EXECUTION VERSION
CONTINENTAL AIRLINES, INC.
Pass Through Certificates, Series 2004-ERJ1
UNDERWRITING AGREEMENT
June 18, 2004
Citigroup Global Markets Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
At the request of Embraer - Empresa Brasileira de Aeronautica 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
the underwriters named in Schedule II hereto (the "UNDERWRITERS") 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 2004-ERJ1 Pass
Through Trust (the "CLASS A TRUST"). As used herein, unless the context
otherwise requires, the term "you" shall mean, collectively, Citigroup Global
Markets Inc. ("CITIGROUP") and Xxxxxx Xxxxxxx & Co. Incorporated.
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 Underwriters, 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 (each, a "DEPOSIT") with WestLB AG, acting through its New York Branch
(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 separate liquidity facilities. WestLB AG, acting
through its New York Branch ("WESTLB"), and Citicorp North America, Inc. ("CNAI"
and, together with XxxxXX, the "LIQUIDITY PROVIDERS") will each enter into a
revolving credit agreement with respect to the Class A Trust (each, a 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 obligations of CNAI
under its Liquidity Facility will be guaranteed by Citicorp (the "LIQUIDITY
PROVIDER GUARANTOR"). The Liquidity Providers 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 Providers.
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 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 Facilities, the Guarantee Agreement,
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 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 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.
(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 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 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.
(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
xxxxxx 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 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, each
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
joint stock company ("Aktiengesellschaft") under the laws of the Federal
Republic of Germany 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 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 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 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, each
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 the Registration Statement, the
Preliminary Prospectus or the Prospectus based upon (A) Continental
Information (as defined in Annex I), (B) 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 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"), AvSolutions ("AVS") and BK Associates
(together with ASG and AVS, the "APPRAISERS") for use by the Appraisers in
preparation of their respective reports relating to the Aircraft each
dated as of June 11, 2004, 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 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 Trustee to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Trustee, at a purchase price of
100% of the principal amount thereof, the aggregate principal amount of Offered
Certificates set forth opposite the name of such Underwriter in Schedule II.
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 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, Embraer will pay to Citigroup 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 June
29, 2004 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
the Class A Trust shall be made to Citigroup'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 the Class A 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
Escrow Agreement (PROVIDED, that if the Company notifies you 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 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 Citigroup,
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. Citigroup, 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, as 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 Xxx,
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
in-house counsel for XxxxXX, as a 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
in-house counsel for CNAI, as a Liquidity Provider, and Citicorp, as the
Liquidity Provider Guarantor, 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
Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York counsel to WestLB,
as a 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
Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York counsel to CNAI, as
a Liquidity Provider, and Citicorp, as the Liquidity Provider 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
in-house counsel for XxxxXX, as 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
Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York 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
Xxxxxx Xxxxxx Xxxxx Xxxxxxxx, special New York counsel for Embraer, 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
Xxxxxx Xxxxx Xxxxxxx, Esq., Brazilian in-house counsel for Embraer, dated
the Closing Date, in form and substance reasonably satisfactory to you and
substantially to the effect set forth in Exhibit L hereto.
(n) On the Closing Date, you shall have received an opinion of
Xxxxxxx, 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.
(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 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.
(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) You shall have received from Ernst & Young LLP a letter, dated
the date hereof, in form and substance satisfactory to you.
(r) 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).
(s) 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.
(t) 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 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.
(u) 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.
(v) 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).
(w) You shall have received from Ernst & Young LLP a letter, dated
the Closing Date, which meets the requirements of subsection (q) 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.
(x) You 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.
The Company or Embraer, as applicable, 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 the consent of each Underwriter, 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 Embraer's expense, to the
Underwriters and to the dealers (whose names and addresses the
Underwriters will furnish to the Company) to which Offered Certificates
may have been sold by 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, (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)) 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
Trustee, 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 jurisdiction.
(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, the
Company shall not, without the prior written consent of the Underwriters,
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 and Embraer
agree that the Company or Embraer, as set forth in provisos (ii) and (iii)
below, will 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 Depositary Information or Underwriter Information; PROVIDED, HOWEVER, that
(i) 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), (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, an "ADVERSE FINAL
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.
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) Each Underwriter agrees, severally and not jointly, 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 such Underwriter but only with reference
to the Underwriter Information provided by such Underwriter 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 an
Adverse Final 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 you 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 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 (or, if such
proceeding concerns 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 an Adverse Final Determination with respect to
any proceeding described in this paragraph, the "indemnifying party" with
respect to such proceeding (to the extent that such proceeding involves
Continental Information and indemnification is otherwise available under Section
5(a)) 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
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 Underwriters, 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 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 Embraer on the one hand and the Underwriters 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 Underwriters, and the total underwriting discounts and commissions
received by the Underwriters, 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 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
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 Underwriters, 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(d) are several in proportion to the
respective principal amount of Offered Certificates they have purchased
hereunder, and not joint.
(e) The Company, Embraer 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 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 any Underwriter or any person controlling any 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. DEFAULT OF UNDERWRITERS. If any Underwriter defaults in its
obligations to purchase Offered Certificates hereunder and the aggregate
principal amount of the Offered Certificates that such defaulting Underwriter
agreed but failed to purchase does not exceed 10% of the total principal amount
of the Offered Certificates, Citigroup may make arrangements satisfactory to the
Company for the purchase of such Offered Certificates by other persons,
including the non-defaulting Underwriter, but if no such arrangements are made
by the Closing Date, the non-defaulting Underwriter shall be obligated to
purchase the Offered Certificates that such defaulting Underwriter agreed but
failed to purchase. If any Underwriter so defaults and the aggregate principal
amount of the Offered Certificates with respect to which such default occurs
exceeds 10% of the total principal amount of the Offered Certificates and
arrangements satisfactory to Citigroup 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 the
non-defaulting Underwriter, Embraer 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, Embraer or their respective 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, 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 Underwriters is not consummated,
Embraer shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 9 and the respective obligations of the Company, Embraer 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, Embraer 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 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
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 among Embraer, the Company and the
Underwriters, 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 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 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 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
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 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 Providers 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;
(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; 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 9 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.
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 Citigroup Global Markets
Inc., 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx
Xxx, facsimile number (000) 000-0000 and c/o Morgan Xxxxxxx & Co. Incorporated,
0000 Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Equipment Finance Group, 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 Sao 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 Xxxxx Xxxxxxxx, 0000 Xxxxxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx
000, Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxxx X. Xxxxx, facsimile number (202)
298-7570; 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. Citigroup may act for the
several Underwriters in connection with this purchase, and any action under this
Agreement taken by Citigroup 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 OTHER THAN ANY
LAW WHICH WOULD REQUIRE THE APPLICATION OF A LAW OF A DIFFERENT JURISDICTION.
15. 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.
(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 Underwriters 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 Underwriters or the
Company, or any person controlling the Underwriters or the Company, to serve
process in any other manner permitted by law.
16. 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 of
America 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.
17. 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.
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, Embraer and the Company in accordance with its
terms.
Very truly yours,
CONTINENTAL AIRLINES, INC.
By:
-----------------------------------
Name:
Title:
EMBRAER - EMPRESA BRASILEIRA DE
AERONAUTICA S.A.
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written
By: CITIGROUP GLOBAL MARKETS INC.
By:
---------------------------------
Name:
Title:
By: XXXXXX XXXXXXX & CO. INCORPORATED
By:
---------------------------------
Name:
Title:
WESTLB AG,
acting through its New York Branch,
as Depositary
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
SCHEDULE I
(Pass Through Certificates, Series 2004-ERJ1)
CONTINENTAL AIRLINES, INC.
Pass Through Aggregate Final
Certificate Principal Maturity
Designation Amount Interest Rate Date
----------- ---------- ------------- ------------
2004-ERJ1 $173,629,000 9.558% March 1, 2021
SCHEDULE II
----------------------------------------------
| UNDERWRITERS | 2004-ERJ1 |
| ------------------------------|---------------|
| Citigroup Global Markets Inc. | $86,815,000 |
| 000 Xxxxxxxxx Xxxxxx x x
x Xxx Xxxx, XX 00000 | |
| ------------------------------|---------------|
| Xxxxxx Xxxxxxx & Co. | $86,814,000 |
| Incorporated | |
| 0000 Xxxxxxxx x x
x Xxx Xxxx, XX 00000 | |
----------------------------------------------
SCHEDULE III
CONTINENTAL AIRLINES, INC.
Underwriting commission
and other compensation: $2,187,725.40
Closing date, time and location: June 29, 2004
10:00 A.M.,
New York time
Xxxxxx Xxxxxxx & Xxxx LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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.
