TRUST SUPPLEMENT No. 2006-1G Dated as of June 9, 2006 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 2006-1G LIBOR +...
TRUST
SUPPLEMENT No. 2006-1G
Dated
as
of June 9, 2006
between
WILMINGTON
TRUST COMPANY
as
Trustee,
and
CONTINENTAL
AIRLINES, INC.
to
PASS
THROUGH TRUST AGREEMENT
Dated
as
of September 25, 1997
$190,000,000
Continental
Airlines Pass Through Trust 2006-1G
LIBOR
+
0.350%
Continental
Airlines
Pass
Through Certificates,
Series 2006-1G
Page
i
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ARTICLE
VIII MISCELLANEOUS PROVISIONS
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18
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Section 8.01.
Basic Agreement Ratified
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18
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Section 8.02.
GOVERNING
LAW
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19
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Section 8.03.
Execution in Counterparts
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19
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Section 8.04.
Intention of Parties
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19
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Exhibit A Form
of Certification
Exhibit B DTC
Letter of Representation
This
Trust Supplement No. 2006-1G, dated as of June 9, 2006 (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 intends to issue pursuant to the Indenture, on a recourse basis,
up
to (and including) two series of equipment notes (the “Equipment
Notes”)
to be
secured by, among other things, certain aircraft spare parts owned by the
Company;
WHEREAS,
the Trustee hereby declares the creation of the Continental Airlines Pass
Through Trust 2006-1G (the “Applicable
Trust”)
for
the benefit of the Applicable Certificateholders, and the initial Applicable
Certificateholders as the grantors of the Applicable Trust, by their respective
acceptances of the Applicable Certificates, join in the creation of the
Applicable Trust with the Trustee;
WHEREAS,
all Certificates to be issued by the Applicable Trust will evidence fractional
undivided interests in the Applicable Trust and will convey no rights, benefits
or interests in respect of any property other than the Trust
Property;
WHEREAS,
pursuant to the terms and conditions of the Basic Agreement as supplemented
by
this Trust Supplement (the “Agreement”)
and
the NPA (as defined below), the Trustee on behalf of the Applicable Trust,
using
the proceeds of the sale of the Applicable Certificates, shall purchase an
Equipment Note having the same interest rate as, and final maturity date not
later than the final Regular Distribution Date of, the Applicable Certificates
issued hereunder and shall hold such Equipment Note in trust for the benefit
of
the Applicable Certificateholders;
WHEREAS,
all of the conditions and requirements necessary to make this Trust Supplement,
when duly executed and delivered, a valid, binding and legal instrument in
accordance with its terms and for the purposes herein expressed, have been
done,
performed and fulfilled, and the execution and delivery of this Trust Supplement
in the form and with the terms hereof have been in all respects duly
authorized;
WHEREAS,
this Trust Supplement is subject to the provisions of the Trust Indenture Act
of
1939, as amended, and shall, to the extent applicable, be governed by such
provisions.
NOW
THEREFORE, in consideration of the premises herein, it is agreed between the
Company and the Trustee as follows:
CREATION
OF THE APPLICABLE CERTIFICATES
Section 1.01.
The
Applicable Certificates.
There
is hereby created a series of Certificates to be issued under the Agreement
to
be distinguished and known as “Continental Airlines Pass Through Certificates,
Series 2006-1G” (hereinafter defined as the “Applicable
Certificates”).
Each
Applicable Certificate represents a fractional undivided interest in the
Applicable Trust created hereby. The Applicable Certificates shall be the only
instruments evidencing a fractional undivided interest in the Applicable
Trust.
The
terms
and conditions applicable to the Applicable Certificates are as
follows:
(a) The
aggregate principal amount of the Applicable Certificates that shall be
authenticated under the Agreement (except for Applicable Certificates
authenticated and delivered pursuant to Sections 3.03, 3.04, 3.05 and 3.06
of the Basic Agreement) is $190,000,000.
(b) The
Regular Distribution Dates with respect to any payment of Scheduled Payments
means March 2, June 2, September 2 and December 2 of each year, commencing
on
September 2, 2006 (or, if any such date is not a Business Day, the next
succeeding Business Day), 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) (i)
The
Applicable Certificates shall be in the form attached hereto as Exhibit A.
Any Person acquiring or accepting an Applicable Certificate or an interest
therein will, by such acquisition or acceptance, be deemed to represent and
warrant to and for the benefit of the Company that either (i) the assets of
an employee benefit plan subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”),
or of
a plan subject to Section 4975 of the Internal Revenue Code of 1986, as
amended (the “Code”),
have
not been used to purchase Applicable Certificates or an interest therein or
(ii) the purchase and holding of Applicable Certificates or an interest
therein is exempt from the prohibited transaction restrictions of ERISA and
the
Code pursuant to one or more prohibited transaction statutory or administrative
exemptions.
(ii) The
Applicable Certificates shall be Book-Entry Certificates and shall be subject
to
the conditions set forth in the Letter of Representations between the Company
and the Clearing Agency attached hereto as Exhibit B.
(e) The
“NPA”
as defined in this Trust Supplement is the “Note Purchase Agreement” referred to
in the Basic Agreement.
(f) The
Applicable Certificates are subject to the Intercreditor Agreement.
(g) The
Applicable Certificates are entitled to the benefits of the Primary Liquidity
Facility, the Above-Cap Liquidity Facility and the Policy.
(h) The
Responsible Party is the Company.
(i) 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.
(j) The
“particular sections of the Note Purchase Agreement”, for purposes of
clause (3) of Section 7.07 of the Basic Agreement, is Section 8.1
of the NPA.
(k) The
Equipment Note to be acquired and held in the Applicable Trust, and the related
Pledged Spare Parts and Note Documents are described in the NPA.
(l) For
purposes of Section 2.01(b)(4) of the Basic Agreement, there shall be no
Cut-off Date with respect to the Applicable Certificates.
(m) For
purposes of the second paragraph of Section 11.01 of the Basic Agreement,
the notice of any termination of the Applicable Trust shall be mailed promptly
by the Trustee to the Applicable Certificateholders not earlier than 60 days
and
not later than 15 days preceding the final distribution referenced in such
Section.
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):
Above-Cap
Account:
Has the
meaning specified in the Intercreditor Agreement.
Above-Cap
Liquidity Facility:
Means,
initially, the ISDA Master Agreement, dated as of June 9, 2006, between the
Subordination Agent, as agent and trustee for the Applicable Trust, and the
Above-Cap Liquidity Provider, together with the Schedule and Confirmation
attached thereto, relating to the Applicable Certificates, and, from and after
the replacement of such ISDA Master Agreement pursuant thereto, the replacement
above-cap liquidity facility therefor, if any, in each case, as amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
Above-Cap
Liquidity Provider:
Means,
initially, Xxxxxx Xxxxxxx Capital Services Inc., a corporation organized under
the laws of the state of Delaware, and any replacements or successors therefor
appointed in accordance with the Intercreditor Agreement.
Agreement:
Has the
meaning specified in the recitals hereto.
Applicable
Certificate:
Has the
meaning specified in Section 1.01 of this Trust Supplement.
Applicable
Certificateholder:
Means
the Person in whose name an Applicable Certificate is registered on the Register
for the Applicable Certificates.
Applicable
Trust:
Has the
meaning specified in the recitals hereto.
Basic
Agreement:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Break
Amount:
Has the
meaning specified in the Indenture.
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 the Loan Trustee maintains its Corporate
Trust Office or receives and disburses funds and which is also a day for trading
by and between banks in the London interbank Eurodollar markets.
Certain
Excess Reimbursement Obligations:
Means
any amounts referred to in clause (c) of the definition of “Excess Reimbursement
Obligations” in the Intercreditor Agreement.
Certificate:
Has the
meaning specified in the Intercreditor Agreement.
Class:
Has the
meaning specified in the Intercreditor Agreement.
Class B
Purchasers:
Has the
meaning specified in Section 5.01(a) of this Trust Supplement
Collateral:
Has the
meaning specified in the Indenture.
Company:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Controlling
Party:
Has the
meaning specified in the Intercreditor Agreement.
Distribution
Date:
Means
any Regular Distribution Date or Special Distribution Date as the context
requires.
Equipment
Notes:
Has the
meaning specified in the recitals hereto.
Final
Maturity Date:
June 2,
2015.
Indenture:
Means
the Trust Indenture and Mortgage dated as of June 9, 2006 between the Company
and the Loan Trustee, as amended, supplemented or otherwise modified from time
to time in accordance with its terms.
Intercreditor
Agreement:
Means
the Intercreditor Agreement (2006-1) dated as of June 9, 2006 among the Trustee,
the Other Trustee, the Above-Cap Liquidity Provider, the Primary Liquidity
Provider, the Policy 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 Underwriter, together with all subsequent beneficial owners of the
Applicable Certificates.
Issuance
Date:
Means
the date of the issuance of the Applicable Certificates to the Underwriter
pursuant to the Underwriting Agreement.
Liquidity
Obligations:
Has the
meaning assigned to such term in the Intercreditor Agreement.
Non-Participating
Certificateholders:
Has the
meaning specified in Section 5.01(a) of this Trust Supplement.
Non-Participating
Class G Certificateholders:
Has the
meaning specified in Section 5.01(b) of this Trust Supplement.
Note
Documents:
Means
the Equipment Notes with respect to the Applicable Certificates, the Indenture
and the NPA.
NPA:
Means
the Note Purchase Agreement dated as of June 9, 2006 among the Trustee, the
Other Trustee, the Company, the Loan Trustee and the Subordination Agent,
providing for, among other things, the purchase of the applicable Equipment
Note
by the Trustee on behalf of the Applicable Trust, as the same may be amended,
supplemented or otherwise modified from time to time, in accordance with its
terms.
Operative
Agreements:
Has the
meaning assigned to such term in the Intercreditor Agreement.
Other
Agreement:
Means the Basic Agreement as supplemented by Trust Supplement No. 2006-1B
dated the date hereof relating to the Other Trust.
Other
Trust:
Means
the Continental Airlines Pass Through Trust 2006-1B, created by the Other
Agreement.
Other
Trustee:
Means
the trustee under the Other Agreement, and any successor or other trustee
appointed as provided therein.
Participating
Certificateholders:
Has the
meaning specified in Section 5.01(a) of this Trust Supplement.
Participating
Class G Certificateholders:
Has the
meaning specified in Section 5.01(b) of this Trust Supplement.
Pledged
Spare Parts:
Has the
meaning assigned to such term in the Indenture.
Policy:
Has the
meaning specified in the Intercreditor Agreement.
Policy
Fee Letter:
Has the
meaning specified in the Intercreditor Agreement.
Policy
Provider:
Has the
meaning specified in the Intercreditor Agreement.
Policy
Provider Agreement:
Has the
meaning specified in the Intercreditor Agreement.
Policy
Provider Amounts:
Has the
meaning specified in the Intercreditor Agreement.
Policy
Provider Default:
Has the
meaning specified in the Intercreditor Agreement.
Policy
Provider Obligations:
Has the
meaning assigned to such term in the Intercreditor Agreement.
Pool
Balance:
Means,
as of any date, (i) the original aggregate face amount of the Applicable
Certificates less (ii) the aggregate amount of all payments made as of such
date in respect of such Applicable Certificates other than payments made in
respect of interest or Premium or Break Amount 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 payment of principal of the
Equipment Notes, payments under the Policy (other than in respect of interest
on
the Applicable Certificates) or payment with respect to other Trust Property
and
the distribution thereof to be made on that date.
Pool
Factor:
Means,
as of any date, the quotient (rounded to the seventh decimal place) computed
by
dividing (i) the Pool Balance by (ii) the original aggregate face
amount of the Applicable Certificates. The Pool Factor as of any date shall
be
computed after giving effect to any payment of principal of the Equipment Notes,
payment under
the
Policy (other than in respect of interest on the Applicable Certificates) or
payment with respect to other Trust Property and the distribution thereof to
be
made on that date.
Premium:
Has the
meaning specified in the Indenture.
Primary
Liquidity Facility:
Means,
initially, the Revolving Credit Agreement dated as of June 9, 2006 between
Wilmington Trust Company, as Subordination Agent, as agent and trustee for
the
Applicable Trust, and the initial Primary Liquidity Provider, and from and
after
the replacement of such Revolving Credit Agreement pursuant to the Intercreditor
Agreement, the replacement liquidity facility therefor, if any, in each case
as
amended, supplemented or otherwise modified from time to time in accordance
with
its terms.
Primary
Liquidity Provider:
Means,
initially, Xxxxxx Xxxxxxx Bank, an industrial bank organized under the laws
of
the state of Utah, and any replacements or successors therefor appointed in
accordance with the Intercreditor Agreement.
PTC
Event of Default:
Has the
meaning assigned to such term in the Intercreditor Agreement.
Reference
Agency Agreement:
Has the
meaning specified in the NPA.
Scheduled
Payment:
Has the
meaning assigned to such term in the Intercreditor Agreement.
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 the Indenture).
Stated
Interest Rate:
Has the
meaning specified in the Intercreditor Agreement as such meaning is applicable
to the 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 Note held as the
property of the Applicable Trust, all monies at any time paid thereon and all
monies due and to become due thereunder, (ii) funds from time to time
deposited in the Certificate Account and the Special Payments Account and,
subject to the Intercreditor Agreement, any proceeds from the sale by the
Trustee pursuant to Article VI of the Basic Agreement of the Equipment Note
and
(iii) all rights of the Applicable Trust and the Trustee, on behalf of the
Applicable Trust, under the Intercreditor Agreement, the NPA, the Above-Cap
Liquidity Facility, the Primary Liquidity Facility and the Policy, 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,
the NPA, the Above-Cap Liquidity Facility, the Primary Liquidity Facility or
the
Policy.
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.
Underwriter:
Means
Xxxxxx Xxxxxxx & Co. Incorporated.
Underwriting
Agreement:
Means
the Underwriting Agreement dated as of May 24, 2006 between the Underwriter
and
the Company, as the same may be amended, supplemented or otherwise modified
from
time to time in accordance with its terms.
[INTENTIONALLY
OMITTED]
STATEMENTS
TO APPLICABLE CERTIFICATEHOLDERS
Section 4.01.
[Reserved].
Section 4.02.
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. Such statement shall set forth (per $1,000 face amount Applicable
Certificate as to (ii) and (iii) below) the following information:
(i) the
aggregate amount of funds distributed on such Distribution Date under the
Agreement, indicating the amount allocable to each source, including any portion
thereof withdrawn from the Above-Cap Account or paid by the Primary Liquidity
Provider or the Policy Provider;
(ii) the
amount of such distribution under the Agreement allocable to principal and
the
amount allocable to Premium and Break Amount, if any;
(iii) the
amount of such distribution under the Agreement allocable to
interest;
(iv) the
Pool
Balance and the Pool Factor; and
(v) the
LIBOR
rates and the resulting Stated Interest Rate on the Applicable Certificates
for
the current and immediately preceding Interest Periods.
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 from such Clearing Agency a securities position listing
setting forth the names of all Clearing Agency Participants reflected on such
Clearing Agency’s books as holding interests in the Applicable Certificates on
such Record Date. On each Distribution Date, the Trustee will mail to each
such
Clearing Agency Participant the statement described above and will make
available additional copies as requested by such Clearing Agency Participant
for
forwarding to holders of interests in the Applicable Certificates.
(b) Within
a
reasonable period of time after the end of each calendar year but not later
than
the latest date permitted by law, the Trustee shall furnish to each Person
who
at any time during such calendar year was an Applicable Certificateholder of
record a statement containing the sum of the amounts determined pursuant to
clauses (a)(i), (a)(ii) and (a)(iii) 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 calendar 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 4.02(a) of this Trust Supplement.
(c) Promptly
following 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, the Trustee 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,
(y) the related Pool Factors for such Regular Distribution Dates and
(z) the expected principal distribution schedule of the Equipment Note held
as Trust Property at the date of such notice. The Trustee will mail to each
such
Clearing Agency Participant the statement described above and will make
available additional copies as requested by such Clearing Agency Participant
for
forwarding to holders of interests in the Applicable Certificates.
(d) This
Section 4.02 supersedes and replaces Section 4.03 of the Basic
Agreement, with respect to the Applicable Trust.
Section 4.03.
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 Note held (subject to the Intercreditor Agreement) in the
Applicable Trust or realized upon the sale of such Equipment Note, the Trustee
shall distribute out of the Special Payments Account the entire amount of such
Special Payment deposited therein pursuant to Section 4.01(b) of the Basic
Agreement. 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 11.01 of the Basic Agreement 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 the Equipment
Note 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 distribution pursuant
to
Section 3.6(c) or Section 3.6(e) of the Intercreditor Agreement, the
Trustee will mail notice to the Applicable Certificateholders not less than
15
days prior to the Special Distribution Date determined for such distribution.
In
the case of any other Special Payments, such notice shall be mailed as soon
as
practicable after the Trustee has confirmed that it has received funds for
such
Special Payment, stating the Special Distribution Date for such Special Payment
which shall occur not less than 15 days after the date of such notice and as
soon as practicable thereafter. Notices mailed by the Trustee shall set
forth:
(i) the
Special Distribution Date and the Record Date therefor (except as otherwise
provided in Section 11.01 of the Basic Agreement),
(ii) the
amount of the Special Payment for each $1,000 face amount Applicable Certificate
and the amount thereof constituting principal, Premium or Break Amount, 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 or Break Amount, if any, payable upon the redemption or
purchase of the 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
or
Break Amount received will also be distributed.
If
any
redemption of the Equipment Note held in the Applicable 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.
(c) This
Section 4.03 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 4.04.
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 Above-Cap Liquidity Provider, the Primary Liquidity Provider
or the Policy Provider”.
DEFAULT
Section 5.01.
Purchase
Rights of Certificateholders; Election to Terminate Policy.
(a) By
acceptance of its Applicable Certificate, each Applicable Certificateholder
agrees that at any time after the occurrence and during the continuation of
a
Triggering Event, each Class B Certificateholder (other
than the Company or any of its Affiliates)
shall
have the right to purchase all, but not less than all, of the Applicable
Certificates upon ten days’ written notice to the Trustee and each other
Class B Certificateholder, provided
that
(i) if prior to the end of such ten-day period any other Class B
Certificateholder (other than the Company or any of its Affiliates) notifies
such purchasing Class B Certificateholder that such other Class B
Certificateholder (other than the Company or any of its Affiliates) wants to
participate in such purchase, then such other Class B Certificateholder may
join with the purchasing Class B Certificateholder (any such purchasing
Class B Certificateholders shall be collectively referred to herein as the
“Class B
Purchasers”)
to
purchase all, but not less than all, of the Applicable Certificates based on
the
ratio of the Fractional Undivided Interest in the Class B Trust held by
each such Class B Purchaser to the Fractional Undivided Interests in the
Class B Trust held by all of the Class B Purchasers and (ii) if
prior to the end of such ten-day period any other Class B Certificateholder
fails to notify the Class B Purchasers of such other Class B
Certificateholder’s desire to participate in such a purchase, then such other
Class B Certificateholder shall lose its right to purchase the Applicable
Certificates pursuant to this Section 5.01(a). In addition, following the
exercise by the Class B Purchasers of their right to purchase the
Applicable Certificates, the Applicable Certificateholders shall have the right
to elect upon 20 days’ written notice to the Trustee, the Policy Provider and
each other Applicable Certificateholder to surrender the Policy to the Policy
Provider for cancellation (thereby releasing the Policy Provider from its
obligations under the Policy) and to pay (or cause to be paid) both of the
following: (i) to the Policy Provider, to the extent not paid otherwise, all
Policy Provider Amounts (other than Certain Excess Reimbursement Obligations)
and (ii) to the Primary Liquidity Provider all outstanding Liquidity
Obligations. If any of the Applicable Certificateholders (the “Non-Participating
Certificateholders”)
fails
to elect to surrender the Policy and make such payments or fails to notify
the
Applicable Certificateholders making such election (together with any Applicable
Certificateholders joining in such election, the “Participating
Certificateholders”)
prior
to the end of such 20-day period of their intention to join with the
Participating Certificateholders in surrendering the Policy to the Policy
Provider for cancellation (thereby releasing the Policy Provider from its
obligations under the Policy) and making such payments, the Participating
Certificateholders shall have the right to purchase all, but not less than
all,
of the Applicable Certificates held by the Non-Participating Certificateholders,
pro rata based on the ratio of the Fractional Undivided Interest in the
Applicable Trust held by each such Participating Certificateholder to the
Fractional Undivided Interests in the Applicable Trust held by all Participating
Certificateholders and, following the consummation of such purchase, to make
the
election to surrender the Policy and make such payments (it
being
understood and agreed that the Policy may be surrendered if and only if the
Participating Certificateholders hold
all,
but
not less than all of the Applicable Certificates, and unanimously elect to
so
surrender the Policy and make such payments, in each case, whether initially
or
following the purchase of Applicable Certificates from Non-Participating
Certificateholders).
Payment
of the purchase price of all the Applicable Certificates held by
Non-Participating Certificateholders and the payment of all Policy Provider
Amounts (other than Certain Excess Reimbursement Obligations) and Liquidity
Obligations shall, in each case, be made by the Participating Certificateholders
based on the ratio of the Fractional Undivided Interest in the Applicable Trust
held by each such Participating Certificateholder to the Fractional Undivided
Interests in the Applicable Trust held by all Participating Certificateholders.
Following all such payments, the Trustee shall be subrogated to the rights
of
the Policy Provider and the Primary Liquidity Provider under the Operative
Agreements and the Trustee shall direct the Subordination Agent to surrender
(or
cause the surrender of) the Policy to the Policy Provider for cancellation
(thereby releasing the Policy Provider from its obligations under the Policy).
Upon such surrender and payments, the Primary Liquidity Facility shall be
terminated in accordance therewith. Following any such surrender of the Policy
to the Policy Provider for cancellation and payment of the Policy Provider
Amounts (other than Certain Excess Reimbursement Obligations) and the Liquidity
Obligations, the Applicable Certificates shall no longer be entitled to the
benefits of the Policy or the Primary Liquidity Facility.
(b) By
acceptance of its Applicable Certificate, each Applicable Certificateholder
agrees that, in the event that (i) none of the Class B Certificateholders has
elected to exercise its right to purchase pursuant to clause (a) above or (ii)
any Class B Certificateholder has so elected to exercise such right, but has
not
exercised its right to surrender the Policy pursuant to clause (a) above, the
Policy Provider, if it is then the Controlling Party and no Policy Provider
Default shall have occurred and be continuing and 120 days have elapsed since
the occurrence of a Triggering Event that is continuing, shall have the right
to
purchase all, but not less than all, of the Applicable Certificates upon 20
days’ written notice to the Trustee, the Other Trustee and the Applicable
Certificateholders; provided, that upon receipt of any such purchase notice,
the
Applicable Certificateholders shall have the right to elect upon written notice
to the Trustee, the Policy Provider and all of the other Applicable
Certificateholders given prior to the end of such 20-day period to surrender
the
Policy to the Policy Provider for cancellation (thereby releasing the Policy
Provider from its obligations under the Policy) and to pay (or cause to be
paid)
both of the following: (i) to the Policy Provider, to the extent not paid
otherwise, all Policy Provider Amounts (other than Certain Excess Reimbursement
Obligations) and (ii) to the Primary Liquidity Provider all outstanding
Liquidity Obligations. If any of the Applicable Certificateholders (the
“Non-Participating
Class G Certificateholders”)
fails
to make such election or fails to notify the Applicable Certificateholders
making such election (together with any Applicable Certificateholders joining
in
such election, the “Participating
Class G Certificateholders”)
prior
to the end of such 20-day period of its intention to join with such
Participating Class G Certificateholders in surrendering the Policy and making
such payments, the Participating Class G Certificateholders shall have the
right
to purchase all, but not less than all, of the Applicable Certificates held
by
such Non-Participating Class G Certificateholders, pro rata based on the ratio
of the Fractional Undivided Interest in the Applicable Trust held by each such
Participating Class G Certificateholder to the total Fractional Undivided
Interests in the Applicable Trust held by all Participating Class G
Certificateholders, and, following the consummation of such purchase, to make
the election to surrender the Policy in the manner provided in the immediately
preceding sentence and make such payments (it being understood
and
agreed that the Policy may only be surrendered if and only if the Participating
Class G Certificateholders hold all, but not less than all of the Applicable
Certificates whether initially or following the purchase of Applicable
Certificates, and unanimously elect to so surrender the Policy and make such
payments, in each case, whether initially or following the purchase of the
Applicable Certificates from Non-Participating Class G Certificateholders from
Non-Participating Class G Certificateholders). Payment of the purchase price
of
all Applicable Certificates held by Non-Participating Class G Certificateholders
and the payment of the Policy Provider Amounts (other than Certain Excess
Reimbursement Obligations) and Liquidity Obligations shall, in each case, be
made by the Participating Class G Certificateholders based on the ratio of
the
Fractional Undivided Interest in the Applicable Trust held by each such
Participating Class G Certificateholder to the total Fractional Undivided
Interests in the Applicable Trust held by all Participating Class G
Certificateholders. Following all such payments, the Trustee shall direct the
Subordination Agent to surrender or cause the surrender of the Policy to the
Policy Provider for cancellation (thereby releasing the Policy Provider from
its
obligations under the Policy). Upon such surrender and payments, the Primary
Liquidity Facility shall be terminated in accordance therewith. Following any
such surrender of the Policy to the Policy Provider for cancellation and payment
of the Policy Provider Amounts (other than Certain Excess Reimbursement
Obligations) and the Liquidity Obligations, the Applicable Certificates shall
no
longer be entitled to the benefits of the Policy or the Primary Liquidity
Facility.
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 or Break Amount,
but including any other amounts then due and payable to the Applicable
Certificateholders under the Agreement, the Intercreditor Agreement or any
Note
Document or on or in respect of the Applicable Certificates; provided,
however,
that no
such purchase of Applicable Certificates shall be effective unless the
purchaser(s) shall certify to the Trustee that contemporaneously with such
purchase, such purchaser(s) is (are) purchasing, pursuant to the terms of the
Agreement and, in the case of any purchase of the Applicable Certificates
pursuant to clause (a) of this Section 5.01 and the Other Agreement,
all of the Applicable Certificates. 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 5.01. Each Applicable
Certificateholder agrees by its acceptance of its Applicable Certificate that
(at any time after the occurrence and during the continuation of a Triggering
Event) it will, upon payment from such Class B Purchasers, Participating
Class G Certificateholders or the Policy Provider, as the case may be, of the
purchase price set forth in the first sentence of this paragraph,
(i) forthwith sell, assign, transfer and convey to the purchaser(s) thereof
(without recourse, representation or warranty of any kind except for its own
acts), all of the right, title, interest and obligation of such Applicable
Certificateholder in the Agreement, the Intercreditor Agreement, the Above-Cap
Liquidity Facility, the Primary Liquidity Facility, the Policy, the Note
Documents and all Applicable Certificates 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
Intercreditor Agreement, the Above-Cap Liquidity Facility, the Primary Liquidity
Facility, the Policy, the Note Documents and all such Applicable Certificates)
and (ii) 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 5.01 and elsewhere in this Trust Supplement, the terms
“Class B Certificateholder”, “Class B Trust” and “Class B
Trustee” shall have the respective meanings assigned to such terms in the
Intercreditor Agreement.
(c) By
their
acceptance of the Applicable Certificates, the Applicable Certificateholders
hereby agree that the surrender of the Policy to the Policy Provider for
cancellation as contemplated in clauses (a) and (b) of this Section 5.01 shall
(i) constitute an acknowledgment that the Applicable Certificates are no longer
entitled to the benefits of Section 3.6 of the Intercreditor Agreement and
(ii)
without any further action by such Applicable Certificateholder, have the
immediate effect of releasing the Policy Provider from its obligations under
the
Policy.
(d) This
Section 5.01 supersedes and replaces Section 6.01(b) of the Basic
Agreement, with respect to the Applicable Trust.
Section 5.02.
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 6.01.
Delivery
of Documents; Delivery Dates.
(a) The Trustee is hereby directed (i) to execute and deliver
the Intercreditor Agreement and the NPA on or prior to the Issuance Date, each
in the form delivered to the Trustee by the Company, and (ii) subject to
the respective terms thereof, to perform its obligations thereunder. Upon
request of the Company and the satisfaction or waiver of the closing conditions
specified in the Underwriting Agreement, the Trustee shall execute, deliver,
authenticate, issue and sell Applicable Certificates in authorized denominations
equaling in the aggregate the amount set forth, with respect to the Applicable
Trust, in Schedule I to the Underwriting Agreement evidencing the entire
ownership interest in the Applicable Trust, which amount equals the maximum
aggregate principal amount of Equipment Notes which may be purchased by the
Trustee pursuant to the NPA. Except as provided in Sections 3.03, 3.04,
3.05 and 3.06 of the Basic Agreement, the Trustee shall not
execute,
authenticate or deliver Applicable Certificates in excess of the aggregate
amount specified in this paragraph. The provisions of this Section 6.01(a)
supersede and replace the first sentence of Section 3.02(a) of the Basic
Agreement, with respect to the Applicable Trust.
(b) All
provisions of the Basic Agreement relating to Postponed Notes and
Section 2.02 of the Basic Agreement shall not apply to the Applicable
Trust.
(c) The
Trustee acknowledges its acceptance of all right, title and interest in and
to
the Trust Property to be acquired pursuant to the NPA, and declares that it
holds and will hold such right, title and interest for the benefit of all
present and future Applicable Certificateholders, upon the trusts set forth
in
the Agreement. By its acceptance of an Applicable Certificate, each initial
Applicable Certificateholder, as a grantor of the Applicable Trust, joins with
the Trustee in the creation of the Applicable Trust. The provisions of this
Section 6.01(c) supersede and replace the provisions of Section 2.03
of the Basic Agreement, with respect to the Applicable Trust.
Section 6.02.
The
Trustee.
(a) Subject to Section 6.03 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 or the NPA 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 and the
NPA
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 6.03.
Representations
and Warranties of the Trustee.
The
Trustee hereby represents and warrants that:
(a) the
Trustee has full power, authority and legal right to execute, deliver and
perform this Trust Supplement, the Intercreditor Agreement and the Note
Documents to which it is or is to become a party and has taken all necessary
action to authorize the execution, delivery and performance by it of this Trust
Supplement, the Intercreditor Agreement and the Note Documents to which it
is or
is to become a party;
(b) the
execution, delivery and performance by the Trustee of this Trust Supplement,
the
Intercreditor Agreement and the Note Documents to which it is or is to become
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
execution, delivery and performance by the Trustee of this Trust Supplement,
the
Intercreditor Agreement and the Note Documents to which it is or is to become
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) this
Trust Supplement, the Intercreditor Agreement and the Note Documents to which
it
is or is to become a party have been, or will be, as applicable, duly executed
and delivered by the Trustee and constitute, or will constitute, as applicable,
the legal, valid and binding agreements of the Trustee, enforceable against
it
in accordance with their respective terms; provided,
however,
that
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors
generally and (ii) general principles of equity.
Section 6.04.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
AMENDMENTS; SUPPLEMENTAL AGREEMENTS
Section 7.01.
Amendment
of Section 2.01 of the Basic Agreement.
Section 2.01(b) of the Basic Agreement shall be amended, with respect to
the Applicable Trust, by replacing the phrase “related Aircraft” in
clause (11) thereof with the phrase “related Pledged Spare
Parts”.
Section 7.02.
Amendment
of Section 2.04 of the Basic Agreement.
Section 2.04 of the Basic Agreement shall be amended, with respect to the
Applicable Trust, by replacing the term “Aircraft” with the term “Pledged Spare
Parts” in both locations where the term “Aircraft” appears.
Section 7.03.
Amendment
of Section 5.02 of the Basic Agreement.
Section 5.02(a) of the Basic Agreement shall be amended in its entirety,
with respect to the Applicable Trust, to read as follows:
“(a) the
corporation formed by such consolidation or into which the Company is merged
or
the Person that acquires by conveyance, transfer or lease substantially all
of
the assets of the Company as an entirety shall be (i) organized and validly
existing under the laws of the United States of America or any state thereof
or
the District of Columbia, (ii) a “citizen of the United States” as defined
in 49 U.S.C. § 40102(a)(15), as amended, and (iii) a United States
certificated air carrier, if and so long as such status is a condition of
entitlement to the benefits of Section 1110 of the Bankruptcy Reform Act of
1978, as amended (11 U.S.C. § 1110), with respect to the Pledged Spare
Parts;”.
Section 7.04.
Amendment
of Section 6.05 of the Basic Agreement.
Section 6.05(2) of the Basic Agreement shall be amended in its entirety,
with respect to the Applicable Trust, to read as follows:
“(2) in
the
payment of the principal of, Premium or Break Amount, if any, or interest on
the
Equipment Notes held in the Applicable Trust, or”.
Section 7.05Amendment
of Section 7.02 of the Basic Agreement.
Section 7.02 of the Basic Agreement shall be amended in its entirety, with
respect to the Applicable Trust, to read as follows:
“Section 7.02.
Notice
of Defaults.
As
promptly as practicable after, and in any event within 90 days after, the
occurrence of any default (as such term is defined below) hereunder known to
the
Trustee, the Trustee shall transmit by mail to the Company, the Loan Trustee
and
the Applicable Certificateholders in accordance with Section 313(c) of the
Trust Indenture Act, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided,
however,
that,
except in the case of a default in the payment of the principal, Premium, if
any, Break Amount, if any, or interest on the Equipment Note, the Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith shall determine that the
withholding of such notice is in the interests of the Applicable
Certificateholders. For the purpose of this Section 7.02 in respect of the
Applicable Trust, the term “default”
means
any event that is, or after notice or lapse of time or both would become, an
Event of Default in respect of the Applicable Trust.”
Section 7.06.
Supplemental
Agreements Without Consent of Applicable Certificateholders.
Without
limitation of Section 9.01 of the Basic Agreement, under the terms of, and
subject to the limitations contained in, Section 9.01 of the Basic
Agreement, the Company may (but will not be required to), and the Trustee
(subject to Section 9.03 of the Basic Agreement) shall, at the Company’s
request, at any time and from time to time enter into one or more agreements
supplemental to the NPA, the Reference Agency Agreement, the Policy or the
Policy Provider 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) the
reference in the introductory paragraph of Section 9.01 of the Basic
Agreement to a “Liquidity Facility” shall be deemed to refer to “the Above-Cap
Liquidity Facility and the Primary Liquidity Facility”,
(b) 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, the Reference Agency Agreement, the Policy or the Policy Provider
Agreement, and (c) 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 Above-Cap
Liquidity Facility, the Primary Liquidity Facility, the Reference Agency
Agreement, the NPA, the Policy or the Policy Provider Agreement”.
Section 7.07.
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 Above-Cap Liquidity Facility, the
Primary Liquidity Facility, the Reference Agency Agreement, the NPA, the Policy
or the Policy Provider Agreement or modifying in any manner the rights and
obligations of the Applicable Certificateholders under the Above-Cap Liquidity
Facility, the Primary Liquidity Facility, the Reference Agency Agreement, the
NPA, the Policy or the Policy Provider Agreement.
Section 7.08.
Consent
of Holders of Certificates Issued under Other Trust.
Notwithstanding any provision in Section 7.06 or Section 7.07 of this
Trust Supplement to the contrary, no amendment or modification of
Section 5.01 of this Trust Supplement shall be effective unless the Other
Trustee of the Certificates issued by the Other Trust that are affected by
such
amendment or modification shall have consented thereto.
Section 7.09.
Amendment
of Section 12.11 of the Basic Agreement.
Section 12.11 of the Basic Agreement shall be amended, with respect to the
Applicable Trust, in its entirety to read as follows: “In any case where any
Regular Distribution Date or Special Distribution Date relating to any
Certificate of any series shall not be a Business Day with respect to such
series, then (notwithstanding any other provision of this Agreement) payment
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on such Regular Distribution
Date
or Special Distribution Date, and interest shall accrue during the intervening
period.”
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 HAVE BEEN DELIVERED IN THE STATE
OF
NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. THIS
SECTION 8.02 SUPERSEDES AND REPLACES SECTION 12.05 OF THE BASIC
AGREEMENT,
WITH
RESPECT TO THE APPLICABLE TRUST.
Section 8.03.
Execution
in Counterparts.
This
Trust Supplement may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
and the same instrument.
Section 8.04.
Intention
of Parties.
The
parties hereto intend that the Applicable Trust be classified for U.S. federal
income tax purposes as a grantor trust under Subpart E, Part I of Subchapter
J
of the Internal Revenue Code of 1986, as amended, and not as a trust or
association taxable as a corporation or as a partnership. Each Applicable
Certificateholder and Investor, by its acceptance of its Applicable Certificate
or a beneficial interest therein, agrees to treat the Applicable Trust as a
grantor trust for all U.S. federal, state and local income tax purposes. The
powers granted and obligations undertaken pursuant to the Agreement shall be
so
construed so as to further such intent.
IN
WITNESS WHEREOF, the Company and the Trustee have caused this Trust Supplement
to be duly executed by their respective officers thereto duly authorized, as
of
the day and year first written above.
| CONTINENTAL AIRLINES, INC. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
|
WILMINGTON
TRUST COMPANY,
as
Trustee
|
||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
FORM
OF
CERTIFICATE
Certificate
No.
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN
EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]*
CONTINENTAL
AIRLINES PASS THROUGH TRUST 2006-1G
Continental
Airlines
Pass
Through Certificates, Series 2006-1G
Issuance
Date: June 9, 2006
Final
Maturity Date: June 2, 2015
Evidencing
A Fractional Undivided Interest In The Continental Airlines Pass Through Trust
2006-1G, The Property Of Which Shall Include An Equipment Note Secured By
Pledged Spare Parts Owned By Continental Airlines, Inc.
$____________
Fractional Undivided Interest
representing
0.000526316% of the Trust per $1,000 face amount
THIS
CERTIFIES THAT ,
for
value received, is the registered owner of a $__________ (______________________
DOLLARS) Fractional Undivided Interest in the Continental Airlines Pass Through
Trust, 2006-1G (the “Trust”)
created by Wilmington Trust Company, as trustee (the “Trustee”),
pursuant to a Pass Through Trust Agreement, dated as of
*
This
legend to appear on Book-Entry Certificates to be deposited with the
Depository
Trust Company.
September 25,
1997 (the “Basic
Agreement”),
between the Trustee and Continental Airlines, Inc., a Delaware corporation
(the
“Company”),
as
supplemented by Trust Supplement No. 2006-1G thereto, dated as of June 9,
2006 (the “Trust
Supplement”
and,
together with the Basic Agreement, the “Agreement”),
between the Trustee and the Company, a summary of certain of the pertinent
provisions of which is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them
in
the Agreement. This Certificate is one of the duly authorized Certificates
designated as “Continental Airlines Pass Through Certificates,
Series 2006-1G” (herein called the “Certificates”).
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement. By virtue of its acceptance hereof, the holder
of
this Certificate (the “Certificateholder”
and,
together with all other holders of Certificates issued by the Trust, the
“Certificateholders”)
assents to and agrees to be bound by the provisions of the Agreement and the
Intercreditor Agreement. The property of the Trust includes an Equipment Note
and all rights of the Trust to receive payments under the Intercreditor
Agreement, the NPA, the Policy, the Above-Cap Liquidity Facility and the Primary
Liquidity Facility (the “Trust
Property”).
The
Equipment Note is secured by, among other things, a security interest in certain
aircraft spare parts owned by the Company.
The
Certificates represent Fractional Undivided Interests in the Trust and the
Trust
Property and have no rights, benefits or interest in respect of any other
separate trust established pursuant to the terms of the Basic Agreement for
any
other series of certificates issued pursuant thereto.
Subject
to and in accordance with the terms of the Agreement and the Intercreditor
Agreement, from funds then available to the Trustee, there will be distributed
on March 2, June 2, September 2 and December 2 of each year (or, in any such
case, if not a Business Day, the next succeeding Business Day) (each, a
“Regular
Distribution Date”)
commencing on September 2, 2006, to the Person in whose name this Certificate
is
registered at the close of business on the 15th day preceding the Regular
Distribution Date, an amount in respect of the Scheduled Payments on the
Equipment Note due on such Regular Distribution Date, the receipt of which
has
been confirmed by the Trustee, equal to the product of the percentage interest
in the Trust evidenced by this Certificate and an amount equal to the sum of
such Scheduled Payments. Subject to and in accordance with the terms of the
Agreement and the Intercreditor Agreement, in the event that Special Payments
on
the Equipment Note are received by the Trustee, from funds then available to
the
Trustee, there shall be distributed on the applicable Special Distribution
Date,
to the Person in whose name this Certificate is registered at the close of
business on the 15th day preceding the Special Distribution Date, an amount
in respect of such Special Payments on the Equipment Note, the receipt of which
has been confirmed by the Trustee, equal to the product of the percentage
interest in the Trust evidenced by this Certificate and an amount equal to
the
sum of such Special Payments so received. If a Special Distribution Date is
not
a Business Day, distribution shall be made on the immediately following Business
Day with the same force and effect as if made on such Special Distribution
Date
and interest shall accrue during the intervening period. The Trustee shall
mail
notice of each Special Payment and the Special Distribution Date therefor to
the
Certificateholder of this Certificate.
Distributions
on this Certificate will be made by the Trustee by check mailed to the Person
entitled thereto, without presentation or surrender of this Certificate or
the
making of any notation hereon, except that with respect to Certificates
registered on the Record Date in the name of a Clearing Agency (or its nominee),
such distribution shall be made by wire transfer. Except as otherwise provided
in the Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after notice mailed by the Trustee of the pendency
of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency of the Trustee specified in such notice.
The
Certificates do not represent a direct obligation of, or an obligation
guaranteed by, or an interest in, the Company or the Trustee or any affiliate
thereof. The Certificates are limited in right of payment, all as more
specifically set forth on the face hereof and in the Agreement. All payments
or
distributions made to Certificateholders under the Agreement shall be made
only
from the Trust Property and only to the extent that the Trustee shall have
sufficient income or proceeds from the Trust Property to make such payments
in
accordance with the terms of the Agreement. Each Certificateholder of this
Certificate, by its acceptance hereof, agrees that it will look solely to the
income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for information with respect to the interests, rights, benefits,
obligations, privileges, and duties evidenced hereby. A copy of the Agreement
may be examined during normal business hours at the principal office of the
Trustee, and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Certificateholders under the Agreement at any time by the
Company and the Trustee with the consent of the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less
than
a majority in interest in the Trust. Any such consent by the Certificateholder
of this Certificate shall be conclusive and binding on such Certificateholder
and upon all future Certificateholders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Certificateholders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations set forth therein,
the transfer of this Certificate is registrable in the Register upon surrender
of this Certificate for registration of transfer at the offices or agencies
maintained by the Trustee in its capacity as Registrar, or by any successor
Registrar, duly endorsed or accompanied by a written instrument of transfer
in
form satisfactory to the Trustee and the Registrar, duly executed by the
Certificateholder hereof or such Certificateholder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate Fractional Undivided Interest in the Trust will
be
issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
minimum denominations of $1,000 Fractional Undivided Interest or integral
multiples of $1,000 in excess thereof, except that one Certificate may be issued
in a different denomination. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust, as requested by the
Certificateholder surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee shall require payment of a sum sufficient to cover any tax
or
governmental charge payable in connection therewith.
Each
Certificateholder and Investor, by its acceptance of this Certificate or a
beneficial interest herein, agrees to treat the Trust as a grantor trust for
all
U.S. federal, state and local income tax purposes.
The
Trustee, the Registrar, and any agent of the Trustee or the Registrar may treat
the person in whose name this Certificate is registered as the owner hereof
for
all purposes, and neither the Trustee, the Registrar nor any such agent shall
be
affected by any notice to the contrary.
The
obligations and responsibilities created by the Agreement and the Trust created
thereby shall terminate upon the distribution to Certificateholders of all
amounts required to be distributed to them pursuant to the Agreement and the
disposition of all property held as part of the Trust Property.
Any
Person acquiring or accepting this Certificate or an interest herein will,
by
such acquisition or acceptance, be deemed to have represented and warranted
to
and for the benefit of the Company that either: (i) the assets of an
employee benefit plan subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”),
or of
a plan subject to Section 4975 of the Internal Revenue Code of 1986, as
amended (the “Code”),
have
not been used to purchase this Certificate or an interest herein or
(ii) the purchase and holding of this Certificate or an interest herein are
exempt from the prohibited transaction restrictions of ERISA and the Code
pursuant to one or more prohibited transaction statutory or administrative
exemptions.
THE
AGREEMENT AND THIS CERTIFICATE HAVE BEEN DELIVERED IN THE STATE OF NEW YORK
AND
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF
NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
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CONTINENTAL
AIRLINES PASS THROUGH
TRUST
2006-1G
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| By: |
WILMINGTON
TRUST COMPANY,
as
Trustee
|
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| |
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| By: | ||
|
Name: |
||
| Title: | ||
FORM
OF
THE TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
WILMINGTON
TRUST COMPANY,
as
Trustee
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| |
|
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| By: | ||
|
Name: |
||
| Title: | ||
DTC
Letter of Representations
