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NOTE PURCHASE AGREEMENT
Dated as of April 19, 2001
Among
CONTINENTAL AIRLINES, INC.,
WILMINGTON TRUST COMPANY,
as Pass Through Trustee under each of the
Pass Through Trust Agreements
WILMINGTON TRUST COMPANY,
as Subordination Agent
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Escrow Agent
and
WILMINGTON TRUST COMPANY,
as Paying Agent
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INDEX TO NOTE PURCHASE AGREEMENT
Page
SECTION 1. Financing of New Aircraft..........................................4
SECTION 2. Conditions Precedent..............................................11
SECTION 3. Representations and Warranties....................................12
SECTION 4. Covenants.........................................................17
SECTION 5. Notices...........................................................18
SECTION 6. Expenses..........................................................19
SECTION 7. Further Assurances................................................20
SECTION 8. Miscellaneous.....................................................20
SECTION 9. Governing Law.....................................................21
SCHEDULES
Schedule I New Aircraft and Scheduled Delivery Months
Schedule II Trust Supplements
Schedule III Deposit Agreements
Schedule IV Escrow and Paying Agent Agreements
Schedule V Mandatory Document Terms
Schedule VI Mandatory Economic Terms
ANNEX
Annex A Definitions
EXHIBITS
Exhibit A-1 Form of Leased Aircraft Participation Agreement
Exhibit A-2 Form of Lease
Exhibit A-3 Form of Leased Aircraft Indenture
Exhibit A-4 Form of Aircraft Purchase Agreement Assignment
Exhibit A-5 Form of Leased Aircraft Trust Agreement
Exhibit A-6 Form of Special Indenture
Exhibit B Form of Delivery Notice
Exhibit C-1 Form of Owned Aircraft Participation Agreement
Exhibit C-2 Form of Owned Aircraft Indenture
Exhibit D Form of Special Addition to Participation Agreement
Exhibit E Special Revisions to Section 6.2 of the Participation Agreement
Exhibit F Additional Subordination Provision for Series D Equipment Notes
NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT, dated as of April 19, 2001, among
(i)CONTINENTAL AIRLINES, INC., a Delaware corporation (the "Company"),
(ii)WILMINGTON TRUST COMPANY ("WTC"), a Delaware banking corporation, not in its
individual capacity except as otherwise expressly provided herein, but solely as
trustee (in such capacity together with its successors in such capacity, the
"Pass Through Trustee") under each of the three separate Pass Through Trust
Agreements (as defined below), (iii) WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as subordination agent and trustee (in such capacity
together with its successors in such capacity, the "Subordination Agent") under
the Intercreditor Agreement (as defined below), (iv)FIRST SECURITY BANK,
NATIONAL ASSOCIATION, a national banking association, as Escrow Agent (in such
capacity together with its successors in such capacity, the "Escrow Agent"),
under each of the Escrow and Paying Agent Agreements (as defined below) and (v)
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Paying Agent (in
such capacity together with its successors in such capacity, the "Paying Agent")
under each of the Escrow and Paying Agent Agreements.
W I T N E S S E T H:
WHEREAS, capitalized terms used but not defined herein shall have
the meanings ascribed to such terms in Annex A hereto;
WHEREAS, the Company has obtained commitments from the Manufacturer
pursuant to the Aircraft Purchase Agreements for the delivery of the 31 aircraft
listed in Schedule I hereto (together with any aircraft substituted therefor in
accordance with an Aircraft Purchase Agreement prior to the delivery thereof,
the "ELIGIBLE AIRCRAFT"), and the Company wishes to finance pursuant to this
Agreement a portion of the purchase price of nine of the twelve Boeing 737-824
aircraft, five of the seven Boeing 737-924 Aircraft, six of the ten Boeing
767-424ER aircraft, and one of the two Boeing 777-224ER aircraft included in the
Eligible Aircraft (such aircraft to be financed hereunder, the "NEW AIRCRAFT");
WHEREAS, pursuant to the Basic Pass Through Trust Agreement and each
of the Trust Supplements set forth in Schedule II hereto, and concurrently with
the execution and delivery of this Agreement, separate grantor trusts
(collectively, the "PASS THROUGH TRUSTS" and, individually, a "PASS THROUGH
TRUST") have been created to facilitate certain of the transactions contemplated
hereby, including, without limitation, the issuance and sale of pass through
certificates pursuant thereto (collectively, the "CERTIFICATES") to provide for
a portion of the financing of the New Aircraft;
WHEREAS, the Company has entered into the Underwriting Agreement
dated as of April 4, 2001 (the "UNDERWRITING AGREEMENT") with the several
underwriters (the "UNDERWRITERS") named therein, which provides that the Company
will cause each Pass Through Trustee to issue and sell the Certificates to the
Underwriters;
WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) the Escrow Agents and the Depositary entered into the Deposit
Agreements set forth in Schedule III hereto (the "DEPOSIT AGREEMENTS") whereby
the applicable Escrow Agent agreed to direct the Underwriters to make certain
deposits referred to therein on the Issuance Date (the "INITIAL DEPOSITS") and
to permit the applicable Pass Through Trustee to make additional deposits from
time to time thereafter (the Initial Deposits together with such additional
deposits are collectively referred to as the "DEPOSITS") and (ii) the Pass
Through Trustees, the Underwriters, the Paying Agents and the Escrow Agents
entered into the Escrow and Paying Agent Agreements set forth in Schedule IV
hereto (the "ESCROW AND PAYING AGENT AGREEMENTS") whereby, among other things,
(a) the Underwriters agreed to deliver an amount equal to the amount of the
Initial Deposits to the Depositary on behalf of the applicable Escrow Agent and
(b) the applicable Escrow Agent, upon the Depositary receiving such amount, has
agreed to deliver escrow receipts to be affixed to each Certificate;
WHEREAS, prior to the financing of each New Aircraft, the Company
will determine whether to enter into a leveraged lease transaction as lessee
with respect to such New Aircraft (a "LEASED AIRCRAFT") or to purchase as owner
such New Aircraft (an "OWNED AIRCRAFT") and which series of Equipment Notes will
be issued with respect to such New Aircraft, and the Company will give to the
Pass Through Trustee a Delivery Notice (as defined below) specifying its
election;
WHEREAS, upon receipt of a Delivery Notice with respect to a New
Aircraft, subject to the terms and conditions of this Agreement, the applicable
Pass Through Trustees will enter into the applicable Financing Agreements
relating to such New Aircraft;
WHEREAS, upon the financing of each New Aircraft, each applicable
Pass Through Trustee will fund its purchase of Equipment Notes with the proceeds
of one or more Deposits withdrawn by the applicable Escrow Agent under the
related Deposit Agreement bearing the same interest rate as the Certificates
issued by such Pass Through Trust (or, if financed on the Issuance Date, with a
portion of the proceeds from the offering of the Certificates); and
WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) Landesbank Hessen-Thuringen Girozentrale (the "LIQUIDITY
PROVIDER"), has entered into three separate revolving credit agreements, one
each for the benefit of the Certificateholders of each Pass Through Trust, in
each case with the Subordination Agent, as agent for the Pass Through Trustee on
behalf of each such Pass Through Trust (each such revolving credit agreement
with the Liquidity Provider, a "LIQUIDITY FACILITY") and (ii) the Pass Through
Trustee, the Liquidity Provider and the Subordination Agent have entered into
the Intercreditor Agreement, dated as of the date hereof (the "INTERCREDITOR
AGREEMENT");
WHEREAS, after the issuance of the Certificates, the Company expects
to issue Class C pass through certificates ("CLASS C CERTIFICATES") pursuant to
the Basic Pass Through Trust Agreement and a related trust supplement, the
proceeds of which will be used to acquire Series C Equipment Notes issued with
respect to each New Aircraft, subject to receipt of Rating Agency Confirmation
with respect to the terms of the Class C Certificates;
WHEREAS, it is a condition to the use of Deposits to acquire
Equipment Notes hereunder that either (x) the Class C Certificates shall have
been issued and concurrently with any purchase of Series X-0, X-0 and B
Equipment Notes with respect to a New Aircraft there is a purchase of Series C
Equipment Notes with respect to such New Aircraft or (y) a portion of the
Deposits shall have been distributed to the holders of Class A-1 or Class B
Certificates (or both) and Rating Agency Confirmation with respect to the
failure to issue Class C Certificates shall have been obtained;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements herein contained and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. FINANCING OF NEW AIRCRAFT. (a) The Company confirms that
it has entered into the Aircraft Purchase Agreements with the Manufacturer
pursuant to which the Company has agreed to purchase, and the Manufacturer has
agreed to deliver, the Eligible Aircraft in the months specified in Schedule I
hereto, all on and subject to terms and conditions specified in the applicable
Aircraft Purchase Agreement. The Company agrees to finance the New Aircraft in
the manner provided herein, all on and subject to the terms and conditions
hereof and of the relevant Financing Agreements.
(b) In furtherance of the foregoing, the Company agrees to give the
parties hereto, the Depositary and each of the Rating Agencies not less than two
Business Days' prior notice substantially in the form of Exhibit B hereto (a
"DELIVERY NOTICE") of the scheduled delivery date (the "SCHEDULED DELIVERY
DATE") (or, in the case of a substitute Delivery Notice under Section 1(e) or
(f) hereof, one Business Day's prior notice) in respect of each New Aircraft
under the applicable Aircraft Purchase Agreement, which notice shall:
(i) specify whether the Company has elected to treat such New
Aircraft as a Leased Aircraft or an Owned Aircraft;
(ii) specify the Scheduled Delivery Date of such New Aircraft (which
shall be a Business Day before the Cut-off Date and, except as provided in
Section 1(f) hereof, the date (the "FUNDING DATE") on which the financing
therefor in the manner provided herein shall be consummated);
(iii) instruct each Pass Through Trustee being requested to purchase
Equipment Notes pursuant to such Delivery Notice (the "APPLICABLE PASS THROUGH
TRUSTEES") to instruct the relevant Escrow Agent to provide a Notice of Purchase
Withdrawal to the Depositary with respect to the Equipment Notes to be issued in
connection with the financing of such New Aircraft (except in the case of any
such financing on the Issuance Date);
(iv) instruct each Applicable Pass Through Trustee to enter into the
Participation Agreement included in the Financing Agreements with respect to
such Aircraft in such form and at such a time on or before the Funding Date
specified in such Delivery Notice and to perform its obligations thereunder;
(v) specify the aggregate principal amount of each series of
Equipment Notes, if any, to be issued, and purchased by the Applicable Pass
Through Trustees, in connection with the financing of such New Aircraft
scheduled to be delivered on such Funding Date (which shall in all respects
comply with the Mandatory Economic Terms); and
(vi) if such New Aircraft is to be a Leased Aircraft, certify that
the related Owner Participant (A) is not an Affiliate of the Company and (B)
based on the representations of such Owner Participant, is either (1) a
Qualified Owner Participant or (2) any other person the obligations of which
under the Owner Participant Agreements (as defined in the applicable
Participation Agreement) are guaranteed by a Qualified Owner Participant.
Notwithstanding the foregoing, in the event the Issuance Date coincides with the
Scheduled Delivery Date of any Aircraft to be financed pursuant to the terms
hereof, the Delivery Notice therefor may be delivered to the parties hereto on
such Scheduled Delivery Date.
(c) Upon receipt of a Delivery Notice, the Applicable Pass Through
Trustees shall, and shall cause the Subordination Agent to, enter into and
perform their obligations under the Participation Agreement specified in such
Delivery Notice, PROVIDED that such Participation Agreement and the other Lease
Financing Agreements or Owner Financing Agreements to be entered into pursuant
to such Participation Agreement shall be in the forms thereof annexed hereto in
all material respects with such changes therein as shall have been requested by
(x) the related Owner Participant (in the case of Lease Financing Agreements),
(y) the initial purchasers of the Class C Certificates or (z) the initial
purchasers of the Series D Equipment Notes or Class D pass through certificates,
in any such case agreed to by the Company and, if modified in any material
respect, as to which Rating Agency Confirmation shall have been obtained from
each Rating Agency by the Company (to be delivered by the Company to the
Applicable Pass Through Trustees on or before the relevant Funding Date, it
being understood that if Rating Agency Confirmation shall have been received
with respect to any Financing Agreements and such Financing Agreements are
utilized for subsequent New Aircraft (or Substitute Aircraft) without material
modifications, no additional Rating Agency Confirmation shall be required);
PROVIDED, HOWEVER, that the relevant Financing Agreements as executed and
delivered shall not vary the Mandatory Economic Terms and shall contain the
Mandatory Document Terms. Notwithstanding the foregoing, (i) if The Boeing
Company or General Electric Company, or any of their respective Affiliates, is
the Owner Participant with respect to any Leased Aircraft, the Leased Aircraft
Participation Agreement to be entered into pursuant to the Delivery Notice with
respect to such Leased Aircraft may be modified, if agreed to by the Company,
from the form annexed hereto (A) to add a Section 16 thereto substantially in
the form of Exhibit D hereto and (B) in the case of The Boeing Company or any of
its Affiliates, Section 6.2 may be changed as set forth in Exhibit E hereto, and
such Leased Aircraft Participation Agreement, as so modified, shall be deemed
(1) to be substantially in the form thereof annexed hereto and (2) by virtue of
such modification not to be inconsistent with the Mandatory Document Terms, (ii)
if any Financing Agreement annexed hereto shall not have been reviewed by either
Rating Agency prior to the Issuance Date, then, prior to the use thereof in
connection with the financing of any Aircraft hereunder, the Company shall
obtain from each Rating Agency a confirmation that the use of such Financing
Agreement would not result in (A) a reduction of the rating for any Class of
Certificates below the then current rating for such Class of Certificates or (B)
a withdrawal or suspension of the rating of any Class of Certificates, and (iii)
an Indenture may be modified to the extent required pursuant to Section 4(a)(vi)
of this Agreement. The Company shall pay the reasonable costs and expenses of
the Rating Agencies in connection with obtaining any such Rating Agency
Confirmation. With respect to each New Aircraft, the Company shall cause WTC (or
such other person that meets the eligibility requirements to act as loan trustee
under the Leased Aircraft Indenture, Owned Aircraft Indenture or Special
Indenture) to execute as Loan Trustee the Financing Agreements relating to such
Aircraft to which such Loan Trustee is intended to be a party, and shall
concurrently therewith execute such Financing Agreements to which the Company is
intended to be a party and perform its respective obligations thereunder. Upon
the request of either Rating Agency, the Company shall deliver or cause to be
delivered to each Rating Agency a true and complete copy of each Financing
Agreement relating to the financing of each New Aircraft together with a true
and complete set of the closing documentation (including legal opinions)
delivered to the related Loan Trustee, Subordination Agent and Pass Through
Trustee under the related Participation Agreement.
(d) [Intentionally omitted.]
(e) If after giving any Delivery Notice, there shall be a delay in
the delivery of the Eligible Aircraft referred to therein, or if on the
Scheduled Delivery Date of the Eligible Aircraft the financing thereof in the
manner contemplated hereby shall not be consummated for whatever reason, the
Company shall give the parties hereto prompt notice thereof. Concurrently with
the giving of such notice of postponement or subsequently, the Company shall
give the parties hereto a substitute Delivery Notice specifying the date to
which delivery and related financing of such Eligible Aircraft or of another
Eligible Aircraft of the same type in lieu thereof shall have been re-scheduled
(which shall be a Business Day before the Cut-off Date on which the Escrow
Agents shall be entitled to withdraw one or more Deposits under each of the
applicable Deposit Agreements to enable each Applicable Pass Through Trustee to
fund its purchase of the related Equipment Notes). Upon receipt of any such
notice of postponement, each Applicable Pass Through Trustee shall comply with
its obligations under Section 5.01 of each of the Trust Supplements and
thereafter the financing of such Eligible Aircraft, as specified in such
substitute Delivery Notice, shall take place on the re-scheduled Delivery Date
therefor (all on and subject to the terms and conditions of the relevant
Financing Agreements or other financing agreements in the case of a Special
Structure) unless further postponed as provided herein.
(f) Anything in this Section 1 to the contrary notwithstanding, the
Company shall have the right at any time on or before the Scheduled Delivery
Date of any New Aircraft, and subsequent to its giving a Delivery Notice
therefor, to postpone the Scheduled Delivery Date of such New Aircraft so as to
enable the Company to change its election to treat such New Aircraft as a Leased
Aircraft or an Owned Aircraft by written notice of such postponement to the
other parties hereto. The Company shall subsequently give the parties hereto a
substitute Delivery Notice complying with the provisions of Section 1(b) hereof
and specifying the new Funding Date for such postponed New Aircraft (which shall
be a Business Day occurring before the Cut-off Date and on which the Escrow
Agents shall be entitled to withdraw Deposits under each of the applicable
Deposit Agreements sufficient to enable each Applicable Pass Through Trustee to
fund its purchase of the related Equipment Notes). In addition, the Company
shall have the further right, anything in this Section 1 to the contrary
notwithstanding, to accept delivery of a New Aircraft under the applicable
Aircraft Purchase Agreement on the Delivery Date thereof by utilization of
bridge financing of such New Aircraft and promptly thereafter give the parties
hereto a Delivery Notice specifying a Funding Date not later than 90 days after
the Delivery Date of such New Aircraft and no later than the Cut-off Date and
otherwise complying with the provisions of Section 1(b) hereof. All other terms
and conditions of this Note Purchase Agreement shall apply to the financing of
any such New Aircraft on the re-scheduled Funding Date therefor except (i) the
re-scheduled Funding Date shall be deemed the Delivery Date of such New Aircraft
for all purposes of this Section 1 and (ii) the related Financing Agreements
shall be amended to reflect the original delivery of such New Aircraft to the
Company.
(g) If the Scheduled Delivery Date for any Eligible Aircraft is
delayed (a) more than 30 days beyond the last day of the month set forth
opposite such Eligible Aircraft under the heading "Scheduled Delivery Months" in
Schedule I hereto or (b) beyond September 30, 2002, the Company may identify for
delivery a substitute aircraft therefor meeting the following conditions (a
"SUBSTITUTE AIRCRAFT"): (i) a Substitute Aircraft must be a Boeing 737-800,
737-900, 767-400ER or 777-200ER aircraft manufactured after the date of this
Agreement, (ii) one or more Substitute Aircraft of the same or different types
may be substituted for one or more Eligible Aircraft of the same or different
types so long as after giving effect thereto such substitution does not vary the
Mandatory Economic Terms and (iii) the Company shall be obligated to obtain
Rating Agency Confirmation in respect of the replacement of any Eligible
Aircraft by Substitute Aircraft. Upon the satisfaction of the conditions set
forth above with respect to a Substitute Aircraft, the Eligible Aircraft to be
replaced shall cease to be subject to this Agreement and all rights and
obligations of the parties hereto concerning such Eligible Aircraft shall cease,
and such Substitute Aircraft shall become and thereafter be subject to the terms
and conditions of this Agreement to the same extent as such Eligible Aircraft.
(h) The Company shall have no liability for the failure of the Pass
Through Trustees to purchase Equipment Notes with respect to any New Aircraft or
Substitute Aircraft.
(i) The parties agree that if, in connection with the delivery of a
New Aircraft or Substitute Aircraft, any Owner Participant who is to be a party
to any Lease Financing Agreement shall not be a "Citizen of the United States"
within the meaning of Section 40102(a)(15) of the Act, then the applicable Lease
Financing Agreements shall be modified, consistent with the Mandatory Document
Terms, to require such Owner Participant to enter into a voting trust, voting
powers or similar arrangement satisfactory to the Company that (A) enables such
New Aircraft or Substitute Aircraft to be registered in the United States and
(B) complies with the FAA regulations issued under the Act applicable thereto.
(j) Anything herein to the contrary notwithstanding, the Company
shall not have the right, and shall not be entitled, at any time to request the
issuance of Equipment Notes of any series to any Pass Through Trustee in an
aggregate principal amount in excess of the amount of the Deposits then
available for withdrawal by the Escrow Agent under and in accordance with the
provisions of the related Deposit Agreement.
(k) Notwithstanding the foregoing provisions of this Section 1, and
anything herein to the contrary notwithstanding, upon not less than 30 days'
prior written notice to the parties hereto, the Company shall have the right,
within 120 days after the date any Aircraft has been financed as an Owned
Aircraft, to sell such Owned Aircraft and transfer title to such Owned Aircraft
to an Owner Trustee for the benefit of an Owner Participant (which shall be a
Qualified Owner Participant) in a transaction in which such Owner Trustee
assumes all of the obligations of the Company under the relevant Equipment Notes
and the Owned Aircraft Indenture on a non-recourse basis (with the Company being
released from such obligations, except to the extent accrued prior thereto),
leases the Aircraft to the Company and assigns such lease to the Loan Trustee
pursuant to an amended and restated trust indenture (a "SALE/LEASEBACK
TRANSACTION"). In connection with such Sale/Leaseback Transaction, the Company
and the relevant Note Holders will execute and deliver appropriate documentation
permitting the Owner Trustee to assume the obligations of the Company under the
relevant Equipment Notes and the Owned Aircraft Indenture on a non-recourse
basis, releasing the Company from all obligations in respect of such Equipment
Notes and the Owned Aircraft Indenture (except to the extent accrued prior
thereto), and take all other actions as are reasonably necessary to permit such
assumption by the Owner Trustee. In connection with any such Sale/Leaseback
Transaction, the parties hereto agree that (a) the documents to be utilized
shall be (i) an amended and restated participation agreement amending and
restating the applicable Owned Aircraft Participation Agreement, to be
substantially in the form of the Leased Aircraft Participation Agreement, among
the Company, the relevant Note Holders, the Owner Participant, the Owner
Trustee, and the Loan Trustee, with (x) such changes to such form to reflect the
assumption of such Equipment Notes by the Owner Trustee on a non-recourse basis
rather than the issuance thereof by the Owner Trustee and original purchase
thereof by the Note Holders and also to reflect the release of the Company from
all obligations under such Equipment Notes and the Owned Aircraft Indenture
(except to the extent accrued prior thereto) and (y) such other changes as may
be permitted under Section 1(c) hereof applicable to a Leased Aircraft
Participation Agreement in connection with a leveraged lease transaction, (ii) a
Lease, with such changes as may be permitted under Section 1(c) hereof
applicable to the Lease in connection with a leveraged lease transaction, (iii)
an amended and restated trust indenture amending and restating the relevant
Owned Aircraft Indenture, to be substantially in the form of a Leased Aircraft
Indenture, between the Owner Trustee and the Loan Trustee, with (x) such changes
to such form to reflect the assumption of all of the obligations of the Owner
Trustee under the relevant Equipment Notes and the relevant Owned Aircraft
Indenture on a non-recourse basis and the release of the obligations of the
Company under such Equipment Notes and the relevant Owned Aircraft Indenture and
(y) such other changes as may be permitted under Section 1(c) hereof applicable
to a Leased Aircraft Indenture in connection with a leveraged lease transaction,
(iv) a purchase agreement assignment, to be substantially in the form of the
Aircraft Purchase Agreement Assignment between the Company and the Owner Trustee
with (x) such changes to such form to reflect the prior purchase of the Aircraft
by the Company from the Manufacturer, and (y) such other changes as may be
permitted under Section 1(c) hereof applicable to an Aircraft Purchase Agreement
Assignment in connection with a leveraged lease transaction, and (v) a Trust
Agreement, between the Owner Trustee and the Owner Participant with such changes
as may be permitted in accordance with the provisions of Section 1(c) hereof
applicable to a Trust Agreement in connection with a leveraged lease transaction
and (b) the relevant Equipment Notes shall be delivered to the Loan Trustee for
cancellation in exchange for new equipment notes to be issued to the Note
Holders by the Owner Trustee upon the authentication thereof by the Loan
Trustee, such new equipment notes to be substantially in the form contained in
Section 2.01 of the Leased Aircraft Indenture. Such new equipment notes will
have the same payment terms except that in the event that the Company enters
into a Sale/Leaseback Transaction prior to the Delivery Period Termination Date,
the Company shall have the right to reoptimize the new equipment notes to be
issued to the Note Holders by the Owner Trustee in compliance with the Mandatory
Economic Terms and subject to obtaining Rating Agency Confirmation with respect
thereto.
Notwithstanding the foregoing, the Company shall not have the right
to enter into a Sale/Leaseback Transaction unless the Company (i) causes to be
delivered to the Loan Trustee an opinion of counsel (both counsel and opinion
satisfactory to the Loan Trustee) to the effect that the Pass Through Trusts
will not be subject to Federal income tax as a result of such Sale/Leaseback
Transaction, (ii) furnishes to the Loan Trustee either (A) an opinion of counsel
to the effect that the Certificateholders will not recognize gain or loss for
Federal income tax purposes as a result of such Sale/Leaseback Transaction and
will be subject to Federal income tax on the same amount, in the same manner and
at the same time as would have been the case if such Sale/Leaseback Transaction
had not occurred or (B) both an opinion of counsel (both counsel and opinion
satisfactory to the Loan Trustee) that the Certificateholders should not
recognize gain or loss for Federal income tax purposes in connection with such
Sale/Leaseback Transaction and should be subject to Federal income tax on the
same amount, in the same manner and at the same time as would have been the case
if such Sale/Leaseback Transaction had not occurred and an indemnification in
favor of the holders of the Certificates in form and substance reasonably
satisfactory to the Loan Trustee and (iii) obtains a Rating Agency Confirmation
with respect thereto. In addition, the Company agrees to otherwise comply with
the provisions of Sections 1(c) and 2 hereof in connection with any
Sale/Leaseback Transaction.
SECTION 2. CONDITIONS PRECEDENT. The obligation of the Pass Through
Trustees to enter into, and to cause the Subordination Agent to enter into, any
Participation Agreement as directed pursuant to a Delivery Notice and to perform
its obligations thereunder is subject to satisfaction of the following
conditions:
(a) no Triggering Event shall have occurred;
(b) the Company shall have delivered a certificate to each such Pass
Through Trustee and the Liquidity Provider stating that (i) such Participation
Agreement and the other Financing Agreements to be entered into pursuant to such
Participation Agreement do not vary the Mandatory Economic Terms and contain the
Mandatory Document Terms, and (ii) any substantive modification of such
Financing Agreements from the forms of Financing Agreements attached to this
Agreement do not materially and adversely affect the Certificateholders, and
such certification shall be true and correct; and
(c) either (x) the Class C Certificates shall have been issued, a
Rating Agency Confirmation shall have been obtained with respect to the terms of
the Class C Certificates and, in the case of the Pass Through Trustees'
obligation to purchase Equipment Notes pursuant to such Participation Agreement,
the Series C Equipment Notes relating to the New Aircraft to be financed
pursuant to such Participation Agreement shall be concurrently purchased or (y)
if the Class C Certificates have not been issued, a portion of the Deposits held
for the Class A-1 Certificateholders or Class B Certificateholders (or both)
shall have been distributed to them and a Rating Agency Confirmation shall have
been obtained with respect to the failure to issue Class C Certificates.
Anything herein to the contrary notwithstanding, the obligation of
each Pass Through Trustee to purchase Equipment Notes shall terminate on the
Cut-off Date.
SECTION 3. REPRESENTATIONS AND WARRANTIES. (a) The Company
represents and warrants that:
(i) the Company is duly incorporated, validly existing and in
good standing under the laws of the State of Delaware and is a
"citizen of the United States" as defined in Section 40102(a)(15) of
the Act, and has the full corporate power, authority and legal right
under the laws of the State of Delaware to execute and deliver this
Agreement and each Financing Agreement to which it will be a party
and to carry out the obligations of the Company under this Agreement
and each Financing Agreement to which it will be a party;
(ii) the execution and delivery by the Company of this
Agreement and the performance by the Company of its obligations
under this Agreement have been duly authorized by the Company and
will not violate its Certificate of Incorporation or by-laws or the
provisions of any indenture, mortgage, contract or other agreement
to which it is a party or by which it is bound; and
(iii) this Agreement constitutes the legal, valid and binding
obligation of the Company, enforceable against it in accordance with
its terms, except as the same may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general
principles of equity, whether considered in a proceeding at law or
in equity.
(b) WTC represents and warrants that:
(i) WTC is duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and is a "citizen
of the United States" as defined in Section 40102(a)(15) of the Act,
and has the full corporate power, authority and legal right under
the laws of the State of Delaware and the United States pertaining
to its banking, trust and fiduciary powers to execute and deliver
this Agreement and each Financing Agreement to which it will be a
party and to carry out the obligations of WTC, in its capacity as
Subordination Agent, Pass Through Trustee or Paying Agent, as the
case may be, under this Agreement and each Financing Agreement to
which it will be a party;
(ii) the execution and delivery by WTC, in its capacity as
Subordination Agent, Pass Through Trustee or Paying Agent, as the
case may be, of this Agreement and the performance by WTC, in its
capacity as Subordination Agent, Pass Through Trustee or Paying
Agent, as the case may be, of its obligations under this Agreement
have been duly authorized by WTC, in its capacity as Subordination
Agent, Pass Through Trustee or Paying Agent, as the case may be, and
will not violate its articles of association or by-laws or the
provisions of any indenture, mortgage, contract or other agreement
to which it is a party or by which it is bound; and
(iii) this Agreement constitutes the legal, valid and binding
obligations of WTC, in its capacity as Subordination Agent, Pass
Through Trustee or Paying Agent, as the case may be, enforceable
against it in accordance with its terms, except as the same may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general principles of equity, whether considered in
a proceeding at law or in equity.
(c) The Pass Through Trustee hereby confirms to each of the other
parties hereto that its representations and warranties set forth in Section 7.15
of the Basic Pass Through Trust Agreement and Section 5.04 of each Trust
Supplement are true and correct as of the date hereof.
(d) The Subordination Agent represents and warrants that:
(i) the Subordination Agent is duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware, and has the full corporate power, authority and legal
right under the laws of the State of Delaware and the United States
pertaining to its banking, trust and fiduciary powers to execute and
deliver this Agreement and each Financing Agreement to which it is
or will be a party and to perform its obligations under this
Agreement and each Financing Agreement to which it is or will be a
party;
(ii) this Agreement has been duly authorized, executed and
delivered by the Subordination Agent; this Agreement constitutes the
legal, valid and binding obligations of the Subordination Agent
enforceable against it in accordance with its terms, except as the
same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity, whether
considered in a proceeding at law or in equity;
(iii) none of the execution, delivery and performance by the
Subordination Agent of this Agreement contravenes any law, rule or
regulation of the State of Delaware or any United States
governmental authority or agency regulating the Subordination
Agent's banking, trust or fiduciary powers or any judgment or order
applicable to or binding on the Subordination Agent and do not
contravene the Subordination Agent's articles of association or
by-laws or result in any breach of, or constitute a default under,
any agreement or instrument to which the Subordination Agent is a
party or by which it or any of its properties may be bound;
(iv) neither the execution and delivery by the Subordination
Agent of this Agreement nor the consummation by the Subordination
Agent of any of the transactions contemplated hereby requires the
consent or approval of, the giving of notice to, the registration
with, or the taking of any other action with respect to, any
Delaware governmental authority or agency or any federal
governmental authority or agency regulating the Subordination
Agent's banking, trust or fiduciary powers;
(v) there are no Taxes payable by the Subordination Agent
imposed by the State of Delaware or any political subdivision or
taxing authority thereof in connection with the execution, delivery
and performance by the Subordination Agent of this Agreement (other
than franchise or other taxes based on or measured by any fees or
compensation received by the Subordination Agent for services
rendered in connection with the transactions contemplated by the
Intercreditor Agreement or any of the Liquidity Facilities), and
there are no Taxes payable by the Subordination Agent imposed by the
State of Delaware or any political subdivision thereof in connection
with the acquisition, possession or ownership by the Subordination
Agent of any of the Equipment Notes (other than franchise or other
taxes based on or measured by any fees or compensation received by
the Subordination Agent for services rendered in connection with the
transactions contemplated by the Intercreditor Agreement or any of
the Liquidity Facilities); and
(vi) there are no pending or threatened actions or proceedings
against the Subordination Agent before any court or administrative
agency which individually or in the aggregate, if determined
adversely to it, would materially adversely affect the ability of
the Subordination Agent to perform its obligations under this
Agreement.
(e) The Escrow Agent represents and warrants that:
(i) the Escrow Agent is a national banking association duly
incorporated, validly existing and in good standing under the laws
of the United States and has the full corporate power, authority and
legal right under the laws of the United States pertaining to its
banking, trust and fiduciary powers to execute and deliver this
Agreement, each Deposit Agreement and each Escrow and Paying Agent
Agreement (collectively, the "ESCROW AGENT AGREEMENTS") and to carry
out the obligations of the Escrow Agent under each of the Escrow
Agent Agreements;
(ii) the execution and delivery by the Escrow Agent of each of
the Escrow Agent Agreements and the performance by the Escrow Agent
of its obligations hereunder and thereunder have been duly
authorized by the Escrow Agent and will not violate its articles of
association or by-laws or the provisions of any indenture, mortgage,
contract or other agreement to which it is a party or by which it is
bound; and
(iii) each of the Escrow Agent Agreements constitutes the
legal, valid and binding obligations of the Escrow Agent enforceable
against it in accordance with its terms, except as the same may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general principles of equity, whether considered in
a proceeding at law or in equity.
(f) The Paying Agent represents and warrants that:
(i) the Paying Agent is duly incorporated, validly existing
and in good standing under the laws of the State of Delaware and has
the full corporate power, authority and legal right under the laws
of the United States pertaining to its banking, trust and fiduciary
powers to execute and deliver this Agreement and the Escrow and
Paying Agent Agreement (collectively, the "PAYING AGENT AGREEMENTS")
and to carry out the obligations of the Paying Agent under each of
the Paying Agent Agreements;
(ii) the execution and delivery by the Paying Agent of each of
the Paying Agent Agreements and the performance by the Paying Agent
of its obligations hereunder and thereunder have been duly
authorized by the Paying Agent and will not violate its articles of
association or by-laws or the provisions of any indenture, mortgage,
contract or other agreement to which it is a party or by which it is
bound; and
(iii) each of the Paying Agent Agreements constitutes the
legal, valid and binding obligations of the Paying Agent enforceable
against it in accordance with its terms, except as the same may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general principles of equity, whether considered in
a proceeding at law or in equity.
SECTION 4. COVENANTS. (a) The Company covenants with each of the
other parties hereto that:
(i) If the Class C Certificates shall not have been issued on or
before December 31, 2001, the Company shall give written direction (the "PARTIAL
WITHDRAWAL DIRECTION") to the Pass Through Trustee for the Class A-1 Pass
Through Trust or Class B Pass Through Trust (or both) to instruct pursuant to
Section 5.02(a) of the applicable Trust Supplement the Escrow Agent to provide a
notice of partial withdrawal to the Depositary, substantially in the form of
Exhibit C to the applicable Deposit Agreement, to distribute on the date
specified in such Partial Withdrawal Direction (which shall be no earlier than
the 16th day after the date such Partial Withdrawal Direction is given but no
later than December 31, 2001) Deposits in the amount specified in such Partial
Withdrawal Direction for such Pass Through Trust (a "PARTIAL WITHDRAWAL"), which
amount shall be sufficient to obtain Rating Agency Confirmation with respect to
the failure to issue Class C Certificates. On the date that the Depositary is
obligated to pay the amount of such Partial Withdrawal to the Paying Agent
pursuant to a Deposit Agreement relating to any Pass Through Trust, the Company
shall pay to the Pass Through Trustee of such Pass Through Trust no later than
12:30 p.m. (New York time) an amount equal to the Deposit Make-Whole Premium in
respect of such Partial Withdrawal for such Pass Through Trust;
(ii) subject to Section 4(a)(iv) of this Agreement, the Company
shall at all times maintain its corporate existence and shall not wind up,
liquidate or dissolve or take any action, or fail to take any action, that would
have the effect of any of the foregoing;
(iii) the Company shall at all times remain a U.S. Air Carrier (as
defined in the Financing Agreements) and shall at all times be otherwise
certificated and registered to the extent necessary to entitle (A) in the case
of Leased Aircraft, the Owner Trustee (and the Loan Trustee as assignee of the
Owner Trustee's rights under each Lease) to the rights afforded to lessors of
aircraft equipment under Section 1110 and (B) in the case of Owned Aircraft, the
Loan Trustee to the rights afforded to secured parties of aircraft equipment
under Section 1110;
(iv) Section 13.2.1 of each Lease is hereby incorporated by
reference herein;
(v) the Company agrees to provide written notice to each of the
parties hereto of the occurrence of the Cut-off Date no later than one Business
Day after the date thereof; such notice to refer specifically to the Pass
Through Trustee's obligation to assign, transfer and deliver all of its right,
title and interest to the Trust Property (as defined in each Pass Through Trust
Agreement) to the trustee of the Related Trust (as defined in each Pass Through
Trust Agreement) in accordance with Section 7.01 of each of the Trust
Supplements; and
(vi) the Company shall not issue Series D Equipment Notes pursuant
to any Indenture, unless it shall have obtained written confirmation from each
Rating Agency that the issuance of such Series D Equipment Notes will not result
in (i) a reduction of the rating for any Class of Certificates below the then
current rating for such Class of Certificates or (ii) a withdrawal or suspension
of the rating of any Class of Certificates. If Series D Equipment Notes are
initially issued to other than the pass through trustee for the Class D
Certificates, the Company will cause (i) such Series D Equipment Notes to be
subject to the provisions of the Intercreditor Agreement that allow the
"Controlling Party" (as defined in the Intercreditor Agreement), during the
continuance of an "Indenture Default" (as defined in the Intercreditor
Agreement), to direct the Loan Trustee in taking action under the applicable
Indenture and (ii) the Indenture under which such Series D Equipment Notes are
issued to include the provisions set forth in Exhibit F to this Agreement.
(b) WTC, in its individual capacity, covenants with each of the
other parties to this Agreement that it will, immediately upon obtaining
knowledge of any facts that would cast doubt upon its continuing status as a
"citizen of the United States" as defined in Section 40102(a)(15) of the Act and
promptly upon public disclosure of negotiations in respect of any transaction
which would or might adversely affect such status, notify in writing all parties
hereto of all relevant matters in connection therewith. Upon WTC giving any such
notice, WTC shall, subject to Section 8.02 of any Indenture then entered into,
resign as Loan Trustee in respect of such Indenture.
SECTION 5. NOTICES. Unless otherwise specifically provided herein,
all notices required or permitted by the terms of this Agreement shall be in
English and in writing, and any such notice shall become effective upon being
delivered personally or, if promptly confirmed by mail, when dispatched by
facsimile or other written telecommunication, addressed to such party hereto at
its address or facsimile number set forth below the signature of such party at
the foot of this Agreement.
SECTION 6. EXPENSES. (a) The Company agrees to pay to the
Subordination Agent when due an amount or amounts equal to the fees payable to
the Liquidity Provider under Section 2.03 of each Liquidity Facility and the
related Fee Letter (as defined in the Intercreditor Agreement) multiplied by a
fraction the numerator of which shall be the then outstanding aggregate amount
of the Deposits under the Deposit Agreements and the denominator of which shall
be the sum of (x) the then outstanding aggregate principal amount of the Series
A-1 Equipment Notes, Series A-2 Equipment Notes, and Series B Equipment Notes
issued under all of the Indentures and (y) the then outstanding aggregate amount
of the Deposits under the Deposit Agreements.
(b) So long as no Equipment Notes have been issued in respect of any
Aircraft, the Company agrees to pay (i) to the Subordination Agent when due (A)
the amount equal to interest on any Downgrade Advance (other than any Applied
Downgrade Advance) payable under Section 3.07 of each Liquidity Facility minus
Investment Earnings while such Downgrade Advance shall be outstanding, (B) the
amount equal to interest on any Non-Extension Advance (other than any Applied
Non-Extension Advance) payable under Section 3.07 of each Liquidity Facility
minus Investment Earnings while such Non-Extension Advance shall be outstanding
and (C) any other amounts owed to the Liquidity Provider by the Subordination
Agent as borrower under each Liquidity Facility (other than amounts due as
repayment of advances thereunder or as interest on such advances, except to the
extent payable pursuant to clause (A) or (B)), (ii) all compensation and
reimbursement of expenses, disbursements and advances payable by the Company
under the Pass Through Trust Agreements, (iii) all compensation and
reimbursement of expenses and disbursements payable to the Subordination Agent
under the Intercreditor Agreement except with respect to any income or franchise
taxes incurred by the Subordination Agent in connection with the transactions
contemplated by the Intercreditor Agreement and (iv) in the event the Company
requests any amendment to any Operative Agreement, all reasonable fees and
expenses (including, without limitation, fees and disbursements of counsel) of
the Escrow Agent and/or the Paying Agent in connection therewith. For purposes
of this Section 6(b), the terms "Applied Downgrade Advance", "Applied
Non-Extension Advance", "Downgrade Advance", "Investment Earnings" and
"Non-Extension Advance" shall have the meanings specified in each Liquidity
Facility.
SECTION 7. FURTHER ASSURANCES. Each party hereto shall duly execute,
acknowledge and deliver, or shall cause to be executed, acknowledged and
delivered, all such further agreements, instruments, certificates or documents,
and shall do and cause to be done such further acts and things, in any case, as
any other party hereto shall reasonably request in connection with its
administration of, or to carry out more effectually the purposes of, or to
better assure and confirm unto it the rights and benefits to be provided under,
this Agreement.
SECTION 8. MISCELLANEOUS. (a) Provided that the transactions
contemplated hereby have been consummated, and except as otherwise provided for
herein, the representations, warranties and agreements herein of the Company,
the Subordination Agent, the Escrow Agent, the Paying Agent and the Pass Through
Trustee, and the Company's, the Subordination Agent's, the Escrow Agent's, the
Paying Agent's and the Pass Through Trustee's obligations under any and all
thereof, shall survive the expiration or other termination of this Agreement and
the other agreements referred to herein.
(b) This Agreement may be executed in any number of counterparts
(and each of the parties hereto shall not be required to execute the same
counterpart). Each counterpart of this Agreement, including a signature page
executed by each of the parties hereto, shall be an original counterpart of this
Agreement, but all of such counterparts together shall constitute one
instrument. Neither this Agreement nor any of the terms hereof may be
terminated, amended, supplemented, waived or modified orally, but only by an
instrument in writing signed by the party against which the enforcement of the
termination, amendment, supplement, waiver or modification is sought. The
Subordination Agent, the Escrow Agent and the Paying Agent shall sign any
amendment to this Agreement entered into by the Company and the Pass Through
Trustee pursuant to Section 6.02(ii) of each Trust Supplement. The index
preceding this Agreement and the headings of the various Sections of this
Agreement are for convenience of reference only and shall not modify, define,
expand or limit any of the terms or provisions hereof. The terms of this
Agreement shall be binding upon, and shall inure to the benefit of, the Company
and its successors and permitted assigns, the Pass Through Trustee and its
successors as Pass Through Trustee (and any additional trustee appointed) under
any of the Pass Through Trust Agreements, the Escrow Agent and its successors as
Escrow Agent under the Escrow and Paying Agent Agreements, the Paying Agent and
its successors as Paying Agent under the Escrow and Paying Agent Agreement and
the Subordination Agent and its successors as Subordination Agent under the
Intercreditor Agreement.
(c) This Agreement is not intended to, and shall not, provide any
person not a party hereto (other than the Underwriters and each of the
beneficiaries of Section 6 hereof) with any rights of any nature whatsoever
against any of the parties hereto, and no person not a party hereto (other than
the Underwriters and each of the beneficiaries of Section 6 hereof) shall have
any right, power or privilege in respect of, or have any benefit or interest
arising out of, this Agreement.
SECTION 9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THIS AGREEMENT
IS BEING DELIVERED IN THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized as of
the day and year first above written.
CONTINENTAL AIRLINES, INC.
By __________________________________
Name:
Title:
Address: 0000 Xxxxx Xxxxxx
Xxxx. XXX-XX
Xxxxxxx, XX 00000
Attention: Senior Vice
President-Finance
Facsimile: (000) 000-0000
WILMINGTON TRUST COMPANY,
not in its individual capacity,
except as otherwise provided
herein, but solely as Pass Through
Trustee
By __________________________________
Name:
Title:
Address: Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust
Administration
Facsimile: (000) 000-0000
WILMINGTON TRUST COMPANY,
not in its individual capacity,
except as otherwise provided
herein, but solely as Subordination
Agent
By __________________________________
Name:
Title:
Address: Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust
Administration
Facsimile: (000) 000-0000
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Escrow Agent
By __________________________________
Name:
Title:
Address: 00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Corporate Trust
Department, 3rd Floor
Facsimile: (000) 000-0000
WILMINGTON TRUST COMPANY,
as Paying Agent
By __________________________________
Name:
Title:
Address: Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust
Administration
Facsimile: (000) 000-0000
SCHEDULE I to
NOTE PURCHASE AGREEMENT
ELIGIBLE AIRCRAFT AND SCHEDULED DELIVERY MONTHS
Expected
New Aircraft Type Registration Number Manufacturer's Scheduled
Type Number Serial Number Delivery Month
------------------- ------------------- -------------- --------------
Boeing 737-824 N76269 31588 Oct 2001
Boeing 737-824 N73270 31632 Oct 2001
Boeing 737-824 N35271 31589 Nov 2001
Boeing 737-824 N36272 31590 Nov 2001
Boeing 737-824 N37273 31591 Dec 2001
Boeing 737-824 N37274 31592 Jan 2002
Boeing 737-824 N73275 31593 Feb 2002
Boeing 737-824 N73276 31594 Feb 2002
Boeing 737-824 N37277 31595 Mar 2002
Boeing 737-824 N73278 31596 June 2002
Boeing 737-824 N79279 31597 June 2002
Boeing 737-824 N36280 31598 June 2002
Boeing 737-924 N37408 30125 Oct 2001
Boeing 737-924 N37409 30126 Nov 2001
Boeing 737-924 N75410 30127 Dec 2001
Boeing 737-924 N71411 30128 Jan 2002
Boeing 737-924 N31412 30129 Mar 2002
Boeing 737-924 N37413 30130 May 2002
Boeing 737-924 N30414 30131 June 2002
Boeing 767-424ER N66057 29452 Jan 2002
Boeing 767-424ER N67058 29453 Jan 2002
Boeing 767-424ER N69059 29454 Feb 2002
Boeing 767-424ER N78060 29455 Feb 2002
Boeing 767-424ER N68061 29456 Mar 2002
Boeing 767-424ER N76062 29457 Mar 2002
Boeing 767-424ER N69063 29458 April 2002
Boeing 767-424ER N76064 29459 April 2002
Boeing 767-424ER N76065 29460 May 2002
Boeing 767-424ER N77066 29461 May 2002
Boeing 777-224ER N78017 31679 Mar 2002
Boeing 777-224ER N37018 31680 April 2002
SCHEDULE II to
NOTE PURCHASE AGREEMENT
TRUST SUPPLEMENTS
Trust Supplement dated as of the Issuance Date between the Company and the Pass
Through Trustee in respect of Continental Airlines Pass Through Trust, Series
2001-1A-1-O.
Trust Supplement dated as of the Issuance Date between the Company and the Pass
Through Trustee in respect of Continental Airlines Pass Through Trust, Series
2001-1A-2-O.
Trust Supplement dated as of the Issuance Date between the Company and the Pass
Through Trustee in respect of Continental Airlines Pass Through Trust, Series
2001-1B-O.
SCHEDULE III to
NOTE PURCHASE AGREEMENT
DEPOSIT AGREEMENTS
Deposit Agreement (Class A-1) dated as of the Issuance Date between the
Depositary and the Escrow Agent.
Deposit Agreement (Class A-2) dated as of the Issuance Date between the
Depositary and the Escrow Agent.
Deposit Agreement (Class B) dated as of the Issuance Date between the Depositary
and the Escrow Agent.
SCHEDULE IV to
NOTE PURCHASE AGREEMENT
ESCROW AND PAYING AGENT AGREEMENTS
Escrow and Paying Agent Agreement (Class A-1) dated as of the Issuance Date
among the Escrow Agent, the Underwriters, the Pass Through Trustee and the
Paying Agent.
Escrow and Paying Agent Agreement (Class A-2) dated as of the Issuance Date
among the Escrow Agent, the Underwriters, the Pass Through Trustee and the
Paying Agent.
Escrow and Paying Agent Agreement (Class B) dated as of the Issuance Date among
the Escrow Agent, the Underwriters, the Pass Through Trustee and the Paying
Agent.
SCHEDULE V TO
NOTE PURCHASE AGREEMENT
MANDATORY DOCUMENT TERMS
The terms "Trust Indenture Form," "Lease Form" and "Participation Agreement
Form" shall have the respective meanings specified in Schedule VI to the Note
Purchase Agreement.
1. May not modify in any material adverse respect the Granting Clause of the
Trust Indenture Form so as to deprive the Note Holders of a first priority
security interest in and mortgage lien on the Aircraft and the Lease or to
eliminate any of the obligations secured thereby or otherwise modify in
any material adverse respect as regards the interests of the Note Holders,
the Subordination Agent, the Liquidity Providers or the Mortgagee the
provisions of Article II or III or Section 4.02, 4.03, 4.04, 5.02, 5.06,
9.01(b), 10.04, 10.11 or 10.12 of the Trust Indenture Form.
2. May not modify in any material adverse respect as regards the interests of
the Note Holders, the Subordination Agent, the Liquidity Providers or the
Mortgagee the provisions of Section 3.2.1(e), 3.3(c), 4.7, the final
sentence of 7.1.1, 10.3.1(d)(ii), 13.3, 16, 18.3 or 18.7(a) of the Lease
Form or otherwise modify the terms of the Lease Form so as to deprive the
Mortgagee of rights expressly granted to the "Mortgagee" therein.
3. May not modify in any material adverse respect as regards the interests of
the Note Holders, the Subordination Agent, the Liquidity Providers or the
Mortgagee the provisions of Section 5.1.9, 5.1.10, 5.1.11, 5.1.12, 7.5,
12, 15.8(a) or 15.9 of the Participation Agreement Form or of the
provisions of Section 5.1.2(xxiii) or 10.1.1(a)(iv) of the Participation
Agreement Form so as to eliminate the requirement to deliver to the Loan
Participant or the Mortgagee, as the case may be, the legal opinions to be
provided to such Persons thereunder (recognizing that the lawyers
rendering such opinions may be changed) or of the provisions of Section
7.6.11(a)(ii) of the Participation Agreement Form as regards the rights of
the Mortgagee thereunder or otherwise modify the terms of the
Participation Agreement Form to deprive the Trustees, the Subordination
Agent, the Liquidity Providers or the Mortgagee of any indemnity or right
of reimbursement in its favor for Expenses or Taxes.
4. May not modify, in any material adverse respect as regards the interests
of the Note Holders, the Subordination Agent, the Liquidity Providers or
the Mortgagee, the definition of "Make Whole Amount" in Annex A to the
Participation Agreement Form.
Notwithstanding the foregoing, any such Mandatory Document Term may be
modified to correct or supplement any such provision which may be
defective or to cure any ambiguity or correct any mistake, PROVIDED that
any such action shall not materially adversely affect the interests of the
Note Holders, the Subordination Agent, the Liquidity Providers, the
Mortgagee or the Certificateholders.
As of the Issuance Date, Continental expects subsequently to privately place
Class C Certificates, the proceeds of which will be used to acquire Series C
Equipment Notes. The Series C Equipment Notes are expected to have the terms
described under "Description of the Certificates - Expected Issuance of Class C
Certificates" in the Prospectus Supplement. Accordingly, the Financing
Agreements may be revised to give effect to the following terms, which revisions
shall not be deemed to violate the Mandatory Document Terms:
1. The Series C Equipment Notes may have a floating rate of interest,
calculated on the basis of a 360 day year and actual days elapsed, and
provide for alternative funding bases on the occurrence of specified
events.
2. Principal and interest on the Series C Equipment Notes may be paid on
March 15, June 15, September 15 and December 15.
3. If the Series C Equipment Notes are redeemed on other than a scheduled
payment date, the Series C Note Holder may be entitled to receive breakage
costs relating to its assumed source of funding, including commercial
paper or LIBOR breakage costs, which will be secured obligations under the
Indentures subordinated to amounts payable on the Series X-0, X-0 and B
Equipment Notes and, in the case of a Leased Aircraft, payable by the
Lessee.
4. The Note Holder of the Series C Equipment Notes may be entitled to receive
compensation for certain increased costs, including relating to certain
changes in law, reserve and capital charges and withholding taxes, which
will be secured obligations under the Indentures subordinated to amounts
payable on the Series X-0, X-0 and B Equipment Notes and, in the case of a
Leased Aircraft, payable by the Lessee.
5. The Series C Equipment Notes may be redeemable, at the option of the
issuer, without the redemption of the other Equipment Notes issued under
the applicable Indenture in connection with a refinancing of the Series C
Equipment Notes, subject to obtaining Rating Agency Confirmation with
respect to such redemption.
SCHEDULE VI TO
NOTE PURCHASE AGREEMENT
MANDATORY ECONOMIC TERMS
EQUIPMENT NOTES
Obligor: Continental or an Owner Trust
Maximum Principal Amount:
The aggregate principal amount of all the Series X-0, X-0 and B Equipment Notes
issued with respect to an Aircraft shall not exceed the amounts set forth in the
following table:
MAXIMUM
PRINCIPAL
AMOUNT OF
SERIES A-1,
MANUFACTURER'S A-2 AND B
SERIAL EQUIPMENT
AIRCRAFT TYPE NUMBER NOTES
Boeing 737-824 31588 $26,884,000
Boeing 737-824 31632 26,884,000
Boeing 737-824 31589 26,931,667
Boeing 737-824 31590 26,931,667
Boeing 737-824 31591 26,981,167
Boeing 737-824 31592 27,120,500
Boeing 737-824 31593 27,168,167
Boeing 737-824 31594 27,168,167
Boeing 737-824 31595 27,215,833
Boeing 737-824 31596 27,417,500
Boeing 737-824 31597 27,417,500
Boeing 737-824 31598 27,417,500
Boeing 737-924 30125 27,694,333
Boeing 737-924 30126 27,743,833
Boeing 737-924 30127 27,791,500
Boeing 737-924 30128 27,907,000
Boeing 737-924 30129 28,022,500
Boeing 737-924 30130 28,143,500
Boeing 737-924 30131 28,198,500
MAXIMUM
PRINCIPAL
AMOUNT OF
SERIES A-1,
MANUFACTURER'S A-2 AND B
SERIAL EQUIPMENT
AIRCRAFT TYPE NUMBER NOTES
Boeing 767-424ER 29452 $55,104,500
Boeing 767-424ER 29453 55,104,500
Boeing 767-424ER 29454 55,220,000
Boeing 767-424ER 29455 55,220,000
Boeing 767-424ER 29456 55,335,500
Boeing 767-424ER 29457 55,335,500
Boeing 767-424ER 29458 55,451,000
Boeing 767-424ER 29459 55,451,000
Boeing 767-424ER 29460 55,561,000
Boeing 767-424ER 29461 55,561,000
Boeing 777-224ER 31679 76,204,333
Boeing 777-224ER 31680 76,525,167
The original aggregate principal amount of all Series X-0, X-0 and B Equipment
Notes for all Aircraft shall not exceed the aggregate face amount of all
Certificates issued on the Issuance Date. The original aggregate principal
amount of all Series X-0, X-0 and B Equipment Notes shall not exceed the
original aggregate face amount of all Certificates of the related Class issued
on the Issuance Date.
The Loan to Aircraft Value for the Series X-0, X-0 and B Equipment Notes issued
in respect of each Aircraft computed on the date of issuance thereof (with (i)
the principal amount of the series of Equipment Notes that rank equally or
senior aggregated for purposes of the calculation and (ii) the value for such
Aircraft for these purposes equal to the value ("the ASSUMED APPRAISED VALUE")
for such Aircraft set forth in the Prospectus Supplement under "Description of
the Aircraft and the Appraisals--The Appraisals" in the column "Appraised
Value") and thereafter based on such value after giving effect to the
Depreciation Assumption (as defined in the Prospectus Supplement in "Description
of the Equipment Notes--Loan to Value Ratios of Equipment Notes")) will not
exceed as of the issuance date of such Equipment Notes and any December 15
Regular Distribution Date thereafter (assuming no default in the payment of the
Equipment Notes and after giving effect to scheduled payments) the Loan to
Aircraft Value for such series of Equipment Notes for such Aircraft set forth in
the applicable table in Appendix 1 to this Schedule (with the maximum at
issuance the same as the maximum at December 15, 2002).
As of the Delivery Period Termination Date and each December 15 Regular
Distribution Date thereafter, the Loan to Aircraft Value for each Class of
Certificates (computed (i) after aggregating the principal amount of the class
of Certificates that rank equally or senior and (ii) as of any such date on the
basis of the Assumed Appraised Value of all Aircraft that have been financed
pursuant to the Note Purchase Agreement and the Depreciation Assumption)will not
exceed (assuming no default in the payment of the Equipment Notes and after
giving effect to scheduled payments) the percentages set forth in the following
table for the applicable date:
CLASS A-1 CLASS A-2 CLASS B
DATE CERTIFICATES CERTIFICATES CERTIFICATES
--------------------------------------------------- -------------- -------------- --------------
December 15, 2002.................................. 40.1% 40.1% 53.0%
December 15, 2003.................................. 39.2% 39.2% 52.1%
December 15, 2004.................................. 38.4% 38.4% 51.0%
December 15, 2005.................................. 37.8% 37.8% 50.2%
December 15, 2006.................................. 37.4% 37.4% 49.7%
December 15, 2007.................................. 36.9% 36.9% 49.1%
December 15, 2008.................................. 36.7% 36.7% 48.8%
December 15, 2009.................................. 36.4% 36.4% 48.4%
December 15, 2010.................................. 35.9% 35.9% 47.8%
December 15, 2011 ................................. 35.3% 35.3% 47.0%
December 15, 2012.................................. 35.3% 35.3% 46.1%
December 15, 2013.................................. 36.9% 36.9% 45.0%
December 15, 2014.................................. 38.6% 38.6% 43.7%
December 15, 2015.................................. 39.4% 39.4% 42.1%
December 15, 2016.................................. 37.5% 37.5% N/A
December 15, 2017.................................. 34.6% 34.6% N/A
December 15, 2018.................................. 33.0% 33.0% N/A
December 15, 2019.................................. 31.1% 31.1% N/A
December 15, 2020.................................. 23.5% 23.5% N/A
____________
If the Delivery Period Termination Date is not a Regular Distribution Date, the
LTV applicable to the Delivery Period Termination Date shall be the LTV for the
next preceding Regular Distribution Date, unless the Delivery Period Termination
Date is before December 15, 2002, in which case the LTV for December 15, 2002,
shall apply.
Initial Average Life (in years) from the Issuance Date for any Aircraft:
Series A-1: not more than 14.0 years
Series B: not more than 11.2 years
AVERAGE LIFE (IN YEARS)
As of the Delivery Period Termination Date, the average life of the Class
A-1 Certificates and the Class B Certificates shall not be more than 11.9
years and 8.4 years, respectively, from the Issuance Date (computed
without regard to the acceleration of any Equipment Notes and after giving
effect to any special distribution on the Certificates thereafter required
in respect of unused Deposits).
FINAL MATURITY DATE
There shall be a payment of principal scheduled on at least one Series A-1
Equipment Note on June 15, 2021, and no Series A-1 Equipment Note shall
mature after such date.
Series A-2: June 15, 2011, with no scheduled amortization
There shall be a payment of principal scheduled on at least one Series B
Equipment Note on December 15, 2015, and no Series B Equipment Note shall
mature after such date.
As of the Delivery Period Termination Date (assuming Equipment Notes are
acquired by the Pass Through Trusts for all of the Aircraft), the aggregate
principal amount of the Series A-2 Equipment Notes shall equal the original face
amount of the Class A-2 Certificates.
Debt Rate (computed on the basis of a 360-day year consisting of twelve 30-day
months, payable semi-annually in arrears)
Series A-1: 6.703%
Series A-2: 6.503%
Series B: 7.373%
Payment Due Rate: Debt Rate plus 2% per annum
Payment Dates: June 15 and December 15
Make-Whole Premiums: As provided in Article II of the form of
Trust Indenture marked as Exhibit A-3
or A-6 (whichever shall be utilized for a
Leased Aircraft) of the Note Purchase
Agreement (the "TRUST INDENTURE FORM") or the
Owned Aircraft Indenture marked as Exhibit
C-2 of the Note Purchase Agreement (the
"OWNED INDENTURE FORM")
Redemption and Purchase: As provided in Article II of the Trust
Indenture Form
All-risk hull insurance: In the case of Leased Aircraft, not less than
Stipulated Loss Value and, in the case of
Owned Aircraft, not less than the unpaid
principal amount of the Series X-0, X-0 and B
Equipment Notes, together with six months of
interest accrued thereon, subject to
Continental's right to self-insure on terms
no more favorable to Continental in any
material respect than those set forth in
Section G of Annex D to the Lease Form, in
the case of Leased Aircraft, or Section G of
Annex B to the Owned Indenture Form, in the
case of Owned Aircraft
LEASE
Term: The Base Lease Term shall expire by its terms
on or after final maturity date of the latest
maturity date of the related Equipment Notes
Lease Payment Dates: Not less frequently than June 15 and December
15
Minimum Rent: Basic Rent due and payable on each Payment
Date shall be at least sufficient to pay in
full, as of such Payment Date (assuming
timely payment of the related Equipment Notes
prior to such Date), the aggregate principal
amount of scheduled installments due on the
related Equipment Notes outstanding on such
Payment Date, together with accrued and
unpaid interest thereon.
Supplemental Rent: Sufficient to cover the sums described in
clauses (a) through (d) of such term as
defined in Annex A to the form of Lease (the
"LEASE FORM") marked as Exhibit A-2 of the
Note Purchase Agreement
Stipulated Loss Value: At all times equal to or greater than the
then outstanding principal amount of the
related Equipment Notes together with accrued
interest thereon
Termination Value: At all times equal to or greater than the
then outstanding principal amount of the
related Equipment Notes together with accrued
interest thereon
Minimum Liability As set forth in Schedule 1 to the
Insurance Amount: Lease Form.
Payment Due Rate: As set forth in Schedule 1 to the Lease Form.
SLV Rate: As set forth in Schedule 1 Lease Form.
PARTICIPATION AGREEMENT
Mortgagee, Subordination Agent, Liquidity Provider, Pass Through Trustees,
Escrow Agents and Note Holders indemnified against Expenses and Taxes to the
extent set forth in Section 9 of the form of the Participation Agreement (the
"PARTICIPATION AGREEMENT FORM") marked as Exhibit A-1 to the Note Purchase
Agreement
ANNEX A to
NOTE PURCHASE AGREEMENT
DEFINITIONS
"ACT" means 49 U.S.C.ss.ss.40101-46507.
"AFFILIATE" means, with respect to any person, any other person directly or
indirectly controlling, controlled by or under common control with such person.
For purposes of this definition, "control" means the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such person, whether through the ownership of voting securities or by contract
or otherwise and "controlling," "controlled by" and "under common control with"
have correlative meanings.
"AIRCRAFT PURCHASE AGREEMENT" means, in the case of the Boeing 767-424ER
Aircraft, the Purchase Agreement No. 2060, dated as of October 10, 1997, in the
case of the Boeing 777-224ER Aircraft, the Purchase Agreement No. 2061, dated as
of October 10, 1997 or, in the case of the Boeing 737-924 Aircraft and the
Boeing 737-824 Aircraft, the Purchase Agreement No. 1951 dated July 23, 1996, as
amended, each between the Company and the Manufacturer (including all exhibits
thereto, together with all letter agreements entered into that by their terms
constitute part of any such Purchase Agreement); and "AIRCRAFT PURCHASE
AGREEMENTS" means all such agreements.
"AIRCRAFT PURCHASE AGREEMENT ASSIGNMENT" means a Purchase Agreement and Engine
Warranties Assignment substantially in the form of Exhibit A-4-I or A-4-II to
the Note Purchase Agreement.
"ASSUMED AMORTIZATION SCHEDULE" means the amortization schedule set forth on
page S-36 of the Prospectus Supplement.
"AVERAGE LIFE DATE" means, for any Equipment Note, the date which follows the
time of determination by a period equal to the Remaining Weighted Average Life
of such Equipment Note.
"BANKRUPTCY CODE" means the United States Bankruptcy Code, 11 U.S.C.ss.ss.102 ET
SEQ.
"BASIC PASS THROUGH TRUST AGREEMENT" means the Pass Through Trust Agreement,
dated September 25, 1997, between the Company and Pass Through Trustee, as such
agreement may be supplemented, amended or modified, but does not include any
Trust Supplement.
"BUSINESS DAY" means any day, other than a Saturday, Sunday or other day on
which commercial banks are authorized or required by law to close in New York,
New York, Houston, Texas, Wilmington, Delaware or Salt Lake City, Utah.
"CERTIFICATES" has the meaning set forth in the third recital to the Note
Purchase Agreement.
"CERTIFICATEHOLDER" means the Person in whose name a Certificate is registered
in the Register.
"CLASS" means the class of Certificates issued by each Pass Through Trust.
"CLASS A-1 CERTIFICATES" means Certificates issued by the Class A-1 Pass Through
Trust.
"CLASS A-2 CERTIFICATES" means Certificates issued by the Class A-2 Pass Through
Trust.
"CLASS B CERTIFICATES" means Certificates issued by the Class B Pass Through
Trust.
"CLASS C CERTIFICATES" has the meaning set forth in the tenth recital to the
Note Purchase Agreement.
"CLASS D CERTIFICATES" means pass through certificates issued by the Continental
Airlines Pass Through Trust, Series 2001-1D, if any.
"COMPANY" means Continental Airlines, Inc., a Delaware corporation.
"CORPORATE TRUST OFFICE" with respect to any Pass Through Trustee or any Loan
Trustee, means the office of such trustee in the city at which at any particular
time its corporate trust business shall be principally administered.
"CUT-OFF DATE" means the earlier of (a) the day after the Delivery Period
Termination Date and (b) the date on which a Triggering Event occurs.
"DELIVERY PERIOD TERMINATION DATE" means the earlier of (a) September 30, 2002,
or, if the Equipment Notes relating to all of the New Aircraft (or Substitute
Aircraft in lieu thereof) have not been purchased by the Pass Through Trustees
on or prior to such date due to any reason beyond the control of the Company and
not occasioned by the Company's fault or negligence, December 31, 2002 (provided
that, if a labor strike occurs or continues at the Manufacturer after the
Issuance Date on or prior to either or both of such dates referred to in this
clause (a), such date or dates on or following the Issuance Date shall be
extended by adding thereto the number of days that such strike continued in
effect after the Issuance Date) and (b) the date on which Equipment Notes issued
with respect to all of the New Aircraft (or Substitute Aircraft in lieu thereof)
have been purchased by the Pass Through Trustees in accordance with the Note
Purchase Agreement.
"DELIVERY DATE" means the Business Day on which a New Aircraft is delivered to
and accepted by the Company.
"DEPOSIT" has the meaning set forth in the fifth recital to the Note Purchase
Agreement.
"DEPOSIT AGREEMENT" has the meaning set forth in the fifth recital to the Note
Purchase Agreement.
"DEPOSITARY" means Credit Suisse First Boston, a banking institution organized
under the laws of Switzerland, acting through its New York branch.
"DEPOSIT MAKE-WHOLE PREMIUM" means, with respect to the distribution to holders
of Class A-1 or B Certificates of a portion of the Deposits held for them if
Class C Certificates are not issued, as of any date of determination, an amount
equal to the excess, if any, of (a) the present value of the excess of (i) the
scheduled payment of principal and interest to maturity of the Equipment Notes,
assuming the maximum principal amount thereof were issued, on each remaining
Regular Distribution Date for such Class under the Assumed Amortization Schedule
over (ii) the scheduled payment of principal and interest to maturity of the
Equipment Notes in the amount of the remaining Deposits for such Class on each
such Regular Distribution Date under the Assumed Amortization Schedule (assuming
a pro rata reduction in the amortization amounts), such present value computed
by discounting such excess on a semiannual basis on each Regular Distribution
Date (assuming a 360-day year of twelve 30-day months) using a discount rate
equal to the Treasury Yield over (b) the amount of such Deposits to be
distributed to the holders of such Certificates plus accrued and unpaid interest
to but excluding the date of determination from and including the preceding
Regular Distribution Date (or if such date of determination precedes the first
Regular Distribution Date, the date of issuance of the Certificates). The date
of determination of the Deposit Make-Whole Amount shall be the third Business
Day prior to the applicable distribution date.
"ELIGIBLE AIRCRAFT" has the meaning set forth in the second recital to the Note
Purchase Agreement.
"EQUIPMENT NOTES" means and includes any equipment notes issued under any
Indenture in the form specified in Section 2.01 thereof (as such form may be
varied pursuant to the terms of such Indenture) and any Equipment Note issued
under any Indenture in exchange for or replacement of any other Equipment Note.
"ESCROW AGENT" has the meaning set forth in the first paragraph of the Note
Purchase Agreement.
"ESCROW AND PAYING AGENT AGREEMENT" has the meaning set forth in the fifth
recital to the Note Purchase Agreement.
"FAA" means the Federal Aviation Administration of the United States.
"FINAL WITHDRAWAL" with respect to each Escrow and Paying Agent Agreement, has
the meaning set forth in Section 1.02 thereof.
"FINANCING AGREEMENTS" means, collectively, the Lease Financing Agreements and
the Owner Financing Agreements.
"GOVERNMENT ENTITY" means (a) any federal, state, provincial or similar
government, and any body, board, department, commission, court, tribunal,
authority, agency or other instrumentality of any such government or otherwise
exercising any executive, legislative, judicial, administrative or regulatory
functions of such government or (b) any other government entity having
jurisdiction over any matter contemplated by the Operative Agreements or
relating to the observance or performance of the obligations of any of the
parties to the Operative Agreements.
"INDENTURES" means, collectively, the Leased Aircraft Indentures, the Special
Indentures and the Owned Aircraft Indentures.
"INTERCREDITOR AGREEMENT" has the meaning set forth in the ninth recital to the
Note Purchase Agreement.
"ISSUANCE DATE" means the date of the original issuance of the Certificates.
"LAW" means (a) any constitution, treaty, statute, law, decree, regulation,
order, rule or directive of any Government Entity, and (b) any judicial or
administrative interpretation or application of, or decision under, any of the
foregoing.
"LEASE" means a Lease Agreement substantially in the form of Exhibit A-2 to the
Note Purchase Agreement.
"LEASE FINANCING AGREEMENTS" means, collectively, the Aircraft Purchase
Agreement Assignment, the Leased Aircraft Participation Agreement, the Lease,
the Leased Aircraft Indenture (or, in a case where The Boeing Company or any of
its Affiliates is the Owner Participant and if so specified in the Delivery
Notice, the Special Indenture), the Equipment Notes issued thereunder and the
Trust Agreement relating to the financing of a Leased Aircraft.
"LEASED AIRCRAFT" means a New Aircraft subject to a Lease.
"LEASED AIRCRAFT INDENTURE" means a Trust Indenture and Mortgage substantially
in the form of Exhibit A-3 to the Note Purchase Agreement.
"LEASED AIRCRAFT PARTICIPATION AGREEMENT" means a Participation Agreement
substantially in the form of Exhibit A-1 to the Note Purchase Agreement.
"LIQUIDITY FACILITY" has the meaning set forth in the ninth recital to the Note
Purchase Agreement.
"LIQUIDITY PROVIDER" has the meaning set forth in the ninth recital to the Note
Purchase Agreement.
"LOAN TRUSTEE" means the "Mortgagee" as defined in the Financing Agreements.
"MANDATORY DOCUMENT TERMS" means the terms set forth on Schedule V to the Note
Purchase Agreement.
"MANDATORY ECONOMIC TERMS" means the terms set forth on Schedule VI to the Note
Purchase Agreement.
"MANUFACTURER" means The Boeing Company, a Delaware corporation, solely in its
capacity as manufacturer or seller of New Aircraft.
"NEW AIRCRAFT" has the meaning set forth in the second recital to the Note
Purchase Agreement.
"NOTE PURCHASE AGREEMENT" means the Note Purchase Agreement to which this Annex
A is attached.
"NOTICE OF PURCHASE WITHDRAWAL" with respect to each Deposit Agreement, has the
meaning set forth in Section 2.3 thereof.
"OPERATIVE AGREEMENTS" means, collectively, the Pass Through Trust Agreements,
the Escrow and Paying Agent Agreements, the Deposit Agreements, the Liquidity
Facilities, the Intercreditor Agreement, the Trust Agreements, the Equipment
Notes, the Certificates and the Financing Agreements.
"OWNED AIRCRAFT" means a New Aircraft subject to an Owned Aircraft Indenture.
"OWNED AIRCRAFT INDENTURE" means a Trust Indenture and Mortgage substantially in
the form of Exhibit C-2 to the Note Purchase Agreement.
"OWNED AIRCRAFT PARTICIPATION AGREEMENT" means a Participation Agreement
substantially in the form of Exhibit C-1 to the Note Purchase Agreement.
"OWNER FINANCING AGREEMENTS" means, collectively, the Owned Aircraft
Participation Agreement, the Owned Aircraft Indenture and the Equipment Notes
issued thereunder.
"OWNER PARTICIPANT" means, with respect to any Leased Aircraft, the Person named
as the Owner Participant in the Participation Agreement with respect to such
Leased Aircraft.
"OWNER TRUST" means with respect to any Leased Aircraft, the trust created by
the "Trust Agreement" referred to in the Leased Aircraft Indenture or Special
Indenture related thereto.
"OWNER TRUSTEE" means with respect to any Leased Aircraft, the "Owner Trustee"
party to the "Trust Agreement" referred to in the Leased Aircraft Indenture or
Special Indenture related thereto.
"PARTIAL WITHDRAWAL" has the meaning set forth in Section 4(a)(i) of the Note
Purchase Agreement.
"PARTIAL WITHDRAWAL DIRECTION" has the meaning set forth in Section 4(a)(i) of
the Note Purchase Agreement.
"PARTICIPATION AGREEMENTS" means, collectively, the Leased Aircraft
Participation Agreements and the Owned Aircraft Participation Agreements.
"PASS THROUGH TRUST" has the meaning set forth in the third recital to the Note
Purchase Agreement.
"PASS THROUGH TRUST AGREEMENT" means each of the three separate Trust
Supplements, together in each case with the Basic Pass Through Trust Agreement,
each dated as of the Issuance Date, by and between the Lessee and Pass Through
Trustee.
"PASS THROUGH TRUSTEE" has the meaning set forth in the first paragraph of the
Note Purchase Agreement.
"PAYING AGENT" has the meaning set forth in the first paragraph of the Note
Purchase Agreement.
"PERSON" means any individual, firm, partnership, joint venture, trust, trustee,
Government Entity, organization, association, corporation, limited liability
company, government agency, committee, department, authority and other body,
corporate or incorporate, whether having distinct legal status or not, or any
member of any of the same.
"PROSPECTUS SUPPLEMENT" means the Prospectus Supplement, dated April 4, 2001, to
the Prospectus, dated March 23, 2001, of the Company relating to the offering of
the Certificates.
"QUALIFIED OWNER PARTICIPANT" means any bank, trust company, insurance company,
financial institution, partnership, limited liability company or corporation
(other than, without the Company's consent, a commercial air carrier, a
commercial aircraft operator, a freight forwarder or Affiliate of any of the
foregoing), in each case with a combined capital and surplus or net worth of at
least $50,000,000.
"RATING AGENCIES" means, collectively, at any time, each nationally recognized
rating agency which shall have been requested to rate the Certificates and which
shall then be rating the Certificates. The initial Rating Agencies will be
Xxxxx'x Investors Service, Inc. and Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc.
"RATING AGENCY CONFIRMATION" means, with respect to (1) any Financing Agreement
that has been modified in any material respect from the forms thereof attached
to the Note Purchase Agreement, (2) the terms of the Class C Certificates, (3)
the distribution of Deposits in connection with the failure to issue Class C
Certificates, (4) a Substitute Aircraft or (5) a Sale/Leaseback Transaction, a
written confirmation from each of the Rating Agencies that (1) the use of such
Financing Agreement with such modifications, (2) the terms of the Class C
Certificates, (3) upon effectiveness of such distribution of Deposits in
connection with the failure to issue Class C Certificates, (4) the substituting
of such Substitute Aircraft for an Eligible Aircraft or (5) the consummation of
such Sale/Leaseback Transaction, respectively, whichever of the foregoing shall
in a particular case require Rating Agency Confirmation, would not result in (i)
a reduction of the rating for any Class of Certificates below the then current
rating for such Class of Certificates or (ii) a withdrawal or suspension of the
rating of any Class of Certificates.
"REGISTER" means the register maintained pursuant to Sections 3.04 and 7.12 of
the Basic Pass Through Trust Agreement with respect to each Pass Through Trust.
"REGULAR DISTRIBUTION DATES" shall mean June 15 and December 15 of each year,
commencing December 15, 2001.
"REMAINING WEIGHTED AVERAGE LIFE" means, on a given date with respect to any
Equipment Note, the number of days equal to the quotient obtained by dividing
(a) the sum of each of the products obtained by multiplying (i) the amount of
each then remaining scheduled payment of principal of such Equipment Note by
(ii) the number of days from and including such determination date to but
excluding the date on which such payment of principal is scheduled to be made,
by (b) the then outstanding principal amount of such Equipment Note.
"SALE/LEASEBACK TRANSACTION" has the meaning set forth in Section 1(k) of the
Note Purchase Agreement.
"SECTION 1110" means 11 U.S.C. ss. 1110 of the Bankruptcy Code or any successor
or analogous Section of the federal bankruptcy Law in effect from time to time.
"SERIES A-1 EQUIPMENT NOTES" means Equipment Notes issued under an Indenture and
designated as "Series A-1" thereunder.
"SERIES A-2 EQUIPMENT NOTES" means Equipment Notes issued under an Indenture and
designated as "Series A-2" thereunder.
"SERIES B EQUIPMENT NOTES" means Equipment Notes issued under an Indenture and
designated as "Series B" thereunder.
"SERIES C EQUIPMENT NOTES" means Equipment Notes issued under an Indenture and
designated as "Series C" thereunder.
"SERIES D EQUIPMENT NOTES" means Equipment Notes issued under an Indenture and
designated as "Series D" thereunder, if any.
"SPECIAL INDENTURE" means a Trust Indenture and Mortgage substantially in the
form of Exhibit A-6 to the Note Purchase Agreement.
"SUBORDINATION AGENT" has the meaning set forth in the first paragraph of the
Note Purchase Agreement.
"SUBSTITUTE AIRCRAFT" has the meaning set forth in Section 1(g) of the Note
Purchase Agreement.
"TAXES" means all license, recording, documentary, registration and other
similar fees and all taxes, levies, imposts, duties, charges, assessments or
withholdings of any nature whatsoever imposed by any Taxing Authority, together
with any penalties, additions to tax, fines or interest thereon or additions
thereto.
"TAXING AUTHORITY" means any federal, state or local government or other taxing
authority in the United States, any foreign government or any political
subdivision or taxing authority thereof, any international taxing authority or
any territory or possession of the United States or any taxing authority
thereof.
"TREASURY YIELD" means, as of any date of determination, with respect to any
Equipment Note (utilizing the Assumed Amortization Schedule applicable thereto),
the interest rate (expressed as a decimal and, in the case of United States
Treasury bills, converted to a bond equivalent yield) determined to be the per
annum rate equal to the semi-annual yield to maturity for United States Treasury
securities maturing on the Average Life Date of such Equipment Note and trading
in the public securities markets either as determined by interpolation between
the most recent weekly average yield to maturity for two series of United States
Treasury securities, trading in the public securities markets, (A) one maturing
as close as possible to, but earlier than, the Average Life Date of such
Equipment Note and (B) the other maturing as close as possible to, but later
than, the Average Life Date of such Equipment Note, in each case as published in
the most recent H.15(519) or, if a weekly average yield to maturity for United
States Treasury securities maturing on the Average Life Date of such Equipment
Note is reported on the most recent H.15(519), such weekly average yield to
maturity as published in such H.15(519). The "most recent H.15(519)" means the
H.15(519) most recently published prior to the close of business on the date of
determination of the Deposit Make-Whole Premium.
"TRIGGERING EVENT" has the meaning assigned to such term in the Intercreditor
Agreement.
"TRUST AGREEMENT" means a Trust Agreement substantially in the form of Exhibit E
to the Note Purchase Agreement.
"TRUST SUPPLEMENT" means an agreement supplemental to the Basic Pass Through
Trust Agreement pursuant to which (i) a separate trust is created for the
benefit of the holders of the Pass Through Certificates of a class, (ii) the
issuance of the Pass Through Certificates of such class representing fractional
undivided interests in such trust is authorized and (iii) the terms of the Pass
Through Certificates of such class are established.
"UNDERWRITERS" has the meaning set forth in the fourth recital to the Note
Purchase Agreement.
"WTC" has the meaning set forth in the first paragraph of the Note Purchase
Agreement.
EXHIBIT A-1 to
NOTE PURCHASE AGREEMENT
FORM OF LEASED AIRCRAFT PARTICIPATION AGREEMENT
(Filed Separately)
EXHIBIT A-2 to
NOTE PURCHASE AGREEMENT
FORM OF LEASE
(Filed Separately)
EXHIBIT A-3 to
NOTE PURCHASE AGREEMENT
FORM OF LEASED AIRCRAFT INDENTURE
(Filed Separately)
EXHIBIT A-4-I to
NOTE PURCHASE AGREEMENT
FORM OF AIRCRAFT PURCHASE AGREEMENT ASSIGNMENT - CFM
-------------------------------------------
CONFIDENTIAL: SUBJECT TO RESTRICTIONS ON
DISSEMINATION SET FORTH IN SECTION 8 OF THE
PARTICIPATION AGREEMENT (AS DEFINED HEREIN)
-------------------------------------------
PURCHASE AGREEMENT AND ENGINE WARRANTIES ASSIGNMENT ___
PURCHASE AGREEMENT AND ENGINE WARRANTIES ASSIGNMENT ___, dated as of
__________, between Continental Airlines, Inc., a Delaware corporation
("Assignor"), and First Security Bank, National Association, a national banking
association, not in its individual capacity but solely as Owner Trustee
("Assignee") under Trust Agreement ___ dated as of __________ (the "Trust
Agreement"), between the Owner Participant named therein and Assignee, in its
individual capacity, and otherwise not in its individual capacity but solely as
trustee thereunder.
Assignor and Manufacturer (as such term and other capitalized terms
are hereinafter defined) are parties to the Purchase Agreement, providing, among
other things, for the manufacture and sale by Manufacturer or Manufacturer's
wholly owned subsidiary to Assignor of certain aircraft, engines and related
equipment, including the Aircraft. Assignor and Engine Manufacturer are parties
to the General Terms Agreement, containing, among other terms and conditions,
the Engine Warranties.
Assignee wishes to acquire the Aircraft and Assignor, on the terms
and conditions hereinafter set forth, is willing to assign to Assignee certain
of Assignor's rights and interests under the Purchase Agreement and the General
Terms Agreement and Assignee is willing to accept such assignment, as
hereinafter set forth.
AGREEMENTS
The parties hereto agree as follows:
Section 1. DEFINITIONS. For all purposes of this Assignment, except
as otherwise expressly provided or unless the context otherwise requires, the
following terms shall have the following meanings:
AIRCRAFT - The Boeing Model 737-___ aircraft bearing Manufacturer's
Serial No. _______ and U.S. Registration No. __________, to be financed pursuant
to the Participation Agreement, including the Engines.
ENGINES - Two CFM Model ________ series engines bearing
manufacturer's serial numbers ________ and ________, respectively, installed on
the Aircraft.
ENGINE MANUFACTURER - CFM International, Inc., a Delaware
corporation, and its successors and assigns.
ENGINE WARRANTIES - Engine Manufacturer's "New Engine Warranty,"
"New Parts Warranty," "Ultimate Life Warranty" and "Campaign Change Warranty,"
as set forth in the Engine Manufacturer's Engine Product Support Plan which
forms a part of the General Terms Agreement, and as limited by the applicable
terms of the General Terms Agreement and such Engine Product Support Plan.
GENERAL TERMS AGREEMENT - The Agreement No. 6-7075, dated as of June
10, 1985, by and between Engine Manufacturer and Assignor, including the "Engine
Product Support Plan" at Exhibit B thereto, insofar as such Engine Product
Support Plan relates to the Engine Warranties, but excluding any and all letter
agreements attached thereto, to the extent that such General Terms Agreement and
such Exhibit relate to the Engines, as such General Terms Agreement may
hereafter be amended, supplemented and modified to the extent permitted by the
terms of this Assignment to the extent relating to the Engines.
LEASE - The Lease Agreement ___, dated as of __________, as at any
time amended, supplemented and modified, between Assignee, as lessor, and
Assignor, as lessee, providing for the lease of the Aircraft.
MANUFACTURER - The Boeing Company, a Delaware corporation, and its
successors and assigns.
PARTICIPATION AGREEMENT - The Participation Agreement ___, dated as
of ___________, among Assignor, the Participants, Assignee and Mortgagee, as at
any time amended, supplemented and modified.
PURCHASE AGREEMENT - Purchase Agreement No. 1951, dated July 23,
1996, between Manufacturer and Assignor, providing, among other things, for the
manufacture and sale by Manufacturer to Assignor of certain Boeing Model 737
aircraft (including the Aircraft) and including as part thereof Exhibits A, B,
D, E and F thereto, but excluding all other exhibits and letter and supplemental
agreements, to the extent that such Purchase Agreement and such Exhibits relate
to the Aircraft, as such Purchase Agreement may hereafter be amended,
supplemented and modified to the extent permitted by the terms of this
Assignment.
Capitalized terms used but not defined herein shall have the
respective meanings set forth or incorporated by reference, and shall be
construed and interpreted in the manner described, in the Participation
Agreement.
Section 2. ASSIGNMENT. Assignor does hereby sell, assign, transfer
and set over unto Assignee and its successors and permitted assigns all of
Assignor's rights and interests in and to the Purchase Agreement, as and only to
the extent that the same relates to the Aircraft, and in and to the General
Terms Agreement, as and only to the extent that the Engine Warranties contained
therein relate to the Engines, except to the extent reserved below, including
without limitation in such assignment (a) all claims for damages in respect of
the Aircraft and the Engines arising as a result of any default by Manufacturer
under the Purchase Agreement or Engine Manufacturer or any other vendor or
supplier of other parts or equipment installed on or in the Aircraft, including
without limitation all warranty service life policies, aircraft performance
guarantees and indemnity provisions contained in the Purchase Agreement and the
Engine Warranties, and all claims arising thereunder, in respect of the Aircraft
and the Engines, (b) any and all rights of Assignor to compel performance of the
terms of the Purchase Agreement in respect of the Aircraft and the Engine
Warranties in respect of the Engines and (c) the right to purchase and take
title to the Aircraft pursuant to the Purchase Agreement; reserving to Assignor,
however, with respect to the Aircraft and each Engine, (i) all rights to receive
any credits due to Assignor with respect to the purchase price of the Aircraft
pursuant to the Purchase Agreement and of the Engines pursuant to the General
Terms Agreement, (ii) all of Assignor's rights and interests in or arising out
of any payments or deposits made relating to the Aircraft or to be made by
Assignor on amounts credited or to be credited or paid or to be paid by the
Manufacturer to the Assignor in respect of the Aircraft and (iii) so long and
only so long as the Aircraft and each Engine shall be subject to the Lease and
no Lease Event of Default shall have occurred and be continuing thereunder, the
rights (A) to demand, accept and retain all rights in and to all property (other
than the Aircraft), data and services that Manufacturer or Engine Manufacturer
is obligated to provide or does provide pursuant to the Purchase Agreement or
the General Terms Agreement, as the case may be, and (B) to obtain services,
training, data and demonstration and test flights pursuant to the Purchase
Agreement or the General Terms Agreement, as the case may be.
Assignee hereby accepts such assignment subject to the terms hereof.
Assignor has furnished a true copy of the Purchase Agreement and a true copy of
the General Terms Agreement to Assignee and has specifically directed Assignee's
attention to Paragraph 10 of Part A, Paragraph 5 of Part C, Paragraph 3 of Part
D, Paragraph 2 of Part D-1, Paragraph 5 of Part F-1, and Paragraph 9 and 10 of
Part F-2 of Exhibit B to the Purchase Agreement.
Section 3. EXERCISE OF RIGHTS OF "BUYER" UNDER PURCHASE AGREEMENT
AND OF "AIRLINE" UNDER GENERAL TERMS AGREEMENT. Notwithstanding the foregoing,
if and so long as no Lease Event of Default shall have occurred and be
continuing, Assignee authorizes Assignor, to the exclusion of Assignee, during
the Term, to exercise in Assignor's name all rights and powers of the "Buyer" in
respect of the Aircraft under the Purchase Agreement and of the "Airline" in
respect of each Engine under the General Terms Agreement, and of Assignee in
respect of a default by any vendor or supplier of parts and equipment (as
specified in clause (a) of Section 2 above) and to retain any recovery or
benefit resulting from the enforcement of any warranty or indemnity under the
Purchase Agreement or the General Terms Agreement in respect of the Aircraft or
each Engine, as the case may be, except that Assignor may not enter into any
change order or other amendment, modification or supplement to the Purchase
Agreement without the written consent or countersignature of Assignee if such
change order, amendment, modification or supplement would (i) result in any
rescission, cancellation or termination of the Purchase Agreement in respect of
the Aircraft or (ii) materially diminish the rights assigned hereunder to
Assignee. Assignee agrees that, as between Assignee and Manufacturer or Engine
Manufacturer, as the case may be (and without affecting Assignor's duties or
obligations under the Participation Agreement or the Lease), neither
Manufacturer nor Engine Manufacturer, as the case may be, shall be deemed to
have knowledge of any Lease Default, Lease Event of Default, declaration of
default or the discontinuance or remedy thereof or the Aircraft or either Engine
being no longer subject to the Lease or any change in the authority of Assignor
or Assignee, as the case may be, to exercise any of the rights established
hereunder unless and until Manufacturer shall have received written notice
thereof from Assignee or Mortgagee addressed to its Vice President - Contracts
at X.X. Xxx 0000, Mail Code 21-34, Xxxxxxx, Xxxxxxxxxx 00000-0000, if by mail,
or to (000) 000-0000, if by facsimile, or, in the case of Engine Manufacturer,
Engine Manufacturer shall have received written notice thereof from Assignee or
Mortgagee addressed to its Commercial Contract Director at X.X. Xxx 00000,
Xxxxxxxxxx, Xxxx 00000-0000, if by mail, or to (000) 000-0000, if by facsimile.
So long as Manufacturer and Engine Manufacturer act in good faith, Manufacturer
and Engine Manufacturer may rely conclusively on any such notice without
inquiring as to the accuracy of, or the entitlement of the party to give, such
notice.
The Engine Manufacturer shall not be deemed to have knowledge of the
replacement of an Engine with another CFM engine, until the Engine Manufacturer
has received written notice thereof. Such notice shall include the serial number
of the Engine being replaced, as well as the serial number of the replacement
Engine and shall be sent to: Lease Pool Manager, Customer Support Operation, GE
Aircraft Engines, 000 Xxxxxxxx Xxxxxx, Xxxx 000, Xxxxxxxxxx, Xxxx 00000.
Section 4. CERTAIN AGREEMENTS. It is expressly agreed that, anything
herein contained to the contrary notwithstanding:
(a) Assignor shall at all times remain liable (i) to Manufacturer
under the Purchase Agreement to perform all the duties and obligations of
the "Buyer" thereunder and (ii) to Engine Manufacturer under the General
Terms Agreement to perform all the duties and obligations of the "Airline"
thereunder, in each case to the same extent as if this Assignment had not
been executed,
(b) the exercise by Assignee of any of the rights assigned hereunder
shall not release Assignor from any of its duties or obligations to
Manufacturer under the Purchase Agreement or to Engine Manufacturer under
the General Terms Agreement except to the extent that such exercise by
Assignee shall constitute performance of such duties and obligations, and
(c) except as provided in the next sentence, none of Assignee,
Mortgagee or any Participant shall have any obligation or liability under
the Purchase Agreement or the General Terms Agreement by reason of, or
arising out of, this Assignment or be obligated to perform any of the
obligations or duties of Assignor under the Purchase Agreement or the
General Terms Agreement or to make any payment thereunder or to make any
inquiry as to the sufficiency of any payment received by any of them or to
present or file any claim or to take any other action to collect or
enforce any claim for any payment assigned hereunder.
Anything contained in this Assignment, the Consent and Agreement or the Engine
Consent and Agreement to the contrary notwithstanding, but without in any way
releasing Assignor from any of its duties or obligations under the Purchase
Agreement, the General Terms Agreement or this Assignment, Assignee and
Mortgagee confirm for the benefit of Manufacturer and Engine Manufacturer,
respectively, that, insofar as the provisions of the Purchase Agreement or the
Engine Warranties relate to the Aircraft or the Engines, as the case may be, in
exercising any rights under the Purchase Agreement or the Engine Warranties, or
in making any claim with respect to the Aircraft or other goods and services
delivered or to be delivered pursuant to the Purchase Agreement or the Engine
Warranties, the terms and conditions of the Purchase Agreement and the Engine
Warranties including, without limitation, the Disclaimer and Release and
Exclusion of Liabilities provisions of Article 12, including without limitation
Exhibit B (the "Product Assurance Document") and Exhibit C (the "Customer
Support Document") of the Purchase Agreement shall apply to, and be binding
upon, Assignee and Mortgagee to the same extent as Assignor.
Section 5. PRESERVATION OF RIGHTS. Nothing contained in this
Assignment shall in any way diminish or limit the provisions of Assignor's
indemnity in Section 9 of the Participation Agreement with respect to any
liability of Assignee to Manufacturer in any way relating to or arising out of
the Purchase Agreement. Nothing contained in this Assignment shall subject
Manufacturer or Engine Manufacturer to any obligation or liability to which it
would not otherwise be subject under the Purchase Agreement or under the General
Terms Agreement, as the case may be, or modify in any respect the contract
rights of Manufacturer or Engine Manufacturer thereunder, except as may be
provided in the Consent and Agreement and the Engine Consent and Agreement, or
require Manufacturer to divest itself of title to or possession of the Aircraft
or other goods and services until delivery thereof and payment therefor as
provided in the Purchase Agreement or subject Manufacturer or Engine
Manufacturer to any multiple or duplicative liability or obligation under the
Purchase Agreement or the General Terms Agreement, as the case may be. No
further assignment of the Engine Warranties, including without limitation
assignments for security purposes (other than under the Trust Indenture), are
permitted without the express written consent of Engine Manufacturer.
Section 6. APPOINTMENT OF ATTORNEY. Effective at any time when a
Lease Event of Default shall have occurred and be continuing, (i) unless
Assignee and Mortgagee (so long as the Lien of the Trust Indenture has not been
discharged), in their sole discretion, shall notify Manufacturer or Engine
Manufacturer, as the case may be, to the contrary, the authorization given to
Assignor under Section 3 hereof to enforce such rights and claims shall
henceforth cease to be effective and Assignee and its successors and permitted
assigns shall, to the exclusion of Assignor, be entitled to assert and enforce
such rights and claims as substitute party plaintiff or otherwise, and Assignor
shall, at the request of Assignee or its successors or permitted assigns and at
Assignor's expense, cooperate with and take such action as is reasonably
necessary to enable Assignee and its successors and permitted assigns to enforce
such rights and claims, and (ii) Assignor does hereby constitute Assignee, its
successors and permitted assigns, Assignor's true and lawful attorney,
irrevocably, with full power (in the name of Assignor or otherwise) to ask,
require, demand, receive, compound and give acquittance for any and all monies
and claims for monies due and to become due under, or arising out of, the
Purchase Agreement in respect of the Aircraft or the Engine Warranties in
respect of the Engines, as the case may be, to the extent that the same have
been assigned by this Assignment and, for such period as Assignee may exercise
rights with respect thereto under this Assignment, to endorse any checks or
other instruments or orders in connection therewith and to file any claims or
take any action or institute (or, if previously commenced, assume control of)
any proceeding and to obtain any recovery in connection therewith which Assignee
may deem to be necessary or advisable in the premises.
Section 7. OTHER ACTION. Assignor agrees that, at Assignor's sole
cost and expense, at any time and from time to time, upon the written request of
Assignee or, so long as the Lien of the Trust Indenture has not been discharged,
Mortgagee, Assignor will promptly and duly execute and deliver any and all such
further instruments and documents and take such further action as Assignee or,
so long as the Lien of the Trust Indenture has not been discharged, Mortgagee,
may reasonably request in order to obtain the full benefits of this Assignment
and of the rights and powers herein granted.
Section 8. ASSIGNOR'S REPRESENTATIONS AND WARRANTIES. Assignor does
hereby represent and warrant that the Purchase Agreement and the General Terms
Agreement are in full force and effect as to Assignor and are enforceable
against Assignor in accordance with their respective terms. Assignor does hereby
further represent and warrant that Assignor has, with the authorized execution
of the Consent and Agreement and the Engine Consent and Agreement, (i) received
all necessary consents to the assignment and transfer contemplated herein
(including without limitation the assignment and transfer contemplated herein of
Assignor's rights under the Purchase Agreement and the General Terms Agreement)
and (ii) assuming that the Consent and Agreement and the Engine Consent and
Agreement are in full force and effect, such consents are in full force and
effect and Assignor further represents and warrants that Assignor has not
assigned (except as assigned hereby) or pledged (except pursuant to the 737
Purchase Agreement Assignment dated as of November 27, 1996 between Lessee and
Manufacturer, the Lien of which will have been released at or prior to the
delivery of this Agreement), and hereby covenants that it will not during the
Term assign (except as assigned hereby) or pledge so long as this Assignment
shall remain in effect, the whole or any part of the rights hereby assigned or
any of its rights with respect to the Aircraft under the Purchase Agreement or
with respect to the Engines under the General Terms Agreement not assigned
hereby to anyone other than Assignee.
Section 9. PAYMENTS. Notwithstanding this Assignment and anything
herein to the contrary, all amounts that Manufacturer or Engine Manufacturer is
obligated to pay to Assignor under the Purchase Agreement with respect to the
Aircraft or under the General Terms Agreement with respect to the Engines,
including, without limitation, resulting from the enforcement of any warranty,
covenant, representation, indemnity or product support agreement thereunder or
the enforcement or exercise of any right or power thereunder or hereunder (in
the case of Manufacturer, a "Manufacturer Payment," and in the case of Engine
Manufacturer, an "Engine Manufacturer Payment") (excluding, however, from
Manufacturer Payments and Engine Manufacturer Payments any amounts Manufacturer
is obligated to pay to Assignor with respect to the rights reserved to Assignor
in Section 2 hereof), will be payable and applicable as follows: all
Manufacturer Payments and Engine Manufacturer Payments shall be paid to Assignor
unless and until Manufacturer or Engine Manufacturer, as the case may be, shall
have received written notice as set forth in Section 3 hereof from Assignee or
Mortgagee that a Lease Event of Default has occurred and is continuing,
whereupon Manufacturer or Engine Manufacturer, as the case may be, will, until
Manufacturer or Engine Manufacturer, as the case may be, shall have received
written notice from Assignee or Mortgagee that all Lease Events of Default have
been cured or waived, make any and all such payments directly to Assignee (or,
so long as the Trust Indenture has not been discharged and Manufacturer or
Engine Manufacturer, as the case may be, shall have received notice thereof, to
Mortgagee). Any amounts received by Assignee pursuant to the immediately
preceding sentence shall, to the extent not theretofore applied in satisfaction
of sums owing to Assignee in accordance with the terms of the Operative
Agreements, be held and invested as provided in Section 4.4 of the Lease.
Section 10. ASSIGNEE'S AGREEMENT. Assignee agrees that, during the
Term, except as otherwise contemplated by Section 2 hereof and unless a Lease
Event of Default shall have occurred and be continuing, it will not enter into
any agreement that would amend, modify, supplement, rescind, cancel or terminate
the Purchase Agreement or the General Terms Agreement in respect of the Aircraft
or the Engines without the prior written consent of Assignor.
Section 11. EXECUTION; COUNTERPARTS, ETC. This Assignment is
executed by Assignor and Assignee concurrently with the execution and delivery
of the Lease. This Assignment may be executed by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original,
and all of which counterparts, taken together, shall constitute one and the same
instrument. The section headings in this Assignment are for convenience of
reference only and shall not modify, define, expand or limit any of the terms or
provisions hereof.
Section 12. CONFIDENTIAL TREATMENT. Assignee agrees that it will not
disclose to any third party the terms of the Purchase Agreement or the General
Terms Agreement except (i) as required by applicable law or governmental
regulation, (ii) in connection with the financing of the Aircraft, (iii) as
permitted under Section 8 of the Participation Agreement as if this Assignment
were specifically referred to therein, (iv) with the consent of Assignor,
Manufacturer and the Engine Manufacturer (as the case may be) or (v) in
connection with any sale or lease of the Aircraft. Assignee further agrees that
in connection with any disclosures made as contemplated by clauses (ii) (except
in connection with the financing contemplated by the Participation Agreement),
(iii) (except as to clauses (C) and (E) and (F) of Section 8 of the
Participation Agreement) or (iv) of the preceding sentence, Assignee shall
instruct the entity to which such information is disclosed to treat such
information as confidential on the terms set forth in this Section 12.
Section 13. ASSIGNMENT TO MORTGAGEE. The right, title and interest
of Assignee in and to this Assignment has been assigned to and is subject to a
security interest in favor of Wilmington Trust Company, as Mortgagee under the
Trust Indenture, for the benefit of the Noteholders and the Indenture
Indemnitees referred to in such Trust Indenture, all to the extent provided in
such Trust Indenture. Assignor hereby consents to such assignment and to the
creation of such security interest in and to this Assignment.
SECTION 14. GOVERNING LAW. THIS ASSIGNMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAWS.
[This space intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Purchase
Agreement and Engine Warranties Assignment ___ to be duly executed as of the day
and year first above written.
CONTINENTAL AIRLINES, INC.
By_______________________________________
Name:
Title:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Owner Trustee
By_______________________________________
Name:
Title:
The undersigned, as Mortgagee for the benefit of the Note Holders
and Indenture Indemnitees and as assignee of, and holder of a security interest
in, the estate, right, title and interest of Assignee in and to the foregoing
Assignment pursuant to the terms of the Trust Indenture agrees to the terms of
the foregoing Assignment and agrees that its rights and remedies under the Trust
Indenture shall be subject to the terms and conditions of the foregoing
Assignment, including Sections 4 and 5 therein, and of the Purchase Agreement
and the General Terms Agreement.
WILMINGTON TRUST COMPANY,
as Mortgagee
By_______________________________________
Name:
Title:
MANUFACTURER CONSENT AND AGREEMENT ___
The undersigned, THE BOEING COMPANY, a Delaware corporation, hereby
acknowledges notice of and consents to all of the terms of Purchase Agreement
and Engine Warranties Assignment ___ (herein called the "Assignment") (the
defined terms therein being hereinafter used with the same meanings unless
otherwise defined herein) between Continental Airlines, Inc., as Assignor, and
First Security Bank, National Association, as Owner Trustee, as Assignee, and
hereby confirms to Assignee that: (i) all representations, warranties,
indemnities and agreements of Manufacturer under the Purchase Agreement with
respect to the Aircraft shall inure to the benefit of Assignee to the same
extent as if originally named the "Buyer" therein, except as provided by Section
2 of the Assignment; (ii) Assignee shall not be liable for any of the
obligations or duties of Assignor under the Purchase Agreement, nor shall the
Assignment give rise to any duties or obligations whatsoever on the part of
Assignee owing to Manufacturer, except as provided in Section 4 of the
Assignment; (iii) Manufacturer consents to the grant of a security interest in
the Aircraft pursuant to the Trust Indenture by Assignee and agrees that the
Assignment constitutes an agreement by Assignee as required by Article 10.2 of
the Purchase Agreement; and (iv) Manufacturer will continue to pay to Assignor
or its order all payments that Manufacturer may be required to make in respect
of the Aircraft under the Purchase Agreement unless and until Manufacturer shall
have received written notice from Assignee or Mortgagee addressed to its Vice -
President - Contracts at X.X. Xxx 0000, Mail Code 21-34, Xxxxxxx, Xxxxxxxxxx
00000-0000, if by mail, or to (000) 000-0000, if by facsimile, that a Lease
Event of Default has occurred and is continuing or the Lease has been terminated
(unless Assignor or its designee has acquired ownership of the Aircraft pursuant
to the Operative Agreements and Assignor has given written notice thereof to
Manufacturer), whereupon Manufacturer will not be required to make further
inquiry into the content of such notice and will make any and all payments that
it may be required thereafter to make in respect of the Aircraft under the
Purchase Agreement and the right to receive that has been assigned under the
Assignment, directly to Assignee at its address at 00 Xxxxx Xxxx Xxxxxx, Xxxxx
Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attn: Corporate Trust Department (or, so long
as the Trust Indenture has not been discharged, directly to Mortgagee at its
address at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, Attn: Corporate Trust Administration), unless and until Manufacturer
shall have received notice in writing from Assignee or Mortgagee that no Lease
Event of Default is continuing, whereupon Manufacturer shall make all payments
that Manufacturer may be required to make in respect of the Aircraft under the
Purchase Agreement to Assignor or its order, as aforesaid.
Manufacturer hereby represents and warrants that: (i) Manufacturer
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware; (ii) the making and performance of the Purchase
Agreement and this Manufacturer Consent and Agreement ___ have been duly
authorized by all necessary corporate action on the part of Manufacturer, do not
require any stockholder approval and do not contravene Manufacturer's Restated
Certificate of Incorporation or By-laws or any indenture, credit agreement or
other contractual agreement to which Manufacturer is a party or by which it is
bound and the making of the Purchase Agreement and this Manufacturer Consent and
Agreement ___, the giving of the warranty obligations thereunder, do not, as to
such making or giving, contravene any law binding on Manufacturer; and (iii) the
Purchase Agreement constituted, as of the date thereof and at all times
thereafter to and including the date of this Manufacturer Consent and Agreement
___, and this Manufacturer Consent and Agreement ___ constitutes, binding
obligations of Manufacturer enforceable against Manufacturer in accordance with
their respective terms subject to (A) the limitations of applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights of
creditors generally and (B) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law), which
principles do not make the remedies available at law or in equity with respect
to the Purchase Agreement and this Manufacturer Consent and Agreement ___
inadequate for the practical realization of the benefits intended to be provided
thereby. It is understood that the execution of this Manufacturer Consent and
Agreement ___ by Manufacturer is subject to the condition that, concurrently
with the delivery of the Aircraft to Assignee, Assignee shall lease the Aircraft
to Assignor under the Lease.
THIS MANUFACTURER CONSENT AND AGREEMENT ___ SHALL IN ALL RESPECTS BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF WASHINGTON, INCLUDING ALL MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT REFERENCE TO CONFLICTS OF
LAWS PRINCIPLES.
Dated as of ____________.
THE BOEING COMPANY
By_______________________________________
Name:
Title:
ENGINE MANUFACTURER CONSENT AND AGREEMENT ___
The undersigned, CFM INTERNATIONAL INC., a Delaware corporation,
hereby acknowledges notice of and consents to all of the terms of Purchase
Agreement and Engine Warranties Assignment ___ (herein called the "Assignment")
(the defined terms therein being hereinafter used with the same meanings unless
otherwise defined herein) between Continental Airlines, Inc., as Assignor, and
First Security Bank, National Association, as Owner Trustee, as Assignee. Under
the General Terms Agreement, Engine Manufacturer has agreed to support certain
CFM Model 56-7B26 engines and spare parts therefor purchased by Assignor from
Engine Manufacturer, as installed on certain Boeing Model 737 aircraft. Engine
Manufacturer hereby confirms to Assignor and Assignee that the Engine
Warranties, as and to the extent that such relate to the Engines, shall inure to
the benefit of Assignee (and, so long as the Trust Indenture has not been
discharged, Mortgagee) to the same extent as if originally named "Airline" in
the General Terms Agreement and to the benefit of Assignor (but only to the
extent provided for in the Assignment) in each case subject to the terms and
conditions of the Assignment; provided, that Engine Manufacturer shall not owe
any liability or obligation under the Engine Warranties more than once in total.
Engine Manufacturer represents and warrants that:
1. It is a corporation duly organized and validly existing in good
standing under the laws of the State of Delaware;
2. The making and performance of this Engine Manufacturer Consent
and Agreement ___ in accordance with its terms have been duly authorized by all
necessary corporate action on the part of Engine Manufacturer, do not require
any stockholder approval and do not contravene its Certificate of Incorporation
or by-laws or any debenture, credit agreement or other contractual agreement to
which Engine Manufacturer is a party or by which it is bound or any law binding
on Engine Manufacturer;
3. The making and performance of the Engine Warranties in accordance
with their terms have been duly authorized by all necessary corporate action on
the part of Engine Manufacturer, do not require any stockholder approval and do
not contravene Engine Manufacturer's Certificate of Incorporation or by-laws or
any debenture, credit agreement or other contractual agreement to which Engine
Manufacturer is a party or by which it is bound, and do not, as to the making
thereof, contravene any law binding on Engine Manufacturer, and to the best of
its knowledge, do not as to the performance thereof contravene any law binding
on Engine Manufacturer; and
4. The Engine Warranties constituted as of the date on which they
were made and at all times thereafter to and including the date of this Engine
Manufacturer Consent and Agreement ___, and this Engine Manufacturer Consent and
Agreement ___ constitute binding obligations of Engine Manufacturer enforceable
against Engine Manufacturer in accordance with their respective terms subject
to:
(a) the limitations of applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally; and
(b) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
[This space intentionally left blank.]
THIS ENGINE MANUFACTURER CONSENT AND AGREEMENT ___ SHALL IN ALL
RESPECTS BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES
OF CONFLICTS OF LAWS.
Dated as of _____________.
CFM INTERNATIONAL, INC.
By_______________________________________
Name:
Title:
EXHIBIT A-4-II
NOTE PURCHASE AGREEMENT
FORM OF AIRCRAFT PURCHASE AGREEMENT ASSIGNMENT - GE
-------------------------------------------------------------------------
CONFIDENTIAL: SUBJECT TO RESTRICTIONS ON DISSEMINATION
SET FORTH IN SECTION 8 OF THE PARTICIPATION AGREEMENT (AS DEFINED HEREIN)
-------------------------------------------------------------------------
PURCHASE AGREEMENT AND ENGINE WARRANTIES ASSIGNMENT [___]
PURCHASE AGREEMENT AND ENGINE WARRANTIES ASSIGNMENT [___], dated as
of [___________], between Continental Airlines, Inc., a Delaware corporation
("Assignor"), and First Security Bank, National Association, a national banking
association, not in its individual capacity but solely as Owner Trustee
("Assignee") under Trust Agreement [___] dated as of [___________] (the "Trust
Agreement"), between the Owner Participant named therein and Assignee, in its
individual capacity, and otherwise not in its individual capacity but solely as
trustee thereunder.
Assignor and Manufacturer (as such term and other capitalized terms
are hereinafter defined) are parties to the Purchase Agreement, providing, among
other things, for the manufacture and sale by Manufacturer or Manufacturer's
wholly owned subsidiary to Assignor of certain aircraft, engines and related
equipment, including the Aircraft. Assignor and Engine Manufacturer are parties
to the General Terms Agreement, containing, among other terms and conditions,
the Engine Warranties.
Assignee wishes to acquire the Aircraft and Assignor, on the terms
and conditions hereinafter set forth, is willing to assign to Assignee certain
of Assignor's rights and interests under the Purchase Agreement and the General
Terms Agreement and Assignee is willing to accept such assignment, as
hereinafter set forth.
AGREEMENTS
The parties hereto agree as follows:
Section 1. DEFINITIONS. For all purposes of this Assignment, except
as otherwise expressly provided or unless the context otherwise requires, the
following terms shall have the following meanings:
AIRCRAFT - The Boeing Model [767-424] [767-224] [777-224] aircraft
bearing Manufacturer's Serial No. [______] and U.S. Registration No.
N[_________], to be financed pursuant to the Participation Agreement, including
the Engines.
AGTA - The Aircraft General Terms Agreement AGTA-CAL between the
Manufacturer and Lessee, dated October 10, 1997.
ENGINES - Two General Electric Company [CF6-80C2B4F] [CF6-80C2B8F]
[GE90] series engines bearing manufacturer's serial numbers [______] and
[______], respectively, installed on the Aircraft.
ENGINE MANUFACTURER - General Electric Company, a New York
corporation, and its successors and assigns.
ENGINE WARRANTIES - Engine Manufacturer's "New Engine Warranty,"
"New Parts Warranty," "Ultimate Life Warranty" and "Campaign Change Warranty,"
as set forth in the Engine Manufacturer's Engine Product Support Plan which
forms a part of the General Terms Agreement, and as limited by the applicable
terms of the General Terms Agreement and such Engine Product Support Plan.
GENERAL TERMS AGREEMENT - The Amended and Restated General Terms
Agreement No. 6-8057, dated as of November 1, 1994, by and between Engine
Manufacturer and Assignor, including the "Engine Product Support Plan" at
Exhibit B thereto, insofar as such Engine Product Support Plan relates to the
Engine Warranties, but excluding any and all letter agreements attached thereto,
to the extent that such General Terms Agreement and such Exhibit relate to the
Engine Warranties, as such General Terms Agreement may hereafter be amended,
supplemented and modified to the extent permitted by the terms of this
Assignment to the extent relating to the Engines.
LEASE - The Lease Agreement [___], dated as of [___________], as at
any time amended, supplemented and modified, between Assignee, as lessor, and
Assignor, as lessee, providing for the lease of the Aircraft.
MANUFACTURER - The Boeing Company, a Delaware corporation, and its
successors and assigns.
PARTICIPATION AGREEMENT - The Participation Agreement [___], dated
as of [___________], among Assignor, the Participants, Assignee and Mortgagee,
as at any time amended, supplemented and modified.
PURCHASE AGREEMENT - Purchase Agreement No. [2060, dated as of
October 10, 1997,] [2211, dated as of November 16, 1998] [2061 (formerly known
as Purchase Agreement No. 1785), dated as of October 10, 1997] between
Manufacturer and Assignor, providing, among other things, for the manufacture
and sale by Manufacturer to Assignor of certain Boeing Model [767-424] [767-224]
[777-224] aircraft (including the Aircraft) and including as part thereof
Exhibits A, B, XXX0, XX0 and SLP1 thereto and the AGTA (as and to the extent
incorporated by reference in the Purchase Agreement and including Exhibit C to
the AGTA and excluding the other Exhibits and Letter Agreements hereto), but
excluding all other exhibits and letter and supplemental agreements, to the
extent that such Purchase Agreement and such Exhibits relate to the Aircraft, as
such Purchase Agreement may hereafter be amended, supplemented and modified to
the extent permitted by the terms of this Assignment.
Capitalized terms used but not defined herein shall have the
respective meanings set forth or incorporated by reference, and shall be
construed and interpreted in the manner described, in the Participation
Agreement.
Section 2. ASSIGNMENT. Assignor does hereby sell, assign, transfer
and set over unto Assignee and its successors and permitted assigns all of
Assignor's rights and interests in and to the Purchase Agreement, as and only to
the extent that the same relates to the Aircraft, and in and to the General
Terms Agreement, as and only to the extent that the Engine Warranties contained
therein relate to the Engines, except to the extent reserved below, including
without limitation in such assignment (a) all claims for damages in respect of
the Aircraft and the Engines arising as a result of any default by Manufacturer
under the Purchase Agreement or Engine Manufacturer or any other vendor or
supplier of other parts or equipment installed on or in the Aircraft, including
without limitation all warranty service life policies, aircraft performance
guarantees and indemnity provisions contained in the Purchase Agreement and the
Engine Warranties, and all claims arising thereunder, in respect of the Aircraft
and the Engines, (b) any and all rights of Assignor to compel performance of the
terms of the Purchase Agreement in respect of the Aircraft and the Engine
Warranties in respect of the Engines and (c) the right to purchase and take
title to the Aircraft pursuant to the Purchase Agreement; reserving to Assignor,
however, with respect to the Aircraft and each Engine, (i) all rights to receive
any credits due to Assignor with respect to the purchase price of the Aircraft
pursuant to the Purchase Agreement and of the Engines pursuant to the General
Terms Agreement, (ii) all of Assignor's rights and interests in or arising out
of any payments or deposits made relating to the Aircraft or to be made by
Assignor on amounts credited or to be credited or paid or to be paid by the
Manufacturer to the Assignor in respect of the Aircraft and (iii) so long and
only so long as the Aircraft and each Engine shall be subject to the Lease and
no Lease Event of Default shall have occurred and be continuing thereunder, the
rights (A) to demand, accept and retain all rights in and to all property (other
than the Aircraft), data and services that Manufacturer or Engine Manufacturer
is obligated to provide or does provide pursuant to the Purchase Agreement or
the General Terms Agreement, as the case may be, and (B) to obtain services,
training, data and demonstration and test flights pursuant to the Purchase
Agreement or the General Terms Agreement, as the case may be.
Assignee hereby accepts such assignment subject to the terms hereof.
Assignor has furnished a true copy of the Purchase Agreement and a true copy of
the General Terms Agreement to Assignee and has specifically directed Assignee's
attention to Section 12 of Part 2, Section 5 of Part 3, Section 6 of Part 5 and
Section 3 of Part 6 of Exhibit C to the AGTA.
Section 3. EXERCISE OF RIGHTS OF "CUSTOMER" UNDER PURCHASE AGREEMENT
AND OF "AIRLINE" UNDER GENERAL TERMS AGREEMENT. Notwithstanding the foregoing,
if and so long as no Lease Event of Default shall have occurred and be
continuing, Assignee authorizes Assignor, to the exclusion of Assignee, during
the Term, to exercise in Assignor's name all rights and powers of the "Customer"
in respect of the Aircraft under the Purchase Agreement and of the "Airline" in
respect of each Engine under the General Terms Agreement, and of Assignee in
respect of a default by any vendor or supplier of parts and equipment (as
specified in clause (a) of Section 2 above) and to retain any recovery or
benefit resulting from the enforcement of any warranty or indemnity under the
Purchase Agreement or the General Terms Agreement in respect of the Aircraft or
each Engine, as the case may be, except that Assignor may not enter into any
change order or other amendment, modification or supplement to the Purchase
Agreement without the written consent or countersignature of Assignee if such
change order, amendment, modification or supplement would (i) result in any
rescission, cancellation or termination of the Purchase Agreement in respect of
the Aircraft or (ii) materially diminish the rights assigned hereunder to
Assignee. Assignee agrees that, as between Assignee and Manufacturer or Engine
Manufacturer, as the case may be (and without affecting Assignor's duties or
obligations under the Participation Agreement or the Lease), neither
Manufacturer nor Engine Manufacturer, as the case may be, shall be deemed to
have knowledge of any Lease Default, Lease Event of Default, declaration of
default or the discontinuance or remedy thereof or the Aircraft or either Engine
being no longer subject to the Lease or any change in the authority of Assignor
or Assignee, as the case may be, to exercise any of the rights established
hereunder unless and until Manufacturer shall have received written notice
thereof from Assignee or Mortgagee addressed to its Vice President - Contracts
at X.X. Xxx 0000, Mail Code 21-34, Xxxxxxx, Xxxxxxxxxx 00000-0000, if by mail,
or to (000) 000-0000, if by facsimile, or, in the case of Engine Manufacturer,
Engine Manufacturer shall have received written notice thereof from Assignee or
Mortgagee addressed to General Electric Company, GE Aircraft Engines, Xxx Xxxxxx
Xxx, Xxxxxxxxxx, Xxxx 00000-0000, Attention: Director, Commercial Contracts, if
by facsimile. So long as Manufacturer and Engine Manufacturer act in good faith,
Manufacturer and Engine Manufacturer may rely conclusively on any such notice
without inquiring as to the accuracy of, or the entitlement of the party to
give, such notice.
The Engine Manufacturer shall not be deemed to have knowledge of the
replacement of an Engine with another [CF6-80C2B4F] [CF6-80C2B8F] [GE90][
engine, until the Engine Manufacturer has received written notice thereof. Such
notice shall include the serial number of the Engine being replaced, as well as
the serial number of the replacement Engine and shall be sent to: Lease Pool
Manager, Customer Support Operation, GE Aircraft Engines, 000 Xxxxxxxx Xxxxxx,
Xxxx 000, Xxxxxxxxxx, Xxxx 00000.
Section 4. CERTAIN AGREEMENTS. It is expressly agreed that, anything
herein contained to the contrary notwithstanding:
(a) Assignor shall at all times remain liable (i) to Manufacturer
under the Purchase Agreement to perform all the duties and obligations of
the "Customer" thereunder and (ii) to Engine Manufacturer under the
General Terms Agreement to perform all the duties and obligations of the
"Airline" thereunder, in each case to the same extent as if this
Assignment had not been executed,
(b) the exercise by Assignee of any of the rights assigned hereunder
shall not release Assignor from any of its duties or obligations to
Manufacturer under the Purchase Agreement or to Engine Manufacturer under
the General Terms Agreement except to the extent that such exercise by
Assignee shall constitute performance of such duties and obligations, and
(c) except as provided in the next sentence, none of Assignee,
Mortgagee or any Participant shall have any obligation or liability under
the Purchase Agreement or the General Terms Agreement by reason of, or
arising out of, this Assignment or be obligated to perform any of the
obligations or duties of Assignor under the Purchase Agreement or the
General Terms Agreement or to make any payment thereunder or to make any
inquiry as to the sufficiency of any payment received by any of them or to
present or file any claim or to take any other action to collect or
enforce any claim for any payment assigned hereunder.
Anything contained in this Assignment, the Consent and Agreement or the Engine
Consent and Agreement to the contrary notwithstanding, but without in any way
releasing Assignor from any of its duties or obligations under the Purchase
Agreement, the General Terms Agreement or this Assignment, Assignee and
Mortgagee confirm for the benefit of Manufacturer and Engine Manufacturer,
respectively, that, insofar as the provisions of the Purchase Agreement or the
Engine Warranties relate to the Aircraft or the Engines, as the case may be, in
exercising any rights under the Purchase Agreement or the Engine Warranties, or
in making any claim with respect to the Aircraft or other goods and services
delivered or to be delivered pursuant to the Purchase Agreement or the Engine
Warranties, the terms and conditions of the Purchase Agreement including,
without limitation, the Disclaimer and Release and the Exclusion of
Consequential and Other Damages provisions of Sections 12.1 through 12.3 of
Exhibit C to the AGTA and the Engine Warranties, including without limitation
Exhibit B to the General Terms Agreement shall apply to, and be binding upon,
Assignee and Mortgagee to the same extent as Assignor.
Section 5. PRESERVATION OF RIGHTS. Nothing contained in this
Assignment shall in any way diminish or limit the provisions of Assignor's
indemnity in Section 9 of the Participation Agreement with respect to any
liability of Assignee to Manufacturer in any way relating to or arising out of
the Purchase Agreement. Nothing contained in this Assignment shall subject
Manufacturer or Engine Manufacturer to any obligation or liability to which it
would not otherwise be subject under the Purchase Agreement or under the General
Terms Agreement, as the case may be, or modify in any respect the contract
rights of Manufacturer or Engine Manufacturer thereunder, except as may be
provided in the Consent and Agreement and the Engine Consent and Agreement, or
require Manufacturer to divest itself of title to or possession of the Aircraft
or other goods and services until delivery thereof and payment therefor as
provided in the Purchase Agreement or subject Manufacturer or Engine
Manufacturer to any multiple or duplicative liability or obligation under the
Purchase Agreement or the General Terms Agreement, as the case may be. No
further assignment of the Engine Warranties, including without limitation
assignments for security purposes (other than under the Trust Indenture), are
permitted without the express written consent of Engine Manufacturer.
Section 6. APPOINTMENT OF ATTORNEY. Effective at any time when a
Lease Event of Default shall have occurred and be continuing, (i) unless
Assignee and Mortgagee (so long as the Lien of the Trust Indenture has not been
discharged), in their sole discretion, shall notify Manufacturer or Engine
Manufacturer, as the case may be, to the contrary, the authorization given to
Assignor under Section 3 hereof to enforce such rights and claims shall
henceforth cease to be effective and Assignee and its successors and permitted
assigns shall, to the exclusion of Assignor, be entitled to assert and enforce
such rights and claims as substitute party plaintiff or otherwise, and Assignor
shall, at the request of Assignee or its successors or permitted assigns and at
Assignor's expense, cooperate with and take such action as is reasonably
necessary to enable Assignee and its successors and permitted assigns to enforce
such rights and claims, and (ii) Assignor does hereby constitute Assignee, its
successors and permitted assigns, Assignor's true and lawful attorney,
irrevocably, with full power (in the name of Assignor or otherwise) to ask,
require, demand, receive, compound and give acquittance for any and all monies
and claims for monies due and to become due under, or arising out of, the
Purchase Agreement in respect of the Aircraft or the Engine Warranties in
respect of the Engines, as the case may be, to the extent that the same have
been assigned by this Assignment and, for such period as Assignee may exercise
rights with respect thereto under this Assignment, to endorse any checks or
other instruments or orders in connection therewith and to file any claims or
take any action or institute (or, if previously commenced, assume control of)
any proceeding and to obtain any recovery in connection therewith which Assignee
may deem to be necessary or advisable in the premises.
Section 7. OTHER ACTION. Assignor agrees that, at Assignor's sole
cost and expense, at any time and from time to time, upon the written request of
Assignee or, so long as the Lien of the Trust Indenture has not been discharged,
Mortgagee, Assignor will promptly and duly execute and deliver any and all such
further instruments and documents and take such further action as Assignee or,
so long as the Lien of the Trust Indenture has not been discharged, Mortgagee,
may reasonably request in order to obtain the full benefits of this Assignment
and of the rights and powers herein granted.
Section 8. ASSIGNOR'S REPRESENTATIONS AND WARRANTIES. Assignor does
hereby represent and warrant that the Purchase Agreement and the General Terms
Agreement are in full force and effect as to Assignor and are enforceable
against Assignor in accordance with their respective terms. Assignor does hereby
further represent and warrant that Assignor has, with the authorized execution
of the Consent and Agreement and the Engine Consent and Agreement, (i) received
all necessary consents to the assignment and transfer contemplated herein
(including without limitation the assignment and transfer contemplated herein of
Assignor's rights under the Purchase Agreement and the General Terms Agreement)
and (ii) assuming that the Consent and Agreement and the Engine Consent and
Agreement are in full force and effect, such consents are in full force and
effect and Assignor further represents and warrants that Assignor has not
assigned (except as assigned hereby) or pledged (except pursuant to the
[___________________________] between Lessee and Manufacturer, the Lien of which
will have been released at or prior to the delivery of this Agreement), and
hereby covenants that it will not during the Term assign (except as assigned
hereby) or pledge so long as this Assignment shall remain in effect, the whole
or any part of the rights hereby assigned or any of its rights with respect to
the Aircraft under the Purchase Agreement or with respect to the Engines under
the General Terms Agreement not assigned hereby to anyone other than Assignee.
Section 9. PAYMENTS. Notwithstanding this Assignment and anything
herein to the contrary, all amounts that Manufacturer or Engine Manufacturer is
obligated to pay to Assignor under the Purchase Agreement with respect to the
Aircraft or under the General Terms Agreement with respect to the Engines,
including, without limitation, resulting from the enforcement of any warranty,
covenant, representation, indemnity or product support agreement thereunder or
the enforcement or exercise of any right or power thereunder or hereunder (in
the case of Manufacturer, a "Manufacturer Payment," and in the case of Engine
Manufacturer, an "Engine Manufacturer Payment") (excluding, however, from
Manufacturer Payments and Engine Manufacturer Payments any amounts Manufacturer
is obligated to pay to Assignor with respect to the rights reserved to Assignor
in Section 2 hereof), will be payable and applicable as follows: all
Manufacturer Payments and Engine Manufacturer Payments shall be paid to Assignor
unless and until Manufacturer or Engine Manufacturer, as the case may be, shall
have received written notice as set forth in Section 3 hereof from Assignee or
Mortgagee that a Lease Event of Default has occurred and is continuing,
whereupon Manufacturer or Engine Manufacturer, as the case may be, will, until
Manufacturer or Engine Manufacturer, as the case may be, shall have received
written notice from Assignee or Mortgagee that all Lease Events of Default have
been cured or waived, make any and all such payments directly to Assignee (or,
so long as the Trust Indenture has not been discharged and Manufacturer or
Engine Manufacturer, as the case may be, shall have received notice thereof, to
Mortgagee). Any amounts received by Assignee pursuant to the immediately
preceding sentence shall, to the extent not theretofore applied in satisfaction
of sums owing to Assignee in accordance with the terms of the Operative
Agreements, be held and invested as provided in Section 4.4 of the Lease.
Section 10. ASSIGNEE'S AGREEMENT. Assignee agrees that, during the
Term, except as otherwise contemplated by Section 2 hereof and unless a Lease
Event of Default shall have occurred and be continuing, it will not enter into
any agreement that would amend, modify, supplement, rescind, cancel or terminate
the Purchase Agreement or the General Terms Agreement in respect of the Aircraft
or the Engines without the prior written consent of Assignor.
Section 11. EXECUTION; COUNTERPARTS, ETC. This Assignment is
executed by Assignor and Assignee concurrently with the execution and delivery
of the Lease. This Assignment may be executed by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original,
and all of which counterparts, taken together, shall constitute one and the same
instrument. The section headings in this Assignment are for convenience of
reference only and shall not modify, define, expand or limit any of the terms or
provisions hereof.
Section 12. CONFIDENTIAL TREATMENT. Assignee agrees that it will not
disclose to any third party the terms of the Purchase Agreement or the General
Terms Agreement except (i) as required by applicable law or governmental
regulation, (ii) in connection with the financing of the Aircraft, (iii) as
permitted under Section 8 of the Participation Agreement as if this Assignment
were specifically referred to therein, (iv) with the consent of Assignor,
Manufacturer and the Engine Manufacturer (as the case may be) or (v) in
connection with any sale or lease of the Aircraft. Assignee further agrees that
in connection with any disclosures made as contemplated by clauses (ii) (except
in connection with the financing contemplated by the Participation Agreement),
(iii) (except as to clauses (C) and (E) and (F) of Section 8 of the
Participation Agreement) or (iv) of the preceding sentence, Assignee shall
instruct the entity to which such information is disclosed to treat such
information as confidential on the terms set forth in this Section 12.
Section 13. ASSIGNMENT TO MORTGAGEE. The right, title and interest
of Assignee in and to this Assignment has been assigned to and is subject to a
security interest in favor of Wilmington Trust Company, as Mortgagee under the
Trust Indenture, for the benefit of the Noteholders and the Indenture
Indemnitees referred to in such Trust Indenture, all to the extent provided in
such Trust Indenture. Assignor hereby consents to such assignment and to the
creation of such security interest in and to this Assignment.
SECTION 14. GOVERNING LAW. THIS ASSIGNMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAWS.
[This space intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Purchase
Agreement and Engine Warranties Assignment [___] to be duly executed as of the
day and year first above written.
CONTINENTAL AIRLINES, INC.
By______________________________________
Name:
Title:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Owner Trustee
By______________________________________
Name:
Title:
The undersigned, as Mortgagee for the benefit of the Note Holders
and Indenture Indemnitees and as assignee of, and holder of a security interest
in, the estate, right, title and interest of Assignee in and to the foregoing
Assignment pursuant to the terms of the Trust Indenture agrees to the terms of
the foregoing Assignment and agrees that its rights and remedies under the Trust
Indenture shall be subject to the terms and conditions of the foregoing
Assignment, including Sections 4 and 5 therein, and of the Purchase Agreement
and the General Terms Agreement.
WILMINGTON TRUST COMPANY,
as Mortgagee
By______________________________________
Name:
Title:
MANUFACTURER CONSENT AND AGREEMENT
The undersigned, THE BOEING COMPANY, a Delaware corporation, hereby
acknowledges notice of and consents to all of the terms of Purchase Agreement
and Engine Warranties Assignment [___] (herein called the "Assignment") (the
defined terms therein being hereinafter used with the same meanings unless
otherwise defined herein) between Continental Airlines, Inc., as Assignor, and
First Security Bank, National Association, as Owner Trustee, as Assignee, and
hereby confirms to Assignee that: (i) all representations, warranties,
indemnities and agreements of Manufacturer under the Purchase Agreement with
respect to the Aircraft shall inure to the benefit of Assignee to the same
extent as if originally named the "Customer" therein, except as provided by
Section 2 of the Assignment; (ii) Assignee shall not be liable for any of the
obligations or duties of Assignor under the Purchase Agreement, nor shall the
Assignment give rise to any duties or obligations whatsoever on the part of
Assignee owing to Manufacturer, except as provided in Section 4 of the
Assignment; (iii) Manufacturer consents to the grant of a security interest in
the Aircraft pursuant to the Trust Indenture by Assignee and agrees that the
Assignment constitutes an agreement by Assignee as required by Article 9.2 of
the AGTA; and (iv) Manufacturer will continue to pay to Assignor or its order
all payments that Manufacturer may be required to make in respect of the
Aircraft under the Purchase Agreement unless and until Manufacturer shall have
received written notice from Assignee or Mortgagee addressed to its Vice -
President - Contracts at X.X. Xxx 0000, Mail Code 21-34, Xxxxxxx, Xxxxxxxxxx
00000-0000, if by mail, or to (000) 000-0000, if by facsimile, that a Lease
Event of Default has occurred and is continuing, whereupon Manufacturer will not
be required to make further inquiry into the content of such notice and will
make any and all payments that it may be required thereafter to make in respect
of the Aircraft under the Purchase Agreement and the right to receive that has
been assigned under the Assignment, directly to Assignee at its address at 00
Xxxxx Xxxx Xxxxxx, Xxxxx Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attn: Corporate
Trust Department (or, so long as the Trust Indenture has not been discharged,
directly to Mortgagee at its address at Xxxxxx Square North, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attn: Corporate Trust Administration),
unless and until Manufacturer shall have received notice in writing from
Assignee or Mortgagee that no Lease Event of Default is continuing, whereupon
Manufacturer shall make all payments that Manufacturer may be required to make
in respect of the Aircraft under the Purchase Agreement to Assignor or its
order, as aforesaid.
Manufacturer hereby represents and warrants that: (i) Manufacturer is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware; (ii) the making and performance of the Purchase
Agreement and this Manufacturer Consent and Agreement [___] have been duly
authorized by all necessary corporate action on the part of Manufacturer, do not
require any stockholder approval and do not contravene Manufacturer's Restated
Certificate of Incorporation or By-laws or any indenture, credit agreement or
other contractual agreement to which Manufacturer is a party or by which it is
bound and the making of the Purchase Agreement and this Manufacturer Consent and
Agreement [___], the giving of the warranty obligations thereunder, do not, as
to such making or giving, contravene any law binding on Manufacturer; and (iii)
the Purchase Agreement constituted, as of the date thereof and at all times
thereafter to and including the date of this Manufacturer Consent and Agreement
[___], and this Manufacturer Consent and Agreement [___] constitutes, binding
obligations of Manufacturer enforceable against Manufacturer in accordance with
their respective terms subject to (A) the limitations of applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights of
creditors generally and (B) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law), which
principles do not make the remedies available at law or in equity with respect
to the Purchase Agreement and this Manufacturer Consent and Agreement [___]
inadequate for the practical realization of the benefits intended to be provided
thereby. It is understood that the execution of this Manufacturer Consent and
Agreement [___] by Manufacturer is subject to the condition that, concurrently
with the delivery of the Aircraft to Assignee, Assignee shall lease the Aircraft
to Assignor under the Lease.
THIS MANUFACTURER CONSENT AND AGREEMENT [___] SHALL IN ALL RESPECTS BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF WASHINGTON, INCLUDING ALL MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT REFERENCE TO CONFLICTS OF
LAWS PRINCIPLES.
Dated as of _________ __, ____.
THE BOEING COMPANY
By____________________________________
Name:
Title:
MSN: ______
ENGINE MANUFACTURER CONSENT AND AGREEMENT
The undersigned, GENERAL ELECTRIC COMPANY, a New York corporation, hereby
acknowledges notice of and consents to all of the terms of Purchase Agreement
and Engine Warranties Assignment [___] (herein called the "Assignment") (the
defined terms therein being hereinafter used with the same meanings unless
otherwise defined herein) between Continental Airlines, Inc., as Assignor, and
First Security Bank, National Association, as Owner Trustee, as Assignee. Under
the General Terms Agreement, Engine Manufacturer has agreed to support certain
[CF6-80C2B8F] [CF6-80C2B4F] [GE90] engines and spare parts therefor purchased by
Assignor from Engine Manufacturer, as installed on certain Boeing Model
[767-424] [767-224] [777-224] aircraft. Engine Manufacturer hereby confirms to
Assignor and Assignee that the Engine Warranties, as and to the extent that such
relate to the Engines, shall inure to the benefit of Assignee (and, so long as
the Trust Indenture has not been discharged, Mortgagee) to the same extent as if
originally named "Airline" in the General Terms Agreement and to the benefit of
Assignor (but only to the extent provided for in the Assignment) in each case
subject to the terms and conditions of the Assignment; PROVIDED, that Engine
Manufacturer shall not owe any liability or obligation under the Engine
Warranties more than once in total.
Engine Manufacturer represents and warrants that:
1. It is a corporation duly organized and validly existing in good
standing under the laws of the State of New York;
2. The making and performance of this Engine Manufacturer Consent and
Agreement [___] in accordance with its terms have been duly authorized by all
necessary corporate action on the part of Engine Manufacturer, do not require
any stockholder approval and do not contravene its Certificate of Incorporation
or by-laws or any debenture, credit agreement or other contractual agreement to
which Engine Manufacturer is a party or by which it is bound or any law binding
on Engine Manufacturer;
3. The making and performance of the Engine Warranties in accordance with
their terms have been duly authorized by all necessary corporate action on the
part of Engine Manufacturer, do not require any stockholder approval and do not
contravene Engine Manufacturer's Certificate of Incorporation or by-laws or any
debenture, credit agreement or other contractual agreement to which Engine
Manufacturer is a party or by which it is bound, and do not, as to the making
thereof, contravene any law binding on Engine Manufacturer, and to the best of
its knowledge, do not as to the performance thereof contravene any law binding
on Engine Manufacturer; and
4. The Engine Warranties constituted as of the date on which they were
made and at all times thereafter to and including the date of this Engine
Manufacturer Consent and Agreement [___], and this Engine Manufacturer Consent
and Agreement [___] constitute binding obligations of Engine Manufacturer
enforceable against Engine Manufacturer in accordance with their respective
terms subject to:
(a) the limitations of applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally; and
(b) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
[This space intentionally left blank.]
THIS ENGINE MANUFACTURER CONSENT AND AGREEMENT [___] SHALL IN ALL RESPECTS
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAWS.
Dated as of _________ __, ____.
GENERAL ELECTRIC COMPANY
By______________________________________
Name:
Title:
EXHIBIT A-5 to
NOTE PURCHASE AGREEMENT
FORM OF LEASED AIRCRAFT TRUST AGREEMENT
(Filed Separately)
EXHIBIT A-6 to
NOTE PURCHASE AGREEMENT
FORM OF SPECIAL INDENTURE
(Filed Separately)
EXHIBIT B to
NOTE PURCHASE AGREEMENT
FORM OF DELIVERY NOTICE
DELIVERY NOTICE
Dated as of [__________]
To each of the addressees listed
in Schedule A hereto
RE: DELIVERY NOTICE IN ACCORDANCE WITH NOTE PURCHASE AGREEMENT
REFERRED TO BELOW
Gentlemen:
Reference is made to the Note Purchase Agreement, dated as of April 19,
2001, among Continental Airlines, Inc. (the "COMPANY"), Wilmington Trust
Company, as Pass Through Trustee under each of the Pass Through Trust Agreements
(as defined therein) (the "PASS THROUGH TRUSTEE"), Wilmington Trust Company, as
Subordination Agent (the "SUBORDINATION AGENT"), First Security Bank, National
Association, as Escrow Agent (the "ESCROW AGENT") and Wilmington Trust Company,
as Paying Agent (the "PAYING AGENT") (as in effect from time to time, the "NOTE
PURCHASE AGREEMENT"). Unless otherwise defined herein, capitalized terms used
herein shall have the meanings set forth in the Note Purchase Agreement or, to
the extent not defined therein, the Intercreditor Agreement.
Pursuant to Sections 1(b) of the Note Purchase Agreement, the undersigned
hereby notifies you, in respect of the Boeing [_______] aircraft with
manufacturer's serial number [______] (the "AIRCRAFT"), of the following:
(1) The Company has elected to treat the Aircraft as [a Leased Aircraft] [an
Owned Aircraft];
(2) The Scheduled Delivery Date of the Aircraft is [_________];
(3) The Funding Date for the Aircraft shall be [__________]; and
(4) The aggregate amount of each series of Equipment Notes to be issued, and
purchased by the respective Pass Through Trustees referred to below (each,
an "APPLICABLE PASS THROUGH TRUSTEE"), on the Funding Date, in connection
with the financing of such Aircraft is as follows:
(a) the Class A-1 Trustee shall purchase Series A-1 Equipment Notes in
the amount of $[__________];
(b) The Class A-2 Trustee shall purchase Series A-2 Equipment Notes in
the amount of $[__________]; and
(c) the Class B Trustee shall purchase Series B Equipment Notes in the
amount of $[__________].
The Company hereby instructs the Class A-1 Trustee to (i) execute a
Withdrawal Certificate in the form of Annex A hereto dated as of [__________]
and attach thereto a Notice of Purchase Withdrawal dated such date completed as
set forth on Exhibit A-1 hereto and (ii) deliver such Withdrawal Certificate and
Notice of Purchase Withdrawal to the applicable Escrow Agent.
The Company hereby instructs the Class A-2 Trustee to (i) execute a
Withdrawal Certificate in the form of Annex A hereto dated as of [__________]
and attach thereto a Notice of Purchase Withdrawal dated such date completed as
set forth on Exhibit A-2 hereto and (ii) deliver such Withdrawal Certificate and
Notice of Purchase Withdrawal to the applicable Escrow Agent.
The Company hereby instructs the Class B Trustee to (i) execute a
Withdrawal Certificate in the form of Annex A hereto dated as of [__________]
and attach thereto a Notice of Purchase Withdrawal dated such date completed as
set forth on Exhibit B hereto and (ii) deliver such Withdrawal Certificate and
Notice of Purchase Withdrawal to the applicable Escrow Agent.
The Company hereby instructs each Applicable Pass Through Trustee to (i)
purchase Equipment Notes of a series and in an amount set forth opposite such
Pass Through Trustee in clause (4) above with a portion of the proceeds [of the
withdrawals of Deposits referred to in the applicable Notice of Purchase
Withdrawal referred to above] [received by it from the sale of Certificates on
the Issuance Date] and (ii) re-deposit with the Depositary the excess, if any,
of the amount so withdrawn OVER the purchase price of such Equipment Notes.
The Company hereby instructs each Applicable Pass Through Trustee to
(a) enter into the Participation Agreement [____] dated as of [__________] among
the Company, as Lessee, Wilmington Trust Company, as Mortgagee and Loan
Participant, First Security Bank, National Association, as Owner Trustee, and
[__________], as Owner Participant, (b) perform its obligations thereunder and
(c) deliver such certificates, documents and legal opinions relating to such
Pass Through Trustee as required thereby. [The Company confirms that the Special
Indenture shall be utilized in lieu of the Leased Aircraft Indenture.]
____________
Eliminate each applicable clause if the specified Pass Through Trustee will not
purchase Equipment Notes for the Aircraft.
Eliminate if the specified Pass Through Trustee will not purchase Equipment
Notes for the Aircraft or if the Funding Date is the Issuance Date.
Eliminate if the specified Pass Through Trustee will not purchase Equipment
Notes for the Aircraft or if the Funding Date is the Issuance Date.
Eliminate if the specified Pass Through Trustee will not purchase Equipment
Notes for the Aircraft or if the Funding Date is the Issuance Date.
The Company hereby certifies that the Owner Participant with respect to
the Aircraft (A) is not an Affiliate of the Company and (B) based on the
representations of such Owner Participant, is either a Qualified Owner
Participant or a person whose obligations under the Owner Participant Agreements
(as defined in the Participation Agreement) are guaranteed by a Qualified Owner
Participant.
Yours faithfully,
Continental Airlines, Inc.
By: ________________________________________
Name:
Title:
SCHEDULE A
Wilmington Trust Company, as
Pass Through Trustee, Subordination
Agent and Mortgagee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
First Security Bank, National Association,
as Escrow Agent
00 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Corporate Trust Department
Facsimile: (000) 000-0000
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxxx
Facsimile: (000) 000-0000
Annex A
WITHDRAWAL CERTIFICATE
(Class ___)
First Security Bank, National Association,
as Escrow Agent
Ladies and Gentlemen:
Reference is made to the Escrow and Paying Agent Agreement, dated as
of April 19, 2001 (the "Agreement"). We hereby certify to you that the
conditions to the obligations of the undersigned to execute a Participation
Agreement pursuant to the Note Purchase Agreement have been satisfied. Pursuant
to Section 1.02(c) of the Agreement, please execute the attached Notice of
Withdrawal and immediately transmit by facsimile to the Depositary, at (212)
325-8319.
Capitalized terms used herein but not defined herein shall have the
meanings set forth in the Agreement.
Very truly yours,
WILMINGTON TRUST COMPANY,
not in its individual capacity by solely
as Pass Through Trustee
By: ____________________________________
Name:
Title:
Dated: As of [__________]
Exhibit A-1
NOTICE OF PURCHASE WITHDRAWAL
CREDIT SUISSE FIRST BOSTON
New York Branch
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telecopier: 000-000-0000
Gentlemen:
Reference is made to the Deposit Agreement (Class A-1) dated as of
April 19, 2001 (the "DEPOSIT AGREEMENT") between First Security Bank, National
Association, as Escrow Agent, and Credit Suisse First Boston, New York branch,
as Depositary (the "DEPOSITARY").
In accordance with Section 2.3(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the Deposit,
$[_______], Account No. [____].
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposit to [___________________], Account No. ____, Reference: _________] on
________ __, 20___, upon the telephonic request of a representative of the Pass
Through Trustee.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
as Escrow Agent
By: ____________________________________
Name:
Title:
Dated: As of [__________]
Exhibit A-2
NOTICE OF PURCHASE WITHDRAWAL
CREDIT SUISSE FIRST BOSTON
New York Branch
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telecopier: 000-000-0000
Gentlemen:
Reference is made to the Deposit Agreement (Class A-2) dated as of
April 19, 2001 (the "DEPOSIT AGREEMENT") between First Security Bank, National
Association, as Escrow Agent, and Credit Suisse First Boston, New York branch,
as Depositary (the "DEPOSITARY").
In accordance with Section 2.3(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the Deposit,
$[_______], Account No. [____].
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposit to [___________________], Account No. ____, Reference: _________] on
________ __, 20__, upon the telephonic request of a representative of the Pass
Through Trustee.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
as Escrow Agent
By: ____________________________________
Name:
Title:
Dated: As of [__________]
Exhibit B
NOTICE OF PURCHASE WITHDRAWAL
CREDIT SUISSE FIRST BOSTON
New York Branch
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telecopier: 000-000-0000
Gentlemen:
Reference is made to the Deposit Agreement (Class B) dated as of
April 19, 2001 (the "DEPOSIT AGREEMENT") between First Security Bank, National
Association, as Escrow Agent, and Credit Suisse First Boston, New York branch,
as Depositary (the "DEPOSITARY").
In accordance with Section 2.3(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the Deposit,
$[_______], Account No. [_____].
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposit to ___________________], Account No. ____, Reference: _________] on
________ __, 20__, upon the telephonic request of a representative of the Pass
Through Trustee.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
as Escrow Agent
By: ____________________________________
Name:
Title:
Dated: As of [__________]
EXHIBIT C-1 to
NOTE PURCHASE AGREEMENT
FORM OF OWNED AIRCRAFT PARTICIPATION AGREEMENT
(Filed Separately)
EXHIBIT C-2 to
NOTE PURCHASE AGREEMENT
FORM OF OWNED AIRCRAFT INDENTURE
(Filed Separately)
EXHIBIT D to
NOTE PURCHASE AGREEMENT
SECTION 16. OWNER PARTICIPANT'S RIGHT TO RESTRUCTURE
16.1 GENERAL RIGHT TO RESTRUCTURE
Lessee, Loan Participant and each Note Holder agree that after the
Delivery Date and subject to the limitations of Section 16.2, the original Owner
Participant (or any transferee Owner Participant that is an Affiliate of the
original Owner Participant) shall have the right to restructure the Transactions
using (a) a "cross-border lease," a tax lease or a head-lease/sublease structure
and (b) any other type of transaction, which may involve special structural
arrangements, as such Owner Participant may elect (any such structure described
above, a "Special Structure"). Any Special Structure may result in additional
persons participating in the Transactions, which persons shall agree to
provisions comparable to Sections 7.6.4(a) and 7.6.13. Subject to the provisions
of Sections 16.2 and 16.3, Lessee, Loan Participant and each Note Holder agree
to cooperate in the implementation of any such restructuring and take such
action as may reasonably be requested by the original Owner Participant to
accomplish such restructuring, including taking such actions as may be
reasonable or customary in the type of Special Structure selected. In connection
with any proposed Special Structure, Owner Participant shall provide all
information reasonably requested by Lessee, Loan Participant or any Note Holder
with respect thereto. The original Owner Participant shall be entitled to retain
all of the benefits of any such transaction.
16.2 LIMITATIONS ON RESTRUCTURING PROVISIONS; ADDITIONAL TERMS
16.2.1 LESSEE
(a) Notwithstanding Section 16.1 or 16.2.1(b), in no event shall any
such Special Structure (a) change the terms and conditions of Lessee's rights
and obligations, from those which Lessee would otherwise possess or be subject
to in the absence of any such Special Structure, in a manner which is materially
adverse to Lessee, (b) expose Lessee to any additional risks (including overall
tax risks) beyond those to which Lessee would be exposed in the absence of any
such Special Structure unless Lessee shall have been indemnified against such
additional risks by the original Owner Participant, or other participants in
such transaction (so long as such original Owner Participant or other
participants shall, as to their creditworthiness at the time any such indemnity
is given, be reasonably acceptable to Lessee) in a manner reasonably
satisfactory to Lessee. In no event shall Lessee be required to provide an
indemnity with respect to any foreign tax benefit of a Special Structure or to
indemnify against the failure of a head-lease not to constitute a true lease for
U.S. federal income tax purposes.
(b) In any Special Structure that may be entered into pursuant to
this Section 16, the Termination Values under the Lease (as the same may be
restructured) shall not be affected by the termination values under any
head-lease, except that any prepayment premiums and any funding or swap breakage
costs under such head-lease or similar arrangement will be added in calculating
the Termination Values and Stipulated Loss Values under the Lease (as the same
may be restructured). Further, upon implementation of any Special Structure, the
Stipulated Loss Values payable by Lessee under the Lease (as the same may be
restructured) shall in no event be less than the stipulated loss values payable
under the applicable head-lease or similar arrangement.
16.2.2 LOAN PARTICIPANT AND CERTIFICATE HOLDERS
Notwithstanding Section 16.1, any such Special Structure shall not,
and prior to the exercise of its rights thereunder, the Owner Participant shall
deliver an officer's certificate to the Pass Through Trustee that provides that
any such Special Structure shall not, (a) change the terms and conditions of
Loan Participant's, any Note Holder's or any Pass Through Indemnitee's rights
and obligations under the Operative Agreements or rights and obligations of
holders of Pass Through Certificates, from those which Loan Participant, Note
Holders, Pass Through Indemnitees and such Pass Through Certificate holders
would otherwise possess or be subject to in the absence of such Special
Structure (including, without limitation, the amount and timing of any payment
of principal, interest and Make-Whole Amount under the Equipment Notes, the
relative rights of the Note Holders with respect to such payments and such
holder of Pass Through Certificates and the priority of Mortgagee's Lien on the
Trust Indenture Estate under the Trust Indenture) or (b) expose Loan
Participant, any such Note Holder, any such Pass Through Indemnitee or any such
holder of Pass Through Certificates to any additional risks beyond those to
which Loan Participant, such Note Holder, Pass Through Indemnitee or such holder
of such Pass Through Certificates would be exposed in the absence of such
Special Structure. In addition, in no event shall any Special Structure be
permitted unless a written confirmation from the Rating Agencies (as defined in
the Note Purchase Agreement) is obtained prior to the implementation of such
Special Structure to the effect that such Special Structure will not adversely
affect the ratings of the Pass Through Certificates.
16.3 TRANSACTION EXPENSES
Whether or not any proposed restructuring transaction under this
Section 16 is consummated, the original Owner Participant shall pay (or cause to
be paid) the reasonable costs and expenses incurred by all parties in connection
therewith and shall pay the reasonable costs and expenses of the Rating Agencies
in connection with obtaining the confirmations referred to in Section 16.2.2;
PROVIDED, that, only in connection with a consummated transaction (unless Lessee
shall have, by failing to act in good faith, caused a transaction not to be
consummated), Lessee shall pay or reimburse such original Owner Participant for
the original Owner Participant's reasonable estimate of the costs and expenses
that would have been incurred by all parties if the Transactions had been
restructured as a head-lease/sublease transaction in which the original Owner
Participant, or an Affiliate or designee thereof, were the head-lessee/sublessor
and Lessee were the sublessee.
EXHIBIT E to
NOTE PURCHASE AGREEMENT
Section 6.2 may be amended to delete Section 6.2.9 in its entirety.
EXHIBIT F TO NOTE PURCHASE AGREEMENT
Subordination. (a) As between the Note Holders, this Trust Indenture
shall be a subordination agreement for purposes of Xxxxxxx 000 xx xxx Xxxxxx
Xxxxxx Bankruptcy Code, as amended from time to time.
(b) If any Note Holder receives any payment in respect of any
obligations owing hereunder, which is subsequently invalidated, declared
preferential, set aside and/or required to be repaid to a trustee, receiver or
other party, then, to the extent of such payment, such obligations intended to
be satisfied shall be revived and continue in full force and effect as if such
payment had not been received.
(c) Each of the Note Holders may take any of the following actions
without impairing its rights under this Trust Indenture:
(i) obtain a Lien on any property to secure any amounts owing to it
hereunder,
(ii) obtain the primary or secondary obligation of any other obligor
with respect to any amounts owing to it hereunder,
(iii) renew, extend, increase, alter or exchange any amounts owing
to it hereunder, or release or compromise any obligation of any obligor
with respect thereto,
(iv) refrain from exercising any right or remedy, or delay in
exercising such right or remedy, which it may have, or
(v) take any other action which might discharge a subordinated party
or a surety under applicable law;
provided, however, that the taking of any such actions by any of the Note
Holders shall not prejudice the rights or adversely affect the obligations of
any other party under this Trust Indenture.
