AMENDMENT NO. 1 TO
REFERENCE AGENCY AGREEMENT
AMENDMENT NO. 1, dated as of May 9, 2003 (this "AMENDMENT"), to Reference
Agency Agreement, dated as of December 6, 2002 (the "REFERENCE AGENCY
AGREEMENT"), among CONTINENTAL AIRLINES, INC., a Delaware corporation (the
"COMPANY"), WILMINGTON TRUST COMPANY, a Delaware banking corporation ("WTC"), as
Trustee under the Indenture referred to below, and WTC, as reference agent under
the Reference Agency Agreement (the "REFERENCE AGENT"). Certain terms used
herein have the defined meanings referred to in Section 1 hereof.
W I T N E S S E T H :
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WHEREAS, in connection with the issuance and sale of the Company's Floating
Rate Secured Notes due 2007 pursuant to the Original Indenture, the Company, the
Trustee and the Reference Agent entered into the Reference Agency Agreement to
provide, among other things, for the determination of the Debt Rate with respect
to such Securities; and
WHEREAS, concurrently with the execution and delivery of this Amendment,
the Company is entering into the Amended and Restated Indenture, dated as of the
date hereof (the "INDENTURE"), with WTC, as Trustee, Xxxxxx Xxxxxxx Capital
Services Inc., as Liquidity Provider, and MBIA Insurance Corporation, as Policy
Provider, providing for the issuance of Company's Floating Rate Secured
Subordinated Notes due 2007 (the "SUBORDINATED SECURITIES"); and
WHEREAS, in connection with the issuance and sale of the Subordinated
Securities pursuant to the Indenture, the Company has requested that the
Reference Agency Agreement be amended to provide, among other things, for the
determination of the Subordinated Debt Rate with respect to such Subordinated
Securities; and
WHEREAS, the Company and the Initial Purchaser have entered into the
Subordinated Security Purchase Agreement, which provides for the issuance of the
Subordinated Securities; and
WHEREAS, the Indenture provides that the Notes to be issued thereunder bear
interest at a rate per annum based on LIBOR, as determined pursuant to the
Reference Agency Agreement.
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 or pursuant to the Reference Agency Agreement,
as amended by this Amendment, have such respective defined meanings.
SECTION 2. AMENDMENTS. Effective as of the date hereof, the Reference
Agency Agreement is hereby amended as follows:
Section 2.1 PREAMBLE. The following in the second "Whereas" clause shall be
deleted: "(the "INDENTURE")".
Section 2.2 DEFINITIONS. Section 1 is amended as follows:
(a) The first sentence is amended to delete "Indenture" and replace it with
the following: "Amended and Restated Indenture, dated as of May 9, 2003 (the
"INDENTURE"), among the Company, WTC, as Trustee, Xxxxxx Xxxxxxx Capital
Services Inc., as Liquidity Provider, and MBIA Insurance Corporation, as Policy
Provider".
(b) The definition of "Interest Payment Date" is amended and restated to
read in its entirety as follows:
"'INTEREST PAYMENT DATE' means March 6, June 6, September 6 and
December 6 of each year so long as any Note is outstanding (commencing on
March 6, 2003 in the case of the Securities and June 6, 2003 in the case of
the Subordinated Securities), PROVIDED that if any such day is not a
Business Day, then the relevant Interest Payment Date shall be the next
succeeding Business Day."
(c) Clause (i) of the definition of "Interest Period" is amended and
restated to read in its entirety as follows:
"(i) in the case of the first Interest Period for the Securities, the
period commencing on (and including) the Closing Date or, in the case of
the first Interest Period for the Subordinated Securities, the period
commencing on (and including) the Subordinated Closing Date, and ending on
(but excluding) the first Interest Payment Date following such date and".
Section 2.3 CERTAIN REFERENCES TO SECURITIES. Each reference to
"Securities" in Section 3, Section 7, Section 8 and Section 9, is deleted and
replaced with "Notes".
Section 2.4 DUTIES OF REFERENCE AGENT.
(a) The first sentence of Section 6(b) prior to clause (i) thereof is
amended and restated to read in its entirety as follows:
"(b) For the purpose of calculating the Debt Rate payable on the
Securities or the Subordinated Debt Rate payable on the Subordinated
Securities, "LIBOR" for each Interest Period that commences after (x) in
the case of the Securities, the Closing Date (it being understood that the
Debt Rate for the Interest Period commencing on the Closing Date shall be
determined pursuant to the Purchase Agreement) or (y) in the case of the
Subordinated Securities, the Subordinated Closing Date (it being understood
that the Subordinated Debt Rate for the Interest Period commencing on the
Subordinated Closing Date shall be determined pursuant to the Subordinated
Security Purchase Agreement), shall mean the rate determined in accordance
with the following provisions:".
(b) Section 6(c) is amended and restated to read in its entirety as
follows:
"(c) As soon as practicable after 11:00 a.m. (London time) on each
Interest Rate Determination Date, the Reference Agent will calculate the
Debt Rate and the Subordinated Debt Rate for such Interest Period, which
shall be applicable to the Securities and the Subordinated Securities,
respectively. The Reference Agent's determination of LIBOR, the Debt Rate
and the Subordinated Debt Rate (in the absence of negligence, willful
default, bad faith or manifest error) shall be conclusive and binding upon
all parties."
(c) Section 6(d) is amended to insert after "the Debt Rate" the following:
", the Subordinated Debt Rate".
Section 2.5 MISCELLANEOUS. Section 13(a) is amended to delete the phrase
"or the Debt Rate" and to replace it with ", the Debt Rate or the Subordinated
Debt Rate".
SECTION 3. CONSTRUCTION. All references in the Reference Agency Agreement
to the "Agreement" shall be deemed to refer to the Reference Agency Agreement as
amended by this Amendment, and the parties hereto confirm their respective
obligations thereunder. The Reference Agency Agreement is hereby ratified by the
parties hereto and shall remain in all respects unchanged (except as expressly
provided in this Amendment) and in full force and effect.
SECTION 4. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the law of the State of New York.
SECTION 5. 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.
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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
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Name:
Title:
WILMINGTON TRUST COMPANY, as
Reference Agent
By
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Name:
Title:
WILMINGTON TRUST COMPANY, as
Trustee
By
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Name:
Title:
