EXHIBIT 99(Q)
FORM OF CLASS D TRUST SUPPLEMENT
This Trust Supplement No. 2001-1D, 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 the acquisition of nine new
Airbus A319-100 aircraft, three new Boeing 757-300 aircraft and two new Boeing
747-400 aircraft (the "AIRCRAFT"), as selected by the Company out of the fifteen
Airbus A319-100 aircraft, six Boeing 757-300 aircraft and two Boeing 747-400
aircraft scheduled for delivery from February 2002 through December 2002 (the
"ELIGIBLE AIRCRAFT"), either (i) through separate leveraged lease transactions,
in which case the Company will lease such aircraft (collectively, the "LEASED
AIRCRAFT") or (ii) through separate secured loan transactions, in which case the
Company will own such aircraft (collectively, the "OWNED AIRCRAFT");
WHEREAS, in the case of an Airbus 319-100 aircraft or a Boeing
757-300 which shall be a Leased Aircraft, the related Owner Trustee, acting on
behalf of the applicable Owner Participant, may issue, on a non-recourse basis,
Series D Equipment Notes, to finance a portion of the purchase price of such
Leased Aircraft purchased or to be purchased by such Owner Trustee and leased or
to be leased to the Company pursuant to the related Lease;
WHEREAS, in the case of an Airbus 319-100 aircraft or a Boeing
757-300 aircraft which shall be an Owned Aircraft, the Company will 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 in respect of an Airbus 319-100
aircraft or a Boeing 757-300 aircraft, as the case may be, 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
"2001-1D TRUST" or the "APPLICABLE TRUST") for the benefit of the Applicable
Certificateholders, and the
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initial Applicable Certificateholders as the grantors of the 2001-1D Trust, by
their respective acceptances of the Applicable Certificates, join in the
creation of this 2001-1D 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 2001-1D" (hereinafter defined as the "SERIES
2001-1D CERTIFICATES" or the "APPLICABLE Certificates"). Each Series 2001-1D
Certificate represents a Fractional Undivided Interest in the 2001-1D Trust
created hereby.
The terms and conditions applicable to the Series 2001-1D
Certificates are as follows:
(a) The aggregate principal amount of the Series 2001-1D
Certificates that shall be authenticated under the Agreement (except for
Series 2001-1D Certificates authenticated and delivered pursuant to
Sections 3.03, 3.04 and 3.05 of the Basic Agreement) upon their initial
issuance is $50,000,000. 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 earlier of (i) March 31, 2003 and (ii)
the date on which a Triggering Event occurs.
(c) The Regular Distribution Dates with respect to any payment of
Scheduled Payments means each April 1 and October 1, commencing on
________, 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 are as follows: (i) when used
with respect to the redemption or purchase of any Series D Equipment
Notes, the day (which shall be a Business Day) on which such redemption or
purchase is scheduled to occur pursuant to the terms of the applicable
Indenture and (ii) when used with respect to a Special Payment other than
as described in clause (i) above, 15 days after the last date on which the
Trustee must give notice pursuant to Section 4.02(c) of the Basic
Agreement (or the next Business Day after such 15th day if such date is
not a Business Day).
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(e) (i) The Series 2001-1D Certificates shall be in the form
attached hereto as Exhibit A. Each purchaser of Series 2001-1D
Certificates, by its acceptance of such Certificate or its interest
therein, will be deemed to represent and warrant to and for the benefit of
each Owner Participant and 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 2001-1D 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 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 2001-1D 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 October 1, 2013.
(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 relevant Series D Equipment Notes
as provided herein, if and when issued, to finance a portion of the
purchase price of the following Aircraft (assuming that for purposes of
the chart below that the first 12 Eligible Aircraft scheduled for delivery
among the 21 Eligible Aircraft (except for Boeing 749-400 aircraft) are
financed):
EXPECTED REGISTRATION NUMBER AIRCRAFT TYPE ENGINE TYPE
---------------------------- ------------- -----------
N338NB........................ Airbus A319-100 CFM56-5A4
N340NB........................ Airbus A319-100 CFM56-5A4
N343NB........................ Airbus A319-100 CFM56-5A4
N344NB........................ Airbus A319-100 CFM56-5A4
N345NB........................ Airbus A319-100 CFM56-5A4
N346NB........................ Airbus A319-100 CFM56-5A4
N347NB........................ Airbus A319-100 CFM56-5A4
N348NB........................ Airbus A319-100 CFM56-5A4
N349NB........................ Airbus A319-100 CFM56-5A4
N580NW........................ Boeing 757-300 PW2040
N581NW........................ Boeing 757-300 PW2040
N582NW........................ Boeing 757-300 PW2040
(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
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with the Securities Act of 1933, as amended, and the securities laws of
any applicable state.
Section 1.02. INTERCREDITOR AGREEMENT. The Series 2001-1D
Certificates are subject to the Intercreditor Agreement.
Section 1.03. RANKING OF SERIES 2001-1D CERTIFICATES. The Series
2001-1D Certificates will be subject to the ranking and priority as set forth in
the Intercreditor Agreement.
Section 1.04. [Reserved]
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
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 Applicable Trust as a grantor trust and (ii)
Equipment Notes to be issued (or assumed) by an Owner Trust (in the case of a
Leased Aircraft) as indebtedness of such Owner Trust, and Equipment Notes issued
by the Company (in the case of an Owned Aircraft) 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.
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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 June 1, 2001, by and among the Other Trustee, the Liquidity Providers
named therein 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 maybe 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 June 1, 2001, among the Company, the Other Trustee, State Street Bank
and Trust 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. 2001-1A-1 (the "2001-1A-1 TRUST SUPPLEMENT") dated June 1,
2001 relating to Northwest Airlines 2001-1A-1 Pass Through Trust, by Trust
Supplement No. 2001-1A-2 (the "2001-1A-2 TRUST SUPPLEMENT") dated June 1,
2001 relating to the Northwest Airlines 2001-1A-2 Pass Through Trust, by
Trust Supplement No. 2001-1B (the "2001-1B TRUST SUPPLEMENT") dated June
1, 2001 relating to the Northwest Airlines 2001-1B Pass Through Trust and
by Trust Supplement No. 2001-1C (the "2001-1C TRUST SUPPLEMENT") dated
June 1, 2001 relating to the Northwest Airlines 2001-1C 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.
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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
Trustee less (ii) the aggregate amount of all payments made in respect of
the Applicable Certificates other than payments made in respect of
interest 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.
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 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.
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TRUSTS: Means, collectively, the Northwest Airlines 2001-1 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 Purchase Agreement, the Trustee shall execute, deliver,
authenticate, issue and sell Applicable Certificates in authorized denominations
equaling in the aggregate face amount of $50,000,000 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
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the purchase price of such Equipment Notes to or on behalf of the Owner Trustee
or the Company, as the case may be, issuing such Equipment Notes, all as shall
be described in the Closing Notice, subject to 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 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;
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(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 time and from time to time, enter
into one or more agreements supplemental hereto or, if applicable, 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 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
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in this Agreement, the Intercreditor 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 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 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 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 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."
"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 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 (with the consent of
the Owner Trustee, if any, relating to such Certificates, which consent
shall not be unreasonably withheld), 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 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 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
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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 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) 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), (iii) and (iv) 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 premium, if any;
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(iii) the amount of such distribution under the Agreement allocable
to interest; and
(iv) the Pool Balance and the Pool Factor.
(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 (i) the Cut-off Date, if there has been 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 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
Section 7.01. PURCHASE RIGHTS OF CERTIFICATEHOLDERS. After the
occurrence and during the continuation of a Triggering Event, 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 A-1
Certificates pursuant to the Class A-2 Trust Agreement, the Class A-2
Certificates pursuant to the Class A-1 Trust Agreement, the Class A-1 and the
Class A-2 Certificates pursuant to the Class B Trust Agreement or the Class A-1
Certificates, the Class A-2 Certificates and the Class B Certificates pursuant
to the Class C Trust Agreement) to purchase, for the purchase price set forth in
the Class A-1 Trust Agreement, the Class A-2 Trust Agreement, the Class B Trust
Agreement, and the Class C Trust Agreement, respectively, all, but
13
not less than all, of the Class A-1 Certificates, the Class A-2 Certificates,
the Class B Certificates and the Class C Certificates upon ten days' prior
written notice to the Class A-1 Trustee, the Class A-2 Trustee, the Class B
Trustee, the Class C 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 A-1
Certificates, the Class A-2 Certificates, the Class B Certificates and the Class
C 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 C Certificates, the Class A-1 Certificates, the Class A-2 Certificates and
the Class B Certificates pursuant to this Section 7.01.
As used in this Section 7.01, the terms "Class A-1 Certificate",
"Class A-1 Certificateholder", "Class A-1 Trust", "Class A-1 Trust Agreement",
"Class A-1 Trustee", "Class A-2 Certificate", "Class A-2 Certificateholder",
"Class A-2 Trust", "Class A-2 Trust Agreement", "Class A-2 Trustee", "Class B
Certificate", "Class B Certificateholder", "Class B Trust", "Class B Trust
Agreement", "Class B Trustee", "Class C Certificate", "Class C
Certificateholder", "Class C Trust", "Class C Trust Agreement" and "Class C
Trustee" shall have the respective meanings assigned to such terms in the
Intercreditor Agreement.
(a) 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
2001-1D 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.
14
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: ____________________________________
Name:
Title:
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 each Owner Participant and 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 2001-1D PASS THROUGH TRUST
Pass Through
Certificate, Series 2001-1D
Issuance Date: ________
Final Legal Distribution Date: October 1, 2013
Evidencing A Fractional Undivided Interest In The Northwest Airlines
2001-1D Pass Through Trust, The Property Of Which Includes Certain
Equipment Notes Each Secured By An Aircraft Leased To Or 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 2001-1D 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. 2001-1D thereto, dated as of _______ (collectively, the
"AGREEMENT"), by and among the Trustee, the
2
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 2001-1D" (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 Aircraft leased to or owned by the Company.
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 April 1 and October 1 (a "REGULAR DISTRIBUTION DATE"),
commencing _______ 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 with the same force and effect as if made on
such Regular Distribution Date or Special Distribution Date and no 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 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.
3
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.
4
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.
NORTHWEST AIRLINES 2001-1D
PASS 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
REGULAR DISTRIBUTION DATES
AND
SCHEDULED PAYMENTS
REGULAR DISTRIBUTION DATE SCHEDULED PAYMENT
------------------------- -----------------
April 1, 2003 $1,377,282.30
October 1, 2003 1,439,260.01
April 1, 2004 1,504,026.71
October 1, 2004 1,571,707.91
April 1, 2005 1,642,434.76
October 1, 2005 1,716,344.33
April 1, 2006 1,793,579.82
October 1, 2006 1,874,290.92
April 1, 2007 1,958,634.01
October 1, 2007 2,046,772.54
April 1, 2008 2,138,877.30
October 1, 2008 2,235,126.78
April 1, 2009 2,335,707.49
October 1, 2009 2,440,814.32
April 1, 2010 2,550,650.97
October 1, 2010 2,665,430.26
April 1, 2011 2,785,374.62
October 1, 2011 2,910,716.48
April 1, 2012 3,041,698.72
October 1, 2012 3,178,575.16
April 1, 2013 3,321,611.05
October 1, 2013 3,471,083.54
