Exhibit 4(b)(3)
EXECUTION COPY
This Trust Supplement No. 2002-1C-1, dated as of August 5, 2002
(herein called the "Trust Supplement"), by and among Northwest Airlines
Corporation, a Delaware corporation (the "Guarantor"), Northwest Airlines,
Inc., a Minnesota corporation (the "Company"), and State Street Bank and Trust
Company of Connecticut, National Association (the "Trustee"), to the Pass
Through Trust Agreement, dated as of June 3, 1999, by and among the Guarantor,
the Company and the Trustee (the "Basic Agreement").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Basic Agreement, unlimited as to the aggregate
principal amount of Certificates which may be issued thereunder, has
heretofore been executed and delivered;
WHEREAS, unless otherwise specified herein, capitalized terms used
herein without definition having the respective meanings specified heretofore
in the Basic Agreement;
WHEREAS, the Company intends to finance or refinance the acquisition
of eleven new Airbus A319-100 aircraft, six new Boeing 757-300 aircraft and
three new Airbus 330-300 aircraft (the "Aircraft"), as selected by the Company
out of the fifteen Airbus A319-100 aircraft, eleven Boeing 757-300 aircraft
and six Airbus A330-300 aircraft scheduled for delivery from October 2002
through December 2003 (the "Eligible Aircraft"), either (i) through separate
secured loan transactions, in which case the Company will own such aircraft
(collectively, the "Owned Aircraft") or (ii) through separate leveraged lease
transactions, in which case the Company will lease such aircraft
(collectively, the "Leased Aircraft");
WHEREAS, in the case of an Owned Aircraft, the Company will issue
Equipment Notes to finance a portion of the purchase price of such Owned
Aircraft;
WHEREAS, in the case of a Leased Aircraft, each Owner Trustee,
acting on behalf of its respective Owner Participant, will issue, on a
non-recourse basis, Equipment Notes, among other things, to finance a portion
of the purchase price of such Leased Aircraft;
WHEREAS, pursuant to the terms and conditions of the Basic Agreement
as supplemented by this Trust Supplement (the "Agreement"), the Trustee shall
purchase such Equipment Notes issued by the Company having the same interest
rate as, and final maturity dates not later than the final Regular
Distribution Date of, the Certificates issued hereunder and shall hold such
Equipment Notes in trust for the benefit of the Certificateholders;
WHEREAS, the Trustee hereby declares the creation of this Trust (the
"2002-1C-1 Trust" or the "Applicable Trust") for the benefit of the Applicable
Certificateholders, and the initial Applicable Certificateholders as the
grantors of the 2002-1C-1 Trust, by their respective acceptances of the
Applicable Certificates, join in the creation of this 2002-1C-1 Trust with the
Trustee;
WHEREAS, all of the conditions and requirements necessary to make
this Trust Supplement, when duly executed and delivered, a valid, binding and
legal instrument in accordance with its terms and for the purposes herein
expressed, have been done, performed and
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fulfilled, and the execution and delivery of this Trust Supplement in the form
and with the terms hereof have been in all respects duly authorized; and
WHEREAS, this Trust Supplement is subject to the provisions of the
Trust Indenture Act of 1939, as amended, and shall, to the extent applicable,
be governed by such provisions.
NOW THEREFORE, in consideration of the premises herein, it is agreed
by and among the Guarantor, the Company and the Trustee as follows:
ARTICLE I
THE CERTIFICATES
Section 1.01. The Certificates. There is hereby created a series of
Certificates to be issued under the Agreement to be distinguished and known as
"Pass Through Certificates, Series 2002-1C-1" (hereinafter defined as the
"Series 2002-1C-1 Certificates" or the "Applicable Certificates"). Each Series
2002-1C-1 Certificate represents a Fractional Undivided Interest in the
2002-1C-1 Trust created hereby.
The terms and conditions applicable to the Series 2002-1C-1
Certificates are as follows:
(a) The aggregate principal amount of the Series 2002-1C-1
Certificates that shall be authenticated under the Agreement (except for
Series 2002-1C-1 Certificates authenticated and delivered pursuant to
Sections 3.03, 3.04 and 3.05 of the Basic Agreement) upon their initial
issuance is $56,000,000.
(b) The Cut-off Date is the earliest of (a) Xxxxx 00, 0000, (x) the
date on which Equipment Notes with respect to all the Aircraft have been
acquired pursuant to the Note Purchase Agreement and (c) the date on
which a Triggering Event occurs.
(c) The Regular Distribution Dates with respect to any payment of
Scheduled Payments means each February 20, May 20, August 20 and November
20, commencing on August 20, 2002, until payment of all of the Scheduled
Payments to be made under the Equipment Notes has been made.
(d) The Special Distribution Dates with respect to the Series C-1
Certificates shall be each Business Day on which a Special Payment is to
be distributed pursuant to this Agreement.
(e) (i) The Series 2002-1C-1 Certificates shall be in the form
attached hereto as Exhibit A. Each purchaser of Series 2002-1C-1
Certificates, by its acceptance of such Certificate or its interest
therein, will be deemed to represent and warrant to and for the benefit
of the Company that either (x) the assets of an employee benefit plan
subject to Title I of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), of a plan subject to Section 4975 of the
Internal Revenue Code of 1986, as amended (the "Code"), of entities which
may be deemed to hold such plans' assets, or of another employee benefit
plan not subject to ERISA or Section 4975 of the Code (such as
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a governmental, church or non-U.S. plan) have not been used to purchase
Series 2002-1C-1 Certificates or (y) one or more prohibited transaction
statutory or administrative exemptions applies such that the use of such
plan assets to purchase and hold such Certificate will not constitute a
non-exempt prohibited transaction under ERISA or Section 4975 of the Code
or a violation under any federal, state or local law that is
substantially similar to the provisions of Title I of ERISA or Section
4975 of the Code.
(ii) The Series 2002-1C-1 Certificates shall be Book-Entry
Certificates, which shall be subject to the conditions set forth in the Letter
of Representations among the Guarantor, the Company and the Depository Trust
Company (the "DTC") attached hereto as Exhibit B.
(f) The Scheduled Payments of principal shall be as set forth in
Exhibit C hereto.
(g) The proceeds of the Series 2002-1C-1 Certificates shall be
deposited in the Deposit Accounts and will be used in accordance with the
Escrow Agreement and the Deposit Agreement.
(h) Upon the delivery of each Aircraft (other than a Selected
Aircraft) with respect to which Series C-1 Equipment Notes are to be
issued, the Company will issue on a recourse basis the Series C-1
Equipment Notes, the proceeds of which shall be used, among other things,
to finance or refinance a portion of the purchase price of such Aircraft.
(i) At the Escrow Agent's request under the Escrow Agreement, the
Trustee shall affix the corresponding Escrow Receipt to each Series
2002-1C-1 Certificate. In any event, any transfer or exchange of any
Series 2002-1C-1 Certificate shall also effect a transfer or exchange of
the related Escrow Receipt. Prior to the Final Withdrawal Date, no
transfer or exchange of any Series 2002-1C-1 Certificate shall be
permitted unless the corresponding Escrow Receipt is attached thereto and
also is so transferred or exchanged. By acceptance of any Series
2002-1C-1 Certificate to which an Escrow Receipt is attached, each
Certificateholder of such a Series 2002-1C-1 Certificate acknowledges and
accepts the restrictions on transfer of the Escrow Receipt set forth
herein and in the Escrow Agreement.
Section 1.02. Intercreditor Agreement, Deposit Agreement and Escrow
Agreement. The Series 2002-1C-1 Certificates are subject to the Intercreditor
Agreement, the Deposit Agreement and the Escrow Agreement.
Section 1.03. Ranking of Series 2002-1C-1 Certificates. The Series
2002-1C-1 Certificates will be subject to the ranking and priority as set
forth in the Intercreditor Agreement.
Section 1.04. Liquidity Facility. Payments of interest on the Series
2002-1C-1 Certificates will be supported by the Primary Liquidity Facility to
be provided by the Primary Liquidity Provider and the Above-Cap Liquidity
Facility to be provided by the Above-Cap Liquidity Provider, in each case for
the benefit of the Applicable Certificateholders.
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Section 1.05. No Cross-Default or Cross-Collateralization of
Equipment Notes. As set forth in the related Indenture, there will not be any
cross-collateralization provisions or cross-default provisions in respect of
the Equipment Notes.
ARTICLE II
PREDELIVERY FUNDING AND
STATEMENT OF INTENT
Section 2.01. Predelivery Funding. On the date hereof, the proceeds
from the issuance of the Applicable Certificates will be deposited in the
Deposit Accounts on behalf of the Escrow Agent. Pursuant to the terms of the
Deposit Agreement and the Note Purchase Agreement, a portion of the proceeds
from the issuance of the Applicable Certificates will be withdrawn from one or
more Deposit Accounts on any date on which the Company issues Equipment Notes
with respect to an Aircraft.
Section 2.02. Statement of Intent. The parties hereto intend that
the Applicable Trust be classified for U.S. federal income tax purposes as a
grantor trust under Subpart E, Part I of Subchapter J of the Code and not as a
trust or association taxable as a corporation or a partnership. Each of the
parties hereto and each Applicable Certificateholder, or beneficial owner of
an Applicable Certificate, by its acceptance of its Applicable Certificate or
a beneficial interest therein, agrees to treat for all U.S. federal, state and
local income tax purposes (i) the Applicable Trust as a grantor trust and (ii)
Equipment Notes issued by the Company as indebtedness of the Company.
Section 2.03. Activities of Trust. (a) Other than in connection with
the transactions contemplated by this Agreement or the Note Documents, the
Trustee, on behalf of the Applicable Trust, shall not (i) borrow money or
issue debt or (ii) merge with another entity, reorganize, liquidate or sell
its assets.
(b) The activities of the Trustee on behalf of the Applicable Trust
shall be limited to those activities authorized by this Agreement or the Note
Documents.
ARTICLE III
DEFINITIONS
Section 3.01. Definitions. (a) For all purposes of the Basic
Agreement as supplemented by this Trust Supplement, the following capitalized
terms have the following meanings:
Above-Cap Liquidity Facility: Means, initially, the ISDA Master
Agreement, dated as of August 5, 2002, between the Subordination Agent,
as agent of the Trustee, and the Above-Cap Liquidity Provider, together
with the Schedule and Confirmation attached thereto relating to the
Applicable Certificates, and, from and after the replacement of such ISDA
Master Agreement pursuant thereto, the replacement above-cap liquidity
facility therefor, if any, in each case as amended, supplemented or
otherwise modified from time to time in accordance with their respective
terms.
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Above-Cap Liquidity Provider: Means Credit Suisse First Boston
International, together with any Replacement Above-Cap Liquidity Provider
which has issued a Replacement Above-Cap Liquidity Facility to replace
any Class C-1 Above-Cap Liquidity Facility (each as defined in the
Intercreditor Agreement) pursuant to Section 3.6(c)(ii) of the
Intercreditor Agreement.
Aircraft: Has the meaning specified in the Note Purchase Agreement.
Applicable Certificateholder: Means the holder of an Applicable
Certificate.
Applicable Certificates: As defined in Section 1.01.
Break Amount: Has the meaning specified in each relevant Indenture.
Business Day: Means any day, other than a Saturday, Sunday or other
day on which commercial banks are authorized or required to close in New
York, New York, Minneapolis, Minnesota, Boston, Massachusetts, or Salt
Lake City, Utah.
Class D Certificateholder: Means the holder of a Class D
Certificate.
Class D Certificates: Has the meaning specified in the Intercreditor
Agreement.
Class D Notice: Has the meaning specified in the Note Purchase
Agreement.
Closing Notice: Has the meaning specified in the Note Purchase
Agreement.
Cut-off Date: Has the meaning specified in Section 1.01(b).
Deposit Account: Means an account established under Section 1.2 of
the Deposit Agreement.
Deposit Agreement: Means the Deposit Agreement dated as of August 5,
2002 relating to the Applicable Certificates between the Depositary and
the Escrow Agent, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
Deposit Break Amount: Has the meaning specified in the Note Purchase
Agreement.
Depositary: Means Credit Suisse First Boston, New York Branch, and
any replacement or successor therefor.
Deposits: Has the meaning specified in the Note Purchase Agreement.
Distribution Date: Means any Regular Distribution Date or Special
Distribution Date.
DTC: Has the meaning specified in Section 1.01(e) hereof.
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DTC Participant: Means any of the participants in the DTC.
Eligible Aircraft: Has the meaning specified in the Note Purchase
Agreement.
Escrow Agent: Means Xxxxx Fargo Bank Northwest, National
Association, and any replacement or successor therefor appointed in
accordance with the Escrow Agreement.
Escrow Agreement: Means the Escrow and Paying Agent Agreement dated
as of August 5, 2002 relating to the Applicable Certificates, among the
Escrow Agent, the Paying Agent, the Trustee and the Underwriters, as the
same may be amended, supplemented or otherwise modified from time to time
in accordance with its terms.
Escrow Receipt: Means the receipt substantially in the form annexed
to the Escrow Agreement representing a fractional undivided interest in
the funds held in the Paying Agent Account (as defined in the Escrow
Agreement).
Final Withdrawal: With respect to the Escrow Agreement, has the
meaning set forth in Section 1.2 thereof.
Final Withdrawal Date: Means the date on which the Final Withdrawal
occurs.
Intercreditor Agreement: Means the Intercreditor Agreement, dated as
of the date hereof, by and among the Trustee, the Other Trustee, the
Liquidity Providers named therein, the Policy Provider and State Street
Bank and Trust Company, as Subordination Agent.
Leased Aircraft: Has the meaning specified in the recitals hereto.
Luxembourg Paying Agent: Has the meaning specified in Section 4.08
of this Trust Supplement.
Note Documents: With respect to any Equipment Note, means the Note
Purchase Agreement, the related Indenture, the related Participation
Agreement, and, if the related Aircraft is leased to the Company, the
related Lease.
Note Purchase Agreement: Means the Note Purchase Agreement, dated as
of the date hereof, among the Company, the Trustee, the Other Trustee,
State Street Bank and Trust Company, as Subordination Agent, the Escrow
Agent and the Paying Agent.
Notice of Purchase Withdrawal: Has the meaning specified in the
Deposit Agreement.
Notice of Series D Non-Issuance Withdrawal: Has the meaning
specified in the Deposit Agreement.
Other Agreement: Means the Basic Agreement as supplemented by Trust
Supplement No. 2002-1C-2 (the "2002-1C-2 Trust Supplement") dated the
date hereof
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relating to Northwest Airlines 2002-1C-2 Pass Through Trust, by Trust
Supplement No. 2002-1G-1 (the "2002-1G-1 Trust Supplement") dated the
date hereof relating to the Northwest Airlines 2002-1G-1 Pass Through
Trust, by Trust Supplement No. 2002-1G-2 (the "2002-1G-2 Trust
Supplement") dated the date hereof relating to the Northwest Airlines
2002-1G-2 Pass Through Trust and, upon execution thereof, by Trust
Supplement No. 2002-1D (the "2002-1D Trust Supplement") relating to the
Northwest Airlines 2002-1D Pass Through Trust.
Other Trustee: Means the trustee under the Other Agreement, and any
successor or other trustee appointed as provided therein.
Owned Aircraft: Has the meaning specified in the recitals hereto.
Participation Agreement: Has the meaning specified in the Note
Purchase Agreement.
Paying Agent: Means State Street Bank and Trust Company.
Policy Provider: Means MBIA Insurance Corporation, and any
replacement or successor thereof appointed in accordance with the Policy
Provider Agreement.
Policy Provider Agreement: Has the meaning specified in the
Intercreditor Agreement.
Pool Balance: Means, as of any date, (i) the original aggregate face
amount of the Applicable Certificates less (ii) the aggregate amount of
all payments made in respect of such Applicable Certificates or in
respect of Deposits relating to the Applicable Trust other than payments
made in respect of interest, Break Amount, Deposit Break Amount or
premium thereon or reimbursement of any costs or expenses incurred in
connection therewith. The Pool Balance as of any Distribution Date will
be computed after giving effect to any special distribution with respect
to unused Deposits, payment of principal of the Equipment Notes or
payment with respect to other Trust Property and the distribution thereof
to be made on that date.
Pool Factor: Means, as of any Distribution Date, the quotient
(rounded to the seventh decimal place) computed by dividing (i) the Pool
Balance by (ii) the original aggregate face amount of the Applicable
Certificates. The Pool Factor as of any Distribution Date shall be
computed after giving effect to any special distribution with respect to
unused Deposits, payment of principal of the Equipment Notes or other
Trust Property and the distribution thereof to be made on that date.
Prepayment Premium: Has the meaning specified in each relevant
Indenture.
Primary Liquidity Facility: Means the Revolving Credit Agreement
dated as of August 5, 2002 relating to the Applicable Certificates,
between the Primary Liquidity Provider and State Street Bank and Trust,
as Subordination Agent, as agent and trustee for the Applicable Trust,
and, from and after the replacement of such agreement pursuant to the
Intercreditor Agreement, the replacement liquidity facility therefore, in
each case
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as amended, supplemented or otherwise modified from time to time in
accordance with their respective terms.
Primary Liquidity Provider: Means Westdeutsche Landesbank
Girozentrale, New York Branch, and any replacements or successors
therefore appointed in accordance with the Intercreditor Agreement.
Prospectus Supplement: Means the Prospectus Supplement dated July
29, 2002, relating to the offering of the Class G-1 Certificates, the
Class G-2 Certificates, the Class C-1 Certificates and the Class C-2
Certificates (each as defined in the Intercreditor Agreement).
Receiptholder: Has the meaning specified in the Escrow Agreement.
Record Date: Means the fifteenth day preceding any Distribution Date
on which the Applicable Certificateholders are determined for purposes of
the distribution which will occur on such Distribution Date.
Scheduled Closing Date: Has the meaning specified in the Note
Purchase Agreement.
Scheduled Payment: Has the meaning specified in the Intercreditor
Agreement.
Selected Aircraft: Has the meaning specified in the Note Purchase
Agreement.
Series D Non-Issuance Withdrawal: Has the meaning specified in the
Deposit Agreement.
Special Payment: Means any payment (other than a Scheduled Payment)
in respect of, or any proceeds of, any Equipment Note or Trust Indenture
Estate (as defined in each Indenture).
Special Redemption Premium: Means the Deposit Break Amount payable
by the Company in respect of a Final Withdrawal or Series D Non-Issuance
Withdrawal pursuant to the Note Purchase Agreement.
Trust Property: Means (i) the Equipment Notes held as the property
of the Applicable Trust and, subject to the Intercreditor Agreement, all
monies at any time paid thereon and all monies due and to become due
thereunder, (ii) the rights of the Applicable Trust under the Escrow
Agreement to request the Escrow Agent to withdraw from the Deposit
Accounts funds sufficient to enable the Applicable Trust to purchase
Equipment Notes on the delivery of an Aircraft, (iii) funds from time to
time deposited in the Certificate Account and the Special Payments
Account, and (iv) all rights of the Applicable Trust and the Trustee, on
behalf of the Applicable Trust, under the Intercreditor Agreement, the
Note Purchase Agreement, the Above-Cap Liquidity Facility and the Primary
Liquidity Facility, including, without limitation, the rights of the
Applicable Trust to acquire Equipment Notes under the Note Purchase
Agreement, all rights to receive certain payments under such documents,
and all monies paid to the
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Trustee on behalf of the Applicable Trust pursuant to the Intercreditor
Agreement, the Above-Cap Liquidity Facility or the Primary Liquidity
Facility.
Trusts: Means, collectively, the Northwest Airlines 2002-1 Pass
Through Trusts to be formed pursuant to the Basic Agreement, as
supplemented by this Trust Supplement and the Other Agreement.
Underwriters: Means the several Underwriters named in and who are
parties to the Underwriting Agreement.
Underwriting Agreement: Means the Underwriting Agreement dated July
29, 2002, by and among the Company, the Guarantor and the Underwriters.
Section 3.02. Other. (a) For purposes of the Applicable Trust, "PTC
Event of Default," as used in the Basic Agreement, shall have the meaning set
forth in the Intercreditor Agreement.
(b) With respect to the Applicable Trust, the definition of the term
"Specified Investments" in the Basic Agreement is amended by adding the
following sentence at the end of such definition:
"State Street Bank and Trust Company of Connecticut, National
Association, in acting as Pass Through Trustee is hereby authorized, in making
or disposing of any investment described herein, to deal with itself (in its
individual capacity) or with any one or more of its affiliates, whether it or
such affiliate is acting as an agent of the Pass Through Trustee or for any
third person or dealing as principal for its own account."
ARTICLE IV
THE TRUSTEE
Section 4.01. Delivery of Documents; Delivery Dates. (a) The Trustee
is hereby directed (i) to execute and deliver the Intercreditor Agreement, the
Escrow Agreement and the Note Purchase Agreement, each in the form delivered
to the Trustee by the Company and (ii) subject to the respective terms
thereof, to perform its obligations thereunder. Upon request of the Company
and the satisfaction or waiver of the closing conditions specified in the
Underwriting Agreement, the Trustee shall execute, deliver, authenticate,
issue and sell Applicable Certificates in authorized denominations equaling in
the aggregate the amount set forth, with respect to the Applicable Trust, in
Schedule I to the Underwriting Agreement evidencing the entire ownership
interest in the Applicable Trust, which amount equals the maximum aggregate
principal amount of Equipment Notes which may be purchased by the Trustee
pursuant to the Note Purchase Agreement. Except as provided in Sections 3.03,
3.04, 3.05 and 3.09 of the Basic Agreement, the Trustee shall not execute,
authenticate or deliver Applicable Certificates in excess of the aggregate
amount specified in this paragraph.
(b) On or after the Issuance Date the Company may deliver from time
to time to the Trustee a Closing Notice relating to one or more Equipment
Notes. After receipt of a Closing Notice and in any case no later than two
Business Days prior to a Scheduled Closing Date as to which such Closing
Notice relates (the "Applicable Delivery Date"), the Trustee shall
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(as and when specified in the Closing Notice) instruct the Escrow Agent to
provide a Notice of Purchase Withdrawal to the Depositary requesting (i) the
withdrawal of all principal amounts from one or more Deposit Accounts on the
Applicable Delivery Date in accordance with and to the extent permitted by the
terms of the Escrow Agreement and the Deposit Agreement and (ii) the payment
of all, or a portion, of the amount withdrawn from such Deposit Account or
Accounts in an amount equal in the aggregate to the purchase price of such
Equipment Notes to or on behalf of the Company, all as shall be described in
the Closing Notice. The Trustee shall (as and when specified in such Closing
Notice), subject to the conditions set forth in Section 3 of the Note Purchase
Agreement, enter into and perform its obligations under the Participation
Agreement specified in such Closing Notice (the "Applicable Participation
Agreement") and cause such certificates, documents and legal opinions relating
to the Trustee to be duly delivered as required by the Applicable
Participation Agreement. If at any time prior to the Applicable Delivery Date,
the Trustee receives a notice of postponement pursuant to Section 2(e) or 2(f)
of the Note Purchase Agreement, then the Trustee shall give the Depositary
(with a copy to the Escrow Agent) a notice of cancellation of such Notice of
Purchase Withdrawal relating to such Deposit Account or Accounts on such
Applicable Delivery Date. Upon satisfaction of the conditions specified in the
Note Purchase Agreement and the Applicable Participation Agreement, the
Trustee shall purchase the applicable Equipment Notes with the proceeds of the
withdrawals from one or more Deposit Accounts made on the Applicable Delivery
Date in accordance with the terms of the Deposit Agreement and the Escrow
Agreement. The purchase price of such Equipment Notes shall equal the
principal amount of such Equipment Notes. Amounts withdrawn from such Deposit
Account or Accounts in excess of the purchase price of the Equipment Notes
(and not otherwise subject to a Series D Non-Issuance Withdrawal) or to the
extent not applied on the Applicable Delivery Date to the purchase price of
the Equipment Notes, shall be re-deposited by the Trustee with the Depositary
on the Applicable Delivery Date in accordance with the terms of the Deposit
Agreement.
(c) If, in respect of an Aircraft, the Company shall deliver to the
Trustee a Class D Notice pursuant to Section 2(b) of the Note Purchase
Agreement specifying that a Series D Non-Issuance Withdrawal will be required
under the Escrow Agreement, the Trustee shall (as and when specified in such
Class D Notice) instruct the Escrow Agent to provide a Notice of Series D
Non-Issuance Withdrawal to the Depositary requesting (i) the withdrawal of
principal amounts from one or more Deposit Accounts in the amounts and on the
date specified in such Class D Notice (together with accrued interest to such
specified date on the amounts so withdrawn) in accordance with and to the
extent permitted by the terms of the Escrow Agreement and the Deposit
Agreement and (ii) the payment to the Paying Agent (for payment to the
Receiptholders in accordance with the Escrow Agreement) of the amounts so
withdrawn from such Deposit Account or Accounts. If at any time prior to the
Applicable Delivery Date the Trustee receives a notice of postponement
pursuant to Section 2(e) or 2(f) of the Note Purchase Agreement, then the
Trustee shall give the Depositary (with a copy to the Escrow Agent) a notice
of cancellation of such Notice of Series D Non-Issuance Withdrawal relating to
such Deposit Account or Accounts. Amounts withdrawn from such Deposit Account
or Accounts, to the extent not distributed to the Receiptholders on the date
specified in the Class D Notice, shall be redeposited by the Trustee with the
Depositary in accordance with the terms of the Deposit Agreement. Upon receipt
of a Class D Notice specifying the requirement for a Series D Non-Issuance
Withdrawal, the Trustee shall also make a demand upon the Company for an
amount equal to the Special Redemption Premium, such payment to be made on the
date specified in
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such Class D Notice as the date for payment by the Depositary of funds
pursuant to the Series D Non-Issuance Withdrawal.
Section 4.02. Withdrawal of Deposits. If any Deposits remain
outstanding on the Business Day next succeeding the Cut-off Date (i) the
Trustee shall give the Escrow Agent notice that the Trustee's obligation to
purchase Equipment Notes under the Note Purchase Agreement has terminated and
instruct the Escrow Agent to provide a notice of Final Withdrawal to the
Depositary substantially in the form of Exhibit B to the Deposit Agreement
(the "Final Withdrawal Notice") and (ii) the Trustee will make a demand upon
the Company for an amount equal to the Special Redemption Premium, such
payment to be made on the Final Withdrawal Date.
Section 4.03. The Trustee. (a) Subject to Section 4.04 of this Trust
Supplement and Section 7.14 of the Basic Agreement, the Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Trust Supplement, the Deposit Agreement or the Escrow
Agreement or the due execution hereof or thereof by the Company or the other
parties thereto (other than the Trustee), or for or in respect of the recitals
and statements contained herein or therein, all of which recitals and
statements are made solely by the Company.
(b) Except as herein otherwise provided, no duties, responsibilities
or liabilities are assumed, or shall be construed to be assumed by the Trustee
by reason of this Trust Supplement other than as set forth in the Basic
Agreement, and this Trust Supplement is executed and accepted on behalf of the
Trustee, subject to all the terms and conditions set forth in the Basic
Agreement, upon the effectiveness thereof, as fully to all intents as if the
same were herein set forth at length.
Section 4.04. Representations and Warranties of the Trustee. The
Trustee hereby represents and warrants that:
(a) the Trustee has full power, authority and legal right to
execute, deliver and perform this Trust Supplement, the Intercreditor
Agreement, the Escrow Agreement and the Note Documents to which it is a
party (collectively, the "Trustee Agreements") and has taken all
necessary action to authorize the execution, delivery and performance by
it of the Trustee Agreements;
(b) the execution, delivery and performance by the Trustee of the
Trustee Agreements (i) will not violate any provision of any United
States federal law or the law of the state of the United States where it
is located governing the banking and trust powers of the Trustee or any
order, writ, judgment, or decree of any court, arbitrator or governmental
authority applicable to the Trustee or any of its assets, (ii) will not
violate any provision of the articles of association or by-laws of the
Trustee, and (iii) will not violate any provision of, or constitute, with
or without notice or lapse of time, a default under, or result in the
creation or imposition of any lien on any properties included in the
Trust Property pursuant to the provisions of any mortgage, indenture,
contract, agreement or other undertaking to which it is a party, which
violation, default or lien could reasonably be expected to have an
adverse effect on the Trustee's performance or ability
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to perform its duties hereunder or thereunder or on the transactions
contemplated herein or therein;
(c) the execution, delivery and performance by the Trustee of the
Trustee Agreements will not require the authorization, consent, or
approval of, the giving of notice to, the filing or registration with, or
the taking of any other action in respect of, any governmental authority
or agency of the United States or the state of the United States where it
is located regulating the banking and corporate trust activities of the
Trustee; and
(d) each Trustee Agreement has been, or will be, as applicable, duly
executed and delivered by the Trustee and constitute, or will constitute,
as applicable, the legal, valid and binding agreement of the Trustee,
enforceable against it in accordance with its terms; provided, however,
that enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and (ii) general principles of equity.
Section 4.05. Trustee Liens. The Trustee in its individual capacity
agrees, in addition to the agreements contained in Section 7.16 of the Basic
Agreement, that it will, at its own cost and expense, promptly take any action
as may be necessary to duly discharge and satisfy in full any Trustee's liens
on or with respect to the Trust Property which is attributable to the Trustee
in its individual capacity and which is unrelated to the transactions
contemplated by the Intercreditor Agreement or the Note Purchase Agreement.
Section 4.06. Amendment of Section 7.01 of the Basic Agreement. The
Trustee agrees, in addition to the agreements contained in Section 7.01 of the
Basic Agreement, that it will promptly transmit any such notices to the
Luxembourg Paying Agent.
Section 4.07. Amendment of Section 8.03 of the Basic Agreement. (a)
So long as any of the Applicable Certificates are listed on the Luxembourg
Stock Exchange and the rules of the Luxembourg Stock Exchange shall so
require, the Trustee shall promptly furnish to the Luxembourg Listing Agent
following receipt thereof from the Company (i) copies of the Operative
Agreements (as defined in the Intercreditor Agreement), the Deposit Agreement
and the Escrow Agreement and (ii) copies of the information received by the
Trustee from the Company pursuant to Section 8.04 of the Basic Agreement.
(b) The provisions of this Section 4.07 supersede and replace the
provisions of Section 8.03 of the Basic Agreement in its entirety with respect
to the Applicable Trust.
Section 4.08. Luxembourg Paying Agent. So long as any of the
Applicable Certificates are listed on the Luxembourg Stock Exchange and the
rules of the Luxembourg Stock Exchange shall so require, the Trustee shall
maintain a paying agent in Luxembourg (the "Luxembourg Paying Agent"), which
shall be considered a Paying Agent for purposes of the Agreement. The
Luxembourg Paying Agent, by accepting its appointment, shall be deemed to
agree to perform the duties of the paying agent set forth in the Prospectus
Supplement and the other requirements of the Luxembourg Stock Exchange. The
Trustee hereby initially appoints Credit Lyonnais Luxembourg S.A., as
Luxembourg Paying Agent and as the Trustee's agent where notices and demands
to or upon the Trustee in respect of any Applicable Certificates listed
13
on the Luxembourg Stock Exchange may be served, where payments of principal,
interest, Break Amount (if any), Prepayment Premium (if any) and other premium
(if any) on the Definitive Certificates may be made upon written request of
the registered holder of a Definitive Certificate to the Trustee or to the
Luxembourg Paying Agent (a copy of which shall be furnished to the Trustee),
and where such Applicable Certificates may be surrendered for exchange on the
terms and conditions set forth in this Agreement. The Trustee shall, upon
written request of the Company, at any time and from time to time, vary or
terminate the appointment of such Luxembourg Paying Agent or appoint any
additional or replacement Luxembourg Paying Agent for any or all of such
purposes, subject to the requirements of the first sentence of this Section
4.08. The Trustee shall direct the Luxembourg Paying Agent to promptly forward
copies of all inquiries and requests relating to the Applicable Certificates
to the Trustee and the Escrow Agent.
ARTICLE V
SUPPLEMENTAL AGREEMENT
Section 5.01. Supplemental Agreements. (a) For purposes of this
Trust, Section 9.01 and 9.02 of the Basic Agreement shall be amended to read
as follows:
"Section 9.01. Supplemental Agreements Without Consent of Applicable
Certificateholders. Without the consent of the Applicable
Certificateholders, the Guarantor and the Company may, and the Trustee
(subject to Section 9.03) shall, at any time and from time to time, enter
into one or more agreements supplemental hereto or, if applicable, to the
Deposit Agreements, the Escrow Agreements, the Intercreditor Agreement,
the Reference Agency Agreement (as defined in the Intercreditor
Agreement), the Note Purchase Agreement or any Liquidity Facility, for
any of the following purposes:
(1) to provide for the formation of a Trust, the issuance of a
series of certificates and the other matters contemplated by Section
2.01(b); or
(2) to evidence the succession of another corporation to the
Company or the Guarantor and the assumption by any such successor of
the covenants of the Company or the Guarantor herein contained or
contained in the Note Purchase Agreement; or
(3) to add to the covenants of the Guarantor or the Company for
the benefit of the Certificateholders of any series, or to surrender
any right or power conferred upon the Guarantor or the Company in
this Agreement, the Intercreditor Agreement, the Reference Agency
Agreement, the Note Purchase Agreement or any Liquidity Facility; or
(4) except where Certificateholder consent is required by
Sections 9.02(1) - 9.02(6) and as described below, to correct or
supplement any provision in this Agreement, the Deposit Agreements,
the Escrow Agreements, the Intercreditor Agreement, the Reference
Agency Agreement, the Note Purchase Agreement or any Liquidity
Facility which may be defective or inconsistent with
14
any other provision herein or in any Trust Supplement or to make any
other provisions with respect to matters or questions arising under
this Agreement, the Deposit Agreements, the Escrow Agreements, the
Intercreditor Agreement, the Reference Agency Agreement, the Note
Purchase Agreement or any Liquidity Facility, provided that any such
action shall not adversely affect the interests of the
Certificateholders of any series; or to cure any ambiguity or
correct any mistake in this Agreement, the Deposit Agreements, the
Escrow Agreements, the Intercreditor Agreement, the Reference Agency
Agreement, the Note Purchase Agreement or any Liquidity Facility; or
(5) to comply with any requirement of the SEC, any applicable
law, rules or regulations of any exchange or quotation system on
which the Applicable Certificates are listed, or any regulatory
body; or
(6) to modify, eliminate or add to the provisions of this
Agreement, the Deposit Agreements, the Escrow Agreements, the
Intercreditor Agreement, the Note Purchase Agreement, the Reference
Agency Agreement or any Liquidity Facility to such extent as shall
be necessary to continue the qualification of this Agreement
(including any supplemental agreement) under the Trust Indenture
Act, or under any similar Federal statute hereafter enacted, and to
add to this Agreement, the Deposit Agreements, the Escrow
Agreements, the Intercreditor Agreement, the Note Purchase
Agreement, the Reference Agency Agreement or any Liquidity Facility
such other provisions as may be expressly permitted by the Trust
Indenture Act, excluding, however, the provisions referred to in
Section 316(a)(2) of the Trust Indenture Act as in effect at the
date as of which this instrument was executed or any corresponding
provision in any similar Federal statute hereafter enacted; or
(7) to evidence and provide for the acceptance of appointment
under this Agreement, the Deposit Agreements, the Escrow Agreements,
the Intercreditor Agreement, the Note Purchase Agreement, the
Reference Agency Agreement or any Liquidity Facility by a successor
Trustee with respect to one or more Trusts and to add to or change
any of the provisions of this Agreement, the Deposit Agreements, the
Escrow Agreements, the Intercreditor Agreement, the Note Purchase
Agreement, the Reference Agency Agreement or any Liquidity Facility
as shall be necessary to provide for or facilitate the
administration of the Trusts hereunder and thereunder by more than
one Trustee, pursuant to the requirements of Section 7.09; or
(8) to make any other amendments or modifications hereto,
provided such amendments or modifications shall only apply to
Certificates of one or more series to be thereafter issued."
"Section 9.02. Supplemental Agreements with Consent of
Certificateholders. With respect to each separate Trust and the series of
Certificates relating thereto, with the consent of the Certificateholders
holding Certificates of any such series evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in such
15
Trust, by Act of said Certificateholders delivered to the Guarantor, the
Company and the Trustee, the Guarantor and the Company may, and the
Trustee (subject to Section 9.03) shall, enter into an agreement or
agreements supplemental hereto for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement, the Deposit Agreements, the Escrow Agreements, the
Intercreditor Agreement, the Reference Agency Agreement, the Note
Purchase Agreement or any Liquidity Facility to the extent applicable to
such Certificateholders or of modifying in any manner the rights and
obligations of such Certificateholders under this Agreement, the Deposit
Agreements, the Escrow Agreements, the Intercreditor Agreement, the
Reference Agency Agreement, the Note Purchase Agreement or any Liquidity
Facility; provided, however, that no such supplemental agreement shall,
without the consent of the Certificateholder of each Outstanding
Certificate affected thereby:
(1) reduce in any manner the amount of, or delay the timing of,
any receipt by the Trustee of payments on the Equipment Notes or
other Trust Property held in such Trust or distributions that are
required to be made herein on any Certificate of such series, or
change any date of payment of any Certificate of such series, or
change the place of payment where, or the coin or currency in which,
any Certificate of such series is payable, or impair the right to
institute suit for the enforcement of any such payment or
distribution on or after the Regular Distribution Date or Special
Distribution Date applicable thereto; or
(2) permit the disposition of any Equipment Note in the Trust
Property of such Trust except as permitted by this Agreement, or
otherwise deprive such Certificateholder of the benefit of the
ownership of the Equipment Notes in such Trust; or
(3) alter the priority of distributions specified in the
Intercreditor Agreement; or
(4) reduce the percentage of the aggregate Fractional Undivided
Interests of such Trust, the consent of the holder of which is
required for any such supplemental agreement, or reduce such
percentage required for any waiver (of compliance with certain
provisions of this Agreement or certain defaults hereunder and their
consequences) provided for in this Agreement; or
(5) modify any of the provisions of this Section or Section
6.05, except to increase any such percentage or to provide that
certain other provisions of this Agreement cannot be modified or
waived without the consent of the Certificateholder of each
Certificate or such series affected thereby.
It shall not be necessary for any Act of such Certificateholders
under this Section to approve the particular form of any proposed
supplemental agreement, but it shall be sufficient if such Act shall
approve the substance thereof."
(b) If Class E Certificates are issued, the Company, the Guarantor
and the Trustee, without the consent of the Applicable Certificateholders, may
enter into an agreement
16
supplemental to this Trust Supplement whereby Class E Certificateholders shall
be granted purchase rights similar to those set forth in Section 7.01 hereof.
(c) Any supplemental agreement may not adversely affect the status
of the Applicable Trust for U.S. federal income tax purposes, as either (i) a
grantor trust under Subpart E, Part I of Subchapter J of Chapter 1 of Subtitle
A of the Code or (ii) a partnership.
ARTICLE VI
DISTRIBUTIONS; STATEMENT TO CERTIFICATEHOLDERS
Section 6.01. Additions to Article IV of the Basic Agreement. In
addition to the provisions of Article IV of the Basic Agreement, the following
provisions shall apply to the Applicable Trust:
(a) Upon the payment of Special Redemption Premium to the Trustee
under the Note Purchase Agreement, the Trustee, upon receipt thereof,
shall immediately deposit the aggregate amount of such Special Redemption
Premium in the Special Payments Account.
(b) The distribution of amounts of Special Redemption Premium as
provided for in Section 4.02(b) of the Basic Agreement shall be on the
Special Distribution Date with respect to such Special Payment or as soon
thereafter as the Trustee has confirmed receipt of the related Special
Redemption Premium.
(c) In the event of the payment of a Special Redemption Premium by
the Company to the Trustee under the Note Purchase Agreement, the notice
provided for in Section 4.02(c) of the Basic Agreement shall be mailed,
together with the notice by the Paying Agent under Section 2.6 of the
Escrow Agreement, not less that 15 days prior to the Special Distribution
Date for such amount, which Special Distribution Date shall be the Final
Withdrawal Date or date of payment of the Series D Non-Issuance
Withdrawal, as the case may be.
(d) The last sentence of the first paragraph of Section 4.02(c) of
the Basic Agreement shall apply equally if the amount of Special
Redemption Premium, if any, has not been calculated at the time the
Trustee mails notice of a Special Payment.
Section 6.02. Statements to Applicable Certificateholders; Federal
Income Tax Reporting. (a) On each Distribution Date, the Trustee will include
with each distribution to Applicable Certificateholders of a Scheduled Payment
or Special Payment, as the case may be, a statement setting forth the
information provided below (in the case of a Special Payment, reflecting in
part the information provided by the Paying Agent under the Escrow Agreement).
Such statement shall set forth (per $1,000 face amount Applicable Certificate
as to (i), (ii), (iii), (iv) and (v) below) the following information:
(i) the aggregate amount of funds distributed on such Distribution
Date under the Agreement and under the Escrow Agreement, indicating the
amount allocable to each source (including any portion thereof paid by
the Liquidity Providers);
17
(ii) the amount of such distribution under the Agreement allocable
to principal and the amount allocable to Break Amount (if any),
Prepayment Premium (if any) and any other premium;
(iii) the amount of such distribution under the Agreement allocable
to interest;
(iv) the amount of such distribution under the Escrow Agreement
allocable to interest;
(v) the amount of such distribution under the Escrow Agreement
allocable to unused Deposits, if any, and the amount of such distribution
under the Escrow Agreement allocable to Deposit Break Amount, if any; and
(vi) the Pool Balance and the Pool Factor; and
(vii) the LIBOR rates and the resulting interest rates payable on
the Applicable Certificates for the Current and immediately preceding
Interest Periods.
With respect to the Applicable Certificates registered in the name
of DTC, on the Record Date prior to each Distribution Date, the Trustee will
request from DTC a securities position listing setting forth the names of all
direct participants reflected on its books as holding interests in the
Applicable Certificates on such Record Date. On each Distribution Date, the
Trustee will mail to each such direct participant, whose name has been
provided by DTC, the statement described above and will make available
additional copies as requested by such direct participant for forwarding to
holders of interests in the Applicable Certificates.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the Trustee
shall furnish to each Person who at any time during such calendar year was an
Applicable Certificateholder of record a statement containing the sum of the
amounts determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and
(a)(v) of this Section 6.02 for such calendar year or, in the event such
Person was an Applicable Certificateholder of record during a portion of such
calendar year, for such portion of such year, and such other items as are
readily available to the Trustee and which an Applicable Certificateholder
shall reasonably request as necessary for the purpose of such Applicable
Certificateholder's preparation of its federal income tax returns. Such
statement and such other items shall be prepared on the basis of information
supplied to the Trustee by the direct participants of DTC, and shall be
delivered by the Trustee to such direct participants to be available for
forwarding by such direct participants to the holders of interests in the
Applicable Certificates in the manner described in Section 6.02(a) hereof.
(c) Promptly following the date of (i) any change in the information
set forth in clauses (x) and (y) below from that set forth in page S-50 and
S-51 of the Prospectus Supplement, and (ii) any early redemption or purchase
of, or any default in the payment of principal or interest in respect of, any
of the Equipment Notes held in the Applicable Trust, or any Final Withdrawal,
the Trustee shall furnish to Applicable Certificateholders of record on such
date a statement setting forth (x) the expected Pool Factors for each
subsequent Regular Distribution Date and (y) the expected principal
distribution schedule of the Equipment Notes, in the aggregate, held as Trust
Property at the date of such notice. With respect to the Applicable
18
Certificates registered in the name of DTC, on the Cut-off Date, the Trustee
will request from DTC a securities position listing setting forth the names of
all direct participants reflected on its books as holding interests in the
Applicable Certificates on such date. The Trustee will mail to each direct
participant the statement described above and will make available additional
copies as requested by such direct participant for forwarding to holders of
interests in the Applicable Certificates. Notwithstanding the foregoing, so
long as any of the Applicable Certificates are listed on the Luxembourg Stock
Exchange, all information and documents required to be delivered pursuant to
this Section 6.02 (other than Section 6.02(b)) shall also be provided to the
Luxembourg Paying Agent and made available at the Luxembourg Paying Agent's
offices in Luxembourg, free of charge.
(d) Unless and until required otherwise by applicable authority, the
Trustee shall treat the Applicable Trust as a "grantor trust" under Subpart E,
Part I, Subchapter J of Chapter 1 of the Code, and shall file annually with
the Internal Revenue Service Form 1041, indicating the name and address of the
Applicable Trust and otherwise completed in blank, with attached statements
identifying each Applicable Certificateholder and its pro rata share of the
income and expenses of the Applicable Trust for the applicable portion of the
preceding calendar year, on the cash or accrual method, as the case may be,
and shall furnish each Applicable Certificateholder with a copy of its
statement at the time and in the manner required by the Code.
(e) This Section 6.02 supersedes and replaces Section 4.03 of the
Basic Agreement.
ARTICLE VII
DEFAULT
Section 7.01. Purchase Rights of Certificateholders. By acceptance
of its Applicable Certificate, each Applicable Certificateholder agrees that,
after the occurrence and during the continuation of a Triggering Event,
(a) subject to Section 7.01(d) below, the Applicable
Certificateholders shall have the right (which shall not expire upon any
purchase of the Class G-1 Certificates or the Class G-2 Certificates
pursuant to the Class G-1 Trust Agreement or the Class G-2 Trust
Agreement) to purchase all, but not less than all, of the Class G-1
Certificates and the Class G-2 Certificates upon ten days' prior written
notice to the Class G-1 Trustee, the Class G-2 Trustee, each other
Applicable Certificateholder and the Class C-2 Certificateholders;
provided that if any Class C-2 Certificateholders also wish to purchase
the Class G-1 Certificates and the Class G-2 Certificates, then whichever
of Class C-1 or Class C-2 shall have the larger Pool Balance of
Certificates outstanding at such time (such Class, the "Larger C Class",
the related Certificates, the "Larger C Class Certificates" and the
related Trust, the "Larger C Class Trust"; such other Class, the "Smaller
C Class", the related Certificates, the "Smaller C Class Certificates"
and the related Trust, the "Smaller C Class Trust") shall have such
right; provided, further, that (i) if prior to the end of such ten-day
period any other Larger C Class Certificateholder notifies such
purchasing Larger C Class Certificateholder that such other Larger C
Class Certificateholder wants to participate in such purchase, then such
other Larger C Class Certificateholder may join with the purchasing
Larger C Class Certificateholder to
19
purchase all, but not less than all, of the Class G-1 Certificates and
the Class G-2 Certificates pro rata based on the fractional undivided
interest in the Larger C Class Trust held by each such Larger C Class
Certificateholder and (ii) if prior to the end of such ten-day period any
other Larger C Class Certificateholder fails to notify the purchasing
Larger C Class Certificateholder of such other Larger C Class
Certificateholder's desire to participate in such a purchase, then such
other Larger C Class Certificateholder shall lose its right to purchase
the Class G-1 Certificates and the Class G-2 Certificates pursuant to
this Section 7.01(a); and
(b) subject to Section 7.01(d) below, if the Class G-1 Certificates
and the Class G-2 Certificates have been purchased by the Larger C Class
Certificateholders, the Smaller C Class Certificateholders shall have the
right (which shall not expire upon any purchase of the Class G-1
Certificates and the Class G-2 Certificates pursuant to paragraph (a)
above) to purchase all, but not less than all, of the Class G-1
Certificates, the Class G-2 Certificates and the Larger C Class
Certificates upon ten days' prior written notice to the Class G-1
Trustee, the Class G-2 Trustee, the Trustee of the Larger C Class and
each other Smaller C Class Certificateholder, provided that (i) if prior
to the end of such ten-day period any other Smaller C Class
Certificateholder notifies such purchasing Smaller C Class
Certificateholder that such other Smaller C Class Certificateholder wants
to participate in such purchase, then such other Smaller C Class
Certificateholder may join with the purchasing Smaller C Class
Certificateholder to purchase all, but not less than all, of the Class
G-1 Certificates, the Class G-2 Certificates and the Larger C Class
Certificates pro rata based on the fractional undivided interest in the
Smaller C Class Trust held by each such Smaller C Class Certificateholder
and (ii) if prior to the end of such ten-day period any other Smaller C
Class Certificateholder fails to notify the purchasing Smaller C Class
Certificateholder of such other Smaller C Class Certificateholder's
desire to participate in such a purchase, then such other Smaller C Class
Certificateholder shall lose its right to purchase the Class G-1
Certificates, the Class G-2 Certificates and the Larger C Class
Certificates pursuant to this Section 7.01(b); and
(c) subject to Section 7.01(d) below, each Class D Certificateholder
(other than the Company or any of its Affiliates) shall have the right
(which shall not expire upon any purchase of the Class G-1 Certificates,
the Class G-2 Certificates and the Applicable Certificates or the Class
C-2 Certificates pursuant to paragraph (a) or (b) above) to purchase all,
but not less than all, of the Class G-1 Certificates, the Class G-2
Certificates, the Applicable Certificates and the Class C-2 Certificates
upon ten days' prior written notice to the Class G-1 Trustee, the Class
G-2 Trustee, the Trustee, the Class C-2 Trustee and each other Class D
Certificateholder, provided that (i) if prior to the end of such
ten-day period any other Class D Certificateholder (other than the
Company or any of its Affiliates) notifies such purchasing Class D
Certificateholder that such other Class D Certificateholder wants to
participate in such purchase, then such other Class D Certificateholder
may join with the purchasing Class D Certificateholder to purchase all,
but not less than all, of the Class G-1 Certificates, the Class G-2
Certificates, the Applicable Certificates and the Class C-2 Certificates
pro rata based on the fractional undivided interest in the Class D Trust
held by each such Class D Certificateholder and (ii) if prior to the end
of such ten-day period any other Class D Certificateholder fails to
20
notify the purchasing Class D Certificateholder of such other Class D
Certificateholder's desire to participate in such a purchase, then such
other Class D Certificateholder shall lose its right to purchase the
Class G-1 Certificates, the Class G-2 Certificates, the Applicable
Certificates and the Class C-2 Certificates pursuant to this Section
7.01(c); and
(d) whether or not any Certificateholders of any Class has exercised
its rights pursuant to the foregoing provisions of this Section 7.01, the
Policy Provider (except in the case of a Policy Provider Default), if it
is then the Controlling Party, shall have the right to purchase all, but
not less than all, of the Class G-1 Certificates and the Class G-2
Certificates upon ten days' written notice to the Class G-1 Trustee, the
Class G-2 Trustee, the Trustee, the Class C-2 Trustee and the holders of
the Class G-1 Certificates, the Class G-2 Certificates, the Applicable
Certificates and the Class C-2 Certificates.
The purchase price with respect to the Applicable Certificates shall
be equal to the Pool Balance of the Applicable Certificates, together with
accrued and unpaid interest thereon to the date of such purchase, without
premium, but including any other amounts then due and payable to the
Applicable Certificateholders under this Agreement, the Intercreditor
Agreement, the Escrow Agreement or any Note Document or on or in respect of
the Applicable Certificates; provided, however, that (i) if such purchase
occurs after the record date specified in Section 2.3(b) of the Escrow
Agreement relating to the distribution of unused Deposits and accrued and
unpaid interest thereunder, such purchase price shall be reduced by the
aggregate amount of unused Deposits and interest to be distributed under the
Escrow Agreement (which deducted amounts shall remain distributable to, and
may be retained by, the Applicable Certificateholder as of such record date)
and (ii) if such purchase occurs after a Record Date, such purchase price
shall be reduced by the amount to be distributed hereunder on the related
Distribution Date (which deducted amounts shall remain distributable to, and
may be retained by, the Applicable Certificateholder as of such Record Date);
provided further that no such purchase of Applicable Certificates shall be
effective unless the purchaser(s) shall certify to the Trustee that
contemporaneously with such purchase, such purchaser(s) is purchasing,
pursuant to the terms of this Agreement and the Other Agreements, the Class
G-1 Certificates, the Class G-2 Certificates, the Applicable Certificates, and
the Class C-2 Certificates which are senior to the securities held by such
purchaser(s). Each payment of the purchase price of the Applicable
Certificates referred to in the first sentence of this paragraph shall be made
to an account or accounts designated by the Trustee and each such purchase
shall be subject to the terms of this Section 7.01. Each Applicable
Certificateholder agrees by its acceptance of its Applicable Certificate that
it will, subject to Section 3.04 of the Basic Agreement, upon payment from
such Class C-2 Certificateholder(s) or Class D Certificateholder(s), as the
case may be, of the purchase price set forth in the first sentence of this
paragraph, forthwith sell, assign, transfer and convey to the purchaser(s)
thereof (without recourse, representation or warranty of any kind except for
its own acts), all of the right, title, interest and obligation of such
Applicable Certificateholder in this Agreement, the Escrow Agreement, the
Deposit Agreement, the Intercreditor Agreement, each Liquidity Facility, the
Reference Agency Agreement, the Note Documents and all Applicable Certificates
and Escrow Receipts held by such Applicable Certificateholder (excluding all
right, title and interest under any of the foregoing to the extent such right,
title or interest is with respect to an obligation not then due and payable as
respects any action or inaction or state of affairs occurring prior to such
sale) and the purchaser shall assume all of such Applicable
21
Certificateholder's obligations under this Agreement, the Escrow Agreement,
the Deposit Agreement, the Intercreditor Agreement, each Liquidity Facility,
the Reference Agency Agreement, the Note Documents and all such Applicable
Certificates and Escrow Receipts. The Applicable Certificates will be deemed
to be purchased on the date payment of the purchase price is made
notwithstanding the failure of the Applicable Certificateholders to deliver
any Applicable Certificates and, upon such a purchase, (i) the only rights of
the Applicable Certificateholders will be to deliver the Applicable
Certificates to the purchaser(s) and receive the purchase price for such
Applicable Certificates and (ii) if the purchaser(s) shall so request, such
Applicable Certificateholder will comply with all the provisions of Section
3.04 of the Basic Agreement to enable new Applicable Certificates to be issued
to the purchaser in such denominations as it shall request. All charges and
expenses in connection with the issuance of any such new Applicable
Certificates shall be borne by the purchaser thereof.
As used in this Section 7.01, the terms "Class G-1 Certificate",
"Class G-1 Trust Agreement", "Class G-1 Trustee", "Class G-2 Certificate",
"Class G-2 Trust Agreement", "Class G-2 Trustee", "Class C-2 Certificate",
"Class C-2 Certificateholder", "Class C-2 Trustee", "Class D Trust" and
"Policy Provider Default" shall have the respective meanings assigned to such
terms in the Intercreditor Agreement.
(e) This Section 7.01 supersedes and replaces Section 6.01(b) of the
Basic Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Basic Agreement Ratified. Except and so far as herein
expressly provided, all of the provisions, terms and conditions of the Basic
Agreement are in all respects ratified and confirmed; and the Basic Agreement
and this Trust Supplement shall be taken, read and construed as one and the
same instrument.
Section 8.02. GOVERNING LAW. THIS TRUST SUPPLEMENT AND THE SERIES
2002-1C-1 CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAW OF THE STATE OF NEW YORK.
Section 8.03. Execution in Counterparts. This Trust Supplement may
be executed in any number of counterparts, each of which shall be an original,
but such counterparts shall together constitute but one and the same
instrument.
Section 8.04. Notices. The Trustee agrees, in addition to the
agreements contained in Section 12.04 of the Basic Agreement, that notices to
the Applicable Certificateholders in respect of the Applicable Certificates
regarding (i) a Special Distribution Date pursuant to Section 4.02(c) of the
Basic Agreement, (ii) the final distribution pursuant to Section 8.01(a) of
this Trust Supplement, (iii) a default pursuant to Section 7.01 of the Basic
Agreement or (iv) the appointment of a successor Luxembourg Paying Agent
pursuant to Section 6.08 of this Trust Supplement, shall, so long as any of
the Applicable Certificates are listed on the Luxembourg Stock Exchange and
the rules of the Luxembourg Stock Exchange so require, promptly after such
mailing also to be published in the Luxemburger Wort or in another daily
22
newspaper having general circulation in Luxembourg (or, if not practical in
Luxembourg, elsewhere in Europe.)
23
IN WITNESS WHEREOF, the Guarantor, the Company and the Trustee have
caused this Trust Supplement to be duly executed by their respective officers
thereto duly authorized, as of the day and year first written above.
NORTHWEST AIRLINES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President & Treasurer
NORTHWEST AIRLINES CORPORATION,
as Guarantor
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President & Treasurer
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, as Trustee
By:
-----------------------------------------
Name:
Title:
23
IN WITNESS WHEREOF, the Guarantor, the Company and the Trustee have
caused this Trust Supplement to be duly executed by their respective officers
thereto duly authorized, as of the day and year first written above.
NORTHWEST AIRLINES, INC.
By:
-----------------------------------------
Name:
Title:
NORTHWEST AIRLINES CORPORATION,
as Guarantor
By:
-----------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Xxxxxxx X. Ring
-----------------------------------------
Name: Xxxxxxx X. Ring
Title: Assistant Vice President
EXHIBIT A
---------
FORM OF CERTIFICATE
[[Insert if DTC Certificate:] Unless this certificate is presented
by an authorized representative of The Depository Trust Company, a New York
corporation ("DTC"), to Issuer or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch the registered owner hereof, Cede & Co., has an interest
herein.]
Any person acquiring this Certificate by its acceptance hereof or
its interest herein, will be deemed to represent and warrant to and for the
benefit of the Company that either (i) the assets of an employee benefit plan
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), of a plan subject to Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), of entities which may be deemed to hold
such plans' assets, or of another employee benefit plan not subject to ERISA
or Section 4975 of the Code (such as a governmental, church or non-U.S. plan)
have not been used to purchase this Certificate or (ii) one or more prohibited
transaction statutory or administrative exemptions applies such that the use
of such plan assets to purchase and hold this Certificate will not constitute
a non-exempt prohibited transaction under ERISA or Section 4975 of the Code or
a violation under any federal, state or local law that is substantially
similar to the provisions of Title I of ERISA or Section 4975 of the Code.
NORTHWEST AIRLINES 2002-1C-1 PASS THROUGH TRUST
Pass Through
Certificate, Series 2002-1C-1
Issuance Date: _______ __, 2002
Final Legal Distribution Date: _______ __, 20__
Evidencing A Fractional Undivided Interest In The Northwest Airlines
2002-1C-1 Pass Through Trust, The Property Of Which Includes Certain
Equipment Notes Each Secured By An Aircraft Owned By Northwest
Airlines, Inc.
Certificate $________ Fractional undivided interest representing 0.__%
No. _____ of the Trust per $1,000 of Reference Principal Amount
THIS CERTIFIES THAT _______________, for value received, is the
registered owner of a Fractional Undivided Interest in the amount of $_______
(the "Reference Principal Amount") in the Northwest Airlines 2002-1C-1 Pass
Through Trust (the "Trust") created by State Street Bank and Trust Company of
Connecticut, National Association, as trustee (the "Trustee"), pursuant to a
Pass Through Trust Agreement, dated as of June 3, 1999 (as amended or
supplemented, the "Basic Agreement"), by and among the Trustee, Northwest
Airlines
2
Corporation, a Delaware corporation (the "Guarantor"), and Northwest Airlines,
Inc., a Minnesota corporation (the "Company"), as supplemented by Trust
Supplement No. 2002-1C-1 thereto, dated as of ______ __, 2002 (collectively,
the "Agreement"), by and among the Trustee, the Guarantor and the Company, a
summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein
have the meanings assigned to them in the Agreement. This Certificate is one
of the duly authorized Certificates designated as "Pass Through Certificates,
Series 2002-1C-1" (herein called the "Certificates"). This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement and the Intercreditor Agreement, to which Agreement the
Certificateholder of this Certificate by virtue of the acceptance hereof
assents and by which such Certificateholder is bound. The property of the
Trust includes certain Equipment Notes and all rights of the Trust to receive
payments under the Intercreditor Agreement, the Primary Liquidity Facility and
the Above-Cap Liquidity Facility (the "Trust Property"). Each issue of the
Equipment Notes is secured by a security interest in the related Aircraft.
Each of the Certificates represents a Fractional Undivided Interest
in the Trust and the Trust Property and has no rights, benefits or interest in
respect of any other separate trust established pursuant to the terms of the
Basic Agreement for any other series of certificates issued pursuant thereto.
Subject to and in accordance with the terms of the Agreement and the
Intercreditor Agreement, from funds then available to the Trustee, there will
be distributed on each February 20, May 20, August 20 and November 20 (a
"Regular Distribution Date"), commencing on August 20, 2002 to the Person in
whose name this Certificate is registered at the close of business on the 15th
day preceding the Regular Distribution Date, an amount in respect of the
Scheduled Payments on the Equipment Notes due on such Regular Distribution
Date, the receipt of which has been confirmed by the Trustee, equal to the
product of the percentage interest in the Trust evidenced by this Certificate
and an amount equal to the sum of such Scheduled Payments. Subject to and in
accordance with the terms of the Agreement and the Intercreditor Agreement, in
the event that Special Payments on the Equipment Notes are received by the
Trustee, from funds then available to the Trustee, there shall be distributed
on the applicable Special Distribution Date, to the Person in whose name this
Certificate is registered at the close of business on the 15th day preceding
the Special Distribution Date, an amount in respect of such Special Payments
on the Equipment Notes, the receipt of which has been confirmed by the
Trustee, equal to the product of the percentage interest in the Trust
evidenced by this Certificate and an amount equal to the sum of such Special
Payments so received. If a Regular Distribution Date or Special Distribution
Date is not a Business Day, distribution shall be made on the immediately
following Business Day and interest shall accrue during the intervening
period. The Trustee shall mail notice of each Special Payment and the Special
Distribution Date therefor to the Certificateholder of this Certificate.
Distributions on this Certificate will be made by the Trustee by
check mailed to the Person entitled thereto, without the presentation or
surrender of this Certificate or the making of any notation hereon, except
that with respect to Certificates registered on the Record Date in the name of
DTC (or its nominees), such distribution shall be made by wire transfer.
Except as otherwise provided in the Agreement and notwithstanding the above,
the final distribution on this Certificate will be made after notice mailed by
the Trustee of the pendency of such distribution
3
and only upon presentation and surrender of this Certificate at the office or
agency of the Trustee specified in such notice.
The Certificates do not represent an obligation of, or an obligation
guaranteed by, or an interest in, the Guarantor, the Company or the Trustee or
any affiliate thereof. The Certificates are limited in right or payment, all
as more specifically set forth herein and in the Agreement. All payments or
distributions made to Certificateholders under the Agreement shall be made
only from the Trust Property and only to the extent that the Trustee shall
have sufficient income or proceeds from the Trust Property to make such
payments in accordance with the terms of the Agreement. Each Certificateholder
of this Certificate, by its acceptance hereof, agrees that it will look solely
to the income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made
to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds, and duties evidenced hereby. A copy of the
Agreement may be examined during normal business hours at the principal office
of the Trustee, and at such other places, if any, designated by the Trustee,
by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Guarantor or the Company and the rights of the Certificateholders under the
Agreement at any time by the Guarantor, the Company and the Trustee with the
consent of the Certificateholders holding Certificates evidencing Fractional
Undivided Interests aggregating not less than a majority in interest in the
Trust. Any such consent by the Certificateholder of this Certificate shall be
conclusive and binding on such Certificateholder and upon all future
Certificateholders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Certificateholders of any of the Certificates.
As provided in the Agreement and subject to certain limitations set
forth, the transfer of this Certificate is registrable in the Register upon
surrender of this Certificate for registration of transfer at the offices or
agencies maintained by the Trustee in its capacity as Registrar, or by any
successor Registrar, duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Registrar duly executed
by the Certificateholder hereof or such Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Certificates of
authorized denominations evidencing the same aggregate Fractional Undivided
Interest in the Trust will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates
without coupons in minimum denominations of $1,000 Fractional Undivided
Interests and integral multiples thereof. As provided in the Agreement and
subject to certain limitations therein set forth, the Certificates are
exchangeable for new Certificates of authorized denominations evidencing the
same aggregate Fractional Undivided Interest in the Trust, as requested by the
Certificateholder surrendering the same.
4
So long as any of the Certificates are listed on the Luxembourg
Stock Exchange and the rules of that stock exchange so require, notices to the
Certificateholders shall be given by publication in a daily newspaper having
general circulation in Luxembourg (which is expected to be the Luxemburger
Wort).
No service charge will be made for any such registration of transfer
or exchange, but the Trustee shall require payment of a sum sufficient to
cover any tax or governmental charge payable in connection therewith.
Each Certificateholder or beneficial owner of a Certificate, by its
acceptance of this Certificate or a beneficial interest herein, agrees to
treat the Trust as a grantor trust for all U.S. federal, state and local
income tax purposes.
The Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Trustee, the Registrar, nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and
the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant
to the Agreement and the disposition of all property held as part of the Trust
Property.
THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
XXXXXXXXX XXXXXXXX 0000-0X-0
XXXX THROUGH TRUST
By: STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, as Trustee
By: _____________________________
Name:
Title:
5
FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Trustee
By: _____________________________
Name:
Title:
EXHIBIT B
---------
DTC Letter of Representations
EXHIBIT C
---------
REGULAR DISTRIBUTION DATES
AND
SCHEDULED PAYMENTS
Regular Distribution Date Scheduled Payment
------------------------- -----------------
