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EXHIBIT 99.5
EXCHANGE AGENT AGREEMENT
The Bank of New York
000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
UAL Corporation Capital Trust I, a Delaware business trust (the "Trust"),
proposes to make an offer (the "Exchange Offer") to exchange its 13 1/4% Trust
Originated Preferred Securities ("TOPrS") for any and all outstanding Series B
Depositary Shares, each representing 1/1,000 of a share of 12 1/4% Series B
Preferred Stock of UAL Corporation ("UAL"), not owned by UAL. The terms and
conditions of the Exchange offer as currently contemplated are set forth in a
prospectus, dated November 20, 1996 (the "Prospectus"), a copy of which is
attached to this Agreement as Attachment A, proposed to be distributed to all
record holders of the Depositary Shares.
The Trust hereby appoints The Bank of New York to act as Depositary in
connection with the Exchange Offer. References hereinafter to "you" shall
refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Trust on or about
November 21, 1996. The Letter of Transmittal, a copy of which is attached to
this Agreement as Attachment B, accompanying the Prospectus is to be used by
the holders of the Depositary Shares to accept the Exchange Offer, and contains
instructions with respect to the delivery of certificates for Depositary Shares
tendered.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on December
20, 1996 (the "Initial Expiration Date"), or on such later date or time to
which the Trust may extend the Exchange Offer. Subject to the terms and
conditions set forth in the Prospectus, the Trust expressly reserves the right
to extend the Exchange Offer from time to time. If the Trust extends the
Exchange Offer, the Trust will give you oral (confirmed in writing) or written
notice before 9:00 a.m., New York City time, on the business day following the
scheduled Expiration Date. The later of the Initial Expiration Date or the
latest time and date to which the Exchange Offer may be so extended is
hereinafter referred to as "The Expiration Date."
In carrying out your duties as Depositary, you are to act in accordance with
the following instructions:
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1. You will perform such duties and only such duties as are specifically set
forth in the section of the Prospectus captioned "The Offer" or as specifically
set forth herein; provided, however, that in no way will your general duty to
act in good faith be discharged by the foregoing.
2. You will establish and maintain a book-entry account in respect of the
Depositary Shares at the Depository Trust Company ("DTC"), and the Philadelphia
Depository Trust Company ("PHDTC"), in connection with the Exchange Offer, in
accordance with Rule 17aD-14 under the Securities Exchange Act of 1934, as
amended. Any financial institution that is a participant in the DTC or PHDTC
system may make book-entry delivery of the Depositary Shares by causing DTC or
PHDTC to transfer such Depositary Shares into the account maintained by you,
pursuant to this paragraph, in accordance with DTC's or PHDTC's procedure for
such transfer, and you may effect a withdrawal of Depositary Shares through
such account by book-entry movement. However, although delivery of Depositary
Shares may be effected through book-entry transfer at DTC or PHDTC the Letter
of Transmittal (or facsimile thereof) with any required signature guarantees
and any other documents must, in any case, be received by you in order for
Depositary Shares to be properly tendered. The accounts shall be maintained
until all Depositary Shares tendered pursuant to the Exchange Offer shall have
been either accepted for payment or returned.
3. You are to examine each of the Letters of Transmittal and certificates for
Depositary Shares (or confirmation of book-entry transfer into your account at
DTC or PHDTC) and any other documents delivered or mailed to you by or for
holders of Depositary Shares to ascertain whether; (i) the Letters of
Transmittal and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein and (ii) the
Depositary Shares have otherwise been properly tendered. In each case where
the Letter of Transmittal or any other document has been improperly completed
or executed or any of the certificates for Depositary Shares are not in proper
form for transfer or some other irregularity in connection with the acceptance
of the Exchange Offer exists, you will endeavor to inform the presenters of the
need for fulfillment of all requirements and to take any other action as may be
necessary or advisable to cause such irregularity to be corrected.
4. With the approval of the Trust (such approval, if given orally, to be
confirmed in writing), or any other party designated by the Trust in writing,
you are authorized to waive any irregularities in connection with any tender of
Depositary Shares pursuant to the Exchange Offer.
5. Tenders of Depositary Shares may be made only as set forth in the Letter
of Transmittal and in the section of the
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Prospectus captioned "The Offer -- Procedures for Tendering," and Depositary
Shares shall be considered properly tendered to you only when tendered in
accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Depositary Shares which
the Trust shall approve as having been properly tendered shall be considered to
be properly tendered (such approval, if given orally, shall be confirmed in
writing).
6. You shall advise the Trust with respect to any Depositary Shares received
subsequent to the Expiration Date and accept its instructions with respect to
disposition of such Depositary Shares.
7. You shall accept tenders:
(a) in cases where the Depositary Shares are registered in two or more names
only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Depositary Shares
provided that customary transfer requirements, including any applicable
transfer taxes, are fulfilled.
You shall accept partial tenders of Depositary Shares where so indicated and
as permitted in the Letter of Transmittal and deliver certificates for
Depositary Shares to the transfer agent for split-up and return any untendered
Depositary Shares to the holder (or to such other person as may be designated
in the Letter of Transmittal) as promptly as practicable after expiration or
termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Trust will notify you (such notice if given orally, to be confirmed
in writing) of its acceptance, promptly after the Expiration Date, of all
Depositary Shares properly tendered and you, on behalf of the Trust, will
exchange such Depositary Shares for TOPrS and cause such Depositary Shares to
be transferred to the Trust. Delivery of TOPrS will be made on behalf of the
Trust by you at the rate of one TOPrS for each Depositary Share properly
tendered promptly after notice (such notice if given orally, to be confirmed in
writing) of acceptance of said Depositary Shares by the Trust; provided,
however, that in all cases, Depositary Shares tendered pursuant to the Exchange
Offer will be exchanged only after timely receipt by you of certificates for
such Depositary Shares (or confirmation of book-entry transfer into your
account at the DTC or PHDTC), a properly completed and
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duly executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees and any other required documents.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and
the Letter of Transmittal, Depositary Shares tendered pursuant to the Exchange
Offer may be withdrawn at any time prior to the Expiration Date.
10. The Trust shall not be required to exchange any Depositary Shares
tendered if any of the conditions set forth in the Prospectus are not met.
Notice of any decision by the Trust not to purchase or pay for any Depositary
Shares tendered shall be given (and confirmed in writing) by the Trust to you.
11. If, pursuant to the Exchange Offer, the Trust does not accept for
exchange all or part of the Depositary Shares tendered, you shall as soon as
practicable after the expiration or termination of the Exchange Offer return
those certificates for unaccepted Depositary Shares (or effect appropriate
book-entry transfer), together with any related required documents and the
Letters of Transmittal relating thereto that are in your possession, to the
persons who deposited them.
12. All certificates for reissued Depositary Shares, for unaccepted
Depositary Shares or for TOPrS shall be forwarded by (a) first-class mail,
return receipt requested, under a blanket surety bond protecting you and the
Trust from loss or liability arising out of the non-receipt or non-delivery of
such certificates or (b) by registered mail insured separately for the
replacement value of such certificates.
13. You are not authorized to offer to pay any concessions, commissions or
solicitation fees to any broker, dealer, bank or other persons or to engage or
utilize any person to solicit tenders.
14. As Depositary hereunder you:
(a) shall have no duties or obligations other than those specifically set
forth herein or as may be subsequently agreed to in writing between you and the
Trust;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any
of the certificates or the Depositary Shares represented thereby deposited with
you pursuant to the Exchange Offer, and will not be required to and will make
no representation as to the validity, value or genuineness of the Exchange
Offer;
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(c) shall not be obligated to take any legal action hereunder which might in
your judgment involve any expense or liability, unless you shall have been
furnished with reasonable indemnity;
(d) may reasonably rely on and shall be protected in acting in reliance upon
any certificate, instrument, opinion, notice, letter, telegram, or other
document or security delivered to you and reasonably believed by you to be
genuine and to have been signed by the proper party or parties;
(e) may reasonably act upon any tender, statement, request, comment,
agreement, or other instrument whatsoever not only as to its due execution and
validity and effectiveness of its provisions, but also as to the truth and
accuracy of any information contained therein, which you shall in good faith
believe to be genuine or to have been signed or represented by a proper person
or persons;
(f) may rely on and shall be protected in acting upon written or oral
instructions from the Trust;
(g) may consult with your counsel with respect to any questions relating to
your duties and responsibilities and the opinion of such counsel shall be full
and complete authorization and protection in respect to any action taken,
suffered or omitted by you hereunder in good faith and in accordance with the
opinion of such counsel; and
(h) shall not advise any person tendering Depositary Shares pursuant to the
Exchange Offer as to the wisdom of making such tender or as to the market value
or decline or appreciation in market value of any Depositary Shares.
15. You shall take such action as may from time to time be requested by the
Trust or it's counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Prospectus, Letter of Transmittal and
Notice of Guaranteed Delivery (as defined in the Prospectus) or such other
forms as may be approved from time to time by the Trust, to all persons
requesting such documents and to accept and comply with telephone requests for
information relating to the Exchange Offer, provided that such information
shall relate only to the procedures for accepting (or withdrawing from) the
Exchange Offer. The Trust will furnish you with copies of such documents at
your request. All other requests for information relating to the Exchange
Offer shall be directed to Xxxxxxxxx & Company, Inc., which has been retained
by the Trust as Information Agent, at the address set forth in the Prospectus.
16. You are authorized to cooperate with and to furnish information to any
organization (and its representatives) designated from time to time by the
Trust in any manner reasonably
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requested by it in connection with the Exchange Offer and any tenders
thereunder.
17. You shall, at the direction of the Trust, advise by facsimile
transmission or telephone, and promptly thereafter confirm in writing to the
Trust (at the address and telephone or other number set forth on Schedule I
hereto) and such other person or persons as the Trust may request, daily (or
more frequently if requested) up to and including the Expiration Date, (i) the
number of Depositary Shares which have been tendered pursuant to the Exchange
Offer and the items received by you pursuant to this Agreement, separately
reporting and giving cumulative totals as to items properly received, items
improperly received and items covered by Notice of Guaranteed Delivery. In
addition, you will also inform, and cooperate in making available to, the
aforementioned persons upon oral request made from time to time prior to the
Expiration Date of such other information as they may reasonably request. Such
cooperation shall include, without limitation, the granting by you to the Trust
and such other person or persons as the Trust may request, of access to those
persons on your staff who are responsible for receiving tenders, in order to
ensure that immediately prior to the Initial Expiration Date and each other
Expiration Date, if any, the Trust shall have received information in
sufficient detail to enable it to decide whether to extend the Exchange Offer.
You shall prepare a final list of all persons whose tenders were accepted the
number of shares tendered, the amount accepted and deliver said list to the
Trust and such other person or persons as the Trust may request.
18. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and time of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
preserve other records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Trust.
19. You hereby expressly waive any lien, encumbrance or right of set-off
whatsoever that you may have with respect to funds deposited with you, if any,
borrowed by the Trust, UAL, or any of their respective subsidiaries or
affiliates pursuant to any loan or credit agreement with you or for
compensation owed to you hereunder.
20. For services rendered as Depositary hereunder, you shall be entitled to
the compensation set forth on Attachment C to this Agreement.
21. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement,
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on the one hand, and the Prospectus and the Letter of Transmittal (as they may
be amended from time to time), on the other hand, shall be resolved in favor of
the latter two documents, except with respect of the duties, liabilities and
indemnification of you as Depositary, which shall be controlled by this
Agreement.
22. The Trust covenants and agrees to indemnify and hold you harmless in
your capacity as Depositary hereunder against any loss, liability, cost or
expense, including attorneys' fees (in each case incurred without negligence,
misconduct or bad faith on your part) arising out of or in connection with any
act, omission, delay or refusal made by you in reasonable reliance upon any
signature, endorsement, assignment, certificate, order, request, notice,
instruction or other instrument or document believed by you to be valid,
genuine and sufficient in accepting any tender or effecting any transfer of
Depositary Shares believed by you in good faith to be authorized, and in
delaying or refusing in good faith to accept any tenders or effect any transfer
of Depositary Shares. In no case shall the Trust be liable under this
indemnity with respect to any claim against you unless the Trust shall be
notified by you, by letter or cable or by telex confirmed by letter, of the
written assertion of a claim against you or of any other action commenced
against you, promptly after you shall have received any such written assertion
or notice of commencement of action in connection therewith. The Trust shall
be entitled to participate at its own expense in the defense of any such claim
or other action and, if the Trust so elects, the Trust shall assume the defense
of any suit brought to enforce any such claim. In the event that the Trust
shall assume the defense of any such suit, the Trust shall not be liable for
the fees and expenses of any additional counsel thereafter retained by you, so
long as the Trust shall retain counsel reasonably satisfactory to you to defend
such suit.
23. You shall arrange to comply with all requirements under the tax laws of
the United States, including those relating to missing Tax Identification
Numbers, and shall file any appropriate reports with the Internal Revenue
Service (e.g., 1099, 1099B, etc.). The Trust understands that you are required
to deduct 31% on payments to holders who have not supplied their correct
Taxpayer Identification Number or required certification. Such funds will be
turned over to the Internal Revenue Service in accordance with applicable
regulations.
24. You shall deliver or cause to be delivered in a timely manner to each
governmental authority to which any stock transfer taxes are payable in respect
of the transfer of Depositary Shares accepted in the Exchange Offer to the
Trust your check in the amount of all stock transfer taxes so payable, and the
Trust shall reimburse you for the amount of any and all stock transfer taxes
payable in respect of the transfer of Depositary Shares accepted in the
Exchange Offer to the Trust; provided, however, that you shall
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reimburse the Trust for amounts refunded to you in respect of your payment of
any such stock transfer taxes, at such time as such refund is received by you.
25. This Agreement and your appointment as depository hereunder shall be
construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within such state,
and shall inure to the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of each of the parties hereto. This
Agreement may not be modified orally.
26. This Agreement shall not be deemed or construed to be modified, amended,
rescinded, cancelled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
27. Unless otherwise provided herein, all notices requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to the Trust:
UAL Corporation Capital Trust I
0000 Xxxx Xxxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Secretary
If to the Depositary:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Administration
28. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration date. Notwithstanding the
foregoing, Paragraphs 20, 22 and 25 shall survive the termination of this
Agreement. Upon any termination of this agreement, you shall promptly deliver
to the Trust any certificates for Depositary Shares, funds or property then
held by you as Depositary under this Agreement.
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29. This Agreement shall be binding and effective as of the date hereof.
30. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original but which together shall constitute one
and the same agreement.
Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
UAL CORPORATION CAPITAL TRUST I
By: UAL Corporation
By:_____________________________
Name:
Title:
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Depositary
By:
______________________
Name:
Title:
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ATTACHMENT C
DEPOSITARY AGENT FEE SCHEDULE
UAL CORPORATION
NOVEMBER 21, 1996
1. Acceptance Fee-- $1,500.00
-- Review Exchange Documents
-- Assist Trust and counsel with preliminary
set-up of transaction
-- Conversion of shareholder file from prior
Trustee to The Bank of New York's database
2. Processing Letters of Transmittal -- Each $6.50
-- Review and examination of Letters of Transmittal and
accompanying securities
-- Data Entry/Data Processing
-- Generation of Daily Reports
-- Proof and control of presentations
-- Initiation of debit down to shareholder file
-- Calculation of Entitlements
-- Generation of check
- Telephone inquiries
3. Special Handling Items -- Each $5.00
-- Deficient Presentations
-- Legal Presentations
-- Transfer Items
-- Window Presentations
-- Guarantee Items
-- Lost stock items
4. Tax Reporting
-- Prepare and file Form 1099B with
surrendering shareholders - Each $0.50
-- Creation of tax tape for appropriate
government agencies $500.00
5. Minimum Fee $5,000.00
6. Certificate Issuance (for certificated holders) $1.00
7. Check issuance (for certificated holders) $1.00
8. Out-of-Pocket Expenses Billed on a
cost-to-us
basis
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All fees are subject to review based upon the duties and responsibilities of
the appointment.
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