Exhibit 4.2
TRUST SUPPLEMENT
NO. 2009-1A-S
dated as of October 13,
2009
between
WILMINGTON TRUST
COMPANY
as Trustee,
and
UNITED AIR LINES,
INC.
to
PASS THROUGH TRUST
AGREEMENT
dated as of June 26, 2007
$659,107,000
United Air Lines Pass Through Trust
2009-1A-S
United Air Lines
Pass Through Certificates,
Series 2009-1A-S
Vedder Price
P.C.
Chicago,
Illinois
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
Page
|
|
ARTICLE I
|
|
THE
CERTIFICATES
|
|
2
|
|
Section 1.01.
|
|
The
Certificates
|
|
2
|
|
|
|
|
ARTICLE II
|
|
DEFINITIONS
|
|
3
|
|
Section 2.01.
|
|
Definitions
|
|
3
|
|
|
|
|
ARTICLE III
|
|
DISTRIBUTIONS;
STATEMENTS TO CERTIFICATEHOLDERS; TRANSFERS
|
|
8
|
|
Section 3.01.
|
|
Statements to Applicable
Certificateholders
|
|
8
|
|
Section 3.02.
|
|
Special Payments
Account
|
|
10
|
|
Section 3.03.
|
|
Transfer of Escrow
Receipt
|
|
10
|
|
|
|
|
ARTICLE IV
|
|
DEFAULT
|
|
10
|
|
Section 4.01.
|
|
Purchase Rights of
Certificateholders
|
|
10
|
|
|
|
|
ARTICLE V
|
|
THE
TRUSTEE
|
|
12
|
|
Section 5.01.
|
|
Acquisition of Trust
Property
|
|
12
|
|
Section 5.02.
|
|
[Intentionally
Omitted]
|
|
13
|
|
Section 5.03.
|
|
The Trustee
|
|
13
|
|
Section 5.04.
|
|
Representations and
Warranties of the Trustee
|
|
13
|
|
Section 5.05.
|
|
Trustee Liens
|
|
14
|
|
|
|
|
ARTICLE VI
|
|
ADDITIONAL
AMENDMENT; SUPPLEMENTAL AGREEMENTS
|
|
14
|
|
Section 6.01.
|
|
Amendment of Section
5.02 of the Basic Agreement
|
|
14
|
|
Section 6.02.
|
|
Supplemental Agreements
Without Consent of Applicable Certificateholders
|
|
14
|
|
Section 6.03.
|
|
Supplemental Agreements
with Consent of Applicable Certificateholders
|
|
15
|
|
Section 6.04.
|
|
Consent of Holders of
Certificates Issued under Additional Trust
|
|
15
|
|
|
|
|
ARTICLE VII
|
|
TERMINATION OF
TRUST
|
|
15
|
|
Section 7.01.
|
|
Termination of the
Applicable Trust
|
|
15
|
|
|
|
|
ARTICLE VIII
|
|
MISCELLANEOUS
PROVISIONS
|
|
16
|
|
Section 8.01.
|
|
Basic Agreement
Ratified
|
|
16
|
|
Section 8.02.
|
|
GOVERNING LAW
|
|
16
|
|
Section 8.03.
|
|
Execution in
Counterparts
|
|
17
|
|
Section 8.04.
|
|
Intention of
Parties
|
|
17
|
i
THIS TRUST SUPPLEMENT
NO. 2009-1A-S ,
dated as of October 13, 2009 (herein called the “
Trust Supplement ”), between United Air Lines, Inc., a
Delaware corporation (the “ Company ”), and
Wilmington Trust Company (the “ Trustee ”), to
the Pass Through Trust Agreement, dated as of June 26, 2007,
between the Company and the Trustee (the “ Basic
Agreement ”).
W I T N E S
S E T H :
WHEREAS , the Basic Agreement, unlimited as to the
aggregate principal amount of Certificates (unless otherwise
specified herein, capitalized terms used herein without definition
having the respective meanings specified in the Basic Agreement)
which may be issued thereunder, has heretofore been executed and
delivered;
WHEREAS , as of the Transfer Date (as defined below),
the Company will have financed the acquisition of all or a portion
of such Aircraft through separate secured loan transactions, under
which the Company owns such Aircraft (collectively, the “
Aircraft ”);
WHEREAS , as of the Transfer Date, in the case of each
Aircraft, the Company will have issued pursuant to an Indenture, on
a recourse basis, Equipment Notes to finance a portion of the
purchase price of such Aircraft;
WHEREAS , as of the Transfer Date, the Related Trustee
will assign, transfer and deliver all of such trustee’s
right, title and interest to the trust property held by the Related
Trustee to the Trustee pursuant to the Assignment and Assumption
Agreement (as defined below);
WHEREAS , the Trustee, effective only, but
automatically, upon execution and delivery of the Assignment and
Assumption Agreement, will be deemed to have declared the creation
of the United Air Lines Pass Through Trust 2009-1A-S (the “
Applicable Trust ”) for the benefit of the Applicable
Certificateholders, and the initial Applicable Certificateholders
as the grantors of the Applicable Trust, by their respective
acceptances of the Applicable Certificates, join in the creation of
the Applicable Trust with the Trustee;
WHEREAS , all Certificates deemed issued by the
Applicable Trust will evidence fractional undivided interests in
the Applicable Trust and will convey no rights, benefits or
interests in respect of any property other than the Trust Property
except for those Certificates to which an Escrow Receipt has been
affixed;
WHEREAS , upon the execution and delivery of the
Assignment and Assumption Agreement, all of the conditions and
requirements necessary to make this Trust Supplement, when duly
executed and delivered, a valid, binding and legal instrument in
accordance with its terms and for the purposes herein expressed,
have been done, performed and fulfilled, and the execution and
delivery of this Trust Supplement in the form and with the terms
hereof have been in all respects duly authorized;
WHEREAS , this Trust Supplement is subject to the
provisions of the Trust Indenture Act of 1939, as amended, and
shall, to the extent applicable, be governed by such
provisions;
NOW THEREFORE
, in consideration of the premises
herein, it is agreed between the Company and the Trustee as
follows:
ARTICLE I
THE CERTIFICATES
Section 1.01. The
Certificates . The
Applicable Certificates shall be known as “United Air Lines
Pass Through Certificates, Series 2009-1A-S”. Each Applicable
Certificate represents a fractional undivided interest in the
Applicable Trust created hereby. The Applicable Certificates shall
be the only instruments evidencing a fractional undivided interest
in the Applicable Trust.
The terms and conditions applicable
to the Applicable Certificates are as follows:
(a) The aggregate principal amount
of the Applicable Certificates that shall be authenticated under
the Agreement (except for Applicable Certificates authenticated and
delivered under Sections 3.03, 3.04, 3.05 and 3.06 of the
Basic Agreement) is $659,107,000.
(b) The Regular Distribution Dates
with respect to any payment of Scheduled Payments means May 1
and November 1 of each year, commencing on May 1, 2010,
until payment of all of the Scheduled Payments to be made under the
Equipment Notes has been made.
(c) The Special Distribution Dates
with respect to the Applicable Certificates means any Business Day
on which a Special Payment is to be distributed pursuant to the
Agreement.
(d) At the Escrow Agent’s
request under the Escrow Agreement, the Trustee shall affix the
corresponding Escrow Receipt to each Applicable Certificate. In any
event, any transfer or exchange of any Applicable Certificate shall
also effect a transfer or exchange of the related Escrow Receipt.
Prior to the Final Withdrawal Date, no transfer or exchange of any
Applicable Certificate shall be permitted unless the corresponding
Escrow Receipt is attached thereto and also is so transferred or
exchanged. By acceptance of any Applicable Certificate to which an
Escrow Receipt is attached, each Holder of such an Applicable
Certificate acknowledges and accepts the restrictions on transfer
of the Escrow Receipt set forth herein and in the Escrow
Agreement.
(e) (i) The Applicable Certificates
shall be in the form attached as Exhibit A to the Related Pass
Through Trust Supplement, with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by the Related Pass Through Trust Agreement or the
Agreement, as the case may be, or as the Trustee may deem
appropriate, to reflect the fact that the Applicable Certificates
are being issued under the Agreement as opposed to under the
Related Pass Through Trust Agreement. Any Person acquiring or
accepting an Applicable Certificate or an interest therein will, by
such acquisition or acceptance, be deemed to represent and warrant
to and for the benefit of the Company that either (i) the
assets of an employee benefit plan subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended
(“ ERISA ”), or of a plan subject to
Section 4975 of the
2
Internal Revenue Code of 1986, as amended (the
“ Code ”), have not been used to purchase or
hold Applicable Certificates or an interest therein or
(ii) the purchase and holding of Applicable Certificates or an
interest therein is exempt from the prohibited transaction
restrictions of ERISA and the Code pursuant to one or more
prohibited transaction statutory or administrative exemptions. In
addition, the Applicable Certificates will bear a legend regarding
ERISA compliance matters.
(ii) The Applicable Certificates
shall be Book-Entry Certificates and shall be subject to the
conditions set forth in the Letter of Representations between the
Company and the Clearing Agency attached as Exhibit B to the
Related Pass Through Trust Supplement.
(f) The “Participation
Agreements” as defined in this Trust Supplement are the
“Note Purchase Agreements” referred to in the Basic
Agreement.
(g) The Applicable Certificates are
subject to the Intercreditor Agreement, the Deposit Agreement and
the Escrow Agreement.
(h) The Applicable Certificates are
entitled to the benefits of the Liquidity Facility.
(i) The Equipment Notes to be
acquired and held in the Applicable Trust, and the related Aircraft
and Note Documents, are described in the Note Purchase
Agreement.
ARTICLE II
DEFINITIONS
Section 2.01.
Definitions . For
all purposes of the Basic Agreement as supplemented by this Trust
Supplement, the following capitalized terms have the following
meanings (any capitalized term used herein but not defined shall
have the meaning assigned to it in the Basic Agreement, and any
term used herein which is defined in both this Trust Supplement and
the Basic Agreement shall have the meaning assigned thereto in this
Trust Supplement for purposes of the Basic Agreement as
supplemented by this Trust Supplement):
Agreement
: Means the Basic Agreement, as
supplemented by the Trust Supplement.
Aircraft
: Means each of the Aircraft in
respect of which a Participation Agreement is entered into in
accordance with the Note Purchase Agreement (or any substitute
aircraft, including engines therefor, owned by the Company and
securing one or more Equipment Notes).
Applicable
Certificate : Means
any of the “Applicable Certificates” issued by the
Related Trust and that are “Outstanding” (as defined in
the Related Pass Through Trust Agreement) as of the Transfer Date
(the “ Transfer Date Certificates ”) and any
Certificate issued in exchange therefor or replacement thereof
pursuant to the Agreement.
Applicable
Certificateholder :
Means the Person in whose name an Applicable Certificate is
registered on the Register for the Applicable
Certificates.
3
Applicable Closing
Date : Has the
meaning specified in Section 5.01(b) of this Trust
Supplement.
Applicable Participation
Agreement : Has the
meaning specified in Section 5.01(b) of this Trust
Supplement.
Applicable
Trust : Has the
meaning specified in the recitals hereto.
Assignment and Assumption
Agreement : Means the
assignment and assumption agreement substantially in the form of
Exhibit C to the Related Pass Through Trust Supplement executed and
delivered in accordance with Section 7.01 of the Related Trust
Supplement.
Basic Agreement
: Has the meaning specified in the
first paragraph of this Trust Supplement.
Business Day
: Means any day other than a
Saturday, a Sunday or a day on which commercial banks are required
or authorized to close in Chicago, Illinois, New York, New York,
or, so long as any Applicable Certificate is outstanding, the city
and state in which the Trustee, the Subordination Agent or any
related Loan Trustee maintains its corporate trust office or
receives and disburses funds.
Certificate
: Has the meaning specified in the
Intercreditor Agreement.
Certificate Buyout
Event : Means that a
United Bankruptcy Event has occurred and is continuing and the
following events in either clause (A) or (B) have
occurred: (A) (i) the 60-day period specified in
Section 1110(a)(2)(A) of the U.S. Bankruptcy Code (the “
60-Day Period ”) has expired and (ii) the Company
has not entered into one or more agreements under
Section 1110(a)(2)(A) of the U.S. Bankruptcy Code to perform
all of its obligations under all of the Indentures or, if it has
entered into such agreements, has at any time thereafter failed to
cure any default under any of the Indentures in accordance with
Section 1110(a)(2)(B) of the Bankruptcy Code; or (B) if
prior to the expiry of the 60-Day Period, the Company shall have
abandoned any Aircraft.
Class
: Has the meaning specified in the
Intercreditor Agreement.
Closing Notice
: Has the meaning specified in the
Note Purchase Agreement.
Company
: Has the meaning specified in the
first paragraph of this Trust Supplement.
Controlling
Party : Has the
meaning specified in the Intercreditor Agreement.
Cut-off Date
: Means the earlier of (a) the
Deposit Period Termination Date and (b) the date on which a
Triggering Event occurs.
Deposit
Agreement : Means the
Deposit Agreement dated as of October 13, 2009 relating to the
Applicable Certificates between the Depositary and the Escrow
Agent, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
4
Deposit Period Termination
Date : Has the
meaning specified in the Related Pass Through Trust
Supplement.
Depositary
: Means JPMorgan Chase Bank, N.A., a
national banking association chartered under the laws of the United
States.
Deposits
: Has the meaning specified in the
Deposit Agreement.
Distribution
Date : Means any
Regular Distribution Date or Special Distribution Date as the
context requires.
Escrow Agent
: Means, initially, Wilmington Trust
Company, and any replacement or successor therefor appointed in
accordance with the Escrow Agreement.
Escrow
Agreement : Means the
Escrow and Paying Agent Agreement dated as of October 13, 2009
relating to the Applicable Certificates, among the Escrow Agent,
the Escrow Paying Agent, the Related Trustee (and after the
Transfer Date, the Trustee) and Underwriters, as the same may be
amended, supplemented or otherwise modified from time to time in
accordance with its terms.
Escrow Paying
Agent : Means the
Person acting as paying agent under the Escrow
Agreement.
Escrow Receipt
: Means the receipt substantially in
the form annexed to the Escrow Agreement representing a fractional
undivided interest in the funds held in escrow
thereunder.
Final Maturity
Date : Means
November 1, 2016.
Final
Withdrawal : Has the
meaning specified in the Escrow Agreement.
Final Withdrawal
Date : Has the
meaning specified in the Escrow Agreement.
Final Withdrawal
Notice : Has the
meaning specified in Section 5.02 of this Trust
Supplement.
Indenture
: Means each of the separate trust
indentures and mortgages relating to the Aircraft, each as
specified or described in a Closing Notice delivered pursuant to
the Note Purchase Agreement or the related Participation Agreement,
in each case as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
Intercreditor
Agreement : Means the
Intercreditor Agreement dated as of October 13, 2009 among the
Related Trustee (and after the Transfer Date, the Trustee), the
Liquidity Provider and Wilmington Trust Company, as Subordination
Agent and as trustee thereunder, as amended, supplemented or
otherwise modified from time to time in accordance with its
terms.
Investors
: Means the Underwriters, together
with all subsequent beneficial owners of the Applicable
Certificates.
5
Liquidity
Facility : Means,
initially, the Revolving Credit Agreement dated as of
October 13, 2009 relating to the Applicable Certificates,
between the Liquidity Provider and Wilmington Trust Company, as
Subordination Agent, as agent and trustee for the Applicable Trust,
and, from and after the replacement of such agreement pursuant to
the Intercreditor Agreement, the replacement liquidity facility
therefor, in each case as amended, supplemented or otherwise
modified from time to time in accordance with their respective
terms.
Liquidity
Provider : Means,
initially, Morgan Stanley Bank, N.A., a national banking
association chartered under the laws of the United States, and any
replacements or successors therefor appointed in accordance with
the Intercreditor Agreement.
Note Documents
: Means the Equipment Notes with
respect to the Applicable Certificates and, with respect to any
such Equipment Note, the Indenture, the Parent Guarantee and the
Participation Agreement relating to such Equipment Note.
Note Purchase
Agreement : Means the
Note Purchase Agreement dated as of October 13, 2009 among the
Related Trustee (and after the Transfer Date, the Trustee), the
Company, the Escrow Agent, the Escrow Paying Agent and the
Subordination Agent, providing for, among other things, the
purchase of Equipment Notes by the Trustee on behalf of the
Applicable Trust, as the same may be amended, supplemented or
otherwise modified from time to time, in accordance with its
terms.
Notice of Financing
Withdrawal : Has the
meaning specified in the Deposit Agreement.
Other Agreement
: Means the Basic Agreement as
supplemented by a trust supplement relating to the Additional
Trust, if any.
Outstanding
: When used with respect to
Applicable Certificates, means, as of the date of determination,
all Transfer Date Certificates, and all other Applicable
Certificates theretofore authenticated and delivered under the
Agreement, in each case except:
(i) Applicable Certificates
theretofore canceled by the Registrar or delivered to the Trustee
or the Registrar for cancellation;
(ii) Applicable Certificates for
which money in the full amount required to make the final
distribution with respect to such Applicable Certificates pursuant
to Section 11.01 of the Basic Agreement has been theretofore
deposited with the Trustee in trust for the Applicable
Certificateholders as provided in Section 4.01 of the Basic
Agreement pending distribution of such money to such Applicable
Certificateholders pursuant to payment of such final distribution;
and
(iii) Applicable Certificates in
exchange for or in lieu of which other Applicable Certificates have
been authenticated and delivered pursuant to the
Agreement.
Participation
Agreement : Means
each Participation Agreement to be entered into, or entered into
(as the case may be), by the Related Trustee pursuant to the Note
Purchase Agreement, as the same may be amended, supplemented or
otherwise modified in accordance with its terms.
6
Pool Balance
: Means, with respect to the
Applicable Trust or the Applicable Certificates issued by the
Applicable Trust, as of any date, (i) the original aggregate
face amount of the Applicable Certificates less
(ii) the aggregate amount of all payments made as of such date
in respect of such Applicable Certificates or in respect of
Deposits other than payments made in respect of interest or premium
thereon or reimbursement of any costs and expenses incurred in
connection therewith. The Pool Balance as of any date shall be
computed after giving effect to any special distribution with
respect to unused Deposits, the payment of principal, if any, on
the Equipment Notes or payment with respect to other Trust Property
and the distribution thereof to be made on that date.
Prospectus
Supplement : Means
the final Prospectus Supplement dated October 5, 2009 relating
to the offering of the Applicable Certificates.
Ratings
Confirmation : Has
the meaning specified in the Intercreditor Agreement.
Related Pass Through Trust
Agreement : Means the
Basic Agreement as supplemented by the Trust Supplement
No. 2009-1A-O, dated as of the date hereof (the “
Related Pass Through Trust Supplement ”), relating to
the United Air Lines Pass Through Trust 2009-1A-O and entered into
by the Company and the Related Trustee, as amended, supplemented or
otherwise modified from time to time in accordance with its
terms.
Related Trust
: Means United Air Lines Pass
Through Trust, Series 2009-1A-O, formed under the Related Pass
Through Trust Agreement.
Related Trustee
: Means the trustee under the
Related Pass Through Trust Agreement.
Scheduled
Payment : Means, with
respect to any Equipment Note, (i) any payment of principal or
interest on such Equipment Note (other than any such payment which
is not in fact received by the Trustee or any Subordination Agent
within ten (10) Business Days of the date on which such
payment is scheduled to be made) or (ii) any payment of
interest on the Applicable Certificates with funds drawn under the
Liquidity Facility, which payment in any such case represents the
installment of principal on such Equipment Note at the stated
maturity of such installment, the payment of regularly scheduled
interest accrued on the unpaid principal amount of such Equipment
Note, or both; provided , however , that any payment
of principal, premium, if any, or interest resulting from the
redemption or purchase of any Equipment Note shall not constitute a
Scheduled Payment.
Special Payment
: Means any payment (other
tha