TRUST SUPPLEMENT No. 2001-2D-S
Dated July 31, 2001
between
WILMINGTON TRUST COMPANY
as Trustee,
and
CONTINENTAL AIRLINES, INC.
to
PASS THROUGH TRUST AGREEMENT
Dated as of September 25, 1997
$200,000,000
Continental Airlines Pass Through Trust 2001-2D-S
7.568% Continental Airlines
Pass Through Certificates,
Series 2001-2D-S
This Trust Supplement No. 2001-2D-S, dated as of July 31, 2001
(herein called the "TRUST SUPPLEMENT"), between Continental Airlines, Inc., a
Delaware corporation (the "COMPANY"), and Wilmington Trust Company (the
"TRUSTEE"), to the Pass Through Trust Agreement, dated as of September 25, 1997,
between the Company and the Trustee (the "BASIC AGREEMENT").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Basic Agreement, unlimited as to the aggregate
principal amount of Certificates (unless otherwise specified herein, capitalized
terms used herein without definition having the respective meanings specified in
the Basic Agreement) which may be issued thereunder, has heretofore been
executed and delivered;
WHEREAS, under the terms of seven series of Continental Airlines
pass through certificates previously issued and designated Series 1997-4,
1998-1, 1998-3, 1999-1, 1999-2, 2000-1 and 2000-2 (the "PRIOR SERIES"), the
Company is entitled to sell Series D Equipment Notes secured by aircraft
financed under each Prior Series;
WHEREAS, the Company has purchased the aircraft listed on Schedule I
to the Related Pass Through Trust Supplement (the "OWNED AIRCRAFT") prior to the
date of this Trust Supplement (the "ISSUANCE DATE") utilizing the proceeds of
the sale of secured equipment notes acquired by the pass through trustees under
the Prior Series;
WHEREAS, the Company has obtained commitments from Boeing pursuant
to the Aircraft Purchase Agreement for the delivery of the sixteen aircraft
listed in Schedule II to the Related Pass Through Trust Supplement (together
with any aircraft substituted therefor in accordance with the Aircraft Purchase
Agreement prior to the delivery thereof, the "ELIGIBLE AIRCRAFT"), and the
Company expects to purchase after the Issuance Date utilizing the proceeds of
(i) the sale of secured equipment notes to be acquired by the pass through
trustees under the 2000-2 Note Purchase Agreement and (ii) the Series D
Equipment Notes purchased pursuant to the Related Pass Through Trust Agreement
two of the ten Boeing 737-824 aircraft and two of the six Boeing 737-924
aircraft included in the Eligible Aircraft (such aircraft to be financed
hereunder, the "NEW AIRCRAFT");
WHEREAS, as of the Transfer Date, in the case of each Aircraft, the
Company will have issued pursuant to an Indenture, on a recourse basis,
Equipment Notes, including Series D Equipment Notes secured by such Aircraft;
WHEREAS, as of the Transfer Date, the Related Trustee will assign,
transfer and deliver all of such trustee's right, title and interest to the
trust property held by the Related Trustee to the Trustee pursuant to the
Assignment and Assumption Agreement;
WHEREAS, the Trustee, effective only, but automatically, upon
execution and delivery of the Assignment and Assumption Agreement, will be
deemed to have declared the creation of the Continental Airlines Pass Through
Trust 2001-2D-S (the "APPLICABLE TRUST") for the benefit of the Applicable
Certificateholders, and each Holder of Applicable Certificates outstanding as of
the Transfer Date, as the grantors of the Applicable Trust, by their respective
acceptances of such Applicable Certificates, will join in the creation of this
Applicable Trust with the Trustee;
WHEREAS, all Applicable Certificates deemed issued by the Applicable
Trust will evidence fractional undivided interests in the Applicable Trust and
will convey no rights, benefits or interests in respect of any property other
than the Trust Property except for those Applicable Certificates to which an
Escrow Receipt has been affixed;
WHEREAS, upon the execution and delivery of the Assignment and
Assumption Agreement, all of the conditions and requirements necessary to make
this Trust Supplement, when duly executed and delivered, a valid, binding and
legal instrument in accordance with its terms and for the purposes herein
expressed, have been done, performed and fulfilled, and the execution and
delivery of this Trust Supplement in the form and with the terms hereof have
been in all respects duly authorized;
WHEREAS, this Trust Supplement is subject to the provisions of the
Trust Indenture Act of 1939, as amended, and shall, to the extent applicable, be
governed by such provisions;
NOW THEREFORE, in consideration of the premises herein, it is agreed
between the Company and the Trustee as follows:
ARTICLE I
THE CERTIFICATES
Section 1.01. THE CERTIFICATES. The Applicable Certificates shall be
known as "7.568% Continental Airlines Pass Through Certificates, Series
2001-2D-S". Each Applicable Certificate represents a fractional undivided
interest in the Applicable Trust created hereby. The Applicable Certificates
shall be the only instruments evidencing a fractional undivided interest in the
Applicable Trust.
The terms and conditions applicable to the Applicable Certificates
are as follows:
(a) The aggregate principal amount of the Applicable Certificates
that shall be initially deemed issued under the Agreement shall be equal to
the aggregate principal amount of "Outstanding" pass through certificates
representing fractional undivided interests in the Related Trust on the
Transfer Date. Subject to the preceding sentence and Section 5.01 of this
Trust Supplement and except for Applicable Certificates authenticated and
delivered under Sections 3.03, 3.04, 3.05 and 3.06 of the Basic Agreement,
no Applicable Certificates shall be authenticated under the Agreement.
(b) The Regular Distribution Dates with respect to any payment of
Scheduled Payments means June 1 and December 1 of each year, commencing on
December 1, 2001, until payment of all of the Scheduled Payments to be made
under the Series D Equipment Notes has been made.
(c) The Special Distribution Dates with respect to the Applicable
Certificates means any Business Day on which a Special Payment is to be
distributed pursuant to the Agreement.
(d) At the Escrow Agent's request under the Escrow Agreement, the
Trustee shall affix the corresponding Escrow Receipt to each Applicable
Certificate. In any event, any transfer or exchange of any Applicable
Certificate shall also effect a transfer or exchange of the related Escrow
Receipt. Prior to the Final Withdrawal Date, no transfer or exchange of any
Applicable Certificate shall be permitted unless the corresponding Escrow
Receipt is attached thereto and also is so transferred or exchanged. By
acceptance of any Applicable Certificate to which an Escrow Receipt is
attached, each Holder of such an Applicable Certificate acknowledges and
accepts the restrictions on transfer of the Escrow Receipt set forth herein
and in the Escrow Agreement.
(e) (i) The Applicable Certificates shall be in the form attached as
Exhibit A to the Related Pass Through Trust Supplement, with such
appropriate insertions, omissions, substitutions and other variations as
are required or permitted by the Related Pass Through Trust Agreement or
the Agreement, as the case may be, or as the Trustee may deem appropriate,
to reflect the fact that the Applicable Certificates are being issued under
the Agreement as opposed to under the Related Pass Through Trust Agreement.
Any Person acquiring or accepting an Applicable Certificate or an interest
therein will, by such acquisition or acceptance, be deemed to represent and
warrant to and for the benefit of the Company that either (i) the assets of
an employee benefit plan subject to Title I of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or of a plan subject to
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"),
have not been used to purchase Applicable Certificates or an interest
therein or (ii) the purchase and holding of Applicable Certificates or an
interest therein is exempt from the prohibited transaction restrictions of
ERISA and the Code pursuant to one or more prohibited transaction statutory
or administrative exemptions.
(ii) The Applicable Certificates shall be Book-Entry Certificates
and shall be subject to the conditions set forth in the Letter of
Representations between the Company and the Clearing Agency attached as
Exhibit B to the Related Pass Through Trust Supplement.
(f) The "Participation Agreements" as defined in this Trust
Supplement are the "Note Purchase Agreements" referred to in the Basic
Agreement.
(g) The Applicable Certificates are subject to the Intercreditor
Agreements, the Deposit Agreement and the Escrow Agreement.
(h) The Applicable Certificates are not entitled to the benefits of
a Liquidity Facility.
(i) The Responsible Party is the Company.
(j) The "particular sections of the Note Purchase Agreement", for
purposes of clause (3) of Section 7.07 of the Basic Agreement, are Section
8.1 of each Participation Agreement.
(k) The Equipment Notes to be acquired and held in the Applicable
Trust, and the related Aircraft and Note Documents, are described in the
NPA.
ARTICLE II
DEFINITIONS
Section 2.01. DEFINITIONS. For all purposes of the Basic
Agreement as supplemented by this Trust Supplement, the following
capitalized terms have the following meanings (any term used herein which
is defined in both this Trust Supplement and the Basic Agreement shall have
the meaning assigned thereto in this Trust Supplement for purposes of the
Basic Agreement as supplemented by this Trust Supplement):
AGREEMENT: Means the Basic Agreement, as supplemented by this
Trust Supplement.
AIRCRAFT: Means each of the Owned Aircraft and each of the New
Aircraft or the Substitute Aircraft in respect of which a Participation
Agreement is entered into in accordance with the NPA (or any substitute
aircraft, including engines therefor, owned by the Company and securing one
or more Series D Equipment Notes).
AIRCRAFT PURCHASE AGREEMENT: Has the meaning specified in the
NPA.
APPLICABLE CERTIFICATE: Means any of the "Applicable
Certificates" issued by the Related Trust and that are "Outstanding" (as
defined in the Related Pass Through Trust Agreement) as of the Transfer
Date (the "TRANSFER DATE CERTIFICATES") and any Certificate issued in
exchange therefor or replacement thereof pursuant to the Agreement.
APPLICABLE CERTIFICATEHOLDER: Means the Person in whose name an
Applicable Certificate is registered on the Register for the Applicable
Certificates.
APPLICABLE TRUST: Has the meaning specified in the recitals
hereto.
ASSIGNMENT AND ASSUMPTION AGREEMENT: Means the assignment and
assumption agreement substantially in the form of Exhibit C to the Related
Pass Through Trust Supplement executed and delivered in accordance with
Section 7.01 of the Related Trust Supplement.
BASIC AGREEMENT: Has the meaning specified in the first paragraph
of this Trust Supplement,
BOEING: Means The Boeing Company.
BUSINESS DAY: Means any day other than a Saturday, a Sunday or a
day on which commercial banks are required or authorized to close in
Houston, Texas, New York, New York, Salt Lake City, Utah or, so long as any
Applicable Certificate is Outstanding, the city and state in which the
Trustee or any Loan Trustee maintains its Corporate Trust Office or
receives and disburses funds.
COMPANY: Has the meaning specified in the first paragraph of this
Trust Supplement.
CONTROLLING PARTY: Has the meaning specified in the applicable
Intercreditor Agreement.
DELIVERY NOTICE: Has the meaning specified in the NPA.
DELIVERY PERIOD TERMINATION DATE: Has the meaning specified in
the Related Pass Through Trust Supplement.
DEPOSIT AGREEMENT: Means the Deposit Agreement dated as of the
Issuance Date relating to the Applicable Certificates between the
Depositary and the Escrow Agent, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms.
DEPOSITARY: Means Credit Suisse First Boston, a banking
institution organized under the laws of Switzerland, acting through its New
York Branch.
DEPOSITS: Has the meaning specified in the Deposit Agreement.
DISTRIBUTION DATE: Means any Regular Distribution Date or Special
Distribution Date as the context requires.
ELIGIBLE AIRCRAFT: Has the meaning specified in the recitals
hereto.
EQUIPMENT NOTES: Means all of the equipment notes issued under
the Indentures.
ESCROW AGENT: Means, initially, Xxxxx Fargo Bank Northwest,
National Association, and any replacement or successor therefor appointed
in accordance with the Escrow Agreement.
ESCROW AGREEMENT: Means the Escrow and Paying Agent Agreement
dated as of the Issuance Date relating to the Applicable Certificates,
among the Escrow Agent, the Escrow Paying Agent, the Related Trustee (and
after the Transfer Date, the Trustee) and the Underwriters, as the same may
be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
ESCROW PAYING AGENT: Means the Person acting as paying agent
under the Escrow Agreement.
ESCROW RECEIPT: Means the receipt substantially in the form
annexed to the Escrow Agreement representing a fractional undivided
interest in the funds held in escrow thereunder.
FINAL MATURITY DATE: Means December 1, 2006.
FINAL WITHDRAWAL: Has the meaning specified in the Escrow
Agreement.
FINAL WITHDRAWAL DATE: Has the meaning specified in the Escrow
Agreement.
INDENTURE: Means each "Indenture" as defined in the Intercreditor
Agreement for any Prior Series.
INTERCREDITOR AGREEMENT: Means, for each Prior Series, the
Intercreditor Agreement for such Prior Series as listed on Schedule III to
the NPA, as amended by the Intercreditor Amendment applicable to such Prior
Series, as further amended, supplemented or otherwise modified from time to
time in accordance with its terms.
INTERCREDITOR AMENDMENT: Means, for each Prior Series, the
Amendment No. 1 to Intercreditor Agreement for such Prior Series dated as
of the Issuance Date among the Company, the Related Trustee (and after the
Transfer Date, the Trustee), the other trustees party thereto, the
liquidity providers relating to the pass through certificates issued under
such Prior Series and Wilmington Trust Company, as subordination agent and
as trustee under the Intercreditor Agreement for such Prior Series.
INVESTORS: Means the Underwriters together with all subsequent
beneficial owners of the Applicable Certificates.
ISSUANCE DATE: Has the meaning specified in the recitals hereto.
LEASED AIRCRAFT INDENTURE: Means each "Leased Aircraft Indenture"
as defined in the Intercreditor Agreement for any Prior Series.
NEW AIRCRAFT: Has the meaning specified in the recitals hereto.
NOTE DOCUMENTS: Means the Series D Equipment Notes and, with
respect to any such Series D Equipment Note, the Indenture and the
Participation Agreement relating to such Series D Equipment Note.
NPA: Means the Note Purchase Agreement dated as of July 31, 2001
among the Related Trustee (and after the Transfer Date, the Trustee) the
Company, the Escrow Agent, the Escrow Paying Agent and Wilmington Trust
Company, as subordination agent under each of the Intercreditor Agreements,
providing for, among other things, the purchase of Series D Equipment Notes
by the Trustee on behalf of the Trust, as the same may be further amended,
supplemented or otherwise modified from time to time, in accordance with
its terms.
OUTSTANDING: When used with respect to Applicable Certificates,
means, as of the date of determination, all Transfer Date Certificates, and
all other Applicable Certificates theretofore authenticated and delivered
under the Agreement, in each case except:
(i) Applicable Certificates theretofore canceled by the
Registrar or delivered to the Trustee or the Registrar for
cancellation;
(ii) Applicable Certificates for which money in the
full amount required to make the final distribution with
respect to such Applicable Certificates pursuant to Section
11.01 of the Basic Agreement has been theretofore deposited
with the Trustee in trust for the Applicable
Certificateholders as provided in Section 4.01 of the Basic
Agreement pending distribution of such money to such
Applicable Certificateholders pursuant to payment of such
final distribution; and
(iii) Applicable Certificates in exchange for or in
lieu of which other Applicable Certificates have been
authenticated and delivered pursuant to this Agreement.
OWNED AIRCRAFT: Has the meaning specified in the recitals hereto.
OWNED AIRCRAFT INDENTURE: Means each "Owned Aircraft Indenture"
as defined in the Intercreditor Agreement for any Prior Series.
PA AMENDMENT: Has the meaning specified in the NPA.
PARTICIPATION AGREEMENT: Means (i) in the case of each Owned
Aircraft, the Participation Agreement entered into prior to the Issuance
Date relating to such Owned Aircraft, as amended by the related PA
Amendment entered into pursuant to the NPA, as the same may be further
amended, supplemented or otherwise modified in accordance with its terms,
and (ii) in the case of each New Aircraft or Substitute Aircraft, a
Participation Agreement entered into after the Issuance Date by the Trustee
pursuant to the NPA, as the same may be amended, supplemented or otherwise
modified in accordance with its terms.
POOL BALANCE: Means, as of any date, (i) the original aggregate
face amount of the "Applicable Certificates" as defined in the Related Pass
Through Trust Agreement, less (ii) the aggregate amount of all payments
made in respect of the Applicable Certificates, the Applicable Certificates
(as defined in the Related Pass Through Trust Agreement) or the Deposits,
other than payments made in respect of interest or premium thereon or
reimbursement of any costs or expenses incurred in connection therewith.
The Pool Balance as of any Distribution Date shall be computed after giving
effect to any special distribution with respect to unused Deposits, payment
of principal of the Series D Equipment Notes or payment with respect to
other Trust Property and the distribution thereof to be made on that date.
POOL FACTOR: Means, as of any Distribution Date, the quotient
(rounded to the seventh decimal place) computed by dividing (i) the Pool
Balance by (ii) the original aggregate face amount of the "Applicable
Certificates" as defined in the Related Pass Through Trust Agreement. The
Pool Factor as of any Distribution Date shall be computed after giving
effect to any special distribution with respect to unused Deposits, payment
of principal of the Series D Equipment Notes or payments with respect to
other Trust Property and the distribution thereof to be made on that date.
PRIOR SERIES: Has the meaning specified in the recitals hereto.
PROSPECTUS SUPPLEMENT: Means the final Prospectus Supplement
dated July 13, 2001 relating to the offering of the Applicable
Certificates.
PTC EVENT OF DEFAULT: Means, with respect to any Prior Series,
"PTC Event of Default" as defined in the Intercreditor Agreement for such
Prior Series.
RELATED PASS THROUGH TRUST AGREEMENT: Means the Basic Agreement
as supplemented by the Trust Supplement No. 2001-2D-O dated the date hereof
(the "RELATED PASS THROUGH TRUST SUPPLEMENT"), relating to the Continental
Airlines Pass Through Trust 2001-2D-O and entered into by the Company and
the Related Trustee, as amended, supplemented or otherwise modified from
time to time in accordance with its terms.
RELATED TRUST: Means the Continental Pass Through Trust
2001-2D-O, formed under the Related Pass Through Trust Agreement.
RELATED TRUSTEE: Means the trustee under the Related Pass Through
Trust Agreement.
SENIOR CERTIFICATES: Has the meaning specified in Section 4.01(a)
of this Trust Supplement.
SENIOR TRUST AGREEMENTS: Has the meaning specified in Section
4.01(a) of this Trust Supplement.
SERIES D EQUIPMENT NOTES: Has the meaning specified in the NPA.
SPECIAL PAYMENT: Means any payment (other than a Scheduled
Payment) in respect of, or any proceeds of, any Equipment Note, Trust
Indenture Estate (as defined in each Leased Aircraft Indenture) or
Collateral (as defined in each Owned Aircraft Indenture).
SUBSTITUTE AIRCRAFT: Has the meaning specified in the NPA.
TRANSFER DATE: Means the moment of execution and delivery of the
Assignment and Assumption Agreement by each of the parties thereto.
TRANSFER DATE CERTIFICATES: Has the meaning specified in the
definition of "Applicable Certificates".
TRIGGERING EVENT: Means, with respect to any Prior Series,
"Triggering Event" as defined in the Intercreditor Agreement for such Prior
Series.
TRUST PROPERTY: Means (i) subject to the applicable Intercreditor
Agreement, each Series D Equipment Note held as the property of the
Applicable Trust, all monies at any time paid thereon and all monies due
and to become due thereunder, (ii) funds from time to time deposited in the
Certificate Account and the Special Payments Account and, subject to the
applicable Intercreditor Agreement, any proceeds from the sale by the
Trustee pursuant to Article VI of the Basic Agreement of any Series D
Equipment Note and (iii) all rights of the Applicable Trust and the
Trustee, on behalf of the Applicable Trust, under the Intercreditor
Agreements, the Escrow Agreement and the NPA, including, without
limitation, all rights to receive certain payments thereunder, and all
monies paid to the Trustee on behalf of the Applicable Trust pursuant to
the Intercreditor Agreements, PROVIDED that rights with respect to the
Deposits or under the Escrow Agreement will not constitute Trust Property.
TRUST SUPPLEMENT: Has the meaning specified in the first
paragraph of this trust supplement.
TRUSTEE: Has the meaning specified in the first paragraph of this
Trust Supplement.
2000-2 NOTE PURCHASE AGREEMENT: Has the meaning specified in the
NPA.
UNDERWRITERS: Means Xxxxxx Xxxxxxx & Co. Incorporated and Credit
Suisse First Boston Corporation.
UNDERWRITING AGREEMENT: Means the Underwriting Agreement dated
July 13, 2001 among the Underwriters, the Company and the Depositary, as
the same may be amended, supplemented or otherwise modified from time to
time in accordance with its terms.
ARTICLE III
STATEMENTS TO CERTIFICATEHOLDERS
Section 3.01. STATEMENTS TO APPLICABLE CERTIFICATEHOLDERS. (a) On
each Distribution Date, the Trustee will include with each distribution to
Applicable Certificateholders of a Scheduled Payment or Special Payment, as the
case may be, a statement setting forth the information provided below (in the
case of a Special Payment, reflecting in part the information provided by the
Escrow Paying Agent under the Escrow Agreement). Such statement shall set forth
(per $1,000 face amount Applicable Certificate as to (ii), (iii), (iv) and (v)
below) the following information:
(i) the aggregate amount of funds distributed on such Distribution
Date under the Agreement and under the Escrow Agreement, indicating the
amount allocable to each source;
(ii) the amount of such distribution under the Agreement allocable
to principal and the amount allocable to premium, if any;
(iii) the amount of such distribution under the Agreement allocable
to interest;
(iv) the amount of such distribution under the Escrow Agreement
allocable to interest;
(v) the amount of such distribution under the Escrow Agreement
allocable to unused Deposits, if any; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Applicable Certificates registered in the name
of a Clearing Agency, on the Record Date prior to each Distribution Date, the
Trustee will request from such Clearing Agency a securities position listing
setting forth the names of all Clearing Agency Participants reflected on such
Clearing Agency's books as holding interests in the Applicable Certificates on
such Record Date. On each Distribution Date, the Trustee will mail to each such
Clearing Agency Participant the statement described above and will make
available additional copies as requested by such Clearing Agency Participant for
forwarding to holders of interests in the Applicable Certificates.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the Trustee
shall furnish to each Person who at any time during such calendar year was an
Applicable Certificateholder of record a statement containing the sum of the
amounts determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and
(a)(v) above for such calendar year or, in the event such Person was an
Applicable Certificateholder of record during a portion of such calendar year,
for such portion of such year, and such other items as are readily available to
the Trustee and which an Applicable Certificateholder shall reasonably request
as necessary for the purpose of such Applicable Certificateholder's preparation
of its federal income tax returns. Such statement and such other items shall be
prepared on the basis of information supplied to the Trustee by the Clearing
Agency Participants and shall be delivered by the Trustee to such Clearing
Agency Participants to be available for forwarding by such Clearing Agency
Participants to the holders of interests in the Applicable Certificates in the
manner described in Section 3.01(a) of this Trust Supplement.
(c) Promptly following the date of any early redemption or any
default in the payment of principal or interest in respect of, any of the Series
D Equipment Notes held in the Applicable Trust, or any Final Withdrawal, the
Trustee (if the Related Trustee has not already done so) shall furnish to
Applicable Certificateholders of record on such date a statement setting forth
(x) the expected Pool Balance for the Regular Distribution Date following such
date and (y) the Pool Factor for such Regular Distribution Date. With respect to
the Applicable Certificates registered in the name of a Clearing Agency, on the
Transfer Date, the Trustee (if the Related Trustee has not already done so) will
request from such Clearing Agency a securities position listing setting forth
the names of all Clearing Agency Participants reflected on such Clearing
Agency's books as holding interests in the "Applicable Certificates" (as defined
in the Related Pass Through Trust Agreement) on the Delivery Period Termination
Date. The Trustee (if the Related Trustee has not already done so) will mail to
each such Clearing Agency Participant the statement described above and will
make available additional copies as requested by such Clearing Agency
Participant for forwarding to holders of interests in the Applicable
Certificates.
(d) This Section 3.01 supersedes and replaces Section 4.03 of the
Basic Agreement, with respect to the Applicable Trust.
ARTICLE IV
DEFAULT
Section 4.01. PURCHASE RIGHTS OF CERTIFICATEHOLDERS. (a) At any time
after the occurrence and during the continuation of a Triggering Event under a
Prior Series, each Applicable Certificateholder shall have the right (which
shall not expire (i) in the case of the 1998-3, 1999-2, 2000-1 or 2000-2 Prior
Series, (x) upon any purchase of Class A-2 Certificates issued under such Prior
Series pursuant to the Class A-1 Trust Agreement with respect to such Prior
Series, (y) any purchase of Class A-1 Certificates issued under such Prior
Series pursuant to the Class A-2 Trust Agreement with respect to such Prior
Series or (z) any purchase of Class A-1 Certificates issued under such Prior
Series and Class A-2 Certificates issued under such Prior Series pursuant to the
Class B Trust Agreement with respect to such Prior Series, (ii) in the case of
the 1997-4, 1998-1 or 1999-1 Prior Series, any purchase of Class A Certificates
issued under such Prior Series pursuant to the Class B Trust Agreement with
respect to such Prior Series, (iii) in the case of the 1998-3, 1999-2 or 2000-1
Prior Series, (x) any purchase of Class A-1 Certificates issued under such Prior
Series, Class A-2 Certificates issued under such Prior Series, Class B
Certificates issued under such Prior Series and Class C-2 Certificates issued
under such Prior Series pursuant to the Class C-1 Trust Agreement with respect
to such Prior Series or (y) any purchase of Class A-1 Certificates issued under
such Prior Series, Class A-2 Certificates issued under such Prior Series, Class
B Certificates issued under such Prior Series and Class C-1 Certificates issued
under such Prior Series pursuant to the Class C-2 Trust Agreement with respect
to such Prior Series, (iv) in the case of the 1997-4, 1998-1 or 1999-1 Prior
Series, any purchase of Class A Certificates issued under such Prior Series and
Class B Certificates issued under such Prior Series pursuant to the Class C
Trust Agreement with respect to such Prior Series, and (v) in the case of the
2000-2 Prior Series, any purchase of Class A-1 Certificates issued under such
Prior Series, Class A-2 Certificates issued under such Prior Series and Class B
Certificates issued under such Prior Series pursuant to the Class C Trust
Agreement with respect to such Prior Series) to purchase, for the purchase
prices set forth in (I) in the case of the 1997-4, 1998-1 or 1999-1 Prior
Series, the Class A Trust Agreement with respect to such Prior Series, the Class
B Trust Agreement with respect to such Prior Series and the Class C Trust
Agreement with respect to such Prior Series, (II) in the case of the 1998-3,
1999-2 or 2000-1 Prior Series, the Class A-1 Trust Agreement with respect to
such Prior Series, the Class A-2 Trust Agreement with respect such Prior Series,
the Class B Trust Agreement with respect to such Prior Series, the Class C-1
Trust Agreement with respect to such Prior Series and the Class C-2 Trust
Agreement with respect to such Prior Series, or (III) in the case of the 2000-2
Prior Series, the Class A-1 Trust Agreement with respect to such Prior Series,
the Class A-2 Trust Agreement with respect to such Prior Series, the Class B
Trust Agreement with respect to such Prior Series and the Class C Trust
Agreement with respect to such Prior Series (with respect to such Prior Series,
the "SENIOR TRUST AGREEMENTS"), respectively, all, but not less than all (X) in
the case of the 1997-4, 1998-1 or 1999-1 Prior Series, the Class A Certificates
issued under such Prior Series, the Class B Certificates issued under such Prior
Series and the Class C Certificates issued under such Prior Series, (Y) in the
case of the 1998-3, 1999-2 or 2000-1 Prior Series, the Class A-1 Certificates
issued under such Prior Series, the Class A-2 Certificates issued under such
Prior Series, the Class B Certificates issued under such Prior Series, the Class
C-1 Certificates issued under such Prior Series and the Class C-2 Certificates
issued under such Prior Series, or (Z) in the case of the 2000-2 Prior Series,
the Class A-1 Certificates issued under such Prior Series, the Class A-2
Certificates issued under such Prior Series, the Class B Certificates issued
under such Prior Series and the Class C Certificates issued under such Prior
Series (with respect to such Prior Series, the "SENIOR CERTIFICATES") upon ten
days' written notice to the trustees under each of the Senior Trust Agreements
with respect to such Prior Series and each other Applicable Certificateholder,
PROVIDED that (A) if prior to the end of such ten-day period any other
Applicable Certificateholder notifies such purchasing Applicable
Certificateholder that such other Applicable Certificateholder wants to
participate in such purchase, then such other Applicable Certificateholder may
join with the purchasing Applicable Certificateholder to purchase all, but not
less than all, of the Senior Certificates with respect to such Prior Series pro
rata based on the Fractional Undivided Interest in the Applicable Trust held by
each such Applicable Certificateholder and (B) if prior to the end of such
ten-day period any other Applicable Certificateholder fails to notify the
purchasing Applicable Certificateholder of such other Applicable
Certificateholder's desire to participate in such a purchase, then such other
Applicable Certificateholder shall lose its right to purchase the Senior
Certificates with respect to such Prior Series pursuant to this Section 4.01(a).
As used in this Section 4.01 and elsewhere in this Trust Supplement
with respect to any Prior Series, the terms "Class A-1 Certificate", "Class A-1
Trust Agreement", "Class A-2 Certificate", "Class A-2 Trust Agreement", "Class A
Certificate", "Class A Trust Agreement", "Class B Certificate", "Class B Trust
Agreement", "Class C-1 Certificate", "Class C-1 Trust Agreement", "Class C-2
Certificate", "Class C-2 Trust Agreement", "Class C Certificate" and "Class C
Trust Agreement" shall have the respective meanings assigned to such terms in
the Intercreditor Agreement for such Prior Series.
(b) This Section 4.01 supersedes and replaces Section 6.01(b) of the
Basic Agreement, with respect to the Applicable Trust.
Section 4.02. AMENDMENT OF SECTION 6.05 OF THE BASIC AGREEMENT.
Section 6.05 of the Basic Agreement shall be amended, with respect to the
Applicable Trust, by deleting the phrase "and thereby annul any Direction given
by such Certificateholders or the Trustee to such Loan Trustee with respect
thereto," set forth in the first sentence thereof.
ARTICLE V
THE TRUSTEE
Section 5.01. ACQUISITION OF TRUST PROPERTY. (a) The Trustee is
hereby irrevocably authorized and directed to execute and deliver the Assignment
and Assumption Agreement on the date specified in Section 7.01 of the Related
Pass Through Trust Supplement, subject only to the satisfaction of the
conditions set forth in said Section 7.01. The Agreement (except only for this
sentence and the immediately preceding sentence hereof, which are effective upon
execution and delivery hereof) shall become effective upon the execution and
delivery of the Assignment and Assumption Agreement by the Trustee and the
Related Trustee, automatically and without any further signature or action on
the part of the Company and the Trustee, and shall thereupon constitute the
legal, valid and binding obligation of the parties hereto enforceable against
each of the parties hereto in accordance with its terms. Upon such execution and
delivery of the Assignment and Assumption Agreement, the Related Trust shall be
terminated, the Applicable Certificateholders shall receive beneficial interests
in the Applicable Trust in exchange for their interests in the Related Trust
equal to their respective beneficial interests in the Related Trust and the
"Outstanding" (as defined in the Related Pass Through Trust Agreement) pass
through certificates representing fractional undivided interests in the Related
Trust shall be deemed for all purposes of the Agreement, without further
signature or action of any party or Certificateholder, to be Certificates
representing the same Fractional Undivided Interests in the Trust and Trust
Property. By acceptance of its Applicable Certificate, each Applicable
Certificateholder consents to and ratifies such assignment, transfer and
delivery of the trust property of the Related Trust to the Trustee upon the
execution and delivery of the Assignment and Assumption Agreement. The
provisions of this Section 5.01(a) supersede and replace the provisions of
Section 2.02 of the Basic Agreement with respect to the Applicable Trust, and
all provisions of the Basic Agreement relating to Postponed Notes or Section
2.02 of the Basic Agreement shall not apply to the Applicable Trust.
(b) The Trustee, upon the execution and delivery of the Assignment
and Assumption Agreement, acknowledges its acceptance of all right, title and
interest in and to the Trust Property and declares that the Trustee holds and
will hold such right, title and interest for the benefit of all then present and
future Applicable Certificateholders, upon the trusts herein and in the Basic
Agreement set forth. By the acceptance of each Applicable Certificate issued to
it under the Related Pass Through Trust Agreement and deemed issued under the
Agreement, each Holder of any such Applicable Certificate as grantor of the
Applicable Trust thereby joins in the creation and declaration of the Applicable
Trust. The provisions of this Section 5.01(b) supersede and replace the
provisions of Section 2.03 of the Basic Agreement, with respect to the
Applicable Trust. The Trust shall not be authorized or empowered to purchase any
Series D Equipment Note issued pursuant to the last sentence of the first
paragraph of Section 2.02 of any Owned Aircraft Indenture.
Section 5.02. [Intentionally Omitted]
Section 5.03. THE TRUSTEE. (a) Subject to Section 5.04 of this Trust
Supplement and Section 7.15 of the Basic Agreement, the Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Trust Supplement, the Deposit Agreement, the NPA or the
Escrow Agreement or the due execution hereof or thereof by the Company or the
other parties thereto (other than the Trustee), or for or in respect of the
recitals and statements contained herein or therein, all of which recitals and
statements are made solely by the Company, except that the Trustee hereby
represents and warrants that each of this Trust Supplement, the Basic Agreement,
each Applicable Certificate, each Intercreditor Agreement, each Intercreditor
Amendment, each PA Amendment, the NPA and the Escrow Agreement has been executed
and delivered by one of its officers who is duly authorized to execute and
deliver such document on its behalf.
(b) Except as herein otherwise provided and except during the
continuation of an Event of Default in respect of the Applicable Trust created
hereby, no duties, responsibilities or liabilities are assumed, or shall be
construed to be assumed, by the Trustee by reason of this Trust Supplement other
than as set forth in the Agreement, and this Trust Supplement is executed and
accepted on behalf of the Trustee, subject to all the terms and conditions set
forth in the Agreement, as fully to all intents as if the same were herein set
forth at length.
Section 5.04. REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE. The
Trustee hereby represents and warrants, on the Transfer Date, that:
(a) the Trustee has full power, authority and legal right to receive
the Trust Property assigned by the Related Trustee, assume the obligations
under, and perform, the Assignment and Assumption Agreement, this Trust
Supplement, the Intercreditor Amendments, the Escrow Agreement, the NPA and
the Note Documents to which it is a party and to perform the Intercreditor
Agreements and has taken all necessary action to authorize such receipt,
assumption and performance by it of this Trust Supplement, the
Intercreditor Amendments, the Escrow Agreement, the NPA and the Note
Documents to which it is a party and the performance by it of the
Intercreditor Agreements;
(b) the receipt of the Trust Property under the Assignment and
Assumption Agreement and the performance by the Trustee of the Assignment
and Assumption Agreement, this Trust Supplement, the Intercreditor
Amendments, the Escrow Agreement, the NPA and the Note Documents to which
it is a party and the performance by the Trustee of the Intercreditor
Agreements (i) will not violate any provision of any United States federal
law or the law of the state of the United States where it is located
governing the banking and trust powers of the Trustee or any order, writ,
judgment, or decree of any court, arbitrator or governmental authority
applicable to the Trustee or any of its assets, (ii) will not violate any
provision of the articles of association or by-laws of the Trustee, and
(iii) will not violate any provision of, or constitute, with or without
notice or lapse of time, a default under, or result in the creation or
imposition of any lien on any properties included in the Trust Property
pursuant to the provisions of any mortgage, indenture, contract, agreement
or other undertaking to which it is a party, which violation, default or
lien could reasonably be expected to have an adverse effect on the
Trustee's performance or ability to perform its duties hereunder or
thereunder or on the transactions contemplated herein or therein;
(c) the receipt of the Trust Property under the Assignment and
Assumption Agreement and the performance by the Trustee of the Assignment
and Assumption Agreement, this Trust Supplement, the Intercreditor
Amendments, the Escrow Agreement, the NPA and the Note Documents to which
it is a party and the performance by the Trustee of the Intercreditor
Agreements will not require the authorization, consent, or approval of, the
giving of notice to, the filing or registration with, or the taking of any
other action in respect of, any governmental authority or agency of the
United States or the state of the United States where it is located
regulating the banking and corporate trust activities of the Trustee; and
(d) the Assignment and Assumption Agreement has been duly executed
and delivered by the Trustee and this Trust Supplement, the Intercreditor
Agreements, the Intercreditor Amendments, the Escrow Agreement, the NPA and
the Note Documents to which it is a party have been, or will be, as
applicable, duly executed and delivered by the Trustee and constitute, or
will constitute, as applicable, the legal, valid and binding agreements of
the Trustee, enforceable against it in accordance with their respective
terms; PROVIDED, HOWEVER, that enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the rights of creditors generally and (ii) general
principles of equity.
Section 5.05. TRUSTEE LIENS. The Trustee in its individual capacity
agrees, in addition to the agreements contained in Section 7.17 of the Basic
Agreement, that it will at its own cost and expense promptly take any action as
may be necessary to duly discharge and satisfy in full any Trustee's Liens on or
with respect to the Trust Property which is attributable to the Trustee in its
individual capacity and which is unrelated to the transactions contemplated by
the Intercreditor Agreements or the NPA.
ARTICLE VI
ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS
Section 6.01. AMENDMENT OF SECTION 5.02 OF THE BASIC AGREEMENT.
Section 5.02 of the Basic Agreement shall be amended, with respect to the
Applicable Trust, by (i) replacing the phrase "of the Note Documents and of this
Agreement" set forth in paragraph (b) thereof with the phrase "of the Note
Documents, of the NPA and of this Agreement" and (ii) replacing the phrase "of
this Agreement and any Note Document" set forth in the last paragraph of Section
5.02 with the phrase "of this Agreement, the NPA and any Note Document".
Section 6.02. SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF APPLICABLE
CERTIFICATEHOLDERS. Without limitation of Section 9.01 of the Basic Agreement,
under the terms of, and subject to the limitations contained in, Section 9.01 of
the Basic Agreement, the Company may (but will not be required to), and the
Trustee (subject to Section 9.03 of the Basic Agreement) shall, at the Company's
request, at any time and from time to time, enter into one or more agreements
supplemental to the Escrow Agreement, the NPA or the Deposit Agreement, for any
of the purposes set forth in clauses (1) through (9) of such Section 9.01, and
(without limitation of the foregoing or Section 9.01 of the Basic Agreement) (a)
clauses (2) and (3) of such Section 9.01 shall also be deemed to include the
Company's obligations under (in the case of clause (2)), and the Company's
rights and powers conferred by (in the case of clause (3)), the NPA, and (b)
references in clauses (4), (6) and (7) of such Section 9.01 to "any
Intercreditor Agreement" shall also be deemed to refer to "any Intercreditor
Agreement, the Escrow Agreement, the NPA or the Deposit Agreement".
Section 6.03. SUPPLEMENTAL AGREEMENTS WITH CONSENT OF APPLICABLE
CERTIFICATEHOLDERS. Without limitation of Section 9.02 of the Basic Agreement,
the provisions of Section 9.02 of the Basic Agreement shall apply to agreements
or amendments for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Escrow Agreement, the Deposit
Agreement or the NPA or modifying in any manner the rights and obligations of
the Applicable Certificateholders under the Escrow Agreement, the Deposit
Agreement or the NPA; provided that (a) the provisions of Section 9.02(1) of the
Basic Agreement shall be deemed to include reductions in any manner of, or delay
in the timing of, any receipt by the Applicable Certificateholders of payments
upon the Deposits (b) the reference in clause (2) of such Section 9.02 to "this
Agreement" shall also be deemed to refer to "this Agreement and the related
Intercreditor Agreement" and (c) the reference in clause (3) of such Section
9.02 to "the Intercreditor Agreement" shall be deemed to refer to "any
Intercreditor Agreement".
ARTICLE VII
TERMINATION OF TRUST
Section 7.01. TERMINATION OF THE APPLICABLE TRUST. (a) The
respective obligations and responsibilities of the Company and the Trustee with
respect to the Applicable Trust shall terminate upon the distribution to all
Applicable Certificateholders and the Trustee of all amounts required to be
distributed to them pursuant to the Agreement and the disposition of all
property held as part of the Trust Property; PROVIDED, HOWEVER, that in no event
shall the Applicable Trust continue beyond one hundred ten (110) years following
the date of the execution of this Trust Supplement.
Notice of any termination, specifying the Distribution Date upon
which the Applicable Certificateholders may surrender their Applicable
Certificates to the Trustee for payment of the final distribution and
cancellation, shall be mailed promptly by the Trustee to Applicable
Certificateholders not earlier than the 60th day and not later than the 15th day
next preceding such final Distribution Date specifying (A) the Distribution Date
upon which the proposed final payment of the Applicable Certificates will be
made upon presentation and surrender of Applicable Certificates at the office or
agency of the Trustee therein specified, (B) the amount of any such proposed
final payment, and (C) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Applicable Certificates at the office or agency of the
Trustee therein specified. The Trustee shall give such notice to the Registrar
at the time such notice is given to Applicable Certificateholders. Upon
presentation and surrender of the Applicable Certificates in accordance with
such notice, the Trustee shall cause to be distributed to Applicable
Certificateholders such final payments.
In the event that all of the Applicable Certificateholders shall not
surrender their Applicable Certificates for cancellation within six months after
the date specified in the above-mentioned written notice, the Trustee shall give
a second written notice to the remaining Applicable Certificateholders to
surrender their Applicable Certificates for cancellation and receive the final
distribution with respect thereto. No additional interest shall accrue on the
Applicable Certificates after the Distribution Date specified in the first
written notice. In the event that any money held by the Trustee for the payment
of distributions on the Applicable Certificates shall remain unclaimed for two
years (or such lesser time as the Trustee shall be satisfied, after sixty days'
notice from the Company, is one month prior to the escheat period provided under
applicable law) after the final distribution date with respect thereto, the
Trustee shall pay to each Loan Trustee the appropriate amount of money relating
to such Loan Trustee and shall give written notice thereof to the Company.
(b) The provisions of this Section 7.01 supersede and replace the
provisions of Section 11.01 of the Basic Agreement in its entirety, with respect
to the Applicable Trust.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. BASIC AGREEMENT RATIFIED. Except and so far as herein
expressly provided, all of the provisions, terms and conditions of the Basic
Agreement are in all respects ratified and confirmed; and the Basic Agreement
and this Trust Supplement shall be taken, read and construed as one and the same
instrument. All replacements of provisions of, and other modifications of the
Basic Agreement set forth in this Trust Supplement are solely with respect to
the Applicable Trust.
SECTION 8.02. GOVERNING LAW. THE AGREEMENT AND THE APPLICABLE
CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK. THIS SECTION 8.02 SUPERSEDES AND REPLACES SECTION 12.05
OF THE BASIC AGREEMENT, WITH RESPECT TO THE APPLICABLE TRUST.
Section 8.03. EXECUTION IN COUNTERPARTS. This Trust Supplement may
be executed in any number of counterparts, each of which shall be an original,
but such counterparts shall together constitute but one and the same instrument.
Section 8.04. INTENTION OF PARTIES. The parties hereto intend that
the Applicable Trust be classified for U.S. federal income tax purposes as a
grantor trust under Subpart E, Part I of Subchapter J of the Internal Revenue
Code of 1986, as amended, and not as a trust or association taxable as a
corporation or as a partnership. Each Applicable Certificateholder and Investor,
by its acceptance of its Applicable Certificate or a beneficial interest
therein, agrees to treat the Applicable Trust as a grantor trust for all U.S.
federal, state and local income tax purposes. The powers granted and obligations
undertaken pursuant to the Agreement shall be so construed so as to further such
intent.
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Trust Supplement to be duly executed by their respective officers thereto duly
authorized, as of the day and year first written above.
CONTINENTAL AIRLINES, INC.
By:
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Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee
By:
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Name:
Title:
