EX-4(H)(1)
EXHIBIT 4(H)(1)
CONFORMED COPY
ESCROW AND PAYING AGENT AGREEMENT
(Class G)
Dated as of June 28, 2000
among
FIRST SECURITY BANK, NATIONAL ASSOCIATION
as Escrow Agent,
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX XXXXX BARNEY, INC.
CHASE SECURITIES INC.
AND
U.S. BANCORP XXXXX XXXXXXX INC.
as Underwriters,
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Pass Through Trustee
for and on behalf of
Northwest Airlines Pass Through Trust 2000-1G
as Pass Through Trustee,
AND
STATE STREET BANK AND TRUST COMPANY,
as Paying Agent
TABLE OF CONTENTS
Page
SECTION 1. Escrow Agent . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1 Appointment of Escrow Agent . . . . . . . . . . . . 2
Section 1.2 Instruction, Etc. . . . . . . . . . . . . . . . . . 3
Section 1.3 Initial Escrow Amount; Issuance of Escrow
Receipts . . . . . . . . . . . . . . . . . . . . . 4
Section 1.4 Payments to Receiptholders . . . . . . . . . . . . 5
Section 1.5 Mutilated, Destroyed, Lost or Stolen Escrow
Receipt . . . . . . . . . . . . . . . . . . . . . 5
Section 1.6 Additional Escrow Amounts . . . . . . . . . . . . . 6
Section 1.7 Resignation or Removal of Escrow Agent . . . . . . 6
Section 1.8 Persons Deemed Owners . . . . . . . . . . . . . . . 6
Section 1.9 Further Assurances . . . . . . . . . . . . . . . . 6
SECTION 2. Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.1 Appointment of Paying Agent . . . . . . . . . . . . 7
Section 2.2 Establishment of Paying Agent Account . . . . . . . 7
Section 2.3 Payments from Paying Agent Account . . . . . . . . 7
Section 2.4 Withholding Taxes . . . . . . . . . . . . . . . . . 8
Section 2.5 Resignation or Removal of Paying Agent . . . . . . 9
Section 2.6 Notice of Final Withdrawal . . . . . . . . . . . . 9
SECTION 3. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4. Other Actions . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 5. Representations and Warranties of the Escrow Agent . . . . . 10
SECTION 6. Representations and Warranties of the Paying Agent . . . . . 12
SECTION 7. Indemnification . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 8. Amendment, Etc. . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 9. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 10. Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 11. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 12. Governing Law . . . . . . . . . . . . . . . . . . . . . . . 15
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SECTION 13. WAIVER OF JURY TRIAL RIGHT . . . . . . . . . . . . . . . . . 15
SECTION 14. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 15. Subrogation and Third Party Beneficiary . . . . . . . . . . 15
EXHIBITS
Exhibit A Escrow Receipt
Exhibit B Withdrawal Certificate
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This ESCROW AND PAYING AGENT AGREEMENT (Class G) dated as
of June 28, 2000 (as amended, modified or supplemented from time to time,
this "Agreement") among First Security Bank, National Association, a national
banking association, as Escrow Agent (in such capacity, together with its
successors in such capacity, the "Escrow Agent"), Credit Suisse First Boston
Corporation, Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx Xxxxx Barney Inc.,
Chase Securities Inc. and U.S. Bancorp Xxxxx Xxxxxxx Inc., as Underwriters of
the Certificates referred to below (the "Underwriters" and together with
their respective transferees and assigns as registered owners of the
Certificates, the "Investors") under the Underwriting Agreement referred to
below, State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
except as otherwise expressly provided herein, but solely as trustee (in such
capacity, together with its successors in such capacity, the "Pass Through
Trustee") under the Pass Through Trust Agreement referred to below, and State
Street Bank and Trust Company, a Massachusetts trust company, as paying agent
hereunder (in such capacity, together with its successors in such capacity,
the "Paying Agent").
W I T N E S S E T H
WHEREAS, Northwest Airlines Corporation, a Delaware
corporation (the "Guarantor"), Northwest Airlines, Inc., a Minnesota
corporation ("Northwest") and the Pass Through Trustee have entered into a
Trust Supplement, dated as of the date hereof (the "Trust Supplement"), to
the Pass Through Trust Agreement, dated as of June 3, 1999, by and among the
Guarantor, Northwest and the Pass Through Trustee, relating to Northwest
Airlines Pass Through Trust 2000-1G (the "Pass Through Trust") pursuant to
which the Northwest Airlines Pass Through Trust, Series 2000-1G Certificates
referred to therein (the "Certificates") are being issued;
WHEREAS, Northwest and the Underwriters have entered into
an Underwriting Agreement dated as of June 21, 2000 (as amended, modified or
supplemented from time to time in accordance with the terms thereof, the
"Underwriting Agreement") pursuant to which the Pass Through Trustee will
issue and sell the Certificates to the Underwriters;
WHEREAS, Northwest, the Pass Through Trustee, certain
other pass through trustees and certain other persons concurrently herewith
are entering into the Note Purchase Agreement, dated as of the date hereof
(the "Note Purchase Agreement"), pursuant to which the Pass Through Trustee
has agreed to acquire from time to time on or prior to the Delivery Period
Termination Date (as defined in the Note Purchase Agreement) equipment notes
(the "Equipment Notes") issued to finance the acquisition of aircraft by
Northwest, as lessee or as owner, utilizing a portion of the proceeds from
the sale of the Certificates (the "Net Proceeds");
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WHEREAS, the Underwriters and the Pass Through Trustee
intend that the Net Proceeds be held in escrow by the Escrow Agent on behalf
of the Investors, subject to withdrawal upon request by the Pass Through
Trustee and satisfaction of the conditions set forth in the Note Purchase
Agreement for the purpose of purchasing Equipment Notes, and that pending
such withdrawal the Net Proceeds be deposited on behalf of the Escrow Agent
with ABN AMRO Bank N.V., acting through a United States branch, as Depositary
(the "Depositary") under the Deposit Agreement, dated as of the date hereof,
between the Depositary and the Escrow Agent relating to the Pass Through
Trust (as amended, modified or supplemented from time to time in accordance
with the terms thereof, the "Deposit Agreement") pursuant to which, among
other things, the Depositary will pay interest for distribution to the
Investors and establish accounts from which the Escrow Agent shall make
withdrawals upon request of and proper certification by the Pass Through
Trustee;
WHEREAS, the Escrow Agent wishes to appoint the Paying
Agent to pay amounts required to be distributed to the Investors in
accordance with this Agreement; and
WHEREAS, capitalized terms used but not defined herein
shall have the respective meanings set forth or incorporated by reference in
the Pass Through Trust Agreement.
NOW, THEREFORE, in consideration of the obligations
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto hereby
agree as follows:
SECTION 1. Escrow Agent.
Section 1.1 Appointment of Escrow Agent. Each of the
Underwriters, for and on behalf of each of the Investors, hereby irrevocably
appoints, authorizes and directs the Escrow Agent to act as escrow agent and
fiduciary hereunder and under the Deposit Agreement for such specific
purposes and with such powers as are specifically delegated to the Escrow
Agent by the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. Any and all money received and held by the
Escrow Agent under this Agreement or the Deposit Agreement shall be held in
escrow by the Escrow Agent in accordance with the terms of this Agreement.
This Agreement is irrevocable and the Investors' rights with respect to any
monies received and held in escrow by the Escrow Agent under this Agreement
or the Deposit Agreement shall only be as provided under the terms and
conditions of this Agreement and the Deposit Agreement. The Escrow Agent
(which term as used in this sentence shall include reference to its
affiliates and its own and its affiliates' officers, directors, employees and
agents):
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(a) shall have no duties or responsibilities except those
expressly set forth in this Agreement;
(b) shall not be responsible to the Pass Through Trustee
or the Investors for any recitals, statements, representations or
warranties of any person other than itself contained in this
Agreement or the Deposit Agreement or for the failure by the Pass
Through Trustee, the Investors or any other person or entity (other
than the Escrow Agent) to perform any of its obligations hereunder
(whether or not the Escrow Agent shall have any knowledge thereof);
and
(c) shall not be responsible for any action taken or
omitted to be taken by it hereunder or provided for herein or in
connection herewith, except for its own willful misconduct or gross
negligence (or simple negligence in connection with the handling of
funds) or breach of its obligations hereunder.
Section 1.2 Instruction, Etc. The Underwriters, for and
on behalf of each of the Investors, hereby irrevocably instruct the Escrow
Agent, and the Escrow Agent agrees: (a) to enter into the Deposit Agreement
and, if requested by the Company pursuant to Section 5(a)(vi) of the Note
Purchase Agreement, to enter into a Replacement Deposit Agreement with the
Replacement Depositary specified by the Company; (b) to appoint the Paying
Agent as provided in this Agreement; (c) upon receipt at any time and from
time to time prior to the Termination Date (as defined below) of a
certificate substantially in the form of Exhibit B hereto (a "Withdrawal
Certificate") executed by the Pass Through Trustee, together with an attached
Notice of Purchase Withdrawal in substantially the form of Exhibit A to the
Deposit Agreement duly completed by the Pass Through Trustee (the "Applicable
Notice of Purchase Withdrawal" and the withdrawal to which it relates, a
"Purchase Withdrawal"), immediately to execute the Applicable Notice of
Purchase Withdrawal as Escrow Agent and transmit it to the Depositary by
facsimile transmission in accordance with the Deposit Agreement; provided
that, upon the request of the Pass Through Trustee after such transmission,
the Escrow Agent shall cancel such Applicable Notice of Purchase Withdrawal;
(d) upon receipt of a Withdrawal Certificate executed by the Pass Through
Trustee, together with an attached Notice of Replacement Withdrawal in
substantially the form of Exhibit C to the Deposit Agreement (a "Notice of
Replacement Withdrawal") duly completed by the Pass Through Trustee, to (X)
give such Notice of Replacement Withdrawal to the Depositary requesting a
withdrawal, on the date specified in such notice, which shall not be less
than 15 days after such notice is given (the "Replacement Withdrawal Date"),
of all Deposits then held by the Depositary together with, if the Replacement
Withdrawal Date occurs on a Regular Distribution Date, all accrued and unpaid
interest on such Deposits to but excluding the Replacement Withdrawal Date,
and (Y) direct the Depositary to transfer such Deposits on behalf of the
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Escrow Agent to the Replacement Depositary in accordance with the Replacement
Deposit Agreement; and (e) if there are any undrawn Deposits (as defined in
the Deposit Agreement) on the "Termination Date", which shall mean the
earlier of (i) September 30, 2001 and (ii) the day on which the Escrow Agent
receives notice from the Pass Through Trustee that the Pass Through Trustee's
obligation to purchase Equipment Notes under the Note Purchase Agreement has
terminated, to give notice to the Depositary (with a copy to the Paying
Agent) substantially in the form of Exhibit B to the Deposit Agreement
requesting a withdrawal of all of the remaining Deposits, together with
accrued and unpaid interest on such Deposits to the date of withdrawal, on
the 15th day after the date that such notice of withdrawal is given to the
Depositary (or, if not a Business Day, on the next succeeding Business Day)
(a "Final Withdrawal"), provided that if the day scheduled for the Final
Withdrawal in accordance with the foregoing is within ten (10) days before or
after a Regular Distribution Date, then the Escrow Agent shall request that
such requested Final Withdrawal be made on such Regular Distribution Date
(the date of such requested withdrawal, the "Final Withdrawal Date"). If for
any reason the Escrow Agent shall have failed to give the Final Withdrawal
Notice to the Depositary on or before September 30, 2001, and there are
unwithdrawn Deposits on such date, the Final Withdrawal Date shall be deemed
to be October 15, 2001.
Section 1.3 Initial Escrow Amount; Issuance of Escrow
Receipts. The Escrow Agent hereby directs the Underwriters to, and the
Underwriters hereby acknowledge that on the date hereof they shall,
irrevocably deliver to the Depositary on behalf of the Escrow Agent, an
amount in U.S. dollars ("Dollars") and immediately available funds equal to
$476,319,000 for deposit on behalf of the Escrow Agent with the Depositary in
accordance with Section 2.1 of the Deposit Agreement. The Underwriters
hereby instruct the Escrow Agent, upon receipt of such sum from the
Underwriters, to confirm such receipt by executing and delivering to the Pass
Through Trustee an Escrow Receipt in the form of Exhibit A hereto (an "Escrow
Receipt"), (a) to be affixed by the Pass Through Trustee to each Certificate
and (b) to evidence the same percentage interest ("Escrow Interest") in the
Account Amounts (as defined below) as the Fractional Undivided Interest in
the Pass Through Trust evidenced by the Certificate to which it is to be
affixed. The Escrow Agent shall provide to the Pass Through Trustee for
attachment to each Certificate newly issued under and in accordance with the
Pass Through Trust Agreement an executed Escrow Receipt as the Pass Through
Trustee may from time to time request of the Escrow Agent. Each Escrow
Receipt shall be registered by the Escrow Agent in a register (the
"Register") maintained by the Escrow Agent in the same name and same manner
as the Certificate to which it is attached and may not thereafter be detached
from such Certificate to which it is to be affixed prior to the distribution
of the Final Withdrawal pursuant to clause (d) of Section 1.2 hereof (the
"Final Distribution"). After the Final Distribution, no additional Escrow
Receipts shall be issued and the Pass Through Trustee shall request the
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return to the Escrow Agent for cancellation of all outstanding Escrow
Receipts.
Section 1.4 Payments to Receiptholders. All payments and
distributions made to holders of an Escrow Receipt (collectively
"Receiptholders") in respect of the Escrow Receipt shall be made only from
amounts deposited in the Paying Agent Account (as defined below) ("Account
Amounts"). Each Receiptholder, by its acceptance of an Escrow Receipt,
agrees that (a) it will look solely to the Account Amounts for any payment or
distribution due to such Receiptholder pursuant to the terms of the Escrow
Receipt and this Agreement and (b) it will have no recourse to Northwest, the
Pass Through Trustee, the Paying Agent or the Escrow Agent, except as
expressly provided herein or in the Pass Through Trust Agreement. No
Receiptholder shall have any right to vote or in any manner otherwise control
the operation and management of the Paying Agent Account or the obligations
of the parties hereto, nor shall anything set forth herein, or contained in
the terms of the Escrow Receipt, be construed so as to constitute the
Receiptholders from time to time as partners or members of an association.
Section 1.5 Mutilated, Destroyed, Lost or Stolen Escrow
Receipt. If (a) any mutilated Escrow Receipt is surrendered to the Escrow
Agent or the Escrow Agent receives evidence to its satisfaction of the
destruction, loss or theft of any Escrow Receipt and (b) there is delivered
to the Escrow Agent and the Pass Through Trustee such security, indemnity or
bond, as may be required by them to hold each of them harmless, then, absent
notice to the Escrow Agent or the Pass Through Trustee that such destroyed,
lost or stolen Escrow Receipt has been acquired by a bona fide purchaser, and
provided that the requirements of Section 8-405 of the Uniform Commercial
Code in effect in any applicable jurisdiction are met, the Escrow Agent shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Escrow Receipt, a new Escrow Receipt or
Escrow Receipts and of like Escrow Interest in the Account Amounts and
bearing a number not contemporaneously outstanding.
In connection with the issuance of any new Escrow Receipt
under this Section 1.5, the Escrow Agent may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses
of the Pass Through Trustee and the Escrow Agent) connected therewith.
Any duplicate Escrow Receipt issued pursuant to this
Section 1.5 shall constitute conclusive evidence of the appropriate Escrow
Interest in the Account Amounts, as if originally issued, whether or not the
lost, stolen or destroyed Escrow Receipt shall be found at any time.
The provisions of this Section 1.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
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the replacement or payment of mutilated, destroyed, lost or stolen Escrow
Receipts.
Section 1.6 Additional Escrow Amounts. On the date of
any Purchase Withdrawal, the Pass Through Trustee may re-deposit with the
Depositary some or all of the amounts so withdrawn in accordance with Section
2.4 of the Deposit Agreement.
Section 1.7 Resignation or Removal of Escrow Agent.
Subject to the appointment and acceptance of a successor Escrow Agent as
provided below, the Escrow Agent may resign at any time by giving thirty (30)
days' prior written notice thereof to the Investors, but may not otherwise
be removed except for cause by the written consent of the Investors with
respect to Investors representing Escrow Interests aggregating not less than
a majority in interest in the Account Amounts (an "Action of Investors").
Upon any such resignation or removal, the Investors, by an Action of
Investors, shall have the right to appoint a successor Escrow Agent. If no
successor Escrow Agent shall have been so appointed and shall have accepted
such appointment within thirty (30) days after the retiring Escrow Agent's
giving of notice of resignation or the removal of the retiring Escrow Agent,
then the retiring Escrow Agent may appoint a successor Escrow Agent. Any
successor Escrow Agent shall be a bank which has an office in the United
States with a combined capital and surplus of at least $100,000,000. Upon
the acceptance of any appointment as Escrow Agent hereunder by a successor
Escrow Agent, such successor Escrow Agent shall enter into such documents as
the Pass Through Trustee shall require and shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring Escrow Agent, and the retiring Escrow Agent shall be discharged from
its duties and obligations hereunder. No resignation or removal of the
Escrow Agent shall be effective unless a written confirmation shall have been
obtained from each of Xxxxx'x Investors Service, Inc. and Standard & Poor's
Ratings Services, a Division of the XxXxxx-Xxxx Companies, Inc., that the
replacement of the Escrow Agent with the successor Escrow Agent will not
result in (a) a reduction of the rating for the Certificates below the then
current rating for the Certificates or (b) a withdrawal or suspension of the
rating of the Certificates.
Section 1.8 Persons Deemed Owners. Prior to due
presentment of a Certificate for registration of transfer, the Escrow Agent
and the Paying Agent may treat the Person in whose name any Escrow Receipt is
registered (as of the day of determination) as the owner of such Escrow
Receipt for the purpose of receiving distributions pursuant to this Agreement
and for all other purposes whatsoever, and neither the Escrow Agent nor the
Paying Agent shall be affected by any notice to the contrary.
Section 1.9 Further Assurances. The Escrow Agent agrees
to take such actions, and execute such other documents, as may be reasonably
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requested by the Pass Through Trustee in order to effectuate the purposes of
this Agreement and the performance by the Escrow Agent of its obligations
hereunder.
SECTION 2. Paying Agent.
Section 2.1 Appointment of Paying Agent. The Escrow
Agent hereby irrevocably appoints and authorizes the Paying Agent to act as
its paying agent hereunder, for the benefit of the Investors, for such
specific purposes and with such powers as are specifically delegated to the
Paying Agent by the terms of this Agreement, together with such other powers
as are reasonably incidental thereto. Any and all money received and held by
the Paying Agent under this Agreement or the Deposit Agreement shall be held
in the Paying Agent Account for the benefit of the Investors. The Paying
Agent (which term as used in this sentence shall include reference to its
affiliates and its own and its affiliates' officers, directors, employees and
agents):
(a) shall have no duties or responsibilities except those
expressly set forth in this Agreement, and shall not by reason of this
Agreement be a trustee for the Escrow Agent;
(b) shall not be responsible to the Escrow Agent for any
recitals, statements, representations or warranties of any person other then
itself contained in this Agreement or for the failure by the Escrow Agent or
any other person or entity (other than the Paying Agent) to perform any of
its obligations hereunder (whether or not the Paying Agent shall have any
knowledge thereof); and
(c) shall not be responsible for any action taken or
omitted to be taken by it hereunder or provided for herein or in connection
herewith, except for its own willful misconduct or gross negligence (or
simple negligence in connection with the handling of funds).
Section 2.2 Establishment of Paying Agent Account. The
Paying Agent shall establish a deposit account (the "Paying Agent Account")
at State Street Bank and Trust Company in the name of the Escrow Agent. It
is expressly understood by the parties hereto that the Paying Agent is acting
as the paying agent of the Escrow Agent hereunder and that no amounts on
deposit in the Paying Agent Account constitute part of the Trust Property.
Section 2.3 Payments from Paying Agent Account. The
Escrow Agent hereby irrevocably instructs the Paying Agent, and the Paying
Agent agrees to act, as follows:
(a) On each Interest Payment Date (as defined in the
Deposit Agreement) or as soon thereafter as the Paying Agent has confirmed
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receipt in the Paying Agent Account from the Depositary of any amount in
respect of accrued interest on the Deposits, the Paying Agent shall
distribute out of the Paying Agent Account the entire amount deposited
therein by the Depositary. There shall be so distributed to each
Receiptholder of record on the 15th day (whether or not a Business Day)
preceding such Interest Payment Date by check mailed to such Receiptholder,
at the address appearing in the Register, such Receiptholder's pro rata share
(based on the Escrow Interest in the Account Amounts held by such
Receiptholder) of the total amount of interest deposited by the Depositary in
the Paying Agent Account on such date, except that, with respect to Escrow
Receipts registered on the Record Date in the name of The Depository Trust
Company, a New York corporation ("DTC"), such distribution shall be made by
wire transfer in immediately available funds to the account designated by
DTC.
(b) Upon the confirmation by the Paying Agent of receipt
in the Paying Agent Account from the Depositary of any amount in respect of
the Final Withdrawal, the Paying Agent shall forthwith distribute the entire
amount of the Final Withdrawal deposited therein by the Depositary. There
shall be so distributed to each Receiptholder of record on the 15th day
(whether or not a Business Day) preceding the Final Withdrawal Date by check
mailed to such Receiptholder, at the address appearing in the Register, such
Receiptholder's pro rata share (based on the Escrow Interest in the Account
Amounts held by such Receiptholder) of the total amount in the Paying Agent
Account on account of such Final Withdrawal, except that, with respect to
Escrow Receipts registered on the Record Date in the name of DTC, such
distribution shall be made by wire transfer in immediately available funds to
the account designated by DTC.
(c) If any payment of interest or principal in respect of
the Final Withdrawal is not received by the Paying Agent within five (5) days
of the applicable date when due, then it shall be distributed to
Receiptholders after actual receipt by the Paying Agent on the same basis as
a Special Payment is distributed under the Pass Through Trust Agreement.
(d) The Paying Agent shall include with any check mailed
pursuant to this Section any notice required to be distributed under the Pass
Through Trust Agreement that is furnished to the Paying Agent by the Pass
Through Trustee.
Section 2.4 Withholding Taxes. The Paying Agent shall
exclude and withhold from each distribution of accrued interest on the
Deposits (as defined in the Deposit Agreement) and any amount in respect of
the Final Withdrawal any and all withholding taxes applicable thereto as
required by law. The Paying Agent agrees to act as such withholding agent
and, in connection therewith, whenever any present or future taxes or similar
charges are required to be withheld with respect to any amounts payable in
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respect of the Deposits (as defined in the Deposit Agreement) or the escrow
amounts, to withhold such amounts and timely pay the same to the appropriate
authority in the name of and on behalf of the Receiptholders, that it will
file any necessary withholding tax returns or statements when due, and that,
as promptly as possible after the payment thereof, it will deliver to each
such Receiptholder appropriate documentation showing the payment thereof,
together with such additional documentary evidence as such Receiptholder may
reasonably request from time to time. The Paying Agent agrees to file any
other information reports as it may be required to file under United States
law.
Section 2.5 Resignation or Removal of Paying Agent.
Subject to the appointment and acceptance of a successor Paying Agent as
provided below, the Paying Agent may resign at any time by giving thirty (30)
days' prior written notice thereof to the Escrow Agent, but may not
otherwise be removed except for cause by the Escrow Agent. Upon any such
resignation or removal, the Escrow Agent shall have the right to appoint a
successor Paying Agent. If no successor Paying Agent shall have been so
appointed and shall have accepted such appointment within thirty (30) days
after the retiring Paying Agent's giving of notice of resignation or the
removal of the retiring Paying Agent, then the retiring Paying Agent may
appoint a successor Paying Agent. Any Successor Paying Agent shall be a bank
which has an office in the United States with a combined capital and surplus
of at least US$100,000,000. Upon the acceptance of any appointment as Paying
Agent hereunder by a successor Paying Agent, such successor Paying Agent
shall enter into such documents as the Escrow Agent shall require and shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Paying Agent, and the retiring Paying
Agent shall be discharged from its duties and obligations hereunder.
Section 2.6 Notice of Final Withdrawal. Promptly after
receipt by the Paying Agent of notice that the Escrow Agent has requested a
Final Withdrawal or that a Final Withdrawal will be made, the Paying Agent
shall cause notice of the distribution of the Final Withdrawal to be mailed
to each of the Receiptholders at its address as it appears in the Register.
Such notice shall be mailed not less than fifteen (15) days prior to the
Final Withdrawal Date. Such notice shall set forth:
(a) the Final Withdrawal Date and the date for
determining Receiptholders of record who shall be entitled to receive
distributions in respect of the Final Withdrawal;
(b) the amount of the payment in respect of the Final
Withdrawal for each $1,000 face amount Certificate (based on
information provided by the Pass Through Trustee) and the amount
thereof constituting unused Deposits (as defined in the Deposit
Agreement) and interest thereon; and
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(c) if the Final Withdrawal Date is the same date as a
Regular Distribution Date, the total amount to be received on such
date for each $1,000 face amount Certificate (based on information
provided by the Pass Through Trustee).
Such mailing may include any notice required to be given
to Certificateholders in connection with such distribution pursuant to the
Pass Through Trust Agreement.
SECTION 3. Payments. If, notwithstanding the
instructions in Article IV of the Deposit Agreement that all amounts payable
to the Escrow Agent under the Deposit Agreement be paid by the Depositary
directly to the Paying Agent or the Pass Through Trustee (depending on the
circumstances), the Escrow Agent receives any payment thereunder, then the
Escrow Agent shall forthwith pay such amount in Dollars and in immediately
available funds by wire transfer to (a) in the case of a payment of accrued
interest on the Deposits (as defined in the Deposit Agreement) or any Final
Withdrawal, directly to the Paying Agent Account and (b) in the case of any
Purchase Withdrawal, directly to the Pass Through Trustee or its designee as
specified and in the manner provided in the Applicable Notice of Purchase
Withdrawal. The Escrow Agent hereby waives any and all rights of set-off,
combination of accounts, right of retention or similar right (whether arising
under applicable law, contract or otherwise) it may have against amounts
payable to the Paying Agent howsoever arising.
SECTION 4. Other Actions. The Escrow Agent shall take
such other actions under or in respect of the Deposit Agreement (including,
without limitation, the enforcement of the obligations of the Depositary
thereunder) as the Investors, by an Action of Investors, may from time to
time request.
SECTION 5. Representations and Warranties of the Escrow
Agent. The Escrow Agent represents and warrants to Northwest, the Investors,
the Paying Agent and the Pass Through Trustee as follows:
(a) it is a national banking association duly organized
and validly existing in good standing under the laws of the United
States of America;
(b) it has full power, authority and legal right to
conduct its business and operations as currently conducted and to
enter into and perform its obligations under this Agreement and the
Deposit Agreement;
(c) the execution, delivery and performance of each of
this Agreement and the Deposit Agreement have been duly authorized by
all necessary corporate action on the part of it and do not require
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any stockholder approval, or approval or consent of any trustee or
holder of any indebtedness or obligations of it, and each such
document has been duly executed and delivered by it and constitutes
its legal, valid and binding obligations enforceable against it in
accordance with the terms hereof or thereof except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws or equitable principles of
general application to or affecting the enforcement of creditors'
rights generally (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(d) no authorization, consent or approval of or other
action by, and no notice to or filing with, any United States federal
or state governmental authority or regulatory body is required for
the execution, delivery or performance by it of this Agreement or the
Deposit Agreement;
(e) neither the execution, delivery or performance by it
of this Agreement or the Deposit Agreement, nor compliance with the
terms and provisions hereof or thereof, conflicts or will conflict
with or results or will result in a breach or violation of any of the
terms, conditions or provisions of, or will require any consent or
approval under, any law, governmental rule or regulation or the
charter documents, as amended, or bylaws, as amended, of it or any
similar instrument binding on it or any order, writ, injunction or
decree of any court or governmental authority against it or by which
it or any of its properties is bound or any indenture, mortgage or
contract or other agreement or instrument to which it is a party or
by which it or any of its properties is bound, or constitutes or will
constitute a default thereunder or results or will result in the
imposition of any lien upon any of its properties; and
(f) there are no pending or, to its knowledge, threatened
actions, suits, investigations or proceedings (whether or not
purportedly on behalf of it) against or affecting it or any of its
property before or by any court or administrative agency which, if
adversely determined, (A) would adversely affect the ability of it to
perform its obligations under this Agreement or the Deposit Agreement
or (B) would call into question or challenge the validity of this
Agreement or the Deposit Agreement or the enforceability hereof or
thereof in accordance with the terms hereof or thereof, nor is the
Escrow Agent in default with respect to any order of any court,
governmental authority, arbitration board or administrative agency so
as to adversely affect its ability to perform its obligations under
this Agreement or the Deposit Agreement.
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SECTION 6. Representations and Warranties of the Paying
Agent. The Paying Agent represents and warrants to Northwest, the Investors,
the Escrow Agent and the Pass Through Trustee as follows:
(a) it is a trust company duly organized and validly
existing in good standing under the laws of the Commonwealth of
Massachusetts;
(b) it has full power, authority and legal right to
conduct its business and operations as currently conducted and to
enter into and perform its obligations under this Agreement;
(c) the execution, delivery and performance of this
Agreement has been duly authorized by all necessary corporate action
on the part of it and does not require any stockholder approval, or
approval or consent of any trustee or holder of any indebtedness or
obligations of it, and such document has been duly executed and
delivered by it and constitutes its legal, valid and binding
obligations enforceable against it in accordance with the terms
hereof except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the
enforcement of creditors' rights generally (regardless of whether
such enforceability is considered in a proceeding in equity or at
law);
(d) no authorization, consent or approval of or other
action by, and no notice to or filing with, any United States federal
or state governmental authority or regulatory body is required for
the execution, delivery or performance by it of this Agreement;
(e) neither the execution, delivery or performance by it
of this Agreement, nor compliance with the terms and provisions
hereof, conflicts or will conflict with or results or will result in
a breach or violation of any of the terms, conditions or provisions
of, or will require any consent or approval under, any law,
governmental rule or regulation or the charter documents, as amended,
or bylaws, as amended, of it or any similar instrument binding on it
or any order, writ, injunction or decree of any court or governmental
authority against it or by which it or any of its properties is bound
or any indenture, mortgage or contract or other agreement or
instrument to which it is a party or by which it or any of its
properties is bound, or constitutes or will constitute a default
thereunder or results or will result in the imposition of any lien
upon any of its properties; and
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(f) there are no pending or, to its knowledge, threatened
actions, suits, investigations or proceedings (whether or not
purportedly on behalf of it) against or affecting it or any of its
property before or by any court or administrative agency which, if
adversely determined, (A) would adversely affect the ability of it to
perform its obligations under this Agreement or (B) would call into
question or challenge the validity of this Agreement or the
enforceability hereof in accordance with the terms hereof, nor is the
Paying Agent in default with respect to any order of any court,
governmental authority, arbitration board or administrative agency so
as to adversely affect its ability to perform its obligations under
this Agreement.
SECTION 7. Indemnification. Except for actions expressly
required of the Escrow Agent or the Paying Agent hereunder, each of the
Escrow Agent and the Paying Agent shall in all cases be fully justified in
failing or refusing to act hereunder unless it shall have been indemnified by
the party requesting such action in a manner reasonably satisfactory to it
against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. In the event
Northwest requests any amendment to any Operative Document (as defined in the
Note Purchase Agreement), the Pass Through Trustee agrees to pay all
reasonable fees and expenses (including, without limitation, fees and
disbursements of counsel) of the Escrow Agent and the Paying Agent in
connection therewith.
SECTION 8. Amendment, Etc. Upon request of the Pass
Through Trustee and approval by an Action of Investors, the Escrow Agent
shall enter into an amendment to this Agreement, so long as such amendment
does not adversely affect the rights or obligations of the Escrow Agent or
the Paying Agent, provided that upon request of the Pass Through Trustee and
without any consent of the Investors, the Escrow Agent shall enter into an
amendment to this Agreement for any of the following purposes:
(a) to correct or supplement any provision in this
Agreement which may be defective or inconsistent with any other
provision herein or to cure any ambiguity or correct any mistake or
to modify any other provision with respect to matters or questions
arising under this Agreement, provided that any such action shall not
materially adversely affect the interests of the Investors; or
(b) to comply with any requirement of the SEC, applicable
law, rules or regulations of any exchange or quotation system on
which the Certificates are listed or any regulatory body; or
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(c) to evidence and provide for the acceptance of
appointment under this Agreement of a successor Escrow Agent,
successor Paying Agent or successor Pass Through Trustee.
SECTION 9. Notices. Unless otherwise expressly provided
herein, any notice or other communication under this Agreement shall be in
writing (including by facsimile) and shall be deemed to be given and
effective upon receipt thereof (or, if received outside of business hours, on
the next opening of business on a Business Day). All notices shall be sent
to (a) in the case of the Investors, as their respective addresses shall
appear in the Register, (b) in the case of the Escrow Agent, First Security
Bank, National Association, 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, XX 00000,
Attention: Corporate Trust Services (Telecopier: (000) 000-0000), (c) in the
case of the Pass Through Trustee, State Street Bank and Trust Company of
Connecticut, National Association, 000 Xxxxxx Xxxxxx, Xxxxxxx Square,
Hartford, Connecticut 06103, Attention: Corporate/Muni Department
(Telecopier: (000) 000-0000) or (d) in the case of the Paying Agent, State
Street Bank and Trust Company, 0 Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxx, XX
00000, Attention: Corporate Trust Administration (Telecopier: (617) 664-
5151), in each case with a copy to Xxxxxxxxx Xxxxxxxx, Xxx., Xxxxxxxxxx
X0000, 0000 Xxxxxxxxx Xxxxx, Xx. Xxxx, XX 00000-0000, Attention: Treasurer
(Telecopier: (000) 000-0000) (or at such other address as any such party may
specify from time to time in a written notice to the other parties). On or
prior to the execution of this Agreement, the Pass Through Trustee has
delivered to the Escrow Agent a certificate containing specimen signatures of
the representatives of the Pass Through Trustee who are authorized to give
notices and instructions with respect to this Agreement. The Escrow Agent
may conclusively rely on such certificate until the Escrow Agent receives
written notice from the Pass Through Trustee to the contrary.
SECTION 10. Transfer. No party hereto shall be entitled
to assign or otherwise transfer this Agreement (or any interest herein) other
than (in the case of the Escrow Agent) to a successor escrow agent under
Section 1.7 hereof or (in the case of the Paying Agent) to a successor paying
agent under Section 2.5 hereof, and any purported assignment in violation
thereof shall be void. This Agreement shall be binding upon the parties
hereto and their respective successors and (in the case of the Escrow Agent
and the Paying Agent) their respective permitted assigns.
SECTION 11. Entire Agreement. This Agreement sets forth
all of the promises, covenants, agreements, conditions and understandings
among the Escrow Agent, the Paying Agent, the Underwriters and the Pass
Through Trustee with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements and undertakings, inducements or
conditions, express or implied, oral or written.
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SECTION 12. Governing Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 13. WAIVER OF JURY TRIAL RIGHT. EACH OF THE
ESCROW AGENT, THE PAYING AGENT, THE INVESTORS AND THE PASS THROUGH TRUSTEE
ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A
TRIAL BY JURY.
SECTION 14. Counterparts. This Agreement may be executed
in one or more counterparts, all of which taken together shall constitute one
instrument.
SECTION 15. Subrogation and Third Party Beneficiary. To
the extent that the Policy Provider makes any payment under the Policy in
respect of an Escrow Receipt as a result of the Depositary's failure to make
a scheduled interest payment on a Deposit to the Paying Agent Account, the
Policy Provider shall be subrogated to the rights of the holder of such
Escrow Receipt in respect thereof to the extent of such payment. The Policy
Provider shall be an express third party beneficiary of this Section 15 to
the extent necessary to enforce such rights of subrogation.
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IN WITNESS WHEREOF, the Escrow Agent, the Paying Agent,
the Underwriters and the Pass Through Trustee have caused this Escrow and
Paying Agent Agreement (Class G) to be duly executed as of the day and year
first above written.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not in
its individual capacity, but solely as Pass
Through Trustee for and on behalf of
Northwest Airlines Pass Through Trust
2000-1G
By:_______________________________________
Name:
Title:
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Escrow Agent
By:_______________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Paying Agent
By:_______________________________________
Name:
Title:
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CREDIT SUISSE FIRST BOSTON CORPORATION,
XXXXXX XXXXXXX & CO. INCORPORATED,
XXXXXXX XXXXX BARNEY, INC.,
CHASE SECURITIES INC. and
U.S. BANCORP XXXXX XXXXXXX INC., as
Underwriters
By: CREDIT SUISSE FIRST BOSTON
CORPORATION
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
-00-
XXXXXXX X
Xxxxxxxxx Xxxxxxxx 0000-0X Escrow Receipt No. ____
This Escrow Receipt evidences a fractional undivided
interest in amounts ("Account Amounts") from time to time deposited into a
certain paying agent account (the "Paying Agent Account") described in the
Escrow and Paying Agent Agreement (Class G) dated as of June 28, 2000 (as
amended, modified or supplemented from time to time, the "Escrow and Paying
Agent Agreement") among First Security Bank, National Association, a national
banking association, as Escrow Agent (in such capacity, together with its
successors in such capacity, the "Escrow Agent"), Credit Suisse First Boston
Corporation, Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx Xxxxx Barney, Inc.,
Chase Securities Inc. and U.S. Bancorp Xxxxx Xxxxxxx Inc., as Underwriters,
State Street Bank and Trust Company of Connecticut, National Association, as
Pass Through Trustee (in such capacity, together with its successors in such
capacity, the "Pass Through Trustee") and State Street Bank and Trust Company
as paying agent (in such capacity, together with its successors in such
capacity, the "Paying Agent"). Capitalized terms not defined herein shall
have the meanings assigned to them in the Escrow and Paying Agent Agreement.
This Escrow Receipt is issued under and is subject to the
terms, provisions and conditions of the Escrow and Paying Agent Agreement. By
virtue of its acceptance hereof the holder of this Escrow Receipt assents and
agrees to be bound by the provisions of the Escrow and Paying Agent Agreement
and this Escrow Receipt.
This Escrow Receipt represents a fractional undivided
interest in amounts deposited from time to time in the Paying Agent Account,
and grants or represents no rights, benefits or interests of any kind in
respect of any assets or property other than such amounts. This Escrow
Receipt evidences the same percentage interest in the Account Amounts as the
Fractional Undivided Interest in the Pass Through Trust evidenced by the
Certificate to which this Escrow Receipt is affixed.
All payments and distributions made to Receiptholders in
respect of the Escrow Receipt shall be made only from Account Amounts
deposited in the Paying Agent Account. The holder of this Escrow Receipt, by
its acceptance of this Escrow Receipt, agrees that it will look solely to the
Account Amounts for any payment or distribution due to it pursuant to this
Escrow Receipt and that it will not have any recourse to Northwest, the Pass
Through Trustee, the Paying Agent or the Escrow Agent, except as expressly
provided herein or in the Pass Through Trust Agreement. No Receiptholder of
this Escrow Receipt shall have any right to vote or in any manner otherwise
control the operation and management of the Paying Agent Account, nor shall
anything set forth herein, or contained in the terms of this Escrow Receipt,
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be construed so as to constitute the Receiptholders from time to time as
partners or members of an association.
This Escrow Receipt may not be assigned or transferred
except in connection with the assignment or transfer of the Certificate to
which this Escrow Receipt is affixed. After payment to the holder hereof of
its Escrow Interest in the Final Distribution, upon the request of the Pass
Through Trustee, the holder hereof will return this Escrow Receipt to the
Pass Through Trustee.
The Paying Agent may treat the person in whose name the
Certificate to which this Escrow Receipt is attached as the owner hereof for
all purposes, and the Paying Agent shall not be affected by any notice to the
contrary.
THIS ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Escrow Agent has caused this
Escrow Receipt to be duly executed.
Dated: June 28, 2000
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Escrow Agent
By:_______________________________________
Name:
Title:
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EXHIBIT B
Withdrawal Certificate
(Class G)
First Security Bank, National Association,
as Escrow Agent
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, XX 00000
Attention: Corporate Trust Services
Telecopier: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Escrow and Paying Agent
Agreement, dated as of June 28, 2000 (the "Agreement"). We hereby certify to
you that the conditions to the obligations of the undersigned to execute a
Participation Agreement pursuant to the Note Purchase Agreement have been
satisfied. Pursuant to Section 1.2(c) of the Agreement, please execute the
attached Notice of Withdrawal and immediately transmit by facsimile to the
Depositary, at (000) 000-0000.
Very truly yours,
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not in
its individual capacity but solely as Pass
Through Trustee
By:_______________________________________
Name:
Title:
Dated: _________, ____
-1-
NOTICE OF PURCHASE WITHDRAWAL
ABN AMRO Bank N.V., Chicago Branch
000 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxxxx
Telecopier: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Deposit Agreement (Class G) dated
as of June 28, 2000 (the "Deposit Agreement") between First Security Bank,
National Association, as Escrow Agent, and ABN AMRO Bank N.V., Chicago
Branch, as Depositary (the "Depositary").
In accordance with Section 2.3(a) of the Deposit
Agreement, the undersigned hereby requests the withdrawal of the entire
amount of the Deposit, $_________, Account No. __________.
The undersigned hereby directs the Depositary to pay the
proceeds of the Deposit to ________________, Account No. ___________,
Reference: ___________ on __________, _____, upon the telephonic request of
a representative of the Pass Through Trustee.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Escrow Agent
By:_______________________________
Name:
Title:
Dated: ___________, ____
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