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EXHIBIT 4.23
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ESCROW AND PAYING AGENT AGREEMENT
(Class A)
Dated as of March 21, 1997
among
FIRST SECURITY BANK, NATIONAL ASSOCIATION
as Escrow Agent
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
CHASE SECURITIES INC.
and
XXXXXXX, XXXXX & CO.
as Initial Purchasers
WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Pass Through Trustee
for and on behalf of
Continental Airlines Pass Through Trust 1997-1A-O
as Pass Through Trustee
and
WILMINGTON TRUST COMPANY
as Paying Agent
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TABLE OF CONTENTS
Page
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SECTION 1. Escrow Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.01. Appointment of Escrow Agent . . . . . . . . . . . . . . . . . . . 2
Section 1.02. Instruction; Etc. . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.03. Initial Escrow Amount; Issuance of Escrow Receipts . . . . . . . 4
Section 1.04. Payments to Receiptholders . . . . . . . . . . . . . . . . . . . 5
Section 1.05. Mutilated, Destroyed, Lost or Stolen Escrow Receipt . . . . . . . 5
Section 1.06. Additional Escrow Amounts . . . . . . . . . . . . . . . . . . . . 6
Section 1.07. Resignation or Removal of Escrow Agent . . . . . . . . . . . . . 6
Section 1.08. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.09. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2. Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.01. Appointment of Paying Agent . . . . . . . . . . . . . . . . . . . 7
Section 2.02. Establishment of Paying Agent Account . . . . . . . . . . . . . . 8
Section 2.03. Payments from Paying Agent Account . . . . . . . . . . . . . . . 8
Section 2.04. Withholding Taxes . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.05. Resignation or Removal of Paying Agent . . . . . . . . . . . . . 10
Section 2.06. Notice of Final Withdrawal . . . . . . . . . . . . . . . . . . . 11
SECTION 3. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4. Other Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5. Representations and Warranties of the Escrow Agent . . . . . . . . . . . 12
SECTION 6. Representations and Warranties of the Paying Agent . . . . . . . . . . . 14
SECTION 7. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 8. Amendment, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 9. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 10. Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 11. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 12. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 13. Waiver of Jury Trial Right . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 14. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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ESCROW AND PAYING AGENT AGREEMENT (Class A) dated as of March
21, 1997 (as amended, modified or supplemented from time to time, this
"Agreement") among FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national
banking association, as Escrow Agent (in such capacity, together with its
successors in such capacity, the "Escrow Agent"); CREDIT SUISSE FIRST BOSTON
CORPORATION, XXXXXX XXXXXXX & CO. INCORPORATED, CHASE SECURITIES INC. and
XXXXXXX, XXXXX & CO., as Initial Purchasers of the below referred to
Certificates (the "Initial Purchasers" and together with their respective
transferees and assigns as registered owners of the Certificates, the
"Investors") under the Certificate Purchase Agreement referred to below;
WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its individual
capacity except as otherwise expressly provided herein, but solely as trustee
(in such capacity, together with its successors in such capacity, the "Pass
Through Trustee") under the Pass Through Trust Agreement referred to below; and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as paying agent
hereunder (in such capacity, together with its successors in such capacity, the
"Paying Agent").
W I T N E S S E T H
WHEREAS, Continental Airlines, Inc. ("Continental") and the
Pass Through Trustee have entered into a Pass Through Trust Agreement, dated as
of March 21, 1997 (as amended, modified or supplemented from time to time in
accordance with the terms thereof, the "Pass Through Trust Agreement") relating
to Continental Airlines Pass Through Trust 1997-1A-O (the "Pass Through Trust")
pursuant to which the Continental Airlines Pass Through Trust, Series 1997-
1A-O Certificates referred to therein (the "Certificates") are being issued;
WHEREAS, Continental and the Initial Purchasers have entered
into a Certificate Purchase Agreement dated as of March 12, 1997 (as amended,
modified or supplemented from time to time in accordance with the terms
thereof, the "Certificate Purchase Agreement") pursuant to which the Pass
Through Trustee will issue and sell the Certificates to the Initial Purchasers;
WHEREAS, Continental, the Pass Through Trustee, certain other
pass through trustees and certain other persons concurrently herewith are
entering into the Note Purchase Agreement, dated as of the date hereof (the
"Note Purchase Agreement"), pursuant to which the Pass Through Trustee has
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agreed to acquire from time to time on or prior to the Delivery Period
Termination Date (as defined in the Note Purchase Agreement) equipment notes
(the "Equipment Notes") issued to finance the acquisition of aircraft by
Continental, as lessee or as owner, utilizing a portion of the proceeds from
the sale of the Certificates (the "Net Proceeds");
WHEREAS, the Initial Purchasers and the Pass Through Trustee
intend that the Net Proceeds be held in escrow by the Escrow Agent on behalf of
the Investors, subject to withdrawal upon request by the Pass Through Trustee
and satisfaction of the conditions set forth in the Note Purchase Agreement for
the purpose of purchasing Equipment Notes, and that pending such withdrawal the
Net Proceeds be deposited on behalf of the Escrow Agent with Credit Suisse
First Boston, a Swiss bank acting through its New York branch, as Depositary
(the "Depositary") under the Deposit Agreement, dated as of the date hereof
between the Depositary and the Escrow Agent relating to the Pass Through Trust
(as amended, modified or supplemented from time to time in accordance with the
terms thereof, the "Deposit Agreement") pursuant to which, among other things,
the Depositary will pay interest for distribution to the Investors and
establish accounts from which the Escrow Agent shall make withdrawals upon
request of and proper certification by the Pass Through Trustee;
WHEREAS, the Escrow Agent wishes to appoint the Paying Agent
to pay amounts required to be distributed to the Investors in accordance with
this Agreement; and
WHEREAS, capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in the Pass Through Trust Agreement.
NOW, THEREFORE, in consideration of the obligations contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. Escrow Agent.
Section 1.01. Appointment of Escrow Agent. Each of the
Initial Purchasers, for and on behalf of each of the Investors, hereby
irrevocably appoints, authorizes and directs the Escrow Agent to act as escrow
agent and fiduciary hereunder and under the Deposit Agreement for such specific
purposes and with such powers as are specifically delegated to the Escrow
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Agent by the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. Any and all money received and held by the
Escrow Agent under this Agreement or the Deposit Agreement shall be held in
escrow by the Escrow Agent in accordance with the terms of this Agreement.
This Agreement is irrevocable and the Investors' rights with respect to any
monies received and held in escrow by the Escrow Agent under this Agreement or
the Deposit Agreement shall only be as provided under the terms and conditions
of this Agreement and the Deposit Agreement. The Escrow Agent (which term as
used in this sentence shall include reference to its affiliates and its own and
its affiliates' officers, directors, employees and agents): (a) shall have no
duties or responsibilities except those expressly set forth in this Agreement;
(b) shall not be responsible to the Pass Through Trustee or the Investors for
any recitals, statements, representations or warranties of any person other
then itself contained in this Agreement or the Deposit Agreement or for the
failure by the Pass Through Trustee, Investors or any other person or entity
(other than the Escrow Agent) to perform any of its obligations hereunder
(whether or not the Escrow Agent shall have any knowledge thereof); and (c)
shall not be responsible for any action taken or omitted to be taken by it
hereunder or provided for herein or in connection herewith, except for its own
willful misconduct or gross negligence (or simple negligence in connection with
the handling of funds).
Section 1.02. Instruction; Etc. The Initial Purchasers,
for and on behalf of each of the Investors, hereby irrevocably instruct the
Escrow Agent, and the Escrow Agent agrees, (a) to enter into the Deposit
Agreement, (b) to appoint the Paying Agent as provided in this Agreement, (c)
upon receipt at any time and from time to time prior to the Termination Date
(as defined below) of a certificate substantially in the form of Exhibit B
hereto (a "Withdrawal Certificate") executed by the Pass Through Trustee,
together with an attached Notice of Purchase Withdrawal in substantially the
form of Exhibit A to the Deposit Agreement duly completed by the Pass Through
Trustee (the "Applicable Notice of Purchase Withdrawal" and the withdrawal to
which it relates, a "Purchase Withdrawal"), immediately to execute the
Applicable Notice of Purchase Withdrawal as Escrow Agent and transmit it to the
Depositary by facsimile transmission in accordance with the Deposit Agreement;
provided that, upon the request of the Pass Through Trustee after such
transmission, the Escrow Agent shall cancel such Applicable Notice of Purchase
Withdrawal, and (d) if there are any undrawn Deposits (as defined
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in the Deposit Agreement) on the "Termination Date", which shall mean the
earlier of (i) July 1, 1998 and (ii) the day on which the Escrow Agent receives
notice from the Pass Through Trustee that the Pass Through Trustee's obligation
to purchase Equipment Notes under the Note Purchase Agreement has terminated,
to give notice to the Depositary (with a copy to the Paying Agent)
substantially in the form of Exhibit B to the Deposit Agreement requesting a
withdrawal of all of the remaining Deposits, together with accrued and unpaid
interest on such Deposits to the date of withdrawal, on the 35th day after the
date that such notice of withdrawal is given to the Depositary (or, if not a
Business Day, on the next succeeding Business Day) (a "Final Withdrawal"),
provided that if the day scheduled for the Final Withdrawal in accordance with
the foregoing is within 10 days before or after a Regular Distribution Date,
then the Escrow Agent shall request that such requested Final Withdrawal be
made on such Regular Distribution Date (the date of such requested withdrawal,
the "Final Withdrawal Date"). If for any reason the Escrow Agent shall have
failed to give the Final Withdrawal Notice to the Depositary on or before July
6, 1998, and there are unwithdrawn Deposits on such date, the Final Withdrawal
Date shall be deemed to be July 31, 1998.
Section 1.03. Initial Escrow Amount; Issuance of Escrow
Receipts. The Escrow Agent hereby directs the Initial Purchasers to, and the
Initial Purchasers hereby acknowledge that on the date hereof they shall,
irrevocably deliver to the Depositary on behalf of the Escrow Agent, an amount
in U.S. dollars ("Dollars") and immediately available funds equal to
$437,876,000 for deposit on behalf of the Escrow Agent with the Depositary in
accordance with Section 2.1 of the Deposit Agreement. The Initial Purchasers
hereby instruct the Escrow Agent, upon receipt of such sum from the Initial
Purchasers, to confirm such receipt by executing and delivering to the Pass
Through Trustee an Escrow Receipt in the form of Exhibit A hereto (an "Escrow
Receipt"), (a) to be affixed by the Pass Through Trustee to each Certificate
and (b) to evidence the same percentage interest (the "Escrow Interest") in the
Account Amounts as the Fractional Undivided Interest in the Pass Through Trust
evidenced by the Certificate to which it is to be affixed. The Escrow Agent
shall provide to the Pass Through Trustee for attachment to each Certificate
newly issued under and in accordance with the Pass Through Trust Agreement an
executed Escrow Receipt as the Pass Through Trustee may from time to time
request of the Escrow Agent. Each Escrow Receipt shall be
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registered by the Escrow Agent in a register (the "Register") maintained by the
Escrow Agent in the same name and same manner as the Certificate to which it is
attached and may not thereafter be detached from such Certificate to which it
is to be affixed prior to the distribution of the Final Withdrawal (the "Final
Distribution"). After the Final Distribution, no Escrow Receipts shall be
issued and the Pass Through Trustee shall request the return to the Escrow
Agent for cancellation of all outstanding Escrow Receipts.
Section 1.04. Payments to Receiptholders. All payments and
distributions made to holders of an Escrow Receipt (collectively
"Receiptholders") in respect of the Escrow Receipt shall be made only from
amounts deposited in the Paying Agent Account ("Account Amounts"). Each
Receiptholder, by its acceptance of an Escrow Receipt, agrees that (a) it will
look solely to the Account Amounts for any payment or distribution due to such
Receiptholder pursuant to the terms of the Escrow Receipt and this Agreement
and (b) it will have no recourse to Continental, the Pass Through Trustee, the
Paying Agent or the Escrow Agent, except as expressly provided herein or in the
Pass Through Trust Agreement. No Receiptholder shall have any right to vote or
in any manner otherwise control the operation and management of the Paying
Agent Account or the obligations of the parties hereto, nor shall anything set
forth herein, or contained in the terms of the Escrow Receipt, be construed so
as to constitute the Receiptholders from time to time as partners or members of
an association.
Section 1.05. Mutilated, Destroyed, Lost or Stolen Escrow
Receipt. If (a) any mutilated Escrow Receipt is surrendered to the Escrow
Agent or the Escrow Agent receives evidence to its satisfaction of the
destruction, loss or theft of any Escrow Receipt and (b)Ethere is delivered to
the Escrow Agent and the Pass Through Trustee such security, indemnity or bond,
as may be required by them to hold each of them harmless, then, absent notice
to the Escrow Agent or the Pass Through Trustee that such destroyed, lost or
stolen Escrow Receipt 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 Escrow Agent shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Escrow Receipt, a new Escrow Receipt or Escrow
Receipts and of like Escrow Interest and bearing a number not contemporaneously
outstanding.
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In connection with the issuance of any new Escrow Receipt
under this Section 1.05, the Escrow Agent 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
Pass Through Trustee and the Escrow Agent) connected therewith.
Any duplicative Escrow Receipt issued pursuant to this Section
1.05 shall constitute conclusive evidence of the appropriate Escrow Interest in
the Account Amounts, as if originally issued, whether or not the lost, stolen
or destroyed Escrow Receipt 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 Escrow
Receipts.
Section 1.06. Additional Escrow Amounts. On the date of
any Purchase Withdrawal, the Pass Through Trustee may re-deposit with the
Depositary some or all of the amounts so withdrawn in accordance with Section
2.4 of the Deposit Agreement.
Section 1.07. Resignation or Removal of Escrow Agent.
Subject to the appointment and acceptance of a successor Escrow Agent as
provided below, the Escrow Agent may resign at any time by giving 30 days'
prior written notice thereof to the Investors, but may not otherwise be removed
except for cause by the written consent of the Investors with respect to
Investors representing Escrow Interests aggregating not less than a majority in
interest in the Account Amounts (an "Action of Investors"). Upon any such
resignation or removal, the Investors, by an Action of Investors, shall have
the right to appoint a successor Escrow Agent. If no successor Escrow Agent
shall have been so appointed and shall have accepted such appointment within 30
days after the retiring Escrow Agent's giving of notice of resignation or the
removal of the retiring Escrow Agent, then the retiring Escrow Agent may
appoint a successor Escrow Agent, which shall be a bank which has an office in
the United States with a combined capital and surplus of at least $100,000,000.
Upon the acceptance of any appointment as Escrow Agent hereunder by a successor
Escrow Agent, such successor Escrow
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Agent shall enter into such documents as the Pass Through Trustee shall require
and shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Escrow Agent, and the retiring Escrow
Agent shall be discharged from its duties and obligations hereunder. No
resignation or removal of the Escrow Agent shall be effective unless a written
confirmation shall have been obtained from each of Xxxxx'x Investors Service,
Inc. and Standard & Poor's Rating Group, a division of XxXxxx-Xxxx Inc., that
the replacement of the Escrow Agent with the successor Escrow Agent will not
result in (a) a reduction of the rating for the Certificates below the then
current rating for the Certificates or (b) a withdrawal or suspension of the
rating of the Certificates.
Section 1.08. Persons Deemed Owners. Prior to due
presentment of a Certificate for registration of transfer, the Escrow Agent and
the Paying Agent may treat the Person in whose name any Escrow Receipt is
registered (as of the day of determination) as the owner of such Escrow Receipt
for the purpose of receiving distributions pursuant to this Agreement and for
all other purposes whatsoever, and none of the Escrow Agent or the Paying Agent
shall be affected by any notice to the contrary.
Section 1.09. Further Assurances. The Escrow Agent agrees
to take such actions, and execute such other documents, as may be reasonably
requested by the Pass Through Trustee in order to effectuate the purposes of
this Agreement and the performance by the Escrow Agent of its obligations
hereunder.
SECTION 2. Paying Agent.
Section 2.01. Appointment of Paying Agent. The Escrow
Agent hereby irrevocably appoints and authorizes the Paying Agent to act as its
paying agent hereunder, for the benefit of the Investors, for such specific
purposes and with such powers as are specifically delegated to the Paying Agent
by the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. Any and all money received and held by the
Paying Agent under this Agreement or the Deposit Agreement shall be held in the
Paying Agent Account (as defined below) for the benefit of the Investors. The
Paying Agent (which term as used in this sentence shall include reference to
its affiliates and its own and its affiliates' officers, directors, employees
and
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agents): (a) shall have no duties or responsibilities except those expressly
set forth in this Agreement, and shall not by reason of this Agreement be a
trustee for the Escrow Agent; (b) shall not be responsible to the Escrow Agent
for any recitals, statements, representations or warranties of any person other
then itself contained in this Agreement or for the failure by the Escrow Agent
or any other person or entity (other than the Paying Agent) to perform any of
its obligations hereunder (whether or not the Paying Agent shall have any
knowledge thereof); and (c) shall not be responsible for any action taken or
omitted to be taken by it hereunder or provided for herein or in connection
herewith, except for its own willful misconduct or gross negligence (or simple
negligence in connection with the handling of funds).
Section 2.02. Establishment of Paying Agent Account. The
Paying Agent shall establish a deposit account (the "Paying Agent Account") at
Wilmington Trust Company in the name of the Escrow Agent. It is expressly
understood by the parties hereto that the Paying Agent is acting as the paying
agent of the Escrow Agent hereunder and that no amounts on deposit in the
Paying Agent Account constitute part of the Trust Property.
Section 2.03. Payments from Paying Agent Account. The
Escrow Agent hereby irrevocably instructs the Paying Agent, and the Paying
Agent agrees to act, as follows:
(a) on each Interest Payment Date (as defined in
the Deposit Agreement) or as soon thereafter as the Paying Agent has confirmed
receipt in the Paying Agent Account from the Depositary of any amount in
respect of accrued interest on the Deposits, the Paying Agent shall distribute
out of the Paying Agent Account the entire amount deposited therein by the
Depositary. There shall be so distributed to each Receiptholder of record on
the 15th day (whether or not a Business Day) preceding such Interest Payment
Date by check mailed to such Receiptholder, at the address appearing in the
Register, such Receiptholder's pro rata share (based on the Escrow Interest in
the Account Amounts held by such Receiptholder) of the total amount of interest
deposited by the Depositary in the Paying Agent Account on such date, except
that, with respect to Escrow Receipts 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.
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(b) upon the confirmation by the Paying Agent of
receipt in the Paying Agent Account from the Depositary of any amount in
respect of the Final Withdrawal, the Paying Agent shall forthwith distribute
the entire amount of the Final Withdrawal deposited therein by the Depositary.
There shall be so distributed to each Receiptholder of record on the 15th day
(whether or not a Business Day) preceding the Final Withdrawal Date by check
mailed to such Receiptholder, at the address appearing in the Register, such
Receiptholder's pro rata share (based on the Escrow Interest in the Account
Amounts held by such Receiptholder) of the total amount in the Paying Agent
Account on account of such Final Withdrawal, except that, with respect to
Escrow Receipts 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) If any payment of interest or principal in
respect of the Final Withdrawal is not received by the Paying Agent within five
days of the applicable date when due, then it shall be distributed to
Receiptholders after actual receipt by the Paying Agent on the same basis as a
Special Payment is distributed under the Pass Through Trust Agreement.
(d) the Paying Agent shall include with any check
mailed pursuant to this Section any notice required to be distributed under the
Pass Through Trust Agreement that is furnished to the Paying Agent by the Pass
Through Trustee.
Section 2.04. Withholding Taxes. The Paying Agent shall
exclude and withhold from each distribution of accrued interest on the Deposits
and any amount in respect of the Final Withdrawal any and all withholding taxes
applicable thereto as required by law. In addition, the Paying Agent shall
remit or cause to be remitted such amounts as would be required by Section 1446
of the Internal Revenue Code of 1986, as amended, as if the agreements of the
Initial Purchasers set forth in this Agreement were characterized as a
partnership engaged in a U.S. trade or business for U.S. federal income tax
purposes and shall withhold or cause to be withheld such amounts from amounts
distributable to or for the benefit of Receiptholders or beneficial owners of
interests in Escrow Receipts that are not United States persons within the
meaning of section 7701(a)(30) of the Internal Revenue Code of 1986, as amended
("Non-U.S. Persons"). In this regard, the Paying Agent shall cause the
appropriate withholding agent to withhold with respect to such distributions in
the manner
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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 Exhibits C and D on or
before the date 10 days prior to the Record Date. The Paying Agent shall mail
such notice to the National Association of Securities Dealers no later than the
date 15 days prior to the Record Date. Investors that are not United States
Persons agree to furnish a taxpayer identification number ("TIN") to the Paying
Agent and the Paying Agent shall provide such TINs to the appropriate U.S.
withholding agent. The Paying Agent agrees to act as such withholding agent
(except to the extent contemplated above with respect to withholding amounts as
if the agreements of the Initial Purchasers as set forth in this Agreement were
characterized as a business 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 Deposits or the escrow amounts, to
withhold such amounts and timely pay the same to the appropriate authority in
the name of and on behalf of the Receiptholders, 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
Receiptholder appropriate documentation showing the payment thereof, together
with such additional documentary evidence as such Receiptholder may reasonably
request from time to time. The Paying Agent agrees to file any other
information reports as it may be required to file under United States law.
Each Receiptholder or beneficial owner of an interest in an Escrow Receipt that
is a Non-U.S. Person, by its acceptance of an Escrow Receipt or a beneficial
interest therein, agrees to indemnify and hold harmless the Escrow Agent and
the Paying Agent 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 Escrow Agent
or the Paying Agent, as the case may be.
Section 2.05. Resignation or Removal of Paying Agent.
Subject to the appointment and acceptance of a successor Paying Agent as
provided below, the Paying Agent may resign at any time by giving 30 days'
prior written notice thereof to the Escrow Agent, but may not otherwise be
removed except for cause by the Escrow Agent. Upon any such resignation or
removal, the Escrow Agent shall have the right to appoint a successor Paying
Agent. If no successor Paying Agent shall have been so appointed and
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shall have accepted such appointment within 30 days after the retiring Paying
Agent's giving of notice of resignation or the removal of the retiring Paying
Agent, then the retiring Paying Agent may appoint a successor Paying Agent,
which shall be a bank which has an office in the United States with a combined
capital and surplus of at least $100,000,000. Upon the acceptance of any
appointment as Paying Agent hereunder by a successor Paying Agent, such
successor Paying Agent shall enter into such documents as the Escrow Agent
shall require and shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Paying Agent, and the
retiring Paying Agent shall be discharged from its duties and obligations
hereunder.
Section 2.06. Notice of Final Withdrawal. Promptly after
receipt by the Paying Agent of notice that the Escrow Agent has requested a
Final Withdrawal or that a Final Withdrawal will be made, the Paying Agent
shall cause notice of the distribution of the Final Withdrawal to be mailed to
each of the Receiptholders at its address as it appears in the Register. Such
notice shall be mailed not less than 20 days prior to the Final Withdrawal
Date. Such notice shall set forth:
(i) the Final Withdrawal Date and the date for
determining Receiptholders of record who shall be
entitled to receive distributions in respect of the
Final Withdrawal,
(ii) the amount of the payment in respect of the Final
Withdrawal for each $1,000 face amount Certificate
(based on information provided by the Pass Through
Trustee) and the amount thereof constituting unused
Deposits and interest thereon, and
(iii) if the Final Withdrawal 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 (based on information provided by the
Pass Through Trustee).
Such mailing may include any notice required to be given to
Certificateholders in connection with such distribution pursuant to the Pass
Through Trust Agreement.
SECTION 3. Payments. If, notwithstanding the
instructions in Section 4 of the Deposit Agreement that all
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amounts payable to the Escrow Agent under the Deposit Agreement be paid by the
Depositary directly to the Paying Agent or the Pass Through Trustee (depending
on the circumstances), the Escrow Agent receives any payment thereunder, then
the Escrow Agent shall forthwith pay such amount in Dollars and in immediately
available funds by wire transfer to (a) in the case of a payment of accrued
interest on the Deposits or any Final Withdrawal, directly to the Paying Agent
Account and (b) in the case of any Purchase Withdrawal, directly to the Pass
Through Trustee or its designee as specified and in the manner provided in the
Applicable Notice of Purchase Withdrawal. The Escrow Agent hereby waives any
and all rights of set-off, combination of accounts, right of retention or
similar right (whether arising under applicable law, contract or otherwise) it
may have against amounts payable to the Paying Agent howsoever arising.
SECTION 4. Other Actions. The Escrow Agent shall take
such other actions under or in respect of the Deposit Agreement (including,
without limitation, the enforcement of the obligations of the Depositary
thereunder) as the Investors, by an Action of Investors, may from time to time
request.
SECTION 5. Representations and Warranties of the Escrow
Agent. The Escrow Agent represents and warrants to Continental, the Investors,
the Paying Agent and the Pass Through Trustee as follows:
(i) it is a national banking association duly organized
and validly existing in good standing under the laws
of the United States of America;
(ii) it has full power, authority and legal right to
conduct its business and operations as currently
conducted and to enter into and perform its
obligations under this Agreement and the Deposit
Agreement;
(iii) the execution, delivery and performance of each of
this Agreement and the Deposit Agreement have been
duly authorized by all necessary corporate action on
the part of it and do not require any stockholder
approval, or approval or consent of any trustee or
holder of any indebtedness or obligations of it, and
each such document has been duly executed and
delivered by
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it and constitutes its legal, valid and binding
obligations enforceable against it in accordance with
the terms hereof or thereof except as such
enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other
similar laws or equitable principles of general
application to or affecting the enforcement of
creditors' rights generally (regardless of whether
such enforceability is considered in a proceeding in
equity or at law);
(iv) no authorization, consent or approval of or other
action by, and no notice to or filing with, any
United States federal or state governmental authority
or regulatory body is required for the execution,
delivery or performance by it of this Agreement or
the Deposit Agreement;
(v) neither the execution, delivery or performance by it
of this Agreement or the Deposit Agreement, nor
compliance with the terms and provisions hereof or
thereof, conflicts or will conflict with or results
or will result in a breach or violation of any of the
terms, conditions or provisions of, or will require
any consent or approval under, any law, governmental
rule or regulation or the charter documents, as
amended, or bylaws, as amended, of it or any similar
instrument binding on it or any order, writ,
injunction or decree of any court or governmental
authority against it or by which it or any of its
properties is bound or any indenture, mortgage or
contract or other agreement or instrument to which it
is a party or by which it or any of its properties is
bound, or constitutes or will constitute a default
thereunder or results or will result in the
imposition of any lien upon any of its properties;
and
(vi) there are no pending or, to its knowledge, threatened
actions, suits, investigations or proceedings
(whether or not purportedly on behalf of it) against
or affecting it or any of its property before or by
any court or administrative agency which, if
adversely determined, (A) would
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adversely affect the ability of it to perform its
obligations under this Agreement or the Deposit
Agreement or (B) would call into question or
challenge the validity of this Agreement or the
Deposit Agreement or the enforceability hereof or
thereof in accordance with the terms hereof or
thereof, nor is the Escrow Agent in default with
respect to any order of any court, governmental
authority, arbitration board or administrative agency
so as to adversely affect its ability to perform its
obligations under this Agreement or the Deposit
Agreement.
SECTION 6. Representations and Warranties of the Paying
Agent. The Paying Agent represents and warrants to Continental, the Investors,
the Escrow Agent and the Pass Through Trustee as follows:
(i) it is a Delaware banking company duly organized and
validly existing in good standing under the laws of
its jurisdiction of incorporation;
(ii) it has full power, authority and legal right to
conduct its business and operations as currently
conducted and to enter into and perform its
obligations under this Agreement;
(iii) the execution, delivery and performance of this
Agreement has been duly authorized by all necessary
corporate action on the part of it and does not
require any stockholder approval, or approval or
consent of any trustee or holder of any indebtedness
or obligations of it, and such document has been duly
executed and delivered by it and constitutes its
legal, valid and binding obligations enforceable
against it in accordance with the terms hereof except
as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other
similar laws or equitable principles of general
application to or affecting the enforcement of
creditors' rights generally (regardless of whether
such enforceability is considered in a proceeding in
equity or at law);
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(iv) no authorization, consent or approval of or other
action by, and no notice to or filing with, any
United States federal or state governmental authority
or regulatory body is required for the execution,
delivery or performance by it of this Agreement;
(v) neither the execution, delivery or performance by it
of this Agreement, nor compliance with the terms and
provisions hereof, conflicts or will conflict with or
results or will result in a breach or violation of
any of the terms, conditions or provisions of, or
will require any consent or approval under, any law,
governmental rule or regulation or the charter
documents, as amended, or bylaws, as amended, of it
or any similar instrument binding on it or any order,
writ, injunction or decree of any court or
governmental authority against it or by which it or
any of its properties is bound or any indenture,
mortgage or contract or other agreement or instrument
to which it is a party or by which it or any of its
properties is bound, or constitutes or will
constitute a default thereunder or results or will
result in the imposition of any lien upon any of its
properties; and
(vi) there are no pending or, to its knowledge, threatened
actions, suits, investigations or proceedings
(whether or not purportedly on behalf of it) against
or affecting it or any of its property before or by
any court or administrative agency which, if
adversely determined, (A) would adversely affect the
ability of it to perform its obligations under this
Agreement or (B) would call into question or
challenge the validity of this Agreement or the
enforceability hereof in accordance with the terms
hereof, nor is the Paying Agent in default with
respect to any order of any court, governmental
authority, arbitration board or administrative agency
so as to adversely affect its ability to perform its
obligations under this Agreement.
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SECTION 7. Indemnification. Except for actions
expressly required of the Escrow Agent or the Paying Agent hereunder, each of
the Escrow Agent and the Paying Agent shall in all cases be fully justified in
failing or refusing to act hereunder unless it shall have been indemnified by
the party requesting such action in a manner reasonably satisfactory to it
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. In the event Continental
requests any amendment to any Operative Agreement (as defined in the Note
Purchase Agreement), the Pass Through Trustee agrees to pay all reasonable fees
and expenses (including, without limitation, fees and disbursements of counsel)
of the Escrow Agent and the Paying Agent in connection therewith.
SECTION 8. Amendment, Etc. Upon request of the Pass
Through Trustee and approval by an Action of Investors, the Escrow Agent shall
enter into an amendment to this Agreement, so long as such amendment does not
adversely affect the rights or obligations of the Escrow Agent or the Paying
Agent, provided that upon request of the Pass Through Trustee and without any
consent of the Investors, the Escrow Agent shall enter into an amendment to
this Agreement for any of the following purposes:
(1) to correct or supplement any provision in this
Agreement which may be defective or inconsistent with any other provision
herein 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,
provided that any such action shall not materially adversely affect the
interests of the Investors; or
(2) to comply with any requirement of the SEC, 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
(3) to evidence and provide for the acceptance of
appointment under this Agreement of a successor Escrow Agent, successor Paying
Agent or successor Pass Through Trustee.
SECTION 9. Notices. Unless otherwise expressly provided
herein, any notice or other communication under this Agreement shall be in
writing (including by facsimile) and shall
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be deemed to be given and effective upon receipt thereof. All notices shall be
sent to (a) in the case of the Investors, as their respective addresses shall
appear in the Register, (b)Ein the case of the Escrow Agent, First Security
Bank, National Association, 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, XX 00000,
Attention: Corporate Trust Services (Telecopier: (000) 000-0000), (c)Ein the
case of the Pass Through Trustee, Wilmington Trust Company, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, XX 00000, Attention: Corporate Trust Administration
(Telecopier: (000) 000-0000) or (d) in the case of the Paying Agent, Wilmington
Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, Attention:
Corporate Trust Administration (Telecopier: (000) 000-0000), in each case with
a copy to Continental, Continental Airlines, Inc., 0000 Xxxxx Xxxxxxx, Xxxxx
0000, Xxxxxxx, XX 00000, Attention: Executive Vice President and Chief
Financial Officer (Telecopier: (000) 000-0000) (or at such other address as
any such party may specify from time to time in a written notice to the other
parties). On or prior to the execution of this Agreement, the Pass Through
Trustee has delivered to the Escrow Agent a certificate containing specimen
signatures of the representatives of the Pass Through Trustee who are
authorized to give notices and instructions with respect to this Agreement.
The Escrow Agent may conclusively rely on such certificate until the Escrow
Agent receives written notice from the Pass Through Trustee to the contrary.
SECTION 10. Transfer. No party hereto shall be entitled
to assign or otherwise transfer this Agreement (or any interest herein) other
than (in the case of the Escrow Agent) to a successor escrow agent under
Section 1.06 hereof or (in the case of the Paying Agent) to a successor paying
agent under Section 2.04 hereof, and any purported assignment in violation
thereof shall be void. This Agreement shall be binding upon the parties hereto
and their respective successors and (in the case of the Escrow Agent and the
Paying Agent) their respective permitted assigns. Upon the occurrence of the
Transfer (as defined below) contemplated by the Assignment and Assumption
Agreement (as defined below), the Pass Through Trustee shall (without further
act) be deemed to have transferred all of its right, title and interest in and
to this Agreement to the trustee of the Successor Trust (as defined below) and,
thereafter, the trustee of the Successor Trust shall be deemed to be the "Pass
Through Trustee" hereunder with the rights and obligations of the "Pass Through
Trustee" hereunder and each reference herein to "Continental Airlines Pass
Through Trust 1997-1A-O" shall be
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deemed to be a reference to "Continental Airlines Pass Through Trust
1997-1A-S". The parties hereto hereby acknowledge and consent to the Transfer
contemplated by the Assignment and Assumption Agreement. As used herein,
"Transfer" means the transfers of the assets to the Successor Trust
contemplated by the Assignment and Assumption Agreement; "Assignment and
Assumption Agreement" means the Assignment and Assumption Agreement to be
entered into between the Pass Through Trustee and the trustee of the Successor
Trust, substantially in the form of Exhibit D to the Pass Through Trust
Agreement; "Successor Trust" means the Continental Airlines Pass Through Trust
1997-1A-S.
SECTION 11. Entire Agreement. This Agreement sets forth
all of the promises, covenants, agreements, conditions and understandings among
the Escrow Agent, the Paying Agent, the Initial Purchasers and the Pass Through
Trustee with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and undertakings, inducements or conditions, express
or implied, oral or written.
SECTION 12. Governing Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 13. Waiver of Jury Trial Right. EACH OF THE
ESCROW AGENT, THE PAYING AGENT, THE INVESTORS AND THE PASS THROUGH TRUSTEE
ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A
TRIAL BY JURY.
SECTION 14. Counterparts. This Agreement may be executed
in one or more counterparts, all of which taken together shall constitute one
instrument.
IN WITNESS WHEREOF, the Escrow Agent, the Paying Agent, the
Initial Purchasers and the Pass Through Trustee have caused this Escrow and
Paying Agent Agreement (Class A) to be duly executed as of the day and year
first above written.
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---------------------------------------
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
as Escrow Agent
By
------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION;
XXXXXX XXXXXXX & CO. INCORPORATED;
CHASE SECURITIES INC.; and
XXXXXXX, XXXXX & CO.,
as Initial Purchasers
By: CREDIT SUISSE FIRST
BOSTON CORPORATION
By
------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as
Pass Through Trustee for and on
behalf of Continental Airlines Pass
Through Trust 1997-1A-O
By
------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Paying Agent By
By
------------------------------------
Name:
Title:
22
EXHIBIT A
CONTINENTAL AIRLINES 1997-1A ESCROW RECEIPT
No. __
This Escrow Receipt evidences a fractional undivided interest
in amounts ("Account Amounts") from time to time deposited into a certain
paying agent account (the "Paying Agent Account") described in the Escrow and
Paying Agent Agreement (Class A) dated as of March 21, 1997 (as amended,
modified or supplemented from time to time, the "Escrow and Paying Agent
Agreement") among First Security Bank, National Association, as Escrow Agent
(in such capacity, together with its successors in such capacity, the "Escrow
Agent"), Credit Suisse First Boston Corporation, Xxxxxx Xxxxxxx & Co.
Incorporated, Chase Securities Inc. and Xxxxxxx, Xxxxx & Co., as Initial
Purchasers, Wilmington Trust Company, as Pass Through Trustee (in such
capacity, together with its successors in such capacity, the "Pass Through
Trustee") and Wilmington Trust Company, as paying agent (in such capacity,
together with its successors in such capacity, the "Paying Agent").
Capitalized terms not defined herein shall have the meanings assigned to them
in the Escrow and Paying Agent Agreement.
This Escrow Receipt is issued under and is subject to the
terms, provisions and conditions of the Escrow and Paying Agent Agreement. By
virtue of its acceptance hereof the holder of this Escrow Receipt assents and
agrees to be bound by the provisions of the Escrow and Paying Agent Agreement
and this Escrow Receipt.
This Escrow Receipt represents a fractional undivided interest
in amounts deposited from time to time in the Paying Agent Account, and grants
or represents no rights, benefits or interests of any kind in respect of any
assets or property other than such amounts. This Escrow Receipt evidences the
same percentage interest in the Account Amounts as the Fractional Undivided
Interest in the Pass Through Trust evidenced by the Certificate to which this
Escrow Receipt is affixed.
All payments and distributions made to Receiptholders in
respect of the Escrow Receipt shall be made only from Account Amounts deposited
in the Paying Agent Account. The holder of this Escrow Receipt, by its
acceptance of this Escrow Receipt, agrees that it will look solely to the
Account Amounts for any
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payment or distribution due to it pursuant to this Escrow Receipt and that it
will not have any recourse to Continental, the Pass Through Trustee, the Paying
Agent or the Escrow Agent, except as expressly provided herein or in the Pass
Through Trust Agreement. No Receiptholder of this Escrow Receipt shall have
any right to vote or in any manner otherwise control the operation and
management of the Paying Agent Account, nor shall anything set forth herein, or
contained in the terms of this Escrow Receipt, be construed so as to constitute
the Receiptholders from time to time as partners or members of an association.
This Escrow Receipt may not be assigned or transferred except
in connection with the assignment or transfer of the Certificate to which this
Escrow Receipt is affixed. After payment to the holder hereof of its Escrow
Interest in the Final Distribution, upon the request of the Pass Through
Trustee, the holder hereof will return this Escrow Receipt to the Pass Through
Trustee.
The Paying Agent may treat the person in whose name the
Certificate to which this Escrow Receipt is attached as the owner hereof for
all purposes, and the Paying Agent shall not be affected by any notice to the
contrary.
THIS ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Escrow Agent has caused this Escrow
Receipt to be duly executed. Dated: ______________, 1997
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, as Escrow Agent
By
------------------------------------
Name:
Title:
24
EXHIBIT B
WITHDRAWAL CERTIFICATE
(Class A)
First Security Bank, National Association,
as Escrow Agent
Dear Sirs:
Reference is made to the Escrow and Paying Agent Agreement,
dated as of March 21, 1997 (the "Agreement"). We hereby certify to you that
the conditions to the obligations of the undersigned to execute a Participation
Agreement pursuant to the Note Purchase Agreement have been satisfied.
Pursuant to Section 1.02(c) of the Agreement, please execute the attached
Notice of Withdrawal and immediately transmit by facsimile to the Depositary,
at (000) 000-0000, Attention: Xxxxxx Xxxxxx and Xxxxx Xxxxxxx.
Very truly yours,
WILMINGTON TRUST COMPANY
not in its individual capacity by
solely as Pass Through
Trustee
By
------------------------------------
Name:
Title:
Date: , , 199
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