EXHIBIT 4.13
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747 LEASED EQUIPMENT
NOTE PURCHASE AGREEMENT
Dated as of July 31, 2000
between
STATE STREET BANK AND TRUST COMPANY,
as Owner Trustee under the 747 Leased Aircraft
Trust Agreement,
BANCBOSTON UNITED LEASING LLC,
as Owner Participant under the 747 Leased Aircraft
Trust Agreement,
UNITED AIR LINES, INC.
and
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Pass Through Trustee under each of the
United Airlines 2000-1 Pass Through Trust Agreements,
Subordination Agent and Indenture Trustee
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TABLE OF CONTENTS
Page
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SECTION 1. Purchase of 747 Leased Equipment Notes.................................................. 3
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SECTION 1.A. Certain Definitions..................................................................... 4
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SECTION 1.B. Redemption of Outstanding Equipment Notes............................................... 4
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SECTION 2. Lease Amendment......................................................................... 4
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SECTION 3. Conditions Precedent.................................................................... 4
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SECTION 4. Representations, Warranties and Covenants of SSBTC, the Owner Trustee and United........ 10
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SECTION 5. Representations, Warranties and Covenants of Other Parties.............................. 13
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SECTION 6. Notices................................................................................. 18
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SECTION 7. Expenses................................................................................ 18
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SECTION 8. Miscellaneous........................................................................... 18
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SCHEDULES
Schedule I Names, Addresses and Wire Instructions
Schedule II United Equipment Notes, Purchasers and Purchase Prices
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747 LEASED EQUIPMENT NOTE PURCHASE AGREEMENT
This 747 LEASED EQUIPMENT NOTE PURCHASE AGREEMENT, dated as of July 31,
2000 (this "Agreement"), among STATE STREET BANK AND TRUST COMPANY, a
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Massachusetts trust company ("SSBTC"), not in its individual capacity, except as
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expressly provided herein, but solely as owner trustee (in such capacity, the
"Owner Trustee") under the 747 Leased Aircraft Trust Agreement (as defined
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below), BANCBOSTON UNITED LEASING LLC, as owner participant (in such capacity,
the "Owner Participant") under the 747 Leased Aircraft Trust Agreement (as
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defined below), UNITED AIR LINES, INC., a Delaware corporation ("United"), and
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STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a
national banking association (the "Bank"), not in its individual capacity,
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except as otherwise expressly provided herein, but solely as trustee (in such
capacity, the "Pass Through Trustee") under each of the five separate Pass
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Through Trust Agreements (as defined below), subordination agent (in such
capacity, the "Subordination Agent"), and indenture trustee (in such capacity,
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the "Indenture Trustee") under the 747 Leased Aircraft Indenture (as defined
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below).
WHEREAS, the Owner Trustee, as trustee of an owner trust (the "Owner
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Trust") for the benefit of the Owner Participant created under the Trust
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Agreement (1989 I), dated as of July 20, 2000 (the "747 Leased Aircraft Trust
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Agreement"), in connection with a leveraged lease transaction with the Owner
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Participant, wishes to refinance the current indebtedness of the Owner Trust
originally incurred by the Owner Participant to finance the purchase of one
Boeing 747-422 aircraft (the "Leased Aircraft") that has been leased to United;
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WHEREAS, the Owner Participant assigned to the Owner Trustee, and the Owner
Trustee assumed, certain rights and obligations of the Owner Participant under
the Operative Documents pursuant to the Assignment and Assumption Agreement
(1989 I) dated as of July 20, 2000 (the "747 Leased Aircraft Assignment and
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Assumption Agreement");
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WHEREAS, pursuant to the First Amended and Restated Trust Indenture and
Security Agreement (1989 I), dated as of July 20, 2000 (the "747 Leased
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Aircraft Indenture"), between SSBTC, as Owner Trustee, and the Indenture
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Trustee, as originally executed or as modified, amended or supplemented in
accordance with the provisions thereof, the Owner Trustee proposes to issue on a
non-recourse basis, up to three series of equipment notes (the "747 Leased
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Equipment Notes"), all of which are to be secured by the mortgage and security
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interest in the Leased Aircraft and an assignment to the Indenture Trustee of
certain of the Owner Trustee's rights under the First Amended and Restated Lease
Agreement (1989 I), dated as of July 20, 2000 (the "747 Leased Aircraft Lease
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Agreement"), between the Owner Trustee and United;
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WHEREAS, Series A-1 747 Leased Equipment Notes, Series B 747 Leased
Equipment Notes, and Series C-2 747 Leased Equipment Notes with respect to the
Leased Aircraft (each, a "Series") will be issued on the Closing Date (as
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defined in Section 1 below) to the Subordination
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Agent acting on behalf of the Pass Through Trustee for the applicable Pass
Through Trust as evidence of the Owner Trustee's indebtedness to the Pass
Through Trustee;
WHEREAS, pursuant to each of the Pass Through Trust Supplements (the "Trust
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Supplements"; and together with the Basic Pass Through Trust Agreement, the
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"Pass Through Trust Agreements"), on the Closing Date (as defined in Section 1
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below), a separate grantor trust (each, a "Pass Through Trust") will be created
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to facilitate certain of the transactions contemplated hereby, including,
without limitation, the issuance and sale of enhanced pass through certificates
pursuant thereto (collectively, the "Pass Through Certificates") to provide the
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financing of the Leased Aircraft;
WHEREAS, part of the proceeds from the issuance and sale of the Pass
Through Certificates will be applied by the Subordination Agent, acting on
behalf of the Pass Through Trustee, to purchase from the Owner Trustee on behalf
of each Pass Through Trust, the 747 Leased Equipment Notes bearing the same
interest rate as the Pass Through Certificates issued by the related Pass
Through Trust; and
WHEREAS, concurrently with the execution and delivery of this Agreement,
(i) Landesbank Hessen-Thuringen Girozentrale, a public law banking institution
organized under the law of Germany (the "Liquidity Provider") entered into three
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revolving credit agreements (each, a "Liquidity Facility") for the benefit of
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the United Airlines 2000-1A-1 Pass Through Trust, the United Airlines 2000-1A-2
Pass Through Trust, and the United Airlines 2000-1B Pass Through Trust, with the
Subordination Agent, as agent and trustee for the Pass Through Trustee on behalf
of each such Pass Through Trust; and (ii) the Pass Through Trustee, the
Liquidity Provider and the Subordination Agent entered into the Intercreditor
Agreement, dated as of the date hereof (the "Intercreditor Agreement");
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NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
SECTION 1. Purchase of 747 Leased Equipment Notes. (a) Subject
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to the satisfaction or waiver of the conditions set forth herein, on July 31,
2000, or on such other date agreed to by the parties hereto (the "Closing
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Date"):
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(1) the Pass Through Trustee for each Pass Through Trust shall
pay to the Indenture Trustee, on behalf of the Owner Trustee, the purchase
price set forth on Schedule II for each 747 Leased Equipment Note being
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issued and sold by the Owner Trustee to such Pass Through Trust; and
(2) the Owner Trustee shall issue, pursuant to Article II of the
747 Leased Aircraft Indenture to the Subordination Agent, on behalf of the
Pass Through Trustee for each of the Pass Through Trusts, a 747 Leased
Equipment Note having the Series, maturity date and principal amount and
bearing the interest rate set forth on Schedule II opposite the name of
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such Pass Through Trust.
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(b) All payments pursuant to Section 1(a)(i) shall be made in
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immediately available funds to such accounts and at such banks as the Owner
Trustee shall designate on Schedule I or as it may otherwise designate in
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writing not less than one Business Day prior to the Closing Date.
SECTION 1.A. Certain Definitions. (a) As used in this Agreement and
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unless otherwise expressly provided, the following capitalized terms shall have
the following respective meanings:
"FAA" means the Federal Aviation Administration.
"Federal Aviation Act" means Title 49 of the United States Code
(Transportation), as amended.
"Fundamental Documents" shall mean, collectively (i) any document that
is an "Operative Document," a "Pass Through Document" or a
"Fundamental Document" under this Agreement, any 747 Leased Equipment
Note, the 747 Leased Aircraft Lease Agreement, the 747 Leased Aircraft
Participation Agreement, the 747 Leased Aircraft Assignment and
Assumption Agreement or the 747 Leased Aircraft Indenture and (ii) any
amendment to any of the foregoing executed in connection with the
transactions contemplated hereby.
"Operative Documents" shall mean any document that is an Operative
Document under the 747 Leased Aircraft Indenture.
(b) Unless otherwise specifically defined herein, capitalized terms
used in this Agreement shall have the respective meanings specified in the
Intercreditor Agreement.
SECTION 1.B. Redemption of Outstanding Equipment Notes. The
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Indenture Trustee, on behalf of the Owner Trustee, shall apply the purchase
price received for the 747 Leased Equipment Notes to the redemption of the
outstanding leased equipment notes (the "Existing Leased Equipment Notes") in
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accordance with Section 2.01 of the 747 Leased Aircraft Indenture.
SECTION 2. Lease Amendment. Concurrently with the redemption of
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the Existing Leased Equipment Notes pursuant to Section 1.B hereof, United and
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the Owner Trustee shall enter into an amendment to the 747 Leased Aircraft Lease
Agreement, substantially in the form of Exhibit A hereto (the "Lease
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Amendment"), pursuant to which Xxxxxxxx X, X-0, C and D of the 747 Leased
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Aircraft Lease Agreement shall be replaced with Exhibits B, B-1, C and D hereto.
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SECTION 3. Conditions Precedent. (a) Conditions Precedent to the
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Obligations of the Pass Through Trustee. The obligation of the Pass Through
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Trustee to make the payments described in Section 1(a)(i) and to enter into the
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Fundamental Documents to which it is
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a party are subject to the fulfillment, on or prior to the Closing Date, of the
following conditions precedent:
(1) No change shall have occurred after the date of the
execution and delivery of this Agreement in applicable law or regulations
thereunder or interpretations thereof by appropriate regulatory or judicial
authorities which, in the opinion of each Pass Through Trustee, would make
it a violation of law or regulations for the Pass Through Trustee to make
the payments described in Section 1(a), to execute, deliver and perform the
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Fundamental Documents, to acquire the 747 Leased Equipment Notes or to
realize the security afforded by the 747 Leased Aircraft Indenture.
(2) The Owner Trustee shall have tendered the 747 Leased
Equipment Notes to the Indenture Trustee for authentication and the
Indenture Trustee shall have authenticated such 747 Leased Equipment Notes
and shall have tendered the 747 Leased Equipment Notes to the Subordination
Agent on behalf of the Pass Through Trustee in accordance with Section 1.
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(3) The Pass Through Trustee shall have received duly authorized
and validly executed counterparts or conformed copies of the following
documents in form and substance satisfactory to the Pass Through Trustee
and all such documents shall be in full force and effect:
(1) this Agreement;
(2) the Basic Pass Through Trust Agreement and each Trust
Supplement;
(3) the Intercreditor Agreement;
(4) the Liquidity Facility for each of the Class A-1 Trust,
the Class A-2 Trust, and the Class B Trust;
(5) the 747 Leased Aircraft Indenture;
(6) the 747 Leased Aircraft Participation Agreement;
(7) the 747 Leased Aircraft Trust Agreement;
(8) the 747 Leased Aircraft Lease Agreement;
(9) the Amended and Restated Guaranty, dated as of July 20,
2000 (the "747 Leased Aircraft Owner Participant Guaranty Agreement")
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by Fleet
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National Bank and a letter from Fleet National Bank confirming that
the Pass Through Trustee is entitled to the benefits thereof;
(10) the 747 Leased Aircraft Assignment and Assumption
Agreement;
(11) acknowledgment copies of properly completed
precautionary Uniform Commercial Code financing statements (and any
amendments thereto) reflecting United as debtor, the Owner Trustee as
secured party and the Indenture Trustee as assignee of the Owner
Trustee filed with the Secretary of State of Illinois;
(L) each Loan Certificate Purchase Agreement (as defined in
the AFE Indenture);
(M) the Swap Agreement;
(N) the AFE Indenture;
(O) the AFE Notes;
(P) the Leveraged Lease Documents with respect to the
Leased Aircraft;
(Q) the United Equipment Indentures (as defined in the
United Equipment Note Purchase Agreement);
(R) the AFE Trust Agreement (as defined in the AFE Note
Purchase Agreement);
(S) the Owned Aircraft Indentures;
(T) each Assignment Agreement (as defined in the AFE Note
Purchase Agreement);
(U) the AFE Note Purchase Agreement;
(V) the United Equipment Note Purchase Agreement;
(W) each AFE Certificate Purchase Agreement (as defined in
the AFE Note Purchase Agreement);
(X) the Underwriting Agreement;
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(Y) the Class C-1 Certificate Purchase Agreement; and
(Z) the Class C-2 Certificate Purchase Agreement.
(4) Uniform Commercial Code financing statements covering all
the security interests created by or pursuant to the Granting Clause of the
747 Leased Aircraft Indenture shall have been executed and delivered by the
Owner Trustee and the Indenture Trustee, and such financing statements
shall have been duly filed with the Secretary of State of the State of
Massachusetts and any other places deemed necessary or advisable.
(5) The Pass Through Trustee shall have received the following,
in each case in form and substance satisfactory to it:
(1) a certified copy of the Restated Certificate of
Incorporation and By-Laws of United and a copy of resolutions of the
board of directors of United or the executive committee thereof,
certified by the Secretary or an Assistant Secretary of United, duly
authorizing the execution, delivery and performance by United of this
Agreement and each other Fundamental Document required to be executed
and delivered by United in accordance with the provisions hereof and
thereof;
(2) a copy of the organizational documents, by-laws and
general authorizing resolutions of the boards of directors (or
executive committees) or other satisfactory evidence of authorization
of each of the Indenture Trustee, the Owner Trustee and the
Subordination Agent, certified as of the Closing Date by the Secretary
or an Assistant Secretary of such parties, respectively, which
authorize the execution, delivery and performance by the Indenture
Trustee, the Owner Trustee and the Subordination Agent, respectively,
of all the Fundamental Documents to which it is a party, together with
such other documents and evidence with respect to the Indenture
Trustee, the Owner Trustee and the Subordination Agent as the Pass
Through Trustee may reasonably request in order to establish the
consummation of the transactions contemplated by this Agreement, the
taking of all corporate proceedings in connection therewith and
compliance with the conditions herein set forth;
(3) a copy of the organizational documents and by-laws,
certified as of the Closing Date by the Secretary or Assistant
Secretary of the Owner Participant, with such other documents and
evidence with respect to the Owner Participant as the Pass Through
Trustee may reasonably request in order to establish the consummation
of the transactions contemplated by this Agreement, the taking of all
corporate proceedings in connection therewith and compliance with the
conditions herein set forth; and
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(4) a certificate signed by the Secretary or an Assistant
Secretary of United, the Owner Trustee, the Indenture Trustee, the
Owner Participant and the Subordination Agent as to the Person or
Persons authorized to execute and deliver this Agreement and any other
Fundamental Document to be executed on behalf of such party in
connection with the transactions contemplated hereby and as to the
signature of such Person or Persons.
(6) On the Closing Date, (A) the representations and warranties
of SSBTC and the Owner Trustee contained in Section 4, the representations
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and warranties of United contained in Section 4 and the representations and
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warranties of the Indenture Trustee and the Subordination Agent contained
in Section 5 shall be true and correct in all material respects as though
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made on and as of such date except to the extent that such representations
and warranties relate solely to an earlier date (in which case such
representations and warranties shall have been true and correct in all
material respects on and as of such earlier date), and (B) no event shall
have occurred and be continuing, or would result from the transactions
contemplated hereby, which constitutes (or would, with the passage of time
or the giving of notice or both, constitute) an Indenture Default under and
as defined in the 747 Leased Aircraft Indenture.
(7) The Pass Through Trustee shall have received an opinion
addressed to the Pass Through Trustee from (A) the General Counsel or
Assistant General Counsel for United (B) Vedder, Price, Xxxxxxx & Kammholz,
special counsel for United, and (C) Xxxxx, Xxxxx & Xxxxx, special counsel
for United, in each case with respect to such matters and in form and
substance reasonably satisfactory to the Pass Through Trustee.
(8) The Pass Through Trustee shall have received an opinion
addressed to the Pass Through Trustee from Xxxxxxx & Xxxxxxx LLP, special
counsel for the Owner Trustee, with respect to such matters and in form and
substance reasonably satisfactory to the Pass Through Trustee.
(9) The Pass Through Trustee shall have received an opinion
addressed to the Pass Through Trustee, United and the Owner Trustee from
(A) in house German counsel for the Liquidity Provider, in each case in
form and substance reasonably satisfactory to the Pass Through Trustee, and
(B) Winthrop, Stimson, Xxxxxx & Xxxxxxx, special counsel for the Liquidity
Provider.
(10) The Pass Through Trustee shall have received an opinion
addressed to the Pass Through Trustee, United and the Owner Trustee from
Xxxxx Xxxxx & Xxxxxx, special counsel in Oklahoma City, Oklahoma, in form
and substance reasonably satisfactory to the Pass Through Trustee.
(11) The Pass Through Trustee shall have received an opinion
addressed to the Pass Through Trustee, United and the Owner Trustee from
Xxxxxxx Xxxx LLP,
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special counsel for the Indenture Trustee and the Pass Through Trustee, in
form and substance reasonably satisfactory to the Pass Through Trustee.
(12) The Pass Through Trustee shall have received an opinion
addressed to the Pass Through Trustee, United and the Owner Trustee from
(A) internal counsel for the Owner Participant, and (B) Xxxxxx Xxxx &
Priest LLP, special counsel for the Owner Participant, in each case in form
and substance reasonably satisfactory to the Pass Through Trustee.
(13) The Pass Through Trustee shall have received an independent
insurance broker's report, and certificates of insurance, in form and
substance reasonably satisfactory to it, as to the due compliance with the
terms of Section 11 of the 747 Leased Aircraft Lease Agreement.
(14) The Pass Through Trustee shall have received a report from
each of the Appraisers as to the base value of the Leased Aircraft, in form
and substance satisfactory to the Pass Through Trustee, United and the
Owner Trustee.
(15) The conditions precedent to the transactions specified in
the Underwriting Agreement shall have been satisfied (or waived) in
accordance with the terms thereof.
(16) The 747 Leased Aircraft Indenture, the 747 Lease Aircraft
Lease Agreement, the 747 Leased Aircraft Trust Agreement and the 747 Leased
Aircraft Assignment and Assumption Agreement shall have been duly filed
with the FAA.
(17) The Indenture Trustee shall have received the chattel paper
original counterpart of the 747 Leased Aircraft Lease Agreement and the
Lease Supplement (as defined therein).
(18) The conditions precedent under the United Equipment Note
Purchase Agreement, the Loan Certificate Purchase Agreements (as defined in
the AFE Indenture) and the AFE Note Purchase Agreement shall have been
satisfied (or waived) in accordance with the terms thereof.
(19) United and the Owner Trustee shall have given notice of the
exercise of the option to acquire title to the Leased Aircraft pursuant to
Section 19 of the Lease Agreement dated as of July 29, 1989 between SBF
West Air Co., Ltd., as lessor, and United, as lessee.
(20) The Pass Through Trustee shall have received, concurrent
with the receipt by the holders of the Existing Leased Equipment Notes of
the purchase price
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therefor pursuant to Section 1.B. hereof, a copy of the receipt and release
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of indebtedness in respect of each Existing Leased Equipment Note.
(21) The Indenture Trustee shall have received the Existing
Leased Equipment Notes for cancellation upon confirmation by the holders of
the Existing Leased Equipment Notes of receipt of the purchase price
therefor pursuant to Section 1.B. hereof.
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(22) All consents, approvals, authorizations, notices, filings
and other actions required under the Operative Documents or Japanese law in
connection with the execution and delivery of the 747 Leased Aircraft
Assignment and Assumption Agreement and the performance of the transactions
contemplated thereby have been obtained, given or taken.
(23) No event shall have occurred and be continuing that
constitutes a Default (as defined in the 747 Leased Aircraft Lease
Agreement) or an Indenture Default (as defined in the 747 Leased Aircraft
Indenture) and no event shall have occurred that constitutes or would, with
the passage of time or the giving of notice, or both, constitute an Event
of Loss (as defined in the 747 Leased Aircraft Lease Agreement).
Promptly upon the recording of the 747 Leased Aircraft Indenture, the 747 Leased
Aircraft Lease Agreement, the 747 Leased Aircraft Trust Agreement and the 747
Leased Aircraft Assignment and Assumption Agreement pursuant to the Federal
Aviation Act, United shall cause Xxxxx Xxxxx & Xxxxxx, special counsel in
Oklahoma City, Oklahoma, to deliver to the Pass Through Trustee an opinion as to
the due recording thereof and the lack of any intervening filings with respect
to the Leased Aircraft.
(b) [Reserved.]
SECTION 4. Representations, Warranties and Covenants of SSBTC,
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the Owner Trustee and United. (a) SSBTC, in its individual capacity
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represents and warrants to United, the Owner Participant, the Indenture
Trustees, the Pass Through Trustee and the Subordination Agent that:
(i) SSBTC is a Massachusetts trust company duly organized and
validly existing in good standing under the laws of The Commonwealth of
Massachusetts and has, or had on the respective dates of execution thereof,
the corporate power and authority to enter into and perform this Agreement,
the 747 Leased Equipment Notes and each other Fundamental Document to which
it is a party;
(ii) each of this Agreement, the 747 Leased Equipment Notes and
each other Fundamental Document to which SSBTC or the Owner Trustee is a
party has been duly authorized by all necessary corporate action, and
neither the execution and delivery thereof nor the performance by SSBTC or
the Owner Trustee of any of the
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terms and conditions of this Agreement, such 747 Leased Equipment Notes or
such other Fundamental Documents to which SSBTC or the Owner Trustee is a
party will violate any federal or Massachusetts law or regulation relating
to its banking or trust powers or contravene or result in any breach of, or
constitute any default under, its charter or by-laws or the provisions of
any indenture, mortgage, contract or other agreements to which it is a
party or by which its properties may be bound or affected;
(iii) each of the Fundamental Documents to which SSBTC or the
Owner Trustee is a party will have been duly executed and delivered by it
by one of its officers who is duly authorized to execute and deliver such
Fundamental Documents, and each of this Agreement and the other Fundamental
Documents to which SSBTC or the Owner Trustee is a party will, on the
Closing Date, constitute a legal, valid and binding obligation of SSBTC or
the Owner Trustee, as the case may be, enforceable against it in accordance
with the terms thereof, except as the same may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general principles of
equity, whether considered in a proceeding at law or in equity;
(iv) the Trust Estate (as defined in the 747 Leased Aircraft
Trust Agreement) is free and clear of Lessor Liens (as defined in the 747
Leased Aircraft Indenture) attributable to SSBTC, and there are no Liens
affecting the title of the Owner Trustee to the Leased Aircraft resulting
from any act or claim against SSBTC or the Owner Trustee arising out of any
event or condition not related to the ownership, leasing, use or operation
of the Leased Aircraft or to any other transaction contemplated by this
Agreement or any of the other Fundamental Documents, including any Lien
resulting from the nonpayment by SSBTC of any Taxes imposed or measured by
its net income;
(v) there has not occurred any event that constitutes (or to
the best of its knowledge, with the passage of time or the giving of notice
or both, would constitute) an Indenture Default under and as defined in the
747 Leased Aircraft Indenture that has been caused by or relates to SSBTC
or the Owner Trustee and that is presently continuing;
(vi) the principal place of business of SSBTC and the Owner
Trustee is Boston, Massachusetts, and the place where its records
concerning the Leased Aircraft and all its interest in, to and under all
documents relating to the Trust Estate (as defined in the 747 Leased
Aircraft Trust Agreement) is located at Boston, Massachusetts, and SSBTC
agrees that it will not change the location of such office to a location
outside Boston, Massachusetts without providing written notice to United,
the Indenture Trustees and the Pass Through Trustee within 30 days
following such change in location;
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(vii) no consent, approval, order or authorization of, giving of
notice to, or registration or filing with, or taking of any other action in
respect of, any Massachusetts state or local governmental authority or
agency or any United States federal governmental authority or agency
regulating the banking or trust powers of SSBTC is required for the
execution and delivery of, or the carrying out by, SSBTC, of any of the
transactions contemplated by any of the Fundamental Documents to which
SSBTC is or is to be a party, other than any such consent, approval, order,
authorization, registration, notice or action as has been duly obtained,
given or taken;
(viii) SSBTC has not directly or indirectly offered any Pass
Through Certificate or 747 Leased Equipment Note or any interest in or to
the Trust Estate (as defined in the 747 Leased Aircraft Trust Agreement),
the 747 Leased Aircraft Trust Agreement or any similar interest for sale
to, or solicited any offer to acquire any of the same from, any Person
other than the Indenture Trustee, the Pass Through Trustee and the Owner
Participant; and SSBTC has not authorized any Person to act on its behalf
(other than for purposes of this paragraph, United, as lessee of the Leased
Aircraft) to offer directly or indirectly any Pass Through Certificate or
747 Leased Equipment Note or any interest in and to the Trust Estate (as
defined in the 747 Leased Aircraft Trust Agreement), the 747 Leased
Aircraft Trust Agreement or any similar interest for sale to, or to solicit
any offer to acquire any of the same from, any Person;
(ix) SSBTC is a "citizen of the United States" as defined in 49
U.S.C. Section 40102(a)(15) (without making use of a voting trust
agreement, voting powers agreement or similar arrangements); and
(x) there are no pending or threatened actions or proceedings
against SSBTC or the Owner Trustee before any court or administrative
agency which, if determined adversely to it, would have a material adverse
effect on the ability of SSBTC or the Owner Trustee, as the case may be, to
perform its obligations under this Agreement, the 747 Leased Equipment
Notes or any other Fundamental Document executed by SSBTC or the Owner
Trustee in connection with the transactions contemplated by the Fundamental
Documents.
(b) SSBTC solely in its capacity as Owner Trustee further represents
and warrants that:
(i) assuming due authorization, execution and delivery of the
747 Leased Aircraft Trust Agreement and the 747 Leased Aircraft
Participation Agreement by the Owner Participant, the 747 Leased Aircraft
Trust Agreement grants the Owner Trustee the power and authority to enter
into this Agreement, the 747 Leased Equipment Notes and the other
Fundamental Documents to which it is a party and to perform its obligations
hereunder and thereunder;
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(ii) assuming due authorization, execution and delivery of the
747 Leased Aircraft Trust Agreement and the 747 Leased Aircraft
Participation Agreement by the Owner Participant, this Agreement, the 747
Leased Equipment Notes and each other Fundamental Document to which the
Owner Trustee is party has been, or on the Closing Date will have been,
duly executed and delivered by it, and each of this Agreement, such 747
Leased Equipment Notes and such other Fundamental Documents to which the
Owner Trustee is a party on the Closing Date, will constitute legal, valid
and binding obligations of the Owner Trustee, enforceable against it in
accordance with the terms thereof, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the rights of creditors generally and by general principles
of equity, whether considered in a proceeding at law or in equity;
(iii) the Owner Trustee has not directly or indirectly offered
any Pass Through Certificate or 747 Leased Equipment Note or any interest
in or to the Trust Estate (as defined in the 747 Leased Aircraft Trust
Agreement), the 747 Leased Aircraft Trust Agreement or any similar interest
for sale to, or solicited any offer to acquire any of the same from, any
Person other than the Indenture Trustee, the Pass Through Trustee and the
Owner Participant; and it has not authorized any Person to act on its
behalf (other than for purposes of this paragraph, United, as lessee of the
Leased Aircraft) to offer directly or indirectly any Pass Through
Certificate or 747 Leased Equipment Note or any interest in and to the
Trust Estate (as defined in the 747 Leased Aircraft Trust Agreement), the
747 Leased Aircraft Trust Agreement or any similar interest for sale to, or
to solicit any offer to acquire any of the same from, any Person;
(iv) there are no pending or threatened actions or proceedings
against the Owner Trustee before any court or administrative agency which,
if determined adversely to it, would have a material adverse effect on its
ability to perform its obligations under this Agreement, the 747 Leased
Equipment Notes or any other Fundamental Document to which the Owner
Trustee is a party or any other documents executed by it in connection with
the transactions contemplated by the Fundamental Documents; and
(v) No event shall have occurred and be continuing, or would
result from the transactions contemplated hereby, which constitutes (or
would, with the passage of time or the giving of notice or both,
constitute) an Indenture Default under the 747 Leased Aircraft Indenture.
(c) United represents and warrants to the Pass Through Trustee,
the Owner Trustee, the Owner Participant, the Indenture Trustee and the
Subordination Agent that the representations and warranties of United contained
in the 747 Leased Aircraft Participation Agreement are true and correct in all
material respects as of the Closing Date
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as though made on and as of such date except to the extent that such
representations and warranties relate solely to an earlier date (in which
event such representations and warranties were true and correct in all
material respects as of such earlier date).
SECTION 5. Representations, Warranties and Covenants of Other
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Parties. Each of the parties below represents, warrants and covenants to each
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of the other parties to this Agreement as follows:
(1) The Indenture Trustee represents, warrants and covenants that:
(1) the Indenture Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States of America, is a "citizen of the United States" as defined in
49 U.S.C. Section 40102(a)(15) (without making use of a voting trust
agreement, voting powers agreement or similar arrangements) and will resign
as Indenture Trustee promptly after it obtains actual knowledge that it has
ceased to be such a citizen, and has, or had on the respective dates of
execution thereof, the full corporate power, authority and legal right
under the laws of the State of Connecticut and the United States of America
pertaining to its banking, trust and fiduciary powers to execute and
deliver this Agreement and each other Fundamental Document to which it is a
party, to authenticate the 747 Leased Equipment Notes and to carry out its
obligations under this Agreement and each other Fundamental Document to
which it is a party;
(2) the execution and delivery by the Indenture Trustee of this
Agreement and each other Fundamental Document to which it is a party, the
authentication of the 747 Leased Equipment Notes and the performance by the
Indenture Trustee of its obligations under this Agreement and each other
Fundamental Document to which it is a party have been duly authorized by
the Indenture Trustee and will not violate its charter or by-laws, the
provisions of any indenture, mortgage, contract or other agreement to which
it is a party or by which it is bound or any federal or Connecticut law or
regulation relating to the banking, trust or fiduciary powers of the
Indenture Trustee;
(3) this Agreement and each other Fundamental Document to which
the Indenture Trustee is a party have been duly authorized, executed and
delivered by the Indenture Trustee; this Agreement constitutes, and each
Fundamental Document to which the Indenture Trustee is a party, when it has
been executed and delivered by the Indenture Trustee, will constitute, the
legal, valid and binding obligations of the Indenture Trustee enforceable
against it in accordance with their respective terms, except as the same
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally and
by general principles of equity, whether considered in a proceeding at law
or in equity;
(4) no consent, approval, order or authorization of, giving of
notice to, or registration or filing with, or taking of any other action in
respect of, any Connecticut state
13
or local governmental authority or agency or any United States federal
governmental authority or agency regulating the banking or trust powers of
the Indenture Trustee is required for the execution and delivery of, or the
carrying out by, the Indenture Trustee, of any of the transactions
contemplated by any of the Fundamental Documents to which the Indenture
Trustee is or is to be a party, other than any such consent, approval,
order, authorization, registration, notice or action as has been duly
obtained, given or taken;
(5) there are no pending or threatened actions or proceedings
against the Indenture Trustee before any court or administrative agency
which, if determined adversely to it, would have a material adverse effect
on the ability of the Indenture Trustee to perform its obligations under
this Agreement or any other Fundamental Document executed by the Indenture
Trustee in connection with the transactions contemplated by the Fundamental
Documents;
(6) the Indenture Trustee has taken possession of the chattel
paper original counterpart of the 747 Leased Aircraft Lease Agreement and
the Lease Supplement; and
(vii) No event shall have occurred and be continuing, or would
result from the transactions contemplated hereby, which constitutes (or
would, with the passage of time or the giving of notice or both,
constitute) an Indenture Default under the 747 Leased Aircraft Indenture.
(2) The Pass Through Trustee represents, warrants and covenants that:
(1) the Pass Through Trustee is a national banking association
duly organized, validly existing and in good standing under the laws of the
United States of America, and has the full corporate power, authority and
legal right under the laws of the State of Connecticut and the United
States of America pertaining to its banking, trust and fiduciary powers to
execute and deliver this Agreement and each other Fundamental Document to
which it is a party and to perform its obligations hereunder and
thereunder;
(2) this Agreement and each other Fundamental Document to which
the Pass Through Trustee is a party have been duly authorized, executed and
delivered by the Pass Through Trustee; this Agreement and each other
Fundamental Document to which the Pass Through Trustee is a party
constitute the legal, valid and binding obligations of the Pass Through
Trustee enforceable against it in accordance with their respective terms,
except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity, whether considered
in a proceeding at law or in equity;
(3) none of the execution, delivery and performance by the Pass
Through Trustee of this Agreement or any other Fundamental Document to
which the Pass Through
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Trustee is a party, the purchase by the Pass Through Trustee of the 747
Leased Equipment Notes pursuant to this Agreement, or the issuance and sale
of the Pass Through Certificates pursuant to the Pass Through Trust
Agreements, and the Underwriting Agreements, contravenes any law, rule or
regulation of the State of Connecticut or any United States governmental
authority or agency regulating the Pass Through Trustee's banking, trust or
fiduciary powers or any judgment or order applicable to or binding on the
Pass Through Trustee and do not contravene or result in any breach of, or
constitute a default under, the Pass Through Trustee's charter or by-laws
or any agreement or instrument to which the Pass Through Trustee is a party
or by which it or any of its properties may be bound;
(4) neither the execution and delivery by the Pass Through
Trustee of this Agreement or any of the other Fundamental Documents to
which the Pass Through Trustee is a party, nor the consummation by the Pass
Through Trustee of any of the transactions contemplated hereby or thereby,
requires the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action with respect to, any
Connecticut governmental authority or agency or any Federal governmental
authority or agency regulating the Pass Through Trustee's banking, trust or
fiduciary powers;
(5) there are no Taxes payable by the Pass Through Trustee
imposed by the State of Connecticut or any political subdivision or taxing
authority thereof in connection with the execution, delivery and
performance by the Pass Through Trustee of this Agreement or any other
Fundamental Document to which the Pass Through Trustee is a party (other
than franchise or other taxes based on or measured by any fees or
compensation received by the Pass Through Trustee for services rendered in
connection with the transactions contemplated by the Pass Through Trust
Agreements), and there are no Taxes payable by the Pass Through Trustee
imposed by the State of Connecticut or any political subdivision thereof in
connection with the acquisition, possession or ownership by the Pass
Through Trustee of any of the 747 Leased Equipment Notes (other than
franchise or other taxes based on or measured by any fees or compensation
received by the Pass Through Trustee for services rendered in connection
with the transactions contemplated by the Pass Through Trust Agreements);
(6) there are no pending or threatened actions or proceedings
against the Pass Through Trustee before any court or administrative agency
which individually or in the aggregate, if determined adversely to it,
would have a material adverse effect on the ability of the Pass Through
Trustee to perform its obligations under this Agreement or any other
Fundamental Document to which the Pass Through Trustee is a party;
(7) except for the issue and sale of the 747 Leased Equipment
Notes contemplated hereby, the Pass Through Trustee has not directly or
indirectly offered any 747 Leased Equipment Notes for sale to any Person or
solicited any offer to acquire any 747 Leased Equipment Notes from any
Person, nor has the Pass Through Trustee authorized anyone to act on its
behalf to offer directly or indirectly any Equipment Note for sale to any
15
Person, or to solicit any offer to acquire any Equipment Note from any
Person; and the Pass Through Trustee is not in default under any Pass
Through Trust Agreement; and
(8) the Pass Through Trustee is not directly or indirectly
controlling, controlled by or under common control with the Owner Trustee
or United.
(3) The Subordination Agent represents, warrants and covenants that:
(1) the Subordination Agent is a national banking association
duly organized, validly existing and in good standing under the laws of the
United States of America, and has the full corporate power, authority and
legal right under the laws of the State of Connecticut and the United
States of America pertaining to its banking, trust and fiduciary powers to
execute and deliver this Agreement and each other Fundamental Document to
which it is a party and to perform its obligations hereunder and
thereunder;
(2) this Agreement and each other Fundamental Document to which
it is a party have been duly authorized, executed and delivered by the
Subordination Agent; this Agreement and each other Fundamental Document to
which it is a party constitute the legal, valid and binding obligations of
the Subordination Agent enforceable against it in accordance with their
respective terms, except as the same may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general principles of
equity, whether considered in a proceeding at law or in equity;
(3) none of the execution, delivery and performance by the
Subordination Agent of this Agreement or any other Fundamental Document to
which the Subordination Agent is a party contravene any law, rule or
regulation of the State of Connecticut or any United States governmental
authority or agency regulating the Subordination Agent's banking, trust or
fiduciary powers or any judgment or order applicable to or binding on the
Subordination Agent and does not contravene or result in any breach of, or
constitute a default under, the Subordination Agent's charter or by-laws or
any agreement or instrument to which the Subordination Agent is a party or
by which it or any of its properties may be bound;
(4) neither the execution and delivery by the Subordination
Agent of this Agreement or any other Fundamental Document to which the
Subordination Agent is a party nor the consummation by the Subordination
Agent of any of the transactions contemplated hereby or thereby requires
the consent or approval of, the giving of notice to, the registration with,
or the taking of any other action with respect to, any Connecticut
governmental authority or agency or any federal governmental authority or
agency regulating the Subordination Agent's banking, trust or fiduciary
powers;
16
(5) there are no Taxes payable by the Subordination Agent
imposed by the State of Connecticut or any political subdivision or taxing
authority thereof in connection with the execution, delivery and
performance by the Subordination Agent of this Agreement or any other
Fundamental Document to which the Subordination Agent is a party (other
than franchise or other taxes based on or measured by any fees or
compensation received by the Subordination Agent for services rendered in
connection with the transactions contemplated by the Intercreditor
Agreement or any Liquidity Facility), and there are no Taxes payable by the
Subordination Agent imposed by the State of Connecticut or any political
subdivision thereof in connection with the acquisition, possession or
ownership by the Subordination Agent of any of the 747 Leased Equipment
Notes (other than franchise or other taxes based on or measured by any fees
or compensation received by the Subordination Agent for services rendered
in connection with the transactions contemplated by the Intercreditor
Agreement or any Liquidity Facility);
(6) there are no pending or threatened actions or proceedings
against the Subordination Agent before any court or administrative agency
which individually or in the aggregate, if determined adversely to it,
would materially adversely affect the ability of the Subordination Agent to
perform its obligations under this Agreement or any other Fundamental
Document to which the Subordination Agent is a party;
(7) the Subordination Agent has not directly or indirectly
offered any 747 Leased Equipment Notes for sale to any Person or solicited
any offer to acquire any 747 Leased Equipment Notes from any Person, nor
has the Subordination Agent authorized anyone to act on its behalf to offer
directly or indirectly any Equipment Note for sale to any Person, or to
solicit any offer to acquire any Equipment Note from any Person; and the
Subordination Agent is not in default under any Liquidity Facility; and
(8) the Subordination Agent is not directly or indirectly
controlling, controlled by or under common control with the Owner Trustee
or United.
SECTION 6. Notices. Unless otherwise specifically provided
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herein, all notices required or permitted by the terms of this Agreement shall
be in English and in writing, and any such notice shall become effective five
days after being deposited in the United States mail, with proper postage for
first-class registered or certified mail prepaid, or when delivered personally
or, if promptly confirmed by mail as provided above, when dispatched by
facsimile or other written telecommunication, addressed, if to the Owner
Trustee, the Pass Through Trustee, the Subordination Agent or the Indenture
Trustee, at their respective addresses or facsimile numbers set forth on
Schedule 1.
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SECTION 7. Expenses. All of the reasonable out-of-pocket costs,
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fees and expenses incurred by the Owner Trustee, the Pass Through Trustee, the
Owner Participant, the Subordination Agent, the Liquidity Provider and the
Indenture Trustee in connection with the
17
transactions contemplated by this Agreement shall be paid on or prior to the
Closing Date by United on a net after-tax basis.
SECTION 8. Miscellaneous. (a) Provided that the transactions
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contemplated hereby have been consummated, and except as otherwise provided for
herein, the representations, warranties and agreements herein of United, the
Owner Trustee, the Indenture Trustee, the Subordination Agent and the Pass
Through Trustee, and United's, the Owner Trustee's, the Indenture Trustee's, the
Subordination Agent's and the Pass Through Trustee's obligations hereunder,
shall survive the expiration or other termination of this Agreement and the
other agreements referred to herein.
(b) This Agreement may be executed in any number of counterparts and
each counterpart of this Agreement, including a signature page executed by each
of the parties hereto, shall be an original counterpart of this Agreement, but
all of such counterparts together shall constitute one instrument. Neither this
Agreement nor any of the terms hereof may be terminated, amended or waived
orally, but only by an instrument in writing signed by the party against which
the enforcement of the termination, amendment or waiver is sought; and no such
termination, amendment or waiver shall be effective unless a signed copy thereof
shall have been delivered to the Indenture Trustee. The table of contents
preceding this Agreement and the headings of the various Sections of this
Agreement are for convenience of reference only and shall not modify, define,
expand or limit any of the terms or provisions hereof. The terms of this
Agreement shall be binding upon, and shall inure to the benefit of, United and
its successors and permitted assigns, the Owner Trustee and its successors as
Owner Trustee, the Pass Through Trustee and its successors as Pass Through
Trustee (and any additional trustee properly appointed) under any of the Trust
Supplements, the Indenture Trustee and its successors as Indenture Trustee (and
any additional Indenture Trustee properly appointed) under the 747 Leased
Aircraft Indenture and the Subordination Agent and its successors as
Subordination Agent under the Intercreditor Agreement. The terms of this
Agreement shall be binding upon and shall inure to the benefit of the Owner
Participant and its successors and permitted assigns.
(c) This Agreement is not intended to, and shall not, provide any
Person not a party hereto with any rights of any nature whatsoever against any
of the parties hereto, and no Person not a party hereto shall have any right,
power or privilege in respect of, or have any benefit or interest arising out
of, this Agreement; provided, however, that each of the parties hereto agrees
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and acknowledges that the Liquidity Provider shall be a third party beneficiary
of each of the representations and warranties made herein by such party, and
that the Liquidity Provider may rely on such representations and warranties to
the same extent as if such representations and warranties were made to the
Liquidity Provider directly. The terms of this Agreement shall inure to the
benefit of the Liquidity Provider, its successors and permitted assigns.
(d) Each of the parties hereto hereby agrees that, upon satisfaction
of the conditions precedent set forth in Section 3(a) hereof and the purchase by
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the Pass Through Trustee of the 747 Leased Equipment Notes, the Pass Through
Trustee shall be deemed a party to the 747
18
Leased Aircraft Participation Agreement and a direct beneficiary of the
representations, warranties, covenants and indemnities contained therein to the
same extent as if a party thereto. Each of the parties hereto hereby further
agrees and acknowledges that each of the Pass Through Trustee, the Subordination
Agent and the AFE Indenture Trustee shall be a third party beneficiary of each
of the representations and warranties made in the 747 Leased Aircraft Assignment
and Assumption Agreement by the Owner Trustee and the Owner Participant, and
that each such Person may rely on such representations and warranties to the
same extent as if such representations and warranties were made to each such
Person directly.
(e) Each of the parties hereto agrees that the opinions delivered on
behalf of such party to the Pass Through Trustee shall be addressed to, among
others, the Owner Participant.
(f) 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.
(g) Each of the parties hereto hereby irrevocably and
unconditionally:
(1) submits for itself and its property in any legal action or
proceeding relating to this 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;
(2) 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;
(3) 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 Schedule I, or at such
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other address of which the other Person shall have been notified pursuant
thereto; and
(4) 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.
(h) EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
19
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.
(i) The Owner Participant, by executing and delivering this
Agreement, authorizes and directs the Owner Trustee to enter into this Agreement
and the Lease Amendment.
[signature pages follow]
20
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.
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity, except as otherwise
provided herein, but solely as Owner Trustee
By:________________________________________________
Name:
Title:
S-1
BANCBOSTON UNITED LEASING LLC, as Owner Participant
By:________________________________________________
Name:
Title:
S-2
UNITED AIR LINES, INC.
By:______________________________________
Name:
Title:
X-0
XXXXX XXXXXX BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity, except as otherwise
provided herein, but solely as Indenture Trustee, Pass
Through Trustee and Subordination Agent
By:___________________________________________________
Name:
Title:
S-4
SCHEDULE I to
747 Leased Equipment Note Purchase Agreement
NAMES; ADDRESSES AND WIRE INSTRUCTIONS
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OWNER TRUSTEE:
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Address for Notices:
U.S. Mail:
---------
X.X. Xxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Corporate Trust Department
Overnight Courier:
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0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Corporate Trust Department
Telecopy: (000) 000-0000
Confirmation: (000) 000-0000
PASS THROUGH TRUSTEE, SUBORDINATION AGENT AND INDENTURE TRUSTEE:
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Address for Notices:
State Street Bank and Trust Company
of Connecticut, National Association
000 Xxxxxx Xxxxxx
Xxxxxxx Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Telecopy: (000) 000-0000
and
State Street Bank and Trust Company
of Connecticut, National Association
c/o 0 Xxxxxx xx Xxxxxxxxx, 0/xx/ Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Corporate Trust
Telecopy: (000) 000-0000
SCHEDULE II to
747 Leased Equipment Note Purchase Agreement
747 LEASED EQUIPMENT NOTES,
PURCHASERS AND PURCHASE PRICE
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[To be completed by VPKK]
Series Purchaser Interest Rate Principal Amount
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