REFERENCE AGENCY AGREEMENT
REFERENCE AGENCY AGREEMENT, dated as of December 6, 2002 (this
"AGREEMENT"), between Continental Airlines, Inc., a Delaware corporation (the
"COMPANY"), Wilmington Trust Company, a Delaware banking corporation ("WTC"), as
Trustee under the Indenture referred to below, and WTC, as reference agent
hereunder (the "REFERENCE AGENT").
W I T N E S S E T H:
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WHEREAS, certain terms used herein have the defined meanings as provided in
Section 1 below;
WHEREAS, concurrently with the execution and delivery of this Agreement,
the Company is entering into the Indenture, dated as of the date hereof (the
"INDENTURE"), with WTC, as Trustee, Xxxxxx Xxxxxxx Capital Services Inc., as
Liquidity Provider, and MBIA Insurance Corporation, as Policy Provider;
WHEREAS, the Indenture contemplates the issuance by the Company of its
Floating Rate Secured Notes due 2007 (the "SECURITIES");
WHEREAS, the Company and the Initial Purchaser have entered into the
Purchase Agreement, which provides for the issuance of the Securities; and
WHEREAS, the Indenture provides that the Securities to be issued thereunder
bear interest at a rate per annum based on LIBOR, as determined pursuant to this
Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein, all capitalized
terms used but not defined herein have the meanings assigned to such terms in
the Indenture. The conventions of construction and usage set forth in the
Indenture are incorporated by reference herein. In addition, the following terms
shall have the meanings specified below:
"INTEREST PAYMENT DATE" means March 1, June 1, September 1 and December 1
of each year so long as any Security is outstanding (commencing on March 1,
2003), PROVIDED that if any such day is not a Business Day, then the relevant
Interest Payment Date shall be the next succeeding Business Day.
"INTEREST PERIOD" means (i) in the case of the first Interest Period, the
period commencing on (and including) the Closing Date and ending on (but
excluding) the first Interest Payment Date following such date and (ii) in the
case of each subsequent Interest Period, the period commencing on (and
including) the last day of the immediately preceding Interest Period, and ending
on (but excluding) the next Interest Payment Date.
"INTEREST RATE DETERMINATION DATE" means, with respect to any Interest
Period, the second London Banking Day prior to the first day of such Interest
Period.
"LIBOR" means the rate determined pursuant to Section 6(b).
"LONDON BANKING DAY" means any day on which commercial banks are open for
general business (including dealings in foreign exchange and foreign currency
deposits) in London, England.
"REFERENCE BANKS" means Barclays Bank, JPMorgan Chase Bank and Deutsche
Bank (or, if any such bank is not at the relevant date a major bank in the
London interbank market, another major bank in the London interbank market in
lieu thereof selected by the Reference Agent in good faith and in a commercially
reasonable manner).
"REPRESENTATIVE AMOUNT" means an amount that is representative for a single
transaction in the London interbank market at the relevant time.
"TELERATE" means page 3750 on the Telerate Service (or such other page as
may replace that page on that service, or such other service as may be nominated
by the British Banker's Association for the purpose of displaying rates or
prices comparable to that).
SECTION 2. APPOINTMENT OF REFERENCE AGENT. The Company hereby appoints WTC
as the Reference Agent, and WTC hereby accepts such appointment and agrees to
perform the duties and obligations of Reference Agent set forth in Section 6.
SECTION 3. STATUS OF REFERENCE AGENT. Any acts taken by the Reference Agent
under this Agreement, including the calculation of any LIBOR, shall be deemed to
have been taken by the Reference Agent solely in its capacity as an agent acting
on behalf of the Company and shall not create or imply any obligation to, or any
agency, fiduciary or trust relationship with, any of the owners or holders of
the Securities.
SECTION 4. REFERENCE AGENT FEES AND EXPENSES. In consideration of the
Reference Agent's performance of the services provided for under this Agreement,
the Company shall pay to the Reference Agent an annual fee set forth under a
separate agreement between the Company and WTC. In addition, the Company shall
reimburse the Reference Agent for all reasonable out-of-pocket expenses,
disbursements and advances (including reasonable legal fees and expenses)
incurred or made by the Reference Agent from time to time in connection with the
services rendered by it under this Agreement, except any expenses, disbursements
or advances attributable to its negligence or wilful misconduct.
SECTION 5. RIGHTS AND LIABILITIES OF REFERENCE AGENT. In the absence of
negligence or wilful misconduct on the part of the Reference Agent, its
directors, officers, employees and agents, such persons may conclusively rely,
as to the truth of the statements expressed in, and shall be fully protected and
shall incur no liability for, or in respect of, any action taken, omitted to be
taken, or suffered to be taken by it, in reliance upon, any written order,
instruction, notice, request, direction, statement, certificate, consent,
report, affidavit or other instrument, paper, document or communication,
reasonably believed by it in good faith to be genuine, from the Company and
conforming to the requirements of this Agreement. Any written order,
instruction, notice, request, direction, statement, certificate, consent,
report, affidavit or other instrument, paper, document or communication from the
Company or given by it and sent, delivered or directed to the Reference Agent
under, pursuant to, or as permitted by, any provision of this Agreement shall be
sufficient for purposes of this Agreement if such written order, instruction,
notice, request, direction, statement, certificate, consent, report, affidavit
or other instrument, paper, document or communication is in writing and signed
by any officer of the Company. The Reference Agent may consult with counsel
satisfactory to it and the advice (to be confirmed in writing) or opinion of
such counsel shall constitute full and complete authorization and protection of
the Reference Agent with respect to any action taken, omitted to be taken, or
suffered to be taken by it hereunder in good faith and in accordance with and in
reliance upon the advice (to be confirmed in writing) or opinion of such
counsel. The Reference Agent shall not be liable for any error resulting from
use of or reliance on a source or publication required to be used under Section
6 to the extent such use of or reliance on such source or publication is
contemplated by Section 6.
SECTION 6. DUTIES OF REFERENCE AGENT. (a) The duties and obligations of the
Reference Agent shall be determined solely by the express provisions of this
Agreement, and no implied covenants or obligations shall be read into this
Agreement against the Reference Agent. Subject to their duty to act without
negligence, neither the Reference Agent nor its directors, officers, employees
and agents guarantee the correctness or completeness of any data or other
information furnished hereunder.
(b) For the purpose of calculating the Debt Rate payable on the Securities
"LIBOR" for each Interest Period that commences after the Closing Date (it being
understood that the Debt Rate for the Interest Period commencing on the Closing
Date shall be determined pursuant to the Purchase Agreement) shall mean the rate
determined in accordance with the following provisions:
(i) The Reference Agent will determine LIBOR for each such Interest
Period as the rate for deposits in U.S. Dollars for a period of three
months which appears on the Telerate Page 3750 as of 11:00 a.m., London
time, on the Interest Rate Determination Date for such Interest Period.
(ii) If the rate referred to in Section 6(b)(i) does not appear on the
Telerate Page 3750, the Reference Agent will determine LIBOR on the basis
of the rates at which deposits in U.S. Dollars are offered by the Reference
Banks at approximately 11:00 a.m., London time, on the Interest Rate
Determination Date for such Interest Period to prime banks in the London
interbank market for a period of three months commencing on the first day
of such Interest Period and in a Representative Amount. The Reference Agent
will request the principal London office of each of the Reference Banks to
provide a quotation of its rate. If at least two such quotations are
provided, the rate for that Interest Period will be the arithmetic mean of
the quotations. If fewer than two quotations are provided as requested, the
rate for that Interest Period will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Reference Agent in
good faith and in a commercially reasonable manner, at approximately 11:00
a.m., New York City time, on the first day of such Interest Period for
loans in U.S. Dollars to leading European banks for a period of three
months commencing on the first day of such Interest Period and in a
Representative Amount, except that, if the banks so selected by the
Reference Agent are not quoting as mentioned above, LIBOR shall be the
floating rate of interest in effect for the last preceding Interest Period.
(c) As soon as practicable after 11:00 a.m. (London time) on each Interest
Rate Determination Date, the Reference Agent will calculate the Debt Rate for
such Interest Period, which shall be applicable to the Securities. The Reference
Agent's determination of LIBOR and the Debt Rate (in the absence of negligence,
willful default, bad faith or manifest error) shall be conclusive and binding
upon all parties.
(d) As promptly as is practicable after the determination thereof, the
Reference Agent shall give notice of the applicable LIBOR, the Debt Rate and the
next Interest Payment Date to the Company, the Liquidity Provider, the Policy
Provider and the Trustee.
(e) The Reference Agent shall determine Break Amount if and when required
under the Indenture.
SECTION 7. AMENDMENT OF THE SECURITIES. The Company shall deliver to the
Reference Agent, at least three Business Days prior to the effective date of any
amendment of the interest rate terms of the Indenture, written notice of such
amendment describing the terms of such amendment in reasonable detail, and a
certification by the Company that such amendment is in compliance with the terms
of the Indenture.
SECTION 8. OWNERSHIP OF THE SECURITIES. The Reference Agent, its officers,
directors, employees and shareholders may become the owners of or acquire any
interest in any Securities, with the same rights that it or they would have if
it were not the Reference Agent, and may engage or be interested in any
financial or other transaction with the Company as freely as if it were not the
Reference Agent.
SECTION 9. TERM; TERMINATION, RESIGNATION OR REMOVAL OF REFERENCE AGENT.
(a) This Agreement shall have a noncancellable term commencing on the date
hereof and expiring on payment in full of the Securities or, if earlier,
termination of the Indenture. During such term, this Agreement shall not be
terminable by any party hereto except as expressly provided in Section 9(b).
(b) The Reference Agent may at any time resign by giving written notice to
the Company and the Trustee, specifying therein the date on which its desired
resignation shall become effective; PROVIDED that such notice shall be given no
less than 30 days prior to said effective date unless the Reference Agent, the
Company and the Trustee otherwise agree in writing. The Company may remove the
Reference Agent at any time by giving written notice to the Reference Agent and
to the holders of the Securities and specifying the effective date of such
removal, which shall be at least 30 days after the date of notice; PROVIDED,
HOWEVER, that no resignation by or removal of the Reference Agent shall become
effective prior to the date of appointment by the Company, as provided in
Section 10, of a successor reference agent and the acceptance of such
appointment by such successor reference agent; and PROVIDED, FURTHER, that in
the event that an instrument of acceptance by a successor reference agent shall
not have been delivered pursuant to Section 10 within 90 days after the giving
of such notice of resignation or removal, the Reference Agent may petition any
court of competent jurisdiction for the appointment of a successor reference
agent. The provisions of Sections 5, 11 and 13 hereof shall remain in effect
following termination of this Agreement or the earlier resignation or removal of
the Reference Agent.
SECTION 10. APPOINTMENT OF SUCCESSOR REFERENCE AGENT. In the event of the
resignation by or removal of the Reference Agent pursuant to Section 9, the
Company shall promptly appoint a successor reference agent. Any successor
reference agent appointed by the Company following resignation by or removal of
the Reference Agent pursuant to the provisions of Section 9 shall execute and
deliver to the incumbent Reference Agent, the Company and the Trustee an
instrument accepting such appointment. Thereupon, such successor reference agent
shall, without any further act, deed or conveyance, become vested with all the
authority, rights, powers, immunities, duties and obligations of the Reference
Agent and with like effect as if originally named as Reference Agent hereunder,
and the incumbent Reference Agent shall thereupon be obligated to transfer and
deliver such relevant records or copies thereof maintained by the Reference
Agent in connection with the performance of its obligations hereunder. The
Company shall notify each Rating Agency of any resignation by or removal of the
Reference Agent under Section 9 and of the appointment of and acceptance by any
successor Reference Agent pursuant to this Section 10.
SECTION 11. INDEMNIFICATION. The Company shall indemnify and hold harmless
the Reference Agent, its directors, officers, employees and agents from and
against any and all actions, claims, damages, liabilities, judgments, losses,
costs, charges and expenses (including reasonable legal fees and expenses)
relating to or arising out of actions or omissions from actions in any capacity
hereunder, except actions, claims, damages, liabilities, judgments, losses,
costs, charges and expenses caused by the negligence or wilful misconduct of the
Reference Agent, its directors, officers, employees or agents. The Reference
Agent shall be indemnified and held harmless by the Company for any error
resulting from use of or reliance on a source or publication required to be used
under Section 6. The Reference Agent shall be indemnified and held harmless by
the Company for, or in respect of, any actions taken, omitted to be taken or
suffered to be taken in good faith by the Reference Agent in reliance upon (a)
advice (to be confirmed in writing) or opinion of counsel or (b) a written
instruction from the Company.
SECTION 12. MERGER, CONSOLIDATION OR SALE OF BUSINESS BY REFERENCE AGENT.
Any corporation into which the Reference Agent may be merged or consolidated or
any corporation resulting from any merger or consolidation to which the
Reference Agent may be a party, or any corporation to which the Reference Agent
may sell or otherwise transfer all or substantially all of its assets and
corporation trust business, shall, to the extent permitted by applicable law,
become the Reference Agent under this Agreement without the execution or filing
of any paper or any further act by the parties hereto. The Reference Agent shall
give notice in writing to the Company and the Trustee of any such merger,
consolidation or sale.
SECTION 13. MISCELLANEOUS. (a) If there should develop any conflict between
the Reference Agent and any other Person relating to the rights or obligations
of the Reference Agent in connection with calculation of LIBOR or the Debt Rate,
the terms of this Agreement shall govern such rights and obligations.
(b) The Reference Agent agrees to cooperate with the Company and its
agents, employees, directors and officers, including by providing such
information as may reasonably be requested to permit the Company or such agents,
employees, directors and officers to monitor the Reference Agent's compliance
with its obligations under this Agreement.
(c) The Reference Agent shall not assign or delegate or otherwise
subcontract this Agreement or all or any part of its rights or obligations
hereunder to any Person without the prior written consent of the Company.
(d) THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE.
(e) This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page to this Agreement by telecopier shall be effective as delivery of
a manually executed counterpart of this Agreement.
[Remainder of this page is blank.]
IN WITNESS WHEREOF, this Agreement has been entered into as of the date
first set forth above.
CONTINENTAL AIRLINES, INC.
By
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Name:
Title:
WILMINGTON TRUST COMPANY, as
Reference Agent
By
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Name:
Title:
WILMINGTON TRUST COMPANY, as
Trustee
By
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Name:
Title:
