EXHIBIT 1(a)
DELTA AIR LINES, INC.
Pass Through Certificates, Series 2001-1
UNDERWRITING AGREEMENT
Dated: September 6, 2001
DELTA AIR LINES, INC.
Enhanced Pass Through Certificates, Series 2001-1
UNDERWRITING AGREEMENT
September 6, 2001
Salomon Smith Barney Inc.
J.P. Morgan Securities Inc.
Commerzbank Capital Markets Corp.
Mizuho International plc
SunTrust Capital Markets Inc.
Tokyo-Mitsubishi International plc
Credit Lyonnais Securities (USA) Inc.
KBC Financial Products USA Inc.
c/o Salomon Smith Barney Inc.
390 Greenwich Street
4th Floor
New York, NY 10013
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, NY 10017
Ladies and Gentlemen:
Delta Air Lines, Inc., a Delaware corporation (the "COMPANY"),
proposes that State Street Bank and Trust Company of Connecticut, National
Association ("State Street"), acting not in its individual capacity but solely
as pass through trustee (the "TRUSTEE") under the amended and restated Pass
Through Trust Agreement dated as of November 16, 2000 (the "BASIC AGREEMENT"),
as supplemented for each class of pass through certificates (the "OFFERED PASS
THROUGH CERTIFICATES") to be purchased hereunder (each, an "OFFERED CLASS") by a
Trust Supplement (each, an "OFFERED TRUST SUPPLEMENT"), in each case between the
Company and the Trustee, issue and sell to the Underwriters named in Schedule I
hereto its Offered Pass Through Certificates in the aggregate amounts and with
the applicable interest rates and final expected distribution dates set forth on
Schedule A hereto (the "OFFERED CERTIFICATES") on the terms and conditions
stated herein. The Offered Trust Supplements relate to the creation and
administration of Delta Air Lines Pass Through Trust, Series 2001-1A-1 (the
"CLASS A-1 TRUST"), Series 2001-1A-2 (the "CLASS A-2 TRUST"), Series 2001-1B
(the "CLASS B TRUST") and Series 2001-1C (the "CLASS C TRUST" and, together with
the Class A-1 Trust, Class A-2 Trust and Class B Trust, the "OFFERED TRUSTS").
The Company will also cause State Street, as pass through trustee
under Delta Air Lines Pass Through Trust, Series 2001-1D (the "CLASS D TRUST"
and, together with the Offered Trusts, the "Trusts"), to issue and privately
place its pass through certificates (the "CLASS D CERTIFICATES" and, together
with the Offered Certificates, the "CERTIFICATES"). The Class D Certificates
will be issued pursuant to the Basic Agreement, as supplemented by a Trust
Supplement for the Class D Trust (the "CLASS D TRUST SUPPLEMENT" and, together
with the Offered Trust Supplements, the "Trust Supplements") (the Basic
Agreement, as supplemented by the related Trust Supplement being referred to
herein individually as a "DESIGNATED AGREEMENT"). Concurrently with the issuance
and sale of the Offered Certificates pursuant hereto, all of the Class D
Certificates shall be privately placed with a newly organized Delaware business
trust (the "INITIAL CLASS D HOLDER"), all of the beneficial interests in which
will be initially owned by the Company and/or its affiliates. The Initial Class
D Holder will be established pursuant to a trust agreement to be entered into
between the Company (and/or its affiliates) and Wilmington Trust Company, as
Owner Trustee, as of the Closing Time or prior thereto (the "BUSINESS TRUST
AGREEMENT").
Each Class of the Certificates will represent interests in the
related Trust established pursuant to the related Designated Agreement to fund
the purchase of equipment notes (the "EQUIPMENT NOTES") to be issued by the
Company in connection with the financing of 36 Aircraft. The Equipment Notes
will be issued under 36 separate Indenture and Security Agreements between State
Street, as Loan Trustee (the "LOAN TRUSTEE"), and the Company (each, including
any Supplements thereto, an "INDENTURE" and, collectively, the "INDENTURES").
The holders of each Class of the Offered Certificates will be
entitled to the benefits of separate liquidity facilities with respect to
certain amounts of interest payable thereon. Landesbank Hessen-Thuringen
Girozentrale (the "LIQUIDITY PROVIDER") will enter into a separate revolving
credit agreement with respect to each Offered Trust (each, a "LIQUIDITY
FACILITY"), to be dated as of the date on which the Closing Time (as defined
below) occurs, for the benefit of the holders of the respective Class of Offered
Certificates. The Liquidity Provider and the holders of the Certificates will be
entitled to the benefits of an Intercreditor Agreement to be dated as of the
date on which the Closing Time occurs (the "INTERCREDITOR AGREEMENT") among
State Street as Trustee of each Trust, the Liquidity Provider and State Street,
as Subordination Agent (the "SUBORDINATION AGENT").
As used herein, unless the context otherwise requires, the term
"UNDERWRITERS" shall mean the firms named as Underwriters in Schedule I and the
term "you" shall mean Salomon Smith Barney Inc. ("SALOMON") and J.P. Morgan
Securities Inc. ("J.P. MORGAN").
Capitalized terms used but not otherwise defined in this Agreement
shall have the meanings specified in or pursuant to the Designated Agreements or
the Intercreditor Agreement; provided that as used in this Agreement, the term
"OPERATIVE DOCUMENTS" shall mean the Intercreditor Agreement, the Liquidity
Facilities, the Designated Agreements, the Participation Agreements, the
Indentures and the Business Trust Agreement.
The Company has prepared and filed on Form S-3 with the Securities
and Exchange Commission (the "COMMISSION") a shelf registration statement (File
No. 333-65218) (the "REGISTRATION STATEMENT", as amended at the date hereof,
including the exhibits thereto and the documents incorporated by reference
therein, the "REGISTRATION STATEMENT") relating to among others, certain pass
through certificates (including the Offered Certificates) and the offering
thereof from time to time in accordance with Rule 415 under the Securities Act
of 1933, as amended (the "SECURITIES ACT"). The Registration Statement has been
declared effective by the Commission. As provided in Section 3(a), a prospectus
supplement reflecting the terms of the Offered Certificates, the terms of the
offering thereof and the other matters set forth therein has been prepared and
will be filed together with the base prospectus referred to below pursuant to
Rule 424 under the Securities Act (such prospectus supplement, in the form first
filed on or after the date hereof pursuant to Rule 424, is herein referred to as
the "PROSPECTUS SUPPLEMENT"). The base prospectus dated July 23, 2001 included
in the Registration Statement and relating to all offerings of pass through
certificates as supplemented by the Prospectus Supplement, is herein called the
"Prospectus", except that, if such base prospectus is amended on or prior to the
date on which the Prospectus Supplement is first filed pursuant to Rule 424, the
term "PROSPECTUS" shall refer to such base prospectus as so amended and as
supplemented by the Prospectus Supplement, in either case including the
documents filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), that are incorporated by
reference therein. The term "preliminary prospectus" means a preliminary
prospectus supplement specifically relating to the Offered Certificates,
together with the base prospectus and including the documents filed by the
Company with the Commission pursuant to the Exchange Act that are incorporated
by reference therein. Any reference herein to the terms "AMENDMENT" or
"SUPPLEMENT" with respect to the Registration Statement, the Prospectus, or any
preliminary prospectus shall be deemed to refer to and include any documents
filed by the Company with the Commission under the Exchange Act after the date
hereof, the date the Prospectus is filed with the Commission, or the date of
such preliminary prospectus, as the case may be, and incorporated therein by
reference pursuant to Item 12 of Form S-3 under the Securities Act.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act.
(b) The Registration Statement has been declared effective by the
Commission. On the original effective date of the Registration Statement,
on the effective date of any post-effective amendment thereto, and on the
date of the filing by the Company of any Annual Report on Form 10-K after
the original filing of the Registration Statement, the Registration
Statement complied in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission thereunder (the "SECURITIES ACT REGULATIONS"), and the Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), and the
applicable rules and regulations of the Commission thereunder (the "TRUST
INDENTURE ACT REGULATIONS") and did not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; the
Registration Statement and any amendments thereof, on the date hereof, and
the Prospectus, and any amendments thereof and supplements thereto, as of
their respective filing or issue dates and at the Closing Time, comply and
will comply in all material respects with the requirements of the
Securities Act, the Securities Act Regulations, the Trust Indenture Act
and the Trust Indenture Act Regulations, and neither the Prospectus nor
any amendments thereof or supplements thereto, as of any such respective
dates, includes or will include an untrue statement of a material fact or
omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; except that this representation and warranty
does not apply to statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished in
writing to the Company in connection with the Registration Statement or
the Prospectus or any amendment thereof or supplement thereto by or on
behalf of such Underwriter through either of you expressly for use in the
Prospectus and any amendments thereof or supplements thereto, or to
statements or omissions in that part of the Registration Statement which
constitutes the Statement of Eligibility under the Trust Indenture Act
(Form T-1) of the Trustee.
(c) The consolidated financial statements incorporated by reference
in the Prospectus and any amendments thereof or supplements thereto
present fairly the consolidated financial position of the Company and its
subsidiaries as of the dates indicated and the consolidated results of
their operations and cash flows for the periods specified and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved, except as
indicated therein, and the supporting schedules incorporated by reference
in the Registration Statement present fairly the information required to
be stated therein.
(d) The documents incorporated by reference in the Prospectus and
any amendments thereof or supplements thereto, at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act and the rules
and regulations thereunder.
(e) Since the date of the latest audited financial statements
incorporated by reference in the Registration Statement and Prospectus,
there has been no material adverse change in, or any development known to
the Company which would have a material adverse effect on, the
consolidated financial condition or operations of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth or contemplated in
the Registration Statement and Prospectus.
(f) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as it is now being conducted except where the failure
to have such power or authority would not individually or in the aggregate
have a material adverse effect on the consolidated financial condition or
operations of the Company and its subsidiaries, taken as a whole.
(g) The Company (i) is an "air carrier" within the meaning of 49
U.S.C. Section 40102(a), (ii) holds an air carrier operating certificate
issued by the Secretary of Transportation pursuant to Chapter 447 of Title
49 of the United States Code for aircraft capable of carrying 10 or more
individuals or 6,000 pounds or more of cargo, (iii) is a "citizen of the
United States" as defined in 49 U.S.C. Section 40102 and (iv) is duly
qualified as a foreign corporation for the transaction of business and in
good standing under the laws of each jurisdiction (other than the State of
Delaware) in which the Company has intrastate routes, or has a principal
office or major overhaul facility and where the failure to so qualify
would have a material adverse effect on the financial condition or
operations of the Company and its subsidiaries, taken as a whole; and each
material subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation.
(h) The execution and delivery by the Company of this Agreement, the
Equipment Notes and the Operative Documents to which the Company is, or is
to be, a party, the consummation by the Company of the transactions herein
and therein contemplated, and the compliance by the Company with the terms
hereof and thereof do not and will not conflict with, or result in a
breach or violation of, any of the terms or provisions of, or constitute a
default under, the Certificate of Incorporation or By-Laws, as amended, of
the Company or any of its subsidiaries or any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or by which any of the property or assets
of the Company or any of its subsidiaries is subject (except for such
conflicts, breaches, violations and defaults as would not have a material
adverse effect on the financial condition or operations of the Company and
its subsidiaries, taken as a whole, and that would not affect the validity
of the Equipment Notes or the Certificates), nor will such action result
in any violation of the provisions of the Certificate of Incorporation or
By-laws of the Company, or any statute or any order, rule or regulation of
any court or governmental agency or body, having jurisdiction over the
Company or any of its subsidiaries or any of their respective properties;
and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body, is
required for the valid authorization, issuance and delivery of the
Certificates and the Equipment Notes, the valid authorization, execution,
delivery and performance by the Company of this Agreement, the Equipment
Notes and the Operative Documents to which the Company is, or is to be, a
party, or the consummation by the Company of the transactions contemplated
by this Agreement, the Equipment Notes and the Operative Documents to
which the Company is, or is to be, a party, except (i) such as are
required under the Securities Act, the Trust Indenture Act and the
securities or Blue Sky laws of the various states and, (ii) filings or
recordings with the Federal Aviation Administration ("FAA") and under the
Uniform Commercial Code as in effect in Delaware, which filings or
recordings shall have been made or duly presented for filing on or prior
to the Closing Time.
(i) This Agreement, the Equipment Notes and the Operative Documents
to which the Company is, or is to be, a party, have each been duly
authorized by the Company, and this Agreement and each Operative Document
to which the Company is, or is to be, a party, have been or will be at or
prior to the Closing Time, duly executed and delivered by the Company. The
Equipment Notes will be duly executed and delivered by the Company at or
prior to the Closing Time. The Equipment Notes and the Operative Documents
to which the Company is or is to be, a party, when duly executed and
delivered by the Company, assuming in the case of the Operative Documents
that such documents constitute the legal, valid and binding obligation of
each other party thereto, constitute or will constitute valid and binding
obligations of the Company. The form of the Basic Agreement filed as an
exhibit to the Company's shelf registration statement (File No. 333-58647)
has been duly qualified under the Trust Indenture Act. The Certificates,
the Equipment Notes, and the Operative Documents will conform in all
material respects to the descriptions thereof in the Prospectus and any
amendments thereof or supplements thereto.
(j) Arthur Andersen LLP, who reported on the annual consolidated
financial statements of the Company incorporated by reference in the
Registration Statement and the Prospectus and any amendments thereof or
supplements thereto, are independent accountants as required by the
Securities Act and the Securities Act Regulations.
(k) When duly executed, authenticated and delivered by the Trustee
in accordance with the terms of the related Designated Agreements and sold
and paid for as provided in (i) this Agreement in the case of the Offered
Certificates and (ii) the Class D Trust Supplement and the Business Trust
Agreement, in the case of the Class D Certificates, the Certificates will
be validly issued pursuant to the related Designated Agreements and will
constitute valid and binding obligations of the related Trustees
enforceable against the Trustees in accordance with their terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting enforcement of creditors' rights generally
and by general principles of equity; and the holders thereof will be
entitled to the benefits of the related Designated Agreements.
(l) The Equipment Notes, when duly executed and delivered by the
Company and when duly authenticated by the Loan Trustee in accordance with
the terms of the related Indentures, will be duly issued under such
Indentures and will constitute valid and binding obligations of the
Company; and the holders thereof will be entitled to the benefits of the
related Indentures, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and by general principles of equity.
(m) The statements set forth in the Registration Statement and
Prospectus under the headings "CERTAIN UNITED STATES FEDERAL INCOME TAX
CONSEQUENCES", "ERISA CONSIDERATIONS", "CERTAIN FEDERAL INCOME TAX
CONSEQUENCES" and "CERTAIN ERISA CONSIDERATIONS", insofar as such
statements purport to summarize certain legal matters, referred to
therein, constitute accurate summaries thereof in all material respects.
(n) Other than as set forth in the Registration Statement and
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject which,
in the reasonable judgment of the Company, individually or in the
aggregate are likely to have a material adverse effect on the consolidated
financial condition or operations of the Company and its subsidiaries
taken as a whole; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(o) The Company has authorized capital stock as set forth in the
Registration Statement and Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; and all of the issued shares
of capital stock of each material subsidiary (except for Aero Assurance
Ltd. for which the Company owns approximately a 90% equity interest) of
the Company have been fully and validly authorized and issued, are fully
paid and non-assessable and (except for directors' qualifying shares) are
owned directly or indirectly by the Company.
(p) Neither the Company nor any of its affiliates, nor any person
acting on their behalf, nor to the Company's knowledge any Trust has
offered, sold or solicited an offer to buy, any Class D Certificates or
any interest therein to any person or entity other than the Initial Class
D Holder. The Company has not entered and will not enter into any
contractual arrangement with respect to the issuance and initial sale of
the Class D Certificates except as contemplated by the Operative
Documents.
(q) At the Closing Time, the Initial Class D Holder will be duly
formed and be validly existing in good standing as a business trust under
the Delaware Business Trust Act (the "DBTA") and have the power and
authority under the Business Trust Agreement and the DBTA to own and hold
its property. At the Closing Time, the Company or one of its affiliates
will directly or indirectly own all of the beneficial interests in the
Initial Class D Holder free and clear of any lien, encumbrance, security
interest or similar claim or interests.
(r) The issuance and sale of the Class D Certificates and the
related Equipment Notes, as contemplated by the Operative Documents, will
not be subject to the registration requirements of the Securities Act, and
the Designated Agreement for the Class D Certificates will not be required
to be qualified under the Trust Indenture Act.
2. Purchase and Sale. (a) On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein and
therein set forth, the Company agrees to cause the Trustee to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Trustee, at a purchase price of 100% of the principal amount thereof,
the aggregate principal amount of each Class of Offered Certificates set forth
opposite the name of such Underwriter in Schedule I.
(b) Payment of the purchase price for, and delivery of, the Offered
Certificates shall be made at the offices of Cadwalader, Wickersham & Taft, 100
Maiden Lane, New York, New York 10038 at 10:00am on September 17, 2001, or at
such other date, time or location or locations as shall be agreed upon by the
Company and you, or as shall otherwise be provided in Section 7 (such date and
time being herein called the "CLOSING TIME"). Payment shall be made to or upon
the order of the Trustees by federal funds wire transfer or other immediately
available funds against delivery to the account of Salomon Smith Barney Inc. at
The Depository Trust Company for the respective accounts of the several
Underwriters of the Offered Certificates. Such Offered Certificates shall be
registered in the name of Cede & Co. or in such other names, and in such
authorized denominations as you may request in writing at least two full
business days before the Closing Time. Certificates for such Offered
Certificates, which may be in temporary form, will be made available for
examination and packaging by you at the location or locations at which they are
to be delivered at the Closing Time not later than 9:30 A.M., New York City
time, on the business day prior to the Closing Time.
(c) The Company will pay to Salomon Smith Barney Inc. at the Closing
Time for the accounts of the Underwriters the sum of $8,112,000. Such payment
will be made by federal funds wire transfer or other immediately available
funds.
3. Agreements. The Company covenants with each Underwriter as
follows:
(a) Immediately following the execution of this Agreement, the
Company will prepare a final Prospectus Supplement in a form reasonably
approved by you, that complies with the Securities Act and the Securities
Act Regulations and which sets forth the principal amount of the Offered
Certificates and their terms not otherwise specified in the base
prospectus relating to all offerings of pass through certificates under
the Registration Statement, the name of each Underwriter participating in
the offering and the principal amount of the Offered Certificates that
each severally has agreed to purchase, the price at which the Offered
Certificates are to be purchased by the Underwriters from the Trustee, any
initial public offering price, any selling concession and reallowance, and
such other information as you and the Company deem appropriate in
connection with the offering of the Offered Certificates. The Company will
promptly transmit copies of the Prospectus and any amendments thereof or
any supplement thereto to the Commission for filing pursuant to Rule 424
under the Securities Act and will furnish to the Underwriters as many
copies of the Prospectus as you shall reasonably request.
(b) During the period when a prospectus relating to the Offered
Certificates is required to be delivered under the Securities Act, the
Company will promptly advise you of (i) the effectiveness of any amendment
to the Registration Statement, (ii) the transmittal to the Commission for
filing of any supplement to the Prospectus or any document that would as a
result thereof be incorporated by reference in the Prospectus, (iii) any
request by the Commission for any amendment of the Registration Statement
or any amendment or supplement to the Prospectus or for any additional
information relating thereto or to any document incorporated by reference
therein, (iv) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, and (v) the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Offered Certificates for sale in any jurisdiction or
the institution or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(c) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Securities Act, any
event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
or if it shall be necessary to amend or supplement the Prospectus to
comply with the Securities Act or the Securities Act Regulations, the
Company promptly will prepare and file with the Commission, subject to
paragraph (d) of this Section 3, an amendment or supplement which will
correct such statement or omission or an amendment or supplement which
will effect such compliance. Neither your consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 4.
(d) At any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Securities Act or the
Securities Act Regulations, the Company will give you notice of its
intention to file any amendment to the Registration Statement or any
amendment or supplement to the Prospectus, whether pursuant to the
Exchange Act, the Securities Act or otherwise, will furnish you with
copies of any such amendment or supplement or other documents proposed to
be filed within a reasonable time in advance of filing, and will not file
any such amendment or supplement or other documents in a form to which you
shall reasonably object.
(e) The Company has furnished or will furnish to you and your
counsel, without charge, conformed copies of the Registration Statement as
originally filed and of all amendments thereto, whether filed before or
after the Registration Statement originally became effective (including
exhibits thereto and the documents incorporated therein by reference) and,
so long as delivery of a prospectus by an Underwriter or dealer may be
required by the Securities Act, as many copies of each preliminary
prospectus, the Prospectus and any amendments thereof and supplements
thereto as you may reasonably request.
(f) The Company will promptly take such actions as you may request
to qualify the Offered Certificates for sale under the laws of such
jurisdictions as you may reasonably request and will maintain such
qualifications in effect so long as required for the distribution of such
Offered Certificates. The Company, however, shall not be obligated to
qualify as a foreign corporation or file any general consent to service of
process under the laws of any such jurisdiction or subject itself to
taxation as doing business in any such jurisdiction.
(g) The Company, during the period when a prospectus relating to the
Offered Certificates is required to be delivered under the Securities Act
and the Securities Act Regulations, will file promptly all documents
required to be filed with the Commission pursuant to Section 13 or 14 of
the Exchange Act.
(h) The Company will make generally available to its security
holders, in each case as soon as practicable, but not later than 45 days
after the close of the period covered thereby (90 days in case the period
covered corresponds to a fiscal year of the Company), earnings statements
of the Company, which will comply as to form with the provisions of Rule
158 under the Securities Act.
(i) Between the date of this Agreement and the Closing Time, the
Company will not, without your prior consent, offer, sell or enter into
any agreement to sell any public debt securities registered under the
Securities Act (other than the Offered Certificates) or any debt
securities which may be sold in a transaction exempt from the registration
requirements of the Securities Act in reliance on Rule 144A under the
Securities Act and which are marketed through the use of a disclosure
document containing substantially the same information as a prospectus for
similar debt securities registered under the Securities Act, provided,
however, that the Company will not require such consent to offer, sell or
enter into any agreement to sell up to $150,000,000 of debt securities if
such debt securities are not substantially similar to the Offered
Certificates.
4. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Offered Certificates
pursuant to this Agreement shall be subject in their discretion to the accuracy
of and compliance with the representations and warranties of the Company
contained herein as of the date hereof and the Closing Time, to the accuracy of
the statements of the Company's officers made in any certificates furnished
pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder and to the following additional
conditions:
(a) At the Closing Time, no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the Securities
Act and no proceedings therefor shall have been instituted or threatened
by the Commission.
(b) At the Closing Time, you shall have received:
(1) An opinion, dated the Closing Time, from Leslie P.
Klemperer, Vice President-Associate General Counsel of the Company,
in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority
(corporate and other) to own its properties and to conduct its
business as it is now being conducted; except where the
failure to have such power or authority would not individually
or in the aggregate have a material adverse effect on the
financial condition or operations of the Company and its
subsidiaries, taken as a whole;
(ii) The Company is an "air carrier" within the meaning
of the 49 U.S.C. Section 40102(a), as amended, and has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each
jurisdiction in the United States of America other than that
of its incorporation in which it has intrastate routes or has
a principal office or major overhaul facility and where the
failure to so qualify would have a material adverse effect on
the financial condition or operations of the Company and its
subsidiaries, taken as a whole (such counsel being entitled to
rely in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon
certificates of officers of the Company, provided that such
counsel shall state that such counsel believes that the
Underwriters and such counsel are justified in relying upon
such opinions and certificates). The Company holds an air
carrier operating certificate issued by the Secretary of
Transportation pursuant to Chapter 447 of Title 49 of the
United States Code pursuant to which the Company is authorized
to operate the Aircraft and the Company is a "citizen of the
United States" as defined in 49 U.S.C. Section 40102;
(iii) The Company has an authorized capital stock as set
forth in the Registration Statement and Prospectus and all of
the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable;
(iv) Each material subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation; and all of the issued shares of capital stock
of each such subsidiary (except for directors' qualifying
shares) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims;
(such counsel being entitled to rely in respect of the opinion
in this clause (iv) upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of
the Company or its subsidiaries, provided that such counsel
shall state that they believe that both the Underwriters and
such counsel are justified in relying upon such opinions and
certificates);
(v) The Company has the corporate power and authority
under Delaware law to perform its obligations hereunder and
under the Equipment Notes and the Operative Documents to which
the Company is, or is to be, a party;
(vi) The Registration Statement has become effective
under the Securities Act, the Basic Agreement has been duly
qualified under the Trust Indenture Act and, to the best
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
threatened;
(vii) The Registration Statement, the Prospectus and
each amendment thereof or supplement thereto (except in each
case for the financial statements and related schedules and
other financial data included or incorporated by reference
therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Securities Act and the Securities Act
Regulations when they became effective or were filed with the
Commission; the Basic Agreement and the Statement of
Eligibility of the Trustee on Form T-1 filed with the
Commission as part of the Registration Statement comply as to
form in all material respects with the requirements of the
Trust Indenture Act and the rules and regulations thereunder;
and each document filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except in each
case for the financial statements and related schedules and
other financial data included or incorporated by reference
therein, as to which counsel need express no opinion) appeared
on its face, as of its respective filing date, to comply as to
form in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder;
(viii) This Agreement has been duly authorized, validly
executed and delivered by the Company;
(ix) Each of the Operative Documents to which the
Company is, or is to be, a party has been duly authorized,
executed and delivered by the Company;
(x) The execution and delivery by the Company of this
Agreement, the Equipment Notes and the Operative Documents to
which the Company is, or is to be, a party, the consummation
by the Company of the transactions herein and therein
contemplated and in the manner herein and therein contemplated
and compliance by the Company with the terms hereof and
thereof, do not and will not conflict with, or result in a
breach or violation of, any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which the Company or any of its
subsidiaries is a party or to which the Company or any of its
subsidiaries is bound or by which any of the property or
assets of the Company or any of its subsidiaries is subject
(except for such conflicts, breaches, violations and defaults
that would not have a material adverse effect on the financial
condition or operations of the Company and its subsidiaries,
taken as a whole, and that would not affect the validity of
the Equipment Notes or the Certificates), nor will such
actions result in any violation of the provisions of the
Certificate of Incorporation, as amended, or By-Laws of the
Company, or any statute or rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their respective properties;
(xi) To the best of such counsel's knowledge after
reasonable investigation, no consent, approval, authorization,
order, registration or qualification of or with any such court
or governmental agency or body is required for the valid
authorization, issuance, sale and delivery of the Certificates
or the Equipment Notes, the valid authorization, execution,
delivery and performance by the Company of this Agreement and
the Operative Documents to which the Company is, or is to be,
a party, or the consummation by the Company of the other
transactions contemplated by this Agreement and the other
Operative Documents to which the Company is, or is to be, a
party, except such as have been obtained under the Securities
Act and the Trust Indenture Act, and such as may be required
under the securities or Blue Sky laws of the various states in
connection with the purchase and distribution of the
Certificates and Equipment Notes, and except for the filing of
Uniform Commercial Code financing statements (or amendments to
any such financing statements) and the filing of continuation
statements with respect thereto required to be filed at
periodic intervals under the Uniform Commercial Code and any
filings or recordings with the Federal Aviation
Administration, as to which such counsel need express no
opinion;
(xii) Such counsel has no reason to believe that the
statements in the Registration Statement and the Prospectus
with respect to statutes, administrative orders and
regulations and legal and governmental proceedings do not
fairly and accurately present in all material respects the
information required to be set forth therein; except that such
counsel need express no opinion as to the matters to be
addressed in clauses (ii), (iii) and (iv) of the opinion
referred to in Section 4(b)(2) hereof and paragraphs 6, 7, and
9 of the form of opinion of Bingham Dana LLP set forth in
Exhibit A hereto; and there are, to the best of such counsel's
knowledge, no statutes, administrative orders or regulations
or legal or governmental proceedings required to be described
in the Registration Statement or the Prospectus which are not
described as required, nor any contracts or documents of a
character required to be described in the Registration
Statement or the Prospectus, or to be filed as exhibits to the
Registration Statement, that are not so described or filed as
required;
(xiii) There are various legal or governmental
proceedings pending to which the Company or certain of its
subsidiaries is a party or to which property of the Company or
certain of its subsidiaries is the subject. Although the
ultimate outcome of these proceedings cannot be predicted with
certainty, to the best of counsel's knowledge, after
reasonable investigation, there are no such legal or
governmental proceedings pending which, individually or in the
aggregate, are likely to have a material adverse effect on the
consolidated financial condition, results of operations or
liquidity of the Company and its subsidiaries taken as a
whole; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(xiv) The statements in the Prospectus as to the route
system which the Company presently operates or is authorized
to operate are correct in all material respects and no
authorization of the Company to operate any such route is the
subject of any "show cause" or other order of, or any
proceeding before, or any investigation by, the Department of
Transportation (other than proceedings for the granting or
renewal of temporary certificates or exemption rights) which
in the opinion of such counsel is reasonably likely to result
in a final order impairing the validity of such certificates
or exemption orders; and
(xv) The issuance, sale and delivery of the Class D
Certificates, as contemplated by the Operative Documents, are
not subject to the registration requirements of the Securities
Act, and the Designated Agreement relating to the Class D
Certificates is not required to be qualified under the Trust
Indenture Act.
Such counsel shall also state that no facts have come to the
attention of such counsel which have caused such counsel to believe
(A) that the Registration Statement or any amendments thereto, on
the original effective date thereof, or on the effective date of any
post-effective amendments thereto, or on the date of the filing by
the Company with the Commission of its most recent Annual Report on
Form 10-K after the filing of the Registration Statement (except, in
each case, for the financial statements and related schedules and
other financial data included or incorporated by reference therein,
and except for the Statement of Eligibility on Form T-1 of the
Trustee under the Basic Agreement, as to which such counsel need
express no belief), contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (B) that
the Prospectus at the time the Prospectus Supplement was issued or
the Prospectus, together with any amendment or supplement thereto,
at the time any such amended or supplemental Prospectus was issued,
or at the Closing Time (except, in each case, for the financial
statements and related schedules and other financial data included
or incorporated by reference therein, as to which such counsel need
express no belief), contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In giving
such opinion, such counsel may state that such opinion is limited to
the laws of the State of Georgia, the General Corporation Law of the
State of Delaware and the Federal laws of the United States, except
that such counsel expresses no opinion as to the securities laws of
any state. In rendering the opinions set forth above, such counsel
may rely upon certificates of officers of the Company and of public
officials as to matters of fact.
(2) An opinion, dated the Closing Time, of Cadwalader,
Wickersham & Taft, as counsel for the Company, in form reasonably
satisfactory to you and your counsel, to the effect that:
(i) The Certificates have been issued and delivered by
the Trustee pursuant to the related Designated Agreements and
constitute valid and binding obligations of the Trustee
enforceable against the Trustee in accordance with their
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
enforcement of creditors' rights generally and by general
principles of equity; and the holders of the Certificates are
entitled to the benefits of the related Designated Agreements;
(ii) The statements in the Registration Statement and
Prospectus under the headings "CERTAIN UNITED STATES FEDERAL
INCOME TAX CONSEQUENCES", "ERISA CONSIDERATIONS", "CERTAIN
FEDERAL INCOME TAX CONSEQUENCES" and "CERTAIN ERISA
Considerations", insofar as such statements purport to
summarize certain legal matters referred to therein,
constitute accurate summaries thereof in all material
respects;
(iii) The Trusts created by the Designated Agreements
should not be classified as associations (or as publicly
traded partnerships) taxable as corporations for federal
income tax purposes, but rather, based on an interpretation of
analogous authorities under existing law, each Trust should be
classified as a grantor trust under subpart E, Part I of
Subchapter J of Chapter 1 of subtitle A of the Internal
Revenue Code of 1986, as amended, and each of the Certificate
Owners should be treated as the owner of a pro rata undivided
interest in each of the related Equipment Notes and any other
property held in the related Trust;
(iv) Section 1110 of the Bankruptcy Code ("SECTION
1110") conforms in all material respects to the description
thereof contained in "Description of the Equipment Notes -
Remedies" in the Prospectus;
(v) The Trusts are not required to be registered under
the Investment Company Act of 1940, as amended;
(vi) Assuming due authorization, execution and delivery
by each of the parties to the Operative Documents, each such
agreement (other than the Business Trust Agreement)
constitutes the valid and binding obligation of each
respective party, enforceable in accordance with its terms,
except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
enforcement of creditors' rights generally and by general
principles of equity;
(vii) The Certificates, the Equipment Notes and the
Operative Documents conform in all material respects to the
descriptions thereof contained in the Prospectus and such
descriptions conform in all material respects to the rights
set forth in the instruments defining the same; and
(viii) The Equipment Notes, when duly authorized,
executed and delivered by the Company and duly authenticated
by the related Loan Trustee, will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting enforcement of creditors' rights
generally and by general principles of equity and the holders
of the Equipment Notes will be entitled to the benefits of the
respective Indentures.
The opinions of such counsel expressed in the immediately preceding
clause (vi) shall be limited to the laws of the State of New York
governing the enforceability of contracts as such and in giving such
opinion, such counsel may rely as to certain matters acceptable to
you upon the opinions referred to in Section 4(b)(1) and Section
4(b)(3) hereof, in which case the opinion shall state that such
counsel believes that it and the Underwriters are entitled to so
rely. In rendering the opinions set forth above, such counsel may
rely upon certificates of officers of the Company and of public
officials as to matters of fact.
Such counsel shall also state that no facts have come to the
attention of such counsel which have caused such counsel to believe
that (other than with regard to facts or information regarding the
Company and its operations which are contained in the Prospectus
Supplement or incorporated by reference therein, to which such
counsel need express no belief) the Prospectus at the time the
Prospectus Supplement was issued or the Prospectus, together with
any amendment or supplement thereto, at the time any such amended or
supplemental Prospectus was issued, or at the Closing Time (except,
in each case, for the financial statements and related schedules and
other financial data included or incorporated by reference therein,
as to which such counsel need express no belief), contained or
contains any untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. In giving such opinion, such counsel may state
that such opinion is limited to the laws of the States of New York,
the General Corporation Law of the State of Delaware and the Federal
laws of the United States, except that such counsel expresses no
opinion as to the securities laws of any state. In rendering the
opinions set forth above, such counsel may rely upon certificates of
officers of the Company and of public officials as to matters of
fact.
(3) An opinion, dated the Closing Time, of Bingham Dana,
counsel for State Street, individually, as Subordination Agent,
Trustee and Loan Trustee, in form and substance reasonably
satisfactory to you and your counsel and substantially to the effect
set forth in Exhibit A hereto.
(4) An opinion, dated the Closing Time, from in-house counsel
for the Liquidity Provider, in form and substance satisfactory to
you and your counsel and substantially to the effect set forth in
Exhibit B hereto.
(5) An opinion, dated the Closing Time, from Pillsbury
Winthrop, counsel for the Liquidity Provider, in form and substance
satisfactory to you and your counsel and substantially to the effect
set forth in Exhibit D hereto.
(6) An opinion, dated the Closing Time, from Richards, Layton
& Finger, PA, special Delaware counsel to the Initial Class D
Holder, in form and substance satisfactory to you and your counsel
and substantially to the effect set forth in Exhibit C hereto.
(7) An opinion, dated the Closing Time, from Shearman &
Sterling, counsel for the Underwriters, to the effect that the
opinions delivered pursuant to subsections (b)(1) through (b)(4) of
this Section 4 appear on their face to be appropriately responsive
to the requirements of this Agreement except, specifying the same,
to the extent waived by you and with respect to the issuance and
sale of the Offered Certificates, the Registration Statement, the
Prospectus and other related matters as you may reasonably require.
(c) On or after the date hereof, there shall not have been (i) any
change or decrease, specified in the letter or letters referred to in
paragraph (d) of this Section 4 or (ii) any change, or any development
involving a prospective change, in or affecting the business or properties
of the Company and its subsidiaries, taken as a whole, the effect of
which, in any case referred to in clause (i) or (ii) above, is, in your
reasonable judgment, so material and adverse as to make it impractical or
inadvisable to proceed with the public offering or the delivery of the
Offered Certificates as contemplated by the Prospectus as amended or
supplemented; and you shall have received a certificate of the President,
an Executive Vice President, a Senior Vice President or a Vice President
of the Company, dated as of the Closing Time, to the effect that (i) there
has been no such material adverse change, (ii) that the representations
and warranties in Section 1 hereof and also the representations and
warranties of the Company contained in the Operative Documents are true
and correct with the same force and effect as though made at such Closing
Time, and as to such other matters as you may reasonably request.
(d) At the time of the execution of this Agreement and also at the
Closing Time, Arthur Andersen LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, together with signed or reproduced copies
of such letter or letters for each of the other Underwriters containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement
and the Prospectus and any amendments thereof or supplements thereto.
(e) The Company shall have furnished to you and your counsel, in
form and substance satisfactory to them, such other documents,
certificates and opinions as such counsel may reasonably request for the
purpose of enabling such counsel to pass upon the matters referred to in
subsection (b)(6) of this Section 4 and in order to evidence the accuracy
and completeness of any of the representations, warranties or statements,
the performance of any covenant by the Company theretofore to be
performed, or the compliance with any of the conditions herein contained.
(f) Each of the Appraisers shall have furnished to the Underwriters
a letter from such Appraiser, addressed to the Company and dated the
Closing Time, confirming that such Appraiser and each of its directors and
officers (i) is not an affiliate of the Company or any of its affiliates,
(ii) does not have any substantial interest, direct or indirect, in the
Company or any of its affiliates and (iii) is not connected with the
Company or any of its affiliates as an officer, employee, promoter,
Underwriter, trustee, partner, director or person performing similar
functions.
(g) At the Closing Time, the Offered Certificates shall be rated
AAA, in the case of the Offered Certificates of the Class A-1 Trust, AAA,
in the case of the Offered Certificates of the Class A-2 Trust, AA-, in
the case of the Offered Certificates of the Class B Trust and A+, in the
case of the Offered Certificates of the Class C Trust, by Standard &
Poor's Ratings Services; and Aa2, in the case of the Offered Certificates
of the Class A-1 Trust, Aa2, in the case of the Offered Certificates of
the Class A-2 Trust, Aa3, in the case of the Offered Certificates of the
Class B Trust and A2, in the case of the Offered Certificates of the Class
C Trust, by Moody's Investors Service, Inc.
(h) At the Closing Time, all conditions precedent specified in each
Participation Agreement with respect to the funding of the related
Equipment Notes, shall have been satisfied; each of the Equipment Notes
and Operative Documents shall have been executed and delivered by each
party thereto; (i) the representations and warranties of the Trustee, the
Subordination Agent and the Loan Trustee contained in each of the
Participation Agreements and (ii) the representations and warranties of
the Owner Trustee contained in the Business Trust Agreement shall be
accurate as of the Closing Time (except to the extent that they relate
solely to an earlier date in which case they shall be accurate as of such
earlier date) and you shall have received certificates of the Company and
appropriate officers of the Subordination Agent, Pass Through Trustees,
Loan Trustees and Owner Trustee, dated as of the Closing Time, to such
effect; and you shall have received a copy of each opinion required to be
delivered under each of the Participation Agreements dated as of the
Closing Time, and addressed to you, and of such other documents furnished
in connection with the fulfillment of such conditions as you may
reasonably request.
(i) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's unsecured debt securities by
any "nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the Act,
and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's unsecured debt securities; and
(j) At the Closing Time, simultaneously with the issuance and sale
of the Offered Certificates in accordance with this Agreement, the Class D
Certificates shall have been issued, sold and delivered to the Initial
Class D Holder.
All such opinions, certificates, letters and documents shall be
deemed to be in compliance with the provisions hereof only if they are in all
respects reasonably satisfactory to you and your counsel.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, other than by reason of any
default by any Underwriter, such failure to fulfill a condition may be waived by
you, or this Agreement may be terminated by you by notice to the Company at any
time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in Sections 5, 6
and 9 hereof, which provisions shall remain in effect notwithstanding such
termination.
5. Payment of Expenses. The Company will pay or cause to be paid all
expenses incident to the performance of the obligations of the Company under
this Agreement, including (i) expenses relating to the preparation, printing,
filing and distribution of any preliminary prospectus supplements, the
Prospectus and any amendments thereof or supplements thereto, the Registration
Statement and any amendments thereof or supplements thereto, (ii) expenses
relating to the preparation, printing and distribution of any agreement among
Underwriters, this Agreement, the Certificates, the Equipment Notes, the
Operative Documents, any Underwriter's Questionnaire, the Blue Sky Survey and
any Legal Investment Survey by the Underwriter's counsel, (iii) expenses
relating to the issuance and delivery of the Offered Certificates to the
Underwriters, (iv) the fees and disbursements of the Company's counsel and
accountants, (v) expenses of qualifying the Offered Certificates under state
securities laws in accordance with Section 3(f), including filing fees and fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the Blue Sky Survey and any Legal Investment Survey, (vi) the
fees and expenses of the Trustee, the Subordination Agent, the Loan Trustees,
the Owner Trustee and the Liquidity Provider and the fees and disbursements of
their respective counsel, (vii) any fees charged by rating agencies for rating
the Offered Certificates, and (viii) certain fees and expenses of counsel for
the Underwriters as heretofore agreed. The Company will also cause to be paid
all expenses incident to the performance of its obligations under the Operative
Documents and each of the other agreements and instruments referred to therein
which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Sections 6
and 10 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Offered Certificates by them, and any advertising expenses connected with any
offers they may make.
6. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter, and each person who controls such
Underwriter within the meaning of either the Securities Act or the Exchange Act,
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in any preliminary prospectus
relating to the Offered Certificates or in the Prospectus, or in any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, (i) that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon, and in conformity
with, written information furnished to the Company by any Underwriter through
either of you specifically for use in connection with the preparation thereof or
made in the part of the Registration Statement constituting the Statement of
Eligibility under the Trust Indenture Act of the Trustee on Form T-1, (ii) such
indemnity with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter or any person controlling such Underwriter as to whom
it shall be established that such Underwriter did not send or deliver to the
person asserting any such loss, claim, damage or liability and who purchased
Offered Certificates which are the subject thereof a copy of the Prospectus as
amended or supplemented (other than the documents incorporated by reference
therein) at or prior to the written confirmation of the sale of such Offered
Certificates in any case where such delivery is required by the Securities Act
and the untrue statement or omission of a material fact contained in such
preliminary prospectus was corrected in the Prospectus as amended or
supplemented and the Company had previously furnished copies thereof to such
Underwriter, and (iii) the Company will not be liable for any such loss, claim,
damage or liability in connection with any settlement of any pending or
threatened litigation or any pending or threatened governmental agency
investigation or proceeding if that settlement is effected without the prior
written consent of the Company, which consent shall not be unreasonably
withheld. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the
Registration Statement, and each person who controls the Company within the
meaning of either the Securities Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any loss, claim, damage, liability or action, but only with reference
to written information furnished to the Company by such Underwriter specifically
for inclusion in the Registration Statement or in any amendment thereto or the
Prospectus or any amendment or supplement thereto. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action or proceeding (including
any governmental investigation), such indemnified party will, if a claim for
indemnification in respect thereof is to be made against the indemnifying party
under Section 6(a) or (b) hereof, notify the indemnifying party in writing of
the commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under Section 6(a) or (b) hereof, and then only to the
extent that the indemnifying party is prejudiced thereby. In case any such
action or proceeding is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein (jointly with any other indemnifying party
similarly notified), and to the extent that it may elect, by written notice,
delivered to such indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; provided, however, that if
the defendants (including any impleaded parties) in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to appoint counsel to defend such
action and approval by the indemnified party of such counsel, the indemnifying
party will not be liable to such indemnified party under this Section 6 for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall have
employed separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expense of more than one separate counsel, approved by the
Underwriters in the case of paragraph (a) of this Section 6, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice or commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) or (b)
of this Section 6 is due in accordance with its terms but is for any reason
unavailable on grounds of policy or otherwise, the Company and the Underwriters
shall contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigation or defending same) to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Offered Certificates to which such loss,
claim, damage, or liability (or action in respect thereof) relates. If the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable to such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other hand in connection
with the offering of the Offered Certificates pursuant to this Agreement shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Offered Certificates pursuant to this Agreement (net of
compensation paid to the Underwriters but before deducting expenses) received by
the Company and the total underwriting discounts and commissions received by the
Underwriters in each case as set forth on the cover of the Prospectus, bears to
the aggregate initial public offering price of the Offered Certificates as set
forth on such cover. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or such Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which (i) the total
price at which the Offered Certificates underwritten by it and distributed to
the public were offered to the public exceeds (ii) the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section 6,
each person who controls any Underwriter within the meaning of either the
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as any Underwriter, and each person who controls
the Company within the meaning of either the Securities Act or the Exchange Act,
each officer of the Company and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the provisions of
this paragraph (d). The obligations of the Underwriters of Offered Certificates
in this subsection (d) to contribute are several in proportion to their
respective purchase obligations with respect to such Offered Certificates and
not joint.
7. Default. (a) If any Underwriter shall default in its obligation
to purchase the Offered Certificates of any Class which it has agreed to
purchase hereunder, you may in your discretion arrange for you or another party
or other parties to purchase such Offered Certificates on the terms contained
herein. If within thirty-six hours after such default by any Underwriter you do
not arrange for the purchase of such Offered Certificates, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to you to purchase such
Offered Certificates on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Offered Certificates, or the Company notifies you that it has
so arranged for the purchase of such Offered Certificates, you or the Company
shall have the right to postpone the Closing Time for a period of not more than
seven days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement and Prospectus, or in any other documents or
arrangements, and the Company agrees to prepare promptly any amendments to the
Registration Statement and Prospectus which in your reasonable opinion may
thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Offered Certificates.
(b) If, after giving effect to any arrangements for the purchase of
the Offered Certificates of a defaulting Underwriter or Underwriters by you and
the Company as provided in subsection (a) above, the aggregate principal amount
of Offered Certificates of any Class which remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of all the Offered Certificates
of such Class, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Offered
Certificates of such Class which such Underwriter agreed to purchase hereunder
and, in addition, to require each non-defaulting Underwriter to purchase its pro
rata share (based on the principal amount of Offered Certificates of such Class
which such Underwriter agreed to purchase hereunder) of the Offered Certificates
of such Class of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Offered Certificates of a defaulting Underwriter or Underwriters by you and
the Company as provided in subsection (a) above, the aggregate principal amount
of Offered Certificates of any Class which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of all the Offered Certificates
of such Class, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase Offered
Certificates of a defaulting Underwriter or Underwriters, then this Agreement
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 5 hereof and the indemnity and
contribution agreements in Section 6 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
8. Termination. This Agreement shall be subject to termination in
your discretion, by notice given to the Company prior to Closing Time, if prior
to such time (i) trading in the Company's common stock shall have been suspended
by the Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or materially
limited or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any material outbreak or material
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in your reasonable
judgment, impracticable to market such Offered Certificates.
9. Representations, Warranties, Indemnities and Agreements to
Survive Delivery. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Offered Certificates.
10. Liability upon Termination. If this Agreement shall be
terminated pursuant to Section 7 hereof, the Company shall not then be under any
liability to any Underwriter except as provided in Sections 5 and 6 hereof; but,
if for any other reason, the Offered Certificates are not delivered by or on
behalf of the Company as provided herein, because the Company fails to satisfy
any of the conditions set forth in Section 4 hereof (other than the condition in
Section 4(i)(ii) or because of any refusal, inability or failure of the Company
to perform any agreement herein or to comply with any provision hereof, other
than by reason of a default by the Underwriters), the Company will reimburse the
Underwriters through Salomon Smith Barney Inc. for all out-of-pocket expenses
approved in writing by Salomon Smith Barney Inc., including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Offered Certificates,
but the Company shall then be under no further liability to any Underwriter with
respect to such Offered Certificates except as provided in Section 5 and Section
6 hereof.
11. Notices. In all dealings hereunder, you shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by you jointly or by Salomon or J.P. Morgan on behalf
of you as the representatives. It is understood and agreed that Salomon and J.P.
Morgan are joint book runners for the offering and any determinations or other
actions to be made under this Agreement by you shall require the concurrence of
both Salomon and J.P. Morgan.
All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to you as the representatives in care of Salomon Smith
Barney Inc., 388 Greenwich Street, 34th Floor, New York, NY 10013, Attention:
General Counsel's Office and in care of J.P. Morgan Securities Inc., 270 Park
Avenue, New York, NY 10017, Attention: Transaction Execution Group; and if to
the Company shall be delivered or sent by mail, telex or facsimile transmission
to the address of the Company set forth in the Registration Statement,
Attention: Chief Financial Officer (with a copy to the General Counsel);
provided, however, that any notice to an Underwriter pursuant to Section 6(c)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
12. Parties. This Agreement shall be binding upon, and inure solely
to the benefit of, the Underwriters, the Company and, to the extent provided in
Sections 6 and 9 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Offered Certificates from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
13. Time of the Essence. Time shall be of the essence of this
Agreement.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. Counterparts. This Agreement may be executed by any one or more
of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please
sign and return one to each of Salomon Smith Barney Inc. and J.P. Morgan
Securities Inc., plus one for our counsel a counterpart hereof, whereupon this
letter shall constitute a binding agreement between each of the Underwriters and
the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
Delta Air Lines, Inc.
By:
--------------------------------
Name: Edward H. Bastian
Title: Senior Vice President - Finance
and Controller
Accepted as of the date hereof:
Salomon Smith Barney Inc.
By:
--------------------------------
Name:
Title:
J.P. Morgan Securities Inc.
By:
--------------------------------
Name:
Title:
SCHEDULE A
TO
UNDERWRITING
AGREEMENT
Final Expected
Class of Aggregate Regular
Pass Through Principal Distribution
Certificates Amount Interest Rate Date
-------------------- ------------------ ------------------ --------------------
2001-1, Class A-1 $300,000,000 5.869% March 18, 2011
2001-1, Class A-2 $571,148,000 6.361% September 18, 2011
2001-1, Class B $207,070,000 6.711% September 18, 2011
2001-1, Class C $169,782,000 6.299% September 18, 2006
SCHEDULE I
TO
UNDERWRITING
AGREEMENT
PRINCIPAL PRINCIPAL PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF AMOUNT OF AMOUNT OF
CLASS A-1 CLASS A-2 CLASS B CLASS C
UNDERWRITER CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES
----------- ------------------- ------------------- ------------------- -------------------
Salomon Smith Barney Inc......................... 37,500,000.00 71,395,000.00 25,886,000.00 21,225,000.00
J.P. Morgan Securities Inc....................... 37,500,000.00 71,395,000.00 25,886,000.00 21,225,000.00
Commerzbank Capital Markets Corp. ............... 37,500,000.00 71,393,000.00 25,883,000.00 21,222,000.00
Mizuho International plc ........................ 37,500,000.00 71,393,000.00 25,883,000.00 21,222,000.00
SunTrust Capital Markets Inc. ................... 37,500,000.00 71,393,000.00 25,883,000.00 21,222,000.00
Tokyo-Mitsubishi International plc............... 37,500,000.00 71,393,000.00 25,883,000.00 21,222,000.00
Credit Lyonnais Securities (USA) Inc. ........... 37,500,000.00 71,393,000.00 25,883,000.00 21,222,000.00
KBC Financial Products USA Inc. ................. 37,500,000.00 71,393,000.00 25,883,000.00 21,222,000.00
Total ........................................... 300,000,000.00 571,148,000.00 207,070,000.00 169,782,000.00
EXHIBIT A
TO
UNDERWRITING
AGREEMENT
Opinion of Bingham Dana LLP]
September 17, 2001
TO THE PARTIES SET FORTH
IN SCHEDULE A HERETO
RE: Delta Air Lines, Inc. 2001-1 Pass Through Trusts
Pass Through Trust Certificates, Series 2001-1
(Underwriting Agreement Opinion)
[Ladies and Gentlemen:
We have acted as special counsel for State Street Bank and Trust
Company of Connecticut, National Association, in its individual capacity ("State
Street") and as (i) Pass Through Trustee (the "Pass Through Trustee") under the
Pass Through Trust Agreement dated as of November 16, 2000, between Delta Air
Lines, Inc. ("Delta") and State Street (the "Basic Agreement"), as supplemented
by Trust Supplement No. 2001-lA-1, Trust Supplement No. 2001-1A-2, Trust
Supplement No. 2001-1B and Trust Supplement No. 2001-1C, each dated as of
September 17, 2001 and each between Delta and State Street (collectively, the
"Offered Trust Supplements") in connection with the transactions contemplated by
the Underwriting Agreement dated September 6, 2001 (the "Underwriting
Agreement") by and among Delta, Salomon Smith Barney Inc. and J.P. Morgan
Securities Inc. (the "Underwriters"); (ii) Pass Through Trustee under the Basic
Agreement as supplemented by Trust Supplement No. 2001-1D, dated as of September
17, 2001, between Delta and State Street (the "Class D Trust Supplement", and
the Basic Agreement, as supplemented by a Trust Supplement or Class D Trust
Supplement, a "Designated Agreement"); (iii) Loan Trustee under the Indentures
and Participation Agreements; and (iv) Subordination Agent under the
Intercreditor Agreement, the Liquidity Facilities and the Participation
Agreements. Capitalized terms not otherwise defined herein shall have the
meanings specified in or referenced in the Underwriting Agreement. This opinion
is being delivered pursuant to Section 4(b)(3) of the Underwriting Agreement.
Our representation of State Street in its individual capacity and as
Pass Through Trustee, Subordination Agent, Loan Trustee and Paying Agent has
been as special counsel for the limited purposes stated above. As to all matters
of fact (including factual conclusions and characterizations and descriptions of
purpose, intention or other state of mind), we have relied, with your
permission, entirely upon (i) the representations and warranties of the parties
set forth in the Operative Documents (defined below) and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations, warranties and
certificates.
We have examined the Designated Agreements, the Liquidity
Facilities, the Intercreditor Agreement, the Participation Agreements, the
Indentures and the Business Trust Agreement, each of which (other than the Basic
Agreement) is dated the date hereof (all such agreements, collectively, the
"Operative Documents"), the Certificates, the Certificate of the Comptroller of
the Currency relating to State Street and originals, or copies certified or
otherwise identified to our satisfaction, of such other records, documents,
certificates, or other instruments as we have deemed necessary or advisable for
the purposes of this opinion. For purposes of our opinion rendered in paragraph
1 below, with respect to the authority of State Street to operate as a national
banking association and exercise trust powers, our opinion relies upon and is
limited by such Certificate of the Comptroller of the Currency.
We have assumed the genuineness of all signatures (other than those
on behalf of State Street, the Pass Through Trustee, the Subordination Agent,
the Loan Trustee and the Paying Agent), the conformity to the originals of all
documents reviewed by us as copies, and the authenticity and completeness of all
original documents reviewed by us in original or copy form and the legal
competence of each individual executing any document (other than those
individuals executing documents on behalf of State Street, the Pass Through
Trustee, the Subordination Agent, the Loan Trustee and the Paying Agent).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we are
aware or which are known to us, or with another similar qualification, the
relevant knowledge or awareness is limited to the actual knowledge or awareness
of the individual lawyers in the firm who have participated directly and
substantively in the specific transactions to which this opinion relates and
without any special or additional investigation undertaken for the purposes of
this opinion.
Subject to the limitations set forth below, we have made such
examination of law as we have deemed necessary for the purposes of this opinion.
The opinions set forth below are limited solely to the internal substantive laws
of the State of Connecticut as applied by courts located in Connecticut without
regard to choice of law and the federal laws of the United States, and we
express no opinion as to the laws of any other jurisdiction. No opinion is given
herein as to the choice of law or internal substantive rules of law that any
court or other tribunal may apply to the transactions contemplated by the
Operative Documents. Without limitation of the generality of the foregoing, no
opinion is expressed herein as to the application or effect of federal
securities laws or as to the securities or so-called "Blue Sky" laws of any
state or other Jurisdiction. In addition, other than our opinion expressed in
paragraph 1 below with respect to the citizenship of State Street, no opinion is
expressed as to matters governed by any law, statute, rule or regulation of the
United States relating to the acquisition, ownership, registration, use,
operation, maintenance, repair, replacement or sale of or the nature of the
Aircraft. We express no opinion as to the accuracy or completeness of any
exhibits or schedules to the Operative Documents.
To the extent to which this opinion deals with matters governed by
or relating to the laws of the State of New York (by which the Operative
Documents are stated to be governed), or other jurisdiction other than the State
of Connecticut, we have assumed, with your permission that the Operative
Documents are governed by the internal substantive laws of the State of
Connecticut.
Our opinion is further subject to the following exceptions,
qualifications and assumptions:
(a) We have assumed without any independent investigation that (i)
each party to the Operative Documents, other than State Street, in its
individual capacity or as Pass Through Trustee, Subordination Agent, Loan
Trustee or Paying Agent, as applicable, at all times relevant thereto, is
validly existing and in good standing, under the laws of the jurisdiction in
which it is organized, and is qualified to do business and in good standing,
under the laws of each Jurisdiction where such qualification is required
generally or necessary in order for such party to enforce its rights under such
Operative Documents, and (ii) each party to the Operative Documents, at all
times relevant thereto, had and has the full power, authority and legal right
under its certificate of incorporation, partnership agreement, by-laws, and
other governing organizational documents, and the applicable corporate,
partnership, or other enterprise legislation and other applicable laws, as the
case may be (other than State Street, the Pass Through Trustee, Subordination
Agent, Loan Trustee or Paying Agent with respect to the laws of the United
States of America and the internal substantive laws of the State of Connecticut,
but only in each case to the limited extent the same may be applicable to State
Street, the Pass Through Trustee, Subordination Agent, Loan Trustee or Paying
Agent, and relevant to our opinions expressed below) to execute, and to perform
its obligations under, the Operative Documents, and (iii) each party to the
Operative Documents (other than State Street, the Pass Through Trustee,
Subordination Agent, Loan Trustee or Paying Agent, as applicable) has duly
executed and delivered each of such agreements and instruments to which it is a
party and that (other than with respect to State Street, the Pass Through
Trustee, Subordination Agent, Loan Trustee or Paying Agent, as applicable) the
execution and delivery of such Operative Documents and the transactions
contemplated thereby have been duly authorized by proper corporate or other
organizational proceedings as to such party.
(b) We have assumed without any independent investigation that each
of the Operative Documents is a valid, binding and enforceable obligation of
each party thereto other than State Street, the Pass Through Trustee,
Subordination Agent, Loan Trustee or Paying Agent, as applicable.
(c) The enforcement of any obligations of State Street, the Pass
Through Trustee, Subordination Agent, Loan Trustee or Paying Agent, as
applicable, under any of the Operative Documents may be limited by the
receivership, conservatorship and supervisory powers of bank regulatory agencies
generally, as well as by bankruptcy, insolvency, reorganization, moratorium,
marshaling or other laws and rules of law affecting the enforcement, generally
of creditors' rights and remedies (including such as may deny giving effect to
waivers of debtors' or guarantors' rights); and we express no opinion as to the
status under any fraudulent conveyance laws or fraudulent transfer laws of any
of the obligations of State Street, the Pass Through Trustee, Subordination
Agent, Loan Trustee or Paying Agent, as applicable, under any of the Operative
Documents.
(d) We express no opinion as to the availability of any specific or
equitable relief of any kind.
(e) The enforcement of any of your rights may in all cases be
subject to an implied duty of good faith and fair dealing and to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding at law or in equity) and, as to any of your rights to collateral
security, will be subject to a duty to, act in a commercially reasonable manner.
(f) We express no opinion as to the enforceability of any particular
provision of any of the Operative Documents relating to (i) waivers of rights to
object to jurisdiction or venue, or consents to jurisdiction or venue, (ii)
waivers of rights to (or methods of) service of process, or rights to trial by
jury, or other rights or benefits bestowed by operation of law, (iii) waivers of
any applicable defenses, setoffs, recoupments, or counterclaims, (iv) the grant
of powers of attorney to any person or entity, (v) exculpation or exoneration
clauses, indemnity clauses, and clauses relating to releases or waivers of
unmatured claims or rights, (vi) the imposition or collection of interest on
overdue interest or providing for a penalty rate of interest or late charges on
overdue or defaulted obligations, or the payment of any premium, liquidated
damages, or other amount which may be held by any court to be a penalty" or a
"forfeiture," or (vii) so-called "usury savings clauses" purporting to specify
methods of (or otherwise assure) compliance with usury laws or other similar
laws of any jurisdiction.
(g) We express no opinion as to the effect of events occurring,
circumstances arising, or changes of law becoming effective or occurring, after
the date hereof on the matters addressed in this opinion letter, and we assume
no responsibility to inform you of additional or changed facts, or changes in
law, of which we may become aware.
(h) No opinion is given herein as to the effect of usury laws (or
other similar laws) of any jurisdiction with respect to the Operative Documents.
In rendering the opinion set forth below in paragraph 6 as to
certain Connecticut tax matters, we have assumed that, for federal income tax
purposes, none of the Pass Through Trusts will be taxable as a corporation, but,
rather, each will be classified as a grantor trust under subpart E, Part I of
Subchapter J of Chapter I of Subtitle A of the Internal Revenue Code of 1986, as
amended, or as a partnership.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule I hereto and their successors and assigns in
connection with the transactions contemplated by the Operative Documents and may
not be used or relied upon by any other person or for any other purpose.
Based upon the foregoing and subject to the limitations and
qualifications set forth herein, we are of the opinion that:
1. State Street is a national banking association, validly formed
and existing and authorized to operate as a national banking association under
the laws of the United States of America is a "citizen of the United States"
within the meaning of Section 40102(a)(15) of Title 49 of the United States
Code, and, in its individual capacity or as Pass Through Trustee, Subordination
Agent, Loan Trustee or Paying Agent as the case may be, has the requisite
corporate and trust power and authority to execute, deliver and perform its
obligations under the Operative Documents and in its capacity as Pass Through
Trustee, to issue, execute, deliver and authenticate the Offered Certificates
delivered on the date herewith.
2. State Street, in its individual capacity or as Pass Through
Trustee, Subordination Agent, Loan Trustee or Paying Agent, as the case may be,
has duly authorized by all necessary corporate or trust action the Operative
Documents and has duly executed and delivered the Operative Documents, and the
Operative Documents constitute valid and binding obligations of State Street, in
its individual capacity or as Pass Through Trustee, Subordination Agent, Loan
Trustee or Paying Agent, as the case may be, enforceable against State Street,
in its individual capacity or as Pass Through Trustee, Subordination Agent, Loan
Trustee or Paying Agent, as the case may be, in accordance with their respective
terms.
3. The Certificates issued and dated on the date hereof have been
duly authorized and validly executed, issued, authenticated and delivered by
State Street as Pass Through Trustee pursuant to the terms of the Operative
Documents and are valid and binding obligations of the Pass Through Trustee,
enforceable against the Pass Through Trustee in accordance with their terms, and
the holders of the Certificates are entitled to the benefits of the applicable
Designated Agreements.
4. The authorization, execution, delivery and performance by State
Street, in its individual capacity or as Pass Through Trustee, Subordination
Agent, Loan Trustee or Paying Agent, as the case may be, of the Operative
Documents and the consummation of the transactions therein contemplated and
compliance with the terms thereof' and the issuance of the Certificates
thereunder do not and will not result in the violation of the provisions of the
charter documents or by-laws of State Street and, to the best of our knowledge,
do not conflict with, or result in a breach of any terms or provisions of, or
constitute a default under, or result in the creation or the imposition of any
lien, charge or encumbrance upon any property or assets of State Street in its
individual capacity or as Pass Through Trustee, Subordination Agent, Loan
Trustee or Paying Agent under any indenture, mortgage or other agreement or
instrument, in each case known to us, to which State Street in its individual
capacity or as Pass Through Trustee, Subordination Agent, Loan Trustee or Paying
Agent is a party or by which it or any of its properties is bound, or violate
any applicable Connecticut or federal law, rule or regulation governing State
Street's banking or trust powers, or, to the best of our knowledge, of any
judgment, license, registration, permit, order or decree, in each case known to
us, applicable to State Street in its individual capacity, or as Pass Through
Trustee, Subordination Agent, Loan Trustee or Paying Agent of any court,
regulatory body, administrative agency, government or Governmental body having
jurisdiction over State Street in its individual capacity or as Pass Through
Trustee, Subordination Agent, Loan Trustee or Paying Agent.
5. No authorization, approval, consent, license or order of, giving
of notice to, registration with, or taking of any other action in respect of,
any federal or state governmental authority or agency pursuant to any federal or
Connecticut law governing the banking or trust powers of State Street is
required for the authorization, execution, delivery and performance by State
Street, in its individual capacity or as Pass Through Trustee, Subordination
Agent, Loan Trustee or Paying Agent, as the case may be, of the Operative
Documents, the issuance of the Certificates or the consummation of any of the
transactions by State Street, in its individual capacity or as Pass Through
Trustee, Subordination Agent, Loan Trustee or Paying Agent, as the case may be,
contemplated thereby (except as shall have been duly obtained, given or taken);
and such authorization, execution, delivery, performance, consummation and
issuance do not conflict with or result in a breach of the provisions of any
such law.
6. There are no taxes, fees or other governmental charges ("Taxes")
payable under the laws of the State of Connecticut or any political subdivision
or taxing authority thereof with respect to the execution or delivery by State
Street, in its individual capacity or as Pass Through Trustee, as the case may
be, of any of the Operative Documents or the issuance, execution and delivery of
the Certificates by the Pass Through Trustee pursuant to the Designated
Agreements, or the purchase of the relevant Equipment Notes by the Pass Through
Trusts and (i) neither the Pass Through Trusts, nor the trust properties
thereof, nor the Pass Through Trustee (in its capacity as trustee) will be
subject to any Tax (including without limitation, net or gross income, tangible
or intangible property, net worth, capital, franchise or doing business tax),
imposed by the State of Connecticut or any political subdivision or taxing
authority thereof, and (ii) Certificate Owners (as defined in the Basic
Agreement) that are not residents of or otherwise subject to tax in Connecticut
will not be subject to any Tax (including, without limitation, net or gross
income, tangible or intangible property, net worth, capital, franchise or doing
business tax), imposed by the State of Connecticut or any political subdivision
or taxing authority thereof as a result of purchasing, owning (including
receiving payments with respect to) or selling a Certificate.
7. There are no Taxes payable under the laws of the State of
Connecticut, or any political subdivision of either such State with respect to
the execution and delivery by State Street, in its individual capacity or as
Subordination Agent or Loan Trustee, as the case may be, of the Operative
Documents or in connection with the issuance, authentication or delivery of the
Equipment Notes. There are no applicable Taxes under the laws of the State of
Connecticut or any political subdivision of such State or Commonwealth (other
than taxes imposed on the fees received by State Street for acting as Pass
Through Trustee, Loan Trustee under the Indentures or as Subordination Agent)
upon or with respect to (a) the construction, mortgaging, financing,
refinancing, purchase, acquisition, acceptance, rejection, delivery,
nondelivery, transport, location, ownership, insurance, control, registration,
reregistration, deregistration, assembly, possession, repossession, operation,
use, condition, maintenance, repair, sale, return, abandonment, replacement,
preparation, installation, storage, redelivery, manufacture, leasing,
subleasing, modification, rebuilding, importation, transfer of title, transfer
of registration, exportation or other application or disposition of the
Aircraft, any Engine or any Part or any interest in any thereof, (b) any amount
paid or payable pursuant to any Operative Document, (c) the Aircraft, any Engine
or any Part or any interest therein, (d) any or all of the Operative Documents,
any or all of the Equipment Notes or any interest in any or all thereof or the
offering, registration, reregistration, issuance, acquisition, modification,
assumption, reissuance, refinancing or refunding of any or all thereof, and any
other documents contemplated hereby or thereby and amendments and supplements
hereto and thereto, (e) the payment of the principal of, or interest or premium
on, or other amounts payable with respect to, any or all of the Equipment Notes,
whether as originally issued or pursuant to any refinancing, refunding,
assumption, modification or reissuance, or any other obligation evidencing any
loan in replacement of the loan evidenced by any or all of the Equipment Notes,
(f) the property, or the income, earnings, receipts or other proceeds received
with respect to the property, held by the Loan Trustee under the Indenture or by
the Subordination Agent under the Intercreditor Agreement, or (g) otherwise with
respect to or in connection with the transactions contemplated by the Operative
Documents, which would not have been imposed if neither the Loan Trustee nor the
Subordination Agent had its principal place of business in, had performed any or
all of its administrative duties under the Operative Documents in, and had
engaged in any activities unrelated to the transactions contemplated by the
Operative Documents in, the State of Connecticut.
8. To our knowledge, but without having investigated any
governmental records or court dockets, and without having made any other
independent investigation, there are no proceedings pending or overtly
threatened in writing against or affecting State Street in any court or before
any governmental authority, agency, arbitration board or tribunal which, if
adversely determined, individually or in the aggregate, could reasonably be
expected to affect materially and adversely the Pass Through Trusts or affect
the right, power and authority of State Street, in its individual capacity or as
Pass Through Trustee, Subordination Agent, Loan Trustee or Paying Agent, as the
case may be, to enter into or perform its obligations under the Operative
Documents or to issue the Certificates.
9. The statements in the Registration Statement and Prospectus under
the caption "Certain Connecticut Taxes", to the extent that they constitute
matters of law or legal conclusions with respect thereto, have been reviewed by
us and are correct in all material respects.
Very truly yours,
BINGHAM DANA LLP
SCHEDULE A
State Street Bank and Trust Company of
Connecticut, National Association
Delta Air Lines, Inc.
Standard & Poor's Ratings Services
Moody's Investors Service, Inc.
Salomon Smith Barney Inc.
J.P. Morgan Securities Inc.
Commerzbank Capital Markets Corp.
Mizuho International plc
SunTrust Capital Markets Inc.
Tokyo-Mitsubishi International plc
Credit Lyonnais Securities (USA) Inc.
KBC Financial Products USA Inc.
Cadwalader, Wickersham & Taft
EXHIBIT B
TO
UNDERWRITING
AGREEMENT
[Form of opinion of liquidity provider]
EXHIBIT C
TO
UNDERWRITING
AGREEMENT
[OPINION OF RICHARDS, LAYTON & FINGER, PA]
September 17, 2001
To The Parties Listed On
Schedule A Attached Hereto
Re: Delta Air Lines, Inc. Class D Certificate Trust
-----------------------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel to Delta Air Lines, Inc.
Class D Certificate Trust (the "Trust"), a Delaware business trust existing
pursuant to the Trust Agreement, dated as of September 17, 2001 (the "Trust
Agreement"), between Delta Air Lines, Inc. ("Delta") and [Wilmington Trust
Company], as trustee (the "Trustee"). This opinion is being delivered pursuant
to Section 4(b)(5) of the Underwriting Agreement dated September 6, 2001 between
Delta and certain underwriters named therein. Capitalized terms used herein and
not otherwise defined are used as defined in, or by reference in, the Trust
Agreement, except that reference herein to any document shall mean such document
as in effect on the date hereof.
We have examined originals or copies of the following documents:
(a) The Trust Agreement;
(b) A certified copy of the certificate of trust (the "Certificate
of Trust") of the Trust, which was filed with the Secretary of
State of the State of Delaware (the "Secretary of State") on
September 17, 2001; and
(c) A certificate of good standing, dated September 17, 2001,
obtained from the Secretary of State with respect to the
Trust.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (c) above. In
particular, we have not reviewed any document (other than the documents listed
in paragraphs (a) through (c) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent with
the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i)
the authenticity of all documents submitted to us as authentic originals, (ii)
the conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation, and termination of the Trust, and that the Trust Agreement and the
Certificate of Trust have not been amended, (ii) except to the extent provided
in paragraph 1 below, the due creation, due formation or due organization, as
the case may be, and valid existence in good standing of each party to the
documents examined by us under the laws of the jurisdiction governing its
creation, formation or organization, (iii) the legal capacity of each natural
person who is a party to the documents examined by us, (iv) except to the extent
provided in paragraphs 1 and 2 below, that each of the parties to the documents
examined by us has the power and authority to execute and deliver, and to
perform its obligations under, such documents, (v) that each of the parties to
the documents examined by us has duly authorized, executed and delivered such
documents, (vi) that the Trust derives no income from or connected with sources
within the State of Delaware and has no assets, activities (other than having a
trustee as required by the Delaware Business Trust Act, 12 Del. C. ss. 3801 et
seq. (the "Act") and filing documents with the Secretary of State) or employees
in the State of Delaware and (vii) that the execution, delivery and performance
of the documents examined by us by each of the parties thereto does not and will
not violate or require any consent or approval of, the withholding of objection
on the part of, the giving of notice to, the filing, registration or
qualification with, or the taking of any other action under, any agreement,
indenture or instrument to which it is a party or by which it is bound or any
provision of any law, rule, regulation, judgment, order, writ, injunction or
decree of any court or governmental authority applicable to it or any of its
property.
Based upon and subject to the foregoing and subject to the
assumptions, qualifications and limitations set forth herein, it is our opinion
that:
1. The Trust has been duly formed and is validly existing in good
standing as a business trust under the Act, and has the power and authority
under the Trust Agreement and the Act to own or hold its property.
2. The Trust Agreement constitutes a legal, valid and binding
agreement of Delta and the Trustee, enforceable against Delta and the Trustee,
in accordance with its terms.
3. Under ss. 3803(a) of the Act, Delta, in its capacity as a
beneficial owner of the Trust, is entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the general corporation law of the State of Delaware, except to the extent
otherwise provided in the Trust Agreement.
4. No creditor of Delta, in its capacity as a beneficial owner of
the Trust, or any other beneficial owner of the Trust shall have any right to
obtain possession of, or otherwise exercise legal or equitable remedies with
respect to, the property of the Trust, except in accordance with the terms of
the Trust Agreement, and such persons may not acquire any greater rights than
Delta or any other beneficial owner might have with respect to the Trust
Agreement.
5. Neither a Delaware court nor a federal court sitting in Delaware
and applying federal law or Delaware law, if properly presented with the issue
and after having properly considered such issue, would permit Delta to terminate
the Trust Agreement, except in accordance with its terms or with the consent of
the Class D Trustee and the Other Trustee.
6. The Trust is a separate legal entity and, insofar as the
substantive law of the State of Delaware is applicable, the Trust rather than
any beneficial owner of the Trust will hold whatever title to such property as
may be conveyed to it from time to time pursuant to the Trust Agreement or
otherwise, except to the extent that the Trust has taken action to dispose of or
otherwise transfer or encumber any such property.
7. Under the Act and the Trust Agreement, no beneficial owner of the
Trust (including, without limitation, Delta) will have a severable ownership
interest in any individual asset of the Trust or any right of partition or
possession thereof.
The foregoing opinions may be subject to the following assumptions,
exceptions and qualifications:
A. The foregoing opinions are limited to the laws of the State of
Delaware and, in the case of paragraph 5 above, Title 11 of the United States
Code entitled "Bankruptcy" (the "Bankruptcy Code") that are currently in effect.
We express no opinion with respect to (i) other federal laws, including, without
limitation, the Securities Act of 1933, as amended, the Trust Indenture Act of
1939, as amended, the Investment Company Act of 1940, as amended, or the Federal
Aviation Act of 1958, as amended, (ii) state securities or blue sky laws or
(iii) laws relating to the particular nature of the Trust assets.
B. The foregoing opinions regarding enforceability and the opinions
in paragraphs 3, 4, 6 and 7 are subject to (i) applicable bankruptcy,
insolvency, moratorium, reorganization, receivership, fraudulent transfer and
similar laws affecting the rights and remedies of creditors generally, (ii)
general principles of equity including applicable law relating to fiduciary
duties (regardless of whether considered in a proceeding in equity or at law),
and (iii) the effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
C. The opinion set forth in paragraph 5 is subject to, and we
express no opinion with respect to, (i) applicable avoidance actions, e.g.,
fraudulent conveyance and preference laws (including ss. 547 and ss. 548 of the
Bankruptcy Code) or (ii) principles of equity (regardless of whether considered
and applied in a proceeding in equity or at law).
D. We have not participated in the preparation of any offering
materials with respect to assets to be held by the Trust and assume no
responsibility for their contents.
E. The opinion in paragraph 5 should be interpreted in accordance
with the Special Report by The TriBar Opinion Committee, Opinions in the
Bankruptcy Context: Rating Agency, Structured Financing and Chapter 11
Transactions, 46 Bus. Law. 717 (1991).
This opinion may be relied upon by you in connection with the
matters set forth herein, subject to the understanding that this opinion is
given on the date hereof and only with respect to laws currently in effect.
Otherwise, without our prior written consent, this opinion may not be furnished
or quoted to, or relied upon by, any other person or entity for any purpose.
Very truly yours,
EXHIBIT D
[OPINION OF PILLSBURY WINTHROP]
SCHEDULE A
Delta Air Lines, Inc.
State Street Bank and Trust Company
of Connecticut, National Association
Standard & Poor's Ratings Services
Moody's Investors Service, Inc.
Salomon Smith Barney Inc.
J.P. Morgan Securities, Inc.
Commerzbank Capital Markets Corp.
Mizuho International plc
SunTrust Capital Markets Inc.
Tokyo-Mitsubishi International plc
Credit Lyonnais Securities (USA) Inc.
KBC Financial Products USA Inc.