This Trust Supplement No. 1999-1C, dated as of February 16, 1999
(herein called the "Trust Supplement"), by and among Northwest Airlines
Corporation, a Delaware corporation (the "Guarantor"), Northwest Airlines
Holdings Corporation, a Delaware corporation (formerly known as Northwest
Airlines Corporation, "Holdings"), Northwest Airlines, Inc., a Minnesota
corporation (the "Company"), and State Street Bank and Trust Company (the
"Trustee"), to the Pass Through Trust Agreement, dated as of June 3, 1996, by
and among Holdings, the Company and the Trustee, as amended by the Supplemental
Agreement, dated as of November 20, 1998, among the Company, Holdings, the
Guarantor and the Trustee (the "Basic Agreement").
W I T N E S S E T H:
WHEREAS, the Basic Agreement, unlimited as to the aggregate
principal amount of Certificates which may be issued thereunder, has heretofore
been executed and delivered;
WHEREAS, unless otherwise specified herein, capitalized terms used
herein without definition having the respective meanings specified heretofore in
the Basic Agreement;
WHEREAS, the Company intends to finance the acquisition of four
Boeing 747- 400 aircraft either (i) through separate leveraged lease
transactions, in which case the Company will lease such aircraft (collectively,
the "Leased Aircraft") or (ii) through separate secured loan transactions, in
which case the Company will own such aircraft (collectively, the "Owned
Aircraft");
WHEREAS, in the case of each Owned Aircraft, each Owner Trustee,
acting on behalf of its respective Owner Participant, will issue, on a
non-recourse basis, Equipment Notes, among other things, to finance a portion of
the purchase price of such Leased Aircraft purchased or to be purchased by such
Owner Trustee and leased or to be leased to the Company pursuant to the related
Lease;
WHEREAS, in the case of an Owned Aircraft, the Company will issue
Equipment Notes to finance a portion of the purchase price of such Owned
Aircraft;
WHEREAS, pursuant to the terms and conditions of the Basic Agreement
as supplemented by this Trust Supplement (the "Agreement"), the Trustee shall
purchase such Equipment Notes issued by each Owner Trustee or the Company, as
the case may be, having the same interest rate as, and final maturity dates not
later than the final Regular Distribution Date of, the Certificates issued
hereunder and shall hold such Equipment Notes in trust for the benefit of the
Certificateholders;
WHEREAS, the Trustee hereby declares the creation of this Trust (the
"1999-1C Trust" or the "Applicable Trust") for the benefit of the
Certificateholders, and the initial Certificateholders as the grantors of the
1999-1C Trust, by their respective acceptances of the Certificates, join in the
creation of this 1999-1C Trust with the Trustee;
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WHEREAS, all of the conditions and requirements necessary to make
this Trust Supplement, when duly executed and delivered, a valid, binding and
legal instrument in accordance with its terms and for the purposes herein
expressed, have been done, performed and fulfilled, and the execution and
delivery of this Trust Supplement in the form and with the terms hereof have
been in all respects duly authorized; and
WHEREAS, this Trust Supplement is subject to the provisions of the
Trust Indenture Act of 1939, as amended, and shall, to the extent applicable, be
governed by such provisions.
NOW THEREFORE, in consideration of the premises herein, it is agreed
by and among the Guarantor, Holdings, the Company and the Trustee as follows:
ARTICLE I
THE CERTIFICATES
Section 1.01. The Certificates. There is hereby created a series of
Certificates to be issued under the Agreement to be distinguished and known as
"Pass Through Certificates, Series 1999-1C" (hereinafter defined as the "Series
1999-1C Certificates" or the "Applicable Certificates"). Each Series 1999-1C
Certificate represents a Fractional Undivided Interest in the 1999-1C Trust
created hereby.
The terms and conditions applicable to the Series 1999-1C
Certificates are as follows:
(a) The aggregate principal amount of the Series 1999-1C
Certificates that shall be authenticated under the Agreement (except for
Series 1999-1C Certificates authenticated and delivered pursuant to
Sections 3.03, 3.04 and 3.05 of the Basic Agreement) upon their initial
issuance is $74,140,000.
(b) The Cut-off Date is the earlier of (i) January 31, 2000 and (ii)
the day Equipment Notes with respect to all of the Aircraft (as defined
below) have been acquired by the Applicable Trust.
(c) The Regular Distribution Dates with respect to any payment of
Scheduled Payments means each August 1 and February 1, commencing on
August 1, 1999, until payment of all of the Scheduled Payments to be made
under the Equipment Notes has been made.
(d) The Special Distribution Dates are as follows: (i) when used
with respect to the redemption or purchase of any Equipment Notes, the day
(which shall be a Business Day) on which such redemption or purchase is
scheduled to occur pursuant to the terms of the applicable Indenture and
(ii) when used with respect to a Special Payment other than as described
in clause (i) above, 15 days after the last date on which the Trustee must
give notice pursuant to Section 4.02(c) of the Basic Agreement (or the
next Business Day after such 15th day if such date is not a Business Day).
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(e) (i) The Series 1999-1C Certificates shall be in the form
attached hereto as Exhibit A. Each purchaser of Series 1999-1C
Certificates, by its acceptance of such Certificate or its interest
therein, will be deemed to represent and warrant to and for the benefit of
each Owner Participant and the Company that either (x) the assets of an
employee benefit plan subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or of a plan subject to
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code")
or of entities which may be deemed to hold such plans, have not been used
to purchase Series 1999-1C Certificates or (y) one or more prohibited
transaction statutory or administrative exemptions applies such that the
use of such plan assets to purchase and hold such Certificate will not
constitute a non-exempt prohibited transaction under ERISA or Section 4975
of the Code.
(ii) The Series 1999-1C Certificates shall be Book-Entry
Certificates and shall be subject to the conditions set forth in the
Letter of Representations among the Guarantor, Holdings, the Company and
the Clearing Agency (the "Clearing Agency") attached hereto as Exhibit B.
(f) The Scheduled Payments of principal shall be as set forth in
Exhibit C hereto.
(g) The proceeds of the Series 1999-1C Certificates shall be
deposited in the Deposit Accounts and will be used in accordance with the
Escrow Agreement and the Deposit Agreement.
(h) When each Aircraft is delivered, either the Owner Trustee (in
the case of a Leased Aircraft), acting on behalf of its respective Owner
Participant, will issue on a non-recourse basis, or the Company (in the
case of an Owned Aircraft) will issue on a recourse basis, the Equipment
Notes, the proceeds of which shall be used, among other things, to finance
a portion of the purchase price to such Owner Trustee or the Company, as
the case may be, of the following Aircraft:
Expected
Registration Number Aircraft Type Engine Type
------------------- ------------- -----------
671US Boeing 747-400 PW4056
672US Boeing 747-400 PW4056
673US Boeing 747-400 PW4056
674US Boeing 747-400 PW4056
(i) At the Escrow Agent's request under the Escrow Agreement, the
Trustee shall affix the corresponding Escrow Receipt to each Series
1999-1C Certificate. In any event, any transfer or exchange of any Series
1999-1C Certificate shall also effect a transfer or exchange of the
related Escrow Receipt. Prior to the Final Withdrawal Date, no transfer or
exchange of any Series 1999-1C Certificate shall be permitted unless the
corresponding Escrow Receipt is attached thereto and also is so
transferred or exchanged. By acceptance of any Series 1999-1C Certificate
to which an Escrow Receipt is attached,
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each Certificateholder of such a Series 1999-1C Certificate acknowledges
and accepts the restrictions on transfer of the Escrow Receipt set forth
herein and in the Escrow Agreement.
Section 1.02. Intercreditor Agreement. The Series 1999-1C
Certificates are subject to the Intercreditor Agreement, the Deposit Agreement
and the Escrow Agreement.
Section 1.03. Ranking of Series 1999-1C Certificates. The Series
1999-1C Certificates will be subject to the ranking and priority as set forth in
the Intercreditor Agreement.
Section 1.04. Liquidity Facility. Payments of interest on the Series
1999-1C Certificates will be supported by a Liquidity Facility to be provided by
the Liquidity Provider for the benefit of the Certificateholders.
Section 1.05. Ranking of Equipment Notes. The Equipment Notes will
be subject to the ranking and priority as set forth in the related Indenture.
Section 1.06. No Cross-Default or Cross- Collateralization of
Equipment Notes. As set forth in the related Indenture, there will not be any
cross-collateralization provisions or cross-default provisions in respect of the
Equipment Notes.
ARTICLE II
PREDELIVERY FUNDING AND
STATEMENT OF INTENT
Section 2.01. Predelivery Funding. On the date hereof, the proceeds
from the issuance of the Applicable Certificates will be deposited in the
Deposit Accounts on behalf of the Escrow Agent. Pursuant to the terms of the
Deposit Agreement and the Note Purchase Agreement, a portion of the proceeds
from the issuance of the Applicable Certificates will be withdrawn from the
Deposit Account on any date on which an Owner Trustee (in the case of a Leased
Aircraft) or the Company (in the case of an Owned Aircraft) issues Equipment
Notes with respect to an Aircraft.
Section 2.02. Statement of Intent. The parties hereto intend that
the Applicable Trust be classified for U.S. federal income tax purposes as a
grantor trust under Subpart E, Part I of Subchapter J of the Code and not as a
trust or association taxable as a corporation or a partnership. Each of the
parties hereto and each Applicable Certificateholder, or beneficial owner of an
Applicable Certificate, by its acceptance of its Applicable Certificate or a
beneficial interest therein, agrees to treat for all U.S. federal, state and
local income tax purposes (i) the Applicable Trust as a grantor trust and (ii)
Equipment Notes to be issued (or assumed) by an Owner Trust (in the case of a
Leased Aircraft) as indebtedness of such Owner Trust, and Equipment Notes issued
by the Company (in the case of an Owned Aircraft) as indebtedness of the
Company.
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ARTICLE III
DEFINITIONS
Section 3.01. Definitions. (a) For all purposes of the Basic
Agreement as supplemented by this Trust Supplement, the following capitalized
terms have the following meanings:
Aircraft: Means the four Boeing 747-400 aircraft which are expected
to be sold to the Owner Trustee or the Company during the period from
March, 1999 through October, 1999.
Applicable Certificateholder: Means the holder of an Applicable
Certificate.
Class D Certificateholder: Means the holder of a Class D
Certificate.
Class D Certificates: Has the meaning assigned in the Intercreditor
Agreement.
Clearing Agency: Has the meaning specified in Section 1.01(e)
hereof.
Clearing Agency Participant: Means any of the participants in the
Clearing Agency.
Closing Notice: Has the meaning specified in the Note Purchase
Agreement.
Cut-off Date: Has the meaning specified in Section 1.01(b).
Deposit Account: Means an account established under Section 1.2 of
the Deposit Agreement.
Deposit Agreement: Means the Deposit Agreement dated as of February
16, 1999 relating to the Applicable Certificates between the Depositary
and the Escrow Agent, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Deposit Make-Whole Amount: Has the meaning specified in the Note
Purchase Agreement.
Depositary: Means ABN AMRO Bank N.V., acting through its Chicago
branch.
Deposits: Has the meaning specified in the Note Purchase Agreement.
Distribution Date: Means any Regular Distribution Date or Special
Distribution Date.
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Escrow Agent: Means initially, First Security Bank, National
Association, and any replacement or successor therefor appointed in
accordance with the Escrow Agreement.
Escrow Agreement: Means the Escrow and Paying Agent Agreement dated
as of February 16, 1999 relating to the Applicable Certificates, among the
Escrow Agent, the Paying Agent, the Trustee and the Underwriters, as the
same may be amended, supplemented or otherwise modified from time to time
in accordance with its terms.
Escrow Receipt: Means the receipt substantially in the form annexed
to the Escrow Agreement representing a fractional undivided interest in
the funds held in the Paying Agent Account (as defined in the Escrow
Agreement)..
Final Withdrawal: With respect to the Escrow Agreement, has the
meaning set forth in Section 1.2 thereof.
Final Withdrawal Date: Means the date on which the Final Withdrawal
occurs.
Intercreditor Agreement: Means the Intercreditor Agreement, dated as
of the date hereof, by and among the Trustee, the Other Trustees, the
Liquidity Providers named therein and State Street Bank and Trust Company,
as Subordination Agent.
Leased Aircraft: Has the meaning specified in the recitals hereto.
Liquidity Facility: Has the meaning specified in the Note Purchase
Agreement.
Note Documents: With respect to any Equipment Note, means the Note
Purchase Agreement, the related Indenture, the related Participation
Agreement, and, if the related Aircraft is leased to the Company, the
related Lease.
Note Purchase Agreement: Means the Note Purchase Agreement, dated as
of the date hereof, among the Company, the Trustee, the Other Trustees,
State Street Bank and Trust Company, as Subordination Agent, the Escrow
Agent and the Paying Agent.
Notice of Purchase Withdrawal: Has the meaning specified in the Note
Purchase Agreement.
Other Agreements: Means the Basic Agreement as supplemented by Trust
Supplement No. 1999-1A (the "1999-1A Trust Supplement") dated the date
hereof relating to Xxxxxxxxx Xxxxxxxx 0000-0X Xxxx Through Trust and by
Trust Supplement No. 1999-1B (the "1999-1B Trust Supplement") dated the
date hereof relating to the Northwest Airlines 1999-1B Pass Through Trust.
Other Trustees: Means the trustee under the Other Agreements, and
any successor or other trustee appointed as provided therein.
Owned Aircraft: Has the meaning specified in the recitals hereto.
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Participation Agreement: Has the meaning specified in the Note
Purchase Agreement.
Paying Agent: Means State Street Bank and Trust Company.
Pool Balance: Means, as of any date, (i) the original aggregate face
amount of the Applicable Certificates less (ii) the aggregate amount of
all payments made in respect of such Applicable Certificates or in respect
of Deposits relating to the Applicable Trust other than payments made in
respect of interest or premium thereon or reimbursement of any costs or
expenses incurred in connection therewith. The Pool Balance as of any
Distribution Date will be computed after giving effect to any special
distribution with respect to unused Deposits, payment of principal of the
Equipment Notes or payment with respect to other Trust Property and the
distribution thereof to be made on that date.
Prospectus Supplement: Means the Prospectus Supplement dated
February 4, 1999, relating to the offering of the Class A Certificates,
the Class B Certificates and the Class C Certificates (each as defined in
the Intercreditor Agreement).
Pool Factor: Means, as of any Distribution Date, the quotient
(rounded to the seventh decimal place) computed by dividing (i) the Pool
Balance by (ii) the original aggregate face amount of the Applicable
Certificates. The Pool Factor as of any Distribution Date shall be
computed after giving effect to any special distribution with respect to
unused Deposits, payment of principal of the Equipment Notes or other
Trust Property and the distribution thereof to be made on that date.
Record Date: Means the date preceding any Distribution Date on which
the Applicable Certificateholders are determined for purposes of the
distribution which will occur on such Distribution Date.
Scheduled Closing Date: Has the meaning specified in the Note
Purchase Agreement.
Special Payment: Means any payment (other than a Scheduled Payment)
in respect of, or any proceeds of, any Equipment Note.
Special Redemption Premium: Means the Deposit Make-Whole Amount
payable by the Company in respect of the Final Withdrawal pursuant to the
Note Purchase Agreement.
Trust Property: Means (i) the Equipment Notes held as the property
of the Trust and, subject to the Intercreditor Agreement, all monies at
any time paid thereon and all monies due and to become due thereunder,
(ii) the rights of the Trust under the Escrow Agreement to request the
Escrow Agent to withdraw from the Deposit Accounts funds sufficient to
enable the Trust to purchase Equipment Notes on the delivery of an
Aircraft, (iii) funds from time to time deposited in the Certificate
Account and the Special Payments Account, and (iv) all rights of the Trust
and the Trustee, on behalf of the Trust, under the Intercreditor
Agreement, the Note Purchase Agreement and the Liquidity
8
Facility, including, without limitation, all rights to receive certain
payments thereunder, and all monies paid to the Trustee on behalf of the
Trust pursuant to the Intercreditor Agreement or the Liquidity Facility.
Trusts: Means, collectively, the Northwest Airlines 1999 Pass
Through Trusts to be formed pursuant to the Basic Agreement, as
supplemented by this Trust Supplement and the Other Agreements.
Underwriters: Means the several Underwriters named in and who are
parties to the Underwriting Agreement.
Underwriting Agreement: Means the Underwriting Agreement dated as of
February 4, 1999 by and among the Company, the Guarantor, Xxxxxx Xxxxxxx &
Co. Incorporated, Credit Suisse First Boston Corporation, ABN AMRO
Incorporated, Chase Securities Inc. and Xxxxxxx Xxxxx Xxxxxx Inc.
ARTICLE IV
THE TRUSTEE
Section 4.01. Delivery of Documents; Delivery Dates. (a) The Trustee
is hereby directed (i) to execute and deliver the Intercreditor Agreement, the
Escrow Agreement and the Note Purchase Agreement, each in the form delivered to
the Trustee by the Company and (ii) subject to the respective terms thereof, to
perform its obligations thereunder. Upon request of the Company and the
satisfaction or waiver of the closing conditions specified in the Underwriting
Agreement, the Trustee shall execute, deliver, authenticate, issue and sell
Applicable Certificates in authorized denominations equaling in the aggregate
the amount set forth, with respect to the Applicable Trust, in Schedule I to the
Underwriting Agreement evidencing the entire ownership interest in the Trust,
which amount equals the maximum aggregate principal amount of Equipment Notes
which may be purchased by the Trustee pursuant to the Note Purchase Agreement.
Except as provided in Sections 3.03, 3.04, 3.05 and 3.09 of the Basic Agreement,
the Trustee shall not execute, authenticate or deliver Applicable Certificates
in excess of the aggregate amount specified in this paragraph.
(b) On or after the Issuance Date the Company may deliver from time
to time to the Trustee a Closing Notice relating to one or more Equipment Notes.
After receipt of a Closing Notice and in any case no later than two Business
Days prior to a Scheduled Closing Date as to which such Closing Notice relates
(the "Applicable Delivery Date"), the Trustee shall (as and when specified in
the Closing Notice) instruct the Escrow Agent to provide a Notice of Purchase
Withdrawal to the Depositary requesting (A) the withdrawal of one or more
Deposits on the Applicable Delivery Date in accordance with and to the extent
permitted by the terms of the Escrow Agreement and the Deposit Agreement and (B)
the payment of all, or a portion, of such Deposit or Deposits in an amount equal
in the aggregate to the purchase price of such Equipment Notes to or on behalf
of the Owner Trustee or the Company, as the case may be, issuing such Equipment
Notes, all as shall be described in the Closing Notice. The Trustee shall (as
and when specified in such Closing Notice), subject to the conditions set forth
in Section 3 of the Note Purchase Agreement, enter into and perform its
obligations under the Participation
9
Agreement specified in such Closing Notice (the "Applicable Participation
Agreement") and cause such certificates, documents and legal opinions relating
to the Trustee to be duly delivered as required by the Applicable Participation
Agreement. If at any time prior to the Applicable Delivery Date, the Trustee
receives a notice of postponement pursuant to Section 2(e) or 2(f) of the Note
Purchase Agreement, then the Trustee shall give the Depositary (with a copy to
the Escrow Agent) a notice of cancellation of such Notice of Purchase Withdrawal
relating to such Deposit or Deposits on such Applicable Delivery Date. Upon
satisfaction of the conditions specified in the Note Purchase Agreement and the
Applicable Participation Agreement, the Trustee shall purchase the applicable
Equipment Notes with the proceeds of the withdrawals of one or more Deposits
made on the Applicable Delivery Date in accordance with the terms of the Deposit
Agreement and the Escrow Agreement. The purchase price of such Equipment Notes
shall equal the principal amount of such Equipment Notes. Amounts withdrawn from
such Deposit or Deposits in excess of the purchase price of the Equipment Notes
or to the extent not applied on the Applicable Delivery Date to the purchase
price of the Equipment Notes, shall be re-deposited by the Trustee with the
Depositary on the Applicable Delivery Date in accordance with the terms of the
Deposit Agreement.
Section 4.02. Withdrawal of Deposits. If any Deposits remain
outstanding on the Business Day next succeeding the Cut-off Date, (i) the
Trustee shall give the Escrow Agent notice that the Trustee's obligation to
purchase Equipment Notes under the Note Purchase Agreement has terminated and
instruct the Escrow Agent to provide a notice of Final Withdrawal to the
Depositary substantially in the form of Exhibit B to the Deposit Agreement (the
"Final Withdrawal Notice") and (ii) the Trustee will make a demand upon the
Company for an amount equal to the Special Redemption Premium, such payment to
be made on the Final Withdrawal Date.
Section 4.03. The Trustee. (a) Subject to Section 4.04 of this Trust
Supplement and Section 7.14 of the Basic Agreement, the Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Trust Supplement, the Deposit Agreement or the Escrow
Agreement or the due execution hereof or thereof by the Company or the other
parties thereto (other than the Trustee), or for or in respect of the recitals
and statements contained herein or therein, all of which recitals and statements
are made solely by the Company.
(b) Except as herein otherwise provided, no duties, responsibilities
or liabilities are assumed, or shall be construed to be assumed by the Trustee
by reason of this Trust Supplement other than as set forth in the Basic
Agreement, and this Trust Supplement is executed and accepted on behalf of the
Trustee, subject to all the terms and conditions set forth in the Basic
Agreement, upon the effectiveness thereof, as fully to all intents as if the
same were herein set forth at length.
Section 4.04. Representations and Warranties of the Trustee. The
Trustee hereby represents and warrants that:
(a) the Trustee has full power, authority and legal right to
execute, deliver and perform this Trust Supplement, the
Intercreditor Agreement, the Escrow Agreement and the Note Documents
to which it is a party and has taken all necessary action to
authorize the execution, delivery and performance by it of
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this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement and the Note Documents to which it is a party;
(b) the execution, delivery and performance by the Trustee of
this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement and the Note Documents to which it is a party (i) will not
violate any provision of any United States federal law or the law of
the state of the United States where it is located governing the
banking and trust powers of the Trustee or any order, writ,
judgment, or decree of any court, arbitrator or governmental
authority applicable to the Trustee or any of its assets, (ii) will
not violate any provision of the articles of association or by-laws
of the Trustee, and (iii) will not violate any provision of, or
constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of any lien on any
properties included in the Trust Property pursuant to the provisions
of any mortgage, indenture, contract, agreement or other undertaking
to which it is a party, which violation, default or lien could
reasonably be expected to have an adverse effect on the Trustee's
performance or ability to perform its duties hereunder or thereunder
or on the transactions contemplated herein or therein;
(c) the execution, delivery and performance by the Trustee of
this Trust Supplement, the Intercreditor Agreement, the Escrow
Agreement and the Note Documents to which it is a party will not
require the authorization, consent, or approval of, the giving of
notice to, the filing or registration with, or the taking of any
other action in respect of, any governmental authority or agency of
the United States or the state of the United States where it is
located regulating the banking and corporate trust activities of the
Trustee; and
(d) this Trust Supplement, the Intercreditor Agreement, the
Escrow Agreement and the Note Documents to which it is a party have
been, or will be, as applicable, duly executed and delivered by the
Trustee and constitute, or will constitute, as applicable, the
legal, valid and binding agreements of the Trustee, enforceable
against it in accordance with their respective terms; provided,
however, that enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and (ii) general
principles of equity.
Section 4.05. Trustee Liens. The Trustee in its individual capacity
agrees, in addition to the agreements contained in Section 7.16 of the Basic
Agreement, that it will, at its own cost and expense, promptly take any action
as may be necessary to duly discharge and satisfy in full any Trustee's liens on
or with respect to the Trust Property which is attributable to the Trustee in
its individual capacity and which is unrelated to the transactions contemplated
by the Intercreditor Agreement or the Note Purchase Agreement.
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ARTICLE V
SUPPLEMENTAL AGREEMENT
Section 5.01. Supplemental Agreements Without Consent of
Certificateholders.
(a) Under the terms of, and subject to the limitations contained in,
Section 9.01 of the Basic Agreement, the Company may (but will not be required
to), and the Trustee (subject to Section 9.03 of the Basic Agreement) shall, at
the Company's request, at any time and from time to time, enter into one or more
agreements supplemental to the Escrow Agreement, the Note Purchase Agreement or
the Deposit Agreement, for any of the purposes set forth in clauses (1) through
(7) of such Section 9.01, except that (a) clause (3) of such Section 9.01 shall
be deemed to include the Company's rights and powers conferred by the Note
Purchase Agreement and (b) clause (4) of such Section 9.01 shall be deemed to
include corrections or supplements to provisions of the Escrow Agreement or the
Deposit Agreement which may be defective or inconsistent with any other
provision of this Agreement or contained in any agreement referred to in such
clause (4) and the curing of any ambiguity or the modification of any other
provision with respect to matters or questions arising under the Escrow
Agreement or the Deposit Agreement.
(b) If Class D Certificates are issued, the Company, the Guarantor,
Holdings and the Trustee, without the consent of the Applicable
Certificateholders, may enter into an agreement supplemental to this Trust
Supplement whereby Class D Certificateholders shall be granted purchase rights
similiar to those set forth in Section 7.01 hereof.
(c) Any supplemental agreement entered into pursuant to Sections
5.01(a) and (b) may not adversely affect the status of the Trust for U.S.
federal income tax purposes, as either (i) a grantor trust under Subpart E, Part
I of Subchapter J of Chapter 1 of Subtitle A of the Code or (ii) subject to no
resulting adverse Massachusetts state or local tax consequences, a partnership.
Section 5.02. Supplement Agreements with Consent of
Certificateholders. The provisions of Section 9.02 of the Basic Agreement shall
apply to agreements or amendments for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Escrow
Agreement, the Deposit Agreement or the Note Purchase Agreement to the extent
applicable to the Certificateholders approving such agreement or amendment or
modifying in any manner the rights and obligations of such Certificateholders
under the Escrow Agreement, the Deposit Agreement or the Note Purchase
Agreement; provided that the provisions of Section 9.02(1) of the Basic
Agreement shall be deemed to include reductions in any manner of, or delay in
the timing of, any receipt by the Certificateholders of payments upon the
Deposits.
ARTICLE VI
DISTRIBUTIONS; STATEMENT TO CERTIFICATEHOLDERS
Section 6.01. Additions to Article IV of the Basic Agreement. In
addition to the provisions of Article IV of the Basic Agreement, the following
provisions shall apply to the Trust:
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(a) Upon the payment of Special Redemption Premium to the Trustee
under the Note Purchase Agreement, the Trustee, upon receipt thereof,
shall immediately deposit the aggregate amount of such Special Redemption
Premium in the Special Payments account;
(b) The distribution of amounts of Special Redemption Premium as
provided for in Section 4.02(b) of the Basic Agreement shall be on the
Special Distribution Date with respect to such Special Payment or as soon
thereafter as the Trustee has confirmed receipt of the related Special
Redemption Premium;
(c) In the event of the payment of a Special Redemption Premium by
the Company to the Trustee under the Note Purchase Agreement, the notice
provided for in Section 4.02(c) of the Basic Agreement shall be mailed,
together with the notice by the Paying Agent under Section 2.6 of the
Escrow Agreement, not less that 15 days prior to the Special Distribution
Date for such amount, which Special Distribution Date shall be the Final
Withdrawal Date: and
(d) The last sentence of the first paragraph of Section 4.02(c) of
the Basic Agreement shall apply equally if the amount of Special
Redemption Premium, if any, has not been calculated at the time the
Trustee mails notice of a Special Payment.
Section 6.02. Statements to Applicable Certificateholders. (a) On
each Distribution Date, the Trustee will include with each distribution to
Applicable Certificateholders of a Scheduled Payment or Special Payment, as the
case may be, a statement setting forth the information provided below (in the
case of a Special Payment, including any Special Redemption Premium, reflecting
in part the information provided by the Paying Agent under the Escrow
Agreement). Such statement shall set forth (per $1,000 face amount Applicable
Certificate as to (ii), (iii), (iv) and (v) below) the following information:
(i) the aggregate amount of funds distributed on such Distribution
Date under the Agreement and under the Escrow Agreement, indicating the
amount allocable to each source;
(ii) the amount of such distribution under the Agreement allocable
to principal and the amount allocable to premium (including the Special
Redemption Premium), if any;
(iii) the amount of such distribution under the Agreement allocable
to interest;
(iv) the amount of such distribution under the Escrow Agreement
allocable to interest;
(v) the amount of such distribution under the Escrow Agreement
allocable to Deposits; and
(vi) the Pool Balance and the Pool Factor.
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With respect to the Applicable Certificates registered in the name
of a Clearing Agency, on the Record Date prior to each Distribution Date, the
Trustee will request from such Clearing Agency a securities position listing
setting forth the names of all Clearing Agency Participants reflected on such
Clearing Agency's books as holding interests in the Applicable Certificates on
such Record Date. On each Distribution Date, the Trustee will mail to each such
Clearing Agency Participant the statement described above and will make
available additional copies as requested by such Clearing Agency Participant for
forwarding to holders of interests in the Applicable Certificates.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the Trustee
shall furnish to each Person who at any time during such calendar year was an
Applicable Certificateholder of record a statement containing the sum of the
amounts determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and
(a)(v) above for such calendar year or, in the event such Person was an
Applicable Certificateholder of record during a portion of such calendar year,
for such portion of such year, and such other items as are readily available to
the Trustee and which an Applicable Certificateholder shall reasonably request
as necessary for the purpose of such Applicable Certificateholder's preparation
of its federal income tax returns. Such statement and such other items shall be
prepared on the basis of information supplied to the Trustee by the Clearing
Agency Participants and shall be delivered by the Trustee to such Clearing
Agency Participants to be available for forwarding by such Clearing Agency
Participants to the holders of interests in the Applicable Certificates in the
manner described in Section 6.02(a) hereof.
(c) Promptly following (i) the Cut-off Date, if there has been any
change in the information set forth in clauses (x) and (y) below from that set
forth in page S-36 of the Prospectus Supplement, and (ii) any early redemption
or purchase of, or any default in the payment of principal or interest in
respect of, any of the Equipment Notes held in the Applicable Trust, or any
Final Withdrawal, the Trustee shall furnish to Applicable Certificateholders of
record on such date a statement setting forth (x) the expected Pool Factors for
each subsequent Regular Distribution Date following the Cut-off Date and (y) the
expected principal distribution schedule of the Equipment Notes, in the
aggregate, held as Trust Property at the date of such notice. With respect to
the Applicable Certificates registered in the name of a Clearing Agency, on the
Cut-off Date, the Trustee will request from such Clearing Agency a securities
position listing setting forth the names of all Clearing Agency Participants
reflected on such Clearing Agency's books as holding interests in the Applicable
Certificates on such date. The Trustee will mail to each such Clearing Agency
Participant the statement described above and will make available additional
copies as requested by such Clearing Agency Participant for forwarding to
holders of interests in the Applicable Certificates.
(d) This Section 6.02 supersedes and replaces Section 4.03 of the
Basic Agreement.
14
ARTICLE VII
DEFAULT
Section 7.01. Purchase Rights of Certificateholders. (a) At any time
after the occurrence and during the continuance of a Triggering Event, each
Applicable Certificateholder shall have the right (which shall not expire upon
any purchase of the Class A Certificates by the Class B Certificateholders) to
purchase, for the purchase price set forth in Section 7.01 of the Other
Agreement relating to the Class A Certificates, all, but not less than all, of
the Class A Certificates and the Class B Certificates upon ten days' written
notice to the Class A Trustee, the Class B Trustee and each other Applicable
Certificateholder, provided that (i) if prior to the end of such ten-day period
any other Applicable Certificateholder notifies such purchasing Applicable
Certificateholder that such other Applicable Certificateholder wants to
participate in such purchase, then such other Applicable Certificateholder may
join with the purchasing Applicable Certificateholder to purchase all, but not
less than all, of the Class A Certificates and the Class B Certificates pro rata
based on the Fractional Undivided Interest in the Applicable Trust held by each
such Applicable Certificateholder and (ii) if prior to the end of such ten-day
period any other Applicable Certificateholder fails to notify the purchasing
Applicable Certificateholder of such other Applicable Certificateholder's desire
to participate in such a purchase, then such other Applicable Certificateholder
shall lose its right to purchase the Class A Certificates and the Class B
Certificates pursuant to this Section 7.01(a).
(b) As used in this Section 7.01, the terms "Class A Certificate",
"Class A Trustee", "Class B Certificate", "Class B Trustee" and "Class B
Certificateholder" shall have the respective meanings assigned to such terms in
the Intercreditor Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Basic Agreement Ratified. Except and so far as herein
expressly provided, all of the provisions, terms and conditions of the Basic
Agreement are in all respects ratified and confirmed; and the Basic Agreement
and this Trust Supplement shall be taken, read and construed as one and the same
instrument.
Section 8.02. GOVERNING LAW. THIS TRUST SUPPLEMENT AND THE SERIES
1999-1C CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
Section 8.03. Execution in Counterparts. This Trust Supplement may
be executed in any number of counterparts, each of which shall be an original,
but such counterparts shall together constitute but one and the same instrument.
15
IN WITNESS WHEREOF, the Guarantor, Holdings, the Company and the
Trustee have caused this Trust Supplement to be duly executed by their
respective officers thereto duly authorized, as of the day and year first
written above.
NORTHWEST AIRLINES, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
NORTHWEST AIRLINES CORPORATION,
as Guarantor
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
NORTHWEST AIRLINES HOLDINGS
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
EXHIBIT A
FORM OF CERTIFICATE
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch the registered owner hereof,
Cede & Co., has an interest herein.
Any person acquiring this Certificate by its acceptance hereof or
its interest herein, will be deemed to represent and warrant to and for the
benefit of each Owner Participant and the Company that either (i) the assets of
an employee benefit plan subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or of a plan subject to Section 4975
of the Internal Revenue Code of 1986, as amended (the "Code") or of entities
which may be deemed to hold such plans, have not been used to purchase this
Certificate or (ii) one or more prohibited transaction statutory or
administrative exemptions applies such that the use of such plan assets to
purchase and hold this Certificate will not constitute a non-exempt prohibited
transaction under ERISA or Section 4975 of the Code.
XXXXXXXXX XXXXXXXX 0000-0X XXXX THROUGH TRUST
Pass Through
Certificate, Series 1999-1C
Issuance Date: February 16, 1999
Final Legal Distribution Date: August 1, 2015
Evidencing A Fractional undivided interest In the Northwest Airlines
1999-1C Pass Through Trust, The Property Of Which Includes Certain
Equipment Notes Each Secured By An Aircraft Leased To Or Owned By
Northwest Airlines, Inc.
Certificate
No. _____ $________ Fractional undivided interest representing 0.__%
of the Trust per $1,000 of Reference Principal Amount
THIS CERTIFIES THAT _______________, for value received, is the
registered owner of a Fractional Undivided Interest in the amount of $_______
(the "Reference Principal Amount") in the Northwest Airlines 1999-1C Pass
Through Trust (the "Trust") created by State Street Bank and Trust Company, as
trustee (the "Trustee"), pursuant to a Pass Through Trust Agreement, dated as of
June 3, 1996 (as amended or supplemented, the "Basic Agreement"), by and among
the Trustee, Northwest Airlines Holdings Corporation, a Delaware corporation
(formerly known as Northwest Airlines Corporation, "Holdings"), and Northwest
Airlines, Inc., a
2
Minnesota corporation (the "Company"), as amended by the Supplemental Agreement,
dated as of November 20, 1998 among the Company, Holdings, Northwest Airlines
Corporation, a Delaware corporation (the "Guarantor") and the Trustee, as
supplemented by Trust Supplement No. 1999-1C thereto, dated as of February 16,
1999 (collectively, the "Agreement"), by and among the Trustee, the Guarantor,
Holdings and the Company, a summary of certain of the pertinent provisions of
which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the
Agreement. This Certificate is one of the duly authorized Certificates
designated as "Pass Through Certificates, Series 1999-1C" (herein called the
"Certificates"). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement and the Intercreditor Agreement, to
which Agreement the Certificateholder of this Certificate by virtue of the
acceptance hereof assents and by which such Certificateholder is bound. The
property of the Trust includes certain Equipment Notes and all rights of the
Trust to receive payments under the Intercreditor Agreement and the Liquidity
Facility (the "Trust Property"). Each issue of the Equipment Notes is secured by
a security interest in the Aircraft leased to or owned by the Company.
Each of the Certificates represents a Fractional Undivided Interest
in the Trust and the Trust Property and has no rights, benefits or interest in
respect of any other separate trust established pursuant to the terms of the
Basic Agreement for any other series of certificates issued pursuant thereto.
Subject to and in accordance with the terms of the Agreement and the
Intercreditor Agreement, from funds then available to the Trustee, there will be
distributed on each February 1 and August 1 (a "Regular Distribution Date"),
commencing August 1, 1999 to the Person in whose name this Certificate is
registered at the close of business on the 15th day preceding the Regular
Distribution Date, an amount in respect of the Scheduled Payments on the
Equipment Notes due on such Regular Distribution Date, the receipt of which has
been confirmed by the Trustee, equal to the product of the percentage interest
in the Trust evidenced by this Certificate and an amount equal to the sum of
such Scheduled Payments. Subject to and in accordance with the terms of the
Agreement and the Intercreditor Agreement, in the event that Special Payments on
the Equipment Notes are received by the Trustee, from funds then available to
the Trustee, there shall be distributed on the applicable Special Distribution
Date, to the Person in whose name this Certificate is registered at the close of
business on the 15th day preceding the Special Distribution Date, an amount in
respect of such Special Payments on the Equipment Notes, the receipt of which
has been confirmed by the Trustee, equal to the product of the percentage
interest in the Trust evidenced by this Certificate and an amount equal to the
sum of such Special Payments so received. If a Regular Distribution Date or
Special Distribution Date is not a Business Day, distribution shall be made on
the immediately following Business Day with the same force and effect as if made
on such Regular Distribution Date or Special Distribution Date and no interest
shall accrue during the intervening period. The Trustee shall mail notice of
each Special Payment and the Special Distribution Date therefor to the
Certificateholder of this Certificate.
Distributions on this Certificate will be made by the Trustee by
check mailed to the Person entitled thereto, without the presentation or
surrender of this Certificate or the making of any notation hereon, except that
with respect to Certificates registered on the Record Date in the name of a
Clearing Agency (or its nominee), such distribution shall be made by wire
transfer.
3
Except as otherwise provided in the Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after notice mailed by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency of the Trustee specified
in such notice.
The Certificates do not represent an obligation of, or an obligation
guaranteed by, or an interest in, the Guarantor, Holdings, the Company or the
Trustee or any affiliate thereof. The Certificates are limited in right or
payment, all as more specifically set forth herein and in the Agreement. All
payments or distributions made to Certificateholders under the Agreement shall
be made only from the Trust Property and only to the extent that the Trustee
shall have sufficient income or proceeds from the Trust Property to make such
payments in accordance with the terms of the Agreement. Each Certificateholder
of this Certificate, by its acceptance hereof, agrees that it will look solely
to the income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby. A copy of the Agreement may
be examined during normal business hours at the principal office of the Trustee,
and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Guarantor, Holdings or the Company and the rights of the Certificateholders
under the Agreement at any time by the Guarantor, Holdings, the Company and the
Trustee with the consent of the Certificateholders holding Certificates
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Trust. Any such consent by the Certificateholder of this
Certificate shall be conclusive and binding on such Certificateholder and upon
all future Certificateholders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Certificateholders of any of the Certificates.
As provided in the Agreement and subject to certain limitations set
forth, the transfer of this Certificate is registrable in the Register upon
surrender of this Certificate for registration of transfer at the offices or
agencies maintained by the Trustee in its capacity as Registrar, or by any
successor Registrar, duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Registrar duly executed by
the Certificateholder hereof or such Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate Fractional Undivided Interest in the
Trust will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in minimum denominations of $1,000 Fractional Undivided
Interests and integral multiples thereof. As provided in the Agreement and
subject to certain limitations therein set forth, the Certificates are
exchangeable for new Certificates of authorized denominations evidencing the
same
4
aggregate Fractional Undivided Interest in the Trust, as requested by the
Certificateholder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee shall require payment of a sum sufficient to cover
any tax or governmental charge payable in connection therewith.
Each Certificateholder or beneficial owner of a Certificate, by its
acceptance of this Certificate or a beneficial interest herein, agrees to treat
the Trust as a grantor trust for all U.S. federal, state and local income tax
purposes.
The Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Trustee, the Registrar, nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and
the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS PROVISIONS OF THE STATE OF NEW YORK.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
XXXXXXXXX XXXXXXXX 0000-0X
XXXX THROUGH TRUST
By: STATE STREET BANK AND
TRUST COMPANY, as
Trustee
By:
-------------------------
Name:
Title:
5
FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
------------------------
Name:
Title:
EXHIBIT B
DTC Letter of Representations
EXHIBIT C
REGULAR DISTRIBUTION DATES
AND
SCHEDULED PAYMENTS
Regular Distribution Date Scheduled Payment
------------------------- -----------------
August 1, 1999 $ 70,000.00
February 1, 2000 4,638,132.40
August 1, 2000 0.00
February 1, 2001 557,100.00
February 1, 2002 1,423,502.46
February 1, 2003 2,005,665.14
February 1, 2004 2,234,318.65
February 1, 2005 6,503,983.77
February 1, 2006 169,409.68
February 1, 2007 12,343,977.17
February 1, 2008 5,540,634.20
February 1, 2009 1,584,866.62
February 1, 2010 4,780,180.40
February 1, 2011 4,621,865.62
February 1, 2012 0.00
August 1, 2013 24,957,437.71
February 1, 2014 2,708,926.18
