[Execution copy]
TRUST SUPPLEMENT No. 2002-1G-2-S
Dated as of March 25, 2002
between
WILMINGTON TRUST COMPANY
as Trustee,
and
CONTINENTAL AIRLINES, INC.
to
PASS THROUGH TRUST AGREEMENT
Dated as of September 25, 1997
$194,522,000
Continental Airlines Pass Through Trust 2002-1G-2-S
6.563% Continental Airlines
Pass Through Certificates,
Series 2002-1G-2-S
TABLE OF CONTENTS
PAGE
ARTICLE I THE CERTIFICATES.....................................................2
Section 1.01. The Certificates.......................................2
ARTICLE II DEFINITIONS.........................................................4
Section 2.01. Definitions............................................4
ARTICLE III CERTIFICATES; DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS.....11
Section 3.01. Statements to Applicable Certificateholders...........11
Section 3.02. Special Payments Account..............................12
Section 3.03. Distributions from Special Payments Account...........13
ARTICLE IV DEFAULT 14
Section 4.01. Purchase Rights of Certificateholders.................14
Section 4.02. Amendment of Section 6.05 of the Basic Agreement......18
ARTICLE V THE TRUSTEE.........................................................19
Section 5.01. Acquisition of Trust Property.........................19
Section 5.02. [Intentionally Omitted]...............................19
Section 5.03. The Trustee...........................................20
Section 5.04. Representations and Warranties of the Trustee.........20
Section 5.05. Trustee Liens.........................................21
ARTICLE VI ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS......................21
Section 6.01. Amendment of Section 5.02 of the Basic Agreement......21
Section 6.02. Supplemental Agreements Without Consent of
Applicable Certificateholders.........................21
Section 6.03. Supplemental Agreements with Consent of
Applicable Certificateholders.........................22
Section 6.04. Consent of Holders of Certificates Issued under
Other Trusts..........................................22
ARTICLE VII TERMINATION OF TRUST..............................................23
Section 7.01. Termination of the Applicable Trust...................23
ARTICLE VIII MISCELLANEOUS PROVISIONS.........................................24
Section 8.01. Basic Agreement Ratified..............................24
Section 8.02. GOVERNING LAW.........................................24
Section 8.03. Execution in Counterparts.............................24
Section 8.04. Intention of Parties..................................24
This Trust Supplement No. 2002-1G-2-S, dated as of March 25, 2002
(herein called the "TRUST SUPPLEMENT"), between Continental Airlines, Inc., a
Delaware corporation (the "COMPANY"), and Wilmington Trust Company (the
"TRUSTEE"), to the Pass Through Trust Agreement, dated as of September 25, 1997,
between the Company and the Trustee (the "BASIC AGREEMENT").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Basic Agreement, unlimited as to the aggregate
principal amount of Certificates (unless otherwise specified herein, capitalized
terms used herein without definition having the respective meanings specified in
the Basic Agreement) which may be issued thereunder, has heretofore been
executed and delivered;
WHEREAS, the Company has obtained commitments from Boeing for the
delivery of certain Aircraft;
WHEREAS, as of the Transfer Date (as defined below), the Company
will have financed the acquisition of all or a portion of such Aircraft through
separate secured loan transactions, under which the Company owns such Aircraft
(collectively, the "OWNED AIRCRAFT");
WHEREAS, as of the Transfer Date, in the case of each Owned
Aircraft, the Company will have issued pursuant to an Indenture, on a recourse
basis, Equipment Notes to finance a portion of the purchase price of such Owned
Aircraft;
WHEREAS, as of the Transfer Date, the Related Trustee will assign,
transfer and deliver all of such trustee's right, title and interest to the
trust property held by the Related Trustee to the Trustee pursuant to the
Assignment and Assumption Agreement (as defined below);
WHEREAS, the Trustee, effective only, but automatically, upon
execution and delivery of the Assignment and Assumption Agreement, will be
deemed to have declared the creation of the Continental Airlines Pass Through
Trust 2002-1G-2-S (the "APPLICABLE TRUST") for the benefit of the Applicable
Certificateholders, and each Holder of Applicable Certificates outstanding as of
the Transfer Date, as the grantors of the Applicable Trust, by their respective
acceptances of such Applicable Certificates, will join in the creation of the
Applicable Trust with the Trustee;
WHEREAS, all Applicable Certificates (as defined below) deemed
issued by the Applicable Trust will evidence fractional undivided interests in
the Applicable Trust and will convey no rights, benefits or interests in respect
of any property other than the Trust Property except for those Applicable
Certificates to which an Escrow Receipt (as defined below) has been affixed;
WHEREAS, upon the execution and delivery of the Assignment and
Assumption Agreement, all of the conditions and requirements necessary to make
this Trust Supplement, when duly executed and delivered, a valid, binding and
legal instrument in accordance with its terms and for the purposes herein
expressed, have been done, performed and fulfilled, and the execution and
delivery of this Trust Supplement in the form and with the terms hereof have
been in all respects duly authorized;
WHEREAS, this Trust Supplement is subject to the provisions of the
Trust Indenture Act of 1939, as amended, and shall, to the extent applicable, be
governed by such provisions;
NOW THEREFORE, in consideration of the premises herein, it is agreed
between the Company and the Trustee as follows:
ARTICLE I
THE CERTIFICATES
Section 1.01. THE CERTIFICATES. The Applicable Certificates shall be
known as "6.563% Continental Airlines Pass Through Certificates, Series
2002-1G-2-S". Each Applicable Certificate represents a fractional undivided
interest in the Applicable Trust created hereby. The Applicable Certificates
shall be the only instruments evidencing a fractional undivided interest in the
Applicable Trust.
The terms and conditions applicable to the Applicable Certificates
are as follows:
(a) The aggregate principal amount of the Applicable Certificates
that shall be initially deemed issued under the Agreement shall be equal
to the aggregate principal amount of "Outstanding" pass through
certificates representing fractional undivided interests in the Related
Trust on the Transfer Date. Subject to the preceding sentence and Section
5.01 of this Trust Supplement and except for Applicable Certificates
authenticated and delivered under Sections 3.03, 3.04, 3.05 and 3.06 of
the Basic Agreement), no Applicable Certificates shall be authenticated
under the Agreement.
(b) The Regular Distribution Dates with respect to any payment of
Scheduled Payments means February 15, May 15, August 15 and November 15 of
each year, commencing on May 15, 2002, until payment of all of the
Scheduled Payments to be made under the Equipment Notes has been made.
(c) The Special Distribution Dates with respect to the Applicable
Certificates means any Business Day on which a Special Payment is to be
distributed pursuant to the Agreement.
(d) At the Escrow Agent's request under the Escrow Agreement, the
Trustee shall affix the corresponding Escrow Receipt to each Applicable
Certificate. In any event, any transfer or exchange of any Applicable
Certificate shall also effect a transfer or exchange of the related Escrow
Receipt. Prior to the Final Withdrawal Date, no transfer or exchange of
any Applicable Certificate shall be permitted unless the corresponding
Escrow Receipt is attached thereto and also is so transferred or
exchanged. By acceptance of any Applicable Certificate to which an Escrow
Receipt is attached, each Holder of such an Applicable Certificate
acknowledges and accepts the restrictions on transfer of the Escrow
Receipt set forth herein and in the Escrow Agreement.
(e) (i) The Applicable Certificates shall be in the form attached as
Exhibit A to the Related Pass Through Trust Supplement, with such
appropriate insertions, omissions, substitutions and other variations as
are required or permitted by the Related Pass Through Trust Agreement or
the Agreement, as the case may be, or as the Trustee may deem appropriate,
to reflect the fact that the Applicable Certificates are being issued
under the Agreement as opposed to under the Related Pass Through Trust
Agreement. Any Person acquiring or accepting an Applicable Certificate or
an interest therein will, by such acquisition or acceptance, be deemed to
represent and warrant to and for the benefit of the Company that either
(i) the assets of an employee benefit plan subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
of a plan subject to Section 4975 of the Internal Revenue Code of 1986, as
amended (the "CODE"), have not been used to purchase Applicable
Certificates or an interest therein or (ii) the purchase and holding of
Applicable Certificates or an interest therein is exempt from the
prohibited transaction restrictions of ERISA and the Code pursuant to one
or more prohibited transaction statutory or administrative exemptions.
(ii) The Applicable Certificates shall be Book-Entry Certificates
and shall be subject to the conditions set forth in the Letter of
Representations between the Company and the Clearing Agency attached as
Exhibit B to the Related Pass Through Trust Supplement.
(f) The "Participation Agreements" as defined in this Trust
Supplement are the "Note Purchase Agreements" referred to in the Basic
Agreement.
(g) The Applicable Certificates are subject to the Intercreditor
Agreement, the Deposit Agreement and the Escrow Agreement.
(h) The Applicable Certificates are entitled to the benefits of the
Primary Liquidity Facility and the Policy.
(i) The Responsible Party is the Company.
(j) The date referred to in clause (i) of the definition of the term
"PTC Event of Default" in the Basic Agreement is the Final Maturity Date.
(k) The "particular sections of the Note Purchase Agreement", for
purposes of clause (3) of Section 7.07 of the Basic Agreement, are Section
8.1 of each Participation Agreement.
(l) The Equipment Notes to be acquired and held in the Applicable
Trust, and the related Aircraft and Note Documents, are described in the
NPA.
ARTICLE II
DEFINITIONS
Section 2.01. DEFINITIONS. For all purposes of the Basic Agreement
as supplemented by this Trust Supplement, the following capitalized terms have
the following meanings (any term used herein which is defined in both this Trust
Supplement and the Basic Agreement shall have the meaning assigned thereto in
this Trust Supplement for purposes of the Basic Agreement as supplemented by
this Trust Supplement):
AGREEMENT: Means the Basic Agreement, as supplemented by this Trust
Supplement.
AIRCRAFT: Means each of the New Aircraft or Substitute Aircraft in
respect of which a Participation Agreement is entered into in accordance
with the NPA (or any substitute aircraft, including engines therefor,
owned by the Company and securing one or more Equipment Notes).
AIRCRAFT PURCHASE AGREEMENT: Has the meaning specified in the NPA.
APPLICABLE CERTIFICATE: Means any of the "Applicable Certificates"
issued by the Related Trust and that are "Outstanding" (as defined in the
Related Pass Through Trust Agreement) as of the Transfer Date (the
"TRANSFER DATE CERTIFICATES") and any Certificate issued in exchange
therefor or replacement thereof pursuant to the Agreement.
APPLICABLE CERTIFICATEHOLDER: Means the Person in whose name an
Applicable Certificate is registered on the Register for the Applicable
Certificates.
APPLICABLE TRUST: Has the meaning specified in the recitals hereto.
ASSIGNMENT AND ASSUMPTION AGREEMENT: Means the assignment and
assumption agreement substantially in the form of Exhibit C to the Related
Pass Through Trust Supplement executed and delivered in accordance with
Section 7.01 of the Related Trust Supplement.
BASIC AGREEMENT: Has the meaning specified in the first paragraph of
this Trust Supplement.
BOEING: Means The Boeing Company.
BUSINESS DAY: Means any day other than a Saturday, a Sunday or a day
on which commercial banks are required or authorized to close in Houston,
Texas, New York, New York, or, so long as any Applicable Certificate is
Outstanding, the city and state in which the Trustee, the Subordination
Agent or any Loan Trustee maintains its Corporate Trust Office or receives
and disburses funds, and, if any Series G-1 Equipment Notes (as defined in
the Intercreditor Agreement) or Series H Equipment Notes (as defined in
the Intercreditor Agreement) are outstanding, which is also a day for
trading by and between banks in the London interbank Eurodollar market.
CERTIFICATE: Has the meaning specified in the Intercreditor
Agreement.
CLASS: Has the meaning specified in the Intercreditor Agreement.
COMPANY: Has the meaning specified in the first paragraph of this
Trust Supplement.
CONTROLLING PARTY: Has the meaning specified in the Intercreditor
Agreement.
CUT-OFF DATE: Means the earlier of (a) the Delivery Period
Termination Date and (b) the date on which a Triggering Event occurs.
DELIVERY NOTICE: Has the meaning specified in the NPA.
DELIVERY PERIOD TERMINATION DATE: Has the meaning specified in the
Related Pass Through Trust Supplement.
DEPOSIT AGREEMENT: Means the Deposit Agreement dated as of March 25,
2002 relating to the Applicable Certificates between the Depositary and
the Escrow Agent, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
DEPOSIT MAKE-WHOLE PREMIUM: Has the meaning specified in the NPA.
DEPOSITARY: Means Credit Suisse First Boston, a banking institution
organized under the laws of Switzerland, acting through its New York
branch.
DEPOSITS: Has the meaning specified in the Deposit Agreement.
DISTRIBUTION DATE: Means any Regular Distribution Date or Special
Distribution Date as the context requires.
ESCROW AGENT: Means, initially, Xxxxx Fargo Bank Northwest, National
Association, and any replacement or successor therefor appointed in
accordance with the Escrow Agreement.
ESCROW AGREEMENT: Means the Escrow and Paying Agent Agreement dated
as of March 25, 2002 relating to the Applicable Certificates, among the
Escrow Agent, the Escrow Paying Agent, the Related Trustee (and after the
Transfer Date, the Trustee) and the Underwriters, as the same may be
amended, supplemented or otherwise modified from time to time in
accordance with its terms.
ESCROW PAYING AGENT: Means the Person acting as paying agent under
the Escrow Agreement.
ESCROW RECEIPT: Means the receipt substantially in the form annexed
to the Escrow Agreement representing a fractional undivided interest in
the funds held in escrow thereunder.
FINAL MATURITY DATE: Means August 15, 2013.
FINAL WITHDRAWAL: Has the meaning specified in the Escrow Agreement.
FINAL WITHDRAWAL DATE: Has the meaning specified in the Escrow
Agreement.
INDENTURE: Means each of the separate trust indentures and mortgages
relating to the Aircraft, each as specified or described in a Delivery
Notice delivered pursuant to the NPA or the related Participation
Agreement, in each case as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
INTERCREDITOR AGREEMENT: Means the Intercreditor Agreement dated as
of March 25, 2002 among the Related Other Trustee (and after the Transfer
Date, the Trustee), the Other Related Trustees (and after the Transfer
Date, the Other Trustees), the Primary Liquidity Provider, the primary
liquidity provider and the above-cap liquidity provider relating to the
Class G-1 Certificates, the Policy Provider and Wilmington Trust Company,
as Subordination Agent and as trustee thereunder, as amended, supplemented
or otherwise modified from time to time in accordance with its terms.
INVESTORS: Means the Underwriters, together with all subsequent
beneficial owners of the Applicable Certificates.
MAKE-WHOLE AMOUNT: Has the meaning specified in the Indentures.
NEW AIRCRAFT: Has the meaning specified in the NPA.
NOTE DOCUMENTS: Means the Equipment Notes with respect to the
Applicable Certificates and, with respect to any such Equipment Note, the
Indenture and the Participation Agreement relating to such Equipment Note.
NPA: Means the Note Purchase Agreement dated as of March 25, 2002
among the Related Trustee (and after the Transfer Date, the Trustee), the
Related Other Trustees (and after the Transfer Date, the Other Trustees),
the Company, the Escrow Agent, the Escrow Paying Agent and the
Subordination Agent, as the same may be amended, supplemented or otherwise
modified from time to time, in accordance with its terms.
OTHER AGREEMENTS: Means (i) the Basic Agreement as supplemented by
Trust Supplement No. 2002-1G-1-S dated as of the date hereof relating to
Continental Airlines Pass Through Trust 2002-1G-1-S, (ii) the Basic
Agreement as supplemented by Trust Supplement No. 2002-1H-S dated as of
the date hereof relating to Continental Airlines Pass Through Trust
2002-1H-S and (iii) the Basic Agreement as supplemented by Trust
Supplement No. 2002-1I-S dated as of the date hereof relating to
Continental Airlines Pass Through Trust 2002-1I-S.
OTHER TRUSTEES: Means the trustees under the Other Agreements, and
any successor or other trustee appointed as provided therein.
OTHER TRUSTS: Means the Continental Airlines Pass Through Trust
2002-1G-1-S, the Continental Airlines Pass Through Trust 2002-1H-S and the
Continental Airlines Pass Through Trust 2002-1I-S, created by the Other
Agreements.
OUTSTANDING: When used with respect to Applicable Certificates,
means, as of the date of determination, all Transfer Date Certificates,
and all other Applicable Certificates theretofore authenticated and
delivered under the Agreement, in each case except:
(i) Applicable Certificates theretofore canceled by the
Registrar or delivered to the Trustee or the Registrar for
cancellation;
(ii) Applicable Certificates for which money in the full
amount required to make the final distribution with respect to such
Applicable Certificates pursuant to Section 11.01 of the Basic
Agreement has been theretofore deposited with the Trustee in trust
for the Applicable Certificateholders as provided in Section 4.01 of
the Basic Agreement pending distribution of such money to such
Applicable Certificateholders pursuant to payment of such final
distribution; and
(iii) Applicable Certificates in exchange for or in lieu of
which other Applicable Certificates have been authenticated and
delivered pursuant to this Agreement.
OWNED AIRCRAFT: Has the meaning specified in the third recital to
this Trust Supplement.
PARTICIPATION AGREEMENT: Means each Participation Agreement entered
into by the Related Trustee pursuant to the NPA, as the same may be
amended, supplemented or otherwise modified in accordance with its terms.
POLICY: Means, with respect to the Applicable Certificates, Ambac
Certificate Guarantee Insurance Policy No. AB0543BE, together with the
Certificate Guaranty Insurance Policy Endorsement attached thereto, issued
as of the Closing Date, as amended, supplemented or otherwise modified
from time to time in accordance with its terms.
POLICY PROVIDER: Has the meaning specified in the Intercreditor
Agreement.
POLICY PROVIDER AGREEMENT: Has the meaning specified in the
Intercreditor Agreement.
POLICY PROVIDER DEFAULT: Has the meaning specified in the
Intercreditor Agreement.
POOL BALANCE: Means, as of any date, (i) the original aggregate face
amount of the "Applicable Certificates" as defined in the Related Pass
Through Trust Agreement, less (ii) the aggregate amount of all payments
made as of such date in respect of such Certificates, the Applicable
Certificates (as defined in the Related Pass Through Trust Agreement) or
the Deposits, other than payments made in respect of interest or premium,
Make-Whole Amount or Deposit Make-Whole Premium thereon or reimbursement
of any costs or expenses incurred in connection therewith. The Pool
Balance as of any date shall be computed after giving effect to any
special distribution with respect to unused Deposits, payment of principal
of the Equipment Notes, payments under the Policy (other than in respect
of interest on the Applicable Certificates) or payment with respect to
other Trust Property and the distribution thereof to be made on that date.
POOL FACTOR: Means, as of any Distribution Date, the quotient
(rounded to the seventh decimal place) computed by dividing (i) the Pool
Balance by (ii) the original aggregate face amount of the "Applicable
Certificates" as defined in the Related Pass Through Trust Agreement. The
Pool Factor 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, payment under the Policy
(other than in respect of interest on the Applicable Certificates) or
payment with respect to other Trust Property and the distribution thereof
to be made on that date.
PRIMARY LIQUIDITY FACILITY: Means, initially, the Revolving Credit
Agreement dated as of March 25, 2002 relating to the Applicable
Certificates, between the Primary Liquidity Provider and Wilmington Trust
Company, as Subordination Agent, as agent and trustee for the Applicable
Trust, and, from and after the replacement of such agreement pursuant to
the Intercreditor Agreement, the replacement primary liquidity facility
therefor, in each case as amended, supplemented or otherwise modified from
time to time in accordance with their respective terms.
PRIMARY LIQUIDITY PROVIDER: Means, initially, Landesbank
Hessen-Thuringen Girozentrale, a German public law institution duly
established under the Treaty on the Formation of a Joint Savings Banks
Organization Hessen-Thuringen, and any replacements or successors therefor
appointed in accordance with the Intercreditor Agreement.
PROSPECTUS SUPPLEMENT: Means the final Prospectus Supplement dated
March 11, 2002 relating to the offering of the Applicable Certificates and
the Class G-1 Certificates.
RATINGS CONFIRMATION: Has the meaning specified in the Intercreditor
Agreement.
REFERENCE AGENCY AGREEMENT: Has the meaning specified in the NPA.
RELATED OTHER PASS THROUGH TRUST AGREEMENTS: Means the "Other
Agreements" as defined in the Related Pass Through Trust Agreement.
RELATED OTHER TRUSTEES: Means the "Other Trustees" as defined in the
Related Pass Through Trust Agreement.
RELATED OTHER TRUSTS: Means "Other Trusts" as defined in the Related
Pass Through Trust Agreement.
RELATED PASS THROUGH TRUST AGREEMENT: Means the Means the Basic
Agreement as supplemented by the Trust Supplement No. 2002-1G-2-O dated as
of the date hereof (the "RELATED PASS THROUGH TRUST SUPPLEMENT"), relating
to the Continental Airlines Pass Through Trust 2002-1G-2-O and entered
into by the Company and the Related Trustee, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
RELATED TRUST: Means the Continental Pass Through Trust 2002-1G-2-O,
formed under the Related Pass Through Trust Agreement.
RELATED TRUSTEE: Means the trustee under the Related Pass Through
Trust Agreement.
SCHEDULED PAYMENT: Means, with respect to any Equipment Note, (i)
any payment of principal or interest on such Equipment Note (other than
any such payment which is not in fact received by the Trustee or any
Subordination Agent within five days of the date on which such payment is
scheduled to be made) or (ii) any payment of interest on the Applicable
Certificates with funds drawn under the Primary Liquidity Facility or any
payment of interest on or principal of the Applicable Certificates with
funds drawn under the Policy, which payment in any such case represents
the installment of principal on such Equipment Note at the stated maturity
of such installment, the payment of regularly scheduled interest accrued
on the unpaid principal amount of such Equipment Note, or both; PROVIDED,
HOWEVER, that any payment of principal, premium, Make-Whole Amount or
Deposit Make-Whole Premium, if any, or interest resulting from the
redemption or purchase of any Equipment Note shall not constitute a
Scheduled Payment.
SPECIAL PAYMENT: Means any payment (other than a Scheduled Payment)
in respect of, or any proceeds of, any Equipment Note, Collateral (as
defined in each Indenture) or Deposit Make-Whole Premium.
SUBSTITUTE AIRCRAFT: Has the meaning specified in the NPA.
TRANSFER DATE: Means the moment of execution and delivery of the
Assignment and Assumption Agreement by each of the parties thereto.
TRANSFER DATE CERTIFICATES: Has the meaning specified in the
definition of "Applicable Certificates".
TRIGGERING EVENT: Has the meaning assigned to such term in the
Intercreditor Agreement.
TRUST PROPERTY: Means (i) subject to the Intercreditor Agreement,
the Equipment Notes held as the property of the Applicable Trust, all
monies at any time paid thereon and all monies due and to become due
thereunder, (ii) funds from time to time deposited in the Certificate
Account and the Special Payments Account and, subject to the Intercreditor
Agreement, any proceeds from the sale by the Trustee pursuant to Article
VI of the Basic Agreement of any Equipment Note and (iii) all rights of
the Applicable Trust and the Trustee, on behalf of the Applicable Trust,
under the Intercreditor Agreement, the Escrow Agreement, the NPA, the
Primary Liquidity Facility and the Policy, including, without limitation,
all rights to receive certain payments thereunder, and all monies paid to
the Trustee on behalf of the Applicable Trust pursuant to the
Intercreditor Agreement, the Primary Liquidity Facility or the Policy,
PROVIDED that rights with respect to the Deposits or under the Escrow
Agreement, will not constitute Trust Property.
TRUST SUPPLEMENT: Has the meaning specified in the first paragraph
of this trust supplement.
TRUSTEE: Has the meaning specified in the first paragraph of this
Trust Supplement.
UNDERWRITERS: Means, collectively, Credit Suisse First Boston
Corporation, X.X. Xxxxxx Securities Inc., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Xxxxxxx Xxxxx Barney Inc. and Xxxxxx Xxxxxxx & Co.
Incorporated.
UNDERWRITING AGREEMENT: Means the Underwriting Agreement dated March
11, 2002 among the Underwriters, the Company and the Depositary, as the
same may be amended, supplemented or otherwise modified from time to time
in accordance with its terms.
ARTICLE III
CERTIFICATES; DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 3.01. STATEMENTS TO APPLICABLE CERTIFICATEHOLDERS. (a) On
each Distribution Date, the Trustee will include with each distribution to
Applicable Certificateholders of a Scheduled Payment or Special Payment, as the
case may be, a statement setting forth the information provided below (in the
case of a Special Payment, reflecting in part the information provided by the
Escrow Paying Agent under the Escrow Agreement). Such statement shall set forth
(per $1,000 face amount Applicable Certificate as to (ii), (iii), (iv) and (v)
below) the following information:
(i) the aggregate amount of funds distributed on such Distribution
Date under the Agreement and under the Escrow Agreement, indicating the
amount allocable to each source, including any portion thereof paid by the
Primary Liquidity Provider or the Policy Provider;
(ii) the amount of such distribution under the Agreement allocable
to principal and the amount allocable to premium, Make-Whole Amount or
Deposit Make-Whole Premium, if any;
(iii) the amount of such distribution under the Agreement allocable
to interest;
(iv) the amount of such distribution under the Escrow Agreement
allocable to interest;
(v) the amount of such distribution under the Escrow Agreement
allocable to unused Deposits, if any; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Applicable Certificates registered in the name
of a Clearing Agency, on the Record Date prior to each Distribution Date, the
Trustee will request from such Clearing Agency a securities position listing
setting forth the names of all Clearing Agency Participants reflected on such
Clearing Agency's books as holding interests in the Applicable Certificates on
such Record Date. On each Distribution Date, the Trustee will mail to each such
Clearing Agency Participant the statement described above and will make
available additional copies as requested by such Clearing Agency Participant for
forwarding to holders of interests in the Applicable Certificates.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the Trustee
shall furnish to each Person who at any time during such calendar year was an
Applicable Certificateholder of record a statement containing the sum of the
amounts determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and
(a)(v) above for such calendar year or, in the event such Person was an
Applicable Certificateholder of record during a portion of such calendar year,
for such portion of such year, and such other items as are readily available to
the Trustee and which an Applicable Certificateholder shall reasonably request
as necessary for the purpose of such Applicable Certificateholder's preparation
of its U.S. federal income tax returns. Such statement and such other items
shall be prepared on the basis of information supplied to the Trustee by the
Clearing Agency Participants and shall be delivered by the Trustee to such
Clearing Agency Participants to be available for forwarding by such Clearing
Agency Participants to the holders of interests in the Applicable Certificates
in the manner described in Section 3.01(a) of this Trust Supplement.
(c) If the aggregate principal payments scheduled for a Regular
Distribution Date prior to the Delivery Period Termination Date differ from the
amount thereof set forth for the Applicable Certificates on page S-42 of the
Prospectus Supplement, by no later than the 15th day prior to such Regular
Distribution Date, the Trustee (if the Related Trustee has not already done so)
shall mail written notice of the actual amount of such scheduled payments to the
Applicable Certificateholders of record as of a date within 15 Business Days
prior to the date of mailing.
(d) Promptly following (i) the Delivery Period Termination Date, if
there has been any change in the information set forth in clauses (y) and (z)
below from that set forth in page S-42 of the Prospectus Supplement, and (ii)
the date of any early redemption or purchase of, or any default in the payment
of principal or interest in respect of, any of the Equipment Notes held in the
Applicable Trust, or any Final Withdrawal, the Trustee (if the Related Trustee
has not already done so) shall furnish to Applicable Certificateholders of
record on such date a statement setting forth (x) the expected Pool Balances for
each subsequent Regular Distribution Date following the Delivery Period
Termination Date, (y) the related Pool Factors for such Regular Distribution
Dates and (z) the expected principal distribution schedule of the Equipment
Notes, in the aggregate, held as Trust Property at the date of such notice. With
respect to the Applicable Certificates registered in the name of a Clearing
Agency, on the Transfer Date, the Trustee (if the Related Trustee has not
already done so) will request from such Clearing Agency a securities position
listing setting forth the names of all Clearing Agency Participants reflected on
such Clearing Agency's books as holding interests in the "Applicable
Certificates" (as defined in the Related Pass Through Trust Agreement) on the
Delivery Period Termination Date. The Trustee (if the Related Trustee has not
already done so) will mail to each such Clearing Agency Participant the
statement described above and will make available additional copies as requested
by such Clearing Agency Participant for forwarding to holders of interests in
the Applicable Certificates.
(e) This Section 3.01 supersedes and replaces Section 4.03 of the
Basic Agreement, with respect to the Applicable Trust.
Section 3.02. SPECIAL PAYMENTS ACCOUNT. (a) The Trustee shall
establish and maintain on behalf of the Applicable Certificateholders a Special
Payments Account as one or more accounts, which shall be non-interest bearing
except as provided in Section 4.04 of the Basic Agreement. The Trustee shall
hold the Special Payments Account in trust for the benefit of the Applicable
Certificateholders and shall make or permit withdrawals therefrom only as
provided in the Agreement. On each day when one or more Special Payments are
made to the Trustee under the Intercreditor Agreement and upon the payment of
the Deposit Make-Whole Premium to the Trustee under the NPA, the Trustee, upon
receipt thereof, shall immediately deposit the aggregate amount of such Special
Payments in the Special Payments Account.
(b) This Section 3.02 supersedes and replaces Section 4.01(b) of the
Basic Agreement in its entirety, with respect to the Applicable Trust.
Section 3.03. DISTRIBUTIONS FROM SPECIAL PAYMENTS ACCOUNT. (a) On
each Special Distribution Date with respect to any Special Payment or as soon
thereafter as the Trustee has confirmed receipt of any Special Payments due on
the Equipment Notes held (subject to the Intercreditor Agreement) in the
Applicable Trust or realized upon the sale of such Equipment Notes or receipt of
the Deposit Make-Whole Premium, the Trustee shall distribute out of the Special
Payments Account the entire amount of such Special Payment deposited therein
pursuant to Section 3.02(a) of this Trust Supplement. There shall be so
distributed to each Applicable Certificateholder of record on the Record Date
with respect to such Special Distribution Date (other than as provided in
Section 7.01 of this Trust Supplement concerning the final distribution) by
check mailed to such Applicable Certificateholder, at the address appearing in
the Register, such Applicable Certificateholder's pro rata share (based on the
Fractional Undivided Interest in the Applicable Trust held by such Applicable
Certificateholder) of the total amount in the Special Payments Account on
account of such Special Payment, except that, with respect to Applicable
Certificates registered on the Record Date in the name of a Clearing Agency (or
its nominee), such distribution shall be made by wire transfer in immediately
available funds to the account designated by such Clearing Agency (or such
nominee).
(b) The Trustee shall, at the expense of the Company, cause notice
of each Special Payment to be mailed to each Applicable Certificateholder at his
address as it appears in the Register. In the event of redemption or purchase of
Equipment Notes held in the Applicable Trust, such notice shall be mailed not
less than 15 days prior to the Special Distribution Date for the Special Payment
resulting from such redemption or purchase, which Special Distribution Date
shall be the date of such redemption or purchase. In the case of any
distribution pursuant to Section 3.7(c) or Section 3.7(e) of the Intercreditor
Agreement, the Trustee will mail notice to the Applicable Certificateholders not
less than 15 days prior to the Special Distribution Date determined for such
distribution. In the event of the payment of a Deposit Make-Whole Premium by the
Company to the Trustee under the NPA, such notice shall be mailed, together with
the notice by the Escrow Paying Agent under Section 2.07 of the Escrow
Agreement, not less than 15 days prior to the Special Distribution Date for such
amount. In the case of any other Special Payments, such notice shall be mailed
as soon as practicable after the Trustee has confirmed that it has received
funds for such Special Payment, stating the Special Distribution Date for such
Special Payment which shall occur not less than 15 days after the date of such
notice and as soon as practicable thereafter. Notices mailed by the Trustee
shall set forth:
(i) the Special Distribution Date and the Record Date therefor
(except as otherwise provided in Section 7.01 of this Trust Supplement),
(ii) the amount of the Special Payment for each $1,000 face amount
Applicable Certificate and the amount thereof constituting principal,
premium, Make-Whole Amount or Deposit Make-Whole Premium, if any, and
interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a Regular
Distribution Date, the total amount to be received on such date for each
$1,000 face amount Applicable Certificate.
If the amount of (i) premium or Make-Whole Amount, if any, payable upon the
redemption or purchase of an Equipment Note or (ii) the Deposit Make-Whole
Premium, if any, has not been calculated at the time that the Trustee mails
notice of a Special Payment, it shall be sufficient if the notice sets forth the
other amounts to be distributed and states that any premium, Make-Whole Amount
or Deposit Make-Whole Premium received will also be distributed.
If any redemption of the Equipment Notes held in the Trust is
canceled, the Trustee, as soon as possible after learning thereof, shall cause
notice thereof to be mailed to each Applicable Certificateholder at its address
as it appears on the Register.
(b) This Section 3.03 supersedes and replaces Section 4.02(b) and
Section 4.02(c) of the Basic Agreement in their entirety, with respect to the
Applicable Trust.
Section 3.04. LIMITATION OF LIABILITY FOR PAYMENTS. Section 3.09 of
the Basic Agreement shall be amended, with respect to the Applicable Trust, by
deleting the phrase "the Owner Trustees or the Owner Participants" in the second
sentence thereof and adding in lieu thereof " the Primary Liquidity Provider or
the Policy Provider".
ARTICLE IV
DEFAULT
Section 4.01. PURCHASE RIGHTS OF CERTIFICATEHOLDERS. (a) At any time
after the occurrence and during the continuation of a Triggering Event, if the
Class G-1 Trustee is then the Controlling Party, each Applicable
Certificateholder (other than the Company or any of its Affiliates) shall have
the right to purchase, for the purchase price set forth in the Class G-1 Trust
Agreement, all, but not less than all, of the Class G-1 Certificates upon ten
days' written notice to the Class G-1 Trustee and each other Applicable
Certificateholder, PROVIDED that (i) if prior to the end of such ten-day period
any other Applicable Certificateholder (other than the Company or any of its
Affiliates) notifies such purchasing Applicable Certificateholder that such
other Applicable Certificateholder wants to participate in such purchase, then
such other Applicable Certificateholder (other than the Company or any of its
Affiliates) may join with the purchasing Applicable Certificateholder to
purchase all, but not less than all, of the Class G-1 Certificates pro rata
based on the Fractional Undivided Interest in the Applicable Trust held by each
such Applicable Certificateholder and (ii) if prior to the end of such ten-day
period any other Applicable Certificateholder fails to notify the purchasing
Applicable Certificateholder of such other Applicable Certificateholder's desire
to participate in such a purchase, then such other Applicable Certificateholder
shall lose its right to purchase the Class G-1 Certificates pursuant to this
Section 4.01(a).
(b) By acceptance of its Applicable Certificate, each Applicable
Certificateholder agrees that at any time after the occurrence and during the
continuation of a Triggering Event,
(i) if the Trustee is then the Controlling Party, each Class G-1
Certificateholder (other than the Company or any of its Affiliates) shall
have the right to purchase all, but not less than all, of the Applicable
Certificates upon ten days' written notice to the Trustee and each other
Class G-1 Certificateholder, PROVIDED that (A) if prior to the end of such
ten-day period any other Class G-1 Certificateholder (other than the
Company or any of its Affiliates) notifies such purchasing Class G-1
Certificateholder that such other Class G-1 Certificateholder wants to
participate in such purchase, then such other Class G-1 Certificateholder
(other than the Company or any of its Affiliates) may join with the
purchasing Class G-1 Certificateholder to purchase all, but not less than
all, of the Applicable Certificates pro rata based on the Fractional
Undivided Interest in the Class G-1 Trust held by each such Class G-1
Certificateholder and (B) if prior to the end of such ten-day period any
other Class G-1 Certificateholder fails to notify the purchasing Class G-1
Certificateholder of such other Class G-1 Certificateholder's desire to
participate in such a purchase, then such other Class G-1
Certificateholder shall lose its right to purchase the Applicable
Certificates pursuant to this Section 4.01(b)(i);
(ii) each Class H Certificateholder (other than the Company or any
of its Affiliates) shall have the right (which shall not expire upon any
purchase of the Applicable Certificates pursuant to clause (a) or (b)(i)
above) to purchase all, but not less than all, of the Applicable
Certificates and the Class G-1 Certificates upon ten days' written notice
to the Trustee, the Class G-1 Trustee and each other Class H
Certificateholder, PROVIDED that (A) if prior to the end of such ten-day
period any other Class H Certificateholder (other than the Company or any
of its Affiliates) notifies such purchasing Class H Certificateholder that
such other Class H Certificateholder wants to participate in such
purchase, then such other Class H Certificateholder (other than the
Company or any of its Affiliates) may join with the purchasing Class H
Certificateholder to purchase all, but not less than all, of the
Applicable Certificates and the Class G-1 Certificates pro rata based on
the Fractional Undivided Interest in the Class H Trust held by each such
Class H Certificateholder and (B) if prior to the end of such ten-day
period any other Class H Certificateholder fails to notify the purchasing
Class H Certificateholder of such other Class H Certificateholder's desire
to participate in such a purchase, then such other Class H
Certificateholder shall lose its right to purchase the Applicable
Certificates and the Class G-1 Certificates pursuant to this Section
4.01(b)(ii);
(iii) if Re-Issued Class H Certificates are issued, each Re-Issued
Class H Certificateholder (other than the Company or any of its
Affiliates) shall have the right (which shall not expire upon any purchase
of the Applicable Certificates pursuant to clause (a), (b)(i) or (b)(ii)
above) to purchase all, but not less than all, of the Applicable
Certificates and the Class G-1 Certificates upon ten days' written notice
to the Trustee, the Class G-1 Trustee and each other Re-Issued Class H
Certificateholder, PROVIDED that (A) if prior to the end of such ten-day
period any other Re-Issued Class H Certificateholder (other than the
Company or any of its Affiliates) notifies such purchasing Re-Issued Class
H Certificateholder that such other Re-Issued Class H Certificateholder
wants to participate in such purchase, then such other Re-Issued Class H
Certificateholder (other than the Company or any of its Affiliates) may
join with the purchasing Re-Issued Class H Certificateholder to purchase
all, but not less than all, of the Applicable Certificates and the Class
G-1 Certificates pro rata based on the Fractional Undivided Interest in
the Re-Issued Class H Trust held by each such Re-Issued Class H
Certificateholder and (B) if prior to the end of such ten-day period any
other Re-Issued Class H Certificateholder fails to notify the purchasing
Re-Issued Class H Certificateholder of such other Re-Issued Class H
Certificateholder's desire to participate in such a purchase, then such
other Re-Issued Class H Certificateholder shall lose its right to purchase
the Applicable Certificates and the Class G-1 Certificates pursuant to
this Section 4.01(b)(iii);
(iv) each Class I Certificateholder (other than the Company or any
of its Affiliates) shall have the right (which shall not expire upon any
purchase of the Applicable Certificates pursuant to clause (a), (b)(i),
(b)(ii) or (b)(iii) above) to purchase all, but not less than all, of the
Applicable Certificates, the Class G-1 Certificates, the Class H
Certificates (or, if issued, the Re-Issued Class H Certificates) upon ten
days' written notice to the Trustee, the Class G-1 Trustee, the Class H
Trustee (or, if any Re-Issued Class H Certificates have been issued, the
Re-Issued Class H Trustee) and each other Class I Certificateholder,
PROVIDED that (A) if prior to the end of such ten-day period any other
Class I Certificateholder (other than the Company or any of its
Affiliates) notifies such purchasing Class I Certificateholder that such
other Class I Certificateholder wants to participate in such purchase,
then such other Class I Certificateholder (other than the Company or any
of its Affiliates) may join with the purchasing Class I Certificateholder
to purchase all, but not less than all, of the Applicable Certificates,
the Class G-1 Certificates, the Class H Certificates (or, if issued, the
Re-Issued Class H Certificates) pro rata based on the Fractional Undivided
Interest in the Class I Trust held by each such Class I Certificateholder
and (B) if prior to the end of such ten-day period any other Class I
Certificateholder fails to notify the purchasing Class I Certificateholder
of such other Class I Certificateholder's desire to participate in such a
purchase, then such other Class I Certificateholder shall lose its right
to purchase the Applicable Certificates, the Class G-1 Certificates, the
Class H Certificates (or, if issued, the Re-Issued Class H Certificates)
pursuant to this Section 4.01(b)(iv); and
(v) each Class J Certificateholder, other than the Company or any of
its Affiliates, shall have the right (which shall not expire upon any
purchase of the Applicable Certificates pursuant to clause (a), (b)(i),
(b)(ii), (b)(iii) or (b)(iv) above) to purchase all, but not less than
all, of the Applicable Certificates, the Class G-1 Certificates, the Class
H Certificates (or, if issued, the Re-Issued Class H Certificates) and the
Class I Certificates upon ten days' written notice to the Trustee, the
Class G-1 Trustee, the Class H Trustee (or, if any Re-Issued Class H
Certificates have been issued, the Re-Issued Class H Trustee), the Class I
Trustee and each other Class J Certificateholder, PROVIDED that (A) if
prior to the end of such ten-day period any other Class J
Certificateholder (other than the Company or any of its Affiliates)
notifies such purchasing Class J Certificateholder that such other Class J
Certificateholder wants to participate in such purchase, then such other
Class J Certificateholder (other than the Company or any of its
Affiliates) may join with the purchasing Class J Certificateholder to
purchase all, but not less than all, of the Applicable Certificates, the
Class G-1 Certificates, the Class H Certificates (or, if issued, the
Re-Issued Class H Certificates) and the Class I Certificates pro rata
based on the Fractional Undivided Interest in the Class J Trust held by
each such Class J Certificateholder and (B) if prior to the end of such
ten-day period any other Class J Certificateholder fails to notify the
purchasing Class J Certificateholder of such other Class J
Certificateholder's desire to participate in such a purchase, then such
other Class J Certificateholder shall lose its right to purchase the
Applicable Certificates, the Class G-1 Certificates, the Class H
Certificates (or, if issued, the Re-Issued Class H Certificates) and the
Class I Certificates pursuant to this Section 4.01(b)(v).
(c) By acceptance of its Applicable Certificate, each Applicable
Certificateholder agrees that at any time after 180 days have elapsed since the
occurrence of a Triggering Event that is continuing, regardless of whether the
Applicable Certificateholders exercise their right to purchase the Class G-1
Certificates pursuant to Section 4.01(a), the Policy Provider, if it is then the
Controlling Party, shall have the right (except in the event of a Policy
Provider Default) to purchase all, but not less than all, of the Applicable
Certificates and the Class G-1 Certificates upon ten days' written notice to the
Trustee, the Class G-1 Trustee, the Applicable Certificateholders and the Class
G-1 Certificateholders.
The purchase price with respect to the Applicable Certificates shall
be equal to the Pool Balance of the Applicable Certificates, together with
accrued and unpaid interest thereon to the date of such purchase, without
premium, but including any other amounts then due and payable to the Applicable
Certificateholders under the Agreement, the Intercreditor Agreement, the Escrow
Agreement or any Note Document or on or in respect of the Applicable
Certificates; PROVIDED, HOWEVER, that no such purchase of Applicable
Certificates shall be effective unless the purchaser(s) shall certify to the
Trustee that contemporaneously with such purchase, such purchaser(s) is (are)
purchasing, pursuant to the terms of the Agreement and the Other Agreements
(and, if any Re-Issued Class H Certificates have been issued, the pass through
trust agreement relating thereto), (A) in the case of any purchase of the
Applicable Certificates pursuant to clause (b)(i) above, all of the Applicable
Certificates, (B) in the case of any purchase of the Applicable Certificates
pursuant to clause (c) above, all of the Applicable Certificates and the Class
G-1 Certificates, or (C) in all other cases, the Applicable Certificates, the
Class G-1 Certificates, the Class H Certificates (or, if issued, the Re-Issued
Class H Certificates) and the Class I Certificates that are senior to the
securities held by such purchaser(s). Each payment of the purchase price of the
Applicable Certificates referred to in the first sentence hereof shall be made
to an account or accounts designated by the Trustee and each such purchase shall
be subject to the terms of this Section 4.01. Each Applicable Certificateholder
agrees by its acceptance of its Applicable Certificate that (at any time after
the occurrence and during the continuation of a Triggering Event) it will, upon
payment from such Class G-1 Certificateholder(s), Class H Certificateholder(s)
(or, if any Re-Issued Class H Certificates have been issued, Re-Issued Class H
Certificateholder(s)), Class I Certificateholder(s), Class J
Certificateholder(s) or the Policy Provider, as the case may be, of the purchase
price set forth in the first sentence of this paragraph, (i) forthwith sell,
assign, transfer and convey to the purchaser(s) thereof (without recourse,
representation or warranty of any kind except for its own acts), all of the
right, title, interest and obligation of such Applicable Certificateholder in
the Agreement, the Escrow Agreement, the Deposit Agreement, the Intercreditor
Agreement, the Primary Liquidity Facility, the Policy, the NPA, the Note
Documents and all Applicable Certificates and Escrow Receipts held by such
Applicable Certificateholder (excluding all right, title and interest under any
of the foregoing to the extent such right, title or interest is with respect to
an obligation not then due and payable as respects any action or inaction or
state of affairs occurring prior to such sale) (and the purchaser shall assume
all of such Applicable Certificateholder's obligations under the Agreement, the
Escrow Agreement, the Deposit Agreement, the Intercreditor Agreement, the
Primary Liquidity Facility, the Policy, the NPA, the Note Documents and all such
Applicable Certificates and Escrow Receipts), (ii) if such purchase occurs after
a record date specified in Section 2.03 of the Escrow Agreement relating to the
distribution of unused Deposits and/or accrued and unpaid interest on Deposits
and prior to or on the related distribution date thereunder, forthwith turn over
to the purchaser(s) of its Applicable Certificate all amounts, if any, received
by it on account of such distribution, and (iii) if such purchase occurs after a
Record Date relating to any distribution and prior to or on the related
Distribution Date, forthwith turn over to the purchaser(s) of its Applicable
Certificate all amounts, if any, received by it on account of such distribution.
The Applicable Certificates will be deemed to be purchased on the date payment
of the purchase price is made notwithstanding the failure of the Applicable
Certificateholders to deliver any Applicable Certificates and, upon such a
purchase, (I) the only rights of the Applicable Certificateholders will be to
deliver the Applicable Certificates to the purchaser(s) and receive the purchase
price for such Applicable Certificates and (II) if the purchaser(s) shall so
request, such Applicable Certificateholder will comply with all the provisions
of Section 3.04 of the Basic Agreement to enable new Applicable Certificates to
be issued to the purchaser in such denominations as it shall request. All
charges and expenses in connection with the issuance of any such new Applicable
Certificates shall be borne by the purchaser thereof.
As used in this Section 4.01 and elsewhere in this Trust Supplement,
the terms "Class G-1 Certificate", "Class G-1 Certificateholder", "Class G-1
Trust", "Class G-1 Trust Agreement", "Class G-1 Trustee", "Class H Certificate",
"Class H Certificateholder", "Class H Trust", "Class H Trustee", "Class I
Certificate", "Class I Certificateholder", "Class I Trust", "Class I Trustee",
"Class J Certificate", "Class J Certificateholder", "Class J Trust", "Re-Issued
Class H Certificate", "Re-Issued Class H Certificateholder", "Re-Issued Class H
Trust" and "Re-Issued Class H Trustee" shall have the respective meanings
assigned to such terms in the Intercreditor Agreement.
(d) This Section 4.01 supersedes and replaces Section 6.01(b) of the
Basic Agreement, with respect to the Applicable Trust.
Section 4.02. AMENDMENT OF SECTION 6.05 OF THE BASIC AGREEMENT.
Section 6.05 of the Basic Agreement shall be amended, with respect to the
Applicable Trust, by deleting the phrase "and thereby annul any Direction given
by such Certificateholders or the Trustee to such Loan Trustee with respect
thereto," set forth in the first sentence thereof.
ARTICLE V
THE TRUSTEE
Section 5.01. ACQUISITION OF TRUST PROPERTY. (a) The Trustee is
hereby irrevocably authorized and directed to execute and deliver the Assignment
and Assumption Agreement on the date specified in Section 7.01 of the Related
Pass Through Trust Supplement, subject only to the satisfaction of the
conditions set forth in said Section 7.01. The Agreement (except only for this
sentence and the immediately preceding sentence hereof, which are effective upon
execution and delivery hereof) shall become effective upon the execution and
delivery of the Assignment and Assumption Agreement by the Trustee and the
Related Trustee, automatically and without any further signature or action on
the part of the Company and the Trustee, and shall thereupon constitute the
legal, valid and binding obligation of the parties hereto enforceable against
each of the parties hereto in accordance with its terms. Upon such execution and
delivery of the Assignment and Assumption Agreement, the Related Trust shall be
terminated, the Applicable Certificateholders shall receive beneficial interests
in the Applicable Trust in exchange for their interests in the Related Trust
equal to their respective beneficial interests in the Related Trust and the
"Outstanding" (as defined in the Related Pass Through Trust Agreement) pass
through certificates representing fractional undivided interests in the Related
Trust shall be deemed for all purposes of the Agreement, without further
signature or action of any party or Certificateholder, to be Certificates
representing the same Fractional Undivided Interests in the Trust and Trust
Property. By acceptance of its Applicable Certificate, each Applicable
Certificateholder consents to and ratifies such assignment, transfer and
delivery of the trust property of the Related Trust to the Trustee upon the
execution and delivery of the Assignment and Assumption Agreement. The
provisions of this Section 5.01(a) supersede and replace the provisions of
Section 2.02 of the Basic Agreement with respect to the Applicable Trust, and
all provisions of the Basic Agreement relating to Postponed Notes or Section
2.02 of the Basic Agreement shall not apply to the Applicable Trust.
(b) The Trustee, upon the execution and delivery of the Assignment
and Assumption Agreement, acknowledges its acceptance of all right, title and
interest in and to the Trust Property and declares that the Trustee holds and
will hold such right, title and interest for the benefit of all then present and
future Applicable Certificateholders, upon the trusts herein and in the Basic
Agreement set forth. By the acceptance of each Applicable Certificate issued to
it under the Related Pass Through Trust Agreement and deemed issued under the
Agreement, each Holder of any such Applicable Certificate as grantor of the
Applicable Trust thereby joins in the creation and declaration of the Applicable
Trust. The provisions of this Section 5.01(b) supersede and replace the
provisions of Section 2.03 of the Basic Agreement, with respect to the
Applicable Trust.
Section 5.02. [Intentionally Omitted]
Section 5.03. THE TRUSTEE. (a) Subject to Section 5.04 of this Trust
Supplement and Section 7.15 of the Basic Agreement, the Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Trust Supplement, the Deposit Agreement, the NPA or the
Escrow Agreement or the due execution hereof or thereof by the Company or the
other parties thereto (other than the Trustee), or for or in respect of the
recitals and statements contained herein or therein, all of which recitals and
statements are made solely by the Company, except that the Trustee hereby
represents and warrants that each of this Trust Supplement, the Basic Agreement,
each Applicable Certificate, the Intercreditor Agreement, the NPA and the Escrow
Agreement has been executed and delivered by one of its officers who is duly
authorized to execute and deliver such document on its behalf.
(b) Except as herein otherwise provided and except during the
continuation of an Event of Default in respect of the Applicable Trust created
hereby, no duties, responsibilities or liabilities are assumed, or shall be
construed to be assumed, by the Trustee by reason of this Trust Supplement other
than as set forth in the Agreement, and this Trust Supplement is executed and
accepted on behalf of the Trustee, subject to all the terms and conditions set
forth in the Agreement, as fully to all intents as if the same were herein set
forth at length.
Section 5.04. REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE. The
Trustee hereby represents and warrants, on the Transfer Date, that:
(a) the Trustee has full power, authority and legal right to receive
the Trust Property assigned by the Related Trustee, assume the obligations
under, and perform the Assignment and Assumption Agreement, this Trust
Supplement, the Intercreditor Agreement, the Escrow Agreement, the NPA and
the Note Documents to which it is a party and has taken all necessary
action to authorize such receipt, assumption and performance by it of this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the
NPA and the Note Documents to which it is a party;
(b) the receipt of the Trust Property under the Assignment and
Assumption Agreement and the performance by the Trustee of the Assignment
and Assumption Agreement, this Trust Supplement, the Intercreditor
Agreement, the Escrow Agreement, the NPA and the Note Documents to which
it is a party (i) will not violate any provision of any United States
federal law or the law of the state of the United States where it is
located governing the banking and trust powers of the Trustee or any
order, writ, judgment, or decree of any court, arbitrator or governmental
authority applicable to the Trustee or any of its assets, (ii) will not
violate any provision of the articles of association or by-laws of the
Trustee, and (iii) will not violate any provision of, or constitute, with
or without notice or lapse of time, a default under, or result in the
creation or imposition of any lien on any properties included in the Trust
Property pursuant to the provisions of any mortgage, indenture, contract,
agreement or other undertaking to which it is a party, which violation,
default or lien could reasonably be expected to have an adverse effect on
the Trustee's performance or ability to perform its duties hereunder or
thereunder or on the transactions contemplated herein or therein;
(c) the receipt of the Trust Property under the Assignment and
Assumption Agreement and the performance by the Trustee of the Assignment
and Assumption Agreement, this Trust Supplement, the Intercreditor
Agreement, the Escrow Agreement, the NPA and the Note Documents to which
it is a party will not require the authorization, consent, or approval of,
the giving of notice to, the filing or registration with, or the taking of
any other action in respect of, any governmental authority or agency of
the United States or the state of the United States where it is located
regulating the banking and corporate trust activities of the Trustee; and
(d) the Assignment and Assumption Agreement has been duly executed
and delivered by the Trustee and this Trust Supplement, the Intercreditor
Agreement, the Escrow Agreement, the NPA and the Note Documents to which
it is a party have been, or will be, as applicable, duly executed and
delivered by the Trustee and constitute, or will constitute, as
applicable, the legal, valid and binding agreements of the Trustee,
enforceable against it in accordance with their respective terms;
PROVIDED, HOWEVER, that enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and (ii) general principles of
equity.
Section 5.05. TRUSTEE LIENS. The Trustee in its individual capacity
agrees, in addition to the agreements contained in Section 7.17 of the Basic
Agreement, that it will at its own cost and expense promptly take any action as
may be necessary to duly discharge and satisfy in full any Trustee's Liens on or
with respect to the Trust Property which is attributable to the Trustee in its
individual capacity and which is unrelated to the transactions contemplated by
the Intercreditor Agreement or the NPA.
ARTICLE VI
ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS
Section 6.01. AMENDMENT OF SECTION 5.02 OF THE BASIC AGREEMENT.
Section 5.02 of the Basic Agreement shall be amended, with respect to the
Applicable Trust, by (i) replacing the phrase "of the Note Documents and of this
Agreement" set forth in paragraph (b) thereof with the phrase "of the Note
Documents, of the NPA and of this Agreement" and (ii) replacing the phrase "of
this Agreement and any Note Document" set forth in the last paragraph of Section
5.02 with the phrase "of this Agreement, the NPA and any Note Document".
Section 6.02. SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF APPLICABLE
CERTIFICATEHOLDERS. Without limitation of Section 9.01 of the Basic Agreement,
under the terms of, and subject to the limitations contained in, Section 9.01 of
the Basic Agreement, the Company may (but will not be required to), and the
Trustee (subject to Section 9.03 of the Basic Agreement) shall, at the Company's
request, at any time and from time to time, (i) enter into one or more
agreements supplemental to the Escrow Agreement, the NPA, the Deposit Agreement,
the Reference Agency Agreement, the Policy or the Policy Provider Agreement for
any of the purposes set forth in clauses (1) through (9) of such Section 9.01,
and (without limitation of the foregoing or Section 9.01 of the Basic Agreement)
(a) the reference in the introductory paragraph of Section 9.01 of the Basic
Agreement to a "Liquidity Facility" shall be deemed to refer to "the Primary
Liquidity Facility", (b) clauses (2) and (3) of such Section 9.01 shall also be
deemed to include the Company's obligations under (in the case of clause (2)),
and the Company's rights and powers conferred by (in the case of clause (3)),
the NPA, the Reference Agency Agreement, the Policy or the Policy Provider
Agreement, and (c) references in clauses (4), (6) and (7) of such Section 9.01
to "any Intercreditor Agreement or any Liquidity Facility" shall also be deemed
to refer to "the Intercreditor Agreement, the Primary Liquidity Facility, the
Escrow Agreement, the Reference Agency Agreement, the NPA, the Deposit
Agreement, the Policy or the Policy Provider Agreement", (ii) enter into one or
more agreements supplemental to the Agreement, the Intercreditor Agreement, the
Reference Agency Agreement or the NPA to provide for the formation of the
Re-Issued Class H Trust, the issuance of the Re-Issued Class H Certificates, the
purchase by the Re-Issued Class H Trust of Equipment Notes and other matters
incidental thereto or otherwise contemplated by Section 2.01(b) of the Basic
Agreement; PROVIDED that (x) a Ratings Confirmation for the Applicable
Certificates and the Class G-1 Certificates shall have been obtained with
respect to such agreements and (y) the Company shall have certified to the
Trustee and to the Other Trustees that such agreements shall not materially and
adversely affect the Applicable Certificateholders or the Class G-1
Certificateholders and (iii) enter into one or more agreements supplemental to
the Agreement to provide for the formation of a Class J Trust, the issuance of
Class J Certificates, the purchase by the Class J Trust of Equipment Notes and
other matters incidental thereto or otherwise contemplated by Section 2.01(b) of
the Basic Agreement.
Section 6.03. SUPPLEMENTAL AGREEMENTS WITH CONSENT OF APPLICABLE
CERTIFICATEHOLDERS. Without limitation of Section 9.02 of the Basic Agreement,
the provisions of Section 9.02 of the Basic Agreement shall apply to agreements
or amendments for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Escrow Agreement, the Deposit
Agreement, the Primary Liquidity Facility, the Reference Agency Agreement, the
NPA, the Policy or the Policy Provider Agreement or modifying in any manner the
rights and obligations of the Applicable Certificateholders under the Escrow
Agreement, the Deposit Agreement, the Primary Liquidity Facility, the Reference
Agency Agreement, the NPA, the Policy or the Policy Provider Agreement; PROVIDED
that the provisions of Section 9.02(1) of the Basic Agreement shall be deemed to
include reductions in any manner of, or delay in the timing of, any receipt by
the Applicable Certificateholders of payments upon the Deposits.
Section 6.04. CONSENT OF HOLDERS OF CERTIFICATES ISSUED UNDER OTHER
TRUSTS. Notwithstanding any provision in Section 6.02 or Section 6.03 of this
Trust Supplement to the contrary, no amendment or modification of Section 4.01
of this Trust Supplement shall be effective unless the trustee for each Class of
Certificates affected by such amendment or modification shall have consented
thereto.
ARTICLE VII
TERMINATION OF TRUST
Section 7.01. TERMINATION OF THE APPLICABLE TRUST. (a) The
respective obligations and responsibilities of the Company and the Trustee with
respect to the Applicable Trust shall terminate upon the distribution to all
Applicable Certificateholders and the Trustee of all amounts required to be
distributed to them pursuant to the Agreement and the disposition of all
property held as part of the Trust Property; PROVIDED, HOWEVER, that in no event
shall the Applicable Trust continue beyond one hundred ten (110) years following
the date of the execution of this Trust Supplement.
Notice of any termination, specifying the Distribution Date upon
which the Applicable Certificateholders may surrender their Applicable
Certificates to the Trustee for payment of the final distribution and
cancellation, shall be mailed promptly by the Trustee to Applicable
Certificateholders not earlier than the 60th day and not later than the 15th day
next preceding such final Distribution Date specifying (A) the Distribution Date
upon which the proposed final payment of the Applicable Certificates will be
made upon presentation and surrender of Applicable Certificates at the office or
agency of the Trustee therein specified, (B) the amount of any such proposed
final payment, and (C) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Applicable Certificates at the office or agency of the
Trustee therein specified. The Trustee shall give such notice to the Registrar
at the time such notice is given to Applicable Certificateholders. Upon
presentation and surrender of the Applicable Certificates in accordance with
such notice, the Trustee shall cause to be distributed to Applicable
Certificateholders such final payments.
In the event that all of the Applicable Certificateholders shall not
surrender their Applicable Certificates for cancellation within six months after
the date specified in the above-mentioned written notice, the Trustee shall give
a second written notice to the remaining Applicable Certificateholders to
surrender their Applicable Certificates for cancellation and receive the final
distribution with respect thereto. No additional interest shall accrue on the
Applicable Certificates after the Distribution Date specified in the first
written notice. In the event that any money held by the Trustee for the payment
of distributions on the Applicable Certificates shall remain unclaimed for two
years (or such lesser time as the Trustee shall be satisfied, after sixty days'
notice from the Company, is one month prior to the escheat period provided under
applicable law) after the final distribution date with respect thereto, the
Trustee shall pay to each Loan Trustee the appropriate amount of money relating
to such Loan Trustee and shall give written notice thereof to the Company.
(b) The provisions of this Section 7.01 supersede and replace the
provisions of Section 11.01 of the Basic Agreement in its entirety, with respect
to the Applicable Trust.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. BASIC AGREEMENT RATIFIED. Except and so far as herein
expressly provided, all of the provisions, terms and conditions of the Basic
Agreement are in all respects ratified and confirmed; and the Basic Agreement
and this Trust Supplement shall be taken, read and construed as one and the same
instrument. All replacements of provisions of, and other modifications of the
Basic Agreement set forth in this Trust Supplement are solely with respect to
the Applicable Trust.
Section 8.02. GOVERNING LAW. THE AGREEMENT AND THE APPLICABLE
CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK. THIS SECTION 8.02 SUPERSEDES AND REPLACES SECTION 12.05
OF THE BASIC AGREEMENT, with respect to the Applicable Trust.
Section 8.03. EXECUTION IN COUNTERPARTS. This Trust Supplement may
be executed in any number of counterparts, each of which shall be an original,
but such counterparts shall together constitute but one and the same instrument.
Section 8.04. INTENTION OF PARTIES. The parties hereto intend that
the Applicable Trust be classified for U.S. federal income tax purposes as a
grantor trust under Subpart E, Part I of Subchapter J of the Internal Revenue
Code of 1986, as amended, and not as a trust or association taxable as a
corporation or as a partnership. Each Applicable Certificateholder and Investor,
by its acceptance of its Applicable Certificate or a beneficial interest
therein, agrees to treat the Applicable Trust as a grantor trust for all U.S.
federal, state and local income tax purposes. The powers granted and obligations
undertaken pursuant to the Agreement shall be so construed so as to further such
intent.
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Trust Supplement to be duly executed by their respective officers thereto duly
authorized, as of the day and year first written above.
CONTINENTAL AIRLINES, INC.
By:
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Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee
By:
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Name:
Title:
