e60709081frm8k.htm
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):
July 1,
2009
CONTINENTAL
AIRLINES, INC.
(Exact
name of registrant as specified in its charter)
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:
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o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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o Soliciting
material pursuant to Rule 14a−12 under the Exchange Act (17 CFR
240.14a−12)
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o Pre−commencement
communications pursuant to Rule 14d−2(b) under the Exchange Act (17 CFR
240.14d−2(b))
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o Pre−commencement
communications pursuant to Rule 13e−4(c) under the Exchange Act (17 CFR
240.13e−4(c))
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Item
1.01 Entry into a Material
Definitive Agreement.
On July
1, 2009, Continental Airlines, Inc. (the “Company”), Wilmington Trust Company,
as Subordination Agent and pass through trustee under a certain pass through
trust newly formed by the Company (the “Trustee”), Wells Fargo Bank Northwest,
National Association, as Escrow Agent under the Escrow Agreement (as defined
below), and Wilmington Trust Company, as Paying Agent under the Escrow
Agreement, entered into the Note Purchase Agreement, dated as of July 1, 2009
(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 $389,687,000 to finance (i) 12 Boeing
aircraft currently owned by the Company (collectively, the “Owned Aircraft”) and
(ii) five new Boeing aircraft (collectively, the “New Aircraft” and,
together with the Owned Aircraft, the “Aircraft”) from among seven Boeing
aircraft scheduled for delivery from July 2009 through September
2009. Pursuant to the Note Purchase Agreement, at the financing 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 Series A Equipment Notes bearing interest
at the rate of 9.00% per annum, in the aggregate principal amount (once all the
Equipment Notes have been issued) equal to $389,687,000. The
Equipment Notes will be purchased by the Trustee, using the proceeds from the
sale of Pass Through Certificates, Series 2009-1A (the
“Certificates”).
Pending
the purchase of the Equipment Notes, the proceeds from the sale of the
Certificates were placed in escrow by the Trustee pursuant to an Escrow and
Paying Agent Agreement, dated as of July 1, 2009, among Wells Fargo Bank
Northwest, National Association, Morgan Stanley & Co. Incorporated, Goldman,
Sachs & Co., Calyon Securities (USA) Inc. and the Trustee (the “Escrow
Agreement”). The escrowed funds were deposited with The Bank of New
York Mellon under a Deposit Agreement relating to the Certificates.
The
interest on the Equipment Notes and the escrowed funds is payable semiannually
on each January 8 and July 8, beginning on January 8, 2010. The
principal payments on the Equipment Notes are scheduled on January 8 and July 8
in certain years, beginning on January 8, 2010. The final payments
will be due on July 8, 2016. 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. 333-158781) (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 Agreement”, “Description of the
Escrow Agreement”, “Description of the Liquidity Facility”, “Description of the
Intercreditor Agreement”, “Description of the Equipment Notes” and
“Underwriting” contained in the Company’s final Prospectus Supplement, dated
June 16, 2009 (the “Prospectus Supplement”), to the Prospectus, dated April 24,
2009, filed with the Securities and Exchange Commission on June 18, 2009
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 June 16, 2009,
to the Prospectus, dated April 24, 2009, 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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July
2, 2009
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By
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/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 June 16, 2009, among Morgan Stanley & Co.
Incorporated, Goldman, Sachs & Co. and Calyon Securities (USA) Inc.,
as Underwriters, The Bank of New York Mellon, as Depositary, and
Continental Airlines, Inc.
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4.1
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Trust
Supplement No. 2009-1A-O, dated as of July 1, 2009, 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. 2009-1A-S, dated as of July 1, 2009, 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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Revolving
Credit Agreement (2009-1A), dated as of July 1, 2009, between Wilmington
Trust Company, as Subordination Agent, as Borrower, and Goldman Sachs Bank
USA, as Liquidity Provider
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4.4
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General
Guarantee Agreement, dated December 1, 2008, issued by Goldman Sachs
Group, Inc.
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4.5
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Intercreditor
Agreement, dated as of July 1, 2009, among Wilmington Trust Company, as
Trustee, Goldman Sachs Bank USA, as Liquidity Provider, and Wilmington
Trust Company, as Subordination Agent and
Trustee
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4.6
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Deposit
Agreement (Class A), dated as of July 1, 2009, between Wells Fargo Bank
Northwest, National Association, as Escrow Agent, and The Bank of New York
Mellon, as Depositary
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4.7
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Escrow
and Paying Agent Agreement (Class A), dated as of July 1, 2009 among Wells
Fargo Bank Northwest, National Association, as Escrow Agent, Morgan
Stanley & Co. Incorporated, Goldman, Sachs & Co. and Calyon
Securities (USA) Inc., as Underwriters, Wilmington Trust Company, as
Trustee, and Wilmington Trust Company, as Paying
Agent
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4.8
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Note
Purchase Agreement, dated as of July 1, 2009, among Continental Airlines,
Inc., Wilmington Trust Company, as Trustee, 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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4.9
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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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4.10
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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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4.11
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Form
of Continental Airlines Pass Through Certificate, Series 2009-1A-O
(included in Exhibit 4.1)
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23.1
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Consent
of Aircraft Information Services, Inc., dated June 16,
2009
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23.2
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Consent
of BK Associates, Inc., dated June 16,
2009
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23.3
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Consent
of Morten Beyer and Agnew, Inc., dated June 16,
2009
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e60709081ex1_1.htm
CONTINENTAL
AIRLINES, INC.
$389,687,000
Continental
Airlines Pass Through Certificates, Series 2009-1A-O
UNDERWRITING
AGREEMENT
June 16, 2009
MORGAN
STANLEY & CO. INCORPORATED
GOLDMAN,
SACHS & CO.
CALYON
SECURITIES (USA) INC.
Morgan
Stanley & Co Incorporated
1585
Broadway
New York,
New York 10036
Goldman,
Sachs & Co.
85 Broad
Street, 20th
Floor
New York,
New York 10004
Calyon
Securities (USA) Inc.
1301
Avenue of Americas
New York,
New York 10019
Ladies
and Gentlemen:
Continental
Airlines, Inc., a Delaware corporation (the “Company”), proposes
that Wilmington Trust Company, as trustee under the Original Trust (as defined
below) (the “Trustee”), issue and
sell to the underwriters named in Schedule II hereto Continental Airlines
Pass Through Certificates, Series 2009-1A-O (the “Certificates”), in
the aggregate principal amount and with the interest rate and final expected
distribution date set forth on Schedule I hereto on the terms and
conditions stated herein.
The
Certificates will be issued pursuant to a Pass Through Trust Agreement, dated as
of September 25, 1997 (the “Basic Agreement”),
between the Company and the Trustee, as supplemented with respect to the
issuance of the Certificates by a separate Pass Through Trust Supplement to be
dated as of the Closing Date (as defined below) (the “Original Trust
Supplement”), between the Company and the Trustee (the Basic Agreement as
supplemented by the Original Trust Supplement being referred to herein as the
“Original Pass Through
Trust Agreement”). The Original Trust Supplement is related to
the creation and administration of
Continental
Airlines Pass Through Trust 2009-1A-O (the “Original
Trust”). As used herein, unless the context otherwise
requires, the term “Underwriters” shall
mean the firms named as Underwriters in Schedule II, and the term “you” shall mean,
collectively, Morgan Stanley & Co. Incorporated (“MS”) and
Goldman, Sachs & Co. (“GS”).
The cash
proceeds of the offering of Certificates by the Original Trust will be paid to
Wells Fargo Bank Northwest, N.A., as escrow agent (the “Escrow Agent”), under
an Escrow and Paying Agent Agreement among the Escrow Agent, the Underwriters,
the Trustee of the Original Trust and Wilmington Trust Company, as paying agent
(the “Paying
Agent”), for the benefit of the holders of Certificates issued
by the Original Trust (the “Escrow
Agreement”). The Escrow Agent will deposit such cash proceeds
(each, a “Deposit”) with The
Bank of New York Mellon (the “Depositary”), in
accordance with a Deposit Agreement relating to the Original Trust (the “Deposit Agreement”),
and, subject to the fulfillment of certain conditions, will withdraw Deposits
upon request to allow the Trustee to purchase Equipment Notes (as defined in the
Note Purchase Agreement (as defined below)) from time to time pursuant to a Note
Purchase Agreement to be dated as of the Closing Date (the “Note Purchase
Agreement”) among the Company, Wilmington Trust Company, as Trustee of
the Original Trust, as Subordination Agent (as hereinafter defined) and as
Paying Agent, and the Escrow Agent. The Escrow Agent will issue
receipts to be attached to each related Certificate (“Escrow Receipts”)
representing each holder’s interest in amounts deposited with the Escrow Agent
with respect to the related Certificates and will pay to such holders through
the Paying Agent interest accrued on the Deposits and received by the Paying
Agent pursuant to the Deposit Agreement at a rate per annum equal to the
interest rate applicable to the corresponding Certificates.
On the
earlier of (i) the first Business Day following December 31, 2009 or, if
later, the fifth Business Day following the Delivery Period Termination Date (as
defined in the Note Purchase Agreement) and (ii) the fifth Business Day
following the occurrence of a Triggering Event (as defined in the Intercreditor
Agreement) (such Business Day, the “Trust Transfer
Date”), the Original Trust will transfer and assign all of its assets and
rights to a newly-created successor trust with substantially identical terms
except as described in the Prospectus (as hereinafter defined) (the “Successor Trust” and,
together with the Original Trust, the “Trust”) governed by
the Basic Agreement, as supplemented by a separate Pass Through Trust Supplement
(the “Successor Trust
Supplement”), between the Company and the Trustee (the Basic Agreement,
as supplemented by the Successor Trust Supplement, being referred to herein as
the “Successor Pass
Through Trust Agreement” and, together with the Original Pass Through
Trust Agreement, the “Designated
Agreements”). Each Certificate outstanding on the Trust
Transfer Date will represent the same interest in the Successor Trust as the
Certificate represented in the Original Trust. Wilmington Trust
Company initially will also act as trustee of the Successor Trust (the “Successor
Trustee”).
Certain
amounts of interest payable on the Certificates issued by the Trust will be
entitled to the benefits of a liquidity facility. Goldman Sachs Bank
USA (the “Liquidity
Provider”) will enter into a revolving credit agreement with respect to
the Trust (the “Liquidity Facility”)
to be dated as of the Closing Date for the benefit of the holders of the
Certificates issued by the Trust. The Liquidity Provider’s payment
obligations will be guaranteed by The Goldman Sachs Group, Inc., an affiliate of
the Liquidity Provider (the “Guarantor”).The
Liquidity
Provider and the holders of the Certificates will be entitled to the benefits of
an Intercreditor Agreement to be dated as of the Closing Date (the “Intercreditor
Agreement”) among the Trustee, Wilmington Trust Company, as subordination
agent and trustee thereunder (the “Subordination
Agent”), and the Liquidity Provider.
The
Company has filed with the Securities and Exchange Commission (the “Commission”) an
automatic shelf registration statement on Form S-3 (File No.333-158781)
relating to securities, including pass through certificates (the “Shelf Securities”),
to be issued from time to time by the Company. The registration
statement (including the respective exhibits thereto and the respective
documents filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “Exchange Act”), that
are incorporated by reference therein), as amended to and including the date of
this Agreement, including the information (if any) deemed to be part of the
registration statement pursuant to Rule 430B under the Securities Act (and
the Underwriters confirm that the first contract of sale of the Certificates by
the Underwriters was made on the date of this Agreement), is hereinafter
referred to as the “Registration
Statement”, and the related prospectus covering the Shelf Securities
dated April 24, 2009 filed as part of the Registration Statement, in the
form in which it has most recently been filed with the Commission on or prior to
the date of this Agreement, is hereinafter referred to as the “Basic
Prospectus”. The Basic Prospectus, as supplemented by the
final prospectus supplement specifically relating to the Certificates in the
form as first filed with the Commission pursuant to Rule 424(b) under the
Securities Act in accordance with Section 4(d) hereof is hereinafter
referred to as the “Prospectus”, and the
term “preliminary
prospectus” means any preliminary form of the Prospectus filed with the
Commission pursuant to Rule 424 under the Securities Act. For
purposes of this Agreement, (i) “free writing
prospectus” has the meaning set forth in Rule 405 under the
Securities Act and (ii) “Time of Sale
Prospectus” means the preliminary prospectus together with the free
writing prospectuses, if any, each identified in Schedule IV
hereto. As used herein, the terms “Registration Statement”, “Basic
Prospectus”, “preliminary prospectus”, “Time of Sale Prospectus” and
“Prospectus” shall include the documents, if any, incorporated by reference
therein. The terms “supplement”, “amendment” and “amend” as used herein
with respect to the Registration Statement, the Basic Prospectus, the Time of
Sale Prospectus, any preliminary prospectus or free writing prospectus shall
include all documents subsequently filed by the Company with the Commission
pursuant to the Exchange Act and incorporated by reference therein.
Capitalized
terms used but not defined in this Underwriting Agreement (the “Agreement”) shall
have the meanings specified therefor in the Original Pass Through Trust
Agreement, the Note Purchase Agreement or the Intercreditor Agreement; provided that, as
used in this Agreement, the term “Operative Agreements”
shall mean the Deposit Agreement, the Escrow Agreement, the Intercreditor
Agreement, the Liquidity Facility, the Designated Agreements, the Assignment and
Assumption Agreement, and the Financing Agreements (as defined in the Note
Purchase Agreement).
1. Representations and
Warranties. (a) The Company represents and warrants
to, and agrees with each Underwriter that:
(i) The
Company meets the requirements for use of Form S-3 under the Securities
Act; the Registration Statement has become effective; and, on the original
effective date of the Registration Statement, the Registration Statement
complied in all material respects with the requirements of the Securities Act;
no stop order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to the
knowledge of the Company, threatened by the Commission. The
Registration Statement is an “automatic shelf registration statement” (as
defined in Rule 405 under the Securities Act) and the Company is a
“well-known seasoned issuer” (as defined in Rule 405 under the Securities
Act) eligible to use the Registration Statement as an automatic shelf
registration statement, and the Company has not received notice that the
Commission objects to the use of the Registration Statement as an automatic
shelf registration statement. The Registration Statement does not, as
of the date hereof, include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading. As of its date and on the Closing
Date, the Prospectus, as amended and supplemented, if the Company shall have
made any amendment or supplement thereto, does not and will not include an
untrue statement of a material fact and does not and will not omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
Registration Statement, as of the date hereof, complies and the Prospectus
complies, and as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder. The Time of Sale Prospectus did not,
as of 3:30 p.m., Eastern Time, on the date of this Agreement (the “Applicable Time”),
and the Time of Sale Prospectus, as then amended or supplemented by the Company,
if applicable, will not as of the Closing Date, contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. Any information included in any “issuer free
writing prospectus” (as defined in Rule 433(h) under the Securities Act)
used in connection with the offering of the Certificates does not conflict with
the information contained in the Registration Statement, including any
prospectus or prospectus supplement that is part of the Registration Statement
(including pursuant to Rule 430B under the Securities Act) and
not superseded or modified. The preceding sentences do not apply to statements
in or omissions from the Registration Statement, the Time of Sale Prospectus or
the Prospectus based upon (A) written information furnished to the Company
by any Underwriter through you expressly for use therein, (B) statements or
omissions in that part of each Registration Statement which shall constitute the
Statement of Eligibility of the Trustee under the Trust Indenture Act of 1939,
as amended (the “Trust
Indenture Act”), on Form T-1, or (C) the Depositary Information
(as hereinafter defined).
(ii) The
documents incorporated by reference in the Time of Sale Prospectus or the
Prospectus pursuant to Item 12 of Form S-3 under the Securities Act,
at the time they were filed with the Commission or hereafter, during the period
mentioned in Section 4(a) hereof, are filed with the Commission, complied
or will comply, as the case may be, in all material respects with the
requirements of the Exchange Act.
(iii) The
Company is not an “ineligible issuer” in connection with the offering of the
Certificates pursuant to Rules 164, 405 and 433 under the Securities
Act. Any free writing prospectus that the Company is required to file
pursuant to Rule 433(d) under the Securities Act has been, or will be,
filed with the Commission in accordance with the requirements of the Securities
Act and the applicable rules and regulations of the Commission
thereunder. Each free writing prospectus that the Company has filed,
or is required to file, pursuant to Rule 433(d) under the Securities Act
complies or will comply in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder. Except for the free writing prospectuses, if any,
identified in Schedule IV hereto, the Company has not prepared, used or
referred to, any free writing prospectus in connection with the offering of the
Certificates.
(iv) The
Company has been duly incorporated and is an existing corporation in good
standing under the laws of the State of Delaware, with corporate power and
authority to own, lease and operate its property and to conduct its business as
described in the Time of Sale Prospectus; and the Company is duly qualified to
do business as a foreign corporation in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so qualified would
not have a material adverse effect on the condition (financial or otherwise),
business, properties or results of operations of the Company and its
consolidated subsidiaries taken as a whole (a “Continental Material Adverse
Effect”).
(v)
Each of Continental Micronesia, Inc. and Air Micronesia Inc. (together, the
“Subsidiaries”)
has been duly incorporated and is an existing corporation in good standing under
the laws of the jurisdiction of its incorporation, with corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Time of Sale Prospectus; and each Subsidiary is duly
qualified to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to be so
qualified would not have a Continental Material Adverse Effect; all of the
issued and outstanding capital stock of each Subsidiary has been duly authorized
and validly issued and is fully paid and nonassessable; and, except as described
in the Time of Sale Prospectus, each Subsidiary’s capital stock owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(vi) Except
as described in the Time of Sale Prospectus, the Company is not in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which it is a party or by which it may be bound or
to which any of its properties may be subject, except for such defaults that
would not have a Continental Material Adverse Effect. The execution,
delivery and performance of this Agreement and the Operative Agreements to which
the Company is or will be a party and the consummation by the Company of the
transactions contemplated herein and therein have been duly authorized by all
necessary corporate action of the Company and will not result in any breach of
any of the terms, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
(other
than any
lien, charge or encumbrance created under any Operative Agreement) upon any
property or assets of the Company pursuant to any indenture, loan agreement,
contract, mortgage, note, lease or other instrument to which the Company is a
party or by which the Company may be bound or to which any of the property or
assets of the Company is subject, which breach, default, lien, charge or
encumbrance, individually or in the aggregate, would have a Continental Material
Adverse Effect, nor will any such execution, delivery or performance result in
any violation of the provisions of the charter or by-laws of the Company or any
statute, any rule, regulation or order of any governmental agency or body or any
court having jurisdiction over the Company.
(vii) No
consent, approval, authorization, or order of, or filing with, any governmental
agency or body or any court is required for the valid authorization, execution
and delivery by the Company of this Agreement and the Operative Agreements to
which it is or will be a party and for the consummation of the transactions
contemplated herein and therein, except (x) such as may be required under
the Securities Act, the Trust Indenture Act, the securities or “blue sky” or
similar laws of the various states and of foreign jurisdictions or rules and
regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and
(y) filings or recordings with the Federal Aviation Administration (the
“FAA”) and
under the Uniform Commercial Code (the “UCC”) or other laws
in effect in any applicable jurisdiction governing the perfection of security
interests, which filings or recordings referred to in this clause (y), with
respect to any particular set of Financing Agreements, shall have been made, or
duly presented for filing or recordation, or shall be in the process of being
duly filed or filed for recordation, on or prior to the applicable Funding Date
(as defined in the Note Purchase Agreement) for each of the three Boeing
777-224ER aircraft, two Boeing 757-224 aircraft, three Boeing 737-824 aircraft,
four Boeing 737-724 aircraft and five Boeing 737-924ER aircraft (collectively,
the “Aircraft”)
related to such Financing Agreements.
(viii) This
Agreement has been executed and delivered by the Company and the Operative
Agreements to which the Company will be a party will be duly executed and
delivered by the Company on or prior to the Closing Date or the applicable
Funding Date, as the case may be.
(ix)
The Operative Agreements to which the Company is or will be a party, when duly
executed and delivered by the Company, assuming that such Operative Agreements
have been duly authorized, executed and delivered by, and constitute the legal,
valid and binding obligations of, each other party thereto, will constitute
valid and binding obligations of the Company enforceable in accordance with
their terms, except (w) as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors’ rights generally, (x) as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law),
(y) that the enforceability of the Indentures may also be limited by
applicable laws which may affect the remedies provided therein but which do not
affect the validity of the Indentures or make such remedies inadequate for the
practical realization of the benefits intended to be provided
thereby
and (z) with respect to indemnification and contribution provisions, as
enforcement thereof may be limited by applicable law, and subject, in the case
of the Successor Pass Through Trust Agreement, to the delayed effectiveness
thereof as set forth therein. The Basic Agreement as executed is
substantially in the form filed as an exhibit to the Company’s current report on
Form 8-K dated September 25, 1997 and has been duly qualified under
the Trust Indenture Act. The Certificates and the Designated
Agreements to which the Company is, or is to be, a party, will, upon execution
and delivery thereof, conform in all material respects to the descriptions
thereof in the Time of Sale Prospectus.
(x) The
consolidated financial statements of the Company incorporated by reference in
the Time of Sale Prospectus, together with the related notes thereto, present
fairly in all material respects the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the consolidated results of
operations and cash flows of the Company and its consolidated subsidiaries for
the periods specified. Such financial statements have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved, except as otherwise stated
therein and except that unaudited financial statements do not have all required
footnotes. The financial statement schedules, if any, incorporated by
reference in the Time of Sale Prospectus present the information required to be
stated therein.
(xi) The
Company is a “citizen of the United States” within the meaning of
Section 40102(a)(15) of Title 49 of the United States Code, as
amended, and holds an air carrier operating certificate issued pursuant to
Chapter 447 of Title 49 of the United States Code, as amended, for
aircraft capable of carrying 10 or more individuals or 6,000 pounds or more of
cargo. All of the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable.
(xii) On
or prior to the Closing Date, the issuance of the Certificates will be duly
authorized by the Trustee. When duly executed, authenticated, issued
and delivered in the manner provided for in the Original Pass Through Trust
Agreement and sold and paid for as provided in this Agreement, the Certificates
will be legally and validly issued and will be entitled to the benefits of the
Original Pass Through Trust Agreement; based on applicable law as in effect on
the date hereof, upon the execution and delivery of the Assignment and
Assumption Agreement in accordance with the Original Pass Through Trust
Agreement, the Certificates will be legally and validly outstanding under the
Successor Pass Through Trust Agreement; and when executed, authenticated, issued
and delivered in the manner provided for in the Escrow Agreement, the Escrow
Receipts will be legally and validly issued and will be entitled to the benefits
of the Escrow Agreement.
(xiii) Except
as disclosed in the Time of Sale Prospectus, the Company and the Subsidiaries
have good and marketable title to all real properties and all other properties
and assets owned by them, in each case free from liens, encumbrances and defects
except where the failure to have such title would not have a Continental
Material Adverse Effect; and except as disclosed in the Time of Sale Prospectus,
the Company and the
Subsidiaries
hold any leased real or personal property under valid and enforceable leases
with no exceptions that would have a Continental Material Adverse
Effect.
(xiv) Except
as disclosed in the Time of Sale Prospectus, there is no action, suit or
proceeding before or by any governmental agency or body or court, domestic or
foreign, now pending or, to the knowledge of the Company, threatened against the
Company or any of its subsidiaries or any of their respective properties that
individually (or in the aggregate in the case of any class of related lawsuits),
could reasonably be expected to result in a Continental Material Adverse Effect
or that could reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated by this Agreement or the Operative
Agreements.
(xv)
Except as disclosed in the Time of Sale Prospectus, no labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge of the
Company, is imminent that could reasonably be expected to have a Continental
Material Adverse Effect.
(xvi)
Each of the Company and the Subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, except to the
extent that the failure to so obtain, declare or file would not have a
Continental Material Adverse Effect.
(xvii) Except
as disclosed in the Time of Sale Prospectus, (x) neither the Company nor
any of the Subsidiaries is in violation of any statute, rule, regulation,
decision or order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or toxic
substances (collectively, “environmental laws”),
owns or operates any real property contaminated with any substance that is
subject to any environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
individually or in the aggregate is reasonably expected to have a Continental
Material Adverse Effect, and (y) the Company is not aware of any pending
investigation which might lead to such a claim that is reasonably expected to
have a Continental Material Adverse Effect.
(xviii) The
accountants that examined and issued an auditors’ report with respect to the
consolidated financial statements of the Company and the financial statement
schedules of the Company, if any, included or incorporated by reference in the
Registration Statement are independent public accountants within the meaning of
the Securities Act.
(xix) Each
preliminary prospectus filed pursuant to Rule 424 under the Securities Act
and included in the Time of Sale Prospectus, complied when so filed in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(xx) Neither
the Company nor the Original Trust is, nor (based on applicable law as in effect
on the date hereof) will the Successor Trust be, as of the execution and
delivery of the Assignment and Assumption Agreement in accordance with the
Original Pass Through Trust Agreement, an “investment company”, or an entity
“controlled” by an “investment company”, within the meaning of the Investment
Company Act of 1940, as amended (the “Investment Company
Act”), in each case required to register under the Investment Company
Act; and after giving effect to the offering and sale of the Certificates and
the application of the proceeds thereof as described in the Prospectus, neither
the Original Trust will be, nor (based on applicable law as in effect on the
date hereof) will the Successor Trust be, as of the execution and delivery of
the Assignment and Assumption Agreement in accordance with the Original Pass
Through Trust Agreement, nor will the escrow arrangements contemplated by the
Escrow Agreement result in the creation of, an “investment company”,
or an entity “controlled” by an “investment company”, as defined in the
Investment Company Act, in each case required to register under the Investment
Company Act.
(xxi) This
Agreement and the other Operative Agreements to which the Company is or will be
a party will, upon execution and delivery thereof, conform in all material
respects to the descriptions thereof contained in the Time of Sale Prospectus
(other than, in the case of the Financing Agreements, as described in the Time
of Sale Prospectus).
(xxii) None
of Aircraft Information Services, Inc., BK Associates, Inc. and Morten Beyer and
Agnew, Inc. (each, an “Appraiser” and,
collectively, the “Appraisers”) is an
affiliate of the Company or, to the knowledge of the Company, has a substantial
interest, direct or indirect, in the Company. To the knowledge of the
Company, none of the officers and directors of any of such Appraisers is
connected with the Company or any of its affiliates as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions.
(xxiii) The
Company (A) makes and keeps books, records and accounts, which, in
reasonable detail, accurately and fairly reflect the transactions and
dispositions of the material assets of the Company and its consolidated
subsidiaries and (B) maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (1) transactions are
executed in accordance with management’s general or specific authorization;
(2) transactions are recorded as necessary: (x) to permit
preparation of financial statements in conformity with generally accepted
accounting principles or any other criteria applicable to such statements and
(y) to maintain accountability for assets; (3) access to material
assets is permitted only in accordance with management’s general or specific
authorization; and (4) the recorded accountability for material assets is
compared with the existing material assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(b) The
Depositary represents and warrants to, and agrees with, each Underwriter and the
Company that:
(i) The
information pertaining to the Depositary set forth under the caption
“Description of the Deposit Agreement—Depositary” (collectively, the “Depositary
Information”) in the Time of Sale Prospectus, as amended and
supplemented, if the Company shall have furnished any amendment or supplement
thereto, does not, and will not as of the Closing Date, contain any untrue
statement of a material fact.
(ii) The
Depositary has been duly organized and is validly existing in good standing
under the laws of State of New York and is duly qualified to conduct banking
business in the State of New York, with corporate power and authority to own,
lease and operate its property, to conduct its business as described in the
Depositary Information and to enter into and perform its obligations under this
Agreement and the Deposit Agreement.
(iii) No
consent, approval, authorization, or order of, or filing with any governmental
agency or body or any court is required for the valid authorization, execution
and delivery by the Depositary of this Agreement and the Deposit Agreement and
for the consummation of the transactions contemplated herein and therein, except
such as may have been obtained.
(iv) The
execution and delivery by the Depositary of this Agreement and the Deposit
Agreement and the consummation of the transactions contemplated herein and
therein have been duly authorized by the Depositary and will not violate any
law, governmental rule or regulation or any of its organizational documents or
any order, writ, injunction or decree of any court or governmental agency
against it or the provisions of any indenture, loan agreement, contract or other
instrument to which it is a party or is bound.
(v) This
Agreement has been duly authorized, executed and delivered by the Depositary,
and the Deposit Agreement will be duly authorized, executed and delivered by the
Depositary on or prior to the Closing Date.
(vi) The
Deposit Agreement, when duly authorized, executed and delivered by the
Depositary, assuming that such Deposit Agreement has been duly authorized,
executed and delivered by, and constitutes the legal, valid and binding
obligations of, the Escrow Agent, will constitute the legal, valid and binding
obligations of the Depositary enforceable in accordance with its terms, except
(x) as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws now or hereinafter in effect
relating to creditors’ rights generally and (y) as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(vii) Payments
of interest and principal in respect of the Deposits are not subject under the
laws of the United States or any political subdivision thereof to any
withholdings or similar charges or deductions.
(c) The
parties agree that any certificate signed by a duly authorized officer of the
Company and delivered to an Underwriter, or to counsel for the Underwriters, on
the Closing Date and in connection with this Agreement or the offering of the
Certificates, shall be deemed a representation and warranty by (and only by) the
Company to the Underwriters as to the matters covered thereby.
2. Purchase, Sale and Delivery
of Certificates. (a) On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and the conditions herein set forth, the Company agrees to cause the
Trustee to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Trustee, at a purchase price of 100% of the
principal amount thereof, the aggregate principal amount of Certificates set
forth opposite the name of such Underwriter in
Schedule II. Concurrently with the issuance of the Certificates,
the Escrow Agent shall issue and deliver to the Trustee the Escrow Receipts in
accordance with the terms of the Escrow Agreement, which Escrow Receipts shall
be attached to the related Certificates.
(b) The
Company is advised by you that the Underwriters propose to make a public
offering of the Certificates as set forth in the Prospectus as soon after this
Agreement has been entered into as in your judgment is advisable. The
Company is further advised by you that the Certificates are to be offered to the
public initially at 100% of their principal amount -- the public offering price
- -- plus accrued interest, if any, and to certain dealers selected by the
Underwriters at concessions not in excess of the concessions set forth in the
Prospectus, and that the Underwriters may allow, and such dealers may reallow,
concessions not in excess of the concessions set forth in the Prospectus to
certain other dealers.
(c) As
underwriting commission and other compensation to the Underwriters for their
respective commitments and obligations hereunder in respect of the Certificates,
including their respective undertakings to distribute the Certificates, the
Company will pay to MS for the accounts of the Underwriters the amount set forth
in Schedule III hereto, which amount shall be allocated among the
Underwriters in the manner determined by MS and the Company. Such
payment will be made on the Closing Date simultaneously with the issuance and
sale of the Certificates (with attached Escrow Receipts) to the
Underwriters. Payment of such compensation shall be made by Federal
funds check or by wire transfer of immediately available funds.
(d) Delivery
of and payment for the Certificates (with attached Escrow Receipts) shall be
made at the offices of Hughes Hubbard & Reed LLP at One Battery Park Plaza,
New York, New York 10004 at 10:00 A.M. on July 1, 2009 or such other date, time
and place as may be agreed upon by the Company and MS (such date and time of
delivery and payment for the Certificates (with attached Escrow Receipts) being
herein called the “Closing
Date”). Delivery of the Certificates (with attached Escrow
Receipts) issued by the Original Trust shall be made to MS’s account at The
Depository Trust Company (“DTC”) for the
respective accounts of the several Underwriters against payment by the
Underwriters of the purchase price thereof. Payment for the
Certificates issued by the Original Trust and the related Escrow Receipts
attached thereto shall be made by the Underwriters by wire transfer of
immediately available funds to the accounts and in the manner specified in the
Escrow Agreement. The
Certificates
(with attached Escrow Receipts) issued by the Original Trust shall be in the
form of one or more fully registered global Certificates, and shall be deposited
with the Trustee as custodian for DTC and registered in the name of Cede &
Co.
(e) The
Company agrees to have the Certificates (with attached Escrow Receipts)
available for inspection and checking by you in New York, New York not later
than 1:00 P.M. on the business day prior to the Closing Date.
(f) It
is understood that each Underwriter has authorized MS, on its behalf and for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Certificates (with attached Escrow Receipts) that it has agreed
to purchase. MS, individually and not as a representative, may (but
shall not be obligated to) make payment of the purchase price for the
Certificates to be purchased by any Underwriter whose check or checks shall not
have been received by the Closing Date.
3. Conditions of Underwriters’
Obligations. The several obligations of the Underwriters to
purchase and pay for the Certificates pursuant to this Agreement are subject to
the following conditions:
(a) On
the Closing Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the Securities Act and no proceedings
therefor shall have been instituted or threatened by the
Commission.
(b) On
the Closing Date, the Underwriters shall have received an opinion of Hughes
Hubbard & Reed LLP, counsel for the Company, dated the Closing Date, in form
and substance reasonably satisfactory to you.
(c) On
the Closing Date, the Underwriters shall have received an opinion of the General
Counsel, Secretary and Corporate Compliance Officer of the Company, dated the
Closing Date, in form and substance reasonably satisfactory to you.
(d) On
the Closing Date, the Underwriters shall have received an opinion of Richards,
Layton & Finger, P.A., counsel for Wilmington Trust Company, individually
and as Trustee, Subordination Agent and Paying Agent, dated the Closing Date, in
form and substance reasonably satisfactory to you.
(e) On
the Closing Date, the Underwriters shall have received an opinion of Ray,
Quinney & Nebeker P.C., counsel for the Escrow Agent, dated the Closing
Date, in form and substance reasonably satisfactory to you.
(f) On
the Closing Date, (i) each of the Rating Agencies (as defined below) shall have
received an opinion of in-house counsel for the Liquidity Provider, in form and
substance reasonably satisfactory to such Rating Agency, and (ii) the
Underwriters shall have received an opinion of Milbank, Tweed, Hadley &
McCloy LLP, special New York counsel for the Liquidity Provider, in form and
substance reasonably satisfactory to you, in each case dated the Closing
Date.
(g) On
the Closing Date, (i) each of the Rating Agencies shall have received an opinion
of in-house counsel for the Guarantor, in form and substance reasonably
satisfactory to such Rating Agency, and (ii) the Underwriters shall have
received an opinion of Milbank, Tweed, Hadley & McCloy LLP, special New York
counsel for the Guarantor, in form and substance reasonably satisfactory to you,
in each case dated the Closing Date.
(h) On
the Closing Date, the Underwriters shall have received an opinion of Milbank,
Tweed, Hadley & McCloy LLP, special New York counsel for the Liquidity
Provider, dated the Closing Date, in form and substance reasonably satisfactory
to you.
(i)
On the Closing Date, the Underwriters shall have received an opinion of Milbank,
Tweed, Hadley & McCloy LLP, special New York counsel for the Guarantor,
dated the Closing Date, in form and substance reasonably satisfactory to
you.
(j)
On the Closing Date, the Underwriters shall have received an opinion of Bryan
Cave LLP, special New York counsel for the Depositary, dated the Closing Date,
in form and substance reasonably satisfactory to you.
(k) On
the Closing Date, the Underwriters shall have received an opinion of Milbank,
Tweed, Hadley & McCloy LLP, counsel for the Underwriters, dated as of the
Closing Date, with respect to the issuance and sale of the Certificates, the
Registration Statement, the Time of Sale Prospectus, the Prospectus and other
related matters as the Underwriters may reasonably require.
(l)
Subsequent to the execution and delivery of this Agreement, there shall not have
occurred any change, or any development or event involving a prospective change,
in the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries considered as one enterprise
that, in your judgment, is material and adverse and that makes it, in your
judgment, impracticable to proceed with the completion of the public offering of
the Certificates on the terms and in the manner contemplated by the Time of Sale
Prospectus.
(m) The
Underwriters shall have received on the Closing Date a certificate, dated the
Closing Date and signed by the President or any Vice President of the Company,
to the effect that the representations and warranties of the Company contained
in this Agreement are true and correct as of the Closing Date as if made on the
Closing Date (except to the extent that they relate solely to an earlier date,
in which case they shall be true and accurate as of such earlier date), that the
Company has performed all its obligations to be performed hereunder on or prior
to the Closing Date and that, subsequent to the execution and delivery of this
Agreement, there shall not have occurred any material adverse change, or any
development or event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of operations of
the Company and its subsidiaries considered as one enterprise, except as set
forth in or contemplated by the Time of Sale Prospectus.
(n) The
Underwriters shall have received from Ernst & Young LLP, (i) a letter,
dated no earlier than the date hereof, in form and substance satisfactory to
you, containing statements and information of the type ordinarily included in
accountants’ “comfort letters” to underwriters with respect to the financial
statements and certain financial information included or incorporated by
reference in the Registration Statement, the preliminary prospectus and the
prospectus, and (ii) a letter, dated the Closing Date, which meets the
above requirements, except that the specified date therein referring to
certain procedures performed by Ernst & Young LLP will not be a date
more than three business days prior to the Closing Date for purposes of this
subsection.
(o) Subsequent
to the execution and delivery of this Agreement and prior to the Closing Date,
there shall not have been any downgrading in the rating accorded any of the
Company’s securities (except for any pass through certificates) by any
“nationally recognized statistical rating organization”, as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act, or any public
announcement that any such organization has under surveillance or review, in
each case for possible change, its ratings of any such securities other than
pass through certificates (other than an announcement with positive implications
of a possible upgrading, and no implication of a possible downgrading, of such
rating).
(p) Each
of the Appraisers shall have furnished to the Underwriters a letter from such
Appraiser, addressed to the Company and dated the Closing Date, confirming that
such Appraiser and each of its directors and officers (i) is not an
affiliate of the Company or any of its affiliates, (ii) does not have any
substantial interest, direct or indirect, in the Company or any of its
affiliates and (iii) is not connected with the Company or any of its
affiliates as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
(q) At
the Closing Date, each of the Operative Agreements (other than the Assignment
and Assumption Agreement and the Financing Agreements) shall have been duly
executed and delivered by each of the parties thereto; and the representations
and warranties of the Company contained in each of such executed Operative
Agreements shall be true and correct as of the Closing Date (except to the
extent that they relate solely to an earlier date, in which case they shall be
true and correct as of such earlier date) and the Underwriters shall have
received a certificate of the President or a Vice President of the Company,
dated as of the Closing Date, to such effect.
(r) On
the Closing Date, the Certificates shall be rated not lower than “A-” by
Standard & Poor’s Ratings Services, a Standard & Poor’s Financial
Services LLC business (“S&P”) and
not lower than “Baa2 ” by Moody’s Investors Service, Inc. (“Moody’s”, and
together with S&P, the “Rating
Agencies”).
(s) On
the Closing Date, the representations and warranties of the Depositary contained
in this Agreement shall be true and correct as if made on the Closing
Date
(except
to the extent that they relate solely to an earlier date, in which case they
shall be true and correct as of such earlier date).
The
Company will furnish the Underwriters with such conformed copies of such
opinions, certificates, letters and documents as the Underwriters may reasonably
request.
4. Certain Covenants of the
Company. The Company covenants with each Underwriter as
follows:
(a) During
the period described in the following sentence of this Section 4(a), the
Company shall advise you promptly of any proposal to amend or supplement the
Registration Statement, Time of Sale Prospectus or the Prospectus (except by
documents filed under the Exchange Act) and will not effect such amendment or
supplement (except by documents filed under the Exchange Act) without your
consent, which consent will not be unreasonably withheld. If, at any
time after the public offering of the Certificates, the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities Act) is
required by law to be delivered in connection with sales of the Certificates by
an Underwriter or a dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus so that the statements therein
will not, in the light of the circumstances when the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities Act) is
delivered to a purchaser, contain a material misstatement or omission, or if it
is necessary to amend the Registration Statement or amend or supplement the
Prospectus to comply with law, the Company shall prepare and furnish at its
expense to the Underwriters and to the dealers (whose names and addresses you
will furnish to the Company) to which Certificates may have been sold by you on
behalf of the Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus (or in lieu thereof the notice referred to in
Rule 173(a) under the Securities Act) is delivered to a purchaser, contain
a material misstatement or omission, or amendments or supplements to the
Registration Statement or the Prospectus so that the Registration Statement or
the Prospectus, as so amended or supplemented, will comply with law and cause
such amendments or supplements to be filed promptly with the
Commission.
(b) During
the period mentioned in paragraph (a) above, the Company shall notify each
Underwriter immediately of (i) the effectiveness of any amendment to the
Registration Statement, (ii) the transmittal to the Commission for filing
of any supplement to the Prospectus or any document that would as a result
thereof be incorporated by reference in the Prospectus, (iii) the receipt
of any comments from the Commission with respect to the Registration Statement
or the Prospectus, (iv) any request by the Commission to the Company for
any amendment to the Registration Statement or any supplement to the Prospectus
or for additional information relating thereto or to any document incorporated
by reference in the Prospectus and (v) receipt by the Company of any notice
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement, the suspension of the qualification of the
Certificates for offering or sale in any jurisdiction, or the institution or
threatening of any
proceeding
for any of such purposes; and the Company agrees to use every reasonable effort
to prevent the issuance of any such stop order and, if any such order is issued,
to obtain the lifting thereof at the earliest possible moment and the Company
shall (subject to the proviso to Section 4(g)) endeavor, in cooperation
with the Underwriters, to prevent the issuance of any such stop order suspending
such qualification and, if any such order is issued, to obtain the lifting
thereof at the earliest possible moment.
(c) During
the period mentioned in paragraph (a) above, the Company will furnish to
each Underwriter as many conformed copies of the Registration Statement (as
originally filed), Time of Sale Prospectus, the Prospectus, and all amendments
and supplements to such documents (excluding all exhibits and documents filed
therewith or incorporated by reference therein) and as many conformed copies of
all consents and certificates of experts, in each case as soon as available and
in such quantities as each Underwriter reasonably requests.
(d) Promptly
following the execution of this Agreement, the Company will prepare a Prospectus
that complies with the Securities Act and that sets forth the principal amount
of the Certificates and their terms (including, without limitation, terms of the
Escrow Receipts attached to the Certificates) not otherwise specified in the
preliminary prospectus or the Basic Prospectus included in the Registration
Statement, the name of each Underwriter and the principal amount of the
Certificates that each severally has agreed to purchase, the name of each
Underwriter, if any, acting as representative of the Underwriters in connection
with the offering, the price at which the Certificates are to be purchased by
the Underwriters from the Trustee, any initial public offering price, any
selling concession and reallowance and any delayed delivery arrangements, and
such other information as you and the Company deem appropriate in connection
with the offering of the Certificates. The Company will timely
transmit copies of the Prospectus to the Commission for filing pursuant to
Rule 424 under the Securities Act.
(e) The
Company shall furnish to each Underwriter a copy of each free writing prospectus
relating to the offering of the Certificates prepared by or on behalf of, used
by, or referred to by the Company and shall not use or refer to any proposed
free writing prospectus to which you reasonably object.
(f)
If the
Time of Sale Prospectus is being used to solicit offers to buy the Certificates
at a time when a Prospectus is not yet available to prospective purchasers and
any event shall occur or condition exist as a result of which it is necessary to
amend or supplement the Time of Sale Prospectus in order to make the statements
therein, in the light of the circumstances when delivered to a prospective
purchaser, not misleading in any material respect, or if any event shall occur
or condition exist as a result of which the Time of Sale Prospectus conflicts
with the information contained in the Registration Statement then on file, or if
it is necessary to amend or supplement the Time of Sale Prospectus to comply
with applicable law, the Company shall forthwith prepare, file promptly with the
Commission and furnish, at the Company’s expense, to the Underwriters and to the
dealers (whose names and addresses you will furnish to the Company) to which
Certificates may have been sold by you on behalf of the
Underwriters
and to any other dealers upon request, either amendments or supplements to the
Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as
so amended or supplemented will not, in the light of the circumstances when
delivered to a prospective purchaser, be misleading in any material respect or
so that the Time of Sale Prospectus, as so amended or supplemented, will no
longer conflict with the Registration Statement, or so that the Time of Sale
Prospectus, as amended or supplemented, will comply with applicable
law.
(g) The
Company shall, in cooperation with the Underwriters, endeavor to arrange for the
qualification of the Certificates for offer and sale under the applicable
securities or “blue sky” laws of such jurisdictions in the United States as you
reasonably designate and will endeavor to maintain such qualifications in effect
so long as required for the distribution of such Certificates; provided that the
Company shall not be required to (i) qualify as a foreign corporation or as
a dealer in securities, (ii) file a general consent to service of process
or (iii) subject itself to taxation in any such jurisdiction.
(h) During
the period of ten years after the Closing Date, the Company will promptly
furnish to each Underwriter, upon request, copies of all Annual Reports on
Form 10-K and any definitive proxy statement of the Company filed with the
Commission; provided that
providing a website address at which such Annual Reports and any such definitive
proxy statements may be accessed will satisfy this clause (h).
(i) If the
third anniversary of the initial effective date of the Registration Statement
occurs before all the Certificates have been sold by the Underwriters, prior to
the third anniversary, the Company shall file a new shelf registration statement
and take any other action necessary to permit the public offering of the
Certificates to continue without interruption, in which case references herein
to the Registration Statement shall include the new registration statement as it
shall become effective.
(j) Between
the date of this Agreement and the Closing Date, the Company shall not, without
your prior written consent, offer, sell or enter into any agreement to sell (as
public debt securities registered under the Securities Act (other than the
Certificates) or as debt securities which may be resold in a transaction exempt
from the registration requirements of the Securities Act in reliance on
Rule 144A thereunder and which are marketed through the use of a disclosure
document containing substantially the same information as a prospectus for
similar debt securities registered under the Securities Act), any equipment
notes, pass through certificates, equipment trust certificates or equipment
purchase certificates secured by aircraft owned by the Company (or rights
relating thereto).
(k) The
Company shall prepare a final term sheet relating to the offering of the
Certificates, containing only information that describes the final terms of the
Certificates or the offering in a form consented to by you and shall file such
final term sheet within the period required by Rule 433(d)(5)(ii) under the
Securities Act following the date the final terms have been established for the
offering of the Certificates.
5. Certain Covenants of the
Underwriter. Each Underwriter represents, warrants and
covenants that it has not made and will not make any offer relating to the
Certificates that would constitute an issuer free writing prospectus; provided that this
Section 5 shall not prevent the Underwriters from transmitting or otherwise
making use of one or more customary “Bloomberg Screens” to offer the
Certificates or convey final pricing terms thereof that contain only information
contained in the Time of Sale Prospectus.
6. Indemnification and
Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter, and each Person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred by any Underwriter or any such controlling
person in connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any preliminary prospectus, the Time of
Sale Prospectus, any “issuer free writing prospectus” as defined in
Rule 433(h) under the Securities Act, any Company information that the
Company has filed, or is required to file, pursuant to Rule 433(d) under
the Securities Act or the Prospectus, or any amendment or supplement thereto, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as any of the aforementioned losses, claims, damages
or liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information furnished to the Company in
writing by any Underwriter through you expressly for use in the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer
free writing prospectus or the Prospectus, or any amendment or supplement
thereto (the “Underwriter Information”) or the Depositary
Information.
(b) Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company, within the meaning
of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
such Underwriter but only with reference to the Underwriter Information provided
by such Underwriter.
(c) In
case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either paragraph (a) or (b) above, such person (the “indemnified party”)
shall promptly notify the person against whom such indemnity may be sought (the
“indemnifying
party”) in writing; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified
party otherwise than under such paragraph. The indemnifying party, upon request
of the indemnified party, shall, and the indemnifying party may elect to, retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and the indemnifying party shall pay the fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the
indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel, (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them, or (iii) the
indemnifying party shall have failed to retain counsel as required by the prior
sentence to represent the indemnified party within a reasonable amount of
time. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm
shall be designated in writing by you in the case of parties indemnified
pursuant to paragraph (a) above and by the Company in the case of parties
indemnified pursuant to paragraph (b) above. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested in writing an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph (c), the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 90 days after receipt by such indemnifying party of
the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement, unless such fees and expenses are being disputed in
good faith. The indemnifying party at any time may, subject to the
last sentence of this paragraph (c), settle or compromise any proceeding
described in this paragraph (c), at the expense of the indemnifying
party. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
indemnified party.
(d) To
the extent the indemnification provided for in paragraph (a) or (b) of
this Section 6 is required to be made but is unavailable to an indemnified
party or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then the applicable indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the
Certificates or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company, on the one hand, and the Underwriters, on the
other hand, in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the
one hand, and
the
Underwriters, on the other hand, in connection with the offering of such
Certificates shall be deemed to be in the same respective proportions as the
proceeds from the offering of such Certificates received by the Original Trust
(before deducting expenses), less total underwriting discounts and commissions
received by the Underwriters, and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth on the cover
of the Prospectus, bear to the aggregate initial public offering price of such
Certificates. The relative fault of the Company, on the one hand, and
of the Underwriters, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or information supplied by any Underwriters,
and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Underwriters’ respective obligations to contribute pursuant to this
Section 6 are several in proportion to the respective principal amount of
Certificates they have purchased hereunder, and not joint.
(e) The
Company and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 6 were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions
of this Section 6, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Certificates underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(f) The
indemnity and contribution provisions contained in this Section 6 and the
representations and warranties of the Company contained in this Agreement shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any person controlling the Company,
and (iii) acceptance of and payment for any of the
Certificates. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
7.
Default of
Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Certificates hereunder and the aggregate principal
amount of the Certificates that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total principal amount
of the Certificates, you may make arrangements satisfactory to the Company for
the purchase of such Certificates by other persons, including any of the
non-defaulting Underwriters, but if no such arrangements are made by the Closing
Date,
the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Certificates that such
defaulting Underwriter or Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the
aggregate principal amount of the Certificates with respect to which such
default or defaults occurs exceeds 10% of the total principal amount of the
Certificates and arrangements satisfactory to you and the Company for purchase
of such Certificates by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company, except as provided in
Section 6. As used in this Agreement, the term “Underwriter”
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its
default.
8. Survival of Certain
Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any termination of
this Agreement, any investigation, or statement as to the results thereof, made
by or on behalf of any Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person and will
survive delivery of and payment for the Certificates. If for any
reason the purchase of the Certificates by the Underwriters is not consummated,
the Company shall remain responsible for the expenses to be paid or reimbursed
by it pursuant to Section 10 hereof and the respective obligations of the
Company and the Underwriters pursuant to Section 6 hereof shall remain in
effect. If the purchase of the Certificates by the Underwriters is
not consummated for any reason other than solely because of the occurrence of
the termination of the Agreement pursuant to Section 7 or 9 hereof, the
Company will reimburse the Underwriters for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) reasonably incurred by
the Underwriters in connection with the offering of such Certificates and comply
with its obligations under Sections 6 and 10 hereof.
9. Termination. This
Agreement shall be subject to termination by notice given by you to the Company,
if (a) after the execution and delivery of this Agreement and prior to the
Closing Date (i) trading generally shall have been materially suspended or
materially limited on or by, as the case may be, either of the New York Stock
Exchange or the NASDAQ Global Market, (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New
York shall have been declared by either Federal or New York State authorities,
(iv) there shall have occurred any attack on, outbreak or escalation of
hostilities or act of terrorism involving, the United States, or any change in
financial markets or any calamity or crisis that, in each case, in your
judgment, is material and adverse or (v) any major disruption of
settlements of securities or clearance services in the United States that would
materially impair settlement and clearance with respect to the Certificates and
(b) in the case of any of the events specified in clauses (a)(i)
through (v), such event singly or together with any other such event makes it,
in your judgment, impracticable to market the Certificates on the terms and in
the manner contemplated in the Time of Sale Prospectus.
10. Payment of
Expenses. As between the Company and the Underwriters, the
Company shall pay all expenses incidental to the performance of the Company’s
obligations under this Agreement, including the following:
(i) expenses
incurred in connection with (A) qualifying the Certificates for offer and
sale under the applicable securities or “blue sky” laws of such jurisdictions in
the United States as you reasonably designate (including filing fees and fees
and disbursements of counsel for the Underwriters in connection therewith),
(B) endeavoring to maintain such qualifications in effect so long as
required for the distribution of such Certificates, (C) the review (if any)
of the offering of the Certificates by FINRA, (D) the determination of the
eligibility of the Certificates for investment under the laws of such
jurisdictions as the Underwriters may designate and (E) the preparation and
distribution of any blue sky or legal investment memorandum by Milbank, Tweed,
Hadley & McCloy LLP, Underwriters’ counsel;
(ii) expenses
incurred in connection with the preparation and distribution to the Underwriters
and the dealers (whose names and addresses the Underwriters will furnish to the
Company) to which Certificates may have been sold by the Underwriters on their
behalf and to any other dealers upon request, either of (A) amendments to
the Registration Statement or amendments or supplements to the Time of Sale
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not materially
misleading or (B) amendments or supplements to the Registration Statement,
the Time of Sale Prospectus, or the Prospectus so that the Registration
Statement, the Time of Sale Prospectus or the Prospectus, as so amended or
supplemented, will comply with law and the expenses incurred in connection with
causing such amendments or supplements to be filed promptly with the Commission,
all as set forth in Section 4(a) hereof;
(iii) the
expenses incurred in connection with the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, any issuer free writing prospectus and any
amendments and supplements to any of the foregoing, including the filing fees
payable to the Commission relating to the Certificates (within the time period
required by Rule 456(b)(1), if applicable), and the cost of furnishing
copies thereof to the Underwriters and dealers;
(iv) expenses
incurred in connection with the preparation, printing and distribution of this
Agreement, the Certificates and the Operative Agreements;
(v)
expenses incurred in connection with the delivery of the Certificates to the
Underwriters;
(vi) reasonable
fees and disbursements of the counsel and accountants for the
Company;
(vii) to
the extent the Company is so required under any Operative Agreement to which it
is a party, the fees and expenses of the Mortgagee, the Subordination
Agent,
the
Paying Agent, the Trustee, the Escrow Agent, the Depositary and the Liquidity
Provider and the reasonable fees and disbursements of their respective
counsel;
(viii) fees
charged by rating agencies for rating the Certificates (including annual
surveillance fees related to the Certificates as long as they are
outstanding);
(ix) reasonable
fees and disbursements of Milbank, Tweed, Hadley & McCloy LLP, counsel for
the Underwriters;
(x) all
fees and expenses relating to appraisals of the Aircraft;
(xi) all
other reasonable out-of-pocket expenses incurred by the Underwriters in
connection with the transactions contemplated by this Agreement;
and
(xii) except
as otherwise provided in the foregoing clauses (i) through (xi), all other
expenses incidental to the performance of the Company’s obligations under this
Agreement, other than pursuant to Section 6;
provided, however, the
Underwriters shall reimburse the Company for the foregoing costs and expenses in
an amount not to exceed $ 974,218.
11. Notices. All
communications hereunder shall be in writing and effective only upon receipt
and, if sent to the Underwriters, shall be mailed, delivered or sent by
facsimile transmission and confirmed to the Underwriters c/o Morgan Stanley
& Co. Incorporated, 1585 Broadway, New York, New York 10036,
Attention: Equipment Finance Group, facsimile number (212) 761-1781,
c/o Goldman, Sachs & Co., 85 Broad Street, 20th Floor, New York, New York
10004, Attention: Registration Department, facsimile number (212) 902-3000 and c/o Calyon Securities
(USA) Inc., 1301 Avenue of the Americas, New York, New York 10019, Attention:
Leo Burrell, Managing Director, DCM Securitization Americas, facsimile number
(917) 849-5541; and, if sent to the Company, shall be mailed, delivered or sent
by facsimile transmission and confirmed to it at 1600 Smith Street, HQSEO,
Houston, TX 77002, Attention: Treasurer and General Counsel,
facsimile number (713) 324-2447; provided, however, that any
notice to an Underwriter pursuant to Section 6 shall be sent by facsimile
transmission or delivered and confirmed to such Underwriter.
12. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the controlling persons referred to in
Section 6, and no other person will have any right or obligation
hereunder.
13. Representation of
Underwriters. You will act for the several Underwriters in
connection with this purchase, and any action under this Agreement taken by you
will be binding upon all the Underwriters.
14. Patriot
Act. In accordance with the requirements of the USA Patriot
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the
Underwriters are required to obtain, verify and record information that
identifies their respective clients, including the Company, which information
may include the name and address of their respective clients,
as
well as
other information that will allow the Underwriters to properly identify their
respective clients.
15. Counterparts. This
Agreement may be executed in any number of counterparts, each of which will be
deemed to be an original, but all such counterparts shall together constitute
one and the same Agreement.
16. APPLICABLE
LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK OTHER THAN ANY LAW WHICH WOULD
REQUIRE THE APPLICATION OF A LAW OF A DIFFERENT JURISDICTION.
17. Submission to Jurisdiction;
Venue; Appointment of Agent.
(a) Each party
hereto hereby irrevocably agrees, accepts and submits itself to the
non-exclusive jurisdiction of the courts of the State of New York in the City
and County of New York and of the United States for the Southern District of New
York, in connection with any legal action, suit or proceeding with respect to
any matter relating to or arising out of or in connection with this
Agreement. Each of the parties to this Agreement agrees that a final
action in any such suit or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other lawful
manner.
(b) Each party
hereto hereby irrevocably waives, to the fullest extent permitted by applicable
law, and agrees not to assert, by stay of motion, as a defense, or otherwise, in
any legal action or proceeding brought hereunder in any of the above-named
courts, that such action or proceeding is brought in an inconvenient forum, or
that venue for the action or proceeding is improper.
(c) To the
fullest extent permitted by applicable law, each party hereto hereby waives its
respective rights to a jury trial or any claim or cause of action in any court
in any jurisdiction based upon or arising out of or relating to this
Agreement.
18. No Fiduciary
Duty. The Company hereby acknowledges that in connection with
the offering of the Certificates: (a) the Underwriters have
acted at arm’s length, are not agents and owe no fiduciary duties to, the
Company or any other person, (b) the Underwriters owe the Company only
those duties and obligations set forth in this Agreement and prior written
agreements (to the extent not superseded by this Agreement), if any, and
(c) the Underwriters may have interests that differ from those of the
Company. The Company waives to the full extent permitted by
applicable law any claims it may have against the Underwriters arising from an
alleged breach of fiduciary duty in connection with the offering of the
Certificates.
19. Headings. The
headings of the sections of this Agreement have been inserted for convenience of
reference only and shall not be deemed a part of this Agreement.
If the
foregoing is in accordance with the Underwriters’ understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement among the Underwriters, the
Depositary and the Company in accordance with its terms.
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Very
truly yours, |
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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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The
foregoing Underwriting Agreement
is hereby
confirmed and accepted
as of the
date first above written
MORGAN
STANLEY & CO. INCORPORATED
GOLDMAN,
SACHS & CO.
CALYON
SECURITIES (USA) INC.
By: MORGAN
STANLEY & CO. INCORPORATED |
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By:
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Name: |
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Title: |
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By:
GOLDMAN, SACHS & CO.
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By:
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(Goldman,
Sachs & Co.)
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Name: |
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Title: |
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By:
CALYON SECURITIES (USA) INC.
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By:
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Name: |
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Title: |
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Underwriting Agreement
Signature Page
THE
BANK OF NEW YORK MELLON,
as
Depositary
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By:
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Name: |
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Title: |
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Underwriting Agreement
Signature Page - Depositary
SCHEDULE I
(Continental
Airlines Pass Through Certificates, Series 2009-1A-O)
CONTINENTAL AIRLINES,
INC.
Certificate
Designation
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Aggregate
Principal
Amount
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Interest Rate
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Final
Expected
Distribution
Date
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2009-1A-O
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$
389,687,000
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9.000%
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July
8,
2016
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SCHEDULE II
Underwriters
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2009-1A-O
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Morgan
Stanley & Co. Incorporated
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$129,895,667
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Goldman,
Sachs & Co.
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$129,895,667
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Calyon
Securities (USA) Inc.
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$129,895,666
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SCHEDULE III
CONTINENTAL
AIRLINES, INC.
Underwriting
commission
and
other compensation:
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$5,845,305
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Closing
date, time and location:
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July
1, 2009
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10:00
A.M.,
New York time
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, NY
10004
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SCHEDULE IV
Time
of Sale Prospectus
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1.
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Basic
Prospectus dated April 24, 2009 relating to
Shelf
Securities
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2.
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preliminary
Prospectus Supplement dated June 16,
2009
relating to the
Certificates
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3.
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free
writing prospectus dated June 16, 2009 (pricing
supplement)
in the form attached as
Annex A
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4.
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net
roadshow investor presentation of the Company
dated
June 16, 2009
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ANNEX A
Issuer
Free Writing Prospectus
Filed
pursuant to Rule 433(d)
Registration
No. 333-158781
June
16, 2009
Continental
Airlines, Inc. (“Continental”)
(NYSE Symbol:
CAL)
Securities:
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Class
A Pass Through Certificates, Series 2009-1
(“Certificates”)
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Amount:
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$389,687,000
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CUSIP:
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21079TAA6
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ISIN:
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US21079TAA60
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Coupon:
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9.000%
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Amount
Available under Liquidity
Facility
at January 8,
2010:
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$51,544,342
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Initial
“Maximum
Commitment”
under
Liquidity
Facility:
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$53,289,697
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Public
Offering Price:
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100%
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Make-Whole
Spread Over Treasuries:
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T+75
bps
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Underwriters
Purchase Commitments:
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Underwriter
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Principal
Amount
of Certificates
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Morgan
Stanley & Co.
Incorporated
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$129,895,667
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Goldman,
Sachs & Co.
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$129,895,667
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Calyon
Securities (USA) (Inc.)
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$129,895,666
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Underwriting
Commission:
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$5,845,305
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Concession
to Selling
Group
Members:
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0.500%
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Discount
to
Brokers/Dealers:
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0.250%
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Underwriting
Agreement:
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June
16, 2009
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Settlement:
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July
1, 2009 (T+11) closing date, the 11th
business day following the date hereof
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Preliminary
Prospectus
Supplement:
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Continental
has prepared and filed with the SEC a Preliminary Prospectus Supplement,
dated June 16, 2009, which includes additional information regarding the
Certificates
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The
issuer has filed a registration statement (including a prospectus) with the SEC
for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting EDGAR on the
SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any
dealer participating in the offering will arrange to send you the prospectus if
you request it by calling Morgan Stanley toll-free 1-866-718-1649 (institutional
investors).
e60709081ex4_1.htm
TRUST
SUPPLEMENT No. 2009-1A-O
Dated as
of July 1, 2009
between
WILMINGTON
TRUST COMPANY
as
Trustee,
and
CONTINENTAL
AIRLINES, INC.
to
PASS
THROUGH TRUST AGREEMENT
Dated as
of September 25, 1997
$389,687,000
Continental
Airlines Pass Through Trust 2009-1A-O
9.000%
Continental Airlines
Pass
Through Certificates,
Series
2009-1A-O
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This
Trust Supplement No. 2009-1A-O, dated as of July 1, 2009 (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 currently owns 12 Boeing Aircraft (collectively, the “Owned Aircraft”) and
has obtained commitments from Boeing for the delivery of five additional
Aircraft (collectively, the “New Aircraft”,
together with the Owned Aircraft, the “Applicable
Aircraft”);
WHEREAS,
the Company intends to finance (i) each Owned Aircraft after the existing
security interest on such Owned Aircraft has been discharged and (ii) a portion
of the purchase price of the New Aircraft;
WHEREAS,
with respect to each Applicable Aircraft, the Company will issue pursuant to an
Indenture, on a recourse basis, Equipment Notes (i) in the case of each Owned
Aircraft, to finance such Owned Aircraft after the existing security interest on
such Owned Aircraft has been discharged, and (ii) in the case of each New
Aircraft, to finance a portion of the purchase price of such New
Aircraft;
WHEREAS,
the Trustee hereby declares the creation of the Continental Airlines Pass
Through Trust 2009-1A-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
conditions set forth in the NPA for such purchase are satisfied 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 Applicable Aircraft under the NPA, 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 2009-1A-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 $389,687,000.
(b) The
Regular Distribution Dates with respect to any payment of Scheduled Payments
means January 8 and July 8 of each year, commencing on January 8, 2010, 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.
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 Applicable 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
Aircraft: Has the meaning specified in the recitals
hereto.
Applicable
Certificate: Has the meaning specified in Section 1.01 of
this Trust Supplement.
Applicable
Certificateholder: Means the Person in whose name an
Applicable Certificate is registered on the Register for the Applicable
Certificates.
Applicable Closing
Date: Has the meaning specified in Section 5.01(b) of this
Trust Supplement.
Applicable Participation
Agreement: Has the meaning specified in Section 5.01(b) of
this Trust Supplement.
Applicable
Trust: Has the meaning specified in the recitals
hereto.
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.
Closing
Notice: Has the meaning specified in the NPA.
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 Period Termination
Date: Means the earlier of (a) December 31, 2009, and (b)
the date on which Equipment Notes issued with respect to all of the Aircraft (as
defined in the NPA) (including any Substitute Aircraft in lieu of the New
Aircraft (as
defined
in the NPA)) have been purchased by the Applicable Trust in accordance with the
NPA.
Deposit
Agreement: Means the Deposit Agreement dated as of July 1,
2009 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
The Bank of New York Mellon, a bank chartered under the laws of the State of New
York.
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 July 1, 2009 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 January 8, 2018.
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 Closing 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 July
1, 2009 among the Trustee, the Liquidity Provider and Wilmington Trust Company,
as Subordination Agent and as trustee thereunder, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Investors: Means
the Underwriters, together with all subsequent beneficial owners of the
Applicable Certificates.
Liquidity
Facility: Means, initially, the Revolving Credit Agreement
dated as of July 1, 2009 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, Goldman Sachs Bank USA, a
corporation organized under the Banking Law of the State of New York, and any
replacements or successors therefor appointed in accordance with the
Intercreditor Agreement.
New
Aircraft: Has the meaning specified in the recitals of this
Trust Supplement.
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 July 1, 2009 among the Trustee, the
Company, the Escrow Agent, the Escrow Paying Agent and the Subordination Agent,
providing for, among other things, the purchase of Equipment Notes by the
Trustee on behalf of the Applicable Trust, as the same may be amended,
supplemented or otherwise modified from time to time, in accordance with its
terms.
Other
Agreement: Means the Basic Agreement as supplemented by a
Trust Supplement relating to the Additional Trust, if any.
Owned
Aircraft: Has the meaning specified in the recitals
hereto.
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 June
16, 2009 relating to the offering of the Applicable 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. 2009-1A-S dated as of the date hereof relating to the
Continental Airlines Pass Through Trust 2009-1A-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 2009-1A-S, to
be formed under the Related Pass Through Trust Agreement.
Related
Trustee: Means the trustee under the Related Pass Through
Trust Agreement.
Scheduled Closing
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 the 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, Goldman, Sachs & Co.
and Calyon Securities (USA) Inc.
Underwriting
Agreement: Means the Underwriting Agreement dated June 16,
2009 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-30 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-30 of the Prospectus Supplement, and (ii) the date of any early
redemption 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 with respect to a Special Payment 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, if any Additional Certificates are issued pursuant to
the Additional Trust, each Additional 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 Additional 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 Additional Certificateholder
(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 pro rata based on the Fractional Undivided Interest in
the Additional Trust held by each such Additional Certificateholder and (B) if
prior to the end of such 15-day period any other Additional Certificateholder
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 pursuant to this Section 4.01(a).
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 all of the Applicable Certificates pursuant to
the terms of the Agreement and the Other Agreement. 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 Additional Certificateholder(s) 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” and “Additional 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. 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
Closing Notice relating to one or more Equipment Notes. After receipt
of a Closing Notice and in any case no later than one Business Day prior to a
Scheduled Closing Date as to which such Closing Notice relates (the “Applicable Closing
Date”), the Trustee shall (as and when specified in the Closing Notice)
instruct the Escrow Agent to provide a Notice of Purchase Withdrawal to the
Depositary requesting (A) the withdrawal of one or more Deposits on the
Applicable Closing Date in accordance with and to the extent permitted by the
terms of the Escrow Agreement and the Deposit Agreement and (B) the payment of
all, or a portion, of such Deposit or Deposits in an amount equal in the
aggregate to the purchase price of such Equipment Notes to or on behalf of the
Company, all as shall be described in the Closing Notice. The Trustee
shall (as and when specified in such Closing 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 Closing Notice (the “Applicable Participation
Agreement”) and cause such certificates, documents and legal opinions
relating to the Trustee to be duly delivered as required by the Applicable
Participation Agreement. If at any time prior to the Applicable
Closing Date, the Trustee receives a notice of postponement pursuant to Section
1(e) or 1(f) of the NPA, then the Trustee shall give the Depositary (with a copy
to the Escrow Agent) a notice of cancellation of such Notice of Purchase
Withdrawal relating to such Deposit or Deposits on such Applicable Closing
Date. Upon satisfaction of the conditions specified in the NPA and
the Applicable Participation Agreement, the Trustee shall purchase the
applicable Equipment Notes with the proceeds of the withdrawals of one or more
Deposits made on the Applicable Closing Date in accordance with the terms of the
Deposit Agreement and the Escrow Agreement. The purchase price of
such Equipment Notes shall equal the principal amount of such Equipment
Notes. Amounts withdrawn from such Deposit or Deposits in excess of
the purchase price of the Equipment Notes or to the extent not applied on the
Applicable Closing Date to the purchase price of the Equipment Notes, shall be
re-deposited by the Trustee with the Depositary on the Applicable Closing Date
in accordance with the terms of the Deposit Agreement. The provisions
of this Section 5.01(b) supersede and replace the provisions of Section 2.02 of
the Basic
Agreement
with respect to the Applicable Trust, and all provisions of the Basic Agreement
relating to Postponed Notes and Section 2.02 of the Basic Agreement shall not
apply to the Applicable Trust.
(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.
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” and (ii) enter into one or more agreements
supplemental to the Agreement, the Intercreditor Agreement or the NPA to provide
for the formation of a single Additional Trust, the issuance of Additional
Certificates, the purchase by the Additional Trust (if any) 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.
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 Additional
Trust. 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 the Additional Trust, if any, 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 December 31, 2009 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 of the
first paragraph of this Section 7.01, 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.
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WILMINGTON
TRUST COMPANY,
as Trustee
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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 2009-1A-O
Continental
Airlines Pass Through Certificate, Series 2009-1A-O
Issuance
Date: July 1, 2009
Final
Maturity Date: January 8, 2018
Evidencing
A Fractional Undivided Interest In The Continental Airlines Pass Through Trust
2009-1A-O, The Property Of Which Shall Include Certain Equipment Notes Each
Secured By An Aircraft Owned By Continental Airlines, Inc.
$[_____________]
Fractional Undivided Interest
representing
0.0002566162% 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
2009-1A-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. 2009-1A-O thereto, dated as of July 1, 2009 (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 2009-1A-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 January 8 and July 8 of each year (a “Regular Distribution
Date”) commencing January 8, 2010, 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 2009-1A-O
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By:
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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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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: |
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Title: |
[DTC
Letter of Representations]
FORM OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
Continental
Airlines Pass Through Trust 2009-1A-O
ASSIGNMENT
AND ASSUMPTION AGREEMENT (2009-1A-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. 2009-1A-O dated as of July 1, 2009 (the
“Trust
Supplement” and together with the Basic Agreement, the “Agreement”) in
respect of the Continental Airlines Pass Through Trust 2009-1A-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. 2009-1A-S dated as
of July 1, 2009 (the “New Supplement”, and,
together with the Basic Agreement, the “New Agreement”)
in respect of the Continental Airlines Pass Through Trust 2009-1A-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.
10. Notice. Promptly
following the Transfer Date, the Assignee shall notify the Depositary of the
occurrence of the assignment hereunder and the name and contact information of
the Assignee.
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
2009-1A-O
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By:
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Title:
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ASSIGNEE:
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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
2009-1A-S
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By:
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Title:
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Schedule
I
Schedule
of Assigned Documents
(1) Intercreditor
Agreement dated as of July 1, 2009 among the Trustee, the Liquidity Provider and
the Subordination Agent.
(2) Escrow
and Paying Agent Agreement dated as of July 1, 2009 among the Escrow Agent, the
Underwriters, the Trustee and the Paying Agent.
(3) Note
Purchase Agreement dated as of July 1, 2009 among the Company, the Trustee, the
Depositary, the Escrow Agent, the Paying Agent and the Subordination
Agent.
(4) Deposit
Agreement dated as of July 1, 2009 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
Goldman
Sachs Bank USA, as Liquidity Provider
The Bank
of New York Mellon, as Depositary
Continental
Airlines, Inc.
Morgan
Stanley & Co. Incorporated, as Underwriter
Goldman,
Sachs & Co., as Underwriter
Calyon
Securities (USA) Inc., as Underwriter
Wells
Fargo Bank Northwest, National Association, as Escrow Agent
Each of
the other parties to the Assigned Documents
e60709081ex4_2.htm
TRUST
SUPPLEMENT No. 2009-1A-S
Dated as
of July 1, 2009
between
WILMINGTON
TRUST COMPANY
as
Trustee,
and
CONTINENTAL
AIRLINES, INC.
to
PASS
THROUGH TRUST AGREEMENT
Dated as
of September 25, 1997
$389,687,000
Continental
Airlines Pass Through Trust 2009-1A-S
9.000%
Continental Airlines
Pass
Through Certificates,
Series
2009-1A-S
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This Trust Supplement No. 2009-1A-S,
dated as of July 1, 2009 (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 currently owns 12 Boeing Aircraft (collectively, the “Owned Aircraft”) and
has obtained commitments from Boeing for the delivery of five additional
Aircraft (collectively, the “New Aircraft”,
together with the Owned Aircraft, the “Applicable
Aircraft”);
WHEREAS,
as of the Transfer Date (as defined below), the Company will have financed (i)
each Owned Aircraft after the existing security interest on such Owned Aircraft
has been discharged and (ii) a portion of the purchase price of the New
Aircraft;
WHEREAS, as of the Transfer Date, with
respect to each Applicable Aircraft, the Company will have issued pursuant to an
Indenture, on a recourse basis, Equipment Notes (i) in the case of each Owned
Aircraft, to finance such Owned Aircraft after the existing security interest on
such Owned Aircraft has been discharged, and (ii) in the case of each New
Aircraft, to finance a portion of the purchase price of such New
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 2009-1A-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 2009-1A-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 January 8 and July 8 of each year, commencing on January 8, 2010, 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 Aircraft:
Has the meaning specified in the recitals hereto.
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
Pass Through 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.
Closing
Notice: Has the meaning specified in the NPA.
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 Period Termination
Date: Has the meaning specified in the Related Pass Through
Trust Supplement.
Deposit
Agreement: Means the Deposit Agreement dated as of July 1,
2009 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
The Bank of New York Mellon, a bank chartered under the laws of the State of New
York.
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 July 1, 2009 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 January 8, 2018.
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 Closing 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 July
1, 2009 among the Related Trustee (and after the Transfer Date, the
Trustee), the Liquidity Provider and Wilmington Trust Company, as
Subordination Agent and as trustee thereunder, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Investors: Means
the Underwriters, together with all subsequent beneficial owners of the
Applicable Certificates.
Liquidity
Facility: Means, initially, the Revolving Credit Agreement
dated as of July 1, 2009 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, Goldman Sachs Bank USA, a
corporation organized under the Banking Law of the State of New York, and any
replacements or successors therefor appointed in accordance with the
Intercreditor Agreement.
New
Aircraft: Has the meaning specified in the recitals of this
Trust Supplement.
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 July 1, 2009 among the Related Trustee
(and after the Transfer Date, the Trustee), 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
Agreement: Means the Basic Agreement as supplemented by a
Trust Supplement relating to the Additional Trust, if any.
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 recitals
hereto.
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 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” 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 June
16, 2009 relating to the offering of the Applicable 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. 2009-1A-O dated as of the date hereof (the “Related Pass Through Trust
Supplement”), relating to the Continental Airlines Pass Through Trust
2009-1A-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 2009-1A-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 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, Goldman, Sachs & Co.
and Calyon Securities (USA) Inc.
Underwriting
Agreement: Means the Underwriting Agreement dated June 16,
2009 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-30 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-30 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 with respect to a Special Payment 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, if any Additional Certificates are issued pursuant to
the Additional Trust, each Additional 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 Additional 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 Additional Certificateholder
(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 pro rata based on the Fractional Undivided
Interest in the Additional Trust held by each such Additional Certificateholder
and (B) if prior to the end of such 15-day period any other Additional
Certificateholder 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 pursuant to this Section
4.01(a).
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 all of the Applicable Certificates pursuant to
the terms of the Agreement and the Other Agreement. 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 Additional
Certificateholder(s) 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” and “Additional 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 Applicable 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
5.03. 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” and (ii) enter into one
or more agreements supplemental to the Agreement, the Intercreditor Agreement or
the NPA to provide for the formation of a single Additional Trust, the issuance
of Additional Certificates, the purchase by the Additional Trust (if any) 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.
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 Additional Trust. 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 the Additional Trust, if any, 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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e60709081ex4_3.htm
REVOLVING
CREDIT AGREEMENT
dated as
of July 1, 2009
between
WILMINGTON TRUST
COMPANY,
as
Subordination Agent,
as Agent
and Trustee for the
Continental
Airlines Pass Through Trust 2009-1A,
as
Borrower
and
GOLDMAN SACHS BANK
USA,
as
Liquidity Provider
__________________________
Relating
to Continental Airlines
Pass
Through Trust 2009-1A 9.000% Continental Airlines
Pass
Through Certificates, Series 2009-1A
__________________________
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Schedule
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Schedule
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Annex
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Annex II
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Annex III
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Annex IV
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Annex V
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Annex VI
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Annex
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Annex
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REVOLVING
CREDIT AGREEMENT (2009-1A)
THIS REVOLVING CREDIT AGREEMENT
(2009-1A) dated as of July 1, 2009, between WILMINGTON TRUST COMPANY, a
Delaware banking 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 GOLDMAN SACHS BANK
USA, a corporation organized under the banking law of the State of New
York (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, The Goldman Sachs
Group, Inc., a Delaware corporation (the “Guarantor”),
will guarantee in full, pursuant to a General Guarantee Agreement, dated as of
December 1, 2008, made by the Guarantor (the “Guarantee
Agreement”), the payment obligations of the Liquidity Provider under this
Agreement.
NOW, THEREFORE, in
consideration of the premises, the parties hereto agree as follows:
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
Costs” has the meaning assigned to such term in
Section 3.01.
“Advance”
means an Interest Advance, a Final Advance, a Provider Advance, a Special
Termination Advance, an Applied Special Termination 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 (including,
without limitation, any Unapplied Special Termination Advance and any Applied
Special Termination Advance) or Applied Provider Advance, the rate per annum
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).
“Applied
Special Termination Advance” means the amount in respect of a Special
Termination Advance withdrawn from the 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.
“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. 2009-1A-O, dated as of the date hereof, relating to the Class A
Trust.
“Base
Rate” means, for any given day, a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be equal to
(a) the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York, or
if such rate is not so published for any day that is a Business Day, the average
of the quotations for such day for such transactions received by the Liquidity
Provider from three Federal funds brokers of recognized standing selected by it,
plus (b) one-quarter of one percent (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 assigned to such term in Section
2.10.
“Covered
Affiliates” means any Affiliate of the Liquidity Provider that provides
services for the Liquidity Provider in connection with the transactions
contemplated by this Agreement, the Intercreditor Agreement, the Fee Letter
applicable to this Agreement or any other Operative Agreement.
“Deposit
Agreement” means the Deposit Agreement dated as of the date hereof
between Wells Fargo Bank Northwest, National Association, as Escrow Agent, and
The Bank of New York Mellon, 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).
“Effective
Date” has the meaning assigned to such term in
Section 4.01. The delivery of the certificate of the Liquidity
Provider contemplated by Section 4.01(e) shall be conclusive evidence that
the Effective Date has occurred.
“Excluded
Taxes” means (i) taxes imposed on 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
New York, New York 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 Trustee, the Liquidity Provider and the Subordination Agent, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
“Interest
Advance” means an Advance made pursuant to
Section 2.02(a).
“Interest
Period” means, with respect to any LIBOR Advance, each of the following
periods:
(i) the
period beginning on 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 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 Covered Affiliates, (iv) the directors, officers, employees and agents
of the Liquidity Provider, the Guarantor and the Covered Affiliates, and
(v) the successors and permitted assigns of the persons described in
clauses (i) through (iv) 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, a Special Termination 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 assigned to such term in
Section 3.03(a).
“Non-Extension
Advance” means an Advance made pursuant to
Section 2.02(b).
“Notice of
Borrowing” has the meaning assigned to such term in
Section 2.02(e).
“Notice of
Replacement Subordination Agent” has the meaning assigned to such term in
Section 3.08.
“Performing
Note Deficiency” means any time that less than 65% of the then aggregate
outstanding principal amount of all Equipment Notes are Performing Equipment
Notes.
“Prospectus
Supplement” means the final Prospectus Supplement dated 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.
“Regulation
U” means Regulation U of the Board of Governors of the Federal Reserve
System.
“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.
“Special
Termination Advance” means an Advance made pursuant to Section
2.02(g).
“Special
Termination Notice” means the Notice of Termination substantially in the
form of Annex VIII to this Agreement.
“Successor
Trust” means Continental Airlines Pass Through Trust
2009-1A-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 Agreement) or are
otherwise no longer entitled to the benefits of this Agreement; (iii) the
date on which the Borrower delivers to the Liquidity Provider a certificate,
signed by a Responsible Officer of the Borrower, certifying that a Replacement
Liquidity Facility has been substituted for this Agreement in full pursuant to
Section 3.5(e) of the Intercreditor Agreement; (iv) the fifth Business
Day following the receipt by the Borrower of a Termination Notice or Special
Termination Notice from the Liquidity Provider pursuant to Section 6.01
hereof; and (v) the date on which no Advance is or may (including by reason
of reinstatement as herein provided) become available for a Borrowing
hereunder.
“Termination
Notice” means the Notice of Termination substantially in the form of
Annex V to this Agreement.
“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.
“Unapplied
Special Termination Advance” means any Special Termination Advance other
than an Applied Special Termination 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”,
“Additional
Certificates”, “Aircraft”,
“Bankruptcy
Code”, “Cash
Collateral Account”, “Certificate”,
“Class A
Certificates”, “Class A
Trust”, “Class A
Trust Agreement”, “Class A
Trustee”, “Closing
Date”, “Continental”,
“Continental
Bankruptcy Event”, “Controlling
Party”, “Corporate
Trust Office”, “Delivery
Period Expiry Date”, “Downgraded
Facility”, “Downgrade
Event”, “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”,
and “Underwriting
Agreement”.
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 Special Termination 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 solely to fund the 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 solely
to fund the 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 solely to fund the 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),
2.02(d) or 2.02(g), 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 receipt of
a copy thereof by 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
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), (d) or (g) hereof to fund the Cash
Collateral Account, the Liquidity Provider shall have no interest in or rights
to the Cash Collateral Account, the funds constituting such Advance or any other
amounts from time to time on deposit in the Cash Collateral Account; provided
that the foregoing shall not affect or impair the obligations of the
Subordination Agent to make the distributions contemplated by
Section 3.5(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 Account to the extent provided in
Section 2.2(b) of the Intercreditor Agreement. By paying to the
Borrower proceeds of Advances requested by the Borrower in accordance with the
provisions of this Agreement, the Liquidity Provider makes no representation as
to, and assumes no responsibility for, the correctness or sufficiency for any
purpose of the amount of the Advances so made and requested.
(g) A Special
Termination Advance shall be made in a single Borrowing upon the receipt by the
Borrower of a Special Termination Notice from the Liquidity Provider pursuant to
Section 6.02, by delivery to the Liquidity Provider of a written and completed
Notice of Borrowing in substantially the form of Annex VII, signed by a
Responsible Officer of the Borrower, in an amount equal to the Maximum Available
Commitment at such time, and shall be used solely to fund the Cash Collateral
Account (in accordance with Section 3.5(f) and Section 3.5(m) of the
Intercreditor Agreement).
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 Special Termination 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, the Special Termination Advance or the Final
Advance. Subject
to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby agrees, without
notice of an Advance or demand for repayment from the Liquidity Provider (which
notice and demand are hereby waived by the Borrower), to pay, or to cause to be
paid, to the Liquidity Provider on each date on which the Liquidity Provider
shall make an Interest Advance, the Special Termination Advance or the Final
Advance, an amount equal to (a) the amount of such Advance (any such
Advance, until repaid, is referred to herein as an “Unpaid
Advance”) (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)); provided, further, that if,
following the making of a Special Termination Advance, the Liquidity Provider
delivers a Termination Notice to the Borrower pursuant to Section 6.01, such
Special Termination Advance shall thereafter be converted to and treated as a
Final Advance under this Agreement for purposes of determining the obligation
for repayment thereof and treated as an Applied Special Termination Advance for
purposes of Section 2.6(c) of the Intercreditor Agreement. The
Borrower and the Liquidity Provider agree that the repayment in full of each
Interest Advance, the Special Termination Advance and Final Advance on the date
such Advance is made is intended to be a contemporaneous exchange for new value
given to the Borrower by the Liquidity Provider.
Section 2.06 Repayments of Provider
Advances. (a) Amounts
advanced hereunder in respect of a Provider Advance shall be deposited in the
Cash Collateral Account, invested and withdrawn from the Cash Collateral Account
as set forth in Sections 3.5(c), (d), (e) 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 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 converted to and treated as a Final Advance
under this Agreement for purposes of determining the Applicable Liquidity Rate
for interest payable thereon and the obligation for repayment thereof and
treated 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 Cash Collateral Account on account
of a reduction in the Required Amount, the Borrower shall repay to the Liquidity
Provider a portion of the Provider Advances in a principal amount equal to the
amount of such reduction, plus interest on the principal amount prepaid as
provided in Section 3.07 hereof.
(b) At any
time when an Applied Provider Advance or an Applied Special Termination Advance
(or any portion thereof) is outstanding, upon the deposit in the 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 amount of
the Required Amount at such time, (i) the aggregate outstanding principal
amount of all Applied Provider Advances or the Applied Special Termination
Advance (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 or of the Unapplied Special Termination Advance
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 Cash Collateral Account after giving effect to any
Applied Provider Advance or Applied Special Termination Advance on the date of
such replacement shall be reimbursed to the replaced Liquidity Provider, but
only to the extent such amounts are necessary to repay in full to the replaced
Liquidity Provider all amounts owing to it hereunder.
Section 2.07 Payments to the Liquidity
Provider Under the Intercreditor Agreement. In
order to provide for payment or repayment to the Liquidity Provider of any
amounts hereunder, the Intercreditor Agreement provides that amounts available
and referred to in Articles II and III of the Intercreditor Agreement,
to the extent payable to the Liquidity Provider pursuant to the terms of the
Intercreditor Agreement (including, without limitation, Section 3.5(f) of
the Intercreditor Agreement), shall be paid to the Liquidity Provider in
accordance with the terms thereof. Amounts so paid to, and not
required to be returned by, the Liquidity Provider shall be applied by the
Liquidity Provider to Liquidity Obligations then due and payable in accordance
with the Intercreditor Agreement and shall discharge in full the corresponding
obligations of the Borrower hereunder (or, if not provided for in the
Intercreditor Agreement, then in such manner as the Liquidity Provider shall
deem appropriate).
Section 2.08 Book
Entries. The
Liquidity Provider shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower resulting from
Advances made from time to time and the amounts of principal and interest
payable hereunder and paid from time to time in respect thereof; provided,
however, that the failure by the Liquidity Provider to maintain such account or
accounts shall not affect the obligations of the Borrower in respect of
Advances.
Section 2.09 Payments from Available
Funds Only. All
payments to be made by the Borrower under this Agreement, 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 and payments under the Fee
Letter and Section 6 of the Note Purchase Agreement and only to the extent
that the Borrower shall have sufficient income or proceeds therefrom to enable
the Borrower to make payments in accordance with the terms hereof after giving
effect to the priority of payments 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
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 45th day and no later than the 30th 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 30th 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 (including funded obligations) 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, W-8ECI or W-9, 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 or Applied Special Termination Advance, from and including the
date on which the
amount
thereof was withdrawn from the Cash Collateral Account to pay interest on the
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 or Applied
Special Termination Advance, the date on which the Cash Collateral Account is
fully replenished in respect of such Advance) and (ii) any other amount due
hereunder (whether fees, commissions, expenses or other amounts or, to the
extent permitted by law, installments of interest on Advances or any such other
amount) 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 the case may be, as in effect for such
day, but in no event at a rate per annum greater than the maximum rate permitted
by applicable law; provided, however, that, if at
any time the otherwise applicable interest rate as set forth in this
Section 3.07 shall exceed the maximum rate permitted by applicable law,
then any subsequent reduction in such interest rate will not reduce the rate of
interest payable pursuant to this Section 3.07 below the maximum rate
permitted by applicable law until the total amount of interest accrued equals
the amount of interest that would have accrued if such otherwise applicable
interest rate as set forth in this Section 3.07 had at all times been in
effect.
(b) Except as
provided in clause (e) below, each Advance will be either a Base Rate
Advance or a LIBOR Advance as provided in this Section. Each such
Advance will be a Base Rate Advance for the period from the date of its
borrowing to (but excluding) the third LIBOR Business Day following the
Liquidity Provider’s receipt of the Notice of Borrowing for such Advance, except
with respect to any Special Termination Advance, which shall be a LIBOR Advance
from the date of its borrowing (for the avoidance of doubt, any Unapplied
Special Termination Advance and any Applied Special Termination Advance shall
bear interest hereunder at the same rate). 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 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 and
Continental;
(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 Trustee, 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
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 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) Richards, Layton & Finger, P.A., 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
Agreement shall have been satisfied or waived and all conditions precedent to
the purchase of the Class A 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 the
Effective Date is the date hereof. Upon receipt by the Borrower of
such certificate, all conditions precedent to the effectiveness of
Section 2.01 shall be deemed to 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.
Section 4.03 Representations and
Warranties. The
representations and warranties of the Borrower as Subordination Agent in Section
5.2 of the Participation Agreements shall be deemed to be incorporated into this
Agreement as if set out in full herein and as if such representations and
warranties were made by the Borrower to the Liquidity Provider. In
addition, the Borrower represents and warrants to the Liquidity Provider
that:
(a) Investment Company
Act. The Borrower is not an “investment company” under the
Investment Company Act of 1940; and
(b) Margin
Stock. The Borrower is not engaged principally, or as one of
its important activities, in the business of extending credit for the purpose,
whether immediate, incidental or ultimate, of buying or carrying “margin stock”
within the meaning of Regulation U, and no part of the proceeds of the Advances
will be used for the purpose, whether immediate, incidental or ultimate, of
buying or carrying any such “margin stock”.
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 AND SPECIAL TERMINATION
Section 6.01 Liquidity Events of
Default. If
(a) any Liquidity Event of Default has occurred and is continuing and
(b) there is a Performing Note Deficiency, the Liquidity Provider may, in
its discretion, deliver to the Borrower a Termination Notice, the effect of
which shall be to cause (i) the obligation of the Liquidity Provider to
make Advances hereunder to expire on the fifth Business Day after the date on
which such Termination Notice is received by the Borrower, (ii) the
Borrower to promptly request, and the Liquidity Provider to promptly make, a
Final Advance in accordance with Section 2.02(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.
Section 6.02 Special
Termination. If
the aggregate Pool Balance of the Class A Certificates is greater than the
aggregate outstanding principal amount of the Series A Equipment Notes (other
than any Series A Equipment Notes previously sold or with respect to which
the
collateral
securing such Series A Equipment Notes has been disposed of) at any time during
the 18 month period prior to July 8, 2016 the Liquidity Provider may, in its
discretion, deliver to the Borrower a Special 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 Special Termination Notice is received by the Borrower, (ii) the Borrower
to promptly request, and the Liquidity Provider to promptly make, a Special
Termination Advance in accordance with Section 2.02(g) and Section 3.5(m) of the
Intercreditor Agreement, and (iii) subject to Sections 2.07 and 2.09, 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. The Borrower shall
give all Notices of Borrowing via telecopier; provided, that, in
the event of a transmission failure, the Borrower shall use reasonable efforts
to deliver the applicable Notice of Borrowing to the Liquidity Provider on the
same Business Day using such other means as may be reasonably deemed necessary
by the Borrower. 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, five Business Days after
being 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 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 3.5(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). In addition, the immediately preceding sentence
and this sentence of Section 7.08(a) and the first sentence of Section 7.08(b)
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 with respect to the provisions
referred to in this sentence. 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) Borrower
agrees that each participant shall be entitled to the benefits of Sections 3.01,
3.02, 3.03 and 3.09 to the same extent as if it were the Liquidity Provider and
had acquired its interest by assignment pursuant to Section 7.08(a); provided, however, that (A)
a participant shall not be entitled to receive any greater payment under Section
3.01, 3.02 or 3.03 than the Liquidity Provider would have been entitled to
receive with respect to the participation sold to such participant, unless the
sale of such participation is made with the prior written consent of the
Borrower and Continental and (B) a participant that is not incorporated in the
United States or a state thereof shall not be entitled to the benefits of
Section 3.03 unless the Borrower and Continental are notified of the
participation sale to such participant and such participant agrees to comply
with Section 3.03 as if it were the Liquidity Provider. Except as
specifically set forth in clauses (A) and (B) above nothing herein shall require
any notice to Borrower or any other Person in connection with the sale of any
participation.
(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 exclusive 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; provided, that, in the case Continental is a debtor in a proceeding
under the Bankruptcy Code, each party also submits for itself and its property
to the court that has jurisdiction over the bankruptcy proceedings;
(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.
Section 7.18 Fiduciary
Duty. The Liquidity Provider and its Affiliates may have
economic interests that conflict with those of the Borrower, its stockholders
and/or its Affiliates. The Borrower agrees that nothing in the
Operative Agreements or otherwise will be deemed to create an advisory,
fiduciary or agency relationship or fiduciary or implied duty between the
Liquidity Provider or its Affiliates, on the one hand, and the Borrower, its
stockholders or its Affiliates, on the other. The Borrower
acknowledges and agrees that (a) the transactions contemplated by the Operative
Agreements (including the exercise of rights and remedies hereunder and
thereunder) are arm’s-length commercial transactions between the Liquidity
Provider and its Affiliates, on the one hand, and the Borrower, on the other,
and (b) in connection therewith and with the process leading thereto, (i)
neither the Liquidity Provider or its Affiliates have assumed an advisory or
fiduciary responsibility in favor of the Borrower, its stockholders or its
Affiliates with respect to the transactions contemplated hereby (or the exercise
of rights or remedies with respect thereto) or the process leading thereto
(irrespective of whether the Liquidity Provider or its Affiliates have advised,
are currently advising or will advise the Borrower, its stockholders or its
Affiliates on other matters) or any other obligation to the Borrower except the
obligations expressly set forth in the Operative Agreements and (ii) each of the
Liquidity Provider and its Affiliates is acting solely as principal and not as
the agent or fiduciary of the Borrower, its management, stockholders, creditors
or any other Person. The Borrower acknowledges and agrees that the
Borrower has consulted its own legal and financial advisors to the extent it
deemed appropriate and that it is responsible for making its own independent
judgment with respect to such transactions and the process leading
thereto. The
Borrower
agrees that it will not claim that the Liquidity Provider or its Affiliates have
rendered advisory services of any nature or respect, or owes a fiduciary or
similar duty to the Borrower, in connection with such transaction or the process
leading thereto.
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.
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WILMINGTON TRUST
COMPANY, not in its individual capacity but solely as Subordination
Agent, as agent and trustee for the Class A Trust,
as
Borrower
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By:
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Name:
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Title:
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GOLDMAN SACHS BANK
USA,
as
Liquidity Provider
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By:
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Name:
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Title:
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TO
REVOLVING
CREDIT AGREEMENT
CERTAIN
ECONOMIC TERMS
1. Applicable
Margin (Unpaid Advance (including, without limitation, any Unapplied Special
Termination Advance and any Applied Special Termination Advance)/Applied
Provider Advance): 4.50% per annum.
2. Initial
Expiry Date: June 29, 2010.
3. Liquidity
Event of Default Delivery Period
threshold: $150,000,000.
4. Initial
Maximum Commitment: $53,289,697.
5. Prospectus
Supplement date: June 16, 2009.
TO
REVOLVING
CREDIT AGREEMENT
ADMINISTRATION
DETAILS
Borrower:
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WILMINGTON
TRUST COMPANY
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Address:
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Rodney
Square North
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1100
North Market Square
Wilmington,
DE 19890-1605
Attention: Corporate
Capital Market Services
Telephone: (302)
636-6296
Telecopy: (302)
636-4140
Liquidity
Provider:
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GOLDMAN
SACHS BANK USA
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Address:
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30
Hudson Street, 36th
Floor
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Telephone: (212)
357-4350
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Account
Details:
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BANK: CITIBANK,
N.A.
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NEW YORK,
NY
ABA #:
021000089
ACCT.
NAME: GOLDMAN SACHS BANK USA
ACCOUNT
#: 30627664
REFERENCE: CONTINENTAL
AIRLINES
ATTN: BANK
LOAN OPERATIONS
TO
REVOLVING
CREDIT AGREEMENT
INTEREST
ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the “Borrower”), hereby certifies
to Goldman Sachs Bank USA (the “Liquidity
Provider”), with reference to the Revolving Credit Agreement (2009-1A)
dated as of July 1, 2009, 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, any
Additional 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 _________, ____.
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WILMINGTON TRUST
COMPANY, not in its individual capacity but solely as Subordination
Agent, as Borrower
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By:
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Name:
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Title:
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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 Goldman Sachs Bank USA (the “Liquidity
Provider”), with reference to the Revolving Credit Agreement (2009-1A)
dated as of July 1, 2009, 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 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 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, any Additional 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 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 _________, ____.
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WILMINGTON TRUST
COMPANY, not in its individual capacity but solely as Subordination
Agent, as Borrower
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By:
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Name:
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Title:
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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 Goldman Sachs Bank USA (the “Liquidity
Provider”), with reference to the Revolving Credit Agreement (2009-1A)
dated as of July 1, 2009, between the Borrower and the Liquidity Provider (the
“Liquidity
Agreement”; the terms defined therein and not otherwise defined herein
being used herein as therein defined or referenced), that:
(1) The
Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The
Borrower is delivering this Notice of Borrowing for the making of the Downgrade
Advance by the Liquidity Provider to be used for the funding of the Cash
Collateral Account in accordance with Section 3.5(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 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, any Additional 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 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 _________, ____.
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WILMINGTON TRUST
COMPANY, not in its individual capacity but solely as Subordination
Agent, as Borrower
|
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By:
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Name:
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Title:
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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 Goldman Sachs Bank USA (the “Liquidity
Provider”), with reference to the Revolving Credit Agreement (2009-1A)
dated as of July 1, 2009, between the Borrower and the Liquidity Provider (the
“Liquidity
Agreement”; the terms defined therein and not otherwise defined herein
being used herein as therein defined or referenced), that:
(1) The
Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The
Borrower is delivering this Notice of Borrowing for the making of the Final
Advance by the Liquidity Provider to be used for the funding of the Cash
Collateral Account in accordance with Section 3.5(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 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, any
Additional 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 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 _________, ____.
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WILMINGTON TRUST
COMPANY, not in its individual capacity but solely as Subordination
Agent, as Borrower
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By:
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Name:
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Title:
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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 July 1, 2009 between Wilmington Trust Company, as
Subordination Agent, as agent and trustee for the Continental Airlines Pass
Through Trust, 2009-1A-[O/S], as Borrower, and Goldman Sachs Bank USA (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 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 a consequence of your receipt of this
notice.
Terms
used but not defined herein shall have the respective meanings ascribed thereto
in or pursuant to the Liquidity Agreement.
THIS
NOTICE IS THE “NOTICE OF 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.
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Very
truly yours,
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GOLDMAN SACHS BANK USA,
as Liquidity Provider
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By:
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Name:
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Title:
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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 July 1, 2009, between Wilmington Trust Company, as
Subordination Agent, as agent and trustee for the Continental Airlines Pass
Through Trust, 2009-1A-[O/S], as Borrower, and Goldman Sachs Bank USA (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 _______________, ____.
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WILMINGTON TRUST
COMPANY, not in its individual capacity but solely as Subordination
Agent, as Borrower
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By:
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Name:
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Title:
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TO
REVOLVING
CREDIT AGREEMENT
SPECIAL
TERMINATION ADVANCE NOTICE OF BORROWING
The
undersigned, a duly authorized signatory of the undersigned borrower (the “Borrower”),
hereby certifies to Goldman Sachs Bank USA (the “Liquidity
Provider”), with reference to the Revolving Credit Agreement (2009-1A) dated as of
July 1, 2009, between the Borrower and the Liquidity Provider (the “Liquidity
Agreement”; the terms defined therein and not otherwise defined herein
being used herein as therein defined or referenced), that:
(1) The
Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The
Borrower is delivering this Notice of Borrowing for the making of the Special
Termination Advance by the Liquidity Provider to be used for the funding of the
Cash Collateral Account in accordance with Section 3.5(m) of the
Intercreditor Agreement by reason of the receipt by the Borrower of a Special
Termination Notice from the Liquidity Provider with respect to the Liquidity
Agreement, which Advance is requested to be made on ____________,
____. The Special Termination Advance should be transferred to [name
of bank/wire instructions/ABA number] in favor of account number
[ ], reference
[ ].
(3) The
amount of the Special Termination Advance requested hereby (i) is
$_________________.__, which equals the Maximum Available Commitment on the date
hereof and is to be applied in respect of the funding of the Cash Collateral
Account in accordance with Section 3.5(m) 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, any Additional 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 Cash Collateral Account
and apply the same in accordance with the terms of Section 3.5(m) of the
Intercreditor Agreement, (b) no portion of such amount shall be applied by
the Borrower for any other purpose and (c) no portion of such amount until
so applied shall be commingled with other funds held by the
Borrower.
The
Borrower hereby acknowledges that, pursuant to the Liquidity Agreement,
(A) the making of the Special Termination Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the obligation
of the Liquidity Provider to make further Advances under the Liquidity
Agreement; and (B) following the making by the Liquidity
Provider
of the Special Termination Advance requested by this Notice of Borrowing, the
Borrower shall not be entitled to request any further Advances under the
Liquidity Agreement.
IN WITNESS WHEREOF, the
Borrower has executed and delivered this Notice of Borrowing as of the ____ day
of _________, ____.
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WILMINGTON TRUST
COMPANY, not in its individual capacity but solely as Subordination
Agent, as Borrower
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By:
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Name:
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Title:
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SCHEDULE I
TO
SPECIAL
TERMINATION ADVANCE NOTICE OF BORROWING
[Insert
copy of computations in accordance with Special Termination Advance Notice of
Borrowing]
TO
REVOLVING
CREDIT AGREEMENT
NOTICE
OF SPECIAL 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 July 1, 2009 between Wilmington Trust Company, as
Subordination Agent, as agent and trustee for the Continental Airlines Pass
Through Trust, 2009-1A-[O/S], as Borrower, and Goldman Sachs Bank USA (the
“Liquidity
Agreement”)
Ladies
and Gentlemen:
You are
hereby notified that pursuant to Section 6.02 of the Liquidity Agreement,
by reason of the aggregate Pool Balance of the Class A Certificates exceeding
the aggregate outstanding principal amount of the Series A Equipment Notes
(other than any Series A Equipment Notes previously sold or with respect to
which the collateral securing such Series A Equipment Notes has been disposed
of) during the 18 month period prior to July 8, 2016, we are giving this notice
to you in order to cause (i) our obligations to make Advances under the
Liquidity Agreement to terminate on the fifth Business Day after the date on
which you receive this notice and (ii) you to request a Special Termination
Advance under the Liquidity Agreement pursuant to Section 3.5(m) of the
Intercreditor Agreement as a consequence of your receipt of this
notice. Terms used but not defined herein shall have the respective
meanings ascribed thereto in or pursuant to the Liquidity
Agreement.
THIS
NOTICE IS THE “NOTICE OF SPECIAL TERMINATION” PROVIDED FOR UNDER THE LIQUIDITY
AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY
AGREEMENT WILL TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU
RECEIVE THIS NOTICE.
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Very
truly yours,
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GOLDMAN SACHS BANK USA,
as Liquidity Provider
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By:
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Name:
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Title:
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cc: Wilmington
Trust Company,
as Class A Trustee
e60709081ex4_4.htm
The
Goldman Sachs Group, Inc. | One New York Plaza | New York, New York
10004
Tel:
212-902-1000
Goldman
Sachs
GENERAL
GUARANTEE AGREEMENT
This
General Guarantee Agreement, dated December 1, 2008 (this “Guarantee”), is made
by The Goldman Sachs Group, Inc. (the “Guarantor”), a corporation duly organized
under the laws of the State of Delaware, in favor of each person (each, a
“Party”) to whom Goldman Sachs Bank USA, a New York state-chartered bank (as
successor-in-interest to Goldman Sachs Bank USA, a Utah Corporation) and a
subsidiary of the Guarantor (the “Company”), may owe any Obligations (as defined
below) from time to time. In this Guarantee, the “Company” shall also
mean any banking subsidiary of the Guarantor, whether now existing or hereafter
formed, that succeeds to the business of Goldman Sachs Bank USA.
1. Guarantee. For
value received, the Guarantor hereby unconditionally and, subject to the
provisions of paragraphs number six and seven, irrevocably guarantees to each
Party, the complete payment when due, whether by acceleration or otherwise, of
all payment obligations, whether now in existence or hereafter arising (other
than non-recourse payment obligations) of the Company, including, without
limitation, all payment obligations (other than non-recourse payment
obligations) in connection with any deposit, loan, letter of credit or similar
borrowing or lending obligation or arising under any swap, futures, option,
forward or other derivative instrument (the “Obligations”); provided, however, that, with respect
to any Party, “Obligations” shall not include any payment obligations, whether
now in existence or hereafter arising, of the Company in connection with any
certificate of deposit of the Company if such Party is an Unaffiliated Broker or
has purchased such certificate of deposit from an Unaffiliated Broker, in each
case whether the Unaffiliated Broker acts as agent or principal, whether the
purchase occurs in connection with the original issuance or any subsequent
transaction and whether the issuance or purchase of such certificate of deposit
occurred or will occur at any time in the past or
future. “Unaffiliated Broker” means any broker, dealer or other
financial intermediary other than Goldman, Sachs & Co. or any of its
affiliates. This Guarantee is one of payment and not of
collection.
2. Waiver
of Notice, etc. Except as may be required by the contract, agreement
or instrument creating the Obligations, the Guarantor hereby waives notice of
acceptance of this Guarantee and notice of the Obligations, and waives proof of
reliance, diligence, presentment, demand for payment, protest, notice of
dishonor or non-payment of the Obligations, suit, and the taking of any other
action by any Party against, and any other notice to, the Company, the Guarantor
or others.
3. Nature
of Guarantee. This Guarantee shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (a) the
validity or enforceability of any Obligation or right of offset with respect
thereto at any time and from time to time held by any Party or (b) any other
circumstance whatsoever (with or without notice to or knowledge of the Company
or the Guarantor) which might constitute an equitable or legal discharge of
the
Company
for the Obligations, or of the Guarantor under this Guarantee, in bankruptcy or
in any other instance; provided, however, that under no
circumstances will the Guarantor be liable to any Party hereunder for any amount
in excess of the amount which the Company actually owes to such Party and that
the Guarantor may assert any defense to payment available to the Company, other
than those arising in a bankruptcy or insolvency proceeding.
A Party
may at any time and from time to time without notice to or consent of the
Guarantor and without impairing or releasing the obligations of the Guarantor
hereunder: (1) agree with the Company to make any change in the
terms of the Obligations; (2) take or fail to take any action of any kind
in respect of any security for any obligation or liability of the Company to
such Party, (3) exercise or refrain from exercising any rights against the
Company or others in respect of the Obligations; or (4) compromise or
subordinate the Obligations. Any other suretyship defenses are hereby
waived by the Guarantor.
4. Reinstatement. The
Guarantor further agrees that this Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations, or interest thereon is rescinded or must otherwise be
restored or returned by such Party upon the bankruptcy, insolvency, dissolution
or reorganization of the Company.
5. Subrogation. The
Guarantor will not exercise any rights which it may acquire hereunder by way of
subrogation, as a result of a payment hereunder, until all due and unpaid
Obligations to such Party shall have been paid in full. Any amount
paid to the Guarantor in violation of the preceding sentence shall be held by
Guarantor for the benefit of such Party and shall forthwith be paid to such
Party to be credited and applied to the due and unpaid
Obligations. Subject to the foregoing, upon payment of all such due
and unpaid Obligations, the Guarantor shall be subrogated to the rights of such
Party against the Company with respect to such Obligations, and such Party
agrees to take at the Guarantor’s expense such steps as the Guarantor may
reasonably request to implement such subrogation.
6. Amendment
and Termination. This Guarantee may be amended or terminated, as to
one Party, all Parties or a group of specified Parties and as to one Obligation,
all Obligations or specified Obligations, at any time by (i) issuance by
the Guarantor of a press release reported by the Dow Jones News Service, the
Associated Press or a comparable national news service, or (ii) written
notice signed by the Guarantor, with such amendment or termination effective
with respect to a Party on the opening of business on the fifth New York
business day after earlier of the issuance of such press release or the receipt
of such written notice, as applicable; provided, however, that no such
amendment or termination may adversely affect the rights of any Party relating
to any Obligations incurred prior to the effectiveness of such amendment or
termination; provided
further, that any such
amendment or termination may become effective as to one Party whether or not it
becomes effective with respect to another Party.
7. Assignment. The
Guarantor may not assign its rights nor delegate its obligations under this
Guarantee with respect to a Party, in whole or in part, without prior written
consent of such Party, and any purported assignment or delegation absent such
consent is void, except for an assignment and delegation of all of the
Guarantor’s rights and obligations hereunder in whatever form the Guarantor
determines may be appropriate to a partnership, corporation, trust or other
organization in whatever form that succeeds to all or substantially all of the
Guarantor’s assets
and
business and that assumes such obligations by contract, operation of law or
otherwise. Upon any such delegation and assumption of obligations,
the Guarantor shall be relieved of and fully discharged from all obligations
hereunder, whether such obligations arose before or after such delegation and
assumption.
5. Governing
Law and Jurisdiction. THIS GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. GUARANTOR AGREES TO THE
EXCLUSIVE JURISDICTION OF COURTS LOCATED IN THE STATE OF NEW YORK, UNITED STATES
OF AMERICA, OVER ANY DISPUTES ARISING UNDER OR RELATING TO THIS
GUARANTEE.
IN
WITNESS WHEREOF, the Guarantor has duly executed this Guarantee as of the day
and year first above written.
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THE
GOLDMAN SACHS GROUP, INC.
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By:
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Name:
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Elizabeth
E. Beshel
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Title:
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Treasurer
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e60709081ex4_5.htm
INTERCREDITOR
AGREEMENT
(2009-1)
Dated as
of
July 1,
2009
AMONG
WILMINGTON
TRUST COMPANY,
not in
its individual capacity
but
solely as Trustee under the
Continental
Airlines Pass Through Trust 2009-1A
GOLDMAN
SACHS BANK USA,
as
Liquidity Provider
AND
WILMINGTON
TRUST COMPANY,
not in
its individual capacity except
as
expressly set forth herein but
solely as
Subordination Agent and Trustee
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INTERCREDITOR
AGREEMENT
INTERCREDITOR
AGREEMENT dated as of July 1, 2009, among WILMINGTON TRUST COMPANY, a Delaware
banking corporation ("WTC"), not in its
individual capacity but solely as Trustee of the Trust (each as defined below);
GOLDMAN SACHS BANK USA, a corporation organized under the banking law of the
State of New York, as Liquidity Provider; and WILMINGTON TRUST COMPANY, not in
its individual capacity except as expressly set forth herein, but solely as
Subordination Agent and trustee hereunder (in such capacity, together with any
successor appointed pursuant to Article VIII hereof, the "Subordination
Agent").
WHEREAS,
all capitalized terms used herein shall have the respective meanings referred to
in Article I hereof;
WHEREAS,
pursuant to each Indenture, Continental will issue on a recourse basis the
Series A Equipment Notes to finance or refinance, as the case may be, the
related Aircraft;
WHEREAS,
pursuant to the Financing Agreements, the Class A Trust will acquire the Series
A Equipment Notes having an interest rate equal to the Stated Interest Rate
applicable to the Class A Certificates to be issued by the Class A
Trust;
WHEREAS,
pursuant to the Class A Trust Agreement, the Class A Trust proposes to issue the
Class A Certificates having the interest rate and the final distribution date
described in the Class A 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 in the aggregate face amount
set forth opposite the name of the Class A Trust on Schedule I thereto on the
terms and subject to the conditions set forth therein;
WHEREAS,
the Liquidity Provider proposes to enter into a revolving credit agreement
relating to the Class A Certificates with the Subordination Agent, as agent for
the Class A Trustee, for the benefit of the Class A
Certificateholders;
WHEREAS,
The Goldman Sachs Group, Inc., a Delaware corporation (the "Guarantor"), will
guarantee in full, pursuant to a General Guarantee Agreement, dated as of
December 1, 2008, made by the Guarantor (the "Guarantee
Agreement"), the payment obligations of Goldman Sachs Bank USA under the
Liquidity Facility; and
WHEREAS,
it is a condition precedent to the obligations of the Underwriters under the
Underwriting Agreement that the Subordination Agent, the Class A Trustee and the
Liquidity Provider agree to the terms of subordination set forth in this
Agreement in respect of each Class of Certificates, and the Subordination Agent,
the Class A Trustee and the Liquidity Provider, by entering into this Agreement,
hereby acknowledge and agree to such terms of subordination and the other
provisions of this Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, and 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 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.
"Additional
Certificateholders" has the meaning specified in Section
9.1(c).
"Additional
Certificates" has the meaning specified in Section 9.1(c).
"Additional Equipment
Notes" has the meaning specified in Section 9.1(c).
"Additional Trust" has
the meaning specified in Section 9.1(c).
"Additional Trust
Agreement" has the meaning specified in Section 9.1(c).
"Additional Trustee"
has the meaning specified in Section 9.1(c).
"Administration
Expenses" has the meaning specified in clause "first" of
Section 3.2.
"Advance" means any
Advance as defined in the Liquidity Facility.
"Affiliate" means,
with respect to any Person, any other Person directly or indirectly controlling,
controlled by or under common control with such Person. For
the
purposes
of this definition, "control" means the power, directly or indirectly, to direct
or cause the direction of the management and policies of such Person whether
through the ownership of voting securities or by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"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
Agreement" means the Assignment and Assumption Agreement to be executed
by the Trustee in its capacity as trustee of the Original Class A Trust and as
trustee of the Successor Class A Trust in accordance with the Class A Trust
Agreement, as the same may be amended, modified or supplemented from time to
time.
"Available Amount"
means, with respect to the 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 the
Liquidity Facility, also is a "Business Day" as defined in the Liquidity
Facility.
"Cash Collateral
Account" means an Eligible Deposit Account in the name of the
Subordination Agent maintained at an Eligible Institution, which shall be the
Subordination Agent if it shall so qualify, into which all amounts drawn under
the Liquidity Facility pursuant to Section 3.5(c), 3.5(d), 3.5(i) or 3.5(m)
shall be deposited.
"Certificate" means a
Class A Certificate and/or any Additional Certificates as the context may so
require.
"Certificateholder"
means any holder of one or more Certificates.
"Class" means a class
of Certificates issued by the Class A Trust and/or any Additional Trust as the
context may so require.
"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 Trust" means
(i) prior to the Transfer, the Continental Airlines Pass Through Trust 2009-1A-O
created and administered pursuant to the Class A Trust Agreement and (ii) after
the Transfer, the Continental Airlines Pass Through Trust 2009-1A-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. 2009-1A-O thereto dated as of the date
hereof, governing the creation and administration of the Continental Airlines
Pass Through Trust 2009-1A-O (the "Original Class A
Trust") 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. 2009-1A-S thereto, governing the
creation and administration of the Continental Airlines Pass Through Trust
2009-1A-S (the "Successor Class A
Trust") 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.
"Closing Date" means
July 1, 2009.
"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.
"Delivery Period Expiry
Date" means the earlier of (a) December 31, 2009 and (b) the date on
which the Series A Equipment Notes with respect to all Aircraft (as defined in
the Note Purchase Agreement) (including any Substitute Aircraft in lieu of the
New Aircraft (as defined in the Note Purchase Agreement)) have been purchased by
the Class A Trust in accordance with the Note Purchase Agreement.
"Deposit Agreement"
means the Deposit Agreement pertaining to the Class A Certificates, 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 The
Bank of New York Mellon, as depositary under the Deposit Agreement.
"Deposits" has the
meaning set forth in the Deposit Agreement.
"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"
means (i) the short-term unsecured debt rating or short-term issuer credit
rating, as the case may be, of the Liquidity Provider (other than the initial
Liquidity Provider) then issued by either Rating Agency being lower than the
applicable Threshold Rating and (ii) in the case of the initial Liquidity
Facility, the short-term unsecured debt rating or short-term issuer credit
rating, as the case may be, of the Guarantor then issued by either Rating Agency
being lower than the applicable Threshold Rating or the Guarantee ceasing to be
in full force and effect or becoming invalid or unenforceable or the Guarantor
repudiating its liability thereunder, unless each Rating Agency shall have
confirmed in writing on or prior to the date of any downgrading of the Liquidity
Provider or the Guarantor, as the case may be, that such downgrading will not
result in the downgrading, withdrawal or suspension of the ratings of the Class
A Certificates, in which case such downgrading of such short-term unsecured debt
rating or short-term issuer credit rating, as the case may be, shall not
constitute a Downgrade Event.
"Downgraded Facility"
has the meaning specified in Section 3.5(c).
"Drawing" means an
Interest Drawing, a Final Drawing, a Special Termination 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 the Liquidity Provider so long as the Liquidity Provider is an Eligible
Institution; provided that the
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 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 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, any series of Additional
Equipment Notes 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 the Escrow and Paying Agent Agreement dated as of the
date hereof between the Escrow Agent, the Underwriters, the Trustee 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.
"Expected
Distributions" means, with respect to the Class A Certificates on any
Current Distribution Date, the difference between (A) the Pool Balance of the
Class A 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 the Class A Certificates) and (B) the Pool Balance
of the Class A Certificates as of the Current Distribution Date calculated on
the basis that (i) the principal of the Non-Performing Equipment Notes held in
the Class A Trust has been paid in full and such payments have been distributed
to the holders of the Class A Certificates, (ii) the principal of the Performing
Equipment Notes held in the Class A 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 the Class A Certificates and (iii) the
principal of any Equipment Notes formerly held in the Class A 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 the Class A 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 Class A
Certificates). For purposes of calculating Expected Distributions
with respect to the Class A Certificates, any Premium paid on the Series A
Equipment Notes held in the Class A Trust which has not been distributed to the
Class A Certificateholders (other than such Premium or a portion thereof applied
to the payment of interest on the Class A Certificates or the reduction of the
Pool Balance of the Class A Trust) shall be added to the amount of such Expected
Distributions.
"Expiry Date" has the
meaning set forth in the Liquidity Facility.
"Facility Office"
means the office of the Liquidity Provider, presently located at New York, New
York, or such other office as the Liquidity Provider from time to time shall
notify the Class A Trustee as its "Facility Office" under the Liquidity
Facility; 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 of the Liquidity Facility.
"Fee Letters" means,
collectively, (i) the Fee Letter dated as of the date hereof among Goldman Sachs
Bank USA, the Subordination Agent and Continental with respect to the initial
Liquidity Facility and (ii) any fee letter entered into among the Subordination
Agent, any Replacement Liquidity Provider and Continental in respect
of the Liquidity Facility.
"Final Distributions"
means, with respect to the Class A Certificates on any Distribution Date, the
sum of (x) the aggregate amount of all accrued and unpaid interest on the Class
A Certificates (excluding interest, if any, payable with respect to the Deposits
relating to the Class A Trust) and (y) the Pool Balance of the Class A
Certificates as of the immediately preceding Distribution Date (less the amount
of the Deposits for the Class A Certificates as of such preceding Distribution
Date other than any portion of such Deposits thereafter used to acquire the
Series A Equipment Notes pursuant to the Note Purchase
Agreement). For purposes of calculating Final Distributions with
respect to the Class A Certificates, any Premium paid on the Series A Equipment
Notes held in the Class A Trust which has not been distributed to the Class A
Certificateholders (other than such Premium or a portion thereof applied to the
payment of interest on the Class A Certificates or the reduction of the Pool
Balance of the Class A Trust) shall be added to the amount of such Final
Distributions.
"Final Drawing" has
the meaning specified in Section 3.5(i).
"Final Legal Distribution
Date" means, with respect to the Class A Certificates, January 8,
2018.
"Financing Agreement"
means each of the Participation Agreements, the Indentures 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 each date on which interest is due and payable under the
Liquidity Facility on a Downgrade Drawing, Non-Extension Drawing, a Special
Termination Drawing or Final Drawing thereunder, other than any such date on
which interest is due and payable under the Liquidity Facility only on an
Applied Provider Advance or Applied Special Termination Advance (as such terms
are defined in the 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.
"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" has the meaning assigned to such term in the Liquidity
Facility.
"Liquidity Expenses"
means all Liquidity Obligations other than (i) the principal amount of any
Drawings under the Liquidity Facility and (ii) any interest accrued on any
Liquidity Obligations.
"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 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.
"Liquidity
Obligations" means all principal, interest, fees and other amounts owing
to the Liquidity Provider under the Liquidity Facility, Section 8.1 of the
Participation Agreements or the Fee Letters.
"Liquidity Provider"
means Goldman Sachs Bank USA or, if applicable, any Replacement Liquidity
Provider which has issued a Replacement Liquidity Facility to replace the
Liquidity Facility pursuant to Section 3.5(e).
"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, 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.
"Moody's" means
Moody's Investors Service, Inc.
"Non-Controlling
Party" means, at any time, any Trustee or other Person 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, the 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.
"Officer's
Certificate" of any Person means a certification signed by a Responsible
Officer of such Person.
"Operative Agreements"
means this Agreement, the Liquidity Facility, the Guarantee Agreement, the Trust
Agreement, 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.
"Original Class A
Trust" has the meaning assigned to such term in the definition of "Class
A Trust Agreement".
"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(c).
"Paying Agent" means
Wilmington Trust Company, as paying agent under the 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
Agreement.
"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 the Series A Equipment Notes 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 the Class A Certificates, as of any date, (i) the original
aggregate face amount of the Class A Certificates less (ii) the
aggregate amount of all payments made as of such date in respect of the Class A
Certificates or in respect of Deposits relating to the Class A 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 the
Class A Trust or for the Class A Certificates issued by the Class A Trust as of
any date shall be computed after giving effect to any special distribution with
respect to unused Deposits, if any, payment of principal of the Equipment Notes
or payment with respect to other Trust Property held in the Class A Trust and
the distribution thereof to be made on that date.
"Post-Default
Appraisals" has the meaning specified in
Section 4.1(a)(iv).
"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 the Class A Trust Agreement, the failure to pay within 10
Business Days of the due date thereof: (i) the outstanding Pool
Balance of the Class A Certificates on the Final Legal Distribution Date for the
Class A Certificates or (ii) interest due on the Class A Certificates on
any Distribution Date (unless, in the case of the Class A Trust Agreement, the
Subordination Agent shall have made an Interest Drawing or a withdrawal from the
Cash Collateral Account with respect thereto in an aggregate amount sufficient
to pay such interest and shall have distributed such amount to the Class A
Trustee).
"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.
"Regular Distribution
Dates" means each January 8 and July 8, commencing on January 8, 2010;
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 distribution of interest for such
additional period.
"Replacement Liquidity
Facility" means an irrevocable revolving credit agreement (or agreements)
in substantially the form of the 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 Class A Certificates (before downgrading of such ratings,
if any, as a result of the downgrading of the 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 may have a stated
expiration date earlier than 15 days after the Final Legal Distribution Date of
the Class A 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 the 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 Class A Certificates, that would
be payable on the Class A 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 the Class A
Certificates on such day and without regard to expected future distributions of
principal on the Class A 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 the Liquidity Provider, any authorized officer of the Liquidity
Provider.
"Scheduled Payment"
means, with respect to any Series A 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 Class A Certificates with funds drawn under the Liquidity
Facility or withdrawn from the Cash Collateral Account, which payment represents
the payment of regularly scheduled interest accrued on the unpaid principal
amount of the related Series A Equipment Note; provided that any
payment of principal of, Premium, if any, or interest resulting from the
redemption or purchase of any Series A 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 under the applicable Series A
Equipment Note.
"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 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 outstanding as of such Special Distribution
Date.
"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.
"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.
"Special Termination
Drawing" has the meaning specified in Section 3.5(m).
"Special Termination
Notice" has the meaning specified in the Liquidity Facility.
"Standard &
Poor's" means Standard & Poor's Ratings Services, a Standard &
Poor's Financial Services LLC business.
"Stated Amount" means
the Maximum Commitment (as defined in the Liquidity Facility) of the Liquidity
Provider under the Liquidity Facility.
"Stated Expiration
Date" has the meaning specified in Section 3.5(d).
"Stated Interest Rate"
means, with respect to the Class A Certificates, 9.000% per annum.
"Subordination Agent"
has the meaning specified in the recital of parties 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 Class A
Trust" has the meaning assigned to such term in the definition of "Class
A Trust Agreement".
"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"
has the meaning assigned to such term in the 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.
"Transfer" means, with
respect to the Class A Trust, the transfers contemplated by the Assignment and
Assumption Agreement.
"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 Class A Certificates,
(y) the Acceleration of all of the outstanding Series A 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 $150,000,000 or (z)
the occurrence of a Continental Bankruptcy Event.
"Trust" means the
Class A Trust and/or any Additional Trust created to issue Additional
Certificates in accordance with the provisions of Section 9.1(c) hereof, as the
context may so require.
"Trust Accounts" has
the meaning specified in Section 2.2(a).
"Trust Agreement"
means the Class A Trust Agreement and/or any Additional Trust Agreement as the
context may so require.
"Trust Property" with
respect to any Trust, has the meaning set forth in the Trust Agreement for such
Trust.
"Trustee" means the
Class A Trustee and/or any Additional Trustee as the context may so
require.
"Trustee Incumbency
Certificate" has the meaning specified in Section 2.5(b).
"Trustee
Representatives" has the meaning specified in
Section 2.5(b).
"Unapplied Provider
Advance" has the meaning specified in the Liquidity
Facility.
"Underwriters" means
Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co. and Calyon
Securities (USA) Inc.
"Underwriting
Agreement" means the Underwriting Agreement dated June 16, 2009 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.
"Written Notice"
means, from the Subordination Agent, any Trustee or the 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
specified 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
Facility 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 the Liquidity Provider, by entering into the
Liquidity Facility, 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, the 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 Provider 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
Provider. The Subordination Agent shall establish and maintain the
Cash Collateral Account 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 Account shall,
together
with the Special Payments Account and 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, a Non-Extension Drawing or a
Special Termination Drawing under the Liquidity Facility, the Subordination
Agent shall invest and reinvest such funds in Eligible Investments at the
direction of Continental (or, if and to the extent so specified to the
Subordination Agent by Continental, the Liquidity Provider); provided further, however, that,
notwithstanding the foregoing proviso, following the making of a Downgrade
Drawing or a Non-Extension Drawing, the Subordination Agent shall invest and
reinvest the amounts in the Cash Collateral Account in Eligible Investments
pursuant to the written instructions of the Liquidity Provider; 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
Account 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 Provider, 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 the Class A 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 the 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
Provider. 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 and the Liquidity Provider 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 and (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, (x) 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
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, and (y) if a Special Termination Drawing has been made under the
Liquidity Facility and has not been converted into a Final Drawing, the
outstanding amount of such Special Termination Drawing shall be distributed to
the Liquidity Provider"; and
(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".
(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, the Liquidity Provider, any Paying Agent, the
Depositary, the Guarantor or the 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 the
Liquidity Provider and each Trustee, and from time to time thereafter may
furnish to the Liquidity Provider and each Trustee, at the Subordination Agent's
discretion, or upon the 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 the 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, the Liquidity Provider shall furnish to the
Subordination Agent, and from time to time thereafter may furnish to the
Subordination Agent, at the 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 the Liquidity Provider
certifying as to the incumbency and specimen signatures of any officer,
attorney-in-fact, agent or other designated representative of the 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 the
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
Liquidity Provider.
SECTION 2.6. Controlling
Party. (a) The
Trustees and the Liquidity Provider 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. 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 and (y) upon payment of
Final Distributions to the holders of Class A Certificates, the Additional
Trustee (if any). 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 the Liquidity Facility shall have been drawn
(excluding a Downgrade Drawing, a Non-Extension Drawing or a Special Termination
Drawing but including a Final Drawing or a Downgrade Drawing, a Non-Extension
Drawing or a Special Termination Drawing that has been converted to a Final
Drawing under the Liquidity Facility) and shall remain unreimbursed, (ii) the
date on which the portion of any Downgrade Drawing, Non-Extension Drawing or
Special Termination Drawing equal to the Required Amount as of such date under
the Liquidity Facility shall have become and remain "Applied Downgrade
Advances", "Applied Non-Extension Advances" or "Applied Special Termination
Advances", as the case may be, under and as defined in the 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
$150,000,000, 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 (so long as it has not defaulted in its obligation to make
any Drawing under the 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) 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.
(e) 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.
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) the
Class A Trustee shall separately set forth the amounts to be paid in accordance
with clause "first" of Section 3.2 hereof (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 "eighth" of
Section 3.2 hereof;
(ii) the
Liquidity Provider 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
(iii) 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 the 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
the Liquidity Provider, its commitment or obligations under the 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 or the 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 any Trustee, the Liquidity Provider or the
Subordination Agent, as applicable, pursuant to Section 3.1(a) 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 "eighth" 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 the 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), 3.5(k) and 3.5(m),
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) the Class A Trustee for any amounts of the
nature described in clause (i) above actually incurred by it under the
Class A Trust Agreement (to the extent not previously reimbursed), shall be
distributed to the Class A Trustee, (iii) the 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 the Liquidity
Provider, and (iv) the Liquidity Provider or any Class A 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 the Liquidity Provider or the Class A
Trustee for the account of the Class A 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
the Liquidity Provider shall be distributed to the Liquidity
Provider;
third, (i) 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 Liquidity Facility), and (ii) if a Special Termination Drawing has been
made under the Liquidity Facility and has not been converted into a Final
Drawing, the outstanding amount of such Special Termination Drawing shall be
distributed to the Liquidity Provider;
fourth, such amount
as shall be required (A) if the 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 Liquidity Facility or (ii) a Final Drawing shall have occurred,
to fund the Cash Collateral Account up to its Required Amount shall be deposited
in the Cash Collateral Account, (B) if the 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 Liquidity Facility or (ii) a Final Drawing shall have occurred, to deposit
into the Cash Collateral Account an amount equal to the Required Amount shall be
deposited in the Cash Collateral Account, and (C) if, neither subclause (A) nor
subclause (B) of this clause "fourth" is applicable, to pay or reimburse the
Liquidity Provider in an amount equal to the amount of all Liquidity Obligations
then due (other than amounts payable pursuant to clause "second" or "third" of
this Section 3.2);
fifth, if any amounts
are to be distributed pursuant to either subclause (A) or (B) of clause "fourth"
above, then the Liquidity Provider shall be paid the excess of (x) the
aggregate outstanding amount of unreimbursed Advances (whether or not then due)
under the Liquidity Facility over (y) the Required Amount;
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) the Class A Trustee for any Tax
(other than Taxes imposed on compensation paid under the Class A Trust
Agreement), expense, fee, charge, loss or any other amount payable to the Class
A Trustee under the Class A Trust Agreements (to the extent not previously
reimbursed), shall be distributed to the Class A Trustee, and (iii) each
Class A 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 Class A Trustee for the account of the Class
A Certificateholder;
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 in full Expected Distributions to the holders of the
Class A Certificates on such Distribution Date shall be distributed to the Class
A Trustee; and
ninth, 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.
If
Additional Certificates have been issued pursuant to Section 9.1(c) hereof, any
and all distributions with respect to such Additional Certificates shall be made
following payment of Expected Distributions with respect to the Class A
Certificates, all as provided in an
amendment
hereto executed and delivered in connection with the issuance of such Additional
Certificates.
With
respect to clauses "first" and "sixth" above, no amounts shall be reimbursable
to the Subordination Agent, any Trustee, the 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 the Class A 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 the 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, the reference in clause "eighth" 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 Provider. Any
amounts distributed hereunder to the Liquidity Provider shall be paid to the
Liquidity Provider by wire transfer of funds to the account that the Liquidity
Provider shall provide to the Subordination Agent. The Subordination
Agent shall provide a Written Notice of any such transfer to the 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 to the account such Trustee shall provide to the Subordination
Agent.
SECTION 3.5. Liquidity
Facility. (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 (at the Stated
Interest Rate) (other than 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), 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 in an amount equal to the lesser
of (x) an amount sufficient to pay the amount of such accrued interest (at
the Stated Interest Rate) and (y) the Available Amount, and shall pay such
amount to the Class A Trustee in payment of such accrued interest.
(b) Application of Interest
Drawings. Notwithstanding anything to the contrary contained
in this Agreement, all payments received by the Subordination Agent in respect
of an Interest Drawing under the Liquidity Facility and all amounts withdrawn by
the Subordination Agent from the 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.
(c) Downgrade
Drawings. (i) A Downgrade Drawing shall be requested by the
Subordination Agent as provided in Section 3.5(c)(iii), if at any time a
Downgrade Event shall have occurred (the Liquidity Facility following a
Downgrade Event being referred to as a "Downgraded
Facility"), unless an event described in Section 3.5(c)(ii) occurs with
respect to the Liquidity Facility.
(ii) If at any time the
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 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 the Downgraded
Facility).
(iii) Upon the occurrence of
any Downgrade Event, 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 the
Downgraded Facility), request a drawing in accordance with and to the extent
permitted by the 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 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 the Liquidity Provider.
(d) Non-Extension
Drawings. If at any time the Liquidity Facility 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 the Class A Certificates, then, no earlier than the 45th
day and no later than the 30th day prior to the then Stated Expiration Date, the
Subordination Agent shall request that the 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 the Liquidity Provider under the Liquidity
Facility are earlier terminated in accordance with the Liquidity
Facility). Whether or not the Liquidity Provider has received a
request from the Subordination Agent, the Liquidity Provider shall advise the
Subordination Agent, no earlier than the 30th day
(or, if earlier, the date of the 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 (such period, with
respect to the 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,
the Liquidity Facility shall not have been replaced in accordance with Section
3.5(e) and (B) the 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, 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 the Available Amount 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 the Liquidity Facility (including any Replacement
Liquidity Facility provided pursuant to Section 3.5(e)(ii) hereof); provided, however, that the
Liquidity Provider shall not be replaced by Continental as the Liquidity
Provider during the period commencing on the 90th day
after the Closing Date and ending on the second anniversary of the Closing Date
unless (A) there shall have become due to the Liquidity Provider, or the
Liquidity Provider shall have demanded, amounts pursuant to Section 3.01, 3.02
or 3.03 of the Liquidity Facility and the replacement of the 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 the
Liquidity Provider will have the right to claim any such amounts (unless the
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 the Liquidity Provider setting forth the basis for such
determination and accompanied by an opinion of outside counsel selected by
Continental and reasonably acceptable to the 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 the Liquidity Provider (or its Facility Office) to maintain or fund its
LIBOR Advances as described in Section 3.10 of the Liquidity Facility, (C) the
Liquidity Facility of such 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 the Liquidity Facility of the Liquidity Provider or
(D) the Liquidity Provider shall have breached any of its payment (including,
without limitation, funding) obligations under the Liquidity
Facility. If such Replacement Liquidity Facility is provided at any
time after a Downgrade Drawing, a Non-Extension Drawing or a Special Termination
Drawing has been made, all funds on deposit in the Cash Collateral Account will
be returned to the Liquidity Provider being replaced.
(ii) If
the Liquidity Provider shall determine not to extend its Liquidity Facility in
accordance with Section 3.5(d), then the Liquidity Provider may, at its
option, arrange for a Replacement Liquidity Facility to replace the Liquidity
Facility during the period no earlier than 30 days and no later than 25 days
prior to the then effective Expiry Date of the Liquidity Facility. At
any time after a Non-Extension Drawing has been made under the
Liquidity
Facility,
the Liquidity Provider 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 the 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 the "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 under any of the Operative Agreements, the
Class A 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 the 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 (iii) 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 Liquidity Provider with
the applicable Replacement Liquidity Provider and (2) the replacement of the
Liquidity Facility with the applicable Replacement Liquidity Facility and (z)
the applicable Replacement Liquidity Provider shall be deemed to be the
Liquidity Provider with the rights and obligations of the Liquidity Provider
hereunder and under the other Operative Agreements and such Replacement
Liquidity Facility shall be deemed to be the 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 Liquidity Facility pursuant
to
Section
3.5(c), 3.5(d), 3.5(i) or 3.5(m) hereof, or in the event amounts are to be
deposited in the 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 Cash Collateral
Account. All amounts on deposit in the 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 the Cash Collateral Account
(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 the 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 Account as of such date. In addition, from and after the
date funds are so deposited, the Subordination Agent shall make withdrawals from
such account 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 Stated Interest Rate) after giving effect to the
subordination provisions of this Agreement, withdraw from the 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 Stated
Interest Rate) on the Class A Certificates and (y) the amount on deposit in the
Cash Collateral Account;
(ii) 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, the
Subordination Agent shall withdraw from the 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 Cash
Collateral Account resulting from a prior withdrawal of amounts on deposit in
the Cash Collateral Account on such date) and any transfer of Investment
Earnings from the 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 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 Cash Collateral Account and shall first, pay such withdrawn
amount to the Liquidity Provider until the Liquidity Obligations owing to the
Liquidity Provider shall have been paid in full, and second, deposit any
remaining withdrawn amount in the Collection Account;
(iii) if
a Replacement Liquidity Facility shall be delivered to the Subordination Agent
following the date on which funds have been deposited into the Cash Collateral
Account, the Subordination Agent shall withdraw all amounts on deposit in the
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
(iv) following
the payment of Final Distributions with respect to the Class A Certificates, on
the date on which the Subordination Agent shall have been notified by the
Liquidity Provider that the Liquidity Obligations owed to the Liquidity Provider
have been paid in full, the Subordination Agent shall withdraw all amounts on
deposit in the Cash Collateral Account and shall deposit such amount in the
Collection Account.
(g) Reinstatement. With
respect to any Interest Drawing under the Liquidity Facility, upon the
reimbursement of the Liquidity Provider for all or any part of the amount of
such Interest Drawing, together with any accrued interest thereon, the Available
Amount shall be reinstated by an amount equal to the amount of such Interest
Drawing so reimbursed to the Liquidity Provider but not to exceed the Stated
Amount; provided, however, that the
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 Liquidity Facility or
(y) a Final Drawing, a Non-Extension Drawing, a Downgrade Drawing or a Special
Termination Drawing shall have occurred with respect to the Liquidity Facility
or an Interest Drawing shall have been converted into a Final
Drawing. In the event that (i) funds are withdrawn from the Cash
Collateral Account pursuant to clause (i) or (ii) of Section 3.5(f) hereof or
(ii) the Liquidity Facility shall become a Downgraded Facility or a Non-Extended
Facility at a time when unreimbursed Interest Drawings under the 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
the Liquidity Facility and a Performing Note Deficiency exists or (y) any time
after a Final Drawing shall have occurred with respect to the Liquidity Facility
or an Interest Drawing shall have been converted into a Final Drawing, shall be
deposited in the 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 Facility shall be due and payable,
together with interest thereon, on the dates and at the rates, respectively,
provided in the Liquidity Facility.
(i) Final
Drawing. Upon receipt from the Liquidity Provider of a
Termination Notice with respect to the Liquidity Facility, the Subordination
Agent shall, not later than the date specified in such Termination Notice, in
accordance with the terms of the Liquidity Facility, request a drawing under the
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 is reduced as a result of a reduction in the Pool Balance with respect to
the
Class A
Certificates or otherwise, the Stated Amount shall automatically be adjusted to
an amount equal to the Required Amount (as calculated by the Subordination Agent
after giving effect to such payment).
(k) Relation to Subordination
Provisions. Interest Drawings under the Liquidity Facility and
withdrawals from the Cash Collateral Account, in each case, in respect of
interest on the Class A Certificates, will be distributed to the Class A
Trustee, notwithstanding Section 3.2 hereof.
(l) Assignment of Liquidity
Facility. The Subordination Agent agrees not to consent to the
assignment by the Liquidity Provider of any of its rights or obligations under
the 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).
(m) Special Termination
Drawing. Upon receipt of a Special Termination Notice with
respect to the Liquidity Facility, the Subordination Agent shall, not later than
the date specified in such Special Termination Notice, in accordance with the
terms of the Liquidity Facility, request a drawing under the Liquidity Facility
of all available and undrawn amounts thereunder (a "Special Termination
Drawing"). Amounts drawn pursuant to a Special Termination
Drawing shall be maintained and invested in accordance with Section 3.5(f)
hereof.
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 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 and (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). If Additional Certificates have been issued and are
outstanding and any Additional Certificateholder gives irrevocable notice of the
exercise of its right to purchase all (but not less than all) of the Class A
Certificates pursuant to the applicable Trust Agreement prior to the expiry of
the 15-day notice period specified above, the Controlling Party may not direct
the Subordination Agent or any Trustee to enter into any such restructuring
proposal with respect to any of the Aircraft unless and until such Additional
Certificateholders shall fail to purchase the Class A Certificates 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 Provider,
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, the 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, the 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 Provider 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 the 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 the 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, the 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
Provider 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, the Liquidity Provider or
one or more Certificateholders.
(b) Other
Notices. The Subordination Agent will furnish to the 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 the
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
Trustees, the Liquidity
Provider,
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(a)(2)(A) 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 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 the Liquidity
Facility;
(viii) the
amounts currently owed to the Liquidity Provider;
(ix) the
amounts drawn under the 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 this 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
Provider and Trustees. If
the Liquidity Provider or a Trustee has notice of an Indenture Default or a
Triggering Event, such Person shall promptly give notice thereof to each other
party hereto, 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. The
Class A Trustee hereby designates and appoints the Subordination Agent as its
agent and trustee under the Liquidity Facility and authorizes the Subordination
Agent to enter into the Liquidity Facility as its agent and
trustee. The Liquidity Provider and each Trustee hereby designate and
appoint 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. No 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
Provider 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 the 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 Provider 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 the Liquidity Provider 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 the Liquidity Provider 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 the 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.
SUCCESSOR
SUBORDINATION AGENT
SECTION 8.1. Replacement of Subordination
Agent; Appointment of Successor. The
Subordination Agent may resign at any time by so notifying each other party
hereto. 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 the
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 each other party
hereto. The retiring Subordination Agent shall promptly transfer its
rights under the Liquidity Facility 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 the Class A Trustee 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), the Class A Trustee or the Liquidity Provider 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,
Possible Future Issuance of an Additional Class of Certificates,
etc. (a) This
Agreement may not be supplemented, amended or modified without the consent of
the Class A 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 the Class A Certificates evidencing interests in the
Class A 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 the Liquidity Provider; provided, however, that this
Agreement may be supplemented, amended or modified without the consent of the
Class A Trustee if such supplement, amendment or modification (i) is in
accordance with Section 9.1(c) hereof or (ii) cures an ambiguity or
inconsistency or does not materially adversely affect the Class A Trustee or the
holders of the Class A 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), 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 the 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), 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 Class A Certificateholder and the
Liquidity Provider, no supplement, amendment or modification of this Agreement
may (i) reduce the percentage of the interest in the Class A 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) or
Section 9.1(c), 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 Facility. Nothing contained in this
Section shall require the consent of the Class A Trustee at any time following
the payment of Final Distributions with respect to the related Class A
Certificates. If the Replacement Liquidity Facility for the 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 such
Equipment Notes from the Class A Trustee 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 the Liquidity Provider, reduce the amount of principal or
interest payable by Continental under any Series A Equipment Note or change the
time of payments or method of calculation of any amount under any Equipment
Note.
(c) Pursuant
to the terms of Section 2.02 of each Indenture and Section 4(a)(vi) of the Note
Purchase Agreement, one additional series of Equipment Notes (the "Additional Equipment
Notes") may be issued from time to time after the Delivery Period Expiry
Date, provided
that no more than one series of Additional Equipment Notes shall be outstanding
at any time. The Additional Equipment Notes (to be designated "Series B Equipment
Notes") will be subordinated in right of payment to the Series A
Equipment Notes. 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"). On each Distribution Date, no distributions or
other cash payments may be made on or in respect of the Additional Certificates
unless and until the Expected Distributions with respect to the Class A
Certificates on such Distribution Date have been made in full; provided that, the
Additional Trustee shall be reimbursed on a pari passu basis with the
Class A Trustee for any amounts of the nature described in clause (i) of clause
"first" of Section 3.2 hereof but solely to the extent such amounts (x)
constitute ordinary administrative expenses (and for the avoidance of doubt,
"ordinary administrative expenses" shall not include any costs or expenses
(including any costs of counsel) incurred by the Additional Trustee related to
enforcement under any of the Operative Agreements) and (y) have been actually
incurred by the Additional Trustee under the Additional Trust
Agreement. If Additional Certificates are to be so issued, 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 and otherwise on the terms noted above. Such
issuance and the amendment of this Agreement as provided below shall require
Ratings Confirmation and shall not materially adversely affect the Class A
Trustee. 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) and the subordination provisions of this Agreement
shall be revised, as appropriate, to reflect the issuance of the Additional
Certificates (and the subordination thereof, as provided above);
(iii) the
Additional Certificates shall not have the benefit of any credit support similar
to the Liquidity Facility;
(iv) 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;
(v) 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 the Additional Certificates after payment of the
Administration Expenses, the Liquidity Obligations, the Class A Certificates and
otherwise on the terms of subordination noted above; and
(vi) the
scheduled payment dates on such series of Additional Equipment Notes shall be on
the Regular Distribution Dates subject always to the terms of subordination
noted above.
The
issuance of the Additional Certificates in compliance with all of the foregoing
terms of this Section 9.1(c) shall not require the consent of any of the Class A
Trustee or the holders of the Class A Certificates. The Liquidity
Provider hereby agrees and confirms that it shall be deemed to consent to any
issuance and amendment in accordance with this Section 9.1(c).
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 the 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 the Class A Certificates and the
payment in full of all Liquidity Obligations to the Liquidity Provider and provided that there
shall then be no other amounts due to the Class A Certificateholders, the Class
A Trustee, the Liquidity Provider and the Subordination Agent hereunder or under
the Class A Trust Agreement, and that the commitment of the Liquidity Provider
under the Liquidity Facility 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 Trustee, Liquidity Provider 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 Class A Trustee, the Liquidity
Provider 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:
GOLDMAN SACHS BANK USA
|
30
Hudson Street, 36th
Floor
|
|
Telephone: (212)
357-4350
|
Whenever
any notice in writing is required to be given by the Trustee, the 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 the Original Class A Trust
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
Class A Trust of the same Class and, thereafter, the trustee of the Successor
Class A Trust shall be deemed to be the "Trustee" of the Successor Class A Trust
with the rights and obligations of the "Trustee" hereunder and
under
the other
Operative Agreements and each reference to the Trust herein shall be deemed a
reference to the Successor Class A Trust.
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 Provider, on the one hand, and the Trustee (and any
Additional Trustee) and the Class A Certificateholders (and any Additional
Certificateholders), on the other hand, and as between the Trustee (and any
Additional Trustee) and the related Certificateholders (and any 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 Provider 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
the Trustee, the Liquidity Provider or the Subordination Agent receives any
payment in respect of any obligations owing hereunder (or, in the case of the
Liquidity Provider, 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 Provider, in respect
of the 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
Class A Trustee (on behalf of itself and the holders of the Class A
Certificates), the Liquidity Provider 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 Class A
Trustee and the holders of Class A Certificates are secured by certain assets
and the Liquidity Obligations may not be so secured. The Class A
Trustee expressly agrees (on behalf of itself and the holders of the Class A
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 Class A Trustee (on behalf of itself and the holders of the Class A
Certificates), the Liquidity Provider 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 Provider, 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 Provider,
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 Provider, 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 the Class A Trustee, the Liquidity Provider 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 exclusive 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; provided, that, in the case
Continental is a debtor in a proceeding under the Bankruptcy Code, each party
also submits for itself and its property to the court that has jurisdiction over
the bankruptcy proceedings;
(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) 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.
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 the Class A
Trust
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By
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Name:
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Title:
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GOLDMAN
SACHS BANK USA, as the Liquidity Provider
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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 trustee
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By
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Name:
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Title:
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Intercreditor
Agreement
e60709081ex4_6.htm
DEPOSIT
AGREEMENT
(Class
A)
Dated as
of July 1, 2009
between
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as Escrow
Agent
and
THE BANK
OF NEW YORK MELLON
as
Depositary
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DEPOSIT
AGREEMENT (Class A) dated as of July 1, 2009 (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 THE BANK OF NEW YORK MELLON, 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 July 1, 2009
(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 2009-1A-O
pursuant to which the Continental Airlines Pass Through Trust, Series 2009-1A-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, Goldman, Sachs & Co.
and Calyon Securities (USA) 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 June 16, 2009 pursuant to
which the Pass Through Trustee will issue and sell the Certificates to the
Underwriters;
WHEREAS,
Continental, the Pass Through Trustee 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 certain aircraft currently owned by Continental
and certain other aircraft to be acquired 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: The Bank of New York
Mellon, ABA No. 021000018, Account Name: Corporate Trust Agency, Account
Number: GLA / 111-565, For Further Credit: A/C No. 227572, Reference:
Continental 2009-1, and the Depositary shall accept from the Underwriters, on
behalf of the Escrow Agent, the sum of US$389,687,000. Upon
acceptance of such sum, the Depositary shall (i) establish each of the deposits
specified in Schedule I hereto maturing on January 29, 2010 (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 9.000% 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 January 8 and July
8, commencing on January 8, 2010 (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, which
notice has been actually received by the Depositary prior to such actual
withdrawal, 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 in this Agreement, “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 January 8, 2010 and there are unwithdrawn Deposits on
such date, the Depositary shall pay the amount of the Final Withdrawal to the
Paying Agent on January 29, 2010.
(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. Notwithstanding anything to the contrary contained in this
Agreement, in no event shall the Depositary be required, pursuant to any
Withdrawal Notice or otherwise, to make payments hereunder on or in respect of
any Deposit in excess of the amount of such Deposit together with accrued
interest thereon as provided in 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 January 29, 2010 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 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. 093733-000.1, Attention: Chad May,
Telephone No.: (302) 636-6291 (Rusty Morse), Reference: CAL 2009-1, 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. To the extent
permitted by applicable law, 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 if the Paying Agent shall have notified the Depositary
that 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, or cause to
be made, such deductions or withholding and (ii) pay, or cause to be paid, the
full amount deducted or withheld in accordance with applicable
law. 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 New York banking corporation duly organized and validly existing in good
standing under the laws of its jurisdiction of organization;
(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
(except, in the case of the immediately following clause (i), as set forth in
Part II, Item 1 – Legal Proceedings of the Form 10-Q of The Bank of New York
Mellon Corporation for the quarterly period ended March 31, 2009 filed with the
Securities and Exchange Commission) 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 other
than (in the case of the Depositary) to any corporation into which the
Depositary shall merge or with which it shall be consolidated, 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
2009-1A-O” shall be deemed to be a reference to “Continental Airlines Pass
Through Trust 2009-1A-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 2009-1A-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, The Bank of New York Mellon, 101
Barclay Street, Floor 8W, New York, New York 10286, Attention: Corporate
Finance, Mary Miselis, Vice President, Reference: Continental Airlines Pass
Through Trust 2009-1A-S, (Telecopier: (212) 815-5704) 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.
The Depositary shall have the right,
but shall not be required, to rely upon and comply with instructions and
directions sent by e-mail by persons believed by the Depositary to be authorized
to give instructions and directions on behalf of the Escrow
Agent. The Depositary shall have no duty or obligation to verify or
confirm that the person who sent such instructions or directions is, in fact, a
person authorized to give instructions or directions on behalf of
the
Escrow
Agent; and the Depositary shall have no liability for any losses, liabilities,
costs or expenses incurred or sustained by the Escrow Agent as a result of such
reliance upon or compliance with such instructions or directions. The
Escrow Agent agrees to assume all risks arising out of the use of e-mail to
submit instructions and directions to the Depositary, including without
limitation the risk of the Depositary acting on unauthorized instructions, and
the risk of interception and misuse by third parties.
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. Submission to Non-Exclusive
Jurisdiction in New York. Each of the parties hereto, to the
extent it may do so under applicable law, hereby (a) irrevocably submits itself
to the non-exclusive jurisdiction of the courts of the State of New York sitting
in the City of New York and to the non-exclusive jurisdiction of the United
States District Court for the Southern District of New York, for the purposes of
any suit, action or other proceeding arising out of this Agreement, the subject
matter hereof or any of the transactions contemplated hereby brought by any
party or parties hereto, or their successors or permitted assigns and (b)
waives, and agrees not to assert, by way of motion, as a defense, or otherwise,
in any such suit, action or proceeding, that the suit, action or proceeding is
brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper or that this Agreement or the subject matter hereof or
any of the transactions contemplated hereby may not be enforced in or by such
courts.
SECTION 13. 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 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
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 and that any such claim
shall not be subject to defenses that the Depositary may have against the Escrow
Agent.
SECTION 16. Limitation on
Damages. In no event shall the Depositary be responsible or
liable for special, indirect, punitive, or consequential loss or damage of any
kind whatsoever (including, but not limited to, loss of profit, whether or not
foreseeable) suffered by Escrow Agent or any of the Receiptholders (as defined
in the Escrow and Paying Agent Agreement) in connection with this Agreement or
the transaction contemplated or any relationships established by this Agreement
irrespective of whether the Depositary has been advised of the likelihood of
such loss or damage and regardless of the form of action.
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.
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WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as
Escrow Agent
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
|
Title:
|
|
|
THE
BANK OF NEW YORK MELLON,
as
Depositary
|
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By:
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Name:
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Title:
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Schedule
I
Schedule of
Deposits
Class
A
Aircraft Type
|
Deposit Amount
|
Account No.
|
Boeing
777-224ER
|
$41,734,000
|
227574
|
Boeing
777-224ER
|
$41,366,000
|
227576
|
Boeing
777-224ER
|
$43,478,000
|
227578
|
|
|
|
Boeing
757-224
|
$13,992,000
|
227580
|
Boeing
757-224
|
$13,262,000
|
227582
|
|
|
|
Boeing
737-924ER
|
$28,258,000
|
227584
|
Boeing
737-924ER
|
$28,258,000
|
227587
|
Boeing
737-924ER
|
$28,258,000
|
227589
|
Boeing
737-924ER
|
$28,258,000
|
227591
|
Boeing
737-924ER
|
$28,258,000
|
227593
|
|
|
|
Boeing
737-824
|
$14,834,000
|
227599
|
Boeing
737-824
|
$15,510,000
|
227603
|
Boeing
737-824
|
$15,510,000
|
227609
|
|
|
|
Boeing
737-724
|
$12,225,000
|
227612
|
Boeing
737-724
|
$11,913,000
|
227614
|
Boeing
737-724
|
$12,181,000
|
227616
|
Boeing
737-724
|
$12,392,000
|
227618
|
EXHIBIT
A
NOTICE OF
PURCHASE WITHDRAWAL
The Bank
of New York Mellon
101
Barclay Street, Floor 8W
New York,
New York 10286
Attention: Corporate
Finance, Mary Miselis, Vice President
Reference:
Continental Airlines 2009-1
Telecopier:
(212) 815-5704
Gentlemen:
Reference
is made to the Deposit Agreement (Class A) dated as of _________________, 2009
(the “Deposit
Agreement”) between Wells Fargo Bank Northwest, National Association, as
Escrow Agent, and The Bank of New York Mellon, 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 entire amount 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
|
|
|
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By:
|
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Name:
|
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Title:
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Dated:
_______ __, 200_
EXHIBIT
B
NOTICE OF
FINAL WITHDRAWAL
The Bank
of New York Mellon
101
Barclay Street, Floor 8W
New York,
New York 10286
Attention: Corporate
Finance, Mary Miselis, Vice President
Reference:
Continental Airlines 2009-1
Telecopier:
(212) 815-5704
Gentlemen:
Reference
is made to the Deposit Agreement (Class A) dated as of _______________, 2009
(the “Deposit
Agreement”) between Wells Fargo Bank Northwest, National Association, as
Escrow Agent, and The Bank of New York Mellon, 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 entire amount of the
Deposits and accrued interest thereon to the Paying Agent at Wilmington Trust
Company, ABA# 031100092, Account No. _____________, Reference: Continental
2009-1A.
|
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as
Escrow Agent
|
|
|
|
|
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By:
|
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|
Name:
|
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|
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Title:
|
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Dated:
_________, 200_
EXHIBIT
C
NOTICE OF
REPLACEMENT WITHDRAWAL
The Bank
of New York Mellon
101
Barclay Street, Floor 8W
New York,
New York 10286
Attention: Corporate
Finance, Mary Miselis, Vice President
Reference: Continental
Airlines 2009-1
Telecopier:
(212) 815-5704
Gentlemen:
Reference
is made to the Deposit Agreement (Class A) dated as of _____________, 2009 (the
“Deposit
Agreement”) between Wells Fargo Bank Northwest, National Association, as
Escrow Agent, and The Bank of New York Mellon, 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 entire amount of the
Deposits and accrued interest thereon to [_____________________], Reference:
Continental 2009-1A.
|
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as
Escrow Agent
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
|
Title:
|
|
Dated:
_________, 200_
e60709081ex4_7.htm
ESCROW
AND PAYING AGENT AGREEMENT
(Class
A)
Dated as
of July 1, 2009
among
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as Escrow
Agent
MORGAN
STANLEY & CO. INCORPORATED,
GOLDMAN,
SACHS & CO.
and
CALYON
SECURITIES (USA) 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 2009-1A-O
as Pass
Through Trustee
and
WILMINGTON
TRUST COMPANY
as Paying
Agent
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ESCROW
AND PAYING AGENT AGREEMENT (Class A) dated as of July 1, 2009 (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, GOLDMAN, SACHS & CO. and CALYON
SECURITIES (USA) 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 July 1,
2009 (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 2009-1A-O
(the “Pass Through
Trust”) pursuant to which the Continental Airlines Pass Through Trust,
Series 2009-1A-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 June 16, 2009 (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 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 certain aircraft currently owned by Continental
and certain other aircraft to be acquired 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 The Bank of New York Mellon, 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 1.01. 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 than 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) December 31, 2009 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 January 8, 2010, and there are unwithdrawn
Deposits on such date, the Final Withdrawal Date shall be deemed to be January
29, 2010.
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 $389,687,000 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 2.4 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 Standard & Poor’s Financial
Services LLC business, 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 2.01. 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 than 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 1.07 hereof or (in the case of the Paying
Agent) to a successor paying agent under Section 2.05 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 2009-1A-O” shall be
deemed to be
a
reference to “Continental Airlines Pass Through Trust 2009-1A-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 2009-1A-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.
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.
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WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as
Escrow Agent
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By
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Name:
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Title:
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MORGAN
STANLEY & CO. INCORPORATED,
as
an Underwriter
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By
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Name:
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Title:
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GOLDMAN,
SACHS & CO.,
as
an Underwriter
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By
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Name:
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Title:
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CALYON
SECURITIES (USA) INC.,
as
an Underwriter
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By
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Name:
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Title:
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Escrow and Paying Agent Agreement (Class A)
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WILMINGTON
TRUST COMPANY, not in its individual capacity, but solely as Pass Through
Trustee for and on behalf of Continental Airlines Pass Through Trust
2009-1A-O
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By
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Name:
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Title:
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WILMINGTON
TRUST COMPANY,
as
Paying Agent
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By
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Name:
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Title:
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Escrow and Paying Agent Agreement (Class A)
CONTINENTAL
AIRLINES 2009-1A 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 July 1, 2009 (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, Goldman, Sachs & Co. and Calyon
Securities (USA) 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: __________________,
2009
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WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as
Escrow Agent
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By
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Name:
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Title:
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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 July 1, 2009 (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_
e60709081ex4_8.htm
________________________________________________________________
NOTE
PURCHASE AGREEMENT
Dated as
of July 1, 2009
Among
CONTINENTAL
AIRLINES, INC.,
WILMINGTON
TRUST COMPANY,
as Pass
Through Trustee under the
Pass
Through Trust Agreement
WILMINGTON
TRUST COMPANY,
as
Subordination Agent
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as Escrow
Agent
and
WILMINGTON
TRUST COMPANY,
as Paying
Agent
________________________________________________________________
Page
Schedules
Annex
Exhibits
NOTE
PURCHASE AGREEMENT
This NOTE
PURCHASE AGREEMENT, dated as of July 1, 2009, 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 the Pass Through Trust Agreement (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
the Escrow and Paying Agent Agreement (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
the Escrow and Paying Agent Agreement.
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 (i) is currently the owner of the three Boeing 777-224
aircraft, two Boeing 757-224 aircraft, three Boeing 737-824 aircraft and four
Boeing 737-724 aircraft listed in Part A of Schedule I hereto (the "Owned Aircraft"),
each of which is subject to an existing security interest, and (ii) has obtained
commitments from the Manufacturer pursuant to the Aircraft Purchase Agreement
for the delivery of the seven Boeing 737-924ER aircraft listed in Part B of
Schedule I hereto (together with any aircraft substituted therefor in accordance
with the Aircraft Purchase Agreement prior to the delivery thereof, the "Eligible
Aircraft");
WHEREAS,
pursuant to this Agreement the Company wishes to finance (i) each Owned Aircraft
after the existing security interest on such Owned Aircraft has been discharged
and (ii) a portion of the purchase price of five aircraft included in the
Eligible Aircraft (such Eligible Aircraft financed hereunder, the "New Aircraft" and,
together with the Owned Aircraft, the “Aircraft”);
WHEREAS,
pursuant to the Basic Pass Through Trust Agreement and the Trust Supplement set
forth in Schedule II hereto, and concurrently with the execution and delivery of
this Agreement, a grantor trust (the "Pass Through Trust")
has 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 the financing of the Aircraft contemplated hereby;
WHEREAS,
the Company has entered into the Underwriting Agreement, dated as of June 16,
2009 (the "Underwriting
Agreement") with the Underwriters named therein (the "Underwriters"), which
provides that the Company will cause the Pass Through Trustee to issue and sell
the Certificates 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 the Deposit Agreement, dated as of
the Issuance Date, relating to the Pass Through Trust (the "Deposit Agreement")
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 Pass Through Trustee 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 Pass Through Trustee, Underwriters, Paying Agent and Escrow Agent have
entered into the Escrow and Paying Agent Agreement, dated as of the Issuance
Date, relating to the Pass Through Trust (the "Escrow and Paying Agent
Agreement"), 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 Escrow Agent and (b) the Escrow Agent, upon the
Depositary receiving such amount, agreed to deliver escrow receipts to be
affixed to each Certificate;
WHEREAS,
upon receipt of a Closing Notice with respect to an Aircraft, subject to the
terms and conditions of this Agreement, the Pass Through Trustee will enter into
the applicable Financing Agreements relating to such Aircraft;
WHEREAS,
upon the financing of each Aircraft, the Pass Through Trustee will fund its
purchase of Equipment Notes with the proceeds of one or more Deposits withdrawn
by the Escrow Agent under the Deposit Agreement (or, if financed on the Issuance
Date, with a portion of the proceeds from the offering of the Certificates);
and
WHEREAS,
concurrently with the execution and delivery of this Agreement, (i) Goldman
Sachs Bank USA (the "Liquidity Provider"),
has entered into a revolving credit agreement, for the benefit of the
Certificateholders of the Pass Through Trust, with the Subordination Agent, as
agent for the Pass Through Trustee on behalf of the Pass Through Trust (such
revolving credit agreement with the Liquidity Provider, the "Liquidity Facility")
and (ii) the Pass Through Trustee, 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
Aircraft. (a) The Company confirms that (i) it
currently owns the Owned Aircraft and (ii) 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 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 "Closing Notice") of
the scheduled closing date (the "Scheduled Closing
Date") (or, in the case of a substitute Closing Notice under Section 1(e)
or (f) hereof, one Business Day's prior notice) in respect of the financing of
each Aircraft under this Agreement, which notice shall:
(i)
specify the Scheduled Closing Date of such 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 the Pass Through Trustee 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 Closing Notice and to perform its obligations
thereunder;
(iii)
instruct the Pass Through Trustee to instruct the Escrow Agent to provide
a Notice of Purchase Withdrawal to the Depositary with respect to the Equipment
Notes to be issued to the Pass Through Trustee in connection with the financing
of such Aircraft (except in the case of any such financing on the Issuance
Date); and
(iv)
specify the aggregate principal amount of the Equipment Notes to be issued, and
purchased by the Pass Through Trustee, in connection with the financing of such
Aircraft scheduled on such Funding Date (which shall in all respects comply with
the Required Terms).
Notwithstanding
the foregoing, in the case of any Aircraft to be financed hereunder on the
Issuance Date, the Closing Notice therefor may be delivered to the parties
hereto on the Issuance Date.
(c) Upon
receipt of a Closing Notice, the Pass Through Trustee shall, and shall cause the
Subordination Agent to, enter into and perform their respective obligations
under the Participation Agreement specified in such Closing 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 Pass Through Trustee 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 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) of the Intercreditor Agreement. 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
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 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
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 Closing Notice, there shall be a delay in the delivery of the
Eligible Aircraft referred to therein, or if on the Scheduled Closing Date of
the Eligible Aircraft or Owned Aircraft referred to therein 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 Closing Notice specifying the date to which the
financing of such Eligible Aircraft (or of another Eligible Aircraft in lieu
thereof) or such Owned Aircraft shall have been re-scheduled (which shall be a
Business Day before the Cut-off Date on which the Escrow Agent shall be entitled
to withdraw one or more Deposits under the Deposit Agreement to enable the Pass
Through Trustee to fund its purchase of the Equipment Notes). Upon
receipt of any such notice of postponement, the Pass Through Trustee shall
comply with its obligations under Section 5.01 of the Trust Supplement and
thereafter the financing of such Eligible Aircraft or such Owned Aircraft, as
specified in such substitute Closing Notice, shall take place on the
re-scheduled Closing 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
Closing 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 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 from the Manufacturer 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
Part B of Schedule I hereto or (b) beyond December 31, 2009, the Company may
identify for delivery a substitute aircraft therefor meeting the following
conditions (a "Substitute
Aircraft"): (i) a Substitute Aircraft must be a Boeing
737-924ER aircraft 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 Trustee to
purchase Equipment Notes with respect to any 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 to the 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 Deposit
Agreement.
SECTION 2. Conditions
Precedent. The obligation of the Pass Through Trustee to enter
into, and to cause the
Subordination
Agent to enter into, any Participation Agreement as directed pursuant to a
Closing Notice and to perform its obligations thereunder is subject to
satisfaction of the following conditions:
(a) no
Triggering Event shall have occurred;
(b) the
Company shall have delivered a certificate to the 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;
and
(c) In
the case of the Participation Agreement relating to the Aircraft with
registration number N24729, N16732, N24736, N14240 or N33132, an "8C Check"
shall have been performed on such Aircraft after May 2009 under the Company's
maintenance program, and the Company shall have delivered a certificate to the
Pass Through Trustee confirming the foregoing with respect to such
Aircraft.
Anything
herein to the contrary notwithstanding, the obligation of the 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 the 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
the Liquidity Facility), 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 the Liquidity Facility); 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, the Deposit Agreement and the 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 the Pass Through Trust Agreement) to the
trustee of the Related Trust (as
defined
in the Pass Through Trust Agreement) in accordance with Section 7.01 of each of
the Trust Supplements;
(vi) the
Company shall not issue any Additional Series Equipment Notes pursuant to
any Indenture, unless it shall have obtained written confirmation from each
Rating Agency that the issuance of such Equipment Notes will not result in
(1) a reduction of the rating for the Certificates by such Rating Agency
below the then current rating for the Certificates or (2) a withdrawal or
suspension of the rating of the Certificates by such Rating
Agency. Any issuance of Additional Series Equipment Notes shall be
subject to the terms of Section 9.1(c) 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 the rating then in effect for the
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 the
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 Agreement; 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 the 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 Pass
Through Trustee, and the 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 Agreement) together with a Notice of Replacement
Withdrawal (as defined in the Escrow and Paying Agent Agreement).
Each of
the parties hereto agrees, at the Company’s request, to enter into any
amendments to this Agreement, the Escrow and Paying Agent Agreement 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 Agreement with the Replacement Deposit
Agreement.
Upon the
execution and delivery of the Replacement Deposit Agreement, 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 Agreement shall be deemed to be the Deposit
Agreement hereunder and under the other Operative Agreements, except that the
obligations of the replaced Depositary under the Deposit Agreement 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 Agreement.
(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 9.01 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 the
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 Agreement and the
denominator of which shall be the sum of (x) the then outstanding aggregate
principal amount of the Equipment Notes issued under all of the Indentures and
(y) the then outstanding aggregate amount of the Deposits under the Deposit
Agreement.
(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 the 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 the Liquidity Facility minus Investment
Earnings while such Non-Extension Advance shall be outstanding, (C) the amount
equal to interest on any Special Termination Advance (other than any Applied
Special Termination Advance) payable under Section 3.07 of the Liquidity
Facility minus Investment Earnings from such Special Termination Advance while
such Special Termination Advance shall be outstanding, and (D) any other amounts
owed to the Liquidity Provider by the Subordination Agent as borrower under the
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), (B) or (C)), (ii) all compensation and reimbursement of expenses,
disbursements and advances payable by the Company under the Pass Through Trust
Agreement, (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", "Applied Special
Termination Advance", "Downgrade Advance", "Investment Earnings", "Non-Extension
Advance" and "Special Termination Advance" shall have the meanings specified in
the 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, in whole or in
part, 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 the Pass Through Trust Agreement, the Escrow Agent and its successors as
Escrow Agent under the Escrow and Paying Agent Agreement, 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 Street
Dept.
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
|
Note Purchase
Agreement
AIRCRAFT
Part A -
OWNED AIRCRAFT
|
|
Manufacturer’s
Serial
Number
|
Boeing
777-224
|
N77006
|
29476
|
Boeing
777-224
|
N78009
|
29479
|
Boeing
777-224
|
N78013
|
29861
|
Boeing
757-224
|
N34131
|
28971
|
Boeing
757-224
|
N33132
|
29281
|
Boeing
737-824
|
N26232
|
28942
|
Boeing
737-824
|
N35236
|
28801
|
Boeing
737-824
|
N14240
|
28952
|
Boeing
737-724
|
N24729
|
28945
|
Boeing
737-724
|
N16732
|
28948
|
Boeing
737-724
|
N14735
|
28950
|
Boeing
737-724
|
N24736
|
28803
|
Part B -
ELIGIBLE AIRCRAFT AND SCHEDULED DELIVERY MONTHS
|
Expected
Registration
Number
|
Expected
Manufacturer’s
Serial
Number
|
|
Boeing
737-924ER
|
N37437
|
33532
|
July
2009
|
Boeing
737-924ER
|
N78438
|
33533
|
July
2009
|
Boeing
737-924ER
|
N57439
|
33534
|
August
2009
|
Boeing
737-924ER
|
N45440
|
33535
|
August
2009
|
Boeing
737-924ER
|
N53441
|
30131
|
August
2009
|
Boeing
737-924ER
|
N37434
|
33528
|
September
2009
|
Boeing
737-924ER
|
N53442
|
33536
|
September
2009
|
Note Purchase
Agreement
TRUST
SUPPLEMENT
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
2009-1A-O.
Note Purchase
Agreement
REQUIRED
TERMS
Equipment
Notes
Obligor: Continental
Maximum
Principal Amount:
The
initial principal amount and amortization schedule of the Equipment Notes issued
with respect to an Aircraft shall be as set forth in the following table for
that Aircraft (or, in the case of a Boeing 737-924ER Aircraft, the applicable
table for that model):
Boeing
777-224ER
|
|
N77006
|
|
|
N78009 |
|
|
N78013 |
|
|
|
Equipment
Note Ending Balance
|
|
|
Scheduled
Payment of Principal
|
|
|
Equipment
Note Ending Balance
|
|
|
Scheduled
Payment of Principal
|
|
|
Equipment
Note Ending Balance
|
|
|
Scheduled
Payment of Principal
|
|
At
Issuance
|
|
$ |
41,734,000.00 |
|
|
$ |
0.00 |
|
|
$ |
41,366,000.00 |
|
|
$ |
0.00 |
|
|
$ |
43,478,000.00 |
|
|
$ |
0.00 |
|
January
8, 2010
|
|
|
40,397,992.73 |
|
|
|
1,336,007.27 |
|
|
|
40,060,498.89 |
|
|
|
1,305,501.11 |
|
|
|
42,105,869.40 |
|
|
|
1,372,130.60 |
|
July
8,
2010
|
|
|
39,062,267.99 |
|
|
|
1,335,724.74 |
|
|
|
38,755,358.26 |
|
|
|
1,305,140.63 |
|
|
|
40,734,092.15 |
|
|
|
1,371,777.25 |
|
January
8, 2011
|
|
|
37,726,845.34 |
|
|
|
1,335,422.65 |
|
|
|
37,450,068.44 |
|
|
|
1,305,289.82 |
|
|
|
39,362,158.09 |
|
|
|
1,371,934.06 |
|
July
8,
2011
|
|
|
36,391,746.20 |
|
|
|
1,335,099.14 |
|
|
|
36,144,618.86 |
|
|
|
1,305,449.58 |
|
|
|
37,990,056.12 |
|
|
|
1,372,101.97 |
|
January
8, 2012
|
|
|
35,056,994.03 |
|
|
|
1,334,752.17 |
|
|
|
34,838,997.93 |
|
|
|
1,305,620.93 |
|
|
|
36,617,774.05 |
|
|
|
1,372,282.07 |
|
July
8,
2012
|
|
|
33,722,614.66 |
|
|
|
1,334,379.37 |
|
|
|
33,533,192.90 |
|
|
|
1,305,805.03 |
|
|
|
35,245,298.48 |
|
|
|
1,372,475.57 |
|
January
8, 2013
|
|
|
32,388,636.52 |
|
|
|
1,333,978.14 |
|
|
|
32,227,189.72 |
|
|
|
1,306,003.18 |
|
|
|
33,872,614.65 |
|
|
|
1,372,683.83 |
|
July
8,
2013
|
|
|
31,055,091.01 |
|
|
|
1,333,545.51 |
|
|
|
30,920,972.89 |
|
|
|
1,306,216.83 |
|
|
|
32,499,706.25 |
|
|
|
1,372,908.40 |
|
January
8, 2014
|
|
|
29,718,160.47 |
|
|
|
1,336,930.54 |
|
|
|
29,610,686.74 |
|
|
|
1,310,286.15 |
|
|
|
31,122,520.76 |
|
|
|
1,377,185.49 |
|
July
8,
2014
|
|
|
28,108,845.80 |
|
|
|
1,609,314.67 |
|
|
|
28,292,454.81 |
|
|
|
1,318,231.93 |
|
|
|
29,736,983.82 |
|
|
|
1,385,536.94 |
|
January
8, 2015
|
|
|
26,479,128.59 |
|
|
|
1,629,717.21 |
|
|
|
26,690,098.72 |
|
|
|
1,602,356.09 |
|
|
|
28,052,816.17 |
|
|
|
1,684,167.65 |
|
July
8,
2015
|
|
|
24,848,255.47 |
|
|
|
1,630,873.12 |
|
|
|
25,084,808.93 |
|
|
|
1,605,289.79 |
|
|
|
26,365,565.04 |
|
|
|
1,687,251.13 |
|
January
8, 2016
|
|
|
23,218,708.69 |
|
|
|
1,629,546.78 |
|
|
|
23,478,864.14 |
|
|
|
1,605,944.79 |
|
|
|
24,677,625.45 |
|
|
|
1,687,939.59 |
|
July
8,
2016
|
|
|
0.00 |
|
|
|
23,218,708.69 |
|
|
|
0.00 |
|
|
|
23,478,864.14 |
|
|
|
0.00 |
|
|
|
24,677,625.45 |
|
Boeing
757-224
|
|
N34131 |
|
|
N33132 |
|
|
|
Equipment
Note Ending Balance
|
|
|
Scheduled
Payment of Principal
|
|
|
Equipment
Note Ending Balance
|
|
|
Scheduled
Payment of Principal
|
|
At
Issuance
|
|
$ |
13,992,000.00 |
|
|
$ |
0.00 |
|
|
$ |
13,262,000.00 |
|
|
$ |
0.00 |
|
January
8,
2010
|
|
|
13,537,293.27 |
|
|
|
454,706.73 |
|
|
|
12,831,339.04 |
|
|
|
430,660.96 |
|
July
8,
2010
|
|
|
13,082,829.54 |
|
|
|
454,463.73 |
|
|
|
12,400,575.06 |
|
|
|
430,763.98 |
|
January
8,
2011
|
|
|
12,628,625.62 |
|
|
|
454,203.92 |
|
|
|
11,970,057.35 |
|
|
|
430,517.71 |
|
July
8,
2011
|
|
|
12,174,699.93 |
|
|
|
453,925.69 |
|
|
|
11,539,803.37 |
|
|
|
430,253.98 |
|
January
8,
2012
|
|
|
11,721,072.68 |
|
|
|
453,627.25 |
|
|
|
11,109,832.25 |
|
|
|
429,971.12 |
|
July
8,
2012
|
|
|
11,267,766.05 |
|
|
|
453,306.63 |
|
|
|
10,680,165.05 |
|
|
|
429,667.20 |
|
January
8,
2013
|
|
|
10,814,804.51 |
|
|
|
452,961.54 |
|
|
|
10,250,824.93 |
|
|
|
429,340.12 |
|
July
8,
2013
|
|
|
10,362,215.06 |
|
|
|
452,589.45 |
|
|
|
9,821,837.49 |
|
|
|
428,987.44 |
|
January
8,
2014
|
|
|
9,816,138.04 |
|
|
|
546,077.02 |
|
|
|
9,304,237.76 |
|
|
|
517,599.73 |
|
July
8,
2014
|
|
|
9,271,347.80 |
|
|
|
544,790.24 |
|
|
|
8,787,857.70 |
|
|
|
516,380.06 |
|
January
8,
2015
|
|
|
8,720,374.70 |
|
|
|
550,973.10 |
|
|
|
8,265,617.21 |
|
|
|
522,240.49 |
|
July
8,
2015
|
|
|
8,169,645.93 |
|
|
|
550,728.77 |
|
|
|
7,743,608.32 |
|
|
|
522,008.89 |
|
January
8,
2016
|
|
|
7,620,057.91 |
|
|
|
549,588.02 |
|
|
|
7,222,680.68 |
|
|
|
520,927.64 |
|
July
8,
2016
|
|
|
0.00 |
|
|
|
7,620,057.91 |
|
|
|
0.00 |
|
|
|
7,222,680.68 |
|
Boeing
737-924ER
|
|
N37437
/ N78438 / N57439
N45440
/ N53441/ N37434 / N53442
|
|
|
|
Equipment
Note Ending Balance
|
|
|
Scheduled
Payment of Principal
|
|
At
Issuance
|
|
$ |
28,258,000.00 |
|
|
$ |
0.00 |
|
January
8,
2010
|
|
|
28,258,000.00 |
|
|
|
0.00 |
|
July
8,
2010
|
|
|
28,258,000.00 |
|
|
|
0.00 |
|
January
8,
2011
|
|
|
28,258,000.00 |
|
|
|
0.00 |
|
July
8,
2011
|
|
|
27,704,698.56 |
|
|
|
553,301.44 |
|
January
8,
2012
|
|
|
27,150,947.11 |
|
|
|
553,751.45 |
|
July
8,
2012
|
|
|
26,597,195.67 |
|
|
|
553,751.44 |
|
January
8,
2013
|
|
|
26,043,444.22 |
|
|
|
553,751.45 |
|
July
8,
2013
|
|
|
25,489,692.78 |
|
|
|
553,751.44 |
|
January
8,
2014
|
|
|
24,935,941.33 |
|
|
|
553,751.45 |
|
July
8,
2014
|
|
|
24,382,189.89 |
|
|
|
553,751.44 |
|
January
8,
2015
|
|
|
23,828,438.44 |
|
|
|
553,751.45 |
|
July
8,
2015
|
|
|
23,274,687.00 |
|
|
|
553,751.44 |
|
January
8,
2016
|
|
|
22,720,935.56 |
|
|
|
553,751.44 |
|
July
8,
2016
|
|
|
0.00 |
|
|
|
22,720,935.56 |
|
Boeing
737-824
|
|
N26232 |
|
|
N35236 |
|
|
N14240 |
|
|
|
Equipment
Note Ending Balance
|
|
|
Scheduled
Payment of Principal
|
|
|
Equipment
Note Ending Balance
|
|
|
Scheduled
Payment of Principal
|
|
|
Equipment
Note Ending Balance
|
|
|
Scheduled
Payment of Principal
|
|
At
Issuance
|
|
$ |
14,834,000.00 |
|
|
$ |
0.00 |
|
|
$ |
15,510,000.00 |
|
|
$ |
0.00 |
|
|
$ |
15,510,000.00 |
|
|
$ |
0.00 |
|
January
8,
2010
|
|
|
14,365,531.91 |
|
|
|
468,468.09 |
|
|
|
15,020,689.65 |
|
|
|
489,310.35 |
|
|
|
15,027,590.08 |
|
|
|
482,409.92 |
|
July
8,
2010
|
|
|
13,897,513.79 |
|
|
|
468,018.12 |
|
|
|
14,531,326.99 |
|
|
|
489,362.66 |
|
|
|
14,544,977.13 |
|
|
|
482,612.95 |
|
January
8,
2011
|
|
|
13,429,442.17 |
|
|
|
468,071.62 |
|
|
|
14,041,908.39 |
|
|
|
489,418.60 |
|
|
|
14,062,147.09 |
|
|
|
482,830.04 |
|
July
8,
2011
|
|
|
12,961,313.26 |
|
|
|
468,128.91 |
|
|
|
13,552,429.89 |
|
|
|
489,478.50 |
|
|
|
13,579,084.58 |
|
|
|
483,062.51 |
|
January
8,
2012
|
|
|
12,493,122.91 |
|
|
|
468,190.35 |
|
|
|
13,062,887.14 |
|
|
|
489,542.75 |
|
|
|
13,095,772.73 |
|
|
|
483,311.85 |
|
July
8,
2012
|
|
|
12,024,866.54 |
|
|
|
468,256.37 |
|
|
|
12,573,275.36 |
|
|
|
489,611.78 |
|
|
|
12,612,192.98 |
|
|
|
483,579.75 |
|
January
8,
2013
|
|
|
11,556,539.11 |
|
|
|
468,327.43 |
|
|
|
12,083,589.29 |
|
|
|
489,686.07 |
|
|
|
12,128,324.91 |
|
|
|
483,868.07 |
|
July
8,
2013
|
|
|
11,088,135.08 |
|
|
|
468,404.03 |
|
|
|
11,593,823.11 |
|
|
|
489,766.18 |
|
|
|
11,644,145.94 |
|
|
|
484,178.97 |
|
January
8,
2014
|
|
|
10,618,271.79 |
|
|
|
469,863.29 |
|
|
|
11,102,531.13 |
|
|
|
491,291.98 |
|
|
|
11,158,184.64 |
|
|
|
485,961.30 |
|
July
8,
2014
|
|
|
10,145,559.19 |
|
|
|
472,712.60 |
|
|
|
10,608,259.88 |
|
|
|
494,271.25 |
|
|
|
10,668,955.58 |
|
|
|
489,229.06 |
|
January
8,
2015
|
|
|
9,570,960.81 |
|
|
|
574,598.38 |
|
|
|
10,007,456.24 |
|
|
|
600,803.64 |
|
|
|
10,167,226.95 |
|
|
|
501,728.63 |
|
July
8,
2015
|
|
|
8,995,310.42 |
|
|
|
575,650.39 |
|
|
|
9,405,552.61 |
|
|
|
601,903.63 |
|
|
|
9,569,340.51 |
|
|
|
597,886.44 |
|
January
8,
2016
|
|
|
8,419,425.15 |
|
|
|
575,885.27 |
|
|
|
8,803,403.39 |
|
|
|
602,149.22 |
|
|
|
8,970,500.95 |
|
|
|
598,839.56 |
|
July
8,
2016
|
|
|
0.00 |
|
|
|
8,419,425.15 |
|
|
|
0.00 |
|
|
|
8,803,403.39 |
|
|
|
0.00 |
|
|
|
8,970,500.95 |
|
Boeing
737-724
|
|
N24729
|
|
|
N16732 |
|
|
|
Equipment
Note Ending Balance
|
|
|
Scheduled
Payment of Principal
|
|
|
Equipment
Note Ending Balance
|
|
|
Scheduled
Payment of Principal
|
|
At
Issuance
|
|
$ |
12,225,000.00 |
|
|
$ |
0.00 |
|
|
$ |
11,913,000.00 |
|
|
$ |
0.00 |
|
January
8,
2010
|
|
|
11,839,002.20 |
|
|
|
385,997.80 |
|
|
|
11,537,168.01 |
|
|
|
375,831.99 |
|
July
8,
2010
|
|
|
11,453,296.50 |
|
|
|
385,705.70 |
|
|
|
11,161,295.84 |
|
|
|
375,872.17 |
|
January
8,
2011
|
|
|
11,067,546.70 |
|
|
|
385,749.80 |
|
|
|
10,785,380.70 |
|
|
|
375,915.14 |
|
July
8,
2011
|
|
|
10,681,749.70 |
|
|
|
385,797.00 |
|
|
|
10,409,419.55 |
|
|
|
375,961.15 |
|
January
8,
2012
|
|
|
10,295,902.06 |
|
|
|
385,847.64 |
|
|
|
10,033,409.05 |
|
|
|
376,010.50 |
|
July
8,
2012
|
|
|
9,910,000.01 |
|
|
|
385,902.05 |
|
|
|
9,657,345.54 |
|
|
|
376,063.51 |
|
January
8,
2013
|
|
|
9,524,039.41 |
|
|
|
385,960.60 |
|
|
|
9,281,224.96 |
|
|
|
376,120.58 |
|
July
8,
2013
|
|
|
9,138,015.66 |
|
|
|
386,023.75 |
|
|
|
8,905,042.85 |
|
|
|
376,182.11 |
|
January
8,
2014
|
|
|
8,750,789.31 |
|
|
|
387,226.35 |
|
|
|
8,527,688.80 |
|
|
|
377,354.05 |
|
July
8,
2014
|
|
|
8,361,214.76 |
|
|
|
389,574.55 |
|
|
|
8,148,046.42 |
|
|
|
379,642.38 |
|
January
8,
2015
|
|
|
7,887,673.55 |
|
|
|
473,541.21 |
|
|
|
7,686,578.09 |
|
|
|
461,468.33 |
|
July
8,
2015
|
|
|
7,413,265.35 |
|
|
|
474,408.20 |
|
|
|
7,224,264.88 |
|
|
|
462,313.21 |
|
January
8,
2016
|
|
|
6,938,663.57 |
|
|
|
474,601.78 |
|
|
|
6,761,763.03 |
|
|
|
462,501.85 |
|
July
8,
2016
|
|
|
0.00 |
|
|
|
6,938,663.57 |
|
|
|
0.00 |
|
|
|
6,761,763.03 |
|
|
|
N14735 |
|
|
N24736 |
|
|
|
Equipment
Note Ending Balance
|
|
|
Scheduled
Payment of Principal
|
|
|
Equipment
Note Ending Balance
|
|
|
Scheduled
Payment of Principal
|
|
At
Issuance
|
|
$ |
12,181,000.00 |
|
|
$ |
0.00 |
|
|
$ |
12,392,000.00 |
|
|
$ |
0.00 |
|
January
8,
2010
|
|
|
11,796,390.31 |
|
|
|
384,609.69 |
|
|
|
12,000,572.27 |
|
|
|
391,427.73 |
|
July
8,
2010
|
|
|
11,412,072.87 |
|
|
|
384,317.44 |
|
|
|
11,609,602.73 |
|
|
|
390,969.54 |
|
January
8,
2011
|
|
|
11,027,711.51 |
|
|
|
384,361.36 |
|
|
|
11,218,588.51 |
|
|
|
391,014.22 |
|
July
8,
2011
|
|
|
10,643,303.09 |
|
|
|
384,408.42 |
|
|
|
10,827,526.43 |
|
|
|
391,062.08 |
|
January
8,
2012
|
|
|
10,258,844.22 |
|
|
|
384,458.87 |
|
|
|
10,436,413.02 |
|
|
|
391,113.41 |
|
July
8,
2012
|
|
|
9,874,331.15 |
|
|
|
384,513.07 |
|
|
|
10,045,244.46 |
|
|
|
391,168.56 |
|
January
8,
2013
|
|
|
9,489,759.72 |
|
|
|
384,571.43 |
|
|
|
9,654,016.55 |
|
|
|
391,227.91 |
|
July
8,
2013
|
|
|
9,105,125.38 |
|
|
|
384,634.34 |
|
|
|
9,262,724.63 |
|
|
|
391,291.92 |
|
January
8,
2014
|
|
|
8,719,292.77 |
|
|
|
385,832.61 |
|
|
|
8,870,213.70 |
|
|
|
392,510.93 |
|
July
8,
2014
|
|
|
8,331,120.41 |
|
|
|
388,172.36 |
|
|
|
8,475,322.52 |
|
|
|
394,891.18 |
|
January
8,
2015
|
|
|
7,859,283.60 |
|
|
|
471,836.81 |
|
|
|
7,995,318.76 |
|
|
|
480,003.76 |
|
July
8,
2015
|
|
|
7,386,582.93 |
|
|
|
472,700.67 |
|
|
|
7,514,436.18 |
|
|
|
480,882.58 |
|
January
8,
2016
|
|
|
6,913,689.38 |
|
|
|
472,893.55 |
|
|
|
7,033,357.39 |
|
|
|
481,078.79 |
|
July
8,
2016
|
|
|
0.00 |
|
|
|
6,913,689.38 |
|
|
|
0.00 |
|
|
|
7,033,357.39 |
|
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
the Equipment Notes (computed on the basis of a 360-day year consisting of
twelve 30-day months, payable semi-annually in
arrears): 9.00%
Payment
Due Rate:
|
Debt
Rate plus 2% per annum
|
Payment
Dates:
|
January
8 and July 8
|
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 Provider, Pass Through Trustee, Escrow Agent 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 Related Note Holder of a Related Series
A Equipment Note, the Subordination Agent, the Liquidity Provider or the
Mortgagee the provisions of Article II or III or Section 4.05(c), 5.01,
5.02, 6.02, 10.01(a), 10.01(b)(vii), 11.01, 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 Provider or the
Mortgagee the provisions of Section 4.1.3, 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 Provider 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 Related Note Holder of a Related Series A Equipment Note, the
Subordination Agent, the Liquidity Provider, the Mortgagee or the
Certificateholders.
Note Purchase
Agreement
DEFINITIONS
"Act" means 49 U.S.C.
§§ 40101-46507.
"Additional Series Equipment
Notes" means Equipment Notes of a single series issued under an Indenture
and designated other than as "Series A" 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).
"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 fourth recital to the Note Purchase
Agreement.
"Certificateholder"
means the Person in whose name a Certificate is registered in the
Register.
"Closing Notice" has
the meaning set forth in Section 1(b) of 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) December 31, 2009 and
(b) the date on which Equipment Notes issued with respect to all of the
Aircraft (including any Substitute Aircraft in lieu of the New Aircraft) have
been purchased by the Pass Through Trustee 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.
"Deposits" has the
meaning set forth in the sixth recital to the Note Purchase
Agreement.
"Deposit Agreement"
has the meaning set forth in the sixth recital to the Note Purchase
Agreement.
"Depositary" means The
Bank of New York Mellon, a New York banking corporation.
"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
Agreement" has the meaning set forth in the sixth 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 sixth recital to the Note Purchase
Agreement.
"Intercreditor
Agreement" has the meaning set forth in the ninth 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 ninth recital to the Note Purchase
Agreement.
"Liquidity Provider"
has the meaning set forth in the ninth 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 third 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 the Deposit Agreement, has the meaning set
forth in Section 2.3 thereof.
"Operative Agreements"
means, collectively, the Pass Through Trust Agreement, the Escrow and Paying
Agent Agreement, the Deposit Agreement, the Liquidity Facility, the
Intercreditor Agreement, the Equipment Notes, the Certificates and the Financing
Agreements.
"Owned Aircraft" has
the meaning set forth in the second recital to the Note Purchase
Agreement.
"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 fourth recital to the Note Purchase
Agreement.
"Pass Through Trust
Agreement" means the Trust Supplement referred to in the fourth recital
to the Note Purchase Agreement, together with the Basic Pass Through Trust
Agreement, 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 Standard
& Poor's Financial Services LLC business.
"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 the Certificates by such Rating Agency below the then current rating
for the Certificates or (ii) a withdrawal or suspension of the rating of
the Certificates by such Rating Agency.
"Register" means the
register maintained pursuant to Sections 3.04 and 7.12 of the Basic Pass Through
Trust Agreement with respect to the Pass Through Trust.
"Replacement Deposit
Agreement" means a deposit agreement substantially in the form of the
replaced Deposit Agreement as shall permit the Rating Agencies to confirm in
writing their respective ratings then in effect for the 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 Closing
Date" has the meaning set forth in Section 1(b) of the Note Purchase
Agreement.
"Series A Equipment
Notes" means the "Series A Equipment Notes" as defined in each Indenture
entered into pursuant to 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.
"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 fifth recital to the Note Purchase
Agreement.
"Underwriting
Agreement" has the meaning set forth in the fifth recital to the Note
Purchase Agreement.
"WTC" has the meaning
set forth in the first paragraph of the Note Purchase
Agreement.
Note Purchase
Agreement
FORM OF
CLOSING NOTICE
CLOSING
NOTICE
Dated as
of [_________], 2009
To each
of the addressees listed
in Schedule A hereto
|
Re:
|
Closing
Notice in accordance with Note Purchase Agreement referred to
below
|
Ladies
and Gentlemen:
Reference
is made to the Note Purchase Agreement, dated as of July 1, 2009, among
Continental Airlines, Inc. (the “Company”), Wilmington
Trust Company, as Pass Through Trustee under the Pass Through Trust Agreement
(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 Closing Date of the Aircraft is [_________],
2009;
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(2)
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The
Funding Date for the Aircraft shall be [__________], 2009;
and
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(3)
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The
aggregate amount of the Equipment Notes to be issued, and purchased by the
Pass Through Trustee, on the Funding Date, in connection with the
financing of such Aircraft is
$[__________].
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The
Company hereby instructs the Pass Through Trustee to (i) execute a Withdrawal
Certificate in the form of Annex A hereto dated as of [______], 2009 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 Escrow Agent.
The
Company hereby instructs the Pass Through Trustee to (i) purchase Equipment
Notes in an amount set forth 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 the Pass Through Trustee to (a) enter into the
Participation Agreement [____] dated as of [______], 2009 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 the Pass Through Trustee as required
thereby.
Yours
faithfully,
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Continental
Airlines, Inc.
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By:
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Name:
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|
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Title:
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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
The Bank
of New York Mellon,
as
Depositary
101
Barclay Street, Floor 8W
New York,
New York 10286
Attention:
Corporate Finance, Mary Miselis, Vice President
Reference:
Continental Airlines 2009-1
Facsimile: (212)
815-5704
Standard
& Poor’s Ratings Services
55 Water
Street, 39th Floor
New York,
New York 10041-0003
Attention: Philip
A. Baggaley, CFA
Facsimile: (212)
438-7820
Moody’s
Investors Service, Inc.
7 World
Trade Center at 250 Greenwich Street
New York,
New York 10007
Attention: Michael
Mulvaney
Facsimile: 212-553-4661
Annex
A
WITHDRAWAL
CERTIFICATE
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 July 1, 2009 (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 (212)
815-5704 (Attention: Corporate Finance, Mary Miselis, Vice
President).
Capitalized
terms used herein but not defined herein shall have the meanings set forth in
the Agreement.
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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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|
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By:
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|
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Name:
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|
Title:
|
|
Dated: As
of [__________ __], 2009
Exhibit
A
NOTICE OF
PURCHASE WITHDRAWAL
The Bank
of New York Mellon,
as
Depositary
101
Barclay Street, Floor 8W
New York,
New York 10286
Attention:
Corporate Finance, Mary Miselis, Vice President
Reference:
Continental Airlines 2009-1
Telecopier: (212)
815-5704
Ladies
and Gentlemen:
Reference
is made to the Deposit Agreement dated as of July 1, 2009 (the “Deposit Agreement”)
between Wells Fargo Bank Northwest, National Association, as Escrow Agent, and
The Bank of New York Mellon, 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 entire amount of the
Deposit to [___________________], Account No. [____], Reference: [_________] on
[________ __], 2009, upon the telephonic request of a representative of the Pass
Through Trustee.
|
WELLS
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as
Escrow Agent
|
|
|
|
|
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By
|
|
|
|
Name:
|
|
|
|
Title:
|
|
Dated: As
of [__________ __], 2009
Note Purchase
Agreement
FORM OF
PARTICIPATION AGREEMENT
[FILED AS EXHIBIT
4.9]
Note Purchase
Agreement
FORM OF
INDENTURE
e60709081ex4_9.htm
Note Purchase
Agreement
FORM OF
PARTICIPATION AGREEMENT
CONFIDENTIAL: Subject
to Restrictions on Dissemination
Set
Forth in Section 7 of this
Agreement
|
______________________________________________________________
PARTICIPATION
AGREEMENT [___]
Dated as
of [_____________], 2009
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 the
Pass Through Trust Agreement
____________________________
One
Boeing Model [_________] Aircraft
Bearing
Manufacturer’s Serial No.[______]
and U.S.
Registration No. N[_______]
______________________________________________________________
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2
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2
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2
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3
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3
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3
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3
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8
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8
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9
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9
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9
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14
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17
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17
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19
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21
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22
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26
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26
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26
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33
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33
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44
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44
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44
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45
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45
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45
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45
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|
46
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46
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46
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46
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46
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47
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|
47
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|
47
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47
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|
48
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|
48
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|
49
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|
49
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|
50
|
|
50
|
SCHEDULES
AND EXHIBITS
|
|
|
|
|
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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 Pass Through Trustee
|
EXHIBIT
D - Opinion of special counsel in Oklahoma City,
Oklahoma
|
PARTICIPATION
AGREEMENT [___]
PARTICIPATION
AGREEMENT [____], dated as of [____________], 2009 (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 the Pass Through Trust Agreement 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. [The
Aircraft is currently owned by Owner.]1 [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.]2
B. Pursuant
to the Pass Through Trust Agreement, the Pass Through Trust was created and the
Pass Through Certificates were issued and sold.
C. The
Pass Through Trustee has agreed to use a portion of the proceeds from the
issuance and sale of the Pass Through Certificates to purchase from Owner, on
behalf of the Pass Through Trust, the Equipment Notes.
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.
1.
|
Insert
for Owned Aircraft.
|
2.
|
Insert
for New Aircraft.
|
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:
|
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.
|
|
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)
|
The
Pass Through Trustee shall make a secured loan to the Owner in the amount
in Dollars listed on Schedule 2;
and
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|
(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 the Pass Through Trustee, one or more
Equipment Notes, dated the Closing Date, in an aggregate principal amount
equal to the amount of the secured loan made by the Pass Through
Trustee.
|
In
addition, the Owner shall have the option after the Closing Date to issue from
time to time Additional Series Equipment Notes, subject to the terms of the Note
Purchase Agreement and the Intercreditor Agreement. If Additional
Series Equipment Notes are so 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.
(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.
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|
Conditions
Precedent to the Obligations of the Pass Through
Trustee
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The
obligation of the Pass Through Trustee 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:
The Owner
shall have tendered the Equipment Notes to be issued to the Pass Through Trustee
to the Mortgagee for authentication and the Mortgagee shall have authenticated
such Equipment Notes to be issued to the Pass Through Trustee and shall have
tendered the Equipment Notes to the Subordination Agent on behalf of the Pass
Through Trustee, against receipt of the loan proceeds, in accordance with
Section 2.1.
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4.1.2
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Delivery
of Documents
|
The
Subordination Agent on behalf of the 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;]3 [the Release;]4
(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 Pass Through Trustee, 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
3.
|
Insert
for New Aircraft.
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4.
|
Insert
for Owned Aircraft.
|
(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.]5
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4.1.3
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Perfected
Security Interest
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On the
Closing Date, after giving effect to the filing of the FAA Filed Documents and
the Financing Statements[, the discharge of any International Interest relating
to the Existing Financing]6 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.
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, 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) 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.
5.
|
Insert
for New Aircraft.
|
6.
|
Insert
for Aircraft N77006 and
N34131.
|
|
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.
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.
Owner
shall have good title [(subject to filing and recordation of the FAA Bill of
Sale with the FAA)]7 to the Aircraft, free and clear of all Liens,
except Permitted Liens [and subject to filing and recordation of the Release
with the FAA]8.
The
Aircraft shall have been duly certificated by the FAA as to type and
airworthiness in accordance with the terms of the Purchase
Agreement.
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.
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
7.
|
Insert
for New Aircraft.
|
8.
|
Insert
for Owned Aircraft.
|
Owner
and]9 the International Interest (or Prospective
International Interest) of the Mortgagee in the Airframe and Engines 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 with a priority over the International Interest of the Mortgagee
therein[, except the International Interest relating to the Existing Financing,
which is being discharged on the Closing Date],10 (c) each Financing Statement shall have
been duly filed (or shall be in the process of being so duly filed) in the
appropriate jurisdiction and (d) the Subordination Agent, on behalf of the Pass
Through Trustee, shall have received a printout of the “priority search
certificate” from the International Registry relating to the Airframe and each
Engine showing no International Interest with a priority over the International
Interest of the Mortgagee therein[, except the International Interest relating
to the Existing Financing, which is being discharged on the Closing Date].11
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.
9.
|
Insert
for New Aircraft.
|
10.
|
Insert
for Aircraft N77006 and
N34131.
|
11.
|
Insert
for Aircraft N77006 and
N34131.
|
|
4.1.14
|
Note
Purchase Agreement
|
The
conditions precedent to the obligations of the Pass Through Trustee and the
other requirements relating to the Aircraft and the Equipment Notes set forth in
the Note Purchase Agreement shall have been satisfied.
|
|
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.
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.
|
|
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.
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, 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.
|
|
Post-Registration
Opinion
|
Promptly
upon [the registration of the Aircraft and]12 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, Pass Through Trustee and
Mortgagee a favorable opinion or opinions addressed to each of them with respect
to such [registration and]13 recordation.
|
REPRESENTATIONS
AND WARRANTIES
|
|
|
Owner’s
Representations and Warranties
|
Owner
represents and warrants to Pass Through Trustee, Subordination Agent and
Mortgagee that:
12.
|
Insert
for New Aircraft.
|
13.
|
Insert
for New Aircraft.
|
|
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.
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.
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 (x) the
filings, registrations and recordations referred to in Section 5.1.6 and
(y) 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 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 with the International Registry,]14 [(a) the filing with the FAA of the AC
Forms 8050-135 with respect to the International Interests (or Prospective
International Interests) granted under the Trust Indenture on the Airframe and
Engines [and the discharge of any International Interest thereon relating to the
Existing Financing],15 (b) the filing with the FAA for
recordation (and recordation) of the FAA Filed
14.
|
Insert
for New Aircraft.
|
15.
|
Insert
for Aircraft N77006 and
N34131.
|
Documents,
(c) the registration with the International Registry of the International
Interest (or Prospective International Interest) in the Airframe and Engines
[and of the discharge of any International Interests thereon relating to the
Existing Financing],16]17 (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.
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”.
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.
16.
|
Insert
for Aircraft N77006 and
N34131.
|
17.
|
Insert
for Owned Aircraft.
|
(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.
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.
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.
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.
The Owner
is a Transacting User Entity (as defined in the regulations of the International
Registry); 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 constitute a “contract of sale” (as defined in the Cape
Town Treaty), and the]18 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
18.
|
Insert
for New Aircraft.
|
the Cape
Town Treaty); and the United States is a Contracting State under the Cape Town
Treaty.
|
|
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:
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 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, 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.
The
execution and delivery by WTC, in its individual capacity or as Mortgagee, 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, 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, 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, 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,
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, Pass Through Trustee or
Subordination Agent, is a party or by which WTC, in its individual capacity or
as Mortgagee, Pass Through Trustee or Subordination Agent, or any of their
respective properties is bound.
The
execution and delivery by WTC, in its individual capacity or as Mortgagee, 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, 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, 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, Pass Through Trustee or Subordination Agent, as the
case may be, and are enforceable against WTC, in its individual capacity or as
Mortgagee, 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.
WTC is a
Citizen of the United States.
On the
Closing Date, there are no Liens attributable to WTC in respect of all or any
part of the Collateral.
There are
no pending or, to the Actual Knowledge of WTC, threatened actions or proceedings
against WTC, in its individual capacity or as Mortgagee, 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, 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,
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.
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 Trustee, except for the offering and sale of the Pass Through
Certificates.
The
Equipment Notes to be acquired by the Subordination Agent are being acquired by
it for the account of the Pass Through Trustee, 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.
There are
no Taxes payable by the 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 the 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 the Pass Through Trustee or
WTC, as the case may be, for services rendered in connection with the
transactions contemplated by the Pass Through Trust Agreement), and there are no
Taxes payable by the 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 the 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 the Pass Through Trustee or WTC, as the
case may be, for services rendered in connection with the transactions
contemplated by the Pass Through Trust Agreement), and, assuming that the trust
created by the Pass Through Trust Agreement 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;
No Person
acting on behalf of WTC, in its individual capacity or as Mortgagee, 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.
|
COVENANTS,
UNDERTAKINGS AND AGREEMENTS
|
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.
(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.
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.
Owner
shall give to Standard & Poor’s Ratings Services, a Standard & Poor’s
Financial Services LLC business, 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.
WTC in
its individual capacity or as Mortgagee, Pass Through Trustee or Subordination
Agent, as the case may be, covenants and agrees with Owner as
follows:
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.
WTC in
its individual capacity or as Mortgagee, 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, 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.
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.
|
|
Covenants
of Note Holders
|
Each Note
Holder (including Subordination Agent) as to itself only covenants and agrees
with Owner and Mortgagee as follows:
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 the Pass Through Trustee in the Equipment
Notes to the trustee of the Related Trust (as defined in the Pass Through Trust
Agreement) in accordance with the 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, the 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).
Pass
Through Trustee, Subordination Agent, each Note Holder and Mortgagee each 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.
Pass
Through Trustee, Subordination Agent and Mortgagee each 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.
Pass
Through Trustee, Subordination Agent, Mortgagee and each Note Holder each 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 such country is 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 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.
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, the 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 the 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.
|
INDEMNIFICATION
AND EXPENSES
|
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.
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 Trustee),
to the extent attributable to the failure of the Pass Through Trustee to
distribute funds received and distributable by it in accordance with the Pass
Through Trust Agreement, (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 the 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 the Escrow Agreement,
(vi) to the extent attributable to the failure of the Depositary to pay
funds payable by it in accordance with the 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 Trustee, to the extent attributable
to the negligence or willful misconduct of the Pass Through Trustee in the
distribution of funds received and distributable by it in accordance with the
Pass Through Trust Agreement, (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 the 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 the
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.
This
Agreement constitutes a separate agreement with respect to each Indemnitee and
is enforceable directly by each such Indemnitee.
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.
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.
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.
|
8.2.1
|
Invoices
and Payment
|
The
Mortgagee, the Pass Through Trustee 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.
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.
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.
(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.
(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.
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.
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.
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.
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.
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.
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.
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.
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.
|
ASSIGNMENT
OR TRANSFER OF INTEREST
|
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 the 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.
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.
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.
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.
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.
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.
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.
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.
|
|
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.
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.
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.
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.
|
|
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.
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.
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.
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
|
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By
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|
|
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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 provided herein, but
solely as Mortgagee
|
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|
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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 provided herein, but
solely as Pass Through Trustee under the Pass Through Trust Agreement for
the Continental Airlines Pass Through Trust, 2009-1A-0
|
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|
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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 provided herein, but
solely as Subordination Agent
|
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By
|
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Name:
|
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Title:
|
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TO
PARTICIPATION
AGREEMENT
[___]
|
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
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Wilmington
Trust Company, Mortgagee
|
Wilmington
Trust Company
Wilmington,
Delaware 19890
Account
No.: [___]
ABA#:
031-100092
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
|
Wilmington
Trust Company
Wilmington,
Delaware 19890
Account
No.: [___]
ABA#:
031-100092
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 2009-1A Pass Through
Trust
|
Wilmington
Trust Company
Wilmington,
Delaware 19890
Account
No.: [___]
ABA#:
031-100092
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
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PARTICIPATION
AGREEMENT
[___]
|
COMMITMENT
PARTICIPATION
AGREEMENT [___]
|
CERTAIN
TERMS
Defined Term
|
|
Definition
|
Minimum
Liability Insurance Amount
|
|
$350,000,000
|
Threshold
Amount
|
|
|
19.Insert
$10,000,000 for 777-224ER, $7,500,000 for 757-224 and $5,000,000 for other
models.
PARTICIPATION
AGREEMENT
[___]
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PERMITTED
COUNTRIES
Argentina
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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
|
Page
1
e60709081ex4_10.htm
Note Purchase
Agreement
FORM OF
INDENTURE
TRUST
INDENTURE AND MORTGAGE [____]
Dated as
of [________ __], 2009
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
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1
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4
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5
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5
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11
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13
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13
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15
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TABLE OF
CONTENTS
(continued)
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ANNEX
A
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ANNEX
B
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EXHIBIT
A
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SCHEDULE
I
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TRUST
INDENTURE AND MORTGAGE [____]
TRUST
INDENTURE AND MORTGAGE [____], dated as of [________ __], 2009 (“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”).
W I T N E S S E T
H
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 A Equipment Notes and the
possible issuance of 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 Series A Equipment Notes, 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]1 [The Bills of Sale, to the extent they relate
to any continuing rights of Owner, and any other continuing rights of Owner, to
the extent Owner may assign or otherwise grant a Lien on them without the
consent of any other Person,]2 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]3 [such such other continuing rights of
Owner]4) 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
1.
|
Insert
for New Aircraft.
|
2.
|
Insert
for Owned Aircraft.
|
3.
|
Insert
for New Aircraft.
|
4.
|
Insert
for Owned Aircraft.
|
Purchase
Agreement, to the terms and conditions of the Consent and Agreement and the
Engine Consent and Agreement]5;
(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 (iii) 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 Indenture Agreements, to exercise in the Owner’s
name all rights and powers of the Owner under the Indenture Agreements (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 Indenture Agreements; and provided further
that, notwithstanding the occurrence or continuation of an Event of
Default, the Mortgagee shall not enter into any amendment of any Indenture
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
5.
|
Insert
for New Aircraft.
|
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:
DEFINITIONS
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
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 &
#160; 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__,]6 and thereafter on July 8 and January 8 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
6.
|
Insert
first July 8 or January 8 after the Closing
Date.
|
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 [______ __], 2009, 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).
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 Make-Whole Amount, if any, and any other amount (other than as covered by any
of the following clauses) due hereunder or under the Trust Indenture, second, 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, third, to the payment
of the Original Amount of this Equipment Note then due, 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 certain restrictions set forth in Sections
4.1(a)(i) 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, 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.]7
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.
7.
|
Insert
in the case of an Additional Series Equipment
Note.
|
THIS
EQUIPMENT NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
* * *
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.
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By:
|
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Name:
|
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|
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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
|
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By:
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Name:
|
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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]
* * *
The
Series A Equipment Notes shall be dated the Closing Date, shall have the
maturity and principal amount and shall bear interest as specified in Schedule I
hereto. On the Closing Date, the Series A Equipment Notes shall be
issued to the Subordination Agent on behalf of the Pass Through Trustee under
the 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(c) of the Intercreditor
Agreement. If Owner so elects to issue Additional Series Equipment
Notes, the Additional Series Equipment Notes shall be issued in a single
separate series outstanding at any time, shall be dated the date of original
issuance thereof and shall have such maturity, principal amount and interest
rate 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.
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 January 8, 2010, and on each July 8 and January 8
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 the 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 the denominator
of which shall be the then outstanding aggregate principal amount of all “Series
A Equipment Notes” (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 the 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 the Liquidity Facility minus Investment Earnings from such
Non-Extension Advance multiplied by (y) the fraction specified in the foregoing
clause (i); (iv) (x) the amount equal to interest on any Special Termination
Advance (other than any Applied Special Termination Advance) payable under
Section 3.07 of the Liquidity Facility minus Investment Earnings from such
Special Termination Advance multiplied by (y) the fraction specified in the
foregoing clause (i); (v) if any payment default shall have occurred and be
continuing with respect to interest on any “Series A Equipment Notes” (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,
Applied Non-Extension Advance or Applied Special Termination Advance payable
under Section 3.07 of the 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,
Applied Non-Extension Advance or Applied Special Termination 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 (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”
(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 (vi) any other amounts owed to the Liquidity Provider by the
Subordination Agent as borrower under the 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), (iv) or (v) 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 Agreement, (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 Agent and the Paying Agent in connection
therewith payable by the Pass Through Trustee under the Escrow
Agreement. 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”, “Applied Special Termination Advance”, “Cash Collateral
Account”,
“Downgrade
Advance”, “Final Advance”, “Investment Earnings”, “Non-Extension Advance”,
“Special Termination Advance” and “Unpaid Advance” shall have the meanings
specified in the 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).
(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.
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.
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 and (ii) agrees to the restrictions set forth in Sections 4.1(a)(i)
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)(i) or 4.1(a)(iii) 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.
(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.
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.
(a) All
(but not less than all) of the Series A Equipment Notes may be redeemed by the
Owner upon at least 30 days’ revocable prior written notice to the Mortgagee and
the Series A Note Holders, and such Series A 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 Series A Note Holders plus Make-Whole
Amount, if any, provided that no
redemption shall be permitted under this Section 2.11(a) unless simultaneously
with such redemption all Related Series A Equipment Notes shall also be
redeemed.
(b) The
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
such 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.
(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.
(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 Additional Series Equipment Notes, if issued, each Note Holder
of such Additional Series Equipment Notes 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 Additional Series
Equipment Notes 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 Additional
Series 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 Equipment Notes 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 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
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)
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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)
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after
giving effect to paragraph (i) above (and except as otherwise provided in
an amendment to this Trust Indenture pursuant to Section 10.01(b) hereof),
so much
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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:
First,
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(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,
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(i)
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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 then due and payable in respect of
Related Series A Equipment Notes;
and
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(ii)
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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 Additional Series Equipment Notes, but excluding
distributions of amounts of Related Secured Obligations then due and
payable in respect of Related Additional Series Equipment Notes;
and
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Third,
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(i)
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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; and
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(ii)
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after
giving effect to paragraph (i) above, to pay the amounts specified in
paragraph (ii) 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,
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as
provided in clause “Fourth” of Section 3.03
hereof;
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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. 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.
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:
First,
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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,
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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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(i)
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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, to each Note Holder and
Related Note Holder in the proportion that the aggregate unpaid Original
Amount of all Series A Equipment Notes held by such 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 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)
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after
giving effect to paragraph (i) 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 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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(iii)
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after
giving effect to paragraph (ii) 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.
(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).
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.
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.
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 (iii) 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
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 comply
with the notice requirement of Section 6.1.5 of the Participation Agreement and
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.
(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).
(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.
(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.
(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.
EVENTS
OF DEFAULT; REMEDIES OF MORTGAGEE
“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;
(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; or
(viii) the
occurrence of a Related Indenture Event of Default.
(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, so long as the Pass Through Trustee (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.
(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.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
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.
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.
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.
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
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
(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 Provider, 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
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 the 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 issuance or reissuance from time to time of a single series
of Additional Series Equipment Notes outstanding at any time (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, 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.
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.
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
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 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, 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 (iii) 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.
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.
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 Related Mortgagees, the Note
Holders, the Related Note Holders and the other Indenture Indemnitees, 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.
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.
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.
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.
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.
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.
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.
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.
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.
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 the 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 single series (other than “Series A”) thereunder, in the
Original Amount and maturity 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.
“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 Agreement.
“Citizen of the United
States” is defined in 49 U.S.C. § 40102(a)(15).
“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.]8
8.
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Insert
for New Aircraft.
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“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 the Deposit Agreement between the Escrow Agent and the Depositary, dated
as of the Issuance Date, which relates to the 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 The
Bank of New York Mellon, as Depositary under the 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.]9
“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 the
Escrow Agreement.
“Escrow Agreement”
means the Escrow and Paying Agent Agreement, among the Escrow Agent, the Paying
Agent, certain initial purchasers of the Pass Through Certificates named therein
and the Pass Through Trustee, dated as of the Issuance Date, which relates to
the Pass Through Trust, provided that, for
purposes of any obligation of Owner, no amendment, modification or supplement
to, or substitution or replacement of, such Escrow Agreement shall be effective
unless consented to by Owner.
9.
|
Insert
for New Aircraft.
|
“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.
[“Existing Financing”
means the financing arrangements that provided for a security interest granted
by Owner in the Aircraft and were outstanding on or after June 1, 2009.]10
10.
|
Insert
for Owned Aircraft.
|
“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 FAA Bill of Sale, an application for registration of the Aircraft
with the FAA in the name of Owner,]11 [the Release,]12 the Trust Indenture and the initial Trust
Supplement.
“FAA Regulations”
means the Federal Aviation Regulations issued or promulgated pursuant to the Act
from time to time.
“Financing Statements”
means, collectively, UCC financing statements covering the Collateral, by Owner,
as debtor, showing Mortgagee as secured party, [and UCC termination statements
with respect to the termination of the security interest granted under the
Existing Financing]13 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
11.
|
Insert
for New Aircraft.
|
12.
|
Insert
for Owned Aircraft.
|
13.
|
Insert
for Owned Aircraft.
|
Agent and
the Escrow Agent, (iv) the Liquidity Provider, (v) the Pass Through Trustee 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]14 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) the Liquidity Provider, (v) the 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 Trustee, the Liquidity Provider and the Subordination Agent, 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,
such Intercreditor Agreement shall be effective unless consented to by
Owner.
“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
July 1, 2009.
14.
|
Insert
for New Aircraft.
|
“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 Facility”
means the Revolving Credit Agreement between the Subordination Agent, as
borrower, and the Liquidity Provider, 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, such Liquidity Facility shall be
effective unless consented to by Owner.
“Liquidity Provider”
means Goldman Sachs Bank USA, a corporation organized under the banking law of
the State of New York, as “Liquidity Provider” (as such term is 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, 0.75%, and (ii) 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 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 Trustee 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 [______
__], 2009, among Owner, the Pass Through Trustee, 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 Agreement, the Note Purchase
Agreement, the Deposit Agreement, the Escrow Agreement, the Intercreditor
Agreement, the Liquidity Facility and the Fee Letter referred to in Section 2.03
of the Liquidity Facility, provided that no amendment, modification or
supplement to, or substitution or replacement of, 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 Trust (and any other pass through certificates for which such pass
through certificates may be exchanged).
“Pass Through Trust”
means the Continental Airlines Pass Through Trust 2009-1A.
“Pass Through Trust
Agreement” means the Trust Supplement, together with the Basic Pass
Through Trust Agreement, dated as of the Issuance Date by and between the Owner
and the Pass Through Trustee, provided, that, for purposes of any obligation of
Owner, no amendment, modification or supplement to, or substitution or
replacement of, 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 the Pass Through Trust Agreement.
“Pass Through Trustee
Agreements” means the Participation Agreement, the Pass Through Trust
Agreement, the Note Purchase Agreement, the Deposit Agreement, the Escrow
Agreement, and the Intercreditor Agreement.
“Paying Agent” means
Wilmington Trust Company, as paying agent under the Escrow
Agreement.
“Payment Date” means
each January 8 and July 8, commencing on January 8, 2010.
“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. 2061, dated as of October 10,
1997,]15 [the
Purchase Agreement No. 2333, dated December 29, 2000,]16 [the Purchase Agreement No. 1951, dated as of
July 23, 1996,]17 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.
15.
|
Insert
for Boeing 777-224ER
Aircraft.
|
16.
|
Insert
for Boeing 757-224 Aircraft.
|
17.
|
Insert
for Boeing 737-924ER, 737-824 or 737-724
Aircraft.
|
“Related Additional Series
Equipment Note” means, with respect to the Additional Series Equipment
Notes and as of any date, an “Additional Series Equipment Note”, as defined in
each Related Indenture, having the same designation as such 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 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, the Related Make-Whole
Amount, if any, due with respect thereto and all other amounts 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.
[“Release” means the
instrument releasing the security interest in the Aircraft granted to secure the
Existing Financing.]18
“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.
18.
|
Insert
for Owned Aircraft.
|
“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 the
Series A 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.”
“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 [___]
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INSURANCE
Capitalized
terms used but not defined herein shall have the respective meanings set forth
or incorporated by reference in Annex A to the Trust Indenture.
A. Liability
Insurance
1. Except
as provided in Section A.2 below, Owner will carry or cause to be carried
at all times, at no expense to Mortgagee, comprehensive airline legal liability
(including, but not limited to passenger liability, property damage, baggage
liability, cargo and mail liability, hangarkeeper’s liability and contractual
liability insurance) with respect to the Aircraft, the Airframe and the Engines,
which is (i) in an amount not less than the greater of (x) the amount
of comprehensive airline legal liability insurance from time to time applicable
to aircraft owned or leased and operated by Owner of the same type and operating
on similar routes as the Aircraft and (y) the Minimum Liability Insurance Amount
per occurrence; (ii) of the type and covering the same risks as from time
to time applicable to aircraft operated by Owner of the same type as the
Aircraft; and (iii) maintained in effect with insurers of nationally or
internationally recognized responsibility (such insurers being referred to
herein as “Approved Insurers”).
2. During
any period that the Aircraft is on the ground and not in operation, Owner may
carry or cause to be carried, in lieu of the insurance required by Section A.1
above, insurance otherwise conforming with the provisions of said Section A.1
except that (i) the amounts of coverage shall not be required to exceed the
amounts of public liability and property damage insurance from time to time
applicable to aircraft owned or operated by Owner of the same type as the
Aircraft which are on the ground and not in operation and (ii) the scope of
the risks covered and the type of insurance shall be the same as from time to
time shall be applicable to aircraft owned or operated by Owner of the same type
which are on the ground and not in operation.
B. Hull Insurance
1. Except
as provided in Section B.2 below, Owner will carry or cause to be carried at all
times, at no expense to Mortgagee, with Approved Insurers “all-risk” ground and
flight aircraft hull insurance covering each Aircraft (including the Engines
when they are installed on the Airframe or any other airframe) which is of the
type as from time to time applicable to aircraft owned by Owner of the same type
as the Aircraft for an amount denominated in United States Dollars not less than
the unpaid Original Amount together with six months of interest accrued thereon
(collectively, the “Debt Balance”).
Any
policies of insurance carried in accordance with this Section B.1 or
Section C covering the Aircraft and any policies taken out in substitution
or replacement for any such policies (i) shall name Mortgagee as exclusive
loss payee for any proceeds to be paid under such policies up to an amount equal
to the Debt Balance and (ii) shall provide that (A) in the event of a
loss involving proceeds in excess of the Threshold Amount, the proceeds in
respect of such loss up to an amount equal to the Debt Balance shall be payable
to the Mortgagee, except in the
case of a
loss with respect to an Engine installed on an airframe other than the Airframe,
in which case Owner (or any Permitted Lessee) shall endeavor to arrange for any
payment of insurance proceeds in respect of such loss to be held for the account
of the Mortgagee whether such payment is made to Owner (or any Permitted Lessee)
or any third party, it being understood and agreed that in the case of any
payment to Mortgagee otherwise than in respect of an Event of Loss, the
Mortgagee shall, upon receipt of evidence satisfactory to it that the damage
giving rise to such payment shall have been repaired or that such payment shall
then be required to pay for repairs then being made, pay the amount of such
payment to Owner or its order, and (B) the entire amount of any loss
involving proceeds of the Threshold Amount or less or the amount of any proceeds
of any loss in excess of the Debt Balance shall be paid to Owner or its order
unless an Event of Default shall have occurred and be continuing and the
insurers have been notified thereof by the Mortgagee. In the case of
a loss with respect to an engine (other than an Engine) installed on the
Airframe, Mortgagee shall hold any payment to it of any insurance proceeds in
respect of such loss for the account of Owner or any other third party that is
entitled to receive such proceeds.
2. During
any period that the Aircraft is on the ground and not in operation, Owner may
carry or cause to be carried, in lieu of the insurance required by Section B.1
above, insurance otherwise conforming with the provisions of said Section B.1
except that the scope of the risks and the type of insurance shall be the same
as from time to time applicable to aircraft owned by Owner of the same type
similarly on the ground and not in operation, provided that Owner
shall maintain insurance against risk of loss or damage to the Aircraft in an
amount equal to the Debt Balance during such period that the Aircraft is on the
ground and not in operation.
C. War-Risk,
Hijacking and Allied Perils Insurance
If Owner
(or any Permitted Lessee) shall at any time operate or propose to operate the
Aircraft, Airframe or any Engine (i) in any area of recognized hostilities
or (ii) on international routes and war-risk, hijacking or allied perils
insurance is maintained by Owner (or any Permitted Lessee) with respect to other
aircraft owned or operated by Owner (or any Permitted Lessee) on such routes or
in such areas, Owner shall maintain or cause to be maintained war-risk,
hijacking and related perils insurance of substantially the same type carried by
major United States commercial air carriers operating the same or comparable
models of aircraft on similar routes or in such areas and in no event in an
amount less than the unpaid Original Amount.
D. General
Provisions
Any
policies of insurance carried in accordance with Sections A, B and C,
including any policies taken out in substitution or replacement for such
policies:
(i)in the case of Section A, shall
name Mortgagee, each Note Holder, each Related Mortgagee, each Related Note
Holder and the Liquidity Provider as an additional insured (collectively, the
“Additional Insureds”), as its interests may appear;
(ii)shall apply worldwide and have no
territorial restrictions or limitations (except only in the case of war,
hijacking and related perils insurance required under
Section C,
which shall apply to the fullest extent available in the international insurance
market);
(iii)shall provide that, in respect of the
interests of the Additional Insureds in such policies, the insurance shall not
be invalidated or impaired by any act or omission (including misrepresentation
and nondisclosure) by Owner (or any Permitted Lessee) or any other Person
(including, without limitation, use for illegal purposes of the Aircraft or any
Engine) and shall insure the Additional Insureds regardless of any breach or
violation of any representation, warranty, declaration, term or condition
contained in such policies by Owner (or any Permitted Lessee);
(iv)shall provide that, if the insurers
cancel such insurance for any reason whatsoever, or if the same is allowed to
lapse for nonpayment of premium, or if any material change is made in the
insurance which adversely affects the interest of any of the Additional
Insureds, such cancellation, lapse or change shall not be effective as to the
Additional Insureds for 30 (seven days in the case of war risk, hijacking and
allied perils insurance) days after receipt by the Additional Insureds of
written notice by such insurers of such cancellation, lapse or change, provided that if any
notice period specified above is not reasonably obtainable, such policies shall
provide for as long a period of prior notice as shall then be reasonably
obtainable;
(v)shall waive any rights of setoff
(including for unpaid premiums), recoupment, counterclaim or other deduction,
whether by attachment or otherwise, against each Additional
Insured;
(vi)shall waive any right of recourse,
subrogation, setoff, recoupment, counterclaim or other deduction against any
Additional Insured;
(vii)shall be primary without right of
contribution from any other insurance that may be available to any Additional
Insured;
(viii)shall provide that all of the liability
insurance provisions thereof, except the limits of liability, shall operate in
all respects as if a separate policy had been issued covering each party insured
thereunder;
(ix)shall provide that none of the
Additional Insureds shall be liable for any insurance premium; and
(x)shall contain a 50/50% Clause per
Lloyd’s Aviation Underwriters’ Association Standard Policy Form AVS
103.
E. Reports
and Certificates; Other Information
On or
prior to the Closing Date and on or prior to each renewal date of the insurance
policies required hereunder, Owner will furnish or cause to be furnished to
Mortgagee insurance certificates describing in reasonable detail the insurance
maintained by Owner hereunder and a report, signed by Owner’s regularly retained
independent insurance broker (the “Insurance
Broker”),
stating the opinion of such Insurance Broker that (a) all premiums in connection
with the insurance then due have been paid and (b) such insurance complies with
the terms of this Annex B, except that such opinion shall not be required with
respect to war risk insurance provided by the FAA. To the extent such
agreement is reasonably obtainable Owner will also cause the Insurance Broker to
agree to advise Mortgagee in writing of any default in the payment of any
premium and of any other act or omission on the part of Owner of which it has
knowledge and which might invalidate or render unenforceable, in whole or in
part, any insurance on the Aircraft or Engines or cause the cancellation or
termination of such insurance, and to advise Mortgagee in writing at least 30
days (seven days in the case of war-risk and allied perils coverage or such
shorter period as may be available in the international insurance market, as the
case may be) prior to the cancellation, lapse or material adverse change of any
insurance maintained pursuant to this Annex B.
F. Right
to Pay Premiums
The
Additional Insureds shall have the rights but not the obligations of an
additional named insured. None of Mortgagee and the other Additional
Insured shall have any obligation to pay any premium, commission, assessment or
call due on any such insurance (including
reinsurance). Notwithstanding the foregoing, in the event of
cancellation of any insurance due to the nonpayment of premiums, Mortgagee shall
have the option, in its sole discretion, to pay any such premium in respect of
the Aircraft that is due in respect of the coverage pursuant to this Trust
Indenture and to maintain such coverage, as Mortgagee may require, until the
scheduled expiry date of such insurance and, in such event, Owner shall, upon
demand, reimburse Mortgagee for amounts so paid by them.
G. Deductibles;
Self-insurance
Owner may
self-insure by way of deductible, premium adjustment or franchise provisions or
otherwise (including, with respect to insurance maintained pursuant to
Section B, insuring for a maximum amount which is less than the Debt
Balance) in the insurance covering the risks required to be insured against
pursuant to Section 4.06 and this Annex B under a program applicable to all
aircraft in Owner’s fleet, but in no case shall the aggregate amount of
self-insurance in regard to Section 11 and this Annex B exceed during
any policy year, with respect to all of the aircraft in Owner’s fleet
(including, without limitation, the Aircraft), the lesser of (a) 50% of the
largest replacement value of any single aircraft in Owner’s fleet and
(b) 1-1/2% of the average aggregate insurable value (during the preceding
policy year) of all aircraft (including, without limitation, the Aircraft) on
which Owner carries insurance, unless an insurance broker of national standing
shall certify that the standard among all other major U.S. airlines is a higher
level of self-insurance, in which case Owner may self-insure to such higher
level. In addition, Owner (and any Permitted Lessee) may self-insure
to the extent of any applicable deductible per aircraft that does not exceed
industry standards for major U.S. airlines.
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 [______ __], 2009 (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:
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Manufacturer’s
Serial Number
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The
Boeing Company
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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:
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.
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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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Trust
Indenture and Mortgage
Equipment
Note Amortization
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Percentage
of Original
Amount
to be Paid
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e60709081ex23_1.htm
June 16, 2009
CONTINENTAL
AIRLINES, INC.
1600
Smith Street
Houston,
TX 77002
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Re:
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Preliminary Prospectus
Supplement, dated June 16, 2009, to the Prospectus dated April 24, 2009,
included in Registration
Statement No.
333-158781 of Continental Airlines,
Inc.
|
Ladies
and Gentlemen:
We
consent to the use of the report, dated as of June 10, 2009 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.
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Sincerely,
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AIRCRAFT INFORMATION SERVICES, INC.
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Headquarters,
26072 Merit Circle, Suite 123, Laguna Hills, CA 92653
TEL:
949-582-8888 FAX: 949-582-8887 EMAIL:
mail@AISI.aero
e60709081ex23_2.htm
1295 Northern Boulevard
Manhasset,
New York 11030
(516)
365-6272 ·
Fax (516) 365-6287
June 16,
2009
CONTINENTAL
AIRLINES, INC.
1600
Smith Street
Houston,
TX 77002
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Re:
|
Preliminary Prospectus
Supplement, dated June 16, 2009, to the Prospectus dated April 24,
2009, included in Registration Statement No. 333-158781 of
Continental Airlines, Inc.
|
Ladies
& Gentlemen:
We
consent to the use of the report, dated as of June 10, 2009 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.
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Sincerely,
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BK
ASSOCIATES, INC.
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John
F. Keitz
President
ISTAT
Senior Certified Appraiser
And
Appraiser Fellow
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JFK/kf
e60709081ex23_3.htm
June 16,
2009
CONTINENTAL
AIRLINES, INC.
1600
Smith Street
Houston,
TX 77002
|
Re:
|
Preliminary Prospectus
Supplement, dated June 16, 2009, to
the
|
|
Prospectus dated April
24, 2009, included in
Registration
|
|
Statement No.
333-158781 of Continental Airlines,
Inc.
|
Ladies
and Gentlemen:
We
consent to the use of the report, dated as of June 10, 2009 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.
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Sincerely,
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MORTEN BEYER & AGNEW, INC.
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2101
wilson boulevard ½ suite 1001
½
arlington, virginia 22201
phone: 1
703 276 3200 ½ fax: 1 703
276 3201
www.mba.aero