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NOTE PURCHASE AGREEMENT
Dated as of March 25, 2002
Among
CONTINENTAL AIRLINES, INC.,
WILMINGTON TRUST COMPANY,
as Pass Through Trustee under each of the
Pass Through Trust Agreements
WILMINGTON TRUST COMPANY,
as Subordination Agent
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as Escrow Agent
and
WILMINGTON TRUST COMPANY,
as Paying Agent
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INDEX TO NOTE PURCHASE AGREEMENT
Page
SECTION 1. Financing of New Aircraft........................................4
SECTION 2. Conditions Precedent.............................................8
SECTION 3. Representations and Warranties...................................9
SECTION 4. Covenants.......................................................14
SECTION 5. Notices.........................................................18
SECTION 6. Expenses........................................................18
SECTION 7. Further Assurances..............................................19
SECTION 8. Miscellaneous...................................................19
SECTION 9. Governing Law...................................................21
Schedules
Schedule I Eligible Aircraft and Scheduled Delivery Months
Schedule II Trust Supplements
Schedule III Mandatory Document Terms
Schedule IV Mandatory Economic Terms
ANNEX
Annex A Definitions
EXHIBITS
Exhibit A Form of Delivery Notice
Exhibit B Form of Participation Agreement
Exhibit C Form of Indenture
NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT, dated as of March 25, 2002, among
(i)CONTINENTAL AIRLINES, INC., a Delaware corporation (the "COMPANY"),
(ii)WILMINGTON TRUST COMPANY ("WTC"), a Delaware banking corporation, not in its
individual capacity except as otherwise expressly provided herein, but solely as
trustee (in such capacity together with its successors in such capacity, the
"PASS THROUGH TRUSTEE") under each of the four separate Pass Through Trust
Agreements (as defined below), (iii) WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as subordination agent and trustee (in such capacity
together with its successors in such capacity, the "SUBORDINATION AGENT") under
the Intercreditor Agreement (as defined below), (iv) XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION, a national banking association, as Escrow Agent (in such
capacity together with its successors in such capacity, the "ESCROW AGENT"),
under each of the Escrow and Paying Agent Agreements (as defined below) and (v)
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Paying Agent (in
such capacity together with its successors in such capacity, the "PAYING AGENT")
under each of the Escrow and Paying Agent Agreements.
W I T N E S S E T H:
WHEREAS, capitalized terms used but not defined herein shall have
the meanings ascribed to such terms in Annex A hereto;
WHEREAS, the Company has obtained commitments from the Manufacturer
pursuant to the Aircraft Purchase Agreements for the delivery of the ten
aircraft listed in Schedule I hereto (together with any aircraft substituted
therefor in accordance with an Aircraft Purchase Agreement prior to the delivery
thereof, the "ELIGIBLE AIRCRAFT"), and the Company wishes to finance pursuant to
this Agreement a portion of the purchase price of two Boeing 757-324 aircraft,
four of the six Boeing 767-424ER aircraft, and one of the two Boeing 777-224ER
aircraft included in the Eligible Aircraft (such aircraft to be financed
hereunder, the "NEW AIRCRAFT");
WHEREAS, pursuant to the Basic Pass Through Trust Agreement and each
of the Trust Supplements set forth in Schedule II hereto, and concurrently with
the execution and delivery of this Agreement, separate grantor trusts
(collectively, the "PASS THROUGH TRUSTS" and, individually, a "PASS THROUGH
TRUST") have been created to facilitate certain of the transactions contemplated
hereby, including, without limitation, the issuance and sale of pass through
certificates pursuant thereto (collectively, the "CERTIFICATES") to provide for
a portion of the financing of the New Aircraft;
WHEREAS, the Company has entered into the Underwriting Agreement,
dated as of March 11, 2002 (the "UNDERWRITING AGREEMENT") with the Underwriters
named therein (the "UNDERWRITERS") which provides that the Company will cause
the Pass Through Trustee under the Class G-1 Pass Through Trust (the "CLASS G-1
PASS THROUGH TRUSTEE") and the Pass Through Trustee under the Class G-2 Pass
Through Trust (the "CLASS G-2 PASS THROUGH Trustee") to issue and sell the Class
G-1 Certificates and the Class G-2 Certificates, respectively, to the
Underwriters on the Issuance Date;
WHEREAS, the Company has entered into the Certificate Purchase
Agreement, dated as of March 11, 2002 (the "CERTIFICATE PURCHASE AGREEMENT"),
with the purchaser named therein (the "INITIAL PURCHASER") which provides that
the Company will cause the Pass Through Trustee under the Class H Pass Through
Trust (the "CLASS H PASS THROUGH TRUSTEE") and the Pass Through Trustee under
the Class I Pass Through Trust (the "CLASS I PASS THROUGH TRUSTEE") to issue and
sell the Class H Certificates and the Class I Certificates to the Initial
Purchaser on the Issuance Date;
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company, the Subordination Agent, the Escrow Agent and WTC, as
Reference Agent (the "REFERENCE AGENT"), entered into the Reference Agency
Agreement, dated the Issuance Date (the "REFERENCE AGENCY AGREEMENT"), whereby
the Reference Agent will determine LIBOR and calculate the interest rates
payable on the Series G-1 Equipment Notes, Series H Equipment Notes and under
the Deposit Agreement relating to the Class G-1 Pass Through Trust;
WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) the Escrow Agent and the Depositary have entered into two Deposit
Agreements, dated as of the Issuance Date, one each relating to the Class G-1
and Class G-2 Pass Through Trust (together, the "DEPOSIT AGREEMENTS") whereby
the Escrow Agent agreed to direct the Underwriters to make certain deposits
referred to therein on the Issuance Date (the "INITIAL DEPOSITS") and to permit
the applicable Pass Through Trustees to make additional deposits from time to
time thereafter (the Initial Deposits together with such additional deposits are
collectively referred to as the "DEPOSITS") and (ii) the applicable Pass Through
Trustees, Underwriters, Paying Agents and Escrow Agents have entered into two
Escrow and Paying Agent Agreements, dated as of the Issuance Date, one each
relating to the Class G-1 and Class G-2 Pass Through Trust (together, the
"ESCROW AND PAYING AGENT AGREEMENTS"), whereby, among other things, (a) the
Underwriters agreed to deliver an amount equal to the amount of the Initial
Deposits to the Depositary on behalf of the applicable Escrow Agent and (b) the
applicable Escrow Agent, upon the Depositary receiving such amount, agreed to
deliver escrow receipts to be affixed to each Certificate;
WHEREAS, upon receipt of a Delivery Notice with respect to a New
Aircraft, subject to the terms and conditions of this Agreement, the applicable
Pass Through Trustees will enter into the applicable Financing Agreements
relating to such New Aircraft;
WHEREAS, upon the financing of each New Aircraft, (i) the Class G-1
and Class G-2 Pass Through Trustees each will fund its purchase of Equipment
Notes with the proceeds of one or more Deposits withdrawn by the applicable
Escrow Agent under the related Deposit Agreement bearing the same interest rate
as the Certificates issued by the applicable Pass Through Trust and (ii) the
Class H and Class I Pass Through Trustees each will fund its purchase of
Equipment Notes with cash provided by the Initial Purchaser of the Certificates
issued by the applicable Pass Through Trust; and
WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) Landesbank Hessen-Thuringen Girozentrale (the "PRIMARY LIQUIDITY
PROVIDER"), has entered into two revolving credit agreements, one each for the
benefit of the Certificateholders of the Class G-1 and Class G-2 Pass Through
Trusts, in each case with the Subordination Agent, as agent for the Pass Through
Trustee on behalf of each such Pass Through Trust (each such revolving credit
agreement with the Primary Liquidity Provider, a "PRIMARY LIQUIDITY FACILITY"),
(ii) Xxxxxxx Xxxxx Capital Services, Inc. (the "ABOVE-CAP LIQUIDITY PROVIDER")
has entered into the ISDA Master Agreement, the Schedule to such ISDA Master
Agreement and the Class G-1 Above Cap Liquidity Confirmation that supplements
such ISDA Master Agreement, each with the Subordination Agent, on behalf of the
Class G-1 Trustee (the "ABOVE-CAP LIQUIDITY AGREEMENT") and (iii) the Pass
Through Trustees, the Primary Liquidity Provider, the Above-Cap Liquidity
Provider, the Policy Provider (as defined below) and the Subordination Agent
have entered into the Intercreditor Agreement, dated as of the date hereof (the
"INTERCREDITOR AGREEMENT");
WHEREAS, concurrently with the execution and delivery of this
Agreement, Ambac Assurance Corporation (the "POLICY PROVIDER") has entered into
the Insurance and Indemnity Agreement (the "POLICY PROVIDER AGREEMENT"), with
the Company and the Subordination Agent, as agent and trustee for the Class G-1
Pass Through Trustee and the Class G-2 Pass Through Trustee, and the Policy
Provider has issued the two separate certificate guaranty insurance policies
provided for therein, one each for the benefit of the Class G-1 and Class G-2
Certificateholders (the "POLICIES").
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements herein contained and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. FINANCING OF NEW AIRCRAFT. (a) The Company confirms that
it has entered into the Aircraft Purchase Agreements with the Manufacturer
pursuant to which the Company has agreed to purchase, and the Manufacturer has
agreed to deliver, the Eligible Aircraft in the months specified in Schedule I
hereto, all on and subject to terms and conditions specified in the applicable
Aircraft Purchase Agreement. The Company agrees to finance the New Aircraft in
the manner provided herein, all on and subject to the terms and conditions
hereof and of the relevant Financing Agreements.
(b) In furtherance of the foregoing, the Company agrees to give the
parties hereto, the Depositary, the Policy Provider, the Initial Purchaser and
each of the Rating Agencies not less than two Business Days' prior notice
substantially in the form of Exhibit A hereto (a "DELIVERY NOTICE") of the
scheduled delivery date (the "SCHEDULED DELIVERY DATE") (or, in the case of a
substitute Delivery Notice under Section 1(e) or (f) hereof, one Business Day's
prior notice) in respect of each New Aircraft under the applicable Aircraft
Purchase Agreement, which notice shall:
(i) specify the Scheduled Delivery Date of such New Aircraft (which
shall be a Business Day before the Cut-off Date and, except as provided in
Section 1(f) hereof, the date (the "FUNDING DATE") on which the financing
therefor in the manner provided herein shall be consummated);
(ii) instruct each Pass Through Trustee being requested to purchase
Equipment Notes pursuant to such Delivery Notice (the "APPLICABLE PASS THROUGH
TRUSTEES") to enter into the Participation Agreement included in the Financing
Agreements with respect to such Aircraft in such form and at such a time on or
before the Funding Date specified in such Delivery Notice and to perform its
obligations thereunder;
(iii) instruct each of the Class G-1 and Class G-2 Pass Through
Trustees to instruct the relevant Escrow Agent to provide a Notice of Purchase
Withdrawal to the Depositary with respect to the Equipment Notes to be issued to
such Pass Through Trustee in connection with the financing of such New Aircraft
(except in the case of any such financing on the Issuance Date); and
(iv) specify the aggregate principal amount of each series of
Equipment Notes, if any, to be issued, and purchased by the Applicable Pass
Through Trustees, in connection with the financing of such New Aircraft
scheduled to be delivered on such Funding Date (which shall in all respects
comply with the Mandatory Economic Terms).
Notwithstanding the foregoing, in the case of any New Aircraft delivered to the
Company prior to the Issuance Date to be financed pursuant to the terms hereof
on the Issuance Date, the Delivery Notice therefor may be delivered to the
parties hereto on the Issuance Date. The Company shall finance at least one New
Aircraft on the Issuance Date.
(c) Upon receipt of a Delivery Notice, the Applicable Pass Through
Trustees shall, and shall cause the Subordination Agent to, enter into and
perform their obligations under the Participation Agreement specified in such
Delivery Notice, PROVIDED that such Participation Agreement and the Indenture to
be entered into pursuant to such Participation Agreement shall be in the forms
thereof annexed hereto in all material respects and, if modified in any material
respect, as to which prior written consent of the Policy Provider shall have
been obtained and as to which Rating Agency Confirmation shall have been
obtained from each Rating Agency by the Company (to be delivered by the Company
to the Applicable Pass Through Trustees on or before the relevant Funding Date,
it being understood that if the Policy Provider consent and Rating Agency
Confirmation shall have been received with respect to any Financing Agreements
and such Financing Agreements are utilized for subsequent New Aircraft (or
Substitute Aircraft) without material modifications, no additional Policy
Provider consent or Rating Agency Confirmation shall be required); PROVIDED,
HOWEVER, that the relevant Financing Agreements as executed and delivered shall
not vary the Mandatory Economic Terms and shall contain the Mandatory Document
Terms. Notwithstanding the foregoing, an Indenture may be modified to the extent
required for the issuance of Equipment Notes pursuant to Section 4(a)(vi) of
this Agreement, subject to the terms of such Section and Section 9.1(c) or
9.1(d) of the Intercreditor Agreement, whichever may be applicable. The Company
shall pay the reasonable costs and expenses of the Rating Agencies in connection
with obtaining any such Rating Agency Confirmation. With respect to each New
Aircraft, the Company shall cause WTC (or such other person that meets the
eligibility requirements to act as loan trustee under the Indenture) to execute
as Loan Trustee the Financing Agreements relating to such Aircraft to which such
Loan Trustee is intended to be a party, and shall concurrently therewith execute
such Financing Agreements to which the Company is intended to be a party and
perform its respective obligations thereunder. Upon the request of either Rating
Agency or an Initial Purchaser, the Company shall deliver or cause to be
delivered to such Rating Agency or Initial Purchaser a true and complete copy of
each Financing Agreement relating to the financing of each New Aircraft together
with a true and complete set of the closing documentation (including legal
opinions) delivered to the related Loan Trustee, Subordination Agent and Pass
Through Trustee under the related Participation Agreement.
(d) The Company agrees that all Equipment Notes issued pursuant to
any Indenture shall initially be registered in the name of the Subordination
Agent on behalf of the applicable Pass Through Trustee (or, in the case of the
Series J, on behalf of the Pass Through Trustee with respect to the Class J
Certificates).
(e) If after giving any Delivery Notice, there shall be a delay in
the delivery of the Eligible Aircraft referred to therein, or if on the
Scheduled Delivery Date of the Eligible Aircraft the financing thereof in the
manner contemplated hereby shall not be consummated for whatever reason, the
Company shall give the parties hereto, the Depositary, the Policy Provider and
the Initial Purchaser prompt notice thereof. Concurrently with the giving of
such notice of postponement or subsequently, the Company shall give the parties
hereto, the Depositary, the Policy Provider and the Initial Purchaser a
substitute Delivery Notice specifying the date to which delivery and related
financing of such Eligible Aircraft or of another Eligible Aircraft of the same
type in lieu thereof shall have been re-scheduled (which shall be a Business Day
before the Cut-off Date on which the Escrow Agents shall be entitled to withdraw
one or more Deposits under each of the applicable Deposit Agreements to enable
each of the Class G-1 and Class G-2 Pass Through Trustees to fund its purchase
of the related Equipment Notes). Upon receipt of any such notice of
postponement, each Applicable Pass Through Trustee shall comply with its
obligations under Section 5.01 of each of the Trust Supplements and thereafter
the financing of such Eligible Aircraft, as specified in such substitute
Delivery Notice, shall take place on the re-scheduled Delivery Date therefor
(all on and subject to the terms and conditions of the relevant Financing
Agreements) unless further postponed as provided herein.
(f) Anything in this Section 1 to the contrary notwithstanding, the
Company shall have the right to accept delivery of a New Aircraft under the
applicable Aircraft Purchase Agreement on the Delivery Date thereof by
utilization of bridge financing of such New Aircraft and promptly thereafter
give the parties hereto, the Depositary, the Policy Provider and the Initial
Purchaser a Delivery Notice specifying a Funding Date not later than 90 days
after the Delivery Date of such New Aircraft and no later than the Cut-off Date
and otherwise complying with the provisions of Section 1(b) hereof. All other
terms and conditions of this Note Purchase Agreement shall apply to the
financing of any such New Aircraft on the re-scheduled Funding Date therefor
except (i) the re-scheduled Funding Date shall be deemed the Delivery Date of
such New Aircraft for all purposes of this Section 1 and (ii) the related
Financing Agreements shall be amended to reflect the original delivery of such
New Aircraft to the Company.
(g) If the Scheduled Delivery Date for any Eligible Aircraft is
delayed (a) more than 30 days beyond the last day of the month set forth
opposite such Eligible Aircraft under the heading "Scheduled Delivery Months" in
Schedule I hereto or (b) beyond August 31, 2002, the Company may identify for
delivery a substitute aircraft therefor meeting the following conditions (a
"SUBSTITUTE AIRCRAFT"): (i) a Substitute Aircraft must be a Boeing 757-300,
767-400ER or 777-200ER aircraft manufactured after the date of this Agreement,
(ii) one or more Substitute Aircraft of the same or different types may be
substituted for one or more Eligible Aircraft of the same or different types so
long as after giving effect thereto such substitution does not vary the
Mandatory Economic Terms and (iii) the Company shall be obligated to obtain
prior written consent of the Policy Provider and each Initial Purchaser and to
obtain Rating Agency Confirmation in respect of the replacement of any Eligible
Aircraft by Substitute Aircraft. Upon the satisfaction of the conditions set
forth above with respect to a Substitute Aircraft, the Eligible Aircraft to be
replaced shall cease to be subject to this Agreement and all rights and
obligations of the parties hereto concerning such Eligible Aircraft shall cease,
and such Substitute Aircraft shall become and thereafter be subject to the terms
and conditions of this Agreement to the same extent as such Eligible Aircraft.
(h) The Company shall have no liability for the failure of the Pass
Through Trustees to purchase Equipment Notes with respect to any New Aircraft or
Substitute Aircraft.
(i) The Company shall provide to Standard & Poor's Ratings Services
and the Policy Provider, at least three Business Days prior to the Funding Date
for each New Aircraft, copies of the Financing Agreements, and opinions of
counsel to be delivered pursuant to the Participation Agreement, marked to show
changes from the forms thereof attached as Exhibits to this Agreement and any
supplements or amendments to any other Operative Agreement to be entered into in
connection with such Funding Date.
(j) Anything herein to the contrary notwithstanding, the Company
shall not have the right, and shall not be entitled, at any time to request the
issuance of Equipment Notes of any series to either the Class G-1 or Class G-2
Pass Through Trustee in an aggregate principal amount in excess of the amount of
the Deposits then available for withdrawal by the Escrow Agent under and in
accordance with the provisions of the related Deposit Agreement.
SECTION 2. CONDITIONS PRECEDENT. The obligation of the Applicable
Pass Through Trustees to enter into, and to cause the Subordination Agent to
enter into, any Participation Agreement as directed pursuant to a Delivery
Notice and to perform its obligations thereunder is subject to satisfaction of
the following conditions:
(a) no Triggering Event shall have occurred;
(b) the Company shall have delivered a certificate to each such Pass
Through Trustee, each Initial Purchaser, the Policy Provider and the Primary
Liquidity Provider stating that (i) such Participation Agreement and the other
Financing Agreements to be entered into pursuant to such Participation Agreement
do not vary the Mandatory Economic Terms and contain the Mandatory Document
Terms, and (ii) any substantive modification of such Financing Agreements from
the forms of Financing Agreements attached to this Agreement do not materially
and adversely affect the Policy Provider, the Initial Purchaser or the
Certificateholders, and such certification shall be true and correct; and
(c) upon purchase hereunder of the Series G-1 or Series G-2
Equipment Notes relating to any New Aircraft, the Series H Equipment Notes
relating to such New Aircraft shall be concurrently purchased by the Pass
Through Trustee for the Class H Certificates.
Anything herein to the contrary notwithstanding, the obligation of
each Pass Through Trustee to purchase Equipment Notes shall terminate on the
Cut-off Date.
SECTION 3. REPRESENTATIONS AND WARRANTIES. (a) The Company
represents and warrants that:
(i) the Company is duly incorporated, validly existing and in
good standing under the laws of the State of Delaware and is a
"citizen of the United States" as defined in Section 40102(a)(15) of
the Act, and has the full corporate power, authority and legal right
under the laws of the State of Delaware to execute and deliver this
Agreement and each Financing Agreement to which it will be a party
and to carry out the obligations of the Company under this Agreement
and each Financing Agreement to which it will be a party;
(ii) the execution and delivery by the Company of this
Agreement and the performance by the Company of its obligations
under this Agreement have been duly authorized by the Company and
will not violate its Certificate of Incorporation 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 Agreement constitutes the legal, valid and binding
obligation of the Company, 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.
(b) WTC represents and warrants that:
(i) WTC is duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and is a "citizen
of the United States" as defined in Section 40102(a)(15) of the Act,
and has the full corporate power, authority and legal right under
the laws of the State of Delaware and the United States pertaining
to its banking, trust and fiduciary powers to execute and deliver
this Agreement and each Financing Agreement to which it will be a
party and to carry out the obligations of WTC, in its capacity as
Subordination Agent, Pass Through Trustee or Paying Agent, as the
case may be, under this Agreement and each Financing Agreement to
which it will be a party;
(ii) the execution and delivery by WTC, in its capacity as
Subordination Agent, Pass Through Trustee or Paying Agent, as the
case may be, of this Agreement and the performance by WTC, in its
capacity as Subordination Agent, Pass Through Trustee or Paying
Agent, as the case may be, of its obligations under this Agreement
have been duly authorized by WTC, in its capacity as Subordination
Agent, Pass Through Trustee or Paying Agent, as the case may be, 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 Agreement constitutes the legal, valid and binding
obligations of WTC, in its capacity as Subordination Agent, Pass
Through Trustee or Paying Agent, as the case may be, 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.
(c) The Pass Through Trustee hereby confirms to each of the other
parties hereto that its representations and warranties set forth in Section 7.15
of the Basic Pass Through Trust Agreement and Section 5.04 of each Trust
Supplement are true and correct as of the date hereof.
(d) The Subordination Agent represents and warrants that:
(i) the Subordination Agent is duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware, and has the full corporate power, authority and legal
right under the laws of the State of Delaware and the United States
pertaining to its banking, trust and fiduciary powers to execute and
deliver this Agreement and each Financing Agreement to which it is
or will be a party and to perform its obligations under this
Agreement and each Financing Agreement to which it is or will be a
party;
(ii) this Agreement has been duly authorized, executed and
delivered by the Subordination Agent; this Agreement constitutes the
legal, valid and binding obligations of the Subordination Agent
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;
(iii) none of the execution, delivery and performance by the
Subordination Agent of this Agreement contravenes any law, rule or
regulation of the State of Delaware or any United States
governmental authority or agency regulating the Subordination
Agent's banking, trust or fiduciary powers or any judgment or order
applicable to or binding on the Subordination Agent and do not
contravene the Subordination Agent's articles of association or
by-laws or result in any breach of, or constitute a default under,
any agreement or instrument to which the Subordination Agent is a
party or by which it or any of its properties may be bound;
(iv) neither the execution and delivery by the Subordination
Agent of this Agreement nor the consummation by the Subordination
Agent of any of the transactions contemplated hereby requires the
consent or approval of, the giving of notice to, the registration
with, or the taking of any other action with respect to, any
Delaware governmental authority or agency or any federal
governmental authority or agency regulating the Subordination
Agent's banking, trust or fiduciary powers;
(v) there are no Taxes payable by the Subordination Agent
imposed by the State of Delaware or any political subdivision or
taxing authority thereof in connection with the execution, delivery
and performance by the Subordination Agent of this Agreement (other
than franchise or other taxes based on or measured by any fees or
compensation received by the Subordination Agent for services
rendered in connection with the transactions contemplated by the
Intercreditor Agreement or any of the Liquidity Facilities), and
there are no Taxes payable by the Subordination Agent imposed by the
State of Delaware or any political subdivision thereof in connection
with the acquisition, possession or ownership by the Subordination
Agent of any of the Equipment Notes (other than franchise or other
taxes based on or measured by any fees or compensation received by
the Subordination Agent for services rendered in connection with the
transactions contemplated by the Intercreditor Agreement or any of
the Liquidity Facilities); and
(vi) there are no pending or threatened actions or proceedings
against the Subordination Agent before any court or administrative
agency which individually or in the aggregate, if determined
adversely to it, would materially adversely affect the ability of
the Subordination Agent to perform its obligations under this
Agreement.
(e) The Escrow Agent represents and warrants that:
(i) the Escrow Agent is a national banking association duly
incorporated, validly existing and in good standing under the laws
of the United States and has the full corporate power, authority and
legal right under the laws of the United States pertaining to its
banking, trust and fiduciary powers to execute and deliver this
Agreement, each Deposit Agreement and each Escrow and Paying Agent
Agreement (collectively, the "ESCROW AGENT AGREEMENTS") and to carry
out the obligations of the Escrow Agent under each of the Escrow
Agent Agreements;
(ii) the execution and delivery by the Escrow Agent of each of
the Escrow Agent Agreements and the performance by the Escrow Agent
of its obligations hereunder and thereunder have been duly
authorized by the Escrow Agent 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) each of the Escrow Agent Agreements constitutes the
legal, valid and binding obligations of the Escrow Agent 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.
(f) The Paying Agent represents and warrants that:
(i) the Paying Agent is duly incorporated, validly existing and
in good standing under the laws of the State of Delaware and has the
full corporate power, authority and legal right under the laws of
the United States pertaining to its banking, trust and fiduciary
powers to execute and deliver this Agreement and the Escrow and
Paying Agent Agreement (collectively, the "PAYING AGENT AGREEMENTS")
and to carry out the obligations of the Paying Agent under each of
the Paying Agent Agreements;
(ii) the execution and delivery by the Paying Agent of each of
the Paying Agent Agreements and the performance by the Paying Agent
of its obligations hereunder and thereunder have been duly
authorized by the Paying Agent 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) each of the Paying Agent Agreements constitutes the
legal, valid and binding obligations of the Paying Agent 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.
SECTION 4. COVENANTS. (a) The Company covenants with each of the
other parties hereto that:
(i) on the date that the Depositary is obligated to pay the amount
of the Final Withdrawal to the Paying Agent pursuant to a Deposit Agreement
relating to any Trust, the Company shall pay to the Pass Through Trustee of such
Trust no later than 12:30 p.m. (New York time) an amount equal to the Deposit
Break Amount (in the case of the Class G-1 Trust) or the Deposit Make-Whole
Premium (in the case of the Class G-2 Trust) to be paid in respect of such Final
Withdrawal amount;
(ii) subject to Section 4(a)(iv) of this Agreement, the Company
shall at all times maintain its corporate existence and shall not wind up,
liquidate or dissolve or take any action, or fail to take any action, that would
have the effect of any of the foregoing;
(iii) the Company shall at all times remain a U.S. Air Carrier (as
defined in the Financing Agreements) and shall at all times be otherwise
certificated and registered to the extent necessary to entitle the Loan Trustee
to the rights afforded to secured parties of aircraft equipment under Section
1110;
(iv) Section 4.07 of each Indenture is hereby incorporated by
reference herein;
(v) the Company agrees to provide written notice to each of the
parties hereto of the occurrence of the Cut-off Date no later than one Business
Day after the date thereof, such notice to refer specifically to the Pass
Through Trustee's obligation to assign, transfer and deliver all of its right,
title and interest to the Trust Property (as defined in each Pass Through Trust
Agreement) to the trustee of the Related Trust (as defined in each Pass Through
Trust Agreement) in accordance with Section 7.01 of each of the Trust
Supplements;
(vi) the Company shall not redeem and re-issue any Series H
Equipment Notes or issue any Series J Equipment Notes pursuant to any Indenture,
unless it shall have obtained written confirmation from each Rating Agency that
the reissuance or issuance of such Equipment Notes, as the case may be, will not
(in each case without regard to the Policies) result in (1) a reduction of the
rating for the Class G-1 or Class G-2 Certificates (or any other Class of
Certificates then rated by any Rating Agency) below the then current rating for
such Class of Certificates or (2) a withdrawal or suspension of the rating of
the Class G-1 or Class G-2 Certificates (or any other Class of Certificates then
rated by any Rating Agency). It shall be a condition to the reissuance of such
Series H Equipment Notes (the "REISSUED NOTES") that (A) (1) the original
principal amount of such Reissued Notes shall not be less than, but may equal or
be greater than, the principal amount of the Series H Equipment Notes being
simultaneously redeemed (the "ORIGINAL NOTES"), (2) the principal amount of such
Reissued Notes scheduled to be outstanding on any Payment Date subsequent to
such reissuance, after giving effect to any scheduled payment of principal of
such Reissued Notes on such date, shall not be less than would have been the
case with respect to the Original Notes had they not been redeemed, (3) the
final maturity date of the Reissued Notes shall not be prior to, but may be the
same as or later than, the final maturity date of the Original Notes, (4) the
interest rate payable on the Reissued Notes may differ from the interest rate on
the Original Notes and (5) the other terms of the Reissued Notes shall be the
same in all material respects as the other terms of the Original Notes and (B)
unless the Policy Provider shall otherwise agree (1) the aggregate original
principal amount of such Reissued Notes under all of the Indentures shall not
exceed 45% of the sum of the Series G-1 and Series G-2 Equipment Notes as of the
date of such reissuance, (2) the aggregate principal amount of such Reissued
Notes under all of the Indentures scheduled to be outstanding on any Payment
Date subsequent to such reissuance, after giving effect to any scheduled payment
of principal of such Reissued Notes on such date, shall not exceed 45% of the
sum of the Series G-1 and Series G-2 Equipment Notes issued under all of the
Indentures originally scheduled to be outstanding on such Payment Date, after
giving effect to any scheduled payment of principal of such Series G-1 and
Series G-2 Equipment Notes on such date, (3) if the interest rate for the
Reissued Notes is determined based on a margin over LIBOR, such margin shall not
exceed the Applicable Margin for the Series H (as defined in Schedule 3 to the
Participation Agreements), and (4) if the preceding clause (3) is not
applicable, the interest rate for the Reissued Notes shall not exceed the Swap
Fixed Rate, as agreed by the Company and the Policy Provider or, if they cannot
agree within five Business Days after request of the Company, as determined by
an independent investment banking firm selected by blind drawing by the Company,
witnessed by the Policy Provider, from among the five largest U.S. banking
firms, based on publicly reported revenues for the preceding fiscal year (whose
fees and expenses shall be borne equally by the Company and the Policy
Provider). If the Company redeems the Series I Equipment Notes, it shall not
reissue any Series I Equipment Notes. It shall be a condition to the issuance of
the Series J Equipment Notes that, unless the Policy Provider shall otherwise
agree, the sum of the principal amount scheduled to be outstanding at all times
after such issuance of such Series J Equipment Notes, the Series I Equipment
Notes and the Series H Equipment Notes (or, if applicable, Reissued Notes) under
each Indenture shall be less than a majority of the aggregate principal amount
of all Equipment Notes scheduled to be outstanding after such issuance under
such Indenture. Any reissuance of the Series H Equipment Notes and issuance of
Series J Equipment Notes shall be subject to the terms of Section 9.1(c) and
9.1(d), respectively, of the Intercreditor Agreement;
(vii) the Company shall not, and shall cause its Affiliates not to,
acquire any Class I Certificates; and
(viii) If the Depositary's short-term unsecured debt rating shall at
any time fall below A-1+ from Standard & Poor's Ratings Services or P-1 from
Xxxxx'x Investors Service, Inc. (such minimum ratings, the "DEPOSITARY THRESHOLD
RATINGS"), the Company shall, within 30 days after such event occurring, cause
the Depositary to be replaced with a depository bank (a "REPLACEMENT
DEPOSITARY") on the following terms and preconditions:
(A) the Replacement Depositary must meet the Depositary Threshold
Rating (unless the Company shall have obtained the prior written consent of the
Policy Provider) and the Company shall have obtained written confirmation from
each Rating Agency that such replacement will not cause a reduction of any
rating then in effect for the Class G-1 or Class G-2 Certificates by such Rating
Agency (without regard to any downgrading of any rating of the Depositary being
replaced and without regard to the Policy);
(B) the Company shall pay all fees, expenses and other amounts then
owing to the replaced Depositary; and
(C) the Company shall cause the Replacement Depositary to enter into
a Replacement Deposit Agreement for the Class G-1 or Class G-2 Certificates with
the Escrow Agent (and, upon request of the Company the Escrow Agent agrees to
enter into any such Replacement Deposit Agreement) and shall cause the
Replacement Depositary to deliver to the Company, the Policy Provider and each
Rating Agency legal opinions and other closing documentation substantially
similar in scope and substance as those that were delivered by the Depositary
being replaced in connection with the execution and delivery of the Deposit
Agreement being replaced.
Upon satisfaction of the foregoing conditions, the Company shall
instruct the Class G-1 Pass Through Trustee and Class G-2 Pass Through Trustee,
and each such Pass Through Trustee agrees, to execute and deliver to the Escrow
Agent a duly completed Withdrawal Certificate (as defined in the Escrow and
Paying Agent Agreements) together with a Notice of Replacement Withdrawal (as
defined in the Escrow and Paying Agent Agreements).
Each of the parties hereto agrees, at the Company's request, to
enter into any amendments to this Agreement, the Escrow and Paying Agent
Agreements and any other Operative Agreements as may be necessary or desirable
to give effect to the replacement of the Depositary with the Replacement
Depositary and the replacement of the Deposit Agreements with the Replacement
Deposit Agreements.
Upon the execution and delivery of the Replacement Deposit
Agreements, the Replacement Depositary shall be deemed to be the Depositary with
all of the rights and obligations of the Depositary hereunder and under the
other Operative Agreements and the Replacement Deposit Agreements shall be
deemed to be the Deposit Agreements hereunder and under the other Operative
Agreements, except that the obligations of the replaced Depositary under its
Deposit Agreements resulting from the delivery of any Withdrawal Notice
delivered thereunder shall remain in full force and effect notwithstanding the
execution and delivery of the Replacement Deposit Agreements.
(b) WTC, in its individual capacity, covenants with each of the
other parties to this Agreement that it will, immediately upon obtaining
knowledge of any facts that would cast doubt upon its continuing status as a
"citizen of the United States" as defined in Section 40102(a)(15) of the Act and
promptly upon public disclosure of negotiations in respect of any transaction
which would or might adversely affect such status, notify in writing all parties
hereto of all relevant matters in connection therewith. Upon WTC giving any such
notice, WTC shall, subject to Section 8.02 of any Indenture then entered into,
resign as Loan Trustee in respect of such Indenture.
(c) The Escrow Agent covenants with each of the other parties hereto
that it will not agree or consent to any amendment or modification to the
Deposit Agreement or the Escrow and Paying Agent Agreement for the Class G-1 or
Class G-2 Pass Through Trust without the Policy Provider's consent, if such
amendment or modification would adversely affect the interests of the Policy
Provider (such consent not to be unreasonably withheld or delayed).
SECTION 5. NOTICES. Unless otherwise specifically provided herein,
all notices required or permitted by the terms of this Agreement shall be in
English and in writing, and any such notice shall become effective upon being
delivered personally or, if promptly confirmed by mail, when dispatched by
facsimile or other written telecommunication, addressed to such party hereto at
its address or facsimile number set forth below the signature of such party at
the foot of this Agreement or to such other address or facsimile number as such
party may hereafter specify by notice to the other parties. Notice shall be
given to the Policy Provider at the address specified in the Intercreditor
Agreement and to each Initial Purchaser at its address specified in the
Certificate Purchase Agreement.
SECTION 6. EXPENSES. (a) The Company agrees to pay to the
Subordination Agent when due an amount or amounts equal to the fees payable to
the Primary Liquidity Provider under Section 2.03 of each Primary Liquidity
Facility and the related Fee Letter (as defined in the Intercreditor Agreement)
multiplied by a fraction the numerator of which shall be the then outstanding
aggregate amount of the Deposits under the Deposit Agreements and the
denominator of which shall be the sum of (x) the then outstanding aggregate
principal amount of the Series G-1 Equipment Notes and Series G-2 Equipment
Notes issued under all of the Indentures and (y) the then outstanding aggregate
amount of the Deposits under the Deposit Agreements.
(b) So long as no Equipment Notes have been issued in respect of any
Aircraft, the Company agrees to pay (i) to the Subordination Agent when due (A)
the amount equal to interest on any Downgrade Advance (other than any Applied
Downgrade Advance) payable under Section 3.07 of each Primary Liquidity Facility
minus Investment Earnings while such Downgrade Advance shall be outstanding, (B)
the amount equal to interest on any Non-Extension Advance (other than any
Applied Non-Extension Advance) payable under Section 3.07 of each Primary
Liquidity Facility minus Investment Earnings while such Non-Extension Advance
shall be outstanding and (C) any other amounts owed to the Primary Liquidity
Provider by the Subordination Agent as borrower under each Primary Liquidity
Facility (other than amounts due as repayment of advances thereunder or as
interest on such advances, except to the extent payable pursuant to clause (A)
or (B)), (ii) all compensation and reimbursement of expenses, disbursements and
advances payable by the Company under the Pass Through Trust Agreements, (iii)
all compensation and reimbursement of expenses and disbursements payable to the
Subordination Agent under the Intercreditor Agreement except with respect to any
income or franchise taxes incurred by the Subordination Agent in connection with
the transactions contemplated by the Intercreditor Agreement, (iv) in the event
the Company requests any amendment to any Operative Agreement, all reasonable
fees and expenses (including, without limitation, fees and disbursements of
counsel) of the Escrow Agent and/or the Paying Agent in connection therewith and
(v) all compensation and reimbursement of expenses and disbursements payable to
the Policy Provider under the Policy Provider Agreement (except for fees payable
under Section 6(c) below). For purposes of this Section 6(b), the terms "Applied
Downgrade Advance", "Applied Non-Extension Advance", "Downgrade Advance",
"Investment Earnings" and "Non-Extension Advance" shall have the meanings
specified in each Primary Liquidity Facility.
(c) The Company agrees to pay to the Subordination Agent when due
for application in accordance with the Intercreditor Agreement an amount or
amounts equal to the fees payable to the Policy Provider under Section 3.02 of
the Policy Provider Agreement (but excluding all such fees paid by the Company
to the Policy Provider under the Policy Provider Agreement) multiplied by a
fraction the numerator of which shall be the then outstanding aggregate amount
of Deposits under the Deposit Agreements and the denominator of which shall be
the sum of (x) the outstanding aggregate principal amount of the Series G-1 and
Series G-2 Equipment Notes issued under all of the Indentures and (y) the then
outstanding aggregate amount of the Deposits under the Deposit Agreements.
SECTION 7. FURTHER ASSURANCES. Each party hereto shall duly execute,
acknowledge and deliver, or shall cause to be executed, acknowledged and
delivered, all such further agreements, instruments, certificates or documents,
and shall do and cause to be done such further acts and things, in any case, as
any other party hereto shall reasonably request in connection with its
administration of, or to carry out more effectually the purposes of, or to
better assure and confirm unto it the rights and benefits to be provided under,
this Agreement.
SECTION 8. MISCELLANEOUS. (a) Provided that the transactions
contemplated hereby have been consummated, and except as otherwise provided for
herein, the representations, warranties and agreements herein of the Company,
the Subordination Agent, the Escrow Agent, the Paying Agent and the Pass Through
Trustee, and the Company's, the Subordination Agent's, the Escrow Agent's, the
Paying Agent's and the Pass Through Trustee's obligations under any and all
thereof, shall survive the expiration or other termination of this Agreement and
the other agreements referred to herein.
(b) This Agreement may be executed in any number of counterparts
(and each of the parties hereto shall not be required to execute the same
counterpart). Each counterpart of this Agreement, including a signature page
executed by each of the parties hereto, shall be an original counterpart of this
Agreement, but all of such counterparts together shall constitute one
instrument. Neither this Agreement nor any of the terms hereof may be
terminated, amended, supplemented, waived or modified orally, but only by an
instrument in writing signed by the party against which the enforcement of the
termination, amendment, supplement, waiver or modification is sought. The index
preceding this Agreement and the headings of the various Sections of this
Agreement are for convenience of reference only and shall not modify, define,
expand or limit any of the terms or provisions hereof. The terms of this
Agreement shall be binding upon, and shall inure to the benefit of, the Company
and its successors and permitted assigns, the Pass Through Trustee and its
successors as Pass Through Trustee (and any additional trustee appointed) under
any of the Pass Through Trust Agreements, the Escrow Agent and its successors as
Escrow Agent under the Escrow and Paying Agent Agreements, the Paying Agent and
its successors as Paying Agent under the Escrow and Paying Agent Agreement and
the Subordination Agent and its successors as Subordination Agent under the
Intercreditor Agreement.
(c) This Agreement is not intended to, and shall not, provide any
person not a party hereto (other than the Underwriters and each of the
beneficiaries of Section 6 hereof) with any rights of any nature whatsoever
against any of the parties hereto, and no person not a party hereto (other than
the Underwriters and each of the beneficiaries of Section 6 hereof) shall have
any right, power or privilege in respect of, or have any benefit or interest
arising out of, this Agreement. To the extent that this Agreement expressly
confers upon, gives or grants any right, power, privilege, benefit, interest,
remedy or claim to any of the beneficiaries of Section 6 hereof (including, but
not limited to rights, powers, privileges, benefits, interests, remedies and
claims under Section 6) each such party is hereby recognized as a third party
beneficiary hereunder and may enforce any such right, power, privilege, benefit,
interest, remedy or claim.
SECTION 9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THIS AGREEMENT
IS BEING DELIVERED IN THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized as of
the day and year first above written.
CONTINENTAL AIRLINES, INC.
By
--------------------------------
Name:
Title:
Address: 0000 Xxxxx Xxxxxx
Xxxx. XXX-XX
Xxxxxxx, XX 00000
Attention: Treasurer
Facsimile: (000) 000-0000
WILMINGTON TRUST COMPANY,
not in its individual capacity,
except as otherwise provided
herein, but solely as Pass Through
Trustee
By
--------------------------------
Name:
Title:
Address: Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust
Administration
Facsimile: (000) 000-0000
WILMINGTON TRUST COMPANY,
not in its individual capacity,
except as otherwise provided
herein, but solely as
Subordination Agent
By
--------------------------------
Name:
Title:
Address: Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust
Administration
Facsimile: (000) 000-0000
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
as Escrow Agent
By
--------------------------------
Name:
Title:
Address: 00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Corporate Trust
Department, 3rd Floor
Facsimile: (000) 000-0000
WILMINGTON TRUST COMPANY,
as Paying Agent
By
--------------------------------
Name:
Title:
Address: Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust
Administration
Facsimile: (000) 000-0000
SCHEDULE I to
NOTE PURCHASE AGREEMENT
ELIGIBLE AIRCRAFT AND SCHEDULED DELIVERY MONTHS
Expected
New Aircraft Registration Manufacturer's Scheduled
TYPE NUMBER SERIAL NUMBER DELIVERY MONTH
---------------- ---------------- ---------------- -----------------
Boeing 757-324 N75853 32812 Feb 2002
Boeing 757-324 N75854 32813 Feb 2002
Boeing 767-424ER N68061 29456 Mar 2002
Boeing 767-424ER N76062 29457 Mar 2002
Boeing 767-424ER N69063 29458 April 2002
Boeing 767-424ER N76064 29459 April 2002
Boeing 767-424ER N76065 29460 May 2002
Boeing 767-424ER N77066 29461 May 2002
Boeing 777-224ER N78017 31679 Mar 2002
Boeing 777-224ER N37018 31680 April 2002
SCHEDULE II to
NOTE PURCHASE AGREEMENT
TRUST SUPPLEMENTS
Trust Supplement dated as of the Issuance Date between the Company and the Pass
Through Trustee in respect of Continental Airlines Pass Through Trust, Series
2002-1G-1-O.
Trust Supplement dated as of the Issuance Date between the Company and the Pass
Through Trustee in respect of Continental Airlines Pass Through Trust, Series
2002-1G-2-O.
Trust Supplement dated as of the Issuance Date between the Company and the Pass
Through Trustee in respect of Continental Airlines Pass Through Trust, Series
2002-1H-O.
Trust Supplement dated as of the Issuance Date between the Company and the Pass
Through Trustee in respect of Continental Airlines Pass Through Trust, Series
2002-1I-O.
SCHEDULE III to
NOTE PURCHASE AGREEMENT
MANDATORY DOCUMENT TERMS
1. May not modify in any material adverse respect the Granting Clause of the
Indenture so as to deprive the Note Holders or the Related Note Holders
(as defined in the Indenture) of a first priority security interest in
and mortgage lien on the Aircraft or to eliminate any of the obligations
secured thereby or otherwise modify in any material adverse respect as
regards the interests of the Note Holders, the Subordination Agent, the
Liquidity Providers or the Mortgagee the provisions of Article II or III
or Section 4.05(c), 5.01, 5.02, 6.02, 10.01(a), 11.04, 11.11, 11.12 or
11.13 of the Indenture or the definition of "Break Amount" or "Make-Whole
Amount" in Annex A to the Indenture.
2. May not modify in any material adverse respect as regards the interests
of the Note Holders, the Subordination Agent, the Liquidity Providers or
the Mortgagee the provisions of Section 4.1.8, 4.1.9, 4.1.10, 4.1.11,
6.1.3(b), 6.3, 10, 12.8(a) or 12.9 of the Participation Agreement, of the
provisions of Section 4.1.2(x) of the Participation Agreement so as to
eliminate the requirement to deliver to the Loan Participant or the
Mortgagee, as the case may be, the legal opinions to be provided to such
Persons thereunder (recognizing that the lawyers rendering such opinions
may be changed) or of the provisions of Section 6.4.5(a)(ii) of the
Participation Agreement as regards the rights of the Mortgagee thereunder
or otherwise modify the terms of the Participation Agreement to deprive
the Trustees, the Subordination Agent, the Liquidity Providers or the
Mortgagee of any indemnity or right of reimbursement in its favor for
Expenses or Taxes.
Notwithstanding the foregoing, any such Mandatory Document Term may be
modified to correct or supplement any such provision which may be
defective or to cure any ambiguity or correct any mistake, PROVIDED that
any such action shall not materially adversely affect the interests of
the Note Holders, the Subordination Agent, the Liquidity Providers, the
Mortgagee or the Certificateholders.
SCHEDULE IV to
NOTE PURCHASE AGREEMENT
MANDATORY ECONOMIC TERMS
EQUIPMENT NOTES
Obligor: Continental
Maximum Principal Amount:
The aggregate principal amount of the Series G-1, G-2 and H
Equipment Notes issued with respect to an Aircraft shall equal the amounts set
forth in the following table:
Manufacturer's
Serial
AIRCRAFT TYPE NUMBER SERIES G-1 SERIES G-2 SERIES H
------------- ------------- ---------- ---------- --------
Boeing 757-324 32812 $ 13,236,852 $ 19,123,458 $ 14,336,941
Boeing 757-324 32813 13,236,852 19,123,458 14,336,941
Boeing 767-424ER 29456 20,053,877 28,972,107 21,720,516
Boeing 767-424ER 29457 20,053,877 28,972,107 21,720,516
Boeing 767-424ER 29458 20,053,877 28,972,107 21,720,516
Boeing 767-424ER 29459 20,053,877 28,972,107 21,720,516
Boeing 767-424ER 29460 20,053,877 28,972,107 21,720,516
Boeing 767-424ER 29461 20,053,877 28,972,107 21,720,516
Boeing 777-224ER 31679 27,954,788 40,386,656 30,278,054
Boeing 777-224ER 31680 27,954,788 40,386,656 30,278,054
The original aggregate principal amount of all Series G-1, G-2 and H Equipment
Notes for all Aircraft shall not exceed the aggregate face amount of all Class
G-1, G-2 and H Certificates originally issued on the Issuance Date. The original
aggregate principal amount of all Series G-1, G-2 and H Equipment Notes shall
not exceed the original aggregate face amount of all Certificates of the related
Class originally issued on the Issuance Date.
The Loan to Aircraft Value for the Series G-1, G-2 and H Equipment Notes issued
in respect of each Aircraft computed on the date of issuance thereof (with (i)
the principal amount of the series of Equipment Notes that rank equally or
senior aggregated for purposes of the calculation and (ii) the value for such
Aircraft for these purposes equal to the value (the "ASSUMED
APPRAISED VALUE") for such Aircraft set forth in the Prospectus Supplement under
"Description of the Aircraft and the Appraisals--The Appraisals" in the column
"Appraised Value") and thereafter based on such value after giving effect to the
Depreciation Assumption (as defined in the Prospectus Supplement in "Description
of the Equipment Notes--Loan to Value Ratios of Equipment Notes")) will not
exceed as of the issuance date of such Equipment Notes and any August 15 Regular
Distribution Date thereafter (assuming no default in the payment of the
Equipment Notes and after giving effect to scheduled payments) the Loan to
Aircraft Value for such series of Equipment Notes for such Aircraft set forth in
the following table for the applicable date (with the maximum at issuance the
same as the maximum at August 15, 2002):
Class G-1 Class G-2 Class H
Equipment Equipment Equipment
DATE NOTE NOTE NOTE
----------------------------- --------- --------- ---------
August 15, 2002............. 52.9% 52.9% 76.3%
August 15, 2003............. 51.8 51.8 74.8
August 15, 2004............. 50.7 50.7 71.7
August 15, 2005............. 49.7 49.7 68.0
August 15, 2006............. 48.6 48.6 64.8
August 15, 2007............. 47.4 47.4 N/A
August 15, 2008............. 46.3 46.3 N/A
August 15, 2009............. 45.2 45.2 N/A
August 15, 2010............. 44.0 44.0 N/A
August 15, 2011 ............ N/A N/A N/A
As of the Delivery Period Termination Date and each August 15 Regular
Distribution Date thereafter, the Loan to Aircraft Value for each Class of
Certificates indicated below (computed (i) after aggregating the principal
amount of the class of Certificates that rank equally or senior and (ii) as of
any such date on the basis of the Assumed Appraised Value of all Aircraft that
have been financed pursuant to the Note Purchase Agreement and the Depreciation
Assumption) will not exceed (assuming no default in the payment of the Equipment
Notes and after giving effect to scheduled payments) the percentages set forth
in the following table for the applicable date:
Class G-1 Class G-2 Class H
DATE (1) CERTIFICATES CERTIFICATES CERTIFICATES
------------------------------- ------------ ------------ ------------
August 15, 2002............... 52.6% 52.6% 75.9%
August 15, 2003............... 51.5 51.5 74.4
August 15, 2004............... 50.5 50.5 71.4
August 15, 2005............... 49.4 49.4 67.2
August 15, 2006............... 48.3 48.3 64.4
August 15, 2007............... 47.2 47.2 N/A
August 15, 2008............... 46.1 46.1 N/A
August 15, 2009............... 44.9 44.9 N/A
August 15, 2010............... 43.8 43.8 N/A
August 15, 2011 .............. 42.6 42.6 N/A
------------
(1) If the Delivery Period Termination Date is not a Regular Distribution
Date, the LTV applicable to the Delivery Period Termination Date shall be
the LTV for the next preceding Regular Distribution Date, unless the
Delivery Period Termination Date is before August 15, 2002, in which case
the LTV for August 15, 2002, shall apply.
Initial Average Life (in years) for any Aircraft:
Series G-1: not more than 5.0 years from the Issuance Date
Series H: not more than 4.1 years from the Issuance Date
AVERAGE LIFE (IN YEARS)
As of the Delivery Period Termination Date, the average life of the Class
G-1 Certificates and the Class H Certificates shall not be more than 5.0
years and 4.1 years, respectively, from the Issuance Date (computed
without regard to the acceleration of any Equipment Notes and after
giving effect to any special distribution on the Certificates thereafter
required in respect of unused Deposits).
FINAL MATURITY DATE
There shall be a payment of principal scheduled on at least one Series
G-1 Equipment Note on August 15, 2011, and no Series G-1 Equipment Note
shall mature after such date.
Series G-2: February 15, 2012, with no scheduled amortization
There shall be a payment of principal scheduled on at least one Series H
Equipment Note on February 15, 2007, and no Series H Equipment Note shall
mature after such date.
Series G-1 Debt Rate (computed on the basis of a 360-day year and the actual
days elapsed, payable quarterly in arrears): LIBOR (as defined in the Reference
Agency Agreement) plus 0.45% (or in the case of the Interest Period commencing
on the Issuance Date, as determined pursuant to the Underwriting Agreement)
Series G-2 Debt Rate (computed on the basis of a 360-day year consisting of
twelve 30-day months, payable quarterly in arrears): 6.563%
Payment Due Rate: Debt Rate plus 2% per annum
Payment Dates: February 15, May 15, August 15 and November 15
Make-Whole Premiums: As provided in Article II of the form of Indenture
marked as Exhibit C of the Note Purchase Agreement
(the "INDENTURE FORM")
Redemption: As provided in Article II of the Indenture Form
All-risk hull insurance: Not less than the unpaid principal amount of the Series
G-2 Equipment Notes, together with six months of
interest accrued thereon, plus 110% of the unpaid
principal amount of the Series G-1 and H Equipment
Notes, subject to Continental's right to self-insure on
terms no more favorable to Continental in any material
respect than those set forth in Section G of Annex B to
the Indenture Form.
ANNEX A to
NOTE PURCHASE AGREEMENT
DEFINITIONS
"ABOVE-CAP LIQUIDITY AGREEMENT" has the meaning set forth in the
tenth recital to the Note Purchase Agreement.
"ABOVE-CAP LIQUIDITY PROVIDER" has the meaning set forth in the
tenth recital to the Note Purchase Agreement.
"ACT" means 49 U.S.C.ss.ss.40101-46507.
"AFFILIATE" means, with respect to any person, any other person
directly or indirectly controlling, controlled by or under common control with
such person. For purposes of this definition, "control" means the power,
directly or indirectly, to direct or cause the direction of the management and
policies of such person, whether through the ownership of voting securities or
by contract or otherwise and "controlling," "controlled by" and "under common
control with" have correlative meanings.
"AIRCRAFT PURCHASE AGREEMENT" means, in the case of the Boeing
767-424ER Aircraft, the Purchase Agreement No. 2060, dated as of October 10,
1997, in the case of the Boeing 777-224ER Aircraft, the Purchase Agreement No.
2061, dated as of October 10, 1997 or, in the case of the Boeing 757-324
Aircraft, the Purchase Agreement No. 2333 dated December 29, 2000, as amended,
each between the Company and the Manufacturer (including all exhibits thereto,
together with all letter agreements entered into that by their terms constitute
part of any such Purchase Agreement); and "AIRCRAFT PURCHASE AGREEMENTS" means
all such agreements.
"APPLICABLE PASS THROUGH TRUSTEE" has the meaning provided in
Section 1(b)(ii) of the Note Purchase Agreement.
"ASSUMED AMORTIZATION SCHEDULE" means the amortization schedule set
forth on page S-42 of the Prospectus Supplement.
"AVERAGE LIFE DATE" means, for any Equipment Note, the date which
follows the time of determination by a period equal to the Remaining Weighted
Average Life of such Equipment Note. "REMAINING WEIGHTED AVERAGE LIFE" on a
given date with respect to any Equipment Note shall be the number of days equal
to the quotient obtained by dividing (a) the sum of each of the products
obtained by multiplying (i) the amount of each then remaining scheduled payment
of principal of such Equipment Note by (ii) the number of days from and
including such determination date to but excluding the date on which such
payment of principal is scheduled to be made, by (b) the then outstanding
principal amount of such Equipment Note.
"BANKRUPTCY CODE" means the United States Bankruptcy Code, 11
U.S.C.ss.ss.101 ET SEQ.
"BASIC PASS THROUGH TRUST AGREEMENT" means the Pass Through Trust
Agreement, dated September 25, 1997, between the Company and Pass Through
Trustee, as such agreement may be supplemented, amended or modified, but does
not include any Trust Supplement.
"BUSINESS DAY" means any day, other than a Saturday, Sunday or other
day on which commercial banks are authorized or required by law to close in New
York, New York, Houston, Texas, Wilmington, Delaware or Salt Lake City, Utah.
"CERTIFICATES" has the meaning set forth in the third recital to the
Note Purchase Agreement.
"CERTIFICATEHOLDER" means the Person in whose name a Certificate is
registered in the Register.
"CERTIFICATE PURCHASE AGREEMENT" has the meaning set forth in the
fifth recital to the Note Purchase Agreement.
"CLASS" means the class of Certificates issued by each Pass Through
Trust.
"CLASS G-1 CERTIFICATES" means Certificates issued by the
Class G-1 Pass Through Trust.
"CLASS G-2 CERTIFICATES" means Certificates issued by the Class G-2
Pass Through Trust.
"CLASS H CERTIFICATES" means Certificates issued by the Class H Pass
Through Trust.
"CLASS I CERTIFICATES" means Certificates issued by the Class I Pass
Through Trust.
"CLASS J CERTIFICATES" means pass through certificates issued by the
Continental Airlines Pass Through Trust, Series 2002-1J, if any.
"COMPANY" means Continental Airlines, Inc., a Delaware corporation.
"CORPORATE TRUST OFFICE" with respect to any Pass Through Trustee or
any Loan Trustee, means the office of such trustee in the city at which at any
particular time its corporate trust business shall be principally administered.
"CUT-OFF DATE" means the earlier of (a) the day after the Delivery
Period Termination Date and (b) the date on which a Triggering Event occurs.
"DELIVERY PERIOD TERMINATION DATE" means the earlier of (a) August
31, 2002, or, if the Equipment Notes relating to all of the New Aircraft (or
Substitute Aircraft in lieu thereof) have not been purchased by the Pass Through
Trustees on or prior to such date due to any reason beyond the control of the
Company and not occasioned by the Company's fault or negligence, November 30,
2002 (provided that, if a labor strike occurs or continues at the Manufacturer
after the Issuance Date on or prior to either or both of such dates referred to
in this clause (a), such date or dates on or following the Issuance Date shall
be extended by adding thereto the number of days that such strike continued in
effect after the Issuance Date) 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 Pass Through Trustees in accordance with the Note
Purchase Agreement.
"DELIVERY DATE" means the Business Day on which a New Aircraft is
delivered to and accepted by the Company.
"DEPOSIT" has the meaning set forth in the seventh recital to the
Note Purchase Agreement.
"DEPOSIT AGREEMENT" has the meaning set forth in the seventh recital
to the Note Purchase Agreement.
"DEPOSITARY" means Credit Suisse First Boston, a banking institution
organized under the laws of Switzerland, acting through its New York branch.
"DEPOSIT BREAK AMOUNT" means, with respect to the distribution of
unused Deposits to holders of Class G-1 Certificates, as of the date the
Depositary is obligated to pay the amount of the Final Withdrawal to the Paying
Agent for purposes of such distribution (the "Applicable Date"), an amount
determined by the Reference Agent on the date that is two Business Days prior to
the Applicable Date pursuant to the formula set forth below (with terms defined
in the Reference Agency Agreement and used below having such respective defined
meanings), provided, however, that no Deposit Break Amount will be payable (x)
if the Deposit Break Amount, as calculated pursuant to the formula set forth
below, is equal to or less than zero or (y) on or in respect of any Applicable
Date that is a Payment Date.
Deposit Break Amount = Z-Y
Where:
X = with respect to any applicable Interest Period, the sum of (i)
the amount of such Final Withdrawal plus (ii) interest payable
thereon during such entire Interest Period at then effective
LIBOR.
Y = X, discounted to present value from the last day of the then
applicable Interest Period to the Applicable Date, using then
effective LIBOR as the discount rate.
Z = X, discounted to present value from the last day of the then
applicable Interest Period to the Applicable Date, using a rate
equal to the applicable London interbank offered rate for a
period commencing on the Applicable Date and ending on the last
day of the then applicable Interest Period, determined by the
Reference Agent as of two Business Days prior to the Applicable
Date as the discount rate.
"DEPOSIT MAKE-WHOLE PREMIUM" means, with respect to the distribution
of unused Deposits to holders of Class G-2 Certificates, as of any date of
determination, an amount equal to the excess, if any, of (a) the present value
of the excess of (i) the scheduled payment of principal and interest to maturity
of the Equipment Notes, assuming the required principal amount thereof were
issued, on each remaining Regular Distribution Date for such Class under the
Assumed Amortization Schedule over (ii) the scheduled payment of principal and
interest to maturity of the Equipment Notes in the amount of the remaining
Deposits for such Class on each such Regular Distribution Date under the Assumed
Amortization Schedule (assuming a pro rata reduction in the amortization
amounts), such present value computed by discounting such excess on a quarterly
basis on each Regular Distribution Date (assuming a 360-day year of twelve
30-day months) using a discount rate equal to the Treasury Yield over (b) the
amount of such Deposits to be distributed to the holders of such Certificates
plus accrued and unpaid interest to but excluding the date of determination from
and including the preceding Regular Distribution Date (or if such date of
determination precedes the first Regular Distribution Date, the date of issuance
of the Certificates). The date of determination of the Deposit Make-Whole Amount
shall be the third Business Day prior to the applicable distribution date.
"ELIGIBLE AIRCRAFT" has the meaning set forth in the second recital
to the Note Purchase Agreement.
"EQUIPMENT NOTES" means and includes any equipment notes issued
under any Indenture in the form specified in Section 2.01 thereof (as such form
may be varied pursuant to the terms of such Indenture) and any Equipment Note
issued under any Indenture in exchange for or replacement of any other Equipment
Note.
"ESCROW AGENT" has the meaning set forth in the first paragraph of
the Note Purchase Agreement.
"ESCROW AND PAYING AGENT AGREEMENT" has the meaning set forth in the
seventh recital to the Note Purchase Agreement.
"FAA" means the Federal Aviation Administration of the United
States.
"FINAL WITHDRAWAL" with respect to each Escrow and Paying Agent
Agreement, has the meaning set forth in Section 1.02 thereof.
"FINANCING AGREEMENTS" means, collectively, the Participation
Agreement, the Indenture and the Equipment Notes issued thereunder.
"GOVERNMENT ENTITY" means (a) any federal, state, provincial or
similar government, and any body, board, department, commission, court,
tribunal, authority, agency or other instrumentality of any such government or
otherwise exercising any executive, legislative, judicial, administrative or
regulatory functions of such government or (b) any other government entity
having jurisdiction over any matter contemplated by the Operative Agreements or
relating to the observance or performance of the obligations of any of the
parties to the Operative Agreements.
"INDENTURE" means the Trust Indenture and Mortgage substantially in
the form of Exhibit C to the Note Purchase Agreement.
"INITIAL PURCHASER" has the meaning set forth in the fifth recital
to the Note Purchase Agreement.
"INTERCREDITOR AGREEMENT" has the meaning set forth in the tenth
recital to the Note Purchase Agreement.
"ISSUANCE DATE" means the date of the original issuance of the
Certificates.
"LAW" means (a) any constitution, treaty, statute, law, decree,
regulation, order, rule or directive of any Government Entity, and (b) any
judicial or administrative interpretation or application of, or decision under,
any of the foregoing.
"LIBOR" has the meaning set forth in the Reference Agency Agreement.
"LIQUIDITY FACILITIES" means, collectively, the Above-Cap Liquidity
Agreement and the Primary Liquidity Facilities.
"LIQUIDITY PROVIDERS" means the Primary Liquidity Provider and the
Above-Cap Liquidity Provider.
"LOAN TRUSTEE" means the "Mortgagee" as defined in the Financing
Agreements.
"MANDATORY DOCUMENT TERMS" means the terms set forth on Schedule III
to the Note Purchase Agreement.
"MANDATORY ECONOMIC TERMS" means the terms set forth on Schedule IV
to the Note Purchase Agreement.
"MANUFACTURER" means The Boeing Company, a Delaware corporation,
solely in its capacity as manufacturer or seller of New Aircraft.
"NEW AIRCRAFT" has the meaning set forth in the second recital to
the Note Purchase Agreement.
"NOTE PURCHASE AGREEMENT" means the Note Purchase Agreement to which
this Annex A is attached.
"NOTICE OF PURCHASE WITHDRAWAL" with respect to each Deposit
Agreement, has the meaning set forth in Section 2.3 thereof.
"OPERATIVE AGREEMENTS" means, collectively, the Pass Through Trust
Agreements, the Escrow and Paying Agent Agreements, the Deposit Agreements, the
Liquidity Facilities, the Intercreditor Agreement, the Trust Agreements, the
Reference Agency Agreement, the Equipment Notes, the Policy Provider Agreement,
the Policies, the Certificates and the Financing Agreements.
"PARTICIPATION AGREEMENT" means, the Participation Agreement
substantially in the form of Exhibit B to the Note Purchase Agreement.
"PASS THROUGH TRUST" has the meaning set forth in the third recital
to the Note Purchase Agreement.
"PASS THROUGH TRUST AGREEMENT" means each of the four separate Trust
Supplements referred to in the third recital to the Note Purchase Agreement,
together in each case with the Basic Pass Through Trust Agreement, each dated as
of the Issuance Date, by and between the Company and Pass Through Trustee.
"PASS THROUGH TRUSTEE" has the meaning set forth in the first
paragraph of the Note Purchase Agreement.
"PAYING AGENT" has the meaning set forth in the first paragraph of
the Note Purchase Agreement.
"PERSON" means any individual, firm, partnership, joint venture,
trust, trustee, Government Entity, organization, association, corporation,
limited liability company, government agency, committee, department, authority
and other body, corporate or incorporate, whether having distinct legal status
or not, or any member of any of the same.
"POLICY" has the meaning set forth in the eleventh recital to the
Note Purchase Agreement.
"POLICY PROVIDER AGREEMENT" has the meaning set forth in the
eleventh recital to the Note Purchase Agreement.
"PRIMARY LIQUIDITY FACILITY" has the meaning set forth in the tenth
recital to the Note Purchase Agreement.
"PRIMARY LIQUIDITY PROVIDER" has the meaning set forth in the tenth
recital to the Note Purchase Agreement.
"PROSPECTUS SUPPLEMENT" means the final Prospectus Supplement, dated
March 11, 2002, to the Prospectus, dated August 23, 2001, of the Company
relating to the offering of the Certificates.
"RATING AGENCIES" means, collectively, at any time, each nationally
recognized rating agency which shall have been requested to rate the
Certificates and which shall then be rating the Certificates. The initial Rating
Agencies will be Xxxxx'x Investors Service, Inc. and Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc.
"RATING AGENCY CONFIRMATION" means, with respect to (1) any
Financing Agreement that has been modified in any material respect from the
forms thereof attached to the Note Purchase Agreement or (2) a Substitute
Aircraft, a written confirmation from each of the Rating Agencies (in each case
without regard to the Policies) that (1) the use of such Financing Agreement
with such modifications or (2) the substituting of such Substitute Aircraft for
an Eligible Aircraft, whichever of the foregoing shall in a particular case
require Rating Agency Confirmation, would not result in (i) a reduction of the
rating for the Class G-1 or Class G-2 Certificates (or any other Class of
Certificates then rated by the Rating Agencies) below the then current rating
for such Class of Certificates or (ii) a withdrawal or suspension of the rating
of the Class G-1 or Class G-2 Certificates (or any other Class of Certificates
then rated by the Rating Agencies).
"REFERENCE AGENT" has the meaning set forth in the sixth recital to
the Note Purchase Agreement.
"REFERENCE AGENCY AGREEMENT" has the meaning set forth in the sixth
recital to the Note Purchase Agreement.
"REGISTER" means the register maintained pursuant to Sections 3.04
and 7.12 of the Basic Pass Through Trust Agreement with respect to each Pass
Through Trust.
"REGULAR DISTRIBUTION DATES" shall mean February 15, May 15, August
15 and November 15 of each year, commencing May 15, 2002.
"REISSUED NOTES" has the meaning set forth in Section 4(a)(vi) of
the Note Purchase Agreement.
"SECTION 1110" means 11 U.S.C. ss. 1110 of the Bankruptcy Code or
any successor or analogous Section of the federal bankruptcy Law in effect from
time to time.
"SERIES G-1 EQUIPMENT NOTES" means Equipment Notes issued under an
Indenture and designated as "Series G-1" thereunder.
"SERIES G-2 EQUIPMENT NOTES" means Equipment Notes issued under an
Indenture and designated as "Series G-2" thereunder.
"SERIES H EQUIPMENT NOTES" means Equipment Notes issued under an
Indenture and designated as "Series H" thereunder.
"SERIES I EQUIPMENT NOTES" means Equipment Notes issued under an
Indenture and designated as "Series I" thereunder.
"SERIES J EQUIPMENT NOTES" means Equipment Notes issued under an
Indenture and designated as "Series J", if any.
"SUBORDINATION AGENT" has the meaning set forth in the first
paragraph of the Note Purchase Agreement.
"SUBSTITUTE AIRCRAFT" has the meaning set forth in Section 1(g) of
the Note Purchase Agreement.
"SWAP FIXED RATE" means the sum of (i) the fixed rate (calculated on
the basis of a 360 day year comprised of twelve 30-day months) that would be
payable by the fixed rate payor on each Payment Date (as defined in the
Reference Agency Agreement) after the issuance of the Reissued Notes to and
including the maturity date thereof on a notional amount equal to the unpaid
principal amount of the Reissued Notes scheduled to be outstanding during the
Interest Period (as defined in the Reference Agency Agreement) ending on such
Payment Date in exchange for payment on such Payment Date to such fixed rate
payor of interest on such notional amount at a rate per annum equal to LIBOR
plus the Applicable Spread for the Series H Equipment Notes (as defined in
Schedule 3 to the Participation Agreements) (calculated on the basis of a 360
day year and actual days elapsed) under an interest rate swap transaction
entered into on customary and prevailing U.S. swap market terms as of a date
within ten Business Days prior to the actual issuance date of the Reissued Notes
plus (ii) fifty basis points.
"TAXES" means all license, recording, documentary, registration and
other similar fees and all taxes, levies, imposts, duties, charges, assessments
or withholdings of any nature whatsoever imposed by any Taxing Authority,
together with any penalties, additions to tax, fines or interest thereon or
additions thereto.
"TAXING AUTHORITY" means any federal, state or local government or
other taxing authority in the United States, any foreign government or any
political subdivision or taxing authority thereof, any international taxing
authority or any territory or possession of the United States or any taxing
authority thereof.
"TREASURY YIELD" means, as of any date of determination, with
respect to any Equipment Note (utilizing the Assumed Amortization Schedule
applicable thereto), the interest rate (expressed as a decimal and, in the case
of United States Treasury bills, converted to a bond equivalent yield)
determined to be the per annum rate equal to the quarterly yield to maturity for
United States Treasury securities maturing on the Average Life Date of such
Equipment Note and trading in the public securities markets either as determined
by interpolation between the most recent weekly average yield to maturity for
two series of United States Treasury securities, trading in the public
securities markets, (A) one maturing as close as possible to, but earlier than,
the Average Life Date of such Equipment Note and (B) the other maturing as close
as possible to, but later than, the Average Life Date of such Equipment Note, in
each case as published in the most recent H.15(519) or, if a weekly average
yield to maturity for United States Treasury securities maturing on the Average
Life Date of such Equipment Note is reported on the most recent H.15(519), such
weekly average yield to maturity as published in such H.15(519). The "most
recent H.15(519)" means the H.15(519) most recently published prior to the close
of business on the date of determination of the Deposit Make-Whole Premium.
"TRIGGERING EVENT" has the meaning assigned to such term in the
Intercreditor Agreement.
"TRUST SUPPLEMENT" means an agreement supplemental to the Basic Pass
Through Trust Agreement pursuant to which (i) a separate trust is created for
the benefit of the holders of the Pass Through Certificates of a class, (ii) the
issuance of the Pass Through Certificates of such class representing fractional
undivided interests in such trust is authorized and (iii) the terms of the Pass
Through Certificates of such class are established.
"UNDERWRITERS" has the meaning set forth in the fourth recital to
the Note Purchase Agreement.
"WTC" has the meaning set forth in the first paragraph of the Note
Purchase Agreement.
EXHIBIT A to
NOTE PURCHASE AGREEMENT
FORM OF DELIVERY NOTICE
Dated as of [__________]
To each of the addressees listed
in Schedule A hereto
RE: DELIVERY NOTICE IN ACCORDANCE WITH NOTE
PURCHASE AGREEMENT REFERRED TO BELOW
Gentlemen:
Reference is made to the Note Purchase Agreement, dated as of March 25,
2002, among Continental Airlines, Inc. (the "COMPANY"), Wilmington Trust
Company, as Pass Through Trustee under each of the Pass Through Trust Agreements
(as defined therein) (the "PASS THROUGH TRUSTEE"), Wilmington Trust Company, as
Subordination Agent (the "SUBORDINATION AGENT"), Xxxxx Fargo Bank Northwest,
National Association, as Escrow Agent (the "ESCROW AGENT") and Wilmington Trust
Company, as Paying Agent (the "PAYING AGENT") (as in effect from time to time,
the "NOTE PURCHASE AGREEMENT"). Unless otherwise defined herein, capitalized
terms used herein shall have the meanings set forth in the Note Purchase
Agreement or, to the extent not defined therein, the Intercreditor Agreement.
Pursuant to Section 1(b) of the Note Purchase Agreement, the undersigned
hereby notifies you, in respect of the Boeing [_______] aircraft with
manufacturer's serial number [______] (the "AIRCRAFT"), of the following:
(1) The Scheduled Delivery Date of the Aircraft is [_________];
(2) The Funding Date for the Aircraft shall be [__________]; and
(3) The aggregate amount of each series of Equipment Notes to be issued, and
purchased by the respective Pass Through Trustees referred to below (each,
an "APPLICABLE PASS THROUGH TRUSTEE"), on the Funding Date, in connection
with the financing of such Aircraft is as follows:
(a) the Class G-1 Trustee shall purchase Series G-1 Equipment Notes in
the amount of $[__________];
(b) the Class G-2 Trustee shall purchase Series G-2 Equipment Notes in
the amount of $[__________];
(c) the Class H Trustee shall purchase Series H Equipment Notes in the
amount of $[__________]; and
(d) the Class I Trustee shall purchase Series I Equipment Notes in the
amount of $[__________].
The Company hereby instructs the Class G-1 Trustee to (i) execute a
Withdrawal Certificate in the form of Annex A hereto dated as of [__________]
and attach thereto a Notice of Purchase Withdrawal dated such date completed as
set forth on Exhibit A hereto and (ii) deliver such Withdrawal Certificate and
Notice of Purchase Withdrawal to the applicable Escrow Agent.
The Company hereby instructs the Class G-2 Trustee to (i) execute a
Withdrawal Certificate in the form of Annex A hereto dated as of [__________]
and attach thereto a Notice of Purchase Withdrawal dated such date completed as
set forth on Exhibit B hereto and (ii) deliver such Withdrawal Certificate and
Notice of Purchase Withdrawal to the applicable Escrow Agent.
The Company hereby instructs each Applicable Pass Through Trustee to (i)
purchase Equipment Notes of a series and in an amount set forth opposite such
Pass Through Trustee in clause (3) above with a portion of the proceeds [of the
withdrawals of Deposits referred to in the applicable Notice of Purchase
Withdrawal referred to above or, in the case of the Class H Trustee [and Class I
Trustee], received on the Funding Date from the Initial Purchaser]
[received by it from the sale of Certificates on the Issuance Date] and (ii)
in the case of the Class G-1 Trust and Class G-2 Trust, re-deposit with the
Depositary the excess, if any, of the amount so withdrawn OVER the purchase
price of such Equipment Notes.
------------
Eliminate if the Class I Trustee will not purchase Equipment Notes for the
Aircraft.
Eliminate if the Funding Date is the Issuance Date.
Eliminate if the Funding Date is the Issuance Date.
Eliminate if the Class I Trustee will not purchase Equipment Notes for the
Aircraft.
Insert for each Funding Date after the Issuance Date.
Insert if the Funding Date is the Issuance Date.
The Company hereby instructs each Applicable Pass Through Trustee to (a)
enter into the Participation Agreement [____] dated as of [__________] among the
Company, as Owner, and Wilmington Trust Company, as Mortgagee and Loan
Participant, (b) perform its obligations thereunder and (c) deliver such
certificates, documents and legal opinions relating to such Pass Through Trustee
as required thereby.
Yours faithfully,
Continental Airlines, Inc.
By:
-----------------------
Name:
Title:
SCHEDULE A
Wilmington Trust Company, as
Pass Through Trustee, Subordination
Agent and Mortgagee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
Xxxxx Fargo Bank Northwest, National Association,
as Escrow Agent
00 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Corporate Trust Department
Facsimile: (000) 000-0000
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Xxxxx'x Investor Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxxx
Facsimile: (000) 000-0000
Ambac Assurance Corporation
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Surveillance Department
Facsimile: (000) 000-0000
Boeing Capital Loan Corporation
0000-X Xxxxxxxxxxx Xxxxx, Xxxxx 0
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxx Xxxxxxx
Client Services Manager
Fax: 000-000-0000
Annex A
WITHDRAWAL CERTIFICATE
(Class ___)
Xxxxx Fargo Bank Northwest, National Association,
as Escrow Agent
Ladies and Gentlemen:
Reference is made to the Escrow and Paying Agent Agreement, dated as
of March 25, 2002 (the "Agreement"). We hereby certify to you that the
conditions to the obligations of the undersigned to execute a Participation
Agreement pursuant to the Note Purchase Agreement have been satisfied. Pursuant
to Section 1.02(c) of the Agreement, please execute the attached Notice of
Purchase Withdrawal and immediately transmit by facsimile to the Depositary, at
(000) 000-0000.
Capitalized terms used herein but not defined herein shall have the
meanings set forth in the Agreement.
Very truly yours,
WILMINGTON TRUST COMPANY,
not in its individual capacity by
solely as Pass Through Trustee
By:
-------------------------------
Name:
Title:
Dated: As of [__________]
Exhibit A
NOTICE OF PURCHASE WITHDRAWAL
CREDIT SUISSE FIRST BOSTON
New York Branch
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telecopier: 000-000-0000
Gentlemen:
Reference is made to the Deposit Agreement (Class G-1) dated as of
March 25, 2002 (the "DEPOSIT AGREEMENT") between Xxxxx Fargo Bank Northwest,
National Association, as Escrow Agent, and Credit Suisse First Boston, New York
branch, as Depositary (the "DEPOSITARY").
In accordance with Section 2.4(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the Deposit,
$[_______], Account No. [____].
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposit to [___________________], Account No. [____], Reference: [_________]
on [________ __, 20___], upon the telephonic request of a representative of the
Pass Through Trustee.
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
as Escrow Agent
By
-------------------------------
Name:
Title:
Dated: As of [__________]
Exhibit B
NOTICE OF PURCHASE WITHDRAWAL
CREDIT SUISSE FIRST BOSTON
New York Branch
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telecopier: 000-000-0000
Gentlemen:
Reference is made to the Deposit Agreement (Class G-2) dated as of
March 25, 2002 (the "DEPOSIT AGREEMENT") between Xxxxx Fargo Bank Northwest,
National Association, as Escrow Agent, and Credit Suisse First Boston, New York
branch, as Depositary (the "DEPOSITARY").
In accordance with Section 2.3(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the Deposit,
$[_______], Account No. [_____].
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposit to [___________________], Account No. [____], Reference: [_________]
on [________ __, 20__], upon the telephonic request of a representative of the
Pass Through Trustee.
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
as Escrow Agent
By
------------------------------
Name:
Title:
Dated: As of [__________]
EXHIBIT B to
NOTE PURCHASE AGREEMENT
FORM OF PARTICIPATION AGREEMENT
(Filed Separately)
EXHIBIT C to
NOTE PURCHASE AGREEMENT
FORM OF INDENTURE
(Filed Separately)
