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NOTE PURCHASE AGREEMENT
Dated as of June 29, 2004
Among
CONTINENTAL AIRLINES, INC.,
WILMINGTON TRUST COMPANY,
as Pass Through Trustee under the
Pass Through Trust Agreement
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........................................3
SECTION 2. Conditions Precedent.............................................7
SECTION 3. Representations and Warranties...................................7
SECTION 4. Covenants.......................................................12
SECTION 5. Notices.........................................................13
SECTION 6. Expenses........................................................13
SECTION 7. Further Assurances..............................................14
SECTION 8. Miscellaneous...................................................15
SECTION 9. Governing Law...................................................16
SCHEDULES
Schedule I. Aircraft
Schedule II. Trust Supplement
Schedule III Mandatory Economic Terms
Schedule IV. Mandatory Document Terms
ANNEX
Annex A Definitions
EXHIBITS
Exhibit A Form of Participation Agreement
Exhibit B Form of Lease
Exhibit C Form of Trust Indenture
Exhibit D-1 Form of Purchase Agreement Assignment (Existing Aircraft)
Exhibit D-2 Form of Initial Purchase Agreement Assignment (New Aircraft)
Exhibit D-3 Form of Purchase Agreement Assignment (New Aircraft)
Exhibit E Form of Trust Agreement
Exhibit F Form of Delivery Notice
NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT, dated as of June 29, 2004, 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 the Pass Through Trust Agreement (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 the Escrow and
Paying Agent Agreement (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 the Escrow and Paying
Agent Agreement.
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 (i) previously taken delivery of the 11
Embraer EMB-145 XR aircraft listed in Part A of Schedule I hereto (the "EXISTING
AIRCRAFT"), each of which has been leased to the Company pursuant to a separate
lease agreement (collectively, the "EXISTING LEASES") and (ii) obtained
commitments from the Manufacturer pursuant to the Purchase Agreement for the
delivery of the five Embraer EMB-145 XR aircraft listed in Part B of Schedule I
hereto (together with any aircraft substituted therefor in accordance with the
Purchase Agreement, the "NEW AIRCRAFT" and, together with the Existing Aircraft,
the "AIRCRAFT");
WHEREAS, the Manufacturer, which is obligated to arrange lease
financing of the Aircraft for the Company, wishes to arrange debt financing with
respect to a portion of the purchase price of the Aircraft and, at the request
of the Manufacturer, the Company has entered into this Agreement;
WHEREAS, pursuant to the Basic Pass Through Trust Agreement and the
Trust Supplement set forth in Schedule II hereto, and concurrently with the
execution and delivery of this Agreement, a grantor trust (the "PASS THROUGH
TRUST") has been created to facilitate certain of the transactions contemplated
hereby, including, without limitation, the issuance and sale of pass through
certificates pursuant thereto (the "CERTIFICATES") to provide for a portion of
the financing of the Aircraft;
WHEREAS, the Company has entered into the Underwriting Agreement
dated as of June 18, 2004 (the "UNDERWRITING AGREEMENT") with the underwriters
(the "UNDERWRITERS") named therein, which provides that the Company will cause
the Pass Through Trustee to issue and sell the Certificates to the Underwriters
on the Issuance Date;
WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) the Escrow Agent and the Depositary have entered into a Deposit
Agreement, dated as of the Issuance Date, relating to the Pass Through Trust
(the "DEPOSIT AGREEMENT") 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 Pass Through Trustee 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 Pass Through Trustee, the Underwriters, the Paying Agent and the
Escrow Agent have entered into the Escrow and Paying Agent Agreement, dated as
of the Issuance Date, relating to the Pass Through Trust (the "ESCROW AND PAYING
AGENT AGREEMENT") 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 Escrow Agent and (b) the 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 an
Aircraft, subject to the terms and conditions of this Agreement, the Pass
Through Trustee will enter into the applicable Financing Agreements relating to
such Aircraft;
WHEREAS, upon the financing of each Aircraft, the Pass Through
Trustee will fund its purchase of Equipment Notes with the proceeds of one or
more Deposits withdrawn by the Escrow Agent under the Deposit Agreement (or, if
financed on the Issuance Date, with a portion of the proceeds from the offering
of the Certificates); and
WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) Citicorp North America, Inc. ("CNAI"), has entered into a
revolving credit agreement for the benefit of the Certificateholders with the
Subordination Agent, as agent for the Pass Through Trustee (the "CNAI LIQUIDITY
FACILITY"), (ii) WestLB AG, New York Branch ("WESTLB" and together with CNAI,
the "LIQUIDITY PROVIDERS"), has entered into a revolving credit agreement for
the benefit of the Certificateholders with the Subordination Agent, as agent for
the Pass Through Trustee (the "WESTLB LIQUIDITY FACILITY" and together with the
CNAI Liquidity Facility, the "LIQUIDITY FACILITIES") and (iii) the Pass Through
Trustee, the Liquidity Provider and the Subordination Agent have entered into
the Intercreditor Agreement, dated as of the date hereof (the "INTERCREDITOR
AGREEMENT");
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 AIRCRAFT. (a) The Company confirms that (i)
it has previously taken delivery of the Existing Aircraft under the Purchase
Agreement and, as of the Issuance Date, leases as lessee the Existing Aircraft
pursuant to the Existing Leases and (ii) ExpressJet Airlines, Inc. has entered
into the Purchase Agreement with the Manufacturer pursuant to which ExpressJet
Airlines, Inc. has agreed to acquire, and the Manufacturer has agreed to
deliver, the New Aircraft in the months specified in Schedule I hereto, all on
and subject to terms and conditions specified in the Purchase Agreement. The
Company agrees to finance the 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 and each of the Rating Agencies not less than two
Business Days' prior notice substantially in the form of Exhibit F hereto (a
"DELIVERY NOTICE") of the scheduled closing date (the "SCHEDULED CLOSING 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 the financing of each
Aircraft under this Agreement, which notice shall:
(i) specify the Scheduled Closing Date of such Aircraft (which shall
be a Business Day before the Cut-off Date) on which the financing therefor in
the manner provided herein shall be consummated;
(ii) instruct the Pass Through Trustee to instruct the Escrow Agent
to provide a Notice of Purchase Withdrawal to the Depositary with respect to the
Equipment Notes to be issued in connection with the financing of such Aircraft
(except in the case of any such financing on the Issuance Date);
(iii) instruct the Pass Through Trustee 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 Scheduled Closing
Date specified in such Delivery Notice and to perform its obligations
thereunder; and
(iv) specify the principal amount of the Equipment Notes to be
issued, and purchased by the Pass Through Trustee, in connection with the
financing of such Aircraft scheduled to be financed on such Scheduled Closing
Date (which shall in all respects comply with the Mandatory Economic Terms).
Notwithstanding the foregoing, in the case of any Aircraft to be financed
hereunder on the Issuance Date, the Delivery Notice therefor may be delivered to
the parties hereto on the Issuance Date.
(c) Upon receipt of a Delivery Notice, the Pass Through Trustee
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 other Financing Agreements to
be entered into pursuant to such Participation Agreement shall be in the forms
thereof annexed hereto in all material respects with such changes therein as
shall have been agreed upon by the related Owner Participant and the Company
and, if modified in any material respect, 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 Pass Through Trustee on or before the relevant Closing
Date, it being understood that if 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 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. 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 Aircraft, the Company shall cause WTC
(or such other person that meets the eligibility requirements to act as loan
trustee under the Trust 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, the Company
shall deliver or cause to be delivered to each Rating Agency a true and complete
copy of each Financing Agreement relating to the financing of each 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) [Intentionally omitted.]
(e) If after giving any Delivery Notice, there shall be a delay in
the delivery of the New Aircraft referred to therein, or if on the Scheduled
Closing Date of an Aircraft the financing thereof in the manner contemplated
hereby shall not be consummated for whatever reason, the Company shall give the
parties hereto prompt notice thereof. Concurrently with the giving of such
notice of postponement or subsequently, the Company shall give the parties
hereto a substitute Delivery Notice specifying the date to which the financing
of such Aircraft shall have been re-scheduled (which shall be a Business Day
before the Cut-off Date on which the Escrow Agent shall be entitled to withdraw
one or more Deposits under the Deposit Agreement to enable the Pass Through
Trustee to fund its purchase of the related Equipment Notes). Upon receipt of
any such notice of postponement, the Pass Through Trustee shall comply with its
obligations under Section 5.01 of the Trust Supplement and thereafter the
financing of such Aircraft, as specified in such substitute Delivery Notice,
shall take place on the re-scheduled closing 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
Purchase Agreement on the Delivery Date thereof by utilization of bridge
financing of such New Aircraft and promptly thereafter give the parties hereto a
Delivery Notice specifying a Scheduled Closing 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 closing date therefor except (i) the
re-scheduled closing 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 New Aircraft is delayed
(a) more than 30 days beyond the last day of the month set forth opposite such
New Aircraft under the heading "Scheduled Delivery Month" in Schedule I hereto
or (b) beyond December 31, 2004, the Company may identify for delivery a
substitute aircraft therefor meeting the following conditions (a "SUBSTITUTE
AIRCRAFT"): (i) a Substitute Aircraft must be an Embraer EMB-145 XR aircraft
manufactured after the date of this Agreement and (ii) the Company shall be
obligated to obtain Rating Agency Confirmation in respect of the replacement of
any New Aircraft by Substitute Aircraft. Upon the satisfaction of the conditions
set forth above with respect to a Substitute Aircraft, the New Aircraft to be
replaced shall cease to be subject to this Agreement and all rights and
obligations of the parties hereto concerning such New 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 New Aircraft.
(h) The Company shall have no liability for the failure of the Pass
Through Trustee to purchase Equipment Notes with respect to any Aircraft or
Substitute Aircraft.
(i) The parties agree that if, in connection with the financing of a
New Aircraft or Substitute Aircraft, any Owner Participant who is to be a party
to any Financing Agreement shall be a "Citizen of the United States" within the
meaning of Section 40102(a)(15) of the Act, then the applicable Financing
Agreements may be modified, consistent with the Mandatory Document Terms, to
eliminate the restrictions on the Owner Participant's right to control the Owner
Trustee and to make other customary changes to reflect that the Owner
Participant is a "Citizen of the United States".
(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 to the 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 Deposit Agreement.
SECTION 2. CONDITIONS PRECEDENT. The obligation of the Pass Through
Trustee 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; and
(b) the Company shall have delivered a certificate to such Pass
Through Trustee and the Liquidity Providers 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 Certificateholders, and such
certification shall be true and correct.
Anything herein to the contrary notwithstanding, the obligation of
the 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 the 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, the Deposit Agreement and the 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) [Intentionally omitted.]
(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 Owner Trustee
(and the Loan Trustee as assignee of the Owner Trustee's rights under each
Lease) to the rights afforded to lessors of aircraft equipment under Section
1110;
(iv) Section 13.2.1 of each Lease 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.
(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 Trust Indenture then entered
into, resign as Loan Trustee in respect of such Trust Indenture.
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.
SECTION 6. EXPENSES. (a) The Company agrees to pay to the
Subordination Agent when due, to the extent not paid when due by the
Manufacturer, an amount or amounts equal to the fees payable to the Liquidity
Providers under Section 2.03 of each 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 Agreement and the denominator of which shall be the
sum of (x) the then outstanding aggregate principal amount of the Equipment
Notes issued under all of the Trust Indentures and (y) the then outstanding
aggregate amount of the Deposits under the Deposit Agreement.
(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, to
the extent not paid when due by the Manufacturer, (A) the amount equal to
interest on any Downgrade Advance (other than any Applied Downgrade Advance)
payable under Section 3.07 of each Liquidity Facility minus Investment Earnings
while such Downgrade Advance shall be outstanding, (B) the amount equal to
interest on any CNAI Special Termination Advance (other than any Applied CNAI
Special Termination Advance) payable under Section 3.07 of the CNAI Liquidity
Facility minus Investment Earnings from such CNAI Special Termination Advance,
(C) the amount equal to interest on any WestLB Expiration Advance (other than
any Applied WestLB Expiration Advance) payable under Section 3.07 of the WestLB
Liquidity Facility minus Investment Earnings from such WestLB Expiration
Advance; (D) the amount equal to interest on any Non-Extension Advance (other
than any Applied Non-Extension Advance) payable under Section 3.07 of the CNAI
Liquidity Facility minus Investment Earnings from such Non-Extension Advance;
(E) the amount equal to interest on any WestLB Early Termination Advance (other
than any Applied WestLB Early Termination Advance) payable under Section 3.07 of
the WestLB Liquidity Facility minus Investment Earnings from such WestLB Early
Termination Advance; (F) any other amounts owed to the Liquidity Providers by
the Subordination Agent as borrower under the Liquidity Facilities (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 and (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.
For purposes of this Section 6(b), (i) the terms "Applied Downgrade Advance",
"Cash Collateral Account", "Downgrade Advance", "Final Advance", "Investment
Earnings" and "Unpaid Advance" shall have the meanings specified in each
Liquidity Facility, (ii) the terms "Applied WestLB Early Termination Advance",
"Applied WestLB Expiration Advance", "West LB Expiration Advance" and "WestLB
Early Termination Advance" shall have the meanings specified in the WestLB
Liquidity Facility and (iii) the terms "Applied Non-Extension Advance", "Applied
CNAI Special Termination Advance", "Non-Extension Advance" and "CNAI Special
Termination Advance" shall have the meanings specified in the CNAI Liquidity
Facility.
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 Agreement, 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.
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, XXXXX
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: MAC: U1228-120
000 Xxxxx Xxxx Xxxxxx
00xx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Corporate Trust
Services
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
AIRCRAFT
PART A - EXISTING AIRCRAFT
Registration Manufacturer's Scheduled
Number Serial Number Delivery Month
------------------- ------------------ -------------------
N11155 145782 Previously
Delivered
N10156 145786 Previously
Delivered
N12157 145787 Previously
Delivered
N14158 145791 Previously
Delivered
N17159 145792 Previously
Delivered
N12160 145799 Previously
Delivered
N13161 14500805 Previously
Delivered
N14162 14500808 Previously
Delivered
N12163 14500811 Previously
Delivered
N11164 14500817 Previously
Delivered
N11165 14500819 Previously
Delivered
PART B - NEW AIRCRAFT
N12166 14500831 July 2004
N12167 14500834 July 2004
N14168 14500840 August 2004
N17169 14500844 August 2004
N16170 14500850 September 2004
SCHEDULE II to
NOTE PURCHASE AGREEMENT
TRUST SUPPLEMENT
Trust Supplement dated as of the Issuance Date between the Company and the Pass
Through Trustee in respect of the Continental Airlines Class A Pass Through
Trust, Series 2004-ERJ1.
Schedule III to
NOTE PURCHASE AGREEMENT
MANDATORY ECONOMIC TERMS
o The aggregate principal amount of the Equipment Notes issued with
respect to an Aircraft shall not exceed the amounts set forth in the
following table:
AIRCRAFT
REGISTRATION MANUFACTURER'S PRINCIPAL AMOUNT
NUMBER SERIAL NUMBER OF EQUIPMENT NOTES
------------ -------------- ------------------
N11155 145782 $10,745,972
N10156 145786 10,686,554
N12157 145787 10,692,100
N14158 145791 10,571,853
N17159 145792 10,598,759
N12160 145799 10,926,373
N13161 14500805 11,062,500
N14162 14500808 11,348,468
N12163 14500811 10,748,893
N11164 14500817 10,822,420
N11165 14500819 11,013,029
N12166 14500831 11,096,335
N12167 14500834 11,096,335
N14168 14500840 11,149,043
N17169 14500844 11,152,077
N16170 14500850 11,150,989
o The Loan to Aircraft Value for the Equipment Notes issued for each
Aircraft computed on the date of issuance thereof (with value for
such Aircraft for these purposes initially equal to its value set
forth under "Description of the Aircraft and the Appraisals--The
Appraisals" in the column "Appraised Value" in the Prospectus
Supplement and thereafter based on such value after giving effect to
the Depreciation Assumption (as defined in the Prospectus
Supplement)) as of the issuance date of such Equipment Notes and any
Regular Distribution Date thereafter (assuming no default in the
payment of the Equipment Notes and after giving effect to scheduled
payments) will not exceed 56.5%.
o The initial average life of the Equipment Notes for any Aircraft
shall not extend beyond 10 years from the Issuance Date.
o As of the Delivery Period Termination Date, the average life of the
Certificates shall not be more than 9.8 years 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).
o The final expected distribution date of the Certificates shall be as
set forth on the cover page of the Prospectus Supplement.
o The original aggregate principal amount of all of the Equipment
Notes shall not exceed the original aggregate face amount of the
Certificates.
o The interest rate applicable to the Equipment Notes must be equal to
the rate applicable to the Certificates.
o The payment dates for the Equipment Notes must be on the first day
of each month after July 1, 2004, and basic rent under the Leases
must be payable on such dates.
o Basic rent, stipulated loss values and termination values under the
Leases must be sufficient to pay amounts due with respect to the
related Equipment Notes.
o The amounts payable under the all-risk aircraft hull insurance
maintained with respect to each Aircraft must be sufficient to pay
the applicable stipulated loss value, subject to certain rights of
self-insurance.
o (a) The past due rate in the Trust Indentures and the Leases, (b)
the "Make-Whole Amount" payable under the Trust Indentures, (c) the
provisions relating to the redemption and purchase of Equipment
Notes in the Trust Indentures, (d) the minimum liability insurance
amount on Aircraft in the Leases, and (e) the indemnification of the
Loan Trustees, Subordination Agent, Liquidity Providers, Pass
Through Trustee, Escrow Agent and registered holders of the
Equipment Notes with respect to certain taxes and expenses, in each
case shall be provided as set forth in the forms of Participation
Agreements, Lease and Trust Indentures attached as exhibits to the
Note Purchase Agreement.
SCHEDULE IV TO
NOTE PURCHASE AGREEMENT
MANDATORY DOCUMENT TERMS
The terms "Form of Participation Agreement" "Form of Lease" and "Form of Trust
Indenture" correspond to Exhibits A, B and C of the Note Purchase Agreement.
1. May not modify in any material adverse respect the Granting Clause of the
Form of Trust Indenture so as to deprive the Note Holders of a first
priority security interest in and mortgage lien on the Aircraft and the
Lease 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 4.02, 4.03, 4.04,
5.02, 5.06, 9.01(b), 10.04, 10.11 or 10.12 of the Form of Trust 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 3.2.1(b), 3.3(c), 4.7, the final
sentence of 7.1.1, 10.3.1(d)(ii), 13.3, 16, 18.3 or 18.7(a) of the Form of
Lease or otherwise modify the terms of the Form of Lease so as to deprive
the Mortgagee of rights expressly granted to the "Mortgagee" therein.
3. 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 5.1.9, 5.1.10, 5.1.11, 5.1.12, 7.5,
12, 15.8(a) or 15.9 of the Form of Participation Agreement or of the
provisions of Section 5.1.2(xxv) or 10.1.1(a)(iv) of the Form of
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 7.6.11(a)(ii) of the Form of Participation Agreement as regards
the rights of the Mortgagee thereunder or otherwise modify the terms of
the Form of Participation Agreement to deprive the Note Holders, the
Subordination Agent, the Liquidity Providers or the Mortgagee of any
indemnity or right of reimbursement in its favor for Expenses or Taxes.
4. 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 definition of "Make Whole Amount" in Annex A to the
Participation Agreement Form.
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.
ANNEX A to
NOTE PURCHASE AGREEMENT
DEFINITIONS
"ACT" means part A of subtitle VII of title 49, United States Code.
"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" has the meaning set forth in the second recital to the Note Purchase
Agreement.
"ASSUMED AMORTIZATION SCHEDULE" means the amortization schedule set forth on
page S-32 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.
"BANKRUPTCY CODE" means the United States Bankruptcy Code, 11 U.S.C. xx.xx. 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 the
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 fourth recital to the Note
Purchase Agreement.
"CERTIFICATEHOLDER" means the Person in whose name a Certificate is registered
in the Register.
"COMPANY" means Continental Airlines, Inc., a Delaware corporation.
"CORPORATE TRUST OFFICE" with respect to the 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) December 31, 2004,
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 Trustee 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, March 31, 2005 and (b) the
date on which Equipment Notes issued with respect to all of the Aircraft (or
Substitute Aircraft in lieu thereof) have been purchased by the Pass Through
Trustee 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.
"DELIVERY NOTICE" means a Delivery Notice substantially in the form of Exhibit F
to the Note Purchase Agreement.
"DEPOSIT" has the meaning set forth in the sixth recital to the Note Purchase
Agreement.
"DEPOSIT AGREEMENT" has the meaning set forth in the sixth recital to the Note
Purchase Agreement.
"DEPOSITARY" means WestLB AG, New York Branch.
"EQUIPMENT NOTES" means and includes any equipment notes issued under any Trust
Indenture in the form specified in Section 2.01 thereof (as such form may be
varied pursuant to the terms of such Trust Indenture) and any Equipment Note
issued under any Trust 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 AGENT AGREEMENTS" has the meaning set forth in Section 3(e)(i) of the
Note Purchase Agreement.
"ESCROW AND PAYING AGENT AGREEMENT" has the meaning set forth in the fifth
recital to the Note Purchase Agreement.
"EXISTING AIRCRAFT" has the meaning set forth in the second recital to the Note
Purchase Agreement.
"EXISTING LEASES" has the meaning set forth in the second recital to the Note
Purchase Agreement.
"FAA" means the Federal Aviation Administration of the United States.
"FINAL WITHDRAWAL" with respect to the Escrow and Paying Agent Agreement, has
the meaning set forth in Section 1.02 thereof.
"FINANCING AGREEMENTS" means, collectively, the Purchase Agreement Assignment,
the Initial Purchase Agreement Assignment (if a New Aircraft), the Participation
Agreement, the Lease, the Trust Indenture, the Equipment Notes issued
thereunder, and the Trust Agreement relating to the financing of an Aircraft.
"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.
"INITIAL DEPOSITS" has the meaning set forth in the sixth recital to the Note
Purchase Agreement.
"INITIAL PURCHASE AGREEMENT ASSIGNMENT" means a Purchase Agreement Assignment
substantially in the form of Exhibit D-2 to the Note Purchase Agreement.
"INTERCREDITOR AGREEMENT" has the meaning set forth in the ninth 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.
"LEASE" means a Lease Agreement substantially in the form of Exhibit B to the
Note Purchase Agreement.
"LIQUIDITY FACILITIES" has the meaning set forth in the ninth recital to the
Note Purchase Agreement.
"LIQUIDITY PROVIDERS" has the meaning set forth in the ninth recital to the Note
Purchase Agreement.
"LOAN TRUSTEE" means the "Mortgagee" as defined in the Financing Agreements.
"MANDATORY DOCUMENT TERMS" means the terms set forth on Schedule IV to the Note
Purchase Agreement.
"MANDATORY ECONOMIC TERMS" means the terms set forth on Schedule III to the Note
Purchase Agreement.
"MANUFACTURER" means Embraer-Empresa Brasileira de Aeronautica S.A., a Brazilian
corporation, solely in its capacity as manufacturer or seller of the 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 the Deposit Agreement, has the
meaning set forth in Section 2.3 thereof.
"OPERATIVE AGREEMENTS" means, collectively, the Pass Through Trust Agreement,
the Escrow and Paying Agent Agreement, the Deposit Agreement, the Liquidity
Facilities, the Intercreditor Agreement, the Certificates and the Financing
Agreements.
"OWNER PARTICIPANT" means, with respect to any Aircraft, the Person named as the
Owner Participant in the Participation Agreement with respect to such Aircraft.
"OWNER TRUST" means, with respect to any Aircraft, the trust created by the
Trust Agreement related thereto.
"OWNER TRUSTEE" means, with respect to any Aircraft, the "Owner Trustee" party
to the Trust Agreement related thereto.
"PARTICIPATION AGREEMENT" means a Participation Agreement substantially in the
form of Exhibit A to the Note Purchase Agreement.
"PASS THROUGH TRUST" has the meaning set forth in the fourth recital to the Note
Purchase Agreement.
"PASS THROUGH TRUST AGREEMENT" means the Trust Supplement, together with the
Basic Pass Through Trust Agreement, 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.
"PAYING AGENT AGREEMENTS" has the meaning set forth in Section 3(f)(i) 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.
"PROSPECTUS SUPPLEMENT" means the final Prospectus Supplement, dated June 18,
2004, to the Prospectus, dated August 23, 2001, of the Company relating to the
offering of the Certificates.
"PURCHASE AGREEMENT" means the Purchase Agreement GPJ-003/96 between
Manufacturer and ExpressJet Airlines, Inc. (formerly Continental Express, Inc.)
(including all exhibits thereto, together with all letter agreements entered
into that by their terms constitute part of such Purchase Agreement), as
amended.
"PURCHASE AGREEMENT ASSIGNMENT" means a Purchase Agreement Assignment
substantially in the form of Exhibit D-1 to the Note Purchase Agreement (for an
Existing Aircraft) or Exhibit D-3 to the Note Purchase Agreement (for a New
Aircraft).
"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 that (a) the use of such Financing
Agreement with such modifications or (b) the substituting of such Substitute
Aircraft for a New Aircraft, respectively, would not result in (i) a reduction
of the rating for the Certificates below the then current rating for the
Certificates or (ii) a withdrawal or suspension of the rating of the
Certificates.
"REGISTER" means the register maintained pursuant to Sections 3.04 and 7.12 of
the Basic Pass Through Trust Agreement with respect to the Pass Through Trust.
"REGULAR DISTRIBUTION DATE" shall mean the first day of each month, commencing
August 1, 2004.
"REMAINING WEIGHTED AVERAGE LIFE" means, on a given date with respect to any
Equipment Note, 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.
"SCHEDULED CLOSING DATE" has the meaning set forth in Section 1(b) 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.
"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.
"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 monthly 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 AGREEMENT" means a Trust Agreement substantially in the form of Exhibit E
to the Note Purchase Agreement.
"TRUST INDENTURE" means a Trust Indenture and Mortgage substantially in the form
of Exhibit C to the Note Purchase Agreement.
"TRUST SUPPLEMENT" means an agreement supplemental to the Basic Pass Through
Trust Agreement pursuant to which (i) a trust is created for the benefit of the
holders of the Certificates, (ii) the issuance of the Certificates representing
fractional undivided interests in such trust is authorized and (iii) the terms
of the Certificates are established.
"UNDERWRITERS" has the meaning set forth in the fifth recital to the Note
Purchase Agreement.
"UNDERWRITING AGREEMENT" has the meaning set forth in the fifth 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 PARTICIPATION AGREEMENT
(Filed Separately)
EXHIBIT B to
NOTE PURCHASE AGREEMENT
FORM OF LEASE
(Filed Separately)
EXHIBIT C to
NOTE PURCHASE AGREEMENT
FORM OF TRUST INDENTURE
(Filed Separately)
EXHIBIT D-1 to
NOTE PURCHASE AGREEMENT
FORM OF PURCHASE AGREEMENT ASSIGNMENT
(EXISTING AIRCRAFT)
AMENDED AND RESTATED
PURCHASE AGREEMENT ASSIGNMENT NO. 2 - [DEAL_]
AMENDED AND RESTATED PURCHASE AGREEMENT ASSIGNMENT NO. 2 - [Deal_],
dated as of June ___, 2004 (this "Restated Assignment"), between PM Limited, a
Cayman Islands company (the "Assignor" or "PM Limited"), XXXXX FARGO BANK
NORTHWEST, NATIONAL ASSOCIATION, not in its individual capacity but solely as
Owner Trustee (the "Assignee"), and EXPRESSJET AIRLINES, INC., a Delaware
corporation ("Express"), which amends and restates in its entirety the Original
PAA No. 2 (as hereinafter defined).
RECITALS
WHEREAS, Express and EMBRAER-Empresa Brasileira de Aeronautica S.A., a
corporation organized under the laws of Brazil ("Embraer"), have entered into
the Purchase Agreement, pursuant to which, among other things, Embraer has
agreed to manufacture and sell to Express, and Express has agreed to purchase
from Embraer, certain aircraft, including the Aircraft (as defined in the
Purchase Agreement Assignment No. 1 described below);
WHEREAS, pursuant to a Purchase Agreement Assignment No. 1 - [Deal_],
dated as of [Initial_Delivery_Date] ("PAA No. 1"), between Express and PM
Limited, Express has, among other things, heretofore assigned to PM Limited,
with the consent of the Manufacturer, certain of its right, title and interest
in, to and under the Purchase Agreement including, without limitation, the right
to purchase the Aircraft from Embraer upon and subject to the terms and
conditions set forth in the Purchase Agreement and PAA No.
1;
WHEREAS, PM Limited has heretofore purchased the Aircraft from Embraer
and, concurrently therewith, has heretofore sold the Aircraft to Xxxxx Fargo
Bank Northwest, National Association, acting not in its individual capacity but
solely as Owner Trustee under the Trust Agreement [Deal_], dated as of
[Initial_Delivery_Date] (the "Original Trust Agreement"), between Refine,
Inc., as Owner Participant (the "Owner Participant"), and Xxxxx Fargo Bank
Northwest, National Association ("Xxxxx Fargo"), as amended and restated in its
entirety by that certain Amended and Restated Trust Agreement [Deal_], dated
as of the date hereof, between the Owner Participant and Xxxxx Fargo (the
Original Trust Agreement, as so amended and restated, the "Amended and Restated
Trust Agreement");
WHEREAS, in connection with the sale of the Aircraft by PM Limited to the
Owner Trustee and with the consent of the Manufacturer, PM Limited has, pursuant
to the Purchase Agreement Assignment No. 2-[Deal_], dated as of
[Initial_Delivery_Date] (the "PAA No. 2"), between PM Limited and the Owner
Trustee, heretofore transferred to the Owner Trustee all of PM Limited's present
and future rights, title, obligations and interests in, to and under the
Purchase Agreement as assigned by PAA No. 1, except for PM Limited's right to
purchase the Aircraft from the Manufacturer pursuant to Section 2(a) of PAA No.
1;
WHEREAS, the Owner Trustee desires to (i) issue Equipment Notes (as
defined in Annex A to the Lease Agreement referred to herein) for the purpose of
enabling the Owner Participant to repay, in part, the indebtedness relating to
the acquisition of the Aircraft by the Owner Trustee, (ii) terminate the Lease
Agreement [Deal_], dated as of the date of PAA No. 1 (the "Existing Lease"),
between the Owner Trustee and Continental Airlines, Inc. ("Continental"), in
connection therewith and (iii) re-lease the Aircraft to Continental pursuant to
the Lease Agreement (as hereinafter defined); and
WHEREAS, to facilitate the transactions described in the immediately
preceding Whereas clause, PM Limited and the Assignee desire to amend and
restate in its entirety PAA No. 2 on the terms and conditions hereof, Express
desires to agree to the terms and provisions hereof and to certain changes to
PAA No. 1, as provided herein, and the Manufacturer is willing to execute and
deliver to the Assignee a Consent and Agreement to the provisions hereof in
substantially the form attached hereto as Annex 1;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements of the parties contained herein, and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Assignor and the Assignee hereby agree to amend and restate
PAA No.2 in its entirety upon the terms set forth herein, and the parties hereto
further agree as follows:
Section 1. DEFINITIONS. Capitalized terms used but not defined herein
shall have the respective meanings set forth or incorporated by reference, and
shall be construed and interpreted in the manner described, in PAA No. 1.
Section 2. TRANSFER AND ASSUMPTION. The Assignor does hereby sell, assign
and transfer to the Assignee all of the Assignor's present and future rights,
title, obligations and interest in, to and under the Purchase Agreement as
assigned by PAA No. 1, excluding the right to purchase the Aircraft from the
Manufacturer (the "Assignor's Interest") and the Assignee hereby accepts the
Assignor's Interest from the Assignor. The Assignee agrees that it shall be
bound by all the terms of, and shall assume and undertake to perform all the
obligations of, the Assignor with respect to the Assignor's Interest. For all
purposes of PAA No. 1 and this Restated Assignment, Express, the Assignor and
the Assignee hereby agree that:
(I) the "Lease" or "Lease Agreement" referred to in PAA No. 1 shall
be deemed to refer to the Lease Agreement [Deal_], dated as of the date
hereof (as the same may be amended, modified or supplemented, the "Lease
Agreement"), between the Owner Trustee and Continental, providing for the
lease of the Aircraft;
(II) the Participation Agreement referred to in Paragraph 4 of PAA
No. 1 shall be deemed to refer to the Participation Agreement defined in
Annex A to the Existing Lease;
(III) Continental, in lieu of Express, shall have the rights
referred to in clause (iii)(B) of the first paragraph of Section 2 of PAA
No. 1 after notice by Continental to the Manufacturer that Continental is
entitled to possession of the Aircraft;
(IV) Continental, in lieu of Express, shall be entitled to exercise
the rights of Express under the second paragraph of Section 2 of PAA No. 1
after notice by Continental to the Manufacturer that Continental is
entitled to possession of the Aircraft; and
(V) the Manufacturer shall not be deemed to have knowledge of, and
need not recognize nor take any action with respect to, the termination of
Express's rights under PAA No. 1 by Continental to the extent permitted
hereunder or thereunder unless and until the Manufacturer shall have
received from Continental, as required by the terms of this Restated
Assignment, written notice (including notice by fax) thereof and, in
acting in accordance with the terms and conditions of the Purchase
Agreement and this Restated Assignment and PAA No. 1, the Manufacturer may
act in accordance with and conclusively rely upon any such notice.
Section 3. CONFIDENTIAL TREATMENT. The Assignee and the Assignor agree
that the provisions of Paragraph 8 of PAA No. 1 are hereby terminated and
superseded by the provisions of this Section 3 and, in furtherance thereof,
agree that they will not disclose to any third party (other than their direct
and indirect parent companies) the terms of the Purchase Agreement (whether or
not related to the Aircraft) or PAA No. 1 or this Restated Assignment, except
(a) as required by applicable law, judicial proceeding or governmental
regulation, (b) in the case of the Assignee, as required for the assignment of
its rights under this Restated Assignment in accordance with the provisions of
Article 16 of the Purchase Agreement, (c) with the prior written consent of
Express, the Assignor and the Manufacturer, which consent shall not be
unreasonably withheld with respect to a prospective bona fide purchaser of the
Aircraft, (d) to prospective and permitted transferees of Owner Participant's
interest or their or Owner Participant's respective counsel or special counsel,
independent insurance brokers, auditors, or other agents, (e) as otherwise
permitted by the Operative Agreements (as defined in Annex A to the Lease), or
(f) to such other Persons as are reasonably deemed necessary by the disclosing
party for the purposes of enforcing such documents by such party; PROVIDED that
any such disclosure under this sentence shall be made only to the extent
necessary to meet the specific requirements or needs of the Assignee or PM
Limited, as the case may be. Any disclosure as contemplated in (b), (c) or (d)
above shall include a requirement that the entity to which the information is
disclosed shall be subject to obligations of nondisclosure with respect to such
information substantially the same as those contained herein.
Section 4. ASSIGNMENT TO MORTGAGEE. The right, title and interest of the
Assignee in and to this Restated Assignment has, contemporaneously with the
execution and delivery hereof, been assigned to and is subject to a security
interest in favor of the Mortgagee (as such terms and the other capitalized
terms used hereinafter in this sentence are defined in Appendix A to the Lease)
under the Trust Indenture, for the benefit of the Loan Participants and the Note
Holders referred to the Trust Indenture, all to the extent provided in such
Trust Indenture. The Assignor hereby consents to such assignment and to the
creation of such security interest in and to this Restated Assignment.
Section 5. NOTICES. Any notices provided for in PAA No. 1 shall be
delivered to the Assignee at the following address or such other place as the
Assignee may designate in accordance with PAA No. 1:
Xxxxx Fargo Bank Northwest,
National Association
MAC: U1228-120
Attn: Corporate Trust Dept.
000 X. Xxxx Xxxxxx, 00xx Xxxxx
Xxxx Xxxx Xxxx, XX 00000
Facsimile: 000-000-0000
Section 6. HEADINGS. The headings of the Sections herein are for
convenience of reference only and shall not define or limit any of the terms
or provisions hereof.
Section 7. GOVERNING LAW. THIS RESTATED ASSIGNMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, UNITED
STATES OF AMERICA, WITHOUT REGARD TO CONFLICT OF LAWS RULES OTHER THAN SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
Section 8. COUNTERPARTS. This Agreement and any amendments, waivers,
consents or supplements hereto may be executed in any number of counterparts (or
upon separate signature pages bound together into one or more counterparts),
each of which when so executed shall be deemed to be an original, and all of
which counterparts, taken together, shall constitute one and the same
instrument.
Section 9. PURCHASE AGREEMENT. The rights and obligations of the parties
hereto are subject to the terms and conditions of the Purchase Agreement.
[Remainder of the Page is Intentionally Left Blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Restated
Assignment to be duly executed as of the day and year first written above.
PM LIMITED, as Assignor
By:
-----------------------------------
Name:
Title:
XXXXX FARGO BANK
NORTHWEST, NATIONAL
ASSOCIATION, not in its
individual capacity but solely as
Owner Trustee, as Assignee
By:
-----------------------------------
Name:
Title:
EXPRESSJET AIRLINES, INC.
By:
-----------------------------------
Name:
Title:
Annex 1 to Amended
and Restated Purchase
Agreement Assignment No. 2 - [Deal_]
CONSENT AND AGREEMENT NO. 2 - [DEAL_]
The undersigned, EMBRAER-EMPRESA BRASILEIRA DE AERONAUTICA S.A., a
corporation organized and existing under the laws of Brazil, hereby acknowledges
notice of and consents to all of the terms of the foregoing Amended and Restated
Purchase Agreement Assignment No. 2 - [Deal_], dated as of ________ ___, 2004,
by and among PM Limited, XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, not
in its individual capacity but solely as Owner Trustee, and EXPRESSJET AIRLINES,
INC., to the extent they relate to the Manufacturer (herein called the
"Assignment No. 2", the defined terms therein being hereinafter used with the
same meaning) and hereby confirms to the Assignee that: (i) all representations,
warranties, indemnities and agreements of the Manufacturer under the Purchase
Agreement with respect to the Aircraft shall inure to the benefit of the
Assignee to the same extent as if originally named the "Buyer" therein, subject
to the terms and conditions of the Assignment No. 2, the Purchase Agreement and
PAA No. 1; (ii) the Assignee shall not be liable for any of the obligations or
duties of Express under the Purchase Agreement, nor shall the Assignment No. 2
give rise to any duties or obligations whatsoever on the part of the Assignee
owing to the Manufacturer except for the Assignee's agreement to the effect that
in exercising any rights under the Purchase Agreement, or in making any claim
with respect to the Aircraft or other things (including without limitation data,
documents and services) delivered or to be delivered pursuant to the Purchase
Agreement, the terms and conditions of the Purchase Agreement shall apply to and
be binding upon the Assignee to the same extent as if the Assignee had been the
original "Buyer" thereunder, and with respect to such agreement the Manufacturer
agrees that, anything contained in the Purchase Agreement or the Assignment No.
2 to the contrary notwithstanding, so long as the Manufacturer shall not have
received notice that a Lease Event of Default has occurred and is continuing,
the Assignee shall not have any responsibility to the Manufacturer for failure
to comply with any of the terms of the Purchase Agreement with respect to the
Aircraft while under lease to Continental so long as the Assignee acts upon the
written instructions of Express (or, if Continental shall have specified in a
written notice to the Assignee and the Manufacturer that Continental is entitled
to possession of the Aircraft, Continental) (to which instructions the
Manufacturer understands it shall have access on request); PROVIDED that no
person other than the Manufacturer shall have any rights against the Assignee
with respect to the undertaking and agreement set forth in this clause (ii);
(iii) the Manufacturer will continue to pay to Express (or, if Continental shall
have specified in a written notice to the Assignee and the Manufacturer that
Continental is entitled to possession of the Aircraft, Continental) all payments
which the Manufacturer may be required to make in respect of the Aircraft under
the Purchase Agreement unless and until the Manufacturer shall have received
written notice addressed to its Contracts Administrator, by mail to
EMBRAER-Empresa Brasileira de Aeronautica S.A., Xx. Xxxxxxxxxx Xxxxx Xxxx, 0000,
12.227-901 Sao Xxxx dos Xxxxxx-SP, Brazil, or by fax to fax no: 00 00-0000-0000,
that a Lease Event of Default has occurred and is continuing (which such notice
from the Assignee shall be conclusive proof thereof to the Manufacturer and as
to which the Manufacturer shall have no obligation to inquire), whereupon the
Manufacturer will, until the Manufacturer shall have received notice in writing
sent or addressed as aforesaid that no Lease Event of Default exists, make any
and all payments and take any and all actions which it may be required
thereafter to make or take in respect of the Aircraft under the Purchase
Agreement and the right to receive which has been assigned under the Assignment
No. 2 directly to the Assignee at its address at MAC: U1228-120, 000 X. Xxxx
Xxxxxx, 00xx Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000 , telecopy no. 000-000-0000; (iv)
from and after the delivery of the Aircraft on the Delivery Date, the
Manufacturer will not assert any lien or claim against the Aircraft or any part
thereof arising with respect to or in connection with any work or other services
performed before the delivery and acceptance of the Aircraft; and (v) the
Manufacturer consents to the grant of a security interest in the Purchase
Agreement pursuant to the Trust Indenture (as defined in Appendix A to the
Lease).
The Manufacturer hereby represents and warrants that (A) the Manufacturer
is a corporation duly organized and existing in good standing under the laws of
Brazil, (B) the making and performance of the Purchase Agreement have been duly
authorized by all necessary corporate action on the part of the Manufacturer, do
not require any stockholder approval, do not contravene the Manufacturer's
By-Laws or any indenture, credit agreement or other contractual agreement to
which the Manufacturer is a party or by which it is bound, and the making of the
Purchase Agreement does not contravene any law binding on the Manufacturer, (C)
the making and performance of this Consent and Agreement have been duly
authorized by all necessary corporate action on the part of the Manufacturer, do
not require any stockholder approval and do not contravene any law binding on
the Manufacturer or contravene the Manufacturer's By-laws or any indenture,
credit agreement or other contractual agreement to which the Manufacturer is a
party or by which it is bound, (D) the Purchase Agreement constituted as of the
date thereof and at all times thereafter to and including the date of this
Consent and Agreement constitutes a binding obligation of the Manufacturer
enforceable against the Manufacturer in accordance with its terms subject to:
(i) the limitations of applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally) and (ii)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and (E) this Consent and
Agreement is a binding obligation of the Manufacturer enforceable against the
Manufacturer in accordance with its terms subject to: (a) the limitations of
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally; and (b) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law). It is understood that the execution by the Manufacturer of
this Consent and Agreement is subject to the condition that concurrently with
execution and delivery hereof the Aircraft will be leased to Continental under
the Lease Agreement.
[The remainder of this page has been left blank intentionally.]
This Consent and Agreement shall be governed by the laws of the State of
New York, including all matters of construction, validity and performance, as
applicable to contracts between citizens of the state to be performed wholly
within that state, and without regard to conflicts of law rules other than
Section 5-1401 of the New York General Obligations Law.
Dated as of _______ ___, 2004.
EMBRAER-EMPRESA BRASILEIRA
DE AERONAUTICA S.A.
By
----------------------------------
Title:
By
----------------------------------
Title:
EXHIBIT D-2 to
NOTE PURCHASE AGREEMENT
FORM OF INITIAL PURCHASE AGREEMENT ASSIGNMENT
(NEW AIRCRAFT)
PURCHASE AGREEMENT ASSIGNMENT NO. 1-[DEAL]
This PURCHASE AGREEMENT ASSIGNMENT NO. 1-[DEAL] (the
"Assignment"), dated as of _______ ___, 2004, is between EXPRESSJET
AIRLINES, INC., a Delaware corporation (the "Assignor"), and PM Limited, a
Cayman Islands company (the "Assignee").
WHEREAS, the Assignor and the Manufacturer (as hereinafter defined)
are parties to the Purchase Agreement (as hereinafter defined) providing, among
other things, for the manufacture and sale by the Manufacturer to the Assignor
of certain aircraft, engines and related equipment, including the Aircraft (as
hereinafter defined), and the Aircraft is covered by the Lease Agreement (as
hereinafter defined).
WHEREAS, the Assignee wishes to acquire the Aircraft from the
Manufacturer, and the Assignor, on the terms and conditions hereinafter set
forth, is willing to assign to the Assignee certain of the Assignor's rights and
interests under the Purchase Agreement, and the Assignee is willing to accept
such assignment, as hereinafter set forth.
WHEREAS, the Manufacturer is willing to execute and deliver to
Assignee a Consent and Agreement to the provisions hereof in substantially the
form attached hereto as Annex 1.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. For all purposes of this Assignment, except as otherwise
expressly provided or unless the context otherwise requires, the following terms
shall have the following meanings:
AIRCRAFT. The Embraer Model EMB-145 XR aircraft to be delivered
under the Purchase Agreement bearing Manufacturer's Serial No. [_________] and
U.S. Registration Xxxx [N______] (as hereinafter defined), with two Xxxxxxx
AE3007A1E engines installed on such aircraft on the date of delivery therefor,
together with the equipment, components and accessories installed thereon
pursuant to the Purchase Agreement.
LEASE OR LEASE AGREEMENT. The Lease Agreement dated as of the date
hereof as the same may be amended, modified or supplemented, between Xxxxx Fargo
Bank Northwest, National Association, not in its individual capacity but solely
as Owner Trustee, as lessor, and Continental Airlines, Inc. ("CAL"), as lessee,
providing for the lease of the Aircraft.
MANUFACTURER. EMBRAER-Empresa Brasileira de Aeronautica S.A., a
corporation organized and existing under the laws of Brazil, and its successors
and assigns.
PURCHASE AGREEMENT. Purchase Agreement No. GPJ-003/96, dated August
5, 1996 as the same may be amended, supplemented or otherwise modified from time
to time in accordance with its terms, between the Manufacturer and the Assignor
(formerly known as Continental Express, Inc.) solely with respect to Articles 1,
2(a), 3(a), 4(a), 5(a), 6, 7(a) and (c), 12(a), 15, 17, 19, 20, 21, 24, 25, 26,
27, 28, 29 and 30 thereof, and Attachment C thereto providing, among other
things, for the manufacture and sale by the Manufacturer to the Assignor (or its
designee) of the airframe, Xxxxxxx AE3007A1E engines and parts installed
thereon.
All terms used herein in capitalized form which are defined in the
Lease and not otherwise defined herein shall, when used herein, have the
meanings specified in Annex A to the Lease.
2. Subject to the terms and conditions of this Assignment, Assignor
does hereby sell, assign, transfer and set over unto the Assignee all the
Assignor's rights and interest in and to the Purchase Agreement as and to the
extent that the same relate to the Aircraft and the purchase and operation
thereof, except to the extent reserved below, including, without limitation, (a)
the right upon valid tender by the Manufacturer to purchase the Aircraft
pursuant to the Purchase Agreement (including the right to accept delivery of
such Aircraft, such right of acceptance to be exercised by a representative of
the Assignor authorized by the Assignee and designated by the Assignor pursuant
to Section 2.2(b) of the Lease), and the right to take title to the Aircraft and
to be named the buyer in the xxxx of sale to be delivered by the Manufacturer
for the Aircraft pursuant to Article 7(c) of the Purchase Agreement, (b) all
claims for damages in respect of the Aircraft arising as a result of any default
by the Manufacturer under the Purchase Agreement or any supplier of parts or
equipment installed on or in the Aircraft, including, without limitation, all
warranty and indemnity provisions contained in the Purchase Agreement, and all
claims arising thereunder, in respect of the Aircraft, and (c) any and all
rights of the Assignor to compel performance of the terms of the Purchase
Agreement in respect of the Aircraft; RESERVING TO THE ASSIGNOR HOWEVER, (i) all
the Assignor's rights and interests in and to the Purchase Agreement to the
extent the same relates to aircraft other than the Aircraft and the purchase and
operation of such aircraft and to the extent it pertains to any other matters
not directly pertaining to the Aircraft, and (ii) all the Assignor's rights and
obligations with respect to any post-delivery adjustment of the purchase price
of the Aircraft (and any other payments made or to be made by the Assignor in
respect of such Aircraft under the Purchase Agreement or amounts credited or to
be credited by the Manufacturer to the Assignor, PROVIDED that Assignor shall
obtain no additional rights in or to the Aircraft or any part thereof by reason
of making any such payment), and (iii) with respect to the Aircraft so long as
the Aircraft is subject to the Lease (A) the rights to demand, accept and retain
all rights in and to all property (other than the Aircraft), data and service
related to the Aircraft which the Manufacturer is obligated to provide or does
provide pursuant to the Purchase Agreement, and (B) the right to obtain
services, training, data and demonstration and test flights related to the
Aircraft pursuant to the Purchase Agreement (provided that after reasonable
prior notice by CAL to Manufacturer, CAL shall be entitled to the rights
referred to in this clause (iii) in lieu of the Assignor), and (iv) the right to
maintain plant representatives at the Manufacturer's plant pursuant to the
Purchase Agreement. The Assignee hereby accepts such assignment subject to the
terms hereof.
Notwithstanding the foregoing, so long as no Lease Event of Default
as defined in Section 14 of the Lease has occurred and is continuing, the
Assignee shall and it does hereby authorize the Assignor during the term of the
Lease, as sublessee under the Express Sublease, to the exclusion of the
Assignee, to exercise in Assignor's own name all rights and powers of the
"Buyer" under the Purchase Agreement including the right to retain any recovery
or benefit resulting from the enforcement of any warranty or indemnity under the
Purchase Agreement in respect of the Aircraft except that the Assignor may not
enter into any amendment, modification or supplement to the Purchase Agreement
without the written consent or countersignature of the Assignee if such
amendment, modification or supplement would result in any rescission,
cancellation or termination of the Purchase Agreement with respect to the
Aircraft, except as permitted by Article 9 or 22 of the Purchase Agreement
provided that after reasonable prior notice by CAL to Manufacturer, CAL shall be
entitled to exercise the rights of the Assignor referred to in this paragraph.
Until such time as written notice of a Lease Event of Default or
termination of the Lease shall have been given by the Lessor to the
Manufacturer, to its Director of Contracts, by mail to EMBRAER-Empresa
Brasileira de Aeronautica S.A., Xx. Xxxxxxxxxx Xxxxx Xxxx, 0000, 12.227-901 Sao
Xxxx dos Xxxxxx-SP, Brazil, or by fax to fax no.: 00 00-0000-0000, the
Manufacturer shall deal solely and exclusively with the Assignor. After such
notice has been given to the Manufacturer, and until the Lessor shall have
notified the Manufacturer that a Lease Event of Default is no longer continuing,
the Manufacturer shall deal solely and exclusively with the Lessor. Assignee
shall cause Lessor to promptly after all Lease Events of Default have been
remedied to the satisfaction of Lessor, give written notice that such remedy has
occurred to the Manufacturer with a copy to the Assignor, and upon the
Manufacturer's receipt of such notice, the Assignor and the Manufacturer shall
have all of the respective rights which they have hereunder and under the
Consent and Agreement annexed hereto in the absence of notice from the Lessor of
a Lease Event of Default.
For all purposes of this Assignment, the Manufacturer shall not be
deemed to have knowledge of, and need not recognize nor take any action with
respect to, the occurrence of a Lease Event of Default, or the discontinuance of
a Lease Event of Default, or the Aircraft's becoming no longer subject to the
Lease, or the termination of the Assignor's rights hereunder by CAL to the
extent permitted herewith, unless and until the Manufacturer shall have received
from the Lessor or CAL, as required by the terms of this Assignment, written
notice (including notice by fax) thereof and, in acting in accordance with the
terms and conditions of the Purchase Agreement and this Assignment, the
Manufacturer may act in accordance with and conclusively rely upon any such
notice.
3. It is expressly agreed that, anything herein contained to the
contrary notwithstanding: (a) the Assignor shall at all times remain liable to
the Manufacturer under the Purchase Agreement to perform all duties and
obligations of the "Buyer" thereunder to the same extent as if this Assignment
had not been executed; (b) the exercise by the Assignee of any of the rights
assigned hereunder shall not release the Assignor from any of its duties or
obligations to the Manufacturer under the Purchase Agreement except to the
extent that such exercise by the Assignee shall constitute performance of such
duties and obligations; (c) subject to the provisions of the penultimate
paragraph of this Section 3, the Assignee shall not have any obligation or
liability under the Purchase Agreement (including in particular, but without
limitation, any liability for the payment of any taxes and customs duties under
the Purchase Agreement, the obligation for payment of which shall remain with
the Assignor as provided in clause (d) below) by reason of, or arising out of,
this Assignment or be obligated to perform any of the obligations or duties of
the Assignor under the Purchase Agreement or to make any payment (other than to
pay the purchase price for the Aircraft as invoiced on the delivery date for
such Aircraft to the extent and upon the terms and conditions set forth in the
Purchase Agreement and the Lease Agreement) or to make any inquiry as to the
sufficiency of any payment received by it or to present or file any claim or to
take any other action to collect or enforce any claim for any payment assigned
hereunder; (d) after the delivery date for the Aircraft under the Purchase
Agreement, the Assignor will exercise its rights and perform its obligations
under the Purchase Agreement to the extent that such rights and obligations have
not been assigned hereunder or performed by the Assignee. Nothing contained in
this Section 3 shall impose upon the Assignee any liability for post-delivery
adjustments in price, which adjustments it is understood and agreed will be the
sole right and responsibility of the Assignor.
Nothing contained herein shall subject the Manufacturer to any
liability to which it would not otherwise be subject under the Purchase
Agreement or modify in any respect the Manufacturer's contract rights thereunder
or require the Manufacturer to divest itself of title to or possession of the
Aircraft therefor until delivery thereof and payment therefor on the delivery
date as provided therein.
Without in any way releasing the Assignor from any of its duties or
obligations under the Purchase Agreement, the Assignee hereby agrees, expressly
for the benefit of the Manufacturer, that notwithstanding anything contained
herein to the contrary, insofar as the provisions of the Purchase Agreement
relate to the Aircraft accepted by Assignee under the Purchase Agreement, in
exercising any rights under the Purchase Agreement, or in making any claim with
respect to the Aircraft or other things (including without limitation data,
documents and services) delivered or to be delivered pursuant to the Purchase
Agreement, the terms and conditions of the Purchase Agreement, shall apply to
and be binding upon Assignee to the same extent as if Assignee had been the
original "Buyer" thereunder. Assignee further agrees, expressly for the benefit
of the Manufacturer, that at any time and from time to time upon the written
request of the Manufacturer, Assignee shall promptly and duly execute and
deliver any and all such further assurances, instruments and documents and take
all such further action as the Manufacturer may reasonably request in order to
obtain the full benefits of Assignee's agreements set forth in this paragraph.
The Assignee hereby confirms that it shall be deemed for all
purposes to have read and be familiar with the Purchase Agreement and to
thoroughly understand the terms and conditions thereof.
4. On the delivery date for the Aircraft, the Assignee agrees,
subject to satisfaction or waiver of the conditions set forth in Section 4 of
the Participation Agreement to purchase the Aircraft from the Manufacturer and,
subject to the provisions of clause (c) of the first paragraph of Section 3
hereof, to pay (or agree to pay) the Manufacturer an amount equal to the unpaid
balance of the purchase price payable to the Manufacturer on such Delivery Date
for such Aircraft pursuant to the Purchase Agreement, as such unpaid balance may
be adjusted in accordance with the terms of the Purchase Agreement and invoiced
by the Manufacturer to the Assignee on or before the delivery date for such
Aircraft.
5. The Assignor agrees that at any time and from time to time upon
the written request of the Assignee, the Assignor will 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 in order to obtain the
full benefits of this Assignment and of the rights and powers herein granted.
6. The Assignor does hereby represent and warrant (a) that the
Purchase Agreement is in full force and effect and is a legal, valid and binding
obligation of Assignor, enforceable in accordance with its terms and that
Assignor is not in default thereunder; and (b) that Assignor has not assigned,
mortgaged, charged or pledged, and hereby covenants that it will not assign,
mortgage, charge or pledge, so long as this Assignment shall remain in effect,
the whole or any part of the rights hereby assigned or any of its rights with
respect to the Aircraft under the Purchase Agreement not assigned hereby, to
anyone other than the Assignee.
7. The Assignee agrees that, so long as the Lease has not been
terminated and the Assignor remains in possession, it will not enter into any
agreement with the Manufacturer that would amend, modify, rescind, cancel or
terminate the Purchase Agreement in respect of the Aircraft without the prior
written consent of the Assignor.
8. The Assignee agrees that it will not disclose to any third party
(other than their direct and indirect parent companies) the terms of the
Purchase Agreement (whether or not related to the Aircraft) or this Assignment,
except (a) as required by applicable law, judicial proceeding or governmental
regulation, or (b) as required for the assignment of its rights under this
Assignment in accordance with the provisions of Article 16 of the Purchase
Agreement, or (c) with the prior written consent of the Assignor and the
Manufacturer, which consent shall not be unreasonably withheld with respect to a
prospective bona fide purchaser of the Aircraft. Any disclosure as contemplated
in (b) above shall include a requirement that the entity to which the
information is disclosed shall be subject to obligations of nondisclosure with
respect to such information substantially the same as those contained herein.
9. This Assignment is executed by the Assignor and the Assignee
concurrently with the execution and delivery of the Lease.
10. This Assignment may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
11. THIS PURCHASE AGREEMENT ASSIGNMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, UNITED STATES OF
AMERICA, WITHOUT REGARD TO CONFLICT OF LAWS RULES OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW.
[The remainder of this page has been left blank intentionally.]
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be duly
executed as of the day and year first above written.
EXPRESSJET AIRLINES, INC.
By
------------------------------------
PM LIMITED
By
------------------------------------
[Partial Assignment]
Annex 1 to Purchase Agreement
Assignment No. 1-[DEAL]
CONSENT AND AGREEMENT No. 1-[DEAL]
The undersigned, EMBRAER-EMPRESA BRASILEIRA DE AERONAUTICA S.A., a
corporation organized and existing under the laws of Brazil, hereby acknowledges
notice of and consents to all of the terms of the foregoing Purchase Agreement
Assignment - No. 1-[DEAL], dated as of _____ ___, 2004, between EXPRESSJET
AIRLINES, INC. and PM LIMITED, to the extent they relate to the Manufacturer
(herein called the "Assignment", the defined terms therein being hereinafter
used with the same meaning) and hereby confirms to the Assignee that: (i) all
representations, warranties, indemnities and agreements of the Manufacturer
under the Purchase Agreement with respect to the Aircraft shall inure to the
benefit of the Assignee to the same extent as if originally named the "Buyer"
therein, subject to the terms and conditions of the Assignment and the Purchase
Agreement, except as provided in paragraph 2 of the Assignment, (ii) the
Assignee shall not be liable for any of the obligations or duties of the
Assignor under the Purchase Agreement, nor shall the Assignment give rise to any
duties or obligations whatsoever on the part of the Assignee owing to the
Manufacturer except for the Assignee's agreement in the Assignment to the effect
that in exercising any rights under the Purchase Agreement, or in making any
claim with respect to the Aircraft or other things (including without limitation
data, documents and services) delivered or to be delivered pursuant to the
Purchase Agreement, the terms and conditions of the Purchase Agreement, shall
apply to and be binding upon Assignee to the same extent as if Assignee had been
the original "Buyer" thereunder, and with respect to such agreement the
Manufacturer agrees that, anything contained in the Purchase Agreement or the
Assignment to the contrary notwithstanding, so long as the Manufacturer shall
not have received notice from Lessor that a Lease Event of Default has occurred
and is continuing, the Assignee shall not have any responsibility to the
Manufacturer for failure to comply with any of the terms of the Purchase
Agreement with respect to the Aircraft while under lease to CAL so long as the
Assignee acts upon the written instructions of the Assignor (or if CAL shall
have specified in a written notice to Assignee and Manufacturer, CAL) (to which
instructions the Manufacturer understands it shall have access on request);
PROVIDED that no person other than the Manufacturer shall have any rights
against the Assignee with respect to the undertaking and agreement set forth in
this clause (ii); (iii) the Manufacturer will continue to pay to the Assignor
(or if CAL shall have specified in a written notice to Assignee and
Manufacturer, CAL) all payments which the Manufacturer may be required to make
in respect of the Aircraft under the Purchase Agreement unless and until the
Manufacturer shall have received written notice addressed to its Director of
Contracts, by mail to EMBRAER-Empresa Brasileira de Aeronautica S.A., Xx.
Xxxxxxxxxx Xxxxx Xxxx, 0000, 12.227-901 Sao Xxxx dos Xxxxxx-SP, Brazil, or by
fax to fax no: 00 00-0000-0000, that a Lease Event of Default has occurred and
is continuing (which such notice from the Assignee shall be conclusive proof
thereof to the Manufacturer and as to which the Manufacturer shall have no
obligation to inquire), whereupon the Manufacturer will, until the Manufacturer
shall have received notice in writing sent or addressed as aforesaid that no
Lease Event of Default exists, make any and all payments and take any and all
actions which it may be required thereafter to make or take in respect of the
Aircraft under the Purchase Agreement and the right to receive which has been
assigned under the Assignment to the Assignee (which has its registered office
at the offices of Caledonian Bank & Trust Limited, Caledonian House, P.O. Box
1043, Xx Xxx'x Drive, Xxxxxx Town, Grand Cayman, Cayman Islands); and (iv) from
and after the delivery of the Aircraft and payment in full therefor pursuant to
Article 4 of the Purchase Agreement as invoiced on the Delivery Date the
Manufacturer will not assert any lien or claim against the Aircraft or any part
thereof arising with respect to or in connection with any work or other services
performed before the delivery and acceptance of the Aircraft.
The Manufacturer hereby represents and warrants that (A) the
Manufacturer is a corporation duly organized and existing in good standing under
the laws of Brazil, (B) the making and performance of the Purchase Agreement
have been duly authorized by all necessary corporate action on the part of the
Manufacturer, do not require any stockholder approval, do not contravene the
Manufacturer's By-Laws or any indenture, credit agreement or other contractual
agreement to which the Manufacturer is a party or by which it is bound, and the
making of the Purchase Agreement does not contravene any law binding on the
Manufacturer, (C) the making and performance of this Consent and Agreement have
been duly authorized by all necessary corporate action on the part of the
Manufacturer, do not require any stockholder approval and do not contravene any
law binding on the Manufacturer or contravene the Manufacturer's By-laws or any
indenture, credit agreement or other contractual agreement to which the
Manufacturer is a party or by which it is bound and (D) the Purchase Agreement
constituted as of the date thereof and at all times thereafter to and including
the date of this Consent and Agreement constitutes a binding obligation of the
Manufacturer enforceable against the Manufacturer in accordance with its terms
subject to: (i) the limitations of applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors
generally; and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), which
principles do not make the remedies available at law or in equity with respect
to the Purchase Agreement inadequate for the practical realization of the
benefits intended to be provided thereby and this Consent and Agreement is a
binding obligation of the Manufacturer enforceable against the Manufacturer in
accordance with its terms subject to: (a) the limitations of applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally; and (b) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law), which principles do not make the remedies available at law or in equity
which respect to this Consent and Agreement inadequate for the practical
realization of the benefits intended to be provided thereby. It is understood
that the execution by the Manufacturer of this Consent and Agreement is subject
to the condition that concurrently with the delivery of the Aircraft the
Aircraft will be leased to Lessee under the Lease Agreement.
[The remainder of this page has been left blank intentionally.]
This Consent and Agreement shall be governed by the laws of the
State of New York, including all matters of construction, validity and
performance, as applicable to contracts between citizens of the state to be
performed wholly within that state, and without regard to conflicts of law rules
other than Section 5-1401 of the New York General Obligations Law.
Dated as of
______ ___, 2004
EMBRAER-EMPRESA BRASILEIRA
DE AERONAUTICA S.A.
By
------------------------------------
Title:
By
------------------------------------
Title:
EXHIBIT D-3 to
NOTE PURCHASE AGREEMENT
FORM OF PURCHASE AGREEMENT ASSIGNMENT
(NEW AIRCRAFT)
PURCHASE AGREEMENT ASSIGNMENT NO. 2 - [DEAL_]
PURCHASE AGREEMENT ASSIGNMENT NO. 2 - [Deal_], dated as of ______ ___,
2004 (this "Assignment"), between PM Limited, a Cayman Islands company (the
"Assignor" or "PM Limited"), and XXXXX FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION, not in its individual capacity but solely as Owner Trustee (the
"Assignee").
RECITALS
WHEREAS, EXPRESSJET AIRLINES, INC., a Delaware corporation ("Express") and
EMBRAER-Empresa Brasileira de Aeronautica S.A., a corporation organized under
the laws of Brazil ("Embraer"), have entered into the Purchase Agreement,
pursuant to which, among other things, Embraer has agreed to manufacture and
sell to Express, and Express has agreed to purchase from Embraer, certain
aircraft, including the Aircraft (as defined in the Purchase Agreement
Assignment No. 1 described below);
WHEREAS, pursuant to a Purchase Agreement Assignment No. 1 - [Deal_],
dated as of the date hereof ("PAA No. 1"), between Express and PM Limited,
Express has, among other things, assigned to PM Limited, with the consent of the
Manufacturer, certain of its right, title and interest in, to and under the
Purchase Agreement including, without limitation, the right to purchase the
Aircraft from Embraer upon and subject to the terms and conditions set forth in
the Purchase Agreement and PAA No. 1;
WHEREAS, PM Limited has purchased the Aircraft from Embraer and,
concurrently therewith, has sold the Aircraft to Xxxxx Fargo Bank Northwest,
National Association, acting not in its individual capacity but solely as Owner
Trustee under the Trust Agreement [Deal_], dated as of the date hereof (the
"Original Trust Agreement"), between Refine, Inc., as Owner Participant (the
"Owner Participant"), and Xxxxx Fargo Bank Northwest, National Association
("Xxxxx Fargo");
WHEREAS, in connection with the sale of the Aircraft by PM Limited to the
Owner Trustee and with the consent of the Manufacturer, PM Limited shall,
pursuant to this Assignment, transfer to the Owner Trustee all of PM Limited's
present and future rights, title, obligations and interests in, to and under the
Purchase Agreement as assigned by PAA No. 1, except for PM Limited's right to
purchase the Aircraft from the Manufacturer pursuant to Section 2(a) of PAA No.
1;
WHEREAS, the Owner Trustee desires to (i) issue Equipment Notes (as
defined in Annex A to the Lease Agreement referred to herein) for the purpose of
enabling the Owner Participant to repay, in part, the indebtedness relating to
the acquisition of the Aircraft by the Owner Trustee, and (ii) lease the
Aircraft to Continental Airlines, Inc. ("Continental") pursuant to the Lease
Agreement (as hereinafter defined); and
WHEREAS, to facilitate the transactions described in the immediately
preceding Whereas clause, the Manufacturer is willing to execute and deliver to
the Assignee a Consent and Agreement to the provisions hereof in substantially
the form attached hereto as Annex 1;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements of the parties contained herein, and for other good and
valuable consideration, the receipt and adequacy of which is hereby acknowledged
the parties hereto agree as follows:
Section 1. DEFINITIONS. Capitalized terms used but not defined herein
shall have the respective meanings set forth or incorporated by reference, and
shall be construed and interpreted in the manner described, in PAA No. 1.
Section 2. TRANSFER AND ASSUMPTION. The Assignor does hereby sell, assign
and transfer to the Assignee all of the Assignor's present and future rights,
title, obligations and interest in, to and under the Purchase Agreement as
assigned by PAA No. 1, excluding the right to purchase the Aircraft from the
Manufacturer (the "Assignor's Interest") and the Assignee hereby accepts the
Assignor's Interest from the Assignor. The Assignee agrees that it shall be
bound by all the terms of, and shall assume and undertake to perform all the
obligations of, the Assignor with respect to the Assignor's Interest.
Section 3. CONFIDENTIAL TREATMENT. The Assignee and the Assignor agree
that the provisions of Paragraph 8 of PAA No. 1 are hereby terminated and
superseded by the provisions of this Section 3 and, in furtherance thereof,
agree that they will not disclose to any third party (other than their direct
and indirect parent companies) the terms of the Purchase Agreement (whether or
not related to the Aircraft) or PAA No. 1 or this Assignment, except (a) as
required by applicable law, judicial proceeding or governmental regulation, (b)
in the case of the Assignee, as required for the assignment of its rights under
this Assignment in accordance with the provisions of Article 16 of the Purchase
Agreement, (c) with the prior written consent of Express, the Assignor and the
Manufacturer, which consent shall not be unreasonably withheld with respect to a
prospective bona fide purchaser of the Aircraft, (d) to prospective and
permitted transferees of Owner Participant's interest or their or Owner
Participant's respective counsel or special counsel, independent insurance
brokers, auditors, or other agents, (e) as otherwise permitted by the Operative
Agreements (as defined in Annex A to the Lease), or (f) to such other Persons as
are reasonably deemed necessary by the disclosing party for the purposes of
enforcing such documents by such party; PROVIDED that any such disclosure under
this sentence shall be made only to the extent necessary to meet the specific
requirements or needs of the Assignee or PM Limited, as the case may be. Any
disclosure as contemplated in (b), (c) or (d) above shall include a requirement
that the entity to which the information is disclosed shall be subject to
obligations of nondisclosure with respect to such information substantially the
same as those contained herein.
Section 4. ASSIGNMENT TO MORTGAGEE. The right, title and interest of the
Assignee in and to this Assignment has, contemporaneously with the execution and
delivery hereof, been assigned to and is subject to a security interest in favor
of the Mortgagee (as such terms and the other capitalized terms used hereinafter
in this sentence are defined in Appendix A to the Lease) under the Trust
Indenture, for the benefit of the Loan Participants and the Note Holders
referred to the Trust Indenture, all to the extent provided in such Trust
Indenture. The Assignor hereby consents to such assignment and to the creation
of such security interest in and to this Assignment.
Section 5. NOTICES. Any notices provided for in PAA No. 1 shall be
delivered to the Assignee at the following address or such other place as the
Assignee may designate in accordance with PAA No. 1:
Xxxxx Fargo Bank Northwest,
National Association
MAC: U1228-120
Attn: Corporate Trust Dept.
000 X. Xxxx Xxxxxx, 00xx Xxxxx
Xxxx Xxxx Xxxx, XX 00000
Facsimile: 000-000-0000
Section 6. HEADINGS. The headings of the Sections herein are for
convenience of reference only and shall not define or limit any of the
terms or provisions hereof.
Section 7. GOVERNING LAW. THIS ASSIGNMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, UNITED STATES OF
AMERICA, WITHOUT REGARD TO CONFLICT OF LAWS RULES OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW.
Section 8. COUNTERPARTS. This Agreement and any amendments, waivers,
consents or supplements hereto may be executed in any number of counterparts (or
upon separate signature pages bound together into one or more counterparts),
each of which when so executed shall be deemed to be an original, and all of
which counterparts, taken together, shall constitute one and the same
instrument.
Section 9. PURCHASE AGREEMENT. The rights and obligations of the parties
hereto are subject to the terms and conditions of the Purchase Agreement.
[Remainder of the Page is Intentionally Left Blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
duly executed as of the day and year first written above.
PM LIMITED, as Assignor
By:
-----------------------------------
Name:
Title:
XXXXX FARGO BANK
NORTHWEST, NATIONAL
ASSOCIATION, not in its
individual capacity but solely as
Owner Trustee, as Assignee
By:
-----------------------------------
Name:
Title:
Annex 1 to Purchase
Agreement Assignment No. 2 - [Deal_]
CONSENT AND AGREEMENT NO. 2 - [DEAL_]
The undersigned, EMBRAER-EMPRESA BRASILEIRA DE AERONAUTICA S.A., a
corporation organized and existing under the laws of Brazil, hereby acknowledges
notice of and consents to all of the terms of the foregoing Purchase Agreement
Assignment No. 2 - [Deal_], dated as of ________ ___, 2004, by and among PM
Limited and XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Owner Trustee, to the extent they relate to
the Manufacturer (herein called the "Assignment No. 2", the defined terms
therein being hereinafter used with the same meaning) and hereby confirms to the
Assignee that: (i) all representations, warranties, indemnities and agreements
of the Manufacturer under the Purchase Agreement with respect to the Aircraft
shall inure to the benefit of the Assignee to the same extent as if originally
named the "Buyer" therein, subject to the terms and conditions of the Assignment
No. 2, the Purchase Agreement and PAA No. 1; (ii) the Assignee shall not be
liable for any of the obligations or duties of Express under the Purchase
Agreement, nor shall the Assignment No. 2 give rise to any duties or obligations
whatsoever on the part of the Assignee owing to the Manufacturer except for the
Assignee's agreement to the effect that in exercising any rights under the
Purchase Agreement, or in making any claim with respect to the Aircraft or other
things (including without limitation data, documents and services) delivered or
to be delivered pursuant to the Purchase Agreement, the terms and conditions of
the Purchase Agreement shall apply to and be binding upon the Assignee to the
same extent as if the Assignee had been the original "Buyer" thereunder, and
with respect to such agreement the Manufacturer agrees that, anything contained
in the Purchase Agreement or the Assignment No. 2 to the contrary
notwithstanding, so long as the Manufacturer shall not have received notice that
a Lease Event of Default has occurred and is continuing, the Assignee shall not
have any responsibility to the Manufacturer for failure to comply with any of
the terms of the Purchase Agreement with respect to the Aircraft while under
lease to Continental so long as the Assignee acts upon the written instructions
of Express (or, if Continental shall have specified in a written notice to the
Assignee and the Manufacturer that Continental is entitled to possession of the
Aircraft, Continental) (to which instructions the Manufacturer understands it
shall have access on request); PROVIDED that no person other than the
Manufacturer shall have any rights against the Assignee with respect to the
undertaking and agreement set forth in this clause (ii); (iii) the Manufacturer
will continue to pay to Express (or, if Continental shall have specified in a
written notice to the Assignee and the Manufacturer that Continental is entitled
to possession of the Aircraft, Continental) all payments which the Manufacturer
may be required to make in respect of the Aircraft under the Purchase Agreement
unless and until the Manufacturer shall have received written notice addressed
to its Contracts Administrator, by mail to EMBRAER-Empresa Brasileira de
Aeronautica S.A., Xx. Xxxxxxxxxx Xxxxx Xxxx, 0000, 12.227-901 Sao Xxxx dos
Xxxxxx-SP, Brazil, or by fax to fax no: 00 00-0000-0000, that a Lease Event of
Default has occurred and is continuing (which such notice from the Assignee
shall be conclusive proof thereof to the Manufacturer and as to which the
Manufacturer shall have no obligation to inquire), whereupon the Manufacturer
will, until the Manufacturer shall have received notice in writing sent or
addressed as aforesaid that no Lease Event of Default exists, make any and all
payments and take any and all actions which it may be required thereafter to
make or take in respect of the Aircraft under the Purchase Agreement and the
right to receive which has been assigned under the Assignment No. 2 directly to
the Assignee at its address at MAC: U1228-120, 000 X. Xxxx Xxxxxx, 00xx Xxxxx,
Xxxx Xxxx Xxxx, Xxxx 00000 , telecopy no. 000-000-0000; (iv) from and after the
delivery of the Aircraft on the Delivery Date, the Manufacturer will not assert
any lien or claim against the Aircraft or any part thereof arising with respect
to or in connection with any work or other services performed before the
delivery and acceptance of the Aircraft; and (v) the Manufacturer consents to
the grant of a security interest in the Purchase Agreement pursuant to the Trust
Indenture (as defined in Appendix A to the Lease).
The Manufacturer hereby represents and warrants that (A) the Manufacturer
is a corporation duly organized and existing in good standing under the laws of
Brazil, (B) the making and performance of the Purchase Agreement have been duly
authorized by all necessary corporate action on the part of the Manufacturer, do
not require any stockholder approval, do not contravene the Manufacturer's
By-Laws or any indenture, credit agreement or other contractual agreement to
which the Manufacturer is a party or by which it is bound, and the making of the
Purchase Agreement does not contravene any law binding on the Manufacturer, (C)
the making and performance of this Consent and Agreement have been duly
authorized by all necessary corporate action on the part of the Manufacturer, do
not require any stockholder approval and do not contravene any law binding on
the Manufacturer or contravene the Manufacturer's By-laws or any indenture,
credit agreement or other contractual agreement to which the Manufacturer is a
party or by which it is bound, (D) the Purchase Agreement constituted as of the
date thereof and at all times thereafter to and including the date of this
Consent and Agreement constitutes a binding obligation of the Manufacturer
enforceable against the Manufacturer in accordance with its terms subject to:
(i) the limitations of applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally) and (ii)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and (E) this Consent and
Agreement is a binding obligation of the Manufacturer enforceable against the
Manufacturer in accordance with its terms subject to: (a) the limitations of
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally; and (b) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law). It is understood that the execution by the Manufacturer of
this Consent and Agreement is subject to the condition that concurrently with
execution and delivery hereof the Aircraft will be leased to Continental under
the Lease Agreement.
[The remainder of this page has been left blank intentionally.]
This Consent and Agreement shall be governed by the laws of the State of
New York, including all matters of construction, validity and performance, as
applicable to contracts between citizens of the state to be performed wholly
within that state, and without regard to conflicts of law rules other than
Section 5-1401 of the New York General Obligations Law.
Dated as of _______ ___, 2004.
EMBRAER-EMPRESA BRASILEIRA
DE AERONAUTICA S.A.
By
------------------------------------------
Title:
By
------------------------------------------
Title:
EXHIBIT E to
NOTE PURCHASE AGREEMENT
FORM OF TRUST AGREEMENT
(Filed Separately)
EXHIBIT F
TO NOTE PURCHASE AGREEMENT
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
Ladies and Gentlemen:
Reference is made to the Note Purchase Agreement, dated as of June 29,
2004, among Continental Airlines, Inc. (the "COMPANY"), Wilmington Trust
Company, as Pass Through Trustee under the Pass Through Trust Agreement (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 Embraer Model EMB-145 XR aircraft with
manufacturer's serial number [MSN] (the "AIRCRAFT"), of the following:
(1) The Scheduled Closing Date of the Aircraft is [_________]; and
(2) The principal amount of the Equipment Notes to be issued, and purchased by
the Pass Through Trustee on such Scheduled Closing Date, in connection
with the financing of such Aircraft is $[_______].
The Company hereby instructs the Pass Through 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 Escrow Agent.1
The Company hereby instructs the Pass Through Trustee to (i) purchase
Equipment Notes in an amount set forth in clause (2) above with a portion of the
proceeds [of the withdrawals of Deposits referred to in the Notice of Purchase
Withdrawal referred to above]2 [received on the Scheduled Closing Date from the
Underwriters]3 and (ii) re-deposit with the Depositary any amount not used on
the Scheduled Closing Date to purchase Equipment Notes.
The Company hereby instructs the Pass Through Trustee to (a) enter into
the Participation Agreement [TN] dated as of [__________] among the Company, as
Lessee, Wilmington Trust Company, as Mortgagee and Loan Participant, Xxxxx Fargo
Bank Northwest, National Association, as Owner Trustee and Lessor, [_______], as
Owner Participant, and Embraer-Empresa Brasileira de Aeronautica, (b) perform
its obligations thereunder and (c) deliver such certificates, documents and
legal opinions relating to the Pass Through Trustee as required thereby.
Yours faithfully,
Continental Airlines, Inc.
By:
-------------------------
Name:
Title:
-------------------
1. Eliminate if the Scheduled Closing Date is the Issuance Date.
2. Eliminate if the Scheduled Closing Date is the Issuance Date.
3. Insert if the Scheduled Closing Date is the Issuance Date.
SCHEDULE A
Wilmington Trust Company, as
Pass Through Trustee, Subordination
Agent and Paying Agent
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
Xxxxx Xxxxx Xxxx Xxxxxxxxx, Xxxxxxxx Xxxxxxxxxxx,
XXX:X0000-000 as Escrow Agent
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Corporate Trust Services
Facsimile: (000) 000-0000
WestLB AG, New York Branch, as Depositary
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxx
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 Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxxx
Facsimile: (000) 000-0000
Annex A
WITHDRAWAL CERTIFICATE
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 June 29, 2004 (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 (212)
869-7634 (Attention: Xxxxxxxx Xxxxxx) and (000) 000-0000 (Attention: Xxxxxx
Xxxx). 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 but
solely as Pass Through Trustee
By:
-----------------------------------------
Name:
Title:
Dated: As of ____________, 200_
Exhibit A
NOTICE OF PURCHASE WITHDRAWAL
WestLB AG, New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxx
Facsimile: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Deposit Agreement dated as of June 29, 2004
(the "DEPOSIT AGREEMENT") between Xxxxx Fargo Bank Northwest, National
Association, as Escrow Agent, and WestLB AG, 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 [_________ __, 200__], 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 _______ __, 200_
