EXHIBIT 1
NORTHWEST AIRLINES, INC., ISSUER
NORTHWEST AIRLINES CORPORATION, GUARANTOR
8.875% NOTES DUE 2006
UNDERWRITING AGREEMENT
Dated: May 24, 0000
XXXXXXXXX XXXXXXXX, XXX., ISSUER
NORTHWEST AIRLINES CORPORATION, GUARANTOR
8.875% Notes due 2006
UNDERWRITING AGREEMENT
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentleman:
Northwest Airlines, Inc., a Minnesota corporation (the
"Company"), proposes to issue and sell to you an aggregate of $300,000,000
principal amount of 8.875 % Notes due 2006 (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 (the "Guarantor"). 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. As used herein, unless the context
otherwise requires, the terms `Underwriter", "you" or "your" shall mean Xxxxxxx
Xxxxx Barney Inc.
The Guarantor and the Company have filed with the Securities
and Exchange Commission (the "Commission") a shelf registration statement on
Form S-3 (File No. 333-45314) relating to certain classes of securities (such
registration statement, including the exhibits thereto and the documents filed
by the Guarantor 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). The base prospectus, dated
2
September 27, 2000, 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, 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, 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. The Guarantor and
the Company jointly and severally represent and warrant to, and agree with the
Underwriter that:
(a) The Guarantor 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 the Guarantor 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 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 the
Guarantor 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.
3
(d) This Agreement has been duly authorized, executed and
delivered by each of the Company and the Guarantor.
(e) The Company does not have any "significant subsidiaries"
as defined in Regulation S-X, and the Guarantor 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 the Guarantor and its
consolidated subsidiaries as of the dates indicated and the
consolidated results of operations and cash flows or changes in
financial position of the Guarantor 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 the Guarantor 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 and to perform
its obligations under this Agreement; and each of the Guarantor 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 the Guarantor 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 Xxxxx 00, Xxxxxx Xxxxxx
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 the Guarantor, 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.
4
(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 or 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,
the Guarantor and the Trustee, will constitute a valid and binding
obligation of the Company and the Guarantor, enforceable against the
Company and the Guarantor 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 the
Guarantor, as the case may be, entitled to the benefits of the
Designated 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 Notes and the related Guarantees conforms in all
material respects to the descriptions thereof in the Prospectus.
(k) 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 the Guarantor and its consolidated subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business.
(l) Neither the Company nor the Guarantor is 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 the
Guarantor of this Agreement and the Designated Indenture, the issuance
and delivery of the Notes and the related Guarantees and the
consummation by the Company and the Guarantor of the transactions
contemplated by this Agreement and the Prospectus, and compliance by
the Company and the Guarantor with the terms of this Agreement have
been duly authorized by all necessary corporate action on the part of
the Company and the Guarantor and do
5
not and will not result in any violation of the charter or by-laws of
the Company or the Guarantor, 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 the Guarantor
under (A) any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or other instrument to which the Company or
the Guarantor 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 the
Guarantor 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.
(m) 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 and the
related Guarantees, the valid authorization, execution, delivery and
performance by the Guarantor 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.
(n) 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 the Guarantor, threatened against the
Company or the Guarantor 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
proceedings that are not described in the Prospectus to which the
Company or the Guarantor 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.
(o) 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.
(p) The Company and the Guarantor 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
6
any such certificate, authorization or permit that, if determined
adversely to the Company or the Guarantor, would have, singly or in the
aggregate, a Material Adverse Effect.
(q) Except as disclosed in the Prospectus, no labor dispute
with the employees of the Company or the Guarantor exists or, to the
knowledge of the Company and the Guarantor, is imminent, in either
case, which might reasonably be expected to have a Material Adverse
Effect.
(r) Neither the Company nor the Guarantor is, 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 the Guarantor will
be required to register as, an "investment company" under the
Investment Company Act of 1940, as amended (the "Investment Company
Act").
(s) The Company and the Guarantor have 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 and the related Guarantees.
Any certificate signed by a duly authorized officer of the
Company or the Guarantor and delivered to the Underwriter or to counsel for the
Underwriter in connection with the offering of the Notes and the related
Guarantees shall be deemed a representation and warranty by the Company or the
Guarantor, as the case may be, to the Underwriter as to the matters covered
thereby.
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 the Guarantor agree to sell
to the Underwriter, and the Underwriter agrees to purchase from the Company
$300,000,000 aggregate principal amount of Notes, at a purchase price of 98.25
of the principal amount thereof (plus accrued interest, if any, from May 30,
2001).
SECTION 3. DELIVERY OF AND PAYMENT FOR THE NOTES. (a) Delivery
of and payment for the Notes shall be made at the offices of Shearman &
Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M. on May
30, 2001 or on such other date, time and place as may be agreed upon by the
Company, the Guarantor and you (such date and time of delivery and payment for
the Notes being herein called the "Closing Date"). Delivery of the Notes 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 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
the Guarantor shall not be obligated to deliver any of the Notes except upon
payment for all the Notes to be purchased as provided herein.
(b) The Company agrees to have one or more global certificates
representing the Notes available for inspection and checking by you in New York,
New York not later than one full business day prior to the Closing Date.
7
SECTION 4. CONDITIONS OF UNDERWRITER'S OBLIGATION. The
obligation of the Underwriter to purchase and pay for the Notes 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
Xxxxxxx Xxxxxxx & Xxxxxxxx, as counsel for the Company and the
Guarantor, 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 the Guarantor, 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.
(d) On the Closing Date, you shall have received an opinion of
Shearman & Sterling, as counsel for the Underwriter, dated the Closing
Date, with respect to the issuance and sale of the Notes 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 the
Guarantor shall have complied with all agreements and satisfied all
conditions on their respective parts to be performed or satisfied at or
prior to the Closing Date, and (D) the other representations and
warranties of the Company and the Guarantor 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 the
Guarantor 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. 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 the Guarantor
approved by you, dated as of the Closing Date, to such effect.
8
(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 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 the Guarantor 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 the Guarantor's securities, including
the Notes and 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 the Guarantor 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 the Guarantor
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 the Guarantor 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 THE GUARANTOR.
The Company and the Guarantor 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
9
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 at which
the Notes 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 the Guarantor deem appropriate in connection with
the offering of the Notes. The Company and the Guarantor 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 after a reasonable period of review; PROVIDED
that the foregoing shall not prevent the Guarantor from filing reports
required to be filed by it pursuant to the Exchange Act, and PROVIDED
FURTHER that the Guarantor 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 when the Prospectus is required by law to be
delivered in connection with sales of the Notes 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 the Guarantor, 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) to which the Notes 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,
10
(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 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 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 and related Guarantees; PROVIDED, HOWEVER, that neither
the Company nor the Guarantor 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 the Guarantor 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 and the related Guarantees have been
qualified as above provided. The Company and the Guarantor will also
supply you with such information as is necessary for the determination
of legality of the Notes and the related Guarantees for investment
under the laws of such jurisdictions as you may reasonably request.
(h) To make generally available to the Guarantor'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 the
Guarantor (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 the Guarantor'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 the Guarantor'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 the Guarantor
to the holders of Notes and the related Guarantees or to their security
holders generally provided that at such time the Guarantor is required
to furnish such reports under the Exchange Act.
11
(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
the Guarantor with a maturity of more than one year in any offering
(other than the Notes), without your prior written consent.
(k) To use the proceeds from the sale of the Notes 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
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 by the
Underwriter, none of the Company, the Guarantor 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, or attempt to induce
any person to purchase any Notes; 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 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 as contemplated
in this Agreement and in the Prospectus.
SECTION 6. PAYMENT OF EXPENSES. The Company and the Guarantor
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, (d) the fees and disbursements of counsel and accountants for the
Guarantor and the Company, (e) the qualification of the Notes 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 the Guarantor,
jointly and severally, agree to reimburse the Underwriter for all its reasonable
out-of-pocket expenses, including the fees and disbursements of counsel for the
Underwriter.
12
SECTION 7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company
and the Guarantor, jointly and severally, agree 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 or the Prospectus (as amended or supplemented
if the Company or the Guarantor 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 the Guarantor or the Company by or on behalf
of the Underwriter expressly for use therein.
(b) The Underwriter agrees to indemnify and hold harmless the
Company and the Guarantor, each of their directors, each of their officers who
signed the Registration Statement and each person, if any, who controls the
Company or the Guarantor 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 the Guarantor to the Underwriter, but
only with reference to information relating to the Underwriter furnished in
writing to the Guarantor or the Company by or on behalf of the Underwriter
expressly for use in the Registration Statement, 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 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 Xxxxxxx Xxxxx Xxxxxx Inc., in the case of parties
indemnified pursuant
13
to paragraph (a) above, and by the Company or the Guarantor, 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 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 the Guarantor on the one hand and the
Underwriter on the other hand from the offering of the Notes 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
the Guarantor 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 the Guarantor
on the one hand and the Underwriter on the other hand in connection with the
offering of the Notes shall be deemed to be in the same respective proportions
as the net proceeds from the offering of the Notes (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. The
relative fault of the Company and the Guarantor 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 the Company or the Guarantor 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, the Guarantor 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 which the total price at which
the Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that the Underwriter has
14
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 the
Guarantor 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 the Guarantor or Company, its officers or
directors or any person controlling the Guarantor or the Company and (iii)
acceptance of and payment for any of the Notes.
SECTION 8. TERMINATION OF AGREEMENT. (a) (i) This Agreement
shall be subject to termination in your absolute discretion, by notice given to
the Company, 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 the Guarantor 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
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 and the
related Guarantees.
(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 the Guarantor or the Company to comply with the terms or
to fulfill any of the conditions of this Agreement, or if for any reason the
Guarantor 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.
15
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 Xxxxxxx Xxxxx Barney Inc., Telephone No.: 000-000-0000, Facsimile
No.: 000-000-0000, Attention: Xxxxxxx Xxxxxxxx. Notices to the Company shall be
directed to it by mail at Northwest Airlines, Inc., 0000 Xxxxxxxxx Xxxxx, Xx.
Xxxx, Xxxxxxxxx 00000, with a copy to Northwest Airlines Corporation at the same
address, attention of the Senior Vice President and Treasurer, or by delivery to
the Company and the Guarantor at 0000 Xxxx Xxx Xxxxxxx, Xxxxx, Xxxxxxxxx 00000,
attention of Vice President-Finance and Treasurer.
SECTION 12. PARTIES. This Agreement is made solely for the
benefit of the Underwriter, the Company, the Guarantor and, to the extent
expressed, any person controlling the Company, the Guarantor 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.
------------------------------
16
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, the Guarantor and
the Underwriter in accordance with its terms.
Very truly yours,
NORTHWEST AIRLINES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President and Treasurer
NORTHWEST AIRLINES
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President and Treasurer
Accepted as of the date first above written:
By: XXXXXXX XXXXX BARNEY INC
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title:
17
EXHIBIT A to EXHIBIT 1
Form of Opinion of
Xxxxxxx Xxxxxxx & Xxxxxxxx
(i) The Guarantor 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 the Guarantor, 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 the Guarantor, enforceable against the
Company and the Guarantor 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 the Guarantor 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 the Guarantor, enforceable against the Guarantor
in accordance with their respective terms.
(v) The statements made in the Prospectus under the captions
"Description of Notes" and "Description of Debt Securities," insofar as
they purport to constitute summaries of certain terms of the Notes, the
Guarantees and the Indenture specifically referred to therein,
constitute accurate summaries of such terms in all material respects.
(vi) This Agreement has been duly authorized, executed and
delivered by each of the Company and the Guarantor.
(vii) 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 in the manner contemplated by this Agreement, except
for the registration under the Securities Act of the Notes and the
Guarantees, and such consents, approvals, authorizations, registrations
or qualifications as may be required
18
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Notes and the Guarantees by the Underwriter.
(viii) Neither the Company nor the Guarantor is, 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 the
Guarantor will 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.
(ix) 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 the Guarantor 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 the
Guarantor, with representatives of the independent public accountants for the
Company and the Guarantor and with counsel to the Company and the Guarantor.
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 the Guarantor and with counsel to the Company and
the Guarantor 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 May 24, 2001, 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
19
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 May 24, 2001 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.
20
EXHIBIT B to EXHIBIT 1
Form of Opinion of the General Counsel
of the Guarantor 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) The Guarantor 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 the Guarantor, 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 the Guarantor and the
Company of this Agreement and the Indenture, the issuance and sale of
the Notes and the related Guarantees, the consummation by the Guarantor
and the Company of the transactions contemplated by this Agreement and
the Designated Indenture and compliance by the Company and the
Guarantor with the terms hereof and thereof do not and will not result
21
in any violation of the charter or by-laws of the Company or the
Guarantor, 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 the Guarantor 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 the Guarantor (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 the
Guarantor or any of their respective properties.
(vii) Under any provision of law or regulation applicable to
the Company or the Guarantor 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 or the related Guarantees, the valid
authorization, execution and delivery by the Company and the Guarantor
of, and the performance by the Company and the Guarantor of their
respective obligations under, this Agreement and the Designated
Indenture, 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 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 the
Guarantor, counsel employed by the Company and the Guarantor, representatives of
the independent public accountants for the Company and the Guarantor,
22
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.
23
