TRUST SUPPLEMENT No. 2005-ERJ1 Dated as of September 22, 2005 between WILMINGTON TRUST COMPANY, as Trustee, and CONTINENTAL AIRLINES, INC. to PASS THROUGH TRUST AGREEMENT Dated as of September 25, 1997 Continental Airlines Pass Through Trust 2005-ERJ1...
EXECUTION
COPY
TRUST
SUPPLEMENT No. 2005-ERJ1
Dated
as
of September 22, 2005
between
WILMINGTON
TRUST COMPANY,
as
Trustee,
and
CONTINENTAL
AIRLINES, INC.
to
PASS
THROUGH TRUST AGREEMENT
Dated
as
of September 25, 1997
$311,010,000
Continental
Airlines Pass Through Trust 2005-ERJ1
9.798%
Continental Airlines
Pass
Through Certificates,
Series
2005-ERJ1
This
Trust Supplement No. 2005-ERJ1, dated as of September 22, 2005 (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 wishes to lease certain Aircraft from the relevant Owner
Trustees;
WHEREAS,
in the case of each Aircraft, the related Owner Trustee, acting on behalf
of the
related Owner Participant, will issue pursuant to an Indenture, on a
non-recourse basis, one series of Equipment Notes in order to finance the
debt
portion of the purchase price of such Aircraft;
WHEREAS,
the Trustee hereby declares the creation of this Continental Airlines Pass
Through Trust 2005-ERJ1 (the “Applicable
Trust”)
for
the benefit of the Applicable Certificateholders, and the initial Applicable
Certificateholders as the grantors of the Applicable Trust, by their respective
acceptances of the Applicable Certificates, join in the creation of the
Applicable Trust with the Trustee;
WHEREAS,
all Certificates to be 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 Certificates to which an Escrow Receipt has been affixed;
WHEREAS,
the Escrow Agent and the Underwriter have contemporaneously herewith entered
into an Escrow Agreement with the Escrow Paying Agent pursuant to which the
Underwriter has delivered to the Escrow Agent the proceeds from the sale
of the
Applicable Certificates, to the extent not used to purchase Equipment Notes
on
the Issuance Date, and have irrevocably instructed the Escrow Agent to withdraw
and pay funds from such proceeds upon request and proper certification by
the
Trustee to purchase Equipment Notes as the Aircraft are financed under the
NPA
(as hereinafter defined) from time to time prior to the Delivery Period
Termination Date;
WHEREAS,
the Escrow Agent on behalf of the Applicable Certificateholders has
contemporaneously herewith entered into a Deposit Agreement with the Depositary
under which the Deposits referred to therein will be made and from which
it will
withdraw funds to allow the Trustee to purchase Equipment Notes from time
to
time prior to the Delivery Period Termination Date;
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WHEREAS,
pursuant to the terms and conditions of the Basic Agreement as supplemented
by
this Trust Supplement (the “Agreement”)
and
the NPA, upon the financing of an Aircraft, the Trustee on behalf of the
Applicable Trust, using funds withdrawn under the Escrow Agreement (or, if
financed on the Issuance Date, using a portion of the proceeds of the sale
of
the Applicable Certificates), shall purchase one or more Equipment Notes
having
the same interest rate as, and final maturity date not later than the final
Regular Distribution Date of, the Applicable Certificates issued hereunder
and
shall hold such Equipment Notes in trust for the benefit of the Applicable
Certificateholders;
WHEREAS,
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;
and
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.
There
is hereby created a series of Certificates to be issued under the Agreement
to
be distinguished and known as “9.798% Continental Airlines Pass Through
Certificates, Series 2005-ERJ1” (hereinafter defined as the “Applicable
Certificates”).
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
authenticated under the Agreement (except for Applicable Certificates
authenticated and delivered pursuant to Sections 3.03, 3.04, 3.05 and 3.06
of the Basic Agreement) is $311,010,000.
(b) The
Regular Distribution Dates with respect to any payment of Scheduled Payments
means the 1st
day of
each month, commencing on October 1, 2005 until payment of all of the Scheduled
Payments to be made under the Equipment Notes has been made.
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(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 hereto as Exhibit A.
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 each Owner Participant and 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 hereto as Exhibit B.
(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 Liquidity
Facility.
(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.
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(k) The
“particular sections of the Note Purchase Agreement”, for purposes of clause (3)
of Section 7.07 of the Basic Agreement, are Section 9.1 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:
Has the
meaning specified in the recitals hereto.
Aircraft:
Means
each of the Aircraft (as defined in the NPA) or Substitute Aircraft in respect
of which a Participation Agreement is to be or is, as the case may be, entered
into in accordance with the NPA (or any substitute aircraft, including engines
therefor, leased to the Company and securing one or more Equipment
Notes).
Aircraft
Purchase Agreement:
Means
the “Purchase Agreement” as defined in the NPA.
Applicable
Certificate:
Has the
meaning specified in Section 1.01 of this Trust Supplement.
Applicable
Certificateholder:
Means
the Person in whose name an Applicable Certificate is registered on the Register
for the Applicable Certificates.
Applicable
Closing Date:
Has the
meaning specified in Section 5.01(b) of this Trust Supplement.
Applicable
Participation Agreement:
Has the
meaning specified in Section 5.01(b) of this Trust Supplement.
Applicable
Trust:
Has the
meaning specified in the recitals hereto.
Basic
Agreement:
Has the
meaning specified in the first paragraph of this Trust Supplement.
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
4
York,
Salt Lake City, Utah or, so long as any Applicable Certificate is Outstanding,
the city and state in which the Trustee or any Loan Trustee maintains its
Corporate Trust Office or receives and disburses funds.
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:
Means
the earlier of (a) May 31, 2006, or, if the Equipment Notes relating to all
of
the Aircraft (or Substitute Aircraft in lieu thereof) have not been purchased
by
the Trustee on or prior to such date due to any reason beyond the control
of the
Company and not occasioned by the Company’s fault or negligence, August 31, 2006
and (b) the date on which Equipment Notes issued with respect to all of the
Aircraft (or Substitute Aircraft in lieu thereof) have been purchased by
the
Pass Through Trustee in accordance with the NPA.
Deposit
Agreement:
Means
the Deposit Agreement dated as of September 22, 2005 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.
Depositary:
Means
Citibank, N.A., a national banking association.
Deposits:
Has the
meaning specified in the Deposit Agreement.
Distribution
Date:
Means
any Regular Distribution Date or Special Distribution Date as the context
requires.
Embraer:
Means
Embraer-Empresa
Brasileira de Aeronáutica S.A.
Escrow
Agent:
Means,
initially, ▇▇▇▇▇ 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 September 22, 2005 relating
to
the Applicable Certificates, among the Escrow Agent, the Escrow Paying Agent,
the Trustee and Underwriter, 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.
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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
October 1, 2022.
Final
Withdrawal:
Has the
meaning specified in the Escrow Agreement.
Final
Withdrawal Date:
Has the
meaning specified in the Escrow Agreement.
Final
Withdrawal Notice:
Has the
meaning specified in Section 5.02 of this Trust Supplement.
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 (2005-ERJ1) dated as of September 22, 2005 among
the
Trustee, the Liquidity 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 Underwriter together with all subsequent beneficial owners of the Applicable
Certificates.
Liquidity
Facility:
Means,
initially, the Revolving Credit Agreement (2005-ERJ1) dated as of September
22,
2005 relating to the Applicable Certificates, between Landesbank
Baden-Württemberg 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 liquidity
facility therefor, as amended, supplemented or otherwise modified from time
to
time in accordance with its terms.
Liquidity
Provider:
Means,
initially, Landesbank Baden-Württemberg, a bank established in Germany as a
public law institution with legal capacity (Rechtsfähige
Anstalt des Öffentlichen Rechts),
and
any replacement or successor therefor appointed in accordance with the
Intercreditor Agreement.
Note
Documents:
Means
the Equipment Notes with respect to the Applicable Certificates and, with
respect to any such Equipment Note, the related Indenture, Participation
Agreement and Lease.
Notice
of Purchase Withdrawal:
Has the
meaning specified in the Deposit Agreement.
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NPA:
Means
the Note Purchase Agreement dated as of September 22, 2005 among the Trustee,
the Company, the Escrow Agent, the Escrow Paying Agent and the Subordination
Agent, providing for, among other things, the purchase of Equipment Notes
by the
Trustee on behalf of the Applicable Trust, as the same may be amended,
supplemented or otherwise modified from time to time, in accordance with
its
terms.
Participation
Agreement:
Means
each Participation Agreement entered into or to be entered into, as the case
may
be, by the Trustee pursuant to the NPA, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its
terms.
Pool
Balance:
Means,
as of any date, (i) the original aggregate face amount of the Applicable
Certificates less (ii) the aggregate amount of all payments made in respect
of
such Applicable Certificates or in respect of Deposits other than payments
made
in respect of interest or premium thereon or reimbursement of any costs or
expenses incurred in connection therewith. The Pool Balance as of any
Distribution Date shall be computed after giving effect to any special
distribution with respect to unused Deposits, payment of principal of the
Equipment Notes or payment with respect to other Trust Property 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. 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 or
payments with respect to other Trust Property and the distribution thereof
to be
made on that date.
Prospectus
Supplement:
Means
the final Prospectus Supplement dated September 14, 2005 relating to the
offering of the Applicable Certificates.
Ratings
Confirmation:
Has the
meaning specified in the Intercreditor Agreement.
Scheduled
Closing Date:
Has the
meaning specified in the NPA.
Special
Payment:
Means
any payment (other than a Scheduled Payment) in respect of, or any proceeds
of,
any Equipment Note or Trust Indenture Estate (as defined in each
Indenture).
Substitute
Aircraft:
Has the
meaning specified in the NPA.
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
7
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 and the Liquidity
Facility, 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 or the Liquidity Facility, provided
that
rights with respect to the Deposits or under the Escrow Agreement, except
for
the right to direct withdrawals for the purchase of Equipment Notes to be
held
herein, will not constitute Trust Property.
Trust
Supplement:
Has the
meaning specified in the first paragraph of this trust supplement.
Underwriter:
Means
Citigroup Global Markets Inc.
Underwriting
Agreement:
Means
the Underwriting Agreement dated September 14, 2005 among the Underwriter,
the
Company, the Depositary and Embraer, as the same may be amended, supplemented
or
otherwise modified from time to time in accordance with its terms.
ARTICLE
III
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;
(ii) the
amount of such distribution under the Agreement allocable to principal and
the
amount allocable to 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;
8
(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 calendar
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 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) 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
pages S-32 through S-36 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 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 Delivery Period Termination 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 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.
9
(d) 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,
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, 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 11.01 of the Basic Agreement 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 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 11.01 of the Basic Agreement),
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(ii) the
amount of the Special Payment for each $1,000 face amount Applicable Certificate
and the amount thereof constituting principal, 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 premium, if any, payable upon the redemption or purchase of an
Equipment Note 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 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.
ARTICLE
IV
DEFAULT
Section
4.01. 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. Delivery
of Documents; Delivery Dates.
(a) The
Trustee is hereby directed (i) to execute and deliver the Intercreditor
Agreement, the Escrow Agreement and the NPA on or prior to the Issuance Date,
each in the form delivered to the Trustee by the Company, and (ii) subject
to
the respective terms thereof, to perform its obligations thereunder. Upon
request of the Company and the satisfaction or waiver of the closing conditions
specified in the Underwriting Agreement, the Trustee shall execute, deliver,
authenticate, issue and sell Applicable Certificates in authorized denominations
equaling in the aggregate the amount set forth, with respect to the Applicable
Trust, in Schedule I to the Underwriting Agreement evidencing the entire
ownership interest in the Applicable Trust, which amount equals the maximum
aggregate principal amount of Equipment Notes which may be purchased by the
Trustee pursuant to the NPA. Except as provided in Sections 3.03, 3.04, 3.05
and
3.06 of the Basic Agreement, the Trustee shall not execute, authenticate
or deliver Applicable Certificates in excess of the aggregate amount
specified in this paragraph. The provisions of this
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Section 5.01(a)
supersede and replace the first sentence of Section 3.02(a) of the Basic
Agreement, with respect to the Applicable Trust.
(b) On
or
after the Issuance Date, the Company may deliver from time to time to the
Trustee a Delivery Notice relating to one or more Equipment Notes. After
receipt
of a Delivery Notice and in any case no later than one Business Day prior
to a
Scheduled Closing Date as to which such Delivery Notice relates (the
“Applicable
Closing Date”),
the
Trustee shall (as and when specified in the Delivery Notice) instruct the
Escrow
Agent to provide a Notice of Purchase Withdrawal to the Depositary requesting
(A) the withdrawal of one or more Deposits on the Applicable Closing Date
in
accordance with and to the extent permitted by the terms of the Escrow Agreement
and the Deposit Agreement and (B) the payment of all, or a portion, of such
Deposit or Deposits in an amount equal in the aggregate to the purchase price
of
such Equipment Notes to or on behalf of the Owner Trustee issuing such Equipment
Notes, all as shall be described in the Delivery Notice; provided
that, if
the Issuance Date is an Applicable Closing Date, the Trustee shall not so
instruct the Escrow Agent, and the purchase price of such Equipment Notes
shall
be paid from a portion of the proceeds of the sale of the Applicable
Certificates. The Trustee shall (as and when specified in such Delivery Notice),
subject to the conditions set forth in Section 2 of the NPA, enter into and
perform its obligations under the Participation Agreement specified in such
Delivery Notice (the “Applicable
Participation Agreement”)
and
cause such certificates, documents and legal opinions relating to the Trustee
to
be duly delivered as required by the Applicable Participation Agreement.
If at
any time prior to the Applicable Closing Date, the Trustee receives a notice
of
postponement pursuant to Section 1(e) or 1(f) of the NPA, then the Trustee
shall
give the Depositary (with a copy to the Escrow Agent) a notice of cancellation
of such Notice of Purchase Withdrawal relating to such Deposit or Deposits
on
such Applicable Closing Date. Upon satisfaction of the conditions specified
in
the NPA and the Applicable Participation Agreement, the Trustee shall purchase
the applicable Equipment Notes with the proceeds of the withdrawals of one
or
more Deposits made on the Applicable Closing Date in accordance with the
terms
of the Deposit Agreement and the Escrow Agreement (or, if the Issuance Date
is
the Applicable Closing Date with respect to such Applicable Participation
Agreement, from a portion of the proceeds of the sale of the Applicable
Certificates; provided,
that,
if any portion of such proceeds is not used to purchase Equipment Notes by
3:30
p.m., New York time, on such date, the Trustee (on behalf of the Investors)
shall immediately (but in no event later than 4:00 p.m., New York time, on
such
date) deposit such unused proceeds with the Depositary (in Federal immediately
available funds by wire transfer) in accordance with the Deposit Agreement
and
such deposit or deposits shall constitute a "Deposit" or "Deposits" (as defined
therein) for all purposes thereunder). The purchase price of such Equipment
Notes shall equal the principal amount of such Equipment Notes. Amounts
withdrawn from such Deposit or Deposits in excess of the purchase price of
the
Equipment Notes or to the extent not applied on the Applicable Closing Date
to
the purchase price of the Equipment Notes, shall be re-deposited by the Trustee
with the Depositary on the Applicable Closing Date in accordance with the
terms
of the Deposit Agreement. The provisions of this Section 5.01(b) 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 and Section 2.02 of the Basic Agreement shall not apply to
the
Applicable Trust.
12
(c)
The
Trustee acknowledges its acceptance of all right, title and interest in and
to
the Trust Property to be acquired pursuant to Section 5.01(b) of this Trust
Supplement, the NPA and each Applicable Participation Agreement, and declares
that it holds and will hold such right, title and interest for the benefit
of
all present and future Applicable Certificateholders, upon the trusts set
forth
in the Agreement. By its acceptance of an Applicable Certificate, each initial
Applicable Certificateholder, as a grantor of the Applicable Trust, joins
with
the Trustee in the creation of the Applicable Trust. The provisions of this
Section 5.01(c) supersede and replace the provisions of Section 2.03 of the
Basic Agreement, with respect to the Applicable Trust.
Section
5.02. Withdrawal
of Deposits.
If any
Deposits remain outstanding on the Business Day next succeeding the Cut-off
Date, the Trustee shall give the Escrow Agent notice that the Trustee’s
obligation to purchase Equipment Notes under the NPA has terminated and instruct
the Escrow Agent to provide a notice of Final Withdrawal to the Depositary
substantially in the form of Exhibit B to the Deposit Agreement (the
“Final
Withdrawal Notice”).
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 that:
(a) the
Trustee has full power, authority and legal right to execute, deliver and
perform this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement, the NPA and the Note Documents to which it is or is to become
a party
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Supplement, the Intercreditor Agreement,
the
Escrow Agreement, the NPA and the Note Documents to which it is or is to
become
a party;
(b) the
execution, delivery and performance by the Trustee of this Trust Supplement,
the
Intercreditor Agreement, the Escrow Agreement, the NPA and the Note
13
Documents
to which it is or is to become 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
execution, delivery and performance by the Trustee of this Trust Supplement,
the
Intercreditor Agreement, the Escrow Agreement, the NPA and the Note Documents
to
which it is or is to become 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) this
Trust Supplement, the Intercreditor Agreement, the Escrow Agreement, the
NPA and
the Note Documents to which it is or is to become 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.
14
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, enter into one or more agreements supplemental
to
the Escrow Agreement, the NPA or the Deposit 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) 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, and
(b) 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 Liquidity Facility, the Escrow Agreement,
the NPA or the Deposit 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 or the NPA
or
modifying in any manner the rights and obligations of the Applicable
Certificateholders under the Escrow Agreement, the Deposit Agreement or the
NPA;
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.
ARTICLE
VII
MISCELLANEOUS
PROVISIONS
Section 7.01.
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.
15
Section
7.02. GOVERNING
LAW.
THE AGREEMENT AND THE APPLICABLE CERTIFICATES HAVE BEEN DELIVERED IN THE
STATE
OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS
OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. THIS SECTION
7.02
SUPERSEDES AND REPLACES SECTION 12.05 OF THE BASIC AGREEMENT, WITH RESPECT
TO
THE APPLICABLE TRUST.
Section
7.03. 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
7.04. 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.
16
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:_________________________
Name:
Title:
WILMINGTON
TRUST COMPANY,
as
Trustee
By:_________________________
Name:
Title:
17
EXHIBIT
A
FORM
OF
CERTIFICATE
Certificate
No.
[Unless
this certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation (“DTC”),
to
Issuer or its agent for registration of transfer, exchange or payment, and
any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment
is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch the registered owner hereof,
Cede & Co., has an interest herein.]*
CONTINENTAL
AIRLINES PASS THROUGH TRUST 2005-ERJ1
9.798%
Continental Airlines Pass Through Certificate, Series ▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇
Date: September 22, 2005
Final
Maturity Date: October 1, 2022
Evidencing
A Fractional Undivided Interest In The Continental Airlines Pass Through
Trust
2005-ERJ1, The Property Of Which Shall Include Certain Equipment Notes Each
Secured By An Aircraft Leased To Continental Airlines, Inc.
$[_____________]
Fractional Undivided Interest
representing
0.0003215330697% of the Trust per $1,000 face amount
THIS
CERTIFIES THAT __________, for value received, is the registered owner of
a
$___________ (_________________________________________________ DOLLARS)
Fractional Undivided Interest in the Continental Airlines Pass Through Trust
2005-ERJ1 (the “Trust”)
created by Wilmington Trust Company, as trustee (the “Trustee”),
pursuant to a Pass Through Trust Agreement, dated as of September 25, 1997
(the
“Basic
Agreement”),
between the Trustee and Continental Airlines, Inc., a Delaware corporation
(the
“Company”),
as
__________________
* This
legend to appear on Book-Entry Certificates to be deposited with the Depository
Trust Company.
A-1
supplemented
by Trust Supplement No. 2005-ERJ1 thereto, dated as of September 22, 2005
(the
“Trust
Supplement”
and,
together with the Basic Agreement, the “Agreement”),
between the Trustee and the Company, a summary of certain of the pertinent
provisions of which is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them
in
the Agreement. This Certificate is one of the duly authorized Certificates
designated as “9.798% Continental Airlines Pass Through Certificates, Series
2005-ERJ1”(herein called the “Certificates”).
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement. By virtue of its acceptance hereof, the holder
of
this Certificate (the “Certificateholder”
and,
together with all other holders of Certificates issued by the Trust, the
“Certificateholders”)
assents to and agrees to be bound by the provisions of the Agreement and
the
Intercreditor Agreement. The property of the Trust includes certain Equipment
Notes and all rights of the Trust to receive payments under the Intercreditor
Agreement and the Liquidity Facility (the “Trust
Property”).
Each
issue of the Equipment Notes is secured by, among other things, a security
interest in an Aircraft leased to the Company.
The
Certificates represent Fractional Undivided Interests in the Trust and the
Trust
Property and have no rights, benefits or interest in respect of any other
separate trust established pursuant to the terms of the Basic Agreement for
any
other series of certificates issued pursuant thereto.
Subject
to and in accordance with the terms of the Agreement and the Intercreditor
Agreement, from funds then available to the Trustee, there will be distributed
on the 1st
day of
each month (a “Regular
Distribution Date”)
commencing on October 1, 2005 to the Person in whose name this Certificate
is
registered at the close of business on the 15th day preceding the Regular
Distribution Date, an amount in respect of the Scheduled Payments on the
Equipment Notes due on such Regular Distribution Date, the receipt of which
has
been confirmed by the Trustee, equal to the product of the percentage interest
in the Trust evidenced by this Certificate and an amount equal to the sum
of
such Scheduled Payments. Subject to and in accordance with the terms of the
Agreement and the Intercreditor Agreement, in the event that Special Payments
on
the Equipment Notes are received by the Trustee, from funds then available
to
the Trustee, there shall be distributed on the applicable Special Distribution
Date, to the Person in whose name this Certificate is registered at the close
of
business on the 15th day preceding the Special Distribution Date, an amount
in respect of such Special Payments on the Equipment Notes, the receipt of
which
has been confirmed by the Trustee, equal to the product of the percentage
interest in the Trust evidenced by this Certificate and an amount equal to
the
sum of such Special Payments so received. If a Regular Distribution Date
or
Special Distribution Date is not a Business Day, distribution shall be made
on
the immediately following Business Day with the same force and effect as
if made
on such Regular Distribution Date or Special Distribution Date and no interest
shall accrue during the intervening period. The Trustee shall mail notice
of
each Special Payment and the Special Distribution Date therefor to the
Certificateholder of this Certificate.
Distributions
on this Certificate will be made by the Trustee by check mailed to the Person
entitled thereto, without presentation or surrender of this Certificate or
the
making of any notation hereon, except that with respect to Certificates
registered on the Record Date in the name of a Clearing Agency (or its nominee),
such distribution shall be made by wire transfer.
A-2
Except
as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after notice mailed by the
Trustee
of the pendency of such distribution and only upon presentation and surrender
of
this Certificate at the office or agency of the Trustee specified in such
notice.
The
Certificates do not represent a direct obligation of, or an obligation
guaranteed by, or an interest in, the Company or the Trustee or any affiliate
thereof. The Certificates are limited in right of payment, all as more
specifically set forth on the face hereof and in the Agreement. All payments
or
distributions made to Certificateholders under the Agreement shall be made
only
from the Trust Property and only to the extent that the Trustee shall have
sufficient income or proceeds from the Trust Property to make such payments
in
accordance with the terms of the Agreement. Each Certificateholder of this
Certificate, by its acceptance hereof, agrees that it will look solely to
the
income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, privileges, and duties evidenced hereby. A copy of the Agreement
may be examined during normal business hours at the principal office of the
Trustee, and at such other places, if any, designated by the Trustee, by
any
Certificateholder upon request.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Company
and
the rights of the Certificateholders under the Agreement at any time by the
Company and the Trustee with the consent of the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less
than
a majority in interest in the Trust. Any such consent by the Certificateholder
of this Certificate shall be conclusive and binding on such Certificateholder
and upon all future Certificateholders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Certificateholders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations set forth therein,
the transfer of this Certificate is registrable in the Register upon surrender
of this Certificate for registration of transfer at the offices or agencies
maintained by the Trustee in its capacity as Registrar, or by any successor
Registrar, duly endorsed or accompanied by a written instrument of transfer
in
form satisfactory to the Trustee and the Registrar, duly executed by the
Certificateholder hereof or such Certificateholder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate Fractional Undivided Interest in the Trust
will be
issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
minimum denominations of $1,000 Fractional Undivided Interest and integral
multiples thereof except that one Certificate may be issued in a different
denomination. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable
A-3
for
new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust, as requested by the
Certificateholder surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee shall require payment of a sum sufficient to cover any tax
or
governmental charge payable in connection therewith.
Each
Certificateholder and Investor, by its acceptance of this Certificate or
a
beneficial interest herein, agrees to treat the Trust as a grantor trust
for all
U.S. federal, state and local income tax purposes.
The
Trustee, the Registrar, and any agent of the Trustee or the Registrar may
treat
the person in whose name this Certificate is registered as the owner hereof
for
all purposes, and neither the Trustee, the Registrar, nor any such agent
shall
be affected by any notice to the contrary.
The
obligations and responsibilities created by the Agreement and the Trust created
thereby shall terminate upon the distribution to Certificateholders 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.
Any
Person acquiring or accepting this Certificate or an interest herein will,
by
such acquisition or acceptance, be deemed to have represented and warranted
to
and for the benefit of each Owner Participant and 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 this Certificate or an interest herein or
(ii) the purchase and holding of this Certificate or an interest herein are
exempt from the prohibited transaction restrictions of ERISA and the Code
pursuant to one or more prohibited transaction statutory or administrative
exemptions.
THE
AGREEMENT AND THIS CERTIFICATE HAVE BEEN DELIVERED IN THE STATE OF NEW YORK
AND
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF
NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
A-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
CONTINENTAL
AIRLINES PASS
THROUGH
TRUST
2005-ERJ1
By: WILMINGTON
TRUST COMPANY,
as
Trustee
By:_________________________
Name:
Title:
A-5
FORM
OF
THE TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
WILMINGTON
TRUST COMPANY,
as
Trustee
By:_________________________
Name:
Title:
EXHIBIT
B
[DTC
Letter of Representations]