FIRST AMENDMENT

EX-4.23 3 dipnine.htm FIRST AMENDMENT

Exhibit 4.23

WAIVER, CONSENT AND NINTH AMENDMENT
TO REVOLVING CREDIT, TERM LOAN AND
GUARANTY AGREEMENT

WAIVER, CONSENT AND NINTH AMENDMENT, dated as of November 5, 2004 (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"), THE CIT GROUP/BUSINESS CREDIT, INC., a New York corporation ("CIT Group"), GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation ("GECC"), each of the other financial institutions from time to time party thereto (together with JPMorgan Chase, CUSA, CIT Group and GECC, 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 Agents and the Paying Agent are parties to that certain Revolving Credit, Term Loan and Guaranty Agreement, dated as of December 24, 2002 (as heretofore amended, modified or supplemented, and as in effect on the date hereof, the "Credit Agreement"); and

WHEREAS, the Borrower and the Guarantors have requested that from and after the Effective Date (as hereinafter defined), the Lenders agree to (i) waive the anticipated Events of Default described in Article II hereof, (ii) consent to the modification of certain mandatory prepayment obligations of the Borrower and (iii) amend the Credit Agreement as set forth in Article IV hereof, all subject to and upon the terms and conditions set forth herein.

NOW, THEREFORE, the parties hereto hereby agree as follows:

ARTICLE I. DEFINITIONS.

1. As used herein, all terms that are defined in the Credit Agreement shall have the same meanings herein.

ARTICLE II. WAIVERS.

2. Waivers. The Lenders hereby waive any Event or Events of Default that might occur as a result of the Borrower's and the Guarantors' anticipated failure to comply with the cumulative consolidated EBITDAR covenant in Section 6.05 of the Credit Agreement for the twelve-month periods ending on October 31, 2004, November 30, 2004 and December 31, 2004.

ARTICLE III. CONSENTS.

3. Consent to Retention of Proceeds. Notwithstanding anything to the contrary set forth in that certain Waiver and Consent Letter, dated as of September 30, 2003, the Lenders hereby agree that the Borrower will not be required to prepay the Loans (and permanently reduce the Total Tranche A Commitment and the Total Tranche B Commitment) with any portion of the proceeds of the Slot Transactions relating to certain Primary Foreign Slots at Heathrow Airport referred to in such Waiver and Consent Letter.

4. Consent to Slot Transactions. The Lenders hereby consent to (i) the consummation by the Borrower of certain transactions relating to Primary Foreign Slots as described in Exhibit A hereto to the extent set forth therein and (ii) the modification of Schedule 1.01(b) to the Credit Agreement and Schedule 4(f) to the SGR Security Agreement as set forth in Exhibit A hereto.

ARTICLE IV. AMENDMENTS.

5. Amendment to Section 2.01(a)(2). Section 2.01(a)(2) of the Credit Agreement is hereby amended by deleting the words "Notwithstanding anything to the contrary in Section 2.01(c), upon" appearing at the beginning thereof and inserting in lieu thereof the word "Upon".

6. Amendment to Section 2.13. Section 2.13(e) of the Credit Agreement is hereby amended by deleting the following from the first sentence thereof: ", (xvi)".

7. Incorporation of New Section 5.23. Section 5 of the Credit Agreement is hereby amended by incorporating the following new Section 5.23 at the end thereof:

SECTION 5.23 Cost Savings Report. On or about December 15, 2004, deliver to the Lenders a status report regarding the Borrower's and the Guarantors' progress in realizing the additional cost savings projected in that certain updated business plan dated November 5, 2004 heretofore delivered
to the Lenders.

8. Amendment to Section 6.11(xvi). Section 6.11(xvi) of the Credit Agreement is hereby amended in its entirety to read as follows:

9. Amendment to Section 6.13. Section 6.13 of the Credit Agreement is hereby amended by deleting the amount "$600,000,000" appearing therein and inserting in lieu thereof the amount of "$750,000,000".

ARTICLE V. MISCELLANEOUS.

10. Conditions to Effectiveness. The waivers set forth in Article II of this Amendment, the consents set forth in Article III and the amendments set forth in Article IV of this Amendment shall not become effective until the date (the "Effective Date") on which the following conditions precedent shall have been satisfied (or waived by the Required Lenders):

(a) Execution. This Amendment shall have been executed by the Borrower, the Guarantors and Lenders constituting Required Lenders, and each Agent shall have received evidence reasonably satisfactory to it of such execution.

(b) Bankruptcy Court Order; Payment of Fees. By no later than November 22, 2004, the Bankruptcy Court shall have entered an order satisfactory in form and substance to the Agents authorizing the payment 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 12:00 noon (New York City time) on November 22, 2004, of an amendment fee in an amount equal to ? of 1% of such Lender's combined Tranche A Commitment and Tranche B Commitment on November 4, 2004 and (ii) of other fees referred to in that certain Ninth Amendment Fee Letter dated the date hereof, and (y) such amendment and other fees shall have been paid in cash to the Paying Agent within one Business Day after entry of the order referred to above.

Upon the Effective Date, any default or Event of Default that may have occurred prior to the Effective Date as a result of the Borrower's consummation of the sale or other disposition by the Borrower of ownership interests which it holds in Orbitz prior to the Effective Date shall be cured and no longer continuing to the extent permitted by Section 6.11(xvi) of the Credit Agreement as amended by this Amendment; provided, that upon the consummation of any such sale prior to the Effective Date, the proceeds of such sale which would be required to be prepaid pursuant to Section 6.11(xvi) of the Credit Agreement without giving effect to the modifications of such sub-section provided for in this Amendment shall be held in an account maintained with the Paying Agent which shall be under the sole and exclusive control of the Paying Agent, and upon the Effective Date, the Paying Agent shall remit the funds maintained in such account to the Borrower.

11. 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.

12. 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.

13. Representations and Warranties. The Borrower represents and warrants to the Lenders that no Event of Default or event that with the passage of time would constitute an Event of Default exists on the date hereof after giving effect to the waiver set forth in Article II hereof, the amendments set forth in Article III hereof and the cure of any Event of Default described in paragraph 10 hereof and that each of the representations and warranties made by the Borrower in the Credit Agreement and each other Loan Document are true and correct in all material respects as of the date hereof except where such representation or warranty relates to a specific date, in which case such representation or warranty shall be true and correct in all material respects as of such date.

14. 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.

15. 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.

16. 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, Consent and Ninth Amendment to be duly executed as of the day and the year first written.

BORROWER:

UNITED AIR LINES, INC.

By: /s/ Frederic F. Brace
Name: Frederic F. Brace
Title: Executive Vice President & CFO

GUARANTORS:

UAL CORPORATION

By: /s/ Frederic F. Brace
Name: Frederic F. Brace
Title: Executive Vice President & CFO

UAL LOYALTY SERVICES, INC.

By: /s/ Steven M. Rasher
Name: Steven M. Rasher
Title: Senior Vice President, General
Counsel & Secretary

UAL COMPANY SERVICES, INC.

By: /s/ Frederic F. Brace
Name: Frederic F. Brace
Title: Vice President and Treasurer

CONFETTI, INC.

By: /s/ Steven M. Rasher
Name: Steven M. Rasher
Title: Senior Vice President, General
Counsel & Secretary

MILEAGE PLUS HOLDINGS, INC.

By: /s/ Steven M. Rasher
Name: Steven M. Rasher
Title: Senior Vice President, General
Counsel & Secretary

MILEAGE PLUS MARKETING, INC.