[Execution copy]
TRUST SUPPLEMENT No. 2002-1G-2-O
Dated as of March 25, 2002
between
WILMINGTON TRUST COMPANY
as Trustee,
and
CONTINENTAL AIRLINES, INC.
to
PASS THROUGH TRUST AGREEMENT
Dated as of September 25, 1997
$194,522,000
Continental Airlines Pass Through Trust 2002-1G-2-O
6.563% Continental Airlines
Pass Through Certificates,
Series 2002-1G-2-O
TABLE OF CONTENTS
PAGE
ARTICLE I THE CERTIFICATES.....................................................2
Section 1.01. The Certificates...........................................2
ARTICLE II DEFINITIONS.........................................................4
Section 2.01. Definitions................................................4
ARTICLE III CERTIFICATES; DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS...............................................10
Section 3.01. Statements to Applicable Certificateholders...............10
Section 3.02. Special Payments Account..................................12
Section 3.03. Distributions from Special Payments Account...............12
Section 3.04. Limitation of Liability for Payments......................14
ARTICLE IV DEFAULT............................................................14
Section 4.01. Purchase Rights of Certificateholders.....................14
Section 4.02. Amendment of Section 6.05 of the Basic Agreement..........18
ARTICLE V THE TRUSTEE.........................................................18
Section 5.01. Delivery of Documents; Delivery Dates.....................18
Section 5.02. Withdrawal of Deposits....................................20
Section 5.03. The Trustee...............................................20
Section 5.04. Representations and Warranties of the Trustee.............20
Section 5.05. Trustee Liens.............................................21
ARTICLE VI ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS......................21
Section 6.01. Amendment of Section 5.02 of the Basic Agreement..........21
Section 6.02. Supplemental Agreements Without Consent of Applicable
Certificateholders.......................................21
Section 6.03. Supplemental Agreements with Consent of Applicable
Certificateholders.......................................22
Section 6.04. Consent of Holders of Certificates Issued under
Other Trusts.............................................22
ARTICLE VII TERMINATION OF TRUST..............................................23
Section 7.01. Termination of the Applicable Trust.......................23
ARTICLE VIII MISCELLANEOUS PROVISIONS.........................................25
Section 8.01. Basic Agreement Ratified..................................25
Section 8.02. GOVERNING LAW.............................................25
Section 8.03. Execution in Counterparts.................................25
Section 8.04. Intention of Parties......................................25
Exhibit A - Form of Certificate
Exhibit B - DTC Letter of Representations
Exhibit C - Form of Assignment and Assumption Agreement
This Trust Supplement No. 2002-1G-2-O, dated as of March 25, 2002
(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, the Company intends to finance the acquisition of each such
Aircraft through separate secured loan transactions, under which the Company
will own such Aircraft (collectively, the "OWNED AIRCRAFT");
WHEREAS, in the case of each Owned Aircraft, the Company will issue
pursuant to an Indenture, on a recourse basis, Equipment Notes to finance a
portion of the purchase price of such Owned Aircraft;
WHEREAS, the Trustee hereby declares the creation of the Continental
Airlines Pass Through Trust 2002-1G-2-O (the "APPLICABLE TRUST") for the benefit
of the Applicable Certificateholders, and the initial Applicable
Certificateholders as the grantors of the Applicable Trust, by their respective
acceptances of the Applicable Certificates, join in the creation of the
Applicable Trust with the Trustee;
WHEREAS, all Certificates to be issued by the Applicable Trust will
evidence fractional undivided interests in the Applicable Trust and will convey
no rights, benefits or interests in respect of any property other than the Trust
Property except for those Certificates to which an Escrow Receipt has been
affixed;
WHEREAS, the Escrow Agent and the Underwriters have
contemporaneously herewith entered into an Escrow Agreement with the Escrow
Paying Agent pursuant to which the Underwriters have delivered to the Escrow
Agent the proceeds from the sale of the Applicable Certificates, to the extent
not used to purchase Equipment Notes on the Issuance Date, and have irrevocably
instructed the Escrow Agent to withdraw and pay funds from such proceeds upon
request and proper certification by the Trustee to purchase Equipment Notes as
the Aircraft are delivered by Boeing under the Aircraft Purchase Agreement from
time to time prior to the Delivery Period Termination Date;
WHEREAS, the Escrow Agent on behalf of the Applicable
Certificateholders has contemporaneously herewith entered into a Deposit
Agreement with the Depositary under which the Deposits referred to therein will
be made and from which it will withdraw funds to allow the Trustee to purchase
Equipment Notes from time to time prior to the Delivery Period Termination Date;
WHEREAS, pursuant to the terms and conditions of the Basic Agreement
as supplemented by this Trust Supplement (the "AGREEMENT") and the NPA, upon the
financing of an Aircraft, the Trustee on behalf of the Applicable Trust, using
funds withdrawn under the Escrow Agreement (or, if financed on the Issuance
Date, using a portion of the proceeds of the sale of the Applicable
Certificates), shall purchase one or more Equipment Notes having the same
interest rate as, and final maturity date not later than the final Regular
Distribution Date of, the Applicable Certificates issued hereunder and shall
hold such Equipment Notes in trust for the benefit of the Applicable
Certificateholders;
WHEREAS, all of the conditions and requirements necessary to make
this Trust Supplement, when duly executed and delivered, a valid, binding and
legal instrument in accordance with its terms and for the purposes herein
expressed, have been done, performed and fulfilled, and the execution and
delivery of this Trust Supplement in the form and with the terms hereof have
been in all respects duly authorized;
WHEREAS, this Trust Supplement is subject to the provisions of the
Trust Indenture Act of 1939, as amended, and shall, to the extent applicable, be
governed by such provisions;
NOW THEREFORE, in consideration of the premises herein, it is agreed
between the Company and the Trustee as follows:
ARTICLE I
THE CERTIFICATES
Section 1.01. THE CERTIFICATES. There is hereby created a series of
Certificates to be issued under the Agreement to be distinguished and known as
"6.563% Continental Airlines Pass Through Certificates, Series 2002-1G-2-O"
(hereinafter defined as the "APPLICABLE CERTIFICATES"). Each Applicable
Certificate represents a fractional undivided interest in the Applicable Trust
created hereby. The Applicable Certificates shall be the only instruments
evidencing a fractional undivided interest in the Applicable Trust.
The terms and conditions applicable to the Applicable Certificates
are as follows:
(a) The aggregate principal amount of the Applicable Certificates
that shall be authenticated under the Agreement (except for Applicable
Certificates authenticated and delivered under Sections 3.03, 3.04, 3.05
and 3.06 of the Basic Agreement) is $194,522,000.
(b) The Regular Distribution Dates with respect to any payment of
Scheduled Payments means February 15, May 15, August 15 and November 15 of
each year, commencing on May 15, 2002, 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
hereto as Exhibit A. Any Person acquiring or accepting an Applicable
Certificate or an interest therein will, by such acquisition or
acceptance, be deemed to represent and warrant to and for the benefit of
the Company that either (i) the assets of an employee benefit plan subject
to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or of a plan subject to Section 4975 of the Internal
Revenue Code of 1986, as amended (the "CODE"), have not been used to
purchase Applicable Certificates or an interest therein or (ii) the
purchase and holding of Applicable Certificates or an interest therein is
exempt from the prohibited transaction restrictions of ERISA and the Code
pursuant to one or more prohibited transaction statutory or administrative
exemptions.
(ii) The Applicable Certificates shall be Book-Entry Certificates
and shall be subject to the conditions set forth in the Letter of
Representations between the Company and the Clearing Agency attached
hereto as Exhibit B.
(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
Primary Liquidity Facility and the Policy.
(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 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: Has the meaning specified in the recitals hereto.
AIRCRAFT: Means each of the New Aircraft or Substitute Aircraft in
respect of which a Participation Agreement is to be or is, as the case may
be, entered into in accordance with the NPA (or any substitute aircraft,
including engines therefor, owned by the Company and securing one or more
Equipment Notes).
AIRCRAFT PURCHASE AGREEMENT: Has the meaning specified in the NPA.
APPLICABLE CERTIFICATE: Has the meaning specified in Section 1.01 of
this Trust Supplement.
APPLICABLE CERTIFICATEHOLDER: Means the Person in whose name an
Applicable Certificate is registered on the Register for the Applicable
Certificates.
APPLICABLE DELIVERY DATE: Has the meaning specified in Section
5.01(b) of this Trust Supplement.
APPLICABLE PARTICIPATION AGREEMENT: Has the meaning specified in
Section 5.01(b) of this Trust Supplement.
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 hereto
executed and delivered in accordance with Section 7.01 of this 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, or, so long as any Applicable Certificate is
Outstanding, the city and state in which the Trustee, the Subordination
Agent or any Loan Trustee maintains its Corporate Trust Office or receives
and disburses funds, and, if any Series G-1 Equipment Notes (as defined in
the Intercreditor Agreement) or Series H Equipment Notes (as defined in
the Intercreditor Agreement) are outstanding, which is also a day for
trading by and between banks in the London interbank Eurodollar market.
CERTIFICATE: Has the meaning specified in the Intercreditor
Agreement.
CLASS: Has the meaning specified in the Intercreditor Agreement.
COMPANY: Has the meaning specified in the first paragraph of this
Trust Supplement.
CONTROLLING PARTY: Has the meaning specified in the Intercreditor
Agreement.
CUT-OFF DATE: Means the earlier of (a) the Delivery Period
Termination Date and (b) the date on which a Triggering Event occurs.
DELIVERY NOTICE: Has the meaning specified in the NPA.
DELIVERY PERIOD TERMINATION DATE: Means the earlier of (a) August
31, 2002, or, if the Equipment Notes relating to all of the New Aircraft
(or Substitute Aircraft in lieu thereof) have not been purchased by the
Applicable Trust and the Other Trusts on or prior to such date due to any
reason beyond the control of the Company and not occasioned by the
Company's fault or negligence, November 30, 2002 (PROVIDED that, if a
labor strike occurs at Boeing on or prior to either or both of such dates
referred to in this clause (a), such date or dates on or following the
commencement of such strike shall be extended by adding thereto the number
of days that such strike continued in effect), and (b) the date on which
Equipment Notes issued with respect to all of the New Aircraft (or
Substitute Aircraft in lieu thereof) have been purchased by the Applicable
Trust and the Other Trusts in accordance with the NPA.
DEPOSIT AGREEMENT: Means the Deposit Agreement dated as of March 25,
2002 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.
DEPOSIT MAKE-WHOLE PREMIUM: Has the meaning specified in the NPA.
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, Xxxxx Fargo Bank Northwest, National
Association, and any replacement or successor therefor appointed in
accordance with the Escrow Agreement.
ESCROW AGREEMENT: Means the Escrow and Paying Agent Agreement dated
as of March 25, 2002 relating to the Applicable Certificates, among the
Escrow Agent, the Escrow Paying Agent, the Trustee and 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 August 15, 2013.
FINAL WITHDRAWAL: Has the meaning specified in the Escrow Agreement.
FINAL WITHDRAWAL DATE: Has the meaning specified in the Escrow
Agreement.
FINAL WITHDRAWAL NOTICE: Has the meaning specified in Section 5.02
of this Trust Supplement.
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 March 25, 2002 among the Trustee, the Other Trustees, the Primary
Liquidity Provider, the primary liquidity provider and the above-cap
liquidity provider relating to the Class G-1 Certificates, the Policy
Provider and Wilmington Trust Company, as Subordination Agent and as
trustee thereunder, as amended, supplemented or otherwise modified from
time to time in accordance with its terms.
INVESTORS: Means the Underwriters, together with all subsequent
beneficial owners of the Applicable Certificates.
MAKE-WHOLE AMOUNT: Has the meaning specified in the Indentures.
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, the
Indenture and the Participation Agreement relating to such Equipment Note.
NOTICE OF PURCHASE WITHDRAWAL: Has the meaning specified in the
Deposit Agreement.
NPA: Means the Note Purchase Agreement dated as of March 25, 2002
among the Trustee, the Other Trustees, the Company, the Escrow Agent, the
Escrow Paying Agent and the Subordination Agent, providing for, among
other things, the purchase of Equipment Notes by the Trustee on behalf of
the Trust, 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. 2002-1G-1-O dated as of the date hereof relating to
Continental Airlines Pass Through Trust 2002-1G-1-O, (ii) the Basic
Agreement as supplemented by Trust Supplement No. 2002-1H-O dated as of
the date hereof relating to Continental Airlines Pass Through Trust
2002-1H-O and (iii) the Basic Agreement as supplemented by Trust
Supplement No. 2002-1I-O dated as of the date hereof relating to
Continental Airlines Pass Through Trust 2002-1I-O.
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
2002-1G-1-O, the Continental Airlines Pass Through Trust 2002-1H-O and the
Continental Airlines Pass Through Trust 2002-1I-O, created by the Other
Agreements.
OWNED AIRCRAFT: Has the meaning specified in the third recital to
this Trust Supplement.
PARTICIPATION AGREEMENT: Means each Participation Agreement to be
entered into, or entered into (as the case may be), by the Trustee
pursuant to the NPA, as the same may be amended, supplemented or otherwise
modified in accordance with its terms.
POLICY: Means, with respect to the Applicable Certificates, Ambac
Certificate Guarantee Insurance Policy No. AB0543BE, together with the
Certificate Guaranty Insurance Policy Endorsement attached thereto, issued
as of the Closing Date, as amended, supplemented or otherwise modified
from time to time in accordance with its terms.
POLICY PROVIDER: Has the meaning specified in the Intercreditor
Agreement.
POLICY PROVIDER AGREEMENT: Has the meaning specified in the
Intercreditor Agreement.
POLICY PROVIDER DEFAULT: Has the meaning specified in the
Intercreditor Agreement.
POOL BALANCE: Means, as of any date, (i) the original aggregate face
amount of the Applicable Certificates less (ii) the aggregate amount of
all payments made as of such date in respect of such Applicable
Certificates or in respect of Deposits other than payments made in respect
of interest or premium, Make-Whole Amount or Deposit Make-Whole Premium
thereon or reimbursement of any costs or expenses incurred in connection
therewith. The Pool Balance as of any date shall be computed after giving
effect to any special distribution with respect to unused Deposits,
payment of principal of the Equipment Notes, payments under the Policy
(other than in respect of interest on the Applicable Certificates) or
payment with respect to other Trust Property and the distribution thereof
to be made on that date.
POOL FACTOR: Means, as of any 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. 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, payment
under the Policy (other than in respect of interest on the Applicable
Certificates) or payment with respect to other Trust Property and the
distribution thereof to be made on that date.
PRIMARY LIQUIDITY FACILITY: Means, initially, the Revolving Credit
Agreement dated as of March 25, 2002 relating to the Applicable
Certificates, between the Primary 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 primary liquidity facility
therefor, in each case as amended, supplemented or otherwise modified from
time to time in accordance with their respective terms.
PRIMARY 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.
PROSPECTUS SUPPLEMENT: Means the final Prospectus Supplement dated
March 11, 2002 relating to the offering of the Applicable Certificates and
the Class G-1 Certificates.
RATINGS CONFIRMATION: Has the meaning specified in the Intercreditor
Agreement.
REFERENCE AGENCY AGREEMENT: Has the meaning specified in the NPA.
RELATED PASS THROUGH TRUST AGREEMENT: Means the Basic Agreement as
supplemented by the Trust Supplement No. 2002-1G-2-S dated as of the date
hereof relating to the Continental Airlines Pass Through Trust 2002-1G-2-S
and entered into by the Company and the Trustee, which agreement becomes
effective upon the execution and delivery of the Assignment and Assumption
Agreement pursuant to Section 7.01 of this Trust Supplement.
RELATED TRUST: Means the Continental Pass Through Trust 2002-1G-2-S,
to be formed under the Related Pass Through Trust Agreement.
RELATED TRUSTEE: Means the trustee under the Related Pass Through
Trust Agreement.
SCHEDULED DELIVERY DATE: Has the meaning specified in the NPA.
SCHEDULED PAYMENT: Means, with respect to any Equipment Note, (i)
any payment of principal or interest on such Equipment Note (other than
any such payment which is not in fact received by the Trustee or any
Subordination Agent within five days of the date on which such payment is
scheduled to be made) or (ii) any payment of interest on the Applicable
Certificates with funds drawn under the Primary Liquidity Facility or any
payment of interest on or principal of the Applicable Certificates with
funds drawn under the Policy, which payment in any such case represents
the installment of principal on such Equipment Note at the stated maturity
of such installment, the payment of regularly scheduled interest accrued
on the unpaid principal amount of such Equipment Note, or both; PROVIDED,
HOWEVER, that any payment of principal, premium, Make-Whole Amount or
Deposit Make-Whole Premium, if any, or interest resulting from the
redemption or purchase of any Equipment Note shall not constitute a
Scheduled Payment.
SPECIAL PAYMENT: Means any payment (other than a Scheduled Payment)
in respect of, or any proceeds of, any Equipment Note, Collateral (as
defined in each Indenture) or Deposit Make-Whole Premium.
SUBSTITUTE AIRCRAFT: Has the meaning specified in the NPA.
TRANSFER DATE: Has the meaning specified in Section 7.01 of this
Trust Supplement.
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, the
Primary Liquidity Facility and the Policy, including, without limitation,
all rights to receive certain payments thereunder, and all monies paid to
the Trustee on behalf of the Applicable Trust pursuant to the
Intercreditor Agreement, the Primary Liquidity Facility or the Policy,
PROVIDED that rights with respect to the Deposits or under the Escrow
Agreement, except for the right to direct withdrawals for the purchase of
Equipment Notes to be held herein, will not constitute Trust Property.
TRUST SUPPLEMENT: Has the meaning specified in the first paragraph
of this trust supplement.
TRUSTEE: Has the meaning specified in the first paragraph of this
Trust Supplement.
UNDERWRITERS: Means, collectively, Credit Suisse First Boston
Corporation, X.X. Xxxxxx Securities Inc., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Xxxxxxx Xxxxx Barney Inc. and Xxxxxx Xxxxxxx & Co.
Incorporated.
UNDERWRITING AGREEMENT: Means the Underwriting Agreement dated March
11, 2002 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
CERTIFICATES; DISTRIBUTIONS; 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, including any portion thereof paid by the
Primary Liquidity Provider or the Policy Provider;
(ii) the amount of such distribution under the Agreement allocable
to principal and the amount allocable to premium, Make-Whole Amount or
Deposit Make-Whole 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 U.S. federal income tax returns. Such statement and such other items
shall be prepared on the basis of information supplied to the Trustee by the
Clearing Agency Participants and shall be delivered by the Trustee to such
Clearing Agency Participants to be available for forwarding by such Clearing
Agency Participants to the holders of interests in the Applicable Certificates
in the manner described in Section 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-42 of the
Prospectus Supplement, by no later than the 15th day prior to such Regular
Distribution Date, the Trustee 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 (y) and (z)
below from that set forth in page S-42 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 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 Delivery Period Termination 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 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.
(e) This Section 3.01 supersedes and replaces Section 4.03 of the
Basic Agreement, with respect to the Applicable Trust.
Section 3.02. SPECIAL PAYMENTS ACCOUNT. (a) The Trustee shall
establish and maintain on behalf of the Applicable Certificateholders a Special
Payments Account as one or more accounts, which shall be non-interest bearing
except as provided in Section 4.04 of the Basic Agreement. The Trustee shall
hold the Special Payments Account in trust for the benefit of the Applicable
Certificateholders and shall make or permit withdrawals therefrom only as
provided in the Agreement. On each day when one or more Special Payments are
made to the Trustee under the Intercreditor Agreement and upon the payment of
the Deposit Make-Whole Premium to the Trustee under the NPA, the Trustee, upon
receipt thereof, shall immediately deposit the aggregate amount of such Special
Payments in the Special Payments Account.
(b) This Section 3.02 supersedes and replaces Section 4.01(b) of the
Basic Agreement in its entirety, with respect to the Applicable Trust.
Section 3.03. DISTRIBUTIONS FROM SPECIAL PAYMENTS ACCOUNT. (a) On
each Special Distribution Date with respect to any Special Payment or as soon
thereafter as the Trustee has confirmed receipt of any Special Payments due on
the Equipment Notes held (subject to the Intercreditor Agreement) in the
Applicable Trust or realized upon the sale of such Equipment Notes or receipt of
the Deposit Make-Whole Premium, the Trustee shall distribute out of the Special
Payments Account the entire amount of such Special Payment deposited therein
pursuant to Section 3.02(a) of this Trust Supplement. There shall be so
distributed to each Applicable Certificateholder of record on the Record Date
with respect to such Special Distribution Date (other than as provided in
Section 7.01 of this Trust Supplement concerning the final distribution) by
check mailed to such Applicable Certificateholder, at the address appearing in
the Register, such Applicable Certificateholder's pro rata share (based on the
Fractional Undivided Interest in the Applicable Trust held by such Applicable
Certificateholder) of the total amount in the Special Payments Account on
account of such Special Payment, except that, with respect to Applicable
Certificates registered on the Record Date in the name of a Clearing Agency (or
its nominee), such distribution shall be made by wire transfer in immediately
available funds to the account designated by such Clearing Agency (or such
nominee).
(b) The Trustee shall, at the expense of the Company, cause notice
of each Special Payment to be mailed to each Applicable Certificateholder at his
address as it appears in the Register. In the event of redemption or purchase of
Equipment Notes held in the Applicable Trust, such notice shall be mailed not
less than 15 days prior to the Special Distribution Date for the Special Payment
resulting from such redemption or purchase, which Special Distribution Date
shall be the date of such redemption or purchase. In the case of any
distribution pursuant to Section 3.7(c) or Section 3.7(e) of the Intercreditor
Agreement, the Trustee will mail notice to the Applicable Certificateholders not
less than 15 days prior to the Special Distribution Date determined for such
distribution. In the event of the payment of a Deposit Make-Whole Premium by the
Company to the Trustee under the NPA, such notice shall be mailed, together with
the notice by the Escrow Paying Agent under Section 2.07 of the Escrow
Agreement, not less than 15 days prior to the Special Distribution Date for such
amount. In the case of any other Special Payments, such notice shall be mailed
as soon as practicable after the Trustee has confirmed that it has received
funds for such Special Payment, stating the Special Distribution Date for such
Special Payment which shall occur not less than 15 days after the date of such
notice and as soon as practicable thereafter. Notices mailed by the Trustee
shall set forth:
(i) the Special Distribution Date and the Record Date therefor
(except as otherwise provided in Section 7.01 of this Trust Supplement),
(ii) the amount of the Special Payment for each $1,000 face amount
Applicable Certificate and the amount thereof constituting principal,
premium, Make-Whole Amount or Deposit Make-Whole Premium, if any, and
interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a Regular
Distribution Date, the total amount to be received on such date for each
$1,000 face amount Applicable Certificate.
If the amount of (i) premium or Make-Whole Amount, if any, payable upon the
redemption or purchase of an Equipment Note or (ii) the Deposit Make-Whole
Premium, if any, has not been calculated at the time that the Trustee mails
notice of a Special Payment, it shall be sufficient if the notice sets forth the
other amounts to be distributed and states that any premium, Make-Whole Amount
or Deposit Make-Whole Premium received will also be distributed.
If any redemption of the Equipment Notes held in the Trust is
canceled, the Trustee, as soon as possible after learning thereof, shall cause
notice thereof to be mailed to each Applicable Certificateholder at its address
as it appears on the Register.
(b) This Section 3.03 supersedes and replaces Section 4.02(b) and
Section 4.02(c) of the Basic Agreement in their entirety, with respect to the
Applicable Trust.
Section 3.04. LIMITATION OF LIABILITY FOR PAYMENTS. Section 3.09 of
the Basic Agreement shall be amended, with respect to the Applicable Trust, by
deleting the phrase "the Owner Trustees or the Owner Participants" in the second
sentence thereof and adding in lieu thereof " the Primary Liquidity Provider or
the Policy Provider".
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, if the
Class G-1 Trustee is then the Controlling Party, each Applicable
Certificateholder (other than the Company or any of its Affiliates) shall have
the right to purchase, for the purchase price set forth in the Class G-1 Trust
Agreement, all, but not less than all, of the Class G-1 Certificates upon ten
days' written notice to the Class G-1 Trustee and each other Applicable
Certificateholder, PROVIDED that (i) if prior to the end of such ten-day period
any other Applicable Certificateholder (other than the Company or any of its
Affiliates) notifies such purchasing Applicable Certificateholder that such
other Applicable Certificateholder wants to participate in such purchase, then
such other Applicable Certificateholder (other than the Company or any of its
Affiliates) may join with the purchasing Applicable Certificateholder to
purchase all, but not less than all, of the Class G-1 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 G-1 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,
(i) if the Trustee is then the Controlling Party, each Class G-1
Certificateholder (other than the Company or any of its Affiliates) shall
have the right to purchase all, but not less than all, of the Applicable
Certificates upon ten days' written notice to the Trustee and each other
Class G-1 Certificateholder, PROVIDED that (A) if prior to the end of such
ten-day period any other Class G-1 Certificateholder (other than the
Company or any of its Affiliates) notifies such purchasing Class G-1
Certificateholder that such other Class G-1 Certificateholder wants to
participate in such purchase, then such other Class G-1 Certificateholder
(other than the Company or any of its Affiliates) may join with the
purchasing Class G-1 Certificateholder to purchase all, but not less than
all, of the Applicable Certificates pro rata based on the Fractional
Undivided Interest in the Class G-1 Trust held by each such Class G-1
Certificateholder and (B) if prior to the end of such ten-day period any
other Class G-1 Certificateholder fails to notify the purchasing Class G-1
Certificateholder of such other Class G-1 Certificateholder's desire to
participate in such a purchase, then such other Class G-1
Certificateholder shall lose its right to purchase the Applicable
Certificates pursuant to this Section 4.01(b)(i);
(ii) each Class H Certificateholder (other than the Company or any
of its Affiliates) shall have the right (which shall not expire upon any
purchase of the Applicable Certificates pursuant to clause (a) or (b)(i)
above) to purchase all, but not less than all, of the Applicable
Certificates and the Class G-1 Certificates upon ten days' written notice
to the Trustee, the Class G-1 Trustee and each other Class H
Certificateholder, PROVIDED that (A) if prior to the end of such ten-day
period any other Class H Certificateholder (other than the Company or any
of its Affiliates) notifies such purchasing Class H Certificateholder that
such other Class H Certificateholder wants to participate in such
purchase, then such other Class H Certificateholder (other than the
Company or any of its Affiliates) may join with the purchasing Class H
Certificateholder to purchase all, but not less than all, of the
Applicable Certificates and the Class G-1 Certificates pro rata based on
the Fractional Undivided Interest in the Class H Trust held by each such
Class H Certificateholder and (B) if prior to the end of such ten-day
period any other Class H Certificateholder fails to notify the purchasing
Class H Certificateholder of such other Class H Certificateholder's desire
to participate in such a purchase, then such other Class H
Certificateholder shall lose its right to purchase the Applicable
Certificates and the Class G-1 Certificates pursuant to this Section
4.01(b)(ii);
(iii) if Re-Issued Class H Certificates are issued, each Re-Issued
Class H Certificateholder (other than the Company or any of its
Affiliates) shall have the right (which shall not expire upon any purchase
of the Applicable Certificates pursuant to clause (a), (b)(i) or (b)(ii)
above) to purchase all, but not less than all, of the Applicable
Certificates and the Class G-1 Certificates upon ten days' written notice
to the Trustee, the Class G-1 Trustee and each other Re-Issued Class H
Certificateholder, PROVIDED that (A) if prior to the end of such ten-day
period any other Re-Issued Class H Certificateholder (other than the
Company or any of its Affiliates) notifies such purchasing Re-Issued Class
H Certificateholder that such other Re-Issued Class H Certificateholder
wants to participate in such purchase, then such other Re-Issued Class H
Certificateholder (other than the Company or any of its Affiliates) may
join with the purchasing Re-Issued Class H Certificateholder to purchase
all, but not less than all, of the Applicable Certificates and the Class
G-1 Certificates pro rata based on the Fractional Undivided Interest in
the Re-Issued Class H Trust held by each such Re-Issued Class H
Certificateholder and (B) if prior to the end of such ten-day period any
other Re-Issued Class H Certificateholder fails to notify the purchasing
Re-Issued Class H Certificateholder of such other Re-Issued Class H
Certificateholder's desire to participate in such a purchase, then such
other Re-Issued Class H Certificateholder shall lose its right to purchase
the Applicable Certificates and the Class G-1 Certificates pursuant to
this Section 4.01(b)(iii);
(iv) each Class I Certificateholder (other than the Company or any
of its Affiliates) shall have the right (which shall not expire upon any
purchase of the Applicable Certificates pursuant to clause (a), (b)(i),
(b)(ii) or (b)(iii) above) to purchase all, but not less than all, of the
Applicable Certificates, the Class G-1 Certificates, the Class H
Certificates (or, if issued, the Re-Issued Class H Certificates) upon ten
days' written notice to the Trustee, the Class G-1 Trustee, the Class H
Trustee (or, if any Re-Issued Class H Certificates have been issued, the
Re-Issued Class H Trustee) and each other Class I Certificateholder,
PROVIDED that (A) if prior to the end of such ten-day period any other
Class I Certificateholder (other than the Company or any of its
Affiliates) notifies such purchasing Class I Certificateholder that such
other Class I Certificateholder wants to participate in such purchase,
then such other Class I Certificateholder (other than the Company or any
of its Affiliates) may join with the purchasing Class I Certificateholder
to purchase all, but not less than all, of the Applicable Certificates,
the Class G-1 Certificates, the Class H Certificates (or, if issued, the
Re-Issued Class H Certificates) pro rata based on the Fractional Undivided
Interest in the Class I Trust held by each such Class I Certificateholder
and (B) if prior to the end of such ten-day period any other Class I
Certificateholder fails to notify the purchasing Class I Certificateholder
of such other Class I Certificateholder's desire to participate in such a
purchase, then such other Class I Certificateholder shall lose its right
to purchase the Applicable Certificates, the Class G-1 Certificates, the
Class H Certificates (or, if issued, the Re-Issued Class H Certificates)
pursuant to this Section 4.01(b)(iv); and
(v) each Class J Certificateholder, other than the Company or any of
its Affiliates, shall have the right (which shall not expire upon any
purchase of the Applicable Certificates pursuant to clause (a), (b)(i),
(b)(ii), (b)(iii) or (b)(iv) above) to purchase all, but not less than
all, of the Applicable Certificates, the Class G-1 Certificates, the Class
H Certificates (or, if issued, the Re-Issued Class H Certificates) and the
Class I Certificates upon ten days' written notice to the Trustee, the
Class G-1 Trustee, the Class H Trustee (or, if any Re-Issued Class H
Certificates have been issued, the Re-Issued Class H Trustee), the Class I
Trustee and each other Class J Certificateholder, PROVIDED that (A) if
prior to the end of such ten-day period any other Class J
Certificateholder (other than the Company or any of its Affiliates)
notifies such purchasing Class J Certificateholder that such other Class J
Certificateholder wants to participate in such purchase, then such other
Class J Certificateholder (other than the Company or any of its
Affiliates) may join with the purchasing Class J Certificateholder to
purchase all, but not less than all, of the Applicable Certificates, the
Class G-1 Certificates, the Class H Certificates (or, if issued, the
Re-Issued Class H Certificates) and the Class I Certificates pro rata
based on the Fractional Undivided Interest in the Class J Trust held by
each such Class J Certificateholder and (B) if prior to the end of such
ten-day period any other Class J Certificateholder fails to notify the
purchasing Class J Certificateholder of such other Class J
Certificateholder's desire to participate in such a purchase, then such
other Class J Certificateholder shall lose its right to purchase the
Applicable Certificates, the Class G-1 Certificates, the Class H
Certificates (or, if issued, the Re-Issued Class H Certificates) and the
Class I Certificates pursuant to this Section 4.01(b)(v).
(c) By acceptance of its Applicable Certificate, each Applicable
Certificateholder agrees that at any time after 180 days have elapsed since the
occurrence of a Triggering Event that is continuing, regardless of whether the
Applicable Certificateholders exercise their right to purchase the Class G-1
Certificates pursuant to Section 4.01(a), the Policy Provider, if it is then the
Controlling Party, shall have the right (except in the event of a Policy
Provider Default) to purchase all, but not less than all, of the Applicable
Certificates and the Class G-1 Certificates upon ten days' written notice to the
Trustee, the Class G-1 Trustee, the Applicable Certificateholders and the Class
G-1 Certificateholders.
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
(and, if any Re-Issued Class H Certificates have been issued, the pass through
trust agreement relating thereto), (A) in the case of any purchase of the
Applicable Certificates pursuant to clause (b)(i) above, all of the Applicable
Certificates, (B) in the case of any purchase of the Applicable Certificates
pursuant to clause (c) above, all of the Applicable Certificates and the Class
G-1 Certificates, or (C) in all other cases, the Applicable Certificates, the
Class G-1 Certificates, the Class H Certificates (or, if issued, the Re-Issued
Class H Certificates) and the Class I 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. 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 G-1 Certificateholder(s), Class H Certificateholder(s)
(or, if any Re-Issued Class H Certificates have been issued, Re-Issued Class H
Certificateholder(s)), Class I Certificateholder(s), Class J
Certificateholder(s) or the Policy Provider, as the case may be, of the purchase
price set forth in the first sentence of this paragraph, (i) forthwith sell,
assign, transfer and convey to the purchaser(s) thereof (without recourse,
representation or warranty of any kind except for its own acts), all of the
right, title, interest and obligation of such Applicable Certificateholder in
the Agreement, the Escrow Agreement, the Deposit Agreement, the Intercreditor
Agreement, the Primary Liquidity Facility, the Policy, the NPA, the Note
Documents 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
Primary Liquidity Facility, the Policy, 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 G-1 Certificate", "Class G-1 Certificateholder", "Class G-1
Trust", "Class G-1 Trust Agreement", "Class G-1 Trustee", "Class H Certificate",
"Class H Certificateholder", "Class H Trust", "Class H Trustee", "Class I
Certificate", "Class I Certificateholder", "Class I Trust", "Class I Trustee",
"Class J Certificate", "Class J Certificateholder", "Class J Trust", "Re-Issued
Class H Certificate", "Re-Issued Class H Certificateholder", "Re-Issued Class H
Trust" and "Re-Issued Class H Trustee" shall have the respective meanings
assigned to such terms in the Intercreditor Agreement.
(d) 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. DELIVERY OF DOCUMENTS; DELIVERY DATES. (a) The Trustee
is hereby directed (i) to execute and deliver the Intercreditor Agreement, the
Escrow Agreement and the NPA on or prior to the Issuance Date, each in the form
delivered to the Trustee by the Company, and (ii) subject to the respective
terms thereof, to perform its obligations thereunder. Upon request of the
Company and the satisfaction or waiver of the closing conditions specified in
the Underwriting Agreement, the Trustee shall execute, deliver, authenticate,
issue and sell Applicable Certificates in authorized denominations equaling in
the aggregate the amount set forth, with respect to the Applicable Trust, in
Schedule I to the Underwriting Agreement evidencing the entire ownership
interest in the Applicable Trust, which amount equals the maximum aggregate
principal amount of Equipment Notes which may be purchased by the Trustee
pursuant to the NPA. Except as provided in Sections 3.03, 3.04, 3.05 and 3.06 of
the Basic Agreement, the Trustee shall not execute, authenticate or deliver
Applicable Certificates in excess of the aggregate amount specified in this
paragraph. The provisions of this Section 5.01(a) supersede and replace the
first sentence of Section 3.02(a) of the Basic Agreement, with respect to the
Applicable Trust.
(b) On or after the Issuance Date, the Company may deliver from time
to time to the Trustee a Delivery Notice relating to one or more Equipment
Notes. After receipt of a Delivery Notice and in any case no later than one
Business Day prior to a Scheduled Delivery Date as to which such Delivery Notice
relates (the "APPLICABLE DELIVERY DATE"), the Trustee shall (as and when
specified in the Delivery Notice) instruct the Escrow Agent to provide a Notice
of Purchase Withdrawal to the Depositary requesting (A) the withdrawal of one or
more Deposits on the Applicable Delivery Date in accordance with and to the
extent permitted by the terms of the Escrow Agreement and the Deposit Agreement
and (B) the payment of all, or a portion, of such Deposit or Deposits in an
amount equal in the aggregate to the purchase price of such Equipment Notes to
or on behalf of the Company, all as shall be described in the Delivery Notice;
PROVIDED that, if the Issuance Date is an Applicable Delivery Date, the Trustee
shall not so instruct the Escrow Agent, and the purchase price of such Equipment
Notes shall be paid from a portion of the proceeds of the sale of the Applicable
Certificates. The Trustee shall (as and when specified in such Delivery Notice),
subject to the conditions set forth in Section 2 of the NPA, enter into and
perform its obligations under the Participation Agreement specified in such
Delivery Notice (the "APPLICABLE PARTICIPATION AGREEMENT") and cause such
certificates, documents and legal opinions relating to the Trustee to be duly
delivered as required by the Applicable Participation Agreement. If at any time
prior to the Applicable Delivery Date, the Trustee receives a notice of
postponement pursuant to Section 1(e) or 1(f) of the NPA, then the Trustee shall
give the Depositary (with a copy to the Escrow Agent) a notice of cancellation
of such Notice of Purchase Withdrawal relating to such Deposit or Deposits on
such Applicable Delivery Date. Upon satisfaction of the conditions specified in
the NPA and the Applicable Participation Agreement, the Trustee shall purchase
the applicable Equipment Notes with the proceeds of the withdrawals of one or
more Deposits made on the Applicable Delivery Date in accordance with the terms
of the Deposit Agreement and the Escrow Agreement (or, if the Issuance Date is
the Applicable Delivery Date with respect to such Applicable Participation
Agreement, from a portion of the proceeds of the sale of the Applicable
Certificates). The purchase price of such Equipment Notes shall equal the
principal amount of such Equipment Notes. Amounts withdrawn from such Deposit or
Deposits in excess of the purchase price of the Equipment Notes or to the extent
not applied on the Applicable Delivery Date to the purchase price of the
Equipment Notes, shall be re-deposited by the Trustee with the Depositary on the
Applicable Delivery Date in accordance with the terms of the Deposit Agreement.
The provisions of this Section 5.01(b) 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 and Section
2.02 of the Basic Agreement shall not apply to the Applicable Trust.
(c) The Trustee acknowledges its acceptance of all right, title and
interest in and to the Trust Property to be acquired pursuant to Section 5.01(b)
of this Trust Supplement, the NPA and each Applicable Participation Agreement,
and declares that it holds and will hold such right, title and interest for the
benefit of all present and future Applicable Certificateholders, upon the trusts
set forth in the Agreement. By its acceptance of an Applicable Certificate, each
initial Applicable Certificateholder, as a grantor of the Applicable Trust,
joins with the Trustee in the creation of the Applicable Trust. The provisions
of this Section 5.01(c) supersede and replace the provisions of Section 2.03 of
the Basic Agreement, with respect to the Applicable Trust.
Section 5.02. WITHDRAWAL OF DEPOSITS. If any Deposits remain
outstanding on the Business Day next succeeding the Cut-off Date, the Trustee
shall give the Escrow Agent notice that the Trustee's obligation to purchase
Equipment Notes under the NPA has terminated and instruct the Escrow Agent to
provide a notice of Final Withdrawal to the Depositary substantially in the form
of Exhibit B to the Deposit Agreement (the "FINAL WITHDRAWAL Notice").
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 that:
(a) the Trustee has full power, authority and legal right to
execute, deliver and perform this Trust Supplement, the Intercreditor
Agreement, the Escrow Agreement, the NPA and the Note Documents to which
it is or is to become a party and has taken all necessary action to
authorize the execution, delivery and performance by it of this Trust
Supplement, the Intercreditor Agreement, the Escrow Agreement, the NPA and
the Note Documents to which it is or is to become a party;
(b) the execution, delivery and performance by the Trustee of this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the
NPA and the Note Documents to which it is or is to become a party (i) will
not violate any provision of any United States federal law or the law of
the state of the United States where it is located governing the banking
and trust powers of the Trustee or any order, writ, judgment, or decree of
any court, arbitrator or governmental authority applicable to the Trustee
or any of its assets, (ii) will not violate any provision of the articles
of association or by-laws of the Trustee, and (iii) will not violate any
provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of any lien on any
properties included in the Trust Property pursuant to the provisions of
any mortgage, indenture, contract, agreement or other undertaking to which
it is a party, which violation, default or lien could reasonably be
expected to have an adverse effect on the Trustee's performance or ability
to perform its duties hereunder or thereunder or on the transactions
contemplated herein or therein;
(c) the execution, delivery and performance by the Trustee of this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the
NPA and the Note Documents to which it is or is to become a party will not
require the authorization, consent, or approval of, the giving of notice
to, the filing or registration with, or the taking of any other action in
respect of, any governmental authority or agency of the United States or
the state of the United States where it is located regulating the banking
and corporate trust activities of the Trustee; and
(d) this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement, the NPA and the Note Documents to which it is or is to become a
party have been, or will be, as applicable, duly executed and delivered by
the Trustee and constitute, or will constitute, as applicable, the legal,
valid and binding agreements of the Trustee, enforceable against it in
accordance with their respective terms; PROVIDED, HOWEVER, that
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and (ii) general principles of equity.
Section 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, the Deposit Agreement,
the Reference Agency Agreement, the Policy or the Policy Provider Agreement for
any of the purposes set forth in clauses (1) through (9) of such Section 9.01,
and (without limitation of the foregoing or Section 9.01 of the Basic Agreement)
(a) the reference in the introductory paragraph of Section 9.01 of the Basic
Agreement to a "Liquidity Facility" shall be deemed to refer to "the Primary
Liquidity Facility", (b) clauses (2) and (3) of such Section 9.01 shall also be
deemed to include the Company's obligations under (in the case of clause (2)),
and the Company's rights and powers conferred by (in the case of clause (3)),
the NPA, the Reference Agency Agreement, the Policy or the Policy Provider
Agreement, and (c) references in clauses (4), (6) and (7) of such Section 9.01
to "any Intercreditor Agreement or any Liquidity Facility" shall also be deemed
to refer to "the Intercreditor Agreement, the Primary Liquidity Facility, the
Escrow Agreement, the Reference Agency Agreement, the NPA, the Deposit
Agreement, the Policy or the Policy Provider Agreement", (ii) enter into one or
more agreements supplemental to the Agreement, the Intercreditor Agreement, the
Reference Agency Agreement or the NPA to provide for the formation of the
Re-Issued Class H Trust, the issuance of the Re-Issued Class H Certificates, the
purchase by the Re-Issued Class H Trust of Equipment Notes and other matters
incidental thereto or otherwise contemplated by Section 2.01(b) of the Basic
Agreement; PROVIDED that (x) a Ratings Confirmation for the Applicable
Certificates and the Class G-1 Certificates shall have been obtained with
respect to such agreements and (y) the Company shall have certified to the
Trustee and to the Other Trustees that such agreements shall not materially and
adversely affect the Applicable Certificateholders or the Class G-1
Certificateholders and (iii) enter into one or more agreements supplemental to
the Agreement to provide for the formation of a Class J Trust, the issuance of
Class J Certificates, the purchase by the Class J 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, the Primary Liquidity Facility, the Reference Agency Agreement, the
NPA, the Policy or the Policy Provider Agreement or modifying in any manner the
rights and obligations of the Applicable Certificateholders under the Escrow
Agreement, the Deposit Agreement, the Primary Liquidity Facility, the Reference
Agency Agreement, the NPA, the Policy or the Policy Provider Agreement; 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.
Section 6.04. CONSENT OF HOLDERS OF CERTIFICATES ISSUED UNDER OTHER
TRUSTS. Notwithstanding any provision in Section 6.02 or Section 6.03 of this
Trust Supplement to the contrary, no amendment or modification of Section 4.01
of this Trust Supplement shall be effective unless the trustee for each Class of
Certificates affected by such amendment or modification shall have consented
thereto.
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 earlier of (A) the
completion of the assignment, transfer and discharge described in the first
sentence of the immediately following paragraph and (B) distribution to all
Applicable Certificateholders and the Trustee of all amounts required to be
distributed to them pursuant to the Agreement and the disposition of all
property held as part of the Trust Property; PROVIDED, HOWEVER, that in no event
shall the Applicable Trust continue beyond one hundred ten (110) years following
the date of the execution of this Trust Supplement.
Upon the earlier of (i) the first Business Day following August 31,
2002 or, if later, the fifth Business Day following the Delivery Period
Termination Date and (ii) the fifth Business Day following the date on which a
Triggering Event occurs (such date, the "TRANSFER DATE"), or, if later, the date
on which all of the conditions set forth in the immediately following sentence
have been satisfied, the Trustee is hereby directed (subject only to the
immediately following sentence) to, and the Company shall direct the institution
that will serve as the Related Trustee under the Related Pass Through Trust
Agreement to, execute and deliver the Assignment and Assumption Agreement,
pursuant to which the Trustee shall assign, transfer and deliver all of the
Trustee's right, title and interest to the Trust Property to the Related Trustee
under the Related Pass Through Trust Agreement. The Trustee and the Related
Trustee shall execute and deliver the Assignment and Assumption Agreement upon
the satisfaction of the following conditions:
(i) The Trustee, the Related Trustee and each of the Rating Agencies
then rating the Applicable Certificates shall have received an Officer's
Certificate and an Opinion of Counsel dated the date of the Assignment and
Assumption Agreement and each satisfying the requirements of Section 1.02
of the Basic Agreement, which Opinion of Counsel shall be substantially to
the effect set forth below and may be relied upon by the Beneficiaries (as
defined in the Assignment and Assumption Agreement):
(I) Upon the execution and delivery thereof by the parties thereto
in accordance with the terms of the Agreement and the Related Pass Through
Trust Agreement, the Assignment and Assumption Agreement will constitute
the valid and binding obligation of each of the parties thereto
enforceable against each such party in accordance with its terms;
(II) Upon the execution and delivery of the Assignment and
Assumption Agreement in accordance with the terms of the Agreement and the
Related Pass Through Trust Agreement, each of the Applicable Certificates
then Outstanding will be entitled to the benefits of the Related Pass
Through Trust Agreement;
(III) The Related Trust is not required to be registered as an
investment company under the Investment Company Act of 1940, as amended;
(IV) The Related Pass Through Trust Agreement constitutes the valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms; and
(V) Neither the execution and delivery of the Assignment and
Assumption Agreement in accordance with the terms of the Agreement and the
Related Pass Through Trust Agreement, nor the consummation by the parties
thereto of the transactions contemplated to be consummated thereunder on
the date thereof, will violate any law or governmental rule or regulation
of the State of New York or the United States of America known to such
counsel to be applicable to the transactions contemplated by the
Assignment and Assumption Agreement.
(ii) The Trustee and the Company shall have received (x) a copy of
the articles of incorporation and bylaws of the Related Trustee certified
as of the Transfer Date by the Secretary or Assistant Secretary of such
institution and (y) a copy of the filing (including all attachments
thereto) made by the institution serving as the Related Trustee with the
Office of the Superintendent, State of New York Banking Department for the
qualification of the Related Trustee under Section 131(3) of the New York
Banking Law.
Upon the execution of the Assignment and Assumption Agreement by the parties
thereto, the Applicable Trust shall be terminated, the Applicable
Certificateholders shall receive beneficial interests in the Related Trust in
exchange for their interests in the Applicable Trust equal to their respective
beneficial interests in the Applicable Trust, and the Outstanding Applicable
Certificates representing Fractional Undivided Interests in the Applicable Trust
shall be deemed for all purposes of the Agreement and the Related Pass Through
Trust Agreement, without further signature or action of any party or Applicable
Certificateholder, to be certificates representing the same fractional undivided
interests in the Related Trust and its trust property. By acceptance of its
Applicable Certificate, each Applicable Certificateholder consents to such
assignment, transfer and delivery of the Trust Property to the trustee of the
Related Trust upon the execution and delivery of the Assignment and Assumption
Agreement.
In connection with the occurrence of the event set forth in clause
(B) above, notice of such termination, specifying the Distribution Date upon
which the Applicable Certificateholders may surrender their Applicable
Certificates to the Trustee for payment of the final distribution and
cancellation, shall be mailed promptly by the Trustee to Applicable
Certificateholders not earlier than the 60th day and not later than the 15th day
next preceding such final Distribution Date specifying (A) the Distribution Date
upon which the proposed final payment of the Applicable Certificates will be
made upon presentation and surrender of Applicable Certificates at the office or
agency of the Trustee therein specified, (B) the amount of any such proposed
final payment, and (C) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Applicable Certificates at the office or agency of the
Trustee therein specified. The Trustee shall give such notice to the Registrar
at the time such notice is given to Applicable Certificateholders. Upon
presentation and surrender of the Applicable Certificates in accordance with
such notice, the Trustee shall cause to be distributed to Applicable
Certificateholders such final payments.
In the event that all of the Applicable Certificateholders shall not
surrender their Applicable Certificates for cancellation within six months after
the date specified in the above-mentioned written notice, the Trustee shall give
a second written notice to the remaining Applicable Certificateholders to
surrender their Applicable Certificates for cancellation and receive the final
distribution with respect thereto. No additional interest shall accrue on the
Applicable Certificates after the Distribution Date specified in the first
written notice. In the event that any money held by the Trustee for the payment
of distributions on the Applicable Certificates shall remain unclaimed for two
years (or such lesser time as the Trustee shall be satisfied, after sixty days'
notice from the Company, is one month prior to the escheat period provided under
applicable law) after the final distribution date with respect thereto, the
Trustee shall pay to each Loan Trustee the appropriate amount of money relating
to such Loan Trustee and shall give written notice thereof to the Company.
(b) The provisions of this Section 7.01 supersede and replace the
provisions of Section 11.01 of the Basic Agreement in its entirety, with respect
to the Applicable Trust.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. BASIC AGREEMENT RATIFIED. Except and so far as herein
expressly provided, all of the provisions, terms and conditions of the Basic
Agreement are in all respects ratified and confirmed; and the Basic Agreement
and this Trust Supplement shall be taken, read and construed as one and the same
instrument. All replacements of provisions of, and other modifications of the
Basic Agreement set forth in this Trust Supplement are solely with respect to
the Applicable Trust.
SECTION 8.02. GOVERNING LAW. THE AGREEMENT AND, UNTIL THE TRANSFER
DATE, THE APPLICABLE CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE. THIS SECTION 8.02 SUPERSEDES
AND REPLACES SECTION 12.05 OF THE BASIC AGREEMENT, WITH RESPECT TO THE
APPLICABLE TRUST.
Section 8.03. EXECUTION IN COUNTERPARTS. This Trust Supplement may
be executed in any number of counterparts, each of which shall be an original,
but such counterparts shall together constitute but one and the same instrument.
Section 8.04. INTENTION OF PARTIES. The parties hereto intend that
the Applicable Trust be classified for U.S. federal income tax purposes as a
grantor trust under Subpart E, Part I of Subchapter J of the Internal Revenue
Code of 1986, as amended, and not as a trust or association taxable as a
corporation or as a partnership. Each Applicable Certificateholder and Investor,
by its acceptance of its Applicable Certificate or a beneficial interest
therein, agrees to treat the Applicable Trust as a grantor trust for all U.S.
federal, state and local income tax purposes. The powers granted and obligations
undertaken pursuant to the Agreement shall be so construed so as to further such
intent.
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Trust Supplement to be duly executed by their respective officers thereto duly
authorized, as of the day and year first written above.
CONTINENTAL AIRLINES, INC.
By:
------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee
By:
------------------------
Name:
Title:
EXHIBIT A
FORM OF CERTIFICATE
Certificate
No. ______
[Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch the registered owner hereof,
Cede & Co., has an interest herein.]
CONTINENTAL AIRLINES PASS THROUGH TRUST 2002-1G-2-O
Continental Airlines Pass Through Certificate, Series 0000-0X-0-X
Xxxxxxxx Date: March 25, 2002
Final Maturity Date: August 15, 2013
Evidencing A Fractional Undivided Interest In The Continental Airlines
Pass Through Trust 2002-1G-2-O, The Property Of Which Shall Include
Certain Equipment Notes Each Secured By An Aircraft Owned By Continental
Airlines, Inc.
$[_____________] Fractional Undivided Interest
representing .0000000000% of the Trust per $1,000 face amount
THIS CERTIFIES THAT __________, for value received, is the
registered owner of a $___________ (___________________________________________
DOLLARS) Fractional Undivided Interest in the Continental Airlines Pass Through
Trust 2002-1G-2-O (the "TRUST") created by Wilmington Trust Company, as trustee
(the "TRUSTEE"), pursuant to a Pass Through Trust Agreement, dated as of
September 25, 1997 (the "BASIC AGREEMENT"), between the Trustee and Continental
--------------------------------
This legend to appear on Book-Entry Certificates to be deposited with the
Depository Trust Company.
Airlines, Inc., a Delaware corporation (the "COMPANY"), as supplemented by Trust
Supplement No. 2002-1G-2-O thereto, dated as of March 25, 2002 (the "TRUST
SUPPLEMENT" and, together with the Basic Agreement, the "AGREEMENT"), between
the Trustee and the Company, a summary of certain of the pertinent provisions of
which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the
Agreement. This Certificate is one of the duly authorized Certificates
designated as "Continental Airlines Pass Through Certificates, Series
2002-1G-2-O" (herein called the "CERTIFICATES"). This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement.
By virtue of its acceptance hereof, the holder of this Certificate (the
"CERTIFICATEHOLDER" and, together with all other holders of Certificates issued
by the Trust, the "CERTIFICATEHOLDERS") assents to and agrees to be bound by the
provisions of the Agreement and the Intercreditor Agreement. The property of the
Trust includes certain Equipment Notes and all rights of the Trust to receive
payments under the Intercreditor Agreement, the Policy and the Primary Liquidity
Facility (the "TRUST PROPERTY"). Each issue of the Equipment Notes is secured
by, among other things, a security interest in an Aircraft owned by the Company.
The Certificates represent Fractional Undivided Interests in the
Trust and the Trust Property and have no rights, benefits or interest in respect
of any other separate trust established pursuant to the terms of the Basic
Agreement for any other series of certificates issued pursuant thereto.
Subject to and in accordance with the terms of the Agreement and the
Intercreditor Agreement, from funds then available to the Trustee, there will be
distributed on February 15, May 15, August 15 and November 15 of each year (a
"REGULAR DISTRIBUTION DATE") commencing May 15, 2002, to the Person in whose
name this Certificate is registered at the close of business on the 15th day
preceding the Regular Distribution Date, an amount in respect of the Scheduled
Payments on the Equipment Notes due on such Regular Distribution Date, the
receipt of which has been confirmed by the Trustee, equal to the product of the
percentage interest in the Trust evidenced by this Certificate and an amount
equal to the sum of such Scheduled Payments. Subject to and in accordance with
the terms of the Agreement and the Intercreditor Agreement, in the event that
Special Payments on the Equipment Notes are received by the Trustee, from funds
then available to the Trustee, there shall be distributed on the applicable
Special Distribution Date, to the Person in whose name this Certificate is
registered at the close of business on the 15th day preceding the Special
Distribution Date, an amount in respect of such Special Payments on the
Equipment Notes, the receipt of which has been confirmed by the Trustee, equal
to the product of the percentage interest in the Trust evidenced by this
Certificate and an amount equal to the sum of such Special Payments so received.
If a Regular Distribution Date or Special Distribution Date is not a Business
Day, distribution shall be made on the immediately following Business Day with
the same force and effect as if made on such Regular Distribution Date or
Special Distribution Date and no interest shall accrue during the intervening
period. The Trustee shall mail notice of each Special Payment and the Special
Distribution Date therefor to the Certificateholder of this Certificate.
Distributions on this Certificate will be made by the Trustee by
check mailed to the Person entitled thereto, without presentation or surrender
of this Certificate or the making of any notation hereon, except that with
respect to Certificates registered on the Record Date in the name of a Clearing
Agency (or its nominee), such distribution shall be made by wire transfer.
Except as otherwise provided in the Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after notice mailed by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency of the Trustee specified
in such notice.
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, the Company or the Trustee or any
affiliate thereof. The Certificates are limited in right of payment, all as more
specifically set forth on the face hereof and in the Agreement. All payments or
distributions made to Certificateholders under the Agreement shall be made only
from the Trust Property and only to the extent that the Trustee shall have
sufficient income or proceeds from the Trust Property to make such payments in
accordance with the terms of the Agreement. Each Certificateholder of this
Certificate, by its acceptance hereof, agrees that it will look solely to the
income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, privileges, and duties evidenced hereby. A copy of the Agreement
may be examined during normal business hours at the principal office of the
Trustee, and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Certificateholders under the Agreement at any time
by the Company and the Trustee with the consent of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust. Any such consent by the
Certificateholder of this Certificate shall be conclusive and binding on such
Certificateholder and upon all future Certificateholders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Certificateholders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations set
forth therein, the transfer of this Certificate is registrable in the Register
upon surrender of this Certificate for registration of transfer at the offices
or agencies maintained by the Trustee in its capacity as Registrar, or by any
successor Registrar, duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Registrar, duly executed by
the Certificateholder hereof or such Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate Fractional Undivided Interest in the
Trust will be issued to the designated transferee or transferees.
Under certain circumstances set forth in Section 7.01 of the Trust
Supplement, all of the Trustee's right, title and interest to the Trust Property
may be assigned, transferred and delivered to the Related Trustee of the Related
Trust pursuant to the Assignment and Assumption Agreement. Upon the
effectiveness of such Assignment and Assumption Agreement (the "TRANSFER"), the
Trust shall be terminated, the Certificateholders shall receive beneficial
interests in the Related Trust in exchange for their interests in the Trust
equal to their respective beneficial interests in the Trust, the Certificates
representing Fractional Undivided Interests in the Trust shall be deemed for all
purposes of the Agreement and the Related Pass Through Trust Agreement to be
certificates representing the same fractional undivided interests in the Related
Trust and its trust property. Each Certificateholder, by its acceptance of this
Certificate or a beneficial interest herein, agrees to be bound by the
Assignment and Assumption Agreement and subject to the terms of the Related Pass
Through Trust Agreement as a Certificateholder thereunder. From and after the
Transfer, unless and to the extent the context otherwise requires, references
herein to the Trust, the Agreement and the Trustee shall constitute references
to the Related Trust, the Related Pass Through Trust Agreement and trustee of
the Related Trust, respectively.
The Certificates are issuable only as registered Certificates
without coupons in minimum denominations of $1,000 Fractional Undivided Interest
and integral multiples thereof, except that one Certificate may be issued in a
different denomination. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust, as requested by the
Certificateholder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee shall require payment of a sum sufficient to cover
any tax or governmental charge payable in connection therewith.
Each Certificateholder and Investor, by its acceptance of this
Certificate or a beneficial interest herein, agrees to treat the Trust as a
grantor trust for all U.S. federal, state and local income tax purposes.
The Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Trustee, the Registrar, nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and
the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
Any Person acquiring or accepting this Certificate or an interest
herein will, by such acquisition or acceptance, be deemed to have represented
and warranted to and for the benefit of the Company that either: (i) the assets
of an employee benefit plan subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or of a plan subject to Section 4975
of the Internal Revenue Code of 1986, as amended (the "Code"), have not been
used to purchase this Certificate or an interest herein or (ii) the purchase and
holding of this Certificate or an interest herein are exempt from the prohibited
transaction restrictions of ERISA and the Code pursuant to one or more
prohibited transaction statutory or administrative exemptions.
THE AGREEMENT AND, UNTIL THE TRANSFER, THIS CERTIFICATE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS. THE RELATED PASS THROUGH TRUST
AGREEMENT AND, FROM AND AFTER THE TRANSFER, THIS CERTIFICATE SHALL BE GOVERNED
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
CONTINENTAL AIRLINES PASS THROUGH
TRUST 2002-1G-2-O
By: WILMINGTON TRUST COMPANY,
as Trustee
By:
------------------------
Name:
Title:
FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
WILMINGTON TRUST COMPANY,
as Trustee
By:
------------------------
Name:
Title:
EXHIBIT B
[DTC Letter of Representations]
EXHIBIT C
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
Continental Airlines Pass Through Trust 2002-1G-2-O
ASSIGNMENT AND ASSUMPTION AGREEMENT (2002-1G-2), dated ________ __,
____ (the "ASSIGNMENT AGREEMENT"), between Wilmington Trust Company, a Delaware
banking corporation ("WTC"), not in its individual capacity except as expressly
provided herein, but solely as trustee under the Pass Through Trust Agreement
dated as of September 25, 1997 (as amended or modified from time to time, the
"BASIC AGREEMENT"), as supplemented by the Trust Supplement No. 2002-1G-2-O
dated as of March 25, 2002 (the "TRUST SUPPLEMENT" and together with the Basic
Agreement, the "AGREEMENT") in respect of the Continental Airlines Pass Through
Trust 2002-1G-2-O (the "ASSIGNOR"), and Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity except as expressly provided
herein, but solely as trustee under the Basic Agreement as supplemented by the
Trust Supplement No. 2002-1G-2-S dated as of March 25, 2002 (the "NEW
SUPPLEMENT", and, together with the Basic Agreement, the "NEW AGREEMENT") in
respect of the Continental Airlines Pass Through Trust 2002-1G-2-S (the
"ASSIGNEE").
W I T N E S S E T H:
WHEREAS, the parties hereto desire to effect on the date hereof (the
"TRANSFER DATE") (a) the transfer by the Assignor to the Assignee of all of the
right, title and interest of the Assignor in, under and with respect to, among
other things, the Trust Property and each of the documents listed in Schedule I
hereto (the "SCHEDULED DOCUMENTS") and (b) the assumption by the Assignee of the
obligations of the Assignor (i) under the Scheduled Documents and (ii) in
respect of the Applicable Certificates issued under the Agreement; and
WHEREAS, the Scheduled Documents permit such transfer upon
satisfaction of certain conditions heretofore or concurrently herewith being
complied with;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto do hereby agree as
follows (capitalized terms used herein without definition having the meaning
ascribed thereto in the Agreement):
1. ASSIGNMENT. The Assignor does hereby sell, assign, convey,
transfer and set over unto the Assignee as of the Transfer Date all of its
present and future right, title and interest in, under and with respect to the
Trust Property and the Scheduled Documents and each other contract, agreement,
document or instrument relating to the Trust Property or the Scheduled Documents
(such other contracts, agreements, documents or instruments, together with the
Scheduled Documents, to be referred to as the "ASSIGNED DOCUMENTS"), and any
proceeds therefrom, together with all documents and instruments evidencing any
of such right, title and interest.
2. ASSUMPTION. The Assignee hereby assumes for the benefit of the
Assignor and each of the parties listed in Schedule II hereto (collectively, the
"BENEFICIARIES") all of the duties and obligations of the Assignor, whenever
accrued, pursuant to the Assigned Documents and hereby confirms that it shall be
deemed a party to each of the Assigned Documents to which the Assignor is a
party and shall be bound by all the terms thereof (including the agreements and
obligations of the Assignor set forth therein) as if therein named as the
Assignor. Further, the Assignee hereby assumes for the benefit of the Assignor
and the Beneficiaries all of the duties and obligations of the Assignor under
the Outstanding Applicable Certificates and hereby confirms that the Applicable
Certificates representing Fractional Undivided Interests under the Agreement
shall be deemed for all purposes of the Agreement and the New Agreement to be
certificates representing the same fractional undivided interests under the New
Agreement equal to their respective beneficial interests in the trust created
under the Agreement.
3. EFFECTIVENESS. This Assignment Agreement shall be effective upon
the execution and delivery hereof by the parties hereto, and each Applicable
Certificateholder, by its acceptance of its Applicable Certificate or a
beneficial interest therein, agrees to be bound by the terms of this Assignment
Agreement.
4. PAYMENTS. The Assignor hereby covenants and agrees to pay over to
the Assignee, if and when received following the Transfer Date, any amounts
(including any sums payable as interest in respect thereof) paid to or for the
benefit of the Assignor that, under Section 1 hereof, belong to the Assignee.
5. FURTHER ASSURANCES. The Assignor shall, at any time and from time
to time, upon the request of the Assignee, promptly and duly execute and deliver
any and all such further instruments and documents and take such further action
as the Assignee may reasonably request to obtain the full benefits of this
Assignment Agreement and of the rights and powers herein granted. The Assignor
agrees to deliver any Applicable Certificates, and all Trust Property, if any,
then in the physical possession of the Assignor, to the Assignee.
6. REPRESENTATIONS AND WARRANTIES. (a) The Assignee represents and
warrants to the Assignor and each of the Beneficiaries that:
(i) it has all requisite power and authority and legal right to
enter into and carry out the transactions contemplated hereby and to carry
out and perform the obligations of the "Pass Through Trustee" under the
Assigned Documents;
(ii) on and as of the date hereof, the representations and
warranties of the Assignee set forth in Section 7.15 of the Basic
Agreement and Section 5.04 of the New Supplement are true and correct.
(b) The Assignor represents and warrants to the Assignee that:
(i) it is duly incorporated, validly existing and in good standing
under the laws of the State of Delaware and has the full trust power,
authority and legal right under the laws of the State of Delaware and the
United States pertaining to its trust and fiduciary powers to execute and
deliver this Assignment Agreement;
(ii) the execution and delivery by it of this Assignment Agreement
and the performance by it of its obligations hereunder have been duly
authorized by it 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 Assignment Agreement constitutes the legal, valid and
binding obligations of it 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.
7. GOVERNING LAW. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
8. COUNTERPARTS. This Assignment Agreement may be executed in any
number of counterparts, all of which together shall constitute a single
instrument. It shall not be necessary that any counterpart be signed by both
parties so long as each party shall sign at least one counterpart.
9. THIRD PARTY BENEFICIARIES. The Assignee hereby agrees, for the
benefit of the Beneficiaries, that its representations, warranties and covenants
contained herein are also intended to be for the benefit of each Beneficiary,
and each Beneficiary shall be deemed to be an express third party beneficiary
with respect thereto, entitled to enforce directly and in its own name any
rights or claims it may have against such party as such beneficiary.
IN WITNESS WHEREOF, the parties hereto, through their respective
officers thereunto duly authorized, have duly executed this Assignment Agreement
as of the day and year first above written.
ASSIGNOR:
WILMINGTON TRUST COMPANY,
not in its individual capacity
except as expressly provided
herein, but solely as trustee
under the Pass Through Trust
Agreement and Trust Supplement
in respect of the Continental
Airlines Pass Through Trust
2002-1G-2-O
By:
---------------------------
Title:
ASSIGNEE:
WILMINGTON TRUST COMPANY,
not in its individual capacity
except as expressly provided
herein, but solely as trustee
under the Pass Through Trust
Agreement and Trust Supplement
in respect of the Continental
Airlines Pass Through Trust
2002-1G-2-S
By:
---------------------------
Title:
Schedule I
Schedule of Assigned Documents
(1) Intercreditor Agreement dated as of March 25, 2002 among the
Trustee, the Other Trustees, the Primary Liquidity Provider, the primary
liquidity provider and the above-cap liquidity provider relating to the Class
G-1 Certificates, the Policy Provider and the Subordination Agent.
(2) Escrow and Paying Agent Agreement (Class G-2) dated as of March
25, 2002 among the Escrow Agent, the Underwriters, the Trustee and the Paying
Agent.
(3) Note Purchase Agreement dated as of March 25, 2002 among the
Company, the Trustee, the Other Trustees, the Depositary, the Escrow Agent, the
Paying Agent and the Subordination Agent.
(4) Deposit Agreement (Class G-2) dated as of March 25, 2002 between
the Escrow Agent and the Depositary.
(5) Each of the Operative Agreements (as defined in the
Participation Agreement for each Aircraft) in effect as of the Transfer Date.
Schedule II
Schedule of Beneficiaries
Wilmington Trust Company, not in its individual capacity but solely as
Subordination Agent
Wilmington Trust Company, not in its individual capacity but solely as Paying
Agent
Landesbank Hessen-Thuringen Girozentrale, as Primary Liquidity Provider
Ambac Assurance Corporation, as Policy Provider
Credit Suisse First Boston, New York Branch, as Depositary
Continental Airlines, Inc.
Credit Suisse First Boston Corporation, as Underwriter
X.X. Xxxxxx Securities Inc., as Underwriter
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, as Underwriter
Xxxxxxx Xxxxx Barney Inc., as Underwriter
Xxxxxx Xxxxxxx & Co. Incorporated, as Underwriter
Xxxxx Fargo Bank Northwest, National Association, as Escrow Agent
Each of the other parties to the Assigned Documents
