Exhibit 99(o)
This Trust Supplement No. 2002-1D, dated as of ________ (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 may
issue Series D Equipment Notes to finance a portion of the purchase price of
such Owned Aircraft;
WHEREAS, pursuant to the terms and conditions of the Basic
Agreement as supplemented by this Trust Supplement (the "Agreement"), the
Trustee shall purchase the Series D 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 "2002-1D Trust" or the "Applicable Trust") for the benefit of the
Applicable Certificateholders, and the initial Applicable Certificateholders
as the grantors of the 2002-1D Trust, by their respective acceptances of the
Applicable Certificates, join in the creation of this 2002-1D Trust with the
Trustee; and
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 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.
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 2002-1D" (hereinafter defined
as the "Series 2002-1D Certificates" or the "Applicable Certificates"). Each
Series 2002-1D Certificate represents a Fractional Undivided Interest in the
2002-1D Trust created hereby.
The terms and conditions applicable to the Series 2002-1D
Certificates are as follows:
(a) The aggregate principal amount of the Series 2002-1D
Certificates that shall be authenticated under the Agreement (except
for Series 2002-1D Certificates authenticated and delivered pursuant
to Sections 3.03, 3.04 and 3.05 of the Basic Agreement) upon their
initial issuance is $______. The Series 2001-1D Certificates shall
be issued in minimum denominations of $100,000 and multiples of
$1,000 in excess thereof. The interest rate applicable to the Series
2001-1D Certificates shall be ___%.
(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 Series D Equipment Notes
has been made.
(d) The Special Distribution Dates with respect to the Series D
Certificates shall be each Business Day on which a Special Payment
is to be distributed pursuant to this Agreement.
(e) (i) The Series 2002-1D Certificates shall be in the form
attached hereto as Exhibit A. Each purchaser of Series 2002-1D
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 a governmental, church or non-U.S. plan)
have not been used to purchase Series 2002-1D 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
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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 2002-1D Certificates shall be Definitive
Certificates.
(f) The Scheduled Payments of principal shall be as set forth
in Exhibit B hereto, as may be amended from time to time. The final
expected Regular Distribution Date applicable to the Series 2001-1D
Certificates shall be May 20, 2014.
(g) The proceeds of the Series 2001-1D Certificates and the
proceeds of any equity contribution to be made by the Delaware
Trust, as the initial Applicable Certificateholder, pursuant to
Section 2.01 hereof shall be applied to the purchase of the Series D
Equipment Notes as provided herein, if and when issued, to finance
or refinance a portion of the purchase price of each Aircraft (other
than a Selected Aircraft) in respect of which Series D. Equipment
Notes are to be issued.
(h) Notwithstanding the provisions of Section 3.04 of the Basic
Agreement, (i) the Trustee shall not register the transfer of any
Series 2001-1D Certificates until after the Cut-off Date and (ii)
prior to the transfer of any Series 2001-1D Certificate the Trustee
shall require evidence satisfactory to it as to the compliance of
any such transfer with the Securities Act of 1933, as amended, and
the securities laws of any applicable state.
Section 1.02. Intercreditor Agreement. The Series 2002-1D
Certificates are subject to the Intercreditor Agreement.
Section 1.03. Ranking of Series 2002-1D Certificates. The
Series 2002-1D Certificates will be subject to the ranking and priority as set
forth in the Intercreditor Agreement.
Section 1.04. 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
STATEMENT OF INTENT
Section 2.01. Capital Contributions. Pursuant to Section
2.11(b) of the Delaware Trust Agreement, the Delaware Trust is obligated to
contribute to the Applicable Trust all amounts received by it from time on and
after the date hereof pursuant to said Section 2.11(b) for the purchase by the
Trustee of Series D Equipment Notes.
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
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Applicable Trust as a grantor trust and (ii) Equipment Notes issued by the
Company as indebtedness of the Company.
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:
Aircraft: Has the meaning specified in the recitals hereto.
Applicable Certificateholder: Means the holder of an Applicable
Certificate.
Applicable Certificates: As defined in Section 1.01.
Applicable Trust: Has the meaning specified in the recitals
hereto.
Break Amount: Has the meaning specified in each relevant
Indenture.
Closing Notice: Has the meaning specified in the Note Purchase
Agreement.
Cut-off Date: Has the meaning specified in Section 1.01(b).
Delaware Trust: Has the meaning specified in the Note Purchase
Agreement.
Delaware Trust Agreement: Has the meaning specified in the Note
Purchase Agreement.
Distribution Date: Means any Regular Distribution Date or
Special Distribution Date.
Eligible Aircraft: Has the meaning specified in the recitals
hereto.
Intercreditor Agreement: Means the Intercreditor Agreement,
dated as of August 5, 2002, by and among the Other Trustee, the
Liquidity Providers named therein, the Policy Provider and State
Street Bank and Trust Company, as Subordination Agent, as amended to
give effect to the issuance of the Applicable Certificates as of the
date hereof and as the same may be further amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Leased Aircraft: Has the meaning specified in the recitals
hereto.
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 August 5, 2002, among the Company, the Other Trustee,
State Street Bank and Trust
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Company, as Subordination Agent, the Escrow Agent, the Paying Agent
and upon the execution of this Trust Supplement, the Trustee, as the
same may be amended, supplemented or otherwise modified from time to
time in accordance with its terms.
Other Agreement: Means the Basic Agreement as supplemented by
Trust Supplement No. 2002-1G-1 (the "2002-1G-1 Trust Supplement")
dated August 5, 2002, 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 August 5, 2002, relating to the
Northwest Airlines 2002-1G-2 Pass Through Trust, by Trust Supplement
No. 2002-1C-1 (the "2002-1C-1 Trust Supplement") dated August 5,
2002, relating to Northwest Airlines 2002-1C-1 Pass Through Trust
and by Trust Supplement No. 2002-1C-2 (the "2002-1C-2 Trust
Supplement") dated August 5, 2002, relating to Northwest Airlines
2002-1C-2 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.
Pool Balance: Means, as of any date, (i) the original aggregate
principal amount of all of the Series D Equipment Notes acquired by
the Trust less (ii) the aggregate amount of all payments made in
respect of the Applicable Certificates 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 payment of principal of
the Series D 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 principal amount of all
of the Series D Equipment Notes acquired by the Trustee. The Pool
Factor as of any Distribution Date shall be computed after giving
effect to any payment of principal of the Series D Equipment Notes
or other Trust Property and the distribution thereof to be made on
that date.
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.
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Series D Equipment Notes: Has the meaning specified in the Note
Purchase 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).
Triggering Event: Has the meaning specified in the
Intercreditor Agreement.
Trust Property: Means (i) the Series D 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) funds from time to
time deposited in the Certificate Account and the Special Payments
Account and (iii) all rights of the Applicable Trust and the
Trustee, on behalf of the Applicable Trust, under the Intercreditor
Agreement and the Note Purchase Agreement, including, without
limitation, the rights of the Applicable Trust to acquire the Series
D Equipment Notes under the Note Purchase Agreement, all rights to
receive certain payments under such documents, and all monies paid
to the Trustee on behalf of the Applicable Trust pursuant to the
Intercreditor Agreement
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.
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 an amendment to the
Intercreditor Agreement in the form delivered to the Trustee by the Company
and (ii) subject to the terms thereof, to perform its obligations thereunder.
By its execution of this Trust Supplement, the Trustee hereby acknowledges and
agrees that it has become party to the Note Purchase Agreement and agrees to
perform its obligations thereunder and to be bound by the terms thereof. Upon
request of the Company and the satisfaction of the closing conditions
specified in Section 11 of the Note
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Purchase Agreement, the Trustee shall execute, deliver, authenticate, issue
and sell Applicable Certificates in authorized denominations equaling in the
aggregate face amount of $__________ evidencing the entire ownership interest
in the Applicable Trust, which amount equals the maximum aggregate principal
amount of Series D 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 date of this Trust Supplement the Company
may deliver from time to time to the Trustee a Closing Notice relating to one
or more Series D Equipment Notes. Promptly upon receipt of a Closing Notice
the Trustee shall provide a copy thereof to the trustee of the Delaware Trust.
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. After
receipt by the Trustee of a Closing Notice and of funds in an amount equal to
the purchase price of the Series D Equipment Notes described in such Closing
Notice, the Trustee shall (as and when specified in the Closing Notice) apply
such funds to the payment of the purchase price of such Equipment Notes, all
as shall be described in the Closing Notice, subject to the satisfaction of
the conditions in the Note Purchase Agreement and the Applicable Participation
Agreement. The purchase price of such Equipment Notes shall equal the
principal amount of such Equipment Notes.
Section 4.02. Termination of Delaware Trust. The Trustee shall
not consent to any amendment to the Delaware Trust Agreement which could
result in the Delaware Trust being terminated other than in accordance with
Article IX of the Delaware Trust Agreement.
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 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 and the Note Documents to
7
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 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.
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
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time and from time to time, enter into one or more agreements
supplemental hereto or, if applicable, the Intercreditor Agreement,
the Reference Agency Agreement (as defined in the Intercreditor
Agreement) or the Note Purchase Agreement, 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 or the Note Purchase
Agreement; 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
Intercreditor Agreement, the Reference Agency Agreement or the
Note Purchase Agreement which may be defective or inconsistent
with 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 Intercreditor
Agreement, the Reference Agency Agreement or the Note Purchase
Agreement, 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 Intercreditor Agreement, the Reference Agency
Agreement or the Note Purchase Agreement; 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 evidence and provide for the acceptance of
appointment under this Agreement, the Intercreditor Agreement,
the Reference Agency Agreement or the Note Purchase Agreement
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 Intercreditor Agreement, the Reference Agency Agreement or
the Note Purchase Agreement 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
(7) 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."
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"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 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 Intercreditor Agreement, the Reference Agency
Agreement or the Note Purchase Agreement to the extent applicable to
such Certificateholders or of modifying in any manner the rights and
obligations of such Certificateholders under this Agreement, the
Intercreditor Agreement, the Reference Agency Agreement or the Note
Purchase Agreement; 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."
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(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 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. [Reserved]
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. Such statement shall set forth (per $1,000 face
amount Applicable Certificate as to (i), (ii) and (iii) below) the following
information:
(i) the aggregate amount of funds distributed on such
Distribution Date under the Agreement;
(ii) the amount of such distribution under the Agreement
allocable to principal and the amount allocable to Break Amount or
premium, if any;
(iii) the amount of such distribution under the Agreement
allocable to interest;
(iv) the Pool Balance and the Pool Factor; and
(v) the LIBOR rates and the resulting interest rates payable on
the Applicable Certificates for the Current and immediately
preceding Interest Periods.
(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) and (a)(iv)
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.
(c) Promptly following the date of (i) any change in the
information specified below from that set forth in Exhibit B hereto and (ii)
any early redemption or purchase of, or any default in the payment of
principal or interest in respect of, any of the Series D Equipment Notes held
in the Applicable Trust, the Trustee shall furnish to Applicable
Certificateholders of record
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on such date a statement setting forth the expected principal distribution
schedule of the Series D Equipment Notes, in the aggregate, held as Trust
Property at the date of such notice.
(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
Purchase Rights of Certificateholders. After the occurrence and
during the continuation of a Triggering Event,
(a) subject to Section 7.01(b) below, each Applicable
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 or, the Class G-2 Certificates and the Class C-1 Certificates or
the Class C-2 Certificates pursuant to the Class G-1 Trust Agreement, Class
G-2 Trust Agreement, Class C-1 Trust Agreement or the Class C-2 Trust
Agreement) to purchase, for the purchase price set forth in the Class G-1
Trust Agreement, the Class G-2 Trust Agreement, the Class C-1 Trust Agreement,
and the Class C-2 Trust Agreement, respectively, all, but not less than all,
of the Class G-1 Certificates, the Class G-2 Certificates, the Class C-1
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 Class C-1 Trustee,
the Class C-2 Trustee and each other Applicable Certificateholder, provided
that (i) if prior to the end of such ten-day period any other Applicable
Certificateholder (other than the Company or any of its Affiliates) notifies
such purchasing Applicable Certificateholder that such other Applicable
Certificateholder wants to participate in such purchase, then such other
Applicable Certificateholder may join with the purchasing Applicable
Certificateholder to purchase all, but not less than all, of the Class G-1
Certificates, the Class G-2 Certificates, the Class C-1 Certificates and the
Class C-2 Certificates pro rata based on the fractional undivided interest in
the Applicable Trust held by each such Applicable Certificateholder and (ii)
if prior to the end of such ten-day period any other Applicable
Certificateholder fails to notify the purchasing Applicable Certificateholder
of such other Applicable Certificateholder's desire to participate in such a
purchase, then such other Applicable Certificateholder shall lose its right to
purchase the Class G-1 Certificates, the Class G-2 Certificates, the Class C-1
Certificates and the Class C-2 Certificates pursuant to this Section 7.01; and
(b) whether or not any Certificateholders of any Class has
exercised its rights to purchase the Class G-1 Certificates, the Class G-2
Certificates, the Class C-1 Certificates or the
12
Class C-2 Certificates pursuant to the Class G-1 Trust Agreement, Class G-2
Trust Agreement, Class C-1 Trust Agreement or the Class C-2 Trust Agreement,
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 Class C-1 Trustee, the Class C-2 Trustee, the Trustee and the holders of
the Class G-1 Certificates, the Class G-2 Certificates, the Class C-1
Certificates, the Class C-2 Certificates and the Applicable Certificates.
As used in this Section 7.01, the terms "Class G-1
Certificate", "Class G-1 Certificateholder", "Class G-1 Trust", "Class G-1
Trust Agreement", "Class G-1 Trustee", "Class G-2 Certificate", "Class G-2
Certificateholder", "Class G-2 Trust", "Class G-2 Trust Agreement", "Class G-2
Trustee", "Class C-1 Certificate", "Class C-1 Certificateholder", "Class C-1
Trust", "Class C-1 Trust Agreement", "Class C-1 Trustee", "Class C-2
Certificate", "Class C-2 Certificateholder", "Class C-2 Trust", "Class C-2
Trust Agreement", "Class C-2 Trustee", "Policy Provider" and "Policy Provider
Default" shall have the respective meanings assigned to such terms in the
Intercreditor Agreement.
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 2002-1D 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.
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.
13
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: _____________________________
Name:
Title:
14
EXHIBIT A
FORM OF CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED PURSUANT TO THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR PURSUANT TO THE SECURITIES
LAWS OF ANY STATE. ACCORDINGLY, THIS CERTIFICATE MAY NOT BE SOLD UNLESS EITHER
REGISTERED UNDER THE ACT AND SUCH APPLICABLE STATE LAWS OR AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE.
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.
XXXXXXXXX XXXXXXXX 0000-0X XXXX THROUGH TRUST
Pass Through
Certificate, Series 2002-1D
Issuance Date: _______ __, 2002
Final Legal Distribution Date: ______ __, 2002
Evidencing A Fractional Undivided Interest In The Northwest Airlines
2002-1D 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 2002-1D 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 Corporation, a Delaware corporation (the "Guarantor"), and Northwest
Airlines, Inc., a Minnesota corporation (the "Company"), as supplemented by
Trust Supplement No. 2002-1D 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 2002-1D" (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 "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
NWA Class D Certificate Trust II (or its nominee), 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
and only upon presentation and surrender of this Certificate at the office or
agency of the Trustee specified in such notice.
2
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, provided that the Trustee shall have received evidence
satisfactory to it as to the compliance of any such transfer with the
Securities Act and the securities laws of any applicable state.
The Certificates are issuable only as registered Certificates
without coupons in minimum denominations of $100,000 Fractional Undivided
Interests and multiples of $1,000 in excess 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.
3
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
XXXX THROUGH TRUST
By: STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, as
Trustee
By: ________________________
Name:
Title:
4
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:
5
EXHIBIT B
REGULAR DISTRIBUTION DATES
AND
SCHEDULED PAYMENTS
Regular Distribution Date Scheduled Payment
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