EXECUTION COPY
TRUST SUPPLEMENT No. 1997-4B-O
Dated October 23, 1997
between
WILMINGTON TRUST COMPANY
as Trustee,
and
CONTINENTAL AIRLINES, INC.
to
PASS THROUGH TRUST AGREEMENT
Dated as of September 25, 1997
$134,937,000
Continental Airlines Pass Through Trust 1997-4B-O
6.90% Continental Airlines
Pass Through Certificates,
Series 1997-4B-O
This Trust Supplement No. 1997-4B-O, dated as of October 23, 1997
(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 either (i) through separate leveraged lease transactions, in which case
the Company will lease such Aircraft (collectively, the "LEASED AIRCRAFT") or
(ii) through separate secured loan transactions, in which case the Company will
own such Aircraft (collectively, the "OWNED AIRCRAFT");
WHEREAS, in the case of each Leased Aircraft, each Owner Trustee,
acting on behalf of the corresponding Owner Participant, will issue pursuant to
an Indenture, on a non-recourse basis, Equipment Notes in order to finance a
portion of its purchase price of such Leased Aircraft;
WHEREAS, 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 this
Continental Airlines Pass Through Trust 1997-4B-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 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 Note Purchase
Agreement, upon or shortly following delivery of an Aircraft, the Trustee on
behalf of the Applicable Trust, using funds withdrawn under the Escrow
Agreement, 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
"6.90% Continental Airlines Pass Through Certificates, Series 1997-4B-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 pursuant to Sections 3.03, 3.04
and 3.06 of the Basic Agreement) is $134,937,000.
(b) The Regular Distribution Dates with respect to any payment of
Scheduled Payments means January 2 and July 2 of each year, commencing on
January 2, 1998, 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
each Owner Participant and the Company that either (i) the assets of an
employee benefit plan subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or of a plan subject to
Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code"), have not been used to purchase Applicable Certificates or an
interest therein or (ii) the purchase and holding of Applicable
Certificates 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 Applicable Certificates are subject to the Intercreditor
Agreement, the Deposit Agreement, and the Escrow Agreement.
(g) The Applicable Certificates will have the benefit of the
Liquidity Facility.
(h) The Responsible Party is the Company.
(i) The particular "sections of the Note Purchase Agreement", for
purposes of clause (3) of Section 7.07 of the Basic Agreement, are Section
8.1 (with respect to Owned Aircraft) and Section 9.1 (with respect to
Leased Aircraft) of each Note Purchase Agreement.
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:
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 entered into in accordance
with the Note Purchase Agreement.
AIRCRAFT PURCHASE AGREEMENT: Has the meaning specified in the Note
Purchase Agreement.
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.
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.
BOEING: Means The Boeing Company.
BUSINESS DAY: Means any day other than a Saturday, a Sunday or a day
on which commercial banks are required or authorized to close in Houston,
Texas, New York, New York, Salt Lake City, Utah or, so long as any
Applicable Certificate is outstanding, the city and state in which the
Trustee or any Loan Trustee maintains its Corporate Trust Office or
receives and disburses funds.
CUT-OFF DATE: Means the earlier of (a) the Delivery Period
Termination Date and (b) the date on which a Triggering Event occurs.
DELIVERY DATE: Has the meaning specified in the Note Purchase
Agreement.
DELIVERY NOTICE: Has the meaning specified in the Note Purchase
Agreement.
DELIVERY PERIOD TERMINATION DATE: Means the earlier of (a) December
31, 1998, 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, May 31, 1999 (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 Note Purchase Agreement.
DEPOSITS: Has the meaning specified in the Deposit Agreement.
DEPOSIT AGREEMENT: Means the Deposit Agreement dated as of October
23, 1997 relating to the Applicable Certificates between the Depositary
and the Escrow Agent, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
DEPOSITARY: Means Credit Suisse First Boston, New York branch.
DISTRIBUTION DATE: Means any Regular Distribution Date or Special
Distribution Date as the context requires.
ESCROW AGENT: Means, initially, First Security Bank, National
Association, and any replacement or successor therefor appointed in
accordance with the Escrow Agreement.
ESCROW AGREEMENT: Means the Escrow and Paying Agent Agreement dated
as of October 23, 1997 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 July 2, 2018.
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 Note Purchase Agreement 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 October 23, 1997 among the Trustee, the Other Trustees, the Liquidity
Providers, the liquidity providers relating to the Certificates issued
under (and as defined in) each of the Other Agreements, and Wilmington
Trust Company, as Subordination Agent and as trustee thereunder, as
amended, supplemented or otherwise modified from time to time in
accordance with its terms.
INVESTORS: Means the Underwriters together with all subsequent
beneficial owners of the Applicable Certificates.
LEASE: Means, with respect to each Leased Aircraft, the lease
between an Owner Trustee, as the lessor, and the Company, as the lessee,
referred to in the related Indenture, as such lease may be amended,
supplemented or otherwise modified in accordance with its terms.
LEASED AIRCRAFT: Has the meaning specified in the third recital to
this Trust Supplement.
LIQUIDITY FACILITIES: Means, initially, each of the Revolving Credit
Agreements dated as of October 23, 1997 relating to the Applicable
Certificates, between a Liquidity Provider and Wilmington Trust Company as
Subordination Agent, as agent and trustee for the Applicable Trust, and,
from and after the replacement of such agreement pursuant to the
Intercreditor Agreement, the replacement liquidity facility therefor, in
each case as amended, supplemented or otherwise modified from time to time
in accordance with their respective terms.
LIQUIDITY PROVIDERS: Means, initially, ABN AMRO Bank N.V., acting
through its Chicago branch, and Westdeutsche Landesbank Girozentrale,
acting through its New York branch, and any replacements or successors
therefor appointed in accordance with the Intercreditor Agreement.
NEW AIRCRAFT: Has the meaning specified in the Note Purchase
Agreement.
NOTE DOCUMENTS: With respect to any Equipment Note, means (i) the
Indenture and the Participation Agreement relating to such Equipment Note,
and (ii) in the case of any Equipment Note related to a Leased Aircraft,
the Lease relating to such Leased Aircraft.
NOTE PURCHASE AGREEMENT: Means the Note Purchase Agreement dated as
of October 23, 1997 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.
NOTICE OF PURCHASE WITHDRAWAL: Has the meaning specified in the
Deposit Agreement.
OTHER AGREEMENTS: Means (i) the Basic Agreement as supplemented by
Trust Supplement No. 1997-4A-O dated the date hereof relating to
Continental Airlines Pass Through Trust 1997-4A-O and (ii) the Basic
Agreement as supplemented by Trust Supplement No. 1997-4C-O dated the date
hereof relating to Continental Airlines Pass Through Trust 1997-4C-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
1997-4A-O and the Continental Airlines Pass Through Trust 1997-4C-O, each
created on the date hereof.
OWNED AIRCRAFT: Has the meaning specified in the third recital to
this Trust Supplement.
OWNER PARTICIPANT: With respect to any Equipment Note relating to a
Leased Aircraft, means the "Owner Participant" as referred to in the
Indenture pursuant to which such Equipment Note is issued and any
permitted successor or assign of such Owner Participant; and OWNER
PARTICIPANTS at any time of determination means all of the Owner
Participants thus referred to in the Indentures.
OWNER TRUSTEE: With respect to any Equipment Note relating to a
Leased Aircraft, means the "Owner Trustee", as referred to in the
Indenture pursuant to which such Equipment Note is issued, not in its
individual capacity but solely as trustee; and OWNER TRUSTEES means all of
the Owner Trustees party to any of the Indentures.
PARTICIPATION AGREEMENT: Means each Participation Agreement to be
entered into by the Trustee pursuant to the Note Purchase Agreement, as
the same may be amended, supplemented or otherwise modified in accordance
with its terms.
POOL BALANCE: Means, as of any date, (i) the original aggregate face
amount of the Applicable Certificates less (ii) the aggregate amount of
all payments made in respect of such Applicable Certificates or in respect
of Deposits other than payments made in respect of interest or premium
thereon or reimbursement of any costs or expenses incurred in connection
therewith. The Pool Balance as of any Distribution Date shall be computed
after giving effect to any special distribution with respect to unused
Deposits, payment of principal of the Equipment Notes or payment with
respect to other Trust Property and the distribution thereof to be made on
that date.
POOL FACTOR: Means, as of any Distribution Date, the quotient
(rounded to the seventh decimal place) computed by dividing (i) the Pool
Balance by (ii) the original aggregate face amount of the Applicable
Certificates. The Pool Factor as of any Distribution Date shall be
computed after giving effect to any special distribution with respect to
unused Deposits, payment of principal of the Equipment Notes or other
Trust Property and the distribution thereof to be made on that date.
PROSPECTUS SUPPLEMENT: Means the Prospectus Supplement dated October
16, 1997 relating to the offering of the Certificates.
RELATED PASS THROUGH TRUST AGREEMENT: Means the Basic Agreement as
supplemented by the Trust Supplement No. 1997-4B-S dated the date hereof
relating to the Continental Airlines Pass Through Trust 1997-4B-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 1997-4B-S,
to be formed under the Related Pass Through Trust Agreement.
RELATED TRUSTEE: Means the trustee under the Related Pass Through
Trust Agreement.
SPECIAL REDEMPTION PREMIUM: Means the premium payable by the Company
in respect of the Final Withdrawal pursuant to the Note Purchase
Agreement.
SPECIAL PAYMENT: Means any payment (other than a Scheduled Payment)
in respect of, or any proceeds of, any Equipment Note or Trust Indenture
Estate (as defined in each Indenture) or Special Redemption Premium.
SUBSTITUTE AIRCRAFT: Has the meaning specified in the Note Purchase
Agreement.
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 Note Purchase
Agreement and the Liquidity Facilities, including, without limitation, all
rights to receive certain payments thereunder, and all monies paid to the
Trustee on behalf of the Applicable Trust pursuant to the Intercreditor
Agreement or the Liquidity Facilities, 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.
UNDERWRITERS: Means, collectively, Xxxxxx Xxxxxxx & Co.
Incorporated, Credit Suisse First Boston Corporation, Chase Securities
Inc. and Salomon Brothers Inc.
UNDERWRITING AGREEMENT: Means the Underwriting Agreement dated
October 16, 1997 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
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 3.01. ADDITIONS TO ARTICLE IV OF THE BASIC Agreement. In
addition to the provisions of Article IV of the Basic Agreement, the following
provisions shall apply to the Applicable Trust:
(a) Upon the payment of Special Redemption Premium to the Trustee
under the Note Purchase Agreement, the Trustee, upon receipt thereof,
shall immediately deposit the aggregate amount of such Special Redemption
Premium in the Special Payments Account;
(b) The distribution of amounts of Special Redemption Premium as
provided for in Section 4.02(b) of the Basic Agreement shall be on the
Special Distribution Date with respect to such Special Payment or as soon
thereafter as the Trustee has confirmed receipt of the related Special
Redemption Premium;
(c) In the event of the payment of a Special Redemption Premium by
the Company to the Trustee under the Note Purchase Agreement, the notice
provided for in Section 4.02(c) of the Basic Agreement shall be mailed,
together with the notice by the Escrow Paying Agent under Section 2.06 of
the Escrow Agreement, not less than 15 days prior to the Special
Distribution Date for such amount, which Special Distribution Date shall
be the Final Withdrawal Date; and
(d) The last sentence of the first paragraph of Section 4.02(c) of
the Basic Agreement shall apply equally if the amount of Special
Redemption Premium, if any, has not ben calculated at the time the Trustee
mails notice of a Special Payment.
Section 3.02. 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, including any Special Redemption Premium, reflecting
in part the information provided by the Escrow Paying Agent under the Escrow
Agreement). Such statement shall set forth (per $1,000 face amount Applicable
Certificate as to (ii), (iii), (iv) and (v) below) the following information:
(i) the aggregate amount of funds distributed on such Distribution
Date under the Agreement and under the Escrow Agreement, indicating the
amount allocable to each source;
(ii) the amount of such distribution under the Agreement allocable
to principal and the amount allocable to premium (including the Special
Redemption 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 Deposits; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Applicable Certificates registered in the name
of a Clearing Agency, on the Record Date prior to each Distribution Date, the
Trustee will request from such Clearing Agency a securities position listing
setting forth the names of all Clearing Agency Participants reflected on such
Clearing Agency's books as holding interests in the Applicable Certificates on
such Record Date. On each Distribution Date, the Trustee will mail to each such
Clearing Agency Participant the statement described above and will make
available additional copies as requested by such Clearing Agency Participant for
forwarding to holders of interests in the Applicable Certificates.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the Trustee
shall furnish to each Person who at any time during such calendar year was an
Applicable Certificateholder of record a statement containing the sum of the
amounts determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and
(a)(v) above for such calendar year or, in the event such Person was an
Applicable Certificateholder of record during a portion of such calendar year,
for such portion of such year, and such other items as are readily available to
the Trustee and which an Applicable Certificateholder shall reasonably request
as necessary for the purpose of such Applicable Certificateholder's preparation
of its federal income tax returns. Such statement and such other items shall be
prepared on the basis of information supplied to the Trustee by the Clearing
Agency Participants and shall be delivered by the Trustee to such Clearing
Agency Participants to be available for forwarding by such Clearing Agency
Participants to the holders of interests in the Applicable Certificates in the
manner described in Section 3.02(a) of this Trust Supplement.
(c) Promptly following (i) the Delivery Period Termination Date, if
there has been any change in the information set forth in clauses (x), (y) and
(z) below from that set forth in page S-51 of the Prospectus Supplement, and
(ii) 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.
(d) This Section 3.02 supersedes and replaces Section 4.03 of the
Basic Agreement.
ARTICLE IV
DEFAULT
Section 4.01. PURCHASE RIGHTS OF CERTIFICATEHOLDERS. (a) At any time
after the occurrence and during the continuance of a Triggering Event, each
Applicable Certificateholder shall have the right to purchase, for the purchase
price set forth in Section 6.01(b) of the Basic Agreement, all, but not less
than all, of the Class A Certificates upon ten days' written notice to the Class
A Trustee and each other Applicable Certificateholder, provided that (i) if
prior to the end of such ten day period any other Applicable Certificateholder
notifies such purchasing Applicable Certificateholder that such other Applicable
Certificateholder wants to participate in such purchase, then such other
Applicable Certificateholder may join with the purchasing Applicable
Certificateholder to purchase all, but not less than all, of the Class A
Certificates pro rata based on the Fractional Undivided Interest in the
Applicable Trust held by each such Applicable Certificateholder and (ii) if
prior to the end of such ten-day period any other Applicable Certificateholder
fails to notify the purchasing Applicable Certificateholder of such other
Applicable Certificateholder's desire to participate in such a purchase, then
such other Applicable Certificateholder shall lose its right to purchase the
Class A Certificates pursuant to this Section 4.01(a); and
(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) each Class C Certificateholder shall have the right (which shall
not expire upon any purchase of the Class A Certificates pursuant to
clause (a) above) to purchase all, but not less than all, of the
Applicable Certificates and the Class A Certificates upon ten days'
written notice to the Trustee, the Class A Trustee and each other Class C
Certificateholder, PROVIDED that (A) if prior to the end of such ten-day
period any other Class C Certificateholder notifies such purchasing Class
C Certificateholder that such other Class C Certificateholder wants to
participate in such purchase, then such other Class C Certificateholder
may join with the purchasing Class C Certificateholder to purchase all,
but not less than all, of the Applicable Certificates and the Class A
Certificates pro rata based on the Fractional Undivided Interest in the
Class C Trust held by each such Class C Certificateholder and (B) if prior
to the end of such ten-day period any other Class C Certificateholder
fails to notify the purchasing Class C Certificateholder of such other
Class C Certificateholder's desire to participate in such a purchase, then
such other Class C Certificateholder shall lose its right to purchase the
Applicable Certificates pursuant to this Section 4.01(b).
(ii) each Class D Certificateholder shall have the right (which
shall not expire upon any purchase of the Applicable Certificates pursuant
to clause (a) above or clause (i) above) to purchase all, but not less
than all, of the Applicable Certificates, the Class A Certificates and the
Class C Certificates upon ten days' written notice to the Trustee, the
Class A Trustee, the Class C Trustee and each other Class D
Certificateholder, PROVIDED that (A) if prior to the end of such ten-day
period any other Class D Certificateholder notifies such purchasing Class
D Certificateholder that such other Class D Certificateholder wants to
participate in such purchase, then such other Class D Certificateholder
may join with the purchasing Class D Certificateholder to purchase all,
but not less than all, of the Applicable Certificates, the Class A
Certificates and the Class C Certificates pro rata based on the Fractional
Undivided Interest in the Class D Trust held by each such Class D
Certificateholder and (B) if prior to the end of such ten-day period any
other Class D Certificateholder fails to notify the purchasing Class D
Certificateholder of such other Class D Certificateholder's desire to
participate in such a purchase, then such other Class D Certificateholder
shall lose its right to purchase the Applicable Certificates pursuant to
this Section 4.01(b).
The purchase price with respect to the Applicable Certificates shall
be equal to the Pool Balance of the Applicable Certificates, together with
accrued and unpaid interest thereon to the date of such purchase, without
premium, but including any other amounts then due and payable to the Applicable
Certificateholders under this Agreement, the Intercreditor Agreement, the Escrow
Agreement or any Note Document or on or in respect of the Applicable
Certificates; PROVIDED, HOWEVER, that (i) if such purchase occurs after the
record date specified in Section 2.03(b) of the Escrow Agreement relating to the
distribution of unused Deposits and accrued and unpaid interest thereunder, such
purchase price shall be reduced by the aggregate amount of unused Deposits and
interest to be distributed under the Escrow Agreement (which deducted amounts
shall remain distributable to, and may be retained by, the Applicable
Certificateholder as of such Record Date) and (ii) if such purchase occurs after
a Record Date, such purchase price shall be reduced by the amount to be
distributed hereunder on the related Distribution Date (which deducted amounts
shall remain distributable to, and may be retained by, the Applicable
Certificateholder as of such Record Date); PROVIDED FURTHER 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 purchasing, pursuant to the terms of this Agreement and the
Other Agreements, the Applicable Certificates, the Class A Certificates and the
Class C Certificates which are senior to the securities held by such
purchaser(s). Each payment of the purchase price of the Applicable Certificates
referred to in the first sentence hereof shall be made to an account or accounts
designated by the Trustee and each such purchase shall be subject to the terms
of this Section 4.01(b). Each Applicable Certificateholder agrees by its
acceptance of its Applicable Certificate that it will, subject to Section 3.04
of the Basic Agreement, upon payment from such Class C Certificateholder(s) or
Class D Certificateholder(s), as the case may be, of the purchase price set
forth in the first sentence of this paragraph, 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 this Agreement, the
Escrow Agreement, the Deposit Agreement, the Intercreditor Agreement, the
Liquidity Facilities, 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 this Agreement, the Escrow Agreement, the Deposit Agreement, the
Intercreditor Agreement, the Liquidity Facilities, the Note Documents and all
such Applicable Certificates and Escrow Receipts. 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, the terms, "Class A Certificate",
"Class A Trustee", "Class C Certificateholder", "Class C Trust", "Class C
Certificate""Class C Trustee", "Class D Certificateholder" and "Class D Trust",
shall have the respective meanings assigned to such terms in the Intercreditor
Agreement.
(c) Except as expressly set forth above, this Section 4.01
supersedes and replaces Section 6.01(b) of the Basic Agreement.
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 Note Purchase Agreement 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
equalling in the aggregate the amount set forth, with respect to the Applicable
Trust, in Schedule II 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 Note Purchase Agreement. 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.
(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 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 Owner Trustee or the Company, as the case may be, issuing such Equipment
Notes, all as shall be described in the Delivery Notice. The Trustee shall (as
and when specified in such Delivery Notice), subject to the conditions set forth
in Section 2 of the Note Purchase Agreement, 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 Note Purchase Agreement, 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 Note Purchase Agreement 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. 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 (which are inapplicable to the 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.
Section 5.02. WITHDRAWAL OF DEPOSITS. If any Deposits remain
outstanding on the Business Day next succeeding the Cut-off Date, (i) (A) the
Trustee shall give the Escrow Agent notice that the Trustee's obligation to
purchase Equipment Notes under the Note Purchase Agreement 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") and (B) the Trustee will make a demand upon the
Company under the Note Purchase Agreement for an amount equal to the Special
Redemption Premium, such payment to be made on the Final Withdrawal Date.
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 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.
(b) Except as herein otherwise provided, 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 Basic
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 Basic
Agreement, upon the effectiveness thereof, 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 Escrow Agreement
and the Note Documents to which it is a party and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Trust Supplement, the Escrow Agreement and the Note Documents to which it
is a party;
(b) the execution, delivery and performance by the Trustee of this
Trust Supplement, the Escrow Agreement and the Note Documents to which it
is a party (i) will not violate any provision of any United States federal
law or the law of the state of the United States where it is located
governing the banking and trust powers of the Trustee or any order, writ,
judgment, or decree of any court, arbitrator or governmental authority
applicable to the Trustee or any of its assets, (ii) will not violate any
provision of the articles of association or by-laws of the Trustee, and
(iii) will not violate any provision of, or constitute, with or without
notice or lapse of time, a default under, or result in the creation or
imposition of any lien on any properties included in the Trust Property
pursuant to the provisions of any mortgage, indenture, contract, agreement
or other undertaking to which it is a party, which violation, default or
lien could reasonably be expected to have an adverse effect on the
Trustee's performance or ability to perform its duties hereunder or
thereunder or on the transactions contemplated herein or therein;
(c) the execution, delivery and performance by the Trustee of this
Trust Supplement, the Escrow Agreement and the Note Documents to which it
is a party will not require the authorization, consent, or approval of,
the giving of notice to, the filing or registration with, or the taking of
any other action in respect of, any governmental authority or agency of
the United States or the state of the United States where it is located
regulating the banking and corporate trust activities of the Trustee; and
(d) this Trust Supplement, the Escrow Agreement and the Note
Documents to which it is a party have been, or will be, as applicable,
duly executed and delivered by the Trustee and constitute, or will
constitute, as applicable, the legal, valid and binding agreements of the
Trustee, enforceable against it in accordance with their respective terms;
PROVIDED, HOWEVER, that enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and (ii) general principles of
equity.
Section 5.05. TRUSTEE LIENS. The Trustee in its individual capacity
agrees, in addition to the agreements contained in Section 7.17 of the Basic
Agreement, that it will at its own cost and expense promptly take any action as
may be necessary to duly discharge and satisfy in full any Trustee's Liens on or
with respect to the Trust Property which is attributable to the Trustee in its
individual capacity and which is unrelated to the transactions contemplated by
the Intercreditor Agreement or the Note Purchase Agreement.
ARTICLE VI
SUPPLEMENTAL AGREEMENTS
Section 6.01. SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF APPLICABLE
CERTIFICATEHOLDERS. Under the terms of, and subject to the limitations contained
in, Section 9.01 of the Basic Agreement, the Company may (but will not be
required to), and the Trustee (subject to Section 9.03 of the Basic Agreement)
shall, at the Company's request, at any time and from time to time, enter into
one or more agreements supplemental to the Escrow Agreement, the Note Purchase
Agreement or the Deposit Agreement, for any of the purposes set forth in clauses
(1) through (9) of such Section 9.01, except that (a) clause (2) and (3) of such
Section 9.01 shall 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 Note Purchase Agreement and (b) clause (4) of such
Section 9.01 shall be deemed to include corrections or supplements to provisions
of the Escrow Agreement, the Note Purchase Agreement or the Deposit Agreement
which may be defective or inconsistent with any other provision of this
Agreement or contained in any agreement referred to in such clause (4) and the
curing of any ambiguity or the modification of any other provision with respect
to matters or questions arising under the Escrow Agreement, the Note Purchase
Agreement or the Deposit Agreement.
Section 6.02. SUPPLEMENTAL AGREEMENTS WITH CONSENT OF APPLICABLE
CERTIFICATEHOLDERS. The provisions of Section 9.02 of the Basic Agreement shall
apply to agreements or amendments for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Escrow
Agreement, the Deposit Agreement or the Note Purchase Agreement to the extent
applicable to the Applicable Certificateholders approving such agreement or
amendment or modifying in any manner the rights and obligations of such
Applicable Certificateholders under the Escrow Agreement, the Deposit Agreement
or the Note Purchase 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.
ARTICLE VII
TERMINATION OF TRUST
Section 7.01. TERMINATION OF THE TRUST. 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 this Agreement and the disposition of all property held as part
of the Trust Property; PROVIDED, HOWEVER, that in no event shall the Applicable
Trust continue beyond one hundred ten (110) years following the date of the
execution of this Trust Supplement.
Upon the earlier of (i) the first Business Day following December
31, 1998, 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):
(a) upon the execution and delivery thereof by the
parties thereto in accordance with the terms of this 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;
(b) upon the execution and delivery of the Assignment
and Assumption Agreement in accordance with the terms of this
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;
(c) the Related Trust is not required to be registered
as an investment company under the Investment Company Act of 1940,
as amended;
(d) 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
(e) neither the execution and delivery of the Assignment
and Assumption Agreement in accordance with the terms of this
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 this 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 related Owner
Trustees, the Owner Participants and the Company.
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.
Section 8.02. GOVERNING LAW. THIS AGREEMENT AND THE APPLICABLE
CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE.
Section 8.03. EXECUTION IN COUNTERPARTS. This Trust Supplement may
be executed in any number of counterparts, each of which shall be an original,
but such counterparts shall together constitute but one and the same instrument.
Section 8.04. INTENTION OF PARTIES. The parties hereto intend that
the Applicable Trust be classified for U.S. federal income tax purposes as a
grantor trust under Subpart E, Part I of Subchapter J of the Internal Revenue
Code of 1986, as amended, and not as a trust or association taxable as a
corporation or as a partnership. Each Applicable Certificateholder and Investor,
by its acceptance of its Applicable Certificate or a beneficial interest
therein, agrees to treat the Applicable Trust as a grantor trust for all U.S.
federal, state and local income tax purposes. The powers granted and obligations
undertaken pursuant to the Agreement shall be so construed so as to further such
intent.
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Trust Supplement to be duly executed by their respective officers thereto duly
authorized, as of the day and year first written above.
CONTINENTAL AIRLINES, INC.
By:_____________________________________
Name: Xxxxxx Xxxxxxxx
Title: Vice President
WILMINGTON TRUST COMPANY,
as Trustee
By:_____________________________________
Name:
Title:
EXHIBIT A
FORM OF CERTIFICATE
[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 1997-4B-O
6.90% Continental Airlines Pass Through Certificate, Series 1997-4B-O
Issuance Date: October 23, 1997
Final Expected Distribution Date: January 2, 2017
Evidencing A Fractional Undivided Interest In The
Continental Airlines Pass Through Trust 1997-4B-O,
The Property Of Which Includes Certain Equipment
Notes Each Secured By An Aircraft Leased To Or
Owned By Continental Airlines, Inc.
Certificate
No. _________ $______________ Fractional Undivided Interest representing
0.____% 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
1997-4B-O (the "TRUST") created by Wilmington Trust Company, as trustee (the
________________
This legend to appear on Book-Entry Certificates to be deposited with the
Depository Trust Company.
"Trustee"), pursuant to a Pass Through Trust Agreement, dated as of September
25, 1997 (the "BASIC AGREEMENT"), between the Trustee and Continental Airlines,
Inc., a Delaware corporation (the "Company"), as supplemented by Trust
Supplement No. 1997-4B-O thereto, dated as of October 23, 1997 (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 "6.90% Continental Airlines Pass Through Certificates, Series
1997-4B-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 Certificateholder of this Certificate
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 and any Liquidity Facilities (the "TRUST PROPERTY"). Each issue of the
Equipment Notes is secured by, among other things, a security interest in an
Aircraft leased to or 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 each January 2 and July 2 (a "Regular Distribution Date")
commencing January 2, 1998, 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 or 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, proceeds, 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 each Owner Participant and the Company
that either: (i) the assets of an employee benefit plan subject to Title I of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or of
a plan subject to Section 4975 of the Internal Revenue Code of 1986, as amended
(the "CODE"), have not been used to purchase this Certificate or an interest
herein or (ii) the purchase and holding of this Certificate or interest herein
are exempt from the prohibited transaction restrictions of ERISA and the Code
pursuant to one or more prohibited transaction statutory or administration
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 1997-4B-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 1997-4B
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated _____________, 199__ (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. 1997-4B-O, dated
October 23 , 1997 (the "TRUST SUPPLEMENT" and together with the Basic Agreement,
the "AGREEMENT") in respect of the Continental Airlines Pass Through Trust
1997-4B-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. 1997-4B-S dated October 23, 1997 (the "NEW SUPPLEMENT", and,
together with the Basic Agreement, the "NEW AGREEMENT") in respect of the
Continental Airlines Pass Through Trust 1997-4B-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 right 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 1997-4B-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 1997-4B-S
By:_____________________________________
Title:
Schedule I
Schedule of Assigned Documents
(1) Intercreditor Agreement dated as of October 23, 1997 among the
Trustee, the Other Trustees, the Liquidity Providers, the liquidity provider, if
any, relating to the Certificates issued under (and as defined in) each of the
Other Agreements and the Subordination Agent.
(2) Escrow and Paying Agent Agreement (Class B) dated as of October
23, 1997 among the Escrow Agent, the Underwriters, the Trustee and the Paying
Agent.
(3) Note Purchase Agreement dated as of October 23, 1997 among the
Company, the Trustee, the Other Trustees, the Depositary, the Escrow Agent, the
Paying Agent and the Subordination Agent.
(4) Deposit Agreement (Class B) dated as of October 23, 1997 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
ABN AMRO Bank N.V., acting through its Chicago branch, and Westdeutsche
Landesbank Girozentrale, acting through its New York branch, as Liquidity
Providers
Continental Airlines, Inc.
Xxxxxx Xxxxxxx & Co. Incorporated, as Underwriter
Credit Suisse First Boston Corporation, as Underwriter
Chase Securities Inc., as Underwriter
Salomon Brothers Inc, as Underwriter
First Security Bank, National Association, as Escrow Agent
Each of the other parties to the Assigned Documents
