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EXHIBIT 4.6
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PASS THROUGH TRUST AGREEMENT
Dated as of March 21, 1997
between
CONTINENTAL AIRLINES, INC.
and
WILMINGTON TRUST COMPANY,
as Trustee
Continental Airlines Pass Through Trust, Series 1997-1B-O
7.461% Initial Pass Through Certificates, Series 1997-1B-O
7.461% Exchange Pass Through Certificates, Series 1997-1B-O
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Reconciliation and tie between Continental Airlines Pass Through Trust
Agreement, Series 1997-1B-O dated as of March 21, 1997, and the Trust Indenture
Act of 1939. This reconciliation does not constitute part of the Pass Through
Trust Agreement.
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
------------------- ------------------
310(a)(1) 7.08
(a)(2) 7.08
312(a) 3.05; 8.01; 8.02
313(a) 7.06; 8.03
314(a) 8.04(a),
(c) & (d)
(a)(4) 8.04(e)
(c)(1) 1.02
(c)(2) 1.02
(d)(1) 7.13; 11.01
(d)(2) 7.13; 11.01
(d)(3) 2.01
(e) 1.02
315(b) 7.02
316(a)(last sentence) 1.04(c)
(a)(1)(A) 6.04
(a)(1)(B) 6.05
(b) 6.06
(c) 1.04(e)
317(a)(1) 6.03
(b) 7.13
318(a) 12.06
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TABLE OF CONTENTS
SECTION PAGE
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.02. Compliance Certificates and Opinions . . . . . . . . . . . 18
Section 1.03. Form of Documents Delivered to Trustee . . . . . . . . . . 19
Section 1.04. Directions of Certificateholders . . . . . . . . . . . . . 19
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES; ACQUISITION OF EQUIPMENT NOTES
Section 2.01. Issuance of Certificates; Acquisition of Equipment Notes . 21
Section 2.02. Withdrawal of Deposits . . . . . . . . . . . . . . . . . . 23
Section 2.03. Acceptance by Trustee . . . . . . . . . . . . . . . . . . 23
Section 2.04. Limitation of Powers . . . . . . . . . . . . . . . . . . . 23
ARTICLE III
THE CERTIFICATES
Section 3.01. Title, Form, Denomination and Execution of Certificates . 24
Section 3.02. Restrictive Legends . . . . . . . . . . . . . . . . . . . 27
Section 3.03. Authentication of Certificates . . . . . . . . . . . . . . 29
Section 3.04. Transfer and Exchange . . . . . . . . . . . . . . . . . . 29
Section 3.05. Book-Entry Provisions for Restricted Global Certificates
and Regulation S Global Certificates . . . . . . . . . . . 31
Section 3.06. Special Transfer Provisions . . . . . . . . . . . . . . . 33
Section 3.07. Mutilated, Destroyed, Lost or Stolen Certificates . . . . 37
Section 3.08. Persons Deemed Owners . . . . . . . . . . . . . . . . . . 38
Section 3.09. Cancellation . . . . . . . . . . . . . . . . . . . . . . . 38
Section 3.10. Temporary Certificates . . . . . . . . . . . . . . . . . . 38
Section 3.11. Limitation of Liability for Payments . . . . . . . . . . . 39
(i)
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TABLE OF CONTENTS
(CONTINUED)
SECTION PAGE
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ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments Account . . . . . 39
Section 4.02. Distributions from Certificate Account and Special
Payments Account . . . . . . . . . . . . . . . . . . . . . 40
Section 4.03. Statements to Certificateholders . . . . . . . . . . . . . 42
Section 4.04. Investment of Special Payment Moneys . . . . . . . . . . . 44
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence . . . . . . . . . . . . 44
Section 5.02. Consolidation, Merger, etc. . . . . . . . . . . . . . . . 45
ARTICLE VI
DEFAULT
Section 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . 46
Section 6.02. Incidents of Sale of Equipment Notes . . . . . . . . . . . 49
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee May
Bring Suit . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.04. Control by Certificateholders . . . . . . . . . . . . . . 50
Section 6.05. Waiver of Past Defaults . . . . . . . . . . . . . . . . . 51
(ii)
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TABLE OF CONTENTS
(CONTINUED)
SECTION PAGE
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Section 6.06. Right of Certificateholders to Receive Payments
Not to Be Impaired . . . . . . . . . . . . . . . . . . . . 52
Section 6.07. Certificateholders May Not Bring Suit Except
Under Certain Conditions . . . . . . . . . . . . . . . . . 52
Section 6.08. Remedies Cumulative . . . . . . . . . . . . . . . . . . . 53
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities . . . . . . . . . . . 53
Section 7.02. Notice of Defaults . . . . . . . . . . . . . . . . . . . . 54
Section 7.03. Certain Rights of Trustee . . . . . . . . . . . . . . . . 54
Section 7.04. Not Responsible for Recitals or Issuance of Certificates . 56
Section 7.05. May Hold Certificates . . . . . . . . . . . . . . . . . . 56
Section 7.06. Money Held in Trust . . . . . . . . . . . . . . . . . . . 56
Section 7.07. Compensation and Reimbursement . . . . . . . . . . . . . . 57
Section 7.08. Corporate Trustee Required; Eligibility . . . . . . . . . 58
Section 7.09. Resignation and Removal; Appointment of Successor . . . . 59
Section 7.10. Acceptance of Appointment by Successor . . . . . . . . . . 61
Section 7.11. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . . 61
Section 7.12. Maintenance of Agencies . . . . . . . . . . . . . . . . . 62
Section 7.13. Money for Certificate Payments to Be Held in Trust . . . . 63
Section 7.14. Registration of Equipment Notes in Name of
Subordination Agent . . . . . . . . . . . . . . . . . . . 64
Section 7.15. Representations and Warranties of Trustee . . . . . . . . 64
(iii)
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TABLE OF CONTENTS
(CONTINUED)
SECTION PAGE
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Section 7.16. Withholding Taxes, Information Reporting . . . . . . . . . 65
Section 7.17. Trustee's Liens . . . . . . . . . . . . . . . . . . . . . 67
Section 7.18. Preferential Collection of Claims . . . . . . . . . . . . 67
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and
Addresses of Certificateholders . . . . . . . . . . . . . 67
Section 8.02. Preservation of Information; Communications
to Certificateholders . . . . . . . . . . . . . . . . . . 68
Section 8.03. Reports by Trustee . . . . . . . . . . . . . . . . . . . . 68
Section 8.04. Reports by the Company . . . . . . . . . . . . . . . . . . 68
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent
of Certificateholders . . . . . . . . . . . . . . . . . . 70
Section 9.02. Supplemental Agreements with
Consent of Certificateholders . . . . . . . . . . . . . . 71
Section 9.03. Documents Affecting Immunity or Indemnity . . . . . . . . 73
Section 9.04. Execution of Supplemental Agreements . . . . . . . . . . . 73
Section 9.05. Effect of Supplemental Agreements . . . . . . . . . . . . 73
Section 9.06. Conformity with Trust Indenture Act . . . . . . . . . . . 74
Section 9.07. Reference in Certificates to Supplemental Agreements . . . 74
(iv)
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TABLE OF CONTENTS
(CONTINUED)
SECTION PAGE
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ARTICLE X
AMENDMENTS TO INDENTURES AND FINANCING DOCUMENTS
Section 10.01. Amendments and Supplements to Indentures and
Financing Documents . . . . . . . . . . . . . . . . . . . 74
ARTICLE XI
TERMINATION OF TRUST
Section 11.01. Termination of the Trust . . . . . . . . . . . . . . . . . 75
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders . . . . . . . . 79
Section 12.02. Certificates Nonassessable and Fully Paid . . . . . . . . 79
Section 12.03. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 12.04. Governing Law . . . . . . . . . . . . . . . . . . . . . . 81
Section 12.05. Severability of Provisions . . . . . . . . . . . . . . . . 81
Section 12.06. Trust Indenture Act Controls . . . . . . . . . . . . . . . 81
Section 12.07. Effect of Headings and Table of Contents . . . . . . . . . 81
Section 12.08. Successors and Assigns . . . . . . . . . . . . . . . . . . 82
Section 12.09. Benefits of Agreement . . . . . . . . . . . . . . . . . . 82
Section 12.10. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . 82
Section 12.11. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 82
Section 12.12. Intention of Parties . . . . . . . . . . . . . . . . . . . 82
(v)
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Exhibit A- Form of Certificate
Exhibit B- Form of Certificate to Request Removal of Restricted Legend
Exhibit C- Form of Certificate to be Delivered by an Institutional
Accredited Investor
Exhibit D- Form of Assignment and Assumption Agreement
Exhibit E- Form of Notice to Withholding Agent
(vi)
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PASS THROUGH TRUST AGREEMENT
This PASS THROUGH TRUST AGREEMENT, dated as of March 21, 1997
(the "Agreement"), between CONTINENTAL AIRLINES, INC., a Delaware corporation,
and WILMINGTON TRUST COMPANY, as Trustee, is made with respect to the formation
of Continental Airlines Pass Through Trust, Series 1997-1B-O and the issuance
of 7.461% Continental Airlines Pass Through Trust, Series 1997-1B-O Pass
Through Certificates representing fractional undivided interests in the Trust.
WITNESSETH:
WHEREAS, the Company has obtained commitments from Boeing for
the delivery of certain Aircraft;
WHEREAS, the Company intends to finance the acquisition of
each such Aircraft either (i) through separate leveraged lease transactions in
which the Company will lease such aircraft (collectively, the "Leased
Aircraft") or (ii) through separate secured loan transactions in which the
Company will own such Aircraft (collectively, the "Owned Aircraft");
WHEREAS, in the case of each Leased Aircraft, each Owner
Trustee, acting on behalf of the corresponding Owner Participant, will issue
pursuant to an Indenture, on a non-recourse basis, three series of Equipment
Notes in order to finance a portion of its purchase price of such Leased
Aircraft;
WHEREAS, in the case of each Owned Aircraft, the Company, will
issue pursuant to an Indenture, on a recourse basis, three series of Equipment
Notes to finance a portion of the purchase price of such Owned Aircraft;
WHEREAS, the Trustee, upon execution and delivery of this
Agreement, hereby declares the creation of the Trust for the benefit of the
Certificateholders, and the initial Certificateholders, as the grantors of the
Trust, by their respective acceptances of the Certificates, join in the
creation of this Trust with the Trustee;
WHEREAS, all Certificates to be issued by the Trust will
evidence fractional undivided interests in the Trust and will convey no rights,
benefits or interests in respect of any
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property other than the Trust Property except for those Certificates to which
an Escrow Receipt has been affixed;
WHEREAS, the Escrow Agent and the Initial Purchasers have
contemporaneously herewith entered into an Escrow Agreement with the Escrow
Paying Agent pursuant to which the Initial Purchasers have delivered to the
Escrow Agent the proceeds from the sale of the Certificates 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 delivered by Boeing under the Aircraft
Purchase Agreement from time to time prior to the Delivery Period Termination
Date;
WHEREAS, the Escrow Agent on behalf of the 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;
WHEREAS, pursuant to the terms and conditions of this
Agreement and the Note Purchase Agreement, upon or shortly following delivery
of an Aircraft, the Trustee on behalf of the Trust, using funds withdrawn under
the Escrow Agreement, may purchase an Equipment Note having the same interest
rate as, and final maturity date not later than the final Regular Distribution
Date of, the Certificates issued hereunder and shall hold such Equipment Note
in trust for the benefit of the Certificateholders;
WHEREAS, to facilitate the sale of Equipment Notes to, and the
purchase of Equipment Notes by, the Trustee on behalf of the Trust, the Company
has duly authorized the execution and delivery of this Agreement as the
"issuer", as such term is defined in and solely for purposes of the Securities
Act, of the Certificates to be issued pursuant hereto and as the "obligor", as
such term is defined in and solely for purposes of the Trust Indenture Act of
1939, as amended, with respect to all such Certificates and is undertaking to
perform certain administrative and ministerial duties hereunder and is also
undertaking to pay the ongoing fees and expenses of the Trustee;
WHEREAS, all of the conditions and requirements necessary to
make this Agreement, when duly executed and
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delivered, a valid, binding and legal instrument, enforceable in accordance
with its terms and for the purposes herein expressed, have been done, performed
and fulfilled, and the execution and delivery of this Agreement in the form and
with the terms hereof have been in all respects duly authorized; and
WHEREAS, upon issuance of the Exchange Certificates, if any,
or the effectiveness of the Shelf Registration Statement, this Agreement, as
amended or supplemented from time to time, will be subject to the provisions of
the Trust Indenture Act of 1939, and shall, to the extent applicable, be
governed by such provisions;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, and of other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For all purposes of this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms used in this Agreement, including in the
recitals to this Agreement, that are defined in this Article have the
meanings assigned to them in this Article, and include the plural as
well as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, or by
the rules promulgated under the Trust Indenture Act, have the meanings
assigned to them therein;
(3) all references in this Agreement to designated
"Articles", "Sections", "Subsections" and other subdivisions are to
the designated Articles, Sections, Subsections and other subdivisions
of this Agreement;
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Agreement as a whole and
not to any particular Article, Section, Subsection or other
subdivision; and
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(5) unless the context otherwise requires, whenever the
words "including", "include" or "includes" are used herein, it shall
be deemed to be followed by the phrase "without limitation".
Affiliate: Means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such Person, provided, however, that neither
America West Airlines, Inc. nor any of its subsidiaries shall be deemed to be an
"Affiliate" of the Company for purposes of this Agreement. For the purposes of
this definition, "control" means the power, directly or indirectly, to direct
the management and policies of such Person, whether through the ownership of
voting securities or by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agent Members: Has the meaning specified in Section 3.05.
Agreement: Has the meaning specified in the initial paragraph
hereto.
Aircraft: Means each of the New Aircraft or Substitute
Aircraft in respect of which a Participation Agreement is entered into
in accordance with the Note Purchase Agreement.
Aircraft Purchase Agreement: Has the meaning specified in the
Note Purchase Agreement.
Applicable Delivery Date: Has the meaning specified in
Section 2.01(b).
Applicable Participation Agreement: Has the meaning specified
in Section 2.01(b).
Assignment and Assumption Agreement: Means the assignment and
assumption agreement substantially in the form of Exhibit D hereto executed
and delivered in accordance with Section 11.01.
Authorized Agent: Means any Paying Agent or Registrar for the
Certificates.
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Avoidable Tax: Means a state or local tax (i) upon (w) the
Trust, (x) the Trust Property, (y) Certificateholders or (z) the
Trustee for which the Trustee is entitled to seek reimbursement from
the Trust Property, and (ii) which would be avoided if the Trustee
were located in another state, or jurisdiction within a state, within
the United States. A tax shall not be an Avoidable Tax if the Company
or any Owner Trustee shall agree to pay, and shall pay, such tax.
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, Salt Lake City, Utah or, so
long as any 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.
Cedel: Means Cedel Bank societe anonyme.
Certificate: Means any one of the Initial Certificates or
Exchange Certificates and any such Certificates issued in exchange
therefor or replacement thereof pursuant to this Agreement.
Certificate Account: Means the account or accounts created
and maintained pursuant to Section 4.01(a).
Certificate Purchase Agreement: Means the Purchase Agreement
dated March 12, 1997 among the Initial Purchasers, the Company and the
Depositary, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
Certificateholder or Holder: Means the Person in whose name a
Certificate is registered in the Register.
Class C Certificateholder: Has the meaning specified in
Section 6.01.
Company: Means Continental Airlines, Inc., a Delaware
corporation, or its successor in interest pursuant to Section 5.02, or
(only in the context of provisions hereof, if any, where such
reference is required for purposes of
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compliance with the Trust Indenture Act) any other "obligor" (within
the meaning of the Trust Indenture Act) with respect to the
Certificates.
Controlling Party: Has the meaning specified in the
Intercreditor Agreement.
Corporate Trust Office: With respect to the Trustee or any
Loan Trustee, means the office of such trustee in the city at which at
any particular time its corporate trust business shall be principally
administered.
Cut-off Date: Means the earlier of (a) the Delivery Period
Termination Date and (b) the date on which a Triggering Event occurs.
Definitive Certificates: Has the meaning specified in Section
3.01(e).
Delivery Date: Has the meaning specified in the Note Purchase
Agreement.
Delivery Notice: Has the meaning specified in the Note
Purchase Agreement.
Delivery Period Termination Date: Means the earlier of (a)
March 31, 1998, or, if the Equipment Notes relating to all of the New
Aircraft (or Substitute Aircraft in lieu thereof) have not been
purchased by the Trust and the Other Trusts 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, June 30, 1998 and (b) the date
on which Equipment Notes issued with respect to all of the New
Aircraft (or Substitute Aircraft in lieu thereof) have been purchased
by the Trust and the Other Trusts in accordance with the Note Purchase
Agreement.
Deposits: Has the meaning specified in the Deposit Agreement.
Deposit Agreement: Means the Deposit Agreement dated as of
March 21, 1997 relating to the 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.
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Depositary: Means Credit Suisse First Boston, a Swiss bank,
acting through its New York branch.
Direction: Has the meaning specified in Section 1.04(a).
Distribution Date: Means any Regular Distribution Date or
Special Distribution Date as the context requires.
DTC: Means The Depository Trust Company, its nominees and
their respective successors.
Equipment Notes: Means the equipment notes issued under the
Indentures.
ERISA: Means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor federal statute.
ERISA Legend: Has the meaning specified in Section 3.12.
Escrow Agent: Means, initially, First Security Bank, 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 21, 1997 relating to the Certificates, among the
Escrow Agent, the Escrow Paying Agent, the Trustee and the Initial
Purchasers, 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.
Euroclear: Means the Euroclear System.
Event of Default: Means an Indenture Default under any
Indenture pursuant to which Equipment Notes held by the Trust were
issued.
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Exchange Certificates: Means the pass through certificates
substantially in the form of Exhibit A hereto issued in exchange for
the Initial Certificates pursuant to the Registration Rights Agreement
and authenticated hereunder.
Exchange Offer: Means the exchange offer which may be made
pursuant to the Registration Rights Agreement to exchange Initial
Certificates for Exchange Certificates.
Exchange Offer Registration Statement: Means the registration
statement that, pursuant to the Registration Rights Agreement, is
filed by the Company with the SEC with respect to the exchange of
Initial Certificates for Exchange Certificates.
Final Maturity Date: Means October 1, 2014.
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
2.02.
Financing Documents: With respect to any Equipment Note,
means (i) the Indenture and the Participation Agreement relating to
such Equipment Note, and (ii) in the case of any Equipment Note
related to a Leased Aircraft, the Lease relating to such Leased
Aircraft.
Fractional Undivided Interest: Means the fractional undivided
interest in the Trust that is evidenced by a Certificate.
Global Certificates: Has the meaning specified in Section
3.01(d).
Global Exchange Certificate: Has the meaning specified in
Section 3.01(f).
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
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Note Purchase Agreement 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.
Indenture Default: With respect to any Indenture, means any
Event of Default (as such term is defined in such Indenture).
Initial Certificates: Means the certificates issued and
authenticated hereunder substantially in the form of Exhibit A hereto
other than the Exchange Certificates.
Initial Purchasers: Means, collectively, Credit Suisse First
Boston Corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Chase
Securities Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
Institutional Accredited Investor: Means an institutional
investor that is an "accredited investor" within the meaning set forth
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act.
Intercreditor Agreement: Means the Intercreditor Agreement
dated as of March 21, 1997 among the Trustee, the Other Trustees, the
Liquidity Providers, the liquidity providers relating to the
Certificates issued under (and as defined in) each of the Other Pass
Through Trust Agreements, 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 Initial Purchasers together with all
subsequent beneficial owners of the Certificates.
Issuance Date: Means the date of the issuance of the Initial
Certificates.
Lease: Means, with respect to each Leased Aircraft, the lease
between an Owner Trustee, as the lessor, and the Company, as the
lessee, referred to in the related Indenture, as such lease may be
amended, supplemented or otherwise modified in accordance with its
terms.
Leased Aircraft: Has the meaning specified in the second
recital to this Agreement.
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Liquidity Facility: Means, initially, (i) the Revolving
Credit Agreement dated as of March 21, 1997 relating to the
Certificates, between ABN Amro Bank N.V. and the Subordination Agent,
as agent and trustee for the Trustee, and (ii) the Revolving Credit
Agreement dated as of March 21, 1997 relating to the Certificates,
between ING Bank N.V. and the Subordination Agent, as agent and
trustee for the Trustee, and, from and after the replacement of either
such Agreement pursuant to the Intercreditor Agreement, the
replacement liquidity facility therefor, in each case as amended,
supplemented or otherwise modified from time to time in accordance
with their respective terms.
Liquidity Provider: Means, initially, each of ABN Amro Bank
N.V. and ING Bank N.V., and any replacement or successor therefor
appointed in accordance with the Intercreditor Agreement.
Loan Trustee: With respect to any Equipment Note or the
Indenture applicable thereto, means the bank or trust company
designated as trustee under such Indenture, together with any
successor to such trustee appointed pursuant thereto.
New Aircraft: Has the meaning specified in the Note Purchase
Agreement.
Non-U.S. Person: Means a Person that is not a "U.S. person",
as defined in Regulation S.
Note Purchase Agreement: Means the Note Purchase Agreement
dated as of March 21, 1997 among the Trustee, the Other Trustees, 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 Trust, as the same
may be amended, supplemented or otherwise modified from time to time,
in accordance with its terms.
Notice of Purchase Withdrawal: Has the meaning specified in
the Deposit Agreement.
Offering Circular: Means the Offering Circular dated March
12, 1997 relating to the offering of the Certificates and the
certificates issued under the Other Pass Through Trust Agreements.
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Officer's Certificate: Means a certificate signed, (a) in the
case of the Company, by (i) the Chairman or Vice Chairman of the Board
of Directors, the President, any Executive Vice President, any Senior
Vice President or the Treasurer of the Company, signing alone, or (ii)
any Vice President of the Company signing together with the Secretary,
the Assistant Secretary, the Treasurer or any Assistant Treasurer of
the Company or, (b) in the case of an Owner Trustee or a Loan Trustee,
a Responsible Officer of such Owner Trustee or such Loan Trustee, as
the case may be.
Opinion of Counsel: Means a written opinion of legal counsel
who (a) in the case of counsel for the Company may be (i) a senior
attorney of the Company one of whose principal duties is furnishing
advice as to legal matters, (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, or (iii)
such other counsel designated by the Company and reasonably acceptable
to the Trustee and (b) in the case of counsel for any Owner Trustee or
any Loan Trustee may be such counsel as may be designated by any of
them whether or not such counsel is an employee of any of them, and
who shall be reasonably acceptable to the Trustee.
Other Pass Through Trust Agreements: Means each of the three
other Continental Airlines 1997-1 Pass Through Trust Agreements
relating to Continental Airlines Pass Through Trust, Series 1997-1A-O,
Continental Airlines Pass Through Trust, Series 1997-1C-I-O, and
Continental Airlines Pass Through Trust, Series 1997-1C- II-O, dated
the date hereof.
Other Trustees: Means the trustees under the Other Pass
Through Trust Agreements, and any successor or other trustee appointed
as provided therein.
Other Trusts: Means the Continental Airlines Pass Through
Trust, Series 1997-1A-O, Continental Airlines Pass Through Trust,
Series 1997-1C-I-O, and Continental Airlines Pass Through Trust,
Series 1997-1C- II-O, created on the date hereof.
Outstanding: When used with respect to Certificates, means,
as of the date of determination, all Certificates theretofore
authenticated and delivered under this Agreement, except:
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(i) Certificates theretofore canceled by the
Registrar or delivered to the Trustee or the Registrar for
cancellation;
(ii) Certificates for which money in the full
amount required to make the final distribution with respect to
such Certificates pursuant to Section 11.01 hereof has been
theretofore deposited with the Trustee in trust for the
Holders of such Certificates as provided in Section 4.01
pending distribution of such money to such Certificateholders
pursuant to payment of such final distribution; and
(iii) Certificates in exchange for or in lieu of
which other Certificates have been authenticated and delivered
pursuant to this Agreement.
Owned Aircraft: Has the meaning specified in the second
recital to this Agreement.
Owner Participant: With respect to any Equipment Note
relating to a Leased Aircraft, means the "Owner Participant" as
referred to in the Indenture pursuant to which such Equipment Note is
issued and any permitted successor or assign of such Owner
Participant; and Owner Participants at any time of determination means
all of the Owner Participants thus referred to in the Indentures.
Owner Trustee: With respect to any Equipment Note relating to
a Leased Aircraft, means the "Owner Trustee", as referred to in the
Indenture pursuant to which such Equipment Note is issued, not in its
individual capacity but solely as trustee; and Owner Trustees means
all of the Owner Trustees party to any of the Indentures.
Participation Agreement: Means each Participation Agreement
to be entered into by the Trustee pursuant to the Note Purchase
Agreement, as the same may be amended, supplemented or otherwise
modified in accordance with its terms.
Paying Agent: Means the paying agent maintained and appointed
for the Certificates pursuant to Section 7.12.
Permitted Investments: Means obligations of the United States
of America or agencies or instrumentalities thereof
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for the payment of which the full faith and credit of the United
States of America is pledged, maturing in not more than 60 days after
the date of acquisition thereof or such lesser time as is required for
the distribution of any Special Payments on a Special Distribution
Date.
Person: Means any person, including any individual,
corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, trustee, unincorporated
organization, or government or any agency or political subdivision
thereof.
Plan Transferee: Means any Plan or any entity that is using
the assets of any Plan to purchase or hold its interest in a
Certificate. For purposes of this definition, a "Plan" means any
employee benefit plan subject to ERISA as well as any plan that is not
subject to ERISA but which is subject to Section 4975 of the Internal
Revenue Code of 1986, as amended.
Pool Balance: Means, as of any date, (i) the original
aggregate face amount of the Certificates less (ii) the aggregate
amount of all payments made in respect of such Certificates other than
payments made in respect of interest or premium thereon or
reimbursement of any costs or expenses incurred in connection
therewith less (iii) the aggregate amount of unused Deposits
distributed as a Final Withdrawal other than payments in respect of
interest or premium thereon. The Pool Balance as of any Distribution
Date shall be computed after giving effect to the payment of
principal, if any, on the Equipment Notes or other Trust Property held
in such Trust and the distribution thereof to be made on such
Distribution Date and the distribution of the Final Withdrawal to be
made on such Distribution Date.
Pool Factor: Means, as of any date, the quotient (rounded to
the seventh decimal place) computed by dividing (i) the Pool Balance
as at such date by (ii) the original aggregate face amount of the
Certificates. The Pool Factor as of any Distribution Date shall be
computed after giving effect to the payment of principal, if any, on
the Equipment Notes or other Trust Property and the distribution
thereof to be made on such Distribution Date and the distribution of
the Final Withdrawal to be made on such Distribution Date.
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PTC Event of Default: Means any failure to pay within 10
Business Days of the due date thereof: (i) the outstanding Pool
Balance on the Final Maturity Date or (ii) interest due on the
Certificates on any Distribution Date (unless the Subordination Agent
shall have made an Interest Drawing or Drawings (as defined in the
Intercreditor Agreement), or a withdrawal or withdrawals pursuant to
section 3.6(f) of the Intercreditor Agreement, with respect thereto in
an aggregate amount sufficient to pay such interest and shall have
distributed such amount to the Trustee).
QIB: Means a qualified institutional buyer as defined in
Rule 144A.
Record Date: Means (i) for Scheduled Payments to be
distributed on any Regular Distribution Date, other than the final
distribution, the 15th day (whether or not a Business Day) preceding
such Regular Distribution Date, and (ii) for Special Payments to be
distributed on any Special Distribution Date, other than the final
distribution, the 15th day (whether or not a Business Day) preceding
such Special Distribution Date.
Register and Registrar: Mean the register maintained and the
registrar appointed pursuant to Sections 3.04 and 7.12.
Registration Event: Means the declaration of the
effectiveness by the SEC of the Exchange Offer Registration Statement
or the Shelf Registration Statement.
Registration Rights Agreement: Means the Exchange and
Registration Rights Agreement dated as of March 21, 1997, among the
Initial Purchasers, the Trustee, the Other Trustees and the Company,
as amended, supplemented or otherwise modified from time to time in
accordance with its terms.
Regular Distribution Date: With respect to distributions of
Scheduled Payments in respect of the Certificates, means each date
designated as a Regular Distribution Date in the Certificates issued
pursuant to this Agreement, until payment of all the Scheduled
Payments to be made under the Equipment Notes held in the Trust have
been made; provided, however, that, if any such day shall
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not be a Business Day, the related distribution shall be made on the
next succeeding Business Day without additional interest.
Regulation S: Means Regulation S under the Securities Act or
any successor regulation thereto.
Regulation S Definitive Certificates: Has the meaning
specified in Section 3.01(e).
Regulation S Global Certificates: Has the meaning specified
in Section 3.01(d).
Related Pass Through Trust Agreement: Means the Continental
Airlines 1997-1 Pass Through Trust Agreement relating to the
Continental Airlines Pass Through Trust, Series 1997-1B-S, dated the
date hereof, entered into by the Company and the institution acting as
trustee thereunder, which agreement becomes effective upon the
execution and delivery of the Assignment and Assumption Agreement
pursuant to Section 11.01.
Related Trust: Means the Continental Pass Through Trust,
Series 1997-1B-S, formed under the Related Pass Through Trust
Agreement.
Related Trustee: Means the trustee under the Related Pass
Through Trust Agreement.
Responsible Officer: With respect to the Trustee, any Loan
Trustee and any Owner Trustee, means any officer in the Corporate
Trust Office of the Trustee, Loan Trustee or Owner Trustee or any
other officer customarily performing functions similar to those
performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with a particular subject.
Restricted Definitive Certificates: Has the meaning specified
in Section 3.01(e).
Restricted Global Certificate: Has the meaning specified in
Section 3.01(c).
Restricted Legend: Has the meaning specified in Section 3.02.
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Restricted Period: Has the meaning specified in Section
3.01(d).
Rule 144A: Means Rule 144A under the Securities Act and any
successor rule thereto.
Scheduled Payment: With respect to any Equipment Note, means
(i) any payment of principal or interest on such Equipment Note (other
than any such payment which is not in fact received by the
Subordination Agent within five days of the date on which such payment
is scheduled to be made) due from the obligor thereon or (ii) any
payment of interest on the Certificates with funds drawn under any
Liquidity Facility, which payment represents the installment of
principal at the stated maturity of such installment of principal on
such Equipment Note, the payment of regularly scheduled interest
accrued on the unpaid principal amount of such Equipment Note, or
both; provided that any payment of principal, premium, if any, or
interest resulting from the redemption or purchase of any Equipment
Note shall not constitute a Scheduled Payment.
SEC: Means the Securities and Exchange Commission, as
from time to time constituted or created under the United States
Securities Exchange Act of 1934, as amended, or, if at any time after
the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
Securities Act: Means the United States Securities Act of
1933, as amended from time to time, or any successor thereto.
Shelf Registration Statement: Means the shelf registration
statement which may be required to be filed by the Company with the
SEC pursuant to any Registration Rights Agreement, other than an
Exchange Offer Registration Statement.
Special Distribution Date: Means each date on which a Special
Payment is to be distributed as specified in this Agreement; provided,
however, that, if any such day shall not be a Business Day, the
related distribution shall be made on the next succeeding Business Day
without additional interest.
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Special Redemption Premium: Means the premium payable by the
Company in respect of the Final Withdrawal pursuant to the Note
Purchase Agreement.
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) or Special
Redemption Premium.
Special Payments Account: Means the account or accounts
created and maintained pursuant to Section 4.01(b).
Subordination Agent: Has the meaning specified in the
Intercreditor Agreement.
Substitute Aircraft: Has the meaning specified in the Note
Purchase Agreement.
TIN: Has the meaning specified in Section 7.16.
Transfer Date: Has the meaning specified in Section 11.01.
Triggering Event: Has the meaning assigned to such term in
the Intercreditor Agreement.
Trust: Means the trust created by this Agreement, the estate
of which consists of the Trust Property.
Trust Indenture Act: Means the United States Trust Indenture
Act of 1939, as amended from time to time, or any successor thereto.
Trust Property: Means (i) the Equipment Notes held as the
property of the Trust and, subject to the Intercreditor Agreement, 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 hereof of any Equipment Note and (iii) all
rights of the Trust and the Trustee, on behalf of the Trust, under the
Intercreditor Agreement, the Escrow Agreement, the Note Purchase
Agreement and the Liquidity Facilities, including, without limitation,
all rights to receive certain payments thereunder, and all monies paid
to
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the Trustee on behalf of the Trust pursuant to the Intercreditor
Agreement or the Liquidity Facilities, 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.
Trustee: Means Wilmington Trust Company, or its successor in
interest, and any successor or other trustee appointed as provided
herein.
Trustee's Lien: Has the meaning specified in Section 7.17.
Section 1.02. Compliance Certificates and Opinions. Upon any
application or request (except with respect to matters set forth in Article II)
by the Company, any Owner Trustee or any Loan Trustee to the Trustee to take
any action under any provision of this Agreement, the Company, such Owner
Trustee or such Loan Trustee, as the case may be, shall furnish to the Trustee
(i) an Officer's Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and (ii) an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Agreement relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement (other than a certificate
provided pursuant to Section 8.04(e)) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions in this Agreement relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
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(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters and any such Person may certify or give an
opinion as to such matters in one or several documents.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement or, in respect of the Certificates, this
Agreement, they may, but need not, be consolidated and form one instrument.
Section 1.04. Directions of Certificateholders. (a) Any
direction, consent, request, demand, authorization, notice, waiver or other
action provided by this Agreement to be given or taken by Certificateholders (a
"Direction") may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Certificateholders in person or by
an agent or proxy duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required pursuant to this Agreement, to the Company or any Loan Trustee. Proof
of execution of any such instrument or of a writing appointing any such agent
or proxy shall be sufficient for any purpose of this Agreement and conclusive
in favor of the Trustee, the Company and any Loan Trustee, if made in the
manner provided in this Section.
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(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the certificate of any notary
public or other officer of any jurisdiction authorized to take acknowledgments
of deeds or administer oaths that the Person executing such instrument
acknowledged to him the execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or such other officer and where
such execution is by an officer of a corporation or association or a member of
a partnership, on behalf of such corporation, association or partnership, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(c) In determining whether the Certificateholders of the
requisite Fractional Undivided Interests of Certificates Outstanding have given
any Direction under this Agreement, Certificates owned by the Company or any
Affiliate thereof shall be disregarded and deemed not to be Outstanding for
purposes of any such determination. In determining whether the Trustee shall
be protected in relying upon any such Direction, only Certificates which the
Trustee knows to be so owned shall be so disregarded. Notwithstanding the
foregoing, (i) if any such Person owns 100% of the Certificates Outstanding,
such Certificates shall not be so disregarded, and (ii) if any amount of
Certificates so owned by any such Person have been pledged in good faith, such
Certificates shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Certificates and that the pledgee is not the Company or any Affiliate thereof.
(d) For all purposes of this Agreement, all Initial
Certificates and all Exchange Certificates shall vote and take all other
actions of Certificateholders together as one series of Certificates.
(e) The Company may at its option, by delivery of an
Officer's Certificate to the Trustee, set a record date to determine the
Certificateholders entitled to give any Direction. Notwithstanding Section
316(c) of the Trust Indenture Act, such record date shall be the record date
specified in such Officer's Certificate, which shall be a date not more than 30
days prior to the first solicitation of Certificateholders in connection
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therewith. If such a record date is fixed, such Direction may be given before
or after such record date, but only the Certificateholders of record at the
close of business on such record date shall be deemed to be Certificateholders
for the purposes of determining whether Certificateholders of the requisite
proportion of Outstanding Certificates have authorized or agreed or consented
to such Direction, and for that purpose the Outstanding Certificates shall be
computed as of such record date; provided that no such Direction by the
Certificateholders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Agreement not later
than one year after such record date.
(f) Any Direction by the Holder of any Certificate shall
bind the Holder of every Certificate issued upon the transfer thereof or in
exchange therefor or in lieu thereof, whether or not notation of such Direction
is made upon such Certificate.
(g) Except as otherwise provided in Section 1.04(c),
Certificates owned by or pledged to any Person shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority, or distinction as among all of the Certificates.
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF EQUIPMENT NOTES
Section 2.01. Issuance of Certificates; Acquisition of
Equipment Notes. (a) The Trustee is hereby directed (i) to execute and
deliver the Intercreditor Agreement, the Registration Rights Agreement, the
Escrow Agreement and the Note Purchase Agreement 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 Certificate Purchase Agreement, the Trustee shall execute,
deliver, authenticate, issue and sell Certificates in authorized denominations
equalling in the aggregate the amount set forth, with respect to the Trust, in
Schedule II to the Certificate Purchase Agreement evidencing the entire
ownership interest in the Trust, which amount equals the maximum aggregate
principal amount of Equipment Notes which
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may be purchased by the Trustee pursuant to the Note Purchase Agreement.
Except as provided in Sections 3.04, 3.05, 3.06, 3.07 and 3.10 hereof, the
Trustee shall not execute, authenticate or deliver Certificates in excess of
the aggregate amount specified in this paragraph.
(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 Delivery Date as to which such Delivery
Notice relates (the "Applicable Delivery Date") (or, if the Issuance Date is an
Applicable Delivery Date, on the Issuance 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 Delivery 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 or the Company, as the case may be, issuing
such Equipment Notes, all as shall be described in the Delivery Notice;
provided that, if the Issuance Date is an Applicable Delivery Date, such
purchase price shall be paid from a portion of the proceeds of the sale of the
Certificates. The Trustee shall (as and when specified in such Delivery
Notice), subject to the conditions set forth in Section 2 of the Note Purchase
Agreement, 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 Delivery Date, the Trustee
receives a notice of postponement pursuant to Section 2(e) or 2(f) of the Note
Purchase Agreement, 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 Delivery
Date. Upon satisfaction of the conditions specified in the Note Purchase
Agreement 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 Delivery Date in accordance with
the terms of the Deposit Agreement and the Escrow
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Agreement (or, if the Issuance Date is Applicable Delivery Date with respect to
such Applicable Participation Agreement, from a portion of the proceeds of the
sale of the Certificates). 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 Delivery Date to the purchase
price of the Equipment Notes, shall be re-deposited by the Trustee with the
Depositary on the Applicable Delivery Date in accordance with the terms of the
Deposit Agreement.
Section 2.02. Withdrawal of Deposits. If any Deposits
remain outstanding on the Business Day next succeeding the Cut-Off Date, (i)
(A) the Trustee shall give the Escrow Agent notice that the Trustee's
obligation to purchase Equipment Notes under the Note Purchase Agreement 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") and (B) the Trustee will make
a demand upon the Company under the Note Purchase Agreement for an amount equal
to the Special Redemption Premium, such payment to be made on the Final
Withdrawal Date.
Section 2.03. Acceptance by Trustee. The Trustee, upon the
execution and delivery of this 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 Certificateholders, upon the trusts herein set
forth. Subject to Section 7.14, the Trustee shall take all actions reasonably
necessary to effect the registration of all such Equipment Notes in the name of
the Subordination Agent. By its payment for and acceptance of each Certificate
issued to it under this Agreement, each initial Certificateholder as grantor of
the Trust thereby joins in the creation and declaration of the Trust.
Section 2.04. Limitation of Powers. The Trust is constituted
solely for the purpose of making the investment in the Equipment Notes, and,
except as set forth herein, the Trustee shall not be authorized or empowered to
acquire any other investments or engage in any other activities and, in
particular, the Trustee shall not be authorized or empowered to do anything
that would cause such Trust to fail to qualify as a "grantor
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trust" for federal income tax purposes (including as subject to this
restriction, acquiring any Aircraft (as defined in the respective Indentures)
by bidding such Equipment Notes or otherwise, or taking any action with respect
to any such Aircraft once acquired).
ARTICLE III
THE CERTIFICATES
Section 3.01. Title, Form, Denomination and Execution of
Certificates. (a) The Initial Certificates shall be known as the "7.461%
Initial Pass Through Certificates, Series 1997-1B-0" and the Exchange
Certificates shall be known as the "7.461% Exchange Pass Through Certificates,
Series 1997-1B-O", in each case, of the Trust. Each Certificate will represent
a fractional undivided interest in the Trust and shall be substantially in the
form set forth as Exhibit A hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the Trustee or the officers executing
such Certificates, as evidenced by the Trustee's or officer's execution of the
Certificates. At the Escrow Agent's request under the Escrow Agreement, the
Trustee shall affix the corresponding Escrow Receipt to each Certificate. In
any event, any transfer or exchange of any 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 Certificate shall be permitted
unless the corresponding Escrow Receipt is attached thereto and also is so
transferred or exchanged. By acceptance of any Certificate to which an Escrow
Receipt is attached, each Holder of such a Certificate acknowledges and accepts
the restrictions on transfer of the Escrow Receipt set forth herein and in the
Escrow Agreement.
(b) The Initial Certificates shall be issued only in
fully registered form without coupons and only in denominations of $100,000 or
integral multiples of $1,000 in excess thereof, except that one Certificate may
be issued in a different denomination. The Exchange Certificates will be
issued in denominations of $1,000 or integral multiples thereof, except that
one Certificate may be issued in a different denomination.
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Each Certificate shall be dated the date of its authentication. The aggregate
Fractional Undivided Interest of Certificates shall not at any time exceed
$148,333,000.
(c) The Initial Certificates offered and sold in reliance
on Rule 144A shall be issued in the form of one or more global Certificates
substantially in the form of Exhibit A hereto with such applicable legends as
are provided for in Section 3.02 (each a "Restricted Global Certificate") duly
executed and authenticated by the Trustee as hereinafter provided. Such
Restricted Global Certificates shall be in registered form and be registered in
the name of DTC and deposited with the Trustee, at its Corporate Trust Office,
as custodian for DTC. The aggregate principal amount of any Restricted Global
Certificate may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for DTC for such Restricted Global
Certificate, as provided in Section 3.06 hereof, which adjustments shall be
conclusive as to the aggregate principal amount of any such Global Certificate.
(d) The Initial Certificates offered and sold outside the
United States in reliance on Regulation S shall be issued in the form of one or
more global Certificates substantially in the form of Exhibit A hereto (each a
"Regulation S Global Certificate") duly executed and authenticated by the
Trustee as hereinafter provided. Such Regulation S Global Certificates shall
be in registered form and be registered in the name of DTC and deposited with
the Trustee, at its Corporate Trust Office, as custodian for DTC, for credit
initially and during the Restricted Period (hereinafter defined) to the
respective accounts of beneficial owners of such Certificates (or to such other
accounts as they may direct) at ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels office, as operator of Euroclear or Cedel. As used herein, the term
"Restricted Period", with respect to the Regulation S Global Certificates
offered and sold in reliance on Regulation S, means the period of 40
consecutive days beginning on and including the later of (i) the day on which
the Certificates are first offered to persons other than distributors (as
defined in Regulation S) in reliance on Regulation S and (ii) the date of the
closing of the offering under the Certificate Purchase Agreement. The
aggregate principal amount of any Regulation S Global Certificate may from time
to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for DTC for such Global Certificate, as provided in
Section 3.06 hereof, which adjustments shall be
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conclusive as to the aggregate principal amount of any such Global Certificate.
The Restricted Global Certificate and Regulation S Global Certificate are
sometimes collectively referred to herein as the "Global Certificates".
(e) Initial Certificates offered and sold to any
Institutional Accredited Investor which is not a QIB in a transaction exempt
from registration under the Securities Act (and other than as described in
Section 3.01(d)) shall be issued substantially in the form of Exhibit A hereto
in definitive, fully registered form without interest coupons with such
applicable legends as are provided for in Section 3.02 (the "Restricted
Definitive Certificates") duly executed and authenticated by the Trustee as
hereinafter provided. Certificates issued pursuant to Section 3.05(b) in
exchange for interests in a Regulation S Global Certificate shall be issued in
definitive, fully registered form without interest coupons (the "Regulation S
Definitive Certificates"). The Restricted Definitive Certificates and the
Regulation S Definitive Certificates are sometimes collectively referred to
herein as the "Definitive Certificates".
(f) The Exchange Certificates shall be issued in the form
of one or more global Certificates substantially in the form of Exhibit A
hereto (each, a "Global Exchange Certificate"), except that (i) the Restricted
Legend (hereinafter defined) shall be omitted and (ii) such Exchange
Certificates shall contain such appropriate insertions, omissions,
substitutions and other variations from the form set forth in Exhibit A hereto
relating to the nature of the Exchange Certificates as the Responsible Officer
of the Trustee executing such Exchange Certificates on behalf of the Trust may
determine, as evidenced by such officer's execution on behalf of the Trust of
such Exchange Certificates. Such Global Exchange Certificates shall be in
registered form and be registered in the name of DTC and deposited with the
Trustee, at its Corporate Trust Office, as custodian for DTC. The aggregate
principal amount of any Global Exchange Certificate may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for DTC for such Global Exchange Certificate, which adjustments shall
be conclusive as to the aggregate principal amount of any such Global Exchange
Certificate. Subject to clause (i) and (ii) of the first sentence of this
Section 3.01(f), the terms hereof applicable to Restricted Global
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Certificates and/or Global Certificates shall apply to the Global Exchange
Certificates, mutatis mutandis.
(g) The definitive Certificates shall be in registered
form and shall be typed, printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any other manner, all as
determined by the officers executing such Certificates, as evidenced by their
execution of such Certificates.
Section 3.02. Restrictive Legends. All Initial Certificates
issued pursuant to this Agreement for resale pursuant to Rule 144A or offered
and sold to any Institutional Accredited Investor which is not a QIB (including
any Global Certificate issued upon registration of transfer, in exchange for or
in lieu of such Certificates) shall be "Restricted Certificates" and shall bear
a legend to the following effect (the "Restricted Legend") unless the Company
and the Trustee determine otherwise consistent with applicable law:
"THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY PERSONS EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS CERTIFICATE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; (2) AGREES THAT
IT WILL NOT WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE
OF THIS CERTIFICATE OR THE LAST DATE ON WHICH THIS CERTIFICATE WAS
HELD BY CONTINENTAL AIRLINES, INC., THE TRUSTEE OR ANY AFFILIATE OF
ANY OF SUCH PERSONS RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE
EXCEPT (A) TO CONTINENTAL AIRLINES, INC., (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE) OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT; AND (3) AGREES THAT IF IT SHOULD
RESELL OR
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OTHERWISE TRANSFER THIS CERTIFICATE IT WILL DELIVER TO EACH PERSON TO
WHOM THIS CERTIFICATE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
CERTIFICATE WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE
OF THIS CERTIFICATE OR THE LAST DATE ON WHICH THIS CERTIFICATE WAS
HELD BY CONTINENTAL AIRLINES, INC., THE TRUSTEE OR ANY AFFILIATE OF
ANY OF SUCH PERSONS, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER
AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE
PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN
VIOLATION OF THE FOREGOING RESTRICTIONS."
Each Global Certificate shall bear the following legend on the
face thereof:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS
CERTIFICATE 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 HEREON 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 AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 3.05 AND
3.06 OF THE PASS THROUGH TRUST AGREEMENT REFERRED TO HEREIN."
Section 3.03. Authentication of Certificates. (a) On the
Issuance Date, the Trustee shall duly execute, authenticate and deliver
Certificates in authorized denominations equalling in the aggregate the amount
set forth, with respect to the Trust, in
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Schedule II to the Certificate Purchase Agreement, evidencing the entire
ownership of the Trust, which amount equals the maximum aggregate principal
amount of Equipment Notes which may be purchased by the Trustee pursuant to the
Note Purchase Agreement.
(b) No Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose, unless there appears
on such Certificate a certificate of authentication substantially in the form
provided for herein executed by the Trustee by the manual signature of one of
its authorized signatories, and such certificate upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder.
Section 3.04. Transfer and Exchange. The Trustee shall cause
to be kept at the office or agency to be maintained by it in accordance with
the provisions of Section 7.12 a register (the "Register") of the Certificates
in which, subject to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of such Certificates and of
transfers and exchanges of such Certificates as herein provided. The Trustee
shall initially be the registrar (the "Registrar") for the purpose of
registering such Certificates and transfers and exchanges of such Certificates
as herein provided.
All Certificates issued upon any registration of transfer or
exchange of Certificates shall be valid obligations of the Trust, evidencing
the same interest therein, and entitled to the same benefits under this Trust
Agreement, as the Certificates surrendered upon such registration of transfer
or exchange.
A Certificateholder may transfer a Certificate, or request
that a Certificate be exchanged for Certificates in an aggregate Fractional
Undivided Interest equal to the Fractional Undivided Interest of such
Certificate surrendered for exchange of other authorized denominations, by
surrender of such Certificate to the Trustee with the form of transfer notice
thereon duly completed and executed, and otherwise complying with the terms of
this Agreement, including providing evidence of compliance with any
restrictions on transfer, in form satisfactory to the Trustee and the
Registrar; provided that no exchanges of Initial Certificates for Exchange
Certificates shall occur until an Exchange Offer Registration Statement shall
have been declared effective by the SEC (notice of which shall be
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provided to the Trustee by the Company). No such transfer shall be effected
until, and such transferee shall succeed to the rights of a Certificateholder
only upon, final acceptance and registration of the transfer by the Registrar
in the Register. Prior to the registration of any transfer by a
Certificateholder as provided herein, the Trustee shall treat the person in
whose name the Certificate is registered as the owner thereof for all purposes,
and the Trustee shall not be affected by notice to the contrary. Furthermore,
DTC shall, by acceptance of a Global Certificate, agree that transfers of
beneficial interests in such Global Certificate may be effected only through a
book-entry system maintained by DTC (or its agent), and that ownership of a
beneficial interest in the Certificate shall be required to be reflected in a
book-entry. When Certificates are presented to the Registrar with a request to
register the transfer thereof or to exchange them for other authorized
denominations of a Certificate in a Fractional Undivided Interest equal to the
aggregate Fractional Undivided Interest of Certificates surrendered for
exchange, the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transactions are met.
To permit registrations of transfers and exchanges in
accordance with the terms, conditions and restrictions hereof, the Trustee
shall execute and authenticate Certificates at the Registrar's request. No
service charge shall be made to a Certificateholder for any registration of
transfer or exchange of Certificates, but the Trustee shall require payment of
a sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates. All Certificates
surrendered for registration of transfer or exchange shall be canceled and
subsequently destroyed by the Trustee.
Section 3.05. Book-Entry Provisions for Restricted Global
Certificates and Regulation S Global Certificates. (a) Members of, or
participants in, DTC ("Agent Members") shall have no rights under this
Agreement with respect to any Global Certificate held on their behalf by DTC,
or the Trustee as its custodian, and DTC may be treated by the Trustee and any
agent of the Trustee as the absolute owner of such Global Certificate for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Trustee or any agent of the Trustee from giving effect to any
written certification, proxy or other authorization furnished by DTC or shall
impair, as between DTC
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and its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any Certificate. Upon the issuance of
any Global Certificate, the Registrar or its duly appointed agent shall record
DTC as the registered holder of such Global Certificate.
(b) Transfers of any Global Certificate shall be limited
to transfers of such Restricted Global Certificate or Regulation S Global
Certificate in whole, but not in part, to DTC. Beneficial interests in the
Restricted Global Certificate and any Regulation S Global Certificate may be
transferred in accordance with the rules and procedures of DTC and the
provisions of Section 3.06. Beneficial interests in a Restricted Global
Certificate or a Regulation S Global Certificate shall be delivered to all
beneficial owners thereof in the form of Restricted Definitive Certificates or
Regulation S Definitive Certificates, as the case may be, if (i) DTC notifies
the Trustee that it is unwilling or unable to continue as depositary for such
Restricted Global Certificate or Regulation S Global Certificate, as the case
may be, and a successor depositary is not appointed by the Trustee within 90
days of such notice, and (ii) after the occurrence and during the continuance
of an Event of Default, owners of beneficial interests in a Global Certificate
with Fractional Undivided Interests aggregating not less than a majority in
interest in the Trust advise the Trustee, the Company and DTC through Agent
Members in writing that the continuation of a book-entry system through DTC or
its successor is no longer in their best interests.
(c) Any beneficial interest in one of the Global Certificates
that is transferred to a Person who takes delivery in the form of an interest
in another Global Certificate will, upon such transfer, cease to be an interest
in such Global Certificate and become an interest in the other Global
Certificate and, accordingly, will thereafter be subject to all transfer
restrictions, if any, and other procedures applicable to beneficial interests
in such other Global Certificate for as long as it remains such an interest.
(d) In connection with the transfer of an entire Restricted
Global Certificate or an entire Regulation S Global Certificate to the
beneficial owners thereof pursuant to paragraph (b) of this Section 3.05, such
Restricted Global Certificate or Regulation S Global Certificate, as the case
may be, shall be deemed to be surrendered to the Trustee for
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cancellation, and the Trustee shall execute, authenticate and deliver, to each
beneficial owner identified by DTC in exchange for its beneficial interest in
such Restricted Global Certificate or Regulation S Global Certificate, as the
case may be, an equal aggregate principal amount of Restricted Definitive
Certificates or Regulation S Definitive Certificates, as the case may be, of
authorized denominations. None of the Company, the Registrar, the Paying Agent
nor the Trustee shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
registration instructions. Upon the issuance of Definitive Certificates, the
Trustee shall recognize the Person in whose name the Definitive Certificates
are registered in the Register as Certificateholders hereunder. Neither the
Company nor the Trustee shall be liable if the Trustee or the Company is unable
to locate a qualified successor clearing agency.
(e) Any Definitive Certificate delivered in exchange for an
interest in the Restricted Global Certificate pursuant to paragraph (b) of this
Section 3.05 shall, except as otherwise provided by paragraph (e) of Section
3.06, bear the Restricted Legend.
(f) Prior to the expiration of the Restricted Period, any
Regulation S Definitive Certificate delivered in exchange for an interest in a
Regulation S Global Certificate pursuant to paragraph (b) of this Section shall
bear the Restricted Legend.
(g) The registered holder of any Restricted Global
Certificate or Regulation S Global Certificate may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Agreement or the Certificates.
Section 3.06. Special Transfer Provisions. Unless and until
(i) an Initial Certificate is sold under an effective Shelf Registration
Statement, or (ii) an Initial Certificate is exchanged for an Exchange
Certificate pursuant to an effective Exchange Offer Registration Statement, in
each case pursuant to the terms of the Registration Rights Agreement, the
following provisions shall apply to such Initial Certificates:
(a) Transfers to Non-QIB Institutional Accredited
Investors. The following provisions shall apply with
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respect to the registration of any proposed transfer of a Certificate
to any Institutional Accredited Investor which is neither a QIB nor a
Non-U.S. Person:
(i) The Registrar shall register the transfer of
any Certificate, whether or not bearing the Restricted Legend,
only if (x) the requested transfer is at least two years after
the later of the original issue date of the Certificates and
the last date on which such Certificate was held by the
Company, the Trustee or any affiliate of any of such Persons
or (y) the proposed transferor is an Initial Purchaser who is
transferring Certificates purchased under the Certificates
Purchase Agreement and the proposed transferee has delivered
to the Registrar a letter substantially in the form of Exhibit
C hereto and the aggregate principal amount of the
Certificates being transferred is at least $100,000. Except
as provided in the foregoing clause (y), the Registrar shall
not register the transfer of any Certificate to any
Institutional Accredited Investor which is neither a QIB nor a
Non- U.S. Person.
(ii) If the proposed transferor is an Agent Member
holding a beneficial interest in a Restricted Global
Certificate, upon receipt by the Registrar of (x) the
documents, if any, required by paragraph (i) and (y)
instructions given in accordance with DTC's and the
Registrar's procedures, the Registrar shall reflect on its
books and records the date of the transfer and a decrease in
the principal amount of such Restricted Global Certificate in
an amount equal to the principal amount of the beneficial
interest in such Restricted Global Certificate to be
transferred, and the Trustee shall execute, authenticate and
deliver to the transferor or at its direction, one or more
Restricted Definitive Certificates of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall
apply with respect to the registration of any proposed transfer of an
Initial Certificate to a QIB (excluding Non-U.S. Persons):
(i) If the Certificate to be transferred consists
of Restricted Definitive Certificates, or of
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an interest in any Regulation S Global Certificate during the
Restricted Period, the Registrar shall register the transfer
if such transfer is being made by a proposed transferor who
has checked the box provided for on the form of Initial
Certificate stating, or has otherwise advised the Trustee and
the Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee
who has signed the certification provided for on the form of
Initial Certificate stating, or has otherwise advised the
Trustee and the Registrar in writing, that it is purchasing
the Initial Certificate for its own account or an account with
respect to which it exercises sole investment discretion and
that it, or the Person on whose behalf it is acting with
respect to any such account, is a QIB within the meaning of
Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received
such information regarding the Trust and/or the Company as it
has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the
transferor is relying upon its foregoing representations in
order to claim the exemption from registration provided by
Rule 144A.
(ii) Upon receipt by the Registrar of the
documents required by clause (i) above and instructions given
in accordance with DTC's and the Registrar's procedures
therefor, the Registrar shall reflect on its books and records
the date of such transfer and an increase in the principal
amount of a Restricted Global Certificate in an amount equal
to the principal amount of the Restricted Definitive
Certificates or interests in such Regulation S Global
Certificate, as the case may be, being transferred, and the
Trustee shall cancel such Definitive Certificates or decrease
the amount of such Regulation S Global Certificate so
transferred.
(c) Transfers of Interests in the Regulation S Global
Certificate or Regulation S Definitive Certificates. After the
expiration of the Restricted Period, the Registrar shall register any
transfer of interests in any Regulation S Global Certificate or
Regulation S Definitive Certificates without requiring any additional
certification. Until the expiration of the Restricted Period,
interests in the
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Regulation S Global Certificate may only be held through Agent Members
acting for and on behalf of Euroclear and Cedel.
(d) Transfers to Non-U.S. Persons at Any Time. The
following provisions shall apply with respect to any registration of
any transfer of an Initial Certificate to a Non-U.S. Person:
(i) Prior to the expiration of the Restricted
Period, the Registrar shall register any proposed transfer of
an Initial Certificate to a Non-U.S.Person upon receipt of a
certificate substantially in the form set forth as Exhibit B
hereto from the proposed transferor.
(ii) After the expiration of the Restricted
Period, the Registrar shall register any proposed transfer to
any Non-U.S. Person if the Certificate to be transferred is a
Restricted Definitive Certificate or an interest in a
Restricted Global Certificate, upon receipt of a certificate
substantially in the form of Exhibit B from the proposed
transferor. The Registrar shall promptly send a copy of such
certificate to the Company.
(iii) Upon receipt by the Registrar of (x) the
documents, if any, required by clause (ii) and (y)
instructions in accordance with DTC's and the Registrar's
procedures, the Registrar shall reflect on its books and
records the date of such transfer and a decrease in the
principal amount of such Restricted Global Certificate in an
amount equal to the principal amount of the beneficial
interest in such Restricted Global Certificate to be
transferred, and, upon receipt by the Registrar of
instructions given in accordance with DTC's and the
Registrar's procedures, the Registrar shall reflect on its
books and records the date and an increase in the principal
amount of the Regulation S Global Certificate in an amount
equal to the principal amount of the Restricted Definitive
Certificate or the Restricted Global Certificate, as the case
may be, to be transferred, and the Trustee shall cancel the
Definitive Certificate, if any, so
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transferred or decrease the amount of such Restricted Global
Certificate.
(e) Restricted Legend. Upon the transfer, exchange or
replacement of Certificates not bearing the Restricted Legend, the
Registrar shall deliver Certificates that do not bear the Restricted
Legend. Upon the transfer, exchange or replacement of Certificates
bearing the Restricted Legend, the Registrar shall deliver only
Certificates that bear the Restricted Legend unless either (i) the
circumstances contemplated by paragraph (d)(ii) of this Section 3.06
exist or (ii) there is delivered to the Registrar an Opinion of
Counsel to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance
with the provisions of the Securities Act.
(f) General. By acceptance of any Certificate bearing
the Restricted Legend, each Holder of such a Certificate acknowledges
the restrictions on transfer of such Certificate set forth in this
Agreement and agrees that it will transfer such Certificate only as
provided in this Agreement. The Registrar shall not register a
transfer of any Certificate unless such transfer complies with the
restrictions on transfer, if any, of such Certificate set forth in
this Agreement. In connection with any transfer of Certificates, each
Certificateholder agrees by its acceptance of the Certificates to
furnish the Registrar or the Trustee such certifications, legal
opinions or other information as either of them may reasonably require
to confirm that such transfer is being made pursuant to an exemption
from, or a transaction not subject to, the registration requirements
of the Securities Act and in accordance with the terms and provisions
of this Article III; provided that the Registrar shall not be required
to determine the sufficiency of any such certifications, legal
opinions or other information.
Until such time as no Certificates remain Outstanding, the
Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 3.05 or this Section 3.06. The
Trustee, if not the Registrar at such time, shall have the right to inspect and
make copies of all such letters, notices or other written communications at any
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reasonable time upon the giving of reasonable written notice to the Registrar.
Section 3.07. Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate is surrendered to the Registrar
or the Registrar receives evidence to its satisfaction of the destruction, loss
or theft of any Certificate and (b) there is delivered to the Registrar and the
Trustee such security, indemnity or bond, as may be required by them to save
each of them harmless, then, in the absence of notice to the Registrar or the
Trustee that such destroyed, lost or stolen Certificate has been acquired by a
bona fide purchaser, and provided that the requirements of Section 8-405 of the
Uniform Commercial Code in effect in any applicable jurisdiction are met, the
Trustee shall execute, authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Certificate, a new Certificate or
Certificates, in authorized denominations and of like Fractional Undivided
Interest and bearing a number not contemporaneously outstanding.
In connection with the issuance of any new Certificate under
this Section 3.07, the Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee
and the Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section 3.07
shall constitute conclusive evidence of the appropriate Fractional Undivided
Interest in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen
Certificates.
Section 3.08. Persons Deemed Owners. Prior to due
presentment of a Certificate for registration of transfer, the Trustee, the
Registrar and any Paying Agent may treat the Person in whose name any
Certificate is registered (as of the day of determination) as the owner of such
Certificate for the purpose of receiving distributions pursuant to Article IV
and for all other purposes whatsoever, and none of the Trustee, the ▇▇▇▇▇▇▇▇▇
▇▇
41
or any Paying Agent shall be affected by any notice to the contrary.
Section 3.09. Cancellation. All Certificates surrendered for
payment or transfer or exchange shall, if surrendered to the Trustee or any
agent of the Trustee other than the Registrar, be delivered to the Registrar
for cancellation and shall promptly be canceled by it. No Certificates shall
be authenticated in lieu of or in exchange for any Certificates canceled as
provided in this Section, except as expressly permitted by this Agreement. All
canceled Certificates held by the Registrar shall be destroyed and a
certification of their destruction delivered to the Trustee.
Section 3.10. Temporary Certificates. Until definitive
Certificates are ready for delivery, the Trustee shall authenticate temporary
Certificates. Temporary Certificates shall be substantially in the form of
definitive Certificates but may have insertions, substitutions, omissions and
other variations determined to be appropriate by the officers executing the
temporary Certificates, as evidenced by their execution of such temporary
Certificates. If temporary Certificates are issued, the Trustee will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee designated for such purpose
pursuant to Section 7.12, without charge to the Certificateholder. Upon
surrender for cancellation of any one or more temporary Certificates, the
Trustee shall execute, authenticate and deliver in exchange therefor a like
face amount of definitive Certificates of authorized denominations. Until so
exchanged, the temporary Certificates shall be entitled to the same benefits
under this Agreement as definitive Certificates.
Section 3.11. Limitation of Liability for Payments. All
payments and distributions made to Certificateholders in respect of the
Certificates 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 Article IV of
this Agreement. Each Certificateholder, by its acceptance of a Certificate,
agrees that it will look solely to the income and proceeds from the Trust
Property for any payment or distribution
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due to such Certificateholder pursuant to the terms of this Agreement and that
it will not have any recourse to the Company, the Trustee, the Loan Trustees,
the Liquidity Providers, the Owner Trustees or the Owner Participants, except
as otherwise expressly provided herein or in the Intercreditor Agreement.
The Company is a party to this Agreement solely for purposes
of meeting the requirements of the Trust Indenture Act, and therefore shall not
have any right, obligation or liability hereunder (except as otherwise
expressly provided herein).
Section 3.12 ERISA Restrictive Legend. All Certificates
issued pursuant to this Agreement shall bear a legend to the following effect
(the "ERISA Legend") unless the Company and the Trustee determine otherwise
consistent with applicable law:
"BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT (A) IT
IS NOT A PLAN TRANSFEREE (AS DEFINED IN THE PASS THROUGH TRUST
AGREEMENT) OR (B) IT IS AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT TO ACQUIRE THIS CERTIFICATE, AND THE CONDITIONS OF
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ISSUED BY THE U.S.
DEPARTMENT OF LABOR HAVE BEEN AND WILL CONTINUE TO BE SATISFIED IN
CONNECTION WITH ITS PURCHASE AND HOLDING OF THIS CERTIFICATE. THE PASS
THROUGH TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF
THE FOREGOING RESTRICTIONS."
By acceptance of any Certificate bearing the ERISA Legend,
each Holder of such a Certificate acknowledges the restrictions on transfer of
such Certificate set forth in this Agreement and agrees that it will transfer
such Certificate only as provided in this Agreement. The Registrar shall not
register a transfer of any Certificate unless such transfer complies with the
restrictions on transfer, if any, of such Certificate set forth in such legend.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments
Account. (a) The Trustee shall establish and maintain on behalf
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of the Certificateholders a Certificate Account as one or more
non-interest-bearing accounts. The Trustee shall hold the Certificate Account
in trust for the benefit of the Certificateholders, and shall make or permit
withdrawals therefrom only as provided in this Agreement. On each day when a
Scheduled Payment is made to the Trustee under the Intercreditor Agreement, the
Trustee upon receipt thereof shall immediately deposit the aggregate amount of
such Scheduled Payment in the Certificate Account.
(b) The Trustee shall establish and maintain on behalf of
the Certificateholders a Special Payments Account as one or more accounts,
which shall be non-interest bearing except as provided in Section 4.04. The
Trustee shall hold the Special Payments Account in trust for the benefit of the
Certificateholders and shall make or permit withdrawals therefrom only as
provided in this 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 Special Redemption Premium to the Trustee under the Note Purchase
Agreement, the Trustee, upon receipt thereof, shall immediately deposit the
aggregate amount of such Special Payments in the Special Payments Account.
(c) The Trustee shall cause the Subordination Agent to
present to the related Loan Trustee of each Equipment Note such Equipment Note
on the date of its stated final maturity or, in the case of any Equipment Note
which is to be redeemed in whole pursuant to the related Indenture, on the
applicable redemption date under such Indenture.
Section 4.02. Distributions from Certificate Account and
Special Payments Account. (a) On each Regular Distribution Date or as soon
thereafter as the Trustee has confirmed receipt of the payment of all or any
part of the Scheduled Payments due on such date, the Trustee shall distribute
out of the Certificate Account the entire amount deposited therein pursuant to
Section 4.01(a). There shall be so distributed to each Certificateholder of
record on the Record Date with respect to such Regular Distribution Date (other
than as provided in Section 11.01 concerning the final distribution) by check
mailed to such Certificateholder, at the address appearing in the Register,
such Certificateholder's pro rata share (based on the Fractional Undivided
Interest in the Trust held by such Certificateholder) of the total amount in
the Certificate Account, except that, with respect to Certificates registered
on the Record Date in the name
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of DTC, such distribution shall be made by wire transfer in immediately
available funds to the account designated by DTC.
(b) 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 in the related Trust or
realized upon the sale of such Equipment Notes or receipt of the Special
Redemption Premium, the Trustee shall distribute out of the Special Payments
Account the entire amount of such Special Payment deposited therein pursuant to
Section 4.01(b). There shall be so distributed to each Certificateholder of
record on the Record Date with respect to such Special Distribution Date (other
than as provided in Section 11.01 concerning the final distribution) by check
mailed to such Certificateholder, at the address appearing in the Register,
such Certificateholder's pro rata share (based on the Fractional Undivided
Interest in the Trust held by such Certificateholder) of the total amount in
the Special Payments Account on account of such Special Payment, except that,
with respect to Certificates registered on the Record Date in the name of DTC,
such distribution shall be made by wire transfer in immediately available funds
to the account designated by DTC.
(c) The Trustee shall, at the expense of the Company,
cause notice of each Special Payment to be mailed to each Certificateholder at
his address as it appears in the Register. In the event of redemption or
purchase of Equipment Notes held in the Trust, such notice shall be mailed not
less than 20 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 event of the
payment of a Special Redemption Premium by the Company to the Trustee under the
Note Purchase Agreement, such notice shall be mailed, together with the notice
by the Escrow Paying Agent under Section 2.06 of the Escrow Agreement, not less
than 20 days prior to the Special Distribution Date for such amount, which
Special Distribution Date shall be the Final Withdrawal Date. 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 20 days after the date of such notice and as soon as
practicable thereafter. Notices mailed by the Trustee shall set forth:
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(i) the Special Distribution Date and the Record
Date therefor (except as otherwise provided in Section 11.01),
(ii) the amount of the Special Payment for each
$1,000 face amount 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 Certificate.
If the amount of (i) premium, if any, payable upon the
redemption or purchase of an Equipment Note or (ii) the Special Redemption
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 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 Certificateholder at its address as it
appears on the Register.
Section 4.03. Statements to Certificateholders. (a) On each
Distribution Date, the Trustee will include with each distribution to
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, including any Special Redemption Premium, 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 Certificate
as to (ii), (iii), (iv) and (v) below) the following information:
(i) the aggregate amount of funds distributed on
such Distribution Date hereunder and under the Escrow
Agreement, indicating the amount allocable to each source;
(ii) the amount of such distribution hereunder
allocable to principal and the amount allocable to
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premium (including the Special Redemption Premium), if any;
(iii) the amount of such distribution hereunder
allocable to interest; and
(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 Deposits; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Certificates registered in the name of
DTC, on the Record Date prior to each Distribution Date, the Trustee will
request from DTC a securities position listing setting forth the names of all
Agent Members reflected on DTC's books as holding interests in the Certificates
on such Record Date. On each Distribution Date, the Trustee will mail to each
such Agent Member the statement described above and will make available
additional copies as requested by such Agent Member for forwarding to holders
of interests in the 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 a 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 a
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 a Certificateholder shall reasonably request as necessary for
the purpose of such 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 Agent Members and shall be delivered
by the Trustee to such Agent Members to be available for forwarding by such
Agent Members to the holders of interests in the Certificates in the manner
described in Section 4.03(a).
(c) Promptly following (i) the Delivery Period Termination
Date, if there has been any change in the information
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set forth in clauses (x), (y) and (z) below from that set forth in page 81 of
the Offering Circular, and (ii) any early redemption of purchase of, or any
default in the payment of principal or interest in respect of, any of the
Equipment Notes held in the Trust, or any Final Withdrawal, the Trustee shall
furnish to 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 Certificates registered in the
name of DTC, on the Delivery Period Termination Date, the Trustee will request
from DTC a securities position listing setting forth the names of all Agent
Members reflected on DTC's books as holding interests in the Certificates on
such date. The Trustee will mail to each such Agent Member the statement
described above and will make available additional copies as requested by such
Agent Member for forwarding to holders of interests in the Certificates.
Section 4.04. Investment of Special Payment Moneys. Any
money received by the Trustee pursuant to Section 4.01(b) representing a
Special Payment which is not distributed on the date received shall, to the
extent practicable, be invested in Permitted Investments by the Trustee pending
distribution of such Special Payment pursuant to Section 4.02. Any investment
made pursuant to this Section 4.04 shall be in such Permitted Investments
having maturities not later than the date that such moneys are required to be
used to make the payment required under Section 4.02 on the applicable Special
Distribution Date and the Trustee shall hold any such Permitted Investments
until maturity. The Trustee shall have no liability with respect to any
investment made pursuant to this Section 4.04, other than by reason of the
willful misconduct or negligence of the Trustee. All income and earnings from
such investments shall be distributed on such Special Distribution Date as part
of such Special Payment.
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence. The
Company, at its own cost and expense, will do or cause to be done
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all things necessary to preserve and keep in full force and effect its
corporate existence, rights and franchises, except as otherwise specifically
permitted in Section 5.02; provided, however, that the Company shall not be
required to preserve any right or franchise if the Company shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company.
Section 5.02. Consolidation, Merger, etc. The Company shall
not consolidate with or merge into any other corporation or convey, transfer or
lease substantially all of its assets as an entirety to any Person unless:
(a) the corporation formed by such consolidation or into
which the Company is merged or the Person that acquires by conveyance,
transfer or lease substantially all of the assets of the Company as an
entirety shall be (i) organized and validly existing under the laws of
the United States of America or any state thereof or the District of
Columbia, (ii) a "citizen of the United States" as defined in 49
U.S.C. 40102(a)(15), as amended, and (iii) a United States
certificated air carrier, if and so long as such status is a condition
of entitlement to the benefits of Section 1110 of the Bankruptcy
Reform Act of 1978, as amended (11 U.S.C. Section 1110), with respect
to the Leases;
(b) the corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance, transfer or lease substantially all of the assets of the
Company as an entirety shall execute and deliver to the Trustee a duly
authorized, valid, binding and enforceable agreement in form and
substance reasonably satisfactory to the Trustee containing an
assumption by such successor corporation or Person of the due and
punctual performance and observance of each covenant and condition of
this Agreement, the Other Pass Through Trust Agreements and each
Financing Document to be performed or observed by the Company; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate of the Company and an Opinion of Counsel of the
Company reasonably satisfactory to the Trustee, each stating that such
consolidation, merger, conveyance, transfer or lease and the
assumption agreement mentioned in clause (b) above comply with this
Section 5.02
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and that all conditions precedent herein provided for relating to such
transaction have been complied with.
Upon any consolidation or merger, or any conveyance, transfer
or lease of substantially all of the assets of the Company as an entirety in
accordance with this Section 5.02, the successor corporation or Person formed
by such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Agreement
with the same effect as if such successor corporation or Person had been named
as the Company herein. No such conveyance, transfer or lease of substantially
all of the assets of the Company as an entirety shall have the effect of
releasing any successor corporation or Person which shall have become such in
the manner prescribed in this Section 5.02 from its liability in respect of
this Agreement and any Financing Document to which it is a party.
ARTICLE VI
DEFAULT
Section 6.01. Events of Default. (a) Exercise of
Remedies. Upon the occurrence and during the continuation of any Indenture
Default under any Indenture, the Trustee may, to the extent it is the
Controlling Party at such time (as determined pursuant to the Intercreditor
Agreement), direct the exercise of remedies as provided in the Intercreditor
Agreement.
(b) Purchase Rights of Certificateholders. (i) At any
time after the occurrence and during the continuation of a Triggering
Event, each Certificateholder shall have the right to purchase all,
but not less than all, of the Class A Certificates upon ten days'
written notice to the Class A Trustee and each other
Certificateholder, provided that (A) if prior to the end of such
ten-day period any other Certificateholder notifies such purchasing
Certificateholder that such other Certificateholder wants to
participate in such purchase, then such other Certificateholder may
join with the purchasing Certificateholder to purchase all, but not
less than all, of the Class A Certificates pro rata based on the
outstanding principal amount of the Certificates held by each such
Certificateholder and (B) if prior to the end of such ten-day period
any other
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Certificateholder fails to notify the purchasing Certificateholder of
such other Certificateholder's desire to participate in such a
purchase, then such other Certificateholder shall lose its right to
purchase the Class A Certificates pursuant to this Section 6.01(b)(i).
(ii) By acceptance of its Certificate, each
Certificateholder agrees that at any time after the occurrence
and during the continuation of a Triggering Event, each holder
of a Class C-I Certificate or Class C-II Certificate (a "Class
C Certificateholder") shall have the right (which shall not
expire upon any purchase of the Class A Certificates pursuant
to paragraph (i) above) to purchase all, but not less than
all, of the Class A Certificates and the Certificates upon ten
days' written notice to the Class A Trustee, the Trustee and
each other Class C Certificateholder, provided that (A) if
prior to the end of such ten-day period any other Class C
Certificateholder notifies such purchasing Class C
Certificateholder that such other Class C Certificateholder
wants to participate in such purchase, then such other Class C
Certificateholder may join with the purchasing Class C
Certificateholder to purchase all, but not less than all, of
the Class A Certificates and the Certificates pro rata based
on the Fractional Undivided Interest in the Class C-I Trust
and Class C-II Trust, taken as a whole, held by each such
Class C Certificateholder and (B) if prior to the end of such
ten-day period any other Class C Certificateholder fails to
notify the purchasing Class C Certificateholder of such other
Class C Certificateholder's desire to participate in such a
purchase, then such other Class C Certificateholder shall lose
its right to purchase the Class A Certificates and the
Certificates pursuant to this Section 6.01(b).
The purchase price with respect to the Certificates shall be
equal to the Pool Balance of the 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 Certificateholders under this
Agreement, the Intercreditor Agreement, the Escrow Agreement or any Financing
Document or on or in respect of the Certificates; provided, however, that (i)
if such purchase occurs after the
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record date specified in Section 2.03(b) of the Escrow Agreement relating to
the distribution of unused Deposits and accrued and unpaid interest thereunder,
such purchase price shall be reduced by the aggregate amount of unused Deposits
and interest to be distributed under the Escrow Agreement (which deducted
amounts shall remain distributable to, and may be retained by, the
Certificateholder as of such Record Date) and (ii) if such purchase occurs
after a Record Date, such purchase price shall be reduced by the amount to be
distributed hereunder on the related Distribution Date (which deducted amounts
shall remain distributable to, and may be retained by, the Certificateholder as
of such Record Date); provided, further, that no such purchase of Certificates
shall be effective unless the purchaser(s) shall certify to the Trustee that
contemporaneously with such purchase, such purchaser(s) is purchasing, pursuant
to the terms of this Agreement and the Other Pass Through Trust Agreements, the
Class A Certificates and the Certificates which are senior to the securities
held by such purchaser(s). Each payment of the purchase price of the
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 6.01(b). Each Certificateholder agrees by
its acceptance of its Certificate that it will, subject to Section 3.04 hereof,
upon payment from such Class C Certificateholder(s) of the purchase price set
forth in the first sentence of this paragraph, 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 Certificateholder in this Agreement, the Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity
Facility, the Financing Documents and all Certificates and Escrow Receipts held
by such 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 Certificateholder's obligations under this Agreement, the Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity
Facility, the Financing Documents and all such Certificates and Escrow
Receipts. The Certificates will be deemed to be purchased on the date payment
of the purchase price is made notwithstanding the failure of the
Certificateholders to deliver any Certificates (whether in the form of
Definitive Certificates or beneficial interests in Global
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Certificates) and, upon such a purchase, (i) the only rights of the
Certificateholders will be to deliver the Certificates to the purchaser(s) and
receive the purchase price for such Certificates and (ii) if the purchaser(s)
shall so request, such Certificateholder will comply with all the provisions of
Section 3.04 hereof to enable new 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 Certificates shall be borne by the purchaser
thereof.
As used in this Section 6.01(b), the terms "Class", "Class A
Certificate", "Class A Trustee", "Class C- I Certificate", "Class C-II
Certificate", "Class C-I Trust" and "Class C-II Trust" shall have the
respective meanings assigned to such terms in the Intercreditor Agreement.
Section 6.02. Incidents of Sale of Equipment Notes. Upon
any sale of all or any part of the Equipment Notes made either under the power
of sale given under this Agreement or otherwise for the enforcement of this
Agreement, the following shall be applicable:
(1) Certificateholders and Trustee May Purchase Equipment
Notes. Any Certificateholder, the Trustee in its individual or any
other capacity or any other Person may bid for and purchase any of the
Equipment Notes, and upon compliance with the terms of sale, may hold,
retain, possess and dispose of such Equipment Notes in their own
absolute right without further accountability.
(2) Receipt of Trustee Shall Discharge Purchaser. The
receipt of the Trustee making such sale shall be a sufficient
discharge to any purchaser for his purchase money, and, after paying
such purchase money and receiving such receipt, such purchaser or its
personal representative or assigns shall not be obliged to see to the
application of such purchase money, or be in any way answerable for
any loss, misapplication or non- application thereof.
(3) Application of Moneys Received upon Sale. Any moneys
collected by the Trustee upon any sale made either under the power of
sale given by this Agreement or otherwise for the enforcement of this
Agreement shall be applied as provided in Section 4.02.
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Section 6.03. Judicial Proceedings Instituted by Trustee;
Trustee May Bring Suit. If there shall be a failure to make payment of the
principal of, premium, if any, or interest on any Equipment Note, or if there
shall be any failure to pay Rent (as defined in the relevant Lease) under any
Lease when due and payable, then the Trustee, in its own name and as trustee of
an express trust, as holder of such Equipment Notes, to the extent permitted by
and in accordance with the terms of the Intercreditor Agreement and the
Financing Documents (subject to the rights of the applicable Owner Trustee or
Owner Participant to cure any such failure to pay principal of, premium, if
any, or interest on any Equipment Note or to pay Rent under any Lease in
accordance with the applicable Indenture), shall be entitled and empowered to
institute any suits, actions or proceedings at law, in equity or otherwise, for
the collection of the sums so due and unpaid on such Equipment Notes or under
such Lease and may prosecute any such claim or proceeding to judgment or final
decree with respect to the whole amount of any such sums so due and unpaid.
Section 6.04. Control by Certificateholders. Subject to
Section 6.03 and the Intercreditor Agreement, the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less
than a majority in interest in the Trust shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee with respect to the Trust or pursuant to the terms of the
Intercreditor Agreement, or exercising any trust or power conferred on the
Trustee under this Agreement or the Intercreditor Agreement, including any
right of the Trustee as Controlling Party under the Intercreditor Agreement or
as holder of the Equipment Notes, provided that
(1) such Direction shall not be in conflict with any rule
of law or with this Agreement and would not involve the Trustee in
personal liability or expense,
(2) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Certificateholders not
taking part in such Direction, and
(3) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such Direction.
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Section 6.05. Waiver of Past Defaults. Subject to the
Intercreditor Agreement, the Certificateholders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in the Trust (i) may on behalf of all of the Certificateholders waive any past
Event of Default hereunder and its consequences or (ii) if the Trustee is the
Controlling Party, may direct the Trustee to instruct the applicable Loan
Trustee to waive any past Indenture Default under any Indenture and its
consequences, and thereby annul any Direction given by such Certificateholders
or the Trustee to such Loan Trustee with respect thereto, except a default:
(1) in the deposit of any Scheduled Payment or Special
Payment under Section 4.01 or in the distribution of any payment under
Section 4.02 on the Certificates, or
(2) in the payment of the principal of (premium, if any)
or interest on the Equipment Notes, or
(3) in respect of a covenant or provision hereof which
under Article IX cannot be modified or amended without the consent of
each Certificateholder holding an Outstanding Certificate affected
thereby.
Upon any such waiver, such default shall cease to exist with
respect to the Certificates and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose and any direction given by the
Trustee on behalf of the Certificateholders to the relevant Loan Trustee shall
be annulled with respect thereto; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Upon any such waiver, the Trustee shall vote the Equipment Notes
issued under the relevant Indenture to waive the corresponding Indenture
Default.
Section 6.06. Right of Certificateholders to Receive
Payments Not to Be Impaired. Anything in this Agreement to the contrary
notwithstanding, including, without limitation, Section 6.07 hereof, but
subject to the Intercreditor Agreement, the right of any Certificateholder to
receive distributions of payments required pursuant to Section 4.02 hereof on
the Certificates when due, or to institute suit for the enforcement of any such
payment on or after the applicable Regular Distribution Date or Special
Distribution Date, shall not be
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impaired or affected without the consent of such Certificateholder.
Section 6.07. Certificateholders May Not Bring Suit Except
Under Certain Conditions. A Certificateholder shall not have the right to
institute any suit, action or proceeding at law or in equity or otherwise with
respect to this Agreement, for the appointment of a receiver or for the
enforcement of any other remedy under this Agreement, unless:
(1) such Certificateholder previously shall have given
written notice to the Trustee of a continuing Event of Default;
(2) Certificateholders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than 25% of the
Trust shall have requested the Trustee in writing to institute such
action, suit or proceeding and shall have offered to the Trustee
indemnity as provided in Section 7.03(e);
(3) the Trustee shall have refused or neglected to
institute such an action, suit or proceeding for 60 days after receipt
of such notice, request and offer of indemnity; and
(4) no direction inconsistent with such written request
shall have been given to the Trustee during such 60-day period by
Certificateholders holding Certificates evidencing Fractional
Undivided Interests aggregating not less than a majority in interest
in the Trust.
It is understood and intended that no one or more of the
Certificateholders shall have any right in any manner whatsoever hereunder or
under the Certificates to (i) surrender, impair, waive, affect, disturb or
prejudice any property in the Trust Property or the lien of any Indenture on
any property subject thereto, or the rights of the Certificateholders or the
holders of the Equipment Notes, (ii) obtain or seek to obtain priority over or
preference with respect to any other such Certificateholder or (iii) enforce
any right under this Agreement, except in the manner herein provided and for
the equal, ratable and common benefit of all the Certificateholders subject to
the provisions of this Agreement.
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Section 6.08. Remedies Cumulative. Every remedy given
hereunder to the Trustee or to any of the Certificateholders shall not be
exclusive of any other remedy or remedies, and every such remedy shall be
cumulative and in addition to every other remedy given hereunder or now or
hereafter given by statute, law, equity or otherwise.
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities. (a)
Except during the continuance of an Event of Default, the Trustee undertakes to
perform such duties as are specifically set forth in this Agreement, and no
implied covenants or obligations shall be read into this Agreement against the
Trustee.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Agreement, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of its own affairs.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section; and
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Trustee,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts.
(d) Whether or not herein expressly so provided, every
provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
Section 7.02. Notice of Defaults. As promptly as
practicable after, and in any event within 90 days after, the occurrence of any
default (as such term is defined below) hereunder, the Trustee shall transmit
by mail to the Company, the Owner Trustees, the Owner Participants, the Loan
Trustees and the
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Certificateholders in accordance with Section 313(c) of the Trust Indenture
Act, notice of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of
a default on the payment of the principal, premium, if any, or interest on any
Equipment Note held in the Trust, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee
or a trust committee of directors and/or Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interests of
the Certificateholders. For the purpose of this Section, the term "default"
means any event that is, or after notice or lapse of time or both would become,
an Event of Default.
Section 7.03. Certain Rights of Trustee. Subject to the
provisions of Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting in reliance upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a written description of the
subject matter thereof accompanied by an Officer's Certificate and an
Opinion of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officer's
Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
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(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement at the
Direction of any of the Certificateholders pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the cost, expenses and
liabilities which might be incurred by it in compliance with such
Direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document;
(g) the Trustee may execute any of the trusts or powers
under this Agreement or perform any duties under this Agreement either
directly or by or through agents or attorneys, and the Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the Direction of the Certificateholders holding Certificates
evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in the Trust relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Agreement; and
(i) the Trustee shall not be required to expend or risk
its own funds in the performance of any of its duties under this
Agreement, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk is not reasonably
assured to it.
Section 7.04. Not Responsible for Recitals or Issuance of
Certificates. The recitals contained herein and in the Certificates, except
the certificates of authentication, shall not be taken as the statements of the
Trustee, and the Trustee assumes no responsibility for their correctness.
Subject to Section 7.15, the Trustee makes no representations as to the
validity or sufficiency of this Agreement, any Equipment Notes,
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the Intercreditor Agreement, the Deposit Agreement, the Escrow Agreement, the
Certificates or any other Financing Document, except that the Trustee hereby
represents and warrants that this Agreement has been, and the Intercreditor
Agreement, the Registration Rights Agreement, the Note Purchase Agreement, the
Escrow Agreement and each Certificate will be, executed, authenticated and
delivered by one of its officers who is duly authorized to execute,
authenticate and deliver such document on its behalf.
Section 7.05. May Hold Certificates. The Trustee, any
Paying Agent, Registrar or any of their Affiliates or any other agent in their
respective individual or any other capacity may become the owner or pledgee of
Certificates and, subject to Sections 310(b) and 311 of the Trust Indenture
Act, if applicable, may otherwise deal with the Company, the Owner Trustees or
the Loan Trustees with the same rights it would have if it were not Trustee,
Paying Agent, Registrar or such other agent.
Section 7.06. Money Held in Trust. Money held by the
Trustee or the Paying Agent in trust hereunder need not be segregated from
other funds except to the extent required herein or by law and neither the
Trustee nor the Paying Agent shall have any liability for interest upon any
such moneys except as provided for herein.
Section 7.07. Compensation and Reimbursement. The Company
agrees:
(1) to pay, or cause to be paid, to the Trustee from time
to time reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse, or cause to be reimbursed, the Trustee upon its request for
all reasonable out-of-pocket expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of
this Agreement (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence,
willful misconduct or bad faith or as may be
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incurred due to the Trustee's breach of its representations and
warranties set forth in Section 7.15; and
(3) to indemnify, or cause to be indemnified, the Trustee
for, and to hold it harmless against, any loss, liability or expense
(other than for or with respect to any tax) incurred without
negligence, willful misconduct or bad faith, on its part, arising out
of or in connection with the acceptance or administration of this
Trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder, except for any such loss,
liability or expense incurred by reason of the Trustee's breach of its
representations and warranties set forth in Section 7.15; provided,
however, that the foregoing paragraph (3) shall cease to have any
further force or effect upon the execution and delivery by the Trustee
of any Participation Agreement.
With respect to paragraph (3) above, the Trustee shall notify
the Company promptly of any claim for which it may seek indemnity. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel with the consent of the Company and the
Company will pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made, in settlement or otherwise, without its
consent.
The Trustee shall be entitled to reimbursement from, and shall
have a lien prior to the Certificates upon, the Trust Property for any tax
incurred without negligence, bad faith or willful misconduct, on its part,
arising out of or in connection with the acceptance or administration of such
Trust (other than any tax attributable to the Trustee's compensation for
serving as such), including any costs and expenses incurred in contesting the
imposition of any such tax. If the Trustee reimburses itself from the Trust
Property of such Trust for any such tax, it will mail a brief report within 30
days setting forth the circumstances thereof to all Certificateholders as their
names and addresses appear in the Register.
Section 7.08. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be eligible to act
as a trustee under Section 310(a) of the Trust Indenture Act and shall have a
combined capital and surplus of at
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least $75,000,000 (or a combined capital and surplus in excess of $5,000,000
and the obligations of which, whether now in existence or hereafter incurred,
are fully and unconditionally guaranteed by a corporation organized and doing
business under the laws of the United States, any state or territory thereof or
of the District of Columbia and having a combined capital and surplus of at
least $75,000,000). If such corporation publishes reports of conditions at
least annually, pursuant to law or to the requirements of federal, state,
territorial or District of Columbia supervising or examining authority, then
for the purposes of this Section 7.08, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of conditions so published.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.08 to act as Trustee, the
Trustee shall resign immediately as Trustee in the manner and with the effect
specified in Section 7.09.
Section 7.09. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 7.10.
(b) The Trustee may resign at any time as trustee by
giving prior written notice thereof to the Company, the Authorized Agents, the
Owner Trustees and the Loan Trustees. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Company, the Authorized
Agents, the Owner Trustees, the Loan Trustees and the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Direction
of the Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust
delivered to the Trustee and to the Company, the Owner Trustees and the Loan
Trustees.
(d) If at any time:
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(1) the Trustee shall fail to comply with Section 310 of
the Trust Indenture Act, if applicable, after written request therefor
by the Company or by any Certificateholder who has been a bona fide
Certificateholder for at least six months; or
(2) the Trustee shall cease to be eligible under Section
7.08 and shall fail to resign after written request therefor by the
Company or by any such Certificateholder; or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any case, (i) the Company may, with the consent of the Owner
Participants, which consent may not be unreasonably withheld, remove the
Trustee or (ii) any Certificateholder who has been a bona fide
Certificateholder for at least six months may, on behalf of itself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If a Responsible Officer of the Trustee shall obtain
actual knowledge of an Avoidable Tax which has been or is likely to be
asserted, the Trustee shall promptly notify the Company and shall, within 30
days of such notification, resign hereunder unless within such 30-day period
the Trustee shall have received notice that the Company has agreed to pay such
tax. The Company shall promptly appoint a successor Trustee in a jurisdiction
where there are no Avoidable Taxes.
(f) If the Trustee shall resign, be removed or become
incapable of acting or if a vacancy shall occur in the office of the Trustee
for any cause, the Company shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or other
occurrence of such vacancy, a successor Trustee shall be appointed by Direction
of the Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust
delivered to the Company, the Owner Trustees, the Loan Trustees and the
retiring Trustee, and the Company approves such appointment, which approval
shall not be
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unreasonably withheld, then the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee and
supersede the successor Trustee appointed as provided above. If no successor
Trustee shall have been so appointed as provided above and accepted appointment
in the manner hereinafter provided, any Certificateholder who has been a bona
fide Certificateholder for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(g) The successor Trustee shall give notice of the
resignation and removal of the Trustee and appointment of the successor Trustee
by mailing written notice of such event by first-class mail, postage prepaid,
to the Certificateholders as their names and addresses appear in the Register.
Each notice shall include the name of such successor Trustee and the address of
its Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute and deliver to the
Company, the Authorized Agents, the Owner Trustees and the Loan Trustees and to
the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on request of the Company or the successor Trustee, such retiring
Trustee shall execute and deliver an instrument transferring to such successor
Trustee all such rights, powers and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor Trustee all Trust Property
held by such retiring Trustee hereunder, subject nevertheless to its lien, if
any, provided for in Section 7.07. Upon request of any such successor Trustee,
the Company, the retiring Trustee and such successor Trustee shall execute and
deliver any and all instruments containing such provisions as shall be
necessary or desirable to transfer and confirm to, and for more fully and
certainly vesting in, such successor Trustee all such rights, powers and
trusts.
No institution shall accept its appointment as a Trustee
hereunder unless at the time of such acceptance such institution shall be
qualified and eligible under this Article VII.
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Section 7.11. Merger, Conversion, Consolidation or
Succession to Business. Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article VII, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Certificates
shall have been executed or authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such execution or authentication and deliver
the Certificates so executed or authenticated with the same effect as if such
successor Trustee had itself executed or authenticated such Certificates.
Section 7.12. Maintenance of Agencies. (a) There shall at
all times be maintained an office or agency in the location set forth in
Section 12.03 where Certificates may be presented or surrendered for
registration of transfer or for exchange, and for payment thereof and where
notices and demands to or upon the Trustee in respect of such certificates or
this Agreement may be served; provided, however, that, if it shall be necessary
that the Trustee maintain an office or agency in another location (e.g., the
Certificates shall be represented by Definitive Certificates and shall be
listed on a national securities exchange), the Trustee will make all reasonable
efforts to establish such an office or agency. Written notice of the location
of each such other office or agency and of any change of location thereof shall
be given by the Trustee to the Company, the Owner Trustees, the Loan Trustees
(in the case of any Owner Trustee or Loan Trustee, at its address specified in
the Financing Documents or such other address as may be notified to the
Trustee) and the Certificateholders. In the event that no such office or
agency shall be maintained or no such notice of location or of change of
location shall be given, presentations and demands may be made and notices may
be served at the Corporate Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a Paying
Agent hereunder with respect to the Certificates. Each such Authorized Agent
shall be a bank or trust company, shall be
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a corporation organized and doing business under the laws of the United States
or any state, with a combined capital and surplus of at least $75,000,000, or,
if the Trustee shall be acting as the Registrar or Paying Agent hereunder, a
corporation having a combined capital and surplus in excess of $5,000,000, the
obligations of which are guaranteed by a corporation organized and doing
business under the laws of the United States or any state, with a combined
capital and surplus of at least $75,000,000, and shall be authorized under such
laws to exercise corporate trust powers, subject to supervision by Federal or
state authorities. The Trustee shall initially be the Paying Agent and, as
provided in Section 3.04, Registrar hereunder with respect to the Certificates.
Each Registrar shall furnish to the Trustee, at stated intervals of not more
than six months, and at such other times as the Trustee may request in writing,
a copy of the Register maintained by such Registrar.
(c) Any corporation into which any Authorized Agent may
be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any Authorized
Agent shall be a party, or any corporation succeeding to the corporate trust
business of any Authorized Agent, shall be the successor of such Authorized
Agent hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the parties hereto or such Authorized Agent or such successor
corporation.
(d) Any Authorized Agent may at any time resign by giving
written notice of resignation to the Trustee, the Company, the Owner Trustees
and the Loan Trustees. The Company may, and at the request of the Trustee
shall, at any time terminate the agency of any Authorized Agent by giving
written notice of termination to such Authorized Agent and to the Trustee.
Upon the resignation or termination of an Authorized Agent or in case at any
time any such Authorized Agent shall cease to be eligible under this Section
(when, in either case, no other Authorized Agent performing the functions of
such Authorized Agent shall have been appointed), the Company shall promptly
appoint one or more qualified successor Authorized Agents, reasonably
satisfactory to the Trustee, to perform the functions of the Authorized Agent
which has resigned or whose agency has been terminated or who shall have ceased
to be eligible under this Section. The Company shall give written notice of
any such appointment made by it to the Trustee, the Owner Trustees and the
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Loan Trustees; and in each case the Trustee shall mail notice of such
appointment to all Certificateholders as their names and addresses appear on
the Register.
(e) The Company agrees to pay, or cause to be paid, from
time to time to each Authorized Agent reasonable compensation for its services
and to reimburse it for its reasonable expenses.
Section 7.13. Money for Certificate Payments to Be Held in
Trust. All moneys deposited with any Paying Agent for the purpose of any
payment on Certificates shall be deposited and held in trust for the benefit of
the Certificateholders entitled to such payment, subject to the provisions of
this Section. Moneys so deposited and held in trust shall constitute a
separate trust fund for the benefit of the Certificateholders with respect to
which such money was deposited.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Agreement or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Section 7.14. Registration of Equipment Notes in Name of
Subordination Agent. The Trustee agrees that all Equipment Notes to be
purchased by the Trust shall be issued in the name of the Subordination Agent
or its nominee and held by the Subordination Agent in trust for the benefit of
the Certificateholders, or, if not so held, the Subordination Agent or its
nominee shall be reflected as the owner of such Equipment Notes in the register
of the issuer of such Equipment Notes.
Section 7.15. Representations and Warranties of Trustee.
The Trustee hereby represents and warrants that:
(a) the Trustee is a Delaware banking corporation
organized and validly existing in good standing under the laws of the State of
Delaware;
(b) the Trustee has full power, authority and legal right
to execute, deliver, and perform this Agreement, the Intercreditor Agreement,
the Registration Rights Agreement, the
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Escrow Agreement, the Note Purchase Agreement and the Financing Documents to
which it is a party and has taken all necessary action to authorize the
execution, delivery, and performance by it of this Agreement, the Intercreditor
Agreement, the Registration Rights Agreement, the Escrow Agreement, the Note
Purchase Agreement and the Financing Documents to which it is a party;
(c) the execution, delivery and performance by the
Trustee of this Agreement, the Intercreditor Agreement, the Registration Rights
Agreement, the Escrow Agreement, the Note Purchase Agreement and the Financing
Documents to which it is a party (i) will not violate any provision of 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, or (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;
(d) the execution, delivery and performance by the
Trustee of this Agreement, the Intercreditor Agreement, the Registration Rights
Agreement, the Escrow Agreement, the Note Purchase Agreement, and the Financing
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
(e) this Agreement, the Intercreditor Agreement, the
Registration Rights Agreement, the Escrow Agreement, the Note Purchase
Agreement, and the Financing Documents to which it is a party have been duly
executed and delivered by the Trustee and constitute the legal, valid, and
binding agreements of the
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Trustee, enforceable against it in accordance with their respective terms,
provided 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 7.16. Withholding Taxes, Information Reporting.
The Trustee, as trustee of the grantor trust created by this Agreement, shall
exclude and withhold from each distribution of principal, premium, if any, and
interest and other amounts due under this Agreement or under the Certificates
any and all withholding taxes applicable thereto as required by law. In
addition, the Trustee shall remit such amounts as would be required by section
1446 of the Internal Revenue Code of 1986, as amended, if the Trust were
characterized as a partnership engaged in a U.S. trade or business for U.S.
federal income tax purposes and shall withhold such amounts from amounts
distributable to or for the benefit of Certificateholders or Investors that are
not United States persons within the meaning of section 7701(a)(30) of the
Internal Revenue Code of 1986, as amended. In this regard, the Trustee shall
cause the appropriate withholding agent to withhold with respect to such
distributions in the manner contemplated by Section 10.04 of Revenue Procedure
89-31 and Treasury Regulation 1.1445-8(b)(3)) by filing a notice with the
National Association of Securities Dealers, Inc. substantially in the form of
Exhibit E hereto on or before the date 10 days prior to the Record Date. The
Trustee shall mail such notice to the National Association of Securities
Dealers no later than the date than 15 days prior to the Record Date.
Investors that are not United States Persons agree to furnish a United States
taxpayer identification number ("TIN") to the Trustee and the Trustee shall
provide such TINs to the appropriate withholding agent. The Trustee agrees to
act as such withholding agent (except to the extent contemplated above with
respect to withholding amounts as if the Trust were characterized as a
partnership engaged in a U.S. trade or business for U.S. federal income tax
purposes) and, in connection therewith, whenever any present or future taxes or
similar charges are required to be withheld with respect to any amounts payable
in respect of the Certificates, to withhold such amounts and timely pay the
same to the appropriate authority in the name of and on behalf of the
Certificateholders, that it will file any necessary withholding tax returns or
statements when due, and that, as promptly as possible after the payment
thereof, it will deliver to each such Certificateholder appropriate
documentation showing
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the payment thereof, together with such additional documentary evidence as such
Certificateholders may reasonably request from time to time. The Trustee
agrees to file any other information reports as it may be required to file
under United States law. Each Certificateholder or Investor that is not a
United States person within the meaning of section 7701(a)(30) of the Internal
Revenue Code, as amended, by its acceptance of a Certificate or a beneficial
interest therein, agrees to indemnify and hold harmless the Trust and the
Trustee from and against any improper failure to withhold taxes from amounts
payable to it or for its benefit, other than an improper failure attributable
to the gross negligence or willful misconduct of the Trustee.
Section 7.17. Trustee's Liens. The Trustee in its
individual capacity agrees 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
mortgage, pledge, lien, charge, encumbrance, security interest or claim
("Trustee's Liens") on or with respect to the Trust Property which is
attributable to the Trustee either (i) in its individual capacity and which is
unrelated to the transactions contemplated by this Agreement, the Intercreditor
Agreement, the Note Purchase Agreement or the Financing Documents, or (ii) as
Trustee hereunder or in its individual capacity and which arises out of acts or
omissions which are not contemplated by this Agreement.
Section 7.18. Preferential Collection of Claims. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship listed in Section 311(b) of the Trust Indenture Act.
If the Trustee shall resign or be removed as Trustee, it shall be subject to
Section 311(a) of the Trust Indenture Act to the extent provided therein.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and
Addresses of Certificateholders. The Company will furnish to the Trustee
within 15 days after each Record Date with respect to a Scheduled Payment, and
at such other times as the Trustee may request in writing within 30 days after
receipt by the Company of any such request, a list, in such form as the Trustee
may reasonably require, of all information in the possession or control of the
Company as to the names and
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addresses of the Certificateholders, in each case as of a date not more than 15
days prior to the time such list is furnished; provided, however, that so long
as the Trustee is the sole Registrar, no such list need be furnished; and
provided further, however, that no such list need be furnished for so long as a
copy of the Register is being furnished to the Trustee pursuant to Section
7.12.
Section 8.02. Preservation of Information; Communications
to Certificateholders. The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Certificateholders contained
in the most recent list furnished to the Trustee as provided in Section 7.12 or
Section 8.01, as the case may be, and the names and addresses of
Certificateholders received by the Trustee in its capacity as Registrar, if so
acting. The Trustee may destroy any list furnished to it as provided in
Section 7.12 or Section 8.01, as the case may be, upon receipt of a new list so
furnished.
Section 8.03. Reports by Trustee. Within 60 days after May
15 of each year commencing with the first full year following the issuance of
the Certificates, the Trustee shall transmit to the Certificateholders, as
provided in Section 313(c) of the Trust Indenture Act, a brief report dated as
of such May 15, if required by Section 313(a) of the Trust Indenture Act.
Section 8.04. Reports by the Company. The Company shall:
(a) file with the Trustee, within 30 days after the
Company is required to file the same with the SEC, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may from
time to time by rules and regulations prescribe) which the Company is
required to file with the SEC pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934, as amended; or, if the Company
is not required to file information, documents or reports pursuant to
either of such sections, then to file with the Trustee and the SEC, in
accordance with rules and regulations prescribed by the SEC, such of
the supplementary and periodic information, documents and reports
which may be required pursuant to section 13 of the Securities
Exchange Act of 1934, as amended, in respect of a security listed and
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registered on a national securities exchange as may be prescribed in
such rules and regulations;
(b) during any period, prior to the consummation of the
Exchange Offer and during which the Shelf Registration Statement is
not in effect, in which the Company is not subject to Section 13(a),
13(c) or 15(d) under the Securities Exchange Act of 1934, make
available to any Holder of the Certificates in connection with any
sale thereof and any prospective purchaser of the Certificates from
such Holder, in each case upon request, the information specified in,
and meeting the requirements of, Rule 144A(d)(4) under the Securities
Act but only for so long as any of the Certificates remain outstanding
and are "restricted securities" within the meaning of Rule 144(a)(3)
under the Securities Act and, in any event, only until the second
anniversary of the Issuance Date;
(c) file with the Trustee and the SEC, in accordance with
the rules and regulations prescribed by the SEC, such additional
information, documents and reports with respect to compliance by the
Company with the conditions and covenants provided for in this
Agreement, as may be required by such rules and regulations,
including, in the case of annual reports, if required by such rules
and regulations, certificates or opinions of independent public
accountants, conforming to the requirements of Section 1.02;
(d) transmit to all Certificateholders, in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act
such summaries of any information, documents and reports required to
be filed by the Company pursuant to subsections (a) and (c) of this
Section 8.04 as may be required by rules and regulations prescribed by
the SEC; and
(e) furnish to the Trustee, not less often than annually,
a brief certificate from the principal executive officer, principal
financial officer or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and
covenants under this Agreement (it being understood that for purposes
of this paragraph (e), such compliance shall be determined without
regard to any period of grace or requirement of notice provided under
this Agreement).
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ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of
Certificateholders. Without the consent of the Certificateholders, the Company
may (but will not be required to), and the Trustee (subject to Section 9.03)
shall, at the Company's request, at any time and from time to time, enter into
one or more agreements supplemental hereto or, if applicable, to the
Intercreditor Agreement, the Escrow Agreement, the Note Purchase Agreement, the
Deposit Agreement, the Registration Rights Agreement or any Liquidity Facility
in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to
the Company and the assumption by any such successor of the covenants
of the Company herein contained or of the Company's obligations under
the Note Purchase Agreement, the Registration Rights Agreement or any
Liquidity Facility; or
(2) to add to the covenants of the Company for the
benefit of the Certificateholders, or to surrender any right or power
conferred upon the Company in this Agreement, the Note Purchase
Agreement, the Registration Rights Agreement or any Liquidity
Facility; or
(3) to correct or supplement any provision in this
Agreement, the Intercreditor Agreement, the Escrow Agreement, the
Deposit Agreement, the Note Purchase Agreement, the Registration
Rights Agreement or any Liquidity Facility which may be defective or
inconsistent with any other provision herein or therein or to cure any
ambiguity or correct any mistake or to modify any other provision with
respect to matters or questions arising under this Agreement, the
Escrow Agreement, the Deposit Agreement, the Note Purchase Agreement,
the Intercreditor Agreement, the Registration Rights Agreement or any
Liquidity Facility, provided that any such action shall not materially
adversely affect the interests of the Certificateholders; or
(4) to comply with any requirement of the SEC, any
applicable law, rules or regulations of any exchange or quotation
system on which the Certificates are listed, any regulatory body or
the Registration Rights Agreement to effectuate the Exchange Offer; or
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(5) to modify, eliminate or add to the provisions of this
Agreement to such extent as shall be necessary to continue the
qualification of this Agreement (including any supplemental agreement)
under the Trust Indenture Act or under any similar Federal statute
hereafter enacted, and to add to this Agreement such other provisions
as may be expressly permitted by the Trust Indenture Act, excluding,
however, the provisions referred to in Section 316(a)(2) of the Trust
Indenture Act as in effect at the date as of which this instrument was
executed or any corresponding provision in any similar Federal statute
hereafter enacted; or
(6) to evidence and provide for the acceptance of
appointment under this Agreement by the Trustee of a successor Trustee
and to add to or change any of the provisions of this Agreement as
shall be necessary to provide for or facilitate the administration of
the Trust, pursuant to the requirements of Section 7.10; or
(7) to provide the information required under Section
7.12 and Section 12.03 as to the Trustee; or
(8) to modify or eliminate provisions relating to the
transfer or exchange of Exchange Certificates or the Initial
Certificates upon consummation of the Exchange Offer (as defined in
the Registration Rights Agreement) or effectiveness of the Shelf
Registration Statement or the Exchange Offer Registration Statement;
provided, however, that no such supplemental agreement shall adversely affect
the status of any Trust as a grantor trust under Subpart E, Part I of
Subchapter J of Chapter 1 of Subtitle A of the Internal Revenue Code of 1986,
as amended, for U.S. federal income tax purposes.
Section 9.02. Supplemental Agreements with Consent of
Certificateholders. With the consent of the Certificateholders holding
Certificates (including consents obtained in connection with a tender offer or
exchange offer for the Certificates) evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in the Trust, by Direction of
said Certificateholders delivered to the Company and the Trustee, the Company
may (with the consent of the Owner Trustees, if any, which consent shall not be
unreasonably withheld), and the Trustee (subject to Section 9.03) shall, enter
into an agreement
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or agreements for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement, the
Intercreditor Agreement, any Liquidity Facility, the Registration Rights
Agreement, the Escrow Agreement, the Deposit Agreement or the Note Purchase
Agreement to the extent applicable to such Certificateholders or of modifying
in any manner the rights and obligations of such Certificateholders under this
Agreement, the Intercreditor Agreement, any Liquidity Facility, the
Registration Rights Agreement, the Escrow Agreement, the Deposit Agreement or
the Note Purchase Agreement; provided, however, that no such agreement shall,
without the consent of the Certificateholder of each Outstanding Certificate
affected thereby:
(1) reduce in any manner the amount of, or delay the
timing of, any receipt by the Trustee (or, with respect to the
Deposits, the Certificateholders) of payments on the Equipment Notes
held in the Trust or on the Deposits or distributions that are
required to be made herein on any Certificate, or change any date of
payment on any Certificate, or change the place of payment where, or
the coin or currency in which, any Certificate is payable, or impair
the right to institute suit for the enforcement of any such payment or
distribution on or after the Regular Distribution Date or Special
Distribution Date applicable thereto; or
(2) permit the disposition of any Equipment Note included
in the Trust Property except as permitted by this Agreement, or
otherwise deprive such Certificateholder of the benefit of the
ownership of the Equipment Notes in the Trust; or
(3) reduce the specified percentage of the aggregate
Fractional Undivided Interests of the Trust which is required for any
such supplemental agreement, or reduce such specified percentage
required for any waiver of compliance with certain provisions of this
Agreement or certain defaults hereunder and their consequences
provided for in this Agreement; or
(4) waive, amend or modify Section 2.4, 3.2 or 3.3 of the
Intercreditor Agreement in a manner adverse to the Certificateholders;
or
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(5) modify any of the provisions of this Section 9.02 or
Section 6.05, except to increase any such percentage or to provide
that certain other provisions of this Agreement cannot be modified or
waived without the consent of the Certificateholder of each
Certificate affected thereby; or
(6) adversely affect the status of any Trust as a grantor
trust under Subpart E, Part I of Subchapter J of Chapter 1 of Subtitle
A of the Internal Revenue Code of 1986, as amended, for U.S. federal
income tax purposes.
It shall not be necessary for any Direction of
Certificateholders under this Section to approve the particular form of any
proposed supplemental agreement, but it shall be sufficient if such Direction
shall approve the substance thereof.
Section 9.03. Documents Affecting Immunity or Indemnity.
If in the opinion of the Trustee any document required to be executed by it
pursuant to the terms of Section 9.01 or 9.02 affects any interest, right,
duty, immunity or indemnity in favor of the Trustee under this Agreement, the
Trustee may in its discretion decline to execute such document.
Section 9.04. Execution of Supplemental Agreements. In
executing, or accepting the additional trusts created by, any agreement
permitted by this Article or the modifications thereby of the trusts created by
this Agreement, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental agreement is authorized or permitted by this Agreement.
Section 9.05. Effect of Supplemental Agreements. Upon the
execution of any agreement supplemental to this Agreement under this Article,
this Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every
Holder of a Certificate theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 9.06. Conformity with Trust Indenture Act. Every
supplemental agreement executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
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Section 9.07. Reference in Certificates to Supplemental
Agreements. Certificates authenticated and delivered after the execution of
any supplemental agreement pursuant to this Article may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
agreement; and, in such case, suitable notation may be made upon Outstanding
Certificates after proper presentation and demand.
ARTICLE X
AMENDMENTS TO INDENTURES AND FINANCING DOCUMENTS
Section 10.01. Amendments and Supplements to Indentures and
Financing Documents. In the event that the Trustee, as holder (or beneficial
owner through the Subordination Agent) of any Equipment Note in trust for the
benefit of the Certificateholders or as Controlling Party under the
Intercreditor Agreement, receives (directly or indirectly through the
Subordination Agent) a request for a consent to any amendment, modification,
waiver or supplement under any Indenture, any other Financing Document, any
Equipment Note or any other related document, the Trustee shall forthwith send
a notice of such proposed amendment, modification, waiver or supplement to each
Certificateholder registered on the Register as of the date of such notice.
The Trustee shall request from the Certificateholders a Direction as to (a)
whether or not to take or refrain from taking (or direct the Subordination
Agent to take or refrain from taking) any action which a holder of such
Equipment Note has the option to direct, (b) whether or not to give or execute
(or direct the Subordination Agent to give or execute) any waivers, consents,
amendments, modifications or supplements as a holder of such Equipment Note or
a Controlling Party and (c) how to vote (or direct the Subordination Agent to
vote) any Equipment Note if a vote has been called for with respect thereto.
Provided such a request for Certificateholder Direction shall have been made,
in directing any action or casting any vote or giving any consent as the holder
of any Equipment Note (or in directing the Subordination Agent in any of the
foregoing), (i) other than as Controlling Party, the Trustee shall vote for or
give consent to any such action with respect to such Equipment Note in the same
proportion as that of (A) the aggregate face amounts of all Certificates
actually voted in favor of or for giving consent to such action by such
Direction of Certificateholders to (B) the aggregate face amount of all
Outstanding Certificates and (ii) as Controlling Party, the
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Trustee shall vote as directed in such Certificateholder Direction by the
Certificateholders evidencing a Fractional Undivided Interest aggregating not
less than a majority in interest in the Trust. For purposes of the immediately
preceding sentence, a Certificate shall have been "actually voted" if the
Holder of such Certificate has delivered to the Trustee an instrument
evidencing such Holder's consent to such Direction prior to two Business Days
before the Trustee directs such action or casts such vote or gives such
consent. Notwithstanding the foregoing, but subject to Section 6.04 and the
Intercreditor Agreement, the Trustee may, in its own discretion and at its own
direction, consent and notify the relevant Loan Trustee of such consent (or
direct the Subordination Agent to consent and notify the Loan Trustee of such
consent) to any amendment, modification, waiver or supplement under the
relevant Indenture, any other Financing Document, any Equipment Note or any
other related document, if an Event of Default hereunder shall have occurred
and be continuing, or if such amendment, modification, waiver or supplement
will not materially adversely affect the interests of the Certificateholders.
ARTICLE XI
TERMINATION OF TRUST
Section 11.01. Termination of the Trust. The respective
obligations and responsibilities of the Company and the Trustee with respect to
the Trust shall terminate upon the earlier of (A) the completion of the
assignment, transfer and discharge described in the first sentence of the
immediately following paragraph and (B) distribution to all Holders of
Certificates and the Trustee of all amounts required to be distributed to them
pursuant to this Agreement and the disposition of all property held as part of
the Trust Property; provided, however, that in no event shall the Trust
continue beyond one hundred ten (110) years following the date of the earliest
execution of this Trust Agreement.
Upon the earlier of (i) the first Business Day following March
31, 1998, or, if later, the fifth Business Day following the Delivery Period
Termination Date and (ii) the fifth Business Day following the date on which a
Triggering Event occurs (such date, the "Transfer Date"), or, if later, the
date on which all of the conditions set forth in the immediately following
sentence have been satisfied, the Trustee is hereby
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directed (subject only to the immediately following sentence) to, and the
Company shall direct the institution that will serve as the Related Trustee
under the Related Pass Through Trust Agreement to, execute and deliver the
Assignment and Assumption Agreement, pursuant to which the Trustee shall
assign, transfer and deliver all of the Trustee's right, title and interest to
the Trust Property to the Related Trustee under the Related Pass Through Trust
Agreement. The Trustee and the Related Trustee shall execute and deliver the
Assignment and Assumption Agreement upon the satisfaction of the following
conditions:
(i) The Trustee, the Related Trustee and each of the
Rating Agencies then rating the Certificates shall have
received an Officer's Certificate and an Opinion of Counsel
dated the date of the Assignment and Assumption Agreement and
each satisfying the requirements of Section 1.02, which
Opinion of Counsel shall be substantially to the effect set
forth below and may be relied upon by the Beneficiaries (as
defined in the Assignment and Assumption Agreement):
(a) upon the execution and delivery thereof by the
parties thereto in accordance with the terms of this
Agreement and the Related Pass Through Trust
Agreement, the Assignment and Assumption Agreement
will constitute the valid and binding obligation of
each of the parties thereto enforceable against each
such party in accordance with its terms;
(b) upon the execution and delivery of the Assignment an
Assumption Agreement in accordance with the terms of
this Agreement and the Related Pass Through Trust
Agreement, each of the Certificates then Outstanding
is entitled to the benefits of the Related Pass
Through Trust Agreement;
(c) the Related Trust is not required to be registered as
an investment company under the Investment Company
Act of 1940, as amended;
(d) the Related Pass Through Trust Agreement constitutes
the valid and binding obligation of the Company
enforceable against the Company in accordance with
its terms; and
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(e) neither the execution and delivery of the Assignment
and Assumption Agreement in accordance with the terms
of this Agreement and the Related Pass Through Trust
Agreement, nor the consummation by the Parties
thereto of the transactions contemplated to be
consummated thereunder on the date thereof, violate
any law or governmental rule or regulation of the
State of New York or the United States of America
known to such counsel to be applicable to the
transactions contemplated by the Assignment and
Assumption Agreement.
(ii) The Trustee and the Company shall have received
(x) a copy of the articles of incorporation and bylaws of the
Related Trustee certified as of the Transfer Date by the
Secretary or Assistant Secretary of such institution and (y) a
copy of the filing (including all attachments thereto) made by
the institution serving as the Related Trustee with the Office
of the Superintendent, State of New York Banking Department
for the qualification of the Related Trustee under section
131(3) of the New York Banking Law.
Upon the execution of the Assignment and Assumption Agreement by the parties
thereto, the Trust shall be terminated, the Certificateholders shall receive
beneficial interests in the Related Trust in exchange for their interests in
the Trust equal to their respective beneficial interests in the Trust, and the
Outstanding Certificates representing Fractional Undivided Interests in the
Trust shall be deemed for all purposes of this Agreement and the Related Pass
Through Trust Agreement, without further signature or action of any party or
Certificateholder, to be certificates representing the same fractional
undivided interests in the Related Trust and its trust property. By acceptance
of its Certificate, each Certificateholder consents to such assignment,
transfer and delivery of the Trust Property to the trustee of the Related Trust
upon the execution and delivery of the Assignment and Assumption Agreement.
In connection with the occurrence of the event set forth in
clause (B) above, notice of such termination, specifying the Distribution Date
upon which the Certificateholders may surrender their Certificates to the
Trustee for payment of the final distribution and cancellation, shall be mailed
promptly by the Trustee to Certificateholders not earlier than the 60th day
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and not later than the 20th day next preceding such final Distribution Date
specifying (A) the Distribution Date upon which the proposed final payment of
the Certificates will be made upon presentation and surrender of 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 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 Certificateholders. Upon presentation and
surrender of the Certificates in accordance with such notice, the Trustee shall
cause to be distributed to Certificateholders such final payments.
In the event that all of the Certificateholders shall not
surrender their 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 Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. No additional interest shall accrue on the 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 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 related Owner Trustees, the Owner Participants
and the Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to terminate
this Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights,
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obligations, and liabilities of the parties hereto or any of them.
Section 12.02. Certificates Nonassessable and Fully Paid.
Except as set forth in the last sentence of this Section 12.02,
Certificateholders shall not be personally liable for obligations of the Trust,
the Fractional Undivided Interests represented by the Certificates shall be
nonassessable for any losses or expenses of the Trust or for any reason
whatsoever, and Certificates, upon authentication thereof by the Trustee
pursuant to Section 3.03, are and shall be deemed fully paid. No
Certificateholder shall have any right (except as expressly provided herein) to
vote or in any manner otherwise control the operation and management of the
Trust Property, the Trust, or the obligations of the parties hereto, nor shall
anything set forth herein, or contained in the terms of the Certificates, be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association. Neither the existence of the Trust nor
any provision herein is intended to or shall limit the liability the
Certificateholders would otherwise incur if the Certificateholders owned Trust
Property as co-owners, or incurred any obligations of the Trust, directly
rather than through the Trust.
Section 12.03. Notices. (a) Unless otherwise specifically
provided herein, all notices required under the terms and provisions of this
Agreement shall be in English and in writing, and any such notice may be given
by United States mail, courier service or telecopy, and any such notice shall
be effective when delivered or received or, if mailed, three days after deposit
in the United States mail with proper postage for ordinary mail prepaid,
if to the Company, to:
Continental Airlines, Inc. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention:
Chief Financial Officer and General
Counsel Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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if to the Trustee, to:
Wilmington Trust Company ▇▇▇▇▇▇ Square
North ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Attention:
Corporate Trust Department Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (302)
651-8584
(b) The Company or the Trustee, by notice to the other,
may designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Certificateholders
shall be mailed by first-class mail to the addresses for Certificateholders
shown on the Register kept by the Registrar. Failure so to mail a notice or
communication or any defect in such notice or communication shall not affect
its sufficiency with respect to other Certificateholders.
(d) If a notice or communication is mailed in the manner
provided above within the time prescribed, it is conclusively presumed to have
been duly given, whether or not the addressee receives it.
(e) If the Company mails a notice or communication to the
Certificateholders, it shall mail a copy to the Trustee and to the Paying Agent
at the same time.
(f) Notwithstanding the foregoing, all communications or
notices to the Trustee shall be deemed to be given only when received by a
Responsible Officer of the Trustee.
(g) The Trustee shall promptly furnish the Company with a
copy of any demand, notice or written communication received by the Trustee
hereunder from any Certificateholder, Owner Trustee or Loan Trustee.
Section 12.04. Governing Law. THIS AGREEMENT HAS BEEN
DELIVERED IN THE STATE OF DELAWARE AND THIS AGREEMENT AND THE CERTIFICATES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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Section 12.05. Severability of Provisions. If any one or
more of the covenants, agreements, provisions or terms of this Agreement shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions, or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Agreement or the
Trust, or of the Certificates or the rights of the Certificateholders thereof.
Section 12.06. Trust Indenture Act Controls. Upon the
occurrence of any Registration Event, this Agreement shall become subject to
the provisions of the Trust Indenture Act and shall, to the extent applicable,
be governed by such provisions. From and after any Registration Event, if any
provision of this Agreement limits, qualifies or conflicts with another
provision which is required to be included in this Agreement by the Trust
Indenture Act, the required provision shall control.
Section 12.07. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 12.08. Successors and Assigns. All covenants,
agreements, representations and warranties in this Agreement by the Trustee and
the Company shall bind and, to the extent permitted hereby, shall inure to the
benefit of and be enforceable by their respective successors and assigns,
whether so expressed or not.
Section 12.09. Benefits of Agreement. Nothing in this
Agreement or in the Certificates, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the
Certificateholders, any benefit or any legal or equitable right, remedy or
claim under this Agreement.
Section 12.10. Legal Holidays. In any case where any
Regular Distribution Date or Special Distribution Date relating to any
Certificate shall not be a Business Day, then (notwithstanding any other
provision of this Agreement) payment need not be made on such date, but may be
made on the next succeeding 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.
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Section 12.11. Counterparts. For the purpose of
facilitating the execution of this Agreement and for other purposes, this
Agreement may be executed simultaneously in any number of counterparts, each of
which counterparts shall be deemed to be an original, and all of which
counterparts shall constitute but one and the same instrument.
Section 12.12. Intention of Parties. The parties hereto
intend that the 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 Certificateholder and Investor, by its
acceptance of its Certificate or a beneficial interest therein, agrees to treat
the Trust as a grantor trust for all U.S. federal, state and local income tax
purposes. The powers granted and obligations undertaken pursuant to this
Agreement shall be so construed so as to further such intent.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers thereunto 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:
90
EXHIBIT A
FORM OF CERTIFICATE
REGISTERED
No._______
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, ANY PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS CERTIFICATE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; (2) AGREES THAT
IT WILL NOT WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE
OF THIS CERTIFICATE OR THE LAST DATE ON WHICH THIS CERTIFICATE WAS
HELD BY CONTINENTAL AIRLINES, INC., THE TRUSTEE OR ANY AFFILIATE OF
ANY OF SUCH PERSONS RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE
EXCEPT (A) CONTINENTAL AIRLINES, INC., (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE) OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT; AND (3) AGREES THAT IF IT SHOULD
RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE IT WILL DELIVER TO EACH
PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
CERTIFICATE WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE
OF THIS CERTIFICATE OR THE LAST DATE ON WHICH THIS CERTIFICATE WAS
HELD BY CONTINENTAL AIRLINES, INC., THE TRUSTEE OR ANY AFFILIATE OF
ANY OF SUCH PERSONS, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER
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OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT. THE PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS.](1)
BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT (A) IT IS NOT A
PLAN TRANSFEREE (AS DEFINED IN THE PASS THROUGH TRUST AGREEMENT) OR
(B) IT IS AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
TO ACQUIRE THIS CERTIFICATE, AND THE CONDITIONS OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ISSUED BY THE U.S. DEPARTMENT OF
LABOR HAVE BEEN AND WILL CONTINUE TO BE SATISFIED IN CONNECTION WITH
ITS PURCHASE AND HOLDING OF THIS CERTIFICATE. THE PASS THROUGH TRUST
AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE
FOREGOING RESTRICTIONS. [UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN EXCHANGE
FOR THIS CERTIFICATE 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 HEREON 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 AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTIONS 3.05 AND 3.06 OF THE PASS THROUGH
TRUST AGREEMENT REFERRED TO HEREIN.](2)
__________________________________
(1) Not to be included on the face of the Regulation S Global Certificate.
(2) To be included on the face of each Global Certificate.
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[GLOBAL CERTIFICATE](3)
CONTINENTAL AIRLINES PASS THROUGH TRUST, SERIES 1997-1B-O
7.461% Continental Airlines [Initial] [Exchange]
Pass Through Certificate,
Series 1
997-1B-O
Final Maturity Date: October 1, 2014
evidencing a fractional undivided interest in a trust, the property of which
includes certain equipment notes each secured by an Aircraft leased to or owned
by Continental Airlines, Inc.
$__________ Fractional Undivided Interest representing
.______% 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, Series 1997-1B-O (the
"Trust") created pursuant to a Pass Through Trust Agreement, dated as of March
21, 1997 (the "Agreement"), between Wilmington Trust Company (the "Trustee")
and Continental Airlines, Inc., a corporation incorporated under Delaware law
(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 "7.461%
Continental Airlines [Initial] [Exchange] Pass Through Certificates, Series
1997-1B-O" (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 Certificateholder of this Certificate
assents to and agrees to be bound by the provisions of the Agreement and the
Intercreditor Agreement. The property of the Trust includes an interest in
certain Equipment Notes and all rights of the Trust to receive payments under
the Intercreditor Agreement and any Liquidity Facility (the "Trust Property").
Each issue of the Equipment Notes is secured by, among other things, a security
interest in the Aircraft leased to or owned by the Company.
__________________________________
(3) To be included on the face of each Global Certificate.
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The Certificates represent fractional undivided interests in
the Trust and the Trust Property, and have no rights, benefits or interest in
respect of any assets or property other than the Trust Property.
Subject to and in accordance with the terms of the Agreement
and the Intercreditor Agreement, from and to the extent of funds then available
to the Trustee, there will be distributed on each April 1 and October 1 (a
"Regular Distribution Date"), commencing on October 1, 1997, 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 due on such Regular Distribution Date 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 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.
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 of their affiliates. The Certificates are limited in right or 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
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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,
proceeds, 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 therein set forth, 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, in the Borough of Manhattan, the City
of New York, 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.
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[The Holder of this Certificate is entitled to the benefits of
the Exchange and Registration Rights Agreement, dated as of March 21, 1997,
among the Company, the Trustee and the Initial Purchasers named therein (the
"Registration Rights Agreement"). In the event that no Registration Event has
occurred on or prior to the 210th day after the date of the issuance of the
Certificates, the interest rate per annum payable in respect of the Equipment
Notes and the Deposits shall be increased by 0.50%, from and including the
210th day after the Issuance Date to but excluding (i) the earlier of the date
on which a Registration Event occurs and (ii) the date on which there cease to
be any Registrable Certificates (as defined in the Registration Rights
Agreement). In the event that the Shelf Registration Statement ceases to be
effective at any time during the period specified by Section 2(b)(B) of the
Registration Rights Agreement for more than 60 days, whether or not
consecutive, during any 12-month period, the interest rate per annum payable in
respect of the Equipment Notes and the Deposits shall be increased by 0.50%
from the 61st day of the applicable 12-month period such Shelf Registration
Statement ceases to be effective until such time as the Shelf Registration
Statement again becomes effective ( or, if earlier, the end of the period
specified by Section 2(b)(B) of the Registration Rights Agreement).](4)
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.
Under certain circumstances set forth in Section 11.01 of the
Agreement, all of the Trustee's right, title and interest to the Trust Property
may be assigned, transferred and delivered to the Related Trustee of the
Related Trust pursuant to the Assignment and Assumption Agreement. Upon the
effectiveness of such Assignment and Assumption Agreement (the "Transfer"), the
Trust shall be terminated, the Certificateholders shall receive beneficial
interests in the Related Trust in exchange for their interests in the Trust
equal to their respective beneficial interests in the Trust, the Certificates
representing Fractional
__________________________________
(4) To be included only on each Initial Certificate.
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Undivided Interests in the Trust shall be deemed for all purposes of the
Agreement and the Related Pass Through Trust Agreement to be certificates
representing the same fractional undivided interests in the Related Trust and
its trust property. Each Certificateholder, by its acceptance of this
Certificate or a beneficial interest herein, agrees to be bound by the
Assignment and Assumption Agreement and subject to the terms of the Related
Pass Through Trust Agreement as a certificateholder thereunder. From and after
the Transfer, unless and to the extent the context otherwise requires,
references herein to the Trust, the Agreement and the Trustee shall constitute
references to the Related Trust, the Related Pass Through Trust Agreement and
trustee of the Related Trust, respectively.
The Certificates are issuable only as registered Certificates
without coupons in minimum denominations of [$100,000](5) [$1,000](6)
Fractional Undivided Interest and integral multiples of $1,000 in excess
thereof except that one Certificate may be in a different denomination. As
provided in the Agreement and subject to certain limitations therein set forth,
the Certificates are exchangeable 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 by the Holder of a
sum sufficient to cover any tax or governmental charge payable in connection
therewith.
Each Certificateholder or Investor that is not a United States
person within the meaning of section 7701(a)(30) of the Internal Revenue Code,
as amended, by its acceptance of a Certificate or a beneficial interest
therein, agrees to indemnify and hold harmless the Trust and the Trustee from
and against any improper failure to withhold taxes from amounts payable to it
or for its benefit. 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.
__________________________________
(5) To be included only on each Initial Certificate.
(6) To be included only on each Exchange Certificate
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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.
UNTIL THE TRANSFER, THE AGREEMENT AND THIS CERTIFICATE SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. FROM AND AFTER THE TRANSFER,
THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED 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.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: , 1997 CONTINENTAL AIRLINES
---------------- PASS THROUGH TRUST, SERIES
1997-1B-O
By: WILMINGTON TRUST COMPANY,
not in its individual
capacity but solely as
Trustee
By:
------------------------------------
Name:
Title:
Attest:
----------------------------
Authorized Signature
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[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates referred
to in the within-mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual
capacity but solely as
Trustee
By:
-------------------------------------
Authorized Officer
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FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
please print or typewrite name and address including zip code of assignee
the within Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
attorney to transfer said Certificate on the books of the Trustee with full
power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES
EXCEPT REGULATION S GLOBAL AND
REGULATION S DEFINITIVE CERTIFICATES]
In connection with any transfer of this Certificate occurring
prior to the date that is the earlier of the date of an effective Registration
Statement or the date two years after the later of the original issuance of
this Certificate or the last date on which this Certificate was held by
Continental Airlines, Inc., the Trustee or any affiliate of such Persons, the
undersigned confirms that without utilizing any general solicitation or general
advertising that:
[Check One]
[ ] (a) this Certificate is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended, provided by
Rule 144A thereunder.
or
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[ ] (b) this Certificate is being transferred other than in accordance with
(a) above and documents are being furnished that comply with the conditions of
transfer set forth in this Certificate and the Agreement.
If neither of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Certificate in the name of any Person
other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 3.06 of the Agreement
shall have been satisfied.
Date: [Name of Transferor]
------------------------- --------------------
NOTE: The signature must correspond
with the name as written upon the face
of the within-mentioned instrument in
every particular, without alteration or
any change whatsoever.
Signature Guarantee:
-----------------------------------
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Certificate for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, as amended, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
Dated:
------------------------ ------------------------------
NOTE: To be executed by
an executive officer.
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EXHIBIT B
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS OF CERTIFICATES PURSUANT TO REGULATION S
[date]
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Trustee Administration
Re: Continental Airlines Pass Through Trust (the "Trust"), Series
1997-1B-O, Continental Airlines Pass Through Certificates,
Series 1997-1B-O (the "Certificates")
Sirs:
In connection with our proposed sale of $_____ Fractional
Undivided Interest of the Certificates, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the Securities
Act of 1933, as amended, and, accordingly, we represent that:
(1) the offer of the Certificates was not made to a
person in the United States;
(2) either (a) at the time the buy order was originated,
the transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee was
outside the United States or (b) the transaction was executed in, on
or through the facilities of a designated off-shore securities market
and neither we nor any person acting on our behalf knows that the
transaction has been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
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In addition, if the sale is made during a restricted period
and the provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance with
the applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case may
be.
You and Continental Airlines, Inc. are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby. Terms used in
this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
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EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS OF CERTIFICATES TO
NON-QIB INSTITUTIONAL ACCREDITED INVESTORS
________________, ____
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Trustee Administration
Continental Airlines, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
CONTINENTAL AIRLINES
PASS THROUGH TRUST, SERIES 1997-1B-O (the "Trust")
Pass Through Certificates, Series 1997-1B-O
(the "Certificates")
Ladies and Gentlemen:
In connection with our proposed purchase of U.S.
$[_____________] Fractional Undivided Interest of Certificates, we confirm
that:
1. We understand that any subsequent transfer of the
Certificates is subject to certain restrictions and conditions set forth in the
Trust Agreement, dated as of March 21, 1997, between Continental Airlines, Inc.
(the "Company") and Wilmington Trust Company (the "Trustee") relating to the
Certificates, and we agree to be bound by, and not to resell, pledge or
otherwise transfer the Certificates except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended (the
"Securities Act").
2. We are purchasing Certificates having an aggregate
principal amount of not less than $100,000 and each account (if
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any) for which we are purchasing Certificates is purchasing Certificates having
an aggregate principal amount of not less than $100,000.
3. We understand that the Certificates have not been
registered under the Securities Act, that the Certificates are being sold to us
in a transaction that is exempt from the registration requirements of the
Securities Act and that the Certificates may not be offered or resold except as
permitted in the following sentence. We agree, on our own behalf and on behalf
of any accounts for which we are acting as hereinafter stated, that, if we
should sell any Certificates within two years after the later of the original
issuance of such Certificate and the last date on which such Certificate is
owned by the Company, the Trustee or any affiliate of any of such persons, we
will do so only (A) to the Company, (B) in accordance with Rule 144A under the
Securities Act to a "qualified institutional buyer" (as defined therein), (C)
outside the United States in accordance with Rule 904 of Regulation S under the
Securities Act, (D) pursuant to the exemption from registration provided by
Rule 144 under the Securities Act or (E) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing any of the Certificates from us a notice advising such
purchaser that resales of the Certificates are restricted as stated herein.
4. We understand that, on any proposed resale of any
Certificates, we will be required to furnish to the Company and the Trustee
such certifications, legal opinions and other information as the Company and
the Trustee may reasonably require to confirm that the proposed sale complies
with the foregoing restrictions. We further understand that the Certificates
purchased by us will bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and have such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of our investment in the
Certificates, and we and any accounts for which we are acting are each able to
bear the economic risk of our or their investments.
6. We are acquiring the Certificates purchased by us for
our own account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we
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exercise sole investment discretion and not with a view to any distribution of
the Certificates, subject, nevertheless to the understanding that the
disposition of our property shall at all times be and remain within our
control.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy thereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:
-----------------------------------
Name:
Title:
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EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
Continental Airlines Pass Through Trust, Series 1997-[1_]
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated ____________, 199_
(the "Agreement"), between Wilmington Trust Company, a Delaware banking
corporation ("WTC"), not in its individual capacity except as expressly
provided herein, but solely as trustee under the Pass Through Trust Agreement
dated as of March 21, 1997 (as amended, modified or otherwise supplemented from
time to time, the "Pass Through Trust Agreement") in respect of the Continental
Airlines Pass Through Trust, Series 1997-1_-O (the "Assignor"), and Wilmington
Trust Company, a Delaware banking corporation, not in its individual capacity
except as expressly provided herein, but solely as trustee under the Pass
Through Trust Agreement dated as of March 21, 1997 (the "New Pass Through
Trust Agreement") in respect of the Continental Airlines Pass Through Trust,
Series 1997-1_-S (the "Assignee").
W I T N E S S E T H:
WHEREAS, the parties hereto desire to effect on the date
hereof (the "Transfer Date") (a) the transfer by the Assignor to the Assignee
of all of the right, title and interest of the Assignor in, under and with
respect to, among other things, the Trust Property and each of the documents
listed in Schedule I hereto (the "Scheduled Documents") and (b) the assumption
by the Assignee of the obligations of the Assignor (i) under the Scheduled
Documents and (ii) in respect of the Certificates issued under the Pass Through
Trust Agreement; and
WHEREAS, the Scheduled Documents permit such transfer upon
satisfaction of certain conditions heretofore or concurrently herewith being
complied with;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements herein contained, the parties hereto do hereby
agree as follows (capitalized terms used herein without definition having the
meaning ascribed thereto in the Pass Through Trust Agreement):
1. Assignment. The Assignor does hereby sell, assign,
convey, transfer and set over unto the Assignee as of the Transfer Date all of
its present and future right, title and
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108
interest in, under and with respect to the Trust Property and the Scheduled
Documents and each other contract, agreement, document or instrument relating
to the Trust Property or the Scheduled Documents (such other contracts,
agreements, documents or instruments, together with the Scheduled Documents, to
be referred to as the "Assigned Documents"), and any proceeds therefrom,
together with all documents and instruments evidencing any of such right, title
and interest.
2. Assumption. The Assignee hereby assumes for the benefit
of the Assignor and each of the parties listed in Schedule II hereto
(collectively, the "Beneficiaries") all of the duties and obligations of the
Assignor, whenever accrued, pursuant to the Assigned Documents and hereby
confirms that it shall be deemed a party to each of the Assigned Documents to
which the Assignor is a party and shall be bound by all the terms thereof
(including the agreements and obligations of the Assignor set forth therein) as
if therein named as the Assignor. Further, the Assignee hereby assumes for the
benefit of the Assignor and the Beneficiaries all of the duties and obligations
of the Assignor under the Outstanding Certificates and hereby confirms that the
Certificates representing Fractional Undivided Interests under the Pass Through
Trust Agreement shall be deemed for all purposes of the Pass Through Trust
Agreement and the New Pass Through Trust Agreement to be certificates
representing the same fractional undivided interests under the New Pass Through
Trust Agreement equal to their respective beneficial interests in the trust
created under the Pass Through Trust Agreement.
3. Effectiveness. This Agreement shall be effective upon the
execution and delivery hereof by the parties hereto, and each
Certificateholder, by its acceptance of its Certificate or a beneficial
interest therein, agrees to be bound by the terms of this Agreement.
4. Payments. The Assignor hereby covenants and agrees to pay
over to the Assignee, if and when received following the Transfer Date, any
amounts (including any sums payable as interest in respect thereof) paid to or
for the benefit of the Assignor that, under Section 1 hereof, belong to the
Assignee.
5. Further Assurances. The Assignor shall, at any time and
from time to time, upon the request of the Assignee, promptly and duly execute
and deliver any and all such further instruments and documents and take such
further action as the
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Assignee may reasonably request to obtain the full benefits of this Agreement
and of the right and powers herein granted. The Assignor agrees to deliver the
Global Certificates, and all Trust Property, if any, then in the physical
possession of the Assignor, to the Assignee.
6. Representations and Warranties. (a) The Assignee
represents and warrants to the Assignor and each of the Beneficiaries that:
(i) it has all requisite power and authority and
legal right to enter into and carry out the transactions
contemplated hereby and to carry out and perform the
obligations of the "Pass Through Trustee" under the Assigned
Documents;
(ii) on and as of the date hereof, the
representations and warranties of the Assignee set forth in
Section 7.15 of the New Pass Through Trust Agreement are true
and correct.
(b) The Assignor represents and warrants to the Assignee
that:
(i) it is duly incorporated, validly existing and
in good standing under the laws of the State of Delaware and
has the full trust power, authority and legal right under the
laws of the State of Delaware and the United States pertaining
to its trust and fiduciary powers to execute and deliver this
Agreement;
(ii) the execution and delivery by it of this
Agreement and the performance by it of its obligations
hereunder have been duly authorized by it and will not violate
its articles of association or by-laws or the provisions of
any indenture, mortgage, contract or other agreement to which
it is a party or by which it is bound; and
(iii) this Agreement constitutes the legal, valid
and binding obligations of it enforceable against it in
accordance with its terms, except as the same may be limited
by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general
D-3
110
principles of equity, whether considered in a proceeding at
law or in equity.
7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAWS.
8. Counterparts. This Agreement may be executed in any
number of counterparts, all of which together shall constitute a single
instrument. It shall not be necessary that any counterpart be signed by both
parties so long as each party shall sign at least one counterpart.
9. Third Party Beneficiaries. The Assignee hereby agrees,
for the benefit of the Beneficiaries, that its representations, warranties and
covenants contained herein are also intended to be for the benefit of each
Beneficiary, and each Beneficiary shall be deemed to be an express third party
beneficiary with respect thereto, entitled to enforce directly and in its own
name any rights or claims it may have against such party as such beneficiary.
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IN WITNESS WHEREOF, the parties hereto, through their
respective officers thereunto duly authorized, have duly executed this
Assignment as of the day and year first above written.
ASSIGNOR:
WILMINGTON TRUST COMPANY, not in its
individual capacity except as expressly
provided herein, but solely as trustee
under the Pass Through Trust Agreement
in respect of the Continental Airlines
Pass Through Trust 1997-1_-O
By:
-------------------------------------
Title:
ASSIGNEE:
WILMINGTON TRUST COMPANY, not in its
individual capacity except as expressly
provided herein, but solely as trustee
under the Pass Through Trust Agreement
in respect of the Continental Airlines
Pass Through Trust 1997-1_-S
By:
-------------------------------------
Title:
▇-▇
▇▇▇
▇▇▇▇▇▇▇▇ I
Schedule of Assigned Documents
(1) Intercreditor Agreement dated as of March 21, 1997 among the Trustee,
the Other Trustees, the Liquidity Providers, the liquidity providers,
if any, relating to the Certificates issued under (and as defined in)
each of the Other Pass Through Trust Agreements and the Subordination
Agent.
(2) Registration Rights Agreement dated as of March 21, 1997 among the
Initial Purchasers, the Trustee, the Other Trustees, and the Company.
(3) Escrow and Paying Agent Agreement (Class __) dated as of March 21,
1997 among the Escrow Agent, the Initial Purchasers, the Trustee and
the Paying Agent.
(4) Note Purchase Agreement dated as of March 21, 1997 among the Company,
the Trustee, the Other Trustees, the Depositary, the Escrow Agent, the
Paying Agent and the Subordination Agent.
(5) Deposit Agreement (Class __) dated as of March 21, 1997 between the
Escrow Agent and the Depositary.
(6) Each of the Operative Agreements (as defined in the Participation
Agreement for each Aircraft) in effect as of the Transfer Date.
D-6
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Schedule II
Schedule of Beneficiaries
Wilmington Trust Company, not in its individual capacity but solely as
Subordination Agent.
Wilmington Trust Company, not in its individual capacity but solely as Paying
Agent
ABN AMRO Bank N.V., Chicago Branch, as Liquidity Provider
ING Bank N.V., as Liquidity Provider
Continental Airlines, Inc.
Credit Suisse First Boston Corporation, as Initial Purchaser
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as Initial Purchaser
Chase Securities Inc., as Initial Purchaser
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., as Initial Purchaser
First Security Bank, National Association, as Escrow Agent
Each of the other parties to the Assigned Documents
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EXHIBIT E
FORM OF NOTICE TO DESIGNATE NOMINEE AS WITHHOLDING AGENT
(Treas. Reg. Section 1.1445-8(f); 17 C.F.R. 240.10b-17(b)(1))
[DATE]
National Association of
Securities Dealers, Inc.
Market Operations
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Continental Airlines Pass Through Certificates,
Series 1997-1B-O Pass Through Certificates, Series
1997-1B-O
With respect to distributions to be made on [INSERT
DISTRIBUTION DATE] to holders of the above- referenced Pass Through
Certificates in the amount of $ ____ per $1,000 principal amount of
Certificate, we hereby designate the appropriate nominees to withhold from
amounts distributable to any non-U.S. Person such amounts as required by
section 1446 of the Internal Revenue Code of 1986, as amended. The term
"non-U.S. Person" means any person or entity that, for U.S. federal income tax
purposes, is not a "U.S. Person." "U.S. Person" for this purpose means a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized under the laws of the United States or any
political subdivision thereof, or an estate or trust, the income of which is
subject to U.S. federal income taxation regardless of its source. The date of
record for determining holders of Certificates entitled to receive the
distribution on [INSERT DISTRIBUTION DATE] is [INSERT RELATED RECORD DATE].
Very truly yours,
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