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EXHIBIT 1
DELTA AIR LINES, INC.
Pass Through Certificates, Series 2000-1
UNDERWRITING AGREEMENT
Dated: November 7, 2000
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DELTA AIR LINES, INC.
Enhanced Pass Through Certificates, Series 2000-1
UNDERWRITING AGREEMENT
November 7, 2000
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
Chase Securities Inc.
Salomon Smith Barney Inc.
Banc of America Securities LLC
Credit Lyonnais Securities (USA) Inc.
Tokyo-Mitsubishi International plc
The Williams Capital Group, L.P.
BNY Capital Markets, Inc.
Guzman & Company
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York, 10036
Ladies and Gentlemen:
Delta Air Lines, Inc., a Delaware corporation (the "COMPANY"), proposes
that State Street Bank and Trust Company of Connecticut, National Association,
acting not in its individual capacity but solely as pass through trustee (the
"TRUSTEE") under the amended and restated Pass Through Trust Agreement to be
dated as of November 16, 2000 (the "BASIC AGREEMENT"), as supplemented for each
class of pass through certificates (the "PASS THROUGH CERTIFICATES") to be
purchased hereunder (each, a "CLASS") by a Trust Supplement (each, a "TRUST
SUPPLEMENT"), in each case between the Company and the Trustee (for each Class,
the Basic Agreement, as supplemented by the related Trust Supplement, being
referred to herein individually as a "DESIGNATED AGREEMENT"), issue and sell to
the Underwriters named in Schedule I hereto its 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.
Each Class of Pass Through Certificates will represent interests in a
separate trust (each, a "PASS THROUGH 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
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connection with the financing of 44 Aircraft. The Equipment Notes will be issued
under 44 separate Indenture and Security Agreements between State Street Bank
and Trust Company of Connecticut, National Association ("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. Westdeutsche Landesbank Girozentrale (the
"LIQUIDITY PROVIDER") will enter into a separate revolving credit agreement with
respect to each Pass Through 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 Pass Through Certificates. The
Liquidity Provider and the holders of the Offered 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 Pass Through 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 Goldman, Sachs & Co. ("GOLDMAN SACHS") and Morgan Stanley
& Co. Incorporated ("MORGAN STANLEY").
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 and the
Indentures.
The Company has prepared and filed on Form S-3 with the Securities and
Exchange Commission (the "COMMISSION") three shelf registration statements (File
No. 33-50175, File No. 333-58647 and File No. 333-30974) (the "FIRST
REGISTRATION STATEMENT," the "SECOND REGISTRATION STATEMENT" and the "THIRD
REGISTRATION STATEMENT," respectively, the First, Second and Third Registration
Statements collectively, as amended at the date hereof, including the exhibits
thereto and the documents incorporated by reference therein, the "REGISTRATION
Statements") 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 Statements have 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 February 23, 2000 included in the Third
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
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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 any 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 Statements have been declared
effective by the Commission. On the original effective date of each
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 each
Registration Statement, each 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 Statements 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 Statements 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,
or to statements or omissions in that part of the Registration
Statements which constitutes the Statement of Eligibility under the
Trust Indenture Act (Form T-1) of the Trustee.
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(c) The consolidated financial statements incorporated by
reference in the Prospectus 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 Statements
present fairly the information required to be stated therein.
(d) The documents incorporated by reference in the
Prospectus, 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 Third 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 Third 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,
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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 Offered 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 Offered
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 Georgia, 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 Second Registration
Statement has been duly qualified under the Trust Indenture Act. The
Offered Certificates, the Equipment Notes, and the Operative Documents
will conform in all material respects to the descriptions thereof in
the Prospectus.
(j) Arthur Andersen LLP, who reported on the annual
consolidated financial statements of the Company incorporated by
reference in the Registration Statements and the Prospectus, 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
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provided in this Agreement, the Offered 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 Third 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 Third 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 an authorized capital stock as set
forth in the Third 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 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.
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.
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(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 November 16,
2000, 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 Morgan
Stanley & Co. Incorporated 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 Morgan Stanley & Co.
Incorporated at the Closing Time for the accounts of the Underwriters the sum of
$9,750,000. 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
Third 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 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
any 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 any 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 any Registration
Statement or the institution or threatening of any proceeding for that purpose,
and (v) the
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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 any 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
Statements as originally filed and of all amendments thereto, whether
filed before or after such Registration Statements 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
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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 any 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;
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(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 Third 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 Statements have
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 any of the Registration Statements has been issued
and no proceedings for that purpose have been
instituted or threatened;
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(vii) The Registration Statements, 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 Statements 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 Offered 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;
<PAGE> 13
12
(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
Offered 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
Offered 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
Statements 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
Statements or the Prospectus which are not described
as required, nor any contracts or documents of a
character required to be described in the
Registration Statements or the Prospectus, or to be
filed as exhibits to the Registration Statements,
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
<PAGE> 14
13
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
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 Statements 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 Third 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 Offered 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
<PAGE> 15
14
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
Offered Certificates are entitled to the benefits of
the related Designated Agreements;
(ii) The statements in the Third
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 Pass Through 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 Pass
Through 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 Pass Through
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 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 Offered 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
<PAGE> 16
15
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-1 and
Exhibit B-2 hereto.
(5) An opinion, dated the Closing Time, from
Shearman & Sterling, counsel for the Underwriters, to the
effect that the opinions delivered pursuant to
<PAGE> 17
16
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 Statements, 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 Third Registration Statement and the
Prospectus.
(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)(5) 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.
<PAGE> 18
17
(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 A3, 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; the representations and warranties of
the Pass Through Trustee, the Subordination Agent and the Loan Trustee
contained in each of the Participation Agreements 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
and Loan Trustees, 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
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, the Registration Statements and any amendments
thereof or supplements thereto, (ii) expenses relating to the preparation,
printing
<PAGE> 19
18
and distribution of any agreement among Underwriters, this Agreement, the
Offered 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 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 Securities 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 Statements 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 Statements 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,
<PAGE> 20
19
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 Statements, 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 Third 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
<PAGE> 21
20
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)
<PAGE> 22
21
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 Statements and Prospectus, or in any other
documents or arrangements, and the Company agrees to prepare promptly any
amendments to the Registration Statements 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
<PAGE> 23
22
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 Goldman Sachs for all out-of-pocket expenses
approved in writing by Goldman Sachs, 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 Goldman Sachs or Morgan Stanley
on behalf of you as the representatives. It is understood and agreed that
Goldman Sachs and Morgan Stanley 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 Goldman Sachs and Morgan Stanley.
<PAGE> 24
23
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
Goldman Sachs & Co., 85 Broad Street, New York New York 10004, Attention:
Registration Department, facsimile number (212) 902 3000 and in care of Morgan
Stanley & Co. Incorporated, 1585 Broadway, New York, New York 10036, Attention:
Equipment Finance Group, facsimile number (212) 761 0786; 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 Third 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.
<PAGE> 25
If the foregoing is in accordance with your understanding,
please sign and return one to each of Goldman, Sachs & Co. and Morgan Stanley
and Co. Incorporated, 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: Joan Repetti
Title: Director - Corporate Finance
Accepted as of the date hereof:
Goldman, Sachs & Co.
By:
---------------------------------
(Goldman, Sachs & Co.)
Morgan Stanley & Co. Incorporated
By:
---------------------------------
Name: Patrick Kufer
Title: Vice President
<PAGE> 26
SCHEDULE A
TO
UNDERWRITING
AGREEMENT
<TABLE>
<CAPTION>
Class of Aggregate Final Expected
Pass Through Principal Regular Distribution
Certificates Amount Interest Rate Date
------------------ ----------------- ------------------ -----------------------
<S> <C> <C> <C>
2000-1, Class A-1 $341,094,000 7.379% May 18, 2010
2000-1 Class A-2 $738,136,000 7.570% November 18, 2010
2000-1, Class B $182,497,000 7.920% November 18, 2010
2000-1, Class C $238,273,000 7.779% November 18, 2005
</TABLE>
<PAGE> 27
SCHEDULE I
TO
UNDERWRITING
AGREEMENT
<TABLE>
<CAPTION>
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
-------------- -------------- -------------- --------------
<S> <C> <C> <C> <C>
Goldman, Sachs & Co. .................. $ 34,111,000 $ 73,816,000 $ 18,253,000 $ 23,829,000
Morgan Stanley & Co. Incorporated ..... $ 34,111,000 $ 73,816,000 $ 18,252,000 $ 23,828,000
Chase Securities Inc. ................. $ 34,109,000 $ 73,813,000 $ 18,249,000 $ 23,827,000
Salomon Smith Barney Inc. ............. $ 34,109,000 $ 73,813,000 $ 18,249,000 $ 23,827,000
Banc of America Securities LLC ........ $ 34,109,000 $ 73,813,000 $ 18,249,000 $ 23,827,000
Credit Lyonnais Securities (USA) Inc. . $ 34,109,000 $ 73,813,000 $ 18,249,000 $ 23,827,000
Tokyo-Mitsubishi International plc .... $ 34,109,000 $ 73,813,000 $ 18,249,000 $ 23,827,000
The Williams Capital Group, L.P. ...... $ 34,109,000 $ 73,813,000 $ 18,249,000 $ 23,827,000
BNY Capital Markets, Inc. ............. $ 34,109,000 $ 73,813,000 $ 18,249,000 $ 23,827,000
Guzman & Company ...................... $ 34,109,000 $ 73,813,000 $ 18,249,000 $ 23,827,000
Total ................................. $341,094,000 $738,136,000 $182,497,000 $238,273,000
</TABLE>
<PAGE> 28
EXHIBIT A
TO
UNDERWRITING
AGREEMENT
Opinion of Bingham Dana LLP
[*], 2000
TO THE PARTIES SET FORTH
IN SCHEDULE A HERETO
RE: Delta Air Lines, Inc. 2000-1 Pass Through Trusts
Pass Through Trust Certificates, Series 2000-1
(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 [*], 2000, between Delta Air
Lines, Inc. ("Delta") and State Street (the "Basic Agreement"). as supplemented
by Trust Supplement No. 2000-lA-1, Trust Supplement No. 2000-1A-2, Trust
Supplement No. 2000-1B and Trust Supplement No. 2000-1C, each dated as of
[*], 2000 and each between Delta and State Street (collectively, the "Trust
Supplements" and the Basic Agreement, as supplemented by a Trust Supplement, a
"Designated Agreement") in connection with the transactions contemplated by the
Underwriting Agreement dated [*], 2000 (the "Underwriting Agreement") by
and among Delta, Goldman, Sachs & Co., and Morgan Stanley & Co. Incorporated,
(the "Underwriters"); (ii) Loan Trustee under the Indentures and Participation
Agreements and (iii) 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
<PAGE> 29
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 and the Indentures,
each of which (other than the Basic Agreement) is dated the date hereof (all
such agreements, collectively, the "Operative Documents"), the Offered
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
<PAGE> 30
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.
<PAGE> 31
(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,
<PAGE> 32
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 Offered 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 Offered 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
Offered 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
<PAGE> 33
Offered 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 Offered 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 an Offered 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,
<PAGE> 34
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 Offered 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
<PAGE> 35
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.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
Cadwalader, Wickersham & Taft
<PAGE> 36
EXHIBIT B-1
TO
UNDERWRITING
AGREEMENT
Form of in-house German Law Opinion
of Westdeutsche Landesbank Girozentrale
November 16, 2000
To the Addressees on Schedule I hereto
Re: Delta Air Lines 2000-1 Pass Through Trusts
Ladies and Gentlemen:
We, the undersigned, are members of the Central Legal Department of
Westdeutsche Landesbank Girozentrale ("WestLB") and have advised WestLB and its
New York Branch (the "Branch") in connection with (i) the Intercreditor
Agreement dated as of November 16, 2000 between State Street Bank and Trust
Company of Connecticut, National Association ("State Street"), as Trustee of the
Delta Air Lines Pass Through Trusts (2000-1A-1, 2000-1A-2, 2000-1B and 2000-1C;
collectively referred to as the "Pass Through Trusts") and as Subordination
Agent, and the Branch as Liquidity Provider (the "Liquidity Provider") and (ii)
the four Revolving Credit Agreements (2000-1A-1, 2000-1A-2, 2000-1B and 2000-1C)
dated as of November 16, 2000 between State Street as Subordination Agent and as
agent and trustee for the Pass Through Trusts, as Borrowers and the Liquidity
Provider (the "Revolving Credit Agreements"; the Revolving Credit Agreements and
the Intercreditor Agreement being collectively referred to herein as the
"Agreements"). Capitalized terms herein which are undefined have the meanings
assigned to them in the Agreements.
In connection with the opinions hereinafter given, we have examined a
copy of the Agreements and such other certificates, documents, agreements and
instruments as we have deemed necessary as a basis for the opinions expressed
below.
In such examination, we have assumed the genuineness of all signatures,
the authenticity of all agreements, certificates, instruments and documents
submitted to us as originals, and the conformity to the originals of all
agreements, certificates, instruments and documents submitted to us as copies.
As to questions of fact material to the opinions expressed below, we have, when
relevant facts were not independently established by us, examined and relied
upon representations of officers of WestLB.
Based upon the foregoing examination and assumptions, and subject to
the qualifications set forth below, we are of the opinion that:
<PAGE> 37
1) WestLB is duly organized and validly existing as a German
banking institution under the law of the State of North
Rhine-Westphalia and has full power and authority (corporate
and otherwise) to execute, deliver and perform its obligations
under the Agreements.
2) Any two of Brigitte Thieme, Alfred Heynen and Sharon Maharg,
if acting jointly for and on behalf of the Branch, are duly
authorized by WestLB to execute and deliver the Agreements for
and on behalf of the Branch. Assuming each of the Agreements
has been duly executed and delivered for and on behalf of the
Branch by such persons acting jointly, no further
authorization by or any corporate action of WestLB is required
in connection with the execution, delivery and performance of
the Agreements.
3) (i) The governing-law clause in each of the Agreements,
subjecting the Agreements to New York law, is valid under
German law.
(ii) Under German law, New York law will be applied to an
agreement, such as the Agreements, which under German law has
been validly subjected to New York law, except to the extent
that (a) any of the terms of such agreement or any of the
provisions of New York law applicable to such agreement are
obviously irreconcilable with important principles of German
law, (b) there are mandatory provisions of German law which
must be applied to the transaction covered by such agreement
irrespective of the law which governs such agreement or (c)
all elements of the transaction covered by such agreement,
other than the choice of law, are connected with only one
country other than the country the law of which was chosen at
the time of the choice of law and there are mandatory
provisions of the law of such country applicable to such
transaction.
(iii) (a) None of the terms of the Agreements are
irreconcilable with important principles of German law, (b)
there are no mandatory provisions of German law which must be
applied to the transaction covered by the Agreements
irrespective of the law which governs the Agreements and (c)
the transaction covered by the Agreements was not connected
with only one country other than the country the law of which
was chosen at the time the choice of law was made.
(iv) Each of the Agreements constitutes the legal, valid and
binding obligation of WestLB, enforceable against WestLB in
accordance with its terms, the rules of civil procedure of
Germany and, subject to the opinion contained in paragraph
(3)(i) through (iii), the applicable provisions of the chosen
law of New York.
4) No authorization, consent, approval or other action by, and no
notice to or filing with, any governmental, administrative or
other authority or court of Germany or of the State of North
Rhine-Westphalia is required for the execution or delivery of
the Agreements by WestLB through the Branch or for the
performance by WestLB or by the Branch of the Agreements.
<PAGE> 38
5) The execution, delivery and performance of the Agreements by
WestLB or the Branch will not result in any violation by
WestLB or by the Branch of any law of Germany or the State of
North Rhine-Westphalia.
6) The contractual obligations incurred by virtue of the
execution and delivery of the Agreements for and on behalf of
the Branch are the obligations of WestLB, and WestLB has no
defenses against the performance of such obligations which are
based on the fact that WestLB had acted through the Branch in
executing and delivering the Agreements.
7) Any final and conclusive judgment of the Supreme Court of the
State of New York, New York County, or of the United States
District Court for the Southern District of New York for a
definite sum for the recovery of amounts due and unpaid under
the Agreements will be held enforceable against WestLB in the
appropriate courts of Germany without re-examination or
re-litigation of the matters adjudicated, except that such
judgment is not so enforceable if any of the reasons for
excluding enforceability set forth in Section 328 (1) of the
German Code of Civil Procedure is present, in particular (i)
under the law of Germany said New York or federal court does
not have jurisdiction, (ii) WestLB has not been served with
process in a proper and timely fashion and therefore WestLB
has not been able to defend itself against the claim in the
court, (iii) the judgment conflicts with a prior judgment of a
court of Germany or a prior judgment of a foreign court that
is to be recognized in Germany, or the litigation resulting in
the judgment to be enforced conflicts with litigation
previously commenced in Germany, (iv) recognition of the
judgment would be contrary to basic principles of the law of
Germany, in particular but not limited to the constitutional
human rights, or (v) reciprocity is not insured.
8) The obligations of WestLB under the Agreements rank at least
equal in priority of payment and in all other respects with
its obligations to pay any other unsecured and unsubordinated
obligations of WestLB for borrowed money, including deposit
liabilities, that are not expressly preferred by law or in
proceedings under the German Insolvency Code
(Insolvenzordnung) or by similar laws affecting creditors'
rights generally.
The foregoing opinions are subject to the following
qualifications:
(i) The opinion in paragraph (3) with respect to
enforceability is subject to the effect of any bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar
laws affecting creditors' rights generally, applicable to
WestLB.
(ii) In giving the opinions in paragraphs (3)(iv), (6) and
(8), we have assumed, with your consent, that each of the
Agreements is legal, valid and binding under New York law, all
as set forth more fully in the opinion dated of even date
<PAGE> 39
herewith of the Branch's in-house legal department issued in
connection with the Agreements.
(iii) No opinion is expressed with respect to the law of
any jurisdiction other than the law of Germany and the State
of North Rhine-Westphalia.
<PAGE> 40
This opinion is being furnished to you solely for your benefit in connection
with the transactions described above and may not be used, circulated, quoted or
otherwise referred to for any other purpose without our express written consent.
This opinion is governed by German law; exclusive place of jurisdiction is
Dusseldorf, Germany.
Very truly yours,
WESTDEUTSCHE LANDESBANK GIROZENTRALE
CENTRAL LEGAL DEPARTMENT
------------------------------- -------------------------------
ppa. Peter Foller ppa. Klaus Neuper
Legal Counsel Legal Counsel
<PAGE> 41
SCHEDULE I
Delta Air Lines, Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
Chase Securities Inc.
Salomon Smith Barney Inc.
Banc of America Securities LLC
Credit Lyonnais Securities (USA) Inc.
Tokyo-Mitsubishi International plc
The Williams Capital Group, L.P.
BNY Capital Markets, Inc.
Guzman & Company
State Street Bank and Trust Company of Connecticut, National Association
Standard & Poor's Ratings Group, a division of McGraw-Hill Inc.
Moody's Investors Service, Inc.
<PAGE> 42
EXHIBIT B-2
TO
UNDERWRITING
AGREEMENT
Form of in-house New York Law Opinion
of Westdeutsche Landesbank Girozentrale
November 16, 2000
To the Addressees on Schedule I hereto
Re: Delta Air Lines 2000-1 Pass Through Trusts
Ladies and Gentlemen:
We, the undersigned, are members of the Legal Department of the New York Branch
(the "Branch") of Westdeutsche Landesbank Girozentrale ("WestLB"), and have
acted as its counsel in connection with the (i) the Intercreditor Agreement
dated as of November 16, 2000 between State Street Bank and Trust Company of
Connecticut, National Association ("State Street"), as Trustee of the Delta Air
Lines Pass Through Trusts (2000-1A-1, 2000-1A-2, 2000-1B and 2000-1C;
collectively referred to as the "Pass Through Trusts") and as Subordination
Agent, and the Branch as Liquidity Provider (the "Liquidity Provider") and (ii)
the four Revolving Credit Agreements (2000-1A-1, 2000-1A-2, 2000-1B and 2000-1C)
dated as of November 16, 2000 between State Street as Subordination Agent and as
agent and trustee for the Pass Through Trusts, as Borrowers and the Liquidity
Provider (the "Revolving Credit Agreements"; the Revolving Credit Agreements and
the Intercreditor Agreement being collectively referred to herein as the
"Agreements"). Capitalized terms used but not defined herein have the meanings
assigned to them in the Agreements.
In rendering this opinion we have examined executed originals, or photocopies of
executed originals, of the Agreements and such business records of WestLB and
such other certificates, documents, agreements and instruments as we have deemed
necessary as a basis for the opinion hereinafter expressed.
This opinion is subject to the following qualifications: First, we are attorneys
admitted to practice in the State of New York, and we express no opinion as to
any laws other than the federal laws of the United States of America and the
laws of the State of New York. Second, we have assumed the authenticity of all
documents submitted to us as originals, the conformity with originals of all
documents submitted to us as copies and the genuineness of all signatures of the
respective parties to such documents other than WestLB. Third, we have assumed
that each of the Agreements has been duly authorized, executed and delivered by
all the parties thereto other than the Branch. Fourth, with respect to certain
matters of fact, we have relied upon the truth and accuracy of representations
and certificates of the officers of the Branch and upon certificates and
statements of public officials. Fifth, the enforceability of the obligations of
the Branch under the Agreements is subject to (a) the effect of liquidation,
bankruptcy, insolvency,
<PAGE> 43
reorganization, moratorium or similar laws affecting creditors' rights generally
applicable to WestLB and the Branch, and (b) general principles of equity
(regardless of whether considered in proceedings in equity or at law), as well
as concepts of reasonableness, good faith and fair dealing.
Our opinions set forth in paragraph 3 below are based upon our consideration of
only those statutes and regulations which, in our experience, are normally
applicable to lenders in lending transactions.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Superintendent of Banks of the State of New York (the
"Superintendent") has authorized WestLB through the issuance of a license to
maintain a branch in the State of New York for conducting the business of
banking in the State of New York in accordance with the provisions of Article V
of the New York State Banking Law; the New York State Banking Law permits
branches to exercise the power to execute, deliver and perform agreements such
as the Agreements; and the Branch has the authority to execute, deliver and
perform the Agreements.
2. Neither the execution and delivery by the Branch of the
Agreements nor the consummation by the Branch of any of the transactions
contemplated thereby requires the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action with respect to,
any federal or New York governmental authority, agency or official governing the
banking powers of the Branch.
3. The execution and delivery of the Agreements and the
consummation of the transactions contemplated thereby will not result in any
violation by WestLB or the Branch of any federal United States or New York law,
administrative regulation (including regulations governing the hypothecation of
the Branch's securities in favour of affiliated entities) or administrative or
judicial order or decree.
4. Each of the Agreements has been duly executed and delivered by
Brigitte Thieme and Alfred Heynen, acting jointly for and on behalf of the
Branch. Assuming that under the law of the Federal Republic of Germany or of the
State of North Rhine-Westphalia the contractual obligations incurred by virtue
of such execution and delivery for and on behalf of the Branch are the
obligations of WestLB, and that WestLB has no defenses against the performance
of such obligations which are based on the fact that WestLB has acted through
the Branch in executing and delivering the Agreements, or otherwise, then under
New York law the Agreements constitute the legal, valid and binding obligations
of WestLB enforceable in accordance with their respective terms. To the extent
that the power and authority of the Branch is dependent on the power and
authority of WestLB under the law of the Federal Republic of Germany or of the
state of North Rhine-Westphalia, and with respect to (i) WestLB's defenses, (ii)
the due authorization by WestLB of Brigitte Thieme and Alfred Heynen, acting
jointly, to execute and deliver the Agreements for and on behalf of the Branch
and (iii) the other opinions contained therein, we have, with your approval,
relied without independent investigation as to all matters governed by or
involving conclusions under the law of the Federal Republic of Germany or of the
State of North Rhine-Westphalia upon the opinion (including the qualifications,
assumptions
<PAGE> 44
and limitations expressed therein) of the Central Legal Department of WestLB,
dated November 16, 2000 addressed to you.
This opinion is being furnished to you solely for your benefit in connection
with the transactions described above and may not be used, circulated, quoted or
otherwise referred to for any other purpose without our express written consent.
Very truly yours,
---------------------------------- ----------------------------------
Frederic M. Mauhs Ivor Wolk
Managing Director/General Counsel Associate Director
<PAGE> 45
SCHEDULE I
Delta Air Lines, Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
Chase Securities Inc.
Salomon Smith Barney Inc.
Banc of America Securities LLC
Credit Lyonnais Securities (USA) Inc.
Tokyo-Mitsubishi International plc
The Williams Capital Group, L.P.
BNY Capital Markets, Inc.
Guzman & Company
State Street Bank and Trust Company of Connecticut, National Association
Standard & Poor's Ratings Group, a division of McGraw-Hill Inc.
Moody's Investors Service, Inc.
