1
S&C Draft of July 2, 1998
EXHIBIT 1(A)
DELTA AIR LINES, INC.
Pass Through Certificates
Underwriting Agreement
Standard Provisions
[Date]
From time to time, Delta Air Lines, Inc., a Delaware
corporation (the "Company"), may enter into one or more underwriting agreements
(each, an "Underwriting Agreement") that provide for the sale of Designated
Certificates (as defined below) to the several underwriters named therein. Each
Underwriting Agreement will consist of a pricing agreement substantially in the
form of Annex I hereto, which may incorporate by reference the standard
provisions set forth herein and include such additions and deletions as the
parties thereto may determine (the "Pricing Agreement"). For any Underwriting
Agreement, the term "Underwriters" means the firms named in Schedule I to the
applicable Pricing Agreement, and the term "Representatives" means the firms
designated in the Pricing Agreement as the Representatives of the Underwriters
in connection with such Underwriting Agreement. The term "Representatives" also
refers to a single firm acting as sole representative of the Underwriters and to
Underwriters who act without any firm being designated as their representative.
1. Sale of Pass Through Certificates. The Company proposes
that from time to time The Bank of New York as Pass Through Trustee or another
Pass Through Trustee identified in a Pricing Agreement (the "Pass Through
Trustee"), pursuant to the Pass Through Agreement, as supplemented by a
supplement thereto (each, a "Series Supplement") between the Company and the
Pass Through Trustee (such Pass Through Agreement, as supplemented by each
Series Supplement relating to the Designated Certificates (as defined below)
being herein referred to as the "Pass Through Agreement"), issue Pass Through
Certificates ("Pass Through Certificates") and, subject to the terms and
conditions set forth in the applicable Underwriting Agreement, sell to the
several Underwriters therefor the Pass Through Certificates specified in
Schedule II to the related Pricing Agreement (the
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"Designated Certificates"). Each series of Designated Certificates will
represent interests in a separate trust (each, a "Trust") established pursuant
to the Pass Through Agreement to fund the purchase of notes (with respect to any
series of Designated Certificates, the "Equipment Notes") issued (a) on a
nonrecourse basis by one or more owner trustees pursuant to separate leveraged
lease transactions (such Equipment Notes, the "Leased Aircraft Notes") to
finance or refinance a portion of the equipment cost of aircraft, including
engines (each, a "Leased Aircraft" and, collectively, the "Leased Aircraft"),
which have been or will be leased to the Company pursuant to a separate lease
agreement (each such lease agreement, a "Lease") for each Leased Aircraft, or
(b) by, and with recourse to, the Company (such Equipment Notes, the "Owned
Aircraft Notes") either (i) to finance or refinance all or a portion of the
equipment cost of, or to purchase all or a portion of the outstanding debt with
respect to, aircraft, including engines (each, an "Owned Aircraft" and,
collectively, the "Owned Aircraft"; together with Leased Aircraft, the
"Aircraft"), which have been or will be purchased and owned by the Company or
(ii) for the Company's general corporate purposes, using Owned Aircraft as
collateral. In the case of either Leased Aircraft Notes or Owned Aircraft Notes,
such financing or refinancing is referred to herein as a "Financing" or
"Refinancing", respectively; any financing contemplated by clause (ii) above
shall be deemed a "Financing" for purposes of this Agreement. In connection with
each series of Equipment Notes, the Company will enter into a separate note
purchase agreement (each a "Note Purchase Agreement") in the form given to the
Representatives prior to execution of the relevant Pricing Agreement. Each
series of Leased Aircraft Notes will be issued under a Trust Indenture and
Security Agreement between The Bank of New York, as indenture trustee, or
another indenture trustee identified in a Pricing Agreement (the "Loan
Trustee"), and the Owner Trustee (the "Leased Aircraft Indenture"), the form of
which has been given to the Representatives. Each series of Owned Aircraft Notes
will be issued under a Trust Indenture and Security Agreement between The Bank
of New York, as indenture trustee, or another indenture trustee identified in a
Pricing Agreement, as Loan Trustee, and the Company (the "Owned Aircraft
Indenture" and together with the Leased Aircraft Indenture, the "Indentures").
Capitalized terms used but not otherwise defined herein shall have the meaning,
with respect to each series of Pass Through Certificates as to which such
reference relates, specified in or pursuant to the Indenture or Note Purchase
Agreement relating to each related series of Equipment Notes.
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Each Pricing Agreement shall specify the aggregate face amount
of the Designated Certificates covered thereby, the initial public offering
price of such Designated Certificates, the purchase price to the Underwriters of
such Designated Certificates, the compensation payable to the Underwriters with
respect to such Designated Certificates, the names of the Underwriters of such
Designated Certificates, the names of the Representatives of such Underwriters
and the face amount of such Designated Certificates to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of such
Designated Certificates and payment therefor. The Pricing Agreement shall also
specify certain terms and rights of such Designated Certificates, and may
specify additional representations, warranties, agreements and conditions
applicable to the sale of such Designated Certificates. A Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. For each Underwriting Agreement, the obligations of the related
Underwriters shall be several and not joint.
The Company has filed with the Securities and Exchange
Commission (the "Commission") two registration statements on Form S-3 (File No.
333-[_____] and File No. 33-50175)(collectively, the "Initial Registration
Statement") relating to certain debt securities and pass through certificates,
including the Designated Certificates, and the offering thereof from time to
time in accordance with Rule 415 under the Securities Act of 1933, as amended
(the "Act"). The Company has filed with, or transmitted for filing to, or shall
within some period of time hereafter file with or transmit for filing to, the
Commission a prospectus supplement (the "Prospectus Supplement") specifically
relating to the Designated Certificates pursuant to Rule 424 under the Act.
The term "Preliminary Prospectus" means any preliminary
prospectus included in the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act. The term "Registration Statement" means the various
parts of the Initial Registration Statement, including all exhibits thereto and
including (i) the information contained in the form of final prospectus filed
with the Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to be part
of the registration
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statement at the time it was declared effective and (ii) the documents
incorporated by reference in the prospectus contained in the Initial
Registration Statement at the time such part of the registration statement
became effective but excluding Form T-1, each as amended at the time such part
of the registration statement became effective or such part of a registration
statement increasing the size of the offering filed pursuant to Rule 462(b)
under the Act (a "Rule 462(b) Registration Statement"), if any, became or
hereafter becomes effective, such final prospectus in form first filed pursuant
to Rule 424(b) under the Act, being hereafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Act, as of the date of such Preliminary Prospectus
or Prospectus, as the case may be; any reference to any amendment or supplement
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or the Prospectus, as the case may be; any reference to any amendment
to the Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange
Act after the effective date of the Registration Statement that is incorporated
by reference in the Registration Statement; and any reference to the Prospectus
as amended or supplemented shall be deemed to refer to the Prospectus as amended
or supplemented in relation to the applicable Designated Certificates in the
form in which it is filed with the Commission pursuant to Rule 424(b) under the
Act in accordance with Section 5(a) hereof, including any documents incorporated
by reference therein as of the date of such filing. The term "Pass Through
Documents" with respect to any Designated Certificates means the Underwriting
Agreement, the Pass Through Agreement, each Note Document (as defined in the
Pass Through Agreement); any Participation Agreement relating to the Equipment
Notes underlying such Designated Certificates, and each other agreement or
document referred to in the relevant Pricing Agreement; and the term "Company
PTC Documents" with respect to any Designated Certificates means the Pass
Through Documents relating to such Designated Certificates to which the Company
is or is intended to be a party.
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2. Representations and Warranties. For any Underwriting
Agreement and the related Designated Certificates the Company represents and
warrants to, and agrees with, each Underwriter therefor that:
(a) The Company meets the requirements for use of Form S-3
under the Act for purposes of the registration under the Act of the
Pass Through Certificates; the Company is the "issuer" within the
meaning of the Act and appropriate registrant with respect to the Pass
Through Certificates. The Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
to the Representatives and, excluding exhibits to the Initial
Registration Statement, but including all documents incorporated by
reference in the prospectus contained therein, to the Representatives
for each of the other Underwriters, has been declared effective by the
Commission in such form, other than a Rule 462(b) Registration
Statement, if any, which became effective upon filing; no other
document with respect to the Initial Registration Statement or document
incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission; no stop order suspending
the effectiveness of the Initial Registration Statement has been issued
and no proceeding for that purpose has been initiated or, to the
Company's knowledge, threatened by the Commission;
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
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; and any further documents so filed
and incorporated by reference in the Prospectus, when such documents
become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain 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;
provided, however, that this representation and warranty shall not
apply to any statements or
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omissions made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any
Representative expressly for use in the Prospectus as amended or
supplemented relating to such Designated Certificates;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date and Time of Delivery (as defined below) as
to the Prospectus and any amendment or supplement thereto, contain 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; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Representative with respect to
the Designated Certificates expressly for use in the Prospectus as
amended or supplemented relating to such Designated Certificates; on
the effective date of the Registration Statement the form of the Pass
Through Agreement filed as an exhibit to the Registration Statement did
comply in all material respects with the requirements of the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") and the
rules thereunder, and as of the Time of Delivery the Pass Through
Agreement will comply in all material respects with the requirements of
the Trust Indenture Act and the rules thereunder;
(d) Since the date of the latest financial statements included
or incorporated by reference in the 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 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 in or contemplated by the Prospectus;
(e) The Company is a corporation duly organized, validly
existing and in good standing under the laws of
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the State of Delaware, is a "citizen of the United States" within the
meaning of Section 40102 of the Federal Aviation Act of 1958, as
amended (the "Aviation Act") and holds an air carrier operating
certificate issued by the Secretary of Transportation pursuant to
Chapter 447 of the Aviation Act for aircraft capable of carrying 10 or
more individuals or 6,600 pounds or more of cargo, has the corporate
power, authority and legal right to own its properties or hold such
properties under lease, to execute and deliver the Company PTC
Documents with respect to such Designated Certificates and to perform
its obligations under each such Company PTC Document, and is duly
qualified to do business as a foreign corporation in good standing
under the laws of each other jurisdiction in which the failure to so
qualify would have a material adverse effect on the business or
operations of the Company and its subsidiaries, taken as a whole;
(f) The execution and delivery of the Company PTC Documents
relating to such Designated Certificates and the performance thereof,
in accordance with the provisions thereof, have been duly authorized by
all necessary corporate action on the part of the Company, do not
require any stockholder approval, or approval or consent of any trustee
or holder of any indebtedness or obligations of the Company, and do not
and will not contravene any law, judgment, governmental rule,
regulation, order or decree currently in effect or in effect at the
time of execution and delivery of such document and applicable to the
Company or any of its subsidiaries or the certificate of incorporation
or by-laws of the Company or any of its subsidiaries or contravene or
result in a breach of any of the terms or the provisions of, or
constitute a default under, or result in the creation of any Lien
(other than as permitted under each Lease and each Owned Aircraft
Indenture relating to a series of Equipment Notes) upon the property of
the Company under any indenture, mortgage, bank credit agreement, note
or bond purchase agreement, long-term lease, license or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which it or any of its subsidiaries may be bound or
affected, which contravention, breach or default would have a material
adverse effect on the financial condition or operations of the Company
and its subsidiaries, taken as a whole;
(g) Neither the valid authorization, execution and delivery by
the Company of the Company PTC
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Documents relating to such Designated Certificates in accordance with
the provisions thereof, nor the consummation by the Company of any of
the transactions contemplated thereby, requires the consent or approval
of, the giving of notice to, or the registration with, or the taking of
any other action in respect of, the U.S. Department of Transportation,
the Federal Aviation Administration (the "FAA"), the Commission or any
other federal or state governmental authority or agency, other than (i)
the registration of the issuance and sale of the Pass Through
Certificates under the Act and under the securities laws of any state
in which the Pass Through Certificates may be offered for sale if the
laws of such state require such action, (ii) the qualification of the
Pass Through Agreement under the Trust Indenture Act and (iii) the
filing of certain Operative Documents (as defined in the relevant Note
Purchase Agreement) and, in the case of a Refinancing, Original
Documents (as defined in the relevant Note Purchase Agreement), with
the FAA, all of which shall have been or shall be made on or prior to
each relevant Transfer Date (as defined in the Pass Through Agree-
ment);
(h) The Company PTC Documents (except, with respect to the
date of the Pricing Agreement, each Series Supplement and Company PTC
Document specified in the Pricing Agreement) relating to such
Designated Certificates have been duly executed and delivered by the
Company, and each such Company PTC Document constitutes a legal, valid
and binding obligation of the Company enforceable against the Company
in accordance with the terms thereof, subject, as to enforceability,
(A) to applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforceability of creditors' rights
generally, (B) to recognized equitable principles of general
application to or affecting the enforcement of creditors' rights, and
(C) to limitations on rights to indemnity under federal and state
securities laws or the public policy underlying such laws;
(i) None of the Trusts is required to be registered under the
Investment Company Act of 1940, as amended;
(j) The Operative Documents relating to each series of
Equipment Notes are substantially in the form filed or to be filed as
exhibits to the Registration Statement or in a post-effective amendment
thereto or a
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report by the Company under the Exchange Act, and the Pass Through
Agreement has been duly qualified under the Trust Indenture Act; the
Designated Certificates, Pass Through Agreement, Indentures, Note
Purchase Agreements, any Leases, any Participation Agreements, any
intercreditor agreement, any liquidity facility and other Operative
Documents relating to each series of Equipment Notes, conform or will
upon execution conform in all material respects to the descriptions
thereof in the Prospectus as amended or supplemented relating to such
Designated Certificates;
(k) Assuming the accuracy of the representations and
warranties of the Pass Through Trustee contained in each Note Purchase
Agreement and in any Participation Agreement relating to a series of
Equipment Notes, the Pass Through Certificates issued or to be issued
under the Pass Through Agreement, when duly authorized, executed,
authenticated and delivered by the Pass Through Trustee in accordance
with the terms thereof, will be duly issued thereunder and will
constitute the valid and binding obligation of the Pass Through
Trustee; and the holders thereof will be entitled to the benefits of
the Pass Through Agreement; in each case subject as to enforceability
to applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and to equitable principles of general applicability;
(l) The documents incorporated by reference into each
Preliminary Prospectus and Prospectus have been, and each document
filed by the Company hereafter pursuant to Section 13, 14 or 15(d) of
the Exchange Act prior to the termination of the offering of the
Designated Certificates (such subsequently filed documents being
referred to herein as "Incorporated Documents") will be, prepared by
the Company in conformity in all material respects with the
requirements of the Exchange Act and the rules and regulations
thereunder and such documents have been, or in the case of an
Incorporated Document will be, timely filed as required thereby;
accurate copies of each of the documents incorporated by reference into
each Preliminary Prospectus and the Prospectus have been delivered by
the Company to the Representatives and accurate copies of any
Incorporated Documents will be delivered to the Representatives
promptly upon filing thereof;
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(m) The financial statements filed as part of the Registration
Statement or included in, or incorporated by reference into, any
Preliminary Prospectus or Prospectus present fairly, and the financial
statements included in any Incorporated Document will present fairly,
the financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods
indicated, and have been, and in the case of financial statements
included in any Incorporated Document will be, prepared in conformity
with generally accepted accounting principles applied on a consistent
basis throughout the periods involved, except as approved by Xxxxxx
Xxxxxxxx LLP. Xxxxxx Xxxxxxxx LLP, who certified the consolidated
financial statement of the Company and its consolidated subsidiaries
for the most recent fiscal year included or incorporated by reference
in the Registration Statement and Prospectus, are independent public
accountants as required by the Act and the rules thereunder; and
(n) Other than as set forth in the 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, is 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.
In addition, for any Underwriting Agreement and the related
Designated Certificates, all of the representations and warranties by the
Company contained in each Note Purchase Agreement and any Participation
Agreement relating to a series of Equipment Notes are incorporated by reference
in such Underwriting Agreement as if set forth herein, and the Company
represents and warrants to each of the Underwriters with respect to such
Designated Certificates that such representations and warranties are true and
correct as of the date of the Pricing Agreement with respect to such Designated
Certificates, except to the extent that such representations and warranties
relate solely to an earlier date or later date (in which case such representa-
tions and warranties are correct on and as of such earlier date or will be
correct on and as of such later date, as the case may be).
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3. Offer by Underwriters. Upon the execution of the Pricing
Agreement applicable to any Designated Certificates and authorization by the
Representatives of the release of such Designated Certificates, the several
Underwriters propose to offer such Designated Certificates for sale upon the
terms and conditions set forth in the related Prospectus as amended or
supplemented with respect to such Designated Certificates.
4. Delivery and Payment. Designated Certificates to be
purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, in definitive form to the extent practicable, and in such authorized
denominations and registered in such names as the Representatives may request
upon at least forty-eight hours' prior notice to the Company, shall be delivered
by or on behalf of the Company to the Representatives for the account of such
Underwriter, at the place and time and date specified in such Pricing Agreement
or at such other place and time and date as the Representatives and the Company
may agree upon in writing or as provided in Section 9 hereof (such date being
herein called the "Closing Date" and such time of delivery and payment for the
Certificates being herein called the "Time of Delivery"). Such delivery of the
Designated Certificates shall be made to the Representatives for the account of
each such Underwriter against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer, payable to the order of the Pass
Through Trustee (or such other person as the Company may direct) in Federal
(same day) funds specified in such Pricing Agreement.
The Company agrees to have the Certificates available for
inspection, checking and packaging by the Representatives in New York, New York,
not later than 1:00 P.M. on the business day prior to the Closing Date.
5. Agreements. The Company agrees with each of the
Underwriters of any Designated Certificates:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Certificates in a form reasonably
approved by the Representatives and to file such Prospectus pursuant to
Rule 424(b) under the Act not later than the Commission's close of
business on the second business day following the execution and
delivery of the Pricing Agreement relating to the applicable Designated
Certificates or, if applicable, such earlier time as may be required by
Rule 424(b); to make no further amendment or any supplement to the
Registration
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Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Designated Certificates and
prior to the Time of Delivery for such Designated Certificates which
shall be reasonably disapproved by the Representatives for such
Designated Certificates promptly after reasonable notice thereof; to
advise the Representatives promptly of any such amendment or supplement
after such Time of Delivery and furnish the Representatives with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Designated Certificates,
and during such same period to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed,
or transmitted for filing, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to such Designated Certificates, of the suspension
of the qualification of such Designated Certificates for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to such Designated
Certificates or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(b) To cooperate with you and counsel for the Underwriters for
the qualification of such Designated Certificates for sale under the
laws of such jurisdictions as you may reasonably designate, to maintain
such qualifications in effect so long as required for the distribution
of such Designated Certificates and will cooperate with you and counsel
for the Underwriters in determining the legality of such Designated
Certificates for purchase by institutional investors. The Company,
however, shall not be obligated to qualify as a foreign corporation or
file any general consent to service of process under
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the laws of any such jurisdiction or subject itself to taxation as
doing business in any such jurisdiction;
(c) As soon as practicable but in no case later than noon, New
York City time, on the New York Business Day next succeeding the date
of any Pricing Agreement and from time to time, to furnish the
Underwriters with copies of the Prospectus in New York City in such
quantities as the Representatives may reasonably request, and, if the
delivery of a prospectus is required at any time in connection with the
offering or sale of such Designated Certificates and if at such time
any event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Act, the Exchange Act or the Trust
Indenture Act, to notify the Representatives and upon their request to
file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities (it being understood that
each such Underwriter and dealer shall, at the Company's request, be
specified by the Representatives to the Company) as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance; and in case the
Representatives or any of the Underwriters or any dealer in securities
is required to deliver a prospectus in connection with sales of any
Designated Certificates at any time nine months or more after the time
of issue of the Prospectus as amended or supplemented relating to such
Designated Certificates, then upon the request of the Representatives,
but at the expense of the Representatives, the relevant Underwriters or
the relevant dealers in securities, as the case may be, the Company
shall prepare and deliver to the Representatives, such Underwriters or
such dealers in securities as many copies as the Representatives may
request of any amended or supplemented prospectus complying with
Section 10(a)(3) of the Act;
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(d) To make generally available to its security holders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c)), an earning statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including at
the option of the Company Rule 158);
(e) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M., Washington,
D.C. time, on the date of the applicable Pricing Agreement, and the
Company shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act; and
(f) During the period beginning from the date of the Pricing
Agreement for such Designated Certificates and continuing to and
including the earlier of (i) the termination of trading restrictions
for such Designated Certificates, as notified to the Company by the
Representatives, and (ii) the Time of Delivery for such Designated
Certificates, not to offer, sell, contract to sell or otherwise dispose
of any public debt securities registered under the Act or any debt
securities which may be sold in a transaction exempt from the
registration requirements of the Act in reliance on Rule 144A under the
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 Act without the prior
written consent of the Representatives, which consent shall not be
unreasonably withheld.
In addition, the Company agrees with each Underwriter of
Designated Certificates that, if the purchase of any Equipment Notes, or if the
purchase of Equipment Notes is delayed pursuant to a Postponement Notice (as
defined in the Pass Through Agreement) then, prior to any such purchase all
conditions specified in any related Participation Agreement, Note Purchase
Agreement or Pass Through Agreement to be performed or satisfied at or prior to
such purchase shall have been performed or satisfied; and the Company will
provide (or cause to be provided) to the
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Representatives executed copies of all documents delivered under such
Participation Agreement, Note Purchase Agreement or Pass Through Agreement and
of each opinion to be delivered pursuant to such Participation Agreement (other
than any opinion delivered to an Owner Participant (in the case of any Leased
Aircraft Notes) relating solely to tax matters), Note Purchase Agreement or Pass
Through Agreement, addressed to the Representatives on behalf of the
Underwriters or accompanied by a letter from counsel rendering such opinion
authorizing the Underwriters to rely on such opinion as if it were addressed to
them.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters of any Designated Certificates under the
Underwriting Agreement relating to such Designated Certificates shall be
subject, at the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Underwriting Agreement relating to such
Designated Certificates are, at and as of the Time of Delivery for such
Designated Certificates, true and correct in all material respects, except to
the extent that such representations and warranties relate solely to an earlier
date or later date (in which case such representations and warranties are
correct on and as of such earlier date or will be correct on and as of such
later date, as the case may be), the condition that the Company shall have
performed in all material respects all of its obligations under such
Underwriting Agreement theretofore to be performed, and the following additional
conditions:
(a) The Prospectus as amended and supplemented in relation to
the applicable Designated Certificates shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; if the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall
have become effective by 10:00 P.M., Washington, D.C. time, on the date
of the Pricing Agreement; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with
to the Representatives' reasonable satisfaction;
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(b) At the Time of Delivery, the Representatives shall have
received:
(1) An opinion of King & Spalding, special counsel
for the Company, dated the Time of Delivery for the Designated
Certificates, in substantially the form of Exhibit A attached
hereto;
(2) Counsel for the Company reasonably satisfactory
to the Representatives (it being understood that the Company's
General Counsel, Associate General Counsel or an Assistant
General Counsel is reasonably satisfactory to the
Representatives) shall have furnished to the Representatives
their written opinion, dated the Time of Delivery for the
Designated Certificates, in substantially the form of Exhibit
B attached hereto;
(3) Counsel for the Pass Through Trustee shall have
furnished to the Representatives their written opinion, dated
the Time of Delivery for the Designated Certificates, in
substantially the form of Exhibit C attached hereto;
(4) Counsel for the Underwriters shall have furnished
to the Representatives such opinion or opinions, dated the
Time of Delivery for the Designated Certificates, with respect
to the incorporation of the Company, the validity of the
Designated Certificates and the Pass Through Agreement with
respect thereto, the Registration Statement, the Prospectus
and other related matters as you may reasonably request, and
such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon
such matters;
(5) A certificate of the Company, signed by any two
of the Chairman, President, Senior Vice President-Finance,
Vice President-Treasurer or Vice President-Comptroller, dated
the Time of Delivery for the Designated Certificates, to the
effect that:
(i) the representations and warranties of
the Company in or incorporated in such Underwriting
Agreement are true and correct in all material
respects on and as of the
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Time of Delivery with the same effect as if made at
the Time of Delivery and the Company has complied
with all the agreements and satisfied all the
conditions herein and in each Note Purchase Agreement
and any Participation Agreement relating to a series
of Equipment Notes on its part to be performed or
satisfied at or prior to the Time of Delivery;
(ii) no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or,
to the Company's knowledge, threatened; and
(iii) since the date of the latest financial
statements included or incorporated by reference in
the Prospectus, there has been no material adverse
change in the 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 in
or contemplated in the Prospectus as amended or
supplemented;
(c) On the date of the Pricing Agreement for such Designated
Certificates and at the Time of Delivery for the Designated
Certificates, Xxxxxx Xxxxxxxx LLP, the independent accountants of the
Company, who have audited the financial statements of the Company and
its subsidiaries included or incorporated by reference in the
Registration Statement, shall have furnished to the Representatives a
letter, dated the effective date of the Registration Statement or the
date of the most recent report filed with the Commission containing
financial statements and incorporated by reference in the Registration
Statement, if the date of such report is later than such effective
date, and a letter dated such Time of Delivery, respectively, to the
effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
reasonably satisfactory to the Representatives;
(d) Subsequent to the time of execution of the Pricing
Agreement relating to the Designated
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Certificates, there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (c) of this
Section 6 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 the reasonable
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the public offering or the
delivery of the Designated Certificates as contemplated by the
Prospectus as amended or supplemented;
(e) Subsequent to the time of execution of the Pricing
Agreement relating to the Designated Certificates (i) there shall not
have been any decrease in the ratings of any of the Company's debt
securities by Standard & Poor's Ratings Service or Xxxxx'x Investors
Service, Inc. 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
(f) All conditions specified in each Note Purchase Agreement
and any Participation Agreement relating to a series of Equipment Notes
to be performed or satisfied on or prior to the relevant Transfer Date
shall have been performed or satisfied; and the Representatives shall
have received copies of all documents delivered under each such Note
Purchase Agreement and Participation Agreement, which shall be executed
copies in the case of Operative Documents and such other documents as
the Representatives shall reasonably request and shall be true and
complete copies of executed documents in the case of any other
documents, and executed copies of each opinion to be delivered pursuant
to each such Note Purchase Agreement and Participation Agreement (other
than, in the case of any Leased Aircraft Notes, any opinion delivered
to the Owner Participant relating to solely tax matters), addressed to
the Representatives on behalf of the Underwriters or accompanied by a
letter from counsel rendering such opinion authorizing the Underwriters
to rely on such opinion as if it were addressed to them; provided,
however, that this condition (f) need not be satisfied prior to the
Time of Delivery with respect to conditions specified in any such Note
Purchase Agreement or Participation Agreement under which the
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purchase of the Equipment Notes contemplated thereby is delayed until
after the Time of Delivery pursuant to a Postponement Notice to the
Pass Through Trustee pursuant thereto;
(g) Prior to the Time of Delivery, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request; and
(h) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of the Pricing
Agreement.
All such opinions, certificates, letters and documents shall
be deemed to be in compliance with the provisions hereof only if they are in all
material respects reasonably satisfactory to the Representatives and counsel to
the Underwriters; provided, however, to the extent that any of the matters set
forth in the opinions annexed as Exhibits A, B or C hereto shall be separately
covered in substantially the same form in legal opinions of the relevant legal
counsel addressed to the Representatives and delivered at the Time of Delivery
in connection with the Note Purchase Agreement or Participation Agreements, such
other legal opinions shall be deemed to satisfy the foregoing requirements to
the extent of the matters covered.
For any Underwriting Agreement, if any condition specified in
this Section shall not have been fulfilled in all material respects 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 the
Representatives, or such Underwriting Agreement may be terminated by the
Representatives by written notice to the Company at, or at any time prior to,
the Time of Delivery for the related Designated Certificates. Notice of such
termination shall be given to the Company in writing or by oral communication or
telegraph confirmed in writing.
7. Payment of Expenses. For any Underwriting Agreement, the
Company will pay the reasonable costs incident to the authorization, issuance,
sale and delivery of the Designated Certificates to be sold to the Underwriters
and any taxes payable in that connection; the reasonable costs (other than fees
and disbursements of counsel for the Underwriters, except as provided below)
incident to the preparation, printing and filing under the Act of the
Registration Statement and any amendments and
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exhibits thereto, any Preliminary Prospectus and the Prospectus and any
amendments or supplements thereto; the costs incident to the preparation,
printing and filing of any document and any amendments and exhibits thereto
required to be filed by the Company under the Exchange Act, any Incorporated
Document or any other document relating to any of the transactions contemplated
by any of the Note Purchase Agreements or Participation Agreements relating to
the Equipment Notes in connection with any such transaction or the related
Financing or Refinancing, as the case may be; the costs of distributing the
Registration Statement as originally filed and each amendment thereto (including
exhibits), any Preliminary Prospectus, the Prospectus and any amendment or
supplement to the Prospectus and any documents incorporated by reference in any
of the foregoing documents, as provided in such Underwriting Agreement; the fees
paid to rating agencies in connection with the rating of the Designated
Certificates; the costs incident to issuance and delivery of the Designated
Certificates to the Underwriters; the fees and expenses of qualifying the
Designated Certificates under the securities laws of the several jurisdictions
as provided in this Section and of preparing a Blue Sky Memorandum and a
memorandum concerning the legality of the Designated Certificates as an
investment (including reasonable fees and disbursements and other charges of
counsel to the Underwriters ("Blue Sky Fees")); and all other costs and expenses
incident to the performance of the obligations of the Company under such
Underwriting Agreement; provided that, except as provided in this Section and in
Sections 8 and 12, each of the Underwriters shall pay its own expenses
(including the fees of counsel for the Underwriters (other than Blue Sky Fees))
and the expenses of advertising any offering of the Designated Certificates made
by it.
8. Indemnification and Contribution. For any Underwriting
Agreement: (a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or in any amendment thereof, or in any
Preliminary Prospectus, preliminary prospectus supplement relating to the
Designated
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Certificates or the Prospectus, or in any amendment thereof or supplement
thereto, or in any other prospectus relating to the Pass Through Certificates,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, 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 such loss, claim, damage,
liability or action; provided, however, that (i) the Company will 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 any such 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 or on behalf of
the Representatives specifically for use therein, (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 did not send or deliver to the person asserting any such loss,
claim, damage or liability and who purchased the Designated Certificates which
are the subject thereof a copy of the Prospectus as amended or supplemented
excluding documents incorporated therein by reference at or prior to the written
confirmation of the sale of such Designated Certificates to such person in any
case where such delivery is required by the 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 (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 signs the
Registration Statement, and each person who controls the Company within the
meaning of either the 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,
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liability or action, but only with reference to written information furnished to
the Company by or on behalf of any Underwriter specifically for inclusion in the
Registration Statement, any Preliminary Prospectus, any preliminary prospectus
supplement relating to the Designated Certificates, the Prospectus, or in any
amendment thereof or supplement thereto, or any other prospectus relating to the
Designated Certificates. 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 8 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 8 (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 such indemnified
party otherwise than under this Section 8 (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 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 8 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
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(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel, approved by the Underwriters
in the case of paragraph (a) of this Section 8, 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 of 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 8 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
investigating 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 Designated 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 shall be deemed to be
in the same proportion as the total proceeds from such offering net of
compensation paid to the Underwriters with respect thereto (but before deducting
expenses) bear to the total underwriting discounts and commissions received by
such Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
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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). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding (including any governmental investigation) against such party in
respect of which a claim for contribution may be made against another party or
parties under this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have here under or otherwise than under this
paragraph (d), except to the extent that the party or parties is prejudiced
thereby. 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 applicable Designated 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 Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 8, each person
who controls any Underwriter within the meaning of either the Act or 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 Act or the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement 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
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paragraph (d). The obligations of the Underwriters of Designated Certificates in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Designated Certificates and not
joint.
9. Default by an Underwriter. (a) If any Underwriter shall
default in its obligation to purchase the Designated Certificates which it has
agreed to purchase under the Underwriting Agreement relating to such Designated
Certificates, the Representatives with respect thereto may in their discretion
arrange for themselves or another party or other parties to purchase such
Designated Certificates on the terms contained herein. If within thirty-six
hours after such default by any Underwriter such Representatives do not arrange
for the purchase of such Designated Certificates, then the Company shall be
entitled to a further period of thirty-six hours within which to procure another
party or other parties reasonably satisfactory to the Representatives to
purchase such Designated Certificates on such terms. In the event that, within
the respective prescribed period, such Representatives notify the Company that
they have so arranged for the purchase of such Designated Certificates, or the
Company notifies such Representatives that it has so arranged for the purchase
of such Designated Certificates, such Representatives or the Company shall have
the right to postpone the Time of Delivery for such Designated Certificates for
a period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus or in
any other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the reasonable opinion of such Representatives 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 the Underwriting Agreement with respect to such Designated
Certificates.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Certificates of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate face amount of any series of such Designated
Certificates which remains unpurchased does not exceed one-eleventh of the
aggregate face amount of the relevant series of such Designated Certificates,
then the Company shall have the right to require each non-defaulting Underwriter
to purchase the face amount of Designated
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Certificates which such Underwriter agreed to purchase under the Underwriting
Agreement relating to such Designated Certificates and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the
face amount of Designated Certificates which such Underwriter agreed to purchase
under such Underwriting Agreement) of the Designated Certificates 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 Designated Certificates of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate face amount of any series of Designated Certificates
which remains unpurchased exceeds one-eleventh of the aggregate face amount of
the relevant series of such Designated Certificates, as referred to in
subsection (b) above, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase
Designated Certificates of a defaulting Underwriter or Underwriters, then the
Underwriting Agreement relating to such Designated Certificates 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 Sections 7 and 12 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. Termination. Any Underwriting Agreement shall be subject
to termination in the discretion of the Representations with respect thereto, by
notice given to the Company prior to Time of Delivery for the applicable
Designated Certificates, 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 the reasonable judgment of such
Representatives, impracticable to market such Designated Certificates.
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11. Representations and Indemnities to Survive. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Underwriters as set forth in or made by or
pursuant to any Underwriting 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 such Underwriter or the Company or any of the
officers, directors or controlling persons of the Company or the Underwriters
referred to in Section 8 hereof, and shall survive delivery of and payment for
the Designated Certificates relating to such Underwriting Agreement. The
provisions of Sections 8, 11 and 12 of such Underwriting Agreement shall survive
the termination or cancellation of such Underwriting Agreement.
12. Reimbursement of Underwriters' Expenses. If the
Underwriting Agreement relating to the sale of any Designated Certificates shall
be terminated pursuant to Section 9 or Section 10 hereof, then the Company shall
not then be under any liability to any Underwriter with respect to the
Designated Certificates relating to such Underwriting Agreement except as
provided in Section 7 and Section 8 hereof; but if the sale of any Designated
Certificates is not consummated because any condition set forth in Section 6
hereof is not satisfied, because of any termination pursuant to Section 10
hereof or because of any refusal, inability or failure on the part of the
Company to perform any agreement in the Underwriting Agreement relating to such
Designated Certificates or comply with any provision thereof other than by
reason of a default by any of the Underwriters for such Designated Certificates,
the Company will reimburse such Underwriters severally through the
Representatives upon demand for all reasonable out-of-pocket expenses approved
in writing by the Representatives (including reasonable fees and disbursements
of counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Designated Certificates but the Company shall
then be under no further liability to any Underwriter with respect to such
Designated Certificates except as provided in Section 7 and Section 8 hereof.
13. Notices. In all dealings hereunder, the Representatives of
the Underwriters of Designated Certificates shall act on behalf of each of such
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 such Representatives jointly or by such of the Representatives, if
any, as may be designated for such purpose in the Pricing Agreement.
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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 the address of the Representatives as
set forth in the Pricing Agreement; 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: Treasurer (with a copy to the
General Counsel); provided, however, that any notice to an Underwriter pursuant
to Section 8(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 the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
14. Successors. Each Underwriting Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters thereunder, the
Company and, to the extent provided in Section 8 and Section 11 hereof, the
officers and directors of the Company and each person who controls the Company
or any such 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 such Underwriting Agreement. No purchaser of any of the
Pass Through Certificates from any Underwriter therefor shall be deemed a
successor or assign by reason merely of such purchase.
15. Time is of Essence. Time shall be of the essence of each
Underwriting Agreement. As used herein, "business day" shall mean any day when
the Commission's office in Washington, D.C. is open for business and "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
16. APPLICABLE LAW. EACH UNDERWRITING AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. Counterparts. Each Underwriting Agreement may be executed
by any one or more of the parties thereto 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.
Very truly yours,
DELTA AIR LINES, INC.
By:
------------------------------
Name:
Title:
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Annex I
Underwriting Agreement
PRICING AGREEMENT
Dear Sirs:
Delta Air Lines, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions set forth or incorporated by
reference herein to cause the Pass Through Trustee (as defined in the Standard
Provisions referred to below) to issue and sell to each of the Underwriters
named in Schedule I hereto (the "Underwriters") the Pass Through Certificates,
Series __, specified in Schedule II hereto (the "Designated Certificates"). Each
of the provisions of the document entitled Delta Air Lines, Inc. Pass Through
Certificates Underwriting Agreement Standard Provisions dated _________, 1998
(the "Standard Provisions") is incorporated herein by reference in its entirety,
and shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Standard Provisions so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Standard Provisions are used herein as therein defined. The
Representative designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Certificates pursuant to Section
13 of the Underwriting Agreement and the address of the Representatives referred
to in such Section 13 are set forth at the end of Schedule II hereto.
Subject to the terms and conditions set forth or incorporated
by reference herein, each of the Underwriters agrees, severally and not jointly,
to purchase from the Pass Through Trustee, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II hereto, the face
amount of each series of Designated Certificates set forth opposite the name of
such Underwriter in Schedule I hereto.
As compensation to each of the Underwriters for their
respective commitments and obligations hereunder in respect of the Designated
Certificates, including their undertaking to offer the Designated Certificates
for sale to the public, the Company will pay (or cause to be paid) to
30
the Representatives for the respective accounts of the Underwriters the
percentage of the aggregate face amount of each series of Designated
Certificates purchased by each Underwriter as set forth on Schedule II hereto.
Such payment will be made by wire transfer in Federal (same day) funds to the
order of _______________ at the time heretofore agreed by the Company and the
Representatives.
If the foregoing is in accordance with your understanding,
please sign and return to us four counterparts hereof, and upon acceptance
hereof to you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Standard Provisions
incorporated by reference herein, 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 or will be 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.
Very truly yours,
DELTA AIR LINES, INC.
By:
-----------------------------
Name:
Title:
Accepted as of the date hereof:
[Name of designated Representative]
By:
-------------------------------
[Title:]
On behalf of each of the Underwriters
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SCHEDULE I
Face
Amount of
Designated
Certificates
to be
Underwriter Purchased *
----------- ------------
---------------------- . . . . . . . . . . . . . . . . . . . . . . . . ----------
---------------------- . . . . . . . . . . . . . . . . . . . . . . . . ----------
---------------------- . . . . . . . . . . . . . . . . . . . . . . . . ----------
* Repeat column for each series of Designated
Certificates.
----------
Total . . . . . . . . . . ==========
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SCHEDULE II
Title of Designated Certificates:
Aggregate face amount:
Price to Public:
Purchase Price of Underwriters:
Final Maturity:
Rate:
Regular Distribution Dates:
Special Distribution Dates:
Record Dates:
Denominations:
Compensation to Underwriters (as a percentage of face amount of Designated
Certificates):
Concession to Dealers (as a percentage of face amount of Designated
Certificates):
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Reallowance Concessions (as a percentage of face amount of Designated
Certificates):
Time of Delivery:
Closing Location:
Names and addresses of Representatives:
Trust Property:
The property held in each Trust relating to the [Series __ and Series
__] Designated Certificates will consist of [leased aircraft notes(the
"Leased Aircraft Notes" or "Equipment Notes")from each of _______
separate series of Leased Aircraft Notes being issued as nonrecourse
obligations by the Owner Trustee in connection with the [financing]
[refinancing] of the [debt] [equity] portion of the purchase price paid
by such Owner Trustee on behalf of _______ separate Owner Trusts,
respectively, in respect of ___ separate Aircraft which were leased to
the Company in ______ separate leveraged lease transactions identified
on Annex A hereto] [and] [owned aircraft notes ("Owned Aircraft Notes"
or "Equipment Notes") being issued with recourse to the Company [in
connection with the [financing] [refinancing] of the [debt] [equity]
portion of the purchase price paid by the Company in respect of
___separate Aircraft][for the Company's general corporate purposes,
using Owned Aircraft as collateral]. Each Trust will include Equipment
Notes with identical interest rates, in each case equal to the rate
applicable to the [Series __ or Series __] Designated Certificates, as
the case may be, and will have maturity dates on or before the final
distribution date for the [Series __ or Series __] Designated
Certificates, as the case may be. For each such Trust, the aggregate
principal amount of the Equipment Notes held in such Trust will equal
the aggregate amount of the related series of Designated Certificates.
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Other Terms:
For each of the ______ Aircraft, ______ series of Equipment Notes, each
of which will have a different principal amount, interest rate,
maturity date and schedule of principal payments, will be issued under
the related Indenture. The aggregate principal amounts of the Equipment
Notes issued with respect to each Aircraft, as such Equipment Notes are
held in each of the Trusts, are as set forth on Annex B hereto.
Additional Covenants:
The Company agrees with each of the Underwriters to cause to be filed
with the Securities and Exchange Commission prior to the Time of
Delivery the following agreements:
[refer to Operative Documents and Pass Through
Documents other than the Pass Through Agreement
and the Indentures].
[Intercreditor Arrangements: Specify and provide details, if any.]
[Liquidity Facility or Other Credit Support: Specify and provide details, if
any.]
Additional Pass Through Documents:
[Liquidity Facility documents]
[Intercreditor Agreement]
[Deposit Agreement or similar arrangement referred to
in Section 2.01 of the Pass Through Agreement]
[Variation of Standard Terms: Specify, if any]
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Xxxxx XX
DELTA AIR LINES, INC.
Pursuant to Section 6(c) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the
Act or the Exchange Act, as applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified
in such letter, as indicated in their reports thereon, copies of which
have been furnished to the representative or representatives of the
Underwriters (the "Representatives") such term to include an
Underwriter or Underwriters who act without any firm being designated
as its or their representatives and are attached hereto;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of operations,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
report on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which are attached hereto;
and on the basis of specified procedures including inquiries of
officials of the Company who have
36
responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to
in paragraph (vi)(A)(i) below comply as to form in all, material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations, nothing
came to their attention that caused them to believe that the unaudited
condensed consolidated financial statement do not comply as to form in
all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for five
such fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus
under selected captions with the disclosure requirements of Regulation
S-K and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing procedures
that caused them to believe that this information does not conform in
all material respects with the disclosure requirements of Items 301,
302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries
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37
of officials of the Company and its subsidiaries responsible for
financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated
statements of operations, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and
regulations, or (ii) any material modifications should be made
to the unaudited condensed consolidated statements of
operations, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus or
included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited financial
statements from which such data and items were derived, and
any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial
statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis
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38
substantially consistent with the basis for the audited
financial statements included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and
its subsidiaries, or any decreases in consolidated net current
assets or stockholders' equity or other items specified by the
Representatives, in each case as compared with amounts shown
in the latest balance sheet included or incorporated by
reference in the Prospectus except in each case for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (E)
there were any decreases in consolidated operating revenues or
operating income or the total or per share amounts of
consolidated net income available to common shareholders or
other items specified by the Representatives, or any increases
in any items specified by the Representatives, except in each
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39
case for increases or decreases which the
Prospectus discloses have occurred or may occur or
which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records
of the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by
the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be
deemed to refer to the Prospectus (including the documents incorporated by
reference therein) as defined in the Underwriting Agreement as of the date of
the letter delivered on the date of the Pricing Agreement for purposes of such
letter and to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
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