CONTINENTAL AIRLINES, INC., ISSUER
Pass Through Certificates, Series 2000-2
UNDERWRITING AGREEMENT
November 14, 2000
Credit Suisse First Boston Corporation
Morgan Stanley & Co. Incorporated
Chase Securities Inc.
Goldman, Sachs & Co.
Salomon Smith Barney Inc.
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010-3629
Dear Sirs:
Continental Airlines, Inc., a Delaware corporation (the
"Company"), proposes that Wilmington Trust Company, as trustee under each of
the Original Trusts (as defined below) (each a "Trustee"), issue and sell to
the underwriters named in Schedule II hereto its pass through certificates in
the aggregate principal amounts and with the interest rates and final
distribution dates set forth on Schedule I hereto (the "Certificates") on the
terms and conditions stated herein.
The Certificates will be issued pursuant to a Pass Through Trust
Agreement, dated as of September 25, 1997 (the "Basic Agreement"), between
the Company and the Trustee, as supplemented with respect to the issuance of
each class of Certificates by a separate Pass Through Trust Supplement to be
dated as of the Closing Date (as defined below) (individually, an "Original
Trust Supplement"), between the Company and the Trustee (the Basic Agreement
as supplemented by each such Original Trust Supplement being referred to
herein individually as an "Original Pass Through Trust Agreement"). The
Original Trust Supplements are related to the creation and administration of
Continental Airlines Pass Through Trust 2000-2A-1-O (the "Class A-1 Trust"),
Continental Airlines Pass Through Trust 2000-2A-2-O (the "Class A-2 Trust"),
Continental Airlines Pass Through Trust, 2000-2B-O (the "Class B Trust") and
Continental Airlines Pass Through Trust 2000-2C-O (the "Class C Trust";
together with the Class A-1 Trust, the Class A-2 Trust and the Class B Trust,
the "Original Trusts"). As used herein, unless the context otherwise
requires, the term "Underwriters" shall mean the firms named as Underwriters
in Schedule II, and the term "you" shall mean Credit Suisse First Boston
Corporation ("CSFB").
The cash proceeds of the offering of Certificates by each
Original 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 First Security Bank, N.A., as escrow agent (the "Escrow
Agent"), under an Escrow and Paying Agent Agreement among the Escrow Agent,
the Underwriters, the Trustee of such Original Trust and Wilmington Trust
Company, as paying agent (the "Paying Agent"), for the benefit of the holders
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of Certificates issued by such Original Trust (each, an "Escrow Agreement").
The Escrow Agent will deposit such cash proceeds (each, a "Deposit") with
Credit Suisse First Boston, New York branch (the "Depositary"), in accordance
with a Deposit Agreement relating to such Original Trust (each, a "Deposit
Agreement"), and will withdraw Deposits upon request to allow the Trustee to
purchase Equipment Notes from time to time pursuant to a Note Purchase
Agreement to be dated as of the Closing Date (the "Note Purchase Agreement")
among the Company, Wilmington Trust Company, as Trustee of each of the
Original Trusts, as Subordination Agent (as hereinafter defined) and as
Paying Agent, and the Escrow Agent. Each Escrow Agent will issue receipts to
be attached to each related Certificate ("Escrow Receipts") representing each
holder's fractional undivided interest in amounts deposited with such Escrow
Agent with respect to the related class of Certificates and will pay to such
holders through the related Paying Agent interest accrued on the Deposits and
received by such Paying Agent pursuant to the related Deposit Agreement at a
rate per annum equal to the interest rate applicable to the corresponding
Certificates.
On the earlier of (i) the first Business Day following
February 1, 2002 or, if later, the fifth Business Day following the Delivery
Period Termination Date (as defined in the Note Purchase Agreement) and
(ii) the fifth Business Day following the occurrence of a Triggering Event
(as defined in the Intercreditor Agreement) (such Business Day, the "Trust
Transfer Date"), each of the Original Trusts will transfer and assign all of
its assets and rights to a newly-created successor trust with substantially
identical terms except as described in the Prospectus Supplement (as
hereinafter defined) (each, a "Successor Trust" and, together with the
Original Trusts, the "Trusts") governed by the Basic Agreement, as
supplemented with respect to each class of Certificates by a separate Pass
Through Trust Supplement (individually, a "Successor Trust Supplement"),
between the Company and the Trustee (the Basic Agreement, as supplemented by
each such Successor Trust Supplement, being referred to herein individually
as a "Successor Pass Through Trust Agreement" and, together with the Original
Pass Through Trust Agreements, the "Designated Agreements"). Each
Certificate outstanding on the Trust Transfer Date will represent the same
interest in the Successor Trust as the Certificate represented in the
Original Trust. Wilmington Trust Company initially will also act as trustee
of the Successor Trusts (each, a "Successor Trustee").
Certain amounts of interest payable on the Certificates will be
entitled to the benefits of separate liquidity facilities. Landesbank
Hessen-Thuringen Girozentrale (the "Liquidity Provider") will enter into
separate revolving credit agreements with respect to the Class A-1 Trust, the
Class A-2 Trust, the Class B Trust and the Class C Trust (collectively, the
"Liquidity Facilities") to be dated as of the Closing Date for the benefit of
the holders of the Certificates issued by such Original Trusts. The
Liquidity Provider and the holders of the Certificates will be entitled to
the benefits of an Intercreditor Agreement to be dated as of the Closing Date
(the "Intercreditor Agreement") among the Trustees, Wilmington Trust Company,
as subordination agent and trustee thereunder (the "Subordination Agent"),
and the Liquidity Provider.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a shelf registration statement on Form S-3 (File
No. 333-45834) 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
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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 Certificates, the terms of the offering thereof
and other matters relating to the Certificates, as further specified in
Section 4(d) hereof, will be prepared and filed together with the basic
prospectus referred to below pursuant to Rule 424 under the Securities Act
(such prospectus supplement, in the form first filed on or after the date
hereof pursuant to Rule 424, being herein referred to as the "Prospectus
Supplement" and any such prospectus supplement in the form or forms filed
prior to the filing of the Prospectus Supplement being herein referred to as
a "Preliminary Prospectus Supplement"). The basic prospectus included in the
Registration Statement and relating to all offerings of pass through
certificates under the Registration Statement, as supplemented by the
Prospectus Supplement, and including the documents incorporated by reference
therein, is herein called the "Prospectus", except that, if such basic
prospectus is amended or supplemented on or prior to the date on which the
Prospectus Supplement is first filed pursuant to Rule 424, the term
"Prospectus" shall refer to such basic prospectus as so amended or
supplemented and as supplemented by the Prospectus Supplement. Any reference
herein to the terms "amendment" or "supplement" with respect to the
Prospectus or any Preliminary Prospectus Supplement shall be deemed to refer
to and include any documents filed with the Commission under the Exchange Act
after the date the Prospectus is filed with the Commission, or the date of
such Preliminary Prospectus Supplement, as the case may be, and incorporated
therein by reference pursuant to Item 12 of Form S-3 under the Securities Act.
Capitalized terms not otherwise defined in this Underwriting
Agreement (the "Agreement") shall have the meanings specified therefor in the
Original Pass Through Trust Agreements, in the Note Purchase Agreement or in
the Intercreditor Agreement; PROVIDED that, as used in this Agreement, the
term "Operative Agreements" shall mean the Deposit Agreements, the Escrow
Agreements, the Intercreditor Agreement, the Liquidity Facilities, the
Designated Agreements, the Assignment and Assumption Agreements, 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
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which they were made, not misleading. The preceding sentence does not
apply to (x) statements in or omissions from the Registration
Statement, the Preliminary Prospectus or the Prospectus based upon (A)
written information furnished to the Company by any Underwriter through
you expressly for use therein ("Underwriter Information") or (B) 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 paragraph 4(a)
below, are filed with the Commission, complied or will comply, as the
case may be, in all material respects with the requirements of the
Exchange Act.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own, lease and operate its
property and to conduct its business as described in the Prospectus;
and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would
not have a material adverse effect on the condition (financial or
otherwise), business, properties or results of operations of the
Company and its consolidated subsidiaries taken as a whole (a
"Continental Material Adverse Effect").
(iv) Each of Continental Micronesia, Inc., Air Micronesia Inc.
and Continental Express, 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
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breach of any of the terms, conditions or provisions of, or constitute
a default under, or result in the creation or imposition of any lien,
charge or encumbrance (other than any lien, charge or encumbrance
created under any Operative Agreement) upon any property or assets of
the Company pursuant to any indenture, loan agreement, contract,
mortgage, note, lease or other instrument to which the Company is a
party or by which the Company may be bound or to which any of the
property or assets of the Company is subject, which breach, default,
lien, charge or encumbrance, individually or in the aggregate, would
have a Continental Material Adverse Effect, nor will any such
execution, delivery or performance result in any violation of the
provisions of the charter or by-laws of the Company or any statute, any
rule, regulation or order of any governmental agency or body or any
court having jurisdiction over the Company.
(vi) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
valid authorization, execution and delivery by the Company of this
Agreement and the Operative Agreements to which it is or will be a
party and for the consummation of the transactions contemplated herein
and therein, except (x) such as may be required under the Securities
Act, the Trust Indenture Act, the securities or "blue sky" or similar
laws of the various states and of foreign jurisdictions or rules and
regulations of the National Association of Securities Dealers, Inc.,
and (y) filings or recordings with the Federal Aviation Administration
(the "FAA") and under the Uniform Commercial Code as is in effect in
the State of Texas, the State of Delaware and the State of Utah, which
filings or recordings referred to in this clause (y), with respect to
any particular set of Financing Agreements, shall have been made, or
duly presented for filing or recordation, or shall be in the process of
being duly filed or filed for recordation, on or prior to the
applicable Funding Date for the Aircraft related to such Financing
Agreements.
(vii) This Agreement has been duly authorized, executed and
delivered by the Company and the Operative Agreements to which the
Company will be a party will be duly executed and delivered by the
Company on or prior to the Closing Date or the applicable Funding Date,
as the case may be.
(viii) The Operative Agreements to which the Company is or will be a
party, when duly executed and delivered by the Company, assuming that such
Operative Agreements have been duly authorized, executed and delivered by,
and constitute the legal, valid and binding obligations of, each other
party thereto, will constitute valid and binding obligations of the
Company enforceable in accordance with their terms, except (w) as
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, (x) as enforcement thereof
is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), (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, and subject, in the case of the
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Successor Pass Through Trust Agreements, to the delayed effectiveness
thereof as set forth therein. The Basic Agreement as executed is
substantially in the form filed as an exhibit to the Company's current
report on Form 8-K dated September 25, 1997 and has been duly qualified
under the Trust Indenture Act. The Certificates and the Designated
Agreements to which the Company is, or is to be, a party will conform in
all material respects to the descriptions thereof in the Prospectus.
(ix) The consolidated financial statements incorporated by
reference in the Prospectus, together with the related notes thereto,
present fairly in all material respects the financial position of the
Company and its consolidated subsidiaries at the dates indicated and
the consolidated results of operations and cash flows of the Company
and its consolidated subsidiaries for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved, except as otherwise stated therein and except
that the unaudited financial statements do not have all required
footnotes. The financial statement schedules, if any, incorporated by
reference in the Prospectus present the information required to be
stated therein.
(x) The Company is a "citizen of the United States" within the
meaning of Section 40102(a)(15) of Title 49 of the United States Code,
as amended, and holds an air carrier operating certificate issued
pursuant to Chapter 447 of Title 49 of the United States Code, as
amended, for aircraft capable of carrying 10 or more individuals or
6,000 pounds or more of cargo. All of the outstanding shares of
capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable.
(xi) On or prior to the Closing Date, the issuance of the
Certificates will be duly authorized by the Trustee. When duly
executed, authenticated, issued and delivered in the manner provided
for in the Original Pass Through Trust Agreements and sold and paid for
as provided in this Agreement, the Certificates will be legally and
validly issued and will be entitled to the benefits of the relevant
Original Pass Through Trust Agreements; based on applicable law as in
effect on the date hereof, upon the execution and delivery of the
Assignment and Assumption Agreements in accordance with the Original
Pass Through Trust Agreements, the Certificates will be legally and
validly outstanding under the related Successor Pass Through Trust
Agreements; and when executed, authenticated, issued and delivered in
the manner provided for in the Escrow Agreements, the Escrow Receipts
will be legally and validly issued and will be entitled to the benefits
of the related Escrow Agreements.
(xii) Except as disclosed in the Prospectus, the Company and the
Subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects except where the failure to have such
title would not have a Continental Material Adverse Effect; and except
as disclosed in the Prospectus, the Company and the Subsidiaries hold
any leased real or personal property under valid and enforceable leases
with no exceptions that would have a Continental Material Adverse
Effect.
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(xiii) Except as disclosed in the Prospectus, there is no action,
suit or proceeding before or by any governmental agency or body or court,
domestic or foreign, now pending or, to the knowledge of the Company,
threatened against the Company or any of its subsidiaries or any of their
respective properties that individually (or in the aggregate in the case
of any class of related lawsuits), could reasonably be expected to result
in a Continental Material Adverse Effect or that could reasonably be
expected to materially and adversely affect the consummation of the
transactions contemplated by this Agreement or the Operative Agreements.
(xiv) Except as disclosed in the Prospectus, no labor dispute
with the employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent that could reasonably be expected
to have a Continental Material Adverse Effect.
(xv) Each of the Company and the Subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits
of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to
own, lease, license and use its properties and assets and to conduct
its business in the manner described in the Prospectus, except to the
extent that the failure to so obtain, declare or file would not have a
Continental Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, (x) neither the
Company nor any of the Subsidiaries is in violation of any statute,
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances (collectively, "environmental
laws"), owns or operates any real property contaminated with any
substance that is subject to any environmental laws, or is subject to
any claim relating to any environmental laws, which violation,
contamination, liability or claim individually or in the aggregate is
reasonably expected to have a Continental Material Adverse Effect, and
(y) the Company is not aware of any pending investigation which might
lead to such a claim that is reasonably expected to have a Continental
Material Adverse Effect.
(xvii) The accountants that examined and issued an auditors'
report with respect to the consolidated financial statements of the
Company and the financial statement schedules, if any, included or
incorporated by reference in the Registration Statement are independent
public accountants within the meaning of the Securities Act.
(xviii) Neither the Company nor any of the Original Trusts is, nor
(based on applicable law as in effect on the date hereof) will any of the
Successor Trusts be, as of the execution and delivery of the Assignment
and Assumption Agreements in accordance with the Original Pass Through
Trust Agreements, an "investment company", or an entity "controlled" by an
"investment company", within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act"), in each case required to
register under the Investment Company Act; and after giving effect to the
offering and sale of the Certificates and the application of the proceeds
thereof as described in the Prospectus, neither the Original Trusts will
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be, nor (based on applicable law as in effect on the date hereof) will any
of the Successor Trusts be, as of the execution and delivery of the
Assignment and Assumption Agreements in accordance with the Original Pass
Through Trust Agreements, nor will the escrow arrangements contemplated by
the Escrow 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.
(xix) This Agreement and the other Operative Agreements to which the
Company is or will be a party will, upon execution and delivery thereof,
conform in all material respects to the descriptions thereof contained in
the Prospectus (other than, in the case of the Financing Agreements, as
described in the Prospectus).
(xx) No Appraiser is an affiliate of the Company or, to the
knowledge of the Company, has a substantial interest, direct or
indirect, in the Company. To the knowledge of the Company, none of the
officers and directors of any of such Appraisers are connected with the
Company or any of its affiliates as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar
functions.
(b) The Depositary represents and warrants to, and agrees with,
each Underwriter and the Company that:
(i) The information pertaining to the Depositary set forth
under the caption "Description of the Deposit Agreements -- Depositary"
(collectively, the "Depositary Information") in the Prospectus, as
amended and supplemented, if the Company shall have furnished any
amendment or supplement thereto, does not, and will not as of the
Closing Date, contain any untrue statement of a material fact.
(ii) The Depositary has been duly organized and is validly
existing in good standing under the laws of Switzerland and is duly
qualified to conduct banking business in the State of New York through
its New York branch, with corporate power and authority to own, lease
and operate its property, to conduct its business as described in the
Depositary Information and to enter into and perform its obligations
under this Agreement and the Deposit Agreements.
(iii) No consent, approval, authorization, or order of, or filing
with any governmental agency or body or any court is required for the
valid authorization, execution and delivery by the Depositary of this
Agreement and the Deposit Agreements and for the consummation of the
transactions contemplated herein and therein, except such as may have
been obtained.
(iv) The execution and delivery by the Depositary of this
Agreement and the Deposit Agreements and the consummation of the
transactions contemplated herein and therein have been duly authorized
by the Depositary and will not violate any law, governmental rule or
regulation or any of its organizational documents or any order, writ,
injunction or decree of any court or governmental agency against it or
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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 Agreements will be duly executed and
delivered by the Depositary on or prior to the Closing Date.
(vi) The Deposit Agreements, when duly executed and delivered by
the Depositary, assuming that such Deposit Agreements have been duly
authorized, executed and delivered by, and constitute the legal, valid
and binding obligations of, the Escrow Agent, will constitute the
legal, valid and binding obligations of the Depositary enforceable in
accordance with their terms, except (x) as enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
other similar laws now or hereinafter in effect relating to creditors'
rights generally and (y) as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law).
(vii) Payments of interest and principal in respect of the
Deposits are not subject under the laws of Switzerland or any political
subdivision thereof to any withholdings or similar charges or
deductions.
(c) The parties agree that any certificate signed by a duly
authorized officer of the Company and delivered to an Underwriter, or to
counsel for the Underwriters, on the Closing Date and in connection with this
Agreement or the offering of the 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 CERTIFICATES. (a) On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and the conditions herein set forth, the Company agrees to cause the
Trustees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Trustees, at a purchase price of 100% of the
principal amount thereof, the aggregate principal amount of Certificates of each
Pass Through Certificate designation set forth opposite the name of such
Underwriter in Schedule II. Concurrently with the issuance of the Certificates,
the Escrow Agents shall issue and deliver to the Trustees the Escrow Receipts in
accordance with the terms of the Escrow Agreements, which Escrow Receipts shall
be attached to the related Certificates.
(b) The Company is advised by you that the Underwriters propose
to make a public offering of the 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
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.
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(c) As underwriting commission and other compensation to the
Underwriters for their respective commitments and obligations hereunder in
respect of the Certificates, including their respective undertakings to
distribute the Certificates, the Company will pay to CSFB for the accounts of
the Underwriters the amount set forth in Schedule III hereto, which amount
shall be allocated among the Underwriters in the manner determined by you.
Such payment will be made on the Closing Date simultaneously with the
issuance and sale of the 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 Certificates (with attached
Escrow Receipts) shall be made at the offices of Hughes Hubbard & Reed LLP at
One Battery Park Plaza, New York, New York 10004 at 10:00 A.M. on November
28, 2000 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
Certificates (with attached Escrow Receipts) being herein called the "Closing
Date"). Delivery of the Certificates (with attached Escrow Receipts) issued
by each Original Trust shall be made to CSFB's account at The Depository
Trust Company ("DTC") for the respective accounts of the several Underwriters
against payment by the Underwriters of the purchase price thereof. Payment
for the Certificates issued by each Original Trust and the related Escrow
Receipts attached thereto shall be made by the Underwriters by wire transfer
of immediately available funds to the accounts and in the manner specified in
the related Escrow Agreements (PROVIDED, that if the Company notifies you
that a Delivery Date is occurring on the Closing Date, a portion of such
payment in the amount specified by the Company shall be paid to the accounts
and in the manner specified in the related Participation Agreement). The
Certificates (with attached Escrow Receipts) issued by each Original Trust
shall be in the form of one or more fully registered global certificates, and
shall be deposited with the related Trustee as custodian for DTC and
registered in the name of Cede & Co.
(e) The Company agrees to have the 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 you,
on its behalf and for its account, to accept delivery of, receipt for, and
make payment of the purchase price for, the Certificates (with attached
Escrow Receipts) that it has agreed to purchase. You, individually and not
as a representative, may (but shall not be obligated to) make payment of the
purchase price for the 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 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.
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(b) On the Closing Date, you shall have received an opinion of
Hughes Hubbard & Reed 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
Richards, Layton & Finger, P.A., counsel for Wilmington Trust Company,
individually and as Trustee, Subordination Agent and Paying Agent,
dated the Closing Date, in form and substance reasonably satisfactory
to you and substantially to the effect set forth in Exhibit C hereto.
(e) On the Closing Date, you shall have received an opinion of
Ray, Quinney & Nebeker, 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
Katrin Schutz and Jurgen Necker, German in-house counsel for the
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
Winthrop, Stimson, Putnam & Roberts, special New York counsel to the
Liquidity Provider, dated the Closing Date, in form and substance
reasonably satisfactory to you and substantially to the effect set
forth in Exhibit F hereto.
(h) On the Closing Date, you shall have received an opinion of
Roger Wiegley, New York in-house counsel for the Depositary, dated the
Closing Date, in form and substance reasonably satisfactory to you and
substantially to the effect set forth in Exhibit G hereto.
(i) On the Closing Date, you shall have received an opinion of
Mark Schieweck, Swiss in-house counsel for the Depositary, dated the
Closing Date, in form and substance reasonably satisfactory to you and
substantially to the effect set forth in Exhibit H hereto.
(j) On the Closing Date, you shall have received an opinion of
Milbank, Tweed, Hadley & McCloy LLP, counsel for the Underwriters,
dated as of the Closing Date, with respect to the issuance and sale of
the Certificates, the Registration Statement, the Prospectus and other
related matters as the Underwriters may reasonably require.
(k) 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
<PAGE>
material and adverse and that makes it, in your judgment, impracticable
to proceed with the completion of the public offering of the
Certificates on the terms and in the manner contemplated by the
Prospectus.
(l) 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.
(m) You shall have received from Ernst & Young LLP a letter,
dated the date hereof, in form and substance satisfactory to you.
(n) 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).
(o) 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.
(p) At the Closing Date, each of the Operative Agreements
(other than the Assignment and Assumption Agreements and the Financing
Agreements) shall have been duly executed and delivered by each of the
parties thereto; and the representations and warranties of the Company
contained in each of such executed Operative Agreements shall be true
and correct as of the Closing Date (except to the extent that they
relate solely to an earlier date, in which case they shall be true and
correct as of such earlier date) and the Underwriters shall have
received a certificate of the President or a Vice President of the
Company, dated as of the Closing Date, to such effect.
<PAGE>
(q) On the Closing Date, the Certificates shall be rated
(x) not lower than "AA+", in the case of the Certificates of the
Class A-1 Trust, not lower than "AA+", in the case of Certificates of
the Class A-2 Trust, not lower than "AA-", in the case of the
Certificates of the Class B Trust and not lower than "A-", in the case
of the Certificates of the Class C Trust, by Standard & Poor's Ratings
Services, and (y) not lower than "Aa3", in the case of the Certificates
of the Class A-1 Trust, not lower than "Aa3", in the case of the
Certificates of the Class A-2 Trust, not lower than "A2", in the case
of the Certificates of the Class B Trust and not lower than "Baa1", in
the case of the Certificates of the Class C Trust, by Moody's Investors
Service, Inc.
(r) 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).
(s) You shall have received from Ernst & Young LLP a letter,
dated the Closing Date, which meets the requirements of subsection (m)
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.
The Company will furnish the Underwriters with such conformed
copies of such opinions, certificates, letters and documents as the
Underwriters reasonably request.
4. CERTAIN COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter as follows:
(a) During the period described in the following sentence of
this Section 4(a), the Company shall advise you promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus (except by documents filed under the Exchange Act) and will
not effect such amendment or supplement (except by documents filed
under the Exchange Act) without your consent, which consent will not be
unreasonably withheld. If, at any time after the public offering of
the Certificates as the Prospectus is required by law to be delivered
in connection with sales of the Certificates by an Underwriter or
dealer, any event shall occur as a result of which it is necessary to
amend the Registration Statement or amend or supplement the Prospectus
in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading in any material respect, or if it is necessary to amend the
Registration Statement or amend or supplement the Prospectus to comply
with law, the Company shall prepare and furnish, at its own expense, to
the Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Certificates may have been sold by you
on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading in any material respect or amendments or
supplements to the Registration Statement or the Prospectus so that the
Registration Statement or the Prospectus, as so amended or
<PAGE>
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 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 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
Certificates and their terms (including, without limitation, terms of
the Escrow Receipts attached to the Certificates) not otherwise
specified in the Preliminary Prospectus Supplement or the basic
prospectus included in the Registration Statement, the name of each
Underwriter participating in the offering and the principal amount of
the 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
Certificates are to be purchased by the Underwriters from the Original
Trustees, any initial public offering price, any selling concession and
reallowance and any delayed delivery arrangements, and such other
information as you and the Company deem appropriate in connection with
the offering of the Certificates. The Company will timely transmit
copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424 under the Securities Act.
<PAGE>
(e) The Company shall, in cooperation with the Underwriters,
endeavor to arrange for the qualification of the 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 such Certificates; PROVIDED that the Company
shall not be required to (i) qualify as a foreign corporation or as a
dealer in securities, (ii) file a general consent to service of process
or (iii) subject itself to taxation in any such state.
(f) During the period of ten years after the Closing Date, the
Company will promptly furnish to each of the Underwriters, upon
request, copies of all Annual Reports on Form 10-K and any definitive
proxy statement of the Company filed with the Commission; PROVIDED THAT
providing a website address at which such Annual Reports and any such
definitive proxy statements may be accessed will satisfy this clause
(f).
(g) Except for the offering of Continental Airlines Floating
Enhanced Aircraft Trust Securities, Series 2000, up to a maximum
principal amount of $200,000,000, between the date of this Agreement
and the Closing Date, the Company shall not, without your prior written
consent, offer, sell, or enter into any agreement to sell (as public
debt securities registered under the Securities Act (other than the
Certificates) or as debt securities which may be resold in a
transaction exempt from the registration requirements of the Securities
Act in reliance on Rule 144A thereunder and which are marketed through
the use of a disclosure document containing substantially the same
information as a prospectus for similar debt securities registered
under the Securities Act), any equipment notes, pass through
certificates, equipment trust certificates or equipment purchase
certificates secured by aircraft owned or leased by the Company (or
rights relating thereto).
5. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter, and each Person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such action
or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
the Preliminary Prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon Underwriter Information or Depositary Information; PROVIDED, HOWEVER, that
the foregoing indemnity agreement with respect to the Preliminary Prospectus
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased the 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
<PAGE>
delivered, at or prior to the written confirmation of the sale of such
Certificates to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities unless such failure to deliver the Prospectus was a
result of noncompliance by the Company with its delivery requirements set
forth in Section 4(a).
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, each of the officers
who signed the Registration Statement and each person, if any, who controls
the Company, within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Company to such Underwriter but only with reference to the
Underwriter Information provided by such Underwriter.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing. The
indemnifying party, upon request of the indemnified party, shall, and the
indemnifying party may elect to, retain counsel reasonably satisfactory to
the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and the indemnifying
party shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel, (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them, or (iii) the indemnifying
party shall have failed to retain counsel as required by the prior sentence to
represent the indemnified party within a reasonable amount of time. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by you in the case of parties indemnified pursuant to paragraph (a)
above and by the Company in the case of parties indemnified pursuant to
paragraph (b) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
in writing an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the second and third sentences of this
paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 90 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement, unless such fees and expenses are being disputed in
<PAGE>
good faith. The indemnifying party at any time may, subject to the last sentence
of this Section 5(c), settle or compromise any proceeding described in this
paragraph at the expense of the indemnifying party. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
(d) To the extent the indemnification provided for in paragraph
(a) or (b) of this Section 5 is required to be made but is unavailable to an
indemnified party or insufficient in respect of any losses, claims, damages
or liabilities, then the applicable indemnifying party under such paragraph,
in lieu of indemnifying such indemnified party thereunder, shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the
one hand, and the Underwriters, on the other hand, from the offering of such
Certificates or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the Underwriters on the
other hand in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other hand in connection with the
offering of such Certificates shall be deemed to be in the same respective
proportions as the proceeds from the offering of such Certificates received
by the Original Trusts (before deducting expenses) less total underwriting
discounts and commissions paid to the Underwriters by the Company, and the
total underwriting discounts and commissions paid to the Underwriters by the
Company, in each case as set forth on the cover of the Prospectus, bear to
the aggregate public offering price of such Certificates. The relative fault
of the Company on the one hand and of the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or information supplied by 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 are several in
proportion to the respective principal amount of Certificates they have
purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 5 were determined
by PRO RATA allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 5, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
<PAGE>
which the Certificates underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The indemnity and contribution provisions
contained in this Section 5 and the representations and warranties of the
Company contained in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Company, its officers
or directors or any person controlling the Company, and (iii) acceptance of
and payment for any of the Certificates. The remedies provided for in this
Section 5 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
6. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters
defaults in their obligations to purchase Certificates hereunder and the
aggregate principal amount of the Certificates that such defaulting Underwriter
or Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of the Certificates, you may make arrangements satisfactory to
the Company for the purchase of such Certificates by other persons, including
any of the Underwriters, but if no such arrangements are made by the Closing
Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the
Certificates that such defaulting Underwriter or Underwriters agreed but failed
to purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount of the Certificates with respect to which such default or
defaults occurs exceeds 10% of the total principal amount of the Certificates
and arrangements satisfactory to you and the Company for purchase of such
Certificates by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company, except as provided in Section 5. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
7. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any termination of this Agreement, any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter, the Company
or any of their respective representatives, officers or directors or any
controlling person and will survive delivery of and payment for the
Certificates. If for any reason the purchase of the Certificates by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 9 and the respective
obligations of the Company and the Underwriters pursuant to Section 5 shall
remain in effect. If the purchase of the Certificates by the Underwriters is not
consummated for any reason other than solely because of the occurrence of the
termination of the Agreement pursuant to Section 6 or 8, the Company will
reimburse the Underwriters for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) reasonably incurred by them in connection
with the offering of such Certificates and comply with its obligations under
Section 9.
<PAGE>
8. TERMINATION. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been 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 or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your judgment, is material
and adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event singly or together with any other such event makes it,
in your judgment, impracticable to market the Certificates on the terms and in
the manner contemplated in the Prospectus.
9. PAYMENT OF EXPENSES. As between the Company and the Underwriters,
the Company shall pay all expenses incident to the performance of the Company's
obligations under this Agreement, including the following:
(i) expenses incurred in connection with (A) qualifying the
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 Certificates, (C) the review (if
any) of the offering of the Certificates by the National Association of
Securities Dealers, Inc., (D) the determination of the eligibility of
the 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
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) expenses incurred in connection with the preparation,
printing and filing of the Registration Statement (including financial
statements and exhibits), as originally filed and as amended, the
Preliminary Prospectus and the Prospectus and any amendments thereof
and supplements thereto, and the cost of furnishing copies thereof to
the Underwriters;
<PAGE>
(iv) expenses incurred in connection with the preparation,
printing and distribution of this Agreement, the Certificates and the
Operative Agreements;
(v) expenses incurred in connection with the delivery of the
Certificates to the Underwriters;
(vi) reasonable fees and disbursements of the counsel and
accountants for the Company;
(vii) to the extent the Company is so required under any
Operative Agreement to which it is a party, the fees and expenses of
the Loan Trustees, the Subordination Agent, the Paying Agents, the
Trustees, the Escrow Agents, the Depositary, the Liquidity Provider and
the reasonable fees and disbursements of their respective counsel;
(viii) fees charged by rating agencies for rating the
Certificates (including annual surveillance fees related to the
Certificates as long as they are outstanding);
(ix) all fees and expenses relating to appraisals of the
Aircraft; and
(x) all other reasonable out-of-pocket expenses incurred by the
Underwriters in connection with the transactions contemplated by this
Agreement.
10. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or sent by facsimile
transmission and confirmed to the Underwriters, c/o Credit Suisse First Boston
Corporation, Eleven Madison Avenue, New York, New York 10010, Attention:
Transaction Advisory Group, facsimile number (212) 892-0776, and if sent to the
Company, will be mailed, delivered or sent by facsimile transmission and
confirmed to it at 1600 Smith Street, HQSEO, Houston, TX 77002, Attention: Chief
Financial Officer and General Counsel, facsimile number (713) 324-2687;
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. You will act for the several
Underwriters in connection with this purchase, and any action under this
Agreement taken by you will be binding upon all the Underwriters.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
<PAGE>
15. JURISDICTION. Each of the parties hereto agrees that any legal
suit, action or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby may be instituted in any U.S. federal or New
York State court in the Borough of Manhattan in the City of New York and each of
the parties hereto hereby irrevocably waives any objection which it may now or
hereafter have to the laying of venue of any such proceeding, and irrevocably
submits to the jurisdiction of such courts, with respect to actions brought
against it as defendant, in any suit, action or proceeding. Each of the parties
to this Agreement agrees that a final judgment in any such suit, action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law in accordance with
applicable law.
<PAGE>
If the foregoing is in accordance with the Underwriters'
understanding of our agreement, kindly sign and return to the Company one of
the counterparts hereof, whereupon it will become a binding agreement among
the Underwriters, the Depositary and the Company in accordance with its terms.
Very truly yours,
CONTINENTAL AIRLINES, INC.
By:
---------------------------------------
Name: Gerald Laderman
Title: Senior Vice President - Finance
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written
CREDIT SUISSE FIRST BOSTON CORPORATION
MORGAN STANLEY & CO. INCORPORATED
CHASE SECURITIES INC.
GOLDMAN, SACHS & CO.
SALOMON SMITH BARNEY INC.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:
---------------------------------------
Name:
Title:
<PAGE>
CREDIT SUISSE FIRST BOSTON,
New York Branch, as Depositary
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
<PAGE>
SCHEDULE I
(Pass Through Certificates, Series 2000-2)
CONTINENTAL AIRLINES, INC.
<TABLE>
<CAPTION>
Pass Through Aggregate Final
Certificate Principal Maturity
Designation Amount Interest Rate Date
----------- ------ ------------- ----
<S> <C> <C> <C>
2000-2A-1 $380,340,000 7.707% October 2, 2022
2000-2A-2 $170,766,000 7.487% April 2, 2022
2000-2B $151,088,000 8.307% October 2, 2019
2000-2C $138,764,000 8.312% October 2, 2012
</TABLE>
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
UNDERWRITERS 2000-2A-1 2000-2A-2 2000-2B 2000-2C
<S> <C> <C> <C> <C>
Credit Suisse First $76,068,000 $34,154,000 $30,220,000 $27,756,000
Boston Corporation
Eleven Madison Avenue
New York, NY 10010
Morgan Stanley & Co. $76,068,000 $34,153,000 $30,217,000 $27,752,000
Incorporated
1585 Broadway
New York, NY 10036
Chase Securities Inc. $76,068,000 $34,153,000 $30,217,000 $27,752,000
270 Park Avenue
New York, NY 10017
Goldman, Sachs & Co. $76,068,000 $34,153,000 $30,217,000 $27,752,000
85 Broad Street
New York, NY 10004
Salomon Smith Barney $76,068,000 $34,153,000 $30,217,000 $27,752,000
Inc.
388 Greenwich Street
New York, NY 10013
</TABLE>
<PAGE>
SCHEDULE III
CONTINENTAL AIRLINES, INC.
Underwriting commission
and other compensation: $7,148,143
Closing date, time and location: November 28, 2000
10:00 A.M.,
New York time
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, New York 10004
