Exhibit 1(a)
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NORTHWEST AIRLINES, INC., ISSUER
[NORTHWEST AIRLINES CORPORATION, GUARANTOR]
[SENIOR/SENIOR SUBORDINATED DEBT SECURITIES]
[AND]
[WARRANTS TO PURCHASE SENIOR/SENIOR SUBORDINATED DEBT SECURITIES]
UNDERWRITING AGREEMENT
Dated as of: _______, ____
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NORTHWEST AIRLINES, INC., ISSUER
[NORTHWEST AIRLINES CORPORATION, GUARANTOR]
[Senior/Senior Subordinated Debt Securities]
[and]
[Warrants to Purchase Senior/Senior Subordinated Debt Securities]
UNDERWRITING AGREEMENT
____________, ____
[Underwriters]
[Address]
Dear Sirs:
Northwest Airlines, Inc., a Minnesota corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule I hereto [an
aggregate of $___________ principal amount [at maturity] of [Title of Debt
Securities] (the"Notes"), with the guarantee (collectively, the "Guarantees")
endorsed thereon of Northwest Airlines Corporation, a Delaware corporation and
the ultimate parent company of the Company ("NWA Corp.")][and][the Warrants (the
AWarrants@[and, together with the Notes and the Guarantees, the ASecurities@])
to purchase an aggregate of $________ principal amount [at maturity] of [the
Notes][[Title of Debt Securities issuable upon the exercise of the Warrants](the
AWarrant Debt Securities@)]]. [The Notes are to be issued pursuant to an
Indenture dated as of March 1, 1997 (the "Original Indenture") among the
Company, Northwest Airlines Holdings Corporation ("Old NWA Corp"), as guarantor,
and State Street Bank and Trust Company, as trustee (the "Trustee"), as
supplemented by a Supplemental Indenture, dated as of November 20, 1998 among
the Company, as issuer, the Guarantor, Old NWA Corp. and the Trustee (the "First
Supplemental Indenture") and by a Second Supplemental Indenture dated as of
February 25, 1999 (the "Second Supplemental Indenture" and, together with
Original Indenture and the First Supplemental Indenture, the "Indenture") among
the Corporation, the Guarantor, Old NWA Corp. and the Trustee.][The Warrants are
to be issued pursuant to a Warrant Agreement dated as of ________, ____ between
the Company and ___________, as warrant agent (the AWarrant Agent@).] As used
herein, unless the context otherwise requires, the terms "Underwriter", "you" or
"your" shall mean _______________.
[NWA Corp.] [Northwest Airlines Corporation, a Delaware corporation and
the ultimate parent company of the Company (ANWA Corp.@)] and the Company have
filed with the
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Securities and Exchange Commission (the "Commission") shelf registration
statements on Form S-3 (File Nos. 333-41579 and 333-79215) relating to certain
classes of securities (such registration statements, including the exhibits
thereto and the documents filed by NWA Corp. with the Commission pursuant to the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Exchange Act") that are
incorporated by reference therein, as amended at the date hereof, being herein
referred to as the "Registration Statement") and the offering thereof from time
to time in accordance with Rule 415 of the Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder (collectively, the
"Securities Act"). The Registration Statement has been declared effective by the
Commission. A prospectus supplement reflecting the terms of the Notes, the terms
of the offering thereof and the other matters set forth therein, as further
specified in Section 5(c) hereof, will be prepared and filed together with the
base prospectus referred to below pursuant to Rule 424 under the Securities Act
(such prospectus supplement, in the form first filed on or after the date hereof
pursuant to Rule 424, being herein referred to as the "Prospectus Supplement"
and any prospectus supplement relating to the Notes filed prior to the filing of
the Prospectus Supplement being herein referred to as a "Preliminary Prospectus
Supplement"). The base prospectus, dated __________, _____ included in the
Registration Statement relating to offerings of debt securities generally, as
supplemented by the Prospectus Supplement, and including the documents
incorporated by reference therein, is herein called the "Prospectus", except
that, if such base prospectus is amended or supplemented on or prior to the date
on which the Prospectus Supplement is first filed pursuant to Rule 424, the term
"Prospectus" shall refer to such base prospectus as so amended or supplemented
and as supplemented by the Prospectus Supplement, in either case including the
documents that are incorporated by reference therein. Any reference herein to
the terms "amendment" or "supplement" with respect to the Registration
Statement, the Prospectus, any Preliminary Prospectus Supplement or any
preliminary prospectus shall be deemed to refer to and include any documents
filed with the Commission under the Exchange Act after the date hereof, the date
the Prospectus is filed with the Commission, or the date of such Preliminary
Prospectus Supplement or preliminary prospectus, as the case may be, and
incorporated therein by reference pursuant to Item 12 of Form S-3 under the
Securities Act.
SECTION 1. REPRESENTATIONS AND WARRANTIES. NWA Corp. and the Company
jointly and severally represent and warrant to, and agree with the Underwriter
that:
(a) NWA Corp. and the Company meet the requirements for use of
Form S-3 under the Securities Act; the Registration Statement has
become effective; on the original effective date of the Registration
Statement, on the effective date of the most recent post-effective
amendment thereto, if any, and on the date of the filing by NWA Corp.
of any annual report on Form 10-K after the original effective date of
the Registration Statement, the Registration Statement, and any
amendments and supplements thereto complied in all material respects
with the requirements of the Securities Act and the Registration
Statement did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; on the date
hereof and on the Closing Date (as defined below), neither the
Prospectus nor any amendments thereof and supplements thereto, includes
or
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will include an untrue statement of a material fact or omits or will
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 based upon
information relating to the Underwriter furnished in writing to NWA
Corp. or the Company by or on behalf of the Underwriter expressly for
use in the Prospectus or to statements or omissions in that part of the
Registration Statement which shall constitute the Statement of
Eligibility of the Trustee under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), on Form T-1.
(b) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the Securities Act, at the time
they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the Exchange
Act.
(c) Ernst & Young LLP, who have reported upon the audited
consolidated financial statements and the financial statement
schedules, if any, included or incorporated by reference in the
Registration Statement, are independent public accountants within the
meaning of the Securities Act.
(d) This Agreement has been duly authorized, executed and
delivered by each of the Company and NWA Corp..
(e) The Company does not have any "significant subsidiaries"
as defined in Regulation S-X, [and NWA Corp. does not have any
significant subsidiaries (other than the Company)].
(f) The consolidated financial statements included or
incorporated by reference in the Registration Statement present fairly
the consolidated financial position of NWA Corp. and its consolidated
subsidiaries as of the dates indicated and the consolidated results of
operations and cash flows or changes in financial position of NWA Corp.
and its consolidated subsidiaries for the periods specified. Except as
stated therein, such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved. The financial
statement schedules, if any, included or incorporated by reference in
the Registration Statement present fairly the information required to
be stated therein. The summary consolidated financial data included in
the Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited
consolidated financial statements included or incorporated by reference
in the Registration Statement.
(g) [Each of] the Company [and NWA Corp.] is a corporation
duly organized, validly existing and in good standing under the laws of
the State of Minnesota [and Delaware, respectively,] with corporate
power and authority under such laws to own, lease and operate its
properties and conduct its business as described in the Prospectus
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and to perform its obligations under this Agreement; and [each of NWA
Corp. and] the Company is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction
in which it owns or leases property of a nature, or transacts business
of a type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the condition (financial or other),
earnings, business or prospects of NWA Corp. and its consolidated
subsidiaries, considered as one enterprise (a "Material Adverse
Effect").
(h) The Company is a "citizen of the United States" (as
defined in Section 40102(a)(15) of Title 49 of the United States Code)
and is an air carrier operating under a certificate issued by the
Secretary of Transportation pursuant to Chapter 447 of Title 49, United
States Code, for aircraft capable of carrying 10 or more individuals or
6,000 pounds or more of cargo. There is in force with respect to the
Company an air carrier operating certificate issued pursuant to Part
121 of the regulations under the sections of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
Code, relating to aviation (the "Federal Aviation Act"). All of the
outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable and
are owned by NWA Corp., indirectly through Old NWA Corp. and NWA Inc.,
each a Delaware corporation, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any kind.
[(i) The Indenture, each supplement thereto, if any, to the
date hereof and the supplement thereto or board resolution setting
forth the terms of the Notes in Officers' Certificates (as defined in
the Indenture) (the Indenture, as so supplemented by such supplement or
supplements and board resolution, being herein referred to as the
"Designated Indenture") will be substantially in the form heretofore
delivered to you and, when duly executed and delivered by the Company,
NWA Corp. and the Trustee, will constitute a valid and binding
obligation of the Company and NWA Corp., enforceable against the
Company and NWA Corp. in accordance with its terms, except as may be
subject to (A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, (B) general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law) and (C) an implied covenant of good faith and fair
dealing. The Designated Indenture conforms in all material respects to
the description thereof in the Prospectus, and the Original Indenture
as executed is substantially in the form filed as an exhibit to the
Registration Statement and has been duly qualified under the Trust
Indenture Act.
(j) When executed, authenticated, issued and delivered in the
manner provided for in the Designated Indenture and sold and paid for
as provided in this Agreement, the Notes and the related Guarantees
will constitute valid and binding obligations of the Company or NWA
Corp., as the case may be, entitled to the benefits of the Designated
Indenture and enforceable against the Company or NWA Corp., as the case
may be, in accordance with their terms, except as may be subject to (A)
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws
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relating to or affecting creditors' rights generally, (B) general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law) and (C) an implied covenant of
good faith and fair dealing. Each of the Notes and the related
Guarantees conforms in all material respects to the descriptions
thereof in the Prospectus.]
[(k) When executed and delivered by the Company and the
Warrant Agent, the Warrant Agreement will be a valid and binding
agreement of the Company, enforceable in accordance with its terms,
except as may be subject to (A) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, (B) general principles of
equity (regardless of whether enforcement is considered in a proceeding
in equity or at law) and (C) an implied covenant of good faith and fair
dealing. The Warrant Agreement conforms in all material respects to the
description thereof in the Prospectus and is substantially in the form
filed as an exhibit to the Registration Statement.
(l) When executed, countersigned, issued and delivered in the
manner provided for in the Warrant Agreement and sold and paid for as
provided in this Agreement, the Warrants will be a valid and binding
agreement of the Company, enforceable in accordance with its terms,
except as may be subject to (A) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, (B) general principles of
equity (regardless of whether enforcement is considered in a proceeding
in equity or at law) and (C) an implied covenant of good faith and fair
dealing. The Warrants conform in all material respects to the
description thereof in the Prospectus.
(m) The Warrant Debt Securities have been duly authorized,
created, [reserved] and when issued and delivered in the manner
provided for in the Indenture and upon the exercise of the Warrants in
accordance with the terms of the Warrant Agreement, such Warrant Debt
Securities and the related Guarantees will constitute valid and binding
obligations of the Company or the Guarantor, as the case may be,
entitled to the benefits of the Indenture and enforceable against the
Company or the Guarantor, as the case may be, in accordance with their
terms, except as may be subject to (A) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, (B) general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law) and (C) an implied covenant of
good faith and fair dealing. Each of the Warrant Debt Securities and
the related Guarantees will conform in all material respects to the
descriptions thereof in the Prospectus.]
(n) Since the respective dates as of which information is
given in the Prospectus, except as otherwise stated therein or
contemplated thereby, there has not been any material adverse change in
the condition (financial or otherwise), earnings, business or prospects
of NWA Corp. and its consolidated subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business.
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(o) [Neither] the Company [nor NWA Corp.] is [not] in default
in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which it is
a party or by which it may be bound or to which any of its properties
may be subject, except for such defaults that would not have a Material
Adverse Effect. The execution and delivery by the Company and NWA
Corp.[, as applicable] of this Agreement and [the Designated
Indenture,] [the Warrant Agreement,] the issuance and delivery of the
[Notes] [Securities] [Warrants] [and the related Guarantees] and the
consummation by the Company and NWA Corp. of the transactions
contemplated by this Agreement and the Prospectus, and compliance by
the Company and NWA Corp. with the terms of this Agreement have been
duly authorized by all necessary corporate action on the part of the
Company and NWA Corp. and do not and will not result in any violation
of the charter or by-laws of the Company or NWA Corp., and do not and
will not result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company or NWA Corp. under (A) any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or other instrument to which
the Company or NWA Corp. is a party or by which either may be bound or
to which any of its properties may be subject and which is included or
incorporated by reference as an exhibit to any document incorporated by
reference in the Prospectus or included as an exhibit to the
Registration Statement, except for such breaches, defaults, liens,
charges or encumbrances that would not have a Material Adverse Effect
or (B) any existing applicable law, rule, regulation, judgment, order
or decree of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Company or NWA Corp.
or any of their respective properties (other than the securities or
Blue Sky or similar laws of the various states and of foreign
jurisdictions), except for such breaches, defaults, liens, charges or
encumbrances that would not have a Material Adverse Effect.
(p) No authorization, approval, consent, order or license of
or filing with or notice to any government, governmental
instrumentality or court, domestic or foreign, is required for the
valid authorization, issuance, sale and delivery of the [Notes]
[Securities] [Warrants] [and the related Guarantees], the valid
authorization, execution, delivery and performance by NWA Corp. and/or
the Company of this Agreement or the consummation of the transactions
contemplated by this Agreement, except such as are required under the
Securities Act, [the Trust Indenture Act] and the securities or Blue
Sky or similar laws of the various states and of foreign jurisdictions.
(q) Except as disclosed in the Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company [or NWA Corp.], threatened against the Company
[or NWA Corp.] that is required to be disclosed in the Prospectus or
that could reasonably be expected to have a Material Adverse Effect or
that could reasonably be expected to materially and adversely affect
the consummation of the transactions contemplated by this Agreement;
the aggregate of all pending legal or governmental
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proceedings that are not described in the Prospectus to which the
Company [or NWA Corp.] is a party or which affect any of their
respective properties, including ordinary routine litigation incidental
to their business, would not reasonably be expected to have a Material
Adverse Effect.
(r) There are no contracts or documents of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described and filed as required.
(s) The Company [and NWA Corp.] each possess all adequate
certificates, authorizations and permits issued by appropriate
governmental agencies or bodies which are necessary to conduct, in all
material respects, the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit that, if
determined adversely to the Company [or NWA Corp.], would have, singly
or in the aggregate, a Material Adverse Effect.
(t) Except as disclosed in the Prospectus, no labor dispute
with the employees of the Company [or NWA Corp.] exists or, to the
knowledge of the Company [and NWA Corp.,] is imminent, in either case,
which might reasonably be expected to have a Material Adverse Effect.
(u) [Neither] the Company [nor NWA Corp.] is [not], and after
giving effect to the application of the proceeds of the sale of the
[Notes] [Securities] [Warrants] as described in the Prospectus,
[neither] the Company [nor NWA Corp.] will [not] be required to
register as, an "investment company" under the Investment Company Act
of 1940, as amended (the "Investment Company Act").
(v) The Company [and NWA Corp. have] [has] not taken and will
not take, directly or indirectly, any action prohibited by Regulation M
under the Exchange Act, to the extent applicable, in connection with
the offering of the [Notes] [Securities] [Warrants] [and the related
Guarantees].
(w) The information regarding year 2000 compliance and the
Euro conversion included or incorporated by reference in the
Registration Statement and the Prospectus complies in all material
respects with the requirements of the Securities Act (including Staff
Legal Bulletin ▇▇. ▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇-▇▇▇▇ (July 29, 1998) and SEC
Release No. 33-7609 (November 9, 1998)).
Any certificate signed by a duly authorized officer of the Company or
NWA Corp. and delivered to the Underwriter or to counsel for the Underwriter in
connection with the offering of the [Notes][Securities][Warrants][and the
related Guarantees] shall be deemed a representation and warranty by the Company
[or NWA Corp., as the case may be,] to the Underwriter as to the matters covered
thereby.
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SECTION 2. PURCHASE AND SALE. Subject to the terms and conditions set
forth herein and in reliance upon the representations and warranties herein
contained, [each of] the Company [and NWA Corp.] agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the Company
[$__________ aggregate principal amount [at maturity] of Notes, at a purchase
price of ______% of the principal amount [at maturity] thereof (plus accrued
interest, if any, from _______, ____)] [and][the Warrants to purchase an
aggregate of $________ principal amount [at maturity] of the Warrant Debt
Securities].
SECTION 3. DELIVERY OF AND PAYMENT FOR THE NOTES. (a) Delivery of and
payment for the [Notes] [and] [Warrants] shall be made at the offices of
________________ at _____ on ________, _____ or on such other date, time and
place as may be agreed upon by the Company, [NWA Corp.] and you (such date and
time of delivery and payment for the Notes being herein called the "Closing
Date"). Delivery of the [Notes][and][Warrants] shall be made to your account at
The Depository Trust Company against payment by you to or upon the order of the
Company of the purchase price by wire transfer of immediately available funds to
the Company's account at Norwest Bank (National Association) or as otherwise
instructed in writing by the Company. Upon delivery, the [Notes][and][Warrants]
shall be in fully registered form in such denominations and registered in such
names, or otherwise, as you shall have requested in writing at least two full
business days in advance of the Closing Date. The Company [and NWA Corp.] shall
not be obligated to deliver any of the [Notes][and][Warrants] except upon
payment for all the [Notes][and][Warrants] to be purchased as provided herein.
(b) The Company agrees to have one or more global certificates
representing the [Notes][and][Warrants] available for inspection and checking by
you in New York, New York not later than one full business day prior to the
Closing Date.
SECTION 4. CONDITIONS OF UNDERWRITER'S OBLIGATION. The obligation of
the Underwriter to purchase and pay for the [Notes][and][Warrants] pursuant to
this Agreement are subject to the following conditions:
(a) On the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the Securities Act and no proceedings therefor shall have been
instituted or threatened by the Commission.
(b) On the Closing Date, you shall have received an opinion
of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, as counsel for the Company [and NWA
Corp.], dated the Closing Date and in form and substance reasonably
satisfactory to you and counsel for the Underwriter, substantially to
the effect set forth in Exhibit A hereto.
(c) On the Closing Date, you shall have received an opinion
of the General Counsel of the Company [and NWA Corp.], dated the
Closing Date and in form and substance reasonably satisfactory to you
and counsel for the Underwriter, substantially to the effect set forth
in Exhibit B hereto.
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(d) On the Closing Date, you shall have received an opinion
of ___________, as counsel for the Underwriter, dated the Closing Date,
with respect to the issuance and sale of the
[Notes][Securities][Warrants] [and the related Guarantees], the
Registration Statement, the Prospectus and other related matters as the
Underwriter may reasonably require.
(e) On the Closing Date, (i) (A) the Registration Statement,
as it may then be amended or supplemented, shall not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (B) the Prospectus, as it may then be amended or
supplemented, shall not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made, (C) the Company [and NWA
Corp.] shall have complied with all agreements and satisfied all
conditions on [their respective][its] part[s] to be performed or
satisfied at or prior to the Closing Date, and (D) the other
representations and warranties of the Company and NWA Corp. set forth
in Section 1(a) shall be accurate in all material respects as though
expressly made at and as of the Closing Date (except to the extent that
such representations and warranties refer to an earlier or later date,
in which case they shall be accurate in all material respects as of
such dates) and (ii) subsequent to the execution and delivery of this
Agreement, there shall not have been any material adverse change in the
condition (financial or other), earnings, business or prospects of NWA
Corp. and its consolidated subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business, that in your
judgment, is so material and adverse that it makes it impracticable or
inadvisable to proceed with the public offering or sale of and payment
for the [Notes][or][Warrants]. At the Closing Date, you shall have
received a certificate of the President or a Senior or Executive Vice
President, and other senior officers of the Company [and NWA Corp.]
approved by you, dated as of the Closing Date, to such effect.
(f) On each of the date hereof and the Closing Date, you
shall have received a letter, dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to you and
counsel to the Underwriter, from Ernst & Young LLP, the Company's [and
NWA Corp.=s] independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain other financial or statistical data and certain financial
information contained in or incorporated by reference into the
Registration Statement and the Prospectus.
(g) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have been any
downgrading nor any notice given to the Company [or NWA Corp.] or any
public notice given, in either case by a rating agency described below,
of any intended or potential downgrading or of a possible change that
does not indicate the direction of the possible change, in the rating
accorded any of the Company's or NWA Corp.'s securities, including the
[Notes][Securities][Warrants][and
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the related Guarantees], by any "nationally recognized statistical
rating organization", as such term is defined for purposes of Rule
436(g)(2) under the Securities Act.
(h) The Company [and NWA Corp.] shall have furnished to you
and to counsel for the Underwriter, in form and substance satisfactory
to you and to them, such other documents, certificates and opinions as
such counsel may reasonably request in order to pass upon the matters
referred to in Section 4(d) and in order to evidence the accuracy and
completeness of any of the representations, warranties or statements,
the performance of any covenant by the Company [or NWA Corp.]
theretofore to be performed, or the compliance with any of the
conditions herein contained.
If any of the conditions specified in this Section 4 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by you on notice to the Company and NWA Corp. at any
time prior to the Closing Date and such termination shall be without liability
of any party to any other party, except as provided in Section 6.
Notwithstanding any such termination, the provisions of Section 7 shall remain
in effect.
SECTION 5. CERTAIN COVENANTS OF THE COMPANY AND NWA CORP.. The Company
and NWA Corp. covenant with the Underwriter as follows:
(a) To furnish to you, without charge, as soon as practicable
on the business day next succeeding the date of This Agreement and
during the period mentioned in paragraph (e) below, as many copies of
the Prospectus, and any supplements or amendments thereto, as you may
reasonably request.
(b) To furnish to you as many conformed copies of the
Registration Statement (as originally filed) and of all amendments
thereto, whether filed before or after such Registration Statement
became effective, as many copies of all exhibits and documents filed
therewith or incorporated by reference therein (through the end of the
period mentioned in paragraph (e) below) and one signed and as many
conformed copies of all consents and certificates of experts as you may
reasonably request and, if requested by you, to furnish to you one
conformed copy of the Registration Statement (as originally filed) and
of each amendment thereto (including documents incorporated by
reference into the Prospectus but without exhibits).
(c) Promptly following the execution of this Agreement, to
prepare a Prospectus Supplement that complies with the Securities Act
and that sets forth the principal amount of the Notes and their terms
not otherwise specified in the Preliminary Prospectus Supplement, if
any, or the base prospectus included in the Registration Statement, the
name of the Underwriter participating in the offering and the principal
amount of the Notes that it has agreed to purchase, the price[s] at
which the [Notes][and][Warrants] are to be purchased by the Underwriter
from the Company, any initial public offering price, any selling
concession and reallowance and any delayed delivery arrangements, and
such other information as you, the Company [and NWA Corp.] deem
appropriate in connection with the offering of the
[Notes][and][Warrants].
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The Company and NWA Corp. will timely transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424 under the
Securities Act.
(d) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish the Underwriter with a copy of
each such proposed amendment or supplement, and to file no such
proposed amendment or supplement to which you reasonably object by
notice to the Company [and NWA Corp.] after a reasonable period of
review; PROVIDED that the foregoing shall not prevent NWA Corp. from
filing reports required to be filed by it pursuant to the Exchange Act,
and provided further that NWA Corp. shall have provided you with a copy
of any such report prior to its filing with the Commission.
(e) If, during such period after the first date of the public
offering of the [Notes][and][Warrants] when the Prospectus is required
by law to be delivered in connection with sales of the [Notes][or][the
Warrants] by an Underwriter or dealer any event shall occur as a result
of which it is necessary, in the reasonable opinion of counsel for the
Underwriter or counsel for the Company [and NWA Corp.], to amend the
Registration Statement or amend or supplement the Prospectus in order
to make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, or if it is
necessary, in the reasonable opinion of either such counsel, to amend
the Registration Statement or amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at its own expense,
to the Underwriter and to the dealers (whose names and addresses you
will furnish to the Company [and NWA Corp.]) to which the
[Notes][or][Warrants] may have been sold by you and to any other
dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Registration Statement or the Prospectus, as so amended or
supplemented, will comply with law and to cause such amendments or
supplements to be filed promptly with the Commission. Neither your
consent to, nor the Underwriter's delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth
in Section 4.
(f) During the period mentioned in paragraph (e) above, to
notify you immediately, (i) of the effectiveness of any amendment to
the Registration Statement, (ii) of the transmittal to the Commission
for filing of any supplement to the Prospectus or any document that
would as a result thereof be incorporated by reference in the
Prospectus, (iii) of the receipt of any comments from the Commission
with respect to the Registration Statement, the Prospectus or the
Prospectus Supplement, (iv) of any request by the Commission for any
amendment to the Registration Statement or any supplement to the
Prospectus or for additional information relating thereto or to any
document incorporated by reference in the Prospectus and (v) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, of the suspension of the
qualification of the Notes for offering or sale in any jurisdiction, or
of the institution or threatening of any proceeding for any of such
purposes; and to use every
12
reasonable effort to prevent the issuance of any such stop order or of
any order suspending such qualification and, if any such order is
issued, to obtain the lifting thereof at the earliest possible moment.
(g) To use their respective reasonable efforts, in cooperation
with the Underwriter, to qualify the [Notes][Securities][Warrants][and
related Guarantees] for offer and sale under the securities laws of
such states and other jurisdictions as you may reasonably request and
to maintain such qualifications in effect for so long as required for
the distribution of such [Notes][Securities][Warrants][and related
Guarantees]; PROVIDED, HOWEVER, that neither the Company nor NWA Corp.
shall be obligated to file any general consent to service of process or
to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. The Company [and NWA Corp.] will use their
reasonable efforts to file such statement and reports as may be
required by the laws of each jurisdiction in which the
[Notes][Securities][Warrants][and the related Guarantees] have been
qualified as above provided. The Company [and NWA Corp.] will also
supply you with such information as is necessary for the determination
of legality of the [Notes][Securities][Warrants][and the related
Guarantees] for investment under the laws of such jurisdictions as you
may reasonably request.
(h) To make generally available to NWA Corp.'s security
holders as soon as practicable, but not later than 45 days after the
close of the period covered thereby, an earnings statement of NWA Corp.
(in form complying with the provisions of Rule 158 of the Securities
Act), covering (i) a period of 12 months beginning after the effective
date of the Registration Statement and any post-effective amendment
thereof but not later than the first day of NWA Corp.'s fiscal quarter
next following such effective date and (ii) a period of 12 months
beginning after the date of this Agreement but not later than the first
day of NWA Corp.'s fiscal quarter next following the date of this
Agreement.
(i) For a period of two years after the Closing Date, to make
available upon request to the Underwriter, copies of all annual
reports, quarterly reports and current reports filed with the
Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as
may be designated by the Commission, and such other documents, reports
and information as shall be furnished by the Company or NWA Corp. to
the holders of [Notes][Securities][Warrants][and the related
Guarantees] or to their security holders generally provided that at
such time NWA Corp. is required to furnish such reports under the
Exchange Act.
(j) Between the date of this Agreement and the Closing Date,
not to offer, sell, or enter into any agreement to sell, directly or
indirectly, any debt securities issued or guaranteed by the Company or
NWA Corp. with a maturity of more than one year in any offering (other
than the Notes), without your prior written consent.
13
(k) To use the proceeds from the sale of the
[Notes][and][Warrants] in the manner described in the Prospectus
Supplement under the caption "Use of Proceeds".
(l) During the period when a prospectus relating to the
[Notes][and] [Warrants] is required to be delivered under Section 5(c)
of the Securities Act, to file promptly all documents required to be
filed with the Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
(m) Until the completion of the resale of the
[Notes][and][Warrants] by the Underwriter, none of the Company, NWA
Corp. or any of their affiliated purchasers (as defined in Rule 100
under the Exchange Act), either alone or with one or more other
persons, will bid for or purchase, for any account in which it or any
of its affiliated purchasers has a beneficial interest, any
[Notes][and][Warrants], or attempt to induce any person to purchase any
[Notes][and][Warrants]; and neither they nor any of their affiliated
purchasers will make bids or purchases for the purpose of creating
actual, or apparent, active trading in the [Notes][and][Warrants] or of
raising the price of the Notes.
(n) To comply to the best of their abilities with the
Securities Act, the Exchange Act [and the Trust Indenture Act] so as to
permit the completion of the distribution of [the Notes][and][Warrants]
as contemplated in this Agreement and in the Prospectus.
SECTION 6. PAYMENT OF EXPENSES. The Company [and NWA Corp.] will pay or
cause to be paid all costs and expenses incident to the performance of their
obligations under this Agreement, including, without limitation, (a) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits), as originally filed and as amended, any
Preliminary Prospectus Supplement and the Prospectus and any amendments or
supplements thereto, and the cost of furnishing copies thereof to the
Underwriter, (b) the printing or processing and distribution of this Agreement,
the [Notes], the Blue Sky Survey and any Legal Investment Survey, (c) the
delivery of the Notes [and][Warrants], (d) the fees and disbursements of counsel
and accountants for NWA Corp. and the Company, (e) the qualification of the
[Notes][and][Warrants] with the National Association of Securities Dealers, Inc.
(the "NASD") and under the applicable securities laws in accordance with Section
5(g), including filing fees and reasonable fees and disbursements of counsel for
the Underwriter in connection therewith and in connection with the Blue Sky
Survey, (f) any fees charged by rating agencies for rating the Notes (including
annual surveillance fees related to the Notes as long as they are outstanding)
and (g) the fees and expenses of the Trustee, including the reasonable fees and
disbursements of counsel for the Trustee, in connection with the Notes.
If this Agreement is terminated by the Underwriter in accordance with
the provisions of Section 4 or 8, the Company [and NWA Corp., jointly and
severally,] agree[s] to reimburse the Underwriter for all its reasonable
out-of-pocket expenses, including the fees and disbursements of counsel for the
Underwriter.
14
SECTION 7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company [and NWA
Corp., jointly and severally], agree[s] to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter within the
meaning of either 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, any legal or other expenses reasonably incurred
by the Underwriter or any such controlling person in connection with defending
or investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any Preliminary Prospectus Supplement or the
Prospectus (as amended or supplemented if the Company [or NWA Corp.] shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to the Underwriter furnished in writing to NWA Corp. [and
the Company] by or on behalf of the Underwriter expressly for use therein;
PROVIDED that such indemnity with respect to the Prospectus shall not inure to
the benefit of the Underwriter (or any person controlling the Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Notes which are the subject thereof if such person was not sent a copy of
the Prospectus at or prior to the confirmation of the sale of such
[Notes][and][Warrants] to such person in any case where such delivery is
required by the Securities Act and the untrue statement or omission of a
material fact contained in such Preliminary Prospectus Supplement was corrected
in such subsequent Prospectus, unless such failure to deliver the Prospectus was
a result of noncompliance by the Company [and NWA Corp.] with their delivery
requirements set forth in Section 5 hereof.
(b) The Underwriter agrees to indemnify and hold harmless the Company
and NWA Corp., each of their directors, each of their officers who signed the
Registration Statement and each person, if any, who controls the Company or NWA
Corp. within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the
Company and NWA Corp. to the Underwriter, but only with reference to information
relating to the Underwriter furnished in writing to [NWA Corp. or] the Company
16 by or on behalf of the Underwriter expressly for use in the Registration
Statement, any Preliminary Prospectus Supplement, the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. An indemnifying
party may participate at its own expense in the defense of such action. If it so
elects within a reasonable time after receipt of such notice, an indemnifying
party, jointly with any other indemnifying parties receiving such notice, may,
except as provided in the immediately following sentence, assume the defense of
such action, with counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel
15
related to such proceeding. In any such proceeding, any indemnified party 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 party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings 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 such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by
___________________, in the case of parties indemnified pursuant to paragraph
(a) above, and by the Company [or NWA Corp.], in the case of parties indemnified
pursuant to paragraph (b). The indemnifying party 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 for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified 17 party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs (a) and (b) of
this Section 7 is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party 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 [and NWA Corp.] on the one hand and the
Underwriter on the other hand from the offering of the [Notes] [and] [the
Warrants] or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company [and NWA Corp.] on the one hand and of the Underwriter on
the other hand 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 [and NWA
Corp.] on the one hand and the Underwriter on the other hand in connection with
the offering of the [Notes][and][the Warrants] shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the
[Notes][and][the Warrants] (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the
Underwriter, in each case as set forth on the cover of the Prospectus, bear to
the aggregate public offering price of the [Notes][and][the Warrants]. The
relative fault of the Company [and NWA Corp.] on the one hand and of the
Underwriter on the other hand 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
16
the Company [or NWA Corp.] or by the Underwriter and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Company, [NWA Corp.] and the Underwriter agree that it would
not be just or equitable if contribution pursuant to this Section 7 were
determined by PRO RATA allocation 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 party 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 legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, the Underwriter shall not be required to
contribute any amount in excess of the amount by 18 which the total price at
which the [Notes][and][Warrants] underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that the
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 remedies provided for in this
Section 7 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section
7 and the representations and warranties of the Company or NWA Corp. contained
in this Agreement shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Underwriter or any person controlling the Underwriter or by or on
behalf of NWA Corp. or Company, its officers or directors or any person
controlling NWA Corp. or the Company and (iii) acceptance of and payment for any
of the [Notes][and][Warrants.]
SECTION 8. TERMINATION OF AGREEMENT. (a)(i) This Agreement shall be
subject to termination in your absolute discretion, by notice given to the
Company [and NWA Corp], if after the execution and delivery of this Agreement
and prior to the Closing Date (A) trading generally shall have been suspended or
materially limited on the New York Stock Exchange or the Nasdaq National Market,
(B) trading of any securities of [NWA Corp. or] the Company shall have been
suspended on any exchange or in any over-the-counter market, (C) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities, or (D) there shall have
occurred any outbreak or escalation of hostilities involving the United States
or any calamity or crisis and (ii) in the case of any of the events specified in
clauses (i) (A) through (D), such event singly or together with any other such
event makes it, in your reasonable judgment, impracticable to market the [Notes]
[Securities][Warrants] [and the related Guarantees] on the terms and in the
manner contemplated in the Prospectus or inadvisable to enforce contracts for
the sale of the [Notes][Securities] [Warrants][and the related Guarantees].
17
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 6. Notwithstanding any such termination, the
provisions of Section 7 shall remain in effect. If this Agreement shall be
terminated by the Underwriter because of any failure or refusal on the part of
[NWA Corp. or] the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason [NWA Corp. or] the Company
shall be unable to perform its obligations under this Agreement, the Company
will reimburse the Underwriter for all out-of-pocket expenses (including the
reasonable fees and disbursements of its counsel) reasonably incurred by the
Underwriter in connection with this Agreement or the offering contemplated
hereunder.
(c) This Agreement may also terminate pursuant to the provisions of
Section 4, with the effect stated in such Section.
SECTION 9. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 10. GOVERNING LAW AND TIME. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York.
Specified times of the day refer to New York City time.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered,
mailed, or transmitted by any standard form of telecommunication, including
telex or facsimile transmission. Notices to the Underwriter shall be directed to
________________, ____________________, Telephone No.: _______________,
Facsimile No.: ______________, Attention: ______________.
SECTION 12. PARTIES. This Agreement is made solely for the benefit of
the Underwriter, the Company, NWA Corp. and, to the extent expressed, any person
controlling the Company, NWA Corp. or the Underwriter within the meaning of
Section 15 of the Securities Act, and their respective executors,
administrators, successors and assigns and no other person shall acquire or have
any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include any purchaser, as such purchaser, from the
Underwriter of the Notes.
SECTION 13. HEADINGS. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
18
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among the Company, NWA Corp. and the
Underwriter in accordance with its terms.
Very truly yours,
NORTHWEST AIRLINES, INC.
By:
-----------------------------------
Name:
Title:
NORTHWEST AIRLINES CORPORATION
By:
-----------------------------------
Name:
Title:
Accepted as of the date first above written:
[Underwriters]
By:
-----------------------------
By:
-----------------------------
Name:
Title:
EXHIBIT A
Form of Opinion of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
[(i) NWA Corp. has been duly incorporated and is validly existing and
in good standing as a corporation under the laws of the State of Delaware and
has full corporate power and authority to conduct its business as described in
the Registration Statement and Prospectus.
(ii) Each of the Original Indenture, the First Supplemental Indenture
and the Second Supplemental Indenture has been duly authorized, executed and
delivered by NWA Corp., and the Original Indenture has been duly qualified under
the Trust Indenture Act; and, assuming that the Indenture is the valid and
legally binding obligation of the Trustee, the Indenture constitutes a valid and
legally binding obligation of the Company and NWA Corp., enforceable against the
Company and NWA Corp. in accordance with its terms.
(iii) The Notes have been duly authorized, executed and issued by the
Company and, assuming due authentication thereof by the Trustee and upon payment
and delivery in accordance with this Agreement, will constitute valid and
legally binding obligations of the Company, enforceable against the Company in
accordance with their respective terms.
(iv) The Guarantees have been duly authorized, executed and issued by
NWA Corp. and, assuming the authentication of the Notes by the Trustee and upon
payment for and delivery of the Notes in accordance with this Agreement, will
constitute valid and legally binding obligations of NWA Corp., enforceable
against NWA Corp. in accordance with their respective terms.]
[(v) The Warrant Agreement has been duly authorized, executed and
delivered by the Company and, assuming that the Warrant Agreement is the valid
and legally binding obligation of the Warrant Agent, the Warrant Agreement
constitutes a valid and binding obligation of the Company, enforceable in
accordance with its terms.
(vi) The Warrants have been duly authorized, executed and issued by the
Company and, assuming due countersigning thereof by the Warrant Agent and upon
payment and delivery in accordance with this Agreement, will constitute valid
and binding obligations of the Company, enforceable in accordance with their
respective terms.]
(vii) The statements made in the Prospectus under the captions
["Description of Notes" and "Description of Debt Securities,"][and]["Description
of Warrants"] insofar as
they purport to constitute summaries of certain terms of [the Notes,
the Guarantees and the Indenture][and][the Warrants and the Warrant
Agreement] specifically referred to therein, constitute accurate
summaries of such terms in all material respects.
(viii) This Agreement has been duly authorized, executed and
delivered by NWA Corp.
(ix) No consent, approval, authorization, order, registration
or qualification of or with any federal or New York governmental agency
or body or any Delaware governmental agency or body acting pursuant to
the Delaware General Corporation Law or, to our knowledge, any federal
or New York court or any Delaware court acting pursuant to the Delaware
General Corporation Law is required for the issue and sale of [the
Notes and the Guarantees][and][the Warrants] in the manner contemplated
by this Agreement, except for the registration under the Securities Act
of [the Notes and the Guarantees][and][the Warrants], and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of [the Notes and the
Guarantees][and][the Warrants] by the Underwriter.
(x) [Neither] the Company [nor NWA Corp.] is [not], and, after
giving effect to the application of the proceeds of the sale of the
Notes as described in the Prospectus, [neither] the Company [nor NWA
Corp.] will [not] be, required to register as an "investment company"
within the meaning of and subject to regulation under the Investment
Company Act of 1940, as amended.
(xi) The Registration Statement has become effective under the
Securities Act, the Prospectus has been filed in accordance with Rule
424(b) of the rules and regulations of the Commission under the
Securities Act and, to our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or threatened by the
Commission.
Such counsel may state that its opinion as set forth in paragraphs
(ii), (iii) and (iv) are subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing. In addition, such counsel shall
also state that they have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Prospectus or the documents incorporated by reference (collectively, the
"Exchange Act Documents") and take no responsibility therefor, except as and to
the extent set forth in paragraph (v) above, and in the course of the
preparation by the Company and NWA Corp. of the Registration Statement and the
Prospectus (excluding the Exchange Act Documents), such counsel participated in
conferences with certain officers and employees of the Company and NWA Corp.,
with representatives of the independent public accountants for the Company and
NWA Corp. and with counsel to the Company and NWA
A-2
Corp. Such counsel may state that they did not prepare the Exchange Act
Documents (other than the Form 8-Ks), however, such counsel reviewed the
Exchange Act Documents with the Company and NWA Corp. and with counsel to the
Company and NWA Corp. prior to their filing with the Commission, and, based upon
such counsel's examination of the Registration Statement, the Prospectus and the
Exchange Act Documents, such counsel's investigations made in connection with
the preparation of Registration Statement and the Prospectus (excluding the
Exchange Act Documents) and such counsel's participation in the conferences
referred to above, (i) such counsel is of the opinion that the Registration
Statement at the time such Registration Statement became effective and the
Prospectus (excluding the Exchange Act Documents), as of __________, ____,
complied as to form in all material respects with the requirements of the
Securities Act, [the Trust Indenture Act] and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents
complied as to form when filed in all material respects with the requirements of
the Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case such counsel may state that it expresses no
opinion with respect to the financial statements or other financial or
statistical data contained or incorporated by reference in the Registration
Statement, the Prospectus or the Exchange Act Documents, and (ii) such counsel
has no reason to believe that the Registration Statement, at the time such
Registration Statement became effective (including the Exchange Act Documents on
file with the Commission on such effective date) contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading or
that the Prospectus (including the Exchange Act Documents) as of __________,
____ or as of the Closing Date contains an untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that in each case such counsel may state that it expresses no
belief with respect to the financial statements and other financial or
statistical data contained or incorporated by reference in the Registration
Statement, the Prospectus or the Exchange Act Documents.
Insofar as the opinions expressed by such counsel relate to or are
dependent upon matters governed by the laws of the State of Minnesota, such
counsel may state that it has relied upon the opinion of the Office of the
General Counsel of the Company, delivered to you concurrently with such
counsel's opinion.
A-3
EXHIBIT B
Form of Opinion of the General Counsel
of NWA Corp. and the Company
(i) The Company has been duly incorporated, is validly
existing and in good standing under the laws of the State of Minnesota
with corporate power and corporate authority under such laws to own,
lease and operate its properties and conduct its business as described
in the Prospectus and to perform its obligations under this Agreement,
the Designated Indenture and the Notes.
(ii) The Company is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction
in which it owns or leases property of a nature, or transacts business
of a type, that would make such qualification necessary, except where
the failure to so qualify or be in good standing would not have a
Material Adverse Effect.
[(iii) NWA Corp. is duly qualified to transact business as a
foreign corporation and is in good standing in the State of Minnesota.]
(iv) The Company is a "citizen of the United States" (as
defined in Section 40102(a)(15) of Title 49 of the United States Code)
and is an air carrier operating under a certificate issued by the
Secretary of Transportation pursuant to Chapter 447 of Title 49, United
States Code, for aircraft capable of carrying 10 or more individuals or
6,000 pounds or more of cargo; there is in force with respect to the
Company an air carrier operating certificate issued pursuant to Part
121 of the regulations under the Federal Aviation Act; all of the
outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable and
are owned by NWA Corp., indirectly through Old NWA Corp. and NWA Inc.,
each a Delaware corporation, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any kind.
(v) To such counsel's knowledge, except as disclosed in the
documents incorporated by reference in the Registration Statement and
the Prospectus (the "Exchange Act Documents"), there are no statutes or
regulations, or any pending or threatened legal or governmental
proceedings, required to be described in the Prospectus that are not
described as required, nor any contracts or documents of a character
required to be described or referred to in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described, referred to or filed as required.
(vi) The execution and delivery by NWA Corp. and the Company
of this Agreement and [the Indenture][and][the Warrant Agreement], the
issuance and sale of the
B-1
[Notes][and][Warrants][and the related Guarantees], the consummation by
[NWA Corp. and] the Company of the transactions contemplated by this
Agreement and [the Designated Indenture][and][the Warrant Agreement]
and compliance by the Company [and NWA Corp.] with the terms hereof and
thereof do not and will not result in any violation of the charter or
by-laws of the Company [or NWA Corp.], and do not and will not result
in a breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company [or
NWA Corp.] under (A) any indenture, mortgage, loan agreement, note,
lease or other agreement or instrument included or incorporated by
reference as an exhibit to the Exchange Act Documents (except for such
breaches, defaults, liens, charges or encumbrances that would not have
a Material Adverse Effect) or included as an exhibit to the
Registration Statement (except for such breaches, defaults, liens,
charges or encumbrances that would not have a Material Adverse Effect),
(B) any existing law, rule or regulation of the State of Minnesota or
the United States of America applicable to the Company [or NWA Corp.]
(other than the securities or Blue Sky laws of the State of Minnesota,
as to which such counsel need express no opinion), or (C) any judgment,
order or decree of any government, governmental instrumentality or
court, domestic or foreign, known to such counsel and having
jurisdiction over the Company [or NWA Corp.] or any of [their
respective][its] properties.
(vii) Under any provision of law or regulation applicable to
the Company [or NWA Corp.] of the State of Minnesota or the United
States of America, no authorization, approval, consent, order or
license of or filing with or notice to any governmental agency or body
or any court is required for the valid authorization, issuance and
delivery of the [Notes][Warrants][or the related Guarantees], the valid
authorization, execution and delivery by the Company and NWA Corp. of,
and the performance by the Company and NWA Corp. of their respective
obligations under, this Agreement and [the Designated Indenture][the
Warrant Agreement], except such as are required under the securities or
Blue Sky laws of the State of Minnesota.
(viii) This Agreement has been duly authorized, executed and
delivered by the Company.
[(ix) The Designated Indenture has been duly authorized,
executed and delivered by the Company; the Notes have been duly
authorized by requisite corporate action on the part of the Company and
have been duly executed and issued by the Company.]
[(x) The Warrant Agreement has been duly authorized, executed
and delivered by the Company; the Warrants have been duly authorized by
requisite corporate action on the part of the Company and have been
duly executed and issued by the Company.]
B-2
(xi) The Exchange Act Documents (except for the financial
statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which
such counsel need express no opinion), as of the dates they were filed
with the Commission, complied as to form in all material respects with
the requirements of the Exchange Act.
In addition, counsel shall state that such counsel or lawyers on his
staff have participated in the preparation of the Registration Statement, the
Prospectus and the Exchange Act Documents and have participated in conferences
with certain officers and employees of the Company and NWA Corp., counsel
employed by the Company and NWA Corp., representatives of the independent public
accountants for the Company and NWA Corp., representatives of the Underwriter
and counsel for the Underwriter, at which conferences the contents of the
Registration Statement and Prospectus and related matters were discussed. Such
counsel shall also state that, although such counsel is not passing upon and
does not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement, the Prospectus or the
Exchange Act Documents and has not made any independent check or verification
thereof, on the basis of the participation of such counsel or lawyers on his
staff in the conferences referred to above and their examination of the
Registration Statement, the Prospectus and the Exchange Act Documents, nothing
has come to such counsel's attention that leads him to believe that the
Registration Statement, as of the effective date hereof (including the Exchange
Act Documents on file with the Commission on such effective date) contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or the Prospectus (including the Exchange Act Documents) as of its date or at
the Closing Date contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that such counsel need express no opinion with
respect to the financial statements, schedules and other financial data included
or incorporated or deemed to be incorporated by reference in the Registration
Statement or Prospectus [or with respect to the Statement of Qualification on
Form T-1].
B-3