EXECUTION
ESCROW AND PAYING AGENT AGREEMENT
(Class C)
Dated as of February 20, 1998
among
FIRST SECURITY BANK, NATIONAL ASSOCIATION
as Escrow Agent
CREDIT SUISSE FIRST BOSTON CORPORATION,
XXXXXX XXXXXXX & CO. INCORPORATED
and
CHASE SECURITIES INC.
as Underwriters
WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Pass Through Trustee
for and on behalf of
Continental Airlines Pass Through Trust 1998-1C-O
as Pass Through Trustee
and
WILMINGTON TRUST COMPANY
as Paying Agent
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.................... 9
Section 2.06. Notice of Final Withdrawal................................ 10
SECTION 3. Payments......................................................... 10
SECTION 4. Other Actions.................................................... 11
SECTION 5. Representations and Warranties of the Escrow Agent............... 11
SECTION 6. Representations and Warranties of the Paying Agent............... 12
SECTION 7. Indemnification.................................................. 14
SECTION 8. Amendment, Etc................................................... 14
SECTION 9. Notices.......................................................... 15
SECTION 10. Transfer......................................................... 15
SECTION 11. Entire Agreement................................................. 16
SECTION 12. Governing Law ................................................... 16
TABLE OF CONTENTS
(CONTINUED)
PAGE
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SECTION 13. Waiver of Jury Trial Right....................................... 16
SECTION 14. Counterparts..................................................... 16
Exhibit A Escrow Receipt
Exhibit B Withdrawal Certificate
ESCROW AND PAYING AGENT AGREEMENT (Class C) dated as of February 20,
1998 (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 and CHASE SECURITIES INC., as Underwriters of the
Certificates referred to below (the "Underwriters" and together with their
respective transferees and assigns as registered owners of the Certificates, the
"INVESTORS") under the Underwriting 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 Trust Supplement, dated as of February 20,
1998 (the "TRUST SUPPLEMENT"), to the Pass Through Trust Agreement, dated as of
September 25, 1997 (together, 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 1998-1C-O (the "PASS THROUGH
TRUST") pursuant to which the Continental Airlines Pass Through Trust, Series
1998-1C-O Certificates referred to therein (the "CERTIFICATES") are being
issued;
WHEREAS, Continental and the Underwriters have entered into an
Underwriting Agreement dated as of February 11, 1998 (as amended, modified or
supplemented from time to time in accordance with the terms thereof, the
"UNDERWRITING AGREEMENT") pursuant to which the Pass Through Trustee will issue
and sell the Certificates to the Underwriters;
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 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 Underwriters 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, 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
Underwriters, 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 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, the 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 Underwriters, 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 in the Deposit Agreement) on the
"TERMINATION DATE", which shall mean the earlier of (i) June 30, 1999
(provided that, if a labor strike occurs at The Boeing Company prior to
such date (a "LABOR STRIKE"), such date shall be extended by adding thereto
the number of days that such strike continued in effect (the "ADDITIONAL
DAYS") 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 7, 1999 (PROVIDED that if a Labor Strike
occurs, such date shall be extended by the Additional Days), and there are
unwithdrawn Deposits on such date, the Final Withdrawal Date shall be
deemed to be July 30, 1999 (PROVIDED that if a Labor Strike occurs, such
date shall be extended by the Additional Days).
Section 1.03. INITIAL ESCROW AMOUNT; ISSUANCE OF ESCROW RECEIPTS.
The Escrow Agent hereby directs the Underwriters to, and the Underwriters
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 $136,542,000 for
deposit on behalf of the Escrow Agent with the Depositary in accordance
with Section 2.1 of the Deposit Agreement. The Underwriters hereby instruct
the Escrow Agent, upon receipt of such sum from the Underwriters, 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 defined below) 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 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 additional 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 (as defined below) ("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) there 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 in the
Account Amounts and bearing a number not contemporaneously outstanding.
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 duplicate 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. Any successor
Escrow Agent 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 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 Services, a division of The XxXxxx-Xxxx Companies, 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 neither the Escrow Agent nor 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 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 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.
(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 (as
defined in the Deposit Agreement) and any amount in respect of the Final
Withdrawal any and all withholding taxes applicable thereto as required by
law. The Paying Agent agrees to act as such withholding agent 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 (as defined in the Deposit Agreement) 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.
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
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. Any Successor Paying Agent 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 15 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 (as defined in the Deposit
Agreement) 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 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 (as defined in the Deposit
Agreement) 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 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 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);
(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.
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 or any regulatory body; 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 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) in 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) in 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
"1998-1C-O" shall be deemed to be a reference to "Continental Airlines Pass
Through Trust 1998-1C-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 C to the Trust Supplement;
"SUCCESSOR TRUST" means the Continental Airlines Pass Through Trust 1998-1C-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 Underwriters 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
Underwriters and the Pass Through Trustee have caused this Escrow and Paying
Agent Agreement (Class C) to be duly executed as of the day and year first above
written.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, as Escrow Agent
By__________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON
CORPORATION
XXXXXX XXXXXXX & CO.
INCORPORATED and
CHASE SECURITIES INC.,
as Underwriters
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 Airline Pass
Through Trust 1998-1C-O
By__________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Paying Agent
By__________________________
Name:
Title:
EXHIBIT A
CONTINENTAL AIRLINES 1998-1C 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 C) dated as of February 20, 1998 (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 and Chase
Securities Inc., as Underwriters, 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 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: ______________, 199_
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
as Escrow Agent
By________________________
Name:
Title:
EXHIBIT B
WITHDRAWAL CERTIFICATE
(Class C)
First Security Bank, National Association,
as Escrow Agent
Dear Sirs:
Reference is made to the Escrow and Paying Agent Agreement, dated as
of February 20, 1998 (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 (212)
325-8319, Attention: Xxxxxx Xxxxxx and Xxxxx Xxxxxxx.
Very truly yours,
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Pass Through
Trustee
By____________________________
Name:
Title:
Dated: ____________, 199_
