TRUST SUPPLEMENT No. 2007-1A-S Dated as of April 10, 2007 between WILMINGTON TRUST COMPANY as Trustee, and CONTINENTAL AIRLINES, INC. to PASS THROUGH TRUST AGREEMENT Dated as of September 25, 1997 Continental Airlines Pass Through Trust 2007-1A-S Pass...
TRUST
SUPPLEMENT No. 2007-1A-S
Dated
as
of April 10, 2007
between
WILMINGTON
TRUST COMPANY
as
Trustee,
and
CONTINENTAL
AIRLINES, INC.
to
Dated
as
of September 25, 1997
$756,762,000
Continental
Airlines Pass Through Trust 2007-1A-S
5.983%
Continental Airlines
Pass
Through Certificates,
Series
2007-1A-S
Page
This
Trust Supplement No. 2007-1A-S, dated as of April 10, 2007 (herein called
the
"Trust
Supplement"),
between Continental Airlines, Inc., a Delaware corporation (the "Company"),
and
Wilmington Trust Company (the "Trustee"),
to
the Pass Through Trust Agreement, dated as of September 25, 1997, between
the Company and the Trustee (the "Basic
Agreement").
W I T N E S S E T H:
WHEREAS,
the Basic Agreement, unlimited as to the aggregate principal amount of
Certificates (unless otherwise specified herein, capitalized terms used herein
without definition having the respective meanings specified in the Basic
Agreement) which may be issued thereunder, has heretofore been executed and
delivered;
WHEREAS,
the Company has obtained commitments from Boeing for the delivery of certain
Aircraft;
WHEREAS,
as of the Transfer Date (as defined below), the Company will have financed
the
acquisition of all or a portion of such Aircraft through separate secured
loan
transactions, under which the Company owns such Aircraft (collectively, the
"Owned
Aircraft");
WHEREAS,
as of the Transfer Date, in the case of each Owned Aircraft, the Company
will
have issued pursuant to an Indenture, on a recourse basis, Equipment Notes
to
finance a portion of the purchase price of such Owned Aircraft;
WHEREAS,
as of the Transfer Date, the Related Trustee will assign, transfer and deliver
all of such trustee's right, title and interest to the trust property held
by
the Related Trustee to the Trustee pursuant to the Assignment and Assumption
Agreement (as defined below);
WHEREAS,
the Trustee, effective only, but automatically, upon execution and delivery
of
the Assignment and Assumption Agreement, will be deemed to have declared
the
creation of the Continental Airlines Pass Through Trust 2007-1A-S (the
"Applicable
Trust")
for
the benefit of the Applicable Certificateholders, and each Holder of Applicable
Certificates outstanding as of the Transfer Date, as the grantors of the
Applicable Trust, by their respective acceptances of such Applicable
Certificates, will join in the creation of the Applicable Trust with the
Trustee;
WHEREAS,
all Applicable Certificates (as defined below) deemed issued by the Applicable
Trust will evidence fractional undivided interests in the Applicable Trust
and
will convey no rights, benefits or interests in respect of any property other
than the Trust Property except for those Applicable Certificates to which
an
Escrow Receipt (as defined below) has been affixed;
WHEREAS,
upon the execution and delivery of the Assignment and Assumption Agreement,
all
of the conditions and requirements necessary to make this Trust Supplement,
when
duly executed and delivered, a valid, binding and legal instrument in accordance
with its
terms
and
for the purposes herein expressed, have been done, performed and fulfilled,
and
the execution and delivery of this Trust Supplement in the form and with
the
terms hereof have been in all respects duly authorized;
WHEREAS,
this Trust Supplement is subject to the provisions of the Trust Indenture
Act of
1939, as amended, and shall, to the extent applicable, be governed by such
provisions;
NOW
THEREFORE, in consideration of the premises herein, it is agreed between
the
Company and the Trustee as follows:
THE
CERTIFICATES
Section
1.01.
The
Certificates.
The
Applicable Certificates shall be known as "Continental Airlines Pass Through
Certificates, Series 2007-1A-S". Each Applicable Certificate represents a
fractional undivided interest in the Applicable Trust created hereby. The
Applicable Certificates shall be the only instruments evidencing a fractional
undivided interest in the Applicable Trust.
The
terms
and conditions applicable to the Applicable Certificates are as
follows:
(a) The
aggregate principal amount of the Applicable Certificates that shall be
initially deemed issued under the Agreement shall be equal to the aggregate
principal amount of "Outstanding" pass through certificates representing
fractional undivided interests in the Related Trust on the Transfer Date.
Subject to the preceding sentence and Section 5.01 of this Trust Supplement
and
except for Applicable Certificates authenticated and delivered under Sections
3.03, 3.04, 3.05 and 3.06 of the Basic Agreement, no Applicable Certificates
shall be authenticated under the Agreement.
(b) The
Regular Distribution Dates with respect to any payment of Scheduled Payments
means April 19 and October 19 of each year, commencing on October 19, 2007,
until payment of all of the Scheduled Payments to be made under the Equipment
Notes has been made.
(c) The
Special Distribution Dates with respect to the Applicable Certificates means
any
Business Day on which a Special Payment is to be distributed pursuant to
the
Agreement.
(d) At
the
Escrow Agent's request under the Escrow Agreement, the Trustee shall affix
the
corresponding Escrow Receipt to each Applicable Certificate. In any event,
any
transfer or exchange of any Applicable Certificate shall also effect a transfer
or exchange of the related Escrow Receipt. Prior to the Final Withdrawal
Date,
no transfer or exchange of any Applicable Certificate shall be permitted
unless
the corresponding Escrow Receipt is attached thereto and also is so transferred
or exchanged.
By
acceptance of any Applicable Certificate to which an Escrow Receipt is attached,
each Holder of such an Applicable Certificate acknowledges and accepts the
restrictions on transfer of the Escrow Receipt set forth herein and in the
Escrow Agreement.
(e) (i) The
Applicable Certificates shall be in the form attached as Exhibit A to the
Related Pass Through Trust Supplement, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
by
the Related Pass Through Trust Agreement or the Agreement, as the case may
be,
or as the Trustee may deem appropriate, to reflect the fact that the Applicable
Certificates are being issued under the Agreement as opposed to under the
Related Pass Through Trust Agreement. Any Person acquiring or accepting an
Applicable Certificate or an interest therein will, by such acquisition or
acceptance, be deemed to represent and warrant to and for the benefit of
the
Company that either (i) the assets of an employee benefit plan subject to
Title I of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or of a plan subject to Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), have not been used to purchase or
hold
Applicable Certificates or an interest therein or (ii) the purchase and
holding of Applicable Certificates or an interest therein is exempt from
the
prohibited transaction restrictions of ERISA and the Code pursuant to one
or
more prohibited transaction statutory or administrative exemptions.
(ii) The
Applicable Certificates shall be Book-Entry Certificates and shall be subject
to
the conditions set forth in the Letter of Representations between the Company
and the Clearing Agency attached as Exhibit B to the Related Pass Through
Trust
Supplement.
(f) The
"Participation Agreements" as defined in this Trust Supplement are the "Note
Purchase Agreements" referred to in the Basic Agreement.
(g) The
Applicable Certificates are subject to the Intercreditor Agreement, the Deposit
Agreement and the Escrow Agreement.
(h) The
Applicable Certificates are entitled to the benefits of the Liquidity
Facility.
(i) The
Responsible Party is the Company.
(j) The
date
referred to in clause (i) of the definition of the term "PTC Event of Default"
in the Basic Agreement is the Final Maturity Date.
(k) The
"particular sections of the Note Purchase Agreement", for purposes of
clause (3) of Section 7.07 of the Basic Agreement, are Section 8.1 of each
Participation Agreement.
(l) The
Equipment Notes to be acquired and held in the Applicable Trust, and the
related
Aircraft and Note Documents, are described in the NPA.
DEFINITIONS
Section
2.01. Definitions.
For all purposes of the Basic Agreement as supplemented by this Trust
Supplement, the following capitalized terms have the following meanings (any
term used herein which is defined in both this Trust Supplement and the Basic
Agreement shall have the meaning assigned thereto in this Trust Supplement
for
purposes of the Basic Agreement as supplemented by this Trust
Supplement):
Agreement:
Means
the Basic Agreement, as supplemented by this Trust Supplement.
Aircraft:
Means
each of the New Aircraft or Substitute Aircraft in respect of which a
Participation Agreement is entered into in accordance with the NPA (or any
substitute aircraft, including engines therefor, owned by the Company and
securing one or more Equipment Notes).
Aircraft
Purchase Agreement:
Has the
meaning specified in the NPA.
Applicable
Certificate:
Means
any of the "Applicable Certificates" issued by the Related Trust and that
are
"Outstanding" (as defined in the Related Pass Through Trust Agreement) as
of the
Transfer Date (the "Transfer
Date Certificates")
and
any Certificate issued in exchange therefor or replacement thereof pursuant
to
the Agreement.
Applicable
Certificateholder:
Means
the Person in whose name an Applicable Certificate is registered on the Register
for the Applicable Certificates.
Applicable
Trust:
Has the
meaning specified in the recitals hereto.
Assignment
and Assumption Agreement:
Means
the assignment and assumption agreement substantially in the form of Exhibit
C
to the Related Pass Through Trust Supplement executed and delivered in
accordance with Section 7.01 of the Related Trust Supplement.
Basic
Agreement:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Boeing:
Means
The Boeing Company.
Business
Day:
Means
any day other than a Saturday, a Sunday or a day on which commercial banks
are
required or authorized to close in Houston, Texas, New York, New York, or,
so
long as any Applicable Certificate is Outstanding, the city and state in
which
the Trustee, the Subordination Agent or any Loan Trustee maintains its Corporate
Trust Office or receives and disburses funds.
Certificate
Buyout Event:
Means
that a Continental Bankruptcy Event has occurred and is continuing and the
following events have occurred: (A) (i) the 60-day period specified in Section
1110(a)(2)(A) of the U.S. Bankruptcy Code (the “60-Day Period”) has expired and
(ii) Continental has not entered into one or more agreements under Section
1110(a)(2)(A) of the U.S. Bankruptcy Code to perform all of its obligations
under all of the Indentures or, if it has entered into such agreements, has
at
any time thereafter failed to cure any default under any of the Indentures
in
accordance with Section 1110(a)(2)(B) of the Bankruptcy Code; or (B) if prior
to
the expiry of the 60-Day Period, Continental shall have abandoned any
Aircraft.
Class:
Has the
meaning specified in the Intercreditor Agreement.
Company:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Continental
Bankruptcy Event:
Has the
meaning specified in the Intercreditor Agreement.
Controlling
Party:
Has the
meaning specified in the Intercreditor Agreement.
Cut-off
Date:
Means
the earlier of (a) the Delivery Period Termination Date and (b) the
date on which a Triggering Event occurs.
Delivery
Notice:
Has the
meaning specified in the NPA.
Delivery
Period Termination Date:
Has the
meaning specified in the Related Pass Through Trust Supplement.
Deposit
Agreement:
Means
the Deposit Agreement dated as of April 10, 2007, relating to the Applicable
Certificates between the Depositary and the Escrow Agent, as the same may
be
amended, supplemented or otherwise modified from time to time in accordance
with
its terms.
Depositary:
Means
Credit Suisse, a banking institution organized under the laws of Switzerland,
acting through its New York branch.
Deposits:
Has the
meaning specified in the Deposit Agreement.
Distribution
Date:
Means
any Regular Distribution Date or Special Distribution Date as the context
requires.
Escrow
Agent:
Means,
initially, Xxxxx Fargo Bank Northwest, National Association, and any replacement
or successor therefor appointed in accordance with the Escrow
Agreement.
Escrow
Agreement:
Means
the Escrow and Paying Agent Agreement dated as of April 10, 2007 relating
to the
Applicable Certificates, among the Escrow Agent, the Escrow Paying Agent,
the
Related Trustee (and after the Transfer Date, the Trustee) and the Underwriters,
as the same may be amended, supplemented or otherwise modified from time
to time
in accordance with its terms.
Escrow
Paying Agent:
Means
the Person acting as paying agent under the Escrow Agreement.
Escrow
Receipt:
Means
the receipt substantially in the form annexed to the Escrow Agreement
representing a fractional undivided interest in the funds held in escrow
thereunder.
Final
Maturity Date:
Means
October
19, 2023.
Final
Withdrawal:
Has the
meaning specified in the Escrow Agreement.
Final
Withdrawal Date:
Has the
meaning specified in the Escrow Agreement.
Indenture:
Means
each of the separate trust indentures and mortgages relating to the Aircraft,
each as specified or described in a Delivery Notice delivered pursuant to
the
NPA or the related Participation Agreement, in each case as the same may
be
amended, supplemented or otherwise modified from time to time in accordance
with
its terms.
Intercreditor
Agreement:
Means
the Intercreditor Agreement dated as of April 10, 2007 among the Related
Trustee
(and after the Transfer Date, the Trustee), the Related Other Trustees (and
after the Transfer Date, the Other Trustees), the Liquidity Provider, the
liquidity provider relating to the Class B Certificates and Wilmington
Trust Company, as Subordination Agent and as trustee thereunder, as amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
Investors:
Means
the Underwriters, together with all subsequent beneficial owners of the
Applicable Certificates.
Liquidity
Facility:
Means,
initially, the Revolving Credit Agreement dated as of April 10, 2007 relating
to
the Applicable Certificates, between the Liquidity Provider and Wilmington
Trust
Company, as Subordination Agent, as agent and trustee for the Applicable
Trust,
and, from and after the replacement of such agreement pursuant to the
Intercreditor Agreement, the replacement liquidity facility therefor, in
each
case as amended, supplemented or otherwise modified from time to time in
accordance with their respective terms.
Liquidity
Provider:
Means,
initially, RZB Finance LLC, a limited liability company duly established
under
the laws of Delaware, and any replacements or successors therefor appointed
in
accordance with the Intercreditor Agreement.
New
Aircraft:
Has the
meaning specified in the NPA.
Note
Documents:
Means
the Equipment Notes with respect to the Applicable Certificates and, with
respect to any such Equipment Note, the Indenture and the Participation
Agreement relating to such Equipment Note.
NPA:
Means
the Note Purchase Agreement dated as of April 10, 2007 among the Related
Trustee
(and after the Transfer Date, the Trustee), the Related Other Trustees (and
after the Transfer Date, the Other Trustees), the Company, the Escrow Agent,
the
Escrow Paying Agent and the Subordination Agent, as the same may be amended,
supplemented or otherwise modified from time to time, in accordance with
its
terms.
Other
Agreements:
Means
(i) the Basic Agreement as supplemented by Trust Supplement
No. 2007-1B-S dated as of the date hereof relating to Continental Airlines
Pass Through Trust 2007-1B-S, (ii) the Basic Agreement as supplemented by
Trust Supplement No. 2007-1C-S dated as of the date hereof relating to
Continental Airlines Pass Through Trust 2007-1C-S, (iii) the Basic Agreement
as
supplemented by a Trust Supplement relating to any Additional Trust and (iv)
the
Basic Agreement as supplemented by a Trust Supplement relating to any
Refinancing Trust.
Other
Trustees:
Means
the trustees under the Other Agreements, and any successor or other trustee
appointed as provided therein.
Other
Trusts:
Means
the Continental Airlines Pass Through Trust 2007-1B-S, the Continental Airlines
Pass Through Trust 2007-1C-S, an Additional Trust or Trusts, if any, and
a
Refinancing Trust or Trusts, if any, created by the Other
Agreements.
Outstanding:
When
used with respect to Applicable Certificates, means, as of the date of
determination, all Transfer Date Certificates, and all other Applicable
Certificates theretofore authenticated and delivered under the Agreement,
in
each case except:
(i) Applicable
Certificates theretofore canceled by the Registrar or delivered to the Trustee
or the Registrar for cancellation;
(ii) Applicable
Certificates for which money in the full amount required to make the final
distribution with respect to such Applicable Certificates pursuant to Section
11.01 of the Basic Agreement has been theretofore deposited with the Trustee
in
trust for the Applicable Certificateholders as provided in Section 4.01 of
the
Basic Agreement pending distribution of such money to such Applicable
Certificateholders pursuant to payment of such final distribution;
and
(iii)
Applicable
Certificates in exchange for or in lieu of which other Applicable Certificates
have been authenticated and delivered pursuant to the Agreement.
Owned
Aircraft:
Has the
meaning specified in the third recital to this Trust Supplement.
Participation
Agreement:
Means
each Participation Agreement entered into by the Related Trustee pursuant
to the
NPA, as the same may be amended, supplemented or otherwise modified in
accordance with its terms.
Pool
Balance:
Means,
as of any date, (i) the original aggregate face amount of the "Applicable
Certificates" as defined in the Related Pass Through Trust Agreement, less
(ii) the aggregate amount of all payments made as of such date in respect
of such Certificates, the Applicable Certificates (as defined in the Related
Pass Through Trust Agreement) or the Deposits, other than payments made in
respect of interest or premium thereon or reimbursement of any costs or expenses
incurred in connec-tion therewith. The Pool Balance as of any date shall
be
computed after giving effect to any special distribution with respect to
unused
Deposits, payment of principal of the Equipment Notes, or payment with respect
to other Trust Property and the distribution thereof to be made on that
date.
Pool
Factor:
Means,
as of any Distribution Date, the quotient (rounded to the seventh decimal
place)
computed by dividing (i) the Pool Balance by (ii) the original aggregate
face
amount of the "Applicable Certificates" as defined in the Related Pass Through
Trust Agreement. The Pool Factor as of any Distribution Date shall be computed
after giving effect to any special distribution with respect to unused Deposits,
payment of principal of the Equipment Notes, or payment with respect to other
Trust Property and the distribution thereof to be made on that date.
Prospectus
Supplement:
Means
the final Prospectus Supplement dated March 27, 2007 relating to the offering
of
the Applicable Certificates, the Class B and the Class C
Certificates.
Ratings
Confirmation:
Has the
meaning specified in the Intercreditor Agreement.
Related
Other Pass Through Trust Agreements:
Means
the "Other Agreements" as defined in the Related Pass Through Trust Agreement.
Related
Other Trustees:
Means
the "Other Trustees" as defined in the Related Pass Through Trust
Agreement.
Related
Other Trusts:
Means
the "Other Trusts" as defined in the Related Pass Through Trust Agreement.
Related
Pass Through Trust Agreement:
Means
the Basic Agreement as supplemented by the Trust Supplement No. 2007-1A-O
dated
as of the date hereof (the "Related
Pass Through Trust Supplement"),
relating to the Continental Airlines Pass Through Trust 2007-1A-O and entered
into by the Company and the Related Trustee, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Related
Trust:
Means
the Continental Pass Through Trust 2007-1A-O, formed under the Related Pass
Through Trust Agreement.
Related
Trustee:
Means
the trustee under the Related Pass Through Trust Agreement.
Scheduled
Payment:
Means,
with respect to any Equipment Note, (i) any payment of principal or interest
on
such Equipment Note (other than any such payment which is not in fact received
by the Trustee or any Subordination Agent within five days of the date on
which
such payment is scheduled to be made) or (ii) any payment of interest on
the
Applicable Certificates with funds drawn under the Liquidity Facility, which
payment in any such case represents the installment of principal on such
Equipment Note at the stated maturity of such installment, the payment of
regularly scheduled interest accrued on the unpaid principal amount of such
Equipment Note, or both; provided,
however,
that
any payment of principal, premium, if any, or interest resulting from the
redemption or purchase of any Equipment Note shall not constitute a Scheduled
Payment.
Special
Payment:
Means
any payment (other than a Scheduled Payment) in respect of, or any proceeds
of,
any Equipment Note or Collateral (as defined in each Indenture).
Substitute
Aircraft:
Has the
meaning specified in the NPA.
Transfer
Date:
Means
the moment of execution and delivery of the Assignment and Assumption Agreement
by each of the parties thereto.
Transfer
Date Certificates:
Has the
meaning specified in the definition of "Applicable Certificates".
Triggering
Event:
Has the
meaning assigned to such term in the Intercreditor Agreement.
Trust
Property:
Means
(i) subject to the Intercreditor Agreement, the Equipment Notes held as the
property of the Applicable Trust, all monies at any time paid thereon and
all
monies due and to become due thereunder, (ii) funds from time to time
deposited in the Certificate Account and the Special Payments Account and,
subject to the
|
Intercreditor
Agreement, any proceeds from the sale by the Trustee pursuant to
Article VI of the Basic Agreement of any Equipment Note and
(iii) all rights of the Applicable Trust and the Trustee, on behalf
of the Applicable Trust, under the Intercreditor Agreement, the
Escrow
Agreement, the NPA and the Liquidity Facility, including, without
limitation, all rights to receive certain payments thereunder,
and all
monies paid to the Trustee on behalf of the Applicable Trust pursuant
to
the Intercreditor Agreement or the Liquidity Facility, provided
that rights with respect to the Deposits or under the Escrow Agreement
will not constitute Trust Property.
|
Trust
Supplement:
Has the
meaning specified in the first paragraph of this trust supplement.
Trustee:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Underwriters:
Means,
collectively, Xxxxxx Xxxxxxx & Co. Incorporated, Credit Suisse Securities
(USA) LLC, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Citigroup
Global Markets Inc., UBS Securities LLC, Calyon Securities (USA) Inc. and
X.X.Xxxxxx Securities Inc.
Underwriting
Agreement:
Means
the Underwriting Agreement dated March 27, 2007 among the Underwriters, the
Company and the Depositary, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
DISTRIBUTIONS;
STATEMENTS TO CERTIFICATEHOLDERS
Section
3.01. Statements
to Applicable Certificateholders.
(a) On each Distribution Date, the Trustee will include with each
distribution to Applicable Certificateholders of a Scheduled Payment or Special
Payment, as the case may be, a statement setting forth the information provided
below (in the case of a Special Payment, reflecting in part the information
provided by the Escrow Paying Agent under the Escrow Agreement). Such statement
shall set forth (per $1,000 face amount Applicable Certificate as to (ii),
(iii), (iv) and (v) below) the following information:
(i) the
aggregate amount of funds distributed on such Distribution Date under the
Agreement and under the Escrow Agreement, indicating the amount allocable
to
each source, including any portion thereof paid by the Liquidity
Provider;
(ii) the
amount of such distribution under the Agreement allocable to principal and
the
amount allocable to premium, if any;
(iii) the
amount of such distribution under the Agreement allocable to
interest;
(iv) the
amount of such distribution under the Escrow Agreement allocable to
interest;
(v) the
amount of such distribution under the Escrow Agreement allocable to unused
Deposits, if any; and
(vi) the
Pool
Balance and the Pool Factor.
With
respect to the Applicable Certificates registered in the name of a Clearing
Agency or its nominee, on the Record Date prior to each Distribution Date,
the
Trustee will request that such Clearing Agency post on its Internet bulletin
board a securities position listing setting forth the names of all Clearing
Agency Participants reflected on such Clearing Agency’s books as holding
interests in the Applicable Certificates on such Record Date. On each
Distribution Date, the Trustee will mail to each such Clearing Agency
Participant the statement described above and will make available additional
copies as requested by such Clearing Agency Participant for forwarding to
holders of interests in the Applicable Certificates.
(b) Within
a
reasonable period of time after the end of each calendar year but not later
than
the latest date permitted by law, the Trustee shall furnish to each Person
who
at any time during such calendar year was an Applicable Certificateholder
of
record a statement containing the sum of the amounts determined pursuant
to
clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and (a)(v) above for such calendar
year or, in the event such Person was an Applicable Certificateholder of
record
during a portion of such calendar year, for such portion of such year, and
such
other items as are readily available to the Trustee and which an Applicable
Certificateholder shall reasonably request as necessary for the purpose of
such
Applicable Certificateholder's preparation of its U.S. federal income tax
returns. Such statement and such other items shall be prepared on the basis
of
information supplied to the Trustee by the Clearing Agency Participants and
shall be delivered by the Trustee to such Clearing Agency Participants to
be
available for forwarding by such Clearing Agency Participants to the holders
of
interests in the Applicable Certificates in the manner described in Section
3.01(a) of this Trust Supplement.
(c) If
the
aggregate principal payments scheduled for a Regular Distribution Date prior
to
the Delivery Period Termination Date differ from the amount thereof set forth
for the Applicable Certificates on page S-33 of the Prospectus Supplement,
by no later than the 15th
day
prior to such Regular Distribution Date, the Trustee (if the Related Trustee
has
not already done so) shall mail written notice of the actual amount of such
scheduled payments to the Applicable Certificateholders of record as of a
date
within 15 Business Days prior to the date of mailing.
(d) Promptly
following (i) the Delivery Period Termination Date, if there has been any
change
in the information set forth in clauses (y) and (z) below from that set forth
in
page S-33 of the Prospectus Supplement, and (ii) the date of any early
redemption or purchase of, or any default in the payment of principal or
interest in respect of, any of the Equipment Notes held in the Applicable
Trust,
or any Final Withdrawal, the Trustee (if the Related Trustee has not already
done so) shall furnish to Applicable Certificateholders of record on such
date a
statement
setting forth (x) the expected Pool Balances for each subsequent Regular
Distribution Date following the Delivery Period Termination Date, (y) the
related Pool Factors for such Regular Distribution Dates and (z) the expected
principal distribution schedule of the Equipment Notes, in the aggregate,
held
as Trust Property at the date of such notice. With respect to the Applicable
Certificates registered in the name of a Clearing Agency, on the Transfer
Date,
the Trustee (if the Related Trustee has not already done so) will request
from
such Clearing Agency a securities position listing setting forth the names
of
all Clearing Agency Participants reflected on such Clearing Agency's books
as
holding interests in the "Applicable Certificates" (as defined in the Related
Pass Through Trust Agreement) on the Delivery Period Termination Date. The
Trustee (if the Related Trustee has not already done so) will mail to each
such
Clearing Agency Participant the statement described above and will make
available additional copies as requested by such Clearing Agency Participant
for
forwarding to holders of interests in the Applicable Certificates.
(e) The
Trustee shall provide promptly to the Applicable Certificateholders all material
non-confidential information received by the Trustee from the
Company.
(f)
This
Section 3.01 supersedes and replaces Section 4.03 of the Basic Agreement,
with
respect to the Applicable Trust.
Section
3.02. Special
Payments Account.
(a) The
Trustee shall establish and maintain on behalf of the Applicable
Certificateholders a Special Payments Account as one or more accounts, which
shall be non-interest bearing except as provided in Section 4.04 of the Basic
Agreement. The Trustee shall hold the Special Payments Account in trust for
the
benefit of the Applicable Certificateholders and shall make or permit
withdrawals therefrom only as provided in the Agreement. On each day when
one or
more Special Payments are made to the Trustee under the Intercreditor Agreement,
the Trustee, upon receipt thereof, shall immediately deposit the aggregate
amount of such Special Payments in the Special Payments Account.
(b)
This
Section 3.02 supersedes and replaces Section 4.01(b) of the Basic Agreement
in
its entirety, with respect to the Applicable Trust.
Section
3.03. Distributions
from Special Payments Account.
(a) On
each Special Distribution Date with respect to any Special Payment or as
soon
thereafter as the Trustee has confirmed receipt of any Special Payments due
on
the Equipment Notes held (subject to the Intercreditor Agreement) in the
Applicable Trust or realized upon the sale of such Equipment Notes, the Trustee
shall distribute out of the Special Payments Account the entire amount of
such
Special Payment deposited therein pursuant to Section 3.02(a) of this Trust
Supplement. There shall be so distributed to each Applicable Certificateholder
of record on the Record Date with respect to such Special Distribution Date
(other than as provided in Section 7.01 of this Trust Supplement concerning
the
final distribution) by check mailed to such Applicable Certificateholder,
at the
address appearing in the Register, such Applicable Certificateholder's pro
rata
share (based on the Fractional Undivided Interest in the Applicable Trust
held
by such Applicable Certificateholder) of the total amount in the Special
Payments Account on account of such Special Payment, except that, with respect
to Applicable Certificates registered on the Record Date in the name of a
Clearing Agency (or its nominee), such distribution shall be made
by
wire
transfer in immediately available funds to the account designated by such
Clearing Agency (or such nominee).
(b) The
Trustee shall, at the expense of the Company, cause notice of each Special
Payment to be mailed to each Applicable Certificateholder at his address
as it
appears in the Register. In the event of redemption or purchase of Equipment
Notes held in the Applicable Trust, such notice shall be mailed not less
than 15
days prior to the Special Distribution Date for the Special Payment resulting
from such redemption or purchase, which Special Distribution Date shall be
the
date of such redemption or purchase. In the case of any Special Payments,
such
notice shall be mailed as soon as practicable after the Trustee has confirmed
that it has received funds for such Special Payment, stating the Special
Distribution Date for such Special Payment which shall occur not less than
15
days after the date of such notice and as soon as practicable thereafter.
Notices mailed by the Trustee shall set forth:
(i) the
Special Distribution Date and the Record Date therefor (except as otherwise
provided in Section 7.01 of this Trust Supplement),
(ii) the
amount of the Special Payment for each $1,000 face amount Applicable Certificate
and the amount thereof constituting principal, premium, if any, and
interest,
(iii) the
reason for the Special Payment, and
(iv) if
the Special Distribution Date is the same date as a Regular Distribution
Date,
the total amount to be received on such date for each $1,000 face amount
Applicable Certificate.
If
the amount of premium, if any, payable upon the redemption or purchase of
an
Equipment Note has not been calculated at the time that the Trustee mails
notice
of a Special Payment, it shall be sufficient if the notice sets forth the
other
amounts to be distributed and states that any premium received will also
be
distributed.
If
any
redemption of the Equipment Notes held in the Trust is canceled, the Trustee,
as
soon as possible after learning thereof, shall cause notice thereof to be
mailed
to each Applicable Certificateholder at its address as it appears on the
Register.
(b)
This
Section 3.03 supersedes and replaces Section 4.02(b) and Section 4.02(c)
of the
Basic Agreement in their entirety, with respect to the Applicable
Trust.
Section
3.04. Limitation
of Liability for Payments.
Section
3.09 of the Basic Agreement shall be amended, with respect to the Applicable
Trust, by deleting the phrase "the Owner Trustees or the Owner Participants"
in
the second sentence thereof and adding in lieu thereof "the Liquidity
Provider".
DEFAULT
Section
4.01. Purchase
Rights of Certificateholders.
(a) By
acceptance of its Applicable Certificate, each Applicable Certificateholder
agrees that at any time after the occurrence and during the continuation
of a
Certificate Buyout Event:
(i)
each
Class B Certificateholder (other than the Company or any of its Affiliates)
shall have the right to purchase all, but not less than all, of the Applicable
Certificates upon 15 days' written notice to the Trustee and each other Class
B
Certificateholder, on the third Business Day next following the expiry of
such
15-day notice period, provided
that (A)
if prior to the end of such 15-day period any other Class B Certificateholder
(other than the Company or any of its Affiliates) notifies such purchasing
Class
B Certificateholder that such other Class B Certificateholder wants to
participate in such purchase, then such other Class B Certificateholder
(other than the Company or any of its Affiliates) may join with the purchasing
Class B Certificateholder to purchase all, but not less than all, of the
Applicable Certificates pro rata based on the Fractional Undivided Interest
in
the Class B Trust held by each such Class B Certificateholder and (B) if
prior
to the end of such 15-day period any other Class B Certificateholder fails
to
notify the purchasing Class B Certificateholder of such other Class B
Certificateholder's desire to participate in such a purchase, then such other
Class B Certificateholder shall lose its right to purchase the Applicable
Certificates pursuant to this Section 4.01(a)(i);
(ii)
each
Class C Certificateholder (other than the Company or any of its Affiliates)
shall have the right (which shall not expire upon any purchase of the Applicable
Certificates pursuant to clause (i) above) to purchase all, but not less
than
all, of the Applicable Certificates and the Class B Certificates upon 15
days'
written notice to the Trustee, the Class B Trustee and each other Class C
Certificateholder, on the third Business Day next following the expiry of
such
15-day notice period, provided
that (A)
if prior to the end of such 15-day period any other Class C Certificateholder
(other than the Company or any of its Affiliates) notifies such purchasing
Class
C Certificateholder that such other Class C Certificateholder wants to
participate in such purchase, then such other Class C Certificateholder (other
than the Company or any of its Affiliates) may join with the purchasing Class
C
Certificateholder to purchase all, but not less than all, of the Applicable
Certificates and the Class B Certificates pro rata based on the Fractional
Undivided Interest in the Class C Trust held by each such Class C
Certificateholder and (B) if prior to the end of such 15-day period any other
Class C Certificateholder fails to notify the purchasing Class C
Certificateholder of such other Class C Certificateholder's desire to
participate in such a purchase, then such other Class C Certificateholder
shall lose its right to purchase the Applicable Certificates and the Class
B
Certificates pursuant to this Section 4.01(a)(ii);
(iii)
if
any Additional Certificates are issued pursuant to one or more Additional
Trusts, each Additional Certificateholder (other than the Company
14
or
any of
its Affiliates), shall have the right (which shall not expire upon any purchase
of the Applicable Certificates pursuant to clauses (i) or (ii) above) to
purchase all, but not less than all, of the Applicable Certificates, the
Class B
Certificates, the Class C Certificates and any Additional Certificates ranked
senior to the Additional Certificates held by the purchasing Additional
Certificateholders upon 15 days' written notice to the Trustee, the Class
B
Trustee, the Class C Trustee, any Additional Trustee with respect to Additional
Certificates that rank senior to the Additional Certificates held by the
purchasing Additional Certificateholders and each other Additional
Certificateholder of the same Class, on the third Business Day next following
the expiry of such 15-day notice period, provided
that (A)
if prior to the end of such 15-day period any other Additional Certificateholder
of such Class (other than the Company or any of its Affiliates) notifies
such
purchasing Additional Certificateholder that such other Additional
Certificateholder wants to participate in such purchase, then such other
Additional Certificateholder (other than the Company or any of its Affiliates)
may join with the purchasing Additional Certificateholder to purchase all,
but
not less than all, of the Applicable Certificates, the Class B Certificates,
the
Class C Certificates and such senior Additional Certificates pro rata based
on
the Fractional Undivided Interest in the applicable Additional Trust held
by
each such Additional Certificateholder and (B) if prior to the end of such
15-day period any other Additional Certificateholder of such Class fails
to
notify the purchasing Additional Certificateholder of such other Additional
Certificateholder's desire to participate in such a purchase, then such other
Additional Certificateholder shall lose its right to purchase the Applicable
Certificates, the Class B Certificates, the Class C Certificates and such
senior Additional Certificates pursuant to this Section
4.01(a)(iii).
(iv)
if
any Refinancing Certificates are issued, each Refinancing Certificateholder
shall have the same right (subject to the same terms and conditions) to purchase
Certificates pursuant to this Section 4.01(a) (and to receive notice in
connection therewith) as the Certificateholders of the Class that such
Refinancing Certificates refinanced.
The
purchase price with respect to the Applicable Certificates shall be equal
to the
Pool Balance of the Applicable Certificates, together with accrued and unpaid
interest thereon to the date of such purchase, without premium, but including
any other amounts then due and payable to the Applicable Certificateholders
under the Agreement, the Intercreditor Agreement, the Escrow Agreement or
any
Note Document or on or in respect of the Applicable Certificates; provided,
however,
that no
such purchase of Applicable Certificates shall be effective unless the
purchaser(s) shall certify to the Trustee that contemporaneously with such
purchase, such purchaser(s) is (are) purchasing, pursuant to the terms of
the
Agreement and the Other Agreements, (A) in the case of any purchase of the
Applicable Certificates pursuant to clause (i) above, all of the Applicable
Certificates, (B) in the case of any purchase of the Applicable
Certificates pursuant to clause (ii) above, all of the Applicable Certificates
and the Class B Certificates, or (C) in all other cases, the
Applicable Certificates, the Class B Certificates, the Class C Certificates
and,
if applicable, the Additional Certificates that are senior to the securities
held by such purchaser(s). Each payment of the purchase price of the Applicable
Certificates referred to in the first sentence hereof shall be made to an
account or accounts designated by the
Trustee
and each such purchase shall be subject to the terms of this Section 4.01.
Each
Applicable Certificateholder agrees by its acceptance of its Applicable
Certificate that (at any time after the occurrence of a Certificate Buyout
Event) it will, upon payment from such Class B Certificateholder(s), Class
C
Certificateholder(s), Additional Certificateholder(s) or Refinancing
Certificateholders, as the case may be, of the purchase price set forth in
the
first sentence of this paragraph, (i) forthwith sell, assign, transfer and
convey to the purchaser(s) thereof (without recourse, representation or warranty
of any kind except for its own acts), all of the right, title, interest and
obligation of such Applicable Certificateholder in the Agreement, the Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity
Facility, the NPA, the Note Documents and all Applicable Certificates and
Escrow
Receipts held by such Applicable Certificateholder (excluding all right,
title
and interest under any of the foregoing to the extent such right, title or
interest is with respect to an obligation not then due and payable as respects
any action or inaction or state of affairs occurring prior to such sale)
(and
the purchaser shall assume all of such Applicable Certificateholder's
obligations under the Agreement, the Escrow Agreement, the Deposit Agreement,
the Intercreditor Agreement, the Liquidity Facility, the NPA, the Note Documents
and all such Applicable Certificates and Escrow Receipts), (ii) if such
purchase occurs after a record date specified in Section 2.03 of the Escrow
Agreement relating to the distribution of unused Deposits and/or accrued
and
unpaid interest on Deposits and prior to or on the related distribution date
thereunder, forthwith turn over to the purchaser(s) of its Applicable
Certificate all amounts, if any, received by it on account of such distribution,
and (iii) if such purchase occurs after a Record Date relating to any
distribution and prior to or on the related Distribution Date, forthwith
turn
over to the purchaser(s) of its Applicable Certificate all amounts, if any,
received by it on account of such distribution. The Applicable Certificates
will
be deemed to be purchased on the date payment of the purchase price is made
notwithstanding the failure of the Applicable Certificateholders to deliver
any
Applicable Certificates and, upon such a purchase, (I) the only rights of
the
Applicable Certificateholders will be to deliver the Applicable Certificates
to
the purchaser(s) and receive the purchase price for such Applicable Certificates
and (II) if the purchaser(s) shall so request, such Applicable Certificateholder
will comply with all the provisions of Section 3.04 of the Basic Agreement
to
enable new Applicable Certificates to be issued to the purchaser in such
denominations as it shall request. All charges and expenses in connection
with
the issuance of any such new Applicable Certificates shall be borne by the
purchaser thereof.
As
used
in this Section 4.01 and elsewhere in this Trust Supplement, the terms
"Additional Certificate", "Additional Certificateholder", "Additional Equipment
Notes", "Additional Trust", "Additional Trust Agreement", "Additional Trustee",
"Class B Certificate", "Class B Certificateholder", "Class B Trust", "Class
B
Trust Agreement", "Class B Trustee", "Class C Certificate", "Class C
Certificateholder", "Class C Trust", "Class C Trust Agreement", "Class C
Trustee", "Refinancing Certificates", "Refinancing Certificateholder",
"Refinancing Equipment Notes" and "Refinancing Trust" shall have the respective
meanings assigned to such terms in the Intercreditor Agreement.
(b) This
Section 4.01 supersedes and replaces Section 6.01(b) of the Basic
Agreement, with respect to the Applicable Trust.
Section
4.02. Amendment
of Section 6.05 of the Basic Agreement.
Section 6.05 of the Basic Agreement shall be amended, with respect to the
Applicable Trust, by deleting the phrase "and thereby annul any Direction
given
by such Certificateholders or the Trustee to such Loan Trustee with respect
thereto," set forth in the first sentence thereof.
THE
TRUSTEE
Section
5.01. Acquisition
of Trust Property.
(a) The
Trustee is hereby irrevocably authorized and directed to execute and deliver
the
Assignment and Assumption Agreement on the date specified in Section 7.01
of the
Related Pass Through Trust Supplement, subject only to the satisfaction of
the
conditions set forth in said Section 7.01. The Agreement (except only for
this
sentence and the immediately preceding sentence hereof, which are effective
upon
execution and delivery hereof) shall become effective upon the execution
and
delivery of the Assignment and Assumption Agreement by the Trustee and the
Related Trustee, automatically and without any further signature or action
on
the part of the Company and the Trustee, and shall thereupon constitute the
legal, valid and binding obligation of the parties hereto enforceable against
each of the parties hereto in accordance with its terms. Upon such execution
and
delivery of the Assignment and Assumption Agreement, the Related Trust shall
be
terminated, the Applicable Certificateholders shall receive beneficial interests
in the Applicable Trust in exchange for their interests in the Related Trust
equal to their respective beneficial interests in the Related Trust and the
"Outstanding" (as defined in the Related Pass Through Trust Agreement) pass
through certificates representing fractional undivided interests in the Related
Trust shall be deemed for all purposes of the Agreement, without further
signature or action of any party or Certificateholder, to be Certificates
representing the same Fractional Undivided Interests in the Trust and Trust
Property. By acceptance of its Applicable Certificate, each Applicable
Certificateholder consents to and ratifies such assignment, transfer and
delivery of the trust property of the Related Trust to the Trustee upon the
execution and delivery of the Assignment and Assumption Agreement. The
provisions of this Section 5.01(a) supersede and replace the provisions of
Section 2.02 of the Basic Agreement with respect to the Applicable Trust,
and
all provisions of the Basic Agreement relating to Postponed Notes or Section
2.02 of the Basic Agreement shall not apply to the Applicable
Trust.
(b) The
Trustee, upon the execution and delivery of the Assignment and Assumption
Agreement, acknowledges its acceptance of all right, title and interest in
and
to the Trust Property and declares that the Trustee holds and will hold such
right, title and interest for the benefit of all then present and future
Applicable Certificateholders, upon the trusts herein and in the Basic Agreement
set forth. By the acceptance of each Applicable Certificate issued to it
under
the Related Pass Through Trust Agreement and deemed issued under the Agreement,
each Holder of any such Applicable Certificate as grantor of the Applicable
Trust thereby joins in the creation and declaration of the Applicable Trust.
The
provisions of this Section 5.01(b) supersede and replace the provisions of
Section 2.03 of the Basic Agreement, with respect to the Applicable
Trust.
Section
5.02. [Intentionally
Omitted]
Section
5.03. The
Trustee.
(a) Subject to Section 5.04 of this Trust Supplement and Section 7.15
of the Basic Agreement, the Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Trust
Supplement, the Deposit Agreement, the NPA or the Escrow Agreement or the
due
execution hereof or thereof by the Company or the other parties thereto (other
than the Trustee), or for or in respect of the recitals and statements contained
herein or therein, all of which recitals and statements are made solely by
the
Company, except that the Trustee hereby represents and warrants that each
of
this Trust Supplement, the Basic Agreement, each Applicable Certificate,
the
Intercreditor Agreement, the NPA and the Escrow Agreement has been executed
and
delivered by one of its officers who is duly authorized to execute and deliver
such document on its behalf.
(b) Except
as
herein otherwise provided and except during the continuation of an Event
of
Default in respect of the Applicable Trust created hereby, no duties,
responsibilities or liabilities are assumed, or shall be construed to be
assumed, by the Trustee by reason of this Trust Supplement other than as
set
forth in the Agreement, and this Trust Supplement is executed and accepted
on
behalf of the Trustee, subject to all the terms and conditions set forth
in the
Agreement, as fully to all intents as if the same were herein set forth at
length.
Section
5.04. Representations
and Warranties of the Trustee.
The
Trustee hereby represents and warrants, on the Transfer Date, that:
(a) the
Trustee has full power, authority and legal right to receive the Trust Property
assigned by the Related Trustee, assume the obligations under, and perform,
the
Assignment and Assumption Agreement, this Trust Supplement, the Intercreditor
Agreement, the Escrow Agreement, the NPA and the Note Documents to which
it is a
party and has taken all necessary action to authorize such receipt, assumption
and performance by it of this Trust Supplement, the Intercreditor Agreement,
the
Escrow Agreement, the NPA and the Note Documents to which it is a
party;
(b) the
receipt of the Trust Property under the Assignment and Assumption Agreement
and
the performance by the Trustee of the Assignment and Assumption Agreement,
this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the
NPA and
the Note Documents to which it is a party (i) will not violate any
provision of any United States federal law or the law of the state of the
United
States where it is located governing the banking and trust powers of the
Trustee
or any order, writ, judgment, or decree of any court, arbitrator or governmental
authority applicable to the Trustee or any of its assets, (ii) will not
violate any provision of the articles of association or by-laws of the Trustee,
and (iii) will not violate any provision of, or constitute, with or without
notice or lapse of time, a default under, or result in the creation or
imposition of any lien on any properties included in the Trust Property pursuant
to the provisions of any mortgage, indenture, contract, agreement or other
undertaking to which it is a party, which violation, default or lien could
reasonably be expected to have an adverse effect on the Trustee's performance
or
ability to perform its duties hereunder or thereunder or on the transactions
contemplated herein or therein;
(c) the
receipt of the Trust Property under the Assignment and Assumption Agreement
and
the performance by the Trustee of the Assignment and Assumption Agreement,
this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the
NPA and
the Note Documents to which it is a party will not require the authorization,
consent, or approval of, the giving of notice to, the filing or registration
with, or the taking of any other action in respect of, any governmental
authority or agency of the United States or the state of the United States
where
it is located regulating the banking and corporate trust activities of the
Trustee; and
(d) the
Assignment and Assumption Agreement has been duly executed and delivered
by the
Trustee and this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement, the NPA and the Note Documents to which it is a party have been,
or
will be, as applicable, duly executed and delivered by the Trustee and
constitute, or will constitute, as applicable, the legal, valid and binding
agreements of the Trustee, enforceable against it in accordance with their
respective terms; provided,
however,
that
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors
generally and (ii) general principles of equity.
Section
5.05. Trustee
Liens.
The
Trustee in its individual capacity agrees, in addition to the agreements
contained in Section 7.17 of the Basic Agreement, that it will at its own
cost
and expense promptly take any action as may be necessary to duly discharge
and
satisfy in full any Trustee's Liens on or with respect to the Trust Property
which is attributable to the Trustee in its individual capacity and which
is
unrelated to the transactions contemplated by the Intercreditor Agreement
or the
NPA.
ADDITIONAL
AMENDMENT; SUPPLEMENTAL AGREEMENTS
Section
6.01. Amendment
of Section 5.02 of the Basic Agreement.
Section 5.02 of the Basic Agreement shall be amended, with respect to the
Applicable Trust, by (i) replacing the phrase "of the Note Documents and of
this Agreement" set forth in paragraph (b) thereof with the phrase "of the
Note Documents, of the NPA and of this Agreement" and (ii) replacing the
phrase "of this Agreement and any Note Document" set forth in the last paragraph
of Section 5.02 with the phrase "of this Agreement, the NPA and any Note
Document".
Section
6.02. Supplemental
Agreements Without Consent of Applicable Certificateholders.
Without
limitation of Section 9.01 of the Basic Agreement, under the terms of, and
subject to the limitations contained in, Section 9.01 of the Basic Agreement,
the Company may (but will not be required to), and the Trustee (subject to
Section 9.03 of the Basic Agreement) shall, at the Company's request, at
any time and from time to time, (i) enter into one or more agreements
supplemental to the Escrow Agreement, the NPA or the Deposit Agreement, for
any
of the purposes set forth in clauses (1) through (9) of such
Section 9.01, and (without limitation of the foregoing or Section 9.01
of the Basic Agreement) (a) clauses (2) and (3) of
such
Section 9.01 shall also be deemed to include the Company's obligations under
(in
the case of clause (2)), and the Company's rights and powers conferred by
(in the case of clause (3)), the NPA, and (b) references in clauses (4),
(6) and
(7) of such Section 9.01 to "any Intercreditor Agreement or any Liquidity
Facility" shall also be deemed to refer to "the Intercreditor Agreement,
the
Liquidity Facility, the Escrow Agreement, the NPA or the Deposit Agreement",
(ii) enter into one or more agreements supplemental to the Agreement, the
Intercreditor Agreement or the NPA to provide for the formation of one or
more
Additional Trusts, the issuance of Additional Certificates, the purchase
by any
Additional Trust of applicable Additional Equipment Notes and other matters
incidental thereto or otherwise contemplated by Section 2.01(b) of the Basic
Agreement, subject to the provisions of Section 4(a)(vi) of the NPA and Section
9.1 of the Intercreditor Agreement, and (iii) enter into one or more agreements
supplemental to the Agreement to provide for the formation of one or more
Refinancing Trusts, the issuance of Refinancing Certificates, the purchase
by
any Refinancing Trust of applicable Refinancing Equipment Notes and other
matters incidental thereto or as otherwise contemplated by Section 2.01(b)
of
the Basic Agreement, subject to the provisions of Section 4(a)(vi) of the
NPA
and Section 9.1(c) of the Intercreditor Agreement.
Section
6.03. Supplemental
Agreements with Consent of Applicable Certificateholders.
Without
limitation of Section 9.02 of the Basic Agreement, the provisions of Section
9.02 of the Basic Agreement shall apply to agreements or amendments for the
purpose of adding any provisions to or changing in any manner or eliminating
any
of the provisions of the Escrow Agreement, the Deposit Agreement, the Liquidity
Facility or the NPA or modifying in any manner the rights and obligations
of the
Applicable Certificateholders under the Escrow Agreement, the Deposit Agreement,
the Liquidity Facility or the NPA; provided that the provisions of
Section 9.02(1) of the Basic Agreement shall be deemed to include
reductions in any manner of, or delay in the timing of, any receipt by the
Applicable Certificateholders of payments upon the Deposits.
Section
6.04. Consent
of Holders of Certificates Issued under Other Trusts.
Notwithstanding any provision in Section 6.02 or Section 6.03 of this Trust
Supplement to the contrary, no amendment or modification of Section 4.01
of this
Trust Supplement shall be effective unless the trustee for each Class of
Certificates affected by such amendment or modification shall have consented
thereto.
TERMINATION
OF TRUST
Section
7.01. Termination
of the Applicable Trust.
(a) The respective obligations and responsibilities of the Company
and the Trustee with respect to the Applicable Trust shall terminate upon
the
distribution to all Applicable Certificateholders and the Trustee of all
amounts
required to be distributed to them pursuant to the Agreement and the disposition
of all property held as part of the Trust Property; provided,
however,
that in
no event shall the Applicable Trust continue beyond one hundred ten (110)
years
following the date of the execution of this Trust Supplement.
Notice
of
any termination, specifying the Distribution Date upon which the Applicable
Certificateholders may surrender their Applicable Certificates to the Trustee
for payment of the final distribution and cancellation, shall be mailed promptly
by the Trustee to Applicable Certificateholders not earlier than the
60th
day and
not later than the 15th
day next
preceding such final Distribution Date specifying (A) the Distribution Date
upon
which the proposed final payment of the Applicable Certificates will be made
upon presentation and surrender of Applicable Certificates at the office
or
agency of the Trustee therein specified, (B) the amount of any such
proposed final payment, and (C) that the Record Date otherwise applicable
to
such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Applicable Certificates at the office or
agency of the Trustee therein specified. The Trustee shall give such notice
to
the Registrar at the time such notice is given to Applicable Certificateholders.
Upon presentation and surrender of the Applicable Certificates in accordance
with such notice, the Trustee shall cause to be distributed to Applicable
Certificateholders such final payments.
In
the
event that all of the Applicable Certificateholders shall not surrender their
Applicable Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Trustee shall give a
second
written notice to the remaining Applicable Certificateholders to surrender
their
Applicable Certificates for cancellation and receive the final distribution
with
respect thereto. No additional interest shall accrue on the Applicable
Certificates after the Distribution Date specified in the first written notice.
In the event that any money held by the Trustee for the payment of distributions
on the Applicable Certificates shall remain unclaimed for two years (or such
lesser time as the Trustee shall be satisfied, after sixty days' notice from
the
Company, is one month prior to the escheat period provided under applicable
law)
after the final distribution date with respect thereto, the Trustee shall
pay to
each Loan Trustee the appropriate amount of money relating to such Loan Trustee
and shall give written notice thereof to the Company.
(b) The
provisions of this Section 7.01 supersede and replace the provisions of Section
11.01 of the Basic Agreement in its entirety, with respect to the Applicable
Trust.
MISCELLANEOUS
PROVISIONS
Section 8.01.
Basic
Agreement Ratified.
Except
and so far as herein expressly provided, all of the provisions, terms and
conditions of the Basic Agreement are in all respects ratified and confirmed;
and the Basic Agreement and this Trust Supplement shall be taken, read and
construed as one and the same instrument. All replacements of provisions
of, and
other modifications of the Basic Agreement set forth in this Trust Supplement
are solely with respect to the Applicable Trust.
Section
8.02. GOVERNING
LAW.
THE
AGREEMENT AND THE APPLICABLE CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED
IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THIS SECTION
8.02
SUPERSEDES AND REPLACES SECTION 12.05 OF THE BASIC
AGREEMENT,
WITH RESPECT TO THE APPLICABLE TRUST.
Section
8.03. Execution
in Counterparts.
This
Trust Supplement may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but
one
and the same instrument.
Section
8.04. Intention
of Parties.
The
parties hereto intend that the Applicable Trust be classified for U.S. federal
income tax purposes as a grantor trust under Subpart E, Part I of
Subchapter J of the Internal Revenue Code of 1986, as amended, and not as
a
trust or association taxable as a corporation or as a partnership. Each
Applicable Certificateholder and Investor, by its acceptance of its Applicable
Certificate or a beneficial interest therein, agrees to treat the Applicable
Trust as a grantor trust for all U.S. federal, state and local income tax
purposes. The powers granted and obligations undertaken pursuant to the
Agreement shall be so construed so as to further such intent.
IN
WITNESS WHEREOF, the Company and the Trustee have caused this Trust Supplement
to be duly executed by their respective officers thereto duly authorized,
as of
the day and year first written above.
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CONTINENTAL
AIRLINES, INC.
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By:
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Name:
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Title:
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WILMINGTON
TRUST COMPANY,
as Trustee
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By:
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