DEPOSIT AGREEMENT Dated as of September 22, 2005 between WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION as Escrow Agent and CITIBANK, N.A. as Depositary
EXECUTION
VERSION
Dated
as
of September 22, 2005
between
XXXXX
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as
Escrow
Agent
and
CITIBANK,
N.A.
as
Depositary
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DEPOSIT
AGREEMENT dated as of September 22, 2005 (as amended, modified or supplemented
from time to time, this "Agreement")
between XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, a national banking
association, as Escrow Agent under the Escrow and Paying Agent Agreement
referred to below (in such capacity, together with its successors in such
capacity, the "Escrow
Agent"),
and
CITIBANK, N.A., a national banking association, as depositary bank (the
"Depositary").
W
I T
N E S S E T H
WHEREAS,
Continental Airlines, Inc. ("Continental")
and
Wilmington Trust Company, not in its individual capacity except as otherwise
expressly provided therein, but solely as trustee (in such capacity, together
with its successors in such capacity, the "Pass
Through Trustee")
have
entered into a Trust Supplement, dated as of September 22, 2005, 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 2005-ERJ1 pursuant to
which
the Continental Airlines Pass Through Trust, Series 2005-ERJ1 Certificates
referred to therein (the "Certificates")
are
being issued (the date of such issuance, the "Issuance
Date");
WHEREAS,
Continental, Embraer-Empresa Brasileira de Aeronáutica S.A., Citigroup Global
Markets Inc. (the "Underwriter"
and,
together with its transferees and assigns as registered owners of the
Certificates, the "Investors")
and
the Depositary have entered into an Underwriting Agreement dated as of September
14, 2005, pursuant to which the Pass Through Trustee will issue and sell
the
Certificates to the Underwriter;
WHEREAS,
Continental, the Pass Through Trustee, and certain other persons concurrently
herewith are entering into the Note Purchase Agreement, dated as of the date
hereof (the "Note
Purchase Agreement"),
pursuant to which the Pass Through Trustee has agreed to acquire from time
to
time on or prior to the Delivery Period Termination Date (as defined in the
Note
Purchase Agreement) equipment notes (the "Equipment
Notes")
issued
to finance the acquisition of aircraft by Continental, as lessee, utilizing
a
portion of the proceeds from the sale of the Certificates (the "Net
Proceeds");
WHEREAS,
the Escrow Agent, the Underwriter, the Pass Through Trustee and Wilmington
Trust
Company, as paying agent for the Escrow Agent (in such capacity, together
with
its successors in such capacity, the "Paying
Agent")
concurrently herewith are entering into an Escrow and Paying Agent Agreement,
dated as of the date hereof (as amended, modified or supplemented from time
to
time in accordance with the terms thereof, the "Escrow
and Paying Agent Agreement");
and
WHEREAS,
the Underwriter and the Pass Through Trustee intend that the Net Proceeds
(excluding any amount used to purchase Equipment Notes on the Issuance Date)
be
held in escrow by the Escrow Agent on behalf of the Investors pursuant to
the
Escrow and Paying Agent Agreement, subject to withdrawal upon request of
and
proper certification by the Pass Through Trustee for the purpose of purchasing
Equipment Notes, and that pending such withdrawal the Net Proceeds be deposited
by the Escrow Agent with the Depositary pursuant to
this
Agreement, which provides for the Depositary to pay interest for distribution
to
the Investors and to establish accounts from which the Escrow Agent shall
make
withdrawals upon request of and proper certification by the Pass Through
Trustee.
NOW,
THEREFORE, in consideration of the obligations contained herein, and for
other
good and valuable consideration, the receipt and sufficiency of which are
hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION
1.1 Acceptance
of Depositary.
The
Depositary hereby agrees to act as depositary bank as provided herein and
in
connection therewith to accept all amounts to be delivered to or held by
the
Depositary pursuant to the terms of this Agreement. The Depositary further
agrees to hold, maintain and safeguard the Deposits and the Accounts (as
defined
below) during the term of this Agreement in accordance with the provisions
of
this Agreement. The Escrow Agent shall not have any right to withdraw, assign
or
otherwise transfer moneys held in the Accounts except as permitted by this
Agreement.
SECTION
1.2 Establishment
of Accounts.
The
Escrow Agent hereby instructs the Depositary, and the Depositary agrees,
to
establish the separate deposit accounts listed on Schedule I hereto and to
establish such additional separate deposit accounts as may be required, solely
upon the written instruction of an Authorized Person (as defined in Section
8
hereof) of the Escrow Agent, in connection with the deposits contemplated
by
Section 2.4 hereof (each, an "Account"
and
collectively, the "Accounts"),
each
in the name of the Escrow Agent and all on the terms and conditions set forth
in
this Agreement.
SECTION
2.1 Deposits.
The
Escrow Agent shall direct the Underwriter to deposit with the Depositary
on the
date of this Agreement (the "Deposit
Date")
in
Federal (same day) funds by wire transfer to: Citibank, N.A., ABA No. 000000000,
Account No. 00000000, further credit to Account No. 795733, and the Depositary
shall accept from the Underwriter, on behalf of the Escrow Agent, the sum
of
US$311,010,000 (or such lesser amount equal to the Net Proceeds less amounts,
if
any, used to purchase Equipment Notes on the Issuance Date). Upon acceptance
of
such sum, the Depositary shall (i) accept each of the deposits specified
in
Schedule I hereto maturing on September 28, 2006 (including any deposit made
pursuant to Section 2.4 hereof, individually, a "Deposit"
and,
collectively, the "Deposits")
and
(ii) credit each Deposit to the related Account as set forth therein. No
amount
shall be deposited in any Account other than the related Deposit. The Depositary
shall have no duty to solicit the delivery of any Deposit.
SECTION
2.2 Interest.
The
Depository shall pay interest on each Deposit from and including the date
of
deposit to but excluding the date of withdrawal at the rate of 9.798% per
annum
(computed on the basis of a year of twelve 30 day months) payable to the
Paying
Agent, in accordance with the instructions set forth in Section 4 hereof,
on
behalf of the Escrow Agent monthly in arrears on the 1st day of each month,
commencing on October 1, 2005 (each, an "Interest
Payment Date"),
and
on the date of the Final Withdrawal (as defined below), all in accordance
with
the terms of this Agreement (whether or not any such Deposit is withdrawn
on an
Interest Payment Date). Interest accrued on any Deposit that is withdrawn
pursuant to a Notice of Purchase Withdrawal (as defined below) shall be paid
on
the next Interest Payment Date, notwithstanding any intervening Final Withdrawal
(as defined below).
SECTION
2.3 Withdrawals.
(a) On
and after the date seven days after the receipt and acceptance of any Deposit,
the Escrow Agent may, by providing at least one Business Day's prior notice
of
withdrawal to the Depositary (with a copy to the Pass Through Trustee) in
the
form of Exhibit A hereto (a "Notice
of Purchase Withdrawal"),
signed by an Authorized Person of the Escrow Agent, withdraw not less than
the
entire balance of such Deposit on a Business Day, except that at any time
prior
to the actual withdrawal of such Deposit, the Escrow Agent or the Pass Through
Trustee may, by written notice, signed by an Authorized Person of the Escrow
Agent or the Pass Through Trustee, to the Depositary (provided such notice
is
received by the Depositary prior to the distribution of such withdrawal),
cancel
such withdrawal (including on the scheduled date therefor), and thereafter
such
Deposit shall continue to be maintained by the Depositary in accordance with
the
original terms thereof. Following such withdrawal the balance of such Deposit
in
the related Account shall be zero and, upon payment of interest accrued on
such
Deposit, the Depositary shall close such Account. As used herein, "Business
Day"
means
any day, other than a Saturday, Sunday or other day on which commercial banks
are authorized or required by law to close in New York, New York, Houston,
Texas
or Wilmington, Delaware. The Depositary may waive the foregoing requirement
that
any Deposit can only be withdrawn on or after seven days after the establishment
thereof, and may instead reserve the right, upon at least 14 days' prior
written
notice to Continental, the Escrow Agent and the Pass Through Trustee, to
require
seven days' notice for any withdrawal.
(b) The
Escrow Agent may, by providing at least 15 days' prior notice of withdrawal
to
the Depositary in the form of Exhibit B hereto (a "Notice
of Final Withdrawal"),
withdraw the entire amount of all of the remaining Deposits together with
the
payment by the Depositary of all accrued and unpaid interest on such Deposits
up
to but excluding the specified date of withdrawal (a "Final
Withdrawal"),
on
such Business Day as shall be specified in such Notice of Final Withdrawal.
If a
Notice of Final Withdrawal has not been received by the Depositary on or
before
September 10, 2006, and there are unwithdrawn Deposits in any of the Accounts
on
such date, the Depositary shall pay, via wire transfer in accordance with
the
instructions set forth in Section 4 hereof, the amount of the Final Withdrawal
to the Paying Agent on September 28, 2006.
(c) If
the
Depositary timely receives a duly completed Notice of Purchase Withdrawal
or
Notice of Final Withdrawal (each, a "Withdrawal
Notice")
complying with the provisions of this Agreement, and provided a notice of
cancellation has not been timely received by the Depositary in the case of
a
Notice of Purchase Withdrawal, it shall make the payments specified therein
in
accordance with the provisions of this Agreement.
SECTION
2.4 Other
Accounts.
On the
date of withdrawal of any Deposit (other than the date of the Final Withdrawal),
the Escrow Agent, or the Pass Through Trustee on behalf of the Escrow Agent,
shall re-deposit with the Depositary any portion thereof not used to acquire
Equipment Notes and the Depositary shall accept the same for deposit hereunder
into the account from which it was withdrawn. On the date the Certificates
are
issued, the Escrow Agent, or the Underwriter, on behalf of the Escrow Agent,
shall be entitled to deposit with the Depositary any portion of the Net Proceeds
not theretofore deposited hereunder and not used to purchase Equipment Notes
on
the Issuance Date (the "Unused
Proceeds")
and
the Depositary shall accept the Unused Proceeds for deposit hereunder. Any
sums
so received for deposit shall be received
as
a new
Deposit, credited to a new Account, and Schedule I hereto shall be amended
to
include such Deposit, all as more fully provided in Section 2.1 hereof, and
thereafter the provisions of this Agreement shall apply thereto as fully
and
with the same force and effect as if such Deposit had been established on
the
Deposit Date except that (i) such Deposit may not be withdrawn prior to the
date
seven days after the receipt and acceptance thereof by the Depositary and
(ii)
such Deposit shall mature on September 28, 2006 and bear interest as provided
in
Section 2.2. The Depositary shall promptly give notice to the Escrow Agent
of
receipt of each such re-deposit and the account number assigned
thereto.
SECTION
3. Termination.
This
Agreement shall terminate on the fifth Business Day after the later of the
date
on which (i) all of the Deposits shall have been withdrawn and paid as provided
herein without any re-deposit and (ii) all accrued and unpaid interest on
the
Deposits shall have been paid as provided herein.
SECTION
4. Payments.
All
payments (including, without limitation, those payments made in respect of
Taxes
(as defined and provided for below)) made by the Depositary hereunder shall
be
paid in United States Dollars and immediately available funds by wire transfer
(i) in the case of accrued interest on the Deposits payable under Section
2.2
hereof or any Final Withdrawal, directly to the Paying Agent at Wilmington
Trust
Company, Wilmington, DE, ABA# 000000000, Account No.
070157-000,
Attention: Xxxxxx Xxxxx, Telephone No.: (000) 000-0000, Reference: Continental
Airlines PTT, Series 2005-ERJ1, or to such other account as the Paying Agent
may
direct from time to time in writing to the Depositary and the Escrow Agent
and
(ii) in the case of any withdrawal of one or more Deposits pursuant to a
Notice
of Purchase Withdrawal, directly to or as directed by the Pass Through Trustee
as specified and in the manner provided in such Notice of Purchase Withdrawal.
The Depositary hereby waives any and all rights of set-off, combination of
accounts, right of retention or similar right (whether arising under applicable
law, contract or otherwise) it may have against the Deposits howsoever arising.
All payments on or in respect of each Deposit shall be made free and clear
of
and without reduction for or on account of any and all taxes, levies or other
impositions or charges (collectively, "Taxes").
However, if the Depositary shall be required by law to deduct or withhold
any
Taxes from or in respect of any sum payable hereunder, the Depositary shall
(i)
make such deductions or withholding and (ii) pay the full amount deducted
or
withheld (including in respect of such additional amounts) to the competent
taxation authority. The Depositary shall not have any withholding or tax
reporting obligations with respect to the Deposits, except as may be required
by
law. If the date on which any payment due on any Deposit would otherwise
fall on
a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day, and no additional interest shall accrue in respect
of
such extension.
SECTION
5. Representation
and Warranties.
The
Depositary hereby represents and warrants to Continental, the Escrow Agent,
the
Pass Through Trustee and the Paying Agent that:
(a) it
is a
national banking association duly organized and validly existing under the
laws
of the United States;
(b) it
has
full power, authority and legal right to conduct its business and operations
as
currently conducted and to enter into and perform its obligations under this
Agreement;
(c) the
execution, delivery and performance of this Agreement have been duly authorized
by all necessary corporate action on the part of it and do not require any
stockholder approval, or approval or consent of any trustee or holder of
any
indebtedness or obligations of it, and this Agreement has been duly executed
and
delivered by it and constitutes its legal, valid and binding obligations
enforceable against it in accordance with the terms hereof, except
(x) as enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws now or hereinafter in effect relating to
creditors' rights generally and (y) as enforcement thereof is subject to
general
principles of equity (regardless of whether enforcement is considered in
a
proceeding in equity or at law).
(d) no
authorization, consent or approval of or other action by, and no notice to
or
filing with, any United States federal or state governmental authority or
regulatory body is required for the execution, delivery or performance by
it of
this Agreement;
(e) neither
the execution, delivery or performance by it of this Agreement, nor compliance
with the terms and provisions hereof, conflicts or will conflict with or
results
or will result in a breach or violation of any of the terms, conditions or
provisions of, or will require any consent or approval under, any law,
governmental rule or regulation or the charter documents, as amended, or
bylaws,
as amended, of it or any similar instrument binding on it or any order, writ,
injunction or decree of any court or governmental authority against it or
by
which it or any of its properties is bound or of any indenture, mortgage
or
contract or other agreement or instrument to which it is a party or by which
it
or any of its properties is bound, or constitutes or will constitute a default
thereunder or results or will result in the imposition of any lien upon any
of
its properties; and
(f) there
are
no pending or, to its knowledge, threatened actions, suits, investigations
or
proceedings (whether or not purportedly on behalf of it) against or affecting
it
or any of its property before or by any court or administrative agency which,
if
adversely determined, (i) would adversely affect the ability of it to perform
its obligations under this Agreement or (ii) would call into question or
challenge the validity of this Agreement or the enforceability hereof in
accordance with the terms hereof, nor is the Depositary in default with respect
to any order of any court, governmental authority, arbitration board or
administrative agency so as to adversely affect its ability to perform its
obligations under this Agreement.
SECTION
6. Transfer.
Neither
party hereto shall be entitled to assign or otherwise transfer this Agreement
(or any interest herein) other than (in the case of the Escrow Agent) to
a
successor escrow agent under the Escrow and Paying Agent Agreement, and any
purported assignment in violation thereof shall be void. This Agreement shall
be
binding upon
the
parties hereto and their respective successors and (in the case of the Escrow
Agent) permitted assigns.
SECTION
7. Amendment,
Etc.
This
Agreement may not be amended, waived or otherwise modified except by an
instrument in writing signed by each of the parties hereto.
SECTION
8. Notices.
Unless
otherwise expressly provided herein, any notice or other communication under
this Agreement shall be in writing (including by facsimile) and shall be
deemed
to be given and effective upon receipt thereof. All notices shall be sent
to (x)
in the case of the Depositary, Citibank, N.A., 000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, XX, 00000, Attention: Xxxxxxx X. Xxxxxxx, (Telephone: (000)
000-0000, Telecopier: (000) 000-0000) or (y) in the case of the
Escrow Agent, Xxxxx Fargo Bank Northwest, National Association, 000 Xxxxx
Xxxx
Xxxxxx, XXX: X0000-000, Xxxx Xxxx Xxxx, XX 00000, Attention: Corporate Trust
Services (Telephone: (000) 000-0000, Telecopier: (000) 000-0000), in each
case,
with a copy to the Pass Through Trustee, Wilmington Trust Company, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, XX 00000-0000, Attention:
Corporate Capital Market Services (Telephone: (000) 000-0000,
Telecopier: (000) 000-0000) and to Continental, Continental Airlines, Inc.,
0000
Xxxxx Xxxxxx, Xxxx. XXX-XX, Xxxxxxx, XX 00000, Attention: Treasurer (Telephone:
(000) 000-0000, Telecopier: (000) 000-0000) (or at such other address as
any
such party may specify from time to time in a written notice to the parties
hereto). On or prior to the execution of this Agreement, the Escrow Agent
has
delivered to the Depositary a certificate containing specimen signatures
of the
representatives of the Escrow Agent and the Pass Through Trustee who are
authorized to give notices and instructions with respect to this Agreement,
attached hereto as Schedule IIA and IIB, respectively ("Authorized
Person").
The
Depositary may conclusively rely on such certificate until the Depositary
receives written notice from the Escrow Agent to the contrary.
In
addition, the Depositary may conclusively rely on and shall be protected
in
acting in reliance upon any certificate, instrument, opinion, notice, letter
or
other document or security delivered to the Depositary and believed by the
Depositary in good faith to be genuine and to have been signed and presented
by
the proper person or persons and may act upon any tender, statements, request,
documents, certificate, agreement or other instrument not only as to its
due
execution and validity and effectiveness of its provisions, but also as to
the
truth and accuracy of any information contained therein, which the Depositary
shall in good faith believe to be genuine or to have been signed or presented
by
the proper person or persons. The Depositary shall have no duties or obligations
other than those specifically set forth herein or as may be subsequently
agreed
to in writing between the parties hereto and by the Pass Through Trustee.
The
Depositary may consult with counsel of its selection with respect to any
questions relating to its duties and responsibilities and the advice or opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by the Depositary
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
SECTION
9. Obligations
Unconditional.
The
Depositary hereby acknowledges and agrees that its obligation to repay each
Deposit together with interest thereon as provided
herein
is
absolute, irrevocable and unconditional and constitutes a full recourse
obligation of the Depositary enforceable against it to the full extent of
all of
its assets and properties.
SECTION
10. Entire
Agreement.
This
Agreement (including all attachments hereto) sets forth all of the promises,
covenants, agreements, conditions and understandings between the Depositary
and
the Escrow Agent with respect to the subject matter hereof and supersedes
all
prior and contemporaneous agreements and undertakings, inducements or
conditions, express or implied, oral or written.
SECTION
11. Governing
Law.
This
Agreement, and the rights and obligations of the Depositary and the Escrow
Agent
with respect to the Deposits, shall be governed by, and construed in accordance
with, the laws of the State of New York and subject to the provisions of
Regulation D of the Board of Governors of the Federal Reserve System (or
any
successor), as the same may be modified and supplemented and in effect from
time
to time.
SECTION
12. Waiver
of Jury Trial Right.
EACH OF
THE DEPOSITARY AND THE ESCROW AGENT ACKNOWLEDGES AND ACCEPTS THAT IN ANY
SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT SUCH PARTY
IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.
SECTION
13. Counterparts.
This
Agreement may be executed in one or more counterparts, all of which taken
together shall constitute one instrument.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the Escrow Agent and the Depositary have caused this Deposit
Agreement to be duly executed as of the day and year first above
written.
XXXXX
FARGO BANK NORTHWEST,
NATIONAL
ASSOCIATION,
as
Escrow
Agent
By
___________________________
Name:
Title:
CITIBANK,
N.A.,
as
Depositary
By
___________________________
Name:
Title:
Schedule
I
Schedule
of Deposits
|
Registration
No.
|
Serial
No.
|
Deposit
Amount
|
Account
No.
|
|
N11192
|
00000000
|
11,007,469.39
|
795746
|
|
N11193
|
14500938
|
11,007,469.39
|
795747
|
|
N11194
|
14500940
|
11,007,469.37
|
795748
|
|
N12195
|
14500943
|
11,007,469.37
|
795749
|
|
N17196
|
14500945
|
11,007,469.37
|
795750
|
|
N21197
|
14500947
|
11,007,469.37
|
795751
|
|
N14198
|
14500951
|
11,007,469.37
|
795752
|
|
N11199
|
14500953
|
11,007,469.37
|
795753
|
Schedule
II A & B
INCUMBENCY
CERTIFICATES
EXHIBIT
A
NOTICE
OF
PURCHASE WITHDRAWAL
Citibank,
N.A.
000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
XX, 00000
Attention:
Xxxxxxx X. Xxxxxxx
Telecopier:
(000) 000-0000
Gentlemen:
Reference
is made to the Deposit Agreement dated as of September 22, 2005 (the
"Deposit
Agreement")
between Xxxxx Fargo Bank Northwest, National Association, as Escrow Agent,
and
Citibank, N.A., as Depositary (the "Depositary").
In
accordance with Section 2.3(a) of the Deposit Agreement, the undersigned hereby
requests the withdrawal of the entire amount of the Deposit, $[_______], Account
No. ____________.
The
undersigned hereby directs the Depositary to pay the proceeds of the Deposit
to
________________, Account No. _____, Reference: _________] on _________ __,
200__, upon the telephonic request of a representative of the Pass Through
Trustee.
XXXXX
FARGO BANK NORTHWEST,
NATIONAL
ASSOCIATION,
as
Escrow Agent
By__________________________
Name:
Title:
Dated:
_______ __, 200_
EXHIBIT
B
NOTICE
OF
FINAL WITHDRAWAL
Citibank,
N.A.
000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
XX, 00000
Attention:
Xxxxxxx X. Xxxxxxx
Telecopier:
(000) 000-0000
Gentlemen:
Reference
is made to the Deposit Agreement dated as of September 22, 2005 (the
"Deposit
Agreement")
between Xxxxx Fargo Bank Northwest, National Association, as Escrow Agent,
and
Citibank, N.A., as Depositary (the "Depositary").
In
accordance with Section 2.3(b) of the Deposit Agreement, the undersigned hereby
requests the withdrawal of the entire amount of all Deposits and all accrued
interest to date on such Deposits.
The
undersigned hereby directs the Depositary to pay the proceeds of the Deposits
and accrued interest thereon to the Paying Agent at Wilmington Trust Company,
[ABA# 000000000, Account No. _____________, Reference: Continental
2005-ERJ1].
XXXXX
FARGO BANK NORTHWEST,
NATIONAL
ASSOCIATION,
as
Escrow Agent
By__________________________
Name:
Title:
