ESCROW AND PAYING AGENT AGREEMENT (Class A) Dated as of April 10, 2007 among WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION as Escrow Agent MORGAN STANLEY & CO. INCORPORATED, CREDIT SUISSE SECURITIES (USA) LLC, MERRILL LYNCH, PIERCE, FENNER & SMITH...
(Class
A)
Dated
as
of April 10, 2007
among
▇▇▇▇▇
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as
Escrow
Agent
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & CO. INCORPORATED,
CREDIT
SUISSE SECURITIES (USA) LLC,
▇▇▇▇▇▇▇
LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
CITIGROUP
GLOBAL MARKETS INC.,
UBS
SECURITIES LLC,
CALYON
SECURITIES (USA) INC.
and
▇.▇.
▇▇▇▇▇▇ 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 2007-1A-O
as
Pass
Through Trustee
and
WILMINGTON
TRUST COMPANY
as
Paying
Agent
cv
| Exhibit A |
| Exhibit B |
ESCROW
AND PAYING AGENT AGREEMENT (Class A) dated as of April 10, 2007 (as amended,
modified or supplemented from time to time, this “Agreement”)
among
▇▇▇▇▇ 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”);
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED, CREDIT SUISSE SECURITIES (USA) LLC,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED, CITIGROUP GLOBAL MARKETS
INC., UBS SECURITIES LLC, CALYON SECURITIES (USA) INC. and ▇.▇. ▇▇▇▇▇▇
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
April
10, 2007 (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 2007-1A-O (the “Pass
Through Trust”)
pursuant to which the Continental Airlines Pass Through Trust, Series 2007-1A-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 March 27, 2007 (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 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, New York Branch,
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 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, 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) September 30, 2009 (provided that, if a labor
strike occurs or continues at The Boeing Company after the Issuance Date and
prior to September 30, 2009 (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”)
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 October 9, 2009 (provided
that if
a Labor Strike occurs or continues, 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 October 31, 2009 (provided
that if
a Labor Strike occurs or continues, 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 $756,762,000 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 2.5 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 ▇▇▇▇▇'▇ Investors Service,
Inc. and Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
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 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, ▇▇▇▇▇ Fargo Bank Northwest,
National Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: Corporate Trust Services (Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇),
(c) in the case of the Pass Through Trustee, Wilmington Trust Company, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Corporate Capital Market Services (Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇) or (d) in the
case of the Paying Agent, Wilmington Trust Company, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Capital
Market Services (Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇), in each case with a copy to
Continental, Continental Airlines, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇. ▇▇▇-▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Treasurer (Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇) (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 1.06 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 2007-1A-O” shall be deemed to be a reference to
“Continental Airlines Pass Through Trust 2007-1A-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 2007-1A-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.
|
▇▇▇▇▇
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as
Escrow Agent
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & CO. INCORPORATED, CREDIT SUISSE SECURITIES (USA) LLC,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED, CITIGROUP GLOBAL
MARKETS INC., UBS SECURITIES INC., CALYON SECURITIES (USA) INC. and
▇.▇.
▇▇▇▇▇▇ SECURITIES INC.
as
Underwriters
|
||
|
By:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
|
||
|
By
|
||
|
Name:
▇▇▇▇▇▇▇ K’ufer
|
||
|
Title:
Managing Director
|
||
|
By:
CREDIT SUISSE SECURITIES (USA) LLC
|
||
|
By
|
||
|
Name:
▇▇▇▇▇ ▇▇▇▇▇
|
||
|
Title:
Director
|
||
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
2007-1A-O
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
|
WILMINGTON
TRUST COMPANY,
as
Paying Agent
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
CONTINENTAL
AIRLINES 2007-1A 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 April
10, 2007 (as amended, modified or supplemented from time to time, the
“Escrow
and Paying Agent Agreement”)
among
▇▇▇▇▇ Fargo Bank Northwest, National Association, as Escrow Agent (in such
capacity, together with its successors in such capacity, the “Escrow
Agent”),
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Credit Suisse Securities (USA) LLC,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Citigroup Global Markets
Inc., UBS Securities LLC, Calyon Securities (USA) Inc. and ▇.▇. ▇▇▇▇▇▇
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 (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:
April 10, 2007
|
▇▇▇▇▇
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as
Escrow Agent
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
WITHDRAWAL
CERTIFICATE
(Class
A)
▇▇▇▇▇
Fargo Bank Northwest, National Association
as
Escrow
Agent
Dear
Sirs:
Reference
is made to the Escrow and Paying Agent Agreement, dated as of April 10, 2007
(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_