TRUST SUPPLEMENT No. 2000-2C-S
Dated November 28, 2000
between
WILMINGTON TRUST COMPANY
as Trustee,
and
CONTINENTAL AIRLINES, INC.
to
PASS THROUGH TRUST AGREEMENT
Dated as of September 25, 1997
$138,764,000
Continental Airlines Pass Through Trust 2000-2C-S
8.312% Continental Airlines
Pass Through Certificates,
Series 2000-2C-S
This Trust Supplement No. 2000-2C-S, dated as of November 28,
2000 (herein called the "TRUST SUPPLEMENT"), between Continental Airlines,
Inc., a Delaware corporation (the "COMPANY"), and Wilmington Trust Company
(the "TRUSTEE"), to the Pass Through Trust Agreement, dated as of
September 25, 1997, between the Company and the Trustee (the "BASIC
Agreement").
W I T N E S S E T H:
WHEREAS, the Basic Agreement, unlimited as to the aggregate
principal amount of Certificates (unless otherwise specified herein,
capitalized terms used herein without definition having the respective
meanings specified in the Basic Agreement) which may be issued thereunder,
has heretofore been executed and delivered;
WHEREAS, the Company has obtained commitments from Boeing for the
delivery of certain Aircraft;
WHEREAS, as of the Transfer Date (as defined below), the Company
will have financed the acquisition of all or a portion of such Aircraft
either (i) through separate leveraged lease transactions, in which case the
Company leases such Aircraft (collectively, the "LEASED AIRCRAFT"), or (ii)
through separate secured loan transactions, in which case the Company owns
such Aircraft (collectively, the "OWNED AIRCRAFT");
WHEREAS, as of the Transfer Date, in the case of each Leased
Aircraft, each Owner Trustee, acting on behalf of the corresponding Owner
Participant, will have issued pursuant to an Indenture, on a non-recourse
basis, Equipment Notes in order to finance a portion of its purchase price of
such Leased Aircraft;
WHEREAS, as of the Transfer Date, in the case of each Owned
Aircraft, the Company will have issued pursuant to an Indenture, on a
recourse basis, Equipment Notes to finance a portion of the purchase price of
such Owned Aircraft;
WHEREAS, as of the Transfer Date, the Related Trustee will
assign, transfer and deliver all of such trustee's right, title and interest
to the trust property held by the Related Trustee to the Trustee pursuant to
the Assignment and Assumption Agreement (as defined below);
WHEREAS, the Trustee, effective only, but automatically, upon
execution and delivery of the Assignment and Assumption Agreement, will be
deemed to have declared the creation of the Continental Airlines Pass Through
Trust 2000-2C-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 (as defined below) deemed
issued by the Applicable Trust will evidence fractional undivided interests
in the Applicable Trust and will convey no rights, benefits or interests in
respect of any property other than the Trust Property except for those
Applicable Certificates to which an Escrow Receipt (as defined below) has
been affixed;
WHEREAS, upon the execution and delivery of the Assignment and
Assumption Agreement, all of the conditions and requirements necessary to
make this Trust Supplement, when duly executed and delivered, a valid,
binding and legal instrument in accordance with its terms and for the
purposes herein expressed, have been done, performed and fulfilled, and the
execution and delivery of this Trust Supplement in the form and with the
terms hereof have been in all respects duly authorized;
WHEREAS, this Trust Supplement is subject to the provisions of
the Trust Indenture Act of 1939, as amended, and shall, to the extent
applicable, be governed by such provisions;
NOW THEREFORE, in consideration of the premises herein, it is
agreed between the Company and the Trustee as follows:
ARTICLE I
THE CERTIFICATES
Section 1.01. THE CERTIFICATES. The Applicable Certificates
shall be known as "8.312% Continental Airlines Pass Through Certificates,
Series 2000-2C-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 April 2 and October 2 of each year,
commencing on April 2, 2001, until payment of all of the Scheduled
Payments to be made under the Equipment Notes has been made.
(c) The Special Distribution Dates with respect to the
Applicable Certificates means any Business Day on which a Special
Payment is to be distributed pursuant to the Agreement.
(d) At the Escrow Agent's request under the Escrow Agreement,
the Trustee shall affix the corresponding Escrow Receipt to each
Applicable Certificate. In any event, any transfer or exchange of any
Applicable Certificate shall also effect a transfer or exchange of the
related Escrow Receipt. Prior to the Final Withdrawal Date, no
transfer or exchange of any Applicable Certificate shall be permitted
unless the corresponding Escrow Receipt is attached thereto and also is
so transferred or exchanged. By acceptance of any Applicable
Certificate to which an Escrow Receipt is attached, each Holder of such
an Applicable Certificate acknowledges and accepts the restrictions on
transfer of the Escrow Receipt set forth herein and in the Escrow
Agreement.
(e) (i) The Applicable Certificates shall be in the form
attached as Exhibit A to the Related Pass Through Trust Supplement,
with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by the Related Pass Through
Trust Agreement or the Agreement, as the case may be, or as the Trustee
may deem appropriate, to reflect the fact that the Applicable
Certificates are being issued under the Agreement as opposed to under
the Related Pass Through Trust Agreement. Any Person acquiring or
accepting an Applicable Certificate or an interest therein will, by
such acquisition or acceptance, be deemed to represent and warrant to
and for the benefit of each Owner Participant and 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 Agreement, the Deposit Agreement and the Escrow Agreement.
(h) The Applicable Certificates are entitled to the benefits of
the Liquidity Facility.
(i) The Responsible Party is the Company.
(j) The date referred to in clause (i) of the definition of the
term "PTC Event of Default" in the Basic Agreement is the Final
Maturity Date.
(k) The "particular sections of the Note Purchase Agreement",
for purposes of clause (3) of Section 7.07 of the Basic Agreement, are
Section 8.1 (with respect to Owned Aircraft) and Section 9.1 (with
respect to Leased Aircraft) of each Participation Agreement.
(l) The Equipment Notes to be acquired and held in the
Applicable Trust, and the related Aircraft and Note Documents, are
described in the NPA.
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 New Aircraft or Substitute Aircraft
in respect of which a Participation Agreement is entered into in
accordance with the NPA (or any substitute aircraft, including engines
therefor, owned by or leased to the Company and securing one or more
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.
CLASS D CERTIFICATEHOLDER: Has the meaning specified in Section
4.01(b) of this Trust Supplement.
COMPANY: Has the meaning specified in the first paragraph of
this Trust Supplement.
CONTROLLING PARTY: Has the meaning specified in the
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
November 28, 2000 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.
ESCROW AGENT: Means, initially, First Security Bank, 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 November 28, 2000 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 October 2, 2012.
FINAL WITHDRAWAL: Has the meaning specified in the Escrow
Agreement.
FINAL WITHDRAWAL DATE: Has the meaning specified in the Escrow
Agreement.
INDENTURE: Means each of the separate trust indentures and
mortgages relating to the Aircraft, each as specified or described in a
Delivery Notice delivered pursuant to the NPA or the related
Participation Agreement, in each case as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
INTERCREDITOR AGREEMENT: Means the Intercreditor Agreement dated
as of November 28, 2000 among the Related Trustee (and after the
Transfer Date, the Trustee), the Related Other Trustees (and after the
Transfer Date, the Other Trustees), the Liquidity Provider, the
liquidity providers relating to the Certificates issued under each of
the Related Other Pass Through Trust Agreements, and Wilmington Trust
Company, as Subordination Agent and as trustee thereunder, as amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
INVESTORS: Means the Underwriters together with all subsequent
beneficial owners of the Applicable Certificates.
LEASE: Means, with respect to each Leased Aircraft, the lease
between an Owner Trustee, as the lessor, and the Company, as the
lessee, referred to in the related Indenture, as such lease may be
amended, supplemented or otherwise modified in accordance with its
terms.
LEASED AIRCRAFT: Has the meaning specified in the third recital
to this Trust Supplement.
LEASED AIRCRAFT INDENTURE: Has the meaning specified in the
Intercreditor Agreement.
LIQUIDITY FACILITY: Means, initially, the Revolving Credit
Agreement dated as of November 28, 2000 relating to the Applicable
Certificates, between the Liquidity Provider and Wilmington Trust
Company, as Subordination Agent, as agent and trustee for the
Applicable Trust, and, from and after the replacement of such agreement
pursuant to the Intercreditor Agreement, the replacement liquidity
facility therefor, in each case as amended, supplemented or otherwise
modified from time to time in accordance with their respective terms.
LIQUIDITY PROVIDER: Means, initially, Landesbank
Hessen-Thuringen Girozentrale, a German public law institution duly
established under the Treaty on the Formation of a Joint Savings Banks
Organization Hessen-Thuringen, and any replacements or successors
therefor appointed in accordance with the Intercreditor Agreement.
NEW AIRCRAFT: Has the meaning specified in the NPA.
NOTE DOCUMENTS: Means the Equipment Notes with respect to the
Applicable Certificates and, with respect to any such Equipment Note,
(i) the Indenture and the Participation Agreement relating to such
Equipment Note, and (ii) in the case of any Equipment Note related to a
Leased Aircraft, the Lease relating to such Leased Aircraft.
NPA: Means the Note Purchase Agreement dated as of November 28,
2000 among the Related Trustee (and after the Transfer Date, the
Trustee), the Related Other Trustees (and after the Transfer Date, the
Other Trustees), the Company, the Escrow Agent, the Escrow Paying Agent
and the Subordination Agent, as the same may be amended, supplemented
or otherwise modified from time to time, in accordance with its terms.
OTHER AGREEMENTS: Means (i) the Basic Agreement as supplemented
by Trust Supplement No. 2000-2A-1-S dated the date hereof relating to
Continental Airlines Pass Through Trust 2000-2A-1-S, (ii) the Basic
Agreement as supplemented by Trust Supplement No. 2000-2A-2-S dated the
date hereof relating to Continental Airlines Pass Through Trust
2000-2A-2-S and (iii) the Basic Agreement as supplemented by Trust
Supplement No. 2000-2B-S dated the date hereof relating to Continental
Airlines Pass Through Trust 2000-2B-S.
OTHER TRUSTEES: Means the trustees under the Other Agreements,
and any successor or other trustee appointed as provided therein.
OTHER TRUSTS: Means the Continental Airlines Pass Through Trust
2000-2A-1-S, the Continental Airlines Pass Through Trust 2000-2A-2-S
and the Continental Airlines Pass Through Trust 2000-2B-S, created by
the Other Agreements.
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 this 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 third recital
to this Trust Supplement.
OWNED AIRCRAFT INDENTURE: Has the meaning specified in the
Intercreditor Agreement.
OWNER PARTICIPANT: With respect to any Equipment Note relating
to a Leased Aircraft, means the "Owner Participant" as referred to in
the Indenture pursuant to which such Equipment Note is issued and any
permitted successor or assign of such Owner Participant; and OWNER
PARTICIPANTS at any time of determination means all of the Owner
Participants thus referred to in the Indentures.
OWNER TRUSTEE: With respect to any Equipment Note relating to a
Leased Aircraft, means the "Owner Trustee", as referred to in the
Indenture pursuant to which such Equipment Note is issued, not in its
individual capacity but solely as trustee; and OWNER TRUSTEES means all
of the Owner Trustees party to any of the Indentures.
OWNER TRUSTEE'S PURCHASE AGREEMENT: Means, with respect to any
Leased Aircraft, the agreement between the Company and the relevant
Owner Trustee pursuant to which, INTER ALIA, the Company assigns to the
Owner Trustee certain rights of the Company under the aircraft purchase
agreement with respect to such Leased Aircraft.
PARTICIPATION AGREEMENT: Means each Participation Agreement
entered into by the Related Trustee pursuant to the NPA, as the same
may be amended, supplemented or otherwise modified in accordance with
its terms.
POOL BALANCE: Means, as of any date, (i) the original aggregate
face amount of the "Applicable Certificates" as defined in the Related
Pass Through Trust Agreement, less (ii) the aggregate amount of all
payments made in respect of such Certificates, the Applicable
Certificates (as defined in the Related Pass Through Trust Agreement)
or the Deposits, other than payments made in respect of interest or
premium thereon or reimbursement of any costs or expenses incurred in
connection therewith. The Pool Balance as of any Distribution Date
shall be computed after giving effect to any special distribution with
respect to unused Deposits, payment of principal of the Equipment Notes
or payment with respect to other Trust Property and the distribution
thereof to be made on that date.
POOL FACTOR: Means, as of any Distribution Date, the quotient
(rounded to the seventh decimal place) computed by dividing (i) the
Pool Balance by (ii) the original aggregate face amount of the
"Applicable Certificates" as defined in the Related Pass Through Trust
Agreement. The Pool Factor as of any Distribution Date shall be
computed after giving effect to any special distribution with respect
to unused Deposits, payment of principal of the Equipment Notes or
payments with respect to other Trust Property and the distribution
thereof to be made on that date.
PROSPECTUS SUPPLEMENT: Means the Prospectus Supplement dated
November 14, 2000 relating to the offering of the Applicable
Certificates and the Certificates issued under the Other Agreements.
RELATED OTHER PASS THROUGH TRUST AGREEMENTS: Means the "Other
Agreements" as defined in the Related Pass Through Trust Agreement.
RELATED OTHER TRUSTEES: Means the "Other Trustees" as defined in
the Related Pass Through Trust Agreement.
RELATED OTHER TRUSTS: Means the "Other Trusts" as defined in the
Related Pass Through Trust Agreement.
RELATED PASS THROUGH TRUST AGREEMENT: Means the Basic Agreement
as supplemented by the Trust Supplement No. 2000-2C-O dated the date
hereof (the "RELATED PASS THROUGH TRUST SUPPLEMENT"), relating to the
Continental Airlines Pass Through Trust 2000-2C-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
2000-2C-O, formed under the Related Pass Through Trust Agreement.
RELATED TRUSTEE: Means the trustee under the Related Pass
Through Trust Agreement.
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: Has the meaning assigned to such term in the
Intercreditor Agreement.
TRUST PROPERTY: Means (i) subject to the Intercreditor
Agreement, the Equipment Notes held as the property of the Applicable
Trust, all monies at any time paid thereon and all monies due and to
become due thereunder, (ii) funds from time to time deposited in the
Certificate Account and the Special Payments Account and, subject to
the Intercreditor Agreement, any proceeds from the sale by the Trustee
pursuant to Article VI of the Basic Agreement of any Equipment Note and
(iii) all rights of the Applicable Trust and the Trustee, on behalf of
the Applicable Trust, under the Intercreditor Agreement, the Escrow
Agreement, the NPA and the Liquidity Facility, including, without
limitation, all rights to receive certain payments thereunder, and all
monies paid to the Trustee on behalf of the Applicable Trust pursuant
to the Intercreditor Agreement or the Liquidity Facility, PROVIDED that
rights with respect to the Deposits or under the Escrow Agreement will
not constitute Trust Property.
TRUST SUPPLEMENT: Has the meaning specified in the first
paragraph of this trust supplement.
UNDERWRITERS: Means, collectively, Credit Suisse First Boston
Corporation, Xxxxxx Xxxxxxx & Co. Incorporated, Chase Securities Inc.,
Xxxxxxx, Xxxxx & Co. and Xxxxxxx Xxxxx Barney Inc.
UNDERWRITING AGREEMENT: Means the Underwriting Agreement dated
November 14, 2000 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) If the aggregate principal payments scheduled for a Regular
Distribution Date prior to the Delivery Period Termination Date differ from
the amount thereof set forth for the Applicable Certificates on page S-36 of
the Prospectus Supplement, by no later than the 15th day prior to such
Regular Distribution Date, the Trustee (if the Related Trustee has not
already done so) shall mail written notice of the actual amount of such
scheduled payments to the Applicable Certificateholders of record as of a
date within 15 Business Days prior to the date of mailing.
(d) Promptly following (i) the Delivery Period Termination
Date, if there has been any change in the information set forth in clauses
(x), (y) and (z) below from that set forth in page S-36 of the Prospectus
Supplement, and (ii) the date of any early redemption or purchase of, or any
default in the payment of principal or interest in respect of, any of the
Equipment Notes held in the Applicable Trust, or any Final Withdrawal, the
Trustee (if the Related Trustee has not already done so) shall furnish to
Applicable Certificateholders of record on such date a statement setting
forth (x) the expected Pool Balances for each subsequent Regular Distribution
Date following the Delivery Period Termination Date, (y) the related Pool
Factors for such Regular Distribution Dates and (z) the expected principal
distribution schedule of the Equipment Notes, in the aggregate, held as Trust
Property at the date of such notice. With respect to the Applicable
Certificates registered in the name of a Clearing Agency, on the Transfer
Date, the Trustee (if the Related Trustee has not already done so) will
request from such Clearing Agency a securities position listing setting forth
the names of all Clearing Agency Participants reflected on such Clearing
Agency's books as holding interests in the "Applicable Certificates" (as
defined in the Related Pass Through Trust Agreement) on the Delivery Period
Termination Date. The Trustee (if the Related Trustee has not already done
so) will mail to each such Clearing Agency Participant the statement
described above and will make available additional copies as requested by
such Clearing Agency Participant for forwarding to holders of interests in
the Applicable Certificates.
(e) 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, each Applicable Certificateholder shall have the right (which shall
not expire upon any purchase of the Class A-2 Certificates pursuant to the
Class A-1 Trust Agreement, any purchase of the Class A-1 Certificates
pursuant to the Class A-2 Trust Agreement or any purchase of the Class A-1
Certificates and the Class A-2 Certificates pursuant to the Class B Trust
Agreement) to purchase, for the purchase prices set forth in the Class A-1
Trust Agreement, the Class A-2 Trust Agreement and the Class B Trust
Agreement, respectively, all, but not less than all, of the Class A-1
Certificates, the Class A-2 Certificates and the Class B Certificates upon
ten days' written notice to the Class A-1 Trustee, the Class A-2 Trustee, the
Class B Trustee and each other Applicable Certificateholder, PROVIDED that
(i) 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 Class A-1 Certificates, the Class A-2 Certificates and the Class
B Certificates pro rata based on the Fractional Undivided Interest in the
Applicable Trust held by each such Applicable Certificateholder and (ii) 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 Class A-1 Certificates, the Class A-2 Certificates and the
Class B Certificates pursuant to this Section 4.01(a).
(b) By acceptance of its Applicable Certificate, each
Applicable Certificateholder agrees that at any time after the occurrence and
during the continuation of a Triggering Event, each holder of a Class D
Certificate (a "CLASS D CERTIFICATEHOLDER") shall have the right (which shall
not expire upon any purchase of the Class A-2 Certificates pursuant to the
Class A-1 Trust Agreement, any purchase of the Class A-1 Certificates
pursuant to the Class A-2 Trust Agreement, any purchase of the Class A-1
Certificates and the Class A-2 Certificates pursuant to the Class B Trust
Agreement or any purchase of Certificates pursuant to clause (a) above) to
purchase all, but not less than all, of the Class A-1 Certificates, the Class
A-2 Certificates, the Class B Certificates and the Applicable Certificates
upon ten days' written notice to the Class A-1 Trustee, the Class A-2
Trustee, the Class B Trustee, the Trustee and each other Class D
Certificateholder, PROVIDED that (A) if prior to the end of such ten-day
period any other Class D Certificateholder notifies such purchasing Class D
Certificateholder that such other Class D Certificateholder wants to
participate in such purchase, then such other Class D Certificateholder may
join with the purchasing Class D Certificateholder to purchase all, but not
less than all, of the Class A-1 Certificates, the Class A-2 Certificates, the
Class B Certificates and the Applicable Certificates pro rata based on the
Fractional Undivided Interest in the Class D Trust held by each such Class D
Certificateholder and (B) if prior to the end of such ten-day period any
other Class D Certificateholder fails to notify the purchasing Class D
Certificateholder of such other Class D Certificateholder's desire to
participate in such a purchase, then such other Class D Certificateholder
shall lose its right to purchase the Class A-1 Certificates, the Class A-2
Certificates, the Class B Certificates and the Applicable Certificates
pursuant to this Section 4.01(b).
The purchase price with respect to the Applicable Certificates
shall be equal to the Pool Balance of the Applicable Certificates, together
with accrued and unpaid interest thereon to the date of such purchase,
without premium, but including any other amounts then due and payable to the
Applicable Certificateholders under the Agreement, the Intercreditor
Agreement, the Escrow Agreement or any Note Document or on or in respect of
the Applicable Certificates; PROVIDED, HOWEVER, that no such purchase of
Applicable Certificates shall be effective unless the purchaser(s) shall
certify to the Trustee that contemporaneously with such purchase, such
purchaser(s) is (are) purchasing, pursuant to the terms of the Agreement and
the Other Agreements, the Class A-1 Certificates, the Class A-2 Certificates,
the Class B Certificates and the Applicable Certificates that are senior to
the securities held by such purchaser(s). Each payment of the purchase price
of the Applicable Certificates referred to in the first sentence hereof shall
be made to an account or accounts designated by the Trustee and each such
purchase shall be subject to the terms of this Section 4.01(b). Each
Applicable Certificateholder agrees by its acceptance of its Applicable
Certificate that (at any time after the occurrence and during the
continuation of a Triggering Event) it will, upon payment from such Class D
Certificateholder(s) of the purchase price set forth in the first sentence of
this paragraph, (i) forthwith sell, assign, transfer and convey to the
purchaser(s) thereof (without recourse, representation or warranty of any
kind except for its own acts), all of the right, title, interest and
obligation of such Applicable Certificateholder in the Agreement, the Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity
Facility, the Note Documents, the NPA and all Applicable Certificates and
Escrow Receipts held by such Applicable Certificateholder (excluding all
right, title and interest under any of the foregoing to the extent such
right, title or interest is with respect to an obligation not then due and
payable as respects any action or inaction or state of affairs occurring
prior to such sale) (and the purchaser shall assume all of such Applicable
Certificateholder's obligations under the Agreement, the Escrow Agreement,
the Deposit Agreement, the Intercreditor Agreement, the Liquidity Facility,
the NPA, the Note Documents and all such Applicable Certificates and Escrow
Receipts), (ii) if such purchase occurs after a record date specified in
Section 2.03 of the Escrow Agreement relating to the distribution of unused
Deposits and/or accrued and unpaid interest on Deposits and prior to or on
the related distribution date thereunder, forthwith turn over to the
purchaser(s) of its Applicable Certificate all amounts, if any, received by
it on account of such distribution, and (iii) if such purchase occurs after a
Record Date relating to any distribution and prior to or on the related
Distribution Date, forthwith turn over to the purchaser(s) of its Applicable
Certificate all amounts, if any, received by it on account of such
distribution. The Applicable Certificates will be deemed to be purchased on
the date payment of the purchase price is made notwithstanding the failure of
the Applicable Certificateholders to deliver any Applicable Certificates and,
upon such a purchase, (I) the only rights of the Applicable
Certificateholders will be to deliver the Applicable Certificates to the
purchaser(s) and receive the purchase price for such Applicable Certificates
and (II) if the purchaser(s) shall so request, such Applicable
Certificateholder will comply with all the provisions of Section 3.04 of the
Basic Agreement to enable new Applicable Certificates to be issued to the
purchaser in such denominations as it shall request. All charges and
expenses in connection with the issuance of any such new Applicable
Certificates shall be borne by the purchaser thereof.
As used in this Section 4.01 and elsewhere in this Trust
Supplement, the terms "Class A-1 Certificate", "Class A-1 Trust", "Class A-1
Trust Agreement", "Class A-1 Trustee", "Class A-2 Certificate", "Class A-2
Trust", "Class A-2 Trust Agreement", "Class A-2 Trustee", "Class B
Certificate", "Class B Trust", "Class B Trust Agreement", "Class B Trustee",
"Class D Certificate" and "Class D Trust", shall have the respective meanings
assigned to such terms in the Intercreditor Agreement.
(c) 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. This 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 this 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 this Agreement, each Holder of any such
Applicable Certificate as grantor of the Applicable Trust thereby joins in
the creation and declaration of the Applicable Trust. The provisions of this
Section 5.01(b) supersede and replace the provisions of Section 2.03 of the
Basic Agreement, with respect to the Applicable Trust.
Section 5.02. [Intentionally Omitted]
Section 5.03. THE TRUSTEE. (a) Subject to Section 5.04 of this
Trust Supplement and Section 7.15 of the Basic Agreement, the Trustee shall not
be responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Trust Supplement, the Deposit Agreement, the NPA or the
Escrow Agreement or the due execution hereof or thereof by the Company or the
other parties thereto (other than the Trustee), or for or in respect of the
recitals and statements contained herein or therein, all of which recitals and
statements are made solely by the Company, except that the Trustee hereby
represents and warrants that each of this Trust Supplement, the Basic Agreement,
each Applicable Certificate, the Intercreditor Agreement, the NPA and the Escrow
Agreement has been executed and delivered by one of its officers who is duly
authorized to execute and deliver such document on its behalf.
(b) Except as herein otherwise provided and except during the
continuation of an Event of Default in respect of the Applicable Trust
created hereby, no duties, responsibilities or liabilities are assumed, or
shall be construed to be assumed, by the Trustee by reason of this Trust
Supplement other than as set forth in the Agreement, and this Trust
Supplement is executed and accepted on behalf of the Trustee, subject to all
the terms and conditions set forth in the Agreement, as fully to all intents
as if the same were herein set forth at length.
Section 5.04. REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE.
The Trustee hereby represents and warrants, on the Transfer Date, that:
(a) the Trustee has full power, authority and legal right to
receive the Trust Property assigned by the Related Trustee, assume the
obligations under, and perform, the Assignment and Assumption Agreement, this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the NPA
and the Note Documents to which it is a party and has taken all necessary
action to authorize such receipt, assumption and performance by it of this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the NPA
and the Note Documents to which it is a party;
(b) the receipt of the Trust Property under the Assignment and
Assumption Agreement and the performance by the Trustee of the Assignment and
Assumption Agreement, this Trust Supplement, the Intercreditor Agreement, the
Escrow Agreement, the NPA and the Note Documents to which it is a party
(i) will not violate any provision of any United States federal law or the
law of the state of the United States where it is located governing the
banking and trust powers of the Trustee or any order, writ, judgment, or
decree of any court, arbitrator or governmental authority applicable to the
Trustee or any of its assets, (ii) will not violate any provision of the
articles of association or by-laws of the Trustee, and (iii) will not violate
any provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of any lien on any
properties included in the Trust Property pursuant to the provisions of any
mortgage, indenture, contract, agreement or other undertaking to which it is
a party, which violation, default or lien could reasonably be expected to
have an adverse effect on the Trustee's performance or ability to perform its
duties hereunder or thereunder or on the transactions contemplated herein or
therein;
(c) the receipt of the Trust Property under the Assignment and
Assumption Agreement and the performance by the Trustee of the Assignment and
Assumption Agreement, this Trust Supplement, the Intercreditor Agreement, the
Escrow Agreement, the NPA and the Note Documents to which it is a party will
not require the authorization, consent, or approval of, the giving of notice
to, the filing or registration with, or the taking of any other action in
respect of, any governmental authority or agency of the United States or the
state of the United States where it is located regulating the banking and
corporate trust activities of the Trustee; and
(d) the Assignment and Assumption Agreement has been duly
executed and delivered by the Trustee and this Trust Supplement, the
Intercreditor Agreement, the Escrow Agreement, the NPA and the Note Documents
to which it is a party have been, or will be, as applicable, duly executed
and delivered by the Trustee and constitute, or will constitute, as
applicable, the legal, valid and binding agreements of the Trustee,
enforceable against it in accordance with their respective terms; PROVIDED,
HOWEVER, that enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights
of creditors generally and (ii) general principles of equity.
Section 5.05. TRUSTEE LIENS. The Trustee in its individual
capacity agrees, in addition to the agreements contained in Section 7.17 of
the Basic Agreement, that it will at its own cost and expense promptly take
any action as may be necessary to duly discharge and satisfy in full any
Trustee's Liens on or with respect to the Trust Property which is
attributable to the Trustee in its individual capacity and which is unrelated
to the transactions contemplated by the Intercreditor Agreement or the NPA.
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, (i) enter into one or more agreements supplemental to the Escrow
Agreement, the NPA or the Deposit Agreement, for any of the purposes set
forth in clauses (1) through (9) of such Section 9.01, and (without
limitation of the foregoing or Section 9.01 of the Basic Agreement)
(a) clauses (2) and (3) of such Section 9.01 shall also be deemed to include
the Company's obligations under (in the case of clause (2)), and the
Company's rights and powers conferred by (in the case of clause (3)), the
NPA, and (b) references in clauses (4), (6) and (7) of such Section 9.01 to
"any Intercreditor Agreement or any Liquidity Facility" shall also be deemed
to refer to "the Intercreditor Agreement, the Liquidity Facility, the Escrow
Agreement, the NPA or the Deposit Agreement" and (ii) enter into one or more
agreements supplemental to this Agreement to provide for the formation of a
Class D Trust, the issuance of Class D Certificates, the purchase by the
Class D Trust of Equipment Notes and other matters incidental thereto or
otherwise contemplated by Section 2.01(b) of the Basic 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 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.
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 this 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 related Owner
Trustees, the Owner Participants and 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:
--------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President - Finance
WILMINGTON TRUST COMPANY,
as Trustee
By:
--------------------------------------
Name:
Title:
