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NOTE PURCHASE AGREEMENT
Dated as of November 3, 1998
Among
CONTINENTAL AIRLINES, INC.,
WILMINGTON TRUST COMPANY,
as Pass Through Trustee under each of the
Pass Through Trust Agreements
WILMINGTON TRUST COMPANY,
as Subordination Agent
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Escrow Agent
and
WILMINGTON TRUST COMPANY,
as Paying Agent
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INDEX TO NOTE PURCHASE AGREEMENT
Page
SECTION 1. Financing of New Aircraft................................ 2
SECTION 2. Conditions Precedent..................................... 6
SECTION 3. Representations and Warranties........................... 6
SECTION 4. Covenants................................................ 10
SECTION 5. Notices.................................................. 11
SECTION 6. Expenses................................................. 11
SECTION 7. Further Assurances....................................... 12
SECTION 8. Miscellaneous............................................ 12
SECTION 9. Governing Law............................................ 13
SCHEDULES
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Schedule I New Aircraft and Scheduled Delivery Months
Schedule II Trust Supplements
Schedule III Deposit Agreements
Schedule IV Escrow and Paying Agent Agreements
Schedule V Mandatory Document Terms
Schedule VI Mandatory Economic Terms
Schedule VII Aggregate Amortization Schedule
ANNEX
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Annex A Definitions
EXHIBITS
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Exhibit A-1 Form of Leased Aircraft Participation Agreement
Exhibit A-2 Form of Lease
Exhibit A-3 Form of Leased Aircraft Indenture
Exhibit A-4 Form of Aircraft Purchase Agreement Assignment
Exhibit A-5 Form of Leased Aircraft Trust Agreement
Exhibit A-6 Form of Special Indenture
Exhibit B Form of Delivery Notice
Exhibit C-1 Form of Owned Aircraft Participation Agreement
Exhibit C-2 Form of Owned Aircraft Indenture
Exhibit D Form of Special Addition to Participation
Agreement
Exhibit E Special Revisions to Section 6.2 of the
Participation Agreement
NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT, dated as of November 3, 1998, among
(i)CONTINENTAL AIRLINES, INC., a Delaware corporation (the "COMPANY"),
(ii)WILMINGTON TRUST COMPANY ("WTC"), a Delaware banking corporation, not in its
individual capacity except as otherwise expressly provided herein, but solely as
trustee (in such capacity together with its successors in such capacity, the
"PASS THROUGH TRUSTEE") under each of the five separate Pass Through Trust
Agreements (as defined below), (iii) WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as subordination agent and trustee (in such capacity
together with its successors in such capacity, the "SUBORDINATION AGENT") under
the Intercreditor Agreement (as defined below), (iv)FIRST SECURITY BANK,
NATIONAL ASSOCIATION, a national banking association, as Escrow Agent (in such
capacity together with its successors in such capacity, the "ESCROW AGENT"),
under each of the Escrow and Paying Agent Agreements (as defined below) and (v)
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Paying Agent (in
such capacity together with its successors in such capacity, the "PAYING AGENT")
under each of the Escrow and Paying Agent Agreements.
W I T N E S S E T H:
--------------------
WHEREAS, capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in Annex A hereto;
WHEREAS, the Company has obtained commitments from the Manufacturer
pursuant to the Aircraft Purchase Agreements for the delivery of the 14 aircraft
listed in Schedule I hereto (together with any aircraft substituted therefor in
accordance with an Aircraft Purchase Agreement prior to the delivery thereof,
the "NEW AIRCRAFT");
WHEREAS, pursuant to the Basic Pass Through Trust Agreement and each of
the Trust Supplements set forth in Schedule II hereto, and concurrently with the
execution and delivery of this Agreement, separate grantor trusts (collectively,
the "PASS THROUGH TRUSTS" and, individually, a "PASS THROUGH TRUST") have been
created to facilitate certain of the transactions contemplated hereby,
including, without limitation, the issuance and sale of pass through
certificates pursuant thereto (collectively, the "CERTIFICATES") to provide for
a portion of the financing of the New Aircraft;
WHEREAS, the Company has entered into the Underwriting Agreement dated
as of October 21, 1998 (the "UNDERWRITING AGREEMENT") with the several
underwriters (the "UNDERWRITERS") named therein, which provides that the Company
will cause each Pass Through Trustee to issue and sell the Certificates to the
Underwriters;
WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) the Escrow Agents and the Depositary entered into the Deposit
Agreements set forth in Schedule III hereto (the "DEPOSIT AGREEMENTS") whereby
the applicable Escrow Agent agreed to direct the Underwriters to make certain
deposits referred to therein on the Issuance Date (the "INITIAL DEPOSITS") and
to permit the applicable Pass Through Trustee to make additional deposits from
time to time thereafter (the Initial Deposits together with such additional
deposits are collectively referred to as the "DEPOSITS") and (ii) the Pass
Through Trustees, the Underwriters, the Paying Agents and the Escrow Agents
entered into the Escrow and Paying Agent Agreements set forth in Schedule IV
hereto (the "ESCROW AND PAYING AGENT AGREEMENTS") whereby, among other things,
(a) the Underwriters agreed to deliver an amount equal to the amount of the
Initial Deposits to the Depositary on behalf of the applicable Escrow Agent and
(b) the applicable Escrow Agent, upon the Depositary receiving such amount, has
agreed to deliver escrow receipts to be affixed to each Certificate;
WHEREAS, prior to the delivery of each New Aircraft, the Company will
determine whether to enter into a leveraged lease transaction as lessee with
respect to such New Aircraft (a "LEASED AIRCRAFT") or to purchase as owner such
New Aircraft (an "OWNED AIRCRAFT") and which series of Equipment Notes will be
issued with respect to such New Aircraft, and the Company will give to the Pass
Through Trustee a Delivery Notice (as defined below) specifying its election;
WHEREAS, upon receipt of a Delivery Notice with respect to a New
Aircraft, subject to the terms and conditions of this Agreement, the applicable
Pass Through Trustees will enter into the applicable Financing Agreements
relating to such New Aircraft;
WHEREAS, upon the delivery of each New Aircraft, each applicable Pass
Through Trustee will fund its purchase of Equipment Notes with the proceeds of
one or more Deposits withdrawn by the applicable Escrow Agent under the related
Deposit Agreement bearing the same interest rate as the Certificates issued by
such Pass Through Trust; and
WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) Westdeutsche Landesbank Girozentrale, a public law banking
institution organized under the laws of North Rhine-Westphalia, Germany, acting
through its New York branch ("WLB"), has entered into a separate revolving
credit agreement with respect to each of the Class A-1 Pass Through Trust and
the Class A-2 Pass Through Trust, and Xxxxxx Xxxxxxx Capital Services, Inc., a
Delaware corporation (together with WLB, the "LIQUIDITY PROVIDERS"), has entered
into a separate revolving credit agreement with respect to each of the Class B
Pass Through Trust, the Class C-1 Pass Through Trust and the Class C-2 Pass
Through Trust (each such revolving credit agreement with a Liquidity Provider, a
"LIQUIDITY FACILITY"), in each case with the Subordination Agent, as agent for
the Pass Through Trustee on behalf of each such Pass Through Trust and (ii)the
Pass Through Trustee, the Liquidity Providers and the Subordination Agent have
entered into the Intercreditor Agreement, dated as of the date hereof (the
"INTERCREDITOR AGREEMENT");
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements herein contained and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. FINANCING OF NEW AIRCRAFT. (a) The Company confirms that it
has entered into the Aircraft Purchase Agreements with the Manufacturer pursuant
to which the Company has agreed to purchase, and the Manufacturer has agreed to
deliver, the New Aircraft in the months specified in Schedule I hereto, all on
and subject to terms and conditions specified in the applicable Aircraft
Purchase Agreement. The Company agrees to finance the New Aircraft in the manner
provided herein, all on and subject to the terms and conditions hereof and of
the relevant Financing Agreements.
(b) In furtherance of the foregoing, the Company agrees to give the
parties hereto, the Depositary and each of the Rating Agencies not less than two
Business Days' prior notice (a "DELIVERY NOTICE") of the scheduled delivery date
(the "SCHEDULED DELIVERY DATE") (or, in the case of a substitute Delivery Notice
under Section 1(e) or (f) hereof, one Business Day's prior notice) in respect of
each New Aircraft under the applicable Aircraft Purchase Agreement, which notice
shall:
(i) specify whether the Company has elected to treat such New Aircraft
as a Leased Aircraft or an Owned Aircraft;
(ii) specify the Scheduled Delivery Date of such New Aircraft (which
shall be a Business Day before the Cut-off Date and, except as provided in
Section 1(f) hereof, the date (the "FUNDING DATE") on which the financing
therefor in the manner provided herein shall be consummated);
(iii) instruct each Pass Through Trustee being requested to purchase
Equipment Notes pursuant to such Delivery Notice (the "APPLICABLE PASS
THROUGH TRUSTEES") to instruct the relevant Escrow Agent to provide a
Notice of Purchase Withdrawal to the Depositary with respect to the
Equipment Notes to be issued in connection with the financing of such New
Aircraft;
(iv) instruct each Applicable Pass Through Trustee to enter into the
Participation Agreement included in the Financing Agreements with respect
to such Aircraft in such form and at such a time on or before the Funding
Date specified in such Delivery Notice and to perform its obligations
thereunder;
(v) specify the aggregate principal amount of each series of Equipment
Notes, if any, to be issued, and purchased by the Applicable Pass Through
Trustees, in connection with the financing of such New Aircraft scheduled
to be delivered on such Funding Date (which shall in all respects comply
with the Mandatory Economic Terms); and
(vi) if such New Aircraft is to be a Leased Aircraft, certify that the
related Owner Participant (A) is not an Affiliate of the Company and (B)
based on the representations of such Owner Participant, is either (1) a
Qualified Owner Participant or (2) any other person the obligations of
which under the Owner Participant Agreements (as defined in the applicable
Participation Agreement) are guaranteed by a Qualified Owner Participant.
Notwithstanding the foregoing, in the event the date of issuance of the
Certificates coincides with the Scheduled Delivery Date of the first Aircraft to
be financed pursuant to the terms hereof, the Delivery Notice therefor may be
delivered to the parties hereto on such Scheduled Delivery Date.
(c) Upon receipt of a Delivery Notice, the Applicable Pass Through
Trustees shall, and shall cause the Subordination Agent to, enter into and
perform their obligations under the Participation Agreement specified in such
Delivery Notice, PROVIDED that such Participation Agreement and the other Lease
Financing Agreements or Owner Financing Agreements to be entered into pursuant
to such Participation Agreement shall be in the forms thereof annexed hereto in
all material respects with such changes therein as shall have been requested by
the related Owner Participant (in the case of Lease Financing Agreements) or by
the initial purchasers of the Series D Equipment Notes or Class D Pass Through
Certificates, agreed to by the Company and, if modified in any material respect,
as to which Rating Agency Confirmation shall have been obtained from each Rating
Agency by the Company (to be delivered by the Company to the Applicable Pass
Through Trustees on or before the relevant Delivery Date, it being understood
that if Rating Agency Confirmation shall have been received with respect to any
Financing Agreements and such Financing Agreements are utilized for subsequent
New Aircraft (or Substitute Aircraft) without material modifications, no
additional Rating Agency Confirmation shall be required); PROVIDED, HOWEVER,
that the relevant Financing Agreements as executed and delivered shall not vary
the Mandatory Economic Terms and shall contain the Mandatory Document Terms.
Notwithstanding the foregoing, (i) if The Boeing Company or General Electric
Company, or any of their respective Affiliates, is the Owner Participant with
respect to any Leased Aircraft, the Leased Aircraft Participation Agreement to
be entered into pursuant to the Delivery Notice with respect to such Leased
Aircraft may be modified, if agreed to by the Company, from the form annexed
hereto (A) to add a Section 16 thereto substantially in the form of Exhibit D
hereto and (B) in the case of The Boeing Company or any of its Affiliates,
Section 6.2 may be changed as set forth in Exhibit E hereto, and such Leased
Aircraft Participation Agreement, as so modified, shall be deemed (1) to be
substantially in the form thereof annexed hereto and (2) by virtue of such
modification not to be inconsistent with the Mandatory Document Terms and (ii)
if any Financing Document annexed hereto shall not have been reviewed by either
Rating Agency prior to the Issuance Date, then, prior to the use thereof in
connection with the financing of any Aircraft hereunder, the Company shall
obtain from each Rating Agency a confirmation that the use of such Financing
Documents would not result in (A) a reduction of the rating for any Class of
Certificates below the then current rating for such Class of Certificates or (B)
a withdrawal or suspension of the rating of any Class of Certificates. With
respect to each New Aircraft, the Company shall cause WTC (or such other person
that meets the eligibility requirements to act as loan trustee under the Leased
Aircraft Indenture, Owned Aircraft Indenture or Special Indenture) to execute as
Loan Trustee the Financing Agreements relating to such Aircraft to which such
Loan Trustee is intended to be a party, and shall concurrently therewith execute
such Financing Agreements to which the Company is intended to be a party and
perform its respective obligations thereunder. Upon the request of either Rating
Agency, the Company shall deliver or cause to be delivered to each Rating Agency
a true and complete copy of each Financing Agreement relating to the financing
of each New Aircraft together with a true and complete set of the closing
documentation (including legal opinions) delivered to the related Loan Trustee,
Subordination Agent and Pass Through Trustee under the related Participation
Agreement.
(d) [Intentionally omitted.]
(e) If after giving any Delivery Notice, there shall be a delay in the
delivery of a New Aircraft, or if on the Scheduled Delivery Date of a New
Aircraft the financing thereof in the manner contemplated hereby shall not be
consummated for whatever reason, the Company shall give the parties hereto
prompt notice thereof. Concurrently with the giving of such notice of
postponement or subsequently, the Company shall give the parties hereto a
substitute Delivery Notice specifying the date to which such delivery and
related financing shall have been re-scheduled (which shall be a Business Day
before the Cut-off Date on which the Escrow Agents shall be entitled to withdraw
one or more Deposits under each of the applicable Deposit Agreements to enable
each Applicable Pass Through Trustee to fund its purchase of the related
Equipment Notes). Upon receipt of any such notice of postponement, each
Applicable Pass Through Trustee shall comply with its obligations under Section
5.01 of each of the Trust Supplements and thereafter the financing of the
relevant New Aircraft shall take place on the re-scheduled Delivery Date
therefor (all on and subject to the terms and conditions of the relevant
Financing Agreements) unless further postponed as provided herein.
(f) Anything in this Section 1 to the contrary notwithstanding, the
Company shall have the right at any time on or before the Scheduled Delivery
Date of any New Aircraft, and subsequent to its giving a Delivery Notice
therefor, to postpone the Scheduled Delivery Date of such New Aircraft so as to
enable the Company to change its election to treat such New Aircraft as a Leased
Aircraft or an Owned Aircraft by written notice of such postponement to the
other parties hereto. The Company shall subsequently give the parties hereto a
substitute Delivery Notice complying with the provisions of Section 1(b) hereof
and specifying the new Funding Date for such postponed New Aircraft (which shall
be a Business Day occurring before the Cut-off Date and on which the Escrow
Agents shall be entitled to withdraw Deposits under each of the applicable
Deposit Agreements sufficient to enable each Applicable Pass Through Trustee to
fund its purchase of the related Equipment Notes). In addition, the Company
shall have the further right, anything in this Section 1 to the contrary
notwithstanding, to accept delivery of a New Aircraft under the applicable
Aircraft Purchase Agreement on the Delivery Date thereof by utilization of
bridge financing of such New Aircraft and promptly thereafter give the parties
hereto a Delivery Notice specifying a Funding Date not later than 30 days after
the Delivery Date of such New Aircraft and no later than the Cut-off Date and
otherwise complying with the provisions of Section 1(b) hereof. All other terms
and conditions of this Note Purchase Agreement shall apply to the financing of
any such New Aircraft on the re-scheduled Funding Date therefor except (i)the
re-scheduled Funding Date shall be deemed the Delivery Date of such New Aircraft
for all purposes of this Section 1 and (ii)the related Financing Agreements
shall be amended to reflect the original delivery of such New Aircraft to the
Company.
(g) If the Scheduled Delivery Date for any New Aircraft is delayed (a)
more than 30 days beyond the last day of the month set forth opposite such New
Aircraft under the heading "Scheduled Delivery Months" in Schedule I hereto or
(b) beyond July 31, 1999, the Company may identify for delivery a substitute
aircraft therefor meeting the following conditions (a "SUBSTITUTE AIRCRAFT"):
(i) a Substitute Aircraft must be a Boeing 777-200, 757-200, 737-700 or 737-800
aircraft manufactured after the date of this Agreement, (ii) one or more
Substitute Aircraft of the same or different types may be substituted for one or
more New Aircraft of the same or different types so long as after giving effect
thereto such substitution does not vary the Mandatory Economic Terms and (iii)
the Company shall be obligated to obtain Rating Agency Confirmation in respect
of the replacement of any New Aircraft by Substitute Aircraft. Upon the
satisfaction of the conditions set forth above with respect to a Substitute
Aircraft, the New Aircraft to be replaced shall cease to be subject to this
Agreement and all rights and obligations of the parties hereto concerning such
New Aircraft shall cease, and such Substitute Aircraft shall become and
thereafter be subject to the terms and conditions of this Agreement to the same
extent as such New Aircraft.
(h) The Company shall have no liability for the failure of the Pass
Through Trustees to purchase Equipment Notes with respect to any New Aircraft or
Substitute Aircraft.
(i) The parties agree that if, in connection with the delivery of a New
Aircraft or Substitute Aircraft, any Owner Participant who is to be a party to
any Lease Financing Agreement or Special Financing Agreement shall not be a
"Citizen of the United States" within the meaning of Section 40102(a)(15) of the
Act, then the applicable Lease Financing Agreements shall be modified,
consistent with the Mandatory Document Terms, to require such Owner Participant
to enter into a voting trust, voting powers or similar arrangement satisfactory
to the Company that (A) enables such New Aircraft or Substitute Aircraft to be
registered in the United States and (B) complies with the FAA regulations issued
under the Act applicable thereto.
(j) Anything herein to the contrary notwithstanding, the Company shall
not have the right, and shall not be entitled, at any time to request the
issuance of Equipment Notes of any series to any Pass Through Trustee in an
aggregate principal amount in excess of the amount of the Deposits then
available for withdrawal by the Escrow Agent under and in accordance with the
provisions of the related Deposit Agreement.
SECTION 2. CONDITIONS PRECEDENT. The obligation of the Pass Through
Trustees to enter into, and to cause the Subordination Agent to enter into, any
Participation Agreement as directed pursuant to a Delivery Notice and to perform
its obligations under such Participation Agreement is subject to satisfaction of
the following conditions:
(a) no Triggering Event shall have occurred; and
(b) the Company shall have delivered a certificate to each such Pass
Through Trustee and each Liquidity Provider stating that (i) such
Participation Agreement and the other Financing Agreements to be entered
into pursuant to such Participation Agreement do not vary the Mandatory
Economic Terms and contain the Mandatory Document Terms and (ii)any
substantive modification of such Financing Agreements from the forms
thereof attached to this Agreement do not materially and adversely affect
the Certificateholders, and such certification shall be true and correct.
Anything herein to the contrary notwithstanding, the obligation of each
Pass Through Trustee to purchase Equipment Notes shall terminate on the Cut-off
Date.
SECTION 3. REPRESENTATIONS AND WARRANTIES. (a) The Company represents
and warrants that:
(i) the Company is duly incorporated, validly existing and in
good standing under the laws of the State of Delaware and is a
"citizen of the United States" as defined in 49 U.S.C. Section 40102,
and has the full corporate power, authority and legal right under the
laws of the State of Delaware to execute and deliver this Agreement
and each Financing Agreement to which it will be a party and to carry
out the obligations of the Company under this Agreement and each
Financing Agreement to which it will be a party;
(ii) the execution and delivery by the Company of this Agreement
and the performance by the Company of its obligations under this
Agreement have been duly authorized by the Company and will not
violate its Certificate of Incorporation or by-laws or the provisions
of any indenture, mortgage, contract or other agreement to which it is
a party or by which it is bound; and
(iii) this Agreement constitutes the legal, valid and binding
obligation of the Company, enforceable against it in accordance with
its terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and by general principles of equity,
whether considered in a proceeding at law or in equity.
(b) WTC represents and warrants that:
(i) WTC is duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and is a "citizen of
the United States" as defined in 49 U.S.C. Section 40102, and has the
full corporate power, authority and legal right under the laws of the
State of Delaware and the United States pertaining to its banking,
trust and fiduciary powers to execute and deliver this Agreement and
each Financing Agreement to which it will be a party and to carry out
the obligations of WTC, in its capacity as Subordination Agent, Pass
Through Trustee or Paying Agent, as the case may be, under this
Agreement and each Financing Agreement to which it will be a party;
(ii) the execution and delivery by WTC, in its capacity as
Subordination Agent, Pass Through Trustee or Paying Agent, as the case
may be, of this Agreement and the performance by WTC, in its capacity
as Subordination Agent, Pass Through Trustee or Paying Agent, as the
case may be, of its obligations under this Agreement have been duly
authorized by WTC, in its capacity as Subordination Agent, Pass
Through Trustee or Paying Agent, as the case may be, and will not
violate its articles of association or by-laws or the provisions of
any indenture, mortgage, contract or other agreement to which it is a
party or by which it is bound; and
(iii) this Agreement constitutes the legal, valid and binding
obligations of WTC, in its capacity as Subordination Agent, Pass
Through Trustee or Paying Agent, as the case may be, enforceable
against it in accordance with its terms, except as the same may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally
and by general principles of equity, whether considered in a
proceeding at law or in equity.
(c) The Pass Through Trustee hereby confirms to each of the other
parties hereto that its representations and warranties set forth in Section
7.15 of the Basic Pass Through Trust Agreement and Section 5.04 of each
Trust Supplement are true and correct as of the date hereof.
(d) The Subordination Agent represents and warrants that:
(i) the Subordination Agent is duly incorporated, validly
existing and in good standing under the laws of the State of Delaware,
and has the full corporate power, authority and legal right under the
laws of the State of Delaware and the United States pertaining to its
banking, trust and fiduciary powers to execute and deliver this
Agreement and each Financing Agreement to which it is or will be a
party and to perform its obligations under this Agreement and each
Financing Agreement to which it is or will be a party;
(ii) this Agreement has been duly authorized, executed and
delivered by the Subordination Agent; this Agreement constitutes the
legal, valid and binding obligations of the Subordination Agent
enforceable against it in accordance with its terms, except as the
same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity, whether
considered in a proceeding at law or in equity;
(iii) none of the execution, delivery and performance by the
Subordination Agent of this Agreement contravenes any law, rule or
regulation of the State of Delaware or any United States governmental
authority or agency regulating the Subordination Agent's banking,
trust or fiduciary powers or any judgment or order applicable to or
binding on the Subordination Agent and do not contravene the
Subordination Agent's articles of association or by-laws or result in
any breach of, or constitute a default under, any agreement or
instrument to which the Subordination Agent is a party or by which it
or any of its properties may be bound;
(iv) neither the execution and delivery by the Subordination
Agent of this Agreement nor the consummation by the Subordination
Agent of any of the transactions contemplated hereby requires the
consent or approval of, the giving of notice to, the registration
with, or the taking of any other action with respect to, any Delaware
governmental authority or agency or any federal governmental authority
or agency regulating the Subordination Agent's banking, trust or
fiduciary powers;
(v) there are no Taxes payable by the Subordination Agent imposed
by the State of Delaware or any political subdivision or taxing
authority thereof in connection with the execution, delivery and
performance by the Subordination Agent of this Agreement (other than
franchise or other taxes based on or measured by any fees or
compensation received by the Subordination Agent for services rendered
in connection with the transactions contemplated by the Intercreditor
Agreement or any of the Liquidity Facilities), and there are no Taxes
payable by the Subordination Agent imposed by the State of Delaware or
any political subdivision thereof in connection with the acquisition,
possession or ownership by the Subordination Agent of any of the
Equipment Notes (other than franchise or other taxes based on or
measured by any fees or compensation received by the Subordination
Agent for services rendered in connection with the transactions
contemplated by the Intercreditor Agreement or any of the Liquidity
Facilities); and
(vi) there are no pending or threatened actions or proceedings
against the Subordination Agent before any court or administrative
agency which individually or in the aggregate, if determined adversely
to it, would materially adversely affect the ability of the
Subordination Agent to perform its obligations under this Agreement.
(e) The Escrow Agent represents and warrants that:
(i) the Escrow Agent is a national banking association duly
incorporated, validly existing and in good standing under the laws of
the United States and has the full corporate power, authority and
legal right under the laws of the United States pertaining to its
banking, trust and fiduciary powers to execute and deliver this
Agreement, each Deposit Agreement and each Escrow and Paying Agent
Agreement (collectively, the "ESCROW AGENT AGREEMENTS") and to carry
out the obligations of the Escrow Agent under each of the Escrow Agent
Agreements;
(ii) the execution and delivery by the Escrow Agent of each of
the Escrow Agent Agreements and the performance by the Escrow Agent of
its obligations hereunder and thereunder have been duly authorized by
the Escrow Agent and will not violate its articles of association or
by-laws or the provisions of any indenture, mortgage, contract or
other agreement to which it is a party or by which it is bound; and
(iii) each of the Escrow Agent Agreements constitutes the legal,
valid and binding obligations of the Escrow Agent enforceable against
it in accordance with its terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by
general principles of equity, whether considered in a proceeding at
law or in equity.
(f) The Paying Agent represents and warrants that:
(i) the Paying Agent is duly incorporated, validly existing and
in good standing under the laws of the State of Delaware and has the
full corporate power, authority and legal right under the laws of the
United States pertaining to its banking, trust and fiduciary powers to
execute and deliver this Agreement and the Escrow and Paying Agent
Agreement (collectively, the "PAYING AGENT AGREEMENTS") and to carry
out the obligations of the Paying Agent under each of the Paying Agent
Agreements;
(ii) the execution and delivery by the Paying Agent of each of
the Paying Agent Agreements and the performance by the Paying Agent of
its obligations hereunder and thereunder have been duly authorized by
the Paying Agent and will not violate its articles of association or
by-laws or the provisions of any indenture, mortgage, contract or
other agreement to which it is a party or by which it is bound; and
(iii) each of the Paying Agent Agreements constitutes the legal,
valid and binding obligations of the Paying Agent enforceable against
it in accordance with its terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by
general principles of equity, whether considered in a proceeding at
law or in equity.
SECTION 4. COVENANTS. (a) The Company covenants with each of the other
parties hereto that:
(i) [Intentionally omitted];
(ii) subject to Section 4(a)(iv) of this Agreement, the Company shall
at all times maintain its corporate existence and shall not wind up,
liquidate or dissolve or take any action, or fail to take any action, that
would have the effect of any of the foregoing;
(iii) the Company shall at all times remain a U.S. Air Carrier (as
defined in the Financing Agreements) and shall at all times be otherwise
certificated and registered to the extent necessary to entitle (i) in the
case of Leased Aircraft, the Owner Trustee (and the Loan Trustee as
assignee of the Owner Trustee's rights under each Lease) to the rights
afforded to lessors of aircraft equipment under Section 1110 and (ii) in
the case of Owned Aircraft, the Loan Trustee to the rights afforded to
secured parties of aircraft equipment under Section 1110;
(iv) Section 13.2.1 of each Lease is hereby incorporated by reference
herein;
(v) the Company agrees to provide written notice to each of the
parties hereto of the occurrence of the Cut-off Date no later than one
Business Day after the date thereof; such notice to refer specifically to
the Pass Through Trustee's obligation to assign, transfer and deliver all
of its right, title and interest to the Trust Property (as defined in each
Pass Through Trust Agreement) to the trustee of the Related Trust (as
defined in each Pass Through Trust Agreement) in accordance with Section
7.01 of each of the Trust Supplements; and
(vi) the Company shall not issue Series D Equipment Notes pursuant to
any Indenture, unless it shall have obtained written confirmation from each
Rating Agency that the issuance of such Series D Equipment Notes will not
result in (i) a reduction of the rating for any Class of Certificates below
the then current rating for such Class of Certificates or (ii) a withdrawal
or suspension of the rating of any Class of Certificates. If Series D
Equipment Notes are initially issued to other than the pass through trustee
for the Class D Certificates, the Company will cause such Series D
Equipment Notes to be subject to the provisions of the Intercreditor
Agreement that allow the "Controlling Party" (as defined in the
Intercreditor Agreement), during the continuance of an "Indenture Default"
(as defined in the Intercreditor Agreement), to direct the Loan Trustee in
taking action under the applicable Indenture.
(b) WTC, in its individual capacity, covenants with each of the other
parties to this Agreement that it will, immediately upon obtaining knowledge of
any facts that would cast doubt upon its continuing status as a "citizen of the
United States" as defined in 49 U.S.C. Section 40102 and promptly upon public
disclosure of negotiations in respect of any transaction which would or might
adversely affect such status, notify in writing all parties hereto of all
relevant matters in connection therewith. Upon WTC giving any such notice, WTC
shall, subject to Section 8.02 of any Indenture then entered into, resign as
Loan Trustee in respect of such Indenture.
SECTION 5. NOTICES. Unless otherwise specifically provided herein, all
notices required or permitted by the terms of this Agreement shall be in English
and in writing, and any such notice shall become effective upon being delivered
personally or, if promptly confirmed by mail, when dispatched by facsimile or
other written telecommunication, addressed to such party hereto at its address
or facsimile number set forth below the signature of such party at the foot of
this Agreement.
SECTION 6. EXPENSES. (a) The Company agrees to pay to the Subordination
Agent when due an amount or amounts equal to the fees payable to the Liquidity
Provider under Section 2.03 of each Liquidity Facility and the related Fee
Letter (as defined in the Intercreditor Agreement) multiplied by a fraction the
numerator of which shall be the then outstanding aggregate amount of the
Deposits under the Deposit Agreements and the denominator of which shall be the
sum of (x) the then outstanding aggregate principal amount of the Series A-1
Equipment Notes, Series A-2 Equipment Notes, Series B Equipment Notes, Series
C-1 Equipment Notes and Series C-2 Equipment Notes issued under all of the
Indentures and (y) the then outstanding aggregate amount of the Deposits under
the Deposit Agreements.
(b) So long as no Equipment Notes have been issued in respect of any
Aircraft, the Company agrees to pay (i) to the Subordination Agent when due (A)
the amount equal to interest on any Downgrade Advance (other than any Applied
Downgrade Advance) payable under Section 3.07 of each Liquidity Facility minus
Investment Earnings while such Downgrade Advance shall be outstanding, (B) the
amount equal to interest on any Non-Extension Advance (other than any Applied
Non-Extension Advance) payable under Section 3.07 of each Liquidity Facility
minus Investment Earnings while such Non-Extension Advance shall be outstanding
and (C) any other amounts owed to the Liquidity Provider by the Subordination
Agent as borrower under each Liquidity Facility (other than amounts due as
repayment of advances thereunder or as interest on such advances, except to the
extent payable pursuant to clause (A) or (B)), (ii) all compensation and
reimbursement of expenses, disbursements and advances payable by the Company
under the Pass Through Trust Agreements, (iii) all compensation and
reimbursement of expenses and disbursements payable to the Subordination Agent
under the Intercreditor Agreement except with respect to any income or franchise
taxes incurred by the Subordination Agent in connection with the transactions
contemplated by the Intercreditor Agreement and (iv) in the event the Company
requests any amendment to any Operative Agreement, all reasonable fees and
expenses (including, without limitation, fees and disbursements of counsel) of
the Escrow Agent and/or the Paying Agent in connection therewith. For purposes
of this Section 6(b), the terms "Applied Downgrade Advance", "Applied
Non-Extension Advance", "Downgrade Advance", "Investment Earnings" and
"Non-Extension Advance" shall have the meanings specified in each Liquidity
Facility.
SECTION 7. FURTHER ASSURANCES. Each party hereto shall duly execute,
acknowledge and deliver, or shall cause to be executed, acknowledged and
delivered, all such further agreements, instruments, certificates or documents,
and shall do and cause to be done such further acts and things, in any case, as
any other party hereto shall reasonably request in connection with its
administration of, or to carry out more effectually the purposes of, or to
better assure and confirm unto it the rights and benefits to be provided under,
this Agreement.
SECTION 8. MISCELLANEOUS. (a) Provided that the transactions
contemplated hereby have been consummated, and except as otherwise provided for
herein, the representations, warranties and agreements herein of the Company,
the Subordination Agent, the Escrow Agent, the Paying Agent and the Pass Through
Trustee, and the Company's, the Subordination Agent's, the Escrow Agent's, the
Paying Agent's and the Pass Through Trustee's obligations under any and all
thereof, shall survive the expiration or other termination of this Agreement and
the other agreements referred to herein.
(b) This Agreement may be executed in any number of counterparts (and
each of the parties hereto shall not be required to execute the same
counterpart). Each counterpart of this Agreement, including a signature page
executed by each of the parties hereto, shall be an original counterpart of this
Agreement, but all of such counterparts together shall constitute one
instrument. Neither this Agreement nor any of the terms hereof may be
terminated, amended, supplemented, waived or modified orally, but only by an
instrument in writing signed by the party against which the enforcement of the
termination, amendment, supplement, waiver or modification is sought. The index
preceding this Agreement and the headings of the various Sections of this
Agreement are for convenience of reference only and shall not modify, define,
expand or limit any of the terms or provisions hereof. The terms of this
Agreement shall be binding upon, and shall inure to the benefit of, the Company
and its successors and permitted assigns, the Pass Through Trustee and its
successors as Pass Through Trustee (and any additional trustee appointed) under
any of the Pass Through Trust Agreements, the Escrow Agent and its successors as
Escrow Agent under the Escrow and Paying Agent Agreements, the Paying Agent and
its successors as Paying Agent under the Escrow and Paying Agent Agreement and
the Subordination Agent and its successors as Subordination Agent under the
Intercreditor Agreement.
(c) This Agreement is not intended to, and shall not, provide any
person not a party hereto (other than the Underwriters and each of the
beneficiaries of Section 6 hereof) with any rights of any nature whatsoever
against any of the parties hereto, and no person not a party hereto (other than
the Underwriters and each of the beneficiaries of Section 6 hereof) shall have
any right, power or privilege in respect of, or have any benefit or interest
arising out of, this Agreement.
SECTION 9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THIS AGREEMENT
IS BEING DELIVERED IN THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
CONTINENTAL AIRLINES, INC.
By___________________________________
Name:
Title:
Address: 0000 Xxxxx Xxxxxx
Xxxx. XXX-XX
Xxxxxxx, XX 00000
Attention: Vice President-
Corporate Finance
Facsimile: (000) 000-0000
WILMINGTON TRUST COMPANY,
not in its individual capacity, except
as otherwise provided herein, but solely
as Pass Through Trustee
By___________________________________
Name:
Title:
Address: Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust
Administration
Facsimile: (000) 000-0000
WILMINGTON TRUST COMPANY,
not in its individual capacity, except
as otherwise provided herein, but solely
as Subordination Agent
By___________________________________
Name:
Title:
Address: Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust
Administration
Facsimile: (000) 000-0000
FIRST SECURITY BANK, NATIONAL
ASSOCIATION,
as Escrow Agent
By___________________________________
Name:
Title:
Address: 00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Corporate Trust
Department, 3rd Floor
Facsimile: (000) 000-0000
WILMINGTON TRUST COMPANY,
as Paying Agent
By___________________________________
Name:
Title:
Address: Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust
Administration
Facsimile: (000) 000-0000
SCHEDULE I to
NOTE PURCHASE AGREEMENT
-----------------------
NEW AIRCRAFT AND SCHEDULED DELIVERY MONTHS
Expected Registration Manufacturer's Serial Scheduled Delivery
New Aircraft Type Number Number Months
---------------------- --------------------- -------------------- ------------------
Boeing 737-724 N29717 28936 January 1999
Boeing 737-724 N13718 28937 January 1999
Boeing 737-724 N17719 28938 February 1999
Boeing 737-724 N13720 28939 March 1999
Boeing 737-724 N23721 28940 March 1999
Boeing 737-724 N27722 28789 April 1999
Boeing 737-724 N21723 28790 April 1999
Boeing 737-824 N13227 28788 April 1999
Boeing 757-224 N17133 29282 December 1998
Boeing 757-224 N67134 29283 January 1999
Boeing 757-224 N41135 29284 February 1999
Boeing 757-224 N19136 29285 March 1999
Boeing 777-224 N77006 29476 December 1998
Boeing 777-224 N74007 29477 February 1999
SCHEDULE II to
NOTE PURCHASE AGREEMENT
-----------------------
TRUST SUPPLEMENTS
Trust Supplement dated as of the Issuance Date between the Company and the Pass
Through Trustee in respect of Continental Airlines Pass Through Trust, Series
1998-3A-1-O.
Trust Supplement dated as of the Issuance Date between the Company and the Pass
Through Trustee in respect of Continental Airlines Pass Through Trust, Series
1998-3A-2-O.
Trust Supplement dated as of the Issuance Date between the Company and the Pass
Through Trustee in respect of Continental Airlines Pass Through Trust, Series
1998-3B-O.
Trust Supplement dated as of the Issuance Date between the Company and the Pass
Through Trustee in respect of Continental Airlines Pass Through Trust, Series
1998-3C-1-O.
Trust Supplement dated as of the Issuance Date between the Company and the Pass
Through Trustee in respect of Continental Airlines Pass Through Trust, Series
1998-3C-2-O.
SCHEDULE III to
NOTE PURCHASE AGREEMENT
-----------------------
DEPOSIT AGREEMENTS
Deposit Agreement (Class A-1) dated as of the Issuance Date between the
Depositary and the Escrow Agent.
Deposit Agreement (Class A-2) dated as of the Issuance Date between the
Depositary and the Escrow Agent.
Deposit Agreement (Class B) dated as of the Issuance Date between the Depositary
and the Escrow Agent.
Deposit Agreement (Class C-1) dated as of the Issuance Date between the
Depositary and the Escrow Agent.
Deposit Agreement (Class C-2) dated as of the Issuance Date between the
Depositary and the Escrow Agent.
SCHEDULE IV to
NOTE PURCHASE AGREEMENT
-----------------------
ESCROW AND PAYING AGENT AGREEMENTS
Escrow and Paying Agent Agreement (Class A-1) dated as of the Issuance Date
among the Escrow Agent, the Underwriters, the Pass Through Trustee and the
Paying Agent.
Escrow and Paying Agent Agreement (Class A-2) dated as of the Issuance Date
among the Escrow Agent, the Underwriters, the Pass Through Trustee and the
Paying Agent.
Escrow and Paying Agent Agreement (Class B) dated as of the Issuance Date among
the Escrow Agent, the Underwriters, the Pass Through Trustee and the Paying
Agent.
Escrow and Paying Agent Agreement (Class C-1) dated as of the Issuance Date
among the Escrow Agent, the Underwriters, the Pass Through Trustee and the
Paying Agent.
Escrow and Paying Agent Agreement (Class C-2) dated as of the Issuance Date
among the Escrow Agent, the Underwriters, the Pass Through Trustee and the
Paying Agent.
SCHEDULE V to
NOTE PURCHASE AGREEMENT
-----------------------
MANDATORY DOCUMENT TERMS
The terms "Trust Indenture Form," "Lease Form" and "Participation Agreement
Form" shall have the respective meanings specified in Schedule VI to the Note
Purchase Agreement.
1. May not modify in any material adverse respect the Granting Clause
of the Trust Indenture Form so as to deprive the Note Holders of a first
priority security interest in and mortgage lien on the Aircraft and the Lease or
to eliminate any of the obligations secured thereby or otherwise modify in any
material adverse respect as regards the interests of the Note Holders, the
Subordination Agent, the Liquidity Provider or the Mortgagee the provisions of
Article II or III or Section 4.02, 4.03, 4.04, 5.02, 5.06, 9.01(b), 10.04, 10.11
or 10.12 of the Trust Indenture Form.
2. May not modify in any material adverse respect as regards the
interests of the Note Holders, the Subordination Agent, the Liquidity Provider
or the Mortgagee the provisions of Section 3.2.1(e), 3.3(c), 4.7, the final
sentence of 7.1.1, 10.3.1(d)(ii), 13.3, 16, 18.3 or 18.7(a) of the Lease Form or
otherwise modify the terms of the Lease Form so as to deprive the Mortgagee of
rights expressly granted to the "Mortgagee" therein.
3. May not modify in any material adverse respect as regards the
interests of the Note Holders, the Subordination Agent, the Liquidity Provider
or the Mortgagee the provisions of Section 5.1.9, 5.1.10, 5.1.11, 5.1.12, 7.5,
12, 15.8(a) or 15.9 of the Participation Agreement Form or of the provisions of
Section 5.1.2(xxiii) or 10.1.1(a)(iv) of the Participation Agreement Form so as
to eliminate the requirement to deliver to the Loan Participant or the
Mortgagee, as the case may be, the legal opinions to be provided to such Persons
thereunder (recognizing that the lawyers rendering such opinions may be changed)
or of the provisions of Section 7.6.11(a)(ii) of the Participation Agreement
Form as regards the rights of the Mortgagee thereunder or otherwise modify the
terms of the Participation Agreement Form to deprive the Trustees, the
Subordination Agent, the Liquidity Provider or the Mortgagee of any indemnity or
right of reimbursement in its favor for Expenses or Taxes.
4. May not modify, in any material adverse respect as regards the
interests of the Note Holders, the Subordination Agent, the Liquidity Provider
or the Mortgagee, the definition of "Make Whole Amount" in Annex A to the
Participation Agreement Form.
Notwithstanding the foregoing, any such Mandatory Document Term may be modified
to correct or supplement any such provision which may be defective or to cure
any ambiguity or correct any mistake, PROVIDED that any such action shall not
materially adversely affect the interests of the Note Holders, the Subordination
Agent, the Liquidity Provider, the Mortgagee or the Certificateholders.
SCHEDULE VI to
NOTE PURCHASE AGREEMENT
-----------------------
MANDATORY ECONOMIC TERMS
EQUIPMENT NOTES
---------------
Obligor: Continental or an Owner Trust
Maximum Principal Amount:
The maximum principal amount of all the Equipment Notes issued with respect
to an Aircraft shall not exceed the maximum principal amount of Equipment
Notes indicated for each such Aircraft as set forth in the Prospectus
Supplement in "Prospectus Supplement Summary--Equipment Notes and the
Aircraft" under the column "Maximum Principal Amount of Equipment Notes".
The original aggregate principal amount of all Equipment Notes (other than
Series D Equipment Notes, if any) for all Aircraft shall not exceed the
aggregate face amount of all Certificates issued on the Issuance Date. The
original aggregate principal amount of all Equipment Notes of any series (other
than Series D Equipment Notes, if any) shall not exceed the original aggregate
face amount of all Certificates of the related Class issued on the Issuance
Date.
Initial Loan to Aircraft Value with respect to an Aircraft (with (i) the
principal amount of the series of Equipment Notes that rank equally or senior
aggregated for purposes of the calculation and (ii) the value of any Aircraft
for these purposes equal to the value ("the ASSUMED APPRAISED VALUE") for such
Aircraft set forth in the Prospectus Supplement in "Prospectus Supplement
Summary--Equipment Notes and the Aircraft" under the column "Appraised Value")
shall not exceed the percentages set forth in the following table:
SERIES A-1 SERIES A-2 SERIES B SERIES C-1 SERIES C-2
---------- ---------- -------- ---------- ----------
EQUIPMENT EQUIPMENT EQUIPMENT EQUIPMENT EQUIPMENT
--------- --------- --------- --------- ---------
AIRCRAFT TYPE NOTES NOTES NOTES NOTES NOTES
------------- ----- ----- ----- ----- -----
Boeing 737-724.......... 44.7% 44.7% 53.7% 66.6% 66.6%
Boeing 737-824.......... 44.2% 44.2% 53.1% 65.8% 65.8%
Boeing 757-224.......... 45.0% 45.0% 54.0% 67.0% 67.0%
Boeing 777-224.......... 44.7% 44.7% 53.6% 66.5% 66.5%
The Loan to Aircraft Value for each series of Equipment Notes issued in respect
of each Aircraft (computed (i) after aggregating the principal amount of the
series of Equipment Notes that rank equally or senior and (ii) as of the date of
the issuance thereof on the basis of the Assumed Appraised Value of such
Aircraft and the Depreciation Assumption (as defined in the Prospectus
Supplement in "Description of the Equipment Notes--Loan to Value Ratios of
Equipment Notes")) will not exceed as of any Regular Distribution Date
thereafter (assuming no default in the payment of the Equipment Notes) the
Initial Loan to Aircraft Value for such series of Equipment Notes set forth in
the preceding paragraph.
Initial Average Life (in years) from the Issuance Date for any Aircraft:
Series A-1: not more than 13.5 years
Series B: not more than 12.5 years
Series C-1: not more than 5.5 years
AVERAGE LIFE (IN YEARS)
-----------------------
As of the Delivery Period Termination Date, the average life of the Class
A-1 Certificates, the Class B Certificates and the Class C-1 Certificates
shall not be more than, respectively, 12.0 years, 10.0 years, and 4.0 years
from the Issuance Date (computed without regard to the acceleration of any
Equipment Notes and after giving effect to any special distribution on the
Certificates thereafter required in respect of unused Deposits).
FINAL MATURITY DATE
-------------------
There shall be a payment of principal scheduled on at least one Series A-1
Equipment Note on May 1, 2018, and no Series A-1 Equipment Note shall
mature after such date.
Series A-2: November 1, 2008, with no scheduled amortization
There shall be a payment of principal scheduled on at least one Series B
Equipment Note on May 1, 2017, and no Series B Equipment Note shall mature
after such date.
There shall be a payment of principal scheduled on at least one Series C-1
Equipment Note on November 1, 2004, and no Series C-1 Equipment Note shall
mature after such date.
Series C-2: November 1, 2005, with no scheduled amortization
As of the Delivery Period Termination Date (assuming Equipment Notes are
acquired by the Pass Through Trusts for all of the Aircraft), (a) the aggregate
principal amount of the Series A-2 Equipment Notes shall equal the original face
amount of the Class A-2 Certificates and (b) the aggregate principal amount of
the Series C-2 Equipment Notes shall equal the original face amount of the Class
C-2 Certificates.
Debt Rate (computed on the basis of a 360-day year consisting of twelve 30-day
months, payable semi-annually in arrears)
Series A-1: 6.82%
Series A-2: 6.32%
Series B: 7.02%
Series C-1: 7.08%
Series C-2: 7.25%
Payment Due Rate: Debt Rate plus 2% per annum
Payment Dates: May 1 and November 1
Make-Whole Premiums: As provided in Article II of the form of Trust
Indenture marked as Exhibit A-3 or A-6 (whichever
shall be utilized for a Leased Aircraft) of the
Note Purchase Agreement (the "TRUST INDENTURE
FORM") or the Owned Aircraft Indenture marked as
Exhibit C-2 of the Note Purchase Agreement
Redemption and Purchase: As provided in Article II of the Trust Indenture
Form
LEASE
-----
Term: The Base Lease Term shall expire by its terms on
or after final maturity date of the latest
maturity date of the related Equipment Notes
Lease Payment Dates: May 1 and November 1
Minimum Rent: Basic Rent due and payable on each Payment Date
shall be at least sufficient to pay in full, as of
such Payment Date (assuming timely payment of the
related Equipment Notes prior to such Date), the
aggregate principal amount of scheduled
installments due on the related Equipment Notes
outstanding on such Payment Date, together with
accrued and unpaid interest thereon.
Supplemental Rent: Sufficient to cover the sums described in clauses
(a) through (d) of such term as defined in Annex A
to the form of Lease (the "LEASE FORM") marked as
Exhibit A-2 of the Note Purchase Agreement
Stipulated Loss Value: At all times equal to or greater than the then
outstanding principal amount of the related
Equipment Notes together with accrued interest
thereon
Termination Value: At all times equal to or greater than the then
outstanding principal amount of the related
Equipment Notes together with accrued interest
thereon
All-risk hull insurance: Not less than Stipulated Loss Value, subject to
Lessee's right to self-insure on terms no more
favorable to Lessee in any material respect than
those set forth in Section G of Annex D to the
Lease Form.
Minimum Liability As set forth in Schedule 1 to the
Insurance Amount: Lease Form.
Payment Due Rate: As set forth in Schedule 1 to the Lease Form.
SLV Rate: As set forth in Schedule 1 Lease Form.
PARTICIPATION AGREEMENT
-----------------------
Mortgagee, Subordination Agent, Liquidity Providers, Guarantor, Pass
Through Trustees, Escrow Agents and Note Holders indemnified against Expenses
and Taxes to the extent set forth in Section 9 of the form of the Participation
Agreement (the "PARTICIPATION FORM") marked as Exhibit A-1 to the Note Purchase
Agreement
------------------------------------------------------------------------------|
| |
| SCHEDULE VII to |
| NOTE PURCHASE AGREEMENT |
------------------------------------------------------------------------------|
AGGREGATE AMORTIZATION SCHEDULE
1998-3A-1 Trust 1998-3B 1998-3C-1 Trust
Scheduled Principal Trust Scheduled Scheduled Principal
Date Payment Principal Payment Payment
----------------- ------------------- ----------------- -------------------
May 1, 1999 $ 0 $ 0 $ 12,698
November 1, 1999 0 0 0
May 1, 2000 4,040,363 1,886,577 10,845,222
November 1, 2000 0 0 8,601,270
May 1, 2001 4,065,062 722,308 2,417,632
November 1, 2001 0 0 8,335,251
May 1, 2002 5,222,389 395,123 2,522,439
November 1, 2002 0 0 14,605,799
May 1, 2003 6,103,580 739,848 0
November 1, 2003 3,576,838 0 38,748,551
May 1, 2004 2,369,416 0 816,928
November 1, 2004 0 960,104 7,245,210
May 1, 2005 768,988 970,920 0
November 1, 2005 0 4,827,144 0
May 1, 2006 919,350 4,827,144 0
November 1, 2006 0 4,827,144 0
May 1, 2007 7,850,846 5,074,518 0
November 1, 2007 0 4,827,144 0
May 1, 2008 0 4,827,144 0
November 1, 2008 0 4,803,112 0
May 1, 2009 0 7,917 0
November 1, 2009 0 0 0
May 1, 2010 0 3,598,267 0
November 1, 2010 0 0 0
May 1, 2011 1,732,820 6,265,698 0
November 1, 2011 0 0 0
May 1, 2012 5,579,209 3,127,372 0
November 1, 2012 0 0 0
May 1, 2013 8,494,697 0 0
November 1, 2013 2,527,821 0 0
May 1, 2014 8,191,801 0 0
November 1, 2014 5,558,165 0 0
May 1, 2015 10,521,956 0 0
November 1, 2015 428,008 0 0
May 1, 2016 9,787,247 0 0
November 1, 2016 0 0 0
May 1, 2017 2,892,996 6,509,516 0
November 1, 2017 0 0 0
May 1, 2018 5,368,448 0 0
ANNEX A to
NOTE PURCHASE AGREEMENT
-----------------------
DEFINITIONS
"ACT" means 49 U.S.C. xx.xx. 40101-46507.
"AFFILIATE" means, with respect to any person, any other person
directly or indirectly controlling, controlled by or under common control with
such person. For purposes of this definition, "control" means the power,
directly or indirectly, to direct or cause the direction of the management and
policies of such person, whether through the ownership of voting securities or
by contract or otherwise and "controlling," "controlled by" and "under common
control with" have correlative meanings.
"AIRCRAFT PURCHASE AGREEMENT" means, in the case of the Boeing 777-200
Aircraft, the Purchase Agreement No. 2061 dated October 10, 1997, or, in the
case of the Boeing 757-224 Aircraft, the Boeing 737-724 Aircraft and the Boeing
737-824 Aircraft, the Purchase Agreement No. 1951 dated July 23, 1996, as
amended, each between the Company and the Manufacturer (including all exhibits
thereto, together with all letter agreements entered into that by their terms
constitute part of any such Purchase Agreement); and "AIRCRAFT PURCHASE
AGREEMENTS" means all such agreements.
"AIRCRAFT PURCHASE AGREEMENT ASSIGNMENT" means a Purchase Agreement and
Engine Warranties Assignment substantially in the form of Exhibit A-4-I, A-4-II
or A-4-III to the Note Purchase Agreement.
"ASSUMED AMORTIZATION SCHEDULE" means Schedule VII to the Note Purchase
Agreement.
"BANKRUPTCY CODE" means the United States Bankruptcy Code, 11 U.S.C.
xx.xx. 102 ET SEQ.
"BASIC PASS THROUGH TRUST AGREEMENT" means the Pass Through Trust
Agreement, dated September 25, 1997, between the Company and Pass Through
Trustee, as such agreement may be supplemented, amended or modified, but does
not include any Trust Supplement.
"BUSINESS DAY" means any day, other than a Saturday, Sunday or other
day on which commercial banks are authorized or required by law to close in New
York, New York, Houston, Texas, Wilmington, Delaware or Salt Lake City, Utah.
"CERTIFICATE" has the meaning set forth in the third recital to the
Note Purchase Agreement.
"CERTIFICATEHOLDER" means the Person in whose name a Certificate is
registered in the Register.
"CLASS" means the class of Certificates issued by each Pass Through
Trust.
"CLASS D CERTIFICATES" means pass through certificates issued by the
Continental Airlines Pass Through Trust, Series 1998-3D, if any.
"COMPANY" means Continental Airlines, Inc., a Delaware corporation.
"CORPORATE TRUST OFFICE" with respect to any Pass Through Trustee or
any Loan Trustee, means the office of such trustee in the city at which at any
particular time its corporate trust business shall be principally administered.
"CUT-OFF DATE" means the earlier of (a) the day after the Delivery
Period Termination Date and (b) the date on which a Triggering Event occurs.
"DELIVERY PERIOD TERMINATION DATE" means the earlier of (a) July 31,
1999, or, if the Equipment Notes relating to all of the New Aircraft (or
Substitute Aircraft in lieu thereof) have not been purchased by the Pass Through
Trustees on or prior to such date due to any reason beyond the control of the
Company and not occasioned by the Company's fault or negligence, December 31,
1999 (provided that, if a labor strike occurs at the Manufacturer 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 Pass Through
Trustees in accordance with the Note Purchase Agreement.
"DELIVERY DATE" means the Business Day on which a New Aircraft is
delivered to and accepted by the Company.
"DEPOSIT" has the meaning set forth in the fifth recital to the Note
Purchase Agreement.
"DEPOSIT AGREEMENT" has the meaning set forth in the fifth recital to
the Note Purchase Agreement.
"DEPOSITARY" means Credit Suisse First Boston, New York branch, a
banking institution organized under the laws of Switzerland.
"EQUIPMENT NOTES" means and includes any equipment notes issued under
any Indenture in the form specified in Section 2.01 thereof (as such form may be
varied pursuant to the terms of such Indenture) and any Equipment Note issued
under any Indenture in exchange for or replacement of any other Equipment Note.
"ESCROW AGENT" has the meaning set forth in the first paragraph of the
Note Purchase Agreement.
"ESCROW AND PAYING AGENT AGREEMENT" has the meaning set forth in the
fifth recital to the Note Purchase Agreement.
"FAA" means the Federal Aviation Administration of the United States.
"FINAL WITHDRAWAL" with respect to each Escrow and Paying Agent
Agreement, has the meaning set forth in Section 1.02 thereof.
"FINANCING AGREEMENTS" means, collectively, the Lease Financing
Agreements and the Owner Financing Agreements.
"GOVERNMENT ENTITY" means (a) any federal, state, provincial or similar
government, and any body, board, department, commission, court, tribunal,
authority, agency or other instrumentality of any such government or otherwise
exercising any executive, legislative, judicial, administrative or regulatory
functions of such government or (b) any other government entity having
jurisdiction over any matter contemplated by the Operative Agreements or
relating to the observance or performance of the obligations of any of the
parties to the Operative Agreements.
"GUARANTEE AGREEMENT" has the meaning set forth in the Intercreditor
Agreement.
"GUARANTOR" has the meaning set forth in the Intercreditor Agreement.
"INDENTURES" means, collectively, the Leased Aircraft Indentures, the
Special Indentures and the Owned Aircraft Indentures.
"INTERCREDITOR AGREEMENT" has the meaning set forth in the ninth
recital to the Note Purchase Agreement.
"ISSUANCE DATE" means the date of the original issuance of the
Certificates.
"LAW" means (a) any constitution, treaty, statute, law, decree,
regulation, order, rule or directive of any Government Entity, and (b) any
judicial or administrative interpretation or application of, or decision under,
any of the foregoing.
"LEASE" means a Lease Agreement substantially in the form of Exhibit
A-2 to the Note Purchase Agreement.
"LEASE FINANCING AGREEMENTS" means, collectively, the Aircraft Purchase
Agreement Assignment, the Leased Aircraft Participation Agreement, the Lease,
the Leased Aircraft Indenture (or, in a case where The Boeing Company or any of
its Affiliates is the Owner Participant and if so specified in the Delivery
Notice, the Special Indenture), the Equipment Notes issued thereunder and the
Trust Agreement relating to the financing of a Leased Aircraft.
"LEASED AIRCRAFT" means a New Aircraft subject to a Lease.
"LEASED AIRCRAFT INDENTURE" means a Trust Indenture and Mortgage
substantially in the form of Exhibit A-3 to the Note Purchase Agreement.
"LEASED AIRCRAFT PARTICIPATION AGREEMENT" means a Participation
Agreement substantially in the form of Exhibit A-1 to the Note Purchase
Agreement.
"LIQUIDITY FACILITY" has the meaning set forth in the ninth recital to
the Note Purchase Agreement.
"LIQUIDITY PROVIDER" has the meaning set forth in the ninth recital to
the Note Purchase Agreement.
"LOAN TRUSTEE" means the "Mortgagee" as defined in the Financing
Agreements.
"MANDATORY DOCUMENT TERMS" means the terms set forth on Schedule V to
the Note Purchase Agreement.
"MANDATORY ECONOMIC TERMS" means the terms set forth on Schedule VI to
the Note Purchase Agreement.
"MANUFACTURER" means The Boeing Company, a Delaware corporation, solely
in its capacity as manufacturer or seller of New Aircraft.
"NEW AIRCRAFT" has the meaning set forth in the second recital to the
Note Purchase Agreement.
"NOTE PURCHASE AGREEMENT" means the Note Purchase Agreement to which
this Annex A is attached.
"NOTICE OF PURCHASE WITHDRAWAL" with respect to each Deposit Agreement,
has the meaning set forth in Section 2.3 thereof.
"OPERATIVE AGREEMENTS" means, collectively, the Pass Through Trust
Agreements, the Escrow and Paying Agent Agreements, the Deposit Agreements, the
Liquidity Facilities, the Guarantee Agreements, the Intercreditor Agreement, the
Trust Agreements, the Equipment Notes, the Certificates and the Financing
Agreements.
"OWNED AIRCRAFT" means a New Aircraft subject to an Owned Aircraft
Indenture.
"OWNED AIRCRAFT INDENTURE" means a Trust Indenture and Mortgage
substantially in the form of Exhibit C-2 to the Note Purchase Agreement.
"OWNED AIRCRAFT PARTICIPATION AGREEMENT" means a Participation
Agreement substantially in the form of Exhibit C-1 to the Note Purchase
Agreement.
"OWNER FINANCING AGREEMENTS" means, collectively, the Owned Aircraft
Participation Agreement, the Owned Aircraft Indenture and the Equipment Notes
issued thereunder.
"OWNER PARTICIPANT" means, with respect to any Leased Aircraft, the
Person named as the Owner Participant in the Participation Agreement with
respect to such Leased Aircraft.
"OWNER TRUST" means with respect to any Leased Aircraft, the trust
created by the "Trust Agreement" referred to in the Leased Aircraft Indenture or
Special Indenture related thereto.
"OWNER TRUSTEE" means with respect to any Leased Aircraft, the "Owner
Trustee" party to the "Trust Agreement" referred to in the Leased Aircraft
Indenture or Special Indenture related thereto.
"PARTICIPATION AGREEMENTS" means, collectively, the Leased Aircraft
Participation Agreements and the Owned Aircraft Participation Agreements.
"PASS THROUGH TRUST" has the meaning set forth in the third recital to
the Note Purchase Agreement.
"PASS THROUGH TRUST AGREEMENT" means each of the five separate Trust
Supplements, together in each case with the Basic Pass Through Trust Agreement,
each dated as of the Issuance Date, by and between the Lessee and Pass Through
Trustee.
"PASS THROUGH TRUSTEE" has the meaning set forth in the first paragraph
of the Note Purchase Agreement.
"PAYING AGENT" has the meaning set forth in the first paragraph of the
Note Purchase Agreement.
"PERSON" means any individual, firm, partnership, joint venture, trust,
trustee, Government Entity, organization, association, corporation, government
agency, committee, department, authority and other body, corporate or
incorporate, whether having distinct legal status or not, or any member of any
of the same.
"QUALIFIED OWNER PARTICIPANT" means any bank, trust company, insurance
company, financial institution or corporation (other than, without the Company's
consent, a commercial air carrier, a commercial aircraft operator, a freight
forwarder or Affiliate of any of the foregoing), in each case with a combined
capital and surplus or net worth of at least $50,000,000.
"RATING AGENCIES" means, collectively, at any time, each nationally
recognized rating agency which shall have been requested to rate the
Certificates and which shall then be rating the Certificates. The initial Rating
Agencies will be Xxxxx'x Investors Service, Inc. and Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc.
"RATING AGENCY CONFIRMATION" means, with respect to any Financing
Agreement that has been modified in any material respect from the forms thereof
attached to the Note Purchase Agreement or with respect to Substitute Aircraft,
a written confirmation from each of the Rating Agencies that the use of such
Financing Agreement with such modifications or the substituting of such
Substitute Aircraft for a New Aircraft, whichever of the foregoing shall in a
particular case require Rating Agency Confirmation, would not result in (i) a
reduction of the rating for any Class of Certificates below the then current
rating for such Class of Certificates or (ii) a withdrawal or suspension of the
rating of any Class of Certificates.
"REGISTER" means the register maintained pursuant to Sections 3.04 and
7.12 of the Basic Pass Through Trust Agreement with respect to each Pass Through
Trust.
"REGULAR DISTRIBUTION DATES" shall mean May 1 and November 1 of each
year, commencing May 1, 1999.
"SECTION 1110" means 11 U.S.C. ss. 1110 of the Bankruptcy Code or any
successor or analogous Section of the federal bankruptcy Law in effect from time
to time.
"SERIES A-1 EQUIPMENT NOTES" means Equipment Notes issued under an
Indenture and designated as "Series A-1" thereunder.
"SERIES A-2 EQUIPMENT NOTES" means Equipment Notes issued under an
Indenture and designated as "Series A-2" thereunder.
"SERIES B EQUIPMENT NOTES" means Equipment Notes issued under an
Indenture and designated as "Series B" thereunder.
"SERIES C-1 EQUIPMENT NOTES" means Equipment Notes issued under an
Indenture and designated as "Series C-1" thereunder.
"SERIES C-2 EQUIPMENT NOTES" means Equipment Notes issued under an
Indenture and designated as "Series C-2" thereunder.
"SERIES D EQUIPMENT NOTES" means Equipment Notes issued under an
Indenture and designated as "Series D" thereunder, if any.
"SPECIAL INDENTURE" means a Trust Indenture and Mortgage substantially
in the form of Exhibit A-6 to the Note Purchase Agreement.
"SUBORDINATION AGENT" has the meaning set forth in the first paragraph
of the Note Purchase Agreement.
"SUBSTITUTE AIRCRAFT" has the meaning set forth in Section 1(g) of the
Note Purchase Agreement.
"TAXES" means all license, recording, documentary, registration and
other similar fees and all taxes, levies, imposts, duties, charges, assessments
or withholdings of any nature whatsoever imposed by any Taxing Authority,
together with any penalties, additions to tax, fines or interest thereon or
additions thereto.
"TAXING AUTHORITY" means any federal, state or local government or
other taxing authority in the United States, any foreign government or any
political subdivision or taxing authority thereof, any international taxing
authority or any territory or possession of the United States or any taxing
authority thereof.
"TRIGGERING EVENT" has the meaning assigned to such term in the
Intercreditor Agreement.
"TRUST AGREEMENT" means a Trust Agreement substantially in the form of
Exhibit E to the Note Purchase Agreement.
"TRUST SUPPLEMENT" means an agreement supplemental to the Basic Pass
Through Trust Agreement pursuant to which (i) a separate trust is created for
the benefit of the holders of the Pass Through Certificates of a class, (ii) the
issuance of the Pass Through Certificates of such class representing fractional
undivided interests in such trust is authorized and (iii) the terms of the Pass
Through Certificates of such class are established.
"UNDERWRITERS" has the meaning set forth in the fourth recital to the
Note Purchase Agreement.
"WTC" has the meaning set forth in the first paragraph of the Note
Purchase Agreement.
EXHIBIT A-1 to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF LEASED AIRCRAFT PARTICIPATION AGREEMENT
[FILED SEPARATELY]
EXHIBIT A-2 to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF LEASE
[FILED SEPARATELY]
EXHIBIT A-3 to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF LEASED AIRCRAFT INDENTURE
[FILED SEPARATELY]
EXHIBIT A-4-I to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF AIRCRAFT PURCHASE AGREEMENT ASSIGNMENT - ROLLS
--------------------------------------------------------------------------
| CONFIDENTIAL: SUBJECT TO RESTRICTIONS ON DISSEMINATION |
| SET FORTH IN SECTION 8 OF THE PARTICIPATION AGREEMENT (AS DEFINED HEREIN)|
--------------------------------------------------------------------------
PURCHASE AGREEMENT AND ENGINE WARRANTIES ASSIGNMENT ___
PURCHASE AGREEMENT AND ENGINE WARRANTIES ASSIGNMENT ___, dated as of
____________, between Continental Airlines, Inc., a Delaware corporation
("Assignor"), and First Security Bank, National Association, a national banking
association, not in its individual capacity but solely as Owner Trustee
("Assignee") under Trust Agreement ___ dated as of ____________ (the "Trust
Agreement"), between the Owner Participant named therein and Assignee, in its
individual capacity, and otherwise not in its individual capacity but solely as
trustee thereunder.
Assignor and Manufacturer (as such term and other capitalized terms are
hereinafter defined) are parties to the Purchase Agreement, providing, among
other things, for the manufacture and sale by Manufacturer or Manufacturer's
wholly owned subsidiary to Assignor of certain aircraft, engines and related
equipment, including the Aircraft. Assignor and Engine Manufacturer are parties
to the General Terms Agreement, containing, among other terms and conditions,
the Engine Warranties.
Assignee wishes to acquire the Aircraft from Assignor and Assignor, on
the terms and conditions hereinafter set forth, is willing to assign to Assignee
certain of Assignor's rights and interests under the Purchase Agreement and the
General Terms Agreement and Assignee is willing to accept such assignment, as
hereinafter set forth.
AGREEMENTS
----------
The parties hereto agree as follows:
Section 1. DEFINITIONS. For all purposes of this Assignment, except as
otherwise expressly provided or unless the context otherwise requires, the
following terms shall have the following meanings:
AIRCRAFT - The Boeing Model 757-224 aircraft bearing Manufacturer's
Serial No. _________ and U.S. Registration No. ________, to be financed pursuant
to the Participation Agreement, including the Engines.
ENGINES - Two Rolls-Royce Model RB211-535E4-B-37 series engines bearing
manufacturer's serial numbers ________ and ________, respectively, installed on
the Aircraft.
ENGINE MANUFACTURER - Rolls-Royce plc, a corporation organized under
the laws of England, and its successors and assigns.
ENGINE WARRANTIES - Engine Manufacturer's "Engine and Parts Warranty"
reference CE28, "Nacelle Warranty" reference CE49A and "Non-Installation Items
Warranty" reference CE7/Audit 1, as set forth in Exhibit C which forms a part of
the General Terms Agreement, and as limited by the applicable terms of the
General Terms Agreement and such Exhibit C.
GENERAL TERMS AGREEMENT - The Purchase Contract reference
RR/CAL/DEG2124 dated December 7, 1993, by and between Engine Manufacturer and
Assignor, including Exhibit C - "Warranties" thereto, insofar as such Exhibit C
relates to the Engine Warranties, but excluding any and all Side Letter
Agreements attached thereto, to the extent that such Purchase Contract and such
Exhibit relate to the Engines, as such Purchase Contract may hereafter be
amended, supplemented and modified to the extent relating to the Engines.
LEASE - The Lease Agreement ___, dated as of ____________, as at any
time amended, supplemented and modified, between Assignee, as lessor, and
Assignor, as lessee, providing for the lease of the Aircraft.
MANUFACTURER - The Boeing Company, a Delaware corporation, and its
successors and assigns.
PARTICIPATION AGREEMENT - The Participation Agreement ___, dated as of
____________, among Assignor, the Participants, Assignee and Mortgagee, as at
any time amended, supplemented and modified.
PURCHASE AGREEMENT - Purchase Agreement No. 1783, dated March 18, 1993,
between Manufacturer and Assignor, providing, among other things, for the
manufacture and sale by Manufacturer to Assignor of certain Boeing Model 757
aircraft (including the Aircraft) and including as part thereof Exhibits A, B,
D, E and F thereto, but excluding all other exhibits and letter and supplemental
agreements, to the extent that such Purchase Agreement and such Exhibits relate
to the Aircraft, as such Purchase Agreement may hereafter be amended,
supplemented and modified to the extent permitted by the terms of this
Assignment.
Capitalized terms used but not defined herein shall have the respective
meanings set forth or incorporated by reference, and shall be construed and
interpreted in the manner described, in the Participation Agreement.
Section 2. ASSIGNMENT. Assignor does hereby sell, assign, transfer and
set over unto Assignee and its successors and permitted assigns all of
Assignor's rights and interests in and to the Purchase Agreement, as and only to
the extent that the same relates to the Aircraft, and in and to the General
Terms Agreement, as and only to the extent that the Engine Warranties contained
therein relate to the Engines, except to the extent reserved below, including
without limitation in such assignment (a) all claims for damages in respect of
the Aircraft and the Engines arising as a result of any default by Manufacturer
under the Purchase Agreement or Engine Manufacturer or any other vendor or
supplier of other parts or equipment installed on or in the Aircraft, including
without limitation all warranty service life policies, aircraft performance
guarantees and indemnity provisions contained in the Purchase Agreement and the
Engine Warranties, and all claims arising thereunder, in respect of the Aircraft
and the Engines, (b) any and all rights of Assignor to compel performance of the
terms of the Purchase Agreement in respect of the Aircraft and the Engine
Warranties in respect of the Engines and (c) the right to purchase and take
title to the Aircraft pursuant to the Purchase Agreement; RESERVING TO ASSIGNOR,
HOWEVER, with respect to the Aircraft and each Engine, (i) all rights to receive
any credits due to Assignor with respect to the purchase price of the Aircraft
pursuant to the Purchase Agreement and of the Engines pursuant to the General
Terms Agreement, (ii) all of Assignor's rights and interests in or arising out
of any payments or deposits made relating to the Aircraft or to be made by
Assignor on amounts credited or to be credited or paid or to be paid by the
Manufacturer to Assignor in respect of the Aircraft, and, (iii) so long and only
so long as, the Aircraft and each Engine shall be subject to the Lease and no
Lease Event of Default shall have occurred and be continuing thereunder, the
rights (A) to demand, accept and retain all rights in and to all property (other
than the Aircraft), data and services that Manufacturer or Engine Manufacturer
is obligated to provide or does provide pursuant to the Purchase Agreement or
the General Terms Agreement, as the case may be, and (B) to obtain services,
training, data and demonstration and test flights pursuant to the Purchase
Agreement or the General Terms Agreement, as the case may be.
Assignee hereby accepts such assignment subject to the terms hereof.
Assignor has furnished a true copy of the Purchase Agreement and a true copy of
the General Terms Agreement to Assignee and has specifically directed Assignee's
attention to Paragraph 10 of Part A, Paragraph 5 of Part C, Paragraph 3 of Part
D, Paragraph 2 of Part D-1, and Paragraph 5 of Part F of Exhibit B to the
Purchase Agreement.
Section 3. EXERCISE OF RIGHTS OF "BUYER" UNDER PURCHASE AGREEMENT AND
OF "CONTINENTAL" UNDER GENERAL TERMS AGREEMENT. Notwithstanding the foregoing,
if and so long as no Lease Event of Default shall have occurred and be
continuing, Assignee authorizes Assignor, to the exclusion of Assignee, during
the Term, to exercise in Assignor's name all rights and powers of the "Buyer" in
respect of the Aircraft under the Purchase Agreement and of "Continental" in
respect of each Engine under the General Terms Agreement, and of Assignee in
respect of a default by any vendor or supplier of parts and equipment (as
specified in clause (b) of Section 2 above) and to retain any recovery or
benefit resulting from the enforcement of any warranty or indemnity under the
Purchase Agreement or the General Terms Agreement in respect of the Aircraft or
each Engine, as the case may be, except that Assignor may not enter into any
change order or other amendment, modification or supplement to the Purchase
Agreement without the written consent or countersignature of Assignee if such
change order, amendment, modification or supplement would (i) result in any
rescission, cancellation or termination of the Purchase Agreement in respect of
the Aircraft or (ii) materially diminish the rights assigned hereunder to
Assignee. Assignee agrees that, as between Assignee and Manufacturer or Engine
Manufacturer, as the case may be (and without affecting Assignor's duties or
obligations under the Participation Agreement or the Lease), neither
Manufacturer nor Engine Manufacturer, as the case may be, shall be deemed to
have knowledge of any Lease Default, Lease Event of Default, declaration of
default or the discontinuance or remedy thereof or the Aircraft or either Engine
being no longer subject to the Lease or any change in the authority of Assignor
or Assignee, as the case may be, to exercise any of the rights established
hereunder unless and until Manufacturer shall have received written notice
thereof from Assignee or Mortgagee addressed to its Treasurer at X.X. Xxx 0000,
Xxxx Xxxx 00-00, Xxxxxxx, Xxxxxxxxxx 00000-0000, if by mail, or to (425)
237-1706, if by facsimile, or, in the case of Engine Manufacturer, Engine
Manufacturer shall have received written notice thereof from Assignee or
Mortgagee addressed to its Contract Manager __535, 524 and large Fleet Engines
at X.X. Xxx 00, Xxxxx XX00 0XX, Xxxxxxx, if by mail, or to 011-44-332-248514, if
by facsimile. So long as Manufacturer and Engine Manufacturer act in good faith,
Manufacturer and Engine Manufacturer may rely conclusively on any such notice
without inquiring as to the accuracy of, or the entitlement of the party to
give, such notice.
Section 4. CERTAIN AGREEMENTS. It is expressly agreed that, anything
herein contained to the contrary notwithstanding:
(a) Assignor shall at all times remain liable (i) to Manufacturer under
the Purchase Agreement to perform all the duties and obligations of the "Buyer"
thereunder and (ii) to Engine Manufacturer under the General Terms Agreement to
perform all the duties and obligations of the "Continental" thereunder, in each
case to the same extent as if this Assignment had not been executed,
(b) the exercise by Assignee of any of the rights assigned hereunder
shall not release Assignor from any of its duties or obligations to Manufacturer
under the Purchase Agreement or to Engine Manufacturer under the General Terms
Agreement except to the extent that such exercise by Assignee shall constitute
performance of such duties and obligations, and
(c) except as provided in the next sentence, none of Assignee,
Mortgagee or any Participant shall have any obligation or liability under the
Purchase Agreement or the General Terms Agreement by reason of, or arising out
of, this Assignment or be obligated to perform any of the obligations or duties
of Assignor under the Purchase Agreement or the General Terms Agreement or to
make any payment thereunder or to make any inquiry as to the sufficiency of any
payment received by any of them or to present or file any claim or to take any
other action to collect or enforce any claim for any payment assigned hereunder.
Anything contained in this Assignment, the Consent and Agreement or the Engine
Consent and Agreement to the contrary notwithstanding, but without in any way
releasing Assignor from any of its duties or obligations under the Purchase
Agreement, the General Terms Agreement or this Assignment, Assignee and
Mortgagee confirm for the benefit of Manufacturer and Engine Manufacturer,
respectively, that, insofar as the provisions of the Purchase Agreement or the
Engine Warranties relate to the Aircraft or the Engines, as the case may be, in
exercising any rights under the Purchase Agreement or the Engine Warranties, or
in making any claim with respect to the Aircraft or other goods and services
delivered or to be delivered pursuant to the Purchase Agreement or the Engine
Warranties, the terms and conditions of the Purchase Agreement and the Engine
Warranties, including without limitation Exhibit C thereto shall apply to, and
be binding upon, Assignee and Mortgagee to the same extent as Assignor. Each of
Assignee and Mortgagee agree that, in the event it intends to sell, re-lease or
otherwise dispose of one or more of the Engines to any Person, it will use
reasonable efforts to ensure that such Person enters into a direct warranty
agreement with Engine Manufacturer prior to delivery of such Engine or Engines
to such Person.
Section 5. PRESERVATION OF RIGHTS. Nothing contained in this Assignment
shall in any way diminish or limit the provisions of Assignor's indemnity in
Section 9 of the Participation Agreement with respect to any liability of
Assignee to Manufacturer in any way relating to or arising out of the Purchase
Agreement. Nothing contained in this Assignment shall subject Manufacturer or
Engine Manufacturer to any obligation or liability to which it would not
otherwise be subject under the Purchase Agreement or under the General Terms
Agreement, as the case may be, or modify in any respect the contract rights of
Manufacturer or Engine Manufacturer thereunder, except as may be provided in
their respective consents attached hereto, or require Manufacturer to divest
itself of title to or possession of the Aircraft or other goods and services
until delivery thereof and payment therefor as provided in the Purchase
Agreement or subject Manufacturer or Engine Manufacturer to any multiple or
duplicative liability or obligation under the Purchase Agreement or the General
Terms Agreement, as the case may be. No further assignment of the Engine
Warranties, including without limitation assignments for security purposes
(other than under the Trust Indenture), are permitted without the express
written consent of Engine Manufacturer.
Section 6. APPOINTMENT OF ATTORNEY. Effective at any time when a Lease
Event of Default shall have occurred and be continuing, (i) unless Assignee and
Mortgagee (so long as the Lien of the Trust Indenture has not been discharged),
in their sole discretion, shall notify Manufacturer or Engine Manufacturer, as
the case may be, to the contrary, the authorization given to Assignor under
Section 3 hereof to enforce such rights and claims shall henceforth cease to be
effective and Assignee and its successors and permitted assigns shall, to the
exclusion of Assignor, be entitled to assert and enforce such rights and claims
as substitute party plaintiff or otherwise, and Assignor shall, at the request
of Assignee or its successors or permitted assigns and at Assignor's expense,
cooperate with and take such action as is reasonably necessary to enable
Assignee and its successors and permitted assigns to enforce such rights and
claims, and (ii) Assignor does hereby constitute Assignee, its successors and
permitted assigns, Assignor's true and lawful attorney, irrevocably, with full
power (in the name of Assignor or otherwise) to ask, require, demand, receive,
compound and give acquittance for any and all monies and claims for monies due
and to become due under, or arising out of, the Purchase Agreement in respect of
the Aircraft or the Engine Warranties in respect of the Engines, as the case may
be, to the extent that the same have been assigned by this Assignment and, for
such period as Assignee may exercise rights with respect thereto under this
Assignment, to endorse any checks or other instruments or orders in connection
therewith and to file any claims or take any action or institute (or, if
previously commenced, assume control of) any proceeding and to obtain any
recovery in connection therewith which Assignee may deem to be necessary or
advisable in the premises.
Section 7. OTHER ACTION. Assignor agrees that, at Assignor's sole cost
and expense, at any time and from time to time, upon the written request of
Assignee or, so long as the Lien of the Trust Indenture has not been discharged,
Mortgagee, Assignor will promptly and duly execute and deliver any and all such
further instruments and documents and take such further action as Assignee or,
so long as the Lien of the Trust Indenture has not been discharged, Mortgagee,
may reasonably request in order to obtain the full benefits of this Assignment
and of the rights and powers herein granted.
Section 8. ASSIGNOR'S REPRESENTATIONS AND WARRANTIES. Assignor does
hereby represent and warrant that the Purchase Agreement and the General Terms
Agreement are in full force and effect as to Assignor and are enforceable
against Assignor in accordance with their respective terms. Assignor does hereby
further represent and warrant that Assignor has, with the authorized execution
of the Consent and Agreement and the Engine Consent and Agreement, (i) received
all necessary consents to the assignment and transfer contemplated herein
(including without limitation the assignment and transfer contemplated herein of
Assignor's rights under the Purchase Agreement and the General Terms Agreement)
and (ii) assuming that the Consent and Agreement and the Engine Consent and
Agreement are in full force and effect, such consents are in full force and
effect and Assignor further represents and warrants that Assignor has not
assigned (except as assigned hereby) or pledged (except pursuant to (i) Purchase
Contract Security Agreement dated December 7, 1993, between Lessee and Engine
Manufacturer and (ii) the 757 Purchase Agreement Assignment dated February 7,
1994 between Lessee and Manufacturer, the Lien of which will have been released
at or prior to the delivery of this Agreement), and hereby covenants that it
will not during the Term assign (except as assigned hereby) or pledge so long as
this Assignment shall remain in effect, the whole or any part of the rights
hereby assigned or any of its rights with respect to the Aircraft under the
Purchase Agreement or with respect to the Engines under the General Terms
Agreement not assigned hereby to anyone other than Assignee.
Section 9. PAYMENTS. Notwithstanding this Assignment and anything
herein to the contrary, all amounts that Manufacturer or Engine Manufacturer is
obligated to pay to Assignor under the Purchase Agreement with respect to the
Aircraft or under the General Terms Agreement with respect to the Engines,
including, without limitation, resulting from the enforcement of any warranty,
covenant, representation, indemnity or product support agreement thereunder or
the enforcement or exercise of any right or power thereunder or hereunder (in
the case of Manufacturer, a "Manufacturer Payment," and in the case of Engine
Manufacturer, an "Engine Manufacturer Payment") (excluding, however, from
Manufacturer Payments and Engine Manufacturer Payments any amounts Manufacturer
is obligated to pay to Assignor with respect to the rights reserved to Assignor
in Section 2 hereof), will be payable and applicable as follows: all
Manufacturer Payments and Engine Manufacturer Payments shall be paid to Assignor
unless and until Manufacturer or Engine Manufacturer, as the case may be, shall
have received written notice as set forth in Section 3 hereof from Assignee or
Mortgagee that a Lease Event of Default has occurred and is continuing,
whereupon Manufacturer or Engine Manufacturer, as the case may be, will, until
Manufacturer or Engine Manufacturer, as the case may be, shall have received
written notice from Assignee or Mortgagee that all Lease Events of Default have
been cured or waived, make any and all such payments directly to Assignee (or,
so long as the Trust Indenture has not been discharged and Manufacturer or
Engine Manufacturer, as the case may be, shall have received notice thereof, to
Mortgagee). Any amounts received by Assignee pursuant to the immediately
preceding sentence shall, to the extent not theretofore applied in satisfaction
of sums owing to Assignee in accordance with the terms of the Operative
Agreements, be held and invested as provided in Section 4.4 of the Lease.
Section 10. ASSIGNEE'S AGREEMENT. Assignee agrees that, during the
Term, except as otherwise contemplated by Section 2 hereof and unless a Lease
Event of Default shall have occurred and be continuing, it will not enter into
any agreement that would amend, modify, supplement, rescind, cancel or terminate
the Purchase Agreement or the General Terms Agreement in respect of the Aircraft
or the Engines without the prior written consent of Assignor.
Section 11. EXECUTION; COUNTERPARTS, ETC. This Assignment is executed
by Assignor and Assignee concurrently with the execution and delivery of the
Lease. This Assignment may be executed by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original,
and both of which counterparts, taken together, shall constitute one and the
same instrument. The section headings in this Assignment are for convenience of
reference only and shall not modify, define, expand or limit any of the terms or
provisions hereof.
Section 12. CONFIDENTIAL TREATMENT. Assignee agrees that it will not
disclose to any third party the terms of the Purchase Agreement or the General
Terms Agreement except (i) as required by applicable law or governmental
regulation, (ii) in connection with the financing of the Aircraft, (iii) as
permitted under Section 8 of the Participation Agreement as if this Assignment
were specifically referred to therein, (iv) with the consent of Assignor,
Manufacturer and the Engine Manufacturer (as the case may be) or (v) in
connection with any sale or lease of the Aircraft.
Section 13. ASSIGNMENT TO MORTGAGEE. The right, title and interest of
Assignee in and to this Assignment has been assigned to and is subject to a
security interest in favor of Wilmington Trust Company, as Mortgagee under the
Trust Indenture, for the benefit of the Noteholders and the Indenture
Indemnitees referred to in such Trust Indenture, all to the extent provided in
such Trust Indenture. Assignor hereby consents to such assignment and to the
creation of such security interest in and to this Assignment.
SECTION 14. GOVERNING LAW. THIS ASSIGNMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAWS.
[This space intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Purchase
Agreement and Engine Warranties Assignment ___ to be duly executed as of the day
and year first above written.
CONTINENTAL AIRLINES, INC.
By__________________________________
Name:
Title:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Owner Trustee
By__________________________________
Name:
Title:
The undersigned, as Mortgagee for the benefit of the Note Holders and
Indenture Indemnitees and as assignee of, and holder of a security interest in,
the estate, right, title and interest of Assignee in and to the foregoing
Assignment pursuant to the terms of the Trust Indenture agrees to the terms of
the foregoing Assignment and agrees that its rights and remedies under the Trust
Indenture shall be subject to the terms and conditions of the foregoing
Assignment, including Sections 4 and 5 therein, and of the Purchase Agreement
and the General Terms Agreement.
WILMINGTON TRUST COMPANY,
as Mortgagee
By____________________________________
Name:
Title:
MANUFACTURER CONSENT AND AGREEMENT ___
The undersigned, THE BOEING COMPANY, a Delaware corporation, hereby
acknowledges notice of and consents to all of the terms of Purchase Agreement
and Engine Warranties Assignment ___ (herein called the "Assignment") (the
defined terms therein being hereinafter used with the same meanings unless
otherwise defined herein) between Continental Airlines, Inc., as Assignor, and
First Security Bank, National Association, as Owner Trustee, as Assignee, and
hereby confirms to Assignee that: (i) all representations, warranties,
indemnities and agreements of Manufacturer under the Purchase Agreement with
respect to the Aircraft shall inure to the benefit of Assignee to the same
extent as if originally named the "Buyer" therein, except as provided by Section
2 of the Assignment; (ii) Assignee shall not be liable for any of the
obligations or duties of Assignor under the Purchase Agreement, nor shall the
Assignment give rise to any duties or obligations whatsoever on the part of
Assignee owing to Manufacturer, except as provided in Section 4 of the
Assignment; (iii) Manufacturer consents to the grant of a security interest in
the Aircraft pursuant to the Trust Indenture by Assignee and agrees that the
Assignment constitutes an agreement by Assignee as required by Article 10.2 of
the Purchase Agreement; and (iv) Manufacturer will continue to pay to Assignor
or its order all payments that Manufacturer may be required to make in respect
of the Aircraft under the Purchase Agreement unless and until Manufacturer shall
have received written notice from Assignee or Mortgagee addressed to its
Treasurer at X.X. Xxx 0000, Xxxx Xxxx 00-00, Xxxxxxx, Xxxxxxxxxx 00000-0000, if
by mail, or to (000) 000-0000, if by facsimile, that a Lease Event of Default
has occurred and is continuing, whereupon Manufacturer will not be required to
make further inquiry into the content of such notice and will make any and all
payments that it may be required thereafter to make in respect of the Aircraft
under the Purchase Agreement and the right to receive that has been assigned
under the Assignment, directly to Assignee at its address at 00 Xxxxx Xxxx
Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attn: Corporate Trust Department (or, so
long as the Trust Indenture has not been discharged, directly to Mortgagee at
its address at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, Attn: Corporate Trust Administration), unless and until
Manufacturer shall have received notice in writing from Assignee or Mortgagee
that no Lease Event of Default is continuing, whereupon Manufacturer shall make
all payments that Manufacturer may be required to make in respect of the
Aircraft under the Purchase Agreement to Assignor or its order, as aforesaid.
Manufacturer hereby represents and warrants that: (i) Manufacturer is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware; (ii) the making and performance of the Purchase
Agreement and this Manufacturer Consent and Agreement ___ have been duly
authorized by all necessary corporate action on the part of Manufacturer, do not
require any stockholder approval and do not contravene Manufacturer's
Certificate of Incorporation or by-laws or any indenture, credit agreement or
other contractual agreement to which Manufacturer is a party or by which it is
bound and the making of the Purchase Agreement and this Manufacturer Consent and
Agreement ___, the performance of its obligations to sell and deliver the
Aircraft thereunder and the giving of the warranty obligations thereunder, do
not, as to such making, performance or giving, contravene any law binding on
Manufacturer; and (iii) the Purchase Agreement constituted, as of the date
thereof and at all times thereafter to and including the date of this
Manufacturer Consent and Agreement ___, and this Manufacturer Consent and
Agreement ___ constitutes, binding obligations of Manufacturer enforceable
against Manufacturer in accordance with their respective terms subject to (A)
the limitations of applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the rights of creditors generally and (B) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law), which principles do not make the remedies
available at law or in equity with respect to the Purchase Agreement and this
Manufacturer Consent and Agreement ___ inadequate for the practical realization
of the benefits intended to be provided thereby. It is understood that the
execution of this Manufacturer Consent and Agreement ___ by Manufacturer is
subject to the condition that, concurrently with the delivery of the Aircraft to
Assignee, Assignee shall lease the Aircraft to Assignor under the Lease.
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THIS MANUFACTURER CONSENT AND AGREEMENT ___ SHALL IN ALL RESPECTS BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF WASHINGTON, INCLUDING ALL MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT REFERENCE TO CONFLICTS OF
LAWS PRINCIPLES.
Dated as of _______________.
THE BOEING COMPANY
By__________________________________
Name:
Title:
ENGINE MANUFACTURER CONSENT AND AGREEMENT ___
The undersigned, ROLL-ROYCE plc, a corporation organized under the laws
of England whose registered office is at 00 Xxxxxxxxxx Xxxx, Xxxxxx XXXX 0XX,
England, hereby acknowledges notice of and consents to all of the terms of
Purchase Agreement and Engine Warranties Assignment ___ (herein called the
"Assignment") (the defined terms therein being hereinafter used with the same
meanings unless otherwise defined herein) between Continental Airlines, Inc., as
Assignor, and First Security Bank, National Association, as Owner Trustee, as
Assignee. Under the General Terms Agreement, Engine Manufacturer has agreed to
support certain Rolls-Royce Model RB211-535E4-B-37 engines and spare parts
therefor purchased by Assignor from Engine Manufacturer, as installed on certain
Boeing Model 757 aircraft. Engine Manufacturer hereby confirms to Assignor and
Assignee that the Engine Warranties, as and to the extent that such relate to
the Engines, shall inure to the benefit of Assignee (and, so long as the Trust
Indenture has not been discharged, Mortgagee) to the same extent as if
originally named "Continental" in the General Terms Agreement and to the benefit
of Assignor (but only to the extent provided for in the Assignment) in each case
subject to the terms and conditions of the Assignment; PROVIDED, that Engine
Manufacturer shall not owe any liability or obligation under the Engine
Warranties more than once in total.
Engine Manufacturer represents and warrants that:
1. It is a corporation duly organized and validly existing in good
standing under the laws of England;
2. The making and performance of this Engine Manufacturer Consent and
Agreement ___ in accordance with its terms have been duly authorized by all
necessary corporate action on the part of Engine Manufacturer, do not require
any stockholder approval and do not contravene its Articles of Association or
by-laws or any debenture, credit agreement or other contractual agreement to
which Engine Manufacturer is a party or by which it is bound or any law binding
on Engine Manufacturer;
3. The making and performance of the Engine Warranties in accordance
with their terms have been duly authorized by all necessary corporate action on
the part of Engine Manufacturer, do not require any stockholder approval and do
not contravene Engine Manufacturer's Articles of Association or by-laws or any
debenture, credit agreement or other contractual agreement to which Engine
Manufacturer is a party or by which it is bound, and do not, as to the making
thereof, contravene any law binding on Engine Manufacturer, and to the best of
its knowledge, do not as to the performance thereof contravene any law binding
on Engine Manufacturer; and
4. The Engine Warranties constituted as of the date on which they were
made and at all times thereafter to and including the date of this Engine
Manufacturer Consent and Agreement ___, and this Engine Manufacturer Consent and
Agreement ___ constitute binding obligations of Engine Manufacturer enforceable
against Engine Manufacturer in accordance with their respective terms subject
to:
(a) the limitations of applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally; and
(b) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
[This space intentionally left blank.]
THIS ENGINE MANUFACTURER CONSENT AND AGREEMENT ___ SHALL IN ALL
RESPECTS BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES
OF CONFLICTS OF LAWS.
Dated as of ______________.
ROLLS-ROYCE PLC
By_____________________________________
Name:
Title:
EXHIBIT A-4-II to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF AIRCRAFT PURCHASE AGREEMENT ASSIGNMENT - CFM
--------------------------------------------------------------------------
| CONFIDENTIAL: SUBJECT TO RESTRICTIONS ON DISSEMINATION |
| SET FORTH IN SECTION 8 OF THE PARTICIPATION AGREEMENT (AS DEFINED HEREIN)|
--------------------------------------------------------------------------
PURCHASE AGREEMENT AND ENGINE WARRANTIES ASSIGNMENT ___
PURCHASE AGREEMENT AND ENGINE WARRANTIES ASSIGNMENT ___, dated as of
__________, between Continental Airlines, Inc., a Delaware corporation
("Assignor"), and First Security Bank, National Association, a national banking
association, not in its individual capacity but solely as Owner Trustee
("Assignee") under Trust Agreement ___ dated as of __________ (the "Trust
Agreement"), between the Owner Participant named therein and Assignee, in its
individual capacity, and otherwise not in its individual capacity but solely as
trustee thereunder.
Assignor and Manufacturer (as such term and other capitalized terms are
hereinafter defined) are parties to the Purchase Agreement, providing, among
other things, for the manufacture and sale by Manufacturer or Manufacturer's
wholly owned subsidiary to Assignor of certain aircraft, engines and related
equipment, including the Aircraft. Assignor and Engine Manufacturer are parties
to the General Terms Agreement, containing, among other terms and conditions,
the Engine Warranties.
Assignee wishes to acquire the Aircraft and Assignor, on the terms and
conditions hereinafter set forth, is willing to assign to Assignee certain of
Assignor's rights and interests under the Purchase Agreement and the General
Terms Agreement and Assignee is willing to accept such assignment, as
hereinafter set forth.
AGREEMENTS
The parties hereto agree as follows:
Section 1. DEFINITIONS. For all purposes of this Assignment, except as
otherwise expressly provided or unless the context otherwise requires, the
following terms shall have the following meanings:
AIRCRAFT - The Boeing Model 737-___ aircraft bearing Manufacturer's
Serial No. _______ and U.S. Registration No. __________, to be financed pursuant
to the Participation Agreement, including the Engines.
ENGINES - Two CFM Model ________ series engines bearing manufacturer's
serial numbers ________ and ________, respectively, installed on the Aircraft.
ENGINE MANUFACTURER - CFM International, Inc., a Delaware corporation,
and its successors and assigns.
ENGINE WARRANTIES - Engine Manufacturer's "New Engine Warranty," "New
Parts Warranty," "Ultimate Life Warranty" and "Campaign Change Warranty," as set
forth in the Engine Manufacturer's Engine Product Support Plan which forms a
part of the General Terms Agreement, and as limited by the applicable terms of
the General Terms Agreement and such Engine Product Support Plan.
GENERAL TERMS AGREEMENT - The Agreement No. 6-7075, dated as of June
10, 1985, by and between Engine Manufacturer and Assignor, including the "Engine
Product Support Plan" at Exhibit B thereto, insofar as such Engine Product
Support Plan relates to the Engine Warranties, but excluding any and all letter
agreements attached thereto, to the extent that such General Terms Agreement and
such Exhibit relate to the Engines, as such General Terms Agreement may
hereafter be amended, supplemented and modified to the extent permitted by the
terms of this Assignment to the extent relating to the Engines.
LEASE - The Lease Agreement ___, dated as of __________, as at any time
amended, supplemented and modified, between Assignee, as lessor, and Assignor,
as lessee, providing for the lease of the Aircraft.
MANUFACTURER - The Boeing Company, a Delaware corporation, and its
successors and assigns.
PARTICIPATION AGREEMENT - The Participation Agreement ___, dated as of
___________, among Assignor, the Participants, Assignee and Mortgagee, as at any
time amended, supplemented and modified.
PURCHASE AGREEMENT - Purchase Agreement No. 1951, dated July 23, 1996,
between Manufacturer and Assignor, providing, among other things, for the
manufacture and sale by Manufacturer to Assignor of certain Boeing Model 737
aircraft (including the Aircraft) and including as part thereof Exhibits A, B,
D, E and F thereto, but excluding all other exhibits and letter and supplemental
agreements, to the extent that such Purchase Agreement and such Exhibits relate
to the Aircraft, as such Purchase Agreement may hereafter be amended,
supplemented and modified to the extent permitted by the terms of this
Assignment.
Capitalized terms used but not defined herein shall have the respective
meanings set forth or incorporated by reference, and shall be construed and
interpreted in the manner described, in the Participation Agreement.
Section 2. ASSIGNMENT. Assignor does hereby sell, assign, transfer and
set over unto Assignee and its successors and permitted assigns all of
Assignor's rights and interests in and to the Purchase Agreement, as and only to
the extent that the same relates to the Aircraft, and in and to the General
Terms Agreement, as and only to the extent that the Engine Warranties contained
therein relate to the Engines, except to the extent reserved below, including
without limitation in such assignment (a) all claims for damages in respect of
the Aircraft and the Engines arising as a result of any default by Manufacturer
under the Purchase Agreement or Engine Manufacturer or any other vendor or
supplier of other parts or equipment installed on or in the Aircraft, including
without limitation all warranty service life policies, aircraft performance
guarantees and indemnity provisions contained in the Purchase Agreement and the
Engine Warranties, and all claims arising thereunder, in respect of the Aircraft
and the Engines, (b) any and all rights of Assignor to compel performance of the
terms of the Purchase Agreement in respect of the Aircraft and the Engine
Warranties in respect of the Engines and (c) the right to purchase and take
title to the Aircraft pursuant to the Purchase Agreement; reserving to Assignor,
however, with respect to the Aircraft and each Engine, (i) all rights to receive
any credits due to Assignor with respect to the purchase price of the Aircraft
pursuant to the Purchase Agreement and of the Engines pursuant to the General
Terms Agreement, (ii) all of Assignor's rights and interests in or arising out
of any payments or deposits made relating to the Aircraft or to be made by
Assignor on amounts credited or to be credited or paid or to be paid by the
Manufacturer to the Assignor in respect of the Aircraft and (iii) so long and
only so long as the Aircraft and each Engine shall be subject to the Lease and
no Lease Event of Default shall have occurred and be continuing thereunder, the
rights (A) to demand, accept and retain all rights in and to all property (other
than the Aircraft), data and services that Manufacturer or Engine Manufacturer
is obligated to provide or does provide pursuant to the Purchase Agreement or
the General Terms Agreement, as the case may be, and (B) to obtain services,
training, data and demonstration and test flights pursuant to the Purchase
Agreement or the General Terms Agreement, as the case may be.
Assignee hereby accepts such assignment subject to the terms hereof.
Assignor has furnished a true copy of the Purchase Agreement and a true copy of
the General Terms Agreement to Assignee and has specifically directed Assignee's
attention to Paragraph 10 of Part A, Paragraph 5 of Part C, Paragraph 3 of Part
D, Paragraph 2 of Part D-1, Paragraph 5 of Part I, and Paragraph 9 and 10 of
Part F-2 of Exhibit B to the Purchase Agreement.
Section 3. EXERCISE OF RIGHTS OF "BUYER" UNDER PURCHASE AGREEMENT AND
OF "AIRLINE" UNDER GENERAL TERMS Agreement. Notwithstanding the foregoing, if
and so long as no Lease Event of Default shall have occurred and be continuing,
Assignee authorizes Assignor, to the exclusion of Assignee, during the Term, to
exercise in Assignor's name all rights and powers of the "Buyer" in respect of
the Aircraft under the Purchase Agreement and of the "Airline" in respect of
each Engine under the General Terms Agreement, and of Assignee in respect of a
default by any vendor or supplier of parts and equipment (as specified in clause
(a) of Section 2 above) and to retain any recovery or benefit resulting from the
enforcement of any warranty or indemnity under the Purchase Agreement or the
General Terms Agreement in respect of the Aircraft or each Engine, as the case
may be, except that Assignor may not enter into any change order or other
amendment, modification or supplement to the Purchase Agreement without the
written consent or countersignature of Assignee if such change order, amendment,
modification or supplement would (i) result in any rescission, cancellation or
termination of the Purchase Agreement in respect of the Aircraft or (ii)
materially diminish the rights assigned hereunder to Assignee. Assignee agrees
that, as between Assignee and Manufacturer or Engine Manufacturer, as the case
may be (and without affecting Assignor's duties or obligations under the
Participation Agreement or the Lease), neither Manufacturer nor Engine
Manufacturer, as the case may be, shall be deemed to have knowledge of any Lease
Default, Lease Event of Default, declaration of default or the discontinuance or
remedy thereof or the Aircraft or either Engine being no longer subject to the
Lease or any change in the authority of Assignor or Assignee, as the case may
be, to exercise any of the rights established hereunder unless and until
Manufacturer shall have received written notice thereof from Assignee or
Mortgagee addressed to its Vice President - Contracts at X.X. Xxx 0000, Xxxx
Xxxx 00-00, Xxxxxxx, Xxxxxxxxxx 00000-0000, if by mail, or to (000) 000-0000, if
by facsimile, or, in the case of Engine Manufacturer, Engine Manufacturer shall
have received written notice thereof from Assignee or Mortgagee addressed to its
Commercial Contract Director at X.X. Xxx 00000, Xxxxxxxxxx, Xxxx 00000-0000, if
by mail, or to (000) 000-0000, if by facsimile. So long as Manufacturer and
Engine Manufacturer act in good faith, Manufacturer and Engine Manufacturer may
rely conclusively on any such notice without inquiring as to the accuracy of, or
the entitlement of the party to give, such notice.
The Engine Manufacturer shall not be deemed to have knowledge of the
replacement of an Engine with another CFM engine, until the Engine Manufacturer
has received written notice thereof. Such notice shall include the serial number
of the Engine being replaced, as well as the serial number of the replacement
Engine and shall be sent to: Lease Pool Manager, Customer Support Operation, GE
Aircraft Engines, 000 Xxxxxxxx Xxxxxx, Xxxx 000, Xxxxxxxxxx, Xxxx 00000.
Section 4. CERTAIN AGREEMENTS. It is expressly agreed that, anything
herein contained to the contrary notwithstanding:
(a) Assignor shall at all times remain liable (i) to Manufacturer
under the Purchase Agreement to perform all the duties and obligations of
the "Buyer" thereunder and (ii) to Engine Manufacturer under the General
Terms Agreement to perform all the duties and obligations of the "Airline"
thereunder, in each case to the same extent as if this Assignment had not
been executed,
(b) the exercise by Assignee of any of the rights assigned hereunder
shall not release Assignor from any of its duties or obligations to
Manufacturer under the Purchase Agreement or to Engine Manufacturer under
the General Terms Agreement except to the extent that such exercise by
Assignee shall constitute performance of such duties and obligations, and
(c) except as provided in the next sentence, none of Assignee,
Mortgagee or any Participant shall have any obligation or liability under
the Purchase Agreement or the General Terms Agreement by reason of, or
arising out of, this Assignment or be obligated to perform any of the
obligations or duties of Assignor under the Purchase Agreement or the
General Terms Agreement or to make any payment thereunder or to make any
inquiry as to the sufficiency of any payment received by any of them or to
present or file any claim or to take any other action to collect or enforce
any claim for any payment assigned hereunder.
Anything contained in this Assignment, the Consent and Agreement or the Engine
Consent and Agreement to the contrary notwithstanding, but without in any way
releasing Assignor from any of its duties or obligations under the Purchase
Agreement, the General Terms Agreement or this Assignment, Assignee and
Mortgagee confirm for the benefit of Manufacturer and Engine Manufacturer,
respectively, that, insofar as the provisions of the Purchase Agreement or the
Engine Warranties relate to the Aircraft or the Engines, as the case may be, in
exercising any rights under the Purchase Agreement or the Engine Warranties, or
in making any claim with respect to the Aircraft or other goods and services
delivered or to be delivered pursuant to the Purchase Agreement or the Engine
Warranties, the terms and conditions of the Purchase Agreement including,
without limitation, the Disclaimer and Release and Exclusion of Liabilities
provisions of Sections 12.1 through 12.4 of Article 12 and the Engine
Warranties, including without limitation Exhibit B (the "Product Assurance
Document") shall apply to, and be binding upon, Assignee and Mortgagee to the
same extent as Assignor.
Section 5. PRESERVATION OF RIGHTS. Nothing contained in this
Assignment shall in any way diminish or limit the provisions of Assignor's
indemnity in Section 9 of the Participation Agreement with respect to any
liability of Assignee to Manufacturer in any way relating to or arising out of
the Purchase Agreement. Nothing contained in this Assignment shall subject
Manufacturer or Engine Manufacturer to any obligation or liability to which it
would not otherwise be subject under the Purchase Agreement or under the General
Terms Agreement, as the case may be, or modify in any respect the contract
rights of Manufacturer or Engine Manufacturer thereunder, except as may be
provided in the Consent and Agreement and the Engine Consent and Agreement, or
require Manufacturer to divest itself of title to or possession of the Aircraft
or other goods and services until delivery thereof and payment therefor as
provided in the Purchase Agreement or subject Manufacturer or Engine
Manufacturer to any multiple or duplicative liability or obligation under the
Purchase Agreement or the General Terms Agreement, as the case may be. No
further assignment of the Engine Warranties, including without limitation
assignments for security purposes (other than under the Trust Indenture), are
permitted without the express written consent of Engine Manufacturer.
Section 6. APPOINTMENT OF ATTORNEY. Effective at any time when a Lease
Event of Default shall have occurred and be continuing, (i) unless Assignee and
Mortgagee (so long as the Lien of the Trust Indenture has not been discharged),
in their sole discretion, shall notify Manufacturer or Engine Manufacturer, as
the case may be, to the contrary, the authorization given to Assignor under
Section 3 hereof to enforce such rights and claims shall henceforth cease to be
effective and Assignee and its successors and permitted assigns shall, to the
exclusion of Assignor, be entitled to assert and enforce such rights and claims
as substitute party plaintiff or otherwise, and Assignor shall, at the request
of Assignee or its successors or permitted assigns and at Assignor's expense,
cooperate with and take such action as is reasonably necessary to enable
Assignee and its successors and permitted assigns to enforce such rights and
claims, and (ii) Assignor does hereby constitute Assignee, its successors and
permitted assigns, Assignor's true and lawful attorney, irrevocably, with full
power (in the name of Assignor or otherwise) to ask, require, demand, receive,
compound and give acquittance for any and all monies and claims for monies due
and to become due under, or arising out of, the Purchase Agreement in respect of
the Aircraft or the Engine Warranties in respect of the Engines, as the case may
be, to the extent that the same have been assigned by this Assignment and, for
such period as Assignee may exercise rights with respect thereto under this
Assignment, to endorse any checks or other instruments or orders in connection
therewith and to file any claims or take any action or institute (or, if
previously commenced, assume control of) any proceeding and to obtain any
recovery in connection therewith which Assignee may deem to be necessary or
advisable in the premises.
Section 7. OTHER ACTION. Assignor agrees that, at Assignor's sole cost
and expense, at any time and from time to time, upon the written request of
Assignee or, so long as the Lien of the Trust Indenture has not been discharged,
Mortgagee, Assignor will promptly and duly execute and deliver any and all such
further instruments and documents and take such further action as Assignee or,
so long as the Lien of the Trust Indenture has not been discharged, Mortgagee,
may reasonably request in order to obtain the full benefits of this Assignment
and of the rights and powers herein granted.
Section 8. ASSIGNOR'S REPRESENTATIONS AND WARRANTIES. Assignor does
hereby represent and warrant that the Purchase Agreement and the General Terms
Agreement are in full force and effect as to Assignor and are enforceable
against Assignor in accordance with their respective terms. Assignor does hereby
further represent and warrant that Assignor has, with the authorized execution
of the Consent and Agreement and the Engine Consent and Agreement, (i) received
all necessary consents to the assignment and transfer contemplated herein
(including without limitation the assignment and transfer contemplated herein of
Assignor's rights under the Purchase Agreement and the General Terms Agreement)
and (ii) assuming that the Consent and Agreement and the Engine Consent and
Agreement are in full force and effect, such consents are in full force and
effect and Assignor further represents and warrants that Assignor has not
assigned (except as assigned hereby) or pledged (except pursuant to the 737
Purchase Agreement Assignment dated as of November 27, 1996 between Lessee and
Manufacturer, the Lien of which will have been released at or prior to the
delivery of this Agreement), and hereby covenants that it will not during the
Term assign (except as assigned hereby) or pledge so long as this Assignment
shall remain in effect, the whole or any part of the rights hereby assigned or
any of its rights with respect to the Aircraft under the Purchase Agreement or
with respect to the Engines under the General Terms Agreement not assigned
hereby to anyone other than Assignee.
Section 9. PAYMENTS. Notwithstanding this Assignment and anything
herein to the contrary, all amounts that Manufacturer or Engine Manufacturer is
obligated to pay to Assignor under the Purchase Agreement with respect to the
Aircraft or under the General Terms Agreement with respect to the Engines,
including, without limitation, resulting from the enforcement of any warranty,
covenant, representation, indemnity or product support agreement thereunder or
the enforcement or exercise of any right or power thereunder or hereunder (in
the case of Manufacturer, a "Manufacturer Payment," and in the case of Engine
Manufacturer, an "Engine Manufacturer Payment") (excluding, however, from
Manufacturer Payments and Engine Manufacturer Payments any amounts Manufacturer
is obligated to pay to Assignor with respect to the rights reserved to Assignor
in Section 2 hereof), will be payable and applicable as follows: all
Manufacturer Payments and Engine Manufacturer Payments shall be paid to Assignor
unless and until Manufacturer or Engine Manufacturer, as the case may be, shall
have received written notice as set forth in Section 3 hereof from Assignee or
Mortgagee that a Lease Event of Default has occurred and is continuing,
whereupon Manufacturer or Engine Manufacturer, as the case may be, will, until
Manufacturer or Engine Manufacturer, as the case may be, shall have received
written notice from Assignee or Mortgagee that all Lease Events of Default have
been cured or waived, make any and all such payments directly to Assignee (or,
so long as the Trust Indenture has not been discharged and Manufacturer or
Engine Manufacturer, as the case may be, shall have received notice thereof, to
Mortgagee). Any amounts received by Assignee pursuant to the immediately
preceding sentence shall, to the extent not theretofore applied in satisfaction
of sums owing to Assignee in accordance with the terms of the Operative
Agreements, be held and invested as provided in Section 4.5 of the Lease.
Section 10. ASSIGNEE'S AGREEMENT. Assignee agrees that, during the
Term, except as otherwise contemplated by Section 2 hereof and unless a Lease
Event of Default shall have occurred and be continuing, it will not enter into
any agreement that would amend, modify, supplement, rescind, cancel or terminate
the Purchase Agreement or the General Terms Agreement in respect of the Aircraft
or the Engines without the prior written consent of Assignor.
Section 11. EXECUTION; COUNTERPARTS, ETC. This Assignment is executed
by Assignor and Assignee concurrently with the execution and delivery of the
Lease. This Assignment may be executed by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original,
and all of which counterparts, taken together, shall constitute one and the same
instrument. The section headings in this Assignment are for convenience of
reference only and shall not modify, define, expand or limit any of the terms or
provisions hereof.
Section 12. CONFIDENTIAL TREATMENT. Assignee agrees that it will not
disclose to any third party the terms of the Purchase Agreement or the General
Terms Agreement except (i) as required by applicable law or governmental
regulation, (ii) in connection with the financing of the Aircraft, (iii) as
permitted under Section 8 of the Participation Agreement as if this Assignment
were specifically referred to therein, (iv) with the consent of Assignor,
Manufacturer and the Engine Manufacturer (as the case may be) or (v) in
connection with any sale or lease of the Aircraft. Assignee further agrees that
in connection with any disclosures made as contemplated by clauses (ii) (except
in connection with the financing contemplated by the Participation Agreement),
(iii) (except as to clauses (C) and (E) and (F) of Section 8 of the
Participation Agreement) or (iv) of the preceding sentence, Assignee shall
instruct the entity to which such information is disclosed to treat such
information as confidential on the terms set forth in this Section 12.
Section 13. ASSIGNMENT TO MORTGAGEE. The right, title and interest of
Assignee in and to this Assignment has been assigned to and is subject to a
security interest in favor of Wilmington Trust Company, as Mortgagee under the
Trust Indenture, for the benefit of the Noteholders and the Indenture
Indemnitees referred to in such Trust Indenture, all to the extent provided in
such Trust Indenture. Assignor hereby consents to such assignment and to the
creation of such security interest in and to this Assignment.
SECTION 14. GOVERNING LAW. THIS ASSIGNMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAWS.
[This space intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Purchase
Agreement and Engine Warranties Assignment ___ to be duly executed as of the day
and year first above written.
CONTINENTAL AIRLINES, INC.
By______________________________
Name:
Title:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but solely as Owner
Trustee
By______________________________
Name:
Title:
The undersigned, as Mortgagee for the benefit of the Note Holders and
Indenture Indemnitees and as assignee of, and holder of a security interest in,
the estate, right, title and interest of Assignee in and to the foregoing
Assignment pursuant to the terms of the Trust Indenture agrees to the terms of
the foregoing Assignment and agrees that its rights and remedies under the Trust
Indenture shall be subject to the terms and conditions of the foregoing
Assignment, including Sections 4 and 5 therein, and of the Purchase Agreement
and the General Terms Agreement.
WILMINGTON TRUST COMPANY,
as Mortgagee
By______________________________
Name:
Title:
MANUFACTURER CONSENT AND AGREEMENT ___
The undersigned, THE BOEING COMPANY, a Delaware corporation, hereby
acknowledges notice of and consents to all of the terms of Purchase Agreement
and Engine Warranties Assignment ___ (herein called the "Assignment") (the
defined terms therein being hereinafter used with the same meanings unless
otherwise defined herein) between Continental Airlines, Inc., as Assignor, and
First Security Bank, National Association, as Owner Trustee, as Assignee, and
hereby confirms to Assignee that: (i) all representations, warranties,
indemnities and agreements of Manufacturer under the Purchase Agreement with
respect to the Aircraft shall inure to the benefit of Assignee to the same
extent as if originally named the "Buyer" therein, except as provided by Section
2 of the Assignment; (ii) Assignee shall not be liable for any of the
obligations or duties of Assignor under the Purchase Agreement, nor shall the
Assignment give rise to any duties or obligations whatsoever on the part of
Assignee owing to Manufacturer, except as provided in Section 4 of the
Assignment; (iii) Manufacturer consents to the grant of a security interest in
the Aircraft pursuant to the Trust Indenture by Assignee and agrees that the
Assignment constitutes an agreement by Assignee as required by Article 10.2 of
the Purchase Agreement; and (iv) Manufacturer will continue to pay to Assignor
or its order all payments that Manufacturer may be required to make in respect
of the Aircraft under the Purchase Agreement unless and until Manufacturer shall
have received written notice from Assignee or Mortgagee addressed to its Vice -
President - Contracts at X.X. Xxx 0000, Xxxx Xxxx 00-00, Xxxxxxx, Xxxxxxxxxx
00000-0000, if by mail, or to (000) 000-0000, if by facsimile, that a Lease
Event of Default has occurred and is continuing, whereupon Manufacturer will not
be required to make further inquiry into the content of such notice and will
make any and all payments that it may be required thereafter to make in respect
of the Aircraft under the Purchase Agreement and the right to receive that has
been assigned under the Assignment, directly to Assignee at its address at 00
Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attn: Corporate Trust Department
(or, so long as the Trust Indenture has not been discharged, directly to
Mortgagee at its address at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attn: Corporate Trust Administration), unless and
until Manufacturer shall have received notice in writing from Assignee or
Mortgagee that no Lease Event of Default is continuing, whereupon Manufacturer
shall make all payments that Manufacturer may be required to make in respect of
the Aircraft under the Purchase Agreement to Assignor or its order, as
aforesaid.
Manufacturer hereby represents and warrants that: (i) Manufacturer is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware; (ii) the making and performance of the Purchase
Agreement and this Manufacturer Consent and Agreement ___ have been duly
authorized by all necessary corporate action on the part of Manufacturer, do not
require any stockholder approval and do not contravene Manufacturer's
Certificate of Incorporation or by-laws or any indenture, credit agreement or
other contractual agreement to which Manufacturer is a party or by which it is
bound and the making of the Purchase Agreement and this Manufacturer Consent and
Agreement ___, the giving of the warranty obligations thereunder, do not, as to
such making or giving, contravene any law binding on Manufacturer; and (iii) the
Purchase Agreement constituted, as of the date thereof and at all times
thereafter to and including the date of this Manufacturer Consent and Agreement
___, and this Manufacturer Consent and Agreement ___ constitutes, binding
obligations of Manufacturer enforceable against Manufacturer in accordance with
their respective terms subject to (A) the limitations of applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights of
creditors generally and (B) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law), which
principles do not make the remedies available at law or in equity with respect
to the Purchase Agreement and this Manufacturer Consent and Agreement ___
inadequate for the practical realization of the benefits intended to be provided
thereby. It is understood that the execution of this Manufacturer Consent and
Agreement ___ by Manufacturer is subject to the condition that, concurrently
with the delivery of the Aircraft to Assignee, Assignee shall lease the Aircraft
to Assignor under the Lease.
THIS MANUFACTURER CONSENT AND AGREEMENT ___ SHALL IN ALL RESPECTS BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF WASHINGTON, INCLUDING ALL MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT REFERENCE TO CONFLICTS OF
LAWS PRINCIPLES.
Dated as of ____________.
THE BOEING COMPANY
By______________________________
Name:
Title:
ENGINE MANUFACTURER CONSENT AND AGREEMENT ___
The undersigned, CFM INTERNATIONAL INC., a Delaware corporation,
hereby acknowledges notice of and consents to all of the terms of Purchase
Agreement and Engine Warranties Assignment ___ (herein called the "Assignment")
(the defined terms therein being hereinafter used with the same meanings unless
otherwise defined herein) between Continental Airlines, Inc., as Assignor, and
First Security Bank, National Association, as Owner Trustee, as Assignee. Under
the General Terms Agreement, Engine Manufacturer has agreed to support certain
CFM Model ________ engines and spare parts therefor purchased by Assignor from
Engine Manufacturer, as installed on certain Boeing Model 737 aircraft. Engine
Manufacturer hereby confirms to Assignor and Assignee that the Engine
Warranties, as and to the extent that such relate to the Engines, shall inure to
the benefit of Assignee (and, so long as the Trust Indenture has not been
discharged, Mortgagee) to the same extent as if originally named "Airline" in
the General Terms Agreement and to the benefit of Assignor (but only to the
extent provided for in the Assignment) in each case subject to the terms and
conditions of the Assignment; PROVIDED, that Engine Manufacturer shall not owe
any liability or obligation under the Engine Warranties more than once in total.
Engine Manufacturer represents and warrants that:
1. It is a corporation duly organized and validly existing in good
standing under the laws of the State of Delaware;
2. The making and performance of this Engine Manufacturer Consent and
Agreement ___ in accordance with its terms have been duly authorized by all
necessary corporate action on the part of Engine Manufacturer, do not require
any stockholder approval and do not contravene its Certificate of Incorporation
or by-laws or any debenture, credit agreement or other contractual agreement to
which Engine Manufacturer is a party or by which it is bound or any law binding
on Engine Manufacturer;
3. The making and performance of the Engine Warranties in accordance
with their terms have been duly authorized by all necessary corporate action on
the part of Engine Manufacturer, do not require any stockholder approval and do
not contravene Engine Manufacturer's Certificate of Incorporation or by-laws or
any debenture, credit agreement or other contractual agreement to which Engine
Manufacturer is a party or by which it is bound, and do not, as to the making
thereof, contravene any law binding on Engine Manufacturer, and to the best of
its knowledge, do not as to the performance thereof contravene any law binding
on Engine Manufacturer; and
4. The Engine Warranties constituted as of the date on which they were
made and at all times thereafter to and including the date of this Engine
Manufacturer Consent and Agreement ___, and this Engine Manufacturer Consent and
Agreement ___ constitute binding obligations of Engine Manufacturer enforceable
against Engine Manufacturer in accordance with their respective terms subject
to:
(a) the limitations of applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights
of creditors generally; and
(b) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
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THIS ENGINE MANUFACTURER CONSENT AND AGREEMENT ___ SHALL IN ALL
RESPECTS BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES
OF CONFLICTS OF LAWS.
Dated as of _____________.
CFM INTERNATIONAL, INC.
By_____________________________
Name:
Title:
EXHIBIT A-4-III
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF AIRCRAFT PURCHASE AGREEMENT ASSIGNMENT - GE
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| CONFIDENTIAL: SUBJECT TO RESTRICTIONS ON DISSEMINATION |
| SET FORTH IN SECTION 8 OF THE PARTICIPATION AGREEMENT (AS DEFINED HEREIN)|
--------------------------------------------------------------------------
PURCHASE AGREEMENT AND ENGINE WARRANTIES ASSIGNMENT ___
PURCHASE AGREEMENT AND ENGINE WARRANTIES ASSIGNMENT ___, dated as of
___________, between Continental Airlines, Inc., a Delaware corporation
("Assignor"), and First Security Bank, National Association, a national banking
association, not in its individual capacity but solely as Owner Trustee
("Assignee") under Trust Agreement ___ dated as of ___________ (the "Trust
Agreement"), between the Owner Participant named therein and Assignee, in its
individual capacity, and otherwise not in its individual capacity but solely as
trustee thereunder.
Assignor and Manufacturer (as such term and other capitalized terms
are hereinafter defined) are parties to the Purchase Agreement, providing, among
other things, for the manufacture and sale by Manufacturer or Manufacturer's
wholly owned subsidiary to Assignor of certain aircraft, engines and related
equipment, including the Aircraft. Assignor and Engine Manufacturer are parties
to the General Terms Agreement, containing, among other terms and conditions,
the Engine Warranties.
Assignee wishes to acquire the Aircraft and Assignor, on the terms and
conditions hereinafter set forth, is willing to assign to Assignee certain of
Assignor's rights and interests under the Purchase Agreement and the General
Terms Agreement and Assignee is willing to accept such assignment, as
hereinafter set forth. AGREEMENTS
The parties hereto agree as follows:
Section 1. DEFINITIONS. For all purposes of this Assignment, except as
otherwise expressly provided or unless the context otherwise requires, the
following terms shall have the following meanings:
AIRCRAFT - The Boeing Model 777-224 aircraft bearing Manufacturer's
Serial No. ______ and U.S. Registration No. N_________, to be financed pursuant
to the Participation Agreement, including the Engines.
AGTA - The Aircraft General Terms Agreement AGTA-CAL between the
Manufacturer and Lessee, dated October 10, 1997.
ENGINES - Two General Electric Company GE90-90B series engines bearing
manufacturer's serial numbers ______ and ______, respectively, installed on the
Aircraft.
ENGINE MANUFACTURER - General Electric Company, a New York
corporation, and its successors and assigns.
ENGINE WARRANTIES - Engine Manufacturer's "New Engine Warranty," "New
Parts Warranty," "Ultimate Life Warranty" and "Campaign Change Warranty," as set
forth in the Engine Manufacturer's Engine Product Support Plan which forms a
part of the General Terms Agreement, and as limited by the applicable terms of
the General Terms Agreement and such Engine Product Support Plan.
GENERAL TERMS AGREEMENT - The Amended and Restated General Terms
Agreement No. 6-8057, dated as of November 1, 1994, by and between Engine
Manufacturer and Assignor, including the "Engine Product Support Plan" at
Exhibit B thereto, insofar as such Engine Product Support Plan relates to the
Engine Warranties, but excluding any and all letter agreements attached thereto,
to the extent that such General Terms Agreement and such Exhibit relate to the
Engine Warranties, as such General Terms Agreement may hereafter be amended,
supplemented and modified to the extent permitted by the terms of this
Assignment to the extent relating to the Engines.
LEASE - The Lease Agreement ___, dated as of ___________, as at any
time amended, supplemented and modified, between Assignee, as lessor, and
Assignor, as lessee, providing for the lease of the Aircraft.
MANUFACTURER - The Boeing Company, a Delaware corporation, and its
successors and assigns.
PARTICIPATION AGREEMENT - The Participation Agreement ___, dated as of
___________, among Assignor, the Participants, Assignee and Mortgagee, as at any
time amended, supplemented and modified.
PURCHASE AGREEMENT - Purchase Agreement No.2061 (formerly known as
Purchase Agreement No. 1785), dated as of October 10, 1997, between Manufacturer
and Assignor, providing, among other things, for the manufacture and sale by
Manufacturer to Assignor of certain Boeing Model 777 aircraft (including the
Aircraft) and including as part thereof Exhibits A, B, XXX0, XX0 and SLP1
thereto and the AGTA (as and to the extent incorporated by reference in the
Purchase Agreement and including Exhibit C thereto and excluding the other
Exhibits and Letter Agreements hereto), but excluding all other exhibits and
letter and supplemental agreements, to the extent that such Purchase Agreement
and such Exhibits relate to the Aircraft, as such Purchase Agreement may
hereafter be amended, supplemented and modified to the extent permitted by the
terms of this Assignment.
Capitalized terms used but not defined herein shall have the
respective meanings set forth or incorporated by reference, and shall be
construed and interpreted in the manner described, in the Participation
Agreement.
Section 2. ASSIGNMENT. Assignor does hereby sell, assign, transfer and
set over unto Assignee and its successors and permitted assigns all of
Assignor's rights and interests in and to the Purchase Agreement, as and only to
the extent that the same relates to the Aircraft, and in and to the General
Terms Agreement, as and only to the extent that the Engine Warranties contained
therein relate to the Engines, except to the extent reserved below, including
without limitation in such assignment (a) all claims for damages in respect of
the Aircraft and the Engines arising as a result of any default by Manufacturer
under the Purchase Agreement or Engine Manufacturer or any other vendor or
supplier of other parts or equipment installed on or in the Aircraft, including
without limitation all warranty service life policies, aircraft performance
guarantees and indemnity provisions contained in the Purchase Agreement and the
Engine Warranties, and all claims arising thereunder, in respect of the Aircraft
and the Engines, (b) any and all rights of Assignor to compel performance of the
terms of the Purchase Agreement in respect of the Aircraft and the Engine
Warranties in respect of the Engines and (c) the right to purchase and take
title to the Aircraft pursuant to the Purchase Agreement; reserving to Assignor,
however, with respect to the Aircraft and each Engine, (i) all rights to receive
any credits due to Assignor with respect to the purchase price of the Aircraft
pursuant to the Purchase Agreement and of the Engines pursuant to the General
Terms Agreement, (ii) all of Assignor's rights and interests in or arising out
of any payments or deposits made relating to the Aircraft or to be made by
Assignor on amounts credited or to be credited or paid or to be paid by the
Manufacturer to the Assignor in respect of the Aircraft and (iii) so long and
only so long as the Aircraft and each Engine shall be subject to the Lease and
no Lease Event of Default shall have occurred and be continuing thereunder, the
rights (A) to demand, accept and retain all rights in and to all property (other
than the Aircraft), data and services that Manufacturer or Engine Manufacturer
is obligated to provide or does provide pursuant to the Purchase Agreement or
the General Terms Agreement, as the case may be, and (B) to obtain services,
training, data and demonstration and test flights pursuant to the Purchase
Agreement or the General Terms Agreement, as the case may be.
Assignee hereby accepts such assignment subject to the terms hereof.
Assignor has furnished a true copy of the Purchase Agreement and a true copy of
the General Terms Agreement to Assignee and has specifically directed Assignee's
attention to Section 12 of Part 2, Section 5 of Part 3, Section 6 of Part 5 and
Section 3 of Part 6 of Exhibit C to the AGTA.
Section 3. EXERCISE OF RIGHTS OF "CUSTOMER" UNDER PURCHASE AGREEMENT
AND OF "AIRLINE" UNDER GENERAL TERMS AGREEMENT. Notwithstanding the foregoing,
if and so long as no Lease Event of Default shall have occurred and be
continuing, Assignee authorizes Assignor, to the exclusion of Assignee, during
the Term, to exercise in Assignor's name all rights and powers of the "Customer"
in respect of the Aircraft under the Purchase Agreement and of the "Airline" in
respect of each Engine under the General Terms Agreement, and of Assignee in
respect of a default by any vendor or supplier of parts and equipment (as
specified in clause (a) of Section 2 above) and to retain any recovery or
benefit resulting from the enforcement of any warranty or indemnity under the
Purchase Agreement or the General Terms Agreement in respect of the Aircraft or
each Engine, as the case may be, except that Assignor may not enter into any
change order or other amendment, modification or supplement to the Purchase
Agreement without the written consent or countersignature of Assignee if such
change order, amendment, modification or supplement would (i) result in any
rescission, cancellation or termination of the Purchase Agreement in respect of
the Aircraft or (ii) materially diminish the rights assigned hereunder to
Assignee. Assignee agrees that, as between Assignee and Manufacturer or Engine
Manufacturer, as the case may be (and without affecting Assignor's duties or
obligations under the Participation Agreement or the Lease), neither
Manufacturer nor Engine Manufacturer, as the case may be, shall be deemed to
have knowledge of any Lease Default, Lease Event of Default, declaration of
default or the discontinuance or remedy thereof or the Aircraft or either Engine
being no longer subject to the Lease or any change in the authority of Assignor
or Assignee, as the case may be, to exercise any of the rights established
hereunder unless and until Manufacturer shall have received written notice
thereof from Assignee or Mortgagee addressed to its Vice President - Contracts
at X.X. Xxx 0000, Mail Code 75-38, Xxxxxxx, Xxxxxxxxxx 00000-0000, if by mail,
or to (000) 000-0000, if by facsimile, or, in the case of Engine Manufacturer,
Engine Manufacturer shall have received written notice thereof from Assignee or
Mortgagee addressed to General Electric Company, GE Aircraft Engines, Xxx Xxxxxx
Xxx, Xxxxxxxxxx, Xxxx 00000-0000, Attention: Director, Commercial Contracts, if
by facsimile. So long as Manufacturer and Engine Manufacturer act in good faith,
Manufacturer and Engine Manufacturer may rely conclusively on any such notice
without inquiring as to the accuracy of, or the entitlement of the party to
give, such notice.
The Engine Manufacturer shall not be deemed to have knowledge of the
replacement of an Engine with another GE90 engine, until the Engine Manufacturer
has received written notice thereof. Such notice shall include the serial number
of the Engine being replaced, as well as the serial number of the replacement
Engine and shall be sent to: Lease Pool Manager, Customer Support Operation, GE
Aircraft Engines, 000 Xxxxxxxx Xxxxxx, Xxxx 000, Xxxxxxxxxx, Xxxx 00000.
Section 4. CERTAIN AGREEMENTS. It is expressly agreed that, anything
herein contained to the contrary notwithstanding:
(a) Assignor shall at all times remain liable (i) to Manufacturer
under the Purchase Agreement to perform all the duties and obligations of
the "Customer" thereunder and (ii) to Engine Manufacturer under the General
Terms Agreement to perform all the duties and obligations of the "Airline"
thereunder, in each case to the same extent as if this Assignment had not
been executed,
(b) the exercise by Assignee of any of the rights assigned hereunder
shall not release Assignor from any of its duties or obligations to
Manufacturer under the Purchase Agreement or to Engine Manufacturer under
the General Terms Agreement except to the extent that such exercise by
Assignee shall constitute performance of such duties and obligations, and
(c) except as provided in the next sentence, none of Assignee,
Mortgagee or any Participant shall have any obligation or liability under
the Purchase Agreement or the General Terms Agreement by reason of, or
arising out of, this Assignment or be obligated to perform any of the
obligations or duties of Assignor under the Purchase Agreement or the
General Terms Agreement or to make any payment thereunder or to make any
inquiry as to the sufficiency of any payment received by any of them or to
present or file any claim or to take any other action to collect or enforce
any claim for any payment assigned hereunder.
Anything contained in this Assignment, the Consent and Agreement or the Engine
Consent and Agreement to the contrary notwithstanding, but without in any way
releasing Assignor from any of its duties or obligations under the Purchase
Agreement, the General Terms Agreement or this Assignment, Assignee and
Mortgagee confirm for the benefit of Manufacturer and Engine Manufacturer,
respectively, that, insofar as the provisions of the Purchase Agreement or the
Engine Warranties relate to the Aircraft or the Engines, as the case may be, in
exercising any rights under the Purchase Agreement or the Engine Warranties, or
in making any claim with respect to the Aircraft or other goods and services
delivered or to be delivered pursuant to the Purchase Agreement or the Engine
Warranties, the terms and conditions of the Purchase Agreement including,
without limitation, the Disclaimer and Release and the Exclusion of
Consequential and Other Damages provisions of Sections 12.1 through 12.3 of
Exhibit C to the AGTA and the Engine Warranties, including without limitation
Exhibit B (the "Product Assurance Document") shall apply to, and be binding
upon, Assignee and Mortgagee to the same extent as Assignor.
Section 5. PRESERVATION OF RIGHTS. Nothing contained in this
Assignment shall in any way diminish or limit the provisions of Assignor's
indemnity in Section 9 of the Participation Agreement with respect to any
liability of Assignee to Manufacturer in any way relating to or arising out of
the Purchase Agreement. Nothing contained in this Assignment shall subject
Manufacturer or Engine Manufacturer to any obligation or liability to which it
would not otherwise be subject under the Purchase Agreement or under the General
Terms Agreement, as the case may be, or modify in any respect the contract
rights of Manufacturer or Engine Manufacturer thereunder, except as may be
provided in the Consent and Agreement and the Engine Consent and Agreement, or
require Manufacturer to divest itself of title to or possession of the Aircraft
or other goods and services until delivery thereof and payment therefor as
provided in the Purchase Agreement or subject Manufacturer or Engine
Manufacturer to any multiple or duplicative liability or obligation under the
Purchase Agreement or the General Terms Agreement, as the case may be. No
further assignment of the Engine Warranties, including without limitation
assignments for security purposes (other than under the Trust Indenture), are
permitted without the express written consent of Engine Manufacturer.
Section 6. APPOINTMENT OF ATTORNEY. Effective at any time when a Lease
Event of Default shall have occurred and be continuing, (i) unless Assignee and
Mortgagee (so long as the Lien of the Trust Indenture has not been discharged),
in their sole discretion, shall notify Manufacturer or Engine Manufacturer, as
the case may be, to the contrary, the authorization given to Assignor under
Section 3 hereof to enforce such rights and claims shall henceforth cease to be
effective and Assignee and its successors and permitted assigns shall, to the
exclusion of Assignor, be entitled to assert and enforce such rights and claims
as substitute party plaintiff or otherwise, and Assignor shall, at the request
of Assignee or its successors or permitted assigns and at Assignor's expense,
cooperate with and take such action as is reasonably necessary to enable
Assignee and its successors and permitted assigns to enforce such rights and
claims, and (ii) Assignor does hereby constitute Assignee, its successors and
permitted assigns, Assignor's true and lawful attorney, irrevocably, with full
power (in the name of Assignor or otherwise) to ask, require, demand, receive,
compound and give acquittance for any and all monies and claims for monies due
and to become due under, or arising out of, the Purchase Agreement in respect of
the Aircraft or the Engine Warranties in respect of the Engines, as the case may
be, to the extent that the same have been assigned by this Assignment and, for
such period as Assignee may exercise rights with respect thereto under this
Assignment, to endorse any checks or other instruments or orders in connection
therewith and to file any claims or take any action or institute (or, if
previously commenced, assume control of) any proceeding and to obtain any
recovery in connection therewith which Assignee may deem to be necessary or
advisable in the premises.
Section 7. OTHER ACTION. Assignor agrees that, at Assignor's sole cost
and expense, at any time and from time to time, upon the written request of
Assignee or, so long as the Lien of the Trust Indenture has not been discharged,
Mortgagee, Assignor will promptly and duly execute and deliver any and all such
further instruments and documents and take such further action as Assignee or,
so long as the Lien of the Trust Indenture has not been discharged, Mortgagee,
may reasonably request in order to obtain the full benefits of this Assignment
and of the rights and powers herein granted.
Section 8. ASSIGNOR'S REPRESENTATIONS AND WARRANTIES. Assignor does
hereby represent and warrant that the Purchase Agreement and the General Terms
Agreement are in full force and effect as to Assignor and are enforceable
against Assignor in accordance with their respective terms. Assignor does hereby
further represent and warrant that Assignor has, with the authorized execution
of the Consent and Agreement and the Engine Consent and Agreement, (i) received
all necessary consents to the assignment and transfer contemplated herein
(including without limitation the assignment and transfer contemplated herein of
Assignor's rights under the Purchase Agreement and the General Terms Agreement)
and (ii) assuming that the Consent and Agreement and the Engine Consent and
Agreement are in full force and effect, such consents are in full force and
effect and Assignor further represents and warrants that Assignor has not
assigned (except as assigned hereby) or pledged (except pursuant to the Amended
and Restated 777 Purchase Agreement Assignment dated as of October 13, 1997
between Lessee and Manufacturer, the Lien of which will have been released at or
prior to the delivery of this Agreement), and hereby covenants that it will not
during the Term assign (except as assigned hereby) or pledge so long as this
Assignment shall remain in effect, the whole or any part of the rights hereby
assigned or any of its rights with respect to the Aircraft under the Purchase
Agreement or with respect to the Engines under the General Terms Agreement not
assigned hereby to anyone other than Assignee.
Section 9. PAYMENTS. Notwithstanding this Assignment and anything
herein to the contrary, all amounts that Manufacturer or Engine Manufacturer is
obligated to pay to Assignor under the Purchase Agreement with respect to the
Aircraft or under the General Terms Agreement with respect to the Engines,
including, without limitation, resulting from the enforcement of any warranty,
covenant, representation, indemnity or product support agreement thereunder or
the enforcement or exercise of any right or power thereunder or hereunder (in
the case of Manufacturer, a "Manufacturer Payment," and in the case of Engine
Manufacturer, an "Engine Manufacturer Payment") (excluding, however, from
Manufacturer Payments and Engine Manufacturer Payments any amounts Manufacturer
is obligated to pay to Assignor with respect to the rights reserved to Assignor
in Section 2 hereof), will be payable and applicable as follows: all
Manufacturer Payments and Engine Manufacturer Payments shall be paid to Assignor
unless and until Manufacturer or Engine Manufacturer, as the case may be, shall
have received written notice as set forth in Section 3 hereof from Assignee or
Mortgagee that a Lease Event of Default has occurred and is continuing,
whereupon Manufacturer or Engine Manufacturer, as the case may be, will, until
Manufacturer or Engine Manufacturer, as the case may be, shall have received
written notice from Assignee or Mortgagee that all Lease Events of Default have
been cured or waived, make any and all such payments directly to Assignee (or,
so long as the Trust Indenture has not been discharged and Manufacturer or
Engine Manufacturer, as the case may be, shall have received notice thereof, to
Mortgagee). Any amounts received by Assignee pursuant to the immediately
preceding sentence shall, to the extent not theretofore applied in satisfaction
of sums owing to Assignee in accordance with the terms of the Operative
Agreements, be held and invested as provided in Section 4.4 of the Lease.
Section 10. ASSIGNEE'S AGREEMENT. Assignee agrees that, during the
Term, except as otherwise contemplated by Section 2 hereof and unless a Lease
Event of Default shall have occurred and be continuing, it will not enter into
any agreement that would amend, modify, supplement, rescind, cancel or terminate
the Purchase Agreement or the General Terms Agreement in respect of the Aircraft
or the Engines without the prior written consent of Assignor.
Section 11. EXECUTION; COUNTERPARTS, ETC. This Assignment is executed
by Assignor and Assignee concurrently with the execution and delivery of the
Lease. This Assignment may be executed by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original,
and all of which counterparts, taken together, shall constitute one and the same
instrument. The section headings in this Assignment are for convenience of
reference only and shall not modify, define, expand or limit any of the terms or
provisions hereof.
Section 12. CONFIDENTIAL TREATMENT. Assignee agrees that it will not
disclose to any third party the terms of the Purchase Agreement or the General
Terms Agreement except (i) as required by applicable law or governmental
regulation, (ii) in connection with the financing of the Aircraft, (iii) as
permitted under Section 8 of the Participation Agreement as if this Assignment
were specifically referred to therein, (iv) with the consent of Assignor,
Manufacturer and the Engine Manufacturer (as the case may be) or (v) in
connection with any sale or lease of the Aircraft. Assignee further agrees that
in connection with any disclosures made as contemplated by clauses (ii) (except
in connection with the financing contemplated by the Participation Agreement),
(iii) (except as to clauses (C) and (E) and (F) of Section 8 of the
Participation Agreement) or (iv) of the preceding sentence, Assignee shall
instruct the entity to which such information is disclosed to treat such
information as confidential on the terms set forth in this Section 12.
Section 13. ASSIGNMENT TO MORTGAGEE. The right, title and interest of
Assignee in and to this Assignment has been assigned to and is subject to a
security interest in favor of Wilmington Trust Company, as Mortgagee under the
Trust Indenture, for the benefit of the Noteholders and the Indenture
Indemnitees referred to in such Trust Indenture, all to the extent provided in
such Trust Indenture. Assignor hereby consents to such assignment and to the
creation of such security interest in and to this Assignment.
SECTION 14. GOVERNING LAW. THIS ASSIGNMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAWS.
[This space intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Purchase Agreement and
Engine Warranties Assignment ___ to be duly executed as of the day and year
first above written.
CONTINENTAL AIRLINES, INC.
By___________________________________
Name:
Title:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION,
not in its individual capacity
but solely as Owner Trustee
By___________________________________
Name:
Title:
The undersigned, as Mortgagee for the benefit of the Note Holders and
Indenture Indemnitees and as assignee of, and holder of a security interest in,
the estate, right, title and interest of Assignee in and to the foregoing
Assignment pursuant to the terms of the Trust Indenture agrees to the terms of
the foregoing Assignment and agrees that its rights and remedies under the Trust
Indenture shall be subject to the terms and conditions of the foregoing
Assignment, including Sections 4 and 5 therein, and of the Purchase Agreement
and the General Terms Agreement.
WILMINGTON TRUST COMPANY,
as Mortgagee
By______________________________
Name:
Title:
MANUFACTURER CONSENT AND AGREEMENT ___
The undersigned, THE BOEING COMPANY, a Delaware corporation, hereby
acknowledges notice of and consents to all of the terms of Purchase Agreement
and Engine Warranties Assignment ___ (herein called the "Assignment") (the
defined terms therein being hereinafter used with the same meanings unless
otherwise defined herein) between Continental Airlines, Inc., as Assignor, and
First Security Bank, National Association, as Owner Trustee, as Assignee, and
hereby confirms to Assignee that: (i) all representations, warranties,
indemnities and agreements of Manufacturer under the Purchase Agreement with
respect to the Aircraft shall inure to the benefit of Assignee to the same
extent as if originally named the "Customer" therein, except as provided by
Section 2 of the Assignment; (ii) Assignee shall not be liable for any of the
obligations or duties of Assignor under the Purchase Agreement, nor shall the
Assignment give rise to any duties or obligations whatsoever on the part of
Assignee owing to Manufacturer, except as provided in Section 4 of the
Assignment; (iii) Manufacturer consents to the grant of a security interest in
the Aircraft pursuant to the Trust Indenture by Assignee and agrees that the
Assignment constitutes an agreement by Assignee as required by Article 9.2 of
the AGTA; and (iv) Manufacturer will continue to pay to Assignor or its order
all payments that Manufacturer may be required to make in respect of the
Aircraft under the Purchase Agreement unless and until Manufacturer shall have
received written notice from Assignee or Mortgagee addressed to its Vice -
President - Contracts at X.X. Xxx 0000, Mail Code 75-38, Xxxxxxx, Xxxxxxxxxx
00000-0000, if by mail, or to (000) 000-0000, if by facsimile, that a Lease
Event of Default has occurred and is continuing, whereupon Manufacturer will not
be required to make further inquiry into the content of such notice and will
make any and all payments that it may be required thereafter to make in respect
of the Aircraft under the Purchase Agreement and the right to receive that has
been assigned under the Assignment, directly to Assignee at its address at 00
Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attn: Corporate Trust Department
(or, so long as the Trust Indenture has not been discharged, directly to
Mortgagee at its address at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attn: Corporate Trust Administration), unless and
until Manufacturer shall have received notice in writing from Assignee or
Mortgagee that no Lease Event of Default is continuing, whereupon Manufacturer
shall make all payments that Manufacturer may be required to make in respect of
the Aircraft under the Purchase Agreement to Assignor or its order, as
aforesaid.
Manufacturer hereby represents and warrants that: (i) Manufacturer is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware; (ii) the making and performance of the Purchase
Agreement and this Manufacturer Consent and Agreement ___ have been duly
authorized by all necessary corporate action on the part of Manufacturer, do not
require any stockholder approval and do not contravene Manufacturer's
Certificate of Incorporation or by-laws or any indenture, credit agreement or
other contractual agreement to which Manufacturer is a party or by which it is
bound and the making of the Purchase Agreement and this Manufacturer Consent and
Agreement ___, the giving of the warranty obligations thereunder, do not, as to
such making or giving, contravene any law binding on Manufacturer; and (iii) the
Purchase Agreement constituted, as of the date thereof and at all times
thereafter to and including the date of this Manufacturer Consent and Agreement
___, and this Manufacturer Consent and Agreement ___ constitutes, binding
obligations of Manufacturer enforceable against Manufacturer in accordance with
their respective terms subject to (A) the limitations of applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights of
creditors generally and (B) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law), which
principles do not make the remedies available at law or in equity with respect
to the Purchase Agreement and this Manufacturer Consent and Agreement ___
inadequate for the practical realization of the benefits intended to be provided
thereby. It is understood that the execution of this Manufacturer Consent and
Agreement ___ by Manufacturer is subject to the condition that, concurrently
with the delivery of the Aircraft to Assignee, Assignee shall lease the Aircraft
to Assignor under the Lease.
THIS MANUFACTURER CONSENT AND AGREEMENT ___ SHALL IN ALL RESPECTS BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF WASHINGTON, INCLUDING ALL MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT REFERENCE TO CONFLICTS OF
LAWS PRINCIPLES.
Dated as of _________ __, ____.
THE BOEING COMPANY
By__________________________________
Name:
Title:
MSN: ______
ENGINE MANUFACTURER CONSENT AND AGREEMENT ___
The undersigned, GENERAL ELECTRIC COMPANY, a New York corporation,
hereby acknowledges notice of and consents to all of the terms of Purchase
Agreement and Engine Warranties Assignment ___ (herein called the "Assignment")
(the defined terms therein being hereinafter used with the same meanings unless
otherwise defined herein) between Continental Airlines, Inc., as Assignor, and
First Security Bank, National Association, as Owner Trustee, as Assignee. Under
the General Terms Agreement, Engine Manufacturer has agreed to support certain
GE90-90B engines and spare parts therefor purchased by Assignor from Engine
Manufacturer, as installed on certain Boeing Model 777 aircraft. Engine
Manufacturer hereby confirms to Assignor and Assignee that the Engine
Warranties, as and to the extent that such relate to the Engines, shall inure to
the benefit of Assignee (and, so long as the Trust Indenture has not been
discharged, Mortgagee) to the same extent as if originally named "Airline" in
the General Terms Agreement and to the benefit of Assignor (but only to the
extent provided for in the Assignment) in each case subject to the terms and
conditions of the Assignment; PROVIDED, that Engine Manufacturer shall not owe
any liability or obligation under the Engine Warranties more than once in total.
Engine Manufacturer represents and warrants that:
1. It is a corporation duly organized and validly existing in good
standing under the laws of the State of Delaware;
2. The making and performance of this Engine Manufacturer Consent and
Agreement ___ in accordance with its terms have been duly authorized by all
necessary corporate action on the part of Engine Manufacturer, do not require
any stockholder approval and do not contravene its Certificate of Incorporation
or by-laws or any debenture, credit agreement or other contractual agreement to
which Engine Manufacturer is a party or by which it is bound or any law binding
on Engine Manufacturer;
3. The making and performance of the Engine Warranties in accordance
with their terms have been duly authorized by all necessary corporate action on
the part of Engine Manufacturer, do not require any stockholder approval and do
not contravene Engine Manufacturer's Certificate of Incorporation or by-laws or
any debenture, credit agreement or other contractual agreement to which Engine
Manufacturer is a party or by which it is bound, and do not, as to the making
thereof, contravene any law binding on Engine Manufacturer, and to the best of
its knowledge, do not as to the performance thereof contravene any law binding
on Engine Manufacturer; and
4. The Engine Warranties constituted as of the date on which they were
made and at all times thereafter to and including the date of this Engine
Manufacturer Consent and Agreement ___, and this Engine Manufacturer Consent and
Agreement ___ constitute binding obligations of Engine Manufacturer enforceable
against Engine Manufacturer in accordance with their respective terms subject
to:
(a) the limitations of applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights
of creditors generally; and
(b) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
[This space intentionally left blank.]
THIS ENGINE MANUFACTURER CONSENT AND AGREEMENT ___ SHALL IN ALL
RESPECTS BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES
OF CONFLICTS OF LAWS.
Dated as of _________ __, ____.
GENERAL ELECTRIC COMPANY
By_________________________________
Name:
Title:
EXHIBIT A-5 to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF LEASED AIRCRAFT TRUST AGREEMENT
[FILED SEPARATELY]
EXHIBIT A-6 to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF SPECIAL INDENTURE
[FILED SEPARATELY]
EXHIBIT B to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF DELIVERY NOTICE
EXHIBIT B
DELIVERY NOTICE
---------------
Dated as of [__________]
To each of the addressees listed
in Schedule A hereto
RE: DELIVERY NOTICE IN ACCORDANCE WITH NOTE PURCHASE AGREEMENT
REFERRED TO BELOW
Gentlemen:
Reference is made to the Note Purchase Agreement, dated as of
[_____________] among Continental Airlines, Inc. (the "COMPANY"), Wilmington
Trust Company, as Pass Through Trustee under each of the Pass Through Trust
Agreements (as defined therein) (the "PASS THROUGH TRUSTEE"), Wilmington Trust
Company, as Subordination Agent (the "SUBORDINATION AGENT"), First Security
Bank, National Association, as Escrow Agent (the "ESCROW AGENT") and Wilmington
Trust Company, as Paying Agent (the "PAYING AGENT") (as in effect from time to
time, the "NOTE PURCHASE AGREEMENT"). Unless otherwise defined herein,
capitalized terms used herein shall have the meanings set forth in the Note
Purchase Agreement or, to the extent not defined therein, the Intercreditor
Agreement.
Pursuant to Sections 1(b) of the Note Purchase Agreement, the
undersigned hereby notifies you, in respect of the Boeing [_______] aircraft
with manufacturer's serial number [______] (the "AIRCRAFT"), of the following:
(1) The Company has elected to treat the Aircraft as [a Leased Aircraft] [an
Owned Aircraft];
(2) The Scheduled Delivery Date of the Aircraft is [_________];
(3) The Funding Date for the Aircraft shall be [__________]; and
(4) The aggregate amount of each series of Equipment Notes to be issued,
and purchased by the respective Pass Through Trustees referred to
below (each, an "APPLICABLE PASS THROUGH TRUSTEE"), on the Funding
Date, in connection with the financing of such Aircraft is as
follows:
----------
Eliminate each applicable clause if the specified Pass Through Trustee will
not purchase Equipment Notes for the Aircraft.
(a) the Class A-1 Trustee shall purchase Series A-1 Equipment Notes in
the amount of $[__________];
(b) The Class A-2 Trustee shall purchase Series A-2 Equipment Notes in
the amount of $[__________];
(c) the Class B Trustee shall purchase Series B Equipment Notes in the
amount of $[__________];
(d) the Class C-1 Trustee shall purchase Series C-1 Equipment Notes in
the amount of $[__________]; and
(e) The Class C-2 Trustee shall purchase Series C-2 Equipment Notes in
the amount of $[__________].
The Company hereby instructs the Class A-1 Trustee to (i) execute a
Withdrawal Certificate in the form of Annex A hereto dated as of [__________]
and attach thereto a Notice of Purchase Withdrawal dated such date completed as
set forth on Exhibit A-1 hereto and (ii) deliver such Withdrawal Certificate and
Notice of Purchase Withdrawal to the applicable Escrow Agent.
The Company hereby instructs the Class A-2 Trustee to (i) execute a
Withdrawal Certificate in the form of Annex A hereto dated as of [__________]
and attach thereto a Notice of Purchase Withdrawal dated such date completed as
set forth on Exhibit A-2 hereto and (ii) deliver such Withdrawal Certificate and
Notice of Purchase Withdrawal to the applicable Escrow Agent.
The Company hereby instructs the Class B Trustee to (i) execute a
Withdrawal Certificate in the form of Annex A hereto dated as of [__________]
and attach thereto a Notice of Purchase Withdrawal dated such date completed as
set forth on Exhibit B hereto and (ii) deliver such Withdrawal Certificate and
Notice of Purchase Withdrawal to the applicable Escrow Agent.
The Company hereby instructs the Class C-1 Trustee to (i) execute a
Withdrawal Certificate in the form of Annex A hereto dated as of [__________]
and attach thereto a Notice of Purchase Withdrawal dated such date completed as
set forth on Exhibit C-1 hereto and (ii) deliver such Withdrawal Certificate and
Notice of Purchase Withdrawal to the applicable Escrow Agent.
----------
Eliminate if the specified Pass Through Trustee will not purchase Equipment
Notes for the Aircraft.
Eliminate if the specified Pass Through Trustee will not purchase Equipment
Notes for the Aircraft.
Eliminate if the specified Pass Through Trustee will not purchase Equipment
Notes for the Aircraft.
Eliminate if the specified Pass Through Trustee will not purchase Equipment
Notes for the Aircraft.
The Company hereby instructs the Class C-2 Trustee to (i) execute a
Withdrawal Certificate in the form of Annex A hereto dated as of [__________]
and attach thereto a Notice of Purchase Withdrawal dated such date completed as
set forth on Exhibit C-2 hereto and (ii) deliver such Withdrawal Certificate and
Notice of Purchase Withdrawal to the applicable Escrow Agent.
The Company hereby instructs each Applicable Pass Through Trustee to
(i) purchase Equipment Notes of a series and in an amount set forth opposite
such Pass Through Trustee in clause (4) above with a portion of the proceeds of
the withdrawals of Deposits referred to in the applicable Notice of Purchase
Withdrawal referred to above and (ii) re-deposit with the Depositary the excess,
if any, of the amount so withdrawn OVER the purchase price of such Equipment
Notes.
The Company hereby instructs each Applicable Pass Through Trustee to
(a) enter into the Participation Agreement [____] dated as of [__________] among
the Company, as Lessee, Wilmington Trust Company, as Mortgagee and Loan
Participant, First Security Bank, National Association, as Owner Trustee, and
[__________], as Owner Participant, (b) perform its obligations thereunder and
(c) deliver such certificates, documents and legal opinions relating to such
Pass Through Trustee as required thereby. [The Company confirms that the Special
Indenture shall be utilized in lieu of the Leased Aircraft Indenture.]
The Company hereby certifies that the Owner Participant with respect
to the Aircraft (A) is not an Affiliate of the Company and (B) based on the
representations of such Owner Participant, is either a Qualified Owner
Participant or a person whose obligations under the Owner Participant Agreements
(as defined in the Participation Agreement) are guaranteed by a Qualified Owner
Participant. Yours faithfully,
Continental Airlines, Inc.
By:_____________________
Name:
Title:
----------
Eliminate if the specified Pass Through Trustee will not purchase Equipment
Notes for the Aircraft.
SCHEDULE A
Wilmington Trust Company, as
Pass Through Trustee, Subordination
Agent and Mortgagee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
First Security Bank, National Association,
as Escrow Agent
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Corporate Trust Department
Facsimile: (000) 000-0000
Standard & Poor's Ratings Service
00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
Annex A
WITHDRAWAL CERTIFICATE
(Class ___)
First Security Bank, National Association,
as Escrow Agent
Ladies and Gentlemen:
Reference is made to the Escrow and Paying Agent Agreement, dated as
of [_____________] (the "Agreement"). We hereby certify to you that the
conditions to the obligations of the undersigned to execute a Participation
Agreement pursuant to the Note Purchase Agreement have been satisfied. Pursuant
to Section 1.02(c) of the Agreement, please execute the attached Notice of
Withdrawal and immediately transmit by facsimile to the Depositary, at (212)
325-8319.
Capitalized terms used herein but not defined herein shall have the
meanings set forth in the Agreement.
Very truly yours,
WILMINGTON TRUST COMPANY
not in its individual capacity by solely as Pass
Through Trustee
By: _______________________________________________
Name:
Title:
Dated: As of [__________]
Exhibit A-1
NOTICE OF PURCHASE WITHDRAWAL
CREDIT SUISSE FIRST BOSTON
New York Branch
00 Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx Xxxxxx and
Xxxxxxxx Xxxx
Telecopier: (000) 000-0000
Gentlemen:
Reference is made to the Deposit Agreement (Class A-1) dated as of
[_____________] (the "DEPOSIT Agreement") between First Security Bank, National
Association, as Escrow Agent, and Credit Suisse First Boston, New York Branch,
as Depositary (the "DEPOSITARY").
In accordance with Section 2.3(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the Deposit,
$[_______], Account No. [____].
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposit to [___________________] on [__________], upon the telephonic
request of a representative of the Pass Through Trustee.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
as Escrow Agent
By ________________________________
Name:
Title:
Dated: As of [__________]
Exhibit A-2
NOTICE OF PURCHASE WITHDRAWAL
CREDIT SUISSE FIRST BOSTON
New York Branch
00 Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx Xxxxxx and
Xxxxxxxx Xxxx
Telecopier: (000) 000-0000
Gentlemen:
Reference is made to the Deposit Agreement (Class A-2) dated as of
[_____________] (the "DEPOSIT Agreement") between First Security Bank, National
Association, as Escrow Agent, and Credit Suisse First Boston, New York Branch,
as Depositary (the "DEPOSITARY").
In accordance with Section 2.3(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the Deposit,
$[_______], Account No. [____].
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposit to [___________________] on [__________], upon the telephonic
request of a representative of the Pass Through Trustee.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
as Escrow Agent
By _______________________________
Name:
Title:
Dated: As of [__________]
Exhibit B
NOTICE OF PURCHASE WITHDRAWAL
CREDIT SUISSE FIRST BOSTON
New York Branch
00 Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx Xxxxxx and
Xxxxxxxx Xxxx
Telecopier: (000) 000-0000
Gentlemen:
Reference is made to the Deposit Agreement (Class B) dated as of
[_____________] (the "DEPOSIT AGREEMENT") between First Security Bank, National
Association, as Escrow Agent, and Credit Suisse First Boston, New York Branch,
as Depositary (the "DEPOSITARY").
In accordance with Section 2.3(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the Deposit,
$[_______], Account No. [_____].
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposit to [________________] on [__________], upon the telephonic request
of a representative of the Pass Through Trustee.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
as Escrow Agent
By ____________________________________
Name:
Title:
Dated: As of [__________]
Exhibit C-1
NOTICE OF PURCHASE WITHDRAWAL
CREDIT SUISSE FIRST BOSTON
New York Branch
00 Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx Xxxxxx and
Xxxxxxxx Xxxx
Telecopier: (000) 000-0000
Gentlemen:
Reference is made to (i) the Deposit Agreement (Class C-1) dated as of
[_____________] (the "DEPOSIT AGREEMENT") between First Security Bank, National
Association, as Escrow Agent, and Credit Suisse First Boston, New York Branch,
as Depositary (the "DEPOSITARY").
In accordance with Section 2.3(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the Deposit,
$[________], Account No. [____].
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposit to [______________] on [__________], upon the telephonic request of
a representative of the Pass Through Trustee.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
as Escrow Agent
By _________________________________
Name:
Title:
Dated: As of [__________]
Exhibit C-2
NOTICE OF PURCHASE WITHDRAWAL
CREDIT SUISSE FIRST BOSTON
New York Branch
00 Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx Xxxxxx and
Xxxxxxxx Xxxx
Telecopier: (000) 000-0000
Gentlemen:
Reference is made to (i) the Deposit Agreement (Class C-2) dated as of
[_____________] (the "DEPOSIT AGREEMENT") between First Security Bank, National
Association, as Escrow Agent, and Credit Suisse First Boston, New York Branch,
as Depositary (the "DEPOSITARY").
In accordance with Section 2.3(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the Deposit,
$[________], Account No. [____].
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposit to [______________] on [__________], upon the telephonic request of
a representative of the Pass Through Trustee.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
as Escrow Agent
By __________________________________
Name:
Title:
Dated: As of [__________]
EXHIBIT C-1 to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF OWNED AIRCRAFT PARTICIPATION AGREEMENT
[FILED SEPARATELY]
EXHIBIT C-2 to
NOTE PURCHASE AGREEMENT
-----------------------
FORM OF OWNED AIRCRAFT INDENTURE
[FILED SEPARATELY]
EXHIBIT D to
NOTE PURCHASE AGREEMENT
-----------------------
SECTION 16. OWNER PARTICIPANT'S RIGHT TO RESTRUCTURE
16.1 GENERAL RIGHT TO RESTRUCTURE
Lessee, Loan Participant and each Note Holder agree that after the
Delivery Date and subject to the limitations of Section 16.2, the original Owner
Participant (or any transferee Owner Participant that is an Affiliate of the
original Owner Participant) shall have the right to restructure the Transactions
using (a) a "cross-border lease," a tax lease or a head-lease/sublease structure
and (b) any other type of transaction, which may involve special structural
arrangements, as such Owner Participant may elect (any such structure described
above, a "Special Structure"). Any Special Structure may result in additional
persons participating in the Transactions, which persons shall agree to
provisions comparable to Sections 7.6.4(a) and 7.6.13. Subject to the provisions
of Sections 16.2 and 16.3, Lessee, Loan Participant and each Note Holder agree
to cooperate in the implementation of any such restructuring and take such
action as may reasonably be requested by the original Owner Participant to
accomplish such restructuring, including taking such actions as may be
reasonable or customary in the type of Special Structure selected. In connection
with any proposed Special Structure, Owner Participant shall provide all
information reasonably requested by Lessee, Loan Participant or any Note Holder
with respect thereto. The original Owner Participant shall be entitled to retain
all of the benefits of any such transaction.
16.2 LIMITATIONS ON RESTRUCTURING PROVISIONS; ADDITIONAL TERMS
16.2.1 LESSEE
(a) Notwithstanding Section 16.1 or 16.2.1(b), in no event shall any
such Special Structure (a) change the terms and conditions of Lessee's rights
and obligations, from those which Lessee would otherwise possess or be subject
to in the absence of any such Special Structure, in a manner which is materially
adverse to Lessee, (b) expose Lessee to any additional risks (including overall
tax risks) beyond those to which Lessee would be exposed in the absence of any
such Special Structure unless Lessee shall have been indemnified against such
additional risks by the original Owner Participant, or other participants in
such transaction (so long as such original Owner Participant or other
participants shall, as to their creditworthiness at the time any such indemnity
is given, be reasonably acceptable to Lessee) in a manner reasonably
satisfactory to Lessee. In no event shall Lessee be required to provide an
indemnity with respect to any foreign tax benefit of a Special Structure or to
indemnify against the failure of a head-lease not to constitute a true lease for
U.S. federal income tax purposes.
(b) In any Special Structure that may be entered into pursuant to this
Section 16, the Termination Values under the Lease (as the same may be
restructured) shall not be affected by the termination values under any
head-lease, except that any prepayment premiums and any funding or swap breakage
costs under such head-lease or similar arrangement will be added in calculating
the Termination Values and Stipulated Loss Values under the Lease (as the same
may be restructured). Further, upon implementation of any Special Structure, the
Stipulated Loss Values payable by Lessee under the Lease (as the same may be
restructured) shall in no event be less than the stipulated loss values payable
under the applicable head-lease or similar arrangement.
16.2.2 LOAN PARTICIPANT AND CERTIFICATE HOLDERS
Notwithstanding Section 16.1, any such Special Structure shall not,
and prior to the exercise of its rights thereunder, the Owner Participant shall
deliver an officer's certificate to the Pass Through Trustee that provides that
any such Special Structure shall not, (a) change the terms and conditions of
Loan Participant's, any Note Holder's or any Pass Through Indemnitee's rights
and obligations under the Operative Agreements or rights and obligations of
holders of Pass Through Certificates, from those which Loan Participant, Note
Holders, Pass Through Indemnitees and such Pass Through Certificate holders
would otherwise possess or be subject to in the absence of such Special
Structure (including, without limitation, the amount and timing of any payment
of principal, interest and Make-Whole Amount under the Equipment Notes, the
relative rights of the Note Holders with respect to such payments and such
holder of Pass Through Certificates and the priority of Mortgagee's Lien on the
Trust Indenture Estate under the Trust Indenture) or (b) expose Loan
Participant, any such Note Holder, any such Pass Through Indemnitee or any such
holder of Pass Through Certificates to any additional risks beyond those to
which Loan Participant, such Note Holder, Pass Through Indemnitee or such holder
of such Pass Through Certificates would be exposed in the absence of such
Special Structure. In addition, in no event shall any Special Structure be
permitted unless a written confirmation from the Rating Agencies (as defined in
the Note Purchase Agreement) is obtained prior to the implementation of such
Special Structure to the effect that such Special Structure will not adversely
affect the ratings of the Pass Through Certificates.
16.3 TRANSACTION EXPENSES
Whether or not any proposed restructuring transaction under this
Section 16 is consummated, the original Owner Participant shall pay (or cause to
be paid) the reasonable costs and expenses incurred by all parties in connection
therewith; PROVIDED, that, only in connection with a consummated transaction
(unless Lessee shall have, by failing to act in good faith, caused a transaction
not to be consummated), Lessee shall pay or reimburse such original Owner
Participant for the original Owner Participant's reasonable estimate of the
costs and expenses that would have been incurred by all parties if the
Transactions had been restructured as a head-lease/sublease transaction in which
the original Owner Participant, or an Affiliate or designee thereof, were the
head-lessee/sublessor and Lessee were the sublessee.
EXHIBIT E to
NOTE PURCHASE AGREEMENT
-----------------------
Section 6.2 may be amended to delete Section 6.2.9 in its entirety.
