May
not modify in any material adverse respect the Granting Clause
of the
Indenture so as to deprive the Note Holders or the Related Note
Holders
(as defined in the Indenture) of a first priority security interest
in and
mortgage lien on the Aircraft or, to the extent assigned thereunder,
Continental’s rights under the Purchase Agreement (as defined in the
Indenture) or to eliminate any of the obligations intended to be
secured
thereby or otherwise modify in any material adverse respect as
regards the
interests of the Note Holders, the Subordination Agent, the Liquidity
Providers or the Mortgagee the provisions of Article II or III
or Section
4.05(c), 5.01, 5.02, 6.02, 10.01(a), 11.04, 11.11, 11.12 or 11.13
of the
Indenture or the definition of “Make-Whole Amount” in Annex A to the
Indenture.
|
|
2.
|
May not modify in any material adverse respect
as
regards the interests of the Note Holders, the Subordination Agent,
the
Liquidity Providers or the Mortgagee the provisions of Section
4.1.8,
4.1.9, 4.1.10, 4.1.11, 6.1.3(b), 6.3, 10, 12.8(a) or 12.9 of the
Participation Agreement, of the provisions of Section 4.1.2(x)
of the
Participation Agreement so as to eliminate the requirement to deliver
to
the Loan Participant or the Mortgagee, as the case may be, the
legal
opinions to be provided to such Persons thereunder (recognizing
that the
lawyers rendering such opinions may be changed) or of the provisions
of
Section 6.4.5(a)(ii) of the Participation Agreement as regards
the rights
of the Mortgagee thereunder or otherwise modify the terms of the
Participation Agreement to deprive the Trustees, the Subordination
Agent,
the Liquidity Providers or the Mortgagee of any indemnity or right
of
reimbursement in its favor for Expenses or
Taxes.
|
Notwithstanding
the foregoing, any form of Financing Agreement may be modified to correct
or
supplement any such provision which may be defective or to cure any ambiguity
or
correct any mistake, provided
that any
such action shall not materially adversely affect the interests of
the
Note
Holders, the Subordination Agent, the Liquidity Providers, the Mortgagee
or the
Certificateholders.
ANNEX
A
to
Note
Purchase Agreement
DEFINITIONS
"Act"
means
49 U.S.C. §§ 40101-46507.
“Additional
Series Equipment Notes”
means
Equipment Notes of each series issued under an Indenture and designated other
than as “Series A”, “Series B” or “Series C” issued thereunder, if
any.
“Additional
Series Pass Through Certificates”
means
the pass through certificates issued pursuant to any Additional Series Pass
Through Trust Agreement.
“Additional
Series Pass Through Trust”
means
a
grantor trust created to facilitate the issuance and sale of pass through
certificates in connection with the issuance of any Additional Series Equipment
Notes.
“Additional
Series Pass Through Trust Agreement”
means
a
Trust Supplement entered into in connection with the creation of an Additional
Series Pass Through Trust, together with the Basic Pass Through Trust
Agreement.
“Additional
Series Pass Through Trustee”
means
WTC, in its capacity as trustee under an Additional Series Pass Through Trust
Agreement.
"Aircraft
Purchase Agreement"
means
the Purchase Agreement No. 1951, dated as of July 23, 1996, as amended, each
between the Company and the Manufacturer (including all exhibits thereto,
together with all letter agreements entered into that by their terms constitute
part of such Purchase Agreement).
"Applicable
Pass Through Trustee"
has the
meaning provided in Section 1(b)(ii) of the Note Purchase
Agreement.
"Bankruptcy
Code"
means
the United States Bankruptcy Code, 11 U.S.C. §§ 101 et
seq.
"Basic
Pass Through Trust Agreement"
means
the Pass Through Trust Agreement, dated September 25, 1997, between the Company
and Pass Through Trustee, as such agreement may be supplemented, amended or
modified, but does not include any Trust Supplement.
"Business
Day"
means
any day, other than a Saturday, Sunday or other day on which commercial banks
are authorized or required by law to close in New York, New York, Houston,
Texas, Wilmington, Delaware or Salt Lake City, Utah.
"Certificates"
has the
meaning set forth in the third recital to the Note Purchase
Agreement.
"Certificateholder"
means
the Person in whose name a Certificate is registered in the
Register.
"Class"
means
the class of Certificates issued by each Pass Through Trust.
"Class
A Certificates"
means
Certificates issued by the Class A Pass Through Trust.
"Class
B Certificates"
means
Certificates issued by the Class B Pass Through Trust.
"Class
C Certificates"
means
Certificates issued by the Class C Pass Through Trust.
“Class
A Pass Through Trustee”
has
the
meaning set forth in the fourth recital to the Note Purchase
Agreement.
“Class
B Pass Through Trustee”
has
the
meaning set forth in the fourth recital to the Note Purchase
Agreement.
“Class
C Pass Through Trustee”
has
the
meaning set forth in the fourth recital to the Note Purchase
Agreement.
"Company"
means
Continental Airlines, Inc., a Delaware corporation.
"Cut-off
Date"
means
the earlier of (a) the day after the Delivery Period Termination Date and (b)
the date on which a Triggering Event occurs.
"Delivery
Period Termination Date"
means
the earlier of (a) June 30, 2009, or, if the Equipment Notes relating to
all of the New Aircraft (or Substitute Aircraft in lieu thereof) have not been
purchased by the Pass Through Trustees 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, September 30, 2009 (provided that, if a labor strike occurs
or continues at the Manufacturer after the Issuance Date and on or prior to
either or both of such dates referred to in this clause (a), such date or dates
on or following the Issuance Date shall be
extended
by adding thereto the number of days that such strike continued in effect after
the Issuance Date) and (b) the date on which Equipment Notes issued with respect
to all of the New Aircraft (or Substitute Aircraft in lieu thereof) have been
purchased by the Pass Through Trustees in accordance with the Note Purchase
Agreement.
"Delivery
Date"
means
the Business Day on which a New Aircraft is delivered to and accepted by the
Company.
“Delivery
Notice”
has
the
meaning set forth in Section 1(b) of the Note Purchase Agreement.
"Deposits"
has the
meaning set forth in the fifth recital to the Note Purchase
Agreement.
"Deposit
Agreements"
has the
meaning set forth in the fifth recital to the Note Purchase
Agreement.
"Depositary"
means
Credit Suisse, New York Branch, a branch of Credit Suisse, a banking corporation
organized under the laws of Switzerland.
“Depositary
Threshold Ratings”
has
the
meaning set forth in Section 4(a)(vii) of the Note Purchase
Agreement.
"Eligible
Aircraft"
has the
meaning set forth in the second recital to the Note Purchase
Agreement.
"Equipment
Notes"
means
and includes any equipment notes issued under any Indenture in the form
specified in Section 2.01 thereof (as such form may be varied pursuant to the
terms of such Indenture) and any Equipment Note issued under any Indenture
in
exchange for or replacement of any other Equipment Note.
"Escrow
Agent"
has the
meaning set forth in the first paragraph of the Note Purchase
Agreement.
“Escrow
Agent Agreements”
has
the
meaning set forth in Section 3(e)(i) of the Note Purchase
Agreement.
"Escrow
and Paying Agent Agreements"
has the
meaning set forth in the fifth recital to the Note Purchase
Agreement.
"FAA"
means
the Federal Aviation Administration of the United States.
"Financing
Agreements"
means,
collectively, the Participation Agreement, the Indenture and the Equipment
Notes
issued thereunder.
“Funding
Date”
has
the
meaning set forth in Section 1(b) of the Note Purchase Agreement.
"Government
Entity"
means
(a) any federal, state, provincial or similar government, and any body, board,
department, commission, court, tribunal, authority, agency or other
instrumentality of any such government or otherwise exercising any executive,
legislative, judicial, administrative or regulatory functions of such government
or (b) any other government entity having jurisdiction over any matter
contemplated by the Operative Agreements or relating to the observance or
performance of the obligations of any of the parties to the Operative
Agreements.
"Indenture"
means
the Trust Indenture and Mortgage substantially in the form of Exhibit C to
the Note Purchase Agreement.
"Initial
Deposits"
has the
meaning set forth in the fifth recital to the Note Purchase
Agreement.
"Intercreditor
Agreement"
has the
meaning set forth in the eighth recital to the Note Purchase
Agreement.
"Issuance
Date"
means
the date of the original issuance of the Certificates.
"Law"
means
(a) any constitution, treaty, statute, law, decree, regulation, order, rule
or
directive of any Government Entity, and (b) any judicial or administrative
interpretation or application of, or decision under, any of the
foregoing.
"Liquidity
Facility"
has the
meaning set forth in the eighth recital to the Note Purchase Agreement.
"Liquidity
Provider"
has the
meaning set forth in the eighth recital to the Note Purchase
Agreement.
"Loan
Trustee"
means
the "Mortgagee" as defined in the Financing Agreements.
"Manufacturer"
means
The Boeing Company, a Delaware corporation, solely in its capacity as
manufacturer or seller of New Aircraft.
"New
Aircraft"
has the
meaning set forth in the second recital to the Note Purchase
Agreement.
"Note
Purchase Agreement"
means
the Note Purchase Agreement to which this Annex A is attached.
"Notice
of Purchase Withdrawal"
with
respect to each Deposit Agreement, has the meaning set forth in Section 2.3
thereof.
"Operative
Agreements"
means,
collectively, the Pass Through Trust Agreements, the Escrow and Paying Agent
Agreements, the Deposit Agreements, the Liquidity Facilities, the Intercreditor
Agreement, the Equipment Notes, the Certificates and the Financing
Agreements.
"Participation
Agreement"
means,
the Participation Agreement substantially in the form of Exhibit B to the
Note Purchase Agreement.
“Paying
Agent Agreements”
has
the
meaning set forth in Section 3(f)(i) of the Note Purchase
Agreement.
"Pass
Through Trust"
has the
meaning set forth in the third recital to the Note Purchase
Agreement.
"Pass
Through Trust Agreement"
means
each of the three separate Trust Supplements referred to in the third recital
to
the Note Purchase Agreement, together in each case with the Basic Pass Through
Trust Agreement, each dated as of the Issuance Date, by and between the Company
and Pass Through Trustee.
"Pass
Through Trustee"
has the
meaning set forth in the first paragraph of the Note Purchase
Agreement.
"Paying
Agent"
has the
meaning set forth in the first paragraph of the Note Purchase
Agreement.
"Person"
means
any individual, firm, partnership, joint venture, trust, trustee, Government
Entity, organization, association, corporation, limited liability company,
government agency, committee, department, authority and other body, corporate
or
incorporate, whether having distinct legal status or not, or any member of
any
of the same.
"Rating
Agencies"
means,
collectively, at any time, each nationally recognized rating agency which shall
have been requested to rate the Certificates and which shall then be rating
the
Certificates. The initial Rating Agencies will be Moody's Investors Service,
Inc. and Standard & Poor's Ratings Services, a division of The McGraw-Hill
Companies, Inc.
"Rating
Agency Confirmation"
means,
with respect to (1) any Financing Agreement that has been modified in any
material respect from the forms thereof attached to the Note Purchase Agreement
or (2) a Substitute Aircraft, a written confirmation from each of the Rating
Agencies that (1) the use of such Financing Agreement with such modifications
or
(2) the substituting of such Substitute Aircraft for an Eligible Aircraft,
whichever of the foregoing shall in a particular case require Rating Agency
Confirmation, would not result in (i) a reduction of the rating for any Class
of
Certificates then rated by the Rating Agencies below the then current rating
for
such Class of Certificates or (ii) a withdrawal or suspension of the rating
of any Class of Certificates then rated by the Rating Agencies.
"Register"
means
the register maintained pursuant to Sections 3.04 and 7.12 of the Basic Pass
Through Trust Agreement with respect to each Pass Through Trust.
“Replacement
Deposit Agreement”
means,
for each Class of Certificates, a deposit agreement substantially in the form
of
the replaced Deposit Agreement for such Class of Certificates as shall permit
the Rating Agencies to confirm in writing their respective ratings then in
effect for such Class of Certificates (before the downgrading of such ratings,
if any, as a result of the downgrading of the Depositary, if
applicable).
“Replacement
Depositary”
has
the
meaning set forth in Section 4(a)(vii) of the Note Purchase
Agreement.
"Required
Terms"
means
the terms set forth on Schedule III to the Note Purchase Agreement.
“Scheduled
Delivery Date”
has
the
meaning set forth in Section 1(b) of the Note Purchase Agreement.
"Section
1110"
means
11 U.S.C. § 1110 of the Bankruptcy Code or any successor or analogous Section of
the federal bankruptcy Law in effect from time to time.
"Series
A Equipment Notes"
means
Equipment Notes issued under an Indenture and designated as "Series A"
thereunder.
"Series
B Equipment Notes"
means
Equipment Notes issued under an Indenture and designated as "Series B"
thereunder.
"Series
C Equipment Notes"
means
Equipment Notes issued under an Indenture and designated as "Series C"
thereunder.
"Subordination
Agent"
has the
meaning set forth in the first paragraph of the Note Purchase
Agreement.
"Substitute
Aircraft"
has the
meaning set forth in Section 1(g) of the Note Purchase Agreement.
"Taxes"
means
all license, recording, documentary, registration and other similar fees and
all
taxes, levies, imposts, duties, charges, assessments or withholdings of any
nature whatsoever imposed by any Taxing Authority, together with any penalties,
additions to tax, fines or interest thereon or additions thereto.
"Taxing
Authority"
means
any federal, state or local government or other taxing authority in the United
States, any foreign government or any political subdivision or taxing authority
thereof, any international taxing authority or any territory or possession
of
the United States or any taxing authority thereof.
"Triggering
Event"
has the
meaning assigned to such term in the Intercreditor Agreement.
"Trust
Supplement"
means
an agreement supplemental to the Basic Pass Through Trust Agreement pursuant
to
which (i) a separate trust is created for the benefit of the holders of the
pass through certificates of a class, (ii) the issuance of the pass through
certificates of such class representing fractional undivided interests in such
trust is authorized and (iii) the terms of the pass through certificates of
such class are established.
"Underwriters"
has the
meaning set forth in the fourth recital to the Note Purchase
Agreement.
“Underwriting
Agreement”
has
the
meaning set forth in the fourth recital to the Note Purchase
Agreement.
"WTC"
has the
meaning set forth in the first paragraph of the Note Purchase
Agreement.
EXHIBIT
A
TO
NOTE
PURCHASE AGREEMENT
FORM
OF
DELIVERY NOTICE
Dated
as
of [__________]
To
each
of the addressees listed
in
Schedule A hereto
|
Re:
|
Delivery
Notice in accordance with Note Purchase Agreement referred to
below
|
Ladies
and Gentlemen:
Reference
is made to the Note Purchase Agreement, dated as of April 10, 2007, among
Continental Airlines, Inc. (the “Company”),
Wilmington Trust Company, as Pass Through Trustee under each of the Pass Through
Trust Agreements (as defined therein) (the “Pass
Through Trustee”),
Wilmington Trust Company, as Subordination Agent (the “Subordination
Agent”),
Wells
Fargo Bank Northwest, National Association, as Escrow Agent (the “Escrow
Agent”),
and
Wilmington Trust Company, as Paying Agent (the “Paying
Agent”)
(as in
effect from time to time, the “Note
Purchase Agreement”).
Unless otherwise defined herein, capitalized terms used herein shall have the
meanings set forth in the Note Purchase Agreement or, to the extent not defined
therein, the Intercreditor Agreement.
Pursuant
to Section 1(b) of the Note Purchase Agreement, the undersigned hereby notifies
you, in respect of the Boeing Model [_______] aircraft with manufacturer’s
serial number [______] (the “Aircraft”),
of
the following:
|
(1)
|
The
Scheduled Delivery Date of the Aircraft is
[_________];
|
|
(2)
|
The
Funding Date for the Aircraft shall be [__________];
and
|
|
(3)
|
The
aggregate amount of each series of Equipment Notes to be issued,
and
purchased by the respective Pass Through Trustees referred to below
(each,
an “Applicable
Pass Through Trustee”),
on the Funding Date, in connection with the financing of such Aircraft
is
as follows:
|
(a) the
Class A Pass Through Trustee shall purchase Series A Equipment Notes in the
amount of $[__________];
(b) the
Class B Pass Through Trustee shall purchase Series B Equipment Notes in the
amount of $[__________]; and
(c) the
Class C Pass Through Trustee shall purchase Series C Equipment Notes in the
amount of $[__________].
The
Company hereby instructs the Class A Pass Through Trustee to (i) execute a
Withdrawal Certificate in the form of Annex A hereto dated as of [__________]
and attach thereto a Notice of Purchase Withdrawal dated such date completed
as
set forth on Exhibit A hereto and (ii) deliver such Withdrawal Certificate
and
Notice of Purchase Withdrawal to the applicable Escrow Agent.
The
Company hereby instructs the Class B Pass Through Trustee to (i) execute a
Withdrawal Certificate in the form of Annex A hereto dated as of [__________]
and attach thereto a Notice of Purchase Withdrawal dated such date completed
as
set forth on Exhibit B hereto and (ii) deliver such Withdrawal Certificate
and
Notice of Purchase Withdrawal to the applicable Escrow Agent.
The
Company hereby instructs the Class C Pass Through Trustee to (i) execute a
Withdrawal Certificate in the form of Annex A hereto dated as of [__________]
and attach thereto a Notice of Purchase Withdrawal dated such date completed
as
set forth on Exhibit C hereto and (ii) deliver such Withdrawal Certificate
and
Notice of Purchase Withdrawal to the applicable Escrow Agent.
The
Company hereby instructs each Applicable Pass Through Trustee to (i) purchase
Equipment Notes of a series and in an amount set forth opposite such Pass
Through Trustee in clause (3) above with a portion of the proceeds of the
withdrawals of Deposits referred to in the applicable Notice of Purchase
Withdrawal referred to above and (ii) re-deposit with the Depositary the excess,
if any, of the amount so withdrawn over
the
purchase price of such Equipment Notes.
The
Company hereby instructs each Applicable Pass Through Trustee to (a) enter
into
the Participation Agreement [____] dated as of [__________] among the Company,
as Owner, and Wilmington Trust Company, as Mortgagee and Loan Participant,
(b)
perform its obligations thereunder and (c) deliver such certificates, documents
and legal opinions relating to such Pass Through Trustee as required thereby.
Yours
faithfully,
Continental
Airlines, Inc.
|
By
|
|
|
Name:
|
|
|
Title:
|
SCHEDULE
A
Wilmington
Trust Company, as
Pass
Through Trustee, Subordination
Agent
and
Paying Agent
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890
Attention:
Corporate Trust Administration
Facsimile:
(302) 636-4140
Wells
Fargo Bank Northwest, National Association,
as
Escrow
Agent
MAC:
U1228-120
299
South
Main Street, 12th Floor
Salt
Lake
City, Utah 84111
Attention:
Corporate Trust Department
Facsimile:
(801) 246-5053
Credit
Suisse, New York Branch,
as
Depositary
11
Madison Avenue
New
York,
New York 10010,
Attention:
Karl Studer
Facsimile:
(212) 743-1894
Attention:
James Palen
Facsimile:
(212) 743-2025
Attention:
Carl Paravati
Facsimile:
(212) 538-5165
Standard
& Poor’s Ratings Services
55
Water
Street, 35th Floor
New
York,
New York 10004
Attention:
Michael K. Vernier
Facsimile:
(212) 438-6632
Moody’s
Investors Service, Inc.
99
Church
Street
New
York,
New York 10007
Attention:
Michael
Mulvaney
Facsimile:
212-553-4661
Annex
A
WITHDRAWAL
CERTIFICATE
(Class
___)
Wells
Fargo Bank Northwest,
National Association,
as
Escrow
Agent
Ladies
and Gentlemen:
Reference
is made to the Escrow and Paying Agent Agreement, dated as of April 10,
2007 (the “Agreement”). We hereby certify to you that the conditions to the
obligations of the undersigned to execute a Participation Agreement pursuant
to
the Note Purchase Agreement have been satisfied. Pursuant to Section 1.02(c)
of
the Agreement, please execute the attached Notice of Purchase Withdrawal and
immediately transmit by facsimile to the Depositary, at Credit Suisse, New
York
Branch, 11 Madison Avenue, New York, New York 10010 (Attention: Karl
Studer/James Palen/Carl Paravati).
Capitalized
terms used herein but not defined herein shall have the meanings set forth
in
the Agreement.
|
Very
truly yours,
|
||
|
WILMINGTON
TRUST COMPANY,
not
in its individual capacity but solely as Pass
Through
Trustee
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
Dated:
As
of [__________ __,
20__]
Exhibit
A
NOTICE
OF
PURCHASE WITHDRAWAL
Credit
Suisse, New York Branch,
as
Depositary
11
Madison Avenue
New
York,
New York 10010,
Attention:
Karl Studer
Telecopier: (212)
325-9163
Attention:
James Palen
Telecopier:
(212) 743-2025
Attention:
Carl Paravati
Facsimile:
(212) 538-5165
Ladies
and Gentlemen:
Reference
is made to the Deposit Agreement (Class A) dated as of April 10, 2007 (the
“Deposit
Agreement”)
between Wells Fargo Bank Northwest, National Association, as Escrow Agent,
and
Credit Suisse, New York Branch, as Depositary (the “Depositary”).
In
accordance with Section 2.3(a) of the Deposit Agreement, the undersigned hereby
requests the withdrawal of the entire amount of the Deposit, $[_______], Account
No. [____].
The
undersigned hereby directs the Depositary to pay the proceeds of the Deposit
to
[___________________], Account No. [____], Reference: [_________] on [________
__, 20___], upon the telephonic request of a representative of the Pass Through
Trustee.
|
WELLS
FARGO BANK NORTHWEST,
NATIONAL
ASSOCIATION,
as
Escrow Agent
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
Dated:
As
of [__________ __, 20__]
Exhibit
B
NOTICE
OF
PURCHASE WITHDRAWAL
Credit
Suisse, New York Branch,
as
Depositary
11
Madison Avenue
New
York,
New York 10010,
Attention:
Karl Studer
Telecopier: (212)
325-9163
Attention:
James Palen
Telecopier: (212)
743-2025
Attention:
Carl Paravati
Facsimile:
(212) 538-5165
Ladies
and Gentlemen:
Reference
is made to the Deposit Agreement (Class B) dated as of April 10, 2007 (the
“Deposit
Agreement”)
between Wells Fargo Bank Northwest, National Association, as Escrow Agent,
and
Credit Suisse, New York Branch, as Depositary (the “Depositary”).
In
accordance with Section 2.3(a) of the Deposit Agreement, the undersigned hereby
requests the withdrawal of the entire amount of the Deposit, $[_______], Account
No. [_____].
The
undersigned hereby directs the Depositary to pay the proceeds of the Deposit
to
[___________________], Account No. [____], Reference: [_________] on [________
__, 20__], upon the telephonic request of a representative of the Pass Through
Trustee.
|
WELLS
FARGO BANK NORTHWEST,
NATIONAL
ASSOCIATION,
as
Escrow Agent
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
Dated:
As
of [__________ __, 20__]
Exhibit
C
NOTICE
OF
PURCHASE WITHDRAWAL
Credit
Suisse, New York Branch,
as
Depositary
11
Madison Avenue
New
York,
New York 10010,
Attention:
Karl Studer
Telecopier: (212)
325-9163
Attention:
James Palen
Telecopier: (212)
743-2025
Attention:
Carl Paravati
Facsimile: (212)
538-5165
Ladies
and Gentlemen:
Reference
is made to the Deposit Agreement (Class C) dated as of April 10, 2007 (the
“Deposit
Agreement”)
between Wells Fargo Bank Northwest, National Association, as Escrow Agent,
and
Credit Suisse, New York Branch, as Depositary (the “Depositary”).
In
accordance with Section 2.3(a) of the Deposit Agreement, the undersigned hereby
requests the withdrawal of the entire amount of the Deposit, $[_______], Account
No. [_____].
The
undersigned hereby directs the Depositary to pay the proceeds of the Deposit
to
[___________________], Account No. [____], Reference: [_________] on [________
__, 20__], upon the telephonic request of a representative of the Pass Through
Trustee.
|
WELLS
FARGO BANK NORTHWEST,
NATIONAL
ASSOCIATION,
as
Escrow Agent
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
Dated:
As
of [__________ __, 20__]
EXHIBIT
B
to
Note
Purchase Agreement
[FILED
SEPARATELY]
EXHIBIT
C
to
Note
Purchase Agreement
[FILED
SEPARATELY]
|
EXHIBIT
B
|
|
TO
|
|
NOTE
PURCHASE AGREEMENT
|
|
CONFIDENTIAL:
Subject
to Restrictions on Dissemination
Set
Forth in Section 7 of this
Agreement
|
PARTICIPATION
AGREEMENT [___]
Dated
as
of [_____________]
Among
CONTINENTAL
AIRLINES, INC.,
Owner,
and
WILMINGTON
TRUST COMPANY,
Not
in
its individual capacity
except
as
expressly provided herein,
but
solely as Mortgagee, Subordination Agent
under
the
Intercreditor Agreement and Pass Through Trustee
under
each of the Applicable Pass Through Trust Agreements
____________________________
One
Boeing Model [_________] Aircraft
Bearing
Manufacturer’s Serial No.[______]
and
U.S.
Registration No. N[_______]
|
SECTION
1. DEFINITIONS AND CONSTRUCTION
|
2
|
|
SECTION
2. SECURED LOANS; CLOSING
|
2
|
|
2
|
|
|
2.2
Closing
|
3
|
|
SECTION
3. [Intentionally omitted]
|
3
|
|
SECTION
4. CONDITIONS PRECEDENT
|
3
|
|
3
|
|
|
7
|
|
|
8
|
|
|
9
|
|
|
SECTION
5. REPRESENTATIONS AND WARRANTIES
|
9
|
|
9
|
|
|
13
|
|
|
SECTION
6. COVENANTS, UNDERTAKINGS AND AGREEMENTS
|
17
|
|
17
|
|
|
6.2
Covenants of WTC
|
19
|
|
20
|
|
|
6.4
Agreements
|
21
|
|
SECTION
7. CONFIDENTIALITY
|
25
|
|
SECTION
8. INDEMNIFICATION AND EXPENSES
|
26
|
|
26
|
|
|
8.2
Expenses
|
32
|
|
33
|
|
|
8.4
Payments
|
43
|
|
8.5
Interest
|
43
|
|
43
|
|
|
SECTION
9. ASSIGNMENT OR TRANSFER OF INTEREST
|
44
|
|
9.1
Note Holders
|
44
|
|
44
|
|
|
SECTION
10. SECTION 1110
|
45
|
PAGE
i
|
SECTION
11. CHANGE OF CITIZENSHIP
|
45
|
|
11.1
Generally
|
45
|
|
11.2
Mortgagee
|
45
|
|
SECTION
12. MISCELLANEOUS
|
45
|
|
12.1
Amendments
|
45
|
|
12.2
Severability
|
46
|
|
12.3
Survival
|
46
|
|
46
|
|
|
12.5
Counterparts
|
47
|
|
12.6
No Waiver
|
47
|
|
12.7
Notices
|
47
|
|
48
|
|
|
49
|
|
|
12.10
Entire Agreement
|
49
|
|
12.11
Further Assurances
|
49
|
SCHEDULES
AND EXHIBITS
|
SCHEDULE
1 -
|
|
|
SCHEDULE
2 -
|
|
|
SCHEDULE
3 -
|
|
|
SCHEDULE
4 -
|
|
|
EXHIBIT
A -
|
Opinion
of special counsel to Owner
|
|
EXHIBIT
B -
|
Opinion
of corporate counsel to Owner
|
|
EXHIBIT
C -
|
Opinion
of special counsel to Mortgagee and to the Applicable Pass Through
Trustees
|
|
EXHIBIT
D -
|
Opinion
of special counsel in Oklahoma City,
Oklahoma
|
PARTICIPATION
AGREEMENT [___]
PARTICIPATION
AGREEMENT[____], dated as of [____________] (this “Agreement”), among
(a) CONTINENTAL AIRLINES, INC., a Delaware corporation (“Owner”),
(b) WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its
individual capacity, except as expressly provided herein, but solely as
Mortgagee (in its capacity as Mortgagee, “Mortgagee” and in its individual
capacity, “WTC”), (c) WILMINGTON TRUST COMPANY, not in its individual
capacity, except as expressly provided herein, but solely as Pass Through
Trustee under each of the Applicable Pass Through Trust Agreements (each, an
“Applicable Pass Through Trustee”) and (d) WILMINGTON TRUST COMPANY, not in
its individual capacity, except as expressly provided herein, but solely as
Subordination Agent under the Intercreditor Agreement (“Subordination
Agent”).
RECITALS
A. Owner
and
Airframe Manufacturer have entered into the Purchase Agreement, pursuant to
which, among other things, Airframe Manufacturer has agreed to manufacture
and
sell to Owner and Owner has agreed to purchase from Airframe Manufacturer,
certain aircraft, including the Aircraft.
B. Pursuant
to each of the Pass Through Trust Agreements, the Pass Through Trusts were
created and the Pass Through Certificates were issued and sold.
C. Each
Applicable Pass Through Trustee has agreed to use a portion of the proceeds
from
the issuance and sale of the Pass Through Certificates issued by each Applicable
Pass Through Trust to purchase from Owner, on behalf of the related Applicable
Pass Through Trust, the Equipment Note bearing the same interest rate as the
Pass Through Certificates issued by such Pass Through Trust.
D. Owner
and
Mortgagee, concurrently with the execution and delivery hereof, have entered
into the Trust Indenture for the benefit of the Note Holders, pursuant to which,
among other things, Owner agrees (1) to issue Equipment Notes, in the amounts
and otherwise as provided in the Trust Indenture, and (2) to mortgage,
pledge and assign to Mortgagee all of Owner’s right, title and interest in the
Collateral to secure the Secured Obligations, including, without limitation,
Owner’s obligations under the Equipment Notes.
E. The
parties hereto wish to set forth in this Agreement the terms and conditions
upon
and subject to which the aforesaid transactions shall be effected.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION
1. DEFINITIONS
AND CONSTRUCTION
Capitalized
terms used but not defined herein (including in the initial paragraph and
Recitals above) shall have the respective meanings set forth or incorporated
by
reference, and shall be construed and interpreted in the manner described,
in
Annex A to the Trust Indenture.
SECTION
2. SECURED
LOANS; CLOSING
2.1 Making
of Loans and Issuance of Equipment Notes
Subject
to the terms and conditions of this Agreement, on the date hereof or on such
other date agreed to by the parties hereto (the “Closing Date”):
|
(a)
|
Each
Applicable Pass Through Trustee listed on Schedule 2 shall make a
secured
loan to the Owner in the amount in Dollars opposite such Trustee’s name on
Schedule 2; and
|
|
(b)
|
The
Owner shall issue, pursuant to and in accordance with the provisions
of
Article II of the Trust Indenture, to the Subordination Agent as
the
registered holder on behalf of each such Applicable Pass Through
Trustee,
one or more Equipment Notes, dated the Closing Date, of the Series
set
forth opposite such Trustee’s name on Schedule 2, in an aggregate
principal amount equal to the amount of the secured loan made by
each such
Applicable Pass Through Trustee.
|
In
addition, the Owner shall have the option after the Closing Date to redeem
and
reissue Series B or Series C Equipment Notes and to issue from time to time
Additional Series Equipment Notes, subject to the terms of the Note Purchase
Agreement and the Intercreditor Agreement. If Series B, Series C or Additional
Series Equipment Notes are so reissued or issued after the Closing Date, the
Note Holder of such Equipment Notes
shall
be
entitled to execute a counterpart to this Agreement and become a party
hereto.
2.2 Closing
(a) The
Closing of the transactions contemplated hereby shall take place at the offices
of Hughes Hubbard & Reed LLP, One Battery Park Plaza, New York, New
York 10004, or at such other place as the parties shall agree.
(b) All
payments pursuant to this Section 2 shall be made in immediately available
funds
to such accounts set forth in Schedule 1 hereto.
SECTION
3. [Intentionally
omitted]
SECTION
4. CONDITIONS
PRECEDENT
4.1 Conditions
Precedent to the Obligations of the Pass Through Trustees
The
obligation of each Applicable Pass Through Trustee listed on Schedule 2 to
make
the secured loan described in Section 2.1(a) and to participate in the
transactions contemplated by this Agreement on the Closing Date is subject
to
the fulfillment, prior to or on the Closing Date, of the following conditions
precedent:
4.1.1 Equipment
Notes
The
Owner
shall have tendered the Equipment Notes to be issued to such Applicable Pass
Through Trustees to the Mortgagee for authentication and the Mortgagee shall
have authenticated such Equipment Notes to be issued to such Applicable Pass
Through Trustees and shall have tendered the Equipment Notes to the
Subordination Agent on behalf of such Pass Through Trustee, against receipt
of
the loan proceeds, in accordance with Section 2.1.
4.1.2 Delivery
of Documents
The
Subordination Agent on behalf of each such Applicable Pass Through Trustee
shall
have received executed counterparts or conformed copies of the following
documents:
(i)
this
Agreement;
(ii)
the
Trust Indenture;
(iii)
the
initial Trust Indenture Supplement;
(iv)
the
broker’s report and insurance certificates required by Section 4.06 of the
Trust Indenture;
(v)
the
Consent and Agreement and the Engine Consent and Agreement;
(vi)
the
Bills of Sale;
(vii)
(A) a copy of the Certificate of Incorporation and By-Laws of Owner and
resolutions of the board of directors of Owner and/or the executive committee
thereof, in each case certified as of the Closing Date, by the Secretary or
an
Assistant Secretary of Owner, duly authorizing the execution, delivery and
performance by Owner of the Operative Agreements to which it is party required
to be executed and delivered by Owner on or prior to the Closing Date in
accordance with the provisions hereof and thereof; and (B) an incumbency
certificate of Owner as to the person or persons authorized to execute and
deliver the Operative Agreements on behalf of Owner;
(viii)
an
Officer’s Certificate of Owner, dated as of the Closing Date, stating that its
representations and warranties set forth in this Agreement are true and correct
as of the Closing Date (or, to the extent that any such representation and
warranty expressly relates to an earlier date, true and correct as of such
earlier date);
(ix)
the
Financing Statements;
(x)
the
following opinions of counsel, in each case dated the Closing Date:
(A) an
opinion of Hughes Hubbard & Reed LLP, special counsel to Owner,
substantially in the form of Exhibit A;
(B) an
opinion of Owner’s Legal Department, substantially in the form of
Exhibit B;
(C) an
opinion of Richards, Layton & Finger, special counsel to Mortgagee and to
the Applicable Pass Through Trustees, substantially in the form of
Exhibit C;
(D) an
opinion of Lytle Soulé & Curlee, special counsel in Oklahoma City, Oklahoma,
substantially in the form of Exhibit D; and
(xi)
a
copy of a current, valid Standard Certificate of Airworthiness for the Aircraft
duly issued by the FAA, together with a copy of a duly executed application
for
registration of the Aircraft with the FAA in the name of the Owner.
4.1.3 Perfected
Security Interest
On
the
Closing Date, after giving effect to the filing of the FAA Filed Documents,
the
Financing Statements and the registration of the International Interest (or
Prospective International Interest) of the Mortgagee in the Airframe and each
Engine with the International Registry, Mortgagee shall have received a duly
perfected first priority security interest in all of Owner’s right, title and
interest in the Aircraft, subject only to Permitted Liens.
4.1.4 Violation
of Law
No
change
shall have occurred after the date of this Agreement in any applicable Law
that
makes it a violation of Law for (a) Owner, any Applicable Pass Through
Trustee, Subordination Agent or Mortgagee to execute, deliver and perform the
Operative Agreements to which any of them is a party or (b) any Applicable
Pass Through Trustee to make the loan contemplated by Section 2.1, to acquire
an
Equipment Note or to realize the benefits of the security afforded by the Trust
Indenture.
4.1.5 Representations,
Warranties and Covenants
The
representations and warranties of each other party to this Agreement made,
in
each case, in this Agreement and in any other Operative Agreement to which
it is
a party, shall be true and accurate in all material respects as of the Closing
Date (unless any such representation and warranty shall have been made with
reference to a specified date, in which case such representation and warranty
shall be true and accurate as of such specified date) and each other party
to
this Agreement shall have performed and observed, in all material respects,
all
of its covenants, obligations and agreements in this Agreement and in any other
Operative Agreement to which it is a party to be observed or performed by it
as
of the Closing Date.
4.1.6 No
Event of Default
On
the
Closing Date, no event shall have occurred and be continuing, or would result
from the mortgage of the Aircraft, which constitutes a Default or an Event
of
Default.
4.1.7 No
Event of Loss
No
Event
of Loss with respect to the Airframe or any Engine shall have occurred and
no
circumstance, condition, act or event that, with the giving of notice or lapse
of time or both, would give rise to or constitute an Event of Loss with respect
to the Airframe or any Engine shall have occurred.
4.1.8 Title
Owner
shall have good title (subject to filing and recordation of the FAA Bill of
Sale
with the FAA) to the Aircraft, free and clear of all Liens, except Permitted
Liens.
4.1.9 Certification
The
Aircraft shall have been duly certificated by the FAA as to type and
airworthiness in accordance with the terms of the Purchase
Agreement.
4.1.10 Section
1110
Mortgagee
shall be entitled to the benefits of Section 1110 (as currently in effect)
with respect to the right to take possession of the Airframe and Engines and
to
enforce any of its other rights or remedies as provided in the Trust Indenture
in the event of a case under Chapter 11 of the Bankruptcy Code in which
Owner is a debtor.
4.1.11 Filing
On
the
Closing Date (a) the FAA Filed Documents shall have been duly filed for
recordation (or shall be in the process of being so duly filed for recordation)
with the FAA in accordance with the Act, (b) the sale of the Airframe and
Engines to the Owner and the International Interest (or Prospective
International Interest) of the Mortgagee therein granted (or to be granted)
under the Trust Indenture shall have been registered with the International
Registry and there shall exist no registered International Interest with respect
to the Airframe or either Engine on the International Registry and (c) each
Financing Statement shall have been duly filed (or shall be in
the
process of being so duly filed) in the appropriate jurisdiction.
4.1.12 No
Proceedings
No
action
or proceeding shall have been instituted, nor shall any action be threatened
in
writing, before any Government Entity, nor shall any order, judgment or decree
have been issued or proposed to be issued by any Government Entity, to set
aside, restrain, enjoin or prevent the completion and consummation of this
Agreement or any other Operative Agreement or the transactions contemplated
hereby or thereby.
4.1.13 Governmental
Action
All
appropriate action required to have been taken prior to the Closing Date by
the
FAA, or any governmental or political agency, subdivision or instrumentality
of
the United States, in connection with the transactions contemplated by this
Agreement shall have been taken, and all orders, permits, waivers,
authorizations, exemptions and approvals of such entities required to be in
effect on the Closing Date in connection with the transactions contemplated
by
this Agreement shall have been issued.
4.1.14 Note
Purchase Agreement
The
conditions precedent to the obligations of the Applicable Pass Through Trustees
and the other requirements relating to the Aircraft and the Equipment Notes
set
forth in the Note Purchase Agreement shall have been satisfied.
4.2 Conditions
Precedent to Obligations of Mortgagee
The
obligation of Mortgagee to authenticate the Equipment Notes on the Closing
Date
is subject to the satisfaction or waiver by Mortgagee, on or prior to the
Closing Date, of the conditions precedent set forth below in this Section
4.2.
4.2.1 Documents
Executed
originals of the agreements, instruments, certificates or documents described
in
Section 4.1.2 shall have been received by Mortgagee, except as specifically
provided therein, unless the failure to receive any such agreement, instrument,
certificate or document is the result of any action or inaction by
Mortgagee.
4.2.2 Other
Conditions Precedent
Each
of
the conditions set forth in Sections 4.1.4, 4.1.5, 4.1.6 and 4.1.10 shall
have been satisfied unless the failure of any such condition to be satisfied
is
the result of any action or inaction by Mortgagee.
4.3 Conditions
Precedent to Obligations of Owner
The
obligation of Owner to participate in the transaction contemplated hereby on
the
Closing Date is subject to the satisfaction or waiver by Owner, on or prior
to
the Closing Date, of the conditions precedent set forth below in this
Section 4.3.
4.3.1 Documents
Executed
originals of the agreements, instruments, certificates or documents described
in
Section 4.1.2 shall have been received by Owner, except as specifically
provided therein, and shall be satisfactory to Owner, unless the failure to
receive any such agreement, instrument, certificate or document is the result
of
any action or inaction by Owner. In addition, the Owner shall have received
the
following:
(i)
(A) an incumbency certificate of WTC as to the person or persons authorized
to execute and deliver the Operative Agreements on behalf of WTC and (B) a
copy of the Certificate of Incorporation and By-Laws and general authorizing
resolution of the board of directors (or executive committee) or other
satisfactory evidence of authorization of WTC, certified as of the Closing
Date
by the Secretary or Assistant or Attesting Secretary of WTC, which authorize
the
execution, delivery and performance by WTC of the Operative Agreements to which
it is a party; and
(ii)
an
Officer’s Certificate of WTC, dated as of the Closing Date, stating that its
representations and warranties in its individual capacity or as Mortgagee,
an
Applicable Pass Through Trustee or Subordination Agent, as the case may be,
set
forth in this Agreement are true and correct as of the Closing Date (or, to
the
extent that any such representation and warranty expressly relates to an earlier
date, true and correct as of such earlier date);
4.3.2 Other
Conditions Precedent
Each
of
the conditions set forth in Sections 4.1.4, 4.1.5, 4.1.6, 4.1.7, 4.1.8,
4.1.9, 4.1.10, 4.1.11, 4.1.12 and 4.1.13 shall have been satisfied or waived
by
Owner, unless the failure of any such condition to be satisfied is the result
of
any action or inaction by Owner.
4.4 Post-Registration
Opinion
Promptly
upon the registration of the Aircraft and the recordation of the FAA Filed
Documents pursuant to the Act, Owner will cause Lytle Soulé & Curlee,
special counsel in Oklahoma City, Oklahoma, to deliver to Owner, each Pass
Through Trustee and Mortgagee a favorable opinion or opinions addressed to
each
of them with respect to such registration and recordation.
SECTION
5. REPRESENTATIONS
AND WARRANTIES
5.1 Owner’s
Representations and Warranties
Owner
represents and warrants to each Pass Through Trustee, Subordination Agent and
Mortgagee that:
5.1.1 Organization;
Qualification
Owner
is
a corporation duly incorporated, validly existing and in good standing under
the
Laws of the State of Delaware and has the corporate power and authority to
conduct the business in which it is currently engaged and to own or hold under
lease its properties and to enter into and perform its obligations under the
Operative Agreements to which it is party. Owner is duly qualified to do
business as a foreign corporation in good standing in each jurisdiction in
which
the nature and extent of the business conducted by it, or the ownership of
its
properties, requires such qualification, except where the failure to be so
qualified would not give rise to a Material Adverse Change to
Owner.
5.1.2 Corporate
Authorization
Owner
has
taken, or caused to be taken, all necessary corporate action (including, without
limitation, the obtaining of any consent or approval of stockholders required
by
its Certificate of Incorporation or By-Laws) to authorize the execution and
delivery of each of the Operative Agreements to
which
it
is party, and the performance of its obligations thereunder.
5.1.3 No
Violation
The
execution and delivery by Owner of the Operative Agreements to which it is
party, the performance by Owner of its obligations thereunder and the
consummation by Owner on the Closing Date of the transactions contemplated
thereby, do not and will not (a) violate any provision of the Certificate
of Incorporation or By-Laws of Owner, (b) violate any Law applicable to or
binding on Owner or (c) violate or constitute any default under (other than
any violation or default that would not result in a Material Adverse Change
to
Owner), or result in the creation of any Lien (other than as permitted under
the
Trust Indenture) upon the Aircraft under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, lease, loan or other
material agreement, instrument or document to which Owner is a party or by
which
Owner or any of its properties is bound.
5.1.4 Approvals
The
execution and delivery by Owner of the Operative Agreements to which Owner
is a
party, the performance by Owner of its obligations thereunder and the
consummation by Owner on the Closing Date of the transactions contemplated
thereby do not and will not require the consent or approval of, or the giving
of
notice to, or the registration with, or the recording or filing of any documents
with, or the taking of any other action in respect of, (a) any trustee or
other holder of any Debt of Owner and (b) any Government Entity, other than
the filing of (x) the FAA Filed Documents and the Financing Statements (and
continuation statements periodically), (y) the registration of the International
Interest (or Prospective International Interest) in, and the sale to the Owner
of, the Airframe and Engines with the International Registry and
(z) filings, recordings, notices or other ministerial actions pursuant to
any routine recording, contractual or regulatory requirements applicable to
it.
5.1.5 Valid
and Binding Agreements
The
Operative Agreements to which Owner is a party have been duly authorized,
executed and delivered by Owner and, assuming the due authorization, execution
and delivery thereof by the other party or parties thereto, constitute the
legal, valid and binding obligations of Owner and are enforceable
against
Owner in accordance with the respective terms thereof, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar Laws affecting the rights of
creditors generally and general principles of equity, whether considered in
a
proceeding at law or in equity.
5.1.6 Registration
and Recordation
Except
for (a) the registration of the Aircraft with the FAA pursuant to the Act
in the name of Owner, (b) the filing with the FAA of the AC Forms 8050-135
with respect to the sale of the Airframe and Engines to Owner and the
International Interests (or Prospective International Interests) granted under
the Trust Indenture thereon and the filing with the FAA for recordation (and
recordation) of the other FAA Filed Documents, (c) the registration of the
International Interest (or Prospective International Interest) in, and the
sale
to the Owner of, the Airframe and Engines on with the International Registry,
(d) the filing of the Financing Statements (and continuation statements
relating thereto at periodic intervals), and (e) the affixation of the
nameplates referred to in Section 4.02(f) of the Trust Indenture, no
further action, including any filing or recording of any document (including
any
financing statement in respect thereof under Article 9 of the UCC) is necessary
in order to establish and perfect Mortgagee’s security interest in the Aircraft
as against Owner and any other Person, in each case, in any applicable
jurisdictions in the United States.
5.1.7 Owner’s
Location
The
Owner’s location (as such term is used in Section 9-307 of the UCC) is
Delaware. The full and correct legal name and mailing address of Owner are
correctly set forth in Schedule 1 hereto in the column “Address for
Notices”.
5.1.8 No
Event of Loss
No
Event
of Loss has occurred with respect to the Airframe or any Engine, and, to the
Actual Knowledge of Owner, no circumstance, condition, act or event has occurred
that, with the giving of notice or lapse of time or both gives rise to or
constitutes an Event of Loss with respect to the Airframe or any
Engine.
5.1.9 Compliance
With Laws
(a) Owner
is
a Citizen of the United States and a U.S. Air Carrier.
(b) Owner
holds all licenses, permits and franchises from the appropriate Government
Entities necessary to authorize Owner to lawfully engage in air transportation
and to carry on scheduled commercial passenger service as currently conducted,
except where the failure to so hold any such license, permit or franchise would
not give rise to a Material Adverse Change to Owner.
(c) Owner
is
not an "investment
company"
or a
company controlled by an "investment
company"
within
the meaning of the Investment Company Act of 1940, as amended.
5.1.10 Securities
Laws
Neither
Owner nor any person authorized to act on its behalf has directly or indirectly
offered any beneficial interest or Security relating to the ownership of the
Aircraft, or any of the Equipment Notes or any other interest in or security
under the Trust Indenture, for sale to, or solicited any offer to acquire any
such interest or security from, or has sold any such interest or security to,
any person in violation of the Securities Act.
5.1.11 Broker’s
Fees
No
Person
acting on behalf of Owner is or will be entitled to any broker’s fee, commission
or finder’s fee in connection with the Transactions, other than the fees and
expenses payable by Owner in connection with the sale of the Pass Through
Certificates.
5.1.12 Section
1110
Mortgagee
is entitled to the benefits of Section 1110 (as currently in effect) with
respect to the right to take possession of the Airframe and Engines and to
enforce any of its other rights or remedies as provided in the Trust Indenture
in the event of a case under Chapter 11 of the Bankruptcy Code in which Owner
is
a debtor.
5.1.13 Cape
Town
The
Owner
is a Transactional User Entity; is “situated”, for the purposes of the Cape Town
Treaty, in the United States; and has the power to “dispose” (as such term is
used in the Cape Town Treaty) of the Airframe and each Engine. The Bills of
Sale
for the Airframe and Engines constitutes a “contract of sale” (as defined in the
Cape Town Treaty), and the Trust Indenture, as supplemented by the Trust
Indenture Supplement in which such Airframe and Engines are listed, creates
an
International Interest in such Airframe and Engines. The Airframe and each
Engine are “aircraft objects” (as defined in the Cape Town Treaty); and the
United States is a Contracting State under the Cape Town Treaty.
5.2 WTC’s
Representations and Warranties
WTC
represents and warrants (with respect to Section 5.2.10, solely in its
capacity as Subordination Agent) to Owner that:
5.2.1 Organization,
Etc.
WTC
is a
Delaware banking corporation duly organized, validly existing and in good
standing under the Laws of the State of Delaware, holding a valid certificate
to
do business as a Delaware banking corporation with banking authority to execute
and deliver, and perform its obligations under, the Applicable Pass Through
Trustee Agreements and the Operative Agreements to which it is a
party.
5.2.2 Corporate
Authorization
WTC
has
taken, or caused to be taken, all necessary corporate action (including, without
limitation, the obtaining of any consent or approval of stockholders required
by
Law or by its Certificate of Incorporation or By-Laws) to authorize the
execution and delivery by WTC, in its individual capacity or as Mortgagee,
a
Pass Through Trustee or Subordination Agent, as the case may be, of the Pass
Through Trustee Agreements and the Operative Agreements to which it is a party
and the performance of its obligations thereunder.
5.2.3 No
Violation
The
execution and delivery by WTC, in its individual capacity or as Mortgagee,
a
Pass Through Trustee or Subordination Agent, as the case may be, of the Pass
Through Trustee Agreements and the Operative Agreements to which it is a party,
the performance by WTC, in its individual capacity or as
Mortgagee,
a Pass Through Trustee or Subordination Agent, as the case may be, of its
obligations thereunder and the consummation on the Closing Date of the
transactions contemplated thereby, do not and will not (a) violate any
provision of the Certificate of Incorporation or By-Laws of WTC,
(b) violate any Law applicable to or binding on WTC, in its individual
capacity or (except in the case of any Law relating to any Plan) as Mortgagee,
a
Pass Through Trustee or Subordination Agent, or (c) violate or constitute
any default under (other than any violation or default that would not result
in
a Material Adverse Change to WTC, in its individual capacity or Mortgagee,
a
Pass Through Trustee or Subordination Agent), or result in the creation of
any
Lien (other than the Lien of the Trust Indenture) upon any property of WTC,
in
its individual capacity or as Mortgagee, a Pass Through Trustee or Subordination
Agent, or any of WTC’s subsidiaries under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, lease, loan or other
agreement, instrument or document to which WTC, in its individual capacity
or as
Mortgagee, a Pass Through Trustee or Subordination Agent, is a party or by
which
WTC, in its individual capacity or as Mortgagee, a Pass Through Trustee or
Subordination Agent, or any of their respective properties is
bound.
5.2.4 Approvals
The
execution and delivery by WTC, in its individual capacity or as Mortgagee,
a
Pass Through Trustee or Subordination Agent, as the case may be, of the Pass
Through Trustee Agreements and the Operative Agreements to which it is a party,
the performance by WTC, in its individual capacity or as Mortgagee, a Pass
Through Trustee or Subordination Agent, as the case may be, of its obligations
thereunder and the consummation on the Closing Date by WTC, in its individual
capacity or as Mortgagee, a Pass Through Trustee or Subordination Agent, as
the
case may be, of the transactions contemplated thereby do not and will not
require the consent, approval or authorization of, or the giving of notice
to,
or the registration with, or the recording or filing of any documents with,
or
the taking of any other action in respect of, (a) any trustee or other
holder of any Debt of WTC or (b) any Government Entity, other than the
filing of the FAA Filed Documents and the Financing Statements.
5.2.5 Valid
and Binding Agreements
The
Pass
Through Trustee Agreements and the Operative Agreements to which it is a party
have been duly authorized, executed and delivered by WTC and, assuming the
due
authorization,
execution and delivery by the other party or parties thereto, constitute the
legal, valid and binding obligations of WTC, in its individual capacity or
as
Mortgagee, a Pass Through Trustee or Subordination Agent, as the case may be,
and are enforceable against WTC, in its individual capacity or as Mortgagee,
a
Pass Through Trustee or Subordination Agent, as the case may be, in accordance
with the respective terms thereof, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar Laws affecting the rights of creditors generally and general principles
of equity, whether considered in a proceeding at law or in equity.
5.2.6 Citizenship
WTC
is a
Citizen of the United States.
5.2.7 No
Liens
On
the
Closing Date, there are no Liens attributable to WTC in respect of all or any
part of the Collateral.
5.2.8 Litigation
There
are
no pending or, to the Actual Knowledge of WTC, threatened actions or proceedings
against WTC, in its individual capacity or as Mortgagee, a Pass Through Trustee
or Subordination Agent, before any court, administrative agency or tribunal
which, if determined adversely to WTC, in its individual capacity or as
Mortgagee, a Pass Through Trustee or Subordination Agent, as the case may be,
would materially adversely affect the ability of WTC, in its individual capacity
or as Mortgagee, a Pass Through Trustee or Subordination Agent, as the case
may
be, to perform its obligations under any of the Mortgagee Agreements, the Pass
Through Trustee Agreements or the Subordination Agent Agreements.
5.2.9 Securities
Laws
Neither
WTC nor any person authorized to act on its behalf has directly or indirectly
offered any beneficial interest or Security relating to the ownership of the
Aircraft or any interest in the Collateral or any of the Equipment Notes or
any
other interest in or security under the Collateral for sale to, or solicited
any
offer to acquire any such interest or security from, or has sold any such
interest or security to, any Person other than the Subordination Agent and
the
Pass Through
Trustees,
except for the offering and sale of the Pass Through Certificates.
5.2.10 Investment
The
Equipment Notes to be acquired by the Subordination Agent are being acquired
by
it for the account of the Applicable Pass Through Trustees, for investment
and
not with a view to any resale or distribution thereof, except that, subject
to
the restrictions on transfer set forth in Section 9, the disposition by it
of its Equipment Notes shall at all times be within its control.
5.2.11 Taxes
There
are
no Taxes payable by any Applicable Pass Through Trustee or WTC, as the case
may
be, imposed by the State of Delaware or any political subdivision or taxing
authority thereof in connection with the execution, delivery and performance
by
such Pass Through Trustee or WTC, as the case may be, of this Agreement or
any
of the Pass Through Trustee Agreements (other than franchise or other taxes
based on or measured by any fees or compensation received by any such Pass
Through Trustee or WTC, as the case may be, for services rendered in connection
with the transactions contemplated by any of the Pass Through Trust Agreements),
and there are no Taxes payable by any Applicable Pass Through Trustee or WTC,
as
the case may be, imposed by the State of Delaware or any political subdivision
thereof in connection with the acquisition, possession or ownership by any
such
Pass Through Trustee of any of the Equipment Notes (other than franchise or
other taxes based on or measured by any fees or compensation received by any
such Pass Through Trustee or WTC, as the case may be, for services rendered
in
connection with the transactions contemplated by any of the Pass Through Trust
Agreements), and, assuming that the trusts created by the Pass Through Trust
Agreements will not be taxable as corporations, but, rather, each will be
characterized as a grantor trust under subpart E, Part I of Subchapter J of
the
Code or as a partnership under Subchapter K of the Code, such trusts will not
be
subject to any Taxes imposed by the State of Delaware or any political
subdivision thereof;
5.2.12 Broker’s
Fees
No
Person
acting on behalf of WTC, in its individual capacity or as Mortgagee, any
Applicable Pass Through Trustee or
Subordination
Agent, is or will be entitled to any broker’s fee, commission or finder’s fee in
connection with the Transactions.
SECTION
6. COVENANTS,
UNDERTAKINGS AND AGREEMENTS
6.1 Covenants
of Owner
Owner
covenants and agrees, at its own cost and expense, with Note Holder and
Mortgagee as follows:
6.1.1 Corporate
Existence; U.S. Air Carrier
Owner
shall at all times maintain its corporate existence, except as permitted by
Section 4.07 of the Trust Indenture, and shall at all times remain a U.S.
Air Carrier.
6.1.2 Notice
of Change of Location
Owner
will give Mortgagee timely written notice (but in any event within 30 days
prior
to the expiration of the period of time specified under applicable Law to
prevent lapse of perfection) of any change in its location (as such term is
used
in Section 9-307 of the UCC) or legal name and will promptly take any
action required by Section 6.1.3(c) as a result of such
relocation.
6.1.3 Certain
Assurances
(a) Owner
shall duly execute, acknowledge and deliver, or shall cause to be executed,
acknowledged and delivered, all such further agreements, instruments,
certificates or documents, and shall do and cause to be done such further acts
and things, in any case, as Mortgagee shall reasonably request for accomplishing
the purposes of this Agreement and the other Operative Agreements, provided that
any
instrument or other document so executed by Owner will not expand any
obligations or limit any rights of Owner in respect of the transactions
contemplated by any Operative Agreement.
(b) Owner
shall promptly take such action with respect to the recording, filing,
re-recording and refiling of the Trust Indenture and any supplements thereto,
including, without limitation, the initial Trust Indenture Supplement, as shall
be necessary to continue the perfection and priority of the Lien created by
the
Trust Indenture.
(c) Owner,
at
its sole cost and expense, will cause the FAA Filed Documents, the Financing
Statements and all
continuation
statements (and any amendments necessitated by any combination, consolidation
or
merger of the Owner, or any relocation of its chief executive office) in respect
of the Financing Statements to be prepared and, subject only to the execution
and delivery thereof by Mortgagee, duly and timely filed and recorded, or filed
for recordation, to the extent permitted under the Act (with respect to the
FAA
Filed Documents) or the UCC or similar law of any other applicable jurisdiction
(with respect to such other documents). Mortgagee, and not Owner, shall be
responsible for any amendments to the foregoing documents and filings,
recordings and registrations thereof necessitated in any such case by any
combination, consolidation or merger of Mortgagee or change in the Mortgagee’s
name, status, jurisdiction of organization or address.
(d) If
the
Aircraft has been registered in a country other than the United States pursuant
to Section 4.02(e) of the Trust Indenture, Owner will furnish to Mortgagee
annually after such registration, commencing with the calendar year after such
registration is effected, an opinion of special counsel reasonably satisfactory
to Mortgagee stating that, in the opinion of such counsel, either that
(i) such action has been taken with respect to the recording, filing,
rerecording and refiling of the Operative Agreements and any supplements and
amendments thereto as is necessary to establish, perfect and protect the Lien
created by the Trust Indenture, reciting the details of such actions, or
(ii) no such action is necessary to maintain the perfection of such
Lien.
6.1.4 Securities
Laws
Neither
Owner nor any person authorized to act on its behalf will directly or indirectly
offer any beneficial interest or Security relating to the ownership of the
Aircraft or any interest in any of the Equipment Notes or any other interest
in
or security under the Trust Indenture, for sale to, or solicit any offer to
acquire any such interest or security from, or sell any such interest or
security to, any person in violation of the Securities Act or applicable state
or foreign securities Laws.
6.1.5. Notice
of Lease
Owner
shall give to Standard & Poor’s Ratings Services, a division of McGraw-Hill
Companies, Inc., a copy of any notice regarding a lease of the Aircraft required
to be given to the Mortgagee pursuant to clause (w) of the first sentence
of the penultimate paragraph of Section 4.02(b) of the Mortgage, at the
time
such
notice is given to Mortgagee, if at such time Standard & Poor’s is then
rating the Pass Through Certificates.
6.2 Covenants
of WTC
WTC
in
its individual capacity or as Mortgagee, each Applicable Pass Through Trustee
or
Subordination Agent, as the case may be, covenants and agrees with Owner as
follows:
6.2.1 Liens
WTC
(a)
will not directly or indirectly create, incur, assume or suffer to exist any
Lien attributable to it on or with respect to all or any part of the Collateral
or the Aircraft, (b) will, at its own cost and expense, promptly take such
action as may be necessary to discharge any Lien attributable to WTC on all
or
any part of the Collateral or the Aircraft and (c) will personally hold harmless
and indemnify Owner, each Note Holder, each of their respective Affiliates,
successors and permitted assigns, and the Collateral from and against (i) any
and all Expenses, (ii) any reduction in the amount payable out of the
Collateral, and (iii) any interference with the possession, operation or other
use of all or any part of the Aircraft, imposed on, incurred by or asserted
against any of the foregoing as a consequence of any such Lien.
6.2.2 Securities
Act
WTC
in
its individual capacity or as Mortgagee, an Applicable Pass Through Trustee
or
Subordination Agent, will not offer any beneficial interest or Security relating
to the ownership of the Aircraft or any interest in the Collateral, or any
of
the Equipment Notes or any other interest in or security under the Trust
Indenture for sale to, or solicit any offer to acquire any such interest or
security from, or sell any such interest or security to, any Person in violation
of the Securities Act or applicable state or foreign securities Laws, provided
that the foregoing shall not be deemed to impose on WTC any responsibility
with
respect to any such offer, sale or solicitation by any other party
hereto.
6.2.3 Performance
of Agreements
WTC,
in
its individual capacity and as Mortgagee, an Applicable Pass Through Trustee
or
Subordination Agent, as the case may be, shall perform its obligations under
the
Pass Through Trustee Agreements and the Operative Agreements in accordance
with
the terms thereof.
6.2.4 Withholding
Taxes
WTC
shall
indemnify (on an after-tax basis) and hold harmless Owner against any United
States withholding taxes (and related interest, penalties and additions to
tax)
as a result of the failure by WTC to withhold on payments to any Note Holder
if
such Note Holder failed to provide to Mortgagee necessary certificates or forms
to substantiate the right to exemption from such withholding tax.
6.3 Covenants
of Note Holders
Each
Note
Holder (including Subordination Agent) as to itself only covenants and agrees
with Owner and Mortgagee as follows:
6.3.1 Withholding
Taxes
Such
Note
Holder (if it is a Non-U.S. Person) agrees to indemnify (on an after-tax basis)
and hold harmless Owner and Mortgagee against any United States withholding
taxes (and related interest, penalties and additions to tax) as a result of
the
inaccuracy or invalidity of any certificate or form provided by such Note Holder
to Mortgagee in connection with such withholding taxes. Any amount payable
hereunder shall be paid within 30 days after receipt by a Note Holder of a
written demand therefor.
6.3.2 Transfer;
Compliance
(a) Such
Note
Holder will (i) not transfer any Equipment Note or interest therein in violation
of the Securities Act or applicable state or foreign securities Law;
provided,
that
the foregoing provisions of this section shall not be deemed to impose on such
Note Holder any responsibility with respect to any such offer, sale or
solicitation by any other party hereto, and (ii) perform and comply with the
obligations specified to be imposed on it (as a Note Holder) under each of
the
Trust Indenture and the form of Equipment Note set forth in the Trust
Indenture.
(b) Except
for the transfer of the interests of each Applicable Pass Through Trustee in
the
Equipment Notes to the trustee of the Related Trust (as defined in each
Applicable Pass Through Trust Agreement) in accordance with the related
Applicable Pass Through Trust Agreement, each Note Holder will not sell, assign,
convey, exchange or otherwise transfer any Equipment Note or any interest in,
or
represented by, any
Equipment
Note (it being understood that this provision is not applicable to the Pass
Through Certificates) unless the proposed transferee thereof first provides
Owner with both of the following:
(i)
a
written representation and covenant that either (a) no portion of the funds
it
uses to purchase, acquire and hold such Equipment Note or interest directly
or
indirectly constitutes, or may be deemed under the Code or ERISA or any rulings,
regulations or court decisions thereunder to constitute, the assets of any
Plan
or (b) the transfer, and subsequent holding, of such Equipment Note or interest
shall not involve or give rise to a transaction that constitutes a prohibited
transaction within the meaning of Section 406 of ERISA or Section 4975(c)(1)
of
the Code involving Owner, a Pass Through Trustee, the Subordination Agent or
the
proposed transferee (other than a transaction that is exempted from the
prohibitions of such sections by applicable provisions of ERISA or the Code
or
administrative exemptions or regulations issued thereunder); and
(ii)
a
written covenant that it will not transfer any Equipment Note or any interest
in, or represented by, any Equipment Note unless the subsequent transferee
also
makes the representation described in clause (i) above and agrees to comply
with
this clause (ii).
6.4 Agreements
6.4.1 Quiet
Enjoyment
Each
Applicable Pass Through Trustee, Subordination Agent, each Note Holder and
Mortgagee agrees as to itself with Owner that, so long as no Event of Default
shall have occurred and be continuing, such Person shall not (and shall not
permit any Affiliate or other Person claiming by, through or under it to)
interfere with Owner’s rights in accordance with the Indenture to the quiet
enjoyment, possession and use of the Aircraft.
6.4.2 Consents
Each
Pass
Through Trustee, Subordination Agent and Mortgagee covenants and agrees, for
the
benefit of Owner, that it shall not unreasonably withhold its consent to any
consent or approval requested of it under the terms of any of the Operative
Agreements which by its terms is not to be unreasonably withheld.
6.4.3 Insurance
Each
Pass
Through Trustee, Subordination Agent, Mortgagee and each Note Holder agrees
not
to obtain or maintain insurance for its own account as permitted by
Section 4.06 of the Trust Indenture if such insurance would limit or
otherwise adversely affect the coverage of any insurance required to be obtained
or maintained by Owner pursuant to Section 4.06 of the Trust
Indenture.
6.4.4 Extent
of Interest of Note Holders
A
Note
Holder shall not, as such, have any further interest in, or other right with
respect to, the Collateral when and if the principal and Make-Whole Amount,
if
any, of and interest on the Equipment Note held by such Holder, and all other
sums, then due and payable to such Holder hereunder and under any other
Operative Agreement, shall have been paid in full. The preceding sentence shall
not limit the rights of the Related Note Holders with respect to Related Secured
Obligations under the Trust Indenture, provided
that a
Related Note Holder shall not, as such, have any further interest in, or other
right with respect to, the Collateral when and if the Related Secured
Obligations attributable to the Related Equipment Note held by such Holder
shall
have been paid in full.
6.4.5 Foreign
Registration
Each
Note
Holder and Mortgagee hereby agree, for the benefit of Owner but subject to
the
provisions of Section 4.02(b) of the Trust Indenture:
(a) that
Owner shall be entitled to register the Aircraft or cause the Aircraft to be
registered in a country other than the United States subject to compliance
with
the following:
(i)
each
of the following requirements is satisfied:
|
(A)
|
no
Special Default or Event of Default shall have occurred and be continuing
at the time of such registration;
|
|
(B)
|
such
proposed change of registration is made in connection with a Permitted
Lease to a Permitted Air Carrier;
and
|
|
(C)
|
such
country is a country with which the United States then maintains
normal
diplomatic relations
|
or,
if
Taiwan, the United States then maintains diplomatic relations at least as good
as those in effect on the Closing Date;
(ii)
the
Mortgagee shall have received an opinion of counsel (subject to customary
exceptions) reasonably satisfactory to the Mortgagee addressed to Mortgagee
as
to the effect that:
(A) such
country would recognize the Owner’s ownership interest in the
Aircraft;
(B) after
giving effect to such change in registration, the Lien of the Trust Indenture
on
the Owner’s right, title and interest in and to the Aircraft shall continue as a
valid and duly perfected first priority security interest and International
Interest and all filing, recording or other action necessary to protect the
same
shall have been accomplished (or, if such opinion cannot be given at the time
of
such proposed change in registration because such change in registration is
not
yet effective, (1) the opinion shall detail what filing, recording or other
action is necessary and (2) the Mortgagee shall have received a certificate
from Owner that all possible preparations to accomplish such filing, recording
and other action shall have been done, and such filing, recording and other
action shall be accomplished and a supplemental opinion to that effect shall
be
delivered to the Mortgagee on or prior to the effective date of such change
in
registration);
(C) unless
Owner or the Permitted Air Carrier shall have agreed to provide insurance
covering the risk of requisition of use of the Aircraft by the government of
such country (so long as the Aircraft is registered under the laws of such
country), the laws of such country require fair compensation by the government
of such country payable in currency freely convertible into Dollars and freely
removable from such country (without license or permit, unless Owner prior
to
such proposed reregistration has obtained such license or permit) for the taking
or requisition by such government of such use; and
(D) it
is not
necessary, solely as a consequence of such change in registration and without
giving
effect
to
any other activity of the Mortgagee (or any Affiliate of the Mortgagee), for
the
Mortgagee to qualify to do business in such jurisdiction as a result of such
reregistration in order to exercise any rights or remedies with respect to
the
Aircraft.
(b) In
addition, as a condition precedent to any change in registration Owner shall
have given to Mortgagee assurances reasonably satisfactory to
Mortgagee:
(i) to
the
effect that the provisions of Section 4.06 of the Trust Indenture have been
complied with after giving effect to such change of registration;
(ii) of
the
payment by Owner of all reasonable out-of-pocket expenses of each Note Holder
and Mortgagee in connection with such change of registry, including, without
limitation (1) the reasonable fees and disbursements of counsel to
Mortgagee, (2) any filing or recording fees, Taxes or similar payments
incurred in connection with the change of registration of the Aircraft and
the
creation and perfection of the security interest therein in favor of Mortgagee
for the benefit of Note Holders, and (3) all costs and expenses incurred in
connection with any filings necessary to continue in the United States the
perfection of the security interest in the Aircraft in favor of Mortgagee for
the benefit of Note Holders; and
(iii) to
the
effect that the tax and other indemnities in favor of each person named as
an
indemnitee under any other Operative Agreement afford each such person
substantially the same protection as provided prior to such change of
registration (or Owner shall have agreed upon additional indemnities that,
together with such original indemnities, in the reasonable judgment of
Mortgagee, afford such protection).
6.4.6 Interest
in Certain Engines
Each
Note
Holder and Mortgagee agree, for the benefit of each of the lessor, conditional
seller, mortgagee or secured party of any airframe or engine leased to, or
purchased by, Owner or any Permitted Lessee subject to a lease, conditional
sale, trust indenture or other security agreement that it will
not
acquire or claim, as against such lessor, conditional seller, mortgagee or
secured party, any right, title or interest in any engine as the result of
such
engine being installed on the Airframe at any time while such engine is subject
to such lease, conditional sale, trust indenture or other security agreement
and
owned by such lessor or conditional seller or subject to a trust indenture
or
security interest in favor of such mortgagee or secured party.
SECTION
7. CONFIDENTIALITY
Owner,
Note Holders and Mortgagee shall keep the Participation Agreement and Annex
B to
the Trust Indenture confidential and shall not disclose, or cause to be
disclosed, the same to any Person, except (A) to prospective and permitted
transferees of Owner’s, a Note Holder’s, the Liquidity Provider’s, Mortgagee’s
or other Indenture Indemnitee’s interest or their respective counsel or special
counsel, independent insurance brokers, auditors, or other agents who agree
to
hold such information confidential, (B) to Owner’s, a Note Holder’s, the
Liquidity Provider’s, a Pass Through Trustee’s, Mortgagee’s or other Indenture
Indemnitee’s counsel or special counsel, independent insurance brokers,
auditors, or other agents, Affiliates or investors who agree to hold such
information confidential, (C) as may be required by any statute, court or
administrative order or decree, legal process or governmental ruling or
regulation, including those of any applicable insurance regulatory bodies
(including, without limitation, the National Association of Insurance
Commissioners), federal or state banking examiners, Internal Revenue Service
auditors or any stock exchange, (D) with respect to a Note Holder or any Pass
Through Trustee, to a nationally recognized rating agency for the purpose of
obtaining a rating on the Equipment Notes or the Pass Through Certificates
or to
support an NAIC rating for the Equipment Notes or (E) such other Persons as
are reasonably deemed necessary by the disclosing party in order to protect
the
interests of such party or for the purposes of enforcing such documents by
such
party; provided,
that
any and all disclosures permitted by clauses (C), (D), or (E) above shall
be made only to the extent necessary to meet the specific requirements or needs
of the Persons making such disclosures.
SECTION
8. INDEMNIFICATION
AND EXPENSES
8.1 General
Indemnity
8.1.1 Indemnity
Whether
or not any of the transactions contemplated hereby are consummated, Owner shall
indemnify, protect, defend and hold harmless each Indemnitee from, against
and
in respect of, and shall pay on a net after-tax basis, any and all Expenses
of
any kind or nature whatsoever that may be imposed on, incurred by or asserted
against any Indemnitee, relating to, resulting from, or arising out of or in
connection with, any one or more of the following:
(a) The
Operative Agreements, the Pass Through Agreements, or the enforcement of any
of
the terms of any of the Operative Agreements or the Pass Through
Agreements;
(b) The
Aircraft, the Airframe, any Engine or any Part, including, without limitation,
with respect thereto, (i) the manufacture, design, purchase, acceptance,
nonacceptance or rejection, ownership, registration, reregistration,
deregistration, delivery, nondelivery, lease, sublease, assignment, possession,
use or non-use, operation, maintenance, testing, repair, overhaul, condition,
alteration, modification, addition, improvement, storage, airworthiness,
replacement, repair, sale, substitution, return, abandonment, redelivery or
other disposition of the Aircraft, any Engine or any Part, (ii) any claim or
penalty arising out of violations of applicable Laws by Owner (or any Permitted
Lessee), (iii) tort liability, whether or not arising out of the negligence
of
any Indemnitee (whether active, passive or imputed), (iv) death or property
damage of passengers, shippers or others, (v) environmental control, noise
or
pollution and (vi) any Liens in respect of the Aircraft, any Engine or any
Part;
(c) The
offer, sale, or delivery of any Equipment Notes, Pass Through Certificates
or
any interest therein or represented thereby; and
(d) Any
breach of or failure to perform or observe, or any other noncompliance with,
any
covenant or agreement or other obligation to be performed by Owner under any
Operative Agreement to which it is party or any Pass Through Agreement or the
falsity of any representation or warranty of Owner in any Operative Agreement
to
which it is party or any Pass Through Agreement.
8.1.2 Exceptions
Notwithstanding
anything contained in Section 8.1.1, Owner shall not be required to
indemnify, protect, defend and hold harmless any Indemnitee pursuant to
Section 8.1.1 in respect of any Expense of such Indemnitee:
(a) For
any
Taxes or a loss of Tax benefit, whether or not Owner is required to indemnify
therefor pursuant to Section 8.3;
(b) Except
to
the extent attributable to acts or events occurring prior thereto, acts or
events (other than acts or events related to the performance by Owner of its
obligations pursuant to the terms of the Operative Agreements) that occur after
the Trust Indenture is required to be terminated in accordance with Section
11.01 of the Trust Indenture; provided,
that
nothing in this clause (b) shall be deemed to exclude or limit any claim that
any Indemnitee may have under applicable Law by reason of an Event of Default
or
for damages from Owner for breach of Owner’s covenants contained in the
Operative Agreements or to release Owner from any of its obligations under
the
Operative Agreements that expressly provide for performance after termination
of
the Trust Indenture;
(c) To
the
extent attributable to any Transfer (voluntary or involuntary) by or on behalf
of such Indemnitee of any Equipment Note or interest therein, except for
out-of-pocket costs and expenses incurred as a result of any such Transfer
pursuant to the exercise of remedies under any Operative Agreement;
(d) [Intentionally
Omitted]
(e) To
the
extent attributable to the gross negligence or willful misconduct of such
Indemnitee or any related Indemnitee (as defined below) (other than gross
negligence or willful misconduct imputed to such person by reason of its
interest in the Aircraft or any Operative Agreement);
(f) [Intentionally
Omitted]
(g) To
the
extent attributable to the incorrectness or breach of any representation or
warranty of such Indemnitee or any related Indemnitee contained in or made
pursuant to any Operative Agreement or any Pass Through Agreement;
(h) To
the
extent attributable to the failure by such Indemnitee or any related Indemnitee
to perform or observe any
agreement,
covenant or condition on its part to be performed or observed in any Operative
Agreement or any Pass Through Agreement;
(i) To
the
extent attributable to the offer or sale by such Indemnitee or any related
Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass
Through Certificates, or any similar interest, in violation of the Securities
Act or other applicable federal, state or foreign securities Laws (other than
any thereof caused by acts or omissions of Owner);
(j) (i) With
respect to any Indemnitee (other than Mortgagee), to the extent attributable
to
the failure of the Mortgagee to distribute funds received and distributable
by
it in accordance with the Trust Indenture, (ii) with respect to any
Indemnitee (other than the Subordination Agent), to the extent attributable
to
the failure of the Subordination Agent to distribute funds received and
distributable by it in accordance with the Intercreditor Agreement,
(iii) with respect to any Indemnitee (other than the Pass Through
Trustees), to the extent attributable to the failure of a Pass Through Trustee
to distribute funds received and distributable by it in accordance with the
Pass
Through Trust Agreements, (iv) with respect to any Indemnitee (other than
the Escrow Agent), to the extent attributable to the failure of the Escrow
Agent
to pay funds received and payable by it in accordance with any Escrow Agreement,
(v) with respect to any Indemnitee (other than the Paying Agent), to the
extent attributable to the failure of the Paying Agent to distribute funds
received and distributable by it in accordance with any Escrow Agreement,
(vi) to the extent attributable to the failure of the Depositary to pay
funds payable by it in accordance with any Deposit Agreement, (vii) with
respect to Mortgagee, to the extent attributable to the negligence or willful
misconduct of Mortgagee in the distribution of funds received and distributable
by it in accordance with the Trust Indenture, (viii) with respect to the
Subordination Agent, to the extent attributable to the negligence or willful
misconduct of the Subordination Agent in the distribution of funds received
and
distributable by it in accordance with the Intercreditor Agreement,
(ix) with respect to the Pass Through Trustees, to the extent attributable
to the negligence or willful misconduct of a Pass Through Trustee in the
distribution of funds received and distributable by it in accordance with the
Pass Through Trust Agreements, (x) with respect to the Escrow Agent, to the
extent attributable to the negligence or willful misconduct of the Escrow Agent
in the payment of funds received and payable by it in accordance with
any
Escrow Agreement and (xi) with respect to the Paying Agent, to the extent
attributable to the negligence or willful misconduct of the Paying Agent in
the
distribution of funds received and distributable by it in accordance with any
Escrow Agreement;
(k) Other
than during the continuation of an Event of Default, to the extent attributable
to the authorization or giving or withholding of any future amendments,
supplements, waivers or consents with respect to any Operative Agreement or
Pass
Through Agreement other than such as have been requested by Owner or as are
required by or made pursuant to the terms of the Operative Agreements or Pass
Through Agreements (unless such requirement results from the actions of an
Indemnitee not required by or made pursuant to the Operative Agreements or
the
Pass Through Agreements);
(l) To
the
extent attributable to any amount which any Indemnitee expressly agrees to
pay
or such Indemnitee expressly agrees shall not be paid by or be reimbursed by
Owner;
(m) To
the
extent that it is an ordinary and usual operating or overhead
expense;
(n) [Intentionally
Omitted]
(o) For
any
Lien attributable to such Indemnitee or any related Indemnitee;
(p) If
another provision of an Operative Agreement or a Pass Through Agreement
specifies the extent of Owner’s responsibility or obligation with respect to
such Expense, to the extent arising from other than failure of Owner to comply
with such specified responsibility or obligation; or
(q) To
the
extent incurred by or asserted against an Indemnitee as a result of any
"prohibited
transaction",
within
the meaning of Section 406 of ERISA or Section 4975(c)(1) of the
Code.
For
purposes of this Section 8.1, a Person shall be considered a "related"
Indemnitee with respect to an Indemnitee if such Person is an Affiliate or
employer of such Indemnitee, a director, officer, employee, agent, or servant
of
such Indemnitee or any such Affiliate or a successor or permitted assignee
of
any of the foregoing.
8.1.3 Separate
Agreement
This
Agreement constitutes a separate agreement with respect to each Indemnitee
and
is enforceable directly by each such Indemnitee.
8.1.4 Notice
If
a
claim for any Expense that an Indemnitee shall be indemnified against under
this
Section 8.1 is made, such Indemnitee shall give prompt written notice
thereof to Owner. Notwithstanding the foregoing, the failure of any Indemnitee
to notify Owner as provided in this Section 8.1.4, or in Section 8.1.5,
shall not release Owner from any of its obligations to indemnify such Indemnitee
hereunder, except to the extent that such failure results in an additional
Expense to Owner (in which event Owner shall not be responsible for such
additional expense) or materially impairs Owner’s ability to contest such
claim.
8.1.5 Notice
of Proceedings; Defense of Claims; Limitations
(a) In
case
any action, suit or proceeding shall be brought against any Indemnitee for
which
Owner is responsible under this Section 8.1, such Indemnitee shall notify
Owner of the commencement thereof and Owner may, at its expense, participate
in
and to the extent that it shall wish (subject to the provisions of the following
paragraph), assume and control the defense thereof and, subject to
Section 8.1.5(c), settle or compromise the same.
(b) Owner
or
its insurer(s) shall have the right, at its or their expense, to investigate
or,
if Owner or its insurer(s) shall agree not to dispute liability to the
Indemnitee giving notice of such action, suit or proceeding under this
Section 8.1.5 for indemnification hereunder or under any insurance policies
pursuant to which coverage is sought, control the defense of, any action, suit
or proceeding, relating to any Expense for which indemnification is sought
pursuant to this Section 8.1, and each Indemnitee shall cooperate with
Owner or its insurer(s) with respect thereto; provided,
that
Owner shall not be entitled to control the defense of any such action, suit,
proceeding or compromise any such Expense during the continuance of any Event
of
Default. In connection with any such action, suit or proceeding being controlled
by Owner, such Indemnitee shall have the right to participate therein, at its
sole cost and expense, with counsel reasonably satisfactory to Owner;
provided,
that
such Indemnitee’s participation does not, in the reasonable opinion of the
independent counsel appointed by the Owner or its insurers to conduct such
proceedings, interfere with the defense of such case.
(c) In
no
event shall any Indemnitee enter into a settlement or other compromise with
respect to any Expense without the prior written consent of Owner, which consent
shall not be unreasonably withheld or delayed, unless such Indemnitee waives
its
right to be indemnified with respect to such Expense under this Section
8.1.
(d) In
the
case of any Expense indemnified by the Owner hereunder which is covered by
a
policy of insurance maintained by Owner pursuant to Section 4.06 of the
Indenture, at Owner’s expense, each Indemnitee agrees to cooperate with the
insurers in the exercise of their rights to investigate, defend or compromise
such Expense as may be required to retain the benefits of such insurance with
respect to such Expense.
(e) If
an
Indemnitee is not a party to this Agreement, Owner may require such Indemnitee
to agree in writing to the terms of this Section 8 and Section 12.8
prior to making any payment to such Indemnitee under this
Section 8.
(f) Nothing
contained in this Section 8.1.5 shall be deemed to require an Indemnitee to
contest any Expense or to assume responsibility for or control of any judicial
proceeding with respect thereto.
8.1.6 Information
Owner
will provide the relevant Indemnitee with such information not within the
control of such Indemnitee, as is in Owner’s control or is reasonably available
to Owner, which such Indemnitee may reasonably request and will otherwise
cooperate with such Indemnitee so as to enable such Indemnitee to fulfill its
obligations under Section 8.1.5. The Indemnitee shall supply Owner with
such information not within the control of Owner, as is in such Indemnitee’s
control or is reasonably available to such Indemnitee, which Owner may
reasonably request to control or participate in any proceeding to the extent
permitted by Section 8.1.5.
8.1.7 Effect
of Other Indemnities; Subrogation; Further Assurances
Upon
the
payment in full by Owner of any indemnity provided for under this Agreement,
Owner, without any further action and to the full extent permitted by Law,
will
be subrogated to all rights and remedies of the person indemnified (other than
with respect to any of such Indemnitee’s insurance policies or in connection
with any indemnity claim such Indemnitee may have under Section 6.03 or
8.01 of the Trust Indenture) in respect of the matter as to which such indemnity
was paid. Each Indemnitee will give such further assurances or agreements and
cooperate with Owner to permit Owner to pursue such claims, if any, to the
extent reasonably requested by Owner and at Owner’s expense.
8.1.8 Refunds
If
an
Indemnitee receives any refund, in whole or in part, with respect to any Expense
paid by Owner hereunder, it will promptly pay the amount refunded (but not
an
amount in excess of the amount Owner or any of its insurers has paid in respect
of such Expense) over to Owner unless an Event of Default shall have occurred
and be continuing, in which case such amounts shall be paid over to Mortgagee
to
hold as security for Owner’s obligations under the Operative Agreements or, if
requested by Owner, applied to satisfy such obligations.
8.2 Expenses
8.2.1 Invoices
and Payment
The
Mortgagee, the Applicable Pass Through Trustees and the Subordination Agent
shall promptly submit to Owner for its prompt approval (which shall not be
unreasonably withheld) copies of invoices in reasonable detail of the
Transaction Expenses for which it is responsible for providing information
as
they are received (but in no event later than the 90th day after the Closing
Date). If so submitted and approved, the Owner agrees promptly, but in any
event
no later than the 105th day after the Closing Date, to pay Transaction Expenses.
8.2.2 Payment
of Other Expenses
Owner
shall pay (i) the ongoing fees and expenses of Mortgagee, and (ii) all
reasonable out-of-pocket costs and expenses (including the reasonable fees
and
disbursements of counsel) incurred by Mortgagee or any Note Holder attributable
to
any
waiver, amendment or modification of any Operative Agreement to the extent
requested by Owner.
8.3 General
Tax Indemnity
8.3.1 General
Except
as
provided in Section 8.3.2, Owner agrees that each payment paid by Owner under
the Equipment Notes, and any other payment or indemnity paid by Owner to a
Tax
Indemnitee under any Operative Agreement, shall be free of all withholdings
or
deductions with respect to Taxes of any nature (other than U.S. federal, state
or local withholding taxes on, based on or measured by gross or net income),
and
in the event that Owner shall be required by applicable law to make any such
withholding or deduction for any such payment (x) Owner shall make all such
withholdings or deductions, (y) the amount payable by Owner shall be increased
so that after making all required withholdings or deductions such Tax Indemnitee
receives the same amount that it would have received had no such withholdings
or
deductions been made, and (z) Owner shall pay the full amount withheld or
deducted to the relevant Taxing Authority in accordance with applicable law.
Except as provided in Section 8.3.2 and whether or not any of the transactions
contemplated hereby are consummated, Owner shall pay, indemnify, protect, defend
and hold each Tax Indemnitee harmless from all Taxes imposed by any Taxing
Authority that may from time to time be imposed on or asserted against any
Tax
Indemnitee or the Aircraft, the Airframe, any Engine or any Part or any interest
in any of the foregoing (whether or not indemnified against by any other
Person), upon or with respect to the Operative Agreements or the transactions
or
payments contemplated thereby, including but not limited to any Tax imposed
upon
or with respect to (x) the Aircraft, the Airframe, any Engine, any Part,
any Operative Agreement (including without limitation any Equipment Notes)
or
any data or any other thing delivered or to be delivered under an Operative
Agreement, (y) the purchase, manufacture, acceptance, rejection, sale,
transfer of title, return, ownership, mortgaging, delivery, transport, charter,
rental, lease, re-lease, sublease, assignment, possession, repossession,
presence, use, condition, storage, preparation, maintenance, modification,
alteration, improvement, operation, registration, transfer or change of
registration, reregistration, repair, replacement, overhaul, location, control,
the imposition of any Lien, financing, refinancing requested by the Owner,
abandonment or other disposition of the Aircraft, the Airframe, any Engine,
any
Part, any data or any other thing delivered or to be delivered under an
Operative
Agreement
or (z) interest, fees or any other income, proceeds, receipts or earnings,
whether actual or deemed, arising upon, in connection with, or in respect of,
any of the Operative Agreements (including the property or income or other
proceeds with respect to property held as part of the Collateral) or the
transactions contemplated thereby.
8.3.2 Certain
Exceptions
The
provisions of Section 8.3.1 shall not apply to, and Owner shall have no
liability hereunder for, Taxes:
(a) imposed
on a Tax Indemnitee by the federal government of the United States or any Taxing
Authority or governmental subdivision of the United States or therein (including
any state or local Taxing Authority) (i) on, based on, or measured by, gross
or
net income or gross or net receipts, including capital gains taxes, excess
profits taxes, minimum taxes from tax preferences, alternative minimum taxes,
branch profits taxes, accumulated earnings taxes, personal holding company
taxes, succession taxes and estate taxes, and any withholding taxes on, based
on
or measured by gross or net income or receipts or (ii) on, or with respect
to,
or measured by, capital or net worth or in the nature of a franchise tax or
a
tax for the privilege of doing business (other than, in the case of clause
(i)
or (ii), sales, use, license or property Taxes);
(b) imposed
on a Tax Indemnitee by any Taxing Authority or governmental subdivision thereof
or therein outside of the United States (including any Taxing Authority in
or of
a territory, possession or commonwealth of the United States) (i) on, based
on,
or measured by, gross or net income or gross or net receipts, including capital
gains taxes, excess profits taxes, minimum taxes from tax preferences,
alternative minimum taxes, branch profits taxes, accumulated earnings taxes,
personal holding company taxes, succession taxes and estate taxes, and any
withholding taxes on, based on or measured by gross or net income or receipts
or
(ii) on, or with respect to, or measured by, capital or net worth or in the
nature of a franchise tax or a tax for the privilege of doing business (other
than, in the case of clause (i) or (ii), (A) sales, use, license or property
Taxes, or (B) any Taxes imposed by any Taxing Authority (other than a Taxing
Authority within whose jurisdiction such Tax Indemnitee is incorporated or
organized or maintains its principal place of business) if such Tax Indemnitee
would not have been subject to Taxes of such type by such jurisdiction but
for
(I) the location, use or operation of the Aircraft, the Airframe, any Engine
or
any Part thereof by an
Owner
Person within the jurisdiction of the Taxing Authority imposing such Tax, or
(II) the activities of any Owner Person in such jurisdiction, including, but
not
limited to, use of any other aircraft by Owner in such jurisdiction, (III)
the
status of any Owner Person as a foreign entity or as an entity owned in whole
or
in part by foreign persons, (IV) Owner having made (or having been deemed to
have made) payments to such Tax Indemnitee from the relevant jurisdiction or
(V) in the case of the Pass Through Trustees, the Note Holders or any
related Tax Indemnitee, the Owner being incorporated or organized or maintaining
a place of business or conducting activities in such jurisdiction);
(c) on,
or
with respect to, or measured by, any trustee fees, commissions or compensation
received by the Pass Through Trustee, Subordination Agent or
Mortgagee;
(d) that
are
being contested as provided in Section 8.3.4 hereof;
(e) imposed
on any Tax Indemnitee to the extent that such Taxes result from the gross
negligence or willful misconduct of such Tax Indemnitee or any Affiliate
thereof;
(f) imposed
on or with respect to a Tax Indemnitee (including the transferee in those cases
in which the Tax on transfer is imposed on, or is collected from, the
transferee) as a result of a transfer or other disposition (including a deemed
transfer or disposition) by such Tax Indemnitee or a related Tax Indemnitee
of
any interest in the Aircraft, the Airframe, any Engine or any Part, any interest
arising under the Operative Agreements or any Equipment Note or as a result
of a
transfer or disposition (including a deemed transfer or disposition) of any
interest in a Tax Indemnitee (other than (A) a substitution or replacement
of
the Aircraft, the Airframe, any Engine or any Part by an Owner Person that
is
treated for Tax purposes as a transfer or disposition, or (B) a transfer
pursuant to an exercise of remedies upon an Event of Default that shall have
occurred and have been continuing);
(g) Taxes
in
excess of those that would have been imposed had there not been a transfer
or
other disposition by or to such Tax Indemnitee or a related Tax Indemnitee
described in paragraph (f) above;
(h) consisting
of any interest, penalties or additions to tax imposed on a Tax Indemnitee
as a
result of (in whole or in part) failure of such Tax Indemnitee or a related
Tax
Indemnitee
to
file
any return properly and timely, unless such failure shall be caused by the
failure of Owner to fulfill its obligations, if any, under Section 8.3.6
with respect to such return;
(i) resulting
from, or that would not have been imposed but for, any Liens arising as a result
of claims against, or acts or omissions of, or otherwise attributable to such
Tax Indemnitee or a related Tax Indemnitee that the Owner is not obligated
to
discharge under the Operative Agreements;
(j) imposed
on any Tax Indemnitee as a result of the breach by such Tax Indemnitee or a
related Tax Indemnitee of any covenant of such Tax Indemnitee or any Affiliate
thereof contained in any Operative Agreement or the inaccuracy of any
representation or warranty by such Tax Indemnitee or any Affiliate thereof
in
any Operative Agreement;
(k) in
the
nature of an intangible or similar Tax (i) upon or with respect to the value
or
principal amount of the interest of any Note Holder in any Equipment Note or
the
loan evidenced thereby but only if such Taxes are in the nature of franchise
Taxes or result from the Tax Indemnitee doing business in the taxing
jurisdiction and are imposed because of the place of incorporation or the
activities unrelated to the transactions contemplated by the Operative
Agreements in the taxing jurisdiction of such Tax Indemnitee;
(l) imposed
on a Tax Indemnitee by a Taxing Authority of a jurisdiction outside the United
States to the extent that such Taxes would not have been imposed but for a
connection between the Tax Indemnitee or a related Tax Indemnitee and such
jurisdiction imposing such Tax unrelated to the transactions contemplated by
the
Operative Agreements; or
(m) Taxes
relating to ERISA or Section 4975 of the Code.
For
purposes hereof, a Tax Indemnitee and any other Tax Indemnitees that are
successors, assigns, agents, servants or Affiliates of such Tax Indemnitee
shall
be related Tax Indemnitees.
8.3.3 Payment
(a) Owner’s
indemnity obligation to a Tax Indemnitee under this Section 8.3 shall equal
the
amount which, after taking into account any Tax imposed upon the receipt or
accrual of the amounts payable under this Section 8.3 and any tax benefits
actually
recognized by such Tax Indemnitee as a result of the indemnifiable Tax
(including, without limitation, any benefits recognized as a result of an
indemnifiable Tax being utilized by such Tax Indemnitee as a credit against
Taxes not indemnifiable under this Section 8.3), shall equal the amount of
the
Tax indemnifiable under this Section 8.3.
(b) At
Owner’s request, the computation of the amount of any indemnity payment owed by
Owner or any amount owed by a Tax Indemnitee to Owner pursuant to this Section
8.3 shall be verified and certified by an independent public accounting firm
selected by such Tax Indemnitee and reasonably satisfactory to Owner. Such
verification shall be binding. The costs of such verification (including the
fee
of such public accounting firm) shall be borne by Owner unless such verification
shall result in an adjustment in Owner’s favor of 5% or more of the net present
value of the payment as computed by such Tax Indemnitee, in which case the
costs
shall be paid by such Tax Indemnitee.
(c) Each
Tax
Indemnitee shall provide Owner with such certifications, information and
documentation as shall be in such Tax Indemnitee’s possession and as shall be
reasonably requested by Owner to minimize any indemnity payment pursuant to
this
Section 8.3; provided, that notwithstanding anything to the contrary contained
herein, no Tax Indemnitee shall be required to provide Owner with any Tax
returns.
(d) Each
Tax
Indemnitee shall promptly forward to Owner any written notice, bill or advice
received by it from any Taxing Authority concerning any Tax for which it seeks
indemnification under this Section 8.3. Owner shall pay any amount for which
it
is liable pursuant to this Section 8.3 directly to the appropriate Taxing
Authority if legally permissible or upon demand of a Tax Indemnitee, to such
Tax
Indemnitee within 30 days of such demand (or, if a contest occurs in accordance
with Section 8.3.4, within 30 days after a Final Determination (as defined
below)), but in no event more than one Business Day prior to the date the Tax
to
which such amount payable hereunder relates is due. If requested by a Tax
Indemnitee in writing, Owner shall furnish to the appropriate Tax Indemnitee
the
original or a certified copy of a receipt for Owner’s payment of any Tax paid by
Owner or such other evidence of payment of such Tax as is acceptable to such
Tax
Indemnitee. Owner shall also furnish promptly upon written request such data
as
any Tax Indemnitee may reasonably require to enable such Tax Indemnitee to
comply with the requirements of any taxing jurisdiction unless such data is
not
reasonably available to Owner or, unless such data is specifically requested
by
a Taxing
Authority,
is not customarily furnished by domestic air carriers under similar
circumstances. For purposes of this Section 8.3, a "Final
Determination"
shall
mean (i) a decision, judgment, decree or other order by any court of competent
jurisdiction that occurs pursuant to the provisions of Section 8.3.4, which
decision, judgment, decree or other order has become final and unappealable,
(ii) a closing agreement or settlement agreement entered into in accordance
with
Section 8.3.4 that has become binding and is not subject to further review
or
appeal (absent fraud, misrepresentation, etc.), or (iii) the termination of
administrative proceedings and the expiration of the time for instituting a
claim in a court proceeding.
(e) If
any
Tax Indemnitee shall actually realize a tax savings by reason of any Tax paid
or
indemnified by Owner pursuant to this Section 8.3 (whether such tax savings
shall be by means of a foreign tax credit, depreciation or cost recovery
deduction or otherwise) and such savings is not otherwise taken into account
in
computing such payment or indemnity such Tax Indemnitee shall pay to Owner
an
amount equal to the lesser of (i) the amount of such tax savings, plus any
additional tax savings recognized as the result of any payment made pursuant
to
this sentence, when, as, if, and to the extent, realized or (ii) the amount
of
all payments pursuant to this Section 8.3 by Owner to such Tax Indemnitee (less
any payments previously made by such Tax Indemnitee to Owner pursuant to this
Section 8.3.3 (e)) (and the excess, if any, of the amount described in clause
(i) over the amount described in clause (ii) shall be carried forward and
applied to reduce pro tanto any subsequent obligations of Owner to make payments
to such Tax Indemnitee pursuant to this Section 8.3); provided, that such Tax
Indemnitee shall not be required to make any payment pursuant to this sentence
so long as a Lease Event of Default of a monetary nature has occurred and is
continuing. If a tax benefit is later disallowed or denied, the disallowance
or
denial shall be treated as a Tax indemnifiable under Section 8.3.1 without
regard to the provisions of Section 8.3.2 (other than Section 8.3.2 (f)). Each
such Tax Indemnitee shall in good faith use reasonable efforts in filing its
tax
returns and in dealing with Taxing Authorities to seek and claim any such tax
benefit.
8.3.4 Contest
(a) If
a
written claim is made against a Tax Indemnitee for Taxes with respect to which
Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee
makes a determination that a Tax is due for which Owner could have an indemnity
obligation hereunder, such Tax Indemnitee shall
promptly
give Owner notice in writing of such claim (provided, that failure to so notify
Owner shall not relieve Owner of its indemnity obligations hereunder unless
such
failure to notify effectively forecloses Owner’s rights to require a contest of
such claim) and shall take no action with respect to such claim without the
prior written consent of Owner for 30 days following the receipt of such notice
by Owner; provided, that, in the case of a claim made against a Tax Indemnitee,
if such Tax Indemnitee shall be required by law to take action prior to the
end
of such 30-day period, such Tax Indemnitee shall, in such notice to Owner,
so
inform Owner, and such Tax Indemnitee shall take no action for as long as it
is
legally able to do so (it being understood that a Tax Indemnitee shall be
entitled to pay the Tax claimed and sue for a refund prior to the end of such
30-day period if (i)(A) the failure to so pay the Tax would result in
substantial penalties (unless immediately reimbursed by Owner) and the act
of
paying the Tax would not materially prejudice the right to contest or (B) the
failure to so pay would result in criminal penalties and (ii) such Tax
Indemnitee shall take any action so required in connection with so paying the
Tax in a manner that is the least prejudicial to the pursuit of the contest).
In
addition, such Tax Indemnitee shall (provided, that Owner shall have agreed
to
keep such information confidential other than to the extent necessary in order
to contest the claim) furnish Owner with copies of any requests for information
from any Taxing Authority relating to such Taxes with respect to which Owner
may
be required to indemnify hereunder. If requested by Owner in writing within
30
days after its receipt of such notice, such Tax Indemnitee shall, at the expense
of Owner (including, without limitation, all reasonable costs, expenses and
reasonable attorneys’ and accountants’ fees and disbursements), in good faith
contest (or, if permitted by applicable law, allow Owner to contest) through
appropriate administrative and judicial proceedings the validity, applicability
or amount of such Taxes by (I) resisting payment thereof, (II) not paying the
same except under protest if protest is necessary and proper or (III) if the
payment is made, using reasonable efforts to obtain a refund thereof in an
appropriate administrative and/or judicial proceeding. If requested to do so
by
Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial
decision, except that the Tax Indemnitee shall not be required to pursue any
appeals to the United States Supreme Court. If and to the extent the Tax
Indemnitee is able to separate the contested issue or issues from other issues
arising in the same administrative or judicial proceeding that are unrelated
to
the transactions contemplated by the Operative Agreements without, in the good
faith judgment
of
such
Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee
shall permit Owner to control the conduct of any such proceeding and shall
provide to Owner (at Owner’s cost and expense) with such information or data
that is in such Tax Indemnitee’s control or possession that is reasonably
necessary to conduct such contest. In the case of a contest controlled by a
Tax
Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding
the manner of contesting such claim and shall keep Owner reasonably informed
regarding the progress of such contest. A Tax Indemnitee shall not fail to
take
any action expressly required by this Section 8.3.4 (including, without
limitation, any action regarding any appeal of an adverse determination with
respect to any claim) or settle or compromise any claim without the prior
written consent of the Owner (except as contemplated by Section 8.3.4(b) or
(c)).
(b) Notwithstanding
the foregoing, in no event shall a Tax Indemnitee be required to pursue any
contest (or to permit Owner to pursue any contest) unless (i) Owner shall have
agreed to pay such Tax Indemnitee on demand all reasonable costs and expenses
incurred by such Tax Indemnitee in connection with contesting such Taxes,
including, without limitation, all reasonable out of pocket costs and expenses
and reasonable attorneys’ and accountants’ fees and disbursements, (ii) if such
contest shall involve the payment of the claim, Owner shall advance the amount
thereof (to the extent indemnified hereunder) plus interest, penalties and
additions to tax with respect thereto that are required to be paid prior to
the
commencement of such contest on an interest-free after-Tax basis to such Tax
Indemnitee (and such Tax Indemnitee shall promptly pay to the Owner any net
realized tax benefits resulting from such advance including any tax benefits
resulting from making such payment), (iii) such Tax Indemnitee shall have
reasonably determined that the action to be taken will not result in any
material risk of forfeiture, sale or loss of the Aircraft (unless Owner shall
have made provisions to protect the interests of any such Tax Indemnitee in
a
manner reasonably satisfactory to such Tax Indemnitee) (provided, that such
Tax
Indemnitee agrees to notify Owner in writing promptly after it becomes aware
of
any such risk), (iv) no Lease Event of Default shall have occurred and be
continuing unless Owner has provided security for its obligations hereunder
by
advancing to such Tax Indemnitee before proceeding or continuing with such
contest, the amount of the Tax being contested, plus any interest and penalties
and an amount estimated in good faith by such Tax Indemnitee for expenses,
and
(v) prior to commencing any judicial action controlled by Owner, Owner shall
have acknowledged its liability for such claim
hereunder,
provided that Owner shall not be bound by its acknowledgment if the Final
Determination articulates conclusions of law and fact that demonstrate that
Owner has no liability for the contested amounts hereunder. Notwithstanding
the
foregoing, if any Tax Indemnitee shall release, waive, compromise or settle
any
claim which may be indemnifiable by Owner pursuant to this Section 8.3 without
the written permission of Owner, Owner’s obligation to indemnify such Tax
Indemnitee with respect to such claim (and all directly related claims and
claims based on the outcome of such claim) shall terminate, subject to Section
8.3.4(c), and subject to Section 8.3.4(c), such Tax Indemnitee shall repay
to
Owner any amount previously paid or advanced to such Tax Indemnitee with respect
to such claim, plus interest at the rate that would have been payable by the
relevant Taxing Authority with respect to a refund of such Tax.
(c) Notwithstanding
anything contained in this Section 8.3, a Tax Indemnitee will not be required
to
contest the imposition of any Tax and shall be permitted to settle or compromise
any claim without Owner’s consent if such Tax Indemnitee (i) shall waive its
right to indemnity under this Section 8.3 with respect to such Tax (and any
directly related claim and any claim the outcome of which is determined based
upon the outcome of such claim), (ii) shall pay to Owner any amount previously
paid or advanced by Owner pursuant to this Section 8.3 with respect to such
Tax,
plus interest at the rate that would have been payable by the relevant Taxing
Authority with respect to a refund of such Tax, and (iii) shall agree to discuss
with Owner the views or positions of any relevant Taxing Authority with respect
to the imposition of such Tax.
8.3.5 Refund
If
any
Tax Indemnitee shall receive a refund of, or be entitled to a credit against
other liability for, all or any part of any Taxes paid, reimbursed or advanced
by Owner, such Tax Indemnitee shall pay to Owner within 30 days of such receipt
an amount equal to the lesser of (a) the amount of such refund or credit plus
any net tax benefit (taking into account any Taxes incurred by such Tax
Indemnitee by reason of the receipt of such refund or realization of such
credit) actually realized by such Tax Indemnitee as a result of any payment
by
such Tax Indemnitee made pursuant to this sentence (including this clause (a))
and (b) such tax payment, reimbursement or advance by Owner to such Tax
Indemnitee theretofore made pursuant to this Section 8.3 (and the excess, if
any, of the amount described in clause (a) over the amount described in clause
(b) shall be carried
forward
and applied to reduce pro tanto any subsequent obligation of Owner to make
payments to such Tax Indemnitee pursuant to this Section 8.3). If, in addition
to such refund or credit, such Tax Indemnitee shall receive (or be credited
with) an amount representing interest on the amount of such refund or credit,
such Tax Indemnitee shall pay to Owner within 30 days of such receipt or
realization of such credit that proportion of such interest that shall be fairly
attributable to Taxes paid, reimbursed or advanced by Owner prior to the receipt
of such refund or realization of such credit.
8.3.6 Tax
Filing
If
any
report, return or statement is required to be filed with respect to any Tax
which is subject to indemnification under this Section 8.3, Owner shall timely
file the same (except for any such report, return or statement which a Tax
Indemnitee has timely notified the Owner in writing that such Tax Indemnitee
intends to file, or for which such Tax Indemnitee is required by law to file,
in
its own name); provided, that the relevant Tax Indemnitee shall furnish Owner
with any information in such Tax Indemnitee’s possession or control that is
reasonably necessary to file any such return, report or statement and is
reasonably requested in writing by Owner (it being understood that the Tax
Indemnitee shall not be required to furnish copies of its actual tax returns,
although it may be required to furnish relevant information contained therein).
Owner shall either file such report, return or statement and send a copy of
such
report, return or statement to such Tax Indemnitee, or, where Owner is not
permitted to file such report, return or statement, it shall notify such Tax
Indemnitee of such requirement and prepare and deliver such report, return
or
statement to such Tax Indemnitee in a manner satisfactory to such Tax Indemnitee
within a reasonable time prior to the time such report, return or statement
is
to be filed.
8.3.7 Forms
Each
Tax
Indemnitee agrees to furnish from time to time to Owner or Mortgagee or to
such
other person as Owner or Mortgagee may designate, at Owner’s or Mortgagee’s
request, such duly executed and properly completed forms as may be necessary
or
appropriate in order to claim any reduction of or exemption from any withholding
or other Tax imposed by any Taxing Authority, if (x) such reduction or exemption
is available to such Tax Indemnitee and (y) Owner has provided such Tax
Indemnitee with any information necessary to complete such form not otherwise
reasonably available to such Tax Indemnitee.
8.3.8 Non-Parties
If
a Tax
Indemnitee is not a party to this Agreement, Owner may require the Tax
Indemnitee to agree in writing, in a form reasonably acceptable to Owner, to
the
terms of this Section 8.3 and Section 15.8 prior to making any payment to
such Tax Indemnitee under this Section 8.3.
8.3.9 Subrogation
Upon
payment of any Tax by Owner pursuant to this Section 8.3 to or on behalf of
a
Tax Indemnitee, Owner, without any further action, shall be subrogated to any
claims that such Tax Indemnitee may have relating thereto. Such Tax Indemnitee
shall cooperate with Owner (to the extent such cooperation does not result
in
any unreimbursed cost, expense or liability to such Tax Indemnitee) to permit
Owner to pursue such claims.
8.4 Payments
Any
payments made pursuant to Section 8.1 or 8.3 shall be due on the 60th day
after demand therefor and shall be made directly to the relevant Indemnitee
or
Tax Indemnitee or to Owner, in immediately available funds at such bank or
to
such account as specified by such Indemnitee or Tax Indemnitee or Owner, as
the
case may be, in written directives to the payor, or, if no such direction shall
have been given, by check of the payor payable to the order of, and mailed
to,
such Indemnitee or Tax Indemnitee or Owner, as the case may be, by certified
mail, postage prepaid, at its address as set forth in this
Agreement.
8.5 Interest
If
any
amount, payable by Owner, any Indemnitee or any Tax Indemnitee under
Section 8.1 or 8.3 is not paid when due, the person obligated to make such
payment shall pay on demand, to the extent permitted by Law, to the person
entitled thereto, interest on any such amount for the period from and including
the due date for such amount to but excluding the date the same is paid, at
the
Payment Due Rate. Such interest shall be paid in the same manner as the unpaid
amount in respect of which such interest is due.
8.6 Benefit
of Indemnities
The
obligations of Owner in respect of all indemnities, obligations, adjustments
and
payments in Section 8.1 or 8.3 are expressly made for the benefit of, and
shall be enforceable by,
the
Indemnitee or Tax Indemnitee entitled thereto, notwithstanding any provision
of
the Trust Indenture.
SECTION
9. ASSIGNMENT
OR TRANSFER OF INTEREST
9.1 Note
Holders
Subject
to Section 6.3.2 hereof and Section 2.07 of the Trust Indenture, any Note
Holder may, at any time and from time to time, Transfer or grant participations
in all or any portion of the Equipment Notes and/or all or any portion of its
beneficial interest in its Equipment Notes to any person (it being understood
that the sale or issuance of Pass Through Certificates by a Pass Through Trustee
shall not be considered a Transfer or participation); provided,
that
any participant in any such participations shall not have any direct rights
under the Operative Agreements or any Lien on all or any part of the Aircraft
or
the Collateral and Owner shall not have any increased liability or obligations
as a result of any such participation. In the case of any such Transfer, the
Transferee, by acceptance of Equipment Notes in connection with such Transfer,
shall be deemed to be bound by (i) all of the covenants of Note Holders
contained in the Operative Agreements and (ii) certain terms of the
Intercreditor Agreement as specified in such Equipment Notes and/or Section
2.07
of the Trust Indenture.
9.2 Effect
of Transfer
Upon
any
Transfer in accordance with Section 9.1 (other than any Transfer by any
Note Holder, to the extent it only grants participations in Equipment Notes
or
in its beneficial interest therein), Transferee shall be deemed a "Note
Holder,"
for all
purposes of this Agreement and the other Operative Agreements, and the
transferring Note Holder shall be released from all of its liabilities and
obligations under this Agreement and any other Operative Agreements to the
extent such liabilities and obligations arise after such Transfer and, in each
case, to the extent such liabilities and obligations are assumed by the
Transferee; provided,
that
such transferring Note Holder (and its respective Affiliates, successors,
assigns, agents, servants, representatives, directors and officers) will
continue to have the benefit of any rights or indemnities under any Operative
Agreement vested or relating to circumstances, conditions, acts or events prior
to such Transfer.
SECTION
10. SECTION
1110
It
is the
intention of each of the Owner, the Note Holders (such intention being evidenced
by each of their acceptance of an Equipment Note), and Mortgagee that Mortgagee
shall be entitled to the benefits of Section 1110 in the event of a case
under Chapter 11 of the Bankruptcy Code in which Owner is a debtor.
SECTION
11. CHANGE
OF CITIZENSHIP
11.1 Generally
Without
prejudice to the representations, warranties or covenants regarding the status
of any party hereto as a Citizen of the United States, each of Owner, WTC and
Mortgagee agrees that it will, immediately upon obtaining knowledge of any
facts
that would cast doubt upon its continuing status as a Citizen of the United
States and promptly upon public disclosure of negotiations in respect of any
transaction which would or might adversely affect such status, notify in writing
all parties hereto of all relevant matters in connection therewith.
11.2 Mortgagee
Upon
WTC
giving any notice in accordance with Section 11.1, Mortgagee shall (if and
so long as such citizenship is necessary under the Act as in effect at such
time
or, if it is not necessary, if and so long as Mortgagee’s citizenship could have
any adverse effect on Owner, or any Note Holder), subject to Section 9.02
of the Trust Indenture, resign as Mortgagee promptly upon its ceasing to be
such
a citizen.
SECTION
12. MISCELLANEOUS
12.1 Amendments
No
provision of this Agreement may be amended, supplemented, waived, modified,
discharged, terminated or otherwise varied orally, but only by an instrument
in
writing that specifically identifies the provision of this Agreement that it
purports to amend, supplement, waive, modify, discharge, terminate or otherwise
vary and is signed by the party against which the enforcement of the amendment,
supplement, waiver, modification, discharge, termination or variance is sought.
Each such amendment, supplement, waiver, modification, discharge, termination
or
variance shall be effective only in the specific instance and for the specific
purpose for which it
is
given.
No provision of this Agreement shall be varied or contradicted by oral
communication, course of dealing or performance or other manner not set forth
in
an agreement, document or instrument in writing and signed by the party against
which enforcement of the same is sought.
12.2 Severability
If
any
provision hereof shall be held invalid, illegal or unenforceable in any respect
in any jurisdiction, then, to the extent permitted by Law, (a) all other
provisions hereof shall remain in full force and effect in such jurisdiction
and
(b) such invalidity, illegality or unenforceability shall not affect the
validity, legality or enforceability of such provision in any other
jurisdiction. If, however, any Law pursuant to which such provisions are held
invalid, illegal or unenforceable may be waived, such Law is hereby waived
by
the parties hereto to the full extent permitted, to the end that this Agreement
shall be deemed to be a valid and binding agreement in all respects, enforceable
in accordance with its terms.
12.3 Survival
The
indemnities set forth herein shall survive the delivery or return of the
Aircraft, the Transfer of any interest by any Note Holder of its Equipment
Note
and the expiration or other termination of this Agreement or any other Operative
Agreement.
12.4 Reproduction
of Documents
This
Agreement, all schedules and exhibits hereto and all agreements, instruments
and
documents relating hereto, including, without limitation, (a) consents, waivers
and modifications that may hereafter be executed and (b) financial
statements, certificates and other information previously or hereafter furnished
to any party hereto, may be reproduced by such party by any photographic,
photostatic, microfilm, micro-card, miniature photographic or other similar
process, and such party may destroy any original documents so reproduced. Any
such reproduction shall be as admissible in evidence as the original itself
in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by such party in the
regular course of business) and any enlargement, facsimile or further
reproduction of such reproduction likewise is admissible in
evidence.
12.5 Counterparts
This
Agreement and any amendments, waivers, consents or supplements hereto may be
executed in any number of counterparts (or upon separate signature pages bound
together into one or more counterparts), each of which when so executed shall
be
deemed to be an original, and all of which counterparts, taken together, shall
constitute one and the same instrument.
12.6 No
Waiver
No
failure on the part of any party hereto to exercise, and no delay by any party
hereto in exercising, any of its respective rights, powers, remedies or
privileges under this Agreement or provided at Law, in equity or otherwise
shall
impair, prejudice or constitute a waiver of any such right, power, remedy or
privilege or be construed as a waiver of any breach hereof or default hereunder
or as an acquiescence therein nor shall any single or partial exercise of any
such right, power, remedy or privilege preclude any other or further exercise
thereof by it or the exercise of any other right, power, remedy or privilege
by
it. No notice to or demand on any party hereto in any case shall, unless
otherwise required under this Agreement, entitle such party to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of any party hereto to any other or further action in
any
circumstances without notice or demand.
12.7 Notices
Unless
otherwise expressly permitted by the terms hereof, all notices, requests,
demands, authorizations, directions, consents, waivers and other communications
required or permitted to be made, given, furnished or filed hereunder shall
be
in writing (it being understood that the specification of a writing in certain
instances and not in others does not imply an intention that a writing is not
required as to the latter), shall refer specifically to this Agreement or other
applicable Operative Agreement, and shall be personally delivered, sent by
facsimile or telecommunication transmission (which in either case provides
written confirmation to the sender of its delivery), sent by registered mail
or
certified mail, return receipt requested, postage prepaid, or sent by overnight
courier service, in each case to the respective address, or facsimile number
set
forth for such party in Schedule 1, or to such other address, facsimile or
other
number as each party hereto may hereafter specify by notice to the other parties
hereto. Each such notice, request, demand, authorization, direction, consent,
waiver
or
other communication shall be effective when received or, if made, given,
furnished or filed (a) by facsimile or telecommunication transmission, when
confirmed, or (b) by registered or certified mail, three Business Days after
being deposited, properly addressed, with the U.S. Postal Service.
12.8 GOVERNING
LAW; SUBMISSION TO JURISDICTION; VENUE
(a) THIS
AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. THIS
AGREEMENT IS BEING DELIVERED IN THE STATE OF NEW YORK.
(b) 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.
(c) EACH
PARTY HERETO HEREBY IRREVOCABLY CONSENTS AND AGREES TO THE SERVICE OF ANY AND
ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE MADE BY MAILING COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, AT THE ADDRESS SET
FORTH PURSUANT TO SECTION 12.7. EACH PARTY HERETO HEREBY AGREES THAT
SERVICE UPON IT, OR ANY OF ITS AGENTS, IN EACH CASE IN ACCORDANCE WITH THIS
SECTION 12.8(c), SHALL CONSTITUTE VALID AND EFFECTIVE PERSONAL SERVICE UPON
SUCH
PARTY, AND EACH PARTY HERETO HEREBY AGREES THAT THE FAILURE OF ANY OF ITS AGENTS
TO GIVE ANY NOTICE OF SUCH SERVICE TO ANY SUCH PARTY SHALL NOT IMPAIR OR AFFECT
IN ANY WAY THE VALIDITY OF SUCH SERVICE ON SUCH PARTY OR ANY JUDGMENT RENDERED
IN ANY ACTION OR PROCEEDING BASED THEREON.
(d) EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, AND AGREES NOT TO ASSERT, BY WAY 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,
THAT
VENUE FOR THE ACTION OR PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT OR ANY
OTHER OPERATIVE AGREEMENT MAY NOT BE ENFORCED IN OR BY SUCH
COURTS.
(e) EACH
PARTY HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR
CAUSE OF ACTION IN ANY COURT IN
ANY
JURISDICTION BASED UPON OR ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
12.9 Third-Party
Beneficiary
This
Agreement is not intended to, and shall not, provide any person not a party
hereto (other than the Indenture Indemnitees (including the Related Note
Holders), each of which is an intended third party beneficiary with respect
to
the provisions of Section 8.1 (and, in the case of the Tax Indemnitees,
Section 8.3) and the persons referred to in Section 6.4.6, which are intended
third party beneficiaries with respect to such Section) with any rights of
any
nature whatsoever against any of the parties hereto and no person not a party
hereto (other than the Indenture Indemnitees (including the Related Note
Holders), with respect to the provisions of Section 8.1 (and, in the case
of the Tax Indemnitees, Section 8.3), and the persons referred to in Section
6.4.6 with respect to the provisions of such Section) shall have any right,
power or privilege in respect of any party hereto, or have any benefit or
interest, arising out of this Agreement.
12.10 Entire
Agreement
This
Agreement, together with the other Operative Agreements, on and as of the date
hereof, constitutes the entire agreement of the parties hereto with respect
to
the subject matter hereof, and all prior or contemporaneous understandings
or
agreements, whether written or oral, among any of the parties hereto with
respect to such subject matter are hereby superseded in their
entireties.
12.11 Further
Assurances
Each
party hereto shall execute, acknowledge and deliver or shall cause to be
executed, acknowledged and delivered, all such further agreements, instruments,
certificates or documents, and shall do and cause to be done such further acts
and things, in any case, as any other party hereto shall reasonably request
in
connection with the administration of, or to carry out more effectually the
purposes of, or to better assure and confirm into such other party the rights
and benefits to be provided under this Agreement and the other Operative
Agreements.
[This
space intentionally left blank]
IN
WITNESS WHEREOF, each of the parties has caused this Participation Agreement
to
be duly executed and delivered as of the day and year first above
written.
| CONTINENTAL AIRLINES, INC., | |||
|
Owner
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
| WILMINGTON TRUST COMPANY, | |||
|
not
in its individual capacity, except as expressly provided herein,
but
solely as Mortgagee
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
| WILMINGTON TRUST COMPANY, | |||
|
not
in its individual capacity, except as expressly provided herein,
but
solely as Pass Through Trustee under the Pass Through Trust
Agreement for
the Continental Airlines Pass Through Trust,
2007-1A-0
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
| WILMINGTON TRUST COMPANY, | |||
|
not
in its individual capacity, except as expressly provided herein,
but
solely as Pass Through Trustee under the Pass Through Trust
Agreement for
the Continental Airlines Pass Through Trust,
2007-1B-0
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
| WILMINGTON TRUST COMPANY, | |||
|
not
in its individual capacity, except as expressly provided
herein, but
solely as Pass Through Trustee under the Pass Through
Trust Agreement for
the Continental Airlines Pass Through Trust,
2007-1C-0
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
| WILMINGTON TRUST COMPANY, | |||
|
not
in its individual capacity, except as expressly provided
herein, but
solely as Subordination Agent
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
ACCOUNTS;
ADDRESSES
|
Account
for Payments
|
Address
for Notices
|
|
|
Continental
Airlines, Inc.
|
JPMorgan
Chase Bank
New
York, New York 10081
Account
No.: 910-2-499291
ABA#:
021-000021
Attention: Alice
Free
Voice: 318-362-8612
Facsimile:
318-362-8613
Reference:
Continental [___]
|
Continental
Airlines, Inc.
1600
Smith Street
Dept.
HQS-FN
Houston,
Texas 77002
Attention:
Treasurer
Facsimile:
(713) 324-2447
|
|
Wilmington
Trust Company, Mortgagee
|
JPMorgan
Chase Bank
New
York, New York 10081
Account
No.: [___]
ABA#:
021-000021
Attention:
Corporate Trust
Administration
Reference:
Continental [___]
|
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890
Attention:
Corporate Trust
Administration
Facsimile:
(302) 636-4140
|
|
Wilmington
Trust Company, as Subordination Agent
|
JPMorgan
Chase Bank
New
York, New York 10081
Account
No.: [___]
ABA#:
021-000021
Attention:
Corporate Trust
Administration
Reference:
Continental [__]
|
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890
Attention:
Corporate Trust
Administration
Facsimile:
(302) 636-4140
|
|
Wilmington
Trust Company, as Pass Through Trustee for the 2007-1A Pass Through
Trust
|
JPMorgan
Chase Bank
New
York, New York 10081
Account
No.: [___]
ABA#:
021-000021
Attention:
Corporate Trust
Administration
Reference:
Continental [__]
|
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890
Attention:
Corporate Trust
Administration
Facsimile:
(302) 636-4140
|
|
Wilmington
Trust Company, as Pass Through Trustee for the 2007-1B Pass Through
Trust
|
JPMorgan
Chase Bank
New
York, New York 10081
Account
No.: [___]
ABA#:
021-000021
Attention:
Corporate Trust
Administration
Reference: Continental
[__]
|
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890
Attention:
Corporate Trust
Administration
Facsimile:
(302) 636-4140
|
|
Account
for Payments
|
Address
for Notices
|
|
|
Wilmington
Trust Company, as Pass Through Trustee for the 2007-1C Pass Through
Trust
|
JPMorgan
Chase Bank
New
York, New York 10081
Account
No.: [___]
ABA#:
021-000021
Attention:
Corporate Trust
Administration
Reference: Continental
[__]
|
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890
Attention:
Corporate Trust
Administration
Facsimile:
(302) 636-4140
|
COMMITMENTS
|
Pass
Through
Trustee
|
Series
of
Equipment
Notes
|
Dollar
Amount
of
Loan
|
||
|
SCHEDULE
3 - CERTAIN TERMS
PARTICIPATION
AGREEMENT [___]
|
CERTAIN
TERMS
[OMITTED
AS CONTAINING CONFIDENTIAL FINANCIAL INFORMATION]
PERMITTED
COUNTRIES
|
Argentina
|
Luxembourg
|
|
Australia
|
Malaysia
|
|
Austria
|
Malta
|
|
Bahamas
|
Mexico
|
|
Belgium
|
Morocco
|
|
Bolivia
|
Netherlands
|
|
Brazil
|
Netherlands
Antilles
|
|
Canada
|
New
Zealand
|
|
Chile
|
Norway
|
|
Colombia
|
Panama
|
|
Czech
Republic
|
People’s
Republic of China
|
|
Denmark
|
Peru
|
|
Egypt
|
Philippines
|
|
Ecuador
|
Poland
|
|
Finland
|
Portugal
|
|
France
|
Republic
of China (Taiwan)
|
|
Germany
|
Russia
|
|
Greece
|
Singapore
|
|
Guatemala
|
South
Africa
|
|
Hungary
|
South
Korea
|
|
Iceland
|
Spain
|
|
India
|
Sweden
|
|
Indonesia
|
Switzerland
|
|
Ireland
|
Thailand
|
|
Italy
|
Trinidad
and Tobago
|
|
Jamaica
|
Turkey
|
|
Japan
|
United
Kingdom
|
|
Jordan
|
Uruguay
|
|
Kuwait
|
Venezuela
|
|
EXHIBIT
C
|
|
TO
|
|
NOTE
PURCHASE AGREEMENT
|
TRUST
INDENTURE AND MORTGAGE [____]
Dated
as
of [________ __, 20__]
Between
CONTINENTAL
AIRLINES, INC.,
Owner
and
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity,
except
as
expressly stated herein,
but
solely as Mortgagee,
Mortgagee
EQUIPMENT
NOTES COVERING
ONE
BOEING [______] AIRCRAFT
BEARING
U.S. REGISTRATION MARK N[______]
AND
MANUFACTURER’S SERIAL NO. [______]
|
Page
|
||
|
1
|
||
|
ARTICLE
I DEFINITIONS
|
4
|
|
|
ARTICLE
II THE
EQUIPMENT NOTES
|
4
|
|
|
SECTION
2.01.
|
|
4
|
|
SECTION
2.02.
|
10
|
|
|
SECTION
2.03.
|
12
|
|
|
SECTION
2.04.
|
12
|
|
|
SECTION
2.05.
|
14
|
|
|
SECTION
2.06.
|
15
|
|
|
SECTION
2.07.
|
15
|
|
|
SECTION
2.08.
|
16
|
|
|
SECTION
2.09.
|
17
|
|
|
SECTION
2.10.
|
17
|
|
|
SECTION
2.11.
|
17
|
|
|
SECTION
2.12.
|
18
|
|
|
SECTION
2.13.
|
19
|
|
|
|
20
|
|
|
SECTION
3.01.
|
|
20
|
|
SECTION
3.02.
|
21
|
|
|
SECTION
3.03.
|
22
|
|
|
SECTION
3.04.
|
25
|
|
|
SECTION
3.05.
|
26
|
|
|
SECTION
3.06.
|
26
|
|
|
SECTION
3.07.
|
26
|
|
|
ARTICLE
IV COVENANTS
OF THE OWNER
|
27
|
|
|
SECTION
4.01.
|
|
27
|
|
SECTION
4.02.
|
27
|
|
|
SECTION
4.03.
|
32
|
|
|
SECTION
4.04.
|
33
|
|
|
SECTION
4.05.
|
36
|
|
|
SECTION
4.06.
|
41
|
|
|
SECTION
4.07.
|
41
|
|
|
SECTION
4.08
|
42
|
|
|
ARTICLE
V EVENTS
OF DEFAULT; REMEDIES OF
MORTGAGEE
|
43
|
|
|
SECTION
5.01.
|
|
43
|
TABLE
OF
CONTENTS
(continued)
|
Page
|
||
|
SECTION
5.02.
|
44
|
|
|
SECTION
5.03.
|
46
|
|
|
SECTION
5.04.
|
47
|
|
|
SECTION
5.05.
|
47
|
|
|
SECTION
5.06.
|
47
|
|
|
SECTION
5.07.
|
47
|
|
|
SECTION
5.08.
|
48
|
|
|
SECTION
5.09.
|
48
|
|
|
ARTICLE
VI DUTIES
OF THE MORTGAGEE
|
48
|
|
|
SECTION
6.01.
|
|
48
|
|
SECTION
6.02.
|
49
|
|
|
SECTION
6.03.
|
49
|
|
|
SECTION
6.04.
|
50
|
|
|
SECTION
6.05.
|
50
|
|
|
SECTION
6.06.
|
50
|
|
|
ARTICLE
VII THE
MORTGAGEE
|
51
|
|
|
SECTION
7.01.
|
|
51
|
|
SECTION
7.02.
|
51
|
|
|
SECTION
7.03.
|
51
|
|
|
SECTION
7.04.
|
52
|
|
|
SECTION
7.05.
|
52
|
|
|
SECTION
7.06.
|
53
|
|
|
SECTION
7.07.
|
53
|
|
|
ARTICLE
VIII INDEMNIFICATION
|
53
|
|
|
SECTION
8.01.
|
|
53
|
|
ARTICLE
IX SUCCESSOR
AND SEPARATE TRUSTEES
|
53
|
|
|
SECTION
9.01.
|
|
53
|
|
SECTION
9.02.
|
54
|
|
|
|
56
|
|
|
SECTION
10.01.
|
|
56
|
|
SECTION
10.02.
|
58
|
|
|
SECTION
10.03.
|
58
|
|
ii
TABLE
OF
CONTENTS
(continued)
|
Page
|
||
|
SECTION
10.04.
|
58
|
|
ARTICLE
XI MISCELLANEOUS
|
58
|
|
|
SECTION
11.01.
|
|
58
|
|
SECTION
11.02.
|
59
|
|
|
SECTION
11.03.
|
59
|
|
|
SECTION
11.04.
|
59
|
|
|
SECTION
11.05.
|
59
|
|
|
SECTION
11.06.
|
60
|
|
|
SECTION
11.07.
|
60
|
|
|
SECTION
11.08.
|
60
|
|
|
SECTION
11.09.
|
60
|
|
|
SECTION
11.10.
|
60
|
|
|
SECTION
11.11.
|
60
|
|
|
SECTION
11.12.
|
61
|
|
|
SECTION
11.13.
|
61
|
|
ANNEX
A Definitions
ANNEX
B Insurance
TRUST
INDENTURE AND MORTGAGE [____]
TRUST
INDENTURE AND MORTGAGE [____], dated as of [________ __, 20__], (“Trust
Indenture”), between CONTINENTAL AIRLINES, INC., a Delaware corporation
(“Owner”), and WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in
its individual capacity, except as expressly stated herein, but solely as
Mortgagee hereunder (together with its successors hereunder, the
“Mortgagee”).
WITNESSETH
WHEREAS,
all capitalized terms used herein shall have the respective meanings set forth
or referred to in Article I hereof;
WHEREAS,
the parties hereto desire by this Trust Indenture, among other things, (i)
to
provide for the issuance by the Owner of the Series of Equipment Notes specified
on Schedule I hereto, and Additional Series, and (ii) to provide for the
assignment, mortgage and pledge by the Owner to the Mortgagee, as part of the
Collateral hereunder, among other things, of all of the Owner’s right, title and
interest in and to the Aircraft and, except as hereinafter expressly provided,
all payments and other amounts received hereunder in accordance with the terms
hereof, as security for, among other things, the Owner’s obligations to the Note
Holders and the Indenture Indemnitees;
WHEREAS,
all things have been done to make the Equipment Notes of the Series listed
on
Schedule I hereto, when executed by the Owner and authenticated and delivered
by
the Mortgagee hereunder, the valid, binding and enforceable obligations of
the
Owner; and
WHEREAS,
all things necessary to make this Trust Indenture the valid, binding and legal
obligation of the Owner for the uses and purposes herein set forth, in
accordance with its terms, have been done and performed and have
happened;
NOW,
THEREFORE, THIS TRUST INDENTURE AND MORTGAGE WITNESSETH, that, to secure the
prompt payment of the Original Amount of, interest on, Make-Whole Amount, if
any, and all other amounts due with respect to, all Equipment Notes from time
to
time outstanding hereunder according to their tenor and effect and to secure
the
performance and observance by the Owner of all the agreements, covenants and
provisions contained herein and in the Participation Agreement and in the
Equipment Notes and to secure the Related Secured Obligations and the
performance and observance by the Owner of all agreements, covenants and
provisions contained in the Related Equipment Notes, for the benefit of the
Note
Holders and each of the Indenture Indemnitees, and in consideration of the
premises and of the covenants herein contained, and of the acceptance of the
Equipment Notes and the Related Equipment Notes by the holders thereof, and
for
other good and valuable consideration the receipt and adequacy whereof are
hereby acknowledged, the Owner has granted, bargained, sold, assigned,
transferred, conveyed, mortgaged, pledged and confirmed, and does hereby grant,
bargain, sell, assign, transfer, convey, mortgage, pledge and confirm, unto
the
Mortgagee, its successors in trust and assigns, for the security and benefit
of,
the Note Holders and each of the
Indenture
Indemnitees, a first priority security interest and, in the case of the Airframe
and Engines, an International Interest in and mortgage lien on all right, title
and interest of the Owner in, to and under the following described property,
rights and privileges, whether now or hereafter acquired (which, collectively,
together with all property hereafter specifically subject to the Lien of this
Trust Indenture by the terms hereof or any supplement hereto, are included
within, and are referred to as, the “Collateral”), to wit:
(1) The
Airframe which is one Boeing [______] aircraft with the FAA Registration number
of N[______] and the manufacturer’s serial number of [______] and two Engines,
each of which Engines is a [________________________] jet propulsion aircraft
engine with at least 1750 lb. of thrust, with the manufacturer’s serial numbers
of [______] and [______] (such Airframe and Engines more particularly described
in the Trust Indenture Supplement executed and delivered as provided herein)
as
the same is now and will hereafter be constituted, whether now owned by the
Owner or hereafter acquired, and in the case of such Engines, whether or not
any
such Engine shall be installed in or attached to the Airframe or any other
airframe, together with (a) all Parts of whatever nature, which are from time
to
time included within the definitions of “Airframe” or “Engines”, whether now
owned or hereafter acquired, including all substitutions, renewals and
replacements of and additions, improvements, accessions and accumulations to
the
Airframe and Engines (other than additions, improvements, accessions and
accumulations which constitute appliances, parts, instruments, appurtenances,
accessories, furnishings or other equipment excluded from the definition of
Parts) and (b) all Aircraft Documents;
(2) The
Purchase Agreement and the Bills of Sale to the extent the same relate to
continuing rights of the Owner in respect of any warranty, indemnity or
agreement, express or implied, as to title, materials, workmanship, design
or
patent infringement or related matters with respect to the Airframe or the
Engines (reserving to the Owner, however, all of the Owner’s other rights and
interest in and to the Purchase Agreement) together with all rights, powers,
privileges, options and other benefits of the Owner thereunder (subject to
such
reservation) with respect to the Airframe or the Engines, including, without
limitation, the right to make all waivers and agreements, to give and receive
all notices and other instruments or communications, to take such action upon
the occurrence of a default thereunder, including the commencement, conduct
and
consummation of legal, administrative or other proceedings, as shall be
permitted thereby or by law, and to do any and all other things which the Owner
is or may be entitled to do thereunder (subject to such reservation), subject,
with respect to the Purchase Agreement, to the terms and conditions of the
Consent and Agreement and the Engine Consent and Agreement;
(3) All
proceeds with respect to the requisition of title to or use of the Aircraft
or
any Engine by any Government Entity or from the sale or other disposition of
the
Aircraft, the Airframe, any Engine or other property described in any of these
Granting Clauses by the Mortgagee pursuant to the terms of this Trust Indenture,
and all insurance proceeds with respect to the Aircraft, the Airframe, any
Engine or any part thereof, but excluding any insurance maintained by the Owner
and not required under Section 4.06;
(4) All
rents, revenues and other proceeds collected by the Mortgagee pursuant to
paragraph (v) of clause “Third” of Section 3.03 and Section 5.03(b) and all
monies and securities from time to time deposited or required to be deposited
with the Mortgagee by or for the account of the Owner pursuant to any terms
of
this Trust Indenture held or required to be held by the Mortgagee hereunder,
including the Securities Account and all monies and securities deposited into
the Securities Account; and
(5) All
proceeds of the foregoing.
PROVIDED,
HOWEVER, that notwithstanding any of the foregoing provisions, so long as no
Event of Default shall have occurred and be continuing, (a) the Mortgagee shall
not take or cause to be taken any action contrary to the Owner’s right hereunder
to quiet enjoyment of the Airframe and Engines, and to possess, use, retain
and
control the Airframe and Engines and all revenues, income and profits derived
therefrom, and (b) the Owner shall have the right, to the exclusion of the
Mortgagee, with respect to the Purchase Agreement, to exercise in the Owner’s
name all rights and powers of the buyer under the Purchase Agreement (other
than
to amend, modify or waive any of the warranties or indemnities contained
therein, except in the exercise of the Owner’s reasonable business judgment) and
to retain any recovery or benefit resulting from the enforcement of any warranty
or indemnity under the Purchase Agreement; and provided
further that,
notwithstanding the occurrence or continuation of an Event of Default, the
Mortgagee shall not enter into any amendment of the Purchase Agreement which
would increase the obligations of the Owner thereunder.
TO
HAVE
AND TO HOLD all and singular the aforesaid property unto the Mortgagee, and
its
successors and assigns, in trust for the equal and proportionate benefit and
security of the Note Holders and the Indenture Indemnitees, except as provided
in Section 2.13 and Article III hereof, without any preference, distinction
or
priority of any one Equipment Note over any other, or any Related Equipment
Note
over any other, by reason of priority of time of issue, sale, negotiation,
date
of maturity thereof or otherwise for any reason whatsoever, and for the uses
and
purposes and in all cases and as to all property specified in clauses (1)
through (5) inclusive above, subject to the terms and provisions set forth
in
this Trust Indenture.
It
is
expressly agreed that anything herein contained to the contrary notwithstanding,
the Owner shall remain liable under the Indenture Agreements to perform all
of
the obligations assumed by it thereunder, except to the extent prohibited or
excluded from doing so pursuant to the terms and provisions thereof, and the
Mortgagee, the Note Holders and the Indenture Indemnitees shall have no
obligation or liability under the Indenture Agreements by reason of or arising
out of the assignment hereunder, nor shall the Mortgagee, the Note Holders
or
the Indenture Indemnitees be required or obligated in any manner to perform
or
fulfill any obligations of the Owner under or pursuant to the Indenture
Agreements, or, except as herein expressly provided, to make any payment, or
to
make any inquiry as to the nature or sufficiency of any payment received by
it,
or present or file any claim, or take any action to collect or enforce the
payment of any amounts which may have been assigned to it or to which it may
be
entitled at any time or times.
The
Owner
does hereby constitute the Mortgagee the true and lawful attorney of the Owner,
irrevocably, granted for good and valuable consideration and coupled with an
interest and with full power of substitution, and with full power (in the name
of the Owner or otherwise) to ask for, require, demand, receive, compound and
give acquittance for any and all monies and claims for monies (in each case
including insurance and requisition proceeds) due and to become due under or
arising out of the Indenture Agreements, and all other property which now or
hereafter constitutes part of the Collateral, to endorse any checks or other
instruments or orders in connection therewith and to file any claims or to
take
any action or to institute any proceedings which the Mortgagee may deem to
be
necessary or advisable in the premises; provided
that the
Mortgagee shall not exercise any such rights except upon the occurrence and
during the continuance of an Event of Default hereunder.
The
Owner
agrees that at any time and from time to time, upon the written request of
the
Mortgagee, the Owner will promptly and duly execute and deliver or cause to
be
duly executed and delivered any and all such further instruments and documents
(including without limitation UCC continuation statements) as the Mortgagee
may
reasonably deem necessary to perfect, preserve or protect the mortgage, security
interests and assignments created or intended to be created hereby or to obtain
for the Mortgagee the full benefits of the assignment hereunder and of the
rights and powers herein granted.
IT
IS
HEREBY COVENANTED AND AGREED by and between the parties hereto as
follows:
Capitalized
terms used but not defined herein shall have the respective meanings set forth
or incorporated by reference, and shall be construed in the manner described,
in
Annex A hereto.
THE
EQUIPMENT NOTES
SECTION
2.01. Form of Equipment
Notes
The
Equipment Notes shall be substantially in the form set forth below:
THIS
EQUIPMENT NOTE HAS NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933,
AS AMENDED (THE “ACT”), OR PURSUANT TO THE SECURITIES LAWS OF ANY STATE.
ACCORDINGLY, THIS EQUIPMENT NOTE MAY NOT BE SOLD UNLESS EITHER REGISTERED UNDER
THE ACT AND SUCH APPLICABLE STATE LAWS OR AN EXEMPTION FROM SUCH REGISTRATIONS
IS AVAILABLE.
CONTINENTAL
AIRLINES, INC.
SERIES
[_____]
EQUIPMENT NOTE DUE [____]
ISSUED
IN CONNECTION WITH THE
BOEING
MODEL [_____] AIRCRAFT BEARING UNITED STATES REGISTRATION
NUMBER
N[_____]
|
No.
____
|
Date:
[__________,
____]
|
|
INTEREST
RATE
|
MATURITY
DATE
|
|
[___________]
|
[____________]
|
CONTINENTAL
AIRLINES, INC., a Delaware corporation (“Owner”), hereby promises to pay to
__________________, or the registered assignee thereof, the principal sum of
$____________ (the “Original Amount”), together with interest on the amount of
the Original Amount remaining unpaid from time to time (calculated on the basis
of a year of 360 days comprised of twelve 30-day months) from the date hereof
until paid in full at a rate per annum equal to the Debt Rate. The Original
Amount of this Equipment Note shall be due and payable in installments on the
dates set forth in Schedule I hereto equal to the corresponding percentage
of
the Original Amount of this Equipment Note set forth in Schedule I hereto.
Accrued but unpaid interest shall be due and payable in semi-annual installments
commencing on [______ __, 20__,]1
and
thereafter on April 19 and October 19 of each year, to and including
[_______________]. Notwithstanding the foregoing, the final payment made on
this
Equipment Note shall be in an amount sufficient to discharge in full the unpaid
Original Amount and all accrued and unpaid interest on, and any other amounts
due under, this Equipment Note. Notwithstanding anything to the contrary
contained herein, if any date on which a payment under this Equipment Note
becomes due and payable is not a Business Day, then such payment shall not
be
made on such scheduled date but shall be made on the next succeeding Business
Day and if such payment is made on such next succeeding Business Day, no
interest shall accrue on the amount of such payment during such
extension.
For
purposes hereof, the term “Trust Indenture” means the Trust Indenture and
Mortgage [____] dated as of [______ __, 20__,] between the Owner and Wilmington
Trust Company (the “Mortgagee”), as the same may be amended or supplemented from
time to time. All other capitalized terms used in this Equipment Note and not
defined herein shall have the respective meanings assigned in the Trust
Indenture.
This
Equipment Note shall bear interest, payable on demand, at the Payment Due Rate
(calculated on the basis of a year of 360 days comprised of twelve 30-day
months) on any overdue Original Amount, any overdue Make-Whole Amount, if any,
and (to the extent permitted by applicable Law) any overdue interest and any
other amounts payable hereunder which are overdue, in each case for the period
the same is overdue. Amounts shall be overdue if not paid when due (whether
at
stated maturity, by acceleration or otherwise).
1. Insert first April 19 or October 19 after the Closing Date.
There
shall be maintained an Equipment Note Register for the purpose of registering
transfers and exchanges of Equipment Notes at the Corporate Trust Office of
the
Mortgagee or at the office of any successor in the manner provided in Section
2.07 of the Trust Indenture.
The
Original Amount and interest and other amounts due hereunder shall be payable
in
Dollars in immediately available funds at the Corporate Trust Office of the
Mortgagee, or as otherwise provided in the Trust Indenture. Each such payment
shall be made on the date such payment is due and without any presentment or
surrender of this Equipment Note, except that in the case of any final payment
with respect to this Equipment Note, the Equipment Note shall be surrendered
promptly thereafter to the Mortgagee for cancellation.
The
holder hereof, by its acceptance of this Equipment Note, agrees that, except
as
provided in the Trust Indenture, each payment of the Original Amount, Make-Whole
Amount, if any, and interest received by it hereunder shall be applied,
first,
to the
payment of accrued interest on this Equipment Note (as well as any interest
on
any overdue Original Amount, any overdue Make-Whole Amount, if any, or, to
the
extent permitted by Law, any overdue interest and other amounts hereunder)
to
the date of such payment, second,
to the
payment of the Original Amount of this Equipment Note then due, third,
to the
payment of Make-Whole Amount, if any, and any other amount due hereunder or
under the Trust Indenture, and fourth,
the
balance, if any, remaining thereafter, to the payment of installments of the
Original Amount of this Equipment Note remaining unpaid in the inverse order
of
their maturity.
This
Equipment Note is one of the Equipment Notes referred to in the Trust Indenture
which have been or are to be issued by the Owner pursuant to the terms of the
Trust Indenture. The Collateral is held by the Mortgagee as security, in part,
for the Equipment Notes. The provisions of this Equipment Note are subject
to
the Trust Indenture and the Related Indentures. Reference is hereby made to
the
Trust Indenture and the Related Indentures for a complete statement of the
rights and obligations of the holder of, and the nature and extent of the
security for, this Equipment Note (including as a “Related Equipment Note” under
each of the Related Indentures) and the rights and obligations of the holders
of, and the nature and extent of the security for, any other Equipment Notes
executed and delivered under the Trust Indenture, as well as for a statement
of
the terms and conditions of the Trust created by the Trust Indenture, to all
of
which terms and conditions in the Trust Indenture each holder hereof agrees
by
its acceptance of this Equipment Note.
As
provided in the Trust Indenture and subject to certain limitations therein
set
forth, this Equipment Note is exchangeable for a like aggregate Original Amount
of Equipment Notes of different authorized denominations, as requested by the
holder surrendering the same.
Prior
to
due presentment for registration of transfer of this Equipment Note, the Owner
and the Mortgagee shall treat the person in whose name this Equipment Note
is
registered as the owner hereof for all purposes, whether or not this Equipment
Note be overdue, and neither the Owner nor the Mortgagee shall be affected
by
notice to the contrary.
This
Equipment Note is subject to redemption as provided in Sections 2.10, 2.11
and
2.12 of the Trust Indenture but not otherwise. In addition, this Equipment
Note
may be accelerated as provided in Section 5.02 of the Trust
Indenture.
This
Equipment Note is subject to purchase as set forth in Section 2.7 of the
Intercreditor Agreement, and to certain restrictions set forth in Sections
4.1(a)(ii) and 4.1(a)(iii) of the Intercreditor Agreement, as further specified
in Section 2.07 of the Trust Indenture, to all of which terms and conditions
in
the Intercreditor Agreement each holder hereof agrees by its acceptance of
this
Equipment Note.
[The
indebtedness evidenced by this Equipment Note is, to the extent and in the
manner provided in the Trust Indenture, subordinate and subject in right of
payment to the prior payment in full of the Secured Obligations (as defined
in
the Trust Indenture) in respect of [Series A Equipment Notes and Related Series
A Equipment Notes]2
[Series
A Equipment Notes, Series B Equipment Notes, Related Series A Equipment Notes
and Related Series B Equipment Notes]3
[Series
A Equipment Notes, Series B Equipment Notes, Series C Equipment Notes, Related
Series A Equipment Notes, Related Series B Equipment Notes and Related Series
C
Equipment Notes]4 ,
and
certain other Secured Obligations, and this Equipment Note is issued subject
to
such provisions. The Note Holder of this Equipment Note, by accepting the same,
(a) agrees to and shall be bound by such provisions, (b) authorizes and directs
the Mortgagee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in the Trust Indenture
and (c) appoints the Mortgagee his attorney-in-fact for such
purpose.]5
Unless
the certificate of authentication hereon has been executed by or on behalf
of
the Mortgagee by manual signature, this Equipment Note shall not be entitled
to
any benefit under the Trust Indenture or be valid or obligatory for any
purpose.
THIS
EQUIPMENT NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK.
* * *
2. To
be
inserted in the case of a Series B Equipment Note.
3. To
be
inserted in the case of a Series C Equipment Note.
4. To
be
inserted in the case of an Additional Series Equipment Note.
5. To
be
inserted for each Equipment Note other than any Series A Equipment
Note.
IN
WITNESS WHEREOF, the Owner has caused this Equipment Note to be executed in
its
corporate name by its officer thereunto duly authorized on the date
hereof.
|
CONTINENTAL
AIRLINES, INC.
|
|
|
By:___________________________________
|
|
|
Name:
|
|
|
Title:
|
MORTGAGEE’S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Equipment Notes referred to in the within-mentioned Trust
Indenture.
|
WILMINGTON
TRUST COMPANY, as Mortgagee
|
|
|
By:___________________________________
|
|
|
Name:
|
|
|
Title:
|
SCHEDULE
I
EQUIPMENT
NOTE AMORTIZATION
|
Payment
Date
|
Percentage
of Original Amount to Be Paid
|
[SEE
SCHEDULE I TO TRUST INDENTURE
WHICH
IS INSERTED UPON ISSUANCE]
* * *
SECTION
2.02. Issuance and Terms of Equipment
Notes
The
Equipment Notes (other than the Additional Series Equipment Notes) shall be
dated the Closing Date, shall be issued in three separate series consisting
of
Series A, Series B, Series C and in the maturities and principal amounts and
shall bear interest as specified in Schedule I hereto. On the Closing Date,
each
Series specified in Schedule I shall be issued to the Subordination Agent on
behalf of the Applicable Pass Through Trustee under the Applicable Pass Through
Trust Agreement. In addition to the foregoing, Owner shall have the option
to
issue Additional Series Equipment Notes at any time and from time to time
at or after the “Delivery Period Termination Date” (as defined in the Note
Purchase Agreement), subject to the terms of Section 4(a)(vi) of the Note
Purchase Agreement and Section 9.1(d) of the Intercreditor Agreement. The
Additional Series Equipment Notes may be issued in an unlimited number of
separate series (if more than one series of Additional Series Equipment Notes
are so issued, each such series shall have a different designation such as,
for
example, “Series D” and “Series E”), shall be dated the date of original
issuance thereof and shall have such maturities, principal amounts and interest
rates as specified in an amendment to this Trust Indenture. The Equipment Notes
shall be issued in registered form only. The Equipment Notes shall be issued
in
denominations of $1,000 and integral multiples thereof, except that one
Equipment Note of each Series may be in an amount that is not an integral
multiple of $1,000. Without limitation of the foregoing, new Series B Equipment
Notes, Series C Equipment Notes or Additional Series Equipment Notes may be
issued pursuant to the provisions of Section 2.11(b).
Each
Equipment Note shall bear interest at the Debt Rate (calculated on the basis
of
a year of 360 days comprised of twelve 30-day months) on the unpaid Original
Amount thereof from time to time outstanding. Accrued interest shall be payable
in arrears on [____ __], 20[__], and on each April 19 and October 19 thereafter
until maturity. The Original Amount of each Equipment Note shall be payable
on
the dates and in the installments equal to the corresponding percentage of
the
Original Amount as set forth in Schedule I hereto (as amended, in the case
of
any Additional Series, at the time of original issuance of such Additional
Series) which shall be attached as Schedule I to such Equipment Notes.
Notwithstanding the foregoing, the final payment made under each Equipment
Note
shall be in an amount sufficient to discharge in full the unpaid Original Amount
and all accrued and unpaid interest on, and any other amounts due under, such
Equipment Note. Each Equipment Note shall bear interest, payable on demand,
at
the Payment Due Rate (calculated on the basis of a year of 360 days comprised
of
twelve 30-day months) on any part of the Original Amount, Make-Whole Amount,
if
any, and, to the extent permitted by applicable Law, interest and any other
amounts payable thereunder not paid when due for any period during which the
same shall be overdue, in each case for the period the same is overdue. Amounts
under any Equipment Note shall be overdue if not paid when due (whether at
stated maturity, by acceleration or otherwise). Notwithstanding anything to
the
contrary contained herein, if any date on which a payment under any Equipment
Note becomes due and payable is not a Business Day then such payment shall
not
be made on such scheduled date but shall be made on the next succeeding Business
Day and if such payment is made on such next succeeding Business Day, no
interest shall accrue on the amount of such payment during such extension.
The
Owner
agrees to pay to the Mortgagee for distribution in accordance with Section
3.04
hereof: (a)(i) to the extent not payable (whether or not in fact paid) under
Section 6(a) of the Note Purchase Agreement, an amount equal to the fees payable
to the Liquidity Provider under Section 2.03 of each Liquidity Facility and
the
related Fee Letter (as defined in the Intercreditor Agreement) multiplied by
a
fraction the numerator of which shall be the then outstanding aggregate
principal amount of the Series A Equipment Notes and Series B Equipment Notes
and the denominator of which shall be the then outstanding aggregate principal
amount of all “Series A Equipment Notes” and “Series B Equipment Notes” (each as
defined in the Note Purchase Agreement); (ii) (x) the amount equal to interest
on any Downgrade Advance (other than any Applied Downgrade Advance) payable
under Section 3.07 of each Liquidity Facility minus Investment Earnings from
such Downgrade Advance multiplied by (y) the fraction specified in the foregoing
clause (i); (iii) (x) the amount equal to interest on any Non-Extension Advance
(other than any Applied Non-Extension Advance) payable under Section 3.07 of
each Liquidity Facility minus Investment Earnings from such Non-Extension
Advance multiplied by (y) the fraction specified in the foregoing clause (i);
(iv) if any payment default shall have occurred and be continuing with respect
to interest on any “Series A Equipment Notes” or “Series B Equipment Notes”
(each as defined in the Note Purchase Agreement), (x) the excess, if any, of
(1)
an amount equal to interest on any Unpaid Advance, Applied Downgrade Advance
or
Applied Non-Extension Advance payable under Section 3.07 of each Liquidity
Facility over (2) the sum of Investment Earnings from any Final Advance plus
any
amount of interest at the Payment Due Rate actually payable (whether or not
in
fact paid) by Owner on the overdue scheduled interest on the “Equipment Notes”
(as defined in the Note Purchase Agreement) in respect of which such Unpaid
Advance, Applied Downgrade Advance or Applied Non-Extension Advance was made
by
the Liquidity Provider multiplied by (y) a fraction the numerator of which
shall
be the then aggregate overdue amounts of interest on the Series A Equipment
Notes and Series B Equipment Notes (other than interest becoming due and payable
solely as a result of acceleration of any such Equipment Notes) and the
denominator of which shall be the then aggregate overdue amounts of interest
on
all “Series A Equipment Notes” and “Series B Equipment Notes” (each as defined
in the Note Purchase Agreement) (other than interest becoming due and payable
solely as a result of acceleration of any such “Equipment Notes”); and
(v) any other amounts owed to the Liquidity Provider by the Subordination
Agent as borrower under each Liquidity Facility other than amounts due as
repayment of advances thereunder or as interest on such advances, except to
the
extent payable pursuant to clause (ii), (iii) or (iv) above, multiplied by
the
fraction specified in the foregoing clause (i), (b) Owner’s pro rata share of
all compensation and reimbursement of expenses, disbursements and advances
payable by Owner under the Pass Through Trust Agreements, (c) Owner’s pro rata
share of all compensation and reimbursement of expenses and disbursements
payable to the Subordination Agent under the Intercreditor Agreement except
with
respect to any income or franchise taxes incurred by the Subordination Agent
in
connection with the transactions contemplated by the Intercreditor Agreement
and
(d) in the event Owner requests any amendment to any Operative Agreement or
Pass
Through Agreement, Owner’s pro rata share of all reasonable fees and expenses
(including, without limitation, fees and disbursements of counsel) of the Escrow
Agents and the Paying Agents in connection therewith payable by the Pass Through
Trustees under the Escrow Agreements. As used herein, “Owner’s pro rata share”
means as of any time a fraction, the numerator of which is the principal balance
then outstanding of Equipment Notes and the denominator of which is the
aggregate principal balance then
outstanding
of all “Equipment Notes” (as each such term is defined in each of the Operative
Indentures). For purposes of this paragraph, the terms “Applied Downgrade
Advance”, “Applied Non-Extension Advance”, “Cash Collateral Account”, “Downgrade
Advance”, “Final Advance”, “Investment Earnings”, “Non-Extension Advance” and
“Unpaid Advance” shall have the meanings specified in each Liquidity
Facility.
The
Equipment Notes shall be executed on behalf of the Owner by one of its
authorized officers. Equipment Notes bearing the signatures of individuals
who
were at any time the proper officers of the Owner shall bind the Owner,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Equipment Notes or
did
not hold such offices at the respective dates of such Equipment Notes. The
Owner
may from time to time execute and deliver Equipment Notes with respect to the
Aircraft to the Mortgagee for authentication upon original issue and such
Equipment Notes shall thereupon be authenticated and delivered by the Mortgagee
upon the written request of the Owner signed by an authorized officer of the
Owner. No Equipment Note shall be secured by or entitled to any benefit under
this Trust Indenture or be valid or obligatory for any purposes, unless there
appears on such Equipment Note a certificate of authentication in the form
provided for herein executed by the Mortgagee by the manual signature of one
of
its authorized officers and such certificate upon any Equipment Notes be
conclusive evidence, and the only evidence, that such Equipment Note has been
duly authenticated and delivered hereunder.
The
aggregate Original Amount of any Series of Equipment Notes issued hereunder
shall not exceed the amount set forth as the maximum therefor on Schedule I
hereto (as amended, in the case of any Additional Series, at the time of
original issuance of such Additional Series).
SECTION
2.03. [Intentionally
Omitted]
SECTION
2.04. Method of
Payment
(a) The
Original Amount of, interest on, Make-Whole Amount, if any, and other amounts
due under each Equipment Note or hereunder will be payable in Dollars by wire
transfer of immediately available funds not later than 12:30 PM, New York time,
on the due date of payment to the Mortgagee at the Corporate Trust Office for
distribution among the Note Holders in the manner provided herein, and payment
of such amount by the Owner to the Mortgagee shall be deemed to satisfy the
Owner’s obligation to make such payment. The Owner shall not have any
responsibility for the distribution of such payment to any Note Holder.
Notwithstanding the foregoing or any provision in any Equipment Note to the
contrary, the Mortgagee will use reasonable efforts to pay or cause to be paid,
if so directed in writing by any Note Holder (with a copy to the Owner), all
amounts paid by the Owner hereunder and under such holder’s Equipment Note or
Equipment Notes to such holder or a nominee therefor (including all amounts
distributed pursuant to Article III of this Trust Indenture) by transferring,
or
causing to be transferred, by wire transfer of immediately available funds
in
Dollars, prior to 2:00 p.m., New York City time, on the due date of payment,
to
an account maintained by such holder with a bank located in the continental
United States the amount to be distributed to such holder, for credit to the
account of such holder maintained at such bank. If the Mortgagee shall
fail
to
make any such payment as provided in the immediately foregoing sentence after
its receipt of funds at the place and prior to the time specified above, the
Mortgagee, in its individual capacity and not as trustee, agrees to compensate
such holders for loss of use of funds at Debt Rate until such payment is made
and the Mortgagee shall be entitled to any interest earned on such funds until
such payment is made. Any payment made hereunder shall be made without any
presentment or surrender of any Equipment Note, except that, in the case of
the
final payment in respect of any Equipment Note, such Equipment Note shall be
surrendered to the Mortgagee for cancellation promptly after such payment.
Notwithstanding any other provision of this Trust Indenture to the contrary,
the
Mortgagee shall not be required to make, or cause to be made, wire transfers
as
aforesaid prior to the first Business Day on which it is practicable for the
Mortgagee to do so in view of the time of day when the funds to be so
transferred were received by it if such funds were received after 12:30 PM,
New York time, at the place of payment. Prior to the due presentment for
registration of transfer of any Equipment Note, the Owner and the Mortgagee
shall deem and treat the Person in whose name any Equipment Note is registered
on the Equipment Note Register as the absolute owner and holder of such
Equipment Note for the purpose of receiving payment of all amounts payable
with
respect to such Equipment Note and for all other purposes, and none of the
Owner
or the Mortgagee shall be affected by any notice to the contrary. So long as
any
signatory to the Participation Agreement or nominee thereof shall be a
registered Note Holder, all payments to it shall be made to the account of
such
Note Holder specified in Schedule 1 thereto and otherwise in the manner provided
in or pursuant to the Participation Agreement unless it shall have specified
some other account or manner of payment by notice to the Mortgagee consistent
with this Section 2.04.
(b) The
Mortgagee, as agent for the Owner, shall exclude and withhold at the appropriate
rate from each payment of Original Amount of, interest on, Make-Whole Amount,
if
any, and other amounts due hereunder or under each Equipment Note (and such
exclusion and withholding shall constitute payment in respect of such Equipment
Note) any and all United States withholding taxes applicable thereto as required
by Law. The Mortgagee agrees to act as such withholding agent and, in connection
therewith, whenever any present or future United States taxes or similar charges
are required to be withheld with respect to any amounts payable hereunder or
in
respect of the Equipment Notes, to withhold such amounts and timely pay the
same
to the appropriate authority in the name of and on behalf of the Note Holders,
that it will file any necessary United States withholding tax returns or
statements when due, and that as promptly as possible after the payment thereof
it will deliver to each Note Holder (with a copy to the Owner) appropriate
receipts showing the payment thereof, together with such additional documentary
evidence as any such Note Holder may reasonably request from time to
time.
If
a Note
Holder which is a Non-U.S. Person has furnished to the Mortgagee a properly
completed, accurate and currently effective U.S. Internal Revenue Service Form
W-8BEN or W-8ECI (or such successor form or forms as may be required by the
United States Treasury Department) during the calendar year in which the payment
hereunder or under the Equipment Note(s) held by such holder is made (but prior
to the making of such payment), or in either of the two preceding calendar
years, and has not notified the Mortgagee of the withdrawal or inaccuracy of
such form prior to the date of such payment (and the Mortgagee has no reason
to
believe that any information set forth in such form is inaccurate), the
Mortgagee shall
withhold
only the amount, if any, required by Law (after taking into account any
applicable exemptions properly claimed by the Note Holder) to be withheld from
payments hereunder or under the Equipment Notes held by such holder in respect
of United States federal income tax. If a Note Holder (x) which is a Non-U.S.
Person has furnished to the Mortgagee a properly completed, accurate and
currently effective U.S. Internal Revenue Service Form W-8ECI in duplicate
(or
such successor certificate, form or forms as may be required by the United
States Treasury Department as necessary in order to properly avoid withholding
of United States federal income tax), for each calendar year in which a payment
is made (but prior to the making of any payment for such year), and has not
notified the Mortgagee of the withdrawal or inaccuracy of such certificate
or
form prior to the date of such payment (and the Mortgagee has no reason to
believe that any information set forth in such form is inaccurate) or (y) which
is a U.S. Person has furnished to the Mortgagee a properly completed, accurate
and currently effective U.S. Internal Revenue Service Form W-9, if applicable,
prior to a payment hereunder or under the Equipment Notes held by such holder,
no amount shall be withheld from payments in respect of United States federal
income tax. If any Note Holder has notified the Mortgagee that any of the
foregoing forms or certificates is withdrawn or inaccurate, or if such holder
has not filed a form claiming an exemption from United States withholding tax
or
if the Code or the regulations thereunder or the administrative interpretation
thereof is at any time after the date hereof amended to require such withholding
of United States federal income taxes from payments under the Equipment Notes
held by such holder, the Mortgagee agrees to withhold from each payment due
to
the relevant Note Holder withholding taxes at the appropriate rate under Law
and
will, on a timely basis as more fully provided above, deposit such amounts
with
an authorized depository and make such returns, statements, receipts and other
documentary evidence in connection therewith as required by Law.
Owner
shall not have any liability for the failure of the Mortgagee to withhold taxes
in the manner provided for herein or for any false, inaccurate or untrue
evidence provided by any Note Holder hereunder.
SECTION
2.05. Application of
Payments
In
the
case of each Equipment Note, each payment of Original Amount, Make-Whole Amount,
if any, and interest due thereon shall be applied:
First:
to
the payment of Make-Whole Amount, if any, with respect to such Equipment Note
and any other amount (other than as covered by any of the following clauses)
due
hereunder or under such Equipment Note;
Second:
to the payment of accrued interest on such Equipment Note (as well as any
interest on any overdue Original Amount, any overdue Make-Whole Amount, if
any,
and to the extent permitted by Law, any overdue interest and any other overdue
amounts thereunder) to the date of such payment;
Third:
to
the payment of the Original Amount of such Equipment Note (or a portion thereof)
then due thereunder; and
Fourth:
the balance, if any, remaining thereafter, to the payment of the Original Amount
of such Equipment Note remaining unpaid (provided that such Equipment Note
shall
not be subject to redemption except as provided in Sections 2.10, 2.11 and
2.12
hereof).
The
amounts paid pursuant to clause “Fourth” above shall be applied to the
installments of Original Amount of such Equipment Note in the inverse order
of
their maturity.
SECTION
2.06. Termination of Interest in
Collateral
No
Note
Holder nor any other Indenture Indemnitee shall, as such, have any further
interest in, or other right with respect to, the Collateral when and if the
Original Amount of, Make-Whole Amount, if any, and interest on and other amounts
due under all Equipment Notes held by such Note Holder and all other sums then
due and payable to such Note Holder, such Indenture Indemnitee or the Mortgagee
hereunder (including, without limitation, under the third paragraph of Section
2.02 hereof) and under the other Operative Agreements by the Owner and all
Related Secured Obligations (collectively, the “Secured Obligations”) shall have
been paid in full.
SECTION
2.07. Registration Transfer and
Exchange of Equipment Notes
The
Mortgagee shall keep a register (the “Equipment Note Register”) in which the
Mortgagee shall provide for the registration of Equipment Notes and the
registration of transfers of Equipment Notes. No such transfer shall be given
effect unless and until registration hereunder shall have occurred. The
Equipment Note Register shall be kept at the Corporate Trust Office of the
Mortgagee. The Mortgagee is hereby appointed “Equipment Note Registrar” for the
purpose of registering Equipment Notes and transfers of Equipment Notes as
herein provided. A holder of any Equipment Note intending to exchange such
Equipment Note shall surrender such Equipment Note to the Mortgagee at the
Corporate Trust Office, together with a written request from the registered
holder thereof for the issuance of a new Equipment Note, specifying, in the
case
of a surrender for transfer, the name and address of the new holder or holders.
Upon surrender for registration of transfer of any Equipment Note, the Owner
shall execute, and the Mortgagee shall authenticate and deliver, in the name
of
the designated transferee or transferees, one or more new Equipment Notes of
a
like aggregate Original Amount and of the same series. At the option of the
Note
Holder, Equipment Notes may be exchanged for other Equipment Notes of any
authorized denominations of a like aggregate Original Amount, upon surrender
of
the Equipment Notes to be exchanged to the Mortgagee at the Corporate Trust
Office. Whenever any Equipment Notes are so surrendered for exchange, the Owner
shall execute, and the Mortgagee shall authenticate and deliver, the Equipment
Notes which the Note Holder making the exchange is entitled to receive. All
Equipment Notes issued upon any registration of transfer or exchange of
Equipment Notes (whether under this Section 2.07 or under Section 2.08 hereof
or
otherwise under this Trust Indenture) shall be the valid obligations of the
Owner evidencing the same respective obligations, and entitled to the same
security and benefits under this Trust Indenture, as the Equipment Notes
surrendered upon such registration of transfer or exchange. Every Equipment
Note
presented or surrendered for registration of transfer, shall (if so required
by
the Mortgagee) be duly endorsed, or be
accompanied
by a written instrument of transfer in form satisfactory to the Mortgagee duly
executed by the Note Holder or such holder’s attorney duly authorized in
writing, and the Mortgagee shall require evidence satisfactory to it as to
the
compliance of any such transfer with the Securities Act, and the securities
Laws
of any applicable state. The Mortgagee shall make a notation on each new
Equipment Note of the amount of all payments of Original Amount previously
made
on the old Equipment Note or Equipment Notes with respect to which such new
Equipment Note is issued and the date to which interest on such old Equipment
Note or Equipment Notes has been paid. Interest shall be deemed to have been
paid on such new Equipment Note to the date on which interest shall have been
paid on such old Equipment Note, and all payments of the Original Amount marked
on such new Equipment Note, as provided above, shall be deemed to have been
made
thereon. The Owner shall not be required to exchange any surrendered Equipment
Notes as provided above during the ten-day period preceding the due date of
any
payment on such Equipment Note. The Owner shall in all cases deem the Person
in
whose name any Equipment Note shall have been issued and registered as the
absolute owner and holder of such Equipment Note for the purpose of receiving
payment of all amounts payable by the Owner with respect to such Equipment
Note
and for all purposes until a notice stating otherwise is received from the
Mortgagee and such change is reflected on the Equipment Note Register. The
Mortgagee will promptly notify the Owner of each registration of a transfer
of
an Equipment Note. Any such transferee of an Equipment Note, by its acceptance
of an Equipment Note, (i) agrees to the provisions of this Trust Indenture
and
the Participation Agreement applicable to Note Holders, including Sections
6.3,
6.4 and 9.1 thereof, and shall be deemed to have covenanted to the parties
to
the Participation Agreement as to the matters covenanted by the original Note
Holder in the Participation Agreement, (ii) agrees to the restrictions set
forth
in Sections 4.1(a)(ii) and 4.1(a)(iii) of the Intercreditor Agreement, and
shall
be deemed to have covenanted to the parties to the Intercreditor Agreement
not
to give any direction, or otherwise authorize, the Mortgagee to take any action
that would violate Sections 4.1(a)(ii) or 4.1(a)(iii) of the Intercreditor
Agreement, and (iii) agrees to the provisions of Section 2.7 of the
Intercreditor Agreement, and shall be deemed to have covenanted to the parties
to the Intercreditor Agreement to perform its obligations as a Note Holder
under
Section 2.7 of the Intercreditor Agreement. Subject to compliance by the Note
Holder and its transferee (if any) of the requirements set forth in this Section
2.07, Mortgagee and Owner shall use all reasonable efforts to issue new
Equipment Notes upon transfer or exchange within 10 Business Days of the date
an
Equipment Note is surrendered for transfer or exchange.
SECTION
2.08. Mutilated, Destroyed, Lost or
Stolen Equipment Notes
If
any
Equipment Note shall become mutilated, destroyed, lost or stolen, the Owner
shall, upon the written request of the holder of such Equipment Note, execute
and the Mortgagee shall authenticate and deliver in replacement thereof a new
Equipment Note, payable in the same Original Amount dated the same date and
captioned as issued in connection with the Aircraft. If the Equipment Note
being
replaced has become mutilated, such Equipment Note shall be surrendered to
the
Mortgagee and a photocopy thereof shall be furnished to the Owner. If the
Equipment Note being replaced has been destroyed, lost or stolen, the holder
of
such Equipment Note shall furnish to the Owner and the Mortgagee such security
or indemnity as may be required by them to save the Owner and the Mortgagee
harmless and evidence satisfactory to the Owner and the Mortgagee of the
destruction, loss or theft of such Equipment Note and of the
ownership
thereof. If a “qualified institutional buyer” of the type referred to in
paragraph (a)(1)(i)(A), (B), (D) or (E) of Rule 144A under the Securities Act
(a
“QIB”) is the holder of any such destroyed, lost or stolen Equipment Note, then
the written indemnity of such QIB, signed by an authorized officer thereof,
in
favor of, delivered to and in form reasonably satisfactory Owner shall be
accepted as satisfactory indemnity and security and no further indemnity or
security shall be required as a condition to the execution and delivery of
such
new Equipment Note. Subject to compliance by the Note Holder with the
requirements set forth in this Section 2.08, Mortgagee and Owner shall use
all
reasonable efforts to issue new Equipment Notes within 10 Business Days of
the
date of the written request therefor from the Note Holder.
SECTION
2.09. Payment of Expenses on Transfer;
Cancellation
(a) No
service charge shall be made to a Note Holder for any registration of transfer
or exchange of Equipment Notes, but the Mortgagee, as Equipment Note Registrar,
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer
or
exchange of Equipment Notes.
(b) The
Mortgagee shall cancel all Equipment Notes surrendered for replacement,
redemption, transfer, exchange, payment or cancellation and shall destroy the
canceled Equipment Notes.
SECTION
2.10. Mandatory
Redemptions of Equipment Notes
On
the
date on which the Owner is required pursuant to Section 4.05 hereof to make
payment for an Event of Loss with respect to the Airframe, all of the Equipment
Notes shall be redeemed in whole at a redemption price equal to 100% of the
unpaid Original Amount thereof, together with all accrued interest thereon
to
the date of redemption and all other Secured Obligations (other than Related
Secured Obligations) owed or then due and payable to the Note Holders but
without Make-Whole Amount.
SECTION
2.11. Voluntary Redemptions of
Equipment Notes
(a) All
(but
not less than all) of the Equipment Notes may be redeemed by the Owner upon
at
least 30 days’ revocable prior written notice to the Mortgagee and the Note
Holders, and such Equipment Notes shall be redeemed in whole at a redemption
price equal to 100% of the unpaid Original Amount thereof, together with accrued
interest thereon to the date of redemption and all other Secured Obligations
(other than Related Secured Obligations) owed or then due and payable to the
Note Holders plus Make-Whole Amount, if any.
(b) All
of
the Equipment Notes of any of the Series B or Series C or of any particular
series of Additional Series Equipment Notes may be redeemed by the Owner upon
at
least 30 days’ revocable prior written notice to the Mortgagee and the Note
Holders of each Series to be redeemed, and such Equipment Notes shall be
redeemed in whole at a redemption price equal to 100% of the unpaid Original
Amount thereof, together with accrued interest thereon to the date of redemption
and all other Secured Obligations (other than Related Secured
Obligations)
owed or then due and payable to the Note Holders of such Series plus Make-Whole
Amount, if any; provided
that no
redemption shall be permitted under this Section 2.11(b) unless the
following conditions have been satisfied: (1) simultaneously with such
redemption, the Related Series B Equipment Notes (in the case of redemption
hereunder of the Series B Equipment Notes), Related Series C Equipment Notes
(in
the case of redemption hereunder of the Series C Equipment Notes) or the Related
Additional Series Equipment Notes in respect of the Additional Series Equipment
Notes being redeemed (in the case of redemption of any series of Additional
Series Equipment Notes), as the case may be, shall also be redeemed; and (2)
simultaneously with such redemption, new Series B Equipment Notes (in the case
of redemption hereunder of the Series B Equipment Notes), Series C Equipment
Notes (in the case of redemption hereunder of the Series C Equipment Notes)
or
Additional Series Equipment Notes of the same series being redeemed (in the
case
of redemption hereunder of a series of Additional Series Equipment Notes) shall
be reissued in accordance with Section 4(a)(vi) of the Note Purchase Agreement
and Section 9.1(c) of the Intercreditor Agreement.
SECTION
2.12. Redemptions; Notice of
Redemption
(a) No
redemption of any Equipment Note may be made except to the extent and in the
manner expressly permitted by this Trust Indenture. No purchase of any Equipment
Note may be made by the Mortgagee.
(b) Notice
of
redemption with respect to the Equipment Notes shall be given by the Mortgagee
by first-class mail, postage prepaid, mailed not less than 20 nor more than
60
days prior to the applicable redemption date, to each Note Holder of such
Equipment Notes to be redeemed, at such Note Holder’s address appearing in the
Equipment Note Register; provided that such notice shall be revocable by written
notice from the Owner to Mortgagee given not later than three days prior to
the
redemption date. All notices of redemption shall state: (1) the redemption
date,
(2) the applicable basis for determining the redemption price, (3) that on
the
redemption date, the redemption price will become due and payable upon each
such
Equipment Note, and that, if any such Equipment Notes are then outstanding,
interest on such Equipment Notes shall cease to accrue on and after such
redemption date, and (4) the place or places where such Equipment Notes are
to
be surrendered for payment of the redemption price.
(c) On
or
before the redemption date, the Owner (or any person on behalf of the Owner)
shall, to the extent an amount equal to the redemption price for the Equipment
Notes to be redeemed on the redemption date shall not then be held by the
Mortgagee, deposit or cause to be deposited with the Mortgagee by 12:30 PM
New
York time on the redemption date in immediately available funds the redemption
price of the Equipment Notes to be redeemed.
(d) Notice
of
redemption having been given as aforesaid, the Equipment Notes to be redeemed
shall, on the redemption date, become due and payable at the Corporate Trust
Office of the Mortgagee or at any office or agency maintained for such purposes
pursuant to Section 2.07, and from and after such redemption date (unless there
shall be a default in the payment of the redemption price) any such Equipment
Notes then outstanding shall cease to bear interest. Upon surrender of any
such
Equipment Note for redemption in accordance with
said
notice, such Equipment Note shall be redeemed at the redemption price. If any
Equipment Note called for redemption shall not be so paid upon surrender thereof
for redemption, the principal amount thereof shall, until paid, continue to
bear
interest from the applicable redemption date at the interest rate in effect
for
such Equipment Note as of such redemption date.
SECTION
2.13. Subordination
(a) The
Owner, each Note Holder (by acceptance of its Equipment Notes of any Series)
and
each Related Note Holder (by acceptance of its Related Equipment Note), hereby
agree that no payment or distribution shall be made on or in respect of the
Secured Obligations owed to such Note Holder of such Series or owed to such
Related Note Holder, including any payment or distribution of cash, property
or
securities after the commencement of a proceeding of the type referred to in
Section 5.01(v), (vi) or (vii) hereof, except as expressly provided in Article
III hereof.
(b) By
the
acceptance of its Equipment Notes of any Series (other than Series A), each
Note
Holder of such Series agrees that in the event that such Note Holder, in its
capacity as a Note Holder, shall receive any payment or distribution on any
Secured Obligations in respect of such Series which it is not entitled to
receive under this Section 2.13 or Article III hereof, it will hold any amount
so received in trust for the Senior Holder (as defined in Section 2.13(c)
hereof) and will forthwith turn over such payment to the Mortgagee in the form
received to be applied as provided in Article III hereof. By the acceptance
of
its Related Equipment Notes (other than Related Series A Equipment Notes),
each
Related Note Holder agrees that in the event that such Related Note Holder,
in
its capacity as a Related Note Holder, shall receive any payment or distribution
pursuant to this Trust Indenture on any Related Secured Obligations which it
is
not entitled to receive under this Section 2.13 or Article III hereof, it will
hold any amount so received in trust for the Senior Holder (as defined in
Section 2.13(c) hereof) and will forthwith turn over such payment to the
Mortgagee in the form received to be applied as provided in Article III
hereof.
(c) As
used
in this Section 2.13, the term “Senior Holder” shall mean (i) the Note Holders
of Series A and Related Note Holders of the Related Series A Equipment Notes
until the Secured Obligations in respect of Series A Equipment Notes and Related
Series A Equipment Notes have been paid in full, (ii) after the Secured
Obligations in respect of Series A Equipment Notes and Related Series A
Equipment Notes have been paid in full, the Note Holders of Series B Equipment
Notes and Related Note Holders of the Related Series B Equipment Notes
until the Secured Obligations in respect of Series B Equipment Notes and Related
Series B Equipment Notes have been paid in full, (iii) after the Secured
Obligations in respect of Series B Equipment Notes and Related Series B
Equipment Notes have been paid in full, the Note Holders of Series C Equipment
Notes and Related Note Holders of the Related Series C Equipment Notes
until the Secured Obligations in respect of Series C Equipment Notes and Related
Series C Equipment Notes have been paid in full and (iv) after the
Secured Obligations in respect of the Series C Equipment Notes and Related
Series C Equipment Notes have been paid in full (and except as otherwise
provided in an amendment to this Trust Indenture pursuant to Section 10.01(b)
hereof), the Note Holders of the Additional Series Equipment Notes, if issued,
and Related Note Holders of the Related Additional Series Equipment Notes,
if
issued,
until the Secured Obligations in respect of the Additional Series Equipment
Notes and Related Additional Series Equipment Notes have been paid in
full.
RECEIPT,
DISTRIBUTION AND APPLICATION OF PAYMENTS
SECTION
3.01. Basic
Distributions
Except
as
otherwise provided in Sections 3.02 and 3.03 hereof, each periodic payment
of
principal or interest on the Equipment Notes received by the Mortgagee shall
be
promptly distributed in the following order of priority:
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(i)
|
so
much of such payment as shall be required to pay in full the aggregate
amount of the payment or payments of Original Amount and interest
(as well
as any interest on any overdue Original Amount and, to the extent
permitted by Law, on any overdue interest) then due under all Series
A
Equipment Notes shall be distributed to the Note Holders of Series
A
ratably, without priority of one over the other, in the proportion
that
the amount of such payment or payments then due under each Series
A
Equipment Note bears to the aggregate amount of the payments then
due
under all Series A Equipment Notes;
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(ii)
|
after
giving effect to paragraph (i) above, so much of such payment remaining
as
shall be required to pay in full the aggregate amount of the payment
or
payments of Original Amount and interest (as well as any interest
on any
overdue Original Amount and, to the extent permitted by Law, on any
overdue interest) then due under all Series B Equipment Notes shall
be
distributed to the Note Holders of Series B ratably, without priority
of
one over the other, in the proportion that the amount of such payment
or
payments then due under each Series B Equipment Note bears to the
aggregate amount of the payments then due under all Series B Equipment
Notes;
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(iii)
|
after
giving effect to paragraph (ii) above, so much of such payment remaining
as shall be required to pay in full the aggregate amount of the payment
or
payments of Original Amount and interest (as well as any interest
on any
overdue Original Amount and, to the extent permitted by Law, on any
overdue interest) then due under all Series C Equipment Notes shall
be
distributed to the Note Holders of Series C ratably, without priority
of
one over the other, in the proportion that the amount of such payment
or
payments then due under each Series C Equipment Note bears to the
aggregate amount of the payments then due under all Series C Equipment
Notes; and
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(iv)
|
after
giving effect to paragraph (iii) above (and except as otherwise provided
in an amendment to this Trust Indenture pursuant to Section 10.01(b)
hereof), so much of such payment remaining as shall be required to
pay in
full the aggregate amount of the payment or payments of Original
Amount
and interest (as well as
|
any
interest on any overdue Original Amount and, to the extent permitted by Law,
on
any overdue interest) then due under all Additional Series Equipment Notes
shall
be distributed to the Note Holders of Additional Series ratably, without
priority of one over the other, in the proportion that the amount of such
payment or payments then due under each Additional Series Equipment Note bears
to the aggregate amount of the payments then due under all Additional Series
Equipment Notes.
SECTION
3.02. Event of Loss; Replacement;
Optional Redemption
Except
as
otherwise provided in Section 3.03 hereof, any payments received by the
Mortgagee (i) with respect to the Airframe or the Airframe and one or more
Engines as the result of an Event of Loss pursuant to Section 2.10 or (ii)
pursuant to an optional redemption of the Equipment Notes pursuant to
Section 2.11 hereof shall be applied to redemption of the Equipment Notes
and to all other Secured Obligations then due by applying such funds in the
following order of priority:
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First,
|
(a)
to reimburse the Mortgagee and the Note Holders for any reasonable
costs
or expenses incurred in connection with such redemption for which
they are
entitled to reimbursement, or indemnity by Owner, under the Operative
Agreements and then (b) to pay any other Secured Obligations then
due
(except as provided in clause “Second” and “Third” below) to the
Mortgagee, the Note Holders and the other Indenture Indemnitees
under this
Trust Indenture, the Participation Agreement or the Equipment Notes
(other
than amounts specified in clause “Second” and “Third”
below);
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Second,
|
(i)
|
to
pay the amounts specified in paragraph (i) of clause “Third” of Section
3.03 hereof plus Make-Whole Amount, if any, then due and payable
in
respect of the Series A Equipment Notes, but excluding distributions
of
amounts of Related Secured Obligations to Related Note
Holders;
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(ii)
|
after
giving effect to paragraph (i) above, to pay the amounts specified
in
paragraph (ii) of clause “Third” of Section 3.03 hereof plus Make-Whole
Amount, if any, then due and payable in respect of the Series B
Equipment Notes, but excluding distributions of amounts of Related
Secured
Obligations to Related Note
Holders;
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(iii)
|
after
giving effect to paragraph (ii) above, to pay the amounts specified
in
paragraph (iii) of clause “Third” of Section 3.03 hereof plus Make-Whole
Amount, if any, then due and payable in respect of the Series C
Equipment Notes, but excluding distributions of amounts of Related
Secured
Obligations to Related Note Holders;
and
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|
(iv)
|
after
giving effect to paragraph (iii) above, to pay the amounts specified
in
paragraph (iv) of clause “Third” of Section 3.03 hereof, but excluding
distributions of amounts of Related Secured Obligations to Related
Note
Holders; and
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Third,
|
(i)
|
to
pay the amounts specified in paragraph (i) of clause “Third” of Section
3.03 hereof then due and payable in respect of the Related Series
A
Equipment Notes;
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|
(ii)
|
after
giving effect to paragraph (i) above, to pay the amounts specified
in
paragraph (ii) of clause “Third” of Section 3.03 hereof then due and
payable in respect of the Related Series B Equipment
Notes;
|
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(iii)
|
after
giving effect to paragraph (ii) above, to pay the amounts specified
in
paragraph (iii) of clause “Third” of Section 3.03 hereof then due and
payable in respect of the Related Series C Equipment Notes;
and
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|
(iv)
|
after
giving effect to paragraph (iii) above, to pay the amounts specified
in
paragraph (iv) of clause “Third” of Section 3.03 then due and payable in
respect of the Related Additional Series Equipment Notes;
and
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Fourth,
|
as
provided in clause “Fourth” of Section 3.03
hereof;
|
provided,
however,
that if
a Replacement Airframe or Replacement Engine shall be substituted for the
Airframe or Engine subject to such Event of Loss as provided in Section 4.05
hereof, any insurance, condemnation or similar proceeds which result from such
Event of Loss and are paid over to the Mortgagee shall be held by the Mortgagee
as permitted by Section 7.04 hereof (provided that such moneys shall be invested
as provided in Section 6.06 hereof) as additional security for the obligations
of Owner under Operative Agreements and such proceeds (and such investment
earnings), to the extent not theretofore applied as provided herein, shall
be
released to the Owner at the Owner’s written request upon the release of such
Airframe or Engine and the replacement thereof as provided herein; provided,
further,
however,
in the
case of a redemption of Equipment Notes pursuant to Section 2.11(b), if a
particular Series is not being redeemed pursuant thereto, no application of
funds shall be made pursuant to the paragraph in clause “Second” above that
refers to such Series in connection with such redemption. No Make-Whole Amount
shall be due and payable on the Equipment Notes as a consequence of the
redemption of the Equipment Notes as a result of an Event of Loss with respect
to the Airframe or the Airframe and one or more Engines.
SECTION
3.03. Payments After Event of
Default
Except
as
otherwise provided in Section 3.04 hereof, all payments received and amounts
held or realized by the Mortgagee (including any amounts realized by the
Mortgagee from the exercise of any remedies pursuant to Article V hereof) after
an Event of Default shall have occurred and be continuing, as well as all
payments or amounts then held by the Mortgagee as part of the Collateral, shall
be promptly distributed by the Mortgagee in the following order of
priority:
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First,
|
so
much of such payments or amounts as shall be required to (i) reimburse
the
Mortgagee or WTC for any tax (except to the extent resulting from
a
failure of the Mortgagee to withhold taxes pursuant to Section
2.04(b)
hereof), expense or other loss (including, without limitation,
all amounts
to be expended at the expense of, or charged upon the rents, revenues,
issues, products and profits of, the property
|
|
included
in the Collateral (all such property being herein called the “Mortgaged
Property”) pursuant to Section 5.03(b) hereof) incurred by the
Mortgagee or WTC (to the extent not previously reimbursed), the
expenses
of any sale, or other proceeding, reasonable attorneys’ fees and expenses,
court costs, and any other expenditures incurred or expenditures
or
advances made by the Mortgagee, WTC or the Note Holders in the
protection,
exercise or enforcement of any right, power or remedy or any damages
sustained by the Mortgagee, WTC or any Note Holder, liquidated
or
otherwise, upon such Event of Default shall be applied by the Mortgagee
as
between itself, WTC and the Note Holders in reimbursement of such
expenses
and any other expenses for which the Mortgagee, WTC or the Note
Holders
are entitled to reimbursement under any Operative Agreement (including
by
subrogation pursuant to Section 2.7 of the Intercreditor Agreement)
and
(ii) pay all Secured Obligations payable to the other Indenture
Indemnitees hereunder and under the Participation Agreement (other
than
amounts specified in clauses Second and Third below); and in the
case the
aggregate amount to be so distributed is insufficient to pay as
aforesaid
in clauses (i) and (ii), then ratably, without priority of one
over the
other, in proportion to the amounts owed each
hereunder;
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Second,
|
so
much of such payments or amounts remaining as shall be required
to
reimburse the then existing or prior Note Holders for payments
made
pursuant to Section 6.03 hereof (to the extent not previously
reimbursed) shall be distributed to such then existing or prior
Note
Holders ratably, without priority of one over the other, in accordance
with the amount of the payment or payments made by each such then
existing
or prior Note Holder pursuant to said Section 6.03
hereof;
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Third,
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(i)
|
so
much of such payments or amounts remaining as shall be required
to pay in
full the aggregate unpaid Original Amount of all Series A Equipment
Notes,
and the accrued but unpaid interest and other amounts due thereon
and all
other Secured Obligations in respect of the Series A Equipment
Notes to
the date of distribution and all other Related Secured Obligations
in
respect of Related Series A Equipment Notes then due, shall be
distributed to the Note Holders of Series A and Related Note Holders
of
the Related Series A Equipment Notes, and in case the aggregate
amount so
to be distributed shall be insufficient to pay in full as aforesaid,
then
ratably, without priority of one over the other, in the proportion
that
the aggregate unpaid Original Amount of all Series A Equipment
Notes held
by each holder plus the accrued but unpaid interest and other amounts
due
hereunder or thereunder to the date of distribution and all other
Related
Secured Obligations then due in respect of the Related Series A
Equipment Notes held by such holder, bears to the aggregate unpaid
Original Amount of all Series A Equipment Notes held by all such
holders
plus the accrued but unpaid interest and other amounts due thereon
to the
date of distribution and all other Related Secured Obligations
in respect
of the Related Series A Equipment Notes then
due;
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(ii)
|
after
giving effect to paragraph (i) above, so much of such payments
or amounts
remaining as shall be required to pay in full the aggregate unpaid
Original
|
|
Amount
of all Series B Equipment Notes, and the accrued but unpaid interest
and
other amounts due thereon and all other Secured Obligations in
respect of
the Series B Equipment Notes to the date of distribution and all
other
Related Secured Obligations in respect of Related Series B Equipment
Notes then due, shall be distributed to the Note Holders of Series
B and
Related Note Holders of the Related Series B Equipment Notes, and in
case the aggregate amount so to be distributed shall be insufficient
to
pay in full as aforesaid, then ratably, without priority of one
over the
other, in the proportion that the aggregate unpaid Original Amount
of all
Series B Equipment Notes held by each holder plus the accrued but
unpaid
interest and other amounts due hereunder or thereunder to the date
of
distribution and all other Related Secured Obligations then due
in respect
of Related Series B Equipment Notes held by such holder, bears to the
aggregate unpaid Original Amount of all Series B Equipment Notes
held by
all such holders plus the accrued but unpaid interest and other
amounts
due thereon to the date of distribution and all other Related Secured
Obligations in respect of Related Series B Equipment Notes then due;
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(iii)
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after
giving effect to paragraph (ii) above, so much of such payments
or amounts
remaining as shall be required to pay in full the aggregate unpaid
Original Amount of all Series C Equipment Notes, and the accrued
but
unpaid interest and other amounts due thereon and all other Secured
Obligations in respect of the Series C Equipment Notes to the date
of
distribution and all other Related Secured Obligations in respect
of
Related Series C Equipment Notes then due, shall be distributed to
the Note Holders of Series C and Related Note Holders of the Related
Series C Equipment Notes, and in case the aggregate amount so to be
distributed shall be insufficient to pay in full as aforesaid,
then
ratably, without priority of one over the other, in the proportion
that
the aggregate unpaid Original Amount of all Series C Equipment
Notes held
by each holder plus the accrued but unpaid interest and other amounts
due
hereunder or thereunder to the date of distribution and all other
Related
Secured Obligations then due in respect of the Related Series C
Equipment Notes held by such holder, bears to the aggregate unpaid
Original Amount of all Series C Equipment Notes held by all such
holders
plus the accrued but unpaid interest and other amounts due thereon
to the
date of distribution and all other Related Secured Obligations
in respect
of the Related Series C Equipment Notes then due;
and
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(iv)
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after
giving effect to paragraph (iii) above (and except as otherwise
provided
in an amendment to this Trust Indenture pursuant to Section 10.01(b)
hereof), so much of such payments or amounts remaining as shall
be
required to pay in full the aggregate unpaid Original Amount of
all
Additional Series Equipment Notes, and the accrued but unpaid interest
and
other amounts due thereon and all other Secured Obligations in
respect of
the Additional Series Equipment Notes to the date of distribution
and all
other Related Secured Obligations in respect of the Related Additional
Series Equipment Notes then due, shall be distributed to the Note
Holders
of Additional Series and Related Note Holders of the Related Additional
Series Equipment Notes, and in case the aggregate amount so to
be
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distributed
shall be insufficient to pay in full as aforesaid, then ratably,
without
priority of one over the other, in the proportion that the aggregate
unpaid Original Amount of all Additional Series Equipment Notes
held by
each holder plus the accrued but unpaid interest and other amounts
due
hereunder or thereunder to the date of distribution and all other
Related
Secured Obligations then due in respect of Related Additional Series
Equipment Notes held by such holder, bears to the aggregate unpaid
Original Amount of all Additional Series Equipment Notes held by
all such
holders plus the accrued but unpaid interest and other amounts
due thereon
to the date of distribution and all other Related Secured Obligations
in
respect of Related Additional Series Equipment Notes then due;
and
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(v)
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after
giving effect to paragraph (iv) above, if any Related Equipment
Note is
outstanding, any of such payments or amounts remaining and any
invested
Cash Equivalents shall be held by the Mortgagee in an Eligible
Account in
accordance with the provisions of Section 3.07 (and invested as
provided in Section 6.06 hereof) as additional security for the
Related
Secured Obligations, and such amounts (and any investment earnings
thereon) shall be distributed from time to time in accordance with
the
foregoing provisions of this clause “Third” as and to the extent any
Related Secured Obligation shall at any time and from time to time
become
due and remain unpaid after the giving of any required notice and
the
expiration of any applicable grace period; and, upon the payment
in full
of all Related Secured Obligations the balance, if any, of any
such
remaining amounts and investment earnings thereon shall be applied
as
provided in clause Fourth of this Section 3.03;
and
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Fourth,
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the
balance, if any, of such payments or amounts remaining thereafter
shall be
distributed to the Owner.
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No
Make-Whole Amount shall be due and payable on the Equipment Notes as a
consequence of the acceleration of the Equipment Notes as a result of an Event
of Default.
SECTION
3.04. Certain
Payments
(a) Any
payments received by the Mortgagee for which no provision as to the application
thereof is made in this Trust Indenture and for which such provision is made
in
any other Operative Agreement shall be applied forthwith to the purpose for
which such payment was made in accordance with the terms of such other Operative
Agreement, as the case may be.
(b) Notwithstanding
anything to the contrary contained in this Article III, the Mortgagee will
distribute promptly upon receipt any indemnity payment received by it from
the
Owner in respect of the Mortgagee in its individual capacity, any Note Holder
or
any other Indenture Indemnitee, in each case whether or not pursuant to Section
8 of the Participation Agreement, directly to the Person entitled thereto.
Any
payment received by the Mortgagee under the third paragraph of Section 2.02
shall be distributed to the Subordination Agent in its capacity as Note Holder
to be distributed in accordance with the terms of the Intercreditor
Agreement,
except that any portion of any such payment to which a Note Holder has been
subrogated pursuant to Section 2.7 of the Intercreditor Agreement shall instead
be distributed to such Note Holder.
(c) For
the
avoidance of doubt, no amount will be distributed pursuant to this Article
III
to any holder of a note issued under a Related Indenture that is not a Related
Note Holder (as such).
SECTION
3.05. Other
Payments
Any
payments received by the Mortgagee for which no provision as to the application
thereof is made elsewhere in this Trust Indenture or in any other Operative
Agreement shall be distributed by the Mortgagee to the extent received or
realized at any time, in the order of priority specified in Section 3.01 hereof,
and after payment in full of all amounts then due in accordance with
Section 3.01 in the manner provided in clause “Fourth” of Section 3.03
hereof.
SECTION
3.06. Cooperation
Prior
to
making any distribution under this Article III, the Mortgagee shall consult
with
the Related Mortgagees to determine amounts payable with respect to the Related
Secured Obligations. The Mortgagee shall cooperate with the Related Mortgagees
and shall provide such information as shall be reasonably requested by each
Related Mortgagee to enable such Related Mortgagee to determine amounts
distributable under Article III of its Related Indenture.
SECTION
3.07. Securities
Account
In
furtherance of the provisions of Section 3.03 of the Trust Indenture, WTC agrees
to act as an Eligible Institution under the Trust Indenture in accordance with
the provisions of the Trust Indenture (in such capacity, the “Securities
Intermediary”). Except in its capacity as Mortgagee, WTC waives any claim or
lien against any Eligible Account it may have, by operation of law or otherwise,
for any amount owed to it by Owner. The Securities Intermediary hereby agrees
that, notwithstanding anything to the contrary in the Trust Indenture, (i)
any
amounts to be held by the Mortgagee pursuant to paragraph (v) of clause “Third”
of Section 3.03 and any investment earnings thereon or other Cash Equivalents
will be credited to an Eligible Account (the “Securities Account”) for which it
is a “securities intermediary” (as defined in Section 8-102(a)(14) of the NY
UCC) and the Mortgagee is the “entitlement holder” (as defined in Section
8-102(a)(7) of the NY UCC) of the “securities entitlement” (as defined in
Section 8-102(a)(17) of the NY UCC) with respect to each “financial asset” (as
defined in Section 8-102(a)(9) of the NY UCC) credited to such Eligible Account,
(ii) all such amounts, Cash Equivalents and all other property acquired with
cash credited to the Securities Account will be credited to the Securities
Account, (iii) all items of property (whether cash, investment property, Cash
Equivalents, other investments, securities, instruments or other property)
credited to the Securities Account will be treated as a “financial asset” under
Article 8 of the NY UCC, (iv) its “securities intermediary’s jurisdiction” (as
defined in Section 8-110(e) of the NY UCC) with respect to the Securities
Account is the State of New York, and (v) all securities, instruments and other
property in order or registered from and credited to the Securities Account
shall
be
payable to or to the order of, or registered in the name of, the Securities
Intermediary or shall be indorsed to the Securities Intermediary or in blank,
and in no case whatsoever shall any financial asset credited to the Securities
Account be registered in the name of the Owner, payable to or to the order
of
the Owner or specially indorsed to the Owner except to the extent the foregoing
have been specially endorsed by the Owner to the Securities Intermediary or
in
blank. The Mortgagee agrees that it will hold (and will indicate clearly in
its
books and records that it holds) its “securities entitlement” to the “financial
assets” credited to the Securities Account in trust for the benefit of the Note
Holders and each of the Indenture Indemnitees as set forth in the Trust
Indenture. The Owner acknowledges that, by reason of the Mortgagee being the
“entitlement holder” in respect of the Securities Account as provided above, the
Mortgagee shall have the sole right and discretion, subject only to the terms
of
the Trust Indenture, to give all “entitlement orders” (as defined in Section
8-102(a)(8) of the NY UCC) with respect to the Securities Account and any and
all financial assets and other property credited thereto to the exclusion of
the
Owner.
COVENANTS
OF THE OWNER
SECTION
4.01. Liens
The
Owner
will not directly or indirectly create, incur, assume or suffer to exist any
Lien or with respect to the Airframe or any Engine, title to any of the
foregoing or any interest of Owner therein, except Permitted Liens. The Owner
shall promptly, at its own expense, take such action as may be necessary to
duly
discharge (by bonding or otherwise) any Lien other than a Permitted Lien arising
at any time.
SECTION
4.02. Possession, Operation and Use,
Maintenance, Registration and Markings
(a) General.
Except
as otherwise expressly provided herein, the Owner shall be entitled to operate,
use, locate, employ or otherwise utilize or not utilize the Airframe, any Engine
or any Parts in any lawful manner or place in accordance with the Owner’s
business judgment.
(b) Possession.
The
Owner, without the prior consent of Mortgagee, shall not lease or otherwise
in
any manner deliver, transfer or relinquish possession of the Aircraft, the
Airframe or any Engine or install any Engine, or permit any Engine to be
installed, on any airframe other than the Airframe; except that the Owner may,
without such prior written consent of Mortgagee:
(i) Subject
or permit any Permitted Lessee to subject (i) the Airframe to normal
interchange agreements or (ii) any Engine to normal interchange, pooling,
borrowing or similar arrangements, in each case customary in the commercial
airline industry and entered into by Owner or such Permitted Lessee, as the
case
may be, in the ordinary course of business; provided,
however,
that if
Owner’s title to any such Engine is divested under any
such
agreement or arrangement, then such Engine shall be deemed to have suffered
an
Event of Loss as of the date of such divestiture, and Owner shall comply with
Section 4.04(e) in respect thereof;
(ii) Deliver
or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe,
any Engine or any Part (x) to the manufacturer thereof or to any third-party
maintenance provider for testing, service, repair, maintenance or overhaul
work
on the Aircraft, Airframe, any Engine or any Part, or, to the extent required
or
permitted by Section 4.04, for alterations or modifications in or additions
to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose
of
transport to a Person referred to in the preceding clause (x);
(iii) Install
or permit any Permitted Lessee to install an Engine on an airframe owned by
Owner or such Permitted Lessee, as the case may be, free and clear of all Liens,
except (x) Permitted Liens and those that do not apply to the Engines, and
(y)
the rights of third parties under normal interchange or pooling agreements
and
arrangements of the type that would be permitted under Section
4.02(b)(i);
(iv) Install
or permit any Permitted Lessee to install an Engine on an airframe leased to
Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee
subject to a mortgage, security agreement, conditional sale or other secured
financing arrangement, but only if (x) such airframe is free and clear of all
Liens, except (A) the rights of the parties to such lease, or any such secured
financing arrangement, covering such airframe and (B) Liens of the type
permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case
may be, shall have received from the lessor, mortgagee, secured party or
conditional seller, in respect of such airframe, a written agreement (which
may
be a copy of the lease, mortgage, security agreement, conditional sale or other
agreement covering such airframe), whereby such Person agrees that it will
not
acquire or claim any right, title or interest in, or Lien on, such Engine by
reason of such Engine being installed on such airframe at any time while such
Engine is subject to the Lien of this Trust Indenture;
(v) Install
or permit any Permitted Lessee to install an Engine on an airframe owned by
Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or
purchased by Owner or such Permitted Lessee subject to a conditional sale or
other security agreement under circumstances where neither clause (iii) or
(iv)
above is applicable; provided,
however,
that
any such installation shall be deemed an Event of Loss with respect to such
Engine, and Owner shall comply with Section 4.04(e) hereof in respect
thereof;
(vi) Transfer
or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe
or any Engine to the U.S. Government, in which event Owner shall promptly notify
Mortgagee in writing of any such transfer of possession and, in the case of
any
transfer pursuant to CRAF, in such notification shall identify by name, address
and telephone numbers the Contracting Office Representative or Representatives
for the Military Airlift Command of the United States Air Force to whom notices
must be given and to whom requests or claims must be made to the extent
applicable under CRAF;
(vii) Enter
into a charter or Wet Lease or other similar arrangement with respect to the
Aircraft or any other aircraft on which any Engine may be installed (which
shall
not be considered a transfer of possession hereunder); provided that
the
Owner’s obligations hereunder shall continue in full force and effect
notwithstanding any such charter or Wet Lease or other similar
arrangement;
(viii) So
long
as no Event of Default shall have occurred and be continuing, and subject to
the
provisions of the immediately following paragraph, enter into a lease with
respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier
that is not then subject to any bankruptcy, insolvency, liquidation,
reorganization, dissolution or similar proceeding and shall not have
substantially all of its property in the possession of any liquidator, trustee,
receiver or similar person; provided that,
in the
case only of a lease to a Permitted Foreign Air Carrier, (A) the United States
maintains diplomatic relations with the country of domicile of such Permitted
Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least
as
good as those in effect on the Closing Date) and (B) Owner shall have furnished
Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee,
in the country of domicile of such Permitted Foreign Air Carrier, that
(v) the terms of such lease are the legal, valid and binding obligations of
the parties thereto enforceable under the laws of such jurisdiction, (w) it
is not necessary for Mortgagee to register or qualify to do business in such
jurisdiction, if not already so registered or qualified, as a result, in whole
or in part, of the proposed lease, (x) Mortgagee’s Lien in respect of, the
Aircraft, Airframe and Engines will be recognized in such jurisdiction,
(y) the Laws of such jurisdiction of domicile require fair compensation by
the government of such jurisdiction, payable in a currency freely convertible
into Dollars, for the loss of title to the Aircraft, Airframe or Engines in
the
event of the requisition by such government of such title (unless Owner shall
provide insurance in the amounts required with respect to hull insurance under
this Trust Indenture covering the requisition of title to the Aircraft, Airframe
or Engines by the government of such jurisdiction so long as the Aircraft,
Airframe or Engines are subject to such lease) and (z) the agreement of such
Permitted Air Carrier that its rights under the lease are subject and
subordinate to all the terms of this Trust Indenture is enforceable against
such
Permitted Air Carrier under applicable law;
provided
that (1)
the rights of any transferee who receives possession by reason of a transfer
permitted by any of clauses (i) through (viii) of this Section 4.02(b)
(other than by a transfer of an Engine which is deemed an Event of Loss) shall
be subject and subordinate to all the terms of this Trust Indenture, (2) the
Owner shall remain primarily liable for the performance of all of the terms
of
this Trust Indenture and all the terms and conditions of this Trust Indenture
and the other Operative Agreements shall remain in effect and (3) no lease
or
transfer of possession otherwise in compliance with this Section 4.02(b) shall
(x) result in any registration or re-registration of an Aircraft, except to
the
extent permitted by Section 4.02(e) or the maintenance, operation or use thereof
except in compliance with Sections 4.02(c) and 4.02(d) or (y) permit any action
not permitted to the Owner hereunder.
In
the
case of any lease permitted under this Section 4.02(b), the Owner will include
in such lease appropriate provisions which (t) make such lease expressly subject
and subordinate to all of the terms of this Trust Indenture, including the
rights of the Mortgagee to avoid such lease in the exercise of its rights to
repossession of the Airframe and Engines
hereunder;
(u) require the Permitted Lessee to comply with the terms of Section 4.06;
and
(v) require that the Airframe or any Engine subject thereto be used in
accordance with the limitations applicable to the Owner’s possession and use
provided in this Trust Indenture. No lease permitted under this
Section 4.02(b) shall be entered into unless (w) Owner shall provide
written notice to Mortgagee (such notice in the event of a lease to a U.S.
Air
Carrier to be given promptly after entering into any such lease or, in the
case
of a lease to any other Permitted Air Carrier, 10 days in advance of entering
into such lease); (x) Owner shall furnish to Mortgagee evidence reasonably
satisfactory to Mortgagee that the insurance required by Section 4.06
remains in effect; (y) all necessary documents shall have been duly filed,
registered or recorded in such public offices as may be required fully to
preserve the first priority security interest and International Interest
(subject to Permitted Liens) of Mortgagee in the Aircraft, Airframe and Engines;
and (z) Owner shall reimburse Mortgagee for all of its reasonable
out-of-pocket fees and expenses, including, without limitation, reasonable
fees
and disbursements of counsel, incurred by Mortgagee in connection with any
such
lease. Except as otherwise provided herein and without in any way relieving
the
Owner from its primary obligation for the performance of its obligations under
this Trust Indenture, the Owner may in its sole discretion permit a lessee
to
exercise any or all rights which the Owner would be entitled to exercise under
Sections 4.02 and 4.04, and may cause a lessee to perform any or all of the
Owner’s obligations under Article IV, and the Mortgagee agrees to accept actual
and full performance thereof by a lessee in lieu of performance by the Owner.
Mortgagee
hereby agrees, and each Note Holder and Related Note Holder by acceptance of
an
Equipment Note and a Related Equipment Note, respectively, agrees, for the
benefit of each lessor, conditional seller, indenture trustee or secured party
of any engine leased to, or purchased by, Owner or any Permitted Lessee subject
to a lease, conditional sale, trust indenture or other security agreement that
Mortgagee, each Note Holder and Related Note Holder and their respective
successors and assigns will not acquire or claim, as against such lessor,
conditional seller, indenture trustee or secured party, any right, title or
interest in any engine as the result of such engine being installed on the
Airframe at any time while such engine is subject to such lease, conditional
sale, trust indenture or other security agreement and owned by such lessor
or
conditional seller or subject to a trust indenture or security interest in
favor
of such indenture trustee or secured party.
(c) Operation
and Use.
So long
as the Aircraft, Airframe or any Engine is subject to the Lien of this Trust
Indenture, the Owner shall not operate, use or locate the Aircraft, Airframe
or
any Engine, or allow the Aircraft, Airframe or any Engine to be operated, used
or located, (i) in any area excluded from coverage by any insurance required
by
the terms of Section 4.06, except in the case of a requisition by the U.S.
Government where the Owner obtains indemnity in lieu of such insurance from
the
U.S. Government, or insurance from the U.S. Government, against substantially
the same risks and for at least the amounts of the insurance required by Section
4.06 covering such area, or (ii) in any recognized area of hostilities unless
covered in accordance with Section 4.06 by war risk insurance, or in either
case
unless the Aircraft, the Airframe or any Engine is only temporarily operated,
used or located in such area as a result of an emergency, equipment malfunction,
navigational error, hijacking, weather condition or other similar unforeseen
circumstance, so long as Owner diligently and in good faith proceeds to remove
the Aircraft from such area. So long as the Aircraft, the Airframe or any
Engine
is
subject to the Lien of this Trust Indenture, the Owner shall not permit such
Aircraft, Airframe or any Engine, as the case may be, to be used, operated,
maintained, serviced, repaired or overhauled (x) in violation of any Law
binding on or applicable to such Aircraft, Airframe or Engine or (y) in
violation of any airworthiness certificate, license or registration of any
Government Entity relating to the Aircraft, the Airframe or any Engine, except
(i) immaterial or non-recurring violations with respect to which corrective
measures are taken promptly by Owner or Permitted Lessee, as the case may be,
upon discovery thereof, or (ii) to the extent the validity or application of
any
such Law or requirement relating to any such certificate, license or
registration is being contested in good faith by Owner or Permitted Lessee
in
any reasonable manner which does not involve any material risk of the sale,
forfeiture or loss of the Aircraft, Airframe or any Engine, any material risk
of
criminal liability or material civil penalty against Mortgagee or impair the
Mortgagee’s security interest in the Aircraft, Airframe or any
Engine.
(d) Maintenance
and Repair.
So long
as the Aircraft, Airframe or any Engine is subject to the Lien of this Trust
Indenture, the Owner shall cause the Aircraft, Airframe and each Engine to
be
maintained, serviced, repaired and overhauled in accordance with (i) maintenance
standards required by or substantially equivalent to those required by the
FAA
or the central aviation authority of Canada, France, Germany, Japan, the
Netherlands or the United Kingdom for the Aircraft, Airframe and Engines, so
as
to (A) keep the Aircraft, the Airframe and each Engine in as good operating
condition as on the Closing Date, ordinary wear and tear excepted, (B) keep
the
Aircraft in such operating condition as may be necessary to enable the
applicable airworthiness certification of such Aircraft to be maintained under
the regulations of the FAA or other Aviation Authority then having jurisdiction
over the operation of the Aircraft, except during (x) temporary periods of
storage in accordance with applicable regulations, (y) maintenance and
modification permitted hereunder or (z) periods when the FAA or such other
Aviation Authority has revoked or suspended the airworthiness certificates
for
Similar Aircraft; and (ii) except during periods when a Permitted Lease is
in
effect, the same standards as Owner uses with respect to similar aircraft of
similar size in its fleet operated by Owner in similar circumstances and, during
any period in which a Permitted Lease is in effect, the same standards used
by
the Permitted Lessee with respect to similar aircraft of similar size in its
fleet and operated by the Permitted Lessee in similar circumstances (it being
understood that this clause (ii) shall not limit Owner’s obligations under the
preceding clause (i)). Owner further agrees that the Aircraft, Airframe and
Engines will be maintained, used, serviced, repaired, overhauled or inspected
in
compliance with applicable Laws with respect to the maintenance of the Aircraft
and in compliance with each applicable airworthiness certificate, license and
registration relating to the Aircraft, Airframe or any Engine issued by the
Aviation Authority, other than minor or nonrecurring violations with respect
to
which corrective measures are taken upon discovery thereof and except to the
extent Owner or Permitted Lessee is contesting in good faith the validity or
application of any such Law or requirement relating to any such certificate,
license or registration in any reasonable manner which does not create a
material risk of sale, loss or forfeiture of the Aircraft, the Airframe or
any
Engine or the interest of Mortgagee therein, or any material risk of criminal
liability or material civil penalty against Mortgagee. The Owner shall maintain
or cause to be maintained the Aircraft Documents in the English
language.
(e) Registration.
The
Owner on or prior to the date of the Closing shall cause the Aircraft to be
duly
registered in its name under the Act and except as otherwise
permitted
by this Section 4.02(e) at all times thereafter shall cause the Aircraft to
remain so registered. So long as no Special Default or Event of Default shall
have occurred and be continuing, Owner may, by written notice to Mortgagee,
request to change the country of registration of the Aircraft. Any such change
in registration shall be effected only in compliance with, and subject to all
of
the conditions set forth in, Section 6.4.5 of the Participation Agreement.
Unless the Trust Indenture has been discharged, Owner shall also cause the
Trust
Indenture to be duly recorded and at all times maintained of record as a
first-priority perfected mortgage (subject to Permitted Liens) on the Aircraft,
the Airframe and each of the Engines (except to the extent such perfection
or
priority cannot be maintained solely as a result of the failure by Mortgagee
to
execute and deliver any necessary documents). Unless the Lien of this Indenture
has been discharged, Owner shall cause the International Interest granted under
this Indenture in favor of the Mortgagee in each Airframe and Engine to be
registered on the International Registry as an International Interest on such
Airframe and Engine, subject to the Mortgagee providing its consent to the
International Registry with respect thereto, and shall cause the sale to Owner
of the Airframe and each Engine at the Closing to be registered on the
International Registry.
(f) Markings.
If
permitted by applicable Law, on or reasonably promptly after the Closing Date,
Owner will cause to be affixed to, and maintained in, the cockpit of the
Airframe and on each Engine, in each case, in a clearly visible location, a
placard of a reasonable size and shape bearing the legend: “Subject to a
security interest in favor of Wilmington Trust Company, not in its individual
capacity but solely as Mortgagee.” Such placards may be removed temporarily, if
necessary, in the course of maintenance of the Airframe or Engines. If any
such
placard is damaged or becomes illegible, Owner shall promptly replace it with
a
placard complying with the requirements of this Section.
SECTION
4.03. Inspection
(a) At
all
reasonable times, so long as the Aircraft is subject to the Lien of this Trust
Indenture, Mortgagee and its authorized representatives (the “Inspecting
Parties”) may (not more than once every 12 months unless an Event of Default has
occurred and is continuing then such inspection right shall not be so limited)
inspect the Aircraft, Airframe and Engines (including without limitation, the
Aircraft Documents) and any such Inspecting Party may make copies of such
Aircraft Documents not reasonably deemed confidential by Owner or such Permitted
Lessee.
(b) Any
inspection of the Aircraft hereunder shall be limited to a visual, walk-around
inspection and shall not include the opening of any panels, bays or other
components of the Aircraft, and no such inspection shall interfere with Owner’s
or any Permitted Lessee’s maintenance and operation of the Aircraft, Airframe
and Engines.
(c) With
respect to such rights of inspection, Mortgagee shall not have any duty or
liability to make, or any duty or liability by reason of not making, any such
visit, inspection or survey.
(d) Each
Inspecting Party shall bear its own expenses in connection with any such
inspection (including the cost of any copies made in accordance with
Section 4.03(a)).
SECTION
4.04. Replacement and Pooling of Parts,
Alterations, Modifications and Additions; Substitution of
Engines
(a) Replacement
of Parts.
Except
as otherwise provided herein, so long as the Airframe or Engine is subject
to
the Lien of this Indenture, Owner, at its own cost and expense, will, or will
cause a Permitted Lessee to, at its own cost and expense, promptly replace
(or
cause to be replaced) all Parts which may from time to time be incorporated
or
installed in or attached to the Aircraft, Airframe or any Engine and which
may
from time to time become worn out, lost, stolen, destroyed, seized, confiscated,
damaged beyond repair or permanently rendered unfit for use for any reason
whatsoever. In addition, Owner may, at its own cost and expense, or may permit
a
Permitted Lessee at its own cost and expense to, remove (or cause to be removed)
in the ordinary course of maintenance, service, repair, overhaul or testing
any
Parts, whether or not worn out, lost, stolen, destroyed, seized, confiscated,
damaged beyond repair or permanently rendered unfit for use; provided,
however,
that
Owner, except as otherwise provided herein, at its own cost and expense, will,
or will cause a Permitted Lessee at its own cost and expense to, replace such
Parts as promptly as practicable. All replacement parts shall be free and clear
of all Liens, except for Permitted Liens and pooling arrangements to the extent
permitted by Section 4.04(c) below (and except in the case of replacement
property temporarily installed on an emergency basis) and shall be in good
operating condition and have a value and utility not less than the value and
utility of the Parts replaced (assuming such replaced Parts were in the
condition required hereunder).
(b) Parts.
Except
as otherwise provided herein, any Part at any time removed from the Airframe
or
any Engine shall remain subject to the Lien of this Trust Indenture, no matter
where located, until such time as such Part shall be replaced by a part that
has
been incorporated or installed in or attached to such Airframe or any Engine
and
that meets the requirements for replacement parts specified above. Immediately
upon any replacement part becoming incorporated or installed in or attached
to
such Airframe or any Engine as provided in Section 4.04(a), without further
act,
(i) the replaced Part shall thereupon be free and clear of all rights of the
Mortgagee and shall no longer be deemed a Part hereunder, and (ii) such
replacement part shall become a Part subject to this Trust Indenture and be
deemed part of such Airframe or any Engine, as the case may be, for all purposes
hereof to the same extent as the Parts originally incorporated or installed
in
or attached to such Airframe or any Engine.
(c) Pooling
of Parts.
Any
Part removed from the Aircraft, Airframe or an Engine may be subjected by the
Owner or a Permitted Lessee to a normal pooling arrangement customary in the
airline industry and entered into in the ordinary course of business of Owner
or
Permitted Lessee, provided that the part replacing such removed Part shall
be
incorporated or installed in or attached to such Airframe or any Engine in
accordance with Sections 4.04(a) and 4.04(b) as promptly as practicable after
the removal of such removed Part. In addition, any replacement part when
incorporated or installed in or attached to the Airframe or any Engine may
be
owned by any third party, subject to a normal pooling arrangement, so long
as
the
Owner or a Permitted Lessee, at its own cost and expense, as promptly thereafter
as reasonably possible, either (i) causes such replacement part to become
subject to the Lien of this Trust Indenture, free and clear of all Liens except
Permitted Liens, at which time such replacement part shall become a Part or
(ii)
replaces (or causes to be replaced) such replacement part by incorporating
or
installing in or attaching to the Aircraft, Airframe or any Engine a further
replacement part owned by the Owner free and clear of all Liens except Permitted
Liens and which shall become subject to the Lien of this Trust Indenture in
accordance with Section 4.04(b).
(d) Alterations,
Modifications and Additions.
The
Owner shall, or shall cause a Permitted Lessee to, make (or cause to be made)
alterations and modifications in and additions to the Aircraft, Airframe and
each Engine as may be required to be made from time to time to meet the
applicable standards of the FAA or other Aviation Authority having jurisdiction
over the operation of the Aircraft, to the extent made mandatory in respect
of
the Aircraft (a “Mandatory Modification”); provided however,
that
the Owner or a Permitted Lessee may, in good faith and by appropriate procedure,
contest the validity or application of any law, rule, regulation or order in
any
reasonable manner which does not materially adversely affect Mortgagee’s
interest in the Aircraft, does not impair the Mortgagee’s security interest in
the Aircraft and does not involve any material risk of sale, forfeiture or
loss
of the Aircraft or the interest of Mortgagee therein, or any material risk
of
material civil penalty or any material risk of criminal liability being imposed
on Mortgagee or the holder of any Equipment Note. In addition, the Owner, at
its
own expense, may, or may permit a Permitted Lessee at its own cost and expense
to, from time to time make or cause to be made such alterations and
modifications in and additions to the Airframe or any Engine (each an “Optional
Modification”) as the Owner or such Permitted Lessee may deem desirable in the
proper conduct of its business including, without limitation, removal of Parts
which Owner deems are obsolete or no longer suitable or appropriate for use
in
the Aircraft, Airframe or such Engine; provided,
however,
that no
such Optional Modification shall (i) materially diminish the fair market
value, utility, or useful life of the Aircraft or any Engine below its fair
market value, utility or useful life immediately prior to such Optional
Modification (assuming the Aircraft or such Engine was in the condition required
by this Trust Indenture immediately prior to such Optional Modification) or
(ii) cause the Aircraft to cease to have the applicable standard
certificate of airworthiness except
that such certificate of airworthiness temporarily may be replaced by an
experimental certificate during the process of implementing and testing such
Optional Modification and securing related FAA re-certification of the
Aircraft.
All
Parts incorporated or installed in or attached to any Airframe or any Engine
as
the result of any alteration, modification or addition effected by the Owner
shall be free and clear of any Liens except Permitted Liens and become subject
to the Lien of this Trust Indenture; provided
that the
Owner or any Permitted Lessee may, at any time so long as the Airframe or any
Engine is subject to the Lien of this Trust Indenture, remove any such Part
(such Part being referred to herein as a “Removable
Part”)
from
such Airframe or an Engine if (i) such Part is in addition to, and not in
replacement of or in substitution for, any Part originally incorporated or
installed in or attached to such Airframe or any Engine at the time of delivery
thereof hereunder or any Part in replacement of, or in substitution for, any
such original Part, (ii) such Part is not required to be incorporated or
installed in or attached or added to such Airframe or any Engine pursuant to
the
terms of Section 4.02(d) or the first sentence of this Section 4.04(d) and
(iii)
such Part can be removed from such Airframe or any Engine without materially
diminishing
the fair market value, utility or remaining useful life which such Airframe
or
any Engine would have had at the time of removal had such removal not been
effected by the Owner, assuming the Aircraft was otherwise maintained in the
condition required by this Trust Indenture and such Removable Part had not
been
incorporated or installed in or attached to the Aircraft, Airframe or such
Engine. Upon the removal by the Owner of any such Part as above provided, title
thereto shall, without further act, be free and clear of all rights of the
Mortgagee and such Part shall no longer be deemed a Part hereunder. Removable
Parts may be leased from or financed by third parties other than
Mortgagee.
(e) Substitution
of Engines.
Upon
the occurrence of an Event of Loss with respect to an Engine under circumstances
in which an Event of Loss with respect to the Airframe has not occurred, Owner
shall promptly (and in any event within 15 days after such occurrence) give
the
Mortgagee written notice of such Event of Loss. The Owner shall have the right
at its option at any time, on at least 5 Business Days’ prior notice to the
Mortgagee, to substitute, and if an Event of Loss shall have occurred with
respect to an Engine under circumstances in which an Event of Loss with respect
to the Airframe has not occurred, shall within 60 days of the occurrence of
such
Event of Loss substitute, a Replacement Engine for any Engine. In such event,
immediately upon the effectiveness of such substitution and without further
act,
(i) the replaced Engine shall thereupon be free and clear of all rights of
the Mortgagee and the Lien of this Trust Indenture and shall no longer be deemed
an Engine hereunder and (ii) such Replacement Engine shall become subject to
this Trust Indenture and be deemed part of the Aircraft for all purposes hereof
to the same extent as the replaced Engine. Such Replacement Engine shall be
an
engine manufactured by Engine Manufacturer that is the same model as the Engine
to be replaced thereby, or an improved model, and that is suitable for
installation and use on the Airframe, and that has a value, utility and
remaining useful life (without regard to hours and cycles remaining until
overhaul) at least equal to the Engine to be replaced thereby (assuming that
such Engine had been maintained in accordance with this Trust Indenture). The
Owner’s right to make a replacement hereunder shall be subject to the
fulfillment (which may be simultaneous with such replacement) of the following
conditions precedent at the Owner’s sole cost and expense, and the Mortgagee
agrees to cooperate with the Owner to the extent necessary to enable it to
timely satisfy such conditions:
(i) an
executed counterpart of each of the following documents shall be delivered
to
the Mortgagee:
(A) a
Trust
Indenture Supplement covering the Replacement Engine, which shall have been
duly
filed for recordation pursuant to the Act or such other applicable law of the
jurisdiction other than the United States in which the Aircraft of which such
Engine is a part is registered in accordance with Section 4.02(e), as the case
may be;
(B) a
full
warranty bill of sale (as to title), covering the Replacement Engine, executed
by the former owner thereof in favor of the Owner (or, at the Owner’s option,
other evidence of the Owner’s ownership of such Replacement Engine, reasonably
satisfactory to the Mortgagee); and
(C) UCC
financing statements covering the security interests created by this Trust
Indenture (or any similar statements or other documents required to be filed
or
delivered pursuant to the laws of the jurisdiction in which such Aircraft may
be
registered) as are deemed necessary or desirable by counsel for the Mortgagee
to
protect the security interests of the Mortgagee in the Replacement Engine;
(ii) the
Owner
shall cause to be delivered to the Mortgagee an opinion of counsel to the effect
that the Lien of this Trust Indenture continues to be in full force and effect
with respect to the Replacement Engine and such evidence of compliance with
the
insurance provisions of Section 4.06 with respect to such Replacement
Engine as Mortgagee shall reasonably request;
(iii) the
Owner
shall have furnished to Mortgagee an opinion of Owner’s aviation law counsel
reasonably satisfactory to Mortgagee and addressed to Mortgagee as to the due
filing for recordation of the Trust Indenture Supplement with respect to such
Replacement Engine under the Act or such other applicable law of the
jurisdiction other than the United States in which the Aircraft is registered
in
accordance with Section 4.02(e), as the case may be, and the registration
with the International Registry of the sale to Owner of such Replacement Engine
(if occurring after February 28, 2006) and the International Interest granted
under such Trust Indenture Supplement with respect to such Replacement Engine;
and
(iv) the
Owner
shall have furnished to Mortgagee a certificate of a qualified aircraft engineer
(who may be an employee of Owner) certifying that such Replacement Engine has
a
value and utility and remaining useful life (without regard to hours and cycles
remaining until overhaul) at least equal to the Engine so replaced (assuming
that such Engine had been maintained in accordance with this Trust
Indenture).
Upon
satisfaction of all conditions to such substitution, (x) the Mortgagee shall
execute and deliver to the Owner such documents and instruments, prepared at
the
Owner’s expense, as the Owner shall reasonably request to evidence the release
of such replaced Engine from the Lien of this Trust Indenture, (y) the Mortgagee
shall assign to the Owner all claims it may have against any other Person
relating to any Event of Loss giving rise to such substitution and (z) the
Owner
shall receive all insurance proceeds (other than those reserved to others under
Section 4.06(b)) and proceeds in respect of any Event of Loss giving rise to
such replacement to the extent not previously applied to the purchase price
of
the Replacement Engine as provided in Section 4.05(d).
SECTION
4.05. Loss, Destruction or
Requisition
(a) Event
of Loss With Respect to the Airframe.
Upon
the occurrence of an Event of Loss with respect to the Airframe, the Owner
shall
promptly (and in any event within 15 days after such occurrence) give the
Mortgagee written notice of such Event of Loss. The Owner shall, within 45
days
after such occurrence, give the Mortgagee written notice of Owner’s election to
either replace the Airframe as provided under Section 4.05(a)(i) or to make
payment in respect of such Event of Loss as provided under Section 4.05(a)(ii)
(it being agreed
that
if
Owner shall not have given the Mortgagee such notice of such election within
the
above specified time period, the Owner shall be deemed to have elected to make
payment in respect of such Event of Loss as provided under Section
4.05(a)(ii)):
(i) if
Owner
elects to replace the Airframe, Owner shall, subject to the satisfaction of
the
conditions contained in Section 4.05(c), as promptly as possible and in any
event within 120 days after the occurrence of such Event of Loss, cause to
be
subjected to the Lien of this Trust Indenture, in replacement of the Airframe
with respect to which the Event of Loss occurred, a Replacement Airframe and,
if
any Engine shall have been installed on the Airframe when it suffered the Event
of Loss, a Replacement Engine therefor, such Replacement Airframe and
Replacement Engines to be free and clear of all Liens except Permitted Liens
and
to have a value, utility and remaining useful life (without regard to hours
or
cycles remaining until the next regular maintenance check) at least equal to
the
Airframe or Engine, as the case may be, to be replaced thereby (assuming that
such Airframe or Engine had been maintained in accordance with this Trust
Indenture); provided that
if the
Owner shall not perform its obligation to effect such replacement under this
clause (i) during the 120-day period of time provided herein, it shall pay
the
amounts required to be paid pursuant to and within the time frame specified
in
clause (ii) below; or
(ii) if
Owner
elects to make a payment in respect of such Event of Loss of the Airframe,
Owner
shall make a payment to the Mortgagee for purposes of redeeming Equipment Notes
in accordance with Section 2.10 hereof on a date on or before the Business
Day
next following the earlier of (x) the 120th day following the date of the
occurrence of such Event of Loss, and (y) the fourth Business Day following
the
receipt of insurance proceeds with respect to such Event of Loss (but in any
event not earlier than the date of Owner’s election under Section 4.05(a) to
make payment under this Section 4.05 (a)(ii)); and upon such payment and payment
of all other Secured Obligations then due and payable, the Mortgagee shall,
at
the cost and expense of the Owner, release from the Lien of this Trust Indenture
the Airframe and the Engines, by executing and delivering to the Owner all
documents and instruments as the Owner may reasonably request to evidence such
release.
(b) Effect
of Replacement.
Should
the Owner have provided a Replacement Airframe and Replacement Engines, if
any,
as provided for in Section 4.05(a)(i), (i) the Lien of this Trust Indenture
shall continue with respect to such Replacement Airframe and Replacement
Engines, if any, as though no Event of Loss had occurred; (ii) the Mortgagee
shall, at the cost and expense of the Owner, release from the Lien of this
Trust
Indenture the replaced Airframe and Engines, if any, by executing and delivering
to the Owner such documents and instruments as the Owner may reasonably request
to evidence such release; and (iii) in the case of a replacement upon an Event
of Loss, the Mortgagee shall assign to the Owner all claims the Mortgagee may
have against any other Person arising from the Event of Loss and the Owner
shall
receive all insurance proceeds (other than those reserved to others under
Section 4.06(b)) and proceeds from any award in respect of condemnation,
confiscation, seizure or requisition, including any investment interest thereon,
to the extent not previously applied to the purchase price of the Replacement
Airframe and Replacement Engines, if any, as provided in Section
4.05(d).
(c) Conditions
to Airframe and Engine Replacement.
The
Owner’s right to substitute a Replacement Airframe and Replacement Engines, if
any, as provided in Section 4.05(a)(i) shall be subject to the fulfillment,
at
the Owner’s sole cost and expense, in addition to the conditions contained in
such Section 4.05(a)(i), of the following conditions precedent:
(i) on
the
date when the Replacement Airframe and Replacement Engines, if any, is subjected
to the Lien of this Trust Indenture (such date being referred to in this Section
4.05 as the “Replacement Closing Date”), an executed counterpart of each of the
following documents (or, in the case of the FAA Bill of Sale and full warranty
bill of sale referred to below, a photocopy thereof) shall have been delivered
to the Mortgagee:
(A) a
Trust
Indenture Supplement covering the Replacement Airframe and Replacement Engines,
if any, which shall have been duly filed for recordation pursuant to the Act
or
such other applicable law of such jurisdiction other than the United States
in
which the Replacement Airframe and Replacement Engines, if any, are to be
registered in accordance with Section 4.02(e), as the case may be;
(B) an
FAA
Bill of Sale (or a comparable document, if any, of another Aviation Authority,
if applicable) covering the Replacement Airframe and Replacement Engines, if
any, executed by the former owner thereof in favor of the Owner;
(C) a
full
warranty (as to title) bill of sale, covering the Replacement Airframe and
Replacement Engines, if any, executed by the former owner thereof in favor
of
the Owner (or, at the Owner’s option, other evidence of the Owner’s ownership of
such Replacement Airframe and Replacement Engines, if any, reasonably
satisfactory to the Mortgagee); and
(D) UCC
financing statements (or any similar statements or other documents required
to
be filed or delivered pursuant to the laws of the jurisdiction in which the
Replacement Airframe and Replacement Engines, if any, may be registered in
accordance with Section 4.02(e)) as are deemed necessary or desirable by counsel
for the Mortgagee to protect the security interests of the Mortgagee in the
Replacement Airframe and Replacement Engines, if any;
(ii) the
Replacement Airframe and Replacement Engines, if any, shall be of the same
model
as the Airframe or Engines, as the case may be, or an improved model of such
aircraft or engines of the manufacturer thereof, shall have a value and utility
(without regard to hours or cycles remaining until the next regular maintenance
check) at least equal to, and be in as good operating condition and repair
as,
the Airframe and any Engines replaced (assuming such Airframe and Engines had
been maintained in accordance with this Trust Indenture);
(iii) the
Mortgagee (acting directly or by authorization to its special counsel) shall
have received satisfactory evidence as to the compliance with Section 4.06
with
respect to the Replacement Airframe and Replacement Engines, if
any;
(iv) on
the
Replacement Closing Date, (A) the Owner shall cause the Replacement Airframe
and
Replacement Engines, if any, to be subject to the Lien of this Trust Indenture
free and clear of Liens (other than Permitted Liens), (B) the Replacement
Airframe shall have been duly certified by the FAA as to type and airworthiness
in accordance with the terms of this Trust Indenture, (C) application for
registration of the Replacement Airframe in accordance with Section 4.02(e)
shall have been duly made with the FAA or other applicable Aviation Authority
and the Owner shall have authority to operate the Replacement Airframe and
(D) the Owner shall have caused the sale of such Replacement Airframe and
Replacement Engine(s), if any, to the Owner (if occurring after
February 28, 2006) and the International Interest granted under the Trust
Indenture Supplement in favor of the Mortgagee with respect to such Replacement
Airframe and Replacement Engine(s), if any, each to be registered on the
International Registry as a sale or an International Interest, respectively;
(v) the
Mortgagee at the expense of the Owner, shall have received (acting directly
or
by authorization to its special counsel) (A) an opinion of counsel, addressed
to
the Mortgagee, to the effect that the Replacement Airframe and Replacement
Engine, if any, has or have duly been made subject to the Lien of this Trust
Indenture, and Mortgagee will be entitled to the benefits of Section 1110
with respect to the Replacement Airframe, provided that such opinion with
respect to Section 1110 need not be delivered to the extent that immediately
prior to such replacement the benefits of Section 1110 were not, solely by
reason of a change in law or court interpretation thereof, available to
Mortgagee, and (B) an opinion of Owner’s aviation law counsel reasonably
satisfactory to and addressed to Mortgagee as to the due registration of any
such Replacement Airframe and the due filing for recordation of each Trust
Indenture Supplement with respect to such Replacement Airframe or Replacement
Engine under the Act or such other applicable law of the jurisdiction other
than
the United States in which the Replacement Airframe is to be registered in
accordance with Section 4.02(e), as the case may be, and the registration
with the International Registry of the sale of such Replacement Airframe and
Replacement Engine(s), if any, to the Owner (if occurring after
February 28, 2006) and of the International Interest granted under the
Trust Indenture Supplement with respect to such Replacement Aircraft and
Replacement Engine(s), if any; and
(vi) the
Owner
shall have furnished to the Mortgagee a certificate of a qualified aircraft
engineer (who may be an employee of Owner) certifying that the Replacement
Airframe and Replacement Engines, if any, have a value and utility and remaining
useful life (without regard to hours and cycles remaining until overhaul) at
least equal to the Airframe and any Engines so replaced (assuming that such
Airframe and Engines had been maintained in accordance with this Trust
Indenture).
(d) Non-Insurance
Payments Received on Account of an Event of Loss.
Any
amounts, other than insurance proceeds in respect of damage or loss not
constituting an Event of Loss (the application of which is provided for in
Annex B), received at any time by Mortgagee or Owner from any Government
Entity or any other Person in respect of any Event of Loss will be applied
as
follows:
(i) If
such
amounts are received with respect to the Airframe, and any Engine installed
thereon at the time of such Event of Loss, upon compliance by
Owner
with the applicable terms of Section 4.05(c) with respect to the Event of
Loss for which such amounts are received, such amounts shall be paid over to,
or
retained by, Owner;
(ii) If
such
amounts are received with respect to an Engine (other than an Engine installed
on the Airframe at the time such Airframe suffers an Event of Loss), upon
compliance by Owner with the applicable terms of Section 4.04(e) with
respect to the Event of Loss for which such amounts are received, such amounts
shall be paid over to, or retained by, Owner;
(iii) If
such
amounts are received, in whole or in part, with respect to the Airframe, and
Owner makes, has made or is deemed to have made the election set forth in
Section 4.05(a)(ii), such amounts shall be applied as follows:
first,
if the
sum described in Section 4.05(a)(ii) has not then been paid in full by
Owner, such amounts shall be paid to Mortgagee to the extent necessary to pay
in
full such sum; and
second,
the
remainder, if any, shall be paid to Owner.
(e) Requisition
for Use.
In the
event of a requisition for use by any Government Entity of the Airframe and
the
Engines, if any, or engines installed on such Airframe while such Airframe
is
subject to the Lien of this Trust Indenture, the Owner shall promptly notify
the
Mortgagee of such requisition and all of the Owner’s obligations under this
Trust Indenture shall continue to the same extent as if such requisition had
not
occurred except to the extent that the performance or observance of any
obligation by the Owner shall have been prevented or delayed by such
requisition; provided that
the
Owner’s obligations under this Section 4.05 with respect to the occurrence of an
Event of Loss for the payment of money and under Section 4.06 (except while
an
assumption of liability by the U.S. Government of the scope referred to in
Section 4.02(c) is in effect) shall not be reduced or delayed by such
requisition. Any payments received by the Mortgagee or the Owner or Permitted
Lessee from such Government Entity with respect to such requisition of use
shall
be paid over to, or retained by, the Owner. In the event of an Event of Loss
of
an Engine resulting from the requisition for use by a Government Entity of
such
Engine (but not the Airframe), the Owner will replace such Engine hereunder
by
complying with the terms of Section 4.04(e) and any payments received by the
Mortgagee or the Owner from such Government Entity with respect to such
requisition shall be paid over to, or retained by, the Owner.
(f) Certain
Payments to be Held As Security.
Any
amount referred to in this Section 4.05 or Section 4.06 which is payable or
creditable to, or retainable by, the Owner shall not be paid or credited to,
or
retained by the Owner if at the time of such payment, credit or retention a
Special Default or an Event of Default shall have occurred and be continuing,
but shall be paid to and held by the Mortgagee as security for the obligations
of the Owner under this Trust Indenture and the Operative Agreements, and at
such time as there shall not be continuing any such Special Default or Event
of
Default such amount and any gain realized as a result of
investments
required to be made pursuant to Section 6.06 shall to the extent not theretofore
applied as provided herein, be paid over to the Owner.
SECTION
4.06. Insurance
(a) Owner’s
Obligation to Insure.
Owner
shall comply with, or cause to be complied with, each of the provisions of
Annex B, which provisions are hereby incorporated by this reference as if
set forth in full herein.
(b) Insurance
for Own Account.
Nothing
in Section 4.06 shall limit or prohibit (a) Owner from maintaining the policies
of insurance required under Annex B with higher limits than those specified
in
Annex B, or (b) Mortgagee from obtaining insurance for its own account (and
any proceeds payable under such separate insurance shall be payable as provided
in the policy relating thereto); provided,
however,
that no
insurance may be obtained or maintained that would limit or otherwise adversely
affect the coverage of any insurance required to be obtained or maintained
by
Owner pursuant to this Section 4.06 and Annex B.
(c) Indemnification
by Government in Lieu of Insurance.
Mortgagee agrees to accept, in lieu of insurance against any risk with respect
to the Aircraft described in Annex B, indemnification from, or insurance
provided by, the U.S. Government, or upon the written consent of Mortgagee,
other Government Entity, against such risk in an amount that, when added to
the
amount of insurance (including permitted self-insurance), if any, against such
risk that Owner (or any Permitted Lessee) may continue to maintain, in
accordance with this Section 4.06, during the period of such requisition or
transfer, shall be at least equal to the amount of insurance against such risk
otherwise required by this Section 4.06.
(d) Application
of Insurance Proceeds.
As
between Owner and Mortgagee, all insurance proceeds received as a result of
the
occurrence of an Event of Loss with respect to the Aircraft or any Engine under
policies required to be maintained by Owner pursuant to this Section 4.06
will be applied in accordance with Section 4.05(d). All proceeds of
insurance required to be maintained by Owner, in accordance with
Section 4.06 and Section B of Annex B, in respect of any property
damage or loss not constituting an Event of Loss with respect to the Aircraft,
Airframe or any Engine will be applied in payment (or to reimburse Owner) for
repairs or for replacement property, and any balance remaining after such
repairs or replacement with respect to such damage or loss shall be paid over
to, or retained by, Owner.
SECTION
4.07. Merger of
Owner
(a) In
General.
Owner
shall not consolidate with or merge into any other person under circumstances
in
which Owner is not the surviving corporation, or convey, transfer or lease
in
one or more transactions all or substantially all of its assets to any other
person, unless:
(i) such
person is organized, existing and in good standing under the Laws of the United
States, any State of the United States or the District of Columbia and, upon
consummation of such transaction, such person will be a U.S. Air
Carrier;
(ii) such
person executes and delivers to Mortgagee a duly authorized, legal, valid,
binding and enforceable agreement, reasonably satisfactory in form and substance
to Mortgagee, containing an effective assumption by such person of the due
and
punctual performance and observance of each covenant, agreement and condition
in
the Operative Agreements to be performed or observed by Owner;
(iii) if
the
Aircraft is, at the time, registered with the FAA, such person makes such
filings and recordings with the FAA pursuant to the Act or if the Aircraft
is,
at the time, not registered with FAA, such person makes such filings and
recordings with the applicable Aviation Authority as shall be necessary to
evidence such consolidation or merger; and
(iv) immediately
after giving effect to such consolidation or merger no Event of Default shall
have occurred and be continuing.
(b) Effect
of Merger.
Upon
any such consolidation or merger of Owner with or into, or the conveyance,
transfer or lease by Owner of all or substantially all of its assets to, any
Person in accordance with this Section 4.07, such Person will succeed to,
and be substituted for, and may exercise every right and power of, Owner under
the Operative Agreements with the same effect as if such person had been named
as “Owner” therein. No such consolidation or merger, or conveyance, transfer or
lease, shall have the effect of releasing Owner or such Person from any of
the
obligations, liabilities, covenants or undertakings of Owner under the Trust
Indenture.
SECTION
4.08 Claim for Related Secured
Obligations
If
any
Related Secured Obligation shall have become due and remains unpaid at any
time
after the date that is 180 days prior to the Final Maturity Date, the
Subordination Agent shall have the right, at any time from and after such
180th
day to
and including the 90th
day
after the Final Maturity Date, to give written notice to Owner specifying the
amount of such Related Secured Obligation so due and unpaid (separately
identifying the portions thereof comprised of “Original Amount”, interest or
other obligation and each agreement under which such amounts are due) (provided
that the failure to give such notice shall not affect any of the Mortgagee’s or
any Indenture Indemnitee’s rights under this Trust Indenture) and if (a) such
notice has been given, (b) such Related Secured Obligation remains unpaid at
the
Final Maturity Date and (c) any portion of the Collateral is then subject to
the
Lien of this Trust Indenture, then, notwithstanding that no Event of Default
shall have then occurred and be continuing, the Owner shall, on the later of
(x)
the date that is 90 days after receipt of such notice and (y) the Final Maturity
Date, either (i) pay the amount of such Related Secured Obligations that
are due and unpaid to the Mortgagee, which shall be distributed in accordance
with Section 3.03 or (ii) give to the Mortgagee its irrevocable written
consent to (and thereafter permit) the exercise of remedies against the
Collateral or any part thereof by the Mortgagee in the same manner and with
the
same rights as specified in Article V as if an Event of Default shall have
then
occurred and be continuing (and any proceeds of the exercise of such remedies
shall be distributed in accordance with Section 3.03), and the Mortgagee shall
act at the direction of the Subordination Agent in the exercise of any such
remedies. Notwithstanding the foregoing, if at any time an
Event
of
Loss with respect to the Aircraft, the Airframe or any Engine shall have
occurred, the Mortgagee’s rights to exercise remedies pursuant to the preceding
sentence with respect to such item of equipment suffering such Event of Loss
shall terminate, such item of equipment (and any insurance, requisition or
similar proceeds relating thereto) shall be released from the Lien of this
Trust
Indenture and Owner shall have no obligation to make a payment or provide a
replacement item of equipment as a result of such Event of Loss (it being
understood that (i) this sentence shall not affect Owner’s obligations with
respect to such Event of Loss if the Original Amount of the Equipment Notes
and
accrued interest thereon shall have not been paid in full and (ii) if the Owner
shall replace any such item of equipment in accordance with this Trust
Indenture, then this sentence will not apply to the replacement item of
equipment unless it shall subsequently suffer an Event of Loss).
EVENTS
OF DEFAULT; REMEDIES OF MORTGAGEE
SECTION
5.01. Event of
Default
“Event
of
Default” means any of the following events (whatever the reason for such Event
of Default and whether such event shall be voluntary or involuntary or come
about or be effected by operation of Law or pursuant to or in compliance with
any judgment, decree or order of any court or any order, rule or regulation
of
any administrative or governmental body):
(i) the
failure of the Owner to pay (i) principal of, interest on or Make-Whole Amount,
if any, under any Equipment Note when due, and such failure shall continue
unremedied for a period of 10 Business Days, or (ii) any other amount payable
by
it to the Note Holders under this Trust Indenture or the Participation Agreement
when due, and such failure shall continue for a period in excess of 10 Business
Days after Owner has received written notice from Mortgagee of the failure
to
make such payment when due;
(ii) Owner
shall fail to carry and maintain, or cause to be carried and maintained,
insurance on and in respect of the Aircraft, Airframe and Engines in accordance
with the provisions of Section 4.06;
(iii) Owner
shall fail to observe or perform (or caused to be observed and performed) in
any
material respect any other covenant, agreement or obligation set forth herein
or
in any other Operative Agreement to which Owner is a party and such failure
shall continue unremedied for a period of 30 days from and after the date of
written notice thereof to Owner from Mortgagee, unless such failure is capable
of being corrected and Owner shall be diligently proceeding to correct such
failure, in which case there shall be no Event of Default unless and until
such
failure shall continue unremedied for a period of 270 days after receipt of
such notice;
(iv) any
representation or warranty made by Owner herein, in the Participation Agreement
or in any other Operative Agreement to which Owner is a party (a) shall
prove to have been untrue or inaccurate in any material respect as of the date
made, (b) such untrue or inaccurate representation or warranty is material
at the time in question,
(c) and
the same shall remain uncured (to the extent of the adverse impact of such
incorrectness on the interest of the Mortgagee) for a period in excess of 30
days from and after the date of written notice thereof from Mortgagee to
Owner;
(v) the
Owner
shall consent to the appointment of or taking possession by a receiver, trustee
or liquidator of itself or of a substantial part of its property, or the Owner
shall admit in writing its inability to pay its debts generally as they come
due
or shall make a general assignment for the benefit of its creditors, or the
Owner shall file a voluntary petition in bankruptcy or a voluntary petition
or
an answer seeking reorganization, liquidation or other relief under any
bankruptcy laws or insolvency laws (as in effect at such time), or an answer
admitting the material allegations of a petition filed against it in any such
case, or the Owner shall seek relief by voluntary petition, answer or consent,
under the provisions of any other bankruptcy or similar law providing for the
reorganization or winding-up of corporations (as in effect at such time), or
the
Owner shall seek an agreement, composition, extension or adjustment with its
creditors under such laws or the Owner’s board of directors shall adopt a
resolution authorizing corporate action in furtherance of any of the
foregoing;
(vi) an
order,
judgment or decree shall be entered by any court of competent jurisdiction
appointing, without the consent of the Owner, a receiver, trustee or liquidator
of the Owner or of any substantial part of its property, or any substantial
part
of the property of the Owner shall be sequestered, or granting any other relief
in respect of the Owner as a debtor under any bankruptcy laws or other
insolvency laws (as in effect at such time), and any such order, judgment,
decree, or decree of appointment or sequestration shall remain in force
undismissed, unstayed or unvacated for a period of 90 days after the date of
entry thereof; or
(vii) a
petition against the Owner in a proceeding under any bankruptcy laws or other
insolvency laws (as in effect at such time) is filed and not withdrawn or
dismissed within 90 days thereafter, or if, under the provisions of any law
providing for reorganization or winding-up of corporations which may apply
to
the Owner, any court of competent jurisdiction shall assume jurisdiction,
custody or control of the Owner of any substantial part of its property and
such
jurisdiction, custody or control shall remain in force unrelinquished, unstayed
or unterminated for a period of 90 days.
SECTION
5.02. Remedies
(a) If
an
Event of Default shall have occurred and
be
continuing and so long as the same shall continue unremedied, then and in every
such case the Mortgagee may exercise any or all of the rights and powers and
pursue any and all of the remedies pursuant to this Article V and shall have
and
may exercise all of the rights and remedies of a secured party under the Uniform
Commercial Code or of a chargee under the Cape Town Treaty and may take
possession of all or any part of the properties covered or intended to be
covered by the Lien created hereby or pursuant hereto and may exclude the Owner
and all persons claiming under it wholly or partly therefrom; provided,
that
the Mortgagee shall give the Owner twenty days’ prior written notice of its
intention to sell the Aircraft. Without limiting any of the foregoing, it is
understood and agreed that the Mortgagee may exercise any right of sale of
the
Aircraft available
to
it,
even though it shall not have taken possession of the Aircraft and shall not
have possession thereof at the time of such sale.
(b) If
an
Event of Default shall have occurred and be continuing, then and in every such
case the Mortgagee may (and shall, upon receipt of a written demand therefor
from a Majority in Interest of Note Holders), at any time, by delivery of
written notice or notices to the Owner, declare all the Equipment Notes to
be
due and payable, whereupon the unpaid Original Amount of all Equipment Notes
then outstanding, together with accrued but unpaid interest thereon (without
Make-Whole Amount) and other amounts due thereunder or otherwise payable
hereunder, shall immediately become due and payable without presentment, demand,
protest or notice, all of which are hereby waived; provided that if an Event
of
Default referred to in clause (v), (vi) or (vii) of Section 5.01 hereof shall
have occurred, then and in every such case the unpaid Original Amount then
outstanding, together with accrued but unpaid interest (without Make-Whole
Amount) and all other amounts due hereunder and under the Equipment Notes shall
immediately and without further act become due and payable without presentment,
demand, protest or notice, all of which are hereby waived.
This
Section 5.02(b), however, is subject to the condition that, if at any time
after
the Original Amount of the Equipment Notes shall have become so due and payable,
and before any judgment or decree for the payment of the money so due, or any
thereof, shall be entered, all overdue payments of interest upon the Equipment
Notes and all other amounts payable hereunder or under the Equipment Notes
(except the Original Amount of the Equipment Notes and any Make-Whole Amount
which by such declaration shall have become payable) shall have been duly paid,
and every other Default and Event of Default with respect to any covenant or
provision of this Trust Indenture shall have been cured, then and in every
such
case a Majority in Interest of Note Holders may (but shall not be obligated
to),
by written instrument filed with the Mortgagee, rescind and annul the
Mortgagee’s declaration (or such automatic acceleration) and its consequences;
but no such rescission or annulment shall extend to or affect any subsequent
Default or Event of Default or impair any right consequent thereon.
(c) The
Note
Holders shall be entitled, at any sale pursuant to this Section 5.02, to credit
against any purchase price bid at such sale by such holder all or any part
of
the unpaid obligations owing to such Note Holder and secured by the Lien of
this
Trust Indenture (only to the extent that such purchase price would have been
paid to such Note Holder pursuant to Article III hereof if such purchase price
were paid in cash and the foregoing provisions of this subsection (c) were
not
given effect).
(d) In
the
event of any sale of the Collateral, or any part thereof, pursuant to any
judgment or decree of any court or otherwise in connection with the enforcement
of any of the terms of this Trust Indenture, the unpaid Original Amount of
all
Equipment Notes then outstanding, together with accrued interest thereon
(without Make-Whole Amount), and other amounts due thereunder, shall immediately
become due and payable without presentment, demand, protest or notice, all
of
which are hereby waived.
(e) Notwithstanding
anything contained herein, (i) so long as the Pass Through Trustee under any
Pass Through Trust Agreement (or its designee) is a Note Holder, the
Mortgagee
will not be authorized or empowered to acquire title to any Collateral or take
any action with respect to any Collateral so acquired by it if such acquisition
or action would cause any Trust to fail to qualify as a “grantor trust” for
federal income tax purposes, and (ii) the Mortgagee will not take any action
that would violate Sections 4.1(a)(ii) or 4.1(a)(iii) of the Intercreditor
Agreement.
SECTION
5.03. Return of Aircraft,
Etc.
(a) If
an
Event of Default shall have occurred and be continuing and the Equipment Notes
have been accelerated, at the request of the Mortgagee, the Owner shall promptly
execute and deliver to the Mortgagee such instruments of title and other
documents as the Mortgagee may deem necessary or advisable to enable the
Mortgagee or an agent or representative designated by the Mortgagee, at such
time or times and place or places as the Mortgagee may specify, to obtain
possession of all or any part of the Collateral to which the Mortgagee shall
at
the time be entitled hereunder. If the Owner shall for any reason fail to
execute and deliver such instruments and documents after such request by the
Mortgagee, the Mortgagee may (i) obtain a judgment conferring on the Mortgagee
the right to immediate possession and requiring the Owner to execute and deliver
such instruments and documents to the Mortgagee, to the entry of which judgment
the Owner hereby specifically consents to the fullest extent permitted by Law,
and (ii) pursue all or part of such Collateral wherever it may be found and
may
enter any of the premises of Owner wherever such Collateral may be or be
supposed to be and search for such Collateral and take possession of and remove
such Collateral. All expenses of obtaining such judgment or of pursuing,
searching for and taking such property shall, until paid, be secured by the
Lien
of this Trust Indenture.
(b) Upon
every such taking of possession, the Mortgagee may, from time to time, at the
expense of the Collateral, make all such expenditures for maintenance, use,
operation, storage, insurance, leasing, control, management, disposition,
modifications or alterations to and of the Collateral, as it may deem proper.
In
each such case, the Mortgagee shall have the right to maintain, use, operate,
store, insure, lease, control, manage, dispose of, modify or alter the
Collateral and to exercise all rights and powers of the Owner relating to the
Collateral, as the Mortgagee shall deem best, including the right to enter
into
any and all such agreements with respect to the maintenance, use, operation,
storage, insurance, leasing, control, management, disposition, modification
or
alteration of the Collateral or any part thereof as the Mortgagee may determine,
and the Mortgagee shall be entitled to collect and receive directly all rents,
revenues and other proceeds of the Collateral and every part thereof, without
prejudice, however, to the right of the Mortgagee under any provision of this
Trust Indenture to collect and receive all cash held by, or required to be
deposited with, the Mortgagee hereunder. Such rents, revenues and other proceeds
shall be applied to pay the expenses of the maintenance, use, operation,
storage, insurance, leasing, control, management, disposition, improvement,
modification or alteration of the Collateral and of conducting the business
thereof, and to make all payments which the Mortgagee may be required or may
elect to make, if any, for taxes, assessments, insurance or other proper charges
upon the Collateral or any part thereof (including the employment of engineers
and accountants to examine, inspect and make reports upon the properties and
books and records of the Owner), and all other payments which the Mortgagee
may
be required or authorized to make under any provision of this Trust Indenture,
as well as
just
and
reasonable compensation for the services of the Mortgagee, and of all persons
properly engaged and employed by the Mortgagee with respect hereto.
SECTION
5.04. Remedies
Cumulative
Each
and
every right, power and remedy given to the Mortgagee specifically or otherwise
in this Trust Indenture shall be cumulative and shall be in addition to every
other right, power and remedy herein specifically given or now or hereafter
existing at Law, in equity or by statute, and each and every right, power and
remedy whether specifically herein given or otherwise existing may be exercised
from time to time and as often and in such order as may be deemed expedient
by
the Mortgagee, and the exercise or the beginning of the exercise of any power
or
remedy shall not be construed to be a waiver of the right to exercise at the
same time or thereafter any other right, power or remedy. No delay or omission
by the Mortgagee in the exercise of any right, remedy or power or in the
pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the Owner or to be an
acquiescence therein.
SECTION
5.05. Discontinuance of
Proceedings
In
case
the Mortgagee shall have instituted any proceeding to enforce any right, power
or remedy under this Trust Indenture by foreclosure, entry or otherwise, and
such proceedings shall have been discontinued or abandoned for any reason or
shall have been determined adversely to the Mortgagee, then and in every such
case the Owner and the Mortgagee shall, subject to any determination in such
proceedings, be restored to their former positions and rights hereunder with
respect to the Collateral, and all rights, remedies and powers of the Owner
or
the Mortgagee shall continue as if no such proceedings had been
instituted.
SECTION
5.06. Waiver of Past
Defaults
Upon
written instruction from a Majority in Interest of Note Holders, the Mortgagee
shall waive any past Default hereunder and its consequences and upon any such
waiver such Default shall cease to exist and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this Trust
Indenture, but no such waiver shall extend to any subsequent or other Default
or
impair any right consequent thereon; provided, that in the absence of written
instructions from all the Note Holders, the Mortgagee shall not waive any
Default (i) in the payment of the Original Amount, Make-Whole Amount, if any,
and interest and other amounts due under any Equipment Note then outstanding,
or
(ii) in respect of a covenant or provision hereof which, under Article X hereof,
cannot be modified or amended without the consent of each Note
Holder.
SECTION
5.07. Appointment of
Receiver
The
Mortgagee shall, as a matter of right, be entitled to the appointment of a
receiver (who may be the Mortgagee or any successor or nominee thereof) for
all
or any part of the Collateral, whether such receivership be incidental to a
proposed sale of the Collateral or the taking of possession thereof or
otherwise, and the Owner hereby consents to the appointment of such a receiver
and will not oppose any such appointment. Any receiver appointed for all or
any
part
of
the Collateral shall be entitled to exercise all the rights and powers of the
Mortgagee with respect to the Collateral.
SECTION
5.08. Mortgagee Authorized to Execute
Bills of Sale, Etc.
The
Owner
irrevocably appoints, while an Event of Default has occurred and is continuing,
the Mortgagee the true and lawful attorney-in-fact of the Owner (which
appointment is coupled with an interest) in its name and stead and on its
behalf, for the purpose of effectuating any sale, assignment, transfer or
delivery for the enforcement of the Lien of this Trust Indenture, whether
pursuant to foreclosure or power of sale, assignments and other instruments
as
may be necessary or appropriate, with full power of substitution, the Owner
hereby ratifying and confirming all that such attorney or any substitute shall
do by virtue hereof in accordance with applicable law. Nevertheless, if so
requested by the Mortgagee or any purchaser, the Owner shall ratify and confirm
any such sale, assignment, transfer or delivery, by executing and delivering
to
the Mortgagee or such purchaser all bills of sale, assignments, releases and
other proper instruments to effect such ratification and confirmation as may
be
designated in any such request.
SECTION
5.09. Rights of Note Holders to Receive
Payment
Notwithstanding
any other provision of this Trust Indenture, the right of any Note Holder to
receive payment of principal of, and premium, if any, and interest on an
Equipment Note on or after the respective due dates expressed in such Equipment
Note, or to bring suit for the enforcement of any such payment on or after
such
respective dates in accordance with the terms hereof, shall not be impaired
or
affected without the consent of such Note Holder.
DUTIES
OF THE MORTGAGEE
SECTION
6.01. Notice of Event of
Default
If
the
Mortgagee shall have Actual Knowledge of an Event of Default or of a Default
arising from a failure to pay any installment of principal and interest on
any
Equipment Note, the Mortgagee shall give prompt written notice thereof to each
Note Holder. Subject to the terms of Sections 5.06, 6.02 and 6.03 hereof, the
Mortgagee shall take such action, or refrain from taking such action, with
respect to such Event of Default or Default (including with respect to the
exercise of any rights or remedies hereunder) as the Mortgagee shall be
instructed in writing by a Majority in Interest of Note Holders. Subject to
the
provisions of Section 6.03, if the Mortgagee shall not have received
instructions as above provided within 20 days after mailing notice of such
Event
of Default to the Note Holders, the Mortgagee may, subject to instructions
thereafter received pursuant to the preceding provisions of this Section 6.01,
take such action, or refrain from taking such action, but shall be under no
duty
to take or refrain from taking any action, with respect to such Event of Default
or Default as it shall determine advisable in the best interests of the Note
Holders; provided,
however,
that
the Mortgagee may not sell the Aircraft or any Engine without the consent of
a
Majority in Interest of Note Holders. For all
purposes
of this Trust Indenture, in the absence of Actual Knowledge on the part of
the
Mortgagee, the Mortgagee shall not be deemed to have knowledge of a Default
or
an Event of Default (except, the failure of Owner to pay any installment of
principal or interest within one Business Day after the same shall become due,
which failure shall constitute knowledge of a Default) unless notified in
writing by the Owner or one or more Note Holders.
SECTION
6.02. Action Upon Instructions; Certain
Rights and Limitations
Subject
to the terms of Sections 5.02(a), 5.06, 6.01 and 6.03 hereof, upon the written
instructions at any time and from time to time of a Majority in Interest of
Note
Holders, the Mortgagee shall, subject to the terms of this Section 6.02, take
such of the following actions as may be specified in such instructions: (i)
give
such notice or direction or exercise such right, remedy or power hereunder
as
shall be specified in such instructions and (ii) give such notice or direction
or exercise such right, remedy or power hereunder with respect to any part
of
the Collateral as shall be specified in such instructions; it being understood
that without the written instructions of a Majority in Interest of Note Holders,
the Mortgagee shall not, except as provided in Section 6.01, approve any
such matter as satisfactory to the Mortgagee.
The
Mortgagee will execute and the Owner will file such continuation statements
with
respect to financing statements relating to the security interest created
hereunder in the Collateral as may be specified from time to time in written
instructions of a Majority in Interest of Note Holders (which instructions
shall
be accompanied by the form of such continuation statement so to be filed).
The
Mortgagee will furnish to each Note Holder, promptly upon receipt thereof,
duplicates or copies of all reports, notices, requests, demands, certificates
and other instruments furnished to the Mortgagee hereunder.
SECTION
6.03. Indemnification
The
Mortgagee shall not be required to take any action or refrain from taking any
action under Section 6.01 (other than the first sentence thereof), 6.02 or
Article V hereof unless the Mortgagee shall have been indemnified to its
reasonable satisfaction against any liability, cost or expense (including
counsel fees) which may be incurred in connection therewith pursuant to a
written agreement with one or more Note Holders. The Mortgagee agrees that
it
shall look solely to the Note Holders for the satisfaction of any indemnity
(except expenses for foreclosure of the type referred to in clause “First” of
Section 3.03 hereof) owed to it pursuant to this Section 6.03. The Mortgagee
shall not be under any obligation to take any action under this Trust Indenture
or any other Operative Agreement and nothing herein or therein shall require
the
Mortgagee to expend or risk its own funds or otherwise incur the risk of any
financial liability in the performance of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to
it (the written indemnity of any Note Holder who is a QIB, signed by an
authorized officer thereof, in favor of, delivered to and in form reasonably
satisfactory to the Mortgagee shall be accepted as reasonable assurance of
adequate indemnity). The Mortgagee shall not be required to take any action
under Section 6.01 (other than the first sentence thereof) or 6.02 or Article
V
hereof, nor shall any other provision of this Trust Indenture or any other
Operative Agreement be deemed to impose a duty on the Mortgagee to take any
action, if the
Mortgagee
shall have been advised by counsel that such action is contrary to the terms
hereof or is otherwise contrary to Law.
SECTION
6.04. No Duties Except as Specified in
Trust Indenture or Instructions
The
Mortgagee shall not have any duty or obligation to use, operate, store, lease,
control, manage, sell, dispose of or otherwise deal with the Aircraft or any
other part of the Collateral, or to otherwise take or refrain from taking any
action under, or in connection with, this Trust Indenture or any part of the
Collateral, except as expressly provided by the terms of this Trust Indenture
or
as expressly provided in written instructions from Note Holders as provided
in
this Trust Indenture; and no implied duties or obligations shall be read into
this Trust Indenture against the Mortgagee. The Mortgagee agrees that it will
in
its individual capacity and at its own cost and expense (but without any right
of indemnity in respect of any such cost or expense under Section 8.01 hereof),
promptly take such action as may be necessary duly to discharge all liens and
encumbrances on any part of the Collateral which result from claims against
it
in its individual capacity not related to the administration of the Collateral
or any other transaction pursuant to this Trust Indenture or any document
included in the Collateral.
SECTION
6.05. No Action Except Under Trust
Indenture or Instructions
The
Mortgagee will not use, operate, store, lease, control, manage, sell, dispose
of
or otherwise deal with the Aircraft or any other part of the Collateral except
in accordance with the powers granted to, or the authority conferred upon the
Mortgagee pursuant to this Trust Indenture and in accordance with the express
terms hereof.
SECTION
6.06. Investment of Amounts Held by
Mortgagee
Any
amounts held by the Mortgagee pursuant to Section 3.02, 3.03 or 3.07 or pursuant
to any provision of any other Operative Agreement providing for amounts to
be
held by the Mortgagee which are not distributed pursuant to the other provisions
of Article III hereof shall be invested by the Mortgagee from time to time
in
Cash Equivalents as directed by the Owner so long as the Mortgagee may acquire
the same using its best efforts. All Cash Equivalents held by the Mortgagee
pursuant to this Section 6.06 shall either be (a) registered in the name of,
payable to the order of, or specially endorsed to, the Mortgagee, or (b) held
in
an Eligible Account. Unless otherwise expressly provided in this Trust
Indenture, any income realized as a result of any such investment, net of the
Mortgagee’s reasonable fees and expenses in making such investment, shall be
held and applied by the Mortgagee in the same manner as the principal amount
of
such investment is to be applied and any losses, net of earnings and such
reasonable fees and expenses, shall be charged against the principal amount
invested. The Mortgagee shall not be liable for any loss resulting from any
investment required to be made by it under this Trust Indenture other than
by
reason of its willful misconduct or gross negligence or negligence in the
handling of funds, and any such investment may be sold (without regard to its
maturity) by the Mortgagee without instructions whenever such sale is necessary
to make a distribution required by this Trust Indenture.
THE
MORTGAGEE
SECTION
7.01. Acceptance of Trusts and
Duties
The
Mortgagee accepts the duties hereby created and applicable to it and agrees
to
perform the same but only upon the terms of this Trust Indenture and agrees
to
receive and disburse all monies constituting part of the Collateral in
accordance with the terms hereof. The Mortgagee, in its individual capacity,
shall not be answerable or accountable under any circumstances, except (i)
for
its own willful misconduct or gross negligence (other than for the handling
of
funds, for which the standard of accountability shall be willful misconduct
or
negligence), (ii) as provided in the fourth sentence of Section 2.04(a) hereof
and the last sentence of Section 6.04 hereof, and (iii) from the inaccuracy
of
any representation or warranty of the Mortgagee (in its individual capacity)
in
the Participation Agreement or expressly made hereunder.
SECTION
7.02. Absence of
Duties
Except
in
accordance with written instructions furnished pursuant to Section 6.01 or
6.02
hereof, and except as provided in, and without limiting the generality of,
Sections 6.03, 6.04 and 7.07 hereof the Mortgagee shall have no duty (i) to
see
to any registration of the Aircraft or any recording or filing of this Trust
Indenture or any other document, or to see to the maintenance of any such
registration, recording or filing, (ii) to see to any insurance on the Aircraft
or to effect or maintain any such insurance, whether or not Owner shall be
in
default with respect thereto, (iii) to see to the payment or discharge of any
lien or encumbrance of any kind against any part of the Collateral, (iv) to
confirm, verify or inquire into the failure to receive any financial statements
from Owner, or (v) to inspect the Aircraft at any time or ascertain or inquire
as to the performance or observance of any of Owner’s covenants herein or any
Permitted Lessee’s covenants under any assigned Permitted Lease with respect to
the Aircraft.
SECTION
7.03. No Representations or Warranties
as to Aircraft or Documents
THE
MORTGAGEE IN ITS INDIVIDUAL OR TRUST CAPACITY DOES NOT MAKE AND SHALL NOT BE
DEEMED TO HAVE MADE AND HEREBY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, AIRWORTHINESS, VALUE, COMPLIANCE
WITH SPECIFICATIONS, CONDITION, DESIGN, QUALITY, DURABILITY, OPERATION,
MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE OF THE AIRCRAFT
OR
ANY ENGINE, AS TO THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT
DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK
OR
COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT
OR
ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER. The Mortgagee, in its
individual or trust capacities, does not make or shall not be deemed to have
made any representation or warranty as to the validity, legality or
enforceability of this Trust Indenture, the Participation
Agreement,
the Equipment Notes, or the Purchase Agreement, or as to the correctness of
any
statement contained in any thereof, except for the representations and
warranties of the Owner made in its individual capacity and the representations
and warranties of the Mortgagee in its individual capacity, in each case
expressly made in this Trust Indenture or in the Participation Agreement. The
Note Holders make no representation or warranty hereunder
whatsoever.
SECTION
7.04. No Segregation of Monies; No
Interest
Except
as
otherwise provided in Section 3.07 hereof, any monies paid to or retained by
the
Mortgagee pursuant to any provision hereof and not then required to be
distributed to the Note Holders, or the Owner as provided in Article III hereof
need not be segregated in any manner except to the extent required by Law or
Section 6.06 hereof, and may be deposited under such general conditions as
may
be prescribed by Law, and the Mortgagee shall not be liable for any interest
thereon (except that the Mortgagee shall invest all monies held as directed
by
Owner so long as no Event of Default has occurred and is continuing (or in
the
absence of such direction, by the Majority In Interest of Note Holders) in
Cash
Equivalents; provided,
however,
that
any payments received, or applied hereunder, by the Mortgagee shall be accounted
for by the Mortgagee so that any portion thereof paid or applied pursuant hereto
shall be identifiable as to the source thereof.
SECTION
7.05. Reliance; Agreements; Advice of
Counsel
The
Mortgagee shall not incur any liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. The Mortgagee may
accept a copy of a resolution of the Board of Directors (or Executive Committee
thereof) of the Owner, certified by the Secretary or an Assistant Secretary
thereof as duly adopted and in full force and effect, as conclusive evidence
that such resolution has been duly adopted and that the same is in full force
and effect. As to the aggregate unpaid Original Amount of Equipment Notes
outstanding as of any date, the Owner may for all purposes hereof rely on a
certificate signed by any Vice President or other authorized corporate trust
officer of the Mortgagee. As to any fact or matter relating to the Owner the
manner of the ascertainment of which is not specifically described herein,
the
Mortgagee may for all purposes hereof rely on a certificate, signed by a duly
authorized officer of the Owner, as to such fact or matter, and such certificate
shall constitute full protection to the Mortgagee for any action taken or
omitted to be taken by it in good faith in reliance thereon. In the
administration of the trusts hereunder, the Mortgagee may execute any of the
trusts or powers hereof and perform its powers and duties hereunder directly
or
through agents or attorneys and may, at the expense of the Collateral, advise
with counsel, accountants and other skilled persons to be selected and retained
by it, and the Mortgagee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the written advice or written
opinion of any such counsel, accountants or other skilled persons.
SECTION
7.06. Compensation
The
Mortgagee shall be entitled to reasonable compensation, including expenses
and
disbursements (including the reasonable fees and expenses of counsel), for
all
services rendered hereunder and shall, on and subsequent to an Event of Default
hereunder, have a priority claim on the Collateral for the payment of such
compensation, to the extent that such compensation shall not be paid by Owner,
and shall have the right, on and subsequent to an Event of Default hereunder,
to
use or apply any monies held by it hereunder in the Collateral toward such
payments. The Mortgagee agrees that it shall have no right against the Note
Holders for any fee as compensation for its services as trustee under this
Trust
Indenture.
SECTION
7.07. Instructions from Note
Holders
In
the
administration of the trusts created hereunder, the Mortgagee shall have the
right to seek instructions from a Majority in Interest of Note Holders should
any provision of this Trust Indenture appear to conflict with any other
provision herein or should the Mortgagee’s duties or obligations hereunder be
unclear, and the Mortgagee shall incur no liability in refraining from acting
until it receives such instructions. The Mortgagee shall be fully protected
for
acting in accordance with any instructions received under this Section
7.07.
INDEMNIFICATION
SECTION
8.01. Scope of
Indemnification
The
Mortgagee shall be indemnified by the Owner to the extent and in the manner
provided in Section 8 of the Participation Agreement.
SUCCESSOR
AND SEPARATE TRUSTEES
SECTION
9.01. Resignation of Mortgagee;
Appointment of Successor
(a) The
Mortgagee or any successor thereto may resign at any time without cause by
giving at least 30 days’ prior written notice to the Owner and each Note Holder,
such resignation to be effective upon the acceptance of the trusteeship by
a
successor Mortgagee. In addition, a Majority in Interest of Note Holders may
at
any time (but only with the consent of Owner, which consent shall not be
unreasonably withheld, except that such consent shall not be necessary if an
Event of Default is continuing) remove the Mortgagee without cause by an
instrument in writing delivered to the Owner and the Mortgagee, and the
Mortgagee shall promptly notify each Note Holder thereof in writing, such
removal to be effective upon the acceptance of the trusteeship by a successor
Mortgagee. In the case of the resignation or removal of the Mortgagee, a
Majority in Interest of Note Holders may appoint a successor
Mortgagee
by an instrument signed by such holders, which successor, so long as no Event
of
Default shall have occurred and be continuing, shall be subject to Owner’s
reasonable approval. If a successor Mortgagee shall not have been appointed
within 30 days after such notice of resignation or removal, the Mortgagee,
the
Owner or any Note Holder may apply to any court of competent jurisdiction to
appoint a successor Mortgagee to act until such time, if any, as a successor
shall have been appointed as above provided. The successor Mortgagee so
appointed by such court shall immediately and without further act be superseded
by any successor Mortgagee appointed as above provided.
(b) Any
successor Mortgagee, however appointed, shall execute and deliver to the Owner
and the predecessor Mortgagee an instrument accepting such appointment and
assuming the obligations of the Mortgagee arising from and after the time of
such appointment, and thereupon such successor Mortgagee, without further act,
shall become vested with all the estates, properties, rights, powers and duties
of the predecessor Mortgagee hereunder in the trust hereunder applicable to
it
with like effect as if originally named the Mortgagee herein; but nevertheless
upon the written request of such successor Mortgagee, such predecessor Mortgagee
shall execute and deliver an instrument transferring to such successor
Mortgagee, upon the trusts herein expressed applicable to it, all the estates,
properties, rights and powers of such predecessor Mortgagee, and such
predecessor Mortgagee shall duly assign, transfer, deliver and pay over to
such
successor Mortgagee all monies or other property then held by such predecessor
Mortgagee hereunder.
(c) Any
successor Mortgagee, however appointed, shall be a bank or trust company having
its principal place of business in the Borough of Manhattan, City and State
of
New York; Chicago, Illinois; Hartford, Connecticut; Wilmington, Delaware; or
Boston, Massachusetts and having (or whose obligations under the Operative
Agreements are guaranteed by an affiliated entity having) a combined capital
and
surplus of at least $100,000,000, if there be such an institution willing,
able
and legally qualified to perform the duties of the Mortgagee hereunder upon
reasonable or customary terms.
(d) Any
corporation into which the Mortgagee may be merged or converted or with which
it
may be consolidated, or any corporation resulting from any merger, conversion
or
consolidation to which the Mortgagee shall be a party, or any corporation to
which substantially all the corporate trust business of the Mortgagee may be
transferred, shall, subject to the terms of paragraph (c) of this Section 9.01,
be a successor Mortgagee and the Mortgagee under this Trust Indenture without
further act.
(e) The
Owner
consents to any change in the identity of the Mortgagee on the International
Registry occasioned by provisions of this Section 9.01, and if required by
the International Registry to reflect such change, will provide its consent
thereto.
SECTION
9.02. Appointment of Additional and
Separate Trustees
(a) Whenever
(i) the Mortgagee shall deem it necessary or desirable in order to conform
to
any Law of any jurisdiction in which all or any part of the Collateral shall
be
situated or to make any claim or bring any suit with respect to or in connection
with the
Collateral,
this Trust Indenture, any other Indenture Agreement, the Equipment Notes or
any
of the transactions contemplated by the Participation Agreement, (ii) the
Mortgagee shall be advised by counsel satisfactory to it that it is so necessary
or prudent in the interests of the Note Holders (and the Mortgagee shall so
advise the Owner), or (iii) the Mortgagee shall have been requested to do so
by
a Majority in Interest of Note Holders, then in any such case, the Mortgagee
and, upon the written request of the Mortgagee, the Owner, shall execute and
deliver an indenture supplemental hereto and such other instruments as may
from
time to time be necessary or advisable either (1) to constitute one or more
bank
or trust companies or one or more persons approved by the Mortgagee, either
to
act jointly with the Mortgagee as additional trustee or trustees of all or
any
part of the Collateral, or to act as separate trustee or trustees of all or
any
part of the Collateral, in each case with such rights, powers, duties and
obligations consistent with this Trust Indenture as may be provided in such
supplemental indenture or other instruments as the Mortgagee or a Majority
in
Interest of Note Holders may deem necessary or advisable, or (2) to clarify,
add
to or subtract from the rights, powers, duties and obligations theretofore
granted any such additional or separate trustee, subject in each case to the
remaining provisions of this Section 9.02. If the Owner shall not have taken
any
action requested of it under this Section 9.02(a) that is permitted or required
by its terms within 15 days after the receipt of a written request from the
Mortgagee so to do, or if an Event of Default shall have occurred and be
continuing, the Mortgagee may act under the foregoing provisions of this Section
9.02(a) without the concurrence of the Owner, and the Owner hereby irrevocably
appoints (which appointment is coupled with an interest) the Mortgagee, its
agent and attorney-in-fact to act for it under the foregoing provisions of
this
Section 9.02(a) in either of such contingencies. The Mortgagee may, in such
capacity, execute, deliver and perform any such supplemental indenture, or
any
such instrument, as may be required for the appointment of any such additional
or separate trustee or for the clarification of, addition to or subtraction
from
the rights, powers, duties or obligations theretofore granted to any such
additional or separate trustee. In case any additional or separate trustee
appointed under this Section 9.02(a) shall die, become incapable of acting,
resign or be moved, all the assets, property, rights, powers, trusts, duties
and
obligations of such additional or separate trustee shall revert to the Mortgagee
until a successor additional or separate trustee is appointed as provided in
this Section 9.02(a).
(b) No
additional or separate trustee shall be entitled to exercise any of the rights,
powers, duties and obligations conferred upon the Mortgagee in respect of the
custody, investment and payment of monies and all monies received by any such
additional or separate trustee from or constituting part of the Collateral
or
otherwise payable under any Operative Agreement to the Mortgagee shall be
promptly paid over by it to the Mortgagee. All other rights, powers, duties
and
obligations conferred or imposed upon any additional or separate trustee shall
be exercised or performed by the Mortgagee and such additional or separate
trustee jointly except to the extent that applicable Law of any jurisdiction
in
which any particular act is to be performed renders the Mortgagee incompetent
or
unqualified to perform such act, in which event such rights, powers, duties
and
obligations (including the holding of title to all or part of the Collateral
in
any such jurisdiction) shall be exercised and performed by such additional
or
separate trustee. No additional or separate trustee shall take any discretionary
action except on the instructions of the Mortgagee or a Majority in Interest
of
Note Holders. No trustee hereunder shall be personally liable by reason of
any
act or omission of any other trustee hereunder, except that the Mortgagee shall
be liable for the consequences of its lack of reasonable care in selecting,
and
the
Mortgagee’s own actions in acting with, any additional or separate trustee. Each
additional or separate trustee appointed pursuant to this Section 9.02 shall
be
subject to, and shall have the benefit of Articles V through IX and Article
XI
hereof insofar as they apply to the Mortgagee. The powers of any additional
or
separate trustee appointed pursuant to this Section 9.02 shall not in any case
exceed those of the Mortgagee hereunder.
(c) If
at any
time the Mortgagee shall deem it no longer necessary or in order to conform
to
any such Law or take any such action or shall be advised by such counsel that
it
is no longer so necessary or desirable in the interest of the Note Holders,
or
in the event that the Mortgagee shall have been requested to do so in writing
by
a Majority in Interest of Note Holders, the Mortgagee and, upon the written
request of the Mortgagee, the Owner, shall execute and deliver an indenture
supplemental hereto and all other instruments and agreements necessary or proper
to remove any additional or separate trustee. The Mortgagee may act on behalf
of
the Owner under this Section 9.02(c) when and to the extent it could so act
under Section 9.02(a) hereof.
SUPPLEMENTS
AND AMENDMENTS TO THIS TRUST INDENTURE
AND
OTHER DOCUMENTS
SECTION
10.01. Instructions of Majority;
Limitations
(a) The
Mortgagee agrees with the Note Holders that it shall not enter into any
amendment, waiver or modification of, supplement or consent to this Trust
Indenture, or any other Operative Agreement to which it is a party, unless
such
supplement, amendment, waiver, modification or consent is consented to in
writing by a Majority in Interest of Note Holders, but upon the written request
of a Majority in Interest of Note Holders, the Mortgagee shall from time to
time
enter into any such supplement or amendment, or execute and deliver any such
waiver, modification or consent, as may be specified in such request and as
may
be (in the case of any such amendment, supplement or modification), to the
extent such agreement is required, agreed to by the Owner and, as may be
appropriate, the Airframe Manufacturer or the Engine Manufacturer; provided,
however,
that,
without the consent of each holder of an affected Equipment Note then
outstanding and the Liquidity Providers, no such amendment, waiver or
modification of the terms of, or consent under, any thereof, shall (i) modify
any of the provisions of this Section 10.01, or of Article II or III or Section
5.01, 5.02(c), 5.02(d), or 6.02 hereof, the definitions of “Event of Default,”
“Default,” “Majority in Interest of Note Holders,” “Make-Whole Amount” or “Note
Holder,” or the percentage of Note Holders required to take or approve any
action hereunder, (ii) reduce the amount, or change the time of payment or
method of calculation of any amount, of Original Amount, Make-Whole Amount,
if
any, or interest with respect to any Equipment Note, (iii) reduce, modify or
amend any indemnities in favor of the Mortgagee or the Note Holders (except
that
the Mortgagee may consent to any waiver or reduction of an indemnity payable
to
it), or the other Indenture Indemnitees or (iv) permit the creation of any
Lien
on the Trust Indenture Estate or any part thereof other than Permitted Liens
or
deprive any Note Holder of the benefit of the Lien of this Trust Indenture
on
the Collateral,
except
as
provided in connection with the exercise of remedies under Article V hereof;
provided,
further,
that
without the consent of each holder of an affected Related Equipment Note then
outstanding, no such amendment, waiver or modification of terms of, or consent
under, any thereof shall modify Section 3.03 or deprive any Related Note Holder
of the benefit of the Lien of this Trust Indenture on the Collateral, except
as
provided in connection with the exercise of remedies under Article V hereof.
Notwithstanding the foregoing, without the consent of the affected Liquidity
Provider neither the Owner nor the Mortgagee shall enter into any amendment,
waiver or modification of, supplement or consent to this Trust Indenture or
the
other Operative Agreements which shall reduce, modify or amend any indemnities
in favor of such Liquidity Provider.
(b) The
Owner
and the Mortgagee may enter into one or more agreements supplemental hereto
without the consent of any Note Holder for any of the following purposes: (i)
(a) to cure any defect or inconsistency herein or in the Equipment Notes, or
to
make any change not inconsistent with the provisions hereof (provided
that
such change does not adversely affect the interests of any Note Holder in its
capacity solely as Note Holder) or (b) to cure any ambiguity or correct any
mistake; (ii) to evidence the succession of another party as the Owner in
accordance with the terms hereof or to evidence the succession of a new trustee
hereunder pursuant hereto, the removal of the trustee hereunder or the
appointment of any co-trustee or co-trustees or any separate or additional
trustee or trustees; (iii) to convey, transfer, assign, mortgage or pledge
any
property to or with the Mortgagee or to make any other provisions with respect
to matters or questions arising hereunder so long as such action shall not
adversely affect the interests of the Note Holders in its capacity solely as
Note Holder; (iv) to correct or amplify the description of any property at
any
time subject to the Lien of this Trust Indenture or better to assure, convey
and
confirm unto the Mortgagee any property subject or required to be subject to
the
Lien of this Trust Indenture, the Airframe or Engines or any Replacement
Airframe or Replacement Engine; (v) to add to the covenants of the Owner for
the
benefit of the Note Holders, or to surrender any rights or power herein
conferred upon the Owner; (vi) to add to the rights of the Note Holders; (vii)
to provide for the reissuance of Series B Equipment Notes (and Related
Series B Equipment Notes) or Series C Equipment Notes (and Related Series C
Equipment Notes) or the issuance or reissuance from time to time of one or
more
series of Additional Series Equipment Notes (and any Related Additional Series
Equipment Notes) and for pass through certificates issued by any pass through
trust that acquires any such Equipment Notes and to make changes relating to
any
of the foregoing (including without limitation to further provide for the
issuance of more than one series of Additional Series Equipment Notes (including
without limitation to provide for the relative priority of different series
of
Additional Series Equipment Notes as between such series) and to provide for
any
credit support for any such issued or reissued Equipment Notes or Related
Equipment Notes (including without limitation to secure claims for fees,
interest, expenses, reimbursement of advances and other obligations arising
from
such credit support (including without limitation to specify such credit support
as a “Liquidity Facility” and the provider of any such credit support as a
“Liquidity Provider”)), provided that such Equipment Notes are issued in
accordance with the Note Purchase Agreement and Section 9.1 of the Intercreditor
Agreement; and (viii) to include on the Equipment Notes any legend as may
be required by Law.
SECTION
10.02. Mortgagee
Protected
If,
in
the opinion of the institution acting as Mortgagee hereunder, any document
required to be executed by it pursuant to the terms of Section 10.01 hereof
affects any right, duty, immunity or indemnity with respect to such institution
under this Trust Indenture, such institution may in its discretion decline
to
execute such document.
SECTION
10.03. Documents Mailed to Note
Holders
Promptly
after the execution by the Owner or the Mortgagee of any document entered into
pursuant to Section 10.01 hereof, the Mortgagee shall mail, by first class
mail,
postage prepaid, a copy thereof to Owner (if not a party thereto) and to each
Note Holder at its address last set forth in the Equipment Note Register, but
the failure of the Mortgagee to mail such copies shall not impair or affect
the
validity of such document.
SECTION
10.04. No Request Necessary for Trust
Indenture Supplement
No
written request or consent of the Note Holders pursuant to Section 10.01 hereof
shall be required to enable the Mortgagee to execute and deliver a Trust
Indenture Supplement specifically required by the terms hereof.
MISCELLANEOUS
SECTION
11.01. Termination of Trust
Indenture
Upon
(or
at any time after) payment in full of the Original Amount of, Make-Whole Amount,
if any, and interest on and all other amounts due under all Equipment Notes
and
provided that (i) there shall then be no other Secured Obligations due to the
Indenture Indemnitees, the Note Holders and the Mortgagee hereunder or under
the
Participation Agreement, any other Operative Agreement, any Related Equipment
Note or any Related Indenture and (ii) in the case of any redemption of all
of
the Equipment Notes pursuant to Section 2.11(a) hereof, the provisions of the
foregoing clause (i) shall apply and no Related Indenture Bankruptcy Default
or
Related Indenture Event of Default shall have occurred and be continuing, the
Owner shall direct the Mortgagee to execute and deliver to or as directed in
writing by the Owner an appropriate instrument releasing the Aircraft and the
Engines and (subject to paragraph (v) of clause “Third” of Section 3.03 hereof,
if applicable) all other Collateral from the Lien of the Trust Indenture and
the
Mortgagee shall execute and deliver such instrument as aforesaid; provided,
however,
that
this Trust Indenture and the trusts created hereby shall earlier terminate
and
this Trust Indenture shall be of no further force or effect upon any sale or
other final disposition by the Mortgagee of all property constituting part
of
the Collateral and the final distribution by the Mortgagee of all monies or
other property or proceeds constituting part of the Collateral in accordance
with the terms hereof. Except as aforesaid otherwise provided, this Trust
Indenture and the trusts created hereby shall continue in full force and effect
in accordance with the terms hereof.
SECTION
11.02. No Legal Title to Collateral in
Note Holders
No
holder
of an Equipment Note or a Related Equipment Note shall have legal title to
any
part of the Collateral. No transfer, by operation of law or otherwise, of any
Equipment Note or Related Equipment Note or other right, title and interest
of
any Note Holder or holder of a Related Equipment Note in and to the Collateral
or hereunder shall operate to terminate this Trust Indenture or entitle such
holder or any successor or transferee of such holder to an accounting or to
the
transfer to it of any legal title to any part of the Collateral.
SECTION
11.03. Sale of Aircraft by Mortgagee
Is Binding
Any
sale
or other conveyance of the Collateral, or any part thereof (including any part
thereof or interest therein), by the Mortgagee made pursuant to the terms of
this Trust Indenture shall bind the Note Holders and shall be effective to
transfer or convey all right, title and interest of the Mortgagee, the Owner
and
such holders in and to such Collateral or part thereof. No purchaser or other
grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such sale or conveyance or as to the application
of
any sale or other proceeds with respect thereto by the Mortgagee.
SECTION
11.04. Trust Indenture for Benefit of
Owner, Mortgagee, Note Holders and the other Indenture
Indemnitees
Nothing
in this Trust Indenture, whether express or implied, shall be construed to
give
any person other than the Owner, the Mortgagee, the Note Holders and the other
Indenture Indemnitees (including the Related Note Holders), any legal or
equitable right, remedy or claim under or in respect of this Trust Indenture,
except that the persons referred to in the last paragraph of Section 4.02(b)
shall be third party beneficiaries of such paragraph.
SECTION
11.05. Notices
Unless
otherwise expressly specified or permitted by the terms hereof, all notices,
requests, demands, authorizations, directions, consents, waivers or documents
provided or permitted by this Trust Indenture to be made, given, furnished
or
filed shall be in writing, personally delivered or mailed by certified mail,
postage prepaid, or by facsimile or confirmed telex, and (i) if to the Owner,
addressed to it at 1600 Smith Street, HQS-FN, Houston, Texas 77002, Attention:
Treasurer, facsimile number (713) 324-2447, (ii) if to Mortgagee, addressed
to
it at its office at Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890, Attention: Corporate Trust Administration, facsimile number
(302) 636-4140, (iii) if to any Note Holder or any Indenture Indemnitee,
addressed to such party at such address as such party shall have furnished
by
notice to the Owner and the Mortgagee, or, until an address is so furnished,
addressed to the address of such party (if any) set forth on Schedule 1 to
the Participation Agreement or in the Equipment Note Register. Whenever any
notice in writing is required to be given by the Owner or the Mortgagee or
any
Note Holder to any of the other of them, such notice shall be deemed given
and
such requirement satisfied when such notice is received, or if such notice
is
mailed by certified mail, postage prepaid, three Business Days after being
mailed, addressed as provided above. Any party hereto may change the address
to
which
notices
to such party will be sent by giving notice of such change to the other parties
to this Trust Indenture.
SECTION
11.06. Severability
Any
provision of this Trust Indenture which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any such prohibition or unenforceability in any particular
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
SECTION
11.07. No Oral Modification or
Continuing Waivers
No
term
or provision of this Trust Indenture or the Equipment Notes may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the Owner and the Mortgagee, in compliance with Section 10.01 hereof.
Any waiver of the terms hereof or of any Equipment Note shall be effective
only
in the specific instance and for the specific purpose given.
SECTION
11.08. Successors and
Assigns
All
covenants and agreements contained herein shall be binding upon, and inure
to
the benefit of, each of the parties hereto and the permitted successors and
assigns of each, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by any Note Holder shall bind
the
successors and assigns of such holder. Each Note Holder by its acceptance of
an
Equipment Note agrees to be bound by this Trust Indenture and all provisions
of
the Operative Agreements applicable to a Note Holder.
SECTION
11.09. Headings
The
headings of the various Articles and sections herein and in the table of
contents hereto are for convenience of reference only and shall not define
or
limit any of the terms or provisions hereof.
SECTION
11.10. Normal Commercial
Relations
Anything
contained in this Trust Indenture to the contrary notwithstanding. Owner and
Mortgagee may conduct any banking or other financial transactions, and have
banking or other commercial relationships, with Owner, fully to the same extent
as if this Trust Indenture were not in effect, including without limitation
the
making of loans or other extensions of credit to Owner for any purpose
whatsoever, whether related to any of the transactions contemplated hereby
or
otherwise.
SECTION
11.11. Governing Law; Counterpart
Form
THIS
TRUST INDENTURE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. THIS TRUST
INDENTURE IS BEING DELIVERED IN THE STATE OF NEW YORK. This Trust Indenture
may
be executed by the parties hereto in separate counterparts (or upon separate
signature pages bound together into one or more counterparts), each of which
when so executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION
11.12. Voting By Note
Holders
All
votes
of the Note Holders shall be governed by a vote of a Majority in Interest of
Note Holders, except as otherwise provided herein.
SECTION
11.13. Bankruptcy
It
is the
intention of the parties that the Mortgagee shall be entitled to the benefits
of
Section 1110 with respect to the right to take possession of the Aircraft,
Airframe, Engines and Parts and to enforce any of its other rights or remedies
as provided herein in the event of a case under Chapter 11 of the Bankruptcy
Code in which Owner is a debtor, and in any instance where more than one
construction is possible of the terms and conditions hereof or any other
pertinent Operative Agreement, each such party agrees that a construction which
would preserve such benefits shall control over any construction which would
not
preserve such benefits.
IN
WITNESS WHEREOF, the parties hereto have caused this Trust Indenture and
Mortgage to be duly executed by their respective officers thereof duly
authorized as of the day and year first above written.
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CONTINENTAL
AIRLINES, INC.
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By:___________________________________
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Name:
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Title:
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WILMINGTON
TRUST COMPANY,
as
Mortgagee
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By:___________________________________
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Name:
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Title:
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DEFINITIONS
GENERAL
PROVISIONS
(a) In
each
Operative Agreement, unless otherwise expressly provided, a reference
to:
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(i)
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each
of “Owner,” “Mortgagee,” “Note Holder” or any other person includes,
without prejudice to the provisions of any Operative Agreement, any
successor in interest to it and any permitted transferee, permitted
purchaser or permitted assignee of
it;
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(ii)
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words
importing the plural include the singular and words importing the
singular
include the plural;
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(iii)
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any
agreement, instrument or document, or any annex, schedule or exhibit
thereto, or any other part thereof, includes, without prejudice to
the
provisions of any Operative Agreement, that agreement, instrument
or
document, or annex, schedule or exhibit, or part, respectively, as
amended, modified or supplemented from time to time in accordance
with its
terms and in accordance with the Operative Agreements, and any agreement,
instrument or document entered into in substitution or replacement
therefor (including, without limitation, in the case of each Pass
Through
Trust Agreement, the “Related Pass Through Trust Agreement” as defined
therein);
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(iv)
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any
provision of any Law includes any such provision as amended, modified,
supplemented, substituted, reissued or reenacted prior to the Closing
Date, and thereafter from time to
time;
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(v)
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the
words “Agreement,” “this Agreement,” “hereby,” “herein,” “hereto,”
“hereof” and “hereunder” and words of similar import when used in any
Operative Agreement refer to such Operative Agreement as a whole
and not
to any particular provision of such Operative
Agreement;
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(vi)
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the
words “including,” “including, without limitation,” “including, but not
limited to,” and terms or phrases of similar import when used in any
Operative Agreement, with respect to any matter or thing, mean including,
without limitation, such matter or thing; and
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(vii)
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a
“Section,” an “Exhibit,” an “Annex” or a “Schedule” in any Operative
Agreement, or in any annex thereto, is a reference to a section of,
or an
exhibit, an annex or a schedule to, such Operative Agreement or such
annex, respectively.
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(b) Each
exhibit, annex and schedule to each Operative Agreement is incorporated in,
and
shall be deemed to be a part of, such Operative Agreement.
(c) Unless
otherwise defined or specified in any Operative Agreement, all accounting terms
therein shall be construed and all accounting determinations thereunder shall
be
made in accordance with GAAP.
(d) Headings
used in any Operative Agreement are for convenience only and shall not in any
way affect the construction of, or be taken into consideration in interpreting,
such Operative Agreement.
(e) For
purposes of each Operative Agreement, the occurrence and continuance of a
Default or Event of Default referred to in Section 5.01(v),(vi) or (vii)
shall not be deemed to prohibit the Owner from taking any action or exercising
any right that is conditioned on no Special Default, Default or Event of Default
having occurred and be continuing if such Special Default, Default or Event
of
Default consists of the institution of reorganization proceedings with respect
to Owner under Chapter 11 of the Bankruptcy Code and the trustee or
debtor-in-possession in such proceedings shall have agreed to perform its
obligations under the Trust Indenture with the approval of the applicable court
and thereafter shall have continued to perform such obligations in accordance
with Section 1110.
DEFINED
TERMS
“Act”
means
part A of subtitle VII of title 49, United States Code.
“Actual
Knowledge”
means
(a) as it applies to Mortgagee, actual knowledge of a responsible officer in
the
Corporate Trust Office, and (b) as it applies to Owner, actual knowledge of
a
Vice President or more senior officer of Owner or any other officer of Owner
having responsibility for the transactions contemplated by the Operative
Agreements; provided
that
each of Owner and Mortgagee shall be deemed to have “Actual Knowledge” of any
matter as to which it has received notice from Owner, any Note Holder or
Mortgagee, such notice having been given pursuant to Section 11.05 of the Trust
Indenture.
“Additional
Series”
or
“Additional
Series Equipment Notes”
means
Equipment Notes issued under the Trust Indenture and designated as a series
(other than “Series A”, “Series B” or “Series C”) thereunder, in the Original
Amount and maturities and bearing interest as specified in Schedule I to the
Trust Indenture amended at the time of original issuance of such Additional
Series) under the heading for such series.
“Affiliate”
means,
with respect to any person, any other person directly or indirectly controlling,
controlled by or under common control with such person. For 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
“controlling,” “controlled by” and “under common control with” have correlative
meanings.
“Aircraft”
means,
collectively, the Airframe and Engines.
“Aircraft
Bill of Sale”
means
the full warranty bill of sale covering the Aircraft delivered by Airframe
Manufacturer to Owner.
“Aircraft
Documents”
means
all technical data, manuals and log books, and all inspection, modification
and
overhaul records and other service, repair, maintenance and technical records
that are required by the FAA (or the relevant Aviation Authority), to be
maintained with respect to the Aircraft, Airframe, Engines or Parts, and such
term shall include all additions, renewals, revisions and replacements of any
such materials from time to time made, or required to be made, by the FAA (or
other Aviation Authority) regulations, and in each case in whatever form and
by
whatever means or medium (including, without limitation, microfiche, microfilm,
paper or computer disk) such materials may be maintained or retained by or
on
behalf of Owner (provided,
that
all such materials shall be maintained in the English language).
“Airframe”
means
(a) the aircraft (excluding Engines or engines from time to time installed
thereon) manufactured by Airframe Manufacturer and identified by Airframe
Manufacturer’s model number, United States registration number and Airframe
Manufacturer’s serial number set forth in the initial Trust Indenture Supplement
and any Replacement Airframe and (b) any and all Parts incorporated or installed
in or attached or appurtenant to such airframe, and any and all Parts removed
from such airframe, unless the Lien of the Trust Indenture shall not be
applicable to such Parts in accordance with Section 4.04 of the Trust Indenture.
Upon substitution of a Replacement Airframe under and in accordance with the
Trust Indenture, such Replacement Airframe shall become subject to the Trust
Indenture and shall be the “Airframe” for all purposes of the Trust Indenture
and the other Operative Agreements and thereupon the Airframe for which the
substitution is made shall no longer be subject to the Trust Indenture, and
such
replaced Airframe shall cease to be the “Airframe.”
“Airframe
Manufacturer”
means
The Boeing Company, a Delaware corporation.
“Applicable
Pass Through Trust”
means
each of the separate pass through trusts created under the Applicable Pass
Through Trust Agreements.
“Applicable
Pass Through Trust Agreement”
means
each of the separate Pass Through Trust Agreements by and between the Owner
and
an Applicable Pass Through Trustee.
“Applicable
Pass Through Trustee”
means
each Pass Through Trustee that is a party to the Participation
Agreement.
“Average
Life Date”
for
any
Equipment Note shall be the date which follows the time of determination by
a
period equal to the Remaining Weighted Average Life of such Equipment Note.
“Remaining Weighted Average Life” on a given date with respect to any Equipment
Note shall be the number of days equal to the quotient obtained by dividing
(a)
the sum of each of the products obtained by multiplying (i) the amount of each
then remaining scheduled payment of principal of such Equipment Note by (ii)
the
number of days from and including such determination date to but excluding
the
date on which such payment of principal is scheduled to be made, by (b) the
then
outstanding principal amount of such Equipment Note.
“Aviation
Authority”
means
the FAA or, if the Aircraft is permitted to be, and is, registered with any
other Government Entity under and in accordance with Section 4.02 (e) of the
Trust Indenture and Section 6.4.5 of the Participation Agreement, such
other Government Entity.
“Bankruptcy
Code”
means
the United States Bankruptcy Code, 11 U.S.C. Sections 101 et
seq.
“Basic
Pass Through Trust Agreement”
means
the Pass Through Trust Agreement, dated September 25, 1997, between Owner and
Pass Through Trustee, but does not include any Trust Supplement.
“Bills
of Sale”
means
the FAA Bill of Sale and the Aircraft Bill of Sale.
“Business
Day”
means
any day other than a Saturday, Sunday or other day on which commercial banks
are
authorized or required by law to close in New York, New York, Houston, Texas,
or
Wilmington, Delaware.
“Cape
Town Treaty”
means
the Cape Town Convention on International Interests in Mobile Equipment and
the
related Aircraft Equipment Protocol, as in effect in the United
States.
“Cash
Equivalents”
means
the following securities (which shall mature within 90 days of the date of
purchase thereof): (a) direct obligations of the U.S. Government; (b)
obligations fully guaranteed by the U.S. Government; (c) certificates of deposit
issued by, or bankers’ acceptances of, or time deposits or a deposit account
with, Mortgagee or any bank, trust company or national banking association
incorporated or doing business under the laws of the United States or any state
thereof having a combined capital and surplus and retained earnings of at least
$500,000,000 and having a rate of “C” or better from the Thomson BankWatch
Service; or (d) commercial paper of any issuer doing business under the laws
of
the United States or one of the states thereof and in each case having a rating
assigned to such commercial paper by Standard & Poor’s Ratings Services or
Moody’s Investors Service, Inc. equal to A1 (or higher) or P-1,
respectively.
“Certificate
Owner”
is
defined in the Pass Through Trust Agreements.
“Citizen
of the United States”
is
defined in 49 U.S.C. § 40102(a)(15).
“Class A
Pass Through Trust”
means
the Continental Airlines Pass Through Trust 2007-1A.
“Class B
Pass Through Trust”
means
the Continental Airlines Pass Through Trust 2007-1B.
“Class C
Pass Through Trust”
means
the Continental Airlines Pass Through Trust 2007-1C.
“Closing”
means
the closing of the transactions contemplated by the Participation
Agreement.
“Closing
Date”
means
the date on which the Closing occurs.
“Code”
means
the Internal Revenue Code of 1986, as amended; provided that, when used in
relation to a Plan, “Code” shall mean the Internal Revenue Code of 1986 and any
regulations and rulings issued thereunder, all as amended and in effect from
time to time.
“Collateral”
is
defined in the Granting Clause of the Trust Indenture.
“Consent
and Agreement”
means
the Manufacturer Consent and Agreement [____], dated as of even date with the
Participation Agreement, of Airframe Manufacturer.
“Corporate
Trust Office”
means
the principal office of Mortgagee located at Mortgagee’s address for notices
under the Participation Agreement or such other office at which Mortgagee’s
corporate trust business shall be administered which Mortgagee shall have
specified by notice in writing to Owner and each Note Holder.
“CRAF”
means
the Civil Reserve Air Fleet Program established pursuant to 10 U.S.C. Section
9511-13 or any similar substitute program.
“Debt
Rate”
means,
with respect to (i) any Series of Equipment Notes, the rate per annum specified
for such Series under the heading “Interest Rate” in Schedule I to the Trust
Indenture (as amended, in the case of any Additional Series, at the time of
original issuance of such Additional Series), and (ii) any other purpose, with
respect to any period, the weighted average interest rate per annum during
such
period borne by the outstanding Equipment Notes, excluding any interest payable
at the Payment Due Rate.
“Default”
means
any event or condition that with the giving of notice or the lapse of time
or
both would become an Event of Default.
“Deposit
Agreement”
means
each of the three Deposit Agreements between the Escrow Agent and the
Depositary, dated as of the Issuance Date, which relate to the Class A,
Class B or Class C Pass Through Trust, provided
that,
for purposes of any obligation of Owner, no amendment, modification or
supplement to, or substitution or replacement of, any such Deposit Agreement
shall be effective unless consented to by Owner.
“Depositary”
means
Credit Suisse, New York Branch, as Depositary under each Deposit
Agreement.
“Dollars,”
“United
States Dollars”
or
“$”
means
the lawful currency of the United States.
“DOT”
means
the Department of Transportation of the United States or any Government Entity
succeeding to the functions of such Department of Transportation.
“Eligible
Account”
means
an account established by and with an Eligible Institution at the request of
the
Mortgagee, which institution agrees, for all purposes of the UCC including
Article 8 thereof, that (a) such account shall be a “securities account” (as
defined in Section 8-501(a) of the UCC), (b) all property (other than cash)
credited to such account shall be treated as a “financial asset” (as defined in
Section 8-102(a)(9) of the UCC), (c) the Mortgagee shall be the “entitlement
holder” (as defined in Section 8-102(a)(7) of the UCC) in respect of such
account, (d) it will comply with all entitlement orders issued by the Mortgagee
to the exclusion of the Owner, and (e) the “securities intermediary
jurisdiction” (under Section 8-110(e) of the UCC) shall be the State of New
York.
“Eligible
Institution”
means
the corporate trust department of (a) Wilmington Trust Company, acting solely
in
its capacity as a “securities intermediary” (as defined in Section 8-102(a)(14)
of the UCC), or (b) a depository institution organized under the laws of the
United States of America or any one of the states thereof or the District of
Columbia (or any U.S. branch of a foreign bank), which has a long-term unsecured
debt rating from Moody’s and Standard & Poor’s of at least A-3 or its
equivalent.
“Engine”
means
(a) each of the engines manufactured by Engine Manufacturer and identified
by
Engine Manufacturer’s model number and Engine Manufacturer’s serial number set
forth in the initial Trust Indenture Supplement and originally installed on
the
Airframe on the Closing Date, and any Replacement Engine, in any case whether
or
not from time to time installed on such Airframe or installed on any other
airframe or aircraft, and (b) any and all Parts incorporated or installed in
or
attached or appurtenant to such engine, and any and all Parts removed from
such
engine, unless the Lien of the Trust Indenture shall not apply to such Parts
in
accordance with Section 4.04 of the Trust Indenture. Upon substitution of a
Replacement Engine under and in accordance with the Trust Indenture, such
Replacement Engine shall become subject to the Trust Indenture and shall be
an
“Engine” for all purposes of the Trust Indenture and the other Operative
Agreements and thereupon the Engine for which the substitution is made shall
no
longer be subject to the Trust Indenture, and such replaced Engine shall cease
to be an “Engine.”
“Engine
Consent and Agreement”
means
the Engine Manufacturer Consent and Agreement [____] dated as of even date
with
the Participation Agreement, of Engine Manufacturer.
“Engine
Manufacturer”
means
[__________________], a corporation organized under the laws of
[__________].
“Equipment
Note Register”
is
defined in Section 2.07 of the Trust Indenture.
“Equipment
Notes”
means
and includes any equipment notes issued under the Trust Indenture in the form
specified in Section 2.01 thereof (as such form may be varied pursuant to the
terms of the Trust Indenture) and any Equipment Note issued under the Trust
Indenture in exchange for or replacement of any Equipment Note.
“ERISA”
means
the Employee Retirement Income Security Act of 1974, and any regulations and
rulings issued thereunder all as amended and in effect from time to
time.
“Escrow
Agent”
means
Wells Fargo Bank Northwest, National Association, as Escrow Agent under each
of
the Escrow Agreements.
“Escrow
Agreement”
means
each of the three Escrow and Paying Agent Agreements, among the Escrow Agent,
the Paying Agent, certain initial purchasers of the Pass Through Certificates
named therein and one of the Pass Through Trustees, dated as of the Issuance
Date, which relate to the Class A, Class B or Class C Pass Through Trust,
provided
that,
for purposes of any obligation of Owner, no amendment, modification or
supplement to, or substitution or replacement of, any such Escrow Agreement
shall be effective unless consented to by Owner.
“Event
of Default”
is
defined in Section 5.01 of the Trust Indenture.
“Event
of Loss”
means,
with respect to the Aircraft, Airframe or any Engine, any of the following
circumstances, conditions or events with respect to such property, for any
reason whatsoever:
(a) the
destruction of such property, damage to such property beyond economic repair
or
rendition of such property permanently unfit for normal use by
Owner;
(b) the
actual or constructive total loss of such property or any damage to such
property, or requisition of title or use of such property, which results in
an
insurance settlement with respect to such property on the basis of a total
loss
or constructive or compromised total loss;
(c) any
theft, hijacking or disappearance of such property for a period of 180
consecutive days or more;
(d) any
seizure, condemnation, confiscation, taking or requisition (including loss
of
title) of such property by any Government Entity or purported Government Entity
(other than a requisition of use by the U.S. Government) for a period exceeding
180 consecutive days;
(e) as
a
result of any law, rule, regulation, order or other action by the Aviation
Authority or by any Government Entity of the government of registry of the
Aircraft or by any Government Entity otherwise having jurisdiction over the
operation or use of the Aircraft, the use of such property in the normal course
of Owner’s business of passenger air transportation is prohibited for a period
of 180 consecutive days unless Owner, prior to the expiration of such 180-day
period, shall have undertaken and shall be diligently carrying forward such
steps as may be necessary or desirable to permit the normal use of such property
by Owner, but in any event if such use shall have been prohibited for a period
of two consecutive years, provided that no Event of Loss shall be deemed to
have
occurred if such prohibition has been applicable to Owner’s entire U.S. fleet of
such property and Owner, prior to the expiration of such two-year period, shall
have conformed at least one unit of such property in its fleet to the
requirements of any such law, rule, regulation, order or other action and
commenced regular commercial use of the same in such jurisdiction and shall
be
diligently carrying forward, in a manner which does not discriminate against
such property in so conforming such property, steps which are necessary or
desirable
to permit the normal use of the Aircraft by Owner, but in any event if such
use
shall have been prohibited for a period of three years.
“Expenses”
means
any and all liabilities, obligations, losses, damages, settlements, penalties,
claims, actions, suits, costs, expenses and disbursements (including, without
limitation, reasonable fees and disbursements of legal counsel, accountants,
appraisers, inspectors or other professionals, and costs of
investigation).
“FAA”
means
the Federal Aviation Administration of the United States or any Government
Entity succeeding to the functions of such Federal Aviation
Administration.
“FAA
Bill of Sale”
means
a
bill of sale for the Aircraft on AC Form 8050-2 (or such other form as may
be
approved by the FAA) delivered to Owner by Airframe Manufacturer.
“FAA
Filed Documents”
means
the Trust Indenture, the initial Trust Indenture Supplement, the FAA Bill of
Sale, AC Form 8050-135 with respect to the International Interests (or
Prospective International Interests) and an application for registration of
the
Aircraft with the FAA in the name of Owner.
“FAA
Regulations”
means
the Federal Aviation Regulations issued or promulgated pursuant to the Act
from
time to time.
“Final
Maturity Date”
means
April 19, 2022 (or, if not a Business Day, the next Business Day).
“Financing
Statements”
means,
collectively, UCC-1 (and, where appropriate, UCC-3) financing statements
covering the Collateral, by Owner, as debtor, showing Mortgagee as secured
party, for filing in Delaware and each other jurisdiction that, in the opinion
of Mortgagee, is necessary to perfect its Lien on the Collateral.
“GAAP”
means
generally accepted accounting principles as set forth in the statements of
financial accounting standards issued by the Financial Accounting Standards
Board of the American Institute of Certified Public Accountants, as such
principles may at any time or from time to time be varied by any applicable
financial accounting rules or regulations issued by the SEC and, with respect
to
any person, shall mean such principles applied on a basis consistent with prior
periods except as may be disclosed in such person’s financial
statements.
“Government
Entity”
means
(a) any federal, state, provincial or similar government, and any body, board,
department, commission, court, tribunal, authority, agency or other
instrumentality of any such government or otherwise exercising any executive,
legislative, judicial, administrative or regulatory functions of such government
or (b) any other government entity having jurisdiction over any matter
contemplated by the Operative Agreements or relating to the observance or
performance of the obligations of any of the parties to the Operative
Agreements.
“Indemnitee”
means
(i) WTC and Mortgagee, (ii) each separate or additional trustee appointed
pursuant to the Trust Indenture, (iii) the Subordination Agent, the Paying
Agent
and
the Escrow Agent, (iv) the Liquidity Providers, (v) the Pass Through Trustees
and each Related Note Holder, (vi) each Affiliate of the persons described
in clauses (i) and (ii), (vii) each Affiliate of the persons described in
clauses (iii), (iv) and (v), (viii) the respective directors, officers,
employees, agents and servants of each of the persons described in
clauses (i), (ii) and (vi), (ix) the respective directors, officers,
employees, agents and servants of each of the persons described in clauses
(iii), (iv), (v) and (vii), (x) the successors and permitted assigns of the
persons described in clauses (i), (ii) and (viii), and (xi) the successors
and
permitted assigns of the persons described in clauses (iii), (iv), (v) and
(ix);
provided that the persons described in clauses (iii), (iv), (v), (vii), (ix)
and
(xi) are Indemnitees only for purposes of Section 8.1 of the Participation
Agreement. If any Indemnitee is Airframe Manufacturer or Engine Manufacturer
or
any subcontractor or supplier of either thereof, such Person shall be an
Indemnitee only in its capacity as Note Holder.
“Indenture
Agreements”
means
the Purchase Agreement and the Bills of Sale, to the extent included in Granting
Clause (2) of the Trust Indenture, and any other contract, agreement or
instrument from time to time assigned or pledged under the Trust
Indenture.
“Indenture
Default”
means
any condition, circumstance, act or event that, with the giving of notice,
the
lapse of time or both, would constitute an Indenture Event of
Default.
“Indenture
Event of Default”
means
any one or more of the conditions, circumstances, acts or events set forth
in
Section 5.01 of the Trust Indenture.
“Indenture
Indemnitee”
means
(i) WTC and the Mortgagee, (ii) each separate or additional trustee
appointed pursuant to the Trust Indenture, (iii) the Subordination Agent,
(iv) each Liquidity Provider, (v) each Pass Through Trustee and each
Related Note Holder, (vi) the Paying Agent, (vii) the Escrow Agent and
(viii) each of the respective directors, officers, employees, agents and
servants of each of the persons described in clauses (i) through (vii) inclusive
above.
“Intercreditor
Agreement”
means
that certain Intercreditor Agreement among the Pass Through Trustees, the
Liquidity Providers and the Subordination Agent, dated as of the Issuance Date,
provided that (i) for purposes of any obligation of Owner, no amendment,
modification or supplement to, or substitution or replacement of, such
Intercreditor Agreement shall be effective unless consented to by Owner and
(ii)
no amendment, modification or supplement to, or substitution or replacement
of,
such Intercreditor Agreement occurring after the date on which an Equipment
Note
ceases to be held of record by the Subordination Agent shall be effective as
against any Note Holder of such Equipment Note in relation to clauses (ii)
and
(iii) of the penultimate sentence of Section 2.07 of the Trust Indenture unless
such amendment, modification, supplement, substitution or replacement has been
consented to by such Note Holder (after which the same shall be effective
against any subsequent Note Holders of such Equipment Note).
“International
Interest”
is
defined in the Cape Town Treaty.
“International
Registry”
is
defined in the Cape Town Treaty.
“IRS”
means
the Internal Revenue Service of the United States or any Government Entity
succeeding to the functions of such Internal Revenue Service.
“Issuance
Date”
means
April 10, 2007.
“Law”
means
(a) any constitution, treaty, statute, law, decree, regulation, order, rule
or
directive of any Government Entity, and (b) any judicial or administrative
interpretation or application of, or decision under, any of the
foregoing.
“Lien”
means
any mortgage, pledge, lien, charge, claim, encumbrance, lease or security
interest affecting the title to or any interest in property.
“Liquidity
Facilities”
means
the two Revolving Credit Agreements (consisting of a separate Revolving Credit
Agreement with the Liquidity Provider with respect to the Class A Pass
Through Trust and the Class B Pass Through Trust) between the Subordination
Agent, as borrower, and the Liquidity Provider, each dated as of the Issuance
Date, provided
that,
for purposes of any obligation of Owner, no amendment, modification or
supplement to, or substitution or replacement of, any such Liquidity Facility
shall be effective unless consented to by Owner.
“Liquidity
Provider”
means
RZB Finance LLC, a limited liability company organized under the laws of
Delaware, as “Class A Liquidity Provider” and “Class B Liquidity Provider” (as
such terms are defined in the Intercreditor Agreement).
“Majority
in Interest of Note Holders”
means
as of a particular date of determination, the holders of a majority in aggregate
unpaid Original Amount of all Equipment Notes outstanding as of such date
(excluding any Equipment Notes held by Owner or any of its Affiliates (unless
all Equipment Notes then outstanding shall be held by Owner or any Affiliate
of
Owner); provided
that for
the purposes of directing any action or casting any vote or giving any consent,
waiver or instruction hereunder, any Note Holder of an Equipment Note or
Equipment Notes may allocate, in such Note Holder’s sole discretion, any
fractional portion of the principal amount of such Equipment Note or Equipment
Notes in favor of or in opposition to any such action, vote, consent, waiver
or
instruction.
“Make-Whole
Amount”
means,
with respect to any Equipment Note, an amount (as determined by an independent
investment bank of national standing) equal to the excess, if any, of (a) the
present value of the remaining scheduled payments of principal and interest
to
maturity of such Equipment Note computed by discounting such payments on a
semiannual basis on each Payment Date (assuming a 360-day year of twelve 30-day
months) using a discount rate equal to the Treasury Yield plus the Make-Whole
Spread, over
(b) the
outstanding principal amount of such Equipment Note plus accrued interest to
the
date of determination. For purposes of determining the Make-Whole Amount,
“Treasury Yield” means, at the date of determination with respect to any
Equipment Note, the interest rate (expressed as a decimal and, in the case
of
United States Treasury bills, converted to a bond equivalent yield) determined
to be the per annum rate equal to the semiannual yield to maturity for United
States Treasury securities maturing on the Average Life Date of such Equipment
Note and trading in the public securities markets either as determined by
interpolation between the most recent weekly average yield to
maturity
for two series of United States Treasury securities, trading in the public
securities markets, (A) one maturing as close as possible to, but earlier than,
the Average Life Date of such Equipment Note and (B) the other maturing as
close
as possible to, but later than, the Average Life Date of such Equipment Note,
in
each case as published in the most recent H.15(519) or, if a weekly average
yield to maturity for United States Treasury securities maturing on the Average
Life Date of such Equipment Note is reported in the most recent H.15(519),
such
weekly average yield to maturity as published in such H.15(519). “H.15(519)”
means the weekly statistical release designated as such, or any successor
publication, published by the Board of Governors of the Federal Reserve System.
The date of determination of a Make-Whole Amount shall be the third Business
Day
prior to the applicable payment or redemption date and the “most recent
H.15(519)” means the H.15(519) published prior to the close of business on the
third Business Day prior to the applicable payment or redemption
date.
“Make-Whole
Spread”
means
(i) in the case of Series A Equipment Notes, 0.25%, (ii) in the case of Series
B
Equipment Notes, 0.40%, (iii) in the case of Series C Equipment Notes, 0.50%,
and (iv) in the case of any Additional Series, the percentage specified in
Schedule I hereto (as amended at the time of original issuance of such
Additional Series) as the “Make-Whole Spread” for such Additional
Series.
“Material
Adverse Change”
means,
with respect to any person, any event, condition or circumstance that materially
and adversely affects such person’s business or consolidated financial
condition, or its ability to observe or perform its obligations, liabilities
and
agreements under the Operative Agreements.
“Minimum
Liability Insurance Amount”
is
defined in Schedule 3 to the Participation Agreement.
“Mortgaged
Property”
is
defined in Section 3.03 of the Trust Indenture.
“Mortgagee”
means
Wilmington Trust Company, a Delaware banking corporation, not in its individual
capacity but solely as mortgagee under the Trust Indenture.
“Non-U.S.
Person”
means
any Person other than a United States person, as defined in Section 7701(a)(30)
of the Code.
“Note
Holder”
means
at any time each registered holder of one or more Equipment Notes.
“Note
Purchase Agreement”
means
the Note Purchase Agreement, dated as of the Issuance Date, among Continental
Airlines, Inc., the Subordination Agent, the Escrow Agent, the Paying Agent
and
the Pass Through Trustee under each Pass Through Trust Agreement providing
for,
among other things, the issuance and sale of certain equipment
notes.
“NY
UCC”
means
the UCC as in effect on the date of determination in the State of New
York.
“Officer’s
Certificate”
means,
in respect of any party to the Participation Agreement, a certificate signed
by
the Chairman, the President, any Vice President (including those with varying
ranks such as Executive, Senior, Assistant or Staff Vice President), the
Treasurer or the Secretary of such party.
“Operative
Agreements”
means,
collectively, the Participation Agreement, the Trust Indenture, the initial
Trust Indenture Supplement, the Bills of Sale, and the Equipment
Notes.
“Operative
Indentures”
means
each of the indentures under which notes have been issued and purchased by
the
Pass Through Trustees pursuant to the Note Purchase Agreement (whether before
or
after the date of this Trust Indenture).
“Original
Amount,”
with
respect to an Equipment Note, means the stated original principal amount of
such
Equipment Note and, with respect to all Equipment Notes, means the aggregate
stated original principal amounts of all Equipment Notes.
“Owner
Person”
means
Owner, any lessee, assignee, successor or other user or person in possession
of
the Aircraft, Airframe or an Engine with or without color of right, or any
Affiliate of any of the foregoing (excluding any Tax Indemnitee or any related
Tax Indemnitee with respect thereto, or any person using or claiming any rights
with respect to the Aircraft, Airframe or an Engine directly by or through
any
of the persons in this parenthetical).
“Participation
Agreement”
means
the Participation Agreement [____], dated as of [______ __, 20__,] among Owner,
the Applicable Pass Through Trustees, the Subordination Agent and
Mortgagee.
“Parts”
means
all appliances, parts, components, instruments, appurtenances, accessories,
furnishings, seats and other equipment of whatever nature (other than (a)
Engines or engines, and (b) any Removable Part leased by Owner from a third
party or subject to a security interest granted to a third party), that may
from
time to time be installed or incorporated in or attached or appurtenant to
the
Airframe or any Engine or removed therefrom unless the Lien of the Trust
Indenture shall not be applicable thereto in accordance with Section 4.04 of
the
Trust Indenture.
“Pass
Through Agreements”
means
the Pass Through Trust Agreements, the Note Purchase Agreement, the Deposit
Agreements, the Escrow Agreements, the Intercreditor Agreement, the Liquidity
Facilities and the Fee Letters referred to in Section 2.03 of each of the
Liquidity Facilities, provided that no amendment, modification or supplement
to,
or substitution or replacement of, any such Fee Letter shall be effective for
purposes of any obligation of Owner, unless consented to by Owner.
“Pass
Through Certificates”
means
the pass through certificates issued by the Pass Through Trusts (and any other
pass through certificates for which such pass through certificates may be
exchanged).
“Pass
Through Trust”
means
each of the three separate pass through trusts created under the Pass Through
Trust Agreements.
“Pass
Through Trust Agreement”
means
each of the three separate Trust Supplements, together in each case with the
Basic Pass Through Trust Agreement, each dated as of the Issuance Date by and
between the Owner and a Pass Through Trustee, provided, that, for purposes
of
any obligation of Owner, no amendment, modification or supplement to, or
substitution or replacement of, any such Agreement shall be effective unless
consented to by Owner.
“Pass
Through Trustee”
means
Wilmington Trust Company, a Delaware banking corporation, in its capacity as
trustee under each Pass Through Trust Agreement.
“Pass
Through Trustee Agreements”
means
the Participation Agreement, the Pass Through Trust Agreements, the Note
Purchase Agreement, the Deposit Agreements, the Escrow Agreements, and the
Intercreditor Agreement.
“Paying
Agent”
means
Wilmington Trust Company, as paying agent under each of the Escrow
Agreements.
“Payment
Date”
means
each April 19 and December 19, commencing on [_____________].
“Payment
Due Rate”
means
(a) with respect to (i) any payment made to a Note Holder under any
Series of Equipment Notes, the Debt Rate applicable to such Series plus 2%
and
(ii) any other payment made under any Operative Agreement to any other
Person, the Debt Rate applicable to such payment plus 2% or, if less,
(b) the maximum rate permitted by applicable law.
“Permitted
Air Carrier”
means
(i) any manufacturer of airframes or aircraft engines, or any Affiliate of
a
manufacturer of airframes or aircraft engines, (ii) any Permitted Foreign Air
Carrier, (iii) any person approved in writing by Mortgagee or (iv) any U.S.
Air
Carrier.
“Permitted
Country”
means
any country listed on Schedule 4 to the Participation Agreement.
“Permitted
Foreign Air Carrier”
means
any air carrier with its principal executive offices in any Permitted Country
and which is authorized to conduct commercial airline operations and to operate
jet aircraft similar to the Aircraft under the applicable Laws of such Permitted
Country.
“Permitted
Government Entity”
means
(i) the U.S. Government or (ii) any Government Entity if the Aircraft is then
registered under the laws of the country of such Government Entity.
“Permitted
Lien”
means
(a) the rights of Mortgagee under the Operative Agreements, or of any Permitted
Lessee under any Permitted Lease; (b) Liens attributable to Mortgagee (both
in
its capacity as trustee under the Trust Indenture and in its individual
capacity); (c) the rights of others under agreements or arrangements to the
extent expressly permitted by the terms of Section 4.02(b) or 4.04 of the Trust
Indenture; (d) Liens of Taxes of Owner (and its U.S. federal tax law
consolidated group), or Liens for Taxes of any Tax Indemnitee (and its U.S.
federal tax law consolidated group) for which Owner is obligated to indemnify
such Tax Indemnitee under any of the Operative Agreements, in any such case
either not yet due or being contested in good faith by appropriate proceedings
so long as such Liens and such proceedings do not involve any material risk
of
the sale, forfeiture or loss of the Aircraft, the Airframe, or any Engine or
the
interest of Mortgagee therein or impair the Lien of the Trust Indenture; (e)
materialmen’s, mechanics’, workers’, repairers’, employees’ or other like Liens
arising in the ordinary course of business for amounts the payment of which
is
either not yet delinquent for more than 60 days or is being contested in good
faith by appropriate proceedings, so long as such Liens and such proceedings
do
not involve any material risk of the sale, forfeiture or loss of the Aircraft,
the Airframe, or any Engine or the interest of Mortgagee therein or impair
the
Lien of the Trust Indenture; (f) Liens arising out of any judgment or award
against Owner (or any Permitted Lessee), so long as such judgment shall, within
60 days after the entry thereof, have been discharged or vacated, or execution
thereof stayed pending appeal or shall have been discharged, vacated or reversed
within 60 days after the expiration of such stay, and so long as during any
such
60 day period there is not, or any such judgment or award does not involve,
any
material risk of the sale, forfeiture or loss of the Aircraft, the Airframe,
or
any Engine or the interest of Mortgagee therein or impair the Lien of the Trust
Indenture; (g) any other Lien with respect to which Owner (or any Permitted
Lessee) shall have provided a bond, cash collateral or other security adequate
in the reasonable opinion of Mortgagee.
“Permitted
Lease”
means
a
lease permitted under Section 4.02(b) of the Trust Indenture.
“Permitted
Lessee”
means
the lessee under a Permitted Lease.
“Persons”
or
“persons”
means
individuals, firms, partnerships, joint ventures, trusts, trustees, Government
Entities, organizations, associations, corporations, limited liability
companies, government agencies, committees, departments, authorities and other
bodies, corporate or incorporate, whether having distinct legal status or not,
or any member of any of the same.
“Plan”
means
any employee benefit plan within the meaning of Section 3(3) of ERISA, or any
plan within the meaning of Section 4975(e)(1) of the Code.
“Prospective
International Interest”
is
defined in the Cape Town Treaty.
“Purchase
Agreement”
means
the Purchase Agreement No. 1951, dated as of July 23, 1996, between Airframe
Manufacturer and Owner, as amended (including all exhibits thereto, together
with all letter agreements entered into that by their terms constitute part
of
such Purchase Agreement), to the extent included in the Granting Clause (2)
of
the Trust Indenture.
“QIB”
is
defined in Section 2.08 of the Trust Indenture.
“Related
Additional Series Equipment Note”
means,
with respect to any particular series of Additional Series Equipment Notes
and
as of any date, an “Additional Series Equipment Note”, as defined in each
Related Indenture, having the same designation (i.e.,
“Series
D”, “Series E” or the like) as such series of Additional Series Equipment Notes,
but only if as of such date it is held by the “Subordination Agent” under the
“Intercreditor Agreement”, as such terms are defined in such Related
Indenture.
“Related
Equipment Note”
means,
as of any date, an “Equipment Note” as defined in each Related Indenture, but
only if as of such date it is held by the “Subordination Agent” under the
“Intercreditor Agreement”, as such terms are defined in such Related
Indenture.
“Related
Indenture”
means
each Operative Indenture (other than the Trust Indenture).
“Related
Indenture Bankruptcy Default”
means
any “Indenture Event of Default” under Section 5.01(v), (vi) or (vii) of
any Related Indenture, determined without giving effect to any applicable grace
period.
“Related
Indenture Event of Default”
means
any “Indenture Event of Default” under any Related Indenture.
“Related
Make-Whole Amount”
means
the “Make-Whole Amount”, as defined in each Related Indenture.
“Related
Mortgagee”
means
the “Mortgagee” as defined in each Related Indenture.
“Related
Note Holder”
means
a
registered holder of a Related Equipment Note.
“Related
Secured Obligations”
means,
as of any date, the outstanding “Original Amount”, as defined in each Related
Indenture, of the Related Equipment Notes issued under such Related Indenture,
the accrued and unpaid interest due thereon in accordance with such Related
Indenture as of such date, and the Related Make-Whole Amount, if any, due with
respect thereto in accordance with such Related Indenture.
“Related
Series A Equipment Note”
means,
as of any date, a “Series A Equipment Note”, as defined in each Related
Indenture, but only if as of such date it is held by the “Subordination Agent”
under the “Intercreditor Agreement”, as such terms are defined in such Related
Indenture.
“Related
Series B Equipment Note”
means,
as of any date, a “Series B Equipment Note”, as defined in each Related
Indenture, but only if as of such date it is held by the “Subordination Agent”
under the “Intercreditor Agreement”, as such terms are defined in such Related
Indenture.
“Related
Series C Equipment Note”
means,
as of any date, a “Series C Equipment Note”, as defined in each Related
Indenture, but only if as of such date it is held by the “Subordination Agent”
under the “Intercreditor Agreement”, as such terms are defined in such Related
Indenture.
“Removable
Part”
is
defined in Section 4.04(d) of the Trust Indenture.
“Replacement
Airframe”
means
any airframe substituted for the Airframe pursuant to Article IV of the Trust
Indenture.
“Replacement
Engine”
means
an engine substituted for an Engine pursuant to Article IV of the Trust
Indenture.
“SEC”
means
the Securities and Exchange Commission of the United States, or any Government
Entity succeeding to the functions of such Securities and Exchange
Commission.
“Section
1110”
means
11 U.S.C. Section 1110 of the Bankruptcy Code or any successor or analogous
section of the federal bankruptcy law in effect from time to time.
“Secured
Obligations”
is
defined in Section 2.06 of the Trust Indenture.
“Securities
Account”
is
defined in Section 3.07 of the Trust Indenture.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Security”
means
a
“security” as defined in Section 2(l) of the Securities Act.
“Senior
Holder”
is
defined in Section 2.13(c) of the Trust Indenture.
“Series”
means
any of Series A, Series B, Series C or any Additional Series.
“Series
A”
or
“Series
A Equipment Notes”
means
Equipment Notes issued under the Trust Indenture and designated as “Series A”
thereunder, in the Original Amount and maturities and bearing interest as
specified in Schedule I to the Trust Indenture under the heading “Series
A.”
“Series
B”
or
“Series
B Equipment Notes”
means
Equipment Notes issued under the Trust Indenture and designated as “Series B”
thereunder, in the Original Amount and maturities and bearing interest as
specified in Schedule I to the Trust Indenture under the heading “Series
B.”
“Series
C”
or
“Series
C Equipment Notes”
means
Equipment Notes issued under the Trust Indenture and designated as “Series C”
thereunder, in the Original Amount and maturities and bearing interest as
specified in Schedule I to the Trust Indenture under the heading “Series
C.”
“Similar
Aircraft”
means
a
Boeing Model [insert model reference the same as the Aircraft]
aircraft.
“Special
Default”
means
(i) the failure by Owner to pay any amount of principal of or interest on any
Equipment Note when due or (ii) the occurrence of any Default or Event of
Default referred to in Section 5.01(v), (vi) or (vii).
“Subordination
Agent”
means
Wilmington Trust Company, as subordination agent under the Intercreditor
Agreement, or any successor thereto.
“Tax
Indemnitee”
means
(a) WTC and Mortgagee, (b) each separate or additional trustee appointed
pursuant to the Trust Indenture, (c) each Note Holder and (d) the respective
successors, assigns, agents and servants of the foregoing.
“Taxes”
means
all license, recording, documentary, registration and other similar fees and
all
taxes, levies, imposts, duties, charges, assessments or withholdings of any
nature whatsoever imposed by any Taxing Authority, together with any penalties,
additions to tax, fines or interest thereon or additions thereto.
“Taxing
Authority”
means
any federal, state or local government or other taxing authority in the United
States, any foreign government or any political subdivision or taxing authority
thereof, any international taxing authority or any territory or possession
of
the United States or any taxing authority thereof.
“Threshold
Amount”
is
defined in Schedule 3 to the Participation Agreement.
“Transaction
Expenses”
means
all costs and expenses incurred by Mortgagee in connection with (a) the
preparation, execution and delivery of the Operative Agreements and the
recording or filing of any documents, certificates or instruments in accordance
with any Operative Agreement, including, without limitation, the FAA Filed
Documents and the Financing Statements, (b) the initial fee of Mortgagee under
the Trust Indenture and (c) the reasonable fees and disbursements of counsel
for
each Mortgagee and special counsel in Oklahoma City, Oklahoma, in each case,
in
connection with the Closing.
“Transactions”
means
the transactions contemplated by the Participation Agreement.
“Transfer”
means
the transfer, sale, assignment or other conveyance of all or any interest in
any
property, right or interest.
“Transferee”
means
a
person to which any Note Holder purports or intends to Transfer any or all
of
its right, title or interest in the Equipment Note, as described in Section
9 of
the Participation Agreement.
“Trust
Indenture”
means
the Trust Indenture and Mortgage [____], dated as of the date of the
Participation Agreement between Owner and Mortgagee.
“Trust
Indenture Supplement”
means
a
Trust Indenture and Mortgage Supplement, substantially in the form of Exhibit
A
to the Trust Indenture, with appropriate modifications to reflect the purpose
for which it is being used.
“Trust
Supplement”
means
an agreement supplemental to the Basic Pass Through Trust Agreement pursuant
to
which (i) a separate trust is created for the benefit of the holders of the
Pass
Through Certificates of a class, (ii) the issuance of the Pass Through
Certificates of such Class representing fractional undivided interests in such
trust is authorized and (iii) the terms of the Pass Through Certificates of
such
class are established.
“UCC”
means
the Uniform Commercial Code as in effect in any applicable
jurisdiction.
“United
States”
or
“U.S.”
means
the United States of America; provided that for geographic purposes, “United
States” means, in aggregate, the 50 states and the District of Columbia of the
United States of America.
“U.S.
Air Carrier”
means
any United States air carrier that is a Citizen of the United States holding
an
air carrier operating certificate issued pursuant to chapter 447 of title 49
of
the United States Code for aircraft capable of carrying 10 or more individuals
or 6000 pounds or more of cargo, and as to which there is in force an air
carrier operating certificate issued pursuant to Part 121 of the FAA
Regulations, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provisions therefor or in the
absence thereof.
“U.S.
Government”
means
the federal government of the United States, or any instrumentality or agency
thereof the obligations of which are guaranteed by the full faith and credit
of
the federal government of the United States.
“U.S.
Person”
means
any Person described in Section 7701 (a)(30) of the Code.
“Weighted
Average Life to Maturity”
means,
with respect to any specified Debt, at the time of the determination thereof
the
number of years obtained by dividing the then Remaining Dollar-years of such
Debt by the then outstanding principal amount of such Debt. The term “Remaining
Dollar-years” shall mean the amount obtained by (1) multiplying the amount of
each then-remaining principal payment on such Debt by the number of years
(calculated at the nearest one-twelfth) that will elapse between the date of
determination of the Weighted Average Life to Maturity of such Debt and the
date
of that required payment and (2) totaling all the products obtained in clause
(1) above.
“Wet
Lease”
means
any arrangement whereby Owner or a Permitted Lessee agrees to furnish the
Aircraft, Airframe or any Engine to a third party pursuant to which the
Aircraft, Airframe or Engine shall at all times be in the operational control
of
Owner or a Permitted Lessee, provided that Owner’s obligations under the Trust
Indenture shall continue in full force and effect notwithstanding any such
arrangement.
“WTC”
means
Wilmington Trust Company, a Delaware banking corporation, not in its capacity
as
Mortgagee under the Trust Indenture, but in its individual
capacity.
|
ANNEX
B - INSURANCE
TRUST
INDENTURE [__]
|
INSURANCE
[OMITTED
AS CONTAINING CONFIDENTIAL FINANCIAL INFORMATION]
TO
TRUST
INDENTURE AND MORTGAGE
TRUST
INDENTURE AND MORTGAGE SUPPLEMENT
This
TRUST INDENTURE AND MORTGAGE SUPPLEMENT NO. __, dated [______________ ___,
____]
(herein called this “Trust Indenture Supplement”) of CONTINENTAL AIRLINES, INC.,
as Owner (the “Owner”).
W
I T N E S S E T H:
WHEREAS,
the Trust Indenture and Mortgage [____], dated as of [______ __, 20__,] (as
amended and supplemented, the “Trust Indenture”) between the Owner and
Wilmington Trust Company, as Mortgagee (the “Mortgagee”), provides for the
execution and delivery of a supplement thereto substantially in the form hereof,
which shall particularly describe the Aircraft, and shall specifically mortgage
such Aircraft to the Mortgagee; and
WHEREAS,
the Trust Indenture relates to the Airframe and Engines described below, and
a
counterpart of the Trust Indenture is attached hereto and made a part hereof
and
this Trust Indenture Supplement, together with such counterpart of the Trust
Indenture, is being filed for recordation on the date hereof with the FAA as
one
document;
NOW,
THEREFORE, this Trust Indenture Supplement WITNESSETH that the Owner hereby
confirms that the Lien of the Trust Indenture on the Collateral covers all
of
Owner’s right, title and interest in and to the following described property and
that it hereby grants to the Security Trustee an “International Interest” (as
defined in the Cape Town Convention on International Interests in Mobile
Equipment and related Aircraft Equipment Protocol, as in effect in the United
States) in the following airframe and engines:
AIRFRAME
One
airframe identified as follows:
|
Manufacturer
|
Model
|
FAA
Registration
Number
|
Manufacturer’s
Serial
Number
|
|||
|
The
Boeing Company
|
together
with all of the Owner’s right, title and interest in and to all Parts of
whatever nature, whether now owned or hereinafter acquired and which are from
time to time incorporated or installed in or attached to said
airframe.
AIRCRAFT
ENGINES
Two
aircraft engines, each such engine being a jet propulsion aircraft engine with
at least 1750 lb of thrust or its equivalent, identified as
follows:
|
Manufacturer
|
Manufacturer’s
Model
|
Serial
Number
|
||
together
with all of Owner’s right, title and interest in and to all Parts of whatever
nature, whether now owned or hereafter acquired and which are from time to
time
incorporated or installed in or attached to either of such engines.
Together
with all of Owner’s right, title and interest in and to (a) all Parts of
whatever nature, which from time to time are included within the definition
of
“Airframe” or “Engine”, whether now owned or hereafter acquired, including all
substitutions, renewals and replacements of and additions, improvements,
accessions and accumulations to the Airframe and Engines (other than additions,
improvements, accessions and accumulations which constitute appliances, parts,
instruments, appurtenances, accessories, furnishings or other equipment excluded
from the definition of Parts) and (b) all Aircraft Documents.
TO
HAVE
AND TO HOLD all and singular the aforesaid property unto the Mortgagee, its
successors and assigns, in trust for the equal and proportionate benefit and
security of the Note Holders and the Indenture Indemnitees, except as provided
in Section 2.13 and Article III of the Trust Indenture without any preference,
distinction or priority of any one Equipment Note over any other by reason
of
priority of time of issue, sale, negotiation, date of maturity thereof or
otherwise for any reason whatsoever, and for the uses and purposes and subject
to the terms and provisions set forth in the Trust Indenture.
This
Trust Indenture Supplement shall be construed as supplemental to the Trust
Indenture and shall form a part thereof. The Trust Indenture is each hereby
incorporated by reference herein and is hereby ratified, approved and
confirmed.
AND,
FURTHER, the Owner hereby acknowledges that the Aircraft referred to in this
Trust Indenture Supplement has been delivered to the Owner and is included
in
the property of the Owner subject to the pledge and mortgage thereof under
the
Trust Indenture.
* * *
IN
WITNESS WHEREOF, the Owner has caused this Trust Indenture Supplement to be
duly
executed by one of its officers, thereunto duly authorized, on the day and
year
first above written.
|
CONTINENTAL
AIRLINES, INC.
|
|
|
By:___________________________________
|
|
|
Name:
|
|
|
Title:
|
|
Original
Amount
|
Interest
Rate
|
||
|
Series
A:
|
5.983%
|
||
|
Series
B:
|
6.903%
|
||
|
Series
C:
|
7.339%
|
||
|
Total:
|
Trust
Indenture and Mortgage
Equipment
Note Amortization
|
Payment
Date
|
Percentage
of Original
Amount
to be Paid
|
|
March
23,
2007
CONTINENTAL
AIRLINES, INC.
1600
Smith Street
Houston,
TX 77002
|
Re:
|
Preliminary
Prospectus Supplement, dated March 27, 2007, to
the
Prospectus dated April 10, 2006, included in Registration
Statement
No. 333-133187 of Continental Airlines,
Inc.
|
Ladies
and Gentlemen:
We
consent to the use of the report, dated as of March 15, 2007 prepared by
us with
respect to the aircraft referred to in the Preliminary Prospectus Supplement
referred to above, to the summary of such report in the text under the headings
“Prospectus Supplement Summary—Equipment Notes and the Aircraft”, “Risk
Factors—Risk Factors Relating to the Certificates and the Offering— The
Appraisals Are Only Estimates of Aircraft Value” and “Description of the
Aircraft and the Appraisals—The Appraisals” in such Preliminary Prospectus
Supplement and to the references to our name under the headings “Description of
the Aircraft and the Appraisals—The Appraisals” and “Experts” in such
Preliminary Prospectus Supplement. We also consent to such use, summary and
references in the Final Prospectus Supplement relating to the offering described
in such Preliminary Prospectus Supplement, to the extent such use, summary
and
references are unchanged.
| Sincerely, | |||
| AIRCRAFT INFORMATION SERVICES, INC. | |||
| /s/ Fred Bearden | |||
|
Name: Fred Bearden Title:
CEO
|
| Headquarters: 26072 Merit Circle, Suite 123, Laguna Hills, CA 92653 |
| TEL: 949-582-8888 FAX: 949-582-8887 E-MAIL: mail@AISI.aero |
BK
Associates, Inc.
1295
Northern Boulevard
Manhasset,
New York 11030
(516)
365-6272 ·
Fax
(516) 365-6287
March
23,
2007
CONTINENTAL
AIRLINES, INC.
1600
Smith Street
Houston,
TX 77002
|
Re:
|
Preliminary
Prospectus Supplement, dated March 27, 2007, to
the
Prospectus dated April 10, 2006, included in Registration
Statement
No. 333-133187 of Continental Airlines,
Inc.
|
Ladies
and Gentlemen:
We
consent to the use of the report, dated as of March 16, 2007 prepared by
us with
respect to the aircraft referred to in the Preliminary Prospectus Supplement
referred to above, to the summary of such report in the text under the headings
“Prospectus Supplement Summary—Equipment Notes and the Aircraft”, “Risk
Factors—Risk Factors Relating to the Certificates and the Offering— The
Appraisals Are Only Estimates of Aircraft Value” and “Description of the
Aircraft and the Appraisals—The Appraisals” in such Preliminary Prospectus
Supplement and to the references to our name under the headings “Description of
the Aircraft and the Appraisals—The Appraisals” and “Experts” in such
Preliminary Prospectus Supplement. We also consent to such use, summary and
references in the Final Prospectus Supplement relating to the offering described
in such Preliminary Prospectus Supplement, to the extent such use, summary
and
references are unchanged.
| Sincerely, | |||
| BK ASSOCIATES, INC. | |||
| /s/ R.L. Brittonn | |||
|
R. L. Britton Vice
President
ISTAT
Senior Certified Appraiser
|
RLB/kf
March
23,
2007
CONTINENTAL
AIRLINES, INC.
1600
Smith Street
Houston,
TX 77002
|
Re:
|
Preliminary
Prospectus Supplement, dated March 27, 2007, to
the
Prospectus dated April 10, 2006, included in Registration
Statement
No. 333-133187 of Continental Airlines,
Inc.
|
Ladies
and Gentlemen:
We
consent to the use of the report, dated as of March 23, 2007 prepared by
us with
respect to the aircraft referred to in the Preliminary Prospectus Supplement
referred to above, to the summary of such report in the text under the headings
“Prospectus Supplement Summary—Equipment Notes and the Aircraft”, “Risk
Factors—Risk Factors Relating to the Certificates and the Offering— The
Appraisals Are Only Estimates of Aircraft Value” and “Description of the
Aircraft and the Appraisals—The Appraisals” in such Preliminary Prospectus
Supplement and to the references to our name under the headings “Description of
the Aircraft and the Appraisals—The Appraisals” and “Experts” in such
Preliminary Prospectus Supplement. We also consent to such use, summary and
references in the Final Prospectus Supplement relating to the offering described
in such Preliminary Prospectus Supplement, to the extent such use, summary
and
references are unchanged.
| Sincerely, |
| MORTEN BEYER & AGNEW, INC. |
| /s/ Stephen P. Rehrmann |
|
Name: Stephen P. Rehrmann Title: Vice
President - Appraisal Group
|