AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (1999-1)
AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (this "AMENDMENT NO. 1")
dated as of July 31, 2001, among CONTINENTAL AIRLINES, INC., a Delaware
corporation ("CONTINENTAL"); WILMINGTON TRUST COMPANY, a Delaware corporation,
not in its individual capacity but solely as Trustee under the Continental
Airlines Pass Through Trust 1999-1A-S (the "CLASS A TRUSTEE"), as Trustee under
the Continental Airlines Pass Through Trust 1999-1B-S (the "CLASS B TRUSTEE"),
as Trustee under the Continental Airlines Pass Through Trust 1999-1C-S (the
"CLASS C TRUSTEE") and as Trustee under the Continental Airlines Pass Through
Trust 2001-2D-O (the "CLASS D TRUSTEE"); BAYERISCHE LANDESBANK GIROZENTRALE, a
public law banking institution organized under the laws of the Free State of
Bavaria, Germany, as Class A Liquidity Provider, Class B Liquidity Provider and
Class C Liquidity Provider; and WILMINGTON TRUST COMPANY, not in its individual
capacity except as expressly set forth in the Intercreditor Agreement referred
to below, but solely as Subordination Agent and trustee under the Intercreditor
Agreement referred to below (in such capacity, together with any duly appointed
successor, the "SUBORDINATION AGENT").
WHEREAS, Wilmington Trust Company, not in its individual capacity,
but solely as Class A Trustee, Class B Trustee and Class C Trustee, Bayerische
Landesbank Girozentrale, as Class A Liquidity Provider, Class B Liquidity
Provider and Class C Liquidity Provider, and Wilmington Trust Company, not in
its individual capacity except as expressly set forth therein, but solely as
Subordination Agent and trustee thereunder, have entered into the Intercreditor
Agreement dated as of February 8, 1999 (the "ORIGINAL INTERCREDITOR AGREEMENT",
and as amended by this Amendment No. 1, and as the same may be further amended,
supplemented or otherwise modified from time to time in accordance with its
terms, the "INTERCREDITOR AGREEMENT");
WHEREAS, on the date hereof, a Continental Airlines Pass Through
Trust 2001-2D-O will be created to issue pass through certificates designated as
"Series 2001-2D-O" (the "CLASS D CERTIFICATES") pursuant to a Pass Through Trust
Agreement dated as of September 25, 1997 between Continental and Wilmington
Trust Company, as supplemented by Supplement No. 2001-2D-O thereto dated as of
the date hereof;
WHEREAS, the Class D Trustee will purchase Series D Equipment Notes
issued by Continental under certain Owned Aircraft Indentures using a portion of
the proceeds from the issuance of the Class D Certificates;
WHEREAS, in connection with the issuance of such Series D Equipment
Notes to the Class D Trustee, the parties hereto wish to amend the Original
Intercreditor Agreement in accordance with Section 9.1(a) and 9.1(c) of the
Original Intercreditor Agreement.
WHEREAS, the Ratings Confirmation required under Section 4(a)(vi) of
the Note Purchase Agreement in order to issue such Series D Equipment Notes has
been obtained.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. Except as otherwise defined in this
Amendment No. 1, terms defined in Section 1.1 of the Original Intercreditor
Agreement are used herein as defined therein.
ARTICLE II
AMENDMENTS TO THE ORIGINAL INTERCREDITOR AGREEMENT PURSUANT TO
SECTION 9.1(a)
SECTION 2.1 CERTAIN DEFINITIONS. Pursuant to the clause (x)(ii) of
the first proviso in the first sentence of Section 9.1(a) of the Original
Intercreditor Agreement, Section 1.1 of the Original Intercreditor Agreement is
hereby amended as follows:
(a) the term "Class D Trust" is amended to read as follows: "CLASS D
TRUST" means (A)(i) prior to the Transfer, the Continental Airlines Pass Through
Trust 2001-2D-O created and administered pursuant to the Class D Trust Agreement
and (ii) after the Transfer, the Continental Airlines Pass Through Trust
2001-2D-S created and administered pursuant to the Class D Trust Agreement and
(B) after the Final Distribution has been made with respect to the Class D
Certificates, such other pass through trust that acquires Series D Equipment
Notes, if and when established in accordance with the provisions of Section
4(a)(vi) of the Class D Note Purchase Agreement and subject to the provisions of
Section 9.1(c) of the Intercreditor Agreement.
(b) the term "Class D Trust Agreement" is added in alphabetical
order reading as follows: "CLASS D TRUST AGREEMENT" means (A)(i) prior to the
Transfer, the Basic Agreement, as supplemented by the Supplement No. 2001-2D-O
thereto dated as of the Class D Closing Date, governing the creation and
administration of the Continental Airlines Pass Through Trust 2001-2D-O and the
issuance of the Class D Certificates, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms, and (ii)
after the Transfer, the Basic Agreement, as supplemented by the Supplement No.
2001-2D-S thereto, governing the creation and administration of the Continental
Airlines Pass Through Trust 2001-2D-S and the issuance of the Class D
Certificates, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with its terms and (B) after the Final
Distribution has been made with respect to the Class D Certificates, such other
agreement executed by Continental establishing a Class D Trust in accordance
with the provisions of Section 4(a)(vi) of the Class D Note Purchase Agreement
and subject to the provisions of Section 9.1(c) of the Intercreditor Agreement.
ARTICLE III
AMENDMENTS TO THE ORIGINAL INTERCREDITOR AGREEMENT PURSUANT TO
SECTION 9.1(c)
SECTION 3.1. ADDITIONAL PARTY. Pursuant to Section 9.1(c) of the
Original Intercreditor Agreement, the Original Intercreditor Agreement is hereby
amended by adding the Class D Trustee as a party to the Intercreditor Agreement,
and the parties hereto confirm and agree that, upon execution and delivery of
this Amendment No. 1 by Continental and the Subordination Agent, the Class D
Trustee shall be a party to the Intercreditor Agreement as fully and with the
same force and effect as if the Class D Trustee had originally executed and
delivered a counterpart thereof (it being understood and agreed that the fifth
and seventh "WHEREAS" clauses in the preliminary statements to the Original
Intercreditor Agreement do not apply to the Class D Certificates).
SECTION 3.2. FURTHER AMENDMENTS. (a) Section 1.1 of the Original
Intercreditor Agreement is amended as follows:
(i) the term "Adjusted Expected Distributions" is amended (i) by
deleting the word "on" in clause (x) and adding in lieu thereof the following:
"calculated at the Stated Interest Rate on the Pool Balance of", (ii) by adding
the words "for such Certificates" after the words "the first Distribution Date"
in clause (y)(A)(x) thereof, in clause (y)(A)(y)(iii) thereof and in two
instances in clause (y)(B)(i) thereof, and (iii) by adding at the end of such
definition an additional sentence as follows: "For purposes of calculating
Adjusted Expected Distributions with respect to the Certificates of the Class D
Trust, the original aggregate face amount of the Certificates of such Trust
shall be deemed to be $69,734,783."
(ii) the term "Aggregate LTV Collateral Amount" is amended by adding
at the end of such definition the following: "minus, in the case of the Class D
Certificates, the sum of the applicable LTV Collateral Amounts for each Leased
Aircraft".
(iii) the term "Certificate" is amended by replacing the word "or"
appearing before the words "a Class C Certificate" with a comma and adding the
words "or a Class D Certificate" after the words "a Class C Certificate".
(iv) the term "Class D Certificateholder" is added in alphabetical
order reading as follows: "CLASS D CERTIFICATEHOLDER" means, at any time, any
holder of one or more Class D Certificates.
(v) the term "Class D Closing Date" is added in alphabetical order
reading as follows: "CLASS D CLOSING DATE" means July 31, 2001.
(vi) the term "Class D Note Purchase Agreement" is added in
alphabetical order reading as follows: "CLASS D NOTE PURCHASE AGREEMENT" means
the Note Purchase Agreement, dated as of the Class D Closing Date, among
Continental, the Class D Trustee, the escrow agent named therein, WTC, as
Subordination Agent and as subordination agent under certain other intercreditor
agreements, and the Paying Agent.
(vii) the "Class D Trustee" is added in alphabetical order reading
as follows: "CLASS D TRUSTEE" means WTC, not in its individual capacity except
as expressly set forth in the Class D Trust Agreement, but solely as trustee
under the Class D Trust Agreement together with any successor trustee appointed
pursuant thereto.
(viii) the term "Class D Underwriting Agreement" is added in
alphabetical order reading as follows: "CLASS D UNDERWRITING AGREEMENT" means
the Underwriting Agreement dated July 13, 2001 among Xxxxxx Xxxxxxx & Co.
Incorporated, Credit Suisse First Boston Corporation, the Depositary and
Continental, relating to the purchase of the Class D Certificates by Xxxxxx
Xxxxxxx & Co. Incorporated and Credit Suisse First Boston Corporation, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
(ix) the term "Equipment Notes" is amended by replacing the word
"and" appearing before the words "the Series C Equipment Notes" with a comma and
inserting the words "and the Series D Equipment Notes" after the words "the
Series C Equipment Notes".
(x) the term "Expected Distributions" is amended (i) by deleting the
word "on" in clause (x) and adding in lieu thereof the following: "calculated at
the Stated Interest Rate on the Pool Balance of", (ii) by adding the words "for
such Certificates" after the words "the first Distribution Date" in clause
(y)(A) thereof and in clause (y)(B)(ii) thereof, and (iii) by adding at the end
of such definition an additional sentence as follows: "For purposes of
calculating Expected Distributions with respect to the Certificates of the Class
D Trust, the original aggregate face amount of the Certificates of such Trust
shall be deemed to be $69,734,783."
(xi) the term "Final Distributions" is amended by deleting the word
"on" in clause (x) and adding in lieu thereof the following: "calculated at the
Stated Interest Rate on the Pool Balance of".
(xii) the term "Final Legal Distribution Date" is amended by
deleting the word "and" appearing before the numeral "(iii)" and adding at the
end of such definition the words ", and (iv) with respect to the Class D
Certificates, December 1, 2006."
(xiii) the term "Financing Agreement" is amended by replacing the
word "and" with a comma and adding at the end of such definition the words "and
the Class D Note Purchase Agreement".
(xiv) the term "LTV Collateral Amount" is amended by deleting the
words "secured by" appearing in clause (ii) therein and adding in lieu thereof
the following: "issued in respect of".
(xv) the term "LTV Ratio" is amended by deleting the word "and"
appearing therein and adding at the end of such definition the following: ", and
for the Class D Certificates, 68.0%."
(xvi) the term "Operative Agreements" is amended by inserting the
words "the Class D Underwriting Agreement," after the words "the Underwriting
Agreement".
(xvii) the term "Performing Equipment Note" is amended to read as
follows: "PERFORMING EQUIPMENT NOTE" means an Equipment Note with respect to
which no payment default has occurred and is continuing (without giving effect
to any Acceleration); PROVIDED that in the event of a bankruptcy proceeding
under Title 11 of the United States Code (the "BANKRUPTCY CODE") in which
Continental is a debtor any payment default existing during the 60-day period
under Section 1110(a)(2)(A) of the Bankruptcy Code (or such longer period as may
apply under Section 1110(b) of the Bankruptcy Code or as may apply for the cure
of such payment default under Section 1110(a)(2)(B) of the Bankruptcy Code)
shall not be taken into consideration until the expiration of the applicable
period.
(xviii) the term "Pool Balance" is amended to read as follows: "POOL
BALANCE" means, with respect to each Trust or the Certificates issued by any
Trust, as of any date, (i) the original aggregate face amount of the
Certificates of such Trust (or, in the case of the Class D Trust or the Class D
Certificates, $69,734,783) LESS (ii) the aggregate amount of all payments made
in respect of the Certificates of such Trust under this Agreement or in respect
of Deposits relating to such Trust other than payments made under this Agreement
in respect of interest or premium thereon or reimbursement of any costs and
expenses in connection therewith. The Pool Balance for each Trust or for the
Certificates issued by any Trust as of any Distribution Date shall be computed
after giving effect to any special distribution with respect to unused Deposits,
payment of principal of the Equipment Notes or payment with respect to other
Trust Property held in such Trust and the distribution thereof pursuant to this
Agreement (except in the case of such unused Deposits) to be made on that date.
(xix) the term "PTC Event of Default" is amended by adding after the
words "interest due on such Certificates" appearing in clause (ii) thereof the
following: "(calculated at the Stated Interest Rate on the Pool Balance
thereof)".
(xx) the term "Regular Distribution Dates" is amended to read as
follows: "REGULAR DISTRIBUTION DATES" means (i) with respect to the Liquidity
Facilities and the Class A Certificates, Class B Certificates and Class C
Certificates, each February 2 and August 2, commencing on August 2, 1999, and
(ii) with respect to the Class D Certificates, each June 1 and December 1,
commencing on December 1, 2001; PROVIDED, HOWEVER, that, if any such day shall
not be a Business Day, the related distribution shall be made on the next
succeeding Business Day without additional interest.
(xxi) the term "Series D Equipment Notes" is amended to read as
follows: "SERIES D EQUIPMENT NOTES" means (A) the 7.568% Series D Equipment
Notes issued pursuant to any Owned Aircraft Indenture by Continental and
authenticated by the Loan Trustee thereunder, and any such Equipment Notes
issued in exchange therefore or replacement thereof pursuant to the terms of
such Owned Aircraft Indenture, and (B) after the Final Distribution has been
made with respect to the Class D Certificates, equipment notes, if any, issued
pursuant to any Indenture by the related Owner Trustee or Continental, as the
case may be, in accordance with Section 4(a)(vi) of the Class D Note Purchase
Agreement and subject to the provisions of Section 9.1(c) of the Intercreditor
Agreement and authenticated by the Loan Trustee under such Indenture, and
designated as "Series D" thereunder, and any such equipment notes issued in
exchange therefor or replacement thereof pursuant to the terms of such
Indenture.
(xxii) the term "Stated Interest Rate" is amended by deleting the
word "and" appearing before the numeral "(iii)" and adding at the end of such
definition the following: ", and (iv) with respect to the Class D Certificates,
7.568% per annum".
(xxiii) the term "Successor Trusts" is amended by replacing the word
"and" appearing therein with a comma and adding at the end of such definition
the following: "and Continental Airlines Pass Through Trust 2001-2D-S".
(xxiv) the term "Trust" is amended by replacing the word "or"
appearing before the words "the Class C Trust" with a comma and adding at the
end of such definition the words "or the Class D Trust".
(xxv) the term "Trust Agreement" is amended by replacing the
word "or" appearing before the words "the Class C Trust Agreement" with a comma
and adding at the end of such definition the words "or the Class D Trust
Agreement".
(xxvi) the term "Trustee" is amended by replacing the word "or"
appearing before the words "the Class C Trustee" with a comma and adding at the
end of such definition the words "or the Class D Trustee".
(b) Section 2.4(b)(i) of the Original Intercreditor Agreement is
amended by (i) replacing the words "Equipment Notes" appearing twice in
subclause (B)(y) of clause FIRST thereof with the words "the Series A Equipment
Notes, the Series B Equipment Notes and the Series C Equipment Notes", (ii)
deleting the word "and" appearing at the end of clause SEVENTH thereof, (iii)
amending the word "EIGHTH" to read "NINTH", (iv) inserting after clause SEVENTH
thereof a new clause EIGHTH reading as follows: "EIGHTH, such amount as shall be
required to pay in full Expected Distributions to the holders of the Class D
Certificates on such Special Distribution Date shall be distributed to the Class
D Trustee; and" and (v) deleting the word "on" appearing in the last sentence
before the words "such Certificates together with" and adding in lieu thereof
the following: "calculated at the Stated Interest Rate on the Pool Balance of".
(c) Section 2.6(b) of the Original Intercreditor Agreement is
amended by deleting the word "and" appearing before the letter "(z)" in the
first sentence thereof and inserting after the words "the Class C Trustee" at
the end of the first sentence thereof the following: "; and (aa) upon payment of
Final Distributions to the holders of Class C Certificates, the Class D
Trustee".
(d) Section 3.1(a) of the Original Intercreditor Agreement is
amended by changing the word "EIGHTH" appearing in clause (v) to "NINTH",
changing the numeral "(iv)" to the numeral "(v)" and the numeral "(v)" to the
numeral "(vi)" and inserting after clause (iii) thereof a new clause (iv)
reading as follows: "(iv) With respect to the Class D Certificates, the Class D
Trustee shall separately set forth the amounts to be paid in accordance with
clause "EIGHTH" of Section 3.2 or 2.4(b), as the case may be, hereof;".
(e) Section 3.1(b) of the Original Intercreditor Agreement is
amended by changing the numeral "(iv)" to the numeral "(v)" and the numeral
"(v)" to the numeral "(vi)" and inserting after clause (iii) thereof a new
clause (iv) reading as follows: "(iv) With respect to the Class D Certificates,
the Class D Trustee shall separately set forth the amounts to be paid in
accordance with clauses "FIRST" (to reimburse payments made by the Class D
Certificateholders pursuant to subclause (iii) of clause "FIRST" of Section 3.3
hereof) and "TENTH" of Section 3.3 hereof;"
(f) Section 3.1(f) of the Original Intercreditor Agreement is
amended to change the word "NINTH" appearing twice therein to the word "TENTH".
(g) Section 3.2 of the Original Intercreditor Agreement is amended
by (i) inserting after the words "Section 3.1(a) hereof" but before the colon
appearing in the first sentence thereof the following: "(PROVIDED, that (x) in
the case of each Regular Distribution Date for the Class D Certificates that is
not a Special Distribution Date, amounts shall be payable under clauses FIFTH
through SEVENTH of this Section 3.2 if and only if on the immediately preceding
Distribution Date, any amounts payable under such clauses FIFTH through SEVENTH
were not distributed in full due to the Subordination Agent not having
sufficient funds (after the application of Section 3.6(b)) on such Distribution
Date, and if any such amounts are so payable, such amount as the Subordination
Agent shall have available for distribution after giving effect to clauses FIRST
through FOURTH of this Section 3.2 up to an amount sufficient to pay such
amounts (determined as of such preceding Distribution Date) shall be deposited
in the Special Payments Account and distributed as a Special Payment, and (y) in
the case of each Regular Distribution Date (other than a Regular Distribution
Date for the Class D Certificates) that is not a Special Distribution Date,
amounts shall be payable under clause EIGHTH of this Section 3.2 if and only if
on the immediately preceding Distribution Date, any amounts payable under such
clause EIGHTH were not distributed in full due to the Subordination Agent not
having sufficient funds on such Distribution Date, and if any such amounts are
so payable, such amount as the Subordination Agent shall have available for
distribution after giving effect to clauses FIRST through SEVENTH of this
Section 3.2 up to an amount sufficient to pay such amounts (determined as of
such preceding Distribution Date) shall be deposited in the Special Payments
Account and distributed as a Special Payment)", (ii) amending the word "EIGHTH"
to read "NINTH", (iii) amending the word "NINTH" to read "TENTH" and (iv)
inserting after clause SEVENTH thereof a new clause EIGHTH reading as follows:
"EIGHTH, such amount as shall be required to pay in full Expected Distributions
to the holders of the Class D Certificates on such Distribution Date shall be
distributed to the Class D Trustee;".
(h) Section 3.3 of the Original Intercreditor Agreement is amended
by (i) deleting the word "and" appearing at the end of clause EIGHTH thereof,
(ii) replacing the period at the end of clause NINTH with the following: "; and"
and (iii) inserting at the end of such Section 3.3 a new clause TENTH reading as
follows: "TENTH, such amount remaining as shall be required to pay in full
Adjusted Expected Distributions on the Class D Certificates shall be distributed
to the Class D Trustee".
(i) Section 3.4(c) of the Original Intercreditor Agreement is
amended by changing the word "EIGHTH" appearing in the proviso therein to the
word "NINTH", changing the word "or" appearing in such proviso to a comma and
inserting the words "or "EIGHTH"" after the word ""SEVENTH"" appearing in such
proviso.
(j) Section 3.4 of the Original Intercreditor Agreement is amended
by adding a new subclause (d) reading as follows:
"(d) Notwithstanding the priority of payments specified in Sections
2.4(b)(i), 3.2 and 3.3, all payments received by the Subordination Agent under
any Owned Aircraft Indenture securing Equipment Notes of any Prior Series and to
be applied by the terms of such Owned Aircraft Indenture to the Series D
Equipment Notes issued in respect of any other Prior Series shall be promptly
distributed to the Class D Trustee. The terms "Equipment Notes", "Prior Series"
and "Series D Equipment Notes" as used in this Section 3.4(d) shall have the
respective meanings specified therefor in the Class D Note Purchase Agreement."
(k) Section 3.6(a) of the Original Intercreditor Agreement is
amended by adding the words "(other than a Regular Distribution Date with
respect to the Class D Certificates that is not a Special Distribution Date)"
after the words "any Distribution Date" appearing therein.
(l) Section 3.6(f) of the Original Intercreditor Agreement is
amended by adding the words "(other than a Regular Distribution Date with
respect to the Class D Certificates that is not a Special Distribution Date)"
after the words "each Distribution Date" appearing in each of clauses (i), (ii)
and (iii) thereof.
(m) Section 6.1 of the Original Intercreditor Agreement is amended
by (i) replacing the word "and" appearing before the words "the Class C Trustee"
in the first sentence thereof with a comma and (ii) inserting the words "and the
Class D Trustee" after the words "the Class C Trustee" in the first sentence
thereof.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 MISCELLANEOUS. The amendments to the Original
Intercreditor Agreement contained in Articles II and III hereof shall become
effective as of the date hereof, and from and after the date hereof, each
reference in the Intercreditor Agreement to "this Agreement", and each reference
in the Intercreditor Agreement or in any other Operative Agreement to the
"Intercreditor Agreement" or any like expression referring to the Intercreditor
Agreement, shall be deemed to refer to the Original Intercreditor Agreement as
amended by this Amendment No. 1. The Original Intercreditor Agreement, as
amended hereby, shall remain unchanged and in full force and effect. Each
Liquidity Provider, by its execution and delivery of this Amendment No. 1,
confirms that all of its obligations under the Intercreditor Agreement and the
Liquidity Facilities provided by such Liquidity Provider remain unchanged and in
full force and effect. Each party hereto agrees to execute and deliver all such
further agreements or documents, if any, as shall be necessary to give effect to
the provisions of this Amendment No. 1. This Amendment No. 1 may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument, and any of the parties hereto may execute this Amendment
No. 1 by signing any such counterpart. This Amendment No. 1 shall be governed
by, and construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written, and acknowledge that
this Amendment No. 1 has been made and delivered in the City of New York, and
this Amendment No. 1 has become effective only upon such execution and delivery.
CONTINENTAL AIRLINES, INC.
By
------------------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Class A
Trustee, Class B Trustee, Class C Trustee and Class
D Trustee
By
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Name:
Title:
BAYERISCHE LANDESBANK
GIROZENTRALE,
as Class A Liquidity Provider, Class B Liquidity
Provider and Class C Liquidity Provider
By
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Name:
Title:
By
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Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity except as expressly set
forth herein but solely as Subordination Agent and
Trustee
By
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Name:
Title:
