TRUST SUPPLEMENT No. 2009-1A-S Dated as of July 1, 2009 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 2009-1A-S Pass...
TRUST
SUPPLEMENT No. 2009-1A-S
Dated as
of July 1, 2009
between
WILMINGTON
TRUST COMPANY
as
Trustee,
and
CONTINENTAL
AIRLINES, INC.
to
PASS
THROUGH TRUST AGREEMENT
Dated as
of September 25, 1997
$389,687,000
Continental
Airlines Pass Through Trust 2009-1A-S
9.000%
Continental Airlines
Pass
Through Certificates,
Series
2009-1A-S
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This Trust Supplement No. 2009-1A-S,
dated as of July 1, 2009 (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 currently owns 12 Boeing Aircraft (collectively, the “Owned Aircraft”) and
has obtained commitments from Boeing for the delivery of five additional
Aircraft (collectively, the “New Aircraft”,
together with the Owned Aircraft, the “Applicable
Aircraft”);
WHEREAS,
as of the Transfer Date (as defined below), the Company will have financed (i)
each Owned Aircraft after the existing security interest on such Owned Aircraft
has been discharged and (ii) a portion of the purchase price of the New
Aircraft;
WHEREAS, as of the Transfer Date, with
respect to each Applicable Aircraft, the Company will have issued pursuant to an
Indenture, on a recourse basis, Equipment Notes (i) in the case of each Owned
Aircraft, to finance such Owned Aircraft after the existing security interest on
such Owned Aircraft has been discharged, and (ii) in the case of each New
Aircraft, to finance a portion of the purchase price of such New
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 2009-1A-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 2009-1A-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 January 8 and July 8 of each year, commencing on January 8, 2010, 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 Aircraft:
Has the meaning specified in the recitals hereto.
Applicable
Certificate: Means any of the “Applicable Certificates” issued
by the Related Trust and that are “Outstanding” (as defined in the Related Pass
Through Trust Agreement) as of the Transfer Date (the “Transfer Date
Certificates”) and any Certificate issued in exchange therefor or
replacement thereof pursuant to the Agreement.
Applicable
Certificateholder: Means the Person in whose name an
Applicable Certificate is registered on the Register for the Applicable
Certificates.
Applicable
Trust: Has the meaning specified in the recitals
hereto.
Assignment and Assumption
Agreement: Means the assignment and assumption agreement
substantially in the form of Exhibit C to the Related Pass Through Trust
Supplement executed and delivered in accordance with Section 7.01 of the Related
Pass Through Trust Supplement.
Basic
Agreement: Has the meaning specified in the first paragraph of
this Trust Supplement.
Boeing: Means
The Boeing Company.
Business
Day: Means any day other than a Saturday, a Sunday or a day on
which commercial banks are required or authorized to close in 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: Has
the meaning specified in the Intercreditor Agreement.
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.
Closing
Notice: Has the meaning specified in the NPA.
Company: Has
the meaning specified in the first paragraph of this Trust
Supplement.
Continental Bankruptcy
Event: Has the meaning specified in the 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 Period Termination
Date: Has the meaning specified in the Related Pass Through
Trust Supplement.
Deposit
Agreement: Means the Deposit Agreement dated as of July 1,
2009 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
The Bank of New York Mellon, a bank chartered under the laws of the State of New
York.
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 July 1, 2009 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 January 8, 2018.
Final
Withdrawal: Has the meaning specified in the Escrow
Agreement.
Final Withdrawal
Date: Has the meaning specified in the Escrow
Agreement.
Indenture: Means
each of the separate trust indentures and mortgages relating to the Aircraft,
each as specified or described in a Closing 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 July
1, 2009 among the Related Trustee (and after the Transfer Date, the
Trustee), the Liquidity Provider 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 July 1, 2009 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, Xxxxxxx Sachs Bank USA, a
corporation organized under the Banking Law of the State of New York, and any
replacements or successors therefor appointed in accordance with the
Intercreditor Agreement.
New
Aircraft: Has the meaning specified in the recitals of this
Trust Supplement.
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 July 1, 2009 among the Related Trustee
(and after the Transfer Date, the Trustee), 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
Agreement: Means the Basic Agreement as supplemented by a
Trust Supplement relating to the Additional Trust, if any.
Outstanding: When
used with respect to Applicable Certificates, means, as of the date of
determination, all Transfer Date Certificates, and all other Applicable
Certificates theretofore authenticated and delivered under the Agreement, in
each case except:
(i) Applicable
Certificates theretofore canceled by the Registrar or delivered to the Trustee
or the Registrar for cancellation;
(ii) Applicable
Certificates for which money in the full amount required to make the final
distribution with respect to such Applicable Certificates pursuant to Section
11.01 of the Basic Agreement has been theretofore deposited with the Trustee in
trust for the Applicable Certificateholders as provided in Section 4.01 of the
Basic Agreement pending distribution of such money to such Applicable
Certificateholders pursuant to payment of such final distribution;
and
(iii) Applicable
Certificates in exchange for or in lieu of which other Applicable Certificates
have been authenticated and delivered pursuant to the
Agreement.
Owned
Aircraft: Has the meaning specified in the recitals
hereto.
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 connection
therewith. The Pool Balance as of any date shall be computed after
giving effect to any special distribution with respect to unused Deposits,
payment of principal of the 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 June
16, 2009 relating to the offering of the Applicable Certificates.
Ratings
Confirmation: Has the meaning specified in the Intercreditor
Agreement.
Related Pass Through Trust
Agreement: Means the Basic Agreement as supplemented by the
Trust Supplement No. 2009-1A-O dated as of the date hereof (the “Related Pass Through Trust
Supplement”), relating to the Continental Airlines Pass Through Trust
2009-1A-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 2009-1A-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, Xxxxxxx, Sachs & Co.
and Calyon Securities (USA) Inc.
Underwriting
Agreement: Means the Underwriting Agreement dated June 16,
2009 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-30 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-30 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 with respect to a Special Payment mailed by the
Trustee shall set forth:
(i) the
Special Distribution Date and the Record Date therefor (except as otherwise
provided in Section 7.01 of this Trust Supplement),
(ii) the
amount of the Special Payment for each $1,000 face amount Applicable Certificate
and the amount thereof constituting principal, premium, 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, if any Additional Certificates are issued pursuant to
the Additional Trust, each Additional 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 Additional 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 Additional Certificateholder
(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 pro rata based on the Fractional Undivided
Interest in the Additional Trust held by each such Additional Certificateholder
and (B) if prior to the end of such 15-day period any other Additional
Certificateholder 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 pursuant to this Section
4.01(a).
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 all of the Applicable Certificates pursuant to
the terms of the Agreement and the Other Agreement. 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 Additional
Certificateholder(s) 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” and “Additional 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 Applicable Trust and Trust Property. By acceptance
of its Applicable Certificate, each Applicable Certificateholder consents to and
ratifies such assignment, transfer and delivery of the trust property of the
Related Trust to the Trustee upon the execution and delivery of the Assignment
and Assumption Agreement. The provisions of this Section 5.01(a)
supersede and replace the provisions of Section 2.02 of the Basic Agreement with
respect to the Applicable Trust, and all provisions of the Basic Agreement
relating to Postponed Notes or Section 2.02 of the Basic Agreement shall not
apply to the Applicable Trust.
(b) The
Trustee, upon the execution and delivery of the Assignment and Assumption
Agreement, acknowledges its acceptance of all right, title and interest in and
to the Trust Property and declares that the Trustee holds and will hold such
right, title and interest for the benefit of all then present and future
Applicable Certificateholders, upon the trusts herein and in the Basic Agreement
set forth. By the acceptance of each Applicable Certificate issued to
it under the Related Pass Through Trust Agreement and deemed issued under the
Agreement, each Holder of any such Applicable Certificate as grantor of the
Applicable Trust thereby joins in the creation and declaration of the Applicable
Trust. The provisions of this Section 5.01(b) supersede and replace
the provisions of Section 2.03 of the Basic Agreement, with respect to the
Applicable Trust.
Section 5.02. [Intentionally
Omitted]
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” and (ii) enter into one
or more agreements supplemental to the Agreement, the Intercreditor Agreement or
the NPA to provide for the formation of a single Additional Trust, the issuance
of Additional Certificates, the purchase by the Additional Trust (if any) 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.
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 Additional Trust. 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 the Additional Trust, if any, 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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Name:
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Title:
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