1
EXHIBIT 4.10
--------------------------------------------------------------------------------
INTERCREDITOR AGREEMENT
Dated as of December 14, 2000
between
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Trustee under the
United Airlines 2000-2A-1 Pass Through Trust,
United Airlines 2000-2A-2 Pass Through Trust,
United Airlines 2000-2B Pass Through Trust,
United Airlines 2000-2C Pass Through Trust
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
as Class A-1 Liquidity Provider,
Class A-2 Liquidity Provider,
Class B Liquidity Provider, and
Class C Liquidity Provider
and
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity except
as expressly set forth herein but
solely as Subordination Agent
--------------------------------------------------------------------------------
2
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
1.1 Definitions.....................................................................................2
ARTICLE II
TRUST ACCOUNTS; CONTROLLING PARTY
2.1 Agreement to Terms of Subordination; Payments from Monies
Received Only..................................................................................23
2.2 Trust Accounts.................................................................................24
2.3 Deposits to the Collection Account and Special Payments Account................................25
2.4 Distributions of Special Payments..............................................................25
2.5 Designated Representatives.....................................................................28
2.6 Controlling Party..............................................................................29
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
AMOUNTS RECEIVED
3.1 Written Notice of Distribution.................................................................30
3.2 Distribution of Amounts on Deposit in the Collection Account...................................33
3.3 Distribution of Amounts on Deposit Following a Triggering Event................................34
3.4 Other Payments.................................................................................36
3.5 Payments to the Trustee and the Liquidity Providers............................................37
3.6 Liquidity Facilities...........................................................................37
ARTICLE IV
EXERCISE OF REMEDIES
4.1 Directions from the Controlling Party..........................................................45
4.2 Remedies Cumulative............................................................................46
4.3 Discontinuance of Proceedings..................................................................47
4.4 Right of Certificateholders to Receive Payments Not to Be Impaired.............................47
4.5 Undertaking for Costs..........................................................................47
3
ARTICLE V
DUTIES OF THE SUBORDINATION AGENT;
AGREEMENTS OF TRUSTEES, ETC.
5.1 Notice of Indenture Default or Triggering Event................................................48
5.2 Indemnification................................................................................48
5.3 No Duties Except as Specified in Intercreditor Agreement.......................................48
5.4 Notice from the Liquidity Providers and Trustee................................................49
ARTICLE VI
THE SUBORDINATION AGENT
6.1 Acceptance of Trusts and Duties................................................................49
6.2 Absence of Duties..............................................................................49
6.3 No Representations or Warranties as to Documents...............................................49
6.4 No Segregation of Monies; No Interest..........................................................50
6.5 Reliance; Agents; Advice of Counsel............................................................50
6.6 Capacity in Which Acting.......................................................................50
6.7 Compensation...................................................................................51
6.8 May Become Certificateholder...................................................................51
6.9 Subordination Agent Required; Eligibility......................................................51
6.10 Money to Be Held in Trust......................................................................51
ARTICLE VII
[Reserved]
ARTICLE VIII
SUCCESSOR SUBORDINATION AGENT
8.1 Replacement of Subordination Agent; Appointment of Successor...................................52
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS
9.1 Amendments, Waivers, etc.......................................................................53
9.2 Subordination Agent Protected..................................................................55
9.3 Effect of Supplemental Agreements..............................................................55
9.4 Copy to Rating Agencies........................................................................55
ii
4
ARTICLE X
MISCELLANEOUS
10.1 Termination of Intercreditor Agreement.........................................................56
10.2 Intercreditor Agreement for Benefit of Trustee, Liquidity Providers and
Subordination Agent............................................................................56
10.3 Notices........................................................................................56
10.4 Severability...................................................................................57
10.5 No Oral Modifications or Continuing Waivers....................................................58
10.6 Successors and Assigns.........................................................................58
10.7 Headings.......................................................................................58
10.8 Counterpart Form...............................................................................58
10.9 Subordination..................................................................................58
10.10 GOVERNING LAW..................................................................................59
10.11 Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Indemnity..........................59
iii
5
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT, dated as of December 14, 2000, between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a
national banking association ("State Street"), not in its individual capacity
but solely as Trustee of each Trust (each as defined below), WESTDEUTSCHE
LANDESBANK GIROZENTRALE, a German banking institution organized under the laws
of the State of North Rhine-Westphalia, acting through its New York branch, as
the Class A-1 Liquidity Provider, the Class A-2 Liquidity Provider, the Class B
Liquidity Provider and the Class C Liquidity Provider and STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, not in its individual
capacity except as expressly set forth herein, but solely as Subordination Agent
hereunder (in such capacity, together with any successor appointed pursuant to
Article VIII, the "Subordination Agent").
WHEREAS, all capitalized terms used and not otherwise defined herein
shall have the respective meanings referred to in Article I;
WHEREAS, pursuant to the Indentures covering the twelve Airbus A319-131
aircraft, six Airbus A320-232 aircraft, seven Boeing 757-222 aircraft, three
Boeing 747-422 aircraft, and nine Boeing 777-200ER aircraft owned by United,
United proposes to issue on a recourse basis four series of Notes for general
corporate purposes (and, pursuant to the related Indenture, may in the future
issue on a recourse basis a fifth series of Notes);
WHEREAS, pursuant to the Note Purchase Agreement, each Trust will
acquire those Notes having an interest rate equal to the interest rate
applicable to the Certificates to be issued by such Trust;
WHEREAS, pursuant to each Trust Agreement executed and delivered from
time to time, the Trust created thereby proposes to issue a single class of
Certificates (each, a "Class"), designated as either Class A-1 Certificates,
Class A-2 Certificates, Class B Certificates or Class C Certificates, bearing
the interest rate and having the final distribution date described in such Trust
Agreement on the terms and subject to the conditions set forth therein;
WHEREAS, pursuant to the Underwriting Agreement, on the Closing Date
the Underwriters propose to purchase the Class A-1 Certificates, the Class A-2
Certificates, the Class B Certificates and the Class C Certificates issued by
the related Trust in the aggregate face amount set forth opposite the name of
such Trust on Schedule I thereto on the terms and subject to the conditions set
forth therein;
WHEREAS, the Class A-1 Liquidity Provider proposes to enter into a
revolving credit agreement relating to the Class A-1 Certificates, the Class A-2
Liquidity Provider proposes to enter into a revolving credit agreement relating
to the Class A-2 Certificates, the Class B Liquidity Provider proposes to enter
into a revolving credit agreement relating to the Class B
6
[2000-2 Intercreditor Agreement]
Certificates and the Class C Liquidity Provider proposes to enter into a
revolving credit agreement relating to the Class C Certificates (each, a
"Liquidity Facility"), in each case with the Subordination Agent, as agent for
the Trustee of the Class A-1 Trust, the Class A-2 Trust, the Class B Trust or
the Class C Trust, as applicable, for the benefit of the Certificateholders of
each such Trust; and
WHEREAS, it is a condition precedent to the obligations of the
Underwriters under the Underwriting Agreement that the Subordination Agent, the
Trustees and the Liquidity Providers agree to the terms of subordination set
forth in this Agreement in respect of each Class of Certificates, and the
Subordination Agent, the Trustees and the Liquidity Providers, by entering into
this Agreement, hereby acknowledge and agree to such terms of subordination and
the other provisions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms used herein that are defined in this Article I
have the meanings assigned to them in this Article I, and include the plural as
well as the singular;
(b) all references in this Agreement to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles, Sections and
other subdivisions of this Agreement;
(c) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision; and
(d) the term "including" means "including without limitation".
"Acceleration" means, with respect to the amounts payable in
respect of the Notes issued under any Indenture, such amounts to be
immediately due and payable by declaration or otherwise. "Accelerate,"
"Accelerated" and "Accelerating" have meanings correlative to the
foregoing.
2
7
[2000-2 Intercreditor Agreement]
"Additional Payment" means a payment of Make-Whole Amount, if
any.
"Adjusted Expected Distributions" means, with respect to the
Certificates of any Trust on any Current Distribution Date, the sum of
(x) accrued and unpaid interest on such Certificates and (y) the
greater of:
(A) the difference between (x) the Pool Balance
of such Certificates as of the preceding
Distribution Date (or, if the Current
Distribution Date is the first Distribution
Date, the original aggregate face amount of
the Certificates of such Trust) and (y) the
Pool Balance of such Certificates as of the
Current Distribution Date calculated on the
basis that (i) the principal of the
Non-Performing Equipment Notes held in such
Trust has been paid in full and such
payments have been distributed to the
holders of such Certificates and (ii) the
principal of the Performing Equipment Notes
held in such Trust has been paid when due
(but without giving effect to any
Acceleration of any thereof) and such
payments have been distributed to the
holders of such Certificates; and
(B) the amount of the excess, if any, of (i) the
Pool Balance of such Class of Certificates
as of the preceding Distribution Date (or,
if the Current Distribution Date is the
first Distribution Date, the original
aggregate face amount of the Certificates of
such Trust), over (ii) the Aggregate LTV
Collateral Amount for such Class of
Certificates for the Current Distribution
Date;
provided, however, that, until the date of the initial LTV Appraisals,
clause (B) shall not apply.
For purposes of calculating Adjusted Expected Distributions with
respect to the Certificates of any Trust, any Additional Payment paid
on the Notes held in such Trust that has not been distributed to the
Certificateholders of such Trust (other than such Additional Payment or
a portion thereof applied to the payment of interest on the
Certificates of such Trust or the reduction of the Pool Balance of such
Trust) shall be added to the amount of Adjusted Expected Distributions.
"Advance" means, with respect to any Liquidity Facility, any
Advance as defined in such Liquidity Facility.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by or under
common control with such Person. For the purposes of this definition,
"control" means the power, directly or indirectly, to direct or
3
8
[2000-2 Intercreditor Agreement]
cause the direction of the management and policies of such Person
whether through the ownership of voting securities or by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Aggregate LTV Collateral Amount" for any Class of
Certificates for any Distribution Date means the product of (A)(i) the
sum of the applicable LTV Collateral Amounts for all Aircraft, minus
(ii) the Pool Balance for each Class of Certificates, if any, senior to
such Class, after giving effect to any distribution of principal on
such Distribution Date with respect to such senior Class or Classes,
multiplied by (B)(i) in the case of the Class A-1 Certificates or Class
A-2 Certificates, a fraction the numerator of which equals the Current
Pool Balance for the Class A-1 Certificates or Class A-2 Certificates,
as the case may be, and the denominator of which equals the aggregate
Current Pool Balance for the Class A-1 Certificates and Class A-2
Certificates, and (ii) in the case of the Class B Certificates and the
Class C Certificates, 1.0.
"Aircraft" means, with respect to each Indenture, the
"Aircraft" referred to therein.
"Appraisal" means a fair market value appraisal (which may be
a "desktop" appraisal) performed by any Appraiser or any other
nationally recognized appraiser on the basis of an arm's-length
transaction between an informed and willing purchaser under no
compulsion to buy and an informed and willing seller under no
compulsion to sell and both having knowledge of all relevant facts.
"Appraised Current Market Value" of any Aircraft means the
average of three of the five most recent Appraisals of such Aircraft
determined by removing the Appraisals with the highest and lowest
appraisal value.
"Appraisers" means, collectively, Aircraft Information
Services, Inc., Xxxxxx Xxxxx and Xxxxx, Inc., AvSolutions Inc., AVITAS,
Inc. and BK Associates, Inc..
"Available Amount" means, with respect to any Liquidity
Facility on any drawing date, subject to the proviso contained in the
first sentence of Section 3.6(g) hereof, an amount equal to (a) the
Stated Amount of such Liquidity Facility at such time, less (b) the
aggregate amount of each Interest Drawing honored by the Liquidity
Provider under such Liquidity Facility on or prior to such date that
has not been reimbursed or reinstated as of such date; provided,
however, that, following a Downgrade Drawing, a Non-Extension Drawing
or a Final Drawing under such Liquidity Facility, the Available Amount
of such Liquidity Facility shall be zero.
"Bankruptcy Code" has the meaning assigned to such term in the
definition of "Performing Equipment Note" in this Section 1.1.
4
9
[2000-2 Intercreditor Agreement]
"Basic Pass Through Trust Agreement" with respect to any
Trust, means the Pass Through Trust Agreement, dated as of December 14,
2000, between United and State Street, as the same may from time to
time be supplemented, amended or modified, but does not include any
Trust Supplement.
"Business Day" means any day (i) other than a Saturday or
Sunday or a day on which commercial banks are required or authorized to
close in Chicago, Illinois, New York, New York or the city and state in
which any Trustee, the Subordination Agent or any Indenture Trustee
maintains its Corporate Trust Office or receives and disburses funds,
and (ii) that, solely with respect to draws under any Liquidity
Facility, also is a "Business Day" as defined in such Liquidity
Facility.
"Cash Collateral Account" means the Class A-1 Cash Collateral
Account, the Class A-2 Cash Collateral Account, the Class B Cash
Collateral Account or the Class C Cash Collateral Account, as
applicable.
"Certificate" means a Class A-1 Certificate, a Class A-2
Certificate, a Class B Certificate or a Class C Certificate, as
applicable.
"Certificateholder" means any holder of one or more
Certificates.
"Class" has the meaning assigned to such term in the
preliminary statements to this Agreement.
"Class A-1 Cash Collateral Account" means an Eligible Deposit
Account in the name of the Subordination Agent maintained at an
Eligible Institution, which shall be the Subordination Agent if it
shall so qualify, into which all amounts drawn under the Class A-1
Liquidity Facility pursuant to Section 3.6(c), 3.6(d) or 3.6(i) shall
be deposited.
"Class A-1 Certificateholder" means, at any time, any holder
of one or more Class A-1 Certificates.
"Class A-1 Certificates" means the certificates issued by the
Class A-1 Trust, substantially in the form of Exhibit A to the Class
A-1 Trust Agreement, and authenticated by the Class A-1 Trustee,
representing fractional undivided interests in the Class A-1 Trust, and
any certificates issued in exchange therefor or replacement thereof
pursuant to the terms of the Class A-1 Trust Agreement.
"Class A-1 Liquidity Facility" means, initially, the Revolving
Credit Agreement, dated as of December 14, 2000, between the
Subordination Agent, as agent and trustee for the Class A-1 Trust, and
the initial Class A-1 Liquidity Provider relating to the Class A-1
Certificates, and, from and after the replacement of such Revolving
Credit
5
10
[2000-2 Intercreditor Agreement]
Agreement pursuant hereto, the Replacement Liquidity Facility therefor,
if any, in each case as amended, supplemented or otherwise modified
from time to time in accordance with its terms.
"Class A-1 Liquidity Provider" means Westdeutsche Landesbank
Girozentrale, acting through its New York branch, or any Replacement
Liquidity Provider or Replacement Liquidity Providers that have issued
a Replacement Liquidity Facility to replace the Class A-1 Liquidity
Facility pursuant to Section 3.6(c) or 3.6(e).
"Class A-1 Trust" means United Airlines 2000-2A-1 Pass Through
Trust created and administered pursuant to the Class A-1 Trust
Agreement.
"Class A-1 Trust Agreement" means the Class A-1 Trust
Supplement, dated as of December 14, 2000, between United and State
Street, together with the Basic Pass Through Trust Agreement, as each
may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
"Class A-1 Trust Supplement" shall mean a Trust Supplement
that (i) creates a separate Trust for the benefit of the
Certificateholders of the Class A-1 Certificates, (ii) authorizes the
issuance of the Class A-1 Certificates and (iii) establishes the terms
of the Class A-1 Certificates.
"Class A-1 Trustee" means State Street Bank and Trust Company
of Connecticut, National Association, not in its individual capacity
but solely as trustee under the Class A-1 Trust Agreement, together
with any successor trustee appointed pursuant thereto.
"Class A-2 Cash Collateral Account" means an Eligible Deposit
Account in the name of the Subordination Agent maintained at an
Eligible Institution, which shall be the Subordination Agent if it
shall so qualify, into which all amounts drawn under the Class A-2
Liquidity Facility pursuant to Section 3.6(c), 3.6(d) or 3.6(i) shall
be deposited.
"Class A-2 Certificateholder" means, at any time, any holder
of one or more Class A-2 Certificates.
"Class A-2 Certificates" means the certificates issued by the
Class A-2 Trust, substantially in the form of Exhibit A to the Class
A-2 Trust Agreement, and authenticated by the Class A-2 Trustee,
representing fractional undivided interests in the Class A-2 Trust, and
any certificates issued in exchange therefor or replacement thereof
pursuant to the terms of the Class A-2 Trust Agreement.
6
11
[2000-2 Intercreditor Agreement]
"Class A-2 Liquidity Facility" means, initially, the Revolving
Credit Agreement, dated as of December 14, 2000, between the
Subordination Agent, as agent and trustee for the Class A-2 Trust, and
the initial Class A-2 Liquidity Provider relating to the Class A-2
Certificates, and, from and after the replacement of such Revolving
Credit Agreement pursuant hereto, the Replacement Liquidity Facility
therefor, if any, in each case as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"Class A-2 Liquidity Provider" means Westdeutsche Landesbank
Girozentrale, acting through its New York branch, or any Replacement
Liquidity Provider or Replacement Liquidity Providers that have issued
a Replacement Liquidity Facility to replace the Class A-2 Liquidity
Facility pursuant to Section 3.6(c) or 3.6(e).
"Class A-2 Trust" means United Airlines 2000-2A-2 Pass Through
Trust created and administered pursuant to the Class A-2 Trust
Agreement.
"Class A-2 Trust Agreement" means the Class A-2 Trust
Supplement, dated as of December 14, 2000, between United and State
Street, together with the Basic Pass Through Trust Agreement, as each
may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
"Class A-2 Trust Supplement" shall mean a Trust Supplement
that (i) creates a separate Trust for the benefit of the
Certificateholders of the Class A-2 Certificates, (ii) authorizes the
issuance of Class A-2 Certificates and (iii) establishes the terms of
the Class A-2 Certificates.
"Class A-2 Trustee" means State Street Bank and Trust Company
of Connecticut, National Association, not in its individual capacity
but solely as trustee under the Class A-2 Trust Agreement, together
with any successor trustee appointed pursuant thereto.
"Class B Cash Collateral Account" means an Eligible Deposit
Account in the name of the Subordination Agent maintained at an
Eligible Institution, which shall be the Subordination Agent if it
shall so qualify, into which all amounts drawn under the Class B
Liquidity Facility pursuant to Section 3.6(c), 3.6(d) or 3.6(i) shall
be deposited.
"Class B Certificateholder" means, at any time, any holder of
one or more Class B Certificates.
"Class B Certificates" means the certificates issued by the
Class B Trust, substantially in the form of Exhibit A to the Class B
Trust Agreement, and authenticated by the Class B Trustee, representing
fractional undivided interests in the Class B Trust,
7
12
[2000-2 Intercreditor Agreement]
and any certificates issued in exchange therefor or replacement thereof
pursuant to the terms of the Class B Trust Agreement.
"Class B Liquidity Facility" means, initially, the Revolving
Credit Agreement, dated as of December 14, 2000, between the
Subordination Agent, as agent of the Trustee, and the initial Class B
Liquidity Provider relating to the Class B Certificates, and, from and
after the replacement of such Revolving Credit Agreement pursuant
hereto, the Replacement Liquidity Facility therefor, if any, in each
case as amended, supplemented or otherwise modified from time to time
in accordance with its terms.
"Class B Liquidity Provider" means Westdeutsche Landesbank
Girozentrale, acting through its New York branch, or any Replacement
Liquidity Provider or Replacement Liquidity Providers that have issued
a Replacement Liquidity Facility to replace the Class B Liquidity
Facility pursuant to Section 3.6(c) or 3.6(e).
"Class B Trust" means United Airlines 2000-2B Pass Through
Trust created and administered pursuant to the Class B Trust Agreement.
"Class B Trust Agreement" means the Class B Trust Supplement,
dated as of December 14, 2000, between United and State Street,
together with the Basic Pass Through Trust Agreement, as each may be
amended, supplemented or otherwise modified from time to time in
accordance with its terms.
"Class B Trust Supplement" shall mean a Trust Supplement that
(i) creates a separate Trust for the benefit of the Certificateholders
of the Class B Certificates, (ii) authorizes the issuance of Class B
Certificates and (iii) establishes the terms of the Class B
Certificates.
"Class B Trustee" means State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity but
solely as trustee under the Class B Trust Agreement, together with any
successor trustee appointed thereto.
"Class C Cash Collateral Account" means an Eligible Deposit
Account in the name of the Subordination Agent maintained at an
Eligible Institution, which shall be the Subordination Agent if it
shall so qualify, into which all amounts drawn under the Class C
Liquidity Facility pursuant to Section 3.6(c), 3.6(d) or 3.6(i) shall
be deposited.
"Class C Certificateholder" means, at any time, any holder of
one or more Class C Certificates.
"Class C Certificates" means the certificates issued by the
Class C Trust, substantially in the form of Exhibit A to the Class C
Trust Agreement, and authenticated
8
13
[2000-2 Intercreditor Agreement]
by the Class C Trustee, representing fractional undivided interests in
such Class C Trust, and any certificates issued in exchange therefor or
in replacement thereof pursuant to the terms of such Class C Trust
Agreement.
"Class C Liquidity Facility" means, initially, the Revolving
Credit Agreement, dated as of December 14, 2000, between the
Subordination Agent, as agent of the Trustee, and the initial Class C
Liquidity Provider relating to the Class C Certificates, and, from and
after the replacement of such Revolving Credit Agreement pursuant
hereto, the Replacement Liquidity Facility therefor, if any, in each
case as amended, supplemented or otherwise modified from time to time
in accordance with its terms.
"Class C Liquidity Provider" means Westdeutsche Landesbank
Girozentrale, acting through its New York branch, or any Replacement
Liquidity Provider or Replacement Liquidity Providers that have issued
a Replacement Liquidity Facility to replace the Class C Liquidity
Facility pursuant to Section 3.6(c) or 3.6(e).
"Class C Trust" means United Airlines 2000-2C Pass Through
Trust created and administered pursuant to the Class C Trust Agreement.
"Class C Trust Agreement" means the Class C Trust Supplement,
dated as of December 14, 2000, between United and State Street,
together with the Basic Pass Through Trust Agreement, as each may be
amended, supplemented or otherwise modified from time to time in
accordance with its terms.
"Class C Trust Supplement" shall mean a Trust Supplement that
(i) creates a separate Trust for the benefit of the Certificateholders
of the Class C Certificates, (ii) authorizes the issuance of Class C
Certificates and (iii) establishes the terms of the Class C
Certificates.
"Class C Trustee" means State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity but
solely as trustee under the Class C Trust Agreement, together with any
successor trustee appointed thereto.
"Class D Certificates" means any pass through certificates
issued by any Class D Trust, representing fractional undivided
interests in the Class D Trust, and any certificates issued in exchange
therefor or in replacement thereof pursuant to the terms of a Class D
Trust Supplement and basic pass through trust agreement executed in
connection therewith.
"Class D Trust" means the United Airlines Pass Through Trust
2000-2D, if and when created.
9
14
[2000-2 Intercreditor Agreement]
"Class D Trust Supplement" shall mean a Trust Supplement that
(i) creates a separate trust for the benefit of the Holders of the
Class D Certificates, (ii) authorizes the issuance of Class D
Certificates and (iii) establishes the terms of the Class D
Certificates.
"Closing Date" means December 14, 2000.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and Treasury Regulations promulgated thereunder.
"Collection Account" means the Eligible Deposit Account
established by the Subordination Agent pursuant to Section 2.2(a) into
and from which the Subordination Agent shall make deposits and
withdrawals in accordance with this Agreement.
"Consent Period" has the meaning specified in Section 3.6(d).
"Controlling Party" means the Person entitled to act as such
pursuant to the terms of Section 2.6.
"Corporate Trust Office" means, with respect to any Trustee,
the Subordination Agent or any Indenture Trustee, the office of such
Person in the city at which, at any particular time, its corporate
trust business shall be principally administered.
"Current Distribution Date" means a Distribution Date
specified as a reference date for calculating the Expected
Distributions or the Adjusted Expected Distributions with respect to
the Certificates of any Trust as of such Distribution Date.
"Current Pool Balance" means the amount described in clause
(B)(i) of the definition of "Adjusted Expected Distributions."
"Designated Representatives" means the Subordination Agent
Representatives, the Trustee Representatives and the LP Representatives
identified under Section 2.5.
"Distribution Date" means a Regular Distribution Date or a
Special Distribution Date.
"Dollars" means United States dollars.
"Downgrade Drawing" has the meaning assigned to such term in
Section 3.6(c).
"Downgraded Facility" has the meaning assigned to such term in
Section 3.6(c).
10
15
[2000-2 Intercreditor Agreement]
"Drawing" means an Interest Drawing, a Final Drawing, a
Non-Extension Drawing or a Downgrade Drawing, as the case may be.
"Eligible Deposit Account" means either (a) a segregated
account with an Eligible Institution or (b) a segregated trust account
with the corporate trust department of a depository institution
organized under the laws of the United States of America or any one of
the states thereof or the District of Columbia (or any U.S. branch of a
foreign bank), having corporate trust powers and acting as trustee for
funds deposited in such account, so long as any of the securities of
such depository institution has a long-term unsecured debt rating from
each Rating Agency of at least "A-3" or its equivalent. An Eligible
Deposit Account may be maintained with a Liquidity Provider so long as
such Liquidity Provider is an Eligible Institution; provided, however,
that such Liquidity Provider shall have waived all rights of set-off
and counterclaim with respect to such account; and provided, further,
that each institution at which any Eligible Deposit Account is
maintained shall agree, for all purposes of the applicable UCC,
including Article 8 thereof, that (a) such account shall be a
"securities account" (as defined in Section 8-501 of the UCC), (b) all
property credited to such account shall be treated as a "financial
asset" (as defined in Section 8-102(9) of the UCC), (c) the
Subordination Agent shall be the "entitlement holder" (as defined in
Section 8-102(7) of the UCC) in respect of such account, (d) such
institution shall comply with all entitlement orders issued by the
Subordination Agent to the exclusion of any other Person and (e) the
"securities intermediary jurisdiction" (under Section 8-110(e) of the
UCC) shall be the State of Illinois.
"Eligible Institution" means (a) the corporate trust
department of the Subordination Agent or any Trustee, as applicable, so
long as it has a long term unsecured debt rating from each Rating
Agency of at least "A-3" or its equivalent, or (b) a depository
institution organized under the laws of the United States of America or
any one of the states thereof or the District of Columbia (or any U.S.
branch of a foreign bank), which has a long-term unsecured debt rating
from each Rating Agency of at least "A-3" or its equivalent.
"Eligible Investments" means each of (i) obligations of, or
guaranteed by, the United States Government, (ii) open market
commercial paper of any corporation incorporated under the laws of the
United States of America or any state thereof rated at least "P-1" or
its equivalent by Moody's and at least "A-1" or its equivalent by
Standard & Poor's, (iii) certificates of deposit, time deposits or
other direct obligations of, or obligations guaranteed by, commercial
banks organized under the laws of the United States or of any political
subdivision thereof having a combined capital and surplus in excess of
$500,000,000 which banks or their holding companies have a rating of
"A" or its equivalent by Moody's or Standard & Poor's; provided,
however, that the aggregate amount at any one time so invested in
certificates of deposit issued by any one bank shall
11
16
[2000-2 Intercreditor Agreement]
not exceed 5% of such bank's capital and surplus, (iv) U.S. dollar
denominated offshore certificates of deposit issued by, or offshore
time deposits with, any commercial bank described in clause (iii) or
any subsidiary thereof and (v) repurchase agreements with any financial
institution having combined capital and surplus of at least
$500,000,000 with any of the obligations described in clauses (i)
through (iv) as collateral; provided that all Eligible Investments held
pursuant to this Agreement must be held in an Eligible Deposit Account.
"Expected Distributions" means, with respect to the
Certificates of any Trust on any Current Distribution Date, the sum of
(x) accrued and unpaid interest on such Certificates and (y) the
difference between (A) the Pool Balance of such Certificates as of the
preceding Distribution Date (or, if the Current Distribution Date is
the first Distribution Date, the original aggregate face amount of the
Certificates of such Trust) and (B) the Pool Balance of such
Certificates as of the Current Distribution Date, calculated on the
basis that (i) the principal of the Notes held in such Trust has been
paid when due (whether at stated maturity, upon redemption, prepayment,
purchase or Acceleration or otherwise) and such payments have been
distributed to the holders of such Certificates and (ii) the principal
of any Notes formerly held in such Trust that have been sold pursuant
to the terms hereof has been paid in full and such payments have been
distributed to the holders of such Certificates. For purposes of
calculating Expected Distributions, any Additional Payment paid on the
Notes held in any Trust which has not been distributed to the
Certificateholders of such Trust (other than such Additional Payment or
a portion thereof applied to the payment of interest on the
Certificates of such Trust or the reduction of the Pool Balance of such
Trust) shall be added to the amount of such Expected Distributions.
"Expiry Date" with respect to any Liquidity Facility, shall
have the meaning set forth in such Liquidity Facility.
"Fee Letter" means the Fee Letter, dated as of December 14,
2000, between United, Westdeutsche Landesbank Girozentrale and the
Subordination Agent with respect to the initial Liquidity Facilities,
and any fee letter entered into between the Subordination Agent and any
Replacement Liquidity Provider.
"Final Distributions" means, with respect to the Certificates
of any Trust on any Distribution Date, the sum of (x) the aggregate
amount of all accrued and unpaid interest on such Certificates and (y)
the Pool Balance of such Certificates as of the preceding Distribution
Date. For purposes of calculating Final Distributions, any Additional
Payment paid on the Notes held in any Trust which has not been
distributed to the Certificateholders of such Trust (other than such
Additional Payment or a portion thereof applied to the payment of
interest on the Certificates of such Trust or the reduction of the Pool
Balance of such Trust) shall be added to the amount of such Final
Distributions.
12
17
[2000-2 Intercreditor Agreement]
"Final Drawing" has the meaning assigned to such term in
Section 3.6(i).
"Final Maturity Date" for the Class A-1 Certificates means
April 1, 2012, for the Class A-2 Certificates means October 1, 2012,
for the Class B Certificates means April 1, 2011, and for the Class C
Certificates means April 1, 2007.
"Indenture" means, with respect to the Notes, each of the one
or more separate trust indentures and mortgages described on Schedule I
attached to this Agreement, as each such indenture may be amended,
supplemented or modified in accordance with its respective terms.
"Indenture Default" means, with respect to any Indenture, any
Indenture Event of Default (as such term is defined in such Indenture)
thereunder.
"Indenture Estate" means, with respect to any Indenture, the
"Indenture Estate" referred to therein.
"Indenture Trustee" means, with respect to any Indenture, the
indenture trustee thereunder.
"Interest Drawing" has the meaning assigned to such term in
Section 3.6(a).
"Investment Earnings" means investment earnings on funds on
deposit in the Trust Accounts net of losses and investment expenses of
the Subordination Agent in making such investments.
"Lien" means any mortgage, pledge, lien, charge, claim,
disposition of title, encumbrance, lease, sublease, or security
interest of any kind, including any arising under any conditional sales
or other title retention agreement.
"Liquidity Event of Default," with respect to any Liquidity
Facility, has the meaning assigned to such term in such Liquidity
Facility.
"Liquidity Expenses" means, with respect to the Liquidity
Facilities, all Liquidity Obligations other than (i) the principal
amount of any Drawings under the Liquidity Facilities and (ii) any
interest accrued on such Liquidity Obligations.
"Liquidity Facility" means, at any time, the Class A-1
Liquidity Facility, the Class A-2 Liquidity Facility, the Class B
Liquidity Facility or the Class C Liquidity Facility, as applicable.
13
18
[2000-2 Intercreditor Agreement]
"Liquidity Obligations" means, with respect to the Liquidity
Facilities, all principal, interest, fees and other amounts owing to
the Liquidity Providers under the Liquidity Facilities, the Note
Purchase Agreement, the Participation Agreements and the Fee Letter.
"Liquidity Provider" means the Class A-1 Liquidity Provider,
the Class A-2 Liquidity Provider, the Class B Liquidity Provider and
the Class C Liquidity Provider, as applicable.
"LP Incumbency Certificate" has the meaning assigned to such
term in Section 2.5(c).
"LP Representatives" has the meaning assigned to such term in
Section 2.5(c).
"LTV Appraisals" has the meaning assigned to such term in
Section 4.1(a).
"LTV Collateral Amount" of any Aircraft for any Class of
Certificates means, as of any Distribution Date, the lesser of (i) the
LTV Ratio for such Class of Certificates multiplied by the Appraised
Current Market Value of such Aircraft (or with respect to any such
Aircraft that has suffered an Event of Loss under and as defined in the
relevant Indenture, the amount of the insurance proceeds paid to the
related Indenture Trustee in respect thereof to the extent then held by
such Indenture Trustee (and/or on deposit in the Special Payments
Account) or payable to such Indenture Trustee in respect thereof) and
(ii) the outstanding principal amount of the Notes secured by such
Aircraft after giving effect to any principal payments of such Notes on
or before such Distribution Date.
"LTV Ratio" means for the Class A-1 Certificates 45.0%, the
Class A-2 Certificates 45.0%, the Class B Certificates 61.0% and/or the
Class C Certificates 65.6%.
"Make-Whole Amount" shall have the meaning set forth in the
Indentures.
"Minimum Sale Price" means, with respect to any Aircraft or
the Notes issued in respect of such Aircraft, at any time, the lesser
of (a) 75% of the Appraised Current Market Value of such Aircraft and
(b) the aggregate outstanding principal amount of such Notes, plus
accrued and unpaid interest thereon.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Non-Controlling Party" means, at any time, any Trustee or
Liquidity Provider that is not the Controlling Party at such time.
"Non-Extended Facility" has the meaning assigned to such term
in Section 3.6(d).
14
19
[2000-2 Intercreditor Agreement]
"Non-Extension Drawing" has the meaning assigned to such term
in Section 3.6(d).
"Non-Performing Equipment Note" means a Note issued pursuant
to an Indenture that is not a Performing Equipment Note.
"Note Purchase Agreement" means the Note Purchase Agreement,
dated as of December 14, 2000, between the Company, the Subordination
Agent, the Indenture Trustee under the Indentures, and the Trustee,
relating to the Notes in respect of the Aircraft.
"Notes" means, at any time, the Series A-1 Notes, the Series
A-2 Notes, the Series B Notes and the Series C Notes, collectively, and
in each case, any Notes issued in exchange therefor or replacement
thereof pursuant to the terms of the Indentures.
"Officer's Certificate" of any Person means a certification
signed by a Responsible Officer of such Person.
"Operative Agreements" means this Agreement, the Liquidity
Facilities, the Fee Letter, the Indentures, the Trust Agreements, the
Underwriting Agreement, the Note Purchase Agreement, the Participation
Agreements, the Notes and the Certificates, together with all exhibits
and schedules included with any of the foregoing.
"Outstanding" means, when used with respect to each Class of
Certificates, as of the date of determination, all Certificates of such
Class theretofore authenticated and delivered under the related Trust
Agreements, except:
(i) Certificates of such Class theretofore canceled
by the Registrar (as defined in such Trust Agreement) or delivered to
the Trustee thereunder or such Registrar for cancellation;
(ii) Certificates of such Class for which money in
the full amount required to make the final distribution with respect to
such Certificates pursuant to Section 11.01 of such Trust Agreement has
been theretofore deposited with the related Trustee in trust for the
holders of such Certificates as provided in Section 4.01 of such Trust
Agreement pending distribution of such money to such Certificateholders
pursuant to such final distribution payment; and
(iii) Certificates of such Class in exchange for or
in lieu of which other Certificates of like Class have been
authenticated and delivered pursuant to such Trust Agreement;
15
20
[2000-2 Intercreditor Agreement]
provided, however, that in determining whether the holders of the
requisite Outstanding amount of such Certificates have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, any Certificates owned by United or any of its Affiliates
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether such Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or
waiver, only Certificates that such Trustee knows to be so owned shall
be so disregarded. Notwithstanding the foregoing, (x) if United or any
of its Affiliates shall own 100% of the Certificates, such Certificates
shall not be so disregarded and (y) Certificates so owned by United or
any of its Affiliates that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such
Certificates and that the pledgee is not United or any of its
Affiliates.
"Overdue Scheduled Payment" means any Scheduled Payment that
is not in fact received by the Subordination Agent within five days
after the Scheduled Payment Date relating thereto.
"Participation Agreement" means, with respect to each
Indenture, the "Participation Agreement" referred to therein.
"Performing Equipment Note" means a Note issued pursuant to an
Indenture with respect to which no payment default has occurred and is
continuing (without giving effect to any Acceleration); provided,
however, that in the event of a bankruptcy proceeding under Title 11 of
the United States Code (the "Bankruptcy Code") under which United is a
debtor, any payment default existing during the 60-day period under
Section 1110(a)(2)(A) of the Bankruptcy Code (or such longer period as
may apply under Section 1110(b) of the Bankruptcy Code or as may apply
for the cure of such payment default under Section 1110(a)(2)(B) of the
Bankruptcy Code) shall not be taken into consideration until the
expiration of the applicable period.
"Performing Note Deficiency" means any time that less than 65%
of the then aggregate outstanding principal amount of all Notes are
Performing Equipment Notes.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company,
trust, trustee, unincorporated organization or government or any agency
or political subdivision thereof.
"Pool Balance" means, with respect to the Certificates of a
Class, as of any date, (i) the original aggregate face amount of the
Certificates of such Class less (ii) the aggregate amount of all
payments made in respect of the Certificates of such Class other than
payments made in respect of interest or Additional Payment thereon or
reimbursement of any costs and expenses in connection therewith. The
Pool Balance for
16
21
[2000-2 Intercreditor Agreement]
each Class of Certificates as of any Distribution Date shall be
computed after giving effect to the payment of principal, if any, on
the Notes held in the related Trust and the distribution thereof to be
made on such date.
"Proceeding" means any suit in equity, action at law or other
judicial or administrative proceeding.
"PTC Event of Default" means, with respect to the Trust
Agreement of any Class, the failure to pay within 10 Business Days of
the due date thereof: (i) the outstanding Pool Balance of the
applicable Class of Certificates on the Final Maturity Date for such
Class or (ii) interest due on such Certificates on any Distribution
Date (unless, in the case of the Class X-0, Xxxxx X-0, Class B
Certificates or Class C Certificates, the Subordination Agent shall
have made an Interest Drawing or a withdrawal from a Cash Collateral
Account with respect thereto in an amount sufficient to pay such
interest and shall have distributed such amount to the Trustee entitled
thereto).
"Rating Agencies" means, collectively, at any time, each
nationally recognized rating agency that shall have been requested to
rate the Class A-1 Certificates, the Class A-2 Certificates, the Class
B Certificates and the Class C Certificates and that shall then be
rating such Certificates. The initial Rating Agencies shall be Moody's
and Standard & Poor's.
"Ratings Confirmation" means, with respect to any action
proposed to be taken, a written confirmation from each of the Rating
Agencies that such action would not result in (i) a reduction of the
rating for the Class A-1 Certificates, the Class A-2 Certificates, the
Class B Certificates or the Class C Certificates below the then current
rating for such Class of Certificates or (ii) a withdrawal or
suspension of the rating of the Class A-1 Certificates, the Class A-2
Certificates, the Class B Certificates or the Class C Certificates.
"Regular Distribution Dates" means each April 1 and October 1,
commencing on April 1, 2001; provided, however, that, if any such day
shall not be a Business Day, the related distribution for each Class of
Certificates shall be made on the next Business Day without additional
interest accruing at the rate applicable to such Class of Certificates.
"Replacement Liquidity Facility" means, for any Liquidity
Facility, an irrevocable revolving credit agreement issued by a one or
more Replacement Liquidity Providers for the same term as the Liquidity
Facility being replaced in substantially the form of the replaced
Liquidity Facility, including reinstatement provisions, or in such
other form (which may include a letter of credit, surety bond,
financial insurance policy or guaranty) as shall permit the Rating
Agencies to confirm in writing their respective ratings then in effect
for the Class A-1 Certificates, the Class A-2 Certificates, the Class B
Certificates
17
22
[2000-2 Intercreditor Agreement]
and the Class C Certificates (before the downgrading of such ratings,
if any, as a result of the downgrading of the Liquidity Provider), in a
face amount (or in an aggregate face amount) equal to the Required
Amount for such Liquidity Facility and issued by a Replacement
Liquidity Provider. Without limitation of the form that a Replacement
Liquidity Facility otherwise may have pursuant to the preceding
sentence, a Replacement Liquidity Facility for any Class of
Certificates may have a stated expiration date earlier than 15 days
after the Final Maturity Date of such Class of Certificates so long as
such Replacement Liquidity Facility provides for a Non-Extension
Drawing as contemplated by Section 3.6(d) hereof.
"Replacement Liquidity Provider" means a Person having (i)
short-term unsecured debt ratings issued by each Rating Agency that are
equal to or higher than the Threshold Rating specified in clause (i) of
the definition of Threshold Rating or (ii) if such Person does not have
a short-term unsecured debt rating from each Rating Agency, long-term
unsecured debt ratings issued by each Rating Agency that are equal to
or higher than the Threshold Rating specified in clause (ii) of the
definition of Threshold Rating.
"Required Amount" means, with respect to each Liquidity
Facility, or the Cash Collateral Account, for any Class, for any day,
the sum of the aggregate amount of interest, calculated at the rate per
annum equal to the Stated Interest Rate for the related Class of
Certificates, that would be payable on such Class of Certificates on
each of the three successive Regular Distribution Dates following such
day or, if such day is a Regular Distribution Date, on such day and the
succeeding two Regular Distribution Dates, in each case calculated on
the basis of the Pool Balance of such Class of Certificates on such
date and without regard to expected future payments of principal on
such Class of Certificates.
"Responsible Officer" means, (i) in the case of any Liquidity
Provider that is a United States corporation, the Chairman of the Board
of Directors, the President, the Treasurer, the Secretary, or any Vice
President thereof, and in the case of any other Liquidity Provider, an
officer or other duly authorized person responsible for the
transactions contemplated by the Operative Agreements, (ii) in the case
of each Trustee and the Subordination Agent, any officer in the
Corporate Trust Department thereof or any other officer customarily
performing functions similar to those performed by the persons who at
the time shall be such officers or to whom any corporate trust matter
is referred because of his knowledge of and familiarity with a
particular subject and (iii) in any other case, an individual generally
authorized to execute and deliver contracts on behalf of such entity.
"Scheduled Payment" means, with respect to any Note, (i) any
payment of principal and interest on such Note (other than an Overdue
Scheduled Payment) due from the obligor thereon or (ii) in the case of
the Class A-1 Certificates, the Class A-2
18
23
[2000-2 Intercreditor Agreement]
Certificates, the Class B Certificates or the Class C Certificates, any
payment of interest on the corresponding Class of Certificates with
funds drawn under any Liquidity Facility or withdrawn from a Cash
Collateral Account, which payment represents the installment of
principal at the stated maturity of such installment of principal on
such Note, the payment of regularly scheduled interest accrued on the
unpaid principal amount of such Note, or both; provided, however, that
any payment of principal of, Additional Payment, if any, or interest
resulting from the redemption or purchase of any Note shall not
constitute a Scheduled Payment.
"Scheduled Payment Date" means, with respect to any Scheduled
Payment, the date on which such Scheduled Payment is scheduled to be
made.
"Section 2.4(b) Fraction" has the meaning assigned to such
term in Section 2.4(b).
"Series A-1 Notes" means the 7.032% Series A-1 Equipment Notes
issued pursuant to each Indenture by United, and authenticated by the
respective Indenture Trustee thereunder, and any such Equipment Notes
issued in exchange therefor or replacement thereof pursuant to the
terms of such Indenture.
"Series A-2 Notes" means the 7.186% Series A-2 Equipment Notes
issued pursuant to each Indenture by United, and authenticated by the
respective Indenture Trustee thereunder, and any such Equipment Notes
issued in exchange therefor or replacement thereof pursuant to the
terms of such Indenture.
"Series B Notes" means the 7.811% Series B Equipment Notes
issued pursuant to each Indenture by United, and authenticated by the
respective Indenture Trustee thereunder, and any such Equipment Notes
issued in exchange therefor or replacement thereof pursuant to the
terms of such Indenture.
"Series C Notes" means the 7.762% Series C Equipment Notes
issued pursuant to each Indenture by United and authenticated by the
respective Indenture Trustee thereunder, and any such Equipment Notes
issued in exchange therefor or replacement thereof pursuant to the
terms of such Indenture.
"Series D Notes" means equipment notes, if any, designated as
"Series D" and issued pursuant to any Indenture by United and
authenticated by the Indenture Trustee thereunder, and any such
equipment notes issued in exchange therefor or replacement thereof
pursuant to the terms of such Indenture.
"Special Distribution Date" means, with respect to any Special
Payment, the date chosen by the Subordination Agent pursuant to Section
2.4(a) for the distribution of such Special Payment in accordance with
this Agreement; provided, however, that, if any such
19
24
[2000-2 Intercreditor Agreement]
day shall not be a Business Day, the related distribution for each
Class of Certificates shall be made on the next Business Day with
additional interest accruing at the rate applicable to such Class of
Certificates.
"Special Payment" means any payment (other than a Scheduled
Payment) in respect of, or any proceeds of, any Note.
"Special Payments Account" means the Eligible Deposit Account
created pursuant to Section 2.2 as a sub-account to the Collection
Account.
"Standard & Poor's" means Standard & Poor's Ratings Services,
a Division of The XxXxxx-Xxxx Companies, Inc.
"State Street" has the meaning assigned to such term in the
recital of parties to this Agreement.
"Stated Amount" with respect to any Liquidity Facility, means
the Maximum Commitment (as defined in such Liquidity Facility) of the
applicable Liquidity Provider thereunder.
"Stated Interest Rate" means (i) with respect to the Class A-1
Certificates, 7.032% per annum, (ii) with respect to the Class A-2
Certificates, 7.186% per annum, (iii) with respect to the Class B
Certificates, 7.811% per annum, and (iv) with respect to the Class C
Certificates, 7.762% per annum.
"Subordination Agent" has the meaning assigned to such term in
the recital of parties to this Agreement.
"Subordination Agent Incumbency Certificate" has the meaning
assigned to such term in Section 2.5(a).
"Subordination Agent Representatives" has the meaning assigned
to such term in Section 2.5(a).
"Tax" and "Taxes" mean any and all taxes, fees, levies,
duties, tariffs, imposts and other charges of any kind (together with
any and all interest, penalties, loss, damage, liability, expense,
additions to tax and additional amounts or costs incurred or imposed
with respect thereto) imposed or otherwise assessed by the United
States or by any state, local or foreign government (or any subdivision
or agency thereof) or other taxing authority, including, without
limitation: taxes or other charges on or with respect to income,
franchises, windfall or other profits, gross receipts, property, sales,
use, capital stock, payroll, employment, social security, workers'
compensation, unemployment
20
25
[2000-2 Intercreditor Agreement]
compensation or net worth and similar charges; taxes or other charges
in the nature of excise, withholding, ad valorem, stamp, transfer,
value added, taxes on goods and services, gains taxes, license,
registration and documentation fees, customs duties, tariffs and
similar charges.
"Termination Notice" with respect to any Liquidity Facility
has the meaning assigned to such term in such Liquidity Facility.
"Threshold Rating" means, (A) with respect to the Class A-1
Liquidity Provider, Class A-2 Liquidity Provider or Class B Liquidity
Provider, (i) the short-term unsecured debt rating of "P-1" by Xxxxx'x
and "A-1+" by Standard & Poor's and (ii) for any Person which does not
have a short-term unsecured debt rating from either or both of the
Rating Agencies, the long-term unsecured debt rating of "Aa3" by
Xxxxx'x and "AA-" by Standard & Poor's; and (B) with respect to the
Class C Liquidity Provider, (i) the short-term unsecured debt rating of
"P-1" by Xxxxx'x and "A-1" by Standard & Poor's and (ii) for any Person
who does not have a short-term unsecured debt rating from either or
both of the Rating Agencies, the long-term unsecured debt rating of
"A3" by Xxxxx'x and "A-" by Standard & Poor's.
"Treasury Regulations" means regulations, including proposed
or temporary regulations, promulgated under the Code. References herein
to specific provisions of proposed or temporary regulations shall
include analogous provisions of final Treasury Regulations or other
successor Treasury Regulations.
"Triggering Event" means (x) the occurrence of an Indenture
Default under all of the Indentures resulting in a PTC Event of Default
with respect to the most senior Class of Certificates then Outstanding,
(y) the Acceleration of all of the outstanding Notes or (z) the
occurrence of a United Bankruptcy Event.
"Trust" means any of the Class A-1 Trust, the Class A-2 Trust,
the Class B Trust or the Class C Trust.
"Trust Accounts" has the meaning assigned to such term in
Section 2.2(a).
"Trust Agreement" means any of the Class A-1 Trust Agreement,
the Class A-2 Trust Agreement, the Class B Trust Agreement or the Class
C Trust Agreement.
"Trustee" means any of the Class A-1 Trustee, the Class A-2
Trustee, the Class B Trustee or the Class C Trustee.
"Trustee Incumbency Certificate" has the meaning assigned to
such term in Section 2.5(b).
21
26
[2000-2 Intercreditor Agreement]
"Trustee Representatives" has the meaning assigned to such
term in Section 2.5(b).
"Trust Supplement" means an agreement supplemental to the
Basic Pass Through Agreement pursuant to which (i) a separate Trust is
created for the benefit of the Holders of the Certificates of a class,
(ii) the issuance of the Certificates of such class representing
fractional undivided interests in such Trust is authorized and (iii)
the terms of the Certificates of such class are established.
"U.C.C." means the Uniform Commercial Code in effect in the
applicable jurisdiction.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of December 7, 2000, between the Underwriters and United,
relating to the purchase of the Class A-1 Certificates, the Class A-2
Certificates, the Class B Certificates and the Class C Certificates by
the Underwriters, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"Underwriters" means the several underwriters listed as such
in the Underwriting Agreement.
"United" means United Air Lines, Inc., a Delaware corporation,
and its successors and assigns.
"United Bankruptcy Event" means the occurrence and
continuation of any of the following:
(i) United shall consent to the appointment of or the
taking of possession by a receiver, trustee or liquidator of itself or
of a substantial part of its property, or United shall admit in writing
its inability to pay its debts generally as they come due, or does not
pay its debts generally as they become due or shall make a general
assignment for the benefit of creditors, or United shall file a
voluntary petition in bankruptcy or a voluntary petition or an answer
seeking reorganization, liquidation or other relief in a case under any
bankruptcy laws or other insolvency laws (as in effect at such time) or
an answer admitting the material allegations of a petition filed
against United in any such case, or United shall seek relief by
voluntary petition, answer or consent, under the provisions of any
other bankruptcy or other similar law providing for the reorganization
or winding-up of corporations (as in effect at such time) or United
shall seek an agreement, composition, extension or adjustment with its
creditors under such laws, or United's board of directors shall adopt a
resolution authorizing corporate action in furtherance of any of the
foregoing; or
22
27
[2000-2 Intercreditor Agreement]
(ii) an order, judgment or decree shall be entered by
any court of competent jurisdiction appointing, without the consent of
United, a receiver, trustee or liquidator of United or of any
substantial part of its property, or any substantial part of the
property of United shall be sequestered, or granting any other relief
in respect of United as a debtor under any bankruptcy laws or other
insolvency laws (as in effect at such time), and any such order,
judgment or decree of appointment or sequestration shall remain in
force undismissed, unstayed and unvacated for a period of 90 days after
the date of entry thereof; and
(iii) a petition against United in a case under any
bankruptcy laws or other insolvency laws (as in effect at such time) is
filed and not withdrawn or dismissed within 90 days thereafter, or if,
under the provisions of any law providing for reorganization or
winding-up of corporations which may apply to United, any court of
competent jurisdiction assumes jurisdiction, custody or control of
United or of any substantial part of its property and such
jurisdiction, custody or control remains in force unrelinquished,
unstayed and unterminated for a period of 90 days.
"United Provisions" has the meaning assigned to such term in
Section 9.1(a).
"Written Notice" means, from (i) the Trustee or any Liquidity
Provider, a written instrument executed by the Designated
Representative of such Person, and (ii) the Subordination Agent, a
written instrument executed by a Person designated in the Officer's
Certificate of the Subordination Agent delivered on the Closing Date.
An invoice delivered by a Liquidity Provider pursuant to Section 3.1 in
accordance with its normal invoicing procedures shall constitute
Written Notice under such Section.
ARTICLE II
TRUST ACCOUNTS; CONTROLLING PARTY
2.1 Agreement to Terms of Subordination; Payments from Monies Received
Only.
(a) Each Trustee hereby acknowledges and agrees to the terms
of subordination and distribution set forth in this Agreement in respect of each
Class of Certificates and agrees to enforce such provisions and cause all
payments in respect of the Notes and the Liquidity Facilities to be applied in
accordance with the terms of this Agreement. In addition, each Trustee hereby
agrees to cause the Notes purchased by the related Trust to be registered in the
name of the Subordination Agent or its nominee, as agent and trustee for such
Trustee, to be held in trust by the Subordination Agent solely for the purpose
of facilitating the enforcement of the subordination and other provisions of
this Agreement.
23
28
[2000-2 Intercreditor Agreement]
(b) Except as otherwise expressly provided in the next
sentence of this Section 2.1, all payments to be made by the Subordination Agent
hereunder shall be made only from amounts received by it that constitute
Scheduled Payments, Special Payments, payments under Section 5(b) of the
Participation Agreement, payments under Section 4(j) of the Note Purchase
Agreement, payments under Section 2.12 of the Indentures or payments under any
Liquidity Facility, and only to the extent that the Subordination Agent shall
have received sufficient income or proceeds therefrom to enable it to make such
payments in accordance with the terms hereof. Each of the Trustees and the
Subordination Agent hereby agrees and, as provided in each Trust Agreement, each
Certificateholder, by its acceptance of a Certificate, and each Liquidity
Provider, by entering into the Liquidity Facility to which it is a party, has
agreed to look solely to such amounts to the extent available for distribution
to it as provided in this Agreement and that none of the Trustees, the Indenture
Trustees, nor the Subordination Agent is personally liable to any of them for
any amounts payable or any liability under this Agreement, any Trust Agreement,
any Liquidity Facility or such Certificate, except (in the case of the
Subordination Agent) as expressly provided herein or (in the case of the
Trustee) as expressly provided in each Trust Agreement or (in the case of the
Indenture Trustees) as expressly provided in any Operative Agreement.
2.2 Trust Accounts. (a) Upon the execution of this Agreement, the
Subordination Agent shall establish and maintain in its name (i) the Collection
Account as an Eligible Deposit Account, bearing a designation clearly indicating
that the funds deposited therein are held in trust for the benefit of the
Trustees, the Certificateholders and the Liquidity Providers and (ii) as a
sub-account in the Collection Account, the Special Payments Account as an
Eligible Deposit Account, bearing a designation clearly indicating that the
funds deposited therein are held in trust for the benefit of the Trustees, the
Certificateholders and the Liquidity Providers. The Subordination Agent shall
establish and maintain the Cash Collateral Accounts pursuant to and under the
circumstances set forth in Section 3.6(f). Upon such establishment and
maintenance under Section 3.6(f), the Cash Collateral Accounts shall, together
with the Collection Account, constitute the "Trust Accounts" hereunder. Each
such Trust Account shall meet the requirements of an "Eligible Deposit Account."
(b) Funds on deposit in the Trust Accounts shall be invested
and reinvested by the Subordination Agent in Eligible Investments selected by
the Subordination Agent if such investments are reasonably available and have
maturities no later than the Business Day preceding the Regular Distribution
Date or the date of the related distribution pursuant to Section 2.4, as the
case may be, next following the date of such investment; provided, however, that
upon the occurrence and during the continuation of a Triggering Event, the
Subordination Agent shall invest and reinvest such amounts in accordance with
the written instructions of the Controlling Party; and provided, further, that
following the making of a Non-Extension Drawing or a Downgrade Drawing under any
Liquidity Facility, the Subordination Agent shall invest and reinvest the
amounts in the Cash Collateral Account with respect to such Liquidity Facility
at the direction of the Liquidity Provider funding such Drawing. Unless
otherwise expressly provided
24
29
[2000-2 Intercreditor Agreement]
in this Agreement (including Section 3.6(f)), any Investment Earnings shall be
deposited in the Collection Account when received by the Subordination Agent and
shall be applied by the Subordination Agent in the same manner as the principal
amount of such investment is to be applied and any losses shall be charged
against the principal amount invested, in each case net of the Subordination
Agent's reasonable fees and expenses in making such investments. The
Subordination Agent shall not be liable for any loss resulting from any
investment, reinvestment or liquidation required to be made under this Agreement
other than by reason of its willful misconduct or gross negligence. Eligible
Investments and any other investment required to be made hereunder shall be held
to their maturities except that any such investment may be sold (without regard
to its maturity) by the Subordination Agent without instructions whenever such
sale is necessary to make a distribution required under this Agreement.
Uninvested funds held hereunder shall not earn or accrue interest.
(c) The Subordination Agent shall possess all right, title and
interest in all funds on deposit from time to time in the Trust Accounts and in
all proceeds thereof (including all income thereon, except as otherwise
expressly provided herein with respect to Investment Earnings). The Trust
Accounts shall be held in trust by the Subordination Agent under the sole
dominion and control of the Subordination Agent for the benefit of the Trustees,
the Certificateholders and the Liquidity Providers, as the case may be. The
Subordination Agent shall maintain "control" of the Trust Accounts within the
meaning of Section 8-106 of the U.C.C. If, at any time, any of the Trust
Accounts ceases to be an Eligible Deposit Account, the Subordination Agent shall
within 10 Business Days (or such longer period, not to exceed 30 calendar days,
to which each Rating Agency may consent) establish a new Collection Account,
Special Payments Account or Cash Collateral Account, as the case may be, as an
Eligible Deposit Account and shall transfer any cash and/or any investments to
such new Collection Account, Special Payments Account or Cash Collateral
Account, as the case may be. So long as State Street is an Eligible Institution,
the Trust Accounts shall be maintained with it as Eligible Deposit Accounts.
2.3 Deposits to the Collection Account and Special Payments Account.
(a) The Subordination Agent shall, upon receipt thereof, deposit in the
Collection Account all Scheduled Payments received by it.
(b) The Subordination Agent shall, on each date when one or
more Special Payments are made to the Subordination Agent as holder of the
Notes, deposit in the Special Payments Account the aggregate amount of such
Special Payments.
2.4 Distributions of Special Payments. (a) Notice of Special Payment.
Upon receipt by the Subordination Agent, as registered holder of the Notes, of
any notice of a Special Payment (or, in the absence of any such notice, upon
receipt by the Subordination Agent of a Special Payment), the Subordination
Agent shall promptly give notice thereof to the Trustee and the Liquidity
Providers. The Subordination Agent shall promptly calculate the amount of the
25
30
[2000-2 Intercreditor Agreement]
redemption or purchase of the Notes or the amount of any Overdue Scheduled
Payment, as the case may be, comprising such Special Payment under the
applicable Indenture or Indentures and shall promptly send to the Trustee a
Written Notice of such amount. Such Written Notice shall also set the
distribution date for such Special Payment (a "Special Distribution Date"),
which shall be the first Business Day which follows the later to occur of (x)
the 20th day after the date of such Written Notice or (y) the date the
Subordination Agent has received or expects to receive such Special Payment.
(b) Redemptions and Purchases of All Notes. So long as no
Triggering Event shall have occurred (whether or not continuing), the
Subordination Agent shall make distributions pursuant to this Section 2.4(b) of
amounts on deposit in the Special Payments Account on account of the redemption,
purchase or refinancing (including a purchase resulting from a sale of the Notes
permitted by Article IV) of all of the Notes issued pursuant to an Indenture on
the Special Distribution Date for such Special Payment in the following order of
priority:
first, such amount as shall be required to pay (A) all accrued
and unpaid Liquidity Expenses then in arrears plus (B) the product of
(x) the aggregate amount of all accrued and unpaid Liquidity Expenses
not in arrears to such Special Payment Date multiplied by (y) a
fraction, the numerator of which is the aggregate outstanding principal
amount of Notes being redeemed (either in whole or in part), purchased
or refinanced on such Special Distribution Date and the denominator of
which is the aggregate outstanding principal amount of all Notes (the
"Section 2.4(b) Fraction"), shall be distributed to the Liquidity
Providers pro rata on the basis of the amount of Liquidity Expenses
owed to each Liquidity Provider;
second, such amount as shall be required to pay (A) all
accrued and unpaid interest then in arrears on all Liquidity
Obligations (including interest accrued and unpaid on any Advance (as
defined in any Liquidity Facility)) plus (B) the product of (x) the
aggregate amount of all accrued and unpaid interest on all Liquidity
Obligations not in arrears to such Special Distribution Date (at the
rate provided in the applicable Liquidity Facility) multiplied by (y)
the Section 2.4(b) Fraction, shall be distributed to the Liquidity
Providers pro rata on the basis of the amount of Liquidity Obligations
owed to each Liquidity Provider;
third, such amount as shall be required (A) if any Cash
Collateral Account relating to a Liquidity Facility had been previously
funded as provided in Section 3.6(f), to fund such Cash Collateral
Account up to its Required Amount shall be deposited in such Cash
Collateral Account, (B) if any Liquidity Facility shall become a
Downgraded Facility or a Non-Extended Facility at a time when
unreimbursed Interest Drawings under such Liquidity Facility have
reduced the Available Amount thereunder to zero, to fund the relevant
Cash Collateral Account up to its Required Amount shall be deposited in
such
26
31
[2000-2 Intercreditor Agreement]
Cash Collateral Account and (C) if, with respect to any particular
Liquidity Facility, neither subclause (A) nor subclause (B) of this
clause third are applicable, to pay or reimburse the Liquidity Provider
in respect of such Liquidity Facility, in each case in an amount equal
to the amount of any unreimbursed Interest Drawings under the Liquidity
Facilities shall be distributed to the Liquidity Providers, pro rata on
the basis of the amounts of all such deficiencies and/or unreimbursed
Interest Drawings;
fourth, if, with respect to any particular Liquidity Facility,
either subclause (A) or (B) of clause third above is applicable, then
the Liquidity Provider with respect to such Liquidity Facility shall be
paid the excess of (x) the aggregate outstanding amount of unreimbursed
Advances (whether or not then due) under such Liquidity Facility over
(y) the Required Amount for the relevant Class, pro rata on the basis
of such amounts in respect of each Liquidity Provider;
fifth, such amount as shall be required to pay in full
Expected Distributions to the holders of Class A-1 Certificates on such
Special Distribution Date shall be distributed to the Class A-1 Trustee
and such amount as shall be required to pay in full Expected
Distributions to the holders of Class A-2 Certificates on such Special
Distribution Date shall be distributed to the Class A-2 Trustee, pro
rata on the basis of such amounts in respect of each such Class of
Certificates;
sixth, such amount as shall be required to pay in full
Expected Distributions to the holders of Class B Certificates on such
Special Distribution Date shall be distributed to the Class B Trustee;
seventh, such amount as shall be required to pay in full
Expected Distributions to the holders of Class C Certificates on such
Special Distribution Date shall be distributed to the Class C Trustee;
and
eighth, the balance, if any, of such Special Payment shall be
distributed to the Collection Account.
For the purposes of this Section 2.4(b), clause (x) of the definition of
"Expected Distributions" shall be deemed to read as follows: "(x) accrued, due
and unpaid interest on such Certificates together with (without duplication)
accrued and unpaid interest on a portion of such Certificates equal to the
outstanding principal amount of the Notes held in such Trust and being redeemed,
purchased or prepaid (immediately prior to such redemption, purchase or
prepayment)".
(c) Other Special Payments. Any amounts on deposit in the
Special Payments Account other than in respect of amounts to be distributed
pursuant to Section 2.4(b) or (e) shall be distributed on the Special
Distribution Date therefor in accordance with Article III.
27
32
[2000-2 Intercreditor Agreement]
(d) Investment of Amounts in Special Payments Account. Any
amounts on deposit in the Special Payments Account prior to the distribution
thereof pursuant to Section 2.4(b), (c) or (e) shall be invested in accordance
with Section 2.2(b). Investment Earnings on such investments shall be
distributed in accordance with Section 2.4(b), (c) or (e), as the case may be.
(e) Certain Payments. Except as otherwise provided in Sections
2.4(b), 3.2 and 3.3, the Subordination Agent shall distribute promptly upon
receipt thereof (i) any indemnity payment received by it from United in respect
of any Trustee or any Liquidity Provider (collectively, the "Payees") and (ii)
any compensation received by it from United under any Operative Agreement in
respect of any Payee, directly to the Payee entitled thereto.
2.5 Designated Representatives. (a) With the delivery of this
Agreement, the Subordination Agent shall furnish to each Liquidity Provider and
each Trustee, and from time to time thereafter may furnish to each Liquidity
Provider and each Trustee, at the Subordination Agent's discretion, or upon any
Liquidity Provider's or Trustee's request (which request shall not be made more
than one time in any 12-month period), a certificate (a "Subordination Agent
Incumbency Certificate") of a Responsible Officer of the Subordination Agent
certifying as to the incumbency and specimen signatures of the officers of the
Subordination Agent and the attorney-in-fact and agents of the Subordination
Agent (the "Subordination Agent Representatives") authorized to give Written
Notices on behalf of the Subordination Agent hereunder. Until each Liquidity
Provider and Trustee receives a subsequent Subordination Agent Incumbency
Certificate, it shall be entitled to rely on the last Subordination Agent
Incumbency Certificate delivered to it hereunder.
(b) With the delivery of this Agreement, each Trustee shall
furnish to the Subordination Agent, and from time to time thereafter may furnish
to the Subordination Agent, at such Trustee's discretion, or upon the
Subordination Agent's request (which request shall not be made more than one
time in any 12-month period), a certificate (a "Trustee Incumbency Certificate")
of a Responsible Officer of such Trustee certifying as to the incumbency and
specimen signatures of the officers of such Trustee and the attorney-in-fact and
agents of such Trustee (the "Trustee Representatives") authorized to give
Written Notices on behalf of the Trustee hereunder. Until the Subordination
Agent receives a subsequent Trustee Incumbency Certificate, it shall be entitled
to rely on the last Trustee Incumbency Certificate delivered to it hereunder.
(c) With the delivery of this Agreement, each Liquidity
Provider shall furnish to the Subordination Agent, and from time to time
thereafter may furnish to the Subordination Agent, at such Liquidity Provider's
discretion, or upon the Subordination Agent's request (which request shall not
be made more than one time in any 12-month period), a certificate (an "LP
Incumbency Certificate") of any Responsible Officer of such Liquidity Provider
certifying as to the incumbency and specimen signatures of any officer,
attorney-in-fact, agent or other
28
33
[2000-2 Intercreditor Agreement]
designated representative of such Liquidity Provider (the "LP Representatives"
and, together with the Subordination Agent Representatives and the Trustee
Representatives, the "Designated Representatives") authorized to give Written
Notices on behalf of such Liquidity Provider hereunder. Until the Subordination
Agent receives a subsequent LP Incumbency Certificate, it shall be entitled to
rely on the last LP Incumbency Certificate delivered to it hereunder.
2.6 Controlling Party. (a) The Trustees and the Liquidity Providers
hereby agree that, with respect to any Indenture at any given time, the
Indenture Trustee thereunder shall be directed: (i) in taking, or refraining
from taking, any action under such Indenture or the Notes issued thereunder, so
long as no Indenture Default has occurred and is continuing thereunder, by the
holders of at least a majority of the outstanding principal amount of such Notes
provided that, for so long as the Subordination Agent is the registered holder
of the Notes, the Subordination Agent shall act with respect to this clause (i)
in accordance with the direction of the Trustees in the case of each such
Trustee, with respect to the Notes issued under such Indenture and held as Trust
Property of such Trust constituting, in the aggregate, directions with respect
to such principal amount of Notes; and (ii) after the occurrence and during the
continuation of an Indenture Default thereunder, in taking, or refraining from
taking, any action permitted under such Indenture or with respect to such Notes,
including exercising remedies thereunder (including Accelerating the Notes
issued thereunder, or foreclosing the Lien on the Aircraft securing such Notes),
by the Controlling Party.
(b) The Person who shall be the "Controlling Party" with
respect to any Indenture shall be: (v) initially, the Class A-1 Trustee or the
Class A-2 Trustee, whichever represents the Class with the larger Pool Balance
of Certificates Outstanding at the time such Indenture Default occurs (whether
or not any other Indenture Default shall thereafter occur so long as such
initial Indenture Default shall continue); (w) upon payment of Final
Distributions to the holders of the Certificates of such larger Class, the other
of the Class A-1 Trustee or the Class A-2 Trustee; (x) upon payment of Final
Distributions to the holders of Class A-1 Certificates and Class A-2
Certificates, the Class B Trustee; and (y) upon payment of Final Distributions
to the holders of Class B Certificates, the Class C Trustee. For purposes of
giving effect to the foregoing, the Trustees (other than as the Controlling
Party) irrevocably agree (and the Certificateholders (other than the
Certificateholders represented by the Controlling Party) shall be deemed to
agree by virtue of their purchase of Certificates) that the Subordination Agent,
as record holder of the Notes, shall exercise its voting rights in respect of
the Notes as directed by the Controlling Party and any vote so exercised shall
be binding upon the Trustees and all Certificateholders.
The Subordination Agent shall give written notice to all of
the other parties to this Agreement promptly upon a change in the identity of
the Controlling Party. Each of the parties hereto agrees that it shall not
exercise any of the rights of the Controlling Party at such time as it is not
the Controlling Party hereunder; provided, however, that nothing herein
contained shall
29
34
[2000-2 Intercreditor Agreement]
prevent or prohibit any Non-Controlling Party from exercising such rights as
shall be specifically granted to such Non-Controlling Party hereunder and under
the other Operative Agreements.
(c) Notwithstanding the foregoing, at any time after 18 months
beginning on the earliest to occur of (i) the date on which the entire Available
Amount under any Liquidity Facility shall have been drawn (for any reason other
than a Downgrade Drawing or a Non- Extension Drawing) and remain unreimbursed,
(ii) the date on which the entire amount of any Downgrade Drawing or
Non-Extension Drawing shall have become and remain "Applied Downgrade Advances"
or "Applied Non-Extension Advances", as the case may be, under and as defined in
such Liquidity Facility and (iii) the date on which all Notes shall have been
Accelerated, the Liquidity Provider with the highest outstanding amount of
Liquidity Obligations owed to it shall have the right to elect, by Written
Notice to the Subordination Agent and the Trustee, that such Liquidity Provider
will become the Controlling Party hereunder with respect to any Indenture at any
time from and including the last day of such 18-month period.
(d) The exercise of remedies by the Controlling Party under
this Agreement shall be expressly limited by Section 4.1(a)(ii).
(e) The Controlling Party shall not be entitled to require or
obligate any Non- Controlling Party to provide funds necessary to exercise any
right or remedy hereunder.
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
AMOUNTS RECEIVED
3.1 Written Notice of Distribution. (a) No later than 3:00 P.M. (New
York City time) on the Business Day preceding each Distribution Date, each of
the following Persons shall deliver to the Subordination Agent a Written Notice
setting forth the following information as at the close of business on such
Business Day:
(i) With respect to the Class A-1 Certificates and the Class
A-2 Certificates, if any are Outstanding, the Class A-1 Trustee and the
Class A-2 Trustee, respectively, shall separately set forth the amounts
to be paid in accordance with clause fifth of Section 2.4(b) or 3.2, as
the case may be (without giving effect to the pro rata sharing
therein);
(ii) With respect to the Class B Certificates, if any are
Outstanding, the Class B Trustee shall separately set forth the amounts
to be paid in accordance with clause sixth of Section 2.4(b) or 3.2, as
the case may be;
30
35
[2000-2 Intercreditor Agreement]
(iii) With respect to the Class C Certificates, if any are
Outstanding, the Class C Trustee shall separately set forth the amounts
to be paid in accordance with clause seventh of Section 2.4(b) or 3.2,
as the case may be;
(iv) With respect to each Liquidity Facility, the Liquidity
Provider thereunder shall separately set forth the amounts to be paid
in accordance with clauses first, second, third and fourth of Section
2.4(b) or 3.2, as the case may be; and
(v) Each Trustee shall set forth the amounts to be paid in
accordance with clause eighth of Section 3.2.
The notices required under this Section 3.1(a) may be in the form of a schedule
or similar document provided to the Subordination Agent by the parties
referenced therein or by any one of them, which schedule or similar document may
state that, unless there has been a prepayment, purchase or redemption of the
Certificates, such schedule or similar document is to remain in effect until any
substitute notice or amendment shall be given to the Subordination Agent by the
party providing such notice.
(b) Following the occurrence of a Triggering Event, the
Subordination Agent shall request the following information from the following
Persons, and each of the following Persons shall, upon the request of the
Subordination Agent, deliver a Written Notice to the Subordination Agent setting
forth for such Person the following information:
(i) With respect to the Class A-1 Certificates and the Class
A-2 Certificates, if any are Outstanding, the Class A-1 Trustee and
the Class A-2 Trustee, respectively, shall separately set forth the
amounts to be paid in accordance with clauses first (to reimburse
payments made by the Class A-1 Certificateholders and the Class A-2
Certificateholders, respectively, pursuant to subclause (iii) of
clause first of Section 3.3) and seventh of Section 3.3 (without
giving effect to the pro rata sharing therein);
(ii) With respect to the Class B Certificates, if any are
Outstanding, the Class B Trustee shall separately set forth the amounts
to be paid in accordance with clauses first (to reimburse payments made
by the Class B Certificateholders pursuant to subclause (iii) of clause
first of Section 3.3) and eighth of Section 3.3;
(iii) With respect to the Class C Certificates, if any are
Outstanding, the Class C Trustee shall separately set forth the amounts
to be paid in accordance with clauses first (to reimburse payments made
by the Class C Certificateholders pursuant to subclause (iii) of clause
first of Section 3.3) and ninth of Section 3.3;
31
36
[2000-2 Intercreditor Agreement]
(iv) With respect to each Liquidity Facility, the Liquidity
Provider thereunder shall separately set forth the amounts to be paid
to it in accordance with subclause (iii) of clause first of Section 3.3
and clauses second, third, fourth and fifth of Section 3.3; and
(v) Each Trustee shall set forth the amounts to be paid in
accordance with clause sixth of Section 3.3.
(c) At such time as a Trustee or a Liquidity Provider shall
have received all amounts owing to it (and, in the case of the Trustee, the
Certificateholders for which it is acting) pursuant to Section 2.4, 3.2 or 3.3,
as applicable, and, in the case of a Liquidity Provider, its commitment under
the related Liquidity Facility shall have terminated or expired, such Person
shall, by a Written Notice, so inform the Subordination Agent and each other
party to this Agreement.
(d) As provided in Section 6.5, the Subordination Agent shall
be fully protected in relying on any of the information set forth in a Written
Notice provided by any Trustee or any Liquidity Provider pursuant to Sections
3.1(a) through (c) above and shall have no independent obligation to verify,
calculate or recalculate any amount set forth in any Written Notice delivered in
accordance with such paragraphs.
(e) Any Written Notice delivered by a Trustee or a Liquidity
Provider, as applicable, pursuant to Section 3.1(a), 3.1(b) or 3.1(c), if made
prior to 10:00 A.M. (New York City time) on any Business Day shall be effective
on the date delivered (or if delivered later on a Business Day or if delivered
on a day which is not a Business Day shall be effective as of the next Business
Day). Subject to the terms of this Agreement, the Subordination Agent shall as
promptly as practicable comply with any such instructions; provided, however,
that any transfer of funds pursuant to any instruction received after 10:00 A.M.
(New York City time) on any Business Day may be made on the next succeeding
Business Day.
(f) If the Subordination Agent shall not receive from any
Person any information set forth in Section 3.1(a) or (b) above which is
required to enable the Subordination Agent to make a distribution to such Person
pursuant to Sections 2.4(b), 3.2 or 3.3, the Subordination Agent shall request
such information and, failing to receive any such information, the Subordination
Agent shall not make such distribution(s) to such Person. In such event, the
Subordination Agent shall make distributions pursuant to clauses first through
eighth of Section 2.4(b), clauses first through ninth of Section 3.2 and clauses
first through ninth of Section 3.3 to the extent it shall have sufficient
information to enable it to make such distributions, and shall continue to hold
any funds remaining, after making such distributions, until the Subordination
Agent shall receive all necessary information to enable it to distribute any
funds so withheld.
32
37
[2000-2 Intercreditor Agreement]
(g) On such dates (but not more frequently than monthly) as
any Liquidity Provider or any Trustee shall request, but in any event
automatically at the end of each calendar quarter, the Subordination Agent shall
send to such party a written statement reflecting all amounts on deposit with
the Subordination Agent pursuant to Section 3.1(f).
3.2 Distribution of Amounts on Deposit in the Collection Account.
Except as otherwise provided in Sections 2.4, 3.1(f), 3.3, 3.4 and 3.6(b),
amounts on deposit in the Collection Account (or, in the case of any amount
described in Section 2.4(c), on deposit in the Special Payments Account) shall
be promptly distributed on each Regular Distribution Date (or in the case of any
amount described in Section 2.4(c), on the Special Distribution Date thereof) in
the following order of priority and in accordance with the information provided
to the Subordination Agent pursuant to Section 3.1(a):
first, such amount as shall be required to pay all accrued and
unpaid Liquidity Expenses owed to each Liquidity Provider shall be
distributed to the Liquidity Providers pro rata on the basis of the
amount of Liquidity Expenses owed to each Liquidity Provider;
second, such amount as shall be required to pay in full the
aggregate amount of interest accrued on all Liquidity Obligations (at
the rate provided in the applicable Liquidity Facility) shall be
distributed to the Liquidity Providers pro rata on the basis of the
amount of Liquidity Obligations owed to each Liquidity Provider;
third, such amount as shall be required (A) if any Cash
Collateral Account relating to a Liquidity Facility had been previously
funded as provided in Section 3.6(f), to fund such Cash Collateral
Account up to its Required Amount shall be deposited in such Cash
Collateral Account, (B) if any Liquidity Facility shall become a
Downgraded Facility or a Non-Extended Facility at a time when
unreimbursed Interest Drawings under such Liquidity Facility have
reduced the Available Amount thereunder to zero, to fund the relevant
Cash Collateral Account up to its Required Amount shall be deposited in
such Cash Collateral Account and (C) if, with respect to any particular
Liquidity Facility, neither subclause (A) nor subclause (B) of this
clause third are applicable, to pay or reimburse the Liquidity Provider
in respect of such Liquidity Facility, in each case in an amount equal
to the amount of all Liquidity Obligations then due under such
Liquidity Facility (other than amounts payable pursuant to clause first
or second of this Section 3.2) shall be distributed to such Liquidity
Provider, pro rata on the basis of the amounts of all such unreimbursed
Liquidity Obligations and/or deficiencies in respect of each Liquidity
Provider;
fourth, if, with respect to any particular Liquidity Facility,
either subclause (A) or (B) of clause third above is applicable, then
the Liquidity Provider with respect to such Liquidity Facility shall be
paid the excess of (x) the aggregate outstanding amount of
33
38
[2000-2 Intercreditor Agreement]
unreimbursed Advances (whether or not then due) under such Liquidity
Facility over (y) the Required Amount for the relevant Class, pro rata
on the basis of such amounts in respect of each Liquidity Provider;
fifth, such amount as shall be required to pay in full
Expected Distributions to the holders of the Class A-1 Certificates on
such Distribution Date shall be distributed to the Class A-1 Trustee
and such amount as shall be required to pay in full Expected
Distributions to the holders of the Class A-2 Certificates on such
Distribution Date shall be distributed to the Class A-2 Trustee, pro
rata on the basis of such amounts in respect of each such Class of
Certificates;
sixth, such amount as shall be required to pay in full
Expected Distributions to the holders of the Class B Certificates on
such Distribution Date shall be distributed to the Class B Trustee;
seventh, such amount as shall be required to pay in full
Expected Distributions to the holders of the Class C Certificates on
such Distribution Date shall be distributed to the Class C Trustee;
eighth, such amount as shall be required to pay in full the
aggregate unpaid amount of fees and expenses payable as of such
Distribution Date to the Subordination Agent and the Trustees pursuant
to the terms of this Agreement and the Trust Agreements, as the case
may be, shall be distributed to the Subordination Agent and the
Trustees; and
ninth, the balance, if any, of any such payment remaining
thereafter shall be distributed to the Collection Account.
3.3 Distribution of Amounts on Deposit Following a Triggering Event.
Except as otherwise provided in Sections 3.1(f) and 3.6(b), upon the occurrence
of a Triggering Event and at all times thereafter, all funds in the Collection
Account (including the Special Payments Account) shall be promptly distributed
by the Subordination Agent in the following order of priority:
first, such amount as shall be required to reimburse (i) the
Subordination Agent for any out-of-pocket costs and expenses actually
incurred by it (to the extent not previously reimbursed) in the
protection of, or the realization of the value of, the Notes or any
Indenture Estate, shall be applied by the Subordination Agent in
reimbursement of such costs and expenses, (ii) each Trustee for any
amounts of the nature described in clause (i) above actually incurred
by it under the applicable Trust Agreement (to the extent not
previously reimbursed), shall be distributed to the Trustee and (iii)
any Liquidity Provider or Certificateholder for payments, if any, made
by it to the
34
39
[2000-2 Intercreditor Agreement]
Subordination Agent or any Trustee in respect of amounts described in
clause (i) above, shall be distributed to such Liquidity Provider or to
the Trustee for the account of such Certificateholder, in each such
case, pro rata on the basis of all amounts described in clauses (i)
through (iii) above;
second, such amount remaining as shall be required to pay all
accrued and unpaid Liquidity Expenses shall be distributed to each
Liquidity Provider pro rata on the basis of the amount of Liquidity
Expenses owed to each Liquidity Provider;
third, such amount remaining as shall be required to pay
accrued and unpaid interest on the Liquidity Obligations as provided in
the Liquidity Facilities shall be distributed to each Liquidity
Provider pro rata on the basis of the amount of such accrued and unpaid
interest owed to each Liquidity Provider;
fourth, such amount as shall be required (A) if any Cash
Collateral Account relating to a Liquidity Facility had been previously
funded as provided in Section 3.6(f) unless (i) a Performing Note
Deficiency exists and a Liquidity Event of Default shall have occurred
and be continuing with respect to the relevant Liquidity Facility or
(ii) a Final Drawing shall have occurred with respect to the relevant
Liquidity Facility, to fund such Cash Collateral Account up to its
Required Amount (less the amount of any repayments of Interest Drawings
under such Liquidity Facility while subclause (A)(i) above is
applicable) shall be deposited in such Cash Collateral Account, (B) if
any Liquidity Facility shall become a Downgraded Facility or a
Non-Extended Facility at a time when unreimbursed Interest Drawings
under such Liquidity Facility have reduced the Available Amount
thereunder to zero unless (i) a Performing Note Deficiency exists and a
Liquidity Event of Default shall have occurred and be continuing with
respect to the relevant Liquidity Facility or (ii) a Final Drawing
shall have occurred with respect to the relevant Liquidity Facility, to
fund the relevant Cash Collateral Account up to its Required Amount
(less the amount of any repayments of Interest Drawings under such
Liquidity Facility while subclause (B)(i) above is applicable) shall be
deposited in such Cash Collateral Account and (C) if, with respect to
any particular Liquidity Facility, neither subclause (A) nor subclause
(B) of this clause fourth is applicable, to pay or reimburse the
Liquidity Provider in respect of such Liquidity Facility, in each case
in an amount equal to the amount of all Liquidity Obligations, whether
or not then due under such Liquidity Facility (other than amounts
payable pursuant to clause first, second or third of this Section 3.3),
shall be distributed to such Liquidity Provider, pro rata on the basis
of the amounts of such deficiencies and/or unreimbursed Liquidity
Obligations in respect of each Liquidity Provider;
fifth, if, with respect to any particular Liquidity Facility,
either subclause (A) or (B) of clause fourth above is applicable, then
the Liquidity Provider with respect to such Liquidity Facility shall be
paid the excess of (x) the aggregate outstanding amount of
35
40
[2000-2 Intercreditor Agreement]
unreimbursed Advances (whether or not then due) under such Liquidity
Facility over (y) the Required Amount for the relevant Class (less the
amount of any repayments of Interest Drawings under such Liquidity
Facility while subclause (A)(i) or (B)(i), as the case may be, of
clause "fourth" above is applicable), pro rata on the basis of such
amounts in respect of each Liquidity Provider;
sixth, such amount as shall be required to reimburse or pay
(i) the Subordination Agent for any Tax (other than Taxes imposed on
compensation paid hereunder), expense, fee, charge or other loss
incurred by or any other amount payable to the Subordination Agent in
connection with the transactions contemplated hereby (to the extent not
previously reimbursed), shall be applied by the Subordination Agent in
reimbursement of such amount, (ii) each Trustee for any Tax (other than
Taxes imposed on compensation paid under any Trust Agreement), expense,
fee, charge, loss or any other amount payable to the Trustee under the
Trust Agreements (to the extent not previously reimbursed), shall be
distributed to the Trustee and (iii) each Certificateholder for
payments, if any, made by it pursuant to Section 5.2 in respect of
amounts described in clause (i) above, shall be distributed to the
Trustee for the account of such Certificateholder, in each such case,
pari passu on the basis of all amounts described in clauses (i) through
(iii) above;
seventh, if any Class A-1 Certificates or Class A-2
Certificates are Outstanding on such Distribution Date, such amount
remaining as shall be required to pay in full Adjusted Expected
Distributions on the Class A-1 Certificates shall be distributed to the
Class A-1 Trustee and such amount remaining as shall be required to pay
in full Adjusted Expected Distributions on the Class A-2 Certificates
shall be distributed to the Class A-2 Trustee, pro rata on the basis of
such amounts in respect of each such Class of Certificates;
eighth, if any Class B Certificates are Outstanding on such
Distribution Date, such amount remaining as shall be required to pay in
full Adjusted Expected Distributions on the Class B Certificates shall
be distributed to the Class B Trustee; and
ninth, if any Class C Certificates are Outstanding on such
Distribution Date, such amount remaining as shall be required to pay in
full Adjusted Expected Distributions on the Class C Certificates shall
be distributed to the Class C Trustee.
3.4 Other Payments. (a) Any payments received by the Subordination
Agent for which no provision as to the application thereof is made in this
Agreement shall be distributed by the Subordination Agent (i) in the order of
priority specified in Section 3.3 and (ii) to the extent received or realized at
any time after the Final Distributions for each Class of Certificates have been
made in the manner provided in clause first of Section 3.3.
36
41
[2000-2 Intercreditor Agreement]
(b) On any interest payment date under each Liquidity Facility
which is not a Distribution Date, the Subordination Agent shall pay to the
Liquidity Provider under such Liquidity Facility from, and to the extent of,
amounts on deposit in the Collection Account, an amount equal to the amount of
interest then due and payable to such Liquidity Provider under such Liquidity
Facility. The amount of Investment Earnings to be paid or applied pursuant to
this Section 3.4(b) or Section 3.6(f) shall reduce the Liquidity Obligations in
respect of interest due to any Liquidity Provider only to the extent actually
paid or applied.
(c) Except as otherwise provided in Section 3.3, if the
Subordination Agent receives any Scheduled Payment after the Scheduled Payment
Date relating thereto, but prior to such payment becoming an Overdue Scheduled
Payment, then the Subordination Agent shall deposit such Scheduled Payment in
the Collection Account and promptly distribute such Scheduled Payment in
accordance with the priority of distributions set forth in Section 3.2;
provided, however, that for the purposes of this Section 3.4(c) only, each
reference in clause eighth of Section 3.2 to "Distribution Date" shall be deemed
to mean the actual date of payment of such Scheduled Payment and each reference
in clause fifth, sixth or seventh of Section 3.2 to "Distribution Date" shall be
deemed to refer to such Scheduled Payment Date.
3.5 Payments to the Trustee and the Liquidity Providers. Any amounts
distributed hereunder to any Liquidity Provider shall be paid to such Liquidity
Provider by wire transfer of funds to the address such Liquidity Provider shall
provide to the Subordination Agent. The Subordination Agent shall provide a
Written Notice of any such transfer to the applicable Liquidity Provider, as the
case may be, at the time of such transfer. Any amounts distributed hereunder by
the Subordination Agent to any Trustee which shall not be the same institution
as the Subordination Agent shall be paid to such Trustee by wire transfer funds
at the address such Trustee shall provide to the Subordination Agent.
3.6 Liquidity Facilities. (a) Interest Drawings. If on any Distribution
Date, after giving effect to the subordination provisions of this Agreement, the
Subordination Agent shall not have sufficient funds for the payment of any
amounts due and owing in respect of accrued interest on the Class A-1
Certificates, the Class A-2 Certificates, the Class B Certificates or the Class
C Certificates (at the Stated Interest Rate for such Class of Certificates),
then, prior to 12:00 noon (New York City time) on such Distribution Date, the
Subordination Agent shall request a drawing (each such drawing or payment, an
"Interest Drawing") under the Liquidity Facility with respect to such Class of
Certificates in an amount equal to the lesser of (i) an amount sufficient to pay
the amount of such accrued interest and (ii) the Available Amount at such time
under such Liquidity Facility, and, upon receipt by the Subordination Agent
thereof, shall pay such amounts to the Trustee with respect to such Class of
Certificates in payment of such accrued interest.
(b) Application of Interest Drawings. Notwithstanding anything
to the contrary contained in this Agreement, (i) all payments received by the
Subordination Agent in
37
42
[2000-2 Intercreditor Agreement]
respect of an Interest Drawing under the Class A-1 Liquidity Facility and all
amounts withdrawn by the Subordination Agent from the Class A-1 Cash Collateral
Account, and payable in each case to the Class A-1 Certificateholders, shall be
promptly distributed to the Class A-1 Trustee, (ii) all payments received by the
Subordination Agent in respect of an Interest Drawing under the Class A-2
Liquidity Facility and all amounts withdrawn by the Subordination Agent from the
Class A-2 Cash Collateral Account, and payable in each case to the Class A-2
Certificateholders, shall be promptly distributed to the Class A-2 Trustee,
(iii) all payments received by the Subordination Agent in respect of an Interest
Drawing under the Class B Liquidity Facility and all amounts withdrawn by the
Subordination Agent from the Class B Cash Collateral Account, and payable in
each case to the Class B Certificateholders, shall be promptly distributed to
the Class B Trustee, and (iv) all payments received by the Subordination Agent
in respect of an Interest Drawing under the Class C Liquidity Facility and all
amounts withdrawn by the Subordination Agent from the Class C Cash Collateral
Account, and payable in each case to the Class C Certificateholders, shall be
promptly distributed to the Class C Trustee.
(c) Downgrade of Liquidity Providers; Downgrade Drawings. If
at any time any relevant debt rating of any Liquidity Provider is lower than the
applicable Threshold Rating, such Liquidity Provider shall provide notice of
such downgrading in writing to United, the Subordination Agent, the Class A-1
Trustee, the Class A-2 Trustee, the Class B Trustee and the Class C Trustee. If
at any time, any Liquidity Provider's rating is lower than the applicable
Threshold Rating, then within 10 days (or, in the case of the Class A-1, Class
A-2 and Class B Liquidity Facilities, 45 days for a downgrade from A-1+ to A-1
by Standard & Poor's) after such downgrading (but no later than the expiration
date of the Liquidity Facility issued by the downgraded Liquidity Provider (the
"Downgraded Facility")), such Liquidity Provider or United may arrange for one
or more Replacement Liquidity Providers to issue and deliver a Replacement
Liquidity Facility to the Subordination Agent. If a Downgraded Facility has not
been replaced in accordance with the terms of this paragraph, the Subordination
Agent shall, on such 10th day, or the 45th day, as the case may be (or if such
day is not a Business Day, on the next succeeding Business Day) (or, if earlier,
the expiration date of such Downgraded Facility) request a drawing in accordance
with and to the extent permitted by such Downgraded Facility (such drawing, a
"Downgrade Drawing") of the Available Amount thereunder. Amounts drawn pursuant
to a Downgrade Drawing shall be maintained and invested as provided in Section
3.6(f). The applicable Liquidity Provider may also arrange for one or more
Replacement Liquidity Providers to issue and deliver a Replacement Liquidity
Facility at any time after such Downgrade Drawing so long as such Downgrade
Drawing has not been reimbursed in full to such Liquidity Provider.
(d) Non-Extension Drawings. If any Liquidity Facility with
respect to any Class of Certificates is scheduled to expire on a date (the
"Stated Expiration Date") prior to the date that is fifteen (15) days after the
Final Maturity Date for such Class of Certificates, then, no earlier than the
60th day and no later than the 40th day prior to such Stated Expiration Date
(unless such Stated Expiration Date is on or after the date that is 15 days
after the Final Maturity Date for such Class of Certificates), the Subordination
Agent shall request that the Liquidity
38
43
[2000-2 Intercreditor Agreement]
Provider for such Liquidity Facility extend the Stated Expiration Date to the
earlier of (i) the date that is 15 days after the Final Maturity Date for such
Class of Certificates and (ii) the date that is the day immediately preceding
the 364th day occurring after the last day of the Consent Period (as hereinafter
defined) (unless the obligations of such Liquidity Provider are earlier
terminated in accordance with such Liquidity Facility). Whether or not the
Liquidity Provider has received such a request from the Subordination Agent, the
Liquidity Provider shall advise the Subordination Agent, no earlier than the
40th day (or, if earlier, the date of the Liquidity Provider's receipt of such
request, if any, from the Subordination Agent), and no later than the 25th day
prior to the Stated Expiration Date (such period, with respect to such Liquidity
Facility, the "Consent Period"), whether, in its sole discretion, it agrees to
so extend the Stated Expiration Date. If (A) on or before the date on which such
Consent Period ends, such Liquidity Facility shall not have been replaced in
accordance with Section 3.6(e), and (B) the Liquidity Provider fails irrevocably
and unconditionally to advise the Subordination Agent on or before the date on
which such Consent Period ends that the Stated Expiration Date shall be so
extended for such Liquidity Facility, the Subordination Agent shall on the date
on which such Consent Period ends (or as soon as possible thereafter), in
accordance with the terms of the expiring Liquidity Facility (a "Non-Extended
Facility"), request a drawing under such expiring Liquidity Facility (such
drawing, a "Non-Extension Drawing") of all available and undrawn amounts
thereunder. Amounts drawn pursuant to a Non-Extension Drawing shall be
maintained and invested in accordance with Section 3.6(f).
(e) Issuance of Replacement Liquidity Facility. (i) At any
time, United may, at its option, arrange for Replacement Liquidity Facilities to
replace the Liquidity Facilities for the Class A-1 Certificates, the Class A-2
Certificates, the Class B Certificates and the Class C Certificates; provided,
however, that the initial Liquidity Provider shall not be replaced by United as
a Liquidity Provider with respect to any Class of Certificates unless (A) there
shall have become due to such initial Liquidity Provider, or such initial
Liquidity Provider shall have demanded, amounts pursuant to Section 3.01, 3.02
or 3.03 of any applicable Liquidity Facility and the replacement of such initial
Liquidity Provider would reduce or eliminate the obligation to pay such amounts
or United determines in good faith that there is a substantial likelihood that
such initial Liquidity Provider will have the right to claim any such amounts
(unless such initial Liquidity Provider waives, in writing, any right it may
have to claim such amounts), which determination shall be set forth in a
certificate delivered by United to such initial Liquidity Provider setting forth
the basis for such determination and accompanied by an opinion of outside
counsel selected by United and reasonably acceptable to such initial Liquidity
Provider verifying the legal conclusions, if any, of such certificate relating
to such basis, provided that, in the case of any likely claim for such amounts
based upon any proposed, or proposed change in, law, rule, regulation,
interpretation, directive, requirement, request or administrative practice, such
opinion may assume the adoption or promulgation of such proposed matter, (B) it
shall become unlawful or impossible for such initial Liquidity Provider (or its
Lending Office) to maintain or fund its LIBOR Advances as described in Section
3.10 of any Liquidity Facility, (C) any Liquidity Facility of such initial
Liquidity Provider shall become a Downgraded Facility or a
39
44
[2000-2 Intercreditor Agreement]
Non-Extended Facility or a Downgrade Drawing or a Non-Extension Drawing shall
have occurred under any Liquidity Facility of such initial Liquidity Provider or
(D) such initial Liquidity Provider shall have breached any of its payment
(including, without limitation, funding) obligations under any Liquidity
Facility in respect of which it is the Liquidity Provider. If such Replacement
Liquidity Facility is provided at any time after a Downgrade Drawing or
Non-Extension Drawing has been made, all funds on deposit in the relevant Cash
Collateral Account will be returned to the Liquidity Provider being replaced. If
(x) any Liquidity Provider shall determine not to extend any of its Liquidity
Facilities in accordance with Section 3.6(d) or (y) any Liquidity Provider has
made a Non-Extension Drawing under any Liquidity Facility, then such Liquidity
Provider may, at its option, arrange for a Replacement Liquidity Facility to
replace such Liquidity Facility (in the case of clause (x) during the period no
earlier than 40 days and no later than 25 days prior to the then effective
Stated Expiration Date of such Liquidity Facility and in the case of clause (y)
at any time after the making of such Non-Extension Drawing).
(ii) No such Replacement Liquidity Facility executed
in connection therewith shall become effective and no such Replacement
Liquidity Facility shall be deemed a "Liquidity Facility" under the
Operative Agreements, unless and until (i) each of the conditions
referred to in Section 3.6(e)(iv) shall have been satisfied and (ii) if
such Replacement Liquidity Facility shall materially adversely affect
the rights, remedies, interests or obligations of the Class A-1
Certificateholders, the Class A-2 Certificateholders, the Class B
Certificateholders or the Class C Certificateholders under any of the
Operative Agreements, the applicable Trustee shall have consented, in
writing, to the execution and issuance of such Replacement Liquidity
Facility.
(iii) In connection with the issuance of each
Replacement Liquidity Facility, the Subordination Agent shall (x) prior
to the issuance of such Replacement Liquidity Facility, obtain written
confirmation from each Rating Agency that such Replacement Liquidity
Facility will not cause a reduction of any rating then in effect for
the Class A-1 Certificates, the Class A-2 Certificates, the Class B
Certificates or the Class C Certificates by such Rating Agency (without
regard to any downgrading of any rating of any Liquidity Provider being
replaced pursuant to Section 3.6(c)), (y) pay all Liquidity Obligations
then owing to the replaced Liquidity Provider (which payment may be
made as provided in clause (viii) of Section 3.6(f) pursuant to a
drawing under the Replacement Liquidity Facility, or otherwise) and (z)
cause the issuer or issuers of the Replacement Liquidity Facility to
deliver the Replacement Liquidity Facility to the Subordination Agent,
together with a legal opinion opining that such Replacement Liquidity
Facility is an enforceable obligation of such Replacement Liquidity
Providers.
(iv) Upon satisfaction of the conditions set forth in
Sections 3.6(e)(ii) and 3.6(e)(iii) (w) the replaced Liquidity Facility
shall terminate, (x) the Subordination Agent shall, if and to the
extent so requested by United or the Liquidity Provider being replaced,
execute and deliver any certificate or other instrument required in
order to
40
45
[2000-2 Intercreditor Agreement]
terminate the replaced Liquidity Facility, shall surrender the replaced
Liquidity Facility to the Liquidity Provider being replaced and shall
execute and deliver the Replacement Liquidity Facility and any
associated Fee Letter, (y) each of the parties hereto shall enter into
any amendments to this Agreement necessary to give effect to (a) the
replacement of the applicable Liquidity Provider with the applicable
Replacement Liquidity Provider and (b) the replacement of the
applicable Liquidity Facility with the applicable Replacement Liquidity
Facility, and (z) the applicable Replacement Liquidity Provider shall
be deemed to be a Liquidity Provider with the rights and obligations of
a Liquidity Provider hereunder and under the other Operative Agreements
and such Replacement Liquidity Facility shall be deemed to be a
Liquidity Facility hereunder and under the other Operative Agreements.
(f) Cash Collateral Accounts; Withdrawals; Investments. If the
Subordination Agent shall draw all available amounts under the Class A-1
Liquidity Facility, the Class A-2 Liquidity Facility, the Class B Liquidity
Facility or the Class C Liquidity Facility pursuant to Section 3.6(c), 3.6(d) or
3.6(i), or in the event that amounts are to be deposited in any Cash Collateral
Account related to the Liquidity Facilities pursuant to subclause (B) of clause
third of Section 2.4(b) or 3.2 or subclause (B) of clause fourth of Section 3.3,
amounts so drawn or to be deposited, as the case may be, shall be deposited by
the Subordination Agent in the Class A-1 Cash Collateral Account, Class A-2 Cash
Collateral Account, the Class B Cash Collateral Account, or the Class C Cash
Collateral Account, respectively. Amounts so deposited in the Cash Collateral
Accounts shall be invested in Eligible Investments in accordance with Section
2.2(b). Investment Earnings on amounts on deposit in the Cash Collateral Account
with respect to any Liquidity Facility shall be paid after a Non-Extension
Drawing or Downgrade Drawing by the Subordination Agent to the relevant
Liquidity Provider on each Distribution Date and, to the extent not so paid,
together with all other Investment Earnings shall be deposited in the Collection
Account prior to giving effect to the distributions below on each Distribution
Date commencing on the first Distribution Date after any such Drawing. The
Subordination Agent shall deliver a written statement to United and each
Liquidity Provider one day prior to each Distribution Date setting forth the
aggregate amount of Investment Earnings held in the Cash Collateral Accounts as
of such date. In addition, from and after the date funds are so deposited, the
Subordination Agent shall make withdrawals from such account as follows:
(i) on each Distribution Date, the Subordination
Agent shall, to the extent it shall not have received funds to pay
accrued and unpaid interest due and payable on the Class A-1
Certificates from any other source, withdraw from the Class A-1 Cash
Collateral Account, and pay to the Class A-1 Trustee for the benefit of
the Class A-1 Certificateholders, an amount equal to the lesser of (x)
an amount necessary to pay accrued and unpaid interest on such Class
A-1 Certificates and (y) the amount on deposit in the Class A-1 Cash
Collateral Account;
41
46
[2000-2 Intercreditor Agreement]
(ii) on each Distribution Date, the Subordination
Agent shall, to the extent it shall not have received funds to pay
accrued and unpaid interest due and payable on the Class A-2
Certificates from any other source, withdraw from the Class A-2 Cash
Collateral Account, and pay to the Class A-2 Trustee for the benefit of
the Class A-2 Certificateholders, an amount equal to the lesser of (x)
an amount necessary to pay accrued and unpaid interest on such Class
A-2 Certificates and (y) the amount on deposit in the Class A-2 Cash
Collateral Account;
(iii) on each Distribution Date, the Subordination
Agent shall, to the extent it shall not have received funds to pay
accrued and unpaid interest due and payable on the Class B Certificates
from any other source, withdraw from the Class B Cash Collateral
Account, and pay to the Class B Trustee for the benefit of the Class B
Certificateholders, an amount equal to the lesser of (x) an amount
necessary to pay accrued and unpaid interest on such Class B
Certificates and (y) the amount on deposit in the Class B Cash
Collateral Account;
(iv) on each Distribution Date, the Subordination
Agent shall, to the extent it shall not have received funds to pay
accrued and unpaid interest due and payable on the Class C Certificates
from any other source, withdraw from the Class C Cash Collateral
Account, and pay to the Class C Trustee for the benefit of the Class C
Certificateholders, an amount equal to the lesser of (x) an amount
necessary to pay accrued and unpaid interest on such Class C
Certificates and (y) the amount on deposit in the Class C Cash
Collateral Account;
(v) on each date on which the Pool Balance of the
Class A-1 Trust shall have been reduced by payments made to the Class
A-1 Certificateholders pursuant to Section 2.4, 3.2 or 3.3, the
Subordination Agent shall withdraw from the Class A-1 Cash Collateral
Account such amount as is necessary so that (after giving effect to the
reduction of the Pool Balance on such date, any prior withdrawal of
amounts on deposit in the Class A-1 Cash Collateral Account on such
date and any transfer of Investment Earnings from such Cash Collateral
Account to the Collection Account or the Special Payments Account on
such date) an amount equal to the sum of the Required Amount (with
respect to the Class A-1 Liquidity Facility) plus any Investment
Earnings remaining on deposit in such Cash Collateral Account will be
on deposit in the Class A-1 Cash Collateral Account and shall first,
pay such amount to the Class A-1 Liquidity Provider until the Liquidity
Obligations (with respect to the Class A-1 Certificates) owing to such
Liquidity Provider shall have been paid in full, and second, deposit
any remaining amount into the Collection Account;
42
47
[2000-2 Intercreditor Agreement]
(vi) on each date on which the Pool Balance of the
Class A-2 Trust shall have been reduced by payments made to the Class
A-2 Certificateholders pursuant to Section 2.4, 3.2 or 3.3, the
Subordination Agent shall withdraw from the Class A-2 Cash Collateral
Account such amount as is necessary so that (after giving effect to the
reduction of the Pool Balance on such date, any prior withdrawal of
amounts on deposit in the Class A-2 Cash Collateral Account on such
date and any transfer of Investment Earnings from such Cash Collateral
Account to the Collection Account or the Special Payments Account on
such date) an amount equal to the sum of the Required Amount (with
respect to the Class A-2 Liquidity Facility) plus any Investment
Earnings remaining on deposit in such Cash Collateral Account will be
on deposit in the Class A-2 Cash Collateral Account and shall first,
pay such amount to the Class A-2 Liquidity Provider until the Liquidity
Obligations (with respect to the Class A-2 Certificates) owing to such
Liquidity Provider shall have been paid in full, and second, deposit
any remaining amount into the Collection Account;
(vii) on each date on which the Pool Balance of the
Class B Trust shall have been reduced by payments made to the Class B
Certificateholders pursuant to Section 2.4, 3.2 or 3.3, the
Subordination Agent shall withdraw from the Class B Cash Collateral
Account such amount as is necessary so that (after giving effect to the
reduction of the Pool Balance on such date, any prior withdrawal of
amounts on deposit in the Class B Cash Collateral Account on such date
and any transfer of Investment Earnings from such Cash Collateral
Account to the Collection Account or the Special Payments Account on
such date) an amount equal to the sum of the Required Amount (with
respect to the Class B Liquidity Facility) plus any Investment Earnings
remaining on deposit in such Cash Collateral Account will be on deposit
in the Class B Cash Collateral Account and shall first, pay such amount
to the Class B Liquidity Provider until the Liquidity Obligations (with
respect to the Class B Certificates) owing to such Liquidity Provider
shall have been paid in full, and second, deposit any remaining amount
into the Collection Account;
(viii) on each date on which the Pool Balance of the
Class C Trust shall have been reduced by payments made to the Class C
Certificateholders pursuant to Section 2.4, 3.2 or 3.3, the
Subordination Agent shall withdraw from the Class C Cash Collateral
Account such amount as is necessary so that (after giving effect to the
reduction of the Pool Balance on such date, any prior withdrawal of
amounts on deposit in the Class C Cash Collateral Account on such date
and any transfer of Investment Earnings from such Cash Collateral
Account to the Collection Account or the Special Payments Account on
such date) an amount equal to the sum of the Required Amount (with
respect to the Class C Liquidity Facility) plus any Investment Earnings
remaining on deposit in such Cash Collateral Account will be on deposit
in the Class C Cash Collateral Account and shall first, pay such amount
to the Class C Liquidity Provider until the Liquidity Obligations (with
respect to the Class C Certificates) owing to such
43
48
[2000-2 Intercreditor Agreement]
Liquidity Provider shall have been paid in full, and second, deposit
any remaining amount into the Collection Account;
(ix) if a Replacement Liquidity Facility for any
Class of Certificates shall be delivered to the Subordination Agent
following the date on which funds have been deposited into the Cash
Collateral Account related to the Liquidity Facility for such Class of
Certificates, the Subordination Agent shall withdraw all amounts on
deposit in such Cash Collateral Account and shall pay such amounts to
the replaced Liquidity Provider until all Liquidity Obligations owed to
such Person shall have been paid in full pro rata on the basis of the
amount of Liquidity Obligations owed to each Liquidity Provider, and
shall deposit any remaining amount in the Collection Account; and
(x) following the payment of Final Distributions with
respect to the Class A-1 Certificates, the Class A-2 Certificates, the
Class B Certificates or the Class C Certificates, on the date on which
the Subordination Agent shall have been notified by any Liquidity
Provider for such Class of Certificates that the Liquidity Obligations
owed to such Liquidity Provider have been paid in full, the
Subordination Agent shall withdraw all amounts on deposit in the Cash
Collateral Account related to the Liquidity Facility in respect of such
Class of Certificates and shall deposit such amount into the Collection
Account.
(g) Reinstatement. With respect to any Interest Drawing under
the Liquidity Facility for any Trust, upon the reimbursement of each applicable
Liquidity Provider for all or any part of the amount of such Interest Drawing,
together with any accrued interest thereon, the Available Amount of such
Liquidity Facility shall be reinstated by an amount equal to the amount of such
Interest Drawing so reimbursed to the relevant Liquidity Provider, but not to
exceed the Stated Amount for such Liquidity Facility; provided, however, that
such Liquidity Facility shall not be so reinstated in part or in full at any
time if (x) both a Performing Note Deficiency exists and a Liquidity Event of
Default shall have occurred and be continuing with respect to the relevant
Liquidity Facility or (y) a Final Drawing shall have occurred with respect to
such Liquidity Facility. In the event that, with respect to any particular
Liquidity Facility, (i) funds are withdrawn from the related Cash Collateral
Account pursuant to clauses (i), (ii), (iii) or (iv) of Section 3.6(f) or (ii)
such Liquidity Facility shall become a Downgraded Facility or Non-Extended
Facility at a time when unreimbursed Interest Drawings under such Liquidity
Facility have reduced the Available Amount thereunder to zero, then funds
received by the Subordination Agent at any time other than (x) any time when a
Liquidity Event of Default shall have occurred and be continuing with respect to
such Liquidity Facility and a Performing Note Deficiency exists or (y) any time
after a Final Drawing shall have occurred with respect to such Liquidity
Facility, shall be deposited in such applicable Cash Collateral Account as
provided in clause third of Section 2.4(b), clause third of Section 3.2 or
clause fourth of Section 3.3, as applicable, and applied in accordance with
Section 3.6(f).
44
49
[2000-2 Intercreditor Agreement]
(h) Reimbursement. The amount of each drawing under the
Liquidity Facilities shall be due and payable, together with interest thereon,
on the dates and at the rates, respectively, provided in the Liquidity
Facilities.
(i) Final Drawing upon Termination Notice. Upon receipt from a
Liquidity Provider of a Termination Notice with respect to any Liquidity
Facility, the Subordination Agent shall, not later than the date specified in
such Termination Notice, in accordance with and to the extent permitted by the
terms of such Liquidity Facility, request a drawing under such Liquidity
Facility of all available and undrawn amounts thereunder (a "Final Drawing").
Amounts drawn pursuant to a Final Drawing shall be maintained and invested in
accordance with Section 3.6(f).
(j) Reduction of Stated Amount. Promptly following each date
on which the Required Amount of the Liquidity Facility for a Class of
Certificates is reduced as a result of a reduction in the Pool Balance with
respect to such Certificates, the Stated Amount of such Liquidity Facility shall
automatically be reduced to an amount equal to the Required Amount with respect
to such Liquidity Facility (as calculated by the Subordination Agent after
giving effect to such payment).
(k) Relation to Subordination Provisions. Interest Drawings
under the Liquidity Facilities and withdrawals from the Cash Collateral
Accounts, in each case, in respect of interest on the Certificates of the Class
A-1 Certificates, the Class A-2 Certificates, the Class B Certificates, or the
Class C Certificates shall be distributed to the Trustee for such Class of
Certificates, notwithstanding Sections 2.4, 3.2 and 3.3.
(l) Assignment of Liquidity Facility. The Subordination Agent
agrees not to consent to the assignment by any Liquidity Provider of any of its
rights or obligations under any Liquidity Facility or any interest therein,
unless (i) United shall have consented to such assignment and (ii) each Rating
Agency shall have provided a Ratings Confirmation in respect of such assignment,
and the foregoing is not intended to and shall not be construed to limit the
rights of the Liquidity Provider set forth in the last sentence of Section
3.6(e)(i).
ARTICLE IV
EXERCISE OF REMEDIES
4.1 Directions from the Controlling Party. (a) (i) Following the
occurrence and during the continuation of an Indenture Default under any
Indenture, the Controlling Party shall direct the Subordination Agent, which in
turn shall direct the Indenture Trustee under such Indenture in the exercise of
remedies available to the holders of the Notes issued pursuant to such
Indenture. Such remedies shall include the ability to vote all such Notes in
favor of declaring all of the unpaid principal amount of such Notes and accrued
interest thereon to be due and payable under, and in accordance with, the
provisions of such Indenture. If the Notes issued pursuant to
45
50
[2000-2 Intercreditor Agreement]
any Indenture have been Accelerated following an Indenture Default with respect
thereto, the Controlling Party may direct the Subordination Agent to sell,
assign, contract to sell or otherwise dispose of and deliver all (but not less
than all) of such Notes to any Person at public or private sale, at any location
at the option of the Controlling Party, all upon such terms and conditions as it
may reasonably deem advisable in accordance with applicable law.
(ii) Notwithstanding the foregoing, so long as any
Certificates remain Outstanding, during the period ending on the date
which is nine months after the earliest to occur of (y) the
Acceleration of the Notes issued pursuant to any Indenture and (z) the
occurrence of a United Bankruptcy Event, without the consent of each
Trustee (other than any Trustee of a Trust to the extent that United or
any Affiliate of United holds a majority-in-interest of the
Certificates issued by such Trust), no Aircraft subject to the Lien of
any Indenture or Notes may be sold if the net proceeds from such sale
would be less than the Minimum Sale Price for such Aircraft or such
Note.
(iii) At the request of the Controlling Party, the
Subordination Agent may from time to time during the continuance of an
Indenture Default in respect of an Indenture (and before the occurrence
of a Triggering Event) commission Appraisals with respect to the
Aircraft, subject to such Indenture.
(iv) After a Triggering Event occurs and any Note
becomes a Non-Performing Equipment Note, the Subordination Agent shall
obtain Appraisals with respect to all of the Aircraft (the "LTV
Appraisals") as soon as practicable and additional LTV Appraisals on or
prior to each anniversary of the date of such initial LTV Appraisals;
provided, however, that if the Controlling Party reasonably objects to
the appraised value of the Aircraft shown in such LTV Appraisals, the
Controlling Party shall have the right to obtain or cause to be
obtained substitute LTV Appraisals (including LTV Appraisals based upon
physical inspection of the Aircraft).
(b) Following the occurrence and during the continuance of an
Indenture Default under any Indenture, the Controlling Party shall take such
actions as it may reasonably deem most effectual to complete the sale or other
disposition of the relevant Aircraft or related Notes. In addition, in lieu of
any sale, assignment, contract to sell or other disposition, the Controlling
Party may maintain possession of such Notes and continue to apply monies
received in respect of such Notes in accordance with Article III. In addition,
in lieu of such sale, assignment, contract to sell or other disposition, or in
lieu of such maintenance of possession, the Controlling Party may instruct the
Indenture Trustee under such Indenture to foreclose on the Lien on the related
Aircraft.
4.2 Remedies Cumulative. Each and every right, power and remedy given
to the Trustees, the Liquidity Providers, the Controlling Party or the
Subordination Agent specifically or otherwise in this Agreement shall be
cumulative and shall be in addition to every other right,
46
51
[2000-2 Intercreditor Agreement]
power and remedy herein specifically given or now or hereafter existing at law,
in equity or by statute, and each and every right, power and remedy whether
specifically herein given or otherwise existing may, subject always to the terms
and conditions hereof, be exercised from time to time and as often and in such
order as may be deemed expedient by any Trustee, the Liquidity Providers, the
Controlling Party or the Subordination Agent, as appropriate, and the exercise
or the beginning of the exercise of any power or remedy shall not be construed
to be a waiver of the right to exercise at the same time or thereafter any other
right, power or remedy. No delay or omission by any Trustee, the Liquidity
Providers, the Controlling Party or the Subordination Agent in the exercise of
any right, remedy or power or in the pursuit of any remedy shall impair any such
right, power or remedy or be construed to be a waiver of any default or to be an
acquiescence therein.
4.3 Discontinuance of Proceedings. If any party to this Agreement
(including the Controlling Party in such capacity) shall have instituted any
Proceeding to enforce any right, power or remedy under this Agreement by
foreclosure, entry or otherwise, and such Proceeding shall have been
discontinued or abandoned for any reason or shall have been determined adversely
to the Person instituting such Proceeding, then and in every such case each such
party shall, subject to any determination in such Proceeding, be restored to its
former position and rights hereunder, and all rights, remedies and powers of
such party shall continue as if no such Proceeding had been instituted.
4.4 Right of Certificateholders to Receive Payments Not to Be Impaired.
Anything in this Agreement to the contrary notwithstanding but subject to each
Trust Agreement, the right of any Certificateholder or any Liquidity Provider,
respectively, to receive payments hereunder (including pursuant to Section 2.4,
3.2 or 3.3) when due, or to institute suit for the enforcement of any such
payment on or after the applicable Distribution Date, shall not be impaired or
affected without the consent of such Certificateholder or such Liquidity
Provider, respectively.
4.5 Undertaking for Costs. In any suit for the enforcement of any right
or remedy under this Agreement or in any suit against any Controlling Party or
the Subordination Agent for any action taken or omitted by it as Controlling
Party or Subordination Agent, as the case may be, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. The provisions of this Section
4.5 do not apply to a suit instituted by the Subordination Agent, a Liquidity
Provider or a Trustee or a suit by Certificateholders holding more than 10% of
the original principal amount of any Class of Certificates.
47
52
[2000-2 Intercreditor Agreement]
ARTICLE V
DUTIES OF THE SUBORDINATION AGENT;
AGREEMENTS OF TRUSTEES, ETC.
5.1 Notice of Indenture Default or Triggering Event. (a) If the
Subordination Agent shall have actual knowledge of the occurrence of an
Indenture Default or a Triggering Event, as promptly as practicable, and in any
event within 10 days after obtaining knowledge thereof, the Subordination Agent
shall transmit by mail or courier to the Rating Agencies, the Liquidity
Providers and the Trustees notice of such Indenture Default or Triggering Event,
unless such Indenture Default or Triggering Event shall have been cured or
waived. For all purposes of this Agreement, in the absence of actual knowledge
on the part of a Responsible Officer, the Subordination Agent shall not be
deemed to have knowledge of any Indenture Default or Triggering Event unless
notified in writing by one or more Trustees, one or more Liquidity Providers or
one or more Certificateholders.
(b) Other Notices. The Subordination Agent will furnish to
each Liquidity Provider and each Trustee, promptly upon receipt thereof,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and other instruments furnished to the Subordination Agent
as registered holder of the Notes or otherwise in its capacity as Subordination
Agent to the extent the same shall not have been otherwise directly distributed
to such Liquidity Provider or the Trustee, as applicable, pursuant to the
express provision of any other Operative Agreement.
5.2 Indemnification. The Subordination Agent shall not be required to
take any action or refrain from taking any action under Section 5.1 (other than
the first sentence thereof) or Article IV unless the Subordination Agent shall
have been indemnified (to the extent and in the manner reasonably satisfactory
to the Subordination Agent) against any liability, cost or expense (including
counsel fees and expenses) which may be incurred in connection therewith. The
Subordination Agent shall not be under any obligation to take any action under
this Agreement and nothing contained in this Agreement shall require the
Subordination Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. The Subordination Agent shall not
be required to take any action under Section 5.1 (other than the first sentence
thereof) or Article IV, nor shall any other provision of this Agreement be
deemed to impose a duty on the Subordination Agent to take any action, if the
Subordination Agent shall have been advised by counsel that such action is
contrary to the terms hereof or is otherwise contrary to law.
5.3 No Duties Except as Specified in Intercreditor Agreement. The
Subordination Agent shall not have any duty or obligation to take or refrain
from taking any action under, or in
48
53
[2000-2 Intercreditor Agreement]
connection with, this Agreement, except as expressly provided by the terms of
this Agreement; and no implied duties or obligations shall be read into this
Agreement against the Subordination Agent. The Subordination Agent agrees that
it will, in its individual capacity and at its own cost and expense (but without
any right of indemnity in respect of any such cost or expense) promptly take
such action as may be necessary to duly discharge all Liens on any of the Trust
Accounts or any monies deposited therein which result from claims against it in
its individual capacity not related to its activities hereunder or any other
Operative Agreement.
5.4 Notice from the Liquidity Providers and Trustee. If any Liquidity
Provider or any Trustee has notice of an Indenture Default or a Triggering
Event, such Person shall promptly give notice thereof to all other Liquidity
Providers, to the Trustees and to the Subordination Agent, provided, however,
that no such Person shall have any liability hereunder as a result of its
failure to deliver any such notice.
ARTICLE VI
THE SUBORDINATION AGENT
6.1 Acceptance of Trusts and Duties. Each of the Class A-1 Trustee, the
Class A-2 Trustee, the Class B Trustee and the Class C Trustee hereby designates
and appoints the Subordination Agent as the agent and trustee of such Trustee
under the applicable Liquidity Facility and authorizes the Subordination Agent
to enter into the applicable Liquidity Facility as agent and trustee for such
Trustee. Each of the Liquidity Providers and each of the Trustees hereby
designates and appoints State Street as the Subordination Agent under this
Agreement. State Street hereby accepts the duties hereby created and applicable
to it as the Subordination Agent and agrees to perform the same but only upon
the terms of this Agreement and agrees to receive and disburse all monies
received by it in accordance with the terms hereof. The Subordination Agent
shall not be answerable or accountable under any circumstances, except (a) for
its own willful misconduct or gross negligence or for its negligence in the
receipt and disbursement of funds, (b) as provided in Section 2.2 or 5.3 and (c)
for liabilities that may result from the material inaccuracy of any
representation or warranty of the Subordination Agent made in its individual
capacity in any Operative Agreement. The Subordination Agent shall not be liable
for any error of judgment made in good faith by a Responsible Officer of the
Subordination Agent, unless it is proved that the Subordination Agent was
negligent in ascertaining the pertinent facts.
6.2 Absence of Duties. The Subordination Agent shall have no duty to
see to any recording or filing of this Agreement or any other document, or to
see to the maintenance of any such recording or filing.
6.3 No Representations or Warranties as to Documents. The Subordination
Agent in its individual capacity does not make nor shall be deemed to have made
any representation or
49
54
[2000-2 Intercreditor Agreement]
warranty as to the validity, legality or enforceability of this Agreement or any
other Operative Agreement or as to the correctness of any statement contained in
any thereof, except for the representations and warranties of the Subordination
Agent, made in its individual capacity, under any Operative Agreement to which
it is a party. The Certificateholders, the Trustees and the Liquidity Providers
make no representation or warranty hereunder whatsoever.
6.4 No Segregation of Monies; No Interest. Any monies paid to or
retained by the Subordination Agent pursuant to any provision hereof and not
then required to be distributed to any Trustee or any Liquidity Provider as
provided in Articles II and III need not be segregated in any manner except to
the extent required by such Articles II and III and by law, and the
Subordination Agent shall not (except as otherwise provided in Section 2.2) be
liable for any interest thereon; provided, however, that any payments received
or applied hereunder by the Subordination Agent shall be accounted for by the
Subordination Agent so that any portion thereof paid or applied pursuant hereto
shall be identifiable as to the source thereof.
6.5 Reliance; Agents; Advice of Counsel. The Subordination Agent shall
not incur liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper believed by it to be genuine and believed by it to be signed
by the proper party or parties. As to the Pool Balance of any Trust as of any
date, the Subordination Agent may for all purposes hereof rely on a certificate
signed by any Responsible Officer of the Trustee, and such certificate shall
constitute full protection to the Subordination Agent for any action taken or
omitted to be taken by it in good faith in reliance thereon. As to any fact or
matter relating to the Liquidity Providers or the Trustees the manner of
ascertainment of which is not specifically described herein, the Subordination
Agent may for all purposes hereof rely on a certificate, signed by any
Responsible Officer of the applicable Liquidity Provider or the Trustee, as the
case may be, as to such fact or matter, and such certificate shall constitute
full protection to the Subordination Agent for any action taken or omitted to be
taken by it in good faith in reliance thereon. The Subordination Agent shall
assume, and shall be fully protected in assuming, that each of the Liquidity
Providers and each of the Trustees are authorized to enter into this Agreement
and to take all action to be taken by them pursuant to the provisions hereof,
and shall not inquire into the authorization of each of the Liquidity Providers
and each of the Trustees with respect thereto. In the administration of the
trusts hereunder, the Subordination Agent may execute any of the trusts or
powers hereof and perform its powers and duties hereunder directly or through
agents or attorneys and may consult with counsel, accountants and other skilled
persons to be selected and retained by it, and the Subordination Agent shall not
be liable for the acts or omissions of any agent appointed with due care or for
anything done, suffered or omitted in good faith by it in accordance with the
advice or written opinion of any such counsel, accountants or other skilled
persons.
6.6 Capacity in Which Acting. The Subordination Agent acts hereunder
solely as agent and trustee herein and not in its individual capacity, except as
otherwise expressly provided in the Operative Agreements.
50
55
[2000-2 Intercreditor Agreement]
6.7 Compensation. The Subordination Agent shall be entitled to
reasonable compensation, including expenses and disbursements, for all services
rendered hereunder and shall have a priority claim to the extent set forth in
Article III on all monies collected hereunder for the payment of such
compensation, to the extent that such compensation shall not be paid by others.
The Subordination Agent agrees that it shall have no right against any Trustee
or any Liquidity Provider for any fee as compensation for its services as agent
under this Agreement. The provisions of this Section 6.7 shall survive the
termination of this Agreement.
6.8 May Become Certificateholder. The institution acting as
Subordination Agent hereunder may become a Certificateholder and have all rights
and benefits of a Certificateholder to the same extent as if it were not the
institution acting as the Subordination Agent.
6.9 Subordination Agent Required; Eligibility. There shall at all times
be a Subordination Agent hereunder which shall be a corporation organized and
doing business under the laws of the United States of America or of any state or
territory thereof or the District of Columbia having a combined capital and
surplus of at least $75,000,000 (or $5,000,000 and the obligations of which,
whether now in existence or hereafter incurred, are fully and unconditionally
guaranteed by a corporation organized and doing business under the laws of the
United States, any state or territory thereof or of the District of Columbia and
having a combined capital and surplus of at least $75,000,000), if there is such
an institution willing and able to perform the duties of the Subordination Agent
hereunder upon reasonable or customary terms. Such corporation shall be a
citizen of the United States and shall be authorized under the laws of the
United States or any State or territory thereof or of the District of Columbia
to exercise corporate trust powers and shall be subject to supervision or
examination by federal, state, territorial or District of Columbia authorities.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of any of the aforesaid supervising or examining
authorities, then, for the purposes of this Section 6.9, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
In case at any time the Subordination Agent shall cease to be
eligible in accordance with the provisions of this Section, the Subordination
Agent shall resign immediately in the manner and with the effect specified in
Section 8.1.
6.10 Money to Be Held in Trust. All Notes, monies and other property
deposited with or held by the Subordination Agent pursuant to this Agreement
shall be held in trust for the benefit of the parties entitled to such Notes,
monies and other property. All such Notes, monies or other property shall be
held in the Trust Department of the institution acting as Subordination Agent
hereunder.
51
56
[2000-2 Intercreditor Agreement]
ARTICLE VII
[Reserved]
ARTICLE VIII
SUCCESSOR SUBORDINATION AGENT
8.1 Replacement of Subordination Agent; Appointment of Successor. The
Subordination Agent may resign at any time by so notifying the Trustee and the
Liquidity Providers. United (so long as no "Event of Default" has occurred and
is continuing under any Indenture or Lease (as such term is defined therein)) or
the Controlling Party may remove the Subordination Agent for cause by so
notifying the Subordination Agent, and the Controlling Party may appoint a
successor Subordination Agent. The Controlling Party shall remove the
Subordination Agent if:
(1) the Subordination Agent fails to comply with Section 6.9;
(2) the Subordination Agent is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Subordination Agent or its property; or
(4) the Subordination Agent otherwise becomes incapable of
acting.
If the Subordination Agent resigns or is removed or if a vacancy exists
in the office of Subordination Agent for any reason (the Subordination Agent in
such event being referred to herein as the retiring Subordination Agent), the
Controlling Party shall promptly appoint a successor Subordination Agent.
A successor Subordination Agent shall deliver (x) a written acceptance
of its appointment as Subordination Agent hereunder to the retiring
Subordination Agent and (y) a written assumption of its obligations hereunder
and under each Liquidity Facility to each party hereto, upon which the
resignation or removal of the retiring Subordination Agent shall become
effective, and the successor Subordination Agent shall have all the rights,
powers and duties of the Subordination Agent under this Agreement. The successor
Subordination Agent shall mail a notice of its succession to the Liquidity
Providers and the Trustees. The retiring Subordination Agent shall promptly
transfer its rights under each of the Liquidity Facilities and all of the
property held by it as Subordination Agent to the successor Subordination Agent.
52
57
[2000-2 Intercreditor Agreement]
If a successor Subordination Agent does not take office within 60 days
after the retiring Subordination Agent resigns or is removed, the retiring
Subordination Agent or one or more of the Trustees may petition any court of
competent jurisdiction for the appointment of a successor Subordination Agent.
If the Subordination Agent fails to comply with Section 6.9 (to the
extent applicable), one or more of the Trustees or one or more of the Liquidity
Providers may petition any court of competent jurisdiction for the removal of
the Subordination Agent and the appointment of a successor Subordination Agent.
Notwithstanding the foregoing, no resignation or removal of the
Subordination Agent shall be effective unless and until a successor has been
appointed. No appointment of a successor Subordination Agent shall be effective
unless and until the Rating Agencies shall have delivered a Ratings
Confirmation.
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS
9.1 Amendments, Waivers, etc. (a) This Agreement may not be
supplemented, amended or modified without the consent of the Trustee (acting
except in the case of any amendment pursuant to Section 3.6(e) hereof with
respect to any Replacement Liquidity Facility or any amendment contemplated by
the last sentence of this Section 9.1(a) with the consent of holders of
Certificates of each Class evidencing interests in the related Trust aggregating
not less than a majority in interest in such Trust or as otherwise authorized
pursuant to the relevant Trust Agreements), the Subordination Agent and each
Liquidity Provider; provided, however, that this Agreement may be supplemented,
amended or modified without the consent of any Trustee and any Liquidity
Provider if such supplement, modification or amendment is in accordance with
Section 9.1(c) or cures an ambiguity or inconsistency or does not materially
adversely affect such Trustee, the Liquidity Providers or the holders of the
related Class of Certificates; provided, further, however, that if such
supplement, amendment or modification would (x) directly or indirectly modify or
supersede, or otherwise conflict with, Section 2.2(b), Section 3.6(f) or the
second sentence of Section 10.6 (collectively, together with this proviso, the
"United Provisions") or (y) otherwise adversely affect the interests of a
potential Replacement Liquidity Provider or of United with respect to its
payment obligations under any Indenture, then such supplement, amendment or
modification shall not be effective without the additional written consent of
United. Notwithstanding the foregoing, without the consent of each
Certificateholder and each Liquidity Provider, no supplement, amendment or
modification of this Agreement may (i) reduce the percentage of the interest in
any Trust or Trusts of the same Class evidenced by the Certificates issued by
such Trust or Trusts necessary to consent to modify or amend any provision of
this Agreement or to waive compliance therewith or (ii except as provided in
Section 9.1(c) modify Section 2.4, 3.2, 3.3 or 3.6(f) relating to the
distribution of monies
53
58
[2000-2 Intercreditor Agreement]
received by the Subordination Agent hereunder from the Notes or pursuant to the
Liquidity Facilities. Nothing contained in this Section 9.1 shall require the
consent of the Trustee with respect to a Class of Certificates at any time
following the payment of Final Distributions with respect to such Class of
Certificates.
If the Replacement Liquidity Facility for any Liquidity Facility in
accordance with Section 3.6(e) hereof is to be comprised of more than one
instrument as contemplated by the definition of the term "Replacement Liquidity
Facility", then each of the parties hereto agrees to amend this Agreement to
incorporate appropriate mechanics for multiple Liquidity Facilities for an
individual Trust.
(b) If the Subordination Agent, as the registered holder of
any Notes, receives a request for its consent to any amendment, modification or
waiver under or with respect to any such Notes, the Indenture pursuant to which
such Notes were issued or if applicable, any Participation Agreement or other
related document, (i) if no Indenture Default shall have occurred and be
continuing, the Subordination Agent shall request instructions from the Trustee
which holds the relevant Notes and the consent of each Liquidity Provider (which
consent shall not be unreasonably withheld or delayed) and shall vote or consent
in accordance with the vote of each such Trustee and the instructions of the
Liquidity Providers and (ii) if any Indenture Default shall have occurred and be
continuing with respect to such Indenture, the Subordination Agent will exercise
its voting rights as directed by the Controlling Party, subject to Section 4.1;
provided, however, that no amendment of or supplement to any Indenture,
Participation Agreement or other related document or waiver or modification of
the terms of, or consent under, any thereof, shall without the consent of each
Liquidity Provider, have any of the effects listed in the proviso of Section
11.02(a) of any Indenture.
(c) If, with respect to any Aircraft, Class D Certificates are
issued, this Agreement shall be amended by written agreement of United and the
Subordination Agent to provide for the subordination of such Class D
Certificates to the Class A-1 Certificates, the Class A-2 Certificates, the
Class B Certificates and the Class C Certificates substantially in the same
manner as the Class C Certificates are subordinated hereunder to the Class A-1
Certificates, the Class A-2 Certificates and the Class B Certificates. A Ratings
Confirmation shall be obtained prior to any such issuance. The amendment to this
Agreement to give effect to the issuance of any Class D Certificates shall
include:
(i) the trustee of the Class D Trust shall be added
as a party to this Agreement;
(ii) the definitions of "Cash Collateral Account,"
"Certificate," "Class," "Equipment Notes," "Final Maturity Date,"
"Liquidity Facilities," "Liquidity Provider," "LTV Ratio," "Stated
Interest Rate," "Trust," "Trust Agreement," and
54
59
[2000-2 Intercreditor Agreement]
"Controlling Party" shall be revised, as appropriate, to reflect the
issuance of the Class D Certificates and the subordination thereof; and
(iii) the provisions of this Agreement governing
payments with respect to Certificates and related notices, including
Sections 2.4, 3.1, 3.2, 3.3 and 3.6(f), shall be revised to provide for
distributions on the Class D Certificates after payment of all relevant
distributions on the Class C-1 Certificates and the Class C-2
Certificates.
If, with respect to any Aircraft, Series D Notes are issued to any Person other
than the Class D Trust, this Agreement shall be amended by written agreement of
United and the Subordination Agent to (i) provide for each holder of a Series D
Note to be bound by the provisions of Section 2.6(a) so that the Controlling
Party, among other things, shall be entitled to direct the applicable Indenture
Trustee as provided therein (and such Series D Notes shall make effective
provision therefor so as to bind each holder thereof to such provisions of
Section 2.6(a) and (ii) to revise the definitions of "Controlling Party" and
"Notes," as appropriate, to reflect the issuance of the Series D Notes (and the
prior rights, as against the holders of such Series D Notes, of the Class A-1
Trustee, the Class A-2 Trustee, the Class B Trustee and the Class C Trustee to
be such "Controlling Party"). A Ratings Confirmation shall be obtained prior to
any such issuance.
9.2 Subordination Agent Protected. If, in the reasonable opinion of the
institution acting as the Subordination Agent hereunder, any document required
to be executed pursuant to the terms of Section 9.1 affects any right, duty,
immunity or indemnity with respect to it under this Agreement or any Liquidity
Facility, the Subordination Agent may in its discretion decline to execute such
document.
9.3 Effect of Supplemental Agreements. Upon the execution of any
amendment or supplement hereto pursuant to the provisions hereof, this Agreement
shall be and be deemed to be and shall be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Agreement of the parties hereto and beneficiaries
hereof shall thereafter be determined, exercised and enforced hereunder subject
in all respects to such modifications and amendments, and all the terms and
conditions of any such supplemental agreement shall be and be deemed to be and
shall be part of the terms and conditions of this Agreement for any and all
purposes. In executing or accepting any supplemental agreement permitted by this
Article IX, the Subordination Agent shall be entitled to receive, and shall be
fully protected in relying upon, an opinion of counsel stating that the
execution of such supplemental agreement is authorized or permitted by this
Article IX.
9.4 Copy to Rating Agencies. Promptly following its receipt of each
amendment, consent, modification, supplement or waiver contemplated by this
Article IX, the Subordination Agent shall send a copy thereof to each Rating
Agency.
55
60
[2000-2 Intercreditor Agreement]
ARTICLE X
MISCELLANEOUS
10.1 Termination of Intercreditor Agreement. Following payment of Final
Distributions with respect to each Class of Certificates and the payment in full
of all Liquidity Obligations to the Liquidity Providers and so long as (i) there
shall then be no other amounts due to the Certificateholders, the Trustee, the
Liquidity Providers and the Subordination Agent hereunder or under the Trust
Agreements and (ii) the commitment of the Liquidity Providers under the
Liquidity Facilities shall have expired or been terminated, this Agreement and
the trusts created hereby shall terminate and this Agreement shall be of no
further force or effect. Except as aforesaid or otherwise provided, this
Agreement and the trusts created hereby shall continue in full force and effect
in accordance with the terms hereof.
10.2 Intercreditor Agreement for Benefit of Trustee, Liquidity
Providers and Subordination Agent. Nothing in this Agreement, whether express or
implied, shall be construed to give to any Person other than the Trustee, the
Liquidity Providers and the Subordination Agent (and United, in the case of
Section 9.1) any legal or equitable right, remedy or claim under or in respect
of this Agreement.
10.3 Notices. Unless otherwise expressly specified or permitted by the
terms hereof, all notices, requests, demands, authorizations, directions,
consents, waivers or documents provided or permitted by this Agreement to be
made, given, furnished or filed shall be in writing, mailed by certified mail,
postage prepaid, or by confirmed telecopy and
(i) if to the Subordination Agent, addressed to it at its office
at:
State Street Bank and Trust Company of Connecticut,
National Association
000 Xxxxxx Xxxxxx
Xxxxxxx Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Telephone: 000-000-0000
Telecopy: 000-000-0000
56
61
[2000-2 Intercreditor Agreement]
(ii) if to the Trustee, addressed to it at its office at:
State Street Bank and Trust Company of Connecticut,
National Association
000 Xxxxxx Xxxxxx
Xxxxxxx Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Telephone: 000-000-0000
Telecopy: 000-000-0000
(iii) if to the Liquidity Provider, addressed to it at its office
at:
Westdeutsche Landesbank Girozentrale
New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Business/Credit Contact
Attention: Transportation Finance
Global Structured Finance/Americas
Telecopy: 000-000-0000
Operations Contact
Attention: Xxxxxx Xxxxx
Loan Administration
Telecopy: 000-000-0000
Whenever any notice in writing is required to be given by the Trustee or any
Liquidity Provider or the Subordination Agent to any of the other of them, such
notice shall be deemed given and such requirement satisfied when such notice is
received, if such notice is mailed by certified mail, postage prepaid or by
courier service or is sent by confirmed telecopy addressed as provided above.
Any party hereto may change the address to which notices to such party will be
sent by giving notice of such change to the other parties to this Agreement.
10.4 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
57
62
[2000-2 Intercreditor Agreement]
10.5 No Oral Modifications or Continuing Waivers. No terms or
provisions of this Agreement may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party or other Person
against whom enforcement of the change, waiver, discharge or termination is
sought and any other party or other Person whose consent is required pursuant to
this Agreement and any waiver of the terms hereof shall be effective only in the
specific instance and for the specific purpose given.
10.6 Successors and Assigns. All covenants and agreements contained
herein shall be binding upon, and inure to the benefit of, each of the parties
hereto and the successors and assigns of each, all as herein provided. The
agreements contained in Section 9.1 shall inure to the benefit of United and its
successors and assigns.
10.7 Headings. The headings of the various Articles and Sections herein
and in the table of contents hereto are for convenience of reference only and
shall not define or limit any of the terms or provisions hereof.
10.8 Counterpart Form. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same agreement.
10.9 Subordination. (a) As between the Liquidity Providers, on the one
hand, and the Trustees and the Certificateholders, on the other hand, and as
among the Trustees and the related Certificateholders, this Agreement shall be a
subordination agreement for purposes of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Bankruptcy Code, as amended from time to time.
(b) Notwithstanding the provisions of this Agreement, if prior
to the payment in full to the Liquidity Providers of all Liquidity Obligations
then due and payable, any party hereto shall have received any payment or
distribution in respect of Notes or any other amount under the Indentures or
other Operative Agreements which, had the subordination provisions of this
Agreement been properly applied to such payment, distribution or other amount,
would not have been distributed to such Person, then such payment, distribution
or other amount shall be received and held in trust by such Person and paid over
or delivered to the Subordination Agent for application as provided herein.
(c) If any Trustee, any Liquidity Provider or the
Subordination Agent receives any payment in respect of any obligations owing
hereunder (or, in the case of the Liquidity Providers, in respect of the
Liquidity Obligations), which is subsequently invalidated, declared
preferential, set aside and/or required to be repaid to a trustee, receiver or
other party, then, to the extent of such payment, such obligations (or, in the
case of the Liquidity Providers, such Liquidity Obligations) intended to be
satisfied shall be revived and continue in full force and effect as if such
payment had not been received.
58
63
[2000-2 Intercreditor Agreement]
(d) The Trustees (on behalf of themselves and the holders of
Certificates), the Liquidity Providers and the Subordination Agent confirm that
the payment priorities specified in Sections 2.4, 3.2 and 3.3 shall apply in all
circumstances, notwithstanding the fact that the obligations owed to the
Trustees and the holders of Certificates are secured by certain assets and the
Liquidity Obligations are not so secured. Each Trustee expressly agrees (on
behalf of itself and the holders of Certificates) not to assert priority over
the holders of Liquidity Obligations due to their status as secured creditors in
any bankruptcy, insolvency or other legal proceeding.
(e) Each of the Trustees (on behalf of itself and the holders
of Certificates), the Liquidity Providers and the Subordination Agent may take
any of the following actions without impairing its rights under this Agreement:
(i) obtain a Lien on any property to secure any
amounts owing to it hereunder, including, in the case of the Liquidity
Providers, the Liquidity Obligations,
(ii) obtain the primary or secondary obligation of
any other obligor with respect to any amounts owing to it hereunder,
including, in the case of the Liquidity Providers, any of the Liquidity
Obligations,
(iii) renew, extend, increase, alter or exchange any
amounts owing to it hereunder, including, in the case of the Liquidity
Providers, any of the Liquidity Obligations, or release or compromise
any obligation of any obligor with respect thereto,
(iv) refrain from exercising any right or remedy, or
delay in exercising such right or remedy, which it may have, or
(v) take any other action which might discharge a
subordinated party or a surety under applicable law;
provided, however, that the taking of any such actions by any of the
Trustee, the Liquidity Providers or the Subordination Agent shall not
prejudice the rights or adversely affect the obligations of any other
party under this Agreement.
10.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW)), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
10.11 Submission to Jurisdiction; Waiver of Jury Trial; Waiver of
Indemnity.
59
64
[2000-2 Intercreditor Agreement]
(a) Each of the parties hereto hereby irrevocably and
unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement or any other Operative
Agreement, or for recognition and enforcement of any judgment in
respect hereof or thereof, to the non-exclusive general jurisdiction of
the courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and the appellate courts
from any thereof;
(ii) consents that any such action or proceeding may
be brought in such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such
action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of
mail), postage prepaid, to each party hereto at its address set forth
in Section 10.3, or at such other address of which the other person
shall have been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the
right to effect service of process in any other manner permitted by law
or shall limit the right to xxx in any other jurisdiction.
(b) EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING ESTABLISHED,
including contract claims, tort claims, breach of duty claims and all other
common law and statutory claims. Each of the parties warrants and represents
that it has reviewed this waiver with its legal counsel, and that it knowingly
and voluntarily waives its jury trial rights following consultation with such
legal counsel. THIS WAIVER IS IRREVOCABLE, AND CANNOT BE MODIFIED EITHER ORALLY
OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
(c) Each Liquidity Provider hereby waives any immunity it may
have from the jurisdiction of the courts of the United States or of any state
thereof and waives any immunity any of its properties located in the United
States may have from attachment or execution upon a judgment entered by any such
court under the United States Foreign Sovereign Immunities Act of 1976 or any
similar successor legislation.
60
65
[2000-2 Intercreditor Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized, as of the
day and year first above written, and acknowledge that this Agreement has been
made and delivered in the City of Chicago, and this Agreement has become
effective only upon such execution and delivery.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee for each of the
Trusts
By: /s/ XXXX X. XXXXXXX
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
as Class A-1 Liquidity Provider,
Class A-2 Liquidity Provider,
Class B Liquidity Provider and
Class C Liquidity Provider
By: /s/ XXXXXXXX XXXXXX
-----------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Managing Director
By: /s/ XXXXXX XXXXXX
-----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Associate Director
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity
except as expressly set forth herein
but solely as Subordination Agent
By: /s/ XXXX X. XXXXXXX
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
61
66
[2000-2 Intercreditor Agreement]
SCHEDULE 1
INDENTURES
1. Trust Indenture and Mortgage (2000-2 A319-1) between United Air
Lines, Inc. (the "Company") and State Street Bank and Trust Company of
Connecticut, National Association, in its individual capacity and as Indenture
Trustee.
2. Trust Indenture and Mortgage (2000-2 A319-2) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
3. Trust Indenture and Mortgage (2000-2 A319-3) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee
4. Trust Indenture and Mortgage (2000-2 A319-4) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
5. Trust Indenture and Mortgage (2000-2 A319-5) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee
6. Trust Indenture and Mortgage (2000-2 A319-6) between the Company and
State Street Bank and Trust Company of Connecticut, National Association in its
individual capacity and as Indenture Trustee.
7. Trust Indenture and Mortgage (2000-2 A319-7) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
8. Trust Indenture and Mortgage (2000-2 A319-8) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
62
67
[2000-2 Intercreditor Agreement]
9. Trust Indenture and Mortgage (2000-2 A319-9) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
10. Trust Indenture and Mortgage (2000-2 A319-10) between the Company
and State Street Bank and Trust Company of Connecticut, National Association, in
its individual capacity and as Indenture Trustee.
11. Trust Indenture and Mortgage (2000-2 A319-11) between the Company
and State Street Bank and Trust Company of Connecticut, National Association, in
its individual capacity and as Indenture Trustee.
12. Trust Indenture and Mortgage (2000-2 A319-12) between the Company
and State Street Bank and Trust Company of Connecticut, National Association, in
its individual capacity and as Indenture Trustee.
13. Trust Indenture and Mortgage (2000-2 A320-1) between the Company
and State Street Bank and Trust Company of Connecticut, National Association, in
its individual capacity and as Indenture Trustee.
14. Trust Indenture and Mortgage (2000-2 A320-2) between the Company
and State Street Bank and Trust Company of Connecticut, National Association, in
its individual capacity and as Indenture Trustee.
15. Trust Indenture and Mortgage (2000-2 A320-3) between the Company
and State Street Bank and Trust Company of Connecticut, National Association, in
its individual capacity and as Indenture Trustee.
16. Trust Indenture and Mortgage (2000-2 A320-4) between the Company
and State Street Bank and Trust Company of Connecticut, National Association, in
its individual capacity and as Indenture Trustee.
17. Trust Indenture and Mortgage (2000-2 A320-5) between the Company
and State Street Bank and Trust Company of Connecticut, National Association, in
its individual capacity and as Indenture Trustee.
18. Trust Indenture and Mortgage (2000-2 A320-6) between the Company
and State Street Bank and Trust Company of Connecticut, National Association, in
its individual capacity and as Indenture Trustee.
63
68
[2000-2 Intercreditor Agreement]
19. Trust Indenture and Mortgage (2000-2 757-1) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
20. Trust Indenture and Mortgage (2000-2 757-2) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
21. Trust Indenture and Mortgage (2000-2 757-3) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
22. Trust Indenture and Mortgage (2000-2 757-4) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
23. Trust Indenture and Mortgage (2000-2 757-5) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
24. Trust Indenture and Mortgage (2000-2 757-6) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
25. Trust Indenture and Mortgage (2000-2 757-7) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
26. Trust Indenture and Mortgage (2000-2 747-1) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
27. Trust Indenture and Mortgage (2000-2 747-2) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
28. Trust Indenture and Mortgage (2000-2 747-3) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
64
69
[2000-2 Intercreditor Agreement]
29. Trust Indenture and Mortgage (2000-2 777-1) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
30. Trust Indenture and Mortgage (2000-2 777-2) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
31. Trust Indenture and Mortgage (2000-2 777-3) between the Company and
State Street Bank and Trust Company of Connecticut, National Association in its
individual capacity and as Indenture Trustee.
32. Trust Indenture and Mortgage (2000-2 777-4) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
33. Trust Indenture and Mortgage (2000-2 777-5) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
34. Trust Indenture and Mortgage (2000-2 777-6) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
35. Trust Indenture and Mortgage (2000-2 777-7) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
36. Trust Indenture and Mortgage (2000-2 777-8) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
37. Trust Indenture and Mortgage (2000-2 777-9) between the Company and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity and as Indenture Trustee.
65
