e62158477frm8k.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):
December 27, 2012
 
 
CONTINENTAL AIRLINES, INC.
(Exact name of registrant as specified in its charter)
 
       Delaware
1-10323
74-2099724
  (State or other jurisdiction of incorporation)
(Commission File Number)
(IRS Employer Identification No.)
   
   
  1600 Smith Street, Dept. HQSEO, Houston, Texas
77002
  (Address of principal executive offices)
(Zip Code)
(713) 324-2950
(Registrant’s telephone number, including area code)

  Check the appropriate box below if the Form 8−K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
o Soliciting material pursuant to Rule 14a−12 under the Exchange Act (17 CFR 240.14a−12)
 
o Pre−commencement communications pursuant to Rule 14d−2(b) under the Exchange Act (17 CFR 240.14d−2(b))
 
o Pre−commencement communications pursuant to Rule 13e−4(c) under the Exchange Act (17 CFR 240.13e−4(c))


 
 

 
 
Item 1.01         Entry into a Material Definitive Agreement.
 
On December 27, 2012 (the “Issuance Date”), Continental Airlines, Inc. (the “Company”), Wilmington Trust, National Association, as pass through trustee (the “Trustee”) under a certain pass through trust newly formed by the Company, Wilmington Trust Company, as subordination agent under the Intercreditor Agreement (2012-1), Wilmington Trust, National Association, as subordination agent under the Intercreditor Agreement (2012-2), U.S. Bank National Association, as escrow agent under the Escrow Agreement (as defined below), and Wilmington Trust, National Association, as paying agent (“Paying Agent”) under the Escrow Agreement, entered into the Note Purchase Agreement, dated as of December 27, 2012 (the “Note Purchase Agreement”).  The Note Purchase Agreement provides for the issuance by the Company of Series C equipment notes (the “Series C Equipment Notes”) in the aggregate principal amount of $425,000,000 to be secured by 16 new Boeing aircraft scheduled for delivery from December 2012 through September 2013 (collectively, the “Future Delivery Aircraft”) and 26 Boeing aircraft currently owned by the Company (the “Owned Aircraft” and, together with the Future Delivery Aircraft, the “Aircraft”) and previously financed under the Continental Airlines Series 2012-1 or Series 2012-2 pass through certificates (each, a “Prior Series”).  The Series C Equipment Notes will bear interest at the rate of 6.125% per annum.

On the Issuance Date, the trust indenture and mortgage with respect to each Owned Aircraft (an “Owned Aircraft Indenture”) was amended to provide, among other things, for the issuance of a Series C Equipment Note with respect to such Owned Aircraft, and a Series C Equipment Note was issued under each Owned Aircraft Indenture by the Company for the benefit of the Trustee at a purchase price of 100% of the principal amount thereof for aggregate proceeds to the Company of $256,478,000.  Such proceeds will be used by the Company for general corporate purposes.  Prior to the Issuance Date, a Series A and Series B equipment note (a “Series A Equipment Note” and “Series B Equipment Note” and, collectively with the Series C Equipment Note, the “Equipment Notes”) had been issued under each Owned Aircraft Indenture for the benefit of the pass through trustees under one or the other of the Prior Series.
 
The Note Purchase Agreement provides for the financing after the Issuance Date during a specified period of each Future Delivery Aircraft with the proceeds of Series A and Series B Equipment Notes issued by the Company for the benefit of the pass through trustees under the Continental Airlines Series 2012-2 pass through certificates and Series C Equipment Notes issued by the Company for the benefit of the Trustee.  The proceeds from the issuance of such Equipment Notes will be used in connection with the financing of the related Future Delivery Aircraft.  If all such Series C Equipment Notes are issued with respect to the Future Delivery Aircraft, the aggregate proceeds from such issuances will be $168,522,000.  The form of the trust indenture and mortgage for use to finance the Future Delivery Aircraft under the Continental Airlines Series 2012-2 pass through certificates (the “Future Delivery Indentures” and, together with the Owned Aircraft Indentures, the “Indentures”) will be modified pursuant to the Note Purchase Agreement to provide, among other things, for the issuance of the Series C Equipment Notes with respect to each Future Delivery Aircraft.  The Series C Equipment Notes issued on the Issuance Date have been, and the Series C Equipment Notes issued after the Issuance Date will be, purchased by the Trustee using the proceeds from the sale of Pass Through Certificates,

 
 

 

Series 2012-3C (the “Certificates”) issued by a pass through trust newly-formed by the Company on the Issuance Date.

Pending the purchase of the Series C Equipment Notes relating to the Future Delivery Aircraft, the proceeds from the sale of the Certificates, less the proceeds used to purchase Series C Equipment Notes on the Issuance Date, were placed in escrow by the Trustee pursuant to an Escrow and Paying Agent Agreement, dated as of December 27, 2012, among U.S. Bank National Association, as escrow agent, Credit Suisse Securities (USA) LLC, Morgan Stanley & Co. LLC and Goldman, Sachs & Co., for themselves and on behalf of the several underwriters of the Certificates, and Wilmington Trust, National Association, as Trustee and Paying Agent (the “Escrow Agreement”).  The escrowed funds were deposited with Natixis S.A., acting through its New York Branch, under a Deposit Agreement, dated as of December 27, 2012, between U.S. Bank National Association, as escrow agent, and Natixis S.A., acting through its New York Branch, as depositary.  The escrowed funds bear interest at a rate per annum the same as the Series C Equipment Notes.

Interest on the Series C Equipment Notes is payable semi-annually in April and October, beginning in the first such month after issuance, and the aggregate principal amount of the Series C Equipment Notes is scheduled for payment in April 2018.  Interest paid on the Series C Equipment Notes and on the escrowed funds will be distributed to holders of the Certificates on each April 29 and October 29, commencing April 29, 2013, and the distribution of the aggregate principal amount of the Series C Equipment Notes to holders of the Certificates is expected on April 29, 2018.
 
Maturity of the Series C 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.  In addition, there will be cross-default provisions in the Indentures of each Prior Series. This means that if the Equipment Notes issued with respect to one Aircraft covered by a Prior Series are in default and remedies are exercisable with respect to such Aircraft, the Equipment Notes issued with respect to the remaining Aircraft covered by such Prior Series will also be in default, and remedies will be exercisable with respect to all Aircraft covered by such Prior Series. There will not be cross-default provisions between Indentures that are not of the same Prior Series, except it will constitute a default under the Indentures of a Prior Series if (i) the Series A and Series B Equipment Notes of such Prior Series have been paid in full and (ii) a default has occurred and is continuing under the Indentures of the other Prior Series.
 
The Series C Equipment Notes held for the Trustee will be cross-collateralized.  This means that any proceeds from the exercise of remedies with respect to an Aircraft covered by a Prior Series that secures any such Series C Equipment Note or from any other exercise of remedies with respect to such Aircraft, after payment of all Series A and Series B Equipment Notes issued with respect to such Prior Series then due, will (subject to the provisions of the U.S. Bankruptcy Code) be available to cover shortfalls then due under other Series C Equipment Notes issued with respect to the same Prior Series.  In the absence of any such shortfall, excess proceeds will be held by the relevant Indenture Trustee as additional collateral for the outstanding Series C

 
 

 
 
Equipment Notes issued with respect to the same Prior Series until they have been paid in full and thereafter for the Series C Equipment Notes issued under the other Prior Series.
 
 
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. 333-181014) (the “Registration Statement”).  The foregoing description of these agreements and instruments is qualified in its entirety by reference to these agreements and instruments, copies of which are filed herewith as exhibits and are incorporated by reference herein.  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 Intercreditor Agreements”, “Description of the Equipment Notes” and “Underwriting” contained in the Company’s final Prospectus Supplement, dated December 12, 2012 (the “Prospectus Supplement”), to the Prospectus, dated April 27, 2012, filed with the Securities and Exchange Commission on December 14, 2012 pursuant to Rule 424(b) under the Securities Act, which disclosure is hereby incorporated herein by reference.

Item 2.03. Creation of Direct Financial Obligation.

See Item 1.01.


Item 9.01. Financial Statements and Exhibits.

(d)           Exhibits.  The documents listed as exhibits below are filed as exhibits with reference to the Registration Statement.  The Registration Statement and the final Prospectus Supplement, dated December 12, 2012, to the Prospectus, dated April 27, 2012, relate to the offering of the Certificates.
 
 
1.1
Underwriting Agreement, dated December 12, 2012, among the underwriters named therein, acting through their representatives Credit Suisse Securities (USA) LLC, Morgan Stanley & Co. LLC and Goldman, Sachs & Co., Natixis S.A., acting through its New York Branch, as depositary, and Continental Airlines, Inc.
 
 
4.1
Trust Supplement No. 2012-3C-O, dated as of December 27, 2012, between Wilmington Trust, National Association, as trustee, and Continental Airlines, Inc., to Pass Through Trust Agreement, dated as of October 3, 2012
 
 
4.2
Trust Supplement No. 2012-3C-S, dated as of December 27, 2012, between Wilmington Trust, National Association, as trustee, and Continental Airlines, Inc., to Pass Through Trust Agreement, dated as of October 3, 2012

 
 

 
 
 
4.3
Amendment No. 1 to Intercreditor Agreement (2012-1), dated as of December 27, 2012, among Wilmington Trust, National Association, as trustee, Continental Airlines, Inc. and Wilmington Trust Company, as subordination agent and trustee
 
 
4.4
Amendment No. 1 to Intercreditor Agreement (2012-2), dated as of December 27, 2012, among Wilmington Trust, National Association, as trustee, Continental Airlines, Inc. and Wilmington Trust, National Association, as subordination agent and trustee
 
 
4.5
Deposit Agreement, dated as of December 27, 2012, between U.S. Bank National Association, as escrow agent, and Natixis S.A., acting through its New York Branch, as depositary
 
 
4.6
Escrow and Paying Agent Agreement, dated as of December 27, 2012, among U.S. Bank National Association, as escrow agent, Credit Suisse Securities (USA) LLC, Morgan Stanley & Co. LLC and Goldman, Sachs & Co., for themselves and on behalf of the several Underwriters of the Certificates, Wilmington Trust, National Association, as trustee, and Wilmington Trust, National Association, as paying agent
 
 
4.7
Note Purchase Agreement, dated as of December 27, 2012, among Continental Airlines, Inc., Wilmington Trust, National Association, as trustee, Wilmington Trust Company, as subordination agent under the Intercreditor Agreement 2012-1, Wilmington Trust, National Association, as subordination agent under the Intercreditor Agreement 2012-2, U.S. Bank National Association, as escrow agent, and Wilmington Trust, National Association, as paying agent
 
 
4.8
Form of Amendment No. 1 to Participation Agreement (for Series 2012-1) among Continental Airlines, Inc., Wilmington Trust Company, as mortgagee, subordination agent and trustee and Wilmington Trust, National Association, as trustee (included in Exhibit 4.7 hereto as Exhibit B-1 to Note Purchase Agreement)
 
 
4.9
Form of Amendment No. 1 to Participation Agreement (for Series 2012-2) among Continental Airlines, Inc. and Wilmington Trust, National Association, as mortgagee, subordination agent and trustee (included in Exhibit 4.7 hereto as Exhibit B-2 to Note Purchase Agreement)
 
 
4.10
Form of Amendment No. 1 to Trust Indenture and Mortgage (for Series 2012-1) among Continental Airlines, Inc., Wilmington Trust, National Association, as securities intermediary, and Wilmington Trust Company, as mortgagee (included in Exhibit 4.7 hereto as Exhibit C-1 to Note Purchase Agreement)
 
 
4.11
Form of Amendment No. 1 to Trust Indenture and Mortgage (for Series 2012-2) between Continental Airlines, Inc. and Wilmington Trust, National Association, as mortgagee (included in Exhibit 4.7 hereto as Exhibit C-2 to Note Purchase Agreement)

 
 

 
 
 
4.12
Form of Continental Airlines Pass Through Certificate, Series 2012-3C-O (included in Exhibit 4.1 as Exhibit A to the Trust  Supplement)
 
 
23.1
Consent of Aircraft Information Services, Inc., dated December 12, 2012
 
 
23.2
Consent of BK Associates, Inc., dated December 12, 2012
 
 
23.3
Consent of Morten Beyer & Agnew, Inc., dated December 12, 2012

 
 

 
 
SIGNATURE
 
Pursuant to the requirements of the Securities Exchange Act of 1934, Continental Airlines, Inc. has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 
CONTINENTAL AIRLINES, INC.
 
     
     
Date: January 2, 2013
By
/s/ Christopher T. Kenny
 
   
Christopher T. Kenny
 
   
Vice President & Controller
 



 
 

 

EXHIBIT INDEX
 
 
1.1
Underwriting Agreement, dated December 12, 2012, among the underwriters named therein, acting through their representatives Credit Suisse Securities (USA) LLC, Morgan Stanley & Co. LLC and Goldman, Sachs & Co., Natixis S.A., acting through its New York Branch, as depositary, and Continental Airlines, Inc.
 
 
4.1
Trust Supplement No. 2012-3C-O, dated as of December 27, 2012, between Wilmington Trust, National Association, as trustee, and Continental Airlines, Inc., to Pass Through Trust Agreement, dated as of October 3, 2012
 
 
4.2
Trust Supplement No. 2012-3C-S, dated as of December 27, 2012, between Wilmington Trust, National Association, as trustee, and Continental Airlines, Inc., to Pass Through Trust Agreement, dated as of October 3, 2012
 
 
4.3
Amendment No. 1 to Intercreditor Agreement (2012-1), dated as of December 27, 2012, among Wilmington Trust, National Association, as trustee, Continental Airlines, Inc. and Wilmington Trust Company, as subordination agent and trustee
 
 
4.4
Amendment No. 1 to Intercreditor Agreement (2012-2), dated as of December 27, 2012, among Wilmington Trust, National Association, as trustee, Continental Airlines, Inc. and Wilmington Trust, National Association, as subordination agent and trustee
 
 
4.5
Deposit Agreement, dated as of December 27, 2012, between U.S. Bank National Association, as escrow agent, and Natixis S.A., acting through its New York Branch, as depositary
 
 
4.6
Escrow and Paying Agent Agreement, dated as of December 27, 2012, among U.S. Bank National Association, as escrow agent, Credit Suisse Securities (USA) LLC, Morgan Stanley & Co. LLC and Goldman, Sachs & Co., for themselves and on behalf of the several Underwriters of the Certificates, Wilmington Trust, National Association, as trustee, and Wilmington Trust, National Association, as paying agent
 
 
4.7
Note Purchase Agreement, dated as of December 27, 2012, among Continental Airlines, Inc., Wilmington Trust, National Association, as trustee, Wilmington Trust Company, as subordination agent under the Intercreditor Agreement 2012-1, Wilmington Trust, National Association, as subordination agent under the Intercreditor Agreement 2012-2, U.S. Bank National Association, as escrow agent, and Wilmington Trust, National Association, as paying agent

 
 

 
 
 
4.8
Form of Amendment No. 1 to Participation Agreement (for Series 2012-1) among Continental Airlines, Inc., Wilmington Trust Company, as mortgagee, subordination agent and trustee and Wilmington Trust, National Association, as trustee (included in Exhibit 4.7 hereto as Exhibit B-1 to Note Purchase Agreement)
 
 
4.9
Form of Amendment No. 1 to Participation Agreement (for Series 2012-2) among Continental Airlines, Inc. and Wilmington Trust, National Association, as mortgagee, subordination agent and trustee (included in Exhibit 4.7 hereto as Exhibit B-2 to Note Purchase Agreement)
 
 
4.10
Form of Amendment No. 1 to Trust Indenture and Mortgage (for Series 2012-1) among Continental Airlines, Inc., Wilmington Trust, National Association, as securities intermediary, and Wilmington Trust Company, as mortgagee (included in Exhibit 4.7 hereto as Exhibit C-1 to Note Purchase Agreement)
 
 
4.11
Form of Amendment No. 1 to Trust Indenture and Mortgage (for Series 2012-2) between Continental Airlines, Inc. and Wilmington Trust, National Association, as mortgagee (included in Exhibit 4.7 hereto as Exhibit C-2 to Note Purchase Agreement)
 
 
4.12
Form of Continental Airlines Pass Through Certificate, Series 2012-3C-O (included in Exhibit 4.1 as Exhibit A to the Trust Supplement)
 
 
23.1
Consent of Aircraft Information Services, Inc., dated December 12, 2012
 
 
23.2
Consent of BK Associates, Inc., dated December 12, 2012
 
 
23.3
Consent of Morten Beyer & Agnew, Inc., dated December 12, 2012
 
 
 
Unassociated Document
 
Exhibit 1.1
 
 
EXECUTION VERSION
 
 
 
CONTINENTAL AIRLINES, INC.
Continental Airlines Pass Through Certificates, Series 2012-3C-O
$425,000,000


UNDERWRITING AGREEMENT


             December 12, 2012


CREDIT SUISSE SECURITIES (USA) LLC
MORGAN STANLEY & CO. LLC
GOLDMAN, SACHS & CO.

As representatives of the several underwriters
    named in Schedule II hereto
c/o Credit Suisse Securities (USA) LLC                                                                                     
Eleven Madison Avenue                                                                                     
New York, New York 10010                                                                           

c/o Morgan Stanley & Co. LLC                                                                                     
1585 Broadway                                                                                     
New York, New York 10036

c/o Goldman, Sachs & Co.
200 West Street
New York, New York 10282                                                                                     
 

 
Ladies and Gentlemen:
 
Continental Airlines, Inc., a Delaware corporation (the “Company”), proposes that Wilmington Trust, National Association, 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 2012-3C-O (the “Class C Certificates”), in the aggregate face 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 Class C Certificates will be issued pursuant to a Pass Through Trust Agreement, dated as of October 3, 2012 (the “Basic Agreement”), between the Company and the Trustee, as supplemented with respect to the issuance of the Class C Certificates by a separate
 

 
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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 2012-3C-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 “Representatives” shall mean, collectively, Credit Suisse Securities (USA) LLC (“CS”), Morgan Stanley & Co. LLC (“MS”) and Goldman, Sachs & Co. (“GS”) on behalf of the Underwriters.
 
The Company is entitled to sell Series C Equipment Notes (as defined in the Note Purchase Agreement (as defined below)) secured by aircraft financed under the terms of pass through certificates previously issued by the Company under Series 2012-1 (“Series 2012-1”) and Series 2012-2 (“Series 2012-2,” and together with Series 2012-1, the “Prior Series”). A portion of the cash proceeds from the offering of the Class C Certificates will be used by the Trustee to purchase Series C Equipment Notes on the Closing Date.
 
The cash proceeds of the offering of Class C Certificates by the Original Trust, to the extent not used to purchase Series C Equipment Notes on the Closing Date, will be paid to U.S. Bank National Association, as escrow agent (the “Escrow Agent”), under an Escrow and Paying Agent Agreement among the Escrow Agent, the representatives of the Underwriters, the Trustee of such Original Trust and Wilmington Trust, National Association, as paying agent (the “Paying Agent”), for the benefit of the holders of Class C Certificates issued by the Original Trust (the “Escrow Agreement”).  The Escrow Agent will deposit such cash proceeds (the “Deposits”) with Natixis S.A., a French société anonyme acting through its New York Branch (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 Series C 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, National Association, as Trustee and as Paying Agent of the Original Trust, Wilmington Trust Company, as 2012-1 Subordination Agent (as defined in the Note Purchase Agreement), Wilmington Trust, National Association, as 2012-2 Subordination Agent (as defined in the Note Purchase Agreement), and the Escrow Agent. The Escrow Agent will issue receipts to be attached to each Class C Certificate (“Escrow Receipts”) representing each holder’s interest in amounts deposited with the Escrow Agent with respect to the Class C Certificates and will pay to such holders through the Paying Agent interest accrued on the Deposits and received by such Paying Agent pursuant to the Deposit Agreement at a rate per annum equal to the interest rate applicable to the Class C Certificates.
 
On the earlier of (i) the first Business Day following December 31, 2013 or, if later, the fifth Business Day after the Delivery Period Termination Date (as defined in the Original Trust Supplement) and (ii) the fifth Business Day following the occurrence of a Triggering Event (as defined in the Intercreditor Agreement for the Prior Series designated as “2012-2”) (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
 

 
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terms except as described in the Prospectus (as hereinafter defined) (the “Successor Trust” and, together with the Original Trust, the “Trusts”) governed by the Basic Agreement, as supplemented with respect to the Class C Certificates by a separate Pass Through Trust Supplement (individually, the “Successor Trust Supplement”), between the Company and the Trustee (the Basic Agreement, as supplemented by such 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 Class C Certificate outstanding on the Trust Transfer Date will represent the same interest in the Successor Trust as such Class C Certificate represented in the Original Trust.  Wilmington Trust, National Association initially will also act as trustee of the Successor Trust (the “Successor Trustee”).
 
The holders of the Class C Certificates will be entitled to the benefits of the Intercreditor Agreement under each Prior Series.
 
The Class C Certificates may only be sold by the Underwriters to persons reasonably believed by the Underwriters to be “qualified institutional buyers” (“QIBs”), as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”).
 
The Company has filed with the Securities and Exchange Commission (the “Commission”) an automatic shelf registration statement on Form S-3 (File No. 333-181014) 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 Class C 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 27, 2012 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 Class C 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 prospectus identified in Item 1 of 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
 

 
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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 or in the Note Purchase Agreement; provided that, as used in this Agreement, the term “Operative Agreements” shall mean the Deposit Agreement, the Escrow Agreement, the Intercreditor Agreements, the Intercreditor Agreement Amendments, the Designated Agreements, the Assignment and Assumption Agreement, the PA Amendments, the Indenture Amendments 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 2:05 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 Class C 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
 

 
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not superseded or modified and, when taken together with the Time of Sale Prospectus, as amended and supplemented, each such “issuer free writing prospectus”, as amended and supplemented, did not as of the Applicable Time, and as of the Closing Date will not, 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. 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 the Representatives 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 Class C 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 Class C 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
 

 
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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 (except for the liens securing the Company’s 6.75% Senior Secured Notes due 2015 and the “Junior Lien Debt” with respect thereto).
 
(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 Closing Date (in the case of any Aircraft for which Series C Equipment
 

 
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Notes are issued on the Closing Date) or the applicable Funding Date related to such Financing Agreements (in the case of any Aircraft for which Series C Equipment Notes are issued after the Closing Date). The Aircraft consist of the 20 Boeing 737-924ER aircraft and three Boeing 787-8 aircraft acquired by the Company prior to the date of this Agreement (the “Owned Aircraft”) and the 15 Boeing 737-924ER aircraft and four Boeing 787-8 aircraft, each of which is scheduled to be newly delivered by the manufacturer during the Delivery Period (as defined in the Note Purchase Agreement) (the “New Aircraft” and, together with the Owned Aircraft, the “Aircraft”).
 
(viii) This Agreement has been duly authorized, executed and delivered by the Company and the Operative Agreements to which the Company will be a party have been duly authorized and 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 as amended by the Indenture Amendments may also be limited by applicable laws which may affect the remedies provided therein but which do not affect the validity of the Indentures as amended by the Indenture Amendments 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 has been duly qualified under the Trust Indenture Act.  The Class C Certificates, the Escrow Receipts 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
 

 
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reference in the Time of Sale Prospectus present the information required to be stated therein.
 
(xi) The pro forma condensed combined financial information of the Company and United Air Lines, Inc. (“United”) and the related notes thereto incorporated by reference in the Time of Sale Prospectus and the Prospectus have been prepared in accordance with the Commission’s rules and guidelines with respect to pro forma financial information in all material respects and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein.
 
(xii) The consolidated financial statements of United 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 United and its consolidated subsidiaries at the dates indicated and the consolidated results of operations and cash flows of United 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. The financial statement schedules of United, if any, incorporated by reference in the Time of Sale Prospectus present the information required to be stated therein.
 
(xiii) 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.
 
(xiv) On or prior to the Closing Date, the issuance of the Class C 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 Class C 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 Class C 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.
 
(xv) 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
 

 
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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.
 
(xvi) 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.
 
(xvii) 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.
 
(xviii) 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.
 
(xix) 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.
 
(xx) The accountants that examined and issued an auditors’ report with respect to the consolidated financial statements of the Company and United and the financial statement schedules of the Company and United, if any, included or incorporated by reference in the Registration Statement are independent public accountants within the meaning of the Securities Act.
 
(xxi) 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
 

 
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material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.
 
(xxii) 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 Class C 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.
 
(xxiii) 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 to be executed and delivered after the Closing Date, as described in the Time of Sale Prospectus).
 
(xxiv) None of Aircraft Information Services, Inc., BK Associates, Inc. or 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.
 
(xxv) 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.
 

 
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(xxvi) The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission's rules and guidelines applicable thereto.
 
(xxvii) Except as set forth in the Time of Sale Prospectus, (A) the Company maintains required “disclosure controls and procedures” (as defined in Rule 15d-15(e) under the Exchange Act); and (B) the Company’s “disclosure controls and procedures” are designed to reasonably ensure that material information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or furnishes under the Exchange Act is communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications of the Chief Executive Officer and Chief Financial Officer of the Company required under the Exchange Act with respect to such reports.
 
(xxviii) The Company and its subsidiaries have instituted and maintained policies and procedures designed to promote and achieve compliance with the Foreign Corrupt Practices Act of 1977, as amended, and to the knowledge of the Company, the Company and its subsidiaries have conducted their businesses in compliance with such policies and procedures.
 
(xxix)  The operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any U.S. governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
 
(xxx) The Company represents that neither the Company nor any of its subsidiaries (collectively, the “Company Entity”) or, to the knowledge of the Company, any director, executive officer, or affiliate of the Company Entity, is an individual or entity (“Person”) that is controlled by a Person that is currently the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Sanctions”); and the Company represents and covenants that the Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person (x) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions, or (y) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in this offering, whether as underwriter, advisor, investor or otherwise).
 

 
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(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 France and is duly qualified to conduct banking business in the State of New York through its New York Branch, 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 their 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).
 

 
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(vii) Payments of interest and principal in respect of the Deposits are not subject under the laws of France 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 Class C 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 Class C 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 face amount thereof, the aggregate face amount of Class C Certificates set forth opposite the name of such Underwriter in Schedule II.  Concurrently with the issuance of the Class C 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 Class C Certificates.
 
(b)           The Company is advised by the Representatives that the Underwriters propose to make a public offering of the Class C Certificates as set forth in the Prospectus as soon after this Agreement has been entered into as in the judgment of the Representatives is advisable.  The Company is further advised by the Representatives that the Class C Certificates are to be offered to the public initially at 100% of their face 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 Class C Certificates, including their respective undertakings to distribute the Class C Certificates, the Company will pay to CS 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 CS and the Company.  Such payment will be made on the Closing Date simultaneously with the issuance and sale of the Class C 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 Class C 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 December 27, 2012 or such other date, time and place as may be agreed upon by the Company and CS (such date and time of delivery and payment for the Class C Certificates (with attached Escrow Receipts) being herein
 

 
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called the “Closing Date”).  Delivery of the Class C Certificates (with attached Escrow Receipts) issued by the Original Trust shall be made to CS’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 Class C 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, provided, that a portion of such payment in the amount specified in Section 1A(a)(v) of the Note Purchase Agreement shall be paid to the accounts and in the manner specified by the Trustee.  The Class C Certificates (with attached Escrow Receipts) issued by the Original Trust shall be in the form of one or more fully registered global Class C 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 Class C Certificates (with attached Escrow Receipts) available for inspection and checking by the Representatives 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 CS, on its behalf and for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Class C Certificates (with attached Escrow Receipts) that it has agreed to purchase.  CS, individually and not as a representative, may (but shall not be obligated to) make payment of the purchase price for the Class C 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 Class C 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 the Representatives.
 
(c) On the Closing Date, the Underwriters shall have received an opinion of the Vice President and Deputy General Counsel of the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
 
(d) On the Closing Date, the Underwriters shall have received an opinion of Morris James LLP, counsel for Wilmington Trust, National Association, individually and as Trustee, Subordination Agent and Paying Agent, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
 

 
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(e) On the Closing Date, the Underwriters shall have received an opinion of Sullivan & Worcester LLP, counsel for the Escrow Agent, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
 
(f) On the Closing Date, the Underwriters shall have received an opinion of in-house counsel for the Depositary, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
 
(g) On the Closing Date, the Underwriters shall have received an opinion of Milbank, Tweed, Hadley & McCloy LLP, special New York counsel for the Depositary, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
 
(h) 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 Class C Certificates, the Registration Statement, the Time of Sale Prospectus, the Prospectus and other related matters as the Underwriters may reasonably require.
 
(i) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries considered as one enterprise that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to proceed with the completion of the public offering of the Class C Certificates on the terms and in the manner contemplated by the Time of Sale Prospectus.
 
(j) 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.
 
(k) 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 the Representatives, 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 &
 

 
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Young LLP will not be a date more than three business days prior to the Closing Date for purposes of this subsection.
 
(l) The Underwriters shall have received from Deloitte & Touche LLP, (i) a letter, dated no earlier than the date hereof, in form and substance satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of United audited by such accounting firm and 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 Deloitte & Touche LLP will not be a date more than three business days prior to the Closing Date for purposes of this subsection.
 
(m) 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 in Section 3(a)(62) of the Exchange 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).
 
(n) 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.
 
(o) At the Closing Date, each of the Operative Agreements (other than the PA Amendments and Indenture Amendments not required under the Note Purchase Agreement on the Closing Date, the Assignment and Assumption Agreement and the Financing Agreements to be executed and delivered after the Closing Date) 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.
 
(p) On the Closing Date, the Class C Certificates shall have received the ratings indicated in the free writing prospectus identified as Item 2 in Schedule IV hereto from the nationally recognized statistical rating organizations named therein.
 

 
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(q) On the Closing Date, the representations and warranties of the Company contained herein 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); and the statements of the Company and their respective officers made in any certificates delivered pursuant to this Agreement on the Closing Date shall be true and correct on and as of the Closing Date.
 
(r) 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 the Representatives 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 the consent of the Representatives, which consent will not be unreasonably withheld.  If, at any time after the public offering of the Class C 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 Class C 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 the Representatives will furnish to the Company) to which Class C Certificates may have been sold by the Representatives 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
 

 
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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 Class C 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 face amount of the Class C Certificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Class C Certificates) not otherwise specified in the preliminary prospectus or the Basic Prospectus included in the Registration Statement, the name of each Underwriter and the face amount of the Class C 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 Class C 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 the Representatives and the Company deem appropriate in connection with the offering of the Class C 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 Class C 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 the Representatives reasonably object.
 
(f) If the Time of Sale Prospectus or any “issuer free writing prospectus” is being used to solicit offers to buy the Class C 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 or any “issuer free
 

 
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writing 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 or any “issuer free writing 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 or any “issuer free writing 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 the Representatives will furnish to the Company) to which Certificates may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Time of Sale Prospectus or such “issuer free writing prospectus” so that the statements in the Time of Sale Prospectus or such “issuer free writing 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 or such “issuer free writing prospectus”, as so amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus or such “issuer free writing 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 Class C Certificates for offer and sale under the applicable securities or “blue sky” laws of such jurisdictions in the United States as the Representatives 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 (including any successor by merger of the Company) filed with the Commission; provided that (a) filing such documents with the Commission or (b) 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 Class C 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 Class C 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 the prior written consent of the Representatives, offer, sell or enter into any agreement to sell (as public debt securities registered under the Securities Act (other than the Class C 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
 

 
19

 

 
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 Class C Certificates, containing only information that describes the final terms of the Class C Certificates or the offering in a form consented to by the Representatives 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 Class C Certificates.
 
5.  Certain Covenants of the Underwriter.  Each Underwriter represents, warrants and covenants that:
 
(a) It is a QIB within the meaning of Rule 144A under the Securities Act;  that it has solicited, and will solicit, offers for the Class C Certificates only from, and has offered and will offer and sell the Class C Certificates only to, persons that it reasonably believes to be QIBs; and it has taken reasonable steps to ensure that the purchasers of the Class C Certificates are aware that the Class C Certificates may only be resold to QIBs and are aware of the transfer restrictions set forth in the Time of Sale Prospectus under the caption “Description of the Certificates - Transfer Restrictions for Class C Certificates.”
 
(b) It has not made and will not make any offer relating to the Class C 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 Class C 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 the affiliates of each Underwriter who have, or are alleged to have, participated in the distribution of the Class C Certificates as underwriters, 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 “issuer 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 the Representatives expressly for use in the Registration Statement, any preliminary prospectus, the
 

 
20

 

 
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 the Representatives 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
 

 
21

 

 
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 Class C 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 face amount of Class C 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
 

 
22

 

 
any amount in excess of the amount by which the total price at which the Class C 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 Class C 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 Class C Certificates hereunder and the aggregate face amount of the Class C Certificates that such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of the total face amount of the Class C Certificates, the Representatives may make arrangements satisfactory to the Company for the purchase of such Class C 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 Class C Certificates that such defaulting Underwriter or Underwriters agreed but failed to purchase.  If any Underwriter or Underwriters so default and the aggregate face amount of the Class C Certificates with respect to which such default or defaults occurs exceeds 10% of the total face amount of the Class C Certificates and arrangements satisfactory to the Representatives and the Company for purchase of such Class C 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 Class C Certificates.  If for any reason the purchase of the Class C 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 Class C Certificates by the Underwriters is not consummated for any reason other than solely because of the occurrence of the termination of the Agreement
 

 
23

 

 
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 Class C 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 the Representatives 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 or United Continental Holdings, Inc. shall have been suspended on any exchange or in any over-the-counter market, (iii) a general moratorium on commercial banking activities in New York shall have been declared by either Federal or New York State authorities, (iv) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving, the United States, or any change in financial markets or any calamity or crisis that, in each case, in the judgment of the Representatives, 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 Class C Certificates and (b) in the case of any of the events specified in clauses (a)(i) through (v), such event singly or together with any other such event makes it, in the judgment of the Representatives, impracticable to market the Class C 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 Class C Certificates for offer and sale under the applicable securities or “blue sky” laws of such jurisdictions in the United States as the Representatives 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 Class C Certificates by FINRA, (D) the determination of the eligibility of the Class C 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 Class C 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
 

 
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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 Class C 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 Class C Certificates and the Operative Agreements;
 
(v) expenses incurred in connection with the delivery of the Class C 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 and the Depositary and the reasonable fees and disbursements of their respective counsel;
 
(viii) fees charged by rating agencies for rating the Class C Certificates (including annual surveillance fees related to the Class C Certificates as long as they are outstanding);
 
(ix) all fees and expenses relating to appraisals of the Aircraft;
 
(x) all other reasonable out-of-pocket expenses incurred by the Underwriters in connection with the transactions contemplated by this Agreement (excluding the fees and disbursements of Milbank, Tweed, Hadley & McCloy LLP as counsel for the Underwriters, except as provided for in clause (xi));
 
(xi) the fees and disbursements of Milbank, Tweed, Hadley & McCloy LLP as counsel for the Underwriters in an agreed-upon amount); 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.
 

 
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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 Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, New York 10010, Attention:  LCD-IBD, facsimile number (212) 743-1106, c/o Morgan Stanley & Co. LLC, 1585 Broadway, New York, New York 10036, Attention: Equipment Finance Group, facsimile number (212) 761-1781 and c/o Goldman, Sachs & Co., 200 West Street, New York, New York 10282, Attention: Registration Department; and, if sent to the Company, shall be mailed, delivered or sent by facsimile transmission and confirmed to it at 77 W. Wacker Drive, Chicago, Illinois 60601, Attention:  Treasurer and General Counsel, facsimile number (312) 997-8333; 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.  The Representatives will act for the several Underwriters in connection with this purchase, and any action under this Agreement taken by the Representatives 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 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
 

 
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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 Class C 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 Class C 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.
 
 

 

 
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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.
 

 
 
Very truly yours,
   
 
CONTINENTAL AIRLINES, INC.
   
   
 
By:
/s/ Gerald Laderman
   
Name:
Gerald Laderman
   
Title:
Senior Vice President Finance and Treasurer
 

 
 

 
 

 
 

 
 

 
 
Underwriting Agreement Signature Page
 

 
 

 

The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written

CREDIT SUISSE SECURITIES (USA) LLC
MORGAN STANLEY & CO. LLC
GOLDMAN, SACHS & CO.
 
For themselves and on behalf of the several Underwriters listed in Schedule II hereto.
 
 

 
By:
CREDIT SUISSE SECURITIES (USA) LLC
   
   
 
By:
/s/ Sharon Harrison
   
Name:
Sharon Harrison
   
Title:
Director

 
By:
MORGAN STANLEY & CO. LLC
   
   
 
By:
/s/ Heidi Ho
   
Name:
Heidi Ho
   
Title:
Executive Director

 
By:
GOLDMAN, SACHS & CO.
   
   
 
By:
/s/ Michael Hickey
   
Name:
Michael Hickey
   
Title:
Vice President

 
 

 
 

 
 

 
 

 
 
Underwriting Agreement Signature Page
 
 

 

 
 

 


NATIXIS S.A.
New York Branch,
as Depositary
   
   
By:
/s/ Jocelyn Noel
 
Name:
Jocelyn Noel
 
Title:
Vice President

 

 
By:
/s/ Louis Douady
 
Name:
Louis Douady
 
Title:
Managing Director
 

 
 

 
 

 
 

 
 

 
 

 
 
Underwriting Agreement Signature Page
 

 
 

 

 
SCHEDULE I
 
 
Continental Airlines Class C Pass Through Certificates, Series 2012-3
 
Certificate Designation
Aggregate
Face
  Amount
 
Interest Rate
Final
Expected Distribution
Date
 
2012-3C-O
 
$425,000,000
 
6.125%
 
April 29, 2018
 

 
 

 

 
 

 

 
SCHEDULE II
 

 
Underwriters
2012-3C-O
Credit Suisse Securities (USA) LLC
$53,125,000
Morgan Stanley & Co. LLC
$53,125,000
Goldman, Sachs & Co.
$53,125,000
Citigroup Global Markets Inc.
$53,125,000
Deutsche Bank Securities Inc.
$53,125,000
Barclays Capital Inc.
$53,125,000
 Merrill Lynch, Pierce, Fenner & Smith
                      Incorporated
 
$53,125,000
J.P. Morgan Securities LLC
$53,125,000
 

 
 

 

 
 

 

 
SCHEDULE III

 
 
Underwriting commission
and other compensation:
$5,312,500
   
Closing date, time and location:
December 27, 2012
10:00 A.M.,
New York time
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, NY 10004
 



 

 
 

 

 
 

 

 
SCHEDULE IV

Free Writing Prospectuses
 
 
 
1. Free writing prospectus dated December 12, 2012 (pricing supplement) in the form attached hereto as Annex A.
 
2. Free writing prospectus in the form of the net roadshow investor presentation of the Company dated December 12, 2012.
 
 

 
 

 
 

 
 

 

 
 

 

 
ANNEX A
 
 Pricing Supplement
Dated December 12, 2012
Continental Airlines, Inc.
$425,000,000
2012-3 Pass Through Trust
Class C Pass Through Certificates, Series 2012-3
 
 
Pricing Supplement dated December 12, 2012 to the preliminary prospectus supplement dated December 12, 2012 (as supplemented, the “Preliminary Prospectus Supplement”) of Continental Airlines, Inc. (“Continental”).
 
The information in this Pricing Supplement supplements the Preliminary Prospectus Supplement and supersedes the information in the Preliminary Prospectus Supplement to the extent inconsistent with the information in the Preliminary Prospectus Supplement.
 
Unless otherwise indicated, terms used but not defined herein have the meanings assigned to such terms in the Preliminary Prospectus Supplement.

 
Securities:
    Class C Pass Through Certificates,
    Series 2012-3 (“Class C Certificates”)
Amount:
$425,000,000
CUSIP:
210795 QD5
ISIN:
US210795QD50
Coupon:
6.125%
Make-Whole Spread over Treasuries:
0.50%
Public Offering Price:
100.0%
Underwriting:
 
Credit Suisse Securities (USA) LLC
$53,125,000
Morgan Stanley & Co. LLC
$53,125,000
Goldman, Sachs & Co.
$53,125,000
Citigroup Global Markets Inc.
    $53,125,000
Deutsche Bank Securities Inc.
    $53,125,000
Barclays Capital Inc.
$53,125,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated
$53,125,000
J.P. Morgan Securities LLC
$53,125,000
Concession to Selling Group
Members:
0.50%
Discount to Broker/Dealers:
0.25%
Underwriting Commission:
    $5,312,500
Continental’s Transaction Expenses:
    $1,600,000
Underwriting Agreement:
    Dated December 12, 2012
Settlement:
    December 27, 2012 (T+10) closing date, the 10th business day following the date hereof
Transfer Restrictions:
The Class C Certificates will be subject to transfer restrictions. They may be sold only to qualified institutional buyers, as defined in Rule 144A under the Securities Act of 1933, as amended, for so long as they are outstanding.
Preliminary Prospectus Supplement:
    Continental has prepared a Preliminary Prospectus Supplement, dated December 12, 2012, which includes
    additional information regarding the Class C Certificates
 
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 Credit Suisse toll-free at 1-800-221-1037, Morgan Stanley toll-free at 1-866-718-1649 or Goldman Sachs toll-free at 1-866-471-2526.
 
 
e62158477ex4_1.htm
Exhibit 4.1
 
EXECUTION VERSION






TRUST SUPPLEMENT No. 2012-3C-O

Dated as of December 27, 2012


between

WILMINGTON TRUST, NATIONAL ASSOCIATION
as Trustee,


and


CONTINENTAL AIRLINES, INC.

to

PASS THROUGH TRUST AGREEMENT
Dated as of October 3, 2012


$425,000,000

Continental Airlines Pass Through Trust 2012-3C-O
6.125% Continental Airlines
Pass Through Certificates,
Series 2012-3C-O



 
 

 

TABLE OF CONTENTS

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-
Form of Certificate
-
DTC Letter of Representations
-
Form of Assignment and Assumption Agreement
 
-
Owned Aircraft
-
Eligible Aircraft and Scheduled Delivery Months
 

 
 


This Trust Supplement No. 2012-3C-O, dated as of December 27, 2012 (herein called the “Trust Supplement”), between Continental Airlines, Inc., a Delaware corporation (the “Company”), and Wilmington Trust, National Association (the “Trustee”), to the Pass Through Trust Agreement, dated as of October 3, 2012, 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 face 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, under the terms of two series of Continental Airlines pass through certificates previously issued and designated Series 2012-1 (the “Series 2012-1”) and Series 2012-2 (the “Series 2012-2” and, together with the Series 2012-1, the “Prior Series”), the Company is entitled to sell Series C Equipment Notes secured by aircraft financed under each Prior Series;

WHEREAS, the Company has purchased the 26 aircraft listed on Schedule I hereto (the “Owned Aircraft”) prior to the date of this Trust Supplement (the “Issuance Date”) utilizing the proceeds of the sale of secured equipment notes acquired by the pass through trustees under the Prior Series;

WHEREAS, the Company has obtained commitments from Boeing for the delivery of 14 Boeing 737-924ER aircraft and three Boeing 787-8 aircraft listed on Schedule II hereto (collectively, the “Eligible Aircraft”), and the Company expects to purchase on or after the Issuance Date each Boeing 737-924 aircraft and two of the three Boeing 787-8 aircraft included in the Eligible Aircraft relating to Series 2012-2 utilizing the proceeds of the sale of secured equipment notes to be acquired by the pass through trustees under the 2012-2 Note Purchase Agreement and of the Series C Equipment Notes purchased pursuant to the NPA (all such Eligible Aircraft to be financed, the “New Aircraft” and, together with the Owned Aircraft, the “Applicable Aircraft”);

WHEREAS, in the case of each Owned Aircraft, the Company has issued pursuant to an Indenture, on a recourse basis, Series A and Series B Equipment Notes, and will issue on the Issuance Date pursuant to such Indenture, on a recourse basis, Series C Equipment Notes;

WHEREAS, in the case of each New Aircraft, the Company will issue pursuant to an Indenture, on a recourse basis, Equipment Notes, including Series C Equipment Notes, 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 2012-3C-O (the “Applicable Trust”) for the benefit of the Applicable

 
 

 
 
2
 
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, to the extent not used to purchase Series C Equipment Notes on the Issuance Date, and have irrevocably instructed the Escrow Agent to withdraw and pay funds from such proceeds upon request and proper certification by the Trustee to purchase Series C 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 Series C 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 any Applicable Aircraft under the NPA, the Trustee on behalf of the Applicable Trust, using a portion of the proceeds of the sale of the Applicable Certificates, in the case of any Owned Aircraft financed on the Issuance Date, or using funds withdrawn under the Escrow Agreement, in the case of any Applicable Aircraft or Substitute Aircraft financed after the Issuance Date, shall purchase one or more Series C Equipment Notes with respect to such Aircraft having the same interest rate as the Applicable Certificates issued hereunder, and a final maturity date not later than April 11, 2018, in the case of Series C Equipment Notes relating to Series 2012-1, or the final Regular Distribution Date of the Applicable Certificates, in the case of Series C Equipment Notes relating to Series 2012-2, and shall hold such Series C 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;

 
 

 
3
 
NOW THEREFORE, in consideration of the premises herein, it is agreed between the Company and the Trustee as follows:
 
ARTICLE I
THE CERTIFICATES
 
Section 1.01.  The Certificates.  There is hereby created a series of Certificates to be issued under the Agreement to be distinguished and known as “Continental Airlines Pass Through Certificates, Series 2012-3C-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 face amount of the Applicable Certificates that shall be authenticated under the Agreement (except for Applicable Certificates authenticated and delivered under Sections 3.03, 3.05 and 3.06 of the Basic Agreement and Sections 8.03 and 8.04 of this Trust Supplement) is $425,000,000.

(b)           The Regular Distribution Dates with respect to any distribution of Scheduled Payments means April 29 and October 29 of each year, commencing on April 29, 2013, until distribution of all of the Scheduled Payments to be made under the Series C 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 Distribution, 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 have represented and warranted to and for the benefit of the Company that either (i) no assets of an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), a plan subject to Section 4975 of the Internal Revenue Code of
 
 
 

 

4
 
 
1986, as amended (the “Code”), or a governmental, church or foreign plan subject to a law that is similar to Title I of ERISA or Section 4975 of the Code (a “Similar Law Plan”) have been used to purchase or hold such Applicable Certificate or an interest therein or (ii) the purchase and holding of such Applicable Certificate or an interest therein either (a) in the case of assets of an employee benefit plan subject to Title I of ERISA or a plan subject to Section 4975 of the Code, are exempt from the prohibited transaction restrictions of ERISA and the Code pursuant to one or more prohibited transaction statutory or administrative exemptions or (b) in the case of assets of a Similar Law Plan, will not violate any similar state, local or foreign law.

(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 Applicable Trust 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 Agreements, the Deposit Agreement and the Escrow Agreement.

(h)           The Applicable Certificates are not entitled to the benefits of a liquidity facility.

(i)            The Responsible Party is the Company.

(j)            The date referred to in clause (i) of the definition of the term “PTC Event of Default” in the Basic Agreement is the Final Maturity Date.
 
(k)           The “particular sections of the Note Purchase Agreement”, for purposes of clause (3) of Section 7.07 of the Basic Agreement, are Section 8.1 of each Participation Agreement.
 
(l)            The Equipment Notes to be acquired and held in the Applicable Trust, and the related Aircraft and Note Documents, are described in the NPA.
 
 
ARTICLE II
DEFINITIONS
 
Section 2.01.  Definitions.  For all purposes of the Basic Agreement as supplemented by this Trust Supplement, the following capitalized terms have the following meanings (any term used herein which is defined in both this Trust Supplement and the Basic Agreement shall have the meaning assigned thereto in this Trust Supplement for purposes of the Basic Agreement as supplemented by this Trust Supplement):

2012-2 Note Purchase Agreement: Has the meaning specified in the NPA.


 
 

 
5

 
Agreement:  Has the meaning specified in the recitals hereto.

Aircraft:  Means each of the Applicable Aircraft (or Substitute Aircraft or any substitute aircraft, including engines therefor, owned by the Company and securing one or more Series C 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 New York, New York, Chicago, Illinois, or, so long as any Applicable Certificate is Outstanding, the city and state in which the Trustee, any Subordination Agent or any Loan Trustee maintains its Corporate Trust Office or receives and disburses funds.

Certificate:  Has the meaning specified in the applicable Intercreditor Agreement.

Certificate Buyout Event: Means, in the case of a Prior Series, 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
 
 
 

 
6
 
its obligations under all of the Indentures with respect to such Prior Series or, if it has entered into such agreements, has at any time thereafter failed to cure any default under any of the Indentures with respect to such Prior Series 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 subject to an Indenture with respect to such Prior Series.

Class:  Has the meaning specified in the applicable 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 applicable Intercreditor Agreement.

Controlling Party:  Has the meaning specified in the applicable 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, 2013 (provided that, if a labor strike occurs or continues at Boeing after the Prior Issuance Date and on or prior to such date referred to in this clause (a), such date on or following the Prior Issuance Date shall be extended by adding thereto a number of days that such strike continued in effect after the Prior Issuance Date, but not more than 60 days), and (b) the date on which Series C Equipment Notes issued with respect to all of the Applicable Aircraft (including any Substitute Aircraft in lieu of any Eligible Aircraft) have been purchased by the Applicable Trust in accordance with the NPA.

Deposit Agreement:  Means the Deposit Agreement dated as of December 27, 2012 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 Natixis S.A., a French société anonyme, acting through its New York Branch.

Deposits:  Has the meaning specified in the Deposit Agreement.

Distribution Date:  Means any Regular Distribution Date or Special Distribution Date as the context requires.

Eligible Aircraft:  Has the meaning specified in the recitals hereto.

 
 

 
 
7

 
Equipment Notes:  Means all of the equipment notes issued under the Indentures.

Escrow Agent:  Means, initially, U.S. Bank 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 December 27, 2012 relating to the Applicable Certificates, among the Escrow Agent, the Escrow Paying Agent, 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 Distribution:  Has the meaning specified in the Escrow Agreement.

Final Maturity Date:  Means April 29, 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 “Indenture” as defined in the Intercreditor Agreement for any Prior Series.

Intercreditor Agreement:  Means, for each Prior Series, the Intercreditor Agreement for such Prior Series as listed on Schedule III to the NPA, as amended by the Intercreditor Agreement Amendment applicable to such Prior Series, as further amended, supplemented or otherwise modified from time to time in accordance with its terms.

Intercreditor Agreement Amendment:  Means, for each Prior Series, the Amendment No. 1 to the Intercreditor Agreement for such Prior Series dated as of the Issuance Date among the Company, the Trustee and the subordination agent for such Prior Series, providing for, among other things, the Trustee to become a party to such Intercreditor Agreement.

Investors:  Means the Underwriters, together with all subsequent beneficial owners of the Applicable Certificates.


 
 

 
8
Issuance Date:  Has the meaning specified in the recitals hereto.

Make-Whole Amount:  Has the meaning specified in any Indenture.

New Aircraft: Has the meaning specified in the recitals hereto.

Note Documents:  Means the Series C Equipment Notes and, with respect to any such Series C Equipment Note, the Indenture and the Participation Agreement relating to such Series C Equipment Note.

Notice of Purchase Withdrawal:  Has the meaning specified in the Deposit Agreement.

NPA:  Means the Note Purchase Agreement dated as of December 27, 2012 among the Trustee, the Company, the Escrow Agent, the Escrow Paying Agent and the subordination agent under each of the Intercreditor Agreements, providing for, among other things, the purchase of Series C 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 any Refinancing Trust.
 
Other Trustees:  Means the trustees under the Other Agreements, if any, and any successor or other trustee appointed as provided therein.
 
Other Trusts:  Means a Refinancing Trust or Trusts, if any, created by the Other Agreements.

Owned Aircraft: Has the meaning specified in the recitals hereto.
 
Owned Aircraft Indenture: Has the meaning specified in the NPA.
 
PA Amendment: Has the meaning specified in the NPA.

Participation Agreement:  Has the meaning specified in the NPA.

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 (including Make-Whole Amount) 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 Series C Equipment Notes or payment with respect to other Trust Property and the distribution thereof to be made on that date.


 
 

 
 
9

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 Series C Equipment Notes or payment with respect to other Trust Property and the distribution thereof to be made on that date.

Prior Issuance Date: Has the meaning specified in the NPA.

Prior Series: Has the meaning specified in the recitals hereto.

 Prospectus Supplement:  Means the final Prospectus Supplement dated December 12, 2012 relating to the offering of the Applicable Certificates.

QIB:  Means a qualified institutional buyer as defined in Rule 144A.
 
Ratings Confirmation:  Has the meaning specified in the applicable Intercreditor Agreement.

Register:  Has the meaning specified in Section 8.03 of this Trust Supplement.
 
Registrar:  Has the meaning specified in Section 8.03 of this Trust Supplement.

Related Pass Through Trust Agreement:  Means the Basic Agreement as supplemented by the Trust Supplement No. 2012-3C-S dated as of the date hereof relating to the Continental Airlines Pass Through Trust 2012-3C-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 2012-3C-S, to be formed under the Related Pass Through Trust Agreement.

Related Trustee:  Means the trustee under the Related Pass Through Trust Agreement.

Restrictive Legend:  Has the meaning specified in Section 8.01 of this Trust Supplement.
 
Rule 144A:  Means Rule 144A under the Securities Act of 1933, as amended, and any successor rule thereto.

Scheduled Closing Date:  Has the meaning specified in the NPA.

 
 

 
 
10
 
Scheduled Payment: Means, with respect to any Series C Equipment Note, any payment of principal or interest on such Series C Equipment Note (other than any such payment which is not in fact received by the Trustee or the applicable Subordination Agent within five days of the date on which such payment is scheduled to be made), which payment in any such case represents the installment of principal on such Series C Equipment Note at the stated maturity of such installment, the payment of regularly scheduled interest accrued on the unpaid principal amount of such Series C Equipment Note, or both; provided, however, that any payment of principal, premium (including Make-Whole Amount), if any, or interest resulting from the redemption or purchase of any Series C Equipment Note shall not constitute a Scheduled Payment.

Senior Certificates:  Has the meaning specified in Section 4.01(a) of this Trust Supplement.

Senior Trust Agreements: Has the meaning specified in Section 4.01(a) of this Trust Supplement.

Series 2012-1:  Has the meaning specified in the recitals hereto.

Series 2012-2:  Has the meaning specified in the recitals hereto.

Series C Equipment Notes:  Has the meaning specified in the NPA.

Special Payment:  Means any payment (other than a Scheduled Payment) in respect of, or any proceeds of, any Equipment Note or Collateral (as defined in each Indenture).

Subordination Agent: Has the meaning specified in the applicable Intercreditor Agreement.

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:  Means a “Triggering Event” as defined in the Intercreditor Agreement for Series 2012-2.

Trust Property:  Means (i) subject to the applicable Intercreditor Agreement, the Series C 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 applicable Intercreditor Agreement, any proceeds from the sale by the Trustee pursuant to Article VI of the Basic Agreement of any Series C Equipment Note and (iii) all rights of the Applicable Trust and the Trustee, on behalf of the Applicable Trust, under the Intercreditor Agreements, the Escrow Agreement and the NPA,

 
 

 
 
11

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 Agreements, provided that rights with respect to the Deposits or under the Escrow Agreement, except for the right to direct withdrawals for the purchase of Series C 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, Credit Suisse Securities (USA) LLC, Morgan Stanley & Co. LLC, Goldman, Sachs & Co., Citigroup Global Markets Inc., Deutsche Bank Securities Inc., Barclays Capital Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan Securities LLC.
 
Underwriting Agreement:  Means the Underwriting Agreement dated December 12, 2012 among the Underwriters, the Company and the Depositary, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.
 
ARTICLE III
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 (x) include a statement substantially as follows: “Holders of Class C Certificates are reminded that Class C Certificates may be sold only to qualified institutional buyers, as defined in Rule 144A under the Securities Act of 1933, as amended, for so long as they are outstanding” and (y) set forth (per $1,000 face amount Applicable Certificate as to (ii), (iii), (iv) and (v) below) the following information:

(i)           the aggregate amount of funds distributed on such Distribution Date under the Agreement and under the Escrow Agreement, indicating the amount allocable to each source;

(ii)           the amount of such distribution under the Agreement allocable to principal and the amount allocable to premium (including Make-Whole Amount), if any;
 
(iii)          the amount of such distribution under the Agreement allocable to interest;

 
 

 
12

(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)           Promptly following the date of any early redemption of, or any default in the payment of principal or interest in respect of, any of the Series C 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 such date and (y) the related Pool Factors for such Regular Distribution Dates.  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.
 
(d)           The Trustee shall provide promptly to the Applicable Certificateholders all material non-confidential information received by the Trustee from the Company.
 

 
 

 
 
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(e)           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 an Intercreditor Agreement applicable to a Prior Series, 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 applicable Intercreditor Agreement applicable to such Prior Series) 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 other Special Payments, such notice shall be mailed as soon as practicable after the Trustee has confirmed that it has received funds for such Special Payment, stating the Special Distribution Date for such Special Payment which shall occur not less than 15 days after the date of such notice and as soon as practicable thereafter.  Notices 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),

 
 


 
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(ii)           the amount of the Special Payment for each $1,000 face amount Applicable Certificate and the amount thereof constituting principal, premium (including Make-Whole Amount), 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 (including Make-Whole Amount), if any, payable upon the redemption or purchase of a Series C 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 (including Make-Whole Amount) received will also be distributed.
 
If any redemption of the Series C 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 Loan Trustees, the Owner Trustees or the Owner Participants” in the second sentence thereof and adding the words “or Loan Trustees”.
 
ARTICLE IV
DEFAULT
 
Section 4.01.  Purchase Rights of Certificateholders.  (a) At any time after the occurrence and during the continuation of a Certificate Buyout Event under a Prior Series, each Applicable Certificateholder (other than the Company or any of its Affiliates) shall have the right (which shall not expire (i) in the case of the Series 2012-1, upon any purchase of the Class A Certificates issued under such Prior Series pursuant to the Class B Trust Agreement with respect to such Prior Series and (ii) in the case of the Series 2012-2, upon any purchase of Class A Certificates issued under such Prior Series pursuant to the Class B Trust Agreement with respect to such Prior Series) to purchase, for the purchase prices set forth (I) in the case of the Series 2012-1, the Class A Trust Agreement and the Class B Trust Agreement with respect to such Prior Series or (II) in the case of the Series 2012-2, the Class A Trust Agreement and the Class B Trust Agreement with respect to such Prior Series (in each case with respect to such Prior Series, the “Senior Trust Agreements”), respectively, all, but not less than all (X) in the case of the Series 2012-1, of the Class A Certificates and the Class B Certificates issued under such Prior Series or (Y) in the case of the Series 2012-2, of the Class A Certificates and the Class B Certificates issued under such Prior Series (in each case with respect to such Prior Series, the “Senior Certificates”) upon 15 days’ written notice to the trustees under each of the Senior Trust

 
 

 

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Agreements with respect to such Prior Series and each other Applicable Certificateholder, on the third Business Day next following the expiry of such 15-day notice period, provided that (A) if prior to the end of such 15-day period any other Applicable Certificateholder (other than the Company or any of its Affiliates) notifies such purchasing Applicable Certificateholder that such other Applicable Certificateholder wants to participate in such purchase, then such other Applicable Certificateholder (other than the Company or any of its Affiliates) may join with the purchasing Applicable Certificateholder to purchase all, but not less than all, of the Senior Certificates with respect to such Prior Series pro rata based on the Fractional Undivided Interest in the Applicable Trust held by each such Applicable Certificateholder and (B) if prior to the end of such 15-day period any other Applicable Certificateholder fails to notify the purchasing Applicable Certificateholder of such other Applicable Certificateholder’s desire to participate in such a purchase, then such other Applicable Certificateholder shall lose its right to purchase the Senior Certificates with respect to such Prior Series pursuant to this Section 4.01(a).

As used in this Section 4.01 and elsewhere in this Trust Supplement with respect to any Prior Series, the terms “Class A Certificate”, “Class A Trust Agreement”, “Class B Certificate”, “Class B Trust Agreement”, “Refinancing Certificates”, “Refinancing Equipment Notes” and “Refinancing Trust” shall have the respective meanings assigned to such terms in the Intercreditor Agreement for such Prior Series.

(b)           This Section 4.01 supersedes and replaces Section 6.01(b) of the Basic Agreement, with respect to the Applicable Trust.

Section 4.02.  Amendment of Section 6.05 of the Basic Agreement.  Section 6.05 of the Basic Agreement shall be amended, with respect to the Applicable Trust, by deleting the phrase “and thereby annul any Direction given by such Certificateholders or the Trustee to such Loan Trustee with respect thereto,” set forth in the first sentence thereof.
 
ARTICLE V
THE TRUSTEE
 
Section 5.01.  Delivery of Documents; Delivery Dates.  (a)  The Trustee is hereby directed (i) to execute and deliver the Intercreditor Agreement Amendments, the PA Amendments, 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 and under the Intercreditor Agreements and the Participation Agreements.  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 Series C 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

 
 

 
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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 Series C 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 Series C 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 Series C 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 Series C Equipment Notes shall equal the principal amount of such Series C Equipment Notes.  Amounts withdrawn from such Deposit or Deposits in excess of the purchase price of the Series C Equipment Notes or to the extent not applied on the Applicable Closing Date to the purchase price of the Series C 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.


 
 

 
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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 Series C 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, each Intercreditor Agreement Amendment, each PA Amendment, 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 Amendments, the Escrow Agreement, the NPA and the Note Documents to which it is or is to become a party and to perform the Intercreditor Agreements and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Supplement, the Intercreditor Agreement Amendments, the Escrow Agreement, the NPA and the Note Documents to which it is or is to become a party and the performance by it of the Intercreditor Agreements;

(b)           the execution, delivery and performance by the Trustee of this Trust Supplement, the Intercreditor Agreement Amendments, the Escrow Agreement, the NPA and the Note Documents to which it is or is to become a party and the performance by the Trustee of the Intercreditor Agreements (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

 
 

 
 
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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 Amendments, the Escrow Agreement, the NPA and the Note Documents to which it is or is to become a party and the performance by the Trustee of the Intercreditor Agreements 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 Agreements, the Intercreditor Agreement Amendments, 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 Agreements or the NPA.
 
ARTICLE VI
ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS
 
Section 6.01.  Amendment of Section 5.02 of the Basic Agreement.  Section 5.02 of the Basic Agreement shall be amended, with respect to the Applicable Trust, by (i) replacing the phrase “of the Note Documents and of this Agreement” set forth in paragraph (b) thereof with the phrase “of the Note Documents, of the NPA and of this Agreement” and (ii) replacing the phrase “of this Agreement and any Note Document” set forth in the last paragraph of Section 5.02 with the phrase “of this Agreement, the NPA and any Note Document”.

Section 6.02.  Supplemental Agreements Without Consent of Applicable Certificateholders.  Without limitation of Section 9.01 of the Basic Agreement, under the terms of, and subject to the limitations contained in, Section 9.01 of the Basic Agreement, the

 
 


 
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Company may (but will not be required to), and the Trustee (subject to Section 9.03 of the Basic Agreement) shall, at the Company’s request, at any time and from time to time:

(i) enter into one or more agreements supplemental to the Escrow Agreement, the NPA or the Deposit Agreement, for any of the purposes set forth in clauses (1) through (9) of such Section 9.01, and (without limitation of the foregoing or Section 9.01 of the Basic Agreement) (a) clauses (2) and (3) of such Section 9.01 shall also be deemed to include the Company’s obligations under (in the case of clause (2)), and the Company’s rights and powers conferred by (in the case of clause (3)), the NPA, and (b) references in clauses (4), (6) and (7) of such Section 9.01 to “any Intercreditor Agreement” shall also be deemed to refer to “any Intercreditor Agreement, the Escrow Agreement, the NPA or the Deposit Agreement”, and

(ii)           enter into one or more agreements supplemental to the Agreement to provide for the formation of one or more Refinancing Trusts, the issuance of Refinancing Certificates, the purchase by any Refinancing Trust of applicable Refinancing Equipment Notes and other matters incidental thereto or as otherwise contemplated by Section 2.01(b) of the Basic Agreement, subject to the provisions of Section 4(a)(vi) of the NPA and Section 9.1(c) of the applicable Intercreditor Agreement.

Section 6.03.  Supplemental Agreements with Consent of Applicable Certificateholders.  Without limitation of Section 9.02 of the Basic Agreement, the provisions of Section 9.02 of the Basic Agreement shall apply to agreements or amendments for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Escrow Agreement, the Deposit Agreement or the NPA or modifying in any manner the rights and obligations of the Applicable Certificateholders under the Escrow Agreement, the Deposit Agreement or the NPA; provided that (a) 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, (b) the reference in clause (2) of such Section 9.02 to “this Agreement” shall also be deemed to refer to “this Agreement and the related Intercreditor Agreement” and (c) the reference in clause (3) of such Section 9.02 to “the Intercreditor Agreement” shall be deemed to refer to “any Intercreditor Agreement”.

Section 6.04.  Consent of Holders of Certificates Issued under Other Trusts.  Notwithstanding any provision in Section 6.02 or Section 6.03 of this Trust Supplement to the contrary, no amendment or modification of Section 4.01 of this Trust Supplement shall be effective unless the trustee for each Class of Certificates affected by such amendment or modification shall have consented thereto.

 
ARTICLE VII
TERMINATION OF TRUST
 
Section 7.01.  Termination of the Applicable Trust.  (a)  The respective obligations and responsibilities of the Company and the Trustee with respect to the Applicable

 
 

 
 
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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, 2013 or, if later, the fifth Business Day following the Delivery Period Termination Date and (ii) the fifth Business Day following the date on which a Triggering Event occurs (such date, the “Transfer Date”), or, if later, the date on which all of the conditions set forth in the immediately following sentence have been satisfied, the Trustee is hereby directed (subject only to the immediately following sentence) to, and the Company shall direct the institution that will serve as the Related Trustee under the Related Pass Through Trust Agreement to, execute and deliver the Assignment and Assumption Agreement, pursuant to which the Trustee shall assign, transfer and deliver all of the Trustee’s right, title and interest to the Trust Property to the Related Trustee under the Related Pass Through Trust Agreement.  The Trustee and the Related Trustee shall execute and deliver the Assignment and Assumption Agreement upon the satisfaction of the following conditions:

(i)           The Trustee, the Related Trustee and each of the Rating Agencies then rating the Applicable Certificates shall have received an Officer’s Certificate and an Opinion of Counsel dated the date of the Assignment and Assumption Agreement and each satisfying the requirements of Section 1.02 of the Basic Agreement, which Opinion of Counsel shall be substantially to the effect set forth below and may be relied upon by the Beneficiaries (as defined in the Assignment and Assumption Agreement):

(I)           Upon the execution and delivery thereof by the parties thereto in accordance with the terms of the Agreement and the Related Pass Through Trust Agreement, the Assignment and Assumption Agreement will constitute the valid and binding obligation of each of the parties thereto enforceable against each such party in accordance with its terms;

(II)           Upon the execution and delivery of the Assignment and Assumption Agreement in accordance with the terms of the Agreement and the Related Pass Through Trust Agreement, each of the Applicable Certificates then Outstanding will be entitled to the benefits of the Related Pass Through Trust Agreement;

(III)           The Related Trust is not required to be registered as an investment company under the Investment Company Act of 1940, as amended;

(IV)           The Related Pass Through Trust Agreement constitutes the valid and binding obligation of the Company enforceable against the Company in accordance with its terms; and


 
 

 
 
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(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, if applicable to such Related Trustee.
 
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(a), 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

 
 

 
 
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Applicable Certificateholders to surrender their Applicable Certificates for cancellation and receive the final distribution with respect thereto.  No additional interest shall accrue on the Applicable Certificates after the Distribution Date specified in the first written notice.  In the event that any money held by the Trustee for the payment of distributions on the Applicable Certificates shall remain unclaimed for two years (or such lesser time as the Trustee shall be satisfied, after sixty days’ notice from the Company, is one month prior to the escheat period provided under applicable law) after the final distribution date with respect thereto, the Trustee shall pay to each Loan Trustee the appropriate amount of money relating to such Loan Trustee and shall give written notice thereof to the Company.

(b)    The provisions of this Section 7.01 supersede and replace the provisions of Section 11.01 of the Basic Agreement in its entirety, with respect to the Applicable Trust.
 
ARTICLE VIII
TRANSFER OF THE APPLICABLE CERTIFICATES
 
Section 8.01.  Restrictive Legends.  All Applicable Certificates issued pursuant to the Agreement shall bear a legend to the following effect (the “Restrictive Legend”):
 
THIS CERTIFICATE IS SUBJECT TO TRANSFER RESTRICTIONS. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933, AS AMENDED); (2) AGREES THAT, FOR SO LONG AS THIS CERTIFICATE IS OUTSTANDING, IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT TO A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933, AS AMENDED); AND (3) AGREES THAT IF IT SHOULD RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE IT WILL DELIVER TO EACH PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS CERTIFICATE, THE TRANSFEREE MUST COMPLETE THE FORM ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT SUCH FORM TO THE TRUSTEE. TRUST SUPPLEMENT NO. 2012-3C-O TO THE PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE REGISTRAR TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
 
Section 8.02.  Amendment of Section 3.04 of the Basic Agreement.  Sections 8.03 and 8.04 of this Trust Supplement supersede and replace Section 3.04 of the Basic Agreement, with respect to the Applicable Trust.
 
Section 8.03.  Transfer and Exchange.  The Trustee shall cause to be kept at the office or agency to be maintained by it in accordance with the provisions of Section 7.12 of the Basic Agreement a register (the “Register”) of the Applicable Certificates in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of

 
 


 
23

such Applicable Certificates and of transfers and exchanges of such Applicable Certificates as herein provided.  The Trustee shall initially be the registrar (the “Registrar”) for the purpose of registering such Applicable Certificates and transfers and exchanges of such Applicable Certificates as herein provided.
 
All Applicable Certificates issued upon any registration of transfer or exchange of Applicable Certificates shall be valid obligations of the Applicable Trust, evidencing the same interest therein, and entitled to the same benefits under the Agreement, as the Applicable Certificates surrendered upon such registration of transfer or exchange.
 
Upon surrender for registration of transfer of any Applicable Certificate at the Corporate Trust Office or such other office or agency with the form of transfer notice thereon duly completed and executed, and otherwise complying with the terms of the Agreement, including providing evidence of compliance with any restrictions on transfer, in form satisfactory to the Trustee and the Registrar, the Trustee shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Applicable Certificates of like series, in authorized denominations of a like aggregate Fractional Undivided Interest.  No such transfer shall be effected until, and such transferee shall succeed to the rights of an Applicable Certificateholder only upon, final acceptance and registration of the transfer by the Registrar in the Register.  Prior to the registration of any transfer by an Applicable Certificateholder as provided herein, the Trustee shall treat the person in whose name the Applicable Certificate is registered as the owner thereof for all purposes, and the Trustee shall not be affected by notice to the contrary.  Furthermore, DTC shall, by acceptance of an Applicable Certificate, agree that transfers of beneficial interests in such Applicable Certificate may be effected only through a book-entry system maintained by DTC (or its agent) and that ownership of a beneficial interest in an Applicable Certificate shall be required to be reflected in a book-entry.  Whenever any Applicable Certificates are so surrendered for exchange, the Trustee shall execute, authenticate and deliver the Applicable Certificates that the Applicable Certificateholder making the exchange is entitled to receive.  Every Applicable Certificate presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Trustee and the Registrar duly executed by the Applicable Certificateholder thereof or its attorney duly authorized in writing.
 
The Registrar shall not register the transfer or exchange of any Applicable Certificate in the name of any Person unless and until evidence satisfactory to the Company and the Trustee that the conditions to any such transfer or exchange set forth in Section 8.04 shall have been satisfied is submitted to them.  Such conditions shall be deemed satisfied with respect to a transfer if the transferor and transferee duly execute and deliver to the Trustee the transfer notice in the form attached to the Applicable Certificate, unless the Company or the Trustee has a reasonable basis for requesting additional evidence.
 
To permit registrations of transfers and exchanges in accordance with the terms, conditions and restrictions hereof, the Trustee shall execute and authenticate Applicable Certificates at the Registrar’s request.  No service charge shall be made to an Applicable Certificateholder for any registration of transfer or exchange of Applicable Certificates, but the Trustee shall require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of Applicable Certificates.  All
 

 
 

 
 
24

Applicable Certificates surrendered for registration of transfer or exchange shall be cancelled and subsequently destroyed by the Trustee.
 
Section 8.04.  Special Transfer Provisions.
 
(a)           Transfers Limited to QIBs.  If an Applicable Certificate is to be transferred, the Registrar shall register the transfer only if such transfer is being made to a proposed transferee who has provided the transfer notice attached to the form of Applicable Certificate stating, or has otherwise advised the Trustee and the Registrar in writing, that it is purchasing the Applicable Certificate for its own account or an account with respect to which it exercises sole investment discretion and that it, or the Person on whose behalf it is acting with respect to, any such account is a QIB within the meaning of Rule 144A.
 
(b)           Restrictive Legend.  Upon the transfer, exchange or replacement of Applicable Certificates, the Registrar shall deliver only Applicable Certificates that bear the Restrictive Legend.
 
(c)           General.  By acceptance of any Applicable Certificate, each Holder of such Applicable Certificate will be deemed to:
 
(i)             Represent that it is accepting such Applicable Certificate for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a QIB;
 
(ii)            Agree that any sale or other transfer by it of any Applicable Certificate will only be made to a QIB;
 
(iii)           Agree that it will, and that it will inform each subsequent transferee that such transferee will be required to, deliver to each person to whom it transfers Applicable Certificates notice of these restrictions on transfer of the Applicable Certificates;
 
(iv)           Agree that no registration of the transfer of an Applicable Certificate will be made unless the transferee completes and submits to the Trustee the form included on the reverse of the Applicable Certificate in which it states that it is purchasing the Applicable Certificate for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a QIB;
 
(v)            Understand that the Applicable Certificates will bear a legend substantially to the effect of the Restrictive Legend;
 
(vi)           Acknowledge that the Company, the Trustee, the Underwriters and others will rely on the truth and accuracy of the foregoing acknowledgments, representations, warranties and agreements and agree that, if any of the acknowledgments, representations, warranties and agreements deemed to have been made by its purchase of the Applicable Certificates is no longer accurate, it shall promptly notify the Company, the Trustee and the Underwriters.  If it is acquiring any Applicable Certificates as a fiduciary or agent of one or more investor accounts, it
 

 
 

 
 
25

represents that it has sole investment discretion with respect to each such investor account and that it has full power to make the foregoing acknowledgments, representations and agreements on behalf of each such investor account;
 
(vii)           Acknowledge that the foregoing restrictions apply to holders of beneficial interests in the Applicable Certificates as well as to registered holders of Applicable Certificates; and
 
(viii)          Acknowledge that the Trustee will not be required to accept for registration of transfer any Applicable Certificate unless evidence satisfactory to the Company and the Trustee that the restrictions on transfer set forth herein have been complied with is submitted to them.
 
Until such time as no Applicable Certificates remain Outstanding, the Registrar shall retain copies of all letters, notices and other written communications received pursuant to this Section 8.04.  The Trustee, if not the Registrar at such time, shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar.
 
ARTICLE IX
MISCELLANEOUS PROVISIONS
 
Section 9.01.  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 9.02.  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 9.02 SUPERSEDES AND REPLACES SECTION 12.05 OF THE BASIC AGREEMENT, WITH RESPECT TO THE APPLICABLE TRUST.

Section 9.03.  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 9.04.  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

 
 

 
 
26

purposes.  The powers granted and obligations undertaken pursuant to the Agreement shall be so construed so as to further such intent.

 
 

 
 
27

IN WITNESS WHEREOF, the Company and the Trustee have caused this Trust Supplement to be duly executed by their respective officers thereto duly authorized, as of the day and year first written above.
 
  CONTINENTAL AIRLINES, INC.  
       
       
 
By:
/s/ Gerald Laderman  
    Name: Gerald Laderman   
    Title: Senior Vice President Finance and Treasurer  
       
 
 
 
WILMINGTON TRUST, NATIONAL
ASSOCIATION,
    as Trustee
 
       
       
 
By:
/s/ Mark H. Brzoska  
    Name: Mark H. Brzoska   
    Title: Banking Officer  
       
 
[Trust Supplement No. 2012-3C-O Signature Page]

 
 


EXHIBIT A

FORM OF CERTIFICATE

Certificate
No.       

 
[Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch the registered owner hereof, Cede & Co., has an interest herein.]*

THIS CERTIFICATE IS SUBJECT TO TRANSFER RESTRICTIONS. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT); (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT TO A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT); AND (3) AGREES THAT IF IT SHOULD RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE IT WILL DELIVER TO EACH PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.  IN CONNECTION WITH ANY TRANSFER OF THIS CERTIFICATE, THE TRANSFEREE MUST COMPLETE THE FORM ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT SUCH FORM TO THE TRUSTEE.  TRUST SUPPLEMENT NO. 2012-3C-O TO THE PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE REGISTRAR TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
 
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 (1) NO ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL, CHURCH OR FOREIGN PLAN SUBJECT TO A LAW THAT IS SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (A “SIMILAR LAW PLAN”) HAVE BEEN USED TO PURCHASE OR HOLD THIS CERTIFICATE OR AN


*           This legend to appear on Book-Entry Certificates to be deposited with the Depository Trust Company.

 
 

 
 
A-2

INTEREST HEREIN OR (2) THE PURCHASE AND HOLDING OF THIS CERTIFICATE OR AN INTEREST HEREIN EITHER (A) IN THE CASE OF ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, ARE EXEMPT FROM THE PROHIBITED TRANSACTION RESTRICTIONS OF ERISA AND THE CODE PURSUANT TO ONE OR MORE PROHIBITED TRANSACTION STATUTORY OR ADMINISTRATIVE EXEMPTIONS OR (B) IN THE CASE OF ASSETS OF A SIMILAR LAW PLAN, WILL NOT VIOLATE ANY SIMILAR STATE, LOCAL OR FOREIGN LAW.

CONTINENTAL AIRLINES PASS THROUGH TRUST 2012-3C-O

Continental Airlines Pass Through Certificate, Series 2012-3C-O
Issuance Date:  December 27, 2012

Final Maturity Date:  April 29, 2018

Evidencing A Fractional Undivided Interest In The Continental Airlines Pass Through Trust 2012-3C-O, The Property Of Which Shall Include Certain Equipment Notes Each Secured By An Aircraft Owned By Continental Airlines, Inc.


$[_____________] Fractional Undivided Interest
representing 0.0002352941% 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 2012-3C-O (the “Trust”) created by Wilmington Trust, National Association, as trustee (the “Trustee”), pursuant to a Pass Through Trust Agreement, dated as of October 3, 2012 (the “Basic Agreement”), between the Trustee and Continental Airlines, Inc., a Delaware corporation (the “Company”), as supplemented by Trust Supplement No. 2012-3C-O thereto, dated as of December 27, 2012 (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 2012-3C-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 Agreements.  The property of the Trust includes certain Series C Equipment Notes and all rights of the Trust to receive payments under the Intercreditor Agreements (the “Trust Property”).  Each issue of the Series C Equipment Notes is secured by, among other things, a security interest in an Aircraft owned by the Company.


 
 

 
 
A-3

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 Agreements, from funds then available to the Trustee, there will be distributed on April 29 and October 29 of each year (a “Regular Distribution Date”) commencing April 29, 2013, 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 Series C 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 Agreements, in the event that Special Payments on the Series C 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 Series C Equipment Notes, the receipt of which has been confirmed by the Trustee, equal to the product of the percentage interest in the Trust evidenced by this Certificate and an amount equal to the sum of such Special Payments so received.  If a Regular Distribution Date or Special Distribution Date is not a Business Day, distribution shall be made on the immediately following Business Day with the same force and effect as if made on such Regular Distribution Date or Special Distribution Date and no interest shall accrue during the intervening period.  The Trustee shall mail notice of each Special Payment and the Special Distribution Date therefor to the Certificateholder of this Certificate.

Distributions on this Certificate will be made by the Trustee by check mailed to the Person entitled thereto, without presentation or surrender of this Certificate or the making of any notation hereon, except that with respect to Certificates registered on the Record Date in the name of a Clearing Agency (or its nominee) such distribution shall be made by wire transfer.  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

 
 

 
A-4

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 denominations of $1,000 Fractional Undivided Interest and integral multiples thereof, except that

 
 

 
A-5

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) no assets of an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), a plan subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or a governmental, church or foreign plan subject to a law that is similar to Title I of ERISA or Section 4975 of the Code (a “Similar Law Plan”) have 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 either (a) in the case of assets of an employee benefit plan subject to Title I of ERISA or a plan subject to Section 4975 of the Code, are exempt from the prohibited transaction restrictions of ERISA and the Code pursuant to one or more prohibited transaction statutory or administrative exemptions or (b) in the case of assets of a Similar Law Plan, will not violate any similar state, local or foreign law.

By acceptance of this Certificate, each Certificateholder will be deemed to:
 
(i)           Represent that it is accepting this Certificate for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a QIB;
 
(ii)           Agree that any sale or other transfer by it of this Certificate will only be made to a QIB;
 

 
 

 
A-6

(iii)           Agree that it will, and that it will inform each subsequent transferee that such transferee will be required to, deliver to each person to whom it transfers this Certificate notice of these restrictions on transfer of this Certificate;
 
(iv)           Agree that no registration of the transfer of a Certificate will be made unless the transferee completes and submits to the Trustee the form included on the reverse of this Certificate in which it states that it is purchasing this Certificate for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a QIB;
 
(v)           Understand that this Certificate will bear a legend substantially to the effect of the Restrictive Legend;
 
(vi)           Acknowledge that the Company, the Trustee, the Underwriters and others will rely on the truth and accuracy of the foregoing acknowledgments, representations, warranties and agreements and agree that, if any of the acknowledgments, representations, warranties and agreements deemed to have been made by its purchase of this Certificate is no longer accurate, it shall promptly notify the Company, the Trustee and the Underwriters.  If it is acquiring this Certificate as a fiduciary or agent of one or more investor accounts, it represents that it has sole investment discretion with respect to each such investor account and that it has full power to make the foregoing acknowledgments, representations and agreements on behalf of each such investor account;
 
(vii)           Acknowledge that the foregoing restrictions apply to holders of beneficial interests in this Certificate as well as to registered holders of this Certificate; and
 
(viii)           Acknowledge that the Trustee will not be required to accept for registration of transfer this Certificate unless evidence satisfactory to the Company and the Trustee that the restrictions on transfer set forth herein have been complied with is submitted to them.

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.

 
 

 
 
A-7

IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
 
 
 
CONTINENTAL AIRLINES PASS THROUGH
TRUST 2012-3C-O
 
       
       
 
By:
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee
 
       
 
 
By:
   
    Name:    
    Title:  
       
 


 
 


FORM OF THE TRUSTEE’S CERTIFICATE OF AUTHENTICATION


This is one of the Certificates referred to in the within-mentioned Agreement.
 
 
 
WILMINGTON TRUST, NATIONAL
ASSOCIATION,
    as Trustee
 
       
       
 
By:
   
    Name:  
    Title:  
       
             

 
 


TRANSFER NOTICE
 
FORM OF TRANSFER NOTICE
 
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto
 
Insert Taxpayer Identification No.
 
_______________________
 
_______________________
 
please print or typewrite name and address including zip code of assignee
 
_______________________
 
the within Certificate and all rights thereunder, hereby irrevocably constituting and appointing
 
_______________________
 
attorney to transfer said Certificate on the books of the Registrar with full power of substitution in the premises.
 
_______________________

In connection with any transfer of this Certificate, the undersigned confirms:
 
The Registrar shall not be obligated to register this Certificate in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 8.04 of the Trust Supplement shall have been satisfied.
 
Date:  [__________, ___]
[Name of Transferor]
 
NOTE:  The signature must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever.
Signature Guarantee:  _____________________

TO BE COMPLETED BY PURCHASER
 
The undersigned represents and warrants that it is purchasing this Certificate for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended.
 

 
 

 
 
10

In addition, the undersigned has reviewed this Certificate and makes the representations, agreements, understandings and acknowledgments deemed made by a Person acquiring or accepting this Certificate as set forth therein.
 
Date:  [______________]
 
 
 
NOTE:  To be executed by an executive officer.

 
 


EXHIBIT B


[DTC Letter of Representations]

 
 


EXHIBIT C


FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
Continental Airlines Pass Through Trust 2012-3C-O

ASSIGNMENT AND ASSUMPTION AGREEMENT (2012-3C-O), dated ________ __, ____ (the “Assignment Agreement”), between Wilmington Trust, National Association, a national banking association (“WTNA”), not in its individual capacity except as expressly provided herein, but solely as trustee under the Pass Through Trust Agreement dated as of October 3, 2012 (as amended or modified from time to time, the “Basic Agreement”), as supplemented by the Trust Supplement No. 2012-3C-O dated as of December 27, 2012 (the “Trust Supplement” and together with the Basic Agreement, the “Agreement”) in respect of the Continental Airlines Pass Through Trust 2012-3C-O (the “Assignor”), and Wilmington Trust, National Association, a national banking association, 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. 2012-3C-S dated as of December 27, 2012 (the “New Supplement”, and, together with the Basic Agreement, the “New Agreement”) in respect of the Continental Airlines Pass Through Trust 2012-3C-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.


 
 

 
 
C-2

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 United States and has the full trust power, authority and legal right under the laws of the United States and of the state of the United States in which it is located

 
 

 
 
C-3

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.

 
 

 
 
C-4

IN WITNESS WHEREOF, the parties hereto, through their respective officers thereunto duly authorized, have duly executed this Assignment Agreement as of the day and year first above written.
 
  ASSIGNOR:  
       
 
 
WILMINGTON TRUST, NATIONAL
ASSOCIATION, 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
2012-3C-O
 
       
  By:     
    Name:  
    Title:  
       
 
  ASSIGNEE:  
       
   
WILMINGTON TRUST, NATIONAL
ASSOCIATION, 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
2012-3C-S
 
       
 
By:
   
    Name:   
    Title:   
       

 
 

 
 


Schedule I


Schedule of Assigned Documents

(1) Intercreditor Agreement dated as of March 22, 2012 among Wilmington Trust Company, not in its individual capacity, but solely as Class A Trustee and Class B Trustee, Natixis S.A., New York Branch (as assignee of Credit Suisse AG, acting through its New York Branch), as Class A Liquidity Provider and Class B Liquidity Provider, and Wilmington Trust Company, not in its individual capacity except as expressly set forth therein, but solely as Subordination Agent and trustee thereunder, as amended by Amendment No. 1 to Intercreditor Agreement (2012-1) dated as of December 27, 2012.
 
(2) Intercreditor Agreement dated as of October 3, 2012 among Wilmington Trust, National Association, not in its individual capacity, but solely as Class A Trustee and Class B Trustee, Natixis S.A., acting through its New York Branch, as Class A Liquidity Provider and Class B Liquidity Provider, and Wilmington Trust, National Association, not in its individual capacity except as expressly set forth therein, but solely as Subordination Agent and trustee thereunder, as amended by Amendment No. 1 to Intercreditor Agreement (2012-2) dated as of December 27, 2012
 
(3) Escrow and Paying Agent Agreement (Class C) dated as of December 27, 2012 among the Escrow Agent, the Underwriters, the Trustee and the Paying Agent.
 
(4) Note Purchase Agreement dated as of December 27, 2012 among the Company, the Trustee, the Subordination Agent under each of the Intercreditor Agreements, the Escrow Agent and the Paying Agent.
 
(5) Deposit Agreement (Class C) dated as of December 27, 2012 between the Escrow Agent and the Depositary.
 
(6) 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, National Association, not in its individual capacity but solely as Subordination Agent

Wilmington Trust, National Association, not in its individual capacity but solely as Paying Agent

Natixis S.A., acting through its New York Branch, as Depositary

Continental Airlines, Inc.

Credit Suisse Securities (USA) LLC, as Underwriter

Morgan Stanley & Co. LLC, as Underwriter

Goldman, Sachs & Co., as Underwriter

Citigroup Global Markets Inc., as Underwriter

Deutsche Bank Securities Inc., as Underwriter

Barclays Capital Inc., as Underwriter

Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Underwriter

J.P. Morgan Securities LLC, as Underwriter

U.S. Bank National Association, as Escrow Agent

Each of the other parties to the Assigned Documents


 
 


SCHEDULE I
To Trust Supplement

OWNED AIRCRAFT
 
 
Owned Aircraft
   
Owned Aircraft Indenture
Aircraft Model
U.S.
Reg. No.
Prior Series
Original Principal Amount of Series C Equipment Notes
Trust Indenture and Mortgage 432
Boeing 737-924ER
N75432
2012-1
$6,274,000
Trust Indenture and Mortgage 433
Boeing 737-924ER
N75433
2012-1
$6,220,000
Trust Indenture and Mortgage 435
Boeing 737-924ER
N75435
2012-1
$6,112,000
Trust Indenture and Mortgage 447
Boeing 737-924ER
N36447
2012-1
$7,543,000
Trust Indenture and Mortgage 449
Boeing 737-924ER
N81449
2012-1
$7,592,000
Trust Indenture and Mortgage 448
Boeing 737-924ER
N78448
2012-1
$7,576,000
Trust Indenture and Mortgage 451
Boeing 737-924ER
N38451
2012-1
$7,635,000
Trust Indenture and Mortgage 450
Boeing 737-924ER
N39450
2012-1
$7,622,000
Trust Indenture and Mortgage 452
Boeing 737-924ER
N68452
2012-1
$7,669,000
Trust Indenture and Mortgage 453
Boeing 737-924ER
N68453
2012-1
$7,674,000
Trust Indenture and Mortgage 454
Boeing 737-924ER
N38454
2012-1
$7,700,000
Trust Indenture and Mortgage 455
Boeing 737-924ER
N34455
2012-1
$7,708,000
Trust Indenture and Mortgage 456
Boeing 737-924ER
N37456
2012-1
$7,802,000
Trust Indenture and Mortgage 457
Boeing 737-924ER
N28457
2012-1
$7,802,000
Trust Indenture and Mortgage 458
Boeing 737-924ER
N38458
2012-1
$7,683,000
Trust Indenture and Mortgage 459
Boeing 737-924ER
N38459
2012-1
$7,858,000
Trust Indenture and Mortgage 460
Boeing 737-924ER
N34460
2012-1
$7,871,000
 
 
 
 

 
 
Owned Aircraft
   
Owned Aircraft Indenture
Aircraft Model
U.S.
Reg. No.
Prior Series
Original Principal Amount of Series C Equipment Notes
Trust Indenture and Mortgage 904
Boeing 787-8
N20904
2012-1
$17,774,000
Trust Indenture and Mortgage 906
Boeing 787-8
N26906
2012-1
$18,072,000
Trust Indenture and Mortgage 902
Boeing 787-8
N26902
2012-1
$18,615,000
Trust Indenture and Mortgage 905
Boeing 787-8
N45905
2012-1
$18,753,000
Trust Indenture and Mortgage 461
Boeing 737-924ER
N39461
2012-2
$8,906,000
Trust Indenture and Mortgage 462
Boeing 737-924ER
N37462
2012-2
$8,906,000
Trust Indenture and Mortgage 463
Boeing 737-924ER
N39463
2012-2
$8,916,000
Trust Indenture and Mortgage 464
Boeing 737-924ER
N37464
2012-2
$8,916,000
Trust Indenture and Mortgage 903
Boeing 787-8
N27903
2012-2
$21,279,000

 
 


SCHEDULE II
To Trust Supplement

ELIGIBLE AIRCRAFT AND SCHEDULED DELIVERY MONTHS

New Aircraft Type
Expected Registration Number
Expected Manufacturer’s Serial Number
Scheduled Delivery Month
Boeing 737-924ER
N37465
36599
January 2013
Boeing 737-924ER
N37466
31644
January 2013
Boeing 737-924ER
N38467
33537
February 2013
Boeing 737-924ER
N37468
32836
February 2013
Boeing 737-924ER
N36469
36600
March 2013
Boeing 737-924ER
N37470
37099
March 2013
Boeing 737-924ER
N37471
37102
April 2013
Boeing 737-924ER
N36472
31653
April 2013
Boeing 737-924ER
N38473
38702
May 2013
Boeing 737-924ER
N37474
31648
May 2013
Boeing 737-924ER
N39475
38703
June 2013
Boeing 737-924ER
N36476
37100
June 2013
Boeing 737-924ER
N27477
31647
July 2013
Boeing 737-924ER
N38479
31649
July 2013
Boeing 787-8
N27901
34821
December 2012
Boeing 787-8
N29907
34830
July 2013
Boeing 787-8
N27908
36400
September 2013

e62158477ex4_2.htm
Exhibit 4.2
 
EXECUTION VERSION
 

 





TRUST SUPPLEMENT No. 2012-3C-S

Dated as of December 27, 2012


between

WILMINGTON TRUST, NATIONAL ASSOCIATION
as Trustee,


and


CONTINENTAL AIRLINES, INC.

to

PASS THROUGH TRUST AGREEMENT
Dated as of October 3, 2012


$425,000,000

Continental Airlines Pass Through Trust 2012-3C-S
6.125% Continental Airlines
Pass Through Certificates,
Series 2012-3C-S



 
 

 
 

TABLE OF CONTENTS

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This Trust Supplement No. 2012-3C-S, dated as of December 27, 2012 (herein called the “Trust Supplement”), between Continental Airlines, Inc., a Delaware corporation (the “Company”), and Wilmington Trust, National Association (the “Trustee”), to the Pass Through Trust Agreement, dated as of October 3, 2012, 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 face 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, under the terms of two series of Continental Airlines pass through certificates previously issued and designated Series 2012-1 (the “Series 2012-1”) and Series 2012-2 (the “Series 2012-2” and, together with the Series 2012-1, the “Prior Series”), the Company is entitled to sell Series C Equipment Notes secured by aircraft financed under each Prior Series;

WHEREAS, the Company has purchased the 26 aircraft listed on Schedule I to the Related Pass Through Trust Supplement (the “Owned Aircraft”) prior to the date of this Trust Supplement (the “Issuance Date”) utilizing the proceeds of the sale of secured equipment notes acquired by the pass through trustees under the Prior Series;

WHEREAS, the Company has obtained commitments from Boeing for the delivery of 14 Boeing 737-924ER aircraft and three Boeing 787-8 aircraft listed in Schedule II to the Related Pass Through Trust Supplement (collectively, the “Eligible Aircraft”);

WHEREAS, as of the Transfer Date (as defined below), the Company will have financed the purchase price of each Boeing 737-924 aircraft and two of the three Boeing 787-8 aircraft included in the Eligible Aircraft (all such Eligible Aircraft to be financed, the “New Aircraft” and, together with the Owned Aircraft, the “Applicable Aircraft”);

WHEREAS, as of the Transfer Date, in the case of each Applicable Aircraft, the Company will have issued pursuant to an Indenture, on a recourse basis, Equipment Notes, including Series C Equipment Notes;

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 2012-3C-S (the “Applicable Trust”) for the benefit of the Applicable Certificateholders, and each Holder of Applicable Certificates

 
 

2

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:
 
ARTICLE I
THE CERTIFICATES
 
Section 1.01.  The Certificates.  The Applicable Certificates shall be known as “Continental Airlines Pass Through Certificates, Series 2012-3C-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 face 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, 3.05 and 3.06 of the Basic Agreement and Sections 8.03 and 8.04 of this Trust Supplement, no Applicable Certificates shall be authenticated under the Agreement.


 
 

3

(b)           The Regular Distribution Dates with respect to any distribution of Scheduled Payments means April 29 and October 29 of each year, commencing on April 29, 2013, until distribution of all of the Scheduled Payments to be made under the Series C 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 Distribution, 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 have represented and warranted to and for the benefit of the Company that either (i) no assets of an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), a plan subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or a governmental, church or foreign plan subject to a law that is similar to Title I of ERISA or Section 4975 of the Code (a “Similar Law Plan”) have been used to purchase or hold such Applicable Certificate or an interest therein or (ii) the purchase and holding of such Applicable Certificate or an interest therein either (a) in the case of assets of an employee benefit plan subject to Title I of ERISA or a plan subject to Section 4975 of the Code, are exempt from the prohibited transaction restrictions of ERISA and the Code pursuant to one or more prohibited transaction statutory or administrative exemptions or (b) in the case of assets of a Similar Law Plan, will not violate any similar state, local or foreign law.

(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 Applicable Trust and the Clearing Agency attached as Exhibit B to the Related Pass Through Trust Supplement.


 
 

4

(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 Agreements, the Deposit Agreement and the Escrow Agreement.
 
(h)           The Applicable Certificates are not entitled to the benefits of a liquidity facility.
 
(i)           The Responsible Party is the Company.
 
(j)           The date referred to in clause (i) of the definition of the term “PTC Event of Default” in the Basic Agreement is the Final Maturity Date.
 
(k)           The “particular sections of the Note Purchase Agreement”, for purposes of clause (3) of Section 7.07 of the Basic Agreement, are Section 8.1 of each Participation Agreement.
 
(l)           The Equipment Notes to be acquired and held in the Applicable Trust, and the related Aircraft and Note Documents, are described in the NPA.
 
ARTICLE II
DEFINITIONS
 
Section 2.01.  Definitions.  For all purposes of the Basic Agreement as supplemented by this Trust Supplement, the following capitalized terms have the following meanings (any term used herein which is defined in both this Trust Supplement and the Basic Agreement shall have the meaning assigned thereto in this Trust Supplement for purposes of the Basic Agreement as supplemented by this Trust Supplement):

Agreement:  Means the Basic Agreement, as supplemented by this Trust Supplement.

Aircraft:  Means each of the Applicable Aircraft (or Substitute Aircraft or any substitute aircraft, including engines therefor, owned by the Company and securing one or more Series C 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.


 
 

5

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 New York, New York, Chicago, Illinois, or, so long as any Applicable Certificate is Outstanding, the city and state in which the Trustee, any Subordination Agent or any Loan Trustee maintains its Corporate Trust Office or receives and disburses funds.

Certificate:  Has the meaning specified in the applicable Intercreditor Agreement.

Certificate Buyout Event: Means, in the case of a Prior Series, 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 with respect to such Prior Series or, if it has entered into such agreements, has at any time thereafter failed to cure any default under any of the Indentures with respect to such Prior Series 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 subject to an Indenture with respect to such Prior Series.

Class:  Has the meaning specified in the applicable 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 applicable Intercreditor Agreement.


 
 

6

Controlling Party:  Has the meaning specified in the applicable 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 December 27, 2012 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 Natixis S.A., a French société anonyme, acting through its New York Branch.

Deposits:  Has the meaning specified in the Deposit Agreement.

Distribution Date:  Means any Regular Distribution Date or Special Distribution Date as the context requires.

Eligible Aircraft:  Has the meaning specified in the recitals hereto.

Equipment Notes: Means all of the equipment notes issued under the Indentures.

Escrow Agent:  Means, initially, U.S. Bank 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 December 27, 2012 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 Distribution: Has the meaning specified in the Escrow Agreement.


 
 

7

Final Maturity Date:  Means April 29, 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 “Indenture” as defined in the Intercreditor Agreement for any Prior Series.

Intercreditor Agreement:  Means, for each Prior Series, the Intercreditor Agreement for such Prior Series as listed on Schedule III to the NPA, as amended by the Intercreditor Agreement Amendment applicable to such Prior Series, as further amended, supplemented or otherwise modified from time to time in accordance with its terms.

Intercreditor Agreement Amendment:  Means, for each Prior Series, the Amendment No. 1 to the Intercreditor Agreement for such Prior Series dated as of the Issuance Date among the Company, the Related Trustee (and after the Transfer Date, the Trustee) and the subordination agent for such Prior Series, providing for, among other things, the Trustee to become a party to such Intercreditor Agreement.

Investors:  Means the Underwriters, together with all subsequent beneficial owners of the Applicable Certificates.

Issuance Date: Has the meaning specified in the recitals hereto.

Make-Whole Amount:  Has the meaning specified in any Indenture.

New Aircraft: Has the meaning specified in the recitals hereto.

Note Documents:  Means the Series C Equipment Notes and, with respect to any such Series C Equipment Note, the Indenture and the Participation Agreement relating to such Series C Equipment Note.

NPA:  Means the Note Purchase Agreement dated as of December 27, 2012 among the Related Trustee (and after the Transfer Date, the Trustee), the Company, the Escrow Agent, the Escrow Paying Agent and the subordination agent under each of the Intercreditor Agreements, providing for, among other things, the purchase of Series C 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 any Refinancing Trust.


 
 

8

Other Trustees:  Means the trustees under the Other Agreements, if any, and any successor or other trustee appointed as provided therein.

Other Trusts:  Means a Refinancing Trust or Trusts, if any, created by the Other Agreements.

Outstanding:  When used with respect to Applicable Certificates, means, as of the date of determination, all Transfer Date Certificates, and all other Applicable Certificates theretofore authenticated and delivered under the Agreement, in each case except:

(i)   Applicable Certificates theretofore canceled by the Registrar or delivered to the Trustee or the Registrar for cancellation;

(ii)   Applicable Certificates for which money in the full amount required to make the final distribution with respect to such Applicable Certificates pursuant to Section 11.01 of the Basic Agreement has been theretofore deposited with the Trustee in trust for the Applicable Certificateholders as provided in Section 4.01 of the Basic Agreement pending distribution of such money to such Applicable Certificateholders pursuant to payment of such final distribution; and

(iii)   Applicable Certificates in exchange for or in lieu of which other Applicable Certificates have been authenticated and delivered pursuant to the Agreement.

Owned Aircraft: Has the meaning specified in the recitals hereto.

Owned Aircraft Indenture: Has the meaning specified in the NPA.

PA Amendment: Has the meaning specified in the NPA.

Participation Agreement:  Has the meaning specified in the NPA.

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 (including Make-Whole Amount) 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 Series C 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

 
 

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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 Series C Equipment Notes, or payment with respect to other Trust Property and the distribution thereof to be made on that date.

Prior Issuance Date: Has the meaning specified in the NPA.

Prior Series: Has the meaning specified in the recitals hereto.

Prospectus Supplement:  Means the final Prospectus Supplement dated December 12, 2012 relating to the offering of the Applicable Certificates.

QIB:  Means a qualified institutional buyer as defined in Rule 144A.

Ratings Confirmation:  Has the meaning specified in the applicable Intercreditor Agreement.

Register:  Has the meaning specified in Section 8.03 of this Trust Supplement.

Registrar:  Has the meaning specified in Section 8.03 of this Trust Supplement.

Related Other Pass Through Trust Agreements:  Means the “Other Agreements” as defined in the Related Pass Through Trust Agreement.

Related Other Trustees:  Means the “Other Trustees” as defined in the Related Pass Through Trust Agreement.

Related Other Trusts:  Means the “Other Trusts” as defined in the Related Pass Through Trust Agreement.
.
Related Pass Through Trust Agreement:  Means the Basic Agreement as supplemented by the Related Pass Through Trust Supplement.

Related Pass Through Trust Supplement:  Means the Trust Supplement No. 2012-3C-O dated as of the date hereof, relating to the Continental Airlines Pass Through Trust 2012-3C-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 2012-3C-O, formed under the Related Pass Through Trust Agreement.

Related Trustee:  Means the trustee under the Related Pass Through Trust Agreement.


 
 

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Restrictive Legend:  Has the meaning specified in Section 8.01 of this Trust Supplement.

Rule 144A:  Means Rule 144A under the Securities Act of 1933, as amended, and any successor rule thereto.

Scheduled Payment: Means, with respect to any Series C Equipment Note, any payment of principal or interest on such Series C Equipment Note (other than any such payment which is not in fact received by the Trustee or the applicable Subordination Agent within five days of the date on which such payment is scheduled to be made), which payment in any such case represents the installment of principal on such Series C Equipment Note at the stated maturity of such installment, the payment of regularly scheduled interest accrued on the unpaid principal amount of such Series C Equipment Note, or both; provided, however, that any payment of principal, premium (including Make-Whole Amount), if any, or interest resulting from the redemption or purchase of any Series C Equipment Note shall not constitute a Scheduled Payment.

Senior Certificates:  Has the meaning specified in Section 4.01(a) of this Trust Supplement.

Senior Trust Agreements: Has the meaning specified in Section 4.01(a) of this Trust Supplement.

Series 2012-1:  Has the meaning specified in the recitals hereto.

Series 2012-2:  Has the meaning specified in the recitals hereto.

Series C Equipment Notes:  Has the meaning specified in the NPA.

Special Payment:  Means any payment (other than a Scheduled Payment) in respect of, or any proceeds of, any Equipment Note or Collateral (as defined in each Indenture).

Subordination Agent: Has the meaning specified in the applicable Intercreditor Agreement

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”.


 
 

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Triggering Event:  Means a “Triggering Event” as defined in the Intercreditor Agreement for Series 2012-2.

Trust Property:  Means (i) subject to the applicable Intercreditor Agreement, the Series C 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 applicable Intercreditor Agreement, any proceeds from the sale by the Trustee pursuant to Article VI of the Basic Agreement of any Series C Equipment Note and (iii) all rights of the Applicable Trust and the Trustee, on behalf of the Applicable Trust, under the Intercreditor Agreements, the Escrow Agreement and the NPA, including, without limitation, all rights to receive certain payments thereunder, and all monies paid to the Trustee on behalf of the Applicable Trust pursuant to the Intercreditor Agreements, 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, Credit Suisse Securities (USA) LLC, Morgan Stanley & Co. LLC, Goldman, Sachs & Co., Citigroup Global Markets Inc., Deutsche Bank Securities Inc., Barclays Capital Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan Securities LLC.

Underwriting Agreement:  Means the Underwriting Agreement dated December 12, 2012 among the Underwriters, the Company and the Depositary, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.
 
ARTICLE III
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 (x) include a statement substantially as follows: “Holders of Class C Certificates are reminded that Class C Certificates may be sold only to qualified institutional buyers, as defined in Rule 144A under the Securities Act of 1933, as amended, for so long as they are outstanding” and (y) set

 
 

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forth (per $1,000 face amount Applicable Certificate as to (ii), (iii), (iv) and (v) below) the following information:
 
 
(i)           the aggregate amount of funds distributed on such Distribution Date under the Agreement and under the Escrow Agreement, indicating the amount allocable to each source;

(ii)           the amount of such distribution under the Agreement allocable to principal and the amount allocable to premium (including Make-Whole Amount), 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)           Promptly following the date of any early redemption of, or any default in the payment of principal or interest in respect of, any of the Series C Equipment Notes held in

 
 

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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 and (y) the related Pool Factors for such Regular Distribution Dates.  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.
 
(d)           The Trustee shall provide promptly to the Applicable Certificateholders all material non-confidential information received by the Trustee from the Company.

(e)           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 an Intercreditor Agreement applicable to a Prior Series, 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 applicable Intercreditor Agreement applicable to such Prior Series) 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

 
 

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respect to Applicable Certificates registered on the Record Date in the name of a Clearing Agency (or its nominee), such distribution shall be made by wire transfer in immediately available funds to the account designated by such Clearing Agency (or such nominee).
 
(b)           The Trustee shall, at the expense of the Company, cause notice of each Special Payment to be mailed to each Applicable Certificateholder at his address as it appears in the Register.  In the event of redemption or purchase of Equipment Notes held in the Applicable Trust, such notice shall be mailed not less than 15 days prior to the Special Distribution Date for the Special Payment resulting from such redemption or purchase, which Special Distribution Date shall be the date of such redemption or purchase.  In the case of any other Special Payments, such notice shall be mailed as soon as practicable after the Trustee has confirmed that it has received funds for such Special Payment, stating the Special Distribution Date for such Special Payment which shall occur not less than 15 days after the date of such notice and as soon as practicable thereafter.  Notices 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 (including Make-Whole Amount), 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 (including Make-Whole Amount), if any, payable upon the redemption or purchase of a Series C 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 (including Make-Whole Amount) received will also be distributed.
 
If any redemption of the Series C 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 Loan Trustees, the Owner Trustees or the Owner Participants” in the second sentence thereof and adding the words “or Loan Trustees”.

 
 

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ARTICLE IV
DEFAULT
 
Section 4.01.  Purchase Rights of Certificateholders.  (a) At any time after the occurrence and during the continuation of a Certificate Buyout Event under a Prior Series, each Applicable Certificateholder (other than the Company or any of its Affiliates) shall have the right (which shall not expire (i) in the case of the Series 2012-1, upon any purchase of the Class A Certificates issued under such Prior Series pursuant to the Class B Trust Agreement with respect to such Prior Series and (ii) in the case of the Series 2012-2, upon any purchase of Class A Certificates issued under such Prior Series pursuant to the Class B Trust Agreement with respect to such Prior Series) to purchase, for the purchase prices set forth (I) in the case of the Series 2012-1, the Class A Trust Agreement and the Class B Trust Agreement with respect to such Prior Series or (II) in the case of the Series 2012-2, the Class A Trust Agreement and the Class B Trust Agreement with respect to such Prior Series (in each case with respect to such Prior Series, the “Senior Trust Agreements”), respectively, all, but not less than all (X) in the case of the Series 2012-1, of the Class A Certificates and the Class B Certificates issued under such Prior Series or (Y) in the case of the Series 2012-2, of the Class A Certificates and the Class B Certificates issued under such Prior Series (in each case with respect to such Prior Series, the “Senior Certificates”) upon 15 days’ written notice to the trustees under each of the Senior Trust Agreements with respect to such Prior Series and each other Applicable Certificateholder, on the third Business Day next following the expiry of such 15-day notice period, provided that (A) if prior to the end of such 15-day period any other Applicable Certificateholder (other than the Company or any of its Affiliates) notifies such purchasing Applicable Certificateholder that such other Applicable Certificateholder wants to participate in such purchase, then such other Applicable Certificateholder (other than the Company or any of its Affiliates) may join with the purchasing Applicable Certificateholder to purchase all, but not less than all, of the Senior Certificates with respect to such Prior Series pro rata based on the Fractional Undivided Interest in the Applicable Trust held by each such Applicable Certificateholder and (B) if prior to the end of such 15-day period any other Applicable Certificateholder fails to notify the purchasing Applicable Certificateholder of such other Applicable Certificateholder’s desire to participate in such a purchase, then such other Applicable Certificateholder shall lose its right to purchase the Senior Certificates with respect to such Prior Series pursuant to this Section 4.01(a).

As used in this Section 4.01 and elsewhere in this Trust Supplement with respect to any Prior Series, the terms “Class A Certificate”, “Class A Trust Agreement”, “Class B Certificate”, “Class B Trust Agreement”, “Refinancing Certificates”, “Refinancing Equipment Notes” and “Refinancing Trust” shall have the respective meanings assigned to such terms in the Intercreditor Agreement for such Prior Series.

(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

 
 

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phrase “and thereby annul any Direction given by such Certificateholders or the Trustee to such Loan Trustee with respect thereto,” set forth in the first sentence thereof.
 
ARTICLE V
THE TRUSTEE
 
Section 5.01.  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 5.02.  [Intentionally Omitted]


 
 

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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, each Intercreditor Agreement Amendment, each PA Amendment, 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 Amendments, the Escrow Agreement, the NPA and the Note Documents to which it is a party and to perform the Intercreditor Agreements and has taken all necessary action to authorize such receipt, assumption and performance by it of this Trust Supplement, the Intercreditor Agreement Amendments, the Escrow Agreement, the NPA and the Note Documents to which it is a party and the performance by it of the Intercreditor Agreements;

(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 Amendments, the Escrow Agreement, the NPA and the Note Documents to which it is a party and the performance by the Trustee of the Intercreditor Agreements (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,

 
 

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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 Amendments, the Escrow Agreement, the NPA and the Note Documents to which it is a party and the performance by the Trustee of the Intercreditor Agreements 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 Agreements, the Intercreditor Agreement Amendments, 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 Agreements or the NPA.
 
ARTICLE VI
ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS
 
Section 6.01.  Amendment of Section 5.02 of the Basic Agreement.  Section 5.02 of the Basic Agreement shall be amended, with respect to the Applicable Trust, by (i) replacing the phrase “of the Note Documents and of this Agreement” set forth in paragraph (b) thereof with the phrase “of the Note Documents, of the NPA and of this Agreement” and (ii) replacing the phrase “of this Agreement and any Note Document” set forth in the last paragraph of Section 5.02 with the phrase “of this Agreement, the NPA and any Note Document”.

Section 6.02.  Supplemental Agreements Without Consent of Applicable Certificateholders.  Without limitation of Section 9.01 of the Basic Agreement, under the terms of, and subject to the limitations contained in, Section 9.01 of the Basic Agreement, the

 
 

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Company may (but will not be required to), and the Trustee (subject to Section 9.03 of the Basic Agreement) shall, at the Company’s request, at any time and from time to time:

(i)           enter into one or more agreements supplemental to the Escrow Agreement, the NPA or the Deposit Agreement, for any of the purposes set forth in clauses (1) through (9) of such Section 9.01, and (without limitation of the foregoing or Section 9.01 of the Basic Agreement) (a) clauses (2) and (3) of such Section 9.01 shall also be deemed to include the Company’s obligations under (in the case of clause (2)), and the Company’s rights and powers conferred by (in the case of clause (3)), the NPA, and (b) references in clauses (4), (6) and (7) of such Section 9.01 to “any Intercreditor Agreement” shall also be deemed to refer to “any Intercreditor Agreement, the Escrow Agreement, the NPA or the Deposit Agreement”, and

(ii)           enter into one or more agreements supplemental to the Agreement to provide for the formation of one or more Refinancing Trusts, the issuance of Refinancing Certificates, the purchase by any Refinancing Trust of applicable Refinancing Equipment Notes and other matters incidental thereto or as otherwise contemplated by Section 2.01(b) of the Basic Agreement, subject to the provisions of Section 4(a)(vi) of the NPA and Section 9.1(c) of the applicable Intercreditor Agreement.

Section 6.03.  Supplemental Agreements with Consent of Applicable Certificateholders.  Without limitation of Section 9.02 of the Basic Agreement, the provisions of Section 9.02 of the Basic Agreement shall apply to agreements or amendments for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Escrow Agreement, the Deposit Agreement or the NPA or modifying in any manner the rights and obligations of the Applicable Certificateholders under the Escrow Agreement, the Deposit Agreement or the NPA; provided that (a) 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, (b) the reference in clause (2) of such Section 9.02 to “this Agreement” shall also be deemed to refer to “this Agreement and the related Intercreditor Agreement” and (c) the reference in clause (3) of such Section 9.02 to “the Intercreditor Agreement” shall be deemed to refer to “any Intercreditor Agreement”.

Section 6.04.  Consent of Holders of Certificates Issued under Other Trusts.  Notwithstanding any provision in Section 6.02 or Section 6.03 of this Trust Supplement to the contrary, no amendment or modification of Section 4.01 of this Trust Supplement shall be effective unless the trustee for each Class of Certificates affected by such amendment or modification shall have consented thereto
 
ARTICLE VII
TERMINATION OF TRUST
 
Section 7.01.  Termination of the Applicable Trust.  (a)  The respective obligations and responsibilities of the Company and the Trustee with respect to the Applicable Trust shall terminate upon the distribution to all Applicable Certificateholders and the Trustee of

 
 

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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.
 
ARTICLE VIII
TRANSFER OF THE APPLICABLE CERTIFICATES

Section 8.01Restrictive Legends. All Applicable Certificates issued pursuant to the Agreement shall bear a legend to the following effect (the “Restrictive Legend”):

THIS CERTIFICATE IS SUBJECT TO TRANSFER RESTRICTIONS. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS A “QUALIFIED
 

 
 

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INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933, AS AMENDED); (2) AGREES THAT, FOR SO LONG AS THIS CERTIFICATE IS OUTSTANDING, IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT TO A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933, AS AMENDED); AND (3) AGREES THAT IF IT SHOULD RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE IT WILL DELIVER TO EACH PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.  IN CONNECTION WITH ANY TRANSFER OF THIS CERTIFICATE, THE TRANSFEREE MUST COMPLETE THE FORM ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT SUCH FORM TO THE TRUSTEE.  TRUST SUPPLEMENT NO. 2012-3C-O TO THE PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE REGISTRAR TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
 
Section 8.02Amendment of Section 3.04 of the Basic Agreement.  Sections 8.03 and 8.04 of this Trust Supplement supersede and replace Section 3.04 of the Basic Agreement, with respect to the Applicable Trust.
 
Section 8.03Transfer and Exchange.  The Trustee shall cause to be kept at the office or agency to be maintained by it in accordance with the provisions of Section 7.12 of the Basic Agreement a register (the “Register”) of the Applicable Certificates in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of such Applicable Certificates and of transfers and exchanges of such Applicable Certificates as herein provided.  The Trustee shall initially be the registrar (the “Registrar”) for the purpose of registering such Applicable Certificates and transfers and exchanges of such Applicable Certificates as herein provided.
 
All Applicable Certificates issued upon any registration of transfer or exchange of Applicable Certificates shall be valid obligations of the Applicable Trust, evidencing the same interest therein, and entitled to the same benefits under the Agreement, as the Applicable Certificates surrendered upon such registration of transfer or exchange.
 
Upon surrender for registration of transfer of any Applicable Certificate at the Corporate Trust Office or such other office or agency with the form of transfer notice thereon duly completed and executed, and otherwise complying with the terms of the Agreement, including providing evidence of compliance with any restrictions on transfer, in form satisfactory to the Trustee and the Registrar, the Trustee shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Applicable Certificates of like series, in authorized denominations of a like aggregate Fractional Undivided Interest.  No such transfer shall be effected until, and such transferee shall succeed to the rights of an Applicable Certificateholder only upon, final acceptance and registration of the transfer by the Registrar in the Register.  Prior to the registration of any transfer by an Applicable Certificateholder as provided herein, the Trustee shall treat the person in whose name the Applicable Certificate is

 
 

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registered as the owner thereof for all purposes, and the Trustee shall not be affected by notice to the contrary.  Furthermore, DTC shall, by acceptance of an Applicable Certificate, agree that transfers of beneficial interests in such Applicable Certificate may be effected only through a book-entry system maintained by DTC (or its agent) and that ownership of a beneficial interest in an Applicable Certificate shall be required to be reflected in a book-entry. Whenever any Applicable Certificates are so surrendered for exchange, the Trustee shall execute, authenticate and deliver the Applicable Certificates that the Applicable Certificateholder making the exchange is entitled to receive.  Every Applicable Certificate presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Trustee and the Registrar duly executed by the Applicable Certificateholder thereof or its attorney duly authorized in writing.

The Registrar shall not register the transfer or exchange of any Applicable Certificate in the name of any Person unless and until evidence satisfactory to the Company and the Trustee that the conditions to any such transfer or exchange set forth in Section 8.04 shall have been satisfied is submitted to them.  Such conditions shall be deemed satisfied with respect to a transfer if the transferor and transferee duly execute and deliver to the Trustee the transfer notice in the form attached to the Applicable Certificate, unless the Company or the Trustee has a reasonable basis for requesting additional evidence.
 
To permit registrations of transfers and exchanges in accordance with the terms, conditions and restrictions hereof, the Trustee shall execute and authenticate Applicable Certificates at the Registrar’s request.  No service charge shall be made to an Applicable Certificateholder for any registration of transfer or exchange of Applicable Certificates, but the Trustee shall require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of Applicable Certificates.  All Applicable Certificates surrendered for registration of transfer or exchange shall be cancelled and subsequently destroyed by the Trustee.
 
Section 8.04Special Transfer Provisions.
 
(a)           Transfers Limited to QIBs.  If an Applicable Certificate is to be transferred, the Registrar shall register the transfer only if such transfer is being made to a proposed transferee who has provided the transfer notice attached to the form of Applicable Certificate stating, or has otherwise advised the Trustee and the Registrar in writing, that it is purchasing the Applicable Certificate for its own account or an account with respect to which it exercises sole investment discretion and that it, or the Person on whose behalf it is acting with respect to, and any such account is a QIB within the meaning of Rule 144A.
 
(b)           Restrictive Legend.  Upon the transfer, exchange or replacement of Applicable Certificates, the Registrar shall deliver only Applicable Certificates that bear the Restrictive Legend.
 
(c)           General.  By acceptance of any Applicable Certificate, each Holder of such Applicable Certificate will be deemed to:
 
 
 
 

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(i)           Represent that it is accepting such Applicable Certificate for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a QIB;
 
(ii)          Agree that any sale or other transfer by it of any Applicable Certificate will only be made to a QIB;
 
(iii)         Agree that it will, and that it will inform each subsequent transferee that such transferee will be required to, deliver to each person to whom it transfers Applicable Certificates notice of these restrictions on transfer of the Applicable Certificates;
 
(iv)         Agree that no registration of the transfer of an Applicable Certificate will be made unless the transferee completes and submits to the Trustee the form included on the reverse of the Applicable Certificate in which it states that it is purchasing the Applicable Certificate for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a QIB;
 
(v)           Understand that the Applicable Certificates will bear a legend substantially to the effect of the Restrictive Legend;
 
(vi)          Acknowledge that the Company, the Trustee, the Underwriters and others will rely on the truth and accuracy of the foregoing acknowledgments, representations, warranties and agreements and agree that, if any of the acknowledgments, representations, warranties and agreements deemed to have been made by its purchase of the Applicable Certificates is no longer accurate, it shall promptly notify the Company, the Trustee and the Underwriters.  If it is acquiring any Applicable Certificates as a fiduciary or agent of one or more investor accounts, it represents that it has sole investment discretion with respect to each such investor account and that it has full power to make the foregoing acknowledgments, representations and agreements on behalf of each such investor account;
 
(vii)         Acknowledge that the foregoing restrictions apply to holders of beneficial interests in the Applicable Certificates as well as to registered holders of Applicable Certificates; and
 
(viii)        Acknowledge that the Trustee will not be required to accept for registration of transfer any Applicable Certificate unless evidence satisfactory to the Company and the Trustee that the restrictions on transfer set forth herein have been complied with is submitted to them.
 
Until such time as no Applicable Certificates remain Outstanding, the Registrar shall retain copies of all letters, notices and other written communications received pursuant to this Section 8.04.  The Trustee, if not the Registrar at such time, shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar.
 
 
 
 

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ARTICLE IX
MISCELLANEOUS PROVISIONS
 
Section 9.01.  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 9.02.  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 9.02 SUPERSEDES AND REPLACES SECTION 12.05 OF THE BASIC AGREEMENT, WITH RESPECT TO THE APPLICABLE TRUST.

Section 9.03.  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 9.04.  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.

 
 

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IN WITNESS WHEREOF, the Company and the Trustee have caused this Trust Supplement to be duly executed by their respective officers thereto duly authorized, as of the day and year first written above.
 
  CONTINENTAL AIRLINES, INC.  
       
       
 
By:
/s/ Gerald Laderman  
    Name: Gerald Laderman  
    Title: Senior Vice President Finance and Treasurer  
       
 
 
WILMINGTON TRUST, NATIONAL
ASSOCIATION,
    as Trustee
 
       
       
 
By:
/s/ Mark H. Brzoska  
    Name: Mark H. Brzoska  
    Title: Banking Officer  
       
 
 
 
 
[Trust Supplement No. 2012-3C-S Signature Page]

 
 
e62158477ex4_3.htm
Exhibit 4.3
 
EXECUTION VERSION

 
AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (2012-1)


AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (2012-1), dated as of December 27, 2012 (this “Amendment No. 1”), is made by and among WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as Trustee (the “Class C Trustee”) under the Continental Airlines Pass Through Trust 2012-3C-O (the “Class C Trust”); CONTINENTAL AIRLINES, INC., a Delaware corporation (“Continental”); and WILMINGTON TRUST COMPANY, a Delaware trust company, not in its individual capacity but solely as Subordination Agent and as trustee under the Intercreditor Agreement (as defined below) (in such capacity, together with any duly appointed successor, the “Subordination Agent”).

W I T N E S S E T H:
 
WHEREAS, Wilmington Trust Company, not in its individual capacity but solely as Class A Trustee and Class B Trustee, Credit Suisse AG, New York Branch, as Class A Liquidity Provider and Class B Liquidity Provider, and Wilmington Trust Company, not in its individual capacity but solely as Subordination Agent and trustee thereunder, have heretofore entered into the Intercreditor Agreement (2012-1) dated as of March 22, 2012, as amended by that certain Acknowledgement and Agreement dated as of May 30, 2012 (the “Acknowledgement”), among Continental, Wilmington Trust Company, not in its individual capacity but solely as Class A Trustee and Class B Trustee, Credit Suisse AG, New York Branch, as initial Liquidity Provider, Natixis S.A., acting through its New York Branch, as Replacement Liquidity Provider, and Wilmington Trust Company, not in its individual capacity but solely as Subordination Agent and trustee thereunder (as so amended, the “Original Intercreditor Agreement”), and as further amended by this Amendment No. 1, and as the same may be further amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intercreditor Agreement”);
 
WHEREAS, pursuant to the Acknowledgement, as of May 30, 2012, Natixis S.A., acting through its New York Branch, has replaced Credit Suisse AG, New York Branch, as Class A Liquidity Provider and Class B Liquidity Provider pursuant to Section 3.5(e) of the Intercreditor Agreement;
 
WHEREAS, on the date hereof, a Continental Airlines Pass Through Trust 2012-3C-O will be created to issue pass through certificates designated as “Series 2012-3C-O” (the “Class C Certificates”) pursuant to a Pass Through Trust Agreement dated as of October 3, 2012 between Continental and Wilmington Trust, National Association, as supplemented by Supplement No. 2012-3C-O thereto dated as of the date hereof (the “Class C Trust Agreement”);
 
WHEREAS, pursuant to the Note Purchase Agreement, dated as of December 27, 2012 (the “Class C Note Purchase Agreement”), among Continental, the Class C Trustee, the Subordination Agent, Wilmington Trust, National Association, as subordination agent and trustee under the Intercreditor Agreement (2012-2) dated as of October 3, 2012 (the “Other Intercreditor Agreement”), U.S. Bank National Association, as escrow agent, and Wilmington Trust, National Association, as paying agent, the Class C Trustee will purchase a single series of
 

Intercreditor Agreement Amendment (2012-1)
 
 

 

Additional Equipment Notes (the “Series C Equipment Notes”) issued by Continental under the Indentures and the Indentures (as defined in the Other Intercreditor Agreement) using a portion of the proceeds from the issuance of the Class C Certificates;
 
WHEREAS, the Series C Equipment Notes to be acquired by the Class C Trust will have an interest rate equal to the Stated Interest Rate applicable to the Class C Certificates to be issued by the Class C Trust;
 
WHEREAS, in connection with the issuance of the Class C Certificates, the parties hereto wish to amend the Original Intercreditor Agreement in accordance with Section 9.1(d) thereof; and
 
WHEREAS, the Ratings Confirmation relating to the issuance of the Class C Certificates and this Amendment No. 1, as required by Section 9.1(d) of the Original Intercreditor Agreement has been obtained.
 
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:
 
Section 1. Definitions.  Capitalized terms and phrases used and not otherwise defined herein shall for all purposes of this Amendment No. 1, including the recital of the parties and the other preceding recitals, have the respective meanings specified therefor in the Original Intercreditor Agreement.
 
Section 2. Amendment.  Effective as of the date hereof, the Original Intercreditor Agreement shall be amended as follows:

(a) the Class C Trustee shall be added as a party to the Intercreditor Agreement, and the parties hereto confirm and agree that, upon execution and delivery of this Amendment No. 1 by each of Continental and the Subordination Agent, the Class C Trustee shall be a party to the Intercreditor Agreement as fully and with the same force and effect as if the Class C Trustee had originally executed and delivered a counterpart thereof;
 
(b) Section 1.1 of the Original Intercreditor Agreement shall be amended by adding the following new definitions in appropriate alphabetical order:
 
Class A Expected Distributions” means, on any Current Distribution Date, the difference between (A) the Series A Pool Balance 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 Series A Pool Balance as of the Current Distribution Date calculated on the basis that (i) the principal of any 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 any 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
 

Intercreditor Agreement Amendment (2012-1)
 
2

 

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 Series A 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 Class A Expected Distributions, any Premium paid on the Equipment Notes held in the Class A Trust which has not been distributed to the holders of the Class A Certificates (other than such Premium or a portion thereof applied to the payment of interest on the Class A Certificates or the reduction of the Series A Pool Balance) shall be added to the amount of such Class A Expected Distributions.
 
Class B Expected Distributions” means, on any Current Distribution Date, the difference between (A) the Series B Pool Balance 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 B Certificates) and (B) the Series B Pool Balance as of the Current Distribution Date calculated on the basis that (i) the principal of any Non-Performing Equipment Notes held in the Class B Trust has been paid in full and such payments have been distributed to the holders of the Class B Certificates, (ii) the principal of any Performing Equipment Notes held in the Class B 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 B Certificates and (iii) the principal of any Equipment Notes formerly held in the Class B 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 B Certificates, but without giving effect to any reduction in the Series B 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 B Certificates). For purposes of calculating Class B Expected Distributions, any Premium paid on the Equipment Notes held in the Class B Trust which has not been distributed to the holders of the Class B Certificates (other than such Premium or a portion thereof applied to the payment of interest on the Class B Certificates or the reduction of the Series B Pool Balance) shall be added to the amount of such Class B Expected Distributions.
 
Class C Adjusted Interest” means, as of any Current Distribution Date, (I) any interest described in clause (II) of this definition accruing prior to the immediately preceding Distribution Date which remains unpaid and (II) interest at the Stated Interest Rate for the Class C Certificates (A) for the number of days during the period commencing on, and including, the immediately preceding Distribution Date (or, if the Current Distribution Date is the first Distribution Date for the Class C Certificates, the Class C Closing Date) and ending on, but excluding the Current Distribution Date, on the Preferred C Pool Balance on such Current Distribution Date and (B) on the principal amount calculated pursuant to clauses (B)(i), (ii), (iii) and (iv) of the definition of Preferred C Pool Balance for each Series C Equipment Note with respect to which a disposition, distribution, sale or Deemed Disposition Event has occurred since the immediately preceding Distribution Date (but only if no such event has previously occurred with respect to such Series C Equipment Note), for each day during the period, for each such Series C Equipment Note, commencing on, and including, the immediately preceding Distribution Date (or, if the Current Distribution Date is the first Distribution Date for the Class
 

Intercreditor Agreement Amendment (2012-1)
 
3

 

C Certificates, the Class C Closing Date) and ending on, but excluding the date of disposition, distribution, sale or Deemed Disposition Event with respect to such Series C Equipment Note, Aircraft or Collateral, as the case may be.
 
Class C Basic Agreement” means the Pass Through Trust Agreement dated as of October 3, 2012 between Continental and WTNA, not in its individual capacity, except as otherwise expressly provided therein, but solely as trustee.
 
Class C Certificateholder” means, at any time, any holder of one or more Class C Certificates.
 
Class C Certificates” means the certificates issued by the Class C Trust, substantially in the form of Exhibit A to the Class C Trust Agreement, and authenticated by the Class C Trustee, representing fractional undivided interests in the Class C Trust, and any certificates issued in exchange therefor or replacement thereof pursuant to the terms of the Class C Trust Agreement.
 
Class C Closing Date” means December 27, 2012.
 
Class C Expected Distributions” means, on any Current Distribution Date, the difference between (A) the Series C Limited Pool Balance as of the immediately preceding Distribution Date (or, if the Current Distribution Date is the first Distribution Date, $199,555,000) and (B) the Series C Limited Pool Balance as of the Current Distribution Date calculated on the basis that (i) the principal of any Non-Performing Equipment Notes held in the Class C Trust has been paid in full and such payments have been distributed to the holders of the Class C Certificates, (ii) the principal of any Performing Equipment Notes held in the Class C 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 C Certificates and (iii) the principal of any Series C Equipment Notes formerly held in the Class C 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 C Certificates. For purposes of calculating Class C Expected Distributions, any Premium paid on the Series C Equipment Notes which has not been distributed to the holders of the Class C Certificates (other than such Premium or a portion thereof applied to the payment of interest on the Class C Certificates or the reduction of the Series C Limited Pool Balance) shall be added to the amount of such Class C Expected Distributions.
 
Class C Note Purchase Agreement” means the Note Purchase Agreement, dated as of the Class C Closing Date among Continental, the Class C Trustee, the Subordination Agent, U.S. Bank National Association, as escrow agent and Wilmington Trust, National Association, as paying gent, as amended, supplemented or otherwise modified from time to time in accordance with its terms.
 
Class C Trust” means (A)(i) prior to the Transfer, the Continental Airlines Pass Through Trust 2012-3C-O created and administered pursuant to the Class C Trust Agreement and (ii) after the Transfer, the Continental Airlines Pass Through Trust 2012-3C-S created and administered pursuant to the Class C Trust Agreement and (B) after the Final Distribution has
 

Intercreditor Agreement Amendment (2012-1)
 
4

 

been made with respect to the Class C Certificates, such other pass through trust that acquires Series C Equipment Notes, if and when established in accordance with the provisions of Section 4(a)(vi) of the Class C Note Purchase Agreement and subject to the provisions of Sections 9.1(c) and 9.1(d) of this Agreement.
 
Class C Trust Agreement” means (A)(i) prior to the Transfer, the Class C Basic Agreement, as supplemented by the Supplement No. 2012-3C-O thereto dated as of the date Class C Closing Date, governing the creation and administration of the Continental Airlines Pass Through Trust 2012-3C-O (the “Original Class C Trust”) and the issuance of the Class C Certificates, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms, and (ii) after the Transfer, the Class C Basic Agreement, as supplemented by the Supplement No. 2012-3C-S thereto, governing the creation and administration of the Continental Airlines Pass Through Trust 2012-3C-S (the “Successor Class C Trust”) and the issuance of the Class C Certificates, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms, and (B) after the Final Distribution has been made with respect to the Class C Certificates, such other agreement executed by Continental establishing a Class C Trust in accordance with the provisions of Section 4(a)(vi) of the Class C Note Purchase Agreement and subject to the provisions of Section 9.1(c) and 9.1(d) of this Agreement.
 
Class C Trustee” means WTNA, not in its individual capacity except as expressly set forth in the Class C Trust Agreement, but solely as trustee under the Class C Trust Agreement, together with any successor trustee appointed pursuant thereto.
 
Original Class C Trust” has the meaning assigned to such term in the definition of “Class C Trust Agreement”.
 
Preferred C Pool Balance” means, as of any date, the excess of (A) the Series C Limited Pool Balance as of the immediately preceding Distribution Date (or, if such date is on or before the first Distribution Date occurring after the initial issuance of the Class C Certificates, $199,555,000) over (B) the sum of (i) the outstanding principal amount of each Series C Equipment Note that remains unpaid as of such date subsequent to the disposition of the Collateral under the Indenture pursuant to which such Series C Equipment Note was issued and after giving effect to any distributions of the proceeds of such disposition applied under such Indenture to the payment of each such Series C Equipment Note, (ii) the outstanding principal amount of each Series C Equipment Note that remains unpaid as of such date subsequent to the scheduled date of mandatory redemption of such Series C Equipment Note following an Event of Loss (as defined in such Indenture) with respect to the Aircraft which secured such Series C Equipment Note and after giving effect to the distributions of any proceeds in respect of such Event of Loss applied under such Indenture to the payment of each such Series C Equipment Note, (iii) the excess, if any, of (x) the outstanding amount of principal and interest as of the date of sale of each Series C Equipment Note previously sold over (y) the purchase price received with respect to the sale of such Series C Equipment Note (net of any applicable costs and expenses of sale) and (iv) the outstanding principal amount of any Series C Equipment Note with respect to which a Deemed Disposition Event has occurred; provided, however, that if more than one of the clauses (i), (ii), (iii) and (iv) is applicable to any one Series C Equipment Note, only
 

Intercreditor Agreement Amendment (2012-1)
 
5

 

the amount determined pursuant to the clause that first became applicable shall be counted with respect to such Series C Equipment Note.
 
Series A Pool Balance” means, 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 Series A Pool Balance 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 Series A 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.
 
Series B Pool Balance” means, as of any date, (i) the original aggregate face amount of the Class B Certificates less (ii) the aggregate amount of all payments made as of such date in respect of the Class B Certificates or in respect of Deposits relating to the Class B Trust other than payments made in respect of interest or Premium thereon or reimbursement of any costs and expenses in connection therewith. The Series B Pool Balance 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 Series B Equipment Notes or payment with respect to other Trust Property held in the Class B Trust and the distribution thereof to be made on that date.
 
Series C Equipment Notes” means (A) the 6.125% Series C 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 and (B) after the Final Distribution has been made with respect to the Class C Certificates, equipment notes, if any, issued pursuant to any Indenture by Continental in accordance with Section 4(a)(vi) of the Class C Note Purchase Agreement and subject to the provisions of Section 9.1(c) and 9.1(d) of this Agreement and authenticated by the Loan Trustee under such Indenture, and designated as “Series C” thereunder, and any such equipment notes issued in exchange therefor or replacement thereof pursuant to the terms of such Indenture.
 
Series C Limited Pool Balance” means, as of any date, (i) $199,555,000 less (ii) the aggregate amount of all payments made as of such date in respect of the Class C Certificates  other than payments made in respect of interest or Premium thereon or reimbursement of any costs and expenses in connection therewith. The Series C Limited Pool Balance as of any date shall be computed after giving effect to any payment of principal of the Series C Equipment Notes or payment with respect to other Trust Property of the Prior Series 1 (as defined in the Class C Note Purchase Agreement) held in the Class C Trust and the distribution thereof to be made on that date.
 
Successor Class C Trust” has the meaning assigned to such term in the definition of “Class C Trust Agreement”.
 
(c) the definition of “Certificate” in Section 1.1 of the Original Intercreditor Agreement shall be amended and restated in its entirety to read as follows:
 

Intercreditor Agreement Amendment (2012-1)
 
6

 

Certificate” means a Class A Certificate, a Class B Certificate or a Class C Certificate, as applicable.
 
(d) the definition of “Deposits” in Section 1.1 of the Original Intercreditor Agreement shall be amended and restated in its entirety to read as follows:
 
Deposits”, with respect to any Class of Certificates, has the meaning set forth in the Deposit Agreement (if any) pertaining to such Class.
 
(e) the definition of “Equipment Note Special Payment” in Section 1.1 of the Original Intercreditor Agreement shall be amended and restated in its entirety to read as follows:
 
Equipment Note Special Payment” means a Special Payment on account of the redemption, purchase or prepayment of Equipment Notes issued pursuant to an Indenture.
 
(f) the definition of “Equipment Notes” in Section 1.1 of the Original Intercreditor Agreement shall be amended and restated in its entirety to read as follows:
 
Equipment Notes” means, at any time, the Series A Equipment Notes, the Series B Equipment Notes and the Series C Equipment Notes, collectively, and in each case, any Equipment Notes issued in exchange therefor or replacement thereof pursuant to the terms of the Indentures.
 
(g) the definition of “Expected Distributions” in Section 1.1 of the Original Intercreditor Agreement shall be amended and restated in its entirety to read as follows:
 
Expected Distributions” means, as the context requires, the Class A Expected Distributions, the Class B Expected Distributions or the Class C Expected Distributions.
 
(h) the definition of “Final Distributions” in Section 1.1 of the Original Intercreditor Agreement shall be amended and restated in its entirety to read as follows:
 
Final Distributions” means, with respect to the Certificates of any Trust on any Distribution Date, the sum of (x) the aggregate amount of all accrued and unpaid interest calculated at the Stated Interest Rate on the Pool Balance of such Certificates (excluding interest, if any, payable with respect to the Deposits relating to such Trust) and (y) the Pool Balance of such Certificates as of the immediately preceding Distribution Date (less the amount of the Deposits for such Class of Certificates as of such preceding Distribution Date other than any portion of such Deposits thereafter used to acquire Equipment Notes pursuant to the Note Purchase Agreement or the Class C Note Purchase Agreements, as applicable).  For purposes of calculating Final Distributions with respect to the Certificates of any Trust, any Premium paid on the Equipment Notes held in such Trust which has not been distributed to the Certificateholders of such Trust (other than such Premium or a portion thereof applied to the payment of interest on the Certificates of such Trust or the reduction of the Pool Balance of such Trust) shall be added to the amount of such Final Distributions.
 
(i) the definition of “Final Legal Distribution Date” in Section 1.1 of the Original Intercreditor Agreement shall be amended and restated in its entirety to read as follows:
 

Intercreditor Agreement Amendment (2012-1)
 
7

 

Final Legal Distribution Date” means (i) with respect to the Class A Certificates, October 11, 2025, (ii) with respect to the Class B Certificates, October 11, 2021, and (iii) with respect to the Class C Certificates, April 29, 2018.
 
(j) the definition of “Financing Agreement” in Section 1.1 of the Original Intercreditor Agreement shall be amended and restated in its entirety to read as follows:
 
Financing Agreement” means each of the Participation Agreements, the Indentures, the Note Purchase Agreement and the Class C Note Purchase Agreement.
 
(k) the definition of “Indenture” in Section 1.1 of the Original Intercreditor Agreement shall be amended and restated in its entirety to read as follows:
 
Indenture” means each of the Trust Indentures entered into by the Loan Trustee and Continental pursuant to the Note Purchase Agreement and the Class C Note Purchase Agreement (other than any indenture pursuant to which “Series C Equipment Notes” are issued under the Prior Series 2 (as defined in the Class C 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.
 
(l) the definition of “Operative Agreements” in Section 1.1 of the Original Intercreditor Agreement shall be amended and restated in its entirety to read as follows:
 
Operative Agreements” means this Agreement, the Liquidity Facilities, the Trust Agreements, the Underwriting Agreement, the Underwriting Agreement, dated as of December 12, 2012, among Continental, the underwriters named therein and Natixis S.A., acting through its New York Branch, as depositary, the Financing Agreements, the Fee Letters, the Equipment Notes and the Certificates, together with all exhibits and schedules included with any of the foregoing.
 
(m) the definition of “Pool Balance” in Section 1.1 of the Original Intercreditor Agreement shall be amended and restated in its entirety to read as follows:
 
Pool Balance” means, as the context requires, the Series A Pool Balance, the Series B Pool Balance or the Series C Limited Pool Balance.
 
(n) the definition of “PTC Event of Default” in Section 1.1 of the Original Intercreditor Agreement shall be amended and restated in its entirety to read as follows:
 
PTC Event of Default” means, with respect to each Trust Agreement, the failure to pay within 10 Business Days of the due date thereof:  (i) the outstanding Pool Balance of the applicable Class of Certificates on the Final Legal Distribution Date for such Class or (ii) interest due on such Certificates (calculated at the Stated Interest Rate on the Pool Balance thereof) on any Distribution Date (unless, in the case of the Class A Trust Agreement or the Class B Trust Agreement, the Subordination Agent shall have made an Interest Drawing or a withdrawal from the Cash Collateral Account relating to a Liquidity Facility for such Class, with respect thereto in

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an aggregate amount sufficient to pay such interest and shall have distributed such amount to the Trustee entitled thereto).

(o) the definition of “Stated Interest Rate” in Section 1.1 of the Original Intercreditor Agreement shall be amended and restated in its entirety to read as follows:

Stated Interest Rate” means (i) with respect to the Class A Certificates, 4.150% per annum, (ii) with respect to the Class B Certificates, 6.250% per annum and (iii) with respect to the Class C Certificates, 6.125% per annum.
 
(p) the definition of “Substitute Aircraft” in Section 1.1 of the Original Intercreditor Agreement shall be amended by inserting the words “and the Class C Note Purchase Agreement” after the words “Note Purchase Agreement”;

(q) the definition of “Trust” in Section 1.1 of the Original Intercreditor Agreement shall be amended and restated in its entirety to read as follows:

Trust” means any of the Class A Trust, the Class B Trust or the Class C Trust.

(r) the definition of “Trust Agreement” in Section 1.1 of the Original Intercreditor Agreement shall be amended and restated in its entirety to read as follows:
 
Trust Agreement” means any of the Class A Trust Agreement, the Class B Trust Agreement or the Class C Trust Agreement.
 
(s) the definition of “Trustee” in Section 1.1 of the Original Intercreditor Agreement shall be amended and restated in its entirety to read as follows:
 
Trustee” means any of the Class A Trustee, the Class B Trustee or the Class C Trustee.
 
(t) Section 2.4(a) of the Original Intercreditor Agreement shall be amended and restated in its entirety to read as follows:

(a)  Notice of Special Payment.  Except as provided in Section 2.4(c) below, upon receipt by the Subordination Agent, as registered holder of the Equipment Notes, of any notice of a Special Payment (or, in the absence of any such notice, upon receipt by the Subordination Agent of a Special Payment), the Subordination Agent shall promptly give notice thereof to each Trustee and the Liquidity Providers.  The Subordination Agent shall promptly calculate the amount of the redemption or purchase of Equipment Notes, the amount of any Overdue Scheduled Payment or the proceeds of Equipment Notes or Collateral, as the case may be, comprising such Special Payment under the applicable Indenture or Indentures and shall promptly send to each Trustee and each 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
 

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Payment.  Amounts on deposit in the Special Payments Account shall be distributed in accordance with Sections 2.4(b) and 2.4(c) and Article III hereof, as applicable.
 
For the purposes of the application of any Equipment Note Special Payment distributed on a Special Distribution Date in accordance with Section 3.2 hereof, so long as no Indenture Default shall have occurred and be continuing under any Indenture:
 
(i) the amount of accrued and unpaid Liquidity Expenses that are not yet due that are payable pursuant to clause “second” thereof shall be multiplied by the Section 2.4 Fraction;
 
(ii) clause “third” thereof shall be deemed to read as follows:  “third, such (x) amount as shall be required to pay accrued and unpaid interest then in arrears on all Liquidity Obligations (at the rate, or in the amount, provided in the applicable Liquidity Facility) plus an amount equal to the amount of accrued and unpaid interest on the Liquidity Obligations not in arrears multiplied by the Section 2.4 Fraction, and (y) if a Special Termination Drawing has been made under any 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 Providers, pro rata on the basis of the amounts owed to each Liquidity Provider”;
 
(iii) clause “seventh” thereof shall be deemed to read as follows:  “seventh, such amount as shall be required to pay accrued, due and unpaid interest at the Stated Interest Rate on the outstanding Pool Balance of the Class A Certificates together with (without duplication) accrued and unpaid interest at the Stated Interest Rate on the outstanding principal amount of the Series A Equipment Notes held in the Class A Trust being redeemed, purchased or prepaid, in each case excluding interest, if any, payable with respect to the Deposits relating to the Class A Trust”;
 
(iv) clause “eighth” thereof shall be deemed to read as follows:  “eighth, such amount as shall be required to pay any accrued, due and unpaid Class B Adjusted Interest (excluding interest, if any, payable with respect to the Deposits relating to the Class B Trust) shall be distributed to the Class B Trustee”;
 
(v) clause “ninth” thereof shall be deemed to read as follows: “ninth; such amount as shall be required to pay any accrued, due and unpaid Class C Adjusted Interest shall be distributed to the Class C Trustee”;
 
(vi) clause “eleventh” thereof shall be deemed to read as follows:  “eleventh, such amount as shall be required to pay in full accrued, due and unpaid interest at the Stated Interest Rate on the outstanding Pool Balance of the Class B Certificates which was not previously paid pursuant to clause “eighth” above, together with (without duplication) accrued and unpaid interest at the Stated Interest Rate on the outstanding principal amount of the Series B Equipment Notes held in the Class B Trust and being redeemed, purchased or prepaid, in each case excluding interest, if any, payable with respect to the Deposits relating to the Class B Trust, shall be distributed to the Class B Trustee”; and
 

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(vii) clause “thirteenth” thereof shall be deemed to read as follows:  “thirteenth, such amount as shall be required to pay in full accrued, due and unpaid interest at the Stated Interest Rate on the outstanding Pool Balance of the Class C Certificates which was not previously paid pursuant to clause “ninth” above, together with (without duplication) accrued and unpaid interest at the Stated Interest Rate on the outstanding principal amount of the Series C Equipment Notes held in the Class C Trust and being redeemed, purchased or prepaid shall be distributed to the Class C Trustee”.
 
(u) The first sentence of Section 2.6(b) of the Original Intercreditor Agreement shall be amended and restated in its entirety to read as follows:
 
(b) The “Controlling Party” shall be (x) the Class A Trustee, (y) upon payment of Final Distributions to the holders of Class A Certificates, the Class B Trustee and (z) upon payment of Final Distributions to the holders of the Class B Certificates, the Class C Trustee.
 
(v) Section 3.1(a) of the Original Intercreditor Agreement shall be amended and restated in its entirety to read as follows:
 
(a)  No later than 3:00 P.M. (New York City time) on the Business Day immediately preceding each Distribution Date, each of the following Persons shall deliver to the Subordination Agent a Written Notice setting forth the following information as at the close of business on such Business Day:
 
(i) with respect to the Class A Certificates, the Class A Trustee shall separately set forth the amounts to be paid in accordance with clause “first” 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 “tenth” of Section 3.2 hereof;
 
(ii) with respect to the Class B Certificates, the Class B Trustee shall separately set forth the amounts to be paid in accordance with clause “first” of Section 3.2 hereof (to reimburse payments made by such Trustee or the Class B Certificateholders, as the case may be, pursuant to subclause (ii) or (iv) of clause “first”), subclauses (ii) and (iii) of clause “sixth” of Section 3.2 hereof and clauses “eighth”, “eleventh” and “twelfth” of Section 3.2 hereof;
 
(iii) with respect to the Class C Certificates, the Class C Trustee shall separately set forth the amounts to be paid in accordance with clause “first” of Section 3.2 hereof (to reimburse payments made by such Trustee or the Class C 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 “ninth”, “thirteenth” and “fourteenth” of Section 3.2 hereof;
 
(iv) with respect to each Liquidity Facility, the Liquidity Provider thereunder shall separately set forth the amounts to be paid to it in accordance with subclauses (iii)
 

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and (iv) of clause “first” of Section 3.2 hereof, clause “second” of Section 3.2 hereof, clause “third” of Section 3.2 hereof, clause “fourth” of Section 3.2 hereof and clause “fifth” of Section 3.2 hereof; and
 
(v) each Trustee shall set forth the amounts to be paid in accordance with clause “sixth” of Section 3.2 hereof.
 
(w) Section 3.1(e) of the Original Intercreditor Agreement shall be amended by replacing the word “eleventh” with the word “fourteenth”;
 
(x) Section 3.2 of the Original Intercreditor Agreement shall be amended as follows:
 
(i) by amending and restating clauses “ninth”, “tenth”, “eleventh” and “twelfth” thereof in their entirety to read as follows:
 
ninth, such amount as shall be required to pay unpaid Class C Adjusted Interest shall be distributed to the Class C Trustee;
 
tenth, such amount as shall be required to pay in full Expected Distributions to the holders of the Class A Certificates on such Distribution Date shall be distributed to the Class A Trustee;
 
eleventh, such amount as shall be required to pay in full accrued and unpaid interest at the Stated Interest Rate on the Pool Balance of the Class B Certificates which was not previously paid pursuant to clause “eighth” above (excluding interest, if any, payable with respect to the Deposits related to the Class B Trust) shall be distributed to the Class B Trustee;
 
twelfth, such amount as shall be required to pay in full Expected Distributions to the holders of the Class B Certificates on such Distribution Date shall be distributed to the Class B Trustee;
 
(ii) by inserting the following new clauses “thirteenth”, “fourteenth” and “fifteenth” after clause “twelfth” thereof:
 
thirteenth, such amount as shall be required to pay in full (i) accrued and unpaid interest at the Stated Interest Rate on the Pool Balance of the Class C Certificates which was not previously paid pursuant to clause “ninth” above and (ii) solely on the first Regular Distribution Date occurring after the initial issuance of the Class C Certificates, an amount equal to $611,137.19, shall be distributed to the Class C Trustee;
 
fourteenth, such amount as shall be required to pay in full Expected Distributions to the holders of the Class C Certificates on such Distribution Date shall be distributed to the Class C Trustee; and
 
fifteenth, the balance, if any, of any such amount remaining thereafter shall be held in the Collection Account for later distribution in accordance with this Article III.
 

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(y) Section 3.3(c) of the Original Intercreditor Agreement shall be amended by replacing in the proviso of such Section the words “‘ninth’ or ‘ele