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NOTE PURCHASE AGREEMENT
Dated as of July 31, 2001
Among
CONTINENTAL AIRLINES, INC.,
WILMINGTON TRUST COMPANY,
as Pass Through Trustee under the
Pass Through Trust Agreement
WILMINGTON TRUST COMPANY,
as Subordination Agent under each
of the Intercreditor Agreements
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as Escrow Agent
and
WILMINGTON TRUST COMPANY,
as Paying Agent
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INDEX TO NOTE PURCHASE AGREEMENT
Page
SECTION 1A. Sale of Series D Equipment
Notes on the Issuance Date.........................................4
SECTION 1. Financing of New Aircraft..........................................5
SECTION 2. Conditions Precedent...............................................9
SECTION 3. Representations and Warranties.....................................9
SECTION 4. Covenants.........................................................15
SECTION 5. Notices...........................................................17
SECTION 6. Expenses..........................................................18
SECTION 7. Further Assurances................................................18
SECTION 8. Miscellaneous.....................................................18
SECTION 9. Governing Law.....................................................19
Schedules
Schedule I Owned Aircraft
Schedule II Eligible Aircraft and Scheduled Delivery Months
Schedule III Original Intercreditor Agreements
Schedule IV Mandatory Document Terms
Schedule V Mandatory Economic Terms
ANNEX
Annex A Definitions
EXHIBITS
Exhibit A-1 Form of PA Amendment
Exhibit A-2 Form of Indenture Amendment
Exhibit B Form of Delivery Notice
Exhibit C Form of Opinion of Xxxxxx Xxxxxxx & Xxxx LLP
Exhibit D Form of Opinion of the Continental Airlines Legal Department
Exhibit E Form of Opinion of Xxxxxxxx, Xxxxxx & Finger
Exhibit F Form of Opinion of Xxxxx Xxxxx & Xxxxxx
Exhibit G Additional Subordination Provisions for Series D Equipment Notes
NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT, dated as of July 31, 2001, among
(i)CONTINENTAL AIRLINES, INC., a Delaware corporation (the "COMPANY"),
(ii)WILMINGTON TRUST COMPANY ("WTC"), a Delaware banking corporation, not in its
individual capacity except as otherwise expressly provided herein, but solely as
trustee (in such capacity together with its successors in such capacity, the
"PASS THROUGH TRUSTEE") under the Pass Through Trust Agreement (as defined
below), (iii) WILMINGTON TRUST COMPANY, a Delaware banking corporation, as
subordination agent and trustee (in such capacity together with its successors
in such capacity, the "SUBORDINATION AGENT") under each of the Intercreditor
Agreements (as defined below), (iv) XXXXX FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION, (formerly known as First Security Bank, National Association)
("WFB") a national banking association, as Escrow Agent (in such capacity
together with its successors in such capacity, the "ESCROW AGENT"), under the
Escrow and Paying Agent Agreement (as defined below) and (v) WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as Paying Agent (in such capacity
together with its successors in such capacity, the "PAYING AGENT") under the
Escrow and Paying Agent Agreement.
W I T N E S S E T H:
WHEREAS, capitalized terms used but not defined herein shall have
the meanings ascribed to such terms in Annex A hereto and each reference therein
to any agreement shall mean such agreement as at any time and from time to time
amended including, without limitation, each amendment to the Financing
Agreements contemplated hereby;
WHEREAS, under the terms of seven series of Continental Airlines
pass through certificates previously issued, the Series 1997-4, 1998-1, 1998-3,
1999-1, 1999-2, 2000-1 and 2000-2 (the "PRIOR SERIES"), the Company is entitled
to sell Series D Equipment Notes secured by aircraft financed under each Prior
Series;
WHEREAS, the Company has purchased the aircraft listed on Schedule I
hereto (the "OWNED AIRCRAFT") prior to the date of this Agreement utilizing the
proceeds of the sale of secured equipment notes acquired by the pass through
trustees under the Prior Series;
WHEREAS, the Company has obtained commitments from the Manufacturer
pursuant to the Aircraft Purchase Agreement for the delivery of the sixteen
aircraft listed in Schedule II hereto (together with any aircraft substituted
therefor in accordance with the Aircraft Purchase Agreement prior to the
delivery thereof, the "ELIGIBLE AIRCRAFT"), and the Company expects to purchase
after the date of this Agreement utilizing the proceeds of the sale of secured
equipment notes to be acquired by the pass through trustees under the 2000-2
Note Purchase Agreement and of the Series D Equipment Notes purchased pursuant
to this Agreement two of the ten Boeing 737-824 aircraft and two of the six
Boeing 737-924 Aircraft included in the Eligible Aircraft (such aircraft to be
financed hereunder, the "NEW AIRCRAFT");
WHEREAS, pursuant to the Basic Pass Through Trust Agreement and the
Trust Supplement No. 2001-2D-O (such Agreement, as so supplemented, the "PASS
THROUGH TRUST AGREEMENT"), a grantor trust (the "PASS THROUGH TRUST") has been
created to facilitate certain of the transactions contemplated hereby,
including, without limitation, the issuance and sale of Class D pass through
certificates pursuant thereto (collectively, the "CERTIFICATES");
WHEREAS, in connection with each Prior Series, the Subordination
Agent, the pass through trustees for such Prior Series and the liquidity
providers for such Prior Series entered into an Intercreditor Agreement for such
Prior Series, and such Intercreditor Agreements, which are listed on Schedule
III hereto (the "ORIGINAL INTERCREDITOR AGREEMENTS"), will be amended pursuant
to this Agreement to add the Pass Through Trustee as a party thereto and to
provide for the subordination of the Certificates with respect to Series D
Equipment Notes relating to the applicable Prior Series (as so amended, the
"INTERCREDITOR AGREEMENTS");
WHEREAS, the Company has entered into the Underwriting Agreement,
dated as of July 13, 2001 (the "UNDERWRITING AGREEMENT") with the underwriters
named therein (the "UNDERWRITERS") which provides that on the date of this
Agreement the Company will cause the Pass Through Trustee to issue and sell the
Certificates to the Underwriters;
WHEREAS, as required by the Note Purchase Agreement under each Prior
Series and the Underwriting Agreement, the Company has obtained confirmation
from the Rating Agencies that the terms of the Certificates will not result in a
withdrawal, suspension or downgrading of the ratings of the pass through
certificates of any Prior Series;
WHEREAS, pursuant to terms of the Pass Through Trust Agreement and
this Agreement, on the date of this Agreement the Pass Through Trustee will
purchase, and the Company will issue and sell, the Series D Equipment Notes in
the respective principal amounts listed on Schedule I hereto, which shall be
secured by, among other things, the related Owned Aircraft set forth on such
Schedule;
WHEREAS, (i) the Escrow Agent and the Depositary have entered into
the Deposit Agreement (the "DEPOSIT AGREEMENT") whereby the Escrow Agent agreed
to direct the Underwriters to make the deposits referred to therein on the
Issuance Date in the amount of the proceeds from the sale of the Certificates
not used to purchase Series D Equipment Notes on the Issuance Date (the "INITIAL
DEPOSITS") and to permit the Pass Through Trustee to make additional deposits
from time to time thereafter (the Initial Deposits together with such additional
deposits are collectively referred to as the "DEPOSITS") and (ii) the Pass
Through Trustee, Underwriters, Paying Agent and Escrow Agent have entered into
the Escrow and Paying Agent Agreement (the "ESCROW AND PAYING AGENT AGREEMENT")
whereby, among other things, (a) the Underwriters agreed to deliver an amount
equal to the amount of the Initial Deposits to the Depositary on behalf of the
Escrow Agent and (b) the Escrow Agent, upon the Depositary receiving such
amount, agreed to deliver escrow receipts to be affixed to each Certificate;
WHEREAS, prior to the financing of each New Aircraft, the Company
will give to the Pass Through Trustee a Delivery Notice (as defined below);
WHEREAS, upon receipt of a Delivery Notice with respect to a New
Aircraft, subject to the terms and conditions of this Agreement, the Pass
Through Trustee will enter into the Financing Agreements relating to such New
Aircraft; and
WHEREAS, upon the financing of each New Aircraft, the Pass Through
Trustee will fund its purchase of Series D Equipment Notes with the proceeds of
one or more Deposits withdrawn by the Escrow Agent under the Deposit 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 1A. SALE OF SERIES D EQUIPMENT NOTES ON THE ISSUANCE DATE.
(a) Subject to the satisfaction of the conditions set forth in Section 1A(b), at
the closing under the Underwriting Agreement, simultaneously with the purchase
and sale of the Certificates thereunder, the applicable parties hereto shall
take the following action:
(i) The Company and the Subordination Agent under each Original
Intercreditor Agreement shall enter into the Intercreditor Agreement Amendment
applicable to such Original Intercreditor Agreement;
(ii) The Company, the Pass Through Trustee, the applicable
Subordination Agent and the applicable Loan Trustee shall enter into a PA
Amendment with respect to each Owned Aircraft Participation Agreement;
(iii) The Company and the applicable Loan Trustee shall enter into
an Indenture Amendment with respect to each Owned Aircraft Indenture;
(iv) The Company shall issue pursuant to each Owned Aircraft
Indenture, as amended by the Indenture Amendment, a Series D Equipment Note in
the principal amount set forth on Schedule I hereto corresponding to such Owned
Aircraft Indenture and shall deliver each such Series D Equipment Note, against
receipt of the payment referred to in Section 1 A(a)(v), to the Subordination
Agent for the Prior Series relating to such Owned Aircraft Indenture, as set
forth on Schedule I hereto, to be held for the benefit of the Pass Through
Trustee in accordance with the applicable Intercreditor Agreement; and
(v) The Pass Through Trustee shall pay to the Company $194,004,524,
by wire transfer of immediately available funds.
(b) The obligations of the Pass Through Trustee, the Subordination
Agent and the Loan Trustees to take the actions set forth in Section 1A(a) are
subject to the fulfillment of the following conditions precedent:
(i) The Pass Through Trustee shall have received the following
documents:
(1) the broker's report and insurance certificates described in
Section E of Annex B of each Owned Aircraft Indenture with respect to
each Owned Aircraft;
(2) the following opinions of counsel, in each case dated the
Issuance Date:
(A) an opinion of Xxxxxx Xxxxxxx & Xxxx LLP, special counsel to
the Company, substantially in the form of Exhibit C;
(B) an opinion of the Company's Legal Department, substantially
in the form of Exhibit D;
(C) an opinion of Xxxxxxxx, Xxxxxx & Finger, special counsel to
the Loan Trustees, substantially in the form of Exhibit E;
and
(D) an opinion of Xxxxx Xxxxx & Xxxxxx, special counsel in
Oklahoma City, Oklahoma, substantially in the form of
Exhibit F.
(ii) The Loan Trustee with respect to each Owned Aircraft Indenture
shall be entitled to the benefits of Section 1110 (as currently in effect) with
respect to the right to take possession of the Owned Aircraft secured under such
Owned Aircraft Indenture and to enforce any of its other rights or remedies as
provided in the Owned Aircraft Indenture in the event of a case under Chapter 11
of the Bankruptcy Code in which the Company is a debtor.
(iii) On the Issuance Date the Indenture Amendments shall have been
duly filed for recordation (or shall be in the process of being so duly filed
for recordation) with the FAA in accordance with the Act.
SECTION 1. FINANCING OF NEW AIRCRAFT. (a) The Company confirms that
it has entered into the Aircraft Purchase Agreement with the Manufacturer
pursuant to which the Company has agreed to purchase, and the Manufacturer has
agreed to deliver, the Eligible Aircraft in the months specified in Schedule II
hereto, all on and subject to terms and conditions specified in the Aircraft
Purchase Agreement. The Company agrees to finance each New Aircraft that is
financed under the 2000-2 Note Purchase Agreement as an "Owned Aircraft" (as
defined therein) in the manner provided herein, all on and subject to the terms
and conditions hereof and of the relevant Financing Agreements.
(b) In furtherance of the foregoing, the Company agrees to give the
parties hereto, the Depositary and each of the Rating Agencies not less than two
Business Days' prior notice substantially in the form of Exhibit B hereto (a
"DELIVERY NOTICE") of the scheduled delivery date under the Aircraft Purchase
Agreement (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 to be financed hereunder, which notice
shall:
(i) specify the Scheduled Delivery Date of such New Aircraft (which
shall be a Business Day before the Cut-off Date and, except as provided in
Section 1(f) hereof, the date (the "FUNDING DATE") on which the financing
therefor in the manner provided herein shall be consummated);
(ii) instruct the Pass Through Trustee to instruct the Escrow Agent
to provide a Notice of Purchase Withdrawal to the Depositary with respect to the
Series D Equipment Notes to be issued in connection with the financing of such
New Aircraft;
(iii) instruct the Pass Through Trustee to enter into the New
Participation Agreement included in the Financing Agreements with respect to
such New 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; and
(iv) specify the aggregate principal amount of the Series D
Equipment Notes to be issued, and purchased by the Pass Through Trustee, 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).
(c) Upon receipt of a Delivery Notice, the Pass Through Trustee
shall, and shall cause the Subordination Agent to, enter into and perform their
obligations under the New Participation Agreement specified in such Delivery
Notice, PROVIDED that such New Participation Agreement and the New Indenture to
be entered into pursuant to such New Participation Agreement shall be in the
forms thereof annexed to the 2000-2 Note Purchase Agreement (modified as
provided in the PA Amendment and the Indenture Amendment, respectively) in all
material respects and, if modified in any material respect, as to which Rating
Agency Confirmation shall have been obtained from each Rating Agency by the
Company (to be delivered by the Company to the Pass Through Trustees on or
before the relevant Funding Date, it being understood that if Rating Agency
Confirmation shall have been received with respect to any Financing Agreements
and such Financing Agreements are utilized for subsequent New Aircraft (or
Substitute Aircraft) without material modifications, no additional Rating Agency
Confirmation shall be required); PROVIDED, HOWEVER, that the relevant Financing
Agreements as executed and delivered shall not vary the Mandatory Economic Terms
and shall contain the Mandatory Document Terms. The Company shall pay the
reasonable costs and expenses of the Rating Agencies in connection with
obtaining any such Rating Agency Confirmation. With respect to each New
Aircraft, the Company shall cause WTC (or such other person that meets the
eligibility requirements to act as loan trustee under the Indenture) to execute
as Loan Trustee the Financing Agreements relating to such New 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 and a true and complete set of the closing documentation
(including legal opinions) delivered pursuant to Section 1A(b) of this
Agreement.
(d) [Intentionally omitted.]
(e) If after giving any Delivery Notice, there shall be a delay in
the delivery of the Eligible Aircraft referred to therein, or if on the
Scheduled Delivery Date of the Eligible Aircraft the financing thereof in the
manner contemplated hereby shall not be consummated for whatever reason, the
Company shall give the parties hereto prompt notice thereof. Concurrently with
the giving of such notice of postponement or subsequently, the Company may give
the parties hereto a substitute Delivery Notice specifying the date to which
delivery and related financing of such Eligible Aircraft or of another Eligible
Aircraft of the same type in lieu thereof shall have been re-scheduled (which
shall be a Business Day before the Cut-off Date on which the Escrow Agent shall
be entitled to withdraw one or more Deposits under the Deposit Agreement to
enable the Pass Through Trustee to fund its purchase of the Series D Equipment
Notes). Upon receipt of any such notice of postponement, the Pass Through
Trustee shall comply with its obligations under Section 5.01 of the Trust
Supplement and thereafter the financing of such Eligible Aircraft, as specified
in such substitute Delivery Notice, shall take place on the re-scheduled
Delivery Date therefor (all on and subject to the terms and conditions of the
relevant Financing Agreements) unless further postponed as provided herein.
(f) The Company shall have the right, anything in this Section 1 to
the contrary notwithstanding, to accept delivery of a New Aircraft under the
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 90 days after
the Delivery Date of such New Aircraft and no later than the Cut-off Date and
otherwise complying with the provisions of Section 1(b) hereof. All other terms
and conditions of this Note Purchase Agreement shall apply to the financing of
any such New Aircraft on the re-scheduled Funding Date therefor except (i) the
re-scheduled Funding Date shall be deemed the Delivery Date of such New Aircraft
for all purposes of this Section 1 and (ii) the related Financing Agreements
shall be amended to reflect the original delivery of such New Aircraft to the
Company.
(g) If the Scheduled Delivery Date for any Eligible Aircraft is
delayed (a) more than 30 days beyond the last day of the month set forth
opposite such Eligible Aircraft under the heading "Scheduled Delivery Months" in
Schedule II hereto or (b) beyond February 1, 2002, the Company may identify for
delivery a substitute aircraft therefor to be financed hereunder and under the
2000-2 Note Purchase Agreement and meeting the following conditions (a
"SUBSTITUTE AIRCRAFT"): (i) a Substitute Aircraft must be a Boeing 737-800 or
737-900 aircraft manufactured after the date of the 2000-2 Note Purchase
Agreement, (ii) one or more Substitute Aircraft of the same or different types
may be substituted for one or more Eligible Aircraft of the same or different
types so long as after giving effect thereto such substitution does not vary the
Mandatory Economic Terms and (iii) the Company shall be obligated to obtain
Rating Agency Confirmation in respect of the replacement of any Eligible
Aircraft by Substitute Aircraft. Upon the satisfaction of the conditions set
forth above with respect to a Substitute Aircraft, the Eligible Aircraft to be
replaced shall cease to be subject to this Agreement and all rights and
obligations of the parties hereto concerning such Eligible Aircraft shall cease,
and such Substitute Aircraft shall become and thereafter be subject to the terms
and conditions of this Agreement to the same extent as such Eligible Aircraft.
(h) The Company shall have no liability for the failure of the Pass
Through Trustee to purchase Series D Equipment Notes with respect to any New
Aircraft or Substitute Aircraft.
(i) 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 Series D Equipment Notes to the Pass Through Trustee in an aggregate
principal amount in excess of the amount of the Deposits then available for
withdrawal by the Escrow Agent under and in accordance with the provisions of
the Deposit Agreement.
SECTION 2. CONDITIONS PRECEDENT. The obligation of the Pass Through
Trustee to enter into, and to cause the Subordination Agent to enter into, any
New Participation Agreement as directed pursuant to a Delivery Notice and to
perform its obligations thereunder is subject to satisfaction of the following
conditions:
(a) no Triggering Event shall have occurred; and
(b) the Company shall have delivered a certificate to the Pass
Through Trustee stating that (i) such New Participation Agreement and the other
Financing Agreements to be entered into pursuant to such New Participation
Agreement do not vary the Mandatory Economic Terms and contain the Mandatory
Document Terms, and (ii) any substantive modification of such Financing
Agreements from the forms of Financing Agreements contemplated by this Agreement
do not materially and adversely affect the Certificateholders, and such
certification shall be true and correct.
Anything herein to the contrary notwithstanding, the obligation of
the Pass Through Trustee to purchase the Series D Equipment Notes shall
terminate on the Cut-off Date.
SECTION 3. REPRESENTATIONS AND WARRANTIES. (a) The Company
represents and warrants that:
(i) the Company is duly incorporated, validly existing and in
good standing under the laws of the State of Delaware and is a
"citizen of the United States" as defined in Section 40102(a)(15) of
the Act, and has the full corporate power, authority and legal right
under the laws of the State of Delaware to execute and deliver this
Agreement, each Intercreditor Agreement Amendment, each PA Amendment,
each Indenture Amendment, each Series D Equipment Note referred to in
Section 1A hereof and each Financing Agreement (each of the foregoing
documents being herein called a "TRANSACTION DOCUMENT" and,
collectively, the "TRANSACTION DOCUMENTS") and to carry out the
obligations of the Company under each Transaction Document to which it
will be a party;
(ii) the execution and delivery by the Company of each
Transaction Document and the performance by the Company of its
obligations under each Transaction Document 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;
(iii) this Agreement constitutes, and each other Transaction
Document when executed and delivered by the Company will constitute,
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;
(iv) Except for the filing for recordation (and recordation) of
the Indenture Amendments under the Act and the filing of continuation
statements or "in lieu" financing statements to continue the
effectiveness of the "Financing Statements" (as defined in each Owned
Aircraft Indenture), no further action, including any filing or
recording of any document (including any financing statement in
respect thereof under Article 9 of the UCC (as defined in the Owned
Aircraft Indentures)) is necessary in order to establish and perfect
the Loan Trustee's security interest in each Owned Aircraft as against
the Company and any other Person, in each case, in any applicable
jurisdictions in the United States;
(v) The Company is a "U.S. Air Carrier" (as defined in the Owned
Aircraft Indentures) and holds all licenses, permits and franchises
from the appropriate government entities necessary to authorize the
Company to lawfully engage in air transportation and to carry on
scheduled commercial passenger service as currently conducted, except
where the failure to so hold any such license, permit or franchise
would not give rise to a "Material Adverse Change" (as defined in the
Owned Aircraft Indentures) to the Company;
(vi) The Company is not an "investment company" or a company
controlled by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended;
(vii) Neither the Company nor any person authorized to act on its
behalf has directly or indirectly offered any beneficial interest or
Security (as defined in the Owned Aircraft Indentures) relating to the
ownership of the Owned Aircraft, or any of the Equipment Notes or any
other interest in or security under the Owned Aircraft Indentures, for
sale to, or solicited any offer to acquire any such interest or
security from, or has sold any such interest or security to, any
person in violation of the Securities Act of 1933, as amended; and
(viii) The Loan Trustee is entitled to the benefits of Section
1110 (as currently in effect) with respect to the right to take
possession of each Owned Aircraft and to enforce any of its other
rights or remedies as provided in the Owned Aircraft Indentures in the
event of a case under Chapter 11 of the Bankruptcy Code in which the
Company is a debtor.
(b) WTC represents and warrants that:
(i) WTC is duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and is a "citizen of
the United States" as defined in Section 40102(a)(15) of the Act, and
has the full corporate power, authority and legal right under the laws
of the State of Delaware and the United States pertaining to its
banking, trust and fiduciary powers to execute and deliver each
Transaction Document 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 each
Transaction Document 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 each Transaction Document 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 each Transaction
Document 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, and each other Transaction
Document to which it will be a party when executed and delivered by
WTC will constitute, 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 each
Transaction Document to which it is or will be a party and to perform
its obligations under each Transaction Document 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, and
each other Transaction Document to which it will be a party when
executed and delivered by it will constitute, 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 any Transaction Document to which it is or will
be a party 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 or any other Transaction Document to which it
is or will be a party nor the consummation by the Subordination Agent
of any of the transactions contemplated hereby or thereby 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 or any other
Transaction Document to which it is or will be a party (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
Agreements 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
Series D 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 Agreements 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 or
any other Transaction Document to which it is or will be a party.
(e) The Escrow Agent represents and warrants that:
(i) the Escrow Agent is a national banking association duly
incorporated, validly existing and in good standing under the laws of
the United States and has the full corporate power, authority and
legal right under the laws of the United States pertaining to its
banking, trust and fiduciary powers to execute and deliver this
Agreement, the Deposit Agreement and the Escrow and Paying Agent
Agreement (collectively, the "ESCROW AGENT AGREEMENTS") and to carry
out the obligations of the Escrow Agent under each of the Escrow Agent
Agreements;
(ii) the execution and delivery by the Escrow Agent of each of
the Escrow Agent Agreements and the performance by the Escrow Agent of
its obligations hereunder and thereunder have been duly authorized by
the Escrow Agent and will not violate its articles of association or
by-laws or the provisions of any indenture, mortgage, contract or
other agreement to which it is a party or by which it is bound; and
(iii) each of the Escrow Agent Agreements constitutes the legal,
valid and binding obligations of the Escrow Agent enforceable against
it in accordance with its terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by
general principles of equity, whether considered in a proceeding at
law or in equity.
(f) The Paying Agent represents and warrants that:
(i) the Paying Agent is duly incorporated, validly existing and
in good standing under the laws of the State of Delaware and has the
full corporate power, authority and legal right under the laws of the
United States pertaining to its banking, trust and fiduciary powers to
execute and deliver this Agreement and the Escrow and Paying Agent
Agreement (collectively, the "PAYING AGENT AGREEMENTS") and to carry
out the obligations of the Paying Agent under each of the Paying Agent
Agreements;
(ii) the execution and delivery by the Paying Agent of each of
the Paying Agent Agreements and the performance by the Paying Agent of
its obligations hereunder and thereunder have been duly authorized by
the Paying Agent and will not violate its articles of association or
by-laws or the provisions of any indenture, mortgage, contract or
other agreement to which it is a party or by which it is bound; and
(iii) each of the Paying Agent Agreements constitutes the legal,
valid and binding obligations of the Paying Agent enforceable against
it in accordance with its terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by
general principles of equity, whether considered in a proceeding at
law or in equity.
SECTION 4. COVENANTS. (a) The Company covenants with each of the
other parties hereto that:
(i) promptly upon the recordation of the Indenture Amendments
pursuant to the Act, the Company will cause Xxxxx Xxxxx & Xxxxxx, special
counsel in Oklahoma City, Oklahoma, to deliver to the Company, the Pass Through
Trustee and the Loan Trustee with respect to each Owned Aircraft Indenture a
favorable opinion or opinions addressed to each of them with respect to such
recordation;
(ii) subject to Section 4(a)(iv) of this Agreement, the Company
shall at all times maintain its corporate existence and shall not wind up,
liquidate or dissolve or take any action, or fail to take any action, that would
have the effect of any of the foregoing;
(iii) the Company shall at all times remain a U.S. Air Carrier (as
defined in the Financing Agreements) and shall at all times be otherwise
certificated and registered to the extent necessary to entitle the Loan Trustee
to the rights afforded to secured parties of aircraft equipment under Section
1110;
(iv) Section 4.07 of each Indenture is hereby incorporated by
reference herein;
(v) the Company agrees to provide written notice to each of the
parties hereto of the occurrence of the Cut-off Date no later than one Business
Day after the date thereof; such notice to refer specifically to the Pass
Through Trustee's obligation to assign, transfer and deliver all of its right,
title and interest to the Trust Property (as defined in the Pass Through Trust
Agreement) to the trustee of the Related Trust (as defined in the Pass Through
Trust Agreement) in accordance with Section 7.01 of each of the Trust
Supplements;
(vi) the Company agrees, for the benefit of the Subordination Agent
for each Prior Series, that if the Series D Equipment Notes issued pursuant to
any Indenture relating to such Prior Series and sold pursuant to this Agreement
have been repaid in full, the Company shall not thereafter issue new Series D
Equipment Notes under such Indenture (the "SUBSEQUENT D EQUIPMENT NOTES") unless
it shall have obtained written confirmation from each Rating Agency that the
issuance of such Subsequent D Equipment Notes will not result in (i) a reduction
of the rating for any class of pass through certificates of such Prior Series
below the then current rating for such class of pass through certificates or
(ii) a withdrawal or suspension of the rating of any class of pass through
certificates of such Prior Series. If any Subsequent D Equipment Notes are
initially issued to other than a pass through trustee that becomes a party to
the Intercreditor Agreement for such Prior Series, the Company will cause (i)
such Subsequent D Equipment Notes to be subject to the provisions of such
Intercreditor Agreement that allow the "Controlling Party" (as defined in such
Intercreditor Agreement), during the continuance of an "Indenture Default" (as
defined in such Intercreditor Agreement), to direct the Loan Trustee in taking
action under the applicable Indenture and (ii) the Indenture under which such
Subsequent D Equipment Notes are issued to include the provisions set forth in
Exhibit G to this Agreement;
(vii) the Company will use commercially reasonable efforts to file
on or before the Issuance Date "in lieu" financing statements with the Delaware
Secretary of State in order to continue the effectiveness of the "Financing
Statements" (as defined in each Owned Aircraft Indenture) under Revised Article
9 of the Uniform Commercial Code and, to the extent the Company does not make
such filing with respect to any Owned Aircraft Indenture by such time, it will
do so promptly after the Issuance Date (and in any event within 30 days
thereafter); and
(viii) the Company will promptly furnish to either Underwriter, the
Pass Through Trustee or any Subordination Agent, upon its written request,
copies of each Owned Aircraft Participation Agreement and Owned Aircraft
Indenture, PROVIDED that the Company shall be obligated to furnish such copies
to each Underwriter only once.
(b) WTC, in its individual capacity, covenants with each of the
other parties to this Agreement that it will, immediately upon obtaining
knowledge of any facts that would cast doubt upon its continuing status as a
"citizen of the United States" as defined in Section 40102(a)(15) of the Act and
promptly upon public disclosure of negotiations in respect of any transaction
which would or might adversely affect such status, notify in writing all parties
hereto of all relevant matters in connection therewith. Upon WTC giving any such
notice, WTC shall, subject to Section 9.01 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. So long as no Series D Equipment Notes have
been issued in respect of any New Aircraft, the Company agrees to pay (i) all
compensation and reimbursement of expenses, disbursements and advances payable
by the Company under the Pass Through Trust Agreement, and (ii) 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.
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
the Pass Through Trust Agreement, the Escrow Agent and its successors as Escrow
Agent under the Escrow and Paying Agent Agreement, the Paying Agent and its
successors as Paying Agent under the Escrow and Paying Agent Agreement and the
Subordination Agent and its successors as Subordination Agent under the
Intercreditor Agreements.
(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: Treasurer
Facsimile: (000) 000-0000
WILMINGTON TRUST COMPANY,
not in its individual capacity,
except as otherwise provided
herein, but solely as Pass Through
Trustee
By
----------------------------------------
Name:
Title:
Address: Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust
Administration
Facsimile: (000) 000-0000
WILMINGTON TRUST COMPANY,
not in its individual capacity,
except as otherwise provided
herein, but solely as
Subordination Agent under each of
the Intercreditor Agreements
By
----------------------------------------
Name:
Title:
Address: Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust
Administration
Facsimile: (000) 000-0000
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
as Escrow Agent
By
----------------------------------------
Name:
Title:
Address: 00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Corporate Trust
Department, 3rd Floor
Facsimile: (000) 000-0000
WILMINGTON TRUST COMPANY,
as Paying Agent
By
----------------------------------------
Name:
Title:
Address: Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust
Administration
Facsimile: (000) 000-0000
SCHEDULE I to
NOTE PURCHASE AGREEMENT
OWNED AIRCRAFT
OWNED AIRCRAFT
----------------------
U.S. Original Principal
Owned Aircraft Aircraft Reg. Prior Amount of Series D
INDENTURE MODEL NO. SERIES EQUIPMENT NOTES
---------------- ------------- ---------- ---------- ---------------------------
Trust
Indenture 656 Boeing 737-524 N11656 1997-4 $ 1,000
Trust
Indenture 657 Boeing 737-524 N23657 1997-4 1,000
Trust
Indenture 658 Boeing 737-524 N18658 1997-4 1,000
Trust
Indenture 659 Boeing 737-524 N15659 1997-4 1,000
Trust
Indenture 660 Boeing 737-524 N14660 1997-4 1,000
Trust
Indenture 664 Boeing 737-524 N14664 1998-1 492,617
Trust
Indenture 665 Boeing 737-524 N13665 1998-1 255,682
Trust
Indenture 667 Boeing 737-524 N14667 1998-1 7,611,401
Trust
Indenture 668 Boeing 737-524 N14668 1998-1 7,611,401
Trust
Indenture 226 Boeing 737-824 N26226 1998-1 1,000
Trust
Indenture 127 Boeing 757-224 N48127 1998-1 1,745,450
Trust
Indenture 128 Boeing 757-224 N17128 1998-1 1,000
Trust
Indenture 129 Boeing 757-224 N29129 1998-1 1,000
Trust
Indenture 130 Boeing 757-224 N19130 1998-1 1,000
OWNED AIRCRAFT
----------------------
U.S. Original Principal
Owned Aircraft Aircraft Reg. Prior Amount of Series D
INDENTURE MODEL NO. SERIES EQUIPMENT NOTES
---------------- ------------- ---------- ---------- ---------------------------
Trust
Indenture 132 Boeing 757-224 N33132 1998-1 $ 4,514,833
Trust
Indenture 717 Boeing 737-724 N29717 1998-3 5,117,659
Trust
Indenture 718 Boeing 737-724 N13718 1998-3 5,117,659
Trust
Indenture 719 Boeing 737-724 N17719 1998-3 898,492
Trust
Indenture 720 Boeing 737-724 N13720 1998-3 898,491
Trust
Indenture 721 Boeing 737-724 N23721 1998-3 898,491
Trust
Indenture 722 Boeing 737-724 N27722 1998-3 519,655
Trust
Indenture 723 Boeing 737-724 N21723 1998-3 519,655
Trust
Indenture 227 Boeing 737-824 N13227 1998-3 1,093,779
Trust
Indenture 134 Boeing 757-224 N67134 1998-3 480,732
Trust
Indenture 135 Boeing 757-224 N41135 1998-3 429,056
Trust
Indenture 136 Boeing 757-224 N19136 1998-3 379,326
Trust
Indenture 006 Boeing 777-224ER N77006 1998-3 1,857,715
Trust
Indenture 734 Boeing 737-724 N27734 1999-1 3,532,443
Trust
Indenture 228 Boeing 737-824 N14228 1999-1 6,833,055
Trust
Indenture 232 Boeing 737-824 N26232 1999-1 6,785,724
Trust
Indenture 235 Boeing 737-824 N14235 1999-1 3,744,342
OWNED AIRCRAFT
----------------------
U.S. Original Principal
Owned Aircraft Aircraft Reg. Prior Amount of Series D
INDENTURE MODEL NO. SERIES EQUIPMENT NOTES
---------------- ------------- ---------- ---------- ---------------------------
Trust
Indenture 009 Boeing 777-224ER N78009 1999-1 $ 26,085,789
Trust
Indenture 011 Boeing 777-224ER N79011 1999-1 22,753,430
Trust
Indenture 729 Boeing 737-724 N24729 1999-2 2,770,644
Trust
Indenture 732 Boeing 737-724 N16732 1999-2 2,742,152
Trust
Indenture 735 Boeing 737-724 N14735 1999-2 2,712,617
Trust
Indenture 736 Boeing 737-724 N24736 1999-2 2,712,617
Trust
Indenture 236 Boeing 737-824 N35236 1999-2 3,112,834
Trust
Indenture 240 Boeing 737-824 N14240 1999-2 3,471,816
Trust
Indenture 243 Boeing 737-824 N18243 1999-2 2,239,527
Trust
Indenture 246 Boeing 737-824 N27246 1999-2 2,238,278
Trust
Indenture 249 Boeing 737-824 N14249 1999-2 2,104,868
Trust
Indenture 137 Boeing 757-224 N34137 1999-2 1,000
Trust
Indenture 013 Boeing 777-224ER N78013 1999-2 6,038,022
Trust
Indenture 252 Boeing 737-824 N37252 2000-1 3,858,745
Trust
Indenture 253 Boeing 737-824 N37253 2000-1 3,951,584
Trust
Indenture 254 Boeing 737-824 N76254 2000-1 398,837
Trust
Indenture 139 Boeing 757-224 N17139 2000-1 1,000
OWNED AIRCRAFT
----------------------
U.S. Original Principal
Owned Aircraft Aircraft Reg. Prior Amount of Series D
INDENTURE MODEL NO. SERIES EQUIPMENT NOTES
---------------- ------------- ---------- ---------- ---------------------------
Trust
Indenture 140 Boeing 757-224 N41140 2000-1 $ 1,000
Trust
Indenture 141 Boeing 757-224 N19141 2000-1 1,000
Trust
Indenture 051 Boeing 767-424ER N66051 2000-1 8,304,820
Trust
Indenture 052 Boeing 767-424ER N67052 2000-1 5,733,621
Trust
Indenture 053 Boeing 767-424ER N59053 2000-1 158,387
Trust
Indenture 402 Boeing 737-924 N79402 2000-2 5,393,039
Trust
Indenture 403 Boeing 737-924 N38403 2000-2 678,463
Trust
Indenture 155 Boeing 767-224ER N68155 2000-2 7,294,641
Trust
Indenture 156 Boeing 767-224ER N76156 2000-2 7,224,225
Trust
Indenture 158 Boeing 767-224ER N67158 2000-2 1,000
Trust
Indenture 056 Boeing 767-424ER N66056 2000-2 10,673,910
SCHEDULE II to
NOTE PURCHASE AGREEMENT
ELIGIBLE AIRCRAFT AND SCHEDULED DELIVERY MONTHS
Expected
New Aircraft Registration Manufacturer's Scheduled
TYPE NUMBER SERIAL NUMBER DELIVERY MONTH
------------------ ------------------- ----------------------- -------------------------
Boeing 737-824 N37263 31583 August 2001
Boeing 737-824 N33264 31584 August 2001
Boeing 737-824 N76265 31585 August 2001
Boeing 737-824 N33266 32403 August 2001
Boeing 737-824 N37267 31586 September 2001
Boeing 737-824 N38268 31587 September 2001
Boeing 737-824 N76269 31588 October 2001
Boeing 737-824 N73270 31632 October 2001
Boeing 737-824 N35271 31589 November 2001
Boeing 737-824 N36272 31590 November 2001
Boeing 737-924 N72405 30122 August 2001
Boeing 737-924 N73406 30123 September 2001
Boeing 737-924 N37407 30124 September 2001
Boeing 737-924 N37408 30125 October 2001
Boeing 737-924 N75409 30126 November 2001
Boeing 737-924 N75410 30127 December 2001
SCHEDULE III to
NOTE PURCHASE AGREEMENT
ORIGINAL INTERCREDITOR AGREEMENTS
1. Intercreditor Agreement, dated as of October 23, 1997, among Wilmington
Trust Company, as Class A Trustee, Class B Trustee, and Class C Trustee
with respect to the Pass Through Certificates, Series 1997-4; ABN Amro Bank
N.V., acting through its Chicago branch, and Westdeutsche Landesbank
Girozentrale, acting through its New York branch, as Class A Liquidity
Providers, Class B Liquidity Providers and Class C Liquidity Providers (as
defined therein); and Wilmington Trust Company, as Subordination Agent and
trustee;
2. Intercreditor Agreement, dated as of February 20, 1998, among Wilmington
Trust Company, as Class A Trustee, Class B Trustee, and Class C Trustee
with respect to the Pass Through Certificates, Series 1998-1; AIG Matched
Funding Corp., as Class A Liquidity Provider, Class B Liquidity Provider
and Class C Liquidity Provider (as defined therein); and Wilmington Trust
Company, as Subordination Agent and trustee;
3. Intercreditor Agreement, dated as of November 3, 1998, among Wilmington
Trust Company, as Class A-1 Trustee, Class A-2 Trustee, Class B Trustee,
Class C-1 Trustee, and Class C-2 Trustee with respect to the Pass Through
Certificates, Series 1998-3; Westdeutsche Landesbank Girozentrale, acting
through its New York branch, as Class A-1 Liquidity Provider and Class A-2
Liquidity Provider (as defined therein); Xxxxxx Xxxxxxx Capital Services,
Inc., as Class B Liquidity Provider, Class C-1 Liquidity Provider and Class
C-2 Liquidity Provider (as defined therein); and Wilmington Trust Company,
as Subordination Agent and trustee;
4. Intercreditor Agreement, dated as of February 8, 1999, among Wilmington
Trust Company, as Class A Trustee, Class B Trustee, and Class C Trustee
with respect to the Pass Through Certificates, Series 1999-1; Bayerische
Landesbank Girozentrale, as Class A Liquidity Provider, Class B Liquidity
Provider and Class C Liquidity Provider (as defined therein); and
Wilmington Trust Company, as Subordination Agent and trustee;
5. Intercreditor Agreement, dated as of June 17, 1999, among Wilmington Trust
Company, as Class A-1 Trustee, Class A-2 Trustee, Class B Trustee, Class
C-1 Trustee, and Class C-2 Trustee with respect to the Pass Through
Certificates, Series 1999-2; Bayerische Landesbank Girozentrale, as Class
A-1 Liquidity Provider, Class A-2 Liquidity Provider, Class B Liquidity
Provider, Class C-1 Liquidity Provider and Class C-2 Liquidity Provider (as
defined therein); and Wilmington Trust Company, as Subordination Agent and
trustee;
6. Intercreditor Agreement, dated as of March 15, 2000, among Wilmington Trust
Company, as Class A-1 Trustee, Class A-2 Trustee, Class B Trustee, Class
C-1 Trustee, and Class C-2 Trustee with respect to the Pass Through
Certificates, Series 2000-1; Credit Suisse First Boston, New York Branch,
as Class A-1 Liquidity Provider, Class A-2 Liquidity Provider and Class B
Liquidity Provider (as defined therein); Xxxxxx Xxxxxxx Capital Services,
Inc., as Class C-1 Liquidity Provider and Class C-2 Liquidity Provider (as
defined therein); and Wilmington Trust Company, as Subordination Agent and
trustee; as amended by the Acknowledgment and Agreement, dated May 12,
2000, among the foregoing parties and Landesbank Hessen-Thuringen
Girozentrale, as replacement Class A-1 Liquidity Provider, replacement
Class A-2 Liquidity Provider and replacement Class B Liquidity Provider;
and
7. Intercreditor Agreement, dated as of November 28, 2000, among Wilmington
Trust Company, as Class A-1 Trustee, Class A-2 Trustee, Class B Trustee,
and Class C Trustee with respect to the Pass Through Certificates, Series
2000-2; Landesbank Hessen-Thuringen Girozentrale, as Class A-1 Liquidity
Provider, Class A-2 Liquidity Provider, Class B Liquidity Provider and
Class C Liquidity Provider (as defined therein); and Wilmington Trust
Company, as Subordination Agent and trustee.
SCHEDULE IV to
NOTE PURCHASE AGREEMENT
MANDATORY DOCUMENT TERMS
The following apply to the forms of New Indenture and New Participation
Agreement, as modified by the Indenture Amendment and PA Amendment,
respectively.
1. May not modify in any material adverse respect the Granting Clause of the
New Indenture so as to deprive the Note Holders of a first priority
security interest in and mortgage lien on the New Aircraft or to eliminate
any of the obligations secured thereby or otherwise modify in any material
adverse respect as regards the interests of the Note Holders, the 2000-2
Subordination Agent or the Loan Trustee the provisions of Article II or III
or Section 4.05(c), 5.01, 5.02, 6.02, 10.01(a), 11.04, 11.11, 11.12 or
11.13 of the New Indenture or the definition of "Make-Whole Amount" in
Annex A to the New Indenture.
2. May not modify in any material adverse respect as regards the interests of
the Note Holders, the 2000-2 Subordination Agent or the Loan Trustee the
provisions of Section 4.1.8, 4.1.9, 4.1.10, 4.1.11, 6.1.3(b), 6.3, 10,
12.8(a) or 12.9 of the New Participation Agreement, of the provisions of
Section 4.1.2(x) of the New Participation Agreement so as to eliminate the
requirement to deliver to the Loan Participant or the Loan Trustee, as the
case may be, the legal opinions to be provided to such Persons thereunder
(recognizing that the lawyers rendering such opinions may be changed) or of
the provisions of Section 6.4.5(a)(ii) of the New Participation Agreement
as regards the rights of the Loan Trustee thereunder or otherwise modify
the terms of the New Participation Agreement to deprive the Pass Through
Trustee, the 2000-2 Subordination Agent or the Loan Trustee of any
indemnity or right of reimbursement in its favor for Expenses or Taxes.
Notwithstanding the foregoing, any such Mandatory Document Term may be
modified to correct or supplement any such provision which may be defective
or to cure any ambiguity or correct any mistake, PROVIDED that any such
action shall not materially adversely affect the interests of the Note
Holders, the 2000-2 Subordination Agent, the Loan Trustee or the
Certificateholders.
SCHEDULE V to
NOTE PURCHASE AGREEMENT
MANDATORY ECONOMIC TERMS
SERIES D EQUIPMENT NOTES
Obligor: Continental
Principal Amount:
The principal amount of the Series D Equipment Notes issued (i) with respect to
each of the two Boeing 737-824 New Aircraft shall equal $2,467,894 and (ii) with
respect to each of the two Boeing 737-924 New Aircraft shall equal $529,844.
As of the Delivery Period Termination Date, the original aggregate principal
amount of all Series D Equipment Notes shall equal the original aggregate face
amount of the Certificates (assuming Series D Equipment Notes are acquired for
all New Aircraft).
Final Maturity Date: December 1, 2006, with no scheduled amortization. The final
expected distribution date of the Certificates shall be December 1, 2006.
Debt Rate (computed on the basis of a 360-day year consisting of twelve 30-day
months, payable semi-annually in arrears): 7.568%
Payment Due Rate: Debt Rate plus 2% per annum
Payment Dates: June 1 and December 1
Make-Whole Premium: As provided in Article II of the form of the New Indenture,
as amended by the Indenture Amendment (the "OWNED INDENTURE FORM")
Redemption: As provided in Article II of the Owned Indenture Form
All-risk hull insurance: With respect to each Owned Aircraft, not less than the
unpaid principal amount of the related Equipment Notes, together with six months
of interest accrued thereon, subject to Continental's right to self-insure on
terms no more favorable to Continental in any material respect than those set
forth in Section G of Annex B to the Owned Indenture Form.
PARTICIPATION AGREEMENT
Mortgagee, 0000-0 Xxxxxxxxxxxxx Xxxxx, Xxxx Through Trustee, Escrow Agent and
Note Holder indemnified against Expenses and Taxes to the extent set forth in
Section 8 of the form of the New Participation Agreement, as amended by the PA
Amendment
ANNEX A to
NOTE PURCHASE AGREEMENT
DEFINITIONS
"ACT" means 49 U.S.C.ss.ss.40101-46507.
"AFFILIATE" means, with respect to any person, any other person directly or
indirectly controlling, controlled by or under common control with such person.
For purposes of this definition, "control" means the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such person, whether through the ownership of voting securities or by contract
or otherwise and "controlling," "controlled by" and "under common control with"
have correlative meanings.
"AIRCRAFT PURCHASE AGREEMENT" means the Purchase Agreement No. 1951 dated July
23, 1996, as amended, between the Company and the Manufacturer (including all
exhibits thereto, together with all letter agreements entered into that by their
terms constitute part of such Purchase Agreement).
"BANKRUPTCY CODE" means the United States Bankruptcy Code, 11 U.S.C.ss.ss.102 ET
SEQ.
"BASIC PASS THROUGH TRUST AGREEMENT" means the Pass Through Trust Agreement,
dated September 25, 1997, between the Company and WTC, as pass through trustee,
as such agreement may be supplemented, amended or modified, but does not include
any Trust Supplement.
"BUSINESS DAY" means any day, other than a Saturday, Sunday or other day on
which commercial banks are authorized or required by law to close in New York,
New York, Houston, Texas, Wilmington, Delaware or Salt Lake City, Utah.
"CERTIFICATES" has the meaning set forth in the fifth recital to the Note
Purchase Agreement.
"CERTIFICATEHOLDER" means the Person in whose name a Certificate is registered
in the Register.
"COMPANY" means Continental Airlines, Inc., a Delaware corporation.
"CORPORATE TRUST OFFICE" with respect to the Pass Through Trustee or any Loan
Trustee, means the office of such trustee in the city at which at any particular
time its corporate trust business shall be principally administered.
"CUT-OFF DATE" means the earlier of (a) the day after the Delivery Period
Termination Date and (b) the date on which a Triggering Event occurs.
"DELIVERY PERIOD TERMINATION DATE" means the earlier of (a) February 1, 2002,
or, if the Series D Equipment Notes relating to all of the New Aircraft (or
Substitute Aircraft in lieu thereof) have not been purchased by the Pass Through
Trustee on or prior to such date due to any reason beyond the control of the
Company and not occasioned by the Company's fault or negligence, May 1, 2002
(provided that, if a labor strike occurs or continues at the Manufacturer after
the Prior Issuance Date on or prior to either or both of such dates referred to
in this clause (a), such date or dates on or following the Prior Issuance Date
shall be extended by adding thereto the number of days that such strike
continued in effect after the Prior Issuance Date) and (b) the date on which
Series D Equipment Notes issued with respect to all of the New Aircraft (or
Substitute Aircraft in lieu thereof) have been purchased by the Pass Through
Trustee in accordance with the Note Purchase Agreement.
"DELIVERY DATE" means the Business Day on which a New Aircraft is delivered to
and accepted by the Company.
"DEPOSIT" has the meaning set forth in the tenth recital to the Note Purchase
Agreement.
"DEPOSIT AGREEMENT" has the meaning set forth in the tenth recital to the Note
Purchase Agreement.
"DEPOSITARY" means Credit Suisse First Boston, a banking institution organized
under the laws of Switzerland, acting through its New York branch.
"ELIGIBLE AIRCRAFT" has the meaning set forth in the fourth recital to the Note
Purchase Agreement.
"EQUIPMENT NOTES" means and includes any equipment notes issued under any
Indenture in the form specified in Section 2.01 thereof (as such form may be
varied pursuant to the terms of such Indenture or any related Indenture
Amendment) 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 tenth
recital to the Note Purchase Agreement.
"FAA" means the Federal Aviation Administration of the United States.
"FINAL WITHDRAWAL" with respect to the Escrow and Paying Agent Agreement, has
the meaning set forth in Section 1.02 thereof.
"FINANCING AGREEMENTS" means, collectively, a Participation Agreement, an
Indenture and the Equipment Notes issued thereunder.
"GOVERNMENT ENTITY" means (a) any federal, state, provincial or similar
government, and any body, board, department, commission, court, tribunal,
authority, agency or other instrumentality of any such government or otherwise
exercising any executive, legislative, judicial, administrative or regulatory
functions of such government or (b) any other government entity having
jurisdiction over any matter contemplated by the Operative Agreements or
relating to the observance or performance of the obligations of any of the
parties to the Operative Agreements.
"INDENTURE" means a New Indenture or an Owned Aircraft Indenture.
"INDENTURE AMENDMENT" means an amendment to an Owned Aircraft Indenture
substantially in the form of Exhibit A-2 hereto.
"INTERCREDITOR AGREEMENT AMENDMENT" means, in the case of an Intercreditor
Agreement for a Prior Series, Amendment No. 1 to Intercreditor Agreement, dated
the Issuance Date, among the Company, the pass through trustees for such Prior
Series, the liquidity providers for such Prior Series and the Subordination
Agent, providing for, among other things, the Pass Through Trustee to become a
party to such Intercreditor Agreement.
"INTERCREDITOR AGREEMENTS" has the meaning set forth in the sixth recital to the
Note Purchase Agreement.
"ISSUANCE DATE" means the date of 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.
"LIQUIDITY FACILITY" means a "Liquidity Facility" as defined in any
Intercreditor Agreement.
"LIQUIDITY PROVIDER" means a "Liquidity Provider" as defined in any
Intercreditor Agreement.
"LOAN TRUSTEE" means the "Mortgagee" as defined in the Financing Agreements.
"MANDATORY DOCUMENT TERMS" means the terms set forth on Schedule IV to the Note
Purchase Agreement.
"MANDATORY ECONOMIC TERMS" means the terms set forth on Schedule V 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 fourth recital to the Note
Purchase Agreement.
"NEW INDENTURE" means a Trust Indenture and Mortgage substantially in the form
of Exhibit C-2 to the 2000-2 Note Purchase Agreement.
"NEW PARTICIPATION AGREEMENT" means a Participation Agreement substantially in
the form of Exhibit C-1 to the 2000-2 Note Purchase Agreement.
"NOTE HOLDER" means the registered holder of a Series D Equipment Note.
"NOTE PURCHASE AGREEMENT" means the Note Purchase Agreement to which this Annex
A is attached.
"NOTICE OF PURCHASE WITHDRAWAL" with respect to the Deposit Agreement, has the
meaning set forth in Section 2.3 thereof.
"OPERATIVE AGREEMENTS" means, collectively, the Pass Through Trust Agreement,
the Escrow and Paying Agent Agreement, the Deposit Agreement, the Intercreditor
Agreements, the Series D Equipment Notes, the Certificates and the Financing
Agreements.
"ORIGINAL INTERCREDITOR AGREEMENTS" has the meaning set forth in the sixth
recital to the Note Purchase Agreement.
"OWNED AIRCRAFT" has the meaning set forth in the third recital to the Note
Purchase Agreement.
"OWNED AIRCRAFT INDENTURE" means, in the case of any Owned Aircraft, the
indenture corresponding thereto listed on Schedule I to the Note Purchase
Agreement, as amended by the related Indenture Amendment and, in the case Trust
Indenture 656, Trust Indenture 657, Trust Indenture 667, Trust Indenture 668 and
Trust Indenture 718, as previously amended by Amendment No. 1 thereto dated
November 9, 1998, November 9, 1998, March 22, 1999, March 22, 1999 and August
30, 1999, respectively.
"OWNED AIRCRAFT PARTICIPATION AGREEMENT" means, in the case of any Owned
Aircraft, the "Participation Agreement" as defined in the Owned Aircraft
Indenture corresponding to such Owned Aircraft, as amended by the related PA
Amendment.
"PA AMENDMENT" means an amendment to an Owned Aircraft Participation Agreement
substantially in the form of Exhibit A-1 hereto.
"PARTICIPATION AGREEMENT" means a New Participation Agreement or an Owned
Aircraft Participation Agreement.
"PASS THROUGH TRUST" has the meaning set forth in the fifth recital to the Note
Purchase Agreement.
"PASS THROUGH TRUST AGREEMENT" has the meaning set forth in the fifth recital to
the Note Purchase Agreement.
"PASS THROUGH TRUSTEE" has the meaning set forth in the first paragraph of the
Note Purchase Agreement.
"PAYING AGENT" has the meaning set forth in the first paragraph of the Note
Purchase Agreement.
"PERSON" means any individual, firm, partnership, joint venture, trust, trustee,
Government Entity, organization, association, corporation, limited liability
company, government agency, committee, department, authority and other body,
corporate or incorporate, whether having distinct legal status or not, or any
member of any of the same.
"PRIOR ISSUANCE DATE" means November 28, 2000.
"PRIOR SERIES" has the meaning set forth in the second recital to the Note
Purchase Agreement.
"PROSPECTUS SUPPLEMENT" means the final Prospectus Supplement, dated July 13,
2001, to the Prospectus, dated March 23, 2001, of the Company relating to the
offering of the Certificates.
"RATING AGENCIES" means, collectively, at any time, each nationally recognized
rating agency which shall have been requested to rate the Certificates and which
shall then be rating the Certificates. The initial Rating Agencies will be
Xxxxx'x Investors Service, Inc. and Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc.
"RATING AGENCY CONFIRMATION" means, with respect to (1) any Financing Agreement
that has been modified in any material respect from the forms thereof attached
to the Note Purchase Agreement or (2) a Substitute Aircraft, a written
confirmation from each of the Rating Agencies that (1) the use of such Financing
Agreement with such modifications or (2) the substituting of such Substitute
Aircraft for an Eligible Aircraft, respectively, whichever of the foregoing
shall in a particular case require Rating Agency Confirmation, would not result
in (i) a reduction of the rating for the Certificates below the then current
rating for the Certificates or (ii) a withdrawal or suspension of the rating of
the Certificates.
"REGISTER" means the register maintained pursuant to Sections 3.04 and 7.12 of
the Basic Pass Through Trust Agreement with respect to each Pass Through Trust.
"REGULAR DISTRIBUTION DATES" shall mean June 1 and December 1 of each year,
commencing December 1, 2001.
"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 D EQUIPMENT NOTES" means Equipment Notes issued under an Indenture and
designated as "Series D" thereunder, if any.
"SUBORDINATION AGENT" has the meaning set forth in the first paragraph of the
Note Purchase Agreement.
"SUBSTITUTE AIRCRAFT" has the meaning set forth in Section 1(g) of the Note
Purchase Agreement.
"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.
"TRANSACTION DOCUMENT" has the meaning set forth in Section 3(a)(i).
"TRIGGERING EVENT" means a "Triggering Event" as defined in any Intercreditor
Agreement.
"2000-2 NOTE PURCHASE AGREEMENT" means the Note Purchase Agreement, dated as of
November 28, 2000, among the Company, WTC, as pass through trustee under the
pass through trust agreements referred to therein, WTC, as subordination agent,
WFB, as escrow agent, and WTC, as paying agent.
"2000-2 SUBORDINATION AGENT" means the Subordination Agent with respect to the
Intercreditor Agreement for the Continental Airlines pass through certificates,
Series 2000-2.
"UNDERWRITING AGREEMENT" has the meaning set forth in the seventh recital to the
Note Purchase Agreement.
"UNDERWRITERS" has the meaning set forth in the seventh recital to the Note
Purchase Agreement.
"WFB" has the meaning set forth in the first paragraph of 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 PA AMENDMENT
[Filed Separately]
EXHIBIT A-2 to
NOTE PURCHASE AGREEMENT
FORM OF INDENTURE AMENDMENT
[Filed Separately]
EXHIBIT B to
NOTE PURCHASE AGREEMENT
DELIVERY NOTICE
Dated as of [__________]
To each of the addressees listed
in Schedule A hereto
RE: DELIVERY NOTICE IN ACCORDANCE WITH NOTE PURCHASE
AGREEMENT REFERRED TO BELOW
------------------------------------------------
Gentlemen:
Reference is made to the Note Purchase Agreement, dated as of July
31, 2001, among Continental Airlines, Inc. (the "COMPANY"), Wilmington Trust
Company, as Pass Through Trustee under the Pass Through Trust Agreement (as
defined therein) (the "PASS THROUGH TRUSTEE"), Wilmington Trust Company, as
Subordination Agent under each of the Intercreditor Agreements (as defined
therein) (the "SUBORDINATION AGENT"), Xxxxx Fargo Bank Northwest, National
Association, as Escrow Agent (the "ESCROW AGENT") and Wilmington Trust Company,
as Paying Agent (the "PAYING AGENT") (as in effect from time to time, the "NOTE
PURCHASE AGREEMENT"). Unless otherwise defined herein, capitalized terms used
herein shall have the meanings set forth in the Note Purchase Agreement.
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 Scheduled Delivery Date of the Aircraft is [_________];
(2) The Funding Date for the Aircraft shall be [__________]; and
(3) The aggregate amount of Series D Equipment Notes to be issued, and
purchased by the Pass Through Trustee, on the Funding Date in connection
with the financing of such Aircraft is as follows: $[__________]
The Company hereby instructs the Pass Through Trustee to (i) execute
a Withdrawal Certificate in the form of Annex A hereto dated as of [__________]
and attach thereto a Notice of Purchase Withdrawal dated such date completed as
set forth on Exhibit A hereto and (ii) deliver such Withdrawal Certificate and
Notice of Purchase Withdrawal to the Escrow Agent.
The Company hereby instructs the Pass Through Trustee to (i)
purchase Series D Equipment Notes in an amount set forth in clause (3) above
with a portion of the proceeds of the withdrawals of Deposits referred to in the
applicable Notice of Purchase Withdrawal referred to above and (ii) re-deposit
with the Depositary the excess, if any, of the amount so withdrawn OVER the
purchase price of such Series D Equipment Notes.
The Company hereby instructs the Pass Through Trustee to (a) enter
into the Participation Agreement [____] dated as of [__________] among the
Company and Wilmington Trust Company, as Mortgagee and Loan Participant, (b)
perform its obligations thereunder and (c) deliver such certificates, documents
and legal opinions relating to such Pass Through Trustee as required thereby.
Yours faithfully,
Continental Airlines, Inc.
By:
-------------------------------------
Name:
Title:
SCHEDULE A
Wilmington Trust Company, as
Pass Through Trustee, Subordination
Agent and Mortgagee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
Xxxxx Fargo Bank Northwest, National Association,
as Escrow Agent
00 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Corporate Trust Department
Facsimile: (000) 000-0000
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxxx
Facsimile: (000) 000-0000
Annex A
WITHDRAWAL CERTIFICATE
(Class ___)
Xxxxx Fargo Bank Northwest, National Association,
as Escrow Agent
Ladies and Gentlemen:
Reference is made to the Escrow and Paying Agent Agreement, dated as
of July 31, 2001 (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 (000) 000-0000.
Capitalized terms used herein but not defined herein shall have the
meanings set forth in the Agreement.
Very truly yours,
WILMINGTON TRUST COMPANY,
not in its individual capacity by solely as Pass
Through Trustee
By:
---------------------------------------------
Name:
Title:
Dated: As of [__________]
Exhibit A
NOTICE OF PURCHASE WITHDRAWAL
CREDIT SUISSE FIRST BOSTON
New York Branch
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telecopier: 000-000-0000
Gentlemen:
Reference is made to the Deposit Agreement dated as of July 31, 2001
(the "DEPOSIT AGREEMENT") between Xxxxx Fargo Bank Northwest, National
Association, as Escrow Agent, and Credit Suisse First Boston, New York branch,
as Depositary (the "DEPOSITARY").
In accordance with Section 2.3(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the Deposit,
$[_______], Account No. [____].
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposit to [___________________], Account No. ____, Reference: _________] on
________ __, 20___, upon the telephonic request of a representative of the Pass
Through Trustee.
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
as Escrow Agent
By
--------------------------------------
Name:
Title:
Dated: As of [__________]
EXHIBIT G to
NOTE PURCHASE AGREEMENT
Subordination. (a) As between the Note Holders, this Trust Indenture
shall be a subordination agreement for purposes of Xxxxxxx 000 xx xxx Xxxxxx
Xxxxxx Bankruptcy Code, as amended from time to time.
(b) If any Note Holder receives any payment in respect of any
obligations owing hereunder, which is subsequently invalidated, declared
preferential, set aside and/or required to be repaid to a trustee, receiver or
other party, then, to the extent of such payment, such obligations intended to
be satisfied shall be revived and continue in full force and effect as if such
payment had not been received.
(c) Each of the Note Holders may take any of the following actions
without impairing its rights under this Trust Indenture:
(i) obtain a Lien on any property to secure any amounts owing to it
hereunder,
(ii) obtain the primary or secondary obligation of any other obligor
with respect to any amounts owing to it hereunder,
(iii) renew, extend, increase, alter or exchange any amounts owing
to it hereunder, or release or compromise any obligation of any obligor
with respect thereto,
(iv) refrain from exercising any right or remedy, or delay in
exercising such right or remedy, which it may have, or
(v) take any other action which might discharge a subordinated party
or a surety under applicable law;
provided, however, that the taking of any such actions by any of the Note
Holders shall not prejudice the rights or adversely affect the obligations of
any other party under this Trust Indenture.
