TRUST SUPPLEMENT No. 2001-2D-O
Dated July 31, 2001
between
WILMINGTON TRUST COMPANY
as Trustee,
and
CONTINENTAL AIRLINES, INC.
to
PASS THROUGH TRUST AGREEMENT
Dated as of September 25, 1997
$200,000,000
Continental Airlines Pass Through Trust 2001-2D-O
7.568% Continental Airlines
Pass Through Certificates,
Series 2001-2D-O
This Trust Supplement No. 2001-2D-O, dated as of July 31, 2001
(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, under the terms of seven series of Continental Airlines
pass through certificates previously issued and designated Series 1997-4,
1998-1, 1998-3, 1999-1, 1999-2, 2000-1 and 2000-2 (the "PRIOR SERIES"), the
Company is entitled to sell Series D Equipment Notes secured by aircraft
financed under each Prior Series;
WHEREAS, the Company has purchased the aircraft listed on Schedule I
hereto (the "OWNED AIRCRAFT") prior to the date of this Trust Supplement (the
"ISSUANCE DATE") utilizing the proceeds of the sale of secured equipment notes
acquired by the pass through trustees under the Prior Series;
WHEREAS, the Company has obtained commitments from Boeing pursuant
to the Aircraft Purchase Agreement for the delivery of the sixteen aircraft
listed in Schedule II hereto (together with any aircraft substituted therefor in
accordance with the Aircraft Purchase Agreement prior to the delivery thereof,
the "ELIGIBLE AIRCRAFT"), and the Company expects to purchase after the Issuance
Date utilizing the proceeds of (i) the sale of secured equipment notes to be
acquired by the pass through trustees under the 2000-2 Note Purchase Agreement
and (ii) the Series D Equipment Notes purchased pursuant to the Agreement two of
the ten Boeing 737-824 aircraft and two of the six Boeing 737-924 aircraft
included in the Eligible Aircraft (such aircraft to be financed hereunder, the
"NEW AIRCRAFT");
WHEREAS, in the case of each Owned Aircraft, the Company has issued
pursuant to an Indenture, on a recourse basis, Equipment Notes to finance a
portion of the purchase price of such Owned Aircraft, and will issue on the
Issuance Date pursuant to such Indenture, on a recourse basis, Series D
Equipment Notes;
WHEREAS, in the case of each New Aircraft or Substitute Aircraft,
the Company will issue pursuant to an Indenture, on a recourse basis, Equipment
Notes, including Series D Equipment Notes, to finance a portion of the purchase
price of such New Aircraft or Substitute Aircraft;
WHEREAS, the Trustee hereby declares the creation of this
Continental Airlines Pass Through Trust 2001-2D-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 Series D 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 Series
D Equipment Notes as the New Aircraft or Substitute 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
Series D Equipment Notes to be issued with respect to any New Aircraft or
Substitute Aircraft 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, (i) in
the case of any Owned Aircraft, on the Issuance Date or (ii) in the case of any
New Aircraft or Substitute Aircraft, upon the financing of such New Aircraft or
Substitute Aircraft, the Trustee on behalf of the Applicable Trust, using a
portion of the proceeds of the sale of the Applicable Certificates, in the case
of any Owned Aircraft, or using funds withdrawn under the Escrow Agreement, in
the case of any New Aircraft or Substitute Aircraft, shall purchase one or more
Series D Equipment Notes with respect to such Aircraft 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 Series
D 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
"7.568% Continental Airlines Pass Through Certificates, Series 2001-2D-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,
3.05 and 3.06 of the Basic Agreement) is $200,000,000.
(b) The Regular Distribution Dates with respect to any payment of
Scheduled Payments means June 1 and December 1 of each year, commencing on
December 1, 2001, until payment of all of the Scheduled Payments to be made
under the Series D 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
Agreements, the Deposit Agreement and the Escrow Agreement.
(h) The Applicable Certificates are not entitled to the benefits of
a Liquidity Facility.
(i) The Responsible Party is the Company.
(j) 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.
(k) 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 Owned Aircraft and each of the New
Aircraft or the Substitute Aircraft in respect of which a Participation
Agreement is or is to be, 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 Series D 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, 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.
COMPANY: Has the meaning specified in the first paragraph of this
Trust Supplement.
CONTROLLING PARTY: Has the meaning specified in the applicable
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 with respect to
any Prior Series.
DELIVERY NOTICE: Has the meaning specified in the NPA.
DELIVERY PERIOD TERMINATION DATE: Means the earlier of (a) February 1,
2002, or, if the Series D Equipment Notes relating to all of the New
Aircraft (or Substitute Aircraft in lieu thereof) have not been purchased
by the Applicable Trust 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 1, 2002 (provided that, if a labor strike occurs or
continues at Boeing after November 28, 2000 on or prior to either or both
of such dates referred to in this clause (a), such date or dates on or
following November 28, 2000 shall be extended by adding thereto the number
of days that such strike continued in effect after November 28, 2000), and
(b) the date on which Series D Equipment Notes issued with respect to all
of the New Aircraft (or Substitute Aircraft in lieu thereof) have been
purchased by the Applicable Trust in accordance with the NPA.
DEPOSIT AGREEMENT: Means the Deposit Agreement dated as of the
Issuance Date relating to the Applicable Certificates between the
Depositary and the Escrow Agent, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms.
DEPOSITARY: Means Credit Suisse First Boston, a banking institution
organized under the laws of Switzerland, acting through its New York
Branch.
DEPOSITS: Has the meaning specified in the Deposit Agreement.
DISTRIBUTION DATE: Means any Regular Distribution Date or Special
Distribution Date as the context requires.
ELIGIBLE AIRCRAFT: Has the meaning specified in the recitals hereto.
EQUIPMENT NOTES: Means all of the equipment notes issued under the
Indentures.
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 the Issuance Date relating to the Applicable Certificates, among the
Escrow Agent, the Escrow Paying Agent, the Trustee and the Underwriters, as
the same may be amended, supplemented or otherwise modified from time to
time in accordance with its terms.
ESCROW PAYING AGENT: Means the Person acting as paying agent under the
Escrow Agreement.
ESCROW RECEIPT: Means the receipt substantially in the form annexed to
the Escrow Agreement representing a fractional undivided interest in the
funds held in escrow thereunder.
FINAL MATURITY DATE: Means December 1, 2006.
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 "Indenture" as defined in the Intercreditor
Agreement for any Prior Series.
INTERCREDITOR AGREEMENT: Means, for each Prior Series, the
Intercreditor Agreement for such Prior Series as listed on Schedule III to
the NPA, as amended by the Intercreditor Amendment applicable to such Prior
Series, as further amended, supplemented or otherwise modified from time to
time in accordance with its terms.
INTERCREDITOR AMENDMENT: Means, for each Prior Series, the Amendment
No. 1 to Intercreditor Agreement for such Prior Series dated as of the
Issuance Date among the Company, the Trustee, the other trustees party
thereto, the liquidity providers relating to the pass through certificates
issued under such Prior Series and Wilmington Trust Company, as
subordination agent and as trustee under the Intercreditor Agreement for
such Prior Series.
INVESTORS: Means the Underwriters together with all subsequent
beneficial owners of the Applicable Certificates.
ISSUANCE DATE: Has the meaning specified in the recitals hereto.
LEASED AIRCRAFT INDENTURE: Means each "Leased Aircraft Indenture" as
defined in the Intercreditor Agreement for any Prior Series.
NEW AIRCRAFT: Has the meaning specified in the recitals hereto.
NOTE DOCUMENTS: Means the Series D Equipment Notes and, with respect
to any such Series D Equipment Note, the Indenture and the Participation
Agreement relating to such Series D Equipment Note.
NOTICE OF PURCHASE WITHDRAWAL: Has the meaning specified in the
Deposit Agreement.
NPA: Means the Note Purchase Agreement dated as of July 31, 2001 among
the Trustee, the Company, the Escrow Agent, the Escrow Paying Agent and
Wilmington Trust Company, as subordination agent under each of the
Intercreditor Agreements, providing for, among other things, the purchase
of Series D Equipment Notes by the Trustee on behalf of the Trust, as the
same may be further amended, supplemented or otherwise modified from time
to time, in accordance with its terms.
OWNED AIRCRAFT: Has the meaning specified in the recitals hereto.
OWNED AIRCRAFT INDENTURE: Means each "Owned Aircraft Indenture" as
defined in the Intercreditor Agreement for any Prior Series.
PA AMENDMENT: Has the meaning specified in the NPA.
PARTICIPATION AGREEMENT: Means (i) in the case of each Owned Aircraft,
the Participation Agreement entered into prior to the Issuance Date
relating to such Owned Aircraft, as amended by the related PA Amendment
entered into pursuant to the NPA, as the same may be further amended,
supplemented or otherwise modified in accordance with its terms, and (ii)
in the case of each New Aircraft or Substitute Aircraft, a Participation
Agreement to be entered into after the Issuance Date by the Trustee
pursuant to the NPA, as the same may be amended, supplemented or otherwise
modified in accordance with its terms.
POOL BALANCE: Means, as of any date, (i) the original aggregate face
amount of the Applicable Certificates 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 Series D 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 Series D Equipment Notes or payments with respect to
other Trust Property and the distribution thereof to be made on that date.
PRIOR SERIES: Has the meaning specified in the recitals hereto.
PROSPECTUS SUPPLEMENT: Means the final Prospectus Supplement dated
July 13, 2001 relating to the offering of the Applicable Certificates.
PTC EVENT OF DEFAULT: Means, with respect to any Prior Series, "PTC
Event of Default" as defined in the Intercreditor Agreement for such Prior
Series.
RELATED PASS THROUGH TRUST AGREEMENT: Means the Basic Agreement as
supplemented by the Trust Supplement No. 2001-2D-S dated the date hereof
relating to the Continental Airlines Pass Through Trust 2001-2D-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 2001-2D-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.
SENIOR CERTIFICATES: Has the meaning specified in Section 4.01(a) of
this Trust Supplement.
SENIOR TRUST AGREEMENTS: Has the meaning specified in Section 4.01(a)
of this Trust Supplement.
SERIES D EQUIPMENT NOTES: Has the meaning specified in the NPA.
SPECIAL PAYMENT: Means any payment (other than a Scheduled Payment) in
respect of, or any proceeds of, any Equipment Note, Trust Indenture Estate
(as defined in each Leased Aircraft Indenture) or Collateral (as defined in
each Owned Aircraft Indenture).
SUBSTITUTE AIRCRAFT: Has the meaning specified in the NPA.
TRANSFER DATE: Has the meaning specified in Section 7.01 of this Trust
Supplement.
TRIGGERING EVENT: Means, with respect to any Prior Series, "Triggering
Event" as defined in the Intercreditor Agreement for such Prior Series.
TRUST PROPERTY: Means (i) subject to the applicable Intercreditor
Agreement, each Series D Equipment Note 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
applicable Intercreditor Agreement, any proceeds from the sale by the
Trustee pursuant to Article VI of the Basic Agreement of any Series D
Equipment Note and (iii) all rights of the Applicable Trust and the
Trustee, on behalf of the Applicable Trust, under the Intercreditor
Agreements, the Escrow Agreement and the NPA, 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 Agreements, PROVIDED that rights with respect to the
Deposits or under the Escrow Agreement, except for the right to direct
withdrawals for the purchase of Series D 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.
2000-2 NOTE PURCHASE AGREEMENT: Has the meaning specified in the NPA.
UNDERWRITERS: Means Xxxxxx Xxxxxxx & Co. Incorporated and Credit
Suisse First Boston Corporation.
UNDERWRITING AGREEMENT: Means the Underwriting Agreement dated July
13, 2001 among the Underwriters, the Company and the Depositary, as the
same may be amended, supplemented or otherwise modified from time to time
in accordance with its terms.
ARTICLE III
STATEMENTS TO CERTIFICATEHOLDERS
Section 3.01. STATEMENTS TO APPLICABLE CERTIFICATEHOLDERS. (a) On
each Distribution Date, the Trustee will include with each distribution to
Applicable Certificateholders of a Scheduled Payment or Special Payment, as the
case may be, a statement setting forth the information provided below (in the
case of a Special Payment, reflecting in part the information provided by the
Escrow Paying Agent under the Escrow Agreement). Such statement shall set forth
(per $1,000 face amount Applicable Certificate as to (ii), (iii), (iv) and (v)
below) the following information:
(i) the aggregate amount of funds distributed on such Distribution
Date under the Agreement and under the Escrow Agreement, indicating the
amount allocable to each source;
(ii) the amount of such distribution under the Agreement allocable
to principal and the amount allocable to premium, if any;
(iii) the amount of such distribution under the Agreement allocable
to interest;
(iv) the amount of such distribution under the Escrow Agreement
allocable to interest;
(v) the amount of such distribution under the Escrow Agreement
allocable to unused Deposits, if any; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Applicable Certificates registered in the name
of a Clearing Agency, on the Record Date prior to each Distribution Date, the
Trustee will request from such Clearing Agency a securities position listing
setting forth the names of all Clearing Agency Participants reflected on such
Clearing Agency's books as holding interests in the Applicable Certificates on
such Record Date. On each Distribution Date, the Trustee will mail to each such
Clearing Agency Participant the statement described above and will make
available additional copies as requested by such Clearing Agency Participant for
forwarding to holders of interests in the Applicable Certificates.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the Trustee
shall furnish to each Person who at any time during such calendar year was an
Applicable Certificateholder of record a statement containing the sum of the
amounts determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and
(a)(v) above for such calendar year or, in the event such Person was an
Applicable Certificateholder of record during a portion of such calendar year,
for such portion of such year, and such other items as are readily available to
the Trustee and which an Applicable Certificateholder shall reasonably request
as necessary for the purpose of such Applicable Certificateholder's preparation
of its federal income tax returns. Such statement and such other items shall be
prepared on the basis of information supplied to the Trustee by the Clearing
Agency Participants and shall be delivered by the Trustee to such Clearing
Agency Participants to be available for forwarding by such Clearing Agency
Participants to the holders of interests in the Applicable Certificates in the
manner described in Section 3.01(a) of this Trust Supplement.
(c) Promptly following the date of any early redemption or any
default in the payment of principal or interest in respect of, any of the Series
D 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 Balance for the Regular
Distribution Date following such date and (y) the Pool Factor for such Regular
Distribution Date. 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 3.01 supersedes and replaces Section 4.03 of the
Basic Agreement, with respect to the Applicable Trust.
ARTICLE IV
DEFAULT
Section 4.01. PURCHASE RIGHTS OF CERTIFICATEHOLDERS. (a) At any time
after the occurrence and during the continuation of a Triggering Event under a
Prior Series, each Applicable Certificateholder shall have the right (which
shall not expire (i) in the case of the 1998-3, 1999-2, 2000-1 or 2000-2 Prior
Series, (x) upon any purchase of Class A-2 Certificates issued under such Prior
Series pursuant to the Class A-1 Trust Agreement with respect to such Prior
Series, (y) any purchase of Class A-1 Certificates issued under such Prior
Series pursuant to the Class A-2 Trust Agreement with respect to such Prior
Series or (z) any purchase of Class A-1 Certificates issued under such Prior
Series and Class A-2 Certificates issued under such Prior Series pursuant to the
Class B Trust Agreement with respect to such Prior Series, (ii) in the case of
the 1997-4, 1998-1 or 1999-1 Prior Series, any purchase of Class A Certificates
issued under such Prior Series pursuant to the Class B Trust Agreement with
respect to such Prior Series, (iii) in the case of the 1998-3, 1999-2 or 2000-1
Prior Series, (x) any purchase of Class A-1 Certificates issued under such Prior
Series, Class A-2 Certificates issued under such Prior Series, Class B
Certificates issued under such Prior Series and Class C-2 Certificates issued
under such Prior Series pursuant to the Class C-1 Trust Agreement with respect
to such Prior Series or (y) any purchase of Class A-1 Certificates issued under
such Prior Series, Class A-2 Certificates issued under such Prior Series, Class
B Certificates issued under such Prior Series and Class C-1 Certificates issued
under such Prior Series pursuant to the Class C-2 Trust Agreement with respect
to such Prior Series, (iv) in the case of the 1997-4, 1998-1 or 1999-1 Prior
Series, any purchase of Class A Certificates issued under such Prior Series and
Class B Certificates issued under such Prior Series pursuant to the Class C
Trust Agreement with respect to such Prior Series, and (v) in the case of the
2000-2 Prior Series, any purchase of Class A-1 Certificates issued under such
Prior Series, Class A-2 Certificates issued under such Prior Series and Class B
Certificates issued under such Prior Series pursuant to the Class C Trust
Agreement with respect to such Prior Series) to purchase, for the purchase
prices set forth in (I) in the case of the 1997-4, 1998-1 or 1999-1 Prior
Series, the Class A Trust Agreement with respect to such Prior Series, the Class
B Trust Agreement with respect to such Prior Series and the Class C Trust
Agreement with respect to such Prior Series, (II) in the case of the 1998-3,
1999-2 or 2000-1 Prior Series, the Class A-1 Trust Agreement with respect to
such Prior Series, the Class A-2 Trust Agreement with respect such Prior Series,
the Class B Trust Agreement with respect to such Prior Series, the Class C-1
Trust Agreement with respect to such Prior Series and the Class C-2 Trust
Agreement with respect to such Prior Series, or (III) in the case of the 2000-2
Prior Series, the Class A-1 Trust Agreement with respect to such Prior Series,
the Class A-2 Trust Agreement with respect to such Prior Series, the Class B
Trust Agreement with respect to such Prior Series and the Class C Trust
Agreement with respect to such Prior Series (with respect to such Prior Series,
the "SENIOR TRUST AGREEMENTS"), respectively, all, but not less than all (X) in
the case of the 1997-4, 1998-1 or 1999-1 Prior Series, the Class A Certificates
issued under such Prior Series, the Class B Certificates issued under such Prior
Series and the Class C Certificates issued under such Prior Series, (Y) in the
case of the 1998-3, 1999-2 or 2000-1 Prior Series, the Class A-1 Certificates
issued under such Prior Series, the Class A-2 Certificates issued under such
Prior Series, the Class B Certificates issued under such Prior Series, the Class
C-1 Certificates issued under such Prior Series and the Class C-2 Certificates
issued under such Prior Series, or (Z) in the case of the 2000-2 Prior Series,
the Class A-1 Certificates issued under such Prior Series, the Class A-2
Certificates issued under such Prior Series, the Class B Certificates issued
under such Prior Series and the Class C Certificates issued under such Prior
Series (with respect to such Prior Series, the "SENIOR CERTIFICATES") upon ten
days' written notice to the trustees under each of the Senior Trust Agreements
with respect to such Prior Series and each other Applicable Certificateholder,
PROVIDED that (A) 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 Senior Certificates with respect to such Prior Series pro
rata based on the Fractional Undivided Interest in the Applicable Trust held by
each such Applicable Certificateholder and (B) 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 Senior
Certificates with respect to such Prior Series pursuant to this Section 4.01(a).
As used in this Section 4.01 and elsewhere in this Trust Supplement
with respect to any Prior Series, the terms "Class A-1 Certificate", "Class A-1
Trust Agreement", "Class A-2 Certificate", "Class A-2 Trust Agreement", "Class A
Certificate", "Class A Trust Agreement", "Class B Certificate", "Class B Trust
Agreement", "Class C-1 Certificate", "Class C-1 Trust Agreement", "Class C-2
Certificate", "Class C-2 Trust Agreement", "Class C Certificate" and "Class C
Trust Agreement" shall have the respective meanings assigned to such terms in
the Intercreditor Agreement for such Prior Series.
(b) 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 Amendments, the
PA Amendments, 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 and under
the Intercreditor Agreements and the Participation Agreements. Upon the 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 Series D 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 Series D
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 Series D
Equipment Notes to or on behalf of the Company, as issuer of such Series D
Equipment Notes, 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 Series D 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) 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 Series D 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 Series D Equipment Notes
shall equal the principal amount of such Series D Equipment Notes. Amounts
withdrawn from such Deposit or Deposits in excess of the purchase price of the
Series D Equipment Notes or to the extent not applied on the Applicable Delivery
Date to the purchase price of the Series D 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 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. The Trust shall not be
authorized or empowered to purchase any Series D Equipment Note issued pursuant
to the last sentence of the first paragraph of Section 2.02 of any Owned
Aircraft Indenture.
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
Series D 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, each Intercreditor Agreement, each Intercreditor
Amendment, each PA Amendment, 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
Amendments, the Escrow Agreement, the NPA and the Note Documents to which
it is or is to become a party and to perform the Intercreditor Agreements
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Supplement, the Intercreditor Amendments,
the Escrow Agreement, the NPA and the Note Documents to which it is or is
to become a party and the performance by it of the Intercreditor
Agreements;
(b) the execution, delivery and performance by the Trustee of this
Trust Supplement, the Intercreditor Amendments, the Escrow Agreement, the
NPA and the Note Documents to which it is or is to become a party and the
performance by the Trustee of the Intercreditor Agreements (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 Amendments, the Escrow Agreement, the
NPA and the Note Documents to which it is or is to become a party and the
performance by the Trustee of the Intercreditor Agreements 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 Agreements, the
Intercreditor Amendments, 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 Agreements 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, enter into one or more agreements
supplemental to the Escrow Agreement, the NPA or the Deposit Agreement, for any
of the purposes set forth in clauses (1) through (9) of such Section 9.01, and
(without limitation of the foregoing or Section 9.01 of the Basic Agreement) (a)
clauses (2) and (3) of such Section 9.01 shall also be deemed to include the
Company's obligations under (in the case of clause (2)), and the Company's
rights and powers conferred by (in the case of clause (3)), the NPA, and (b)
references in clauses (4), (6) and (7) of such Section 9.01 to "any
Intercreditor Agreement" shall also be deemed to refer to "any Intercreditor
Agreement, the Escrow Agreement, the NPA or the Deposit Agreement".
Section 6.03. SUPPLEMENTAL AGREEMENTS WITH CONSENT OF APPLICABLE
CERTIFICATEHOLDERS. Without limitation of Section 9.02 of the Basic Agreement,
the provisions of Section 9.02 of the Basic Agreement shall apply to agreements
or amendments for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Escrow Agreement, the Deposit
Agreement or the NPA or modifying in any manner the rights and obligations of
the Applicable Certificateholders under the Escrow Agreement, the Deposit
Agreement or the NPA; provided that (a) 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, (b) the reference in clause (2) of such Section 9.02 to "this
Agreement" shall also be deemed to refer to "this Agreement and the related
Intercreditor Agreement" and (c) the reference in clause (3) of such Section
9.02 to "the Intercreditor Agreement" shall be deemed to refer to "any
Intercreditor Agreement".
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 February 1,
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 with respect to any Prior Series 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 the issuer hereof 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 2001-2D-O
7.568% Continental Airlines Pass Through Certificate, Series 0000-0X-X
Xxxxxxxx Date: July 31, 2001
Final Maturity Date: December 1, 2006
Evidencing A Fractional Undivided Interest In The Continental
Airlines Pass Through Trust 2001-2D-O, The Property Of Which
Shall Include Certain Series D Equipment Notes Each Secured By
An Aircraft Owned By Continental Airlines, Inc.
$____________ Fractional Undivided Interest
representing .0005000000% 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
2001-2D-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 Airlines,
Inc., a Delaware corporation (the "COMPANY"), as supplemented by Trust
------------------------
This legend to appear on Book-Entry Certificates accepted as eligible for
deposit at The Depository Trust Company or its Agent as provided in paragraph
(1) of the Letter of Representations.
Supplement No. 2001-2D-O thereto, dated as of July 31, 2001 (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 "7.568% Continental Airlines Pass Through Certificates, Series
2001-2D-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 Agreements. The property of
the Trust includes certain Series D Equipment Notes and all rights of the Trust
to receive payments under the Intercreditor Agreements (the "TRUST PROPERTY").
Each issue of the Series D 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 Agreements, from funds then available to the Trustee, there will
be distributed on each June 1 and December 1 (a "REGULAR DISTRIBUTION DATE")
commencing December 1, 2001, 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 Series
D 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 Agreements, in the event that Special
Payments on the Series D 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 Series D
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 2001-2D-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 2001-2D-O
ASSIGNMENT AND ASSUMPTION AGREEMENT (2001-2D-O), 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.
2001-2D-O dated July 31, 2001 (the "TRUST SUPPLEMENT" and together with the
Basic Agreement, the "AGREEMENT") in respect of the Continental Airlines Pass
Through Trust 2001-2D-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. 2001-2D-S dated July 31, 2001 (the "NEW SUPPLEMENT",
and, together with the Basic Agreement, the "NEW AGREEMENT") in respect of the
Continental Airlines Pass Through Trust 2001-2D-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 2001-2D-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 2001-2D-S
By:
----------------------------------------
Title:
SCHEDULE I
TO ASSIGNMENT AND ASSUMPTION AGREEMENT
SCHEDULE OF ASSIGNED DOCUMENTS
(1) Intercreditor Agreement dated as of October 23, 1997 among
Wilmington Trust Company, not in its individual capacity, but solely as Class A
Trustee, Class B Trustee and Class C Trustee, ABN AMRO Bank N.V., acting through
its Chicago Branch, as a Class A Liquidity Provider, a Class B Liquidity
Provider and a Class C Liquidity Provider, Westdeutsche Landesbank Girozentrale,
as a Class A Liquidity Provider, a Class B Liquidity Provider and a Class C
Liquidity Provider, and Wilmington Trust Company, not in its individual capacity
except as expressly set forth therein, but solely as Subordination Agent and
trustee thereunder, as amended by Amendment No. 1 to Intercreditor Agreement
(1997-4) dated as of July 31, 2001.
(2) Intercreditor Agreement dated as of February 20, 1998 among
Wilmington Trust Company, not in its individual capacity, but solely as Class A
Trustee, Class B Trustee and Class C Trustee, AIG Matched Funding Corp., as
Class A Liquidity Provider, Class B Liquidity Provider and Class C Liquidity
Provider, and Wilmington Trust Company, not in its individual capacity except as
expressly set forth therein, but solely as Subordination Agent and trustee
thereunder, as amended by Amendment No. 1 to Intercreditor Agreement (1998-1)
dated as of July 31, 2001.
(3) Intercreditor Agreement dated as of November 3, 1998 among
Wilmington Trust Company, not in its individual capacity, but solely as Class
A-1 Trustee, Class A-2 Trustee, Class B Trustee, Class C-1 Trustee and Class C-2
Trustee, Westdeutsche Landesbank Girozentrale, acting through its New York
Branch, as Class A-1 Liquidity Provider and Class A-2 Liquidity Provider, Xxxxxx
Xxxxxxx Capital Services, Inc., as Class B Liquidity Provider, Class C-1
Liquidity Provider and Class C-2 Liquidity Provider, and Wilmington Trust
Company, not in its individual capacity except as expressly set forth therein,
but solely as Subordination Agent and trustee thereunder, as amended by
Amendment No. 1 to Intercreditor Agreement (1998-3) dated as of July 31, 2001.
(4) Intercreditor Agreement dated as of February 8, 1999 among
Wilmington Trust Company, not in its individual capacity, but solely as Class A
Trustee, Class B Trustee and Class C Trustee, Bayerische Landesbank
Girozentrale, as Class A Liquidity Provider, Class B Liquidity Provider and
Class C Liquidity Provider, and Wilmington Trust Company, not in its individual
capacity except as expressly set forth therein, but solely as Subordination
Agent and trustee thereunder, as amended by Amendment No. 1 to Intercreditor
Agreement (1999-1) dated as of July 31, 2001.
(5) Intercreditor Agreement dated as of June 17, 1999 among
Wilmington Trust Company, not in its individual capacity, but solely as Class
A-1 Trustee, Class A-2 Trustee, Class B Trustee, Class C-1 Trustee and Class C-2
Trustee, Bayerische Landesbank Girozentrale, as Class A-1 Liquidity Provider,
Class A-2 Liquidity Provider, Class B Liquidity Provider, Class C-1 Liquidity
Provider and Class C-2 Liquidity Provider, and Wilmington Trust Company, not in
its individual capacity except as expressly set forth therein, but solely as
Subordination Agent and trustee thereunder, as amended by Amendment No. 1 to
Intercreditor Agreement (1999-2) dated as of July 31, 2001.
(6) Intercreditor Agreement dated as of March 15, 2000 among
Wilmington Trust Company, not in its individual capacity, but solely as Class
A-1 Trustee, Class A-2 Trustee, Class B Trustee, Class C-1 Trustee and Class C-2
Trustee, Credit Suisse First Boston, New York Branch, as Class A-1 Liquidity
Provider, Class A-2 Liquidity Provider and Class B Liquidity Provider, Xxxxxx
Xxxxxxx Capital Services Inc., as Class C-1 Liquidity Provider and Class C-2
Liquidity Provider, and Wilmington Trust Company, not in its individual capacity
except as expressly set forth therein, but solely as Subordination Agent and
trustee thereunder, as amended by the Acknowledgment and Agreement dated May 12,
2000 among the foregoing parties and Landesbank Hessen-Thuringen Girozentrale,
as replacement Class A-1 Liquidity Provider, replacement Class A-2 Liquidity
Provider and replacement Class B Liquidity Provider, as further amended by
Amendment No. 1 to Intercreditor Agreement (2000-1) dated as of July 31, 2001.
(7) Intercreditor Agreement dated as of November 28, 2000 among
Wilmington Trust Company, not in its individual capacity, but solely as Class
A-1 Trustee, Class A-2 Trustee, Class B Trustee and Class C Trustee, Landesbank
Hessen-Thuringen Girozentrale, as Class A-1 Liquidity Provider, Class A-2
Liquidity Provider, Class B Liquidity Provider and Class C Liquidity Provider,
and Wilmington Trust Company, not in its individual capacity except as expressly
set forth therein, but solely as Subordination Agent and trustee thereunder, as
amended by Amendment No. 1 to Intercreditor Agreement (2000-2) dated as of July
31, 2001.
(8) Escrow and Paying Agent Agreement (Class D) dated as of July 31,
2001 among the Escrow Agent, the Underwriters, the Trustee and the Paying Agent.
(9) Note Purchase Agreement dated as of July 31, 2001 among the
Company, the Trustee, the Depositary, the Escrow Agent, the Paying Agent and the
Subordination Agent.
(10) Deposit Agreement (Class D) dated as of July 31, 2001 between
the Escrow Agent and the Depositary.
(11) Each of the Operative Agreements (as defined in the
Participation Agreement for each Aircraft) in effect as of the Transfer Date.
SCHEDULE II
TO ASSIGNMENT AND ASSUMPTION AGREEMENT
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
Credit Suisse First Boston, New York Branch, as Depositary
Continental Airlines, Inc.
Xxxxxx Xxxxxxx & Co. Incorporated, as Underwriter
Credit Suisse First Boston Corporation, as Underwriter
Xxxxx Fargo Bank Northwest, National Association, as Escrow Agent
Each of the other parties to the Assigned Documents
SCHEDULE I
TO TRUST SUPPLEMENT
OWNED AIRCRAFT
Original Principal
U.S. Amount of Series D
AIRCRAFT MODEL REG. NO. PRIOR SERIES EQUIPMENT NOTES
------------------------ ---------------- ---------------- -------------------------
Boeing 737-524 N11656 1997-4 $ 1,000
Boeing 737-524 N23657 1997-4 1,000
Boeing 737-524 N18658 1997-4 1,000
Boeing 737-524 N15659 1997-4 1,000
Boeing 737-524 N14660 1997-4 1,000
Boeing 737-524 N14664 1998-1 492,617
Boeing 737-524 N13665 1998-1 255,682
Boeing 737-524 N14667 1998-1 7,611,401
Boeing 737-524 N14668 1998-1 7,611,401
Boeing 737-824 N26226 1998-1 1,000
Boeing 757-224 N48127 1998-1 1,745,450
Boeing 757-224 N17128 1998-1 1,000
Boeing 757-224 N29129 1998-1 1,000
Boeing 757-224 N19130 1998-1 1,000
Original Principal
U.S. Amount of Series D
AIRCRAFT MODEL REG. NO. PRIOR SERIES EQUIPMENT NOTES
------------------------ ---------------- ---------------- -------------------------
Boeing 737-724 N33132 1998-1 $ 4,514,833
Boeing 737-724 N29717 1998-3 5,117,659
Boeing 737-724 N13718 1998-3 5,117,659
Boeing 737-724 N17719 1998-3 898,492
Boeing 737-724 N13720 1998-3 898,491
Boeing 737-724 N23721 1998-3 898,491
Boeing 737-724 N27722 1998-3 519,655
Boeing 737-724 N21723 1998-3 519,655
Boeing 737-824 N13227 1998-3 1,093,779
Boeing 757-224 N67134 1998-3 480,732
Boeing 757-224 N41135 1998-3 429,056
Boeing 757-224 N19136 1998-3 379,326
Boeing 777-224ER N77006 1998-3 1,857,715
Boeing 737-724 N27734 1999-1 3,532,443
Boeing 737-824 N14228 1999-1 6,833,055
Boeing 737-824 N26232 1999-1 6,785,724
Boeing 737-824 N14235 1999-1 3,744,342
Boeing 777-224ER N78009 1999-1 26,085,789
Boeing 777-224ER N79011 1999-1 22,753,430
Original Principal
U.S. Amount of Series D
AIRCRAFT MODEL REG. NO. PRIOR SERIES EQUIPMENT NOTES
------------------------ ---------------- ---------------- -------------------------
Boeing 737-724 N24729 1999-2 $ 2,770,644
Boeing 737-724 N16732 1999-2 2,742,152
Boeing 737-724 N14735 1999-2 2,712,617
Boeing 737-724 N24736 1999-2 2,712,617
Boeing 737-824 N35236 1999-2 3,112,834
Boeing 737-824 N14240 1999-2 3,471,816
Boeing 737-824 N18243 1999-2 2,239,527
Boeing 737-824 N27246 1999-2 2,238,278
Boeing 737-824 N14249 1999-2 2,104,868
Boeing 757-224 N34137 1999-2 1,000
Boeing 777-224ER N78013 1999-2 6,038,022
Boeing 737-824 N37252 2000-1 3,858,745
Boeing 737-824 N37253 2000-1 3,951,584
Boeing 737-824 N76254 2000-1 398,837
Boeing 757-224 N17139 2000-1 1,000
Boeing 757-224 N41140 2000-1 1,000
Boeing 757-224 N19141 2000-1 1,000
Boeing 767-424ER N66051 2000-1 8,304,820
Boeing 767-424ER N67052 2000-1 5,733,621
Boeing 767-424ER N59053 2000-1 158,387
Original Principal
U.S. Amount of Series D
AIRCRAFT MODEL REG. NO. PRIOR SERIES EQUIPMENT NOTES
------------------------ ---------------- ---------------- -------------------------
Boeing 737-924 N79402 2000-2 $ 5,393,039
Boeing 737-924 N38403 2000-2 678,463
Boeing 767-224ER N68155 2000-2 7,294,641
Boeing 767-224ER N76156 2000-2 7,224,225
Boeing 767-224ER N67158 2000-2 1,000
Boeing 767-424ER N66056 2000-2 10,673,910
SCHEDULE II
TO TRUST SUPPLEMENT
ELIGIBLE AIRCRAFT AND SCHEDULED DELIVERY MONTHS
Expected Registration Manufacturer's Serial Scheduled Delivery
NEW AIRCRAFT TYPE NUMBER NUMBER MONTH
---------------------- ------------------------- ------------------------- --------------------
Boeing 737-824 N37263 31583 August 2001
Boeing 737-824 N33264 31584 August 2001
Boeing 737-824 N76265 31585 August 2001
Boeing 737-824 N33266 32403 August 2001
Boeing 737-824 N37267 31586 September 2001
Boeing 737-824 N38268 31587 September 2001
Boeing 737-824 N76269 31588 October 2001
Boeing 737-824 N73270 31632 October 2001
Boeing 737-824 N35271 31589 November 2001
Boeing 737-824 N36272 31590 November 2001
Boeing 737-924 N72405 30122 August 2001
Boeing 737-924 N73406 30123 September 2001
Boeing 737-924 N37407 30124 September 2001
Boeing 737-924 N37408 30125 October 2001
Boeing 737-924 N75409 30126 November 2001
Boeing 737-924 N75410 30127 December 2001
