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EXHIBIT 1.1
FORM OF DEALER MANAGER AGREEMENT
[ ], 1996
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
UAL Corporation Capital Trust I (the "Trust"), a statutory
business trust organized under the Business Trust Act (the "Delaware Act") of
the State of Delaware (Chapter 38, Title 12 of the Delaware Code, 12 Del. C.
Section 3801 et. seq.) proposes to issue its % Trust Originated Preferred
Securities(SM)("TOPrS(SM)") (the "Preferred Securities") in exchange for any and
all shares of the 6,266,781 depositary shares not owned by UAL (the "Target
Securities"), each representing one one-thousandth of a share of Series B
Preferred Stock (liquidation preference equivalent to $25 per depositary share)
of UAL Corporation (the "Company"). The Preferred Securities will be
guaranteed (the "Guarantee") by the Company to the extent described in the
Prospectus (as hereinafter defined). The exchange described above is herein
referred to as the "Exchange Offer" and any exchange of Preferred Securities
for Target Securities pursuant to the Exchange Offer is herein referred to as
an "Exchange". In connection with the Exchange Offer, the Company will deposit
in the Trust as trust assets its % Junior Subordinated Debentures due
, 2026 (the "Debentures") as set forth in the Prospectus.
Each of the Company and the Trust hereby confirms its
agreement with Xxxxxxx Xxxxx & Co. and Xxxxx Xxxxxx Inc. (the "Dealer
Managers") as follows:
___________________________
(SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks
of Xxxxxxx Xxxxx & Co., Inc.
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1. Registration Statement, Prospectus and Offering
Materials. The Company and the Trust have prepared and filed with the
Securities and Exchange Commission (the "Commission"), under the Securities Act
of 1933, as amended, and the rules and regulations of the Commission
promulgated thereunder (collectively, the "Securities Act"), a registration
statement on Form S-4 covering the registration of the Preferred Securities,
the Guarantee and the Debentures, including the related preliminary prospectus,
and will prepare and file, on or prior to the effective date of such
registration statement, amendments to such registration statement, including a
final prospectus. Each prospectus used before the time such registration
statement becomes effective is herein called a "preliminary prospectus". Such
registration statement, including the exhibits thereto and any documents
incorporated by reference therein, as amended at the time it becomes effective
or as thereafter amended or supplemented from time to time, is herein called
the "Registration Statement". The final prospectus included in the
Registration Statement (including any documents incorporated in the prospectus
by reference) is herein called the "Prospectus", except that if the final
prospectus furnished to the Dealer Managers for use in connection with the
Exchange Offer differs from the prospectus set forth in the Registration
Statement (whether or not such prospectus is required to be filed pursuant to
Rule 424 (b)), the term "Prospectus" shall refer to the final prospectus
furnished to the Dealer Managers for such use. The terms "supplement" and
"amendment" or "amend" as used herein with respect to the Prospectus shall
include all documents deemed to be incorporated by reference in the Prospectus
that are filed subsequent to the date of the Prospectus and prior to the
termination of the Exchange Offer by the Company and the Trust with the
Commission pursuant to the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder (collectively,
the "Exchange Act").
The Registration Statement, Prospectus and the related letters
from the Dealer Managers to securities brokers, dealers, commercial banks,
trust companies and other nominees, letters to beneficial owners of Target
Securities, letters of transmittal (the "Letters of Transmittal"), notices of
guaranteed delivery (the "Notices of Guaranteed Delivery") and any newspaper
announcements, press releases and other offering materials and information the
Company may use or prepare, approve or authorize for use in connection with the
Exchange Offer, as amended or supplemented from time to time, are herein
collectively referred to as the "Offering Materials".
2. Exchange Offer; Agreement to Act as Dealer Managers.
(a) The Company and the Trust intend to commence the Exchange Offer as soon as
practicable after the Registration Statement becomes effective under the
Securities Act by publicly announcing its commencement and by mailing, or
causing to be mailed on its behalf, copies of the Prospectus, the related
Letters of Transmittal and such of the other Offering Materials as is required
or as the Company and the Trust elect to each holder of Target Securities (the
date of the commencement of such distribution being herein called the
"Commencement Date").
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(b) The Company hereby retains the Dealer Managers to
advise the Company and the Trust with respect to the terms
and timing of the Exchange Offer and to assist them in the preparation of
the Offering Materials and retains and authorizes the Dealer Managers to act as
dealer managers and to assist the Company and the Trust with the solicitation
of Exchanges (each a "Solicitation" and collectively the "Solicitations"). On
the basis of the representations and warranties and agreements of the Company
and the Trust herein contained and subject to and in accordance with the terms
and conditions hereof and of the Offering Materials, the Dealer Managers agree
to advise the Company and the Trust with respect to the terms and timing of the
Exchange Offer, to assist them in the preparation of the Offering Materials, to
act as dealer managers in connection with the Exchange Offer and to assist the
Company and the Trust with the Solicitations. The Dealer Managers agree to use
their reasonable best efforts to solicit Exchanges.
(c) The Company shall furnish the Dealer Managers, or
cause the transfer agent or registrar for the Target Securities (respectively,
the "Transfer Agent" and "Registrar") to furnish the Dealer Managers, as soon
as practicable after the date hereof (to the extent not previously furnished),
with cards or lists in reasonable quantities or copies thereof showing the
names of persons who were the holders of record or, to the extent available to
the Company, the beneficial owners of the Target Securities as of a recent
date, together with their addresses, and the number of shares of Target
Securities held by them. Additionally, the Company shall use its reasonable
best efforts to update, or to cause the Transfer Agent or Registrar to update,
such information from time to time during the term of this Agreement as may be
reasonably requested by the Dealer Managers. Except as otherwise provided
herein, the Dealer Managers agree to use such information only in connection
with the Solicitations. The Dealer Managers shall act hereunder as independent
contractors and nothing herein contained shall make the Dealer Managers agents
of the Company or any of its subsidiaries or the Trust in connection with any
Solicitation. Nothing contained in this Agreement shall constitute the Dealer
Managers partners of or joint venturers with the Company or any of their
subsidiaries or the Trust.
(d) The Company and the Trust authorize the Dealer
Managers to use the Offering Materials in connection with the Solicitations and
for such period of time as any Offering Materials are required by law to be
delivered in connection therewith. The Dealer Managers shall not have any
obligation to cause any Offering Materials to be transmitted generally to the
holders of the Target Securities. The Dealer Managers agree not to give any
written information and not to make any representations to holders of the
Target Securities in connection with any Solicitation other than as contained
in the Offering Materials.
(e) The Company and the Trust authorize the Dealer
Managers to communicate with any information agent (the "Information Agent") or
exchange agent (the "Exchange Agent") appointed by the Company and/or the Trust
to act in such capacity in connection with the Exchange Offer with respect to
matters relating to the Exchange Offer.
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(f) The Company and the Trust agree that any reference to
the Dealer Managers in any Offering Materials or in any newspaper announcement
or press release or other public document or communication is subject to the
Dealer Managers' prior consent, which consent shall not be unreasonably
withheld.
3. Compensation. (a) The Company hereby agrees to pay
to the Dealer Managers for services rendered and to be rendered by them in
connection with the Exchange Offer a fee (the "Management Fee") equal to $0.125
per share of Target Securities validly submitted for exchange and not withdrawn
in connection with the Exchange Offer if fewer than 60% of the Target
Securities are validly tendered but not withdrawn and $0.150 per share of
Target Securities validly submitted for exchange and not withdrawn if 60% or
more shares of Target Securities are validly tendered and not withdrawn. The
Management Fee shall be paid only if the Exchange Offer is consummated, and
shall be paid within one week of the consummation of the Exchange Offer. The
Management Fee shall be divided 70% to Xxxxxxx Xxxxx and 30% to Xxxxx Xxxxxx
Inc. (as to each, its "Proportionate Share").
(b) The Company agrees to pay, or cause to be paid to,
each soliciting dealer (including any Dealer Managers acting as a soliciting
dealer) whose name has been inserted in the space provided in the Letter of
Transmittal for that purpose a fee (the "Soliciting Dealer Fee") equal to $0.50
($0.25 with respect to the solicitation of beneficial holders of 10,000 or more
shares) per share of Target Securities validly submitted for exchange and not
withdrawn in connection with the Exchange Offer; provided, however, that no
such fee shall be paid with respect to Target Securities tendered, directly or
indirectly, by soliciting dealers for their own account and such fee shall not
be remitted, in whole or in part, to the beneficial owner of such Target
Securities. The Soliciting Dealer Fee shall be paid only if the Exchange Offer
is consummated and shall be paid to the soliciting dealers within one week of
the consummation of the Exchange Offer.
4. Expenses, Reimbursement. (a) The Company agrees to
reimburse the Dealer Managers directly for all of their reasonable
out-of-pocket expenses incurred in connection with the Exchange Offer,
including, without limitation, the reasonable fees and expenses of the law firm
acting as legal counsel for the Dealer Managers; provided that the Company
shall not be obligated to reimburse out-of-pocket expenses for air fare
incurred traveling on air carriers other than United Airlines to the extent
that United Airlines serves the particular destination for which such air fare
is incurred.
(b) Notwithstanding the foregoing, in the event that fewer
than 45% of the Target Securities are validly tendered and not withdrawn, each
of the Dealer Managers shall reimburse the Company for its Proportionate Share
of the fees and expenses incurred by the Company in connection with the Exchange
Offer in an aggregate amount equal to the Management Fee and in the event that
at least 45% but less than 50% of the Target Securities are validly tendered and
not withdrawn, each of the Dealer Managers shall reimburse the Company for its
Proportionate Share of the fees and expenses incurred by the Company in
connection with the Exchange Offer in an aggregate amount equal to the
Management Fee and in the event that at least 45% but less than 50% of the
Target Securities are validly tendered and not withdrawn, each of the Dealer
Managers shall
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reimburse the Company for its Proportionate Share of the fees and expenses
incurred by the Company in the Exchange Offer in an aggregate amount equal to
(a) the Management Fee less (b) the product of (x) the number of shares of
Target Securities validly tendered and not withdrawn, times (y) $0.125, times
(z) a fraction, the numerator of which is the difference between the number of
shares of Target Securities validly tendered and not withdrawn and the number
of shares which constitutes 45% of the outstanding Target Securities and the
denominator of which is 5% of the outstanding shares of Target Securities.
5. Certain Covenants of the Trust and the Company. Each of the
Company and the Trust covenants jointly and severally with the Dealer Managers:
(a) To use reasonable efforts to cause the Registration
Statement, including any post-effective amendment thereto, to become effective
and will notify the Dealer Managers as soon as practicable and, if requested by
the Dealer Managers, will confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall have become
effective, or any supplement to the Prospectus or any amended Prospectus or any
amended or additional Offering Materials shall have been filed, (ii) of the
receipt of any comments from the Commission relating to the Exchange Offer,
(iii) of any request by the Commission to amend the Registration Statement or
amend or supplement the Prospectus or the other Offering Materials or for
additional information relating to the Exchange Offer and (iv) of (A) the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or (B) the issuance by the Commission of any order
preventing or suspending the use of any of the Offering Materials or (C) the
suspension of the qualification of the Preferred Securities for offering or
sale in connection with the Exchange Offer in any jurisdiction or (D) the
institution or threatening of any proceedings for any of such purposes or (E)
the occurrence of any event which could cause the Company or the Trust to
withdraw, rescind, terminate or modify the Exchange Offer or would permit the
Company or the Trust to exercise any right not to accept the Target Securities
tendered pursuant to the Exchange Offer. The Company and the Trust will make
every reasonable effort to prevent the issuance of any such stop order, the
issuance of any order preventing or suspending such use and the suspension of
any such qualification and, if any such order is issued or qualification
suspended, to obtain the lifting of such order or suspension at the earliest
practicable time.
(b) Prior to the termination of the Exchange Offer,
before amending or supplementing the Registration Statement or the Prospectus,
to furnish copies of drafts to, and consult with, the Dealer Managers and their
counsel within a reasonable time in advance of filing with the Commission of
any amendment or supplement to the Registration Statement, the Prospectus or
the other Offering Materials. Neither the Company nor the Trust shall file any
such amendment or supplement to which the Dealer Managers shall reasonably
object in writing; provided, however, that the foregoing shall not apply to any
of the Company's filings with the Commission required to be filed pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, copies of which such
filings the Company will cause
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to be delivered to the Dealer Managers promptly after being transmitted for
filing with the Commission.
(c) To furnish promptly to each of the Dealer Managers,
without charge, one signed copy of the Registration Statement, all amendments
thereto and any other filing with the Commission in connection with the
Exchange Offer, whether filed before or after the Registration Statement
becomes effective.
(d) To furnish promptly to the Dealer Managers, without
charge, from time to time until the effective date of the Registration
Statement, as many copies of each preliminary prospectus as the Dealer Managers
may reasonably request, and the Company and the Trust hereby consent to the use
of such copies for purposes permitted by the Securities Act and the Exchange
Act. The Company will furnish promptly to the Dealer Managers, without charge,
as soon as the Registration Statement shall have become effective and during
the period mentioned in the second sentence of paragraph (e) below such number
of copies of the Prospectus and the other Offering Materials (as supplemented
or amended) as the Dealer Managers may reasonably request and will cause all
amendments and supplements filed with the Commission to be distributed to
holders of Target Securities as may be required by the Securities Act and the
Exchange Act.
(e) To comply in all material respects with the
Securities Act, the Exchange Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), in connection with the Offering Materials,
the Exchange Offer and the transactions contemplated hereby and thereby, as
applicable. If at any time when the Prospectus is required by the Securities
Act or Exchange Act to be delivered in connection with any Solicitation or
Exchange any event shall occur or condition shall exist as a result of which it
is necessary, in the reasonable opinion of counsel for the Dealer Managers or
counsel for the Company and the Trust, to amend the Registration Statement or
amend or supplement the Prospectus or any other Offering Materials in order
that the Prospectus or such other Offering Materials will not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements in the Prospectus or such other Offering
Materials, in the light of the circumstances under which they were made, not
misleading or if, in the reasonable opinion of either such counsel, it shall be
necessary to amend the Registration Statement or amend or supplement the
Prospectus or any other Offering Materials to comply with the requirements of
the Securities Act or Exchange Act, the Company and the Trust will promptly
prepare, file with the Commission, subject to Section 5(b) of this Agreement,
and furnish, at its own expense, to the Dealer Managers and to the dealers
(whose names and address will be furnished to the Company by the Dealer
Managers) to which Preferred Securities may have been exchanged, such amendment
or supplement as may be necessary to correct such untrue statement or omission
or to make the Registration Statement or the Prospectus or such other Offering
Materials comply with such requirements.
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(f) To endeavor, in cooperation with the Dealer Managers,
to qualify the Preferred Securities for offering and sale in connection with
the Exchange Offer under the applicable securities or Blue Sky laws of such
jurisdictions as the Company and the Trust may elect and to maintain such
qualifications in effect for such time as may be required for the consummation
of the Exchange Offer; provided, however, that neither the Company nor the
Trust shall be obligated to file any general consent to service of process or
to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation
in respect of doing business in any jurisdiction in which it is not otherwise
so subject; provided further that the Dealer Managers shall not be obligated to
solicit tenders in jurisdictions where the Preferred Securities are not
qualified for offer and sale. The Company and the Trust will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Preferred Securities have been qualified as above provided.
(g) To make generally available to the holders of the
TOPrS and the Debentures as soon as practicable, but in any event not later
than 45 days after the end of the fiscal quarter of the Company during which
the first anniversary of the effective date of the Registration Statement
occurs (or 90 days in case the period covered corresponds to a fiscal year of
the Company) an earnings statement of the Company (in form complying with the
provisions of Rule 158 of the Securities Act) covering such twelve-month
period.
(h) To use its reasonable best efforts to effect the
listing of the Preferred Securities on the New York Stock Exchange ("NYSE"),
subject to official notice of issuance, as soon as practicable after the date
hereof.
(i) To timely file any report or other document required
to be filed by the Company or the Trust with the Commission pursuant to Section
13, 14 or 15 of the Exchange Act during the period of time referred to in the
second sentence of Section 5(e) hereof.
(j) Subject to Section 4(a) of this Agreement, to pay all
costs and expenses incurred in connection with the performance of its
obligations in connection with this Agreement and the Solicitations including,
without limitation, (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, the preliminary prospectuses, the Prospectus
and the other Offering Materials and any amendments or supplements to any of
the foregoing, and the cost of furnishing copies thereof to the Dealer
Managers, (ii) the preparation and distribution of this Agreement and any Blue
Sky surveys and the printing of certificates for the Preferred Securities,
(iii) the distribution of the Offering Materials to the holders of the Target
Securities, (iv) the fees and disbursements of counsel to the Company and the
Trust, counsel to the Dealer Managers and the Company's and the Trust's
accountants, (v) the qualification of the Preferred Securities under the
applicable securities laws in accordance with Section 5(f) of this Agreement
and any filing for review of the Exchange Offer with
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the NASD (including filing fees and fees and disbursements of counsel for the
Dealer Managers in connection with such filing with the NASD), (vi) the fees
and expenses of the Transfer Agent, the Registrar, the Trustees of the Trust
(the "Trustees"), the Indenture Trustee (as defined herein), the Information
Agent and the Exchange Agent and (vii) all other costs and expenses incident to
the Solicitations incurred by the Trust and the Company and its subsidiaries.
The Company agrees to pay all of the aforementioned costs and expenses whether
or not the Exchange Offer is consummated.
(k) To advise or cause the Exchange Agent to advise the
Dealer Managers at 5:00 P.M., New York City time, or as promptly as practicable
thereafter, daily (or more frequently if requested), by telephone or facsimile
transmission, as of 4:00 P.M. on such day with respect to Target Securities
tendered as follows:
(i) the number of shares of Target Securities
validly tendered represented by certificates physically held by the Exchange
Agent (or for which the Exchange Agent has received confirmation of receipt of
book-entry transfer of such Target Securities into the Exchange Agent's account
at a Depository Institution (as defined in the Prospectus) pursuant to the
procedures set forth in the Exchange Offer) on such day;
(ii) the number of shares of Target Securities
represented by Notices of Guaranteed Delivery on such day;
(iii) the number of shares of Target Securities
properly withdrawn on such day;
(iv) the cumulative number of shares of Target
Securities in categories (i) through (iii) above.
On the day following such oral communication, the Company
shall furnish or cause the Exchange Agent to furnish to the Dealer Managers a
written report confirming the above information which has been communicated
orally. The Company shall furnish or cause the Exchange Agent to furnish to
the Dealer Managers such reasonable information on the tendering holders of
Targeted Securities as may be requested from time to time.
(l) To give the Dealer Managers notice of any change of
the expiration time of the Exchange Offer (the "Expiration Time").
6. Representations and Warranties of the Company and the
Trust. Each of the Company and the Trust jointly and severally represent and
warrant to and agrees with each of the Dealer Managers that:
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(a) Each preliminary prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 of the Securities Act, will comply when so filed,
in all material respects, as to form with the Securities Act and the Exchange
Act; the Registration Statement at the time it becomes effective and the
Prospectus and any other Offering Materials, on the Commencement Date and on
the date on which the Company commences delivery of the Preferred Securities
for exchange of the Target Securities pursuant to the Exchange Offer (such
date, the "Exchange Date"), will comply, in all material respects, as to form
with the Securities Act and the Exchange Act; each part of the Registration
Statement when such part becomes effective will not contain, and each such
part, as amended, if applicable, will not contain, any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and as of the
Commencement Date and the Exchange Date, none of the Prospectus or the other
Offering Materials or any amendments or supplements to such Offering Materials
will contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except that
the representations and warranties set forth in this Section 6 (a) do not apply
(A) to statements or omissions made based upon and in conformity with
information supplied in writing by either of the Dealer Managers through
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated expressly for use in the
Registration Statement, Prospectus, any other Offering Materials or any
amendments or supplements to any of the foregoing or (B) to that part of the
Registration Statement that constitutes the Statements of Eligibility and
Qualification on Form T-1 (the "Forms T-1") under the Trust Indenture Act of
the trustee (the "Indenture Trustee") under the Indenture (as defined herein),
as institutional trustee under the Declaration (as defined herein) and as
trustee under the Guarantee.
(b) The Company has the corporate power and authority to
execute, deliver and perform its obligations under this Agreement, the
Declaration, the Indenture and the Guarantee; and this Agreement has been duly
authorized, executed and delivered by the Company.
The Trust has the business trust power and authority to
execute, deliver and perform its obligations under this Agreement; and this
Agreement has been duly authorized, executed and delivered by the Trust.
The Preferred Securities to be issued pursuant to the Exchange
Offer will be duly authorized by the Trust's Amended and Restated Declaration
of Trust (the "Declaration") and, when issued in exchange for Target Securities
pursuant to the Exchange Offer, will be validly issued and (subject to the
terms of the Declaration) fully paid and non-assessable undivided beneficial
interests in the assets of the Trust, not subject to any preemptive or similar
rights, and will conform in all material respects to all statements relating
thereto
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contained in the Prospectus. Holders of the Preferred Securities will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit.
The common securities to be issued by the Trust to the Company
as described in the Registration Statement (the "Common Securities") will be
duly authorized by the Declaration and, when issued to the Company for cash as
described in the Registration Statement, will be validly issued and (subject to
the terms of the Declaration) fully paid and non-assessable undivided
beneficial interests in the assets of the Trust, not subject to any preemptive
or similar rights, and will conform in all material respects to all statements
relating thereto contained in the Prospectus.
(c) The Declaration and the Guarantee have been duly
authorized by the Company and, as of the Exchange Date, will have been duly
executed and delivered by the Company. Assuming due authorization, execution
and delivery of the Declaration by the Trustees, the Declaration will, as of
the Exchange Date, be a valid and binding obligation of the Company and the
Trustees, enforceable against the Company and the Trustees in accordance with
its terms, except as the same may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws relating to or
affecting the enforcement of creditors' rights generally, by general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law), or considerations of public policy or the
effect of applicable law relating to fiduciary duties. As of the Exchange
Date, the Guarantee will be a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, reorganization, receivership,
moratorium or other similar laws relating to or affecting the enforcement of
creditors' rights generally and by general equitable principles, regardless of
whether such enforceability is considered in a proceeding in equity or at law.
(d) The Indenture between the Company and the Indenture
Trustee (including any related supplemental indenture) governing the Debentures
to be deposited in the Trust ("Indenture") will be duly qualified under the
Trust Indenture Act and, assuming due authorization, execution and delivery of
the Indenture by the Indenture Trustee and upon execution and delivery by the
Company, will be enforceable against the Company in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or affecting the
enforcement of creditors' rights generally and by general equitable principles,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(e) The Debentures to be deposited in the Trust as trust
assets in connection with the Exchange Offer have been duly authorized by the
Company, and, assuming due authorization, execution and delivery of the
Indenture by the Indenture Trustee, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to the Trust
pursuant to the terms of the Exchange Offer will be entitled to the
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benefits of the Indenture and will be valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, except
as the same may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or affecting the
enforcement of creditors' rights generally and by general equitable principles,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware and has corporate power and authority and has all licenses, permits,
orders and other governmental and regulatory approvals, to own or lease its
properties and conduct its business in the jurisdictions in which such business
is transacted as described in the Prospectus, with only such exceptions as are
not material to the business of the Company and its subsidiaries considered as
a whole.
(g) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act, is and
will be treated as a "grantor trust" for federal income tax purposes under
existing law, has the business trust power and authority to conduct its
business as presently conducted and as described in the Prospectus, and is not
required to be authorized to do business in any other jurisdiction.
(h) United Airlines, Inc. ("United") has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of the State of Delaware, and all of the issued shares of capital
stock of United have been duly and validly authorized and issued, are fully
paid and non-assessable, and the shares of United owned by the Company are
owned by the Company, directly or indirectly, free and clear of any pledge,
lien, security interest, charge, claim, equity or encumbrance of any kind, with
only such exceptions as are not material to the business of the Company and its
subsidiaries considered as a whole.
(i) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid and
non-assessable and conform in all material respects to the respective
descriptions thereof contained in the Prospectus.
(j) The execution and delivery by the Company and the
Trust of, and the performance by the Company and the Trust of their obligations
under, this Agreement, the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Declaration, the
Guarantee and the Indenture, the issuance and delivery by the Trust of the
Common Securities and Preferred Securities and the consummation of the Exchange
Offer and the fulfillment of the terms herein contemplated will not conflict
with or result in a breach of any of the terms or provisions of, or constitute
a default under (in each case material to the Company and its subsidiaries
(including the Trust)
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considered as a whole or as to the Trust separately), any indenture, mortgage,
deed of trust, loan agreement, guarantee, lease, financing agreement or other
similar agreement or instrument to which the Company or any of its subsidiaries
(including the Trust) is a party or by which the Company or any of its
subsidiaries (including the Trust) is bound or to which any of the property or
assets of the Company or any of its subsidiaries (including the Trust) is
subject, nor will such actions result in any violation of the provisions of the
certificate of incorporation or by-laws of the Company or the Declaration of
the Trust, nor will such actions result in any violation (in each case material
to the Company and its subsidiaries (including the Trust) considered as a whole
or as to the Trust separately) of any statute or any order, rule or regulation
of any court or regulatory authority or other governmental body having
jurisdiction over the Trust or the Company or any of its subsidiaries or any of
their properties; and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for, and the
absence of which would materially affect, the performance by the Company and
the Trust of their obligations under this Agreement, the issuance and delivery
of the Preferred Securities and the consummation of the Exchange Offer, except
such approvals as will be obtained under the Securities Act, the Exchange Act
or the Trust Indenture Act and as may be required by the securities or Blue Sky
laws of the various states or the securities laws of non-U.S. jurisdictions in
connection with the Exchange Offer.
(k) Except as disclosed in the Prospectus, there are no
legal or governmental proceedings pending to which the Trust or the Company or
any of its subsidiaries is a party or of which any of the properties of the
Trust of the Company or any of its subsidiaries is the subject that is required
to be disclosed in the Prospectus or that can reasonably be expected to have a
material adverse effect upon the general affairs, financial position, net worth
or results of operations of the Trust or the Company and its subsidiaries
considered as a whole; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(l) Neither the Trust nor the Company is or, after giving
effect to the consummation of the Exchange Offer, will be, and neither the
Trust nor the Company is directly or indirectly controlled by, or acting on
behalf of any person which is, an investment company within the meaning of the
Investment Company Act of 1940, as amended.
(m) Xxxxxx Xxxxxxxx L.L.P., who have certified certain
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and the Prospectus, as
amended or supplemented, are, to the best knowledge of the Company, independent
certified public accountants as required by the Securities Act.
7. Indemnification and Contribution. (a) Each of the
Company and the Trust jointly and severally agrees: (A) to indemnify and hold
the Dealer Managers
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harmless against any loss, damage, expense, liability or claim (i) which (1)
with respect to the Registration Statement, is caused by any untrue statement
or alleged untrue statement of a material fact contained therein or which is
caused by the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or (2) with respect to the Offering Materials or in any amendment
or supplement thereto, is caused by any untrue statement or alleged untrue
statement of a material fact contained in such Offering Materials or which is
caused by the omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except, in any such
case, as to any of the Dealer Managers insofar as such loss, damage, expense,
liability or claim is caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to such
Dealer Manager furnished to the Company or the Trust in writing through Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated expressly for use in the
Registration Statement or in such Offering Materials or (ii) which arises out
of or is based upon a withdrawal, rescission or modification of or a failure to
make or consummate the Exchange Offer; and (B) to indemnify and hold each of
the Dealer Managers harmless against any other loss, damage, expense, liability
or claim which otherwise arises out of or is related to this Agreement or the
Exchange Offer or the services provided by the Dealer Managers in connection
with this Agreement or the Exchange Offer, except to the extent any such loss,
damage, expense, liability or claim referred to in this clause (B) is found by
a final judgment of a court of competent jurisdiction to have resulted from
such Dealer Manager's gross negligence, bad faith or willful misconduct. The
Company and the Trust each jointly and severally agree to indemnify and hold
each of the Dealer Managers harmless against and reimburse each of the Dealer
Managers for any and all reasonable expenses (including reasonable legal fees
and expenses) as such expenses are incurred by it in connection with
investigating, preparing for or defending against any such loss, damage,
expense, liability or claim, whether or not resulting in any liability, whether
or not such person is a named party in connection therewith and whether or not
such loss, damage, expense, liability or claim results from action initiated or
brought by or on behalf of the Company or any of its subsidiaries (including
the Trust), and any amount paid in settlement of any litigation, commenced or
threatened, or of any claim whatsoever as set forth herein if such settlement
is effected with the prior written consent of the Company; provided, however,
with respect to clause (B) above, that neither the Company nor the Trust shall
be liable for any of the foregoing expenses and any amounts previously paid
shall be promptly repaid to the extent that any loss, damage, liability or
claim is found by a final judgment of a court of competent jurisdiction to have
resulted from such Dealer Manager's gross negligence, bad faith or willful
misconduct. In the event that you become involved in any capacity in any
action, proceeding or investigation brought by or against any person, including
stockholders of the Company, in connection with any matter referred to in this
Agreement or arising out of the Exchange Offer for which you would be entitled
to indemnification pursuant to the preceding sentence, the Company and the
Trust also agree to indemnify and hold you harmless against and to reimburse
you for any amount paid in settlement of any litigation commenced or
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threatened or of any claim whatsoever as set forth herein if such settlement is
effected with the written consent of the Company and the Trust, which shall not
be unreasonably withheld. The Company and Trust also agree that none of the
Dealer Managers shall have any liability (whether direct or indirect, in tort,
contract or otherwise) to the Company or any of its subsidiaries (including the
Trust) or its or their security holders or creditors related to or arising out
of this Agreement or the Exchange Offer or the services provided by such Dealer
Manager in connection with this Agreement or the Exchange Offer, except (i) for
failure to perform its obligations under this Agreement, (ii) to the extent
such liability is found by a final judgment of a court of competent
jurisdiction to have resulted from such Dealer Manager's gross negligence, bad
faith or willful misconduct or (iii) as expressly provided in the next
succeeding paragraph.
Each of the Dealer Managers agrees, severally and not jointly,
to indemnify and hold harmless the Company and the Trust to the same extent as
the foregoing indemnity from the Company and the Trust to the Dealer Managers
contained in Section 7(a)(A)(i) above, but only with reference to information
relating to the Dealer Managers furnished to the Company in writing through
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporate expressly for use in the
Registration Statement or the Offering Materials.
(b) Promptly after receipt by a person indemnified under
this Section 7 of notice of any suit, action, proceeding or investigation with
respect to which an indemnified party may be entitled to indemnification
hereunder, such indemnified person shall notify the person against whom such
indemnity may be sought in writing of the commencement or the written assertion
thereof; but the omission so to notify such indemnifying person shall not
relieve such indemnifying person from any liability which it may have to such
indemnified person unless the indemnifying person has been materially
prejudiced by such omission. Following such notification, such indemnifying
person may elect in writing to assume the defense of such suit, action,
proceeding or investigation and, upon such election, such indemnifying person
shall not be liable for any legal costs subsequently incurred by such
indemnified person (other than reasonable costs of investigation and providing
evidence) in connection therewith, unless (i) such indemnifying person has
failed to provide counsel reasonably satisfactory to such indemnified person in
a timely manner, (ii) counsel which has been provided by such indemnifying
person reasonably determines that its representation of such indemnified person
would present it with a conflict of interest or (iii) such indemnified person
reasonably determines that there may be legal defenses available to it which
are different from or in addition to those available to such indemnifying
person. In the event of a determination pursuant to clause (i), (ii) or (iii)
above, such indemnified person shall be entitled to retain separate counsel of
their choice and the fees and expenses of such separate counsel shall be borne
by such indemnifying person. Such indemnifying person shall not in any event
be liable for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for all the Dealer Managers in any one
action or group of related actions, except as provided in the immediately
preceding sentence. Whether or not such indemnifying person shall have
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assumed the defense of any suit, action, proceeding or investigation, the
Company, the Trust, and the Dealer Managers agree to cooperate in the defense
thereof and shall furnish such records, information and testimony, and attend
such conferences, discovery proceedings, hearings, trials and appeals, as may
be reasonably requested in connection therewith.
(c) If the indemnification provided for in this Section 7
is unavailable to or insufficient to hold harmless an indemnified person to the
extent provided under subsection (a) above in respect of any losses, damages,
expenses, liabilities or claims referred to therein, then the indemnifying
person shall contribute to the amount paid or payable by such indemnified
person as a result of such losses, damages, expenses, liabilities or claims (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and its subsidiaries (including the Trust) on the one hand and
such Dealer Manager on the other from the Exchange Offer or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company and its
subsidiaries (including the Trust) on the one hand and such Dealer Manager on
the other in connection with any statements or omissions or any other matters
which resulted in such losses, damages, expenses, liabilities or claims, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and its subsidiaries (including the Trust) on the one
hand and such Dealer Manager on the other shall be deemed to be in the same
proportion as the maximum aggregate liquidation preference of the Preferred
Securities issuable pursuant to the Exchange Offer bears to the maximum amount
of fees payable to such Dealer Manager (less any expenses payable by such
Dealer Manager to the Company) pursuant to Sections 3 and 4 hereof. The
relative fault of the Company and its subsidiaries (including the Trust) on the
one hand and such Dealer Manager on the other (i) in the case of any untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact, shall be determined by reference to, among other
things, whether such statement or omission relates to information supplied by
the Company or any of its subsidiaries (including the Trust) or their
affiliates or such Dealer Manager, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission and (ii) in the case of any other action or omission, shall be
determined by reference to, among other things, whether such action or omission
was taken or omitted to be taken by the Company or any of its subsidiaries
(including the Trust) or their affiliates or by the Dealer Manager, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action or omission. The Company and the Dealer
Managers agree that it would not be just and equitable if contribution pursuant
to this subsection (c) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to in this subsection (c). Notwithstanding the
provisions of this Section 7(c), no Dealer Manager shall be required to
contribute any amount in excess of the fee paid to such Dealer Manager as
provided in Section 3 hereof (less any expenses payable by such Dealer Manager
to the Company as provided in Section
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4 hereof). No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act of 1933, as amended) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
8. Conditions to Dealer Managers' Obligations. The
obligations of the Dealer Managers hereunder are subject as of the Commencement
Date and as of the Exchange Date to the accuracy of the representations and
warranties of the Company and the Trust contained herein or in certificates of
any officer of the Company or Trustee of the Trust delivered pursuant to the
provisions hereof, to the performance, in all material respects, by the Company
and the Trust of their obligations hereunder to be performed, and to the
following additional conditions:
(a) On the Commencement Date and the Exchange Date, the
Registration Statement shall have become effective under the Securities Act; no
stop order suspending the effectiveness of the Registration Statement shall be
in effect, and no proceedings for such purpose shall be pending before or, to
the Company's or the Trust's knowledge, threatened by the Commission.
(b) On the Commencement Date and the Exchange Date, since
the respective dates as of which information is given in the Prospectus as
amended or supplemented, there shall not have occurred any material adverse
change, or any development involving a prospective material adverse change, in
or affecting particularly the business or assets of the Company and its
subsidiaries considered as a whole, or any material adverse change in the
financial position or results of operations of the Company and its subsidiaries
considered as a whole, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented.
(c) The Dealer Managers shall have received on the
Commencement Date and the Exchange Date a certificate, dated such date and
signed by an executive officer of the Company, to the effect set forth in
clause (b) above and to the effect that the representations and warranties of
the Company contained in this Agreement are true and correct in all material
respects as of such date and that the Company has complied in all material
respects with all of the agreements and satisfied in all material respects all
of the conditions on its part to be performed or satisfied on or before such
date. The officer signing and delivering such certificate may rely upon the
best of such officer's knowledge as to proceedings threatened.
(d) On the Commencement Date and the Exchange Date, there
shall not have been since the respective dates as of which information is given
in the Registration Statement, any material adverse change, or any development
involving a prospective material adverse change, in the financial condition or
results of operations of the Trust.
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(e) The Dealer Managers shall have received on the
Commencement Date and the Exchange Date a certificate, dated such date and
signed by a trustee of the Trust, to the effect set forth in clause (d) above
and to the effect that the representations and warranties of the Trust
contained in this Agreement are true and correct in all material respects as of
such date and that the Trust has complied in all material respects with all of
the agreements and satisfied in all material respects all of the conditions on
its part to be performed or satisfied on or before such date. The trustee
signing and delivering such certificate may rely upon knowledge as to
proceedings threatened.
(f) On the Exchange Date and, except with respect to
paragraph (iv) of this Section 8(f), on the Commencement Date, the Dealer
Managers shall receive a signed opinion of Xxxxxxxx, Xxxxxx & Finger, Delaware
counsel for the Company, dated as of such date, to the effect that:
(i) the Trust has been duly organized and is
validly existing in good standing as a business trust under the Delaware Act
and has the business trust power and authority to conduct its business as
described in the Prospectus;
(ii) assuming due authorization, execution and
delivery of the Declaration by the Company and the Trustees, the Declaration is
a legal, valid and binding agreement of the Company and the Trustees,
enforceable against the Company and the Trustees in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization, receivership,
fraudulent conveyance, moratorium and other similar laws affecting the rights
and remedies of creditors generally as from time to time in effect, general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law), or considerations of public policy or the
effect of applicable law relating to fiduciary duties;
(iii) under the Declaration and the Delaware Act,
the execution and delivery of this Agreement by the Trust, and the performance
by the Trust of its obligations hereunder and in the Exchange Offer, have been
duly authorized by all requisite business trust action on the part of the
Trust;
(iv) the Preferred Securities have been duly
authorized by the Declaration and upon issuance will be duly and validly issued
and, subject to the terms of the Declaration, fully paid and non-assessable
beneficial interests in the assets of the Trust. The holders of Preferred
Securities will be, subject to the terms of the Declaration, entitled to the
same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware;
(v) under the Declaration and the Delaware Act,
the issuance of the Preferred Securities is not subject to preemptive rights;
and
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(vi) the statements made in the Prospectus under
the caption "Description of the Preferred Securities" insofar as such
statements constitute summaries of the legal matters or documents referred to
therein, are accurate in all material respects.
(g) On the Exchange Date and, except with respect to
paragraphs (vi), (vii) and (viii) of this Section 8(g), on the Commencement
Date, the Dealer Managers shall have received a signed opinion of Xxxxxxxxx X.
Xxxxx, Vice President - Law, Deputy General Counsel & Corporate Secretary of
the Company, or if the Company desires, other counsel satisfactory to the
Dealer Managers in their reasonable judgment, dated as of such date, to the
effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power under the laws of such State to own its
properties and conduct its business as described in the Prospectus as amended
or supplemented;
(ii) the Company is duly qualified to do business
and is in good standing in the jurisdictions in which such business is
transacted, with only such exceptions as will not have a material adverse
effect upon the general affairs, financial position, net worth or results of
operations of the Company and its subsidiaries considered as a whole;
(iii) United has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, and all of the issued shares of capital stock of United have been
duly and validly authorized and issued, are fully paid and non-assessable, and
the shares of United owned by the Company, are owned by the Company, directly
or indirectly, free and clear of any pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind, with only such exceptions as are not
material to the business of the Company and its subsidiaries considered as a
whole;
(iv) the Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of capital stock of
the Company have been duly authorized and issued and are fully paid and
non-assessable;
(v) this Agreement and the Declaration have been
duly authorized, executed and delivered by the Company;
(vi) the Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid and binding
agreement of the Company enforceable in accordance with its terms, except as
the same may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or affecting the
enforcement of creditors' rights generally and by general equitable principles,
regardless of whether such enforceability is considered in a proceeding in
equity or at law;
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(vii) the Debentures have been duly authorized,
executed and delivered by the Company and, when authenticated in accordance
with the provisions of the Indenture and delivered to the Trust in exchange for
the Preferred Securities and money pursuant to the terms of the Exchange Offer,
will be entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company enforceable in accordance with their terms, except
as the same may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or affecting the
enforcement of creditors' rights generally and by general equitable principles,
regardless of whether such enforceability is considered in a proceeding in
equity or at law;
(viii) the Guarantee has been duly authorized and
executed by the Company, and constitutes a valid and binding agreement of the
Company enforceable in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other similar laws relating to or affecting the enforcement of creditors'
rights generally and by general equitable principles, regardless of whether
such enforceability is considered in a proceeding in equity or at law;
(ix) the execution and delivery by the Company of,
and the performance by the Company of its obligations under, this Agreement,
the Declaration, the Indenture, the Debentures and the Guarantee and the
consummation of the Exchange Offer and the fulfillment of the terms herein
contemplated (including the issuance of the Preferred Securities by the Trust)
will not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under (in each case material to the Trust or to the
Company and its subsidiaries (including the Trust) considered as a whole), any
indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing
agreement or other similar agreement or instrument known to such counsel under
which the Company or any of its subsidiaries (including the Trust) is bound or
to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such actions result in any violation of the
provisions of the certificate of incorporation or by-laws of the Company or the
Declaration, nor will such actions result in any violation (in each case
material to the Trust or to the Company and its subsidiaries (including the
Trust) considered as a whole) of any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body having
jurisdiction over the Trust or the Company or any of its subsidiaries or any of
their properties (other than the securities or Blue Sky laws of the various
states as to which such counsel expresses no opinion);
(x) such counsel does not know of any legal or
governmental proceeding pending to which the Trust, the Company or United is a
party or of which any property of the Trust, the Company or any of such
subsidiaries is the subject required to be disclosed in the Prospectus that are
not disclosed as required, and no such proceedings are known by such counsel to
be threatened or contemplated by governmental authorities or threatened by
others;
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(xi) such counsel does not know of any contract or
other document of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into the
Prospectus or required to be described in the Registration Statement or the
Prospectus which is not filed or incorporated by reference or described as
required;
(xii) the documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made by the Company
or the Trust prior to the Exchange Date (other than the financial statements
and related schedules and other financial data contained or incorporated by
reference therein or omitted therefrom, as to which such counsel need not
express any opinion), when they were filed with the Commission, complied as to
form in all material respects with the requirements of the Exchange Act.
In rendering such opinion, such counsel may indicate that she
is a member of the bar of the State of Illinois and that she expresses no
opinion as to the laws of any jurisdiction other than the federal laws of the
United States, the laws of the State of Illinois and the General Corporation
Law of the State of Delaware. In addition, such counsel shall state that such
counsel or lawyers under her supervision have participated in the preparation
of the Registration Statement, the Prospectus and the documents incorporated by
reference therein and no facts have come to such counsel's attention that leads
her to believe that the Registration Statement (including the documents
incorporated by reference therein pursuant to Item 11 of Form S-4) at the time
such Registration Statement became effective, or if an amendment to the
Registration Statement or an Annual Report on Form 10-K has been filed with the
Commission subsequent to the effectiveness of the Registration Statement, then
at the time such amendment became effective or at the time of the most recent
such filing, contained an untrue statement of a material fact omitted to state
a material fact required to be stated therein or necessary to make the
statements contained therein not misleading, or that the Prospectus as of its
date and the date of such opinion (including the documents incorporated by
reference therein pursuant to Item 11 of Form S-4) or any amendment or
supplement thereto, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, except that such counsel need
express no belief with respect to the financial statements and schedules and
other financial data included or incorporated by reference in the Registration
Statement, or the Prospectus or any amendment thereto or the Statement of
Eligibility on Form T-1 of the Trustee.
(h) On the Exchange Date and, except with respect to
paragraphs (ii), (iii) and (iv) of this Section 8(h), on the Commencement Date,
the Dealer Managers shall have received a signed opinion of Xxxxx, Xxxxx &
Xxxxx, or if the Company desires, other counsel satisfactory to the Dealer
Managers in their reasonable judgement, dated as of such date, to the effect
that:
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(i) this Agreement and the Declaration have been
duly authorized, executed and delivered by the Company;
(ii) the Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid and binding
agreement of the Company enforceable in accordance with its terms, except as
the same may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or affecting the
enforcement of creditors' rights generally and by general equitable principles,
regardless of whether such enforceability is considered in a proceeding in
equity or at law;
(iii) the Debentures have been duly authorized,
executed and delivered by the Company and, when authenticated in accordance
with the provisions of the Indenture and delivered to the Trust in exchange for
the Preferred Securities and money pursuant to the terms of the Exchange Offer,
will be entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company enforceable in accordance with their terms, except
as the same may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or affecting the
enforcement of creditors' rights generally and by general equitable principles,
regardless of whether such enforceability is considered in a proceeding in
equity or at law;
(iv) the Guarantee has been duly authorized and
executed by the Company, and constitutes a valid and binding agreement of the
Company enforceable in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other similar laws relating to or affecting the enforcement of creditors'
rights generally and by general equitable principles, regardless of whether
such enforceability is considered in a proceeding in equity or at law;
(v) the Indenture has been duly qualified under the
Trust Indenture Act;
(vi) the statements made in the Prospectus under the
captions "Description of the Preferred Securities Guarantee," "Description of
the Junior Subordinated Debentures" and "Description of the Series B Preferred
Securities Depositary Shares," insofar as such statements constitute summaries
of the legal matters or documents referred to therein are accurate in all
material respects;
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(vii) neither the Company nor the Trust is, or,
after giving effect to the consummation the Exchange Offer, will be, and
neither the Company nor the Trust is directly or indirectly controlled by, or
acting on behalf of any person which is, an investment company within the
meaning of the Investment Company Act of 1940, as amended.
(viii) the documents incorporated by reference in
the Prospectus or any further amendment or supplement thereto made by the
Company or the Trust prior to the Exchange Date (other than the financial
statements and related schedules and other financial data contained or
incorporated by reference therein or omitted therefrom, as to which such
counsel need not express any opinion), when they were filed with the
Commission, complied as to form in all material respects with the requirements
of the Exchange Act;
(ix) the Registration Statement has become effective
under the Securities Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted or threatened by
the Commission; the Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company or the Trust prior to
the Exchange Date (other than the financial statements and related schedules
and other financial data contained in the Registration Statement or the
Prospectus or any further amendments or supplements thereto, or omitted
therefrom, and other than that part of the Registration Statement that
constitutes the Forms T-1, as to which such counsel need not express any
opinion) comply as to form in all material respects with the requirements of
the Securities Act.
In rendering such opinion, Xxxxx, Xxxxx & Xxxxx may state that
they express no opinion as to the laws of any jurisdiction other than the
federal laws of the United States, the laws of the States of New York and
Illinois and the General Corporation Law of the State of Delaware. In
addition, such counsel shall state that such counsel has participated in the
preparation of the Registration Statement and the Prospectus and no facts have
come to such counsel's attention that leads such counsel to believe that the
Registration Statement (including the documents incorporated by reference
therein pursuant to Item 11 of Form S-4) at the time it became effective, or if
an amendment to the Registration Statement or an Annual Report on Form 10-K has
been filed with the Commission subsequent to the effectiveness of the
Registration Statement, then at the time such amendment became effective or at
the time of the most recent such filing, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements contained therein not misleading, or that
the Prospectus as of its date and the date of such opinion (including the
documents incorporated by reference therein pursuant to Item 11 of Form S-4)
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
that such counsel need express no belief with respect to the financial
statements and schedules and other financial data included or incorporated by
reference in the Registration Statement, or the Prospectus or any amendment
thereto, or the Statement of Eligibility on Form T-1 of the Trustee.
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(i) On the Commencement Date and on the Exchange Date,
the Dealer Managers shall have received a signed opinion of Xxxxx, Xxxxx &
Xxxxx, tax counsel to the Trust, confirming their opinion under the caption
"Taxation" in the Prospectus.
(j) The Dealer Managers shall have received the favorable
opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx counsel for the Dealer
Managers, dated as of the Commencement Date and the Exchange Date, covering the
incorporation and legal existence of the Company, the issuance and delivery of
the Preferred Securities (on the Exchange Date only), this Agreement, the
Indenture, the Debentures, the Guarantee, the Registration Statement, the
Prospectus and such other related matters as the Dealer Managers may require.
In giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York and Delaware,
and the federal law of the United States, upon the opinions of counsel
satisfactory to the Dealer Managers. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company, trustees of the
Trust and certificates of public officials.
(k) On the Commencement Date, the Dealer Managers shall
have received from the Company's independent public accountants, in form and
substance reasonably satisfactory to the Dealer Managers and dated as of such
date, containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Prospectus.
(l) At the Exchange Date, the Dealer Managers shall have
received from the Company's independent public accountants, in form and
substance reasonably satisfactory to the Dealer Managers and dated as of such
dates, to the effect that such accountants reaffirm the statements made in the
letter furnished pursuant to Section 8(k).
(m) At the Exchange Date, the Preferred Securities shall
have been duly listed, subject to official notice of issuance, on the NYSE.
(n) By the Exchange Date, the Company shall have entered
into appropriate agreements with the Information Agent and the Exchange Agent
for purposes of the Exchange Offer.
9. Termination.
(a) This Agreement shall terminate upon the earliest to
occur of (i) the Exchange Date, (ii) the date on which the Dealer Managers give
notice to the Company and the Trust that any of the conditions specified in
Section 8 have not been fulfilled as of any date such conditions are required
to be fulfilled pursuant to Section 8 or (iii) the date on
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which the Company terminates or withdraws the Exchange Offer for any reason
(the earliest to occur of clauses (i), (ii) or (iii) being referred to as the
"Termination Date ").
(b) Notwithstanding termination of this Agreement
pursuant to subsection (a) of this Section 9, the obligations of the Company to
compensate and/or reimburse, as applicable, the Dealer Managers pursuant to
Section 3, 4 or 5, the representations and warranties contained in Section 6
and the provisions of Section 7 shall survive any termination of this
Agreement.
10. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication.
Notices to the Dealer Managers shall be directed to Xxxxxxx Xxxxx & Co., World
Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, attention
Syndicate Operations, with a copy to ________, and notices to the Company and
the Trust shall be directed to _________. Any notice under Section 7 hereof
may be made by telex or telephone, but if so made, shall be subsequently
confirmed promptly in writing.
11. Tombstone. The Company and the Trust acknowledge
that the Dealer Managers may, with the prior review and approval of the
Company, which approval shall not be unreasonably withheld, place an
announcement in such newspapers and periodicals as the Dealer Managers may
choose, stating that the Dealer Managers are or were acting as dealer manager
and financial advisors to the Company and the Trust in connection with the
Exchange Offer. The costs relating to any such tombstone shall be borne by the
Dealer Managers.
12. Survival of Certain Provisions. The representations,
warranties, indemnities and agreements of the Company and the Trust will remain
operative and in full force and effect regardless of any investigation made by
or on behalf of any of the Dealer Managers or any affiliate or controlling
person thereof and, subject to Section 9(b), will survive the consummation of
the Exchange Offer.
13. Governing Law. This Agreement shall be construed in
accordance with and governed by the internal laws of the State of New York.
14. Counterparts. This Agreement may be executed in one
or more counterparts, and by different parties hereto on separate counterparts,
each of which counterparts, when so executed and delivered, shall be deemed to
be an original and all of which counterparts, taken together, shall constitute
one and the same Agreement.
15. Successors. This Agreement is made solely for the
benefit of the Dealer Managers, the Company and the Trust and, to the extent
expressed, the parties indemnified pursuant to Section 7, and no other persons
shall acquire or have any right
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under or by virtue of this Agreement. Nothing in this Agreement, expressed or
implied, is intended to confer on any person other than the parties hereto or
their respective successors and assigns, and, to the extent expressly set forth
herein, the parties indemnified pursuant to Section 7 hereof, any rights or
remedies under or by reason of this Agreement. Without limiting the generality
of the foregoing, the parties acknowledge that nothing in this Agreement,
expressed or implied, is intended to confer on holders of the securities of the
Trust, the Company or any of its subsidiaries or creditors of the Company or
any of its subsidiaries or the respective successors and assigns of such
creditors, any rights or remedies under or by reason of this Agreement.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon
this instrument will become a binding agreement among the Company, the Trust
and the Dealer Managers in accordance with its terms.
Very truly yours,
UAL CORPORATION
By:_____________________________________
UAL CORPORATION CAPITAL TRUST I
By: UAL Corporation, as sponsor
By:_____________________________________
Confirmed and accepted as of
the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
XXXXX XXXXXX INC.
+
By: Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated
By:________________________________________
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