Attached files
file | filename |
---|---|
8-K - FORM 8-K - DELTA AIR LINES, INC. | g27929e8vk.htm |
EX-5.1 - EX-5.1 - DELTA AIR LINES, INC. | g27929exv5w1.htm |
EX-4.6 - EX-4.6 - DELTA AIR LINES, INC. | g27929exv4w6.htm |
EX-4.5 - EX-4.5 - DELTA AIR LINES, INC. | g27929exv4w5.htm |
EX-4.7 - EX-4.7 - DELTA AIR LINES, INC. | g27929exv4w7.htm |
EX-5.3 - EX-5.3 - DELTA AIR LINES, INC. | g27929exv5w3.htm |
EX-4.2 - EX-4.2 - DELTA AIR LINES, INC. | g27929exv4w2.htm |
EX-8.1 - EX-8.1 - DELTA AIR LINES, INC. | g27929exv8w1.htm |
EX-4.9 - EX-4.9 - DELTA AIR LINES, INC. | g27929exv4w9.htm |
EX-4.8 - EX-4.8 - DELTA AIR LINES, INC. | g27929exv4w8.htm |
EX-1.1 - EX-1.1 - DELTA AIR LINES, INC. | g27929exv1w1.htm |
EX-23.3 - EX-23.3 - DELTA AIR LINES, INC. | g27929exv23w3.htm |
EX-4.10 - EX-4.10 - DELTA AIR LINES, INC. | g27929exv4w10.htm |
EX-23.2 - EX-23.2 - DELTA AIR LINES, INC. | g27929exv23w2.htm |
EX-23.1 - EX-23.1 - DELTA AIR LINES, INC. | g27929exv23w1.htm |
EX-5.2 - EX-5.2 - DELTA AIR LINES, INC. | g27929exv5w2.htm |
Exhibit 4.4
Execution Version
Amendment No. 1 to
INTERCREDITOR AGREEMENT
(2011-1)
Dated as of August 17, 2011
among
DELTA AIR LINES, INC.,
U.S. BANK TRUST NATIONAL ASSOCIATION
as Trustee of
the Delta Air Lines Pass Through Trust 2011-1A and
the Delta Air Lines Pass Through Trust 2011-1B,
and to the extent expressly set forth herein, in its individual capacity
as Trustee of
the Delta Air Lines Pass Through Trust 2011-1A and
the Delta Air Lines Pass Through Trust 2011-1B,
and to the extent expressly set forth herein, in its individual capacity
NATIXIS S.A., ACTING VIA ITS NEW YORK BRANCH
as Class A Liquidity Provider and
Class B Liquidity Provider,
as Class A Liquidity Provider and
Class B Liquidity Provider,
and
U.S. BANK TRUST NATIONAL ASSOCIATION
as Subordination Agent
as Subordination Agent
Amendment No. 1 to Intercreditor Agreement (2011-1)
(2011-1B EETC)
(2011-1B EETC)
AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT
This AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (this Amendment), dated as of August 17,
2011, is made by and among DELTA AIR LINES, INC., a Delaware corporation (together with its
successors and permitted assigns, Delta), U.S. BANK TRUST NATIONAL ASSOCIATION, a national
banking association (in its individual capacity, together with its successors and permitted
assigns, U.S. Bank), not in its individual capacity, except as expressly set forth herein, but
solely as Class A Trustee and Class B Trustee (such term and other capitalized terms used herein
without definition being defined as provided in Article I of the Intercreditor Agreement, as
amended by Section 1.01 hereof); NATIXIS S.A., a société anonyme organized under the laws of
France, acting via its New York Branch (Natixis), as Class A Liquidity Provider and Class B
Liquidity Provider; and U.S. BANK TRUST NATIONAL ASSOCIATION, not in its individual capacity except
as expressly set forth herein, but solely as Subordination Agent and trustee hereunder (in such
capacity, together with any successor appointed pursuant to Article VII of the Intercreditor
Agreement, the Subordination Agent).
WHEREAS, the Class A Trustee, the Class A Liquidity Provider and the Subordination Agent
entered into that certain Intercreditor Agreement, dated as of April 5, 2011, (the Intercreditor
Agreement);
WHEREAS, Delta had a right to issue Series B Equipment Notes pursuant to the terms of Section
4(a)(v) of the Note Purchase Agreement (as in effect immediately prior to the date hereof) and,
pursuant to Section 8.01(d) of the Intercreditor Agreement (as in effect immediately prior to the
date hereof), the Intercreditor Agreement shall be amended by written agreement of Delta and the
Subordination Agent to give effect to the issuance of any Class B Certificates, and the Class B
Trustee and the Class B Liquidity Provider shall be added as parties to the Intercreditor
Agreement;
WHEREAS, Delta has entered into a Trust Supplement with respect to the Class B Trust in
connection with the issuance of the Class B Certificates to provide financing for the purchase by
the Class B Trustee of the Series B Equipment Notes, in respect of, and secured by a security
interest in, the Aircraft;
WHEREAS, the Trust created by the Class B Trust Agreement proposes to issue the Class B
Certificates bearing the interest rate and having the final distribution date described in the
Class B Trust Agreement on the terms and subject to the conditions set forth therein;
WHEREAS, pursuant to the Class B Underwriting Agreement, the Class B Underwriter proposes to
purchase the Class B Certificates; and
WHEREAS, it is a condition precedent to the obligations of the Class B Underwriter under the
Class B Underwriting Agreement that this Amendment be executed and delivered by each party hereto;
NOW, THEREFORE, in consideration of the mutual agreements herein contained, and of other good
and valuable consideration the receipt and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I AMENDMENTS TO THE INTERCREDITOR AGREEMENT
Section 1.01. (a) Section 1.01(f) of the Intercreditor Agreement is amended as
follows:
(i) The definition of Certificate is amended by deleting the phrase , if issued,.
(ii) The definition of Class B Adjusted Interest is amended by replacing each
instance of the phrase (or, if the Current Distribution Date is the first Distribution
Date, the Closing Date) with (or, if the Current Distribution Date is the first
Distribution Date, the Class B Issuance Date).
(iii) The definition of Class B Cash Collateral Account is amended by deleting the
phrase , if and when such account is created.
(iv) The definition of Class B Certificates is deleted in its entirety and replaced
by the following:
Class B Certificates means the certificates issued by the Class B Trust,
substantially in the form of Exhibit A to the Class B Trust Agreement, and
authenticated by the Class B Trustee, representing Fractional Undivided Interests in
the Class B Trust, and any certificates issued in exchange therefor or replacement
thereof pursuant to the terms of the Class B Trust Agreement.
(v) The definition of Class B Liquidity Facility is deleted in its entirety and
replaced by the following:
Class B Liquidity Facility means, initially, the Revolving Credit Agreement
(2011-1B), dated as of the Class B Issuance Date, between the Subordination Agent,
as agent and trustee for the Class B Trustee, and Natixis and, from and after the
replacement of such agreement pursuant hereto, the Replacement Liquidity Facility
therefor, if any, in each case as amended, supplemented or otherwise modified from
time to time in accordance with its terms; provided that, for purposes of
any obligation of Delta, no amendment, modification or supplement to, or
substitution or replacement of, any Class B Liquidity Facility shall be effective
unless consented to by Delta.
(vi) The definition of Class B Liquidity Provider is amended by replacing the
initial provider of any Class B Liquidity Facility, if any with Natixis.
(vii) The definition of Class B Trust is amended by replacing the phrase , if and
when created, with created and.
Intercreditor Agreement (2011-1)
(2011-1B EETC)
(2011-1B EETC)
2
(viii) The definition of Class B Trust Agreement is deleted in its entirety and
replaced by the following:
Class B Trust Agreement means the Basic Agreement, as supplemented by Trust
Supplement No. 2011-1B thereto, dated as of the Class B Issuance Date, governing the
creation and administration of the Delta Air Lines Pass Through Trust 2011-1B and
the issuance of the Class B Certificates, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms.
(ix) The definition of Class B Trustee is amended by deleting the phrase if any,.
(x) The definition of Deposit Agreement is deleted in its entirety and replaced by
the following:
Deposit Agreement means, subject to Section 5 of the Note Purchase Agreement,
with respect to any Class of Certificates, the Deposit Agreement pertaining to such
Class, (i) in the case of the Class A Certificates, dated as of April 5, 2011 and
(ii) in the case of the Class B Certificates, dated as of the Class B Issuance Date,
in each case between the Escrow Agent and the Depositary, in each case as the same
may be amended, modified or supplemented from time to time in accordance with the
terms thereof.
(xi) The definition of Depositary is amended by replacing the word the before
Deposit Agreement with each.
(xii) The definition of Deposits is deleted in its entirety and replaced by the
following:
Deposits with respect to any Class of Certificates has the meaning set forth
in the Deposit Agreement pertaining to such Class.
(xiii) The definition of Eligible B Pool Balance is amended by replacing the phrase
after the date of issuance of the Class B Certificates with after the Class B Issuance
Date.
(xiv) The definition of Equipment Notes is amended by deleting the phrase , if
issued,.
(xv) The definition of Escrow Agent is amended by replacing the word the with
each.
(xvi) The definition of Escrow and Paying Agent Agreement is deleted in its entirety
and replaced by the following:
Intercreditor Agreement (2011-1)
(2011-1B EETC)
(2011-1B EETC)
3
Escrow and Paying Agent Agreement means, with respect to any Class of
Certificates, the Escrow and Paying Agent Agreement pertaining to such Class, (i) in
the case of the Class A Certificates, dated as of April 5, 2011 among the Escrow
Agent, the Underwriters, the Class A Trustee and the Paying Agent, and (ii) in the
case of the Class B Certificates, dated as of the Class B Issuance Date among the
Escrow Agent, the Class B Underwriter, the Class B Trustee and the Paying Agent, in
each case as the same may be amended, modified or supplemented from time to time in
accordance with the terms thereof.
(xvii) The definition of Escrow Receipts is deleted in its entirety and replaced by
the following:
Escrow Receipts has the meaning assigned to such term in the Escrow and
Paying Agent Agreement for the Class A Trust or the Class B Trust, as applicable.
(xviii) The definition of Expected Distributions is amended by (A) deleting the
phrase in the case of the Class A Certificates in the first sentence thereof and (B)
replacing the phrase the Class A Certificates) at the end of the first sentence thereof
with the Certificates of such Trust).
(xix) The definition of Final Distributions is amended by (A) deleting the phrase ,
in the case of the Class A Certificates, in each of clause (x) and clause (y) thereof, (B)
adding the phrase relating to such Trust after Deposits in clause (x) thereof and (C)
adding the phrase for such Class of Certificates after the amount of Deposits in clause
(y) thereof.
(xx) The definition of Final Legal Distribution Date is amended by replacing the
phrase a date to be determined as such for the Class B Certificates with April 15,
2016.
(xxi) The definition of Liquidity Provider is amended by deleting the phrase , if
the Class B Liquidity Facility shall have been provided,.
(xxii) The definition of Pool Balance is amended by (A) deleting the phrase (in the
case of the Class A Certificates) in each of the two sentences thereof and (B) adding the
phrase relating to such Class after Deposits in the first sentence thereof.
(xxiii) The definition of Rating Agencies is amended by deleting the phrase Class A
in the second sentence thereof.
(xxiv) The definition of Stated Interest Rate is amended by replacing the phrase the
rate per annum determined as such for the Class B Certificates with 7.125% per
annum.
(xxv) The definition of Trust is amended by deleting the phrase , if created,.
Intercreditor Agreement (2011-1)
(2011-1B EETC)
(2011-1B EETC)
4
(xxvi) The definition of Trustee is amended by deleting the phrase , if the Class B
Trust shall have been created,.
(b) For purposes of the Intercreditor Agreement, unless the context otherwise requires, the
following capitalized terms shall have the following meanings:
Class B Issuance Date means August 17, 2011.
Class B Underwriter means Citigroup Global Markets Inc.
Class B Underwriting Agreement means the Underwriting Agreement, dated August 12, 2011
between the Class B Underwriter and Delta, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
Section 1.02. Section 2.01(a) of the Intercreditor Agreement is amended by deleting
the phrase , upon accession hereto, in each of the two sentences thereof.
Section 1.03. The second sentence of Section 2.01(b) of the Intercreditor Agreement is
amended by (A) deleting the phrase , upon accession hereto, and (B) replacing the phrase (in the
case of the Class A Certificateholders only) the Deposits with the relevant Deposits.
Section 1.04. Section 2.04(a) of the Intercreditor Agreement is amended by (A) adding
the phrase (excluding interest, if any, payable with respect to the Deposits relating to the Class
B Trust) after the Class B Certificates in sub-paragraph (iv) thereof and (B) adding the phrase
in each case excluding interest, if any, payable with respect to Deposits relating to the Class B
Trust, after prepaid, in sub-paragraph (v) thereof.
Section 1.05. Section 2.04(c) of the Intercreditor Agreement is amended by replacing
the word the before each of Paying Agent, Depositary and Escrow Agent with any.
Section 1.06. Section 2.05(a) of the Intercreditor Agreement is amended by replacing
the phrase the Class A Trustee with each Trustee.
Section 1.07. Section 2.05(b) of the Intercreditor Agreement is amended by deleting
the phrase (or in the case of the Class B Trustee, upon the accession hereto).
Section 1.08. Section 2.05(c) of the Intercreditor Agreement is amended by deleting
the phrase (or in the case of the Class B Liquidity Provider, upon the accession hereto).
Section 1.09. Section 3.01(a)(ii) of the Intercreditor Agreement is amended by
deleting the phrase if issued,.
Section 1.10. Section 3.02 of the Intercreditor Agreement is amended by (A) adding the
phrase relating to the Class A Trust after Deposits in clause seventh thereof, (B)
adding the phrase (excluding interest, if any, payable with respect to the Deposits relating to
Intercreditor Agreement (2011-1)
(2011-1B EETC)
(2011-1B EETC)
5
the Class B Trust) after the Class B Certificates in clause eighth thereof and
(C) adding the phrase (excluding interest, if any, payable with respect to the Deposits relating
to the Class B Trust) after the second occurrence of the phrase the Class B Certificates in
clause tenth thereof.
Section 1.11. Section 3.04 of the Intercreditor Agreement is amended by deleting the
word of after address and before such Liquidity Provider shall provide.
Section 1.12. Section 3.05(a) of the Intercreditor Agreement is amended by (A) adding
the phrase or the Class B Certificates after accrued interest on the Class A Certificates and
(B) adding the phrase or the Class B Certificates after due and payable in respect of the Class
A Certificates.
Section 1.13. Section 3.05(e)(i) of the Intercreditor Agreement is amended by adding
the phrase (including as a result of a refinancing of the Class B Certificates) after if the
initial Liquidity Provider is replaced.
Section 1.14. Section 3.05(f)(ii) of the Intercreditor Agreement is amended by adding
the phrase (other than any amount of interest which was due and payable on the Class B
Certificates on such Distribution Date but which remains unpaid due to the failure of the
Depositary to pay any amount of accrued interest on Deposits on such Distribution Date) after (at
the Stated Rate for the Class B Certificates).
Section 1.15. Sections 3.05(f)(iii) of the Intercreditor Agreement is amended by
adding the phrase for such Class after the Escrow and Paying Agent Agreement.
Section 1.16. The first sentence of Section 6.01 of the Intercreditor Agreement is
amended by deleting the phrase , upon the accession hereto,.
Section 1.17. Section 8.01(c)(iii) and the last paragraph of Section 8.01(c) of the
Intercreditor Agreement is amended by deleting each of the two phrases , if any from each of such
provisions.
Section 1.18. Section 8.01(e) of the Intercreditor Agreement is deleted in its
entirety and replaced by the following:
(e) The parties hereto agree that upon the issuance and sale of the Class B
Certificates on the Class B Issuance Date, the provisions of Section 8.01(d) shall be of no
effect and shall be disregarded.
Section 1.19. Section 9.11(c) of the Intercreditor Agreement is amended by deleting
the phrase , upon accession hereto,.
ARTICLE II MISCELLANEOUS
Section 2.01. Amendment; Consent.
Intercreditor Agreement (2011-1)
(2011-1B EETC)
(2011-1B EETC)
6
(a) Each party hereto (including U.S. Bank in its individual capacity) agrees that this
Amendment is entered into pursuant to and consistent with Section 8.01 of the Intercreditor
Agreement.
(b) The Class A Liquidity Provider hereby consents to the issuance of the Class B Certificates
in accordance with clause (y) of Section 8.01(d) of the Intercreditor Agreement (in effect
immediately prior to the date hereof).
Section 2.02. Effect on the Intercreditor Agreement. Except as specifically
amended by this Amendment, the Intercreditor Agreement shall remain in full force and effect and
the Intercreditor Agreement, as amended by this Amendment, is hereby ratified and affirmed in all
respects. On and after the date hereof, each reference in the Intercreditor Agreement to this
Agreement, herein, hereunder or words of similar import shall mean and be a reference to the
Intercreditor Agreement as amended by this Amendment.
Section 2.03.Class B Trustee; Class B Liquidity Provider.
(a) Effective as of the date hereof, U.S. Bank, as Class B Trustee, shall be deemed to be a
party to the Intercreditor Agreement, as amended hereby, and shall have all of the rights and
obligations of the Class B Trustee under the Intercreditor Agreement, as amended hereby, and under
the other Operative Agreements.
(b) Effective as of the date hereof, Natixis, as Class B Liquidity Provider, shall be deemed
to be a party to the Intercreditor Agreement, as amended hereby, and shall have all of the rights
and obligations of the Class B Liquidity Provider under the Intercreditor Agreement, as amended
hereby, and under the other Operative Agreements.
Section 2.04.Severability. To the extent permitted by applicable law, any provision of this
Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
Section 2.05.Counterparts. This Amendment may be executed in any number of counterparts (and each
party shall not be required to execute the same counterpart). Each counterpart of this Amendment
including a signature page or pages executed by each of the parties hereto shall be an original
counterpart of this Amendment, but all of such counterparts together constitute one instrument.
Section 2.06.Governing Law. THIS AMENDMENT HAS BEEN DELIVERED IN THE STATE OF NEW YORK AND SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
[Remainder of Page Intentionally Left Blank]
Intercreditor Agreement (2011-1)
(2011-1B EETC)
(2011-1B EETC)
7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective officers thereunto duly authorized, as of the date first above written.
DELTA AIR LINES, INC. |
||||
By: | /s/ Paul A. Jacobson | |||
Name: | Paul A. Jacobson | |||
Title: | Senior Vice President and Treasurer | |||
U.S. BANK TRUST NATIONAL ASSOCIATION, as Class A
Trustee and Class B Trustee and, to the extent
expressly set forth herein, in its individual
capacity |
||||
By: | /s/ Alison D.B. Nadeau | |||
Name: | Alison D.B. Nadeau | |||
Title: | Vice President | |||
NATIXIS S.A., ACTING VIA ITS NEW YORK BRANCH, as
Class A Liquidity Provider and Class B Liquidity
Provider |
||||
By: | /s/ Jerome Le Jamtel | |||
Name: | Jerome Le Jamtel | |||
Title: | Managing Director | |||
By: | /s/ Olivier Delay | |||
Name: | Olivier Delay | |||
Title: | Managing Director | |||
U.S. BANK TRUST NATIONAL ASSOCIATION, as Subordination Agent |
||||
By: | /s/ Alison D.B. Nadeau | |||
Name: | Alison D.B. Nadeau | |||
Title: | Vice President | |||
Amendment No. 1 to Intercreditor Agreement (2011-1)
(2011-1B EETC)
(2011-1B EETC)