EXHIBIT 4.17
DECLARATION OF TRUST
DECLARATION OF TRUST, dated as of October 18, 2001, between Continental
Airlines, Inc., a Delaware corporation, as sponsor (the "Sponsor"), Bank One
Delaware, Inc., a Delaware corporation, as Delaware trustee (the "Delaware
Trustee"), and Xxxxxxx Xxxxxxxx and Xxxxxxx X. Xxxxxx, as administrative
trustees (the "Administrative Trustees" and collectively with the Delaware
Trustee, the "Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"Continental Airlines Finance Trust III", in which name the Trustees, or the
Sponsor to the extent provided herein, may conduct the business of the Trust,
make and execute contracts, and xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. The Trustees hereby acknowledge receipt of such amount
from the Sponsor, which amount shall constitute the initial trust estate. The
Trustees hereby declare that they will hold the trust estate for the Sponsor. It
is the intention of the parties hereto that the Trust created hereby constitute
a business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.
Sections 3801 et seq. (the "Business Trust Act"), and that this document
constitute the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust in the office
of the Secretary of State of the State of Delaware in the form attached hereto.
The Trust is hereby established by the Sponsor and the Trustees for the purposes
of (i) issuing preferred securities ("Preferred Securities") representing
undivided beneficial interests in the assets of the Trust in exchange for cash
and investing the proceeds thereof in debt securities of the Sponsor, (ii)
issuing and selling common securities ("Common Securities") representing
undivided beneficial interests in the assets of the Trust to the Sponsor in
exchange for cash and investing the proceeds thereof in additional debt
securities of the Sponsor and (iii) engaging in such other activities as are
necessary, convenient or incidental thereto.
3. The Sponsor and the Trustees will enter into an amended and restated
Declaration of Trust, satisfactory to each such party, to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and the Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Declaration of Trust, the
Trustees shall not have any duty or obligation hereunder or with respect to the
trust estate, except as otherwise required by applicable law or as may be
necessary to obtain, prior to such execution and delivery, any licenses,
consents or approvals required by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, (i) to prepare and file a Registration
Statement (including the Prospectus included therein and any Prospectus
Supplement relating thereto) relating to the Preferred Securities meeting the
requirements of the Securities Act of 1933, as amended (the "1933 Act"), and
such other forms or filings as may be required by the 1933 Act, the Securities
Exchange Act of 1934, as amended, or the Trust Indenture Act of 1939, as
amended, in each case relating to the Preferred Securities of the Trust; (ii) to
file and execute on behalf of the Trust, such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process and
other papers and documents that shall be necessary or desirable to register or
establish the exemption from registration of the Preferred Securities of the
Trust under the securities or "Blue
Sky" laws of such jurisdictions as the Sponsor, on behalf of the Trust, may deem
necessary or desirable; (iii) to execute and file an application, and all other
applications, statements, certificates, agreements and other instruments that
shall be necessary or desirable, to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National Market for listing or quotation
of the Preferred Securities of the Trust; (iv) to execute and deliver letters or
documents to, or instruments for filing with, a depository relating to the
Preferred Securities of the Trust; and (v) to execute, deliver and perform on
behalf of the Trust one or more underwriting agreements, purchase agreements,
dealer manager agreements, escrow agreements and other related agreements
providing for or relating to the sale of the Preferred Securities of the Trust.
It is hereby acknowledged and agreed that in connection with any execution,
filing or document referred to in clauses (i)-(iii) above, (A) any
Administrative Trustee (or his attorneys-in-fact and agents or the Sponsor as
permitted herein) is authorized on behalf of the Trust to file and execute such
document on behalf of the Trust and (B) the Delaware Trustee shall not be
required to join in any such filing or execute on behalf of the Trust any such
document unless required by the rules and regulations of the New York Stock
Exchange or any other national stock exchange or the Nasdaq National Market or
state securities or blue sky laws, and in such case only to the extent so
required.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided, however, that the number of Trustees shall in no
event be less than three (3); and provided, further, however, that to the extent
required by the Business Trust Act, one Trustee shall either be a natural person
who is a resident of the State of Delaware or, if not a natural person, an
entity that has its principal place of business in the State of Delaware and
meets any other requirements imposed by applicable law. Subject to the
foregoing, the Sponsor is entitled to appoint or remove without cause any
Trustee at any time. Any Trustee may resign upon 30 days prior notice to the
Sponsor; provided, however, that the Delaware Trustee may resign immediately
upon notice to the Sponsor if the Delaware Trustee is required to join in any
filing or execute on behalf of the Trust any document pursuant to the provisions
of paragraph 4 hereof and, upon giving such notice, the Delaware Trustee shall
not be required to join in any such filing or execute on behalf of the Trust any
such document; provided, further, however, that no resignation of the Delaware
Trustee shall be effective until a successor Delaware Trustee has been appointed
and has accepted such appointment by instrument executed by such successor
Delaware Trustee and delivered to the Trust, the Sponsor and the resigning
Delaware Trustee.
7. To the fullest extent permitted by applicable law, the Sponsor
agrees to indemnify (i) the Delaware Trustee, (ii) any affiliate of the Delaware
Trustee, and (iii) any officers, directors, shareholders, members, partners,
employees, representatives, nominees, custodians or agents of the Delaware
Trustee (each of the persons or entities in (i) through (iii) being referred to
as an "Indemnified Person") for, and to hold each Indemnified Person harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against, or investigating, any claim or liability in connection with the
exercise or
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performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this paragraph 7 shall survive the termination of this
Declaration. The Delaware Trustee shall not have any of the powers or duties of
the trustees set forth herein, except as required under the Business Trust Act.
The Delaware Trustee shall be a trustee hereunder for the sole and limited
purpose of fulfilling the requirements of Section 3807(a) of the Business Trust
Act.
8. The Trust may terminate without issuing any Trust Securities at the
election of the Sponsor.
9. This Declaration shall be governed by the laws of the State of
Delaware, without regard to conflict of laws principles.
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IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year first above
written.
CONTINENTAL AIRLINES, INC.
as Sponsor
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Vice President and General Counsel
BANK ONE DELAWARE, INC.,
as Delaware Trustee
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx, as Trustee
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, as Trustee
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