FINANCIAL GUARANTY INSURANCE COMPANY, as Policy Provider, CONTINENTAL AIRLINES, INC., WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Subordination Agent and WILMINGTON TRUST COMPANY, as Trustee under the CONTINENTAL AIRLINES...
FINANCIAL
GUARANTY INSURANCE COMPANY,
as
Policy
Provider,
CONTINENTAL
AIRLINES, INC.,
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as Subordination Agent
and
WILMINGTON
TRUST COMPANY,
as
Trustee under the
CONTINENTAL
AIRLINES PASS THROUGH TRUST 2006-1G
CONTINENTAL
AIRLINES PASS THROUGH TRUST CERTIFICATES, SERIES 2006-1G
Dated
as
of June 9, 2006
(This
Table of Contents is for convenience of reference only and shall not be deemed
to be part of this Insurance Agreement. All capitalized terms used in this
Insurance Agreement and not otherwise defined shall have the meanings set
forth
in Article I of this Insurance Agreement.)
Page
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ARTICLE
I. DEFINITIONS
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2
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Section
1.01
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2
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Section
1.02
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5
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ARTICLE
II. REPRESENTATIONS, WARRANTIES AND
COVENANTS
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6
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Section
2.01
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6
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Section
2.02
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9
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Section
2.03
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9
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Section
2.04
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9
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ARTICLE
III. THE POLICY; REIMBURSEMENT;
INDEMNIFICATION
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11
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Section
3.01
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11
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Section
3.02
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13
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Section
3.03
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14
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Section
3.04
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14
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Section
3.05
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14
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Section
3.06
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15
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ARTICLE
IV. FURTHER AGREEMENTS
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15
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Section
4.01
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15
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Section
4.02
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16
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Section
4.03
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16
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Section
4.04
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17
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Section
4.05
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18
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ARTICLE
V. MISCELLANEOUS
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18
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Section
5.01
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18
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Section
5.02
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18
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Section
5.03
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19
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Section
5.04
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20
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Section
5.05
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20
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Section
5.06
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20
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Section
5.07
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21
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Section
5.08
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00
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-x-
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Xxxxxxx
0.00
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21
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Section
5.10
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21
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Section
5.11
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21
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Section
5.12
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21
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Section
5.13
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21
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INSURANCE
AND INDEMNITY AGREEMENT (as may be amended, modified or supplemented from
time
to time, this “Insurance
Agreement”),
dated
as of June 9, 2006, by and among FINANCIAL GUARANTY INSURANCE COMPANY, as
Policy
Provider (“FGIC”
or
the
“Policy
Provider”),
CONTINENTAL AIRLINES, INC. (“Continental”),
WILMINGTON TRUST COMPANY, not in its individual capacity but solely as
Subordination Agent (the “Subordination
Agent”),
and
WILMINGTON TRUST COMPANY, as Class G Trustee (the “Class
G Trustee”).
W
I T N E S S E T H :
WHEREAS,
Continental is the owner of certain Pledged Spare Parts;
WHEREAS,
pursuant to the Trust Indenture, Continental will issue, on a recourse basis,
two series of Equipment Notes which are to be secured by a security interest
in
all right, title and interest of Continental in and to certain Pledged Spare
Parts and certain other property described in the Trust Indenture;
WHEREAS,
the Trustee under each of the Trust Agreements, will create the Trusts, which
will acquire the Equipment Notes;
WHEREAS,
pursuant to each Trust Agreement, a separate Trust has been created to
facilitate the sale of the Certificates;
WHEREAS,
(i) the Primary Liquidity Provider and the Subordination Agent, as agent
for the
Class G Trustee, have entered into the Primary Liquidity Facility for the
benefit of the Class G Certificateholders, (ii) the Above-Cap Liquidity Provider
and the Subordination Agent, as agent for the Class G Trustee, have entered
into
the Above-Cap Liquidity Facility for the benefit of the Class G
Certificateholders, (iii) the Trustee on behalf of each Trust, the Primary
Liquidity Provider, the Above-Cap Liquidity Provider, the Policy Provider
and
the Subordination Agent have entered into the Intercreditor Agreement and
(iv)
Continental, the Mortgagee and the Policy Provider have entered into the
Collateral Maintenance Agreement;
WHEREAS,
the Policy Provider has issued a Policy in respect of the Class G Certificates,
pursuant to which it has agreed to guarantee the payment of interest to the
Subordination Agent for the benefit of the Class G Trustee and the Class G
Certificateholders and the payment of principal of the Class G Certificates
on the Final Distribution Date for the Class G Certificates and as
otherwise provided therein; and
WHEREAS,
each of Continental, the Class G Trustee and the Subordination Agent has
agreed
to undertake certain obligations in consideration for the Policy Provider’s
issuance of the Policy;
NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein
contained, the parties hereto agree as follows:
ARTICLE
I.
DEFINITIONS
DEFINITIONS
Section
1.01 Defined
Terms.
Unless
the context clearly requires otherwise, all capitalized terms used but not
defined herein shall have the respective meanings assigned to them in the
Intercreditor Agreement or, if not defined therein, in the Policy described
below. For purposes of this Insurance Agreement, the following terms shall
have
the following meanings:
“Act”
means
Part A of subtitle VII of title 49, United States Code, as amended from time
to
time, or any similar legislation of the United States enacted in substitution
or
replacement thereof.
“Applicable
Time”
means
5
p.m., Eastern Time on the Offer Date.
“Bankruptcy
Code”
means
the United States Bankruptcy Code, 11 U.S.C. Section 101 et seq.
“Base
Prospectus”
means
the base prospectus of Continental, dated as of April 10, 2006, covering
pass
through certificates.
“Citizen
of the United States”
is
defined in Section 40102(a)(15) of the Act and in the FAA
Regulations.
“Closing
Date”
means
June 9, 2006.
“Continental”
has
the
meaning given such term in the preamble hereto.
“Collateral
Maintenance Agreement”
means
the Collateral Maintenance Agreement, dated as the date hereof by and among
Continental, the Mortgagee and the Policy Provider.
“Event
of Loss”
has
the
meaning given such term in the Trust Indenture.
“Expenses”
means
any and all liabilities, obligations, losses (other than losses from
non-reimbursement of amounts paid by FGIC under the Policy), damages,
settlements, penalties, claims, actions, suits, costs, out-of-pocket expenses
and disbursements (including, without limitation, reasonable fees and
disbursements of legal counsel, accountants, appraisers, inspectors or other
professionals, and costs of investigation).
“FAA”
means
the Federal Aviation Administration of the United States of America or any
Government Entity succeeding to the functions of such Federal Aviation
Administration.
“FGIC”
has
the
meaning given such term in the preamble hereto.
“Final
Dissolution Date”
means
following the occurrence of a Triggering Event, the Distribution Date next
succeeding the date of receipt by the Subordination Agent of the
proceeds
of the sale of the Series G Equipment Note or the Pledged Spare Parts comprising
all of the Pledged Spare Parts then subject to the Lien of the Trust Indenture.
“Final
Distribution Date”
means
the date which is the earlier of the (i) Final Legal Distribution Date or
(ii) Final Dissolution Date.
“Final
Prospectus”
means
the Base Prospectus as supplemented by the Final Prospectus Supplement.
“Final
Prospectus Supplement”
means
the final prospectus supplement, dated as of May 24, 2006, with respect to
the
Certificates.
“Financing
Statements”
means
collectively, UCC-1 (and, where appropriate, UCC-3) financing statements
covering the related Collateral, naming Continental as debtor, showing Mortgagee
as secured party, for filing in Delaware and each other jurisdiction in which
such filing is made on or before the Closing Date.
“GAAP”
means
generally accepted accounting principles as set forth in the statements of
financial accounting standards issued by the Financial Accounting Standards
Board of the American Institute of Certified Public Accountants, as such
principles may at any time or from time to time be varied by any applicable
financial accounting rules or regulations issued by the SEC and, with respect
to
any Person, shall mean such principles applied on a basis consistent with
prior
periods except as may be disclosed in such Person's financial
statements.
“Government
Entity”
means
(a) any federal, state, provincial or similar government, and any body, board,
department, commission, court, tribunal, authority, agency or other
instrumentality of any such government or otherwise exercising any executive,
legislative, judicial, administrative or regulatory functions of such government
or (b) any other government entity having jurisdiction over any matter
contemplated by the Operative Documents or relating to the observance or
performance of the obligations of any of the parties to the Operative
Documents.
“Indemnification
Agreement”
means
the Indemnification Agreement, dated as of May 24, 2006, among FGIC, Continental
and the Underwriter, as amended, supplemented or otherwise modified from
time to
time in accordance with its terms.
“Insurance
Agreement”
has
the
meaning given such term in the initial paragraph hereof.
“Intercreditor
Agreement”
means
the Intercreditor Agreement, dated as of June 9, 2006, among Wilmington Trust
Company, as Trustee under each Trust, the Primary Liquidity Provider, the
Above-Cap Liquidity Provider, the Subordination Agent and the Policy
Provider.
“Investment
Company Act”
means
the United States Investment Company Act of 1940, including, unless the context
otherwise requires, the rules and regulations thereunder, as amended from
time
to time.
“Lien”
means
any mortgage, pledge, lien, charge, encumbrance or security interest affecting
the title to or any interest in property.
“Material
Adverse Change”
means,
in respect of any Person as at any date, a material adverse change in the
ability of such Person to perform its obligations under any of the Operative
Documents to which it is a party as of such date, including any material
adverse
change in the business, financial condition, results of operations or properties
of such Person on a consolidated basis with its subsidiaries which is reasonably
likely to have such effect.
“Mortgagee”
means
Wilmington Trust Company in its capacity as Mortgagee under the Trust
Indenture.
“Offer
Date”
means
May 24, 2006.
“Operative
Documents”
means
this Insurance Agreement, the Policy, the Indemnification Agreement, the
Intercreditor Agreement, the Trust Indenture, the Note Purchase Agreement,
the
Series G Equipment Note, the Class G Certificates, the Primary Liquidity
Facility, the Above-Cap Liquidity Facility, the Class G Trust Agreement,
the Collateral Maintenance Agreement and the Policy Fee Letter, together
with
all exhibits and schedules included with any of the foregoing.
“Person”
means
an individual, joint stock company, trust, unincorporated association, joint
venture, corporation, business or owner trust, partnership or other organization
or entity (whether governmental or private).
“Policy”
means
the Financial Guaranty Insurance Policy No. 06030067, together with all
endorsements thereto, issued by the Policy Provider in favor of the
Subordination Agent, for the benefit of the Class G Certificateholders, as
each
of the same may be amended from time to time in accordance with the terms
of the
Intercreditor Agreement.
“Policy
Fee Letter”
means
the fee letter, dated as of June 9, 2006 from the Policy Provider to Continental
and the Subordination Agent setting forth the Premium and certain other amounts
payable in respect of the Policy.
“Policy
Provider”
means
Financial Guaranty Insurance Company, or any successor thereto, as issuer
of the
Policy.
“Policy
Provider Information”
means
the information set forth (or incorporated by reference) under the caption
“Description of the Policy Provider” in the Preliminary Prospectus Supplement
and the Final Prospectus Supplement and in Appendix III of the Preliminary
Prospectus Supplement and the Final Prospectus Supplement.
“Preliminary
Prospectus Supplement”
means
the preliminary prospectus supplement, dated as of May 24, 2006, with respect
to
the Certificates.
“Premium”
has
the
meaning given such term in the Policy Fee Letter.
“SEC”
means
the Securities and Exchange Commission of the United States of America, or
any
successor thereto.
“Section
1110”
means
11 U.S.C. § 1110 of the Bankruptcy Code or any successor or analogous section of
the federal bankruptcy law in effect from time to time.
“Securities
Act”
means
the Securities Act of 1933, including, unless the context otherwise requires,
the rules and regulations thereunder, as amended from time to time.
“Security”
means
a
“security” as defined in Section 2(a)(1) of the Securities Act.
“Subordination
Agent”
has
the
meaning given such term in the preamble hereto.
“Time
of Sale Prospectus”
has
the
meaning given to such term in the Underwriting Agreement.
“Transactions”
means
the transactions contemplated by the Operative Documents.
“Trust
Indenture”
means
the Trust Indenture and Mortgage, dated as of the date hereof, between
Continental and the Mortgagee, as amended, supplemented or otherwise modified
from time to time in accordance with its terms.
“UCC”
means
the Uniform Commercial Code as in effect in any applicable
jurisdiction.
“Underwriter
Information”
has
the
meaning given such term in the Indemnification Agreement.
“Underwriting
Agreement”
means
the Underwriting Agreement, dated as of May 24, 2006, by and between the
Underwriter and Continental relating to the purchase of the Class G Certificates
and the Class B Certificates by the Underwriter, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
“U.S.
Air Carrier”
means
any United States air carrier that is a Citizen of the United States holding
an
air carrier operating certificate issued by the Secretary of Transportation
pursuant to the Act for aircraft capable of carrying 10 or more individuals
or
6000 pounds or more of cargo, and as to which there is in force an air carrier
operating certificate issued pursuant to Part 121 of the FAA Regulations,
or
which may operate as an air carrier by certification or otherwise under any
successor or substitute provisions therefor or in the absence
thereof.
Section
1.02 Other
Definitional Provisions.
The
words “hereof,” “herein” and “hereunder” and words of similar import when used
in this Insurance Agreement shall refer to this Insurance Agreement as a
whole
and not to any particular provision of this Insurance Agreement, and Section,
subsection, Schedule and Exhibit references are to this Insurance Agreement
unless otherwise specified. The meanings given to terms defined herein shall
be
equally applicable to both the singular and plural forms of such terms. The
words “include” and “including” shall be deemed to be followed by the phrase
“without limitation.”
REPRESENTATIONS,
WARRANTIES AND COVENANTS
Section
2.01 Representations
and Warranties of Continental.
Continental represents and warrants as of the Closing Date as
follows:
(a) Organization;
Qualification.
Continental is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has the corporate power
and
authority to conduct the business in which it is currently engaged and to
own or
hold under lease its properties and to enter into and perform its obligations
under the Operative Documents to which it is a party as of such date.
Continental is duly qualified to do business as a foreign corporation in
good
standing in each jurisdiction in which the nature and extent of the business
conducted by it, or the ownership of its properties, requires such
qualification, except where the failure to be so qualified would not give
rise
to a Material Adverse Change to Continental.
(b) Corporate
Authorization.
Continental has taken, or caused to be taken, all necessary corporate action
(including, without limitation, the obtaining of any consent or approval
of
stockholders required by its certificate of incorporation or by-laws) to
authorize the execution and delivery of each of the Operative Documents to
which
it is a party as of such date, and the performance of its obligations
thereunder.
(c) No
Violation.
The
execution and delivery by Continental of the Operative Documents to which
it is
a party as of such date, the performance by Continental of its obligations
thereunder and the consummation by Continental of the Transactions contemplated
thereby, do not and will not (a) violate any provision of the certificate
of
incorporation or by-laws of Continental, (b) violate any law, regulation,
rule
or order applicable to or binding on Continental or (c) violate or constitute
any default under (other than any violation or default that would not result
in
a Material Adverse Change to Continental), or result in the creation of any
Lien
(other than Permitted Liens, as defined in the Trust Indenture) upon the
Collateral under, any indenture, mortgage, chattel mortgage, deed of trust,
conditional sales contract, lease, loan or other material agreement, instrument
or document to which Continental is a party or by which it or any of its
properties is bound.
(d) Approvals.
The
execution and delivery by Continental of the Operative Documents to which
it is
a party as of such date, the performance by Continental of its obligations
thereunder and the consummation by Continental of the Transactions contemplated
thereby do not and will not require the consent or approval of, or the giving
of
notice to, or the registration with, or the recording or filing of any documents
with, or the taking of any other action in respect of, (a) any trustee or
other
creditor of Continental and (b) any Government Entity, other than (i) such
as
are required under the Securities Act, the Trust Indenture Act of 1939, as
amended, the securities and Blue Sky laws of the various states and of foreign
jurisdictions or rules and regulations of the National Association of Securities
Dealers, Inc., (ii) filings or recordings with the FAA and under the UCC
or
other laws in effect in any applicable jurisdiction governing the perfection
of
security
interests in the Collateral, which filings or recordings shall have been
made,
or duly presented for filing or recordation, or shall be in the process of
being
duly filed or filed for recordation, on or before such date (and continuation
statements periodically), (iii) filings, recordings, notices or other
ministerial actions pursuant to any routine recording, contractual or regulatory
requirements applicable to it and (iv) filings, recordings, notices or other
actions contemplated by the Operative Documents in connection with the lease
or
sale of the Pledged Spare Parts.
(e) Valid
and Binding Agreements.
The
Operative Documents executed and delivered by Continental on or prior to
such
date have been duly executed and delivered by Continental and, assuming the
due
authorization, execution and delivery thereof by the other party or parties
thereto (and, in the case of the Equipment Notes, when issued and authenticated
in the manner provided for in the Trust Indenture and delivered against payment
of the consideration therefor specified in the Note Purchase Agreement),
constitute the legal, valid and binding obligations of Continental and are
enforceable against Continental in accordance with the respective terms thereof,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws affecting
the
rights of creditors generally and general principles of equity, whether
considered in a proceeding at law or in equity, and subject to principles
of
public policy limiting the right to enforce the indemnification and contribution
provisions contained therein, insofar as such provisions relate to
indemnification and contribution for liabilities arising under federal
securities laws.
(f) Litigation.
Except
as set forth in the Time of Sale Prospectus, Continental’s most recent Annual
Report on Form 10-K, as amended, filed by Continental with the SEC on or
prior
to the Closing Date or in any Quarterly Report on Form 10-Q or Current Report
on
Form 8-K filed by Continental with the SEC subsequent to such Form 10-K,
no
action, claim or proceeding is now pending or, to the actual knowledge of
Continental, threatened against Continental before any court, governmental
body,
arbitration board, tribunal or administrative agency, which is reasonably
likely
to be determined adversely to Continental and if determined adversely to
Continental is reasonably likely to result in a Material Adverse Change to
Continental.
(g) Financial
Condition.
The
audited consolidated balance sheet of Continental with respect to Continental’s
most recent fiscal year included in Continental’s most recent Annual Report on
Form 10-K, as amended, filed by Continental with the SEC, and the related
consolidated statements of operations and cash flows for the fiscal year
then
ended have been prepared in conformity with GAAP and present fairly in all
material respects the consolidated financial condition of Continental and
its
consolidated subsidiaries as of such date and their consolidated results
of
operations and cash flows for such period, and since the date of such balance
sheet, there has been no Material Adverse Change in such financial condition
or
results of operations of Continental, except for matters disclosed in (a)
the
Time of Sale Prospectus, (b) the financial statements referred to above or
(c)
any subsequent Quarterly Report on Form 10-Q or Current Report on Form 8-K
filed
by Continental with the SEC on or prior to the Closing Date.
(h) Registration
and Recordation.
Except
for (a) the filing for recordation (and recordation) of the Trust Indenture
with
the FAA pursuant to the Act and (b) the filing of the Financing Statements
(and
continuation statements relating thereto at periodic intervals), no further
action, including any filing or recording of any document (including any
financing statement in respect thereof under Article 9 of the UCC) is necessary
in order to establish and perfect the Mortgagee’s first priority perfected
security interest in the Pledged Spare Parts and the Spare Parts Documents
(as
defined in the Trust Indenture) (subject only to Permitted Liens as defined
in
the Trust Indenture), as against Continental and any other Person claiming
by or
through Continental in any applicable jurisdiction in the United
States.
(i) Location.
Continental’s location (as such term is used in Section 9-307 of Article 9 of
the UCC) is the State of Delaware.
(j) No
Default.
On the
Closing Date, no event which would constitute an Event of Default (as defined
in
the Trust Indenture) and no event or condition that with the giving of notice
or
the lapse of time or both would become such an Event of Default has occurred
and
is continuing.
(k) No
Event of Loss.
As of
the Closing Date, no Event of Loss has occurred with respect to Pledged Spare
Parts having an Appraised Value of more than $2,000,000, and to the actual
knowledge of Continental, no circumstance, condition, act or event has occurred
that, with the giving of notice or lapse of time or both would give rise
to or
constitute an Event of Loss with respect to Pledged Spare Parts having an
Appraised Value of more than $2,000,000.
(l) Compliance
with Laws.
(a) Continental
is a Citizen of the United States and a U.S. Air Carrier.
(b) Continental
holds all licenses, permits and franchises from the appropriate Government
Entities necessary to authorize Continental to lawfully engage in air
transportation and to carry on scheduled commercial passenger service
as
currently conducted, except where the failure to so hold any such license,
permit or franchise would not give rise to a Material Adverse Change
to
Continental.
(c) Neither
Continental nor the Class G Trust is an “investment company” or a company
controlled by an “investment company” within the meaning of the Investment
Company Act.
(m) Securities
Laws.
Neither
Continental nor any person authorized to act on its behalf has directly or
indirectly offered any beneficial interest or Security relating to the ownership
of the Collateral, or any of the Equipment Notes or any other interest in
or
security under the Trust Indenture, for sale, to, or solicited any offer
to
acquire any such interest or security from, or has sold any such interest
or
security to, any Person in violation of the Securities Act.
(n) Section
1110.
The
Mortgagee is entitled to the benefits of Section 1110 (as in effect on such
date) with respect to the right to take possession of the Pledged Spare Parts
and to enforce any of its other rights or remedies as provided in the Trust
Indenture in the event of a case under Chapter 11 of the Bankruptcy Code
in
which Continental is a debtor.
(o) Accuracy
of Information.
Continental has no knowledge of any circumstances that could reasonably be
expected to cause a Material Adverse Change with respect to Continental except
for matters (i) disclosed in (A) the Time of Sale Prospectus, (B) the
financial statements referred to above or (C) any subsequent Quarterly
Report on Form 10-Q, Current Report on Form 8-K or any press release issued
by Continental filed by Continental with the SEC or (ii) otherwise disclosed
in
writing to FGIC, in each case, on or prior to the Closing Date. Except for
the
Policy Provider Information and the Underwriter Information, in each case,
included in the Time of Sale Prospectus, the Time of Sale Prospectus, as
of the
Applicable Time, did not, and as of the Closing Date, does not, contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
Except
for the Policy Provider Information and the Underwriter Information, in each
case, included in the Final Prospectus, the Final Prospectus, on the date
thereof, did not, and as of the Closing Date, does not, contain any untrue
statement of a material fact or omit to state a material fact necessary to
make
the statements therein, in the light of the circumstances under which they
were
made, not misleading.
Section
2.02 Covenants
of Continental.
Continental covenants and agrees with the Policy Provider that, so
long
as the Policy Provider is the Controlling Party, Continental shall comply
with
the provisions of the Operative Documents relating to maintenance, operation,
insurance, leasing and sale of the Pledged Spare Parts.
Section
2.03 Covenants
of the Class
G Trustee and Subordination Agent.
The
Class G Trustee and the Subordination Agent shall perform and observe, in
all
material respects, all of its covenants, obligations and agreements in any
Operative Document to which it is a party to be observed or performed by
it.
Section
2.04 Representations,
Warranties and Covenants of the Policy Provider.
The
Policy Provider represents, warrants and covenants to Continental and the
Subordination Agent as follows:
(a) Organization
and Licensing.
The
Policy Provider is duly organized, validly existing and in good standing
as a
stock insurance corporation under the laws of the State of New York duly
qualified to conduct an insurance business in every jurisdiction where
qualification may be necessary to accomplish the Transactions.
(b) Corporate
Power.
The
Policy Provider has the corporate power and authority to issue the Policy,
to
execute and deliver this Insurance Agreement and the other Operative Documents
to which it is a party and to perform all of its obligations hereunder and
thereunder.
(c) Authorization;
Approvals.
All
proceedings legally required for the issuance, execution, delivery and
performance of the Policy and the execution, delivery and performance of
this
Insurance Agreement and the other Operative Documents to which the Policy
Provider is a party have been taken and licenses, orders, consents or other
authorizations or approvals of any Government Entities legally required for
the
enforceability of the Policy have been obtained; any proceedings not taken
and
any licenses, authorizations or approvals not obtained are not material to
the
enforceability of the Policy.
(d) Enforceability.
This
Insurance Agreement and the other Operative Documents (other than the Policy)
to
which the Policy Provider is a party constitute, and the Policy, when issued,
will constitute, the legal, valid and binding obligations of the Policy Provider
and are enforceable in accordance with the respective terms thereof, subject
to
bankruptcy, insolvency, reorganization, moratorium, receivership and other
similar laws affecting creditors’ rights generally as they would apply in the
event of the bankruptcy, receivership, insolvency or similar proceeding of
FGIC
and to general principles of equity, whether considered in a proceeding at
law
or in equity, and subject to principles of public policy limiting the right
to
enforce the indemnification provisions contained herein, insofar as such
provisions relate to indemnification for liabilities arising under federal
securities laws.
(e) Exemption
from Registration.
The
Policy is exempt from registration under the Securities Act.
(f) No
Conflicts.
Neither
the execution or delivery by FGIC of the Policy and the Operative Documents
to
which it is a party, nor the performance by FGIC of its obligations thereunder,
will conflict with any provision of the certificate of incorporation or the
bylaws of FGIC nor result in a breach of, or constitute a default under,
any
material agreement or other instrument to which FGIC is a party or by which
any
of its property is bound nor violate any judgment, order or decree applicable
to
FGIC of any governmental or regulatory body, administrative agency, court
or
arbitrator having jurisdiction over FGIC to the extent any such conflict,
breach, default or violation would result in a Material Adverse Change in
the
financial results or operations of FGIC or impairs FGIC’s ability to perform its
obligations under the Policy or any of the Operative Documents.
(g) Financial
Information.
The
consolidated financial statements of the Policy Provider and its subsidiaries
as
of December 31, 2005 and December 31, 2004 and for the years ended
December 31, 2005 and December 31, 2004 and the periods from December 18,
2003 through December 31, 2003 and from January 1, 2003 through December
17,
2003, and the accompanying footnotes, together with the reports thereon of
Ernst
& Young LLP, independent certified public accountant, included in Appendix
III of the Preliminary Prospectus Supplement and the Final Prospectus
Supplement, fairly present in all material respects the financial condition
of
the Policy Provider and its subsidiaries as of such dates and for the periods
covered by such statements in accordance with GAAP consistently applied.
The
consolidated financial statements of the Policy Provider and its subsidiaries
as
of March 31, 2006 and for the three-month period ended March 31,
2006,
included in Appendix III of the Preliminary Prospectus Supplement and the
Final
Prospectus Supplement, present fairly in all material respects the financial
condition of the Policy Provider and its subsidiaries as of such date and
for
such three-month period in accordance with GAAP consistently applied. Since
March 31, 2006, there has been no change in the financial condition and results
of operations of the Policy Provider and its subsidiaries that would materially
and adversely affect the Policy Provider’s ability to perform its obligations
under the Policy.
(h) Policy
Provider Information.
The
information with respect to the Policy Provider in the section of the
Preliminary Prospectus Supplement and the Final Prospectus Supplement, in
each
case, contained therein captioned “Description of the Policy Provider” does not
purport to provide the scope of disclosure required to be included by the
Securities Act with respect to a registrant in connection with the offer
and
sale of securities of such registrant. However, such sections do not, as
of
their respective dates or, in the case of the Final Prospectus Supplement,
as of
the Closing Date, contain any untrue statement of a material fact and do
not
omit to state any material fact required to be stated therein or necessary
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading.
(i) No
Litigation.
There
are no actions, suits, proceedings or investigations pending or, to the best
of
the Policy Provider’s knowledge, threatened against it at law or in equity or
before or by any court, governmental agency, board or commission or any
arbitrator which, if decided adversely, would materially and adversely affect
its ability to perform its obligations under the Policy or the Operative
Documents to which it is a party.
(j) Compliance
with Law, Etc.
No
practice, procedure or policy employed, or proposed to be employed, by the
Policy Provider in the conduct of its business violates any law, regulation,
judgment, agreement, order or decree applicable to the Policy Provider that,
if
enforced, could result in a Material Adverse Change with respect to the Policy
Provider.
(k) The
Policy Provider is not an “investment company” within the meaning of the
Investment Company Act.
THE
POLICY; REIMBURSEMENT; INDEMNIFICATION
Section
3.01 Issuance
of the Policy.
The
Policy Provider agrees to issue the Policy on the Closing Date subject to
satisfaction of the conditions precedent set forth below on or prior to the
Closing Date:
(a) Operative
Documents.
The
Policy Provider shall have received a copy of (i) each of the Operative
Documents, with the exception of the Policy, to be executed and delivered
on or
prior to the Closing Date, in form and substance reasonably satisfactory
to the
Policy Provider, duly authorized, executed and delivered by each party thereto
(other
than the Policy Provider) and (ii) a copy of the Time of Sale Prospectus
and the
Final Prospectus;
(b) Certified
Documents and Resolutions.
The
Policy Provider shall have received (i) a copy of the certificate of
incorporation and by-laws of Continental and (ii) a certificate of the Secretary
or Assistant Secretary of Continental dated the Closing Date stating that
attached thereto is a true, complete and correct copy of resolutions duly
adopted by the Board of Directors of Continental authorizing the execution,
delivery and performance by Continental of the Operative Documents to which
it
is a party and the consummation of the Transactions and that such certificate
of
incorporation, by-laws and resolutions are in full force and effect without
amendment or modification on the Closing Date;
(c) Incumbency
Certificate.
The
Policy Provider shall have received a certificate of the Secretary or an
Assistant Secretary of each of Continental and the Subordination Agent
certifying the names and signatures of the officers of Continental and the
Subordination Agent authorized to execute and deliver the Operative Documents
to
which it is a party on or prior to Closing Date;
(d) Representations
and Warranties.
The
representations and warranties of Continental set forth in this Insurance
Agreement and in the Note Purchase Agreement shall be true and correct on
and as
of the Closing Date;
(e) Documentation.
The
Policy Provider shall have received a copy of each document, instrument,
certificate and opinion delivered on or before the Closing Date pursuant
to the
Operative Documents and the Underwriting Agreement (except for (i) the opinion
of counsel to the Underwriter addressed only to the Underwriter and (ii)
the
opinion of counsel to Continental addressed only to the Underwriter with
respect
to the 10b-5 opinion contained therein), including each opinion of counsel
addressed to any of Xxxxx’x, Standard & Poor’s, the Mortgagee, the Class G
Trustee, Continental and the Subordination Agent, in respect of any of the
parties to the Operative Documents and the Transactions in form and substance
reasonably satisfactory to the Policy Provider, addressed to the Policy Provider
(or accompanied by a letter from the counsel rendering such opinion to the
effect that the Policy Provider is entitled to rely on such opinion as of
its
date as if it were addressed to the Policy Provider) and addressing such
matters
as the Policy Provider may reasonably request, and the counsel providing
each
such opinion shall have been instructed by its client to deliver such opinion
to
the addressees thereof.
(f) Approvals,
Etc.
The
Policy Provider shall have received true and correct copies of all approvals,
licenses and consents, if any, required in connection with the
Transactions;
(g) No
Litigation, Etc.
No
suit, action or other proceeding, investigation or injunction, or final judgment
relating thereto, shall be pending or threatened before any court, governmental
or administrative agency or arbitrator in which it is sought to restrain
or
prohibit or to obtain damages or other relief in connection with any of the
Operative Documents or the consummation of the Transactions;
(h) Legality.
No
statute, rule, regulation or order shall have been enacted, entered or deemed
applicable by any government or governmental or administrative agency or
court
that would make the Transactions illegal or otherwise prevent the consummation
thereof;
(i) Issuance
of Ratings.
The
Policy Provider shall have received confirmation that the risk insured by
the
Policy is rated no lower than “Baa3” by Xxxxx’x and “BBB” by Standard &
Poor’s (in each case, without regard to the Policy) and that the Class G
Certificates, when issued, will be rated “Aaa” by Xxxxx’x and “AAA” by Standard
& Poor’s;
(j) Satisfactory
Documentation.
The
Policy Provider and its counsel shall have reasonably determined that all
documents, certificates and opinions to be delivered in connection with the
Certificates conform to the terms of the related Trust Agreement, the Time
of
Sale Prospectus, the Final Prospectus, this Insurance Agreement and the
Intercreditor Agreement;
(k) Filings.
The
Policy Provider shall have received evidence that there shall have been made,
and shall be in full force and effect, all filings, recordings and
registrations, and there shall have been given or taken any notice or similar
action as is necessary in order to establish, perfect, protect and preserve
the
right, title and interest of the Policy Provider created by the Operative
Documents executed and delivered on or prior to the Closing Date;
(l) Conditions
Precedent.
All
conditions precedent to the issuance of the Certificates under the Trust
Agreements shall have been satisfied or waived (with the consent of the Policy
Provider). All conditions precedent to the effectiveness of the Liquidity
Facilities shall have been satisfied or waived; and
(m) Expenses.
The
Policy Provider shall have received payment in full of all amounts required
to
be paid by Continental to or for account of the Policy Provider on or prior
to
the Closing Date.
Section
3.02 Payment
of Fees and Premium.
(a) Legal
Fees. The
Policy Provider shall be entitled to payment of the Policy Provider’s attorneys’
fees (in an amount not to exceed $175,000) and all other reasonable and actual
fees, expenses and disbursements (including without limitation accountants’
fees) incurred by the Policy Provider in connection with the negotiation,
preparation, execution and delivery of the Time of Sale Prospectus, the Final
Prospectus Supplement, the Operative Documents and all other documents delivered
with respect thereto. Such attorney’s fees and expenses shall be payable by
Continental on the Closing Date, to the extent that the invoice thereof shall
have been presented at least one Business Day prior to the Closing Date,
and
within 15 days after presentation of an invoice therefor, to the extent that
the
invoice thereof shall not have been presented at least one Business Day prior
to
the Closing Date.
(b) [Reserved]
(c) [Reserved]
(d) Premium
and Other Payments.
(i) In
consideration of the issuance by the Policy Provider of the Policy, Continental
shall pay or cause to be paid to the Policy Provider the Premium as provided
in
the Policy Fee Letter. Continental shall also pay such additional amounts,
as
and when due, in accordance with the Policy Fee Letter.
(ii) No
portion of the Premium paid shall be refundable without regard to whether
the
Policy Provider makes any payment under the Policy or any other circumstances
relating to the Class G Certificates or provision being made for payment
of the
Class G Certificates prior to maturity.
Section
3.03 Reimbursement
Obligation.
(a) As
and
when due in accordance with and from the funds specified in Section 3.2 of
the
Intercreditor Agreement, the Policy Provider shall be entitled to reimbursement
for any payment made by the Policy Provider to the Subordination Agent under
the
Policy or to the Primary Liquidity Provider under Section 2.6(c) or Section
3.6(d) of the Intercreditor Agreement, which reimbursement shall be due and
payable on the applicable date provided therein, in an amount equal to the
sum
of the amount to be so paid and all amounts previously paid that remain
unreimbursed, plus accrued and unpaid interest thereon from the date such
amounts became due until paid in full (as well as before judgment), at a
rate of
interest equal to the
applicable Stated Interest Rate for the Class G Certificates plus 2%. In
addition, to the extent that any such payment by the Policy Provider shall
have
been made as a result of a default by the Primary Liquidity Provider in its
obligation to make an Advance, as provided in the Intercreditor Agreement,
the
Policy Provider shall be entitled to the payment of interest on such amounts
to
the extent, at the time and in the priority specified in Section 3.2 of the
Intercreditor Agreement.
(b) [Reserved]
(c) [Reserved]
(d) The
Policy Provider agrees that with respect to any amendment to the Policy that
would increase the reimbursement obligations to the Policy Provider hereunder
above the level set at the Closing Date (“Increased
Obligation Amounts”),
reimbursement to the Policy Provider for such Increased Obligation Amounts
shall
not be required, unless Continental shall have consented to such
amendment.
Section
3.04 [Reserved]
Section
3.05 Procedure
for Payment of Fees and Premium.
(a) All
payments to be made to the Policy Provider hereunder shall be made in lawful
currency of the United States and in immediately available funds on the date
such payment is due by wire transfer to XX Xxxxxx Chase Bank, ABA #000000000
for
credit to
Financial
Guaranty Insurance Company, Account No. 904951812, Re: Continental Airlines
FGIC Policy #06030067 or to such other office or account as FGIC may direct
by
written notice given at least one Business Day prior to such date to
Continental. In the event that the date of any payment to the Policy Provider
or
the expiration of any time period hereunder occurs on a day that is not a
Business Day, then such payment shall be made, or such expiration of time
period
shall occur, on the next succeeding Business Day with the same force and
effect
as if such payment was made or time period expired on the scheduled date
of
payment or expiration date, as applicable.
(b) Unless
otherwise specified herein, the Policy Provider shall be entitled to interest
on
all amounts owed to the Policy Provider under this Insurance Agreement, from
the
date such amounts become due and payable until paid in full, at a rate of
interest equal to the
applicable Stated Interest Rate for the Class G Certificates plus
2%.
(c) Unless
otherwise specified herein, interest payable to the Policy Provider under
this
Insurance Agreement shall be calculated on the basis of a 360 day year and
the
actual number of days elapsed during the period for which such interest
accrues.
Section
3.06 Payment
by Subordination Agent. (a) All
of the fees, expenses and disbursements set forth in Section 3.02 shall be
payable by Continental as provided in such Section. To the extent of
Continental’s failure to pay any such fees, expenses and
disbursements,
the Subordination Agent shall pay such amounts pursuant to the Operative
Documents.
(b) Notwithstanding
anything herein to the contrary, all payments to be made by the Subordination
Agent under this Section 3.06 shall be made only from the amounts that
constitute Scheduled Payments, Special Payments or payments to which FGIC
is
entitled under Section 8 of the Note Purchase Agreement and only to the
extent that the Subordination Agent shall have sufficient income or proceeds
therefrom to enable the Subordination Agent to make payments in accordance
with
the terms of the Intercreditor Agreement. The Policy Provider agrees that
with
respect to payments to be made by the Subordination Agent (i) it will look
solely to such amount to the extent available for distribution to it as provided
in the Intercreditor Agreement and (ii) the Subordination Agent, in its
individual capacity, is not personally liable to it for any amounts payable
or
liability under this Insurance Agreement except as expressly provided in
the
Intercreditor Agreement.
FURTHER
AGREEMENTS
Section
4.01 Effective
Date; Term of the Insurance Agreement.
This
Insurance Agreement shall take effect on the Closing Date and shall remain
in
effect until the later of (a) such
time
as the Policy Provider is no longer subject to a claim under the Policy and
the
Policy shall have been surrendered to the Policy Provider for cancellation
and
(b) all amounts payable to
the
Policy Provider by Continental or the Subordination Agent hereunder or from
any
other source hereunder or under the Operative Documents and all amounts payable
under the Class
G
Certificates have been paid in full;
provided,
however,
that
the provisions of Section 3.04 hereof shall survive any termination of this
Insurance Agreement.
Section
4.02 Further
Assurances and Corrective Instruments.
(a) Neither
Continental nor the Subordination Agent shall grant any waiver of rights
or
agree to any amendment or modification to any of the Operative Documents
to
which either of them is a party which waiver, amendment, or modification
would
have an adverse effect on the rights or remedies of the Policy Provider without
the prior written consent of the Policy Provider so long as the Policy Provider
shall be the Controlling Party, and any such waiver without prior written
consent of the Policy Provider shall be null and void and of no force or
effect.
(b) To
the
extent permitted by law, each of Continental and the Subordination Agent
agrees
that it will, from time to time, execute, acknowledge and deliver, or cause
to
be executed, acknowledged and delivered, such supplements hereto and such
further instruments as the Policy Provider may reasonably request and as
may be
required in the Policy Provider’s reasonable judgment to effectuate the
intention of or facilitate the performance of this Insurance
Agreement.
Section
4.03 Obligations
Absolute.
(a) The
obligations of Continental, the Subordination Agent and the Class G Trustee
hereunder shall be absolute and unconditional and shall be paid or performed
strictly in accordance with this Insurance Agreement under all circumstances
irrespective of:
(i) any
lack
of validity or enforceability of, or any amendment or other modifications
of, or
waiver, with respect to any of the Operative Documents (other than the Policy)
or the Certificates;
(ii) any
exchange or release of any other obligations hereunder;
(iii) the
existence of any claim, setoff, defense, reduction, abatement or other right
that any Person may have at any time against the Policy Provider or any other
Person;
(iv) any
document presented in connection with the Policy proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect;
(v) any
payment by the Policy Provider under the Policy against presentation of a
certificate or other document that does not strictly comply with the terms
of
the Policy;
(vi) any
failure of Continental to receive the proceeds from the sale of the
Certificates; and
(vii) any
other
circumstances, other than payment in full, that might otherwise constitute
a
defense available to, or discharge of, any Person in respect of any Operative
Documents.
(b) Each
of
the parties hereto renounces the right to assert as a defense to the performance
of their respective obligations herein each of the following: (i) to the
extent
permitted by law, any and all redemption and exemption rights and the benefit
of
all valuation and appraisement privileges against the indebtedness and
obligations evidenced by any Operative Documents or by any extension or renewal
thereof; (ii) presentment and demand for payment, notices of nonpayment and
of
dishonor, protest of dishonor and notice of protest; (iii) all notices in
connection with the delivery and acceptance hereof and all other notices
in
connection with the performance, default or enforcement of any payment
hereunder, except as required by the Operative Documents; and (iv) all rights
of
abatement, diminution, postponement or deduction, or to any defense, or to
any
right of setoff or recoupment arising out of any breach under any of the
Operative Documents, by any party thereto or any beneficiary thereof, or
out of
any obligation at any time owing to Continental.
(c) Continental
(i) agrees that any consent, waiver or forbearance hereunder or under the
Operative Documents with respect to an event shall operate only for such
event
and not for any subsequent event; (ii) consents to any and all extensions
of
time that may be granted to Continental by the Policy Provider with respect
to
any payment hereunder or other provisions hereof; and (iii) consents to the
addition of any and all other makers, endorsers, guarantors and other obligors
for any payment hereunder, and to the acceptance of any and all other security
for any payment hereunder, and agree that the addition of any such obligors
or
security shall not affect the liability of Continental for any payment
hereunder.
(d) No
failure by the Policy Provider to exercise, and no delay by the Policy Provider
in exercising, any right hereunder or under the Operative Documents shall
operate as a waiver thereof. The exercise by the Policy Provider of any right
hereunder shall not preclude the exercise of any other right, and the remedies
provided herein to the Policy Provider are declared in every case to be
cumulative and not exclusive of any remedies provided by law or equity.
(e) Nothing
herein shall be construed as prohibiting any party hereto from pursuing any
rights or remedies it may have against any Person in a separate legal
proceeding.
Section
4.04 Assignments;
Reinsurance; Third-Party Rights.
(a) This
Insurance Agreement shall be a continuing obligation of the parties hereto
and
shall be binding upon and inure to the benefit of the parties hereto and
their
respective successors and permitted assigns. The Subordination Agent, except
for
any transaction expressly permitted by Section 8.1 of the Intercreditor
Agreement, and, except for any transaction expressly permitted by Section
4.07
of the Trust Indenture, Continental may not assign their respective rights
under
this Insurance Agreement, or delegate any of their duties hereunder, without
the
prior written consent of the other parties hereto. Any assignments made in
violation of this Insurance Agreement shall be null and void.
(b) The
Policy Provider shall have the right to grant participation rights in its
rights
under this Insurance Agreement and to enter into contracts of reinsurance
with
respect to the Policy upon such terms and conditions as the Policy Provider
may
in its discretion determine; provided,
however,
that no
such participation or reinsurance agreement or arrangement shall
relieve
the Policy Provider of any of its obligations hereunder or under the Policy
or
grant to any participant or reinsurer any rights hereunder or under any
Operative Document.
(c) Except
as
provided herein with respect to participants and reinsurers, nothing in this
Insurance Agreement shall confer any right, remedy or claim, express or implied,
upon any Person, including, particularly, any Class G Certificateholder,
other
than upon the Policy Provider against Continental, or upon Continental against
the Policy Provider, and all the terms, covenants, conditions, promises and
agreements contained herein shall be for the sole and exclusive benefit of
the
parties hereto and their successors and permitted assigns. None of the
Subordination Agent, the Primary Liquidity Provider, the Class G Trustee
or any
Class G Certificateholder shall have any right to payment from the Premium
paid
or payable hereunder or from any amounts paid by Continental pursuant to
Sections 3.02 or 3.03.
Section
4.05 Liability
of the Policy Provider.
Neither
the Policy Provider nor any of its officers, directors or employees shall
be
liable or responsible for: (a) the use that may be made of the Policy by
the
Class G Trustee or for any acts or omissions of the Class G Trustee in
connection therewith; or (b) the validity, sufficiency, accuracy or genuineness
of documents delivered to the Policy
Provider in connection with any claim under the Policy, or of any signatures
thereon, even if such documents or signatures should in fact prove to be
in any
or all respects invalid, insufficient,
fraudulent or forged (unless the Policy Provider shall have actual knowledge
thereof). In furtherance and not in limitation of the foregoing, the Policy
Provider may accept documents that appear on their face to be in order, without
responsibility for further investigation.
MISCELLANEOUS
Section
5.01 Amendments,
Etc.
This
Insurance Agreement may be amended, modified, supplemented or terminated
only by
written instrument or written instruments signed by
the
parties hereto; provided
that if
such amendment, modification, supplement or termination would have a material
adverse affect on the interests of the Subordination Agent, the Class G Trustee
or any Class G Certificateholder, Ratings Confirmation shall also be obtained
prior to such amendment, modification, supplement or termination being
effective. Continental agrees to provide a copy of any amendment to this
Insurance
Agreement
promptly to the Subordination Agent and any rating agency maintaining a rating
on the Class G Certificates. No act or course of dealing shall be deemed
to
constitute an amendment, modification, supplement or termination
hereof.
Section
5.02 Notices.
All
demands, notices and other communications to be given hereunder shall be
in
writing (except as otherwise specifically provided herein) and shall be mailed
by registered mail or personally delivered and telecopied to the recipient
as
follows:
(a) To
the
Policy Provider:
Financial
Guaranty Insurance Company
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
SF Surveillance
Facsimile: (000)
000-0000
Confirmation: (000)
000-0000
(in
each
case in which notice or other communication to the Policy Provider refers
to an
event of default under any Operative Document or a claim on the Policy shall
be
deemed to constitute consent or acceptance, then a copy of such notice or
other
communication should also be sent to the attention of the general counsel
of
each of Continental, the Subordination Agent and the Class G Trustee at its
respective address set forth below and, in all cases, both any original and
all
copies shall be marked to indicate “URGENT MATERIAL ENCLOSED.”)
(b) To
Continental:
Continental
Airlines, Inc.
0000
Xxxxx Xxxxxx
Xxxx.
XXX-XX
Xxxxxxx,
XX 00000
Attention:
Treasurer
Facsimile:
(000) 000-0000
(c) To
the
Subordination Agent or the Class G Trustee:
Wilmington
Trust Company
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
Attention:
Corporate Trust Administration
Facsimile:
(000) 000-0000
A
party
may specify an additional or different address or addresses by writing mailed
or
delivered to the other parties as aforesaid. All such notices and other
communications shall be effective upon receipt unless received after business
hours on any day, in which case on the opening of business
on
the next Business Day.
Section
5.03 Severability.
In the
event that any provision of this Insurance Agreement shall be held invalid
or
unenforceable by any court of competent jurisdiction, the parties hereto
agree
that such holding shall not invalidate or render unenforceable any other
provision hereof. The parties hereto further agree that the holding by any
court
of competent jurisdiction
that any remedy pursued by any party hereto is unavailable or unenforceable
shall not affect in any way the ability of such party to pursue any other
remedy
available to it.
Section
5.04 Governing
Law.
This
Insurance Agreement shall be governed by and construed in accordance with
the
laws of the State of New York, including all matters of construction, validity
and performance. This Insurance Agreement is being delivered in New
York.
Section
5.05 Consent
to Jurisdiction.
(a) The
parties hereto hereby irrevocably submit to the non-exclusive jurisdiction
of
the United States District Court for the Southern District of New York and
any
court of appropriate jurisdiction in the State of New York located in the
City
and County of New York, and any appellate court from any thereof, in any
action,
suit or proceeding brought against it or in connection with any of the Operative
Documents or the Transactions or for recognition or enforcement of any judgment,
and the parties hereto hereby irrevocably and unconditionally agree that
all
claims in respect of any such action or proceeding may be heard or determined
in
such New York state court or, to the extent permitted by law, in such federal
court. The parties hereto agree that a final unappealable judgment in any
such
action, suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law. To
the extent permitted by applicable law, the parties hereto hereby waive and
agree not to assert by way of motion, as a defense or otherwise in any such
suit, action or proceeding, any claim that it is not personally subject to
the
jurisdiction of such courts, that the suit, action or proceeding is brought
in
an inconvenient forum, that the venue of the suit, action or proceeding is
improper or that the related documents or the subject matter thereof may
not be
litigated in or by such courts.
(b) To
the
extent permitted by applicable law, the parties hereto shall not seek and
hereby
waive the right to any review of the judgment of any such court by any court
of
any other nation or jurisdiction which may be called upon to grant an
enforcement of such judgment.
(c) Service
on any party may be made by delivering, by U.S. registered mail, messenger
or
courier service, copies of the summons and complaint and other process which
may
be served in any suit, action or proceeding to such party addressed to its
street address shown in Section 5.02, Attention: General Counsel, and such
service shall be effective service of process for any litigation brought
against
such party in any court. Such address may be changed by such party by written
notice to the other parties hereto.
(d) Nothing
contained in this Insurance Agreement shall limit or affect any party’s right to
serve process in any other manner permitted by law or to start legal proceedings
relating to any of the Operative Documents against any other party or its
properties in the courts of any jurisdiction.
Section
5.06 Consent
of the Policy Provider.
No
disclosure relating to the Policy Provider contained in the Preliminary
Prospectus Supplement or the Final Prospectus Supplement, which disclosure
modifies, alters, changes, amends or supplements the disclosure relating
to the
Policy Provider provided by the Policy Provider for use therein, shall be
made
without the Policy Provider’s prior
written consent. In the event that the consent of the Policy Provider is
required under any of the Operative Documents, the determination whether
to
grant
or
withhold such consent shall be made by the Policy Provider in its
sole
discretion without any implied duty towards any other Person, except as
otherwise expressly provided therein.
Section
5.07 Counterparts.
This
Insurance Agreement may be executed in counterparts by the parties hereto,
and
all such counterparts shall constitute one and the same instrument.
Section
5.08 Headings.
The
headings of Articles and Sections and the Table of Contents contained in
this
Insurance Agreement are provided for convenience only. They form no part
of this
Insurance Agreement and shall not affect its construction or
interpretation.
Section
5.09 Trial
by Jury Waived.
Each
party hereby waives, to the fullest extent permitted by law, any right to
a
trial by jury in respect of any litigation arising directly or indirectly
out
of, under or in connection with this Insurance Agreement.
Each
party hereto (A) certifies that no representative, agent or attorney of any
party hereto has represented, expressly or otherwise, that it would not,
in the
event of litigation, seek to enforce the foregoing waiver and (B) acknowledges
that it has been induced to enter into the Operative Documents to which it
is a
party by, among other things, this waiver.
Section
5.10 Limited
Liability.
No
recourse under any Operative Document shall be had against, and no personal
liability shall attach to, any officer, employee, director, affiliate or
shareholder of any party hereto, as such, by the enforcement of any assessment
or by any legal or equitable proceeding, by virtue of any statute or otherwise
in respect
of any of the Operative Documents, the Certificates or the Policy, it being
expressly agreed and understood that
each
Operative Document is solely an obligation of each party hereto, and
that
any and all personal liability, either at common law or in equity, or by
statute
or constitution, of every such officer, employee, director, affiliate or
shareholder for breaches of any party hereto of any obligations under any
Operative Document is
hereby
expressly waived as a condition of and in consideration for the execution
and
delivery of this Insurance Agreement.
Section
5.11 Entire
Agreement.
This
Insurance Agreement, the Policy, the Policy Fee Letter and the other Operative
Documents set forth the entire agreement between the parties with respect
to the
subject matter hereof and thereof,
and supersede and replace any agreement or understanding that may have existed
between the parties prior to the date hereof in respect of such subject
matter.
Section
5.12 Independent
Agreements.
This
Insurance Agreement and the Policy are separate and independent agreements
and
nothing herein shall be construed to vary or otherwise modify any term of
the
Policy. No breach by any party hereto of any representation, warranty, covenant,
agreement or undertaking contained herein shall in any way affect the
obligations of the Policy Provider under the Policy.
Section
5.13 Successors
and Assigns.
This
Insurance Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted
assigns.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement, all as
of the
day and year first above mentioned.
|
FINANCIAL
GUARANTY INSURANCE
COMPANY,
as
Policy Provider
|
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|
By:
|
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|
Name:
|
|||
|
Title:
|
|||
|
WILMINGTON
TRUST COMPANY,
not
in its individual capacity but solely as
Subordination
Agent and Class G Trustee
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
CONTINENTAL
AIRLINES, INC.
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
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