1
EXHIBIT 4.5
--------------------------------------
PASS THROUGH TRUST AGREEMENT
Dated as of March 21, 1997
between
CONTINENTAL AIRLINES, INC.
and
WILMINGTON TRUST COMPANY,
as Trustee
Continental Airlines Pass Through Trust, Series 1997-1A-O
7.461% Initial Pass Through Certificates, Series 1997-1A-O
7.461% Exchange Pass Through Certificates, Series 1997-1A-O
--------------------------------------
2
2
Reconciliation and tie between Continental Airlines Pass Through Trust
Agreement, Series 1997-1A-O dated as of March 21, 1997, and the Trust Indenture
Act of 1939. This reconciliation does not constitute part of the Pass Through
Trust Agreement.
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
------------------- -----------------
310 (a)(1) 7.08
(a)(2) 7.08
312 (a) 3.05; 8.01; 8.02
313 (a) 7.06; 8.03
314 (a) 8.04(a), (C) & (d)
(a)(4) 8.04(e)
(c)(1) 1.02
(c)(2) 1.02
(d)(1) 7.13; 11.01
(d)(2) 7.13; 11.01
(d)(3) 2.01
(e) 1.02
315 (b) 7.02
316 (a)(last sentence) 1.04(c)
(a)(1)(A) 6.04
(a)(1)(B) 6.05
(b) 6.06
(c) 1.04(e)
317 (a)(1) 6.03
(b) 7.13
318 (a) 12.06
3
TABLE OF CONTENTS
SECTION PAGE
------- ----
ARTICLE I
DEFINITIONS
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.02. Compliance Certificates and Opinions . . . . . . . . . . . 18
Section 1.03. Form of Documents Delivered to Trustee . . . . . . . . . . 19
Section 1.04. Directions of Certificateholders . . . . . . . . . . . . . 19
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES; ACQUISITION OF EQUIPMENT NOTES
Section 2.01. Issuance of Certificates; Acquisition of Equipment Notes . 21
Section 2.02. Withdrawal of Deposits . . . . . . . . . . . . . . . . . . 23
Section 2.03. Acceptance by Trustee . . . . . . . . . . . . . . . . . . 23
Section 2.04. Limitation of Powers . . . . . . . . . . . . . . . . . . . 23
ARTICLE III
THE CERTIFICATES
Section 3.01. Title, Form, Denomination and Execution of Certificates . 24
Section 3.02. Restrictive Legends . . . . . . . . . . . . . . . . . . . 27
Section 3.03. Authentication of Certificates . . . . . . . . . . . . . . 29
Section 3.04. Transfer and Exchange . . . . . . . . . . . . . . . . . . 29
Section 3.05. Book-Entry Provisions for Restricted Global Certificates
and Regulation S Global Certificates . . . . . . . . . . . 31
Section 3.06. Special Transfer Provisions . . . . . . . . . . . . . . . 33
Section 3.07. Mutilated, Destroyed, Lost or Stolen Certificates . . . . 37
Section 3.08. Persons Deemed Owners . . . . . . . . . . . . . . . . . . 38
Section 3.09. Cancellation . . . . . . . . . . . . . . . . . . . . . . . 38
Section 3.10. Temporary Certificates . . . . . . . . . . . . . . . . . . 38
Section 3.11. Limitation of Liability for Payments . . . . . . . . . . . 39
(i)
4
TABLE OF CONTENTS
(CONTINUED)
SECTION PAGE
------- ----
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments Account . . . . . 39
Section 4.02. Distributions from Certificate Account and Special
Payments Account . . . . . . . . . . . . . . . . . . . . . 40
Section 4.03. Statements to Certificateholders . . . . . . . . . . . . . 42
Section 4.04. Investment of Special Payment Moneys . . . . . . . . . . . 44
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence . . . . . . . . . . . . 44
Section 5.02. Consolidation, Merger, etc. . . . . . . . . . . . . . . . 45
ARTICLE VI
DEFAULT
Section 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . 46
Section 6.02. Incidents of Sale of Equipment Notes . . . . . . . . . . . 49
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee May
Bring Suit . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.04. Control by Certificateholders . . . . . . . . . . . . . . 50
Section 6.05. Waiver of Past Defaults . . . . . . . . . . . . . . . . . 51
(ii)
5
TABLE OF CONTENTS
(CONTINUED)
SECTION PAGE
------- ----
Section 6.06. Right of Certificateholders to Receive Payments
Not to Be Impaired . . . . . . . . . . . . . . . . . . . . 52
Section 6.07. Certificateholders May Not Bring Suit Except
Under Certain Conditions . . . . . . . . . . . . . . . . . 52
Section 6.08. Remedies Cumulative . . . . . . . . . . . . . . . . . . . 53
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities . . . . . . . . . . . 53
Section 7.02. Notice of Defaults . . . . . . . . . . . . . . . . . . . . 54
Section 7.03. Certain Rights of Trustee . . . . . . . . . . . . . . . . 54
Section 7.04. Not Responsible for Recitals or Issuance of Certificates . 56
Section 7.05. May Hold Certificates . . . . . . . . . . . . . . . . . . 56
Section 7.06. Money Held in Trust . . . . . . . . . . . . . . . . . . . 56
Section 7.07. Compensation and Reimbursement . . . . . . . . . . . . . . 57
Section 7.08. Corporate Trustee Required; Eligibility . . . . . . . . . 58
Section 7.09. Resignation and Removal; Appointment of Successor . . . . 59
Section 7.10. Acceptance of Appointment by Successor . . . . . . . . . . 61
Section 7.11. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . . 61
Section 7.12. Maintenance of Agencies . . . . . . . . . . . . . . . . . 62
Section 7.13. Money for Certificate Payments to Be Held in Trust . . . . 63
Section 7.14. Registration of Equipment Notes in Name of
Subordination Agent . . . . . . . . . . . . . . . . . . . 64
Section 7.15. Representations and Warranties of Trustee . . . . . . . . 64
(iii)
6
TABLE OF CONTENTS
(CONTINUED)
SECTION PAGE
------- ----
Section 7.16. Withholding Taxes, Information Reporting . . . . . . . . . 65
Section 7.17. Trustee's Liens . . . . . . . . . . . . . . . . . . . . . 67
Section 7.18. Preferential Collection of Claims . . . . . . . . . . . . 67
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and
Addresses of Certificateholders . . . . . . . . . . . . . 67
Section 8.02. Preservation of Information; Communications
to Certificateholders . . . . . . . . . . . . . . . . . . 68
Section 8.03. Reports by Trustee . . . . . . . . . . . . . . . . . . . . 68
Section 8.04. Reports by the Company . . . . . . . . . . . . . . . . . . 68
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent
of Certificateholders . . . . . . . . . . . . . . . . . . 70
Section 9.02. Supplemental Agreements with
Consent of Certificateholders . . . . . . . . . . . . . . 71
Section 9.03. Documents Affecting Immunity or Indemnity . . . . . . . . 73
Section 9.04. Execution of Supplemental Agreements . . . . . . . . . . . 73
Section 9.05. Effect of Supplemental Agreements . . . . . . . . . . . . 73
Section 9.06. Conformity with Trust Indenture Act . . . . . . . . . . . 74
Section 9.07. Reference in Certificates to Supplemental Agreements . . . 74
(iv)
7
TABLE OF CONTENTS
(CONTINUED)
SECTION PAGE
------- ----
ARTICLE X
AMENDMENTS TO INDENTURES AND FINANCING DOCUMENTS
Section 10.01. Amendments and Supplements to Indentures and
Financing Documents . . . . . . . . . . . . . . . . . . . 74
ARTICLE XI
TERMINATION OF TRUST
Section 11.01. Termination of the Trust . . . . . . . . . . . . . . . . . 75
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders . . . . . . . . 79
Section 12.02. Certificates Nonassessable and Fully Paid . . . . . . . . 79
Section 12.03. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 12.04. Governing Law . . . . . . . . . . . . . . . . . . . . . . 81
Section 12.05. Severability of Provisions . . . . . . . . . . . . . . . . 81
Section 12.06. Trust Indenture Act Controls . . . . . . . . . . . . . . . 81
Section 12.07. Effect of Headings and Table of Contents . . . . . . . . . 81
Section 12.08. Successors and Assigns . . . . . . . . . . . . . . . . . . 82
Section 12.09. Benefits of Agreement . . . . . . . . . . . . . . . . . . 82
Section 12.10. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . 82
Section 12.11. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 82
Section 12.12. Intention of Parties . . . . . . . . . . . . . . . . . . . 82
(v)
8
Exhibit A- Form of Certificate
Exhibit B- Form of Certificate to Request Removal of Restricted Legend
Exhibit C- Form of Certificate to be Delivered by an Institutional
Accredited Investor
Exhibit D- Form of Assignment and Assumption Agreement
Exhibit E- Form of Notice to Withholding Agent
(vi)
9
PASS THROUGH TRUST AGREEMENT
This PASS THROUGH TRUST AGREEMENT, dated as of March 21, 1997 (the
"Agreement"), between CONTINENTAL AIRLINES, INC., a Delaware corporation, and
WILMINGTON TRUST COMPANY, as Trustee, is made with respect to the formation of
Continental Airlines Pass Through Trust, Series 1997-1A-O and the issuance of
7.461% Continental Airlines Pass Through Trust, Series 1997-1A-O Pass Through
Certificates representing fractional undivided interests in the Trust.
WITNESSETH:
WHEREAS, the Company has obtained commitments from Boeing for the delivery
of certain Aircraft;
WHEREAS, the Company intends to finance the acquisition of each such
Aircraft either (i) through separate leveraged lease transactions in which the
Company will lease such aircraft (collectively, the "Leased Aircraft") or (ii)
through separate secured loan transactions in which the Company will own such
Aircraft (collectively, the "Owned Aircraft");
WHEREAS, in the case of each Leased Aircraft, each Owner Trustee, acting
on behalf of the corresponding Owner Participant, will issue pursuant to an
Indenture, on a non-recourse basis, three series of Equipment Notes in order to
finance a portion of its purchase price of such Leased Aircraft;
WHEREAS, in the case of each Owned Aircraft, the Company, will issue
pursuant to an Indenture, on a recourse basis, three series of Equipment Notes
to finance a portion of the purchase price of such Owned Aircraft;
WHEREAS, the Trustee, upon execution and delivery of this Agreement,
hereby declares the creation of the Trust for the benefit of the
Certificateholders, and the initial Certificateholders, as the grantors of the
Trust, by their respective acceptances of the Certificates, join in the
creation of this Trust with the Trustee;
WHEREAS, all Certificates to be issued by the Trust will evidence
fractional undivided interests in the Trust and will convey no rights, benefits
or interests in respect of any
10
2
property other than the Trust Property except for those Certificates to which
an Escrow Receipt has been affixed;
WHEREAS, the Escrow Agent and the Initial Purchasers have
contemporaneously herewith entered into an Escrow Agreement with the Escrow
Paying Agent pursuant to which the Initial Purchasers have delivered to the
Escrow Agent the proceeds from the sale of the Certificates and have
irrevocably instructed the Escrow Agent to withdraw and pay funds from such
proceeds upon request and proper certification by the Trustee to purchase
Equipment Notes as the Aircraft are delivered by Boeing under the Aircraft
Purchase Agreement from time to time prior to the Delivery Period Termination
Date;
WHEREAS, the Escrow Agent on behalf of the Certificateholders has
contemporaneously herewith entered into a Deposit Agreement with the Depositary
under which the Deposits referred to therein will be made and from which it
will withdraw funds to allow the Trustee to purchase Equipment Notes from time
to time prior to the Delivery Period Termination Date;
WHEREAS, pursuant to the terms and conditions of this Agreement and the
Note Purchase Agreement, upon or shortly following delivery of an Aircraft, the
Trustee on behalf of the Trust, using funds withdrawn under the Escrow
Agreement, may purchase an Equipment Note having the same interest rate as, and
final maturity date not later than the final Regular Distribution Date of, the
Certificates issued hereunder and shall hold such Equipment Note in trust for
the benefit of the Certificateholders;
WHEREAS, to facilitate the sale of Equipment Notes to, and the purchase of
Equipment Notes by, the Trustee on behalf of the Trust, the Company has duly
authorized the execution and delivery of this Agreement as the "issuer", as
such term is defined in and solely for purposes of the Securities Act, of the
Certificates to be issued pursuant hereto and as the "obligor", as such term is
defined in and solely for purposes of the Trust Indenture Act of 1939, as
amended, with respect to all such Certificates and is undertaking to perform
certain administrative and ministerial duties hereunder and is also undertaking
to pay the ongoing fees and expenses of the Trustee;
WHEREAS, all of the conditions and requirements necessary to make this
Agreement, when duly executed and
11
3
delivered, a valid, binding and legal instrument, enforceable in accordance
with its terms and for the purposes herein expressed, have been done, performed
and fulfilled, and the execution and delivery of this Agreement in the form and
with the terms hereof have been in all respects duly authorized; and
WHEREAS, upon issuance of the Exchange Certificates, if any, or the
effectiveness of the Shelf Registration Statement, this Agreement, as amended
or supplemented from time to time, will be subject to the provisions of the
Trust Indenture Act of 1939, and shall, to the extent applicable, be governed
by such provisions;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms used in this Agreement, including in the recitals to this
Agreement, that are defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, or by the rules promulgated
under the Trust Indenture Act, have the meanings assigned to them therein;
(3) all references in this Agreement to designated "Articles", "Sections",
"Subsections" and other subdivisions are to the designated Articles,
Sections, Subsections and other subdivisions of this Agreement;
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Subsection or other subdivision; and
12
4
(5) unless the context otherwise requires, whenever the words "including",
"include" or "includes" are used herein, it shall be deemed to be followed by
the phrase "without limitation".
Affiliate: Means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person, provided, however, that neither
America West Airlines, Inc. nor any of its subsidiaries shall be deemed to be
an "Affiliate" of the Company for purposes of this Agreement. For the
purposes of this definition, "control" means the power, directly or
indirectly, to direct the management and policies of such Person, whether
through the ownership of voting securities or by contract or otherwise, and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
Agent Members: Has the meaning specified in Section 3.05.
Agreement: Has the meaning specified in the initial paragraph hereto.
Aircraft: Means each of the New Aircraft or Substitute Aircraft in respect
of which a Participation Agreement is entered into in accordance with the
Note Purchase Agreement.
Aircraft Purchase Agreement: Has the meaning specified in the Note
Purchase Agreement.
Applicable Delivery Date: Has the meaning specified in Section 2.01(b).
Applicable Participation Agreement: Has the meaning specified in Section
2.01(b).
Assignment and Assumption Agreement: Means the assignment and assumption
agreement substantially in the form of Exhibit D hereto executed and
delivered in accordance with Section 11.01.
Authorized Agent: Means any Paying Agent or Registrar for the
Certificates.
13
5
Avoidable Tax: Means a state or local tax (i) upon (w) the Trust, (x) the
Trust Property, (y) Certificate-holders or (z) the Trustee for which the
Trustee is entitled to seek reimbursement from the Trust Property, and (ii)
which would be avoided if the Trustee were located in another state, or
jurisdiction within a state, within the United States. A tax shall not be an
Avoidable Tax if the Company or any Owner Trustee shall agree to pay, and
shall pay, such tax.
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 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.
Cedel: Means Cedel Bank societe anonyme.
Certificate: Means any one of the Initial Certificates or Exchange
Certificates and any such Certificates issued in exchange therefor or
replacement thereof pursuant to this Agreement.
Certificate Account: Means the account or accounts created and maintained
pursuant to Section 4.01(a).
Certificate Purchase Agreement: Means the Purchase Agreement dated March
12, 1997 among the Initial Purchasers, the Company and the Depositary, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
Certificateholder or Holder: Means the Person in whose name a Certificate
is registered in the Register.
Class C Certificateholder: Has the meaning specified in Section 6.01.
Company: Means Continental Airlines, Inc., a Delaware corporation, or its
successor in interest pursuant to Section 5.02, or (only in the context of
provisions hereof, if any, where such reference is required for purposes of
14
6
compliance with the Trust Indenture Act) any other "obligor" (within the
meaning of the Trust Indenture Act) with respect to the Certificates.
Controlling Party: Has the meaning specified in the Intercreditor
Agreement.
Corporate Trust Office: With respect to the 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 Delivery Period Termination
Date and (b) the date on which a Triggering Event occurs.
Definitive Certificates: Has the meaning specified in Section 3.01(e).
Delivery Date: Has the meaning specified in the Note Purchase Agreement.
Delivery Notice: Has the meaning specified in the Note Purchase Agreement.
Delivery Period Termination Date: Means the earlier of (a) March 31, 1998,
or, if the Equipment Notes relating to all of the New Aircraft (or Substitute
Aircraft in lieu thereof) have not been purchased by the Trust and the Other
Trusts on or prior to such date due to any reason beyond the control of the
Company and not occasioned by the Company's fault or negligence, June 30,
1998 and (b) the date on which Equipment Notes issued with respect to all of
the New Aircraft (or Substitute Aircraft in lieu thereof) have been purchased
by the Trust and the Other Trusts in accordance with the Note Purchase
Agreement.
Deposits: Has the meaning specified in the Deposit Agreement.
Deposit Agreement: Means the Deposit Agreement dated as of March 21, 1997
relating to the 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.
15
7
Depositary: Means Credit Suisse First Boston, a Swiss bank, acting through
its New York branch.
Direction: Has the meaning specified in Section 1.04(a).
Distribution Date: Means any Regular Distribution Date or Special
Distribution Date as the context requires.
DTC: Means The Depository Trust Company, its nominees and their respective
successors.
Equipment Notes: Means the equipment notes issued under the Indentures.
ERISA: Means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor federal statute.
Escrow Agent: Means, initially, First Security Bank, National Association,
and any replacement or successor therefor appointed in accordance with the
Escrow Agreement.
Escrow Agreement: Means the Escrow and Paying Agent Agreement dated as of
March 21, 1997 relating to the Certificates, among the Escrow Agent, the
Escrow Paying Agent, the Trustee and the Initial Purchasers, 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.
Euroclear: Means the Euroclear System.
Event of Default: Means an Indenture Default under any Indenture pursuant
to which Equipment Notes held by the Trust were issued.
Exchange Certificates: Means the pass through certificates substantially
in the form of Exhibit A hereto issued in exchange for the Initial
Certificates pursuant to
16
8
the Registration Rights Agreement and authenticated hereunder.
Exchange Offer: Means the exchange offer which may be made pursuant to the
Registration Rights Agreement to exchange Initial Certificates for Exchange
Certificates.
Exchange Offer Registration Statement: Means the registration statement
that, pursuant to the Registration Rights Agreement, is filed by the Company
with the SEC with respect to the exchange of Initial Certificates for
Exchange Certificates.
Final Maturity Date: Means October 1, 2016.
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 2.02.
Financing Documents: With respect to any Equipment Note, means (i) the
Indenture and the Participation Agreement relating to such Equipment Note,
and (ii) in the case of any Equipment Note related to a Leased Aircraft, the
Lease relating to such Leased Aircraft.
Fractional Undivided Interest: Means the fractional undivided interest in
the Trust that is evidenced by a Certificate.
Global Certificates: Has the meaning specified in Section 3.01(d).
Global Exchange Certificate: Has the meaning specified in Section 3.01(f).
Indenture: Means each of the separate trust indentures and mortgages
relating to the Aircraft, each as specified or described in a Delivery Notice
delivered pursuant to the Note Purchase Agreement or the related
Participation Agreement, in each case as the same may be amended,
17
9
supplemented or otherwise modified from time to time in accordance with
its terms.
Indenture Default: With respect to any Indenture, means any Event of
Default (as such term is defined in such Indenture).
Initial Certificates: Means the certificates issued and authenticated
hereunder substantially in the form of Exhibit A hereto other than the
Exchange Certificates.
Initial Purchasers: Means, collectively, Credit Suisse First Boston
Corporation, Xxxxxx Xxxxxxx & Co. Incorporated, Chase Securities Inc. and
Xxxxxxx Xxxxx & Co.
Institutional Accredited Investor: Means an institutional investor that is
an "accredited investor" within the meaning set forth in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act.
Intercreditor Agreement: Means the Intercreditor Agreement dated as of
March 21, 1997 among the Trustee, the Other Trustees, the Liquidity
Providers, the liquidity providers relating to the Certificates issued under
(and as defined in) each of the Other Pass Through Trust Agreements, and
Wilmington Trust Company, as Subordination Agent and as trustee thereunder,
as amended, supplemented or otherwise modified from time to time in
accordance with its terms.
Investors: Means the Initial Purchasers together with all subsequent
beneficial owners of the Certificates.
Issuance Date: Means the date of the issuance of the Initial Certificates.
Lease: Means, with respect to each Leased Aircraft, the lease between an
Owner Trustee, as the lessor, and the Company, as the lessee, referred to in
the related Indenture, as such lease may be amended, supplemented or
otherwise modified in accordance with its terms.
Leased Aircraft: Has the meaning specified in the second recital to this
Agreement.
Liquidity Facility: Means, initially, (i) the Revolving Credit Agreement
dated as of March 21, 1997
18
10
relating to the Certificates, between ABN Amro Bank N.V. and the
Subordination Agent, as agent and trustee for the Trustee, and (ii) the
Revolving Credit Agreement dated as of March 21, 1997 relating to the
Certificates, between ING Bank N.V. and the Subordination Agent, as agent and
trustee for the Trustee, and, from and after the replacement of either such
Agreement pursuant to the Intercreditor Agreement, the replacement liquidity
facility therefor, in each case as amended, supplemented or otherwise
modified from time to time in accordance with their respective terms.
Liquidity Provider: Means, initially, each of ABN Amro Bank N.V. and ING
Bank N.V., and any replacement or successor therefor appointed in accordance
with the Intercreditor Agreement.
Loan Trustee: With respect to any Equipment Note or the Indenture
applicable thereto, means the bank or trust company designated as trustee
under such Indenture, together with any successor to such trustee appointed
pursuant thereto.
New Aircraft: Has the meaning specified in the Note Purchase Agreement.
Non-U.S. Person: Means a Person that is not a "U.S. person", as defined in
Regulation S.
Note Purchase Agreement: Means the Note Purchase Agreement dated as of
March 21, 1997 among the Trustee, the Other Trustees, the Company, the Escrow
Agent, the Escrow Paying Agent and the Subordination Agent, providing for,
among other things, the purchase of Equipment Notes by the Trustee on behalf
of the Trust, as the same may be amended, supplemented or otherwise modified
from time to time, in accordance with its terms.
Notice of Purchase Withdrawal: Has the meaning specified in the Deposit
Agreement.
Offering Circular: Means the Offering Circular dated March 21, 1997
relating to the offering of the Certificates and the certificates issued
under the Other Pass Through Trust Agreements.
19
11
Officer's Certificate: Means a certificate signed, (a) in the case of the
Company, by (i) the Chairman or Vice Chairman of the Board of Directors, the
President, any Executive Vice President, any Senior Vice President or the
Treasurer of the Company, signing alone, or (ii) any Vice President of the
Company signing together with the Secretary, the Assistant Secretary, the
Treasurer or any Assistant Treasurer of the Company or, (b) in the case of an
Owner Trustee or a Loan Trustee, a Responsible Officer of such Owner Trustee
or such Loan Trustee, as the case may be.
Opinion of Counsel: Means a written opinion of legal counsel who (a) in
the case of counsel for the Company may be (i) a senior attorney of the
Company one of whose principal duties is furnishing advice as to legal
matters, (ii) Xxxxxx Xxxxxxx & Xxxx LLP, or (iii) such other counsel
designated by the Company and reasonably acceptable to the Trustee and (b) in
the case of counsel for any Owner Trustee or any Loan Trustee may be such
counsel as may be designated by any of them whether or not such counsel is an
employee of any of them, and who shall be reasonably acceptable to the
Trustee.
Other Pass Through Trust Agreements: Means each of the three other
Continental Airlines 1997-1 Pass Through Trust Agreements relating to
Continental Airlines Pass Through Trust, Series 1997-1B-O, Continental
Airlines Pass Through Trust, Series 1997-1C-I-O, and Continental Airlines
Pass Through Trust, Series 1997-1C-II-O, dated the date hereof.
Other Trustees: Means the trustees under the Other Pass Through Trust
Agreements, and any successor or other trustee appointed as provided therein.
Other Trusts: Means the Continental Airlines Pass Through Trust, Series
1997-1B-O, Continental Airlines Pass Through Trust, Series 1997-1C-I-O, and
Continental Airlines Pass Through Trust, Series 1997-1C-II-O, created on the
date hereof.
Outstanding: When used with respect to Certificates, means, as of the date
of determination, all Certificates theretofore authenticated and delivered
under this Agreement, except:
20
12
(i) Certificates theretofore canceled by the Registrar or delivered to
the Trustee or the Registrar for cancellation;
(ii) Certificates for which money in the full amount required to make
the final distribution with respect to such Certificates pursuant to
Section 11.01 hereof has been theretofore deposited with the Trustee in
trust for the Holders of such Certificates as provided in Section 4.01
pending distribution of such money to such Certificateholders pursuant to
payment of such final distribution; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been authenticated and delivered pursuant to this
Agreement.
Owned Aircraft: Has the meaning specified in the second recital to this
Agreement.
Owner Participant: With respect to any Equipment Note relating to a Leased
Aircraft, means the "Owner Participant" as referred to in the Indenture
pursuant to which such Equipment Note is issued and any permitted successor
or assign of such Owner Participant; and Owner Participants at any time of
determination means all of the Owner Participants thus referred to in the
Indentures.
Owner Trustee: With respect to any Equipment Note relating to a Leased
Aircraft, means the "Owner Trustee", as referred to in the Indenture pursuant
to which such Equipment Note is issued, not in its individual capacity but
solely as trustee; and Owner Trustees means all of the Owner Trustees party
to any of the Indentures.
Participation Agreement: Means each Participation Agreement to be entered
into by the Trustee pursuant to the Note Purchase Agreement, as the same may
be amended, supplemented or otherwise modified in accordance with its terms.
Paying Agent: Means the paying agent maintained and appointed for the
Certificates pursuant to Section 7.12.
Permitted Investments: Means obligations of the United States of America
or agencies or instrumentalities thereof
21
13
for the payment of which the full faith and credit of the United States of
America is pledged, maturing in not more than 60 days after the date of
acquisition thereof or such lesser time as is required for the distribution
of any Special Payments on a Special Distribution Date.
Person: Means any person, including any individual, corporation, limited
liability company, partnership, joint venture, association, joint-stock
company, trust, trustee, unincorporated organization, or government or any
agency or political subdivision thereof.
Pool Balance: Means, as of any date, (i) the original aggregate face
amount of the Certificates less (ii) the aggregate amount of all payments
made in respect of such Certificates other than payments made in respect of
interest or premium thereon or reimbursement of any costs or expenses
incurred in connection therewith less (iii) the aggregate amount of unused
Deposits distributed as a Final Withdrawal other than payments in respect of
interest or premium thereon. The Pool Balance as of any Distribution Date
shall be computed after giving effect to the payment of principal, if any, on
the Equipment Notes or other Trust Property held in such Trust and the
distribution thereof to be made on such Distribution Date and the
distribution of the Final Withdrawal to be made on such Distribution Date.
Pool Factor: Means, as of any date, the quotient (rounded to the seventh
decimal place) computed by dividing (i) the Pool Balance as at such date by
(ii) the original aggregate face amount of the Certificates. The Pool Factor
as of any Distribution Date shall be computed after giving effect to the
payment of principal, if any, on the Equipment Notes or other Trust Property
and the distribution thereof to be made on such Distribution Date and the
distribution of the Final Withdrawal to be made on such Distribution Date.
PTC Event of Default: Means any failure to pay within 10 Business Days of
the due date thereof: (i) the outstanding Pool Balance on the Final Maturity
Date or (ii) interest due on the Certificates on any Distribution Date
(unless the Subordination Agent shall have made an Interest Drawing or
Drawings (as defined in the Intercreditor Agreement), or a withdrawal or
withdrawals pursuant to section 3.6(f) of the Intercreditor Agreement,
22
14
with respect thereto in an aggregate amount sufficient to pay such
interest and shall have distributed such amount to the Trustee).
QIB: Means a qualified institutional buyer as defined in Rule 144A.
Record Date: Means (i) for Scheduled Payments to be distributed on any
Regular Distribution Date, other than the final distribution, the 15th day
(whether or not a Business Day) preceding such Regular Distribution Date, and
(ii) for Special Payments to be distributed on any Special Distribution Date,
other than the final distribution, the 15th day (whether or not a Business
Day) preceding such Special Distribution Date.
Register and Registrar: Mean the register maintained and the registrar
appointed pursuant to Sections 3.04 and 7.12.
Registration Event: Means the declaration of the effectiveness by the SEC
of the Exchange Offer Registration Statement or the Shelf Registration
Statement.
Registration Rights Agreement: Means the Exchange and Registration Rights
Agreement dated as of March 21, 1997, among the Initial Purchasers, the
Trustee, the Other Trustees and the Company, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Regular Distribution Date: With respect to distributions of Scheduled
Payments in respect of the Certificates, means each date designated as a
Regular Distribution Date in the Certificates issued pursuant to this
Agreement, until payment of all the Scheduled Payments to be made under the
Equipment Notes held in the Trust have been made; 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.
Regulation S: Means Regulation S under the Securities Act or any successor
regulation thereto.
23
15
Regulation S Definitive Certificates: Has the meaning specified in Section
3.01(e).
Regulation S Global Certificates: Has the meaning specified in Section
3.01(d).
Related Pass Through Trust Agreement: Means the Continental Airlines
1997-1 Pass Through Trust Agreement relating to the Continental Airlines Pass
Through Trust, Series 1997-1A-S, dated the date hereof, entered into by the
Company and the institution acting as trustee thereunder, which agreement
becomes effective upon the execution and delivery of the Assignment and
Assumption Agreement pursuant to Section 11.01.
Related Trust: Means the Continental Pass Through Trust, Series 1997-1A-S,
formed under the Related Pass Through Trust Agreement.
Related Trustee: Means the trustee under the Related Pass Through Trust
Agreement.
Responsible Officer: With respect to the Trustee, any Loan Trustee and any
Owner Trustee, means any officer in the Corporate Trust Office of the
Trustee, Loan Trustee or Owner Trustee or any other officer customarily
performing functions similar to those performed by the persons who at the
time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of and familiarity with a
particular subject.
Restricted Definitive Certificates: Has the meaning specified in Section
3.01(e).
Restricted Global Certificate: Has the meaning specified in Section
3.01(c).
Restricted Legend: Has the meaning specified in Section 3.02.
Restricted Period: Has the meaning specified in Section 3.01(d).
Rule 144A: Means Rule 144A under the Securities Act and any successor rule
thereto.
24
16
Scheduled Payment: With respect to any Equipment Note, means (i) any
payment of principal or interest on such Equipment Note (other than any such
payment which is not in fact received by the Subordination Agent within five
days of the date on which such payment is scheduled to be made) due from the
obligor thereon or (ii) any payment of interest on the Certificates with
funds drawn under any Liquidity Facility, which payment represents the
installment of principal at the stated maturity of such installment of
principal on such Equipment Note, the payment of regularly scheduled interest
accrued on the unpaid principal amount of such Equipment Note, or both;
provided that any payment of principal, premium, if any, or interest
resulting from the redemption or purchase of any Equipment Note shall not
constitute a Scheduled Payment.
SEC: Means the Securities and Exchange Commission, as from time to time
constituted or created under the United States Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties on such
date.
Securities Act: Means the United States Securities Act of 1933, as amended
from time to time, or any successor thereto.
Shelf Registration Statement: Means the shelf registration statement which
may be required to be filed by the Company with the SEC pursuant to any
Registration Rights Agreement, other than an Exchange Offer Registration
Statement.
Special Distribution Date: Means each date on which a Special Payment is
to be distributed as specified in this Agreement; 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.
Special Redemption Premium: Means the premium payable by the Company in
respect of the Final Withdrawal pursuant to the Note Purchase Agreement.
25
17
Special Payment: Means any payment (other than a Scheduled Payment) in
respect of, or any proceeds of, any Equipment Note or Trust Indenture Estate
(as defined in each Indenture) or Special Redemption Premium.
Special Payments Account: Means the account or accounts created and
maintained pursuant to Section 4.01(b).
Subordination Agent: Has the meaning specified in the Intercreditor
Agreement.
Substitute Aircraft: Has the meaning specified in the Note Purchase
Agreement.
TIN: Has the meaning specified in Section 7.16.
Transfer Date: Has the meaning specified in Section 11.01.
Triggering Event: Has the meaning assigned to such term in the
Intercreditor Agreement.
Trust: Means the trust created by this Agreement, the estate of which
consists of the Trust Property.
Trust Indenture Act: Means the United States Trust Indenture Act of 1939,
as amended from time to time, or any successor thereto.
Trust Property: Means (i) the Equipment Notes held as the property of the
Trust and, subject to the Intercreditor Agreement, all monies at any time
paid thereon and all monies due and to become due thereunder, (ii) funds from
time to time deposited in the Certificate Account and the Special Payments
Account and, subject to the Intercreditor Agreement, any proceeds from the
sale by the Trustee pursuant to Article VI hereof of any Equipment Note and
(iii) all rights of the Trust and the Trustee, on behalf of the Trust, under
the Intercreditor Agreement, the Escrow Agreement, the Note Purchase
Agreement and the Liquidity Facilities, including, without limitation, all
rights to receive certain payments thereunder, and all monies paid to the
Trustee on behalf of the Trust pursuant to the Intercreditor Agreement or the
Liquidity Facilities, provided, that rights with respect to the Deposits or
under the Escrow Agreement, except for the right to direct
26
18
withdrawals for the purchase of Equipment Notes to be held herein, will
not constitute Trust Property.
Trustee: Means Wilmington Trust Company, or its successor in interest, and
any successor or other trustee appointed as provided herein.
Trustee's Lien: Has the meaning specified in Section 7.17.
Section 1.02. Compliance Certificates and Opinions. Upon any application
or request (except with respect to matters set forth in Article II) by the
Company, any Owner Trustee or any Loan Trustee to the Trustee to take any
action under any provision of this Agreement, the Company, such Owner Trustee
or such Loan Trustee, as the case may be, shall furnish to the Trustee (i) an
Officer's Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and (ii) an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Agreement relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Agreement (other than a certificate provided
pursuant to Section 8.04(e)) shall include:
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions in this Agreement
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
27
19
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters and any such Person may certify or give an opinion as to
such matters in one or several documents.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement or, in respect of the Certificates, this
Agreement, they may, but need not, be consolidated and form one instrument.
Section 1.04. Directions of Certificateholders. (a) Any direction,
consent, request, demand, authorization, notice, waiver or other action
provided by this Agreement to be given or taken by Certificateholders (a
"Direction") may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Certificateholders in person or by
an agent or proxy duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required pursuant to this Agreement, to the Company or any Loan Trustee. Proof
of execution of any such instrument or of a writing appointing any such agent
or proxy shall be sufficient for any purpose of this Agreement and conclusive
in favor of the Trustee, the Company and any Loan Trustee, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments of deeds
or administer oaths that the Person executing such instrument acknowledged to
him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or
28
20
such other officer and where such execution is by an officer of a corporation
or association or a member of a partnership, on behalf of such corporation,
association or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other reasonable manner which the Trustee deems
sufficient.
(c) In determining whether the Certificateholders of the requisite
Fractional Undivided Interests of Certificates Outstanding have given any
Direction under this Agreement, Certificates owned by the Company or any
Affiliate thereof shall be disregarded and deemed not to be Outstanding for
purposes of any such determination. In determining whether the Trustee shall
be protected in relying upon any such Direction, only Certificates which the
Trustee knows to be so owned shall be so disregarded. Notwithstanding the
foregoing, (i) if any such Person owns 100% of the Certificates Outstanding,
such Certificates shall not be so disregarded, and (ii) if any amount of
Certificates so owned by any such Person have been pledged in good faith, such
Certificates shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Certificates and that the pledgee is not the Company or any Affiliate thereof.
(d) For all purposes of this Agreement, all Initial Certificates and all
Exchange Certificates shall vote and take all other actions of
Certificateholders together as one series of Certificates.
(e) The Company may at its option, by delivery of an Officer's Certificate
to the Trustee, set a record date to determine the Certificateholders entitled
to give any Direction. Notwithstanding Section 316(c) of the Trust Indenture
Act, such record date shall be the record date specified in such Officer's
Certificate, which shall be a date not more than 30 days prior to the first
solicitation of Certificateholders in connection therewith. If such a record
date is fixed, such Direction may be given before or after such record date,
but only the Certificateholders of record at the close of business on such
record date shall be deemed to be Certificateholders for the purposes of
determining whether Certificateholders of the requisite proportion of
Outstanding Certificates have authorized or agreed or consented to such
Direction, and for that purpose
29
21
the Outstanding Certificates shall be computed as of such record date; provided
that no such Direction by the Certificateholders on such record date shall be
deemed effective unless it shall become effective pursuant to the provisions of
this Agreement not later than one year after such record date.
(f) Any Direction by the Holder of any Certificate shall bind the Holder
of every Certificate issued upon the transfer thereof or in exchange therefor
or in lieu thereof, whether or not notation of such Direction is made upon such
Certificate.
(g) Except as otherwise provided in Section 1.04(c), Certificates owned by
or pledged to any Person shall have an equal and proportionate benefit under
the provisions of this Agreement, without preference, priority, or distinction
as among all of the Certificates.
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF EQUIPMENT NOTES
Section 2.01. Issuance of Certificates; Acquisition of Equipment Notes.
(a) The Trustee is hereby directed (i) to execute and deliver the Intercreditor
Agreement, the Registration Rights Agreement, the Escrow Agreement and the Note
Purchase Agreement on or prior to the Issuance Date, each in the form delivered
to the Trustee by the Company and (ii) subject to the respective terms thereof,
to perform its obligations thereunder. Upon request of the Company and the
satisfaction or waiver of the closing conditions specified in the Certificate
Purchase Agreement, the Trustee shall execute, deliver, authenticate, issue and
sell Certificates in authorized denominations equalling in the aggregate the
amount set forth, with respect to the Trust, in Schedule II to the Certificate
Purchase Agreement evidencing the entire ownership interest in the Trust, which
amount equals the maximum aggregate principal amount of Equipment Notes which
may be purchased by the Trustee pursuant to the Note Purchase Agreement.
Except as provided in Sections 3.04, 3.05, 3.06, 3.07 and 3.10 hereof, the
Trustee shall not execute, authenticate or deliver Certificates in excess of
the aggregate amount specified in this paragraph.
30
22
(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 Equipment Notes.
After receipt of a Delivery Notice and in any case no later than one Business
Day prior to a Delivery Date as to which such Delivery Notice relates (the
"Applicable Delivery Date") (or, if the Issuance Date is an Applicable Delivery
Date, on the Issuance Date), the Trustee shall (as and when specified in the
Delivery Notice) instruct the Escrow Agent to provide a Notice of Purchase
Withdrawal to the Depositary requesting (A) the withdrawal of one or more
Deposits on the Applicable Delivery Date in accordance with and to the extent
permitted by the terms of the Escrow Agreement and the Deposit Agreement and
(B) the payment of all, or a portion, of such Deposit or Deposits in an amount
equal in the aggregate to the purchase price of such Equipment Notes to or on
behalf of the Owner Trustee or the Company, as the case may be, issuing such
Equipment Notes, all as shall be described in the Delivery Notice; provided
that, if the Issuance Date is an Applicable Delivery Date, such purchase price
shall be paid from a portion of the proceeds of the sale of the Certificates.
The Trustee shall (as and when specified in such Delivery Notice), subject to
the conditions set forth in Section 2 of the Note Purchase Agreement, 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 2(e) or 2(f) of the Note Purchase Agreement,
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 Note Purchase Agreement and the Applicable
Participation Agreement, the Trustee shall purchase the applicable Equipment
Notes with the proceeds of the withdrawals of one or more Deposits made on the
Applicable Delivery Date in accordance with the terms of the Deposit Agreement
and the Escrow Agreement (or, if the Issuance Date is Applicable Delivery Date
with respect to such Applicable Participation Agreement, from a portion of the
proceeds of the sale of the Certificates). The purchase price of such
Equipment Notes shall equal the principal amount of such Equipment Notes.
Amounts withdrawn from such Deposit or Deposits in excess of the purchase price
of the
31
23
Equipment Notes or to the extent not applied on the Applicable Delivery Date to
the purchase price of the Equipment Notes, shall be re-deposited by the Trustee
with the Depositary on the Applicable Delivery Date in accordance with the
terms of the Deposit Agreement.
Section 2.02. Withdrawal of Deposits. If any Deposits remain outstanding
on the Business Day next succeeding the Cut-Off Date, (i) (A) the Trustee shall
give the Escrow Agent notice that the Trustee's obligation to purchase
Equipment Notes under the Note Purchase Agreement 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") and (B) the Trustee will make a demand upon the Company
under the Note Purchase Agreement for an amount equal to the Special Redemption
Premium, such payment to be made on the Final Withdrawal Date.
Section 2.03. Acceptance by Trustee. The Trustee, upon the execution and
delivery of this 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 Certificateholders, upon the trusts herein set forth. Subject to
Section 7.14, the Trustee shall take all actions reasonably necessary to effect
the registration of all such Equipment Notes in the name of the Subordination
Agent. By its payment for and acceptance of each Certificate issued to it
under this Agreement, each initial Certificateholder as grantor of the Trust
thereby joins in the creation and declaration of the Trust.
Section 2.04. Limitation of Powers. The Trust is constituted solely for
the purpose of making the investment in the Equipment Notes, and, except as set
forth herein, the Trustee shall not be authorized or empowered to acquire any
other investments or engage in any other activities and, in particular, the
Trustee shall not be authorized or empowered to do anything that would cause
such Trust to fail to qualify as a "grantor trust" for federal income tax
purposes (including as subject to this restriction, acquiring any Aircraft (as
defined in the respective Indentures) by bidding such Equipment Notes or
otherwise, or taking any action with respect to any such Aircraft once
acquired).
32
24
ARTICLE III
THE CERTIFICATES
Section 3.01. Title, Form, Denomination and Execution of Certificates.
(a) The Initial Certificates shall be known as the "7.461% Initial Pass Through
Certificates, Series 1997-1A-0" and the Exchange Certificates shall be known as
the "7.461% Exchange Pass Through Certificates, Series 1997-1A-O", in each
case, of the Trust. Each Certificate will represent a fractional undivided
interest in the Trust and shall be substantially in the form set forth as
Exhibit A hereto, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Agreement and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
Trustee or the officers executing such Certificates, as evidenced by the
Trustee's or officer's execution of the Certificates. At the Escrow Agent's
request under the Escrow Agreement, the Trustee shall affix the corresponding
Escrow Receipt to each Certificate. In any event, any transfer or exchange of
any 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
Certificate shall be permitted unless the Corresponding Escrow Receipt is
attached thereto and also is so transferred or exchanged. By acceptance of any
Certificate to which an Escrow Receipt is attached, each Holder of such a
Certificate acknowledges and accepts the restrictions on transfer of the Escrow
Receipt set forth herein and in the Escrow Agreement.
(b) The Initial Certificates shall be issued only in fully registered form
without coupons and only in denominations of $100,000 or integral multiples of
$1,000 in excess thereof, except that one Certificate may be issued in a
different denomination. The Exchange Certificates will be issued in
denominations of $1,000 or integral multiples thereof, except that one
Certificate may be issued in a different denomination. Each Certificate shall
be dated the date of its authentication. The aggregate Fractional Undivided
Interest of Certificates shall not at any time exceed $437,876,000.
(c) The Initial Certificates offered and sold in reliance on Rule 144A
shall be issued in the form of one or more
33
25
global Certificates substantially in the form of Exhibit A hereto with such
applicable legends as are provided for in Section 3.02 (each a "Restricted
Global Certificate") duly executed and authenticated by the Trustee as
hereinafter provided. Such Restricted Global Certificates shall be in
registered form and be registered in the name of DTC and deposited with the
Trustee, at its Corporate Trust Office, as custodian for DTC. The aggregate
principal amount of any Restricted Global Certificate may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for DTC for such Restricted Global Certificate, as provided in
Section 3.06 hereof, which adjustments shall be conclusive as to the aggregate
principal amount of any such Global Certificate.
(d) The Initial Certificates offered and sold outside the United States in
reliance on Regulation S shall be issued in the form of one or more global
Certificates substantially in the form of Exhibit A hereto (each a "Regulation
S Global Certificate") duly executed and authenticated by the Trustee as
hereinafter provided. Such Regulation S Global Certificates shall be in
registered form and be registered in the name of DTC and deposited with the
Trustee, at its Corporate Trust Office, as custodian for DTC, for credit
initially and during the Restricted Period (hereinafter defined) to the
respective accounts of beneficial owners of such Certificates (or to such other
accounts as they may direct) at Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of Euroclear or Cedel. As used herein, the term
"Restricted Period", with respect to the Regulation S Global Certificates
offered and sold in reliance on Regulation S, means the period of 40
consecutive days beginning on and including the later of (i) the day on which
the Certificates are first offered to persons other than distributors (as
defined in Regulation S) in reliance on Regulation S and (ii) the date of the
closing of the offering under the Certificate Purchase Agreement. The
aggregate principal amount of any Regulation S Global Certificate may from time
to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for DTC for such Global Certificate, as provided in
Section 3.06 hereof, which adjustments shall be conclusive as to the aggregate
principal amount of any such Global Certificate. The Restricted Global
Certificate and Regulation S Global Certificate are sometimes collectively
referred to herein as the "Global Certificates".
34
26
(e) Initial Certificates offered and sold to any Institutional Accredited
Investor which is not a QIB in a transaction exempt from registration under the
Securities Act (and other than as described in Section 3.01(d)) shall be issued
substantially in the form of Exhibit A hereto in definitive, fully registered
form without interest coupons with such applicable legends as are provided for
in Section 3.02 (the "Restricted Definitive Certificates") duly executed and
authenticated by the Trustee as hereinafter provided. Certificates issued
pursuant to Section 3.05(b) in exchange for interests in a Regulation S Global
Certificate shall be issued in definitive, fully registered form without
interest coupons (the "Regulation S Definitive Certificates"). The Restricted
Definitive Certificates and the Regulation S Definitive Certificates are
sometimes collectively referred to herein as the "Definitive Certificates".
(f) The Exchange Certificates shall be issued in the form of one or more
global Certificates substantially in the form of Exhibit A hereto (each, a
"Global Exchange Certificate"), except that (i) the Restricted Legend
(hereinafter defined) shall be omitted and (ii) such Exchange Certificates
shall contain such appropriate insertions, omissions, substitutions and other
variations from the form set forth in Exhibit A hereto relating to the nature
of the Exchange Certificates as the Responsible Officer of the Trustee
executing such Exchange Certificates on behalf of the Trust may determine, as
evidenced by such officer's execution on behalf of the Trust of such Exchange
Certificates. Such Global Exchange Certificates shall be in registered form
and be registered in the name of DTC and deposited with the Trustee, at its
Corporate Trust Office, as custodian for DTC. The aggregate principal amount
of any Global Exchange Certificate may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
DTC for such Global Exchange Certificate, which adjustments shall be conclusive
as to the aggregate principal amount of any such Global Exchange Certificate.
Subject to clause (i) and (ii) of the first sentence of this Section 3.01(f),
the terms hereof applicable to Restricted Global Certificates and/or Global
Certificates shall apply to the Global Exchange Certificates, mutatis mutandis.
(g) The definitive Certificates shall be in registered form and shall be
typed, printed, lithographed or engraved or produced by any combination of
these methods or may be produced
35
27
in any other manner, all as determined by the officers executing such
Certificates, as evidenced by their execution of such Certificates.
Section 3.02. Restrictive Legends. All Initial Certificates issued
pursuant to this Agreement for resale pursuant to Rule 144A or offered and sold
to any Institutional Accredited Investor which is not a QIB (including any
Global Certificate issued upon registration of transfer, in exchange for or in
lieu of such Certificates) shall be "Restricted Certificates" and shall bear a
legend to the following effect (the "Restricted Legend") unless the Company and
the Trustee determine otherwise consistent with applicable law:
"THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3)
OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL
ACCREDITED INVESTOR") OR (c) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
CERTIFICATE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUANCE OF THIS CERTIFICATE OR THE LAST DATE ON WHICH
THIS CERTIFICATE WAS HELD BY CONTINENTAL AIRLINES, INC., THE TRUSTEE OR ANY
AFFILIATE OF ANY OF SUCH PERSONS RESELL OR OTHERWISE TRANSFER THIS
CERTIFICATE EXCEPT (A) TO CONTINENTAL AIRLINES, INC., (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(c) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR
(E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT;
AND (3) AGREES THAT IF IT SHOULD RESELL OR OTHERWISE TRANSFER THIS
CERTIFICATE IT WILL DELIVER TO EACH PERSON TO WHOM THIS CERTIFICATE IS
TRANSFERRED
36
28
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH
ANY TRANSFER OF THIS CERTIFICATE WITHIN TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE OF THIS CERTIFICATE OR THE LAST DATE ON WHICH THIS
CERTIFICATE WAS HELD BY CONTINENTAL AIRLINES, INC., THE TRUSTEE OR ANY
AFFILIATE OF ANY OF SUCH PERSONS, THE HOLDER MUST CHECK THE APPROPRIATE BOX
SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO
THEM BY REGULATION S UNDER THE SECURITIES ACT. THE PASS THROUGH TRUST
AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER
ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS."
Each Global Certificate shall bear the following legend on the face
thereof:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE 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 HEREON 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 AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL CERTIFICATE
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTIONS 3.05 AND 3.06 OF THE PASS THROUGH TRUST AGREEMENT REFERRED
TO HEREIN."
37
29
Section 3.03. Authentication of Certificates. (a) On the Issuance Date,
the Trustee shall duly execute, authenticate and deliver Certificates in
authorized denominations equalling in the aggregate the amount set forth, with
respect to the Trust, in Schedule II to the Certificate Purchase Agreement,
evidencing the entire ownership of the Trust, which amount equals the maximum
aggregate principal amount of Equipment Notes which may be purchased by the
Trustee pursuant to the Note Purchase Agreement.
(b) No Certificate shall be entitled to any benefit under this Agreement
or be valid or obligatory for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by the Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder.
Section 3.04. Transfer and Exchange. The Trustee shall cause to be kept
at the office or agency to be maintained by it in accordance with the
provisions of Section 7.12 a register (the "Register") of the Certificates in
which, subject to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of such Certificates and of transfers and
exchanges of such Certificates as herein provided. The Trustee shall initially
be the registrar (the "Registrar") for the purpose of registering such
Certificates and transfers and exchanges of such Certificates as herein
provided.
All Certificates issued upon any registration of transfer or exchange of
Certificates shall be valid obligations of the Trust, evidencing the same
interest therein, and entitled to the same benefits under this Trust Agreement,
as the Certificates surrendered upon such registration of transfer or exchange.
A Certificateholder may transfer a Certificate, or request that a
Certificate be exchanged for Certificates in an aggregate Fractional Undivided
Interest equal to the Fractional Undivided Interest of such Certificate
surrendered for exchange of other authorized denominations, by surrender of
such Certificate to the Trustee with the form of transfer notice thereon duly
completed and executed, and otherwise complying with the terms of this
Agreement, including providing evidence of compliance with any restrictions on
transfer, in form
38
30
satisfactory to the Trustee and the Registrar; provided that no exchanges of
Initial Certificates for Exchange Certificates shall occur until an Exchange
Offer Registration Statement shall have been declared effective by the SEC
(notice of which shall be provided to the Trustee by the Company). No such
transfer shall be effected until, and such transferee shall succeed to the
rights of a Certificateholder only upon, final acceptance and registration of
the transfer by the Registrar in the Register. Prior to the registration of
any transfer by a Certificateholder as provided herein, the Trustee shall treat
the person in whose name the Certificate is registered as the owner thereof for
all purposes, and the Trustee shall not be affected by notice to the contrary.
Furthermore, DTC shall, by acceptance of a Global Certificate, agree that
transfers of beneficial interests in such Global Certificate may be effected
only through a book-entry system maintained by DTC (or its agent) and that
ownership of a beneficial interest in the Certificate shall be required to be
reflected in a book-entry. When Certificates are presented to the Registrar
with a request to register the transfer thereof or to exchange them for other
authorized denominations of a Certificate in a Fractional Undivided Interest
equal to the aggregate Fractional Undivided Interest of Certificates
surrendered for exchange, the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transactions are met.
To permit registrations of transfers and exchanges in accordance with the
terms, conditions and restrictions hereof, the Trustee shall execute and
authenticate Certificates at the Registrar's request. No service charge shall
be made to a Certificateholder for any registration of transfer or exchange of
Certificates, but the Trustee shall require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates. All Certificates surrendered for
registration of transfer or exchange shall be canceled and subsequently
destroyed by the Trustee.
Section 3.05. Book-Entry Provisions for Restricted Global Certificates and
Regulation S Global Certificates. (a) Members of, or participants in, DTC
("Agent Members") shall have no rights under this Agreement with respect to any
Global Certificate held on their behalf by DTC, or the Trustee as its
custodian, and DTC may be treated by the Trustee and any agent of the Trustee
as the absolute owner of such Global Certificate for
39
31
all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Trustee or any agent of the Trustee from giving effect to any
written certification, proxy or other authorization furnished by DTC or shall
impair, as between DTC and its Agent Members, the operation of customary
practices governing the exercise of the rights of a holder of any Certificate.
Upon the issuance of any Global Certificate, the Registrar or its duly
appointed agent shall record DTC as the registered holder of such Global
Certificate.
(b) Transfers of any Global Certificate shall be limited to transfers of
such Restricted Global Certificate or Regulation S Global Certificate in whole,
but not in part, to DTC. Beneficial interests in the Restricted Global
Certificate and any Regulation S Global Certificate may be transferred in
accordance with the rules and procedures of DTC and the provisions of Section
3.06. Beneficial interests in a Restricted Global Certificate or a Regulation
S Global Certificate shall be delivered to all beneficial owners thereof in the
form of Restricted Definitive Certificates or Regulation S Definitive
Certificates, as the case may be, if (i) DTC notifies the Trustee that it is
unwilling or unable to continue as depositary for such Restricted Global
Certificate or Regulation S Global Certificate, as the case may be, and a
successor depositary is not appointed by the Trustee within 90 days of such
notice, and (ii) after the occurrence and during the continuance of an Event of
Default, owners of beneficial interests in a Global Certificate with Fractional
Undivided Interests aggregating not less than a majority in interest in the
Trust advise the Trustee, the Company and DTC through Agent Members in writing
that the continuation of a book-entry system through DTC or its successor is no
longer in their best interests.
(c) Any beneficial interest in one of the Global Certificates that is
transferred to a Person who takes delivery in the form of an interest in
another Global Certificate will, upon such transfer, cease to be an interest in
such Global Certificate and become an interest in the other Global Certificate
and, accordingly, will thereafter be subject to all transfer restrictions, if
any, and other procedures applicable to beneficial interests in such other
Global Certificate for as long as it remains such an interest.
(d) In connection with the transfer of an entire Restricted Global
Certificate or an entire Regulation S Global
40
32
Certificate to the beneficial owners thereof pursuant to paragraph (b) of this
Section 3.05, such Restricted Global Certificate or Regulation S Global
Certificate, as the case may be, shall be deemed to be surrendered to the
Trustee for cancellation, and the Trustee shall execute, authenticate and
deliver, to each beneficial owner identified by DTC in exchange for its
beneficial interest in such Restricted Global Certificate or Regulation S
Global Certificate, as the case may be, an equal aggregate principal amount of
Restricted Definitive Certificates or Regulation S Definitive Certificates, as
the case may be, of authorized denominations. None of the Company, the
Registrar, the Paying Agent nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such registration instructions. Upon the issuance of
Definitive Certificates, the Trustee shall recognize the Person in whose name
the Definitive Certificates are registered in the Register as
Certificateholders hereunder. Neither the Company nor the Trustee shall be
liable if the Trustee or the Company is unable to locate a qualified successor
clearing agency.
(e) Any Definitive Certificate delivered in exchange for an interest in
the Restricted Global Certificate pursuant to paragraph (b) of this Section
3.05 shall, except as otherwise provided by paragraph (e) of Section 3.06, bear
the Restricted Legend.
(f) Prior to the expiration of the Restricted Period, any Regulation S
Definitive Certificate delivered in exchange for an interest in a Regulation S
Global Certificate pursuant to paragraph (b) of this Section shall bear the
Restricted Legend.
(g) The registered holder of any Restricted Global Certificate or
Regulation S Global Certificate may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Agreement or the Certificates.
Section 3.06. Special Transfer Provisions. Unless and until (i) an
Initial Certificate is sold under an effective Shelf Registration Statement, or
(ii) an Initial Certificate is exchanged for an Exchange Certificate pursuant
to an effective Exchange Offer Registration Statement, in each case pursuant to
41
33
the terms of the Registration Rights Agreement, the following provisions shall
apply to such Initial Certificates:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Certificate to any Institutional Accredited
Investor which is neither a QIB nor a Non-U.S. Person:
(i) The Registrar shall register the transfer of any
Certificate, whether or not bearing the Restricted Legend, only if
(x) the requested transfer is at least two years after the later of
the original issue date of the Certificates and the last date on
which such Certificate was held by the Company, the Trustee or any
affiliate of any of such Persons or (y) the proposed transferor is
an Initial Purchaser who is transferring Certificates purchased
under the Certificates Purchase Agreement and the proposed
transferee has delivered to the Registrar a letter substantially in
the form of Exhibit C hereto and the aggregate principal amount of
the Certificates being transferred is at least $100,000. Except as
provided in the foregoing clause (y), the Registrar shall not
register the transfer of any Certificate to any Institutional
Accredited Investor which is neither a QIB nor a Non-U.S. Person.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in a Restricted Global Certificate, upon
receipt by the Registrar of (x) the documents, if any, required by
paragraph (i) and (y) instructions given in accordance with DTC's
and the Registrar's procedures, the Registrar shall reflect on its
books and records the date of the transfer and a decrease in the
principal amount of such Restricted Global Certificate in an amount
equal to the principal amount of the beneficial interest in such
Restricted Global Certificate to be transferred, and the Trustee
shall execute, authenticate and deliver to the transferor or at its
direction, one or more Restricted Definitive Certificates of like
tenor and amount.
42
34
(b) Transfers to QIBs. The following provisions shall apply with respect
to the registration of any proposed transfer of an Initial Certificate to a QIB
(excluding Non-U.S. Persons):
(i) If the Certificate to be transferred consists of
Restricted Definitive Certificates, or of an interest in any
Regulation S Global Certificate during the Restricted Period, the
Registrar shall register the transfer if such transfer is being
made by a proposed transferor who has checked the box provided for
on the form of Initial Certificate stating, or has otherwise
advised the Trustee and the Registrar in writing, that the sale has
been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the
form of Initial Certificate stating, or has otherwise advised the
Trustee and the Registrar in writing, that it is purchasing the
Initial Certificate for its own account or an account with respect
to which it exercises sole investment discretion and that it, or
the Person on whose behalf it is acting with respect to any such
account, is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Trust and/or the Company as it has requested pursuant to Rule 144A
or has determined not to request such information and that it is
aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A.
(ii) Upon receipt by the Registrar of the documents required
by clause (i) above and instructions given in accordance with DTC's
and the Registrar's procedures therefor, the Registrar shall
reflect on its books and records the date of such transfer and an
increase in the principal amount of a Restricted Global Certificate
in an amount equal to the principal amount of the Restricted
Definitive Certificates or interests in such Regulation S Global
Certificate, as the case may be, being transferred, and the Trustee
shall cancel such Definitive Certificates or decrease the amount of
such Regulation S Global Certificate so transferred.
43
35
(c) Transfers of Interests in the Regulation S Global Certificate or
Regulation S Definitive Certificates. After the expiration of the
Restricted Period, the Registrar shall register any transfer of interests
in any Regulation S Global Certificate or Regulation S Definitive
Certificates without requiring any additional certification. Until the
expiration of the Restricted Period, interests in the Regulation S Global
Certificate may only be held through Agent Members acting for and on
behalf of Euroclear and Cedel.
(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any registration of any transfer
of an Initial Certificate to a Non-U.S. Person:
(i) Prior to the expiration of the Restricted Period, the
Registrar shall register any proposed transfer of an Initial
Certificate to a Non-U.S.Person upon receipt of a certificate
substantially in the form set forth as Exhibit B hereto from the
proposed transferor.
(ii) After the expiration of the Restricted Period, the
Registrar shall register any proposed transfer to any Non-U.S.
Person if the Certificate to be transferred is a Restricted
Definitive Certificate or an interest in a Restricted Global
Certificate, upon receipt of a certificate substantially in the
form of Exhibit B from the proposed transferor. The Registrar
shall promptly send a copy of such certificate to the Company.
(iii) Upon receipt by the Registrar of (x) the documents, if
any, required by clause (ii) and (y) instructions in accordance
with DTC's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date of such transfer and a
decrease in the principal amount of such Restricted Global
Certificate in an amount equal to the principal amount of the
beneficial interest in such Restricted Global Certificate to be
transferred, and, upon receipt by the Registrar of instructions
given in accordance with DTC's and the Registrar's procedures, the
Registrar shall reflect on its books and records the
44
36
date and an increase in the principal amount of the Regulation S
Global Certificate in an amount equal to the principal amount of
the Restricted Definitive Certificate or the Restricted Global
Certificate, as the case may be, to be transferred, and the Trustee
shall cancel the Definitive Certificate, if any, so transferred or
decrease the amount of such Restricted Global Certificate.
(e) Restricted Legend. Upon the transfer, exchange or replacement
of Certificates not bearing the Restricted Legend, the Registrar shall
deliver Certificates that do not bear the Restricted Legend. Upon the
transfer, exchange or replacement of Certificates bearing the Restricted
Legend, the Registrar shall deliver only Certificates that bear the
Restricted Legend unless either (i) the circumstances contemplated by
paragraph (d)(ii) of this Section 3.06 exist or (ii) there is delivered
to the Registrar an Opinion of Counsel to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act.
(f) General. By acceptance of any Certificate bearing the
Restricted Legend, each Holder of such a Certificate acknowledges the
restrictions on transfer of such Certificate set forth in this Agreement
and agrees that it will transfer such Certificate only as provided in
this Agreement. The Registrar shall not register a transfer of any
Certificate unless such transfer complies with the restrictions on
transfer, if any, of such Certificate set forth in this Agreement. In
connection with any transfer of Certificates, each Certificateholder
agrees by its acceptance of the Certificates to furnish the Registrar or
the Trustee such certifications, legal opinions or other information as
either of them may reasonably require to confirm that such transfer is
being made pursuant to an exemption from, or a transaction not subject
to, the registration requirements of the Securities Act and in accordance
with the terms and provisions of this Article III; provided that the
Registrar shall not be required to determine the sufficiency of any such
certifications, legal opinions or other information.
45
37
Until such time as no Certificates remain Outstanding, the Registrar shall
retain copies of all letters, notices and other written communications received
pursuant to Section 3.05 or this Section 3.06. The Trustee, if not the
Registrar at such time, shall have the right to inspect and make copies of all
such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Registrar.
Section 3.07. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate is surrendered to the Registrar or the Registrar
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Registrar and the Trustee such
security, indemnity or bond, as may be required by them to save each of them
harmless, then, in the absence of notice to the Registrar or the Trustee that
such destroyed, lost or stolen Certificate 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 Trustee
shall execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate or
Certificates, in authorized denominations and of like Fractional Undivided
Interest and bearing a number not contemporaneously outstanding.
In connection with the issuance of any new Certificate under this Section
3.07, the Trustee 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 Trustee and the
Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section 3.07 shall
constitute conclusive evidence of the appropriate Fractional Undivided Interest
in the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Certificate 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 Certificates.
46
38
Section 3.08. Persons Deemed Owners. Prior to due presentment of a
Certificate for registration of transfer, the Trustee, the Registrar and any
Paying Agent may treat the Person in whose name any Certificate is registered
(as of the day of determination) as the owner of such Certificate for the
purpose of receiving distributions pursuant to Article IV and for all other
purposes whatsoever, and none of the Trustee, the Registrar or any Paying Agent
shall be affected by any notice to the contrary.
Section 3.09. Cancellation. All Certificates surrendered for payment or
transfer or exchange shall, if surrendered to the Trustee or any agent of the
Trustee other than the Registrar, be delivered to the Registrar for
cancellation and shall promptly be canceled by it. No Certificates shall be
authenticated in lieu of or in exchange for any Certificates canceled as
provided in this Section, except as expressly permitted by this Agreement. All
canceled Certificates held by the Registrar shall be destroyed and a
certification of their destruction delivered to the Trustee.
Section 3.10. Temporary Certificates. Until definitive Certificates are
ready for delivery, the Trustee shall authenticate temporary Certificates.
Temporary Certificates shall be substantially in the form of definitive
Certificates but may have insertions, substitutions, omissions and other
variations determined to be appropriate by the officers executing the temporary
Certificates, as evidenced by their execution of such temporary Certificates.
If temporary Certificates are issued, the Trustee will cause definitive
Certificates to be prepared without unreasonable delay. After the preparation
of definitive Certificates, the temporary Certificates shall be exchangeable
for definitive Certificates upon surrender of the temporary Certificates at the
office or agency of the Trustee designated for such purpose pursuant to Section
7.12, without charge to the Certificateholder. Upon surrender for cancellation
of any one or more temporary Certificates, the Trustee shall execute,
authenticate and deliver in exchange therefor a like face amount of definitive
Certificates of authorized denominations. Until so exchanged, the temporary
Certificates shall be entitled to the same benefits under this Agreement as
definitive Certificates.
Section 3.11. Limitation of Liability for Payments. All payments and
distributions made to Certificateholders in
47
39
respect of the Certificates 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
Article IV of this Agreement. Each Certificateholder, by its acceptance of a
Certificate, agrees that it will look solely to the income and proceeds from
the Trust Property for any payment or distribution due to such
Certificateholder pursuant to the terms of this Agreement and that it will not
have any recourse to the Company, the Trustee, the Loan Trustees, the Liquidity
Providers, the Owner Trustees or the Owner Participants, except as otherwise
expressly provided herein or in the Intercreditor Agreement.
The Company is a party to this Agreement solely for purposes of meeting
the requirements of the Trust Indenture Act, and therefore shall not have any
right, obligation or liability hereunder (except as otherwise expressly
provided herein).
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments Account. (a) The
Trustee shall establish and maintain on behalf of the Certificateholders a
Certificate Account as one or more non-interest-bearing accounts. The Trustee
shall hold the Certificate Account in trust for the benefit of the
Certificateholders, and shall make or permit withdrawals therefrom only as
provided in this Agreement. On each day when a Scheduled Payment is made to
the Trustee under the Intercreditor Agreement, the Trustee upon receipt thereof
shall immediately deposit the aggregate amount of such Scheduled Payment in the
Certificate Account.
(b) The Trustee shall establish and maintain on behalf of the
Certificateholders a Special Payments Account as one or more accounts, which
shall be non-interest bearing except as provided in Section 4.04. The Trustee
shall hold the Special Payments Account in trust for the benefit of the
Certificateholders and shall make or permit withdrawals therefrom only as
provided in this Agreement. On each day when one or more Special Payments are
made to the Trustee under the Intercreditor Agreement and upon the payment of
the Special Redemption Premium to the Trustee under the Note Purchase
Agreement, the Trustee,
48
40
upon receipt thereof, shall immediately deposit the aggregate amount of such
Special Payments in the Special Payments Account.
(c) The Trustee shall cause the Subordination Agent to present to the
related Loan Trustee of each Equipment Note such Equipment Note on the date of
its stated final maturity or, in the case of any Equipment Note which is to be
redeemed in whole pursuant to the related Indenture, on the applicable
redemption date under such Indenture.
Section 4.02. Distributions from Certificate Account and Special Payments
Account. (a) On each Regular Distribution Date or as soon thereafter as the
Trustee has confirmed receipt of the payment of all or any part of the
Scheduled Payments due on such date, the Trustee shall distribute out of the
Certificate Account the entire amount deposited therein pursuant to Section
4.01(a). There shall be so distributed to each Certificateholder of record on
the Record Date with respect to such Regular Distribution Date (other than as
provided in Section 11.01 concerning the final distribution) by check mailed to
such Certificateholder, at the address appearing in the Register, such
Certificateholder's pro rata share (based on the Fractional Undivided Interest
in the Trust held by such Certificateholder) of the total amount in the
Certificate Account, except that, with respect to Certificates 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.
(b) On each Special Distribution Date with respect to any Special Payment
or as soon thereafter as the Trustee has confirmed receipt of any Special
Payments due on the Equipment Notes held in the related Trust or realized upon
the sale of such Equipment Notes or receipt of the Special Redemption Premium,
the Trustee shall distribute out of the Special Payments Account the entire
amount of such Special Payment deposited therein pursuant to Section 4.01(b).
There shall be so distributed to each Certificateholder of record on the Record
Date with respect to such Special Distribution Date (other than as provided in
Section 11.01 concerning the final distribution) by check mailed to such
Certificateholder, at the address appearing in the Register, such
Certificateholder's pro rata share (based on the Fractional Undivided Interest
in the Trust held by such Certificateholder) of the total amount in the Special
Payments Account on account of such Special Payment, except that, with
49
41
respect to Certificates 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) The Trustee shall, at the expense of the Company, cause notice of each
Special Payment to be mailed to each Certificateholder at his address as it
appears in the Register. In the event of redemption or purchase of Equipment
Notes held in the Trust, such notice shall be mailed not less than 20 days
prior to the Special Distribution Date for the Special Payment resulting from
such redemption or purchase, which Special Distribution Date shall be the date
of such redemption or purchase. In the event of the payment of a Special
Redemption Premium by the Company to the Trustee under the Note Purchase
Agreement, such notice shall be mailed, together with the notice by the Escrow
Paying Agent under Section 2.06 of the Escrow Agreement, not less than 20 days
prior to the Special Distribution Date for such amount, which Special
Distribution Date shall be the Final Withdrawal Date. In the case of any other
Special Payments, such notice shall be mailed as soon as practicable after the
Trustee has confirmed that it has received funds for such Special Payment,
stating the Special Distribution Date for such Special Payment which shall
occur not less than 20 days after the date of such notice and as soon as
practicable thereafter. Notices mailed by the Trustee shall set forth:
(i) the Special Distribution Date and the Record Date therefor
(except as otherwise provided in Section 11.01),
(ii) the amount of the Special Payment for each $1,000 face
amount Certificate and the amount thereof constituting principal,
premium, if any, and interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a
Regular Distribution Date, the total amount to be received on such
date for each $1,000 face amount Certificate.
If the amount of (i) premium, if any, payable upon the redemption or purchase
of an Equipment Note or (ii) the Special Redemption Premium, if any, has not
been calculated at the time that the Trustee mails notice of a Special Payment,
it shall be sufficient
50
42
if the notice sets forth the other amounts to be distributed and states that
any premium received will also be distributed.
If any redemption of the Equipment Notes held in the Trust is canceled,
the Trustee, as soon as possible after learning thereof, shall cause notice
thereof to be mailed to each Certificateholder at its address as it appears on
the Register.
Section 4.03. Statements to Certificateholders. (a) On each Distribution
Date, the Trustee will include with each distribution to 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,
including any Special Redemption Premium, 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 Certificate as to (ii),
(iii), (iv) and (v) below) the following information:
(i) the aggregate amount of funds distributed on such
Distribution Date hereunder and under the Escrow Agreement,
indicating the amount allocable to each source;
(ii) the amount of such distribution hereunder allocable to
principal and the amount allocable to premium (including the
Special Redemption Premium), if any;
(iii) the amount of such distribution hereunder allocable to
interest; and
(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 Deposits; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Certificates registered in the name of DTC, on the
Record Date prior to each Distribution Date, the Trustee will request from DTC
a securities position listing setting forth the names of all Agent Members
reflected on DTC's books as holding interests in the Certificates on such
Record Date. On each Distribution Date, the Trustee will mail to
51
43
each such Agent Member the statement described above and will make available
additional copies as requested by such Agent Member for forwarding to holders
of interests in the 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 a
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 a
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 a Certificateholder shall reasonably request as necessary for
the purpose of such 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 Agent Members and shall be delivered
by the Trustee to such Agent Members to be available for forwarding by such
Agent Members to the holders of interests in the Certificates in the manner
described in Section 4.03(a).
(c) Promptly following (i) the Delivery Period Termination Date, if there
has been any change in the information set forth in clauses (x), (y) and (z)
below from that set forth in page 81 of the Offering Circular, and (ii) any
early redemption of purchase of, or any default in the payment of principal or
interest in respect of, any of the Equipment Notes held in the Trust, or any
Final Withdrawal, the Trustee shall furnish to Certificateholders of record on
such date a statement setting forth (x) the expected Pool Balances for each
subsequent Regular Distribution Date following the Delivery Period Termination
Date, (y) the related Pool Factors for such Regular Distribution Dates and (z)
the expected principal distribution schedule of the Equipment Notes, in the
aggregate, held as Trust Property at the date of such notice. With respect to
the Certificates registered in the name of DTC, on the Delivery Period
Termination Date, the Trustee will request from DTC a securities position
listing setting forth the names of all Agent Members reflected on DTC's books
as holding interests in the Certificates on such date. The Trustee will mail
to each such Agent Member the statement described above and will make
52
44
available additional copies as requested by such Agent Member for forwarding to
holders of interests in the Certificates.
Section 4.04. Investment of Special Payment Moneys. Any money received by
the Trustee pursuant to Section 4.01(b) representing a Special Payment which is
not distributed on the date received shall, to the extent practicable, be
invested in Permitted Investments by the Trustee pending distribution of such
Special Payment pursuant to Section 4.02. Any investment made pursuant to this
Section 4.04 shall be in such Permitted Investments having maturities not later
than the date that such moneys are required to be used to make the payment
required under Section 4.02 on the applicable Special Distribution Date and the
Trustee shall hold any such Permitted Investments until maturity. The Trustee
shall have no liability with respect to any investment made pursuant to this
Section 4.04, other than by reason of the willful misconduct or negligence of
the Trustee. All income and earnings from such investments shall be
distributed on such Special Distribution Date as part of such Special Payment.
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence. The Company, at its own
cost and expense, will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence, rights and
franchises, except as otherwise specifically permitted in Section 5.02;
provided, however, that the Company shall not be required to preserve any right
or franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
Section 5.02. Consolidation, Merger, etc. The Company shall not
consolidate with or merge into any other corporation or convey, transfer or
lease substantially all of its assets as an entirety to any Person unless:
(a) the corporation formed by such consolidation or into which the Company
is merged or the Person that acquires by conveyance, transfer or lease
substantially all of the assets of the Company as an entirety shall be (i)
organized and validly existing under the laws of the United States of America
or any
53
45
state thereof or the District of Columbia, (ii) a "citizen of the United
States" as defined in 49 U.S.C. 40102(a)(15), as amended, and (iii) a United
States certificated air carrier, if and so long as such status is a condition
of entitlement to the benefits of Section 1110 of the Bankruptcy Reform Act of
1978, as amended (11 U.S.C. Section 1110), with respect to the Leases;
(b) the corporation formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance, transfer or lease
substantially all of the assets of the Company as an entirety shall execute and
deliver to the Trustee a duly authorized, valid, binding and enforceable
agreement in form and substance reasonably satisfactory to the Trustee
containing an assumption by such successor corporation or Person of the due and
punctual performance and observance of each covenant and condition of this
Agreement, the Other Pass Through Trust Agreements and each Financing Document
to be performed or observed by the Company; and
(c) the Company shall have delivered to the Trustee an Officer's
Certificate of the Company and an Opinion of Counsel of the Company reasonably
satisfactory to the Trustee, each stating that such consolidation, merger,
conveyance, transfer or lease and the assumption agreement mentioned in clause
(b) above comply with this Section 5.02 and that all conditions precedent
herein provided for relating to such transaction have been complied with.
Upon any consolidation or merger, or any conveyance, transfer or lease of
substantially all of the assets of the Company as an entirety in accordance
with this Section 5.02, the successor corporation or Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Agreement with the
same effect as if such successor corporation or Person had been named as the
Company herein. No such conveyance, transfer or lease of substantially all of
the assets of the Company as an entirety shall have the effect of releasing any
successor corporation or Person which shall have become such in the manner
prescribed in this Section 5.02 from its liability in respect of this Agreement
and any Financing Document to which it is a party.
54
46
ARTICLE VI
DEFAULT
Section 6.01. Events of Default. (a) Exercise of Remedies. Upon the
occurrence and during the continuation of any Indenture Default under any
Indenture, the Trustee may, to the extent it is the Controlling Party at such
time (as determined pursuant to the Intercreditor Agreement), direct the
exercise of remedies as provided in the Intercreditor Agreement.
(b) Purchase Rights of Certificateholders. By acceptance of its
Certificate, each Certificateholder agrees that at any time after the
occurrence and during the continuation of a Triggering Event,
(i) each Class B Certificateholder shall have the right to
purchase all, but not less than all, of the Certificates upon ten
days' written notice to the Trustee and each other Class B
Certificateholder, provided that (A) if prior to the end of such
ten-day period any other Class B Certificateholder notifies such
purchasing Class B Certificateholder that such other Class B
Certificateholder wants to participate in such purchase, then such
other Class B Certificateholder may join with the purchasing Class
B Certificateholder to purchase all, but not less than all, of the
Certificates pro rata based on the Fractional Undivided Interest in
the Class B Trust held by each such Class B Certificateholder and
(B) if prior to the end of such ten-day period any other Class B
Certificateholder fails to notify the purchasing Class B
Certificateholder of such other Class B Certificateholder's desire
to participate in such a purchase, then such other Class B
Certificateholder shall lose its right to purchase the Certificates
pursuant to this Section 6.01(b); and
(ii) each holder of a Class C-I Certificate or a Class C-II
Certificate (a "Class C Certificateholder") shall have the right
(which shall not expire upon any purchase of the Certificates
pursuant to clause (i) above) to purchase all, but not less than
all, of the Certificates and the Class B Certificates upon ten
days' written notice to the Trustee, the Class B
55
47
Trustee and each other Class C Certificateholder, provided that (A)
if prior to the end of such ten-day period any other Class C
Certificateholder notifies such purchasing Class C
Certificateholder that such other Class C Certificateholder wants
to participate in such purchase, then such other Class C
Certificateholder may join with the purchasing Class C
Certificateholder to purchase all, but not less than all, of the
Certificates and the Class B Certificates pro rata based on the
Fractional Undivided Interest in the Class C-I Trust and the Class
C-II Trust, taken as a whole, held by each such Class C
Certificateholder and (B) if prior to the end of such ten-day
period any other Class C Certificateholder fails to notify the
purchasing Class C Certificateholder of such other Class C
Certificateholder's desire to participate in such a purchase, then
such other Class C Certificateholder shall lose its right to
purchase the Certificates pursuant to this Section 6.01(b).
The purchase price with respect to the Certificates shall be equal to the
Pool Balance of the Certificates, together with accrued and unpaid interest
thereon to the date of such purchase, without premium, but including any other
amounts then due and payable to the Certificateholders under this Agreement,
the Intercreditor Agreement, the Escrow Agreement or any Financing Document or
on or in respect of the Certificates; provided, however, that (i) if such
purchase occurs after the record date specified in Section 2.03(b) of the
Escrow Agreement relating to the distribution of unused Deposits and accrued
and unpaid interest thereunder, such purchase price shall be reduced by the
aggregate amount of unused Deposits and interest to be distributed under the
Escrow Agreement (which deducted amounts shall remain distributable to, and may
be retained by, the Certificateholder as of such Record Date) and (ii) if such
purchase occurs after a Record Date, such purchase price shall be reduced by
the amount to be distributed hereunder on the related Distribution Date (which
deducted amounts shall remain distributable to, and may be retained by, the
Certificateholder as of such Record Date); provided, further, that no such
purchase of Certificates shall be effective unless the purchaser(s) shall
certify to the Trustee that contemporaneously with such purchase, such
purchaser(s) is purchasing, pursuant to the terms of this Agreement and the
Other Pass Through Trust Agreements, the Certificates and the Class B
Certificates which are senior to the
56
48
securities held by such purchaser(s). Each payment of the purchase price of
the Certificates referred to in the first sentence hereof shall be made to an
account or accounts designated by the Trustee and each such purchase shall be
subject to the terms of this Section 6.01(b). Each Certificateholder agrees by
its acceptance of its Certificate that it will, subject to Section 3.04 hereof,
upon payment from such Class B Certificateholder(s) or Class C
Certificateholder(s), as the case may be, of the purchase price set forth in
the first sentence of this paragraph, forthwith sell, assign, transfer and
convey to the purchaser(s) thereof (without recourse, representation or
warranty of any kind except for its own acts), all of the right, title,
interest and obligation of such Certificateholder in this Agreement, the Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity
Facility, the Financing Documents and all Certificates and Escrow Receipts held
by such Certificateholder (excluding all right, title and interest under any of
the foregoing to the extent such right, title or interest is with respect to an
obligation not then due and payable as respects any action or inaction or state
of affairs occurring prior to such sale) and the purchaser shall assume all of
such Certificateholder's obligations under this Agreement, the Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity
Facility, the Financing Documents and all such Certificates and Escrow
Receipts. The Certificates will be deemed to be purchased on the date payment
of the purchase price is made notwithstanding the failure of the
Certificateholders to deliver any Certificates (whether in the form of
Definitive Certificates or beneficial interests in Global Certificates) and,
upon such a purchase, (i) the only rights of the Certificateholders will be to
deliver the Certificates to the purchaser(s) and receive the purchase price for
such Certificates and (ii) if the purchaser(s) shall so request, such
Certificateholder will comply with all the provisions of Section 3.04 hereof to
enable new Certificates to be issued to the purchaser in such denominations as
it shall request. All charges and expenses in connection with the issuance of
any such new Certificates shall be borne by the purchaser thereof.
As used in this Section 6.01(b), the terms "Certificateholder", "Class",
"Class B Certificate", "Class B Certificateholder", "Class B Trust", "Class B
Trustee",
"Class C-I Certificate", "Class C-II Certificate", "Class C-I Trust" and
"Class C-II Trust", shall have the
57
49
respective meanings assigned to such terms in the Intercreditor Agreement.
Section 6.02. Incidents of Sale of Equipment Notes. Upon any sale of all
or any part of the Equipment Notes made either under the power of sale given
under this Agreement or otherwise for the enforcement of this Agreement, the
following shall be applicable:
(1) Certificateholders and Trustee May Purchase Equipment Notes. Any
Certificateholder, the Trustee in its individual or any other capacity or any
other Person may bid for and purchase any of the Equipment Notes, and upon
compliance with the terms of sale, may hold, retain, possess and dispose of
such Equipment Notes in their own absolute right without further
accountability.
(2) Receipt of Trustee Shall Discharge Purchaser. The receipt of the
Trustee making such sale shall be a sufficient discharge to any purchaser for
his purchase money, and, after paying such purchase money and receiving such
receipt, such purchaser or its personal representative or assigns shall not
be obliged to see to the application of such purchase money, or be in any way
answerable for any loss, misapplication or non-application thereof.
(3) Application of Moneys Received upon Sale. Any moneys collected by the
Trustee upon any sale made either under the power of sale given by this
Agreement or otherwise for the enforcement of this Agreement shall be applied
as provided in Section 4.02.
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee May
Bring Suit. If there shall be a failure to make payment of the principal of,
premium, if any, or interest on any Equipment Note, or if there shall be any
failure to pay Rent (as defined in the relevant Lease) under any Lease when due
and payable, then the Trustee, in its own name and as trustee of an express
trust, as holder of such Equipment Notes, to the extent permitted by and in
accordance with the terms of the Intercreditor Agreement and the Financing
Documents (subject to the rights of the applicable Owner Trustee or Owner
Participant to cure any such failure to pay principal of, premium, if any, or
interest on any Equipment Note or to pay Rent under any Lease in accordance
with the applicable Indenture), shall be entitled and
58
50
empowered to institute any suits, actions or proceedings at law, in equity or
otherwise, for the collection of the sums so due and unpaid on such Equipment
Notes or under such Lease and may prosecute any such claim or proceeding to
judgment or final decree with respect to the whole amount of any such sums so
due and unpaid.
Section 6.04. Control by Certificateholders. Subject to Section 6.03 and
the Intercreditor Agreement, the Certificateholders holding Certificates
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Trust shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee with
respect to the Trust or pursuant to the terms of the Intercreditor Agreement,
or exercising any trust or power conferred on the Trustee under this Agreement
or the Intercreditor Agreement, including any right of the Trustee as
Controlling Party under the Intercreditor Agreement or as holder of the
Equipment Notes, provided that
(1) such Direction shall not be in conflict with any rule of law or with
this Agreement and would not involve the Trustee in personal liability or
expense,
(2) the Trustee shall not determine that the action so directed would be
unjustly prejudicial to the Certificateholders not taking part in such
Direction, and
(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such Direction.
Section 6.05. Waiver of Past Defaults. Subject to the Intercreditor
Agreement, the Certificateholders holding Certificates evidencing Fractional
Undivided Interests aggregating not less than a majority in interest in the
Trust (i) may on behalf of all of the Certificateholders waive any past Event
of Default hereunder and its consequences or (ii) if the Trustee is the
Controlling Party, may direct the Trustee to instruct the applicable Loan
Trustee to waive any past Indenture Default under any Indenture and its
consequences, and thereby annul any Direction given by such Certificateholders
or the Trustee to such Loan Trustee with respect thereto, except a default:
59
51
(1) in the deposit of any Scheduled Payment or Special Payment under
Section 4.01 or in the distribution of any payment under Section 4.02 on the
Certificates, or
(2) in the payment of the principal of (premium, if any) or interest on
the Equipment Notes, or
(3) in respect of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of each Certificateholder
holding an Outstanding Certificate affected thereby.
Upon any such waiver, such default shall cease to exist with respect to
the Certificates and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose and any direction given by the Trustee on
behalf of the Certificateholders to the relevant Loan Trustee shall be annulled
with respect thereto; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon. Upon
any such waiver, the Trustee shall vote the Equipment Notes issued under the
relevant Indenture to waive the corresponding Indenture Default.
Section 6.06. Right of Certificateholders to Receive Payments Not to Be
Impaired. Anything in this Agreement to the contrary notwithstanding,
including, without limitation, Section 6.07 hereof, but subject to the
Intercreditor Agreement, the right of any Certificateholder to receive
distributions of payments required pursuant to Section 4.02 hereof on the
Certificates when due, or to institute suit for the enforcement of any such
payment on or after the applicable Regular Distribution Date or Special
Distribution Date, shall not be impaired or affected without the consent of
such Certificateholder.
Section 6.07. Certificateholders May Not Bring Suit Except Under Certain
Conditions. A Certificateholder shall not have the right to institute any
suit, action or proceeding at law or in equity or otherwise with respect to
this Agreement, for the appointment of a receiver or for the enforcement of any
other remedy under this Agreement, unless:
(1) such Certificateholder previously shall have given written notice to
the Trustee of a continuing Event of Default;
60
52
(2) Certificateholders holding Certificates evidencing Fractional
Undivided Interests aggregating not less than 25% of the Trust shall have
requested the Trustee in writing to institute such action, suit or proceeding
and shall have offered to the Trustee indemnity as provided in Section
7.03(e);
(3) the Trustee shall have refused or neglected to institute such an
action, suit or proceeding for 60 days after receipt of such notice, request
and offer of indemnity; and
(4) no direction inconsistent with such written request shall have been
given to the Trustee during such 60-day period by Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less
than a majority in interest in the Trust.
It is understood and intended that no one or more of the
Certificateholders shall have any right in any manner whatsoever hereunder or
under the Certificates to (i) surrender, impair, waive, affect, disturb or
prejudice any property in the Trust Property or the lien of any Indenture on
any property subject thereto, or the rights of the Certificateholders or the
holders of the Equipment Notes, (ii) obtain or seek to obtain priority over or
preference with respect to any other such Certificateholder or (iii) enforce
any right under this Agreement, except in the manner herein provided and for
the equal, ratable and common benefit of all the Certificateholders subject to
the provisions of this Agreement.
Section 6.08. Remedies Cumulative. Every remedy given hereunder to the
Trustee or to any of the Certificateholders shall not be exclusive of any other
remedy or remedies, and every such remedy shall be cumulative and in addition
to every other remedy given hereunder or now or hereafter given by statute,
law, equity or otherwise.
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities. (a) Except during the
continuance of an Event of Default, the Trustee undertakes to perform such
duties as are specifically set
61
53
forth in this Agreement, and no implied covenants or obligations shall be read
into this Agreement against the Trustee.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of its
own affairs.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section; and
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts.
(d) Whether or not herein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 7.02. Notice of Defaults. As promptly as practicable after, and
in any event within 90 days after, the occurrence of any default (as such term
is defined below) hereunder, the Trustee shall transmit by mail to the Company,
the Owner Trustees, the Owner Participants, the Loan Trustees and the
Certificateholders in accordance with Section 313(c) of the Trust Indenture
Act, notice of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of
a default on the payment of the principal, premium, if any, or interest on any
Equipment Note held in the Trust, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee
or a trust committee of directors and/or Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interests of
the Certificateholders. For the purpose of this Section, the term "default"
means any event that is, or after notice or lapse of time or both would become,
an Event of Default.
62
54
Section 7.03. Certain Rights of Trustee. Subject to the provisions of
Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting in reliance upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a written description of the subject matter thereof
accompanied by an Officer's Certificate and an Opinion of Counsel as provided
in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officer's Certificate of the Company, any Owner Trustee or
any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Agreement at the Direction of any of the
Certificateholders pursuant to this Agreement, unless such Certificateholders
shall have offered to the Trustee reasonable security or indemnity against the
cost, expenses and liabilities which might be incurred by it in compliance with
such Direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document;
(g) the Trustee may execute any of the trusts or powers under this
Agreement or perform any duties under this
63
55
Agreement either directly or by or through agents or attorneys, and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the Direction of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds in
the performance of any of its duties under this Agreement, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
is not reasonably assured to it.
Section 7.04. Not Responsible for Recitals or Issuance of Certificates.
The recitals contained herein and in the Certificates, except the certificates
of authentication, shall not be taken as the statements of the Trustee, and the
Trustee assumes no responsibility for their correctness. Subject to Section
7.15, the Trustee makes no representations as to the validity or sufficiency of
this Agreement, any Equipment Notes, the Intercreditor Agreement, the Deposit
Agreement, the Escrow Agreement, the Certificates or any other Financing
Document, except that the Trustee hereby represents and warrants that this
Agreement has been, and the Intercreditor Agreement, the Registration Rights
Agreement, the Note Purchase Agreement, the Escrow Agreement and each
Certificate will be, executed, authenticated and delivered by one of its
officers who is duly authorized to execute, authenticate and deliver such
document on its behalf.
Section 7.05. May Hold Certificates. The Trustee, any Paying Agent,
Registrar or any of their Affiliates or any other agent in their respective
individual or any other capacity may become the owner or pledgee of
Certificates and, subject to Sections 310(b) and 311 of the Trust Indenture
Act, if applicable, may otherwise deal with the Company, the Owner
64
56
Trustees or the Loan Trustees with the same rights it would have if it were not
Trustee, Paying Agent, Registrar or such other agent.
Section 7.06. Money Held in Trust. Money held by the Trustee or the
Paying Agent in trust hereunder need not be segregated from other funds except
to the extent required herein or by law and neither the Trustee nor the Paying
Agent shall have any liability for interest upon any such moneys except as
provided for herein.
Section 7.07. Compensation and Reimbursement. The Company agrees:
(1) to pay, or cause to be paid, to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse, or cause
to be reimbursed, the Trustee upon its request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Agreement (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence, willful misconduct or bad faith or as may be
incurred due to the Trustee's breach of its representations and warranties
set forth in Section 7.15; and
(3) to indemnify, or cause to be indemnified, the Trustee for, and to hold
it harmless against, any loss, liability or expense (other than for or with
respect to any tax) incurred without negligence, willful misconduct or bad
faith, on its part, arising out of or in connection with the acceptance or
administration of this Trust, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except for any such
loss, liability or expense incurred by reason of the Trustee's breach of its
representations and warranties set forth in Section 7.15; provided, however,
that the foregoing paragraph (3) shall cease to have any further force or
65
57
effect upon the execution and delivery by the Trustee of any Participation
Agreement.
With respect to paragraph (3) above, the Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee
may have separate counsel with the consent of the Company and the Company will
pay the reasonable fees and expenses of such counsel. The Company need not pay
for any settlement made, in settlement or otherwise, without its consent.
The Trustee shall be entitled to reimbursement from, and shall have a lien
prior to the Certificates upon, the Trust Property for any tax incurred without
negligence, bad faith or willful misconduct, on its part, arising out of or in
connection with the acceptance or administration of such Trust (other than any
tax attributable to the Trustee's compensation for serving as such), including
any costs and expenses incurred in contesting the imposition of any such tax.
If the Trustee reimburses itself from the Trust Property of such Trust for any
such tax, it will mail a brief report within 30 days setting forth the
circumstances thereof to all Certificateholders as their names and addresses
appear in the Register.
Section 7.08. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee hereunder which shall be eligible to act as a trustee under
Section 310(a) of the Trust Indenture Act and shall have a combined capital and
surplus of at least $75,000,000 (or a combined capital and surplus in excess of
$5,000,000 and the obligations of which, whether now in existence or hereafter
incurred, are fully and unconditionally guaranteed by a corporation organized
and doing business under the laws of the United States, any state or territory
thereof or of the District of Columbia and having a combined capital and
surplus of at least $75,000,000). If such corporation publishes reports of
conditions at least annually, pursuant to law or to the requirements of
federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section 7.08, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of conditions so published.
66
58
In case at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 7.08 to act as Trustee, the Trustee shall
resign immediately as Trustee in the manner and with the effect specified in
Section 7.09.
Section 7.09. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 7.10.
(b) The Trustee may resign at any time as trustee by giving prior written
notice thereof to the Company, the Authorized Agents, the Owner Trustees and
the Loan Trustees. If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Company, the Authorized Agents, the Owner
Trustees, the Loan Trustees and the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Direction of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust
delivered to the Trustee and to the Company, the Owner Trustees and the Loan
Trustees.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310 of the Trust
Indenture Act, if applicable, after written request therefor by the Company
or by any Certificateholder who has been a bona fide Certificateholder for at
least six months; or
(2) the Trustee shall cease to be eligible under Section 7.08 and shall
fail to resign after written request therefor by the Company or by any such
Certificateholder; or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
67
59
then, in any case, (i) the Company may, with the consent of the Owner
Participants, which consent may not be unreasonably withheld, remove the
Trustee or (ii) any Certificateholder who has been a bona fide
Certificateholder for at least six months may, on behalf of itself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If a Responsible Officer of the Trustee shall obtain actual knowledge
of an Avoidable Tax which has been or is likely to be asserted, the Trustee
shall promptly notify the Company and shall, within 30 days of such
notification, resign hereunder unless within such 30-day period the Trustee
shall have received notice that the Company has agreed to pay such tax. The
Company shall promptly appoint a successor Trustee in a jurisdiction where
there are no Avoidable Taxes.
(f) If the Trustee shall resign, be removed or become incapable of acting
or if a vacancy shall occur in the office of the Trustee for any cause, the
Company shall promptly appoint a successor Trustee. If, within one year after
such resignation, removal or incapability, or other occurrence of such vacancy,
a successor Trustee shall be appointed by Direction of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust delivered to the Company, the
Owner Trustees, the Loan Trustees and the retiring Trustee, and the Company
approves such appointment, which approval shall not be unreasonably withheld,
then the successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment, become the successor Trustee and supersede the successor
Trustee appointed as provided above. If no successor Trustee shall have been
so appointed as provided above and accepted appointment in the manner
hereinafter provided, any Certificateholder who has been a bona fide
Certificateholder for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(g) The successor Trustee shall give notice of the resignation and removal
of the Trustee and appointment of the successor Trustee by mailing written
notice of such event by first-class mail, postage prepaid, to the
Certificateholders as their names and addresses appear in the Register. Each
notice
68
60
shall include the name of such successor Trustee and the address of its
Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute and deliver to the Company, the
Authorized Agents, the Owner Trustees and the Loan Trustees and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company or the successor Trustee, such retiring Trustee shall
execute and deliver an instrument transferring to such successor Trustee all
such rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all Trust Property held by such
retiring Trustee hereunder, subject nevertheless to its lien, if any, provided
for in Section 7.07. Upon request of any such successor Trustee, the Company,
the retiring Trustee and such successor Trustee shall execute and deliver any
and all instruments containing such provisions as shall be necessary or
desirable to transfer and confirm to, and for more fully and certainly vesting
in, such successor Trustee all such rights, powers and trusts.
No institution shall accept its appointment as a Trustee hereunder unless
at the time of such acceptance such institution shall be qualified and eligible
under this Article VII.
Section 7.11. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article VII, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Certificates shall have
been executed or authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such execution or authentication and deliver
the Certificates so
69
61
executed or authenticated with the same effect as if such successor Trustee had
itself executed or authenticated such Certificates.
Section 7.12. Maintenance of Agencies. (a) There shall at all times be
maintained an office or agency in the location set forth in Section 12.03 where
Certificates may be presented or surrendered for registration of transfer or
for exchange, and for payment thereof and where notices and demands to or upon
the Trustee in respect of such certificates or this Agreement may be served;
provided, however, that, if it shall be necessary that the Trustee maintain an
office or agency in another location (e.g., the Certificates shall be
represented by Definitive Certificates and shall be listed on a national
securities exchange), the Trustee will make all reasonable efforts to establish
such an office or agency. Written notice of the location of each such other
office or agency and of any change of location thereof shall be given by the
Trustee to the Company, the Owner Trustees, the Loan Trustees (in the case of
any Owner Trustee or Loan Trustee, at its address specified in the Financing
Documents or such other address as may be notified to the Trustee) and the
Certificateholders. In the event that no such office or agency shall be
maintained or no such notice of location or of change of location shall be
given, presentations and demands may be made and notices may be served at the
Corporate Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a Paying Agent hereunder
with respect to the Certificates. Each such Authorized Agent shall be a bank
or trust company, shall be a corporation organized and doing business under the
laws of the United States or any state, with a combined capital and surplus of
at least $75,000,000, or, if the Trustee shall be acting as the Registrar or
Paying Agent hereunder, a corporation having a combined capital and surplus in
excess of $5,000,000, the obligations of which are guaranteed by a corporation
organized and doing business under the laws of the United States or any state,
with a combined capital and surplus of at least $75,000,000, and shall be
authorized under such laws to exercise corporate trust powers, subject to
supervision by Federal or state authorities. The Trustee shall initially be
the Paying Agent and, as provided in Section 3.04, Registrar hereunder with
respect to the Certificates. Each Registrar shall furnish to the Trustee, at
stated intervals of not more than six months, and at
70
62
such other times as the Trustee may request in writing, a copy of the Register
maintained by such Registrar.
(c) Any corporation into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authorized Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authorized Agent, shall be the successor of such Authorized Agent
hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the parties hereto or such Authorized Agent or such successor
corporation.
(d) Any Authorized Agent may at any time resign by giving written notice
of resignation to the Trustee, the Company, the Owner Trustees and the Loan
Trustees. The Company may, and at the request of the Trustee shall, at any
time terminate the agency of any Authorized Agent by giving written notice of
termination to such Authorized Agent and to the Trustee. Upon the resignation
or termination of an Authorized Agent or in case at any time any such
Authorized Agent shall cease to be eligible under this Section (when, in either
case, no other Authorized Agent performing the functions of such Authorized
Agent shall have been appointed), the Company shall promptly appoint one or
more qualified successor Authorized Agents, reasonably satisfactory to the
Trustee, to perform the functions of the Authorized Agent which has resigned or
whose agency has been terminated or who shall have ceased to be eligible under
this Section. The Company shall give written notice of any such appointment
made by it to the Trustee, the Owner Trustees and the Loan Trustees; and in
each case the Trustee shall mail notice of such appointment to all
Certificateholders as their names and addresses appear on the Register.
(e) The Company agrees to pay, or cause to be paid, from time to time to
each Authorized Agent reasonable compensation for its services and to reimburse
it for its reasonable expenses.
Section 7.13. Money for Certificate Payments to Be Held in Trust. All
moneys deposited with any Paying Agent for the purpose of any payment on
Certificates shall be deposited and held in trust for the benefit of the
Certificateholders entitled to such payment, subject to the provisions of this
Section.
71
63
Moneys so deposited and held in trust shall constitute a separate trust fund
for the benefit of the Certificateholders with respect to which such money was
deposited.
The Trustee may at any time, for the purpose of obtaining the satisfaction
and discharge of this Agreement or for any other purpose, direct any Paying
Agent to pay to the Trustee all sums held in trust by such Paying Agent, such
sums to be held by the Trustee upon the same trusts as those upon which such
sums were held by such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Section 7.14. Registration of Equipment Notes in Name of Subordination
Agent. The Trustee agrees that all Equipment Notes to be purchased by the
Trust shall be issued in the name of the Subordination Agent or its nominee and
held by the Subordination Agent in trust for the benefit of the
Certificateholders, or, if not so held, the Subordination Agent or its nominee
shall be reflected as the owner of such Equipment Notes in the register of the
issuer of such Equipment Notes.
Section 7.15. Representations and Warranties of Trustee. The Trustee
hereby represents and warrants that:
(a) the Trustee is a Delaware banking corporation organized and validly
existing in good standing under the laws of the State of Delaware;
(b) the Trustee has full power, authority and legal right to execute,
deliver, and perform this Agreement, the Intercreditor Agreement, the
Registration Rights Agreement, the Escrow Agreement, the Note Purchase
Agreement and the Financing Documents to which it is a party and has taken all
necessary action to authorize the execution, delivery, and performance by it of
this Agreement, the Intercreditor Agreement, the Registration Rights Agreement,
the Escrow Agreement, the Note Purchase Agreement and the Financing Documents
to which it is a party;
(c) the execution, delivery and performance by the Trustee of this
Agreement, the Intercreditor Agreement, the Registration Rights Agreement, the
Escrow Agreement, the Note Purchase Agreement and the Financing Documents to
which it is a party (i) will not violate any provision of United States federal
law or the law of the state of the United States where it is
72
64
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, or (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;
(d) the execution, delivery and performance by the Trustee of this
Agreement, the Intercreditor Agreement, the Registration Rights Agreement, the
Escrow Agreement, the Note Purchase Agreement, and the Financing Documents to
which it is a party will not require the authorization, consent, or approval
of, the giving of notice to, the filing or registration with, or the taking of
any other action in respect of, any governmental authority or agency of the
United States or the state of the United States where it is located regulating
the banking and corporate trust activities of the Trustee; and
(e) this Agreement, the Intercreditor Agreement, the Registration Rights
Agreement, the Escrow Agreement, the Note Purchase Agreement, and the Financing
Documents to which it is a party have been duly executed and delivered by the
Trustee and constitute the legal, valid, and binding agreements of the Trustee,
enforceable against it in accordance with their respective terms, provided 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 7.16. Withholding Taxes, Information Reporting. The Trustee, as
trustee of the grantor trust created by this Agreement, shall exclude and
withhold from each distribution of principal, premium, if any, and interest and
other amounts due under this Agreement or under the Certificates any and all
withholding taxes applicable thereto as required by law. In addition, the
Trustee shall remit such amounts as would be required by section 1446 of the
Internal Revenue Code of 1986,
73
65
as amended, if the Trust were characterized as a partnership engaged in a U.S.
trade or business for U.S. federal income tax purposes and shall withhold such
amounts from amounts distributable to or for the benefit of Certificateholders
or Investors that are not United States persons within the meaning of section
7701(a)(30) of the Internal Revenue Code of 1986, as amended. In this regard,
the Trustee shall cause the appropriate withholding agent to withhold with
respect to such distributions in the manner contemplated by Section 10.04 of
Revenue Procedure 89-31 and Treasury Regulation 1.1445-8(b)(3)) by filing a
notice with the National Association of Securities Dealers, Inc. substantially
in the form of Exhibit E hereto on or before the date 10 days prior to the
Record Date. The Trustee shall mail such notice to the National Association of
Securities Dealers no later than the date than 15 days prior to the Record
Date. Investors that are not United States Persons agree to furnish a United
States taxpayer identification number ("TIN") to the Trustee and the Trustee
shall provide such TINs to the appropriate withholding agent. The Trustee
agrees to act as such withholding agent (except to the extent contemplated
above with respect to withholding amounts as if the Trust were characterized as
a partnership engaged in a U.S. trade or business for U.S. federal income tax
purposes) 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 Certificates, to withhold such amounts and timely pay the
same to the appropriate authority in the name of and on behalf of the
Certificateholders, 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 Certificateholder appropriate
documentation showing the payment thereof, together with such additional
documentary evidence as such Certificateholders may reasonably request from
time to time. The Trustee agrees to file any other information reports as it
may be required to file under United States law. Each Certificateholder or
Investor that is not a United States person within the meaning of section
7701(a)(30) of the Internal Revenue Code, as amended, by its acceptance of a
Certificate or a beneficial interest therein, agrees to indemnify and hold
harmless the Trust and the Trustee from and against any improper failure to
withhold taxes from amounts payable to it or for its benefit, other than an
improper failure attributable to the gross negligence or willful misconduct of
the Trustee.
74
66
Section 7.17. Trustee's Liens. The Trustee in its individual capacity
agrees 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 mortgage, pledge, lien,
charge, encumbrance, security interest or claim ("Trustee's Liens") on or with
respect to the Trust Property which is attributable to the Trustee either (i)
in its individual capacity and which is unrelated to the transactions
contemplated by this Agreement, the Intercreditor Agreement, the Note Purchase
Agreement or the Financing Documents, or (ii) as Trustee hereunder or in its
individual capacity and which arises out of acts or omissions which are not
contemplated by this Agreement.
Section 7.18. Preferential Collection of Claims. The Trustee shall comply
with Section 311(a) of the Trust Indenture Act, excluding any creditor
relationship listed in Section 311(b) of the Trust Indenture Act. If the
Trustee shall resign or be removed as Trustee, it shall be subject to Section
311(a) of the Trust Indenture Act to the extent provided therein.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and Addresses of
Certificateholders. The Company will furnish to the Trustee within 15 days
after each Record Date with respect to a Scheduled Payment, and at such other
times as the Trustee may request in writing within 30 days after receipt by the
Company of any such request, a list, in such form as the Trustee may reasonably
require, of all information in the possession or control of the Company as to
the names and addresses of the Certificateholders, in each case as of a date
not more than 15 days prior to the time such list is furnished; provided,
however, that so long as the Trustee is the sole Registrar, no such list need
be furnished; and provided further, however, that no such list need be
furnished for so long as a copy of the Register is being furnished to the
Trustee pursuant to Section 7.12.
Section 8.02. Preservation of Information; Communications to
Certificateholders. The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Certificateholders contained
in the most recent list furnished to the Trustee as provided in Section 7.12
75
67
or Section 8.01, as the case may be, and the names and addresses of
Certificateholders received by the Trustee in its capacity as Registrar, if so
acting. The Trustee may destroy any list furnished to it as provided in
Section 7.12 or Section 8.01, as the case may be, upon receipt of a new list so
furnished.
Section 8.03. Reports by Trustee. Within 60 days after May 15 of each
year commencing with the first full year following the issuance of the
Certificates, the Trustee shall transmit to the Certificateholders, as provided
in Section 313(c) of the Trust Indenture Act, a brief report dated as of such
May 15, if required by Section 313(a) of the Trust Indenture Act.
Section 8.04. Reports by the Company. The Company shall:
(a) file with the Trustee, within 30 days after the Company is required to
file the same with the SEC, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may from time to time by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934, as amended;
or, if the Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and the SEC,
in accordance with rules and regulations prescribed by the SEC, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed in such rules and regulations;
(b) during any period, prior to the consummation of the Exchange Offer and
during which the Shelf Registration Statement is not in effect, in which the
Company is not subject to Section 13(a), 13(c) or 15(d) under the Securities
Exchange Act of 1934, make available to any Holder of the Certificates in
connection with any sale thereof and any prospective purchaser of the
Certificates from such Holder, in each case upon request, the information
specified in, and meeting the requirements of, Rule 144A(d)(4) under the
Securities Act but only for so long as any of the Certificates remain
outstanding and are "restricted securities" within the meaning of Rule
144(a)(3) under the
76
68
Securities Act and, in any event, only until the second anniversary of the
Issuance Date;
(c) file with the Trustee and the SEC, in accordance with the rules and
regulations prescribed by the SEC, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Agreement, as may be required by such rules and
regulations, including, in the case of annual reports, if required by such
rules and regulations, certificates or opinions of independent public
accountants, conforming to the requirements of Section 1.02;
(d) transmit to all Certificateholders, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act such summaries of any
information, documents and reports required to be filed by the Company pursuant
to subsections (a) and (c) of this Section 8.04 as may be required by rules and
regulations prescribed by the SEC; and
(e) furnish to the Trustee, not less often than annually, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Agreement (it being
understood that for purposes of this paragraph (e), such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Agreement).
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of
Certificateholders. Without the consent of the Certificateholders, the Company
may (but will not be required to), and the Trustee (subject to Section 9.03)
shall, at the Company's request, at any time and from time to time, enter into
one or more agreements supplemental hereto or, if applicable, to the
Intercreditor Agreement, the Escrow Agreement, the Note Purchase Agreement, the
Deposit Agreement, the Registration Rights Agreement or any Liquidity Facility
in form satisfactory to the Trustee, for any of the following purposes:
77
69
(1) to evidence the succession of another corporation to the Company and
the assumption by any such successor of the covenants of the Company herein
contained or of the Company's obligations under the Note Purchase Agreement,
the Registration Rights Agreement or any Liquidity Facility; or
(2) to add to the covenants of the Company for the benefit of the
Certificateholders, or to surrender any right or power conferred upon the
Company in this Agreement, the Note Purchase Agreement, the Registration
Rights Agreement or any Liquidity Facility; or
(3) to correct or supplement any provision in this Agreement, the
Intercreditor Agreement, the Escrow Agreement, the Deposit Agreement, the
Note Purchase Agreement, the Registration Rights Agreement or any Liquidity
Facility which may be defective or inconsistent with any other provision
herein or therein 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, the Escrow Agreement, the Deposit Agreement, the Note
Purchase Agreement, the Intercreditor Agreement, the Registration Rights
Agreement or any Liquidity Facility, provided that any such action shall not
materially adversely affect the interests of the Certificateholders; or
(4) to comply with any requirement of the SEC, any applicable law, rules
or regulations of any exchange or quotation system on which the Certificates
are listed, any regulatory body or the Registration Rights Agreement to
effectuate the Exchange Offer; or
(5) to modify, eliminate or add to the provisions of this Agreement to
such extent as shall be necessary to continue the qualification of this
Agreement (including any supplemental agreement) under the Trust Indenture
Act or under any similar Federal statute hereafter enacted, and to add to
this Agreement such other provisions as may be expressly permitted by the
Trust Indenture Act, excluding, however, the provisions referred to in
Section 316(a)(2) of the Trust Indenture Act as in effect at the date as of
which this instrument was executed or any corresponding provision in any
similar Federal statute hereafter enacted; or
78
70
(6) to evidence and provide for the acceptance of appointment under this
Agreement by the Trustee of a successor Trustee and to add to or change any
of the provisions of this Agreement as shall be necessary to provide for or
facilitate the administration of the Trust, pursuant to the requirements of
Section 7.10; or
(7) to provide the information required under Section 7.12 and Section
12.03 as to the Trustee; or
(8) to modify or eliminate provisions relating to the transfer or exchange
of Exchange Certificates or the Initial Certificates upon consummation of the
Exchange Offer (as defined in the Registration Rights Agreement) or
effectiveness of the Shelf Registration Statement or the Exchange Offer
Registration Statement;
provided, however, that no such supplemental agreement shall adversely affect
the status of any Trust as a grantor trust under Subpart E, Part I of
Subchapter J of Chapter 1 of Subtitle A of the Internal Revenue Code of 1986,
as amended, for U.S. federal income tax purposes.
Section 9.02. Supplemental Agreements with Consent of Certificateholders.
With the consent of the Certificateholders holding Certificates (including
consents obtained in connection with a tender offer or exchange offer for the
Certificates) evidencing Fractional Undivided Interests aggregating not less
than a majority in interest in the Trust, by Direction of said
Certificateholders delivered to the Company and the Trustee, the Company may
(with the consent of the Owner Trustees, if any, which consent shall not be
unreasonably withheld), and the Trustee (subject to Section 9.03) shall, enter
into an agreement or agreements for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement,
the Intercreditor Agreement, any Liquidity Facility, the Registration Rights
Agreement, the Escrow Agreement, the Deposit Agreement or the Note Purchase
Agreement to the extent applicable to such Certificateholders or of modifying
in any manner the rights and obligations of such Certificateholders under this
Agreement, the Intercreditor Agreement, any Liquidity Facility, the
Registration Rights Agreement, the Escrow Agreement, the Deposit Agreement or
the Note Purchase Agreement to the extent applicable to such Certificateholders
or of modifying in any manner the rights and
79
71
obligations of such Certificateholders under this Agreement, the Intercreditor
Agreement, any Liquidity Facility, the Registration Rights Agreement, the
Escrow Agreement, the Deposit Agreement or the Note Purchase Agreement;
provided, however, that no such agreement shall, without the consent of the
Certificateholder of each Outstanding Certificate affected thereby:
(1) reduce in any manner the amount of, or delay the timing of, any
receipt by the Trustee (or, with respect to the Deposits, the
Certificateholders) of payments on the Equipment Notes held in the Trust or
on the Deposits or distributions that are required to be made herein on any
Certificate, or change any date of payment on any Certificate, or change the
place of payment where, or the coin or currency in which, any Certificate is
payable, or impair the right to institute suit for the enforcement of any
such payment or distribution on or after the Regular Distribution Date or
Special Distribution Date applicable thereto; or
(2) permit the disposition of any Equipment Note included in the Trust
Property except as permitted by this Agreement, or otherwise deprive such
Certificateholder of the benefit of the ownership of the Equipment Notes in
the Trust; or
(3) reduce the specified percentage of the aggregate Fractional Undivided
Interests of the Trust which is required for any such supplemental agreement,
or reduce such specified percentage required for any waiver of compliance
with certain provisions of this Agreement or certain defaults hereunder and
their consequences provided for in this Agreement; or
(4) waive, amend or modify Section 2.4, 3.2 or 3.3 of the Intercreditor
Agreement in a manner adverse to the Certificateholders; or
(5) modify any of the provisions of this Section 9.02 or Section 6.05,
except to increase any such percentage or to provide that certain other
provisions of this Agreement cannot be modified or waived without the consent
of the Certificateholder of each Certificate affected thereby; or
(6) adversely affect the status of any Trust as a grantor trust under
Subpart E, Part I of Subchapter J of
80
72
Chapter 1 of Subtitle A of the Internal Revenue Code of 1986, as amended,
for U.S. federal income tax purposes.
It shall not be necessary for any Direction of Certificateholders under
this Section to approve the particular form of any proposed supplemental
agreement, but it shall be sufficient if such Direction shall approve the
substance thereof.
Section 9.03. Documents Affecting Immunity or Indemnity. If in the
opinion of the Trustee any document required to be executed by it pursuant to
the terms of Section 9.01 or 9.02 affects any interest, right, duty, immunity
or indemnity in favor of the Trustee under this Agreement, the Trustee may in
its discretion decline to execute such document.
Section 9.04. Execution of Supplemental Agreements. In executing, or
accepting the additional trusts created by, any agreement permitted by this
Article or the modifications thereby of the trusts created by this Agreement,
the Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental agreement is authorized or permitted by this Agreement.
Section 9.05. Effect of Supplemental Agreements. Upon the execution of
any agreement supplemental to this Agreement under this Article, this Agreement
shall be modified in accordance therewith, and such supplemental agreement
shall form a part of this Agreement for all purposes; and every Holder of a
Certificate theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.06. Conformity with Trust Indenture Act. Every supplemental
agreement executed pursuant to this Article shall conform to the requirements
of the Trust Indenture Act as then in effect.
Section 9.07. Reference in Certificates to Supplemental Agreements.
Certificates authenticated and delivered after the execution of any
supplemental agreement pursuant to this Article may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
agreement; and, in such case, suitable notation may be made upon Outstanding
Certificates after proper presentation and demand.
81
73
ARTICLE X
AMENDMENTS TO INDENTURES AND FINANCING DOCUMENTS
Section 10.01. Amendments and Supplements to Indentures and Financing
Documents. In the event that the Trustee, as holder (or beneficial owner
through the Subordination Agent) of any Equipment Note in trust for the benefit
of the Certificateholders or as Controlling Party under the Intercreditor
Agreement, receives (directly or indirectly through the Subordination Agent) a
request for a consent to any amendment, modification, waiver or supplement
under any Indenture, any other Financing Document, any Equipment Note or any
other related document, the Trustee shall forthwith send a notice of such
proposed amendment, modification, waiver or supplement to each
Certificateholder registered on the Register as of the date of such notice.
The Trustee shall request from the Certificateholders a Direction as to (a)
whether or not to take or refrain from taking (or direct the Subordination
Agent to take or refrain from taking) any action which a holder of such
Equipment Note has the option to direct, (b) whether or not to give or execute
(or direct the Subordination Agent to give or execute) any waivers, consents,
amendments, modifications or supplements as a holder of such Equipment Note or
a Controlling Party and (c) how to vote (or direct the Subordination Agent to
vote) any Equipment Note if a vote has been called for with respect thereto.
Provided such a request for Certificateholder Direction shall have been made,
in directing any action or casting any vote or giving any consent as the holder
of any Equipment Note (or in directing the Subordination Agent in any of the
foregoing), (i) other than as Controlling Party, the Trustee shall vote for or
give consent to any such action with respect to such Equipment Note in the same
proportion as that of (A) the aggregate face amounts of all Certificates
actually voted in favor of or for giving consent to such action by such
Direction of Certificateholders to (B) the aggregate face amount of all
Outstanding Certificates and (ii) as Controlling Party, the Trustee shall vote
as directed in such Certificateholder Direction by the Certificateholders
evidencing a Fractional Undivided Interest aggregating not less than a majority
in interest in the Trust. For purposes of the immediately preceding sentence,
a Certificate shall have been "actually voted" if the Holder of such
Certificate has delivered to the Trustee an instrument evidencing such Holder's
consent to such Direction prior to two Business Days before the Trustee directs
such action
82
74
or casts such vote or gives such consent. Notwithstanding the foregoing, but
subject to Section 6.04 and the Intercreditor Agreement, the Trustee may, in
its own discretion and at its own direction, consent and notify the relevant
Loan Trustee of such consent (or direct the Subordination Agent to consent and
notify the Loan Trustee of such consent) to any amendment, modification, waiver
or supplement under the relevant Indenture, any other Financing Document, any
Equipment Note or any other related document, if an Event of Default hereunder
shall have occurred and be continuing, or if such amendment, modification,
waiver or supplement will not materially adversely affect the interests of the
Certificateholders.
ARTICLE XI
TERMINATION OF TRUST
Section 11.01. Termination of the Trust. The respective obligations and
responsibilities of the Company and the Trustee with respect to the 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 Holders of Certificates and the Trustee
of all amounts required to be distributed to them pursuant to this Agreement
and the disposition of all property held as part of the Trust Property;
provided, however, that in no event shall the Trust continue beyond one hundred
ten (110) years following the date of the earliest execution of this Trust
Agreement.
Upon the earlier of (i) the first Business Day following March 31, 1998,
or, if later, the fifth Business Day following the Delivery Period Termination
Date and (ii) the fifth Business Day following the date on which a Triggering
Event occurs (such date, the "Transfer Date"), or, if later the date on which
all of the conditions set forth in the immediately following sentence have been
satisfied, the Trustee is hereby directed (subject only to the immediately
following sentence) to, and the Company shall direct the institution that will
serve as the Related Trustee under the Related Pass Through Trust Agreement to,
execute and deliver the Assignment and Assumption Agreement, pursuant to which
the Trustee shall assign, transfer and deliver all of the Trustee's right,
title and interest to the Trust Property to the Related Trustee under the
Related Pass Through Trust Agreement. The Trustee and the Related Trustee
83
75
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 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, 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):
(a) upon the execution and delivery thereof by the
parties thereto in accordance with the terms of this 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;
(b) upon the execution and delivery of the Assignment
and Assumption Agreement in accordance with the terms of this
Agreement and the Related Pass Through Trust Agreement, each
of the Certificates then Outstanding will be entitled to the
benefits of the Related Pass Through Trust Agreement;
(c) the Related Trust is not required to be
registered as an investment company under the Investment
Company Act of 1940, as amended;
(d) 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
(e) neither the execution and delivery of the
Assignment and Assumption Agreement in accordance with the
terms of this 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
84
76
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 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, and the
Outstanding Certificates representing Fractional Undivided Interests in the
Trust shall be deemed for all purposes of this Agreement and the Related Pass
Through Trust Agreement, without further signature or action of any party or
Certificateholder, to be certificates representing the same fractional
undivided interests in the Related Trust and its trust property. By acceptance
of its Certificate, each 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 Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and cancellation, shall be mailed promptly by
the Trustee to Certificateholders not earlier than the 60th day and not later
than the 20th day next preceding such final Distribution Date specifying (A)
the Distribution Date upon which the proposed final payment of the Certificates
will be made upon presentation and surrender of 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 Certificates at the office or agency of the Trustee
therein specified. The Trustee shall give such notice to the Xxxxxxxxx
00
77
at the time such notice is given to Certificateholders. Upon presentation and
surrender of the Certificates in accordance with such notice, the Trustee shall
cause to be distributed to Certificateholders such final payments.
In the event that all of the Certificateholders shall not surrender their
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 Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. No
additional interest shall accrue on the 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 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 related Owner Trustees, the Owner Participants
and the Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations, and liabilities of the
parties hereto or any of them.
Section 12.02. Certificates Nonassessable and Fully Paid. Except as set
forth in the last sentence of this Section 12.02, Certificateholders shall not
be personally liable for obligations of the Trust, the Fractional Undivided
Interests represented by the Certificates shall be nonassessable for any losses
or expenses of the Trust or for any reason whatsoever, and Certificates, upon
authentication thereof by the Trustee pursuant
86
78
to Section 3.03, are and shall be deemed fully paid. No Certificateholder
shall have any right (except as expressly provided herein) to vote or in any
manner otherwise control the operation and management of the Trust Property,
the Trust, or the obligations of the parties hereto, nor shall anything set
forth herein, or contained in the terms of the Certificates, be construed so as
to constitute the Certificateholders from time to time as partners or members
of an association. Neither the existence of the Trust nor any provision herein
is intended to or shall limit the liability the Certificateholders would
otherwise incur if the Certificateholders owned Trust Property as co-owners, or
incurred any obligations of the Trust, directly rather than through the Trust.
Section 12.03. Notices. (a) Unless otherwise specifically provided
herein, all notices required under the terms and provisions of this Agreement
shall be in English and in writing, and any such notice may be given by United
States mail, courier service or telecopy, and any such notice shall be
effective when delivered or received or, if mailed, three days after deposit in
the United States mail with proper postage for ordinary mail prepaid,
if to the Company, to:
Continental Airlines, Inc.
0000 Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Chief Financial Officer and
General Counsel
Facsimile: (000) 000-0000
if to the Trustee, to:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Department
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
87
79
(b) The Company or the Trustee, by notice to the other, may designate
additional or different addresses for subsequent notices or communications.
(c) Any notice or communication to Certificateholders shall be mailed by
first-class mail to the addresses for Certificateholders shown on the Register
kept by the Registrar. Failure so to mail a notice or communication or any
defect in such notice or communication shall not affect its sufficiency with
respect to other Certificateholders.
(d) If a notice or communication is mailed in the manner provided above
within the time prescribed, it is conclusively presumed to have been duly
given, whether or not the addressee receives it.
(e) If the Company mails a notice or communication to the
Certificateholders, it shall mail a copy to the Trustee and to the Paying Agent
at the same time.
(f) Notwithstanding the foregoing, all communications or notices to the
Trustee shall be deemed to be given only when received by a Responsible Officer
of the Trustee.
(g) The Trustee shall promptly furnish the Company with a copy of any
demand, notice or written communication received by the Trustee hereunder from
any Certificateholder, Owner Trustee or Loan Trustee.
Section 12.04. Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN THE
STATE OF DELAWARE AND THIS AGREEMENT AND THE CERTIFICATES 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.
Section 12.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions, or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or the Trust, or of
the Certificates or the rights of the Certificateholders thereof.
88
80
Section 12.06. Trust Indenture Act Controls. Upon the occurrence of any
Registration Event, this Agreement shall become subject to the provisions of
the Trust Indenture Act and shall, to the extent applicable, be governed by
such provisions. From and after any Registration Event, if any provision of
this Agreement limits, qualifies or conflicts with another provision which is
required to be included in this Agreement by the Trust Indenture Act, the
required provision shall control.
Section 12.07. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 12.08. Successors and Assigns. All covenants, agreements,
representations and warranties in this Agreement by the Trustee and the Company
shall bind and, to the extent permitted hereby, shall inure to the benefit of
and be enforceable by their respective successors and assigns, whether so
expressed or not.
Section 12.09. Benefits of Agreement. Nothing in this Agreement or in the
Certificates, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the Certificateholders, any
benefit or any legal or equitable right, remedy or claim under this Agreement.
Section 12.10. Legal Holidays. In any case where any Regular Distribution
Date or Special Distribution Date relating to any Certificate shall not be a
Business Day, then (notwithstanding any other provision of this Agreement)
payment need not be made on such date, but may be made on the next succeeding
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.
Section 12.11. Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
Section 12.12. Intention of Parties. The parties hereto intend that the
Trust be classified for U.S. federal income tax purposes as a grantor trust
under Subpart E, Part I of
89
81
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
Certificateholder and Investor, by its acceptance of its Certificate or a
beneficial interest therein, agrees to treat the Trust as a grantor trust for
all U.S. federal, state and local income tax purposes. The powers granted and
obligations undertaken pursuant to this Agreement shall be so construed so as
to further such intent.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers thereunto 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:
90
EXHIBIT A
FORM OF CERTIFICATE
REGISTERED
No._________
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY PERSONS EXCEPT AS SET
FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT
IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (c) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS CERTIFICATE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT; (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUANCE OF THIS CERTIFICATE OR THE LAST DATE ON
WHICH THIS CERTIFICATE WAS HELD BY CONTINENTAL AIRLINES, INC., THE
TRUSTEE OR ANY AFFILIATE OF ANY OF SUCH PERSONS RESELL OR
OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT (A) CONTINENTAL
AIRLINES, INC., (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (c) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE) OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT; AND (3) AGREES THAT IF IT
SHOULD RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE IT WILL
DELIVER TO EACH PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS CERTIFICATE WITHIN TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUANCE OF THIS CERTIFICATE OR THE LAST
DATE ON WHICH
A-1
91
THIS CERTIFICATE WAS HELD BY CONTINENTAL AIRLINES, INC., THE
TRUSTEE OR ANY AFFILIATE OF ANY OF SUCH PERSONS, THE HOLDER MUST
CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING
TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION",
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT. THE PASS THROUGH TRUST
AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE
FOREGOING RESTRICTIONS.](1)
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN
EXCHANGE FOR THIS CERTIFICATE 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 HEREON 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 AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS
3.05 AND 3.06 OF THE PASS THROUGH TRUST AGREEMENT REFERRED TO
HEREIN.](2)
---------
(1) Not to be included on the face of the Regulation S Global Certificate.
(2) To be included on the face of each Global Certificate.
A-2
92
[GLOBAL CERTIFICATE](3)
CONTINENTAL AIRLINES PASS THROUGH TRUST, SERIES 1997-1A-O
____% Continental Airlines [Initial] [Exchange]
Pass Through Certificate,
Series 1997-1A-O
Final Maturity Date: October 1, 2016
evidencing a fractional undivided interest in a trust, the property of which
includes certain equipment notes each secured by an Aircraft leased to or owned
by Continental Airlines, Inc.
$__________ Fractional Undivided Interest representing .______% 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, Series 1997-1A-O (the "Trust") created
pursuant to a Pass Through Trust Agreement, dated as of March 21, 1997 (the
"Agreement"), between Wilmington Trust Company (the "Trustee") and Continental
Airlines, Inc., a corporation incorporated under Delaware law (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 "7.461% Continental Airlines
[Initial] [Exchange] Pass Through Certificates, Series 1997-1A-O" (herein
called the "Certificates"). This Certificate is issued under and is subject to
the terms, provisions, and conditions of the Agreement. By virtue of its
acceptance hereof the Certificateholder of this Certificate assents to and
agrees to be bound by the provisions of the Agreement and the Intercreditor
Agreement. The property of the Trust includes an interest in certain Equipment
Notes and all rights of the Trust to receive payments under the Intercreditor
Agreement and any Liquidity Facility (the "Trust Property"). Each issue of the
Equipment Notes is secured by, among other things, a security interest in the
Aircraft leased to or owned by the Company.
---------
(3) To be included on the face of each Global Certificate.
A-3
93
The Certificates represent fractional undivided interests in the Trust and
the Trust Property, and have no rights, benefits or interest in respect of any
assets or property other than the Trust Property.
Subject to and in accordance with the terms of the Agreement and the
Intercreditor Agreement, from and to the extent of funds then available to the
Trustee, there will be distributed on each April 1 and October 1 (a "Regular
Distribution Date"), commencing on October 1, 1997, 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 due on such Regular Distribution Date on the Equipment Notes, the
receipt of which has been confirmed by the Trustee, equal to the product of the
percentage interest in the Trust evidenced by this Certificate and an amount
equal to the sum of such Scheduled Payments. Subject to and in accordance with
the terms of the Agreement and the Intercreditor Agreement, in the event that
Special Payments on the Equipment Notes are received by the Trustee, from funds
then available to the Trustee, there shall be distributed on the applicable
Special Distribution Date, to the Person in whose name this Certificate is
registered at the close of business on the 15th day preceding the Special
Distribution Date, an amount in respect of such Special Payments on the
Equipment Notes, the receipt of which has been confirmed by the Trustee, equal
to the product of the percentage interest in the Trust evidenced by this
Certificate and an amount equal to the sum of such Special Payments so
received. If a Regular Distribution Date or Special Distribution Date is not a
Business Day, distribution shall be made on the immediately following Business
Day with the same force and effect as if made on such Regular Distribution Date
or Special Distribution Date and 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.
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 of their
affiliates. The Certificates are limited in right or 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
A-4
94
proceeds from the Trust Property to make such payments in accordance with the
terms of the Agreement. Each Certificate-holder 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,
proceeds, 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 therein
set forth, 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, in the Borough of Manhattan, the City of New York, 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.
A-5
95
[The Holder of this Certificate is entitled to the benefits of the
Exchange and Registration Rights Agreement, dated as of March 21, 1997, among
the Company, the Trustee and the Initial Purchasers named therein (the
"Registration Rights Agreement"). In the event that no Registration Event has
occurred on or prior to the 210th day after the date of the issuance of the
Certificates, the interest rate per annum payable in respect of the Equipment
Notes and the Deposits shall be increased by 0.50%, from and including the
210th day after the Issuance Date to but excluding the earlier of (i) the date
on which a Registration Event occurs and (ii) the date on which there cease to
be any Registrable Certificates (as defined in the Registration Rights
Agreement). In the event that the Shelf Registration Statement ceases to be
effective at any time during the period specified by Section 2(b)(B) of the
Registration Rights Agreement for more than 60 days, whether or not
consecutive, during any 12-month period, the interest rate per annum payable in
respect of the Equipment Notes and the Deposits shall be increased by 0.50%
from the 61st day of the applicable 12-month period such Shelf Registration
Statement ceases to be effective until such time as the Shelf Registration
Statement again becomes effective ( or, if earlier, the end of the period
specified by Section 2(b)(B) of the Registration Rights Agreement).](4)
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.
Under certain circumstances set forth in Section 11.01 of the Agreement,
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
---------
(4) To be included only on each Initial Certificate.
A-6
96
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 [$100,000](5) [$1,000](6) Fractional
Undivided Interest and integral multiples of $1,000 in excess thereof except
that one Certificate may be 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 by the Holder of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
Each Certificateholder or Investor that is not a United States person
within the meaning of section 7701(a)(30) of the Internal Revenue Code, as
amended, by its acceptance of a Certificate or a beneficial interest therein,
agrees to indemnify and hold harmless the Trust and the Trustee from and
against any improper failure to withhold taxes from amounts payable to it or
for its benefit. 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.
---------
(5) To be included only on each Initial Certificate.
(6) To be included only on each Initial Certificate.
A-7
97
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.
UNTIL THE TRANSFER, THE AGREEMENT AND 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. FROM AND AFTER THE TRANSFER, THE AGREEMENT AND
THIS CERTIFICATE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Unless the certificate of authentication hereon has been executed by the
Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
A-8
98
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: _______________, 1997 CONTINENTAL AIRLINES PASS THROUGH TRUST,
SERIES 1997-1A-O
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but
solely as Trustee
By:
----------------------------------
Name:
Title:
[Attest:
---------------------------------
Authorized Signature]
A-9
99
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates referred
to in the within-mentioned Agreement.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Trustee
By:
----------------------------------
Authorized Officer
A-10
100
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
please print or typewrite name and address including zip code of assignee
the within Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
attorney to transfer said Certificate on the books of the Trustee with full
power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES
EXCEPT REGULATION S GLOBAL AND
REGULATION S DEFINITIVE CERTIFICATES]
In connection with any transfer of this Certificate occurring prior to the
date that is the earlier of the date of an effective Registration Statement or
the date two years after the later of the original issuance of this Certificate
or the last date on which this Certificate was held by Continental Airlines,
Inc., the Trustee or any affiliate of such Persons, the undersigned confirms
that without utilizing any general solicitation or general advertising that:
[Check One]
[ ] (a) this Certificate is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended, provided by
Rule 144A thereunder.
or
[ ] (b) this Certificate is being transferred other than in accordance with
(a) above and documents are being furnished that
A-11
101
comply with the conditions of transfer set forth in this Certificate and the
Agreement.
If neither of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Certificate in the name of any Person
other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 3.06 of the Agreement
shall have been satisfied.
Date: __________________ [Name of Transferor]
NOTE: The signature must correspond with
the name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
Signature Guarantee: ______________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Certificate for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, as amended, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
Dated:
------------------ -------------------------------------
NOTE: To be executed by an executive
officer.
A-12
102
EXHIBIT B
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS OF CERTIFICATES PURSUANT TO REGULATION S
[date]
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Trustee Administration
Re: Continental Airlines Pass Through Trust (the "Trust"), Series
1997-1A-O, Continental Airlines Pass Through Certificates, Series
1997-1A-O (the "Certificates")
Sirs:
In connection with our proposed sale of $_____ Fractional Undivided
Interest of the Certificates, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended, and, accordingly, we represent that:
(1) the offer of the Certificates was not made to a person in the
United States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
B-1
103
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are applicable
thereto, we confirm that such sale has been made in accordance with the
applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case may be.
You and Continental Airlines, Inc. are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
B-2
104
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN
CONNECTION WITH TRANSFERS OF CERTIFICATES TO
NON-QIB INSTITUTIONAL ACCREDITED INVESTORS
________________, ____
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Trustee Administration
Continental Airlines, Inc.
0000 Xxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
CONTINENTAL AIRLINES
PASS THROUGH TRUST, SERIES 1997-1A-O (the "Trust")
Pass Through Certificates, Series 1997-1A-O
(the "Certificates")
Ladies and Gentlemen:
In connection with our proposed purchase of U.S. $[_____________]
Fractional Undivided Interest of Certificates, we confirm that:
1. We understand that any subsequent transfer of the Certificates is
subject to certain restrictions and conditions set forth in the Trust
Agreement, dated as of March 21, 1997, between Continental Airlines, Inc. (the
"Company") and Wilmington Trust Company (the "Trustee") relating to the
Certificates, and we agree to be bound by, and not to resell, pledge or
otherwise transfer the Certificates except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended (the
"Securities Act").
2. We are purchasing Certificates having an aggregate principal amount of
not less than $100,000 and each account (if any) for which we are purchasing
Certificates is purchasing
C-1
105
Certificates having an aggregate principal amount of not less than $100,000.
3. We understand that the Certificates have not been registered under the
Securities Act, that the Certificates are being sold to us in a transaction
that is exempt from the registration requirements of the Securities Act and
that the Certificates may not be offered or resold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that, if we should sell any
Certificates within two years after the later of the original issuance of such
Certificate and the last date on which such Certificate is owned by the
Company, the Trustee or any affiliate of any of such persons, we will do so
only (A) to the Company, (B) in accordance with Rule 144A under the Securities
Act to a "qualified institutional buyer" (as defined therein), (c) outside the
United States in accordance with Rule 904 of Regulation S under the Securities
Act, (D) pursuant to the exemption from registration provided by Rule 144 under
the Securities Act or (E) pursuant to an effective registration statement under
the Securities Act, and we further agree to provide to any person purchasing
any of the Certificates from us a notice advising such purchaser that resales
of the Certificates are restricted as stated herein.
4. We understand that, on any proposed resale of any Certificates, we will
be required to furnish to the Company and the Trustee such certifications,
legal opinions and other information as the Company and the Trustee may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Certificates purchased
by us will bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the
Certificates, and we and any accounts for which we are acting are each able to
bear the economic risk of our or their investments.
6. We are acquiring the Certificates purchased by us for our own account
or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion and not
with a view to any
C-2
106
distribution of the Certificates, subject, nevertheless to the understanding
that the disposition of our property shall at all times be and remain within
our control.
You are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy thereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:
----------------------------------
Name:
Title:
C-3
107
EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
Continental Airlines Pass Through Trust, Series 1997-[1_]
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated ____________, 199_ (the
"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 March
21, 1997 (as amended, modified or otherwise supplemented from time to time, the
"Pass Through Trust Agreement") in respect of the Continental Airlines Pass
Through Trust, Series 1997-1_-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 Pass Through Trust
Agreement dated as of March 21, 1997 (the "New Pass Through Trust Agreement")
in respect of the Continental Airlines Pass Through Trust, Series 1997-1_-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 Certificates issued under the Pass Through Trust 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 Pass Through Trust 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
D-1
108
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 Certificates and hereby confirms that the
Certificates representing Fractional Undivided Interests under the Pass Through
Trust Agreement shall be deemed for all purposes of the Pass Through Trust
Agreement and the New Pass Through Trust Agreement to be certificates
representing the same fractional undivided interests under the New Pass Through
Trust Agreement equal to their respective beneficial interests in the trust
created under the Pass Through Trust Agreement.
3. Effectiveness. This Agreement shall be effective upon the execution
and delivery hereof by the parties hereto, and each Certificateholder, by its
acceptance of its Certificate or a beneficial interest therein, agrees to be
bound by the terms of this 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
D-2
109
instruments and documents and take such further action as the Assignee may
reasonably request to obtain the full benefits of this Agreement and of the
right and powers herein granted. The Assignor agrees to deliver the Global
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 New Pass Through Trust
Agreement 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
Agreement;
(ii) the execution and delivery by it of this 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 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.
D-3
110
7. GOVERNING LAW. THIS 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, WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAWS.
8. Counterparts. This 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.
D-4
111
IN WITNESS WHEREOF, the parties hereto, through their respective officers
thereunto duly authorized, have duly executed this Assignment 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 in
respect of the Continental Airlines Pass
Through Trust 1997-1_-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 in
respect of the Continental Airlines Pass
Through Trust 1997-1_-S
By:
----------------------------------
Title:
X-0
000
Xxxxxxxx I
Schedule of Assigned Documents
(1) Intercreditor Agreement dated as of March 21, 1997 among the
Trustee, the Other Trustees, the Liquidity Providers, the liquidity
providers, if any, relating to the Certificates issued under (and as
defined in) each of the Other Pass Through Trust Agreements and the
Subordination Agent.
(2) Registration Rights Agreement dated as of March 21, 1997 among
the Initial Purchasers, the Trustee, the Other Trustees, and the Company.
(3) Escrow and Paying Agent Agreement (Class __) dated as of March
21, 1997 among the Escrow Agent, the Initial Purchasers, the Trustee and
the Paying Agent.
(4) Note Purchase Agreement dated as of March 21, 1997 among the
Company, the Trustee, the Other Trustees, the Depositary, the Escrow
Agent, the Paying Agent and the Subordination Agent.
(5) Deposit Agreement (Class __) dated as of March 21, 1997 between
the Escrow Agent and the Depositary.
(6) Each of the Operative Agreements (as defined in the
Participation Agreement for each Aircraft) in effect as of the Transfer
Date.
D-6
113
Schedule II
Schedule of Beneficiaries
Wilmington Trust Company, not in its individual capacity but solely as
Subordination Agent.
Wilmington Trust Company, not in its individual capacity but solely as Paying
Agent
ABN AMRO Bank N.V., Chicago Branch, as Liquidity Provider
ING Bank N.V., as Liquidity Provider
Continental Airlines, Inc.
Credit Suisse First Boston Corporation, as Initial Purchaser
Xxxxxx Xxxxxxx & Co. Incorporated, as Initial Purchaser
Chase Securities Inc., as Initial Purchaser
Xxxxxxx Xxxxx & Co., as Initial Purchaser
First Security Bank, National Association, as Escrow Agent
Each of the other parties to the Assigned Documents
D-7
114
EXHIBIT E
FORM OF NOTICE TO DESIGNATE NOMINEE AS WITHHOLDING AGENT
(Treas. Reg. Section 1.1445-8(f); 17 C.F.R. 240.10b-17(b)(1))
[DATE]
National Association of
Securities Dealers, Inc.
Market Operations
00 Xxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Re: Continental Airlines Pass Through Certificates,
Series 1997-1A-O Pass Through Certificates,
Series 1997-1A-O
With respect to distributions to be made on [INSERT DISTRIBUTION DATE] to
holders of the above-referenced Pass Through Certificates in the amount of $
____ per $1,000 principal amount of Certificate, we hereby designate the
appropriate nominees to withhold from amounts distributable to any non-U.S.
Person such amounts as required by section 1446 of the Internal Revenue Code of
1986, as amended. The term "non-U.S. Person" means any person or entity that,
for U.S. federal income tax purposes, is not a "U.S. Person." "U.S. Person"
for this purpose means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized under the laws of
the United States or any political subdivision thereof, or an estate or trust,
the income of which is subject to U.S. federal income taxation regardless of
its source. The date of record for determining holders of Certificates
entitled to receive the distribution on [INSERT DISTRIBUTION DATE] is [INSERT
RELATED RECORD DATE].
Very truly yours,
E-1
