Delta Air Lines, Inc 8-K, filed Nov 6, 2026
Delta Air Lines, Inc. (DAL)
About this 8-K
Delta Air Lines, Inc filed this 8-K on November 6, 2026.
Delta Air Lines completed a $500,000,000 public offering of 5.500% Notes due 2029 on November 6, 2026. The notes mature on November 6, 2029, and proceeds will repay debt, with remaining funds used for general corporate purposes. AI summary
Items reported
- Item 1.01: Entered into a material agreement
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 OR 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
(Address of principal executive offices)
Registrant’s telephone number, including area code:
Registrant’s Web site address: www.delta.com
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR 230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR 240.12b-2). Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01 | Entry into a Material Definitive Agreement. |
On November 6, 2026, Delta Air Lines, Inc. (“Delta,” “we,” “us” or “our”) completed a public offering of $500,000,000 in aggregate principal amount of our 5.500% Notes due 2029 (the “Notes”). The Notes were registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to an automatic shelf registration statement on Form S-3 (File No. 333-297387) (the “Registration Statement”), filed with the Securities and Exchange Commission (the “Commission”) on July 10, 2026. The material terms of the Notes are described in the prospectus supplement, dated November 4, 2026, filed with the Commission on November 5, 2026 pursuant to Rule 424(b) under the Securities Act, which relates to the offer and sale of the Notes and supplements the prospectus, dated July 10, 2026, that constitutes a part of the Registration Statement.
The Notes were issued under an indenture, dated as of March 6, 2017 (the “Base Indenture”), as supplemented by that certain Seventh Supplemental Indenture, dated November 6, 2026 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), each between Delta and U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), as trustee. The Base Indenture was incorporated by reference as Exhibit 4.1 to the Registration Statement and is incorporated herein by reference. The Supplemental Indenture is filed herewith as Exhibit 4.1 and incorporated herein by reference.
The Notes are our direct, unsecured and unsubordinated obligations. The Notes rank pari passu, or equal in right of payment, with all of our other unsubordinated indebtedness and senior in right of payment to all of our future subordinated debt. The Notes will mature on November 6, 2029. We will pay interest on the Notes semi-annually in arrears on May 6 and November 6 of each year, beginning on May 6, 2027.
The Indenture contains certain covenants that, among other things, limit our ability to incur liens securing indebtedness for borrowed money or capital leases and engage in mergers and consolidations or transfer all or substantially all of our assets, in each case subject to a number of important exceptions as specified in the Indenture. The indebtedness evidenced by the Notes may be accelerated upon the occurrence of certain events of default under the Indenture, which are customary for securities of this nature and consistent with those in our recent unsecured debt offerings.
We intend to use a portion of the net proceeds from the sale of the Notes to repay the following indebtedness: (1) approximately $391 million in borrowings outstanding under our unsecured Payroll Support Program loan due April 23, 2031, (2) approximately $70 million of equipment notes secured by aircraft due in installments from 2026 to 2033, and (3) together with cash on hand, approximately $39 million of Class B Pass Through Certificates, Series 2020-1 maturing in June 2027. Any remaining net proceeds will be used for general corporate purposes.
We may redeem the Notes at our option at any time prior to October 6, 2029 (one month prior to the maturity date of the Notes), in whole or in part, at the redemption price set forth in the Supplemental Indenture, plus accrued and unpaid interest thereon to the date of redemption. At any time on or after October 6, 2029 (one month prior to the maturity date of the Notes), we may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon to the date of redemption. If we experience a Change of Control (as defined in the Supplemental Indenture) and the rating on the Notes is lowered by two or more of the Ratings Agencies (as defined in the Supplemental Indenture) to a rating below investment grade within a certain period of time following a Change of Control or public notice of the occurrence of a Change of Control, we must offer to repurchase all of the Notes at a price equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest thereon, if any, to, but excluding, the repurchase date.
The form of the Notes issued pursuant to the Indenture is filed herewith as Exhibit 4.2. The foregoing descriptions of the Notes, the Base Indenture and the Supplemental Indenture are summaries only and are qualified in their entirety by reference to the full text of such documents. The Supplemental Indenture and the form of the Notes are also filed with reference to, and are hereby incorporated by reference into, the Registration Statement.
| Item 8.01 | Other Events. |
On November 4, 2026, Delta entered into an underwriting agreement (the “Underwriting Agreement”) with BofA Securities, Inc., Citigroup Global Markets Inc., Deutsche Bank Securities Inc., Goldman Sachs & Co. LLC and Standard Chartered Bank, as the representatives of the several underwriters named therein (the “Underwriters”), in connection with the issuance and sale of the Notes. The Underwriting Agreement includes representations, warranties and covenants, including an agreement to indemnify the Underwriters against certain liabilities. The Underwriting Agreement is filed herewith as Exhibit 1.1 and incorporated herein by reference. The foregoing description of the Underwriting Agreement is a summary only and is qualified in its entirety by reference to the full text of the Underwriting Agreement. The Underwriting Agreement is also filed with reference to, and is hereby incorporated by reference into, the Registration Statement.
In connection with the offering of the Notes, we are filing certain legal opinions relating to the offering as Exhibits 5.1 and 5.2 to this Current Report on Form 8-K, which legal opinions are incorporated by reference into the Registration Statement.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| DELTA AIR LINES, INC. | ||||||
| By: | /s/ Erik S. Snell | |||||
| Erik S. Snell | ||||||
| Date: November 6, 2026 | Executive Vice President & Chief Financial Officer | |||||
Exhibit 1.1
Execution Version
$500,000,000
DELTA AIR LINES, INC.
5.500% Notes due 2029
Underwriting Agreement
November 4, 2026
c/o BofA Securities, Inc.
One Bryant Park
New York, New York 10036
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
c/o Deutsche Bank Securities Inc.
1 Columbus Circle
New York, New York 10019
c/o Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282
c/o Standard Chartered Bank
One Basinghall Avenue
London EC2V 5DD
United Kingdom
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
Ladies and Gentlemen:
Delta Air Lines, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are acting as representatives (the “Representatives”), $500,000,000 principal amount of its 5.500% Notes due 2029 (the “Securities”). The Securities will be issued pursuant to an Indenture dated as of March 6, 2017 (the “Base Indenture”), between the Company and U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), as trustee (the “Trustee”), as amended by a Supplemental Indenture to be dated as of November 6, 2026 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”).
Table of Contents
| Page | ||||||
| 1. |
Registration Statement |
2 | ||||
| 2. |
Purchase and Sale of the Securities |
2 | ||||
| 3. |
Representations and Warranties of the Company |
3 | ||||
| 4. |
Further Agreements of the Company |
12 | ||||
| 5. |
Certain Agreements of the Underwriters |
15 | ||||
| 6. |
Conditions of Underwriters’ Obligations |
15 | ||||
| 7. |
Indemnification and Contribution |
18 | ||||
| 8. |
Effectiveness of Agreement |
21 | ||||
| 9. |
Termination |
21 | ||||
| 10. |
Defaulting Underwriter |
21 | ||||
| 11. |
Payment of Expenses |
22 | ||||
| 12. |
Persons Entitled to Benefit of Agreement |
23 | ||||
| 13. |
Survival |
23 | ||||
| 14. |
Certain Defined Terms |
23 | ||||
| 15. |
Compliance with USA Patriot Act |
23 | ||||
| 16. |
Miscellaneous |
23 | ||||
| 17. |
Recognition of the U.S. Special Resolution Regimes |
24 | ||||
| 18. |
Acknowledgement and Consent to Bail-In of EEA Financial Institutions |
25 | ||||
| 19. |
Acknowledgement and Consent to Bail-In of UK Financial Institutions |
26 | ||||
| ANNEX | ||||
| Annex A | — | Time of Sale Information | ||
| Annex B | — | Form of Pricing Term Sheet | ||
| Annex C | — | Form of Opinion of Counsel for the Company | ||
| Annex D | — | Form of Opinion of Associate General Counsel of the Company | ||
The Company hereby confirms its agreement with the several Underwriters concerning the purchase and sale of the Securities, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration statement on Form S-3 (File No. 333-297387), including a prospectus, relating to the Securities.
At or prior to 2:30 p.m., New York City time, on November 4, 2026, the time when sales of the Securities were first made (the “Time of Sale”), the Company had prepared the following information (collectively, the “Time of Sale Information”): a Preliminary Prospectus (as defined below) dated November 4, 2026, and each “free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed under the caption “Time of Sale Information” on Annex A hereto.
2. Purchase and Sale of the Securities. The Company agrees to issue and sell the Securities to the several Underwriters as provided in this agreement (this “Agreement”), and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the principal amount of Securities set forth opposite such Underwriter’s name in Schedule 1 hereto at a price equal to 99.355% of the principal amount of the Securities, plus, accrued interest, if any, from November 6, 2026 to the Closing Date (as defined below). The Company will not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein.
(a) The Company understands that the Underwriters intend to make a public offering of the Securities as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the Securities on the terms set forth in the Time of Sale Information. The Company acknowledges and agrees that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter.
(b) Payment for and delivery of the Securities will be made electronically at 10:00 a.m., New York City time, on November 6, 2026, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives and the Company may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “Closing Date”.
(c) Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Company to the Representatives against delivery to the nominee of The Depository Trust Company (“DTC”), for the account of the Underwriters, of one or more global notes representing the Securities (the “Global Notes”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Company. The Global Notes will be made available for inspection by the Representatives electronically not later than 4:00 p.m., New York City time, on the business day prior to the Closing Date.
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(d) The Company acknowledges and agrees that each Underwriter is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. The Company waives to the full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of the Securities. Additionally, neither the Representatives nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Representatives or any Underwriter of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representatives or such Underwriter, as the case may be, and shall not be on behalf of the Company or any other person.
3. Representations and Warranties of the Company. The Company represents and warrants to each Underwriter that:
(a) Registration Statement and Prospectus. An “automatic shelf registration statement” as defined under Rule 405 under the Securities Act on Form S-3 (File No. 333-297387) in respect of the Securities, containing a Base Prospectus (as defined below), has been filed with the Commission not earlier than three years prior to the date hereof; such registration statement, and any post-effective amendment thereto, became effective on filing under Rule 462(e) under the Securities Act; and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Company, threatened by the Commission, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; the base prospectus, dated July 10, 2026, relating to the securities of the Company to be offered from time to time pursuant to Rule 415 under the Securities Act included in the Registration Statement (as defined below) is hereinafter called the “Base Prospectus”; the various parts of such registration statement as of the Effective Date (as defined below), including all exhibits thereto, but excluding Form T-1 (with respect to which the Company makes no representations and warranties, notwithstanding anything in this Agreement to the contrary), and the information, if any, deemed to be part of such registration statement at the time of the Effective Date, are hereinafter collectively called the “Registration Statement”; as used herein the term “Effective Date” means the effective date of the Registration Statement pursuant to Rule 430B under the Securities Act for purposes of liability under Section 11 of the Securities Act of the Company and the Underwriters with respect to the offering of the Securities; the Base Prospectus, as amended and supplemented by the preliminary prospectus supplement, dated November 4, 2026 and filed pursuant to Rule 424(b) under the Securities Act, relating to the Securities, is hereinafter called the “Preliminary Prospectus”; the Base Prospectus, as amended and supplemented by the final prospectus supplement relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act in accordance with Section 4(a) hereof is hereinafter called the “Prospectus”; any reference herein to the
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Registration Statement, the Base Prospectus, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the Effective Date of the Registration Statement or the date of such prospectus; any reference to any amendment or supplement to the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement and any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated therein, in each case after the date of the Preliminary Prospectus or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the Securities Act relating to the Securities is hereinafter called an “Issuer Free Writing Prospectus”.
(b) Preliminary Prospectus. No order preventing or suspending the use of the Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and the Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”) and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters through you expressly for use therein, such information consisting solely of the Underwriter Information (as defined herein).
(c) Time of Sale Information. The Time of Sale Information as of the Time of Sale, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus listed under the caption “Time of Sale Information” on Annex A hereto did not, as of the time of issue on its issue date, and, to the extent not amended, modified or superseded, at all subsequent times through the Prospectus Delivery Period (as hereinafter defined) will not, conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the Time of Sale Information as of the Time of Sale, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements or omissions made in an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters through you expressly for use therein, such information consisting solely of the Underwriter Information.
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(d) Conform to Requirements. (i) The Registration Statement and Preliminary Prospectus conform, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder; (ii) the Registration Statement did not and will not, as of the applicable effective date as to each part of the Registration Statement and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) the Prospectus did not and will not, as of its date and on the Closing Date, contain an untrue statement of a material fact or omit 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; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters through you expressly for use therein, such information consisting solely of the Underwriter Information.
(e) Incorporated Documents. The documents incorporated by reference in the Preliminary Prospectus and the Prospectus and any amendments thereof or supplements thereto, at the time they were or hereafter are filed with the Commission, complied or will comply, as the case may be, in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder.
(f) Financial Statements. The consolidated financial statements incorporated by reference in the Time of Sale Information and the Prospectus and any amendments thereof or supplements thereto present fairly in all material respects 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 (“GAAP”) applied on a consistent basis during the periods involved, except as indicated therein, and the supporting schedules incorporated by reference in the Time of Sale Information and the Prospectus present fairly the information required to be stated therein.
(g) No Material Adverse Change. Since the date as of which information is given in the Time of Sale Information and the Prospectus, there has been no material adverse change in, or any development known to the Company which would have a material adverse effect on, the 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 (a “Material Adverse Effect”), except as set forth or contemplated in the Time of Sale Information and the Prospectus.
(h) Well-Known Seasoned Issuer. The Company is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act) and is not an “ineligible issuer” pursuant to Rule 405 under the Securities Act, in each case within the time periods set forth in Rule 164(h) of the Securities Act and paragraph (2) of the definition of well-known seasoned issuer under Rule 405 of the Securities Act.
(i) Organization and Good Standing. 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.
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(j) Certified U.S. Air Carrier. The Company (i) is an “air carrier” within the meaning of 49 U.S.C. Section 40102(a)(2), (ii) holds an air carrier operating certificate issued by the Administrator of the Federal Aviation Administration 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 (“Aircraft”), (iii) is a “citizen of the United States” as defined in 49 U.S.C. Section 40102(a)(15) 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; and each Significant Subsidiary (as defined in Regulation S-X) of the Company has been duly incorporated or formed and is validly existing as a corporation or otherwise in good standing under the laws of its jurisdiction of incorporation or formation.
(k) Capitalization. The Company has the capitalization set forth in each of the Registration Statement, the Time of Sale Information and the Prospectus under the heading “Capitalization”; and all the outstanding shares of capital stock or other equity interests of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable (except, in the case of any foreign subsidiary, for directors’ qualifying shares) and are owned directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party.
(l) Due Authorization. This Agreement, the Securities and the Indenture, each of which the Company is, or is to be, a party to, have each been duly authorized by the Company. This Agreement, the Securities and the Indenture, each of which the Company is, or is to be, a party to, have been or will be at or prior to the Closing Date, duly executed and delivered by the Company. This Agreement, the Securities and the Indenture, each of which the Company is, or is to be, a party to, when duly executed and delivered by the Company, assuming that such documents constitute the legal, valid and binding obligations of each other party thereto, constitute or will constitute the legal, valid and binding obligations of the Company, 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. This Agreement, the Securities and the Indenture conform or will conform in all material respects to the descriptions thereof in the Time of Sale Information and the Prospectus and any amendments thereof or supplements thereto, to the extent described therein. The Indenture will conform in all material respects to the requirements of the Trust Indenture Act.
(m) The Securities. The Securities, when: (i) duly executed and delivered by the Company, (ii) duly authenticated by the Trustee in accordance with the terms of the Indenture and (iii) issued and paid for in accordance with the terms of this Agreement, will be duly issued under the Indenture and will constitute the legal, valid and binding obligations of the Company, 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, as so limited, the holders thereof will be entitled to the benefits of the Indenture.
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(n) Descriptions of Laws. The statements set forth in the Registration Statement, the Time of Sale Information and the Prospectus under the headings “Certain U.S. Federal Income Tax Considerations” and “Underwriting; Conflicts of Interest”, insofar as such statements purport to summarize the laws and legal matters referred to therein, constitute accurate summaries thereof in all material respects.
(o) No Violation or Default. Neither the Company nor any of its subsidiaries is: (i) in violation of its charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in 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 to which any property or asset of the Company or any of its subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(p) No Conflicts. The execution and delivery by the Company of this Agreement, the Securities and the Indenture 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, 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, and that would not affect the validity of the Securities), nor will such action result in any violation of the provisions of the Amended and Restated Certificate of Incorporation or Bylaws of the Company, or any statute or any order, rule or regulation of any court or governmental agency or body (other than registration of the Securities under the Securities Act), having jurisdiction over the Company or any of its subsidiaries or any of their respective properties; and except as disclosed in the Time of Sale Information and the Prospectus, 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 Securities, the valid authorization, execution, delivery and performance by the Company of this Agreement and the Indenture 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 Securities and the Indenture to which the Company is, or is to be, a party, except such as are required under the “Blue Sky” or securities laws of the various states.
(q) Legal Proceedings. Other than as set forth in the Time of Sale Information and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, in the reasonable judgment of the Company, individually or in the aggregate, are likely to have a Material Adverse Effect; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
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(r) Cybersecurity; Data Protection. Except as disclosed in the Time of Sale Information and the Prospectus or as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) the Company and its subsidiaries’ information technology assets, equipment, and systems (collectively, “IT Systems”) are, to the knowledge of the Company, adequate for and operate and perform as required in connection with the operation of their businesses as currently conducted free and clear of any material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants, (ii) the Company and its subsidiaries have implemented and maintained commercially reasonable controls, policies, procedures, and safeguards designed to protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data (including all personally identifiable data and other regulated data (“Personal Data”)) used in connection with their businesses, and, to the knowledge of the Company, there have been no breaches, violations, outages or unauthorized uses of or accesses to the same, and (iii) the Company and its subsidiaries are presently in compliance with all applicable laws and all judgments, orders, rules and regulations of any court or governmental or regulatory authority relating to the privacy and security of IT Systems and Personal Data.
(s) Independent Accountants. Ernst & Young LLP, which reported on certain annual consolidated financial statements of the Company incorporated by reference in the Time of Sale Information and the Prospectus, is an independent registered public accounting firm as required by the Securities Act and the rules and regulations thereunder.
(t) Investment Company Act. The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, will not be required to register as an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(u) Licenses and Permits. Except as described in the Time of Sale Information and the Prospectus, the Company and each material subsidiary possess all licenses, certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, except to the extent that the failure to possess such licenses, certificates, authorizations or permits would not have a Material Adverse Effect; and to the Company’s knowledge neither the Company nor any material subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit, with respect to which any unfavorable decision, ruling or finding would, individually or in the aggregate, result in a Material Adverse Effect.
(v) No Labor Disputes. Except as otherwise disclosed in the Time of Sale Information and the Prospectus, no labor problem or dispute with the employees of the Company or any of its subsidiaries, that could reasonably be expected to have a Material Adverse Effect, exists or, to the knowledge of the Company, is threatened.
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(w) Certain Environmental Matters. Except as otherwise disclosed in the Time of Sale Information and the Prospectus, (i) the Company and its subsidiaries are in compliance with any and all applicable foreign, federal, state and local laws, regulations, consent orders and consent decrees, to which the Company or any of its subsidiaries is a party, relating to the protection of human health (to the extent related to exposure to hazardous or toxic substances or wastes, pollutants or contaminants, including petroleum products and by-products), the environment or hazardous or toxic substances or wastes, pollutants or contaminants, including petroleum products (collectively, “Environmental Laws”); (ii) the Company and its subsidiaries have and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; (iii) the Company and its subsidiaries have not received notice of, or assumed via contract or, to the Company’s knowledge, operation of law, any actual or potential liability for the investigation or remediation of any exposure to, or disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, including petroleum products; and (iv) with respect to the Trainer refinery located in the boroughs of Marcus Hook and Trainer, Pennsylvania (the “Trainer Refinery”) owned by the Company’s wholly-owned subsidiary, Monroe Energy, LLC (“Monroe”), Monroe has been provided by the party from whom the Trainer Refinery was acquired, subject to certain limitations, an indemnity regarding certain known and unknown environmental conditions, at, on, under or emanating from, or relating to the Trainer Refinery, except regarding each of the foregoing clauses (i) through (iv), as would not, individually or in the aggregate, result in a Material Adverse Effect.
(x) Disclosure Controls. The Company maintains “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to provide reasonable assurance that material information relating to the Company and its subsidiaries is made known to the Company’s principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective.
(y) Accounting Controls. The Company and each of its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since the end of the Company’s most recent audited fiscal year, there has been (1) no significant deficiency or material weakness identified by management or by the Company’s auditors and communicated to management or the Audit Committee of the Board of Directors of the Company in the Company’s internal control over financial reporting (whether or not remediated) and (2) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
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(z) Insurance. The Company and its subsidiaries have insurance covering their respective properties, operations, personnel and businesses, including business interruption insurance, which insurance is in amounts and insures against such losses and risks (x) as are adequate to protect the Company and its subsidiaries and their respective businesses and (y) as is customary for major U.S. airlines operating similar flight equipment over similar routes; and neither the Company nor any of its subsidiaries has (i) received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance or (ii) any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage at reasonable cost from similar insurers as may be necessary to continue its business.
(aa) No Unlawful Payments. Neither the Company nor any of its subsidiaries or affiliates, nor to the Company’s knowledge after due inquiry, any director, officer, employee, agent or representative of the Company or of any of its subsidiaries or affiliates, has taken any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) or other person to influence official action or secure an improper advantage in violation of (a) the U.S. Foreign Corrupt Practices Act of 1977, (b) the UK Bribery Act 2010, and (c) any other law, rule or regulation of any jurisdiction applicable to the Company relating to bribery or corruption (collectively, the “Anti-Corruption Laws”); and the Company and its subsidiaries and affiliates have conducted their businesses in material compliance with applicable Anti-Corruption Laws and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.
(bb) Compliance with Anti-Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act of 1970, the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable provisions of the USA PATRIOT Act of 2001, the Money Laundering Control Act of 1986, the Anti-Money Laundering Act of 2020, and the applicable money laundering statutes of all jurisdictions where the Company or any of its subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(cc) No Conflicts with Sanctions Laws.
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(i) Neither the Company nor any of its subsidiaries, nor, to the Company’s knowledge, any director, officer, employee, agent, affiliate or representative of the Company or any of its subsidiaries, is an individual or entity (“Person”) that is, or is owned or controlled by a Person that is:
| (1) | the subject of any sanctions administered or enforced by the United States Government (including the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) and the U.S. Department of State), the United Nations Security Council (“UNSC”), the European Union (“EU”), His Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor |
| (2) | located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, and the Crimea, Kherson, and Zaporizhzhia regions of Ukraine). |
(ii) Except as permitted by OFAC, any license, exemption, or as otherwise authorized by provision of law, the Company and each of its subsidiaries have not, since April 24, 2019, knowingly engaged in, and are not now knowingly engaged in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(dd) No Restrictions on Subsidiaries. No subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock or similar ownership interest, from making loans or advances to the Company or repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s properties or assets to the Company or any other subsidiary of the Company.
(ee) No Brokers’ Fees. Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against any of them or any Underwriter for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Securities.
(ff) No Registration Rights. No person has the right to require the Company or any of its subsidiaries to register any securities for sale under the Securities Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Securities.
(gg) No Stabilization. The Company has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(hh) Margin Rules. Neither the issuance, sale and delivery of the Securities nor the application of the proceeds thereof by the Company as described in each of the Registration Statement, the Time of Sale Information and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors.
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(ii) Statistical and Market Data. Any statistical and market-related data included in the Time of Sale Information and the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate in all material respects, and the Company has obtained the written consent to the use of such data from such sources where required.
(jj) Reporting Obligations. The Company is subject to Section 13 or 15(d) of the Exchange Act.
4. Further Agreements of the Company. The Company covenants and agrees with each Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) (without regard to Rule 424(b)(8)) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus (including the Pricing Term Sheet referred to in Annex B hereto) to the extent required by Rule 433 under the Securities Act; and the Company will timely file all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; and the Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 5:00 p.m., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Representatives may reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge, upon request (i) to the Representatives, two signed copies of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and documents incorporated by reference therein; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and (B) during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of time after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Securities by any Underwriter or dealer.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. Before making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time that the Registration Statement becomes effective, with respect to the Securities, the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representatives reasonably object.
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(d) Notice to the Representatives. The Company will advise the Representatives promptly, and confirm such advice in writing: (i) when the Registration Statement has become effective with respect to the Securities; (ii) when any amendment to the Registration Statement has been filed or becomes effective; (iii) when any supplement to the Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed; (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (v) of the issuance by the Commission or any other governmental or regulatory authority of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus, any Time of Sale Information or any Issuer Free Writing Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (vi) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, any of the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vii) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (viii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Time of Sale Information, Issuer Free Writing Prospectus or the Prospectus, or suspending any such qualification of the Securities and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
(e) Time of Sale Information. If at any time prior to the Closing Date: (i) any event shall occur or condition shall exist as a result of which any of the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Time of Sale Information (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in any of the Time of Sale Information as so amended or supplemented (including such documents to be incorporated by reference therein) will not, in the light of the circumstances under which they were made, be misleading or so that any of the Time of Sale Information will comply with law.
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(f) Ongoing Compliance. If during the Prospectus Delivery Period: (i) any event shall occur or condition shall exist 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 in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Prospectus (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in the Prospectus as so amended or supplemented including such documents to be incorporated by reference therein will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law.
(g) Blue Sky Compliance. The Company will qualify the Securities for offer and sale under the securities or “Blue Sky” laws of such jurisdictions as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for distribution of the Securities; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(h) Earning Statement. The Company will make generally available to its security holders and the Representatives as soon as practicable an earning statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the “effective date” (as defined in Rule 158) of the Registration Statement.
(i) Clear Market. During the period from the date hereof through and including the Closing Date, the Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company and having a tenor of more than one year.
(j) Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities as described in each of the Registration Statement, the Time of Sale Information and the Prospectus under the heading “Use of Proceeds”. The Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person: (i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions, except to the extent licensed by OFAC or otherwise authorized under applicable law; or (ii) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(k) Anti-Corruption, Anti-Money Laundering, Sanctions Compliance. The Company and its subsidiaries and affiliates have instituted and maintained, and will continue to maintain, policies and procedures reasonably designed to promote and achieve compliance with applicable Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions.
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(l) DTC. The Company will assist the Underwriters in arranging for the Securities to be eligible for clearance and settlement through DTC.
(m) No Stabilization. The Company will not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(n) Record Retention. The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning for use of, any “free-writing prospectus”, as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into the Registration Statement and any press release issued by the Company) other than: (i) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex A or prepared pursuant to Section 3(a) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved by the Company in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”). Notwithstanding the foregoing, the Underwriters may use the Pricing Term Sheet referred to in Annex B hereto without the consent of the Company.
(b) It is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering of the Securities (and will promptly notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period).
6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to purchase Securities on the Closing Date as provided herein is subject to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
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(b) Representations and Warranties. The representations and warranties of the Company contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the Company and its officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(c) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined under Section 3(a)(62) under the Exchange Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change. No event or condition of a type described in Section 3(g) hereof shall have occurred or shall exist, which event or condition is not described in each of the Time of Sale Information (excluding any amendment or supplement thereto) and the Prospectus the effect of which in the reasonable judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
(e) Officer’s Certificate. The Representatives shall have received on and as of the Closing Date a certificate of an executive officer of the Company who has specific knowledge of the Company’s financial matters and is satisfactory to the Representatives: (i) confirming that such officer has carefully reviewed the Registration Statement, the Time of Sale Information and the Prospectus and, to the knowledge of such officer, the representations set forth in Section 3(c) and 3(a) hereof are true and correct, (ii) confirming that the other representations and warranties of the Company in this Agreement are true and correct and that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and (d) above; provided, however, such officer need not certify as to the judgment of the Representatives with respect to paragraph (d) above; and provided, further, such certification shall be made solely in such officer’s capacity as an officer of the Company and not as an individual.
(f) Comfort Letters. On the date of this Agreement and on the Closing Date, Ernst & Young LLP shall have furnished to the Representatives, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date.
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(g) Opinion of the Associate General Counsel of the Company. Alan T. Rosselot, Associate General Counsel of the Company, shall have furnished to the Representatives and addressed to the Underwriters, an opinion and a separate negative assurance letter, each dated as of the Closing Date, to the effect set forth in Annex D hereto.
(h) Opinion and 10b-5 Statement of Counsel for the Company. Kilpatrick Townsend & Stockton LLP, counsel for the Company, shall have furnished to the Representatives, at the request of the Company, their written opinion and 10b-5 statement, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex C hereto.
(i) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representatives shall have received on and as of the Closing Date an opinion and 10b-5 statement, addressed to the Underwriters, of Simpson Thacher & Bartlett LLP, counsel for the Underwriters, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(j) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities.
(k) Good Standing. The Representatives shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company and its subsidiaries in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Representatives may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions.
(l) DTC. The Securities shall be eligible for clearance and settlement through DTC.
(m) Indenture and Securities. The Indenture shall have been duly executed and delivered by a duly authorized officer of the Company and the Trustee, and the Securities shall have been duly executed and delivered by a duly authorized officer of the Company and duly authenticated by the Trustee.
(n) Additional Documents. On or prior to the Closing Date, the Company shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
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7. Indemnification and Contribution
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors and officers, as well as any affiliate’s officers and directors, and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, reasonable legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, or caused by any omission or alleged omission to state therein 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 each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information consists of the following statements in the Preliminary Prospectus and the Prospectus (the “Underwriter Information”): the second and third sentences of the third paragraph, the third sentence of the eighth paragraph, the first, sixth and seventh sentences of the ninth paragraph and the eleventh paragraph under the caption “Underwriting; Conflicts of Interest”.
(b) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors and officers and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, it being understood and agreed that the only such information consists of the Underwriter Information.
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further,
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that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may designate in such proceeding and shall pay the reasonable fees and expenses of such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding, as incurred upon receipt by the Indemnifying Person of an invoice therefor. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid or reimbursed as they are incurred upon receipt by the Indemnifying Person of an invoice therefor. Any such separate firm for any Underwriter, its affiliates, directors and officers and any control persons of such Underwriter shall be designated in writing by the Representatives and any such separate firm for the Company, its directors and officers and any control persons of the Company shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment in favor of the Indemnified Person(s), the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by the Indemnifying Person of such request; (ii) the Indemnifying Person shall have received notice of the terms of such settlement at least 20 days prior to such settlement being entered into; and (iii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
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(d) Contribution. If the indemnification provided for in paragraph (a) or (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) 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 Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) 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 that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Company from the sale of the Securities and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Securities. The relative fault of the Company on the one hand and the Underwriters on the other 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 by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 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 that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any reasonable legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Securities exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 7 are several in proportion to their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
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8. Effectiveness of Agreement. This Agreement shall become effective as of the date first written above.
9. Termination. This Agreement may be terminated in the absolute discretion of the Representatives, by notice to the Company, if after the execution and delivery of this Agreement and on or prior to the Closing Date (i) trading generally shall have been suspended or materially limited on The New York Stock Exchange or the over-the-counter market; (ii) trading of any securities issued or guaranteed by the Company shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
10. Defaulting Underwriter.
(a) If, on the Closing Date, any Underwriter defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Registration Statement, the Time of Sale Information and the Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Registration Statement, the Time of Sale Information and the Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 10, purchases Securities that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus such Underwriter’s pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
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(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the Company does not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of the Company, except that the Company will continue to be liable for the payment of its expenses as set forth in Section 11 hereof for each Underwriter that has not defaulted on its obligations hereunder and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company or to any non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company agrees to pay or cause to be paid all costs and expenses incident to the performance of its obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Securities and any taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing this Agreement, the Indenture and the Securities; (iv) the fees and expenses of the Company’s counsel and independent accountants; (v) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the Securities under the laws of such jurisdictions as the Representatives may designate and the preparation, printing and distribution of a “Blue Sky” memorandum (including the related fees and expenses of counsel for the Underwriters); (vi) any fees charged by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee and any paying agent (including related fees and expenses of any counsel to such parties); (viii) all expenses and application fees incurred in connection with any filing with, and clearance of the offering by, the Financial Industry Regulatory Authority (“FINRA”), and the approval of the Securities for book-entry transfer by DTC (including the reasonable related fees and expenses of counsel for the Underwriters with respect to compliance with FINRA obligations); and (ix) all expenses incurred by the Company in connection with any “road show” presentation to potential investors.
(b) If (i) this Agreement is terminated pursuant to Section 9 (ii) or (ii) the Company for any reason fails to tender the Securities for delivery to the Underwriters or (iii) the Underwriters decline to purchase the Securities for any reason permitted under this Agreement other than Sections 9 (i), (iii) or (iv) and 10, the Company agrees to reimburse the Underwriters for all out-of-pocket costs and expenses (including the reasonable fees and expenses of their counsel upon the receipt by the Company of an invoice therefor) reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby.
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12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and any controlling persons referred to herein, and the affiliates of each Underwriter (and the directors and officers of such affiliates) referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
13. Survival. The respective indemnities, rights of contribution, representations, warranties and agreements of the Company and the Underwriters contained in this Agreement or made by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Company or the Underwriters.
14. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted or required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act.
15. Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
16. Miscellaneous.
(a) Authority of the Representatives. Any action by the Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters, and any such action taken by the Representatives shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representatives c/o BofA Securities, Inc., 114 West 47th Street, NY8-114-07-01, New York, New York 10036, Facsimile: (212) 901-7881, Attention: High Grade Debt Capital Markets Transaction Management/Legal; c/o Citigroup Global Markets Inc., 388 Greenwich Street, New York, New York 10013, Attention: General Counsel, Facsimile: 646-291-1469; c/o Deutsche Bank Securities Inc., 1 Columbus Circle, New York, New York 10019, Attention: Debt Capital Markets Syndicate, with a copy to General Counsel, Email:
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dbcapmarkets.gcnotices@list.db.com; c/o Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282-2198, Attention: Registration Department, Email: registration-syndops@ny.email.gs.com; or c/o Standard Chartered Bank, One Basinghall Avenue, London EC2V 5DD, United Kingdom, Email: SCBCapitalMarketsNotice@sc.com, Attention: Capital Markets, Tel: +44 207 885 8888, with a copy to Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, New York 10017; Attention: David Azarkh. Notices to the Company shall be given to it at Delta Air Lines, Inc., Dept. 856, 1030 Delta Boulevard, Atlanta, GA 30354 (fax: 404-715-3110); Attention: Treasurer.
(c) Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the laws of the State of New York.
(d) Submission to Jurisdiction. The Company hereby submits to the nonexclusive jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Company waives any objection which it may now or hereafter have to the laying of venue of any such suit or proceeding in such courts. The Company agrees that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Company and may be enforced in any court to the jurisdiction of which the Company is subject by a suit upon such judgment.
(e) Waiver of Jury Trial. Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding arising out of or relating to this Agreement.
(f) Counterparts. This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument.
(g) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(h) Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
(i) Signatures. Any signature to this Agreement may be delivered by facsimile, electronic mail (including pdf) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the New York Electronic Signature and Records Act or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes to the fullest extent permitted by applicable law.
17. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
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(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
(c) For purposes of this Section 17, a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
18. Acknowledgement and Consent to Bail-In of EEA Financial Institutions.
(a) Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements or understanding between the Company and the BRRD Party, the Company acknowledges and accepts that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts, and agrees to be bound by:
(i) the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of the BRRD Party to the Company under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:
| (1) | the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon; |
| (2) | the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of the BRRD Party or another person, and the issue to or conferral on the Company of such shares, securities or obligations; |
| (3) | the cancellation of the BRRD Liability; |
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| (4) | the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and |
(ii) the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority.
(b) For purposes of this Section 18:
(i) “Bail-in Legislation” means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time;
(ii) “Bail-in Powers” means any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation;
(iii) “BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms;
(iv) “BRRD Liability” means a liability in respect of which the relevant Bail-in Powers in the applicable Bail-in Legislation may be exercised;
(v) “BRRD Party” means each Underwriter;
(vi) “EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/pages.aspx?p=499 (or any such successor webpage); and
(vii) “Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the BRRD Party.
19. Acknowledgement and Consent to Bail-In of UK Financial Institutions.
(a) Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements, or understanding between the Company and the UK Bail-in Party, the Company acknowledges and accepts that a UK Bail-in Liability arising under this Agreement may be subject to the exercise of UK Bail-in Powers by the Relevant UK Resolution Authority, and acknowledges, accepts, and agrees to be bound by:
(i) the effect of the exercise of UK Bail-in Powers by the Relevant UK Resolution Authority in relation to any UK Bail-in Liability of the UK Bail-in Party to the Company under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:
| (1) | the reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon; |
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| (2) | the conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other obligations of the UK Bail-in Party or another person, and the issue to or conferral on the Company of such shares, securities or obligations; |
| (3) | the cancellation of the UK Bail-in Liability; |
| (4) | the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and |
(ii) the variation of the terms of this Agreement, as deemed necessary by the Relevant UK Resolution Authority, to give effect to the exercise of UK Bail-in Powers by the Relevant UK Resolution Authority.
(b) For purposes of this Section 19:
(i) “Relevant UK Resolution Authority” means the resolution authority with the ability to exercise any UK Bail-in Powers in relation to the UK Bail-in Party;
(ii) “UK Bail-in Legislation” means Part I of the UK Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings);
(iii) “UK Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised;
(iv) “UK Bail-in Party” means each Underwriter; and
(v) “UK Bail-in Powers” means the powers under the UK Bail-in Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability.
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If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
| Very truly yours, | ||
| DELTA AIR LINES, INC. | ||
| By: | /s/ Kenneth W. Morge II | |
| Name: | Kenneth W. Morge II | |
| Title: | Senior Vice President – Finance & Treasurer | |
[Underwriting Agreement – Signature Page]
| Accepted: As of the date first written above | ||
| For itself and on behalf of the | ||
| several Underwriters listed | ||
| in Schedule 1 hereto. | ||
| BOFA SECURITIES, INC. | ||
| By: | /s/ Shawn Cepeda | |
| Name: | Shawn Cepeda | |
| Title: | Managing Director | |
[Underwriting Agreement – Signature Page]
| Accepted: As of the date first written above | ||
| For itself and on behalf of the | ||
| several Underwriters listed | ||
| in Schedule 1 hereto. | ||
| CITIGROUP GLOBAL MARKETS INC. | ||
| By: | /s/ Adam D. Bordner | |
| Name: | Adam D. Bordner | |
| Title: | Managing Director | |
[Underwriting Agreement – Signature Page]
| Accepted: As of the date first written above | ||
| For itself and on behalf of the | ||
| several Underwriters listed | ||
| in Schedule 1 hereto. | ||
| DEUTSCHE BANK SECURITIES INC. | ||
| By: | /s/ Rafael Kuhn | |
| Name: | Rafael Kuhn | |
| Title: | Managing Director | |
| By: | /s/ Cole Adams | |
| Name: | Cole Adams | |
| Title: | Director | |
[Underwriting Agreement – Signature Page]
| Accepted: As of the date first written above | ||
| For itself and on behalf of the | ||
| several Underwriters listed | ||
| in Schedule 1 hereto. | ||
| GOLDMAN SACHS & CO. LLC | ||
| By: | /s/ Jonathan K. Zwart | |
| Name: | Jonathan K. Zwart | |
| Title: | Managing Director | |
[Underwriting Agreement – Signature Page]
| Accepted: As of the date first written above | ||
| For itself and on behalf of the | ||
| several Underwriters listed | ||
| in Schedule 1 hereto. | ||
| STANDARD CHARTERED BANK | ||
| By: | /s/ Patrick Dupont-Liot | |
| Name: | Patrick Dupont-Liot | |
| Title: | Managing Director, Debt Capital Markets | |
[Underwriting Agreement – Signature Page]
SCHEDULE 1
| Underwriter |
Principal Amount of Securities |
|||
| BofA Securities, Inc. |
$ | 60,000,000 | ||
| Citigroup Global Markets Inc. |
$ | 60,000,000 | ||
| Deutsche Bank Securities Inc. |
$ | 60,000,000 | ||
| Goldman Sachs & Co. LLC |
$ | 60,000,000 | ||
| Standard Chartered Bank |
$ | 60,000,000 | ||
| BNP Paribas Securities Corp. |
$ | 20,000,000 | ||
| Credit Agricole Securities (USA) Inc. |
$ | 20,000,000 | ||
| Fifth Third Securities, Inc. |
$ | 20,000,000 | ||
| J.P. Morgan Securities LLC |
$ | 20,000,000 | ||
| Morgan Stanley & Co. LLC |
$ | 20,000,000 | ||
| MUFG Securities Americas Inc. |
$ | 20,000,000 | ||
| Natixis Securities Americas LLC |
$ | 20,000,000 | ||
| Natwest Markets Securities Inc. |
$ | 20,000,000 | ||
| PNC Capital Markets LLC |
$ | 20,000,000 | ||
| Regions Securities LLC |
$ | 20,000,000 | ||
| Total: |
$ | 500,000,000 | ||
Sch 1-1
ANNEX A
Time of Sale Information
| • | Pricing Term Sheet, dated November 4, 2026, substantially in the form of Annex B. |
A-1
ANNEX B
Pricing Term Sheet
Attached.
Issuer Free Writing Prospectus filed pursuant to Rule 433
Registration Statement No. 333-297387
Pricing Term Sheet
Dated November 4, 2026
DELTA AIR LINES, INC.
5.500% Notes Due 2029
| Issuer: | Delta Air Lines, Inc. | |
| Principal Amount: | $500,000,000 | |
| Maturity Date: | November 6, 2029 | |
| Coupon: | 5.500% | |
| Public Offering Price: | 99.855% of the principal amount | |
| Yield to Maturity: | 5.553% | |
| Spread to Benchmark to Treasury: | 92 basis points | |
| Benchmark Treasury: | 4.875% UST due October 15, 2029 | |
| Benchmark Treasury Price and Yield: | 100-21 / 4.633% | |
| Interest Payment Dates: | May 6 and November 6, commencing May 6, 2027 | |
| Optional Redemption: | At any time prior to October 6, 2029 (one month prior to the maturity date), the Notes will be redeemable at the Issuer’s option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of: (1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Notes matured on October 6, 2029) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 15 basis points less (b) interest accrued to, but not including, the date of redemption and (2) 100% of the principal amount of the Notes to be redeemed, plus, in either case, accrued and unpaid interest thereon, if any, up to, but not including, the redemption date.
At any time on or after October 6, 2029, the Notes will be redeemable, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but not including, the redemption date. | |
| Settlement Date: | T+2; November 6, 2026 | |
| CUSIP: | 247361 A40 | |
| ISIN: | US247361A402 | |
| Ratings (Moody’s / S&P / Fitch)*: | Baa2 / BBB- / BBB | |
| Minimum Denomination: | $2,000 and integral multiples of $1,000 in excess thereof | |
B-1
| Joint Book-Running Managers: | BofA Securities, Inc. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. Goldman Sachs & Co. LLC Standard Chartered Bank | |
| Passive Book-Runners: | BNP Paribas Securities Corp. Credit Agricole Securities (USA) Inc. Fifth Third Securities, Inc. J.P. Morgan Securities LLC Morgan Stanley & Co. LLC MUFG Securities Americas Inc. Natixis Securities Americas LLC Natwest Markets Securities Inc. PNC Capital Markets LLC Regions Securities LLC | |
The information herein supplements the preliminary prospectus supplement and supersedes the information in the preliminary prospectus supplement to the extent inconsistent with the information in the preliminary prospectus supplement.
Unless otherwise indicated, terms used but not defined herein have the meanings assigned to such terms in the preliminary prospectus supplement.
It is expected that delivery of the Notes will be made against payment on the Notes on or about November 6, 2026, which will be two business days (as such term is used for purposes of Rule 15c6-1 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) following the date of pricing of the Notes (this settlement cycle is referred to as “T+2”). Under Rule 15c6-1 of the Exchange Act, trades in the secondary market generally are required to settle in one business day unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the Notes on the date of pricing or after such date but before settlement occurs may be required, by virtue of the fact that the Notes will settle in T+2, to specify an alternative settlement cycle at the time of any such trade to prevent a failed settlement. Purchasers of the Notes who wish to make such trades should consult their own advisors.
* Note: A securities rating is not a recommendation to buy, sell or hold securities and may be revised or withdrawn at any time.
The Issuer has filed a registration statement (including a base prospectus and preliminary prospectus supplement) with the SEC for the offering to which this communication relates. Before you invest, you should read the base prospectus and preliminary prospectus supplement in that registration statement and other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the Issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling BofA Securities, Inc. toll-free at 1-800-294-1322, Citigroup Global Markets Inc. toll-free at 1-800-831-9146, Deutsche Bank Securities Inc. toll-free at 1 (800) 503-4611, Goldman Sachs & Co. LLC toll-free at 1-866-471-2526, and Standard Chartered Bank at +44-207-885-8888.
B-2
ANNEX C
Form of Opinion of Counsel for the Company
Attached.
[***]
C-1
ANNEX D
Form of Delta Internal Counsel Underwriting Agreement Opinion
Attached.
[***]
D-1
Form of Delta Negative Assurance Letter
Attached.
[***]
D-2
Exhibit 4.1
DELTA AIR LINES, INC.
AND
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
Trustee
SEVENTH SUPPLEMENTAL INDENTURE
Dated as of November 6, 2026
to
INDENTURE
Dated as of March 6, 2017
5.500% Notes due 2029
TABLE OF CONTENTS
| Page | ||||||||
| ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION | 2 | |||||||
| SECTION 1.01. |
Certain Terms Defined | 2 | ||||||
| SECTION 1.02. |
Base Indenture | 8 | ||||||
| ARTICLE TWO GENERAL TERMS AND CONDITIONS OF THE NOTES | 9 | |||||||
| SECTION 2.01. |
Description and Principal Amount | 9 | ||||||
| SECTION 2.02. |
Maturity | 9 | ||||||
| SECTION 2.03. |
Additional Issues | 9 | ||||||
| SECTION 2.04. |
Payment | 9 | ||||||
| SECTION 2.05. |
Global Notes | 9 | ||||||
| SECTION 2.06. |
Interest | 9 | ||||||
| SECTION 2.07. |
Authorized Denominations | 10 | ||||||
| SECTION 2.08. |
Redemption | 10 | ||||||
| SECTION 2.09. |
Appointment of Agents | 10 | ||||||
| ARTICLE THREE COVENANTS OF THE COMPANY | 10 | |||||||
| SECTION 3.01. |
Limitations on Liens | 10 | ||||||
| ARTICLE FOUR EVENTS OF DEFAULT | 11 | |||||||
| SECTION 4.01. |
Events of Default | 11 | ||||||
| ARTICLE FIVE REDEMPTION AND REPURCHASE OF THE NOTES | 12 | |||||||
| SECTION 5.01. |
Optional Redemption by Company | 12 | ||||||
| SECTION 5.02. |
No Sinking Fund | 13 | ||||||
| SECTION 5.03. |
Offer to Repurchase Upon a Change of Control Triggering Event | 13 | ||||||
| SECTION 5.04. |
Payment If Date Fixed for Redemption or Repurchase Is Not a Business Day | 14 | ||||||
| ARTICLE SIX FORM OF NOTES | 15 | |||||||
| SECTION 6.01. |
Form of Notes | 15 | ||||||
| ARTICLE SEVEN AMENDMENTS, SUPPLEMENTS AND WAIVERS | 15 | |||||||
| SECTION 7.01. |
Amendments, Supplements and Waivers | 15 | ||||||
| ARTICLE EIGHT MISCELLANEOUS | 15 | |||||||
| SECTION 8.01. |
Ratification of Indenture | 15 | ||||||
| SECTION 8.02. |
Conflict with Base Indenture | 15 | ||||||
| SECTION 8.03. |
Trustee Not Responsible for Recitals | 15 | ||||||
| SECTION 8.04. |
Governing Law | 15 | ||||||
| SECTION 8.05. |
Separability | 15 | ||||||
| SECTION 8.06. |
Counterparts | 16 | ||||||
Exhibit A Form of Note
i
THIS SEVENTH SUPPLEMENTAL INDENTURE, dated as of November 6, 2026 (the “Seventh Supplemental Indenture”), between DELTA AIR LINES, INC., a corporation duly organized and existing under the laws of the State of Delaware (hereinafter sometimes referred to as the “Company”), and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association (hereinafter sometimes referred to as the “Trustee”).
RECITALS OF THE COMPANY:
WHEREAS, the Company executed and delivered the indenture, dated as of March 6, 2017 (the “Base Indenture” and as supplemented by this Seventh Supplemental Indenture, the “Indenture”), to the Trustee to provide for the issuance of the Company’s unsecured debentures, notes or other evidences of indebtedness (the “Securities”), to be issued in one or more fully registered series;
WHEREAS, pursuant to Section 9.01 of the Base Indenture, the Company desires to provide for the issuance of $500,000,000 aggregate principal amount of a new series of its Securities to be known as its 5.500% Notes due 2029 (the “Notes”), and to establish the form of the Notes thereof as provided in Section 2.01 of the Base Indenture, and to set forth the terms thereof, as provided in Section 2.03 of the Base Indenture;
WHEREAS, the Board of Directors of the Company, pursuant to resolutions duly adopted on September 24, 2026, has duly authorized management of the Company to engage in certain borrowing and financing transactions, including the issuance of senior unsecured notes, and has authorized the proper officers of the Company to execute any and all documents necessary or appropriate to effect such issuance;
WHEREAS, the Company has requested that the Trustee execute and deliver this Seventh Supplemental Indenture; and
WHEREAS, all things necessary to make this Seventh Supplemental Indenture a valid agreement of the Company, in accordance with its terms, and to make the Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company, have been done or performed;
NOW, THEREFORE, THIS SEVENTH SUPPLEMENTAL INDENTURE WITNESSETH:
In consideration of the premises and the purchases of the Notes by the holders thereof, the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of the holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Certain Terms Defined. Unless the context otherwise requires:
(a) each term defined in the Base Indenture and not otherwise defined herein has the meaning given in the Base Indenture when used in this Seventh Supplemental Indenture;
(b) the singular includes the plural and vice versa;
(c) headings are for convenience of reference only and do not affect interpretation;
(d) a reference to a Section or Article is to a Section or Article of this Seventh Supplemental Indenture unless otherwise indicated; and
(e) the following terms have the meanings given to them in this Section 1.01(e) and shall have the meaning set forth below for purposes of the Indenture with respect to the Notes herein provided for:
“Aircraft Assets” means aircraft, airframes, engines (including spare engines), propellers, parts and other operating assets and pre-delivery payments relating to any of the foregoing.
“Below Investment Grade Rating Event” means the rating on the Notes is lowered by two or more of the Rating Agencies and, as a result, the Notes are rated below Investment Grade by such Rating Agencies on any day within the 60-day period (which 60-day period will be extended so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies) after the earlier of (1) the occurrence of a Change of Control or (2) public notice of the occurrence of a Change of Control or the Company’s intention to effect a Change of Control; provided that a Below Investment Grade Rating Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes of the definition of Change of Control Triggering Event) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Company and the Trustee in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Rating Event).
“Business Day” means a day other than a Saturday, a Sunday, or a day on which banking institutions in New York, New York are authorized or obligated to close.
“Capital Lease” means, at any time, a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP.
“Capital Stock” means:
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(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and
(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.
“Change of Control” means the occurrence of any of the following:
(1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than any such transaction where the holders of the Company’s Voting Stock immediately before that transaction own, directly or indirectly, not less than a majority of the Voting Stock of the transferee, or the parent thereof, immediately after such transaction and in substantially the same proportion as their ownership in the Company before the transaction;
(2) the adoption of a plan relating to the liquidation or dissolution of the Company; and
(3) consummation of any transaction (including without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Company or its Subsidiaries, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the combined voting power of the Company’s Voting Stock or other Voting Stock into which the Company’s Voting Stock is reclassified, consolidated, exchanged, or changed measured by voting power rather than number of shares, other than any such transaction where:
(a) the Company’s outstanding Voting Stock is reclassified, consolidated, exchanged, or changed for other Voting Stock of the Company or for Voting Stock of the surviving corporation; and
(b) the holders of the Company’s Voting Stock immediately before that transaction own, directly or indirectly, not less than a majority of the Company’s Voting Stock or the Voting Stock of the surviving parent corporation immediately after such transaction and in substantially the same proportion as their ownership in the Company before the transaction.
“Change of Control Offer” has the meaning given in Section 5.03.
“Change of Control Payment Date” has the meaning given in Section 5.03.
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“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.
“Consolidated Tangible Assets” means, at any date of determination, the total assets of the Company and its Subsidiaries as of the end of a fiscal quarter reported on the most recently prepared consolidated balance sheet of the Company filed with the Commission, less all assets shown on such consolidated balance sheet that are classified and accounted for as intangible assets of the Company or any of its Subsidiaries or that otherwise would be considered intangible assets under GAAP, including, without limitation, franchises, Intellectual Property, unamortized debt discount and goodwill.
“Covered Property” means any property, tangible or intangible, real or personal, or asset of the Company or any Subsidiary, other than any Aircraft Assets, Slots, Routes, Gate Interests or Loyalty Assets.
“DTC” means The Depository Trust Company.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“Event of Default” has the meaning given in Section 4.01.
“FAA” means the Federal Aviation Administration.
“FAA Slots” means all “slots” as defined in 14 CFR § 93.213(a)(2), as that section may be amended or recodified from time to time, or, in the case of slots at New York LaGuardia Airport, as defined in the Final Order, Operating Limitations at New York LaGuardia Airport, 71 Fed. Reg. 77,854 (December 27, 2006), as such order may be amended or re-codified from time to time, and in any subsequent order issued by the FAA related to New York LaGuardia Airport, as such order may be amended or re-codified from time to time, or, in the case of slots at John F. Kennedy International Airport, as defined in the Operating Limitations at John F. Kennedy International Airport, Order Limiting Scheduled Operations at John F. Kennedy International Airport, 73 Fed. Reg. 3510 (January 18, 2008), as such order may be amended or re-codified from time to time, and in any subsequent order issued by the FAA related to John F. Kennedy International Airport, as such order may be amended or re-codified from time to time, in the case of the Company and, if applicable, any Subsidiary, now held or hereafter acquired (other than “slots” which have been permanently allocated to another air carrier and in which the Company and, if applicable, any Subsidiary holds temporary use rights).
“Fitch” means Fitch Ratings, Inc., also known as Fitch Ratings, and its successors.
“Foreign Slot” means all of the rights and operational authority, now held or hereafter acquired, of the Company and, if applicable, a Subsidiary to conduct one landing or takeoff operation during a specific hour or other period on a specific day of the week at each non-United States airport served in conjunction with the Company’s or such Subsidiary’s operations over a Route, other than “slots” which have been permanently allocated to another air carrier and in which the Company or, if applicable, such Subsidiary holds temporary use rights.
4
“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time.
“Gate Interests” means all of the right, title, privilege, interest, and authority now or hereafter acquired or held by the Company or, if applicable, a Subsidiary in connection with the right to use or occupy holdroom and passenger boarding and deplaning space in any airport terminal at which the Company or any Subsidiary conducts scheduled operations.
“Indebtedness” means any Person’s obligation for borrowed money, including without limitation all obligations evidenced by bonds, debentures, notes or similar instruments.
“Intellectual Property” means all (a) patents, applications for patents and statutory invention registrations, including reissues, divisions, provisionals, non-provisionals, continuations, renewals, re-examinations, extensions and continuations-in-part of the foregoing, (b) Trademarks, (c) registered or unregistered copyrights, copyrightable subject matter, works of authorship, mask works, rights of publicity and all other rights in any works of authorship and all derivative works, translations, adaptations and combinations of any of the foregoing, all applications and registrations therefor, and renewals, extensions and reversions thereof, (d) Trade Secrets, (e) designs, design registrations, design registration applications and integrated circuit topographies, (f) rights in databases and data collections, (g) moral and economic rights of authors and inventors, however denominated, (h) other intellectual property and proprietary rights in all forms and media, and all goodwill associated therewith, now known or hereafter recognized in any jurisdiction worldwide, whether registered or unregistered, and (i) similar or equivalent rights to any of the foregoing, including those arising under international treaties and convention rights.
“Investment Grade” means a rating of BBB- or better by Fitch (or its equivalent under any successor rating category of Fitch); a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s); and a rating of BBB- or better by S&P (or its equivalent under any successor rating category of S&P).
“Issue Date” means the date on which any Notes are first issued under the Base Indenture.
“Lien” means any lien (statutory or otherwise), security interest, mortgage, pledge, hypothecation, charge or similar encumbrance; provided, however, that in no event shall an operating lease, operating sublease or license be deemed to constitute a Lien.
“Loyalty Assets” means all assets which are primarily related to, or used or entered into in connection with, the SkyMiles Program, or which are owned or held by the SkyMiles Group, including, without limitation, (i) Intellectual Property primarily used in or required or necessary to operate the SkyMiles Program, (ii) license, sublicense, contribution, operating, services, lending, administrative, management or similar agreements related to or entered into in connection with the
5
SkyMiles Program, (iii) co-branding, partnering or similar agreements related to or entered into in connection with the SkyMiles Program, (iv) data used, generated or produced as part of the SkyMiles Program, (v) miles, points or other units that are a medium of exchange used under the SkyMiles Program, and agreements governing the sale, transfer or redemption thereof, (vi) Equity Interests in, and debt securities (including debt securities convertible into, or exchangeable for, Equity Interests) and intercompany obligations of, any member of the SkyMiles Group, (vii) any cash, cash equivalents, securities, investment property, deposit accounts or securities accounts related to any of the foregoing and (viii) all proceeds of any of the foregoing.
“Moody’s” means Moody’s Investors Service, Inc., and its successors.
“Par Call Date” means October 6, 2029 (one month prior to the maturity date).
“Payment Default” has the meaning given in Section 4.01.
“Person” means any individual, corporation, partnership, joint venture, limited liability company, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Rating Agency” means (1) each of Fitch, Moody’s, and S&P, and (2) if any of Fitch, Moody’s, or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the Company’s control, a “nationally recognized statistical rating organization” as defined in Section 3(a)(62) of the Exchange Act, selected by the Company (as certified by a resolution of its Board of Directors) as a replacement agency for Fitch, Moody’s, or S&P, or all of them, as the case may be.
“Redemption Date” has the meaning given in Section 5.01.
“Routes” means the routes for which the Company or, if applicable, a Subsidiary holds or hereafter acquires the requisite authority to operate foreign air transportation pursuant to Title 49 including, without limitation, applicable frequencies, exemption and certificate authorities, fifth-freedom rights and “behind/beyond rights”, whether or not utilized by the Company or such Subsidiary.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and its successors.
“Significant Subsidiary” means, at any date of determination, any of the Company’s Subsidiaries that, together with its Subsidiaries, (i) for the Company’s most recently completed four full fiscal quarters for which consolidated financial statements have been filed with the Commission, accounted for more than 10.0% of the consolidated revenues of the Company and its Subsidiaries or (ii) as of the end of the Company’s most recent fiscal quarter for which consolidated financial statements have been filed with the Commission, was the owner of more than 10.0% of the consolidated assets of the Company and its Subsidiaries.
6
“SkyMiles Group” means each Person (other than the Company) that is a Subsidiary of the Company, is consolidated with the Company in accordance with GAAP, or in which the Company directly or indirectly owns or controls Equity Interests or the economic benefit thereof (including through any trust, special share, proxy or similar arrangement), and that: (a) has as its primary business activity holding, owning, licensing or operating assets (including Equity Interests) primarily related to, or used or entered into in connection with, the SkyMiles Program; (b) owns, or is a licensor, sublicensor or exclusive licensee of, Intellectual Property primarily used in or required or necessary to operate the SkyMiles Program; or (c) has as its primary assets Equity Interests in, or obligations of, one or more Persons described in clause (a), clause (b) or this clause (c). For purposes of this definition, references to any Person include its successors by merger, amalgamation, consolidation, continuation or redomiciliation.
“SkyMiles Program” means any loyalty program which is operated, owned or controlled, directly or indirectly by the Company or any of its Subsidiaries, or principally associated with the Company or any of its Subsidiaries, as in effect from time to time, whether under the “SkyMiles” name or otherwise (in each case including any successor program).
“Slot” means each FAA Slot and each Foreign Slot.
“Title 49” means Title 49 of the U.S. Code, which, among other things, recodified and replaced the U.S. Federal Aviation Act of 1958, and the rules and regulations promulgated pursuant thereto or any subsequent legislation that amends, supplements or supersedes such provisions.
“Trade Secrets” means all confidential or proprietary information, trade secrets (as defined under the Uniform Trade Secrets Act or the federal Defend Trade Secrets Act of 2016) and know-how, which may include without limitation all inventions (whether or not patentable), ideas, discoveries, invention disclosures, methods, methodologies, processes, designs, algorithms, source code, customer lists and data, databases, compilations, collections of data, practices, processes, specifications, techniques, improvements, prototypes, devices, test procedures, flow diagrams, research and development, and formulas.
“Trademarks” means all trademarks, service marks, trade names, business names, corporate names and other source or business identifiers, trade dress, look and feel, product and service names, logos, brand names, designs, slogans, common law trademarks and service marks, 800 numbers, domain names, URLs, social media usernames, handles, hashtags and account names, symbols, emblems, insignia and other distinctive identification and indicia of source of origin, whether or not registered, including all common law rights thereto, and all applications, renewals, extensions and registrations therefor, and all goodwill associated with or related to any of the foregoing or the business connected with the use of, and symbolized by, the foregoing.
“Treasury Rate” means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)—H.15” (or any successor designation or
7
publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Par Call Date (the “Remaining Life”); (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields–one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life–and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If on the third Business Day preceding the redemption date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
“Voting Stock” of any specified person as of any date means the capital stock of such person that is at the time entitled to vote generally in the election of the Board of Directors of such person.
SECTION 1.02. Base Indenture. The changes, modifications and supplements to the Base Indenture effected by this Seventh Supplemental Indenture shall be applicable only with respect to, and govern the terms of, the Notes and shall not apply to any other series of Securities that may be issued under the Base Indenture unless a supplemental indenture with respect to such other series of Securities specifically incorporates such changes, modifications and supplements.
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ARTICLE TWO
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.01. Description and Principal Amount. There is hereby authorized and established a series of Securities under the Indenture, designated as the “5.500% Notes due 2029,” which is not limited in aggregate principal amount. The aggregate principal amount of Notes to be issued shall be as set forth in any Company Order for the authentication and delivery of the Notes, pursuant to Section 2.04 of the Base Indenture.
SECTION 2.02. Maturity. The maturity date of principal of the Notes is November 6, 2029. If the maturity date is not a Business Day, the Company will make the required payment on the following Business Day with the same force and effect as if made on such maturity date and, unless the Company defaults on the payment, no interest will accrue for the period after such maturity date.
SECTION 2.03. Additional Issues. The Company may from time to time, without notice to or the consent of the holders of the Notes, create and issue additional Notes. Any such additional Notes will rank equally in right of payment with the Notes and will have the same interest rate, maturity date and other terms as the Notes herein provided for, except for the issue date, the public offering price, the payment of interest accruing prior to the issue date or except for the first payment of interest following the issue date of such additional Notes. Any such additional Notes, together with the Notes herein provided for, will constitute a single series of Securities under the Indenture. Any additional Notes may be issued by or pursuant to a supplement to the Indenture.
SECTION 2.04. Payment. Principal of, premium, if any, and interest on the Notes shall be payable in U.S. dollars.
SECTION 2.05. Global Notes. Upon their original issuance, the Notes will be represented by one or more Global Securities registered in the name of Cede & Co., the nominee of DTC. The Company will issue the Notes in denominations of $2,000 and integral multiples of $1,000 in excess thereof and will deposit the Global Securities with DTC or its custodian and register the Global Securities in the name of Cede & Co.
SECTION 2.06. Interest. The Notes will bear interest (computed on the basis of a 360-day year consisting of twelve 30-day months) from their date of issuance at the rate of 5.500% per annum, payable semi-annually; interest payable on each interest payment date will include interest accrued from November 6, 2026, or from the most recent interest payment date to which interest has been paid or duly provided for; the interest payment dates on which such interest shall be payable are May 6 and November 6 of each year, commencing on May 6, 2027; and the record date for the interest payable on any interest payment date is the close of business on April 22 or October 23, as the case may be, next preceding the relevant interest payment date. If any interest payment date falls on a day that is not a Business Day, the Company will make the required payment on the following Business Day with the same force and effect as if made on such interest payment date and, unless the Company defaults on the payment, no interest will accrue for the period after such interest payment date.
9
SECTION 2.07. Authorized Denominations. The Notes shall be issuable in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
SECTION 2.08. Redemption. The Notes are subject to redemption at the option of the Company as described in Article Five hereof.
SECTION 2.09. Appointment of Agents. The Trustee will initially be the Security registrar and Paying Agent for the Notes.
ARTICLE THREE
COVENANTS OF THE COMPANY
SECTION 3.01. Limitations on Liens.
(a) The Company will not, and will not permit any Significant Subsidiary to, at any time subject any Covered Property to any Lien to secure any Indebtedness or Capital Lease, unless the Notes are expressly secured equally and ratably with any such Indebtedness or Capital Lease so secured, including any guarantee thereof, so long as any such Indebtedness or Capital Lease shall be so secured, and the Company covenants that if and when any such Lien is created, the Notes will be so secured thereby; provided, that, the foregoing shall not apply to:
(1) (A) Liens on Covered Property outstanding on the Issue Date securing Indebtedness or Capital Leases outstanding on the Issue Date (and as in effect on the Issue Date) and (B) Liens on Covered Property incurred after the Issue Date pursuant to the terms of any Indebtedness or Capital Leases outstanding on the Issue Date (and as in effect on the Issue Date);
(2) any Lien on any Covered Property (A) existing at the time of acquisition of such Covered Property or the entity owning such Covered Property (including acquisition through merger or consolidation), or (B) given to secure the payment of all or any part of the purchase, lease or acquisition thereof or the cost of construction, repair, refurbishment, modification or improvement of Covered Property or any real or personal property leased to the Company or any of its Subsidiaries or any Indebtedness or Capital Lease incurred prior thereto, at the time of, or within 180 days after, the completion of the acquisition, construction, repair, refurbishment, modification or improvement of the relevant Covered Property or any real or personal property leased to the Company or any of its Subsidiaries for the purpose of financing all or part of the purchase, lease or acquisition thereof or the cost of construction, repair, refurbishment, modification or improvement;
(3) Liens by a Subsidiary as security for Indebtedness or Capital Lease owed to the Company or any Subsidiary;
(4) a banker’s lien or right of offset of the holder of such Indebtedness in favor of any lender of moneys or holder of commercial paper of the Company or any Subsidiary in the ordinary course of business on moneys of the Company or such Subsidiary deposited with such lender or holder in the ordinary course of business;
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(5) Liens in favor of credit card processors securing obligations in connection with credit card processing services incurred in the ordinary course of business and consistent with past practices;
(6) any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in the foregoing clauses (1) through (5) in connection with the refinancing, amendment, restructuring or other modification of Indebtedness or Capital Lease of the Company and its Subsidiaries secured by such Lien; and
(7) other Liens not permitted by any of the foregoing clauses (1) through (6) on any Covered Property, now owned or hereafter acquired; provided, that, no such Liens shall be incurred pursuant to this subsection (7) if the aggregate principal amount of outstanding Indebtedness (without duplication for any guarantee of such Indebtedness) and Capital Leases secured by Liens incurred pursuant to this subsection (7) subsequent to the Issue Date, including the Lien proposed to be incurred, shall exceed 10% of Consolidated Tangible Assets after giving effect to such incurrence and the use of proceeds of such Indebtedness or Capital Leases.
(b) Any Lien that is granted to secure the Notes in accordance with this Section 3.01 shall be automatically released and discharged at the same time as the release (other than through the exercise of remedies with respect thereto) of each Lien that gave rise to such obligation to secure the Notes.
ARTICLE FOUR
EVENTS OF DEFAULT
SECTION 4.01. Events of Default. The term “Event of Default” as used in the Indenture with respect to the Notes shall include the following described event in addition to those set forth in Section 4.01 of the Base Indenture: default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness of the Company or a Subsidiary (or the payment of which is guaranteed by the Company or a Subsidiary), whether such Indebtedness or guarantee now exists, or is created after the Issue Date of the Notes, if that default:
(a) is caused by a failure to pay principal of such Indebtedness at its stated final maturity (a “Payment Default”); or
(b) results in the acceleration of such Indebtedness prior to its express maturity,
and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $250,000,000 or more.
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ARTICLE FIVE
REDEMPTION AND REPURCHASE OF THE NOTES
SECTION 5.01. Optional Redemption by Company.
(a) The Notes may be redeemed, in whole or in part, at any time (the date of such redemption, a “Redemption Date”) at the Company’s option. If the Notes are redeemed at any time prior to the Par Call Date, the Notes will be redeemed at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1) (a) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes being redeemed discounted to the redemption date (assuming the Notes being redeemed matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 15 basis points, less (b) interest accrued to, but excluding, the date of redemption; and
(2) 100% of the principal amount of the Notes being redeemed;
plus, in either case, accrued and unpaid interest on the principal amount of the Notes being redeemed to, but excluding, the Redemption Date.
If the Notes are redeemed at any time on or after the Par Call Date, the Notes will be redeemed at a redemption price equal to 100% of the principal amount of the Notes being redeemed, plus accrued and unpaid interest on the Notes being redeemed to, but excluding, the Redemption Date.
Any redemption pursuant to this Section 5.01(a) is subject to the right of holders of record on the relevant record date to receive interest due on an interest payment date that is on or before the Redemption Date.
(b) The reference in the first sentence of Section 14.02 of the Base Indenture to “15 days” is hereby replaced with “10 days,” solely with respect to the Notes.
(c) Any redemption pursuant to this Article Five may, at the Company’s discretion, be conditioned upon the satisfaction or waiver of one or more conditions, including (1) the occurrence of a Change of Control or (2) the closing of another transaction, including a sale of securities or other financing, in each case as specified in the notice in reasonable detail. If such redemption is subject to satisfaction or waiver of one or more conditions, such notice of conditional redemption shall state that, in the Company’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied or waived, or such redemption may not occur and such notice of conditional redemption may be rescinded in the event that any or all such conditions shall not have been satisfied or waived by the redemption date, or by the redemption date so delayed. A notice of conditional redemption will be of no effect unless all conditions to the redemption have occurred on or before the redemption date or have been waived by the Company on or before the redemption date. The Company will provide notice to the holders of the Notes subject to the notice of conditional redemption of the satisfaction of all conditions as soon as
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practicable following occurrence of the conditions. The Company will provide notice to the holders of the Notes subject to the notice of conditional redemption of any waiver of a condition or failure to meet such conditions no later than the redemption date. The Company will provide notice to the Trustee in no event less than one (1) Business Day prior to the redemption date if any such redemption has been rescinded or delayed. Upon the Trustee’s receipt of the notice of conditional redemption and as specified in such notice, (i) the notice of conditional redemption shall be automatically rescinded and the Company will have no obligation to redeem the Notes subject to the notice of conditional redemption or (ii) the redemption date shall automatically be delayed until the new redemption date specified in such notice, as applicable. Promptly after receipt of such notice but in no event less than one (1) Business Day prior to the redemption date, the Trustee shall provide a copy thereof to DTC in order for such notice to be given to each holder of the Notes in accordance with applicable procedures of DTC.
(d) Solely with respect to the Notes, the first and second sentences of the last paragraph in Section 14.02 of the Base Indenture are hereby replaced with “If fewer than all of the Notes are to be redeemed at any time, selection of Notes for redemption will be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Notes are listed or, if such Notes are not listed on a national securities exchange, on a pro rata basis, by lot, or such other method as the Trustee deems appropriate and fair (or such other method as DTC may require); provided, however, that the Notes will be redeemed only in the minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.”
(e) Notice of any redemption of the Notes shall be given in the manner and otherwise in accordance with the provisions of Section 14.02 of the Base Indenture, as amended in Section 5.01(b), (c) and (d). If the Company has given notice of redemption as provided in the Base Indenture, as amended in Section 5.01(b), (c) and (d), and funds for the redemption of any Notes called for redemption have been made available on the redemption date referred to in that notice, such Notes will cease to bear interest on such redemption date. Any interest accrued to such redemption date will be paid as specified in such notice.
SECTION 5.02. No Sinking Fund. The Notes are not entitled to the benefit of any sinking fund.
SECTION 5.03. Offer to Repurchase Upon a Change of Control Triggering Event.
(a) Upon the occurrence of a Change of Control Triggering Event, unless the Company has otherwise exercised its right to redeem the Notes, each holder of Notes will have the right to require the Company to purchase all or a portion of such holder’s Notes pursuant to the offer described below (the “Change of Control Offer”), at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to, but excluding, the repurchase date, subject to the rights of holders of Notes on the relevant record date to receive interest due on the relevant interest payment date.
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(b) Within 30 days following the date upon which the Change of Control Triggering Event occurred, unless the Company has otherwise exercised its right to redeem the Notes, the Company will be required to deliver a notice to each holder of the unredeemed Notes, with a copy to the Trustee, which notice will govern the terms of the Change of Control Offer; provided that, at the Company’s option, the Company may deliver such notice prior to any Change of Control but after the public announcement of the Change of Control. Such notice will state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date such notice is sent, other than as may be required by law (the “Change of Control Payment Date”). The notice, if sent prior to the date of consummation of the Change of Control, will state that the Change of Control Offer is conditioned on the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date. Holders of Notes electing to have Notes purchased pursuant to a Change of Control Offer must surrender their Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified in the notice, or transfer their Notes to the Paying Agent by book-entry transfer pursuant to the applicable procedures of DTC, before the close of business on the third Business Day prior to the Change of Control Payment Date.
(c) The Company will not be required to make a Change of Control Offer if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Company and such third party purchases all Notes properly tendered and not withdrawn under its offer.
(d) If holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw the Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company, purchases all of such Notes validly tendered and not withdrawn by such holders, the Company will have the right, upon not less than 20 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a redemption price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the date of redemption (subject to the right of holders of record on the relevant record date to receive interest on the relevant interest payment date). The provisions of Article Fourteen of the Base Indenture shall apply to any redemption pursuant to this clause (d).
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with the Change of Control Offer provisions of the Notes, the Company will comply with those securities laws and regulations and will not be deemed to have breached the Company’s obligations under the change of control offer provisions of the Notes by virtue of any such conflict.
SECTION 5.04. Payment If Date Fixed for Redemption or Repayment Is Not a Business Day. If any date fixed for redemption or repayment of any Notes pursuant to this Article Five is not a Business Day, the Company will make the required payment on the following Business Day with the same force and effect as if made on the date fixed for redemption or repayment and, unless the Company defaults on the payment, no interest shall accrue for the period after such date.
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ARTICLE SIX
FORM OF NOTES
SECTION 6.01. Form of Notes. The Notes and the Trustee’s Certificate of Authentication to be endorsed thereon are to be substantially in the form set forth in Exhibit A hereto.
ARTICLE SEVEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 7.01. Amendments, Supplements and Waivers. The Company and the Trustee may amend, supplement or waive any covenant or provision set forth in this Seventh Supplemental Indenture or the Notes as provided in Article Nine of the Base Indenture.
ARTICLE EIGHT
MISCELLANEOUS
SECTION 8.01. Ratification of Indenture. The Indenture, as supplemented by this Seventh Supplemental Indenture, is in all respects ratified and confirmed, and this Seventh Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided.
SECTION 8.02. Conflict with Base Indenture. If any provision of this Seventh Supplemental Indenture limits, qualifies or conflicts with a provision of the Base Indenture, the provision hereof shall control. If any provision of this Seventh Supplemental Indenture modifies or excludes any provision of the Base Indenture that may be so modified or excluded, the provision hereof shall be deemed to apply to the Indenture as so modified or to be excluded, as the case may be.
SECTION 8.03. Trustee Not Responsible for Recitals. The recitals herein contained are made by the Company and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this Seventh Supplemental Indenture.
SECTION 8.04. Governing Law. This Seventh Supplemental Indenture and each Note shall be construed in accordance with and governed by the internal law of the State of New York without giving effect to applicable principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby.
SECTION 8.05. Separability. In case any one or more of the provisions contained in this Seventh Supplemental Indenture or in the Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Seventh Supplemental Indenture or of the Notes, but this Seventh Supplemental Indenture and the Notes shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
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SECTION 8.06. Counterparts. This Seventh Supplemental Indenture may be executed in any number of counterparts each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Seventh Supplemental Indenture and of signature pages by facsimile or electronic format (i.e., “pdf” or “tif”’) transmission shall constitute effective execution and delivery of this Seventh Supplemental Indenture as to the parties hereto and may be used in lieu of the original Seventh Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or electronic format (i.e., “pdf” or “tif”’) shall be deemed to be their original signatures for all purposes. Each electronic signature or faxed, scanned or photocopied manual signature shall for all purposes have the same validity, legal effect and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned or photocopied manual signature, or other electronic signature, of any party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Seventh Supplemental Indenture to be duly executed as of the date first written above.
| DELTA AIR LINES, INC. | ||
| By: | /s/ Kenneth W. Morge II | |
| Name: |
Kenneth W. Morge II | |
| Title: |
SVP – Finance & Treasurer | |
[Signature Page to Delta Air Lines, Inc. Seventh Supplemental Indenture]
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ Wally Jones | |
| Name: |
Wally Jones | |
| Title: |
Vice President | |
[Signature Page to Delta Air Lines, Inc. Seventh Supplemental Indenture]
Exhibit A
Exhibit A
(FACE OF NOTE)
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.10 OF THE BASE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06 OF THE BASE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.09 OF THE BASE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-1
DELTA AIR LINES, INC.
5.500% Notes due 2029
CUSIP NO. 247361 A40
ISIN NO. US247361A402
| No. R-[ ] | $[ ] |
DELTA AIR LINES, INC., a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company”, which term includes any successor under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [[ ] ($ )] on November 6, 2029 at the office or agency of the Company in the continental United States designated for such purpose by the Company (on the date hereof, the principal Corporate Trust Office of the Trustee mentioned below, located at U.S. Bank, Atlanta Concourse 2, 2 Concourse Pkwy NE Ste 800, Atlanta, GA 30328-5588), in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest on said principal sum semi-annually on May 6 and November 6 of each year, commencing May 6, 2027 at said office or agency (except as provided below), in like coin or currency, at the rate per annum specified in the title hereof, such interest to accrue from the date of this Note until payment of said principal sum has been made or duly provided for. The interest so payable, and punctually paid or duly provided for, on any May 6 or November 6 will, except as provided in the Indenture, dated as of March 6, 2017 (the “Base Indenture”), as supplemented by the Seventh Supplemental Indenture, dated as of November 6, 2026 (the “Seventh Supplemental Indenture,” and as so supplemented, the “Indenture”; capitalized terms used and not defined herein shall have the meanings ascribed to such terms in the Indenture), duly executed and delivered by the Company to U.S. Bank Trust Company, National Association, a national banking association, as trustee (herein called the “Trustee”), be paid to the person in whose name this Note is registered at the close of business on the next preceding April 22 or October 23, respectively, whether or not a Business Day, and may, at the option of the Company, be paid by check mailed to the registered address of such person. Any such interest which is payable, but is not so punctually paid or duly provided for, shall forthwith cease to be payable to the registered holder on such record date and shall be paid to the person in whose name this Note is registered at the close of business on a subsequent record date (which shall be not less than five Business Days prior to the date of payment of such defaulted interest) established by notice sent by or on behalf of the Company to the holders of the Notes not less than 15 days preceding such subsequent record date.
This Note is one of the series of Securities of the Company issued pursuant to the Indenture designated as the 5.500% Notes due 2029 (herein called the “Notes”), unlimited in aggregate principal amount.
Upon due presentment for exchange or registration of transfer of this Note at the office or agency of the Company in the continental United States, designated for such purpose by the Company (on the date hereof, the principal Corporate Trust Office of the Trustee, located at U.S. Bank, Atlanta Concourse 2, 2 Concourse Pkwy NE Ste 800, Atlanta, GA 30328-5588), duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Company and the Trustee, duly executed by the holder thereof or such holder’s attorney duly authorized in writing, a new Note or Notes of authorized denominations for a like aggregate principal amount and stated maturity will be issued to the transferee in exchange therefor, subject to the limitations provided in the Indenture.
No service charge shall be made for any such exchange or registration of transfer, but the Company or the Securities registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been manually executed by or on behalf of the Trustee under the Indenture, this Note shall not be entitled to any benefits under the Indenture, or be valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, DELTA AIR LINES, INC. has caused this Note to be duly executed.
| Dated: | DELTA AIR LINES, INC. | |||||
| By: |
||||||
| Name: | ||||||
| Title: | ||||||
[Signature Page to Delta Air Lines, Inc. 5.500% Global Note due 2029]
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: | ||
| Authorized Officer | ||
[Signature Page to Delta Air Lines, Inc. 5.500% Global Note due 2029]
REVERSE OF NOTE
This Note is one of the duly authorized issue of debt securities (hereinafter called the “Securities”) of the Company, of the series specified on the face hereof, all issued or to be issued under and pursuant to the Indenture, to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the rights and limitations of rights, obligations, duties and immunities thereunder of the Trustee, and any agent of the Trustee, any Paying Agent, the Company and the holders of the Securities and the terms upon which the Securities are issued and are to be authenticated and delivered. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
The Indenture permits, with certain exceptions as therein provided, the Company and the Trustee to enter into supplemental indentures to the Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of modifying in any manner the rights of the holders of the Securities of each series under the Indenture with the consent of the holders of not less than a majority in principal amount of the Securities at the time outstanding of each series to be affected thereby on behalf of the holders of all Securities of such series. The Indenture also permits the holders of a majority in principal amount of the Securities at the time outstanding of each series on behalf of the holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults and their consequences with respect to such series under the Indenture. Any such consent or waiver by the holder of this Note shall be conclusive and binding upon such holder and upon all future holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note or such other Note.
Registrar and Paying Agent
The Company shall maintain in the continental United States, an office or agency where Notes may be surrendered for registration of transfer or exchange and an office or agency where Notes may be presented for payment or for exchange. The Company has initially appointed the Trustee, U.S. Bank Trust Company, National Association, as its Security registrar and Paying Agent. The Company reserves the right at any time to vary or terminate the appointment of any Paying Agent or Security registrar, to appoint additional or other Paying Agents or other Security registrars and to approve any change in the office through which any Paying Agent or Security registrar acts.
Optional Redemption of the Notes
The Notes may be redeemed, in whole or in part, at any time (the date of such redemption, a “Redemption Date”) at the Company’s option. If the Notes are redeemed at any time prior to the Par Call Date, the Notes will be redeemed at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1) (a) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes being redeemed discounted to the redemption date (assuming the Notes being redeemed matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 15 basis points, less (b) interest accrued to, but excluding, the date of redemption; and
(2) 100% of the principal amount of the Notes being redeemed;
plus, in either case, accrued and unpaid interest on the principal amount of the Notes being redeemed to, but excluding, the applicable Redemption Date.
If the Notes are redeemed at any time on or after the Par Call Date, the Notes will be redeemed at a redemption price equal to 100% of the principal amount of the Notes being redeemed, plus accrued and unpaid interest on the Notes being redeemed to, but excluding, the applicable Redemption Date.
A-5
Notice of any redemption of the Notes shall be given in the manner and otherwise in accordance with the provisions of Section 14.02 of the Base Indenture, as amended by Section 5.01(b) of the Seventh Supplemental Indenture. If the Company has given notice of redemption as provided in the Base Indenture, as amended by Section 5.01(b) of the Seventh Supplemental Indenture, and funds for the redemption of any Notes called for redemption have been made available on the Redemption Date referred to in that notice, such Notes will cease to bear interest on such Redemption Date. Any interest accrued to the Redemption Date will be paid as specified in such notice.
Change of Control Triggering Event
Upon the occurrence of a Change of Control Triggering Event, the Company will be obligated to offer to repurchase this Note in the manner and subject to the conditions provided in the Indenture.
Additional Issues
The Company may from time to time, without notice to or the consent of the holders of the Notes, create and issue additional Notes. Any such additional Notes will rank equally in right of payment with the Notes and will have the same interest rate, maturity date and other terms as the Notes herein provided for, except for the issue date, the public offering price, the payment of interest accruing prior to the issue date or except for the first payment of interest following the issue date of such additional Notes. Any such additional Notes, together with the Notes herein provided for, will constitute a single series of Securities under the Indenture. Any additional Notes may be issued by or pursuant to a supplement to the Indenture.
Transfer and Exchange
The transfer of the Notes may be registered and Notes may be exchanged as provided in the Indenture.
Sinking Fund
The Notes will not be subject to any sinking fund.
Default
If an Event of Default with respect to the Notes shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner, with the effect and subject to the conditions provided in the Indenture.
Miscellaneous
The registered holder of a Note may be treated as its owner for all purposes.
Unless otherwise required by mandatory provisions of escheat or abandoned or unclaimed property laws, any moneys deposited with the Trustee or any Paying Agent, or then held by the Company, for the payment of principal of, premium, if any, or interest on this Note that remains unclaimed for two years after the date upon which such payment shall have become due, shall be repaid to the Company by the Trustee or by such Paying Agent on demand; or, if then held by the Company, shall be discharged from such trust. After that time, the holder of this Note shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only to the Company for any payment to which such holder may be entitled to collect.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, and any premium and any interest on, this Note at the place, rate and respective times and in the coin or currency herein and in the Indenture prescribed.
As provided in the Indenture and subject to the satisfaction of certain conditions therein set forth, including the deposit of certain trust funds in trust, at the Company’s option, either the Company shall be deemed to have paid and discharged the entire indebtedness represented by, and the obligations under, the Notes and to have satisfied all the obligations (with certain exceptions) under the Indenture relating to the Notes or the Company shall cease to be under any obligation to comply with any term, provision or condition of certain restrictive covenants or provisions with respect to the Notes.
A-6
The Notes are issuable in registered form without coupons in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. Notes may be exchanged for a like aggregate principal amount and stated maturity of Notes of other authorized denominations at the office or agency of the Company in the continental United States, designated for such purpose by the Company (on the date hereof, the principal Corporate Trust Office of the Trustee, located at U.S. Bank, Atlanta Concourse 2, 2 Concourse Pkwy NE Ste 800, Atlanta, GA 30328-5588), and in the manner and subject to the limitations provided in the Indenture.
Prior to due presentment for registration of transfer of this Note, the Company, the Trustee, any Paying Agent and any Security registrar shall deem and treat the person in whose name this Note is registered upon the books of the Company on the applicable record date as the absolute owner hereof (whether or not this Note is overdue and notwithstanding any notation of ownership or other writing hereon) for the purpose of receiving payment of or on account of the principal of, premium, if any, and interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any Paying Agent nor any Security registrar shall be affected by any notice to the contrary.
This Note shall be construed in accordance with and governed by the internal law of the State of New York without giving effect to applicable principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby.
A-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 5.03 of the Seventh Supplemental Indenture, check the box below:
[ ] Section 5.03
If you want to elect to have only part of the Note purchased by the Company pursuant to Section 5.03 of the Seventh Supplemental Indenture, state the amount you elect to have purchased:
$_______________
Date: ____________________
| Your Signature: | ||
| (Sign exactly as your name appears on the face of this Note) |
| Tax Identification No.: | ||
Signature Guarantee*: _________________________
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
A-8
Exhibit 5.1
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Kilpatrick Townsend & Stockton LLP ktslaw.com |
Suite 2800, 1100 Peachtree Street NE Atlanta, GA 30309-4528 | ||||
November 6, 2026
Delta Air Lines, Inc.
1030 Delta Boulevard
Atlanta, Georgia 30354
| Re: | Offering Pursuant to Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to Delta Air Lines, Inc., a Delaware corporation (“Delta”), in connection with the public offering by Delta of $500,000,000 aggregate principal amount of its 5.500% Notes due 2029 (the “Notes”). The Notes will be issued pursuant to an indenture dated as of March 6, 2017 (the “Base Indenture”) by and between Delta, as issuer, and U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), as trustee (the “Trustee”), as amended by a Seventh Supplemental Indenture dated the date hereof (together with the Base Indenture, the “Indenture”). The offer and sale of the Notes have been registered pursuant to Delta’s Registration Statement on Form S-3 (File No. 333-297387) (the “Registration Statement”) filed on July 10, 2026 with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “1933 Act”), including the base prospectus therein, as amended and supplemented by the prospectus supplement, dated November 4, 2026, relating to the Notes filed on November 5, 2026 with the Commission pursuant to Rule 424(b) under the 1933 Act (the “Prospectus”). Delta has entered into an Underwriting Agreement dated November 4, 2026 with BofA Securities, Inc., Citigroup Global Markets Inc., Deutsche Bank Securities Inc., Goldman Sachs & Co. LLC, and Standard Chartered Bank, for themselves and as representatives of the several other underwriters named therein (the “Underwriting Agreement”), relating to the sale of the Notes.
In connection with this opinion, we have examined and reviewed: (i) the Registration Statement and the Prospectus; (ii) an executed copy of the Underwriting Agreement; (iii) an executed copy of the Base Indenture; (iv) an executed copy of the Seventh Supplemental Indenture; (v) the global note or notes representing the Notes, in the form executed by Delta and delivered to the Trustee for authentication; (vi) a certified copy of the Amended and Restated Certificate of Incorporation of Delta, including a certified copy of the Certificate of Amendment thereto; (vii) a certified copy of the Bylaws of Delta; and (viii) resolutions and minutes of the board of directors of Delta, and committees thereof, relating to the Notes and the Indenture. We have also examined originals, or copies certified or otherwise identified to our satisfaction, of such other records, certificates of corporate officers and government officials, instruments and other documents, as we have deemed necessary or appropriate for purposes of this opinion. As to any facts material to the opinions expressed herein, we have relied upon statements and representations of officers and other representatives of Delta and others, without independent verification of their accuracy.
Delta Air Lines, Inc.
November 6, 2026
Page 2
In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as certified, conformed, facsimile, electronic or photostatic copies. In making our examination of documents executed or to be executed, we have assumed that the parties thereto (other than Delta) had or will have the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof on such parties.
In rendering our opinions below, we have also assumed that: (i) the Trustee is and has been duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and is duly qualified to engage in the activities contemplated by the Indenture; (ii) the Indenture has been duly authorized, executed and delivered by, and constitutes the legal, valid and binding obligation of, the Trustee, enforceable against the Trustee in accordance with its terms; (iii) the Trustee is in compliance, generally and with respect to acting as a trustee under the Indenture, with all applicable laws and regulations; (iv) the Trustee had and has the requisite organizational and legal power and authority to perform its obligations under the Indenture; (v) other than by the First through Seventh Supplemental Indentures thereto, the Base Indenture has not been amended, supplemented or otherwise modified, and no provision thereof has been waived, in each case in any respect relevant to the Notes, whether in writing, orally or by course of dealing; and (vi) the Notes will be duly authenticated by the Trustee in the manner provided in the Indenture.
Based on the foregoing and subject to the assumptions, qualifications and limitations set forth below, we are of the opinion that the Notes, when executed by Delta and authenticated by the Trustee in accordance with the provisions of the Indenture and delivered and paid for as provided in the Underwriting Agreement, will be legal, valid and binding obligations of Delta, enforceable against Delta in accordance with their terms.
We are opining herein as to the effect on the subject transaction only of the federal laws of the United States, the General Corporation Law of the State of Delaware and the laws of the State of New York. We express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction.
Our examination of matters of law in connection with the opinions expressed herein has been limited to the laws referred to in the immediately preceding paragraph, as currently in effect, in each case that in our experience are normally applicable to transactions of the type contemplated by the Underwriting Agreement without regard to the particular nature of the business conducted by Delta. We express no opinion with respect to compliance with any law, rule or regulation that as a matter of customary practice is understood to be covered only when an opinion refers to it expressly. Without limiting the generality of the foregoing, we express no opinion on local or municipal law, antitrust, unfair competition, environmental, land use, antifraud, tax, pension, labor, employee benefit, health care, health and safety, domestic relations, consumer protection, privacy, insolvency, fraudulent transfer, antiterrorism, money laundering, fiduciary duties, public policy, public utility, racketeering, criminal and civil forfeiture, foreign corrupt practices or foreign asset or trading controls or any judicial decisions, administrative determination or ruling or executive order to the extent that they deal with any of the foregoing. Furthermore, we express no opinion as to aviation laws (including without limitation Title 49 of the U.S. Code, the Cape Town Treaty or any other laws, rules, or regulations of the United States of America or promulgated under the Cape Town Treaty relating to the sale, acquisition, ownership, registration, leasing, financing, mortgaging, use or operation of any aircraft, aircraft engines or any part thereof).
Delta Air Lines, Inc.
November 6, 2026
Page 3
The opinion set forth above is subject to the following further assumptions, qualifications and limitations:
(a) Our opinion as to validity and enforceability is subject to: (i) applicable bankruptcy, insolvency, reorganization, receivership, fraudulent transfer, voidable preference, moratorium or similar laws, and related judicial doctrines, from time to time in effect affecting creditors’ rights and remedies generally; and (ii) general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness, concepts of impracticability or impossibility of performance and unconscionability, equitable defenses and limits on the availability of equitable remedies), whether such principles are considered in a proceeding at law or in equity.
(b) We express no opinion as to the validity or enforceability of any provision in the Indenture or the Notes (together, the “Covered Documents”): (i) relating to indemnification, contribution or exculpation in connection with violations of any securities laws or statutory duties or public policy, or in connection with willful, reckless or unlawful acts or gross negligence of the indemnified or exculpated party or the party receiving contribution; (ii) relating to exculpation of any party in connection with its own negligence that a court would determine in the circumstances under applicable law to be unfair or insufficiently explicit; (iii) relating to choice of governing law, except for provisions of the Covered Documents specifying the law of the State of New York as the law governing the Covered Documents insofar as such provisions rely on General Obligations Law § 5-1401 as applied by a New York court where (x) no due process, comity or other constitutional limits apply and (y) the Uniform Commercial Code does not apply; (iv) specifying that provisions thereof may be waived only in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created that modifies any provision of such documents; (v) giving any person or entity the power to exercise rights or accelerate obligations without any notice to Delta; or (vi) providing for the payment of any premium (including any make-whole or other premium payable upon an optional redemption or upon a repurchase of the Notes following a change of control), or for any increase in the rate of interest or for interest on overdue amounts upon delinquency in payment or the occurrence of a default, in each case to the extent such provision is determined to constitute a penalty, liquidated damages or an unenforceable forfeiture.
(c) Our opinion as to validity or enforceability is subject to the effect of generally applicable rules of law that: (i) limit the availability of a remedy under certain circumstances when another remedy has been elected; (ii) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange; or (iii) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs, or require mitigation of damages.
(d) We express no opinion as to the enforceability of: (i) any purported waiver, release, variation, disclaimer, consent or other agreement to similar effect (all of the foregoing, collectively, a “Waiver”) by Delta to the extent limited by applicable law (including judicial decisions), or to the extent that such a Waiver applies to a right, claim, duty, defense or ground for discharge otherwise existing or occurring as a matter of law (including judicial decisions), except to the extent that such a Waiver is effective under and is not prohibited by or void or invalid under applicable law (including judicial decisions); or (ii) any Waiver insofar as it relates to causes or circumstances that would operate as a discharge or release of, or defense available to, any issuer thereunder as a matter of law (including judicial decisions), except to the extent that such a Waiver is effective under and is not prohibited by or void or invalid under applicable law (including judicial decisions).
Delta Air Lines, Inc.
November 6, 2026
Page 4
(e) We express no opinion as to the application of, and our opinion above is subject to the effect, if any, of, any applicable fraudulent conveyance, fraudulent transfer, fraudulent obligation or preferential transfer law, any applicable bulk sale or transfer law and any law governing the liquidation or dissolution of, or the distribution of assets of, any person or entity (including, without limitation, any law relating to the payment of dividends or other distributions on capital stock or the repurchase of capital stock).
(f) We express no opinion as to the subject matter jurisdiction of any United States federal court to adjudicate any suit relating to the Covered Documents which may be brought by any person who is not a citizen of the United States or organized under the laws thereof or of one of the states thereof.
(g) We express no opinion as to the possible unenforceability of provisions that determinations by a party or a party’s designee are conclusive.
This opinion has been prepared for your use in connection with the offer and sale of the Notes pursuant to the registration requirements of the 1933 Act. We consent to your filing this opinion as an exhibit to Delta’s Current Report on Form 8-K, filed November 6, 2026, which is incorporated by reference in the Registration Statement, and to the reference to our firm contained under the heading “Legal Matters” in the Prospectus. In giving this consent, we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the 1933 Act or the rules and regulations thereunder.
Delta Air Lines, Inc.
November 6, 2026
Page 5
In giving the opinions set forth above we have relied upon the opinion letter, dated as of the date hereof, of Alan T. Rosselot, Esq., Associate General Counsel of Delta, as to all matters covered thereby. Accordingly, the opinions set forth above are subject to the limitations, assumptions and qualifications set forth in such other opinion letter.
Very truly yours,
/s/ KILPATRICK TOWNSEND & STOCKTON LLP
Exhibit 5.2
| Delta Air Lines, Inc. 1030 Delta Boulevard Department 981 Atlanta, GA 30354 |
November 6, 2026
Delta Air Lines, Inc.
1030 Delta Boulevard
Atlanta, Georgia 30354
| Re: | Delta Air Lines, Inc. |
5.500% Notes Due 2029
Ladies and Gentlemen:
I am Associate General Counsel of Delta Air Lines, Inc., a Delaware corporation (the “Company”), and have acted as such in connection with the Registration Statement on Form S-3 (Registration No. 333-297387) (the “Registration Statement”) filed with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “1933 Act”), and in connection with the issuance and sale by the Company today of $500,000,000 aggregate principal amount of its 5.500% Notes due 2029 (the “Notes”) pursuant to the Underwriting Agreement, dated November 4, 2026 (the “Underwriting Agreement”), by and among the Company, as issuer, and BofA Securities, Inc., Citigroup Global Markets Inc., Deutsche Bank Securities Inc., Goldman Sachs & Co. LLC and Standard Chartered Bank, for themselves and as representatives of the several other underwriters named therein. The Notes will be issued pursuant to an indenture dated as of March 6, 2017 (the “Base Indenture”) by and between the Company, as issuer, and U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), as trustee (the “Trustee”), as amended by a Seventh Supplemental Indenture dated as of the date hereof (the “Seventh Supplemental Indenture”, and together with the Base Indenture, the “Indenture”). As used herein, the term “Prospectus” means the final prospectus supplement relating to the Notes dated November 4, 2026 in the form filed with the SEC on November 5, 2026 pursuant to Rule 424(b) under the 1933 Act.
In so acting, I or other counsel under the general supervision of the General Counsel of the Company have examined the Registration Statement, the Prospectus, the Base Indenture and the Seventh Supplemental Indenture and have also examined and relied upon the representations and warranties contained therein or made pursuant thereto, and on certificates of officers of the Company and of public officials as to factual matters, and upon the originals, or copies certified or otherwise identified to my satisfaction, of such records, documents and other instruments as in my judgment are necessary or advisable to enable me to render the opinions expressed below. In
all such examinations, I have assumed the genuineness of all signatures (other than those on behalf of the Company), the legal capacity of natural persons, the authenticity of all documents submitted to me as originals and the conformity to original documents of all documents submitted to me as certified or copies, and as to certificates and telephonic confirmations given by public officials, I have assumed the same to have been properly given and to be accurate.
Based on the foregoing and subject to the assumptions and qualifications set forth below, I am of the following opinion:
1. The Company is validly existing as a corporation in good standing under the laws of the State of Delaware.
2. The Company has the corporate power and authority under Delaware law to execute, deliver and perform its obligations under the Base Indenture and the Seventh Supplemental Indenture.
3. The Base Indenture, the Seventh Supplemental Indenture and the Notes have been duly authorized, validly executed and delivered by the Company.
The opinions expressed herein are limited in all respects to the General Corporation Law of the State of Delaware, the applicable provisions of the Delaware Constitution, and the reported judicial decisions interpreting these laws, except that I express no opinion with respect to the antitrust, bankruptcy, environmental, securities or tax laws of any jurisdiction, and no opinion is expressed with respect to the laws of any other jurisdiction or any effect which such law may have on the opinions expressed herein.
This opinion letter is limited to the matters stated, and no opinion is implied or may be inferred beyond those opinions expressly stated herein. The opinions expressed herein are rendered only as of the date hereof, and I assume no responsibility to advise you of changes in law, facts, circumstances, events or developments which hereafter may be brought to my attention and which may alter, affect or modify such opinions. In connection with the issuance of the Notes, Kilpatrick Townsend & Stockton LLP and Simpson Thacher & Bartlett LLP may receive a copy of this letter and rely on the opinions set forth herein.
I hereby consent to the filing of this opinion as an exhibit to the Company’s Current Report on Form 8-K filed on the date hereof and incorporated by reference in the Registration Statement and the reference to my name under the caption “Legal Matters” in the Prospectus. In giving such consent, I do not thereby concede that I am within the category of persons whose consent is required under Section 7 of the 1933 Act or the rules and regulations of the SEC thereunder.
| Very truly yours, |
| /s/ Alan T. Rosselot Associate General Counsel |