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EXHIBIT 4.14
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NOTE PURCHASE AGREEMENT
Dated as of December 23, 1997
between
UNITED AIR LINES, INC.,
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
as Owner Trustee under each
of the Trust Agreements,
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Pass Through Trustee under each of the
United Airlines 1997-1 Pass Through Trust Agreements,
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Subordination Agent,
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Indenture Trustee
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TABLE OF CONTENTS
Page
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SECTION 1. Purchase of Equipment Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.A. Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2. Redemption, Purchase or Refinancing of Equipment Notes . . . . . . . . . . . . . . . . . . . 4
SECTION 3. Adjustment of Interest Rates Applicable to Equipment Notes. . . . . . . . . . . . . . . . . . 5
SECTION 4. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 5. Representations, Warranties and Covenants of United . . . . . . . . . . . . . . . . . . . . 13
SECTION 6. Representations, Warranties and Covenants of SSBT and
the Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 7. Representations, Warranties and Covenants of Other Parties . . . . . . . . . . . . . . . . 19
SECTION 8. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 9. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SCHEDULES
Schedule I Names, Addresses and Wire Instructions
Schedule II Pass Through Trust Supplements
Schedule III Equipment Notes, Purchasers and Purchase Prices
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NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT, dated as of December 23, 1997 (this
"Agreement"), between UNITED AIR LINES, INC., a Delaware corporation
("United"), STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, not in its individual capacity except as otherwise expressly
provided herein, but solely as Owner Trustee (the "Owner Trustee"; the Owner
Trustee and United being herein referred to as the "Sellers") of the Owner
Trusts (as defined below), FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association, not in its individual capacity except as
otherwise expressly provided herein, but solely as trustee (in such capacity,
the "Pass Through Trustee") under each of the four separate Pass Through Trust
Agreements (as defined below), FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association, not in its individual capacity except as
otherwise expressly provided herein, but solely as subordination agent (in such
capacity, the "Subordination Agent"), and FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity
except as otherwise expressly provided herein, but solely as indenture trustee
(in such capacity, the "Indenture Trustee") under the Indentures (as defined
below).
WHEREAS, United is the owner of two Boeing 747-422 aircraft, four
Airbus A320-232 aircraft and four Boeing 777- 222 aircraft (collectively, the
"Owned Aircraft") for which it desires to obtain financing;
WHEREAS, the Owner Trustee, as trustee of separate owner trusts (the
"Owner Trusts") in connection with four separate leverage lease transactions,
wishes to refinance the current indebtedness of the Owner Trusts originally
incurred to finance the purchase of four Boeing 737-322 aircraft that have been
leased to United (collectively, the "Leased Aircraft"; and together with the
Owned Aircraft, the "Aircraft");
WHEREAS, pursuant to each Trust Indenture and Mortgage, dated as of
the date hereof (each, a "1997 Indenture"), between United and the indenture
trustee thereunder (each, a "1997 Indenture Trustee"), United proposes to issue
up to four series of equipment notes (the "1997 Equipment Notes"), of which
United proposes to issue three series on the Closing Date and may, in the
future, issue such fourth series, all of which, regardless of when issued, are
to be secured by the mortgage and security interest in the related Owned
Aircraft subject to such 1997 Indenture granted pursuant to such 1997 Indenture
by United in favor of the related 1997 Indenture Trustee;
WHEREAS, pursuant to each Amended and Restated Trust Indenture and
Security Agreement, dated as of the date hereof (each, a "1994 Indenture"),
between the Owner Trustee and the indenture trustee thereunder (each, a "1994
Indenture Trustee"; and, together with the 1997 Indenture Trustees, the
"Indenture Trustees"), the Owner Trustee proposes to issue four series of
equipment notes (the "1994 Equipment Notes"; and together with the 1997
Equipment Notes, the "Equipment Notes"), which are to be secured by the
security interest in the related Leased Aircraft and an assignment to the
related 1994 Indenture Trustee of certain of the related Owner Trustee's rights
under the Lease with respect to such Leased Aircraft;
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WHEREAS, Series A Equipment Notes, Series B Equipment Notes and Series
C Equipment Notes with respect to each Aircraft and Series D Equipment Notes
with respect to each Leased Aircraft (each, a "Series") will be issued on the
Closing Date (as defined in Section 1 below) to the Subordination Agent acting
on behalf of the Pass Through Trustee for the applicable Pass Through Trust as
evidence of United's, in the case of the Owned Aircraft, and the Owner
Trustee's, in the case of the Leased Aircraft, indebtedness to the Pass Through
Trustee;
WHEREAS, pursuant to each of the Pass Through Trust Supplements set
forth in Schedule II hereto (the "Trust Supplements"; and together with the
Basic Pass Through Trust Agreement, the "Pass Through Trust Agreements"), on
the Closing Date (as defined in Section 1 below), a separate grantor trust
(each, a "Pass Through Trust") will be created to facilitate certain of the
transactions contemplated hereby, including, without limitation, the issuance
and sale of enhanced pass through certificates pursuant thereto (collectively,
the "Pass Through Certificates") to provide the financing of the Aircraft;
WHEREAS, the proceeds from the issuance and sale of the Pass Through
Certificates will be applied by the Subordination Agent, acting on behalf of
the Pass Through Trustee, to purchase from United and the Owner Trustee on
behalf of each Pass Through Trust, Equipment Notes bearing the same interest
rate as the Pass Through Certificates issued by the related Pass Through Trust;
and
WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) Kreditanstalt fur Wiederaufbau, a corporation organized under
the public law of the Federal Republic of Germany (the "Primary Liquidity
Provider") entered into two revolving credit agreements (each, a "Primary
Liquidity Facility") for the benefit of the United Airlines 1997- 1A Pass
Through Trust and the United Airlines 1997-1B Pass Through Trust, with the
Subordination Agent, as agent and trustee for the Pass Through Trustee on
behalf of each such Pass Through Trust; (ii) Credit Suisse Financial Products,
an unlimited company incorporated in England and an authorized institution
under the Banking Act of 1987 of the United Kingdom (the "Above-Cap Liquidity
Provider"; and together with the Primary Liquidity Provider, the "Liquidity
Providers"), entered into irrevocable interest rate cap agreements (each an
"Above-Cap Liquidity Facility"; and together with the Primary Liquidity
Facility, the "Liquidity Facilities") for the benefit of the United Airlines
1997-1A Pass Through Trust and the United Airlines 1997-1B Pass Through Trust;
and (iii) the Pass Through Trustee, each Liquidity Provider and the
Subordination Agent entered into the Intercreditor Agreement, dated as of the
date hereof (the "Intercreditor Agreement");
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Purchase of Equipment Notes. (a) Subject to
the satisfaction or waiver of the conditions set forth herein, on December 23,
1997, or on such other date agreed to by the parties hereto (the "Closing
Date"):
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(i) the Pass Through Trustee for each Pass Through Trust
shall pay to each Seller the purchase price, set forth on Schedule III
below the name of such Seller, for each Equipment Note being issued
and sold by such Seller to such Pass Through Trust; and
(ii) each of United and the Owner Trustee shall issue,
pursuant to Article II of each 1997 Indenture and Article II of each
1994 Indenture, respectively, to the Subordination Agent, on behalf of
the Pass Through Trustee for each of the Pass Through Trusts, an
Equipment Note having a maturity date and principal amount and bearing
the interest rate set forth on Schedule III opposite the name of such
Pass Through Trust.
(b) All payments pursuant to Section 1(a)(i) shall be
made in immediately available funds to such accounts and at such banks as
United and the Owner Trustee shall designate on Schedule I or as either may
otherwise designate in writing not less than one Business Day prior to the
Closing Date.
SECTION 1.A. Certain Definitions. (a) As used in this
Agreement and unless otherwise expressly provided, the following capitalized
terms shall have the following respective meanings:
"FAA" means the Federal Aviation Administration.
"Federal Aviation Act" means Title 49 of the United States
Code (Transportation), as amended.
"Fundamental Documents" shall mean, collectively (i) any
document that is an "Operative Document", a "Pass Through
Document" or a "Fundamental Document" under any Lease relating
to a Leased Aircraft, (ii) any document that is an "Operative
Document," a "Pass Through Document" or a "Fundamental
Document" under any 1997 Indenture and (iii) any amendment to
any of the foregoing executed in connection with the
transactions contemplated hereby.
"Operative Documents" shall mean collectively any document
that is an Operative Document under a Lease relating to a
Leased Aircraft or a 1997 Indenture.
(b) With respect to any Lease relating to a Leased Aircraft, when
used in this Agreement, the terms "Participation Agreement," "First Amendment
to Participation Agreement," "Second Amendment to Participation Agreement,"
"Trust Indenture," "Trust Agreement," "First Amendment to Trust Agreement,"
"Owner Participant Guaranty Agreement," "Certificates," "Lease Supplement,"
"FAA ▇▇▇▇ of Sale" and "Original Loan Participants" shall have the respective
meanings specified in such Lease.
(c) Unless otherwise specifically defined herein, capitalized
terms used in this Agreement shall have the respective meanings specified in
the Intercreditor Agreement.
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SECTION 2. Redemption, Purchase or Refinancing of
Equipment Notes. (a) United or its designee may, at its option, redeem,
purchase or refinance, in the case of the Owned Aircraft, or purchase in the
case of the Leased Aircraft (i) the Equipment Notes of a Series with respect to
one or more Aircraft or (ii) all Equipment Notes related to one or more
Aircraft, upon notice as specified in Section 2(d) by paying an amount equal to
the aggregate unpaid principal amount of such Equipment Notes, together with
accrued and unpaid interest thereon to, but not including, the applicable
redemption or purchase date, as the case may be, plus Break Amount (as defined
in the related Indenture), if any, plus Make-Whole Amount (as defined in the
related Indenture), if any; provided, however, that the Series C Equipment
Notes may not be redeemed or purchased pursuant to this Section 2 prior to
December 2, 2002.
(b) Reissuance or Resale of Equipment Notes. Following the
redemption by United or the purchase by United or its designee pursuant to
Section 2(a) of (i) the Equipment Notes of a Series with respect to one or more
Aircraft or (ii) all of the Equipment Notes related to one or more Aircraft,
United may, upon completion of the actions specified below, (x) reissue
Equipment Notes (the "Reissued Equipment Notes") in place of the Equipment
Notes issued with respect to the Owned Aircraft so redeemed by United and sell
such Equipment Notes to one or more New Pass Through Trusts (as defined below),
as applicable, and/or (y) resell or cause to be resold to one or more New Pass
Through Trusts, as applicable, the Equipment Notes issued with respect to the
Leased Aircraft so purchased by United or its designee (the "Resold Equipment
Notes"; and together with the Reissued Equipment Notes, the "Affected Equipment
Notes"). The Pass Through Trustee agrees, upon the request of United, to take
such actions as may be reasonably requested by United to accomplish the
issuance and sale of Pass Through Certificates to finance the acquisition by
the New Pass Through Trusts of the Affected Equipment Notes, including, without
limitation:
(i) entering into a separate Trust Supplement to the
Basic Pass Through Trust Agreement for each series of Affected
Equipment Notes pursuant to which a separate grantor trust (each a
"New Pass Through Trust") relating to each series of Affected
Equipment Notes shall be created and Pass Through Certificates of the
related class shall be issued; and
(ii) entering into a note purchase agreement with United,
the Owner Trustee, each applicable Indenture Trustee and the
Subordination Agent upon terms substantially similar in all material
respects to the terms set forth herein, pursuant to which the Pass
Through Trustee shall purchase on behalf of each New Pass Through
Trust the Affected Equipment Notes bearing the same interest rate as
the Pass Through Certificates to be issued by the related New Pass
Through Trust; provided, however, that in the event Reissued Equipment
Notes are being sold to the Pass Through Trustee as a result of a
redemption by United of fewer than all outstanding Equipment Notes of
any Series, the interest rate and spread of each series of such
Reissued Equipment Notes must be equal to the interest rate and spread
on all other outstanding Equipment Notes of such Series.
(c) On December 2, 2002 (the "Final Expected Distribution Date"),
United or its designee shall have the option to purchase or refinance pursuant
to Section 17 of the applicable Participation Agreement all of the Equipment
Notes issued with respect to the Leased Aircraft then
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outstanding at a price equal to the outstanding principal amount of such
Equipment Notes, together with accrued and unpaid interest thereon.
(d) Irrevocable notice of redemption, purchase or refinancing
pursuant to Section 2(a) shall be given by first-class mail, postage prepaid,
mailed not less than 26 nor more than 60 days prior to the date of redemption,
purchase or refinancing, to the Subordination Agent.
All notices of redemption, purchase or refinancing shall state:
(i) the redemption or purchase date, as the case may be;
(ii) the applicable basis for determining the redemption
or purchase price, as the case may be;
(iii) that on the redemption date or purchase date, as the
case may be, the redemption price or purchase price with respect to
such Equipment Notes, as applicable, shall be due and payable;
(iv) the amount of Break Amount (as defined in the related
Indenture), if any, payable with respect to such redemption or
purchase;
(v) the amount of Make-Whole Amount (as defined in the
related Indenture), if any, payable with respect to such redemption or
purchase; and
(vi) the place or places where such Equipment Notes are to
be surrendered for payment of the redemption price or purchase price,
as applicable.
(e) Upon notice as specified in Section 2(d) and delivery of the
redemption price or purchase price specified in Section 2(a) or 2(c), as
applicable, the Pass Through Trustee agrees to cause the Subordination Agent
to, and the Subordination Agent shall, on behalf of the Pass Through Trustee,
transfer the Equipment Notes specified in such notice to United or its designee
and, if all the Equipment Notes relating to an Aircraft have been redeemed or
purchased by United or its designee, the applicable Indenture Trustee shall,
and the Pass Through Trustee hereby authorizes the Indenture Trustee to,
release the Lien of the Indenture in accordance with the provisions of such
Indenture.
SECTION 3. Adjustment of Interest Rates Applicable to
Equipment Notes. (a) Subject to Sections 3(b) and (c), interest on each Series
of Equipment Notes shall be payable at the rates specified for such series in
the applicable Indenture.
(b) If no Registration Event (as defined in the Registration
Rights Agreement) occurs on or prior to the 180th day after the Closing Date,
the interest rate applicable to each Series of Equipment Notes shall be
increased by 0.50% per annum from and including July 1, 1998 to but
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excluding the date on which such Registration Event occurs; provided, however,
that if the Shelf Registration Statement (as defined in the Registration Rights
Agreement) ceases to be effective at any time during the period specified by
Section 3(b) of the Registration Rights Agreement for more than 60 days,
whether or not consecutive, during any 12-month period, the interest rate
applicable to each series of Equipment Notes shall be increased by 0.50% per
annum from the 61st day of the applicable 12-month period such Shelf
Registration Statement ceases to be effective until such time as the Shelf
Registration Statement again becomes effective.
(c) The interest rate on each Series of Equipment Notes relating
to the Leased Aircraft shall be reset on the Final Expected Distribution Date.
No later than 60 days prior to the Final Expected Distribution Date, United
shall cause the Pass Through Trustee to hire (and, if United does not so cause
the Pass Through Trustee, the Pass Through Trustee shall, no later than 30 days
prior to the Final Expected Distribution Date, hire) an independent investment
banker (the "Reset Agent") of recognized national standing (which may be an
Initial Purchaser) to (i) determine the interest rate on each Series of the
Equipment Notes relating to the Leased Aircraft to an interest rate that, in
the good faith determination of the Reset Agent, after consideration of the
then current rates for pass through certificates of United and other comparable
equipment lessees having similar tenor, rating and other pricing terms, shall
enable each such Series of Equipment Notes to be sold at 100% of the principal
amount thereof on the Final Expected Distribution Date, and (ii) for such
reasonable fee payable by the applicable Pass Through Trust as shall be
mutually agreed by the Pass Through Trustee and the Reset Agent, use its best
efforts to sell any such Equipment Notes with such new interest rates on the
Final Expected Distribution Date or as soon as practicable thereafter.
SECTION 4. Conditions Precedent. (a) Conditions
Precedent to the Obligations of the Pass Through Trustee. The obligation of
the Pass Through Trustee to make the payments described in Section 1(a)(i) and
to enter into the Fundamental Documents to which it is a party are subject to
the fulfillment, on or prior to the Closing Date, of the following conditions
precedent:
(i) No change shall have occurred after the date of the
execution and delivery of this Agreement in applicable law or
regulations thereunder or interpretations thereof by appropriate
regulatory or judicial authorities which, in the opinion of each Pass
Through Trustee, would make it a violation of law or regulations for
the Pass Through Trustee to make the payments described in Section
1(a), to execute, deliver and perform the Fundamental Documents, to
acquire the Equipment Notes or to realize the security afforded by the
Indentures.
(ii) United shall have tendered the 1997 Equipment Notes
to the applicable 1997 Indenture Trustee for authentication and the
Owner Trustee shall have tendered the 1994 Equipment Notes to the
applicable 1994 Indenture Trustee for authentication and in each case
the applicable Indenture Trustee shall have authenticated such
Equipment Notes and shall have tendered the Equipment Notes to the
Subordination Agent on behalf of the Pass Through Trustee in
accordance with Section 1.
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(iii) The Pass Through Trustee shall have received duly
authorized and validly executed counterparts or conformed copies of
the following documents in form and substance satisfactory to the Pass
Through Trustee and all such documents shall be in full force and
effect:
(A) this Agreement;
(B) the Basic Pass Through Trust Agreement and
each Trust Supplement;
(C) the Intercreditor Agreement;
(D) the Primary Liquidity Facilities;
(E) the Above-Cap Liquidity Facilities;
(F) the Registration Rights Agreement;
(G) With respect to each Leased Aircraft, a
conformed copy of the Lease, the First
Amendment to Lease Agreement, the Second
Amendment to Lease Agreement and the Third
Amendment to Lease Agreement with respect to
such Aircraft, and each of the following
documents referred to therein:
(1) a conformed copy of the
Participation Agreement and the
First Amendment to Participation
Agreement;
(2) the Second Amendment to
Participation Agreement;
(3) the Trust Indenture;
(4) a conformed copy of the Trust
Agreement and the First Amendment to
Trust Agreement;
(5) a letter from the Owner Participant
Guarantor confirming that the Pass
Through Trustee is entitled to the
benefits of the Owner Participant
Guaranty Agreement;
(6) the Assignment and Assumption
Agreements;
(7) acknowledgment copies of a properly
completed Uniform Commercial Code
financing statements (and any
amendments thereto) reflecting
United as debtor and the Owner
Trustee as secured party as filed
with the Secretary of State of
Illinois;
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(8) acknowledgment copies of properly
completed Uniform Commercial Code
financing statements reflecting the
Owner Trustee as debtor and the
Indenture Trustee as secured party
as filed with the Secretary of State
of Connecticut;
(9) a receipt and release of
indebtedness as to each Certificate
outstanding on the date hereof; and
(10) cancelled Certificates issued to the
Original Loan Participants.
(H) With respect to each Owned Aircraft, the
Indenture and each of the following documents
referred to therein:
(1) the Participation Agreement; and
(2) properly completed Uniform
Commercial Code financing statements
(and any amendments thereto)
reflecting United as debtor and the
Owner Trustee as secured party,
which financing statement shall have
been filed with the Secretary of
State of Illinois.
(iv) Uniform Commercial Code financing statements covering
all the security interests created by or pursuant to the Granting
Clause of each Indenture shall have been executed and delivered by
United and the 1997 Indenture Trustees (in the case of the 1997
Indentures) and the Owner Trustee and the 1994 Indenture Trustees (in
the case of the 1994 Indentures), and such financing statements shall
have been duly filed or, in the case of the 1997 Indentures,
arrangements satisfactory to the Pass Through Trustee shall have been
made for filing within 10 days after the Closing Date, with the
Secretary of State of the State of Illinois, the State of Connecticut
or the State of Massachusetts, as the case may be, and any other
places deemed necessary or advisable.
(v) The Pass Through Trustee shall have received the
following, in each case in form and substance satisfactory to it:
(A) a certified copy of the Restated Certificate
of Incorporation and By-Laws of United and a copy of
resolutions of the board of directors of United or the
executive committee thereof, certified by the Secretary or an
Assistant Secretary of United, duly authorizing the execution,
delivery and performance by United of this Agreement and each
other Fundamental Document required to be executed and
delivered by United in accordance with the provisions hereof
and thereof;
(B) a copy of the organizational documents,
by-laws and general authorizing resolutions of the boards of
directors (or executive committees) or other
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satisfactory evidence of authorization of each of the Owner
Trustee, each Indenture Trustee and the Subordination Agent,
certified as of the Closing Date by the Secretary or an
Assistant Secretary of such parties, respectively, which
authorize the execution, delivery and performance by the Owner
Trustee, each Indenture Trustee and the Subordination Agent,
respectively, of all the Fundamental Documents to which it is
a party, together with such other documents and evidence with
respect to the Owner Trustee, each Indenture Trustee and the
Subordination Agent as the Pass Through Trustee may reasonably
request in order to establish the consummation of the
transactions contemplated by this Agreement, the taking of all
corporate proceedings in connection therewith and compliance
with the conditions herein set forth;
(C) a copy of the certificate of incorporation
and by-laws, certified as of the Closing Date by the Secretary
or Assistant Secretary of MS Financing Inc. (the "Owner
Participant"), with such other documents and evidence with
respect to the Owner Participant as the Pass Through Trustee
may reasonably request in order to establish the consummation
of the transactions contemplated by this Agreement, the taking
of all corporate proceedings in connection therewith and
compliance with the conditions herein set forth; and
(D) a certificate signed by the Secretary or an
Assistant Secretary of United, the Owner Trustee, each
Indenture Trustee and the Subordination Agent as to the Person
or Persons authorized to execute and deliver this Agreement
and any other Fundamental Document to be executed on behalf of
such party in connection with the transactions contemplated
hereby and as to the signature of such Person or Persons.
(vi) On the Closing Date, (A) the representations and
warranties of United contained in Section 5, the representations and
warranties of SSBT and the Owner Trustee contained in Section 6 and
the representations and warranties of each Indenture Trustee and the
Subordination Agent contained in Section 7 shall be true and correct
in all material respects as though made on and as of such date except
to the extent that such representations and warranties relate solely
to an earlier date (in which case such representations and warranties
shall have been true and correct in all material respects on and as
of such earlier date), and (B) no event shall have occurred and be
continuing, or would result from the transactions contemplated hereby,
which constitutes (or would, with the passage of time or the giving of
notice or both, constitute) an Indenture Default under any Indenture;
and the Pass Through Trustee shall have received certificates signed,
in the case of United, by the Chairman of the Board, the President,
any Vice President or any Assistant Vice President or, in the case of
the Owner Trustee, any Indenture Trustee or the Subordination Agent,
by a Responsible Officer of such party, dated the Closing Date,
addressed to the Pass Through Trustee and certifying as to the matters
set forth in clauses (A) and (B) above.
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(vii) The Pass Through Trustee shall have received an
opinion addressed to the Pass Through Trustee from (A) the General
Counsel or Assistant General Counsel for United, (B) Vedder, Price,
▇▇▇▇▇▇▇ & Kammholz, special counsel for United and (C) ▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇, special counsel for United, in each case with respect to such
matters and in form and substance reasonably satisfactory to the Pass
Through Trustee.
(viii) The Pass Through Trustee shall have received an
opinion addressed to the Pass Through Trustee from ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇ LLP, special counsel for the Owner Trustee.
(ix) The Pass Through Trustee shall have received an
opinion addressed to the Pass Through Trustee, United and the Owner
Trustee from (A) Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel for
the Primary Liquidity Provider, and (B) General Counsel of the Primary
Liquidity Provider, in each case in form and substance reasonably
satisfactory to the Pass Through Trustee.
(x) The Pass Through Trustee shall have received an
opinion addressed to the Pass Through Trustee, United and the Owner
Trustee from Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for
the Above-Cap Liquidity Provider, in form and substance reasonably
satisfactory to the Pass Through Trustee.
(xi) The Pass Through Trustee shall have received an
opinion addressed to the Pass Through Trustee, United and the Owner
Trustee from ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel in Oklahoma City,
Oklahoma, in form and substance reasonably satisfactory to the Pass
Through Trustee.
(xii) The Pass Through Trustee shall have received an
opinion addressed to the Pass Through Trustee, United and the Owner
Trustee from Ray, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for the Indenture
Trustees and the Pass Through Trustee, in form and substance
reasonably satisfactory to the Pass Through Trustee.
(xiii) The Pass Through Trustee shall have received an
opinion addressed to the Pass Through Trustee, United and the Owner
Trustee from internal counsel for the Owner Participant, in form and
substance reasonably satisfactory to the Pass Through Trustee.
(xiv) The Pass Through Trustee shall have received an
independent insurance broker's report, and certificates of insurance,
in form and substance reasonably satisfactory to it, as to the due
compliance with the terms of Section 4.03 of each 1997 Indenture with
respect to the Owned Aircraft and Section 11 of each of the Leases
with respect to the Leased Aircraft.
(xv) The Pass Through Trustee shall have received a report
from each of the Appraisers as to the base value of the Aircraft, in
form and substance satisfactory to the Pass Through Trustee and the
Sellers.
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(xvi) The conditions precedent to the transactions
specified in the Purchase Agreement shall have been satisfied (or
waived) in accordance with the terms thereof.
(xvii) With respect to each Owned Aircraft, the FAA ▇▇▇▇ of
Sale (as defined in the applicable Owned Aircraft Indenture) and the
applicable Owned Aircraft Indenture shall have been duly filed with
the FAA.
(xviii) With respect to each Leased Aircraft, the applicable
1994 Indenture, the applicable Third Amendment to Lease Agreement and
the applicable First Amendment to Trust Agreement shall have been duly
filed with the FAA.
(xix) With respect to each Leased Aircraft, the applicable
Indenture Trustee shall have received the "original" copy of the
related Lease and Lease Supplement.
(xx) The conditions precedent under each Participation
Agreement relating to an Owned Aircraft shall have been satisfied (or
waived) in accordance with the terms thereof.
Promptly upon the recording of the Owned Aircraft Indentures pursuant to the
Federal Aviation Act, United shall cause ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel
in Oklahoma City, Oklahoma, to deliver to the Pass Through Trustee an opinion
as to the due and valid registration of the Owned Aircraft in the name of
United, the due recording by the FAA of the FAA ▇▇▇▇ of Sale and the Owned
Aircraft Indentures and the lack of any intervening filings with respect to the
Owned Aircraft. Promptly upon recording of the 1994 Indentures, the Third
Amendments to Leases and the First Amendments to Trust Agreements pursuant to
the Federal Aviation Act, United shall cause ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇, special
counsel in Oklahoma City, Oklahoma, to deliver to the Pass Through Trustee an
opinion as to the due recording thereof and the lack of filing of any
intervening documents with respect to the applicable Aircraft.
(b) Conditions Precedent to the Obligations of Sellers. The
obligations of each Seller to participate in the transactions contemplated
hereby and to enter into the Fundamental Documents to which such Seller is a
party are all subject to the fulfillment to the satisfaction of or waiver by
such Seller, on or prior to the Closing Date, of the following conditions
precedent:
(i) Those documents described in Section 4(a)(iii) shall
have been duly authorized, executed and delivered by the respective
party or parties thereto (other than such Seller) in the manner
specified in Section 4(a)(iii), shall each be satisfactory in form and
substance to such Seller, shall be in full force and effect on the
Closing Date, and an executed counterpart of each thereof (other than
the Equipment Notes) shall have been delivered to such Sellers or
counsel for such Seller.
(ii) Such Seller shall have received a copy of the
organizational documents, by-laws and general authorizing resolutions
of the boards of directors (or executive committees) or other
satisfactory evidence of authorization of the other Seller, each
Indenture Trustee, the Pass Through Trustee and the Subordination
Agent, certified as of the Closing Date by
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the Secretary or an Assistant Secretary of each such party,
respectively, that authorize the execution, delivery and performance
by such other Seller, each Indenture Trustee, the Pass Through Trustee
and the Subordination Agent, respectively, of all the Fundamental
Documents to which each such party is a party, together with such
other documents and evidence with respect to such other Seller, each
Indenture Trustee, the Pass Through Trustee and the Subordination
Agent as such Seller or its counsel may reasonably request in order to
establish the consummation of the transactions contemplated by this
Agreement, the taking of all corporate proceedings in connection
therewith and compliance with the conditions set forth herein.
(iii) A copy of the certificate of incorporation and
by-laws, certified as of the Closing Date by the Secretary or
Assistant Secretary of the Owner Participant, together with such other
documents and evidence with respect to the Owner Participant as such
Seller or its counsel may reasonably request in order to establish the
consummation of the transactions contemplated by this Agreement, the
taking of all corporate proceedings in connection therewith and
compliance with the conditions set forth herein;
(iv) A certificate signed by the Secretary or an Assistant
Secretary of the other Seller, each Indenture Trustee, the Pass
Through Trustee and the Subordination Agent as to the Person or
Persons authorized to execute and deliver this Agreement and any other
Fundamental Document to be executed on behalf of such party in
connection with the transactions contemplated hereby and as to the
signature of such Person or Persons.
(v) The representations and warranties of the other
Seller, each Indenture Trustee, the Pass Through Trustee and the
Subordination Agent contained in Section 5, Section 6 or Section 7, as
applicable, shall be true and correct in all material respects as of
the Closing Date as though made on and as of such date except to the
extent that such representations and warranties relate solely to an
earlier date (in which event such representations and warranties shall
have been true and correct in all material respects on and as of such
earlier date); and each Seller shall have received a certificate
signed, in the case of United, by the Chairman of the Board, the
President, any Vice President or any Assistant Vice President or, in
the case of the Owner Trustee, any Indenture Trustee, the Pass Through
Trustee or the Subordination Agent, by a Responsible Officer of the
Owner Trustee, such Indenture Trustee, the Pass Through Trustee and
the Subordination Agent, respectively, certifying as to the foregoing
matters with respect to itself.
(vi) Such Seller shall have received the opinions set
forth in Sections 4(a)(vii)-4(a)(xiii) (except receipt by United of
the opinions set forth in Section 4(a)(vii) shall not be a condition
precedent to its obligations hereunder), in each case addressed to
such Seller and dated the Closing Date and otherwise in form and
substance satisfactory to such Seller.
(vii) Such Seller shall have received a copy of the reports
required to be delivered pursuant to Section 4(a)(xv).
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(viii) The conditions precedent to the transactions
specified in the Purchase Agreement shall have been satisfied (or
waived) in accordance with the terms thereof.
(ix) No change shall have occurred after the date of the
execution and delivery of this Agreement in applicable law or
regulations thereunder or interpretations thereof by appropriate
regulatory authorities which, in the opinion of such Seller, would
make it a violation of law or regulations for such Seller to enter
into any transaction contemplated by the Fundamental Documents.
SECTION 5. Representations, Warranties and Covenants of
United. United represents, warrants and covenants to the Owner Trustee, the
Pass Through Trustee and each Indenture Trustee that:
(a) United is a corporation duly organized and validly
existing in good standing pursuant to the laws of the State of Delaware; is an
"air carrier" within the meaning of 49 U.S.C. 40102(a)(15); holds a certificate
of public convenience and necessity in accordance with 49 U.S.C. Section 41102,
and an air carrier operating certificate issued by the Secretary of
Transportation pursuant to Chapter 447 of Title 49 of United States Code for
aircraft capable of carrying 10 or more individuals or 6,000 pounds or more of
cargo, is a "citizen of the United States" as defined in 49 U.S.C. Section
40102; has its chief executive office (as such term is defined in Article 9 of
the Uniform Commercial Code) in Elk Grove Township, Illinois; is duly qualified
to do business as a foreign corporation in each jurisdiction in which its
operations or the nature of its business requires, except where the failure to
be so qualified would not have a material adverse effect on the ability of
United to perform its obligations under the Fundamental Documents to which it
is a party; holds all material licenses, certificates, permits and franchises
from the appropriate agencies of the United States of America and/or all other
governmental authorities having jurisdiction, necessary to authorize United to
engage in all transport and to carry on scheduled passenger service, in each
case as presently conducted; and has, or had on the respective dates of
execution thereof, the corporate power and authority to conduct its business as
it is presently being conducted, and to enter into and perform its obligations
under this Agreement, the Equipment Notes issued under the 1997 Indentures and
each other Fundamental Document to which it is a party.
(b) The execution, delivery and performance by United of
this Agreement, the Equipment Notes issued under the 1997 Indentures and each
other Fundamental Document to which it is a party have been duly authorized by
all necessary corporate action on the part of United, do not require any
stockholder approval or approval or consent of any trustee or holders of any
indebtedness or obligations of United, except such as have been duly obtained,
and none of the execution, delivery and performance by United of this
Agreement, such Equipment Notes or such Fundamental Documents contravenes any
law, judgment, governmental rule, regulation or order binding on United or the
certificate of incorporation or by-laws of United or contravenes the provisions
of, or constitutes a default under, or results in the creation of any Lien
(other than Permitted Liens (as defined in the Indentures)) upon the property
of United under, its certificate of incorporation or bylaws, or any indenture,
mortgage, chattel mortgage, deed of trust, conditional sales contract, bank
loan or credit agreement or other agreement or instrument to which United is
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a party or by which it or its properties may be bound or affected which
contravention, default or Lien, individually or in the aggregate, would be
reasonably likely to have a material adverse effect on the ability of United to
perform its obligations under the Fundamental Documents to which it is a party.
(c) Neither the execution and delivery by United of this
Agreement, the Equipment Notes issued under the 1997 Indentures or any other
Fundamental Document to which it is a party nor the performance by United of
its obligations hereunder or thereunder require the consent or approval of, the
giving of notice to, or the registration with, or the taking of any other
action in respect of any federal, state, local or foreign government authority
or agency, except for (A) the registration of the Exchange Certificates (as
defined in the Basic Pass Through Trust Agreement), if any, pursuant to the
provisions of the Pass Through Trust Agreements under the Securities Act of
1933, as amended, and under the securities laws of any state in which the
Exchange Certificates may be offered for sale if the laws of such state require
such action, (B) the qualification of each Pass Through Trust Agreement under
the Trust Indenture Act of 1939, as amended, which qualification will be duly
obtained upon the effectiveness of any Registration Statement (as defined in
the Registration Rights Agreement) pursuant to an order of the Securities and
Exchange Commission, (C) the filings referred to in Section 4(a)(iv), (D)
authorizations, consents, approvals, actions, notices and filings required to
be obtained, taken, given or made, the failure to obtain, take, give or make
would not have a material adverse effect on the financial condition, properties
or results of operations of United, (E) any normal periodic and other reporting
requirements under the applicable rules and regulations of the Federal Aviation
Administration ("FAA") to the extent required to be given or obtained after the
Closing Date, and (F) the recordings with the FAA described in the opinion
referred to in Section 4(a)(xi).
(d) This Agreement, the Equipment Notes issued under a
1997 Indentures and each other Fundamental Document to which United is a party
have been duly executed and delivered by United and constitute legal, valid and
binding obligations of United enforceable against United in accordance with the
terms thereof, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity, whether considered in
a proceeding at law or in equity.
(e) There has not occurred any event that constitutes an
Indenture Default under any Indenture that is presently continuing and there
has not occurred any event that constitutes or would, with the passage of time
or the giving of notice, or both, constitute an Event of Loss (as defined in
the applicable Indenture or Lease, as the case may be) under any Indenture or
Lease.
(f) Neither United nor anyone acting on behalf of United
has offered any interest in any Pass Through Certificate or any Equipment Note
in a manner that would violate the Securities Act of 1933, as amended, the
regulations thereunder, administrative and judicial interpretation thereof or
the securities laws, rules or regulations of any state.
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(g) Neither United nor any subsidiary of United is an
"investment company" or a company "controlled by an investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(h) Except for the proceedings described in the
discussion of Legal Proceedings in United's Annual Report on Form 10-K for the
year ended December 31, 1996 and subsequently filed Form 10-Qs filed prior to
the Closing Date, there are no pending or, to the knowledge of United,
threatened actions or proceedings before any court or administrative agency
which individually (or in the aggregate in the case of any group of related
lawsuits) would have a material adverse effect on the financial condition of
United or the ability of United to perform its obligations hereunder or under
any Fundamental Document to which United is a party.
(i) None of the proceeds from the sale of the Equipment
Notes will be used directly or indirectly by United to purchase or carry any
"margin stock" as such term is defined in Regulation G or U of the Board of
Governors of the Federal Reserve System.
(j) United agrees to pay to the Subordination Agent any
amounts required to be paid by the Subordination Agent pursuant to Sections
2.03, 3.01, 3.02, 3.03, 3.09, 7.05 and 7.07 of any Primary Liquidity Facility.
(k) United agrees to give each Indenture Trustee and the
Pass Through Trustee at least 30 days' prior written notice of any relocation
of its chief executive office from its present location.
(l) If United were to become a debtor under the
Bankruptcy Code, the Owner Trustee as lessor of the Leased Aircraft under the
Leases, and the Indenture Trustee, as assignee of the Owner Trustee's rights
under the Leases pursuant to the 1994 Indentures, and the Indenture Trustee as
mortgagee under the 1997 Indentures, would be entitled to the benefits of
Section 1110 of the Bankruptcy Code with respect to the relevant Aircraft.
(m) United shall not issue Series D Equipment Notes
pursuant to any Owned Aircraft Indenture unless it shall have obtained written
confirmation from each Rating Agency that the issuance of such Series D
Equipment Notes will not result in (i) a reduction of the rating for any Class
of Pass Through Certificates below the then current rating for such Class of
Pass Through Certificates or (ii) a withdrawal or suspension of the rating of
any Class of Pass Through Certificates.
(n) Each Aircraft has been duly certified by the FAA as
to type and airworthiness and such certification remains in full force and
effect.
(o) With respect to each Lease relating to a Leased
Aircraft, such Lease, the Owner Trustee's FAA ▇▇▇▇ of Sale, the First Amendment
to Lease, the Second Amendment to Lease and the Trust Agreement have been duly
recorded with the FAA.
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(p) Each Leased Aircraft has been registered with the FAA
in the name of the applicable Owner Trustee and United has authority to operate
the Aircraft.
(q) With respect to each Lease relating to a Leased
Aircraft, the applicable Third Amendment to Lease, First Amendment to Trust
Agreement and Trust Indenture have been duly filed for recording with the FAA
pursuant to the Federal Aviation Act.
(r) With respect to the Owned Aircraft, the applicable
1997 Indenture has been duly filed for recording with the FAA pursuant to the
Federal Aviation Act.
SECTION 6. Representations, Warranties and Covenants of
SSBT and the Owner Trustee. (a) State Street Bank and Trust Company of
Connecticut, National Association, in its individual capacity ("SSBT")
represents and warrants to United, the Indenture Trustees, the Pass Through
Trustee and the Subordination Agent that:
(i) SSBT is a national banking association duly
organized and validly existing in good standing under the laws
of the United States of America and has, or had on the
respective dates of execution thereof, the corporate power and
authority to enter into and perform this Agreement, the
Equipment Notes issued under the 1994 Indentures and each
other Operative Document to which it is a party;
(ii) each of this Agreement, the Equipment Notes
issued under the 1994 Indentures and each other Operative
Document to which SSBT or the Owner Trustee is a party has
been duly authorized by all necessary corporate action on its
part, and neither the execution and delivery thereof nor the
performance by SSBT or the Owner Trustee of any of the terms
and conditions of this Agreement, such Equipment Notes or such
other Operative Documents to which SSBT or the Owner Trustee
is a party will violate any federal or Connecticut law or
regulation relating to its banking or trust powers or
contravene or result in any breach of, or constitute any
default under, its charter or by-laws or the provisions of any
indenture, mortgage, contract or other agreements to which it
is a party or by which its properties may be bound or
affected;
(iii) each of the Operative Documents to which SSBT
or the Owner Trustee is a party will have been duly executed
and delivered by it by one of its officers who is duly
authorized to execute and deliver such Operative Documents,
and each of this Agreement and the other Operative Documents
to which SSBT or the Owner Trustee is a party will, on the
Closing Date, constitute a legal, valid and binding obligation
of SSBT or the Owner Trustee, as the case may be, enforceable
against it in accordance with the terms thereof, except as the
same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
rights of creditors generally and by general principles of
equity, whether considered in a proceeding at law or in
equity;
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(iv) the Trust Estate (as defined in the Trust
Agreements) is free and clear of Lessor Liens (as defined in
each of the 1994 Indentures) attributable to SSBT, and there
are no Liens affecting the title of the Owner Trustee to the
Leased Aircraft resulting from any act or claim against SSBT
or the Owner Trustee arising out of any event or condition not
related to the ownership, leasing, use or operation of the
Leased Aircraft or to any other transaction contemplated by
this Agreement or any of the other Fundamental Documents,
including any Lien resulting from the nonpayment by SSBT of
any Taxes imposed or measured by its net income;
(v) there has not occurred any event that
constitutes (or to the best of its knowledge, with the passage
of time or the giving of notice or both, would constitute) an
Indenture Default under any 1994 Indenture that has been
caused by or relates to SSBT or the Owner Trustee and that is
presently continuing;
(vi) the principal place of business of SSBT and
the Owner Trustee is Hartford, Connecticut, and the place
where its records concerning the Leased Aircraft and all its
interest in, to and under all documents relating to the Trust
Estate (as defined in the Trust Agreements), is located at
Hartford, Connecticut, and SSBT agrees that it will not change
the location of such office to a location outside Hartford,
Connecticut, without providing written notice to United, the
Indenture Trustees and the Pass Through Trustee within 30 days
following such change in location;
(vii) no consent, approval, order or authorization
of, giving of notice to, or registration or filing with, or
taking of any other action in respect of, any Connecticut
state or local governmental authority or agency or any United
States federal governmental authority or agency regulating the
banking or trust powers of SSBT is required for the execution
and delivery of, or the carrying out by, SSBT, of any of the
transactions contemplated by any of the Operative Documents to
which SSBT is or is to be a party, other than any such
consent, approval, order, authorization, registration, notice
or action as has been duly obtained, given or taken;
(viii) SSBT has not directly or indirectly offered
any Pass Through Certificate, Equipment Note issued under any
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any interest in or to the Trust Estate (as
defined in the applicable Trust Agreement), any Trust
Agreement or any similar interest for sale to, or solicited
any offer to acquire any of the same from, any Person other
than the Indenture Trustees, the Pass Through Trustee and the
Owner Participant under the applicable Trust Agreement; and
SSBT has not authorized any Person to act on its behalf (other
than for purposes of this paragraph, United, as lessee of the
Leased Aircraft, and the Initial Purchasers) to offer directly
or indirectly any Pass Through Certificate, Equipment Note or
any interest in and to the Trust Estate (as defined in the
applicable Trust Agreement), any Trust Agreement or any
similar interest for sale to, or to solicit any offer to
acquire any of the same from, any Person;
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(ix) SSBT is a "citizen of the United States" as
defined in 49 U.S.C. Section 40102(a)(15) (without making use
of a voting trust agreement, voting powers agreement or
similar arrangements); and
(x) there are no pending or threatened actions or
proceedings against SSBT or the Owner Trustee before any court
or administrative agency which, if determined adversely to it,
would have a material adverse effect on the ability of SSBT or
the Owner Trustee, as the case may be, to perform its
obligations under this Agreement, the Equipment Notes issued
under the 1994 Indentures or any other Operative Document
executed by SSBT or the Owner Trustee in connection with the
transactions contemplated by the Fundamental Documents.
(b) SSBT solely in its capacity as Owner Trustee further
represents and warrants that:
(i) assuming due authorization, execution and
delivery of the Trust Agreements and the Leased Aircraft
Participation Agreements by the Owner Participant, the Trust
Agreements grant the Owner Trustee the power and authority to
enter into this Agreement, the Equipment Notes issued under
the 1994 Indentures and the other Operative Documents to which
it is a party and to perform its obligations hereunder and
thereunder;
(ii) assuming due authorization, execution and
delivery of the Owner Trust Agreement and the Leased Aircraft
Participation Agreements by the Owner Participant, this
Agreement, the Equipment Notes issued under the 1994
Indentures and each other Operative Document to which the
Owner Trustee is party has been, or on the Closing Date will
have been, duly executed and delivered by it, and each of this
Agreement, such Equipment Notes and such other Operative
Documents to which the Owner Trustee is a party on the Closing
Date, will constitute legal, valid and binding obligations of
the Owner Trustee, enforceable against it in accordance with
the terms thereof, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the rights of creditors generally
and by general principles of equity, whether considered in a
proceeding at law or in equity;
(iii) the Owner Trustee has not directly or
indirectly offered any Pass Through Certificate, Equipment
Note issued under any ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any interest in or to
the Trust Estate (as defined in the applicable Trust
Agreement), any Trust Agreement or any similar interest for
sale to, or solicited any offer to acquire any of the same
from, any Person other than the Indenture Trustees, the Pass
Through Trustee and the Owner Participant under the applicable
Trust Agreement; and it has not authorized any Person to act
on its behalf (other than for purposes of this paragraph,
United, as lessee of the Leased Aircraft, and the Initial
Purchasers) to offer directly or indirectly any Pass Through
Certificate, Equipment Note or any
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interest in and to the Trust Estate (as defined in the
applicable Trust Agreement), any Trust Agreement or any
similar interest for sale to, or to solicit any offer to
acquire any of the same from, any Person;
(iv) there are no pending or threatened actions or
proceedings against the Owner Trustee before any court or
administrative agency which, if determined adversely to it,
would have a material adverse effect on its ability to perform
its obligations under this Agreement, the Equipment Notes
issued under the 1994 Indentures or any other Operative
Document to which the Owner Trustee is a party or any other
documents executed by it in connection with the transactions
contemplated by the Fundamental Documents.
SECTION 7. Representations, Warranties and Covenants of
Other Parties. Each of the parties below represents, warrants and covenants to
each of the other parties to this Agreement as follows:
(a) Each Indenture Trustee represents, warrants and
covenants that:
(i) such Indenture Trustee is a national banking
association duly organized, validly existing and in good
standing under the laws of the United States of America, is a
"citizen of the United States" as defined in 49 U.S.C. Section
40102(a)(15) (without making use of a voting trust agreement,
voting powers agreement or similar arrangements) and will
resign as Indenture Trustee promptly after it obtains actual
knowledge that it has ceased to be such a citizen, and has, or
had on the respective dates of execution thereof, the full
corporate power, authority and legal right under the laws of
the State of Utah and the United States of America pertaining
to its banking, trust and fiduciary powers to execute and
deliver this Agreement and each other Fundamental Document to
which it is a party, to authenticate the Equipment Notes and
to carry out its obligations under this Agreement and each
other Fundamental Document to which it is a party;
(ii) the execution and delivery by such Indenture
Trustee of this Agreement and each other Fundamental Document
to which it is a party, the authentication of the Equipment
Notes and the performance by such Indenture Trustee of its
obligations under this Agreement and each other Fundamental
Document to which it is a party have been duly authorized by
such Indenture Trustee and will not violate its charter or
by-laws, the provisions of any indenture, mortgage, contract
or other agreement to which it is a party or by which it is
bound or any federal or Utah law or regulation relating to the
banking, trust or fiduciary powers of such Indenture Trustee;
(iii) this Agreement and each other Fundamental
Document to which such Indenture Trustee is a party have been
duly authorized, executed and delivered by such Indenture
Trustee; this Agreement constitutes, and each Fundamental
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Document to which such Indenture Trustee is a party, when it
has been executed and delivered by such Indenture Trustee,
will constitute, the legal, valid and binding obligations of
such Indenture Trustee enforceable against it in accordance
with their respective terms, except as the same may be limited
by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general principles of equity, whether
considered in a proceeding at law or in equity;
(iv) such Indenture Trustee (in the case of the
1994 Indenture Trustees) has possession of the chattel paper
original of each Lease;
(v) no consent, approval, order or authorization
of, giving of notice to, or registration or filing with, or
taking of any other action in respect of, any Utah state or
local governmental authority or agency or any United States
federal governmental authority or agency regulating the
banking or trust powers of such Indenture Trustee is required
for the execution and delivery of, or the carrying out by,
such Indenture Trustee, of any of the transactions
contemplated by any of the Fundamental Documents to which such
Indenture Trustee is or is to be a party, other than any such
consent, approval, order, authorization, registration, notice
or action as has been duly obtained, given or taken; and
(vi) there are no pending or threatened actions or
proceedings against such Indenture Trustee before any court or
administrative agency which, if determined adversely to it,
would have a material adverse effect on the ability of such
Indenture Trustee to perform its obligations under this
Agreement or any other Fundamental Document executed by such
Indenture Trustee in connection with the transactions
contemplated by the Fundamental Documents.
(b) The Pass Through Trustee represents, warrants and
covenants that:
(i) the Pass Through Trustee is a national
banking association duly organized, validly existing and in
good standing under the laws of the United States of America,
and has the full corporate power, authority and legal right
under the laws of the State of Utah and the United States of
America pertaining to its banking, trust and fiduciary powers
to execute and deliver this Agreement and each other
Fundamental Document to which it is a party and to perform its
obligations hereunder and thereunder;
(ii) this Agreement and each other Fundamental
Document to which the Pass Through Trustee is a party have
been duly authorized, executed and delivered by the Pass
Through Trustee; this Agreement and each other Fundamental
Document to which the Pass Through Trustee is a party
constitute the legal, valid and binding obligations of the
Pass Through Trustee enforceable against it in accordance with
their respective terms, except as the same may be limited by
applicable bankruptcy,
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insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general
principles of equity, whether considered in a proceeding at
law or in equity;
(iii) none of the execution, delivery and
performance by the Pass Through Trustee of this Agreement or
any other Fundamental Document to which the Pass Through
Trustee is a party, the purchase by the Pass Through Trustee
of the Equipment Notes pursuant to this Agreement, or the
issuance and sale of the Pass Through Certificates pursuant to
the Pass Through Trust Agreements, and the Purchase
Agreements, contravenes any law, rule or regulation of the
State of Utah or any United States governmental authority or
agency regulating the Pass Through Trustee's banking, trust or
fiduciary powers or any judgment or order applicable to or
binding on the Pass Through Trustee and do not contravene or
result in any breach of, or constitute a default under, the
Pass Through Trustee's charter or by-laws or any agreement or
instrument to which the Pass Through Trustee is a party or by
which it or any of its properties may be bound;
(iv) neither the execution and delivery by the
Pass Through Trustee of this Agreement or any of the other
Fundamental Documents to which the Pass Through Trustee is a
party, nor the consummation by the Pass Through Trustee of any
of the transactions contemplated hereby or thereby, requires
the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action with
respect to, any Utah governmental authority or agency or any
Federal governmental authority or agency regulating the Pass
Through Trustee's banking, trust or fiduciary powers;
(v) there are no Taxes payable by the Pass
Through Trustee imposed by the State of Utah or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by the Pass Through
Trustee of this Agreement or any other Fundamental Document to
which the Pass Through Trustee is a party (other than
franchise or other taxes based on or measured by any fees or
compensation received by the Pass Through Trustee for services
rendered in connection with the transactions contemplated by
the Pass Through Trust Agreements), and there are no Taxes
payable by the Pass Through Trustee imposed by the State of
Utah or any political subdivision thereof in connection with
the acquisition, possession or ownership by the Pass Through
Trustee of any of the Equipment Notes (other than franchise or
other taxes based on or measured by any fees or compensation
received by the Pass Through Trustee for services rendered in
connection with the transactions contemplated by the Pass
Through Trust Agreements);
(vi) there are no pending or threatened actions or
proceedings against the Pass Through Trustee before any court
or administrative agency which individually or in the
aggregate, if determined adversely to it, would have a
material adverse effect on
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the ability of the Pass Through Trustee to perform its
obligations under this Agreement or any other Fundamental
Document to which the Pass Through Trustee is a party;
(vii) except for the issue and sale of the
Equipment Notes contemplated hereby, the Pass Through Trustee
has not directly or indirectly offered any Equipment Notes for
sale to any Person or solicited any offer to acquire any
Equipment Notes from any Person, nor has the Pass Through
Trustee authorized anyone to act on its behalf to offer
directly or indirectly any Equipment Note for sale to any
Person, or to solicit any offer to acquire any Equipment Note
from any Person; and the Pass Through Trustee is not in
default under any Pass Through Trust Agreement; and
(viii) the Pass Through Trustee is not directly or
indirectly controlling, controlled by or under common control
with any Initial Purchaser or United.
(c) The Subordination Agent represents, warrants and
covenants that:
(i) the Subordination Agent is a national banking
association duly organized, validly existing and in good
standing under the laws of the United States of America, and
has the full corporate power, authority and legal right under
the laws of the State of Utah and the United States of America
pertaining to its banking, trust and fiduciary powers to
execute and deliver this Agreement and each other Fundamental
Document to which it is a party and to perform its obligations
hereunder and thereunder;
(ii) this Agreement and each other Fundamental
Document to which it is a party have been duly authorized,
executed and delivered by the Subordination Agent; this
Agreement and each other Fundamental Document to which it is a
party constitute the legal, valid and binding obligations of
the Subordination Agent enforceable against it in accordance
with their respective terms, except as the same may be limited
by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general principles of equity, whether
considered in a proceeding at law or in equity;
(iii) none of the execution, delivery and
performance by the Subordination Agent of this Agreement or
any other Fundamental Document to which the Subordination
Agent is a party contravene any law, rule or regulation of the
State of Utah or any United States governmental authority or
agency regulating the Subordination Agent's banking, trust or
fiduciary powers or any judgment or order applicable to or
binding on the Subordination Agent and does not contravene or
result in any breach of, or constitute a default under, the
Subordination Agent's charter or by-laws or any agreement or
instrument to which the Subordination Agent is a party or by
which it or any of its properties may be bound;
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(iv) neither the execution and delivery by the
Subordination Agent of this Agreement or any other Fundamental
Document to which the Subordination Agent is a party nor the
consummation by the Subordination Agent of any of the
transactions contemplated hereby or thereby requires the
consent or approval of, the giving of notice to, the
registration with, or the taking of any other action with
respect to, any Utah governmental authority or agency or any
federal governmental authority or agency regulating the
Subordination Agent's banking, trust or fiduciary powers;
(v) there are no Taxes payable by the
Subordination Agent imposed by the State of Utah or any
political subdivision or taxing authority thereof in
connection with the execution, delivery and performance by the
Subordination Agent of this Agreement or any other Fundamental
Document to which the Subordination Agent is a party (other
than franchise or other taxes based on or measured by any fees
or compensation received by the Subordination Agent for
services rendered in connection with the transactions
contemplated by the Intercreditor Agreement or any of the
Liquidity Facilities), and there are no Taxes payable by the
Subordination Agent imposed by the State of Utah or any
political subdivision thereof in connection with the
acquisition, possession or ownership by the Subordination
Agent of any of the Equipment Notes (other than franchise or
other taxes based on or measured by any fees or compensation
received by the Subordination Agent for services rendered in
connection with the transactions contemplated by the
Intercreditor Agreement or any of the Liquidity Facilities);
(vi) there are no pending or threatened actions or
proceedings against the Subordination Agent before any court
or administrative agency which individually or in the
aggregate, if determined adversely to it, would materially
adversely affect the ability of the Subordination Agent to
perform its obligations under this Agreement or any other
Fundamental Document to which the Subordination Agent is a
party;
(vii) the Subordination Agent has not directly or
indirectly offered any Equipment Notes for sale to any Person
or solicited any offer to acquire any Equipment Notes from any
Person, nor has the Subordination Agent authorized anyone to
act on its behalf to offer directly or indirectly any
Equipment Note for sale to any Person, or to solicit any offer
to acquire any Equipment Note from any Person; and the
Subordination Agent is not in default under any Liquidity
Facility; and
(viii) the Subordination Agent is not directly or
indirectly controlling, controlled by or under common control
with any Initial Purchaser or United.
SECTION 8. Notices. Unless otherwise specifically
provided herein, all notices required or permitted by the terms of this
Agreement shall be in English and in writing, and any such
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notice shall become effective five days after being deposited in the United
States mail, with proper postage for first- class registered or certified mail
prepaid, or when delivered personally or, if promptly confirmed by mail as
provided above, when dispatched by facsimile or other written
telecommunication, addressed, if to United, the Owner Trustee, the Pass Through
Trustee, the Subordination Agent or any Indenture Trustee, at their respective
addresses or facsimile numbers set forth on Schedule 1.
SECTION 9. Expenses. All of the reasonable
out-of-pocket costs, fees and expenses incurred by the Owner Trustee, the Owner
Participant, the Pass Through Trustee, the Subordination Agent, the Primary
Liquidity Provider and the Indenture Trustees in connection with the
transactions contemplated by this Agreement shall be paid on or prior to the
Closing Date by United on a net after-tax basis.
SECTION 10. Miscellaneous. (a) At any time that United
shall have the right, pursuant to Section 2.2(b) of the Intercreditor Agreement
to direct the investment and reinvestment by the Subordination Agent of funds
on deposit in the Trust Accounts in Eligible Investments, United shall
reimburse the Subordination Agent for any losses charged against the principal
amounts of such Investments.
(b) Each of the parties hereto agrees that the opinions
delivered on behalf of such party to the Pass Through Trustee pursuant to
Sections 4(a)(vii) - 4(a)(xiii) or to the Sellers pursuant to Section 5(b)(vi)
shall be addressed to, among others, the Initial Purchasers and the Owner
Participant.
(c) Provided that the transactions contemplated hereby
have been consummated, and except as otherwise provided for herein, the
representations, warranties and agreements herein of United, the Owner Trustee,
each Indenture Trustee, the Subordination Agent and the Pass Through Trustee,
and United's, the Owner Trustee's, each Indenture Trustee's, the Subordination
Agent's and the Pass Through Trustee's obligations hereunder, shall survive the
expiration or other termination of this Agreement and the other agreements
referred to herein.
(d) This Agreement may be executed in any number of
counterparts and each counterpart of this Agreement, including a signature page
executed by each of the parties hereto, shall be an original counterpart of
this Agreement, but all of such counterparts together shall constitute one
instrument. Neither this Agreement nor any of the terms hereof may be
terminated, amended or waived orally, but only by an instrument in writing
signed by the party against which the enforcement of the termination, amendment
or waiver is sought; and no such termination, amendment or waiver shall be
effective unless a signed copy thereof shall have been delivered to each
Indenture Trustee. The index preceding this Agreement and the headings of the
various Sections of this Agreement are for convenience of reference only and
shall not modify, define, expand or limit any of the terms or provisions
hereof. The terms of this Agreement shall be binding upon, and shall inure to
the benefit of, United and its successors and permitted assigns, the Owner
Trustee and its successors as Owner Trustee, the Pass Through Trustee and its
successors as Pass Through Trustee (and any additional trustee properly
appointed) under any of the Trust
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Supplements, any Indenture Trustee and its successors as Indenture Trustee (and
any additional Indenture Trustee properly appointed) under any Indenture and
the Subordination Agent and its successors as Subordination Agent under the
Intercreditor Agreement.
(e) This Agreement is not intended to, and shall not,
provide any Person not a party hereto with any rights of any nature whatsoever
against any of the parties hereto, and no Person not a party hereto shall have
any right, power or privilege in respect of, or have any benefit or interest
arising out of, this Agreement; provided, however, that each of the parties
hereto agrees and acknowledges that each of the Primary Liquidity Provider, the
Above- Cap Liquidity Provider and the Owner Participant shall be a third party
beneficiary of each of the representations and warranties made herein by such
party, and that the Primary Liquidity Provider, the Above-Cap Liquidity
Provider and the Owner Participant may rely on such representations and
warranties to the same extent as if such representations and warranties were
made to the Primary Liquidity Provider, the Above-Cap Liquidity Provider and
the Owner Participant directly. The terms of this Agreement shall inure to the
benefit of the Primary Liquidity Provider, the Above-Cap Liquidity Provider and
the Owner Participant, its successors and permitted assigns.
(f) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE. THIS AGREEMENT IS BEING DELIVERED IN
THE STATE OF ILLINOIS.
(g) Each of the parties hereto hereby irrevocably and
unconditionally:
(i) submits for itself and its property in any
legal action or proceeding relating to this Agreement or any
other Fundamental Document, or for recognition and enforcement
of any judgment in respect hereof or thereof, to the
non-exclusive general jurisdiction of the Circuit Court of
Illinois, ▇▇▇▇ County, or the United States District Court for
the Northern District of Illinois;
(ii) consents that any such action or proceeding
may be brought in such courts, and waives any objection that
it may now or hereafter have to the venue of any such action
or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(iii) agrees that service of process in any such
action or proceeding may be effected by mailing a copy thereof
by registered or certified mail (or any substantially similar
form and mail, postage prepaid, to each party hereto at its
address set forth in Schedule I, or at such other address of
which the other Person shall have been notified pursuant
thereto; and
(iv) agrees that nothing herein shall affect the
right to effect service of process in any other manner
permitted by law or shall limit the right to ▇▇▇ in any other
jurisdiction.
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(h) EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING
ESTABLISHED, including contract claims, tort claims, breach of duty claims and
all other common law and statutory claims. Each of the parties warrants and
represents that it has reviewed this waiver with its legal counsel, and that it
knowingly and voluntarily waives its jury trial rights following consultation
with such legal counsel. THIS WAIVER IS IRREVOCABLE, AND CANNOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized as of
the day and year first above written.
UNITED AIR LINES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
S-1 NOTE PURCHASE AGREEMENT
30
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its
individual capacity, except as
otherwise provided herein, but
solely as Indenture Trustee, Pass
Through Trustee and
Subordination Agent
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-2 NOTE PURCHASE AGREEMENT
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity, except
as otherwise provided herein, but
solely as Owner Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
S-3 NOTE PURCHASE AGREEMENT
32
SCHEDULE I to
Note Purchase Agreement
NAMES; ADDRESSES AND WIRE INSTRUCTIONS
UNITED:
Address for Notices:
If by U.S. Mail
United Air Lines, Inc.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Vice President and Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If by Overnight Delivery Service
United Air Lines, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Vice President and Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
PASS THROUGH TRUSTEE, SUBORDINATION AGENT AND INDENTURE TRUSTEE:
Address for Notices:
First Security Bank, National Association
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Corporate Trust Department
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
NOTE PURCHASE AGREEMENT
33
OWNER TRUSTEE:
Address for Notices:
State Street Bank and Trust Company
of Connecticut, National Association
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ and Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Department
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Overnight Delivery Service:
State Street Bank and Trust Company of Connecticut,
National Association
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ and Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Department
NOTE PURCHASE AGREEMENT
34
SCHEDULE II to
Note Purchase Agreement
PASS THROUGH TRUST SUPPLEMENTS
1. Trust Supplement No. 1997-1-A-1, dated as of December 23, 1997,
between United and First Security Bank, National Association, as
Trustee.
2. Trust Supplement No. 1997-1-B-1, dated as of December 23, 1997,
between United and First Security Bank, National Association, as
Trustee.
3. Trust Supplement No. 1997-1-C-1, dated as of December 23, 1997,
between United and First Security Bank, National Association, as
Trustee.
4. Trust Supplement No. 1997-1-D-1, dated as of December 23, 1997,
between United and First Security Bank, National Association, as
Trustee.
NOTE PURCHASE AGREEMENT
35
SCHEDULE III to
Note Purchase Agreement
1997 EQUIPMENT NOTES ISSUED BY UNITED,
PURCHASERS AND PURCHASE PRICE
Purchaser Interest Rate Principal Amount
--------- ------------- ----------------
United Airlines
Pass Through Trust
1997-1A Three-Month LIBOR + 0.22% Equipment $ 403,102,000
1997-1B Three-Month LIBOR + 0.325% Equipment $ 96,393,000
1997-1C Three-Month LIBOR + 0.22% Equipment $ 97,926,000
1994 EQUIPMENT NOTES ISSUED BY THE OWNER TRUSTEE,
PURCHASERS AND PURCHASE PRICE
Purchaser Interest Rate Principal Amount
--------- ------------- ----------------
United Airlines
Pass Through Trust
1997-1A Three-Month LIBOR + 0.22% Equipment $42,724,000
1997-1B Three-Month LIBOR + 0.325% Equipment $10,214,000
1997-1C Three-Month LIBOR + 0.22% Equipment $12,074,000
1997-1D Three-Month LIBOR + 0.23% Equipment $11,423,182
NOTE PURCHASE AGREEMENT