ESCROW AND PAYING AGENT AGREEMENT (Class A) Dated as of July 1, 2009 among WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION as Escrow Agent MORGAN STANLEY & CO. INCORPORATED, GOLDMAN, SACHS & CO. and CALYON SECURITIES (USA) INC. as Underwriters...
(Class
A)
Dated as
of July 1, 2009
among
XXXXX
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as Escrow
Agent
XXXXXX
XXXXXXX & CO. INCORPORATED,
XXXXXXX,
SACHS & CO.
and
CALYON
SECURITIES (USA) 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 2009-1A-O
as Pass
Through Trustee
and
WILMINGTON
TRUST COMPANY
as Paying
Agent
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Exhibit
A
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Exhibit
B
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ESCROW
AND PAYING AGENT AGREEMENT (Class A) dated as of July 1, 2009 (as amended,
modified or supplemented from time to time, this “Agreement”) among
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, a national banking
association, as Escrow Agent (in such capacity, together with its successors in
such capacity, the “Escrow Agent”);
XXXXXX XXXXXXX & CO. INCORPORATED, XXXXXXX, SACHS & CO. and CALYON
SECURITIES (USA) 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 July 1,
2009 (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 2009-1A-O
(the “Pass Through
Trust”) pursuant to which the Continental Airlines Pass Through Trust,
Series 2009-1A-O Certificates referred to therein (the “Certificates”) are
being issued (the date of such issuance, the “Issuance
Date”);
WHEREAS,
Continental and the Underwriters have entered into an Underwriting Agreement
dated as of June 16, 2009 (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 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 certain aircraft currently owned by Continental
and certain other aircraft to be acquired by Continental, 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 The Bank of New York Mellon, as
Depositary (the “Depositary”, which
shall also be deemed to refer to any Replacement Depositary (as defined in the
Note Purchase Agreement) from and after the
date on
which the Deposits are transferred to such Replacement 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,
supplemented or replaced from time to time in accordance with the terms thereof,
the “Deposit
Agreement”, which shall also be deemed to refer to any Replacement
Deposit Agreement (as defined in the Note Purchase Agreement) to which the
Escrow Agent becomes a party pursuant to Section 1.02(a) hereof from and after
the transfer of the Deposits from the Depositary to the Replacement Depositary)
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 than 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, and, if requested by the Company pursuant to
Section 4(a)(vii) of the Note Purchase Agreement, to enter into a Replacement
Deposit Agreement with the Replacement Depositary specified by the
Company;
(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;
(d) upon
receipt of a Withdrawal Certificate executed by the Pass Through Trustee,
together with an attached Notice of Replacement Withdrawal in substantially the
form of Exhibit C to the Deposit Agreement duly completed by the Pass Through
Trustee, to:
(X) give
such Notice of Replacement Withdrawal to the Depositary requesting a withdrawal,
on the date specified in such notice, which shall not be less than five Business
Days after such notice is given (the “Replacement Withdrawal
Date”), of all Deposits then held by the Depositary together with all
accrued and unpaid interest on such Deposits to but excluding the Replacement
Withdrawal Date; and
(Y)
direct the Depositary to transfer such Deposits and accrued interest on behalf
of the Escrow Agent to the Replacement Depositary in accordance with the
Replacement Deposit Agreement; and
(e) if there are
any undrawn Deposits (as defined in the Deposit Agreement) on the “Termination Date”,
which shall mean the earlier of (i) December 31, 2009 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 immediately 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 25th 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 January 8, 2010, and there are unwithdrawn
Deposits on such date, the Final Withdrawal Date shall be deemed to be January
29, 2010.
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 $389,687,000 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 name of the same holder that is the holder of 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 (subject to Section 15 hereof) 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 Ratings Services, a Standard & Poor’s Financial
Services LLC business, 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 than 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 The Depository Trust Company (“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, the Pass Through Trustee or a
Replacement Depositary (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, (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 and (c) in the case of any Replacement
Withdrawal, to the Replacement
Depositary
as provided in the Replacement Depositary Agreement. 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, the Deposit Agreement and any Replacement Deposit
Agreement;
(iii) the
execution, delivery and performance of each of this Agreement, the Deposit
Agreement and any Replacement 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 (other than a Replacement Deposit
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 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, the Deposit Agreement or any Replacement Deposit
Agreement;
(v) neither
the execution, delivery or performance by it of this Agreement, the Deposit
Agreement or any Replacement 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, the Deposit Agreement or any Replacement
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 and Paying 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 and Paying 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, Xxxxx Fargo
Bank Northwest, National Association, 000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx, 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, Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, XX
00000-0000, Attention: Corporate Capital Market Services (Telecopier:
(000) 000-0000) or (d) in the case of the Paying Agent, Wilmington Trust
Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, XX
00000-0000, Attention: Corporate Capital Market Services (Telecopier: (000)
000-0000), in each case with a copy to Continental, Continental Airlines, Inc.,
0000 Xxxxx Xxxxxx, Xxxx. XXX-XX, Xxxxxxx, XX 00000, Attention: Treasurer
(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.
The
Escrow Agent shall notify the Receiptholders in the event of a default in the
payment of interest on the Deposits when due in accordance with the Deposit
Agreement or a default in the payment of any Final Withdrawal in accordance with
the terms of the Deposit Agreement and this Agreement and shall promptly forward
to Receiptholders upon receipt copies of all written communications relating to
any payments due to the Receiptholders in respect of the Deposits.
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 1.07 hereof or (in the case of the Paying
Agent) to a successor paying agent under Section 2.05 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 2009-1A-O” shall be
deemed to be
a
reference to “Continental Airlines Pass Through Trust 2009-1A-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 C to the Trust Supplement; “Successor Trust”
means the Continental Airlines Pass Through Trust 2009-1A-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 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.
SECTION 15. Rights of
Holders.
Each
Receiptholder shall have the right (individually and without the need for any
other action of any Person, including the Escrow Agent or any other
Receiptholder), upon any default in the payment of interest on the Deposits when
due by the Depositary in accordance with the Deposit Agreement, or upon any
default in the payment of the Final Withdrawal when due by the Depositary in
accordance with the terms of the Deposit Agreement and this Agreement, (i) to
proceed directly against the Depositary by making a demand to the Depositary for
the portion of such payment that would have been distributed to such
Receiptholder pursuant to this Agreement or by bringing suit to
enforce payment of such portion and (ii) to enforce any other rights
that the Escrow Agent may have in respect of amounts due from the Depositary
under the Deposit Agreement and this Agreement that would have been distributed
to such Receiptholder pursuant to this Agreement. Any recovery on
such enforcement action shall belong solely to the Receiptholder who brought
such action, and not to the Escrow Agent or any other Receiptholder individually
or to Receiptholders as a group.
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
A) 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:
|
|||
|
XXXXXX
XXXXXXX & CO. INCORPORATED,
as
an Underwriter
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
XXXXXXX,
SACHS & CO.,
as
an Underwriter
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
CALYON
SECURITIES (USA) INC.,
as
an Underwriter
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
Escrow and Paying Agent Agreement (Class A)
|
WILMINGTON
TRUST COMPANY, not in its individual capacity, but solely as Pass Through
Trustee for and on behalf of Continental Airlines Pass Through Trust
2009-1A-O
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
WILMINGTON
TRUST COMPANY,
as
Paying Agent
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
Escrow and Paying Agent Agreement (Class A)
CONTINENTAL
AIRLINES 2009-1A ESCROW RECEIPT
No.
__
This
Escrow Receipt evidences a fractional undivided interest in amounts (“Account Amounts”)
from time to time deposited on behalf of the holder hereof into a certain paying
agent account (the “Paying Agent
Account”) described in the Escrow and Paying Agent Agreement (Class A)
dated as of July 1, 2009 (as amended, modified or supplemented from time to
time, the “Escrow and
Paying Agent Agreement”) among Xxxxx Fargo Bank Northwest, National
Association, as Escrow Agent (in such capacity, together with its successors in
such capacity, the “Escrow Agent”),
Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx, Sachs & Co. and Calyon
Securities (USA) 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 (or, in case
the Depositary shall default in its obligation to make a payment under the
Deposit Agreement that would be an Account Amount, to the Depositary) 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: __________________,
2009
|
XXXXX
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as
Escrow Agent
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
WITHDRAWAL
CERTIFICATE
(Class
A)
Xxxxx
Fargo Bank Northwest, National Association
as Escrow
Agent
Dear
Sirs:
Reference
is made to the Escrow and Paying Agent Agreement, dated as of July 1, 2009 (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] [We hereby notify
you that the Depositary is being replaced in accordance with Section 4(a)(vii)
of the Note Purchase Agreement]. Pursuant to Section
[1.02(c)][1.02(d)] of the Agreement, please execute the attached [Notice of
Purchase Withdrawal][Notice of Replacement Withdrawal] and immediately transmit
by facsimile to the Depositary, at [__________],
Attention: [__________].
|
Very
truly yours,
|
|||
|
WILMINGTON
TRUST COMPANY,
not
in its individual capacity but solely as Pass Through
Trustee
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
Dated: ____________,
200_
