[Execution copy]
CONTINENTAL AIRLINES, INC., ISSUER
Pass Through Certificates, Series 2002-1
UNDERWRITING AGREEMENT
March 11, 2002
Credit Suisse First Boston Corporation
X.X. Xxxxxx Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx Barney Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
Continental Airlines, Inc., a Delaware corporation (the "Company"),
proposes that Wilmington Trust Company, as trustee under each of the Original
Trusts (as defined below) (each, a "Trustee"), issue and sell to the
underwriters named on Schedule II hereto its pass through certificates in the
aggregate principal amounts and with the interest rates and final maturity dates
set forth on Schedule I hereto (the "Offered Certificates") on the terms and
conditions stated herein. Concurrently with the issuance of the Offered
Certificates, the Company is proposing that the Trustee issue and sell in the
respective aggregate principal amounts and with the respective interest rates
and final maturity dates set forth on Schedule IV hereto to one or more
purchasers (x) pass through certificates (the "Class H Certificates") under the
Continental Airlines Pass Through Trust, Series 2002-1H-O (the "Class H Trust")
and (y) pass through certificates (the "Class I Certificates") under the
Continental Airlines Pass Through Trust, Series 2002-1I-O (the "Class I Trust"),
in each case, pursuant to an agreement between the Company and such purchasers
(the "Certificate Purchase Agreement"). The Class H Certificates and the Class I
Certificates, together with the Offered Certificates, shall be referred to
herein as the "Certificates".
The Certificates will be issued pursuant to a Pass Through Trust
Agreement, dated as of September 25, 1997 (the "Basic Agreement"), between the
Company and the Trustee, as supplemented with respect to the issuance of each
class of Certificates by a separate Pass Through Trust Supplement to be dated as
of the Closing Date (as defined below) (individually, an "Original Trust
Supplement"), between the Company and the Trustee (the Basic Agreement as
supplemented by each such Original Trust Supplement being referred to herein
individually as an "Original Pass Through Trust Agreement"). The Original Trust
Supplements are related to the creation and administration of Continental
Airlines Pass Through Trust 2002-1G-1-O (the "Class G-1 Trust"), Continental
Airlines Pass Through Trust 2002-1G-2-O (the "Class G-2 Trust" and, together
with the Class G-1 Trust, the "Class G Trusts", and the Class G Trusts,
collectively with the Class H Trust and the Class I Trust, the "Original
Trusts"), the Class H Trust and the Class I Trust. As used herein, unless the
context otherwise requires, the term "Underwriters" shall mean the firms named
as Underwriters in Schedule II, and the term "you" shall mean, collectively,
Credit Suisse First Boston Corporation ("CSFB"), X.X. Xxxxxx Securities Inc.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxxx Xxxxx Barney Inc.
The cash proceeds of the offering of Offered Certificates by each
Class G Trust, to the extent not used to purchase Equipment Notes (as defined in
the Note Purchase Agreement (as defined below)) on the Closing Date, will be
paid to Xxxxx Fargo Bank Northwest, National Association, as escrow agent (the
"Escrow Agent"), under an Escrow and Paying Agent Agreement among the Escrow
Agent, the Underwriters, the Trustee of such Class G Trust and Wilmington Trust
Company, as paying agent (the "Paying Agent"), for the benefit of the holders of
Offered Certificates issued by such Class G Trust (each, an "Escrow Agreement").
The Escrow Agent will deposit such cash proceeds (each, a "Deposit") with Credit
Suisse First Boston, New York Branch (the "Depositary"), in accordance with a
Deposit Agreement relating to such Class G Trust (each, a "Deposit Agreement"),
and, subject to the fulfillment of certain conditions, will withdraw Deposits
upon request to allow the Trustee to purchase Equipment Notes from time to time
pursuant to a Note Purchase Agreement to be dated as of the Closing Date (the
"Note Purchase Agreement") among the Company, Wilmington Trust Company, as
Trustee of each of the Original Trusts, as Subordination Agent (as hereinafter
defined) and as Paying Agent, and the Escrow Agent. Each Escrow Agent will issue
receipts to be attached to each related Offered Certificate ("Escrow Receipts")
representing each holder's fractional undivided interest in amounts deposited
with such Escrow Agent with respect to the related class of Offered Certificates
and will pay to such holders through the related Paying Agent interest accrued
on the Deposits and received by such Paying Agent pursuant to the related
Deposit Agreement at a rate per annum equal to the interest rate applicable to
the corresponding Offered Certificates.
On the earlier of (i) the first Business Day following August 31,
2002 or, if later, the fifth Business Day following the Delivery Period
Termination Date (as defined in the Note Purchase Agreement) and (ii) the fifth
Business Day following the occurrence of a Triggering Event (as defined in the
Intercreditor Agreement) (such Business Day, the "Trust Transfer Date"), each of
the Original Trusts will transfer and assign all of its assets and rights to a
newly-created successor trust with substantially identical terms except as
described in the Prospectus Supplement (as hereinafter defined) (each, a
"Successor Trust" and, together with the Original Trusts, the "Trusts") governed
by the Basic Agreement, as supplemented with respect to each class of
Certificates by a separate Pass Through Trust Supplement (individually, a
"Successor Trust Supplement"), between the Company and the Trustee (the Basic
Agreement, as supplemented by each such Successor Trust Supplement, being
referred to herein individually as a "Successor Pass Through Trust Agreement"
and, together with the Original Pass Through Trust Agreements, the "Designated
Agreements"). Each Certificate outstanding on the Trust Transfer Date will
represent the same interest in the Successor Trust as the Certificate
represented in the Original Trust. Wilmington Trust Company initially will also
act as trustee of the Successor Trusts (each, a "Successor Trustee").
Certain amounts of interest payable on the Offered Certificates
issued by the Class G-1 Trust will be entitled to the benefits of a primary
liquidity facility and an above-cap liquidity facility. Certain amounts of
interest payable on the Offered Certificates issued by the Class G-2 Trust will
be entitled to the benefits of a primary liquidity facility. Landesbank
Hessen-Thuringen Girozentrale (the "Primary Liquidity Provider") will enter into
separate revolving credit agreements with respect to each of the Class G Trusts
(collectively, the "Primary Liquidity Facilities") to be dated as of the Closing
Date for the benefit of the holders of the Offered Certificates issued by such
Class G Trust. Xxxxxxx Xxxxx Capital Services, Inc. (the "Above-Cap Liquidity
Provider") will enter into a separate interest rate cap agreement with respect
to the Class G-1 Trust (the "Above-Cap Liquidity Facility" and, together with
the Primary Liquidity Facilities, the "Liquidity Facilities") to be dated as of
the Closing Date for the benefit of the holders of the Offered Certificates
issued by the Class G-1 Trust. The Primary Liquidity Provider, the Above-Cap
Liquidity Provider, Ambac Assurance Corporation, as provider of the Policies
referred to below (in such capacity, the "Policy Provider"), and the holders of
the Offered Certificates will be entitled to the benefits of an Intercreditor
Agreement to be dated as of the Closing Date (the "Intercreditor Agreement")
among the Trustees, Wilmington Trust Company, as subordination agent and trustee
thereunder (the "Subordination Agent"), the Policy Provider, the Primary
Liquidity Provider and the Above-Cap Liquidity Provider.
Payments of interest on the Offered Certificates will be supported
by separate certificate guarantee insurance policies for each of the Class G-1
Trust and the Class G-2 Trust (together, the "Policies") issued by the Policy
Provider to the extent the Liquidity Facilities and any funds contained in the
cash collateral accounts funded from the Primary Liquidity Facilities are
insufficient or unavailable for that purpose. The Policies will also support the
payment of the final distributions on the Offered Certificates and will take
effect in certain other circumstances described in the Intercreditor Agreement
and the Policies. The Policies will be issued pursuant to an Insurance and
Indemnity Agreement to be dated as of the Closing Date (the "Policy Provider
Agreement") among the Policy Provider, the Company and the Subordination Agent.
Under the Intercreditor Agreement and the Policy Provider Agreement, the Policy
Provider will be entitled to reimbursement for amounts paid pursuant to claims
made under the Policies, subject to certain limitations.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a shelf registration statement on Form S-3 (File No.
333-67886) relating to pass through certificates (such registration statement
(including the respective exhibits thereto and the respective documents filed by
the Company with the Commission pursuant to the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act"), that are incorporated by reference therein),
as amended at the date hereof, being herein referred to as the "Registration
Statement") and the offering thereof from time to time in accordance with Rule
415 of the Securities Act of 1933, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Securities Act"). The Registration
Statement has been declared effective by the Commission. A final prospectus
supplement reflecting the terms of the Offered Certificates, the terms of the
offering thereof and other matters relating to the Offered Certificates, as
further specified in Section 4(d) hereof, will be prepared and filed together
with the basic prospectus referred to below pursuant to Rule 424 under the
Securities Act (such prospectus supplement, in the form first filed on or after
the date hereof pursuant to Rule 424, being herein referred to as the
"Prospectus Supplement" and any such prospectus supplement in the form or forms
filed prior to the filing of the Prospectus Supplement being herein referred to
as a "Preliminary Prospectus Supplement"). The basic prospectus included in the
Registration Statement and relating to all offerings of pass through
certificates under the Registration Statement, as supplemented by the Prospectus
Supplement, and including the documents incorporated by reference therein, is
herein called the "Prospectus", except that, if such basic prospectus is amended
or supplemented on or prior to the date on which the Prospectus Supplement is
first filed pursuant to Rule 424, the term "Prospectus" shall refer to such
basic prospectus as so amended or supplemented and as supplemented by the
Prospectus Supplement. Any reference herein to the terms "amendment" or
"supplement" with respect to the Prospectus or any Preliminary Prospectus
Supplement shall be deemed to refer to and include any documents filed with the
Commission under the Exchange Act after the date the Prospectus is filed with
the Commission, or the date of such Preliminary Prospectus Supplement, as the
case may be, and incorporated therein by reference pursuant to Item 12 of Form
S-3 under the Securities Act (other than the filings of the Company on Form 8-K
relating to the incorporation by reference of certain information relating to
the Policy Provider (the "Policy Provider 8-Ks")).
Capitalized terms not otherwise defined in this Underwriting
Agreement (the "Agreement") shall have the meanings specified therefor in the
Original Pass Through Trust Agreements, in the Note Purchase Agreement or in the
Intercreditor Agreement; PROVIDED that, as used in this Agreement, the term
"Operative Agreements" shall mean the Deposit Agreements, the Escrow Agreements,
the Intercreditor Agreement, the Liquidity Facilities, the Policies, the Policy
Provider Agreement, the Indemnification Agreement dated the date hereof (the
"Indemnification Agreement") between the Policy Provider and the Underwriters,
the Designated Agreements, the Assignment and Assumption Agreements, the
Reference Agency Agreement, the Certificate Purchase Agreement and the Financing
Agreements (as defined in the Note Purchase Agreement).
1. REPRESENTATIONS AND WARRANTIES. (a) The Company represents and
warrants to, and agrees with each Underwriter that:
(i) The Company meets the requirements for use of Form S-3 under the
Securities Act; the Registration Statement has become effective; and, on
the original effective date of the Registration Statement, the Registration
Statement complied in all material respects with the requirements of the
Securities Act. On the original effective date of the Registration
Statement, the Registration Statement did not include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and on
the date hereof and on the Closing Date, the Prospectus, as amended and
supplemented, if the Company shall have furnished any amendment or
supplement thereto, does not and will not include an untrue statement of a
material fact and does not and will not omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding
sentence does not apply to (x) statements in or omissions from the
Registration Statement, the Preliminary Prospectus or the Prospectus based
upon (A) written information furnished to the Company by any Underwriter
through any of you expressly for use therein ("Underwriter Information"),
(B) the Depositary Information (as hereinafter defined) or (C) information
under the caption "Description of the Policy Provider" in the Preliminary
Prospectus or the Prospectus, documents incorporated by reference under
such caption or the Policy Provider 8-Ks (collectively, the "Policy
Provider Information") or (y) statements or omissions in that part of each
Registration Statement which shall constitute the Statement of Eligibility
of the Trustee under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), on Form T-1.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the Securities Act (excluding the
Policy Provider Information), at the time they were or hereafter, during
the period mentioned in paragraph 4(a) below, are filed with the
Commission, complied or will comply, as the case may be, in all material
respects with the requirements of the Exchange Act.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own, lease and operate its property and to
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
condition (financial or otherwise), business, properties or results of
operations of the Company and its consolidated subsidiaries taken as a
whole (a "Continental Material Adverse Effect").
(iv) Each of Continental Micronesia, Inc., Air Micronesia Inc. and
ExpressJet Airlines, Inc. (together, the "Subsidiaries") has been duly
incorporated and is an existing corporation in good standing under the laws
of the jurisdiction of its incorporation, with corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus; and each Subsidiary is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a Continental Material Adverse
Effect; all of the issued and outstanding capital stock of each Subsidiary
has been duly authorized and validly issued and is fully paid and
nonassessable; and, except as described in the Prospectus, each
Subsidiary's capital stock owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
(v) Except as described in the Prospectus, the Company is not in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or by
which it may be bound or to which any of its properties may be subject,
except for such defaults that would not have a Continental Material Adverse
Effect. The execution, delivery and performance of this Agreement and the
Operative Agreements to which the Company is or will be a party and the
consummation of the transactions contemplated herein and therein have been
duly authorized by all necessary corporate action of the Company and will
not result in any breach of any of the terms, conditions or provisions of,
or constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance (other than any lien, charge or encumbrance
created under any Operative Agreement) upon any property or assets of the
Company pursuant to any indenture, loan agreement, contract, mortgage,
note, lease or other instrument to which the Company is a party or by which
the Company may be bound or to which any of the property or assets of the
Company is subject, which breach, default, lien, charge or encumbrance,
individually or in the aggregate, would have a Continental Material Adverse
Effect, nor will any such execution, delivery or performance result in any
violation of the provisions of the charter or by-laws of the Company or any
statute, any rule, regulation or order of any governmental agency or body
or any court having jurisdiction over the Company.
(vi) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
valid authorization, execution and delivery by the Company of this
Agreement and the Operative Agreements to which it is or will be a party
and for the consummation of the transactions contemplated herein and
therein, except (x) such as may be required under the Securities Act, the
Trust Indenture Act, the securities or "blue sky" or similar laws of the
various states and of foreign jurisdictions or rules and regulations of the
National Association of Securities Dealers, Inc., and (y) filings or
recordings with the Federal Aviation Administration (the "FAA") and under
the Uniform Commercial Code as is in effect in the State of Texas, the
State of Delaware and the State of Utah, which filings or recordings
referred to in this clause (y), with respect to any particular set of
Financing Agreements, shall have been made, or duly presented for filing or
recordation, or shall be in the process of being duly filed or filed for
recordation, on or prior to the applicable Funding Date for the Aircraft
related to such Financing Agreements.
(vii) This Agreement has been duly authorized, executed and
delivered by the Company and the Operative Agreements to which the Company
will be a party will be duly executed and delivered by the Company on or
prior to the Closing Date or the applicable Funding Date, as the case may
be.
(viii) The Operative Agreements to which the Company is or will be a
party, when duly executed and delivered by the Company, assuming that such
Operative Agreements have been duly authorized, executed and delivered by,
and constitute the legal, valid and binding obligations of, each other
party thereto, will constitute valid and binding obligations of the Company
enforceable in accordance with their terms, except (w) 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 hereafter in effect relating to
creditors' rights generally, (x) as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and (y) with respect to
indemnification and contribution provisions, as enforcement thereof may be
limited by applicable law, and subject, in the case of the Successor Pass
Through Trust Agreements, to the delayed effectiveness thereof as set forth
therein. The Basic Agreement as executed is substantially in the form filed
as an exhibit to the Company's current report on Form 8-K dated September
25, 1997 and has been duly qualified under the Trust Indenture Act. The
Offered Certificates and the Designated Agreements to which the Company is,
or is to be, a party will conform in all material respects to the
descriptions thereof in the Prospectus.
(ix) The consolidated financial statements of the Company
incorporated by reference in the Prospectus, together with the related
notes thereto, present fairly in all material respects the financial
position of the Company and its consolidated subsidiaries at the dates
indicated and the consolidated results of operations and cash flows of the
Company and its consolidated subsidiaries for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved, except as otherwise stated therein and except that the
unaudited financial statements do not have all required footnotes. The
financial statement schedules of the Company, if any, incorporated by
reference in the Prospectus present the information required to be stated
therein.
(x) The Company is a "citizen of the United States" within the
meaning of Section 40102(a)(15) of Title 49 of the United States Code, as
amended, and holds an air carrier operating certificate issued pursuant to
Chapter 447 of Title 49 of the United States Code, as amended, for aircraft
capable of carrying 10 or more individuals or 6,000 pounds or more of
cargo. All of the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and
non-assessable.
(xi) On or prior to the Closing Date, the issuance of the
Certificates will be duly authorized by the Trustee. When duly executed,
authenticated, issued and delivered in the manner provided for in the
Original Pass Through Trust Agreements and sold and paid for as provided in
this Agreement and the Certificate Purchase Agreement, the Certificates
will be legally and validly issued and will be entitled to the benefits of
the relevant Original Pass Through Trust Agreements; based on applicable
law as in effect on the date hereof, upon the execution and delivery of the
Assignment and Assumption Agreements in accordance with the Original Pass
Through Trust Agreements, the Certificates will be legally and validly
outstanding under the related Successor Pass Through Trust Agreements; and
when executed, authenticated, issued and delivered in the manner provided
for in the Escrow Agreements, the Escrow Receipts will be legally and
validly issued and will be entitled to the benefits of the related Escrow
Agreements.
(xii) Except as disclosed in the Prospectus, the Company and the
Subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects except where the failure to have such title would
not have a Continental Material Adverse Effect; and except as disclosed in
the Prospectus, the Company and the Subsidiaries hold any leased real or
personal property under valid and enforceable leases with no exceptions
that would have a Continental Material Adverse Effect.
(xiii) Except as disclosed in the Prospectus, there is no action,
suit or proceeding before or by any governmental agency or body or court,
domestic or foreign, now pending or, to the knowledge of the Company,
threatened against the Company or any of its subsidiaries or any of their
respective properties that individually (or in the aggregate in the case of
any class of related lawsuits), could reasonably be expected to result in a
Continental Material Adverse Effect or that could reasonably be expected to
materially and adversely affect the consummation of the transactions
contemplated by this Agreement or the Operative Agreements.
(xiv) Except as disclosed in the Prospectus, no labor dispute with
the employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent that could reasonably be expected to have a
Continental Material Adverse Effect.
(xv) Each of the Company and the Subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of
and from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license
and use its properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to so
obtain, declare or file would not have a Continental Material Adverse
Effect.
(xvi) Except as disclosed in the Prospectus, (x) neither the Company
nor any of the Subsidiaries is in violation of any statute, rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances (collectively, "environmental laws"), owns or
operates any real property contaminated with any substance that is subject
to any environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
individually or in the aggregate is reasonably expected to have a
Continental Material Adverse Effect, and (y) the Company is not aware of
any pending investigation which might lead to such a claim that is
reasonably expected to have a Continental Material Adverse Effect.
(xvii) The accountants that examined and issued an auditors' report
with respect to the consolidated financial statements of the Company and
the financial statement schedules of the Company, if any, included or
incorporated by reference in the Registration Statement are independent
public accountants within the meaning of the Securities Act.
(xviii) Neither the Company nor any of the Original Trusts is, nor
(based on applicable law as in effect on the date hereof) will any of the
Successor Trusts be, as of the execution and delivery of the Assignment and
Assumption Agreements in accordance with the Original Pass Through Trust
Agreements, an "investment company", or an entity "controlled" by an
"investment company", within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act"), in each case required to
register under the Investment Company Act; and after giving effect to (i)
the offering and sale of the Offered Certificates and the application of
the proceeds thereof as described in the Prospectus and (ii) the offering
and sale of the Class H Certificates and the Class I Certificates and the
application of the proceeds thereof as provided in the Certificate Purchase
Agreement, neither the Original Trusts will be, nor (based on applicable
law as in effect on the date hereof) will any of the Successor Trusts be,
as of the execution and delivery of the Assignment and Assumption
Agreements in accordance with the Original Pass Through Trust Agreements,
nor will the escrow arrangements contemplated by the Escrow Agreements
result in the creation of, an "investment company", or an entity
"controlled" by an "investment company", as defined in the Investment
Company Act, in each case required to register under the Investment Company
Act.
(xix) This Agreement and the other Operative Agreements to which the
Company is or will be a party will, upon execution and delivery thereof,
conform in all material respects to the descriptions thereof contained in
the Prospectus (other than, in the case of the Financing Agreements, as
described in the Prospectus).
(xx) No Appraiser is an affiliate of the Company or, to the
knowledge of the Company, has a substantial interest, direct or indirect,
in the Company. To the knowledge of the Company, none of the officers and
directors of any of such Appraisers is connected with the Company or any of
its affiliates as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
(b) The Depositary represents and warrants to, and agrees with, each
Underwriter and the Company that:
(i) The information pertaining to the Depositary set forth under the
caption "Description of the Deposit Agreements -- Depositary"
(collectively, the "Depositary Information") in the Prospectus, as amended
and supplemented, if the Company shall have furnished any amendment or
supplement thereto, does not, and will not as of the Closing Date, contain
any untrue statement of a material fact.
(ii) The Depositary has been duly organized and is validly existing
in good standing under the laws of Switzerland and is duly qualified to
conduct banking business in the State of New York through its New York
branch, with corporate power and authority to own, lease and operate its
property, to conduct its business as described in the Depositary
Information and to enter into and perform its obligations under this
Agreement and the Deposit Agreements.
(iii) No consent, approval, authorization, or order of, or filing
with any governmental agency or body or any court is required for the valid
authorization, execution and delivery by the Depositary of this Agreement
and the Deposit Agreements and for the consummation of the transactions
contemplated herein and therein, except such as may have been obtained.
(iv) The execution and delivery by the Depositary of this Agreement
and the Deposit Agreements and the consummation of the transactions
contemplated herein and therein have been duly authorized by the Depositary
and will not violate any law, governmental rule or regulation or any of its
organizational documents or any order, writ, injunction or decree of any
court or governmental agency against it or the provisions of any indenture,
loan agreement, contract or other instrument to which it is a party or is
bound.
(v) This Agreement has been duly authorized, executed and delivered
by the Depositary, and the Deposit Agreements will be duly authorized,
executed and delivered by the Depositary on or prior to the Closing Date.
(vi) The Deposit Agreements, when duly authorized, executed and
delivered by the Depositary, assuming that such Deposit Agreements have
been duly authorized, executed and delivered by, and constitute the legal,
valid and binding obligations of, the Escrow Agent, will constitute the
legal, valid and binding obligations of the Depositary enforceable in
accordance with their terms, 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).
(vii) Payments of interest and principal in respect of the Deposits
are not subject under the laws of Switzerland or any political subdivision
thereof to any withholdings or similar charges or deductions.
(c) The parties agree that any certificate signed by a duly
authorized officer of the Company and delivered to an Underwriter, or to counsel
for the Underwriters, on the Closing Date and in connection with this Agreement
or the offering of the Offered Certificates, shall be deemed a representation
and warranty by (and only by) the Company to the Underwriters as to the matters
covered thereby.
2. PURCHASE, SALE AND DELIVERY OF OFFERED CERTIFICATES. (a) On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and the conditions herein set forth, the Company agrees to
cause the Trustees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Trustees, at a purchase price of
100% of the principal amount thereof, the aggregate principal amount of Offered
Certificates of each Pass Through Certificate designation set forth opposite the
name of such Underwriter in Schedule II. Concurrently with the issuance of the
Offered Certificates, the Escrow Agents shall issue and deliver to the Trustees
the Escrow Receipts in accordance with the terms of the Escrow Agreements, which
Escrow Receipts shall be attached to the related Offered Certificates.
(b) The Company is advised by you that the Underwriters propose to
make a public offering of the Offered Certificates as set forth in the
Prospectus Supplement as soon after this Agreement has been entered into as in
your judgment is advisable. The Company is further advised by you that the
Offered Certificates are to be offered to the public initially at 100% of their
principal amount -- the public offering price -- plus accrued interest, if any,
and to certain dealers selected by the Underwriters at concessions not in excess
of the concessions set forth in the Prospectus, and that the Underwriters may
allow, and such dealers may reallow, concessions not in excess of the
concessions set forth in the Prospectus to certain other dealers.
(c) As underwriting commission and other compensation to the
Underwriters for their respective commitments and obligations hereunder in
respect of the Offered Certificates, including their respective undertakings to
distribute the Offered Certificates, the Company will pay to CSFB for the
accounts of the Underwriters the amount set forth in Schedule III hereto, which
amount shall be allocated among the Underwriters in the manner determined by
you. Such payment will be made on the Closing Date simultaneously with the
issuance and sale of the Offered Certificates (with attached Escrow Receipts) to
the Underwriters. Payment of such compensation shall be made by Federal funds
check or by wire transfer of immediately available funds.
(d) Delivery of and payment for the Offered Certificates (with
attached Escrow Receipts) shall be made at the offices of Xxxxxx Xxxxxxx & Xxxx
LLP at Xxx Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M. on March
25, 2002 or such other date, time and place as may be agreed upon by the Company
and you (such date and time of delivery and payment for the Offered Certificates
(with attached Escrow Receipts) being herein called the "Closing Date").
Delivery of the Offered Certificates (with attached Escrow Receipts) issued by
each Class G Trust shall be made to CSFB's account at The Depository Trust
Company ("DTC") for the respective accounts of the several Underwriters against
payment by the Underwriters of the purchase price thereof. Payment for the
Offered Certificates issued by each Class G Trust and the related Escrow
Receipts attached thereto shall be made by the Underwriters by wire transfer of
immediately available funds to the accounts and in the manner specified in the
related Escrow Agreement (PROVIDED, that if the Company notifies you that a
Delivery Date is occurring on the Closing Date, a portion of such payment in the
amount specified by the Company shall be paid to the accounts and in the manner
specified in the related Participation Agreement). The Offered Certificates
(with attached Escrow Receipts) issued by each Class G Trust shall be in the
form of one or more fully registered global Offered Certificates, and shall be
deposited with the related Trustee as custodian for DTC and registered in the
name of Cede & Co.
(e) The Company agrees to have the Offered Certificates (with
attached Escrow Receipts) available for inspection and checking by you in New
York, New York not later than 1:00 P.M. on the business day prior to the Closing
Date.
(f) It is understood that each Underwriter has authorized CSFB, on
its behalf and for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Offered Certificates (with attached
Escrow Receipts) that it has agreed to purchase. CSFB, individually and not as a
representative, may (but shall not be obligated to) make payment of the purchase
price for the Offered Certificates to be purchased by any Underwriter whose
check or checks shall not have been received by the Closing Date.
3. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters to purchase and pay for the Offered Certificates pursuant to
this Agreement are subject to the following conditions:
(a) On the Closing Date, no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the Securities
Act and no proceedings therefor shall have been instituted or threatened by
the Commission.
(b) On the Closing Date, you shall have received an opinion of
Xxxxxx Xxxxxxx & Xxxx LLP, counsel for the Company, dated the Closing Date,
in form and substance reasonably satisfactory to you and substantially to
the effect set forth in Exhibit A hereto.
(c) On the Closing Date, you shall have received an opinion of the
General Counsel of the Company, dated the Closing Date, in form and
substance reasonably satisfactory to you and substantially to the effect
set forth in Exhibit B hereto.
(d) On the Closing Date, you shall have received an opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A., counsel for Wilmington Trust Company,
individually and as Trustee, Subordination Agent and Paying Agent, dated
the Closing Date, in form and substance reasonably satisfactory to you and
substantially to the effect set forth in Exhibit C hereto.
(e) On the Closing Date, you shall have received an opinion of Ray,
Xxxxxxx & Xxxxxxx, counsel for the Escrow Agent, dated the Closing Date, in
form and substance reasonably satisfactory to you and substantially to the
effect set forth in Exhibit D hereto.
(f) On the Closing Date, you shall have received an opinion of
Xxxxxx Xxxxxx and Xxxxxx Xxxxxx, German in-house counsel for the Primary
Liquidity Provider, dated the Closing Date, in form and substance
reasonably satisfactory to you and substantially to the effect set forth in
Exhibit E hereto.
(g) On the Closing Date, you shall have received an opinion of
Pillsbury Winthrop LLP, special New York counsel to the Primary Liquidity
Provider, dated the Closing Date, in form and substance reasonably
satisfactory to you and substantially to the effect set forth in Exhibit F
hereto.
(h) On the Closing Date, you shall have received an opinion of
Xxxxxxx Xxxx, New York in-house counsel to the Above-Cap Liquidity
Provider, dated the Closing Date, in form and substance reasonably
satisfactory to you and substantially to the effect set forth in Exhibit G
hereto.
(i) On the Closing Date, you shall have received an opinion of New
York in-house counsel to the Above-Cap Liquidity Guarantor, dated the
Closing Date, in form and substance reasonably satisfactory to you and
substantially to the effect set forth in Exhibit H hereto.
(j) On the Closing Date, you shall have received an opinion of Xxxxx
Xxxxxxx, New York in-house counsel for the Depositary, dated the Closing
Date, in form and substance reasonably satisfactory to you and
substantially to the effect set forth in Exhibit I hereto.
(k) On the Closing Date, you shall have received an opinion of
Xxxxxxxx Xxxxxxx, Swiss in-house counsel for the Depositary, dated the
Closing Date, in form and substance reasonably satisfactory to you and
substantially to the effect set forth in Exhibit J hereto.
(l) On the Closing Date, you shall have received an opinion of Xxxx
X. Xxxxx, Vice President and Assistant General Counsel for the Policy
Provider, dated the Closing Date, in form and substance reasonably
satisfactory to you and substantially to the effect set forth in Exhibit K
hereto.
(m) On the Closing Date, you shall have received an opinion of
Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for the Underwriters, dated as
of the Closing Date, with respect to the issuance and sale of the Offered
Certificates, the Registration Statement, the Prospectus and other related
matters as the Underwriters may reasonably require.
(n) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries considered as one enterprise that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable to
proceed with the completion of the public offering of the Offered
Certificates on the terms and in the manner contemplated by the Prospectus.
(o) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Policy Provider and
its subsidiaries considered as one enterprise that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable to
proceed with the completion of the public offering of the Offered
Certificates on the terms and in the manner contemplated by the Prospectus.
(p) You shall have received on the Closing Date a certificate, dated
the Closing Date and signed by the President or any Vice President of the
Company, to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the Closing
Date as if made on the Closing Date (except to the extent that they relate
solely to an earlier date, in which case they shall be true and accurate as
of such earlier date), that the Company has performed all its obligations
to be performed hereunder on or prior to the Closing Date and that,
subsequent to the execution and delivery of this Agreement, there shall not
have occurred any material adverse change, or any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries considered as one enterprise, except as set
forth in or contemplated by the Prospectus.
(q) As of the Closing Date, the representations and warranties of
the Policy Provider contained in the Indemnification Agreement shall be
true and correct in all material respects as of the Closing Date (except to
the extent that they relate solely to an earlier or later date, in which
case they shall be true and correct as of such earlier or later date) and
the Underwriters shall have received a certificate of the President or a
Vice President of the Policy Provider, dated as of the Closing Date, to
such effect.
(r) You shall have received from Ernst & Young LLP a letter, dated
the date hereof, in form and substance satisfactory to you.
(s) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have been any downgrading in the
rating accorded any of the Company's securities (except for any pass
through certificates) by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act, or any public announcement that any such organization
has under surveillance or review, in each case for possible change, its
ratings of any such securities other than pass through certificates (other
than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating).
(t) Each of the Appraisers shall have furnished to the Underwriters
a letter from such Appraiser, addressed to the Company and dated the
Closing Date, confirming that such Appraiser and each of its directors and
officers (i) is not an affiliate of the Company or any of its affiliates,
(ii) does not have any substantial interest, direct or indirect, in the
Company or any of its affiliates and (iii) is not connected with the
Company or any of its affiliates as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar
functions.
(u) At the Closing Date, each of the Operative Agreements (other
than the Assignment and Assumption Agreements and the Financing Agreements)
shall have been duly executed and delivered by each of the parties thereto;
and the representations and warranties of the Company contained in each of
such executed Operative Agreements shall be true and correct as of the
Closing Date (except to the extent that they relate solely to an earlier
date, in which case they shall be true and correct as of such earlier date)
and the Underwriters shall have received a certificate of the President or
a Vice President of the Company, dated as of the Closing Date, to such
effect.
(v) On the Closing Date, the Offered Certificates shall be rated (x)
not lower than "AAA" by Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. and (y) not lower than "Aaa" by Xxxxx'x
Investors Service, Inc.
(w) On the Closing Date, the representations and warranties of the
Depositary contained in this Agreement shall be true and correct as if made
on the Closing Date (except to the extent that they relate solely to an
earlier date, in which case they shall be true and correct as of such
earlier date).
(x) You shall have received from Ernst & Young LLP a letter, dated
the Closing Date, which meets the requirements of subsection (r) of this
Section, except that the specified date referred to in such subsection will
be a date not more than three business days prior to the Closing Date for
the purposes of this subsection.
(y) On the Closing Date, the Certificate Purchase Agreement shall
have been duly authorized, executed and delivered by each of the parties
thereto substantially in the form provided to you prior to the execution of
this Agreement or otherwise in a form reasonably satisfactory to you and
shall be in full force and effect and the Class H Certificates and the
Class I Certificates shall, simultaneously with the issuance of the Offered
Certificates, be duly and validly issued in accordance with the terms
thereof.
The Company will furnish the Underwriters with such conformed copies
of such opinions, certificates, letters and documents as the Underwriters
reasonably request.
4. CERTAIN COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter as follows:
(a) During the period described in the following sentence of this
Section 4(a), the Company shall advise you promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus (except by
documents filed under the Exchange Act) and will not effect such amendment
or supplement (except by documents filed under the Exchange Act) without
your consent, which consent will not be unreasonably withheld. If, at any
time after the public offering of the Offered Certificates as the
Prospectus is required by law to be delivered in connection with sales of
the Offered Certificates by an Underwriter or a dealer, any event shall
occur as a result of which it is necessary to amend the Registration
Statement or amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading in any material respect, or if
it is necessary to amend the Registration Statement or amend or supplement
the Prospectus to comply with law, the Company shall prepare and furnish,
at its own expense, to the Underwriters and to the dealers (whose names and
addresses you will furnish to the Company) to which Offered Certificates
may have been sold by you on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus so
that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading in any material respect or amendments or
supplements to the Registration Statement or the Prospectus so that the
Registration Statement or the Prospectus, as so amended or supplemented,
will comply with law and cause such amendments or supplements to be filed
promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company
shall notify each Underwriter immediately of (i) the effectiveness of any
amendment to the Registration Statement (except for documents filed under
the Exchange Act by the Policy Provider), (ii) the transmittal to the
Commission for filing of any supplement to the Prospectus or any document
that would as a result thereof be incorporated by reference in the
Prospectus (except for documents filed under the Exchange Act by the Policy
Provider), (iii) the receipt of any comments from the Commission with
respect to the Registration Statement, the Prospectus or the Prospectus
Supplement, (iv) any request by the Commission to the Company for any
amendment to the Registration Statement or any supplement to the Prospectus
or for additional information relating thereto or to any document
incorporated by reference in the Prospectus and (v) receipt by the Company
of any notice of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement, the suspension
of the qualification of the Offered Certificates for offering or sale in
any jurisdiction, or the institution or threatening of any proceeding for
any of such purposes; and the Company agrees to use every reasonable effort
to prevent the issuance of any such stop order and, if any such order is
issued, to obtain the lifting thereof at the earliest possible moment and
the Company shall (subject to the proviso to Section 4(e)) endeavor, in
cooperation with the Underwriters, to prevent the issuance of any such stop
order suspending such qualification and, if any such order is issued, to
obtain the lifting thereof at the earliest possible moment.
(c) During the period mentioned in paragraph (a) above, the Company
will furnish to each of the Underwriters as many conformed copies of the
Registration Statement (as originally filed) and all amendments and
supplements to such documents (excluding all exhibits and documents filed
therewith or incorporated by reference therein) and as many conformed
copies of all consents and certificates of experts, in each case as soon as
available and in such quantities as each of the Underwriters reasonably
requests.
(d) Promptly following the execution of this Agreement, the Company
will prepare a Prospectus Supplement that complies with the Securities Act
and that sets forth the principal amount of the Offered Certificates and
their terms (including, without limitation, terms of the Escrow Receipts
attached to the Offered Certificates) not otherwise specified in the
Preliminary Prospectus Supplement or the basic prospectus included in the
Registration Statement, the name of each Underwriter and the principal
amount of the Offered Certificates that each severally has agreed to
purchase, the name of each Underwriter, if any, acting as representative of
the Underwriters in connection with the offering, the price at which the
Offered Certificates are to be purchased by the Underwriters from the
Original Trustees, any initial public offering price, any selling
concession and reallowance and any delayed delivery arrangements, and such
other information as you and the Company deem appropriate in connection
with the offering of the Offered Certificates. The Company will timely
transmit copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424 under the Securities Act.
(e) The Company shall, in cooperation with the Underwriters,
endeavor to arrange for the qualification of the Offered Certificates for
offer and sale under the applicable securities or "blue sky" laws of such
jurisdictions in the United States as you reasonably designate and will
endeavor to maintain such qualifications in effect so long as required for
the distribution of the Offered Certificates; PROVIDED that the Company
shall not be required to (i) qualify as a foreign corporation or as a
dealer in securities, (ii) file a general consent to service of process or
(iii) subject itself to taxation in any such state.
(f) During the period of ten years after the Closing Date, the
Company will promptly furnish to each of the Underwriters, upon request,
copies of all Annual Reports on Form 10-K and any definitive proxy
statement of the Company filed with the Commission; PROVIDED THAT providing
a website address at which such Annual Reports and any such definitive
proxy statements may be accessed will satisfy this clause (f).
(g) Between the date of this Agreement and the Closing Date, except
as contemplated by the Certificate Purchase Agreement, the Company shall
not, without your prior written consent, offer, sell, or enter into any
agreement to sell (as public debt securities registered under the
Securities Act (other than the Offered Certificates) or as debt securities
which may be resold in a transaction exempt from the registration
requirements of the Securities Act in reliance on Rule 144A thereunder and
which are marketed through the use of a disclosure document containing
substantially the same information as a prospectus for similar debt
securities registered under the Securities Act), any equipment notes, pass
through certificates, equipment trust certificates or equipment purchase
certificates secured by aircraft owned or leased by the Company (or rights
relating thereto).
5. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter, and each Person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such action
or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
the Preliminary Prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon Underwriter Information, Depositary Information or Policy Provider
Information; PROVIDED, HOWEVER, that the foregoing indemnity agreement with
respect to the Preliminary Prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Certificates, or to the benefit of any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of such Offered Certificates to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities unless such failure to
deliver the Prospectus was a result of noncompliance by the Company with its
delivery requirements set forth in Section 4(a).
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, each of the officers who signed
the Registration Statement and each person, if any, who controls the Company,
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, to the same extent as the foregoing indemnity from the Company
to such Underwriter but only with reference to the Underwriter Information
provided by such Underwriter.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing. The
indemnifying party, upon request of the indemnified party, shall, and the
indemnifying party may elect to, retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and the indemnifying party
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them, or (iii) the indemnifying party shall have
failed to retain counsel as required by the prior sentence to represent the
indemnified party within a reasonable amount of time. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by you in the case
of parties indemnified pursuant to paragraph (a) above and by the Company in the
case of parties indemnified pursuant to paragraph (b) above. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested in writing an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 90
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement, unless such
fees and expenses are being disputed in good faith. The indemnifying party at
any time may, subject to the last sentence of this Section 5(c), settle or
compromise any proceeding described in this paragraph at the expense of the
indemnifying party. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified party.
(d) To the extent the indemnification provided for in paragraph (a)
or (b) of this Section 5 is required to be made but is unavailable to an
indemnified party or insufficient in respect of any losses, claims, damages or
liabilities, then the applicable indemnifying party under such paragraph, in
lieu of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the offering of the Offered Certificates
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other hand in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Certificates
shall be deemed to be in the same respective proportions as the proceeds from
the offering of the Offered Certificates received by the Original Trusts (before
deducting expenses) less total underwriting discounts and commissions paid to
the Underwriters by the Company, and the total underwriting discounts and
commissions paid to the Underwriters by the Company, in each case as set forth
on the cover of the Prospectus, bear to the aggregate public offering price of
the Offered Certificates. The relative fault of the Company on the one hand and
of the Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or information supplied by any Underwriter,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Underwriters'
respective obligations to contribute pursuant to this Section 5 are several in
proportion to the respective principal amount of Offered Certificates they have
purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 5 were determined by PRO
RATA allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 5, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Offered Certificates
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The indemnity and contribution provisions contained in this
Section 5 and the representations and warranties of the Company contained in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any person controlling the
Company, and (iii) acceptance of and payment for any of the Offered
Certificates. The remedies provided for in this Section 5 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
6. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters
defaults in their obligations to purchase Offered Certificates hereunder and the
aggregate principal amount of the Offered Certificates that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of the Offered Certificates, you may make
arrangements satisfactory to the Company for the purchase of such Offered
Certificates by other persons, including any of the non-defaulting Underwriters,
but if no such arrangements are made by the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Certificates that such defaulting
Underwriter or Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters so default and the aggregate principal amount of the Offered
Certificates with respect to which such default or defaults occurs exceeds 10%
of the total principal amount of the Offered Certificates and arrangements
satisfactory to you and the Company for purchase of such Offered Certificates by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 5. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
7. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any termination of this Agreement, any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter, the Company
or any of their respective representatives, officers or directors or any
controlling person and will survive delivery of and payment for the Offered
Certificates. If for any reason the purchase of the Offered Certificates by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 9 and the respective
obligations of the Company and the Underwriters pursuant to Section 5 shall
remain in effect. If the purchase of the Offered Certificates by the
Underwriters is not consummated for any reason other than solely because of the
occurrence of the termination of the Agreement pursuant to Section 6 or 8, the
Company will reimburse the Underwriters for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of such Offered Certificates and comply
with its obligations under Section 9.
8. TERMINATION. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been materially suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange or the National
Association of Securities Dealers, Inc., (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities, (iv)
there shall have occurred any attack on, outbreak or escalation of hostilities
or act of terrorism involving, the United States, or any change in financial
markets or any calamity or crisis that, in each case, in your judgment, is
material and adverse or (v) any major disruption of settlements of securities or
clearance services in the United States that would materially impair settlement
and clearance with respect to the Offered Certificates and (b) in the case of
any of the events specified in clauses (a)(i) through (v), such event singly or
together with any other such event makes it, in your judgment, impracticable to
market the Offered Certificates on the terms and in the manner contemplated in
the Prospectus.
9. PAYMENT OF EXPENSES. As between the Company and the Underwriters,
the Company shall pay all expenses incidental to the performance of the
Company's obligations under this Agreement, including the following:
(i) expenses incurred in connection with (A) qualifying the Offered
Certificates for offer and sale under the applicable securities or "blue
sky" laws of such jurisdictions in the United States as you reasonably
designate (including filing fees and fees and disbursements of counsel for
the Underwriters in connection therewith), (B) endeavoring to maintain such
qualifications in effect so long as required for the distribution of such
Offered Certificates, (C) the review (if any) of the offering of the
Offered Certificates by the National Association of Securities Dealers,
Inc., (D) the determination of the eligibility of the Offered Certificates
for investment under the laws of such jurisdictions as the Underwriters may
designate and (E) the preparation and distribution of any blue sky or legal
investment memorandum by Underwriters' counsel;
(ii) expenses incurred in connection with the preparation and
distribution to the Underwriters and the dealers (whose names and addresses
the Underwriters will furnish to the Company) to which Offered Certificates
may have been sold by the Underwriters on their behalf and to any other
dealers upon request, either of (A) amendments to the Registration
Statement or amendments or supplements to the Prospectus (excluding Policy
Provider Information) in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
materially misleading or (B) amendments or supplements to the Registration
Statement or the Prospectus (excluding Policy Provider Information) so that
the Registration Statement or the Prospectus, as so amended or
supplemented, will comply with law and the expenses incurred in connection
with causing such amendments or supplements to be filed promptly with the
Commission, all as set forth in Section 4(a) hereof;
(iii) expenses incurred in connection with the preparation, printing
and filing of the Registration Statement (including financial statements
and exhibits), as originally filed and as amended, the Preliminary
Prospectus and the Prospectus and any amendments thereof and supplements
thereto (excluding Policy Provider Information), and the cost of furnishing
copies thereof to the Underwriters;
(iv) expenses incurred in connection with the preparation, printing
and distribution of this Agreement, the Offered Certificates and the
Operative Agreements;
(v) expenses incurred in connection with the delivery of the Offered
Certificates to the Underwriters;
(vi) reasonable fees and disbursements of the counsel and
accountants for the Company;
(vii) to the extent the Company is so required under any Operative
Agreement to which it is a party, the fees and expenses of the Loan
Trustees, the Subordination Agent, the Paying Agents, the Trustees, the
Escrow Agents, the Depositary, the Primary Liquidity Provider, the
Above-Cap Liquidity Provider, the Policy Provider and the reasonable fees
and disbursements of their respective counsel;
(viii) fees charged by rating agencies for rating the Offered
Certificates (including annual surveillance fees related to the Offered
Certificates as long as they are outstanding);
(ix) reasonable fees and disbursements of counsel for the
Underwriters in an amount to be agreed between the Underwriters and the
Company;
(x) all fees and expenses relating to appraisals of the Aircraft;
and
(xi) all other reasonable out-of-pocket expenses incurred by the
Underwriters in connection with the transactions contemplated by this
Agreement.
10. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or sent by facsimile
transmission and confirmed to the Underwriters, c/o Credit Suisse First Boston
Corporation, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Transactions
Advisory Group, facsimile number (000) 000-0000, c/o X.X. Xxxxxx Securities
Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Transaction Execution
Group, Xxxxx Xxxxxx, facsimile number (000) 000-0000, Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, 0 Xxxxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX
00000, Attention: Xxxxxxx Xxxxxx, facsimile number (000) 000-0000 and c/o
Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx X. Xxxxx and, if sent to the Company, will be mailed,
delivered or sent by facsimile transmission and confirmed to it at 0000 Xxxxx
Xxxxxx, XXXXX, Xxxxxxx, XX 00000, Attention: Treasurer and General Counsel,
facsimile number (000) 000-0000; PROVIDED, HOWEVER, that any notice to an
Underwriter pursuant to Section 5 will be sent by facsimile transmission or
delivered and confirmed to such Underwriter.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 5, and no other person will have any
right or obligation hereunder.
12. REPRESENTATION OF UNDERWRITERS. CSFB may act for the several
Underwriters in connection with this purchase, and any action under this
Agreement taken by CSFB will be binding upon all the Underwriters.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
15. JURISDICTION. Each of the parties hereto agrees that any legal
suit, action or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby may be instituted in any U.S. federal or New
York State court in the Borough of Manhattan in the City of New York and each of
the parties hereto hereby irrevocably waives any objection which it may now or
hereafter have to the laying of venue of any such proceeding, and irrevocably
submits to the jurisdiction of such courts, with respect to actions brought
against it as defendant, in any suit, action or proceeding. Each of the parties
to this Agreement agrees that a final judgment in any such suit, action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law in accordance with
applicable law.
16. LIBOR FOR INITIAL INTEREST PERIOD. The interest rate applicable
for the initial Interest Period ending on May 15, 2002 under the Indentures for
the Series G-1 Equipment Notes and the Deposit Agreement for the Class G-1 Trust
shall be LIBOR, determined by CSFB 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 March 21, 2002, plus the relevant Applicable Margin (as
defined in the Indentures for the Series G-1 Equipment Notes and the Deposit
Agreement for the Class G-1 Trust).
If the foregoing is in accordance with the Underwriters'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Underwriters, the Depositary and the Company in accordance with its terms.
Very truly yours,
CONTINENTAL AIRLINES, INC.
By:
--------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President - Finance
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written
CREDIT SUISSE FIRST BOSTON CORPORATION
X.X. XXXXXX SECURITIES INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXXX XXXXX BARNEY INC.
XXXXXX XXXXXXX & CO. INCORPORATED
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:
----------------------------------
Name:
Title:
By: X.X. XXXXXX SECURITIES INC.
By:
----------------------------------
Name:
Title:
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By:
----------------------------------
Name:
Title:
By: XXXXXXX XXXXX BARNEY INC.
By:
----------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, New York Branch
as Depositary
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
SCHEDULE I
(Pass Through Certificates, Series 2002-1)
CONTINENTAL AIRLINES, INC.
--------------------------
Pass Through Aggregate Final
Certificate Principal Maturity
DESIGNATION AMOUNT INTEREST RATE DATE
----------- ------ ------------- ----
2002-1G-1 $134,644,000 LIBOR + 0.45% February 15, 2013
2002-1G-2 $194,522,000 6.563% August 15, 2013
SCHEDULE II
UNDERWRITERS 2002-1G-1 2002-1G-2
------------ --------- ---------
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx $26,932,000 $38,906,000
Xxx Xxxx, XX 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx 26,928,000 38,904,000
Xxx Xxxx, XX 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx 26,928,000 38,904,000
Incorporated
World Financial Center
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx Barney Inc. 26,928,000 38,904,000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx 26,928,000 38,904,000
Xxx Xxxx, XX 00000
SCHEDULE III
CONTINENTAL AIRLINES, INC.
Underwriting commission
and other compensation: $3,000,000
Closing date, time and location: March 25, 2002
10:00 A.M.,
New York time
Xxxxxx Xxxxxxx & Xxxx LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
SCHEDULE IV
(Pass Through Certificates, Series 2002-1)
CONTINENTAL AIRLINES, INC.
--------------------------
Pass Through Aggregate Final
Certificate Principal Maturity
DESIGNATION AMOUNT DATE
----------- ------ ----
2002-1H $145,834,000 February 15, 2007
2002-1I $40,000,000 August 15, 2003
