EXECUTION COPY
Exhibit 4(g)
NOTE PURCHASE AGREEMENT
Dated as of June 1, 2001
Among
NORTHWEST AIRLINES, INC.,
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Pass Through Trustee under each of the Pass Through Trust Agreements
STATE STREET BANK AND TRUST COMPANY,
as Subordination Agent
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as Escrow Agent
and
STATE STREET BANK AND TRUST COMPANY,
as Paying Agent
INDEX TO NOTE PURCHASE AGREEMENT
Page
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TABLE OF CONTENTS
Section 1. Definitions......................................................2
Section 2. Financing of Aircraft............................................2
Section 3. Conditions Precedent.............................................6
Section 4. Representations and Warranties...................................7
Section 5. Covenants.......................................................11
Section 6. Notices.........................................................13
Section 7. Expenses........................................................13
Section 8. Further Assurances..............................................13
Section 9. Miscellaneous...................................................14
Section 10. Indemnity......................................................14
Section 11. Series D Equipment Notes.......................................17
Section 12. Termination....................................................19
Section 13. Governing Law..................................................19
SCHEDULES
Schedule I Aircraft and Scheduled Closing Months
Schedule II Trust Supplements
Schedule III Deposit Agreements
Schedule IV Escrow and Paying Agent Agreements
Schedule V Mandatory Document Terms
Schedule VI Mandatory Economic Terms
Schedule VII Aggregate Amortization Schedule
ANNEX
Annex A Definitions
EXHIBITS
Exhibit A-1 Form of Leased Aircraft Participation Agreement
Exhibit A-2 Form of Lease
Exhibit A-3 Form of Leased Aircraft Indenture
Exhibit A-4(a) Form of Aircraft Purchase Agreement Assignment
Exhibit A-4(b) Form of Aircraft Purchase Agreement Assignment
Exhibit A-5 Form of Leased Aircraft Trust Agreement
Exhibit A-6 Form of Leased Aircraft Guarantee
Exhibit C-1 Form of Owned Aircraft Participation Agreement
Exhibit C-2 Form of Owned Aircraft Indenture
Exhibit C-3 Form of Owned Aircraft Guarantee
Exhibit D Form of Closing Notice
Exhibit E Form of Trust Agreement
Exhibit F-1 Form of Opinion of Xxxxxxxx, Xxxxxx & Finger
Exhibit F-2 Form of Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx
Exhibit F-3 Form of Opinion of in-house counsel to the Company and
Guarantor
Exhibit F-4 Form of Opinion of Xxxxxxx Xxxx LLP
Exhibit G Form of Class D Trust Supplement
NOTE PURCHASE AGREEMENT
This
NOTE PURCHASE AGREEMENT, dated as of June 1, 2001, among
(i) Northwest Airlines, Inc., a Minnesota corporation (the "COMPANY"), (ii)
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 each of the
separate Pass Through Trust Agreements (as defined below), (iii) State Street
Bank and Trust Company, a Massachusetts trust company, as subordination agent
and trustee (in such capacity together with its successors in such capacity, the
"SUBORDINATION AGENT") under the Intercreditor Agreement (as defined below),
(iv) Xxxxx Fargo Bank Northwest, National Association, a national banking
association, as Escrow Agent (in such capacity together with its successors in
such capacity, the "ESCROW AGENT"), under each of the Escrow and Paying Agent
Agreements (as defined below) and (v) State Street Bank and Trust Company, a
Massachusetts trust company, as Paying Agent (in such capacity together with its
successors in such capacity, the "PAYING AGENT") under each of the Escrow and
Paying Agent Agreements.
W I T N E S S E T H:
WHEREAS, the Company has commitments from AVSA, S.A.R.L.
("AIRBUS") and The Boeing Company ("BOEING") pursuant to the Aircraft Purchase
Agreements for the delivery of the 15 Airbus A319-100 aircraft, six Boeing
757-300 aircraft and two Boeing 747-400 aircraft listed in Schedule I hereto
(together with any aircraft substituted therefor in accordance with an Aircraft
Purchase Agreement prior to the delivery thereof, the "ELIGIBLE AIRCRAFT"), and
the Company wishes to finance pursuant to this Agreement a portion of the
purchase price of (i) nine of the 15 Airbus A319-100 aircraft, (ii) three of the
six Boeing 757-300 aircraft and (iii) the two Boeing 747-400 aircraft included
in the Eligible Aircraft (such aircraft to be financed hereunder, the
"AIRCRAFT");
WHEREAS, pursuant to the Basic Pass Through Trust Agreement
and each of the Trust Supplements set forth in Schedule II hereto, and
concurrently with the execution and delivery of this Agreement, separate grantor
trusts (collectively, the "PASS THROUGH TRUSTS" and, individually, a "PASS
THROUGH TRUST") have been created to facilitate certain of the transactions
contemplated hereby, including, without limitation, the issuance and sale of
pass through certificates pursuant thereto (collectively, the "CERTIFICATES") to
provide for a portion of the financing of the Aircraft;
WHEREAS, the Company has entered into the Underwriting
Agreement dated as of May 22, 2001 (the "UNDERWRITING AGREEMENT") with the
several underwriters (the "UNDERWRITERS") named therein, which provides that the
Company will cause the Pass Through Trustee of each of the Class A-1 Trust, the
Class A-2 Trust, the Class B Trust and the Class C Trust to issue and sell the
Class A-1 Certificates, the Class A-2 Certificates, the Class B Certificates and
the Class C Certificates to the Underwriters;
WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) the Escrow Agents and the Depositaries entered into the Deposit
Agreements set forth in Schedule III hereto (the "DEPOSIT AGREEMENTS") whereby
the applicable Escrow Agent agreed to
direct the Underwriters to make certain deposits referred to therein on the
Issuance Date (the "INITIAL DEPOSITS") and to permit the applicable Pass Through
Trustee to make additional deposits from time to time thereafter (the Initial
Deposits together with such additional deposits are collectively referred to as
the "DEPOSITS") and (ii) the Pass Through Trustees, the Underwriters, the Paying
Agents and the Escrow Agents entered into the Escrow and Paying Agent Agreements
set forth in Schedule IV hereto (the "ESCROW AND PAYING AGENT AGREEMENTS")
whereby, among other things, (a) the applicable Escrow Agents have directed the
Underwriters, and the Underwriters agreed to deliver an amount equal to the
amount of the Initial Deposits to the applicable Depositary on behalf of the
applicable Escrow Agent and (b) the applicable Escrow Agent, upon the applicable
Depositary receiving such amount, has agreed to deliver escrow receipts to be
affixed to each Certificate;
WHEREAS, the Company will determine whether to enter into a
leveraged lease transaction as lessee with respect to an Aircraft (a "LEASED
AIRCRAFT") or to issue secured equipment notes in order to finance an Aircraft
(an "OWNED AIRCRAFT") and will give to the Pass Through Trustee a Closing Notice
(as defined below) specifying its election;
WHEREAS, upon receipt of a Closing Notice with respect to an
Aircraft, subject to the terms and conditions of this Agreement, the applicable
Pass Through Trustees will enter into the applicable Financing Agreements
relating to such Aircraft;
WHEREAS, on the Closing Date under the applicable Financing
Agreements, each Pass Through Trustee will fund its purchase of Equipment Notes
with the proceeds of one or more Deposits withdrawn by the applicable Escrow
Agent under the related Deposit Agreement bearing the same interest rate as the
Certificates issued by such Pass Through Trust; and
WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) Landesbank Hessen-Thuringen Girozentrale, a public law banking
institution organized under the laws of Germany (the "LIQUIDITY PROVIDER"), has
entered into four (4) revolving credit agreements (each, a "LIQUIDITY
FACILITY"), one each for the benefit of the Certificate Holders of each of the
Class A-1 Trust, the Class A-2 Trust, the Class B Trust and the Class C Trust
with the Subordination Agent, as agent for the Pass Through Trustee on behalf of
each such Pass Through Trust and (ii) each Pass Through Trustee, the Liquidity
Provider and the Subordination Agent have entered into the Intercreditor
Agreement, dated as of the date hereof (the "INTERCREDITOR AGREEMENT");
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual agreements herein contained and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used but not defined
herein shall have the respective meanings set forth or incorporated by reference
in Annex A.
SECTION 2. FINANCING OF AIRCRAFT. (a) The Company confirms
that it entered into the applicable Aircraft Purchase Agreements with Airbus and
Boeing, as the case may be, pursuant to which it has agreed to purchase, and
Airbus and Boeing have agreed to deliver, the
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Eligible Aircraft in the months specified in Schedule I hereto, all on and
subject to terms and conditions specified in the applicable Aircraft Purchase
Agreements. The Company agrees to finance the Aircraft in the manner provided
herein, all on and subject to the terms and conditions hereof and of the
relevant Financing Agreements.
(b) In furtherance of the foregoing, the Company agrees
to give the parties hereto, each Depositary and each of the Rating Agencies not
less than two (2) Business Days' prior notice (a "CLOSING NOTICE") of the
scheduled closing date (the "SCHEDULED CLOSING DATE") (or, in the case of a
Substitute Closing Notice under Section 2(f) or (g) hereof, one (1) Business
Day's prior notice) of a financing in respect of each Aircraft, which notice
shall:
i. specify whether the Company has elected to treat such
Aircraft as a Leased Aircraft or an Owned Aircraft;
ii. specify the Scheduled Closing Date on which the
financing therefor in the manner provided herein shall be consummated;
iii. instruct the Pass Through Trustees to instruct each
Escrow Agent to provide a Notice of Purchase Withdrawal to the
Depositary with respect to the Equipment Notes to be issued in
connection with the financing of such Aircraft;
iv. instruct the Pass Through Trustees to enter into the
Participation Agreement with respect to such Aircraft in such form and
at such a time on or before the Scheduled Closing Date specified in
such Closing Notice and to perform its obligations thereunder;
v. specify the aggregate principal amount of each series
of Equipment Notes to be issued, and purchased by the Pass Through
Trustees, in connection with the financing of such Aircraft on such
Scheduled Closing Date (which shall in all respects comply with the
Mandatory Economic Terms);
vi. if such Aircraft is to be a Leased Aircraft, certify
that the related Owner Participant (A) is not an Affiliate of the
Company and (B) based on the representations of such Owner Participant,
is either (1) a Qualified Owner Participant or (2) any other person the
obligations of which under the Owner Participant Documents (as defined
in the applicable Participation Agreement) are guaranteed by a
Qualified Owner Participant.
vii. if applicable, include the information and Rating
Agency Notices referred to in Section 11(c).
Notwithstanding the foregoing, in the event the Scheduled
Closing Date for any Aircraft to be financed or refinanced pursuant to the terms
hereof is on or within 3 Business Days following the date of issuance of the
Certificates, the Closing Notice therefor may be delivered to the parties hereto
on such Scheduled Closing Date.
(c) Upon receipt of a Closing Notice, the Pass Through
Trustees shall, and shall cause the Subordination Agent to, enter into and
perform their obligations under the Participation Agreement specified in such
Closing Notice, PROVIDED, however, that such
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Participation Agreement and the other Financing Agreements to be entered into
pursuant to such Participation Agreement shall be in the forms thereof annexed
hereto in all material respects with such changes therein as shall have been
requested by the related Owner Participant (in the case of Lease Financing
Agreements), agreed to by the Company and, if modified in any material respect,
as to which Rating Agency Confirmation shall have been obtained from each Rating
Agency by the Company (to be delivered by the Company to the applicable Pass
Through Trustee on or before the relevant Closing Date, it being understood that
if Rating Agency Confirmation shall have been received with respect to any
Financing Agreements and such Financing Agreements are utilized for subsequent
Aircraft (or Substitute Aircraft) without material modifications, no additional
Rating Agency Confirmation shall be required); PROVIDED, however, that the
relevant Financing Agreements as executed and delivered shall not vary the
Mandatory Economic Terms and shall contain the Mandatory Document Terms (as such
Mandatory Document Terms may be modified in accordance with Schedule V hereto).
Notwithstanding the foregoing, if any Financing Agreement annexed hereto shall
not have been reviewed by either Rating Agency prior to the Issuance Date, then,
prior to the use thereof in connection with the financing of any Aircraft
hereunder, the Company shall obtain from each Rating Agency a confirmation that
the use of such Financing Agreement would not result in (A) a reduction of the
rating for any Class of Certificates below the then current rating for such
Class of Certificates or (B) a withdrawal or suspension of the rating of any
Class of Certificates.
(d) With respect to each Aircraft, the Company shall
cause (i) State Street Bank and Trust Company (or such other person that meets
the eligibility requirements to act as loan trustee under the Leased Aircraft
Indenture or Owned Aircraft Indenture) to execute as Loan Trustee the Financing
Agreements relating to such Aircraft to which such Loan Trustee is intended to
be a party and (ii)
Northwest Airlines Corporation to execute a Guarantee, and
shall concurrently therewith execute such Financing Agreements to which the
Company is intended to be a party and perform its respective obligations
thereunder. Upon the request of either Rating Agency, the Company shall deliver
or cause to be delivered to each Rating Agency a true and complete copy of each
Financing Agreement relating to the financing of each Aircraft together with a
true and complete set of the closing documentation (including legal opinions)
delivered to the related Loan Trustee, Subordination Agent and Pass Through
Trustee under the related Participation Agreement.
(e) If after giving any Closing Notice, there shall be a
delay in the delivery of the Aircraft referred to therein, or if on the
Scheduled Closing Date of any Aircraft the financing thereof in the manner
contemplated hereby shall not be consummated for whatever reason, the Company
shall give the parties hereto prompt notice thereof. Concurrent with the giving
of such notice of postponement or subsequent thereto, the Company shall give the
parties hereto a substitute Closing Notice specifying the date (the "SUBSTITUTE
CLOSING DATE") to which the applicable financing of such Aircraft or of another
Eligible Aircraft of the same type in lieu thereof shall have been rescheduled
which shall be a Business Day before the Cut-Off Date on which the Escrow Agents
shall be entitled to withdraw one or more Deposits under each of the applicable
Deposit Agreements to enable each applicable Pass Through Trustee to fund its
purchase of the related Equipment Notes. Upon receipt of any such notice of
postponement, each applicable Pass Through Trustee shall comply with its
obligations under Article IV of each of the Trust Supplements and thereafter the
financing or refinancing of such Aircraft shall take
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place on the Substitute Closing Date therefor (all on and subject to the terms
and conditions of the relevant Financing Agreements) unless further postponed as
provided herein.
(f) Anything in this Section 2 to the contrary
notwithstanding, the Company shall have the right at any time on or before the
Scheduled Closing Date of any Aircraft, and subsequent to its giving a Closing
Notice therefor, to postpone the Scheduled Closing Date of such Aircraft so as
to enable the Company to change its election to treat such Aircraft as a Leased
Aircraft or an Owned Aircraft by written notice of such postponement to the
other parties hereto. The Company shall subsequently give the parties hereto a
substitute Closing Notice complying with the provisions of Section 2(b) hereof
and specifying the new Closing Date for such postponed Aircraft (which shall be
a Business Day occurring before the Cut-Off Date and on which the Escrow Agents
shall be entitled to withdraw Deposits under each of the applicable Deposit
Agreements sufficient to enable each applicable Pass Through Trustee to fund its
purchase of the related Equipment Notes). In addition the Company shall have the
further right, anything in this Section 2 to the contrary notwithstanding, to
accept delivery of an Aircraft under the applicable Aircraft Purchase Agreement
on the delivery date thereof by utilization of bridge financing of such Aircraft
and thereafter give the parties hereto a Closing Notice specifying a Closing
Date no later than the Cut-Off Date and otherwise complying with the provisions
of Section 2(b) hereof. All other terms and conditions of this
Note Purchase
Agreement shall apply to the financing of any such Aircraft on the re-scheduled
Closing Date therefor except the re-scheduled Closing Date shall be deemed the
Closing Date of such Aircraft for all purposes of this Section 2.
(g) Anything in this Section 2 to the contrary
notwithstanding, the Company shall have the right at any time to convert an
Owned Aircraft to a Leased Aircraft by entering into a sale/leaseback
transaction; PROVIDED, that, prior to, or concurrent with, such conversion, the
Company must (i) comply with the conditions set forth in the Leased Aircraft
Participation Agreement with respect to such aircraft, (ii) deliver an opinion
of counsel that holders of Certificates related to such Aircraft will not
recognize income, gain or loss for federal income tax purposes as a result of
such conversion and will be subject to federal income tax on the same amount and
in the same manner and at the same time as would have been the case if such
conversion had not occurred (other than such change in amount, manner and timing
of interest that results from any reoptimization of the Equipment Notes
permitted pursuant to Section 16 of the applicable Owned Aircraft Participation
Agreement in connection with such conversion) and that the Pass Through Trusts
will not be subject to federal income tax as a result of such conversion and
(iii) obtain Rating Agency Confirmation. If the delivery date for any Eligible
Aircraft under the Aircraft Purchase Agreements is delayed for more than 30 days
beyond the month scheduled for delivery or beyond the Cut-Off Date, the Company
may identify for delivery a substitute aircraft therefor meeting the following
conditions (together with the substitute aircraft referred to in the next
sentence, a "SUBSTITUTE AIRCRAFT"): (i) a Substitute Aircraft must be the same
model as the Eligible Aircraft for which delivery by Airbus or Boeing, as the
case may be, was delayed and must be delivered by Airbus or Boeing, as the case
may be, to the Company after the date of this Agreement, (ii) the Substitute
Aircraft must have been manufactured after the Issuance Date and (iii) the
Company shall be obligated to obtain Rating Agency Confirmation that the
replacement of such Eligible Aircraft by such Substitute Aircraft would not
result in withdrawal, suspension, or downgrading of the rating for any Class of
Certificates (other than the Class D Certificates) below the then current rating
for such Class of
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Certificates. Upon the satisfaction of the conditions set forth above with
respect to a Substitute Aircraft, the Eligible Aircraft to be replaced shall
cease to be subject to this Agreement and all rights and obligations of the
parties hereto concerning such Eligible Aircraft shall cease, and such
Substitute Aircraft shall become and thereafter be subject to the terms and
conditions of this Agreement to the same extent as such Eligible Aircraft.
(h) The Company shall have no liability for the failure
of the Pass Through Trustees to purchase Equipment Notes with respect to any
Aircraft or Substitute Aircraft, other than the Company's obligation, if any, to
pay the Deposit Make-Whole Amount pursuant to Section 5(a)(i) of this Agreement,
and the Company's obligation to make capital contributions as required by
Section 11(b).
(i) The parties agree that if, in connection with the
delivery of an Aircraft or a Substitute Aircraft or the conversion of an Owned
Aircraft to a Leased Aircraft, any Owner Participant who is to be a party to any
Lease Financing Agreements shall not be a "citizen of the United States" within
the meaning of 49 U.S.C. Section 40102 (a)(15), then the applicable Lease
Financing Agreements shall be modified, consistent with the Mandatory Document
Terms (as such Mandatory Document Terms may be modified in accordance with
Schedule V hereto), to require such Owner Participant to enter into a voting
trust, voting powers or similar arrangement satisfactory to the Company that (A)
enables such Aircraft or Substitute Aircraft to be registered in the United
States and (B) complies with the FAA regulations issued under the Act applicable
thereto.
(j) Anything herein to the contrary notwithstanding, the
Company shall not have the right, and shall not be entitled, at any time to
request the issuance of Equipment Notes of any series (other than the Series D
Equipment Notes) to any Pass Through Trustee in an aggregate principal amount in
excess of the amount of the Deposits then available for withdrawal by the Escrow
Agent under and in accordance with the provisions of the related Deposit
Agreement.
(k) The Company shall notify the Rating Agencies in
writing of any lease of an Owned Aircraft pursuant to the terms of an Owned
Aircraft Indenture promptly after entering into such lease.
SECTION 3. CONDITIONS PRECEDENT. The obligation of the Pass
Through Trustees to enter into, and to cause the Subordination Agent to enter
into, any Participation Agreement as directed pursuant to a Closing Notice and
to perform its obligations under such Participation Agreement is subject to
satisfaction of the following conditions:
(a) no Triggering Event shall have occurred;
(b) the Company shall have delivered a certificate to
each such Pass Through Trustee and each Liquidity Provider stating that (i) such
Participation Agreement and the other Financing Agreements to be entered into
pursuant to such Participation Agreement do not vary the Mandatory Economic
Terms and contain the Mandatory Document Terms (as such Mandatory Document Terms
may be modified in accordance with Schedule V hereto) and (ii) any substantive
modification of such Financing Agreements from the forms thereof attached to
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this Agreement do not materially and adversely affect the Liquidity Provider or
the Certificate Holders, and such certification shall be true and correct;
(c) if required by Section 2(c) and in place of the
statement in clause (ii) of Section 3(b) above, Rating Agency Confirmation from
each Rating Agency; and
(d) if the Aircraft relating to such Participation
Agreement is an Airbus A319-100 or Boeing 757-300 Aircraft, the Company shall
have either performed its obligations under Section 11(a) and (b) or Section
11(c) with respect to such Aircraft.
Anything herein to the contrary notwithstanding, the
obligation of each Pass Through Trustee to purchase Equipment Notes shall
terminate on the Cut-Off Date.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants on the date
hereof and on each Closing Date that:
i. the Company is duly incorporated, validly existing
and in good standing under the laws of the State of Minnesota and is a
"citizen of the United States" as defined in 49 U.S.C. Section 40102
(a)(15), and has the full corporate power, authority and legal right
under the laws of the State of Minnesota to execute and deliver this
Agreement and each Financing Agreement to which it will be a party and
to carry out the obligations of the Company under this Agreement and
each Financing Agreement to which it will be a party;
ii. the execution and delivery by the Company of this
Agreement and the performance by the Company of its obligations under
this Agreement have been duly authorized by the Company and will not
violate its Certificate of Incorporation or by-laws or the provisions
of any material indenture, mortgage, contract or other agreement to
which it is a party or by which it is bound;
iii. this Agreement constitutes the legal, valid and
binding obligation of the Company, enforceable against it in accordance
with its terms, except as the same may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general principles
of equity, whether considered in a proceeding at law or in equity; and
iv. the statements contained in any certificate delivered
pursuant to Section 3(b) are true and correct.
(b) State Street Bank and Trust Company represents and
warrants on the date hereof and on each Closing Date that:
i. State Street Bank and Trust Company is duly
incorporated, validly existing and in good standing under the laws of
the Commonwealth of Massachusetts and is a "citizen of the United
States" as defined in 49 U.S.C. Section 40102 (a)(15), and has the full
corporate power, authority and legal right under the laws of the
Commonwealth of
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Massachusetts and the United States pertaining to its banking, trust
and fiduciary powers to execute and deliver this Agreement and each
Financing Agreement to which it will be a party and to carry out the
obligations of State Street Bank and Trust Company, in its capacity as
Subordination Agent or Paying Agent, as the case may be, under this
Agreement and each Financing Agreement to which it will be a party;
ii. the execution and delivery by State Street Bank and
Trust Company, in its capacity as Subordination Agent or Paying Agent,
as the case may be, of this Agreement and the performance by State
Street Bank and Trust Company, in its capacity as Subordination Agent
or Paying Agent, as the case may be, of its obligations under this
Agreement have been duly authorized by State Street Bank and Trust
Company, in its capacity as Subordination Agent or Paying Agent, as the
case may be, and will not violate its articles of association or
by-laws or the provisions of any indenture, mortgage, contract or other
agreement to which it is a party or by which it is bound; and
iii. this Agreement constitutes the legal, valid and
binding obligation of State Street Bank and Trust Company in its
capacity as Subordination Agent or Paying Agent, as the case may be,
enforceable against it in accordance with its terms, except as the same
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally
and by general principles of equity, whether considered in a proceeding
at law or in equity.
(c) The Pass Through Trustee hereby confirms to each of
the other parties hereto that its representations and warranties set forth in
Section 7.14 of the Basic Pass Through Trust Agreement are true and correct as
of the date hereof.
(d) The Subordination Agent represents and warrants that:
i. the Subordination Agent is duly incorporated, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts, and has the full corporate power, authority and legal
right under the laws of the Commonwealth of Massachusetts and the
United States pertaining to its banking, trust and fiduciary powers to
execute and deliver this Agreement and each Financing Agreement to
which it is or will be a party and to perform its obligations under
this Agreement and each Financing Agreement to which it is or will be a
party;
ii. this Agreement has been duly authorized, executed and
delivered by the Subordination Agent; this Agreement constitutes the
legal, valid and binding obligations of the Subordination Agent
enforceable against it in accordance with its terms, except as the same
may be limited by applicable bankruptcy, insolvency reorganization,
moratorium or similar laws affecting the rights of creditors generally
and by general principles of equity, whether considered in a proceeding
at law or in equity;
iii. none of the execution, delivery and performance by
the Subordination Agent of this Agreement contravenes any law, rule or
regulation of the Commonwealth of Massachusetts or any United States
governmental authority or agency regulating the Subordination Agent's
banking, trust or fiduciary powers or any judgment or order
8
applicable to or binding on the Subordination Agent and do not
contravene the Subordination Agent's articles of association or by-laws
or result in any breach of, or constitute a default under, any
Agreement or instrument to which the Subordination Agent is a party or
by which it or any of its properties may be bound;
iv. neither the execution and delivery by the
Subordination Agent of this Agreement nor the consummation by the
Subordination Agent of any of the transactions contemplated hereby
requires the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action with respect to,
any Massachusetts governmental authority or agency or any federal
Governmental authority or agency regulating the Subordination Agent's
banking, trust or fiduciary powers;
v. there are no Taxes payable by the Subordination Agent
imposed by the Commonwealth of Massachusetts or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by the Subordination Agent of this
Agreement (other than franchise or other taxes based on or measured by
any fees or compensation received by the Subordination Agent for
services rendered in connection with the transactions contemplated by
the Intercreditor Agreement or any of the Liquidity Facilities), and
there are no Taxes payable by the Subordination Agent imposed by the
Commonwealth of Massachusetts or any political subdivision thereof in
connection with the acquisition, possession or ownership by the
Subordination Agent of any of the Equipment Notes (other than franchise
or other taxes based on or measured by any fees or compensation
received by the Subordination Agent for services rendered in connection
with the transactions contemplated by the Intercreditor Agreement or
any of the Liquidity Facilities); and
vi. there are no pending or threatened actions or
proceedings against the Subordination Agent before any court or
administrative agency which individually or in the aggregate, if
determined adversely to it, would materially adversely affect the
ability of the Subordination Agent to perform its obligations under
this Agreement.
(e) The Escrow Agent represents and warrants that:
i. the Escrow Agent is a national banking association
duly organized, validly existing and in good standing under the laws of
the United States and has the full corporate power, authority and legal
right under the laws of the United States pertaining to its banking,
trust and fiduciary powers to execute and deliver this Agreement, each
Deposit Agreement and each Escrow and Paying Agent Agreement
(collectively, the "ESCROW AGENT AGREEMENTS") and to carry out the
obligations of the Escrow Agent under each of the Escrow Agent
Agreements;
ii. the execution and delivery by the Escrow Agent of
each of the Escrow Agent Agreements and the performance by the Escrow
Agent of its obligations hereunder and thereunder have been duly
authorized by the Escrow Agent and will not violate its articles of
association or by-laws or the provisions of any indenture, mortgage,
contract or other agreement to which it is a party or by which it is
bound; and
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iii. each of the Escrow Agent Agreements constitutes the
legal, valid and binding obligations of the Escrow Agent enforceable
against it in accordance with its terms, except as the same may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally
and by general principles of equity, whether considered in a proceeding
at law or in equity.
(f) The Paying Agent represents and warrants that:
i. the Paying Agent is duly incorporated, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts and has the full corporate power, authority and legal
right under the laws of the United States pertaining to its banking,
trust and fiduciary powers to execute and deliver this Agreement and
each Escrow and Paying Agent Agreement (collectively, the "PAYING AGENT
AGREEMENTS") and to carry out the obligations of the Paying Agent under
each of the Paying Agent Agreements;
ii. the execution and delivery by the Paying Agent of
each of the Paying Agent Agreements and the performance by the Paying
Agent of its obligations hereunder and thereunder have been duly
authorized by the Paying Agent and will not violate its articles of
association or by-laws or the provisions of any indenture, mortgage,
contract or other agreement to which it is a party or by which it is
bound; and
iii. each of the Paying Agent Agreements constitutes the
legal, valid and binding obligations of the Paying Agent enforceable
against it in accordance with its terms, except as the same may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally
and by general principles of equity, whether considered in a proceeding
at law or in equity.
(g) State Street Bank and Trust Company of Connecticut,
National Association represents and warrants on the date hereof and on each
Closing Date that:
i. State Street Bank and Trust Company of Connecticut,
National Association is a national association validly existing and in
good standing with the Comptroller of the Currency under the laws of
the United States and is a "citizen of the United States" as defined in
49 U.S.C. Section 40102 (a)(15), and has the full power, authority and
legal right under the laws of the United States pertaining to its
banking, trust and fiduciary powers to execute and deliver this
Agreement and each Financing Agreement to which it will be a party and
to carry out the obligations of State Street Bank and Trust Company of
Connecticut, National Association, in its capacity as Pass Through
Trustee under this Agreement and each Financing Agreement to which it
will be a party;
ii. the execution and delivery by State Street Bank and
Trust Company of Connecticut, National Association, in its capacity as
Pass Through Trustee under this Agreement and the performance by State
Street Bank and Trust Company of Connecticut, National Association, in
its capacity as Pass Through Trustee, of its obligations under this
Agreement have been duly authorized by State Street Bank and Trust
Company of Connecticut, National Association, in its capacity as Pass
Through Trustee and will not
10
violate its articles of association or by-laws or the provisions of any
indenture, mortgage, contract or other agreement to which it is a party
or by which it is bound; and
iii. this Agreement constitutes the legal, valid and
binding obligation of State Street Bank and Trust Company of
Connecticut, National Association in its capacity as Pass Through
Trustee enforceable against it in accordance with its terms, except as
the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity, whether
considered in a proceeding at law or in equity.
SECTION 5. COVENANTS. (a) The Company covenants with each of
the other parties hereto that:
i. on the date that the Depositary is obligated to pay
the amount of the Final Withdrawal and on each date that the Depositary
is obligated to pay the amount of a Series D Non-Issuance Withdrawal,
in each case to the Paying Agent pursuant to a Deposit Agreement
relating to any Trust, the Company shall pay to the Pass Through
Trustee of such Trust no later than 1:00 p.m. (
New York time) an amount
equal to the Deposit Make-Whole Amount, if any, required to be paid in
respect of such Final Withdrawal amount or Series D Non-Issuance
Withdrawal amount, as the case may be;
ii. subject to Section 5(a)(iv) of this Agreement, the
Company shall at all times maintain its corporate existence and shall
not wind up, liquidate or dissolve or take any action, or fail to take
any action, that would have the effect of any of the foregoing;
iii. the Company shall at all times remain a U.S. Air
Carrier (as defined in the Financing Agreements) and shall at all times
be otherwise certificated and registered to the extent necessary to
entitle (i) in the case of Leased Aircraft, the Owner Trustee (and the
Indenture Trustee as assignee of the Owner Trustee's rights under each
Lease) to the rights afforded to lessors of aircraft equipment under
Section 1110 and (ii) in the case of Owned Aircraft, the Indenture
Trustee to the rights afforded to secured parties of aircraft equipment
under Section 1110;
iv. Section 8(y) of each Participation Agreement is
hereby incorporated by reference herein; and
v. the Company and each applicable Owner Trustee may
issue an additional series of Equipment Notes in addition to the Series
X-0, X-0, B and C Equipment Notes pursuant to any Indenture for a
Boeing 747-400 Aircraft, provided it shall have received written
confirmation from each Rating Agency that such issuance will not result
in a withdrawal or downgrade of the rating of any Class of Certificates
(other than the Class D Certificates). The Company will cause such
additional series of Equipment Notes to be subject to the provisions of
the Intercreditor Agreement that allow the "Controlling Party" (as
defined in the Intercreditor Agreement), during the continuance of an
"Indenture Default" (as defined in the Intercreditor Agreement), to
direct the Loan Trustee in taking action under the applicable
Indenture.
11
vi. If the Depositary's short-term rating shall at any
time fall below the Depositary Threshold Rating from either Moody's or
Standard & Poor's, the Company shall, within 60 days of such event
occurring, cause the Depositary to be replaced with a depositary bank
(a "REPLACEMENT DEPOSITARY") on the following terms and conditions:
(1) the Replacement Depositary must be one that
either (x) meets the Depositary Threshold Rating or (y) with
respect to which the Company shall have obtained written
confirmation from each Rating Agency that such Replacement
Depositary will not cause a downgrade or withdrawal of any
rating then in effect for any Class of Certificates by such
Rating Agency (without regard to any downgrading of any rating
of the Depositary being replaced) and, in either case, the
Company shall have obtained written confirmation from each
Rating Agency that such replacement will not cause a reduction
or withdrawal of any rating then in effect for any Class of
Certificates by such Rating Agency (without regard to any
downgrades of any rating of the Depositary being replaced);
(2) the Company shall cause the Escrow Agent and
the Replacement Depositary to enter into a Replacement Deposit
Agreement for each Class of Certificates (other than the Class
D Certificates) and shall cause the Replacement Depositary to
deliver to the Company and each Rating Agency legal opinions
and other closing documentation substantially similar to those
delivered by the Depositary being replaced in connection with
the execution and delivery of the Deposit Agreements being
replaced.
Subject to the foregoing, the Company shall instruct the Pass Through
Trustee, and the Pass Through Trustee agrees, to execute and deliver to
the Escrow Agent a duly completed Withdrawal Certificate (as defined in
the Escrow and Paying Agent Agreement with respect to each Class of
Certificates (other than the Class D Certificates)) together with a
Notice of Replacement Withdrawal (as defined in the applicable Paying
Agent and Escrow Agreement). Each of the parties hereto agrees, at the
Company's request, to enter into any amendments to this Agreement, any
Escrow and Paying Agent Agreement and any other Operative Documents as
may be necessary or desirable to give effect to the replacement of the
Depositary and the Replacement Deposit Agreements. Upon execution and
delivery of the Replacement Deposit Agreements, the Replacement
Depositary shall be deemed to be the Depositary with all of the rights
and obligations of the Depositary hereunder and under the other
Operative Documents and the Replacement Deposit Agreement shall be
deemed to be the Deposit Agreement hereunder and under the other
Operative Documents, except that the obligations of the replaced
Depositary under the last sentence of Section 2.2 of the Deposit
Agreement shall remain in full force and effect notwithstanding the
execution and delivery of the Replacement Deposit Agreement.
(b) State Street Bank and Trust Company, in its
individual capacity, covenants with each of the other parties to this Agreement
that it will, immediately upon obtaining knowledge of any facts that would cast
doubt upon its continuing status as a "citizen of the United States" as defined
in 49 U.S.C. Section 40102(a)(15) and promptly upon public disclosure of
negotiations in respect of any transaction which would or might adversely affect
such status,
12
notify in writing all parties hereto of all relevant matters in connection
therewith. Upon State Street Bank and Trust Company giving any such notice,
State Street Bank and Trust Company shall, subject to Section 9.01 of any
Indenture then entered into, resign as Trustee in respect of such Indenture.
SECTION 6. NOTICES. Unless otherwise specifically provided
herein, all notices required or permitted by the terms of this Agreement shall
be in English and in writing, and any such notice shall become effective upon
being delivered personally or, if promptly confirmed by mail, when dispatched by
facsimile or other written telecommunication, addressed to such party hereto at
its address or facsimile number set forth below the signature of such party at
the foot of this Agreement.
SECTION 7. EXPENSES. (a) The Company agrees to pay to the
Subordination Agent when due an amount or amounts equal to the fees payable to
the Liquidity Provider under Section 2.03 of each Liquidity Facility multiplied
by a fraction the numerator of which shall be the then outstanding aggregate
amount of the Deposits under the Deposit Agreements and the denominator of which
shall be the sum of (x) the then outstanding aggregate principal amount of the
Series A-1 Equipment Notes, Series A-2 Equipment Notes, Series B Equipment Notes
and Series C Equipment Notes issued under all of the Indentures and (y) the then
outstanding aggregate amount of the Deposits under the Deposit Agreements.
(b) So long as no Equipment Notes have been issued in respect
of any Aircraft, the Company agrees to pay (i) to the Subordination Agent when
due (A) the amount equal to interest on any Downgrade Advance (other than an
Applied Downgrade Advance) payable under Section 3.07 of each Liquidity Facility
minus Investment Earnings while such Downgrade Advance shall be outstanding, (B)
the amount equal to interest on any Non-Extension Advance (other than an Applied
Non-Extension Advance) payable under Section 3.07 of each Liquidity Facility
minus Investment Earnings while such Non-Extension Advance shall be outstanding,
(C) any other amounts owed to the Liquidity Provider by the Subordination Agent
as borrower under each Liquidity Facility (other than amounts due as repayment
of advances thereunder or as interest on such advances, except to the extent
payable pursuant to clause (A) or (B)), (ii) all compensation and reimbursement
of expenses, disbursements and advances payable by the Company under the Pass
Through Trust Agreements, (iii) all compensation and reimbursement of expenses
and disbursements payable to the Subordination Agent under the Intercreditor
Agreement except with respect to any income or franchise taxes incurred by the
Subordination Agent in connection with the transactions contemplated by the
Intercreditor Agreement and (iv) in the event the Company requests any amendment
to any Operative Document or to this
Note Purchase Agreement, all reasonable
fees and expenses (including, without limitation, fees and disbursements of
counsel) of the Escrow Agent and/or the Paying Agent in connection therewith.
For purposes of this Section 7(b), (i) the terms "Applied Downgrade Advance,"
"Applied Non-Extension Advance," "Downgrade Advance" and "Non-Extension Advance"
shall have the meanings specified in each Liquidity Facility and (ii) the term
"Investment Earnings" shall have the meaning specified in the Intercreditor
Agreement.
SECTION 8. FURTHER ASSURANCES. Each party hereto shall duly
execute, acknowledge and deliver, or shall cause to be executed, acknowledged
and delivered, all such
13
further agreements, instruments, certificates or documents, and shall do and
cause to be done such further acts and things, in any case, as any other party
hereto shall reasonably request in connection with its administration of, or to
carry out more effectually the purposes of, or to better assure and confirm unto
it the rights and benefits to be provided under, this Agreement.
SECTION 9. MISCELLANEOUS. (a) Provided that the transactions
contemplated hereby have been consummated, and except as otherwise provided for
herein, the representations, warranties and agreements herein of the Company,
the Subordination Agent, the Escrow Agent, the Paying Agent and the Pass Through
Trustee, and the Company's, the Subordination Agent's, the Escrow Agent's, the
Paying Agent's and the Pass Through Trustee's obligations under any and all
thereof, shall survive the expiration or other termination of this Agreement and
the other agreements referred to herein.
(b) This Agreement may be executed in any number of
counterparts (and each of the parties hereto shall not be required to execute
the same counterpart). Each counterpart of this Agreement, including a signature
page executed by each of the parties hereto, shall be an original counterpart of
this Agreement, but all of such counterparts together shall constitute one
instrument. Neither this Agreement nor any of the terms hereof may be
terminated, amended, supplemented, waived or modified orally, but only by an
instrument in writing signed by the party against which the enforcement of the
termination, amendment, supplement, waiver or modification is sought. The index
preceding this Agreement and the headings of the various Sections of this
Agreement are for convenience of reference only and shall not modify, define,
expand or limit any of the terms or provisions hereof. The terms of this
Agreement shall be binding upon, and shall inure to the benefit of, the Company
and its successors and permitted assigns, the Pass Through Trustee and its
successors as Pass Through Trustee (and any additional trustee appointed) under
any of the Pass Through Trust Agreements, the Escrow Agent and its successors as
Escrow Agent under the Escrow and Paying Agent Agreements, the Paying Agent and
its successors as Paying Agent under the Escrow and Paying Agent Agreement and
the Subordination Agent and its successors as Subordination Agent under the
Intercreditor Agreement.
(c) This Agreement is not intended to, and shall not
provide any person not a party hereto (other than the Underwriters and each of
the beneficiaries of Section 7 hereof) with any rights of any nature whatsoever
against any of the parties hereto, and no person not a party hereto (other than
the Underwriters and each of the beneficiaries of Section 7 hereof) shall have
any right, power or privilege in respect of, or have any benefit or interest
arising out of, this Agreement.
SECTION 10. INDEMNITY. The Company hereby agrees to indemnify
each Indemnitee against, and agrees to protect, defend, save and keep harmless
each thereof from any and all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, out-of-pocket costs, expenses, and
disbursements, of whatsoever kind and nature (collectively called "EXPENSES")
imposed on, incurred by or asserted against any Indemnitee, in any way relating
to or arising out of (A) any of the Financing Agreements or any lease or
sublease of any Aircraft or the enforcement of any of the terms thereof or any
amendment, modification or waiver in respect thereof, (B) the manufacture,
purchase, acceptance or rejection of the Airframe (as defined in the
Participation Agreement) or any Engine (as defined in the Participation
Agreement), (C) the
14
Aircraft (or any portion thereof or any Engine or engine affixed to the
Airframe) whether or not arising out of the finance, refinance, ownership,
delivery, nondelivery, storage, lease, sublease, sub-sublease, possession, use,
non-use, operation, maintenance, registration, reregistration, condition,
modification, alteration, replacement, repair, substitution, sale, return or
other disposition of the Aircraft (or any portion thereof or any Engine or
engine affixed to the Airframe) including, without limitation, latent or other
defects, whether or not discoverable, strict tort liability and any claim for
patent, trademark or copyright infringement, or (D) the offer, sale or delivery
of the Equipment Notes (the indemnity in this clause (D) to extend also to any
person who controls an Indemnitee within the meaning of Section 15 of the
Securities Act of 1933, as amended); PROVIDED that the foregoing indemnity as to
any Indemnitee shall not extend to any Expense resulting from or arising out of
or which would not have occurred but for one or more of the following: (A) any
representation or warranty by such Indemnitee (or any of its affiliates) in the
Financing Agreements or in connection therewith being incorrect in any material
respect, or (B) the failure by such Indemnitee (or any of its affiliates) to
perform or observe any agreement, covenant or condition in any of the Financing
Agreements applicable to it (except to the extent such failure was caused
directly by the failure of the Company to perform any obligation under a
Financing Agreement), or (C) the willful misconduct or the gross negligence of
such Indemnitee (or any of its affiliates) other than gross negligence imputed
to such Indemnitee (or any of its affiliates) solely by reason of its interest
in the Aircraft), or (D) any Tax, or (E) the authorization or giving or
withholding of any future amendments, supplements, waivers or consents with
respect to any of the Financing Agreements other than such as have been
consented to, approved, authorized or requested by the Company, or (F) subject
to the next succeeding paragraph, any loss of tax benefits or increase in tax
liability under any tax law whether or not the Company is required to indemnify
therefor pursuant to this Agreement, or (G) any Expense which is specified to be
for the account of an Indemnitee pursuant to any Financing Agreement without
express right of reimbursement under any Financing Agreement. The foregoing
indemnity shall not extend to any Expense to the extent that such Expense is not
caused by, or does not arise out of, an act, omission or event which occurs
prior to the payment of all payments required to be paid by the Company under
the Financing Agreements.
The Company further agrees that any payment or indemnity
pursuant to this Section 10 in respect of any Expenses shall be in an amount
which, after deduction of all Taxes required to be paid by such recipient with
respect to such payment or indemnity under the laws of any Federal, state or
local government or taxing authority in the United States, or under the laws of
any taxing authority or governmental subdivision of a foreign country, or any
territory or possession of the United States or any international authority,
shall be equal to the excess, if any, of (A) the amount of such Expense over (B)
the net reduction in Taxes required to be paid by such recipient resulting from
the accrual or payment of such Expense.
If, by reason of any Expense payment made to or for the
account of an Indemnitee by the Company pursuant to this Section 10, such
Indemnitee subsequently realizes a tax deduction or credit (including foreign
tax credit and any reduction in Taxes) not previously taken into account in
computing such payment, such Indemnitee shall promptly pay to the Company, but
only if the Company shall have made all payments then due and owing to such
Indemnitee under the Financing Agreements, an amount equal to the sum of (I) the
actual reduction in Taxes realized by such Indemnitee which is attributable to
such deduction or credit, and (II) the actual
15
reduction in Taxes realized by such Indemnitee as a result of any payment made
by such Indemnitee pursuant to this sentence.
If a claim is made against an Indemnitee involving one or more
Expenses and such Indemnitee has notice thereof, such Indemnitee shall promptly,
upon receiving such notice, give notice of such claim to the Company; PROVIDED
that the failure to provide such notice shall not release the Company from any
of its obligations to indemnify hereunder, and no payment by the Company to an
Indemnitee pursuant to this Section 10 shall be deemed to constitute a waiver or
release of any right or remedy which the Company may have against such
Indemnitee for any actual damages as a result of the failure by such Indemnitee
to give the Company such notice. The Company shall be entitled, at its sole cost
and expense, acting through counsel acceptable to the respective Indemnitee, (A)
so long as the Company has agreed in a writing acceptable to such Indemnitee
that the Company is liable to such Indemnitee for such Expense hereunder (unless
such Expense is covered by the proviso to the first paragraph of this Section
10), in any judicial or administrative proceeding that involves solely a claim
for one or more Expenses, to assume responsibility for and control thereof, (B)
so long as the Company has agreed in a writing acceptable to such Indemnitee
that the Company is liable to such Indemnitee for such Expense hereunder (unless
such Expense is covered by the proviso to the first paragraph of this Section
10), in any judicial or administrative proceeding involving a claim for one or
more Expenses and other claims related or unrelated to the transactions
contemplated by the Financing Agreements, to assume responsibility for and
control of such claim for Expenses to the extent that the same may be and is
severed from such other claims (and such Indemnitee shall use its best efforts
to obtain such severance), and (C) in any other case, to be consulted by such
Indemnitee with respect to judicial proceedings subject to the control of such
Indemnitee. Notwithstanding any of the foregoing to the contrary, the Company
shall not be entitled to assume responsibility for and control of any such
judicial or administrative proceedings (A) while an event of default shall have
occurred and be continuing under any of the Financing Agreements or (B) if such
proceeding could be in the good faith opinion of such Indemnitee entail any
material risk of criminal liability or present a conflict of interest making
separate representation necessary. The affected Indemnitee may participate at
its own expense and with its own counsel in any judicial proceeding controlled
by the Company pursuant to the preceding provisions.
The affected Indemnitee shall supply the Company with such
information reasonably requested by the Company as is necessary or advisable for
the Company to control or participate in any proceeding to the extent permitted
by this Section 10. Such Indemnitee shall not enter into a settlement or other
compromise with respect to any Expense without the prior written consent of the
Company, which consent shall not be unreasonably withheld or delayed, unless
such Indemnitee waives its right to be indemnified with respect to such Expense
under this Section 10.
The Company shall supply the affected Indemnitee with such
information reasonably requested by such Indemnitee as is necessary or advisable
for such Indemnitee to control or participate in any proceeding to the extent
permitted by this Section 10.
When the Company or the insurers under a policy of insurance
maintained by the Company undertakes the defense of an Indemnitee with respect
to an Expense, no additional legal fees or expenses of such Indemnitee in
connection with the defense of such Indemnitee
16
shall be indemnified hereunder unless such fees or expenses were incurred at the
written request of the Company or such insurers, provided that no such defense
shall be compromised or settled on a basis that admits any gross negligence or
willful misconduct on the part of such Indemnitee without such Indemnitee's
prior consent.
In the event that the Company shall have paid an amount to an
Indemnitee pursuant to this Section 10, and such Indemnitee subsequently shall
be reimbursed in respect of such indemnified amount from any other Person, such
Indemnitee shall promptly pay to the Company an amount equal to the amount of
such reimbursement (but in no event more than such payment from the Company)
plus any net tax benefit (or minus any net tax detriment) realized by such
Indemnitee as a result of any reimbursement received and payment made by such
Indemnitee pursuant to this sentence, PROVIDED that (i) no event of default has
occurred and is continuing under any of the Financing Agreements and (ii) such
Indemnitee shall have no obligation to reimburse the Company if the Company has
not paid such Indemnitee all amounts required pursuant to this Section 10 and
any other amounts then due to such Indemnitee from the Company under any of the
Financing Agreements.
The Company's obligations under the indemnities provided for
in this Agreement shall be those of a primary obligor, whether or not the Person
indemnified shall also be indemnified with respect to the same matter under the
terms of any other document or instrument, and the Person seeking
indemnification from the Company pursuant to this Section 10 may proceed
directly against the Company without first seeking to enforce any other right of
indemnification.
SECTION 11. SERIES D EQUIPMENT NOTES. (a) On or prior to the
first Closing Date for an Airbus A319-100 or Boeing 757-300 Aircraft with
respect to which Series D Equipment Notes are to be issued, the Company shall:
i. form a Delaware business trust by entering into a
trust agreement substantially in the form attached hereto as Exhibit E
(the "DELAWARE TRUST AGREEMENT", the trust formed by such agreement
being the "DELAWARE TRUST");
ii. form the Class D Trust by entering into the Class D
Trust Supplement;
iii. cause the Class D Pass Through Trustee to issue and
sell the Class D Certificates to the Delaware Trust in a face amount of
up to $50,000,000 and with an interest rate to be determined prior to
such issuance;
iv. deliver to the Pass Through Trustees and the
Underwriters opinions from each of the following parties (each such
opinion to be in form and substance satisfactory to the Class D Pass
Through Trustee and addressed to the Underwriters, the Class D Pass
Through Trustee, each other Pass Through Trustee and each Rating
Agency): (A) Xxxxxxxx, Xxxxxx & Finger, counsel for the Delaware Trust,
substantially to the effect set forth in Exhibit F-1 hereto, (B)
Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Company and the Guarantor,
substantially to the effect set forth in Exhibit F-2 hereto, (C) the
Vice President, Law & Secretary of the Company and the Guarantor,
substantially to the effect
17
set forth in Exhibit F-3 hereto, and (D) Xxxxxxx Xxxx LLP, counsel to
the Class D Pass Through Trustee, substantially to the effect set forth
in Exhibit F-4 hereto; and
v. cause the Intercreditor Agreement to be amended by
written agreement of the parties thereto to add the Class D Pass
Through Trustee as a party to the Intercreditor Agreement, to revise
the definition of Stated Interest Rate to reflect the issuance of the
Class D Certificates, and to make any other changes in the
Intercreditor Agreement in connection with the issuance of the Class D
Certificates as shall not materially adversely affect any Trustee.
(b) On or prior to each Closing Date for an Airbus
A319-100 Aircraft or a Boeing 757-300 Aircraft on which Series D Equipment Notes
under the Indenture relating to such Aircraft are to be issued and purchased by
the Class D Pass Through Trustee pursuant to the related Participation
Agreement, the Company shall:
i. notify or cause to be notified the Class D Pass
Through Trustee of the principal amount of Series D Equipment Notes to
be so purchased; and
ii. make a capital contribution to the Delaware Trust in
an amount sufficient to pay the purchase price of such Series D
Equipment Notes and cause the Delaware Trust to transfer such amount to
the Class D Pass Through Trustee for purchase of such Series D
Equipment Notes, as provided in Section 2.11(b) of the Delaware Trust
Agreement.
(c) If on any Closing Date for any Airbus A319-100
Aircraft or Boeing 757-300 Aircraft, no Series D Equipment Notes with respect to
such Aircraft are to be issued or, after the issuance of such Series D Equipment
Notes, the loan to value ratio for such Series D Equipment Notes shall be less
than the amount specified for such Aircraft in the Mandatory Economic Terms
(provided that in no event will the aggregate amount of Series D Equipment Notes
issued pursuant to this Section 11 be required to exceed $50,000,000), the
Company agrees that it shall (i) state such fact in the related Closing Notice
and provide in such Closing Notice a direction to each Pass Through Trustee
(other than the Class D Pass Through Trustee) to instruct the Escrow Agent to
deliver notice of a Series D Non-Issuance Withdrawal to the Depositary for the
Class A-1 Trust, Class A-2 Trust, Class B Trust and Class C Trust, and
specifying each Deposit Account or Accounts from which each such withdrawal is
to be made, the portion of the amount so withdrawn from each Deposit Account
(together with accrued interest thereon) that is to be applied by the Paying
Agent for distribution to the Receiptholders of the related Class pursuant to
the Escrow Agreement for such Class, the portion of the amount so withdrawn from
each Deposit Account that is to be redeposited with the Depositary pursuant to
the respective Deposit Agreement, and the date for payment by the Depositary of
each such withdrawal amount, which shall also be the date of distribution by the
Paying Agent to the Receiptholders pursuant to the Escrow Agreement (which date
shall be the 15th day after the date of such Notices of Series D Non-Issuance
Withdrawal) and (ii) deliver to each Pass Through Trustee and the Subordination
Agent copies of written notice from each Rating Agency that upon distribution to
the Certificate Holders of the Class A-1 Certificates, Class A-2 Certificates,
Class B Certificates and Class C Certificates from the related Deposit Accounts
of the amounts specified in the preceding clause (i), the ratings of the Class
X-0, Xxxxx X-0, Class B and Class C
18
will not be withdrawn, suspended or downgraded due to failure to issue Series D
Equipment Notes in the amount specified in the first sentence of this paragraph
(c) in respect of such Aircraft. The Pass Through Trustees agree that upon
receipt of the certificate and written notices specified in the preceding
sentence, they will promptly instruct the Escrow Agent to deliver notice of a
Series D Non-Issuance Withdrawal to the Depositary for each Trust (other than
the Class D Trust).
(d) The parties hereto agree that upon execution of the
Class D Trust Supplement, the Class D Pass Through Trustee shall become a party
to this Agreement.
SECTION 12. TERMINATION. This Agreement shall terminate on the
Delivery Period Termination Date or, if earlier, the date on which Equipment
Notes issued with respect to all of the Aircraft have been purchased by the Pass
Through Trustees in accordance with this Agreement; PROVIDED, that, the
provisions of Sections 7, 8, 9 and the second paragraph of Section 10 hereof
shall survive any termination of this Agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
19
IN WITNESS WHEREOF, the parties hereto have caused this
Note
Purchase Agreement to be duly executed by their respective officers thereunto
duly authorized as of the day and year first above written.
NORTHWEST AIRLINES, INC.
By:_____________________________________
Name:
Title:
Address:
Attention:
Facsimile:
20
XXXXX FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION, as Escrow Agent
By:_____________________________________
Name
Title:
Address:
Attention:
Facsimile:
00
XXXXX XXXXXX XXXX AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not
in its individual capacity, except as
otherwise provided herein, but solely
as Pass Through Trustee
By:_____________________________________
Name:
Title:
Address:
Attention:
Facsimile:
STATE STREET BANK AND TRUST COMPANY, not
in its individual capacity, except as
otherwise provided herein, but solely as
Subordination Agent
By:_____________________________________
Name
Title:
Address:
Attention:
Facsimile:
STATE STREET BANK AND TRUST COMPANY, as
Paying Agent
By:_____________________________________
Name
Title:
Address:
Attention:
Facsimile:
22
SCHEDULE I TO
NOTE PURCHASE AGREEMENT
ELIGIBLE AIRCRAFT AND SCHEDULED DELIVERY MONTHS
--------------------------------------------------------------------------------------------------------------
Expected
Aircraft Type Expected Registration Manufacturer's Scheduled
Number Serial Number Delivery Months
--------------------------------------------------------------------------------------------------------------
Airbus A319-100 N338NB 1743 May 2002
--------------------------------------------------------------------------------------------------------------
Airbus X000-000 X000XX 1766 June 2002
--------------------------------------------------------------------------------------------------------------
Airbus A319-100 N343NB TBD July 2002
--------------------------------------------------------------------------------------------------------------
Airbus A319-100 N344NB TBD August 2002
--------------------------------------------------------------------------------------------------------------
Airbus A319-100 N345NB TBD August 2002
--------------------------------------------------------------------------------------------------------------
Airbus A319-100 N346NB TBD September 2002
--------------------------------------------------------------------------------------------------------------
Airbus A319-100 N347NB TBD September 2002
--------------------------------------------------------------------------------------------------------------
Airbus A319-100 N348NB TBD September 2002
--------------------------------------------------------------------------------------------------------------
Airbus A319-100 N349NB TBD October 2002
--------------------------------------------------------------------------------------------------------------
Airbus A319-100 N350NB TBD October 2002
--------------------------------------------------------------------------------------------------------------
Airbus A319-100 N351NB TBD October 2002
--------------------------------------------------------------------------------------------------------------
Airbus A319-100 N352NB TBD November 2002
--------------------------------------------------------------------------------------------------------------
Airbus A319-100 N353NB TBD November 2002
--------------------------------------------------------------------------------------------------------------
Airbus A319-100 N354NB TBD December 2002
--------------------------------------------------------------------------------------------------------------
Airbus A319-100 N355NB TBD December 2002
--------------------------------------------------------------------------------------------------------------
Boeing 757-300 N580NW TBD July 2002
--------------------------------------------------------------------------------------------------------------
Boeing 757-300 N581NW TBD August 2002
--------------------------------------------------------------------------------------------------------------
Boeing 757-300 N582NW TBD September 2002
--------------------------------------------------------------------------------------------------------------
Boeing 757-300 N583NW TBD October 2002
--------------------------------------------------------------------------------------------------------------
Boeing 757-300 N584NW TBD November 2002
--------------------------------------------------------------------------------------------------------------
Boeing 757-300 N585NW TBD December 2002
--------------------------------------------------------------------------------------------------------------
Boeing 747-400 N675NW TBD February 2002
--------------------------------------------------------------------------------------------------------------
Boeing 747-400 N676NW TBD April 2002
--------------------------------------------------------------------------------------------------------------
SCHEDULE II TO
NOTE PURCHASE AGREEMENT
TRUST SUPPLEMENTS
Trust Supplement, dated as of the Issuance Date, among the
Company, NWA Corp. and the Pass Through Trustee in respect of Northwest Airlines
Pass Through Trust, Series 2001-1A-1.
Trust Supplement, dated as of the Issuance Date, among the
Company, NWA Corp. and the Pass Through Trustee in respect of Northwest Airlines
Pass Through Trust, Series 2001-1A-2.
Trust Supplement, dated as of the Issuance Date, among the
Company, NWA Corp. and the Pass Through Trustee in respect of Northwest Airlines
Pass Through Trust, Series 2001-1B.
Trust Supplement, dated as of the Issuance Date, among the
Company, NWA Corp. and the Pass Through Trustee in respect of Northwest Airlines
Pass Through Trust, Series 2001-1C.
SCHEDULE III TO
NOTE PURCHASE AGREEMENT
DEPOSIT AGREEMENTS
Deposit Agreement (Class A-1), dated as of the Issuance Date,
between the Depositary and the Escrow Agent.
Deposit Agreement (Class A-2), dated as of the Issuance Date,
between the Depositary and the Escrow Agent.
Deposit Agreement (Class B), dated as of the Issuance Date,
between the Depositary and the Escrow Agent.
Deposit Agreement (Class C), dated as of the Issuance Date,
between the Depositary and the Escrow Agent.
SCHEDULE IV TO
NOTE PURCHASE AGREEMENT
ESCROW AND PAYING AGENT AGREEMENTS
Escrow and Paying Agent Agreement (Class A-1), dated as of the
Issuance Date, among the Escrow Agent, the Underwriters, the Pass Through
Trustee and the Paying Agent.
Escrow and Paying Agent Agreement (Class A-2), dated as of the
Issuance Date, among the Escrow Agent, the Underwriters, the Pass Through
Trustee and the Paying Agent.
Escrow and Paying Agent Agreement (Class B), dated as of the
Issuance Date, among the Escrow Agent, the Underwriters, the Pass Through
Trustee and the Paying Agent.
Escrow and Paying Agent Agreement (Class C), dated as of the
Issuance Date, among the Escrow Agent, the Underwriters, the Pass Through
Trustee and the Paying Agent.
SCHEDULE V TO
NOTE PURCHASE AGREEMENT
MANDATORY DOCUMENT TERMS
The terms "Trust Indenture Form," "Lease Form" and
"Participation Agreement Form" shall have the respective meanings specified in
Schedule VI to the Note Purchase Agreement.
1. May not modify in any material adverse respect as
regards the interests of the Note Holders, the Subordination Agent, the
Liquidity Provider or the Indenture Trustee, the Granting Clause of the Trust
Indenture Form so as to deprive the Note Holders of a first priority security
interest in and mortgage lien on the Aircraft and, in the case of a Leased
Aircraft Indenture, the Lease or to eliminate any of the obligations intended to
be secured thereby or otherwise modify in any material adverse respect as
regards the interests of the Note Holders, the Subordination Agent, the
Liquidity Provider or the Indenture Trustee the provisions of Article II or III
or Sections 4.02, 4.03, 4.04, 5.02, 5.06, 9.01 or the first sentence of Section
10.11 of the Leased Aircraft Indenture Form for the Leased Aircraft or Article
II or III or Sections 4.01, 4.02, 5.02, 7.06(a), 7.06(b), 10.01, or the first
sentence of Section 11.11 of the Owned Aircraft Indenture Form for the Owned
Aircraft.
2. May not modify in any material adverse respect as
regards the interests of the Note Holders, the Subordination Agent, the
Liquidity Provider or the Indenture Trustee the provisions of Section 3(d)(v),
Section 3(f), Section 7(a)(I)(i), clause (6) of the final paragraph of Section
10(a), Section 16, Section 18, the first and third sentences of Section 20 or
the penultimate sentence of Section 24 of the Lease Form or otherwise modify the
terms of the Lease Form so as to deprive the Indenture Trustee of rights
expressly granted to the "Indenture Trustee" therein.
3. May not modify in any material adverse respect as
regards the interests of the Note Holders, the Subordination Agent, the
Liquidity Provider or the Indenture Trustee the provisions of Section
4(a)(ix)(1), 4(a)(ix)(2), 4(a)(ix)(3), 4(a)(xxiii) to the extent such section
requires special counsel for the Lessee to deliver an opinion relating to
Section 1110 of the Bankruptcy Code, Sections 8(q), 8(cc), 11(b), 12 or the
penultimate sentence of Section 15(c), 15(e) or the provisions of Sections
4(a)(xi), 4(a)(xii), 4(a)(xiii), 4(a)(xiv), 4(a)(xv) and 4(a)(xvi) of the
Participation Agreement Form so as to eliminate the requirement to deliver to
the Loan Participant or the Indenture Trustee, as the case may be, the legal
opinions to be provided to such Persons thereunder (recognizing that the lawyers
rendering such opinions may be changed) or the provisions of Section 8(f)(ii)(C)
or otherwise modify the terms of the Participation Agreement Form to deprive the
Subordination Agent, the Liquidity Provider or the Indenture Trustee of any
indemnity or right of reimbursement in its favor for Expenses or Taxes.
4. May not modify, in any material adverse respect as
regards the interests of the Note Holders, the Subordination Agent, the
Liquidity Provider or the Indenture Trustee, the definition of "Make-Whole
Amount" in the Leased Aircraft Indenture Form (with respect to Equipment Notes
relating to Leased Aircraft) or in Annex A to the Owned Aircraft Indenture Form
(with respect to Equipment Notes relating to Owned Aircraft).
Notwithstanding the foregoing, any such Mandatory Document
Term may be modified to correct or supplement any such provision which may be
defective or to cure any ambiguity or correct any mistake, provided, however,
that any such action shall not materially adversely affect the interests of the
Note Holders, the Subordination Agent, the Liquidity Provider, the Indenture
Trustee or the Certificate Holders.
SCHEDULE VI TO
NOTE PURCHASE AGREEMENT
MANDATORY ECONOMIC TERMS
EQUIPMENT NOTES
Obligor: Northwest Airlines, Inc. or an Owner Trust
o The maximum principal amount of all the Equipment Notes issued with respect
to an Eligible Aircraft shall not exceed the maximum principal amount of
Equipment Notes indicated for each such Eligible Aircraft as set forth in
the following table:
AIRCRAFT TYPE(1) EXPECTED MAXIMUM PRINCIPAL
REGISTRATION AMOUNT OF SERIES
NUMBER X-0, X-0, B AND C
------ EQUIPMENT NOTES(2)
------------------
Airbus A319-100 N338NB $28,275,750
Airbus A319-100 N340NB $28,359,000
Airbus A319-100 N343NB $28,462,500
Airbus A319-100 N344NB $28,548,000
Airbus A319-100 N345NB $28,548,000
Airbus A319-100 N346NB $28,633,500
Airbus A319-100 N347NB $28,633,500
Airbus A319-100 N348NB $28,633,500
Airbus A319-100 N349NB $28,719,000
Airbus A319-100 N350NB $28,719,000
Airbus A319-100 N351NB $28,719,000
Airbus A319-100 N352NB $28,806,750
Airbus A319-100 N353NB $28,806,750
Airbus A319-100 N354NB $28,892,250
Airbus A319-100 N355NB $28,892,250
Boeing 757-300 N580NW $43,492,500
Boeing 757-300 N581NW $43,625,250
Boeing 757-300 N582NW $43,755,750
Boeing 757-300 N583NW $43,886,250
Boeing 757-300 N584NW $44,023,500
Boeing 757-300 N585NW $44,156,250
Boeing 747-400 N675NW $105,782,550
Boeing 747-400 N676NW $106,445,600
-----------
(1) Includes all 23 Eligible Aircraft from which Northwest will
choose the 14 Aircraft to be financed pursuant to the terms of
the Note Purchase Agreement.
(2) The actual principal amount issued for any Aircraft may be
less than the amounts set forth in this table depending upon
the circumstances of the financing of such Aircraft. The
aggregate principal amount of all of the Equipment Notes of
each
series will not exceed the aggregate face amount of
Certificates of the corresponding Class.
o The loan to aircraft value ratio with respect to each Aircraft (computed on
the basis of the Appraised Base Value of such Aircraft and the Depreciation
Assumption) at the time of issuance of the related Equipment Notes and on
any Regular Distribution Date thereafter shall not exceed the amounts set
forth in the following table:
AIRCRAFT TYPE(1) EXPECTED SERIES A-1 SERIES A-2 SERIES B SERIES C SERIES D
--------------- REGISTRATION EQUIPMENT EQUIPMENT EQUIPMENT EQUIPMENT EQUIPMENT
NUMBER NOTES NOTES NOTES NOTES NOTES
------ ----- ----- ----- ----- -----
Airbus A319-100 N338NB 44.0% 44.0% 60.0% 67.5% 76.5%
Airbus A319-100 N340NB 44.0% 44.0% 60.0% 67.5% 76.5%
Airbus A319-100 N343NB 44.0% 44.0% 60.0% 67.5% 76.5%
Airbus A319-100 N344NB 44.0% 44.0% 60.0% 67.5% 76.5%
Airbus A319-100 N345NB 44.0% 44.0% 60.0% 67.5% 76.5%
Airbus A319-100 N346NB 44.0% 44.0% 60.0% 67.5% 76.5%
Airbus A319-100 N347NB 44.0% 44.0% 60.0% 67.5% 76.5%
Airbus A319-100 N348NB 44.0% 44.0% 60.0% 67.5% 76.5%
Airbus A319-100 N349NB 44.0% 44.0% 60.0% 67.5% 76.5%
Airbus A319-100 N350NB 44.0% 44.0% 60.0% 67.5% 76.5%
Airbus A319-100 N351NB 44.0% 44.0% 60.0% 67.5% 76.5%
Airbus A319-100 N352NB 44.0% 44.0% 60.0% 67.5% 76.5%
Airbus A319-100 N353NB 44.0% 44.0% 60.0% 67.5% 76.5%
Airbus A319-100 N354NB 44.0% 44.0% 60.0% 67.5% 76.5%
Airbus A319-100 N355NB 44.0% 44.0% 60.0% 67.5% 76.5%
Boeing 757-300 N580NW 43.0% 43.0% 59.0% 67.5% 76.5%
Boeing 757-300 N581NW 43.0% 43.0% 59.0% 67.5% 76.5%
Boeing 757-300 N582NW 43.0% 43.0% 59.0% 67.5% 76.5%
Boeing 757-300 N583NW 43.0% 43.0% 59.0% 67.5% 76.5%
Boeing 757-300 N584NW 43.0% 43.0% 59.0% 67.5% 76.5%
Boeing 757-300 N585NW 43.0% 43.0% 59.0% 67.5% 76.5%
Boeing 747-400 N675NW 37.5% 37.5% 51.7% 66.5% NA
Boeing 747-400 N676NW 37.4% 37.4% 51.7% 66.4% NA
-----------
(1) Includes all 23 Eligible Aircraft from which Northwest will
choose the 14 Aircraft to be financed pursuant to the Note
Purchase Agreement.
o As of each Regular Distribution Date after the Delivery Period Termination
Date, the LTV for each Class of Certificates (computed as of any such date
on the basis of the Appraised Base Value of the Aircraft that have been
delivered and the Depreciation Assumption) will not exceed 42.0% for the
Class A-1 Certificates, 42.0% for the Class A-2 Certificates, 54.0% for the
Class B Certificates, 66.0% for the Class C Certificates and 75.0% for the
Class D Certificates.
o The initial average life of the Series A-1 Equipment Notes, Series B
Equipment Notes, the Series C Equipment Notes and the Series D Equipment
Notes on any Aircraft will not be more
than 15.0 years, 13.0 years, 6.0 years, and 9.0 years, respectively, in
each case from the Issuance Date.
o As of the first Regular Distribution Date following the Delivery Period
Termination Date the average life of each Class of Certificates (computed
without regard to the acceleration of any Equipment Notes and after giving
effect to any special distribution on the Certificates thereafter required
in respect of unused Deposits) shall be not less than the minimum nor more
than the maximum years from the Issuance Date set forth in the following
table:
CLASS A-1 CLASS A-2 CLASS B CLASS C CLASS D
CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES
------------ ------------ ------------ ------------ ------------
Minimum........................... 11.6 years 9.8 years 8.6 years 4.8 years 7.5 years
Maximum........................... 12.0 years 9.8 years 9.0 years 5.0 years 8.3 years
o The final maturity date of the Series A-1 Equipment Notes, the Series B
Equipment Notes, the Series C Equipment Notes and the Series D Equipment
Notes will not extend beyond April 1, 2022, April 1, 2017, April 1, 2010
and October 1, 2013, respectively.
o The final maturity date of the Series A-2 Equipment Notes shall be April 1,
2011, and there shall be no scheduled amortization of such Equipment Notes.
o At the earlier of the date on which all Aircraft have been delivered and
all Equipment Notes issued and the Delivery Period Termination Date, the
aggregate principal amount of each Series of Equipment Notes (other than
the Series D Equipment Notes) shall equal the original aggregate face
amount of the related Class of Certificates without giving effect to any
principal payments on such Equipment Notes but after giving effect to any
reductions to the Pool Balance for such Class of Certificates from Deposits
not used to purchase Equipment Notes on or before such date.
o The interest rate applicable to each Series of Equipment Notes must be
equal to the rate applicable to the Certificates issued by the
corresponding Trust.
o The payment dates for the Equipment Notes and basic rent under the Leases
must be April 1 and October 1, provided that at Northwest's election, basic
rent may also be paid at the commencement of a Lease.
o Basic rent (and supplemental rent), stipulated loss values and termination
values under the Leases must be sufficient to pay amounts due with respect
to the related Equipment Notes.
o The amounts payable under the all-risk aircraft hull insurance maintained
with respect to each Aircraft must be sufficient to pay the applicable
stipulated loss value or, in the case of Owned Aircraft, unpaid principal
amount of the related Equipment Notes, subject to certain rights of
self-insurance.
o (a) The past due rate in the Indentures and the Leases, (b) the Make-Whole
Premium payable under the Indentures, (c) the provisions relating to the
redemption and purchase of Equipment Notes in the Indentures, (d) the
minimum liability insurance amount on Aircraft in the Leases and (e) the
indemnification of the Loan Trustees, Subordination Agent, Liquidity
Provider, Trustees, Escrow Agents and registered holders of the Equipment
Notes (in such capacity, the
"NOTE HOLDERS") with respect to certain taxes and expenses, in each case
must be no less favorable to the Loan Trustees, Subordination Agent, the
Liquidity Provider, the Trustees, the Escrow Agents and the Note Holders
than as set forth in the form of Participation Agreements (the
"PARTICIPATION AGREEMENT FORM") and Leases (the "LEASE FORM") and the form
of Leased Aircraft Indentures and Owned Aircraft Indentures (the "TRUST
INDENTURE FORM") (collectively, the "AIRCRAFT OPERATIVE AGREEMENTS")
attached as exhibits to the Note Purchase Agreement.
Past Due Rate: Debt Rate plus 2% per annum.
Payment Dates: April 1 and October 1, commencing with the first such date after
the applicable Equipment Notes are issued.
Lease Term: The Basic Lease Term shall expire by its terms on or after final
maturity date of the related Series A-1, Series A-2, Series B, Series C
Equipment Notes or Series D Equipment Note, as the case may be.
SCHEDULE VII TO
NOTE PURCHASE AGREEMENT
AGGREGATE AMORTIZATION SCHEDULE
2001-1A-1 TRUST 2001-1A-2 TRUST 2001-1B TRUST 2001-1D TRUST
EQUIPMENT NOTES EQUIPMENT NOTES EQUIPMENT NOTES 2001-1C TRUST EQUIPMENT NOTES
SCHEDULED SCHEDULED SCHEDULED EQUIPMENT NOTES SCHEDULED
PAYMENTS OF PAYMENTS OF PAYMENTS OF SCHEDULED PAYMENTS PAYMENTS OF
PRINCIPAL PRINCIPAL PRINCIPAL OF PRINCIPAL PRINCIPAL
DATE CLASS A-1 CLASS A-2 CLASS B CLASS C CLASS D
-------------------- ---------------- ---------------- ---------------- ---------------- ----------------
April 1, 2003 $ 10,112,983.20 $ 0.00 $ 4,181,285.69 $ 9,479,217.43 $ 1,377,282.30
October 1, 2003 6,331,821.02 0.00 7,303,132.43 1,799,344.69 1,439,260.01
April 1, 2004 6,229,050.77 0.00 5,017,015.94 10,976,718.24 1,504,026.71
October 1, 2004 5,318,729.67 0.00 6,132,485.85 6,136,037.47 1,571,707.91
April 1, 2005 6,309,498.41 0.00 3,675,307.67 20,924,500.82 1,642,434.76
October 1, 2005 5,480,824.30 0.00 6,132,485.85 0.00 1,716,344.33
April 1, 2006 6,296,626.80 0.00 4,356,859.67 13,490,877.22 1,793,579.82
October 1, 2006 5,454,889.12 0.00 6,132,485.85 0.00 1,874,290.92
April 1, 2007 6,298,686.23 0.00 5,038,411.67 13,455,811.70 1,958,634.01
October 1, 2007 5,459,038.79 0.00 6,132,485.85 0.00 2,046,772.54
April 1, 2008 6,298,356.74 0.00 3,675,307.67 15,517,428.81 2,138,877.30
October 1, 2008 5,458,374.84 0.00 6,132,485.85 0.00 2,235,126.78
April 1, 2009 6,298,409.48 0.00 681,552.00 8,113,209.34 2,335,707.49
October 1, 2009 5,458,481.07 0.00 0.00 0.00 2,440,814.32
April 1, 2010 6,298,401.00 0.00 681,552.00 6,926,854.29 2,550,650.97
October 1, 2010 5,458,464.04 0.00 0.00 0.00 2,665,430.26
April 1, 2011 2,051,686.93 156,613,000.00 685,824.00 0.00 2,785,374.62
October 1, 2011 506,545.68 0.00 0.00 0.00 2,910,716.48
April 1, 2012 3,159,208.93 0.00 2,048,928.00 0.00 3,041,698.72
October 1, 2012 506,545.68 0.00 0.00 0.00 3,178,575.16
April 1, 2013 3,840,760.93 0.00 1,367,376.00 0.00 3,321,611.05
October 1, 2013 5,312,591.65 0.00 8,554,357.03 0.00 3,471,083.54
April 1, 2014 4,224,133.93 0.00 8,679,253.00 0.00 0.00
October 1, 2014 506,545.68 0.00 0.00 0.00 0.00
April 1, 2015 2,453,335.29 0.00 2,156,574.64 0.00 0.00
October 1, 2015 506,545.68 0.00 0.00 0.00 0.00
April 1, 2016 2,437,462.93 0.00 2,172,447.00 0.00 0.00
October 1, 2016 506,545.68 0.00 0.00 0.00 0.00
April 1, 2017 1,442,065.60 0.00 25,562,386.33 0.00 0.00
October 1, 2017 506,545.68 0.00 0.00 0.00 0.00
April 1, 2018 5,037,214.93 0.00 0.00 0.00 0.00
October 1, 2018 506,545.68 0.00 0.00 0.00 0.00
April 1, 2019 5,037,214.93 0.00 0.00 0.00 0.00
October 1, 2019 506,545.68 0.00 0.00 0.00 0.00
April 1, 2020 5,037,214.93 0.00 0.00 0.00 0.00
October 1, 2020 506,545.68 0.00 0.00 0.00 0.00
April 1, 2021 5,037,214.93 0.00 0.00 0.00 0.00
October 1, 2021 506,545.68 0.00 0.00 0.00 0.00
April 1, 2022 52,413,801.79 0.00 0.00 0.00 0.00
Total 201,112,000.00 156,613,000 116,500,000.00 106,820,000.00 50,000,000.00
ANNEX A TO
NOTE PURCHASE AGREEMENT
DEFINITIONS
"Act" means 49 U.S.C. xx.xx. 40101-46507.
"Affiliate" means, with respect to any person, any other
person directly or indirectly controlling, controlled by or under common control
with such person. For purposes of this definition, "control" means the power,
directly or indirectly, to direct or cause the direction of the management and
policies of such person, whether through the ownership of voting securities or
by contract or otherwise and "controlling," "controlled by" and "under common
control with" have correlative meanings.
"Airbus" means AVSA, S.A.R.L.
"Aircraft" has the meaning set forth in the recitals to the
Note Purchase Agreement.
"Aircraft Purchase Agreement" means in the case of the Airbus
A319-100 aircraft, the A319 Purchase Agreement dated as of September 19, 1997
between Airbus and the Company, in the case of the Boeing 757-300 aircraft, the
Purchase Agreement No. 2159 between Boeing and the Company dated January 16,
2001, and in the case of the Boeing 747-400 aircraft, the Purchase Agreement No.
1630 between Boeing and the Company dated December 1, 1989 (including, in each
case, all exhibits thereto, together with all letter agreements entered into
that by their terms constitute part of any such Purchase Agreement); and
"Aircraft Purchase Agreements" means all such agreements.
"Aircraft Purchase Agreement Assignment" means, in the case of
an Airbus A319-100 aircraft, a Purchase Agreement Assignment substantially in
the form of Exhibit A-4(a) to the Note Purchase Agreement, and in the case of a
Boeing 757-300 aircraft or a Boeing 747-400 aircraft, a Purchase Agreement
Assignment substantially in the form of Exhibit A-4(b) to the Note Purchase
Agreement.
"Assumed Amortization Schedule" means Schedule VII to the Note
Purchase Agreement.
"Average Life Date" means, for any Equipment Note, the date
which follows the time of determination by a period equal to the Remaining
Weighted Average Life of such Equipment Note.
"Bankruptcy Code" means the United States Bankruptcy Code, 11
U.S.C. Sections 101 et seq.
"Basic Pass Through Trust Agreement" means the Pass Through
Trust Agreement, dated as of June 3, 1999, among the Company,
Northwest Airlines
Corporation and
Annex A-1
the Pass Through Trustee, as amended, supplemented or modified, but does not
include any Trust Supplement.
"Boeing" means The Boeing Company, a Delaware corporation.
"Business Day" means any day, other than a Saturday, Sunday or
other day on which commercial banks are authorized or required by law to close
in
New York,
New York, Minneapolis, Minnesota, Chicago, Illinois, Hartford,
Connecticut, Boston, Massachusetts or Salt Lake City, Utah.
"Certificate" has the meaning set forth in the recitals to the
Note Purchase Agreement.
"Certificate Holder" means the Person in whose name a
Certificate is registered in the Register.
"Class" means the class of Certificates issued by each Pass
Through Trust.
"Class A-1 Certificates" means the Class A-1 Certificates
issued by the Northwest Airlines Pass Through Trust, Class 2001-1A-1.
"Class A-1 Trust" means the Northwest Airlines Pass Through
Trust, Class 2001-1A1 formed pursuant to the Basic Pass Through Trust Agreement
and Class A-1 Trust Supplement.
"Class A-1 Trust Supplement" means Trust Supplement No.
2001-1A-1, dated as of June 1, 2001, by and among the Guarantor, the Company and
the Pass Through Trustee, as amended, supplemented or modified, to the Basic
Pass Through Trust Agreement.
"Class A-2 Certificates" means the Class A-2 Certificates
issued by the Northwest Airlines Pass Through Trust, Class 2001-1A-2.
"Class A-2 Trust" means the Northwest Airlines Pass Through
Trust, Class 2001-1A2 formed pursuant to the Basic Pass Through Trust Agreement
and Class A-2 Trust Supplement.
"Class A-2 Trust Supplement" means Trust Supplement No.
2001-1A-2, dated as of June 1, 2001, by and among the Guarantor, the Company and
the Pass Through Trustee, as amended, supplemented or modified, to the Basic
Pass Through Trust Agreement.
"Class B Certificates" means the Class B Certificates issued
by the Northwest Airlines Pass Through Trust, Class 2001-1B.
"Class B Trust" means the Northwest Airlines Pass Through
Trust, Class 2001-1B formed pursuant to the Basic Pass Through Trust Agreement
and Class B Trust Supplement.
Annex A-2
"Class B Trust Supplement" means Trust Supplement No. 2001-1B,
dated as of June 1, 2001, by and among the Guarantor, the Company and the Pass
Through Trustee, as amended, supplemented or modified, to the Basic Pass Through
Trust Agreement.
"Class C Certificates" means the Class C Certificates issued
by the Northwest Airlines Pass Through Trust, Class 2001-1C.
"Class C Trust" means the Northwest Airlines Pass Through
Trust, Class 2001-1C formed pursuant to the Basic Pass Through Trust Agreement
and Class C Trust Supplement.
"Class C Trust Supplement" means Trust Supplement No. 2001-1C,
dated as of June 1, 2001, by and among the Guarantor, the Company and the Pass
Through Trustee, as amended, supplemented or modified, to the Basic Pass Through
Trust Agreement.
"Class D Certificates" means the Class D Certificates, if any,
issued by the Northwest Airlines Pass Through Trust, Class 2001-1D.
"Class D Pass Through Trustee" means the trustee under the
Class D Trust Supplement.
"Class D Trust" means the Northwest Airlines Pass Through
Trust, Class 2001-1D to be formed upon execution of the Class D Trust Supplement
to the Basic Pass Through Trust Agreement.
"Class D Trust Supplement" means the Trust Supplement No.
2001-1D substantially in the form of Exhibit G to the Note Purchase Agreement.
"Closing Date" means the Business Day on which a closing
occurs under the Financing Agreements.
"Closing Notice" has the meaning set forth in Section 2(b) of
the Note Purchase Agreement.
"Company" means Northwest Airlines, Inc., a Minnesota
corporation.
"Cut-Off Date" means the earlier of (a) the day after the
Delivery Period Termination Date and (b) the date on which a Triggering Event
occurs.
"Delivery Period Termination Date" means March 31, 2003.
"Deposit" has the meaning set forth in the recitals to the
Note Purchase Agreement.
"Deposit Account" means with respect to any Trust (other than
the Class D Trust) an account established under Section 1.2 of the Deposit
Agreement relating to such Trust.
"Deposit Agreement" has the meaning set forth in the recitals
to the Note Purchase Agreement.
Annex A-3
"Deposit Make-Whole Amount" means, (a) except as provided in
clause (b) below, with respect to the distribution of unused Deposits to holders
of any Class of Certificates after the Delivery Period Termination Date, as of
any date of determination, an amount equal to the excess, if any, of (i) the
present value of the excess of (x) the scheduled payment of principal and
interest to maturity of the related Series of Equipment Notes, in a principal
amount equal to the maximum principal amount thereof (the "Maximum Amount")
minus the Non-Premium Amount, on each remaining Regular Distribution Date for
such Class under the Assumed Amortization Schedule over (y) the scheduled
payment of principal and interest to maturity of the Equipment Notes actually
acquired by the Trustee for such Class on each such Regular Distribution Date,
such present value computed by discounting such excess on a semiannual basis on
each Regular Distribution Date (assuming a 360-day year of twelve 30-day months)
using a discount rate equal to the Treasury Yield plus 165 basis points in the
case of the Class A-1 Certificates, 145 basis points in the case of the Class
A-2 Certificates, 230 basis points in the case of the Class B Certificates, and
265 basis points in the case of the Class C Certificates, over (ii) the amount
of such unused Deposits to be distributed to the holders of such Certificates,
minus the Non-Premium Amount plus accrued and unpaid interest on such net amount
to but excluding the date of determination from and including the preceding
Regular Distribution Date (or if such date of determination precedes the first
Regular Distribution Date, the Issuance Date); and (b) with respect to the
distribution of unused Deposits to holders of any Certificates resulting from
the non-issuance of a Series D Equipment Note for an Airbus A319-100 Aircraft or
Boeing 757-300 Aircraft, an amount equal to the excess, if any, of (i) the
present value of the scheduled payments of principal and interest to maturity of
the related Series of Equipment Notes in a principal amount equal to the amount
of such unused Deposits for such Class (assuming (A) the principal payments in
respect of such Equipment Notes will be made based upon the Assumed Amortization
Schedule applied proportionately to such Equipment Notes and (B) such present
value will otherwise be computed on the basis set forth in clause (a) above)
using a discount rate equal to the Treasury Yield over (ii) the amount of such
unused Deposits to be distributed to the holders of such Certificates plus
accrued and unpaid interest on such amount to but excluding the date of
determination from and including the preceding Regular Distribution Date (or if
such date of determination precedes the first Regular Distribution Date, the
Issuance Date).
"Depositary" means ABN AMRO Bank N.V., doing business through
a United States branch, a banking institution organized under the laws of The
Netherlands.
"Depositary Threshold Rating" means, with respect to the
Depositary or any Replacement Depositary, short-term unsecured rating of A-1+
from Standard & Poor's and P-1 from Moody's.
"Eligible Aircraft" has the meaning set forth in the recitals
to the Note Purchase Agreement.
"Equipment Notes" means and includes any secured certificates
issued under any Indenture in the form specified in Section 2.01 thereof (as
such form may be varied pursuant to the terms of such Indenture) and any
Equipment Note issued under any Indenture in exchange for or replacement of any
other Equipment Note.
Annex A-4
"Escrow Agent" has the meaning set forth in the first
paragraph of the Note Purchase Agreement.
"Escrow and Paying Agent Agreement" has the meaning set forth
in the recitals to the Note Purchase Agreement.
"FAA" means the Federal Aviation Administration of the United
States.
"Fee Letter" means the Fee Letter dated as of the date of the
Note Purchase Agreement among the Liquidity Provider, the Subordination Agent
and Northwest with respect to the Liquidity Facilities.
"Final Withdrawal" with respect to each Escrow and Paying
Agent Agreement, has the meaning set forth in Section 1.2 thereof.
"Financing Agreements" means, collectively, the Lease
Financing Agreements and the Owner Financing Agreements.
"Government Entity" means (a) any federal, state, provincial
or similar government, and any body, board, department, commission, court,
tribunal, authority, agency or other instrumentality of any such government or
otherwise exercising any executive, legislative, judicial, administrative or
regulatory functions of such government or (b) any other government entity
having jurisdiction over any matter contemplated by the Operative Documents or
relating to the observance or performance of the obligations of any of the
parties to the Operative Documents.
"Guarantee" means a Guarantee whereby
Northwest Airlines
Corporation guarantees (i) the Company's obligations under a Lease (in the case
of a Leased Aircraft) or (ii) the Company's obligations under an Owned Aircraft
Indenture (in the case of an Owned Aircraft).
"Guarantor" means
Northwest Airlines Corporation, a Delaware
corporation, and its successors and assigns.
"H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System.
"Indemnitee" means the Escrow Agent and the Paying Agent.
"Indentures" means, collectively, the Leased Aircraft
Indentures and the Owned Aircraft Indentures.
"Initial Deposits" has the meaning set forth in the recitals
to the Note Purchase Agreement.
"Intercreditor Agreement" has the meaning set forth in the
recitals to the Note Purchase Agreement.
Annex A-5
"Issuance Date" means the date of the original issuance of the
Certificates.
"Law" means (a) any constitution, treaty, statute, law,
decree, regulation, order, rule or directive of any Government Entity, and (b)
any judicial or administrative interpretation or application of, or decision
under, any of the foregoing.
"Lease" means a Lease Agreement substantially in the form of
Exhibit A-2 to the Note Purchase Agreement.
"Lease Financing Agreements" means, collectively, the Aircraft
Purchase Agreement Assignment, the Leased Aircraft Participation Agreement, the
Lease, the Leased Aircraft Indenture, the Equipment Notes issued under the
Leased Aircraft Indenture, the Guarantee and the Trust Agreement relating to the
financing of a Leased Aircraft.
"Lease Period" has the meaning set forth in the Participation
Agreement.
"Leased Aircraft" means an Aircraft subject to a Lease.
"Leased Aircraft Indenture" means a Trust Indenture and
Security Agreement substantially in the form of Exhibit A-3 to the Note Purchase
Agreement.
"Leased Aircraft Participation Agreement" means a
Participation Agreement substantially in the form of Exhibit A-1 to the Note
Purchase Agreement.
"Liquidity Facility" has the meaning set forth in the recitals
to the Note Purchase Agreement.
"Liquidity Provider" has the meaning set forth in the recitals
to the Note Purchase Agreement.
"Loan Trustee" means the "Indenture Trustee" as defined in the
Financing Agreements.
"Mandatory Document Terms" means the terms set forth on
Schedule V to the Note Purchase Agreement.
"Mandatory Economic Terms" means the terms set forth on
Schedule VI to the Note Purchase Agreement.
"Non-Premium Amount" means the amount equal to the sum of (i)
the amount of Deposits relating to any Aircraft not delivered prior to the
Delivery Period Termination Date due to any reason not occasioned by the
Company's fault or negligence and (ii) in the case of Class C Certificates, $7.5
million.
"Note Purchase Agreement" means the Note Purchase Agreement to
which this Annex A is attached.
Annex A-6
"Notice of Purchase Withdrawal" with respect to each Deposit
Agreement, has the meaning set forth in Section 2.3 thereof.
"NWA Corp." means
Northwest Airlines Corporation, a Delaware
corporation.
"Operative Documents" means, collectively, the Pass Through
Trust Agreements, the Escrow and Paying Agent Agreements, the Deposit
Agreements, the Liquidity Facilities, the Intercreditor Agreement, the
Certificates and the Financing Agreements.
"Owned Aircraft" means an Aircraft subject to an Owned
Aircraft Indenture.
"Owned Aircraft Indenture" means a Trust Indenture and
Security Agreement substantially in the form of Exhibit C-2 to the Note Purchase
Agreement.
"Owned Aircraft Participation Agreement" means a Participation
Agreement substantially in the form of Exhibit C-1 to the Note Purchase
Agreement.
"Owner Financing Agreements" means, collectively, the Owned
Aircraft Participation Agreement, the Guarantee, the Owned Aircraft Indenture
and the Equipment Notes issued thereunder.
"Owner Participant" means, with respect to any Leased
Aircraft, the Person named as the Owner Participant in the Participation
Agreement with respect to such Leased Aircraft.
"Owner Trust" means with respect to any Leased Aircraft, the
trust created by the "Trust Agreement" referred to in the Leased Aircraft
Indenture related thereto.
"Owner Trustee" means with respect to any Leased Aircraft, the
"Owner Trustee" party to the "Trust Agreement" referred to in the Leased
Aircraft Indenture related thereto
"Participation Agreements" means, collectively, the Leased
Aircraft Participation Agreements and the Owned Aircraft Participation
Agreements.
"Pass Through Trust" has the meaning set forth in the recitals
to the Note Purchase Agreement.
"Pass Through Trust Agreement" means each of the four (or
five, upon execution of the Class D Trust Supplement) separate Trust
Supplements, together in each case with the Basic Pass Through Trust Agreement,
each dated as of the Issuance Date (except the Class D Trust Supplement) by and
among the Company, the Guarantor and Pass Through Trustee.
"Pass Through Trustee" has the meaning set forth in the first
paragraph of the Note Purchase Agreement.
"Paying Agent" has the meaning set forth in the first
paragraph of the Note Purchase Agreement.
Annex A-7
"Person" means any individual, firm, partnership, joint
venture, trust, trustee, Government Entity, organization, association,
corporation, government agency, committee, department, authority and other body,
corporate or incorporate, whether having distinct legal status or not, or any
member of any of the same.
"Purchase Agreement" has the meaning set forth in the recitals
to the Note Purchase Agreement.
"Qualified Owner Participant" means a Person which has a
tangible net worth (exclusive of goodwill) greater than $50,000,000 in the case
of an Airbus A319-100 Aircraft or a Boeing 757-300 Aircraft and $75,000,000 in
the case of a Boeing 747-400 Aircraft.
"Rating Agencies" means, collectively, at any time, each
nationally recognized rating agency which shall have been requested to rate the
Certificates and which shall then be rating the Certificates. The initial Rating
Agencies will be Xxxxx'x Investors Service, Inc. and Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc.
"Rating Agency Confirmation" means, with respect to any
Financing Agreement that has been modified in any material respect from the
forms thereof attached to the Note Purchase Agreement, a written confirmation
from each of the Rating Agencies that the use of such Financing Agreement with
such modifications would not result in (i) a reduction of the rating for any
Class of Certificates below the then current rating for such class of
Certificates or (ii) a withdrawal or suspension of the rating of any Class of
Certificates.
"Register" means the register maintained pursuant to Sections
3.04 and 7.11 of the Basic Pass Through Trust Agreement with respect to each
Pass Through Trust.
"Regular Distribution Dates" shall mean April 1 and October 1
of each year, commencing October 1, 2001.
"Remaining Weighted Average Life" means, with respect to any
Equipment Note, at the redemption date of such Equipment Note, the number of
days equal to the quotient obtained by dividing (a) the sum of each of the
products obtained by multiplying (i) the amount of each then remaining
installment of principal of such Equipment Note, including the payment due on
the maturity date of such Equipment Note by (ii) the number of days from and
including the redemption date to but excluding the schedule payment date of such
principal installment, by (b) the then unpaid principal amount of such Equipment
Note.
"Replacement Depositary" has the meaning set forth in Section
5(a)(vi) of the Note Purchase Agreement.
"Replacement Depositary Agreement" means, for any Class of
Certificates (other than the Class D Certificates) , a deposit agreement
substantially in the form of the replaced Deposit Agreement for such Class of
Certificates as shall permit the Rating Agencies to confirm in writing their
respective ratings then in effect for such Class of Certificates (before the
downgrading of such ratings, if any, as a result of the downgrading of the
Depositary).
"Scheduled Closing Date" has the meaning set forth in Section
2(b) hereof.
Annex A-8
"Section 1110" means 11 U.S.C. Section 1110 of the Bankruptcy
Code or any successor or analogous Section of the federal bankruptcy law in
effect from time to time.
"Series A-1 Equipment Notes" means Equipment Notes issued
under an Indenture and designated as "Series A-1" thereunder.
"Series A-2 Equipment Notes" means Equipment Notes issued
under an Indenture and designated as "Series A-2" thereunder.
"Series B Equipment Notes" means Equipment Notes issued under
an Indenture and designated as "Series B" thereunder.
"Series C Equipment Notes" means Equipment Notes issued under
an Indenture and designated as "Series C" thereunder.
"Series D Equipment Notes" means Equipment Notes issued under
an Indenture and designated as "Series D" thereunder.
"Series D Non-Issuance Withdrawal", with respect to each
Escrow and Paying Agent Agreement, has the meaning set forth in Section 1.2
thereof.
"Subordination Agent" has the meaning set forth in the first
paragraph of the Note Purchase Agreement.
"Substitute Aircraft" has the meaning set forth in Section
2(g) of the Note Purchase Agreement.
"Substitute Closing Date" has the meaning set forth in Section
2(e) of the Note Purchase Agreement.
"Taxes" means all license, recording, documentary,
registration and other similar fees and all taxes, levies, imposts, duties,
charges, assessments or withholdings of any nature whatsoever imposed by any
Taxing Authority, together with any penalties, additions to tax, fines or
interest thereon or additions thereto.
"Taxing Authority" means any federal, state or local
government or other taxing authority in the United States, any foreign
government or any political subdivision or taxing authority thereof, any
international taxing authority or any territory or possession of the United
States or any taxing authority thereof.
"Treasury Yield" means, at the time of determination with
respect to any Equipment Note, the interest rate (expressed as a semiannual
equivalent and as a decimal and, in the case of United States Treasury bills,
converted to a bond equivalent yield) determined to be the per annum rate equal
to the semi-annual yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Equipment Note and trading in the
public securities markets either as determined by interpolation between the most
recent weekly average yield to maturity for two series of United States Treasury
securities, trading in the public securities markets, (A) one maturing as close
as possible to, but earlier than, the Average Life
Annex A-9
Date of such Equipment Note and (B) the other maturing as close as possible to,
but later than, the Average Life Date of such Equipment Note, in each case as
published in the most recent H.15(519) or, if a weekly average yield to maturity
for United States Treasury securities maturing on the Average Life Date of such
Equipment Note is reported in the most recent H.15(519), such weekly average
yield to maturity as published in such H.15(519). The "most recent H.15(519)"
means the H.15(519) published prior to the close of business on the third
business day prior to the applicable payment or redemption date.
"Triggering Event" has the meaning assigned to such term in
the Intercreditor Agreement.
"Trust" means the Class A-1 Trust, the Class A-2 Trust, the
Class B Trust, the Class C Trust or, upon its formation, the Class D Trust.
"Trust Agreement" means a Trust Agreement substantially in the
form of Exhibit A-5 to the Note Purchase Agreement.
"Trust Supplement" means an agreement supplemental to the
Basic Pass Through Trust Agreement pursuant to which (i) a separate trust is
created for the benefit of the holders of the Certificates of a class, (ii) the
issuance of the Certificates of such class representing fractional undivided
interests in such trust is authorized and (iii) the terms of the Certificates of
such Class are established.
"Underwriters" has the meaning set forth in the recitals to
the Note Purchase Agreement.
"Underwriting Agreement" has the meaning set forth in the
recitals to the Note Purchase Agreement.
Annex A-10
