SCHEDULE
to the
MASTER AGREEMENT
dated as of March 25, 2002
between
XXXXXXX XXXXX CAPITAL SERVICES, INC. and WILMINGTON TRUST COMPANY, a Delaware
a corporation organized under corporation, in its capacity as
the laws of the State of Delaware Subordination Agent on behalf of
("PARTY A") Trustee under the Pass Through Trust
Agreement dated as of September 25,
1997 between Wilmington Trust
Company and Continental Airlines,
Inc., as supplemented by the
Supplement No. 2002-1G-1-O dated as
of March 25, 2002 ("PARTY B")
PART 1
TERMINATION PROVISIONS
In this Agreement:
(A) SPECIFIED ENTITY. None.
(B) SPECIFIED TRANSACTION. Specified Transaction will have the meaning
specified in Section 14.
(C) EVENTS OF DEFAULT. The "Events of Default" set forth in Section 5(a) will
not apply to Party B but will apply to Party A (subject to clause (d)
below).
(D) CROSS DEFAULT. The "Cross Default" provision of Section 5(a)(vi) will not
apply.
(E) CREDIT EVENT UPON MERGER. The "Credit Event Upon Merger" provisions of
Section 5(b)(iv) will not apply.
(F) ILLEGALITY, TAX EVENT AND TAX EVENT UPON MERGER. The "Illegality"
provisions of Section 5(b)(i), the "Tax Event" provisions of Section
5(b)(ii), and the "Tax Event Upon Merger" provisions of Section 5(b)(iii)
will not apply to Party B but will apply to Party A.
(G) AUTOMATIC EARLY TERMINATION. The "Automatic Early Termination" provision
of Section 6(a) will not apply.
(H) PAYMENTS ON EARLY TERMINATION. Section 6(e) is amended by deleting the
existing provisions thereof and substituting the following: "The amount
payable on any early termination of a Transaction evidenced by a
Confirmation shall be an amount equal to the "Termination Amount" (as
defined in such Confirmation) and such amount shall only be payable by
Party A."
(I) TERMINATION CURRENCY. "Termination Currency" means United States Dollars.
(J) ADDITIONAL TERMINATION EVENT. Additional Termination Event will not apply
unless otherwise specified in a Confirmation.
(K) LIMITATIONS ON CONDITIONS PRECEDENT. Notwithstanding Section 2(a) as
incorporated in any Confirmation, the obligation of Party A to make each
payment specified in such Confirmation, so long as it shall remain in
effect, shall not be subject to any conditions precedent, and, without
limiting the foregoing, Party A agrees that it will make each such payment
without offset, counterclaim or defense.
PART 2
TAX REPRESENTATIONS
(A) PAYER TAX REPRESENTATIONS. For the purpose of Section 3(e), Party A and
Party B each make the following representation:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e)) to be
made by it to the other party under this Agreement. In making this
representation, it may rely on:
(i) the accuracy of any representation made by the other party pursuant
to Section 3(f);
(ii) the satisfaction of the agreement of the other party contained in
Section 4(a)(i) or 4(a)(iii) and the accuracy and effectiveness of
any document provided by the other party pursuant to Section 4(a)(i)
or 4(a)(iii); and
(iii) the satisfaction of the agreement of the other party contained in
Section 4(d); provided that it shall not be a breach of this
representation where reliance is placed on clause (ii), and the
other party does not deliver a form or document under Section
4(a)(iii) by reason of material prejudice to its legal or commercial
position.
(B) PAYEE REPRESENTATIONS. For the purpose of Section 3(f) of this Agreement,
Party A and Party B make the following representations, respectively:
(i) The following representation applies to Party A:
Party A is a corporation organized under the laws of Delaware.
(ii) The following representation applies to Party B:
Party B is a corporation organized under the laws of Delaware.
PART 3
AGREEMENT TO DELIVER DOCUMENTS
EACH PARTY AGREES TO DELIVER THE FOLLOWING DOCUMENTS AS APPLICABLE:
For the purpose of Section 4(a)(ii), documents to be delivered are:
PARTY REQUIRED TO FORM/DOCUMENT/ DATE BY WHICH TO BE COVERED BY SECTION 3(D)
DELIVER DOCUMENTS CERTIFICATE DELIVERED REPRESENTATION
Party A and Party B Evidence reasonably Upon execution of this Yes
satisfactory to the other Agreement and, if
party as to the names, requested, upon execution
true signatures and of any Confirmation.
authority of the officer
or officials signing this
Agreement or any
Confirmation on its behalf
Party A A copy of the annual Upon request, as soon as Yes
report for Party A publicly available
containing audited or
certified financial
statements for the most
recently ended financial
year
Party A Opinion of counsel to Upon execution of this No
Party A reasonably Agreement
satisfactory in form and
substance to Party B
attached hereto as Exhibit B
PART 4
MISCELLANEOUS
(A) ADDRESSES FOR NOTICES. For the purpose of Section 12(a):
(i) Address for notices or communications to Party A :
Address: XXXXXXX XXXXX WORLD HEADQUARTERS
4 WORLD FINANCIAL XXXXXX, 00XX XXXXX
XXX XXXX, XXX XXXX 00000
Attention: SWAP GROUP
Facsimile No.: 000 000-0000
Telephone No.: 000 000-0000
(For all purposes.)
Additionally, a copy of all notices pursuant to Sections 5, 6, and 7 as well as
any changes to counterparty's address, telephone number or facsimile number
should be sent to:
GMI COUNSEL
XXXXXXX XXXXX WORLD HEADQUARTERS
4 WORLD FINANCIAL CENTER , 00XX XXXXX
XXX XXXX, XXX XXXX 00000
ATTENTION: SWAPS LEGAL
FACSIMILE NO.: 000 000-0000
Telephone number for oral confirmation of receipt of facsimile in legible form:
000-000-0000
Designated responsible employee for the purposes of Section 12(a)(iii):
Xxxxxxxxxxx Xxxxxx
(ii) Address for notices or communications to Party B:
Wilmington Trust Company
One Xxxxxx Square
0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
(For all purposes.)
(B) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(C) MULTIBRANCH PARTY. For the purpose of Section 10(c):
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(D) CALCULATION AGENT. The Calculation Agent is Party A, unless otherwise
agreed in a Confirmation in relation to the relevant Transaction, and
unless an Event of Default with respect to Party A has occurred and is
continuing, in which case Party B may appoint at its own expense one of
the following five entities as Calculation Agent: The Chase Manhattan
Bank, Credit Suisse First Boston, Bank of America, N.A., Deutsche Bank
A.G. or Citibank, N.A.
(E) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
Party A: Guarantee of Xxxxxxx Xxxxx & Co., Inc. ("ML & Co.") in the form
attached hereto as Exhibit A.
(F) CREDIT SUPPORT PROVIDER.
Credit Support Provider means in relation to Party A: ML & Co.
Credit Support Provider means in relation to Party B: None.
(G) GOVERNING LAW. This Agreement and each Confirmation will be governed by
and construed in accordance with the laws of the State of New York.
(H) NETTING OF PAYMENTS. The netting of payments provision set forth in
Section 2(c) will not apply to any Transaction.
(I) AFFILIATE. Affiliate will have the meaning specified in Section 14.
PART 5
OTHER PROVISIONS
(A) DEFINITIONS. Unless otherwise specified in a Confirmation, this Agreement
and each Transaction between the parties are subject to the 2000 ISDA
Definitions and Annex to the 2000 ISDA Definitions (June 2000 Version) as
published by the International Swap Dealers Association, Inc. (collectively, the
"Definitions"), and will be governed in all relevant respects by the provisions
set forth in the Definitions, without regard to any amendment to the Definitions
subsequent to the date hereof. The provisions of the Definitions are
incorporated by reference in and shall be deemed a part of this Agreement,
except that references in the Definitions to a "Swap Transaction" shall be
deemed references to a "Transaction" for purposes of this Agreement. In the
event of any inconsistency between the provisions of this Agreement and the
Definitions, this Agreement will prevail. "Intercreditor Agreement" as used in
this Agreement shall mean the Intercreditor Agreement dated as of March 25, 2002
among Wilmington Trust Company, as Trustee under the Continental Airlines Pass
Through Trust 2002-1G-1, Continental Airlines Pass Through Trust 2002-1G-2,
Continental Airlines Pass Through Trust 2002-1H and Continental Airlines Pass
Through Trust 0000-0X, Xxxxxxxxxx Xxxxxx-Xxxxxxxxx Girozentrale, as Class G-1
Primary Liquidity Provider and Class G-2 Primary Liquidity Provider, Xxxxxxx
Xxxxx Capital Services, Inc., as Class G-1 Above-Cap Liquidity Provider, Ambac
Assurance Corporation, as Policy Provider, and Wilmington Trust Company, as
Subordination Agent and Trustee.
(B) INDEPENDENT RELIANCE. Except as provided in Section 3 of this Agreement,
Party A and Party B each represents to the other that it is entering into this
Agreement and will enter into each Transaction in reliance upon such tax,
accounting, regulatory, legal, and financial advice as it deems necessary and
not upon any view expressed by the other.
(C) WAIVER OF JURY TRIAL. Each party hereby waives its respective right to jury
trial with respect to any litigation arising under, or in connection with, this
Agreement or any Transaction.
(D) NON-PETITION. Party A agrees that it will not, prior to the Termination Date
of any Confirmation and the date that is one year and one day following the
final payment of the Certificates (as defined in the Intercreditor Agreement),
acquiesce, petition or otherwise invoke or cause, or join in invoking or
causing, Party B or any other person or entity to invoke the process of any
governmental authority for the purpose of commencing or sustaining a case
(whether voluntary or involuntary) against Party B under any bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of Party B or any
substantial part of its property or ordering the winding-up or liquidation of
the affairs of Party B.
(E) WAIVER OF CONTRACTUAL RIGHT OF SETOFF. Notwithstanding any provision of this
Agreement as incorporated in any Confirmation or any other existing or future
agreement, each party irrevocably waives any and all contractual rights it may
have to set off, net, recoup or otherwise withhold or suspend or condition
payment or performance of any obligation between the two parties hereunder
against any obligations between the two parties under any other agreements or
otherwise.
(F) AMENDMENTS. This Agreement is hereby further amended as follows:
(1) Section 2(b) is hereby amended by the insertion of the following at
the end thereof after the word "change": "provided that if such new
account shall not be in the same jurisdiction having the same power
to tax as the original account, the party not changing its account
shall not be obliged to pay any greater amounts and shall not
receive less as a result of such change than would have been the
case if such change had not taken place."
(2) Section 2(d) is amended by adding thereto a new final sentence
reading as follows: "Anything in this Section 2(d) to the contrary
notwithstanding, Party B shall not be obligated to make any payment
under this Section 2(d) to Party A".
(3) Section 6 is amended as follows:
(A) The first paragraph in Section 6(b)(ii) shall be amended by
adding the words "(so long as the transferee's obligations
under this Agreement are supported by a Credit Support
Document in such form as shall permit each Rating Agency (as
defined in the Intercreditor Agreement) to issue a Ratings
Confirmation (as defined in the Intercreditor Agreement)
unless such transferee meets the Threshold Rating (as defined
in the Intercreditor Agreement)) or, at its own expense, to
arrange within such 20 days for one or more Replacement
Above-Cap Liquidity Providers (as defined in the Intercreditor
Agreement) to issue and deliver a Replacement Above-Cap
Liquidity Facility (as defined in the Intercreditor Agreement)
to Party B" after the words "its Offices or Affiliates"
appearing in the penultimate line thereof;
(B) The second paragraph in Section 6(b)(ii) shall be deleted in
its entirety;
(C) Section 6(b) shall be amended by adding thereto a new final
sentence reading as follows: "Anything in this Section 6(b) to
the contrary notwithstanding, the following provisions will
apply in the case of an Illegality under Section 5(b)(i): (1)
within 10 days after it gives notice under Section 6(b)(i),
the Affected Party will use all reasonable efforts to transfer
all of its rights and obligations under this Agreement in
respect of the Affected Transactions to another of its Offices
or Affiliates (so long as the transferee's obligations under
this Agreement are supported by a Credit Support Document in
such form as shall permit each Rating Agency (as defined in
the Intercreditor Agreement) to issue a Ratings Confirmation
(as defined in the Intercreditor Agreement) unless such
transferee meets the Threshold Rating (as defined in the
Intercreditor Agreement)) so that such Illegality ceases to
exist; (2) if the Affected Party is not able to make such a
transfer within such 10 days, such 10th day (or if such 10th
day is not a Business Day (as defined in the Intercreditor
Agreement), the next succeeding Business Day) will be deemed
to have been effectively designated as an Early Termination
Date in respect of all Affected Transactions; and (3) the
provisions of Section 6(b)(iv) will not apply to such
Illegality."; and
(D) Section 6(d)(ii) shall be amended by deleting the existing
provisions thereof and substituting therefor the following:
"On any Early Termination Date, Party A will make a
termination payment to Party B in an amount equal to the
Termination Amount (as defined in the Confirmation) for such
Early Termination Date for credit to the Class G-1 Above-Cap
Collateral Account (as defined in, and as provided for Section
3.6(f) of, the Intercreditor Agreement) to be applied as set
forth in such Section 3.6(f) plus the amount of all other
unpaid sums due and payable by Party A under this Agreement on
or prior to such Early Termination Date and upon such payment,
the Transaction evidenced by the Confirmation dated the date
hereof shall terminate."
(4) Section 7 is amended by adding thereto a new penultimate sentence
reading as follows: "Any purported transfer under Section 6(b) or
this Section 7 shall require Ratings Confirmation (as defined in the
Intercreditor Agreement)".
(5) Section 9(b) is amended by adding thereto a new sentence reading as
follows: "In addition, no amendment, modification or waiver in
respect of this Agreement will be effective unless Ratings
Confirmation (as defined in the Intercreditor Agreement) is
received".
(G) LIMITATION OF LIABILITY. The obligations of Party B under this Agreement,
and in respect of the Transaction evidenced by any Confirmation, are expressly
limited to the extent of funds, if any, made available for such payment to Party
B under, and in accordance with, the priorities of payments set forth in
Sections 2.4(b), 3.2, 3.3 and 3.6 of the Intercreditor Agreement. No recourse
under any obligation, covenant or agreement of Party B contained in this
Agreement or any Confirmation shall be had against any incorporator,
stockholder, agent, affiliate, officer, employee or trustee of Party B, as such,
by the enforcement of any assessment or by any legal or equitable proceeding, by
virtue of any statute or otherwise; it being expressly agreed and understood
that the agreements of Party B contained in this Agreement or any Confirmation
are solely trust obligations of Party B and that no personal liability
whatsoever shall attach to or be incurred by the incorporators, stockholders,
agents, affiliates, officers, employees or trustees of Party B, as such, or any
of them, under or by reason of any of the obligations, covenants or agreements
of Party B contained in this Agreement or any Confirmation and that any and all
personal liability of every such incorporator, stockholder, agent, affiliate,
officer, employee or trustee of Party B for breaches by Party B of any such
obligation, covenant or agreement, which liability may arise either at common
law or at equity, by statute or constitution, or otherwise, is hereby expressly
waived as a condition of and in consideration for the execution of this
Agreement; PROVIDED, HOWEVER, that nothing in this paragraph shall relieve any
of the foregoing persons from any liability which any such person may otherwise
have for his/her or its gross negligence or willful misconduct.
(H) ELIGIBLE CONTRACT PARTICIPANT. For purposes of Section 3, the following
shall be added, immediately following paragraph (f) thereto:
(i) It is an "eligible contract participant" as such term is defined in
Section 1a(12) of the Commodity Exchange Act, as amended (7 U.S.C.
1a(12)) and this Agreement and the Confirmation is subject to
individual negotiation.
(ii) It has entered into this Agreement (including each Transaction
evidenced hereby) in conjunction with its line of business
(including financial intermediation services) or the financing of
its business.
(I) SINGLE TRANSACTION. Party A and Party B each agree and acknowledge that the
only Transaction that is or will be governed by this Agreement is the
Transaction evidenced by the Confirmation dated the date hereof.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
XXXXXXX XXXXX CAPITAL SERVICES, INC.
By:
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Name:
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Title:
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Date:
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WILMINGTON TRUST COMPANY,
in its capacity as Subordination Agent on
behalf of the Trustee under the Class G-1
Trust Agreement
By:
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Name:
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Title:
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Date:
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