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EXHIBIT 10.41
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
___________________________________X
IN RE:
CASE NOS. 90-932
through 90-984
CONTINENTAL AIRLINES, INC.,
et al.,
JOINTLY ADMINISTERED
DEBTORS. UNDER CASE NO. 90-932
___________________________________X
STIPULATION AND ORDER
AMONG CONTINENTAL AIRLINES, INC.,
CONTINENTAL AIRLINES HOLDINGS, INC.,
NEW YORK AIRLINES, INC.
UNITED STATES LEASING INTERNATIONAL, INC.,
AIRLEASE, LTD., PS GROUP, INC.,
AND TRUST COMPANY FOR USL, INC.
CONCERNING SEVEN BOEING 737-200 AIRCRAFT
AND CERTAIN ENGINES AND RELATED EQUIPMENT.
IT IS HEREBY STIPULATED AND AGREED by and between Continental
Airlines, Inc., debtor and debtor in possession ("Continental"), Continental
Airlines Holdings, Inc., debtor and debtor in possession ("Holdings"), New York
Airlines, Inc., debtor and debtor in possession ("NYA" and, together with
Continental and Holdings, the "Debtors"), United States Leasing International,
Inc., formerly United States Airlease, Inc. ("US Airlease"), Airlease, Ltd.
("Airlease"), PS Group, Inc. ("PS") (PS, together with US Airlease and
Airlease, the "Beneficiaries"), and Trust Company for USL, Inc., as owner
trustee for Beneficiaries ("Lessor" and together with the Beneficiaries, the
"Lessor Parties"), subject to Bankruptcy Court approval, as follows:
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I.
1. On December 3, 1990 (the "Petition Date"), the
Debtors and certain of their affiliates filed petitions for relief under
Chapter 11, Title 11 United States Code (the "Bankruptcy Code"). Pursuant to
Section 1107 and 1108 of the Bankruptcy Code, the Debtors have retained
possession of their property and are authorized as debtors in possession to
continue the operation and management of their respective businesses.
2. NYA and Lessor Parties (as an assignee of GATX
Leasing Corporation), have entered into seven Lease Agreements (each a "Lease"
and collectively the "Leases") covering, among other property, seven Boeing
737-200 jet-powered aircraft and 14 engines (each such aircraft and the
associated engines being referred to herein as an "Aircraft"), described as
follows:
Engine
Aircraft United States Manufacturer's
Serial Nos. Registry Nos. Serial Nos.
----------- ------------- --------------
20073 N737OF P674344B
(to become N11244) P674380B
20074 N7371F P674487B
(to become N14245) P674329B
20072 N7372F P674266B
(to become N73243) P674262B
20361 N10251 P674361B
(formerly N7373F) P674341B
20362 N17252 P674374B
(formerly N7374F) P674335B
20070 N14241 P674250B
(formerly N7378F) P674299B
20071 N10242 P674314B
(formerly N7379F) P674384B
In connection with the Leases, Holdings executed and delivered seven Guarantees
(each a "Guarantee" and, collectively, the
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"Guarantees") pursuant to which Holdings guaranteed the obligations of NYA
under the Leases.
3. On January 16, 1991, Debtors filed a Motion with
Respect to Section 1110 of the Bankruptcy Code (the "1110 Motion") in which
Debtors designated the Leases to be Section 1110 transactions and, therefore,
entitled to the benefits of Section 1110. As authorized pursuant to the Order,
dated January 30, 1991, of the Bankruptcy Court under Section 1110 of the
Bankruptcy Code regarding the Motion of Continental Airlines, Inc., et al., and
the Transactions listed on Exhibit 2 thereof (the "1110 Order"), NYA has cured
all defaults under the Leases (or has agreed to do so, as provided in paragraph
28 below) and has continued to perform its obligations under the Leases in
accordance with the terms thereof.
4. Notwithstanding NYA's continued performance under the
Leases, Debtors have asserted that the Basic Rent (as defined in the Leases) is
substantially above fair market rental values for the Aircraft. Debtors have
asserted to the Lessor Parties that Debtors' continued use and operation of the
Aircraft is subject to reaching an agreement to revise certain financial terms
contained in the Leases.
5. Debtors and the Lessor Parties have subsequently
negotiated concerning the status and treatment of the Leases and have reached
the agreements set forth herein. These various agreements, including NYA's
agreement to assign its rights and obligations under the Leases to Continental
and Continental's agreement to assume and perform such obligations all as
described
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below, are part of a unified settlement among the Lessor Parties and Debtors
concerning treatment of the Leases under Sections 1110, 361, 362, 363 and 365
of the Bankruptcy Code as set forth in greater detail below.
6. Debtors and the Lessor Parties agree that each of the
Leases is hereby modified to the extent applicable as set forth below in this
Stipulation.
7. Effective as of July 1, 1991 and continuing
throughout the remainder of the term of each Lease (including any extension
described herein but excluding any further renewal term as described in Section
21.02 of each Lease), the monthly Basic Rent owed pursuant to each of the
Leases payable on the first business day of the month shall be $52,500 (the
"Revised Rental Rates"), subject to rent deferral described below. In the
event a Debtor pays in excess of the Revised Rental Rate with respect to any
Basic Rent due on or after July 1, 1991 and prior to the date this Stipulation
is approved by the Bankruptcy Court, such excess shall be refunded to such
Debtor three business days following the date of such approval.
Notwithstanding the foregoing provisions of this paragraph 7, any periodic
rentals paid under any sublease of an Aircraft which are in excess of the
Revised Rental Rates, but less than $115,000 per month, shall be paid to Lessor
upon receipt. In addition, to the extent used in calculating liquidated
damages for any purpose under or in connection with any of the Leases or this
Stipulation, the stipulated loss values thereunder shall be deemed to be and
each hereby is revised downward by an amount equal to the difference,
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as of the time of determination, on a present value basis using a discount rate
equal to the Stipulated Rate (as defined in paragraph 9 below), between the
remaining Basic Rent which would have been payable based on the original basic
rent rate and the remaining Basic Rent actually payable based on the Revised
Rental Rates (the "Revised SLV"); provided that the foregoing shall not affect
the stipulated loss values in connection with, but solely in connection with,
an Event of Loss (as defined in the Leases) or required insurance under such
Leases. The Revised SLV during the term of the Lease extensions provided for
herein shall initially be equal to the Revised SLV in effect as of the date
originally scheduled in each Lease for the last Basic Rent payment and shall
decline by 1% of Lessor's Cost (as set forth in each Lease) per month until the
stipulated loss value under such Lease is equal to 20% of such Lessor's Cost
and thereupon shall remain at 20% of lessor's costs for the remainder of the
term of the Lease extension.
8. With respect to the Basic Rent due under the Leases,
Continental shall be entitled to defer such Basic Rent as follows:
a. 100% of the August 1, 1991, payment;
b. 50% of the September 1, 1991, payment; and
c. 100% of each of the payments due October 1,
1991, through and including March 1, 1992.
Any rentals deferred as provided in this paragraph 8 are
referred to as the "Deferred Amount." Any Deferred Amount shall bear interest
at the Stipulated Rate (defined below) and
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shall be paid, together with such interest, as set forth below in paragraph 10.
9. Interest shall accrue on the outstanding principal
amount of the Deferred Amount until paid in full at the rate of 12% per annum,
calculated on the basis of 360-day year consisting of twelve 30-day months (the
"Stipulated Rate"). In all other cases in which interest is provided for
herein, such interest shall accrue on the relevant unpaid principal amount
until paid in full at a per annum rate equal to the 5-year Treasury Rate (as
published in the most recent Federal Reserve H. 15 report or, if such report
shall be discontinued, as published in any equivalent official report of the
United States government, in either case as of the date Lessor funds the
relevant amount) plus 368 basis points, calculated on the basis of a 365-day
year and actual days elapsed (the "Stated Interest Rate"). Notwithstanding the
foregoing, if, between the period from the Petition Date through December 31,
1991, Debtors enter into settlement agreements with other lessors pertaining to
more than 25% of Debtors' current aircraft of comparable model, series, engine
type, age and other specifications to the Aircraft which provide (i) in
connection with the rent deferrals, for rates of interest higher than the
Stipulated Rate, then the Stipulated Rate shall be adjusted as of the date such
other agreements are approved by the Bankruptcy Court to the arithmetic average
of such higher rates or (ii) in connection with modification financing (as
described in paragraphs 12 et seq. below), for interest rates determined by a
spread over long term Treasury Rates with a spread greater than
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the spread used in calculating the Stated Interest Rate, then the spread used
to calculate the Stated Interest Rate shall be adjusted as of the date such
other agreements are approved by the Bankruptcy Court to the arithmetic average
of such higher spreads.
10. The unpaid Deferred Amounts and related accrued
interest as of April 1, 1992 (the "Deferral Repayment Start Date") are for each
Lease referred to herein collectively as the "Total Deferred Amount" for such
Lease. The obligation of Continental to repay the Total Deferred Amount for
each Lease shall be evidenced by separate promissory notes (each, a "Note") in
the form of Exhibit A hereto. Notes relating to the Leases shall provide that
Continental shall repay the applicable Total Deferred Amount and the interest
accrued on the unamortized portion thereof at tho Stipulated Rate in twelve
equal monthly installments of principal and interest commencing on April 1,
1992 and thereafter on the first Business Day (as defined in the applicable
Lease) of each of the next eleven months. Each such Note shall be deemed
evidence of the obligations referred to in this paragraph as further detailed
in Exhibit A, but such obligations shall exist whether or not Continental shall
execute and deliver a Note as required hereby, and such obligation shall be
deemed to have an allowed administrative expense claim, with the priority
provided by Sections 503(b)(1)(A) and 507(a)(1) of the Bankruptcy Code, for any
amounts under such Note (or in respect of such obligations, as the case may
be), not paid when due by Continental; provided, however, that if Continental
grants
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a higher priority to any other aircraft lessor in respect of basic rent
(treating as rent for the purposes of this proviso any obligation originally so
denominated without regard to the outcome of any issue as to whether the
underlying agreement is a true lease or a secured loan (the "Characterization
Issue") in respect of the particular transaction), the obligations of
Continental hereunder with respect to Deferred Amounts shall be automatically
accorded the benefit of such higher priority. Such claims shall be payable
currently so long as Continental is then generally paying when due
administrative expense claims which have the same or a lower priority (except
that amounts payable only as a result of an acceleration shall be payable
currently only if such claims other than wages, salaries or commissions for
services rendered within the meaning of Section 503(b)(1)(A) of the Bankruptcy
Code are generally being paid when due) and, notwithstanding any other
provision hereof, Lessors shall have all rights to demand payment of such
claims pursuant to Section 503(a) of the Bankruptcy Code or otherwise. A
"Default" under any Note shall constitute an "Event of Default" under the
related Lease and in respect of any FAA Modification Advance (as defined below)
or New Image Modification Advance (as defined below) with respect to such
Aircraft; and an "Event of Default" under any Lease shall constitute a
"Default" under the related Note and in respect of any such FAA or New Image
Modification Advances and the Lessor shall be entitled to exercise its rights
and remedies under the Leases, the Note, and hereunder including, without
limitation, the remedy set forth in paragraph 25 below.
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11. Continental's (i) payment of the Total Deferred
Amount and interest thereon as described above, (ii) payment of the basic and
supplemental rent under a Lease with respect to any period and performance of
its other obligations under such Lease and the related Operative Documents or
Operative Agreements (as defined in such Lease) in accordance with the
respective terms thereof (as modified hereby) with respect to such period and
(iii) performance of any additional obligation hereunder with respect to such
Lease with respect to such period (the obligations described in clauses (i),
(ii) and (iii) referred to herein, collectively, as the "Modified Lease
Obligations") shall constitute full satisfaction of any payment or performance
obligation with respect to that period for such Lease under Sections 365, 362,
363 and 1110 of the Bankruptcy Code that Continental may have for such period
for the applicable aircraft or equipment under such Lease and Continental shall
not have, and accordingly, the Lessor Parties expressly waive any right to, any
further payment or performance obligations under or in connection with such
Lease and the related Operative Documents or Operative Agreements for such
period. Nothing herein shall relieve or be deemed to relieve Continental of
any obligations to comply with provisions of the Leases not expressly modified
by this Stipulation (including without limitation provisions relating to
maintenance, return, insurance, notice and inspection) or otherwise to comply
with provisions of the Leases or related Operative Agreements or Operative
Documents pertaining to payments other than basic rent (including without
limitation,
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payments in respect of indemnities, interest on overdue payments, events of
default, events of loss and any termination, purchase or renewal options).
12. Upon notification from Continental to Lessor as
described below, the Lessor shall finance the capital expenditures (up to the
amounts set forth on Exhibit 8 hereto) constituting, if the applicable work is
performed by Debtor, the cost of materials and Debtor's "fully burdened labor
cost" or, if such work is done by a third party, the actual invoiced cost
thereof, for any improvement or modification to any aircraft subject to the
applicable Lease that is required to be made pursuant to any rule, regulation
or directive of the Federal Aviation Administration relating to modifications
for aging aircraft ("Aging Aircraft Modifications") and TCAS and Windshear
Detection Modifications ("Avionics Modifications" and together, with Aging
Aircraft Modifications, collectively the "FAA "Modifications"), up to $396,642
in the aggregate for each Aircraft. The parties stipulate for the purpose of
this Stipulation and Order that Continental's current "fully burdened labor
cost" on the date hereof is $27.53 per man-hour. Any future "fully burdened
labor cost" for purposes of determining a Lessor's obligations hereunder with
respect to FAA Modifications and New Image Modifications (as hereinafter
defined) shall be calculated using the same methodology as used to calculate
the current "fully burdened labor cost" and shall in any event be no more than
the then prevailing average rate quoted by reputable third party providers used
by Continental for the performance of
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comparable work. Exhibit B annexed hereto describes the nature of the FAA
Modifications.
13. Promptly upon completion of any FAA Modification of
an aircraft subject to a Lease, Continental shall so notify the Lessor in
writing, which notice shall describe the FAA Modification and set forth the
calculation of the amount to be paid by Lessor. In addition, Continental shall
provide such additional support information as the Lessor may reasonably
request to verify the performance of the work at issue and the actual cost
thereof. Within five business days following the later receipt of such notice
or receipt of such reasonably requested support information, the Lessor shall
pay by wire transfer to such account as Continental may designate the lesser of
(i) the amount set forth in such notice and (ii) the maximum amount Lessor is
obligated to finance for such FAA Modification as set forth on Exhibit B (an
"FAA Modification Advance"). The Lessor shall have the right to inspect the
Aircraft on which such FAA Modification was performed in accordance with the
inspection provisions of the applicable Lease to verify the performance of the
applicable FAA Modification, provided that any failure to conduct such
inspection shall not affect the Lessor's obligation to fund such FAA
Modification Advance.
14. Any FAA Modification Advance relating to an Aging
Aircraft Modification shall bear interest at the Stated Interest Rate.
Continental shall make equal monthly payments of principal and interest in
respect of each such FAA Modification Advance commencing on the first business
day of the month immediately
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succeeding the date of funding, such FAA Modification in an amount calculated
to amortize such FAA Modification Advance over five years, it being agreed that
Continental shall have no obligation to make such payments beyond the
expiration of the applicable Lease, regardless of whether such applicable FAA
Modification Advance shall have been fully amortized.
15. If any Aging Aircraft Modification which would give
rise to an FAA Modification Advance is to be performed or installed on or after
December 31, 1993, Lessor shall have the option to decline payment of such FAA
Modification Advance. If Lessor so declines to fund such Aging Aircraft
Modification Advance, Continental shall have the option to terminate the
applicable Lease upon ten days prior written notice to Lessor and return the
applicable Aircraft pursuant to the return conditions of such Lease (except
that a financial adjustment shall be made in lieu of any hour or cycle minimum
requirements). In connection with such early termination by Continental,
Continental shall pay, upon return of the applicable Aircraft to the Lessor,
the outstanding principal amount of all FAA Modification Advances, Nev Image
Modification Advances and Total Deferred Amount, to the extent Continental
would otherwise have been required to pay such principal balance during the
remaining term of the Lease of such Aircraft in accordance with the terms
hereof.
16. Any FAA Modification Advance relating to an Avionics
Modification paid by Lessor shall bear interest at the Stated Interest Rate
and, at the option of Lessor, to be selected
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at the time such FAA Modification Advance relating to Avionics Modifications is
paid, such FAA Modification Advance
a. shall be repaid by Continental in equal
monthly installments of principal and
interest calculated to amortize
such Modification Advance from the date of
payment thereof over the remaining term of
the applicable Lease; or
b. shall be amortized at the applicable Stated
Interest Rate over 84 months and Continental
shall make monthly payments of equal
principal and interest calculated to provide
that such FAA Modification Advance would be
fully amortized over 84 months, it being
agreed that Continental shall have no
obligation to make such payments beyond the
expiration of the applicable Lease,
regardless of whether the FAA Modification
Advance shall have been fully amortized.
Payments with respect to such FAA Modification Advances, shall be payable on
the first business day of each month, commencing with the month immediately
succeeding the date of funding such FAA Modification Advance. In the event
Lessor elects the repayment option set forth in clause (a) above, at the
expiration or termination of the term of the applicable Lease, except in
connection with a termination as a result of an Event of Default under such
Lease, including as a result of Default under the
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related Note or this Stipulation, Continental may remove and retain the
relevant Avionics Modifications, provided that such removal shall not cause
physical damage to the applicable Aircraft. If Lessor elects option (b) above,
Continental agrees, to the extent not already provided pursuant to the
applicable Lease, to execute such documentation as the Lessor may reasonably
request in order to vest title to such modification in the Lessor.
Continental shall repay Lessor for each FAA Modification
Advance financed by Lessor in accordance with the foregoing paragraphs.
Continental's obligation to make such repayments shall be independent of the
related Lease and shall survive the termination thereof prior to the repayment
in full of the applicable FAA Modification Advance and accrued interest thereon
(including without limitation a termination in connection with a winding up of
the business or a Fundamental Business Restructuring as each is defined below).
If Continental shall fail to make any scheduled installment in respect of the
repayment of an FAA Modification Advance within the cure periods provided in
paragraph 25 below, such failure shall constitute an Event of Default under the
applicable Lease, and the Applicable Note and the full amount of such FAA
Modification Advance that would otherwise have been repaid by Continental shall
be accelerated (unless acceleration is waived by Lessor and such waiver may be
made and shall be effective without further order of the Bankruptcy Court) and
shall accrue interest at a rate per
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annum equal to the applicable Stated Interest Rate plus 2% from the original due
date of such installment until paid in full.
17. Upon notification from Continental to the Lessor as
provided below, the Lessor shall finance the capital expenditures constituting,
if the applicable work is performed by Continental, the cost of materials and
Continental's "fully burdened labor cost" or, if such work is done by a third
party, the actual invoiced cost thereof, for any New Image Interior or Exterior
Modification (a "New Image Modification") of the sort described in Exhibit B
hereto up to $449,323 in the aggregate for each Aircraft.
18. (a) Promptly upon completion of any New Image
Modification of an Aircraft subject to a Lease to be financed by the Lessor,
Continental shall so notify the Lessor in writing, which notice shall describe
the New Image Modification and set forth the amount to be financed by the
Lessor. In addition, Continental shall provide such additional support
information as the Lessor may reasonably request to verify that the work at
issue has been performed and the actual cost thereof. The Lessor shall have the
right to inspect the Aircraft on which such New Image Modification was performed
in accordance with the inspection provisions of the applicable Lease to verify
the performance of the applicable New Image Modification, provided that any
failure to conduct such inspection shall not affect the Lessor's obligation to
fund such New Image Modification Advance. Within five business days following
tho later of receipt of such notice or receipt of such reasonably requested
support
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information, the Lessor shall pay by wire transfer to such account as
Continental may designate the lesser of (i) the amount set forth in such notice
and (ii) the maximum amount the Lessor is obligated to finance for such New
Image Modification (a "New Image Modification Advance"). The outstanding New
Image Modification Advances so financed shall accrue interest at the Stated
Interest Rate calculated as of the date such New Image Modification Advance is
financed by the Lessor.
(b) Continental shall repay each New Image
Modification Advance, together with interest thereon, monthly on the first
Business Day (as defined in the Lease) of each month, commencing with the month
immediately succeeding the month in which such amount is paid by the Lessor, in
equal payments of principal and interest calculated to amortize such New Image
Modification Advance over a period of time equal to the then remaining term (as
defined in the applicable Lease) of the applicable Lease as extended hereby.
Continental's obligation to make such repayments shall be independent of the
related Lease and shall survive the termination thereof prior to the repayment
in full of the applicable New Image Modification Advance and accrued interest
thereon (including without limitation a termination in connection with a
Fundamental Business Restructuring as defined below). If Continental shall
fail to make any scheduled installment in respect of the repayment of a New
Image Modification Advance within the cure periods provided in paragraph 25
below, such failure shall constitute an Event of Default under the applicable
Lease and related Note, and the full
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amount thereof shall be accelerated (unless acceleration is waived by Lessor
and such waiver may be made and shall be effective without further order of the
Bankruptcy Court) and shall accrue interest at the stated interest rate plus
two percent per annum from the original due date of such installment until paid
in full.
19. (a) The Lessor shall be deemed to have an allowed
administrative expense claim, with the priority provided by Section 364(c)(1)
of the Bankruptcy Code, for any amounts of principal and interest (including
overdue interest) not paid when due, subject to any applicable cure period, by
Continental in respect of an FAA Modification Advance or New Image Modification
Advance. Such claims shall be payable currently so long as Continental is then
generally paying when due administrative expense claims which have the same or
a lower priority (except that amounts payable only as a result of an
acceleration shall be payable currently only if such claims other than wages,
salaries or commissions for services rendered within the meaning of Section
503(b)(1)(A) of the Bankruptcy Code are generally being paid when due) and,
notwithstanding any other provision hereof, Lessor shall have all rights to
demand payment of such claims pursuant to Section 503(a) of the Bankruptcy Code
or otherwise, and the rights set forth in the last sentence of paragraph 25
below. Notwithstanding the first sentence of this paragraph 19(a), (i) the
Lessor hereby acknowledges and agrees that such claims in respect of any FAA
Modification Advance or New Image Modification Advance shall be, and are hereby
deemed,
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junior and subordinate in right of payment to any and all credit obtained debt
or other obligations incurred, whether previously, concurrently or hereafter
incurred by Continental, including, without limitation, debtor-in-possession
financing heretofore extended by The Chase Manhattan Bank, N.A. and American
Airlines, Inc. by authority granted by the Bankruptcy Court, with a priority
senior to the priority established by Section 507(a)(1) and 503(b)(1)(A),
including, without limitation, credit obtained or debt or other obligations
incurred or guaranteed by Continental pursuant to, and having a priority
established by, Sections 364(c) or (d) or Section 507(b) of the Bankruptcy
Code, but excluding any such credit or debt provided by other lessors (treating
as a lessor for purposes of this proviso any party originally so denominated
without regard to the outcome of the Characterization Issue in respect of the
particular transaction) of aircraft in Continental's fleet as of the date
hereof in respect of modifications, improvements or additions to such aircraft
("Other Lessor Financing Amounts"), and (ii) Continental's obligations
hereunder with respect to FAA Modification Advances and New Image Modification
Advances under each Lease to Lessor shall rank (x) pari passu among each other;
and (y) pari passu or senior to Continental's obligations now or hereafter
incurred with respect to any Other Lessor Financing Amounts. The Lessor agrees
that it shall not raise any objection in the Bankruptcy Court to the incurrence
of any indebtedness or other obligation by Continental with a priority senior
to the priority provided herein with respect to FAA Modification
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Advances and New Image Modification Advances based on the effect of such
incurrence of indebtedness or other obligations on continental's obligation to
the Lessor with respect to FAA Modification Advances or New Image Modification
Advances; provided, however that nothing herein shall preclude the Lessor from
raising any such objection on grounds other than the priority of the Lessor's
claim for repayment of FAA Modification Advances or New Image Modification
Advances.
(b) A failure of Continental to repay any FAA
Modification Advances or New Image Modification Advances within the applicable
cure periods shall constitute an Event of Default under the applicable
underlying Lease.
(c) The Lessor shall not be obligated to fund an
FAA Modification Advance or New Image Modification Advance with respect to a
Lease while an Event of Default exists thereunder.
(d) The provisions in this Stipulation relating
to Modification Advances shall supercede Section 9.05 of the applicable Lease.
20. Approval of this Stipulation by the Bankruptcy Court
shall constitute authorization for the applicable Debtor (i) to incur the
indebtedness involved with the Deferred Amounts, the FAA Modification Advances
and the New Image Modification Advances with respect to the equipment covered
by each of the Leases; and (ii) to assume the Leases on the terms and
conditions stated herein. Notwithstanding clause (i) above, the Debtors
acknowledge that such authorization to incur the indebtedness involved with any
New Image Modification Advance may be subject
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to such additional terms and conditions as the Bankruptcy Court may require
upon motion by Continental in connection with approval of the "New Image"
modification program or otherwise; provided, however that the foregoing shall
not affect the Lessor's obligation to fund or Lessor's rights with respect to,
New Image Modification Advances and the Lessor may rely without further inquiry
on a notice from Continental under paragraph 17 as conclusive evidence of
Continental's authority to incur the indebtedness constituting the New Image
Modification Advance thereby requested. The assumption referred to in clause
(ii) of the first sentence of this paragraph shall occur automatically upon
approval of this Stipulation by the Bankruptcy Court. The assumption of a
Lease shall be deemed to constitute an assumption by NYA of the Operative
Agreements or Operative Documents. Simultaneously with such assumption of a
Lease all of NYA's rights, title, interest and obligations under such Lease and
hereunder with respect to such Lease shall, without further actions, consent or
approval, be assigned to and assumed by Continental. Effective immediately
upon such assignment and assumption, (a) the term of such Lease shall be
extended to expire on December 31, 1996 (subject to the further options
described in Section 21 of the Leases), (b) NYA shall be released from all of
its obligations under such Lease, and (c) the Guarantee relating to such Lease
shall be terminated and Holdings shall be released from all its obligations
thereunder. After such assignment and assumption, Continental shall not reject
the Leases pursuant to Section 365(a) of the Bankruptcy Code or
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otherwise except in connection with a winding up of the business of Continental
or a Fundamental Business Restructuring (as each is defined in paragraph 22) as
described in paragraph 21 and 23. The Lessor acknowledges and agrees that the
terms and conditions stated herein constitute compliance with the provisions of
Section 365(b)(1) in connection with the assumption of the Leases. Effective
upon the assignment to and assumption by Continental described above with
respect to a Lease, all references herein to NYA shall be deemed to mean
Continental with respect to such Lease. Each Lessor Party hereby consents to
the assumption of the Lease at the times and on the terms set forth in this
Stipulation and agrees that no further payments need be made in connection with
such assumption under the terms of Section 365 of the Bankruptcy Code other
than those explicitly set forth in this Stipulation.
21. Subject to paragraph 22 hereof, effective upon
assumption of a Lease pursuant to paragraph 20, the Lessor shall be deemed to
have an allowed administrative expense claim, with the priority provided by
Sections 503(b)(1)(A) and 507(a)(1) of the Bankruptcy Code, for any amounts not
paid when due by Continental under such Lease, the related Note or hereunder
with respect to such Lease including any amounts payable as a result of a
breach thereunder or hereunder (collectively, "Lease Claims"). Any Lease Claim
for amounts of basic rent and supplemental rent accrued and due and payable by
Continental under a Lease or related Operative Agreements or Operative
Documents during the period ending on the date on which all of
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the equipment subject to such Lease is made available for repossession by the
Lessor upon at least 3 business days' prior written notice from Continental of
such availability, at a location in the continental United States to be
specified in such notice (an "Availability Date"), shall be payable currently
so long as Continental is then generally paying when due administrative expense
claims which have the same or a lower priority dispute (except that amounts
payable only as a result of an acceleration shall be payable currently only if
such administrative expense claims other than wages, salaries or commissions
for services rendered within the meaning of Section 503(b)(1)(A) of the
Bankruptcy Code are generally being paid when due) and, notwithstanding any
other provision hereof, Lessor shall have all rights under Section 503(a) of
the Bankruptcy Code to demand payment of such claims and any other claims
hereby granted a priority under Section 507(a)(1) or 364(c) of the Bankruptcy
Code.
22. (a) Notwithstanding paragraph 21 and except as to
claims expressly granted a higher priority herein, in the case of any breach
attributable to the failure of Continental to perform an obligation under a
Lease arising from or in connection with a winding up of the business of
Continental (as hereinafter defined) or a Fundamental Business Restructuring
(as hereinafter defined), any claim arising therefrom (a "Liquidation Claim",
it being understood that Liquidation Claims shall not include any claims
excluded pursuant to subparagraph (b) of this paragraph 22), shall be
determined, and shall be allowed under
22
23
Section 502(a), (b) or (c) of the Bankruptcy Code or disallowed under Sections
502(d) or (e) of the Bankruptcy Code, as if such claim had arisen before the
date of the filing of the petition by Continental, including, without
limitation: (x) any claim for damages with respect to basic rent payments not
yet accrued as of the Availability Date, including any liquidated damages in
lieu thereof contemplated by the applicable Lease, and (y) any claim for
damages attributable to the failure of the equipment to satisfy return
conditions specified in the Lease (other than any such failure which does not
constitute a Liquidation Claim or is excluded from the foregoing limitation on
priority as provided elsewhere herein) or the failure of the applicable Debtor
to provide notice of return as specified in the Lease; provided, however, that
the limitation on administrative expense priority described above shall not
apply with respect to:
(i) any Lease Claim described in subparagraph
(b) below as being expressly not included as a Liquidation
Claim,
(ii) any Liquidation Claim arising under a Lease
in connection with a Fundamental Business Restructuring unless
all Similar Aircraft (as defined below) other than Assumed
Aircraft (as defined below), if any, have been permanently
taken out of service by Continental and the applicable
Fundamental Business Restructuring is or becomes a Permanent
Downsizing (as hereinafter defined),
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24
(iii) any Lease Claim for an amount payable as a
result of the failure of any airframe or engine to have the
specified minimum hours or cycles remaining until the next
scheduled heavy maintenance visit or shop overhaul, or
(iv) any direct, but not consequential claim for
a breach of the undertakings contained in subparagraph (c) of
this Paragraph 22,
all of which claims enumerated in (i) through (iv) above having the priority
provided by Sections 503(b)(1)(A) and 507(a)(1) of the Bankruptcy Code (or such
higher priority specifically granted pursuant to this Stipulation) and shall be
payable currently so long as Continental is then generally paying when due like
administrative expense claims and, notwithstanding any other provision hereof,
Lessor shall have all rights to demand payment of such claims pursuant to
Section 503(a) of the Bankruptcy Code or otherwise. The parties hereto
expressly waive any right to treatment of any Liquidation Claim with a priority
superior to that provided herein and agree that in the event an allowed
Liquidation Claim is granted such a superior priority, the assumption of the
Lease related to such Liquidation Claim shall be deemed void ab initio;
provided, however, that the foregoing shall not affect the priority of (i) the
indebtedness involved with the Deferred Amounts, the FAA Modification Advances
and the New Image Modification Advances; and (ii) claims excluded from the
definition of Liquidation Claim set forth in subparagraph (b) below.
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25
(b) It is expressly agreed that Liquidation
Claims shall not include (i) any Lease Claim for amounts of basic rent and
supplemental rent accrued and due and payable by Continental under a Lease or
related Operative Agreements or Operative Documents arising during the period
ending on the Availability Date for equipment subject to such Lease and (ii)
any Lease Claims directly resulting from Continental's breach of its covenants
contained in a Lease with respect to the operation, use, maintenance and
possession of equipment subject to such Lease during the period ending on the
Availability Date for such equipment including, without limitation, any breach
by Continental of any covenant with respect to (x) compliance with
Airworthiness Directives required to be performed during the period ending on
the Availability Date or (y) maintenance of such equipment in accordance with
an FAA-approved maintenance program during the period ending on the
Availability Date (including performance of inspections, part replacement and
overhauls required under such program) regardless of whether any such breach is
discovered before or after the Availability Date.
(c) With respect to the return of equipment
subject to a Lease in connection with a winding up of the business of
Continental or a Fundamental Business Restructuring, Continental agrees (i) to
return at no charge to the Lessor within thirty days following the return of
such equipment (or such longer period as may be provided in such Lease), all
records, logs and manuals required under such Lease to be returned with such
aircraft and (ii) except with respect to any
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26
engine subject to a Lease which at the time of return is unserviceable or
disassembled for maintenance purposes (which engine shall be made available in
its then-current condition), to return such aircraft with the engines subject
to such Lease (or substitute engines permitted under the terms of such Lease)
installed on such aircraft.
23. For the purpose of this Stipulation and Order: (i)
the "winding up of the business of Continental" shall mean any act by
Continental or one of its affiliates, a trustee or examiner which constitutes
(1) the publicly announced cessation of all or substantially all scheduled
flight operations by Continental and its affiliates as debtors or as debtors in
possession (a "Cessation") followed ultimately by an actual Cessation, or (2) a
Cessation, and which in either case is without the intention to resume such
operations; (ii) "Fundamental Business Restructuring" shall mean, with respect
to the breach or rejection of a Lease giving rise to a Liquidation Claim, a
reduction, prior to adoption of or in implementation of a downsizing set forth
in a non-liquidating plan of reorganization, in the scheduled flight operations
of Continental and its affiliates, as measured by weekly available seat miles
("ASM's") determined using a consistently applied and generally recognized
methodology, of 35% from the week commencing on December 2, 1990, and ending on
December 8, 1990, and at least 10% within ninety (90) days before or after the
date of such breach or rejection; provided, however, that it Continental or one
of its affiliates transfers flight operations to a third
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27
party but retains effective control, through any agreement, contractual or
otherwise, to select the equipment to be used by such third party in such
operations, the ASM's of such flight operations shall be included in the
operations of Continental and its affiliates for purposes of this definition;
(iii) "Similar Aircraft" shall mean with respect to an aircraft as to which a
Liquidation Claim is asserted; all aircraft, if any: (a) which were in
Continental's or NYA's fleet on the Petition Date and at any time from the date
hereof to the date of the Fundamental Business Restructuring; (b) which are of
the same make, model, series and engine type as such aircraft as to which a
Liquidation Claim is asserted; and (c) which were manufactured within five
years of the date of manufacture of such aircraft as to which a Liquidation
Claim is asserted; (iv) "Assumed Aircraft" shall mean any Similar Aircraft
subject to a lease (treating as a lease any agreement originally denominated as
such without regard to the outcome of the Characterization Issue in respect of
the particular transaction) which, as of the date of a Fundamental Business
Restructuring, shall have been assumed by the applicable Debtor under Section
365 of the Bankruptcy Code pursuant to this Stipulation or to any other
agreement between a Debtor and the lessor thereunder which provide, among other
things, for a deferral of periodic payments and financing of modifications to
such Similar Aircraft; and (v) a Fundamental Business Restructuring resulting
in tho breach or rejection of a Lease shall be deemed a "Permanent Downsizing"
if (A) as of the end of any of the twelve full calendar months immediately
following such
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28
breach or rejection, the average monthly ASM's of Continental and its
affiliates for the preceding 12 calendar months is at least 35% less than the
average monthly ASM's of Continental and its affiliates in 1990 and (B) as of
the end of any one of the three calendar months immediately following such
breach or rejection, the monthly ASM's of Continental and its affiliates is at
least 20% less than the average monthly ASM's of Continental and its affiliates
for the 12 calendar months ended on the third full calendar month prior to such
rejection.
24. Effective upon assumption of a Lease pursuant to
paragraph 20 hereof, the applicable Debtor may reject a Lease pursuant to
Section 365(a) of the Bankruptcy Code in connection with a Fundamental Business
Restructuring only if all Similar Aircraft which are not Assumed Aircraft have
been disposed of by Continental and the leases with respect to all leased
Similar Aircraft which are not Assumed Aircraft shall have been rejected and
the affected equipment shall have been taken out of service and made available
to the applicable lessor for repossession. If the leases or Leases with
respect to one or more Assumed Aircraft of any category of leased Similar
Aircraft are to be rejected in connection with a Fundamental Business
Restructuring, the determination and allowance of Liquidation Claims with
respect to the affected Leases described in paragraph 21B shall apply only if
all such leases or Leases are rejected or the particular leases or Leases to be
rejected are selected at random from all such Assumed Aircraft in such
category. In addition, in connection with any such rejection Continental shall
pay to the
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29
applicable Lessor on or before the Availability Date, any accrued and unpaid
amounts due in current rent under the applicable Lease, excluding supplemental
rent, Deferred Amounts, FAA Modification Advances and New Image Modification
Advances and without giving effect to any acceleration thereof attributable to
such rejection.
25. The applicable Debtor shall perform its obligations
under the Leases (as amended pursuant hereto), other than obligations of the
sort described Section 365(b)(2) of the Bankruptcy Code. No Lessor Party shall
have a right to bring an action to seek return of any of the aircraft or
related equipment covered by a Lease unless Continental shall (i) breach its
obligation to pay any amount due under such Lease, as modified hereby, any
related Note or hereunder with respect to such Lease and such breach shall
remain uncured beyond any applicable cure period provided in the applicable
document, it being agreed that the payment obligations of Continental hereunder
shall be entitled to cure periods provided for basic rent payments under the
applicable Leases, except that the payment obligations under paragraph 28
hereof shall be entitled to cure periods provided for supplemental rent
payments under the applicable Leases (but interest on overdue amounts shall be
payable to the extent provided in such Lease and Lessor Parties' or any Note
holder's claim therefor shall be an allowed administrative expense claim) or
(ii) breach any other material provision of the applicable Lease (other than
provisions of the sort described in Section 365(b)(2) of the Bankruptcy Code)
and such breach shall
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30
remain uncured beyond any applicable cure period provided in the Lease. Upon
approval of this stipulation by the Bankruptcy Court, the automatic stay of
Section 362 of the Bankruptcy Code is modified to the extent necessary to
permit the Lessor Parties to exercise their rights hereunder, under the Notes
and under the Lease (as modified hereby) and, accordingly, any such right to
repossess a aircraft subject to a Lease in compliance with the terms thereof
following an Event of Default thereunder shall not be affected by such
automatic stay.
26. Notwithstanding Section 1129(a)(9)(A) or any other
provision of the Bankruptcy Code, in connection with the confirmation of a
plan, the Debtors shall not be obligated to pay cash for claims hereunder
granted a priority under Section 507(a)(1) or 364(c) to the extent such claims
are not then due and payable in accordance with the terms hereof (including
period of repayment and acceleration provisions), and the Lessor Parties
consent to the treatment in any plan of reorganization of the Debtors proposed
by any entity to payment of amounts in respect of Total Deferred Amounts, FAA
Modification Advances and New Image Modification Advances in accordance with
the terms hereof (including period of repayment and acceleration provisions).
27. To implement the foregoing, Continental and the
Lessor Parties shall take, among others, the following actions upon approval of
this Stipulation by the Bankruptcy Court and expiration of the period allowed
to appeal such approval (and provided no such appeal or a stay of the order of
such approval is pending): (i) the Lessor Parties shall promptly withdraw
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31
their participation in all pending motions in respect of the Leases including
all motions seeking relief under Sections 362, 363, 365 and/or 1110 of the
Bankruptcy Code and shall refrain from filing any motion under the Bankruptcy
Code for any relief whatsoever related to any Lease, the Operative Agreements
or the Operative Documents for so long as Continental complies with such Lease
(as amended hereby), the Operative Documents and Operative Agreements, this
Stipulation and the Note relating to such Lease, provided that if an appeal has
been filed, the Lessor Parties shall continue any such pending motion until
such appeal is resolved so long as the Bankruptcy Court's approval hereof has
been stayed; (ii) the Lessor Parties shall withdraw any appeal, or shall
withdraw from participation in any appeal, of the Bankruptcy Court's January
30, 1991 ruling concerning the non-application of Section 1110 to Leases that
do not cause the acquisition of new equipment (except that the Lessor Parties
may participate in any response to any petition for certiorari or brief filed
by Continental in the United States Supreme Court in connection with the
reversal of such ruling); (iii) the Lessors shall not bring a motion seeking
1110 status for any Lease or shall dismiss any such motion already brought;
(iv) Continental shall withdraw any pleadings seeking to recharacterize any
Lease as other than a "true lease" provided that if an appeal has been filed
Continental agrees to continue any such recharacterization motion until such
appeal is resolved so long as the Bankruptcy Court's approval hereof have not
been stayed; and (v) Continental shall promptly request and diligently pursue
obtaining an order
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32
of the Bankruptcy Court approving this Stipulation and, in that connection,
shall give proper notice of and conduct a hearing under Section 364(b) and (c)
of the Bankruptcy Code and Bankruptcy Rules 4001(c) and 9019 (with a request
under clause (2) of Bankruptcy Rule 4001(c)(2) to hold such hearing or a
preliminary hearing on July 19, 1991, and to seek authority to obtain credit
necessary to avoid immediate and irreparable harm to the estate) with respect
hereto, request that such hearing be expedited and held on July 19, 1991 and in
good faith oppose any objections hereto raised by the Official Committee of
Unsecured Creditors of Continental Airlines, Inc., et al. (the "Committee") or
any other party. Continental agrees to treat the Leases as "true leases,"
including, without limitation, in any plan of reorganization or liquidation
filed by it under its pending bankruptcy proceedings and to oppose in good
faith any contrary characterization, in any such plan filed by another party to
such bankruptcy proceedings or otherwise.
28. Within a reasonable period of time following the
presentation to the appropriate Debtors and the Committee of an invoice
adequately detailing the fees requested, and notwithstanding the provisions of
paragraph 11 above, Continental shall pay reasonable out-of-pocket legal fees
and expenses incurred by the Lessor Parties on or after the Petition Date in
connection with the Chapter 11 proceedings with respect to the leases and the
negotiation, execution and approval of this Stipulation. If the parties cannot
agree as to the reasonable amount of such fees, costs and expenses requested
within 60 days
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33
of receipt of the complete invoice, or if the Committee objects to the
reasonableness of such fees and files a timely written objection within 60 days
of receipt of the complete invoice, then the matter shall be submitted promptly
to the Bankruptcy Court for resolution, and Continental shall pay the amount
ordered by final order of the Court.
29. During the pendency of the Debtors' proceedings under
the United States Bankruptcy Code, no Aircraft shall be re-registered in a
jurisdiction other than the United States of America, unless the prior written
consent of Lessor shall have first been obtained, and thereafter, only as
permitted by the applicable leases.
30. If on or before the earlier of December 31, 1992 or
the date of confirmation of a plan of reorganization of Continental,
Continental, with the approval of the Bankruptcy Court, enters into an
agreement (other than an agreement embodied in a non-liquidating plan of
reorganization) with any lessor (i) with respect to aircraft and engines of
comparable model, series, engine type and age as the aircraft which are the
subject of the Leases; (ii) with respect to one or more pre-petition leases
covering such comparable equipment; and (iii) which provides overall benefits
materially more favorable to the lessor(s) under such lease(s) than the overall
benefits set forth herein, then the agreement contained herein with respect to
such aircraft shall be modified in a mutually acceptable manner to provide the
Lessors with treatment which, when viewed in its entirety (including all
benefits and burdens), is not materially less
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34
favorable to the Lessors than such agreement with such other lessor(s);
provided, however, however, that in all events, regardless, inter alia, of the
operation of this paragraph, force of law or otherwise, the Lessors' rights and
priority in connection with a Liquidation Claim shall be as set forth in
paragraph 16B, unless the Committee consents to the transaction forming the
basis for Lessors' claim for better treatment pursuant to this paragraph;
provided, further, however, that if an agreement or stipulation between
Continental and any other pre-petition lessor of aircraft equipment includes a
different definition of "Fundamental Business Restructuring" or "Permanent
Downsizing" (including terms intended to describe comparable situations), each
Lessor shall have the choice to adopt such different definitions in lieu of the
applicable definitions set forth herein.
31. The parties hereto may execute documentation
reasonably satisfactory to them and to the Committee to amend the applicable
Leases to conform with the forms of this Stipulation but the execution of such
documentation shall not be a precondition to the parties' respective
obligations hereunder.
32. The Beneficiaries agree, jointly and severally, to
provide funds to Lessor at such times and in such amounts as to enable Lessor
to pay the Modification Advances as specified in this Stipulation and Order.
In this regard, the Beneficiaries acknowledge that the Beneficiaries are the
Lessor's only source of funds to pay such Modification Advances. In the event
Lessor fails to pay any Modification Advance as required hereunder, NYA
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35
shall be entitled to offset payments of Basic Rent to the extent of such
Modification Advance.
33. This Stipulation shall not be of any force or effect
until approved by order of the Bankruptcy Court. Until so approved by the
Bankruptcy Court, (i) references in this Stipulation to "Lease", "Lessors",
"rentals" or words or phrases of similar import are for convenience only and
shall not constitute an admission by Continental that any alleged lease
agreement in fact constitutes a true lease or is otherwise entitled to the
protection of Sections 365 or 1110 of the Bankruptcy Code or any other
Bankruptcy Code Section, (ii) the Revised Rental Rates shall not constitute an
admission by any party that such rates constitute Fair Market Lease Rates under
the Leases and (iii) this Stipulation and any document related hereto shall not
be cited to any court for such purpose. Without limiting the generality of the
foregoing, no statement, undertaking or characterization herein shall be deemed
an admission by any party of any fact or legal conclusion for any purpose and
shall not be cited to any court by any party against any other party as
evidencing a waiver or an admission against interest or for any similar
purpose.
34. Following approval of this Stipulation by the
Bankruptcy Court, this Stipulation shall be binding upon and enforceable
against the parties hereto, their successors and assigns and in the case of
Continental, any and all of the affiliated debtors of Continental (including
any substantively consolidated entity of which Continental may be a part), and
any
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36
trustee appointed in Continental's Chapter 11 proceedings and any trustee
appointed in the event such proceedings are converted to Chapter 7 proceedings.
35. This Stipulation and Order may be executed in one or
more counterparts, including facsimile transmittals, each of which shall be
deemed an original and all of which, when taken together, shall constitute one
and the same document and any of the parties hereto may execute this
Stipulation and Order by signing any such counterpart. The Beneficiaries
hereby authorize, by their execution of this Stipulation, the Lessor to execute
this Stipulation and this Stipulation and Order maybe be filed with the
Bankruptcy Court using facsimile transmitted executions.
STIPULATED AND AGREED:
Dated: July 3, 1991 /s/ Laura Davis Jones
-------------------------------------
Attorney for Continental Airlines,
Inc., Debtor and Debtor in Possession
Dated: July 3, 1991 /s/ Laura Davis Jones
-------------------------------------
Attorney for Continental Airlines
Holdings, Inc., Debtor and Debtor
in Possession
Dated: July 3, 1991 /s/ Laura Davis Jones
-------------------------------------
Attorney for New York Airlines,
Inc., Debtor and Debtor in Possession
Dated: July 3, 1991 /s/ [signature]
-------------------------------------
Attorney for United States
Airlease, Inc.
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Dated: July 3, 1991 /s/ [signature]
---------------------------------
Attorney for Airlease Ltd.
Dated: July 3, 1991 /s/ [signature]
---------------------------------
Attorney for PS Group, Inc.
Dated: July 3, 1991 /s/ [signature]
---------------------------------
Attorney for Trust Company for
USL, Inc., as trustee
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The Official Committee of Unsecured Creditors hereby confirms that it has no
objection to the foregoing Stipulation or to the holding of a hearing with
respect thereto as soon as the parties may be heard.
Dated: July 3, 1991 /s/ [signature]
--------------------------------------
Attorneys for the Official
Committee of Unsecured Creditors
SO ORDERED:
Dated: July 3, 1991
--------------------------------------
United States Bankruptcy Judge
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EXHIBIT A
THIS NOTE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MUST BE HELD
INDEFINITELY UNLESS SO REGISTERED OR TRANSFERRED
IN A TRANSACTION EXEMPT FROM REGISTRATION
[City, State] $*/
_____________________, Original Principal Amount
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned, CONTINENTAL AIRLINES,
INC., a Delaware corporation [and debtor-in-possession] ("Borrower"), hereby
promises to pay to [NAME OF APPLICABLE LESSOR], a [insert applicable
jurisdiction] corporation ("Holder"), or its assigns, in lawful money of the
United States of America, the principal sum of [INSERT APPLICABLE "TOTAL
DEFERRED AMOUNT" DUE UNDER PARAGRAPH 10 OF THE STIPULATION
($_______________.__)] (the "Principal"), together with interest at the rate of
twelve percent (12%) per annum calculated on the basis of a 360 day year
consisting of twelve 30-day months (the "Interest Rate"), which interest shall
accrue on the outstanding Principal from and including April 1, 1992 to but
excluding the date on which the Principal and all accrued interest are paid in
full. The Principal of, and accrued interest on, this Note shall be payable in
accordance with the provisions of Section 2 hereof. The entire unpaid
Principal of this Note, together with accrued and unpaid interest thereon, it
any, shall be finally due and payable on the Maturity Date (as hereinafter
defined). All amounts of Principal and, to the extent permitted by applicable
law, interest which are not paid when due in accordance with the provisions of
Section 2 hereof shall bear interest from the date such Principal and interest
payment was due until paid at the Default Rate (hereinafter defined)
(calculated on the basis of a 360 day year consisting of twelve 30-day months).
Section 1. Certain Definitions. As used herein, the
following terms have the following meanings:
1.1 "Default" means the occurrence of one or mare o the
following events:
__________________________________
*/ Interest applicable "Total Deferred Amount" due under Paragraph 10 of the
Stipulation.
1
40
(a) The failure of Borrower to pay any amounts of
Principal or interest thereon due on this Note within ten (10)
Business Days (as defined in the Lease) of when the same become due
and payable in accordance with the terms hereof; or
(b) The failure of Borrower to perform, observe,
and comply with any covenant, agreement, or condition (other than the
covenant to pay amounts of Principal or interest thereon due under
this Note) contained in this Note including, without limitation, those
covenants and agreements set forth in Section 4 hereof, and the
continuation of such a failure for a period of forty-five (45) days
following written notice to Borrower from the Holder of the
continuation of such failure; or
(c) The occurrence of an "Event of Default" as such term
is defined in the Lease, subject to the provisions therein concerning
notice and/or opportunity to cure such Event of Default, or a default
under the Stipulation (after giving effect to the grace periods
provided for in paragraph 22 thereof) insofar as it relates to the
Lease or the equipment subject thereto.
1.2 "Default Rate" means the rate per annum equal to the
lesser of (a) fourteen percent (14%), or (b) the highest rate then permitted by
law for any period during which the Principal shall be overdue; provided,
however, that if no such highest rate exists, then the rate specified in clause
(a) preceding shall apply.
1.3 "Lease" means [insert applicable Lease definition.]
1.4 "Maturity Date" means February 1, 1993.
1.5 "Stipulation" mean [insert name of Stipulation].
Section 2. Payments of Principal and Interest.
(a) Payment of Principal and the interest accrued at the
Interest Rate on the unamortized portion of the Principal shall be made in
twelve (12) equal monthly installments of Principal and interest commencing on
March 1, 1992 and thereafter on the first Business Day (as defined in the
Lease) of each of the next eleven (11) months.
(b) Notwithstanding the foregoing, at the Maturity Date,
the entire unpaid balance of Principal and all accrued and unpaid interest
shall be finally due and payable.
Section 3. Prepayments. Borrower shall be entitled to
prepay the unpaid Principal, at any time and from time to time, in whole or in
part, without premium or penalty, but only
2
41
if all accrued and unpaid interest on this Note is paid to the date of such
prepayment.
Section 4. Events of Default and Remedies. The entire
unpaid Principal, and all accrued interest, if any, on this Note shall
immediately become due and payable at the option of the Holder hereof upon the
occurrence of a Default. In the event a Default shall have occurred, the
holder of this Note may proceed to protect and enforce its rights either by
suit in equity and/or by action at law, or by other appropriate proceedings,
whether for the specific performance of any covenant or agreement contained in
this Note, or in aid of the exercise of any power or right granted by this Note
or to enforce any other legal or equitable right of the holder of this Note,
including any rights accorded Holder under the Stipulation.
Section 5. No Partnership or Agency Intended; Indemnity.
(a) Nothing contained herein is intended, or
shall in any way be construed, so as to create any form of partnership
or agency relationship between Borrower and Holder. The parties
hereby expressly disclaim any intention of any kind to create any such
partnership or agency relationship between themselves hereby.
Accordingly, in no event shall Holder be liable for any of the debts,
obligations, or liabilities of Borrower as a result of the execution
of this Note.
(b) Holder shall have the benefit of the same
indemnities as Lessor under the Lease but subject to the same
conditions and exceptions.
Section 6. Cumulative Rights. No delay on the part of
the holder of this Note in the exercise of any power or right under this Note
shall operate as a waiver thereof, nor shall a single or partial exercise of
any such power or right. The remedies provided to Holder herein are cumulative
of any other rights and remedies available at law or in equity and enforcement
by the holder of this Note shall not constitute any election by it of remedies
so as to preclude the exercise of any other remedy available to it.
Section 7. Waiver. Borrower and each and other party,
if any, ever liable for the payment of any sue of money payable or this Note,
jointly and severally waive demand, presentment, protest, notice of nonpayment,
dishonor and notice of dishonor, notice of intention to accelerate, notice of
protest, notice of acceleration and any and all lack of diligence or any delay
in collection or the filing of suit hereon which may occur, and agree that
their liability on this Note shall not be affected by any renewal or extension
in the time of payment hereof or by any indulgences, and hereby consent to any
and all
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42
renewals, extensions or indulgences, regardless of the number of such renewals,
extensions or indulgences.
Section 8. Attorneys' Fees and Costs. If a Default
shall occur and thereafter this Note is placed in the hands of an attorney for
collection, or if this Note is collected in whole or in part through legal
proceedings of any nature, then and in any such case, Borrower promises to pay
all reasonable costs of collection, including but not limited to reasonable
attorneys' fees incurred by the holder hereof on account of such collection,
whether or not suit is filed.
Section 9. Notices. Any notice or other communication
permitted or required to be given hereunder by one party to the other shall be
given in accordance with the Lease. If the Holder is not a party to the Lease,
the Holder agrees to provide Borrower all notice information reasonably
requested by Borrower.
SECTION 10. GOVERNING LAW. THE LAWS OF THE STATE OF NEW
YORK SHALL GOVERN THE CONSTRUCTION, VALIDITY, ENFORCEMENT, AND INTERPRETATION
OF THIS NOTE.
Section 11. Headings; Construction. The headings of the
sections of this Note are inserted for convenience only and shall not be deemed
to constitute a part hereof, words used herein of any gender shall be construed
to include any other gender where appropriate, and words used herein which are
either singular or plural shall be construed to include the other where
appropriate.
Section 12. Successors and Assigns. All of the
covenants, stipulations, promises, and agreements in this Note contained by or
on behalf of Borrower shall bind its successors and assigns, whether so
expressed or not; provided, however, that Borrower may not, without the prior
consent of Holder, assign any rights, duties, or obligations under this Note
except in connection with an assignment of Borrower's rights, obligations and
duties under the Lease to the extent permitted thereunder and under the
Stipulation. All rights, duties and privileges of Holder under this Note shall
insure to the benefit of any successors and assigns, whether in whole or in
part, of Holder.
SECTION 13. Payments. Unless otherwise directed in
writing by Holder, Borrower shall make all payments or prepayments on this Note
in accordance with the provisions of Section _ of the Lease. All payments
received in respect of this Note shall be applied first, to discharge any
amounts owing under Section 8 hereof; second, to discharge any obligations
owing under Section 5(b) hereof; third, to the payment of accrued and unpaid
interest; fourth, to the payment of any Principal due and owing; and fifth, to
the prepayment of Principal in the inverse order of maturity in accordance with
Section 3 hereof.
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IN WITNESS WHEREOF, the undersigned has executed this Note on
the day and year first above written.
CONTINENTAL AIRLINES, INC.
[Debtor-in-Possession]
By:
------------------------
Name:
Title:
[Promissory Note]
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EXHIBIT B
MODIFICATIONS
Modifications applicable to each aircraft can summarized in the
following categories:
Aging Any act associated with Continental's FAA mandated Aging
Aircraft Program which support continuing structural
airworthiness of aircraft as they age beyond their original
design goal by specifying a minimum acceptable level of
structural maintenance. This program will include implementation
of airworthiness directives, service bulletins, and corrosion
control methods.
Avionics Addition of systems and/or improvements to the aircraft not
affiliated with the Aging Aircraft program, which would include
TCAS (Traffic-alert Collision Avoidance System), Windshear
detection systems, ACARS (Aircraft Communication, Addressing and
Reporting System), Teleflex Cargo Landing System, Fire
Containment Systems (specifically insulation of cargo holds).
New Image/ Transformation of aircraft interiors and exteriors to
Identity Continental's New Image/Identity Program. Exterior Modifications
consist of painting the aircraft. Interior Modifications include
1) carpeting of floors, 2) repainting (or replacement of
decorative material) of sidewalls, doors, bins, seat shrouds,
toilet shrouds and surfaces (walls, bulkheads, dividers,
ceilings) of cabin, galleys and lavatories, 3) leather or cloth
exteriors and cushions for seats, 4) replacement of interior
lights and aisle path lighting, 5) placards (signage), 6)
interior upgrades (hot galleys, closets, required seat
replacements and overhead bins), and 7) other miscellaneous
improvements (seat track covers, window shades, and curtains).
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