Exhibit 1.1
EXECUTION COPY
UNITED AIR LINES, INC.
$659,107,000
United Air Lines Pass Through Certificates,
Series 2009-1A-O
UNDERWRITING
AGREEMENT
October 5, 2009
J.P. MORGAN SECURITIES
INC.
MORGAN STANLEY & CO.
INCORPORATED
As representatives of the several
underwriters named in Schedule II hereto
c/o J.P. Morgan Securities Inc.
270 Park Avenue, Floor 10
New York, NY 10017
c/o Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
United Air Lines, Inc., a Delaware
corporation (the “ Company ”), proposes that
Wilmington Trust Company, as trustee under the Original Trust (as
defined below) (the “ Trustee ”), issue and sell
to the underwriters named in Schedule II hereto United Air Lines
Pass Through Certificates, Series 2009-1A-O (the “
Certificates ”), in the aggregate principal amount and
with the stated interest rate and final expected distribution date
set forth on Schedule I hereto on the terms and conditions stated
herein.
The Certificates will be issued
pursuant to a Pass Through Trust Agreement, dated as of
June 26, 2007 (the “ Basic Agreement ”),
between the Company and the Trustee, as supplemented with respect
to the issuance of the Certificates by a Pass Through Trust
Supplement to be dated as of the Closing Date (as defined below)
(the “ Original Trust Supplement ”), between the
Company and the Trustee (the Basic Agreement as supplemented by the
Original Trust Supplement being referred to herein as the “
Original Pass Through Trust Agreement ”). The Original
Trust Supplement is related to the creation and administration of
United Air Lines Pass Through Trust 2009-1A-O (the “
Original Trust ”). As used herein, unless the context
otherwise requires, the term “ Underwriters ”
shall mean the firms named as Underwriters in Schedule II, and
the term “ you ” shall mean, collectively, J.P.
Morgan Securities Inc. (“ JPM ”) and Morgan
Stanley & Co. Incorporated (“ MS
”).
The cash proceeds of the offering of
Certificates by the Original Trust will be paid to Wilmington Trust
Company, as escrow agent (the “ Escrow Agent ”),
under an Escrow and Paying Agent Agreement among the Escrow Agent,
the Underwriters, the Trustee of the Original Trust and Wilmington
Trust Company, as paying agent (the “ Paying Agent
”), for the benefit of the holders of the Certificates issued
by the Original Trust (the “ Escrow Agreement
”). The Escrow Agent will deposit such cash proceeds (each, a
“ Deposit ”) with JPMorgan Chase Bank, N.A. (the
“ Depositary ”), in accordance with a Deposit
Agreement relating to the Original 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 (as defined in the Note
Purchase Agreement (as defined below)) 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 and Wilmington Trust Company, as Trustee of the Original
Trust, as Subordination Agent (as hereinafter defined), as Paying
Agent and as the Escrow Agent. The Escrow Agent will issue receipts
to be attached to each related Certificate (“ Escrow
Receipts ”) representing each holder’s interest in
amounts deposited with the Escrow Agent with respect to the related
Certificates and will pay to such holders through the Paying Agent
interest accrued on the Deposits and received by the Paying Agent
pursuant to the Deposit Agreement at a rate per annum equal to the
interest rate applicable to the corresponding Certificates. The
Equipment Notes will be guaranteed by UAL Corporation, a Delaware
corporation (the “ Parent Guarantor ”) as
described in the Parent Guarantee (as defined in the Original Pass
Through Trust Agreement).
Upon the earlier of (i) the
first business day after February 1, 2010 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 ”), or, if later, the date
on which all of the conditions set forth in Section 7.01 of
the Original Trust Supplement have been satisfied, the Original
Trust 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 (as hereinafter defined) (the
“ Successor Trust ” and, together with the
Original Trust, the “ Trust ”) governed by the
Basic Agreement, as supplemented by a separate Pass Through Trust
Supplement (the “ Successor Trust Supplement ”),
between the Company and the Trustee (the Basic Agreement, as
supplemented by the Successor Trust Supplement, being referred to
herein as the “ Successor Pass Through Trust Agreement
” and, together with the Original Pass Through Trust
Agreement, 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 Trust (the
“ Successor Trustee ”).
Certain amounts of interest payable
on the Certificates issued by the Trust will be entitled to the
benefits of a liquidity facility. Morgan Stanley Bank, N.A. (the
“ Liquidity Provider ”) will enter into a
revolving credit agreement with respect to the Trust (the “
Liquidity Facility ”) to be dated as of the Closing
Date for the benefit of the holders of the Certificates issued by
the Trust. 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 Trustee,
Wilmington Trust Company, as subordination agent and trustee
thereunder (the “ Subordination Agent ”) and the
Liquidity Provider.
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The Company has filed with the
Securities and Exchange Commission (the “ Commission
”) an automatic shelf registration statement on Form S-3
(File No.333-143865) relating to securities, including pass through
certificates (the “ Shelf Securities ”), to be
issued from time to time by the Company. The 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 to and including the date of this Agreement,
including the information (if any) deemed retroactively to be part
of the registration statement pursuant to Rule 430B under the
Securities Act of 1933, as amended (the “ Securities
Act ”) that has not been superseded or modified (and the
Underwriters confirm that the first contract of sale of the
Certificates by the Underwriters was made on the date of this
Agreement), is hereinafter referred to as the “
Registration Statement ”, and the related prospectus
covering the Shelf Securities dated June 19, 2007 filed as
part of the Registration Statement, in the form first used to
confirm sales of the Certificates, is hereinafter referred to as
the “ Basic Prospectus ”. The Basic Prospectus,
as supplemented by the final prospectus supplement specifically
relating to the Certificates in the form first used to confirm
sales of the Certificates in accordance with Section 4(d)
hereof is hereinafter referred to as the “ Prospectus
”, and the term “ preliminary prospectus ”
means any preliminary form of the Prospectus filed with the
Commission pursuant to Rule 424 under the Securities Act. For
purposes of this Agreement, (i) “ free writing
prospectus ” has the meaning set forth in Rule 405 under
the Securities Act and (ii) “ Time of Sale
Prospectus ” means the preliminary prospectus together
with the free writing prospectuses, if any, each identified in
Schedule IV hereto. As used herein, the terms “
Registration Statement ”, “ Basic
Prospectus ”, “ preliminary prospectus
”, “ Time of Sale Prospectus ” and “
Prospectus ” shall include the documents, if any,
incorporated by reference therein. The terms “
supplement ”, “ amendment ” and
“ amend ” as used herein with respect to the
Registration Statement, the Basic Prospectus, the Time of Sale
Prospectus, any preliminary prospectus or free writing prospectus
shall include all documents subsequently filed by the Company with
the Commission pursuant to the Exchange Act and incorporated by
reference therein.
Capitalized terms used but not
defined in this Underwriting Agreement (the “
Agreement ”) shall have the meanings specified
therefor in the Original Pass Through Trust Agreement, the Note
Purchase Agreement or the Intercreditor Agreement; provided
that, as used in this Agreement, the term “ Operative
Agreements ” shall mean the Designated Agreements, the
Intercreditor Agreement, the Liquidity Facility, the Parent
Guarantee, the Escrow Agreement, the Deposit Agreement, the
Assignment and Assumption Agreement and the Financing Agreements
(as defined in the Note Purchase Agreement).
1. Representations and
Warranties . (a) Each of the Company and the Parent
Guarantor represents and warrants to, and agrees with each
Underwriter that:
(i) The Company and the Parent
Guarantor meet the requirements for use of Form S-3 under the
Securities Act; the Registration Statement has become effective;
and,
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on the original effective date of
the Registration Statement, the Registration Statement complied in
all material respects with the requirements of the Securities Act;
no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are
pending before or, to the knowledge of the Company or the Parent
Guarantor, threatened by the Commission. The Registration Statement
is an “ automatic shelf registration statement ”
(as defined in Rule 405 under the Securities Act), the Parent
Guarantor is a “ well-known seasoned issuer ”
(as defined in Rule 405 under the Securities Act) and the Parent
Guarantor and the Company are both eligible to use the Registration
Statement as an automatic shelf registration statement, and the
Company and the Parent Guarantor have not received notice that the
Commission objects to the use of the Registration Statement as an
automatic shelf registration statement. The Registration Statement
does not, as of the date hereof, 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. As of its date and on the Closing Date, the Prospectus,
as amended and supplemented, if applicable, 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 Registration Statement,
as of the date hereof, complies and the Prospectus complies, and as
amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder. The Time of Sale
Prospectus did not, as of 5:00 pm, Eastern Time, on the date of
this Agreement (the “ Applicable Time ”), and
the Time of Sale Prospectus, as then amended or supplemented, if
applicable, will not as of the Closing Date, contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Any
information included in any “issuer free writing
prospectus” (as defined in Rule 433(h) under the Securities
Act) used in connection with the offering of the Certificates does
not conflict with the information contained in the Registration
Statement, including any prospectus or prospectus supplement that
is part of the Registration Statement (including pursuant to Rule
430B under the Securities Act) and not superseded or modified. The
preceding sentences do not apply to statements in or omissions from
the Registration Statement, the Time of Sale Prospectus or the
Prospectus based upon (A) the Underwriter Information (as
hereinafter defined), (B) 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 or (C) the Depositary Information (as hereinafter
defined).
(ii) Since the date of the most
recent audited financial statements of the Company incorporated by
reference in each of the Registration Statement, the Time of Sale
Prospectus and the Prospectus, except as otherwise stated or
incorporated by reference therein or contemplated thereby, there
has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition
(financial or otherwise), business, properties or results of
operations of the Parent Guarantor and its consolidated
subsidiaries, taken as a whole.
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(iii) The documents incorporated by
reference in the Registration Statement, the Time of Sale
Prospectus and the Prospectus, at the time they were filed with the
Commission, complied or will comply, as the case may be, in all
material respects with the requirements of the Exchange
Act.
(iv) The Company is not an “
ineligible issuer ” pursuant to Rule 405 under the
Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act
has been, or will be, filed with the Commission in accordance with
the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing
prospectus that the Company has filed in connection with the
offering of the Certificates, or is required to file in connection
with the offering of the Certificates, pursuant to Rule 433(d)
under the Securities Act complies or will comply in all material
respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder.
Except for the free writing prospectuses, if any, identified in
Schedule IV hereto, the Company or the Parent Guarantor has not
prepared, used or referred to, any free writing prospectus in
connection with the offering of the Certificates.
(v) Each of the Company and the
Parent Guarantor has been duly incorporated and is validly existing
as a 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 Registration Statement, the Time of Sale Prospectus and the
Prospectus; and each of the Company and the Parent Guarantor 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
Parent Guarantor and its consolidated subsidiaries, taken as a
whole (a “ United Material Adverse Effect
”).
(vi) Each of the Company’s
subsidiaries listed on Schedule V hereto (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 Registration Statement, the Time
of Sale Prospectus and 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 United 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 Registration Statement, the Time of
Sale Prospectus and the Prospectus, each Subsidiary’s capital
stock is owned by the Company, directly or through subsidiaries,
and is owned free from liens, encumbrances and defects.
(vii) Neither the Company nor the
Parent Guarantor is 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
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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 United Material
Adverse Effect. The execution, delivery and performance of this
Agreement and the Operative Agreements to which the Company or the
Parent Guarantor is or will be a party and the consummation by the
Company or the Parent Guarantor of the transactions contemplated
herein and therein have been duly authorized by all necessary
corporate action of the Company or the Parent Guarantor and will
not result in (i) 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 or the Parent
Guarantor pursuant to any indenture, loan agreement, contract,
mortgage, note, lease or other instrument to which the Company or
the Parent Guarantor is a party or by which the Company or the
Parent Guarantor may be bound or to which any of the property or
assets of the Company or the Parent Guarantor is subject,
(ii) any violation of the provisions of the charter or by-laws
of the Company or the Parent Guarantor or (iii) any violation
of any statute, any rule, regulation, judgment, or order or decree
of any government, governmental agency or body or court, domestic
or foreign, having jurisdiction over the Company or the Parent
Guarantor, except, in the case of clause (i) and (iii), for
any such breach, default, lien, charge, encumbrance or violation as
would not have a United Material Adverse Effect.
(viii) 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 or the Parent Guarantor of
this Agreement and the Operative Agreements to which they are 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
Financial Industry Regulatory Authority, Inc. (“ FINRA
”), (y) filings or recordings with the Federal Aviation
Administration (the “ FAA ”) and under the
Uniform Commercial Code (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
Funding Date (as defined in the Note Purchase Agreement) for each
of the two Boeing 767-300ER aircraft, ten Airbus A319-131 aircraft,
six Airbus A320-232 aircraft, five Boeing 767-300ER aircraft, three
Boeing 777-200ER aircraft and five Boeing 747-400 aircraft
(collectively, the “ Aircraft ”) related to such
Financing Agreements and (z) such as may be required in
connection with the registration of the “international
interests” created pursuant to the indenture under the
Convention on International Interests in Mobile Equipment and the
Protocol to the Convention on International Interests in Mobile
Equipment on Matters Specific to Aircraft Equipment signed in Cape
Town, South Africa on November 16, 2001.
(ix) This Agreement has been
executed and delivered by the Company and the Parent Guarantor and
each of the Operative Agreements to which the Company and
the
6
Parent Guarantor will be a party
will be duly authorized, executed and delivered by the Company or
the Parent Guarantor, as the case may be, on or prior to the
Closing Date or the applicable Funding Date, as the case may
be.
(x) Each of the Equipment Notes
issued or to be issued under each related Indenture (as defined in
the Original Trust Supplement), when duly executed and delivered by
the Company, and duly authenticated by the related Indenture
Trustee in accordance with the terms of such Indenture, has been or
will be duly issued under such Indenture and constitutes or will
constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its 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 Indentures may also be
limited by applicable laws which may affect the remedies provided
therein but which do not affect the validity of the Indentures 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 Related Pass Through Trust Agreement, to the delayed
effectiveness thereof as set forth therein.
(xi) Each of the Operative
Agreements (other than the Equipment Notes) to which the Company or
the Parent Guarantor is or will be a party, when duly executed and
delivered by the Company or the Parent Guarantor, as the case may
be, 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 or the
Parent Guarantor, as the case may be, 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
Indentures may also be limited by applicable laws which may affect
the remedies provided therein but which do not affect the validity
of the Indentures 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 Related Pass
Through Trust Agreement, 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 June 29, 2007
and has been duly qualified under the Trust Indenture Act. The
Certificates will, upon execution and delivery thereof, conform in
all material respects to the descriptions thereof in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus.
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(xii) The consolidated financial
statements of the Company incorporated by reference in the
Registration Statement, the Time of Sale Prospectus and 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.
(xiii) 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 ten 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, and, except as
disclosed in the Registration Statement, the Time of Sale
Prospectus and the Prospectus, are owned by the Parent Guarantor,
directly free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind.
(xv) 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 Agreement 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 Original Pass Through Trust
Agreement; based on applicable law as in effect on the date hereof,
upon the execution and delivery of the Assignment and Assumption
Agreement in accordance with the Original Pass Through Trust
Agreement, the Certificates will be legally and validly outstanding
under the Related 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.
(xvi) Except as disclosed in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, each of the Company and its Subsidiaries and the Parent
Guarantor 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 United Material Adverse Effect;
and except as disclosed in the Registration Statement, the Time of
Sale Prospectus and the Prospectus, each of the Company and its
Subsidiaries and the Parent Guarantor hold any leased real or
personal property under valid and enforceable leases with no
exceptions that would have a United Material Adverse
Effect.
(xvii) Except as disclosed in the
Registration Statement, the Time of Sale Prospectus and 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
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knowledge of the Company or the
Parent Guarantor, threatened against the Company, any of its
Subsidiaries, the Parent Guarantor, or any of their respective
properties that individually (or in the aggregate in the case of
any class of related lawsuits), would reasonably be expected to
result in a United Material Adverse Effect or that would reasonably
be expected to materially and adversely affect the consummation of
the transactions contemplated by this Agreement or the Operative
Agreements.
(xviii) No labor dispute with the
employees of the Company, any subsidiary, or the Parent Guarantor,
exists or, to the knowledge of the Company or the Parent Guarantor,
is imminent that would reasonably be expected to have a United
Material Adverse Effect.
(xix) Except as disclosed in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, each of the Company and the Subsidiaries has all
licenses, permits, orders, consents, authorizations, approvals and
certificates 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, necessary to own, lease, license and use its properties
and assets and to conduct its business in the manner described in
the Registration Statement, the Time of Sale Prospectus and the
Prospectus, except to the extent that the failure to so obtain,
declare or file would not have a United Material Adverse
Effect.
(xx) Except as disclosed in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, neither the Company nor any of its 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 imposes any liability under 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 United Material
Adverse Effect. The Company is not aware of any pending
investigation that would reasonably be expected to lead to such a
claim that would have a United Material Adverse Effect.
(xxi) The accountants that examined
and issued an auditors’ report with respect to the
consolidated financial statements of the Company and the Parent
Guarantor, and the financial statement schedules of the Company and
the Parent Guarantor, if any, included or incorporated by reference
in the Registration Statement, are independent public accountants
within the meaning of the Securities Act with respect to the
Company and the Parent Guarantor, as applicable.
(xxii) None of the Parent Guarantor,
the Company or the Original Trust is, and the Successor Trust
(based on applicable law as in effect on the date hereof) will not
be, as of the execution and delivery of the Assignment and
Assumption Agreement in accordance with the Original Pass Through
Trust Agreement, an “investment company”, or an entity
“controlled” by an “investment company”,
within the meaning of the
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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, none of (i) the Parent Guarantor,
the Company and the Original Trust, (ii) the Successor Trust
(based on the applicable law as in effect on the date hereof), as
of the execution and delivery of the Assignment and Assumption
Agreement in accordance with the Original Pass Through Trust
Agreement and (iii) the escrow arrangements contemplated by
the Escrow Agreement will 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.
(xxiii) Except as described in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus, this Agreement and the other Operative Agreements to
which the Company or the Parent Guarantor is or will be a party
will, upon execution and delivery thereof, conform in all material
respects to the descriptions thereof contained in the Registration
Statement, the Time of Sale Prospectus and the
Prospectus.
(xxiv) None of Aircraft Information
Services, Inc., BK Associates, Inc. and Morten Beyer and Agnew,
Inc. (each, an “ Appraiser ” and, collectively,
the “ Appraisers ”) is an affiliate of the
Company, the Parent Guarantor, or, to the knowledge of the Company
or the Parent Guarantor, has a substantial interest, direct or
indirect, in the Company or the Parent Guarantor. To the knowledge
of the Company and the Parent Guarantor, none of the officers and
directors of any of such Appraisers is connected with the Company,
the Parent Guarantor or any of their respective affiliates as an
officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
(xxv) Except as disclosed in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, each of the Company and the Parent Guarantor
(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, or the Parent Guarantor and its
consolidated subsidiaries, as the case may be 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.
(xxvi) Each of the Company and the
Parent Guarantor maintains an effective system of “disclosure
controls and procedures” (as defined in Rule 13a-15(e) of the
Exchange Act) that complies with the requirements of the Exchange
Act and that has been designed to ensure that information required
to be disclosed by the Company or the
10
Parent Guarantor, as the case may
be, in reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported within the time
periods specified in the Commission’s rules and forms,
including controls and procedures designed to ensure that such
information is accumulated and communicated to the Company’s
or the Parent Guarantor’s management as appropriate to allow
timely decisions regarding required disclosure. The Company and the
Parent Guarantor have carried out evaluations of the effectiveness
of their disclosure controls and procedures as required by Rule
13a-15 of the Exchange Act.
(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” (collectively, the
“ Depositary Information ”) in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, as
amended and supplemented, does not contain any untrue statement of
a material fact.
(ii) The Depositary is a national
banking association existing under the laws of the United States
and is located in the State of New York, with corporate power and
authority to own, lease and operate its property, to conduct its
business as described in the Depositary 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
authorized, executed and delivered by the Depositary, and the
Deposit Agreement will be duly authorized, executed and delivered
by the Depositary on or prior to the Closing Date.
(vi) The Deposit Agreement, when
duly authorized, 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
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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 the United States 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 or
the Parent Guarantor 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 and/or
the Parent Guarantor 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 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 Certificates set forth opposite the
name of such Underwriter in Schedule II. Con
