exv4w4







Exhibit 4.4




EXECUTION VERSION




Amendment No. 1 to



INTERCREDITOR AGREEMENT



(2010-2)



Dated as of February 14, 2011



among



DELTA AIR LINES, INC.,



U.S. BANK TRUST NATIONAL ASSOCIATION

as Trustee of

the Delta Air Lines Pass Through Trust 2010-2A and

the Delta Air Lines Pass Through Trust 2010-2B,

and to the extent expressly set forth herein, in its individual capacity




NATIXIS S.A., ACTING VIA ITS NEW YORK BRANCH

as Class A Liquidity Provider and

Class B Liquidity Provider,



and



U.S. BANK TRUST NATIONAL ASSOCIATION

as Subordination Agent



Amendment No. 1 to Intercreditor Agreement (2010-2)

(2010-2B EETC)








 









 








AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT




          This AMENDMENT NO. 1 TO INTERCREDITOR AGREEMENT (this “Amendment”), dated as of February 14,
2011, is made by and among DELTA AIR LINES, INC., a Delaware corporation (together with its
successors and permitted assigns, “Delta”), U.S. BANK TRUST NATIONAL ASSOCIATION, a national
banking association (in its individual capacity, together with its successors and permitted
assigns, “U.S. Bank”), not in its individual capacity, except as expressly set forth herein, but
solely as Class A Trustee and Class B Trustee (such term and other capitalized terms used herein
without definition being defined as provided in Article I of the Intercreditor Agreement, as
amended by Section 1.01 hereof); NATIXIS S.A., a société anonyme organized under the laws of
France, acting via its New York Branch (“Natixis”), as Class A Liquidity Provider and Class B
Liquidity Provider; and U.S. BANK TRUST NATIONAL ASSOCIATION, not in its individual capacity except
as expressly set forth herein, but solely as Subordination Agent and trustee hereunder (in such
capacity, together with any successor appointed pursuant to Article VII of the Intercreditor
Agreement, the “Subordination Agent”).




          WHEREAS, the Class A Trustee, the Class A Liquidity Provider and the Subordination Agent
entered into that certain Intercreditor Agreement, dated as of November 22, 2010 (the
“Intercreditor Agreement”);




          WHEREAS, Delta had a right to issue Series B Equipment Notes pursuant to the terms of Section
2.02 of each Indenture (in the case of any Funded Aircraft (as defined in the Note Purchase
Agreement, as in effect immediately prior to the date hereof)) and Section 4(a)(v) of the Note
Purchase Agreement (as in effect immediately prior to the date hereof) and, pursuant to Section
8.01(d) of the Intercreditor Agreement (as in effect immediately prior to the date hereof), the
Intercreditor Agreement shall be amended by written agreement of Delta and the Subordination Agent
to give effect to the issuance of any Class B Certificates, and the Class B Trustee and the Class B
Liquidity Provider shall be added as parties to the Intercreditor Agreement;




          WHEREAS, Delta has entered into a Trust Supplement with respect to the Class B Trust in
connection with the issuance of the Class B Certificates to provide financing for the purchase by
the Class B Trustee of the Series B Equipment Notes, in respect of, and secured by a security
interest in, the Aircraft;




          WHEREAS, the Trust created by the Class B Trust Agreement proposes to issue the Class B
Certificates bearing the interest rate and having the final distribution date described in the
Class B Trust Agreement on the terms and subject to the conditions set forth therein;




          WHEREAS, pursuant to the Class B Underwriting Agreement, the Class B Underwriters propose to
purchase the Class B Certificates; and




          WHEREAS, it is a condition precedent to the obligations of the Class B Underwriters under the
Class B Underwriting Agreement that this Amendment be executed and delivered by each party hereto;




Amendment No. 1 to Intercreditor Agreement (2010-2)

(2010-2B EETC)




1









 








          NOW, THEREFORE, in consideration of the mutual agreements herein contained, and of other good
and valuable consideration the receipt and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:




ARTICLE I — AMENDMENTS TO THE INTERCREDITOR AGREEMENT




          Section 1.01. (a) Section 1.01(a) of the Intercreditor Agreement is amended as
follows:





          (i) The definition of “Certificate” is amended by deleting the phrase “, if issued,”.




          (ii) The definition of “Class B Adjusted Interest” is amended by replacing each
instance of the phrase “(or, if the Current Distribution Date is the first Distribution
Date, the Closing Date)” with “(or, if the Current Distribution Date is the first
Distribution Date, the Class B Issuance Date)”.




          (iii) The definition of “Class B Cash Collateral Account” is amended by deleting the
phrase “, if and when such account is created”.




          (iv) The definition of “Class B Certificates” is deleted in its entirety and replaced
by the following:




     “Class B Certificates” means the certificates issued by the Class B Trust,
substantially in the form of Exhibit A to the Class B Trust Agreement, and
authenticated by the Class B Trustee, representing Fractional Undivided Interests in
the Class B Trust, and any certificates issued in exchange therefor or replacement
thereof pursuant to the terms of the Class B Trust Agreement.




          (v) The definition of “Class B Liquidity Facility” is deleted in its entirety and
replaced by the following:



          “Class B Liquidity Facility” means, initially, the Revolving Credit Agreement (2010-2B), dated
as of the Class B Issuance Date, between the Subordination Agent, as agent and trustee for the
Class B Trustee, and Natixis and, from and after the replacement of such agreement pursuant hereto,
the Replacement Liquidity Facility therefor, if any, in each case as amended, supplemented or
otherwise modified from time to time in accordance with its terms; provided that, for
purposes of any obligation of Delta, no amendment, modification or supplement to, or substitution
or replacement of, any Class B Liquidity Facility shall be effective unless consented to by Delta.





          (vi) The definition of “Class B Liquidity Provider” is amended by replacing “the
initial provider of any Class B Liquidity Facility, if any” with “Natixis”.




          (vii) The definition of “Class B Trust” is amended by replacing the phrase “, if and
when created,” with “created and”.



Amendment No. 1 to Intercreditor Agreement (2010-2)

(2010-2B EETC)




2









 








               (viii) The definition of “Class B Trust Agreement” is deleted in its entirety and
replaced by the following:




     “Class B Trust Agreement” means the Basic Agreement, as supplemented by Trust
Supplement No. 2010-2B thereto, dated as of the Class B Issuance Date, governing the
creation and administration of the Class B Trust and the issuance of the Class B
Certificates, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with its terms.




          (ix) The definition of “Class B Trustee” is amended by deleting the phrase “if any,”.




          (x) The definition of “Deposit Agreement” is deleted in its entirety and replaced by
the following:




     “Deposit Agreement” means, subject to Section 5 of the Note Purchase Agreement,
with respect to any Class of Certificates, the Deposit Agreement pertaining to such
Class, (i) in the case of the Class A Certificates, dated as of November 22, 2010
and (ii) in the case of the Class B Certificates, dated as of the Class B Issuance
Date, in each case between the Escrow Agent and the Depositary, in each case as the
same may be amended, modified or supplemented from time to time in accordance with
the terms thereof.




          (xi) The definition of “Depositary” is amended by replacing the word “the” before
“Deposit Agreement” with “each”.




          (xii) The definition of “Deposits” is deleted in its entirety and replaced by the
following:




     “Deposits” with respect to any Class of Certificates has the meaning set forth
in the Deposit Agreement pertaining to such Class.




          (xiii) The definition of “Equipment Notes” is amended by deleting the phrase “, if
issued,”.




          (xiv) The definition of “Escrow and Paying Agent Agreement” is deleted in its entirety
and replaced by the following:




     “Escrow and Paying Agent Agreement” means, with respect to any Class of
Certificates, the Escrow and Paying Agent Agreement pertaining to such Class, (i) in
the case of the Class A Certificates, dated as of November 22, 2010 among the Escrow
Agent, the Underwriters, the Class A Trustee and the Paying Agent, and (ii) in the
case of the Class B Certificates, dated as of the Class B Issuance Date among the
Escrow Agent, the Class B Underwriters, the Class B Trustee and the Paying Agent, in
each case as the same may be amended, modified or supplemented from time to time in
accordance with the terms thereof.



Amendment No. 1 to Intercreditor Agreement (2010-2)

(2010-2B EETC)





3









 









          (xv) The definition of “Escrow Receipts” is deleted in its entirety and replaced by the
following:




     “Escrow Receipts” has the meaning assigned to such term in the Escrow and
Paying Agent Agreement for the Class A Trust or the Class B Trust, as applicable.




          (xvi) The definition of “Expected Distributions” is amended by (A) deleting the phrase
“in the case of the Class A Certificates” in the first sentence thereof and (B) replacing
the phrase “the Class A Certificates)” at the end of the first sentence thereof with “the
Certificates of such Trust)”.




          (xvii) The definition of “Final Distributions” is amended by (A) deleting the phrase “,
in the case of the Class A Certificates,” in each of clause (x) and clause (y) thereof, (B)
adding the phrase “relating to such Trust” after “the Deposits” in clause (x) thereof and
(C) adding the phrase “for such Class of Certificates” after “the amount of Deposits” in
clause (y) thereof.




          (xviii) The definition of “Final Legal Distribution Date” is amended by replacing the
phrase “a date to be determined as such for the Class B Certificates” with “May 23, 2017”.




          (xix) The definition of “Liquidity Provider” is amended by deleting the phrase “, if
the Class B Liquidity Facility shall have been provided,”.




          (xx) The definition of “Pool Balance” is amended by (A) deleting the phrase “(in the
case of the Class A Certificates)” in each of the two sentences thereof and (B) adding the
phrase “relating to such Class” after “Deposits” in the first sentence thereof.




          (xxi) The definition of “Rating Agencies” is amended by deleting the phrase “Class A”
in the second sentence thereof.




          (xxii) The definition of “Stated Interest Rate” is amended by replacing the phrase “the
rate per annum determined as such for the Class B Certificates” with “6.75% per annum”.




          (xxiii) The definition of “Trust” is amended by deleting the phrase “, if created,”.




          (xxiv) The definition of “Trustee” is amended by deleting the phrase “, if the Class B
Trust shall have been created,”.



          (b) For purposes of the Intercreditor Agreement, unless the context otherwise requires, the
following capitalized terms shall have the following meanings:




          “Class B Issuance Date” means February 14, 2011.




Amendment No. 1 to Intercreditor Agreement (2010-2)

(2010-2B EETC)




4









 








          “Class B Underwriters” means Morgan Stanley & Co. Incorporated, Deutsche Bank Securities Inc.
and Goldman, Sachs & Co.




          “Class B Underwriting Agreement” means the Underwriting Agreement, dated February 7, 2011
among Morgan Stanley & Co. Incorporated, Deutsche Bank Securities Inc. and Goldman, Sachs & Co., as
representatives of the Class B Underwriters, and Delta, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.




          Section 1.02. Section 2.01(a) of the Intercreditor Agreement is amended by deleting
the phrase “, upon accession hereto,” in each of the two sentences thereof.




          Section 1.03. Section 2.01(b) of the Intercreditor Agreement is amended by (A)
deleting the phrase “, upon accession hereto,” and (B) replacing the phrase “(in the case of the
Class A Certificateholders only) the Deposits” with “the relevant Deposits”.




          Section 1.04. Section 2.04(a) of the Intercreditor Agreement is amended by (A) adding
the phrase “(excluding interest, if any, payable with respect to the Deposits relating to the Class
B Trust)” after “the Class B Certificates” in sub-paragraph (iv) thereof and (B) adding the phrase
“in each case excluding interest, if any, payable with respect to Deposits relating to the Class B
Trust,” after “prepaid,” in sub-paragraph (v) thereof.




          Section 1.05. Section 2.04(c) of the Intercreditor Agreement is amended by replacing
the word “the” before each of “Paying Agent”, “Depositary” and “Escrow Agent” with “any”.




          Section 1.06. Section 2.05(a) of the Intercreditor Agreement is amended by replacing
the phrase “the Class A Trustee” with “each Trustee”.




          Section 1.07. Section 2.05(c) of the Intercreditor Agreement is amended by deleting
the phrase “(or in the case of the Class B Liquidity Provider, upon the accession hereto)”.




          Section 1.08. Section 3.01(a)(ii) of the Intercreditor Agreement is amended by
deleting the phrase “if issued,”.




          Section 1.09. Section 3.02 of the Intercreditor Agreement is amended by (A) adding the
phrase “relating to the Class A Trust” after “the Deposits” in clause “seventh” thereof,
(B) adding the phrase “(excluding interest, if any, payable with respect to the Deposits relating
to the Class B Trust)” after “the Class B Certificates” in clause “eighth” thereof and (C)
adding the phrase “(excluding interest, if any, payable with respect to the Deposits relating to
the Class B Trust)” after the second occurrence of the phrase “the Class B Certificates” in clause
“tenth” thereof.




          Section 1.10. Section 3.05(a) of the Intercreditor Agreement is amended by adding the
phrase “or the Class B Certificates” after “due and payable on the Class A Certificates”.




Amendment No. 1 to Intercreditor Agreement (2010-2)

(2010-2B EETC)





5









 








          Section 1.11. Section 3.05(e)(i) of the Intercreditor Agreement is amended by adding
the phrase “(including as a result of a refinancing of the Class B Certificates)” after “if the
initial Liquidity Provider is replaced”.




          Section 1.12. Section 3.05(f)(ii) of the Intercreditor Agreement is amended by adding
the phrase “(other than any amount of interest which was due and payable on the Class B
Certificates on such Distribution Date but which remains unpaid due to the failure of the
Depositary to pay any amount of accrued interest on the Deposits on
such Distribution Date)” after “(at the Stated Rate for the Class B Certificates)”.




          Section 1.13. Sections 3.05(f)(iii) of the Intercreditor Agreement is amended by
adding the phrase “for such Class” after “the Escrow and Paying Agent Agreement”.




          Section 1.14. Section 6.01 of the Intercreditor Agreement is amended by deleting the
phrase “, upon the accession hereto,”.




          Section 1.15. Section 8.01(c)(iii) and the last paragraph of Section 8.01(c) of the
Intercreditor Agreement is amended by deleting each of the two phrases “, if any” from each of such
provisions.




          Section 1.16. Section 8.01(e) of the Intercreditor Agreement is deleted in its
entirety and replaced by the following:




          (e) The parties hereto agree that upon the issuance and sale of the Class B
Certificates on the Class B Issuance Date, the provisions of Section 8.01(d) shall be of no
effect and shall be disregarded.




          Section 1.17. Section 9.11(c) of the Intercreditor Agreement is amended by deleting
the phrase “, upon the accession hereto,”.




ARTICLE II — MISCELLANEOUS




          Section 2.01. Amendment; Consent.




          (a) Each party hereto (including U.S. Bank in its individual capacity) agrees that this
Amendment is entered into pursuant to and consistent with Section 8.01 of the Intercreditor
Agreement.




          (b) The Class A Liquidity Provider hereby consents to the issuance of the Class B Certificates
in accordance with clause (y) of Section 8.01(d) of the Intercreditor Agreement (in effect
immediately prior to the date hereof).




          Section 2.02. Effect on the Intercreditor Agreement. Except as specifically
amended by this Amendment, the Intercreditor Agreement shall remain in full force and effect and
the Intercreditor Agreement, as amended by this Amendment, is hereby ratified and affirmed in all
respects. On and after the date hereof, each reference in the Intercreditor Agreement to “this
Agreement,” “herein,” “hereunder” or words of similar import shall mean and be a reference to the
Intercreditor Agreement as amended by this Amendment.




Amendment No. 1 to Intercreditor Agreement (2010-2)

(2010-2B EETC)




6









 








          Section 2.03. Class B Trustee; Class B Liquidity Provider.




          (a) Effective as of the date hereof, U.S. Bank, as Class B Trustee, shall be deemed to be a
party to the Intercreditor Agreement, as amended hereby, and shall have all of the rights and
obligations of the Class B Trustee under the Intercreditor Agreement, as amended hereby, and under
the other Operative Agreements.




          (b) Effective as of the date hereof, Natixis, as Class B Liquidity Provider, shall be deemed
to be a party to the Intercreditor Agreement, as amended hereby, and shall have all of the rights
and obligations of the Class B Liquidity Provider under the Intercreditor Agreement, as amended
hereby, and under the other Operative Agreements.




          Section 2.04. Severability. To the extent permitted by applicable law, any
provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.




          Section 2.05. Counterparts. This Amendment may be executed in any number of
counterparts (and each party shall not be required to execute the same counterpart). Each
counterpart of this Amendment including a signature page or pages executed by each of the parties
hereto shall be an original counterpart of this Amendment, but all of such counterparts together
constitute one instrument.




          Section 2.06. Governing Law. THIS AMENDMENT HAS BEEN DELIVERED IN THE STATE OF
NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW
YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.




[Remainder of Page Intentionally Left Blank]




Amendment No. 1 to Intercreditor Agreement (2010-2)

(2010-2B EETC)





7









 








          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective officers thereunto duly authorized, as of the date first above written.




	 	 	 	 	 
	 	DELTA AIR LINES, INC.

 	 
	 	By:  	/s/ Paul A. Jacobson
 	 
	 	 	Name:  	Paul A. Jacobson 	 
	 	 	Title:  	Senior Vice President and Treasurer 	 
	 
	 	U.S. BANK TRUST NATIONAL
ASSOCIATION,
 as Class A
Trustee and Class B Trustee and, to the
 extent
expressly set forth herein, in its individual

capacity

 	 
	 	By:  	/s/ John G. Correia
 	 
	 	 	Name:  	John G. Correia 	 
	 	 	Title:  	Vice President 	 
	 
	 	NATIXIS S.A., ACTING VIA ITS NEW YORK
 BRANCH, as
Class A Liquidity Provider and Class
B Liquidity
Provider

 	 
	 	By:  	/s/ Jerome Le Jamtel
 	 
	 	 	Name:  	Jerome Le Jamtel 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	                                              /s/ Lily Cheung
 	 
	 	 	Name:  	Lily Cheung 	 
	 	 	Title:  	Director
Natixis 	 
	 
	 	U.S. BANK TRUST NATIONAL ASSOCIATION,

as Subordination Agent

 	 
	 	By:  	/s/ John G. Correia
 	 
	 	 	Name:  	John G. Correia 	 
	 	 	Title:  	Vice President 	 
	 



Amendment No. 1 to Intercreditor Agreement (2010-2)

(2010-2 EETC)