TRUST SUPPLEMENT No. 2007-1B-O Dated as of April 10, 2007 between WILMINGTON TRUST COMPANY as Trustee, and CONTINENTAL AIRLINES, INC. to PASS THROUGH TRUST AGREEMENT Dated as of September 25, 1997 Continental Airlines Pass Through Trust 2007-1B-O...
TRUST
SUPPLEMENT No. 2007-1B-O
Dated
as
of April 10, 2007
between
WILMINGTON
TRUST COMPANY
as
Trustee,
and
CONTINENTAL
AIRLINES, INC.
to
Dated
as
of September 25, 1997
$221,850,000
Continental
Airlines Pass Through Trust 2007-1B-O
6.903%
Continental Airlines
Pass
Through Certificates,
Series
2007-1B-O
Page
Exhibit
A - Form
of Certificate
Exhibit
B - DTC
Letter of Representations
Exhibit
C - Form
of Assignment and Assumption
Agreement
This
Trust Supplement No. 2007-1B-O, dated as of April 10, 2007 (herein called the
"Trust
Supplement"),
between Continental Airlines, Inc., a Delaware corporation (the "Company"),
and
Wilmington Trust Company (the "Trustee"),
to
the Pass Through Trust Agreement, dated as of September 25, 1997, between the
Company and the Trustee (the "Basic
Agreement").
W I T N E S S E T H:
WHEREAS,
the Basic Agreement, unlimited as to the aggregate principal amount of
Certificates (unless otherwise specified herein, capitalized terms used herein
without definition having the respective meanings specified in the Basic
Agreement) which may be issued thereunder, has heretofore been executed and
delivered;
WHEREAS,
the Company has obtained commitments from Boeing for the delivery of certain
Aircraft;
WHEREAS,
the Company intends to finance the acquisition of each such Aircraft through
separate secured loan transactions, under which the Company will own such
Aircraft (collectively, the "Owned
Aircraft");
WHEREAS,
in the case of each Owned Aircraft, the Company will issue pursuant to an
Indenture, on a recourse basis, Equipment Notes to finance a portion of the
purchase price of such Owned Aircraft;
WHEREAS,
the Trustee hereby declares the creation of the Continental Airlines Pass
Through Trust 2007-1B-O (the "Applicable
Trust")
for
the benefit of the Applicable Certificateholders, and the initial Applicable
Certificateholders as the grantors of the Applicable Trust, by their respective
acceptances of the Applicable Certificates, join in the creation of the
Applicable Trust with the Trustee;
WHEREAS,
all Certificates to be issued by the Applicable Trust will evidence fractional
undivided interests in the Applicable Trust and will convey no rights, benefits
or interests in respect of any property other than the Trust Property except
for
those Certificates to which an Escrow Receipt has been affixed;
WHEREAS,
the Escrow Agent and the Underwriters have contemporaneously herewith entered
into an Escrow Agreement with the Escrow Paying Agent pursuant to which the
Underwriters have delivered to the Escrow Agent the proceeds from the sale
of
the Applicable Certificates, and have irrevocably instructed the Escrow Agent
to
withdraw and pay funds from such proceeds upon request and proper certification
by the Trustee to purchase Equipment Notes as the Aircraft are delivered by
Boeing under the Aircraft Purchase Agreement from time to time prior to the
Delivery Period Termination Date;
WHEREAS,
the Escrow Agent on behalf of the Applicable Certificateholders has
contemporaneously herewith entered into a Deposit Agreement with the Depositary
under which
the
Deposits referred to therein will be made and from which it will withdraw funds
to allow the Trustee to purchase Equipment Notes from time to time prior to
the
Delivery Period Termination Date;
WHEREAS,
pursuant to the terms and conditions of the Basic Agreement as supplemented
by
this Trust Supplement (the "Agreement")
and
the NPA, upon the financing of an Aircraft, the Trustee on behalf of the
Applicable Trust, using funds withdrawn under the Escrow Agreement, shall
purchase one or more Equipment Notes having the same interest rate as, and
final
maturity date not later than the final Regular Distribution Date of, the
Applicable Certificates issued hereunder and shall hold such Equipment Notes
in
trust for the benefit of the Applicable Certificateholders;
WHEREAS,
all of the conditions and requirements necessary to make this Trust Supplement,
when duly executed and delivered, a valid, binding and legal instrument in
accordance with its terms and for the purposes herein expressed, have been
done,
performed and fulfilled, and the execution and delivery of this Trust Supplement
in the form and with the terms hereof have been in all respects duly
authorized;
WHEREAS,
this Trust Supplement is subject to the provisions of the Trust Indenture Act
of
1939, as amended, and shall, to the extent applicable, be governed by such
provisions;
NOW
THEREFORE, in consideration of the premises herein, it is agreed between the
Company and the Trustee as follows:
ARTICLE
I
THE
CERTIFICATES
Section
1.01. The
Certificates.
There
is hereby created a series of Certificates to be issued under the Agreement
to
be distinguished and known as "Continental Airlines Pass Through Certificates,
Series 2007-1B-O" (hereinafter defined as the "Applicable
Certificates").
Each
Applicable Certificate represents a fractional undivided interest in the
Applicable Trust created hereby. The Applicable Certificates shall be the only
instruments evidencing a fractional undivided interest in the Applicable
Trust.
The
terms
and conditions applicable to the Applicable Certificates are as
follows:
(a) The
aggregate principal amount of the Applicable Certificates that shall be
authenticated under the Agreement (except for Applicable Certificates
authenticated and delivered under Sections 3.03, 3.04, 3.05 and 3.06 of the
Basic Agreement) is $221,850,000.
(b) The
Regular Distribution Dates with respect to any payment of Scheduled Payments
means April 19 and October 19 of each year, commencing on October 19, 2007,
until payment of all of the Scheduled Payments to be made under the Equipment
Notes has been made.
(c) The
Special Distribution Dates with respect to the Applicable Certificates means
any
Business Day on which a Special Payment is to be distributed pursuant to the
Agreement.
(d) At
the
Escrow Agent's request under the Escrow Agreement, the Trustee shall affix
the
corresponding Escrow Receipt to each Applicable Certificate. In any event,
any
transfer or exchange of any Applicable Certificate shall also effect a transfer
or exchange of the related Escrow Receipt. Prior to the Final Withdrawal Date,
no transfer or exchange of any Applicable Certificate shall be permitted unless
the corresponding Escrow Receipt is attached thereto and also is so transferred
or exchanged. By acceptance of any Applicable Certificate to which an Escrow
Receipt is attached, each Holder of such an Applicable Certificate acknowledges
and accepts the restrictions on transfer of the Escrow Receipt set forth herein
and in the Escrow Agreement.
(e) (i) The
Applicable Certificates shall be in the form attached hereto as Exhibit A.
Any
Person acquiring or accepting an Applicable Certificate or an interest therein
will, by such acquisition or acceptance, be deemed to represent and warrant
to
and for the benefit of the Company that either (i) the assets of an employee
benefit plan subject to Title I of the Employee Retirement Income Security
Act
of 1974, as amended ("ERISA"),
or of
a plan subject to Section 4975 of the Internal Revenue Code of 1986, as amended
(the "Code"),
have
not been used to purchase or hold Applicable Certificates or an interest therein
or (ii) the purchase and holding of Applicable Certificates or an interest
therein is exempt from the prohibited transaction restrictions of ERISA and
the
Code pursuant to one or more prohibited transaction statutory or administrative
exemptions.
(ii) The
Applicable Certificates shall be Book-Entry Certificates and shall be subject
to
the conditions set forth in the Letter of Representations between the Company
and the Clearing Agency attached hereto as Exhibit B.
(f) The
"Participation Agreements" as defined in this Trust Supplement are the "Note
Purchase Agreements" referred to in the Basic Agreement.
(g) The
Applicable Certificates are subject to the Intercreditor Agreement, the Deposit
Agreement and the Escrow Agreement.
(h) The
Applicable Certificates are entitled to the benefits of the Liquidity
Facility.
(i) The
Responsible Party is the Company.
(j) The
date
referred to in clause (i) of the definition of the term "PTC Event of Default"
in the Basic Agreement is the Final Maturity Date.
(k) The
"particular sections of the Note Purchase Agreement", for purposes of clause
(3)
of Section 7.07 of the Basic Agreement, are Section 8.1 of each Participation
Agreement.
(l) The
Equipment Notes to be acquired and held in the Applicable Trust, and the related
Aircraft and Note Documents, are described in the NPA.
ARTICLE
II
DEFINITIONS
Section
2.01. Definitions.
For all
purposes of the Basic Agreement as supplemented by this Trust Supplement, the
following capitalized terms have the following meanings (any term used herein
which is defined in both this Trust Supplement and the Basic Agreement shall
have the meaning assigned thereto in this Trust Supplement for purposes of
the
Basic Agreement as supplemented by this Trust Supplement):
Agreement:
Has the
meaning specified in the recitals hereto.
Aircraft:
Means
each of the New Aircraft or Substitute Aircraft in respect of which a
Participation Agreement is to be or is, as the case may be, entered into in
accordance with the NPA (or any substitute aircraft, including engines therefor,
owned by the Company and securing one or more Equipment Notes).
Aircraft
Purchase Agreement:
Has the
meaning specified in the NPA.
Applicable
Certificate:
Has the
meaning specified in Section 1.01 of this Trust Supplement.
Applicable
Certificateholder:
Means
the Person in whose name an Applicable Certificate is registered on the Register
for the Applicable Certificates.
Applicable
Delivery Date:
Has the
meaning specified in Section 5.01(b) of this Trust Supplement.
Applicable
Participation Agreement:
Has the
meaning specified in Section 5.01(b) of this Trust Supplement.
Applicable
Trust:
Has the
meaning specified in the recitals hereto.
Assignment
and Assumption Agreement:
Means
the assignment and assumption agreement substantially in the form of Exhibit
C
hereto executed and delivered in accordance with Section 7.01 of this Trust
Supplement.
Basic
Agreement:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Boeing:
Means
The Boeing Company.
Business
Day:
Means
any day other than a Saturday, a Sunday or a day on which commercial banks
are
required or authorized to close in Houston, Texas, New York, New York, or,
so
long as any Applicable Certificate is Outstanding, the city and state in which
the Trustee, the Subordination Agent or any Loan Trustee maintains its Corporate
Trust Office or receives and disburses funds.
Certificate:
Has the
meaning specified in the Intercreditor Agreement.
Certificate
Buyout Event:
Means
that a Continental Bankruptcy Event has occurred and is continuing and the
following events have occurred: (A) (i) the 60-day period specified in Section
1110(a)(2)(A) of the U.S. Bankruptcy Code (the “60-Day Period”) has expired and
(ii) Continental has not entered into one or more agreements under Section
1110(a)(2)(A) of the U.S. Bankruptcy Code to perform all of its obligations
under all of the Indentures or, if it has entered into such agreements, has
at
any time thereafter failed to cure any default under any of the Indentures
in
accordance with Section 1110(a)(2)(B) of the Bankruptcy Code; or (B) if prior
to
the expiry of the 60-Day Period, Continental shall have abandoned any
Aircraft.
Class:
Has the
meaning specified in the Intercreditor Agreement.
Company:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Continental
Bankruptcy Event:
Has the
meaning specified in the Intercreditor Agreement.
Controlling
Party:
Has the
meaning specified in the Intercreditor Agreement.
Cut-off
Date:
Means
the earlier of (a) the Delivery Period Termination Date and (b) the date on
which a Triggering Event occurs.
Delivery
Notice:
Has the
meaning specified in the NPA.
Delivery
Period Termination Date:
Means
the earlier of (a) June 30, 2009, or, if the Equipment Notes relating to
all of the New Aircraft (or Substitute Aircraft in lieu thereof) have not been
purchased by the Applicable Trust and the Other Trusts on or prior to such
date
due to any reason beyond the control of the Company and not occasioned by the
Company's fault or negligence, September 30, 2009 (provided
that, if
a labor strike occurs at Boeing on or prior to either or both of such dates
referred to in this clause (a), such date or dates on or following the
commencement of such strike shall be extended by adding thereto the number
of
days that such strike continued in effect), and (b) the date on which Equipment
Notes issued with respect to all of the New Aircraft (or Substitute Aircraft
in
lieu thereof) have been purchased by the Applicable Trust and the Other Trusts
in accordance with the NPA.
Deposit
Agreement:
Means
the Deposit Agreement dated as of April 10, 2007 relating to the Applicable
Certificates between the Depositary and the Escrow Agent, as the same may be
amended, supplemented or otherwise modified from time to time in accordance
with
its terms.
Depositary:
Means
Credit Suisse, a banking institution organized under the laws of Switzerland,
acting through its New York branch.
Deposits:
Has the
meaning specified in the Deposit Agreement.
Distribution
Date:
Means
any Regular Distribution Date or Special Distribution Date as the context
requires.
Escrow
Agent: Means, initially, Xxxxx Fargo Bank
Northwest, National Association, and any replacement or successor therefor
appointed in accordance with the Escrow Agreement.
Escrow
Agreement:
Means
the Escrow and Paying Agent Agreement dated as of April 10, 2007 relating to
the
Applicable Certificates, among the Escrow Agent, the Escrow Paying Agent, the
Trustee and Underwriters, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
Escrow
Paying Agent:
Means
the Person acting as paying agent under the Escrow Agreement.
Escrow
Receipt:
Means
the receipt substantially in the form annexed to the Escrow Agreement
representing a fractional undivided interest in the funds held in escrow
thereunder.
Final
Maturity Date:
Means
October
19, 2023.
Final
Withdrawal:
Has the
meaning specified in the Escrow Agreement.
Final
Withdrawal Date:
Has the
meaning specified in the Escrow Agreement.
Final
Withdrawal Notice:
Has the
meaning specified in Section 5.02 of this Trust Supplement.
Indenture:
Means
each of the separate trust indentures and mortgages relating to the Aircraft,
each as specified or described in a Delivery Notice delivered pursuant to the
NPA or the related Participation Agreement, in each case as the same may be
amended, supplemented or otherwise modified from time to time in accordance
with
its terms.
Intercreditor
Agreement:
Means
the Intercreditor Agreement dated as of April 10, 2007 among the Trustee, the
Other Trustees, the Liquidity Provider, the liquidity provider
relating
to the Class A Certificates and Wilmington Trust Company, as Subordination
Agent
and as trustee thereunder, as amended, supplemented or otherwise modified from
time to time in accordance with its terms.
Investors:
Means
the Underwriters, together with all subsequent beneficial owners of the
Applicable Certificates.
Liquidity
Facility:
Means,
initially, the Revolving Credit Agreement dated as of April 10, 2007 relating
to
the Applicable Certificates, between the Liquidity Provider and Wilmington
Trust
Company, as Subordination Agent, as agent and trustee for the Applicable Trust,
and, from and after the replacement of such agreement pursuant to the
Intercreditor Agreement, the replacement liquidity facility therefor, in each
case as amended, supplemented or otherwise modified from time to time in
accordance with their respective terms.
Liquidity
Provider:
Means,
initially, RZB Finance LLC, a limited liability company duly established under
the laws of Delaware, and any replacements or successors therefor appointed
in
accordance with the Intercreditor Agreement.
New
Aircraft:
Has the
meaning specified in the NPA.
Note
Documents:
Means
the Equipment Notes with respect to the Applicable Certificates and, with
respect to any such Equipment Note, the Indenture and the Participation
Agreement relating to such Equipment Note.
Notice
of Purchase Withdrawal:
Has the
meaning specified in the Deposit Agreement.
NPA:
Means
the Note Purchase Agreement dated as of April 10, 2007 among the Trustee, the
Other Trustees, the Company, the Escrow Agent, the Escrow Paying Agent and
the
Subordination Agent, providing for, among other things, the purchase of
Equipment Notes by the Trustee on behalf of the Applicable Trust, as the same
may be amended, supplemented or otherwise modified from time to time, in
accordance with its terms.
Other
Agreements:
Means
(i) the Basic Agreement as supplemented by Trust Supplement
No. 2007-1A-O dated as of the date hereof relating to Continental Airlines
Pass Through Trust 2007-1A-O, (ii) the Basic Agreement as supplemented by
Trust Supplement No. 2007-1C-O dated as of the date hereof relating to
Continental Airlines Pass Through Trust 2007-1C-O, (iii) the Basic Agreement
as
supplemented by a Trust Supplement relating to any Additional Trust and (iv)
the
Basic Agreement as supplemented by a Trust Supplement relating to any
Refinancing Trust.
Other
Trustees:
Means
the trustees under the Other Agreements, and any successor or other trustee
appointed as provided therein.
Other
Trusts:
Means
the Continental Airlines Pass Through Trust 2007-1A-O, the Continental Airlines
Pass Through Trust 2007-1C-O, an Additional Trust or Trusts, if any, and a
Refinancing Trust or Trusts, if any, created by the Other
Agreements.
Owned
Aircraft:
Has the
meaning specified in the third recital to this Trust Supplement.
Participation
Agreement:
Means
each Participation Agreement to be entered into, or entered into (as the case
may be), by the Trustee pursuant to the NPA, as the same may be amended,
supplemented or otherwise modified in accordance with its terms.
Pool
Balance:
Means,
as of any date, (i) the original aggregate face amount of the Applicable
Certificates less (ii) the aggregate amount of all payments made as of such
date
in respect of such Applicable Certificates or in respect of Deposits other
than
payments made in respect of interest or premium thereon or reimbursement of
any
costs or expenses incurred in connection therewith. The Pool Balance as of
any
date shall be computed after giving effect to any special distribution with
respect to unused Deposits, payment of principal of the Equipment Notes or
payment with respect to other Trust Property and the distribution thereof to
be
made on that date.
Pool
Factor:
Means,
as of any Distribution Date, the quotient (rounded to the seventh decimal place)
computed by dividing (i) the Pool Balance by (ii) the original aggregate face
amount of the Applicable Certificates. The Pool Factor as of any Distribution
Date shall be computed after giving effect to any special distribution with
respect to unused Deposits, payment of principal of the Equipment Notes or
payment with respect to other Trust Property and the distribution thereof to
be
made on that date.
Prospectus
Supplement:
Means
the final Prospectus Supplement dated March 27, 2007 relating to the offering
of
the Applicable Certificates, the Class A and the Class C
Certificates.
Ratings
Confirmation:
Has the
meaning specified in the Intercreditor Agreement.
Related
Pass Through Trust Agreement:
Means
the Basic Agreement as supplemented by the Trust Supplement No. 2007-1B-S dated
as of the date hereof relating to the Continental Airlines Pass Through Trust
2007-1B-S and entered into by the Company and the Related Trustee, which
agreement becomes effective upon the execution and delivery of the Assignment
and Assumption Agreement pursuant to Section 7.01 of this Trust
Supplement.
Related
Trust:
Means
the Continental Pass Through Trust 2007-1B-S, to be formed under the Related
Pass Through Trust Agreement.
Related
Trustee:
Means
the trustee under the Related Pass Through Trust Agreement.
Scheduled
Delivery Date:
Has the
meaning specified in the NPA.
Scheduled
Payment:
Means,
with respect to any Equipment Note, (i) any payment of principal or interest
on
such Equipment Note (other than any such payment which is not in fact received
by the Trustee or any Subordination Agent within five days of the date on which
such payment is scheduled to be made) or (ii) any payment of interest on the
Applicable Certificates with funds drawn under the Liquidity Facility, which
payment in any such case represents the installment of principal on such
Equipment Note at the stated maturity of such installment, the payment of
regularly scheduled interest accrued on the unpaid principal amount of such
Equipment Note, or both; provided,
however,
that
any payment of principal, premium, if any, or interest resulting from the
redemption or purchase of any Equipment Note shall not constitute a Scheduled
Payment.
Special
Payment:
Means
any payment (other than a Scheduled Payment) in respect of, or any proceeds
of,
any Equipment Note or Collateral (as defined in each Indenture).
Substitute
Aircraft:
Has the
meaning specified in the NPA.
Transfer
Date:
Has the
meaning specified in Section 7.01 of this Trust Supplement.
Triggering
Event:
Has the
meaning assigned to such term in the Intercreditor Agreement.
Trust
Property:
Means
(i) subject to the Intercreditor Agreement, the Equipment Notes held as the
property of the Applicable Trust, all monies at any time paid thereon and all
monies due and to become due thereunder, (ii) funds from time to time deposited
in the Certificate Account and the Special Payments Account and, subject to
the
Intercreditor Agreement, any proceeds from the sale by the Trustee pursuant
to
Article VI of the Basic Agreement of any Equipment Note and (iii) all
rights of the Applicable Trust and the Trustee, on behalf of the Applicable
Trust, under the Intercreditor Agreement, the Escrow Agreement, the NPA and
the
Liquidity Facility, including, without limitation, all rights to receive certain
payments thereunder, and all monies paid to the Trustee on behalf of the
Applicable Trust pursuant to the Intercreditor Agreement or the Liquidity
Facility, provided
that
rights with respect to the Deposits or under the Escrow Agreement, except for
the right to direct withdrawals for the purchase of Equipment Notes to be held
herein, will not constitute Trust Property.
Trust
Supplement:
Has the
meaning specified in the first paragraph of this trust supplement.
Trustee:
Has the
meaning specified in the first paragraph of this Trust Supplement.
Underwriters:
Means,
collectively, Xxxxxx Xxxxxxx & Co. Incorporated, Credit Suisse Securities
(USA) LLC, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Citigroup
Global Markets Inc., UBS Securities LLC, Calyon Securities (USA) Inc. and
X.X.Xxxxxx Securities Inc.
Underwriting
Agreement:
Means
the Underwriting Agreement dated March 27, 2007 among the Underwriters, the
Company and the Depositary, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
ARTICLE
III
CERTIFICATES;
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section
3.01. Statements
to Applicable Certificateholders.
(a) On each Distribution Date, the Trustee will include with each
distribution to Applicable Certificateholders of a Scheduled Payment or Special
Payment, as the case may be, a statement setting forth the information provided
below (in the case of a Special Payment, reflecting in part the information
provided by the Escrow Paying Agent under the Escrow Agreement). Such statement
shall set forth (per $1,000 face amount Applicable Certificate as to (ii),
(iii), (iv) and (v) below) the following information:
(i) the
aggregate amount of funds distributed on such Distribution Date under the
Agreement and under the Escrow Agreement, indicating the amount allocable to
each source, including any portion thereof paid by the Liquidity
Provider;
(ii) the
amount of such distribution under the Agreement allocable to principal and
the
amount allocable to premium, if any;
(iii) the
amount of such distribution under the Agreement allocable to
interest;
(iv) the
amount of such distribution under the Escrow Agreement allocable to
interest;
(v) the
amount of such distribution under the Escrow Agreement allocable to unused
Deposits, if any; and
(vi)
the Pool Balance and the Pool Factor.
With
respect to the Applicable Certificates registered in the name of a Clearing
Agency or its nominee, on the Record Date prior to each Distribution Date,
the
Trustee will request that such Clearing Agency post on its Internet bulletin
board a securities position listing setting forth the names of all Clearing
Agency Participants reflected on such Clearing Agency’s books as holding
interests in the Applicable Certificates on such Record Date. On each
Distribution Date, the Trustee will mail to each such Clearing Agency
Participant the statement described above and will make available additional
copies as requested by such Clearing Agency Participant for forwarding to
holders of interests in the Applicable Certificates.
(b) Within
a
reasonable period of time after the end of each calendar year but not later
than
the latest date permitted by law, the Trustee shall furnish to each Person
who
at any time during such calendar year was an Applicable Certificateholder of
record a statement containing the sum of the amounts determined pursuant to
clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and (a)(v) above for such calendar
year or, in the event such Person was an Applicable Certificateholder of record
during a portion of such calendar year, for such portion of such year, and
such
other items as are readily available to the Trustee and which an Applicable
Certificateholder shall reasonably request as necessary for the purpose of
such
Applicable Certificateholder's preparation of its U.S. federal income tax
returns. Such statement and such other items shall be prepared on the basis
of
information supplied to the Trustee by the Clearing Agency Participants and
shall be delivered by the Trustee to such Clearing Agency Participants to be
available for forwarding by such Clearing Agency Participants to the holders
of
interests in the Applicable Certificates in the manner described in Section
3.01(a) of this Trust Supplement.
(c) If
the
aggregate principal payments scheduled for a Regular Distribution Date prior
to
the Delivery Period Termination Date differ from the amount thereof set forth
for the Applicable Certificates on page S-33 of the Prospectus Supplement,
by no
later than the 15th
day
prior to such Regular Distribution Date, the Trustee shall mail written notice
of the actual amount of such scheduled payments to the Applicable
Certificateholders of record as of a date within 15 Business Days prior to
the
date of mailing.
(d) Promptly
following (i) the Delivery Period Termination Date, if there has been any change
in the information set forth in clauses (y) and (z) below from that set forth
in
page S-33 of the Prospectus Supplement, and (ii) the date of any early
redemption or purchase of, or any default in the payment of principal or
interest in respect of, any of the Equipment Notes held in the Applicable Trust,
or any Final Withdrawal, the Trustee shall furnish to Applicable
Certificateholders of record on such date a statement setting forth (x) the
expected Pool Balances for each subsequent Regular Distribution Date following
the Delivery Period Termination Date, (y) the related Pool Factors for such
Regular Distribution Dates and (z) the expected principal distribution schedule
of the Equipment Notes, in the aggregate, held as Trust Property at the date
of
such notice. With respect to the Applicable Certificates registered in the
name
of a Clearing Agency, on the Delivery Period Termination Date, the Trustee
will
request from such Clearing Agency a securities position listing setting forth
the names of all Clearing Agency Participants reflected on such Clearing
Agency's books as holding interests in the Applicable Certificates on such
date.
The Trustee will mail to each such Clearing Agency Participant the statement
described above and will make available additional copies as requested by such
Clearing Agency Participant for forwarding to holders of interests in the
Applicable Certificates.
(e) The
Trustee shall provide promptly to the Applicable Certificateholders all material
non-confidential information received by the Trustee from the
Company.
(f)
This
Section 3.01 supersedes and replaces Section 4.03 of the Basic Agreement, with
respect to the Applicable Trust.
Section
3.02. Special
Payments Account.
(a) The
Trustee shall establish and maintain on behalf of the Applicable
Certificateholders a Special Payments Account as one or more accounts, which
shall be non-interest bearing except as provided in Section 4.04 of the Basic
Agreement. The Trustee shall hold the Special Payments Account in trust for
the
benefit of the Applicable Certificateholders and shall make or permit
withdrawals therefrom only as provided in the Agreement. On each day when one
or
more Special Payments are made to the Trustee under the Intercreditor Agreement,
the Trustee, upon receipt thereof, shall immediately deposit the aggregate
amount of such Special Payments in the Special Payments Account.
(b)
This
Section 3.02 supersedes and replaces Section 4.01(b) of the Basic Agreement
in
its entirety, with respect to the Applicable Trust.
Section
3.03. Distributions
from Special Payments Account.
(a) On
each Special Distribution Date with respect to any Special Payment or as soon
thereafter as the Trustee has confirmed receipt of any Special Payments due
on
the Equipment Notes held (subject to the Intercreditor Agreement) in the
Applicable Trust or realized upon the sale of such Equipment Notes, the Trustee
shall distribute out of the Special Payments Account the entire amount of such
Special Payment deposited therein pursuant to Section 3.02(a) of this Trust
Supplement. There shall be so distributed to each Applicable Certificateholder
of record on the Record Date with respect to such Special Distribution Date
(other than as provided in Section 7.01 of this Trust Supplement concerning
the
final distribution) by check mailed to such Applicable Certificateholder, at
the
address appearing in the Register, such Applicable Certificateholder's pro
rata
share (based on the Fractional Undivided Interest in the Applicable Trust held
by such Applicable Certificateholder) of the total amount in the Special
Payments Account on account of such Special Payment, except that, with respect
to Applicable Certificates registered on the Record Date in the name of a
Clearing Agency (or its nominee), such distribution shall be made by wire
transfer in immediately available funds to the account designated by such
Clearing Agency (or such nominee).
(b) The
Trustee shall, at the expense of the Company, cause notice of each Special
Payment to be mailed to each Applicable Certificateholder at his address as
it
appears in the Register. In the event of redemption or purchase of Equipment
Notes held in the Applicable Trust, such notice shall be mailed not less than
15
days prior to the Special Distribution Date for the Special Payment resulting
from such redemption or purchase, which Special Distribution Date shall be
the
date of such redemption or purchase. In the case of any Special Payments, such
notice shall be mailed as soon as practicable after the Trustee has confirmed
that it has received funds for such Special Payment, stating the Special
Distribution Date for such Special Payment which shall occur not less than
15
days after the date of such notice and as soon as practicable thereafter.
Notices mailed by the Trustee shall set forth:
(i) the
Special Distribution Date and the Record Date therefor (except as otherwise
provided in Section 7.01 of this Trust Supplement),
(ii) the
amount of the Special Payment for each $1,000 face amount Applicable Certificate
and the amount thereof constituting principal, premium, if any, and
interest,
(iii) the
reason for the Special Payment, and
(iv) if
the
Special Distribution Date is the same date as a Regular Distribution Date,
the
total amount to be received on such date for each $1,000 face amount Applicable
Certificate.
If
the amount of premium, if any, payable upon the redemption or purchase of an
Equipment Note has not been calculated at the time that the Trustee mails notice
of a Special Payment, it shall be sufficient if the notice sets forth the other
amounts to be distributed and states that any premium received will also be
distributed.
If
any
redemption of the Equipment Notes held in the Trust is canceled, the Trustee,
as
soon as possible after learning thereof, shall cause notice thereof to be mailed
to each Applicable Certificateholder at its address as it appears on the
Register.
(b)
This
Section 3.03 supersedes and replaces Section 4.02(b) and Section 4.02(c) of
the
Basic Agreement in their entirety, with respect to the Applicable
Trust.
Section
3.04. Limitation
of Liability for Payments.
Section
3.09 of the Basic Agreement shall be amended, with respect to the Applicable
Trust, by deleting the phrase "the Owner Trustees or the Owner Participants"
in
the second sentence thereof and adding in lieu thereof "the Liquidity
Provider".
ARTICLE
IV
DEFAULT
Section
4.01. Purchase
Rights of Certificateholders.
(a) At
any time after the occurrence and during the continuation of a Certificate
Buyout Event, each Applicable Certificateholder (other than the Company or
any
of its Affiliates) shall have the right to purchase, for the purchase price
set
forth in the Class A Trust Agreement, all, but not less than all, of the Class
A
Certificates upon 15 days' written notice to the Class A Trustee and each other
Applicable Certificateholder, on the third Business Day next following the
expiry of such 15-day notice period, provided
that (A)
if prior to the end of such 15-day period any other Applicable Certificateholder
(other than the Company or any of its Affiliates) notifies such purchasing
Applicable Certificateholder that such other Applicable Certificateholder wants
to participate in such purchase, then such other Applicable Certificateholder
(other than the Company or any of its Affiliates) may join with the purchasing
Applicable Certificateholder to purchase all, but not less than all, of the
Class A Certificates pro rata based on the Fractional Undivided Interest in
the
Applicable Trust held by each such Applicable Certificateholder and (B) if
prior
to the end of such 15-day period any other Applicable Certificateholder fails
to
notify the purchasing Applicable Certificateholder of such other Applicable
Certificateholder's desire to participate in such a purchase, then such other
Applicable Certificateholder shall lose its right to purchase the Class A
Certificates pursuant to this Section 4.01(a);
(b)
By
acceptance of its Applicable Certificate, each Applicable Certificateholder
agrees that that at any time after the occurrence and during the continuation
of
a Certificate Buyout Event:
(i) each
Class C Certificateholder (other than the Company or any of its Affiliates)
shall have the right (which shall not expire upon any purchase of the Class
A
Certificates pursuant to clause (a) above) to purchase all, but not less than
all, of the Class A Certificates and the Applicable Certificates upon 15 days'
written notice to the Trustee, the Class A Trustee and each other Class C
Certificateholder, on the third Business Day next following the expiry of such
15-day notice period, provided
that (A)
if prior to the end of such 15-day period any other Class C Certificateholder
(other than the Company or any of its Affiliates) notifies such purchasing
Class
C Certificateholder that such other Class C Certificateholder wants to
participate in such purchase, then such other Class C Certificateholder (other
than the Company or any of its Affiliates) may join with the purchasing Class
C
Certificateholder to purchase all, but not less than all, of the Class A
Certificates and the Applicable Certificates pro rata based on the Fractional
Undivided Interest in the Class C Trust held by each such Class C
Certificateholder and (B) if prior to the end of such 15-day period any other
Class C Certificateholder fails to notify the purchasing Class C
Certificateholder of such other Class C Certificateholder's desire to
participate in such a purchase, then such other Class C Certificateholder
shall lose its right to purchase the Class A Certificates and the Applicable
Certificates pursuant to this Section 4.01(b)(i);
(ii) if
any
Additional Certificates are issued pursuant to one or more Additional Trusts,
each Additional Certificateholder (other than the Company or any of its
Affiliates), shall have the right (which shall not expire upon any purchase
of
the Applicable Certificates pursuant to clauses (a) or (b)(i) above) to purchase
all, but not less than all, of the Class A Certificates, the Applicable
Certificates, the Class C Certificates and any Additional Certificates ranked
senior to the Additional Certificates held by the purchasing Additional
Certificateholders upon 15 days' written notice to the Trustee, the Class A
Trustee, the Class C Trustee, any Additional Trustee with respect to Additional
Certificates that rank senior to the Additional Certificates held by the
purchasing Additional Certificateholders and each other Additional
Certificateholder of the same Class, on the third Business Day next following
the expiry of such 15-day notice period, provided
that (A)
if prior to the end of such 15-day period any other Additional Certificateholder
of such Class (other than the Company or any of its Affiliates) notifies such
purchasing Additional Certificateholder that such other Additional
Certificateholder wants to participate in such purchase, then such other
Additional Certificateholder (other than the Company or any of its Affiliates)
may join with the purchasing Additional Certificateholder to purchase all,
but
not less than all, of the Class A Certificates, the Applicable Certificates,
the
Class C Certificates and such senior Additional Certificates pro rata based
on
the Fractional Undivided Interest in the applicable Additional Trust held by
each such Additional Certificateholder and (B) if prior to the end of such
15-day period any other Additional Certificateholder of such Class fails to
notify the purchasing Additional Certificateholder of such other Additional
Certificateholder's desire to participate in such a purchase, then such other
Additional Certificateholder shall lose its right to purchase the Class A
Certificates, the Applicable Certificates, the Class C Certificates and
such senior Additional Certificates pursuant to this Section
4.01(b)(ii).
(iii)
if
any Refinancing Certificates are issued, each Refinancing Certificateholder
shall have the same right (subject to the same terms and conditions) to purchase
Certificates pursuant to this Section 4.01(b) (and to receive notice in
connection therewith) as the Certificateholders of the Class that such
Refinancing Certificates refinanced.
The
purchase price with respect to the Applicable Certificates shall be equal to
the
Pool Balance of the Applicable Certificates, together with accrued and unpaid
interest thereon to the date of such purchase, without premium, but including
any other amounts then due and payable to the Applicable Certificateholders
under the Agreement, the Intercreditor Agreement, the Escrow Agreement or any
Note Document or on or in respect of the Applicable Certificates; provided,
however,
that no
such purchase of Applicable Certificates shall be effective unless the
purchaser(s) shall certify to the Trustee that contemporaneously with such
purchase, such purchaser(s) is (are) purchasing, pursuant to the terms of the
Agreement and the Other Agreements, (A) in the case of any purchase of the
Applicable Certificates pursuant to clause (i) above, all of the Applicable
Certificates and the Class A Certificates, or (B) in all other cases,
the Applicable Certificates, the Class A Certificates, the Class C Certificates
and, if applicable, the Additional Certificates that are senior to the
securities held by such purchaser(s). Each payment of the purchase price of
the
Applicable Certificates referred to in the first sentence hereof shall be made
to an account or accounts designated by the Trustee and each such purchase
shall
be subject to the terms of this Section 4.01. Each Applicable Certificateholder
agrees by its acceptance of its Applicable Certificate that (at any time after
the occurrence of a Certificate Buyout Event) it will, upon payment from Class
C
Certificateholder(s), Additional Certificateholder(s) or Refinancing
Certificateholders, as the case may be, of the purchase price set forth in
the
first sentence of this paragraph, (i) forthwith sell, assign, transfer and
convey to the purchaser(s) thereof (without recourse, representation or warranty
of any kind except for its own acts), all of the right, title, interest and
obligation of such Applicable Certificateholder in the Agreement, the Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity
Facility, the NPA, the Note Documents and all Applicable Certificates and Escrow
Receipts held by such Applicable Certificateholder (excluding all right, title
and interest under any of the foregoing to the extent such right, title or
interest is with respect to an obligation not then due and payable as respects
any action or inaction or state of affairs occurring prior to such sale) (and
the purchaser shall assume all of such Applicable Certificateholder's
obligations under the Agreement, the Escrow Agreement, the Deposit Agreement,
the Intercreditor Agreement, the Liquidity Facility, the NPA, the Note Documents
and all such Applicable Certificates and Escrow Receipts), (ii) if such
purchase occurs after a record date specified in Section 2.03 of the Escrow
Agreement relating to the distribution of unused Deposits and/or accrued and
unpaid interest on Deposits and prior to or on the related distribution date
thereunder, forthwith turn over to the purchaser(s) of its Applicable
Certificate all amounts, if any, received by it on account of such distribution,
and (iii) if such purchase occurs after a Record Date relating to any
distribution and prior to or on the related Distribution Date, forthwith turn
over to the purchaser(s) of its Applicable Certificate all amounts, if any,
received by it on account of such distribution. The Applicable Certificates
will
be deemed to be purchased on the date payment of the purchase price is made
notwithstanding the failure of the Applicable Certificateholders to deliver
any
Applicable Certificates and, upon such a purchase, (I) the only rights of the
Applicable
Certificateholders will be to deliver the Applicable Certificates to the
purchaser(s) and receive the purchase price for such Applicable Certificates
and
(II) if the purchaser(s) shall so request, such Applicable Certificateholder
will comply with all the provisions of Section 3.04 of the Basic Agreement
to
enable new Applicable Certificates to be issued to the purchaser in such
denominations as it shall request. All charges and expenses in connection with
the issuance of any such new Applicable Certificates shall be borne by the
purchaser thereof.
As
used
in this Section 4.01 and elsewhere in this Trust Supplement, the terms
"Additional Certificate", "Additional Certificateholder", "Additional Equipment
Notes", "Additional Trust", "Additional Trust Agreement", "Additional Trustee",
"Class A Certificate", "Class A Certificateholder", "Class A Trust", "Class
A
Trust Agreement", "Class A Trustee", "Class C Certificate", "Class C
Certificateholder", "Class C Trust", "Class C Trust Agreement", "Class C
Trustee", "Refinancing Certificates", "Refinancing Certificateholder",
"Refinancing Equipment Notes" and "Refinancing Trust" shall have the respective
meanings assigned to such terms in the Intercreditor Agreement.
(c) This
Section 4.01 supersedes and replaces Section 6.01(b) of the Basic Agreement,
with respect to the Applicable Trust.
Section
4.02. Amendment
of Section 6.05 of the Basic Agreement.
Section
6.05 of the Basic Agreement shall be amended, with respect to the Applicable
Trust, by deleting the phrase "and thereby annul any Direction given by such
Certificateholders or the Trustee to such Loan Trustee with respect thereto,"
set forth in the first sentence thereof.
THE
TRUSTEE
Section
5.01. Delivery
of Documents; Delivery Dates.
(a) The
Trustee is hereby directed (i) to execute and deliver the Intercreditor
Agreement, the Escrow Agreement and the NPA on or prior to the Issuance Date,
each in the form delivered to the Trustee by the Company, and (ii) subject
to
the respective terms thereof, to perform its obligations thereunder. Upon
request of the Company and the satisfaction or waiver of the closing conditions
specified in the Underwriting Agreement, the Trustee shall execute, deliver,
authenticate, issue and sell Applicable Certificates in authorized denominations
equaling in the aggregate the amount set forth, with respect to the Applicable
Trust, in Schedule I to the Underwriting Agreement evidencing the entire
ownership interest in the Applicable Trust, which amount equals the maximum
aggregate principal amount of Equipment Notes which may be purchased by the
Trustee pursuant to the NPA. Except as provided in Sections 3.03, 3.04, 3.05
and
3.06 of the Basic Agreement, the Trustee shall not execute, authenticate or
deliver Applicable Certificates in excess of the aggregate amount specified
in
this paragraph. The provisions of this Section 5.01(a) supersede and
replace the first sentence of Section 3.02(a) of the Basic Agreement, with
respect to the Applicable Trust.
(b) After
the
Issuance Date, the Company may deliver from time to time to the Trustee a
Delivery Notice relating to one or more Equipment Notes. After receipt of a
Delivery Notice and in any case no later than one Business Day prior to a
Scheduled Delivery
Date
as
to which such Delivery Notice relates (the "Applicable
Delivery Date"),
the
Trustee shall (as and when specified in the Delivery Notice) instruct the Escrow
Agent to provide a Notice of Purchase Withdrawal to the Depositary requesting
(A) the withdrawal of one or more Deposits on the Applicable Delivery Date
in
accordance with and to the extent permitted by the terms of the Escrow Agreement
and the Deposit Agreement and (B) the payment of all, or a portion, of such
Deposit or Deposits in an amount equal in the aggregate to the purchase price
of
such Equipment Notes to or on behalf of the Company, all as shall be described
in the Delivery Notice. The Trustee shall (as and when specified in such
Delivery Notice), subject to the conditions set forth in Section 2 of the NPA,
enter into and perform its obligations under the Participation Agreement
specified in such Delivery Notice (the "Applicable
Participation Agreement")
and
cause such certificates, documents and legal opinions relating to the Trustee
to
be duly delivered as required by the Applicable Participation Agreement. If
at
any time prior to the Applicable Delivery Date, the Trustee receives a notice
of
postponement pursuant to Section 1(e) or 1(f) of the NPA, then the Trustee
shall
give the Depositary (with a copy to the Escrow Agent) a notice of cancellation
of such Notice of Purchase Withdrawal relating to such Deposit or Deposits
on
such Applicable Delivery Date. Upon satisfaction of the conditions specified
in
the NPA and the Applicable Participation Agreement, the Trustee shall purchase
the applicable Equipment Notes with the proceeds of the withdrawals of one
or
more Deposits made on the Applicable Delivery Date in accordance with the terms
of the Deposit Agreement and the Escrow Agreement. The purchase price of such
Equipment Notes shall equal the principal amount of such Equipment Notes.
Amounts withdrawn from such Deposit or Deposits in excess of the purchase price
of the Equipment Notes or to the extent not applied on the Applicable Delivery
Date to the purchase price of the Equipment Notes, shall be re-deposited by
the
Trustee with the Depositary on the Applicable Delivery Date in accordance with
the terms of the Deposit Agreement. The provisions of this Section 5.01(b)
supersede and replace the provisions of Section 2.02 of the Basic Agreement
with
respect to the Applicable Trust, and all provisions of the Basic Agreement
relating to Postponed Notes and Section 2.02 of the Basic Agreement shall not
apply to the Applicable Trust.
(c)
The
Trustee acknowledges its acceptance of all right, title and interest in and
to
the Trust Property to be acquired pursuant to Section 5.01(b) of this Trust
Supplement, the NPA and each Applicable Participation Agreement, and declares
that it holds and will hold such right, title and interest for the benefit
of
all present and future Applicable Certificateholders, upon the trusts set forth
in the Agreement. By its acceptance of an Applicable Certificate, each initial
Applicable Certificateholder, as a grantor of the Applicable Trust, joins with
the Trustee in the creation of the Applicable Trust. The provisions of this
Section 5.01(c) supersede and replace the provisions of Section 2.03 of the
Basic Agreement, with respect to the Applicable Trust.
Section
5.02. Withdrawal
of Deposits.
If any
Deposits remain outstanding on the Business Day next succeeding the Cut-off
Date, the Trustee shall promptly give the Escrow Agent notice that the Trustee's
obligation to purchase Equipment Notes under the NPA has terminated and instruct
the Escrow Agent to provide a notice of Final Withdrawal to the Depositary
substantially in the form of Exhibit B to the Deposit Agreement (the
"Final
Withdrawal Notice").
Section
5.03. The
Trustee.
(a)
Subject to Section 5.04 of this Trust Supplement and Section 7.15 of the Basic
Agreement, the Trustee shall not be responsible in any manner whatsoever for
or
in respect of the validity or sufficiency of this Trust Supplement, the Deposit
Agreement, the NPA or the Escrow Agreement or the due execution hereof or
thereof by the Company or the other parties thereto (other than the Trustee),
or
for or in respect of the recitals and statements contained herein or therein,
all of which recitals and statements are made solely by the Company, except
that
the Trustee hereby represents and warrants that each of this Trust Supplement,
the Basic Agreement, each Applicable Certificate, the Intercreditor Agreement,
the NPA and the Escrow Agreement has been executed and delivered by one of
its
officers who is duly authorized to execute and deliver such document on its
behalf.
(b) Except
as
herein otherwise provided and except during the continuation of an Event of
Default in respect of the Applicable Trust created hereby, no duties,
responsibilities or liabilities are assumed, or shall be construed to be
assumed, by the Trustee by reason of this Trust Supplement other than as set
forth in the Agreement, and this Trust Supplement is executed and accepted
on
behalf of the Trustee, subject to all the terms and conditions set forth in
the
Agreement, as fully to all intents as if the same were herein set forth at
length.
Section
5.04. Representations
and Warranties of the Trustee.
The
Trustee hereby represents and warrants that:
(a) the
Trustee has full power, authority and legal right to execute, deliver and
perform this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement, the NPA and the Note Documents to which it is or is to become a
party
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Supplement, the Intercreditor Agreement, the
Escrow Agreement, the NPA and the Note Documents to which it is or is to become
a party;
(b) the
execution, delivery and performance by the Trustee of this Trust Supplement,
the
Intercreditor Agreement, the Escrow Agreement, the NPA and the Note Documents
to
which it is or is to become a party (i) will not violate any provision of
any United States federal law or the law of the state of the United States
where
it is located governing the banking and trust powers of the Trustee or any
order, writ, judgment, or decree of any court, arbitrator or governmental
authority applicable to the Trustee or any of its assets, (ii) will not
violate any provision of the articles of association or by-laws of the Trustee,
and (iii) will not violate any provision of, or constitute, with or without
notice or lapse of time, a default under, or result in the creation or
imposition of any lien on any properties included in the Trust Property pursuant
to the provisions of any mortgage, indenture, contract, agreement or other
undertaking to which it is a party, which violation, default or lien could
reasonably be expected to have an adverse effect on the Trustee's performance
or
ability to perform its duties hereunder or thereunder or on the transactions
contemplated herein or therein;
(c) the
execution, delivery and performance by the Trustee of this Trust Supplement,
the
Intercreditor Agreement, the Escrow Agreement, the NPA and the Note Documents
to
which it is or is to become a party will not require the authorization,
consent,
or approval of, the giving of notice to, the filing or registration with, or
the
taking of any other action in respect of, any governmental authority or agency
of the United States or the state of the United States where it is located
regulating the banking and corporate trust activities of the Trustee;
and
(d) this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the NPA
and
the Note Documents to which it is or is to become a party have been, or will
be,
as applicable, duly executed and delivered by the Trustee and constitute, or
will constitute, as applicable, the legal, valid and binding agreements of
the
Trustee, enforceable against it in accordance with their respective terms;
provided,
however,
that
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors
generally and (ii) general principles of equity.
Section
5.05. Trustee
Liens.
The
Trustee in its individual capacity agrees, in addition to the agreements
contained in Section 7.17 of the Basic Agreement, that it will at its own cost
and expense promptly take any action as may be necessary to duly discharge
and
satisfy in full any Trustee's Liens on or with respect to the Trust Property
which is attributable to the Trustee in its individual capacity and which is
unrelated to the transactions contemplated by the Intercreditor Agreement or
the
NPA.
ARTICLE
VI
ADDITIONAL
AMENDMENT; SUPPLEMENTAL AGREEMENTS
Section
6.01. Amendment
of Section 5.02 of the Basic Agreement.
Section
5.02 of the Basic Agreement shall be amended, with respect to the Applicable
Trust, by (i) replacing the phrase "of the Note Documents and of this Agreement"
set forth in paragraph (b) thereof with the phrase "of the Note Documents,
of
the NPA and of this Agreement" and (ii) replacing the phrase "of this Agreement
and any Note Document" set forth in the last paragraph of Section 5.02 with
the phrase "of this Agreement, the NPA and any Note Document".
Section
6.02. Supplemental
Agreements Without Consent of Applicable Certificateholders.
Without
limitation of Section 9.01 of the Basic Agreement, under the terms of, and
subject to the limitations contained in, Section 9.01 of the Basic Agreement,
the Company may (but will not be required to), and the Trustee (subject to
Section 9.03 of the Basic Agreement) shall, at the Company's request, at any
time and from time to time, (i) enter into one or more agreements supplemental
to the Escrow Agreement, the NPA or the Deposit Agreement, for any of the
purposes set forth in clauses (1) through (9) of such Section 9.01, and (without
limitation of the foregoing or Section 9.01 of the Basic Agreement) (a) clauses
(2) and (3) of such Section 9.01 shall also be deemed to include the Company's
obligations under (in the case of clause (2)), and the Company's rights and
powers conferred by (in the case of clause (3)), the NPA, and
(b) references in clauses (4), (6) and (7) of such Section 9.01 to "any
Intercreditor Agreement or any Liquidity Facility" shall also be deemed to
refer
to "the Intercreditor Agreement, the Liquidity Facility, the Escrow Agreement,
the NPA or the Deposit Agreement", (ii) enter into one or more agreements
supplemental to the Agreement, the Intercreditor Agreement or the NPA to provide
for the formation of one or more Additional Trusts, the
issuance
of Additional Certificates, the purchase by any Additional Trust of applicable
Additional Equipment Notes and other matters incidental thereto or otherwise
contemplated by Section 2.01(b) of the Basic Agreement, subject to the
provisions of Section 4(a)(vi) of the NPA and Section 9.1 of the Intercreditor
Agreement, and (iii) enter into one or more agreements supplemental to the
Agreement to provide for the formation of one or more Refinancing Trusts, the
issuance of Refinancing Certificates, the purchase by any Refinancing Trust
of
applicable Refinancing Equipment Notes and other matters incidental thereto
or
as otherwise contemplated by Section 2.01(b) of the Basic Agreement, subject
to
the provisions of Section 4(a)(vi) of the NPA and Section 9.1(c) of the
Intercreditor Agreement.
Section
6.03.
Supplemental
Agreements with Consent of Applicable Certificateholders.
Without
limitation of Section 9.02 of the Basic Agreement, the provisions of Section
9.02 of the Basic Agreement shall apply to agreements or amendments for the
purpose of adding any provisions to or changing in any manner or eliminating
any
of the provisions of the Escrow Agreement, the Deposit Agreement, the Liquidity
Facility or the NPA or modifying in any manner the rights and obligations of
the
Applicable Certificateholders under the Escrow Agreement, the Deposit Agreement,
the Liquidity Facility or the NPA; provided
that the
provisions of Section 9.02(1) of the Basic Agreement shall be deemed to include
reductions in any manner of, or delay in the timing of, any receipt by the
Applicable Certificateholders of payments upon the Deposits.
Section
6.04. Consent
of Holders of Certificates Issued under Other Trusts.
Notwithstanding any provision in Section 6.02 or Section 6.03 of this Trust
Supplement to the contrary, no amendment or modification of Section 4.01 of
this
Trust Supplement shall be effective unless the trustee for each Class of
Certificates affected by such amendment or modification shall have consented
thereto.
TERMINATION
OF TRUST
Section
7.01. Termination
of the Applicable Trust.
(a) The respective obligations and responsibilities of the Company
and the Trustee with respect to the Applicable Trust shall terminate upon the
earlier of (A) the completion of the assignment, transfer and discharge
described in the first sentence of the immediately following paragraph and
(B) distribution to all Applicable Certificateholders and the Trustee of
all amounts required to be distributed to them pursuant to the Agreement and
the
disposition of all property held as part of the Trust Property; provided,
however,
that in
no event shall the Applicable Trust continue beyond one hundred ten (110) years
following the date of the execution of this Trust Supplement.
Upon
the
earlier of (i) the first Business Day following June 30, 2009 or, if later,
the
fifth Business Day following the Delivery Period Termination Date and (ii)
the
fifth Business Day following the date on which a Triggering Event occurs (such
date, the "Transfer
Date"),
or,
if later, the date on which all of the conditions set forth in the immediately
following sentence have been satisfied, the Trustee is hereby directed (subject
only to the immediately following sentence) to, and the Company shall direct
the
institution that will serve as the Related Trustee
under
the
Related Pass Through Trust Agreement to, execute and deliver the Assignment
and
Assumption Agreement, pursuant to which the Trustee shall assign, transfer
and
deliver all of the Trustee's right, title and interest to the Trust Property
to
the Related Trustee under the Related Pass Through Trust Agreement. The Trustee
and the Related Trustee shall execute and deliver the Assignment and Assumption
Agreement upon the satisfaction of the following conditions:
(i) The
Trustee, the Related Trustee and each of the Rating Agencies then rating the
Applicable Certificates shall have received an Officer's Certificate and an
Opinion of Counsel dated the date of the Assignment and Assumption Agreement
and
each satisfying the requirements of Section 1.02 of the Basic Agreement, which
Opinion of Counsel shall be substantially to the effect set forth below and
may
be relied upon by the Beneficiaries (as defined in the Assignment and Assumption
Agreement):
(I) Upon
the
execution and delivery thereof by the parties thereto in accordance with the
terms of the Agreement and the Related Pass Through Trust Agreement, the
Assignment and Assumption Agreement will constitute the valid and binding
obligation of each of the parties thereto enforceable against each such party
in
accordance with its terms;
(II) Upon
the
execution and delivery of the Assignment and Assumption Agreement in accordance
with the terms of the Agreement and the Related Pass Through Trust Agreement,
each of the Applicable Certificates then Outstanding will be entitled to the
benefits of the Related Pass Through Trust Agreement;
(III) The
Related Trust is not required to be registered as an investment company under
the Investment Company Act of 1940, as amended;
(IV) The
Related Pass Through Trust Agreement constitutes the valid and binding
obligation of the Company enforceable against the Company in accordance with
its
terms; and
(V) Neither
the execution and delivery of the Assignment and Assumption Agreement in
accordance with the terms of the Agreement and the Related Pass Through Trust
Agreement, nor the consummation by the parties thereto of the transactions
contemplated to be consummated thereunder on the date thereof, will violate
any
law or governmental rule or regulation of the State of New York or the United
States of America known to such counsel to be applicable to the transactions
contemplated by the Assignment and Assumption Agreement.
(ii) The
Trustee and the Company shall have received (x) a copy of the articles of
incorporation and bylaws of the Related Trustee certified as of the Transfer
Date by the Secretary or Assistant Secretary of such institution and (y) a copy
of the filing (including all attachments thereto) made by the institution
serving as the Related Trustee with the Office of the Superintendent, State
of
New York Banking Department for the qualification of the Related Trustee under
Section 131(3) of the New York Banking Law.
Upon
the
execution of the Assignment and Assumption Agreement by the parties thereto,
the
Applicable Trust shall be terminated, the Applicable Certificateholders shall
receive beneficial interests in the Related Trust in exchange for their
interests in the Applicable Trust equal to their respective beneficial interests
in the Applicable Trust, and the Outstanding Applicable Certificates
representing Fractional Undivided Interests in the Applicable Trust shall be
deemed for all purposes of the Agreement and the Related Pass Through Trust
Agreement, without further signature or action of any party or Applicable
Certificateholder, to be certificates representing the same fractional undivided
interests in the Related Trust and its trust property. By acceptance of its
Applicable Certificate, each Applicable Certificateholder consents to such
assignment, transfer and delivery of the Trust Property to the trustee of the
Related Trust upon the execution and delivery of the Assignment and Assumption
Agreement.
In
connection with the occurrence of the event set forth in clause (B) above,
notice of such termination, specifying the Distribution Date upon which the
Applicable Certificateholders may surrender their Applicable Certificates to
the
Trustee for payment of the final distribution and cancellation, shall be mailed
promptly by the Trustee to Applicable Certificateholders not earlier than the
60th
day and
not later than the 15th
day next
preceding such final Distribution Date specifying (A) the Distribution Date
upon
which the proposed final payment of the Applicable Certificates will be made
upon presentation and surrender of Applicable Certificates at the office or
agency of the Trustee therein specified, (B) the amount of any such proposed
final payment, and (C) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Applicable Certificates at the office or agency of the
Trustee therein specified. The Trustee shall give such notice to the Registrar
at the time such notice is given to Applicable Certificateholders. Upon
presentation and surrender of the Applicable Certificates in accordance with
such notice, the Trustee shall cause to be distributed to Applicable
Certificateholders such final payments.
In
the
event that all of the Applicable Certificateholders shall not surrender their
Applicable Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Trustee shall give a second
written notice to the remaining Applicable Certificateholders to surrender
their
Applicable Certificates for cancellation and receive the final distribution
with
respect thereto. No additional interest shall accrue on the Applicable
Certificates after the Distribution Date specified in the first written notice.
In the event that any money held by the Trustee for the payment of distributions
on the Applicable Certificates shall remain unclaimed for two years (or such
lesser time as the Trustee shall be satisfied, after sixty days' notice from
the
Company, is one month prior to the escheat period provided under applicable
law)
after the final distribution date with respect thereto, the Trustee shall pay
to
each Loan Trustee the appropriate amount of money relating to such Loan Trustee
and shall give written notice thereof to the Company.
(b)
The
provisions of this Section 7.01 supersede and replace the provisions of Section
11.01 of the Basic Agreement in its entirety, with respect to the Applicable
Trust.
MISCELLANEOUS
PROVISIONS
Section 8.01.
Basic
Agreement Ratified.
Except
and so far as herein expressly provided, all of the provisions, terms and
conditions of the Basic Agreement are in all respects ratified and confirmed;
and the Basic Agreement and this Trust Supplement shall be taken, read and
construed as one and the same instrument. All replacements of provisions of,
and
other modifications of the Basic Agreement set forth in this Trust Supplement
are solely with respect to the Applicable Trust.
Section
8.02. GOVERNING
LAW.
THE AGREEMENT AND, UNTIL THE TRANSFER DATE, THE APPLICABLE CERTIFICATES SHALL
BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
THIS SECTION 8.02 SUPERSEDES AND REPLACES SECTION 12.05 OF THE BASIC
AGREEMENT,
WITH RESPECT TO THE APPLICABLE TRUST.
Section
8.03. Execution
in Counterparts.
This
Trust Supplement may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
and the same instrument.
Section
8.04. Intention
of Parties.
The
parties hereto intend that the Applicable Trust be classified for U.S. federal
income tax purposes as a grantor trust under Subpart E, Part I of Subchapter
J
of the Internal Revenue Code of 1986, as amended, and not as a trust or
association taxable as a corporation or as a partnership. Each Applicable
Certificateholder and Investor, by its acceptance of its Applicable Certificate
or a beneficial interest therein, agrees to treat the Applicable Trust as a
grantor trust for all U.S. federal, state and local income tax purposes. The
powers granted and obligations undertaken pursuant to the Agreement shall be
so
construed so as to further such intent.
IN
WITNESS WHEREOF, the Company and the Trustee have caused this Trust Supplement
to be duly executed by their respective officers thereto duly authorized, as
of
the day and year first written above.
|
CONTINENTAL
AIRLINES, INC.
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
|
WILMINGTON
TRUST COMPANY,
as Trustee |
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
FORM OF CERTIFICATE
Certificate
No.
[Unless
this certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"),
to
Issuer or its agent for registration of transfer, exchange or payment, and
any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment
is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch the registered owner hereof,
Cede & Co., has an interest herein.]*
CONTINENTAL
AIRLINES PASS THROUGH TRUST 2007-1B-O
Continental
Airlines Pass Through Certificate, Series 2007-1B-O
Issuance
Date: April 10, 2007
Final
Maturity Date: October 19, 2023
Evidencing
A Fractional Undivided Interest In The Continental Airlines Pass Through Trust
2007-1B-O, The Property Of Which Shall Include Certain Equipment Notes Each
Secured By An Aircraft Owned By Continental Airlines, Inc.
$[_____________]
Fractional Undivided Interest
representing
0.0000000000% of the Trust per $1,000 face amount
THIS
CERTIFIES THAT __________, for value received, is the registered owner of a
$___________ (___________________________________________________ DOLLARS)
Fractional Undivided Interest in the Continental Airlines Pass Through Trust
2007-1B-O (the "Trust")
created by Wilmington Trust Company, as trustee (the "Trustee"),
pursuant to a Pass Through Trust Agreement, dated as of September 25, 1997
(the
"Basic
Agreement"),
between the Trustee and Continental Airlines, Inc., a Delaware corporation
(the
"Company"),
as
*
This
legend to appear on Book-Entry Certificates to be deposited with
the Depository
Trust Company.
supplemented
by Trust Supplement No. 2007-1B-O thereto, dated as of April 10, 2007 (the
"Trust
Supplement"
and,
together with the Basic Agreement, the "Agreement"),
between the Trustee and the Company, a summary of certain of the pertinent
provisions of which is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them
in
the Agreement. This Certificate is one of the duly authorized Certificates
designated as "Continental Airlines Pass Through Certificates, Series 2007-1B-O"
(herein called the "Certificates").
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement. By virtue of its acceptance hereof, the holder
of
this Certificate (the "Certificateholder"
and,
together with all other holders of Certificates issued by the Trust, the
"Certificateholders")
assents to and agrees to be bound by the provisions of the Agreement and the
Intercreditor Agreement. The property of the Trust includes certain Equipment
Notes and all rights of the Trust to receive payments under the Intercreditor
Agreement and the Liquidity Facility (the "Trust
Property").
Each
issue of the Equipment Notes is secured by, among other things, a security
interest in an Aircraft owned by the Company.
The
Certificates represent Fractional Undivided Interests in the Trust and the
Trust
Property and have no rights, benefits or interest in respect of any other
separate trust established pursuant to the terms of the Basic Agreement for
any
other series of certificates issued pursuant thereto.
Subject
to and in accordance with the terms of the Agreement and the Intercreditor
Agreement, from funds then available to the Trustee, there will be distributed
on April 19 and October 19 of each year (a "Regular
Distribution Date")
commencing October 19, 2007, to the Person in whose name this Certificate is
registered at the close of business on the 15th day preceding the Regular
Distribution Date, an amount in respect of the Scheduled Payments on the
Equipment Notes due on such Regular Distribution Date, the receipt of which
has
been confirmed by the Trustee, equal to the product of the percentage interest
in the Trust evidenced by this Certificate and an amount equal to the sum of
such Scheduled Payments. Subject to and in accordance with the terms of the
Agreement and the Intercreditor Agreement, in the event that Special Payments
on
the Equipment Notes are received by the Trustee, from funds then available
to
the Trustee, there shall be distributed on the applicable Special Distribution
Date, to the Person in whose name this Certificate is registered at the close
of
business on the 15th day preceding the Special Distribution Date, an amount
in respect of such Special Payments on the Equipment Notes, the receipt of
which
has been confirmed by the Trustee, equal to the product of the percentage
interest in the Trust evidenced by this Certificate and an amount equal to
the
sum of such Special Payments so received. If a Regular Distribution Date or
Special Distribution Date is not a Business Day, distribution shall be made
on
the immediately following Business Day with the same force and effect as if
made
on such Regular Distribution Date or Special Distribution Date and interest
shall accrue during the intervening period. The Trustee shall mail notice of
each Special Payment and the Special Distribution Date therefor to the
Certificateholder of this Certificate.
Distributions
on this Certificate will be made by the Trustee by check mailed to the Person
entitled thereto, without presentation or surrender of this Certificate or
the
making of any notation hereon, except that with respect to Certificates
registered on the Record Date in the name of a Clearing Agency (or its nominee),
such distribution shall be made by wire transfer.
Except
as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after notice mailed by the Trustee
of the pendency of such distribution and only upon presentation and surrender
of
this Certificate at the office or agency of the Trustee specified in such
notice.
The
Certificates do not represent a direct obligation of, or an obligation
guaranteed by, or an interest in, the Company or the Trustee or any affiliate
thereof. The Certificates are limited in right of payment, all as more
specifically set forth on the face hereof and in the Agreement. All payments
or
distributions made to Certificateholders under the Agreement shall be made
only
from the Trust Property and only to the extent that the Trustee shall have
sufficient income or proceeds from the Trust Property to make such payments
in
accordance with the terms of the Agreement. Each Certificateholder of this
Certificate, by its acceptance hereof, agrees that it will look solely to the
income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for information with respect to the interests, rights, benefits,
obligations, privileges, and duties evidenced hereby. A copy of the Agreement
may be examined during normal business hours at the principal office of the
Trustee, and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Certificateholders under the Agreement at any time by the
Company and the Trustee with the consent of the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less
than
a majority in interest in the Trust. Any such consent by the Certificateholder
of this Certificate shall be conclusive and binding on such Certificateholder
and upon all future Certificateholders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Certificateholders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations set forth therein,
the transfer of this Certificate is registrable in the Register upon surrender
of this Certificate for registration of transfer at the offices or agencies
maintained by the Trustee in its capacity as Registrar, or by any successor
Registrar, duly endorsed or accompanied by a written instrument of transfer
in
form satisfactory to the Trustee and the Registrar, duly executed by the
Certificateholder hereof or such Certificateholder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate Fractional Undivided Interest in the Trust will
be
issued to the designated transferee or transferees.
Under
certain circumstances set forth in Section 7.01 of the Trust Supplement, all
of
the Trustee's right, title and interest to the Trust Property may be assigned,
transferred and delivered to the Related Trustee of the Related Trust pursuant
to the Assignment and Assumption Agreement. Upon the effectiveness of such
Assignment and Assumption Agreement (the "Transfer"),
the
Trust shall be terminated, the Certificateholders shall receive beneficial
interests
in
the
Related Trust in exchange for their interests in the Trust equal to their
respective beneficial interests in the Trust, the Certificates representing
Fractional Undivided Interests in the Trust shall be deemed for all purposes
of
the Agreement and the Related Pass Through Trust Agreement to be certificates
representing the same fractional undivided interests in the Related Trust and
its trust property. Each Certificateholder, by its acceptance of this
Certificate or a beneficial interest herein, agrees to be bound by the
Assignment and Assumption Agreement and subject to the terms of the Related
Pass
Through Trust Agreement as a Certificateholder thereunder. From and after the
Transfer, unless and to the extent the context otherwise requires, references
herein to the Trust, the Agreement and the Trustee shall constitute references
to the Related Trust, the Related Pass Through Trust Agreement and trustee
of
the Related Trust, respectively.
The
Certificates are issuable only as registered Certificates without coupons in
minimum denominations of $1,000 Fractional Undivided Interest and integral
multiples thereof, except that one Certificate may be issued in a different
denomination. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
authorized denominations evidencing the same aggregate Fractional Undivided
Interest in the Trust, as requested by the Certificateholder surrendering the
same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee shall require payment of a sum sufficient to cover any tax
or
governmental charge payable in connection therewith.
Each
Certificateholder and Investor, by its acceptance of this Certificate or a
beneficial interest herein, agrees to treat the Trust as a grantor trust for
all
U.S. federal, state and local income tax purposes.
The
Trustee, the Registrar, and any agent of the Trustee or the Registrar may treat
the person in whose name this Certificate is registered as the owner hereof
for
all purposes, and neither the Trustee, the Registrar, nor any such agent shall
be affected by any notice to the contrary.
The
obligations and responsibilities created by the Agreement and the Trust created
thereby shall terminate upon the distribution to Certificateholders of all
amounts required to be distributed to them pursuant to the Agreement and the
disposition of all property held as part of the Trust Property.
Any
Person acquiring or accepting this Certificate or an interest herein will,
by
such acquisition or acceptance, be deemed to have represented and warranted
to
and for the benefit of the Company that either: (i) the assets of an employee
benefit plan subject to Title I of the Employee Retirement Income Security
Act
of 1974, as amended ("ERISA"),
or of
a plan subject to Section 4975 of the Internal Revenue Code of 1986, as amended
(the "Code"),
have
not been used to purchase or hold this Certificate or an interest herein or
(ii) the purchase and holding of this Certificate or an interest herein are
exempt from the prohibited transaction restrictions of ERISA and the Code
pursuant to one or more prohibited transaction statutory or administrative
exemptions.
THE
AGREEMENT AND, UNTIL THE TRANSFER, THIS CERTIFICATE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS. THE RELATED PASS THROUGH TRUST AGREEMENT AND, FROM
AND AFTER THE TRANSFER, THIS CERTIFICATE SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
CONTINENTAL
AIRLINES PASS THROUGH TRUST 2007-1B-O
|
||
| |
|
|
| By: |
WILMINGTON
TRUST COMPANY,
as
Trustee
|
|
| By: | ||
|
Name:
Title:
|
||
A-5
FORM
OF
THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
WILMINGTON
TRUST COMPANY,
as
Trustee
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
[DTC
Letter of Representations]
FORM
OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
Continental
Airlines Pass Through Trust 2007-1B-O
ASSIGNMENT
AND ASSUMPTION AGREEMENT (2007-1B-O), dated ________ __, ____ (the
"Assignment
Agreement"),
between Wilmington Trust Company, a Delaware banking corporation ("WTC"),
not
in its individual capacity except as expressly provided herein, but solely
as
trustee under the Pass Through Trust Agreement dated as of September 25, 1997
(as amended or modified from time to time, the "Basic
Agreement"),
as
supplemented by the Trust Supplement No. 2007-1B-O dated as of April 10, 2007
(the "Trust
Supplement"
and
together with the Basic Agreement, the "Agreement")
in
respect of the Continental Airlines Pass Through Trust 2007-1B-O (the
"Assignor"),
and
Wilmington Trust Company, a Delaware banking corporation, not in its individual
capacity except as expressly provided herein, but solely as trustee under the
Basic Agreement as supplemented by the Trust Supplement No. 2007-1B-S dated
as
of April 10, 2007 (the "New
Supplement",
and,
together with the Basic Agreement, the "New Agreement")
in
respect of the Continental Airlines Pass Through Trust 2007-1B-S (the
"Assignee").
W
I T N E
S S E T H:
WHEREAS,
the parties hereto desire to effect on the date hereof (the "Transfer
Date")
(a)
the transfer by the Assignor to the Assignee of all of the right, title and
interest of the Assignor in, under and with respect to, among other things,
the
Trust Property and each of the documents listed in Schedule I hereto (the
"Scheduled
Documents")
and
(b) the assumption by the Assignee of the obligations of the Assignor (i) under
the Scheduled Documents and (ii) in respect of the Applicable Certificates
issued under the Agreement; and
WHEREAS,
the Scheduled Documents permit such transfer upon satisfaction of certain
conditions heretofore or concurrently herewith being complied with;
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements herein contained, the parties hereto do hereby agree as follows
(capitalized terms used herein without definition having the meaning ascribed
thereto in the Agreement):
1. Assignment.
The
Assignor does hereby sell, assign, convey, transfer and set over unto the
Assignee as of the Transfer Date all of its present and future right, title
and
interest in, under and with respect to the Trust Property and the Scheduled
Documents and each other contract, agreement, document or instrument relating
to
the Trust Property or the Scheduled Documents (such other contracts, agreements,
documents or instruments, together with the Scheduled Documents, to be referred
to as the "Assigned
Documents"),
and
any proceeds therefrom, together with all documents and instruments evidencing
any of such right, title and interest.
2. Assumption.
The
Assignee hereby assumes for the benefit of the Assignor and each of the parties
listed in Schedule II hereto (collectively, the "Beneficiaries")
all of
the duties and obligations of the Assignor, whenever accrued, pursuant to the
Assigned Documents and hereby confirms that it shall be deemed a party to each
of the Assigned Documents to which the Assignor is a party and shall be bound
by
all the terms thereof (including the agreements and obligations of the Assignor
set forth therein) as if therein named as the Assignor. Further, the Assignee
hereby assumes for the benefit of the Assignor and the Beneficiaries all of
the
duties and obligations of the Assignor under the Outstanding Applicable
Certificates and hereby confirms that the Applicable Certificates representing
Fractional Undivided Interests under the Agreement shall be deemed for all
purposes of the Agreement and the New Agreement to be certificates representing
the same fractional undivided interests under the New Agreement equal to their
respective beneficial interests in the trust created under the
Agreement.
3. Effectiveness.
This
Assignment Agreement shall be effective upon the execution and delivery hereof
by the parties hereto, and each Applicable Certificateholder, by its acceptance
of its Applicable Certificate or a beneficial interest therein, agrees to be
bound by the terms of this Assignment Agreement.
4. Payments.
The
Assignor hereby covenants and agrees to pay over to the Assignee, if and when
received following the Transfer Date, any amounts (including any sums payable
as
interest in respect thereof) paid to or for the benefit of the Assignor that,
under Section 1 hereof, belong to the Assignee.
5. Further
Assurances.
The
Assignor shall, at any time and from time to time, upon the request of the
Assignee, promptly and duly execute and deliver any and all such further
instruments and documents and take such further action as the Assignee may
reasonably request to obtain the full benefits of this Assignment Agreement
and
of the rights and powers herein granted. The Assignor agrees to deliver any
Applicable Certificates, and all Trust Property, if any, then in the physical
possession of the Assignor, to the Assignee.
6. Representations
and Warranties.
(a) The
Assignee represents and warrants to the Assignor and each of the Beneficiaries
that:
(i) it
has
all requisite power and authority and legal right to enter into and carry out
the transactions contemplated hereby and to carry out and perform the
obligations of the "Pass Through Trustee" under the Assigned
Documents;
(ii) on
and as
of the date hereof, the representations and warranties of the Assignee set
forth
in Section 7.15 of the Basic Agreement and Section 5.04 of the New Supplement
are true and correct.
(b) The
Assignor represents and warrants to the Assignee that:
(i) it
is
duly incorporated, validly existing and in good standing under the laws of
the
State of Delaware and has the full trust power, authority and legal right under
the
laws
of the State of Delaware and the United States pertaining to its trust and
fiduciary powers to execute and deliver this Assignment Agreement;
(ii) the
execution and delivery by it of this Assignment Agreement and the performance
by
it of its obligations hereunder have been duly authorized by it and will not
violate its articles of association or by-laws or the provisions of any
indenture, mortgage, contract or other agreement to which it is a party or
by
which it is bound; and
(iii) this
Assignment Agreement constitutes the legal, valid and binding obligations of
it
enforceable against it in accordance with its terms, except as the same may
be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by general
principles of equity, whether considered in a proceeding at law or in
equity.
7. GOVERNING
LAW.
THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH
THE LAWS OF THE STATE OF NEW YORK INCLUDING MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE.
8. Counterparts.
This
Assignment Agreement may be executed in any number of counterparts, all of
which
together shall constitute a single instrument. It shall not be necessary that
any counterpart be signed by both parties so long as each party shall sign
at
least one counterpart.
9. Third
Party Beneficiaries.
The
Assignee hereby agrees, for the benefit of the Beneficiaries, that its
representations, warranties and covenants contained herein are also intended
to
be for the benefit of each Beneficiary, and each Beneficiary shall be deemed
to
be an express third party beneficiary with respect thereto, entitled to enforce
directly and in its own name any rights or claims it may have against such
party
as such beneficiary.
IN
WITNESS WHEREOF, the parties hereto, through their respective officers thereunto
duly authorized, have duly executed this Assignment Agreement as of the day
and
year first above written.
|
ASSIGNOR:
|
||
| |
|
WILMINGTON
TRUST
COMPANY, not in its individual capacity except as expressly provided
herein, but solely as trustee under the Pass Through Trust Agreement
and
Trust Supplement in respect of the Continental Airlines Pass Through
Trust
2007-1B-O
|
| By: | ||
| Title: | ||
|
ASSIGNEE:
|
||
| |
|
WILMINGTON
TRUST COMPANY, not in its individual capacity except as expressly
provided
herein, but solely as trustee under the Pass Through Trust
Agreement and
Trust Supplement in respect of the Continental Airlines Pass
Through Trust
2007-1B-S
|
| By: | ||
| Title: | ||
Schedule
I
Schedule
of Assigned Documents
(1) Intercreditor
Agreement dated as of April 10, 2007 among the Trustee, the Other Trustees,
the
Liquidity Provider, the liquidity provider relating to the Class A Certificates
and the Subordination Agent.
(2) Escrow
and Paying Agent Agreement (Class B) dated as of April 10, 2007 among the Escrow
Agent, the Underwriters, the Trustee and the Paying Agent.
(3) Note
Purchase Agreement dated as of April 10, 2007 among the Company, the Trustee,
the Other Trustees, the Depositary, the Escrow Agent, the Paying Agent and
the
Subordination Agent.
(4) Deposit
Agreement (Class B) dated as of April 10, 2007 between the Escrow Agent and
the
Depositary.
(5) Each
of
the Operative Agreements (as defined in the Participation Agreement for each
Aircraft) in effect as of the Transfer Date.
Schedule
II
Schedule
of Beneficiaries
Wilmington
Trust Company, not in its individual capacity but solely as Subordination
Agent
Wilmington
Trust Company, not in its individual capacity but solely as Paying
Agent
RZB
Finance LLC, as Liquidity Provider
Raiffeisen
Zentralbank Österreich Aktiengesellschaft, as Liquidity Guarantor
Credit
Suisse, New York Branch, as Depositary
Continental
Airlines, Inc.
Xxxxxx
Xxxxxxx & Co. Incorporated, as Underwriter
Credit
Suisse Securities (USA) LLC, as Underwriter
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
as
Underwriter
Citigroup
Global Markets Inc.,
as
Underwriter
UBS
Securities LLC,
as
Underwriter
Calyon
Securities (USA) Inc.,
as
Underwriter
X.X.Xxxxxx
Securities Inc.,
as
Underwriter
Xxxxx
Fargo Bank Northwest, National Association, as Escrow Agent
Each
of
the other parties to the Assigned Documents
