AMENDMENT NO. 1
TO
TRUST INDENTURE AND MORTGAGE [___]
Amendment No. 1, dated as of [_____], to Trust Indenture and
Mortgage [___], dated as of [____________] (the "TRUST INDENTURE"), between
Continental Airlines, Inc. ("OWNER"), Wilmington Trust Company, in its
individual capacity acting as a "securities intermediary" and Eligible
Institution (the "SECURITIES INTERMEDIARY"), and Wilmington Trust Company, not
in its individual capacity, except as expressly stated therein, but solely as
Mortgagee ("MORTGAGEE").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Owner and Mortgagee entered into the Trust Indenture and
Trust Indenture and Mortgage [___] Supplement No. 1, dated [____________], which
were recorded as one instrument by the FAA on [____________] and were assigned
Conveyance No. [__]; and
WHEREAS, Owner has elected to issue the Series D Equipment Notes as
permitted by the Trust Indenture, and in connection with such issuance, Owner
has requested certain amendments to the Trust Indenture pursuant to Section
10.01(b)(vii) of the Trust Indenture.
NOW, THEREFORE, in consideration of the premises and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined or provided herein,
terms used herein that are defined in the Trust Indenture, as amended by this
Amendment, have such respective defined meanings.
SECTION 2. AMENDMENTS.
SECTION 2.1 GRANTING CLAUSE.
The Granting Clause is amended by inserting after "to secure the
performance and observance by the Owner of all the agreements, covenants and
provisions contained herein and in the Participation Agreement and in the
Equipment Notes" the following: "and to secure the Related Secured Obligations
and the performance and observance by the Owner of all agreements, covenants and
provisions contained in the Related Equipment Notes".
SECTION 2.2. FORM OF EQUIPMENT NOTES.
(a) The form of Equipment Note included in Section 2.01 is amended
by deleting in footnotes 1, 2 and 7 "Series A-2 or Series C-2 Equipment Notes"
in each such footnote and inserting in lieu thereof "Series A-2, Series C-2 or
Series D Equipment Notes". [References to Series X-0, X-0, X-0 and C-2 to be
modified as appropriate for each Prior Series]
(b) The form of Equipment Note is further amended to insert in the
third sentence of the first paragraph a footnote "2A" at the end thereof and to
insert at the bottom of the page on which footnote 2A appears in the text the
following:
"2A. In the case of Series D Equipment Notes, this sentence shall
read as follows: `Accrued but unpaid interest shall be due and payable in
semiannual installments commencing on December 1, 2001, and thereafter on June 1
and December 1 of each year, to and including [_____].'"
(c) The form of Equipment Note is further amended by inserting in
the third and fourth sentences of the seventh paragraph after "to the Trust
Indenture" the following: "[and the Related Indentures]2B".
(d) The form of Equipment Note is further amended by inserting in
the fourth sentence of the seventh paragraph after "the security for, this
Equipment Note" the following "[(including as a "Related Equipment Note" under
each of the Related Indentures)]2B".
(e) The form of Equipment Note is further amended by inserting at
the bottom of the page on which footnote 2B appears in the text the following:
"2B. To be inserted in the case of Series D Equipment Notes."
SECTION 2.3 ISSUANCE AND TERMS OF EQUIPMENT NOTES.
(a) Section 2.02 is amended to add the following at the end of the
first paragraph: "If Series D Equipment Notes are issued hereunder and
subsequently repaid in full, Owner shall thereafter have the option to again
issue Series D Equipment Notes on the same or different terms, subject to the
terms of the Class D Note Purchase Agreement (including without limitation
Section 4(a)(vi) of the Class D Note Purchase Agreement)."
(b) Section 2.02 is further amended by inserting at the end of the
first sentence of the second paragraph the following:
"(or, in the case of the Series D Equipment Notes, payable in arrears
on December 1, 2001, and on each June 1 and December 1 thereafter
until maturity)".
(c) Section 2.02 is further amended by deleting the parenthetical in
clause (i) of the second sentence of the second paragraph and substituting
therefor: "(or, in the case of the Series D Equipment Notes, as set forth in an
amendment to this Trust Indenture)".
(d) Section 2.02 is further amended by inserting at the end of the
third paragraph the following: "The Owner agrees to pay to the Mortgagee for
distribution in accordance with Section 3.04 hereof Owner's Class D Share of
[(i)] all compensation and reimbursement of expenses, disbursements and advances
payable by Owner under the Class D Pass Through Trust Agreement [and (ii) in the
event Owner requests any amendment to any Operative Agreement, any Pass Through
Agreement, the Class D Pass Through Trust Agreement or the Class D Note Purchase
Agreement, all reasonable fees and expenses (including without limitation, fees
and disbursements of counsel) of the "Escrow Agent" and "Paying Agent" (as such
terms are defined in the Class D Note Purchase Agreement) in connection
therewith payable by the Class D Pass Through Trustee under the Class D Escrow
Agreement.] [2000-2 only] As used herein, "Owner's Class D Share" means as of
any time a fraction, the numerator of which is the principal balance then
outstanding of Series D Equipment Notes and the denominator of which is the
aggregate principal balance then outstanding of the Series D Equipment Notes and
all Related Equipment Notes.
(e) Section 2.02 is further amended by inserting at the end of the
last sentence of such Section the following: "(or, in the case of the Series D
Equipment Notes, as set forth in an amendment to this Trust Indenture)".
SECTION 2.4 TERMINATION OF INTEREST IN COLLATERAL.
Section 2.06 is amended by inserting after "and under the other
Operative Agreements by the Owner" the following: "and all Related Secured
Obligations".
SECTION 2.5 MANDATORY REDEMPTION OF EQUIPMENT NOTES.
Section 2.10 is amended by inserting after "and all other Secured
Obligations" the following: "(other than Related Secured Obligations)".
SECTION 2.6 VOLUNTARY REDEMPTIONS OF EQUIPMENT NOTES.
Section 2.11 is amended by inserting after "and all other Secured
Obligations" the following: "(other than Related Secured Obligations)".
SECTION 2.7 SUBORDINATION.
(a) Section 2.13(a) is amended and restated to read in its entirety
as follows:
"(a) The Owner, each Note Holder (by acceptance of its Equipment
Notes of any Series) and each Related Note Holder (by acceptance of its Related
Equipment Note), hereby agree that no payment or distribution shall be made on
or in respect of the Secured Obligations owed to such Note Holder of such Series
or owed to such Related Note Holder, including any payment or distribution of
cash, property or securities after the commencement of a proceeding of the type
referred to in Section 5.01(v), (vi) or (vii) hereof, except as expressly
provided in Article III hereof."
(b) Section 2.13(b) is amended by inserting at the end thereof the
following:
"By the acceptance of its Related Equipment Notes, each Related Note
Holder agrees that in the event that such Related Note Holder, in its capacity
as a Related Note Holder, shall receive any payment or distribution pursuant to
this Trust Indenture on any Related Secured Obligations which it is not entitled
to receive under this Section 2.13 or Article III hereof, it will hold any
amount so received in trust for the Senior Holder (as defined in Section 2.13(c)
hereof) and will forthwith turn over such payment to the Mortgagee in the form
received to be applied as provided in Article III hereof."
(c) Section 2.13(c) is amended by deleting "and" before clause (iii)
and inserting in lieu thereof a comma and by inserting at the end of clause
(iii) the following: "and (iv) after the Secured Obligations in respect of the
Series C-1 or C-2 Equipment Notes have been paid in full, the Note Holders of
the Series D until the Secured Obligations in respect of the Series D Equipment
Notes have been paid in full".
SECTION 2.8 EVENT OF LOSS; REPLACEMENT; OPTIONAL REDEMPTION.
Section 3.02 is amended by inserting in the first paragraph after
"to all other Secured Obligations" the following "then due".
SECTION 2.9 PAYMENTS AFTER EVENT OF DEFAULT.
Section 3.03 is amended by inserting in clause "Third" after
paragraph (iv) the following:
"(v) after giving effect to paragraph (iv) above, so much of such payments
or amounts remaining as shall be required to pay in full all Related
Secured Obligations in respect of the Same Series Related Equipment
Notes then due shall be distributed to the Same Series Related Note
Holders, and in case the aggregate amount so to be distributed shall
be insufficient to pay in full as aforesaid, then ratably, without
priority of one over the other, to each Same Series Related Note
Holder in the proportion that the aggregate unpaid Related Secured
Obligations in respect of Same Series Related Equipment Notes then due
held by such holder bears to the aggregate unpaid Related Secured
Obligations in respect of Same Series Related Equipment Notes then
due; PROVIDED, that if no Related Secured Obligations in respect of
Same Series Related Equipment Notes shall then be due and payable,
such remaining amounts and any invested Cash Equivalents shall be held
by the Mortgagee in an Eligible Account in accordance with the
provisions of Section 3.07 (and invested as provided in Section 6.06
hereof) as additional security for the Related Secured Obligations,
and such amounts (and any investment earnings thereon) shall be
distributed from time to time in accordance with the foregoing
provisions of this paragraph (v) as and to the extent any Related
Secured Obligation in respect of Same Series Related Equipment Notes
shall at any time and from time to time become due and remain unpaid
after the giving of any required notice and the expiration of any
applicable grace period; and, upon the payment in full of all Related
Secured Obligations in respect of the Same Series Related Equipment
Notes, the balance, if any, of any such remaining amounts
and investment earnings thereon shall be applied as provided in
paragraph (vi) of this clause Third; and
(vi) after giving effect to paragraph (v) above, so much of such payments
or amounts remaining as shall be required to pay in full all Related
Secured Obligations in respect of Other Related Equipment Notes then
due shall be distributed to the Other Related Note Holders, and in
case the aggregate amount so to be distributed shall be insufficient
to pay in full as aforesaid, then ratably, without priority of one
over the other, to each Other Related Note Holder in the proportion
that the aggregate unpaid Related Secured Obligations in respect of
Other Related Equipment Notes then due held by such holder bears to
the aggregate unpaid Related Secured Obligations in respect of Other
Related Equipment Notes then due; PROVIDED, that if no Related Secured
Obligations in respect of Other Related Equipment Notes shall then be
due and payable, such remaining amounts and any invested Cash
Equivalents shall be held by the Mortgagee in an Eligible Account in
accordance with the provisions of Section 3.07 (and invested as
provided in Section 6.06 hereof) as additional security for the
Related Secured Obligations, and such amounts (and any investment
earnings thereon) shall be distributed from time to time in accordance
with the foregoing provisions of this paragraph (vi) as and to the
extent any Related Secured Obligation in respect of Other Related
Equipment Notes shall at any time and from time to time become due and
remain unpaid after the giving of any required notice and the
expiration of any applicable grace period; and, upon the payment in
full of all Related Secured Obligations in respect of the Other
Related Equipment Notes, the balance, if any, of any such remaining
amounts and investment earnings thereon shall be applied as provided
in clause Fourth of this Section 3.03; and"
SECTION 2.10 COOPERATION; SECURITIES ACCOUNT.
Article III is amended by inserting after Section 3.05 the following
new Sections:
"SECTION 3.06. COOPERATION
Prior to making any distribution under this Article III, the
Mortgagee shall consult with the Related Mortgagees to determine amounts payable
with respect to the Related Secured Obligations. The Mortgagee shall cooperate
with the Related Mortgagees and shall provide such information as shall be
reasonably requested by each Related Mortgagee to enable such Related Mortgagee
to determine amounts distributable under Article III of its Related Indenture.
"SECTION 3.07 SECURITIES ACCOUNT
In furtherance of the provisions of Section 3.03 of the Trust
Indenture as amended hereby, WTC agrees to act as an Eligible Institution under
the Trust Indenture in accordance with the provisions of the Trust Indenture (in
such capacity, the "SECURITIES INTERMEDIARY"). Except in its capacity as
Mortgagee, WTC waives any claim or lien against any Eligible Account it may
have, by operation of law or otherwise, for any amount owed to it by Owner. The
Securities Intermediary hereby agrees that, notwithstanding anything to the
contrary in the Trust Indenture, (i) any amounts to be held by the Mortgagee
pursuant to paragraphs (v) and (vi) of clause "Third" of Section 3.03 and any
investment earnings thereon or other Cash Equivalents will be credited to an
Eligible Account (the "Securities Account") for which it is a "securities
intermediary" (as defined in Section 8-102(a)(14) of the NY UCC) and the
Mortgagee is the "entitlement holder" (as defined in Section 8-102(a)(17) of the
NY UCC) of the "securities entitlement" (as defined in Section 8-102(a)(17) of
the NY UCC) with respect to each "financial asset" (as defined in Section
8-102(a)(9) of the NY UCC) credited to such Eligible Account, (ii) all such
amounts, Cash Equivalents and all other property acquired with cash credited to
the Securities Account will be credited to the Securities Account, (iii) all
items of property (whether cash, investment property, Cash Equivalents, other
investments, securities, instruments or other property) credited to the
Securities Account will be treated as a "financial asset" under Article 8 of the
NY UCC, (iv) its "securities intermediary's jurisdiction" (as defined in Section
8-110(e) of the NY UCC) with respect to the Securities Account is the State of
New York, and (v) all securities, instruments and other property in order or
registered from and credited to the Securities Account shall be payable to or to
the order of, or registered in the name of, the Securities Intermediary or shall
be indorsed to the Securities Intermediary or in blank, and in no case
whatsoever shall any financial asset credited to the Securities Account be
registered in the name of the Owner, payable to or to the order of the Owner or
specially indorsed to the Owner except to the extent the foregoing have been
specially endorsed by the Owner to the Securities Intermediary or in blank. The
Mortgagee agrees that it will hold (and will indicate clearly in its books and
records that it holds) its "securities entitlement" to the "financial assets"
credited to the Securities Account in trust for the benefit of the Note Holders
and each of the Indenture Indemnitees as set forth in the Trust Indenture. The
Owner acknowledges that, by reason of the Mortgagee being the "entitlement
holder" in respect of the Securities Account as provided above, the Mortgagee
shall have the sole right and discretion, subject only to the terms of the Trust
Indenture, to give all "entitlement orders" (as defined in Section 8-102(a)(8)
of the NY UCC) with respect to the Securities Account and any and all financial
assets and other property credited thereto to the exclusion of the Owner."
SECTION 2.11 POSSESSION, OPERATION AND USE, ETC.
Section 4.02(b) is amended by inserting in the last paragraph
thereof (i) after the words "each Note Holder" in the two instances that they
appear the following "and Related Note Holder" and (ii) after "Equipment Note"
the following: "and a Related Equipment Note, respectively,".
SECTION 2.12 REMEDIES.
Section 5.02(e) is amended to insert after "so long as" the
following: "the Class D Pass Through Trustee or".
[SECTION 2.13 INVESTMENT OF AMOUNTS HELD BY MORTGAGEE] [97-4 ONLY]
Section 6.06 is amended by inserting after the last sentence thereof
the following: "All Cash Equivalents held by the Mortgagee pursuant to this
Section 6.06 shall either be (a) registered in the name of, payable to the order
of, or specially endorsed to, the Mortgagee, or (b) held in an Eligible
Account." [Remaining sections to be renumbered in 97-4]
SECTION 2.13 INSTRUCTIONS OF MAJORITY; LIMITATIONS.
[ 97-4 only: (a)] Section 10.01(a) is amended to insert at the end
of clause (iv) of the first sentence the following:
"; PROVIDED, FURTHER, that without the consent of each holder of an
affected Related Equipment Note then outstanding, no such amendment,
waiver or modification of terms of, or consent under, any thereof
shall modify Section 3.03 or deprive any Related Note Holder of the
benefit of the Lien of this Trust Indenture on the Collateral, except
as provided in connection with the exercise of remedies under Article
V hereof."
[97-4 only: (b) Section 10.01(a) is further amended by inserting
after the parenthetical in clause (iii) of the proviso therein the following:
"or the other Indenture Indemnitees".]
SECTION 2.14 TERMINATION OF TRUST INDENTURE.
Section 11.01 is amended by deleting in the first sentence "under
the Participation Agreement or other Operative Agreement," and inserting in lieu
thereto "under the Participation Agreement, other Operative Agreement or any
Related Indenture,".
[97-4, 00-0, 00-0, 00-0, 00-0, 0000-0 ONLY: SECTION 2.14A
BANKRUPTCY.
Section 11.13 is amended to insert after the words "and Parts" the
following: "and to enforce any of its other rights or remedies".]
SECTION 2.15 ANNEX A.
(a) The definition of "Class D Issuance Date" is amended by deleting
"Pass Through Certificates" and substituting therefor "pass through
certificates".
(b) The definition of "Class D Pass Through Trust" is amended by
deleting "2000-2D" and replacing it with "2001-2D".
(c) The definition of "Debt Rate" is amended by inserting at the end
thereof the following: "(or, in case of the Series D Equipment Notes, as
specified in an amendment to the Trust Indenture)".
(d) The definition of "Indemnitee" is amended by inserting at the
end of clause (v) the following: "[2000-2 only: the Class D Escrow Agent, the
Class D Paying Agent,] the Class D Pass Through Trustee and each Related Note
Holder,".
(e) The definition of "Indenture Indemnitee" is amended by inserting
at the end of clause (v) the following: ", [2000-2 only: the Class D Escrow
Agent, the Class D Paying Agent,] the Class D Pass Through Trustee and each
Related Note Holder,".
(f) The definition of "Intercreditor Agreement" is amended by
inserting after "Issuance Date" the following: ", as amended by Amendment No. 1
thereto, dated as of the Class D Issuance Date,".
(g) The definition of "Payment Date" is amended by inserting at the
end thereof the following: "(or, in the case of the Series D Equipment Notes,
each June 1 and December 1, commencing on December 1, 2001)".
(h) The definition of "Pass Through Agreements" is amended to insert
after "Escrow Agreements," the following: "the Class D Pass Through Agreement,
the Class D Note Purchase Agreement, [2000-2 only: the Class D Deposit
Agreement, the Class D Escrow Agreement,]"
(i) The following new definitions shall be inserted in Annex A in
appropriate alphabetical order:
"CLASS D DEPOSIT AGREEMENT" means the Deposit Agreement (as defined
in the Class D Note Purchase Agreement); provided that for purposes of any
obligation of Owner, no amendment, modification or supplement to, or
substitution or replacement of, such Agreement shall be effective unless
consented to by Owner. [2000-2 only]
"CLASS D DEPOSITARY" means the Person acting as depositary under the
Class D Deposit Agreement. [2000-2 only]
"CLASS D ESCROW AGENT" means the Person acting as escrow agent under
the Class D Escrow Agreement. [2000-2 only]
"CLASS D ESCROW AGREEMENT" means the Escrow and Paying Agent
Agreement (as defined in the Class D Note Purchase Agreement); provided that for
purposes of any obligation of Owner, no amendment, modification or supplement
to, or substitution or replacement of, such Agreement shall be effective unless
consented to by Owner. [2000-2 only]
"CLASS D NOTE PURCHASE AGREEMENT" means the Note Purchase Agreement,
dated as of the Class D Issuance Date, among the Owner, the Class D Pass Through
Trustee, WTC, as subordination agent under the intercreditor agreements referred
to therein, Xxxxx Fargo Bank Northwest, National Association, as escrow agent,
and WTC, as paying agent; provided that for purposes of any obligation of Owner,
no amendment, modification or supplement to, or substitution or replacement of,
such Agreement shall be effective unless consented to by Owner.
"CLASS D PASS THROUGH TRUST AGREEMENT" means the Trust Supplement
No. 2001-2D, dated as of the Class D Issuance Date, together with the Basic Pass
Through Trust Agreement, between Owner and the Class D Pass Through Trustee;
provided that for purposes of any obligation of Owner, no amendment,
modification or supplement to, or substitution or replacement of, such Agreement
shall be effective unless consented to by Owner.
"CLASS D PASS THROUGH TRUSTEE" means WTC, in its capacity as pass
through trustee for the Class D Pass Through Trust.
"CLASS D PAYING AGENT" means the Person acting as paying agent under
the Class D Escrow Agreement. [2000-2 only]
"ELIGIBLE ACCOUNT" means an account established by and with an
Eligible Institution at the request of the Mortgagee, which institution agrees,
for all purposes of the UCC including Article 8 thereof, that (a) such account
shall be a "securities account" (as defined in Section 8-501 of the UCC), (b)
all property (other than cash) credited to such account shall be treated as a
"financial asset" (as defined in Section 8-102(9) of the UCC), (c) the Mortgagee
shall be the "entitlement holder" (as defined in Section 8-102(7) of the UCC) in
respect of such account, (d) it will comply with all entitlement orders issued
by the Mortgagee to the exclusion of the Owner, and (e) the "securities
intermediary jurisdiction" (under Section 8-110(e) of the UCC) shall be the
State of New York. [97-4 only]
"ELIGIBLE INSTITUTION" means the corporate trust department of (a)
Wilmington Trust Company, acting solely in its capacity as a "securities
intermediary" (as defined in Section 8-102(14) of the UCC), or (b) a depository
institution organized under the laws of the United States of America or any one
of the states thereof or the District of Columbia (or any U.S. branch of a
foreign bank), which has a long-term unsecured debt rating from Xxxxx'x and
Standard & Poor's of at least A-3 or its equivalent. [97-4 only]
"NY UCC" means the UCC as in effect on the date of determination in
the State of New York.
"OTHER RELATED EQUIPMENT NOTES" means Related Equipment Notes other
than the Same Series Related Equipment Notes.
"OTHER RELATED NOTE HOLDERS" means Related Note Holders of Other
Related Equipment Notes.
"RELATED EQUIPMENT NOTE" means, as of any date, a "Series D
Equipment Note" as defined in each Related Indenture, but only if as of such
date it is held by the "Subordination Agent" under the "Intercreditor
Agreement", as such terms are defined in such Related Indenture.
"RELATED INDENTURE" means each indenture under which a "Series D
Equipment Note" has been issued and purchased by the Class D Pass Through
Trustee, other than the Trust Indenture.
"RELATED MORTGAGEE" means the "Mortgagee" as defined in each Related
Indenture.
"RELATED NOTE HOLDER" means a registered holder of a Related
Equipment Note.
"RELATED SECURED OBLIGATIONS" means, as of any date, the outstanding
"Original Amount", as defined in each Related Indenture, of the Related
Equipment Notes issued under such Related Indenture and the accrued and unpaid
interest due thereon in accordance with such Related Indenture as of such date.
"SAME SERIES RELATED EQUIPMENT NOTES" means Related Equipment Notes
issued under the Operative Indentures (other than this Trust Indenture).
"SAME SERIES RELATED NOTE HOLDERS" means Related Note Holders of
Same Series Related Equipment Notes.
SECTION 2.16 ANNEX B.
Section D of Annex B is amended by inserting in paragraph (i) after
"each Note Holder," the following: "each Related Mortgagee, each Related Note
Holder,"
SECTION 2.17 TRUST INDENTURE SUPPLEMENT.
Trust Indenture and Mortgage Supplement No. 1 to the Trust Indenture
is amended by deleting in the first Whereas clause the following: "to the date
hereof".
SECTION 3. CERTAIN TERMS OF SERIES D EQUIPMENT NOTES. The Series D
Equipment Notes shall bear interest at the rate of 7.568% per annum. The
Original Amount of the Series D Equipment Notes shall be due and payable in full
on December 1, 2006 and shall not exceed the maximum amount as provided in the
Class D Note Purchase Agreement.
SECTION 4. CONSTRUCTION. Effective as of the date hereof, all
references in the Trust Indenture to the "Trust Indenture" shall be deemed to
refer to the Trust Indenture as amended by this Amendment, and the parties
hereto confirm their respective obligations thereunder. Except as otherwise
specified in this Amendment, the Trust Indenture shall remain in all respects
unchanged and in full force and effect.
SECTION 5. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the law of the State of New York.
SECTION 6. COUNTERPARTS. This Amendment may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
[Remainder of this page is blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective officers thereunto duly authorized, as of
the date and year first above written.
CONTINENTAL AIRLINES, INC.
By
--------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual
capacity, but solely as
Mortgagee
By
--------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Securities Intermediary
By
--------------------------------------
Name:
Title:
