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EXHIBIT 4.32
CERTIFICATE PURCHASE AGREEMENT
UNITED AIR LINES ENHANCED PASS THROUGH CERTIFICATES, SERIES 1997-1
$106,607,000 ENHANCED PASS THROUGH CERTIFICATES, SERIES 1997-1B
December 23, 1997
Kreditanstalt fur Wiederaufbau
Xxxxxxxxxxxxxxxxxxx 0-0
X-00000 Xxxxxxxxx xx Xxxx
Xxxxxxx
Ladies and Gentlemen:
First Security Bank, National Association, as Trustee of the
United Airlines 1997-1B Pass Through Trust (the "Seller") and United Air Lines,
Inc. ("United") hereby agree with Kreditanstalt fur Wiederaufbau (the
"Purchaser") as follows:
1. Authorization of Offered Certificates. The United Airlines
1997-1B Pass Through Trust (the "Trust") has authorized the issuance and sale of
$106,607,000 aggregate principal amount of Enhanced Pass Through Certificates,
Series 1997-1B (the "Certificates") to the Purchaser. The Certificates shall be
issued pursuant to a Pass Through Trust Agreement, dated as of December 23,
1997, between United and the Seller, as Trustee, and the Trust Supplement No.
1997-1B-1 to Pass Through Trust Agreement, dated as of December 23, 1997,
between United and the Seller, as Trustee (collectively, the "Trust Agreement").
Capitalized terms used herein without definition shall have the meanings given
such terms in the Trust Agreement.
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Each Certificate shall represent the right to receive
distributions of the proceeds of Trust Property in accordance with the Trust
Agreement. The "Trust Property" shall consist of (i) the Equipment Notes held as
the property of such Trust and all monies at any time paid thereon and all
monies due and to become due thereunder, (ii) funds from time to time deposited
in the related Escrow Account, the related Certificate Account and the related
Special Payments Account, (iii) all rights of such Trust and the Trustee, on
behalf of such Trust, under the Intercreditor Agreement, the Registration Rights
Agreement and the Note Purchase Agreement, including all rights to receive
certain payments thereunder and all monies paid to such Trustee on behalf of
such Trust pursuant to the Intercreditor Agreement, the Registration Rights
Agreement or the Note Purchase Agreement, and (iv) all monies receivable by the
Subordination Agent under the Liquidity Facilities for the Trust. The
Certificates shall be issued in an aggregate principal amount of $106,607,000.
2. Purchase Price. On the basis of the representations,
warranties and agreements contained herein, and subject to the terms and
conditions contained herein, the Purchaser agrees to pay to the Trust an amount
equal to $106,607,000.00 (the "Purchase Price").
3. Closing. (a) The closing of the issuance and sale of the
Certificates (the "Closing") shall be held at 9:00 a.m., Chicago time, at the
Chicago offices of Vedder, Price, Xxxxxxx & Kammholz on December 23, 1997, or at
such other time as shall be satisfactory to the Seller and the Purchaser (the
"Closing Date"). At the Closing, the Seller shall deliver or cause to be
delivered to the Purchaser the Certificates, against payment of the Purchase
Price by the Purchaser by federal funds bank wire transfer or other immediately
available funds to an account to be designated in writing by the Seller at least
one Business Day prior to the Closing Date and registered in the Certificate
Registrar under name of the Purchaser or its nominee.
(b) The Certificates shall be in definitive form or global
form, as specified by the Purchaser, and registered in such names and in such
denominations as the Purchaser shall request in writing not later than one full
business day prior to the Closing Date. The Certificates shall be delivered to
the Purchaser on the Closing Date, with any transfer taxes payable in connection
with the transfer of the Certificates to the Purchaser duly paid, against
payment of the Purchase Price therefor.
4. Distributions. Distributions of principal, any Additional
Payments and interest shall be payable on the Certificates as set forth in the
Trust Agreement.
5. Representations and Warranties of United and the Seller.
United and the Seller incorporate herein by reference all of the representations
and warranties contained in Sections 5, 6 and 7 of the Note Purchase Agreement,
and assign to Purchaser all of their rights, title and interest in and to the
Note Purchase Agreement relating to the Series B Equipment Notes and such
representations and warranties contained therein. In addition, United represents
and warrants to the Purchaser that:
(a) Neither United nor any Affiliate (as defined in Rule
501(b) of Regulation D under the Securities Act) of United has directly, or
through any agent, (i) sold, offered for sale,
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solicited offers to buy or otherwise negotiated in respect of, any security (as
defined in the Securities Act) which is or will be integrated with the sale of
the Certificates in a manner that would require the registration under the
Securities Act of the Certificates or (ii) engaged in any form of general
solicitation or general advertising in connection with the offering of the
Certificates (as those terms are used in Regulation D under the Securities Act)
or in any manner involving a public offering within the meaning of Section 4(2)
of the Securities Act.
(b) Neither United, its Affiliates, nor any person acting on
its or their behalf has engaged or will engage in any directed selling efforts
(within the meaning of Regulation S) with respect to the Certificates, and
United and its Affiliates and any person acting on its or their behalf have
complied and will comply with the offering restrictions requirement of
Regulation S.
(c) It is not necessary in connection with the offer, sale and
delivery of the Certificates to the Purchaser in the manner contemplated by this
Agreement to register the Certificates under the Securities Act or to qualify
the Indenture under the Trust Indenture Act of 1939, as amended.
(d) The Certificates satisfy the requirements set forth in
Rule 144A(d)(3) under the Securities Act.
6. Representations and Warranties of the Purchaser. The
Purchaser represents and warrants to United and the Seller that:
(a) Neither United nor the Seller, nor any person representing
United or the Seller has made any representation with respect to
United, the Seller or the offer or sale of any Certificates, and the
Purchaser has received such information as it deems necessary in order
to make its investment decision.
(b) It is purchasing Certificates having an aggregate
principal amount of not less than $100,000 and each account (if any)
for which it is purchasing Certificates is purchasing Certificates
having an aggregate principal amount of not less than $100,000.
(c) It understands that any subsequent transfer of the
Certificates is subject to certain restrictions and conditions set
forth in the Trust Agreement relating to the Certificates (the
"Agreement"), and it agrees to be bound by, and not to resell, pledge
or otherwise transfer the Certificates except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended
(the "Securities Act").
(d) It understands that the Certificates have not been
registered under the Securities Act, are being sold to it in a
transaction that is exempt from the registration requirements of the
Securities Act and that the Certificates may not be reoffered or resold
except as permitted in the following sentence. It agrees, on its own
behalf and on behalf of any accounts for which it is acting as
hereinafter stated, that, if it should sell any Certificate within two
years after the later of the original issuance of such Certificate and
the last date
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on which such Certificate is owned by United, the Trustee or any
affiliate of any of such persons, it shall do so only (A) in accordance
with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (B) to an institutional "accredited
investor" (as defined below) that, prior to such transfer, furnishes to
the Trustee a signed letter containing representations and agreements
relating to the restrictions on transfer of the Certificates (the form
of which letter can be obtained from the Trustee), (C) outside the
United States in accordance with Rule 904 of Regulation S under the
Securities Act, (D) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act or (E) pursuant to an
effective registration statement under the Securities Act, and it
further agrees to provide to any person purchasing any of the
Certificates from it a notice advising such purchaser that resales of
the Certificates are restricted as stated herein.
(e) It understands that, on any proposed resale of any
Certificates, it shall be required to furnish to United and to the
Trustee such certifications, legal opinions and other information as
United and the Trustee may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. It further
understands that the Certificates purchased by it shall bear a legend
to the foregoing effect.
(f) It is an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of its
investment in the Certificates, and it and any accounts for which it is
acting are each able to bear the economic risks of its or their
investments.
(g) It is acquiring the Certificates purchased by it for its
own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which it exercises
sole investment discretion and not with a view to any distribution of
the Certificates, subject, nevertheless to the understanding that the
disposition of its property shall at all times be and remain within its
control.
(h) Either: (a) it is not acquiring the Certificates with plan
assets of any plan subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the
Internal Revenue Code of 1986, as amended (the "Code"); or (b) its
purchase and holding of the Certificates is exempt from the prohibited
transaction restrictions of Section 406(a) of ERISA and Section 4975 of
the Code by an administrative class prohibited transaction exemption
granted by the Department of Labor.
7. Covenants of United. United hereby covenants and agrees
with the Purchaser as follows for so long as the Purchaser owns any
Certificates:
(a) Neither United nor any Affiliate will sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any security (as
defined in the Securities Act) which could be integrated with the sale of the
Certificates in a manner which would require the registration under the
Securities Act of the Certificates.
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(b) Not to solicit any offer to buy or offer or sell the
Certificates by means of any form of general solicitation or general advertising
(as those terms are used in Regulation D under the Securities Act) or in any
manner involving a public offering within the meaning of Section 4(2) of the
Securities Act.
(c) While any of the Certificates remain "restricted
securities" within the meaning of the Securities Act, to make available, upon
request, to any seller of such Certificates the information specified in Rule
144A(d)(4) under the Securities Act, unless United is then subject to Section 13
or 15(d) of the Exchange Act.
(d) Neither United, its Affiliates nor any person acting on
its or their behalf (other than the Initial Purchasers) will engage in any
directed selling efforts (as that term is defined in Regulation S) with respect
to the Certificates, and United and its Affiliates and each person acting on its
or their behalf (other than the Initial Purchasers) will comply with the
offering restrictions requirement of Regulation S.
(e) During the period of two years after the Closing Date,
United will not, and will not permit any of its affiliates (as defined in Rule
144A under the Securities Act) to resell any of the Certificates which
constitute "restricted securities" under Rule 144A that have been reacquired by
any of them, except in compliance with the Securities Act.
8. Conditions Precedent. The obligation of the Seller to sell
the Certificates and the Purchaser to purchase the Certificates shall be subject
to the fulfillment, on or prior to the Closing Date, of the following conditions
precedent: (a) all conditions precedent specified in the Note Purchase Agreement
shall have been satisfied; (b) the representations and warranties of United, the
Owner Trustee, the Pass Through Trustee and the Indenture Trustee contained in
the Note Purchase Agreement and each other Operative Agreement shall be accurate
as of the Closing Date (except to the extent that they relate solely to an
earlier date in which case they shall be accurate as of such earlier date); (c)
the Purchaser shall have received certificates of the Chief Financial Officer or
the Treasurer of United and appropriate officers of the respective Owner
Trustees, Pass Through Trustees and Indenture Trustees, dated as of the Closing
Date, to such effect; (d) the Seller and the Purchaser shall have received a
copy of each opinion required to be delivered under the Note Purchase Agreement
and dated as of the Closing Date; and (e) the Certificates shall be rated "A1"
by Moody's and "AA-" by Standard & Poor's.
9. Communications and Notices. (a) All communications and
notices among the parties to this Agreement shall be in English and in writing,
and any such notice may be given by United States mail, courier service or
telecopy, and any such notice shall be effective when delivered or received or,
if mailed, three days after deposit in the United States mail with proper
postage for ordinary mail prepaid,
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if to the Seller, to:
First Security Bank, National Association
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Corporate Trust Department
Telecopy: (000) 000-0000
if to United, to:
U.S. Mail Overnight Delivery Service
United Air Lines, Inc. United Air Lines, Inc.
X.X. Xxx 00000 0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000 Elk Xxxxx Xxxxxxxx, XX 00000
Attn: Vice President and Attn: Vice President and
Treasurer Treasurer
Telecopy: (000) 000-0000
or if to the Purchaser, to
Kreditanstalt fur Xxxxxxxxxxxx
Xxxxxxxxxxxxxxxxxxx 0-0
X-00000 Xxxxxxxxx xx Xxxx
Xxxxxxx
Attention: Head of Aircraft Finance Department KIII6-1
Telecopy: 011-49-69-7431-2944
(b) United, the Seller or the Purchaser, by written notice to
the other, may designate additional or different addresses for subsequent
notices or communications.
(c) If a notice or communication is mailed in the manner
provided above within the time prescribed, it is conclusively presumed to have
been duly given, whether or not the addressee receives it. Notwithstanding the
foregoing, all communications or notices to the Seller shall be deemed to be
given only when received by a Responsible Officer of the Seller.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF (OTHER THAN SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW)) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
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11. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions, or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
12. Effect of Headings and Table of Contents. The Section
headings herein are for convenience only and shall not affect the construction
hereof.
13. Successors and Assigns. All covenants, agreements,
representations and warranties in this Agreement by United, the Seller and the
Purchaser shall bind and, to the extent permitted hereby, shall inure to the
benefit of and be enforceable by their respective successors and assigns,
whether so expressed or not (including, without the need for an express
assignment, subsequent holders of the Certificates).
14. Benefits of Agreement. Nothing in this Agreement, express
or implied, shall give to any Person, other than the parties hereto and their
successors hereunder any benefit or any legal or equitable right, remedy or
claim under this Agreement.
15. Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
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If the foregoing is in accordance with your understanding of
its agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it shall become a binding agreement between United, the Seller and the
Purchaser in accordance with its terms.
Very truly yours,
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, as Trustee for the
United Airlines 1997-1B Pass
Through Trust
By: /s/ C. XXXXX XXXXXXX
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Name: C. Xxxxx Xxxxxxx
Title: Vice President
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UNITED AIR LINES, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
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XXXXXXXXXXXXX XXX
XXXXXXXXXXXX
By: /s/ XX. XXXXXXXXX XXXXX
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Name: Xx. Xxxxxxxxx Xxxxx
Title: VP
By: /s/ XXXXXXXX XXXXXX
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Name: Xxxxxxxx Xxxxxx
Title: Senior Project Manager
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