DEPOSIT AGREEMENT
Dated as of December 10, 2003
between
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as Escrow Agent
and
CITIBANK, N.A.
as Depositary
TABLE OF CONTENTS
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PAGE
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SECTION 1.1 Acceptance of Depositary........................................2
SECTION 1.2 Establishment of Accounts.......................................2
SECTION 2.1 Deposits........................................................2
SECTION 2.2 Interest........................................................2
SECTION 2.3 Withdrawals.....................................................3
SECTION 2.4 Other Accounts..................................................3
SECTION 3. Termination......................................................4
SECTION 4. Payments.........................................................4
SECTION 5. Representation and Warranties....................................5
SECTION 6. Transfer.........................................................5
SECTION 7. Amendment, Etc...................................................6
SECTION 8. Notices..........................................................6
SECTION 9. Obligations Unconditional........................................7
SECTION 10. Entire Agreement.................................................7
SECTION 11. Governing Law....................................................7
SECTION 12. Waiver of Jury Trial Right.......................................7
SECTION 13. Counterparts.....................................................7
DEPOSIT AGREEMENT dated as of December 10, 2003 (as amended,
modified or supplemented from time to time, this "AGREEMENT") between XXXXX
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, a national banking association, as
Escrow Agent under the Escrow and Paying Agent Agreement referred to below (in
such capacity, together with its successors in such capacity, the "ESCROW
AGENT"), and CITIBANK, N.A., a national banking association, as depositary bank
(the "DEPOSITARY").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, Continental Airlines, Inc. ("CONTINENTAL") and Wilmington
Trust Company, not in its individual capacity except as otherwise expressly
provided therein, but solely as trustee (in such capacity, together with its
successors in such capacity, the "PASS THROUGH TRUSTEE") have entered into a
Trust Supplement, dated as of December 10, 2003, 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
2003-ERJ1 pursuant to which the Continental Airlines Pass Through Trust, Series
2003-ERJ1 Certificates referred to therein (the "CERTIFICATES") are being issued
(the date of such issuance, the "ISSUANCE DATE");
WHEREAS, Continental, and Citigroup Global Markets Inc. and Xxxxxx
Xxxxxxx & Co. Incorporated (collectively, the "UNDERWRITERS" and, together with
their respective transferees and assigns as registered owners of the
Certificates, the "INVESTORS") and the Depositary have entered into an
Underwriting Agreement dated as of December 3, 2003, pursuant to which the Pass
Through Trustee will issue and sell the Certificates to the Underwriters;
WHEREAS, Continental, the Pass Through Trustee, 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, utilizing a portion of the proceeds from the
sale of the Certificates (the "NET PROCEEDS");
WHEREAS, the Escrow Agent, the Underwriters, the Pass Through
Trustee and Wilmington Trust Company, as paying agent for the Escrow Agent (in
such capacity, together with its successors in such capacity, the "PAYING
AGENT") concurrently herewith are entering into an Escrow and Paying Agent
Agreement, dated as of the date hereof (as amended, modified or supplemented
from time to time in accordance with the terms thereof, the "ESCROW AND PAYING
AGENT AGREEMENT"); and
WHEREAS, the Underwriters and the Pass Through Trustee intend that
the Net Proceeds (excluding any amount used to purchase Equipment Notes on the
Issuance Date) be held in escrow by the Escrow Agent on behalf of the Investors
pursuant to the Escrow and Paying Agent Agreement, subject to withdrawal upon
request of and proper certification by the Pass Through Trustee for the purpose
of purchasing Equipment Notes, and that pending such withdrawal the Net Proceeds
be deposited by the Escrow Agent with the Depositary pursuant to this Agreement,
which provides for the Depositary to pay interest for distribution to the
Investors and to establish accounts from which the Escrow Agent shall make
withdrawals upon request of and proper certification by the Pass Through
Trustee.
NOW, THEREFORE, in consideration of the obligations contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1.1 ACCEPTANCE OF DEPOSITARY. The Depositary hereby agrees
to act as depositary bank as provided herein and in connection therewith to
accept all amounts to be delivered to or held by the Depositary pursuant to the
terms of this Agreement. The Depositary further agrees to hold, maintain and
safeguard the Deposits and the Accounts (as defined below) during the term of
this Agreement in accordance with the provisions of this Agreement. The Escrow
Agent shall not have any right to withdraw, assign or otherwise transfer moneys
held in the Accounts except as permitted by this Agreement.
SECTION 1.2 ESTABLISHMENT OF ACCOUNTS. The Escrow Agent hereby
instructs the Depositary, and the Depositary agrees, to establish the separate
deposit accounts listed on Schedule I hereto and to establish such additional
separate deposit accounts as may be required, solely upon the written
instruction of an Authorized Person (as defined in Section 8 hereof) of the
Escrow Agent, in connection with the deposits contemplated by Section 2.4 hereof
(each, an "ACCOUNT" and collectively, the "ACCOUNTS"), each in the name of the
Escrow Agent and all on the terms and conditions set forth in this Agreement.
SECTION 2.1 DEPOSITS. The Escrow Agent shall direct the Underwriters
to deposit with the Depositary on the date of this Agreement (the "DEPOSIT
DATE") in Federal (same day) funds by wire transfer to: Citibank, N.A.,
Reference: 0000-XXX0 Xxxx Through Trust, and the Depositary shall accept from
the Underwriters, on behalf of the Escrow Agent, the sum of US$24,300,000 (plus
such additional Net Proceeds, if any, not used to purchase Equipment Notes on
the Issuance Date). Upon acceptance of such sum, the Depositary shall (i) accept
each of the deposits specified in Schedule I hereto maturing on March 1, 2004
(including any deposit made pursuant to Section 2.4 hereof, individually, a
"DEPOSIT" and, collectively, the "DEPOSITS") and (ii) credit each Deposit to the
related Account as set forth therein. No amount shall be deposited in any
Account other than the related Deposit. The Depositary shall have no duty to
solicit the delivery of any Deposit.
SECTION 2.2 INTEREST. The Depository shall pay interest on each
Deposit from and including the date of deposit to but excluding the date of
withdrawal at the rate of 7.875% per annum (computed on the basis of a year of
twelve 30 day months) payable to the Paying Agent, in accordance with the
instructions set forth in Section 4 hereof, on behalf of the Escrow Agent
semi-annually in arrears on each January 2 and July 2, commencing on July 2,
2004 (each, an "Interest Payment Date"), and on the date of the Final Withdrawal
(as defined below), all in accordance with the terms of this Agreement (whether
or not any such Deposit is withdrawn on an Interest Payment Date). Interest
accrued on any Deposit that is withdrawn pursuant to a Notice of Purchase
Withdrawal (as defined below) shall be paid on the next Interest Payment Date,
notwithstanding any intervening Final Withdrawal (as defined below).
SECTION 2.3 WITHDRAWALS. (a) On and after the date seven days after
the receipt and acceptance of any Deposit, the Escrow Agent may, by providing at
least one Business Day's prior notice of withdrawal to the Depositary (with a
copy to the Pass Through Trustee) in the form of Exhibit A hereto (a "NOTICE OF
PURCHASE WITHDRAWAL"), signed by an Authorized Person of the Escrow Agent,
withdraw not less than the entire balance of such Deposit, except that at any
time prior to the actual withdrawal of such Deposit, the Escrow Agent or the
Pass Through Trustee may, by written notice, signed by an Authorized Person of
the Escrow Agent or the Pass Through Trustee, to the Depositary (provided such
notice is received by the Depositary prior to the distribution of such
withdrawal), cancel such withdrawal (including on the scheduled date therefor),
and thereafter such Deposit shall continue to be maintained by the Depositary in
accordance with the original terms thereof. Following such withdrawal the
balance of such Deposit in the related Account shall be zero and, upon payment
of interest accrued on such Deposit, the Depositary shall close such Account. As
used herein, "BUSINESS DAY" means any day, other than a Saturday, Sunday or
other day on which commercial banks are authorized or required by law to close
in New York, New York, Houston, Texas or Wilmington, Delaware and which is also
a day for trading by and between banks in the London interbank Eurodollar
market. The Depositary may waive the foregoing requirement that any Deposit can
only be withdrawn on or after seven days after the establishment thereof, and
may instead reserve the right, upon at least 14 days' prior written notice to
Continental, the Escrow Agent and the Pass Through Trustee, to require seven
days' notice for any withdrawal.
(b) The Escrow Agent may, by providing at least 15 days' prior
notice of withdrawal to the Depositary in the form of Exhibit B hereto (a
"NOTICE OF FINAL WITHDRAWAL"), withdraw the entire amount of all of the
remaining Deposits together with the payment by the Depositary of all accrued
and unpaid interest on such Deposits up to but excluding the specified date of
withdrawal (a "FINAL WITHDRAWAL"), on such date as shall be specified in such
Notice of Final Withdrawal. If a Notice of Final Withdrawal has not been
received by the Depositary on or before February 9, 2004 (provided that, if a
labor strike occurs or continues at Embraer-Empresa Brasileira de Aeronautica
S.A. after the Issuance Date and prior to January 31, 2004 (a "LABOR STRIKE"),
such date shall be extended by adding thereto the number of days that such
strike continued in effect after the Issuance Date (the "ADDITIONAL DAYS"),
provided the Depositary has been advised of such extension in a written notice
signed by an Authorized Person of the Escrow Agent) and there are unwithdrawn
Deposits in any of the Accounts on such date, the Depositary shall pay, via wire
transfer in accordance with the instructions set forth in Section 4 hereof, the
amount of the Final Withdrawal to the Paying Agent on March 1, 2004 (provided
that if a Labor Strike occurs or continues, such date shall be extended by the
Additional Days).
(c) If the Depositary timely receives a duly completed Notice of
Purchase Withdrawal or Notice of Final Withdrawal (each, a "WITHDRAWAL NOTICE")
complying with the provisions of this Agreement, and provided a notice of
cancellation has not been timely received by the Depositary in the case of a
Notice of Purchase Withdrawal, it shall make the payments specified therein in
accordance with the provisions of this Agreement.
SECTION 2.4 OTHER ACCOUNTS. On the date of withdrawal of any Deposit
(other than the date of the Final Withdrawal), the Escrow Agent, or the Pass
Through Trustee on behalf of the Escrow Agent, shall re-deposit with the
Depositary any portion thereof not used to acquire Equipment Notes and the
Depositary shall accept the same for deposit hereunder into the account from
which it was withdrawn. On the date the Certificates are issued, the Escrow
Agent, or the Underwriters, on behalf of the Escrow Agent, shall be entitled to
deposit with the Depositary any portion of the Net Proceeds not theretofore
deposited hereunder and not used to purchase Equipment Notes on the Issuance
Date (the "UNUSED PROCEEDS") and the Depositary shall accept the Unused Proceeds
for deposit hereunder. Any sums so received for deposit shall be received as a
new Deposit, credited to a new Account, and Schedule I hereto shall be amended
to include such Deposit, all as more fully provided in Section 2.1 hereof, and
thereafter the provisions of this Agreement shall apply thereto as fully and
with the same force and effect as if such Deposit had been established on the
Deposit Date except that (i) such Deposit may not be withdrawn prior to the date
seven days after the receipt and acceptance thereof by the Depositary and (ii)
such Deposit shall mature on March 1, 2004 (provided that if a Labor Strike
occurs or continues, such date shall be extended by the Additional Days) and
bear interest as provided in Section 2.2. The Depositary shall promptly give
notice to the Escrow Agent of receipt of each such re-deposit and the account
number assigned thereto.
SECTION 3. TERMINATION. This Agreement shall terminate on the fifth
Business Day after the later of the date on which (i) all of the Deposits shall
have been withdrawn and paid as provided herein without any re-deposit and (ii)
all accrued and unpaid interest on the Deposits shall have been paid as provided
herein.
SECTION 4. PAYMENTS. All payments (including, without limitation,
those payments made in respect of Taxes (as defined and provided for below))
made by the Depositary hereunder shall be paid in United States Dollars and
immediately available funds by wire transfer (i) in the case of accrued interest
on the Deposits payable under Section 2.2 hereof or any Final Withdrawal,
directly to the Paying Agent at Wilmington Trust Company, Wilmington, DE, ABA#
000000000, Account No. #795463 "2003 ERJI", Attention: Xxxxxx Xxxxx, Telephone
No.: (000) 000-0000, Reference: Continental Airlines PTT, Series 2003-ERJ1, or
to such other account as the Paying Agent may direct from time to time in
writing to the Depositary and the Escrow Agent and (ii) in the case of any
withdrawal of one or more Deposits pursuant to a Notice of Purchase Withdrawal,
directly to or as directed by the Pass Through Trustee as specified and in the
manner provided in such Notice of Purchase Withdrawal. The Depositary 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 the Deposits howsoever arising. All payments on
or in respect of each Deposit shall be made free and clear of and without
reduction for or on account of any and all taxes, levies or other impositions or
charges (collectively, "TAXES"). However, if the Depositary shall be required by
law to deduct or withhold any Taxes from or in respect of any sum payable
hereunder, the Depositary shall (i) make such deductions or withholding and (ii)
pay the full amount deducted or withheld (including in respect of such
additional amounts) to the competent taxation authority. The Depositary shall
not have any withholding or tax reporting obligations with respect to the
Deposits, except as may be required by law. If the date on which any payment due
on any Deposit would otherwise fall on a day which is not a Business Day, such
payment shall be made on the next succeeding Business Day, and such extension of
time shall be included in the computation of interest payable.
SECTION 5. REPRESENTATION AND WARRANTIES. The Depositary hereby
represents and warrants to Continental, the Escrow Agent, the Pass Through
Trustee and the Paying Agent that:
(a) it is a national banking association duly organized and
validly existing in good standing under the laws of the United States;
(b) 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;
(c) the execution, delivery and performance of this 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 this
Agreement 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;
(d) 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;
(e) 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 of 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
(f) 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, (i)
would adversely affect the ability of it to perform its obligations under
this Agreement or (ii) would call into question or challenge the validity
of this Agreement or the enforceability hereof in accordance with the
terms hereof, nor is the Depositary 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 6. TRANSFER. Neither 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 the Escrow
and Paying Agent Agreement, 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) permitted assigns.
SECTION 7. AMENDMENT, ETC. This Agreement may not be amended, waived
or otherwise modified except by an instrument in writing signed by each of the
parties hereto.
SECTION 8. 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 (x) in the case of the Depositary,
Citibank, N.A., 000 Xxxx Xxxxxx, 14th Floor, Zone 3, New York, New York 10005,
Attention: Xxxxxxx Xxxxxxx (Telephone: (000) 000-0000, Telecopier: (212)
657-2762) or (y) in the case of the Escrow Agent, Xxxxx Fargo Bank Northwest,
National Association, 000 Xxxxx Xxxx Xxxxxx, XXX: X0000-000, Xxxx Xxxx Xxxx, XX
00000, Attention: Corporate Trust Services (Telephone: (000) 000-0000,
Telecopier: (000) 000-0000), in each case, with a copy to the Pass Through
Trustee, Wilmington Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxx, XX 00000-0000, Attention: Corporate Capital Market Services
(Telephone: (000) 000-0000, Telecopier: (000) 000-0000) and to Continental,
Continental Airlines, Inc., 0000 Xxxxx Xxxxxx, Xxxx. XXX-XX, Xxxxxxx, XX 00000,
Attention: Treasurer (Telephone: (000) 000-0000, 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 parties hereto). On or prior to the execution of this
Agreement, the Escrow Agent has delivered to the Depositary a certificate
containing specimen signatures of the representatives of the Escrow Agent and
the Pass Through Trustee who are authorized to give notices and instructions
with respect to this Agreement, attached hereto as Schedule IIA and IIB,
respectively ("Authorized Person"). The Depositary may conclusively rely on such
certificate until the Depositary receives written notice from the Escrow Agent
to the contrary.
In addition, the Depositary may conclusively rely on and shall be
protected in acting in reliance upon any certificate, instrument, opinion,
notice, letter or other document or security delivered to the Depositary and
believed by the Depositary in good faith to be genuine and to have been signed
and presented by the proper person or persons and may act upon any tender,
statements, request, documents, certificate, agreement or other instrument not
only as to its due execution and validity and effectiveness of its provisions,
but also as to the truth and accuracy of any information contained therein,
which the Depositary shall in good faith believe to be genuine or to have been
signed or presented by the proper person or persons. The Depositary shall have
no duties or obligations other than those specifically set forth herein or as
may be subsequently agreed to in writing between the parties hereto and by the
Pass Through Trustee. The Depositary may consult with counsel of its selection
with respect to any questions relating to its duties and responsibilities and
the advice or opinion of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted to be taken
by the Depositary hereunder in good faith and in accordance with the advice or
opinion of such counsel.
SECTION 9. OBLIGATIONS UNCONDITIONAL. The Depositary hereby
acknowledges and agrees that its obligation to repay each Deposit together with
interest thereon as provided herein is absolute, irrevocable and unconditional
and constitutes a full recourse obligation of the Depositary enforceable against
it to the full extent of all of its assets and properties.
SECTION 10. ENTIRE AGREEMENT. This Agreement (including all
attachments hereto) sets forth all of the promises, covenants, agreements,
conditions and understandings between the Depositary and the Escrow Agent 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 11. GOVERNING LAW. This Agreement, and the rights and
obligations of the Depositary and the Escrow Agent with respect to the Deposits,
shall be governed by, and construed in accordance with, the laws of the State of
New York and subject to the provisions of Regulation D of the Board of Governors
of the Federal Reserve System (or any successor), as the same may be modified
and supplemented and in effect from time to time.
SECTION 12. WAIVER OF JURY TRIAL RIGHT. EACH OF THE DEPOSITARY AND
THE ESCROW AGENT 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 13. 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 and the Depositary have caused
this Deposit Agreement to be duly executed as of the day and year first above
written.
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
as Escrow Agent
By
---------------------------
Name:
Title:
CITIBANK, N.A.,
as Depositary
By
---------------------------
Name:
Title:
Schedule I
SCHEDULE OF DEPOSITS
--------------------
-------------------------------------------------------------
| AIRCRAFT TYPE | DEPOSIT AMOUNT | ACCOUNT NO. |
| ------------- | -------------- | ----------- |
|-------------------------------------------------------------|
| EMB-145XR | $12,150,000 | N14153 |
|-------------------------------------------------------------|
| EMB-145XR | $12,150,000 | N21154 |
-------------------------------------------------------------
Schedule II A & B
INCUMBENCY CERTIFICATES
EXHIBIT A
NOTICE OF PURCHASE WITHDRAWAL
CITIBANK, N.A.
000 Xxxx Xxxxxx
14th Floor, Xxxx 0
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopier: 000-000-0000
Gentlemen:
Reference is made to the Deposit Agreement dated as of December 10,
2003 (the "DEPOSIT AGREEMENT") between Xxxxx Fargo Bank Northwest, National
Association, as Escrow Agent, and Citibank, N.A., as Depositary (the
"DEPOSITARY").
In accordance with Section 2.3(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the Deposit,
$[_______], Account No. __________.
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposit to ________________, Account No. _____, Reference: _________] on
_________ __, 200__, upon the telephonic request of a representative of the Pass
Through Trustee.
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
as Escrow Agent
By
--------------------------
Name:
Title:
Dated: _______ __, 200_
EXHIBIT B
NOTICE OF FINAL WITHDRAWAL
CITIBANK, N.A.
000 Xxxx Xxxxxx
14th Floor, Xxxx 0
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopier: 000-000-0000
Gentlemen:
Reference is made to the Deposit Agreement dated as of December 10,
2003 (the "DEPOSIT AGREEMENT") between Xxxxx Fargo Bank Northwest, National
Association, as Escrow Agent, and Citibank, N.A., as Depositary (the
"DEPOSITARY").
In accordance with Section 2.3(b)(i) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of all Deposits
and all accrued interest to date on such Deposits.
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposits and accrued interest thereon to the Paying Agent at Wilmington
Trust Company, ABA# 000000000, Account No. _____________, Reference: Continental
2003-ERJ1.
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
as Escrow Agent
By
--------------------------
Name:
Title:
Dated: _________, 200_
