SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
July 31, 2001
CONTINENTAL AIRLINES, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-09781 74-2099724
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
1600 Smith Street, Dept. HQSEO, Houston, Texas 77002
(Address of principal executive offices) (Zip Code)
(713) 324-5000
(Registrant's telephone number, including area code)
Item 7. Financial Statements and Exhibits.
(c) Exhibits. The Exhibit Index is hereby incorporated by reference. The
documents listed on the Exhibit Index are filed as Exhibits with reference to
the Registration Statement on Form S-3 (Registration No. 333-57188) of
Continental Airlines, Inc. The Registration Statement and the final Prospectus
Supplement, dated July 13, 2001, to the Prospectus, dated March 23, 2001, relate
to the offering of Continental Airlines, Inc.'s Class D Pass Through
Certificates, Series 2001-2.
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.
By /S/ JENNIFER L. VOGEL
--------------------------------
Jennifer L. Vogel
Vice President and General Counsel
August 10, 2001
EXHIBIT INDEX
1.1 Underwriting Agreement, dated July 13, 2001, among Morgan Stanley & Co.
Incorporated and Credit Suisse First Boston Corporation, as Underwriters,
Credit Suisse First Boston, New York Branch, as Depositary, and
Continental Airlines, Inc.
4.1 Trust Supplement No. 2001-2D-O, dated July 31, 2001, between Wilmington
Trust Company, as Trustee, and Continental Airlines, Inc. to Pass Through
Trust Agreement, dated as of September 25, 1997
4.2 Trust Supplement No. 2001-2D-S, dated July 31, 2001, between Wilmington
Trust Company, as Trustee, and Continental Airlines, Inc. to Pass Through
Trust Agreement, dated as of September 25, 1997
4.3 Amendment No. 1 to Intercreditor Agreement (1997-4), dated as of July 31,
2001, among Continental Airlines, Inc., Wilmington Trust Company, as
Trustee, ABN AMRO Bank N.V., Chicago Branch, as Liquidity Provider,
Westdeutsche Landesbank Girozentrale, New York Branch, as Liquidity
Provider, and Wilmington Trust Company, as Subordination Agent
4.4 Amendment No. 1 to Intercreditor Agreement (1998-1), dated as of July 31,
2001, among Continental Airlines, Inc., Wilmington Trust Company, as
Trustee, AIG Matched Funding Corp., as Liquidity Provider, and Wilmington
Trust Company, as Subordination Agent
4.5 Amendment No. 1 to Intercreditor Agreement (1998-3), dated as of July 31,
2001, among Continental Airlines, Inc., Wilmington Trust Company, as
Trustee, Westdeutsche Landesbank Girozentrale, New York Branch, as
Liquidity Provider, Morgan Stanley Capital Services, Inc., as Liquidity
Provider, and Wilmington Trust Company, as Subordination Agent
4.6 Amendment No. 1 to Intercreditor Agreement (1999-1), dated as of July 31,
2001, among Continental Airlines, Inc., Wilmington Trust Company, as
Trustee, Bayerische Landesbank Girozentrale, as Liquidity Provider, and
Wilmington Trust Company, as Subordination Agent
4.7 Amendment No. 1 to Intercreditor Agreement (1999-2), dated as of July 31,
2001, among Continental Airlines, Inc., Wilmington Trust Company, as
Trustee, Bayerische Landesbank Girozentrale, as Liquidity Provider, and
Wilmington Trust Company, as Subordination Agent
4.8 Amendment No. 1 to Intercreditor Agreement (2000-1), dated as of July 31,
2001, among Continental Airlines, Inc., Wilmington Trust Company, as
Trustee, Landesbank Hessen-Thuringen Girozentrale, as Liquidity Provider,
Morgan Stanley Capital Services, Inc., as Liquidity Provider, and
Wilmington Trust Company, as Subordination Agent
4.9 Amendment No. 1 to Intercreditor Agreement (2000-2), dated as of July 31,
2001, among Continental Airlines, Inc., Wilmington Trust Company, as
Trustee, Landesbank Hessen-Thuringen Girozentrale, as Liquidity Provider,
and Wilmington Trust Company, as Subordination Agent
4.10 Deposit Agreement, dated as of July 31, 2001, between Wells Fargo Bank
Northwest, National Association, as Escrow Agent, and Credit Suisse First
Boston, New York Branch, as Depositary
4.11 Escrow and Paying Agent Agreement, dated as of July 31, 2001, among Wells
Fargo Bank Northwest, National Association, as Escrow Agent, Morgan
Stanley & Co. Incorporated and Credit Suisse First Boston Corporation, as
Underwriters, Wilmington Trust Company, as Trustee, and Wilmington Trust
Company, as Paying Agent
4.12 Note Purchase Agreement, dated as of July 31, 2001, among Continental
Airlines, Inc., Wilmington Trust Company, as Trustee, and Subordination
Agent, Wells Fargo Bank Northwest, National Association, as Escrow Agent,
and Wilmington Trust Company, as Paying Agent
4.13 Form of Amendment to Owned Aircraft Participation Agreement between
Continental Airlines, Inc. and Wilmington Trust Company, as Mortgagee,
Subordination Agent and Trustee (Exhibit A-1 to Note Purchase Agreement)
4.14 Form of Amendment to Owned Aircraft Indenture between Continental
Airlines, Inc. and Wilmington Trust Company, as Securities Intermediary
and as Mortgagee (Exhibit A-2 to Note Purchase Agreement)
4.15 7.568% Continental Airlines Pass Through Certificate 2001-2D-O,
Certificate No. 1
23.1 Consent of Aircraft Information Services, Inc., dated July 13, 2001
23.2 Consent of AVITAS, Inc. dated July 13, 2001
23.3 Consent of Morten Beyer and Agnew, Inc., dated July 13, 2001
23.4 Consent of BK Associates Inc., dated July 13, 2001
23.5 Consent of AvSolutions, Inc., dated July 13, 2001
CONTINENTAL AIRLINES, INC., ISSUER
Class D Pass Through Certificates, Series 2001-2
UNDERWRITING AGREEMENT
July 13, 2001
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston Corporation
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
Continental Airlines, Inc., a Delaware corporation (the "Company"),
proposes that Wilmington Trust Company, as trustee (the "Trustee") under the
Original Trust (as defined below), issue and sell to each of you in accordance
with Schedule II hereto its pass through certificates (the "Offered
Certificates") in the aggregate principal amount and with the interest rate and
final distribution date set forth on Schedule I hereto on the terms and
conditions stated herein.
The Offered Certificates will be issued pursuant to a Pass Through
Trust Agreement, dated as of September 25, 1997 (the "Basic Agreement"), between
the Company and the Trustee, as supplemented with respect to the issuance of the
Offered Certificates by a separate Pass Through Trust Supplement to be dated as
of the Closing Date (as defined below) (the "Original Trust Supplement"),
between the Company and the Trustee (the Basic Agreement as supplemented by the
Original Trust Supplement being referred to herein as the "Original Pass Through
Trust Agreement"). The Original Trust Supplement is related to the creation and
administration of Continental Airlines Pass Through Trust 2001-2D-O (the
"Original Trust"). As used herein, unless the context otherwise requires, the
terms "Underwriters" and "you" shall mean Morgan Stanley & Co. Incorporated
("MS") and Credit Suisse First Boston Corporation.
The Company is entitled to sell Series D 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 1997-4, 1998-1, 1998-3, 1999-1, 1999-2, 2000-1 and 2000-2 (such
series of pass through certificates, collectively, the "Prior Series"). A
portion of the cash proceeds from the offering of the Offered Certificates will
be used by the Trustee to purchase Series D Equipment Notes on the Closing Date.
The cash proceeds of the offering of Offered Certificates by the
Original Trust, to the extent not used to purchase Series D Equipment Notes on
the Closing Date, will be paid to Wells Fargo Bank Northwest, National
Association, as escrow agent (the "Escrow Agent"), under an Escrow and Paying
Agent Agreement among the Escrow Agent, the Underwriters, the Trustee and
Wilmington Trust Company, as paying agent (the "Paying Agent"), for the benefit
of the holders of Offered Certificates (the "Escrow Agreement"). The Escrow
Agent will deposit such cash proceeds (the "Deposits") with Credit Suisse First
Boston, 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 D Equipment Notes from time to time
pursuant to a Note Purchase Agreement dated as of the Closing Date (the "Note
Purchase Agreement") among the Company, Wilmington Trust Company, as Trustee of
the Original Trust, as Subordination Agent under (and as defined in) each of the
Intercreditor Agreements (as defined in the Note Purchase Agreement) and as
Paying Agent, and the Escrow Agent. The Escrow Agent will issue receipts to be
attached to each Offered Certificate ("Escrow Receipts") representing each
holder's fractional undivided interest in amounts deposited with such Escrow
Agent with respect to the Offered Certificates and will pay to such holders
through the Paying Agent interest accrued on the Deposits and received by such
Paying Agent pursuant to the Deposit Agreement at a rate per annum equal to the
interest rate applicable to the Offered Certificates.
On the earlier of (i) the first Business Day following February 1,
2002 or, if later, the fifth Business Day following the Delivery Period
Termination Date (as defined in the Note Purchase Agreement) and (ii) the fifth
Business Day following the occurrence of a Triggering Event with respect to any
Prior Series (as defined in the Intercreditor Agreement for such Prior Series)
(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 (the
"Successor Trust") with substantially identical terms except as described in the
Prospectus Supplement (as hereinafter defined) governed by the Basic Agreement,
as supplemented with respect to the Offered Certificates by a separate Pass
Through Trust Supplement (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 Offered Certificate outstanding on the Trust
Transfer Date will represent the same interest in the Successor Trust as such
Offered Certificate represented in the Original Trust. Wilmington Trust Company
initially will also act as trustee of the Successor Trust (the "Successor
Trustee").
The holders of the Offered Certificates will be entitled to the
benefits of the Intercreditor Agreement under each Prior Series.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a shelf registration statement on Form S-3 (File No.
333-57188) relating to pass through certificates (such registration statement
(including the respective exhibits thereto and the respective documents filed by
the Company with the Commission pursuant to the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act"), that are incorporated by reference therein),
as amended at the date hereof, being herein referred to as the "Registration
Statement") and the offering thereof from time to time in accordance with Rule
415 of the Securities Act of 1933, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Securities Act"). The Registration
Statement has been declared effective by the Commission. A final prospectus
supplement reflecting the terms of the Offered Certificates, the terms of the
offering thereof and other matters relating to the Offered Certificates, as
further specified in Section 4(d) hereof, will be prepared and filed together
with the basic prospectus referred to below pursuant to Rule 424 under the
Securities Act (such prospectus supplement, in the form first filed on or after
the date hereof pursuant to Rule 424, being herein referred to as the
"Prospectus Supplement" and any such prospectus supplement in the form or forms
filed prior to the filing of the Prospectus Supplement being herein referred to
as a "Preliminary Prospectus Supplement"). The basic prospectus included in the
Registration Statement and relating to all offerings of pass through
certificates under the Registration Statement, as supplemented by the Prospectus
Supplement, and including the documents incorporated by reference therein, is
herein called the "Prospectus", except that, if such basic prospectus is amended
or supplemented on or prior to the date on which the Prospectus Supplement is
first filed pursuant to Rule 424, the term "Prospectus" shall refer to such
basic prospectus as so amended or supplemented and as supplemented by the
Prospectus Supplement. Any reference herein to the terms "amendment" or
"supplement" with respect to the Prospectus or any Preliminary Prospectus
Supplement shall be deemed to refer to and include any documents filed with the
Commission under the Exchange Act after the date the Prospectus is filed with
the Commission, or the date of such Preliminary Prospectus Supplement, as the
case may be, and incorporated therein by reference pursuant to Item 12 of Form
S-3 under the Securities Act.
Capitalized terms not otherwise defined in this Underwriting
Agreement (the "Agreement") shall have the meanings specified therefor in the
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 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. On the original effective date of the Registration
Statement, the Registration Statement did not include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and on
the date hereof and on the Closing Date, the Prospectus, as amended and
supplemented, if the Company shall have furnished any amendment or
supplement thereto, does not and will not include an untrue statement of a
material fact and does not and will not omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding
sentence does not apply to (x) statements in or omissions from the
Registration Statement, the Preliminary Prospectus or the Prospectus based
upon (A) written information furnished to the Company by any Underwriter
through any of you expressly for use therein ("Underwriter Information") or
(B) the Depositary Information (as hereinafter defined) or (y) statements
or omissions in that part of each Registration Statement which shall
constitute the Statement of Eligibility of the Trustee under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), on Form T-1.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the Securities Act, at the time they
were or hereafter, during the period mentioned in paragraph 4(a) below, 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 has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own, lease and operate its property and to
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
condition (financial or otherwise), business, properties or results of
operations of the Company and its consolidated subsidiaries taken as a
whole (a "Continental Material Adverse Effect").
(iv) Each of Continental Micronesia, Inc., Air Micronesia Inc. and
ExpressJet Airlines, Inc. (together, the "Subsidiaries") has been duly
incorporated and is an existing corporation in good standing under the laws
of the jurisdiction of its incorporation, with corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus; and each Subsidiary is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a Continental Material Adverse
Effect; all of the issued and outstanding capital stock of each Subsidiary
has been duly authorized and validly issued and is fully paid and
nonassessable; and, except as described in the Prospectus, each
Subsidiary's capital stock owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
(v) Except as described in the Prospectus, the Company is not in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or by
which it may be bound or to which any of its properties may be subject,
except for such defaults that would not have a Continental Material Adverse
Effect. The execution, delivery and performance of this Agreement and the
Operative Agreements to which the Company is or will be a party and the
consummation of the transactions contemplated herein, therein and in the
Intercreditor Agreements 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 or Intercreditor Agreement) upon any property or assets of the
Company pursuant to any indenture, loan agreement, contract, mortgage,
note, lease or other instrument to which the Company is a party or by which
the Company may be bound or to which any of the property or assets of the
Company is subject, which breach, default, lien, charge or encumbrance,
individually or in the aggregate, would have a Continental Material Adverse
Effect, nor will any such execution, delivery or performance result in any
violation of the provisions of the charter or by-laws of the Company or any
statute, any rule, regulation or order of any governmental agency or body
or any court having jurisdiction over the Company.
(vi) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
valid authorization, 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, therein
and in the Intercreditor Agreements, except (x) such as may be required
under the Securities Act, the Trust Indenture Act, the securities or "blue
sky" or similar laws of the various states and of foreign jurisdictions or
rules and regulations of the National Association of Securities Dealers,
Inc., and (y) filings or recordings with the Federal Aviation
Administration (the "FAA") and under the Uniform Commercial Code as is in
effect in the State of Texas, the State of Delaware and the State of Utah,
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 Owned Aircraft) or the applicable Funding Date (in the case
of any New Aircraft) for the Aircraft related to such Financing Agreements.
(vii) This Agreement has been duly authorized, executed and
delivered by the Company and the Operative Agreements to which the Company
will be a party will be duly executed and delivered by the Company on or
prior to the Closing Date or the applicable Funding Date, as the case may
be.
(viii) The Operative Agreements to which the Company is or will be a
party, when duly executed and delivered by the Company, assuming that such
Operative Agreements have been duly authorized, executed and delivered by,
and constitute the legal, valid and binding obligations of, each other
party thereto, will constitute valid and binding obligations of the Company
enforceable in accordance with their terms, except (w) as enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, (x) as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and (y) with respect to
indemnification and contribution provisions, as enforcement thereof may be
limited by applicable law, and subject, in the case of the Successor Pass
Through Trust Agreement, to the delayed effectiveness thereof as set forth
therein. The Basic Agreement as executed is substantially in the form filed
as an exhibit to the Company's current report on Form 8-K dated September
25, 1997 and has been duly qualified under the Trust Indenture Act. The
Offered Certificates and the Designated Agreements to which the Company is,
or is to be, a party will conform in all material respects to the
descriptions thereof in the Prospectus.
(ix) The consolidated financial statements incorporated by reference
in the Prospectus, together with the related notes thereto, present fairly
in all material respects the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the consolidated
results of operations and cash flows of the Company and its consolidated
subsidiaries for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, except as
otherwise stated therein and except that the unaudited financial statements
do not have all required footnotes. The financial statement schedules, if
any, incorporated by reference in the Prospectus present the information
required to be stated therein. The pro forma financial information and the
related notes thereto contained in the Company's Form 8-K filed with the
Commission on July 10, 2001 and incorporated by reference in the Prospectus
has been prepared in accordance with the applicable requirements of the
Securities Act and the Exchange Act, and is based upon good faith estimates
and assumptions believed by the Company to be reasonable.
(x) The Company is a "citizen of the United States" within the
meaning of Section 40102(a)(15) of Title 49 of the United States Code, as
amended, and holds an air carrier operating certificate issued pursuant to
Chapter 447 of Title 49 of the United States Code, as amended, for aircraft
capable of carrying 10 or more individuals or 6,000 pounds or more of
cargo. All of the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and
non-assessable.
(xi) On or prior to the Closing Date, the issuance of the Offered
Certificates will be duly authorized by the Trustee. When duly executed,
authenticated, issued and delivered in the manner provided for in the
Original Pass Through Trust Agreement and sold and paid for as provided in
this Agreement, the Offered Certificates will be legally and validly issued
and will be entitled to the benefits of the 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 Offered
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 related Escrow Agreement.
(xii) Except as disclosed in the Prospectus, the Company and the
Subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects except where the failure to have such title would
not have a Continental Material Adverse Effect; and except as disclosed in
the Prospectus, the Company and the Subsidiaries hold any leased real or
personal property under valid and enforceable leases with no exceptions
that would have a Continental Material Adverse Effect.
(xiii) Except as disclosed in the Prospectus, there is no action,
suit or proceeding before or by any governmental agency or body or court,
domestic or foreign, now pending or, to the knowledge of the Company,
threatened against the Company or any of its subsidiaries or any of their
respective properties that individually (or in the aggregate in the case of
any class of related lawsuits) could reasonably be expected to result in a
Continental Material Adverse Effect or that could reasonably be expected to
materially and adversely affect the consummation of the transactions
contemplated by this Agreement, the Operative Agreements or the
Intercreditor Agreements.
(xiv) Except as disclosed in the Prospectus, no labor dispute with
the employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent that could reasonably be expected to have a
Continental Material Adverse Effect.
(xv) 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 (other than as described under the caption
"Recent Developments"), except to the extent that the failure to so obtain,
declare or file would not have a Continental Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, (x) neither the Company
nor any of the Subsidiaries is in violation of any statute, rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances (collectively, "environmental laws"), owns or
operates any real property contaminated with any substance that is subject
to any environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
individually or in the aggregate is reasonably expected to have a
Continental Material Adverse Effect, and (y) the Company is not aware of
any pending investigation which might lead to such a claim that is
reasonably expected to have a Continental Material Adverse Effect.
(xvii) The accountants that examined and issued an auditors' report
with respect to the consolidated financial statements of the Company and
the financial statement schedules, if any, included or incorporated by
reference in the Registration Statement are independent public accountants
within the meaning of the Securities Act.
(xviii) 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 Offered 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.
(xix) This Agreement, the Operative Agreements to which the Company
is or will be a party (upon execution and delivery thereof) and the
Intercreditor Agreements will conform in all material respects to the
descriptions thereof contained in the Prospectus (other than, in the case
of the Financing Agreements, as described in the Prospectus).
(xx) No Appraiser is an affiliate of the Company or, to the
knowledge of the Company, has a substantial interest, direct or indirect,
in the Company. To the knowledge of the Company, none of the officers and
directors of any of such Appraisers are connected with the Company or any
of its affiliates as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
(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 Agreements -- Depositary"
(collectively, the "Depositary Information") in the Prospectus, as amended
and supplemented, if the Company shall have furnished any amendment or
supplement thereto, does not, and will not as of the Closing Date, contain
any untrue statement of a material fact.
(ii) The Depositary has been duly organized and is validly existing
in good standing under the laws of Switzerland 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 executed and delivered by the
Depositary, and the Deposit Agreement will be duly executed and delivered
by the Depositary on or prior to the Closing Date.
(vi) The Deposit Agreement, when duly executed and delivered by the
Depositary, assuming that such Deposit Agreement has been duly authorized,
executed and delivered by, and constitutes the legal, valid and binding
obligation of, the Escrow Agent, will constitute the legal, valid and
binding obligation of the Depositary enforceable in accordance with its
terms, except (x) as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws now or
hereinafter in effect relating to creditors' rights generally and (y) as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
(vii) Payments of interest and principal in respect of the Deposits
are not subject under the laws of Switzerland 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 Offered 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 OFFERED CERTIFICATES. (a) On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and the conditions herein set forth, the Company agrees to
cause the Trustee to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Trustee, at a purchase price of
100% of the principal amount thereof, the aggregate principal amount of Offered
Certificates set forth opposite the name of such Underwriter in Schedule II.
Concurrently with the issuance of the Offered Certificates, the Escrow Agent
shall issue and deliver to the Trustee the Escrow Receipts in accordance with
the terms of the Escrow Agreement, which Escrow Receipts shall be attached to
the Offered Certificates.
(b) The Company is advised by you that the Underwriters propose to
make a public offering of the Offered Certificates as set forth in the
Prospectus Supplement as soon after this Agreement has been entered into as in
your judgment is advisable. The Company is further advised by you that the
Offered Certificates are to be offered to the public initially at 100% of their
principal amount -- the public offering price -- plus accrued interest, if any,
and to certain dealers selected by the 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 Offered Certificates, including their respective undertakings to
distribute the Offered Certificates, the Company will pay to MS for the accounts
of the Underwriters the amount set forth in Schedule III hereto, which amount
shall be allocated among the Underwriters in the manner determined by you. Such
payment will be made on the Closing Date simultaneously with the issuance and
sale of the Offered Certificates (with attached Escrow Receipts) to the
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 Offered Certificates (with
attached Escrow Receipts) shall be made at the offices of Hughes Hubbard & Reed
LLP at One Battery Park Plaza, New York, New York 10004 at 10:00 A.M. on July
31, 2001 or such other date, time and place as may be agreed upon by the Company
and you (such date and time of delivery and payment for the Offered Certificates
(with attached Escrow Receipts) being herein called the "Closing Date").
Delivery of the Offered Certificates (with attached Escrow Receipts) issued by
the Original Trust shall be made to MS' 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 Offered
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 of, and in the manner specified by, the Trustee). The Offered
Certificates (with attached Escrow Receipts) issued by the Original Trust shall
be in the form of one or more fully registered global Offered Certificates, and
shall be deposited with the Trustee as custodian for DTC and registered in the
name of Cede & Co.
(e) The Company agrees to have the Offered Certificates (with
attached Escrow Receipts) available for inspection and checking by you in New
York, New York not later than 1:00 P.M. on the business day prior to the Closing
Date.
(f) It is understood that each Underwriter has authorized MS, on its
behalf and for its account, to accept delivery of, receipt for, and make payment
of the purchase price for, the Offered Certificates (with attached Escrow
Receipts) that it has agreed to purchase. MS, individually and not as a
representative, may (but shall not be obligated to) make payment of the purchase
price for the Offered 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 Offered Certificates pursuant to
this Agreement are subject to the following conditions:
(a) On the Closing Date, no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the Securities
Act and no proceedings therefor shall have been instituted or threatened by
the Commission.
(b) On the Closing Date, you shall have received an opinion of
Hughes Hubbard & Reed LLP, as counsel for the Company, dated the Closing
Date, in form and substance reasonably satisfactory to you and
substantially to the effect set forth in Exhibit A hereto.
(c) On the Closing Date, you shall have received an opinion of the
General Counsel of the Company, dated the Closing Date, in form and
substance reasonably satisfactory to you and substantially to the effect
set forth in Exhibit B hereto.
(d) On the Closing Date, you shall have received an opinion of
Richards, Layton & Finger, P.A., counsel for Wilmington Trust Company,
individually and as Trustee, Subordination Agent and Paying Agent, dated
the Closing Date, in form and substance reasonably satisfactory to you and
substantially to the effect set forth in Exhibit C hereto.
(e) On the Closing Date, you shall have received an opinion of Ray,
Quinney & Nebeker, counsel for the Escrow Agent, dated the Closing Date, in
form and substance reasonably satisfactory to you and substantially to the
effect set forth in Exhibit D hereto.
(f) On the Closing Date, you shall have received an opinion of Roger
Wiegley, New York in-house counsel for the Depositary, dated the Closing
Date, in form and substance reasonably satisfactory to you and
substantially to the effect set forth in Exhibit E hereto.
(g) On the Closing Date, you shall have received an opinion of
Giovanni Peditto, Swiss in-house counsel for the Depositary, dated the
Closing Date, in form and substance reasonably satisfactory to you and
substantially to the effect set forth in Exhibit F hereto.
(h) On the Closing Date, you 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 Offered
Certificates, the Registration Statement, 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 your judgment, is
material and adverse and that makes it, in your judgment, impracticable to
proceed with the completion of the public offering of the Offered
Certificates on the terms and in the manner contemplated by the Prospectus.
(j) You shall have received on the Closing Date a certificate, dated
the Closing Date and signed by the President or any Vice President of the
Company, to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the Closing
Date as if made on the Closing Date (except to the extent that they relate
solely to an earlier date, in which case they shall be true and accurate as
of such earlier date), that the Company has performed all its obligations
to be performed hereunder on or prior to the Closing Date and that,
subsequent to the execution and delivery of this Agreement, there shall not
have occurred any material adverse change, or any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries considered as one enterprise, except as set
forth in or contemplated by the Prospectus.
(k) You shall have received from Ernst & Young LLP a letter, dated
the date hereof, in form and substance satisfactory to you.
(l) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have been any downgrading in the
rating accorded any of the Company's securities (except for any pass
through certificates by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act, or any public announcement that any such organization
has under surveillance or review, in each case for possible change, its
ratings of any such securities other than pass through certificates (other
than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating).
(m) 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.
(n) At the Closing Date, each of the Operative Agreements (other
than the Assignment and Assumption Agreement and the Financing Agreements)
shall have been duly executed and delivered by each of the parties thereto;
and the representations and warranties of the Company contained in each of
such executed Operative Agreements shall be true and correct as of the
Closing Date (except to the extent that they relate solely to an earlier
date, in which case they shall be true and correct as of such earlier date)
and the Underwriters shall have received a certificate of the President or
a Vice President of the Company, dated as of the Closing Date, to such
effect.
(o) On the Closing Date, the Offered Certificates shall be rated (x)
not lower than "BBB--" by Standard & Poor's Ratings Services ("S&P") and
(y) not lower than "Baa3" by Moody's Investors Service, Inc. ("Moody's").
(p) 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).
(q) You shall have received from Ernst & Young LLP a letter, dated
the Closing Date, which meets the requirements of subsection (k) of this
Section, except that the specified date referred to in such subsection will
be a date not more than three business days prior to the Closing Date for
the purposes of this subsection.
(r) You shall have received a written confirmation from Moody's and
S&P, dated the Closing Date, that the terms and proposed issuance of the
Offered Certificates and the Series D Equipment Notes will not, with
respect to any Prior Series, result in a reduction, withdrawal or
suspension of the ratings of any Certificates (as defined in the
Intercreditor Agreement for such Prior Series) issued prior to the Closing
Date under such Prior Series.
The Company will furnish the Underwriters with such conformed copies
of such opinions, certificates, letters and documents as the Underwriters
reasonably request.
4. CERTAIN COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter as follows:
(a) During the period described in the following sentence of this
Section 4(a), the Company shall advise you promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus (except by
documents filed under the Exchange Act) and will not effect such amendment
or supplement (except by documents filed under the Exchange Act) without
your consent, which consent will not be unreasonably withheld. If, at any
time after the public offering of the Offered Certificates as the
Prospectus is required by law to be delivered in connection with sales of
the Offered Certificates by an Underwriter or a dealer, any event shall
occur as a result of which it is necessary to amend the Registration
Statement or amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading in any material respect, or if
it is necessary to amend the Registration Statement or amend or supplement
the Prospectus to comply with law, the Company shall prepare and furnish,
at its own expense, to the Underwriters and to the dealers (whose names and
addresses you will furnish to the Company) to which Offered Certificates
may have been sold by 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 is delivered to a purchaser,
be misleading in any material respect or amendments or supplements to the
Registration Statement or the Prospectus so that the Registration Statement
or the Prospectus, as so amended or supplemented, will comply with law and
cause such amendments or supplements to be filed promptly with the
Commission.
(b) During the period mentioned in paragraph (a) above, the Company
shall notify each Underwriter immediately of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the transmittal to the
Commission for filing of any supplement to the Prospectus or any document
that would as a result thereof be incorporated by reference in the
Prospectus, (iii) the receipt of any comments from the Commission with
respect to the Registration Statement, the Prospectus or the Prospectus
Supplement, (iv) any request by the Commission for any amendment to the
Registration Statement or any supplement to the Prospectus or for
additional information relating thereto or to any document incorporated by
reference in the Prospectus and (v) receipt by the Company of any notice of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, the suspension of the
qualification of the Offered Certificates for offering or sale in any
jurisdiction, or the institution or threatening of any proceeding for any
of such purposes; and the Company agrees to use every reasonable effort to
prevent the issuance of any such stop order and, if any such order is
issued, to obtain the lifting thereof at the earliest possible moment and
the Company shall (subject to the proviso to Section 4(e)) 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 of the Underwriters as many conformed copies of the
Registration Statement (as originally filed) and all amendments and
supplements to such documents (excluding all exhibits and documents filed
therewith or incorporated by reference therein) and as many conformed
copies of all consents and certificates of experts, in each case as soon as
available and in such quantities as each of the Underwriters reasonably
requests.
(d) Promptly following the execution of this Agreement, the Company
will prepare a Prospectus Supplement that complies with the Securities Act
and that sets forth the principal amount of the Offered Certificates and
their terms (including, without limitation, terms of the Escrow Receipts
attached to the Offered Certificates) not otherwise specified in the
Preliminary Prospectus Supplement or the basic prospectus included in the
Registration Statement, the name of each Underwriter and the principal
amount of the Offered Certificates that each severally has agreed to
purchase, the price at which the Offered Certificates are to be purchased
by the Underwriters from the Trustee, any initial public offering price,
any selling concession and reallowance and any delayed delivery
arrangements, and such other information as you and the Company deem
appropriate in connection with the offering of the Offered Certificates.
The Company will timely transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company shall, in cooperation with the Underwriters,
endeavor to arrange for the qualification of the Offered Certificates for
offer and sale under the applicable securities or "blue sky" laws of such
jurisdictions in the United States as you reasonably designate and will
endeavor to maintain such qualifications in effect so long as required for
the distribution of the Offered Certificates; PROVIDED that the Company
shall not be required to (i) qualify as a foreign corporation or as a
dealer in securities, (ii) file a general consent to service of process or
(iii) subject itself to taxation in any such state.
(f) During the period of ten years after the Closing Date, the
Company will promptly furnish to each of the Underwriters, upon request,
copies of all Annual Reports on Form 10-K and any definitive proxy
statement of the Company filed with the Commission; PROVIDED that providing
a website address at which such Annual Reports and any such definitive
proxy statements may be accessed will satisfy this clause (f).
(g) Between the date of this Agreement and the Closing Date, the
Company shall not, without your prior written consent, offer, sell, or
enter into any agreement to sell (as public debt securities registered
under the Securities Act (other than the Offered Certificates) or as debt
securities which may be resold in a transaction exempt from the
registration requirements of the Securities Act in reliance on Rule 144A
thereunder and which are marketed through the use of a disclosure document
containing substantially the same information as a prospectus for similar
debt securities registered under the Securities Act), any equipment notes,
pass through certificates, equipment trust certificates or equipment
purchase certificates secured by aircraft owned or leased by the Company
(or rights relating thereto).
5. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter, and each Person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such action
or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
the Preliminary Prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon Underwriter Information or Depositary Information; PROVIDED, HOWEVER, that
the foregoing indemnity agreement with respect to the Preliminary Prospectus
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased the Offered
Certificates, or to the benefit of any person controlling such Underwriter, if a
copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of such
Offered Certificates to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities unless such failure to deliver the Prospectus was a
result of noncompliance by the Company with its delivery requirements set forth
in Section 4(a).
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, each of the 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 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. The
indemnifying party, upon request of the indemnified party, shall, and the
indemnifying party may elect to, retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and the indemnifying party
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them, or (iii) the indemnifying party shall have
failed to retain counsel as required by the prior sentence to represent the
indemnified party within a reasonable amount of time. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by you in the case
of parties indemnified pursuant to paragraph (a) above and by the Company in the
case of parties indemnified pursuant to paragraph (b) above. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested in writing an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, 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 Section 5(c), settle or
compromise any proceeding described in this paragraph 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 5 is required to be made but is unavailable to an
indemnified party or insufficient in respect of any losses, claims, damages or
liabilities, then the applicable indemnifying party under such paragraph, in
lieu of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the offering of the Offered Certificates
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company 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 the Offered Certificates
shall be deemed to be in the same respective proportions as the proceeds from
the offering of the Offered Certificates received by the Original Trust (before
deducting expenses) less total underwriting discounts and commissions paid to
the Underwriters by the Company, and the total underwriting discounts and
commissions paid to the Underwriters by the Company, as set forth on the cover
of the Prospectus, bear to the aggregate public offering price of the Offered
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 Underwriter, 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 5 are several in proportion
to the respective principal amount of Offered 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 5 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 5, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Offered Certificates
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that 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. The indemnity and contribution provisions contained in this
Section 5 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 Offered
Certificates. The remedies provided for in this Section 5 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
6. DEFAULT OF UNDERWRITERS. If any Underwriter defaults in its
obligations to purchase Offered Certificates hereunder and the aggregate
principal amount of the Offered Certificates that such defaulting Underwriter
agreed but failed to purchase does not exceed 10% of the total principal amount
of the Offered Certificates, the other Underwriter may make arrangements
satisfactory to the Company for the purchase of such Offered Certificates by
other persons, including the non-defaulting Underwriter, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriter shall
be obligated severally, in proportion to its respective commitment hereunder, to
purchase the Offered Certificates that such defaulting Underwriter agreed but
failed to purchase. If an Underwriter so defaults and the aggregate principal
amount of the Offered Certificates with respect to which such default or
defaults occurs exceeds 10% of the total principal amount of the Offered
Certificates and arrangements satisfactory to you and the Company for purchase
of such Offered 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 5. 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.
7. 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 Offered
Certificates. If for any reason the purchase of the Offered 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 9 and the respective
obligations of the Company and the Underwriters pursuant to Section 5 shall
remain in effect. If the purchase of the Offered Certificates by the
Underwriters is not consummated for any reason other than solely because of the
occurrence of the termination of the Agreement pursuant to Section 6 or 8, the
Company will reimburse the Underwriters for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of such Offered Certificates and comply
with its obligations under Section 9.
8. TERMINATION. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange or the National Association
of Securities Dealers, Inc., (ii) trading of any securities of the Company shall
have been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your judgment, is material
and adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event singly or together with any other such event makes it,
in your judgment, impracticable to market the Offered Certificates on the terms
and in the manner contemplated in the Prospectus.
9. 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 Offered
Certificates for offer and sale under the applicable securities or "blue
sky" laws of such jurisdictions in the United States as you reasonably
designate (including filing fees and fees and disbursements of counsel for
the Underwriters in connection therewith), (B) endeavoring to maintain such
qualifications in effect so long as required for the distribution of the
Offered Certificates, (C) the review (if any) of the offering of the
Offered Certificates by the National Association of Securities Dealers,
Inc., (D) the determination of the eligibility of the Offered Certificates
for investment under the laws of such jurisdictions as the Underwriters may
designate and (E) the preparation and distribution of any blue sky or legal
investment memorandum by 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 Offered 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 Prospectus in order to make
the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not materially misleading or (B)
amendments or supplements to the Registration Statement or the Prospectus
so that the Registration Statement or the 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) 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, the Preliminary
Prospectus and the Prospectus and any amendments thereof and supplements
thereto, and the cost of furnishing copies thereof to the Underwriters;
(iv) expenses incurred in connection with the preparation, printing
and distribution of this Agreement, the Offered Certificates and the
Operative Agreements;
(v) expenses incurred in connection with the delivery of the Offered
Certificates to the 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 Loan
Trustees, the Subordination Agent, the Paying Agent, the Trustee, the
Escrow Agent, the Depositary and the reasonable fees and disbursements of
their respective counsel;
(viii) fees charged by rating agencies for rating the Offered
Certificates (including annual surveillance fees related to the Offered
Certificates as long as they are outstanding);
(ix) all reasonable fees and disbursements of counsel for the
Underwriters in excess of $170,000;
(x) all fees and expenses relating to appraisals of the Aircraft;
and
(xi) all other reasonable out-of-pocket expenses incurred by the
Underwriters in connection with the transactions contemplated by this
Agreement.
10. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or sent by facsimile
transmission and confirmed to the Underwriters, c/o Morgan Stanley & Co.
Incorporated, 1585 Broadway, New York, NY 10036, Attention: Equipment Finance
Group, facsimile number (212) 761-0786 and c/o Credit Suisse First Boston
Corporation, Eleven Madison Avenue, New York, NY 10010, Attention: Transaction
Advisory Group, facsimile number (212) 892-0776 and, if sent to the Company,
will be mailed, delivered or sent by facsimile transmission and confirmed to it
at 1600 Smith Street, HQSEO, Houston, TX 77002, Attention: Treasurer, facsimile
number (713) 324-2447; PROVIDED, HOWEVER, that any notice to an Underwriter
pursuant to Section 5 will be sent by facsimile transmission or delivered and
confirmed to such Underwriter.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 5, and no other person will have any
right or obligation hereunder.
12. REPRESENTATION OF UNDERWRITERS. MS may act for the several
Underwriters in connection with this purchase, and any action under this
Agreement taken by MS will be binding upon all the Underwriters.
13. 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.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
15. JURISDICTION. Each of the parties hereto agrees that any legal
suit, action or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby may be instituted in any U.S. federal or New
York State court in the Borough of Manhattan in the City of New York and each of
the parties hereto hereby irrevocably waives any objection which it may now or
hereafter have to the laying of venue of any such proceeding, and irrevocably
submits to the jurisdiction of such courts, with respect to actions brought
against it as defendant, in any suit, action or proceeding. Each of the parties
to this Agreement agrees that a final judgment in any such suit, action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law in accordance with
applicable law.
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:
--------------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written
MORGAN STANLEY & CO. INCORPORATED
By:
---------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
---------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, New York Branch
as Depositary
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
SCHEDULE I
(Class D Pass Through Certificates, Series 2001-2)
CONTINENTAL AIRLINES, INC.
Pass Through Aggregate Final
Certificate Principal Maturity
DESIGNATION AMOUNT INTEREST RATE DATE
----------- ------ ------------- --------
2001-2D $200,000,000 7.568% December 1, 2006
SCHEDULE II
UNDERWRITERS 2001-2D
------------ -------
Morgan Stanley & Co. $100,000,000
Incorporated
1585 Broadway
New York, NY 10036
Credit Suisse First $100,000,000
Boston Corporation
Eleven Madison Avenue
New York, NY 10010
SCHEDULE III
CONTINENTAL AIRLINES, INC.
Underwriting commission
and other compensation: $1,300,000
Closing date, time and location: July 31, 2001
10:00 A.M.,
New York time
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, New York 10004
TRUST SUPPLEMENT No. 2001-2D-O
Dated July 31, 2001
between
WILMINGTON TRUST COMPANY
as Trustee,
and
CONTINENTAL AIRLINES, INC.
to
PASS THROUGH TRUST AGREEMENT
Dated as of September 25, 1997
$200,000,000
Continental Airlines Pass Through Trust 2001-2D-O
7.568% Continental Airlines
Pass Through Certificates,
Series 2001-2D-O
This Trust Supplement No. 2001-2D-O, dated as of July 31, 2001
(herein called the "TRUST SUPPLEMENT"), between Continental Airlines, Inc., a
Delaware corporation (the "COMPANY"), and Wilmington Trust Company (the
"TRUSTEE"), to the Pass Through Trust Agreement, dated as of September 25, 1997,
between the Company and the Trustee (the "BASIC AGREEMENT").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Basic Agreement, unlimited as to the aggregate
principal amount of Certificates (unless otherwise specified herein, capitalized
terms used herein without definition having the respective meanings specified in
the Basic Agreement) which may be issued thereunder, has heretofore been
executed and delivered;
WHEREAS, under the terms of seven series of Continental Airlines
pass through certificates previously issued and designated Series 1997-4,
1998-1, 1998-3, 1999-1, 1999-2, 2000-1 and 2000-2 (the "PRIOR SERIES"), the
Company is entitled to sell Series D Equipment Notes secured by aircraft
financed under each Prior Series;
WHEREAS, the Company has purchased the 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 pursuant
to the Aircraft Purchase Agreement for the delivery of the sixteen aircraft
listed in Schedule II hereto (together with any aircraft substituted therefor in
accordance with the Aircraft Purchase Agreement prior to the delivery thereof,
the "ELIGIBLE AIRCRAFT"), and the Company expects to purchase after the Issuance
Date utilizing the proceeds of (i) the sale of secured equipment notes to be
acquired by the pass through trustees under the 2000-2 Note Purchase Agreement
and (ii) the Series D Equipment Notes purchased pursuant to the Agreement two of
the ten Boeing 737-824 aircraft and two of the six Boeing 737-924 aircraft
included in the Eligible Aircraft (such aircraft to be financed hereunder, the
"NEW AIRCRAFT");
WHEREAS, in the case of each Owned Aircraft, the Company has issued
pursuant to an Indenture, on a recourse basis, Equipment Notes to finance a
portion of the purchase price of such Owned Aircraft, and will issue on the
Issuance Date pursuant to such Indenture, on a recourse basis, Series D
Equipment Notes;
WHEREAS, in the case of each New Aircraft or Substitute Aircraft,
the Company will issue pursuant to an Indenture, on a recourse basis, Equipment
Notes, including Series D Equipment Notes, to finance a portion of the purchase
price of such New Aircraft or Substitute Aircraft;
WHEREAS, the Trustee hereby declares the creation of this
Continental Airlines Pass Through Trust 2001-2D-O (the "APPLICABLE TRUST") for
the benefit of the Applicable Certificateholders, and the initial Applicable
Certificateholders as the grantors of the Applicable Trust, by their respective
acceptances of the Applicable Certificates, join in the creation of the
Applicable Trust with the Trustee;
WHEREAS, all Certificates to be issued by the Applicable Trust will
evidence fractional undivided interests in the Applicable Trust and will convey
no rights, benefits or interests in respect of any property other than the Trust
Property except for those Certificates to which an Escrow Receipt has been
affixed;
WHEREAS, the Escrow Agent and the Underwriters have
contemporaneously herewith entered into an Escrow Agreement with the Escrow
Paying Agent pursuant to which the Underwriters have delivered to the Escrow
Agent the proceeds from the sale of the Applicable Certificates, to the extent
not used to purchase Series D 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
D Equipment Notes as the New Aircraft or Substitute Aircraft are delivered by
Boeing under the Aircraft Purchase Agreement from time to time prior to the
Delivery Period Termination Date;
WHEREAS, the Escrow Agent on behalf of the Applicable
Certificateholders has contemporaneously herewith entered into a Deposit
Agreement with the Depositary under which the Deposits referred to therein will
be made and from which it will withdraw funds to allow the Trustee to purchase
Series D Equipment Notes to be issued with respect to any New Aircraft or
Substitute Aircraft 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, (i) in
the case of any Owned Aircraft, on the Issuance Date or (ii) in the case of any
New Aircraft or Substitute Aircraft, upon the financing of such New Aircraft or
Substitute Aircraft, 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, or using funds withdrawn under the Escrow Agreement, in
the case of any New Aircraft or Substitute Aircraft, shall purchase one or more
Series D Equipment Notes with respect to such Aircraft having the same interest
rate as, and final maturity date not later than the final Regular Distribution
Date of, the Applicable Certificates issued hereunder and shall hold such Series
D Equipment Notes in trust for the benefit of the Applicable Certificateholders;
WHEREAS, all of the conditions and requirements necessary to make
this Trust Supplement, when duly executed and delivered, a valid, binding and
legal instrument in accordance with its terms and for the purposes herein
expressed, have been done, performed and fulfilled, and the execution and
delivery of this Trust Supplement in the form and with the terms hereof have
been in all respects duly authorized;
WHEREAS, this Trust Supplement is subject to the provisions of the
Trust Indenture Act of 1939, as amended, and shall, to the extent applicable, be
governed by such provisions;
NOW THEREFORE, in consideration of the premises herein, it is agreed
between the Company and the Trustee as follows:
ARTICLE I
THE CERTIFICATES
Section 1.01. THE CERTIFICATES. There is hereby created a series of
Certificates to be issued under the Agreement to be distinguished and known as
"7.568% Continental Airlines Pass Through Certificates, Series 2001-2D-O"
(hereinafter defined as the "APPLICABLE CERTIFICATES"). Each Applicable
Certificate represents a fractional undivided interest in the Applicable Trust
created hereby. The Applicable Certificates shall be the only instruments
evidencing a fractional undivided interest in the Applicable Trust.
The terms and conditions applicable to the Applicable Certificates
are as follows:
(a) The aggregate principal amount of the Applicable Certificates
that shall be authenticated under the Agreement (except for Applicable
Certificates authenticated and delivered pursuant to Sections 3.03, 3.04,
3.05 and 3.06 of the Basic Agreement) is $200,000,000.
(b) The Regular Distribution Dates with respect to any payment of
Scheduled Payments means June 1 and December 1 of each year, commencing on
December 1, 2001, until payment of all of the Scheduled Payments to be made
under the Series D Equipment Notes has been made.
(c) The Special Distribution Dates with respect to the Applicable
Certificates means any Business Day on which a Special Payment is to be
distributed pursuant to the Agreement.
(d) At the Escrow Agent's request under the Escrow Agreement, the
Trustee shall affix the corresponding Escrow Receipt to each Applicable
Certificate. In any event, any transfer or exchange of any Applicable
Certificate shall also effect a transfer or exchange of the related Escrow
Receipt. Prior to the Final Withdrawal Date, no transfer or exchange of any
Applicable Certificate shall be permitted unless the corresponding Escrow
Receipt is attached thereto and also is so transferred or exchanged. By
acceptance of any Applicable Certificate to which an Escrow Receipt is
attached, each Holder of such an Applicable Certificate acknowledges and
accepts the restrictions on transfer of the Escrow Receipt set forth herein
and in the Escrow Agreement.
(e) (i) The Applicable Certificates shall be in the form attached
hereto as Exhibit A. Any Person acquiring or accepting an Applicable
Certificate or an interest therein will, by such acquisition or acceptance,
be deemed to represent and warrant to and for the benefit of the Company
that either (i) the assets of an employee benefit plan subject to Title I
of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or of a plan subject to Section 4975 of the Internal Revenue
Code of 1986, as amended (the "CODE"), have not been used to purchase
Applicable Certificates or an interest therein or (ii) the purchase and
holding of Applicable Certificates or an interest therein is exempt from
the prohibited transaction restrictions of ERISA and the Code pursuant to
one or more prohibited transaction statutory or administrative exemptions.
(ii) The Applicable Certificates shall be Book-Entry Certificates
and shall be subject to the conditions set forth in the Letter of
Representations between the Company and the Clearing Agency attached hereto
as Exhibit B.
(f) The "Participation Agreements" as defined in this Trust
Supplement are the "Note Purchase Agreements" referred to in the Basic
Agreement.
(g) The Applicable Certificates are subject to the Intercreditor
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 "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.
(k) The Equipment Notes to be acquired and held in the Applicable
Trust, and the related Aircraft and Note Documents, are described in the
NPA.
ARTICLE II
DEFINITIONS
Section 2.01. DEFINITIONS. For all purposes of the Basic Agreement
as supplemented by this Trust Supplement, the following capitalized terms have
the following meanings (any term used herein which is defined in both this Trust
Supplement and the Basic Agreement shall have the meaning assigned thereto in
this Trust Supplement for purposes of the Basic Agreement as supplemented by
this Trust Supplement):
AGREEMENT: Has the meaning specified in the recitals hereto.
AIRCRAFT: Means each of the Owned Aircraft and each of the New
Aircraft or the Substitute Aircraft in respect of which a Participation
Agreement is or is to be, as the case may be, entered into in accordance
with the NPA (or any substitute aircraft, including engines therefor, owned
by the Company and securing one or more Series D Equipment Notes).
AIRCRAFT PURCHASE AGREEMENT: Has the meaning specified in the NPA.
APPLICABLE CERTIFICATE: Has the meaning specified in Section 1.01 of
this Trust Supplement.
APPLICABLE CERTIFICATEHOLDER: Means the Person in whose name an
Applicable Certificate is registered on the Register for the Applicable
Certificates.
APPLICABLE DELIVERY DATE: Has the meaning specified in Section 5.01(b)
of this Trust Supplement.
APPLICABLE PARTICIPATION AGREEMENT: Has the meaning specified in
Section 5.01(b) of this Trust Supplement.
APPLICABLE TRUST: Has the meaning specified in the recitals hereto.
ASSIGNMENT AND ASSUMPTION AGREEMENT: Means the assignment and
assumption agreement substantially in the form of Exhibit C hereto executed
and delivered in accordance with Section 7.01 of this Trust Supplement.
BASIC AGREEMENT: Has the meaning specified in the first paragraph of
this Trust Supplement.
BOEING: Means The Boeing Company.
BUSINESS DAY: Means any day other than a Saturday, a Sunday or a day
on which commercial banks are required or authorized to close in Houston,
Texas, New York, New York, Salt Lake City, Utah or, so long as any
Applicable Certificate is Outstanding, the city and state in which the
Trustee or any Loan Trustee maintains its Corporate Trust Office or
receives and disburses funds.
COMPANY: Has the meaning specified in the first paragraph of this
Trust Supplement.
CONTROLLING PARTY: Has the meaning specified in the 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 with respect to
any Prior Series.
DELIVERY NOTICE: Has the meaning specified in the NPA.
DELIVERY PERIOD TERMINATION DATE: Means the earlier of (a) February 1,
2002, or, if the Series D Equipment Notes relating to all of the New
Aircraft (or Substitute Aircraft in lieu thereof) have not been purchased
by the Applicable Trust on or prior to such date due to any reason beyond
the control of the Company and not occasioned by the Company's fault or
negligence, May 1, 2002 (provided that, if a labor strike occurs or
continues at Boeing after November 28, 2000 on or prior to either or both
of such dates referred to in this clause (a), such date or dates on or
following November 28, 2000 shall be extended by adding thereto the number
of days that such strike continued in effect after November 28, 2000), and
(b) the date on which Series D Equipment Notes issued with respect to all
of the New Aircraft (or Substitute Aircraft in lieu thereof) have been
purchased by the Applicable Trust in accordance with the NPA.
DEPOSIT AGREEMENT: Means the Deposit Agreement dated as of the
Issuance Date relating to the Applicable Certificates between the
Depositary and the Escrow Agent, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms.
DEPOSITARY: Means Credit Suisse First Boston, a banking institution
organized under the laws of Switzerland, acting through its New York
Branch.
DEPOSITS: Has the meaning specified in the Deposit Agreement.
DISTRIBUTION DATE: Means any Regular Distribution Date or Special
Distribution Date as the context requires.
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, Wells Fargo Bank Northwest, National
Association, and any replacement or successor therefor appointed in
accordance with the Escrow Agreement.
ESCROW AGREEMENT: Means the Escrow and Paying Agent Agreement dated as
of the Issuance Date 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 MATURITY DATE: Means December 1, 2006.
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 Amendment applicable to such Prior
Series, as further amended, supplemented or otherwise modified from time to
time in accordance with its terms.
INTERCREDITOR AMENDMENT: Means, for each Prior Series, the Amendment
No. 1 to Intercreditor Agreement for such Prior Series dated as of the
Issuance Date among the Company, the Trustee, the other trustees party
thereto, the liquidity providers relating to the pass through certificates
issued under such Prior Series and Wilmington Trust Company, as
subordination agent and as trustee under the Intercreditor Agreement for
such Prior Series.
INVESTORS: Means the Underwriters together with all subsequent
beneficial owners of the Applicable Certificates.
ISSUANCE DATE: Has the meaning specified in the recitals hereto.
LEASED AIRCRAFT INDENTURE: Means each "Leased Aircraft Indenture" as
defined in the Intercreditor Agreement for any Prior Series.
NEW AIRCRAFT: Has the meaning specified in the recitals hereto.
NOTE DOCUMENTS: Means the Series D Equipment Notes and, with respect
to any such Series D Equipment Note, the Indenture and the Participation
Agreement relating to such Series D Equipment Note.
NOTICE OF PURCHASE WITHDRAWAL: Has the meaning specified in the
Deposit Agreement.
NPA: Means the Note Purchase Agreement dated as of July 31, 2001 among
the Trustee, the Company, the Escrow Agent, the Escrow Paying Agent and
Wilmington Trust Company, as subordination agent under each of the
Intercreditor Agreements, providing for, among other things, the purchase
of Series D Equipment Notes by the Trustee on behalf of the Trust, as the
same may be further amended, supplemented or otherwise modified from time
to time, in accordance with its terms.
OWNED AIRCRAFT: Has the meaning specified in the recitals hereto.
OWNED AIRCRAFT INDENTURE: Means each "Owned Aircraft Indenture" as
defined in the Intercreditor Agreement for any Prior Series.
PA AMENDMENT: Has the meaning specified in the NPA.
PARTICIPATION AGREEMENT: Means (i) in the case of each Owned Aircraft,
the Participation Agreement entered into prior to the Issuance Date
relating to such Owned Aircraft, as amended by the related PA Amendment
entered into pursuant to the NPA, as the same may be further amended,
supplemented or otherwise modified in accordance with its terms, and (ii)
in the case of each New Aircraft or Substitute Aircraft, a Participation
Agreement to be entered into after the Issuance Date by the Trustee
pursuant to the NPA, as the same may be amended, supplemented or otherwise
modified in accordance with its terms.
POOL BALANCE: Means, as of any date, (i) the original aggregate face
amount of the Applicable Certificates less (ii) the aggregate amount of all
payments made in respect of such Applicable Certificates or in respect of
Deposits other than payments made in respect of interest or premium thereon
or reimbursement of any costs or expenses incurred in connection therewith.
The Pool Balance as of any Distribution Date shall be computed after giving
effect to any special distribution with respect to unused Deposits, payment
of principal of the Series D Equipment Notes or payment with respect to
other Trust Property and the distribution thereof to be made on that date.
POOL FACTOR: Means, as of any Distribution Date, the quotient (rounded
to the seventh decimal place) computed by dividing (i) the Pool Balance by
(ii) the original aggregate face amount of the Applicable Certificates. The
Pool Factor as of any Distribution Date shall be computed after giving
effect to any special distribution with respect to unused Deposits, payment
of principal of the Series D Equipment Notes or payments with respect to
other Trust Property and the distribution thereof to be made on that date.
PRIOR SERIES: Has the meaning specified in the recitals hereto.
PROSPECTUS SUPPLEMENT: Means the final Prospectus Supplement dated
July 13, 2001 relating to the offering of the Applicable Certificates.
PTC EVENT OF DEFAULT: Means, with respect to any Prior Series, "PTC
Event of Default" as defined in the Intercreditor Agreement for such Prior
Series.
RELATED PASS THROUGH TRUST AGREEMENT: Means the Basic Agreement as
supplemented by the Trust Supplement No. 2001-2D-S dated the date hereof
relating to the Continental Airlines Pass Through Trust 2001-2D-S and
entered into by the Company and the 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 2001-2D-S, to
be formed under the Related Pass Through Trust Agreement.
RELATED TRUSTEE: Means the trustee under the Related Pass Through
Trust Agreement.
SCHEDULED DELIVERY DATE: Has the meaning specified in the NPA.
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 D 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, Trust Indenture Estate
(as defined in each Leased Aircraft Indenture) or Collateral (as defined in
each Owned Aircraft Indenture).
SUBSTITUTE AIRCRAFT: Has the meaning specified in the NPA.
TRANSFER DATE: Has the meaning specified in Section 7.01 of this Trust
Supplement.
TRIGGERING EVENT: Means, with respect to any Prior Series, "Triggering
Event" as defined in the Intercreditor Agreement for such Prior Series.
TRUST PROPERTY: Means (i) subject to the applicable Intercreditor
Agreement, each Series D Equipment Note 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 D
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, except for the right to direct
withdrawals for the purchase of Series D 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.
2000-2 NOTE PURCHASE AGREEMENT: Has the meaning specified in the NPA.
UNDERWRITERS: Means Morgan Stanley & Co. Incorporated and Credit
Suisse First Boston Corporation.
UNDERWRITING AGREEMENT: Means the Underwriting Agreement dated July
13, 2001 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
STATEMENTS TO CERTIFICATEHOLDERS
Section 3.01. STATEMENTS TO APPLICABLE CERTIFICATEHOLDERS. (a) On
each Distribution Date, the Trustee will include with each distribution to
Applicable Certificateholders of a Scheduled Payment or Special Payment, as the
case may be, a statement setting forth the information provided below (in the
case of a Special Payment, reflecting in part the information provided by the
Escrow Paying Agent under the Escrow Agreement). Such statement shall set forth
(per $1,000 face amount Applicable Certificate as to (ii), (iii), (iv) and (v)
below) the following information:
(i) the aggregate amount of funds distributed on such Distribution
Date under the Agreement and under the Escrow Agreement, indicating the
amount allocable to each source;
(ii) the amount of such distribution under the Agreement allocable
to principal and the amount allocable to premium, if any;
(iii) the amount of such distribution under the Agreement allocable
to interest;
(iv) the amount of such distribution under the Escrow Agreement
allocable to interest;
(v) the amount of such distribution under the Escrow Agreement
allocable to unused Deposits, if any; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Applicable Certificates registered in the name
of a Clearing Agency, on the Record Date prior to each Distribution Date, the
Trustee will request from such Clearing Agency a securities position listing
setting forth the names of all Clearing Agency Participants reflected on such
Clearing Agency's books as holding interests in the Applicable Certificates on
such Record Date. On each Distribution Date, the Trustee will mail to each such
Clearing Agency Participant the statement described above and will make
available additional copies as requested by such Clearing Agency Participant for
forwarding to holders of interests in the Applicable Certificates.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the Trustee
shall furnish to each Person who at any time during such calendar year was an
Applicable Certificateholder of record a statement containing the sum of the
amounts determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and
(a)(v) above for such calendar year or, in the event such Person was an
Applicable Certificateholder of record during a portion of such calendar year,
for such portion of such year, and such other items as are readily available to
the Trustee and which an Applicable Certificateholder shall reasonably request
as necessary for the purpose of such Applicable Certificateholder's preparation
of its federal income tax returns. Such statement and such other items shall be
prepared on the basis of information supplied to the Trustee by the Clearing
Agency Participants and shall be delivered by the Trustee to such Clearing
Agency Participants to be available for forwarding by such Clearing Agency
Participants to the holders of interests in the Applicable Certificates in the
manner described in Section 3.01(a) of this Trust Supplement.
(c) Promptly following the date of any early redemption or any
default in the payment of principal or interest in respect of, any of the Series
D 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 Balance for the Regular
Distribution Date following such date and (y) the Pool Factor for such Regular
Distribution Date. 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) This Section 3.01 supersedes and replaces Section 4.03 of the
Basic Agreement, with respect to the Applicable Trust.
ARTICLE IV
DEFAULT
Section 4.01. PURCHASE RIGHTS OF CERTIFICATEHOLDERS. (a) At any time
after the occurrence and during the continuation of a Triggering Event under a
Prior Series, each Applicable Certificateholder shall have the right (which
shall not expire (i) in the case of the 1998-3, 1999-2, 2000-1 or 2000-2 Prior
Series, (x) upon any purchase of Class A-2 Certificates issued under such Prior
Series pursuant to the Class A-1 Trust Agreement with respect to such Prior
Series, (y) any purchase of Class A-1 Certificates issued under such Prior
Series pursuant to the Class A-2 Trust Agreement with respect to such Prior
Series or (z) any purchase of Class A-1 Certificates issued under such Prior
Series and Class A-2 Certificates issued under such Prior Series pursuant to the
Class B Trust Agreement with respect to such Prior Series, (ii) in the case of
the 1997-4, 1998-1 or 1999-1 Prior Series, any purchase of Class A Certificates
issued under such Prior Series pursuant to the Class B Trust Agreement with
respect to such Prior Series, (iii) in the case of the 1998-3, 1999-2 or 2000-1
Prior Series, (x) any purchase of Class A-1 Certificates issued under such Prior
Series, Class A-2 Certificates issued under such Prior Series, Class B
Certificates issued under such Prior Series and Class C-2 Certificates issued
under such Prior Series pursuant to the Class C-1 Trust Agreement with respect
to such Prior Series or (y) any purchase of Class A-1 Certificates issued under
such Prior Series, Class A-2 Certificates issued under such Prior Series, Class
B Certificates issued under such Prior Series and Class C-1 Certificates issued
under such Prior Series pursuant to the Class C-2 Trust Agreement with respect
to such Prior Series, (iv) in the case of the 1997-4, 1998-1 or 1999-1 Prior
Series, any purchase of Class A Certificates issued under such Prior Series and
Class B Certificates issued under such Prior Series pursuant to the Class C
Trust Agreement with respect to such Prior Series, and (v) in the case of the
2000-2 Prior Series, any purchase of Class A-1 Certificates issued under such
Prior Series, Class A-2 Certificates issued under such Prior Series and Class B
Certificates issued under such Prior Series pursuant to the Class C Trust
Agreement with respect to such Prior Series) to purchase, for the purchase
prices set forth in (I) in the case of the 1997-4, 1998-1 or 1999-1 Prior
Series, the Class A Trust Agreement with respect to such Prior Series, the Class
B Trust Agreement with respect to such Prior Series and the Class C Trust
Agreement with respect to such Prior Series, (II) in the case of the 1998-3,
1999-2 or 2000-1 Prior Series, the Class A-1 Trust Agreement with respect to
such Prior Series, the Class A-2 Trust Agreement with respect such Prior Series,
the Class B Trust Agreement with respect to such Prior Series, the Class C-1
Trust Agreement with respect to such Prior Series and the Class C-2 Trust
Agreement with respect to such Prior Series, or (III) in the case of the 2000-2
Prior Series, the Class A-1 Trust Agreement with respect to such Prior Series,
the Class A-2 Trust Agreement with respect to such Prior Series, the Class B
Trust Agreement with respect to such Prior Series and the Class C Trust
Agreement with respect to such Prior Series (with respect to such Prior Series,
the "SENIOR TRUST AGREEMENTS"), respectively, all, but not less than all (X) in
the case of the 1997-4, 1998-1 or 1999-1 Prior Series, the Class A Certificates
issued under such Prior Series, the Class B Certificates issued under such Prior
Series and the Class C Certificates issued under such Prior Series, (Y) in the
case of the 1998-3, 1999-2 or 2000-1 Prior Series, the Class A-1 Certificates
issued under such Prior Series, the Class A-2 Certificates issued under such
Prior Series, the Class B Certificates issued under such Prior Series, the Class
C-1 Certificates issued under such Prior Series and the Class C-2 Certificates
issued under such Prior Series, or (Z) in the case of the 2000-2 Prior Series,
the Class A-1 Certificates issued under such Prior Series, the Class A-2
Certificates issued under such Prior Series, the Class B Certificates issued
under such Prior Series and the Class C Certificates issued under such Prior
Series (with respect to such Prior Series, the "SENIOR CERTIFICATES") upon ten
days' written notice to the trustees under each of the Senior Trust Agreements
with respect to such Prior Series and each other Applicable Certificateholder,
PROVIDED that (A) if prior to the end of such ten-day period any other
Applicable Certificateholder notifies such purchasing Applicable
Certificateholder that such other Applicable Certificateholder wants to
participate in such purchase, then such other Applicable Certificateholder 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
ten-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-1 Certificate", "Class A-1
Trust Agreement", "Class A-2 Certificate", "Class A-2 Trust Agreement", "Class A
Certificate", "Class A Trust Agreement", "Class B Certificate", "Class B Trust
Agreement", "Class C-1 Certificate", "Class C-1 Trust Agreement", "Class C-2
Certificate", "Class C-2 Trust Agreement", "Class C Certificate" and "Class C
Trust Agreement" 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 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 the 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 D Equipment Notes which may be purchased by
the Trustee pursuant to the NPA. Except as provided in Sections 3.03, 3.04, 3.05
and 3.06 of the Basic Agreement, the Trustee shall not execute, authenticate or
deliver Applicable Certificates in excess of the aggregate amount specified in
this paragraph. The provisions of this Section 5.01(a) supersede and replace the
first sentence of Section 3.02(a) of the Basic Agreement, with respect to the
Applicable Trust.
(b) On or after the Issuance Date, the Company may deliver from time
to time to the Trustee a Delivery Notice relating to one or more Series D
Equipment Notes. After receipt of a Delivery Notice and in any case no later
than one Business Day prior to a Scheduled Delivery Date as to which such
Delivery Notice relates (the "APPLICABLE DELIVERY DATE"), the Trustee shall (as
and when specified in the Delivery Notice) instruct the Escrow Agent to provide
a Notice of Purchase Withdrawal to the Depositary requesting (A) the withdrawal
of one or more Deposits on the Applicable Delivery Date in accordance with and
to the extent permitted by the terms of the Escrow Agreement and the Deposit
Agreement and (B) the payment of all, or a portion, of such Deposit or Deposits
in an amount equal in the aggregate to the purchase price of such Series D
Equipment Notes to or on behalf of the Company, as issuer of such Series D
Equipment Notes, all as shall be described in the Delivery Notice; PROVIDED
that, if the Issuance Date is an Applicable Delivery Date, the Trustee shall not
so instruct the Escrow Agent, and the purchase price of such Series D Equipment
Notes shall be paid from a portion of the proceeds of the sale of the Applicable
Certificates. The Trustee shall (as and when specified in such Delivery Notice),
subject to the conditions set forth in Section 2 of the NPA, enter into and
perform its obligations under the Participation Agreement specified in such
Delivery Notice (the "APPLICABLE PARTICIPATION AGREEMENT") and cause such
certificates, documents and legal opinions relating to the Trustee to be duly
delivered as required by the Applicable Participation Agreement. If at any time
prior to the Applicable Delivery Date, the Trustee receives a notice of
postponement pursuant to Section 1(e) of the NPA, then the Trustee shall give
the Depositary (with a copy to the Escrow Agent) a notice of cancellation of
such Notice of Purchase Withdrawal relating to such Deposit or Deposits on such
Applicable Delivery Date. Upon satisfaction of the conditions specified in the
NPA and the Applicable Participation Agreement, the Trustee shall purchase the
applicable Series D Equipment Notes with the proceeds of the withdrawals of one
or more Deposits made on the Applicable Delivery Date in accordance with the
terms of the Deposit Agreement and the Escrow Agreement (or, if the Issuance
Date is the Applicable Delivery Date with respect to such Applicable
Participation Agreement, from a portion of the proceeds of the sale of the
Applicable Certificates). The purchase price of such Series D Equipment Notes
shall equal the principal amount of such Series D Equipment Notes. Amounts
withdrawn from such Deposit or Deposits in excess of the purchase price of the
Series D Equipment Notes or to the extent not applied on the Applicable Delivery
Date to the purchase price of the Series D Equipment Notes, shall be
re-deposited by the Trustee with the Depositary on the Applicable Delivery Date
in accordance with the terms of the Deposit Agreement. The provisions of this
Section 5.01(b) supersede and replace the provisions of Section 2.02 of the
Basic Agreement with respect to the Applicable Trust, and all provisions of the
Basic Agreement relating to Postponed Notes and Section 2.02 of the Basic
Agreement shall not apply to the Applicable Trust.
(c) The Trustee acknowledges its acceptance of all right, title and
interest in and to the Trust Property to be acquired pursuant to Section 5.01(b)
of this Trust Supplement, the NPA and each 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. The Trust shall not be
authorized or empowered to purchase any Series D Equipment Note issued pursuant
to the last sentence of the first paragraph of Section 2.02 of any Owned
Aircraft Indenture.
Section 5.02. WITHDRAWAL OF DEPOSITS. If any Deposits remain
outstanding on the Business Day next succeeding the Cut-off Date, the Trustee
shall give the Escrow Agent notice that the Trustee's obligation to purchase
Series D 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, each Intercreditor
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
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 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 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 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 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 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 Company may (but will not be required to), and the
Trustee (subject to Section 9.03 of the Basic Agreement) shall, at the Company's
request, at any time and from time to time, enter into one or more agreements
supplemental to the Escrow Agreement, the NPA or the Deposit Agreement, for any
of the purposes set forth in clauses (1) through (9) of such Section 9.01, and
(without limitation of the foregoing or Section 9.01 of the Basic Agreement) (a)
clauses (2) and (3) of such Section 9.01 shall also be deemed to include the
Company's obligations under (in the case of clause (2)), and the Company's
rights and powers conferred by (in the case of clause (3)), the NPA, and (b)
references in clauses (4), (6) and (7) of such Section 9.01 to "any
Intercreditor Agreement" shall also be deemed to refer to "any Intercreditor
Agreement, the Escrow Agreement, the NPA or the Deposit Agreement".
Section 6.03. SUPPLEMENTAL AGREEMENTS WITH CONSENT OF APPLICABLE
CERTIFICATEHOLDERS. Without limitation of Section 9.02 of the Basic Agreement,
the provisions of Section 9.02 of the Basic Agreement shall apply to agreements
or amendments for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Escrow Agreement, the Deposit
Agreement or the NPA or modifying in any manner the rights and obligations of
the Applicable Certificateholders under the Escrow Agreement, the Deposit
Agreement or the NPA; provided that (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".
ARTICLE VII
TERMINATION OF TRUST
Section 7.01. TERMINATION OF THE APPLICABLE TRUST. (a) The
respective obligations and responsibilities of the Company and the Trustee with
respect to the Applicable Trust shall terminate upon the earlier of (A) the
completion of the assignment, transfer and discharge described in the first
sentence of the immediately following paragraph and (B) distribution to all
Applicable Certificateholders and the Trustee of all amounts required to be
distributed to them pursuant to the Agreement and the disposition of all
property held as part of the Trust Property; PROVIDED, HOWEVER, that in no event
shall the Applicable Trust continue beyond one hundred ten (110) years following
the date of the execution of this Trust Supplement.
Upon the earlier of (i) the first Business Day following February 1,
2002 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 with respect to any Prior Series occurs (such date, the
"TRANSFER DATE"), or, if later, the date on which all of the conditions set
forth in the immediately following sentence have been satisfied, the Trustee is
hereby directed (subject only to the immediately following sentence) to, and the
Company shall direct the institution that will serve as the Related Trustee
under the Related Pass Through Trust Agreement to, execute and deliver the
Assignment and Assumption Agreement, pursuant to which the Trustee shall assign,
transfer and deliver all of the Trustee's right, title and interest to the Trust
Property to the Related Trustee under the Related Pass Through Trust Agreement.
The Trustee and the Related Trustee shall execute and deliver the Assignment and
Assumption Agreement upon the satisfaction of the following conditions:
(i) The Trustee, the Related Trustee and each of the Rating Agencies
then rating the Applicable Certificates shall have received an Officer's
Certificate and an Opinion of Counsel dated the date of the Assignment and
Assumption Agreement and each satisfying the requirements of Section 1.02
of the Basic Agreement, which Opinion of Counsel shall be substantially to
the effect set forth below and may be relied upon by the Beneficiaries (as
defined in the Assignment and Assumption Agreement):
(I) Upon the execution and delivery thereof by the parties
thereto in accordance with the terms of the Agreement and the Related
Pass Through Trust Agreement, the Assignment and Assumption Agreement
will constitute the valid and binding obligation of each of the
parties thereto enforceable against each such party in accordance with
its terms;
(II) Upon the execution and delivery of the Assignment and
Assumption Agreement in accordance with the terms of the Agreement and
the Related Pass Through Trust Agreement, each of the Applicable
Certificates then Outstanding will be entitled to the benefits of the
Related Pass Through Trust Agreement;
(III) The Related Trust is not required to be registered as an
investment company under the Investment Company Act of 1940, as
amended;
(IV) The Related Pass Through Trust Agreement constitutes the
valid and binding obligation of the Company enforceable against the
Company in accordance with its terms; and
(V) Neither the execution and delivery of the Assignment and
Assumption Agreement in accordance with the terms of the Agreement and
the Related Pass Through Trust Agreement, nor the consummation by the
parties thereto of the transactions contemplated to be consummated
thereunder on the date thereof, will violate any law or governmental
rule or regulation of the State of New York or the United States of
America known to such counsel to be applicable to the transactions
contemplated by the Assignment and Assumption Agreement.
(ii) The Trustee and the Company shall have received (x) a copy of
the articles of incorporation and bylaws of the Related Trustee certified
as of the Transfer Date by the Secretary or Assistant Secretary of such
institution and (y) a copy of the filing (including all attachments
thereto) made by the institution serving as the Related Trustee with the
Office of the Superintendent, State of New York Banking Department for the
qualification of the Related Trustee under Section 131(3) of the New York
Banking Law.
Upon the execution of the Assignment and Assumption Agreement by the parties
thereto, the Applicable Trust shall be terminated, the Applicable
Certificateholders shall receive beneficial interests in the Related Trust in
exchange for their interests in the Applicable Trust equal to their respective
beneficial interests in the Applicable Trust, and the Outstanding Applicable
Certificates representing Fractional Undivided Interests in the Applicable Trust
shall be deemed for all purposes of the Agreement and the Related Pass Through
Trust Agreement, without further signature or action of any party or Applicable
Certificateholder, to be certificates representing the same fractional undivided
interests in the Related Trust and its trust property. By acceptance of its
Applicable Certificate, each Applicable Certificateholder consents to such
assignment, transfer and delivery of the Trust Property to the trustee of the
Related Trust upon the execution and delivery of the Assignment and Assumption
Agreement.
In connection with the occurrence of the event set forth in clause
(B) above, notice of such termination, specifying the Distribution Date upon
which the Applicable Certificateholders may surrender their Applicable
Certificates to the Trustee for payment of the final distribution and
cancellation, shall be mailed promptly by the Trustee to Applicable
Certificateholders not earlier than the 60th day and not later than the 15th day
next preceding such final Distribution Date specifying (A) the Distribution Date
upon which the proposed final payment of the Applicable Certificates will be
made upon presentation and surrender of Applicable Certificates at the office or
agency of the Trustee therein specified, (B) the amount of any such proposed
final payment, and (C) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Applicable Certificates at the office or agency of the
Trustee therein specified. The Trustee shall give such notice to the Registrar
at the time such notice is given to Applicable Certificateholders. Upon
presentation and surrender of the Applicable Certificates in accordance with
such notice, the Trustee shall cause to be distributed to Applicable
Certificateholders such final payments.
In the event that all of the Applicable Certificateholders shall not
surrender their Applicable Certificates for cancellation within six months after
the date specified in the above-mentioned written notice, the Trustee shall give
a second written notice to the remaining Applicable Certificateholders to
surrender their Applicable Certificates for cancellation and receive the final
distribution with respect thereto. No additional interest shall accrue on the
Applicable Certificates after the Distribution Date specified in the first
written notice. In the event that any money held by the Trustee for the payment
of distributions on the Applicable Certificates shall remain unclaimed for two
years (or such lesser time as the Trustee shall be satisfied, after sixty days'
notice from the Company, is one month prior to the escheat period provided under
applicable law) after the final distribution date with respect thereto, the
Trustee shall pay to each Loan Trustee the appropriate amount of money relating
to such Loan Trustee and shall give written notice thereof to the Company.
(b) The provisions of this Section 7.01 supersede and replace the
provisions of Section 11.01 of the Basic Agreement in its entirety, with respect
to the Applicable Trust.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. BASIC AGREEMENT RATIFIED. Except and so far as herein
expressly provided, all of the provisions, terms and conditions of the Basic
Agreement are in all respects ratified and confirmed; and the Basic Agreement
and this Trust Supplement shall be taken, read and construed as one and the same
instrument. All replacements of provisions of, and other modifications of the
Basic Agreement set forth in this Trust Supplement are solely with respect to
the Applicable Trust.
SECTION 8.02. GOVERNING LAW. THE AGREEMENT AND, UNTIL THE TRANSFER
DATE, THE APPLICABLE CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE. THIS SECTION 8.02 SUPERSEDES
AND REPLACES SECTION 12.05 OF THE BASIC AGREEMENT, WITH RESPECT TO THE
APPLICABLE TRUST.
Section 8.03. EXECUTION IN COUNTERPARTS. This Trust Supplement may
be executed in any number of counterparts, each of which shall be an original,
but such counterparts shall together constitute but one and the same instrument.
Section 8.04. INTENTION OF PARTIES. The parties hereto intend that
the Applicable Trust be classified for U.S. federal income tax purposes as a
grantor trust under Subpart E, Part I of Subchapter J of the Internal Revenue
Code of 1986, as amended, and not as a trust or association taxable as a
corporation or as a partnership. Each Applicable Certificateholder and Investor,
by its acceptance of its Applicable Certificate or a beneficial interest
therein, agrees to treat the Applicable Trust as a grantor trust for all U.S.
federal, state and local income tax purposes. The powers granted and obligations
undertaken pursuant to the Agreement shall be so construed so as to further such
intent.
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Trust Supplement to be duly executed by their respective officers thereto duly
authorized, as of the day and year first written above.
CONTINENTAL AIRLINES, INC.
By:
---------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee
By:
---------------------------------------
Name:
Title:
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 the issuer hereof or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch the registered owner
hereof, Cede & Co., has an interest herein.]
CONTINENTAL AIRLINES PASS THROUGH TRUST 2001-2D-O
7.568% Continental Airlines Pass Through Certificate, Series 2001-2D-O
Issuance Date: July 31, 2001
Final Maturity Date: December 1, 2006
Evidencing A Fractional Undivided Interest In The Continental
Airlines Pass Through Trust 2001-2D-O, The Property Of Which
Shall Include Certain Series D Equipment Notes Each Secured By
An Aircraft Owned By Continental Airlines, Inc.
$____________ Fractional Undivided Interest
representing .0005000000% 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
2001-2D-O (the "TRUST") created by Wilmington Trust Company, as trustee (the
"TRUSTEE"), pursuant to a Pass Through Trust Agreement, dated as of September
25, 1997 (the "BASIC AGREEMENT"), between the Trustee and Continental Airlines,
Inc., a Delaware corporation (the "COMPANY"), as supplemented by Trust
- ------------------------
This legend to appear on Book-Entry Certificates accepted as eligible for
deposit at The Depository Trust Company or its Agent as provided in paragraph
(1) of the Letter of Representations.
Supplement No. 2001-2D-O thereto, dated as of July 31, 2001 (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 "7.568% Continental Airlines Pass Through Certificates, Series
2001-2D-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 D Equipment Notes and all rights of the Trust
to receive payments under the Intercreditor Agreements (the "TRUST PROPERTY").
Each issue of the Series D Equipment Notes is secured by, among other things, a
security interest in an Aircraft owned by the Company.
The Certificates represent Fractional Undivided Interests in the
Trust and the Trust Property and have no rights, benefits or interest in respect
of any other separate trust established pursuant to the terms of the Basic
Agreement for any other series of certificates issued pursuant thereto.
Subject to and in accordance with the terms of the Agreement and the
Intercreditor Agreements, from funds then available to the Trustee, there will
be distributed on each June 1 and December 1 (a "REGULAR DISTRIBUTION DATE")
commencing December 1, 2001, 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
D 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 D 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 D
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 Agreement. This
Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, privileges, and duties evidenced hereby. A copy of the Agreement
may be examined during normal business hours at the principal office of the
Trustee, and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Certificateholders under the Agreement at any time
by the Company and the Trustee with the consent of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust. Any such consent by the
Certificateholder of this Certificate shall be conclusive and binding on such
Certificateholder and upon all future Certificateholders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Certificateholders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations set
forth therein, the transfer of this Certificate is registrable in the Register
upon surrender of this Certificate for registration of transfer at the offices
or agencies maintained by the Trustee in its capacity as Registrar, or by any
successor Registrar, duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Registrar, duly executed by
the Certificateholder hereof or such Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate Fractional Undivided Interest in the
Trust will be issued to the designated transferee or transferees.
Under certain circumstances set forth in Section 7.01 of the Trust
Supplement, all of the Trustee's right, title and interest to the Trust Property
may be assigned, transferred and delivered to the Related Trustee of the Related
Trust pursuant to the Assignment and Assumption Agreement. Upon the
effectiveness of such Assignment and Assumption Agreement (the "TRANSFER"), the
Trust shall be terminated, the Certificateholders shall receive beneficial
interests in the Related Trust in exchange for their interests in the Trust
equal to their respective beneficial interests in the Trust, the Certificates
representing Fractional Undivided Interests in the Trust shall be deemed for all
purposes of the Agreement and the Related Pass Through Trust Agreement to be
certificates representing the same fractional undivided interests in the Related
Trust and its trust property. Each Certificateholder, by its acceptance of this
Certificate or a beneficial interest herein, agrees to be bound by the
Assignment and Assumption Agreement and subject to the terms of the Related Pass
Through Trust Agreement as a Certificateholder thereunder. From and after the
Transfer, unless and to the extent the context otherwise requires, references
herein to the Trust, the Agreement and the Trustee shall constitute references
to the Related Trust, the Related Pass Through Trust Agreement and trustee of
the Related Trust, respectively.
The Certificates are issuable only as registered Certificates
without coupons in minimum denominations of $1,000 Fractional Undivided Interest
and integral multiples thereof except that one Certificate may be issued in a
different denomination. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust, as requested by the
Certificateholder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee shall require payment of a sum sufficient to cover
any tax or governmental charge payable in connection therewith.
Each Certificateholder and Investor, by its acceptance of this
Certificate or a beneficial interest herein, agrees to treat the Trust as a
grantor trust for all U.S. federal, state and local income tax purposes.
The Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Trustee, the Registrar, nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and
the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
Any Person acquiring or accepting this Certificate or an interest
herein will, by such acquisition or acceptance, be deemed to have represented
and warranted to and for the benefit of the Company that either: (i) the assets
of an employee benefit plan subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or of a plan subject to Section 4975
of the Internal Revenue Code of 1986, as amended (the "CODE"), have not been
used to purchase this Certificate or an interest herein or (ii) the purchase and
holding of this Certificate or an interest herein are exempt from the prohibited
transaction restrictions of ERISA and the Code pursuant to one or more
prohibited transaction statutory or administrative exemptions.
THE AGREEMENT AND, UNTIL THE TRANSFER, THIS CERTIFICATE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS. THE RELATED PASS THROUGH TRUST
AGREEMENT AND, FROM AND AFTER THE TRANSFER, THIS CERTIFICATE SHALL BE GOVERNED
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
CONTINENTAL AIRLINES PASS
THROUGH TRUST 2001-2D-O
By: WILMINGTON TRUST COMPANY,
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 COMPANY,
as Trustee
By:
------------------------------------
Name:
Title:
EXHIBIT B
[DTC Letter of Representations]
EXHIBIT C
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
Continental Airlines Pass Through Trust 2001-2D-O
ASSIGNMENT AND ASSUMPTION AGREEMENT (2001-2D-O), dated_________
__,______ (the "ASSIGNMENT AGREEMENT"), between Wilmington Trust Company, a
Delaware banking corporation ("WTC"), not in its individual capacity except as
expressly provided herein, but solely as trustee under the Pass Through Trust
Agreement dated as of September 25, 1997 (as amended or modified from time to
time, the "BASIC AGREEMENT"), as supplemented by the Trust Supplement No.
2001-2D-O dated July 31, 2001 (the "TRUST SUPPLEMENT" and together with the
Basic Agreement, the "AGREEMENT") in respect of the Continental Airlines Pass
Through Trust 2001-2D-O (the "ASSIGNOR"), and Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity except as expressly
provided herein, but solely as trustee under the Basic Agreement as supplemented
by the Trust Supplement No. 2001-2D-S dated July 31, 2001 (the "NEW SUPPLEMENT",
and, together with the Basic Agreement, the "NEW AGREEMENT") in respect of the
Continental Airlines Pass Through Trust 2001-2D-S (the "ASSIGNEE").
W I T N E S S E T H:
WHEREAS, the parties hereto desire to effect on the date hereof (the
"TRANSFER DATE") (a) the transfer by the Assignor to the Assignee of all of the
right, title and interest of the Assignor in, under and with respect to, among
other things, the Trust Property and each of the documents listed in Schedule I
hereto (the "SCHEDULED DOCUMENTS") and (b) the assumption by the Assignee of the
obligations of the Assignor (i) under the Scheduled Documents and (ii) in
respect of the Applicable Certificates issued under the Agreement; and
WHEREAS, the Scheduled Documents permit such transfer upon
satisfaction of certain conditions heretofore or concurrently herewith being
complied with;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto do hereby agree as
follows (capitalized terms used herein without definition having the meaning
ascribed thereto in the Agreement):
1. ASSIGNMENT. The Assignor does hereby sell, assign, convey,
transfer and set over unto the Assignee as of the Transfer Date all of its
present and future right, title and interest in, under and with respect to the
Trust Property and the Scheduled Documents and each other contract, agreement,
document or instrument relating to the Trust Property or the Scheduled Documents
(such other contracts, agreements, documents or instruments, together with the
Scheduled Documents, to be referred to as the "ASSIGNED DOCUMENTS"), and any
proceeds therefrom, together with all documents and instruments evidencing any
of such right, title and interest.
2. ASSUMPTION. The Assignee hereby assumes for the benefit of the
Assignor and each of the parties listed in Schedule II hereto (collectively, the
"BENEFICIARIES") all of the duties and obligations of the Assignor, whenever
accrued, pursuant to the Assigned Documents and hereby confirms that it shall be
deemed a party to each of the Assigned Documents to which the Assignor is a
party and shall be bound by all the terms thereof (including the agreements and
obligations of the Assignor set forth therein) as if therein named as the
Assignor. Further, the Assignee hereby assumes for the benefit of the Assignor
and the Beneficiaries all of the duties and obligations of the Assignor under
the Outstanding Applicable Certificates and hereby confirms that the Applicable
Certificates representing Fractional Undivided Interests under the Agreement
shall be deemed for all purposes of the Agreement and the New Agreement to be
certificates representing the same fractional undivided interests under the New
Agreement equal to their respective beneficial interests in the trust created
under the Agreement.
3. EFFECTIVENESS. This Assignment Agreement shall be effective upon
the execution and delivery hereof by the parties hereto, and each Applicable
Certificateholder, by its acceptance of its Applicable Certificate or a
beneficial interest therein, agrees to be bound by the terms of this Assignment
Agreement.
4. PAYMENTS. The Assignor hereby covenants and agrees to pay over to
the Assignee, if and when received following the Transfer Date, any amounts
(including any sums payable as interest in respect thereof) paid to or for the
benefit of the Assignor that, under Section 1 hereof, belong to the Assignee.
5. FURTHER ASSURANCES. The Assignor shall, at any time and from time
to time, upon the request of the Assignee, promptly and duly execute and deliver
any and all such further instruments and documents and take such further action
as the Assignee may reasonably request to obtain the full benefits of this
Assignment Agreement and of the rights and powers herein granted. The Assignor
agrees to deliver any Applicable Certificates, and all Trust Property, if any,
then in the physical possession of the Assignor, to the Assignee.
6. REPRESENTATIONS AND WARRANTIES. (a) The Assignee represents and
warrants to the Assignor and each of the Beneficiaries that:
(i) it has all requisite power and authority and legal right to
enter into and carry out the transactions contemplated hereby and to carry
out and perform the obligations of the "Pass Through Trustee" under the
Assigned Documents;
(ii) on and as of the date hereof, the representations and
warranties of the Assignee set forth in Section 7.15 of the Basic Agreement
and Section 5.04 of the New Supplement are true and correct.
(b) The Assignor represents and warrants to the Assignee that:
(i) it is duly incorporated, validly existing and in good standing
under the laws of the State of Delaware and has the full trust power,
authority and legal right under the laws of the State of Delaware and the
United States pertaining to its trust and fiduciary powers to execute and
deliver this Assignment Agreement;
(ii) the execution and delivery by it of this Assignment Agreement
and the performance by it of its obligations hereunder have been duly
authorized by it and will not violate its articles of association or
by-laws or the provisions of any indenture, mortgage, contract or other
agreement to which it is a party or by which it is bound; and
(iii) this Assignment Agreement constitutes the legal, valid and
binding obligations of it enforceable against it in accordance with its
terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights
of creditors generally and by general principles of equity, whether
considered in a proceeding at law or in equity.
7. GOVERNING LAW. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
8. COUNTERPARTS. This Assignment Agreement may be executed in any
number of counterparts, all of which together shall constitute a single
instrument. It shall not be necessary that any counterpart be signed by both
parties so long as each party shall sign at least one counterpart.
9. THIRD PARTY BENEFICIARIES. The Assignee hereby agrees, for the
benefit of the Beneficiaries, that its representations, warranties and covenants
contained herein are also intended to be for the benefit of each Beneficiary,
and each Beneficiary shall be deemed to be an express third party beneficiary
with respect thereto, entitled to enforce directly and in its own name any
rights or claims it may have against such party as such beneficiary.
IN WITNESS WHEREOF, the parties hereto, through their respective
officers thereunto duly authorized, have duly executed this Assignment Agreement
as of the day and year first above written.
ASSIGNOR:
WILMINGTON TRUST COMPANY, not
in its individual capacity except as
expressly provided herein, but solely as
trustee under the Pass Through Trust
Agreement and Trust Supplement in
respect of the Continental Airlines Pass
Through Trust 2001-2D-O
By:
----------------------------------------
Title:
ASSIGNEE:
WILMINGTON TRUST COMPANY, not
in its individual capacity except as
expressly provided herein, but solely as
trustee under the Pass Through Trust
Agreement and Trust Supplement in
respect of the Continental Airlines Pass
Through Trust 2001-2D-S
By:
----------------------------------------
Title:
SCHEDULE I
TO ASSIGNMENT AND ASSUMPTION AGREEMENT
SCHEDULE OF ASSIGNED DOCUMENTS
(1) Intercreditor Agreement dated as of October 23, 1997 among
Wilmington Trust Company, not in its individual capacity, but solely as Class A
Trustee, Class B Trustee and Class C Trustee, ABN AMRO Bank N.V., acting through
its Chicago Branch, as a Class A Liquidity Provider, a Class B Liquidity
Provider and a Class C Liquidity Provider, Westdeutsche Landesbank Girozentrale,
as a Class A Liquidity Provider, a Class B Liquidity Provider and a Class C
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
(1997-4) dated as of July 31, 2001.
(2) Intercreditor Agreement dated as of February 20, 1998 among
Wilmington Trust Company, not in its individual capacity, but solely as Class A
Trustee, Class B Trustee and Class C Trustee, AIG Matched Funding Corp., as
Class A Liquidity Provider, Class B Liquidity Provider and Class C 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 (1998-1)
dated as of July 31, 2001.
(3) Intercreditor Agreement dated as of November 3, 1998 among
Wilmington Trust Company, not in its individual capacity, but solely as Class
A-1 Trustee, Class A-2 Trustee, Class B Trustee, Class C-1 Trustee and Class C-2
Trustee, Westdeutsche Landesbank Girozentrale, acting through its New York
Branch, as Class A-1 Liquidity Provider and Class A-2 Liquidity Provider, Morgan
Stanley Capital Services, Inc., as Class B Liquidity Provider, Class C-1
Liquidity Provider and Class C-2 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 (1998-3) dated as of July 31, 2001.
(4) Intercreditor Agreement dated as of February 8, 1999 among
Wilmington Trust Company, not in its individual capacity, but solely as Class A
Trustee, Class B Trustee and Class C Trustee, Bayerische Landesbank
Girozentrale, as Class A Liquidity Provider, Class B Liquidity Provider and
Class C 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 (1999-1) dated as of July 31, 2001.
(5) Intercreditor Agreement dated as of June 17, 1999 among
Wilmington Trust Company, not in its individual capacity, but solely as Class
A-1 Trustee, Class A-2 Trustee, Class B Trustee, Class C-1 Trustee and Class C-2
Trustee, Bayerische Landesbank Girozentrale, as Class A-1 Liquidity Provider,
Class A-2 Liquidity Provider, Class B Liquidity Provider, Class C-1 Liquidity
Provider and Class C-2 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 (1999-2) dated as of July 31, 2001.
(6) Intercreditor Agreement dated as of March 15, 2000 among
Wilmington Trust Company, not in its individual capacity, but solely as Class
A-1 Trustee, Class A-2 Trustee, Class B Trustee, Class C-1 Trustee and Class C-2
Trustee, Credit Suisse First Boston, New York Branch, as Class A-1 Liquidity
Provider, Class A-2 Liquidity Provider and Class B Liquidity Provider, Morgan
Stanley Capital Services Inc., as Class C-1 Liquidity Provider and Class C-2
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 the Acknowledgment and Agreement dated May 12,
2000 among the foregoing parties and Landesbank Hessen-Thuringen Girozentrale,
as replacement Class A-1 Liquidity Provider, replacement Class A-2 Liquidity
Provider and replacement Class B Liquidity Provider, as further amended by
Amendment No. 1 to Intercreditor Agreement (2000-1) dated as of July 31, 2001.
(7) Intercreditor Agreement dated as of November 28, 2000 among
Wilmington Trust Company, not in its individual capacity, but solely as Class
A-1 Trustee, Class A-2 Trustee, Class B Trustee and Class C Trustee, Landesbank
Hessen-Thuringen Girozentrale, as Class A-1 Liquidity Provider, Class A-2
Liquidity Provider, Class B Liquidity Provider and Class C 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 (2000-2) dated as of July
31, 2001.
(8) Escrow and Paying Agent Agreement (Class D) dated as of July 31,
2001 among the Escrow Agent, the Underwriters, the Trustee and the Paying Agent.
(9) Note Purchase Agreement dated as of July 31, 2001 among the
Company, the Trustee, the Depositary, the Escrow Agent, the Paying Agent and the
Subordination Agent.
(10) Deposit Agreement (Class D) dated as of July 31, 2001 between
the Escrow Agent and the Depositary.
(11) Each of the Operative Agreements (as defined in the
Participation Agreement for each Aircraft) in effect as of the Transfer Date.
SCHEDULE II
TO ASSIGNMENT AND ASSUMPTION AGREEMENT
SCHEDULE OF BENEFICIARIES
Wilmington Trust Company, not in its individual capacity but solely as
Subordination Agent
Wilmington Trust Company, not in its individual capacity but solely as Paying
Agent
Credit Suisse First Boston, New York Branch, as Depositary
Continental Airlines, Inc.
Morgan Stanley & Co. Incorporated, as Underwriter
Credit Suisse First Boston Corporation, as Underwriter
Wells Fargo Bank Northwest, National Association, as Escrow Agent
Each of the other parties to the Assigned Documents
SCHEDULE I
TO TRUST SUPPLEMENT
OWNED AIRCRAFT
Original Principal
U.S. Amount of Series D
AIRCRAFT MODEL REG. NO. PRIOR SERIES EQUIPMENT NOTES
- ------------------------ ---------------- ---------------- -------------------------
Boeing 737-524 N11656 1997-4 $ 1,000
Boeing 737-524 N23657 1997-4 1,000
Boeing 737-524 N18658 1997-4 1,000
Boeing 737-524 N15659 1997-4 1,000
Boeing 737-524 N14660 1997-4 1,000
Boeing 737-524 N14664 1998-1 492,617
Boeing 737-524 N13665 1998-1 255,682
Boeing 737-524 N14667 1998-1 7,611,401
Boeing 737-524 N14668 1998-1 7,611,401
Boeing 737-824 N26226 1998-1 1,000
Boeing 757-224 N48127 1998-1 1,745,450
Boeing 757-224 N17128 1998-1 1,000
Boeing 757-224 N29129 1998-1 1,000
Boeing 757-224 N19130 1998-1 1,000
Original Principal
U.S. Amount of Series D
AIRCRAFT MODEL REG. NO. PRIOR SERIES EQUIPMENT NOTES
- ------------------------ ---------------- ---------------- -------------------------
Boeing 737-724 N33132 1998-1 $ 4,514,833
Boeing 737-724 N29717 1998-3 5,117,659
Boeing 737-724 N13718 1998-3 5,117,659
Boeing 737-724 N17719 1998-3 898,492
Boeing 737-724 N13720 1998-3 898,491
Boeing 737-724 N23721 1998-3 898,491
Boeing 737-724 N27722 1998-3 519,655
Boeing 737-724 N21723 1998-3 519,655
Boeing 737-824 N13227 1998-3 1,093,779
Boeing 757-224 N67134 1998-3 480,732
Boeing 757-224 N41135 1998-3 429,056
Boeing 757-224 N19136 1998-3 379,326
Boeing 777-224ER N77006 1998-3 1,857,715
Boeing 737-724 N27734 1999-1 3,532,443
Boeing 737-824 N14228 1999-1 6,833,055
Boeing 737-824 N26232 1999-1 6,785,724
Boeing 737-824 N14235 1999-1 3,744,342
Boeing 777-224ER N78009 1999-1 26,085,789
Boeing 777-224ER N79011 1999-1 22,753,430
Original Principal
U.S. Amount of Series D
AIRCRAFT MODEL REG. NO. PRIOR SERIES EQUIPMENT NOTES
- ------------------------ ---------------- ---------------- -------------------------
Boeing 737-724 N24729 1999-2 $ 2,770,644
Boeing 737-724 N16732 1999-2 2,742,152
Boeing 737-724 N14735 1999-2 2,712,617
Boeing 737-724 N24736 1999-2 2,712,617
Boeing 737-824 N35236 1999-2 3,112,834
Boeing 737-824 N14240 1999-2 3,471,816
Boeing 737-824 N18243 1999-2 2,239,527
Boeing 737-824 N27246 1999-2 2,238,278
Boeing 737-824 N14249 1999-2 2,104,868
Boeing 757-224 N34137 1999-2 1,000
Boeing 777-224ER N78013 1999-2 6,038,022
Boeing 737-824 N37252 2000-1 3,858,745
Boeing 737-824 N37253 2000-1 3,951,584
Boeing 737-824 N76254 2000-1 398,837
Boeing 757-224 N17139 2000-1 1,000
Boeing 757-224 N41140 2000-1 1,000
Boeing 757-224 N19141 2000-1 1,000
Boeing 767-424ER N66051 2000-1 8,304,820
Boeing 767-424ER N67052 2000-1 5,733,621
Boeing 767-424ER N59053 2000-1 158,387
Original Principal
U.S. Amount of Series D
AIRCRAFT MODEL REG. NO. PRIOR SERIES EQUIPMENT NOTES
- ------------------------ ---------------- ---------------- -------------------------
Boeing 737-924 N79402 2000-2 $ 5,393,039
Boeing 737-924 N38403 2000-2 678,463
Boeing 767-224ER N68155 2000-2 7,294,641
Boeing 767-224ER N76156 2000-2 7,224,225
Boeing 767-224ER N67158 2000-2 1,000
Boeing 767-424ER N66056 2000-2 10,673,910
SCHEDULE II
TO TRUST SUPPLEMENT
ELIGIBLE AIRCRAFT AND SCHEDULED DELIVERY MONTHS
Expected Registration Manufacturer's Serial Scheduled Delivery
NEW AIRCRAFT TYPE NUMBER NUMBER MONTH
- ---------------------- ------------------------- ------------------------- --------------------
Boeing 737-824 N37263 31583 August 2001
Boeing 737-824 N33264 31584 August 2001
Boeing 737-824 N76265 31585 August 2001
Boeing 737-824 N33266 32403 August 2001
Boeing 737-824 N37267 31586 September 2001
Boeing 737-824 N38268 31587 September 2001
Boeing 737-824 N76269 31588 October 2001
Boeing 737-824 N73270 31632 October 2001
Boeing 737-824 N35271 31589 November 2001
Boeing 737-824 N36272 31590 November 2001
Boeing 737-924 N72405 30122 August 2001
Boeing 737-924 N73406 30123 September 2001
Boeing 737-924 N37407 30124 September 2001
Boeing 737-924 N37408 30125 October 2001
Boeing 737-924 N75409 30126 November 2001
Boeing 737-924 N75410 30127 December 2001
TRUST SUPPLEMENT No. 2001-2D-S
Dated July 31, 2001
between
WILMINGTON TRUST COMPANY
as Trustee,
and
CONTINENTAL AIRLINES, INC.
to
PASS THROUGH TRUST AGREEMENT
Dated as of September 25, 1997
$200,000,000
Continental Airlines Pass Through Trust 2001-2D-S
7.568% Continental Airlines
Pass Through Certificates,
Series 2001-2D-S
This Trust Supplement No. 2001-2D-S, dated as of July 31, 2001
(herein called the "TRUST SUPPLEMENT"), between Continental Airlines, Inc., a
Delaware corporation (the "COMPANY"), and Wilmington Trust Company (the
"TRUSTEE"), to the Pass Through Trust Agreement, dated as of September 25, 1997,
between the Company and the Trustee (the "BASIC AGREEMENT").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Basic Agreement, unlimited as to the aggregate
principal amount of Certificates (unless otherwise specified herein, capitalized
terms used herein without definition having the respective meanings specified in
the Basic Agreement) which may be issued thereunder, has heretofore been
executed and delivered;
WHEREAS, under the terms of seven series of Continental Airlines
pass through certificates previously issued and designated Series 1997-4,
1998-1, 1998-3, 1999-1, 1999-2, 2000-1 and 2000-2 (the "PRIOR SERIES"), the
Company is entitled to sell Series D Equipment Notes secured by aircraft
financed under each Prior Series;
WHEREAS, the Company has purchased the 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 pursuant
to the Aircraft Purchase Agreement for the delivery of the sixteen aircraft
listed in Schedule II to the Related Pass Through Trust Supplement (together
with any aircraft substituted therefor in accordance with the Aircraft Purchase
Agreement prior to the delivery thereof, the "ELIGIBLE AIRCRAFT"), and the
Company expects to purchase after the Issuance Date utilizing the proceeds of
(i) the sale of secured equipment notes to be acquired by the pass through
trustees under the 2000-2 Note Purchase Agreement and (ii) the Series D
Equipment Notes purchased pursuant to the Related Pass Through Trust Agreement
two of the ten Boeing 737-824 aircraft and two of the six Boeing 737-924
aircraft included in the Eligible Aircraft (such aircraft to be financed
hereunder, the "NEW AIRCRAFT");
WHEREAS, as of the Transfer Date, in the case of each Aircraft, the
Company will have issued pursuant to an Indenture, on a recourse basis,
Equipment Notes, including Series D Equipment Notes secured by such Aircraft;
WHEREAS, as of the Transfer Date, the Related Trustee will assign,
transfer and deliver all of such trustee's right, title and interest to the
trust property held by the Related Trustee to the Trustee pursuant to the
Assignment and Assumption Agreement;
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 2001-2D-S (the "APPLICABLE TRUST") for the benefit of the Applicable
Certificateholders, and each Holder of Applicable Certificates outstanding as of
the Transfer Date, as the grantors of the Applicable Trust, by their respective
acceptances of such Applicable Certificates, will join in the creation of this
Applicable Trust with the Trustee;
WHEREAS, all Applicable Certificates 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 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 "7.568% Continental Airlines Pass Through Certificates, Series
2001-2D-S". Each Applicable Certificate represents a fractional undivided
interest in the Applicable Trust created hereby. The Applicable Certificates
shall be the only instruments evidencing a fractional undivided interest in the
Applicable Trust.
The terms and conditions applicable to the Applicable Certificates
are as follows:
(a) The aggregate principal amount of the Applicable Certificates
that shall be initially deemed issued under the Agreement shall be equal to
the aggregate principal amount of "Outstanding" pass through certificates
representing fractional undivided interests in the Related Trust on the
Transfer Date. Subject to the preceding sentence and Section 5.01 of this
Trust Supplement and except for Applicable Certificates authenticated and
delivered under Sections 3.03, 3.04, 3.05 and 3.06 of the Basic Agreement,
no Applicable Certificates shall be authenticated under the Agreement.
(b) The Regular Distribution Dates with respect to any payment of
Scheduled Payments means June 1 and December 1 of each year, commencing on
December 1, 2001, until payment of all of the Scheduled Payments to be made
under the Series D Equipment Notes has been made.
(c) The Special Distribution Dates with respect to the Applicable
Certificates means any Business Day on which a Special Payment is to be
distributed pursuant to the Agreement.
(d) At the Escrow Agent's request under the Escrow Agreement, the
Trustee shall affix the corresponding Escrow Receipt to each Applicable
Certificate. In any event, any transfer or exchange of any Applicable
Certificate shall also effect a transfer or exchange of the related Escrow
Receipt. Prior to the Final Withdrawal Date, no transfer or exchange of any
Applicable Certificate shall be permitted unless the corresponding Escrow
Receipt is attached thereto and also is so transferred or exchanged. By
acceptance of any Applicable Certificate to which an Escrow Receipt is
attached, each Holder of such an Applicable Certificate acknowledges and
accepts the restrictions on transfer of the Escrow Receipt set forth herein
and in the Escrow Agreement.
(e) (i) The Applicable Certificates shall be in the form attached as
Exhibit A to the Related Pass Through Trust Supplement, with such
appropriate insertions, omissions, substitutions and other variations as
are required or permitted by the Related Pass Through Trust Agreement or
the Agreement, as the case may be, or as the Trustee may deem appropriate,
to reflect the fact that the Applicable Certificates are being issued under
the Agreement as opposed to under the Related Pass Through Trust Agreement.
Any Person acquiring or accepting an Applicable Certificate or an interest
therein will, by such acquisition or acceptance, be deemed to represent and
warrant to and for the benefit of the Company that either (i) the assets of
an employee benefit plan subject to Title I of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or of a plan subject to
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"),
have not been used to purchase Applicable Certificates or an interest
therein or (ii) the purchase and holding of Applicable Certificates or an
interest therein is exempt from the prohibited transaction restrictions of
ERISA and the Code pursuant to one or more prohibited transaction statutory
or administrative exemptions.
(ii) The Applicable Certificates shall be Book-Entry Certificates
and shall be subject to the conditions set forth in the Letter of
Representations between the Company and the Clearing Agency attached as
Exhibit B to the Related Pass Through Trust Supplement.
(f) The "Participation Agreements" as defined in this Trust
Supplement are the "Note Purchase Agreements" referred to in the Basic
Agreement.
(g) The Applicable Certificates are subject to the Intercreditor
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 "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.
(k) 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 Owned Aircraft and each of the New
Aircraft or the Substitute Aircraft in respect of which a Participation
Agreement is entered into in accordance with the NPA (or any substitute
aircraft, including engines therefor, owned by the Company and securing one
or more Series D Equipment Notes).
AIRCRAFT PURCHASE AGREEMENT: Has the meaning specified in the
NPA.
APPLICABLE CERTIFICATE: Means any of the "Applicable
Certificates" issued by the Related Trust and that are "Outstanding" (as
defined in the Related Pass Through Trust Agreement) as of the Transfer
Date (the "TRANSFER DATE CERTIFICATES") and any Certificate issued in
exchange therefor or replacement thereof pursuant to the Agreement.
APPLICABLE CERTIFICATEHOLDER: Means the Person in whose name an
Applicable Certificate is registered on the Register for the Applicable
Certificates.
APPLICABLE TRUST: Has the meaning specified in the recitals
hereto.
ASSIGNMENT AND ASSUMPTION AGREEMENT: Means the assignment and
assumption agreement substantially in the form of Exhibit C to the Related
Pass Through Trust Supplement executed and delivered in accordance with
Section 7.01 of the Related Trust Supplement.
BASIC AGREEMENT: Has the meaning specified in the first paragraph
of this Trust Supplement,
BOEING: Means The Boeing Company.
BUSINESS DAY: Means any day other than a Saturday, a Sunday or a
day on which commercial banks are required or authorized to close in
Houston, Texas, New York, New York, Salt Lake City, Utah or, so long as any
Applicable Certificate is Outstanding, the city and state in which the
Trustee or any Loan Trustee maintains its Corporate Trust Office or
receives and disburses funds.
COMPANY: Has the meaning specified in the first paragraph of this
Trust Supplement.
CONTROLLING PARTY: Has the meaning specified in the applicable
Intercreditor Agreement.
DELIVERY NOTICE: Has the meaning specified in the NPA.
DELIVERY PERIOD TERMINATION DATE: Has the meaning specified in
the Related Pass Through Trust Supplement.
DEPOSIT AGREEMENT: Means the Deposit Agreement dated as of the
Issuance Date relating to the Applicable Certificates between the
Depositary and the Escrow Agent, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms.
DEPOSITARY: Means Credit Suisse First Boston, a banking
institution organized under the laws of Switzerland, acting through its New
York Branch.
DEPOSITS: Has the meaning specified in the Deposit Agreement.
DISTRIBUTION DATE: Means any Regular Distribution Date or Special
Distribution Date as the context requires.
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, Wells Fargo Bank Northwest,
National Association, and any replacement or successor therefor appointed
in accordance with the Escrow Agreement.
ESCROW AGREEMENT: Means the Escrow and Paying Agent Agreement
dated as of the Issuance Date relating to the Applicable Certificates,
among the Escrow Agent, the Escrow Paying Agent, the Related Trustee (and
after the Transfer Date, the Trustee) and the Underwriters, as the same may
be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
ESCROW PAYING AGENT: Means the Person acting as paying agent
under the Escrow Agreement.
ESCROW RECEIPT: Means the receipt substantially in the form
annexed to the Escrow Agreement representing a fractional undivided
interest in the funds held in escrow thereunder.
FINAL MATURITY DATE: Means December 1, 2006.
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 Amendment applicable to such Prior
Series, as further amended, supplemented or otherwise modified from time to
time in accordance with its terms.
INTERCREDITOR AMENDMENT: Means, for each Prior Series, the
Amendment No. 1 to 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), the other trustees party thereto, the
liquidity providers relating to the pass through certificates issued under
such Prior Series and Wilmington Trust Company, as subordination agent and
as trustee under the Intercreditor Agreement for such Prior Series.
INVESTORS: Means the Underwriters together with all subsequent
beneficial owners of the Applicable Certificates.
ISSUANCE DATE: Has the meaning specified in the recitals hereto.
LEASED AIRCRAFT INDENTURE: Means each "Leased Aircraft Indenture"
as defined in the Intercreditor Agreement for any Prior Series.
NEW AIRCRAFT: Has the meaning specified in the recitals hereto.
NOTE DOCUMENTS: Means the Series D Equipment Notes and, with
respect to any such Series D Equipment Note, the Indenture and the
Participation Agreement relating to such Series D Equipment Note.
NPA: Means the Note Purchase Agreement dated as of July 31, 2001
among the Related Trustee (and after the Transfer Date, the Trustee) the
Company, the Escrow Agent, the Escrow Paying Agent and Wilmington Trust
Company, as subordination agent under each of the Intercreditor Agreements,
providing for, among other things, the purchase of Series D Equipment Notes
by the Trustee on behalf of the Trust, as the same may be further amended,
supplemented or otherwise modified from time to time, in accordance with
its terms.
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 this Agreement.
OWNED AIRCRAFT: Has the meaning specified in the recitals hereto.
OWNED AIRCRAFT INDENTURE: Means each "Owned Aircraft Indenture"
as defined in the Intercreditor Agreement for any Prior Series.
PA AMENDMENT: Has the meaning specified in the NPA.
PARTICIPATION AGREEMENT: Means (i) in the case of each Owned
Aircraft, the Participation Agreement entered into prior to the Issuance
Date relating to such Owned Aircraft, as amended by the related PA
Amendment entered into pursuant to the NPA, as the same may be further
amended, supplemented or otherwise modified in accordance with its terms,
and (ii) in the case of each New Aircraft or Substitute Aircraft, a
Participation Agreement entered into after the Issuance Date by the Trustee
pursuant to the NPA, as the same may be amended, supplemented or otherwise
modified in accordance with its terms.
POOL BALANCE: Means, as of any date, (i) the original aggregate
face amount of the "Applicable Certificates" as defined in the Related Pass
Through Trust Agreement, less (ii) the aggregate amount of all payments
made in respect of the Applicable Certificates, the Applicable Certificates
(as defined in the Related Pass Through Trust Agreement) or the Deposits,
other than payments made in respect of interest or premium thereon or
reimbursement of any costs or expenses incurred in connection therewith.
The Pool Balance as of any Distribution Date shall be computed after giving
effect to any special distribution with respect to unused Deposits, payment
of principal of the Series D Equipment Notes or payment with respect to
other Trust Property and the distribution thereof to be made on that date.
POOL FACTOR: Means, as of any Distribution Date, the quotient
(rounded to the seventh decimal place) computed by dividing (i) the Pool
Balance by (ii) the original aggregate face amount of the "Applicable
Certificates" as defined in the Related Pass Through Trust Agreement. The
Pool Factor as of any Distribution Date shall be computed after giving
effect to any special distribution with respect to unused Deposits, payment
of principal of the Series D Equipment Notes or payments with respect to
other Trust Property and the distribution thereof to be made on that date.
PRIOR SERIES: Has the meaning specified in the recitals hereto.
PROSPECTUS SUPPLEMENT: Means the final Prospectus Supplement
dated July 13, 2001 relating to the offering of the Applicable
Certificates.
PTC EVENT OF DEFAULT: Means, with respect to any Prior Series,
"PTC Event of Default" as defined in the Intercreditor Agreement for such
Prior Series.
RELATED PASS THROUGH TRUST AGREEMENT: Means the Basic Agreement
as supplemented by the Trust Supplement No. 2001-2D-O dated the date hereof
(the "RELATED PASS THROUGH TRUST SUPPLEMENT"), relating to the Continental
Airlines Pass Through Trust 2001-2D-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
2001-2D-O, formed under the Related Pass Through Trust Agreement.
RELATED TRUSTEE: Means the trustee under the Related Pass Through
Trust Agreement.
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 D 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, Trust
Indenture Estate (as defined in each Leased Aircraft Indenture) or
Collateral (as defined in each Owned Aircraft Indenture).
SUBSTITUTE AIRCRAFT: Has the meaning specified in the NPA.
TRANSFER DATE: Means the moment of execution and delivery of the
Assignment and Assumption Agreement by each of the parties thereto.
TRANSFER DATE CERTIFICATES: Has the meaning specified in the
definition of "Applicable Certificates".
TRIGGERING EVENT: Means, with respect to any Prior Series,
"Triggering Event" as defined in the Intercreditor Agreement for such Prior
Series.
TRUST PROPERTY: Means (i) subject to the applicable Intercreditor
Agreement, each Series D Equipment Note 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 D
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.
2000-2 NOTE PURCHASE AGREEMENT: Has the meaning specified in the
NPA.
UNDERWRITERS: Means Morgan Stanley & Co. Incorporated and Credit
Suisse First Boston Corporation.
UNDERWRITING AGREEMENT: Means the Underwriting Agreement dated
July 13, 2001 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
STATEMENTS TO CERTIFICATEHOLDERS
Section 3.01. STATEMENTS TO APPLICABLE CERTIFICATEHOLDERS. (a) On
each Distribution Date, the Trustee will include with each distribution to
Applicable Certificateholders of a Scheduled Payment or Special Payment, as the
case may be, a statement setting forth the information provided below (in the
case of a Special Payment, reflecting in part the information provided by the
Escrow Paying Agent under the Escrow Agreement). Such statement shall set forth
(per $1,000 face amount Applicable Certificate as to (ii), (iii), (iv) and (v)
below) the following information:
(i) the aggregate amount of funds distributed on such Distribution
Date under the Agreement and under the Escrow Agreement, indicating the
amount allocable to each source;
(ii) the amount of such distribution under the Agreement allocable
to principal and the amount allocable to premium, if any;
(iii) the amount of such distribution under the Agreement allocable
to interest;
(iv) the amount of such distribution under the Escrow Agreement
allocable to interest;
(v) the amount of such distribution under the Escrow Agreement
allocable to unused Deposits, if any; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Applicable Certificates registered in the name
of a Clearing Agency, on the Record Date prior to each Distribution Date, the
Trustee will request from such Clearing Agency a securities position listing
setting forth the names of all Clearing Agency Participants reflected on such
Clearing Agency's books as holding interests in the Applicable Certificates on
such Record Date. On each Distribution Date, the Trustee will mail to each such
Clearing Agency Participant the statement described above and will make
available additional copies as requested by such Clearing Agency Participant for
forwarding to holders of interests in the Applicable Certificates.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the Trustee
shall furnish to each Person who at any time during such calendar year was an
Applicable Certificateholder of record a statement containing the sum of the
amounts determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and
(a)(v) above for such calendar year or, in the event such Person was an
Applicable Certificateholder of record during a portion of such calendar year,
for such portion of such year, and such other items as are readily available to
the Trustee and which an Applicable Certificateholder shall reasonably request
as necessary for the purpose of such Applicable Certificateholder's preparation
of its federal income tax returns. Such statement and such other items shall be
prepared on the basis of information supplied to the Trustee by the Clearing
Agency Participants and shall be delivered by the Trustee to such Clearing
Agency Participants to be available for forwarding by such Clearing Agency
Participants to the holders of interests in the Applicable Certificates in the
manner described in Section 3.01(a) of this Trust Supplement.
(c) Promptly following the date of any early redemption or any
default in the payment of principal or interest in respect of, any of the Series
D Equipment Notes held in the Applicable Trust, or any Final Withdrawal, the
Trustee (if the Related Trustee has not already done so) shall furnish to
Applicable Certificateholders of record on such date a statement setting forth
(x) the expected Pool Balance for the Regular Distribution Date following such
date and (y) the Pool Factor for such Regular Distribution Date. 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) This Section 3.01 supersedes and replaces Section 4.03 of the
Basic Agreement, with respect to the Applicable Trust.
ARTICLE IV
DEFAULT
Section 4.01. PURCHASE RIGHTS OF CERTIFICATEHOLDERS. (a) At any time
after the occurrence and during the continuation of a Triggering Event under a
Prior Series, each Applicable Certificateholder shall have the right (which
shall not expire (i) in the case of the 1998-3, 1999-2, 2000-1 or 2000-2 Prior
Series, (x) upon any purchase of Class A-2 Certificates issued under such Prior
Series pursuant to the Class A-1 Trust Agreement with respect to such Prior
Series, (y) any purchase of Class A-1 Certificates issued under such Prior
Series pursuant to the Class A-2 Trust Agreement with respect to such Prior
Series or (z) any purchase of Class A-1 Certificates issued under such Prior
Series and Class A-2 Certificates issued under such Prior Series pursuant to the
Class B Trust Agreement with respect to such Prior Series, (ii) in the case of
the 1997-4, 1998-1 or 1999-1 Prior Series, any purchase of Class A Certificates
issued under such Prior Series pursuant to the Class B Trust Agreement with
respect to such Prior Series, (iii) in the case of the 1998-3, 1999-2 or 2000-1
Prior Series, (x) any purchase of Class A-1 Certificates issued under such Prior
Series, Class A-2 Certificates issued under such Prior Series, Class B
Certificates issued under such Prior Series and Class C-2 Certificates issued
under such Prior Series pursuant to the Class C-1 Trust Agreement with respect
to such Prior Series or (y) any purchase of Class A-1 Certificates issued under
such Prior Series, Class A-2 Certificates issued under such Prior Series, Class
B Certificates issued under such Prior Series and Class C-1 Certificates issued
under such Prior Series pursuant to the Class C-2 Trust Agreement with respect
to such Prior Series, (iv) in the case of the 1997-4, 1998-1 or 1999-1 Prior
Series, any purchase of Class A Certificates issued under such Prior Series and
Class B Certificates issued under such Prior Series pursuant to the Class C
Trust Agreement with respect to such Prior Series, and (v) in the case of the
2000-2 Prior Series, any purchase of Class A-1 Certificates issued under such
Prior Series, Class A-2 Certificates issued under such Prior Series and Class B
Certificates issued under such Prior Series pursuant to the Class C Trust
Agreement with respect to such Prior Series) to purchase, for the purchase
prices set forth in (I) in the case of the 1997-4, 1998-1 or 1999-1 Prior
Series, the Class A Trust Agreement with respect to such Prior Series, the Class
B Trust Agreement with respect to such Prior Series and the Class C Trust
Agreement with respect to such Prior Series, (II) in the case of the 1998-3,
1999-2 or 2000-1 Prior Series, the Class A-1 Trust Agreement with respect to
such Prior Series, the Class A-2 Trust Agreement with respect such Prior Series,
the Class B Trust Agreement with respect to such Prior Series, the Class C-1
Trust Agreement with respect to such Prior Series and the Class C-2 Trust
Agreement with respect to such Prior Series, or (III) in the case of the 2000-2
Prior Series, the Class A-1 Trust Agreement with respect to such Prior Series,
the Class A-2 Trust Agreement with respect to such Prior Series, the Class B
Trust Agreement with respect to such Prior Series and the Class C Trust
Agreement with respect to such Prior Series (with respect to such Prior Series,
the "SENIOR TRUST AGREEMENTS"), respectively, all, but not less than all (X) in
the case of the 1997-4, 1998-1 or 1999-1 Prior Series, the Class A Certificates
issued under such Prior Series, the Class B Certificates issued under such Prior
Series and the Class C Certificates issued under such Prior Series, (Y) in the
case of the 1998-3, 1999-2 or 2000-1 Prior Series, the Class A-1 Certificates
issued under such Prior Series, the Class A-2 Certificates issued under such
Prior Series, the Class B Certificates issued under such Prior Series, the Class
C-1 Certificates issued under such Prior Series and the Class C-2 Certificates
issued under such Prior Series, or (Z) in the case of the 2000-2 Prior Series,
the Class A-1 Certificates issued under such Prior Series, the Class A-2
Certificates issued under such Prior Series, the Class B Certificates issued
under such Prior Series and the Class C Certificates issued under such Prior
Series (with respect to such Prior Series, the "SENIOR CERTIFICATES") upon ten
days' written notice to the trustees under each of the Senior Trust Agreements
with respect to such Prior Series and each other Applicable Certificateholder,
PROVIDED that (A) if prior to the end of such ten-day period any other
Applicable Certificateholder notifies such purchasing Applicable
Certificateholder that such other Applicable Certificateholder wants to
participate in such purchase, then such other Applicable Certificateholder 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
ten-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-1 Certificate", "Class A-1
Trust Agreement", "Class A-2 Certificate", "Class A-2 Trust Agreement", "Class A
Certificate", "Class A Trust Agreement", "Class B Certificate", "Class B Trust
Agreement", "Class C-1 Certificate", "Class C-1 Trust Agreement", "Class C-2
Certificate", "Class C-2 Trust Agreement", "Class C Certificate" and "Class C
Trust Agreement" 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. ACQUISITION OF TRUST PROPERTY. (a) The Trustee is
hereby irrevocably authorized and directed to execute and deliver the Assignment
and Assumption Agreement on the date specified in Section 7.01 of the Related
Pass Through Trust Supplement, subject only to the satisfaction of the
conditions set forth in said Section 7.01. The Agreement (except only for this
sentence and the immediately preceding sentence hereof, which are effective upon
execution and delivery hereof) shall become effective upon the execution and
delivery of the Assignment and Assumption Agreement by the Trustee and the
Related Trustee, automatically and without any further signature or action on
the part of the Company and the Trustee, and shall thereupon constitute the
legal, valid and binding obligation of the parties hereto enforceable against
each of the parties hereto in accordance with its terms. Upon such execution and
delivery of the Assignment and Assumption Agreement, the Related Trust shall be
terminated, the Applicable Certificateholders shall receive beneficial interests
in the Applicable Trust in exchange for their interests in the Related Trust
equal to their respective beneficial interests in the Related Trust and the
"Outstanding" (as defined in the Related Pass Through Trust Agreement) pass
through certificates representing fractional undivided interests in the Related
Trust shall be deemed for all purposes of the Agreement, without further
signature or action of any party or Certificateholder, to be Certificates
representing the same Fractional Undivided Interests in the Trust and Trust
Property. By acceptance of its Applicable Certificate, each Applicable
Certificateholder consents to and ratifies such assignment, transfer and
delivery of the trust property of the Related Trust to the Trustee upon the
execution and delivery of the Assignment and Assumption Agreement. The
provisions of this Section 5.01(a) supersede and replace the provisions of
Section 2.02 of the Basic Agreement with respect to the Applicable Trust, and
all provisions of the Basic Agreement relating to Postponed Notes or Section
2.02 of the Basic Agreement shall not apply to the Applicable Trust.
(b) The Trustee, upon the execution and delivery of the Assignment
and Assumption Agreement, acknowledges its acceptance of all right, title and
interest in and to the Trust Property and declares that the Trustee holds and
will hold such right, title and interest for the benefit of all then present and
future Applicable Certificateholders, upon the trusts herein and in the Basic
Agreement set forth. By the acceptance of each Applicable Certificate issued to
it under the Related Pass Through Trust Agreement and deemed issued under the
Agreement, each Holder of any such Applicable Certificate as grantor of the
Applicable Trust thereby joins in the creation and declaration of the Applicable
Trust. The provisions of this Section 5.01(b) supersede and replace the
provisions of Section 2.03 of the Basic Agreement, with respect to the
Applicable Trust. The Trust shall not be authorized or empowered to purchase any
Series D Equipment Note issued pursuant to the last sentence of the first
paragraph of Section 2.02 of any Owned Aircraft Indenture.
Section 5.02. [Intentionally Omitted]
Section 5.03. THE TRUSTEE. (a) Subject to Section 5.04 of this Trust
Supplement and Section 7.15 of the Basic Agreement, the Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Trust Supplement, the Deposit Agreement, the NPA or the
Escrow Agreement or the due execution hereof or thereof by the Company or the
other parties thereto (other than the Trustee), or for or in respect of the
recitals and statements contained herein or therein, all of which recitals and
statements are made solely by the Company, except that the Trustee hereby
represents and warrants that each of this Trust Supplement, the Basic Agreement,
each Applicable Certificate, each Intercreditor Agreement, each Intercreditor
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 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 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
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, 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
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 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 Company may (but will not be required to), and the
Trustee (subject to Section 9.03 of the Basic Agreement) shall, at the Company's
request, at any time and from time to time, enter into one or more agreements
supplemental to the Escrow Agreement, the NPA or the Deposit Agreement, for any
of the purposes set forth in clauses (1) through (9) of such Section 9.01, and
(without limitation of the foregoing or Section 9.01 of the Basic Agreement) (a)
clauses (2) and (3) of such Section 9.01 shall also be deemed to include the
Company's obligations under (in the case of clause (2)), and the Company's
rights and powers conferred by (in the case of clause (3)), the NPA, and (b)
references in clauses (4), (6) and (7) of such Section 9.01 to "any
Intercreditor Agreement" shall also be deemed to refer to "any Intercreditor
Agreement, the Escrow Agreement, the NPA or the Deposit Agreement".
Section 6.03. SUPPLEMENTAL AGREEMENTS WITH CONSENT OF APPLICABLE
CERTIFICATEHOLDERS. Without limitation of Section 9.02 of the Basic Agreement,
the provisions of Section 9.02 of the Basic Agreement shall apply to agreements
or amendments for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Escrow Agreement, the Deposit
Agreement or the NPA or modifying in any manner the rights and obligations of
the Applicable Certificateholders under the Escrow Agreement, the Deposit
Agreement or the NPA; provided that (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".
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 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
MISCELLANEOUS PROVISIONS
Section 8.01. BASIC AGREEMENT RATIFIED. Except and so far as herein
expressly provided, all of the provisions, terms and conditions of the Basic
Agreement are in all respects ratified and confirmed; and the Basic Agreement
and this Trust Supplement shall be taken, read and construed as one and the same
instrument. All replacements of provisions of, and other modifications of the
Basic Agreement set forth in this Trust Supplement are solely with respect to
the Applicable Trust.
SECTION 8.02. GOVERNING LAW. THE AGREEMENT AND THE APPLICABLE
CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK. THIS SECTION 8.02 SUPERSEDES AND REPLACES SECTION 12.05
OF THE BASIC AGREEMENT, WITH RESPECT TO THE APPLICABLE TRUST.
Section 8.03. EXECUTION IN COUNTERPARTS. This Trust Supplement may
be executed in any number of counterparts, each of which shall be an original,
but such counterparts shall together constitute but one and the same instrument.
Section 8.04. INTENTION OF PARTIES. The parties hereto intend that
the Applicable Trust be classified for U.S. federal income tax purposes as a
grantor trust under Subpart E, Part I of Subchapter J of the Internal Revenue
Code of 1986, as amended, and not as a trust or association taxable as a
corporation or as a partnership. Each Applicable Certificateholder and Investor,
by its acceptance of its Applicable Certificate or a beneficial interest
therein, agrees to treat the Applicable Trust as a grantor trust for all U.S.
federal, state and local income tax purposes. The powers granted and obligations
undertaken pursuant to the Agreement shall be so construed so as to further such
intent.
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Trust Supplement to be duly executed by their respective officers thereto duly
authorized, as of the day and year first written above.
CONTINENTAL AIRLINES, INC.
By:
----------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee
By:
----------------------------------
Name:
Title:
AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (1997-4)
AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (this "AMENDMENT NO. 1")
dated as of July 31, 2001, among CONTINENTAL AIRLINES, INC., a Delaware
corporation ("CONTINENTAL"); WILMINGTON TRUST COMPANY, a Delaware corporation,
not in its individual capacity but solely as Trustee under the Continental
Airlines Pass Through Trust 1997-4A-S (the "CLASS A TRUSTEE"), as Trustee under
the Continental Airlines Pass Through Trust 1997-4B-S (the "CLASS B TRUSTEE"),
as Trustee under the Continental Airlines Pass Through Trust 1997-4C-S (the
"CLASS C TRUSTEE") and as Trustee under the Continental Airlines Pass Through
Trust 2001-2D-O (the "CLASS D TRUSTEE"); ABN AMRO BANK N.V., a bank organized
under the laws of The Netherlands, acting through its Chicago branch, as a Class
A Liquidity Provider, a Class B Liquidity Provider and a Class C Liquidity
Provider; WESTDEUTSCHE LANDESBANK GIROZENTRALE, a bank organized under the laws
of the State of North Rhine-Westphalia, Germany, acting through its New York
branch, as a Class A Liquidity Provider, a Class B Liquidity Provider and a
Class C Liquidity Provider; and WILMINGTON TRUST COMPANY, not in its individual
capacity except as expressly set forth in the Intercreditor Agreement referred
to below, but solely as Subordination Agent and trustee under the Intercreditor
Agreement referred to below (in such capacity, together with any duly appointed
successor, the "SUBORDINATION AGENT").
WHEREAS, Wilmington Trust Company, not in its individual capacity,
but solely as Class A Trustee, Class B Trustee and Class C Trustee, ABN AMRO
Bank N.V., as a Class A Liquidity Provider, a Class B Liquidity Provider and a
Class C Liquidity Provider, Westdeutsche Landesbank Girozentrale, as a Class A
Liquidity Provider, a Class B Liquidity Provider and a Class C 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, have entered into the Intercreditor Agreement dated as of October
23, 1997 (the "ORIGINAL INTERCREDITOR AGREEMENT", and as 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, on the date hereof, a Continental Airlines Pass Through
Trust 2001-2D-O will be created to issue pass through certificates designated as
"Series 2001-2D-O" (the "CLASS D CERTIFICATES") pursuant to a Pass Through Trust
Agreement dated as of September 25, 1997 between Continental and Wilmington
Trust Company, as supplemented by Supplement No. 2001-2D-O thereto dated as of
the date hereof;
WHEREAS, the Class D Trustee will purchase Series D Equipment Notes
issued by Continental under certain Owned Aircraft Indentures using a portion of
the proceeds from the issuance of the Class D Certificates;
WHEREAS, in connection with the issuance of such Series D Equipment
Notes to the Class D Trustee, the parties hereto wish to amend the Original
Intercreditor Agreement in accordance with Section 9.1(a) and 9.1(c) of the
Original Intercreditor Agreement.
WHEREAS, the Ratings Confirmation required under Section 4(a)(vi) of
the Note Purchase Agreement in order to issue such Series D Equipment Notes has
been obtained.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. Except as otherwise defined in this
Amendment No. 1, terms defined in Section 1.1 of the Original Intercreditor
Agreement are used herein as defined therein.
ARTICLE II
AMENDMENTS TO THE ORIGINAL INTERCREDITOR
AGREEMENT PURSUANT TO SECTION 9.1(a)
SECTION 2.1 CERTAIN DEFINITIONS. Pursuant to the clause (x)(ii) of
the first proviso in the first sentence of Section 9.1(a) of the Original
Intercreditor Agreement, Section 1.1 of the Original Intercreditor Agreement is
hereby amended as follows:
(a) the term "Class D Trust" is amended to read as follows: "CLASS D
TRUST" means (A)(i) prior to the Transfer, the Continental Airlines Pass Through
Trust 2001-2D-O created and administered pursuant to the Class D Trust Agreement
and (ii) after the Transfer, the Continental Airlines Pass Through Trust
2001-2D-S created and administered pursuant to the Class D Trust Agreement and
(B) after the Final Distribution has been made with respect to the Class D
Certificates, such other pass through trust that acquires Series D Equipment
Notes, if and when established in accordance with the provisions of Section
4(a)(vi) of the Class D Note Purchase Agreement and subject to the provisions of
Section 9.1(c) of the Intercreditor Agreement.
(b) the term "Class D Trust Agreement" is added in alphabetical
order reading as follows: "CLASS D TRUST AGREEMENT" means (A)(i) prior to the
Transfer, the Basic Agreement, as supplemented by the Supplement No. 2001-2D-O
thereto dated as of the Class D Closing Date, governing the creation and
administration of the Continental Airlines Pass Through Trust 2001-2D-O and the
issuance of the Class D Certificates, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms, and (ii)
after the Transfer, the Basic Agreement, as supplemented by the Supplement No.
2001-2D-S thereto, governing the creation and administration of the Continental
Airlines Pass Through Trust 2001-2D-S and the issuance of the Class D
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 D Certificates, such other
agreement executed by Continental establishing a Class D Trust in accordance
with the provisions of Section 4(a)(vi) of the Class D Note Purchase Agreement
and subject to the provisions of Section 9.1(c) of the Intercreditor Agreement.
SECTION 2.2 FURTHER AMENDMENT. Section 9.1(c) of the Original
Intercreditor Agreement is amended by adding a new paragraph at the end thereof
reading as follows:
"If, with respect to any Aircraft, Series D Equipment Notes are
issued to any Person other than the Class D Trust, this Agreement shall be
amended by written agreement of Continental and the Subordination Agent to (i)
provide for each holder of a Series D Equipment Note to be bound by the
provisions of Section 2.6(a) hereof so that the Controlling Party, among other
things, shall be entitled to direct the Loan Trustee as provided therein (and
such Series D Equipment Notes shall make effective provision therefor so as to
bind each holder thereof to such provisions of Section 2.6(a) hereof) and (ii)
to revise the definitions of "Controlling Party" and "Equipment Notes", as
appropriate, to reflect the issuance of the Series D Equipment Notes (and the
prior rights, as against the holders of such Series D Equipment Notes, of the
Class A Trustee, the Class B Trustee and the Class C Trustee to be such
"Controlling Party"). No such amendment shall materially adversely affect any
Trustee."
ARTICLE III
AMENDMENTS TO THE ORIGINAL INTERCREDITOR AGREEMENT PURSUANT TO
SECTION 9.1(c)
SECTION 3.1. ADDITIONAL PARTY. Pursuant to Section 9.1(c) of the
Original Intercreditor Agreement, the Original Intercreditor Agreement is hereby
amended by adding the Class D Trustee 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 Continental and the Subordination Agent, the Class D
Trustee shall be a party to the Intercreditor Agreement as fully and with the
same force and effect as if the Class D Trustee had originally executed and
delivered a counterpart thereof (it being understood and agreed that the fifth
and seventh "WHEREAS" clauses in the preliminary statements to the Original
Intercreditor Agreement do not apply to the Class D Certificates).
SECTION 3.2. FURTHER AMENDMENTS. (a) Section 1.1 of the Original
Intercreditor Agreement is amended as follows:
(i) the term "Adjusted Expected Distributions" is amended (i) by
deleting the word "on" in clause (x) and adding in lieu thereof the following:
"calculated at the Stated Interest Rate on the Pool Balance of", (ii) by adding
the words "for such Certificates" after the words "the first Distribution Date"
in clause (y)(A)(x) thereof, in clause (y)(A)(y)(iii) thereof and in two
instances in clause (y)(B)(i) thereof, and (iii) by adding at the end of such
definition an additional sentence as follows: "For purposes of calculating
Adjusted Expected Distributions with respect to the Certificates of the Class D
Trust, the original aggregate face amount of the Certificates of such Trust
shall be deemed to be $5,000."
(ii) the term "Aggregate LTV Collateral Amount" is amended by adding
at the end of such definition the following: "minus, in the case of the Class D
Certificates, the sum of the applicable LTV Collateral Amounts for each Leased
Aircraft".
(iii) the term "Certificate" is amended by replacing the word "or"
appearing before the words "a Class C Certificate" with a comma and adding the
words "or a Class D Certificate" after the words "a Class C Certificate".
(iv) the term "Class D Certificateholder" is added in alphabetical
order reading as follows: "CLASS D CERTIFICATEHOLDER" means, at any time, any
holder of one or more Class D Certificates.
(v) the term "Class D Closing Date" is added in alphabetical order
reading as follows: "CLASS D CLOSING DATE" means July 31, 2001.
(vi) the term "Class D Note Purchase Agreement" is added in
alphabetical order reading as follows: "CLASS D NOTE PURCHASE AGREEMENT" means
the Note Purchase Agreement, dated as of the Class D Closing Date, among
Continental, the Class D Trustee, the escrow agent named therein, WTC, as
Subordination Agent and as subordination agent under certain other intercreditor
agreements, and the Paying Agent.
(vii) the "Class D Trustee" is added in alphabetical order reading
as follows: "CLASS D TRUSTEE" means WTC, not in its individual capacity except
as expressly set forth in the Class D Trust Agreement, but solely as trustee
under the Class D Trust Agreement together with any successor trustee appointed
pursuant thereto.
(viii) the term "Class D Underwriting Agreement" is added in
alphabetical order reading as follows: "CLASS D UNDERWRITING AGREEMENT" means
the Underwriting Agreement dated July 13, 2001 among Morgan Stanley & Co.
Incorporated, Credit Suisse First Boston Corporation, the Depositary and
Continental, relating to the purchase of the Class D Certificates by Morgan
Stanley & Co. Incorporated and Credit Suisse First Boston Corporation, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
(ix) the term "Equipment Notes" is amended by replacing the word
"and" appearing before the words "the Series C Equipment Notes" with a comma and
inserting the words "and the Series D Equipment Notes" after the words "the
Series C Equipment Notes".
(x) the term "Expected Distributions" is amended (i) by deleting the
word "on" in clause (x) and adding in lieu thereof the following: "calculated at
the Stated Interest Rate on the Pool Balance of", (ii) by adding the words "for
such Certificates" after the words "the first Distribution Date" in clause
(y)(A) thereof and in clause (y)(B)(ii) thereof, and (iii) by adding at the end
of such definition an additional sentence as follows: "For purposes of
calculating Expected Distributions with respect to the Certificates of the Class
D Trust, the original aggregate face amount of the Certificates of such Trust
shall be deemed to be $5,000."
(xi) the term "Final Distributions" is amended by deleting the word
"on" in clause (x) and adding in lieu thereof the following: "calculated at the
Stated Interest Rate on the Pool Balance of".
(xii) the term "Final Legal Distribution Date" is amended by
replacing the word "and" appearing before the numeral "(iii)" with a comma and
adding at the end of such definition the words "and (iv) with respect to the
Class D Certificates, December 1, 2006."
(xiii) the term "Financing Agreement" is amended by replacing the
word "and" with a comma and adding at the end of such definition the words "and
the Class D Note Purchase Agreement".
(xiv) the term "LTV Collateral Amount" is amended by deleting the
words "secured by" appearing in clause (ii) therein and adding in lieu thereof
the following: "issued in respect of".
(xv) the term "LTV Ratio" is amended by deleting the word "and"
appearing therein and adding at the end of such definition the following: "and
for the Class D Certificates, 69.0%."
(xvi) the term "Operative Agreements" is amended by inserting the
words "the Class D Underwriting Agreement," after the words "the Underwriting
Agreement".
(xvii) the term "Performing Equipment Note" is amended to read as
follows: "PERFORMING EQUIPMENT NOTE" means an Equipment Note with respect to
which no payment default has occurred and is continuing (without giving effect
to any Acceleration); PROVIDED that in the event of a bankruptcy proceeding
under Title 11 of the United States Code (the "BANKRUPTCY CODE") in which
Continental is a debtor any payment default existing during the 60-day period
under Section 1110(a)(2)(A) of the Bankruptcy Code (or such longer period as may
apply under Section 1110(b) of the Bankruptcy Code or as may apply for the cure
of such payment default under Section 1110(a)(2)(B) of the Bankruptcy Code)
shall not be taken into consideration until the expiration of the applicable
period.
(xviii) the term "Pool Balance" is amended to read as follows: "POOL
BALANCE" means, with respect to each Trust or the Certificates issued by any
Trust, as of any date, (i) the original aggregate face amount of the
Certificates of such Trust (or, in the case of the Class D Trust or the Class D
Certificates, $5,000) LESS (ii) the aggregate amount of all payments made in
respect of the Certificates of such Trust under this Agreement or in respect of
Deposits relating to such Trust other than payments made under this Agreement in
respect of interest or premium thereon or reimbursement of any costs and
expenses in connection therewith. The Pool Balance for each Trust or for the
Certificates issued by any Trust as of any Distribution Date shall be computed
after giving effect to any special distribution with respect to unused Deposits,
payment of principal of the Equipment Notes or payment with respect to other
Trust Property held in such Trust and the distribution thereof pursuant to this
Agreement (except in the case of such unused Deposits) to be made on that date.
(xix) the term "PTC Event of Default" is amended by adding after the
words "interest due on such Certificates" appearing in clause (ii) thereof the
following: "(calculated at the Stated Interest Rate on the Pool Balance
thereof)".
(xx) the term "Regular Distribution Dates" is amended to read as
follows: "REGULAR DISTRIBUTION DATES" means (i) with respect to the Liquidity
Facilities and the Class A Certificates, Class B Certificates and Class C
Certificates, each January 2 and July 2, commencing on January 2, 1998, and (ii)
with respect to the Class D Certificates, each June 1 and December 1, commencing
on December 1, 2001; PROVIDED, HOWEVER, that, if any such day shall not be a
Business Day, the related distribution shall be made on the next succeeding
Business Day without additional interest.
(xxi) the term "Series D Equipment Notes" is added in alphabetical
order reading as follows: "SERIES D EQUIPMENT NOTES" means (A) the 7.568% Series
D Equipment Notes issued pursuant to any Owned Aircraft Indenture by Continental
and authenticated by the Loan Trustee thereunder, and any such Equipment Notes
issued in exchange therefore or replacement thereof pursuant to the terms of
such Owned Aircraft Indenture, and (B) after the Final Distribution has been
made with respect to the Class D Certificates, equipment notes, if any, issued
pursuant to any Indenture by the related Owner Trustee or Continental, as the
case may be, in accordance with Section 4(a)(vi) of the Class D Note Purchase
Agreement and subject to the provisions of Section 9.1(c) of the Intercreditor
Agreement and authenticated by the Loan Trustee under such Indenture, and
designated as "Series D" thereunder, and any such equipment notes issued in
exchange therefor or replacement thereof pursuant to the terms of such
Indenture.
(xxii) the term "Stated Interest Rate" is amended by deleting the
word "and" appearing before the numeral "(iii)" and adding at the end of such
definition the following: ", and (iv) with respect to the Class D Certificates,
7.568% per annum".
(xxiii) the term "Successor Trusts" is amended by replacing the word
"and" appearing therein with a comma and adding at the end of such definition
the following: "and Continental Airlines Pass Through Trust 2001-2D-S".
(xxiv) the term "Trust" is amended by replacing the word "or"
appearing before the words "the Class C Trust" with a comma and adding at the
end of such definition the words "or the Class D Trust".
(xxv) the term "Trust Agreement" is amended by replacing the word
"or" appearing before the words "the Class C Trust Agreement" with a comma and
adding at the end of such definition the words "or the Class D Trust Agreement".
(xxvi) the term "Trustee" is amended by replacing the word "or"
appearing before the words "the Class C Trustee" with a comma and adding at the
end of such definition the words "or the Class D Trustee".
(b) Section 2.4(b)(i) of the Original Intercreditor Agreement is
amended by (i) replacing the words "Equipment Notes" appearing twice in
subclause (B)(y) of each of clauses FIRST and SECOND thereof with the words "the
Series A Equipment Notes, the Series B Equipment Notes and the Series C
Equipment Notes", (ii) deleting the word "and" appearing at the end of clause
SEVENTH thereof, (iii) amending the word "EIGHTH" to read "NINTH", (iv)
inserting after clause SEVENTH thereof a new clause EIGHTH reading as follows:
"EIGHTH, such amount as shall be required to pay in full Expected Distributions
to the holders of the Class D Certificates on such Special Distribution Date
shall be distributed to the Class D Trustee; and" and (v) deleting the word "on"
appearing in the last sentence before the words "such Certificates together
with" and adding in lieu thereof the following: "calculated at the Stated
Interest Rate on the Pool Balance of".
(c) Section 2.6(b) of the Original Intercreditor Agreement is
amended by deleting the word "and" appearing before the letter "(z)" in the
first sentence thereof and inserting after the words "the Class C Trustee" at
the end of the first sentence thereof the following: "; and (aa) upon payment of
Final Distributions to the holders of Class C Certificates, the Class D
Trustee".
(d) Section 3.1(a) of the Original Intercreditor Agreement is
amended by changing the word "EIGHTH" appearing in clause (v) to "NINTH",
changing the numeral "(iv)" to the numeral "(v)" and the numeral "(v)" to the
numeral "(vi)" and inserting after clause (iii) thereof a new clause (iv)
reading as follows: "(iv) With respect to the Class D Certificates, the Class D
Trustee shall separately set forth the amounts to be paid in accordance with
clause "EIGHTH" of Section 3.2 or 2.4(b), as the case may be, hereof;".
(e) Section 3.1(b) of the Original Intercreditor Agreement is
amended by changing the numeral "(iv)" to the numeral "(v)" and the numeral
"(v)" to the numeral "(vi)" and inserting after clause (iii) thereof a new
clause (iv) reading as follows: "(iv) With respect to the Class D Certificates,
the Class D Trustee shall separately set forth the amounts to be paid in
accordance with clauses "FIRST" (to reimburse payments made by the Class D
Certificateholders pursuant to subclause (iii) of clause "FIRST" of Section 3.3
hereof) and "TENTH" of Section 3.3 hereof;"
(f) Section 3.1(f) of the Original Intercreditor Agreement is
amended to change the word "NINTH" appearing twice therein to the word "TENTH".
(g) Section 3.2 of the Original Intercreditor Agreement is amended
by (i) inserting after the words "Section 3.1(a) hereof" but before the colon
appearing in the first sentence thereof the following: "(PROVIDED, that (x) in
the case of each Regular Distribution Date for the Class D Certificates that is
not a Special Distribution Date, amounts shall be payable under clauses FIFTH
through SEVENTH of this Section 3.2 if and only if on the immediately preceding
Distribution Date, any amounts payable under such clauses FIFTH through SEVENTH
were not distributed in full due to the Subordination Agent not having
sufficient funds (after the application of Section 3.6(b)) on such Distribution
Date, and if any such amounts are so payable, such amount as the Subordination
Agent shall have available for distribution after giving effect to clauses FIRST
through FOURTH of this Section 3.2 up to an amount sufficient to pay such
amounts (determined as of such preceding Distribution Date) shall be deposited
in the Special Payments Account and distributed as a Special Payment, and (y) in
the case of each Regular Distribution Date (other than a Regular Distribution
Date for the Class D Certificates) that is not a Special Distribution Date,
amounts shall be payable under clause EIGHTH of this Section 3.2 if and only if
on the immediately preceding Distribution Date, any amounts payable under such
clause EIGHTH were not distributed in full due to the Subordination Agent not
having sufficient funds on such Distribution Date, and if any such amounts are
so payable, such amount as the Subordination Agent shall have available for
distribution after giving effect to clauses FIRST through SEVENTH of this
Section 3.2 up to an amount sufficient to pay such amounts (determined as of
such preceding Distribution Date) shall be deposited in the Special Payments
Account and distributed as a Special Payment)", (ii) amending the word "EIGHTH"
to read "NINTH", (iii) amending the word "NINTH" to read "TENTH" and (iv)
inserting after clause SEVENTH thereof a new clause EIGHTH reading as follows:
"EIGHTH, such amount as shall be required to pay in full Expected Distributions
to the holders of the Class D Certificates on such Distribution Date shall be
distributed to the Class D Trustee;".
(h) Section 3.3 of the Original Intercreditor Agreement is amended
by (i) deleting the word "and" appearing at the end of clause EIGHTH thereof,
(ii) replacing the period at the end of clause NINTH with the following: "; and"
and (iii) inserting at the end of such Section 3.3 a new clause TENTH reading as
follows: "TENTH, such amount remaining as shall be required to pay in full
Adjusted Expected Distributions on the Class D Certificates shall be distributed
to the Class D Trustee".
(i) Section 3.4(c) of the Original Intercreditor Agreement is
amended by changing the word "EIGHTH" appearing in the proviso therein to the
word "NINTH", changing the word "or" appearing in such proviso to a comma and
inserting the words "or "EIGHTH"" after the word ""SEVENTH"" appearing in such
proviso.
(j) Section 3.4 of the Original Intercreditor Agreement is amended
by adding a new subclause (d) reading as follows:
"(d) Notwithstanding the priority of payments specified in Sections
2.4(b)(i), 3.2 and 3.3, all payments received by the Subordination Agent under
any Owned Aircraft Indenture securing Equipment Notes of any Prior Series and to
be applied by the terms of such Owned Aircraft Indenture to the Series D
Equipment Notes issued in respect of any other Prior Series shall be promptly
distributed to the Class D Trustee. The terms "Equipment Notes", "Prior Series"
and "Series D Equipment Notes" as used in this Section 3.4(d) shall have the
respective meanings specified therefor in the Class D Note Purchase Agreement."
(k) Section 3.6(a) of the Original Intercreditor Agreement is
amended by adding the words "(other than a Regular Distribution Date with
respect to the Class D Certificates that is not a Special Distribution Date)"
after the words "any Distribution Date" appearing therein.
(l) Section 3.6(f) of the Original Intercreditor Agreement is
amended by adding the words "(other than a Regular Distribution Date with
respect to the Class D Certificates that is not a Special Distribution Date)"
after the words "each Distribution Date" appearing in each of clauses (i), (ii)
and (iii) thereof.
(m) Section 6.1 of the Original Intercreditor Agreement is amended
by (i) replacing the word "and" appearing before the words "the Class C Trustee"
in the first sentence thereof with a comma and (ii) inserting the words "and the
Class D Trustee" after the words "the Class C Trustee" in the first sentence
thereof.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 MISCELLANEOUS. The amendments to the Original
Intercreditor Agreement contained in Articles II and III hereof shall become
effective as of the date hereof, and from and after the date hereof, each
reference in the Intercreditor Agreement to "this Agreement", and each reference
in the Intercreditor Agreement or in any other Operative Agreement to the
"Intercreditor Agreement" or any like expression referring to the Intercreditor
Agreement, shall be deemed to refer to the Original Intercreditor Agreement as
amended by this Amendment No. 1. The Original Intercreditor Agreement, as
amended hereby, shall remain unchanged and in full force and effect. Each
Liquidity Provider, by its execution and delivery of this Amendment No. 1,
confirms that all of its obligations under the Intercreditor Agreement and the
Liquidity Facilities provided by such Liquidity Provider remain unchanged and in
full force and effect. Each party hereto agrees to execute and deliver all such
further agreements or documents, if any, as shall be necessary to give effect to
the provisions of this Amendment No. 1. This Amendment No. 1 may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument, and any of the parties hereto may execute this Amendment
No. 1 by signing any such counterpart. This Amendment No. 1 shall be governed
by, and construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written, and acknowledge that
this Amendment No. 1 has been made and delivered in the City of New York, and
this Amendment No. 1 has become effective only upon such execution and delivery.
CONTINENTAL AIRLINES, INC.
By
----------------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Class A
Trustee, Class B Trustee, Class C Trustee and Class
D Trustee
By
----------------------------------------------------
Name:
Title:
ABN AMRO BANK N.V., CHICAGO BRANCH,
as a Class A Liquidity Provider, a Class B Liquidity
Provider and a Class C Liquidity Provider
By
----------------------------------------------------
Name:
Title:
By
----------------------------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH,
as a Class A Liquidity Provider, a Class B Liquidity
Provider and a Class C Liquidity Provider
By
----------------------------------------------------
Name:
Title:
By
----------------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity except as expressly set
forth herein but solely as Subordination Agent and
Trustee
By
----------------------------------------------------
Name:
Title:
AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (1998-1)
AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (this "AMENDMENT NO. 1")
dated as of July 31, 2001, among CONTINENTAL AIRLINES, INC., a Delaware
corporation ("CONTINENTAL"); WILMINGTON TRUST COMPANY, a Delaware corporation,
not in its individual capacity but solely as Trustee under the Continental
Airlines Pass Through Trust 1998-1A-S (the "CLASS A TRUSTEE"), as Trustee under
the Continental Airlines Pass Through Trust 1998-1B-S (the "CLASS B TRUSTEE"),
as Trustee under the Continental Airlines Pass Through Trust 1998-1C-S (the
"CLASS C TRUSTEE") and as Trustee under the Continental Airlines Pass Through
Trust 2001-2D-O (the "CLASS D TRUSTEE"); AIG MATCHED FUNDING CORP., a Delaware
corporation, as Class A Liquidity Provider, Class B Liquidity Provider and Class
C Liquidity Provider; and WILMINGTON TRUST COMPANY, not in its individual
capacity except as expressly set forth in the Intercreditor Agreement referred
to below, but solely as Subordination Agent and trustee under the Intercreditor
Agreement referred to below (in such capacity, together with any duly appointed
successor, the "SUBORDINATION AGENT").
WHEREAS, Wilmington Trust Company, not in its individual capacity,
but solely as Class A Trustee, Class B Trustee and Class C Trustee, AIG Matched
Funding Corp., as Class A Liquidity Provider, Class B Liquidity Provider and
Class C 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, have entered into the Intercreditor Agreement
dated as of February 20, 1998 (the "ORIGINAL INTERCREDITOR AGREEMENT", and as
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, on the date hereof, a Continental Airlines Pass Through
Trust 2001-2D-O will be created to issue pass through certificates designated as
"Series 2001-2D-O" (the "CLASS D CERTIFICATES") pursuant to a Pass Through Trust
Agreement dated as of September 25, 1997 between Continental and Wilmington
Trust Company, as supplemented by Supplement No. 2001-2D-O thereto dated as of
the date hereof;
WHEREAS, the Class D Trustee will purchase Series D Equipment Notes
issued by Continental under certain Owned Aircraft Indentures using a portion of
the proceeds from the issuance of the Class D Certificates;
WHEREAS, in connection with the issuance of such Series D Equipment
Notes to the Class D Trustee, the parties hereto wish to amend the Original
Intercreditor Agreement in accordance with Section 9.1(a) and 9.1(c) of the
Original Intercreditor Agreement.
WHEREAS, the Ratings Confirmation required under Section 4(a)(vi) of
the Note Purchase Agreement in order to issue such Series D Equipment Notes has
been obtained.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. Except as otherwise defined in this
Amendment No. 1, terms defined in Section 1.1 of the Original Intercreditor
Agreement are used herein as defined therein.
ARTICLE II
AMENDMENTS TO THE ORIGINAL INTERCREDITOR AGREEMENT PURSUANT TO
SECTION 9.1(a)
SECTION 2.1 CERTAIN DEFINITIONS. Pursuant to the clause (x)(ii) of
the first proviso in the first sentence of Section 9.1(a) of the Original
Intercreditor Agreement, Section 1.1 of the Original Intercreditor Agreement is
hereby amended as follows:
(a) the term "Class D Trust" is amended to read as follows: "CLASS D
TRUST" means (A)(i) prior to the Transfer, the Continental Airlines Pass Through
Trust 2001-2D-O created and administered pursuant to the Class D Trust Agreement
and (ii) after the Transfer, the Continental Airlines Pass Through Trust
2001-2D-S created and administered pursuant to the Class D Trust Agreement and
(B) after the Final Distribution has been made with respect to the Class D
Certificates, such other pass through trust that acquires Series D Equipment
Notes, if and when established in accordance with the provisions of Section
4(a)(vi) of the Class D Note Purchase Agreement and subject to the provisions of
Section 9.1(c) of the Intercreditor Agreement.
(b) the term "Class D Trust Agreement" is added in alphabetical
order reading as follows: "CLASS D TRUST AGREEMENT" means (A)(i) prior to the
Transfer, the Basic Agreement, as supplemented by the Supplement No. 2001-2D-O
thereto dated as of the Class D Closing Date, governing the creation and
administration of the Continental Airlines Pass Through Trust 2001-2D-O and the
issuance of the Class D Certificates, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms, and (ii)
after the Transfer, the Basic Agreement, as supplemented by the Supplement No.
2001-2D-S thereto, governing the creation and administration of the Continental
Airlines Pass Through Trust 2001-2D-S and the issuance of the Class D
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 D Certificates, such other
agreement executed by Continental establishing a Class D Trust in accordance
with the provisions of Section 4(a)(vi) of the Class D Note Purchase Agreement
and subject to the provisions of Section 9.1(c) of the Intercreditor Agreement.
Section 2.2. FURTHER AMENDMENT. Section 9.1(c) of the Original
Intercreditor Agreement is amended by adding a new paragraph at the end thereof
reading as follows:
"If, with respect to any Aircraft, Series D Equipment Notes are
issued to any Person other than the Class D Trust, this Agreement shall be
amended by written agreement of Continental and the Subordination Agent to (i)
provide for each holder of a Series D Equipment Note to be bound by the
provisions of Section 2.6(a) hereof so that the Controlling Party, among other
things, shall be entitled to direct the Loan Trustee as provided therein (and
such Series D Equipment Notes shall make effective provision therefor so as to
bind each holder thereof to such provisions of Section 2.6(a) hereof) and (ii)
to revise the definitions of "Controlling Party" and "Equipment Notes", as
appropriate, to reflect the issuance of the Series D Equipment Notes (and the
prior rights, as against the holders of such Series D Equipment Notes, of the
Class A Trustee, the Class B Trustee and the Class C Trustee to be such
"Controlling Party"). No such amendment shall materially adversely affect any
Trustee."
ARTICLE III
AMENDMENTS TO THE ORIGINAL INTERCREDITOR AGREEMENT
PURSUANT TO SECTION 9.1(c)
SECTION 3.1. ADDITIONAL PARTY. Pursuant to Section 9.1(c) of the
Original Intercreditor Agreement, the Original Intercreditor Agreement is hereby
amended by adding the Class D Trustee 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 Continental and the Subordination Agent, the Class D
Trustee shall be a party to the Intercreditor Agreement as fully and with the
same force and effect as if the Class D Trustee had originally executed and
delivered a counterpart thereof (it being understood and agreed that the fifth
and seventh "WHEREAS" clauses in the preliminary statements to the Original
Intercreditor Agreement do not apply to the Class D Certificates).
SECTION 3.2. FURTHER AMENDMENTS. (a) Section 1.1 of the Original
Intercreditor Agreement is amended as follows:
(i) the term "Adjusted Expected Distributions" is amended (i) by
deleting the word "on" in clause (x) and adding in lieu thereof the following:
"calculated at the Stated Interest Rate on the Pool Balance of", (ii) by adding
the words "for such Certificates" after the words "the first Distribution Date"
in clause (y)(A)(x) thereof, in clause (y)(A)(y)(iii) thereof and in two
instances in clause (y)(B)(i) thereof, and (iii) by adding at the end of such
definition an additional sentence as follows: "For purposes of calculating
Adjusted Expected Distributions with respect to the Certificates of the Class D
Trust, the original aggregate face amount of the Certificates of such Trust
shall be deemed to be $22,235,385."
(ii) the term "Aggregate LTV Collateral Amount" is amended by adding
at the end of such definition the following: "minus, in the case of the Class D
Certificates, the sum of the applicable LTV Collateral Amounts for each Leased
Aircraft".
(iii) the term "Certificate" is amended by replacing the word "or"
appearing before the words "a Class C Certificate" with a comma and adding the
words "or a Class D Certificate" after the words "a Class C Certificate".
(iv) the term "Class D Certificateholder" is added in alphabetical
order reading as follows: "CLASS D CERTIFICATEHOLDER" means, at any time, any
holder of one or more Class D Certificates.
(v) the term "Class D Closing Date" is added in alphabetical order
reading as follows: "CLASS D CLOSING DATE" means July 31, 2001.
(vi) the term "Class D Note Purchase Agreement" is added in
alphabetical order reading as follows: "CLASS D NOTE PURCHASE AGREEMENT" means
the Note Purchase Agreement, dated as of the Class D Closing Date, among
Continental, the Class D Trustee, the escrow agent named therein, WTC, as
Subordination Agent and as subordination agent under certain other intercreditor
agreements, and the Paying Agent.
(vii) the "Class D Trustee" is added in alphabetical order reading
as follows: "CLASS D TRUSTEE" means WTC, not in its individual capacity except
as expressly set forth in the Class D Trust Agreement, but solely as trustee
under the Class D Trust Agreement together with any successor trustee appointed
pursuant thereto.
(viii) the term "Class D Underwriting Agreement" is added in
alphabetical order reading as follows: "CLASS D UNDERWRITING AGREEMENT" means
the Underwriting Agreement dated July 13, 2001 among Morgan Stanley & Co.
Incorporated, Credit Suisse First Boston Corporation, the Depositary and
Continental, relating to the purchase of the Class D Certificates by Morgan
Stanley & Co. Incorporated and Credit Suisse First Boston Corporation, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
(ix) the term "Equipment Notes" is amended by replacing the word
"and" appearing before the words "the Series C Equipment Notes" with a comma and
inserting the words "and the Series D Equipment Notes" after the words "the
Series C Equipment Notes".
(x) the term "Expected Distributions" is amended (i) by deleting the
word "on" in clause (x) and adding in lieu thereof the following: "calculated at
the Stated Interest Rate on the Pool Balance of", (ii) by adding the words "for
such Certificates" after the words "the first Distribution Date" in clause
(y)(A) thereof and in clause (y)(B)(ii) thereof, and (iii) by adding at the end
of such definition an additional sentence as follows: "For purposes of
calculating Expected Distributions with respect to the Certificates of the Class
D Trust, the original aggregate face amount of the Certificates of such Trust
shall be deemed to be $22,235,385."
(xi) the term "Final Distributions" is amended by deleting the word
"on" in clause (x) and adding in lieu thereof the following: "calculated at the
Stated Interest Rate on the Pool Balance of".
(xii) the term "Final Legal Distribution Date" is amended by
replacing the word "and" appearing before the numeral "(iii)" with a comma and
adding at the end of such definition the words ", and (iv) with respect to the
Class D Certificates, December 1, 2006."
(xiii) the term "Financing Agreement" is amended by replacing the
word "and" with a comma and adding at the end of such definition the words "and
the Class D Note Purchase Agreement".
(xiv) the term "LTV Collateral Amount" is amended by deleting the
words "secured by" appearing in clause (ii) therein and adding in lieu thereof
the following: "issued in respect of".
(xv) the term "LTV Ratio" is amended by deleting the word "and"
appearing therein and adding at the end of such definition the following: "and
for the Class D Certificates, 65.0%."
(xvi) the term "Operative Agreements" is amended by inserting the
words "the Class D Underwriting Agreement," after the words "the Underwriting
Agreement".
(xvii) the term "Performing Equipment Note" is amended to read as
follows: "PERFORMING EQUIPMENT NOTE" means an Equipment Note with respect to
which no payment default has occurred and is continuing (without giving effect
to any Acceleration); PROVIDED that in the event of a bankruptcy proceeding
under Title 11 of the United States Code (the "BANKRUPTCY CODE") in which
Continental is a debtor any payment default existing during the 60-day period
under Section 1110(a)(2)(A) of the Bankruptcy Code (or such longer period as may
apply under Section 1110(b) of the Bankruptcy Code or as may apply for the cure
of such payment default under Section 1110(a)(2)(B) of the Bankruptcy Code)
shall not be taken into consideration until the expiration of the applicable
period.
(xviii) the term "Pool Balance" is amended to read as follows: "POOL
BALANCE" means, with respect to each Trust or the Certificates issued by any
Trust, as of any date, (i) the original aggregate face amount of the
Certificates of such Trust (or, in the case of the Class D Trust or the Class D
Certificates, $22,235,385) LESS (ii) the aggregate amount of all payments made
in respect of the Certificates of such Trust under this Agreement or in respect
of Deposits relating to such Trust other than payments made under this Agreement
in respect of interest or premium thereon or reimbursement of any costs and
expenses in connection therewith. The Pool Balance for each Trust or for the
Certificates issued by any Trust as of any Distribution Date shall be computed
after giving effect to any special distribution with respect to unused Deposits,
payment of principal of the Equipment Notes or payment with respect to other
Trust Property held in such Trust and the distribution thereof pursuant to this
Agreement (except in the case of such unused Deposits) to be made on that date.
(xix) the term "PTC Event of Default" is amended by adding after the
words "interest due on such Certificates" appearing in clause (ii) thereof the
following: "(calculated at the Stated Interest Rate on the Pool Balance
thereof)".
(xx) the term "Regular Distribution Dates" is amended to read as
follows: "REGULAR DISTRIBUTION DATES" means (i) with respect to the Liquidity
Facilities and the Class A Certificates, Class B Certificates and Class C
Certificates, each March 15 and September 15, commencing on March 15, 1998, and
(ii) with respect to the Class D Certificates, each June 1 and December 1,
commencing on December 1, 2001; PROVIDED, HOWEVER, that, if any such day shall
not be a Business Day, the related distribution shall be made on the next
succeeding Business Day without additional interest.
(xxi) the term "Series D Equipment Notes" is added in alphabetical
order reading as follows: "SERIES D EQUIPMENT NOTES" means (A) the 7.568% Series
D Equipment Notes issued pursuant to any Owned Aircraft Indenture by Continental
and authenticated by the Loan Trustee thereunder, and any such Equipment Notes
issued in exchange therefore or replacement thereof pursuant to the terms of
such Owned Aircraft Indenture, and (B) after the Final Distribution has been
made with respect to the Class D Certificates, equipment notes, if any, issued
pursuant to any Indenture by the related Owner Trustee or Continental, as the
case may be, in accordance with Section 4(a)(vi) of the Class D Note Purchase
Agreement and subject to the provisions of Section 9.1(c) of the Intercreditor
Agreement and authenticated by the Loan Trustee under such Indenture, and
designated as "Series D" thereunder, and any such equipment notes issued in
exchange therefor or replacement thereof pursuant to the terms of such
Indenture.
(xxii) the term "Stated Interest Rate" is amended by deleting the
word "and" appearing before the numeral "(iii)" and adding at the end of such
definition the following: ", and (iv) with respect to the Class D Certificates,
7.568% per annum".
(xxiii) the term "Successor Trusts" is amended by replacing the word
"and" appearing therein with a comma and adding at the end of such definition
the following: "and Continental Airlines Pass Through Trust 2001-2D-S".
(xxiv) the term "Trust" is amended by replacing the word "or"
appearing before the words "the Class C Trust" with a comma and adding at the
end of such definition the words "or the Class D Trust".
(xxv) the term "Trust Agreement" is amended by replacing the word
"or" appearing before the words "the Class C Trust Agreement" with a comma and
adding at the end of such definition the words "or the Class D Trust Agreement".
(xxvi) the term "Trustee" is amended by replacing the word "or"
appearing before the words "the Class C Trustee" with a comma and adding at the
end of such definition the words "or the Class D Trustee".
(b) Section 2.4(b)(i) of the Original Intercreditor Agreement is
amended by (i) replacing the words "Equipment Notes" appearing twice in
subclause (B)(y) of each of clauses FIRST and SECOND thereof with the words "the
Series A Equipment Notes, the Series B Equipment Notes and the Series C
Equipment Notes", (ii) deleting the word "and" appearing at the end of clause
SEVENTH thereof, (iii) amending the word "EIGHTH" to read "NINTH", (iv)
inserting after clause SEVENTH thereof a new clause EIGHTH reading as follows:
"EIGHTH, such amount as shall be required to pay in full Expected Distributions
to the holders of the Class D Certificates on such Special Distribution Date
shall be distributed to the Class D Trustee; and" and (v) deleting the word "on"
appearing in the last sentence before the words "such Certificates together
with" and adding in lieu thereof the following: "calculated at the Stated
Interest Rate on the Pool Balance of".
(c) Section 2.6(b) of the Original Intercreditor Agreement is
amended by deleting the word "and" appearing before the letter "(z)" in the
first sentence thereof and inserting after the words "the Class C Trustee" at
the end of the first sentence thereof the following: "; and (aa) upon payment of
Final Distributions to the holders of Class C Certificates, the Class D
Trustee".
(d) Section 3.1(a) of the Original Intercreditor Agreement is
amended by changing the word "EIGHTH" appearing in clause (v) to "NINTH",
changing the numeral "(iv)" to the numeral "(v)" and the numeral "(v)" to the
numeral "(vi)" and inserting after clause (iii) thereof a new clause (iv)
reading as follows: "(iv) With respect to the Class D Certificates, the Class D
Trustee shall separately set forth the amounts to be paid in accordance with
clause "EIGHTH" of Section 3.2 or 2.4(b), as the case may be, hereof;".
(e) Section 3.1(b) of the Original Intercreditor Agreement is
amended by changing the numeral "(iv)" to the numeral "(v)" and the numeral
"(v)" to the numeral "(vi)" and inserting after clause (iii) thereof a new
clause (iv) reading as follows: "(iv) With respect to the Class D Certificates,
the Class D Trustee shall separately set forth the amounts to be paid in
accordance with clauses "FIRST" (to reimburse payments made by the Class D
Certificateholders pursuant to subclause (iii) of clause "FIRST" of Section 3.3
hereof) and "TENTH" of Section 3.3 hereof;"
(f) Section 3.1(f) of the Original Intercreditor Agreement is
amended to change the word "NINTH" appearing twice therein to the word "TENTH".
(g) Section 3.2 of the Original Intercreditor Agreement is amended
by (i) inserting after the words "Section 3.1(a) hereof" but before the colon
appearing in the first sentence thereof the following: "(PROVIDED, that (x) in
the case of each Regular Distribution Date for the Class D Certificates that is
not a Special Distribution Date, amounts shall be payable under clauses FIFTH
through SEVENTH of this Section 3.2 if and only if on the immediately preceding
Distribution Date, any amounts payable under such clauses FIFTH through SEVENTH
were not distributed in full due to the Subordination Agent not having
sufficient funds (after the application of Section 3.6(b)) on such Distribution
Date, and if any such amounts are so payable, such amount as the Subordination
Agent shall have available for distribution after giving effect to clauses FIRST
through FOURTH of this Section 3.2 up to an amount sufficient to pay such
amounts (determined as of such preceding Distribution Date) shall be deposited
in the Special Payments Account and distributed as a Special Payment, and (y) in
the case of each Regular Distribution Date (other than a Regular Distribution
Date for the Class D Certificates) that is not a Special Distribution Date,
amounts shall be payable under clause EIGHTH of this Section 3.2 if and only if
on the immediately preceding Distribution Date, any amounts payable under such
clause EIGHTH were not distributed in full due to the Subordination Agent not
having sufficient funds on such Distribution Date, and if any such amounts are
so payable, such amount as the Subordination Agent shall have available for
distribution after giving effect to clauses FIRST through SEVENTH of this
Section 3.2 up to an amount sufficient to pay such amounts (determined as of
such preceding Distribution Date) shall be deposited in the Special Payments
Account and distributed as a Special Payment)", (ii) amending the word "EIGHTH"
to read "NINTH", (iii) amending the word "NINTH" to read "TENTH" and (iv)
inserting after clause SEVENTH thereof a new clause EIGHTH reading as follows:
"EIGHTH, such amount as shall be required to pay in full Expected Distributions
to the holders of the Class D Certificates on such Distribution Date shall be
distributed to the Class D Trustee;".
(h) Section 3.3 of the Original Intercreditor Agreement is amended
by (i) deleting the word "and" appearing at the end of clause EIGHTH thereof,
(ii) replacing the period at the end of clause NINTH with the following: "; and"
and (iii) inserting at the end of such Section 3.3 a new clause TENTH reading as
follows: "TENTH, such amount remaining as shall be required to pay in full
Adjusted Expected Distributions on the Class D Certificates shall be distributed
to the Class D Trustee".
(i) Section 3.4(c) of the Original Intercreditor Agreement is
amended by changing the word "EIGHTH" appearing in the proviso therein to the
word "NINTH", changing the word "or" appearing in such proviso to a comma and
inserting the words "or "EIGHTH"" after the word ""SEVENTH"" appearing in such
proviso.
(j) Section 3.4 of the Original Intercreditor Agreement is amended
by adding a new subclause (d) reading as follows:
"(d) Notwithstanding the priority of payments specified in Sections
2.4(b)(i), 3.2 and 3.3, all payments received by the Subordination Agent under
any Owned Aircraft Indenture securing Equipment Notes of any Prior Series and to
be applied by the terms of such Owned Aircraft Indenture to the Series D
Equipment Notes issued in respect of any other Prior Series shall be promptly
distributed to the Class D Trustee. The terms "Equipment Notes", "Prior Series"
and "Series D Equipment Notes" as used in this Section 3.4(d) shall have the
respective meanings specified therefor in the Class D Note Purchase Agreement."
(k) Section 3.6(a) of the Original Intercreditor Agreement is
amended by adding the words "(other than a Regular Distribution Date with
respect to the Class D Certificates that is not a Special Distribution Date)"
after the words "any Distribution Date" appearing therein.
(l) Section 3.6(f) of the Original Intercreditor Agreement is
amended by adding the words "(other than a Regular Distribution Date with
respect to the Class D Certificates that is not a Special Distribution Date)"
after the words "each Distribution Date" appearing in each of clauses (i), (ii)
and (iii) thereof.
(m) Section 6.1 of the Original Intercreditor Agreement is amended
by (i) replacing the word "and" appearing before the words "the Class C Trustee"
in the first sentence thereof with a comma and (ii) inserting the words "and the
Class D Trustee" after the words "the Class C Trustee" in the first sentence
thereof.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 MISCELLANEOUS. The amendments to the Original
Intercreditor Agreement contained in Articles II and III hereof shall become
effective as of the date hereof, and from and after the date hereof, each
reference in the Intercreditor Agreement to "this Agreement", and each reference
in the Intercreditor Agreement or in any other Operative Agreement to the
"Intercreditor Agreement" or any like expression referring to the Intercreditor
Agreement, shall be deemed to refer to the Original Intercreditor Agreement as
amended by this Amendment No. 1. The Original Intercreditor Agreement, as
amended hereby, shall remain unchanged and in full force and effect. Each
Liquidity Provider, by its execution and delivery of this Amendment No. 1,
confirms that all of its obligations under the Intercreditor Agreement and the
Liquidity Facilities provided by such Liquidity Provider remain unchanged and in
full force and effect. Each party hereto agrees to execute and deliver all such
further agreements or documents, if any, as shall be necessary to give effect to
the provisions of this Amendment No. 1. This Amendment No. 1 may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument, and any of the parties hereto may execute this Amendment
No. 1 by signing any such counterpart. This Amendment No. 1 shall be governed
by, and construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written, and acknowledge that
this Amendment No. 1 has been made and delivered in the City of New York, and
this Amendment No. 1 has become effective only upon such execution and delivery.
CONTINENTAL AIRLINES, INC.
By
----------------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Class A
Trustee, Class B Trustee, Class C Trustee and Class
D Trustee
By
----------------------------------------------------
Name:
Title:
AIG MATCHED FUNDING CORP.,
as Class A Liquidity Provider, Class B Liquidity
Provider and Class C Liquidity Provider
By
----------------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity except as expressly set
forth herein but solely as Subordination Agent and
Trustee
By
----------------------------------------------------
Name:
Title:
AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (1998-3)
AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (this "AMENDMENT NO. 1")
dated as of July 31, 2001, among CONTINENTAL AIRLINES, INC., a Delaware
corporation ("CONTINENTAL"); WILMINGTON TRUST COMPANY, a Delaware corporation,
not in its individual capacity but solely as Trustee under the Continental
Airlines Pass Through Trust 1998-3A-1-S (the "CLASS A-1 TRUSTEE"), as Trustee
under the Continental Airlines Pass Through Trust 1998-3A-2-S (the "CLASS A-2
TRUSTEE"), as Trustee under the Continental Airlines Pass Through Trust
1998-3B-S (the "CLASS B TRUSTEE"), as Trustee under the Continental Airlines
Pass Through Trust 1998-3C-1-S (the "CLASS C-1 TRUSTEE"), as Trustee under the
Continental Airlines Pass Through Trust 1998-3C-2-S (the "CLASS C-2 TRUSTEE")
and as Trustee under the Continental Airlines Pass Through Trust 2001-2D-O (the
"CLASS D TRUSTEE"); WESTDEUTSCHE LANDESBANK GIROZENTRALE, a bank organized under
the laws of the State of North Rhine-Westphalia, Germany, acting through its New
York branch, as Class A-1 Liquidity Provider and Class A-2 Liquidity Provider;
MORGAN STANLEY CAPITAL SERVICES, INC., a Delaware corporation, as Class B
Liquidity Provider, Class C-1 Liquidity Provider and Class C-2 Liquidity
Provider; and WILMINGTON TRUST COMPANY, not in its individual capacity except as
expressly set forth in the Intercreditor Agreement referred to below, but solely
as Subordination Agent and trustee under the Intercreditor Agreement referred to
below (in such capacity, together with any duly appointed successor, the
"SUBORDINATION AGENT").
WHEREAS, Wilmington Trust Company, not in its individual capacity,
but solely as Class A-1 Trustee, Class A-2 Trustee, Class B Trustee, Class C-1
Trustee and Class C-2 Trustee, Westdeutsche Landesbank Girozentrale, as Class
A-1 Liquidity Provider and Class A-2 Liquidity Provider, Morgan Stanley Capital
Services, Inc., as Class B Liquidity Provider, Class C-1 Liquidity Provider and
Class C-2 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, have entered into the Intercreditor
Agreement dated as of November 3, 1998 (the "ORIGINAL INTERCREDITOR AGREEMENT",
and as 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, on the date hereof, a Continental Airlines Pass Through
Trust 2001-2D-O will be created to issue pass through certificates designated as
"Series 2001-2D-O" (the "CLASS D CERTIFICATES") pursuant to a Pass Through Trust
Agreement dated as of September 25, 1997 between Continental and Wilmington
Trust Company, as supplemented by Supplement No. 2001-2D-O thereto dated as of
the date hereof;
WHEREAS, the Class D Trustee will purchase Series D Equipment Notes
issued by Continental under certain Owned Aircraft Indentures using a portion of
the proceeds from the issuance of the Class D Certificates;
WHEREAS, in connection with the issuance of such Series D Equipment
Notes to the Class D Trustee, the parties hereto wish to amend the Original
Intercreditor Agreement in accordance with Section 9.1(a) and 9.1(c) of the
Original Intercreditor Agreement.
WHEREAS, the Ratings Confirmation required under Section 4(a)(vi) of
the Note Purchase Agreement in order to issue such Series D Equipment Notes has
been obtained.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. Except as otherwise defined in this
Amendment No. 1, terms defined in Section 1.1 of the Original Intercreditor
Agreement are used herein as defined therein.
ARTICLE II
AMENDMENTS TO THE ORIGINAL INTERCREDITOR AGREEMENT PURSUANT
TO SECTION 9.1(a)
SECTION 2.1 CERTAIN DEFINITIONS. Pursuant to the clause (x)(ii) of
the first proviso in the first sentence of Section 9.1(a) of the Original
Intercreditor Agreement, Section 1.1 of the Original Intercreditor Agreement is
hereby amended as follows:
(a) the term "Class D Trust" is amended to read as follows: "CLASS D
TRUST" means (A)(i) prior to the Transfer, the Continental Airlines Pass Through
Trust 2001-2D-O created and administered pursuant to the Class D Trust Agreement
and (ii) after the Transfer, the Continental Airlines Pass Through Trust
2001-2D-S created and administered pursuant to the Class D Trust Agreement and
(B) after the Final Distribution has been made with respect to the Class D
Certificates, such other pass through trust that acquires Series D Equipment
Notes, if and when established in accordance with the provisions of Section
4(a)(vi) of the Class D Note Purchase Agreement and subject to the provisions of
Section 9.1(c) of the Intercreditor Agreement.
(b) the term "Class D Trust Agreement" is added in alphabetical
order reading as follows: "CLASS D TRUST AGREEMENT" means (A)(i) prior to the
Transfer, the Basic Agreement, as supplemented by the Supplement No. 2001-2D-O
thereto dated as of the Class D Closing Date, governing the creation and
administration of the Continental Airlines Pass Through Trust 2001-2D-O and the
issuance of the Class D Certificates, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms, and (ii)
after the Transfer, the Basic Agreement, as supplemented by the Supplement No.
2001-2D-S thereto, governing the creation and administration of the Continental
Airlines Pass Through Trust 2001-2D-S and the issuance of the Class D
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 D Certificates, such other
agreement executed by Continental establishing a Class D Trust in accordance
with the provisions of Section 4(a)(vi) of the Class D Note Purchase Agreement
and subject to the provisions of Section 9.1(c) of the Intercreditor Agreement.
SECTION 2.2. FURTHER AMENDMENT. Section 9.1(c) of the Original
Intercreditor Agreement is amended by adding after the words "Controlling Party"
appearing in clause (i) of the fourth sentence thereof the following: ", among
other things,".
ARTICLE III
AMENDMENTS TO THE ORIGINAL INTERCREDITOR AGREEMENT
PURSUANT TO SECTION 9.1(c)
SECTION 3.1. ADDITIONAL PARTY. Pursuant to Section 9.1(c) of the
Original Intercreditor Agreement, the Original Intercreditor Agreement is hereby
amended by adding the Class D Trustee 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 Continental and the Subordination Agent, the Class D
Trustee shall be a party to the Intercreditor Agreement as fully and with the
same force and effect as if the Class D Trustee had originally executed and
delivered a counterpart thereof (it being understood and agreed that the fifth
and eighth "WHEREAS" clauses in the preliminary statements to the Original
Intercreditor Agreement do not apply to the Class D Certificates).
SECTION 3.2. FURTHER AMENDMENTS. (a) Section 1.1 of the Original
Intercreditor Agreement is amended as follows:
(i) the term "Adjusted Expected Distributions" is amended (i) by
deleting the word "on" in clause (x) and adding in lieu thereof the following:
"calculated at the Stated Interest Rate on the Pool Balance of", (ii) by adding
the words "for such Certificates" after the words "the first Distribution Date"
in clause (y)(A)(x) thereof, in clause (y)(A)(y)(iii) thereof and in two
instances in clause (y)(B)(i) thereof, and (iii) adding at the end of such
definition an additional sentence as follows: "For purposes of calculating
Adjusted Expected Distributions with respect to the Certificates of the Class D
Trust, the original aggregate face amount of the Certificates of such Trust
shall be deemed to be $18,210,710."
(ii) the term "Aggregate LTV Collateral Amount" is amended (i) by
inserting at the end of clause (A)(ii) before the words "multiplied by" the
following: "minus (iii) in the case of the Class D Certificates, the sum of the
applicable LTV Collateral Amounts for each Leased Aircraft," and (ii) by
deleting the word "and" appearing before the numeral "(iii)" and inserting at
the end of such definition the following: ", and (iv) in the case of Class D
Certificates, 1.0".
(iii) the term "Certificate" is amended by replacing the word "or"
appearing before the words "a Class C-2 Certificate" with a comma and adding the
words "or a Class D Certificate" after the words "a Class C-2 Certificate".
(iv) the term "Class D Certificateholder" is added in alphabetical
order reading as follows: "CLASS D CERTIFICATEHOLDER" means, at any time, any
holder of one or more Class D Certificates.
(v) the term "Class D Closing Date" is added in alphabetical order
reading as follows: "CLASS D CLOSING DATE" means July 31, 2001.
(vi) the term "Class D Note Purchase Agreement" is added in
alphabetical order reading as follows: "CLASS D NOTE PURCHASE AGREEMENT" means
the Note Purchase Agreement, dated as of the Class D Closing Date, among
Continental, the Class D Trustee, the escrow agent named therein, WTC, as
Subordination Agent and as subordination agent under certain other intercreditor
agreements, and the Paying Agent.
(vii) the "Class D Trustee" is added in alphabetical order reading
as follows: "CLASS D TRUSTEE" means WTC, not in its individual capacity except
as expressly set forth in the Class D Trust Agreement, but solely as trustee
under the Class D Trust Agreement together with any successor trustee appointed
pursuant thereto.
(viii) the term "Class D Underwriting Agreement" is added in
alphabetical order reading as follows: "CLASS D UNDERWRITING AGREEMENT" means
the Underwriting Agreement dated July 13, 2001 among Morgan Stanley & Co.
Incorporated, Credit Suisse First Boston Corporation, the Depositary and
Continental, relating to the purchase of the Class D Certificates by Morgan
Stanley & Co. Incorporated and Credit Suisse First Boston Corporation, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
(ix) the term "Equipment Notes" is amended by replacing the word
"and" appearing before the words "the Series C-2 Equipment Notes" with a comma
and inserting the words "and the Series D Equipment Notes" after the words "the
Series C-2 Equipment Notes".
(x) the term "Expected Distributions" is amended (i) by deleting the
word "on" in clause (x) and adding in lieu thereof the following: "calculated at
the Stated Interest Rate on the Pool Balance of", (ii) by adding the words "for
such Certificates" after the words "the first Distribution Date" in clause
(y)(A) thereof and in clause (y)(B)(ii) thereof, and (iii) by adding at the end
of such definition an additional sentence as follows: "For purposes of
calculating Expected Distributions with respect to the Certificates of the Class
D Trust, the original aggregate face amount of the Certificates of such Trust
shall be deemed to be $18,210,710."
(xi) the term "Final Distributions" is amended by deleting the word
"on" in clause (x) and adding in lieu thereof the following: "calculated at the
Stated Interest Rate on the Pool Balance of".
(xii) the term "Final Legal Distribution Date" is amended by
deleting the word "and" appearing before the numeral "(v)" and adding at the end
of such definition the words ", and (vi) with respect to the Class D
Certificates, December 1, 2006."
(xiii) the term "Financing Agreement" is amended by replacing the
word "and" with a comma and adding at the end of such definition the words "and
the Class D Note Purchase Agreement".
(xiv) the term "LTV Collateral Amount" is amended by deleting the
words "secured by" appearing in clause (ii) therein and adding in lieu thereof
the following: "issued in respect of".
(xv) the term "LTV Ratio" is amended by replacing the word "and"
appearing therein with a comma and adding at the end of such definition the
following: "and for the Class D Certificates, 68.0%."
(xvi) the term "Operative Agreements" is amended by inserting the
words "the Class D Underwriting Agreement," after the words "the Underwriting
Agreement".
(xvii) the term "Performing Equipment Note" is amended to read as
follows: "PERFORMING EQUIPMENT NOTE" means an Equipment Note with respect to
which no payment default has occurred and is continuing (without giving effect
to any Acceleration); PROVIDED that in the event of a bankruptcy proceeding
under Title 11 of the United States Code (the "BANKRUPTCY CODE") in which
Continental is a debtor any payment default existing during the 60-day period
under Section 1110(a)(2)(A) of the Bankruptcy Code (or such longer period as may
apply under Section 1110(b) of the Bankruptcy Code or as may apply for the cure
of such payment default under Section 1110(a)(2)(B) of the Bankruptcy Code)
shall not be taken into consideration until the expiration of the applicable
period.
(xviii) the term "Pool Balance" is amended to read as follows: "POOL
BALANCE" means, with respect to each Trust or the Certificates issued by any
Trust, as of any date, (i) the original aggregate face amount of the
Certificates of such Trust (or, in the case of the Class D Trust or the Class D
Certificates, $18,210,710) LESS (ii) the aggregate amount of all payments made
in respect of the Certificates of such Trust under this Agreement or in respect
of Deposits relating to such Trust other than payments made under this Agreement
in respect of interest or premium thereon or reimbursement of any costs and
expenses in connection therewith. The Pool Balance for each Trust or for the
Certificates issued by any Trust as of any Distribution Date shall be computed
after giving effect to any special distribution with respect to unused Deposits,
payment of principal of the Equipment Notes or payment with respect to other
Trust Property held in such Trust and the distribution thereof pursuant to this
Agreement (except in the case of such unused Deposits) to be made on that date.
(xix) the term "PTC Event of Default" is amended by adding after the
words "interest due on such Certificates" appearing in clause (ii) thereof the
following: "(calculated at the Stated Interest Rate on the Pool Balance
thereof)".
(xx) the term "Regular Distribution Dates" is amended to read as
follows: "REGULAR DISTRIBUTION DATES" means (i) with respect to the Liquidity
Facilities and the Class A-1 Certificates, Class A-2 Certificates, Class B
Certificates, Class C-1 Certificates and Class C-2 Certificates, each May 1 and
November 1, commencing on May 1, 1999, and (ii) with respect to the Class D
Certificates, each June 1 and December 1, commencing on December 1, 2001;
PROVIDED, HOWEVER, that, if any such day shall not be a Business Day, the
related distribution shall be made on the next succeeding Business Day without
additional interest.
(xxi) the term "Series D Equipment Notes" is added in alphabetical
order reading as follows: "SERIES D EQUIPMENT NOTES" means (A) the 7.568% Series
D Equipment Notes issued pursuant to any Owned Aircraft Indenture by Continental
and authenticated by the Loan Trustee thereunder, and any such Equipment Notes
issued in exchange therefore or replacement thereof pursuant to the terms of
such Owned Aircraft Indenture, and (B) after the Final Distribution has been
made with respect to the Class D Certificates, equipment notes, if any, issued
pursuant to any Indenture by the related Owner Trustee or Continental, as the
case may be, in accordance with Section 4(a)(vi) of the Class D Note Purchase
Agreement and subject to the provisions of Section 9.1(c) of the Intercreditor
Agreement and authenticated by the Loan Trustee under such Indenture, and
designated as "Series D" thereunder, and any such equipment notes issued in
exchange therefor or replacement thereof pursuant to the terms of such
Indenture.
(xxii) the term "Stated Interest Rate" is amended by deleting the
word "and" appearing before the numeral "(v)" and adding at the end of such
definition the following: ", and (vi) with respect to the Class D Certificates,
7.568% per annum".
(xxiii) the term "Successor Trusts" is amended by replacing the word
"and" appearing therein with a comma and adding at the end of such definition
the following: "and Continental Airlines Pass Through Trust 2001-2D-S".
(xxiv) the term "Trust" is amended by replacing the word "or"
appearing before the words "the Class C-2 Trust" with a comma and adding at the
end of such definition the words "or the Class D Trust".
(xxv) the term "Trust Agreement" is amended by replacing the word
"or" appearing before the words "the Class C-2 Trust Agreement" with a comma and
adding at the end of such definition the words "or the Class D Trust Agreement".
(xxvi) the term "Trustee" is amended by replacing the word "or"
appearing before the words "the Class C-2 Trustee" with a comma and adding at
the end of such definition the words "or the Class D Trustee".
(b) Section 2.4(b)(i) of the Original Intercreditor Agreement is
amended by (i) replacing the words "Equipment Notes" appearing twice in
subclause (B)(y) of each of clauses FIRST and SECOND thereof with the words "the
Series A-1 Equipment Notes, the Series A-2 Equipment Notes, the Series B
Equipment Notes, the Series C-1 Equipment Notes and the Series C-2 Equipment
Notes", (ii) deleting the word "and" appearing at the end of clause SEVENTH
thereof, (iii) amending the word "EIGHTH" to read "NINTH", (iv) inserting after
clause SEVENTH thereof a new clause EIGHTH reading as follows: "EIGHTH, such
amount as shall be required to pay in full Expected Distributions to the holders
of the Class D Certificates on such Special Distribution Date shall be
distributed to the Class D Trustee; and" and (v) deleting the word "on"
appearing in the last sentence before the words "such Certificates together
with" and adding in lieu thereof the following: "calculated at the Stated
Interest Rate on the Pool Balance of".
(c) Section 2.6(b) of the Original Intercreditor Agreement is
amended by deleting the word "and" appearing before the letter "(z)" in the
first sentence thereof and inserting after the words "Class C-2 Trustee" at the
end of the first sentence thereof the following: "; and (aa) upon payment of
Final Distributions to the holders of Class C-1 Certificates and Class C-2
Certificates, the Class D Trustee".
(d) Section 3.1(a) of the Original Intercreditor Agreement is
amended by changing the word "EIGHTH" appearing in clause (v) to "NINTH",
changing the numeral "(iv)" to the numeral "(v)" and the numeral "(v)" to the
numeral "(vi)" and inserting after clause (iii) thereof a new clause (iv)
reading as follows: "(iv) With respect to the Class D Certificates, the Class D
Trustee shall separately set forth the amounts to be paid in accordance with
clause "EIGHTH" of Section 3.2 or 2.4(b), as the case may be, hereof;".
(e) Section 3.1(b) of the Original Intercreditor Agreement is
amended by changing the numeral "(iv)" to the numeral "(v)" and the numeral
"(v)" to the numeral "(vi)" and inserting after clause (iii) thereof a new
clause (iv) reading as follows: "(iv) With respect to the Class D Certificates,
the Class D Trustee shall separately set forth the amounts to be paid in
accordance with clauses "FIRST" (to reimburse payments made by the Class D
Certificateholders pursuant to subclause (iii) of clause "FIRST" of Section 3.3
hereof) and "TENTH" of Section 3.3 hereof;"
(f) Section 3.1(f) of the Original Intercreditor Agreement is
amended to change the word "NINTH" appearing twice therein to the word "TENTH".
(g) Section 3.2 of the Original Intercreditor Agreement is amended
by (i) inserting after the words "Section 3.1(a) hereof" but before the colon
appearing in the first sentence thereof the following: "(PROVIDED, that (x) in
the case of each Regular Distribution Date for the Class D Certificates that is
not a Special Distribution Date, amounts shall be payable under clauses FIFTH
through SEVENTH of this Section 3.2 if and only if on the immediately preceding
Distribution Date, any amounts payable under such clauses FIFTH through SEVENTH
were not distributed in full due to the Subordination Agent not having
sufficient funds (after the application of Section 3.6(b)) on such Distribution
Date, and if any such amounts are so payable, such amount as the Subordination
Agent shall have available for distribution after giving effect to clauses FIRST
through FOURTH of this Section 3.2 up to an amount sufficient to pay such
amounts (determined as of such preceding Distribution Date) shall be deposited
in the Special Payments Account and distributed as a Special Payment, and (y) in
the case of each Regular Distribution Date (other than a Regular Distribution
Date for the Class D Certificates) that is not a Special Distribution Date,
amounts shall be payable under clause EIGHTH of this Section 3.2 if and only if
on the immediately preceding Distribution Date, any amounts payable under such
clause EIGHTH were not distributed in full due to the Subordination Agent not
having sufficient funds on such Distribution Date, and if any such amounts are
so payable, such amount as the Subordination Agent shall have available for
distribution after giving effect to clauses FIRST through SEVENTH of this
Section 3.2 up to an amount sufficient to pay such amounts (determined as of
such preceding Distribution Date) shall be deposited in the Special Payments
Account and distributed as a Special Payment)", (ii) amending the word "EIGHTH"
to read "NINTH", (iii) amending the word "NINTH" to read "TENTH" and (iv)
inserting after clause SEVENTH thereof a new clause EIGHTH reading as follows:
"EIGHTH, such amount as shall be required to pay in full Expected Distributions
to the holders of the Class D Certificates on such Distribution Date shall be
distributed to the Class D Trustee;".
(h) Section 3.3 of the Original Intercreditor Agreement is amended
by (i) deleting the word "and" appearing at the end of clause EIGHTH thereof,
(ii) replacing the period at the end of clause NINTH with the following: "; and"
and (iii) inserting at the end of such Section 3.3 a new clause TENTH reading as
follows: "TENTH, such amount remaining as shall be required to pay in full
Adjusted Expected Distributions on the Class D Certificates shall be distributed
to the Class D Trustee".
(i) Section 3.4(c) of the Original Intercreditor Agreement is
amended by changing the word "EIGHTH" appearing in the proviso therein to the
word "NINTH", changing the word "or" appearing in such proviso to a comma and
inserting the words "or "EIGHTH"" after the word ""SEVENTH"" appearing in such
proviso.
(j) Section 3.4 of the Original Intercreditor Agreement is amended
by adding a new subclause (d) reading as follows:
"(d) Notwithstanding the priority of payments specified in Sections
2.4(b)(i), 3.2 and 3.3, all payments received by the Subordination Agent under
any Owned Aircraft Indenture securing Equipment Notes of any Prior Series and to
be applied by the terms of such Owned Aircraft Indenture to the Series D
Equipment Notes issued in respect of any other Prior Series shall be promptly
distributed to the Class D Trustee. The terms "Equipment Notes", "Prior Series"
and "Series D Equipment Notes" as used in this Section 3.4(d) shall have the
respective meanings specified therefor in the Class D Note Purchase Agreement."
(k) Section 3.6(a) of the Original Intercreditor Agreement is
amended by adding the words "(other than a Regular Distribution Date with
respect to the Class D Certificates that is not a Special Distribution Date)"
after the words "any Distribution Date" appearing therein.
(l) Section 3.6(f) of the Original Intercreditor Agreement is
amended by adding the words "(other than a Regular Distribution Date with
respect to the Class D Certificates that is not a Special Distribution Date)"
after the words "each Distribution Date" appearing in each of clauses (i), (ii),
(iii), (iv) and (v) thereof.
(m) Section 6.1 of the Original Intercreditor Agreement is amended
by (i) replacing the word "and" appearing before the words "the Class C Trustee"
in the first sentence thereof with a comma and (ii) inserting the words "and the
Class D Trustee" after the words "the Class C Trustee" in the first sentence
thereof.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 MISCELLANEOUS. The amendments to the Original
Intercreditor Agreement contained in Articles II and III hereof shall become
effective as of the date hereof, and from and after the date hereof, each
reference in the Intercreditor Agreement to "this Agreement", and each reference
in the Intercreditor Agreement or in any other Operative Agreement to the
"Intercreditor Agreement" or any like expression referring to the Intercreditor
Agreement, shall be deemed to refer to the Original Intercreditor Agreement as
amended by this Amendment No. 1. The Original Intercreditor Agreement, as
amended hereby, shall remain unchanged and in full force and effect. Each
Liquidity Provider, by its execution and delivery of this Amendment No. 1,
confirms that all of its obligations under the Intercreditor Agreement and the
Liquidity Facilities provided by such Liquidity Provider remain unchanged and in
full force and effect. Each party hereto agrees to execute and deliver all such
further agreements or documents, if any, as shall be necessary to give effect to
the provisions of this Amendment No. 1. This Amendment No. 1 may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument, and any of the parties hereto may execute this Amendment
No. 1 by signing any such counterpart. This Amendment No. 1 shall be governed
by, and construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written, and acknowledge that
this Amendment No. 1 has been made and delivered in the City of New York, and
this Amendment No. 1 has become effective only upon such execution and delivery.
CONTINENTAL AIRLINES, INC.
By
--------------------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Class A-1
Trustee, Class A-2 Trustee, Class B Trustee, Class
C-1 Trustee, Class C-2 Trustee and Class D Trustee
By
--------------------------------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
as Class A-1 Liquidity Provider, and Class A-2
Liquidity Provider
By
--------------------------------------------------------
Name:
Title:
By
--------------------------------------------------------
Name:
Title:
MORGAN STANLEY CAPITAL SERVICES,
INC.,
as Class B Liquidity Provider, Class C-1 Liquidity
Provider, and Class C-2 Liquidity Provider
By
--------------------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity except as expressly set
forth herein but solely as Subordination Agent and Trustee
By
--------------------------------------------------------
Name:
Title:
AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (1999-1)
AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (this "AMENDMENT NO. 1")
dated as of July 31, 2001, among CONTINENTAL AIRLINES, INC., a Delaware
corporation ("CONTINENTAL"); WILMINGTON TRUST COMPANY, a Delaware corporation,
not in its individual capacity but solely as Trustee under the Continental
Airlines Pass Through Trust 1999-1A-S (the "CLASS A TRUSTEE"), as Trustee under
the Continental Airlines Pass Through Trust 1999-1B-S (the "CLASS B TRUSTEE"),
as Trustee under the Continental Airlines Pass Through Trust 1999-1C-S (the
"CLASS C TRUSTEE") and as Trustee under the Continental Airlines Pass Through
Trust 2001-2D-O (the "CLASS D TRUSTEE"); BAYERISCHE LANDESBANK GIROZENTRALE, a
public law banking institution organized under the laws of the Free State of
Bavaria, Germany, as Class A Liquidity Provider, Class B Liquidity Provider and
Class C Liquidity Provider; and WILMINGTON TRUST COMPANY, not in its individual
capacity except as expressly set forth in the Intercreditor Agreement referred
to below, but solely as Subordination Agent and trustee under the Intercreditor
Agreement referred to below (in such capacity, together with any duly appointed
successor, the "SUBORDINATION AGENT").
WHEREAS, Wilmington Trust Company, not in its individual capacity,
but solely as Class A Trustee, Class B Trustee and Class C Trustee, Bayerische
Landesbank Girozentrale, as Class A Liquidity Provider, Class B Liquidity
Provider and Class C 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, have entered into the Intercreditor
Agreement dated as of February 8, 1999 (the "ORIGINAL INTERCREDITOR AGREEMENT",
and as 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, on the date hereof, a Continental Airlines Pass Through
Trust 2001-2D-O will be created to issue pass through certificates designated as
"Series 2001-2D-O" (the "CLASS D CERTIFICATES") pursuant to a Pass Through Trust
Agreement dated as of September 25, 1997 between Continental and Wilmington
Trust Company, as supplemented by Supplement No. 2001-2D-O thereto dated as of
the date hereof;
WHEREAS, the Class D Trustee will purchase Series D Equipment Notes
issued by Continental under certain Owned Aircraft Indentures using a portion of
the proceeds from the issuance of the Class D Certificates;
WHEREAS, in connection with the issuance of such Series D Equipment
Notes to the Class D Trustee, the parties hereto wish to amend the Original
Intercreditor Agreement in accordance with Section 9.1(a) and 9.1(c) of the
Original Intercreditor Agreement.
WHEREAS, the Ratings Confirmation required under Section 4(a)(vi) of
the Note Purchase Agreement in order to issue such Series D Equipment Notes has
been obtained.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. Except as otherwise defined in this
Amendment No. 1, terms defined in Section 1.1 of the Original Intercreditor
Agreement are used herein as defined therein.
ARTICLE II
AMENDMENTS TO THE ORIGINAL INTERCREDITOR AGREEMENT PURSUANT TO
SECTION 9.1(a)
SECTION 2.1 CERTAIN DEFINITIONS. Pursuant to the clause (x)(ii) of
the first proviso in the first sentence of Section 9.1(a) of the Original
Intercreditor Agreement, Section 1.1 of the Original Intercreditor Agreement is
hereby amended as follows:
(a) the term "Class D Trust" is amended to read as follows: "CLASS D
TRUST" means (A)(i) prior to the Transfer, the Continental Airlines Pass Through
Trust 2001-2D-O created and administered pursuant to the Class D Trust Agreement
and (ii) after the Transfer, the Continental Airlines Pass Through Trust
2001-2D-S created and administered pursuant to the Class D Trust Agreement and
(B) after the Final Distribution has been made with respect to the Class D
Certificates, such other pass through trust that acquires Series D Equipment
Notes, if and when established in accordance with the provisions of Section
4(a)(vi) of the Class D Note Purchase Agreement and subject to the provisions of
Section 9.1(c) of the Intercreditor Agreement.
(b) the term "Class D Trust Agreement" is added in alphabetical
order reading as follows: "CLASS D TRUST AGREEMENT" means (A)(i) prior to the
Transfer, the Basic Agreement, as supplemented by the Supplement No. 2001-2D-O
thereto dated as of the Class D Closing Date, governing the creation and
administration of the Continental Airlines Pass Through Trust 2001-2D-O and the
issuance of the Class D Certificates, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms, and (ii)
after the Transfer, the Basic Agreement, as supplemented by the Supplement No.
2001-2D-S thereto, governing the creation and administration of the Continental
Airlines Pass Through Trust 2001-2D-S and the issuance of the Class D
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 D Certificates, such other
agreement executed by Continental establishing a Class D Trust in accordance
with the provisions of Section 4(a)(vi) of the Class D Note Purchase Agreement
and subject to the provisions of Section 9.1(c) of the Intercreditor Agreement.
ARTICLE III
AMENDMENTS TO THE ORIGINAL INTERCREDITOR AGREEMENT PURSUANT TO
SECTION 9.1(c)
SECTION 3.1. ADDITIONAL PARTY. Pursuant to Section 9.1(c) of the
Original Intercreditor Agreement, the Original Intercreditor Agreement is hereby
amended by adding the Class D Trustee 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 Continental and the Subordination Agent, the Class D
Trustee shall be a party to the Intercreditor Agreement as fully and with the
same force and effect as if the Class D Trustee had originally executed and
delivered a counterpart thereof (it being understood and agreed that the fifth
and seventh "WHEREAS" clauses in the preliminary statements to the Original
Intercreditor Agreement do not apply to the Class D Certificates).
SECTION 3.2. FURTHER AMENDMENTS. (a) Section 1.1 of the Original
Intercreditor Agreement is amended as follows:
(i) the term "Adjusted Expected Distributions" is amended (i) by
deleting the word "on" in clause (x) and adding in lieu thereof the following:
"calculated at the Stated Interest Rate on the Pool Balance of", (ii) by adding
the words "for such Certificates" after the words "the first Distribution Date"
in clause (y)(A)(x) thereof, in clause (y)(A)(y)(iii) thereof and in two
instances in clause (y)(B)(i) thereof, and (iii) by adding at the end of such
definition an additional sentence as follows: "For purposes of calculating
Adjusted Expected Distributions with respect to the Certificates of the Class D
Trust, the original aggregate face amount of the Certificates of such Trust
shall be deemed to be $69,734,783."
(ii) the term "Aggregate LTV Collateral Amount" is amended by adding
at the end of such definition the following: "minus, in the case of the Class D
Certificates, the sum of the applicable LTV Collateral Amounts for each Leased
Aircraft".
(iii) the term "Certificate" is amended by replacing the word "or"
appearing before the words "a Class C Certificate" with a comma and adding the
words "or a Class D Certificate" after the words "a Class C Certificate".
(iv) the term "Class D Certificateholder" is added in alphabetical
order reading as follows: "CLASS D CERTIFICATEHOLDER" means, at any time, any
holder of one or more Class D Certificates.
(v) the term "Class D Closing Date" is added in alphabetical order
reading as follows: "CLASS D CLOSING DATE" means July 31, 2001.
(vi) the term "Class D Note Purchase Agreement" is added in
alphabetical order reading as follows: "CLASS D NOTE PURCHASE AGREEMENT" means
the Note Purchase Agreement, dated as of the Class D Closing Date, among
Continental, the Class D Trustee, the escrow agent named therein, WTC, as
Subordination Agent and as subordination agent under certain other intercreditor
agreements, and the Paying Agent.
(vii) the "Class D Trustee" is added in alphabetical order reading
as follows: "CLASS D TRUSTEE" means WTC, not in its individual capacity except
as expressly set forth in the Class D Trust Agreement, but solely as trustee
under the Class D Trust Agreement together with any successor trustee appointed
pursuant thereto.
(viii) the term "Class D Underwriting Agreement" is added in
alphabetical order reading as follows: "CLASS D UNDERWRITING AGREEMENT" means
the Underwriting Agreement dated July 13, 2001 among Morgan Stanley & Co.
Incorporated, Credit Suisse First Boston Corporation, the Depositary and
Continental, relating to the purchase of the Class D Certificates by Morgan
Stanley & Co. Incorporated and Credit Suisse First Boston Corporation, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
(ix) the term "Equipment Notes" is amended by replacing the word
"and" appearing before the words "the Series C Equipment Notes" with a comma and
inserting the words "and the Series D Equipment Notes" after the words "the
Series C Equipment Notes".
(x) the term "Expected Distributions" is amended (i) by deleting the
word "on" in clause (x) and adding in lieu thereof the following: "calculated at
the Stated Interest Rate on the Pool Balance of", (ii) by adding the words "for
such Certificates" after the words "the first Distribution Date" in clause
(y)(A) thereof and in clause (y)(B)(ii) thereof, and (iii) by adding at the end
of such definition an additional sentence as follows: "For purposes of
calculating Expected Distributions with respect to the Certificates of the Class
D Trust, the original aggregate face amount of the Certificates of such Trust
shall be deemed to be $69,734,783."
(xi) the term "Final Distributions" is amended by deleting the word
"on" in clause (x) and adding in lieu thereof the following: "calculated at the
Stated Interest Rate on the Pool Balance of".
(xii) the term "Final Legal Distribution Date" is amended by
deleting the word "and" appearing before the numeral "(iii)" and adding at the
end of such definition the words ", and (iv) with respect to the Class D
Certificates, December 1, 2006."
(xiii) the term "Financing Agreement" is amended by replacing the
word "and" with a comma and adding at the end of such definition the words "and
the Class D Note Purchase Agreement".
(xiv) the term "LTV Collateral Amount" is amended by deleting the
words "secured by" appearing in clause (ii) therein and adding in lieu thereof
the following: "issued in respect of".
(xv) the term "LTV Ratio" is amended by deleting the word "and"
appearing therein and adding at the end of such definition the following: ", and
for the Class D Certificates, 68.0%."
(xvi) the term "Operative Agreements" is amended by inserting the
words "the Class D Underwriting Agreement," after the words "the Underwriting
Agreement".
(xvii) the term "Performing Equipment Note" is amended to read as
follows: "PERFORMING EQUIPMENT NOTE" means an Equipment Note with respect to
which no payment default has occurred and is continuing (without giving effect
to any Acceleration); PROVIDED that in the event of a bankruptcy proceeding
under Title 11 of the United States Code (the "BANKRUPTCY CODE") in which
Continental is a debtor any payment default existing during the 60-day period
under Section 1110(a)(2)(A) of the Bankruptcy Code (or such longer period as may
apply under Section 1110(b) of the Bankruptcy Code or as may apply for the cure
of such payment default under Section 1110(a)(2)(B) of the Bankruptcy Code)
shall not be taken into consideration until the expiration of the applicable
period.
(xviii) the term "Pool Balance" is amended to read as follows: "POOL
BALANCE" means, with respect to each Trust or the Certificates issued by any
Trust, as of any date, (i) the original aggregate face amount of the
Certificates of such Trust (or, in the case of the Class D Trust or the Class D
Certificates, $69,734,783) LESS (ii) the aggregate amount of all payments made
in respect of the Certificates of such Trust under this Agreement or in respect
of Deposits relating to such Trust other than payments made under this Agreement
in respect of interest or premium thereon or reimbursement of any costs and
expenses in connection therewith. The Pool Balance for each Trust or for the
Certificates issued by any Trust as of any Distribution Date shall be computed
after giving effect to any special distribution with respect to unused Deposits,
payment of principal of the Equipment Notes or payment with respect to other
Trust Property held in such Trust and the distribution thereof pursuant to this
Agreement (except in the case of such unused Deposits) to be made on that date.
(xix) the term "PTC Event of Default" is amended by adding after the
words "interest due on such Certificates" appearing in clause (ii) thereof the
following: "(calculated at the Stated Interest Rate on the Pool Balance
thereof)".
(xx) the term "Regular Distribution Dates" is amended to read as
follows: "REGULAR DISTRIBUTION DATES" means (i) with respect to the Liquidity
Facilities and the Class A Certificates, Class B Certificates and Class C
Certificates, each February 2 and August 2, commencing on August 2, 1999, and
(ii) with respect to the Class D Certificates, each June 1 and December 1,
commencing on December 1, 2001; PROVIDED, HOWEVER, that, if any such day shall
not be a Business Day, the related distribution shall be made on the next
succeeding Business Day without additional interest.
(xxi) the term "Series D Equipment Notes" is amended to read as
follows: "SERIES D EQUIPMENT NOTES" means (A) the 7.568% Series D Equipment
Notes issued pursuant to any Owned Aircraft Indenture by Continental and
authenticated by the Loan Trustee thereunder, and any such Equipment Notes
issued in exchange therefore or replacement thereof pursuant to the terms of
such Owned Aircraft Indenture, and (B) after the Final Distribution has been
made with respect to the Class D Certificates, equipment notes, if any, issued
pursuant to any Indenture by the related Owner Trustee or Continental, as the
case may be, in accordance with Section 4(a)(vi) of the Class D Note Purchase
Agreement and subject to the provisions of Section 9.1(c) of the Intercreditor
Agreement and authenticated by the Loan Trustee under such Indenture, and
designated as "Series D" thereunder, and any such equipment notes issued in
exchange therefor or replacement thereof pursuant to the terms of such
Indenture.
(xxii) the term "Stated Interest Rate" is amended by deleting the
word "and" appearing before the numeral "(iii)" and adding at the end of such
definition the following: ", and (iv) with respect to the Class D Certificates,
7.568% per annum".
(xxiii) the term "Successor Trusts" is amended by replacing the word
"and" appearing therein with a comma and adding at the end of such definition
the following: "and Continental Airlines Pass Through Trust 2001-2D-S".
(xxiv) the term "Trust" is amended by replacing the word "or"
appearing before the words "the Class C Trust" with a comma and adding at the
end of such definition the words "or the Class D Trust".
(xxv) the term "Trust Agreement" is amended by replacing the
word "or" appearing before the words "the Class C Trust Agreement" with a comma
and adding at the end of such definition the words "or the Class D Trust
Agreement".
(xxvi) the term "Trustee" is amended by replacing the word "or"
appearing before the words "the Class C Trustee" with a comma and adding at the
end of such definition the words "or the Class D Trustee".
(b) Section 2.4(b)(i) of the Original Intercreditor Agreement is
amended by (i) replacing the words "Equipment Notes" appearing twice in
subclause (B)(y) of clause FIRST thereof with the words "the Series A Equipment
Notes, the Series B Equipment Notes and the Series C Equipment Notes", (ii)
deleting the word "and" appearing at the end of clause SEVENTH thereof, (iii)
amending the word "EIGHTH" to read "NINTH", (iv) inserting after clause SEVENTH
thereof a new clause EIGHTH reading as follows: "EIGHTH, such amount as shall be
required to pay in full Expected Distributions to the holders of the Class D
Certificates on such Special Distribution Date shall be distributed to the Class
D Trustee; and" and (v) deleting the word "on" appearing in the last sentence
before the words "such Certificates together with" and adding in lieu thereof
the following: "calculated at the Stated Interest Rate on the Pool Balance of".
(c) Section 2.6(b) of the Original Intercreditor Agreement is
amended by deleting the word "and" appearing before the letter "(z)" in the
first sentence thereof and inserting after the words "the Class C Trustee" at
the end of the first sentence thereof the following: "; and (aa) upon payment of
Final Distributions to the holders of Class C Certificates, the Class D
Trustee".
(d) Section 3.1(a) of the Original Intercreditor Agreement is
amended by changing the word "EIGHTH" appearing in clause (v) to "NINTH",
changing the numeral "(iv)" to the numeral "(v)" and the numeral "(v)" to the
numeral "(vi)" and inserting after clause (iii) thereof a new clause (iv)
reading as follows: "(iv) With respect to the Class D Certificates, the Class D
Trustee shall separately set forth the amounts to be paid in accordance with
clause "EIGHTH" of Section 3.2 or 2.4(b), as the case may be, hereof;".
(e) Section 3.1(b) of the Original Intercreditor Agreement is
amended by changing the numeral "(iv)" to the numeral "(v)" and the numeral
"(v)" to the numeral "(vi)" and inserting after clause (iii) thereof a new
clause (iv) reading as follows: "(iv) With respect to the Class D Certificates,
the Class D Trustee shall separately set forth the amounts to be paid in
accordance with clauses "FIRST" (to reimburse payments made by the Class D
Certificateholders pursuant to subclause (iii) of clause "FIRST" of Section 3.3
hereof) and "TENTH" of Section 3.3 hereof;"
(f) Section 3.1(f) of the Original Intercreditor Agreement is
amended to change the word "NINTH" appearing twice therein to the word "TENTH".
(g) Section 3.2 of the Original Intercreditor Agreement is amended
by (i) inserting after the words "Section 3.1(a) hereof" but before the colon
appearing in the first sentence thereof the following: "(PROVIDED, that (x) in
the case of each Regular Distribution Date for the Class D Certificates that is
not a Special Distribution Date, amounts shall be payable under clauses FIFTH
through SEVENTH of this Section 3.2 if and only if on the immediately preceding
Distribution Date, any amounts payable under such clauses FIFTH through SEVENTH
were not distributed in full due to the Subordination Agent not having
sufficient funds (after the application of Section 3.6(b)) on such Distribution
Date, and if any such amounts are so payable, such amount as the Subordination
Agent shall have available for distribution after giving effect to clauses FIRST
through FOURTH of this Section 3.2 up to an amount sufficient to pay such
amounts (determined as of such preceding Distribution Date) shall be deposited
in the Special Payments Account and distributed as a Special Payment, and (y) in
the case of each Regular Distribution Date (other than a Regular Distribution
Date for the Class D Certificates) that is not a Special Distribution Date,
amounts shall be payable under clause EIGHTH of this Section 3.2 if and only if
on the immediately preceding Distribution Date, any amounts payable under such
clause EIGHTH were not distributed in full due to the Subordination Agent not
having sufficient funds on such Distribution Date, and if any such amounts are
so payable, such amount as the Subordination Agent shall have available for
distribution after giving effect to clauses FIRST through SEVENTH of this
Section 3.2 up to an amount sufficient to pay such amounts (determined as of
such preceding Distribution Date) shall be deposited in the Special Payments
Account and distributed as a Special Payment)", (ii) amending the word "EIGHTH"
to read "NINTH", (iii) amending the word "NINTH" to read "TENTH" and (iv)
inserting after clause SEVENTH thereof a new clause EIGHTH reading as follows:
"EIGHTH, such amount as shall be required to pay in full Expected Distributions
to the holders of the Class D Certificates on such Distribution Date shall be
distributed to the Class D Trustee;".
(h) Section 3.3 of the Original Intercreditor Agreement is amended
by (i) deleting the word "and" appearing at the end of clause EIGHTH thereof,
(ii) replacing the period at the end of clause NINTH with the following: "; and"
and (iii) inserting at the end of such Section 3.3 a new clause TENTH reading as
follows: "TENTH, such amount remaining as shall be required to pay in full
Adjusted Expected Distributions on the Class D Certificates shall be distributed
to the Class D Trustee".
(i) Section 3.4(c) of the Original Intercreditor Agreement is
amended by changing the word "EIGHTH" appearing in the proviso therein to the
word "NINTH", changing the word "or" appearing in such proviso to a comma and
inserting the words "or "EIGHTH"" after the word ""SEVENTH"" appearing in such
proviso.
(j) Section 3.4 of the Original Intercreditor Agreement is amended
by adding a new subclause (d) reading as follows:
"(d) Notwithstanding the priority of payments specified in Sections
2.4(b)(i), 3.2 and 3.3, all payments received by the Subordination Agent under
any Owned Aircraft Indenture securing Equipment Notes of any Prior Series and to
be applied by the terms of such Owned Aircraft Indenture to the Series D
Equipment Notes issued in respect of any other Prior Series shall be promptly
distributed to the Class D Trustee. The terms "Equipment Notes", "Prior Series"
and "Series D Equipment Notes" as used in this Section 3.4(d) shall have the
respective meanings specified therefor in the Class D Note Purchase Agreement."
(k) Section 3.6(a) of the Original Intercreditor Agreement is
amended by adding the words "(other than a Regular Distribution Date with
respect to the Class D Certificates that is not a Special Distribution Date)"
after the words "any Distribution Date" appearing therein.
(l) Section 3.6(f) of the Original Intercreditor Agreement is
amended by adding the words "(other than a Regular Distribution Date with
respect to the Class D Certificates that is not a Special Distribution Date)"
after the words "each Distribution Date" appearing in each of clauses (i), (ii)
and (iii) thereof.
(m) Section 6.1 of the Original Intercreditor Agreement is amended
by (i) replacing the word "and" appearing before the words "the Class C Trustee"
in the first sentence thereof with a comma and (ii) inserting the words "and the
Class D Trustee" after the words "the Class C Trustee" in the first sentence
thereof.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 MISCELLANEOUS. The amendments to the Original
Intercreditor Agreement contained in Articles II and III hereof shall become
effective as of the date hereof, and from and after the date hereof, each
reference in the Intercreditor Agreement to "this Agreement", and each reference
in the Intercreditor Agreement or in any other Operative Agreement to the
"Intercreditor Agreement" or any like expression referring to the Intercreditor
Agreement, shall be deemed to refer to the Original Intercreditor Agreement as
amended by this Amendment No. 1. The Original Intercreditor Agreement, as
amended hereby, shall remain unchanged and in full force and effect. Each
Liquidity Provider, by its execution and delivery of this Amendment No. 1,
confirms that all of its obligations under the Intercreditor Agreement and the
Liquidity Facilities provided by such Liquidity Provider remain unchanged and in
full force and effect. Each party hereto agrees to execute and deliver all such
further agreements or documents, if any, as shall be necessary to give effect to
the provisions of this Amendment No. 1. This Amendment No. 1 may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument, and any of the parties hereto may execute this Amendment
No. 1 by signing any such counterpart. This Amendment No. 1 shall be governed
by, and construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written, and acknowledge that
this Amendment No. 1 has been made and delivered in the City of New York, and
this Amendment No. 1 has become effective only upon such execution and delivery.
CONTINENTAL AIRLINES, INC.
By
------------------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Class A
Trustee, Class B Trustee, Class C Trustee and Class
D Trustee
By
------------------------------------------------------
Name:
Title:
BAYERISCHE LANDESBANK
GIROZENTRALE,
as Class A Liquidity Provider, Class B Liquidity
Provider and Class C Liquidity Provider
By
------------------------------------------------------
Name:
Title:
By
------------------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity except as expressly set
forth herein but solely as Subordination Agent and
Trustee
By
------------------------------------------------------
Name:
Title:
AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (1999-2)
AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (this "AMENDMENT NO. 1")
dated as of July 31, 2001, among CONTINENTAL AIRLINES, INC., a Delaware
corporation ("CONTINENTAL"); WILMINGTON TRUST COMPANY, a Delaware corporation,
not in its individual capacity but solely as Trustee under the Continental
Airlines Pass Through Trust 1999-2A-1-S (the "CLASS A-1 TRUSTEE"), as Trustee
under the Continental Airlines Pass Through Trust 1999-2A-2-S (the "CLASS A-2
TRUSTEE"), as Trustee under the Continental Airlines Pass Through Trust
1999-2B-S (the "CLASS B TRUSTEE"), as Trustee under the Continental Airlines
Pass Through Trust 1999-2C-1-S (the "CLASS C-1 TRUSTEE"), as Trustee under the
Continental Airlines Pass Through Trust 1999-2C-2-S (the "CLASS C-2 TRUSTEE")
and as Trustee under the Continental Airlines Pass Through Trust 2001-2D-O (the
"CLASS D TRUSTEE"); BAYERISCHE LANDESBANK GIROZENTRALE, a public law banking
institution organized under the laws of the Free State of Bavaria, Germany, as
Class A-1 Liquidity Provider, Class A-2 Liquidity Provider, Class B Liquidity
Provider, Class C-1 Liquidity Provider and Class C-2 Liquidity Provider; and
WILMINGTON TRUST COMPANY, not in its individual capacity except as expressly set
forth in the Intercreditor Agreement referred to below, but solely as
Subordination Agent and trustee under the Intercreditor Agreement referred to
below (in such capacity, together with any duly appointed successor, the
"SUBORDINATION AGENT").
WHEREAS, Wilmington Trust Company, not in its individual capacity,
but solely as Class A-1 Trustee, Class A-2 Trustee, Class B Trustee, Class C-1
Trustee and Class C-2 Trustee, Bayerische Landesbank Girozentrale, as Class A-1
Liquidity Provider, Class A-2 Liquidity Provider, Class B Liquidity Provider,
Class C-1 Liquidity Provider and Class C-2 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, have entered
into the Intercreditor Agreement dated as of June 17, 1999 (the "ORIGINAL
INTERCREDITOR AGREEMENT", and as 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, on the date hereof, a Continental Airlines Pass Through
Trust 2001-2D-O will be created to issue pass through certificates designated as
"Series 2001-2D-O" (the "CLASS D CERTIFICATES") pursuant to a Pass Through Trust
Agreement dated as of September 25, 1997 between Continental and Wilmington
Trust Company, as supplemented by Supplement No. 2001-2D-O thereto dated as of
the date hereof;
WHEREAS, the Class D Trustee will purchase Series D Equipment Notes
issued by Continental under certain Owned Aircraft Indentures using a portion of
the proceeds from the issuance of the Class D Certificates;
WHEREAS, in connection with the issuance of such Series D Equipment
Notes to the Class D Trustee, the parties hereto wish to amend the Original
Intercreditor Agreement in accordance with Section 9.1(a) and 9.1(c) of the
Original Intercreditor Agreement.
WHEREAS, the Ratings Confirmation required under Section 4(a)(vi) of
the Note Purchase Agreement in order to issue such Series D Equipment Notes has
been obtained.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. Except as otherwise defined in this
Amendment No. 1, terms defined in Section 1.1 of the Original Intercreditor
Agreement are used herein as defined therein.
ARTICLE II
AMENDMENTS TO THE ORIGINAL INTERCREDITOR AGREEMENT PURSUANT TO
SECTION 9.1(a)
SECTION 2.1 CERTAIN DEFINITIONS. Pursuant to the clause (x)(ii) of
the first proviso in the first sentence of Section 9.1(a) of the Original
Intercreditor Agreement, Section 1.1 of the Original Intercreditor Agreement is
hereby amended as follows:
(a) the term "Class D Trust" is amended to read as follows: "CLASS D
TRUST" means (A)(i) prior to the Transfer, the Continental Airlines Pass Through
Trust 2001-2D-O created and administered pursuant to the Class D Trust Agreement
and (ii) after the Transfer, the Continental Airlines Pass Through Trust
2001-2D-S created and administered pursuant to the Class D Trust Agreement and
(B) after the Final Distribution has been made with respect to the Class D
Certificates, such other pass through trust that acquires Series D Equipment
Notes, if and when established in accordance with the provisions of Section
4(a)(vi) of the Class D Note Purchase Agreement and subject to the provisions of
Section 9.1(c) of the Intercreditor Agreement.
(b) the term "Class D Trust Agreement" is added in alphabetical
order reading as follows: "CLASS D TRUST AGREEMENT" means (A)(i) prior to the
Transfer, the Basic Agreement, as supplemented by the Supplement No. 2001-2D-O
thereto dated as of the Class D Closing Date, governing the creation and
administration of the Continental Airlines Pass Through Trust 2001-2D-O and the
issuance of the Class D Certificates, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms, and (ii)
after the Transfer, the Basic Agreement, as supplemented by the Supplement No.
2001-2D-S thereto, governing the creation and administration of the Continental
Airlines Pass Through Trust 2001-2D-S and the issuance of the Class D
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 D Certificates, such other
agreement executed by Continental establishing a Class D Trust in accordance
with the provisions of Section 4(a)(vi) of the Class D Note Purchase Agreement
and subject to the provisions of Section 9.1(c) of the Intercreditor Agreement.
ARTICLE III
AMENDMENTS TO THE ORIGINAL INTERCREDITOR AGREEMENT PURSUANT TO
SECTION 9.1(c)
SECTION 3.1. ADDITIONAL PARTY. Pursuant to Section 9.1(c) of the
Original Intercreditor Agreement, the Original Intercreditor Agreement is hereby
amended by adding the Class D Trustee 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 Continental and the Subordination Agent, the Class D
Trustee shall be a party to the Intercreditor Agreement as fully and with the
same force and effect as if the Class D Trustee had originally executed and
delivered a counterpart thereof (it being understood and agreed that the fifth
and seventh "WHEREAS" clauses in the preliminary statements to the Original
Intercreditor Agreement do not apply to the Class D Certificates).
SECTION 3.2. FURTHER AMENDMENTS. (a) Section 1.1 of the Original
Intercreditor Agreement is amended as follows:
(i) the term "Adjusted Expected Distributions" is amended (i) by
deleting the word "on" in clause (x) and adding in lieu thereof the following:
"calculated at the Stated Interest Rate on the Pool Balance of", (ii) by adding
the words "for such Certificates" after the words "the first Distribution Date"
in clause (y)(A)(x) thereof, in clause (y)(A)(y)(iii) thereof and in two
instances in clause (y)(B)(i) thereof, and (iii) by adding at the end of such
definition an additional sentence as follows: "For purposes of calculating
Adjusted Expected Distributions with respect to the Certificates of the Class D
Trust, the original aggregate face amount of the Certificates of such Trust
shall be deemed to be $30,144,374."
(ii) the term "Aggregate LTV Collateral Amount" is amended (i) by
inserting at the end of clause (A)(ii) before the words "multiplied by" the
following: "minus (iii) in the case of the Class D Certificates, the sum of the
applicable LTV Collateral Amounts for each Leased Aircraft," and (ii) by
deleting the word "and" appearing before the numeral "(iii)" and inserting at
the end of such definition the following: ", and (iv) in the case of the Class D
Certificates, 1.0".
(iii) the term "Certificate" is amended by replacing the word "or"
appearing before the words "a Class C-2 Certificate" with a comma and adding the
words "or a Class D Certificate" after the words "a Class C-2 Certificate".
(iv) the term "Class D Certificateholder" is added in alphabetical
order reading as follows: "CLASS D CERTIFICATEHOLDER" means, at any time, any
holder of one or more Class D Certificates.
(v) the term "Class D Closing Date" is added in alphabetical order
reading as follows: "CLASS D CLOSING DATE" means July 31, 2001.
(vi) the term "Class D Note Purchase Agreement" is added in
alphabetical order reading as follows: "CLASS D NOTE PURCHASE AGREEMENT" means
the Note Purchase Agreement, dated as of the Class D Closing Date, among
Continental, the Class D Trustee, the escrow agent named therein, WTC, as
Subordination Agent and as subordination agent under certain other intercreditor
agreements, and the Paying Agent.
(vii) the "Class D Trustee" is added in alphabetical order reading
as follows: "CLASS D TRUSTEE" means WTC, not in its individual capacity except
as expressly set forth in the Class D Trust Agreement, but solely as trustee
under the Class D Trust Agreement together with any successor trustee appointed
pursuant thereto.
(viii) the term "Class D Underwriting Agreement" is added in
alphabetical order reading as follows: "CLASS D UNDERWRITING AGREEMENT" means
the Underwriting Agreement dated July 13, 2001 among Morgan Stanley & Co.
Incorporated, Credit Suisse First Boston Corporation, the Depositary and
Continental, relating to the purchase of the Class D Certificates by Morgan
Stanley & Co. Incorporated and Credit Suisse First Boston Corporation, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
(ix) the term "Equipment Notes" is amended by replacing the word
"and" appearing before the words "the Series C-2 Equipment Notes" with a comma
and inserting the words "and the Series D Equipment Notes" after the words "the
Series C-2 Equipment Notes".
(x) the term "Expected Distributions" is amended (i) by deleting the
word "on" in clause (x) and adding in lieu thereof the following: "calculated at
the Stated Interest Rate on the Pool Balance of", (ii) by adding the words "for
such Certificates" after the words "the first Distribution Date" in clause
(y)(A) thereof and in clause (y)(B)(ii) thereof, and (iii) by adding at the end
of such definition an additional sentence as follows: "For purposes of
calculating Expected Distributions with respect to the Certificates of the Class
D Trust, the original aggregate face amount of the Certificates of such Trust
shall be deemed to be $30,144,374."
(xi) the term "Final Distributions" is amended by deleting the word
"on" in clause (x) and adding in lieu thereof the following: "calculated at the
Stated Interest Rate on the Pool Balance of".
(xii) the term "Final Legal Distribution Date" is amended by
deleting the word "and" appearing before the numeral "(v)" and adding at the end
of such definition the words ", and (vi) with respect to the Class D
Certificates, December 1, 2006."
(xiii) the term "Financing Agreement" is amended by replacing the
word "and" with a comma and adding at the end of such definition the words "and
the Class D Note Purchase Agreement".
(xiv) the term "LTV Collateral Amount" is amended by deleting the
words "secured by" appearing in clause (ii) therein and adding in lieu thereof
the following: "issued in respect of".
(xv) the term "LTV Ratio" is amended by replacing the word "and"
appearing therein with a comma and adding at the end of such definition the
following: ", and for the Class D Certificates, 62.80%."
(xvi) the term "Operative Agreements" is amended by inserting the
words "the Class D Underwriting Agreement," after the words "the Underwriting
Agreement".
(xvii) the term "Performing Equipment Note" is amended to read as
follows: "PERFORMING EQUIPMENT NOTE" means an Equipment Note with respect to
which no payment default has occurred and is continuing (without giving effect
to any Acceleration); PROVIDED that in the event of a bankruptcy proceeding
under Title 11 of the United States Code (the "BANKRUPTCY CODE") in which
Continental is a debtor any payment default existing during the 60-day period
under Section 1110(a)(2)(A) of the Bankruptcy Code (or such longer period as may
apply under Section 1110(b) of the Bankruptcy Code or as may apply for the cure
of such payment default under Section 1110(a)(2)(B) of the Bankruptcy Code)
shall not be taken into consideration until the expiration of the applicable
period.
(xviii) the term "Pool Balance" is amended to read as follows: "POOL
BALANCE" means, with respect to each Trust or the Certificates issued by any
Trust, as of any date, (i) the original aggregate face amount of the
Certificates of such Trust (or, in the case of the Class D Trust or the Class D
Certificates, $30,144,374) LESS (ii) the aggregate amount of all payments made
in respect of the Certificates of such Trust under this Agreement or in respect
of Deposits relating to such Trust other than payments made under this Agreement
in respect of interest or premium thereon or reimbursement of any costs and
expenses in connection therewith. The Pool Balance for each Trust or for the
Certificates issued by any Trust as of any Distribution Date shall be computed
after giving effect to any special distribution with respect to unused Deposits,
payment of principal of the Equipment Notes or payment with respect to other
Trust Property held in such Trust and the distribution thereof pursuant to this
Agreement (except in the case of such unused Deposits) to be made on that date.
(xix) the term "PTC Event of Default" is amended by adding after the
words "interest due on such Certificates" appearing in clause (ii) thereof the
following: "(calculated at the Stated Interest Rate on the Pool Balance
thereof)".
(xx) the term "Regular Distribution Dates" is amended to read as
follows: "REGULAR DISTRIBUTION DATES" means (i) with respect to the Liquidity
Facilities and the Class A-1 Certificates, Class A-2 Certificates, Class B
Certificates, Class C-1 Certificates and Class C-2 Certificates, each March 15
and September 15, commencing on September 15, 1999, and (ii) with respect to the
Class D Certificates, each June 1 and December 1, commencing on December 1,
2001; PROVIDED, HOWEVER, that, if any such day shall not be a Business Day, the
related distribution shall be made on the next succeeding Business Day without
additional interest.
(xxi) the term "Series D Equipment Notes" is amended to read as
follows: "SERIES D EQUIPMENT NOTES" means (A) the 7.568% Series D Equipment
Notes issued pursuant to any Owned Aircraft Indenture by Continental and
authenticated by the Loan Trustee thereunder, and any such Equipment Notes
issued in exchange therefore or replacement thereof pursuant to the terms of
such Owned Aircraft Indenture, and (B) after the Final Distribution has been
made with respect to the Class D Certificates, equipment notes, if any, issued
pursuant to any Indenture by the related Owner Trustee or Continental, as the
case may be, in accordance with Section 4(a)(vi) of the Class D Note Purchase
Agreement and subject to the provisions of Section 9.1(c) of the Intercreditor
Agreement and authenticated by the Loan Trustee under such Indenture, and
designated as "Series D" thereunder, and any such equipment notes issued in
exchange therefor or replacement thereof pursuant to the terms of such
Indenture.
(xxii) the term "Stated Interest Rate" is amended by deleting the
word "and" appearing before the numeral "(v)" and adding at the end of such
definition the following: ", and (vi) with respect to the Class D Certificates,
7.568% per annum".
(xxiii) the term "Successor Trusts" is amended by replacing the word
"and" appearing therein with a comma and adding at the end of such definition
the following: "and Continental Airlines Pass Through Trust 2001-2D-S".
(xxiv) the term "Trust" is amended by replacing the word "or"
appearing before the words "the Class C-2 Trust" with a comma and adding at the
end of such definition the words "or the Class D Trust".
(xxv) the term "Trust Agreement" is amended by replacing the word
"or" appearing before the words "the Class C-2 Trust Agreement" with a comma and
adding at the end of such definition the words "or the Class D Trust Agreement".
(xxvi) the term "Trustee" is amended by replacing the word "or"
appearing before the words "the Class C-2 Trustee" with a comma and adding at
the end of such definition the words "or the Class D Trustee".
(b) Section 2.4(b)(i) of the Original Intercreditor Agreement is
amended by (i) replacing the words "Equipment Notes" appearing twice in
subclause (B)(y) of clause FIRST thereof with the words "the Series A-1
Equipment Notes, the Series A-2 Equipment Notes, the Series B Equipment Notes,
the Series C-1 Equipment Notes and the Series C-2 Equipment Notes", (ii)
deleting the word "and" appearing at the end of clause SEVENTH thereof, (iii)
amending the word "EIGHTH" to read "NINTH", (iv) inserting after clause SEVENTH
thereof a new clause EIGHTH reading as follows: "EIGHTH, such amount as shall be
required to pay in full Expected Distributions to the holders of the Class D
Certificates on such Special Distribution Date shall be distributed to the Class
D Trustee; and" and (v) deleting the word "on" appearing in the last sentence
before the words "such Certificates together with" and adding in lieu thereof
the following: "calculated at the Stated Interest Rate on the Pool Balance of".
(c) Section 2.6(b) of the Original Intercreditor Agreement is
amended by deleting the word "and" appearing before the letter "(z)" in the
first sentence thereof and inserting after the words "Class C-2 Trustee" at the
end of the first sentence thereof the following: "; and (aa) upon payment of
Final Distributions to the holders of Class C-1 Certificates and Class C-2
Certificates, the Class D Trustee".
(d) Section 3.1(a) of the Original Intercreditor Agreement is
amended by changing the word "EIGHTH" appearing in clause (v) to "NINTH",
changing the numeral "(iv)" to the numeral "(v)" and the numeral "(v)" to the
numeral "(vi)" and inserting after clause (iii) thereof a new clause (iv)
reading as follows: "(iv) With respect to the Class D Certificates, the Class D
Trustee shall separately set forth the amounts to be paid in accordance with
clause "EIGHTH" of Section 3.2 or 2.4(b), as the case may be, hereof;".
(e) Section 3.1(b) of the Original Intercreditor Agreement is
amended by changing the numeral "(iv)" to the numeral "(v)" and the numeral
"(v)" to the numeral "(vi)" and inserting after clause (iii) thereof a new
clause (iv) reading as follows: "(iv) With respect to the Class D Certificates,
the Class D Trustee shall separately set forth the amounts to be paid in
accordance with clauses "FIRST" (to reimburse payments made by the Class D
Certificateholders pursuant to subclause (iii) of clause "FIRST" of Section 3.3
hereof) and "TENTH" of Section 3.3 hereof;"
(f) Section 3.1(f) of the Original Intercreditor Agreement is
amended to change the word "NINTH" appearing twice therein to the word "TENTH".
(g) Section 3.2 of the Original Intercreditor Agreement is amended
by (i) inserting after the words "Section 3.1(a) hereof" but before the colon
appearing in the first sentence thereof the following: "(PROVIDED, that (x) in
the case of each Regular Distribution Date for the Class D Certificates that is
not a Special Distribution Date, amounts shall be payable under clauses FIFTH
through SEVENTH of this Section 3.2 if and only if on the immediately preceding
Distribution Date, any amounts payable under such clauses FIFTH through SEVENTH
were not distributed in full due to the Subordination Agent not having
sufficient funds (after the application of Section 3.6(b)) on such Distribution
Date, and if any such amounts are so payable, such amount as the Subordination
Agent shall have available for distribution after giving effect to clauses FIRST
through FOURTH of this Section 3.2 up to an amount sufficient to pay such
amounts (determined as of such preceding Distribution Date) shall be deposited
in the Special Payments Account and distributed as a Special Payment, and (y) in
the case of each Regular Distribution Date (other than a Regular Distribution
Date for the Class D Certificates) that is not a Special Distribution Date,
amounts shall be payable under clause EIGHTH of this Section 3.2 if and only if
on the immediately preceding Distribution Date, any amounts payable under such
clause EIGHTH were not distributed in full due to the Subordination Agent not
having sufficient funds on such Distribution Date, and if any such amounts are
so payable, such amount as the Subordination Agent shall have available for
distribution after giving effect to clauses FIRST through SEVENTH of this
Section 3.2 up to an amount sufficient to pay such amounts (determined as of
such preceding Distribution Date) shall be deposited in the Special Payments
Account and distributed as a Special Payment)", (ii) amending the word "EIGHTH"
to read "NINTH", (iii) amending the word "NINTH" to read "TENTH" and (iv)
inserting after clause SEVENTH thereof a new clause EIGHTH reading as follows:
"EIGHTH, such amount as shall be required to pay in full Expected Distributions
to the holders of the Class D Certificates on such Distribution Date shall be
distributed to the Class D Trustee;".
(h) Section 3.3 of the Original Intercreditor Agreement is amended
by (i) deleting the word "and" appearing at the end of clause EIGHTH thereof,
(ii) replacing the period at the end of clause NINTH with the following: "; and"
and (iii) inserting at the end of such Section 3.3 a new clause TENTH reading as
follows: "TENTH, such amount remaining as shall be required to pay in full
Adjusted Expected Distributions on the Class D Certificates shall be distributed
to the Class D Trustee".
(i) Section 3.4(c) of the Original Intercreditor Agreement is
amended by changing the word "EIGHTH" appearing in the proviso therein to the
word "NINTH", changing the word "or" appearing in such proviso to a comma and
inserting the words "or "EIGHTH"" after the word ""SEVENTH"" appearing in such
proviso.
(j) Section 3.4 of the Original Intercreditor Agreement is amended
by adding a new subclause (d) reading as follows:
"(d) Notwithstanding the priority of payments specified in Sections
2.4(b)(i), 3.2 and 3.3, all payments received by the Subordination Agent under
any Owned Aircraft Indenture securing Equipment Notes of any Prior Series and to
be applied by the terms of such Owned Aircraft Indenture to the Series D
Equipment Notes issued in respect of any other Prior Series shall be promptly
distributed to the Class D Trustee. The terms "Equipment Notes", "Prior Series"
and "Series D Equipment Notes" as used in this Section 3.4(d) shall have the
respective meanings specified therefor in the Class D Note Purchase Agreement."
(k) Section 3.6(a) of the Original Intercreditor Agreement is
amended by adding the words "(other than a Regular Distribution Date with
respect to the Class D Certificates that is not a Special Distribution Date)"
after the words "any Distribution Date" appearing therein.
(l) Section 3.6(f) of the Original Intercreditor Agreement is
amended by adding the words "(other than a Regular Distribution Date with
respect to the Class D Certificates that is not a Special Distribution Date)"
after the words "each Distribution Date" appearing in each of clauses (i), (ii),
(iii), (iv) and (v) thereof.
(m) Section 6.1 of the Original Intercreditor Agreement is amended
by (i) replacing the word "and" appearing before the words "the Class C-2
Trustee" in the first sentence thereof with a comma and (ii) inserting the words
"and the Class D Trustee" after the words "the Class C-2 Trustee" in the first
sentence thereof.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 MISCELLANEOUS. The amendments to the Original
Intercreditor Agreement contained in Articles II and III hereof shall become
effective as of the date hereof, and from and after the date hereof, each
reference in the Intercreditor Agreement to "this Agreement", and each reference
in the Intercreditor Agreement or in any other Operative Agreement to the
"Intercreditor Agreement" or any like expression referring to the Intercreditor
Agreement, shall be deemed to refer to the Original Intercreditor Agreement as
amended by this Amendment No. 1. The Original Intercreditor Agreement, as
amended hereby, shall remain unchanged and in full force and effect. Each
Liquidity Provider, by its execution and delivery of this Amendment No. 1,
confirms that all of its obligations under the Intercreditor Agreement and the
Liquidity Facilities provided by such Liquidity Provider remain unchanged and in
full force and effect. Each party hereto agrees to execute and deliver all such
further agreements or documents, if any, as shall be necessary to give effect to
the provisions of this Amendment No. 1. This Amendment No. 1 may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument, and any of the parties hereto may execute this Amendment
No. 1 by signing any such counterpart. This Amendment No. 1 shall be governed
by, and construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written, and acknowledge that
this Amendment No. 1 has been made and delivered in the City of New York, and
this Amendment No. 1 has become effective only upon such execution and delivery.
CONTINENTAL AIRLINES, INC.
By
------------------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Class A-1
Trustee, Class A-2 Trustee, Class B Trustee, Class
C-1 Trustee, Class C-2 Trustee and Class D Trustee
By
------------------------------------------------------
Name:
Title:
BAYERISCHE LANDESBANK
GIROZENTRALE,
as Class A-1 Liquidity Provider, Class A-2
Liquidity Provider, Class B Liquidity Provider,
Class C-1 Liquidity Provider and Class C-2
Liquidity Provider
By
------------------------------------------------------
Name:
Title:
By
------------------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity except as expressly set
forth herein but solely as Subordination Agent and
Trustee
By
------------------------------------------------------
Name:
Title:
AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (2000-1)
AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (this "AMENDMENT NO. 1")
dated as of July 31, 2001, among CONTINENTAL AIRLINES, INC., a Delaware
corporation ("CONTINENTAL"); WILMINGTON TRUST COMPANY, a Delaware corporation,
not in its individual capacity but solely as Trustee under the Continental
Airlines Pass Through Trust 2000-1A-1-S (the "CLASS A-1 TRUSTEE"), as Trustee
under the Continental Airlines Pass Through Trust 2000-1A-2-S (the "CLASS A-2
TRUSTEE"), as Trustee under the Continental Airlines Pass Through Trust
2000-1B-S (the "CLASS B TRUSTEE"), as Trustee under the Continental Airlines
Pass Through Trust 2000-1C-1-S (the "CLASS C-1 TRUSTEE"), as Trustee under the
Continental Airlines Pass Through Trust 2000-1C-2-S (the "CLASS C-2 TRUSTEE")
and as Trustee under the Continental Airlines Pass Through Trust 2001-2D-O (the
"CLASS D TRUSTEE"); LANDESBANK HESSEN-THURINGEN GIROZENTRALE, a public-law
banking institution organized under the laws of Germany, as Class A-1 Liquidity
Provider, Class A-2 Liquidity Provider and Class B Liquidity Provider; MORGAN
STANLEY CAPITAL SERVICES INC., a Delaware corporation, as Class C-1 Liquidity
Provider and Class C-2 Liquidity Provider; and WILMINGTON TRUST COMPANY, not in
its individual capacity except as expressly set forth in the Intercreditor
Agreement referred to below, but solely as Subordination Agent and trustee under
the Intercreditor Agreement referred to below (in such capacity, together with
any duly appointed successor, the "SUBORDINATION AGENT").
WHEREAS, Wilmington Trust Company, not in its individual capacity,
but solely as Class A-1 Trustee, Class A-2 Trustee, Class B Trustee, Class C-1
Trustee and Class C-2 Trustee, Credit Suisse First Boston, New York branch, as
Class A-1 Liquidity Provider, Class A-2 Liquidity Provider and Class B Liquidity
Provider, Morgan Stanley Capital Services Inc., as Class C-1 Liquidity Provider
and Class C-2 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, have entered into the Intercreditor
Agreement dated as of March 15, 2000 (the "CLOSING DATE INTERCREDITOR
AGREEMENT");
WHEREAS, Landesbank Hessen-Thuringen Girozentrale has replaced
Credit Suisse First Boston, New York branch, as Class A-1 Liquidity Provider,
Class A-2 Liquidity Provider and Class B Liquidity Provider in accordance with
that certain Acknowledgment and Agreement dated May 12, 2000 (the
"ACKNOWLEDGMENT AND AGREEMENT"; the Closing Date Intercreditor Agreement, as
amended by the Acknowledgment and Agreement, the "ORIGINAL INTERCREDITOR
AGREEMENT"; the Original Intercreditor Agreement, as 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, on the date hereof, a Continental Airlines Pass Through
Trust 2001-2D-O will be created to issue pass through certificates designated as
"Series 2001-2D-O" (the "CLASS D CERTIFICATES") pursuant to a Pass Through Trust
Agreement dated as of September 25, 1997 between Continental and Wilmington
Trust Company, as supplemented by Supplement No. 2001-2D-O thereto dated as of
the date hereof;
WHEREAS, the Class D Trustee will purchase Series D Equipment Notes
issued by Continental under certain Owned Aircraft Indentures using a portion of
the proceeds from the issuance of the Class D Certificates;
WHEREAS, in connection with the issuance of such Series D Equipment
Notes to the Class D Trustee, the parties hereto wish to amend the Original
Intercreditor Agreement in accordance with Section 9.1(a) and 9.1(c) of the
Original Intercreditor Agreement.
WHEREAS, the Ratings Confirmation required under Section 4(a)(vi) of
the Note Purchase Agreement in order to issue such Series D Equipment Notes has
been obtained.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. Except as otherwise defined in this
Amendment No. 1, terms defined in Section 1.1 of the Original Intercreditor
Agreement are used herein as defined therein.
ARTICLE II
AMENDMENTS TO THE ORIGINAL INTERCREDITOR AGREEMENT PURSUANT TO
SECTION 9.1(a)
SECTION 2.1 CERTAIN DEFINITIONS. Pursuant to the clause (x)(ii) of
the first proviso in the first sentence of Section 9.1(a) of the Original
Intercreditor Agreement, Section 1.1 of the Original Intercreditor Agreement is
hereby amended as follows:
(a) the term "Class D Trust" is amended to read as follows: "CLASS D
TRUST" means (A)(i) prior to the Transfer, the Continental Airlines Pass Through
Trust 2001-2D-O created and administered pursuant to the Class D Trust Agreement
and (ii) after the Transfer, the Continental Airlines Pass Through Trust
2001-2D-S created and administered pursuant to the Class D Trust Agreement and
(B) after the Final Distribution has been made with respect to the Class D
Certificates, such other pass through trust that acquires Series D Equipment
Notes, if and when established in accordance with the provisions of Section
4(a)(vi) of the Class D Note Purchase Agreement and subject to the provisions of
Section 9.1(c) of the Intercreditor Agreement.
(b) the term "Class D Trust Agreement" is added in alphabetical
order reading as follows: "CLASS D TRUST AGREEMENT" means (A)(i) prior to the
Transfer, the Basic Agreement, as supplemented by the Supplement No. 2001-2D-O
thereto dated as of the Class D Closing Date, governing the creation and
administration of the Continental Airlines Pass Through Trust 2001-2D-O and the
issuance of the Class D Certificates, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms, and (ii)
after the Transfer, the Basic Agreement, as supplemented by the Supplement No.
2001-2D-S thereto, governing the creation and administration of the Continental
Airlines Pass Through Trust 2001-2D-S and the issuance of the Class D
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 D Certificates, such other
agreement executed by Continental establishing a Class D Trust in accordance
with the provisions of Section 4(a)(vi) of the Class D Note Purchase Agreement
and subject to the provisions of Section 9.1(c) of the Intercreditor Agreement.
ARTICLE III
AMENDMENTS TO THE ORIGINAL INTERCREDITOR AGREEMENT PURSUANT TO
SECTION 9.1(c)
SECTION 3.1. ADDITIONAL PARTY. Pursuant to Section 9.1(c) of the
Original Intercreditor Agreement, the Original Intercreditor Agreement is hereby
amended by adding the Class D Trustee 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 Continental and the Subordination Agent, the Class D
Trustee shall be a party to the Intercreditor Agreement as fully and with the
same force and effect as if the Class D Trustee had originally executed and
delivered a counterpart thereof (it being understood and agreed that the fifth
and eighth "WHEREAS" clauses in the preliminary statements to the Original
Intercreditor Agreement do not apply to the Class D Certificates).
SECTION 3.2. FURTHER AMENDMENTS. (a) Section 1.1 of the Original
Intercreditor Agreement is amended as follows:
(i) the term "Adjusted Expected Distributions" is amended (i) by
deleting the word "on" in clause (x) and adding in lieu thereof the following:
"calculated at the Stated Interest Rate on the Pool Balance of", (ii) by adding
the words "for such Certificates" after the words "the first Distribution Date"
in clause (y)(A)(x) thereof, in clause (y)(A)(y)(iii) thereof and in two
instances in clause (y)(B)(i) thereof, and (iii) by adding at the end of such
definition an additional sentence as follows: "For purposes of calculating
Adjusted Expected Distributions with respect to the Certificates of the Class D
Trust, the original aggregate face amount of the Certificates of such Trust
shall be deemed to be $22,408,994."
(ii) the term "Aggregate LTV Collateral Amount" is amended (i) by
inserting at the end of clause (A)(ii) before the words "multiplied by" the
following: "minus (iii) in the case of the Class D Certificates, the sum of the
applicable LTV Collateral Amounts for each Leased Aircraft," and (ii) by
deleting the word "and" appearing before the numeral "(iii)" and inserting at
the end of such definition the following: ", and (iv) in the case of the Class D
Certificates, 1.0".
(iii) the term "Certificate" is amended by replacing the word "or"
appearing before the words "a Class C-2 Certificate" with a comma and adding the
words "or a Class D Certificate" after the words "a Class C-2 Certificate".
(iv) the term "Class D Certificateholder" is added in alphabetical
order reading as follows: "CLASS D CERTIFICATEHOLDER" means, at any time, any
holder of one or more Class D Certificates.
(v) the term "Class D Closing Date" is added in alphabetical order
reading as follows: "CLASS D CLOSING DATE" means July 31, 2001.
(vi) the term "Class D Note Purchase Agreement" is added in
alphabetical order reading as follows: "CLASS D NOTE PURCHASE AGREEMENT" means
the Note Purchase Agreement, dated as of the Class D Closing Date, among
Continental, the Class D Trustee, the escrow agent named therein, WTC, as
Subordination Agent and as subordination agent under certain other intercreditor
agreements, and the Paying Agent.
(vii) the "Class D Trustee" is added in alphabetical order reading
as follows: "CLASS D TRUSTEE" means WTC, not in its individual capacity except
as expressly set forth in the Class D Trust Agreement, but solely as trustee
under the Class D Trust Agreement together with any successor trustee appointed
pursuant thereto.
(viii) the term "Class D Underwriting Agreement" is added in
alphabetical order reading as follows: "CLASS D UNDERWRITING AGREEMENT" means
the Underwriting Agreement dated July 13, 2001 among Morgan Stanley & Co.
Incorporated, Credit Suisse First Boston Corporation, the Depositary and
Continental, relating to the purchase of the Class D Certificates by Morgan
Stanley & Co. Incorporated and Credit Suisse First Boston Corporation, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
(ix) the term "Equipment Notes" is amended by replacing the word
"and" appearing before the words "the Series C-2 Equipment Notes" with a comma
and inserting the words "and the Series D Equipment Notes" after the words "the
Series C-2 Equipment Notes".
(x) the term "Expected Distributions" is amended (i) by deleting the
word "on" in clause (x) and adding in lieu thereof the following: "calculated at
the Stated Interest Rate on the Pool Balance of", (ii) by adding the words "for
such Certificates" after the words "the first Distribution Date" in clause
(y)(A) thereof and in clause (y)(B)(ii) thereof, and (iii) by adding at the end
of such definition an additional sentence as follows: "For purposes of
calculating Expected Distributions with respect to the Certificates of the Class
D Trust, the original aggregate face amount of the Certificates of such Trust
shall be deemed to be $22,408,994."
(xi) the term "Final Distributions" is amended by deleting the word
"on" in clause (x) and adding in lieu thereof the following: "calculated at the
Stated Interest Rate on the Pool Balance of".
(xii) the term "Final Legal Distribution Date" is amended by
deleting the word "and" appearing before the numeral "(v)" and adding at the end
of such definition the words ", and (vi) with respect to the Class D
Certificates, December 1, 2006."
(xiii) the term "Financing Agreement" is amended by replacing the
word "and" with a comma and adding at the end of such definition the words "and
the Class D Note Purchase Agreement".
(xiv) the term "LTV Collateral Amount" is amended by deleting the
words "secured by" appearing in clause (ii) therein and adding in lieu thereof
the following: "issued in respect of".
(xv) the term "LTV Ratio" is amended by adding in a sixth column in
the table appearing in such definition the following:
Class D
CERTIFICATES
------------
64.0%
64.0
NA
(xvi) the term "Operative Agreements" is amended by inserting the
words "the Class D Underwriting Agreement," after the words "the Underwriting
Agreement".
(xvii) the term "Performing Equipment Note" is amended to read as
follows: "PERFORMING EQUIPMENT NOTE" means an Equipment Note with respect to
which no payment default has occurred and is continuing (without giving effect
to any Acceleration); PROVIDED that in the event of a bankruptcy proceeding
under Title 11 of the United States Code (the "BANKRUPTCY CODE") in which
Continental is a debtor any payment default existing during the 60-day period
under Section 1110(a)(2)(A) of the Bankruptcy Code (or such longer period as may
apply under Section 1110(b) of the Bankruptcy Code or as may apply for the cure
of such payment default under Section 1110(a)(2)(B) of the Bankruptcy Code)
shall not be taken into consideration until the expiration of the applicable
period.
(xviii) the term "Pool Balance" is amended to read as follows: "POOL
BALANCE" means, with respect to each Trust or the Certificates issued by any
Trust, as of any date, (i) the original aggregate face amount of the
Certificates of such Trust (or, in the case of the Class D Trust or the Class D
Certificates, $22,408,994) LESS (ii) the aggregate amount of all payments made
in respect of the Certificates of such Trust under this Agreement or in respect
of Deposits relating to such Trust other than payments made under this Agreement
in respect of interest or premium thereon or reimbursement of any costs and
expenses in connection therewith. The Pool Balance for each Trust or for the
Certificates issued by any Trust as of any Distribution Date shall be computed
after giving effect to any special distribution with respect to unused Deposits,
payment of principal of the Equipment Notes or payment with respect to other
Trust Property held in such Trust and the distribution thereof pursuant to this
Agreement (except in the case of such unused Deposits) to be made on that date.
(xix) the term "PTC Event of Default" is amended by adding after the
words "interest due on such Certificates" appearing in clause (ii) thereof the
following: "(calculated at the Stated Interest Rate on the Pool Balance
thereof)".
(xx) the term "Regular Distribution Dates" is amended to read as
follows: "REGULAR DISTRIBUTION DATES" means (i) with respect to the Liquidity
Facilities and the Class A-1 Certificates, Class A-2 Certificates, Class B
Certificates, Class C-1 Certificates and Class C-2 Certificates, each May 1 and
November 1, commencing on May 1, 2000, and (ii) with respect to the Class D
Certificates, each June 1 and December 1, commencing on December 1, 2001;
PROVIDED, HOWEVER, that, if any such day shall not be a Business Day, the
related distribution shall be made on the next succeeding Business Day without
additional interest.
(xxi) the term "Series D Equipment Notes" is amended to read as
follows: "SERIES D EQUIPMENT NOTES" means (A) the 7.568% Series D Equipment
Notes issued pursuant to any Owned Aircraft Indenture by Continental and
authenticated by the Loan Trustee thereunder, and any such Equipment Notes
issued in exchange therefore or replacement thereof pursuant to the terms of
such Owned Aircraft Indenture, and (B) after the Final Distribution has been
made with respect to the Class D Certificates, equipment notes, if any, issued
pursuant to any Indenture by the related Owner Trustee or Continental, as the
case may be, in accordance with Section 4(a)(vi) of the Class D Note Purchase
Agreement and subject to the provisions of Section 9.1(c) of the Intercreditor
Agreement and authenticated by the Loan Trustee under such Indenture, and
designated as "Series D" thereunder, and any such equipment notes issued in
exchange therefor or replacement thereof pursuant to the terms of such
Indenture.
(xxii) the term "Stated Interest Rate" is amended by deleting the
word "and" appearing before the numeral "(v)" and adding at the end of such
definition the following: ", and (vi) with respect to the Class D Certificates,
7.568% per annum".
(xxiii) the term "Successor Trusts" is amended by replacing the word
"and" appearing therein with a comma and adding at the end of such definition
the following: "and Continental Airlines Pass Through Trust 2001-2D-S".
(xxiv) the term "Trust" is amended by replacing the word "or"
appearing before the words "the Class C-2 Trust" with a comma and adding at the
end of such definition the words "or the Class D Trust".
(xxv) the term "Trust Agreement" is amended by replacing the word
"or" appearing before the words "the Class C-2 Trust Agreement" with a comma and
adding at the end of such definition the words "or the Class D Trust Agreement".
(xxvi) the term "Trustee" is amended by replacing the word "or"
appearing before the words "the Class C-2 Trustee" with a comma and adding at
the end of such definition the words "or the Class D Trustee".
(b) Section 2.4(b)(i) of the Original Intercreditor Agreement is
amended by (i) replacing the words "Equipment Notes" appearing twice in
subclause (B)(y) of clause FIRST thereof with the words "the Series A-1
Equipment Notes, the Series A-2 Equipment Notes, the Series B Equipment Notes,
the Series C-1 Equipment Notes and the Series C-2 Equipment Notes", (ii)
deleting the word "and" appearing at the end of clause SEVENTH thereof, (iii)
amending the word "EIGHTH" to read "NINTH", (iv) inserting after clause SEVENTH
thereof a new clause eighth reading as follows: "EIGHTH, such amount as shall be
required to pay in full Expected Distributions to the holders of the Class D
Certificates on such Special Distribution Date shall be distributed to the Class
D Trustee; and" and (v) deleting the word "on" appearing in the last sentence
before the words "such Certificates together with" and adding in lieu thereof
the following: "calculated at the Stated Interest Rate on the Pool Balance of".
(c) Section 2.6(b) of the Original Intercreditor Agreement is
amended by deleting the word "and" appearing before the letter "(z)" in the
first sentence thereof and inserting after the words "Class C-2 Trustee" at the
end of the first sentence thereof the following: "; and (aa) upon payment of
Final Distributions to the holders of Class C-1 Certificates and Class C-2
Certificates, the Class D Trustee".
(d) Section 3.1(a) of the Original Intercreditor Agreement is
amended by changing the word "EIGHTH" appearing in clause (v) to "NINTH",
changing the numeral "(iv)" to the numeral "(v)" and the numeral "(v)" to the
numeral "(vi)" and inserting after clause (iii) thereof a new clause (iv)
reading as follows: "(iv) With respect to the Class D Certificates, the Class D
Trustee shall separately set forth the amounts to be paid in accordance with
clause "EIGHTH" of Section 3.2 or 2.4(b), as the case may be, hereof;".
(e) Section 3.1(b) of the Original Intercreditor Agreement is
amended by changing the numeral "(iv)" to the numeral "(v)" and the numeral
"(v)" to the numeral "(vi)" and inserting after clause (iii) thereof a new
clause (iv) reading as follows: "(iv) With respect to the Class D Certificates,
the Class D Trustee shall separately set forth the amounts to be paid in
accordance with clauses "FIRST" (to reimburse payments made by the Class D
Certificateholders pursuant to subclause (iii) of clause "FIRST" of Section 3.3
hereof) and "TENTH" of Section 3.3 hereof;"
(f) Section 3.1(f) of the Original Intercreditor Agreement is
amended to change the word "NINTH" appearing twice therein to the word "TENTH".
(g) Section 3.2 of the Original Intercreditor Agreement is amended
by (i) inserting after the words "Section 3.1(a) hereof" but before the colon
appearing in the first sentence thereof the following: "(PROVIDED, that (x) in
the case of each Regular Distribution Date for the Class D Certificates that is
not a Special Distribution Date, amounts shall be payable under clauses FIFTH
through SEVENTH of this Section 3.2 if and only if on the immediately preceding
Distribution Date, any amounts payable under such clauses FIFTH through SEVENTH
were not distributed in full due to the Subordination Agent not having
sufficient funds (after the application of Section 3.6(b)) on such Distribution
Date, and if any such amounts are so payable, such amount as the Subordination
Agent shall have available for distribution after giving effect to clauses FIRST
through FOURTH of this Section 3.2 up to an amount sufficient to pay such
amounts (determined as of such preceding Distribution Date) shall be deposited
in the Special Payments Account and distributed as a Special Payment, and (y) in
the case of each Regular Distribution Date (other than a Regular Distribution
Date for the Class D Certificates) that is not a Special Distribution Date,
amounts shall be payable under clause EIGHTH of this Section 3.2 if and only if
on the immediately preceding Distribution Date, any amounts payable under such
clause EIGHTH were not distributed in full due to the Subordination Agent not
having sufficient funds on such Distribution Date, and if any such amounts are
so payable, such amount as the Subordination Agent shall have available for
distribution after giving effect to clauses FIRST through SEVENTH of this
Section 3.2 up to an amount sufficient to pay such amounts (determined as of
such preceding Distribution Date) shall be deposited in the Special Payments
Account and distributed as a Special Payment)", (ii) amending the word "EIGHTH"
to read "NINTH", (iii) amending the word "NINTH" to read "TENTH" and (iv)
inserting after clause SEVENTH thereof a new clause EIGHTH reading as follows:
"EIGHTH, such amount as shall be required to pay in full Expected Distributions
to the holders of the Class D Certificates on such Distribution Date shall be
distributed to the Class D Trustee;".
(h) Section 3.3 of the Original Intercreditor Agreement is amended
by (i) deleting the word "and" appearing at the end of clause EIGHTH thereof,
(ii) replacing the period at the end of clause NINTH with the following: "; and"
and (iii) inserting at the end of such Section 3.3 a new clause TENTH reading as
follows: "TENTH, such amount remaining as shall be required to pay in full
Adjusted Expected Distributions on the Class D Certificates shall be distributed
to the Class D Trustee".
(i) Section 3.4(c) of the Original Intercreditor Agreement is
amended by changing the word "EIGHTH" appearing in the proviso therein to the
word "NINTH", changing the word "or" appearing in such proviso to a comma and
inserting the words "or "EIGHTH"" after the word ""SEVENTH"" appearing in such
proviso.
(j) Section 3.4 of the Original Intercreditor Agreement is amended
by adding a new subclause (d) reading as follows:
"(d) Notwithstanding the priority of payments specified in Sections
2.4(b)(i), 3.2 and 3.3, all payments received by the Subordination Agent under
any Owned Aircraft Indenture securing Equipment Notes of any Prior Series and to
be applied by the terms of such Owned Aircraft Indenture to the Series D
Equipment Notes issued in respect of any other Prior Series shall be promptly
distributed to the Class D Trustee. The terms "Equipment Notes", "Prior Series"
and "Series D Equipment Notes" as used in this Section 3.4(d) shall have the
respective meanings specified therefor in the Class D Note Purchase Agreement."
(k) Section 3.6(a) of the Original Intercreditor Agreement is
amended by adding the words "(other than a Regular Distribution Date with
respect to the Class D Certificates that is not a Special Distribution Date)"
after the words "any Distribution Date" appearing therein.
(l) Section 3.6(f) of the Original Intercreditor Agreement is
amended by adding the words "(other than a Regular Distribution Date with
respect to the Class D Certificates that is not a Special Distribution Date)"
after the words "each Distribution Date" appearing in each of clauses (i), (ii),
(iii), (iv) and (v) thereof.
(m) Section 6.1 of the Original Intercreditor Agreement is amended
by (i) replacing the word "and" appearing before the words "the Class C-2
Trustee" in the first sentence thereof with a comma and (ii) inserting the words
"and the Class D Trustee" after the words "the Class C-2 Trustee" in the first
sentence thereof.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 MISCELLANEOUS. The amendments to the Original
Intercreditor Agreement contained in Articles II and III hereof shall become
effective as of the date hereof, and from and after the date hereof, each
reference in the Intercreditor Agreement to "this Agreement", and each reference
in the Intercreditor Agreement or in any other Operative Agreement to the
"Intercreditor Agreement" or any like expression referring to the Intercreditor
Agreement, shall be deemed to refer to the Original Intercreditor Agreement as
amended by this Amendment No. 1. The Original Intercreditor Agreement, as
amended hereby, shall remain unchanged and in full force and effect. Each
Liquidity Provider, by its execution and delivery of this Amendment No. 1,
confirms that all of its obligations under the Intercreditor Agreement and the
Liquidity Facilities provided by such Liquidity Provider remain unchanged and in
full force and effect. Each party hereto agrees to execute and deliver all such
further agreements or documents, if any, as shall be necessary to give effect to
the provisions of this Amendment No. 1. This Amendment No. 1 may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument, and any of the parties hereto may execute this Amendment
No. 1 by signing any such counterpart. This Amendment No. 1 shall be governed
by, and construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written, and acknowledge that
this Amendment No. 1 has been made and delivered in the City of New York, and
this Amendment No. 1 has become effective only upon such execution and delivery.
CONTINENTAL AIRLINES, INC.
By
-------------------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Class A-1
Trustee, Class A-2 Trustee, Class B Trustee, Class
C-1 Trustee, Class C-2 Trustee and Class D Trustee
By
-------------------------------------------------------
Name:
Title:
LANDESBANK HESSEN-THURINGEN
GIROZENTRALE,
as Class A-1 Liquidity Provider, Class A-2
Liquidity Provider and Class B Liquidity Provider
By
-------------------------------------------------------
Name:
Title:
By
-------------------------------------------------------
Name:
Title:
MORGAN STANLEY CAPITAL SERVICES INC.
as Class C-1 Liquidity Provider and Class C-2
Provider
By
-------------------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity except as expressly set
forth herein but solely as Subordination Agent and
Trustee
By
-------------------------------------------------------
Name:
Title:
AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (2000-2)
AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (this "AMENDMENT NO. 1")
dated as of July 31, 2001, among CONTINENTAL AIRLINES, INC., a Delaware
corporation ("CONTINENTAL"); WILMINGTON TRUST COMPANY, a Delaware corporation,
not in its individual capacity but solely as Trustee under the Continental
Airlines Pass Through Trust 2000-2A-1-O (the "CLASS A-1 TRUSTEE"), as Trustee
under the Continental Airlines Pass Through Trust 2000-2A-2-O (the "CLASS A-2
TRUSTEE"), as Trustee under the Continental Airlines Pass Through Trust
2000-2B-O (the "CLASS B TRUSTEE"), as Trustee under the Continental Airlines
Pass Through Trust 2000-2C-O (the "CLASS C TRUSTEE") and as Trustee under the
Continental Airlines Pass Through Trust 2001-2D-O (the "CLASS D TRUSTEE");
LANDESBANK HESSEN-THURINGEN GIROZENTRALE, a public-law banking institution
organized under the laws of Germany, as Class A-1 Liquidity Provider, Class A-2
Liquidity Provider, Class B Liquidity Provider and Class C Liquidity Provider;
and WILMINGTON TRUST COMPANY, not in its individual capacity except as expressly
set forth in the Intercreditor Agreement referred to below, but solely as
Subordination Agent and trustee under the Intercreditor Agreement referred to
below (in such capacity, together with any duly appointed successor, the
"SUBORDINATION AGENT").
WHEREAS, Wilmington Trust Company, not in its individual capacity,
but solely as Class A-1 Trustee, Class A-2 Trustee, Class B Trustee and Class C
Trustee, Landesbank Hessen-Thuringen Girozentrale, as Class A-1 Liquidity
Provider, Class A-2 Liquidity Provider, Class B Liquidity Provider and Class C
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, have entered into the Intercreditor Agreement dated as of
November 28, 2000 (the "ORIGINAL INTERCREDITOR AGREEMENT", and as 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, on the date hereof, a Continental Airlines Pass Through
Trust 2001-2D-O will be created to issue pass through certificates designated as
"Series 2001-2D-O" (the "CLASS D CERTIFICATES") pursuant to a Pass Through Trust
Agreement dated as of September 25, 1997 between Continental and Wilmington
Trust Company, as supplemented by Supplement No. 2001-2D-O thereto dated as of
the date hereof;
WHEREAS, the Class D Trustee will purchase Series D Equipment Notes
issued by Continental under certain Owned Aircraft Indentures using a portion of
the proceeds from the issuance of the Class D Certificates;
WHEREAS, in connection with the issuance of such Series D Equipment
Notes to the Class D Trustee, the parties hereto wish to amend the Original
Intercreditor Agreement in accordance with Section 9.1(a) and 9.1(c) of the
Original Intercreditor Agreement.
WHEREAS, the Ratings Confirmation required under Section 4(a)(vi) of
the Note Purchase Agreement in order to issue such Series D Equipment Notes has
been obtained.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. Except as otherwise defined in this
Amendment No. 1, terms defined in Section 1.1 of the Original Intercreditor
Agreement are used herein as defined therein.
ARTICLE II
AMENDMENTS TO THE ORIGINAL INTERCREDITOR AGREEMENT PURSUANT TO
SECTION 9.1(a)
SECTION 2.1 CERTAIN DEFINITIONS. Pursuant to the clause (x)(ii) of
the first proviso in the first sentence of Section 9.1(a) of the Original
Intercreditor Agreement, Section 1.1 of the Original Intercreditor Agreement is
hereby amended as follows:
(a) the term "Class D Trust" is amended to read as follows: "CLASS D
TRUST" means (A)(i) prior to the Transfer, the Continental Airlines Pass Through
Trust 2001-2D-O created and administered pursuant to the Class D Trust Agreement
and (ii) after the Transfer, the Continental Airlines Pass Through Trust
2001-2D-S created and administered pursuant to the Class D Trust Agreement and
(B) after the Final Distribution has been made with respect to the Class D
Certificates, such other pass through trust that acquires Series D Equipment
Notes, if and when established in accordance with the provisions of Section
4(a)(vi) of the Class D Note Purchase Agreement and subject to the provisions of
Section 9.1(c) of the Intercreditor Agreement.
(b) the term "Class D Trust Agreement" is added in alphabetical
order reading as follows: "CLASS D TRUST AGREEMENT" means (A)(i) prior to the
Transfer, the Basic Agreement, as supplemented by the Supplement No. 2001-2D-O
thereto dated as of the Class D Closing Date, governing the creation and
administration of the Continental Airlines Pass Through Trust 2001-2D-O and the
issuance of the Class D Certificates, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms, and (ii)
after the Transfer, the Basic Agreement, as supplemented by the Supplement No.
2001-2D-S thereto, governing the creation and administration of the Continental
Airlines Pass Through Trust 2001-2D-S and the issuance of the Class D
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 D Certificates, such other
agreement executed by Continental establishing a Class D Trust in accordance
with the provisions of Section 4(a)(vi) of the Class D Note Purchase Agreement
and subject to the provisions of Section 9.1(c) of the Intercreditor Agreement.
ARTICLE III
AMENDMENTS TO THE ORIGINAL INTERCREDITOR AGREEMENT PURSUANT TO
SECTION 9.1(c)
SECTION 3.1. ADDITIONAL PARTY. Pursuant to Section 9.1(c) of the
Original Intercreditor Agreement, the Original Intercreditor Agreement is hereby
amended by adding the Class D Trustee 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 Continental and the Subordination Agent, the Class D
Trustee shall be a party to the Intercreditor Agreement as fully and with the
same force and effect as if the Class D Trustee had originally executed and
delivered a counterpart thereof (it being understood and agreed that the fifth
and seventh "WHEREAS" clauses in the preliminary statements to the Original
Intercreditor Agreement do not apply to the Class D Certificates).
SECTION 3.2. FURTHER AMENDMENTS. (a) Section 1.1 of the Original
Intercreditor Agreement is amended as follows:
(i) the term "Adjusted Expected Distributions" is amended (i) by
deleting the word "on" in clause (x) and adding in lieu thereof the following:
"calculated at the Stated Interest Rate on the Pool Balance of", (ii) by adding
the words "for such Certificates" after the words "the first Distribution Date"
in clause (y)(A)(x) thereof, in clause (y)(A)(y)(iii) thereof and in two
instances in clause (y)(B)(i) thereof, and (iii) by adding at the end of such
definition an additional sentence as follows: "For purposes of calculating
Adjusted Expected Distributions with respect to the Certificates of the Class D
Trust, the original aggregate face amount of the Certificates of such Trust
shall be deemed to be $37,260,754."
(ii) the term "Aggregate LTV Collateral Amount" is amended (i) by
inserting at the end of clause (A)(ii) before the words "multiplied by" the
following: "minus (iii) in the case of the Class D Certificates, the sum of the
applicable LTV Collateral Amounts for each Leased Aircraft," and (ii) by
replacing the word "and" appearing before the words "Class C Certificates" in
clause (B)(ii) thereof with a comma and inserting the words "and the Class D
Certificates" after the words "Class C Certificates".
(iii) the term "Certificate" is amended by replacing the word "or"
appearing before the words "a Class C Certificate" with a comma and adding the
words "or a Class D Certificate" after the words "a Class C Certificate".
(iv) the term "Class D Certificateholder" is added in alphabetical
order reading as follows: "CLASS D CERTIFICATEHOLDER" means, at any time, any
holder of one or more Class D Certificates.
(v) the term "Class D Closing Date" is added in alphabetical order
reading as follows: "CLASS D CLOSING DATE" means July 31, 2001.
(vi) the term "Class D Note Purchase Agreement" is added in
alphabetical order reading as follows: "CLASS D NOTE PURCHASE AGREEMENT" means
the Note Purchase Agreement, dated as of the Class D Closing Date, among
Continental, the Class D Trustee, the Escrow Agent, WTC, as Subordination Agent
and as subordination agent under certain other intercreditor agreements, and the
Paying Agent.
(vii) the "Class D Trustee" is added in alphabetical order reading
as follows: "CLASS D TRUSTEE" means WTC, not in its individual capacity except
as expressly set forth in the Class D Trust Agreement, but solely as trustee
under the Class D Trust Agreement together with any successor trustee appointed
pursuant thereto.
(viii) the term "Class D Underwriting Agreement" is added in
alphabetical order reading as follows: "CLASS D UNDERWRITING AGREEMENT" means
the Underwriting Agreement dated July 13, 2001 among Morgan Stanley & Co.
Incorporated, Credit Suisse First Boston Corporation, the Depositary and
Continental, relating to the purchase of the Class D Certificates by Morgan
Stanley & Co. Incorporated and Credit Suisse First Boston Corporation, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
(ix) the term "Deposit Agreement" is amended to read as follows:
"DEPOSIT AGREEMENT" shall mean (i) with respect to the Class A-1 Certificates,
Class A-2 Certificates, Class B Certificates and Class C Certificates, the
Deposit Agreement pertaining to such Class of Certificates dated as of the
Closing Date between the Escrow Agent and the Depositary, and (ii) with respect
to the Class D Certificates, the Deposit Agreement designated "(2000-2 Class D)"
pertaining to such Class dated as of the Class D Closing Date between the Escrow
Agent and the Depositary, in each case, as the same may be amended, modified or
supplemented from time to time in accordance with the terms thereof.
(x) the term "Equipment Notes" is amended by replacing the word
"and" appearing before the words "the Series C Equipment Notes" with a comma and
inserting the words "and the Series D Equipment Notes" after the words "the
Series C Equipment Notes".
(xi) the term "Escrow Agent" is amended to read as follows: "ESCROW
AGENT" means Wells Fargo Bank Northwest, N.A. (formerly known as First Security
Bank, National Association), as escrow agent under each Escrow and Paying Agent
Agreement, together with its successors in such capacity.
(xii) the term "Escrow and Paying Agent Agreement" is amended to
read as follows: "ESCROW AND PAYING AGENT AGREEMENT" shall mean (i) with respect
to the Class A-1 Certificates, Class A-2 Certificates, Class B Certificates and
Class C Certificates, the Escrow and Paying Agent Agreement pertaining to such
Class of Certificates dated as of the Closing Date between the Escrow Agent, the
Underwriters, the Trustee for such Class and the Paying Agent, and (ii) with
respect to the Class D Certificates, the Escrow and Paying Agent Agreement
designated "(2000-2 Class D)" pertaining to such Class dated as of the Class D
Closing Date between the Escrow Agent, Morgan Stanley & Co. Incorporated, Credit
Suisse First Boston Corporation, the Class D Trustee and the Paying Agent, in
each case, as the same may be amended, modified or supplemented from time to
time in accordance with the terms thereof.
(xiii) the term "Expected Distributions" is amended (i) by deleting
the word "on" in clause (x) and adding in lieu thereof the following:
"calculated at the Stated Interest Rate on the Pool Balance of", (ii) by adding
the words "for such Certificates" after the words "the first Distribution Date"
in clause (y)(A) thereof and in clause (y)(B)(ii) thereof, and (iii) by adding
at the end of such definition an additional sentence as follows: "For purposes
of calculating Expected Distributions with respect to the Certificates of the
Class D Trust, the original aggregate face amount of the Certificates of such
Trust shall be deemed to be $37,260,754."
(xiv) the term "Final Distributions" is amended by deleting the word
"on" in clause (x) and adding in lieu thereof the following: "calculated at the
Stated Interest Rate on the Pool Balance of".
(xv) the term "Final Legal Distribution Date" is amended by deleting
the word "and" appearing before the numeral "(iv)" and adding at the end of such
definition the words ", and (v) with respect to the Class D Certificates,
December 1, 2006."
(xvi) the term "Financing Agreement" is amended by replacing the
word "and" with a comma and adding at the end of such definition the words "and
the Class D Note Purchase Agreement".
(xvii) the term "LTV Collateral Amount" is amended by deleting the
words "secured by" appearing in clause (ii) therein and adding in lieu thereof
the following: "issued in respect of".
(xviii) the term "LTV Ratio" is amended by adding in a fifth column
in the table appearing in such definition the following:
Class D
CERTIFICATES
-------------
68.0%
(xix) the term "Operative Agreements" is amended by inserting the
words "the Class D Underwriting Agreement," after the words "the Underwriting
Agreement".
(xx) the term "Pool Balance" is amended to read as follows: "POOL
BALANCE" means, with respect to each Trust or the Certificates issued by any
Trust, as of any date, (i) the original aggregate face amount of the
Certificates of such Trust (or, in the case of the Class D Trust or the Class D
Certificates, $37,260,754) LESS (ii) the aggregate amount of all payments made
in respect of the Certificates of such Trust under this Agreement or in respect
of Deposits relating to such Trust other than payments made under this Agreement
in respect of interest or premium thereon or reimbursement of any costs and
expenses in connection therewith. The Pool Balance for each Trust or for the
Certificates issued by any Trust as of any Distribution Date shall be computed
after giving effect to any special distribution with respect to unused Deposits,
payment of principal of the Equipment Notes or payment with respect to other
Trust Property held in such Trust and the distribution thereof pursuant to this
Agreement (except in the case of such unused Deposits) to be made on that date.
(xxi) the term "PTC Event of Default" is amended by adding after the
words "interest due on such Certificates" appearing in clause (ii) thereof the
following: "(calculated at the Stated Interest Rate on the Pool Balance
thereof)".
(xxii) the term "Regular Distribution Dates" is amended to read as
follows: "REGULAR DISTRIBUTION DATES" means (i) with respect to the Liquidity
Facilities and the Class A-1 Certificates, Class A-2 Certificates, Class B
Certificates and Class C Certificates, each April 2 and October 2, commencing on
April 2, 2001, and (ii) with respect to the Class D Certificates, each June 1
and December 1, commencing on December 1, 2001; PROVIDED, HOWEVER, that, if any
such day shall not be a Business Day, the related distribution shall be made on
the next succeeding Business Day without additional interest.
(xxiii) the term "Series D Equipment Notes" is amended to read as
follows: "SERIES D EQUIPMENT NOTES" means (A) the 7.568% Series D Equipment
Notes issued pursuant to any Owned Aircraft Indenture by Continental and
authenticated by the Loan Trustee thereunder, and any such Equipment Notes
issued in exchange therefore or replacement thereof pursuant to the terms of
such Owned Aircraft Indenture, and (B) after the Final Distribution has been
made with respect to the Class D Certificates, equipment notes, if any, issued
pursuant to any Indenture by the related Owner Trustee or Continental, as the
case may be, in accordance with Section 4(a)(vi) of the Class D Note Purchase
Agreement and subject to the provisions of Section 9.1(c) of the Intercreditor
Agreement and authenticated by the Loan Trustee under such Indenture, and
designated as "Series D" thereunder, and any such equipment notes issued in
exchange therefor or replacement thereof pursuant to the terms of such
Indenture.
(xxiv) the term "Stated Interest Rate" is amended by replacing the
word "and" appearing before the numeral "(iv)" with a comma and adding at the
end of such definition the following: "and (v) with respect to the Class D
Certificates, 7.568% per annum".
(xxv) the term "Successor Trusts" is amended by replacing the word
"and" appearing therein with a comma and adding at the end of such definition
the following: "and Continental Airlines Pass Through Trust 2001-2D-S".
(xxvi) the term "Trust" is amended by replacing the word "or"
appearing before the words "the Class C Trust" with a comma and adding at the
end of such definition the words "or the Class D Trust".
(xxvii) the term "Trust Agreement" is amended by replacing the word
"or" appearing before the words "the Class C Trust Agreement" with a comma and
adding at the end of such definition the words "or the Class D Trust Agreement".
(xxviii) the term "Trustee" is amended by replacing the word "or"
appearing before the words "the Class C Trustee" with a comma and adding at the
end of such definition the words "or the Class D Trustee".
(b) Section 2.4(b)(i) of the Original Intercreditor Agreement is
amended by (i) replacing the words "Equipment Notes" appearing twice in
subclause (B)(y) of clause FIRST thereof with the words "the Series A-1
Equipment Notes, the Series A-2 Equipment Notes, the Series B Equipment Notes
and the Series C Equipment Notes", (ii) deleting the word "and" appearing at the
end of clause SEVENTH thereof, (iii) amending the word "EIGHTH" to read "NINTH",
(iv) inserting after clause SEVENTH thereof a new clause EIGHTH reading as
follows: "EIGHTH, such amount as shall be required to pay in full Expected
Distributions to the holders of the Class D Certificates on such Special
Distribution Date shall be distributed to the Class D Trustee; and" and (v)
deleting the word "on" appearing in the last sentence before the words "such
Certificates together with" and adding in lieu thereof the following:
"calculated at the Stated Interest Rate on the Pool Balance of".
(c) Section 2.6(b) of the Original Intercreditor Agreement is
amended by deleting the word "and" appearing before the letter "(y)" in the
first sentence thereof and inserting after the words "the Class C Trustee" at
the end of the first sentence thereof the following: "; and (z) upon payment of
Final Distributions to the holders of Class C Certificates, the Class D
Trustee".
(d) Section 3.1(a) of the Original Intercreditor Agreement is
amended by changing the word "EIGHTH" appearing in clause (v) to "NINTH",
changing the numeral "(iv)" to the numeral "(v)" and the numeral "(v)" to the
numeral "(vi)" and inserting after clause (iii) thereof a new clause (iv)
reading as follows: "(iv) With respect to the Class D Certificates, the Class D
Trustee shall separately set forth the amounts to be paid in accordance with
clause "EIGHTH" of Section 3.2 or 2.4(b), as the case may be, hereof;".
(e) Section 3.1(b) of the Original Intercreditor Agreement is
amended by changing the numeral "(iv)" to the numeral "(v)" and the numeral
"(v)" to the numeral "(vi)" and inserting after clause (iii) thereof a new
clause (iv) reading as follows: "(iv) With respect to the Class D Certificates,
the Class D Trustee shall separately set forth the amounts to be paid in
accordance with clauses "FIRST" (to reimburse payments made by such Trustee or
the Class D Certificateholders, as the case may be, pursuant to subclause (ii)
or (iii) of clause "FIRST" of Section 3.3 hereof, respectively) and "TENTH" of
Section 3.3 hereof;"
(f) Section 3.1(f) of the Original Intercreditor Agreement is
amended to change the word "NINTH" appearing twice therein to the word "TENTH".
(g) Section 3.2 of the Original Intercreditor Agreement is amended
by (i) inserting after the words "Section 3.1(a) hereof" but before the colon
appearing in the first sentence thereof the following: "(PROVIDED, that (x) in
the case of each Regular Distribution Date for the Class D Certificates that is
not a Special Distribution Date, amounts shall be payable under clauses FIFTH
through SEVENTH of this Section 3.2 if and only if on the immediately preceding
Distribution Date, any amounts payable under such clauses FIFTH through SEVENTH
were not distributed in full due to the Subordination Agent not having
sufficient funds (after the application of Section 3.6(b)) on such Distribution
Date, and if any such amounts are so payable, such amount as the Subordination
Agent shall have available for distribution after giving effect to clauses FIRST
through FOURTH of this Section 3.2 up to an amount sufficient to pay such
amounts (determined as of such preceding Distribution Date) shall be deposited
in the Special Payments Account and distributed as a Special Payment, and (y) in
the case of each Regular Distribution Date (other than a Regular Distribution
Date for the Class D Certificates) that is not a Special Distribution Date,
amounts shall be payable under clause EIGHTH of this Section 3.2 if and only if
on the immediately preceding Distribution Date, any amounts payable under such
clause EIGHTH were not distributed in full due to the Subordination Agent not
having sufficient funds on such Distribution Date, and if any such amounts are
so payable, such amount as the Subordination Agent shall have available for
distribution after giving effect to clauses FIRST through SEVENTH of this
Section 3.2 up to an amount sufficient to pay such amounts (determined as of
such preceding Distribution Date) shall be deposited in the Special Payments
Account and distributed as a Special Payment)", (ii) amending the word "EIGHTH"
to read "NINTH", (iii) amending the word "NINTH" to read "TENTH" and (iv)
inserting after clause SEVENTH thereof a new clause EIGHTH reading as follows:
"EIGHTH, such amount as shall be required to pay in full Expected Distributions
to the holders of the Class D Certificates on such Distribution Date shall be
distributed to the Class D Trustee;".
(h) Section 3.3 of the Original Intercreditor Agreement is amended
by (i) deleting the word "and" appearing at the end of clause EIGHTH thereof,
(ii) replacing the period at the end of clause NINTH with the following: "; and"
and (iii) inserting at the end of such Section 3.3 a new clause TENTH reading as
follows: "TENTH, such amount remaining as shall be required to pay in full
Adjusted Expected Distributions on the Class D Certificates shall be distributed
to the Class D Trustee".
(i) Section 3.4(c) of the Original Intercreditor Agreement is
amended by changing the word "EIGHTH" appearing in the proviso therein to the
word "NINTH", changing the word "or" appearing in such proviso to a comma and
inserting the words "or "EIGHTH"" after the word ""SEVENTH"" appearing in such
proviso.
(j) Section 3.4 of the Original Intercreditor Agreement is amended
by adding a new subclause (d) reading as follows:
"(d) Notwithstanding the priority of payments specified in Sections
2.4(b)(i), 3.2 and 3.3, all payments received by the Subordination Agent under
any Owned Aircraft Indenture securing Equipment Notes of any Prior Series and to
be applied by the terms of such Owned Aircraft Indenture to the Series D
Equipment Notes issued in respect of any other Prior Series shall be promptly
distributed to the Class D Trustee. The terms "Equipment Notes", "Prior Series"
and "Series D Equipment Notes" as used in this Section 3.4(d) shall have the
respective meanings specified therefor in the Class D Note Purchase Agreement."
(k) Section 3.6(a) of the Original Intercreditor Agreement is
amended by adding the words "(other than a Regular Distribution Date with
respect to the Class D Certificates that is not a Special Distribution Date)"
after the words "any Distribution Date" appearing therein.
(l) Section 3.6(f) of the Original Intercreditor Agreement is
amended by adding the words "(other than a Regular Distribution Date with
respect to the Class D Certificates that is not a Special Distribution Date)"
after the words "each Distribution Date" appearing in each of clauses (i), (ii),
(iii) and (iv) thereof.
(m) Section 6.1 of the Original Intercreditor Agreement is amended
by (i) replacing the word "and" appearing before the words "the Class C Trustee"
in the first sentence thereof with a comma and (ii) inserting the words "and the
Class D Trustee" after the words "the Class C Trustee" in the first sentence
thereof.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 MISCELLANEOUS. The amendments to the Original
Intercreditor Agreement contained in Articles II and III hereof shall become
effective as of the date hereof, and from and after the date hereof, each
reference in the Intercreditor Agreement to "this Agreement", and each reference
in the Intercreditor Agreement or in any other Operative Agreement to the
"Intercreditor Agreement" or any like expression referring to the Intercreditor
Agreement, shall be deemed to refer to the Original Intercreditor Agreement as
amended by this Amendment No. 1. The Original Intercreditor Agreement, as
amended hereby, shall remain unchanged and in full force and effect. Each
Liquidity Provider, by its execution and delivery of this Amendment No. 1,
confirms that all of its obligations under the Intercreditor Agreement and the
Liquidity Facilities provided by such Liquidity Provider remain unchanged and in
full force and effect. Each party hereto agrees to execute and deliver all such
further agreements or documents, if any, as shall be necessary to give effect to
the provisions of this Amendment No. 1. This Amendment No. 1 may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument, and any of the parties hereto may execute this Amendment
No. 1 by signing any such counterpart. This Amendment No. 1 shall be governed
by, and construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written, and acknowledge that
this Amendment No. 1 has been made and delivered in the City of New York, and
this Amendment No. 1 has become effective only upon such execution and delivery.
CONTINENTAL AIRLINES, INC.
By
----------------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Class A-1
Trustee, Class A-2 Trustee, Class B Trustee, Class
C Trustee and Class D Trustee
By
----------------------------------------------------
Name:
Title:
LANDESBANK HESSEN-THURINGEN
GIROZENTRALE,
as Class A-1 Liquidity Provider, Class A-2
Liquidity Provider, Class B Liquidity Provider and
Class C Liquidity Provider
By
----------------------------------------------------
Name:
Title:
By
----------------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity except as expressly set
forth herein but solely as Subordination Agent and
Trustee
By
----------------------------------------------------
Name:
Title:
DEPOSIT AGREEMENT
Dated as of July 31, 2001
between
WELLS FARGO BANK NORTHWEST, N.A.
as Escrow Agent
and
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH
as Depositary
TABLE OF CONTENTS
Page
SECTION 1.1 Acceptance of Depositary..........................................2
SECTION 1.2 Establishment of Accounts.........................................2
SECTION 2.1 Deposits..........................................................2
SECTION 2.2 Interest..........................................................2
SECTION 2.3 Withdrawals.......................................................3
SECTION 2.4 Other Accounts....................................................3
SECTION 3. Termination........................................................4
SECTION 4. Payments...........................................................4
SECTION 5. Representation and Warranties......................................4
SECTION 6. Transfer...........................................................5
SECTION 7. Amendment, Etc.....................................................6
SECTION 8. Notices............................................................6
SECTION 9. Obligations Unconditional..........................................6
SECTION 10. Entire Agreement..................................................6
SECTION 11. Governing Law.....................................................6
SECTION 12. Waiver of Jury Trial Right........................................7
SECTION 13. Counterparts......................................................7
SECTION 14. Head Office Obligation............................................7
DEPOSIT AGREEMENT dated as of July 31, 2001 (as amended, modified or
supplemented from time to time, this "AGREEMENT") between WELLS FARGO BANK
NORTHWEST, N.A, a national banking association, as Escrow Agent under the Escrow
and Paying Agent Agreement referred to below (in such capacity, together with
its successors in such capacity, the "ESCROW AGENT"), and CREDIT SUISSE FIRST
BOSTON, a banking institution organized under the laws of Switzerland, acting
through its New York branch, as depositary bank (the "DEPOSITARY").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, Continental Airlines, Inc. ("CONTINENTAL") and Wilmington
Trust Company, not in its individual capacity except as otherwise expressly
provided therein, but solely as trustee (in such capacity, together with its
successors in such capacity, the "PASS THROUGH TRUSTEE") have entered into a
Trust Supplement, dated as of July 31, 2001, to the Pass Through Trust Agreement
dated as of September 25, 1997 (together, as amended, modified or supplemented
from time to time in accordance with the terms thereof, the "PASS THROUGH TRUST
AGREEMENT") relating to Continental Airlines Pass Through Trust 2001-2D-O
pursuant to which the Continental Airlines Pass Through Trust, Series 2001-2D-O
Certificates referred to therein (the "CERTIFICATES") are being issued (the date
of such issuance, the "ISSUANCE DATE");
WHEREAS, Continental and Morgan Stanley & Co. Incorporated and
Credit Suisse First Boston Corporation (the "UNDERWRITERS" and, together with
its transferees and assigns as registered owners of the Certificates, the
"INVESTORS") have entered into an Underwriting Agreement dated as of July 13,
2001 pursuant to which the Pass Through Trustee will issue and sell the
Certificates to the Underwriters;
WHEREAS, Continental, the Pass Through Trustee and certain other
persons concurrently herewith are entering into a Note Purchase Agreement, dated
as of the date hereof (the "NOTE PURCHASE AGREEMENT"), pursuant to which the
Pass Through Trustee has agreed to acquire from time to time on or prior to the
Delivery Period Termination Date (as defined in the Note Purchase Agreement)
equipment notes (the "EQUIPMENT NOTES") issued to finance the acquisition of
aircraft by Continental, as lessee or as owner, utilizing a portion of the
proceeds from the sale of the Certificates (the "NET PROCEEDS");
WHEREAS, the Escrow Agent, the Underwriters, the Pass Through
Trustee and Wilmington Trust Company, as paying agent for the Escrow Agent (in
such capacity, together with its successors in such capacity, the "PAYING
AGENT") concurrently herewith are entering into an Escrow and Paying Agent
Agreement, dated as of the date hereof (as amended, modified or supplemented
from time to time in accordance with the terms thereof, the "ESCROW AND PAYING
AGENT AGREEMENT"); and
WHEREAS, the Underwriters and the Pass Through Trustee intend that
the Net Proceeds (excluding any amount used to purchase Equipment Notes on the
Issuance Date) be held in escrow by the Escrow Agent on behalf of the Investors
pursuant to the Escrow and Paying Agent Agreement, subject to withdrawal upon
request of and proper certification by the Pass Through Trustee for the purpose
of purchasing Equipment Notes, and that pending such withdrawal the Net Proceeds
be deposited by the Escrow Agent with the Depositary pursuant to this Agreement,
which provides for the Depositary to pay interest for distribution to the
Investors and to establish accounts from which the Escrow Agent shall make
withdrawals upon request of and proper certification by the Pass Through
Trustee.
NOW, THEREFORE, in consideration of the obligations contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1.1 ACCEPTANCE OF DEPOSITARY. The Depositary hereby agrees
to act as depositary bank as provided herein and in connection therewith to
accept all amounts to be delivered to or held by the Depositary pursuant to the
terms of this Agreement. The Depositary further agrees to hold, maintain and
safeguard the Deposits and the Accounts (as defined below) during the term of
this Agreement in accordance with the provisions of this Agreement. The Escrow
Agent shall not have any right to withdraw, assign or otherwise transfer moneys
held in the Accounts except as permitted by this Agreement.
SECTION 1.2 ESTABLISHMENT OF ACCOUNTS. The Escrow Agent hereby
instructs the Depositary, and the Depositary agrees, to establish the separate
deposit accounts listed on Schedule I hereto and to establish such additional
separate deposit accounts as may be required in connection with the deposits
contemplated by Section 2.4 hereof (each, an "ACCOUNT" and collectively, the
"ACCOUNTS"), each in the name of the Escrow Agent and all on the terms and
conditions set forth in this Agreement.
SECTION 2.1 DEPOSITS. The Escrow Agent shall direct the Underwriters
to deposit with the Depositary on the date of this Agreement (the "DEPOSIT
DATE") in Federal (same day) funds by wire transfer to: Credit Suisse First
Boston, New York branch, Reference: Continental 2001-2D, and the Depositary
shall accept from the Underwriters, on behalf of the Escrow Agent, the sum of
US$5,995,476 (or such lesser amount equal to the Net Proceeds less amounts used
to purchase Equipment Notes on the Issuance Date). Upon acceptance of such sum,
the Depositary shall (i) establish each of the deposits specified in Schedule I
hereto maturing on May 31, 2002 (including any deposit made pursuant to Section
2.4 hereof, individually, a "DEPOSIT" and, collectively, the "DEPOSITS") and
(ii) credit each Deposit to the related Account as set forth therein. No amount
shall be deposited in any Account other than the related Deposit.
SECTION 2.2 INTEREST. Each Deposit shall bear interest from and
including the date of deposit to but excluding the date of withdrawal at the
rate of 7.568% per annum (computed on the basis of a year of twelve 30-day
months) payable to the Paying Agent on behalf of the Escrow Agent semi-annually
in arrears on each June 1 and December 1 commencing on December 1, 2001 (each,
an "INTEREST PAYMENT DATE"), and on the date of the Final Withdrawal (as defined
below), all in accordance with the terms of this Agreement (whether or not any
such Deposit is withdrawn on an Interest Payment Date). Interest accrued on any
Deposit that is withdrawn pursuant to a Notice of Purchase Withdrawal (as
defined below) shall be paid on the next Interest Payment Date, notwithstanding
any intervening Final Withdrawal (as such term is defined below).
SECTION 2.3 WITHDRAWALS. (a) On and after the date seven days after
the establishment of any Deposit, the Escrow Agent may, by providing at least
one Business Day's prior notice of withdrawal to the Depositary in the form of
Exhibit A hereto (a "NOTICE OF PURCHASE WITHDRAWAL"), withdraw not less than the
entire balance of such Deposit, except that at any time prior to the actual
withdrawal of such Deposit, the Escrow Agent or the Pass Through Trustee may, by
notice to the Depositary, cancel such withdrawal (including on the scheduled
date therefor), and thereafter such Deposit shall continue to be maintained by
the Depositary in accordance with the original terms thereof. Following such
withdrawal the balance in the related Account shall be zero and the Depositary
shall close such Account. As used herein, "BUSINESS DAY" means any day, other
than a Saturday, Sunday or other day on which commercial banks are authorized or
required by law to close in New York, New York, Houston, Texas, Wilmington,
Delaware or Salt Lake City, Utah. The Depositary reserves the right, upon at
least 14 days' prior written notice to Continental, the Escrow Agent and the
Pass Through Trustee, to require seven days' notice for any withdrawal.
(b) The Escrow Agent may, by providing at least 15 days' prior
notice of withdrawal to the Depositary in the form of Exhibit B hereto (a
"NOTICE OF FINAL WITHDRAWAL"), withdraw the entire amount of all of the
remaining Deposits together with the payment by the Depositary of all accrued
and unpaid interest on such Deposits to but excluding the specified date of
withdrawal (a "FINAL WITHDRAWAL"), on such date as shall be specified in such
Notice of Final Withdrawal. If a Notice of Final Withdrawal has not been given
to the Depositary on or before May 8, 2002 (provided that, if a labor strike
occurs or continues at The Boeing Company after November 28, 2000 and prior to
May 1, 2002 (a "LABOR STRIKE"), such date shall be extended by adding thereto
the number of days that such strike continued in effect after November 28, 2000
(the "ADDITIONAL DAYS")) and there are unwithdrawn Deposits on such date, the
Depositary shall pay the amount of the Final Withdrawal to the Paying Agent on
May 31, 2002 (provided that if a Labor Strike occurs or continues, such date
shall be extended by the Additional Days).
(c) If the Depositary receives a duly completed Notice of Purchase
Withdrawal or Notice of Final Withdrawal complying with the provisions of this
Agreement, it shall make the payments specified therein in accordance with the
provisions of this Agreement.
SECTION 2.4 OTHER ACCOUNTS. On the date of withdrawal of any Deposit
(other than the date of the Final Withdrawal), the Escrow Agent, or the Pass
Through Trustee on behalf of the Escrow Agent, shall re-deposit with the
Depositary any portion thereof not used to acquire Equipment Notes and the
Depositary shall accept the same for deposit hereunder. On the date the
Certificates are issued, the Escrow Agent, or the Underwriters, on behalf of the
Escrow Agent, shall be entitled to deposit with the Depositary any portion of
the Net Proceeds not theretofore deposited hereunder and not used to purchase
Equipment Notes on the Issuance Date (the "UNUSED PROCEEDS") and the Depositary
shall accept the Unused Proceeds for deposit hereunder. Any sums so received for
deposit shall be established as a new Deposit and credited to a new Account, all
as more fully provided in Section 2.1 hereof, and thereafter the provisions of
this Agreement shall apply thereto as fully and with the same force and effect
as if such Deposit had been established on the Deposit Date except that (i) such
Deposit may not be withdrawn prior to the date seven days after the
establishment thereof and (ii) such Deposit shall mature on May 31, 2002
(provided that if a Labor Strike occurs or continues, such date shall be
extended by the Additional Days) and bear interest as provided in Section 2.2.
The Depositary shall promptly give notice to the Escrow Agent of receipt of each
such re-deposit and the account number assigned thereto.
SECTION 3. TERMINATION. This Agreement shall terminate on the fifth
Business Day after the later of the date on which (i) all of the Deposits shall
have been withdrawn and paid as provided herein without any re-deposit and (ii)
all accrued and unpaid interest on the Deposits shall have been paid as provided
herein, but in no event prior to the date on which the Depositary shall have
performed in full its obligations hereunder.
SECTION 4. PAYMENTS. All payments (including, without limitation,
those payments made in respect of Taxes (as defined and provided for below))
made by the Depositary hereunder shall be paid in United States Dollars and
immediately available funds by wire transfer (i) in the case of accrued interest
on the Deposits payable under Section 2.2 hereof or any Final Withdrawal,
directly to the Paying Agent at Wilmington Trust Company, Wilmington, DE, ABA#
031100092, Account No. 55670-0, Attention: Monica Henry, Telephone No.: (302)
651-8813, Reference: Continental Airlines PTT, Series 2001-2D, or to such other
account as the Paying Agent may direct from time to time in writing to the
Depositary and the Escrow Agent and (ii) in the case of any withdrawal of one or
more Deposits pursuant to a Notice of Purchase Withdrawal, directly to or as
directed by the Pass Through Trustee as specified and in the manner provided in
such Notice of Purchase Withdrawal. The Depositary hereby waives any and all
rights of set-off, combination of accounts, right of retention or similar right
(whether arising under applicable law, contract or otherwise) it may have
against the Deposits howsoever arising. All payments on or in respect of each
Deposit shall be made free and clear of and without reduction for or on account
of any and all taxes, levies or other impositions or charges (collectively,
"TAXES"). However, if the Depositary or the Paying Agent (pursuant to Section
2.04 of the Escrow and Paying Agent Agreement) shall be required by law to
deduct or withhold any Taxes from or in respect of any sum payable hereunder,
the Depositary shall (i) make such deductions or withholding, (ii) pay the full
amount deducted or withheld (including in respect of such additional amounts) to
the competent taxation authority and (iii) if the Taxes required to be deducted
or withheld are imposed by Switzerland or any political subdivision thereof, pay
such additional amounts as may be necessary in order that the actual amount
received by the designated recipient of such sum under this Agreement or the
Escrow and Paying Agent Agreement after such deduction or withholding equals the
sum it would have received had no such deduction or withholding been required.
If the date on which any payment due on any Deposit would otherwise fall on a
day which is not a Business Day, such payment shall be made on the next
succeeding Business Day, and no additional interest shall accrue in respect of
such extension.
SECTION 5. REPRESENTATION AND WARRANTIES. The Depositary hereby
represents and warrants to Continental, the Escrow Agent, the Pass Through
Trustee and the Paying Agent that:
(a) it is a bank duly organized and validly existing in good
standing under the laws of its jurisdiction of organization and is duly
qualified to conduct banking business in the State of New York through its
New York branch;
(b) it has full power, authority and legal right to conduct its
business and operations as currently conducted and to enter into and
perform its obligations under this Agreement;
(c) the execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action on the part of
it and do not require any stockholder approval, or approval or consent of
any trustee or holder of any indebtedness or obligations of it, and such
document has been duly executed and delivered by it and constitutes its
legal, valid and binding obligations enforceable against it in accordance
with the terms hereof;
(d) no authorization, consent or approval of or other action
by, and no notice to or filing with, any United States federal or state
governmental authority or regulatory body is required for the execution,
delivery or performance by it of this Agreement;
(e) neither the execution, delivery or performance by it of
this Agreement, nor compliance with the terms and provisions hereof,
conflicts or will conflict with or results or will result in a breach or
violation of any of the terms, conditions or provisions of, or will require
any consent or approval under, any law, governmental rule or regulation or
the charter documents, as amended, or bylaws, as amended, of it or any
similar instrument binding on it or any order, writ, injunction or decree
of any court or governmental authority against it or by which it or any of
its properties is bound or any indenture, mortgage or contract or other
agreement or instrument to which it is a party or by which it or any of its
properties is bound, or constitutes or will constitute a default thereunder
or results or will result in the imposition of any lien upon any of its
properties; and
(f) there are no pending or, to its knowledge, threatened
actions, suits, investigations or proceedings (whether or not purportedly
on behalf of it) against or affecting it or any of its property before or
by any court or administrative agency which, if adversely determined, (i)
would adversely affect the ability of it to perform its obligations under
this Agreement or (ii) would call into question or challenge the validity
of this Agreement or the enforceability hereof in accordance with the terms
hereof, nor is the Depositary in default with respect to any order of any
court, governmental authority, arbitration board or administrative agency
so as to adversely affect its ability to perform its obligations under this
Agreement.
SECTION 6. TRANSFER. Neither party hereto shall be entitled to
assign or otherwise transfer this Agreement (or any interest herein) other than
(in the case of the Escrow Agent) to a successor escrow agent under the Escrow
and Paying Agent Agreement, and any purported assignment in violation thereof
shall be void. This Agreement shall be binding upon the parties hereto and their
respective successors and (in the case of the Escrow Agent) permitted assigns.
Upon the occurrence of the Transfer (as defined below) contemplated by the
Assignment and Assumption Agreement (as defined below), the Pass Through Trustee
shall (without further act) be deemed to have transferred all of its right,
title and interest in and to this Agreement to the trustee of the Successor
Trust (as defined below) and, thereafter, the trustee of the Successor Trust
shall be deemed to be the "Pass Through Trustee" hereunder with the rights of
the "Pass Through Trustee" hereunder, and each reference herein to "Continental
Airlines Pass Through Trust 2001-2D-O" shall be deemed to be a reference to
"Continental Airlines Pass Through Trust 2001-2D-S". The Escrow Agent and the
Depositary hereby acknowledge and consent to the Transfer contemplated by the
Assignment and Assumption Agreement. For the purposes of this Section 6,
"TRANSFER" means the transfer contemplated by the Assignment and Assumption
Agreement; "ASSIGNMENT AND ASSUMPTION AGREEMENT" means the Assignment and
Assumption Agreement to be entered into between the Pass Through Trustee and the
trustee of the Successor Trust, substantially in the form of Exhibit C to the
Pass Through Trust Agreement; and "SUCCESSOR TRUST" means the Continental
Airlines Pass Through Trust 2001-2D-S.
SECTION 7. AMENDMENT, ETC. This Agreement may not be amended, waived
or otherwise modified except by an instrument in writing signed by the party
against whom the amendment, waiver or other modification is sought to be
enforced and by the Pass Through Trustee.
SECTION 8. NOTICES. Unless otherwise expressly provided herein, any
notice or other communication under this Agreement shall be in writing
(including by facsimile) and shall be deemed to be given and effective upon
receipt thereof. All notices shall be sent to (x) in the case of the Depositary,
Credit Suisse First Boston, 11 Madison Avenue, New York, New York 10010,
Attention: Robert Finney and Mark Verbitsky (Telecopier: (212) 325-8319) or (y)
in the case of the Escrow Agent, Wells Fargo Bank Northwest, N.A., 79 South Main
Street, Third Floor, Salt Lake City, UT 84111, Attention: Corporate Trust
Services (Telecopier: (801) 246-5053), in each case, with a copy to the Pass
Through Trustee, Wilmington Trust Company, 1100 North Market Street, Wilmington,
DE 19890, Attention: Corporate Trust Administration (Telecopier: (302) 651-8882)
and to Continental, Continental Airlines, Inc., 1600 Smith Street, Dept. HQS-FN,
Houston, TX 77002, Attention: Treasurer (Telecopier: (713) 324-2447) (or at such
other address as any such party may specify from time to time in a written
notice to the parties hereto). On or prior to the execution of this Agreement,
the Escrow Agent has delivered to the Depositary a certificate containing
specimen signatures of the representatives of the Escrow Agent who are
authorized to give notices and instructions with respect to this Agreement. The
Depositary may conclusively rely on such certificate until the Depositary
receives written notice from the Escrow Agent to the contrary.
SECTION 9. OBLIGATIONS UNCONDITIONAL. The Depositary hereby
acknowledges and agrees that its obligation to repay each Deposit together with
interest thereon as provided herein is absolute, irrevocable and unconditional
and constitutes a full recourse obligation of the Depositary enforceable against
it to the full extent of all of its assets and properties.
SECTION 10. ENTIRE AGREEMENT. This Agreement (including all
attachments hereto) sets forth all of the promises, covenants, agreements,
conditions and understandings between the Depositary and the Escrow Agent with
respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements and undertakings, inducements or conditions, express
or implied, oral or written.
SECTION 11. GOVERNING LAW. This Agreement, and the rights and
obligations of the Depositary and the Escrow Agent with respect to the Deposits,
shall be governed by, and construed in accordance with, the laws of the State of
New York and subject to the provisions of Regulation D of the Board of Governors
of the Federal Reserve System (or any successor), as the same may be modified
and supplemented and in effect from time to time.
SECTION 12. WAIVER OF JURY TRIAL RIGHT. EACH OF THE DEPOSITARY AND
THE ESCROW AGENT ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS
RIGHT TO A TRIAL BY JURY.
SECTION 13. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute one instrument.
SECTION 14. HEAD OFFICE OBLIGATION. Credit Suisse First Boston
hereby agrees that the obligations of the Depositary hereunder are also the
obligations of Credit Suisse First Boston's Head Office in Zurich, Switzerland.
Accordingly, any beneficiary of this Agreement will be able to proceed directly
against Credit Suisse First Boston's Head Office in Zurich, Switzerland if
Credit Suisse First Boston's New York branch defaults in its obligation to such
beneficiary under this Agreement.
IN WITNESS WHEREOF, the Escrow Agent and the Depositary have caused
this Deposit Agreement to be duly executed as of the day and year first above
written.
WELLS FARGO BANK NORTHWEST, N.A.,
as Escrow Agent
By
---------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH,
as Depositary
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
Schedule I
SCHEDULE OF DEPOSITS
AIRCRAFT TYPE DEPOSIT AMOUNT ACCOUNT NO.
------------- -------------- -----------
737-824 $2,467,894 86D1
737-824 $2,467,894 86D2
737-924 $529,844 78D1
737-924 $529,844 78D2
EXHIBIT A
NOTICE OF PURCHASE WITHDRAWAL
CREDIT SUISSE FIRST BOSTON
New York Branch
11 Madison Avenue
New York, New York 10010
Attention: Robert Finney and Mark Verbitsky
Telecopier: (212) 325-8319
Gentlemen:
Reference is made to the Deposit Agreement dated as of July 31, 2001
(the "DEPOSIT AGREEMENT") between Wells Fargo Bank Northwest, N.A., as Escrow
Agent, and Credit Suisse First Boston, New York Branch, as Depositary (the
"DEPOSITARY").
In accordance with Section 2.3(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the Deposit,
$[_______], Account No. ____________.
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposit to ________________, Account No. _____, Reference: _________] on
_________ __, 200__, upon the telephonic request of a representative of the Pass
Through Trustee.
WELLS FARGO BANK NORTHWEST, N.A.,
as Escrow Agent
By
------------------------------
Name:
Title:
Dated: _______ __, 200_
EXHIBIT B
NOTICE OF FINAL WITHDRAWAL
CREDIT SUISSE FIRST BOSTON
New York Branch
11 Madison Avenue
New York, NY 10010
Attention: Robert Finney and Mark Verbitsky
Telecopier: 212-325-8319
Gentlemen:
Reference is made to the Deposit Agreement dated as of July 31, 2001
(the "DEPOSIT AGREEMENT") between Wells Fargo Bank Northwest, N.A., as Escrow
Agent, and Credit Suisse First Boston, New York Branch, as Depositary (the
"DEPOSITARY").
In accordance with Section 2.3(b) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of all Deposits.
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposits and accrued interest thereon to the Paying Agent at Wilmington
Trust Company, ABA# 031100092, Account No. _____________, Reference: Continental
2001-2D on ________.
WELLS FARGO BANK NORTHWEST, N.A.,
as Escrow Agent
By
------------------------------
Name:
Title:
Dated: _________, 200_
ESCROW AND PAYING AGENT AGREEMENT
Dated as of July 31, 2001
among
WELLS FARGO BANK NORTHWEST, N.A.
as Escrow Agent
MORGAN STANLEY & CO. INCORPORATED
and
CREDIT SUISSE FIRST BOSTON CORPORATION
as Underwriters
WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Pass Through Trustee
for and on behalf of
Continental Airlines Pass Through Trust 2001-2D-O
as Pass Through Trustee
and
WILMINGTON TRUST COMPANY
as Paying Agent
TABLE OF CONTENTS
PAGE
SECTION 1. Escrow Agent.......................................................2
Section 1.01.Appointment of Escrow Agent..............................2
Section 1.02.Instruction; Etc.........................................2
Section 1.03.Initial Escrow Amount; Issuance of Escrow Receipts.......3
Section 1.04.Payments to Receiptholders...............................4
Section 1.05.Mutilated, Destroyed, Lost or Stolen Escrow Receipt......4
Section 1.06.Additional Escrow Amounts................................4
Section 1.07.Resignation or Removal of Escrow Agent...................5
Section 1.08.Persons Deemed Owners....................................5
Section 1.09.Further Assurances.......................................5
SECTION 2. Paying Agent.......................................................5
Section 2.01.Appointment of Paying Agent..............................5
Section 2.02.Establishment of Paying Agent Account....................6
Section 2.03.Payments from Paying Agent Account.......................6
Section 2.04.Withholding Taxes........................................7
Section 2.05.Resignation or Removal of Paying Agent...................7
Section 2.06.Notice of Final Withdrawal...............................7
SECTION 3. Payments...........................................................8
SECTION 4. Other Actions......................................................8
SECTION 5. Representations and Warranties of the Escrow Agent.................8
SECTION 6. Representations and Warranties of the Paying Agent.................9
SECTION 7. Indemnification...................................................10
SECTION 8. Amendment, Etc....................................................11
SECTION 9. Notices...........................................................11
SECTION 10. Transfer..........................................................11
SECTION 11. Entire Agreement..................................................12
SECTION 12. Governing Law.....................................................12
SECTION 13. Waiver of Jury Trial Right........................................12
SECTION 14. Counterparts......................................................12
Exhibit A Escrow Receipt
Exhibit B Withdrawal Certificate
ESCROW AND PAYING AGENT AGREEMENT dated as of July 31, 2001 (as
amended, modified or supplemented from time to time, this "AGREEMENT") among
WELLS FARGO BANK NORTHWEST, N.A., a national banking association, as Escrow
Agent (in such capacity, together with its successors in such capacity, the
"ESCROW AGENT"); MORGAN STANLEY & CO. INCORPORATED and CREDIT SUISSE FIRST
BOSTON CORPORATION, as Underwriters of the Certificates referred to below (the
"UNDERWRITERS" and together with its transferees and assigns as registered
owners of the Certificates, the "INVESTORS") under the Underwriting Agreement
referred to below; WILMINGTON TRUST COMPANY, a Delaware banking corporation, not
in its individual capacity except as otherwise expressly provided herein, but
solely as trustee (in such capacity, together with its successors in such
capacity, the "PASS THROUGH TRUSTEE") under the Pass Through Trust Agreement
referred to below; and WILMINGTON TRUST COMPANY, a Delaware banking corporation,
as paying agent hereunder (in such capacity, together with its successors in
such capacity, the "PAYING AGENT").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, Continental Airlines, Inc. ("CONTINENTAL") and the Pass
Through Trustee have entered into a Trust Supplement, dated as of July 31, 2001
(the "TRUST SUPPLEMENT"), to the Pass Through Trust Agreement, dated as of
September 25, 1997 (together, as amended, modified or supplemented from time to
time in accordance with the terms thereof, the "PASS THROUGH TRUST AGREEMENT")
relating to Continental Airlines Pass Through Trust 2001-2D-O (the "PASS THROUGH
TRUST") pursuant to which the Continental Airlines Pass Through Trust, Series
2001-2D-O Certificates referred to therein (the "CERTIFICATES") are being issued
(the date of such issuance, the "ISSUANCE DATE");
WHEREAS, Continental and the Underwriters have entered into an
Underwriting Agreement dated as of July 13, 2001 (as amended, modified or
supplemented from time to time in accordance with the terms thereof, the
"UNDERWRITING AGREEMENT") pursuant to which the Pass Through Trustee will issue
and sell the Certificates to the Underwriters;
WHEREAS, Continental, the Pass Through Trustee and certain other
persons concurrently herewith are entering into a Note Purchase Agreement, dated
as of the date hereof (the "NOTE PURCHASE AGREEMENT"), pursuant to which the
Pass Through Trustee has agreed to acquire from time to time on or prior to the
Delivery Period Termination Date (as defined in the Note Purchase Agreement)
equipment notes (the "EQUIPMENT NOTES") issued to finance the acquisition of
aircraft by Continental, as lessee or as owner, utilizing a portion of the
proceeds from the sale of the Certificates (the "NET PROCEEDS");
WHEREAS, the Underwriters and the Pass Through Trustee intend that
the Net Proceeds (excluding any amount used to purchase Equipment Notes on the
Issuance Date) be held in escrow by the Escrow Agent on behalf of the Investors,
subject to withdrawal upon request by the Pass Through Trustee and satisfaction
of the conditions set forth in the Note Purchase Agreement for the purpose of
purchasing Equipment Notes, and that pending such withdrawal the Net Proceeds be
deposited on behalf of the Escrow Agent with Credit Suisse First Boston, acting
through its New York branch, as Depositary (the "DEPOSITARY") under the Deposit
Agreement, dated as of the date hereof between the Depositary and the Escrow
Agent relating to the Pass Through Trust (as amended, modified or supplemented
from time to time in accordance with the terms thereof, the "DEPOSIT AGREEMENT")
pursuant to which, among other things, the Depositary will pay interest for
distribution to the Investors and establish accounts from which the Escrow Agent
shall make withdrawals upon request of and proper certification by the Pass
Through Trustee;
WHEREAS, the Escrow Agent wishes to appoint the Paying Agent to pay
amounts required to be distributed to the Investors in accordance with this
Agreement; and
WHEREAS, capitalized terms used but not defined herein shall have
the meanings ascribed to such terms in the Pass Through Trust Agreement.
NOW, THEREFORE, in consideration of the obligations contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. ESCROW AGENT.
Section 1.01. APPOINTMENT OF ESCROW AGENT. Each of the Underwriters,
for and on behalf of each of the Investors, hereby irrevocably appoints,
authorizes and directs the Escrow Agent to act as escrow agent and fiduciary
hereunder and under the Deposit Agreement for such specific purposes and with
such powers as are specifically delegated to the Escrow Agent by the terms of
this Agreement, together with such other powers as are reasonably incidental
thereto. Any and all money received and held by the Escrow Agent under this
Agreement or the Deposit Agreement shall be held in escrow by the Escrow Agent
in accordance with the terms of this Agreement. This Agreement is irrevocable
and the Investors' rights with respect to any monies received and held in escrow
by the Escrow Agent under this Agreement or the Deposit Agreement shall only be
as provided under the terms and conditions of this Agreement and the Deposit
Agreement. The Escrow Agent (which term as used in this sentence shall include
reference to its affiliates and its own and its affiliates' officers, directors,
employees and agents): (a) shall have no duties or responsibilities except those
expressly set forth in this Agreement; (b) shall not be responsible to the Pass
Through Trustee or the Investors for any recitals, statements, representations
or warranties of any person other then itself contained in this Agreement or the
Deposit Agreement or for the failure by the Pass Through Trustee, the Investors
or any other person or entity (other than the Escrow Agent) to perform any of
its obligations hereunder (whether or not the Escrow Agent shall have any
knowledge thereof); and (c) shall not be responsible for any action taken or
omitted to be taken by it hereunder or provided for herein or in connection
herewith, except for its own willful misconduct or gross negligence (or simple
negligence in connection with the handling of funds).
Section 1.02. INSTRUCTION; ETC. The Underwriters, for and on behalf
of each of the Investors, hereby irrevocably instruct the Escrow Agent, and the
Escrow Agent agrees, (a) to enter into the Deposit Agreement, (b) to appoint the
Paying Agent as provided in this Agreement, (c) upon receipt at any time and
from time to time prior to the Termination Date (as defined below) of a
certificate substantially in the form of Exhibit B hereto (a "WITHDRAWAL
CERTIFICATE") executed by the Pass Through Trustee, together with an attached
Notice of Purchase Withdrawal in substantially the form of Exhibit A to the
Deposit Agreement duly completed by the Pass Through Trustee (the "APPLICABLE
NOTICE OF PURCHASE WITHDRAWAL" and the withdrawal to which it relates, a
"PURCHASE WITHDRAWAL"), immediately to execute the Applicable Notice of Purchase
Withdrawal as Escrow Agent and transmit it to the Depositary by facsimile
transmission in accordance with the Deposit Agreement; PROVIDED that, upon the
request of the Pass Through Trustee after such transmission, the Escrow Agent
shall cancel such Applicable Notice of Purchase Withdrawal, and (d) if there are
any undrawn Deposits (as defined in the Deposit Agreement) on the "TERMINATION
DATE", which shall mean the earlier of (i) May 1, 2002 (PROVIDED that, if a
labor strike occurs or continues at The Boeing Company after November 28, 2000
and prior to May 1, 2002 (a "LABOR STRIKE"), such date shall be extended by
adding thereto the number of days that such strike continued in effect after
November 28, 2000 (the "ADDITIONAL DAYS")) and (ii) the day on which the Escrow
Agent receives notice from the Pass Through Trustee that the Pass Through
Trustee's obligation to purchase Equipment Notes under the Note Purchase
Agreement has terminated, to give notice to the Depositary (with a copy to the
Paying Agent) substantially in the form of Exhibit B to the Deposit Agreement
requesting a withdrawal of all of the remaining Deposits, together with accrued
and unpaid interest on such Deposits to the date of withdrawal, on the 25th day
after the date that such notice of withdrawal is given to the Depositary (or, if
not a Business Day, on the next succeeding Business Day) (a "FINAL WITHDRAWAL"),
PROVIDED that if the day scheduled for the Final Withdrawal in accordance with
the foregoing is within 10 days before or after a Regular Distribution Date,
then the Escrow Agent shall request that such requested Final Withdrawal be made
on such Regular Distribution Date (the date of such requested withdrawal, the
"FINAL WITHDRAWAL DATE"). If for any reason the Escrow Agent shall have failed
to give the Final Withdrawal Notice to the Depositary on or before May 8, 2002
(PROVIDED that if a Labor Strike occurs or continues, such date shall be
extended by the Additional Days), and there are unwithdrawn Deposits on such
date, the Final Withdrawal Date shall be deemed to be May 31, 2002 (PROVIDED
that if a Labor Strike occurs or continues, such date shall be extended by the
Additional Days).
Section 1.03. INITIAL ESCROW AMOUNT; ISSUANCE OF ESCROW RECEIPTS.
The Escrow Agent hereby directs the Underwriters to, and the Underwriters hereby
acknowledge that on the date hereof it shall, irrevocably deliver to the
Depositary on behalf of the Escrow Agent, an amount in U.S. dollars ("DOLLARS")
and immediately available funds equal to $5,995,476 (or such lesser amount equal
to the Net Proceeds less amounts used to purchase Equipment Notes on the
Issuance Date) for deposit on behalf of the Escrow Agent with the Depositary in
accordance with Section 2.1 of the Deposit Agreement. The Underwriters hereby
instruct the Escrow Agent, upon receipt of such sum from the Underwriters, to
confirm such receipt by executing and delivering to the Pass Through Trustee an
Escrow Receipt in the form of Exhibit A hereto (an "ESCROW RECEIPT"), (a) to be
affixed by the Pass Through Trustee to each Certificate and (b) to evidence the
same percentage interest (the "ESCROW INTEREST") in the Account Amounts (as
defined below) as the Fractional Undivided Interest in the Pass Through Trust
evidenced by the Certificate to which it is to be affixed. The Escrow Agent
shall provide to the Pass Through Trustee for attachment to each Certificate
newly issued under and in accordance with the Pass Through Trust Agreement an
executed Escrow Receipt as the Pass Through Trustee may from time to time
request of the Escrow Agent. Each Escrow Receipt shall be registered by the
Escrow Agent in a register (the "REGISTER") maintained by the Escrow Agent in
the same name and same manner as the Certificate to which it is attached and may
not thereafter be detached from such Certificate to which it is to be affixed
prior to the distribution of the Final Withdrawal (the "FINAL DISTRIBUTION").
After the Final Distribution, no additional Escrow Receipts shall be issued and
the Pass Through Trustee shall request the return to the Escrow Agent for
cancellation of all outstanding Escrow Receipts.
Section 1.04. PAYMENTS TO RECEIPTHOLDERS. All payments and
distributions made to holders of an Escrow Receipt (collectively
"RECEIPTHOLDERS") in respect of the Escrow Receipt shall be made only from
amounts deposited in the Paying Agent Account (as defined below) ("ACCOUNT
AMOUNTS"). Each Receiptholder, by its acceptance of an Escrow Receipt, agrees
that (a) it will look solely to the Account Amounts for any payment or
distribution due to such Receiptholder pursuant to the terms of the Escrow
Receipt and this Agreement and (b) it will have no recourse to Continental, the
Pass Through Trustee, the Paying Agent or the Escrow Agent, except as expressly
provided herein or in the Pass Through Trust Agreement. No Receiptholder shall
have any right to vote or in any manner otherwise control the operation and
management of the Paying Agent Account or the obligations of the parties hereto,
nor shall anything set forth herein, or contained in the terms of the Escrow
Receipt, be construed so as to constitute the Receiptholders from time to time
as partners or members of an association.
Section 1.05. MUTILATED, DESTROYED, LOST OR STOLEN ESCROW RECEIPT.
If (a) any mutilated Escrow Receipt is surrendered to the Escrow Agent or the
Escrow Agent receives evidence to its satisfaction of the destruction, loss or
theft of any Escrow Receipt and (b) there is delivered to the Escrow Agent and
the Pass Through Trustee such security, indemnity or bond, as may be required by
them to hold each of them harmless, then, absent notice to the Escrow Agent or
the Pass Through Trustee that such destroyed, lost or stolen Escrow Receipt has
been acquired by a bona fide purchaser, and provided that the requirements of
Section 8-405 of the Uniform Commercial Code in effect in any applicable
jurisdiction are met, the Escrow Agent shall execute, authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Escrow Receipt, a new Escrow Receipt or Escrow Receipts and of like Escrow
Interest in the Account Amounts and bearing a number not contemporaneously
outstanding.
In connection with the issuance of any new Escrow Receipt under this
Section 1.05, the Escrow Agent may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Pass
Through Trustee and the Escrow Agent) connected therewith.
Any duplicate Escrow Receipt issued pursuant to this Section 1.05
shall constitute conclusive evidence of the appropriate Escrow Interest in the
Account Amounts, as if originally issued, whether or not the lost, stolen or
destroyed Escrow Receipt shall be found at any time.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Escrow Receipts.
Section 1.06. ADDITIONAL ESCROW AMOUNTS. On the date of any Purchase
Withdrawal, the Pass Through Trustee may re-deposit with the Depositary some or
all of the amounts so withdrawn in accordance with Section 2.4 of the Deposit
Agreement.
Section 1.07. RESIGNATION OR REMOVAL OF ESCROW AGENT. Subject to the
appointment and acceptance of a successor Escrow Agent as provided below, the
Escrow Agent may resign at any time by giving 30 days' prior written notice
thereof to the Investors, but may not otherwise be removed except for cause by
the written consent of the Investors with respect to Investors representing
Escrow Interests aggregating not less than a majority in interest in the Account
Amounts (an "ACTION OF INVESTORS"). Upon any such resignation or removal, the
Investors, by an Action of Investors, shall have the right to appoint a
successor Escrow Agent. If no successor Escrow Agent shall have been so
appointed and shall have accepted such appointment within 30 days after the
retiring Escrow Agent's giving of notice of resignation or the removal of the
retiring Escrow Agent, then the retiring Escrow Agent may appoint a successor
Escrow Agent. Any successor Escrow Agent shall be a bank which has an office in
the United States with a combined capital and surplus of at least $100,000,000.
Upon the acceptance of any appointment as Escrow Agent hereunder by a successor
Escrow Agent, such successor Escrow Agent shall enter into such documents as the
Pass Through Trustee shall require and shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Escrow
Agent, and the retiring Escrow Agent shall be discharged from its duties and
obligations hereunder. No resignation or removal of the Escrow Agent shall be
effective unless a written confirmation shall have been obtained from each of
Moody's Investors Service, Inc. and Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., that the replacement of the Escrow
Agent with the successor Escrow Agent will not result in (a) a reduction of the
rating for the Certificates below the then current rating for the Certificates
or (b) a withdrawal or suspension of the rating of the Certificates.
Section 1.08. PERSONS DEEMED OWNERS. Prior to due presentment of a
Certificate for registration of transfer, the Escrow Agent and the Paying Agent
may treat the Person in whose name any Escrow Receipt is registered (as of the
day of determination) as the owner of such Escrow Receipt for the purpose of
receiving distributions pursuant to this Agreement and for all other purposes
whatsoever, and neither the Escrow Agent nor the Paying Agent shall be affected
by any notice to the contrary.
Section 1.09. FURTHER ASSURANCES. The Escrow Agent agrees to take
such actions, and execute such other documents, as may be reasonably requested
by the Pass Through Trustee in order to effectuate the purposes of this
Agreement and the performance by the Escrow Agent of its obligations hereunder.
SECTION 2. PAYING AGENT.
Section 2.01. APPOINTMENT OF PAYING AGENT. The Escrow Agent hereby
irrevocably appoints and authorizes the Paying Agent to act as its paying agent
hereunder, for the benefit of the Investors, for such specific purposes and with
such powers as are specifically delegated to the Paying Agent by the terms of
this Agreement, together with such other powers as are reasonably incidental
thereto. Any and all money received and held by the Paying Agent under this
Agreement or the Deposit Agreement shall be held in the Paying Agent Account for
the benefit of the Investors. The Paying Agent (which term as used in this
sentence shall include reference to its affiliates and its own and its
affiliates' officers, directors, employees and agents): (a) shall have no duties
or responsibilities except those expressly set forth in this Agreement, and
shall not by reason of this Agreement be a trustee for the Escrow Agent; (b)
shall not be responsible to the Escrow Agent for any recitals, statements,
representations or warranties of any person other then itself contained in this
Agreement or for the failure by the Escrow Agent or any other person or entity
(other than the Paying Agent) to perform any of its obligations hereunder
(whether or not the Paying Agent shall have any knowledge thereof); and (c)
shall not be responsible for any action taken or omitted to be taken by it
hereunder or provided for herein or in connection herewith, except for its own
willful misconduct or gross negligence (or simple negligence in connection with
the handling of funds).
Section 2.02. ESTABLISHMENT OF PAYING AGENT ACCOUNT. The Paying
Agent shall establish a deposit account (the "PAYING AGENT ACCOUNT") at
Wilmington Trust Company in the name of the Escrow Agent. It is expressly
understood by the parties hereto that the Paying Agent is acting as the paying
agent of the Escrow Agent hereunder and that no amounts on deposit in the Paying
Agent Account constitute part of the Trust Property.
Section 2.03. PAYMENTS FROM PAYING AGENT ACCOUNT. The Escrow Agent
hereby irrevocably instructs the Paying Agent, and the Paying Agent agrees to
act, as follows:
(a) On each Interest Payment Date (as defined in the Deposit
Agreement) or as soon thereafter as the Paying Agent has confirmed receipt
in the Paying Agent Account from the Depositary of any amount in respect of
accrued interest on the Deposits, the Paying Agent shall distribute out of
the Paying Agent Account the entire amount deposited therein by the
Depositary. There shall be so distributed to each Receiptholder of record
on the 15th day (whether or not a Business Day) preceding such Interest
Payment Date by check mailed to such Receiptholder, at the address
appearing in the Register, such Receiptholder's pro rata share (based on
the Escrow Interest in the Account Amounts held by such Receiptholder) of
the total amount of interest deposited by the Depositary in the Paying
Agent Account on such date, except that, with respect to Escrow Receipts
registered on the Record Date in the name of The Depository Trust Company
("DTC"), such distribution shall be made by wire transfer in immediately
available funds to the account designated by DTC.
(b) Upon the confirmation by the Paying Agent of receipt in the
Paying Agent Account from the Depositary of any amount in respect of the
Final Withdrawal, the Paying Agent shall forthwith distribute the entire
amount of the Final Withdrawal deposited therein by the Depositary. There
shall be so distributed to each Receiptholder of record on the 15th day
(whether or not a Business Day) preceding the Final Withdrawal Date by
check mailed to such Receiptholder, at the address appearing in the
Register, such Receiptholder's pro rata share (based on the Escrow Interest
in the Account Amounts held by such Receiptholder) of the total amount in
the Paying Agent Account on account of such Final Withdrawal, except that,
with respect to Escrow Receipts registered on the Record Date in the name
of DTC, such distribution shall be made by wire transfer in immediately
available funds to the account designated by DTC.
(c) If any payment of interest or principal in respect of the
Final Withdrawal is not received by the Paying Agent within five days of
the applicable date when due, then it shall be distributed to
Receiptholders after actual receipt by the Paying Agent on the same basis
as a Special Payment is distributed under the Pass Through Trust Agreement.
(d) The Paying Agent shall include with any check mailed
pursuant to this Section any notice required to be distributed under the
Pass Through Trust Agreement that is furnished to the Paying Agent by the
Pass Through Trustee.
Section 2.04. WITHHOLDING TAXES. The Paying Agent shall exclude and
withhold from each distribution of accrued interest on the Deposits (as defined
in the Deposit Agreement) and any amount in respect of any Final Withdrawal any
and all withholding taxes applicable thereto as required by law. The Paying
Agent agrees to act as such withholding agent and, in connection therewith,
whenever any present or future taxes or similar charges are required to be
withheld with respect to any amounts payable in respect of the Deposits (as
defined in the Deposit Agreement) or the escrow amounts, to withhold such
amounts and timely pay the same to the appropriate authority in the name of and
on behalf of the Receiptholders, that it will file any necessary withholding tax
returns or statements when due, and that, as promptly as possible after the
payment thereof, it will deliver to each such Receiptholder appropriate
documentation showing the payment thereof, together with such additional
documentary evidence as such Receiptholder may reasonably request from time to
time. The Paying Agent agrees to file any other information reports as it may be
required to file under United States law.
Section 2.05. RESIGNATION OR REMOVAL OF PAYING AGENT. Subject to the
appointment and acceptance of a successor Paying Agent as provided below, the
Paying Agent may resign at any time by giving 30 days' prior written notice
thereof to the Escrow Agent, but may not otherwise be removed except for cause
by the Escrow Agent. Upon any such resignation or removal, the Escrow Agent
shall have the right to appoint a successor Paying Agent. If no successor Paying
Agent shall have been so appointed and shall have accepted such appointment
within 30 days after the retiring Paying Agent's giving of notice of resignation
or the removal of the retiring Paying Agent, then the retiring Paying Agent may
appoint a successor Paying Agent. Any Successor Paying Agent shall be a bank
which has an office in the United States with a combined capital and surplus of
at least $100,000,000. Upon the acceptance of any appointment as Paying Agent
hereunder by a successor Paying Agent, such successor Paying Agent shall enter
into such documents as the Escrow Agent shall require and shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Paying Agent, and the retiring Paying Agent shall be discharged
from its duties and obligations hereunder.
Section 2.06. NOTICE OF FINAL WITHDRAWAL. Promptly after receipt by
the Paying Agent of notice that the Escrow Agent has requested a Final
Withdrawal or that a Final Withdrawal will be made, the Paying Agent shall cause
notice of the distribution of the Final Withdrawal to be mailed to each of the
Receiptholders at its address as it appears in the Register. Such notice shall
be mailed not less than 15 days prior to the Final Withdrawal Date. Such notice
shall set forth:
(i) the Final Withdrawal Date and the date for determining
Receiptholders of record who shall be entitled to receive distributions in
respect of the Final Withdrawal,
(ii) the amount of the payment in respect of the Final
Withdrawal for each $1,000 face amount Certificate (based on information
provided by the Pass Through Trustee) and the amount thereof constituting
unused Deposits (as defined in the Deposit Agreement) and interest thereon,
and
(iii) if the Final Withdrawal Date is the same date as a Regular
Distribution Date, the total amount to be received on such date for each
$1,000 face amount Certificate (based on information provided by the Pass
Through Trustee).
Such mailing may include any notice required to be given to
Certificateholders in connection with such distribution pursuant to the Pass
Through Trust Agreement.
SECTION 3. PAYMENTS. If, notwithstanding the instructions in Section
4 of the Deposit Agreement that all amounts payable to the Escrow Agent under
the Deposit Agreement be paid by the Depositary directly to the Paying Agent or
the Pass Through Trustee (depending on the circumstances), the Escrow Agent
receives any payment thereunder, then the Escrow Agent shall forthwith pay such
amount in Dollars and in immediately available funds by wire transfer to (a) in
the case of a payment of accrued interest on the Deposits (as defined in the
Deposit Agreement) or any Final Withdrawal, directly to the Paying Agent Account
and (b) in the case of any Purchase Withdrawal, directly to the Pass Through
Trustee or its designee as specified and in the manner provided in the
Applicable Notice of Purchase Withdrawal. The Escrow Agent hereby waives any and
all rights of set-off, combination of accounts, right of retention or similar
right (whether arising under applicable law, contract or otherwise) it may have
against amounts payable to the Paying Agent howsoever arising.
SECTION 4. OTHER ACTIONS. The Escrow Agent shall take such other
actions under or in respect of the Deposit Agreement (including, without
limitation, the enforcement of the obligations of the Depositary thereunder) as
the Investors, by an Action of Investors, may from time to time request.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE ESCROW AGENT. The
Escrow Agent represents and warrants to Continental, the Investors, the Paying
Agent and the Pass Through Trustee as follows:
(i) it is a national banking association duly organized and
validly existing in good standing under the laws of the United States of
America;
(ii) it has full power, authority and legal right to conduct its
business and operations as currently conducted and to enter into and
perform its obligations under this Agreement and the Deposit Agreement;
(iii) the execution, delivery and performance of each of this
Agreement and the Deposit Agreement have been duly authorized by all
necessary corporate action on the part of it and do not require any
stockholder approval, or approval or consent of any trustee or holder of
any indebtedness or obligations of it, and each such document has been duly
executed and delivered by it and constitutes its legal, valid and binding
obligations enforceable against it in accordance with the terms hereof or
thereof except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws or equitable
principles of general application to or affecting the enforcement of
creditors' rights generally (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iv) no authorization, consent or approval of or other action
by, and no notice to or filing with, any United States federal or state
governmental authority or regulatory body is required for the execution,
delivery or performance by it of this Agreement or the Deposit Agreement;
(v) neither the execution, delivery or performance by it of this
Agreement or the Deposit Agreement, nor compliance with the terms and
provisions hereof or thereof, conflicts or will conflict with or results or
will result in a breach or violation of any of the terms, conditions or
provisions of, or will require any consent or approval under, any law,
governmental rule or regulation or the charter documents, as amended, or
bylaws, as amended, of it or any similar instrument binding on it or any
order, writ, injunction or decree of any court or governmental authority
against it or by which it or any of its properties is bound or any
indenture, mortgage or contract or other agreement or instrument to which
it is a party or by which it or any of its properties is bound, or
constitutes or will constitute a default thereunder or results or will
result in the imposition of any lien upon any of its properties; and
(vi) there are no pending or, to its knowledge, threatened
actions, suits, investigations or proceedings (whether or not purportedly
on behalf of it) against or affecting it or any of its property before or
by any court or administrative agency which, if adversely determined, (A)
would adversely affect the ability of it to perform its obligations under
this Agreement or the Deposit Agreement or (B) would call into question or
challenge the validity of this Agreement or the Deposit Agreement or the
enforceability hereof or thereof in accordance with the terms hereof or
thereof, nor is the Escrow Agent in default with respect to any order of
any court, governmental authority, arbitration board or administrative
agency so as to adversely affect its ability to perform its obligations
under this Agreement or the Deposit Agreement.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE PAYING AGENT. The
Paying Agent represents and warrants to Continental, the Investors, the Escrow
Agent and the Pass Through Trustee as follows:
(i) it is a Delaware banking company duly organized and validly
existing in good standing under the laws of its jurisdiction of
incorporation;
(ii) it has full power, authority and legal right to conduct its
business and operations as currently conducted and to enter into and
perform its obligations under this Agreement;
(iii) the execution, delivery and performance of this Agreement
has been duly authorized by all necessary corporate action on the part of
it and does not require any stockholder approval, or approval or consent of
any trustee or holder of any indebtedness or obligations of it, and such
document has been duly executed and delivered by it and constitutes its
legal, valid and binding obligations enforceable against it in accordance
with the terms hereof except as such enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the enforcement
of creditors' rights generally (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(iv) no authorization, consent or approval of or other action
by, and no notice to or filing with, any United States federal or state
governmental authority or regulatory body is required for the execution,
delivery or performance by it of this Agreement;
(v) neither the execution, delivery or performance by it of this
Agreement, nor compliance with the terms and provisions hereof, conflicts
or will conflict with or results or will result in a breach or violation of
any of the terms, conditions or provisions of, or will require any consent
or approval under, any law, governmental rule or regulation or the charter
documents, as amended, or bylaws, as amended, of it or any similar
instrument binding on it or any order, writ, injunction or decree of any
court or governmental authority against it or by which it or any of its
properties is bound or any indenture, mortgage or contract or other
agreement or instrument to which it is a party or by which it or any of its
properties is bound, or constitutes or will constitute a default thereunder
or results or will result in the imposition of any lien upon any of its
properties; and
(vi) there are no pending or, to its knowledge, threatened
actions, suits, investigations or proceedings (whether or not purportedly
on behalf of it) against or affecting it or any of its property before or
by any court or administrative agency which, if adversely determined, (A)
would adversely affect the ability of it to perform its obligations under
this Agreement or (B) would call into question or challenge the validity of
this Agreement or the enforceability hereof in accordance with the terms
hereof, nor is the Paying Agent in default with respect to any order of any
court, governmental authority, arbitration board or administrative agency
so as to adversely affect its ability to perform its obligations under this
Agreement.
SECTION 7. INDEMNIFICATION. Except for actions expressly required of
the Escrow Agent or the Paying Agent hereunder, each of the Escrow Agent and the
Paying Agent shall in all cases be fully justified in failing or refusing to act
hereunder unless it shall have been indemnified by the party requesting such
action in a manner reasonably satisfactory to it against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. In the event Continental requests any amendment to any
Operative Agreement (as defined in the Note Purchase Agreement), the Pass
Through Trustee agrees to pay all reasonable fees and expenses (including,
without limitation, fees and disbursements of counsel) of the Escrow Agent and
the Paying Agent in connection therewith.
SECTION 8. AMENDMENT, ETC. Upon request of the Pass Through Trustee
and approval by an Action of Investors, the Escrow Agent shall enter into an
amendment to this Agreement, so long as such amendment does not adversely affect
the rights or obligations of the Escrow Agent or the Paying Agent, PROVIDED that
upon request of the Pass Through Trustee and without any consent of the
Investors, the Escrow Agent shall enter into an amendment to this Agreement for
any of the following purposes:
(1) to correct or supplement any provision in this Agreement
which may be defective or inconsistent with any other provision herein or
to cure any ambiguity or correct any mistake or to modify any other
provision with respect to matters or questions arising under this
Agreement, PROVIDED that any such action shall not materially adversely
affect the interests of the Investors; or
(2) to comply with any requirement of the SEC, applicable law,
rules or regulations of any exchange or quotation system on which the
Certificates are listed or any regulatory body; or
(3) to evidence and provide for the acceptance of appointment
under this Agreement of a successor Escrow Agent, successor Paying Agent or
successor Pass Through Trustee.
SECTION 9. NOTICES. Unless otherwise expressly provided herein, any
notice or other communication under this Agreement shall be in writing
(including by facsimile) and shall be deemed to be given and effective upon
receipt thereof. All notices shall be sent to (a) in the case of the Investors,
as their respective addresses shall appear in the Register, (b) in the case of
the Escrow Agent, Wells Fargo Bank Northwest, N.A., 79 South Main Street, Third
Floor, Salt Lake City, UT 84111, Attention: Corporate Trust Services
(Telecopier: (801) 246-5053), (c) in the case of the Pass Through Trustee,
Wilmington Trust Company, 1100 North Market Street, Wilmington, DE 19890,
Attention: Corporate Trust Administration (Telecopier: (302) 651-8882) or (d) in
the case of the Paying Agent, Wilmington Trust Company, 1100 North Market
Street, Wilmington, DE 19890, Attention: Corporate Trust Administration
(Telecopier: (302) 651-8882), in each case with a copy to Continental,
Continental Airlines, Inc., 1600 Smith Street, Dept. HQS-FN, Houston, TX 77002,
Attention: Treasurer (Telecopier: (713) 324-2447) (or at such other address as
any such party may specify from time to time in a written notice to the other
parties). On or prior to the execution of this Agreement, the Pass Through
Trustee has delivered to the Escrow Agent a certificate containing specimen
signatures of the representatives of the Pass Through Trustee who are authorized
to give notices and instructions with respect to this Agreement. The Escrow
Agent may conclusively rely on such certificate until the Escrow Agent receives
written notice from the Pass Through Trustee to the contrary.
SECTION 10. TRANSFER. No party hereto shall be entitled to assign or
otherwise transfer this Agreement (or any interest herein) other than (in the
case of the Escrow Agent) to a successor escrow agent under Section 1.06 hereof
or (in the case of the Paying Agent) to a successor paying agent under Section
2.04 hereof, and any purported assignment in violation thereof shall be void.
This Agreement shall be binding upon the parties hereto and their respective
successors and (in the case of the Escrow Agent and the Paying Agent) their
respective permitted assigns. Upon the occurrence of the Transfer (as defined
below) contemplated by the Assignment and Assumption Agreement (as defined
below), the Pass Through Trustee shall (without further act) be deemed to have
transferred all of its right, title and interest in and to this Agreement to the
trustee of the Successor Trust (as defined below) and, thereafter, the trustee
of the Successor Trust shall be deemed to be the "Pass Through Trustee"
hereunder with the rights and obligations of the "Pass Through Trustee"
hereunder and each reference herein to "Continental Airlines Pass Through Trust
2001-2D-O" shall be deemed to be a reference to "Continental Airlines Pass
Through Trust 2001-2D-S". The parties hereto hereby acknowledge and consent to
the Transfer contemplated by the Assignment and Assumption Agreement. As used
herein, "TRANSFER" means the transfers of the assets to the Successor Trust
contemplated by the Assignment and Assumption Agreement; "ASSIGNMENT AND
ASSUMPTION AGREEMENT" means the Assignment and Assumption Agreement to be
entered into between the Pass Through Trustee and the trustee of the Successor
Trust, substantially in the form of Exhibit C to the Trust Supplement;
"SUCCESSOR TRUST" means the Continental Airlines Pass Through Trust 2001-2D-S.
SECTION 11. ENTIRE AGREEMENT. This Agreement sets forth all of the
promises, covenants, agreements, conditions and understandings among the Escrow
Agent, the Paying Agent, the Underwriters and the Pass Through Trustee with
respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and undertakings, inducements or conditions, express
or implied, oral or written.
SECTION 12. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 13. WAIVER OF JURY TRIAL RIGHT. EACH OF THE ESCROW AGENT,
THE PAYING AGENT, THE INVESTORS AND THE PASS THROUGH TRUSTEE ACKNOWLEDGES AND
ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.
SECTION 14. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute one instrument.
IN WITNESS WHEREOF, the Escrow Agent, the Paying Agent, the
Underwriters and the Pass Through Trustee have caused this Escrow and Paying
Agent Agreement to be duly executed as of the day and year first above written.
WELLS FARGO BANK NORTHWEST, N.A.,
as Escrow Agent
By
----------------------------------------------
Name:
Title:
MORGAN STANLEY & CO. INCORPORATED
and
CREDIT SUISSE FIRST BOSTON
CORPORATION
as Underwriters
By: MORGAN STANLEY & CO.
INCORPORATED
By
----------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as Pass Through
Trustee for and on behalf of Continental
Airlines Pass Through Trust 2001-2D-O
By
----------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Paying Agent
By
----------------------------------------------
Name:
Title:
EXHIBIT A
CONTINENTAL AIRLINES 2001-2D ESCROW RECEIPT
No. ____
This Escrow Receipt evidences a fractional undivided interest in
amounts ("ACCOUNT AMOUNTS") from time to time deposited into a certain paying
agent account (the "PAYING AGENT ACCOUNT") described in the Escrow and Paying
Agent Agreement dated as of July 31, 2001 (as amended, modified or supplemented
from time to time, the "ESCROW AND PAYING AGENT AGREEMENT") among Wells Fargo
Bank Northwest, N.A., as Escrow Agent (in such capacity, together with its
successors in such capacity, the "ESCROW AGENT"), Morgan Stanley & Co.
Incorporated and Credit Suisse First Boston Corporation, as Underwriters,
Wilmington Trust Company, as Pass Through Trustee (in such capacity, together
with its successors in such capacity, the "PASS THROUGH TRUSTEE") and Wilmington
Trust Company, as paying agent (in such capacity, together with its successors
in such capacity, the "PAYING AGENT"). Capitalized terms not defined herein
shall have the meanings assigned to them in the Escrow and Paying Agent
Agreement.
This Escrow Receipt is issued under and is subject to the terms,
provisions and conditions of the Escrow and Paying Agent Agreement. By virtue of
its acceptance hereof the holder of this Escrow Receipt assents and agrees to be
bound by the provisions of the Escrow and Paying Agent Agreement and this Escrow
Receipt.
This Escrow Receipt represents a fractional undivided interest in
amounts deposited from time to time in the Paying Agent Account, and grants or
represents no rights, benefits or interests of any kind in respect of any assets
or property other than such amounts. This Escrow Receipt evidences the same
percentage interest in the Account Amounts as the Fractional Undivided Interest
in the Pass Through Trust evidenced by the Certificate to which this Escrow
Receipt is affixed.
All payments and distributions made to Receiptholders in respect of
the Escrow Receipt shall be made only from Account Amounts deposited in the
Paying Agent Account. The holder of this Escrow Receipt, by its acceptance of
this Escrow Receipt, agrees that it will look solely to the Account Amounts for
any payment or distribution due to it pursuant to this Escrow Receipt and that
it will not have any recourse to Continental, the Pass Through Trustee, the
Paying Agent or the Escrow Agent, except as expressly provided herein or in the
Pass Through Trust Agreement. No Receiptholder of this Escrow Receipt shall have
any right to vote or in any manner otherwise control the operation and
management of the Paying Agent Account, nor shall anything set forth herein, or
contained in the terms of this Escrow Receipt, be construed so as to constitute
the Receiptholders from time to time as partners or members of an association.
This Escrow Receipt may not be assigned or transferred except in
connection with the assignment or transfer of the Certificate to which this
Escrow Receipt is affixed. After payment to the holder hereof of its Escrow
Interest in the Final Distribution, upon the request of the Pass Through
Trustee, the holder hereof will return this Escrow Receipt to the Pass Through
Trustee.
The Paying Agent may treat the person in whose name the Certificate
to which this Escrow Receipt is attached as the owner hereof for all purposes,
and the Paying Agent shall not be affected by any notice to the contrary.
THIS ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Escrow Agent has caused this Escrow Receipt
to be duly executed.
Dated: July 31, 2001
WELLS FARGO BANK NORTHWEST, N.A,
as Escrow Agent
By
-----------------------------
Name:
Title:
EXHIBIT B
WITHDRAWAL CERTIFICATE
Wells Fargo Bank Northwest, N.A.,
as Escrow Agent
Dear Sirs:
Reference is made to the Escrow and Paying Agent Agreement, dated as
of July 31, 2001 (the "Agreement"). We hereby certify to you that the conditions
to the obligations of the undersigned to execute a Participation Agreement
pursuant to the Note Purchase Agreement have been satisfied. Pursuant to Section
1.02(c) of the Agreement, please execute the attached Notice of Purchase
Withdrawal and immediately transmit by facsimile to the Depositary, at (212)
325-8319, Attention: Robert Finney and Mark Verbitsky.
Very truly yours,
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Pass Through Trustee
By
---------------------------------
Name:
Title:
Dated: ____________, 200_
----------------------------------------------------------------
NOTE PURCHASE AGREEMENT
Dated as of July 31, 2001
Among
CONTINENTAL AIRLINES, INC.,
WILMINGTON TRUST COMPANY,
as Pass Through Trustee under the
Pass Through Trust Agreement
WILMINGTON TRUST COMPANY,
as Subordination Agent under each
of the Intercreditor Agreements
WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as Escrow Agent
and
WILMINGTON TRUST COMPANY,
as Paying Agent
----------------------------------------------------------------
INDEX TO NOTE PURCHASE AGREEMENT
Page
SECTION 1A. Sale of Series D Equipment
Notes on the Issuance Date.........................................4
SECTION 1. Financing of New Aircraft..........................................5
SECTION 2. Conditions Precedent...............................................9
SECTION 3. Representations and Warranties.....................................9
SECTION 4. Covenants.........................................................15
SECTION 5. Notices...........................................................17
SECTION 6. Expenses..........................................................18
SECTION 7. Further Assurances................................................18
SECTION 8. Miscellaneous.....................................................18
SECTION 9. Governing Law.....................................................19
Schedules
Schedule I Owned Aircraft
Schedule II Eligible Aircraft and Scheduled Delivery Months
Schedule III Original Intercreditor Agreements
Schedule IV Mandatory Document Terms
Schedule V Mandatory Economic Terms
ANNEX
Annex A Definitions
EXHIBITS
Exhibit A-1 Form of PA Amendment
Exhibit A-2 Form of Indenture Amendment
Exhibit B Form of Delivery Notice
Exhibit C Form of Opinion of Hughes Hubbard & Reed LLP
Exhibit D Form of Opinion of the Continental Airlines Legal Department
Exhibit E Form of Opinion of Richards, Layton & Finger
Exhibit F Form of Opinion of Lytle Soule & Curlee
Exhibit G Additional Subordination Provisions for Series D Equipment Notes
NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT, dated as of July 31, 2001, among
(i)CONTINENTAL AIRLINES, INC., a Delaware corporation (the "COMPANY"),
(ii)WILMINGTON TRUST COMPANY ("WTC"), a Delaware banking corporation, not in its
individual capacity except as otherwise expressly provided herein, but solely as
trustee (in such capacity together with its successors in such capacity, the
"PASS THROUGH TRUSTEE") under the Pass Through Trust Agreement (as defined
below), (iii) WILMINGTON TRUST COMPANY, a Delaware banking corporation, as
subordination agent and trustee (in such capacity together with its successors
in such capacity, the "SUBORDINATION AGENT") under each of the Intercreditor
Agreements (as defined below), (iv) WELLS FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION, (formerly known as First Security Bank, National Association)
("WFB") a national banking association, as Escrow Agent (in such capacity
together with its successors in such capacity, the "ESCROW AGENT"), under the
Escrow and Paying Agent Agreement (as defined below) and (v) WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as Paying Agent (in such capacity
together with its successors in such capacity, the "PAYING AGENT") under the
Escrow and Paying Agent Agreement.
W I T N E S S E T H:
WHEREAS, capitalized terms used but not defined herein shall have
the meanings ascribed to such terms in Annex A hereto and each reference therein
to any agreement shall mean such agreement as at any time and from time to time
amended including, without limitation, each amendment to the Financing
Agreements contemplated hereby;
WHEREAS, under the terms of seven series of Continental Airlines
pass through certificates previously issued, the Series 1997-4, 1998-1, 1998-3,
1999-1, 1999-2, 2000-1 and 2000-2 (the "PRIOR SERIES"), the Company is entitled
to sell Series D Equipment Notes secured by aircraft financed under each Prior
Series;
WHEREAS, the Company has purchased the aircraft listed on Schedule I
hereto (the "OWNED AIRCRAFT") prior to the date of this Agreement 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 the Manufacturer
pursuant to the Aircraft Purchase Agreement for the delivery of the sixteen
aircraft listed in Schedule II hereto (together with any aircraft substituted
therefor in accordance with the Aircraft Purchase Agreement prior to the
delivery thereof, the "ELIGIBLE AIRCRAFT"), and the Company expects to purchase
after the date of this Agreement utilizing the proceeds of the sale of secured
equipment notes to be acquired by the pass through trustees under the 2000-2
Note Purchase Agreement and of the Series D Equipment Notes purchased pursuant
to this Agreement two of the ten Boeing 737-824 aircraft and two of the six
Boeing 737-924 Aircraft included in the Eligible Aircraft (such aircraft to be
financed hereunder, the "NEW AIRCRAFT");
WHEREAS, pursuant to the Basic Pass Through Trust Agreement and the
Trust Supplement No. 2001-2D-O (such Agreement, as so supplemented, the "PASS
THROUGH TRUST AGREEMENT"), a grantor trust (the "PASS THROUGH TRUST") has been
created to facilitate certain of the transactions contemplated hereby,
including, without limitation, the issuance and sale of Class D pass through
certificates pursuant thereto (collectively, the "CERTIFICATES");
WHEREAS, in connection with each Prior Series, the Subordination
Agent, the pass through trustees for such Prior Series and the liquidity
providers for such Prior Series entered into an Intercreditor Agreement for such
Prior Series, and such Intercreditor Agreements, which are listed on Schedule
III hereto (the "ORIGINAL INTERCREDITOR AGREEMENTS"), will be amended pursuant
to this Agreement to add the Pass Through Trustee as a party thereto and to
provide for the subordination of the Certificates with respect to Series D
Equipment Notes relating to the applicable Prior Series (as so amended, the
"INTERCREDITOR AGREEMENTS");
WHEREAS, the Company has entered into the Underwriting Agreement,
dated as of July 13, 2001 (the "UNDERWRITING AGREEMENT") with the underwriters
named therein (the "UNDERWRITERS") which provides that on the date of this
Agreement the Company will cause the Pass Through Trustee to issue and sell the
Certificates to the Underwriters;
WHEREAS, as required by the Note Purchase Agreement under each Prior
Series and the Underwriting Agreement, the Company has obtained confirmation
from the Rating Agencies that the terms of the Certificates will not result in a
withdrawal, suspension or downgrading of the ratings of the pass through
certificates of any Prior Series;
WHEREAS, pursuant to terms of the Pass Through Trust Agreement and
this Agreement, on the date of this Agreement the Pass Through Trustee will
purchase, and the Company will issue and sell, the Series D Equipment Notes in
the respective principal amounts listed on Schedule I hereto, which shall be
secured by, among other things, the related Owned Aircraft set forth on such
Schedule;
WHEREAS, (i) the Escrow Agent and the Depositary have entered into
the Deposit Agreement (the "DEPOSIT AGREEMENT") whereby the Escrow Agent agreed
to direct the Underwriters to make the deposits referred to therein on the
Issuance Date in the amount of the proceeds from the sale of the Certificates
not used to purchase Series D Equipment Notes on the Issuance Date (the "INITIAL
DEPOSITS") and to permit the Pass Through Trustee to make additional deposits
from time to time thereafter (the Initial Deposits together with such additional
deposits are collectively referred to as the "DEPOSITS") and (ii) the Pass
Through Trustee, Underwriters, Paying Agent and Escrow Agent have entered into
the Escrow and Paying Agent Agreement (the "ESCROW AND PAYING AGENT AGREEMENT")
whereby, among other things, (a) the Underwriters agreed to deliver an amount
equal to the amount of the Initial Deposits to the Depositary on behalf of the
Escrow Agent and (b) the Escrow Agent, upon the Depositary receiving such
amount, agreed to deliver escrow receipts to be affixed to each Certificate;
WHEREAS, prior to the financing of each New Aircraft, the Company
will give to the Pass Through Trustee a Delivery Notice (as defined below);
WHEREAS, upon receipt of a Delivery Notice with respect to a New
Aircraft, subject to the terms and conditions of this Agreement, the Pass
Through Trustee will enter into the Financing Agreements relating to such New
Aircraft; and
WHEREAS, upon the financing of each New Aircraft, the Pass Through
Trustee will fund its purchase of Series D Equipment Notes with the proceeds of
one or more Deposits withdrawn by the Escrow Agent under the Deposit Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements herein contained and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1A. SALE OF SERIES D EQUIPMENT NOTES ON THE ISSUANCE DATE.
(a) Subject to the satisfaction of the conditions set forth in Section 1A(b), at
the closing under the Underwriting Agreement, simultaneously with the purchase
and sale of the Certificates thereunder, the applicable parties hereto shall
take the following action:
(i) The Company and the Subordination Agent under each Original
Intercreditor Agreement shall enter into the Intercreditor Agreement Amendment
applicable to such Original Intercreditor Agreement;
(ii) The Company, the Pass Through Trustee, the applicable
Subordination Agent and the applicable Loan Trustee shall enter into a PA
Amendment with respect to each Owned Aircraft Participation Agreement;
(iii) The Company and the applicable Loan Trustee shall enter into
an Indenture Amendment with respect to each Owned Aircraft Indenture;
(iv) The Company shall issue pursuant to each Owned Aircraft
Indenture, as amended by the Indenture Amendment, a Series D Equipment Note in
the principal amount set forth on Schedule I hereto corresponding to such Owned
Aircraft Indenture and shall deliver each such Series D Equipment Note, against
receipt of the payment referred to in Section 1 A(a)(v), to the Subordination
Agent for the Prior Series relating to such Owned Aircraft Indenture, as set
forth on Schedule I hereto, to be held for the benefit of the Pass Through
Trustee in accordance with the applicable Intercreditor Agreement; and
(v) The Pass Through Trustee shall pay to the Company $194,004,524,
by wire transfer of immediately available funds.
(b) The obligations of the Pass Through Trustee, the Subordination
Agent and the Loan Trustees to take the actions set forth in Section 1A(a) are
subject to the fulfillment of the following conditions precedent:
(i) The Pass Through Trustee shall have received the following
documents:
(1) the broker's report and insurance certificates described in
Section E of Annex B of each Owned Aircraft Indenture with respect to
each Owned Aircraft;
(2) the following opinions of counsel, in each case dated the
Issuance Date:
(A) an opinion of Hughes Hubbard & Reed LLP, special counsel to
the Company, substantially in the form of Exhibit C;
(B) an opinion of the Company's Legal Department, substantially
in the form of Exhibit D;
(C) an opinion of Richards, Layton & Finger, special counsel to
the Loan Trustees, substantially in the form of Exhibit E;
and
(D) an opinion of Lytle Soule & Curlee, special counsel in
Oklahoma City, Oklahoma, substantially in the form of
Exhibit F.
(ii) The Loan Trustee with respect to each Owned Aircraft Indenture
shall be entitled to the benefits of Section 1110 (as currently in effect) with
respect to the right to take possession of the Owned Aircraft secured under such
Owned Aircraft Indenture and to enforce any of its other rights or remedies as
provided in the Owned Aircraft Indenture in the event of a case under Chapter 11
of the Bankruptcy Code in which the Company is a debtor.
(iii) On the Issuance Date the Indenture Amendments shall have been
duly filed for recordation (or shall be in the process of being so duly filed
for recordation) with the FAA in accordance with the Act.
SECTION 1. FINANCING OF NEW AIRCRAFT. (a) The Company confirms that
it has entered into the Aircraft Purchase Agreement with the Manufacturer
pursuant to which the Company has agreed to purchase, and the Manufacturer has
agreed to deliver, the Eligible Aircraft in the months specified in Schedule II
hereto, all on and subject to terms and conditions specified in the Aircraft
Purchase Agreement. The Company agrees to finance each New Aircraft that is
financed under the 2000-2 Note Purchase Agreement as an "Owned Aircraft" (as
defined therein) in the manner provided herein, all on and subject to the terms
and conditions hereof and of the relevant Financing Agreements.
(b) In furtherance of the foregoing, the Company agrees to give the
parties hereto, the Depositary and each of the Rating Agencies not less than two
Business Days' prior notice substantially in the form of Exhibit B hereto (a
"DELIVERY NOTICE") of the scheduled delivery date under the Aircraft Purchase
Agreement (the "SCHEDULED DELIVERY DATE") (or, in the case of a substitute
Delivery Notice under Section 1(e) or (f) hereof, one Business Day's prior
notice) in respect of each New Aircraft to be financed hereunder, which notice
shall:
(i) specify the Scheduled Delivery Date of such New Aircraft (which
shall be a Business Day before the Cut-off Date and, except as provided in
Section 1(f) hereof, the date (the "FUNDING DATE") on which the financing
therefor in the manner provided herein shall be consummated);
(ii) instruct the Pass Through Trustee to instruct the Escrow Agent
to provide a Notice of Purchase Withdrawal to the Depositary with respect to the
Series D Equipment Notes to be issued in connection with the financing of such
New Aircraft;
(iii) instruct the Pass Through Trustee to enter into the New
Participation Agreement included in the Financing Agreements with respect to
such New Aircraft in such form and at such a time on or before the Funding Date
specified in such Delivery Notice and to perform its obligations thereunder; and
(iv) specify the aggregate principal amount of the Series D
Equipment Notes to be issued, and purchased by the Pass Through Trustee, in
connection with the financing of such New Aircraft scheduled to be delivered on
such Funding Date (which shall in all respects comply with the Mandatory
Economic Terms).
(c) Upon receipt of a Delivery Notice, the Pass Through Trustee
shall, and shall cause the Subordination Agent to, enter into and perform their
obligations under the New Participation Agreement specified in such Delivery
Notice, PROVIDED that such New Participation Agreement and the New Indenture to
be entered into pursuant to such New Participation Agreement shall be in the
forms thereof annexed to the 2000-2 Note Purchase Agreement (modified as
provided in the PA Amendment and the Indenture Amendment, respectively) in all
material respects and, if modified in any material respect, as to which Rating
Agency Confirmation shall have been obtained from each Rating Agency by the
Company (to be delivered by the Company to the Pass Through Trustees on or
before the relevant Funding Date, it being understood that if Rating Agency
Confirmation shall have been received with respect to any Financing Agreements
and such Financing Agreements are utilized for subsequent New Aircraft (or
Substitute Aircraft) without material modifications, no additional Rating Agency
Confirmation shall be required); PROVIDED, HOWEVER, that the relevant Financing
Agreements as executed and delivered shall not vary the Mandatory Economic Terms
and shall contain the Mandatory Document Terms. The Company shall pay the
reasonable costs and expenses of the Rating Agencies in connection with
obtaining any such Rating Agency Confirmation. With respect to each New
Aircraft, the Company shall cause WTC (or such other person that meets the
eligibility requirements to act as loan trustee under the Indenture) to execute
as Loan Trustee the Financing Agreements relating to such New Aircraft to which
such Loan Trustee is intended to be a party, and shall concurrently therewith
execute such Financing Agreements to which the Company is intended to be a party
and perform its respective obligations thereunder. Upon the request of either
Rating Agency, the Company shall deliver or cause to be delivered to each Rating
Agency a true and complete copy of each Financing Agreement relating to the
financing of each New Aircraft together with a true and complete set of the
closing documentation (including legal opinions) delivered to the related Loan
Trustee, Subordination Agent and Pass Through Trustee under the related
Participation Agreement and a true and complete set of the closing documentation
(including legal opinions) delivered pursuant to Section 1A(b) of this
Agreement.
(d) [Intentionally omitted.]
(e) If after giving any Delivery Notice, there shall be a delay in
the delivery of the Eligible Aircraft referred to therein, or if on the
Scheduled Delivery Date of the Eligible Aircraft the financing thereof in the
manner contemplated hereby shall not be consummated for whatever reason, the
Company shall give the parties hereto prompt notice thereof. Concurrently with
the giving of such notice of postponement or subsequently, the Company may give
the parties hereto a substitute Delivery Notice specifying the date to which
delivery and related financing of such Eligible Aircraft or of another Eligible
Aircraft of the same type in lieu thereof shall have been re-scheduled (which
shall be a Business Day before the Cut-off Date on which the Escrow Agent shall
be entitled to withdraw one or more Deposits under the Deposit Agreement to
enable the Pass Through Trustee to fund its purchase of the Series D Equipment
Notes). Upon receipt of any such notice of postponement, the Pass Through
Trustee shall comply with its obligations under Section 5.01 of the Trust
Supplement and thereafter the financing of such Eligible Aircraft, as specified
in such substitute Delivery Notice, shall take place on the re-scheduled
Delivery Date therefor (all on and subject to the terms and conditions of the
relevant Financing Agreements) unless further postponed as provided herein.
(f) The Company shall have the right, anything in this Section 1 to
the contrary notwithstanding, to accept delivery of a New Aircraft under the
Aircraft Purchase Agreement on the Delivery Date thereof by utilization of
bridge financing of such New Aircraft and promptly thereafter give the parties
hereto a Delivery Notice specifying a Funding Date not later than 90 days after
the Delivery Date of such New Aircraft and no later than the Cut-off Date and
otherwise complying with the provisions of Section 1(b) hereof. All other terms
and conditions of this Note Purchase Agreement shall apply to the financing of
any such New Aircraft on the re-scheduled Funding Date therefor except (i) the
re-scheduled Funding Date shall be deemed the Delivery Date of such New Aircraft
for all purposes of this Section 1 and (ii) the related Financing Agreements
shall be amended to reflect the original delivery of such New Aircraft to the
Company.
(g) If the Scheduled Delivery Date for any Eligible Aircraft is
delayed (a) more than 30 days beyond the last day of the month set forth
opposite such Eligible Aircraft under the heading "Scheduled Delivery Months" in
Schedule II hereto or (b) beyond February 1, 2002, the Company may identify for
delivery a substitute aircraft therefor to be financed hereunder and under the
2000-2 Note Purchase Agreement and meeting the following conditions (a
"SUBSTITUTE AIRCRAFT"): (i) a Substitute Aircraft must be a Boeing 737-800 or
737-900 aircraft manufactured after the date of the 2000-2 Note Purchase
Agreement, (ii) one or more Substitute Aircraft of the same or different types
may be substituted for one or more Eligible Aircraft of the same or different
types so long as after giving effect thereto such substitution does not vary the
Mandatory Economic Terms and (iii) the Company shall be obligated to obtain
Rating Agency Confirmation in respect of the replacement of any Eligible
Aircraft by Substitute Aircraft. Upon the satisfaction of the conditions set
forth above with respect to a Substitute Aircraft, the Eligible Aircraft to be
replaced shall cease to be subject to this Agreement and all rights and
obligations of the parties hereto concerning such Eligible Aircraft shall cease,
and such Substitute Aircraft shall become and thereafter be subject to the terms
and conditions of this Agreement to the same extent as such Eligible Aircraft.
(h) The Company shall have no liability for the failure of the Pass
Through Trustee to purchase Series D Equipment Notes with respect to any New
Aircraft or Substitute Aircraft.
(i) Anything herein to the contrary notwithstanding, the Company
shall not have the right, and shall not be entitled, at any time to request the
issuance of Series D Equipment Notes to the Pass Through Trustee in an aggregate
principal amount in excess of the amount of the Deposits then available for
withdrawal by the Escrow Agent under and in accordance with the provisions of
the Deposit Agreement.
SECTION 2. CONDITIONS PRECEDENT. The obligation of the Pass Through
Trustee to enter into, and to cause the Subordination Agent to enter into, any
New Participation Agreement as directed pursuant to a Delivery Notice and to
perform its obligations thereunder is subject to satisfaction of the following
conditions:
(a) no Triggering Event shall have occurred; and
(b) the Company shall have delivered a certificate to the Pass
Through Trustee stating that (i) such New Participation Agreement and the other
Financing Agreements to be entered into pursuant to such New Participation
Agreement do not vary the Mandatory Economic Terms and contain the Mandatory
Document Terms, and (ii) any substantive modification of such Financing
Agreements from the forms of Financing Agreements contemplated by this Agreement
do not materially and adversely affect the Certificateholders, and such
certification shall be true and correct.
Anything herein to the contrary notwithstanding, the obligation of
the Pass Through Trustee to purchase the Series D Equipment Notes shall
terminate on the Cut-off Date.
SECTION 3. REPRESENTATIONS AND WARRANTIES. (a) The Company
represents and warrants that:
(i) the Company is duly incorporated, validly existing and in
good standing under the laws of the State of Delaware and is a
"citizen of the United States" as defined in Section 40102(a)(15) of
the Act, and has the full corporate power, authority and legal right
under the laws of the State of Delaware to execute and deliver this
Agreement, each Intercreditor Agreement Amendment, each PA Amendment,
each Indenture Amendment, each Series D Equipment Note referred to in
Section 1A hereof and each Financing Agreement (each of the foregoing
documents being herein called a "TRANSACTION DOCUMENT" and,
collectively, the "TRANSACTION DOCUMENTS") and to carry out the
obligations of the Company under each Transaction Document to which it
will be a party;
(ii) the execution and delivery by the Company of each
Transaction Document and the performance by the Company of its
obligations under each Transaction Document have been duly authorized
by the Company and will not violate its Certificate of Incorporation
or by-laws or the provisions of any indenture, mortgage, contract or
other agreement to which it is a party or by which it is bound;
(iii) this Agreement constitutes, and each other Transaction
Document when executed and delivered by the Company will constitute,
the legal, valid and binding obligation of the Company, enforceable
against it in accordance with its terms, except as the same may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally
and by general principles of equity, whether considered in a
proceeding at law or in equity;
(iv) Except for the filing for recordation (and recordation) of
the Indenture Amendments under the Act and the filing of continuation
statements or "in lieu" financing statements to continue the
effectiveness of the "Financing Statements" (as defined in each Owned
Aircraft Indenture), no further action, including any filing or
recording of any document (including any financing statement in
respect thereof under Article 9 of the UCC (as defined in the Owned
Aircraft Indentures)) is necessary in order to establish and perfect
the Loan Trustee's security interest in each Owned Aircraft as against
the Company and any other Person, in each case, in any applicable
jurisdictions in the United States;
(v) The Company is a "U.S. Air Carrier" (as defined in the Owned
Aircraft Indentures) and holds all licenses, permits and franchises
from the appropriate government entities necessary to authorize the
Company to lawfully engage in air transportation and to carry on
scheduled commercial passenger service as currently conducted, except
where the failure to so hold any such license, permit or franchise
would not give rise to a "Material Adverse Change" (as defined in the
Owned Aircraft Indentures) to the Company;
(vi) The Company is not an "investment company" or a company
controlled by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended;
(vii) Neither the Company nor any person authorized to act on its
behalf has directly or indirectly offered any beneficial interest or
Security (as defined in the Owned Aircraft Indentures) relating to the
ownership of the Owned Aircraft, or any of the Equipment Notes or any
other interest in or security under the Owned Aircraft Indentures, for
sale to, or solicited any offer to acquire any such interest or
security from, or has sold any such interest or security to, any
person in violation of the Securities Act of 1933, as amended; and
(viii) The Loan Trustee is entitled to the benefits of Section
1110 (as currently in effect) with respect to the right to take
possession of each Owned Aircraft and to enforce any of its other
rights or remedies as provided in the Owned Aircraft Indentures in the
event of a case under Chapter 11 of the Bankruptcy Code in which the
Company is a debtor.
(b) WTC represents and warrants that:
(i) WTC is duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and is a "citizen of
the United States" as defined in Section 40102(a)(15) of the Act, and
has the full corporate power, authority and legal right under the laws
of the State of Delaware and the United States pertaining to its
banking, trust and fiduciary powers to execute and deliver each
Transaction Document to which it will be a party and to carry out the
obligations of WTC, in its capacity as Subordination Agent, Pass
Through Trustee or Paying Agent, as the case may be, under each
Transaction Document to which it will be a party;
(ii) the execution and delivery by WTC, in its capacity as
Subordination Agent, Pass Through Trustee or Paying Agent, as the case
may be, of each Transaction Document and the performance by WTC, in
its capacity as Subordination Agent, Pass Through Trustee or Paying
Agent, as the case may be, of its obligations under each Transaction
Document have been duly authorized by WTC, in its capacity as
Subordination Agent, Pass Through Trustee or Paying Agent, as the case
may be, and will not violate its articles of association or by-laws or
the provisions of any indenture, mortgage, contract or other agreement
to which it is a party or by which it is bound; and
(iii) this Agreement constitutes, and each other Transaction
Document to which it will be a party when executed and delivered by
WTC will constitute, the legal, valid and binding obligations of WTC,
in its capacity as Subordination Agent, Pass Through Trustee or Paying
Agent, as the case may be, enforceable against it in accordance with
its terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and by general principles of equity,
whether considered in a proceeding at law or in equity.
(c) The Pass Through Trustee hereby confirms to each of the other
parties hereto that its representations and warranties set forth in Section 7.15
of the Basic Pass Through Trust Agreement and Section 5.04 of each Trust
Supplement are true and correct as of the date hereof.
(d) The Subordination Agent represents and warrants that:
(i) the Subordination Agent is duly incorporated, validly
existing and in good standing under the laws of the State of Delaware,
and has the full corporate power, authority and legal right under the
laws of the State of Delaware and the United States pertaining to its
banking, trust and fiduciary powers to execute and deliver each
Transaction Document to which it is or will be a party and to perform
its obligations under each Transaction Document to which it is or will
be a party;
(ii) this Agreement has been duly authorized, executed and
delivered by the Subordination Agent; this Agreement constitutes, and
each other Transaction Document to which it will be a party when
executed and delivered by it will constitute, the legal, valid and
binding obligations of the Subordination Agent enforceable against it
in accordance with its terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by
general principles of equity, whether considered in a proceeding at
law or in equity;
(iii) none of the execution, delivery and performance by the
Subordination Agent of any Transaction Document to which it is or will
be a party contravenes any law, rule or regulation of the State of
Delaware or any United States governmental authority or agency
regulating the Subordination Agent's banking, trust or fiduciary
powers or any judgment or order applicable to or binding on the
Subordination Agent and do not contravene the Subordination Agent's
articles of association or by-laws or result in any breach of, or
constitute a default under, any agreement or instrument to which the
Subordination Agent is a party or by which it or any of its properties
may be bound;
(iv) neither the execution and delivery by the Subordination
Agent of this Agreement or any other Transaction Document to which it
is or will be a party nor the consummation by the Subordination Agent
of any of the transactions contemplated hereby or thereby requires the
consent or approval of, the giving of notice to, the registration
with, or the taking of any other action with respect to, any Delaware
governmental authority or agency or any federal governmental authority
or agency regulating the Subordination Agent's banking, trust or
fiduciary powers;
(v) there are no Taxes payable by the Subordination Agent imposed
by the State of Delaware or any political subdivision or taxing
authority thereof in connection with the execution, delivery and
performance by the Subordination Agent of this Agreement or any other
Transaction Document to which it is or will be a party (other than
franchise or other taxes based on or measured by any fees or
compensation received by the Subordination Agent for services rendered
in connection with the transactions contemplated by the Intercreditor
Agreements or any of the Liquidity Facilities), and there are no Taxes
payable by the Subordination Agent imposed by the State of Delaware or
any political subdivision thereof in connection with the acquisition,
possession or ownership by the Subordination Agent of any of the
Series D Equipment Notes (other than franchise or other taxes based on
or measured by any fees or compensation received by the Subordination
Agent for services rendered in connection with the transactions
contemplated by the Intercreditor Agreements or any of the Liquidity
Facilities); and
(vi) there are no pending or threatened actions or proceedings
against the Subordination Agent before any court or administrative
agency which individually or in the aggregate, if determined adversely
to it, would materially adversely affect the ability of the
Subordination Agent to perform its obligations under this Agreement or
any other Transaction Document to which it is or will be a party.
(e) The Escrow Agent represents and warrants that:
(i) the Escrow Agent is a national banking association duly
incorporated, validly existing and in good standing under the laws of
the United States and has the full corporate power, authority and
legal right under the laws of the United States pertaining to its
banking, trust and fiduciary powers to execute and deliver this
Agreement, the Deposit Agreement and the Escrow and Paying Agent
Agreement (collectively, the "ESCROW AGENT AGREEMENTS") and to carry
out the obligations of the Escrow Agent under each of the Escrow Agent
Agreements;
(ii) the execution and delivery by the Escrow Agent of each of
the Escrow Agent Agreements and the performance by the Escrow Agent of
its obligations hereunder and thereunder have been duly authorized by
the Escrow Agent and will not violate its articles of association or
by-laws or the provisions of any indenture, mortgage, contract or
other agreement to which it is a party or by which it is bound; and
(iii) each of the Escrow Agent Agreements constitutes the legal,
valid and binding obligations of the Escrow Agent enforceable against
it in accordance with its terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by
general principles of equity, whether considered in a proceeding at
law or in equity.
(f) The Paying Agent represents and warrants that:
(i) the Paying Agent is duly incorporated, validly existing and
in good standing under the laws of the State of Delaware and has the
full corporate power, authority and legal right under the laws of the
United States pertaining to its banking, trust and fiduciary powers to
execute and deliver this Agreement and the Escrow and Paying Agent
Agreement (collectively, the "PAYING AGENT AGREEMENTS") and to carry
out the obligations of the Paying Agent under each of the Paying Agent
Agreements;
(ii) the execution and delivery by the Paying Agent of each of
the Paying Agent Agreements and the performance by the Paying Agent of
its obligations hereunder and thereunder have been duly authorized by
the Paying Agent and will not violate its articles of association or
by-laws or the provisions of any indenture, mortgage, contract or
other agreement to which it is a party or by which it is bound; and
(iii) each of the Paying Agent Agreements constitutes the legal,
valid and binding obligations of the Paying Agent enforceable against
it in accordance with its terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by
general principles of equity, whether considered in a proceeding at
law or in equity.
SECTION 4. COVENANTS. (a) The Company covenants with each of the
other parties hereto that:
(i) promptly upon the recordation of the Indenture Amendments
pursuant to the Act, the Company will cause Lytle Soule & Curlee, special
counsel in Oklahoma City, Oklahoma, to deliver to the Company, the Pass Through
Trustee and the Loan Trustee with respect to each Owned Aircraft Indenture a
favorable opinion or opinions addressed to each of them with respect to such
recordation;
(ii) subject to Section 4(a)(iv) of this Agreement, the Company
shall at all times maintain its corporate existence and shall not wind up,
liquidate or dissolve or take any action, or fail to take any action, that would
have the effect of any of the foregoing;
(iii) the Company shall at all times remain a U.S. Air Carrier (as
defined in the Financing Agreements) and shall at all times be otherwise
certificated and registered to the extent necessary to entitle the Loan Trustee
to the rights afforded to secured parties of aircraft equipment under Section
1110;
(iv) Section 4.07 of each Indenture is hereby incorporated by
reference herein;
(v) the Company agrees to provide written notice to each of the
parties hereto of the occurrence of the Cut-off Date no later than one Business
Day after the date thereof; such notice to refer specifically to the Pass
Through Trustee's obligation to assign, transfer and deliver all of its right,
title and interest to the Trust Property (as defined in the Pass Through Trust
Agreement) to the trustee of the Related Trust (as defined in the Pass Through
Trust Agreement) in accordance with Section 7.01 of each of the Trust
Supplements;
(vi) the Company agrees, for the benefit of the Subordination Agent
for each Prior Series, that if the Series D Equipment Notes issued pursuant to
any Indenture relating to such Prior Series and sold pursuant to this Agreement
have been repaid in full, the Company shall not thereafter issue new Series D
Equipment Notes under such Indenture (the "SUBSEQUENT D EQUIPMENT NOTES") unless
it shall have obtained written confirmation from each Rating Agency that the
issuance of such Subsequent D Equipment Notes will not result in (i) a reduction
of the rating for any class of pass through certificates of such Prior Series
below the then current rating for such class of pass through certificates or
(ii) a withdrawal or suspension of the rating of any class of pass through
certificates of such Prior Series. If any Subsequent D Equipment Notes are
initially issued to other than a pass through trustee that becomes a party to
the Intercreditor Agreement for such Prior Series, the Company will cause (i)
such Subsequent D Equipment Notes to be subject to the provisions of such
Intercreditor Agreement that allow the "Controlling Party" (as defined in such
Intercreditor Agreement), during the continuance of an "Indenture Default" (as
defined in such Intercreditor Agreement), to direct the Loan Trustee in taking
action under the applicable Indenture and (ii) the Indenture under which such
Subsequent D Equipment Notes are issued to include the provisions set forth in
Exhibit G to this Agreement;
(vii) the Company will use commercially reasonable efforts to file
on or before the Issuance Date "in lieu" financing statements with the Delaware
Secretary of State in order to continue the effectiveness of the "Financing
Statements" (as defined in each Owned Aircraft Indenture) under Revised Article
9 of the Uniform Commercial Code and, to the extent the Company does not make
such filing with respect to any Owned Aircraft Indenture by such time, it will
do so promptly after the Issuance Date (and in any event within 30 days
thereafter); and
(viii) the Company will promptly furnish to either Underwriter, the
Pass Through Trustee or any Subordination Agent, upon its written request,
copies of each Owned Aircraft Participation Agreement and Owned Aircraft
Indenture, PROVIDED that the Company shall be obligated to furnish such copies
to each Underwriter only once.
(b) WTC, in its individual capacity, covenants with each of the
other parties to this Agreement that it will, immediately upon obtaining
knowledge of any facts that would cast doubt upon its continuing status as a
"citizen of the United States" as defined in Section 40102(a)(15) of the Act and
promptly upon public disclosure of negotiations in respect of any transaction
which would or might adversely affect such status, notify in writing all parties
hereto of all relevant matters in connection therewith. Upon WTC giving any such
notice, WTC shall, subject to Section 9.01 of any Indenture then entered into,
resign as Loan Trustee in respect of such Indenture.
SECTION 5. NOTICES. Unless otherwise specifically provided herein,
all notices required or permitted by the terms of this Agreement shall be in
English and in writing, and any such notice shall become effective upon being
delivered personally or, if promptly confirmed by mail, when dispatched by
facsimile or other written telecommunication, addressed to such party hereto at
its address or facsimile number set forth below the signature of such party at
the foot of this Agreement.
SECTION 6. EXPENSES. So long as no Series D Equipment Notes have
been issued in respect of any New Aircraft, the Company agrees to pay (i) all
compensation and reimbursement of expenses, disbursements and advances payable
by the Company under the Pass Through Trust Agreement, and (ii) in the event the
Company requests any amendment to any Operative Agreement, all reasonable fees
and expenses (including, without limitation, fees and disbursements of counsel)
of the Escrow Agent and/or the Paying Agent in connection therewith.
SECTION 7. FURTHER ASSURANCES. Each party hereto shall duly execute,
acknowledge and deliver, or shall cause to be executed, acknowledged and
delivered, all such further agreements, instruments, certificates or documents,
and shall do and cause to be done such further acts and things, in any case, as
any other party hereto shall reasonably request in connection with its
administration of, or to carry out more effectually the purposes of, or to
better assure and confirm unto it the rights and benefits to be provided under,
this Agreement.
SECTION 8. MISCELLANEOUS. (a) Provided that the transactions
contemplated hereby have been consummated, and except as otherwise provided for
herein, the representations, warranties and agreements herein of the Company,
the Subordination Agent, the Escrow Agent, the Paying Agent and the Pass Through
Trustee, and the Company's, the Subordination Agent's, the Escrow Agent's, the
Paying Agent's and the Pass Through Trustee's obligations under any and all
thereof, shall survive the expiration or other termination of this Agreement and
the other agreements referred to herein.
(b) This Agreement may be executed in any number of counterparts
(and each of the parties hereto shall not be required to execute the same
counterpart). Each counterpart of this Agreement, including a signature page
executed by each of the parties hereto, shall be an original counterpart of this
Agreement, but all of such counterparts together shall constitute one
instrument. Neither this Agreement nor any of the terms hereof may be
terminated, amended, supplemented, waived or modified orally, but only by an
instrument in writing signed by the party against which the enforcement of the
termination, amendment, supplement, waiver or modification is sought. The index
preceding this Agreement and the headings of the various Sections of this
Agreement are for convenience of reference only and shall not modify, define,
expand or limit any of the terms or provisions hereof. The terms of this
Agreement shall be binding upon, and shall inure to the benefit of, the Company
and its successors and permitted assigns, the Pass Through Trustee and its
successors as Pass Through Trustee (and any additional trustee appointed) under
the Pass Through Trust Agreement, the Escrow Agent and its successors as Escrow
Agent under the Escrow and Paying Agent Agreement, the Paying Agent and its
successors as Paying Agent under the Escrow and Paying Agent Agreement and the
Subordination Agent and its successors as Subordination Agent under the
Intercreditor Agreements.
(c) This Agreement is not intended to, and shall not, provide any
person not a party hereto (other than the Underwriters and each of the
beneficiaries of Section 6 hereof) with any rights of any nature whatsoever
against any of the parties hereto, and no person not a party hereto (other than
the Underwriters and each of the beneficiaries of Section 6 hereof) shall have
any right, power or privilege in respect of, or have any benefit or interest
arising out of, this Agreement.
SECTION 9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THIS AGREEMENT
IS BEING DELIVERED IN THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized as of
the day and year first above written.
CONTINENTAL AIRLINES, INC.
By
----------------------------------------
Name:
Title:
Address: 1600 Smith Street
Dept. HQS-FN
Houston, TX 77002
Attention: Treasurer
Facsimile: (713) 324-2447
WILMINGTON TRUST COMPANY,
not in its individual capacity,
except as otherwise provided
herein, but solely as Pass Through
Trustee
By
----------------------------------------
Name:
Title:
Address: Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust
Administration
Facsimile: (302) 651-8882
WILMINGTON TRUST COMPANY,
not in its individual capacity,
except as otherwise provided
herein, but solely as
Subordination Agent under each of
the Intercreditor Agreements
By
----------------------------------------
Name:
Title:
Address: Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust
Administration
Facsimile: (302) 651-8882
WELLS FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
as Escrow Agent
By
----------------------------------------
Name:
Title:
Address: 79 South Main Street
Salt Lake City, Utah 84111
Attention: Corporate Trust
Department, 3rd Floor
Facsimile: (801) 246-5053
WILMINGTON TRUST COMPANY,
as Paying Agent
By
----------------------------------------
Name:
Title:
Address: Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust
Administration
Facsimile: (302) 651-8882
SCHEDULE I to
NOTE PURCHASE AGREEMENT
OWNED AIRCRAFT
OWNED AIRCRAFT
----------------------
U.S. Original Principal
Owned Aircraft Aircraft Reg. Prior Amount of Series D
INDENTURE MODEL NO. SERIES EQUIPMENT NOTES
- ---------------- ------------- ---------- ---------- ---------------------------
Trust
Indenture 656 Boeing 737-524 N11656 1997-4 $ 1,000
Trust
Indenture 657 Boeing 737-524 N23657 1997-4 1,000
Trust
Indenture 658 Boeing 737-524 N18658 1997-4 1,000
Trust
Indenture 659 Boeing 737-524 N15659 1997-4 1,000
Trust
Indenture 660 Boeing 737-524 N14660 1997-4 1,000
Trust
Indenture 664 Boeing 737-524 N14664 1998-1 492,617
Trust
Indenture 665 Boeing 737-524 N13665 1998-1 255,682
Trust
Indenture 667 Boeing 737-524 N14667 1998-1 7,611,401
Trust
Indenture 668 Boeing 737-524 N14668 1998-1 7,611,401
Trust
Indenture 226 Boeing 737-824 N26226 1998-1 1,000
Trust
Indenture 127 Boeing 757-224 N48127 1998-1 1,745,450
Trust
Indenture 128 Boeing 757-224 N17128 1998-1 1,000
Trust
Indenture 129 Boeing 757-224 N29129 1998-1 1,000
Trust
Indenture 130 Boeing 757-224 N19130 1998-1 1,000
OWNED AIRCRAFT
----------------------
U.S. Original Principal
Owned Aircraft Aircraft Reg. Prior Amount of Series D
INDENTURE MODEL NO. SERIES EQUIPMENT NOTES
- ---------------- ------------- ---------- ---------- ---------------------------
Trust
Indenture 132 Boeing 757-224 N33132 1998-1 $ 4,514,833
Trust
Indenture 717 Boeing 737-724 N29717 1998-3 5,117,659
Trust
Indenture 718 Boeing 737-724 N13718 1998-3 5,117,659
Trust
Indenture 719 Boeing 737-724 N17719 1998-3 898,492
Trust
Indenture 720 Boeing 737-724 N13720 1998-3 898,491
Trust
Indenture 721 Boeing 737-724 N23721 1998-3 898,491
Trust
Indenture 722 Boeing 737-724 N27722 1998-3 519,655
Trust
Indenture 723 Boeing 737-724 N21723 1998-3 519,655
Trust
Indenture 227 Boeing 737-824 N13227 1998-3 1,093,779
Trust
Indenture 134 Boeing 757-224 N67134 1998-3 480,732
Trust
Indenture 135 Boeing 757-224 N41135 1998-3 429,056
Trust
Indenture 136 Boeing 757-224 N19136 1998-3 379,326
Trust
Indenture 006 Boeing 777-224ER N77006 1998-3 1,857,715
Trust
Indenture 734 Boeing 737-724 N27734 1999-1 3,532,443
Trust
Indenture 228 Boeing 737-824 N14228 1999-1 6,833,055
Trust
Indenture 232 Boeing 737-824 N26232 1999-1 6,785,724
Trust
Indenture 235 Boeing 737-824 N14235 1999-1 3,744,342
OWNED AIRCRAFT
----------------------
U.S. Original Principal
Owned Aircraft Aircraft Reg. Prior Amount of Series D
INDENTURE MODEL NO. SERIES EQUIPMENT NOTES
- ---------------- ------------- ---------- ---------- ---------------------------
Trust
Indenture 009 Boeing 777-224ER N78009 1999-1 $ 26,085,789
Trust
Indenture 011 Boeing 777-224ER N79011 1999-1 22,753,430
Trust
Indenture 729 Boeing 737-724 N24729 1999-2 2,770,644
Trust
Indenture 732 Boeing 737-724 N16732 1999-2 2,742,152
Trust
Indenture 735 Boeing 737-724 N14735 1999-2 2,712,617
Trust
Indenture 736 Boeing 737-724 N24736 1999-2 2,712,617
Trust
Indenture 236 Boeing 737-824 N35236 1999-2 3,112,834
Trust
Indenture 240 Boeing 737-824 N14240 1999-2 3,471,816
Trust
Indenture 243 Boeing 737-824 N18243 1999-2 2,239,527
Trust
Indenture 246 Boeing 737-824 N27246 1999-2 2,238,278
Trust
Indenture 249 Boeing 737-824 N14249 1999-2 2,104,868
Trust
Indenture 137 Boeing 757-224 N34137 1999-2 1,000
Trust
Indenture 013 Boeing 777-224ER N78013 1999-2 6,038,022
Trust
Indenture 252 Boeing 737-824 N37252 2000-1 3,858,745
Trust
Indenture 253 Boeing 737-824 N37253 2000-1 3,951,584
Trust
Indenture 254 Boeing 737-824 N76254 2000-1 398,837
Trust
Indenture 139 Boeing 757-224 N17139 2000-1 1,000
OWNED AIRCRAFT
----------------------
U.S. Original Principal
Owned Aircraft Aircraft Reg. Prior Amount of Series D
INDENTURE MODEL NO. SERIES EQUIPMENT NOTES
- ---------------- ------------- ---------- ---------- ---------------------------
Trust
Indenture 140 Boeing 757-224 N41140 2000-1 $ 1,000
Trust
Indenture 141 Boeing 757-224 N19141 2000-1 1,000
Trust
Indenture 051 Boeing 767-424ER N66051 2000-1 8,304,820
Trust
Indenture 052 Boeing 767-424ER N67052 2000-1 5,733,621
Trust
Indenture 053 Boeing 767-424ER N59053 2000-1 158,387
Trust
Indenture 402 Boeing 737-924 N79402 2000-2 5,393,039
Trust
Indenture 403 Boeing 737-924 N38403 2000-2 678,463
Trust
Indenture 155 Boeing 767-224ER N68155 2000-2 7,294,641
Trust
Indenture 156 Boeing 767-224ER N76156 2000-2 7,224,225
Trust
Indenture 158 Boeing 767-224ER N67158 2000-2 1,000
Trust
Indenture 056 Boeing 767-424ER N66056 2000-2 10,673,910
SCHEDULE II to
NOTE PURCHASE AGREEMENT
ELIGIBLE AIRCRAFT AND SCHEDULED DELIVERY MONTHS
Expected
New Aircraft Registration Manufacturer's Scheduled
TYPE NUMBER SERIAL NUMBER DELIVERY MONTH
- ------------------ ------------------- ----------------------- -------------------------
Boeing 737-824 N37263 31583 August 2001
Boeing 737-824 N33264 31584 August 2001
Boeing 737-824 N76265 31585 August 2001
Boeing 737-824 N33266 32403 August 2001
Boeing 737-824 N37267 31586 September 2001
Boeing 737-824 N38268 31587 September 2001
Boeing 737-824 N76269 31588 October 2001
Boeing 737-824 N73270 31632 October 2001
Boeing 737-824 N35271 31589 November 2001
Boeing 737-824 N36272 31590 November 2001
Boeing 737-924 N72405 30122 August 2001
Boeing 737-924 N73406 30123 September 2001
Boeing 737-924 N37407 30124 September 2001
Boeing 737-924 N37408 30125 October 2001
Boeing 737-924 N75409 30126 November 2001
Boeing 737-924 N75410 30127 December 2001
SCHEDULE III to
NOTE PURCHASE AGREEMENT
ORIGINAL INTERCREDITOR AGREEMENTS
1. Intercreditor Agreement, dated as of October 23, 1997, among Wilmington
Trust Company, as Class A Trustee, Class B Trustee, and Class C Trustee
with respect to the Pass Through Certificates, Series 1997-4; ABN Amro Bank
N.V., acting through its Chicago branch, and Westdeutsche Landesbank
Girozentrale, acting through its New York branch, as Class A Liquidity
Providers, Class B Liquidity Providers and Class C Liquidity Providers (as
defined therein); and Wilmington Trust Company, as Subordination Agent and
trustee;
2. Intercreditor Agreement, dated as of February 20, 1998, among Wilmington
Trust Company, as Class A Trustee, Class B Trustee, and Class C Trustee
with respect to the Pass Through Certificates, Series 1998-1; AIG Matched
Funding Corp., as Class A Liquidity Provider, Class B Liquidity Provider
and Class C Liquidity Provider (as defined therein); and Wilmington Trust
Company, as Subordination Agent and trustee;
3. Intercreditor Agreement, dated as of November 3, 1998, among Wilmington
Trust Company, as Class A-1 Trustee, Class A-2 Trustee, Class B Trustee,
Class C-1 Trustee, and Class C-2 Trustee with respect to the Pass Through
Certificates, Series 1998-3; Westdeutsche Landesbank Girozentrale, acting
through its New York branch, as Class A-1 Liquidity Provider and Class A-2
Liquidity Provider (as defined therein); Morgan Stanley Capital Services,
Inc., as Class B Liquidity Provider, Class C-1 Liquidity Provider and Class
C-2 Liquidity Provider (as defined therein); and Wilmington Trust Company,
as Subordination Agent and trustee;
4. Intercreditor Agreement, dated as of February 8, 1999, among Wilmington
Trust Company, as Class A Trustee, Class B Trustee, and Class C Trustee
with respect to the Pass Through Certificates, Series 1999-1; Bayerische
Landesbank Girozentrale, as Class A Liquidity Provider, Class B Liquidity
Provider and Class C Liquidity Provider (as defined therein); and
Wilmington Trust Company, as Subordination Agent and trustee;
5. Intercreditor Agreement, dated as of June 17, 1999, among Wilmington Trust
Company, as Class A-1 Trustee, Class A-2 Trustee, Class B Trustee, Class
C-1 Trustee, and Class C-2 Trustee with respect to the Pass Through
Certificates, Series 1999-2; Bayerische Landesbank Girozentrale, as Class
A-1 Liquidity Provider, Class A-2 Liquidity Provider, Class B Liquidity
Provider, Class C-1 Liquidity Provider and Class C-2 Liquidity Provider (as
defined therein); and Wilmington Trust Company, as Subordination Agent and
trustee;
6. Intercreditor Agreement, dated as of March 15, 2000, among Wilmington Trust
Company, as Class A-1 Trustee, Class A-2 Trustee, Class B Trustee, Class
C-1 Trustee, and Class C-2 Trustee with respect to the Pass Through
Certificates, Series 2000-1; Credit Suisse First Boston, New York Branch,
as Class A-1 Liquidity Provider, Class A-2 Liquidity Provider and Class B
Liquidity Provider (as defined therein); Morgan Stanley Capital Services,
Inc., as Class C-1 Liquidity Provider and Class C-2 Liquidity Provider (as
defined therein); and Wilmington Trust Company, as Subordination Agent and
trustee; as amended by the Acknowledgment and Agreement, dated May 12,
2000, among the foregoing parties and Landesbank Hessen-Thuringen
Girozentrale, as replacement Class A-1 Liquidity Provider, replacement
Class A-2 Liquidity Provider and replacement Class B Liquidity Provider;
and
7. Intercreditor Agreement, dated as of November 28, 2000, among Wilmington
Trust Company, as Class A-1 Trustee, Class A-2 Trustee, Class B Trustee,
and Class C Trustee with respect to the Pass Through Certificates, Series
2000-2; Landesbank Hessen-Thuringen Girozentrale, as Class A-1 Liquidity
Provider, Class A-2 Liquidity Provider, Class B Liquidity Provider and
Class C Liquidity Provider (as defined therein); and Wilmington Trust
Company, as Subordination Agent and trustee.
SCHEDULE IV to
NOTE PURCHASE AGREEMENT
MANDATORY DOCUMENT TERMS
The following apply to the forms of New Indenture and New Participation
Agreement, as modified by the Indenture Amendment and PA Amendment,
respectively.
1. May not modify in any material adverse respect the Granting Clause of the
New Indenture so as to deprive the Note Holders of a first priority
security interest in and mortgage lien on the New Aircraft or to eliminate
any of the obligations secured thereby or otherwise modify in any material
adverse respect as regards the interests of the Note Holders, the 2000-2
Subordination Agent or the Loan Trustee the provisions of Article II or III
or Section 4.05(c), 5.01, 5.02, 6.02, 10.01(a), 11.04, 11.11, 11.12 or
11.13 of the New Indenture or the definition of "Make-Whole Amount" in
Annex A to the New Indenture.
2. May not modify in any material adverse respect as regards the interests of
the Note Holders, the 2000-2 Subordination Agent or the Loan Trustee the
provisions of Section 4.1.8, 4.1.9, 4.1.10, 4.1.11, 6.1.3(b), 6.3, 10,
12.8(a) or 12.9 of the New Participation Agreement, of the provisions of
Section 4.1.2(x) of the New Participation Agreement so as to eliminate the
requirement to deliver to the Loan Participant or the Loan Trustee, as the
case may be, the legal opinions to be provided to such Persons thereunder
(recognizing that the lawyers rendering such opinions may be changed) or of
the provisions of Section 6.4.5(a)(ii) of the New Participation Agreement
as regards the rights of the Loan Trustee thereunder or otherwise modify
the terms of the New Participation Agreement to deprive the Pass Through
Trustee, the 2000-2 Subordination Agent or the Loan Trustee of any
indemnity or right of reimbursement in its favor for Expenses or Taxes.
Notwithstanding the foregoing, any such Mandatory Document Term may be
modified to correct or supplement any such provision which may be defective
or to cure any ambiguity or correct any mistake, PROVIDED that any such
action shall not materially adversely affect the interests of the Note
Holders, the 2000-2 Subordination Agent, the Loan Trustee or the
Certificateholders.
SCHEDULE V to
NOTE PURCHASE AGREEMENT
MANDATORY ECONOMIC TERMS
SERIES D EQUIPMENT NOTES
Obligor: Continental
Principal Amount:
The principal amount of the Series D Equipment Notes issued (i) with respect to
each of the two Boeing 737-824 New Aircraft shall equal $2,467,894 and (ii) with
respect to each of the two Boeing 737-924 New Aircraft shall equal $529,844.
As of the Delivery Period Termination Date, the original aggregate principal
amount of all Series D Equipment Notes shall equal the original aggregate face
amount of the Certificates (assuming Series D Equipment Notes are acquired for
all New Aircraft).
Final Maturity Date: December 1, 2006, with no scheduled amortization. The final
expected distribution date of the Certificates shall be December 1, 2006.
Debt Rate (computed on the basis of a 360-day year consisting of twelve 30-day
months, payable semi-annually in arrears): 7.568%
Payment Due Rate: Debt Rate plus 2% per annum
Payment Dates: June 1 and December 1
Make-Whole Premium: As provided in Article II of the form of the New Indenture,
as amended by the Indenture Amendment (the "OWNED INDENTURE FORM")
Redemption: As provided in Article II of the Owned Indenture Form
All-risk hull insurance: With respect to each Owned Aircraft, not less than the
unpaid principal amount of the related Equipment Notes, together with six months
of interest accrued thereon, subject to Continental's right to self-insure on
terms no more favorable to Continental in any material respect than those set
forth in Section G of Annex B to the Owned Indenture Form.
PARTICIPATION AGREEMENT
Mortgagee, 2000-2 Subordination Agent, Pass Through Trustee, Escrow Agent and
Note Holder indemnified against Expenses and Taxes to the extent set forth in
Section 8 of the form of the New Participation Agreement, as amended by the PA
Amendment
ANNEX A to
NOTE PURCHASE AGREEMENT
DEFINITIONS
"ACT" means 49 U.S.C.ss.ss.40101-46507.
"AFFILIATE" means, with respect to any person, any other person directly or
indirectly controlling, controlled by or under common control with such person.
For purposes of this definition, "control" means the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such person, whether through the ownership of voting securities or by contract
or otherwise and "controlling," "controlled by" and "under common control with"
have correlative meanings.
"AIRCRAFT PURCHASE AGREEMENT" means the Purchase Agreement No. 1951 dated July
23, 1996, as amended, between the Company and the Manufacturer (including all
exhibits thereto, together with all letter agreements entered into that by their
terms constitute part of such Purchase Agreement).
"BANKRUPTCY CODE" means the United States Bankruptcy Code, 11 U.S.C.ss.ss.102 ET
SEQ.
"BASIC PASS THROUGH TRUST AGREEMENT" means the Pass Through Trust Agreement,
dated September 25, 1997, between the Company and WTC, as pass through trustee,
as such agreement may be supplemented, amended or modified, but does not include
any Trust Supplement.
"BUSINESS DAY" means any day, other than a Saturday, Sunday or other day on
which commercial banks are authorized or required by law to close in New York,
New York, Houston, Texas, Wilmington, Delaware or Salt Lake City, Utah.
"CERTIFICATES" has the meaning set forth in the fifth recital to the Note
Purchase Agreement.
"CERTIFICATEHOLDER" means the Person in whose name a Certificate is registered
in the Register.
"COMPANY" means Continental Airlines, Inc., a Delaware corporation.
"CORPORATE TRUST OFFICE" with respect to the Pass Through Trustee or any Loan
Trustee, means the office of such trustee in the city at which at any particular
time its corporate trust business shall be principally administered.
"CUT-OFF DATE" means the earlier of (a) the day after the Delivery Period
Termination Date and (b) the date on which a Triggering Event occurs.
"DELIVERY PERIOD TERMINATION DATE" means the earlier of (a) February 1, 2002,
or, if the Series D Equipment Notes relating to all of the New Aircraft (or
Substitute Aircraft in lieu thereof) have not been purchased by the Pass Through
Trustee on or prior to such date due to any reason beyond the control of the
Company and not occasioned by the Company's fault or negligence, May 1, 2002
(provided that, if a labor strike occurs or continues at the Manufacturer after
the Prior Issuance Date on or prior to either or both of such dates referred to
in this clause (a), such date or dates on or following the Prior Issuance Date
shall be extended by adding thereto the number of days that such strike
continued in effect after the Prior Issuance Date) and (b) the date on which
Series D Equipment Notes issued with respect to all of the New Aircraft (or
Substitute Aircraft in lieu thereof) have been purchased by the Pass Through
Trustee in accordance with the Note Purchase Agreement.
"DELIVERY DATE" means the Business Day on which a New Aircraft is delivered to
and accepted by the Company.
"DEPOSIT" has the meaning set forth in the tenth recital to the Note Purchase
Agreement.
"DEPOSIT AGREEMENT" has the meaning set forth in the tenth recital to the Note
Purchase Agreement.
"DEPOSITARY" means Credit Suisse First Boston, a banking institution organized
under the laws of Switzerland, acting through its New York branch.
"ELIGIBLE AIRCRAFT" has the meaning set forth in the fourth recital to the Note
Purchase Agreement.
"EQUIPMENT NOTES" means and includes any equipment notes issued under any
Indenture in the form specified in Section 2.01 thereof (as such form may be
varied pursuant to the terms of such Indenture or any related Indenture
Amendment) and any Equipment Note issued under any Indenture in exchange for or
replacement of any other Equipment Note.
"ESCROW AGENT" has the meaning set forth in the first paragraph of the Note
Purchase Agreement.
"ESCROW AND PAYING AGENT AGREEMENT" has the meaning set forth in the tenth
recital to the Note Purchase Agreement.
"FAA" means the Federal Aviation Administration of the United States.
"FINAL WITHDRAWAL" with respect to the Escrow and Paying Agent Agreement, has
the meaning set forth in Section 1.02 thereof.
"FINANCING AGREEMENTS" means, collectively, a Participation Agreement, an
Indenture and the Equipment Notes issued thereunder.
"GOVERNMENT ENTITY" means (a) any federal, state, provincial or similar
government, and any body, board, department, commission, court, tribunal,
authority, agency or other instrumentality of any such government or otherwise
exercising any executive, legislative, judicial, administrative or regulatory
functions of such government or (b) any other government entity having
jurisdiction over any matter contemplated by the Operative Agreements or
relating to the observance or performance of the obligations of any of the
parties to the Operative Agreements.
"INDENTURE" means a New Indenture or an Owned Aircraft Indenture.
"INDENTURE AMENDMENT" means an amendment to an Owned Aircraft Indenture
substantially in the form of Exhibit A-2 hereto.
"INTERCREDITOR AGREEMENT AMENDMENT" means, in the case of an Intercreditor
Agreement for a Prior Series, Amendment No. 1 to Intercreditor Agreement, dated
the Issuance Date, among the Company, the pass through trustees for such Prior
Series, the liquidity providers for such Prior Series and the Subordination
Agent, providing for, among other things, the Pass Through Trustee to become a
party to such Intercreditor Agreement.
"INTERCREDITOR AGREEMENTS" has the meaning set forth in the sixth recital to the
Note Purchase Agreement.
"ISSUANCE DATE" means the date of original issuance of the Certificates.
"LAW" means (a) any constitution, treaty, statute, law, decree, regulation,
order, rule or directive of any Government Entity, and (b) any judicial or
administrative interpretation or application of, or decision under, any of the
foregoing.
"LIQUIDITY FACILITY" means a "Liquidity Facility" as defined in any
Intercreditor Agreement.
"LIQUIDITY PROVIDER" means a "Liquidity Provider" as defined in any
Intercreditor Agreement.
"LOAN TRUSTEE" means the "Mortgagee" as defined in the Financing Agreements.
"MANDATORY DOCUMENT TERMS" means the terms set forth on Schedule IV to the Note
Purchase Agreement.
"MANDATORY ECONOMIC TERMS" means the terms set forth on Schedule V to the Note
Purchase Agreement.
"MANUFACTURER" means The Boeing Company, a Delaware corporation, solely in its
capacity as manufacturer or seller of New Aircraft.
"NEW AIRCRAFT" has the meaning set forth in the fourth recital to the Note
Purchase Agreement.
"NEW INDENTURE" means a Trust Indenture and Mortgage substantially in the form
of Exhibit C-2 to the 2000-2 Note Purchase Agreement.
"NEW PARTICIPATION AGREEMENT" means a Participation Agreement substantially in
the form of Exhibit C-1 to the 2000-2 Note Purchase Agreement.
"NOTE HOLDER" means the registered holder of a Series D Equipment Note.
"NOTE PURCHASE AGREEMENT" means the Note Purchase Agreement to which this Annex
A is attached.
"NOTICE OF PURCHASE WITHDRAWAL" with respect to the Deposit Agreement, has the
meaning set forth in Section 2.3 thereof.
"OPERATIVE AGREEMENTS" means, collectively, the Pass Through Trust Agreement,
the Escrow and Paying Agent Agreement, the Deposit Agreement, the Intercreditor
Agreements, the Series D Equipment Notes, the Certificates and the Financing
Agreements.
"ORIGINAL INTERCREDITOR AGREEMENTS" has the meaning set forth in the sixth
recital to the Note Purchase Agreement.
"OWNED AIRCRAFT" has the meaning set forth in the third recital to the Note
Purchase Agreement.
"OWNED AIRCRAFT INDENTURE" means, in the case of any Owned Aircraft, the
indenture corresponding thereto listed on Schedule I to the Note Purchase
Agreement, as amended by the related Indenture Amendment and, in the case Trust
Indenture 656, Trust Indenture 657, Trust Indenture 667, Trust Indenture 668 and
Trust Indenture 718, as previously amended by Amendment No. 1 thereto dated
November 9, 1998, November 9, 1998, March 22, 1999, March 22, 1999 and August
30, 1999, respectively.
"OWNED AIRCRAFT PARTICIPATION AGREEMENT" means, in the case of any Owned
Aircraft, the "Participation Agreement" as defined in the Owned Aircraft
Indenture corresponding to such Owned Aircraft, as amended by the related PA
Amendment.
"PA AMENDMENT" means an amendment to an Owned Aircraft Participation Agreement
substantially in the form of Exhibit A-1 hereto.
"PARTICIPATION AGREEMENT" means a New Participation Agreement or an Owned
Aircraft Participation Agreement.
"PASS THROUGH TRUST" has the meaning set forth in the fifth recital to the Note
Purchase Agreement.
"PASS THROUGH TRUST AGREEMENT" has the meaning set forth in the fifth recital to
the Note Purchase Agreement.
"PASS THROUGH TRUSTEE" has the meaning set forth in the first paragraph of the
Note Purchase Agreement.
"PAYING AGENT" has the meaning set forth in the first paragraph of the Note
Purchase Agreement.
"PERSON" means any individual, firm, partnership, joint venture, trust, trustee,
Government Entity, organization, association, corporation, limited liability
company, government agency, committee, department, authority and other body,
corporate or incorporate, whether having distinct legal status or not, or any
member of any of the same.
"PRIOR ISSUANCE DATE" means November 28, 2000.
"PRIOR SERIES" has the meaning set forth in the second recital to the Note
Purchase Agreement.
"PROSPECTUS SUPPLEMENT" means the final Prospectus Supplement, dated July 13,
2001, to the Prospectus, dated March 23, 2001, of the Company relating to the
offering of the Certificates.
"RATING AGENCIES" means, collectively, at any time, each nationally recognized
rating agency which shall have been requested to rate the Certificates and which
shall then be rating the Certificates. The initial Rating Agencies will be
Moody's Investors Service, Inc. and Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc.
"RATING AGENCY CONFIRMATION" means, with respect to (1) any Financing Agreement
that has been modified in any material respect from the forms thereof attached
to the Note Purchase Agreement or (2) a Substitute Aircraft, a written
confirmation from each of the Rating Agencies that (1) the use of such Financing
Agreement with such modifications or (2) the substituting of such Substitute
Aircraft for an Eligible Aircraft, respectively, whichever of the foregoing
shall in a particular case require Rating Agency Confirmation, would not result
in (i) a reduction of the rating for the Certificates below the then current
rating for the Certificates or (ii) a withdrawal or suspension of the rating of
the Certificates.
"REGISTER" means the register maintained pursuant to Sections 3.04 and 7.12 of
the Basic Pass Through Trust Agreement with respect to each Pass Through Trust.
"REGULAR DISTRIBUTION DATES" shall mean June 1 and December 1 of each year,
commencing December 1, 2001.
"SECTION 1110" means 11 U.S.C. ss. 1110 of the Bankruptcy Code or any successor
or analogous Section of the federal bankruptcy Law in effect from time to time.
"SERIES D EQUIPMENT NOTES" means Equipment Notes issued under an Indenture and
designated as "Series D" thereunder, if any.
"SUBORDINATION AGENT" has the meaning set forth in the first paragraph of the
Note Purchase Agreement.
"SUBSTITUTE AIRCRAFT" has the meaning set forth in Section 1(g) of the Note
Purchase Agreement.
"TAXES" means all license, recording, documentary, registration and other
similar fees and all taxes, levies, imposts, duties, charges, assessments or
withholdings of any nature whatsoever imposed by any Taxing Authority, together
with any penalties, additions to tax, fines or interest thereon or additions
thereto.
"TAXING AUTHORITY" means any federal, state or local government or other taxing
authority in the United States, any foreign government or any political
subdivision or taxing authority thereof, any international taxing authority or
any territory or possession of the United States or any taxing authority
thereof.
"TRANSACTION DOCUMENT" has the meaning set forth in Section 3(a)(i).
"TRIGGERING EVENT" means a "Triggering Event" as defined in any Intercreditor
Agreement.
"2000-2 NOTE PURCHASE AGREEMENT" means the Note Purchase Agreement, dated as of
November 28, 2000, among the Company, WTC, as pass through trustee under the
pass through trust agreements referred to therein, WTC, as subordination agent,
WFB, as escrow agent, and WTC, as paying agent.
"2000-2 SUBORDINATION AGENT" means the Subordination Agent with respect to the
Intercreditor Agreement for the Continental Airlines pass through certificates,
Series 2000-2.
"UNDERWRITING AGREEMENT" has the meaning set forth in the seventh recital to the
Note Purchase Agreement.
"UNDERWRITERS" has the meaning set forth in the seventh recital to the Note
Purchase Agreement.
"WFB" has the meaning set forth in the first paragraph of the Note Purchase
Agreement.
"WTC" has the meaning set forth in the first paragraph of the Note Purchase
Agreement.
EXHIBIT A-1 to
NOTE PURCHASE AGREEMENT
FORM OF PA AMENDMENT
[Filed Separately]
EXHIBIT A-2 to
NOTE PURCHASE AGREEMENT
FORM OF INDENTURE AMENDMENT
[Filed Separately]
EXHIBIT B to
NOTE PURCHASE AGREEMENT
DELIVERY NOTICE
Dated as of [__________]
To each of the addressees listed
in Schedule A hereto
RE: DELIVERY NOTICE IN ACCORDANCE WITH NOTE PURCHASE
AGREEMENT REFERRED TO BELOW
------------------------------------------------
Gentlemen:
Reference is made to the Note Purchase Agreement, dated as of July
31, 2001, among Continental Airlines, Inc. (the "COMPANY"), Wilmington Trust
Company, as Pass Through Trustee under the Pass Through Trust Agreement (as
defined therein) (the "PASS THROUGH TRUSTEE"), Wilmington Trust Company, as
Subordination Agent under each of the Intercreditor Agreements (as defined
therein) (the "SUBORDINATION AGENT"), Wells Fargo Bank Northwest, National
Association, as Escrow Agent (the "ESCROW AGENT") and Wilmington Trust Company,
as Paying Agent (the "PAYING AGENT") (as in effect from time to time, the "NOTE
PURCHASE AGREEMENT"). Unless otherwise defined herein, capitalized terms used
herein shall have the meanings set forth in the Note Purchase Agreement.
Pursuant to Sections 1(b) of the Note Purchase Agreement, the
undersigned hereby notifies you, in respect of the Boeing [_______] aircraft
with manufacturer's serial number [______] (the "AIRCRAFT"), of the following:
(1) The Scheduled Delivery Date of the Aircraft is [_________];
(2) The Funding Date for the Aircraft shall be [__________]; and
(3) The aggregate amount of Series D Equipment Notes to be issued, and
purchased by the Pass Through Trustee, on the Funding Date in connection
with the financing of such Aircraft is as follows: $[__________]
The Company hereby instructs the Pass Through Trustee to (i) execute
a Withdrawal Certificate in the form of Annex A hereto dated as of [__________]
and attach thereto a Notice of Purchase Withdrawal dated such date completed as
set forth on Exhibit A hereto and (ii) deliver such Withdrawal Certificate and
Notice of Purchase Withdrawal to the Escrow Agent.
The Company hereby instructs the Pass Through Trustee to (i)
purchase Series D Equipment Notes in an amount set forth in clause (3) above
with a portion of the proceeds of the withdrawals of Deposits referred to in the
applicable Notice of Purchase Withdrawal referred to above and (ii) re-deposit
with the Depositary the excess, if any, of the amount so withdrawn OVER the
purchase price of such Series D Equipment Notes.
The Company hereby instructs the Pass Through Trustee to (a) enter
into the Participation Agreement [____] dated as of [__________] among the
Company and Wilmington Trust Company, as Mortgagee and Loan Participant, (b)
perform its obligations thereunder and (c) deliver such certificates, documents
and legal opinions relating to such Pass Through Trustee as required thereby.
Yours faithfully,
Continental Airlines, Inc.
By:
-------------------------------------
Name:
Title:
SCHEDULE A
Wilmington Trust Company, as
Pass Through Trustee, Subordination
Agent and Mortgagee
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Facsimile: (302) 651-8882
Wells Fargo Bank Northwest, National Association,
as Escrow Agent
79 South Main Street, 3rd Floor
Salt Lake City, Utah 84111
Attention: Corporate Trust Department
Facsimile: (801) 246-5053
Standard & Poor's Ratings Services
55 Water Street, 35th Floor
New York, New York 10004
Attention: Michael K. Vernier
Facsimile: (212) 438-6632
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: Richard Bittenbender
Facsimile: (212) 553-3855
Annex A
WITHDRAWAL CERTIFICATE
(Class ___)
Wells Fargo Bank Northwest, National Association,
as Escrow Agent
Ladies and Gentlemen:
Reference is made to the Escrow and Paying Agent Agreement, dated as
of July 31, 2001 (the "Agreement"). We hereby certify to you that the conditions
to the obligations of the undersigned to execute a Participation Agreement
pursuant to the Note Purchase Agreement have been satisfied. Pursuant to Section
1.02(c) of the Agreement, please execute the attached Notice of Withdrawal and
immediately transmit by facsimile to the Depositary, at (212) 325-8319.
Capitalized terms used herein but not defined herein shall have the
meanings set forth in the Agreement.
Very truly yours,
WILMINGTON TRUST COMPANY,
not in its individual capacity by solely as Pass
Through Trustee
By:
---------------------------------------------
Name:
Title:
Dated: As of [__________]
Exhibit A
NOTICE OF PURCHASE WITHDRAWAL
CREDIT SUISSE FIRST BOSTON
New York Branch
11 Madison Avenue
New York, NY 10010
Attention: Robert Finney
Telecopier: 212-325-8319
Gentlemen:
Reference is made to the Deposit Agreement dated as of July 31, 2001
(the "DEPOSIT AGREEMENT") between Wells Fargo Bank Northwest, National
Association, as Escrow Agent, and Credit Suisse First Boston, New York branch,
as Depositary (the "DEPOSITARY").
In accordance with Section 2.3(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the Deposit,
$[_______], Account No. [____].
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposit to [___________________], Account No. ____, Reference: _________] on
________ __, 20___, upon the telephonic request of a representative of the Pass
Through Trustee.
WELLS FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
as Escrow Agent
By
--------------------------------------
Name:
Title:
Dated: As of [__________]
EXHIBIT G to
NOTE PURCHASE AGREEMENT
Subordination. (a) As between the Note Holders, this Trust Indenture
shall be a subordination agreement for purposes of Section 510 of the United
States Bankruptcy Code, as amended from time to time.
(b) If any Note Holder receives any payment in respect of any
obligations owing hereunder, which is subsequently invalidated, declared
preferential, set aside and/or required to be repaid to a trustee, receiver or
other party, then, to the extent of such payment, such obligations intended to
be satisfied shall be revived and continue in full force and effect as if such
payment had not been received.
(c) Each of the Note Holders may take any of the following actions
without impairing its rights under this Trust Indenture:
(i) obtain a Lien on any property to secure any amounts owing to it
hereunder,
(ii) obtain the primary or secondary obligation of any other obligor
with respect to any amounts owing to it hereunder,
(iii) renew, extend, increase, alter or exchange any amounts owing
to it hereunder, or release or compromise any obligation of any obligor
with respect thereto,
(iv) refrain from exercising any right or remedy, or delay in
exercising such right or remedy, which it may have, or
(v) take any other action which might discharge a subordinated party
or a surety under applicable law;
provided, however, that the taking of any such actions by any of the Note
Holders shall not prejudice the rights or adversely affect the obligations of
any other party under this Trust Indenture.
AMENDMENT NO. 1
TO
PARTICIPATION AGREEMENT [___]
Amendment No. 1, dated as of [_____], between Continental Airlines,
Inc. ("OWNER") and Wilmington Trust Company ("WTC"), not in its individual
capacity, except as expressly provided therein, but solely as Mortgagee
("MORTGAGEE"), Subordination Agent under the Intercreditor Agreement
("SUBORDINATION AGENT"), Pass Through Trustee under each of the Applicable Pass
Through Agreements (each, an "APPLICABLE PASS THROUGH TRUSTEE") and the Class D
Pass Through Trustee, to Participation Agreement [___], dated as of [__________]
(the "PARTICIPATION AGREEMENT"), between Owner and WTC, as Mortgagee,
Subordination Agent and the Applicable Pass Through Trustees.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Owner, Mortgagee, Subordination Agreement and each
Applicable Pass Through Trustee entered into the Participation Agreement; and
WHEREAS, Owner has elected to issue the Series D Equipment Notes as
permitted by the related Trust Indenture, dated as of the date of the
Participation Agreement (the "TRUST INDENTURE"), and in connection with such
issuance, Owner has requested certain amendments to the Participation Agreement
and the Trust Indenture.
NOW, THEREFORE, in consideration of the premises and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined or provided herein,
terms used herein that are defined in the Trust Indenture, as amended as of the
date of this Amendment, have such respective defined meanings.
SECTION 2. AMENDMENTS.
SECTION 2.1 AGREEMENTS
(a) Sections 6.2, 6.2.2, 6.3.2(b)(i), 6.4.1, 6.4.2 and 6.4.3 are
amended to insert after "Pass Through Trustee" in each instance the following:
", the Class D Pass Through Trustee".
(b) Section 6.2.3 is amended to insert after "Pass Through Trustee
Agreements" the following: ", the Class D Pass Through Trust Agreement".
(c) Section 6.3.2(b) is amended to insert (i) after "Pass Through
Trustee" the following: "or Class D Pass Through Trustee" and (ii) after "Pass
Through Trustee Agreement" in each instance the following: "or, in the case of
the Class D Pass Through Trust, the Class D Pass Through Trust Agreement".
(d) Section 6.4.4 is amended to insert at the end thereof the
following:
"The preceding sentence shall not limit the rights of the Related
Note Holders with respect to Related Secured Obligations under the Trust
Indenture, PROVIDED that a Related Note Holder shall not, as such, have any
further interest in, or other right with respect to, the Collateral when and if
the Related Secured Obligations attributable to the Related Equipment Note held
by such Holder shall have been paid in full."
SECTION 2.2 INDEMNIFICATION
(a) Section 8.1.1(c) is amended by inserting after "Pass Through
Certificates" the following: ", the Class D Pass Through Certificates".
(b) Section 8.1.2(j) is amended to delete "and" before clause (xi)
and to insert after "Escrow Agreement" at the end of clause (xi) the following:
", (xii) with respect to any Indemnitee (other than the Class D Pass Through
Trustee), to the extent attributable to the failure of the Class D Pass Through
Trustee to distribute funds received and distributable by it in accordance with
the Class D Pass Through Trust Agreement, (xiii) with respect to the Class D
Pass Through Trustee, to the extent attributable to the negligence or willful
misconduct of the Class D Pass Through Trustee in the distribution of funds
received and distributable by it in accordance with the Class D Pass Through
Trust Agreement; [2000-2 only: (xiv) with respect to any Indemnitee (other than
the Class D Escrow Agent), to the extent attributable to the failure of the
Class D Escrow Agent to pay funds received and payable by it in accordance with
the Class D Escrow Agreement, (xv) with respect to any Indemnitee (other than
the Class D Paying Agent), to the extent attributable to the failure of the
Class D Paying Agent to distribute funds received and distributable by it in
accordance with the Class D Escrow Agreement, (xvi) to the extent attributable
to the failure of the Class D Depositary to pay funds payable by it in
accordance with the Class D Deposit Agreement, (xvii) with respect to the Class
D Escrow Agent, to the extent attributable to the negligence or willful
misconduct of the Class D Escrow Agent in the payment of funds received and
payable by it in accordance with the Class D Escrow Agreement, and (xviii) with
respect to the Class D Paying Agent, to the extent attributable to the
negligence or willful misconduct of the Class D Paying Agent in the distribution
of funds received and distributed by it in accordance with the Class D Escrow
Agreement;"]
(c) Section 8.3.2(b) is amended by inserting in clause (V) after
"Pass Through Trustees," the following: "the Class D Pass Through Trustee,".
(d) Section 8.3.2(c) is amended by inserting after "Pass Through
Trustee," the following: "the Class D Pass Through Trustee,".
SECTION 2.3 TRANSFER
Section 9.1 is amended by inserting after "Pass Through Trustee" in
the parenthetical phrase the following: "or the sale or issuance of pass through
certificates by the Class D Pass Through Trustee".
SECTION 3. ADDITIONAL PARTY. By signing below, the Class D Pass
Through Trustee shall be deemed a party to the Participation Agreement.
SECTION 4. CONSTRUCTION. Effective as of the date hereof, all
references in the Participation Agreement to the "Participation Agreement" shall
be deemed to refer to the Participation Agreement as amended by this Amendment,
and the parties hereto confirm their respective obligations thereunder. Except
as otherwise specified in this Amendment, the Participation Agreement shall
remain in all respects unchanged and in full force and effect.
SECTION 5. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the law of the State of New York.
SECTION 6. COUNTERPARTS. This Amendment may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective officers thereunto duly authorized, as of
the date and year first above written.
CONTINENTAL AIRLINES, INC.
By
---------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual
capacity, but solely as
Mortgagee
By
---------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity, except as
expressly provided, but solely as Pass
Through Trustee under the Pass Through
Trust Agreement for the Continental Airlines
Pass Through Trust, 2000-2A-1-0
By
---------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity, except as
expressly provided, but solely as Pass
Through Trustee under the Pass Through
Trust Agreement for the Continental Airlines
Pass Through Trust, 2000-2A-2-0
By
---------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity, except as
expressly provided, but solely as Pass
Through Trustee under the Pass Through
Trust Agreement for the Continental Airlines
Pass Through Trust, 2000-2B-0
By
---------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity, except as
expressly provided, but solely as Pass
Through Trustee under the Pass Through
Trust Agreement for the Continental Airlines
Pass Through Trust, 2000-2C-0
By
---------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity, except as
expressly provided, but solely as Pass
Through Trustee under the Pass Through
Trust Agreement for the Continental Airlines
Pass Through Trust, 2001-2D
By
---------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity, except as
expressly provided, but solely as
Subordination Agent
By
---------------------------------------------
Name:
Title:
AMENDMENT NO. 1
TO
TRUST INDENTURE AND MORTGAGE [___]
Amendment No. 1, dated as of [_____], to Trust Indenture and
Mortgage [___], dated as of [____________] (the "TRUST INDENTURE"), between
Continental Airlines, Inc. ("OWNER"), Wilmington Trust Company, in its
individual capacity acting as a "securities intermediary" and Eligible
Institution (the "SECURITIES INTERMEDIARY"), and Wilmington Trust Company, not
in its individual capacity, except as expressly stated therein, but solely as
Mortgagee ("MORTGAGEE").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Owner and Mortgagee entered into the Trust Indenture and
Trust Indenture and Mortgage [___] Supplement No. 1, dated [____________], which
were recorded as one instrument by the FAA on [____________] and were assigned
Conveyance No. [__]; and
WHEREAS, Owner has elected to issue the Series D Equipment Notes as
permitted by the Trust Indenture, and in connection with such issuance, Owner
has requested certain amendments to the Trust Indenture pursuant to Section
10.01(b)(vii) of the Trust Indenture.
NOW, THEREFORE, in consideration of the premises and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined or provided herein,
terms used herein that are defined in the Trust Indenture, as amended by this
Amendment, have such respective defined meanings.
SECTION 2. AMENDMENTS.
SECTION 2.1 GRANTING CLAUSE.
The Granting Clause is amended by inserting after "to secure the
performance and observance by the Owner of all the agreements, covenants and
provisions contained herein and in the Participation Agreement and in the
Equipment Notes" the following: "and to secure the Related Secured Obligations
and the performance and observance by the Owner of all agreements, covenants and
provisions contained in the Related Equipment Notes".
SECTION 2.2. FORM OF EQUIPMENT NOTES.
(a) The form of Equipment Note included in Section 2.01 is amended
by deleting in footnotes 1, 2 and 7 "Series A-2 or Series C-2 Equipment Notes"
in each such footnote and inserting in lieu thereof "Series A-2, Series C-2 or
Series D Equipment Notes". [References to Series A-1, A-2, C-1 and C-2 to be
modified as appropriate for each Prior Series]
(b) The form of Equipment Note is further amended to insert in the
third sentence of the first paragraph a footnote "2A" at the end thereof and to
insert at the bottom of the page on which footnote 2A appears in the text the
following:
"2A. In the case of Series D Equipment Notes, this sentence shall
read as follows: `Accrued but unpaid interest shall be due and payable in
semiannual installments commencing on December 1, 2001, and thereafter on June 1
and December 1 of each year, to and including [_____].'"
(c) The form of Equipment Note is further amended by inserting in
the third and fourth sentences of the seventh paragraph after "to the Trust
Indenture" the following: "[and the Related Indentures]2B".
(d) The form of Equipment Note is further amended by inserting in
the fourth sentence of the seventh paragraph after "the security for, this
Equipment Note" the following "[(including as a "Related Equipment Note" under
each of the Related Indentures)]2B".
(e) The form of Equipment Note is further amended by inserting at
the bottom of the page on which footnote 2B appears in the text the following:
"2B. To be inserted in the case of Series D Equipment Notes."
SECTION 2.3 ISSUANCE AND TERMS OF EQUIPMENT NOTES.
(a) Section 2.02 is amended to add the following at the end of the
first paragraph: "If Series D Equipment Notes are issued hereunder and
subsequently repaid in full, Owner shall thereafter have the option to again
issue Series D Equipment Notes on the same or different terms, subject to the
terms of the Class D Note Purchase Agreement (including without limitation
Section 4(a)(vi) of the Class D Note Purchase Agreement)."
(b) Section 2.02 is further amended by inserting at the end of the
first sentence of the second paragraph the following:
"(or, in the case of the Series D Equipment Notes, payable in arrears
on December 1, 2001, and on each June 1 and December 1 thereafter
until maturity)".
(c) Section 2.02 is further amended by deleting the parenthetical in
clause (i) of the second sentence of the second paragraph and substituting
therefor: "(or, in the case of the Series D Equipment Notes, as set forth in an
amendment to this Trust Indenture)".
(d) Section 2.02 is further amended by inserting at the end of the
third paragraph the following: "The Owner agrees to pay to the Mortgagee for
distribution in accordance with Section 3.04 hereof Owner's Class D Share of
[(i)] all compensation and reimbursement of expenses, disbursements and advances
payable by Owner under the Class D Pass Through Trust Agreement [and (ii) in the
event Owner requests any amendment to any Operative Agreement, any Pass Through
Agreement, the Class D Pass Through Trust Agreement or the Class D Note Purchase
Agreement, all reasonable fees and expenses (including without limitation, fees
and disbursements of counsel) of the "Escrow Agent" and "Paying Agent" (as such
terms are defined in the Class D Note Purchase Agreement) in connection
therewith payable by the Class D Pass Through Trustee under the Class D Escrow
Agreement.] [2000-2 only] As used herein, "Owner's Class D Share" means as of
any time a fraction, the numerator of which is the principal balance then
outstanding of Series D Equipment Notes and the denominator of which is the
aggregate principal balance then outstanding of the Series D Equipment Notes and
all Related Equipment Notes.
(e) Section 2.02 is further amended by inserting at the end of the
last sentence of such Section the following: "(or, in the case of the Series D
Equipment Notes, as set forth in an amendment to this Trust Indenture)".
SECTION 2.4 TERMINATION OF INTEREST IN COLLATERAL.
Section 2.06 is amended by inserting after "and under the other
Operative Agreements by the Owner" the following: "and all Related Secured
Obligations".
SECTION 2.5 MANDATORY REDEMPTION OF EQUIPMENT NOTES.
Section 2.10 is amended by inserting after "and all other Secured
Obligations" the following: "(other than Related Secured Obligations)".
SECTION 2.6 VOLUNTARY REDEMPTIONS OF EQUIPMENT NOTES.
Section 2.11 is amended by inserting after "and all other Secured
Obligations" the following: "(other than Related Secured Obligations)".
SECTION 2.7 SUBORDINATION.
(a) Section 2.13(a) is amended and restated to read in its entirety
as follows:
"(a) The Owner, each Note Holder (by acceptance of its Equipment
Notes of any Series) and each Related Note Holder (by acceptance of its Related
Equipment Note), hereby agree that no payment or distribution shall be made on
or in respect of the Secured Obligations owed to such Note Holder of such Series
or owed to such Related Note Holder, including any payment or distribution of
cash, property or securities after the commencement of a proceeding of the type
referred to in Section 5.01(v), (vi) or (vii) hereof, except as expressly
provided in Article III hereof."
(b) Section 2.13(b) is amended by inserting at the end thereof the
following:
"By the acceptance of its Related Equipment Notes, each Related Note
Holder agrees that in the event that such Related Note Holder, in its capacity
as a Related Note Holder, shall receive any payment or distribution pursuant to
this Trust Indenture on any Related Secured Obligations which it is not entitled
to receive under this Section 2.13 or Article III hereof, it will hold any
amount so received in trust for the Senior Holder (as defined in Section 2.13(c)
hereof) and will forthwith turn over such payment to the Mortgagee in the form
received to be applied as provided in Article III hereof."
(c) Section 2.13(c) is amended by deleting "and" before clause (iii)
and inserting in lieu thereof a comma and by inserting at the end of clause
(iii) the following: "and (iv) after the Secured Obligations in respect of the
Series C-1 or C-2 Equipment Notes have been paid in full, the Note Holders of
the Series D until the Secured Obligations in respect of the Series D Equipment
Notes have been paid in full".
SECTION 2.8 EVENT OF LOSS; REPLACEMENT; OPTIONAL REDEMPTION.
Section 3.02 is amended by inserting in the first paragraph after
"to all other Secured Obligations" the following "then due".
SECTION 2.9 PAYMENTS AFTER EVENT OF DEFAULT.
Section 3.03 is amended by inserting in clause "Third" after
paragraph (iv) the following:
"(v) after giving effect to paragraph (iv) above, so much of such payments
or amounts remaining as shall be required to pay in full all Related
Secured Obligations in respect of the Same Series Related Equipment
Notes then due shall be distributed to the Same Series Related Note
Holders, and in case the aggregate amount so to be distributed shall
be insufficient to pay in full as aforesaid, then ratably, without
priority of one over the other, to each Same Series Related Note
Holder in the proportion that the aggregate unpaid Related Secured
Obligations in respect of Same Series Related Equipment Notes then due
held by such holder bears to the aggregate unpaid Related Secured
Obligations in respect of Same Series Related Equipment Notes then
due; PROVIDED, that if no Related Secured Obligations in respect of
Same Series Related Equipment Notes shall then be due and payable,
such remaining amounts and any invested Cash Equivalents shall be held
by the Mortgagee in an Eligible Account in accordance with the
provisions of Section 3.07 (and invested as provided in Section 6.06
hereof) as additional security for the Related Secured Obligations,
and such amounts (and any investment earnings thereon) shall be
distributed from time to time in accordance with the foregoing
provisions of this paragraph (v) as and to the extent any Related
Secured Obligation in respect of Same Series Related Equipment Notes
shall at any time and from time to time become due and remain unpaid
after the giving of any required notice and the expiration of any
applicable grace period; and, upon the payment in full of all Related
Secured Obligations in respect of the Same Series Related Equipment
Notes, the balance, if any, of any such remaining amounts
and investment earnings thereon shall be applied as provided in
paragraph (vi) of this clause Third; and
(vi) after giving effect to paragraph (v) above, so much of such payments
or amounts remaining as shall be required to pay in full all Related
Secured Obligations in respect of Other Related Equipment Notes then
due shall be distributed to the Other Related Note Holders, and in
case the aggregate amount so to be distributed shall be insufficient
to pay in full as aforesaid, then ratably, without priority of one
over the other, to each Other Related Note Holder in the proportion
that the aggregate unpaid Related Secured Obligations in respect of
Other Related Equipment Notes then due held by such holder bears to
the aggregate unpaid Related Secured Obligations in respect of Other
Related Equipment Notes then due; PROVIDED, that if no Related Secured
Obligations in respect of Other Related Equipment Notes shall then be
due and payable, such remaining amounts and any invested Cash
Equivalents shall be held by the Mortgagee in an Eligible Account in
accordance with the provisions of Section 3.07 (and invested as
provided in Section 6.06 hereof) as additional security for the
Related Secured Obligations, and such amounts (and any investment
earnings thereon) shall be distributed from time to time in accordance
with the foregoing provisions of this paragraph (vi) as and to the
extent any Related Secured Obligation in respect of Other Related
Equipment Notes shall at any time and from time to time become due and
remain unpaid after the giving of any required notice and the
expiration of any applicable grace period; and, upon the payment in
full of all Related Secured Obligations in respect of the Other
Related Equipment Notes, the balance, if any, of any such remaining
amounts and investment earnings thereon shall be applied as provided
in clause Fourth of this Section 3.03; and"
SECTION 2.10 COOPERATION; SECURITIES ACCOUNT.
Article III is amended by inserting after Section 3.05 the following
new Sections:
"SECTION 3.06. COOPERATION
Prior to making any distribution under this Article III, the
Mortgagee shall consult with the Related Mortgagees to determine amounts payable
with respect to the Related Secured Obligations. The Mortgagee shall cooperate
with the Related Mortgagees and shall provide such information as shall be
reasonably requested by each Related Mortgagee to enable such Related Mortgagee
to determine amounts distributable under Article III of its Related Indenture.
"SECTION 3.07 SECURITIES ACCOUNT
In furtherance of the provisions of Section 3.03 of the Trust
Indenture as amended hereby, WTC agrees to act as an Eligible Institution under
the Trust Indenture in accordance with the provisions of the Trust Indenture (in
such capacity, the "SECURITIES INTERMEDIARY"). Except in its capacity as
Mortgagee, WTC waives any claim or lien against any Eligible Account it may
have, by operation of law or otherwise, for any amount owed to it by Owner. The
Securities Intermediary hereby agrees that, notwithstanding anything to the
contrary in the Trust Indenture, (i) any amounts to be held by the Mortgagee
pursuant to paragraphs (v) and (vi) of clause "Third" of Section 3.03 and any
investment earnings thereon or other Cash Equivalents will be credited to an
Eligible Account (the "Securities Account") for which it is a "securities
intermediary" (as defined in Section 8-102(a)(14) of the NY UCC) and the
Mortgagee is the "entitlement holder" (as defined in Section 8-102(a)(17) of the
NY UCC) of the "securities entitlement" (as defined in Section 8-102(a)(17) of
the NY UCC) with respect to each "financial asset" (as defined in Section
8-102(a)(9) of the NY UCC) credited to such Eligible Account, (ii) all such
amounts, Cash Equivalents and all other property acquired with cash credited to
the Securities Account will be credited to the Securities Account, (iii) all
items of property (whether cash, investment property, Cash Equivalents, other
investments, securities, instruments or other property) credited to the
Securities Account will be treated as a "financial asset" under Article 8 of the
NY UCC, (iv) its "securities intermediary's jurisdiction" (as defined in Section
8-110(e) of the NY UCC) with respect to the Securities Account is the State of
New York, and (v) all securities, instruments and other property in order or
registered from and credited to the Securities Account shall be payable to or to
the order of, or registered in the name of, the Securities Intermediary or shall
be indorsed to the Securities Intermediary or in blank, and in no case
whatsoever shall any financial asset credited to the Securities Account be
registered in the name of the Owner, payable to or to the order of the Owner or
specially indorsed to the Owner except to the extent the foregoing have been
specially endorsed by the Owner to the Securities Intermediary or in blank. The
Mortgagee agrees that it will hold (and will indicate clearly in its books and
records that it holds) its "securities entitlement" to the "financial assets"
credited to the Securities Account in trust for the benefit of the Note Holders
and each of the Indenture Indemnitees as set forth in the Trust Indenture. The
Owner acknowledges that, by reason of the Mortgagee being the "entitlement
holder" in respect of the Securities Account as provided above, the Mortgagee
shall have the sole right and discretion, subject only to the terms of the Trust
Indenture, to give all "entitlement orders" (as defined in Section 8-102(a)(8)
of the NY UCC) with respect to the Securities Account and any and all financial
assets and other property credited thereto to the exclusion of the Owner."
SECTION 2.11 POSSESSION, OPERATION AND USE, ETC.
Section 4.02(b) is amended by inserting in the last paragraph
thereof (i) after the words "each Note Holder" in the two instances that they
appear the following "and Related Note Holder" and (ii) after "Equipment Note"
the following: "and a Related Equipment Note, respectively,".
SECTION 2.12 REMEDIES.
Section 5.02(e) is amended to insert after "so long as" the
following: "the Class D Pass Through Trustee or".
[SECTION 2.13 INVESTMENT OF AMOUNTS HELD BY MORTGAGEE] [97-4 ONLY]
Section 6.06 is amended by inserting after the last sentence thereof
the following: "All Cash Equivalents held by the Mortgagee pursuant to this
Section 6.06 shall either be (a) registered in the name of, payable to the order
of, or specially endorsed to, the Mortgagee, or (b) held in an Eligible
Account." [Remaining sections to be renumbered in 97-4]
SECTION 2.13 INSTRUCTIONS OF MAJORITY; LIMITATIONS.
[ 97-4 only: (a)] Section 10.01(a) is amended to insert at the end
of clause (iv) of the first sentence the following:
"; PROVIDED, FURTHER, that without the consent of each holder of an
affected Related Equipment Note then outstanding, no such amendment,
waiver or modification of terms of, or consent under, any thereof
shall modify Section 3.03 or deprive any Related Note Holder of the
benefit of the Lien of this Trust Indenture on the Collateral, except
as provided in connection with the exercise of remedies under Article
V hereof."
[97-4 only: (b) Section 10.01(a) is further amended by inserting
after the parenthetical in clause (iii) of the proviso therein the following:
"or the other Indenture Indemnitees".]
SECTION 2.14 TERMINATION OF TRUST INDENTURE.
Section 11.01 is amended by deleting in the first sentence "under
the Participation Agreement or other Operative Agreement," and inserting in lieu
thereto "under the Participation Agreement, other Operative Agreement or any
Related Indenture,".
[97-4, 98-1, 98-3, 99-1, 99-2, 2000-1 ONLY: SECTION 2.14A
BANKRUPTCY.
Section 11.13 is amended to insert after the words "and Parts" the
following: "and to enforce any of its other rights or remedies".]
SECTION 2.15 ANNEX A.
(a) The definition of "Class D Issuance Date" is amended by deleting
"Pass Through Certificates" and substituting therefor "pass through
certificates".
(b) The definition of "Class D Pass Through Trust" is amended by
deleting "2000-2D" and replacing it with "2001-2D".
(c) The definition of "Debt Rate" is amended by inserting at the end
thereof the following: "(or, in case of the Series D Equipment Notes, as
specified in an amendment to the Trust Indenture)".
(d) The definition of "Indemnitee" is amended by inserting at the
end of clause (v) the following: "[2000-2 only: the Class D Escrow Agent, the
Class D Paying Agent,] the Class D Pass Through Trustee and each Related Note
Holder,".
(e) The definition of "Indenture Indemnitee" is amended by inserting
at the end of clause (v) the following: ", [2000-2 only: the Class D Escrow
Agent, the Class D Paying Agent,] the Class D Pass Through Trustee and each
Related Note Holder,".
(f) The definition of "Intercreditor Agreement" is amended by
inserting after "Issuance Date" the following: ", as amended by Amendment No. 1
thereto, dated as of the Class D Issuance Date,".
(g) The definition of "Payment Date" is amended by inserting at the
end thereof the following: "(or, in the case of the Series D Equipment Notes,
each June 1 and December 1, commencing on December 1, 2001)".
(h) The definition of "Pass Through Agreements" is amended to insert
after "Escrow Agreements," the following: "the Class D Pass Through Agreement,
the Class D Note Purchase Agreement, [2000-2 only: the Class D Deposit
Agreement, the Class D Escrow Agreement,]"
(i) The following new definitions shall be inserted in Annex A in
appropriate alphabetical order:
"CLASS D DEPOSIT AGREEMENT" means the Deposit Agreement (as defined
in the Class D Note Purchase Agreement); provided that for purposes of any
obligation of Owner, no amendment, modification or supplement to, or
substitution or replacement of, such Agreement shall be effective unless
consented to by Owner. [2000-2 only]
"CLASS D DEPOSITARY" means the Person acting as depositary under the
Class D Deposit Agreement. [2000-2 only]
"CLASS D ESCROW AGENT" means the Person acting as escrow agent under
the Class D Escrow Agreement. [2000-2 only]
"CLASS D ESCROW AGREEMENT" means the Escrow and Paying Agent
Agreement (as defined in the Class D Note Purchase Agreement); provided that for
purposes of any obligation of Owner, no amendment, modification or supplement
to, or substitution or replacement of, such Agreement shall be effective unless
consented to by Owner. [2000-2 only]
"CLASS D NOTE PURCHASE AGREEMENT" means the Note Purchase Agreement,
dated as of the Class D Issuance Date, among the Owner, the Class D Pass Through
Trustee, WTC, as subordination agent under the intercreditor agreements referred
to therein, Wells Fargo Bank Northwest, National Association, as escrow agent,
and WTC, as paying agent; provided that for purposes of any obligation of Owner,
no amendment, modification or supplement to, or substitution or replacement of,
such Agreement shall be effective unless consented to by Owner.
"CLASS D PASS THROUGH TRUST AGREEMENT" means the Trust Supplement
No. 2001-2D, dated as of the Class D Issuance Date, together with the Basic Pass
Through Trust Agreement, between Owner and the Class D Pass Through Trustee;
provided that for purposes of any obligation of Owner, no amendment,
modification or supplement to, or substitution or replacement of, such Agreement
shall be effective unless consented to by Owner.
"CLASS D PASS THROUGH TRUSTEE" means WTC, in its capacity as pass
through trustee for the Class D Pass Through Trust.
"CLASS D PAYING AGENT" means the Person acting as paying agent under
the Class D Escrow Agreement. [2000-2 only]
"ELIGIBLE ACCOUNT" means an account established by and with an
Eligible Institution at the request of the Mortgagee, which institution agrees,
for all purposes of the UCC including Article 8 thereof, that (a) such account
shall be a "securities account" (as defined in Section 8-501 of the UCC), (b)
all property (other than cash) credited to such account shall be treated as a
"financial asset" (as defined in Section 8-102(9) of the UCC), (c) the Mortgagee
shall be the "entitlement holder" (as defined in Section 8-102(7) of the UCC) in
respect of such account, (d) it will comply with all entitlement orders issued
by the Mortgagee to the exclusion of the Owner, and (e) the "securities
intermediary jurisdiction" (under Section 8-110(e) of the UCC) shall be the
State of New York. [97-4 only]
"ELIGIBLE INSTITUTION" means the corporate trust department of (a)
Wilmington Trust Company, acting solely in its capacity as a "securities
intermediary" (as defined in Section 8-102(14) of the UCC), or (b) a depository
institution organized under the laws of the United States of America or any one
of the states thereof or the District of Columbia (or any U.S. branch of a
foreign bank), which has a long-term unsecured debt rating from Moody's and
Standard & Poor's of at least A-3 or its equivalent. [97-4 only]
"NY UCC" means the UCC as in effect on the date of determination in
the State of New York.
"OTHER RELATED EQUIPMENT NOTES" means Related Equipment Notes other
than the Same Series Related Equipment Notes.
"OTHER RELATED NOTE HOLDERS" means Related Note Holders of Other
Related Equipment Notes.
"RELATED EQUIPMENT NOTE" means, as of any date, a "Series D
Equipment Note" as defined in each Related Indenture, but only if as of such
date it is held by the "Subordination Agent" under the "Intercreditor
Agreement", as such terms are defined in such Related Indenture.
"RELATED INDENTURE" means each indenture under which a "Series D
Equipment Note" has been issued and purchased by the Class D Pass Through
Trustee, other than the Trust Indenture.
"RELATED MORTGAGEE" means the "Mortgagee" as defined in each Related
Indenture.
"RELATED NOTE HOLDER" means a registered holder of a Related
Equipment Note.
"RELATED SECURED OBLIGATIONS" means, as of any date, the outstanding
"Original Amount", as defined in each Related Indenture, of the Related
Equipment Notes issued under such Related Indenture and the accrued and unpaid
interest due thereon in accordance with such Related Indenture as of such date.
"SAME SERIES RELATED EQUIPMENT NOTES" means Related Equipment Notes
issued under the Operative Indentures (other than this Trust Indenture).
"SAME SERIES RELATED NOTE HOLDERS" means Related Note Holders of
Same Series Related Equipment Notes.
SECTION 2.16 ANNEX B.
Section D of Annex B is amended by inserting in paragraph (i) after
"each Note Holder," the following: "each Related Mortgagee, each Related Note
Holder,"
SECTION 2.17 TRUST INDENTURE SUPPLEMENT.
Trust Indenture and Mortgage Supplement No. 1 to the Trust Indenture
is amended by deleting in the first Whereas clause the following: "to the date
hereof".
SECTION 3. CERTAIN TERMS OF SERIES D EQUIPMENT NOTES. The Series D
Equipment Notes shall bear interest at the rate of 7.568% per annum. The
Original Amount of the Series D Equipment Notes shall be due and payable in full
on December 1, 2006 and shall not exceed the maximum amount as provided in the
Class D Note Purchase Agreement.
SECTION 4. CONSTRUCTION. Effective as of the date hereof, all
references in the Trust Indenture to the "Trust Indenture" shall be deemed to
refer to the Trust Indenture as amended by this Amendment, and the parties
hereto confirm their respective obligations thereunder. Except as otherwise
specified in this Amendment, the Trust Indenture shall remain in all respects
unchanged and in full force and effect.
SECTION 5. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the law of the State of New York.
SECTION 6. COUNTERPARTS. This Amendment may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
[Remainder of this page is blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective officers thereunto duly authorized, as of
the date and year first above written.
CONTINENTAL AIRLINES, INC.
By
--------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual
capacity, but solely as
Mortgagee
By
--------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Securities Intermediary
By
--------------------------------------
Name:
Title:
CERTIFICATE
Certificate
No. 1
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the issuer
hereof or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch the registered owner hereof,
Cede & Co., has an interest herein.
CONTINENTAL AIRLINES PASS THROUGH TRUST 2001-2D-O
7.568% Continental Airlines Pass Through Certificate, Series 2001-2D-O
Issuance Date: July 31, 2001
Final Maturity Date: December 1, 2006
Evidencing A Fractional Undivided Interest In The Continental
Airlines Pass Through Trust 2001-2D-O, The Property Of Which
Shall Include Certain Series D Equipment Notes Each Secured By
An Aircraft Owned By Continental Airlines, Inc.
$200,000,000 Fractional Undivided Interest
representing .0005000000% of the Trust per $1,000 face amount
THIS CERTIFIES THAT CEDE AND CO., for value received, is the
registered owner of a $200,000,000 (TWO HUNDRED MILLION DOLLARS) Fractional
Undivided Interest in the Continental Airlines Pass Through Trust 2001-2D-O (the
"TRUST") created by Wilmington Trust Company, as trustee (the "TRUSTEE"),
pursuant to a Pass Through Trust Agreement, dated as of September 25, 1997 (the
"BASIC AGREEMENT"), between the Trustee and Continental Airlines, Inc., a
Delaware corporation (the "COMPANY"), as supplemented by Trust Supplement No.
2001-2D-O thereto, dated as of July 31, 2001 (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 "7.568% Continental
Airlines Pass Through Certificates, Series 2001-2D-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 D
Equipment Notes and all rights of the Trust to receive payments under the
Intercreditor Agreements (the "TRUST PROPERTY"). Each issue of the Series D
Equipment Notes is secured by, among other things, a security interest in an
Aircraft owned by the Company.
The Certificates represent Fractional Undivided Interests in the
Trust and the Trust Property and have no rights, benefits or interest in respect
of any other separate trust established pursuant to the terms of the Basic
Agreement for any other series of certificates issued pursuant thereto.
Subject to and in accordance with the terms of the Agreement and the
Intercreditor Agreements, from funds then available to the Trustee, there will
be distributed on each June 1 and December 1 (a "REGULAR DISTRIBUTION DATE")
commencing December 1, 2001, 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
D 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 D 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 D
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 Agreement. This
Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, privileges, and duties evidenced hereby. A copy of the Agreement
may be examined during normal business hours at the principal office of the
Trustee, and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Certificateholders under the Agreement at any time
by the Company and the Trustee with the consent of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust. Any such consent by the
Certificateholder of this Certificate shall be conclusive and binding on such
Certificateholder and upon all future Certificateholders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Certificateholders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations set
forth therein, the transfer of this Certificate is registrable in the Register
upon surrender of this Certificate for registration of transfer at the offices
or agencies maintained by the Trustee in its capacity as Registrar, or by any
successor Registrar, duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Registrar, duly executed by
the Certificateholder hereof or such Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate Fractional Undivided Interest in the
Trust will be issued to the designated transferee or transferees.
Under certain circumstances set forth in Section 7.01 of the Trust
Supplement, all of the Trustee's right, title and interest to the Trust Property
may be assigned, transferred and delivered to the Related Trustee of the Related
Trust pursuant to the Assignment and Assumption Agreement. Upon the
effectiveness of such Assignment and Assumption Agreement (the "TRANSFER"), the
Trust shall be terminated, the Certificateholders shall receive beneficial
interests in the Related Trust in exchange for their interests in the Trust
equal to their respective beneficial interests in the Trust, the Certificates
representing Fractional Undivided Interests in the Trust shall be deemed for all
purposes of the Agreement and the Related Pass Through Trust Agreement to be
certificates representing the same fractional undivided interests in the Related
Trust and its trust property. Each Certificateholder, by its acceptance of this
Certificate or a beneficial interest herein, agrees to be bound by the
Assignment and Assumption Agreement and subject to the terms of the Related Pass
Through Trust Agreement as a Certificateholder thereunder. From and after the
Transfer, unless and to the extent the context otherwise requires, references
herein to the Trust, the Agreement and the Trustee shall constitute references
to the Related Trust, the Related Pass Through Trust Agreement and trustee of
the Related Trust, respectively.
The Certificates are issuable only as registered Certificates
without coupons in minimum denominations of $1,000 Fractional Undivided Interest
and integral multiples thereof except that one Certificate may be issued in a
different denomination. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust, as requested by the
Certificateholder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee shall require payment of a sum sufficient to cover
any tax or governmental charge payable in connection therewith.
Each Certificateholder and Investor, by its acceptance of this
Certificate or a beneficial interest herein, agrees to treat the Trust as a
grantor trust for all U.S. federal, state and local income tax purposes.
The Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Trustee, the Registrar, nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and
the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
Any Person acquiring or accepting this Certificate or an interest
herein will, by such acquisition or acceptance, be deemed to have represented
and warranted to and for the benefit of the Company that either: (i) the assets
of an employee benefit plan subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or of a plan subject to Section 4975
of the Internal Revenue Code of 1986, as amended (the "CODE"), have not been
used to purchase this Certificate or an interest herein or (ii) the purchase and
holding of this Certificate or an interest herein are exempt from the prohibited
transaction restrictions of ERISA and the Code pursuant to one or more
prohibited transaction statutory or administrative exemptions.
THE AGREEMENT AND, UNTIL THE TRANSFER, THIS CERTIFICATE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS. THE RELATED PASS THROUGH TRUST
AGREEMENT AND, FROM AND AFTER THE TRANSFER, THIS CERTIFICATE SHALL BE GOVERNED
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
CONTINENTAL AIRLINES PASS THROUGH
TRUST 2001-2D-O
By: WILMINGTON TRUST COMPANY,
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 COMPANY,
as Trustee
By:
------------------------------
Name:
Title:
AIRCRAFT INFORMATION SERVICES, INC.
26072 Merit Circle, Suite 123
Laguna Hills, CA 92653
July 13, 2001
CONTINENTAL AIRLINES, INC.
1600 Smith Street
Houston, TX 77002
Re: Preliminary Prospectus Supplement, dated July 13, 2001, to the
Prospectus dated March 23, 2001, included in Registration
STATEMENT NO. 333-57188 OF CONTINENTAL AIRLINES, INC.
--------------------------------------------------------------
Ladies and Gentlemen:
We consent to the use of the reports listed below prepared by us
with respect to the aircraft referred to in such reports, to the summary of such
reports in the text and footnotes under the headings "Prospectus Supplement
Summary--Summary of Terms of Certificates," "Prospectus Supplement
Summary--Aggregate Outstanding Principal Balances," "Prospectus Supplement
Summary--Owned Aircraft Outstanding Principal Balances," "Risk Factors--Risk
Factors Relating to the Certificates and the Offering--Appraisals and Realizable
Value of Aircraft" and "Experts" in the Preliminary Prospectus Supplement, to
the incorporation by reference of our reports listed below in the Preliminary
Prospectus Supplement and to the references to our name under the heading
"Experts" in such Preliminary Prospectus Supplement. We also consent to such
use, summary, incorporation and references in the Final Prospectus Supplement
relating to the offering described in such Preliminary Prospectus Supplement, to
the extent such use, summary, incorporation and references are unchanged.
The consent above covers the following reports, which will be filed
with the Securities and Exchange Commission as Exhibits to a Continental
Airlines, Inc. Form 8-K Report that will be incorporated by reference in such
Preliminary Prospectus Supplement and Final Prospectus Supplement:
1) Appraisal Letter, dated October 6, 1997, in connection with the Prospectus
Supplement, dated October 16, 1997 (Series 1997-4), to the Prospectus,
dated September 4, 1997;
2) Appraisal Letters, dated February 5 and 11, 1998, in connection with the
Prospectus Supplement, dated February 11, 1998 (Series 1998-1), to the
Prospectus, dated September 4, 1997;
3) Appraisal Letter, dated August 27, 1998, revised October 1, 1998, in
connection with the Prospectus Supplement, dated October 21, 1998 (Series
1998-3), to the Prospectus, dated August 25, 1998;
4) Appraisal Letter, dated December 8, 1998, in connection with the Prospectus
Supplement, dated January 21, 1999) (Series 1999-1), to the Prospectus,
dated August 25, 1998;
5) Appraisal Letter, dated May 19, 1999, in connection with the Prospectus
Supplement, dated June 3, 1999 (Series 1999-2), to the Prospectus, dated
August 25, 1998;
6) Appraisal Letter, dated February 23, 2000, in connection with the
Prospectus Supplement, dated March 1, 2000 (Series 2000-1) , to the
Prospectus, dated December 8, 1999;
7) Appraisal Letter, dated October 31, 2000, in connection with the Prospectus
Supplement, dated November 14, 2000 (Series 2000-2), to the Prospectus,
dated September 25, 2000.
Sincerely,
AIRCRAFT INFORMATION SERVICES, INC.
/S/ FRED E. BEARDEN
-----------------------------------
Name: Fred E. Bearden
Title: President
AVITAS, INC.
14520 Avion Parkway, Suite 220
Chantilly, VA 20151
July 13, 2001
CONTINENTAL AIRLINES, INC.
1600 Smith Street
Houston, TX 77002
Re: Preliminary Prospectus Supplement, dated July 13, 2001, to the
Prospectus dated March 23, 2001, included in Registration
STATEMENT NO. 333-57188 OF CONTINENTAL AIRLINES, INC.
--------------------------------------------------------------
Ladies and Gentlemen:
We consent to the use of the report prepared by us with respect to
the aircraft referred to in such report, to the summary of such report in the
text and footnotes under the headings "Prospectus Supplement Summary--Summary of
Terms of Certificates," "Prospectus Supplement Summary--Aggregate Outstanding
Principal Balances," "Prospectus Supplement Summary--Owned Aircraft Outstanding
Principal Balances," "Risk Factors--Risk Factors Relating to the Certificates
and the Offering--Appraisals and Realizable Value of Aircraft" and "Experts" in
the Preliminary Prospectus Supplement, to the incorporation by reference of our
reports listed below in the Preliminary Prospectus Supplement and to the
references to our name under the heading "Experts" in such Preliminary
Prospectus Supplement. We also consent to such use, summary, incorporation and
references in the Final Prospectus Supplement relating to the offering described
in such Preliminary Prospectus Supplement, to the extent such use, summary,
incorporation and references are unchanged.
The consent above covers the Appraisal Letter, dated October 31,
2000, in connection with the Prospectus Supplement, dated November 14, 2000
(Series 2000-2), to the Prospectus, dated September 25, 2000 and will be filed
with the Securities and Exchange Commission as an Exhibit to a Continental
Airlines, Inc. Form 8-K Report that will be incorporated by reference in such
Preliminary Prospectus Supplement and Final Prospectus Supplement.
Sincerely,
AVITAS, INC.
/S/ DOUGLAS B. KELLY
---------------------------------------------
Name: Douglas B. Kelly
Title: Vice President-Asset Valuation
MORTEN BEYER & AGNEW
2107 Wilson Boulevard, Suite 750
Arlington, VA 22201
July 13, 2001
CONTINENTAL AIRLINES, INC.
1600 Smith Street
Houston, TX 77002
Re: Preliminary Prospectus Supplement, dated July 13, 2001, to the
Prospectus dated March 23, 2001, included in Registration
STATEMENT NO. 333-57188 OF CONTINENTAL AIRLINES, INC.
--------------------------------------------------------------
Ladies and Gentlemen:
We consent to the use of the reports listed below prepared by us
with respect to the aircraft referred to in such reports, to the summary of such
reports in the text and footnotes under the headings "Prospectus Supplement
Summary--Summary of Terms of Certificates," "Prospectus Supplement
Summary--Aggregate Outstanding Principal Balances," "Prospectus Supplement
Summary--Owned Aircraft Outstanding Principal Balances," "Risk Factors--Risk
Factors Relating to the Certificates and the Offering--Appraisals and Realizable
Value of Aircraft" and "Experts" in the Preliminary Prospectus Supplement, to
the incorporation by reference of our reports listed below in the Preliminary
Prospectus Supplement and to the references to our name under the heading
"Experts" in such Preliminary Prospectus Supplement. We also consent to such
use, summary, incorporation and references in the Final Prospectus Supplement
relating to the offering described in such Preliminary Prospectus Supplement, to
the extent such use, summary, incorporation and references are unchanged.
The consent above covers the following reports, which will be filed
with the Securities and Exchange Commission as Exhibits to a Continental
Airlines, Inc. Form 8-K Report that will be incorporated by reference in such
Preliminary Prospectus Supplement and Final Prospectus Supplement:
1) Appraisal Letter, dated October 6, 1997, in connection with the Prospectus
Supplement, dated October 16, 1997 (Series 1997-4), to the Prospectus,
dated September 4, 1997;
2) Appraisal Letters, dated February 5 and 11, 1998, in connection with the
Prospectus Supplement, dated February 11, 1998 (Series 1998-1), to the
Prospectus, dated September 4, 1997;
3) Appraisal Letter, dated October 1, 1998, in connection with the Prospectus
Supplement, dated October 21, 1998 (Series 1998-3), to the Prospectus,
dated August 25, 1998;
4) Appraisal Letter, dated December 8, 1998, in connection with the Prospectus
Supplement, dated January 21, 1999) (Series 1999-1), to the Prospectus,
dated August 25, 1998;
5) Appraisal Letter, dated May 19, 1999, in connection with the Prospectus
Supplement, dated June 3, 1999 (Series 1999-2), to the Prospectus, dated
August 25, 1998;
6) Appraisal Letter, dated January 17, 2000, in connection with the Prospectus
Supplement, dated March 1, 2000 (Series 2000-1) , to the Prospectus, dated
December 8, 1999;
7) Appraisal Letter, dated October 31, 2000, in connection with the Prospectus
Supplement, dated November 14, 2000 (Series 2000-2), to the Prospectus,
dated September 25, 2000.
Sincerely,
MORTEN BEYER & AGNEW
/S/ ROBERT F. AGNEW
------------------------------
Name: Robert F. Agnew
Title: President & COO
BK Associates, Inc.
1295 Northern Boulevard
Manhasset, New York 11030
July 13, 2001
CONTINENTAL AIRLINES, INC.
1600 Smith Street
Houston, TX 77002
Re: Preliminary Prospectus Supplement, dated July 13, 2001, to the
Prospectus dated March 23, 2001, included in Registration
STATEMENT NO. 333-57188 OF CONTINENTAL AIRLINES, INC.
--------------------------------------------------------------
Ladies and Gentlemen:
We consent to the use of the reports listed below prepared by us
with respect to the aircraft referred to in such reports, to the summary of such
reports in the text and footnotes under the headings "Prospectus Supplement
Summary--Summary of Terms of Certificates," "Prospectus Supplement
Summary--Aggregate Outstanding Principal Balances," "Prospectus Supplement
Summary--Owned Aircraft Outstanding Principal Balances," "Risk Factors--Risk
Factors Relating to the Certificates and the Offering--Appraisals and Realizable
Value of Aircraft" and "Experts" in the Preliminary Prospectus Supplement, to
the incorporation by reference of our reports listed below in the Preliminary
Prospectus Supplement and to the references to our name under the heading
"Experts" in such Preliminary Prospectus Supplement. We also consent to such
use, summary, incorporation and references in the Final Prospectus Supplement
relating to the offering described in such Preliminary Prospectus Supplement, to
the extent such use, summary, incorporation and references are unchanged.
The consent above covers the following reports, which will be filed
with the Securities and Exchange Commission as Exhibits to a Continental
Airlines, Inc. Form 8-K Report that will be incorporated by reference in such
Preliminary Prospectus Supplement and Final Prospectus Supplement:
1) Appraisal Letter, dated October 6, 1997, in connection with the Prospectus
Supplement, dated October 16, 1997 (Series 1997-4), to the Prospectus,
dated September 4, 1997;
2) Appraisal Letters, dated January 29 and February 10, 1998, in connection
with the Prospectus Supplement, dated February 11, 1998 (Series 1998-1), to
the Prospectus, dated September 4, 1997.
Sincerely,
BK ASSOCIATES, INC.
/S/ R. L. BRITTON
--------------------------------
Name: R. L. Britton
Title: Vice President
ISTAT Senior
Certified Appraiser
AvSolutions, Inc.
7518-B Diplomat Drive
Manassas, Virginia 20109
July 13, 2001
CONTINENTAL AIRLINES, INC.
1600 Smith Street
Houston, TX 77002
Re: Preliminary Prospectus Supplement, dated July 13, 2001, to the
Prospectus dated March 23, 2001, included in Registration
STATEMENT NO. 333-57188 OF CONTINENTAL AIRLINES, INC.
--------------------------------------------------------------
Ladies and Gentlemen:
We consent to the use of the reports listed below prepared by us
with respect to the aircraft referred to in such reports, to the summary of such
reports in the text and footnotes under the headings "Prospectus Supplement
Summary--Summary of Terms of Certificates," "Prospectus Supplement
Summary--Aggregate Outstanding Principal Balances," "Prospectus Supplement
Summary--Owned Aircraft Outstanding Principal Balances," "Risk Factors--Risk
Factors Relating to the Certificates and the Offering--Appraisals and Realizable
Value of Aircraft" and "Experts" in the Preliminary Prospectus Supplement, to
the incorporation by reference of our reports listed below in the Preliminary
Prospectus Supplement and to the references to our name under the heading
"Experts" in such Preliminary Prospectus Supplement. We also consent to such
use, summary, incorporation and references in the Final Prospectus Supplement
relating to the offering described in such Preliminary Prospectus Supplement, to
the extent such use, summary, incorporation and references are unchanged.
The consent above covers the following reports, which will be filed
with the Securities and Exchange Commission as Exhibits to a Continental
Airlines, Inc. Form 8-K Report that will be incorporated by reference in such
Preliminary Prospectus Supplement and Final Prospectus Supplement:
1) Appraisal Letter, dated October 1, 1998, in connection with the Prospectus
Supplement, dated October 21, 1998 (Series 1998-3), to the Prospectus,
dated August 25, 1998;
2) Appraisal Letter, dated December 8, 1998, in connection with the Prospectus
Supplement, dated January 21, 1999) (Series 1999-1), to the Prospectus,
dated August 25, 1998;
3) Appraisal Letter, dated May 19, 1999, in connection with the Prospectus
Supplement, dated June 3, 1999 (Series 1999-2), to the Prospectus, dated
August 25, 1998;
4) Appraisal Letter, dated February 23, 2000, in connection with the
Prospectus Supplement, dated March 1, 2000 (Series 2000-1) , to the
Prospectus, dated December 8, 1999.
Sincerely,
AvSolutions, Inc.
/S/ SCOTT DANIELS
-----------------------------------
Name: Scott Daniels
Title: Director, Valuation Services