REFERENCE AGENCY AGREEMENT
REFERENCE
AGENCY AGREEMENT, dated as of June 9, 2006, among Continental Airlines, Inc.,
a
Delaware corporation (the “Company”),
Wilmington Trust Company, a Delaware banking corporation (“WTC”),
as
Subordination Agent under the Intercreditor Agreement referred to below, WTC,
as
Mortgagee (as defined in the Trust Indenture and Mortgage referred to below),
and WTC, as reference agent hereunder (the “Reference
Agent”).
W I T N E S S E T H:
WHEREAS,
certain terms used herein have the defined meanings as provided in Section
1
below;
WHEREAS,
concurrently with the execution and delivery of this Agreement, the Company
is
entering into the Note Purchase Agreement, dated as of the date hereof (the
“Note
Purchase Agreement”),
with
WTC, as Mortgagee, WTC, as Pass Through Trustee under each of the Pass Through
Trust Agreements referred to therein, and WTC, as Subordination Agent under
the
Intercreditor Agreement referred to therein, which contemplates, among other
things, the making of a secured loan to the Company by WTC, as Pass Through
Trustee under each of the Pass Through Trust Agreements;
WHEREAS,
concurrently with the execution and delivery of this Agreement, the Company
is
entering into the Trust Indenture and Mortgage, dated as of the date hereof
(the
“Trust
Indenture”)
with
WTC, as Mortgagee, which provides for, among other things, the issuance by
the
Company of Series G Equipment Notes and Series B Equipment Notes
secured by, among other things, certain spare aircraft parts, and bearing
interest at a rate per annum based on LIBOR, as determined pursuant to this
Agreement;
WHEREAS,
concurrently with the execution and delivery of this Agreement, the Class G
Pass Through Trust and the Class B Pass Through Trust have been created
pursuant to the Basic Pass Through Trust Agreement and the applicable Trust
Supplement to facilitate the issuance and sale of Pass Through Certificates
pursuant thereto; and
WHEREAS,
the Company and the Underwriter have entered into the Underwriting Agreement,
which provides that the Company will cause the Pass Through Trustee under the
Class G Pass Through Trust and the Pass Through Trustee under the
Class B Pass Through Trust to issue and sell the Class G Certificates
and the Class B Certificates, respectively, to the Underwriter on the
Issuance Date.
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements contained herein, the parties hereto hereby agree as
follows:
SECTION
1. Definitions.
Unless
otherwise defined herein, all capitalized terms used but not defined herein
have
the meanings assigned to such terms in the Trust Indenture. The
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conventions
of construction and usage set forth in the Indenture are incorporated by
reference herein. In addition, the following terms shall have the meanings
specified below:
“Class
G Certificate”
means
the Pass Through Certificates issued by the Class G Pass Through
Trust.
“Class
B Certificate”
means
the Pass Through Certificates issued by the Class B Pass Through
Trust.
“Interest
Period”
means
(i) in the case of the first Interest Period, the period commencing on (and
including) the Issuance Date and ending on (but excluding) the first Payment
Date following the Issuance Date and (ii) in the case of each subsequent
Interest Period, the period commencing on (and including) the last day of the
immediately preceding Interest Period, and ending on (but excluding) the next
Payment Date.
“Interest
Rate Determination Date”
means,
with respect to any Interest Period, the second London Banking Day prior to
the
first day of such Interest Period.
“LIBOR”
means
the rate determined pursuant to Section 6(b).
“London
Banking Day”
means
any day on which commercial banks are open for general business (including
dealings in foreign exchange and foreign currency deposits) in London,
England.
“Payment
Date”
means
each March 2, June 2, September 2 and December 2, commencing on September 2,
2006, provided
that if
any such day is not a Business Day, then the immediately succeeding Business
Day.
“Reference
Banks”
means
Barclays Bank, JPMorgan Chase Bank and Deutsche Bank (or, if any such bank
is
not at the relevant date a major bank in the London interbank market, another
major bank in the London interbank market in lieu thereof selected by the
Reference Agent in good faith and in a commercially reasonable
manner).
“Representative
Amount”
means
an amount that is representative for a single transaction in the London
interbank market at the relevant time.
“Series
B Interest Rate”
has
the
meaning assigned to such term in Section 6(b) of this
Agreement.
“Series
G Interest Rate”
has
the
meaning assigned to such term in Section 6(b) of this
Agreement.
“Telerate”
means
page 3750 on the Telerate Service (or such other page as may replace that page
on that service, or such other service as may be nominated by the British
Banker’s Association for the purpose of displaying rates or prices comparable to
that).
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SECTION
2. Appointment
of Reference Agent.
The
Company hereby appoints WTC as the Reference Agent, and WTC hereby accepts
such
appointment and agrees to perform the duties and obligations of Reference Agent
set forth in Section 6.
SECTION
3. Status
of Reference Agent.
Any
acts taken by the Reference Agent under this Agreement, including the
calculation of any LIBOR, shall be deemed to have been taken by the Reference
Agent solely in its capacity as an agent acting on behalf of the Company and
shall not create or imply any obligation to, or any agency, fiduciary or trust
relationship with, any of the owners or holders of the Equipment Notes,
Class G Certificates or Class B Certificates.
SECTION
4. Reference
Agent Fees and Expenses.
In
consideration of the Reference Agent’s performance of the services provided for
under this Agreement, the Company shall pay to the Reference Agent an annual
fee
set forth under a separate agreement between the Company and WTC. In addition,
the Company shall reimburse the Reference Agent for all reasonable out-of-pocket
expenses, disbursements and advances (including reasonable legal fees and
expenses) incurred or made by the Reference Agent from time to time in
connection with the services rendered by it under this Agreement, except any
expenses, disbursements, or advances attributable to its negligence or wilful
misconduct.
SECTION
5. Rights
and Liabilities of Reference Agent.
In the
absence of negligence or wilful misconduct on the part of the Reference Agent,
its directors, officers, employees and agents, such persons may conclusively
rely, as to the truth of the statements expressed in, and shall be fully
protected and shall incur no liability for, or in respect of, any action taken,
omitted to be taken, or suffered to be taken by it, in reliance upon, any
written order, instruction, notice, request, direction, statement, certificate,
consent, report, affidavit or other instrument, paper, document or
communication, reasonably believed by it in good faith to be genuine, from
the
Company and conforming to the requirements of this Agreement. Any written order,
instruction, notice, request, direction, statement, certificate, consent,
report, affidavit or other instrument, paper, document or communication from
the
Company or given by it and sent, delivered or directed to the Reference Agent
under, pursuant to, or as permitted by, any provision of this Agreement shall
be
sufficient for purposes of this Agreement if such written order, instruction,
notice, request, direction, statement, certificate, consent, report, affidavit
or other instrument, paper, document or communication is in writing and signed
by any officer of the Company. The Reference Agent may consult with counsel
satisfactory to it and the advice (to be confirmed in writing) or opinion of
such counsel shall constitute full and complete authorization and protection
of
the Reference Agent with respect to any action taken, omitted to be taken,
or
suffered to be taken by it hereunder in good faith and in accordance with and
in
reliance upon the advice to be confirmed in writing or opinion of such counsel.
The Reference Agent shall not be liable for any error resulting from use of
or
reliance on a source or publication required to be used under Section 6 to
the
extent such use of or reliance on such source or publication is contemplated
by
Section 6.
SECTION
6. Duties
of Reference Agent.
(a) The
duties and obligations of the Reference Agent shall be determined solely by
the
express provisions of this Agreement, and no implied covenants or obligations
shall be read into this Agreement against the Reference Agent. Subject to their
duty to act without negligence, neither the Reference Agent nor its directors,
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officers,
employees and agents guarantee the correctness or completeness of any data
or
other information furnished hereunder.
(b) For
the
purpose of calculating the rate of interest payable on the Series G
Equipment Notes (the “Series G
Interest Rate”)
and
the rate of interest payable on the Series B Equipment Notes (the
“Series B
Interest Rate”),
“LIBOR”
for
each Interest Period that commences after the Issuance Date (it being understood
that the Series G Interest Rate and the Series B Interest Rate for the
Interest Period commencing on the Issuance Date shall be determined pursuant
to
the Underwriting Agreement) shall mean the rate determined in accordance with
the following provisions:
(i) The
Reference Agent will determine LIBOR for each such Interest Period as the rate
for deposits in U.S. Dollars for a period of three months which appears on
the
Telerate Page 3750 as of 11:00 a.m., London time, on the Interest Rate
Determination Date for such Interest Period.
(ii) If
the
rate referred to in Section 6(b)(i) does not appear on the Telerate Page 3750,
the Reference Agent will determine LIBOR on the basis of the rates at which
deposits in U.S. Dollars are offered by the Reference Banks at approximately
11:00 a.m., London time, on the Interest Rate Determination Date for such
Interest Period to prime banks in the London interbank market for a period
of
three months commencing on the first day of such Interest Period and in a
Representative Amount. The Reference Agent will request the principal London
office of each of the Reference Banks to provide a quotation of its rate. If
at
least two such quotations are provided, the rate for that Interest Period will
be the arithmetic mean of the quotations. If fewer than two quotations are
provided as requested, the rate for that Interest Period will be the arithmetic
mean of the rates quoted by major banks in New York City, selected by the
Reference Agent in good faith and in a commercially reasonable manner, at
approximately 11:00 a.m., New York City time, on the first day of such Interest
Period for loans in U.S. Dollars to leading European banks for a period of
three
months commencing on the first day of such Interest Period and in a
Representative Amount, except that, if the banks so selected by the Reference
Agent are not quoting as mentioned above, LIBOR shall be the floating rate
of
interest in effect for the last preceding Interest Period.
(c) As
soon
as practicable after 11:00 a.m. (London time) on each Interest Rate
Determination Date, the Reference Agent will calculate the Class G Interest
Rate for such Interest Period, which shall be applicable to the Series G
Equipment Notes, and, accordingly, the Class G Certificates for such
Interest Period, and the Class B Interest Rate for such Interest Period,
which shall be applicable to the Series B Equipment Notes, and, accordingly,
the
Class B Certificates for such Interest Period. The Reference Agent’s
determination of LIBOR, the Class G Interest Rate and the Class B Interest
Rate (in the absence of negligence, wilful default, bad faith or manifest error)
shall be conclusive and binding upon all parties.
(d) As
promptly as is practicable after the determination thereof, the Reference Agent
shall give notice of the applicable LIBOR, the Class G Interest Rate and
the next Payment Date to the Company, the Subordination Agent, each Liquidity
Provider, the Policy Provider, the Pass Through Trustees and the
Mortgagee.
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(e) As
promptly as is practicable after the determination thereof, the Reference Agent
shall give notice of the applicable LIBOR, the Class B Interest Rate and
the next Payment Date to the Company, the Subordination Agent, the Pass Through
Trustees and the Mortgagee.
(f) The
Reference Agent shall determine Break Amount if and when required under the
Trust Indenture.
SECTION
7. Amendment
of the Equipment Notes.
The
Company shall deliver to the Reference Agent, at least three Business Days
prior
to the effective date of any amendment of the interest rate terms of the
Class G Pass Through Trust, Series G Equipment Notes, Class B
Pass Through Trust or Series B Equipment Notes, written notice of such
amendment describing the terms of such amendment in reasonable detail, and
a
certification by the Company that such amendment is in compliance with the
terms
of the Class G Pass Through Trust, the Class B Pass Through Trust or
the Trust Indenture (as applicable).
SECTION
8. Ownership
of Certificates.
The
Reference Agent, its officers, directors, employees and shareholders may become
the owners of or acquire any interest in any Certificates, with the same rights
that it or they would have if it were not the Reference Agent, and may engage
or
be interested in any financial or other transaction with the Company as freely
as if it were not the Reference Agent.
SECTION
9. Term;
Termination, Resignation or Removal of Reference Agent.
(a)
This Agreement shall have a noncancellable term commencing on the date hereof
and expiring on payment in full of the Series G Equipment Notes and Series
B Equipment Notes issued under the Trust Indenture or, if earlier, termination
of the Trust Indenture. During such term, this Agreement shall not be terminable
by any party hereto except as expressly provided in Section 9(b).
(b) The
Reference Agent may at any time resign by giving written notice to the Company,
the Subordination Agent, the Pass Through Trustees and the Mortgagee, specifying
therein the date on which its desired resignation shall become effective;
provided
that
such notice shall be given no less than 30 days prior to said effective date
unless the Reference Agent, the Company, the Subordination Agent, the Pass
Through Trustees and the Mortgagee otherwise agree in writing. The Company
may
remove the Reference Agent at any time by giving written notice to the Reference
Agent and to the holders of the Class G Certificates and Class B
Certificates and specifying the effective date of such removal, which shall
be
at least 30 days after the date of notice; provided,
however,
that no
resignation by or removal of the Reference Agent shall become effective prior
to
the date of appointment by the Company, as provided in Section 10, of a
successor reference agent and the acceptance of such appointment by such
successor reference agent; and provided,
further,
that in
the event that an instrument of acceptance by a successor reference agent shall
not have been delivered pursuant to Section 10 within 90 days after the giving
of such notice of resignation or removal, the Reference Agent may petition
any
court of competent jurisdiction for the appointment of a successor Reference
Agent. The provisions of Sections 5, 11 and 13 hereof shall remain in effect
following termination of this Agreement or the earlier resignation or removal
of
the Reference Agent.
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SECTION
10. Appointment
of Successor Reference Agent.
In the
event of the resignation by or removal of the Reference Agent pursuant to
Section 9, the Company shall promptly appoint a successor reference agent.
Any
successor reference agent appointed by the Company following resignation by
or
removal of the Reference Agent pursuant to the provisions of Section 10 shall
execute and deliver to the incumbent Reference Agent, the Company, the
Subordination Agent, the Pass Through Trustees and the Mortgagee an instrument
accepting such appointment. Thereupon, such successor reference agent shall,
without any further act, deed or conveyance, become vested with all the
authority, rights, powers, immunities, duties and obligations of the Reference
Agent and with like effect as if originally named as Reference Agent hereunder,
and the incumbent Reference Agent shall thereupon be obligated to transfer
and
deliver such relevant records or copies thereof maintained by the Reference
Agent in connection with the performance of its obligations hereunder. The
Company shall notify the Rating Agencies of any resignation by or removal of
the
Reference Agent under Section 9 and of the appointment of and acceptance by
any
successor Reference Agent pursuant to this Section 10.
SECTION
11. Indemnification.
The
Company shall indemnify and hold harmless the Reference Agent, its directors,
officers, employees and agents from and against any and all actions, claims,
damages, liabilities, judgments, losses, costs, charges and expenses (including
reasonable legal fees and expenses) relating to or arising out of actions or
omissions from actions in any capacity hereunder, except actions, claims,
damages, liabilities, judgments, losses, costs, charges and expenses caused
by
the negligence or wilful misconduct of the Reference Agent, its directors,
officers, employees or agents. The Reference Agent shall be indemnified and
held
harmless by the Company for any error resulting from use of or reliance on
a
source or publication required to be used under Section 6. The Reference Agent
shall be indemnified and held harmless by the Company for, or in respect of,
any
actions taken, omitted to be taken or suffered to be taken in good faith by
the
Reference Agent in reliance upon (a) advice to be confirmed in writing or
opinion of counsel or (b) a written instruction from the Company.
SECTION
12. Merger,
Consolidation or Sale of Business by Reference Agent.
Any
corporation into which the Reference Agent may be merged or consolidated or
any
corporation resulting from any merger or consolidation to which the Reference
Agent may be a party, or any corporation to which the Reference Agent may sell
or otherwise transfer all or substantially all of its assets and corporation
trust business, shall, to the extent permitted by applicable law, become the
Reference Agent under this Agreement without the execution or filing of any
paper or any further act by the parties hereto. The Reference Agent shall give
notice in writing to the Company, the Subordination Agent, the Pass Through
Trustees and the Mortgagee of any such merger, consolidation or
sale.
SECTION
13. Miscellaneous.
(a) If
there should develop any conflict between the Reference Agent and any other
Person relating to the rights or obligations of the Reference Agent in
connection with calculation of the Series G Interest Rate or the
Series B Interest Rate, the terms of this Agreement shall govern such
rights and obligations.
(b) The
Reference Agent agrees to cooperate with the Company and its agents, employees,
directors and officers, including by providing such information as may
reasonably be
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requested
to permit the Company or such agents, employees, directors and officers to
monitor the Reference Agent’s compliance with its obligations under this
Agreement.
(c) The
Reference Agent shall not assign or delegate or otherwise subcontract this
Agreement or all or any part of its rights or obligations hereunder to any
Person without the prior written consent of the Company.
(d) THIS
AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE.
(e) This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and
the
same agreement. Delivery of an executed counterpart of a signature page to
this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
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IN
WITNESS WHEREOF, this Agreement has been entered into as of the date first
set
forth above.
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CONTINENTAL
AIRLINES, INC.
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By:
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| Name: | ||
| Title: | ||
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WILMINGTON
TRUST COMPANY, as
Reference Agent |
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By:
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| Name: | ||
| Title: | ||
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WILMINGTON
TRUST COMPANY, as
Subordination Agent |
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By:
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| Name: | ||
| Title: | ||
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WILMINGTON
TRUST COMPANY, as
Mortgagee |
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By:
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| Name: | ||
| Title: | ||