NOTE PURCHASE AGREEMENT Dated as of July 1, 2009 Among CONTINENTAL AIRLINES, INC., WILMINGTON TRUST COMPANY, as Pass Through Trustee under the Pass Through Trust Agreement WILMINGTON TRUST COMPANY, as Subordination Agent WELLS FARGO BANK NORTHWEST,...
________________________________________________________________
Dated as
of July 1, 2009
Among
CONTINENTAL
AIRLINES, INC.,
WILMINGTON
TRUST COMPANY,
as Pass
Through Trustee under the
Pass
Through Trust Agreement
WILMINGTON
TRUST COMPANY,
as
Subordination Agent
XXXXX
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as Escrow
Agent
and
WILMINGTON
TRUST COMPANY,
as Paying
Agent
________________________________________________________________
Page
Schedules
Annex
Exhibits
This NOTE
PURCHASE AGREEMENT, dated as of July 1, 2009, 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 the Pass Through Trust Agreement (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) XXXXX FARGO BANK
NORTHWEST, NATIONAL ASSOCIATION, a national banking association, as Escrow Agent
(in such capacity together with its successors in such capacity, the "Escrow Agent"), under
the Escrow and Paying Agent Agreement (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
the Escrow and Paying Agent Agreement.
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 (i) is currently the owner of the three Boeing 777-224
aircraft, two Boeing 757-224 aircraft, three Boeing 737-824 aircraft and four
Boeing 737-724 aircraft listed in Part A of Schedule I hereto (the "Owned Aircraft"),
each of which is subject to an existing security interest, and (ii) has obtained
commitments from the Manufacturer pursuant to the Aircraft Purchase Agreement
for the delivery of the seven Boeing 737-924ER aircraft listed in Part B of
Schedule I hereto (together with any aircraft substituted therefor in accordance
with the Aircraft Purchase Agreement prior to the delivery thereof, the "Eligible
Aircraft");
WHEREAS,
pursuant to this Agreement the Company wishes to finance (i) each Owned Aircraft
after the existing security interest on such Owned Aircraft has been discharged
and (ii) a portion of the purchase price of five aircraft included in the
Eligible Aircraft (such Eligible Aircraft financed hereunder, the "New Aircraft" and,
together with the Owned Aircraft, the “Aircraft”);
WHEREAS,
pursuant to the Basic Pass Through Trust Agreement and the Trust Supplement set
forth in Schedule II hereto, and concurrently with the execution and delivery of
this Agreement, a grantor trust (the "Pass Through Trust")
has 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 the financing of the Aircraft contemplated hereby;
WHEREAS,
the Company has entered into the Underwriting Agreement, dated as of June 16,
2009 (the "Underwriting
Agreement") with the Underwriters named therein (the "Underwriters"), which
provides that the Company will cause the Pass Through Trustee to issue and sell
the Certificates to the Underwriters on the Issuance Date;
WHEREAS,
concurrently with the execution and delivery of this Agreement, (i) the Escrow
Agent and the Depositary have entered into the Deposit Agreement, dated as of
the Issuance Date, relating to the Pass Through Trust (the "Deposit Agreement")
whereby the 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 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 Trustee, Underwriters, Paying Agent and Escrow Agent have
entered into the Escrow and Paying Agent Agreement, dated as of the Issuance
Date, relating to the Pass Through Trust (the "Escrow and Paying Agent
Agreement"), 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 Escrow Agent and (b) the Escrow Agent, upon the
Depositary receiving such amount, agreed to deliver escrow receipts to be
affixed to each Certificate;
WHEREAS,
upon receipt of a Closing Notice with respect to an Aircraft, subject to the
terms and conditions of this Agreement, the Pass Through Trustee will enter into
the applicable Financing Agreements relating to such Aircraft;
WHEREAS,
upon the financing of each Aircraft, the Pass Through Trustee will fund its
purchase of Equipment Notes with the proceeds of one or more Deposits withdrawn
by the Escrow Agent under the Deposit Agreement (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) Xxxxxxx
Xxxxx Bank USA (the "Liquidity Provider"),
has entered into a revolving credit agreement, for the benefit of the
Certificateholders of the Pass Through Trust, with the Subordination Agent, as
agent for the Pass Through Trustee on behalf of the Pass Through Trust (such
revolving credit agreement with the Liquidity Provider, the "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").
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
Aircraft. (a) The Company confirms that (i) it
currently owns the Owned Aircraft and (ii) it has entered into the Aircraft
Purchase Agreement 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 Aircraft Purchase
Agreement. The Company agrees to finance the 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 A hereto (a "Closing Notice") of
the scheduled closing date (the "Scheduled Closing
Date") (or, in the case of a substitute Closing Notice under Section 1(e)
or (f) hereof, one Business Day's prior notice) in respect of the financing of
each Aircraft under this Agreement, which notice shall:
(i)
specify the Scheduled Closing Date of such 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);
(ii)
instruct the 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 Closing Notice and to perform its obligations
thereunder;
(iii)
instruct the Pass Through Trustee to instruct the Escrow Agent to provide
a Notice of Purchase Withdrawal to the Depositary with respect to the Equipment
Notes to be issued to the Pass Through Trustee in connection with the financing
of such Aircraft (except in the case of any such financing on the Issuance
Date); and
(iv)
specify the aggregate principal amount of the Equipment Notes to be issued, and
purchased by the Pass Through Trustee, in connection with the financing of such
Aircraft scheduled on such Funding Date (which shall in all respects comply with
the Required Terms).
Notwithstanding
the foregoing, in the case of any Aircraft to be financed hereunder on the
Issuance Date, the Closing Notice therefor may be delivered to the parties
hereto on the Issuance Date.
(c) Upon
receipt of a Closing Notice, the Pass Through Trustee shall, and shall cause the
Subordination Agent to, enter into and perform their respective obligations
under the Participation Agreement specified in such Closing Notice, provided that such
Participation Agreement and the Indenture to be entered into pursuant to such
Participation Agreement shall be in the forms thereof annexed hereto in all
material respects 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 Pass Through Trustee 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 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
Required Terms. Notwithstanding the foregoing, an Indenture may be
modified to the extent required for the issuance of Equipment Notes pursuant to
Section 4(a)(vi) of this Agreement, subject to the terms of such Section and
Section 9.1(c) of the Intercreditor 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
Aircraft, the Company shall cause WTC (or such other person that meets the
eligibility
requirements
to act as loan trustee under the 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 such Rating Agency
a true and complete copy of each Financing Agreement relating to the financing
of each 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) The
Company agrees that all Equipment Notes issued pursuant to any Indenture shall
initially be registered in the name of the Subordination Agent on behalf of the
Pass Through Trustee (or, in the case of any Additional Series Equipment Notes,
on behalf of the Additional Pass Through Trustee with respect to the
corresponding Additional Certificates).
(e) If
after giving any Closing Notice, there shall be a delay in the delivery of the
Eligible Aircraft referred to therein, or if on the Scheduled Closing Date of
the Eligible Aircraft or Owned Aircraft referred to therein the financing
thereof in the manner contemplated hereby shall not be consummated for whatever
reason, the Company shall give the parties hereto and the Depositary prompt
notice thereof. Concurrently with the giving of such notice of
postponement or subsequently, the Company shall give the parties hereto and the
Depositary a substitute Closing Notice specifying the date to which the
financing of such Eligible Aircraft (or of another Eligible Aircraft in lieu
thereof) or such Owned Aircraft shall have been re-scheduled (which shall be a
Business Day before the Cut-off Date on which the Escrow Agent shall be entitled
to withdraw one or more Deposits under the Deposit Agreement to enable the Pass
Through Trustee to fund its purchase of the Equipment Notes). Upon
receipt of any such notice of postponement, the Pass Through Trustee shall
comply with its obligations under Section 5.01 of the Trust Supplement and
thereafter the financing of such Eligible Aircraft or such Owned Aircraft, as
specified in such substitute Closing Notice, shall take place on the
re-scheduled Closing Date therefor (all on and subject to the terms and
conditions of the relevant Financing Agreements) unless further postponed as
provided herein.
(f) Anything
in this Section 1 to the contrary notwithstanding, the Company shall have the
right to accept delivery of a New Aircraft under the Aircraft Purchase Agreement
on the Delivery Date thereof by utilization of bridge financing of such New
Aircraft and promptly thereafter give the parties hereto and the Depositary a
Closing 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 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 from the Manufacturer 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
Part B of Schedule I hereto or (b) beyond December 31, 2009, 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
737-924ER aircraft and (ii) 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 Trustee to
purchase Equipment Notes with respect to any Aircraft or Substitute
Aircraft.
(i) 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 to the 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 Deposit
Agreement.
SECTION 2. Conditions
Precedent. The obligation of the Pass Through Trustee to enter
into, and to cause the
Subordination
Agent to enter into, any Participation Agreement as directed pursuant to a
Closing 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 the Pass Through Trustee and the
Liquidity Provider stating (i) that such Participation Agreement and the other
Financing Agreements to be entered into pursuant to such Participation Agreement
do not vary the Required Terms and (ii) that 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 or
the Liquidity Provider, and such certification shall be true and correct;
and
(c) In
the case of the Participation Agreement relating to the Aircraft with
registration number N24729, N16732, N24736, N14240 or N33132, an "8C Check"
shall have been performed on such Aircraft after May 2009 under the Company's
maintenance program, and the Company shall have delivered a certificate to the
Pass Through Trustee confirming the foregoing with respect to such
Aircraft.
Anything
herein to the contrary notwithstanding, the obligation of the 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 the 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
the Liquidity Facility), 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 the Liquidity Facility); 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, the Deposit Agreement and the 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 State of Delaware and 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) [Intentionally
Omitted];
(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 the Loan Trustee to the rights
afforded to secured parties of aircraft equipment under Section
1110;
(iv) Section
4.07 of each Indenture 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 the Pass Through Trust Agreement) to the
trustee of the Related Trust (as
defined
in the Pass Through Trust Agreement) in accordance with Section 7.01 of each of
the Trust Supplements;
(vi) the
Company shall not issue any Additional Series Equipment Notes pursuant to
any Indenture, unless it shall have obtained written confirmation from each
Rating Agency that the issuance of such Equipment Notes will not result in
(1) a reduction of the rating for the Certificates by such Rating Agency
below the then current rating for the Certificates or (2) a withdrawal or
suspension of the rating of the Certificates by such Rating
Agency. Any issuance of Additional Series Equipment Notes shall be
subject to the terms of Section 9.1(c) of the Intercreditor Agreement;
and
(vii) If
(x) the Depositary’s short-term unsecured debt rating or short-term issuer
credit rating, as the case may be, shall at any time fall below A-1+ from
Standard & Poor’s Ratings Services or P-1 from Xxxxx’x Investors Service,
Inc. (such minimum ratings, the “Depositary Threshold
Ratings”) or (y) the Company or the Depositary, in its sole
discretion, gives written notice to the other of its election that the
Depositary be replaced, the Company shall, within 30 days after such event
occurring, cause the Depositary to be replaced with a depositary bank (a “Replacement
Depositary”) on the following terms and preconditions:
(A) the
Replacement Depositary must meet the Depositary Threshold Ratings and the
Company shall have obtained written confirmation from each Rating Agency that
such replacement will not cause a reduction of the rating then in effect for the
Certificates by such Rating Agency (without regard to any downgrading of any
rating of the Depositary being replaced);
(B) the
Company shall pay all fees, expenses and other amounts then owing to the
replaced Depositary and, except as expressly provided in clause (C) below, the
Company shall pay any up-front fee of the Replacement Depositary and (without
limitation of the foregoing) all out-of-pocket expenses (including reasonable
fees and expenses of legal counsel) of the parties hereto (including without
limitation all amounts payable to the Rating Agencies) incurred in connection
with such replacement;
(C) solely in the
case of the Depositary making an election in its discretion that it be replaced
(and without limitation of clause (A) above), (x) the notice given by
the
Depositary
to the Company shall nominate a Replacement Depositary, which shall satisfy all
of terms and preconditions of this Section 4(a)(vii) (and the Company shall have
the right to utilize such nominee as the Replacement Depositary or to select
another Replacement Depositary), (y) the fees, expenses, indemnities and
other amounts payable to the Replacement Depositary upon its execution of the
Replacement Deposit Agreement or thereafter shall not to any extent exceed those
which would have been payable to the Depositary had such replacement not
occurred (it being specifically understood and agreed that any up-front fee of
the Replacement Depositary shall be paid by the replaced Depositary, provided
that, if the Company selects a Replacement Depositary other than the
nominee of the replaced Depositary and the upfront fee of such selection exceeds
that of such nominee, the Company shall pay such excess), and (without
limitation of the foregoing) the Depositary shall pay all out-of-pocket expenses
(including reasonable fees and expenses of legal counsel) of the parties hereto
(including without limitation all amounts payable to the Rating Agencies)
incurred in connection with such replacement, and (z) the Replacement Depositary
shall be willing to enter into a Replacement Deposit Agreement for the
Certificates with the Escrow Agent having the same terms and conditions
(including without limitation as to the interest to be paid on the Deposits) as
the Deposit Agreement; and
(D) the
Company or, in the case of the Depositary making an election that it be replaced
(unless the Company shall have selected such Replacement Depositary), the
Depositary, shall cause the Replacement Depositary to enter into a Replacement
Deposit Agreement for the Certificates with the Escrow Agent (and, upon request
of the Company the Escrow Agent agrees to enter into any such Replacement
Deposit Agreement) and shall cause the Replacement Depositary to deliver to the
Company and each Rating Agency legal opinions and other closing documentation
substantially similar in scope and substance as those that were delivered by the
Depositary being replaced in connection with the execution and delivery of the
Deposit Agreement being replaced.
Upon
satisfaction of the foregoing conditions, the Company shall instruct the Pass
Through Trustee, and the Pass Through Trustee agrees, to execute and deliver to
the Escrow Agent a duly completed Withdrawal Certificate (as defined in the
Escrow and Paying Agent Agreement) together with a Notice of Replacement
Withdrawal (as defined in the Escrow and Paying Agent Agreement).
Each of
the parties hereto agrees, at the Company’s request, to enter into any
amendments to this Agreement, the Escrow and Paying Agent Agreement and any
other Operative Agreements as may be necessary or desirable to give effect to
the replacement of the Depositary with the Replacement Depositary and the
replacement of the Deposit Agreement with the Replacement Deposit
Agreement.
Upon the
execution and delivery of the Replacement Deposit Agreement, the Replacement
Depositary shall be deemed to be the Depositary with all of the rights and
obligations of the Depositary hereunder and under the other Operative Agreements
and the Replacement Deposit Agreement shall be deemed to be the Deposit
Agreement hereunder and under the other Operative Agreements, except that the
obligations of the replaced Depositary under the Deposit Agreement resulting
from the delivery of any Withdrawal Notice delivered thereunder shall remain in
full force and effect notwithstanding the execution and delivery of the
Replacement Deposit Agreement.
(viii) Promptly
after the occurrence of a Triggering Event or an Indenture Default resulting
from the failure of the Company to make payments on any Equipment Note and on
every Regular Distribution Date while the Triggering Event or such Indenture
Default shall be continuing, the Company will, at the Subordination Agent’s
request from time to time but in any event no more frequently than once every
three months, provide to the Subordination Agent a statement setting forth the
following information with respect to each Aircraft then subject to the lien of
an Indenture: (A) whether the Aircraft are currently in service
or parked in storage, (B) the maintenance status of the Aircraft and
(C) the location of the Engines (as defined in the respective Indentures to
which such Aircraft are subject). As used in this sentence, the terms
“Triggering Event”, “Indenture Default”, “Regular Distribution Date” shall have
the respective meanings set forth in the Intercreditor Agreement as originally
executed.
(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 9.01 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 or to such other
address or facsimile number as such party may hereafter specify by notice to the
other parties.
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 the
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 Agreement and the
denominator of which shall be the sum of (x) the then outstanding aggregate
principal amount of the Equipment Notes issued under all of the Indentures and
(y) the then outstanding aggregate amount of the Deposits under the Deposit
Agreement.
(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 the 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 the Liquidity Facility minus Investment
Earnings while such Non-Extension Advance shall be outstanding, (C) the amount
equal to interest on any Special Termination Advance (other than any Applied
Special Termination Advance) payable under Section 3.07 of the Liquidity
Facility minus Investment Earnings from such Special Termination Advance while
such Special Termination Advance shall be outstanding, and (D) any other amounts
owed to the Liquidity Provider by the Subordination Agent as borrower under the
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), (B) or (C)), (ii) all compensation and reimbursement of expenses,
disbursements and advances payable by the Company under the Pass Through Trust
Agreement, (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", "Applied Special
Termination Advance", "Downgrade Advance", "Investment Earnings", "Non-Extension
Advance" and "Special Termination Advance" shall have the meanings specified in
the 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, in whole or in
part, 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
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 the Pass Through Trust Agreement, the Escrow Agent and its successors as
Escrow Agent under the Escrow and Paying Agent Agreement, 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, each of the beneficiaries of Section 6
hereof and the Depositary as a beneficiary of Section 4(a)(vii)) with any rights
of any nature whatsoever against any of the parties hereto, and no person not a
party hereto (other than the Underwriters, each of the beneficiaries of Section
6 hereof and the Depositary as a beneficiary of Section 4(a)(vii)) shall have
any right, power or privilege in respect of, or have any benefit or interest
arising out of, this Agreement. To the extent that this Agreement
expressly confers upon, gives or grants any right, power, privilege, benefit,
interest, remedy or claim to any of the beneficiaries of Section 6 hereof
(including, but not limited to rights, powers, privileges, benefits, interests,
remedies and claims under Section 6) or to the Depositary with respect to
Section 4(a)(vii), each such party is hereby recognized as a third party
beneficiary hereunder and may enforce any such right, power, privilege, benefit,
interest, remedy or claim.
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: Treasurer
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
|
||
|
XXXXX
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as
Escrow Agent
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Address:
|
000
Xxxxx Xxxx Xxxxxx
Xxxx
Xxxx Xxxx, 00xx Xxxxx Xxxx 00000
Attention:
Corporate Trust
Department
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
AIRCRAFT
Part A -
OWNED AIRCRAFT
|
Aircraft
Type
|
Registration
Number
|
Manufacturer’s
Serial
Number
|
|
Boeing
777-224
|
N77006
|
29476
|
|
Boeing
777-224
|
N78009
|
29479
|
|
Boeing
777-224
|
N78013
|
29861
|
|
Boeing
757-224
|
N34131
|
28971
|
|
Boeing
757-224
|
N33132
|
29281
|
|
Boeing
737-824
|
N26232
|
28942
|
|
Boeing
737-824
|
N35236
|
28801
|
|
Boeing
737-824
|
N14240
|
28952
|
|
Boeing
737-724
|
N24729
|
28945
|
|
Boeing
737-724
|
N16732
|
28948
|
|
Boeing
737-724
|
N14735
|
28950
|
|
Boeing
737-724
|
N24736
|
28803
|
Part B -
ELIGIBLE AIRCRAFT AND SCHEDULED DELIVERY MONTHS
|
Aircraft
Type
|
Expected
Registration
Number
|
Expected
Manufacturer’s
Serial
Number
|
Scheduled
Delivery
Month
|
|
Boeing
737-924ER
|
N37437
|
33532
|
July
2009
|
|
Boeing
737-924ER
|
N78438
|
33533
|
July
2009
|
|
Boeing
737-924ER
|
N57439
|
33534
|
August
2009
|
|
Boeing
737-924ER
|
N45440
|
33535
|
August
2009
|
|
Boeing
737-924ER
|
N53441
|
30131
|
August
2009
|
|
Boeing
737-924ER
|
N37434
|
33528
|
September
2009
|
|
Boeing
737-924ER
|
N53442
|
33536
|
September
2009
|
SCHEDULE II to
TRUST
SUPPLEMENT
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
2009-1A-O.
SCHEDULE III to
REQUIRED
TERMS
Equipment
Notes
Obligor: Continental
Maximum
Principal Amount:
The
initial principal amount and amortization schedule of the Equipment Notes issued
with respect to an Aircraft shall be as set forth in the following table for
that Aircraft (or, in the case of a Boeing 737-924ER Aircraft, the applicable
table for that model):
Boeing
777-224ER
|
N77006
|
N78009 | N78013 | ||||||||||||||||||||||
|
Date
|
Equipment
Note Ending Balance
|
Scheduled
Payment of Principal
|
Equipment
Note Ending Balance
|
Scheduled
Payment of Principal
|
Equipment
Note Ending Balance
|
Scheduled
Payment of Principal
|
||||||||||||||||||
|
At
Issuance
|
$ | 41,734,000.00 | $ | 0.00 | $ | 41,366,000.00 | $ | 0.00 | $ | 43,478,000.00 | $ | 0.00 | ||||||||||||
|
January
8, 2010
|
40,397,992.73 | 1,336,007.27 | 40,060,498.89 | 1,305,501.11 | 42,105,869.40 | 1,372,130.60 | ||||||||||||||||||
|
July
8,
2010
|
39,062,267.99 | 1,335,724.74 | 38,755,358.26 | 1,305,140.63 | 40,734,092.15 | 1,371,777.25 | ||||||||||||||||||
|
January
8, 2011
|
37,726,845.34 | 1,335,422.65 | 37,450,068.44 | 1,305,289.82 | 39,362,158.09 | 1,371,934.06 | ||||||||||||||||||
|
July
8,
2011
|
36,391,746.20 | 1,335,099.14 | 36,144,618.86 | 1,305,449.58 | 37,990,056.12 | 1,372,101.97 | ||||||||||||||||||
|
January
8, 2012
|
35,056,994.03 | 1,334,752.17 | 34,838,997.93 | 1,305,620.93 | 36,617,774.05 | 1,372,282.07 | ||||||||||||||||||
|
July
8,
2012
|
33,722,614.66 | 1,334,379.37 | 33,533,192.90 | 1,305,805.03 | 35,245,298.48 | 1,372,475.57 | ||||||||||||||||||
|
January
8, 2013
|
32,388,636.52 | 1,333,978.14 | 32,227,189.72 | 1,306,003.18 | 33,872,614.65 | 1,372,683.83 | ||||||||||||||||||
|
July
8,
2013
|
31,055,091.01 | 1,333,545.51 | 30,920,972.89 | 1,306,216.83 | 32,499,706.25 | 1,372,908.40 | ||||||||||||||||||
|
January
8, 2014
|
29,718,160.47 | 1,336,930.54 | 29,610,686.74 | 1,310,286.15 | 31,122,520.76 | 1,377,185.49 | ||||||||||||||||||
|
July
8,
2014
|
28,108,845.80 | 1,609,314.67 | 28,292,454.81 | 1,318,231.93 | 29,736,983.82 | 1,385,536.94 | ||||||||||||||||||
|
January
8, 2015
|
26,479,128.59 | 1,629,717.21 | 26,690,098.72 | 1,602,356.09 | 28,052,816.17 | 1,684,167.65 | ||||||||||||||||||
|
July
8,
2015
|
24,848,255.47 | 1,630,873.12 | 25,084,808.93 | 1,605,289.79 | 26,365,565.04 | 1,687,251.13 | ||||||||||||||||||
|
January
8, 2016
|
23,218,708.69 | 1,629,546.78 | 23,478,864.14 | 1,605,944.79 | 24,677,625.45 | 1,687,939.59 | ||||||||||||||||||
|
July
8,
2016
|
0.00 | 23,218,708.69 | 0.00 | 23,478,864.14 | 0.00 | 24,677,625.45 | ||||||||||||||||||
Boeing
757-224
| N34131 | N33132 | |||||||||||||||
|
Date
|
Equipment
Note Ending Balance
|
Scheduled
Payment of Principal
|
Equipment
Note Ending Balance
|
Scheduled
Payment of Principal
|
||||||||||||
|
At
Issuance
|
$ | 13,992,000.00 | $ | 0.00 | $ | 13,262,000.00 | $ | 0.00 | ||||||||
|
January
8,
2010
|
13,537,293.27 | 454,706.73 | 12,831,339.04 | 430,660.96 | ||||||||||||
|
July
8,
2010
|
13,082,829.54 | 454,463.73 | 12,400,575.06 | 430,763.98 | ||||||||||||
|
January
8,
2011
|
12,628,625.62 | 454,203.92 | 11,970,057.35 | 430,517.71 | ||||||||||||
|
July
8,
2011
|
12,174,699.93 | 453,925.69 | 11,539,803.37 | 430,253.98 | ||||||||||||
|
January
8,
2012
|
11,721,072.68 | 453,627.25 | 11,109,832.25 | 429,971.12 | ||||||||||||
|
July
8,
2012
|
11,267,766.05 | 453,306.63 | 10,680,165.05 | 429,667.20 | ||||||||||||
|
January
8,
2013
|
10,814,804.51 | 452,961.54 | 10,250,824.93 | 429,340.12 | ||||||||||||
|
July
8,
2013
|
10,362,215.06 | 452,589.45 | 9,821,837.49 | 428,987.44 | ||||||||||||
|
January
8,
2014
|
9,816,138.04 | 546,077.02 | 9,304,237.76 | 517,599.73 | ||||||||||||
|
July
8,
2014
|
9,271,347.80 | 544,790.24 | 8,787,857.70 | 516,380.06 | ||||||||||||
|
January
8,
2015
|
8,720,374.70 | 550,973.10 | 8,265,617.21 | 522,240.49 | ||||||||||||
|
July
8,
2015
|
8,169,645.93 | 550,728.77 | 7,743,608.32 | 522,008.89 | ||||||||||||
|
January
8,
2016
|
7,620,057.91 | 549,588.02 | 7,222,680.68 | 520,927.64 | ||||||||||||
|
July
8,
2016
|
0.00 | 7,620,057.91 | 0.00 | 7,222,680.68 | ||||||||||||
Boeing
737-924ER
|
N37437
/ N78438 / N57439
N45440
/ N53441/ N37434 / N53442
|
||||||||
|
Date
|
Equipment
Note Ending Balance
|
Scheduled
Payment of Principal
|
||||||
|
At
Issuance
|
$ | 28,258,000.00 | $ | 0.00 | ||||
|
January
8,
2010
|
28,258,000.00 | 0.00 | ||||||
|
July
8,
2010
|
28,258,000.00 | 0.00 | ||||||
|
January
8,
2011
|
28,258,000.00 | 0.00 | ||||||
|
July
8,
2011
|
27,704,698.56 | 553,301.44 | ||||||
|
January
8,
2012
|
27,150,947.11 | 553,751.45 | ||||||
|
July
8,
2012
|
26,597,195.67 | 553,751.44 | ||||||
|
January
8,
2013
|
26,043,444.22 | 553,751.45 | ||||||
|
July
8,
2013
|
25,489,692.78 | 553,751.44 | ||||||
|
January
8,
2014
|
24,935,941.33 | 553,751.45 | ||||||
|
July
8,
2014
|
24,382,189.89 | 553,751.44 | ||||||
|
January
8,
2015
|
23,828,438.44 | 553,751.45 | ||||||
|
July
8,
2015
|
23,274,687.00 | 553,751.44 | ||||||
|
January
8,
2016
|
22,720,935.56 | 553,751.44 | ||||||
|
July
8,
2016
|
0.00 | 22,720,935.56 | ||||||
Boeing
737-824
| N26232 | N35236 | N14240 | ||||||||||||||||||||||
|
Date
|
Equipment
Note Ending Balance
|
Scheduled
Payment of Principal
|
Equipment
Note Ending Balance
|
Scheduled
Payment of Principal
|
Equipment
Note Ending Balance
|
Scheduled
Payment of Principal
|
||||||||||||||||||
|
At
Issuance
|
$ | 14,834,000.00 | $ | 0.00 | $ | 15,510,000.00 | $ | 0.00 | $ | 15,510,000.00 | $ | 0.00 | ||||||||||||
|
January
8,
2010
|
14,365,531.91 | 468,468.09 | 15,020,689.65 | 489,310.35 | 15,027,590.08 | 482,409.92 | ||||||||||||||||||
|
July
8,
2010
|
13,897,513.79 | 468,018.12 | 14,531,326.99 | 489,362.66 | 14,544,977.13 | 482,612.95 | ||||||||||||||||||
|
January
8,
2011
|
13,429,442.17 | 468,071.62 | 14,041,908.39 | 489,418.60 | 14,062,147.09 | 482,830.04 | ||||||||||||||||||
|
July
8,
2011
|
12,961,313.26 | 468,128.91 | 13,552,429.89 | 489,478.50 | 13,579,084.58 | 483,062.51 | ||||||||||||||||||
|
January
8,
2012
|
12,493,122.91 | 468,190.35 | 13,062,887.14 | 489,542.75 | 13,095,772.73 | 483,311.85 | ||||||||||||||||||
|
July
8,
2012
|
12,024,866.54 | 468,256.37 | 12,573,275.36 | 489,611.78 | 12,612,192.98 | 483,579.75 | ||||||||||||||||||
|
January
8,
2013
|
11,556,539.11 | 468,327.43 | 12,083,589.29 | 489,686.07 | 12,128,324.91 | 483,868.07 | ||||||||||||||||||
|
July
8,
2013
|
11,088,135.08 | 468,404.03 | 11,593,823.11 | 489,766.18 | 11,644,145.94 | 484,178.97 | ||||||||||||||||||
|
January
8,
2014
|
10,618,271.79 | 469,863.29 | 11,102,531.13 | 491,291.98 | 11,158,184.64 | 485,961.30 | ||||||||||||||||||
|
July
8,
2014
|
10,145,559.19 | 472,712.60 | 10,608,259.88 | 494,271.25 | 10,668,955.58 | 489,229.06 | ||||||||||||||||||
|
January
8,
2015
|
9,570,960.81 | 574,598.38 | 10,007,456.24 | 600,803.64 | 10,167,226.95 | 501,728.63 | ||||||||||||||||||
|
July
8,
2015
|
8,995,310.42 | 575,650.39 | 9,405,552.61 | 601,903.63 | 9,569,340.51 | 597,886.44 | ||||||||||||||||||
|
January
8,
2016
|
8,419,425.15 | 575,885.27 | 8,803,403.39 | 602,149.22 | 8,970,500.95 | 598,839.56 | ||||||||||||||||||
|
July
8,
2016
|
0.00 | 8,419,425.15 | 0.00 | 8,803,403.39 | 0.00 | 8,970,500.95 | ||||||||||||||||||
Boeing
737-724
|
N24729
|
N16732 | |||||||||||||||
|
Date
|
Equipment
Note Ending Balance
|
Scheduled
Payment of Principal
|
Equipment
Note Ending Balance
|
Scheduled
Payment of Principal
|
||||||||||||
|
At
Issuance
|
$ | 12,225,000.00 | $ | 0.00 | $ | 11,913,000.00 | $ | 0.00 | ||||||||
|
January
8,
2010
|
11,839,002.20 | 385,997.80 | 11,537,168.01 | 375,831.99 | ||||||||||||
|
July
8,
2010
|
11,453,296.50 | 385,705.70 | 11,161,295.84 | 375,872.17 | ||||||||||||
|
January
8,
2011
|
11,067,546.70 | 385,749.80 | 10,785,380.70 | 375,915.14 | ||||||||||||
|
July
8,
2011
|
10,681,749.70 | 385,797.00 | 10,409,419.55 | 375,961.15 | ||||||||||||
|
January
8,
2012
|
10,295,902.06 | 385,847.64 | 10,033,409.05 | 376,010.50 | ||||||||||||
|
July
8,
2012
|
9,910,000.01 | 385,902.05 | 9,657,345.54 | 376,063.51 | ||||||||||||
|
January
8,
2013
|
9,524,039.41 | 385,960.60 | 9,281,224.96 | 376,120.58 | ||||||||||||
|
July
8,
2013
|
9,138,015.66 | 386,023.75 | 8,905,042.85 | 376,182.11 | ||||||||||||
|
January
8,
2014
|
8,750,789.31 | 387,226.35 | 8,527,688.80 | 377,354.05 | ||||||||||||
|
July
8,
2014
|
8,361,214.76 | 389,574.55 | 8,148,046.42 | 379,642.38 | ||||||||||||
|
January
8,
2015
|
7,887,673.55 | 473,541.21 | 7,686,578.09 | 461,468.33 | ||||||||||||
|
July
8,
2015
|
7,413,265.35 | 474,408.20 | 7,224,264.88 | 462,313.21 | ||||||||||||
|
January
8,
2016
|
6,938,663.57 | 474,601.78 | 6,761,763.03 | 462,501.85 | ||||||||||||
|
July
8,
2016
|
0.00 | 6,938,663.57 | 0.00 | 6,761,763.03 | ||||||||||||
| N14735 | N24736 | |||||||||||||||
|
Date
|
Equipment
Note Ending Balance
|
Scheduled
Payment of Principal
|
Equipment
Note Ending Balance
|
Scheduled
Payment of Principal
|
||||||||||||
|
At
Issuance
|
$ | 12,181,000.00 | $ | 0.00 | $ | 12,392,000.00 | $ | 0.00 | ||||||||
|
January
8,
2010
|
11,796,390.31 | 384,609.69 | 12,000,572.27 | 391,427.73 | ||||||||||||
|
July
8,
2010
|
11,412,072.87 | 384,317.44 | 11,609,602.73 | 390,969.54 | ||||||||||||
|
January
8,
2011
|
11,027,711.51 | 384,361.36 | 11,218,588.51 | 391,014.22 | ||||||||||||
|
July
8,
2011
|
10,643,303.09 | 384,408.42 | 10,827,526.43 | 391,062.08 | ||||||||||||
|
January
8,
2012
|
10,258,844.22 | 384,458.87 | 10,436,413.02 | 391,113.41 | ||||||||||||
|
July
8,
2012
|
9,874,331.15 | 384,513.07 | 10,045,244.46 | 391,168.56 | ||||||||||||
|
January
8,
2013
|
9,489,759.72 | 384,571.43 | 9,654,016.55 | 391,227.91 | ||||||||||||
|
July
8,
2013
|
9,105,125.38 | 384,634.34 | 9,262,724.63 | 391,291.92 | ||||||||||||
|
January
8,
2014
|
8,719,292.77 | 385,832.61 | 8,870,213.70 | 392,510.93 | ||||||||||||
|
July
8,
2014
|
8,331,120.41 | 388,172.36 | 8,475,322.52 | 394,891.18 | ||||||||||||
|
January
8,
2015
|
7,859,283.60 | 471,836.81 | 7,995,318.76 | 480,003.76 | ||||||||||||
|
July
8,
2015
|
7,386,582.93 | 472,700.67 | 7,514,436.18 | 480,882.58 | ||||||||||||
|
January
8,
2016
|
6,913,689.38 | 472,893.55 | 7,033,357.39 | 481,078.79 | ||||||||||||
|
July
8,
2016
|
0.00 | 6,913,689.38 | 0.00 | 7,033,357.39 | ||||||||||||
Indenture
Debt Rate
(as such term is defined in clause (i) of the form of Indenture marked as
Exhibit C of the Note Purchase Agreement (the "Indenture Form") for
the Equipment Notes (computed on the basis of a 360-day year consisting of
twelve 30-day months, payable semi-annually in
arrears): 9.00%
|
Payment
Due Rate:
|
Debt
Rate plus 2% per annum
|
|
Payment
Dates:
|
January
8 and July 8
|
|
Make-Whole
Premiums:
|
As
provided in Article II of the Indenture
Form
|
|
Redemption:
|
As
provided in Article II of the Indenture
Form
|
|
All-risk
hull insurance:
|
Not
less than the unpaid principal amount of the Equipment Notes relating to
an Aircraft, 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 B to the Indenture
Form.
|
Participation
Agreement
Mortgagee,
Subordination Agent, Liquidity Provider, Pass Through Trustee, Escrow Agent and
Note Holders indemnified against Expenses and Taxes to the extent set forth in
Section 8 of the form of the Participation Agreement marked as Exhibit B to the
Note Purchase Agreement.
Prohibited
Modifications
|
1.
|
May
not modify in any material adverse respect the Granting Clause of the
Indenture so as to deprive the Note Holders or the Related Note Holders
(as defined in the Indenture) of a first priority security interest in and
mortgage lien on the Aircraft or, to the extent assigned thereunder,
Continental’s rights under the Purchase Agreement (as defined in the
Indenture) or to eliminate any of the obligations intended to be secured
thereby or otherwise modify in any material adverse respect as regards the
interests of the Note Holders, the Related Note Holder of a Related Series
A Equipment Note, the Subordination Agent, the Liquidity Provider or the
Mortgagee the provisions of Article II or III or Section 4.05(c), 5.01,
5.02, 6.02, 10.01(a), 10.01(b)(vii), 11.01, 11.04, 11.11, 11.12 or 11.13
of the Indenture or the definition of “Make-Whole Amount” in Annex A to
the Indenture.
|
|
2.
|
May
not modify in any material adverse respect as regards the interests of the
Note Holders, the Subordination Agent, the Liquidity Provider or the
Mortgagee the provisions of Section 4.1.3, 4.1.8, 4.1.9, 4.1.10, 4.1.11,
6.1.3(b), 6.3, 10, 12.8(a) or 12.9 of the Participation Agreement, of the
provisions of Section 4.1.2(x) of the Participation Agreement 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 6.4.5(a)(ii) of the
Participation Agreement as regards the rights of the Mortgagee thereunder
or otherwise modify the terms of the Participation Agreement to deprive
the Trustees, the Subordination Agent, the Liquidity Provider or the
Mortgagee of any indemnity or right of reimbursement in its favor for
Expenses or Taxes.
|
Notwithstanding
the foregoing, any form of Financing Agreement 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 Related Note Holder of a Related Series A Equipment Note, the
Subordination Agent, the Liquidity Provider, the Mortgagee or the
Certificateholders.
ANNEX A to
Note Purchase
Agreement
DEFINITIONS
"Act" means 49 U.S.C.
§§ 40101-46507.
"Additional Series Equipment
Notes" means Equipment Notes of a single series issued under an Indenture
and designated other than as "Series A" issued thereunder, if any.
"Additional Series Pass
Through Certificates" means the pass through certificates issued pursuant
to any Additional Series Pass Through Trust Agreement.
"Additional Series Pass
Through Trust" means a grantor trust created to facilitate the issuance
and sale of pass through certificates in connection with the issuance of any
Additional Series Equipment Notes.
"Additional Series Pass
Through Trust Agreement" means a Trust Supplement entered into in
connection with the creation of an Additional Series Pass Through Trust,
together with the Basic Pass Through Trust Agreement.
"Additional Series Pass
Through Trustee" means WTC, in its capacity as trustee under an
Additional Series Pass Through Trust Agreement.
"Aircraft Purchase
Agreement" means the Purchase Agreement No. 1951, dated as of 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 such Purchase Agreement).
"Bankruptcy Code"
means the United States Bankruptcy Code, 11 U.S.C. §§ 101 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 fourth recital to the Note Purchase
Agreement.
"Certificateholder"
means the Person in whose name a Certificate is registered in the
Register.
"Closing Notice" has
the meaning set forth in Section 1(b) of the Note Purchase
Agreement.
"Company" means
Continental Airlines, Inc., a Delaware corporation.
"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) December 31, 2009 and
(b) the date on which Equipment Notes issued with respect to all of the
Aircraft (including any Substitute Aircraft in lieu of the New Aircraft) have
been purchased by the Pass Through Trustee 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.
"Deposits" has the
meaning set forth in the sixth recital to the Note Purchase
Agreement.
"Deposit Agreement"
has the meaning set forth in the sixth recital to the Note Purchase
Agreement.
"Depositary Threshold
Ratings" has the meaning set forth in Section 4(a)(vii) of the Note
Purchase Agreement.
"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 Agent
Agreements" has the meaning set forth in Section 3(e)(i) of the Note
Purchase Agreement.
"Escrow and Paying Agent
Agreement" has the meaning set forth in the sixth recital to the Note
Purchase Agreement.
"FAA" means the
Federal Aviation Administration of the United States.
"Financing Agreements"
means, collectively, the Participation Agreement, the Indenture and the
Equipment Notes issued thereunder.
"Funding Date" has the
meaning set forth in Section 1(b) of the Note Purchase Agreement.
"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.
"Indenture" means the
Trust Indenture and Mortgage substantially in the form of Exhibit C to the
Note Purchase Agreement.
"Initial Deposits" has
the meaning set forth in the sixth recital to the Note Purchase
Agreement.
"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.
"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.
"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 third 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 the Deposit Agreement, has the meaning set
forth in Section 2.3 thereof.
"Operative Agreements"
means, collectively, the Pass Through Trust Agreement, the Escrow and Paying
Agent Agreement, the Deposit Agreement, the Liquidity Facility, the
Intercreditor Agreement, the Equipment Notes, the Certificates and the Financing
Agreements.
"Owned Aircraft" has
the meaning set forth in the second recital to the Note Purchase
Agreement.
"Participation
Agreement" means, the Participation Agreement substantially in the form
of Exhibit B to the Note Purchase Agreement.
"Paying Agent
Agreements" has the meaning set forth in Section 3(f)(i) of the Note
Purchase Agreement.
"Pass Through Trust"
has the meaning set forth in the fourth recital to the Note Purchase
Agreement.
"Pass Through Trust
Agreement" means the Trust Supplement referred to in the fourth recital
to the Note Purchase Agreement, together with the Basic Pass Through Trust
Agreement, dated as of the Issuance Date, by and between the Company 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.
"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 Standard
& Poor's Financial Services LLC business.
"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 or (2) a Substitute Aircraft, a written confirmation
from each of the Rating Agencies that (1) the use of such Financing Agreement
with such modifications or (2) the substituting of such Substitute Aircraft for
an Eligible Aircraft, whichever of the foregoing shall in a particular case
require Rating Agency Confirmation, would not result in (i) a reduction of the
rating for the Certificates by such Rating Agency below the then current rating
for the Certificates or (ii) a withdrawal or suspension of the rating of
the Certificates by such Rating Agency.
"Register" means the
register maintained pursuant to Sections 3.04 and 7.12 of the Basic Pass Through
Trust Agreement with respect to the Pass Through Trust.
"Replacement Deposit
Agreement" means a deposit agreement substantially in the form of the
replaced Deposit Agreement as shall permit the Rating Agencies to confirm in
writing their respective ratings then in effect for the Certificates (before the
downgrading of such ratings, if any, as a result of the downgrading of the
Depositary, if applicable).
"Replacement
Depositary" has the meaning set forth in Section 4(a)(vii) of the Note
Purchase Agreement.
"Required Terms" means
the terms set forth on Schedule III to the Note Purchase Agreement.
"Scheduled Closing
Date" has the meaning set forth in Section 1(b) of the Note Purchase
Agreement.
"Series A Equipment
Notes" means the "Series A Equipment Notes" as defined in each Indenture
entered into pursuant to the Note Purchase Agreement.
"Section 1110" means
11 U.S.C. § 1110 of the Bankruptcy Code or any successor or analogous Section of
the federal bankruptcy Law in effect from time to time.
"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.
"Triggering Event" has
the meaning assigned to such term in the Intercreditor 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 fifth recital to the Note Purchase
Agreement.
"Underwriting
Agreement" has the meaning set forth in the fifth recital to the Note
Purchase Agreement.
"WTC" has the meaning
set forth in the first paragraph of the Note Purchase
Agreement.
EXHIBIT A to
Note Purchase
Agreement
FORM OF
CLOSING NOTICE
CLOSING
NOTICE
Dated as
of [_________], 2009
To each
of the addressees listed
in Schedule A hereto
|
|
Re:
|
Closing
Notice in accordance with Note Purchase Agreement referred to
below
|
Ladies
and Gentlemen:
Reference
is made to the Note Purchase Agreement, dated as of July 1, 2009, among
Continental Airlines, Inc. (the “Company”), Wilmington
Trust Company, as Pass Through Trustee under the Pass Through Trust Agreement
(as defined therein) (the “Pass Through
Trustee”), Wilmington Trust Company, as Subordination Agent (the “Subordination
Agent”), Xxxxx Fargo Bank Northwest, 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 Section 1(b) of the Note Purchase Agreement, the undersigned hereby notifies
you, in respect of the Boeing Model [_______] aircraft with manufacturer’s
serial number [______] (the “Aircraft”), of the
following:
|
(1)
|
The
Scheduled Closing Date of the Aircraft is [_________],
2009;
|
|
(2)
|
The
Funding Date for the Aircraft shall be [__________], 2009;
and
|
|
(3)
|
The
aggregate amount of the Equipment Notes to be issued, and purchased by the
Pass Through Trustee, on the Funding Date, in connection with the
financing of such Aircraft is
$[__________].
|
The
Company hereby instructs the Pass Through Trustee to (i) execute a Withdrawal
Certificate in the form of Annex A hereto dated as of [______], 2009 and attach
thereto a Notice of Purchase Withdrawal dated such date completed as set forth
on Exhibit A hereto and (ii) deliver such Withdrawal Certificate and Notice of
Purchase Withdrawal to the Escrow Agent.
The
Company hereby instructs the Pass Through Trustee to (i) purchase Equipment
Notes in an amount set forth in clause (3) above with a portion of the proceeds
of the withdrawals of Deposits referred to in the applicable Notice of Purchase
Withdrawal referred to above 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 the Pass Through Trustee to (a) enter into the
Participation Agreement [____] dated as of [______], 2009 among the Company, as
Owner, and Wilmington Trust Company, as Mortgagee and Loan Participant, (b)
perform its obligations thereunder and (c) deliver such certificates, documents
and legal opinions relating to the Pass Through Trustee as required
thereby.
|
Yours
faithfully,
|
||
|
Continental
Airlines, Inc.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
SCHEDULE
A
Wilmington
Trust Company, as
Pass
Through Trustee, Subordination
Agent
and Paying Agent
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Attention: Corporate
Trust Administration
Facsimile: (000)
000-0000
Xxxxx
Fargo Bank Northwest, National Association,
as
Escrow Agent
MAC:
U1228-120
000 Xxxxx
Xxxx Xxxxxx, 00xx Xxxxx
Xxxx Xxxx
Xxxx, Xxxx 00000
Attention: Corporate
Trust Department
Facsimile: (000)
000-0000
The Bank
of New York Mellon,
as
Depositary
000
Xxxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Corporate Finance, Xxxx Xxxxxxx, Vice President
Reference:
Continental Airlines 2009-1
Facsimile: (000)
000-0000
Standard
& Poor’s Ratings Services
00 Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000-0000
Attention: Xxxxxx
X. Xxxxxxxx, CFA
Facsimile: (000)
000-0000
Xxxxx’x
Investors Service, Inc.
7 World
Trade Center at 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxxx
Xxxxxxxx
Facsimile: 000-000-0000
Annex
A
WITHDRAWAL
CERTIFICATE
Xxxxx
Fargo Bank Northwest, National Association,
as Escrow
Agent
Ladies
and Gentlemen:
Reference
is made to the Escrow and Paying Agent Agreement, dated as of July 1, 2009 (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 Purchase
Withdrawal and immediately transmit by facsimile to the Depositary, at (000)
000-0000 (Attention: Corporate Finance, Xxxx Xxxxxxx, Vice
President).
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 but solely as Pass
Through
Trustee
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Dated: As
of [__________ __], 2009
Exhibit
A
NOTICE OF
PURCHASE WITHDRAWAL
The Bank
of New York Mellon,
as
Depositary
000
Xxxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Corporate Finance, Xxxx Xxxxxxx, Vice President
Reference:
Continental Airlines 2009-1
Telecopier: (000)
000-0000
Ladies
and Gentlemen:
Reference
is made to the Deposit Agreement dated as of July 1, 2009 (the “Deposit Agreement”)
between Xxxxx Fargo Bank Northwest, National Association, as Escrow Agent, and
The Bank of New York Mellon, 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 entire amount of the
Deposit to [___________________], Account No. [____], Reference: [_________] on
[________ __], 2009, upon the telephonic request of a representative of the Pass
Through Trustee.
|
XXXXX
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as
Escrow Agent
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
Dated: As
of [__________ __], 2009
