WAIVER AND FIFTH AMENDMENT TO REVOLVING CREDIT, TERM LOAN AND GUARANTY AGREEMENT
TO REVOLVING CREDIT, TERM LOAN AND
GUARANTY AGREEMENT
WAIVER AND FIFTH AMENDMENT, dated as of May 15, 2003 (the "Amendment"), to the REVOLVING CREDIT, TERM LOAN AND GUARANTY AGREEMENT, dated as of December 24, 2002, among UNITED AIR LINES, INC., a Delaware corporation (the "Borrower"), a debtor and a debtor-in-possession in a case pending under Chapter 11 of the Bankruptcy Code, UAL CORPORATION, a Delaware corporation and the parent company of the Borrower (the "Parent") and all of the direct and indirect subsidiaries of the Borrower and the Parent signatory thereto (the "Subsidiaries" and together with the Parent, each a "Guarantor" and collectively the "Guarantors"), each of which Guarantors referred to in this paragraph is a debtor and a debtor-in-possession in a case pending under Chapter 11 of the Bankruptcy Code, JPMORGAN CHASE BANK, a New York banking corporation ("JPMorgan Chase"), CITICORP USA, INC., a Delaware corporation ("CUSA"), BANK ONE, NA, a national banking corporation ("Bank One"), THE CIT GROUP/BUSINESS CREDIT, INC., a New York corporation ("CIT Group"), each of the other financial institutions from time to time party hereto (together with JPMorgan Chase, CUSA, Bank One and CIT Group, the "Lenders"), JPMORGAN CHASE BANK and CUSA, as co-administrative agents (together, the "Agents") for the Lenders and JPMORGAN CHASE BANK, as paying agent (in such capacity, the "Paying Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantors, the Lenders, the Paying Agent and the Agents are parties to that certain Revolving Credit, Term Loan and Guaranty Agreement, dated as of December 24, 2002 (as heretofore amended and as the same may be further amended, modified or supplemented from time to time, the "Credit Agreement");
WHEREAS, the Borrower and the Guarantors have requested that from and after the Effective Date (as hereinafter defined) of this Amendment, the Credit Agreement shall be amended as set forth herein subject to and upon the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. As used herein, all terms that are defined in the Credit Agreement shall have the same meanings herein.
2. Waivers. The Lenders hereby waive any Event of Default under Section 7.01(d) of the Credit Agreement or the occurrence of any event which with the passage of time or giving of notice or both would constitute an Event of Default under Section 7.01(d) of the Credit Agreement as a result of each of the following: (i) the Borrower's failure to make certain principal and interest payments in connection with certain Section 1110 Assets; and (ii) the Borrower's and the Guarantors' failure to (x) provide the 45-day notice required by Section 6(c)(iii) of the SGR Agreement for the discontinuation or material modification of service on any Route and the 60-day notice required by Section 6(c)(iii) of the SGR Agreement for the suspension of service on Primary Routes in connection with the temporary suspension of service on the Routes reflected on Schedule 2 attached hereto for the periods set forth on such Schedule and (y) to the extent such provisions are applicable, comply, as a result of such temporary suspension, with any provisions of the Credit Agreement, including, but not limited to, the affirmative covenants set forth in Sections 5.14 and 5.15 of the Credit Agreement with respect to Primary Foreign Slot utilization and Primary Route and Supporting Route Facilities utilization, respectively. The Lenders also hereby waive the Event of Default under Section 7.01(f) of the Credit Agreement as a result of the occurrence of corresponding defaults under the Bank One DIP, provided that the waiver set forth in this sentence shall not become effective until such similar defaults under the Bank One DIP have been waived and each Agent has received evidence satisfactory to it of such waiver.
3. Consent to Suspension of Routes. (a) Notwithstanding anything to the contrary in the Credit Agreement and the SGR Agreement, the Lenders hereby consent to the temporary suspension of service on the Primary Routes reflected on Schedule 2, including the corresponding non-use of the Supporting Route Facilities relating to such Primary Routes, for the periods set forth on such Schedule.
(b) Notwithstanding anything to the contrary in the Credit Agreement and the SGR Agreement, the Lenders hereby consent to the reduced utilization of the Primary Foreign Slots reflected on Schedule 3(b) attached hereto for the period set forth on such Schedule as a result of the temporary suspension of service on the Primary Routes consented to in paragraph 3(a) of this Amendment.
(c) The Lenders hereby authorize the Collateral Agent to execute an amendment to the SGR Agreement (the "SGR Agreement Amendment"), substantially in the form of Exhibit A attached hereto.
4. Amendment to Section 5.04. Section 5.04 of the Credit Agreement is hereby amended by inserting the following proviso at the end thereof: "; and provided, further, however, that this Section shall not be construed to require the Borrower to pay any obligation arising under any agreement with respect to Section 1110 Assets unless the Borrower is compelled by the Bankruptcy Court to make such payment (it being understood that the Borrower shall deliver to the Agents, as soon as available, but no later than 15 days after the end of each fiscal month, a report setting forth, for the immediately preceding month, all payments not made under any Section 1110 Asset agreements that have not yet been rejected)." 5. Amendment to Section 6.01. Section 6.01 of the Credit Agreement is hereby amended by (A) amending clause (xv) thereof in its entirety as follows: "(xv) Liens on cash collateral and fuel inventory (and the proceeds thereof) or Letters of Credit in an aggregate amount not in excess of $50,000,000 for all of such cash, fuel and Letters of Credit securing Indebtedness permitted pursuant to Section 6.03(vi) and (vii);"; (B) deleting the word "and" appearing at the end of clause (xvi); and (C) inserting the following new clause at the end thereof: "; and (xviii) Liens on the Borrower's right to receive a refund of unearned insurance premiums the payment of which is financed by Indebtedness permitted pursuant to Section 6.03(xv) granted in order to secure the Borrower's obligation in respect of such Indebtedness.". 6. Amendment to Section 6.03. Section 6.03 of the Credit Agreement is hereby amended by (A) amending clause (ix) thereof by inserting the following text at the end of sub-clause (A) appearing therein: "unless (1) the interest expense, if any, on any scheduled payments deferred as a result of such refinancing is not paid currently but is recapitalized as principal or (2) such refinancing increases the principal amount of such refinanced Indebtedness but the overall effect on the aggregate amount of existing Indebtedness secured directly or indirectly by "equipment" described in Section 1110(a)(3) of the Bankruptcy Code is reduced, or the financing expenses in connection with all such Indebtedness is reduced (it being understood that any such increase in Indebtedness may not be granted Superpriority Claim status pursuant to Section 364(c)(1) of the Bankruptcy Code),"; (B) deleting the word "and" appearing at the end of clause (xiii); and (C) inserting the following new clause at the end thereof: "; and (xv) Indebtedness of the Borrower owed to one or more Persons in connection with the financing of certain insurance premiums in an aggregate amount not to exceed $20,000,000.". 7. Conditions to Effectiveness. This Amendment shall not become effective until the date (the "Effective Date") on which this Amendment shall have been executed by the Borrower, the Guarantors and the Required Lenders, and each Agent shall have received evidence satisfactory to it of such execution; provided that notwithstanding the occurrence of the Effective Date, the effect of this Amendment shall terminate and be of no further force or effect if (x) on or before June 20, 2003, the Bankruptcy Court shall not have entered an order satisfactory in form and substance to the Agents authorizing the payment by no later than June 20, 2003 by the Borrower (i) to the Paying Agent for the respective account of each Lender that has executed and delivered to each Agent a counterpart of this Amendment by not later than 5:00 p.m. (New York City time) on May 30, 2003, an amendment fee in an amount equal to 1/10 of 1% of such Lender's Tranche A Commitment and Tranche B Commitment on May 30, 2003 and (ii) of other fees referred to in that certain Fifth Amendment Fee Letter dated the date hereof, and (y) such amendment and other fees shall not have been paid in cash to the Paying Agent within one Business Day after entry of the order referred to above.
8. Ratification. Except to the extent hereby amended, the Credit Agreement and each of the Loan Documents remain in full force and effect and are hereby ratified and affirmed.
9. Costs and Expenses. The Borrower agrees that its obligations set forth in Section 10.05 of the Credit Agreement shall extend to the preparation, execution and delivery of this Amendment, including the reasonable fees and disbursements of special counsel to the Agents.
10. References. This Amendment shall be limited precisely as written and shall not be deemed (a) to be a consent granted pursuant to, or a waiver or modification of, any other term or condition of the Credit Agreement or any of the instruments or agreements referred to therein or (b) to prejudice any right or rights which the Agents or the Lenders may now have or have in the future under or in connection with the Credit Agreement or any of the instruments or agreements referred to therein. Whenever the Credit Agreement is referred to in the Credit Agreement or any of the instruments, agreements or other documents or papers executed or delivered in connection therewith, such reference shall be deemed to mean the Credit Agreement as modified by this Amendment.
11. Counterparts. This Amendment may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument. A fax copy of a counterpart signature page shall serve as the functional equivalent of a manually executed copy for all purposes.
12. Applicable
Law. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of New York.
[SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Waiver and Fifth Amendment to be duly executed as of the day and the year first written. BORROWER:
UNITED AIR LINES, INC.
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
GUARANTOR:
UAL CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
GUARANTOR:
UAL LOYALTY SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name:
Title:
GUARANTOR:
UAL COMPANY SERVICES, INC.
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: Vice President and Treasurer
GUARANTOR:
CONFETTI, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name:
Title:
GUARANTOR:
MILEAGE PLUS HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name:
Title:
GUARANTOR:
MILEAGE PLUS MARKETING, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name:
Title:
GUARANTOR:
XXXXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name:
Title:
GUARANTOR:
CYBERGOLD, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name:
Title:
GUARANTOR:
XXXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name:
Title:
GUARANTOR:
MYPOINTS OFFLINE SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name:
Title:
GUARANTOR:
UAL BENEFITS MANAGEMENT, INC.
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: President
GUARANTOR:
UNITED BIZ JET HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name:
Title:
GUARANTOR:
BIZJET CHARTER, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name:
Title:
GUARANTOR:
BIZJET FRACTIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name:
Title:
GUARANTOR:
BIZJET SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name:
Title:
GUARANTOR:
KION LEASING, INC.
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: President
GUARANTOR:
PREMIER MEETING AND TRAVEL SERVICES, INC.
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: Vice President and Treasurer
GUARANTOR:
UNITED AVIATION FUELS CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
GUARANTOR:
UNITED COGEN, INC.
By: /s/ Xxxxxxxxx X. Xxxxx
Name: Xxxxxxxxx X. Xxxxx
Title: Senior Vice President
General Counsel and
Secretary
GUARANTOR:
MILEAGE PLUS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
GUARANTOR:
UNITED GHS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: President
GUARANTOR:
UNITED WORLDWIDE CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: President
GUARANTOR:
UNITED VACATIONS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
GUARANTOR:
FOUR STAR LEASING, INC.
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: President
GUARANTOR:
AIR WIS SERVICES, INC.
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: President
GUARANTOR:
AIR WISCONSIN, INC.
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: President
GUARANTOR:
DOMICILE MANAGEMENT SERVICES, INC.
By: /s/ Xxxxxxxxx X. Xxxxx
Name: Xxxxxxxxx X. Xxxxx
Title: Senior Vice President
General Counsel and Secretary
LENDERS:
JPMORGAN CHASE BANK,
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
CITICORP USA, INC.
By: /s/ Xxxxx X. XxXxxxxx
Name: Xxxxx X. XxXxxxxx
Title: Director and Vice President
BANK ONE, NA,
By: /s/ Xxxxxxx Xxxxxx
Name: /s/ Xxxxxxx Xxxxxx
Title: Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.,
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
ARES LEVERAGED INVESTMENT FUND II, L.P.
By: ARES Management II, L.P.
Its: General Partner
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
ARE VI CLO LTD.
By: ARES CLO GP VI, LLC
Its Management Member
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
ARES VII CLO LTD.
By: ARES CLO Management VII, L.P.,
Investment Manager
By: Ares CLO GP VII, LLC,
Its General Partner
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
AURUM CLO 2002-1 LTD.
By: Columbia Management Advisors, Inc.(f/k/a Xxxxx Xxx & Farnham Incorporated), As Investment Manager
By: /s/ Xxxxxxxx X Xxxx
Name: Xxxxxxxx X Xxxx
Title: Senior Vice President
BANK OF LINCOLNWOOD
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: President/COO
CASPIAN CAPITAL PARTNERS, LP
By: /s/ Xxxxxxx X. Xxxx XX
Name: Xxxxxxx X. Xxxx XX
Title: Treasurer
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxxx X. Catarina
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxx Flecheux
Name: Xxxx Flecheux
Title: First Vice President
DRAWBRIDGE SPECIAL OPPORTUNITIES FUND LP
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Chief Operating Officer
XXXXXXX SACHS CREDIT PARTNERS L.P.
By: /s/ Xxxxxx Xxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxx
Title: Authorized Signatory
GULF STREAM - COMPASS CLO 2002-I, Ltd.
By: Gulf Stream Asset Management, LLC
By: /s/ Xxxxx X. Love
Name: Xxxxx X. Love
Title: Chief Credit Officer
HBK MASTER FUND, L.P.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
XXXXXX'X ISLAND CDO, LTD.
By: CypressTree Investment Management Company, Inc., as Portfolio Manager
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Managing Director
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: Indosuez Capital as Portfolio Advisor
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President
INDOSUEZ CAPITAL FUNDING III, LIMITED
By: Indosuez Capital as Portfolio Advisor
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President
INDOSUEZ CAPITAL FUNDING VI, LIMITED
By: Indosuez Capital as Collateral Manager
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President
LIBERTY FLOATING RATE ADVANTAGE FUND
By: Columbia Management Advisors, Inc.(f/k/a Xxxxx Xxx & Farnham Incorporated), As Advisor
By: /s/ Xxxxxxxx X. Xxxx
Name: Xxxxxxxx X. Xxxx
Title: Senior Vice President
MARINER LDC
By: /s/ Xxxxxxx X. Xxxx XX
Name: Xxxxxxx X. Xxxx XX
Title: Treasurer
MARINER OPPORTUNITIES FUND, LP
By: /s/ Xxxxxxx X. Xxxx XX
Name: Xxxxxxx X. Xxxx XX
Title: Treasurer
MARINER OPPORTUNITIES II, LP
By: /s/ Xxxxxxx X. Xxxx XX
Name: Xxxxxxx X. Xxxx XX
Title: Treasurer
PERRY PRINCIPALS, L.L.C.
By: /s/ X. Xxxxxxx
Name: X. Xxxxxxx
Title: Managing Director
REGIMENT CAPITAL, LTD.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Chief Operating Officer
RIVIERA FUNDING LLC
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
SOF INVESTMENTS, L.P.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: General Counsel
SPECIAL SITUATIONS INVESTING GROUP, INC.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
STANWICH LOAN FUNDING LLC
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
SRF 2003, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
SRF TRADING, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
XXXXX EVENT TRADING LTD.
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Managing Member of the
Investment Manager of Xxxxx
Event Trading Ltd.
With immediate effect from February 18, 2003, Start Event Trading, Ltd.
Expressly requests that it not be provided with any non-public information
(including any non-public portions of the materials described in Section
5.01 of the Revolving Credit, Term Loan and Guarantee Agreement) relating
to Borrower or any Guarantor. Xxxxx Event Trading Ltd. Reserves the
right to revoke this election by providing the Borrower with express written
notice of such revocation.
XXXXX XXX FLOATING RATE
LIMITED LIABILITY COMPANY
By: Columbia Management Advisors, Inc. (f/k/a Xxxxx Xxx & Xxxxxxx Incorporated), As Advisor
By: /s/ Xxxxxxxx X. Xxxx
Name: Xxxxxxxx X. Xxxx
Title: Senior Vice President
STONEHILL INSTITUTIONAL PARTNERS, L.P.
By: /s/ Xxxxxxxxxxx Xxxxxx
Name: Xxxxxxxxxxx Xxxxxx
Title: General Partner
SUN TRUST BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
TORONTO DOMINION (NEW YORK), INC.
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President
TRILOGY PORTFOLIO COMPANY, LLC
By: /s/ Xxxxxxx X. Xxxx XX
Name: Xxxxxxx X Xxxx XX
Title: Treasurer
UAL INVESTORS, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Managing Member
WATERSHED CAPITAL PARTNERS, L.P.
By: WS Partners, L.L.C.
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Senior Managing Member
WATERSHED CAPITAL INSTITUTIONAL PARTNERS, L.P.
By: WS PARTNERS, L.L.C.
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Senior Managing Member
WATERSHED CAPITAL PARTNERS (OFFSHORE) LTD.
By: Watershed Asset Management, L.L.C.
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Senior Managing Member
