FIRST AMENDMENT TO INTERCREDITOR AGREEMENT Dated as of April 4, 2002 AMONG NORTHWEST AIRLINES, INC. AND STATE STREET BANK AND TRUST COMPANY not in its individual capacity but solely as Subordination Agent and Trustee
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EXECUTION COPY
FIRST AMENDMENT TO
INTERCREDITOR AGREEMENT
Dated
as of
April 4, 2002
AMONG
NORTHWEST AIRLINES, INC.
AND
STATE
STREET BANK AND TRUST COMPANY
not in its individual capacity but
solely as Subordination Agent and Trustee
FIRST AMENDMENT TO
INTERCREDITOR AGREEMENT
This FIRST AMENDMENT, dated as of April 4, 2002 (this "Amendment"), among NORTHWEST AIRLINES, INC., a Minnesota corporation ("Northwest"), and STATE STREET BANK AND TRUST COMPANY, not in its individual capacity, but solely as Subordination Agent and trustee under the Intercreditor Agreement referred to below (in such capacity, together with any successor appointed pursuant to Article VIII of such Intercreditor Agreement, the "Subordination Agent").
W I T N E S S E T H:
WHEREAS, the Class A-1 Trustee (as defined herein), the Class A-2 Trustee (as defined herein), the Class B Trustee (as defined herein), the Class C Trustee (as defined herein), the Class A-1 Liquidity Provider (as defined herein), the Class A-2 Liquidity Provider (as defined herein), the Class B Liquidity Provider (as defined herein), the Class C Liquidity Provider (as defined herein) and the Subordination Agent have heretofore entered into the Intercreditor Agreement, dated as of June 1, 2001;
WHEREAS, Section 9.5 of the Intercreditor Agreement provides that, if any Class D Certificates (as defined herein) are issued, the Intercreditor Agreement shall be amended by written agreement of Northwest and the Subordination Agent to give effect to the issuance of any Class D Certificates, among other specified supplements, amendments or modifications;
WHEREAS, Section 9.1(a) of the Intercreditor Agreement provides that such supplements, amendments or modifications, including such addition of the Class D Trustee, may be made without the consent of any Trustee (each as defined herein) so long as they are made in accordance with Section 9.5 of the Intercreditor Agreement;
WHEREAS, Section 9.1(c) of the Intercreditor Agreement provides that so long as Northwest holds or beneficially owns a majority of the Class D Certificates or otherwise controls the actions of the Class D Trustee, any consent or approval of the Class D Trustee or any Class D Certificateholder (as defined herein) otherwise required in accordance with Section 9.1(a) or 9.1(b) shall not be required;
WHEREAS, the Class D Certificates are being issued by the Class D Trust (as defined herein) on the date hereof; and
WHEREAS, the parties hereto desire to amend the Intercreditor Agreement in accordance with Sections 9.1(a), 9.1(c) and 9.5 thereof.
NOW, THEREFORE, in consideration of the mutual promises contained herein the undersigned agree as follows:
Section 1. Definitions. Capitalized terms used but not defined herein shall have the respective meanings set forth or incorporated by reference, and shall be construed and interpreted in the manner described, in the Intercreditor Agreement.
Section 2. Joinder of Class D Trustee. On the terms and subject to the conditions set forth in this Amendment, the Class D Trustee hereby: (i) agrees to be, and by its execution of this Amendment, hereby is, added as a party to the Intercreditor Agreement and bound by the terms thereof, and (ii) agrees to comply with the terms and conditions of the Intercreditor Agreement applicable to it, each as if it were an original signatory thereto;
Section 3. Amendment to Section 1.1 ("Definitions") of the Intercreditor Agreement. Section 1.1 of the Intercreditor Agreement is hereby amended as follows:
(a) The definition of "Stated Interest Rate" is hereby amended by deleting clause (v) thereof and inserting the following text in lieu thereof:
"(v) with respect to the Class D Certificates, 9% per annum."
Section 4. Intercreditor Agreement. Except as amended, supplemented, or otherwise modified under this Amendment, the Intercreditor Agreement remains unchanged and in full force and effect. It is the intention of the parties hereto that this Amendment not constitute a novation of the Intercreditor Agreement.
Section 5. Notices. All notices shall be given and received in accordance with the Intercreditor Agreement.
Section 6. Assignment. Subject to the terms of the Intercreditor Agreement, the terms and provisions of this Amendment shall be binding upon and inure to the benefit of each of the Class D Trustee, the Class A-1 Trustee, the Class A-2 Trustee, the Class B Trustee, the Class C Trustee, the Class A-1 Liquidity Provider, the Class A-2 Liquidity Provider, the Class B Liquidity Provider, the Class C Liquidity Provider, the Subordination Agent and their respective permitted successors and assigns.
Section 7. Effective time. This Amendment shall be deemed to be effective and binding upon each of the Class D Trustee, the Class A-1 Trustee, the Class A-2 Trustee, the Class B Trustee, the Class C Trustee, the Class A-1 Liquidity Provider, the Class A-2 Liquidity Provider, the Class B Liquidity Provider, the Class C Liquidity Provider and the Subordination Agent as of the date first above written upon the execution and presentation of this Amendment by the Class D Trustee to Northwest and the Subordination Agent, and upon the execution and delivery of the same by Northwest and the Subordination Agent in accordance with Section 9.5 of the Intercreditor Agreement.
Section 8. Miscellaneous. Any provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. No term or provision of this Amendment may be changed, waived, discharged or terminated orally, but only by an instrument in writing in accordance with the terms of the Intercreditor Agreement. The section and paragraph headings in this Amendment are for convenience of reference only and shall not modify, define, expand or limit any of the terms or provisions hereof. THIS AMENDMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. This Amendment may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
[Signature pages follow.]
2
IN WITNESS WHEREOF, undersigned have each caused this Amendment to be duly executed by their respective officers thereunto duly authorized, as of the day and year first above written.
| NORTHWEST AIRLINES, INC. | ||||
By: |
Name: Title: |
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STATE STREET BANK AND TRUST COMPANY, not in its individual capacity but solely as Subordination Agent and trustee |
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By: |
Name: Title: |
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