EXPURGATED Confidential Treatment
Requested By Northwest
Airlines Corporation
EXHIBIT 10.4
Amendment No. 5
to the A330 Purchase Agreement
dated as of February 10, 1989
between
AVSA, S.A.R.L.
and
NORTHWEST AIRCRAFT INC.
This Amendment No. 5 (hereinafter referred to as the "Amendment") is entered
into as of March 29, 1996, between AVSA, S.A.R.L., a societe a responsabilite
limitee organized and existing under the laws of the Republic of France, having
its registered office located at 0, Xxxx-Xxxxx Xxxxxxx Xxxxxxxx, 00000 Xxxxxxx,
Xxxxxx (hereinafter referred to as the "Seller"), and NORTHWEST AIRCRAFT INC., a
corporation organized and existing under the laws of the State of Delaware,
United States of America, having its principal corporate offices located at 0000
Xxxx Xxx Xxxxxxx, Xxxxx, Xxxxxxxxx 00000, XXX (hereinafter referred to as the
"Buyer").
All capitalized terms not otherwise defined herein shall have the meanings
provided for in the Agreement (as defined hereinbelow). The terms "herein,"
"hereof" and "hereunder" and words of similar import refer to this Amendment.
Both parties agree that this Amendment shall constitute an integral,
nonseverable part of the Agreement and be governed by its provisions, except
that if the Agreement and this Amendment have specific provisions that are
inconsistent, the specific provisions contained in this Amendment shall govern.
WITNESSETH
WHEREAS, the Buyer and the Seller entered into an A330 Purchase Agreement, dated
as of February 10, 1989, relating to the sale by the Seller and the purchase by
the Buyer of certain Airbus Industrie A330 aircraft (the "Aircraft"), which
agreement, as previously amended and supplemented by Amendment No. 1, dated May
31, 1989, Amendment No. 2, dated June 5, 1992, Amendment No. 3, dated December
7, 1992, and Amendment No. 4, dated August 5, 1993, together with all Exhibits,
Appendices and Letter Agreements attached thereto, is hereinafter called the
"Agreement";
NWA-A330
WHEREAS, the Buyer and the Seller have agreed to provide for revisions to the
Agreement, by way of this Amendment;
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. DELIVERY SCHEDULE
The delivery schedule in Subclause 9.1.1 of the Agreement, as amended by
Amendment Xx. 0, Xxxxxxxxx Xx. 0 and Amendment No. 4 to the Agreement, is
superseded and replaced by the following schedule for Aircraft Nos. 1
through 16:
QUOTE
Aircraft No. Month of Delivery
------------ -----------------
Aircraft No. 1 {CONFIDENTIAL
Aircraft Xx. 0 XXXXXXXX
Xxxxxxxx Xx. 0 OMITTED
Aircraft No. 4 AND FILED
Aircraft Xx. 0 XXXXXXXXXX
Xxxxxxxx Xx. 0 WITH THE
Aircraft Xx. 0 XXXXXXXXXX
Xxxxxxxx Xx. 0 XXX
Xxxxxxxx Xx. 0 EXCHANGE
Aircraft Xx. 00 XXXXXXXXXX
Xxxxxxxx Xx. 00 PURSUANT
Aircraft No. 12 TO A
Aircraft Xx. 00 XXXXXXX
Xxxxxxxx Xx. 00 FOR
Aircraft Xx. 00 XXXXXXXXXXXX
Xxxxxxxx Xx. 00 TREATMENT}
UNQUOTE
2. CONVERSION RIGHTS
2.1 In consideration of the A320 Purchase Agreement dated as of March 29,
1996, between the Seller and Northwest Airlines, Inc. ("Northwest") (the
"A320 Agreement") for the sale and purchase of twenty (20) Airbus A320
aircraft (the "A320 Aircraft"), the Seller grants the Buyer and Northwest
the right to convert any or all of the Aircraft into any Airbus aircraft
model manufactured by the Manufacturer (the "Converted Aircraft") upon
the terms and conditions of this Paragraph 2 (the "Conversion Right").
The Conversion Right shall:
NWA-A330 Amd. 5-2
(i) be made on a dollar-for-dollar gross airframe price basis;
(ii) be subject to {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT}. AVSA agrees (a) {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} and (b) {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT}.
It is further agreed that {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}.
2.2 CONVERSION PROCEDURE AND DELIVERY DATES
2.2.1 The Buyer may indicate its choice of type of Converted Aircraft and
applicable propulsion systems upon written notice (the "Conversion
Election Notice") delivered to the Seller on or prior to the first day of
the month that is (i) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} prior to the month of scheduled delivery of the
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
Aircraft included in such conversion, {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT}, or (ii) {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} prior to the month of
scheduled delivery of the {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT} Aircraft included in such conversion,
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
On or prior to the date that is {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT} after receipt by the Seller of the
Conversion Election Notice (the "Expiration Date"), the Buyer and the
NWA-A330 Amd. 5-3
Seller shall enter into an amendment (the "Conversion Amendment") to the
Agreement relating to the Converted Aircraft and its delivery date and
make any other modification and supplementation to the Agreement in
accordance with the terms and conditions hereunder.
2.2.2 Within {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} after receipt by the Seller of the Conversion Election Notice,
a delivery date for a Converted Aircraft will be indicated by the Seller
to the Buyer. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}. Further, each such date will be subject to
prior sale or disposition until the Buyer notifies the Seller in writing
of its acceptance of such delivery date and makes any additional
predelivery payment required under Subclause 6.2 of the Agreement.
2.2.3 Conversion of an Aircraft into a Converted Aircraft shall be effective
upon execution and delivery of the Conversion Amendment by the Buyer and
the Seller and payment by the Buyer of any amounts specified under such
Conversion Amendment to be due and payable upon execution thereof. If
the Buyer and the Seller do not enter into the Conversion Amendment on or
prior to the Expiration Date, the Buyer's right to convert such Aircraft
shall terminate and neither the Buyer nor the Seller shall have any
further rights or obligations with respect to conversion of such
Aircraft. The Buyer and the Seller agree that in such case, no later than
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.3 CONVERSION IRREVOCABLE
It is further understood that any conversion that shall have been made
hereunder and agreed to by the Buyer and the Seller in the Conversion
Amendment shall be irrevocable and that thereafter there shall be no
further conversion of a Converted Aircraft.
3. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4. AIRCRAFT DEPOSITS
The Buyer has previously paid to the Seller US $125,000 (US dollars --
one hundred twenty-five thousand) per Aircraft pursuant to Paragraph 3 of
Amendment No. 3 to the Agreement. {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A
NWA-A330 Amd. 5-4
REQUEST FOR CONFIDENTIAL TREATMENT}, the Seller agrees to provide the
Buyer with {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} upon delivery of all of the A320 Aircraft (excluding any A320
Aircraft with respect to which the Seller has breached its obligation to
deliver such A320 Aircraft in accordance with the A320 Agreement, or any
document or agreement executed in connection therewith or pursuant
thereto, and any A320 Aircraft which the Seller does not deliver to
Northwest in accordance with the A320 Agreement for any reason other than
the breach by Northwest of any of its obligations under the A320
Agreement). {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
5. EFFECT OF AMENDMENT ON PREDELIVERY PAYMENTS
5.1 The Buyer and the Seller hereby agree to adjust payment dates for the
predelivery payments related to each of the Aircraft to correspond to the
revised delivery schedule agreed in Paragraph 1 of this Amendment. The
new payment dates will be determined in accordance with and will be
subject to all existing terms and conditions of the Agreement that relate
to predelivery payments. The adjusted payment dates shall be effective
as of the date of this Amendment.
5.2 The schedule of predelivery payments as set forth in Subclause 6.2.2 of
the Agreement, as amended by Amendment No. 3 to the Agreement, is deleted
in its entirety and replaced by the following:
NWA-A330 Amd. 5-5
QUOTE
Percentage of the
Predelivery New Predelivery
Payment Payment Reference
Number Payment Date Price
----------- ------------ -----------------
Already paid by the Buyer to the Seller US$ 125,000 (the
"Deposit")
1. On the first day of the {CONFIDENTIAL {CONFIDENTIAL MATERIAL
MATERIAL OMITTED AND FILED SEPARATELY OMITTED AND FILED
WITH THE SECURITIES AND EXCHANGE SEPARATELY WITH THE
COMMISSION PURSUANT TO A REQUEST FOR SECURITIES AND EXCHANGE
CONFIDENTIAL TREATMENT} prior to the COMMISSION PURSUANT TO
scheduled month of delivery set forth A REQUEST FOR
above in Paragraph 1. CONFIDENTIAL TREATMENT}
2. On the first day of the {CONFIDENTIAL {CONFIDENTIAL MATERIAL
MATERIAL OMITTED AND FILED SEPARATELY OMITTED AND FILED
WITH THE SECURITIES AND EXCHANGE SEPARATELY WITH THE
COMMISSION PURSUANT TO A REQUEST FOR SECURITIES AND EXCHANGE
CONFIDENTIAL TREATMENT} prior to the COMMISSION PURSUANT TO
scheduled month of delivery set forth A REQUEST FOR
above in Paragraph 1. CONFIDENTIAL TREATMENT}
_______________________
NWA-A330 Amd. 5-6
TOTAL PAYMENT PRIOR TO DELIVERY {CONFIDENTIAL MATERIAL
OMITTED AND FILED
SEPARATELY WITH THE
SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL
TREATMENT}
UNQUOTE
6. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
6.1 In consideration of the Seller's agreement to reschedule the delivery
dates of Aircraft Nos. 1 through 16 as set forth above, {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}, prior to
the delivery of all of the A320 Aircraft (excluding any A320 Aircraft
with respect to which the Seller has breached its obligation to deliver
such A320 Aircraft in accordance with the A320 Agreement or any document
or agreement executed in connection therewith or pursuant thereto and any
A320 Aircraft which the Seller does not deliver to Northwest in
accordance with the A320 Agreement, or any document or agreement executed
in connection therewith or pursuant thereto, for any reason (including
without limitation, pursuant to Clause 10 and Clause 11 of the A320
Agreement) other than the breach by Northwest of any of its obligations
under the A320 Agreement) {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}. Notwithstanding the foregoing, the
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}, with respect to {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}.
NWA-A330 Amd. 5-7
6.2 In the event that the {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}:
(i) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}. By its execution of this Amendment,
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} hereby agrees to the provisions of this
Subparagraph 6.2.
(ii) as a result of such action, no longer be {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT};
(iii) with respect to the {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT}, and
(iv) lose the benefit of the {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT}.
7. REMARKETING
The Buyer hereby acknowledges for the benefit of the Seller that the
Seller shall have, as of the date hereof, the absolute, unconditional and
unfettered right, at the Seller's option, to remarket to any other
existing or future customer the delivery positions formerly assigned to
the Buyer under the Agreement and rescheduled hereby.
8. APPLICABILITY OF AMENDMENT
The Agreement shall be deemed amended to the extent herein provided and,
except as specifically amended hereby, shall continue in full force and
effect in accordance with its original terms.
NWA-A330 Amd. 5-8
9. GOVERNING LAW
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. THE PERFORMANCE OF THIS AMENDMENT SHALL
BE DETERMINED ALSO IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
10. ASSIGNMENT
Notwithstanding any other provision of this Amendment or of the
Agreement, this Amendment and the rights and obligations of the Buyer
hereunder shall not be assigned or transferred in any manner
independently of the Agreement without the prior written consent of the
Seller, and any attempted assignment or transfer in contravention of the
provisions of this Paragraph 10 shall be void and of no force or effect.
11. CONFIDENTIALITY
Subject to any legal or governmental requirements of disclosure, the
parties (which for this purpose shall include their employees, agents and
advisors) shall maintain the terms and conditions of this Amendment and
any reports or other data furnished hereunder strictly confidential.
Without limiting the generality of the foregoing, the Buyer and Northwest
shall use their reasonable efforts to limit the disclosure of the
contents of this Amendment to the extent legally permissible in any
filing required to be made by the Buyer or Northwest with any
governmental agency and shall make such applications as shall be
necessary to implement the foregoing. The Buyer, Northwest and the Seller
shall consult with each other prior to the making of any public
disclosure, otherwise permitted hereunder, of this Amendment or the terms
and conditions thereof. The provisions of this Paragraph 11 shall survive
any termination of this Amendment.
NWA-A330 Amd. 5-9
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and return a
copy to the Seller.
AVSA, S.A.R.L.
By: /s/ Xxxxxxxxxx Xxxxxx
-----------------------------
Its: Chief Executive Officer
-----------------------------
Accepted and Agreed
NORTHWEST AIRCRAFT INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------
Its: Vice President-Finance and Treasurer
---------------------------------------
Consented to:
NORTHWEST AIRLINES, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------
Its: Senior Vice President-Finance and Treasurer
------------------------------------------------
NWA-A330 Amd. 5-10
