EXHIBIT 4(f)(3)
EXECUTION COPY
ESCROW AND PAYING AGENT AGREEMENT
(Class B)
Dated as of June 1, 2001
among
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as Escrow Agent,
XXXXXXX XXXXX BARNEY INC.
X.X. XXXXXX SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DUETSCHE BANC ALEX. XXXXX INC.
XXXXXX XXXXXXX & CO. INCORPORATED
AND
U.S. BANCORP XXXXX XXXXXXX INC.
as Underwriters,
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Pass Through Trustee
for and on behalf of
Northwest Airlines Pass Through Trust 2001-1B
as Pass Through Trustee,
AND
STATE STREET BANK AND TRUST COMPANY,
as Paying Agent
TABLE OF CONTENTS
Page
Section 1. Escrow Agent.....................................................2
Section 1.1 Appointment of Escrow Agent................................2
Section 1.2 Instruction, Etc...........................................2
Section 1.3 Initial Escrow Amount; Issuance of Escrow Receipts.........4
Section 1.4 Payments to Receiptholders.................................4
Section 1.5 Mutilated, Destroyed, Lost or Stolen Escrow Receipt........4
Section 1.6 Additional Escrow Amounts..................................5
Section 1.7 Resignation or Removal of Escrow Agent.....................5
Section 1.8 Persons Deemed Owners......................................5
Section 1.9 Further Assurances.........................................6
Section 2. Paying Agent.....................................................6
Section 2.1 Appointment of Paying Agent................................6
Section 2.2 Establishment of Paying Agent Account......................6
Section 2.3 Payments from Paying Agent Account.........................6
Section 2.4 Withholding Taxes..........................................7
Section 2.5 Resignation or Removal of Paying Agent.....................8
Section 2.6 Notice of Final Withdrawal.................................8
Section 3. Payments.........................................................8
Section 4. Other Actions....................................................9
Section 5. Representations and Warranties of the Escrow Agent...............9
Section 6. Representations and Warranties of the Paying Agent..............10
Section 7. Indemnification.................................................11
Section 8. Amendment, Etc..................................................11
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PAGE
Section 9. Notices.........................................................12
Section 10. Transfer........................................................12
Section 11. Entire Agreement................................................12
Section 12. GOVERNING LAW...................................................12
Section 13. WAIVER OF JURY TRIAL RIGHT......................................12
Section 14. Counterparts....................................................13
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EXHIBITS
Exhibit A Escrow Receipt
Exhibit B Withdrawal Certificate
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This ESCROW AND PAYING AGENT AGREEMENT (Class B) dated as of June 1,
2001 (as amended, modified or supplemented from time to time, this "Agreement")
among 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"), Xxxxxxx Xxxxx Barney Inc., X.X. Xxxxxx
Securities Inc., Credit Suisse First Boston Corporation, Duetsche Banc Alex.
Xxxxx Inc., Xxxxxx Xxxxxxx & Co. Incorporated and U.S. Bancorp Xxxxx Xxxxxxx
Inc., as Underwriters of the Certificates referred to below (the "Underwriters"
and together with their respective transferees and assigns as registered owners
of the Certificates, the "Investors") under the Underwriting Agreement referred
to below, State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
except as otherwise expressly provided herein, but solely as trustee (in such
capacity, together with its successors in such capacity, the "Pass Through
Trustee") under the Pass Through Trust Agreement referred to below, and State
Street Bank and Trust Company, as paying agent hereunder (in such capacity,
together with its successors in such capacity, the "Paying Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Northwest Airlines Corporation, a Delaware corporation (the
"Guarantor"), Northwest Airlines, Inc., a Minnesota corporation ("Northwest")
and the Pass Through Trustee have entered into a Trust Supplement, dated as of
the date hereof (the "Trust Supplement"), to the Pass Through Trust Agreement,
dated as of June 3, 1999, by and among the Guarantor, Northwest and the Pass
Through Trustee , relating to Northwest Airlines Pass Through Trust 2001-1B (the
"Pass Through Trust") pursuant to which the Northwest Airlines Pass Through
Trust, Series 2001-1B Certificates referred to therein (the "Certificates") are
being issued;
WHEREAS, Northwest and the Underwriters have entered into an
Underwriting Agreement dated May 22, 2001 (as amended, modified or supplemented
from time to time in accordance with the terms thereof, the "Underwriting
Agreement") pursuant to which the Pass Through Trustee will issue and sell the
Certificates to the Underwriters;
WHEREAS, Northwest, the Pass Through Trustee, certain other pass
through trustees and certain other persons concurrently herewith are entering
into the Note Purchase Agreement, dated as of the date hereof (the "Note
Purchase Agreement"), pursuant to which the Pass Through Trustee has agreed to
acquire from time to time on or prior to the Delivery Period Termination Date
(as defined in the Note Purchase Agreement) equipment notes (the "Equipment
Notes") issued to finance the acquisition of aircraft by Northwest, as lessee or
as owner, utilizing a portion of the proceeds from the sale of the Certificates
(the "Net Proceeds");
WHEREAS, the Underwriters and the Pass Through Trustee intend that
the Net Proceeds be held in escrow by the Escrow Agent on behalf of the
Investors, subject to withdrawal upon request by the Pass Through Trustee and
satisfaction of the conditions set forth in the Note Purchase Agreement for the
purpose of purchasing Equipment Notes, and that pending such withdrawal the Net
Proceeds be deposited on behalf of the Escrow Agent with ABN AMRO Bank N.V.,
acting through a United States branch, as Depositary (the "Depositary") under
the Deposit Agreement, dated as of the date hereof, between the Depositary
and the Escrow Agent relating to the Pass Through Trust (as amended, modified or
supplemented from time to time in accordance with the terms thereof, the
"Deposit Agreement") pursuant to which, among other things, the Depositary will
pay interest for distribution to the Investors and establish accounts from which
the Escrow Agent shall make withdrawals upon request of and proper certification
by the Pass Through Trustee;
WHEREAS, the Escrow Agent wishes to appoint the Paying Agent to pay
amounts required to be distributed to the Investors in accordance with this
Agreement; and
WHEREAS, capitalized terms used but not defined herein shall have
the respective meanings set forth or incorporated by reference in the Pass
Through Trust Agreement.
NOW, THEREFORE, in consideration of the obligations contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. ESCROW AGENT.
Section 1.1 APPOINTMENT OF ESCROW AGENT. Each of the Underwriters,
for and on behalf of each of the Investors, hereby irrevocably appoints,
authorizes and directs the Escrow Agent to act as escrow agent and fiduciary
hereunder and under the Deposit Agreement for such specific purposes and with
such powers as are specifically delegated to the Escrow Agent by the terms of
this Agreement, together with such other powers as are reasonably incidental
thereto. Any and all money received and held by the Escrow Agent under this
Agreement or the Deposit Agreement shall be held in escrow by the Escrow Agent
in accordance with the terms of this Agreement. This Agreement is irrevocable
and the Investors' rights with respect to any monies received and held in escrow
by the Escrow Agent under this Agreement or the Deposit Agreement shall only be
as provided under the terms and conditions of this Agreement and the Deposit
Agreement. The Escrow Agent (which term as used in this sentence shall include
reference to its affiliates and its own and its affiliates' officers, directors,
employees and agents):
(a) shall have no duties or responsibilities except those expressly
set forth in this Agreement;
(b) shall not be responsible to the Pass Through Trustee or the
Investors for any recitals, statements, representations or warranties of
any person other than itself contained in this Agreement or the Deposit
Agreement or for the failure by the Pass Through Trustee, the Investors or
any other person or entity (other than the Escrow Agent) to perform any of
its obligations hereunder (whether or not the Escrow Agent shall have any
knowledge thereof); and
(c) shall not be responsible for any action taken or omitted to be
taken by it hereunder or provided for herein or in connection herewith,
except for its own willful misconduct or gross negligence (or simple
negligence in connection with the handling of funds) or breach of its
obligations hereunder.
Section 1.2 INSTRUCTION, ETC. The Underwriters, for and on behalf of
each of the Investors, hereby irrevocably instruct the Escrow Agent, and the
Escrow Agent agrees: (a) to
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enter into the Deposit Agreement and, if requested by the Company pursuant to
Section 5(a)(vi) of the Note Purchase Agreement, to enter into a Replacement
Deposit Agreement with the Replacement Depositary specified by the Company; (b)
to appoint the Paying Agent as provided in this Agreement; (c) upon receipt at
any time and from time to time prior to the Termination Date (as defined below)
of a certificate substantially in the form of Exhibit B hereto (a "Withdrawal
Certificate") executed by the Pass Through Trustee, together with an attached
Notice of Purchase Withdrawal in substantially the form of Exhibit A to the
Deposit Agreement duly completed by the Pass Through Trustee (the "Applicable
Notice of Purchase Withdrawal" and the withdrawal to which it relates, a
"Purchase Withdrawal"), immediately to execute the Applicable Notice of Purchase
Withdrawal as Escrow Agent and transmit it to the Depositary by facsimile
transmission in accordance with the Deposit Agreement; provided that, upon the
request of the Pass Through Trustee after such transmission, the Escrow Agent
shall cancel such Applicable Notice of Purchase Withdrawal; (d) upon receipt of
a Withdrawal Certificate executed by the Pass Through Trustee, together with an
attached Notice of Replacement Withdrawal in substantially the form of Exhibit C
to the Deposit Agreement (a "Notice of Replacement Withdrawal") duly completed
by the Pass Through Trustee, to (X) give such Notice of Replacement Withdrawal
to the Depositary requesting a withdrawal, on the date specified in such notice,
which shall not be less than 15 days after such notice is given (the
"Replacement Withdrawal Date"), of all Deposits then held by the Depositary
together with, if the Replacement Withdrawal Date occurs on a Regular
Distribution Date, all accrued and unpaid interest on such Deposits to but
excluding the Replacement Withdrawal Date, and (Y) direct the Depositary to
transfer such Deposits on behalf of the Escrow Agent to the Replacement
Depositary in accordance with the Replacement Deposit Agreement; (e) upon
receipt at any time and from time to time of a Withdrawal Certificate executed
by the Pass Through Trustee, together with an attached Notice of Series D
Non-Issuance Withdrawal in substantially the form of Exhibit D to the Deposit
Agreement duly completed by the Pass Through Trustee (the "Applicable Notice of
Series D Non-Issuance Withdrawal" and the withdrawal to which it relates, a
"Series D Non-Issuance Withdrawal"), immediately to execute the Applicable
Notice of Series D Non-Issuance Withdrawal as Escrow Agent and transmit it to
the Depositary by facsimile transmission in accordance with the Deposit
Agreement; provided that, upon the request of the Pass Through Trustee after
such transmission, the Escrow Agent shall cancel with Applicable Notice of
Series D Non-Issuance Withdrawal; and (f) if there are any undrawn Deposits (as
defined in the Deposit Agreement) on the "Termination Date", which shall mean
the earlier of (i) March 31, 2003 and (ii) the day on which the Escrow Agent
receives notice from the Pass Through Trustee that the Pass Through Trustee's
obligation to purchase Equipment Notes under the Note Purchase Agreement has
terminated, to give notice to the Depositary (with a copy to the Paying Agent)
substantially in the form of Exhibit B to the Deposit Agreement requesting a
withdrawal of all of the remaining Deposits, together with accrued and unpaid
interest on such Deposits to the date of withdrawal, on the 15th day after the
date that such notice of withdrawal is given to the Depositary (or, if not a
Business Day, on the next succeeding Business Day) (a "Final Withdrawal"),
provided that if the day scheduled for the Final Withdrawal in accordance with
the foregoing is within ten (10) days before or after a Regular Distribution
Date, then the Escrow Agent shall request that such requested Final Withdrawal
be made on such Regular Distribution Date (the date of such requested
withdrawal, the "Final Withdrawal Date"). If for any reason the Escrow Agent
shall have failed to give the Final Withdrawal Notice to the Depositary on or
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before March 31, 2003, and there are unwithdrawn Deposits on such date, the
Final Withdrawal Date shall be deemed to be April 15, 2003.
Section 1.3 INITIAL ESCROW AMOUNT; ISSUANCE OF ESCROW RECEIPTS. The
Escrow Agent hereby directs the Underwriters to, and the Underwriters hereby
acknowledge that on the date hereof they shall, irrevocably deliver to the
Depositary on behalf of the Escrow Agent, an amount in U.S. dollars ("Dollars")
and immediately available funds equal to $116,500,000 for deposit on behalf of
the Escrow Agent with the Depositary in accordance with Section 2.1 of the
Deposit Agreement. The Underwriters hereby instruct the Escrow Agent, upon
receipt of such sum from the Underwriters, to confirm such receipt by executing
(by manual or facsimile signature) and delivering to the Pass Through Trustee an
Escrow Receipt in the form of Exhibit A hereto (an "Escrow Receipt"), (a) to be
affixed by the Pass Through Trustee to each Certificate and (b) to evidence the
same percentage interest ("Escrow Interest") in the Account Amounts (as defined
below) as the Fractional Undivided Interest in the Pass Through Trust evidenced
by the Certificate to which it is to be affixed. The Escrow Agent shall provide
to the Pass Through Trustee for attachment to each Certificate newly issued
under and in accordance with the Pass Through Trust Agreement an executed Escrow
Receipt as the Pass Through Trustee may from time to time request of the Escrow
Agent. Each Escrow Receipt shall be registered by the Escrow Agent in a register
(the "Register") maintained by the Escrow Agent in the same name and same manner
as the Certificate to which it is attached and may not thereafter be detached
from such Certificate to which it is to be affixed prior to the distribution of
the Final Withdrawal pursuant to clause (d) of Section 1.2 hereof (the "Final
Distribution"). After the Final Distribution, no additional Escrow Receipts
shall be issued and the Pass Through Trustee shall request the return to the
Escrow Agent for cancellation of all outstanding Escrow Receipts.
Section 1.4 PAYMENTS TO RECEIPTHOLDERS. All payments and
distributions made to holders of an Escrow Receipt (collectively,
"Receiptholders") in respect of the Escrow Receipt shall be made only from
amounts deposited in the Paying Agent Account (as defined below) ("Account
Amounts"). Each Receiptholder, by its acceptance of an Escrow Receipt, agrees
that (a) it will look solely to the Account Amounts for any payment or
distribution due to such Receiptholder pursuant to the terms of the Escrow
Receipt and this Agreement and (b) it will have no recourse to Northwest, the
Pass Through Trustee, the Paying Agent or the Escrow Agent, except as expressly
provided herein or in the Pass Through Trust Agreement. No Receiptholder shall
have any right to vote or in any manner otherwise control the operation and
management of the Paying Agent Account or the obligations of the parties hereto,
nor shall anything set forth herein, or contained in the terms of the Escrow
Receipt, be construed so as to constitute the Receiptholders from time to time
as partners or members of an association.
Section 1.5 MUTILATED, DESTROYED, LOST OR STOLEN ESCROW RECEIPT. If
(a) any mutilated Escrow Receipt is surrendered to the Escrow Agent or the
Escrow Agent receives evidence to its satisfaction of the destruction, loss or
theft of any Escrow Receipt and (b) there is delivered to the Escrow Agent and
the Pass Through Trustee such security, indemnity or bond, as may be required by
them to hold each of them harmless, then, absent notice to the Escrow Agent or
the Pass Through Trustee that such destroyed, lost or stolen Escrow Receipt has
been acquired by a bona fide purchaser, and provided that the requirements of
Section 8-405 of the Uniform Commercial Code in effect in any applicable
jurisdiction are met, the Escrow Agent shall execute and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or
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stolen Escrow Receipt, a new Escrow Receipt or Escrow Receipts and of like
Escrow Interest in the Account Amounts and bearing a number not
contemporaneously outstanding.
In connection with the issuance of any new Escrow Receipt under this
Section 1.5, the Escrow Agent may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Pass
Through Trustee and the Escrow Agent) connected therewith.
Any duplicate Escrow Receipt issued pursuant to this Section 1.5
shall constitute conclusive evidence of the appropriate Escrow Interest in the
Account Amounts, as if originally issued, whether or not the lost, stolen or
destroyed Escrow Receipt shall be found at any time.
The provisions of this Section 1.5 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Escrow Receipts.
Section 1.6 ADDITIONAL ESCROW AMOUNTS. On the date of any Purchase
Withdrawal, the Pass Through Trustee may re-deposit with the Depositary some or
all of the amounts so withdrawn in accordance with Section 2.4 of the Deposit
Agreement.
Section 1.7 RESIGNATION OR REMOVAL OF ESCROW AGENT. Subject to the
appointment and acceptance of a successor Escrow Agent as provided below, the
Escrow Agent may resign at any time by giving thirty (30) days' prior written
notice thereof to the Investors, but may not otherwise be removed except for
cause by the written consent of the Investors with respect to Investors
representing Escrow Interests aggregating not less than a majority in interest
in the Account Amounts (an "Action of Investors"). Upon any such resignation or
removal, the Investors, by an Action of Investors, shall have the right to
appoint a successor Escrow Agent. If no successor Escrow Agent shall have been
so appointed and shall have accepted such appointment within thirty (30) days
after the retiring Escrow Agent's giving of notice of resignation or the removal
of the retiring Escrow Agent, then the retiring Escrow Agent may appoint a
successor Escrow Agent. Any successor Escrow Agent shall be a bank which has an
office in the United States with a combined capital and surplus of at least
$100,000,000. Upon the acceptance of any appointment as Escrow Agent hereunder
by a successor Escrow Agent, such successor Escrow Agent shall enter into such
documents as the Pass Through Trustee shall require and shall thereupon succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Escrow Agent, and the retiring Escrow Agent shall be discharged from
its duties and obligations hereunder. No resignation or removal of the Escrow
Agent shall be effective unless a written confirmation shall have been obtained
from each of Xxxxx'x Investors Service, Inc. and Standard & Poor's Ratings
Services, a Division of the XxXxxx-Xxxx Companies, Inc., that the replacement of
the Escrow Agent with the successor Escrow Agent will not result in (a) a
reduction of the rating for the Certificates below the then current rating for
the Certificates or (b) a withdrawal or suspension of the rating of the
Certificates.
Section 1.8 PERSONS DEEMED OWNERS. Prior to due presentment of a
Certificate for registration of transfer, the Escrow Agent and the Paying Agent
may treat the Person in whose name any Escrow Receipt is registered (as of the
day of determination) as the owner of such Escrow Receipt for the purpose of
receiving distributions pursuant to this Agreement and
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for all other purposes whatsoever, and neither the Escrow Agent nor the Paying
Agent shall be affected by any notice to the contrary.
Section 1.9 FURTHER ASSURANCES. The Escrow Agent agrees to take such
actions, and execute such other documents, as may be reasonably requested by the
Pass Through Trustee in order to effectuate the purposes of this Agreement and
the performance by the Escrow Agent of its obligations hereunder.
Section 2. PAYING AGENT.
Section 2.1 APPOINTMENT OF PAYING AGENT. The Escrow Agent hereby
irrevocably appoints and authorizes the Paying Agent to act as its paying agent
hereunder, for the benefit of the Investors, for such specific purposes and with
such powers as are specifically delegated to the Paying Agent by the terms of
this Agreement, together with such other powers as are reasonably incidental
thereto. Any and all money received and held by the Paying Agent under this
Agreement or the Deposit Agreement shall be held in the Paying Agent Account for
the benefit of the Investors. The Paying Agent (which term as used in this
sentence shall include reference to its affiliates and its own and its
affiliates' officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those expressly
set forth in this Agreement, and shall not by reason of this Agreement be a
trustee for the Escrow Agent;
(b) shall not be responsible to the Escrow Agent for any recitals,
statements, representations or warranties of any person other then itself
contained in this Agreement or for the failure by the Escrow Agent or any other
person or entity (other than the Paying Agent) to perform any of its obligations
hereunder (whether or not the Paying Agent shall have any knowledge thereof);
and
(c) shall not be responsible for any action taken or omitted to be
taken by it hereunder or provided for herein or in connection herewith, except
for its own willful misconduct or gross negligence (or simple negligence in
connection with the handling of funds).
Section 2.2 ESTABLISHMENT OF PAYING AGENT ACCOUNT. The Paying Agent
shall establish a deposit account (the "Paying Agent Account") at State Street
Bank and Trust Company in the name of the Escrow Agent. It is expressly
understood by the parties hereto that the Paying Agent is acting as the paying
agent of the Escrow Agent hereunder and that no amounts on deposit in the Paying
Agent Account constitute part of the Trust Property.
Section 2.3 PAYMENTS FROM PAYING AGENT ACCOUNT. The Escrow Agent
hereby irrevocably instructs the Paying Agent, and the Paying Agent agrees to
act, as follows:
(a) On each Interest Payment Date (as defined in the Deposit
Agreement) or as soon thereafter as the Paying Agent has confirmed receipt in
the Paying Agent Account from the Depositary of any amount in respect of accrued
interest on the Deposits, the Paying Agent shall distribute out of the Paying
Agent Account the entire amount deposited therein by the Depositary. There shall
be so distributed to each Receiptholder of record on the 15th day (whether or
not a Business Day) preceding such Interest Payment Date by check mailed to such
Receiptholder, at the address appearing in the Register, such Receiptholder's
pro rata share
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(based on the Escrow Interest in the Account Amounts held by such Receiptholder)
of the total amount of interest deposited by the Depositary in the Paying Agent
Account on such date, except that, with respect to Escrow Receipts registered on
the Record Date in the name of The Depository Trust Company, a New York
corporation ("DTC"), such distribution shall be made by wire transfer in
immediately available funds to the account designated by DTC.
(b) Upon the confirmation by the Paying Agent of receipt in the
Paying Agent Account from the Depositary of any amount in respect of the Final
Withdrawal or any Series D Non-Issuance Withdrawal, the Paying Agent shall
forthwith distribute the entire amount of the Final Withdrawal or such Series D
Non-Issuance Withdrawal, as the case may be, deposited therein by the
Depositary. There shall be so distributed to each Receiptholder of record on the
15th day (whether or not a Business Day) preceding the Final Withdrawal Date or,
in the case of a Series D Non-Issuance Withdrawal, on the date specified for
payment thereof by the Pass Through Trustee in the Applicable Notice of Series D
Non-Issuance Withdrawal by check mailed to such Receiptholder, at the address
appearing in the Register, such Receiptholder's pro rata share (based on the
Escrow Interest in the Account Amounts held by such Receiptholder) of the total
amount in the Paying Agent Account on account of such Final Withdrawal or such
Series D Non-Issuance Withdrawal, as the case may be, except that, with respect
to Escrow Receipts registered on the Record Date in the name of DTC, such
distribution shall be made by wire transfer in immediately available funds to
the account designated by DTC.
(c) If any payment of interest or principal in respect of the Final
Withdrawal or any Series D Non-Issuance Withdrawal is not received by the Paying
Agent within five (5) days of the applicable date when due, then it shall be
distributed to Receiptholders after actual receipt by the Paying Agent on the
same basis as a Special Payment is distributed under the Pass Through Trust
Agreement.
(d) The Paying Agent shall include with any check mailed pursuant to
this Section any notice required to be distributed under the Pass Through Trust
Agreement that is furnished to the Paying Agent by the Pass Through Trustee.
Section 2.4 WITHHOLDING TAXES. The Paying Agent shall exclude and
withhold from each distribution of accrued interest on the Deposits (as defined
in the Deposit Agreement) and any amount in respect of the Final Withdrawal or
any Series D Non-Issuance Withdrawal any and all withholding taxes applicable
thereto as required by law. The Paying Agent agrees to act as such withholding
agent and, in connection therewith, whenever any present or future taxes or
similar charges are required to be withheld with respect to any amounts payable
in respect of the Deposits (as defined in the Deposit Agreement) or the escrow
amounts, to withhold such amounts and timely pay the same to the appropriate
authority in the name of and on behalf of the Receiptholders, that it will file
any necessary withholding tax returns or statements when due, and that, as
promptly as possible after the payment thereof, it will deliver to each such
Receiptholder appropriate documentation showing the payment thereof, together
with such additional documentary evidence as such Receiptholder may reasonably
request from time to time. The Paying Agent agrees to file any other information
reports as it may be required to file under United States law.
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Section 2.5 RESIGNATION OR REMOVAL OF PAYING AGENT. Subject to the
appointment and acceptance of a successor Paying Agent as provided below, the
Paying Agent may resign at any time by giving thirty (30) days' prior written
notice thereof to the Escrow Agent, but may not otherwise be removed except for
cause by the Escrow Agent. Upon any such resignation or removal, the Escrow
Agent shall have the right to appoint a successor Paying Agent. If no successor
Paying Agent shall have been so appointed and shall have accepted such
appointment within thirty (30) days after the retiring Paying Agent's giving of
notice of resignation or the removal of the retiring Paying Agent, then the
retiring Paying Agent may appoint a successor Paying Agent. Any Successor Paying
Agent shall be a bank which has an office in the United States with a combined
capital and surplus of at least US$100,000,000. Upon the acceptance of any
appointment as Paying Agent hereunder by a successor Paying Agent, such
successor Paying Agent shall enter into such documents as the Escrow Agent shall
require and shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Paying Agent, and the retiring
Paying Agent shall be discharged from its duties and obligations hereunder.
Section 2.6 NOTICE OF FINAL WITHDRAWAL. Promptly after receipt by
the Paying Agent of notice that the Escrow Agent has requested a Final
Withdrawal or a Series D Non-Issuance Withdrawal or that a Final Withdrawal will
be made, the Paying Agent shall cause notice of the distribution of the Final
Withdrawal or a Series D Non-Issuance Withdrawal, as the case may be, to be
mailed to each of the Receiptholders at its address as it appears in the
Register. Such notice shall be mailed not less than fifteen (15) days prior to
the Final Withdrawal Date or date of payment of such Series D Non-Issuance
Withdrawal, as the case may be. Such notice shall set forth:
(a) the Final Withdrawal Date or date of payment of such Series D
Non-Issuance Withdrawal, as the case may be, and the date for determining
Receiptholders of record who shall be entitled to receive distributions in
respect of the Final Withdrawal or a Series D Non-Issuance Withdrawal;
(b) the amount of the payment in respect of the Final Withdrawal or
a Series D Non-Issuance Withdrawal for each $1,000 face amount Certificate
(based on information provided by the Pass Through Trustee) and the amount
thereof constituting unused Deposits (as defined in the Deposit Agreement)
and interest thereon; and
(c) if the Final Withdrawal Date or date of payment of such Series D
Non-Issuance Withdrawal, as the case may be, is the same date as a Regular
Distribution Date, the total amount to be received on such date for each
$1,000 face amount Certificate (based on information provided by the Pass
Through Trustee).
Such mailing may include any notice required to be given to
Certificateholders in connection with such distribution pursuant to the Pass
Through Trust Agreement.
Section 3. PAYMENTS. If, notwithstanding the instructions in Article
IV of the Deposit Agreement that all amounts payable to the Escrow Agent under
the Deposit Agreement be paid by the Depositary directly to the Paying Agent or
the Pass Through Trustee (depending on the circumstances), the Escrow Agent
receives any payment thereunder, then the Escrow
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Agent shall forthwith pay such amount in Dollars and in immediately available
funds by wire transfer to (a) in the case of a payment of accrued interest on
the Deposits (as defined in the Deposit Agreement) or any Final Withdrawal or
any Series D Non-Issuance Withdrawal directly to the Paying Agent Account and
(b) in the case of any Purchase Withdrawal, directly to the Pass Through Trustee
or its designee as specified and in the manner provided in the Applicable Notice
of Purchase Withdrawal. The Escrow Agent hereby waives any and all rights of
set-off, combination of accounts, right of retention or similar right (whether
arising under applicable law, contract or otherwise) it may have against amounts
payable to the Paying Agent howsoever arising.
Section 4. OTHER ACTIONS. The Escrow Agent shall take such other
actions under or in respect of the Deposit Agreement (including, without
limitation, the enforcement of the obligations of the Depositary thereunder) as
the Investors, by an Action of Investors, may from time to time request.
Section 5. REPRESENTATIONS AND WARRANTIES OF THE ESCROW AGENT. The
Escrow Agent represents and warrants to Northwest, the Investors, the Paying
Agent and the Pass Through Trustee as follows:
(a) it is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America;
(b) it has full power, authority and legal right to conduct its
business and operations as currently conducted and to enter into and
perform its obligations under this Agreement and the Deposit Agreement;
(c) the execution, delivery and performance of each of this
Agreement and the Deposit Agreement have been duly authorized by all
necessary corporate action on the part of it and do not require any
stockholder approval, or approval or consent of any trustee or holder of
any indebtedness or obligations of it, and each such document has been
duly executed and delivered by it and constitutes its legal, valid and
binding obligations enforceable against it in accordance with the terms
hereof or thereof except as such enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws
or equitable principles of general application to or affecting the
enforcement of creditors' rights generally (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(d) no authorization, consent or approval of or other action by, and
no notice to or filing with, any United States federal or state
governmental authority or regulatory body is required for the execution,
delivery or performance by it of this Agreement or the Deposit Agreement;
(e) neither the execution, delivery or performance by it of this
Agreement or the Deposit Agreement, nor compliance with the terms and
provisions hereof or thereof, conflicts or will conflict with or results
or will result in a breach or violation of any of the terms, conditions or
provisions of, or will require any consent or approval under, any law,
governmental rule or regulation or the charter documents, as amended, or
bylaws, as
9
amended, of it or any similar instrument binding on it or any order, writ,
injunction or decree of any court or governmental authority against it or
by which it or any of its properties is bound or any indenture, mortgage
or contract or other agreement or instrument to which it is a party or by
which it or any of its properties is bound, or constitutes or will
constitute a default thereunder or results or will result in the
imposition of any lien upon any of its properties; and
(f) there are no pending or, to its knowledge, threatened actions,
suits, investigations or proceedings (whether or not purportedly on behalf
of it) against or affecting it or any of its property before or by any
court or administrative agency which, if adversely determined, (A) would
adversely affect the ability of it to perform its obligations under this
Agreement or the Deposit Agreement or (B) would call into question or
challenge the validity of this Agreement or the Deposit Agreement or the
enforceability hereof or thereof in accordance with the terms hereof or
thereof, nor is the Escrow Agent in default with respect to any order of
any court, governmental authority, arbitration board or administrative
agency so as to adversely affect its ability to perform its obligations
under this Agreement or the Deposit Agreement.
Section 6. REPRESENTATIONS AND WARRANTIES OF THE PAYING AGENT. The
Paying Agent represents and warrants to Northwest, the Investors, the Escrow
Agent and the Pass Through Trustee as follows:
(a) it is a trust company duly organized and validly existing in
good standing under the laws of the Commonwealth of Massachusetts;
(b) it has full power, authority and legal right to conduct its
business and operations as currently conducted and to enter into and
perform its obligations under this Agreement;
(c) the execution, delivery and performance of this Agreement has
been duly authorized by all necessary corporate action on the part of it
and does not require any stockholder approval, or approval or consent of
any trustee or holder of any indebtedness or obligations of it, and such
document has been duly executed and delivered by it and constitutes its
legal, valid and binding obligations enforceable against it in accordance
with the terms hereof except as such enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws
or equitable principles of general application to or affecting the
enforcement of creditors' rights generally (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(d) no authorization, consent or approval of or other action by, and
no notice to or filing with, any United States federal or state
governmental authority or regulatory body is required for the execution,
delivery or performance by it of this Agreement;
(e) neither the execution, delivery or performance by it of this
Agreement, nor compliance with the terms and provisions hereof, conflicts
or will conflict with or results or will result in a breach or violation
of any of the terms, conditions or provisions of, or
10
will require any consent or approval under, any law, governmental rule or
regulation or the charter documents, as amended, or bylaws, as amended, of
it or any similar instrument binding on it or any order, writ, injunction
or decree of any court or governmental authority against it or by which it
or any of its properties is bound or any indenture, mortgage or contract
or other agreement or instrument to which it is a party or by which it or
any of its properties is bound, or constitutes or will constitute a
default thereunder or results or will result in the imposition of any lien
upon any of its properties; and
(f) there are no pending or, to its knowledge, threatened actions,
suits, investigations or proceedings (whether or not purportedly on behalf
of it) against or affecting it or any of its property before or by any
court or administrative agency which, if adversely determined, (A) would
adversely affect the ability of it to perform its obligations under this
Agreement or (B) would call into question or challenge the validity of
this Agreement or the enforceability hereof in accordance with the terms
hereof, nor is the Paying Agent in default with respect to any order of
any court, governmental authority, arbitration board or administrative
agency so as to adversely affect its ability to perform its obligations
under this Agreement.
Section 7. INDEMNIFICATION. Except for actions expressly required of
the Escrow Agent or the Paying Agent hereunder, each of the Escrow Agent and the
Paying Agent shall in all cases be fully justified in failing or refusing to act
hereunder unless it shall have been indemnified by the party requesting such
action in a manner reasonably satisfactory to it against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. In the event Northwest requests any amendment to any
Operative Document (as defined in the Note Purchase Agreement), the Pass Through
Trustee agrees to pay all reasonable fees and expenses (including, without
limitation, fees and disbursements of counsel) of the Escrow Agent and the
Paying Agent in connection therewith.
Section 8. AMENDMENT, ETC. Upon request of the Pass Through Trustee
and approval by an Action of Investors, the Escrow Agent shall enter into an
amendment to this Agreement, so long as such amendment does not adversely affect
the rights or obligations of the Escrow Agent or the Paying Agent, provided that
upon request of the Pass Through Trustee and without any consent of the
Investors, the Escrow Agent shall enter into an amendment to this Agreement for
any of the following purposes:
(a) to correct or supplement any provision in this Agreement which
may be defective or inconsistent with any other provision herein or to
cure any ambiguity or correct any mistake or to modify any other provision
with respect to matters or questions arising under this Agreement,
provided that any such action shall not materially adversely affect the
interests of the Investors; or
(b) to comply with any requirement of the SEC, applicable law, rules
or regulations of any exchange or quotation system on which the
Certificates are listed or any regulatory body; or
11
(c) to evidence and provide for the acceptance of appointment under
this Agreement of a successor Escrow Agent, successor Paying Agent or
successor Pass Through Trustee.
Section 9. NOTICES. Unless otherwise expressly provided herein, any
notice or other communication under this Agreement shall be in writing
(including by facsimile) and shall be deemed to be given and effective upon
receipt thereof (or, if received outside of business hours, on the next opening
of business on a Business Day). All notices shall be sent to (a) in the case of
the Investors, as their respective addresses shall appear in the Register, (b)
in the case of the Escrow Agent, Xxxxx Fargo Bank Northwest, National
Association, 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, XX 00000, Attention:
Corporate Trust Services (Telecopier: (000) 000-0000), (c) in the case of the
Pass Through Trustee, State Street Bank and Trust Company of Connecticut,
National Association, 000 Xxxxxx Xxxxxx, Xxxxxxx Square, Hartford, Connecticut
06103, Attention: Corporate/Muni Department (Telecopier: (000) 000-0000) or (d)
in the case of the Paying Agent, State Street Bank and Trust Company, 0 Xxxxxx
xx Xxxxxxxxx, Xxxxxx, XX 00000, Attention: Corporate Trust Department
(Telecopier: (000) 000-0000), in each case with a copy to Xxxxxxxxx Xxxxxxxx,
Xxx., Xxxxxxxxxx X0000, 0000 Xxxxxxxxx Xxxxx, Xx. Xxxx, XX 00000-0000,
Attention: Treasurer (Telecopier: (000) 000-0000) (or at such other address as
any such party may specify from time to time in a written notice to the other
parties). On or prior to the execution of this Agreement, the Pass Through
Trustee has delivered to the Escrow Agent a certificate containing specimen
signatures of the representatives of the Pass Through Trustee who are authorized
to give notices and instructions with respect to this Agreement. The Escrow
Agent may conclusively rely on such certificate until the Escrow Agent receives
written notice from the Pass Through Trustee to the contrary.
Section 10. TRANSFER. No party hereto shall be entitled to assign or
otherwise transfer this Agreement (or any interest herein) other than (in the
case of the Escrow Agent) to a successor escrow agent under Section 1.7 hereof
or (in the case of the Paying Agent) to a successor paying agent under Section
2.5 hereof, and any purported assignment in violation thereof shall be void.
This Agreement shall be binding upon the parties hereto and their respective
successors and (in the case of the Escrow Agent and the Paying Agent) their
respective permitted assigns.
Section 11. ENTIRE AGREEMENT. This Agreement sets forth all of the
promises, covenants, agreements, conditions and understandings among the Escrow
Agent, the Paying Agent, the Underwriters and the Pass Through Trustee with
respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and undertakings, inducements or conditions, express
or implied, oral or written.
Section 12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 13. WAIVER OF JURY TRIAL RIGHT. EACH OF THE ESCROW AGENT,
THE PAYING AGENT, THE INVESTORS AND THE PASS THROUGH TRUSTEE ACKNOWLEDGES AND
ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.
12
Section 14. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute one instrument.
13
IN WITNESS WHEREOF, the Escrow Agent, the Paying Agent, the
Underwriters and the Pass Through Trustee have caused this Escrow and Paying
Agent Agreement (Class B) to be duly executed as of the day and year first above
written.
XXXXX FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION, as Escrow Agent
By:_______________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not in
its individual capacity, but solely as Pass
Through Trustee for and on behalf of
Northwest Airlines Pass Through Trust
2001-1B
By:_______________________________________
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Paying Agent
By:_______________________________________
Name:
Title:
14
XXXXXXX XXXXX XXXXXX INC.,
X.X. XXXXXX SECURITIES INC.,
CREDIT SUISSE FIRST BOSTON CORPORATION
DUETSCHE BANC ALEX. XXXXX INC.,
XXXXXX XXXXXXX & CO. INCORPORATED
and U.S. BANCORP XXXXX XXXXXXX INC.,
as Underwriters
By: XXXXXXX XXXXX XXXXXX INC.
By:_______________________________________
Name:
Title:
15
EXHIBIT A
Northwest Airlines 2001-1B Escrow Receipt No. ____
This Escrow Receipt evidences a fractional undivided interest in
amounts ("Account Amounts") from time to time deposited into a certain paying
agent account (the "Paying Agent Account") described in the Escrow and Paying
Agent Agreement (Class B) dated as of June 1, 2001 (as amended, modified or
supplemented from time to time, the "Escrow and Paying Agent Agreement") among
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"), Xxxxxxx Xxxxx Xxxxxx, Inc., X.X. Xxxxxx
Securities Inc., Credit Suisse First Boston Corporation, Duetsche Banc Alex.
Xxxxx Inc., Xxxxxx Xxxxxxx & Co. Incorporated and U.S. Bancorp Xxxxx Xxxxxxx
Inc., as Underwriters, State Street Bank and Trust Company of Connecticut,
National Association, as Pass Through Trustee (in such capacity, together with
its successors in such capacity, the "Pass Through Trustee") and State Street
Bank and Trust Company, as paying agent (in such capacity, together with its
successors in such capacity, the "Paying Agent"). Capitalized terms not defined
herein shall have the meanings assigned to them in the Escrow and Paying Agent
Agreement.
This Escrow Receipt is issued under and is subject to the terms,
provisions and conditions of the Escrow and Paying Agent Agreement. By virtue of
its acceptance hereof the holder of this Escrow Receipt assents and agrees to be
bound by the provisions of the Escrow and Paying Agent Agreement and this Escrow
Receipt.
This Escrow Receipt represents a fractional undivided interest in
amounts deposited from time to time in the Paying Agent Account, and grants or
represents no rights, benefits or interests of any kind in respect of any assets
or property other than such amounts. This Escrow Receipt evidences the same
percentage interest in the Account Amounts as the Fractional Undivided Interest
in the Pass Through Trust evidenced by the Certificate to which this Escrow
Receipt is affixed.
All payments and distributions made to Receiptholders in respect of
the Escrow Receipt shall be made only from Account Amounts deposited in the
Paying Agent Account. The holder of this Escrow Receipt, by its acceptance of
this Escrow Receipt, agrees that it will look solely to the Account Amounts for
any payment or distribution due to it pursuant to this Escrow Receipt and that
it will not have any recourse to Northwest, the Pass Through Trustee, the Paying
Agent or the Escrow Agent, except as expressly provided herein or in the Pass
Through Trust Agreement. No Receiptholder of this Escrow Receipt shall have any
right to vote or in any manner otherwise control the operation and management of
the Paying Agent Account, nor shall anything set forth herein, or contained in
the terms of this Escrow Receipt, be construed so as to constitute the
Receiptholders from time to time as partners or members of an association.
This Escrow Receipt may not be assigned or transferred except in
connection with the assignment or transfer of the Certificate to which this
Escrow Receipt is affixed. After payment to the holder hereof of its Escrow
Interest in the Final Distribution, upon the request of the Pass Through
Trustee, the holder hereof will return this Escrow Receipt to the Pass Through
Trustee.
The Paying Agent may treat the person in whose name the Certificate
to which this Escrow Receipt is attached as the owner hereof for all purposes,
and the Paying Agent shall not be affected by any notice to the contrary.
THIS ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Escrow Agent has caused this Escrow Receipt
to be duly executed.
Dated: June 1, 2001
XXXXX FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION, as Escrow Agent
By:_______________________________________
Name:
Title:
2
EXHIBIT B
Withdrawal Certificate
(Class B)
Xxxxx Fargo Bank Northwest, National Association,
as Escrow Agent
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, XX 00000
Attention: Corporate Trust Services
Telecopier: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Escrow and Paying Agent Agreement dated as
of June 1, 2001 (the "Agreement"). We hereby certify to you that the conditions
to the obligations of the undersigned to execute a Participation Agreement
pursuant to the Note Purchase Agreement have been satisfied. Pursuant to Section
1.2(c) of the Agreement, please execute the attached Notice of Purchase
Withdrawal [and Notice of Series D Non-Issuance Withdrawal] and immediately
transmit by facsimile to the Depositary, at (000) 000-0000.
Very truly yours,
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not in
its individual capacity but solely as Pass
Through Trustee
By:_______________________________________
Name:
Title:
Dated: _________, ____
NOTICE OF PURCHASE WITHDRAWAL
ABN AMRO Bank N.V., Chicago Branch
000 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxxxx
Telecopier: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Deposit Agreement (Class B) dated as of
June 1, 2001 (the "Deposit Agreement") between Xxxxx Fargo Bank Northwest,
National Association, as Escrow Agent, and ABN AMRO Bank N.V., Chicago Branch,
as Depositary (the "Depositary").
In accordance with Section 2.3(a)(iii) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of $________ of the Deposit, Account
No. _______.
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposit to ________________, Account No. ___________, Reference: ___________
on __________, _____, upon the telephonic request of a representative of the
Pass Through Trustee.
XXXXX FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION, as Escrow Agent
By:_________________________________
Name:
Title:
Dated: ___________, ____
NOTICE OF SERIES D NON-ISSUANCE WITHDRAWAL
ABN AMRO Bank N.V., Chicago Branch
000 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxxxx
Telecopier: (000) 000-0000
Ladies and Gentlemen:
Reference is made to the Deposit Agreement (Class B) dated as of
June __, 2001 (the "Deposit Agreement") between Xxxxx Fargo Bank Northwest,
National Association, as Escrow Agent, and ABN AMRO Bank N.V., Chicago Branch,
as Depositary (the "Depositary").
In accordance with Section 2.3 of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of each of the
following Deposits: Deposit Account No.[s] _______.
With respect to each such Deposit, the undersigned hereby directs
the Depository to redeposit $[specify amount of each Deposit separately] as new
deposits pursuant to Section 2.4 of the Deposit Agreement.
The undersigned hereby directs the Depository to pay on [specify
payment date] the balance of the above Deposits not to be redeposited pursuant
to 2.4 of the Deposit Agreement, together with accrued interest thereon to such
date of payment to the Paying Agent at [NAME] ABA #_____, Account #______,
Attention: __________, Reference: [Northwest Airlines 2001-1 EETC].
XXXXX FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION, as Escrow Agent
By:_______________________________
Name:
Title:
