CONTINENTAL AIRLINES, INC. Pass Through Certificates, Series 2005-ERJ1 UNDERWRITING AGREEMENT
EXECUTION
COPY
CONTINENTAL
AIRLINES, INC.
Pass
Through Certificates, Series 2005-ERJ1
September
14, 2005
Citigroup
Global Markets Inc.
000
Xxxxxxxxx Xxxxxx
Ladies
and Gentlemen:
At
the
request of Embraer - Empresa
Brasileira de Aeronáutica S.A., a Brazilian corporation ("Embraer"),
Continental Airlines, Inc., a Delaware corporation (the "Company"),
proposes that Wilmington Trust Company, as trustee under the Class A Trust
(as
defined below) (the "Trustee"),
issue
and sell to Citigroup Global Markets Inc. (the "Underwriter")
its
pass through certificates in the aggregate principal amount and with the
interest rate and final maturity date set forth on Schedule I hereto (the
"Offered
Certificates")
on the
terms and conditions stated herein.
The
Offered 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 the Offered Certificates by a Pass Through Trust Supplement to
be
dated as of the Closing Date (as defined below) (the "Trust
Supplement"),
between the Company and the Trustee (the Basic Agreement as supplemented
by such
Trust Supplement being referred to herein as the "Pass
Through Trust Agreement").
The
Trust Supplement is related to the creation and administration of the 2005-ERJ1
Pass Through Trust (the "Class A
Trust").
The
cash
proceeds of the offering of Offered Certificates by the Class A 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 Underwriter,
the Trustee and Wilmington Trust Company, as paying agent (the "Paying
Agent"),
for
the benefit of the holders of the Offered Certificates (the "Escrow
Agreement").
The
Escrow Agent will deposit such cash proceeds
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(each,
a
"Deposit")
with
Citibank, N.A. (the "Depositary")
in
accordance with a Deposit Agreement relating to the Class A Trust (the
"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 the Class A Trust, as
Subordination Agent (as hereinafter defined) and as Paying Agent, and the
Escrow
Agent. The 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 Offered Certificates and will
pay to
such holders through the Paying Agent interest accrued on the Deposits and
received by such Paying Agent pursuant to the Deposit Agreement at a rate
per
annum equal to the interest rate applicable to the Offered
Certificates.
Certain
amounts of interest payable on the Offered Certificates will be entitled
to the
benefits of a liquidity facility. Landesbank Baden-Württemberg (the
"Liquidity
Provider")
will
enter into a revolving credit agreement with respect to the Class A Trust
(the
"Liquidity
Facility")
to be
dated as of the Closing Date for the benefit of the holders of the Offered
Certificates issued by such Class A Trust. The Liquidity 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 Trustee, Wilmington Trust Company, as subordination agent and trustee
thereunder (the "Subordination
Agent"),
and
the Liquidity Provider.
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 (the "Basic
Prospectus")
and
relating to all offerings of pass through certificates under the Registration
Statement, as supplemented by the Preliminary Prospectus Supplement or the
Prospectus Supplement, as the case may be, and, in either case, including
the
documents incorporated by reference therein, is herein called, the "Preliminary
Prospectus"
or the
"Prospectus",
as
applicable, except that, if the Basic Prospectus is amended or supplemented
on
or prior to the date of the Preliminary Prospectus Supplement
or
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the
date
on which the Prospectus Supplement is first filed pursuant to Rule 424, the
terms "Preliminary
Prospectus"
and
"Prospectus"
shall
refer to the Basic Prospectus as so amended or supplemented and as supplemented
by the Preliminary Prospectus Supplement or the Prospectus Supplement, as
applicable. Any reference herein to the terms "amendment"
or
"supplement"
with
respect to the Prospectus or any Preliminary Prospectus 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, as the case may be, and incorporated therein by
reference pursuant to Item 12 of Form S-3 under the Securities Act.
Capitalized
terms not otherwise defined in this Underwriting Agreement (the "Agreement")
shall
have the meanings specified therefor in the Pass Through Trust Agreement,
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 Agreement, the Escrow Agreement, the Intercreditor Agreement,
the Liquidity Facility, the Pass Through Trust 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 the 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 the Underwriter expressly
for use therein ("Underwriter
Information"),
(B) the Embraer Information (as defined in Annex I) or (C) the Depositary
Information (as hereinafter defined) 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, at the time they were or hereafter, during
the period mentioned in Section 4(a) hereof, 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.
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(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. and Air Micronesia 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 by Continental 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,
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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 UCC or other laws in effect in any applicable jurisdiction governing
the perfection of security interests, 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 "Closing Date", as defined in such Financing Agreements (the
"Funding
Date").
(vii) This
Agreement has been duly 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), (y) that the enforceability
of
the Leases may also be limited by applicable laws which may affect the remedies
provided therein but which do not affect the validity of the Leases or make
such
remedies inadequate for the practical realization of the benefits intended
to be
provided thereby and (z) with respect to indemnification and contribution
provisions, as enforcement thereof may be limited by applicable law. 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.
(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 unaudited financial statements do not have all required footnotes. The
financial statement schedules, if any, incorporated by reference in the
Prospectus present the information required to be stated
therein.
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(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) 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.
(xii) 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.
(xiii) 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.
(xiv) 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.
(xv) 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
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aware
of
any pending investigation which might lead to such a claim that is reasonably
expected to have a Continental Material Adverse Effect.
(xvi) 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.
(xvii) The
Company is not 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"),
required to register under the Investment Company Act.
(xviii) 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.
(xix) The
Company (A) makes and keeps books, records and accounts, which, in reasonable
detail, accurately and fairly reflect the transactions and dispositions of
the
material assets of the Company and its consolidated subsidiaries and (B)
maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (1) transactions are executed in accordance with
management’s general or specific authorization; (2) transactions are recorded as
necessary: (x) to permit preparation of financial statements in conformity
with
generally accepted accounting principles or any other criteria applicable
to
such statements and (y) to maintain accountability for assets; (3) access
to material assets is permitted only in accordance with management’s general or
specific authorization; and (4) the recorded accountability for material
assets
is compared with the existing material assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(b) The
Depositary represents and warrants to, and agrees with, the Underwriter and
the
Company that:
(i) The
information pertaining to the Depositary set forth under the caption
"Description of the Deposit Agreement -- Depositary" (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 is duly organized and validly existing as a national banking
association under the laws of the United States and is duly qualified to
conduct
banking business in the State of New York,
with
corporate power and authority to own, lease and operate its property, to
conduct
its business as described in the Depositary
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Information
and to enter into and perform its obligations under this Agreement and the
Deposit Agreement.
(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 Agreement
and
for the consummation by the Depositary 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
Agreement and the consummation by the Depositary 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 executed and delivered by the Depositary, and the
Deposit Agreement will be duly executed and delivered by the Depositary on
or
prior to the Closing Date.
(vi) The
Deposit Agreement, when duly executed and delivered by the Depositary, assuming
that such Deposit Agreement has been duly authorized, executed and delivered
by,
and constitutes 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 its 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).
(c) Embraer
represents and warrants to, and agrees with, the Underwriter and the Company
that:
(i) (x)
As of
the date hereof, the Registration Statement does 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,
(y)
as of its date, the Preliminary Prospectus 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 (z)
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 statements
in or omissions from
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the
Registration Statement, the Preliminary Prospectus or the Prospectus based
upon
(A) the Continental Information (as defined in Annex I), (B) the
Underwriter Information or (C) the Depositary Information.
(ii) Each
of
Embraer and Refine, Inc. ("Refine")
has
been duly organized and is a corporation validly existing in good standing
under
the laws of its jurisdiction of incorporation or organization, with corporate
power and authority to own, lease and operate its properties, conduct its
business as currently conducted and perform its obligations under this Agreement
and under the Operative Agreements to which it is or will be a
party.
(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 Embraer of this Agreement or by Embraer or Refine of the
Operative Agreements to which either Embraer or Refine is or will be a party
and
for the performance of their respective obligations hereunder and thereunder,
as
applicable, except such as may have been obtained.
(iv) The
execution and delivery by Embraer of this Agreement and by Embraer and Refine
of
the Operative Agreements to which either Embraer or Refine is or will be
a party
and the performance of their respective obligations hereunder and thereunder
have been duly authorized by Embraer and Refine, as applicable, and will
not
violate (w) any law, governmental rule or regulation, (x) any of their
respective organizational documents, (y) any order, writ, injunction or decree
of any court or governmental agency against either Embraer or Refine, as
applicable, or (z) except to the extent that any such violation would not
have a
material adverse effect on the condition (financial or otherwise), business,
properties or results of operations of Embraer and its consolidated subsidiaries
taken as a whole or Refine, as applicable, the provisions of any indenture,
loan
agreement, contract or other instrument to which either Embraer or Refine
is a
party or is bound.
(v) This
Agreement has been duly executed and delivered by Embraer.
(vi) (1)
The
Operative Agreements to which Embraer is or will be a party, when duly executed
and delivered by Embraer, 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 Embraer enforceable in accordance with their terms
and
(2) the Operative Agreements to which Refine is or will be a party, when
duly
executed and delivered by Refine, 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 Refine enforceable in accordance with their terms,
except, in the case of both (1) and (2), (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 hereafter in effect relating to creditors' rights generally,
(y) as
enforcement thereof is
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subject
to general principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law) and (z) with respect to indemnification
and
contribution provisions, as enforcement thereof may be limited by applicable
law.
(vii) On
or
prior to the Closing Date, the issuance of the Offered Certificates will
be duly
authorized by the Trustee. When duly executed, authenticated, issued and
delivered in the manner provided for in the Pass Through Trust Agreement
and
sold and paid for as provided in this Agreement, the Offered Certificates
will
be legally and validly issued and will be entitled to the benefits of the
Pass
Through Trust Agreement; and when executed, authenticated, issued and delivered
in the manner provided for in the Escrow Agreement, the Escrow Receipts will
be
legally and validly issued and will be entitled to the benefits of the Escrow
Agreement.
(viii) The
Class
A Trust is not an "investment company", or an entity "controlled" by an
"investment company", within the meaning of the Investment Company Act, required
to register under the Investment Company Act; and after giving effect to
the
offering and sale of the Offered Certificates and the application of the
proceeds thereof as described in the Prospectus, the Class A Trust will not
be,
nor will the escrow arrangement contemplated by the Escrow Agreement 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.
(ix) The
Offered Certificates, this Agreement and the Operative Agreements will 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).
(x) The
information provided by Embraer to each of Aviation Specialists Group, Inc.
("ASG"),
BACK
Aviation Solutions ("BACK")
and BK
Associates, Inc. ("BK"
and,
together with ASG and BACK, the "Appraisers")
for
use by the Appraisers in preparation of their respective reports relating
to the
Aircraft, dated as of August 18, 2005, August 18, 2005 and August 25, 2005,
respectively, taken as a whole with respect to each such report, did not
contain
an untrue statement of material fact or omit to state a material fact necessary
to make such information not misleading.
(d) The
parties agree that any certificate signed by a duly authorized officer of
the
Company and delivered to the Underwriter, or to counsel for the Underwriter,
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 Underwriter 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 Trustee to sell to the Underwriter, and the Underwriter agrees
to
purchase from the Trustee, at a purchase price of 100% of the
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principal
amount thereof, the aggregate principal amount of Offered Certificates.
Concurrently with the issuance of the Offered Certificates, the Escrow Agent
shall issue and deliver to the Trustee the Escrow Receipts in accordance
with
the terms of the Escrow Agreement, which Escrow Receipts shall be attached
to
the related Offered Certificates.
(b) The
Company is advised by the Underwriter that the Underwriter proposes 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 the
Underwriter’s judgment is advisable. The Company is further advised by the
Underwriter 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 Underwriter
at
concessions not in excess of the concessions set forth in the Prospectus,
and
that the Underwriter 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 Underwriter for its
commitments and obligations hereunder in respect of the Offered Certificates,
including the undertakings to distribute the Offered Certificates, Embraer
will
pay to the Underwriter the amount set forth in Schedule II hereto. 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 Underwriter.
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 September 22, 2005
or such
other date, time and place as may be agreed upon by the Company and the
Underwriter (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
the Class A Trust shall be made to Citigroup's account at The Depository
Trust
Company ("DTC")
for
the account of the Underwriter against payment by the Underwriter of the
purchase price thereof. Payment for the Offered Certificates issued by the
Class
A Trust and the related Escrow Receipts attached thereto shall be made by
the
Underwriter by wire transfer of immediately available funds to the accounts
and
in the manner specified in the Escrow Agreement (provided,
that if
the Company notifies the Underwriter that a Funding 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 the Class A Trust shall be in the form of one or more
fully
registered global Offered Certificates, and shall be deposited with the 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 the Underwriter in New York, New
York
not later than 1:00 P.M. on the business day prior to the Closing
Date.
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3. Conditions
of Underwriter's Obligations.
The
obligations of the Underwriter 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, the Underwriter shall have received an opinion of Xxxxxx Xxxxxxx
& Xxxx LLP, as counsel for the Company, dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriter and substantially to
the
effect set forth in Exhibit A hereto.
(c) On
the
Closing Date, the Underwriter shall have received an opinion of the General
Counsel of the Company, dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriter and substantially to the effect set forth
in
Exhibit B hereto.
(d) On
the
Closing Date, the Underwriter 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 the Underwriter and substantially
to
the effect set forth in Exhibit C hereto.
(e) On
the
Closing Date, the Underwriter shall have received an opinion of Xxx Xxxxxxx
& Xxxxxxx P.C., counsel for the Escrow Agent, dated the Closing Date, in
form and substance reasonably satisfactory to the Underwriter and substantially
to the effect set forth in Exhibit D hereto.
(f) On
the
Closing Date, the Underwriter shall have received an opinion of in-house
counsel
for Landesbank
Baden-Württemberg,
as the
Liquidity Provider, dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriter and substantially to the effect set forth
in
Exhibit E hereto.
(g) On
the
Closing Date, the Underwriter shall have received an opinion of Milbank,
Tweed,
Xxxxxx & XxXxxx LLP, special New York counsel for the Liquidity Provider,
dated the Closing Date, in form and substance reasonably satisfactory to
the
Underwriter and substantially to the effect set forth in Exhibit F
hereto.
(h) On
the
Closing Date, the Underwriter shall have received an opinion of in-house
counsel
for the Depositary, dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriter and substantially to the effect set forth
in
Exhibit G hereto.
(i) On
the
Closing Date, the Underwriter shall have received an opinion of Xxxxxxxxx,
Xxxxxxx, Xxxx & Xxxxx XXX, special New York counsel for the
Depositary,
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dated
the
Closing Date, in form and substance reasonably satisfactory to the Underwriter
and substantially to the effect set forth in Exhibit H hereto.
(j) On
the
Closing Date, the Underwriter shall have received an opinion of Xxxxxx Xxxxxx
Xxxxxxxx LLP, special New York counsel for Embraer, dated the Closing Date,
in
form and substance reasonably satisfactory to the Underwriter and substantially
to the effect set forth in Exhibit I hereto.
(k) On
the
Closing Date, the Underwriter shall have received an opinion of Xxxxxx Xxxxxx,
in-house counsel for Embraer, dated the Closing Date, in form and substance
reasonably satisfactory to the Underwriter and substantially to the effect
set
forth in Exhibit J hereto.
(l) On
the
Closing Date, the Underwriter shall have received an opinion of Xxxxxxx,
Tweed,
Xxxxxx & XxXxxx LLP, counsel for the Underwriter, 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
Underwriter may reasonably require.
(m) 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 the
Underwriter’s judgment, is material and adverse and that makes it, in the
Underwriter’s 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.
(n) The
Underwriter 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.
(o) The
Underwriter shall have received from Ernst & Young LLP a letter, dated the
date hereof, in form and substance satisfactory to the Underwriter.
(p) 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
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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).
(q) Each
of
the Appraisers shall have furnished to the Underwriter 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.
(r) At
the
Closing Date, each of the Operative Agreements (other than 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
Underwriter shall have received a certificate of the President or a Vice
President of the Company, dated as of the Closing Date, to such effect.
(s) On
the
Closing Date, the Offered Certificates shall be rated (x) not lower than
"BBB-" by Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., and (y) not lower than "Ba2" by Xxxxx'x Investors Service,
Inc.
(t) 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).
(u) The
Underwriter shall have received from Ernst & Young LLP a letter, dated the
Closing Date, which meets the requirements of subsection (o) 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.
(v) The
Underwriter shall have received on the Closing Date a certificate, dated
the
Closing Date and signed by the President or any Vice President of Embraer,
to
the effect that the representations and warranties of Embraer 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) and that Embraer
has performed all its obligations to be performed hereunder on or prior to
the
Closing Date.
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The
Company or Embraer, as applicable, will furnish the Underwriter with such
conformed copies of such opinions, certificates, letters and documents as
the
Underwriter may reasonably request.
4. Certain
Covenants of the Company.
The
Company covenants with the Underwriter as follows:
(a) During
the period described in the following sentence of this Section 4(a), the
Company
shall advise the Underwriter 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 the consent of the Underwriter,
which consent will not be unreasonably withheld. If, at any time after the
public offering of the Offered Certificates, the Prospectus is required by
law
to be delivered in connection with sales of the Offered Certificates by the
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 Embraer's expense, to the Underwriter and to the
dealers
(whose names and addresses the Underwriter will furnish to the Company) to
which
Offered Certificates may have been sold by the Underwriter 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 the
Underwriter immediately of (i) the effectiveness of any amendment to the
Registration Statement, (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, (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))
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30
endeavor,
in cooperation with the Underwriter, 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
the Underwriter 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 the
Underwriter 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 the Underwriter
and the principal amount of the Offered Certificates, the price at which
the
Offered Certificates are to be purchased by the Underwriter from the Trustee,
any initial public offering price, any selling concession and reallowance
and
any delayed delivery arrangements, and such other information as the Underwriter
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 Underwriter, 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 the Underwriter reasonably designates 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 jurisdiction.
(f) During
the period of ten years after the Closing Date, the Company will promptly
furnish to the Underwriter, 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, the Company shall not, without
the prior written consent of the Underwriter, 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
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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 and Embraer agree that the Company (solely to the extent set forth
in
proviso (ii) below) and Embraer, subject to proviso (iii) below, will indemnify
and hold harmless the Underwriter, and each Person, if any, who controls
the
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 the 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, and Embraer
will also indemnify and hold harmless the Underwriter, and each Person, if
any,
who controls the 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
any losses, claims, damages or liabilities (including, without limitation,
any
legal or other expenses reasonably incurred by the Underwriter or any such
controlling person in connection with defending or investigating any such
action
or claim) caused by any statement (oral or written) with respect to the offer
and sale of the Offered Certificates made by Embraer, any of its affiliates
or
any of their respective directors, officers, employees or agents, except
to the
extent expressly included in the Continental Information, in each case, except
insofar as any of the aforementioned losses, claims, damages or liabilities
are
caused by any such untrue statement or omission or alleged untrue statement
or
omission based upon the Depositary Information or the Underwriter Information;
provided,
however,
that
(i) the foregoing indemnity agreement with respect to the Preliminary Prospectus
shall not inure to the benefit of the Underwriter, or to the benefit of any
person controlling the 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 the 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), (ii) the Company
shall
be obligated under this Section 5 only with respect to the Continental
Information and then only to the extent that a court of competent jurisdiction
makes a Final Determination that such losses, claims, damages or liabilities
arise out of or are caused by an untrue statement of a material fact contained
in or omission of a material fact from the Continental Information (such
Final
Determination, a "Final
Adverse Determination")
and
(iii) Embraer shall be obligated under this Section 5 to the extent that
the
Company is not obligated pursuant to the foregoing clause (ii). "Final
Determination"
shall
mean a determination which has not been stayed or reversed and which has
become
final and non-appealable in accordance with applicable law.
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The
provisions of this Section 5 shall not affect any agreements between the
Company, Embraer or any of their respective affiliates for the sharing of,
or
otherwise allocating, costs and expenses.
(b) The
Underwriter agrees to indemnify and hold harmless each of Embraer and the
Company, each of their respective directors, each of the officers of the
Company
who signed the Registration Statement and each person, if any, who controls
the
Company or Embraer, as the case may be, 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 each of the Company and Embraer to the Underwriter
but only with reference to the Underwriter Information and without giving
effect
to the proviso in Section 5(a).
(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"),
and,
if such proceeding involves any Continental Information, the Company, in
writing. The indemnifying party, upon request of the indemnified party, shall,
and the indemnifying party, or, if such proceeding involves any Continental
Information, the Company, may elect (any election by the Company to supersede
any election by Embraer) to, retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party (or the Company as the case may be) may designate in such
proceeding and the indemnifying party (or, if the Company elects to designate
counsel, Embraer) shall pay the fees and disbursements of such counsel related
to such proceeding (provided that if the Company has elected to designate
counsel in such proceeding and there is a Final Adverse Determination in
such
proceeding, then the Company shall reimburse Embraer for such fees and expenses
of such counsel theretofore paid by it in the same proportion as the Company
is
responsible for any judgment in such proceeding pursuant to Section 5(a)).
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 the Underwriter in the case of parties indemnified pursuant to
paragraph (a) above and by the Company after consultation with Embraer 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
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settlement
or judgment, including if such settlement is consented to prior to a Final
Adverse Determination. 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 (or, if such proceeding concerns the Continental Information, the Company)
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 (provided that the Company may not so effect any such
settlement or compromise unless either (x) Embraer has consented thereto,
which
consent shall not be unreasonably withheld or delayed or (y) the Company
agrees
in its discretion that such settlement or compromise shall be at its expense).
For the avoidance of doubt, the parties acknowledge and agree that, unless
and
until (and then only to the extent that) there is a Final Adverse Determination
with respect to any proceeding described in this paragraph, the "indemnifying
party" with respect to such proceeding shall be Embraer and not the Company,
notwithstanding the Company's rights to designate counsel, and effect a
settlement or compromise, with respect to such proceeding. No indemnifying
party
shall (and, if such proceeding concerns the Continental Information, the
Company
shall not), 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 or Embraer, as the case may be,
on the
one hand, and the Underwriter, on the other hand, from the offering of such
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 or Embraer, as the case may be, on the
one
hand and the Underwriter 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 Embraer on the one hand and the Underwriter on the other hand in connection
with the offering of such Offered Certificates shall be deemed to be in the
same
respective proportions as the proceeds from the offering of such Offered
Certificates received by the Class A Trust (before deducting expenses) less
total underwriting discounts and commissions received by the Underwriter,
and
the total underwriting discounts and commissions received by the
Underwriter,
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in
each
case as set forth on the cover of the Prospectus, bear to the aggregate public
offering price of such Offered Certificates (it being acknowledged that the
Company shall be deemed for purposes of this paragraph to have received no
benefits from the offering). The relative fault of the Company or Embraer,
as
the case may be, on the one hand and of the Underwriter 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 the Continental Information, in the case of the
Company, other information supplied by the Company or Embraer, as the case
may
be, in the case of Embraer, or Underwriter Information, in the case of the
Underwriter, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) The
Company, Embraer and the Underwriter agree that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by
pro rata
allocation 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, the Underwriter shall not 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 the 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 and Embraer
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 the Underwriter or any person controlling
the Underwriter or by or on behalf of either the Company or Embraer, their
respective officers or directors or any person controlling the Company or
Embraer, 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. Survival
of Certain Representations and Obligations.
The
respective indemnities, agreements, representations, warranties and other
statements of the Company, Embraer or their respective officers and of the
Underwriter 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
the Underwriter, the Company, Embraer 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 Underwriter is not consummated,
Embraer shall remain responsible for the expenses to be paid or reimbursed
by it
pursuant to Section 8 and the respective obligations of the Company, Embraer
and
the Underwriter pursuant to Section 5 shall remain in effect. If the purchase
of
the Offered Certificates by the Underwriter
Page 20
of
30
is
not
consummated for any reason other than solely because of the occurrence of
the
termination of the Agreement pursuant to Section 7, Embraer will reimburse
the Underwriter 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 8.
7. Termination.
This
Agreement shall be subject to termination by notice given by the Underwriter
to
the Company and Embraer, 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 the
Underwriter’s 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 the Underwriter’s judgment, impracticable to market the Offered
Certificates on the terms and in the manner contemplated in the
Prospectus.
8. Payment
of Expenses.
As
among Embraer, the Company and the Underwriter, Embraer shall pay all expenses
incidental to the performance of the Company's and Embraer'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 the Underwriter reasonably designate
(including filing fees and fees and disbursements of counsel for the Underwriter
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 Underwriter may designate and (E) the preparation and
distribution of any blue sky or legal investment memorandum by Underwriter’s
counsel;
(ii) expenses
incurred in connection with the preparation and distribution to the Underwriter
and the dealers (whose names and addresses the Underwriter will furnish to
the
Company) to which Offered Certificates may have been sold by the Underwriter
on
its behalf and to any other dealers upon request, either of (A) amendments
to the Registration Statement or amendments or supplements to the Prospectus
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 so that the Registration Statement or the
Page
21
of
30
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) the
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, of the Preliminary Prospectus and the
Prospectus and any amendments thereof and supplements thereto, and the cost
of
furnishing copies thereof to the Underwriter;
(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
Underwriter;
(vi) reasonable
fees and disbursements of the counsel and accountants for the
Company;
(vii) to
the
extent Embraer 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 Agent, the Trustee, the Escrow Agent, the Depositary, the Liquidity
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 Underwriter;
(x) all
fees
and expenses relating to appraisals of the Aircraft; and
(xi) all
other
reasonable out-of-pocket expenses incurred by the Underwriter in connection
with
the transactions contemplated by this Agreement; and
(xii) except
as
otherwise provided in the foregoing clauses (i) through (xi), all other expenses
incidental to the performance of the Company's obligations under this Agreement,
other than pursuant to Section 5.
The
provisions of this Section 8 shall not affect any agreements between the
Company, Embraer and any of their respective affiliates for the sharing of,
or
otherwise allocating, costs and expenses.
9. Notices.
All
communications hereunder will be in writing and, if sent to the Underwriter,
will be mailed, delivered or sent by facsimile transmission and confirmed
to it
at
Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, 0xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000,
Page 22
of
30
Attention:
Xxxx Xxx, facsimile
number (000) 000-0000,
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, and if sent
to
Embraer, will be mailed, delivered or sent by facsimile transmission and
confirmed to it at Av.
Brigadeiro Xxxxx Xxxx, 2170, 12227-901 São Xxxx dos Xxxxxx, X.X., Brazil,
Attention: Senior Vice President Sales Financing & Asset Management,
facsimile number x00-00-0000-0000, with a copy to Xxxxxx Xxxxxx Xxxxxxxx
LLP,
0000 Xxxxxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X. 00000,
Attention: Xxxxxxx X. Xxxxx, facsimile number (000) 000-0000;
provided,
however,
that
any notice to the Underwriter pursuant to Section 5 will be sent by facsimile
transmission or delivered and confirmed to the Underwriter.
10. 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.
11. 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.
12. APPLICABLE
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK OTHER THAN ANY LAW WHICH WOULD REQUIRE THE APPLICATION
OF A
LAW OF A DIFFERENT JURISDICTION.
13. Submission
to Jurisdiction; Venue; Appointment of Agent.
(a) Each
party hereto hereby irrevocably agrees, accepts and submits itself to the
non-exclusive jurisdiction of the courts of the State of New York in the
City
and County of New York and of the United States for the Southern District
of New
York, in connection with any legal action, suit or proceeding with respect
to
any matter relating to or arising out of or in connection with this Agreement.
Each of the parties to this Agreement agrees that a final action in any such
suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other lawful
manner.
(b) Each
party hereto hereby irrevocably waives, to the fullest extent permitted by
applicable law, and agrees not to assert, by stay of motion, as a defense,
or
otherwise, in any legal action or proceeding brought hereunder in any of
the
above-named courts, that such action or proceeding is brought in an inconvenient
forum, or that venue for the action or proceeding is improper.
(c) To
the
fullest extent permitted by applicable law, each party hereto hereby waives
its
respective rights to a jury trial or any claim or cause of action in any
court
in any jurisdiction based upon or arising out of or relating to this
Agreement.
Page 23
of
30
(d) Embraer
hereby irrevocably designates and appoints Corporation Services Company,
0000
Xxxxxx xx xxx Xxxxxxxx, 00xx
Xxxxx,
Xxx Xxxx, XX 00000 (the "Process
Agent"),
as
the authorized agent of Embraer upon whom process may be served in any such
suit
or proceeding, it being understood that the designation and appointment of
the
Process Agent as such authorized agent shall become effective immediately
without any further action on the part of Embraer. Embraer represents to
the
Underwriter and the Company that it has notified the Process Agent of such
designation and appointment and that the Process Agent has accepted the same
in
writing. Embraer hereby irrevocably authorizes and directs the Process Agent
to
accept such service. Embraer further agrees that service of process upon
the
Process Agent and written notice of said service to Embraer mailed by
first-class mail or delivered to the Process Agent, shall be deemed in every
respect effective service of process upon Embraer in any such suit or
proceeding. Nothing herein shall affect the right of the Underwriter or the
Company, or any person controlling the Underwriter or the Company, to serve
process in any
other
manner permitted by law.
14. Sovereign
Immunity.
Each
party hereto hereby irrevocably agrees that, to the extent that it or any
of its
assets now has or may hereafter acquire any right of immunity as against
any
other party hereto or its respective successors and assigns, whether
characterized as sovereign immunity or otherwise, from any legal proceedings,
whether in the United States or elsewhere, arising out of this Agreement
or the
subject matter hereof or any of the transactions contemplated hereby brought
by
any of the parties hereto or their successors or assigns, including, without
limitation, immunity from service of process, immunity from jurisdiction
or
judgment of any court or tribunal, immunity from execution of a judgment,
and
immunity of any of its assets from attachment in aid of execution upon a
judgment, it hereby expressly and irrevocably waives and agrees not to assert
any such immunity and such waiver shall be irrevocable and not subject to
withdrawal in any jurisdiction, including, without limitation, under the
United
States Foreign Sovereign
Immunities Act of 1976.
15. Currency
Indemnity.
In the
event of a judgment, order or award being rendered by any court or tribunal
for
the payment of any amounts owing to any party hereto (the "Payee")
under
this Agreement or for the payment of damages in respect of a judgment or
order
of another court or tribunal for the payment of such amount or damages, such
judgment, order or award being expressed in a currency (the "Judgment
Currency")
other
than United States dollars (the "Agreed
Currency"),
each
party hereto obligated to pay such amounts owing (each, a "Payor")
agrees, to the fullest extent permitted by applicable law, (a) that its
obligations in respect of any such amounts owing shall be discharged only
to the
extent that on the business day following the Payee's receipt of any sum
adjudged in the Judgment Currency the Payee may in accordance with the normal
banking procedures purchase the Agreed Currency with the Judgment Currency
and
(b) to indemnify and hold harmless the Payee against any deficiency in terms
of
the Agreed Currency in the amounts actually received by the Payee following
any
such purchase (after deduction of any premiums and costs of exchange payable
in
connection with the purchase of, or conversion into, the Agreed Currency).
The
indemnity set forth in the preceding sentence shall (notwithstanding any
judgment referred to in the preceding sentence) constitute an obligation
of each
Payor separate and independent from its other obligations hereunder and shall
apply irrespective of any indulgence granted by the Payee.
Page 24
of
30
16. No
Fiduciary Duty.
Each of
the Company and Embraer hereby acknowledges that (a) the Underwriter is acting
as principal and not as an agent or fiduciary of the Company or Embraer and
(b)
their engagement of the Underwriter in connection with the transactions
contemplated hereby is as an independent contractor and not in any other
capacity. Furthermore, each of the Company and Embraer agrees that it is
solely
responsible for making its own judgments in connection with the transactions
contemplated hereby (irrespective of whether the Underwriter has advised
or is
currently advising the Company or Embraer on related or other
matters).
Page 25
of
30
If
the
foregoing is in accordance with the Underwriter’s 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 Underwriter, the
Depositary, Embraer and the Company in accordance with its terms.
Very
truly yours,
CONTINENTAL
AIRLINES, INC.
By:_______________________________
Name:
Title:
EMBRAER
-
EMPRESA BRASILEIRA DE AERONÁUTICA S.A.
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
The
foregoing Underwriting Agreement
is
xxxxxx
confirmed and accepted
as
of the
date first above written
By: CITIGROUP
GLOBAL MARKETS INC.
By:_______________________________
Name:
Title:
Page 26
of
30
CITIBANK,
N.A.,
as
Depositary
By:_______________________________
Name:
Title:
Page 27
of
30
SCHEDULE I
(Pass
Through Certificates, Series 2005-ERJ1)
CONTINENTAL
AIRLINES, INC.
|
Pass
Through
Certificate
Designation
|
Aggregate
Principal
Amount
|
Interest
Rate
|
Final
Maturity
Date
|
|
2005-ERJ1
|
$311,010,000
|
9.798%
|
October
1, 2022
|
Page 28
of
30
SCHEDULE II
CONTINENTAL
AIRLINES, INC.
|
Underwriting
commission
and
other compensation:
|
$2,021,565.00
|
|
Closing
date, time and location:
|
September
22, 2005
10:00 A.M.,
New
York time
Xxxxxx
Xxxxxxx & Xxxx LLP
Xxx
Xxxxxxx Xxxx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Page 29
of
30
ANNEX
I
For
purposes of the Underwriting Agreement, "Continental
Information"
shall
consist of the following information:
(i) with
respect to the Basic Prospectus, all information included therein and all
documents deemed to be incorporated by reference therein (and exhibits to
such
documents if so incorporated), but excluding the Basic Agreement and any
documents filed with the Commission subsequent to the Closing Date in connection
with the transactions contemplated by this Agreement;
(ii) with
respect to the Registration Statement, all information included therein and
all
documents deemed to be incorporated by reference therein (and exhibits to
such
documents if so incorporated), but excluding the Basic Agreement and any
documents filed with the Commission subsequent to the Closing Date in connection
with the transactions contemplated by this Agreement; and
(iii) with
respect to the Preliminary Prospectus Supplement and the Prospectus Supplement,
the statements set forth in the following sections:
(a) "Summary
Financial and Operating Data";
(b) "Risk
Factors--Risk Factors Relating to the Company" and "Risk Factors--Risk Factors
Relating to the Airline Industry";
(c) "The
Company"; and
(d) "Incorporation
of Certain Documents by Reference", and all documents deemed to be incorporated
by reference in the Preliminary Prospectus Supplement or Prospectus Supplement,
as the case may be, as specified in "Incorporation of Certain Documents by
Reference" (and exhibits to such documents if so incorporated), but excluding
the Basic Agreement and any documents filed with the Commission subsequent
to
the Closing Date in connection with the transactions contemplated by this
Agreement.
For
purposes of the Underwriting Agreement, "Embraer
Information"
shall
consist of all of the information in the Registration Statement, the Basic
Prospectus, the Preliminary Prospectus Supplement and the Prospectus Supplement
other than the Continental Information.
Page 30 of 30
